IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Quartey-Harrison v. Klusiewich, |
| 2011 BCSC 1054 |
Date: 20110803
Docket: M091852
Registry:
Vancouver
Between:
Harry
Quartey-Harrison
Plaintiff
And
Darren Klusiewich,
Susan Barber, GMAC Leasco Corporation/
La Compagnie GMAC
Location, John Doe, Jane Doe and
Insurance
Corporation of British Columbia
Defendants
Before:
The Honourable Madam Justice Baker
Reasons for Judgment
The Plaintiff: | Appeared on his own |
Counsel for the Defendants: | John W. Burgoyne |
Place and Date of Trial: | Vancouver, B.C. May 19, 2011 |
Place and Date of Judgment: | Vancouver, B.C. August 03, 2011 |
[1]
On April 18, 2007, Mr. Quartey-Harrison was driving his vehicle
southbound on 200th Street in Langley. He had entered the
intersection at 200th Street and 92nd Avenue on a green
light and was proceeding through the intersection when his vehicle was struck
on the right passenger side by a vehicle driven by the defendant Darren
Klusiewich.
[2]
At the start of trial, counsel for the defendants advised the court that
liability, which had been denied, was no longer in dispute and that negligence
on the part of the defendant Klusiewich was now admitted.
[3]
Mr. Quartey-Harrison testified that the force of the impact caused his
vehicle to spin nearly 360 degrees and come to rest in the oncoming lane of
travel. Mr. Quartey-Harrison felt the left side of his head came into
contact with some part of the frame of his vehicle as a result of the impact.
There was no loss of consciousness, however.
[4]
Mr. Quartey-Harrison testified that he was furious with the other driver
so he got out of his vehicle and immediately approached Mr. Klusiewich to
confront him. Mr. Quartey-Harrison called an ambulance. Police arrived before
the ambulance and spoke with Mr. Quartey-Harrison and bystanders who had
witnessed the accident.
[5]
Mr. Quartey-Harrison testified that half an hour after the police
arrived he began to feel dizzy and to have blurriness in his left eye. When an
ambulance arrived he was taken to hospital. After being examined there, he was
discharged and advised to see his own doctor.
[6]
Mr. Quartey-Harrison testified that in 1991 or 1992 he had had a
detached retina in his left eye. As part of the repair, I infer, a piece of
plastic that Mr. Quartey-Harrison testified, is called a sclerical buckle,
was put in his left eye socket below his left eye. Mr. Quartey-Harrison
testified that a doctor at the hospital where he was examined on April 18, 2007
asked him what was in his eye, and that he then realized that the buckle had
become visible.
[7]
The evidence about when Mr. Quartey-Harrison saw his family doctor is
confusing. Mr. Quartey-Harrison put into evidence a report from Dr. Mark
Fisher, who is his family doctor, dated January 21, 2009. In this report, Dr.
Fisher stated This man was seen for the first time on June 23, 2007 following
the motor vehicle accident. However, on a print-out of medical, physiotherapy
and medication expenses put into evidence by Mr. Quartey-Harrison, there are
references to Dr. visit in relation to Dr. Fisher on May 12, and 25, 2007.
There are also references to charges for medications prescribed by Dr. Fisher
purchased on May 12, 2007.
[8]
Mr. Quartey-Harrison testified that in April 2007 he had recently
returned to British Columbia from Saskatchewan and at the time of the accident
had not yet renewed his British Columbia Medical Services Plan coverage. He
called his doctor and was advised to renew his coverage. I infer that Mr.
Quartey-Harrison may have seen Dr. Fisher and paid a fee for service before his
medical services plan coverage was renewed.
[9]
According to a medical record in evidence, Mr. Quartey-Harrison is 52
years old. He testified that he is a mechanical designer. He has done
business as HQH Engineering, but said he is not an engineer. He has a degree
from the University of Donetsk in Ukraine. Mr. Quartey-Harrison said that he
has worked as a mechanical designer since 1985. He said that much of the time
the work does not involve leaving the office; but that there are jobs that
require the designer to go into the field and that field work can involve
taking measurements, climbing ladders and moving things.
[10]
For nine or 10 years prior to the accident and continuing since the
accident to the present, Mr. Quartey-Harrison has utilized the services of
Design Group Staffing Inc., a company specializing in the placement of design
professionals. Through this agency he has been hired on a contract basis to
work for a variety of companies in various locations across Canada.
[11]
At the time of the accident, Mr. Quartey-Harrison was working on a
contract arranged for him by Design Group with a company called Knelson,
earning $45 an hour. The contract started on March 21, 2007 and ended May 21,
2007 … with a possible extension at that time. The contract provided that
Mr. Quartey-Harrison could terminate the contract at any time after May 21,
2007 by giving seven days written notice.
[12]
April 18, 2007, the day of the accident, was a Wednesday. Mr.
Quartey-Harrison returned to work the next day and did not miss any days of
work at Knelson as a result of the accident. He testified that because he was
only one month into the contract he did not want stop working. He said,
however, that he had pain or discomfort in the muscles around his spine from
his neck to his lower back; and that the tops of his shoulders were also sore.
He said he had some blurriness in his eye and that the eye watered more than
usual, even if he wore sunglasses. He testified that because of the problem
with his eye watering, he took more breaks than usual and sometimes stayed late
to finish up his work.
[13]
Sometime prior to May 21, 2007, Knelson asked Mr. Quartey-Harrison to
extend his contract for a further month and although he had no contractual
obligation to do so, he agreed to the extension.
[14]
Mr. Quartey-Harrison testified that he was referred to a physiotherapist
in Vancouver by his doctor. Dr. Fishers report states that when seen on June
23, 2007, Mr. Quartey-Harrison had already been seeing a physiotherapist three
times a week for the past four weeks. Dr. Fishers diagnosis was a mild neck
and back strain. There is no mention in Dr. Fishers reports of problems with
Mr. Quartey-Harrisons eye-sight; no mention of the protruding sclerical
buckle, of excessive tearing, or of blurred vision.
[15]
Dr. Fisher recorded in his report dated January 21, 2009 that on June
23, 2007 Mr. Quartey-Harrison had recently finished a contract and was looking
for new work. He assessed Mr. Quartey-Harrison as being fit to work.
[16]
Following an examination on August 14, 2007, Dr. Fisher repeated that he
considered Mr. Quartey-Harrison fit to work and recorded that the
plaintiff was looking for work.
[17]
Mr. Quartey-Harrison testified the physiotherapist he was seeing was in
Vancouver but his workplace was in Langley so he had to take several hours off
work to attend physiotherapy. He made up the time by working longer hours.
[18]
Mr. Quartey-Harrison could not recall exactly when the contract at
Knelson came to an end − late June or early July, he believed − but
Design Groups records indicate his last day of work at Knelson was June 21,
2007. Design Group asks its clients to complete client satisfaction surveys at
the end of contracts and Knelson rated Mr. Quartey-Harrisons performance of
his contractual duties as above average to excellent.
[19]
Mr. Quartey-Harrison initially testified that a couple of weeks before
the Knelson contract was expected to end, he telephoned Michelle Johnson, his
regular contact at Design Group; told her about the health problems he was
having as a result of the April 18, 2007 motor vehicle accident and told her
that he wanted to take time off work to heal and look after his injuries. I
understood from his later testimony that he indicated to her that he was
prepared to work but only if the job did not require him to leave the office to
do field work.
[20]
Michelle Johnson was subpoenaed to testify by the defendant. She also
produced Design Groups complete file in relation to the plaintiff. She
testified that Design Group retains e-mail communications with contractors, but
also that she makes notes in the file of telephone contacts from clients.
[21]
Ms. Johnson testified that Mr. Quartey-Harrison did not tell her he had
been involved in a motor vehicle accident in 2007 and did not tell her he
wanted or intended to take time off to recover from his injuries or that there
were any limitations on the kinds of work he would accept. She identified a
series of e-mails exchanged between her and Mr. Quartey-Harrison and between
other Design Group placement personnel and Mr. Quartey-Harrison that are
inconsistent with the testimony of Mr. Quartey-Harrison that he told Ms.
Johnson that he was not available to work, or would only consider certain kinds
of work in the weeks and months after his contract at Knelson came to an end.
[22]
On June 7, 2000, Ms. Johnson e-mailed Mr. Quartey-Harrison thanking him
for letting her know that his work at Knelson would be finished soon. She gave
him information about a potential job in Delta where experience in metal
fabrication was stated to be a desirable qualification. She asked the
plaintiff if he would like to be considered for the position and if he knew when
the Knelson contract would end.
[23]
Mr. Quartey-Harrison replied by e-mail on June 18 indicating his
contract with Knelson was ending that week. He inquired whether the job
opening she had sent him was still open so that a possible interview could be
set up later that week or in the next week. Communications exchanged by e-mail
over the next two weeks make no reference to any limitations imposed by Mr.
Quartey-Harrison in relation to the type of work he was prepared to consider.
Another Design Group employee noted on June 19, 2007 that Mr. Quartey-Harrison
was looking for work in oil and gas as a designer/drafter/checker, preferably
in Ft. McMurray, Edmonton, Calgary or Vancouver and that he was available after
Friday June 22.
[24]
On June 19, Mr. Quartey-Harrison sent an e-mail to a Design Group
placement officer in Toronto expressing interest in a position in Sudbury,
Ontario requiring mechanical designers for … Mining and Metal Processing,
Heavy Industrial and Bulk Material Handling Systems.
[25]
On June 21 Mr. Quartey-Harrison notified Ms. Johnson that his job at
Knelson was ending that day. She replied, asking if he was interested in the
permanent position in Delta she had told him about the previous week. He
replied that hed check it out but did not think that he wanted to take a
permanent position. That same day Ms. Johnson e-mailed the Toronto placement
officer advising At this point please feel free to move forward with (Mr.
Quartey-Harrison) on any positions suitable.
[26]
Subsequent e-mails in July and August indicate that Mr. Quartey-Harrison
continued to express interest in various jobs identified by Design Group in
July, August and September and November 2007. Ms. Johnson testified that
although Design Group considered Mr. Quartey-Harrison to be a match for
several positions, the ultimate decision is that of the employer and he was not
hired. In January 2008, a note in the file indicated that Mr. Quartey-Harrison
had not worked for a few months and was happy to relocate to either Edmonton or
Saskatchewan.
[27]
On August 14, 2007, Mr. Quartey-Harrison saw ophthalmic surgeon Dr. Finlay,
on a referral from a Dr. Saunders who practices in the same premises as Dr.
Finlay. Dr. Finlay wrote a report to Dr. Saunders on that date. Dr. Finlay
noted that he had done a retinal detachment repair for Mr. Quartey-Harrison
many years ago. He removed what he referred to as … an extreme buckle
temporally in the left eye under local anaesthesia. He recorded that Mr.
Quartey-Harrison had been aware of increasing pain and a large lump in his left
eye from the extruding buckle. Dr. Finlay made no mention of an April 2007
motor vehicle accident.
[28]
In a subsequent letter to Dr. Fisher dated September 14, 2009, Dr.
Finlay noted that the buckle had extruded itself over the last couple of
years. I am satisfied that Dr. Finlay was indicating by this statement that
the buckle had been extruding for a couple of years prior to its removal. That
statement indicates that the extrusion was a gradual development and therefore
probably unrelated to the motor vehicle accident.
[29]
Following a telephone interview on January 31, 2008, Mr.
Quartey-Harrison accepted a position with a Saskatchewan company to start
February 11, 2008.
ANALYSIS AND DECISION
Past Loss of Income
[30]
Mr. Quartey-Harrison is seeking an award for past loss of income or the
opportunity to earn income between June 2007 and February 2008. He has failed
to establish, however, that he was incapacitated from work or that he turned
down any employment available to him during that period because of the accident
injuries. Mr. Quartey-Harrison returned to his job at Knelson the day
after the accident and continued to work steadily until the end of the
extension of the Knelson contract. Although he testified that he took extra
breaks and also worked late on occasion to make up for time spent at
physiotherapy appointments, he did not lose any income as a result and his
reputation with the employer was unaffected as Knelson rated him highly at the
end of his contract.
[31]
The e-mails exchanged between Mr. Quartey-Harrison and the employees of
Design Group do not support his testimony that he decided not to work for a
period of time because of his accident injuries, or that he placed any
restrictions on the type of work he was prepared to do. I am not persuaded
that Mr. Quartey-Harrison declined any work available to him, or was rejected
by any prospective employer by reason of the accident injuries.
[32]
It is true that Mr. Quartey-Harrison earned only half the income in 2007
that he had earned in 2006. His income tax returns indicate, however, that his
income does fluctuate. In 2008, he earned nearly $40,000 more than he had
earned in 2006; in 2009, his income dropped by $23,000 in comparison to his
2008 income. Mr. Quartey-Harrison has failed to prove that the decline in his
income in 2007 resulted from the accident injuries. It is more probable that
Mr. Quartey-Harrison experienced a period of several months during which his
skills did not match the requirements of employers with positions available.
As stated earlier, Mr. Quartey-Harrison did not identify even one job he
declined because of his injuries, or any job that he was not offered or that he
lost the opportunity to do because of his injuries. Mr. Quartey-Harrison has
not proved a loss of income, or loss of the opportunity to earn income caused
by the accident. He has not claimed that his capacity to earn income in future
will be adversely affected by the injuries.
Special Damages
[33]
According to a summary print-out of physiotherapy and massage
treatments, Mr. Quartey-Harrison had treatments between May 17, 2007 and July
13, 2007. There was then a hiatus, according to the print-out, until July
2008, when physiotherapy treatments resumed.
[34]
I note, however, that Dr. Fisher reported in his letter dated January
21, 2009 that when seen in September 2007, Mr. Quartey-Harrison was continuing
physiotherapy three times a week. He reported that when seen on October 11,
2007 Mr. Quartey-Harrison reported that he was finished physiotherapy. He
reported that when he saw Mr. Quartey-Harrison on January 30, 2008 he reported
that he was continuing on physiotherapy. He also reported that when seen on
December 23, 2008, Mr. Quartey-Harrison was having physiotherapy three times a
week.
[35]
I am unable to correlate these reports with the print-out submitted by
Mr. Quartey-Harrison, except by concluding that the print-out only
includes visits for which Mr. Quartey-Harrison incurred expenditures for which
he was not reimbursed. Counsel for the defendants did not take serious issue
with Mr. Quartey-Harrisons claim for special damages for the physiotherapy
treatments in 2007 and 2008, and I award the sum of $680 for the cost of
physiotherapy and/or massage treatments to the end of 2008.
[36]
According to the print-out, Mr. Quartey-Harrison paid $689.05 in 2007
and 2008 for the three visits to Dr. Fisher in May and June 2007, and
medications that he identified as being used to treat pain and discomfort. He
agreed, however, that he had been paid $922.43 in July 2010 by the defendants
insurer. He was unsure what expenses were intended to be reimbursed by that
payment; he said he had given his receipts to his former lawyer and his lawyer
had given them to the defendants insurer. He said he believed the payment was
to reimburse him for medication expenses. The defendants called an adjuster
who testified the payment was reimbursement for medications. Accordingly, I
award no special damages for medications as these have already been reimbursed.
[37]
According to the print-out, Mr. Quartey-Harrison paid $230.56 for the
ambulance that drove him from the accident scene to Langley Memorial Hospital
and he is also entitled to damages in that amount.
[38]
Mr. Quartey-Harrison produced no record of kilometres driven to
treatments and I am therefore unable to award damages in this respect. I have
already said that I am not persuaded that the accident caused the sclerical
buckle to protrude and therefore am not awarding the claimed trip to Vancouver
to see Dr. Finlay.
[39]
I am not satisfied that Mr. Quartey-Harrison required physiotherapy,
massage or medications after the end of 2008 as a result of the accident
injuries.
[40]
The total award for special damages is $910.56.
Non-Pecuniary Damages
[41]
Counsel for the defendants provided the court with a number of
authorities in relation to quantum of damages for pain and loss of enjoyment of
life, which are:
Dogra v. Thakore, 2001 CarswellBC 1255, 2001 BCSC 834;
Eiermann v. Watts, 2004 CarswellBC 156, 2004 BCSC 98;
Griffin v. Hawkins, 2006 CarswellBC 111, 2006 BCPC 20;
Hoan v. Smith Industries Ltd., 2009 CarswellBC 514,
2009 BCSC 275;
Kain v. Kirkman, 2006 CarswellBC 2931, 2006 BCSC 177;
and
Medeiros v. Vuong, 2000 CarswellBC 1942, 2000 BCSC
1404.
[42]
Although I have concluded that Mr. Quartey-Harrisons injuries did not
incapacitate him from work, I accept that he did experience pain that
eventually lessened to discomfort, as a result of the injuries to his neck and
back. Mr. Quartey-Harrison testified that he had to take more frequent breaks,
and also missed work for physiotherapy treatments and had to make up the lost
time by working longer hours.
[43]
He continued to seek physiotherapy and/or massage treatments and to take
medication to relieve pain and muscle spasms and, as noted, earlier, I am
satisfied that these expenditures related to his accident injuries until the
end of 2008, after which, I conclude, he had essentially recovered from the
injuries. Mr. Quartey-Harrison testified that the discomfort from his injuries
interfered with his ability to sleep if he did not take medication.
[44]
Mr. Quartey-Harrison testified that in addition to the discomfort he
experienced at work, he also had discomfort in his back when doing some
household chores such as vacuuming carpets that required him to bend sideways
and forward.
[45]
The discomfort from his injuries, especially occasional muscle spasms,
also resulted in Mr. Quartey-Harrison giving up jogging and recreational soccer
for a time, although he had resumed playing soccer pick-up games with friends
by time of trial.
[46]
I conclude that Mr. Quartey-Harrison is entitled to an award of $18,000
to compensate him for the discomfort and loss of enjoyment of life caused by
the accident injuries.
COSTS
[47]
Unless there are factors of which I am unaware, such as offers of
settlement, Mr. Quartey-Harrison is entitled to his costs of the action, to be
assessed on Scale B. If there are factors relevant to costs that should be
considered by the court, the plaintiff and counsel for the defendants are given
leave to file written submissions after which I shall issue a further Decision
on costs. If no written submissions have been received by September 15, 2011,
the award of costs to Mr. Quartey-Harrison on Scale B shall be in effect.
W.G. Baker J.