Regular exercise not inconsistent with limitations in personal injury case: BC Court of Appeal

Difficulty reconciling workouts with physical incapacity did not undermine victim's credibility

Regular exercise not inconsistent with limitations in personal injury case: BC Court of Appeal

The British Columbia Supreme Court has refused to rule against the credibility of a plaintiff in a personal injury case who maintains an extensive exercise regime despite claiming that she suffered physical limitations from a motor vehicle accident.

In Dhanda v. Thind, 2022 BCSC 1003, Manraj Kaur Dhanda’s vehicle was struck from behind by a truck while stopped at a red light in Surrey, BC. At the time of the accident, she was a second-year student at the University of British Columbia (UBC).

Prior to the accident, Dhanda was involved in competitive soccer, gymnastics, weight training, and running. In addition to her studies, she also helped with the housework, cooked at a Sikh temple on Sundays, and helped with the administration and marketing of her family’s construction business.

As a result of the accident, Dhanda suffered from persistent pain in her neck, back, shoulders, and left knee. She had trouble sleeping, headaches, dizziness, and sensitivity to light and noise. Dhanda declined acceptance into UBC’s dual-degree business program because she feared the workload would be too much given her discomfort and difficulties in concentrating. She also stopped cooking at the temple, working for the family’s business, playing soccer, or doing gymnastics.

In 2020, Dhanda decided to pursue nursing under UBC’s accelerated nursing program. She was able to perform the clinical rotations required by the program, but her instructor expressed concerns about Its effects on Dhanda’s physical condition. Further, a specialist in musculoskeletal medicine and rehabilitation testified that Dhanda was “employable as a nurse but with potential durability and longevity issues.”

Dhanda feared that her injuries would preclude the physically demanding jobs that appealled to her, so she claimed damages of $640,000 to $790,000. The defendants sought to reduce it to a range of $120,000 to $170,000, arguing that Dhanda’s functioning since the accident was better than she alleged. They pointed out that Dhanda engaged in four gym workouts each week, which were inconsistent with her claim that her symptoms had worsened over time until recently plateauing.

Reconciling exercise regime with physical limitations

While the court agreed with the defendants that Dhanda’s exercise regime was difficult to reconcile with the physical limitations she described at trial, this discrepancy did not undermine Dhanda’s overall credibility about her condition.

The court found that Dhanda’s evidence was generally reasonable and supported by her family members. In addition, her exercise regime was consistent with the findings and opinions of doctors regarding her employability as a nurse.

The court also found that Dhanda was not given a meaningful opportunity in cross-examination to explain how she reconciled her exercise routine with her alleged discomfort and functioning difficulties, so the court was reluctant to draw negative conclusions about her credibility on this basis.

Future loss of earning capacity

Dhanda originally sought an award of $450,000 to $550,000 for future loss of earning capacity. She argued that she was unlikely to be capable of the more demanding and better-paid nursing jobs that she preferred, such as on an emergency ward. On the other hand, the defendants contended that the award should only be $50,000 to $75,000 because Dhanda failed to prove a real and substantial possibility of any future income loss given her success and high functioning since the accident.

The court found that the evidence established the real and substantial possibility of future events giving rise to Dhanda’s loss of capacity. While Dhanda was able to perform all the general duties of a registered nurse, the court found that her injuries would likely limit her ability to perform some of the more physical work. The court concluded that there was a real and substantial possibility that these limitations would cause her financial losses and an award of $220,000 for future loss of earning capacity was reasonable.

The court also awarded nonpecuniary damages, cost of future care, and special damages. In total, Dhanda was awarded $328,210 in damages.

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