IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110727

Docket: M105021

Registry:
Vancouver

Between:

Vladimir
Olianka

Plaintiff

And

Mary
E. Spagnol

Defendant

Before:
The Honourable Mr. Justice Blair

Reasons for Judgment

[1]            
The plaintiff, Vladimir Olianka, seeks damages resulting from injuries
he suffered on October 20, 2008 when the vehicle he was driving was struck from
behind by a vehicle driven by the defendant, Mary Spagnol. Mr. Olianka had
stopped his vehicle at the intersection of King Edward Avenue and Valley Drive
in Vancouver where the October 20, 2008 collision (the “collision”) occurred,
the impact pushing Mr. Olianka’s vehicle into the vehicle stopped in front of
him. Mr. Olianka was accompanied by his young son Yuma who occupied the front
passenger seat when the collision occurred. The defendant admits liability for
the collision and the purpose of this summary trial, which I find appropriate
in the circumstances, is to determine the quantum of Mr. Olianka’s damages.

[2]            
After the collision, Mr. Olianka declined medical assistance preferring
to follow the ambulance taking his son to Children’s Hospital. Mr. Olianka
later experienced pain and stiffness in his neck and back and on October 21,
2008, the day following the collision, he saw Dr. Viktor Neumann, his family
physician for 17 years, who described his findings and treatment of Mr. Olianka
after the collision in his January 14, 2011 report.

[3]            
Mr. Olianka, aged 53 years, resides in Vancouver with his wife Naomi
Tokunaga and their two children. Mr. Olianka for nine years has been responsible
for the cleaning, maintenance and renovations of a 30-unit apartment building
owned by his employer, NVY Investments Ltd. (“NVY”). He deposed that his work
required significant physical effort. His wife, Ms. Tokunaga, is NVY’s
president and is responsible for the administration and paperwork involved in NVY’s
apartment business, although Mr. Olianka assumes some of her responsibilities
when his wife is unable to fulfill her administrative duties as occurred in 2007.

[4]            
Mr. Olianka deposed that as a result of the injuries suffered in the
collision, particularly those sustained by his neck and back, he was unable to
return to his regular work until February 25, 2009, some four months after the
collision. He stated that he still experiences discomfort from the injuries
suffered in the collision which continues to impede his work-related and other
activities.

[5]            
Dr. Neumann wrote that on October 21, 2008, Mr. Olianka described
suffering neck pain and stiffness as well as lower back pain. On examination,
Dr. Neumann found Mr. Olianka to have moderate muscle spasm on both sides of
his neck and a range of motion of his neck limited by pain. He further found a
moderate muscle spasm between Mr. Olianka’s shoulder blades and mild muscle
spasm in his lower back area, but with a good range of motion. He diagnosed Mr.
Olianka as suffering from moderate soft tissue injuries to his neck and mid-back,
and a mild soft tissue injury to his lower back.

[6]            
Mr. Olianka saw Dr. Neumann again on October 28, and twice in November
2008 complaining of constant neck and lower back pain and expressing
frustration as the pain prevented him from returning to work. Dr. Neumann, on
those visits, found mild paracervical muscle spasm in Mr. Olianka’s neck with pain
in lateral bending and rotation, together with mild muscle spasm between his
shoulder blades and moderate muscle spasm in his lower back with pain in
flexion, rotation and lateral bending. Dr. Neumann recommended physiotherapy
treatment which Mr. Olianka commenced November 3, 2008 and continued until May
2009. Both the physician and Mr. Olianka’s physiotherapist advised regular
exercise, advice which Mr. Olianka adopted through a program of stretching,
walking, and the use of an exercise machine. He also took acupuncture treatment
which also provided some relief.

[7]            
Mr. Olianka’s attempt to return to work in December 2008 ended when it
caused increased pain in his neck. Dr. Neumann saw Mr. Olianka in January and
February 2009, the physician finding Mr. Olianka suffering mild to moderate
muscle spasm and limited range of motion in lateral bending and rotation of the
neck as well as moderate muscle spasm in the lower back, together with a range
of motion limited in flexion and rotation. When next seen by Dr. Neumann on
April 14 and May 28, 2009, Mr. Olianka had returned to work but continued to
complain of intermittent but frequent neck and upper back pain and was unhappy
with the outcome of the physiotherapy treatment.

[8]            
Dr. Neumann again found mild paracervical muscle spasm with pain in
maximal lateral bending and rotation and moderate muscle spasm on both sides of
Mr. Olianka’s neck with a limited range of movement. He arranged an MRI scan of
Mr. Olianka’s cervical spine which, when performed on September 10, 2009,
showed mild multilevel degenerative changes in the cervical spine without
significant spinal stenosis or focal disc abnormality.

[9]            
Mr. Olianka also complained to Dr. Neumann of numbness in two fingers of
his left hand which resulted in a referral to neurologist Dr. Kristine Chapman.
She saw Mr. Olianka on October 11, 2009, and after performing nerve conduction
studies noted that there was evidence of ulnar nerve neuropathy, but concluded
that it was unlikely that this complaint was related to the collision given
that the problem developed just five or six weeks before the October 11, 2009
appointment, nearly a year after the collision. Dr. Chapman acknowledged that
Mr. Olianka’s musculoskeletal injury with chronic neck pain was likely related
to the collision.

[10]        
In May 2010, Mr. Olianka again saw Dr. Neumann, complaining of more pain
to his neck and lower back, with the physician finding mild paracervical muscle
spasm on both sides of the neck and pain with maximal flexion and lateral
bending, as well as moderate muscle spasm in his lower back area with no
neurological deficit. The physician prescribed non-steroidal anti-inflammatory
medication for a two week period. On August 20, 2010, Mr. Olianka described
suffering intermittent neck and upper back pain and Dr. Neumann found  moderate
muscle spasm with a good range of motion, together with mild pain in lateral
bending and rotation of the neck and mild muscle spasm between his shoulder
blades.

[11]        
Dr. Neumann wrote that Mr. Olianka last saw him on December 23, 2010
with respect to injuries suffered in the collision, and again he advised of
intermittent neck and mid-back pain. Examination revealed moderate muscle spasm
with a good range of motion in the neck, mild pain in lateral bending and
rotation and a mild muscle spasm between his shoulder blades.

[12]        
Dr. Neumann noted in his summary that prior to the collision Mr. Olianka
was in good physical condition and the symptoms described in his report were
related to the collision. Dr. Neumann concluded that Mr. Olianka complied with
the treatment regime which included physiotherapy, acupuncture and
non-steroidal anti-inflammatory medication. He found that Mr. Olianka’s
injuries rendered him totally disabled for four months and that he continued to
experience intermittent pain in his neck and upper back, the pain being related
to the activity level in which he was engaged.

[13]        
Dr. Neumann opined that Mr. Olianka made quite a significant recovery
from his injuries and he expected that his present residual intermittent upper
back and neck complaints would last some time, but should gradually subside in
intensity and frequency. He did not expect any permanent consequences from the
injuries related to the collision.

[14]        
Mr. Olianka deposed that after the collision he suffered more headaches
than he had before the collision and that he also had some dizzy spells
following the collision. Dr. Neumann did not mention these concerns in his
January 2011 report, and I infer from that omission that the physician
considered them to be of a minor and passing nature, if he was aware of them at
all.

[15]        
Mr. Olianka deposed that while the injuries suffered in the collision
did not stop him from working after February 25, 2009, he found that aspects of
his work aggravated his continuing neck pain, thereby preventing him from
working as quickly as he did prior to the collision. His continuing back and
neck pain delayed him from performing some maintenance and renovation work for
NVY.

[16]        
Mr. Olianka also deposed that the collision-related injuries limited his
participation in the leisure activities he previously enjoyed, including
lengthy, daily walks with his dog, salmon fishing, hunting, and riding all
terrain vehicles. He anticipates resuming these activities after recovering
from his injuries.

[17]        
In considering Mr. Olianka’s injuries, I note that on July 25, 2010, he
fell from an eight foot ladder which led him on July 26, 2010 to see Dr.
Neumann who diagnosed him as suffering a mid-back contusion. Dr. Neumann does
not mention this injury in his report and the defence asserts that he should
have stated whether the fall may have contributed to Mr. Olianka’s
collision-related and ongoing mid-back injury. The defence submits that as a
result of the omission, limited weight should be accorded to the causation
evidence contained in Dr. Neumann’s report.

[18]        
Dr. Neumann in his report addresses the injuries which Mr. Olianka
advised he suffered in the collision. After the ladder fall incident, he notes
that Mr. Olianka visited him on August 20, 2010 for his collision-related
injuries and that his last visit for collision-related injuries was on December
23, 2010. Throughout his report, Dr. Neumann refers to Mr. Olianka suffering a
moderate soft tissue injury of the mid-back evidenced by muscle spasm. In the
ladder fall, Dr. Neumann in his clinical notes describes Mr. Olianka suffering
a mid-back contusion, but does not link the contusion with the previously
diagnosed collision-related moderate soft tissue injury to his mid-back.

[19]        
Dr. Neumann in his report directed his attention to the diagnosis and
treatment of the injuries suffered by Mr. Olianka in the collision. In his
report he does not mention his patient’s fall on July 25, 2010, and I conclude
that he did not do so because the fall resulted in a mid-back contusion which
given his findings on August 20, 2010 had no effect or no noticeable effect on
the collision-related soft tissue injury to the mid-back. His clinical records
which were provided to the defence advised of Mr. Olianka’s fall and his
diagnosis.

[20]        
During the August 20, 2010 appointment, Dr. Neumann found Mr. Olianka
continuing to suffer intermittent upper back pain and mild muscle spasm between
his shoulder blades. Those findings appear to reflect the progress Mr. Olianka
was making with his collision-related injuries, and leading in January 2011 to
Dr. Neumann’s positive conclusions about his recovery. Given the care that Dr.
Neumann took in addressing Mr. Olianka’s collision-related injuries throughout
his report I am not prepared to accept the defence submission that Dr.
Neumann’s omission in his report to refer to the mid-back contusion suffered in
the fall should result in limited weight being given to the causation evidence
contained in the doctor’s report with respect to Mr. Olianka’s
collision-related injuries.

Non-pecuniary Damages

[21]        
Mr. Olianka suffered what Dr. Neumann describes as a moderate soft
tissue injury to the neck, a moderate soft tissue injury to the mid-back and a
mild soft tissue injury to his lower back. I accept Mr. Olianka’s evidence with
respect to his collision-related injuries and that these injuries precluded him
from working for a four-month period. I also accept that Mr. Olianka continues
to experience intermittent pain in his neck and upper back which is expected to
last for some unknown period. Dr. Neumann opined that by January 14, 2011, Mr.
Olianka had made a significant recovery from his injuries and concluded that
his residual pain should gradually subside in intensity and frequency. He did
not expect Mr. Olianka to suffer any permanent consequences from his collision-related
injuries.

[22]        
Nevertheless, the optimism expressed by Dr. Neumann and reflected in Mr.
Olianka’s increased activity level does not overshadow Mr. Olianka’s
difficulties for the 27-month period between the collision and Dr. Neumann’s
report dated January 14, 2011. In that period, Mr. Olianka, due to his injuries,
was unable to work for four months and subsequently those injuries compromised
his ability to fully perform his work as he had done prior to the collision. In
addition, he was unable to enjoy the leisure activities in which he had
participated prior to the collision. This 27-month recovery period must be
considered when ascertaining the non-pecuniary damages award to which Mr. Olianka
is entitled. I accept that he continues, to some lesser degree, to suffer
intermittent pain from his collision-related injuries as described by both Mr.
Olianka and Dr. Neumann.

[23]        
Mr. Olianka submits that his non-pecuniary damages should be in the range
of $40,000 to $50,000. In contrast, the defence submits that Mr. Olianka’s
non-pecuniary damages ought to be in the range of $17,500 to $25,000. Counsel support
their differing ranges with various authorities, which are of some limited
assistance in determining the appropriate sum for Mr. Olianka’s non-pecuniary
damages.

[24]        
Mr. Olianka refers to the cases of Crichton v. McNaughton, 2008
BCSC 556, Jackman v. All Season Labour Supplies Ltd., 2006 BCSC 2053,
and Lane v. Ford Credit Canada Leasing Ltd., 2003 BCSC 701, the
plaintiffs in those three cases each receiving $40,000 in non-pecuniary
damages; Gilmour v. Machibroda, 2008 BCSC 260, in which the plaintiff
received non-pecuniary damages of $45,000, and Kahle v. Ritter, 2002
BCSC 199, in which the plaintiff received non-pecuniary damages of $50,000.

[25]        
The defence relies on Stapley v. Hejslet, 2006 BCCA 34 as
authority for the factors to consider when determining non-pecuniary damages,
the list being found at para. 46 of Kirkpatrick J.A.’s reasons. The authorities
cited in support of non-pecuniary damages in the $17,500 to $25,000 range
include McAvena v. Kabatoff, 2003 BCSC 629 in which the plaintiff
received non-pecuniary damages of $15,000; Davies v. Larabie, 2005 BCSC
1167, in which the plaintiff received non-pecuniary damages of $18,000; Williamson
v. Nakashimada, 2004 BCSC 1348, in which non-pecuniary damages of $20,000
were awarded; Manson v. Kalar, 2011 BCSC 373, in which the plaintiff
received $25,000 for non-pecuniary damages; and Corrado v. Mah, 2006 BCSC
1191, in which the plaintiff received non-pecuniary damages of $50,000, less 25
percent due to the risk of progression of the pre-existing osteoarthritis of
his spine.

[26]        
The defence further submits that the $17,500 to $25,000 range should be
reduced by at least 15 percent given what it contends is the likelihood that
Mr. Olianka’s fall on July 25, 2010 contributed to his ongoing back pain,
thereby reducing the range for non-pecuniary damages to between $14,875 and
$21,250. I am not prepared to accede to the latter submission given that there
is no evidentiary link between the mid-back contusion suffered in the fall and
the pre-existing soft tissue injury to Mr. Olianka’s back evidenced by the
muscle spasms discussed by Dr. Neumann in his report

[27]        
I have reviewed the authorities provided by both counsel and conclude
that several of Mr. Olianka’s authorities include situations in which the
plaintiffs’ injuries and effects on their lives were somewhat more significant
than those found in Mr. Olianka’s situation. Similarly, the defence authorities
include situations in which the plaintiffs’ injuries and the effect on their
lives were less than that encountered by Mr. Olianka.

[28]        
Based on the authorities and the unique evidence found in this case, I
find that the appropriate award for Mr. Olianka’s non-pecuniary damages is $30,000,
taking into account all contingencies, given the extent of the soft tissue
injuries to his neck and back, the disability period of 27 months post-collision,
as well as the lingering and ongoing aspect of his injuries, the limitations
that the injuries imposed, not just on his ability to work, but also on his
ability to partake in those physical activities which occupied his life prior
to the collision and which he has only recently been able to resume albeit to a
limited extent.

Income Loss

[29]        
Mr. Olianka claims for what he asserts are his loss of earning capacity
which includes his loss of income as well as his loss of future earning
capacity as discussed by Smith J.A. in Rowe v. Bobell Express Ltd., 2005
BCCA 141 at para. 30 in which he stated:

… a claim for what is often
described as “past loss of income” is actually a claim for loss of earning
capacity; that is, a claim for the loss of the value of the work that the injured
plaintiff would have performed but was unable to perform because of the injury.

The difficulty in this case lies in assessing what Mr.
Olianka would have earned absent the injury, the assessment being complicated
somewhat by the manner in which he was paid by his employer, NVY, in the period
after the collision.

[30]        
Mr. Olianka’s employment involves him performing maintenance work for
NVY, a company in which Mr. Olianka is neither an officer nor a director and in
which he has no shares or financial interest. However, his wife, Ms. Tokunaga,
is a shareholder and the president of NVY which owns the 30-unit apartment
block in which Mr. Olianka has worked for nine years. Ms. Tokunaga deposed that
in addition to his building maintenance work, Mr. Olianka also assumes some of
her administrative responsibilities and paperwork when she is unable to do so,
such as in 2007 when she spent more time at home looking after their then
one-year-old daughter. She stated that these additional responsibilities
resulted in his receiving higher earnings in 2007. The pay cheques issued to
Mr. Olianka, when rounded out, totalled $32,300 in 2007, $21,800 in 2008, and
$31,600 in 2009. There does not appear in the material filed any record of Mr.
Olianka’s pay cheques during 2010.

[31]        
Ms. Tokunaga deposed that she determines the wages paid to Mr. Olianka,
the amounts being dependent on the type of work and projects that he completed.
He is paid more when he takes on more responsibilities and when he completes
jobs and projects of a larger scale. She further wrote that Mr. Olianka’s
workload was reduced in 2008 as there was less maintenance and renovation work
completed that year.

[32]        
Ms. Tokunaga also deposed that Mr. Olianka was unable to work for four
months after the collision, returning to work at the end of February 2009,
although he tried unsuccessfully to return to work for two weeks in December
2008. She wrote that during that four-month period some of the maintenance
required in the building was performed by other contractors and it was likely
the costs of these contractors would have been lower if Mr. Olianka had been
able to perform the work although she was not certain of the amounts.

[33]        
In Jackman, referred to above, the plaintiff claimed an income
loss for a five-month period during which she was unable to work following the
collision giving rise to her claim. The plaintiff worked in her husband’s
business and was paid a salary which varied according to the health of the
business. The problem for the trial judge,  N.H. Smith, J. lay in assessing
from somewhat confusing evidence what the plaintiff would have earned, absent
her injuries, during that five-month period. In the end, at para. 21, Smith J.
wrote: “Doing the best I can with the evidence I have, I assess net income loss
at $5,000.”

[34]        
I encountered similar difficulties in assessing Mr. Olianka’s past and
future lost earning capacity. Plaintiff’s counsel, in advancing claims for past
and future loss of earning capacity, did not provide an evidentiary basis upon
which Mr. Olianka’s past and future earning capacity might be assessed with
clarity.

[35]        
 In 2008, NVY paid Mr. Olianka salary of roughly $1,000 as stated on the
cheques for each of the months of April, May, June, August and September 2008.
There was no salary paid for July 2008. For some reason each of those five
cheques was dated October 1, 2008 and cashed on or about November 21, 2008. The
$1,000 pay cheque for October 2008 was dated November 30, 2011 and cashed
January 16, 2009. Mr. Olianka received pay cheques from NVY of $2,000 a month
for each of November and December 2008, when he was unable to work.

[36]        
In January and February 2009, while Mr. Olianka was still unable to
work, he received pay cheques from NVY of $2,200 for January and $2,500 for his
February salary. During the ensuing months March to November 2009, he received
wages of approximately $2,400 a month.

[37]        
The defence submits that in the absence of evidence as to the loss of
past earning capacity, Mr. Olianka is not entitled to an award for such a loss.
Although the evidence is slight, I am satisfied both on Mr. Olianka’s evidence
and that of Dr. Neumann that Mr. Olianka was unable to work during the four
months following the collision. I am also prepared to accept that during those
four months he did receive some income from NVY and that this income would have
been greater but for the injuries he suffered in the collision. I am prepared
to assess that loss at $500 for the months of November and December 2008 and
January and February 2009, for a total of $2,000.

[38]        
Mr. Olianka returned to full-time employment in March 2009, although he
deposed that he was unable to work with the same speed and efficiency as he had
prior to the collision. His income of approximately $2,400 monthly appears to
reflect a steadiness in his work capacity given Ms. Tokunaga’s evidence that
she determined his monthly pay dependent on the amount of work he did. His 2009
wages were roughly similar to his 2007 monthly earnings. On that evidence I am
unable to conclude that he suffered a loss of capacity to earn during the
period after he returned to work in February 2009. There is no evidence as to
his wages in 2010 from which I might draw further conclusions either as to his
present earning capacity or his future earning capacity.

[39]        
With respect to his future earning capacity, there is the evidence of
Dr. Neumann that as of January 14, 2011 Mr. Olianka had made a significant
recovery from the injuries suffered in the collision and that he did not expect
any permanent consequences from those injuries. In reviewing the factors
applicable when considering a claim for loss of future earning capacity as
found in Brown v. Golaiy, [1985] B.C.J. No. 31 at para. 8., I am not
satisfied that Mr Olianka has established that he has been rendered less capable
of earning income in the future, that he is less attractive as an employee, that
he has lost the capacity to take advantage of all job opportunities which might,
absent the collision, been open to him, and whether Mr. Olianka is less
valuable to himself.

[40]        
I dismiss Mr. Olianka’s claim for loss of future earning capacity.

Special Damages

[41]        
The defence accepts that Mr. Olianka is entitled to special damages of
$1,000 for the cost of his physiotherapy treatments.

[42]        
Mr. Olianka also advances a claim for special damages of $200 for the
cost of attending his medical appointments including those with Dr. Neumann,
his physiotherapists and, I understand, for his acupuncture treatments. The
defence submits that there is no evidence supporting the claim.

[43]        
However, there is evidence that Mr. Olianka resides in the 2900 block of
West 11^th Avenue, his physician’s office is located at 809 West 41^st
Avenue, Treloar Physiotherapist is located at 5511 West Boulevard where he
attended on 11 occasions, Oakmont Physiotherapist Clinic is located at 809 West
41^st Avenue and he attended there on 29 occasions. I am prepared to
infer from that information that Mr. Olianka bore the cost of travelling
between those different locations and his home and that $200 is a reasonable
cost for those medical-related trips. I fix that latter sum as a special
damage. Mr. Olianka’s special damages total $1,200.

Future Care

[44]        
During submissions, defence counsel referred to a claim by Mr. Olianka
for cost of future care, but that was not advanced by Mr. Olianka during the
trial nor did his counsel make submissions with respect to that head of
damages. In the absence of evidence and submissions I dismiss such a claim.

Summary

Costs

[45]        
Counsel requested leave to address costs after judgment. Within 30 days
they will arrange with the trial scheduler in Kamloops a mutually convenient
time to make submissions on costs.

“R.M. Blair J.”

BLAIR J.