IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110609

Docket: M091787

Registry:
Vancouver

Between:

Michael
Hough

Plaintiff

And:

Mark
Wyatt

Defendant

Before:
The Honourable Madam Justice Stromberg-Stein

Oral Reasons for Judgment

In
Chambers

[1]          
THE COURT:  The 49-year-old plaintiff, Michael Hough, claims damages for
injuries sustained in a motor vehicle accident on March 9, 2009. Do I have that
date right?

[2]          
MR. GAUTAM:  March 3.

[3]          
THE COURT:  March 3^rd, 2009. This trial concerns an
assessment of damages only. At an earlier trial dealing with the issue of
liability, Baker, J. found Mr. Hough was not liable for a T-bone collision
with the defendant’s car that occurred after the defendant did a U-turn in
front of Mr. Hough’s vehicle. Both vehicles were totalled in the accident.
The circumstances of the accident are set out fully at Hough v. Wyatt,
2010 BCSC 1375.

[4]          
In this motor vehicle accident, Mr. Hough claims he injured his
right wrist, right knee, neck, and lower back. There were no objective symptoms
of injuries documented by his doctor. He had pre-existing longstanding serious
neck and back pain, as well as many other medical issues. Mr. Hough has
demonstrated a longstanding ability to be accident prone and has suffered many
serious injuries. He has had multiple WCB claims from work-related injuries. His
most significant accident was a work injury to his back in 2003. This injury,
combined with a congenital condition, did not bode well for his future working
in the construction industry, where he started out as journeyman pipe layer,
then became a heavy equipment operator, and later retrained to work as a first
aid attendant and a construction safety officer.

[5]          
He seeks non-pecuniary damages of $70,000 to $80,000, claiming the motor
vehicle accident put him over the top and he can now only function with
difficulty. He seeks past wage loss of $81,000, alleging he has been unable to
work since the summer of 2009 for reasons he attributes to the accident. It is
the position of Mr. Hough that he was able to work before the accident of
March 3, 2009. He tried to return to work after the accident and lasted only a
short time before he found he was unable to work at all.

[6]          
He seeks damages for future loss of capacity of $280,000 based on six
years of employment he feels is lost to him because of the accident. He seeks
the cost of housekeeping assistance for five years based on $400 a month, in
the amount of $20,000 to $25,000 in total. He claims he has paid this in cash,
$400 a month, to Mr. Klaus, a friend, who testified that he received this
money and he provided housekeeping services to Mr. Hough.

[7]          
Mr. Hough maintains that his broken wrist in a 2011 accident is causally
connected to the car accident, as his leg collapsed causing him to fall. He
claims he is entitled to an additional compensation in the amount of $5,000 to
$8,000.

[8]          
It is the position of the defendant that non-pecuniary damages are
modest at $5,000 to $10,000. Mr. Hough reported to his doctor that his
knee and wrist felt better by May 2009, and returned to work for a short time
in August and September 2009. Giving him the benefit of the doubt, any
exacerbation of his previous conditions from the accident was resolved within
four months to, at most, 12 months. The defendant’s position is there is no
past income loss or loss of future earning capacity. Further, there is no
evidence of any causal connection between the accident and the broken wrist. Finally,
the defendant argues that there is no evidence to support a housekeeping award.

[9]          
Mr. Hough was a very difficult witness. He is a poor historian,
which is understandable given his extensive medical history. However, he bears
the burden of proof. He was argumentative, abrasive, sometimes rude, often
unresponsive, and many times inconsistent in his evidence. Mr. Hough clearly
demonstrates an attitude of entitlement to insurance benefits, at one point
indicating he doesn’t understand the problem here, it is only insurance money. He
reports everything, no matter how inconsequential, even a broken fingernail, so
if there is a problem in the future, he can get compensation. The trouble for Mr. Hough
is he was a medical disaster before the accident, and the defendant is not
obliged to pay for all that ails him or ailed him. Mr. Hough’s
pre-existing medical condition, his original position, as outlined in the
evidence of Dr. Waiz, and what Mr. Hough can recall, would have
manifested debilitating effects in any event, regardless of the accident. His
original condition would have detrimentally affected him even absent the
defendant’s negligence. The defendant is not required to compensate him for
debilitating effects not caused by the accident.

[10]       
Dr. Waiz, Mr. Hough’s family doctor since 2001, had seen Mr. Hough
195 times up to the accident. These office visits dealt primarily with pain issues
associated with his neck and back and other parts of his body. Dr. Waiz
treated Mr. Hough with increasingly high doses of narcotic medication,
including Percocet and oxycodone [generic name: MC], on top of Tylenol 3 and
medical marijuana. I understand from Mr. Hough that he, in fact, uses
illicit marijuana. Mr. Hough saw many other doctors but there are no
medical/legal opinions from these doctors.

[11]       
Dr. Waiz offers the opinion that, as a result of the accident,
based on Mr. Hough’s subjective reporting, Mr. Hough suffered a
sprain of his right wrist, left shoulder strain, and aggravation of his chronic
neck and back problems. His wrist remains symptomatic and may never resolve,
and Dr. Waiz opines that he has not recovered from the aggravation he
suffered in the accident to his neck and back. Dr. Waiz testified that
although Mr. Hough was able to work intermittently despite his neck and
back problems prior to the accident, he’s been unable to work since. Due to his
worsening neck and back pain, Dr. Waiz thinks that, even without the
accident, Mr. Hough would have been unable to work within several years,
by which he seems to guesstimate at three to five years, but he offers the
opinion the accident has accelerated this happening.

[12]       
In offering his opinion in his medical/legal report of March 24, 2011, Dr. Waiz
did not perform or arrange to have performed any functional capacity evaluation
or physical testing of Mr. Hough’s abilities. His opinion is based solely
on what Mr. Hough reported about his limitations. In offering his opinion
about the accident contributing to Mr. Hough’s inability to work, Dr. Waiz
seemingly was not aware that Mr. Hough had, in fact, worked in the oil
sands after the accident. When he was told this, he indicated that Mr. Hough
would not have able to work consistently. In fact, Dr. Waiz notes Mr. Hough
has been unable to work consistently in any occupation since 2003. As I have
indicated, Dr. Waiz was surprised that Mr. Hough could work for 20
days in the oil sands.

[13]       
In the doctor’s opinion, the motor vehicle accident has contributed to Mr. Hough’s
being unable to work, but it is not the only reason. However, as indicated, his
inability to work predated the accident. Both before and after the accident, Mr. Hough
had only ever worked intermittently. In addition to the 2003 WCB claim where he
injured his back, he had three WCB claims before this accident: two in 2008 and
one immediately before in February 2009. Just before the accident he was not
working because of a work-related head injury he sustained in February 2009.
Dr. Waiz has never told Mr. Hough not to work. He felt Mr. Hough
could work at an appropriate job and commented that while work may increase his
pain, otherwise there would be no downside to Mr. Hough working.

[14]       
Dr. Waiz’s evidence is unsatisfactory on many levels, not the least
of which his manner in which he managed Mr. Hough’s care with increasing
doses of narcotics. His records are unreliable. He blames computer programs and
computer generated forms. He has been willing to fill out reports to benefit Mr. Hough,
for example, claiming all Mr. Hough’s drugs were WCB-related so Mr. Hough
could be compensated, and claiming a wrist fracture was a WCB injury due to
ongoing weakness and pain in his right leg. This is the same broken wrist that Mr. Hough
now claims was caused by the accident for the same reason. Where it has suited Mr. Hough,
Dr. Waiz has reported to WCB Mr. Hough is unable to work in any
capacity. Now he was reporting to this court that, because of the accident, Mr. Hough
cannot work. The concern is he is parroting what Mr. Hough wants him to
say.

Non-Pecuniary Damages

[15]       
In terms of non-pecuniary damages, the weight of the evidence
establishes no new injuries to Mr. Hough, save for the right wrist. His right
wrist continues to bother him post-accident. He saw a specialist but there is
no medical opinion before the Court, other than that of Dr. Waiz, who
would adopt what the specialist said, that 80 percent of such wrist injuries
would clear up in two years. It is well past two years now. Apparently Mr. Hough’s
subjective reporting is that his wrist injury has not resolved. He started
using a cane following the accident but the reason for this is unclear. It
seems one day he just showed up in his doctor’s office using a cane.

[16]       
The weight of the evidence is that the motor vehicle accident
superimposed injuries on pre-existing neck, shoulder, and back problems,
aggravating them to a minor degree. By May 2009, he reported to Dr. Waiz
his wrist and knee were better. He was working in the tar sands oil project and
worked as a landscaper after that. The motor vehicle accident had limited
effect on his life, although he initially claimed it effectively deprived him
of everything he liked to do. However, he was confronted with a WCB impairment
evaluation form from 2008 which revealed long before the accident he was
reporting he could not do much of anything he used to enjoy.

[17]       
There has been intervening injuries since the motor vehicle accident. He
injured or reinjured his knee in a work accident in the tar sands in September
2009. Subsequently, in 2011 he fell hard enough to bruise his buttocks and
break his left wrist, which required surgery. As I have already commented, Mr. Hough
claims the wrist breakage is causally related to the car accident, but there is
no medical evidence to support any causal connection, and this is the same
wrist injury he is claiming is related to his work-related injuries for which
he seeks compensation from WCB.

[18]       
In the circumstances, I conclude that a proper award for non-pecuniary
damages for pain, suffering, and loss of enjoyment of life is $15,000.

Past Wage Loss

[19]       
Mr. Hough has a sporadic employment history with short periods of
employment interspersed with long periods of unemployment. His tax returns are
revealing in terms of the amount and source of income. Often his income source
is WCB or EI. He has demonstrated a serious problem keeping any job for any
length of time. In addition to lack of qualifications and experience for some of
the jobs he got, he was often let go for conflicts and attitude problems. At
times work has been unavailable due to the economy. He has not looked for work;
he waits for work to find him. He has not had a valid driver’s licence for some
time. He was incapacitated from working, according to Dr. Waiz’s report to
WCB, at the time of this motor vehicle accident, yet at the same time he was in
receipt of EI, where he was reporting that he was ready and able to work.

[20]       
In all the circumstances it is clear it is not the motor vehicle
accident which has prevented him from returning to work following the accident.
In my view, there is no proof of past wage loss. There will be no award under
this head of damages.

Loss of Future Earning Capacity

[21]       
Dr. Waiz said Mr. Hough would have lasted three to five years
in the workforce but for the accident. Mr. Hough said he wanted to work 10
more years. His counsel says he is tough and suggested he should be given the
benefit of the doubt and should be compensated for six years loss of future
earning capacity, to the tune of $280,000. The test for an award for loss of
future capacity is set out by the Court of Appeal in Perren v. Lalari,
2010 BCCA 140. There must be a real and substantial possibility of such a
loss. Mere speculation of loss of earning capacity is insufficient. Mr. Hough
does not meet this test. As well, there are just too many negative
contingencies. To make any award under this head of damages would amount to
mere speculation.

Housekeeping

[22]       
There is no proper quantification of any housekeeping claim. Mr. Hough
claims he paid $400 per month in cash to his friend to do things for him around
the house. His friend says he received some cash from Mr. Hough whenever
he asked, or Mr. Hough gave it to him. There is no medical or other
evidence of any necessity for any household assistance. There is no evidence of
any connection between Mr. Hough’s inability to do anything as a result of,
or connected to the motor vehicle accident. Further, there is evidence Mr. Hough
seems to be well enough to assist his own mother. There will be no award of
damages under this head.

[23]       
So that is my decision. Any issue with respect to costs?

[SUBMISSIONS ON COSTS]

[24]       
The Rules seem to be the Rules and costs seem to follow the event, and
there is an incentive to settle these matters. It is unfortunate, but I will
make the order for double costs from the date of the offer.

“Stromberg-Stein J”