IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130607

Docket: M125373

Registry:
Vancouver

Between:

Kau Por
"Bill" Wong

Plaintiff

And

Jason Oloman
Robillo
and Jennifer Ho Tan Seto

Defendants

Before:
The Honourable Mr. Justice Wong

Oral Reasons for Judgment

Introduction

[1]            
This is a personal injury claim arising out of a motor vehicle accident
on September 6, 2010.  The defendants suddenly emerged from a stop sign and
proceeded quickly northbound one block west of 1st Avenue and Renfrew in
Vancouver.  The plaintiff was proceeding westbound on 1st Avenue and broadsided
the right mid-side and rear of the defendants’ vehicle.  The impact was
severe.  The resulting damage caused both vehicles to be undriveable and
subsequently written off.  Liability was admitted by the defendants.  This
trial was an assessment for damages.

The Background

[2]            
Following the accident, the plaintiff, Mr. Wong, developed onset of neck
and low back discomfort.  He presented himself to his family physician, Dr.
Raymond Chow, on September 7, 2010.  Dr. Chow noted neck and back complaints. 
He noted painful range of motion in the plaintiff’s neck and back and
tenderness to palpitation over his lower back and restriction in range of
motion in his trunk.  Dr. Chow’s diagnosis was neck and back strain, and recommended
rest, analgesics, and anti-inflammatories.

[3]            
Approximately three days later, Mr. Wong returned to Dr. Chow’s office
complaining of numbness in the little finger of both hands.  Dr. Chow examined
Mr. Wong and noted normal strength and power, and X-rays of his cervical spine
were ordered.  Review of these X-rays noted arthritic changes at C4-5 level and
were likely longstanding.  Examination on September 21, 2010, by Dr. Chow noted
Mr. Wong’s power and sensation to touch was intact.  Dr. Chow recommended
further physiotherapy.  Mr. Wong continued on with physiotherapy at a variety
of different institutions including Kingsway/Hastings Physiotherapy Services
and eventually ended up at the KARP Program.  Review of the records from KARP
document intake restrictions and impairment and significant improvement in neck
and back, subjective and objective measures.

[4]            
Currently, Mr. Wong says his neck is significantly better.  He has very
little discomfort in his neck.  He has no restriction in range of motion.  He
has no focal area of discomfort in his neck for the most part.  He does not get
symptoms in his neck radiating down his arms into his fingers.  He takes no
medication for his neck discomfort.  With respect to his numbness in his hands,
this continues.  He has a feeling of pins and needles occasionally in the
little finger of both hands.  It tends to be constant.  It is not associated
with movement in his neck.  It is not exacerbated with cough or sneeze.  It has
not been associated with loss of function in his hand with respect to range of
motion and his fingers are grip strength.  He has had no further investigations
with respect to this complaint.

[5]            
His main area of complaint is low back discomfort.  This is intermittent. 
It is significantly better than at the time of the accident.  The pain is in
the lower thoracic, upper lumbar region.  It is focal to this area.  He finds
that repetitive bending of the spine or prolonged sitting for more than a half
an hour causes some exacerbation in his back discomfort.

[6]            
There is no pre-existent history of numbness in his fingers prior to his
motor vehicle accident of September 6, 2010.  Mr. Wong has a history of low
thoracic, upper back pain in the past.  At age three while residing in Hong
Kong, he was diagnosed with tuberculosis in his lower thoracic region.  He
ended up being treated for this infection, including being immobilized in a spica
cast for approximately two-and-a-half years.  Eventually this resolved and he
had no subjective or functional complaints referable to this thoracic or lumbar
spine area following this incident until the motor vehicle accident in
question.  Dr. Chow’s records note that Mr. Wong had X-rays of his lumbar spine
dated February 16, 2011, which revealed old trauma as well as moderate
degenerative changes and significantly narrow L4-5/S1 disc spaces.

[7]            
The plaintiff, Mr. Wong, is currently 58 years of age.  He is married. 
He has one child, Simon, aged 27.  He resides in his own home.  He is able to
drive.  He is independent for all activities of daily living.  Prior to the
motor vehicle accident, the plaintiff enjoyed riding a stationary bicycle and
going to the horse races.  Following the motor vehicle accident, he has
returned to stationary bike riding to try to improve his overall fitness and
continues to attend the races.

[8]            
Mr. Wong was born and raised in Hong Kong, has a grade 6 education, and
is unilingual Cantonese speaking.  He left school at age 15 and worked
primarily as a cook in Hong Kong and in Central America.  In the early 1980s,
he immigrated to Canada to join his family unit of mother and five siblings. 
His father remained in Hong Kong.  He met his wife, Phyllis, and married.  His
first job in Vancouver was as a cook in a busy and large Chinese restaurant for
seven years.

[9]            
During this time, he purchased a modest home in East Vancouver,
demolished it, and built a new home on the site with his own labour and
assistance from a brother.  He eventually joined that brother in a two-man
residential interior renovation business catering exclusively to
Chinese-speaking homeowners.  Payment was partly by cheques and partly by
cash.  Only cheque payments were deducted as income for income tax purposes. 
Renovation work required heavy lifting and terms of moving and installing
Gyproc panels and ceramic tiles.

[10]        
In 2004, the plaintiff obtained work with Gilmon Construction, a small
house foundation and framing company.  He was paid $20 to $25 an hour for a
work schedule of five to six days per week.  Half of those wages were paid by
company cheques and half by cash.  Only the cheque payments were declared for
income tax.  His average declared income until the motor vehicle accident was
generally $20,000 per year.  Another $20,000 per year were not declared. 
Plaintiff’s counsel, rightly at this trial, claimed only past declared earnings
as a measure for the plaintiff’s claims of past and potential income loss.

[11]        
Prior to the motor vehicle accident, the plaintiff was always gainfully
employed and never was on welfare.  He has little comprehension of English,
lives, works, and socializes exclusively within the Chinese-speaking
community.  At trial, he gave his evidence with the assistance of a
Cantonese-speaking translator.  I found his evidence to be candid and
forthcoming.  He is basically a hardworking man who wants to go back doing the
type of construction work he did pre-accident.  He is committed towards
reconditioning himself.  To return to his work, he undertook 41 sessions of
physiotherapy and 27 sessions of work-hardening conditioning.  I am satisfied
he is not a complainer nor a malingerer.

[12]        
Prior to the motor vehicle accident, Mr. Wong worked in construction for
more than 10 years.  Following the motor vehicle accident, he was unable to
return to work for a significant period of time.  He attempted to return to
work on January 27, 2011.  However, he could only complete four to five hours
of work due to complaints in his low back.  He returned to KARP for further
physiotherapy, and on review of KARP records dated August 9, 2011, it appears
that both KARP and Mr. Wong were satisfied that he would be able to return to
work at this juncture.  However, when Mr. Wong attempted to return to work on
July 18, 2011, he was informed by his employer that they had hired new people
and there was no further work available for him.

[13]        
His family physician Dr. Raymond Chow’s assessment dated October 29,
2011, reveals the following:

In summary, patient sustained soft tissue injury to his neck
and back muscles.  He was treated with physiotherapy (passive treatment) as
well as active rehabilitation including exercise.

I estimate that he was disabled for work from day of accident
until December 15, 2010.  He was encouraged to return to work as activities and
exercise prevents muscle atrophy and has been shown to expedite recovery.

While I expect the neck and back to have recovered for quite
some time, the lingering numbness of hands is not surprising and is most likely
due to pinched nerves in the neck.  The accident also likely aggravated
pre-existing arthritic condition of the spine.  Prognosis for neck and back
injury is excellent and I do not anticipate further complication nor need for
future therapy.

The prognosis for the pinched
nerves may linger on for some time and could wax and wane for some time to
come.

[14]        
Dr. Simon Horlick, consulting orthopaedic expert, assessment dated March
8, 2013, states:

Mr. Wong was involved in a motor vehicle accident on
September the 6th, 2010 resulting in complaints to his neck, both hands and his
low back.  He has had significant improvement with respect to symptoms in his
neck and his diagnosis was likely a myofascial sprain that has resolved.  It is
unlikely he will have any further impairment associated with this area or
significant disability related to same.  However, given that he still has
persistent numbness in his little fingers of both hands and this was
non-existent prior to the motor vehicle accident it would warrant further
investigation by a neurologist who could invoke EMG and nerve conduction
studies in this area to see if there is an entrapment or irritation of the C8
nerve root or if the condition is due to irritation of the ulnar nerve at a
more distal level.  In general, persistent numbness is often a significant
subjective complaint with respect to possible underlying pathology and should
be investigated further.

With respect to his low back, he still has intermittent
complaints in this area.  He has a history of possible post-traumatic
spondylosis secondary to TB as a child.  However, symptoms are mild and on his
physical examination of September the 6th, 2010 he has minimal measurable
impairment.  He has benefited from physiotherapy and currently is not requiring
any medications with respect to his low back.  He also likely has a myofascial
component to his ongoing intermittent low back discomfort.  I would encourage
Mr. Wong to continue to work on core strengthening, reconditioning type
protocol as well as strengthening of his paralumbar musculature.  I do not
think at this time he warrants further investigation of his low back
complaints.

In my opinion, Mr. Wong was
totally disabled from working in construction from September the 6th, 2010
until July 18, 2011.  Review of his physiotherapy and rehabilitation
documentation clearly show subjective and objective improvement in his neck and
low back complaints.  I feel that Mr. Wong will be capable of returning to
construction work as prior to the motor vehicle accident of September 6, 2010
but unfortunately a position for him does not exist currently.  Mr. Wong’s
current musculoskeletal complaints have no restriction with respect to his
avocational pursuits.  At present, I feel that Mr. Wong does not need any
further physiotherapy or other treatments other than self-directed exercises as
described.  He should have further assessment of the numbness of his little
fingers, as outlined although at present, he has no measureable impairment with
respect to the use of his hands and this should not impede his ability to
return to work in the construction field unless significant pathology is
discovered with further investigation of same.  However, I feel the likelihood
of finding significant pathology with respect to numbness in his hands is very
low.

Analysis

Non-pecuniary Damages

[15]        
The plaintiff still has chronic intermittent lower back pain which
affects his endurance and prolonged walking or sitting.  Although he is able to
carry out most household chores, it is with discomfort.  He has dramatically
improved, but he has had to live with chronic intermittent pain, anxiety, and
uncertainty for almost three years.  I would assess his pain and loss of
personal amenities past and future at $50,000.

Past Wage Loss

[16]        
Despite the fact the plaintiff has not worked for two-and-two-third
years post motor vehicle accident, defence counsel submitted that the plaintiff
should be restricted to an award of $10,000 because he has failed to mitigate
his loss by seeking alternative employment either with his brother in home
renovations or as a cook after July 2011.  Realistically, the plaintiff was not
going to foreclose possible chances of re-employment with Gilmon as first
choice by establishing employment elsewhere.  In addition, he had not yet
completed his recommended reconditioning and work-hardening program.  However,
I agree that after one-and-a-half years, it should have been evident that his
previous employer at Gilmon would not be rehiring him, perhaps because of his
injury and age, when other younger and stronger workers are available.  After
that date, he should have been more assiduous in seeking other forms of
employment.

[17]        
Accordingly, I fix his past wage loss at one-and-a-half years times
$20,000 which amounts to $30,000.  This is subject to income tax.  I will leave
it for counsel to determine the appropriate marginal rate for income tax
deduction and calculation of the net award with liberty to apply to Court if
counsel cannot agree.

Future Wage Loss

[18]        
Because of his age, 58, and despite his concerted effort to strengthen
the function of his lower back, the chronic residual deficits of intermittent
pain may well preclude the plaintiff from ever engaging in occupations
requiring heavy lifting or shifting of large objects such as house framing or
interior house renovations.  His limited formal education and little
comprehension of English will limit his access and suitability for employment
outside the Chinese-speaking community.  Realistically, the plaintiff may have
to come to terms in accepting his physical limitations and seek other
employment paying him less, but physically less demanding.  Assuming but for
the motor vehicle accident injury, he would have continued as a construction
worker until the age of 65, seven years.  I think a reasonable assessment of
his general overall marketability employment opportunity loss is two years of
his previous declared wages.  I realize this is a rough and ready estimate, but
also a useful and fair guide.  Accordingly, I fix loss of future employment
opportunity income at $40,000.

Special Damages

[19]        
This item was agreed between the parties to be $1,100.

Cost of Future Care

[20]        
The plaintiff’s last physiotherapist, Mr. Edward Wong, with whom the
plaintiff achieved the best reconditioning results, recommended a further
regime of 24 sessions plus further backup sessions, when needed, at an
estimated global cost of $2,000.  I think that is reasonable and fix this item
of damage at $2,000.

Conclusion

[21]        
The plaintiff is awarded the following damages:

1.     non-pecuniary,
$50,000;

2.     past wage
loss, $30,000 gross, subject to deduction of income tax;

3.     future
wage loss, $40,000;

4.     special
damages, $1,100;

5.     cost of
future care, $2,000;

Total, $123,100.  Court order
interest is available on applicable items.

[22]        
I will hear from counsel on the matter of costs.

[SUBMISSIONS RE COSTS]

[23]        
THE COURT:  It will go at double costs, then.

“Wong J.”