IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121123

Docket: M095197

Registry:
Vancouver

Between:

Xun Yi Yang also
known as Vic Yang

Plaintiff

And

Bill Wai-Hon Chan
and Ramez Faizan Enterprises Ltd.

Defendants

Before:
The Honourable Madam Justice Wedge

Reasons for Judgment

I.                
INTRODUCTION

[1]            
Xun Yi (“Vic”) Yang was struck and injured by a vehicle while he was
crossing Bridgeport Road in Richmond, B.C. as a pedestrian on December 6, 2007.
Mr. Yang was using a marked, signalized crosswalk at the time. The driver
of the vehicle was the defendant Bill Chan.

[2]            
In this action, Mr. Yang has claimed damages for the losses he
alleges he suffered as a result of his injuries. Specifically, his claims
include damages for non-pecuniary loss, past loss of income, loss of income
earning capacity and cost of future care.

[3]            
The defendants have admitted liability for the accident. They
acknowledge that Mr. Yang suffered soft-tissue injuries in the accident,
and is entitled to some award of damages for those injuries. However, the defendants
say that Mr. Yang fully recovered from the accident within a few months. Alternatively,
they say that if Mr. Yang continues to suffer any ongoing disability, it
is the result of pre-existing medical conditions.

II.              
FACTS

Mr. Yang’s background

[4]            
Mr. Yang is currently 58 years of age. He was born and raised in
China. Mr. Yang graduated from high school in China. He was then employed
in a leather products plant as a laboratory worker for 20 years and as a
manager for a further 10 years. He took a job in a plastic tape factory working
as a manager for three years before moving to Canada in 2006.

[5]            
Mr. Yang married in China in 1980. He and his spouse, Jane Zhang,
have one child, a daughter, who is now 31 years of age.

[6]            
Ms. Zhang emigrated to Canada in 2003, and obtained work in a
bakery. Mr. Yang and his daughter joined Ms. Zhang in Canada in July
2006.

[7]            
Mr. Yang speaks very little English. He did not study English at
school in China, and he was not required to speak English in his employment.
Both he and his spouse gave evidence at trial through an interpreter.

[8]            
In September 2006 Mr. Yang obtained a job at a company producing
granite tile called Save On Tiles & Landscaping Ltd. (“Save on Tiles”) in
Richmond. He found the job through a friend, who also spoke Chinese and worked
for the company. Mr. Yang began as a general labourer but learned on the
job to grind and polish granite for counter tops. Mr. Yang worked
primarily in the factory, using a small, hand-held tool for the grinding and
polishing of the stone. From time to time he also worked at job sites
installing the granite.

[9]            
The noise from the grinding and polishing in the factory is quite
significant. Workers were asked to wear hearing protection.

[10]        
Mr. Yang worked a five-day, 40-hour week. Initially he was paid $12
per hour, but over the next year his rate of pay was increased to $14 per hour.

[11]        
As a result of working with the machine used to grind and polish the
stone, Mr. Yang developed hand problems. He experienced numbness in his
left wrist. His left thumb became frozen in a bent position from strain to the
tendon at the base of the thumb. Mr. Yang also experienced pain in the
tendons between the third and fourth fingers of his right hand.

[12]        
Mr. Yang acknowledged that he began experiencing the hand problems
soon after he began working with stone in 2006.

[13]        
In December 2006 Mr. Yang reported to his family doctor, Dr. Simon
Shiu, that he was experiencing pain in his left thumb and right fourth finger
due to his grinding job.

[14]        
In February of 2007, Mr. Yang reported to Dr. Shiu that he was
experiencing numbness in both hands as a result of his work. Dr. Shiu
diagnosed Mr. Yang with moderately severe carpal tunnel syndrome.

[15]        
Between May and August of 2007, Mr. Yang missed approximately 10
weeks of work due to numbness in both hands.

[16]        
Dr. Shiu referred Mr. Yang to a specialist who recommended
surgery for the hand symptoms, which had been diagnosed as carpal tunnel
syndrome. Mr. Yang could not recall whether the recommendation was with
respect to the left hand or both hands. In any event, he did not want to
undergo surgery, and decided to rest his hands instead. The rest was helpful. Mr. Yang
testified that when he returned to work in August of 2007, the symptoms were
largely resolved.

[17]        
Mr. Yang acknowledged that at some point in time before the
accident of December 2007, Dr. Shiu advised him to change jobs because of
the symptoms in his hands caused by working with stone.

[18]        
At his first medical appointment with Dr. Shiu in 2006, Mr. Yang
reported a history of back pain in the preceding three to four years. Mr. Yang
testified that his back pain was episodic, and was usually triggered by lifting
heavy objects in the course of his work in China. However, the back pain during
that time was never serious enough to prevent him from working.

The Motor Vehicle Accident

[19]        
The accident occurred at about 9:00 a.m. on December 6, 2007. Mr. Yang
was on his way to work at Save On Tiles. He had disembarked from the bus and
was crossing with the traffic signal at an intersection on Bridgeport Avenue. He
was walking from the south side of the street to the north side. The driver, Mr. Chan,
was attempting a left turn through the intersection at the time his vehicle
struck Mr. Yang.

[20]        
It was Mr. Yang’s recollection that he was approximately half-way
across Bridgeport when he was struck. He was situated toward the front of Mr. Chan’s
vehicle, and was struck on his left side. The impact seemed to centre on Mr. Yang’s
left knee. He had been holding a bag in his right hand, but it was dislodged
from his hand when he was struck.

[21]        
Mr. Yang testified that he “blacked out” for what must have been a
few seconds. His next recollection was lying on the ground and feeling intense
pain in his left leg. His head was bleeding on the left side. He testified that
he also felt a sharp pain in his right hand.

[22]        
A co-worker of Mr. Yang happened to be passing by shortly after the
accident. He spoke some English, and acted as an interpreter between Mr. Yang
and the ambulance paramedics who arrived on the scene.

[23]        
According to the written report of the ambulance paramedics who treated Mr. Yang
at the scene, Mr. Yang said that he had been struck by a vehicle
travelling at low speed and fell to the ground, but did not lose consciousness.
He complained of pain to his left knee and buttock.

[24]        
Mr. Yang was transported to hospital and treated in the Emergency
Department. The physician who treated Mr. Yang wrote in the hospital chart
that Mr. Yang said he had been hit in the left knee by a vehicle and fell
to the ground on his back but did not lose consciousness. According to the
notes of both the physician and the nursing staff, Mr. Yang’s chief
complaint was pain in his left leg and buttock, and pain in his lower back.

[25]        
Mr. Yang remained in the Emergency Department for several hours and
was then discharged. No x-rays or scans were performed.

[26]        
Mr. Yang attended at Dr. Shiu’s office the next day. He told Dr. Shiu
he had been struck by a car and had lost consciousness for several seconds. Mr. Yang
reported that he was suffering from headaches, nausea and neck pain. He also
complained of pain in his left leg, hip, and buttock, and pain in his right
wrist. Dr. Shiu observed abrasions to Mr. Yang’s left knee and
shoulder, but no obvious swelling.

[27]        
Mr. Yang testified that a few days after the accident, he began
experiencing ringing in his ears which has not abated since that time. He also
felt dizzy and nauseous. The left side of his body — including his knee, hip
and buttock — was very painful, as was his neck.

[28]        
Mr. Yang saw Dr. Shiu again on December 11, 2007. At that time
he complained of headache, back pain and pain to the left side of his body. Dr. Shiu
observed multiple contusions, and concluded that Mr. Yang had suffered
soft tissue injuries to his leg, back and neck.

[29]        
At a further visit on December 20, Dr. Shiu recorded Mr. Yang’s
complaints of continuing pain in the left leg and lower back, and swelling in
the right wrist. On that visit, Dr. Shiu also recorded Mr. Yang’s
report of experiencing ringing in his ears. Dr. Shiu’s clinical notes
reflect that he diagnosed Mr. Yang’s complaint as post-trauma tinnitus.

[30]        
In subsequent visits in January 2008, and throughout the spring of 2008,
Mr. Yang continued to report that he was experiencing significant tinnitus
in both his left and right ears.

[31]        
Following the first post-accident visit, Dr. Shiu advised Mr. Yang
to remain off work. He recommended physiotherapy and massage for the soft
tissue injuries. Mr. Yang attended physiotherapy three times weekly for
three months. He was provided with ultrasound, heat, massage and an independent
exercise routine.

[32]        
In early March 2008, Mr. Yang attended Karp Rehabilitation Clinic,
where his rehabilitation status was assessed. Karp recommended a six to eight
week active rehabilitation program consisting of four to five sessions weekly.

[33]        
Mr. Yang attended and completed the recommended rehabilitation
program.

[34]        
Mr. Yang returned to work at Save On Tiles in early May 2008. He
was reassessed by Karp on June 9, 2008. By the time of the reassessment, he had
been working full-time hours for almost a month. Mr. Yang reported to his
assessor at Karp that his neck pain was 75% better and his back pain was 65%
better. However, there was no improvement in the tinnitus.

Mr. Yang’s condition following his return to work

[35]        
Following his return to work in May 2008, Mr. Yang remained
employed by Save On Tiles on a full-time basis for two months, after which he
obtained a job as a stone polisher at Rightway Stone Art working primarily in
the factory. He worked at Rightway from July 16, 2008 until June 4, 2009.

[36]        
Mr. Yang did not miss work for any reason between May 2008 and June
2009.

[37]        
In June 2009, Mr. Yang was laid off from Rightway. Mr. Yang
testified that shortly before he was laid off, he approached his employer to
say that he could no longer work because of lower back pain, and provided a
doctor’s note to that effect. According to Mr. Yang, his employer’s
response was that he would be laid off and should apply for regular
unemployment insurance benefits. Accordingly, Mr. Yang applied for and
obtained those benefits. Mr. Yang said he was aware that in order to
qualify for regular unemployment insurance (as distinct from medical benefits),
he was required to be ready, willing and able to return to work at any time. He
acknowledged that he completed the necessary forms indicating his ability to
work should a job opportunity present itself.

[38]        
The factory manager at Rightway Stone Art, Patrick Chen, testified that Mr. Yang
was laid off in June 2009 due to a shortage of work. Mr. Chen denied being
told by Mr. Yang that he was experiencing any physical difficulties or
medical issues, and denied having been provided with any doctor’s note or other
medical information concerning Mr. Yang.

[39]        
The clinical records of Dr. Shiu indicate that in April 2009, and
again in June 2009, Mr. Yang presented with complaints of pain in his
right hand. There is no indication in the record that Dr. Shiu suggested
to Mr. Yang that he take time off work as a result.

[40]        
Mr. Yang remained off work until May 2, 2010, when he returned to
Rightway on a full-time basis. He worked there for a month, after which he
accepted a job as a stone polisher at another stone and tile company, Goldasia.
Mr. Yang worked at Goldasia from June 1, 2010 until March 31, 2011 when he
went on medical leave due to severe back pain. He qualified for medical
unemployment insurance benefits.

[41]        
In May 2012, Mr. Yang once again returned to full-time work as a
stone polisher. He has worked continuously for several different stone
companies since then.

[42]        
Mr. Yang testified that the tinnitus in both ears has persisted
since the accident and has improved only marginally over time. He continues to
suffer from ringing in both ears. While the tinnitus does not affect his
ability to work while he is on the job, it is constantly a distraction. Further,
he finds the tinnitus very disruptive of his ability to sleep. He is wakened
several times each night by the ringing sounds, and the lack of sleep affects
his mental acuity during the day. Mr. Yang takes sleeping pills to assist
his sleep, but they also have the effect of making him drowsy during the day.

Medical evidence concerning Mr. Yang’s present condition

[43]        
Dr. William Yu, an orthopaedic surgeon, examined Mr. Yang in
May 2011 on referral from Dr. Shiu. Dr. Yu saw Mr. Yang again in
September 2011. He diagnosed Mr. Yang with mechanical low back pain.

[44]        
Dr. Yu testified that he asked Mr. Yang whether he had
experienced any previous trauma or medical conditions, and that Mr. Yang’s
response was that in the past he “had just a bit of back pain, on and off”. Dr. Yu
took the response to mean that any back pain Mr. Yang experienced before
the accident was insignificant.

[45]        
Dr. Neil Longridge is an ear, nose and throat (ENT) specialist. He
is a clinical professor in the Division of Otolaryngology (Faculty of Medicine)
at the University of British Columbia, which deals with the diagnosis and
treatment of ear pathology. He specializes in the evaluation of tinnitus,
hearing loss and dizziness.

[46]        
Dr. Longridge examined Mr. Yang and evaluated his condition in
December 2011. The evaluation included extensive testing at Vancouver General
Hospital to assess the severity of Mr. Yang’s tinnitus and related
dizziness. Several objective tests detected abnormalities in both inner ears
and dizziness.

[47]        
Dr. Longridge diagnosed Mr. Yang’s tinnitus as being of
moderate severity, which, he explained in his evidence, means that the
condition is a significant problem for Mr. Yang.

[48]        
According to Dr. Longridge, in light of the proximity of the onset
of the tinnitus to the December 2007 accident, it is highly unlikely that there
could be any cause for the tinnitus other than the accident.

[49]        
Dr. Longridge was asked whether Mr. Yang’s ongoing exposure to
the noise of grinding and polishing stone in a factory could be the cause of
his tinnitus. Dr. Longridge expressed the view, based on the results of
specific hearing tests he conducted on Mr. Yang, that his exposure to
noise in the workplace was unlikely to have been the cause of the tinnitus.

III.            
DISCUSSION

A.            
Non-Pecuniary Loss

Legal Principles

[50]        
The purpose of an award for non-pecuniary loss is to compensate the
plaintiff for pain, suffering, disability and loss of enjoyment of life.

[51]        
Non-pecuniary loss must be assessed for both losses suffered by the
plaintiff to the date of trial and for those he will suffer in the future. The
award of a sum of money is to permit the plaintiff to substitute other
amenities of life for those he has lost.

[52]        
In Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19 [Stapley],
Kirkpatrick J.A., writing for a majority of the Court, quoted at para. 45 Lindal
v. Lindal, [1981] 2 S.C.R. 629 with respect to the underlying rationale for
non-pecuniary damages and the considerations that should guide a court in
awarding such damages. In that case, the Court emphasized that the amount of an
award for non-pecuniary damages should not depend only on the seriousness of
the injury. Rather, the amount of the award must depend as well on its ability
to ameliorate the condition of the injured plaintiff considering his or her
particular situation. For that reason, the gravity of the injury will not, of
itself, be determinative of the amount of the award. An appreciation of the
loss in the context of the specific plaintiff’s circumstances is the key, and
“the need for solace will not necessarily correlate with the seriousness of the
injury”.

[53]        
The factors to be considered, as outlined in Stapley, are now
well established. They include the following:

·      
the age of the plaintiff;

·      
the nature of the injury;

·      
the severity and duration of pain;

·      
level of disability;

·      
emotional suffering;

·      
impairment of family, marital and social relationships;

·      
impairment of physical and mental abilities;

·      
the plaintiff’s stoicism (a factor that should not penalize the
plaintiff).

Positions of the Parties

[54]        
Mr. Yang argued that he suffered acute pain from the significant
soft tissue injuries resulting from the accident which affected both his
personal and working life in the first eight months following the accident and
intermittently thereafter. Mr Yang submitted, however, that most relevant to
the issue of an appropriate award for non-pecuniary loss is the moderately
severe tinnitus he has suffered since the accident and will likely continue to
suffer for the rest of his life.

[55]        
According to Mr. Yang, the authorities support his position that
the appropriate range of an award for this loss is $60,000 to $100,000.

[56]        
The defendants argued that Mr. Yang suffered some acute pain in the
initial weeks after the accident, but gradually improved such that he was back
to work on a full-time basis within six months. The ongoing tinnitus has not
affected his ability to work or function effectively on a day-to-day basis.

[57]        
It is the defendants’ position that an appropriate award for
non-pecuniary loss in the circumstances of this case is in the approximate
range of $25,000 to $35,000.

Decision

[58]        
I have reviewed the case law cited by both parties. Mr. Yang relied
primarily on Moukhine v. Collins, 2012 BCSC 118, in which the
plaintiff was awarded non-pecuniary damages in the amount $90,000. In that
case, the plaintiff suffered, among other injuries, inner ear damage which
caused ongoing tinnitus, dizziness, headache, balance problems and nausea. The
dizziness was such that he was no long able to work full-time in his profession
as a computer programmer. He had been successful and accomplished at his job
and was esteemed by his colleagues. Due to the dizziness, he was no longer able
to participate in many outdoor activities that had formed an important part of his
life.

[59]        
The defendants argued that Mr. Yang’s injuries more closely
resembled those of the plaintiff in Chumber v. Ford Credit Canada, 2006
BCSC 1935, 154 A.C.W.S. (3d) 598, who suffered mild tinnitus in one ear
following the accident, and continued to have some intermittent tinnitus at the
time of trial. The Court awarded $35,000 in non-pecuniary damages on the basis
that the plaintiff had suffered only a moderate soft tissue injury. There was
no mention of the tinnitus, and it appears there was no evidence to the effect
that the tinnitus caused ongoing difficulties for the plaintiff.

[60]        
Most of the cases cited by the defendants involved plaintiffs who
suffered moderate soft tissue injuries.

[61]        
 Mr. Yang’s circumstances differ from those of the claimants in most
personal injury cases because of his ongoing tinnitus. That condition has not
prevented him from working, but it has been and continues to be disruptive of
his sleep and his enjoyment of life.

[62]        
I accept the evidence of Dr. Longridge that Mr. Yang’s tinnitus
was caused by the accident. According to Dr. Longridge, given the
proximity of the onset of the condition to the accident, it is most unlikely
that there is any other cause. Further, the tinnitus is moderately severe
which, Dr. Longridge testified, is capable of significantly diminishing
one’s enjoyment of life. It is a condition Mr. Yang will likely have to
live with for the rest of his life.

[63]        
Taking into account the pain and disruption suffered by Mr. Yang
due to his soft tissue injuries in the first six months after the accident,
together with the ongoing tinnitus condition which is unlikely to resolve and
will continue to interfere with his enjoyment of life, I have concluded that an
appropriate award of damages for non-pecuniary loss is $60,000.

B.             
Past Income Loss

[64]        
It was common ground between the parties that Mr. Yang’s absence
from work between the date of the accident until he returned to work on May 5,
2008, was the result of the accident. It was also common ground that as a
result of the injuries he suffered in the accident, he was medically unable to
return to work before May 5, 2008.

[65]        
It was a matter of agreement between the parties that Mr. Yang’s
wage loss between the date of the accident and his return to work on May 5,
2008 was $11,700.

[66]        
As noted earlier, Mr. Yang successfully returned to work for 13
months. He was not absent from work during that time. On June 4, 2009 he was
laid off from Rightway Stone Art. I accept the evidence of Mr. Yang’s
supervisor, Mr. Chen, that the lay-off was due to a shortage of work. Mr. Yang
advanced no evidence, medical or otherwise, to support his assertion that the
cause of the lay-off was back pain or right hand pain related to the accident. Mr. Yang
did not qualify for medical Employment Insurance; he qualified for regular Employment
Insurance, and as such he remained ready, able and willing to work in the event
that a suitable job opportunity presented itself.

[67]        
Mr. Yang then returned to work at Rightway Stone Art on May 4, 2010.
He decided to accept a job at Goldasia in June 2010, where he worked
continuously for the ensuing 10 months until going on medical Employment
Insurance on April 3, 2011. At that time, he left the workforce for
approximately four months as a result of back pain.

[68]        
Mr. Yang returned to work in August 2011 and has worked
continuously since then, on a full-time basis, grinding and polishing stone.

[69]        
On the basis of the foregoing chronology, I cannot accept Mr. Yang’s
claim for past wage loss beyond May 5, 2008.

[70]        
When Mr. Yang went off work in June 2009, he had been continuously
employed on a full-time basis for 13 months. He was then on regular Employment
Insurance benefits. There is simply no medical evidence substantiating his
claim that back pain or right hand pain caused him to leave work at that time. More
importantly, there is no evidence linking his asserted back pain and right hand
pain to the accident.

[71]        
While Mr. Yang complained of a swollen wrist after the accident,
there was no medical evidence to suggest that the accident exacerbated his
pre-existing carpal tunnel syndrome, which is a repetitive strain injury.

[72]        
I turn then to the absence from work between April and August 2011, when
Mr. Yang received medical Employment Insurance benefits for back pain. In
my view, there is no persuasive medical evidence suggesting that the back pain Mr. Yang
suffered in December 2007 in the accident was the cause of his absence from
work in 2011. The event of back pain in 2011 is simply too remote from the time
of the accident, particularly in light of the extended periods of time Mr. Yang
worked on a full-time basis in the stone industry in the interim. He worked
throughout those periods of time without any absences from work due to back
pain.

[73]        
Accordingly, I award Mr. Yang $11,700 for past wage loss. This
award is subject to deduction for income tax. Counsel for the defendants
calculated the net award at $9,139.20. If the parties agree that is the correct
amount, it is so awarded.

C.             
Loss of Income Earning Capacity

[74]        
In Perren v. Lalari, 2010 BCCA 140, 317 D.L.R. (4th) 729, the
Court of Appeal reiterated the burden carried by the plaintiff concerning loss
of future income earning capacity. At para. 32, the Court said the
following:

A plaintiff must always
prove, as was noted by Donald J.A. in Steward, by Bauman J. [as he then
was] in Chang, and by Tysoe J.A. in Romanchych, that there is a
real and substantial possibility of a future event leading to an income loss. If
the plaintiff discharges that burden of proof, then depending upon the facts of
the case, the plaintiff may prove the quantification of that loss of earning
capacity… [Emphasis in original.]

[75]        
As the authorities establish, an appropriate award under this head of
damage must be based on the medical evidence.

[76]        
It follows from my earlier reasons concerning Mr. Yang’s claim for
past wage loss that I do not accept Mr. Yang’s argument that any back pain
or right hand pain he continues to suffer was caused by the accident.

[77]        
The medical evidence establishes that Mr. Yang suffered from
moderately severe carpal tunnel syndrome in both hands before the accident. There
was no suggestion in the medical evidence that the right hand pain Mr. Yang
suffered in the years following the accident was anything other than a further
manifestation of the carpal tunnel syndrome, as distinct from trauma suffered
to the right hand in the accident. The evidence also establishes that he had
complaints of back pain for several years before the accident. More
significantly, he worked continuously for lengthy periods of time with no back
pain. As noted earlier, I conclude that any ongoing back pain is simply too
remote from the accident to found a claim for damages.

[78]        
Mr. Yang’s ongoing medical difficulty is the tinnitus, which the
medical evidence conclusively establishes was caused by the accident. The
tinnitus is likely to continue to plague Mr. Yang. The question is whether
it is likely to cause him to be absent from work in the future.

[79]        
I accept Mr. Yang’s evidence that the tinnitus causes him
significant sleep disruption from time to time, which results in fatigue during
the day. I am persuaded by the evidence of Dr. Longridge that while the
tinnitus has not yet caused absences from work, there is a substantial
likelihood that the tinnitus may cause the occasional absence in the future as
a result of loss of sleep and fatigue, particularly as Mr. Yang ages. Prescribed
sleeping medication has attenuated Mr. Yang’s loss of sleep, but at the
same time has caused problems with cognition during the day.

[80]        
It is not possible to calculate the loss with any mathematical precision.
On the evidence as a whole, I award Mr. Yang $10,000 for loss of income
earning capacity.

D.            
Cost of Future Care

[81]        
Dr. Longridge testified about equipment designed to treat tinnitus,
which costs in the range of $12,000. However, medical opinion concerning proof
of the efficacy of this treatment is as yet equivocal. Further, there is no
evidence to suggest that such treatment has been specifically recommended for Mr. Yang,
or that Mr. Yang has any intention of purchasing the equipment necessary
for the treatment.

[82]        
I accept that Mr. Yang will continue to require prescription
sleeping medication to address the sleep disruption caused by the tinnitus. His
counsel suggested that a reasonable award to cover that cost is $3,000. I
accept that estimate of cost. Accordingly, I award Mr. Yang $3,000 for
cost of future care.

Special Damages

[83]        
The parties are agreed that the special damages award should be in the
amount of $1,898.35.

IV.           
SUMMARY OF CONCLUSIONS

[84]        
By way of summary, Mr. Yang is entitled to the following award of
damages:

1)    Non-pecuniary
loss:  $60,000;

2)    Past wage loss: 
$9,139.20 (net of income tax deductions);

3)    Loss of
income-earning capacity:  $10,000;

4)    Cost of future
care:  $3,000; and

5)    Special damages:
$1,898.35

[85]        
In total, Mr. Yang is entitled to an award of damages in the amount
of $84,037.55.

[86]        
Subject to further submissions by the parties, Mr. Yang is entitled
to his costs.

The
Honourable Madam Justice C.A. Wedge