Minor vehicle damage, major bodily injury
In a recent case, Anderson v. Gagnon 2018 BCSC 98, the Supreme Court of British Columbia affirmed the rulings of Gordon v. Palmer, [1993] B.C.J. No. 474 (S.C.); Kallstrom v. Yip, 2016 BCSC 829; Lubick v. Mei, 2008 BCSC 555; and Duda v. Sekhon, 2015 BCSC 2393 on the principle that collisions involving minor damage to motor vehicles is not “the yardstick by which to measure the extent of injuries suffered by the plaintiff.”
In Anderson v. Gagnon, the plaintiff was involved in two very minor motor vehicle accidents which resulted in injuries which were the subject of the lwsuit. The first collision occurred April 21, 2011, when Ms. Anderson’s Dodge van was struck from behind while waiting at a red light on 96th Avenue in Surrey. Her vehicle was at a complete stop, foot on the break, when she was jolted forward as a result of the impact caused by the defendant Darryl Gagnon (“Mr. Gagnon”). There was a small indentation in her rear bumper and some other minor damage. Liability for this accident was admitted by Mr. Gagnon. Mr. Gagnon said his car only “touched a bit” referring to the impact. He believed the collision was modest and no injury was caused to the plaintiff. He saw a scratch on her vehicle and a screw mark on her bumper. He said he was almost stopped when he made contact with the plaintiff’s bumper. Mr. Gagnon felt “scammed” at the plaintiff’s mere request for their insurance documents.
After the accident Ms. Anderson drove home. She went to a walk-in clinic in North Vancouver that evening where the doctor prescribed pain medications. The plaintiff followed the doctor’s suggestion to obtain massage therapy for her neck and upper back. X-rays were taken at this time. She visited her family doctor, Dr. Dorothy Janzen (“Dr. Janzen”), in early May after receiving two massage treatments.
In the second accident, the plaintiff was stopped at a red light with her foot on the brake when Mr. Seo’s vehicle struck her from behind. She felt her seatbelt tighten but did not brace herself. The impact damaged the bike rack on the rear of her vehicle and caused some bumper dislocation. Mr. Seo agreed he had stepped hard on his gas pedal and accelerated forward for two to three seconds before colliding with the plaintiff’s vehicle. He did not observe any damage on the plaintiff’s car but noted a minor scratch on the front of his vehicle. The plaintiff said she did not see any damage to the body of her vehicle at the time but noticed some damage to her bicycle rack mounted on the back of her vehicle.
After the second accident, the plaintiff noticed some soreness and later noted some aggravation in her neck and back together with some increase in symptoms in her hip. Before the first accident, the plaintiff was a healthy, well-functioning, social worker raising three children with her husband. She did not suffer from any physical ailments although she acknowledged that, in approximately 2010 she had suffered an injury to her left thigh while skiing. She also was injured when falling off her bicycle in 2011, and after this incident she had two physiotherapy treatments for her thigh and elbow but was completely resolved within one month. By the time of the first accident she was fully recovered.
In determining whether the plaintiff was exaggerating her claims the court held:
[87] The defendants contend that both accidents involved low velocity collisions involving minimal damage to all vehicles involved. The defence submits that the force of the collisions could not reasonably cause more than minimal injuries and the plaintiff is exaggerating her claim.
[88] No evidence was tendered to substantiate the contention that the absence of significant vehicle damage precludes the possibility of significant injury. The defendants contend that the plaintiff has exaggerated her pain symptoms and that, in view of the low impact collision with minimal damage, she cannot be believed in her description of the injuries and their effects.
[89] On this point, the plaintiff relies on the decisions of Gordon v. Palmer, [1993] B.C.J. No. 474 (S.C.); Kallstrom v. Yip, 2016 BCSC 829; Lubick v. Mei, 2008 BCSC 555; and Duda v. Sekhon, 2015 BCSC 2393 for the principle that collisions involving minor damage to motor vehicles is not “the yardstick by which to measure the extent of injuries suffered by the plaintiff.”
[90] On this preliminary question, I accept the plaintiff’s argument and will consider the plaintiff’s claims based on the evidence presented and not on any speculative theory that in the absence of evidence of significant vehicle damage, this plaintiff has exaggerated her symptoms. There was clear objective evidence of the plaintiff’s ongoing injuries in the observations of Dr. Janzen. She said that in 2011, 2012, 2015, and 2016 there were visible signs of spasm and prominent spasms in the paraspinal muscles.
[91] I also accept the plaintiff’s evidence concerning her injuries notwithstanding the defendant’s submissions to the contrary. Her evidence was not significantly undermined in cross-examination and was consistent with the preponderance of other evidence.
[92] In this case, I am satisfied that the plaintiff has suffered a myofascial injury to the paraspinal muscles of the back of her neck, the trapezius rhomboid muscles of the upper back that are chronic and will be ongoing. There are no findings of underlying disc injury or nerve root impingement or other potential injuries.
The court accepted the expert evidence of the plaintiff and was satisfied the plaintiff endured intermittent variable pain that is most taxing on days when she is more physically active or working. The court found that the plaintiff’s symptoms tend to worsen between physiotherapy or massage treatments. The symptoms rise to very discomforting levels and are ameliorated by those treatments and it would appear this pattern will continue for the foreseeable future. These injuries have limited her ability to enjoy dancing, skiing, snowshoeing, prolonged cycling, and activities with her children. The evidence suggested that she is fit and worked consistently at maintaining her physical condition notwithstanding the symptoms of her injuries. The court awarded her $75,000 in non-pecuniary damages. The total award including past wage loss, loss of future earning capacity, future care costs and special damages were $362, 105.50.