IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Tsang v. Borg, |
| 2012 BCSC 1249 |
Date: 20120821
Docket: M106208
Registry:
Vancouver
Between:
Chor Shan Tsang
a.k.a. Iris Tsang
Plaintiff
And
Lynda Louise Ter
Borg and
John Andrew Ter
Borg
Defendants
Before:
The Honourable Mr. Justice McKinnon
Reasons for Judgment
Counsel for the Plaintiff: | L.K.L. Li |
Counsel for the Defendants: | M.G. Cependa |
Place and Dates of Trial: | Vancouver, B.C. April 23 – 26, 2012 |
Place and Date of Judgment: | Vancouver, B.C. August 21, 2012 |
[1]
The plaintiff claims damages for injury and loss sustained in a motor
vehicle collision that occurred on December 22, 2008, on East Broadway Street
near Renfrew in the city of Vancouver. The plaintiffs vehicle was struck from
behind. Liability is admitted. The trial proceeded on the issue of damages only.
[2]
The collision was a relatively minor one. Damage to the plaintiffs
vehicle was limited to replacing the rear bumper cover and impact absorber at a
cost of approximately $800.
[3]
The defendant driver, John Ter Borg testified that he was travelling at
maybe 30 KPH when he saw the plaintiff stop in front of him. He applied his
brakes but given the snow on the road, could not avoid the collision. He
estimated his speed at impact as a walking speed. He said that he was not
pushed forward then back. His vehicle sustained very minor cosmetic damage and
he was not injured.
[4]
The plaintiff described the collision as a boom that caused her body
to move forward and back, after which she felt uncomfortable, experiencing
pain in her head and neck area, in both shoulders, and in her back. She carried
on to her place of employment where she continued to experience these various
pains.
[5]
She explained that she did not visit a walk-in clinic or immediately
seek medical intervention because she felt the language barrier would preclude
effective relief (the plaintiffs first language is Cantonese). In any event
she said she had scheduled a visit to her general practitioner, Dr. Kwan,
for December 29 and in the interim she took over the counter medication for
pain relief.
[6]
Notwithstanding the relatively minor nature of this collision, the
plaintiff claims extensive damages. She is seeking in excess of $120,000 under
various headings of loss.
[7]
Although asymptomatic immediately prior to the collision, it is not
disputed that the plaintiff had at that time a pre-existing degenerative spinal
condition that would inevitably have caused her pain, suffering and loss. The
plaintiff concedes this is a crumbling skull situation.
[8]
One issue to determine is when the plaintiff would have become
symptomatic had no collision occurred. If it is sooner rather than later in her
life, that impacts upon the losses claimed. I am also obliged to assess the
credibility/reliability of the plaintiff and her sister. Insofar as the former
is concerned, the defence submits that her evidence as to losses sustained is
not supported by any reasonable assessment of all the evidence. In respect to
her sister, Cho Mei Tsang (hereafter referred to as Mei), the defence described
her as evasive, unresponsive and contradictory.
[9]
Two medical reports from the plaintiffs family doctor, Raymond Kwan,
were filed as exhibits and Dr. Kwan was cross-examined at trial. No other
medical evidence was proffered. His first report was dated September 14, 2010
and the second, January 18, 2012.
[10]
Dr. Kwan described the initial visit following the collision on
December 29, 2008 at which the plaintiff complained of some low back pain for
which she had taken pain killers. His physical examination noted full
movements of the neck; lumbar flexion and extension were mildly limited with
straight leg raise of 95 degrees; and squatting was full and lower limb
strength was normal. He made an initial diagnosis of back sprain.
[11]
The plaintiff returned on January 9, 2009, complaining of upper and
lower back ache. His examination showed full movements of the neck with
moderate spasm of both trapezius muscles. Lumbar movements were mildly limited
with moderate para lumbar spasm.
[12]
On a January 23 visit the plaintiff said that she obtained some relief from
back pain with physiotherapy. At this point she had ceased taking oral
medication as it made her too drowsy. On February 9 she complained of lower
back pain but the doctor noted only mild trapezius spasm. Celebrex and
Rivotril were prescribed. On February 28, the plaintiff reported having
persistent back pain related to caring for her mother.
[13]
The plaintiff made a trip to Hong Kong in March with her mother and
sister to visit their father who resides there. She told Dr. Kwan that her
condition worsened during the long flights. Dr. Kwan noted on an April 4,
2009 visit mild trapezius spasm.
[14]
Continued back pain complaints led Dr. Kwan to refer the plaintiff
to a neurologist, Dr. Charles Tai. On a June 5, 2009 visit to Dr. Kwan,
she told him that she felt some improvement and Dr. Kwan considered his
examination of her as normal. He suggested she use a back brace at work which
he thought might alleviate the pain she experienced when doing increased work.
[15]
Dr. Tai reported to Dr. Kwan that his assessment of the
plaintiff was that she suffered lumbar spine degeneration leading to lower
back pain. He ruled out any nerve impingement by the bulging discs. A CT scan
and X-rays suggested to Dr. Kwan minimal generalized marginal osteophytic
lipping and minimal subluxation of L5 on S1.
[16]
Dr. Tai expressed to Dr. Kwan his opinion that the plaintiff
likely had thoracic and lumbar spine degeneration and a bulging disc prior to
the collision but that they were not symptomatic.
[17]
On pages 4 and 5 of his September 14 report Dr. Kwan stated:
The accident probably did not contribute to the disc bulge as
the impact was not strong enough to cause a single disc herniation, let alone
three. However it did bring on soft tissue discomfort which [was] prolonged due
to these pre-existing conditions…Therefore all of her back discomfort [was]
soft tissue in nature. It would be impossible to distinguish how much of her
back discomfort was due solely to the accident and how much was due to the
degeneration. The pre-existing medical conditions certainly prolonged her
discomfort but she was able to return to work quickly.
[18]
Insofar as his overall assessment of the plaintiff was concerned, he
opined that:
In summary, thirty-five year old accountant suffered neck and
back sprain directly as a result of the car accident on December 22, 2008. She
was treated with oral and topical medications, physiotherapy, acupuncture,
chiropractic measures and rehabilitation exercise. She progressed slowly due to
pre-existing asymptomatic degenerative disease and poor muscle conditioning. She
was totally disabled only for a few days due to her desire to continue working
and the nature of her job. As there is no evidence of structural damage, no
permanent disabilities are expected. She may experience occasional non-disabling
back discomfort that would require some passive treatments. According to the
neurology consultant, the disc bulging at three lumbar levels was an incidental
finding that probably did not contribute to her discomfort or disability.
[19]
The last report, dated January 18, 2012 repeated some of the earlier
opinions and noted the plaintiffs continued complaints of low back pain with
prolonged sitting or housework, concluding that:
She was totally disabled only for a few days because she
wanted to work as long as her pain was tolerable. She continued to experience
non-disabling back discomfort when she sat for too long at work. As there was
no evidence of structural damage, no permanent or residual disabilities are
expected. She may need some passive manual treatments such as physiotherapy in
the future with exacerbation of her back pain. After her recovery, the accident
did not affect her ability to work except sitting for long hours during overtime.
[20]
In cross-examination Dr. Kwan conceded that the plaintiff would
inevitably have suffered from back pain, given her pre-existing degenerative
condition and although he could not say when that might have occurred, he did
concede that it could have happened at any time.
[21]
Between January 9, 2009 and October 24, 2010 the plaintiff received 104
treatments from medical professionals in the following disciplines:
physiotherapy, active rehabilitation, acupuncture, and massage therapy.
The Plaintiff
[22]
Ms. Tsang is now 37 years old. She resides with her elderly mother
on East 3rd Ave. in Vancouver, B.C. The house is owned by her mother
and a brother who does not live there.
[23]
The plaintiff graduated from Simon Fraser University then commenced
employment as an accountant with Tom Lee Music. She obtained CGA certification
while on this job.
[24]
Ms. Iris Fan, the comptroller at Tom Lee described the plaintiff as
her assistant, who prepares month and year-end returns for shareholders, does
credit checks and some retail sales work. The full extent of her duties is set
out in Exhibit 2, tab 7. According to Ms. Fan, the plaintiff is a
valued employee.
[25]
Prior to the collision Ms. Fan said that the plaintiff averaged
about 20 hours a month in overtime work. I had difficulty determining just what
the plaintiff might have lost in terms of post collision overtime work.
[26]
The evidence indicated that employees could either bank overtime or be
paid. However, only Ms. Fan could authorize paid overtime. Apart from some
vague reference to observing that the plaintiff cannot sit for more than four
hours at a time and that she occasionally struggled to complete her work, my
sense of Ms. Fans evidence was that the plaintiff is doing pretty much
everything she did pre-collision.
[27]
I was told that the plaintiff received an extra $800 a month for six
months as a reward for filling in for an employee who was on maternity leave. I
believe this commenced in 2010 and carried over into January and February of
2011. In addition she received a bonus of $4,000 in 2010 which she said was the
first year she received a bonus.
[28]
Ms. Fan testified that bonuses were paid in 2007 and 2008 but she
did not know whether the plaintiff received any in those years but that she
performed well in those years. The plaintiff also received a bonus of $3,500
in 2011.
[29]
I had some difficulty appreciating the plaintiffs answers to questions
posed, particularly in cross-examination. Although the plaintiff obtained a
degree from Simon Fraser University, her evidence and that of her sister Mei
was given through a Cantonese interpreter.
[30]
At her examination for discovery the plaintiff told counsel that she was
now 80% recovered. At trial she explained that she was only talking about how
she felt that particular day, and did not intend to convey the impression that
she was generally 80% recovered. I did not believe her. She made several
references to the remaining 20% disability persisting over the past year. I
had no difficulty concluding that on July 15, 2011 (the day of discovery) she
conveyed to counsel and intended to convey the fact that she was then 80%
recovered.
[31]
Both the plaintiff and her sister displayed moments of anger directed to
defence counsel during cross-examination. Although I do not accept that the
plaintiff was untruthful in her responses, I did find that she embellished her
losses to some degree, claiming a disability to perform many functions that I
found questionable.
[32]
I agree with defence counsel that her sister Mei was evasive,
unresponsive, and contradictory.
[33]
One of the claims being advanced by the plaintiff relates to the care
she says she can no longer give her mother. In support of this claim, the
plaintiff testified as to the work she did prior to the collision and the
limited work she could do post-collision. Her sister, Mei, described in minute
detail the work she (Mei Tsang) now had to do. I had difficulty accepting much
of what she said.
[34]
I have no difficulty accepting that the plaintiffs mother does require
considerable care from family and that the majority of this care was provided
by the plaintiff before the collision. Mrs. Tsang Sr. is 75 years old and
has limited mobility due to a stroke and bypass surgery. Dr. Kwan described
her as a large woman who requires considerable care.
[35]
The plaintiff historically assisted her mother in her daily ablutions,
took her about in her wheelchair for shopping, doctors appointments and
attended to her meals and other duties within the home. This included getting
up during the night to assist her to go to the bathroom. There are two dogs in
the home which the plaintiff would regularly exercise.
[36]
Post-collision, the plaintiff said she could do few of these activities
and had to rely upon her sister Mei. She said that Mei came to the house for
about two hours each day Monday to Friday and on Saturday she was there from 9
AM to 7 PM. Sundays were irregular; Mei came on some Sundays but not others. Meis
husband does some of the yard work.
[37]
Mei Tsang claims that pre-collision, she never did a thing for her
mother. Counsel in cross-examination asked her, In all those times before the
motor vehicle accident when you went to see your mother you never once did any
work for her? She answered, No. I did not believe her.
[38]
According to Mei, she is at the house from 5:30 PM to 8:30 or 9:00 PM
every weekday night. She testified that on Saturdays, she arrives at about 9:00
AM and stays until 8:00 PM or so and in summer, given additional yard work,
she said she might not get to her own home until 10:00 PM.
[39]
In cross-examination she claimed to go to her mothers home many
Sundays. At first she said she only went a very few Sundays. When it was suggested
she actually seldom went on Sundays, she suddenly converted from very few to
many Sundays.
[40]
Defence counsel suggested to her that her evidence indicated she spent
an extraordinary amount of time on behalf of her mother and pondered just how
much cleaning and care was really required. Her response was to reiterate all
she was required to do, all of which struck me as excessive and not
particularly credible.
[41]
Neither the plaintiff nor her sister was capable of conceding the
obvious. I had difficulty accepting all of their claims in respect to work and
services performed and had difficulty accepting the extent of the plaintiffs
alleged inability to provide care for her mother.
[42]
While I accept that a modest impact with minimal damage does not necessarily
lead to modest or minor injury, in this case, given the medical opinions
expressed and my assessment of the plaintiff and her sister, I have concluded
that the plaintiff has not suffered the extensive injuries and losses she
claims.
[43]
I have also concluded that given the plaintiffs prior condition, any
force however minor, would render her symptomatic. Indeed, Dr. Kwan, in
cross-examination agreed that something as trivial as a sneeze, or lifting the
wrong way could render the degenerative condition symptomatic.
[44]
In my view, that opinion places this case within the measurable risk
cases cited in Gohringer v. Hernandez-Lazo et al, 2009 BCSC 420 where
Russell J. at para. 92 stated:
In a crumbling skull situation, as in this case, the plaintiff
has a pre-existing condition which is active, or likely to become active. The
pre-existing condition does not have to be manifest or disabling at the time
of the tort to be within the ambit of the crumbling skull rule; Barnes at
para. 89, citing [T.W.N.A. v. Canada (Ministry of Indian Affairs),
2003 BCCA 670]. In crumbling skull situations, the defendant is only liable for
damages caused by the accident and responsible for returning the plaintiff to
their original position. As Major J. stated in Athey: the defendant is
liable for the additional damage but not the pre existing damage: at para. 35.
The defendant is therefore not liable for the effects of the pre-existing
condition that the plaintiff would have experienced in any event: [T.W.N.A].
at para. 52. If there is a measurable risk that the pre-existing
condition would have impacted the plaintiff in the future then, regardless of
the defendants negligence, a court can take this into account in awarding
damages: at para. 35.
Non-Pecuniary Damages
[45]
The plaintiff suffered modest injuries to her neck and back in this
collision that occurred on December 22, 2008. Apart from time off work for
medical appointments, she has not been deprived of employment income caused by
this collision. By her own admission she was 80% recovered by July 15, 2011. In
my view an award of $40,000 for general damages further reduced by 20% for the
measurable risk associated with her pre-existing condition is adequate
compensation. I therefore make a non-pecuniary award of $32,000.
Past Income Loss
[46]
The plaintiff claims $10,980 under this heading. The defendant does not
dispute a claim of $2,544.13 representing the value of time off work to attend
medical appointments, less sick days which get deducted from sick leave.
[47]
As reported earlier in this judgment, the plaintiffs employer preferred
employees to bank overtime and take equivalent time off when desired. Only
rarely would authorization be given for paid overtime. Historically, the
plaintiff used all of her banked overtime both before and after the collision.
[48]
In my view, the defendants concession to compensate the plaintiff for
$2,544.13 under this heading is a reasonable sum and I make that award.
Future Income Loss/Loss of Future Earning Capacity
[49]
The plaintiff claims she has lost the ability to perform overtime in
the future. She has not. In 2010 and 2011 she took on additional work, filling
in for an employee on maternity leave, for which she was paid. There was some
dispute between Ms. Fan (the comptroller) and Ms. Tsang as to whether
this actually involved extra work but clearly it did. She was paid an extra $4,800
so the employer must have considered it extra work; certainly Ms. Tsang
thought it was. In my view she is capable of performing whatever overtime work
she might wish to do. The collision has not (adversely) affected her ability to
work overtime.
[50]
Insofar as lost earning capacity is concerned, I am unable to accept
that she has established any such loss. She has been and continues to be a
valued employee of Tom Lee Music. She testified that she has no plans to leave
that employment where she has been for ten years.
[51]
There is simply no evidence of a substantial possibility giving rise to
compensation for diminished earning capacity; see Steward v Berezan,
2007 BCCA 150 at para. 18.
Loss of Housekeeping Capacity
[52]
There is no medical evidence to support this claim and as indicated
earlier in this judgment, I did not find either the plaintiff or her sister
credible in respect to the claims made under this heading. The defendant
submits that in any event there is no legal basis to support a claim by a non-party
(Mei Tsang) to recover for services supplied for the exclusive benefit of
someone other than the plaintiff (her mother). Whether that is so, I need not
decide as I have concluded that the plaintiffs claims in this respect are
exaggerated. Nor, as indicated earlier, did I believe Mei that she performed no
services for her mother before the collision but post collision practically
lived with her, working all the time.
[53]
Defence called evidence from community caregivers which suggested that a
certain level of home care was available to the plaintiffs mother. The
plaintiff testified that her mother was a very private person who did not
appreciate care from strangers. That is certainly her right but suggests a
failure to mitigate for which the defendant should bear no responsibility.
Future Care Costs
[54]
Dr. Kwan opined that the plaintiff may need some passive manual
treatments such as physiotherapy in the future with exacerbation of her back
pain. As noted earlier in this judgment, the plaintiff received 104 treatments
from various medical professionals between January of 2009 and October 2010
directed to physiotherapy, active rehabilitation, acupuncture, and massage
therapy. Given Dr. Kwans opinion in respect to future treatments balanced
against my findings in respect to the crumbling skull issue, I award the sum
of $5,000 under this heading.
[55]
In summary, the plaintiff is entitled to non-pecuniary judgment for
$32,000, past wage loss of $2,544.13, future care costs of $5,000 and agreed
special damages of $4,239.82 for a total judgment of $43,783.95.
[56]
The parties may speak to costs if they are unable to reach agreement in
that regard.
The
Honourable Mr. Justice McKinnon