Shergill v. Vuong,


2008 BCSC 784

Date: 20080509
Docket: M055352
Registry: Vancouver


Sukhvir Kaur Shergill



Van Son Vuong, Shaganjit Dhillon
and Jaspal Singh Dhillon


Before: The Honourable Madam Justice Stromberg-Stein

Oral Reasons for Judgment

May 9, 2008

Counsel for the Plaintiff:

James T. McBride
Sanjeeta K. Johal

Counsel for the Defendants:

Stephen A. Leong

Place of Trial/Hearing:

Vancouver, B.C.

[1]                THE COURT:  I am giving oral reasons today so that the parties do not have to wait.  I will do my best, using the parties’ materials liberally, and reserve the right to edit substantially.

[2]                The plaintiff, Sukhvir Shergill, claims damages for loss and injury sustained in a motor vehicle accident on April 13, 2005.  The plaintiff is 26 years old and came to Canada from India in 2003.  She is not fluent in English.  Her education in India was one year short of a Bachelor of Arts degree.  The plaintiff is married, with a one and a half year old son, and lives in Surrey with her husband in a home owned by her sister’s husband.  There are seven adults living in that household including the plaintiff and her husband, her sister, her brother, her sister’s husband, her mother and father.  Two children live there as well.

[3]                At the time of the accident, Ms. Shergill was a passenger in the rear seat behind the driver’s seat and was wearing her seatbelt.  The vehicle she was in collided with a vehicle that turned left in front of it at an intersection.  Ms. Shergill was aware of the imminent impact and was able to brace her hands on the seat in front of her.  This caused injury to her wrist.  She was taken to Surrey Memorial Hospital by ambulance.  She was discharged after a few hours.  Her wrist X-ray was normal.  Her other complaints at the time were injuries to her neck and lower back.

[4]                As a result of the accident, the plaintiff sustained injuries to the neck, lower back and right wrist.  The right wrist injury was the most significant.

[5]                The defendants have admitted liability and that the plaintiff sustained some degree of injury and disability.  They take issue with the degree and duration of the plaintiff’s injuries, the degree and duration of her claimed disability, including her past wage loss and loss of earning capacity, and the plaintiff’s credibility.

[6]                The defendants concede that the plaintiff has suffered a fibro-cartilage tear in the right wrist, and may have suffered a scapholunate ligament injury as a result of the accident.

[7]                Following the accident, Ms. Shergill was treated by her family physicians, Drs. Jassal and Verma.  Neither doctor testified at trial.  The clinical records were admitted as business records by consent.

[8]                On April 25, 2005, Ms. Shergill commenced physiotherapy at Surrey Sports Rehabilitation following Dr. Jassal’s referral.  She had approximately 14 sessions and there was some improvement in her neck.  She claimed weight exercises during the physiotherapy sessions aggravated her wrist pain.  Her physiotherapist testified that Ms. Shergill’s subjective complaints of wrist swelling were not objectively observed by him or justified.  In addition, there were variances in her range of motion of her neck at the time he was working with her.

[9]                In July 2005, Ms. Shergill was referred to Dr. Cecil Caines, an orthopaedic surgeon, regarding her right wrist symptoms.  Dr. Caines sent her for a bone scan and an MRI of her right wrist.  That MRI was completed on November 17, 2005 and revealed a tear of the triangular fibro-cartilage complex (the “TFC”).  Dr. Caines referred Ms. Shergill to Dr. Jackson, another orthopaedic surgeon, in January 2006.  On February 8, 2006, Dr. Jackson injected Ms. Shergill’s right wrist with cortisone.  Ms. Shergill felt some relief for approximately two to three months but then the pain returned.  Dr. Jackson recommended arthroscopic surgery of the wrist as early as summer 2007.

[10]            In February 2008, Ms. Shergill returned to Dr. Jackson and he again advised her that she required surgery of her right wrist.  Ms. Shergill decided to wait until her son is four years old before undergoing surgery.

[11]            At present, Ms. Shergill claims continued symptoms of her neck, low back and right wrist.  She takes prescription medication on a daily basis and uses pain relief cream every morning.  She says she wears a splint on her right wrist when it is painful.  She says she does daily stretches and exercises and goes for walks or uses the treadmill at home.  Ms. Shergill says that her chronic pain and ongoing symptomology in her neck, low back and right wrist continue to have significant impact on her vocational, recreational and household activities.

[12]            At the time of the accident, Ms. Shergill was employed as a cutter and folder at Breeta Sales Ltd.  She worked full-time on a production line folding and cutting plastic sheets that are used to wrap lumber.  Her work at Breeta Sales was fast‑paced and repetitive.  She was required to stand on her feet all day.  She gave evidence that some bundles she had to move weighed up to 35 to 40 pounds.  Her evidence is not entirely confirmed by the evidence of her supervisor at Breeta Sales, Harjinder Cheema.  It seems she mostly worked with items weighing less than four pounds; however, she may have been required, with another person, to move bundles that may have weighed up to 40 pounds.

[13]            Prior to the accident, Ms. Shergill did not have any difficulty performing her job.

[14]            After the accident, she did not return to Breeta.  She says this was due to her accident related injuries.  She relies on a medical note from Dr. Jassal provided to her for her employer.  On September 21, 2005, Dr. Jassal advised Ms. Shergill that she could return to work, but at light duties only, with no lifting over five pounds.

[15]            Ms. Shergill gave evidence that she contacted her supervisor, Mr. Cheema, in September 2005 and he told her there were no light duties available and that the positions available involved repetitive work and heavy lifting.  Where Ms. Shergill’s evidence conflicts with Mr. Cheema’s, I reject it and accept Mr. Cheema’s evidence.  I will explain this in more detail later in these reasons.

[16]            Ms. Shergill says she attempted to look for lighter work.  In October 2005, she obtained employment as a cashier at Fruitacana.  She said she was unable to continue this work beyond two weeks because her wrist and low back pain were aggravated.  At this point, she was frustrated about her inability to perform as a store cashier and her inability to work at Breeta.  Therefore, she enrolled in ESL classes hoping to improve her English so she could secure lighter employment that would not aggravate her injuries.

[17]            I note that there is no medical evidence that Ms. Shergill could not work after September 21, 2005.

[18]            In April 2006, Ms. Shergill applied for employment as a dry folder at K-Bro Linen Systems Inc.  On her application form, she indicated that she had been laid off from Fruitacana.  She also indicated that her job at Breeta had ended because work was slow.  She agrees these were lies.  She says she was desperate for employment.  She was scared that she would not get hired if she disclosed the real reason she left her employment was because of her motor vehicle accident related injuries.

[19]            On April 6, 2006, Ms. Shergill commenced employment at K-Bro as a dry folder.  Repetitive movement of the wrist was required and she had to stand on her feet all day.  She says the nature of the work aggravated her neck, low back and right wrist symptoms.  However, at no time did she tell her employer about her difficulties.  Her employer did not note that she was having difficulties.  A representative of her employer testified and indicated that light duties were available to injured employees.  Ms. Shergill never availed herself of this option.

[20]            In September 2006, Ms. Shergill fainted at work.  She initially took sick leave and then she was off on maternity leave.

[21]            At this point, she decided to explore career options because of her continued problems with her neck, back and right wrist which remained symptomatic on a daily basis.  She was concerned about being able to be competitive in the labour market at her young age.  She considered but abandoned career options as a payroll administrator or in insurance because she was concerned sitting at a computer or typing on a keyboard would aggravate her injuries.

[22]            She enrolled in a resident care attendant program at Sprott-Shaw Community College in October 2007 because she felt this was a flexible job that would allow her to change positions and vary her hours.  She has done a practicum and realizes that she continues to have neck, low back and wrist pain doing some of her job duties.

[23]            She claims she has limited employment prospects.  She feels she may have to restrict herself to home support work and work only two hour shifts.  Yet she also testified that the resident care attendant job is not to her liking; she does not like working with depressed, naked people.

[24]            After the accident, Ms. Shergill says that her injuries prevented her from doing activities she enjoyed, particularly cooking and cleaning.  She claims her injuries impeded her ability to provide care for her child, namely bathing, lifting and holding him.  She claims that at nighttime she was often unable to go to him and soothe him because of pain and numbness in her hand.  She claims her recreational activities are impacted because she can no longer go on long drives with her husband due to aggravation of her injuries.  She has difficulty doing Punjabi dancing because it involves clapping and jumping.  She claims she was not able to go to India with her husband and new baby.

[25]            The medical evidence, for the most part, is not disputed.  Dr. Hershler agreed with Dr. Hepburn’s diagnosis that Ms. Shergill has a muscular injury to the neck and shoulders and a ligamentous injury to the right wrist.  Dr. Hershler provided a guarded prognosis for recovery.  I note that in doing so he relied on a number of unproven assumptions.  The most significant one is regarding the TFC tear.  The extent of injury to the hand can only be determined by an arthroscopy; it is common ground amongst all the doctors that this is needed to determine the cause of Ms. Shergill’s wrist complaint.

[26]            Dr. Hepburn adopted the opinion of Dr. Gropper, which is not before this court, regarding diagnosis, causation and prognosis.  He adopted the opinion that Ms. Shergill sustained an injury to her right wrist as a result of the accident requiring wrist arthroscopy to determine if injury has occurred in the scapholunate ligament and whether the injury is partial or complete and requires any further joint reconstruction.

[27]            Dr. Hepburn agreed with Dr. Hershler that Ms. Shergill’s muscular injury to the neck and shoulders was due to the accident.  Dr. Hepburn, when he saw Ms. Shergill in March of 2007, expected gradual improvement of the neck and low back; however, his prognosis was not borne out.  When Dr. Hershler saw Ms. Shergill a month later, she still had the same complaints.

[28]            Dr. Hepburn and Dr. Hershler agreed that 10 to 20 percent of individuals will continue to have constant pain and will not recover from their injuries.  The likelihood of recovery after two, or in this case three, years of symptoms is much lower.  However, it is difficult to say what category the plaintiff falls into in this case.

[29]            There are some issues with respect to Ms. Shergill’s credibility.  For the most part, I was impressed with her appearance and manner in which she gave evidence, but there are some inconsistencies in her evidence.  One inconsistency is the number of times she spoke to Harjinder Cheema.  In her direct examination she testified they spoke once; in cross-examination she said twice and then she changed it to three times.  Second, her credibility is impacted by her lies on her application for K-Bro.  Third, she never told her bosses at K-Bro that she had any difficulty doing the job, although she explained they would have sent her home.  Fourth, in a WCB claim she filled out for an injury to her thumb, dated July 26, 2006, she referred to her right thumb and hand.  She described how, as she was feeding a duvet into the machine, her thumb was caught in the duvet and was bent back.  She said her thumb and entire hand swelled.  She reported on that form that her right hand was swelling badly within a half an hour of injury.  Here, she testified that when she says “hand” she meant “thumb”, her English is not good; she did not know the difference between hand and thumb.  She denied an injury to her right wrist.  In my view that is simply not credible.  There is concern that Ms. Shergill did not reveal the WCB claim to Dr. Hershler, which is obviously a significant oversight.

[30]            The inconsistencies between her evidence and Cheema’s evidence, which I explore in the context of past wage loss, casts doubt on the credibility of some of her evidence.  Also, there is some inconsistency between Ms. Shergill and her husband’s evidence regarding her ability to cook and care for her child and about the trip to India.  And finally, there are some objective and subjective signs of inconsistency in the medical and physiotherapy evidence.

[31]            The plaintiff seeks damages as follows: $60,000.00 for non-pecuniary damages; $18,460.00 for past wage loss; $667.61 for special damages; $60,000.00 for diminishment of earning capacity or loss of future income; $9,366.50 for cost of future care; $15,000.00 for loss of housekeeping capacity; $8,736.00 for an in-trust claim; and costs.

[32]            To support her claim for non-pecuniary damages, the plaintiff relies on the following authorities, based on similar cases, which awarded $45,000.00 to $50,000.00: Mawji v. Hendry, 2007 BCSC 1880; Tardiff v. Toews, 2004 BCSC 1009; Delgado v. Parra, 2002 BCSC 1345; and Ching v. McCabe, 2006 BCSC 1589.

[33]            The plaintiff argues that at the time of the accident, she was a young woman with a strong work ethic and a long life ahead of her.  However, the life she has ahead of her now is not likely to be enjoyable as a result of the injuries sustained in the accident.  Ms. Shergill claims that the injuries cause her pain, discomfort and sleep disruption.  They interfere with her ability to use her hands, do physical work around the house, her physical employment, her love of dancing and long drives.  This causes her stress about what might happen in the future.  She is concerned particularly that there is no guarantee her symptoms will resolve.  Based on all of these circumstances, including the nature of the injuries, the pain and discomfort they have caused her and will cause her in the future, and the extent to which they have interfered with and will continue to interfere with her life, Ms. Shergill submits the award of $60,000.00 for non-pecuniary damages is appropriate due to the fact she has three significant compounding injuries.

[34]            It is the position of the defendants that the appropriate range of damages is $25,000.00 to $30,000.00.  The defendants rely on a number of cases: Borth v. Lee, 2005 BCSC 1517; Cryderman v. Giesbrecht, 2006 BCSC 798; Michaud v. Machtaler, 2004 BCSC 829; Saluja v. Wise, 2007 BCSC 706; and Vasilyev v. Fetigan, 2007 BCSC 1759.

[35]            Having regard to the positions of counsel and the authorities they referred to, I am satisfied that in the circumstances of this case, given the nature and the extent of the plaintiff’s injuries, that an award of $35,000.00 for non-pecuniary damages is appropriate.

[36]            Turning to past wage loss, the plaintiff claims that she was disabled from employment from the date of the accident to April 4, 2006 and was unable to return to her employment at Breeta because light duties were not available.

[37]            The plaintiff’s evidence in direct examination was that she had a conversation with Harjinder Cheema after the accident about returning to work in September 2005 where he apparently told her no light duties were available.

[38]            On cross-examination, she indicated that in that conversation, Mr. Cheema said she had to lift at least 25 pounds.  As noted, her evidence about the number of times that she spoke with Mr. Cheema changed.  She remembered the first conversation by telephone after the accident after she had faxed the doctor’s note to Breeta.  The second discussion, she indicated, was also by telephone in September 2005 when she told Mr. Cheema she could only lift five pounds and he said she had to lift 25.  The third discussion, she said, was a simple greeting when they encountered at temple.  She was confronted in cross-examination with the suggestion that in fact there were no conversations with Mr. Cheema at all.  She answered, “Yes,” and then said she also had encountered him at temple.

[39]            Mr. Cheema testified that he was a warehouse manager at Breeta for six years.  Ms. Shergill worked at two workstations 20 percent of the time cutting and 80 percent folding.  In both stations, she worked with another worker.  Her shifts were five days a week, from 6:00 a.m. to 2:30 p.m.  After the accident, she never returned.  He never spoke to her about returning to work.  He never spoke to her about the availability of light duties.  He had no discussion with her about being required to lift 25 pounds at work.  He never saw her at temple.  The only time he spoke to her was in March 2006 when she advised him she was not returning to work and asked for her holiday pay.

[40]            Ms. Shergill says she attempted to obtain lighter employment at Fruitacana but that her injuries interfered with her ability work there.  Therefore, she enrolled in ESL courses.

[41]            I note that when she worked at K-Bro, she did so without complaint during her time there.  That job was similar to her work at Breeta.

[42]            Her past wage loss claim is from the date of the accident, April 13, 2005 to the date of her employment at K-Bro on April 4, 2006, less her earnings at Fruitacana, which she said were $400.00, and minus deductions.

[43]            I agree with the defendants that the appropriate time off work for the plaintiff was until September 15, 2005, when she began her job at Fruitacana.  There is no medical evidence that she was unable to work beyond Dr. Jassal’s note of September 21, 2005.  Therefore, I calculate past wage loss at $7,812.00 gross, subject to Part 7 and statutory deductions.

[44]            Special damages are set out by the plaintiff at Exhibit 2, Tab 1.  I award special damages in the amount of $486.99.  There is no evidence to support the claim of $200.00 in prescription receipts that have been misplaced.

[45]            Regarding diminishment of earning capacity, the plaintiff submits she has lost a capital asset.  She is 26 years old.  She is right hand dominant.  She has sustained a significant injury to her right wrist requiring arthroscopic surgery.  Dr. Hershler noted that she would continue to experience pain with any sustained repetitive movement of the right wrist because the injury is in an area of the wrist that is constantly stressed.  But she has not had arthroscopic surgery as recommended, and there is no basis for Dr. Hershler’s assumptions guised as opinion; accordingly I give his opinion less weight.  In any event, Ms. Shergill has indicated difficulty standing and sitting for long periods, bending, performing heavy lifting and keeping flexed.  She has attempted to retrain as a resident care attendant.  Her counsel argues that this casts doubt on whether she can ever sustain employment on a long-term basis given the problems she has experienced in this job.

[46]            The relevant law is set out in plaintiff’s submission quoting Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 at 59 per Madam Justice Southin:

Because it is impairment that is being redressed, even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for the impairment.  He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income earning ability.

[47]            In this case, it is argued that Ms. Shergill’s injuries have diminished the value of her capital asset because the range of employment options available are narrowed as a result of her injuries, and until arthroscopic surgery is done, as required, it is hard to assess whether and to what extent this is the case here.  Ms. Shergill is obviously less capable overall of all types of employment, or less marketable or attractive as an employee to a prospective employer as she will be limited to some extent.  Therefore, she is less valuable to herself as a person capable of earning income in a competitive market.  But as I said, it is difficult to assess to what extent in part because she has chosen to delay arthroscopic surgery.

[48]            Counsel for the defendants argues that between the accident on April 13, 2005 and September 21, 2005, when Dr. Jassal indicated that she could return to work, she made no attempt to return to work.  She did go to Fruitacana unsuccessfully.  She then did not attempt to enter the workforce until April 2006, where she apparently worked without any difficulty.  She became pregnant.  She went on maternity leave.  There is evidence that she, in fact, had two other unsuccessful pregnancies at some point, apparently subsequent to the accident.  When her maternity leave ended in December 2007, she had been off work for about 15 months.  She started her resident care attendant course in October 2007 before her maternity leave ended.

[49]            There is no evidence since September 2005 about why she could not work.  She did, in fact, work successfully for five months, before she took maternity leave.  She is now retraining.  I agree with the defendants that this is a natural progression for somebody in her position and I also note defendants’ counsel’s observation that she has never worked a full year.  This is all relevant to contingencies, which are, in this case, mostly negative in terms of assessing the diminishment of earning capacity of Ms. Shergill.  Having regard to the contingencies, most of which are negative, I am satisfied that a modest award is appropriate, in the amount of $20,000.00.

[50]            For cost of future care, there is no evidence to support a claim for pulsed signal therapy.  The plaintiff argues it cost $2,000.00 in another case.  It is impermissible to rely on another case to establish the cost of such therapy.  Although Dr. Hershler suggested physiotherapy and chiropractic therapy, in my view, there is no basis to support these suggested treatments.  While I will not discuss it in great detail, some of the conditions that Dr. Hershler observed while examining the plaintiff and described in cross-examination seem to have no relation to this accident.  I am referring to alignment and facet joint issues.

[51]            The plaintiff last had physiotherapy July 11, 2005.  There is no evidence she has ever had chiropractic treatment and I do not see the appropriateness of awarding it at this time.  It is clear that she still has a wrist problem and she uses creams and medication.  It is difficult to assess to what extent or how long she will require this.  A modest award is appropriate.  Having regard to the creams and pain medication for her wrist, I award $1,000.00 for cost of future care.

[52]            With respect to loss of housekeeping and the in-trust claim, neither was specifically pled.  I decline to rule on whether these claims have to be pled because, in my view, neither claim can succeed.  I am not satisfied on a balance of probabilities that these claims were established on the evidence.

[53]            There are inconsistencies about the degree and duration of Ms. Shergill’s disabilities.  I am mindful of the fact that she is one of seven adults living in a house where there is evidence that responsibility is shared.  As her husband said, "We are a joint family; we all live together".  I have considered the issue of loss of housekeeping capacity in the award I have made for non-pecuniary damages.  I note there is no medical evidence to support a claim of inability to do housekeeping chores or to support her need for housekeeping assistance.  I dismiss that part of the claim.

[54]            In summary, I award the plaintiff the following damages:

a)      $35,000.00 for non-pecuniary damages;

b)      $7,812.00 for past wage loss, subject to Part 7 and statutory deductions;

c)      $486.99 for special damages;

d)      $20,000.00 for diminishment of earning capacity; and

e)      $1000.00 for cost of future care.

“The Honourable Madam Justice Stromberg-Stein”