IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140527

Docket: M123980

Registry:
Vancouver

Between:

Jun Feng Yang

Plaintiff

And

Sara Michelle
Fitzsimmons

and Wendy Lee
Fitzsimmons

Defendants

Docket: M123977

Registry:
Vancouver

Between:

Jun Feng Yang

Plaintiff

And

Hao Yang Li

Defendant

Before:
The Honourable Mr. Justice Silverman

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff sues for damages arising out of two motor vehicle
accidents ("MVAs") involving different defendants.

[2]            
The first accident ("first MVA" or "MVA #1")
occurred on December 21, 2010.  The second accident ("second MVA" or
"MVA # 2") occurred approximately three months after the first
one, March 11, 2011.

[3]            
In both MVAs, the defendants admit liability.

[4]            
It is common ground that the first MVA and the damages arising from it
were minor.  The second MVA was more substantial.

[5]            
The primary issues in dispute in this trial are:

1.       the
extent and the effect of the plaintiff’s damages after the second MVA;

2.       the
extent and the effect of the plaintiff’s pre-existing injuries;

3.       the
credibility and reliability of the witnesses.

[6]            
The plaintiff claims damages in the following categories:

1.       non-pecuniary
damages;

2.       past
income loss;

3.       special damages;

4.       future care.

[7]            
There is no claim for lost earning capacity or future wage loss.

THE TWO MVAs

[8]            
The plaintiff is a courier.  The first MVA occurred when he was in his
work truck in a parking lot at a mall.  He was moving boxes in the back of the
truck when he felt the truck and his body shake as a result of a car being
driven by one of the defendants backing into the truck.  He did not fall.

[9]            
The second MVA occurred when the plaintiff was travelling straight
through a major intersection and was struck by a vehicle being driven by one of
the defendants making a left turn.  His airbags deployed.

CONSEQUENCES OF THE FIRST
MVA

[10]        
After the first MVA, the plaintiff testified that he felt a pulling pain
in his right low back.  He described it as "not too bad" and that it
subsequently affected his work and life "a little bit".

[11]        
The plaintiff’s family doctor, Dr. Lee, diagnosed the plaintiff
with acute musculo-tendonous strain of the right lower back. It caused the
plaintiff a mild degree of stiffness, including back discomfort which did not
have much effect on his overall activities and work.  His injuries lasted a
couple of weeks, and the plaintiff had fully recovered by the time of the second
MVA in March 2011.

[12]        
The plaintiff testified that he missed three days of work.  There is no
documentary evidence supporting this claim.

CONSEQUENCES OF THE SECOND
MVA

[13]        
The plaintiff was taken by ambulance on a stretcher to the hospital.  He
recalls having difficulty breathing and wearing an oxygen mask.

[14]        
He testified that he felt nausea, nervous, shock, difficulty breathing,
dizziness, chest pain, upper back, right shoulder and neck pain, right low back
pain, right leg numbness and tingling, sleep disruption, and "mental
pain".  He testified that he, subsequently, experienced these symptoms
constantly, but that the pain intensity is now lower than it was.

[15]        
Dr. Lee initially diagnosed the plaintiff with musculo-tendonous
strain mainly affecting the head, neck, upper/mid-back, right foot/ankle and
left shoulder/areas.  He also opined that the plaintiff suffered from mild
post-concussion syndrome.

[16]        
The plaintiff testified that Dr. Lee told him to take time off
work.  He could not remember if it was six months or 12, but he remembered
increasing his work hours gradually to the end of 2011.

[17]        
After returning to work, he had to pace himself.  He had difficulty
driving long distances, which was sometimes a work requirement.  He would have
to take short breaks often and stretch twice a day.  He also could not lift
heavier packages and would have to seek help from customers or have the
delivery assigned to another driver.

[18]        
He testified that he is now basically back to work but still needs help
sometimes.  He has also applied to a different terminal servicing a smaller
area so that he does not have to drive longer distances.

[19]        
He testified that his pre-MVA recreational activities consisted of
hunting and hiking on a frequent basis.  He has not returned to hunting, and
while he has attempted hiking, he cannot do it as well or for as long as he
could before the MVA.

[20]        
He, and his wife, testified that prior to the MVA, he performed all of
the household chores.  His wife had recently arrived from China and was without
experience at household chores.  She now does all of them now except for
vacuuming, for which he bought an iRobot vacuum cleaner.

[21]        
He attended for physiotherapy starting March 18, 2011.  On April 11,
2011, his physiotherapist suggested another 12 sessions.  Mr. Yang did not
pursue this.  The defendants claim a failure to mitigate.

[22]        
He saw a chiropractor from September 26, 2011 to March 8, 2012.  In the
discharge report of May 2, 2012, there were no back or shoulder or neck
complaints.  The remaining complaint was intermittent right leg pain.  It also
stated that his prognosis was good to fair.

[23]        
The plaintiff saw Dr. Lee regularly after the second MVA.  Ultimately,
he diagnosed injuries including neck, upper/mid-back, and left shoulder and
arm, as well as anxiety and post-concussion syndrome.  He also diagnosed him
with fibromyalgia, and testified that, in his opinion, the plaintiff continues
to suffer from this.

[24]        
Dr. Lee advised the plaintiff to obtain a gym/swimming pass.  The
plaintiff did not do so, and the defendants claim a failure to mitigate.

[25]        
Dr. Lee’s prognosis is good recovery.

[26]        
Dr. Froh saw the plaintiff once for the purpose of preparing an
independent medical examination.  He did not diagnose the plaintiff with
fibromyalgia.  He diagnosed the plaintiff with the following injuries as a
result of either the second MVA and/or a combination of the first and second MVA:

1.       soft
tissue injury to the cervical spine;

2.       tenderness
over the rhomboid and levator scapulae muscles;

3.       mechanical
low back pain referable to the right SI joint;

4.       a possible
seatbelt injury to the anterior chest and sternum.

[27]        
Dr. Froh does not opine that any of the foregoing injuries were
caused by any pre-existing problem.

[28]        
He was of the view that the plaintiff had normal shoulder range of
motion, full rotator cuff power with no pain and good muscle stability, and no
muscle wasting.  He was of the opinion that the plaintiff’s right leg, right
foot and left ankle pain are not related to the MVAs.  He expressed the opinion
that the plaintiff is able to do his job without restrictions and that his
shoulders are normal and resolved.  He testified that the prognosis was good,
that there were no objective signs noted, and that imaging scans did not show
anything.

[29]        
Dr. Froh opines that the plaintiff is not disabled at this point
and is perfectly capable of doing his job as a courier and any recreational or
vocational activity.

WAGE LOSS AFTER THE SECOND
MVA

[30]        
The parties are agreed that the plaintiff missed time from his
employment after MVA #2, however they are not agreed as to how much of that
time was the result of MVA #2.  The agreed total time missed and resulting lost
income was as follows:

[31]        
Counsel are agreed that the above figures represent “net value” of the
income loss.

[32]        
The plaintiff claims that the entirety of the missed time, and therefore
of the $16,655.00 is attributable to MVA #2 and therefore is his wage loss as a
result.  The defendants argue that work missed as a result of the MVA did not
extend beyond June 24, 2011, and therefore the total wage loss is $7,860.13.

[33]        
The plaintiff argues as follows:

1.       Dr. Lee
testified that the time taken off work by the plaintiff was reasonable.

2.       There is no
medical opinion from any person, including the doctors relied upon by the
defendants, suggesting that the time missed by the plaintiff was due to
anything other than the second MVA.

[34]        
The defendants argue as follows:

1.       The
plaintiff has a pre-MVA history of taking time off work, ostensibly as the
result of accidents.  He does not have a strong work ethic.  He is a
malingerer.

2.       A
2009 work-related MVA caused similar injuries, which resulted in significant
periods of time off work.

3.       Dr. Lee
suggested that a normal period of time off work for such injuries is one to two
weeks.  However, he noted that every person reacts differently, and he simply accepted
the plaintiff’s subjective comments about the effect that the injuries were
having on him.

4.       Dr. Yu
suggested that the plaintiff carry on with his work.

5.       Dr.
Froh testified that the expected period of time off work would be six to 12
weeks.

6.       Dr. Froh
stated in his report that the plaintiff was not disabled at the time he met
him.

PRE-MVA HISTORY

[35]        
On September 9, 2009, the plaintiff was involved in a work-related MVA. 
He had injuries to his neck and upper back.  He testified that he thinks he was
off work as a result.  He thinks he was on modified duties when he returned to
work.

[36]        
After the 2009 MVA, the plaintiff saw a chiropractor "lots of
times" and also attended at Oasis Physiotherapy.

[37]        
He recalled going to a pain clinic in the fall of 2010.  He said he
always had pain before attending the pain clinic.

[38]        
Work records indicate that after the September 2009 accident the
plaintiff was off work from September 17, 2009 to October 8, 2009, returning to
modified duties on October 13, 2009, and full duties on December 14, 2009.

[39]        
He was also off work from July 6 to 13, 2010.

[40]        
In August 2010, the plaintiff began a series of attendances at a chiropractor. 
On August 31, 2010, he described his pain in his shoulder and low back in a
manner which satisfies me that it was then, in his mind, of approximately the
same intensity as it was on April 15, 2011 (after he finished a series of
physiotherapy treatments after MVA #2).

[41]        
The plaintiff attended a work conditioning program at Orion Health from
October to December 2010.  The intake report of October 20, 2010 states that
the injury was due to "back, multiple regions".  It indicated that he
said he had re-injured himself in May, July and August 2010.  He received
acupuncture, chiropractor and physiotherapy treatments.

[42]        
He was discharged from Orion Health on December 10, 2010, 11 days before
MVA #1.

[43]        
In cross-examination, he testified that after his discharge, he still
had upper back pain and those symptoms lasted a few weeks further.

[44]        
In direct examination, he testified that in the one to two months before
the first MVA on December 21, 2010, he felt "very good", "normal"
and "lived normally".

[45]        
Dr. Lee testified that the plaintiff told him he was fine before MVA
#1.

[46]        
In the 15 months before the first MVA, the plaintiff was prescribed
Tylenol 3, Celebrex and Nortriptyline.

[47]        
Dr. Lee opined that, prior to the subject MVAs, the plaintiff did
not have any chronic long-standing musculoskeletal complaints or mood-related
disorders.

CAUSATION

[48]        
The parties are agreed that the appropriate test is the "but-for"
test.

[49]        
The plaintiff argues that "but-for" the second MVA, the
plaintiff would not have had the pain and suffering he had after March 11,
2011, nor the wage loss and other damages suffered.  The defence agrees that
the "but-for" test is the appropriate test, but argues that neither
the first nor the second MVA resulted in the injuries or wage loss that the
plaintiff claims.  Consequently, the plaintiff has failed to establish that
"but for" one or both of the MVAs he would not have suffered the
injuries and damages that he claims.

MITIGATION

[50]        
The defendants argue that the plaintiff has failed to mitigate.

[51]        
They argue as follows:

1.       The
plaintiff attended physiotherapy after the second MVA.  In April 2011, the
physiotherapist suggested another 12 sessions.  The plaintiff agreed that the
earlier treatments helped a little bit.  However, he did not seek the further
physiotherapy treatments, which had been suggested.  The defendants argue that
this is a failure to mitigate.

2.       Dr. Lee
advised the plaintiff to obtain a gym/swimming pass for swimming, aquatic
exercises and weights.  Dr. Lee testified that these recommendations were
made so that the plaintiff could recover faster, and that if he did not do them
it would take longer.  There is no evidence that he did any of the recommended
things.  The defence argues that this is a failure to mitigate.

3.       Dr. Froh
also recommended swimming.  Dr. Lee testified that it was more effective
than physical therapy.

4.       The defence
argues that all of the foregoing is a failure to mitigate.

[52]        
The plaintiff argues as follows:

1.       The
plaintiff has undergone chiropractic, massage, physiotherapy, acupuncture, and
Chinese herbal medicine treatments.

2.       Dr. Lee
testified that the plaintiff has been taking his medication, doing home
exercises, and sometimes doing physical therapy, but that "the time
factor" is an important factor for him so that he has not been doing as
much as Dr. Lee wanted him to do.

3.       Dr. Lee
testified that "the time factor", in his understanding, was a
function of the plaintiff being too tired after his work and his family
responsibilities to do the recommended activities to the extent that the doctor
hoped he could.

4.       The defendants
have failed to prove that the plaintiff was unreasonable in not doing physical
therapy as often as the various medical professionals would have preferred.

CREDIBILITY AND
RELIABILITY

[53]        
The plaintiff argues as follows:

1.       The
plaintiff was consistent and credible in the giving of his evidence.

2.       His
evidence was consistent with and supported by the evidence of his wife.

3.       His
evidence was consistent with and supported by the evidence of Dr. Lee who
has known him longer than any other doctor involved in the case, and has seen
him more times than any other doctor involved in the case.

4.       Dr. Froh’s
opinions should not be accepted over those of Dr. Lee for a number of
reasons, including:

(a)      he
only saw the plaintiff once;

(b)      he
was unaware of a great deal of important background information because he did
not ask the plaintiff a number of important questions, including:

i.        what
kind of home the plaintiff lived in;

ii.        who
he lived with before and after the accidents;

iii.       what
the division of household tasks were before and after the accident;

iv.       how
often he participated in recreational activities;

v.       various
details about his work.

(c)      Dr. Froh
concedes that the plaintiff might have additional aching or discomfort as a
result of demanding recreational or household activities but suggests that he
would not be doing himself any harm, and he should simply take an Advil and
continue doing the task in question.  Nevertheless, he concedes that there was
still some limitation to performing various activities.

[54]        
The defendants argue as follows:

1.       The
testimony of Dr. Lee is suspect.  He is clearly a biased advocate for the
plaintiff.  He accepted as true everything that the plaintiff told him even
where it is inconsistent with his own chart notes and those of other doctors
and the Orion discharge report.  His evidence, therefore, does not corroborate
that of the plaintiff.

2.       The
plaintiff would see different health professionals after each of his prior
medical incidents, including the two most recent incidents.  The defendants
suggest this is so that they would be unaware of his prior history.

3.       Dr. Lee
selectively chooses information that benefits his patient.  He has chosen to
take his patient’s word at face value, even where there are clear records in
his file suggesting major contradictions, including:

a.       in
his report, he mentions a remote injury in 2005, but neglects to mention the
plaintiff’s problems from his 2009 MVA (although it is in his records) saying
that the plaintiff did not have any past musculoskeletal injuries before the
subject MVAs, nor any musculoskeletal symptoms at the time of the MVAs;

b.       he
does not mention in his report the time taken off work by the plaintiff after
the 2009 MVA, or the time taken off to attend a pain clinic in 2010, although
he admits in his testimony that he was aware the time was taken off work after
the 2009 MVA;

c.       when
confronted with the medications the plaintiff had taken in the year before the
accident, he responded by saying that most people would have taken medications
in the last ten years.

4.       Dr. Lee’s
diagnosis of anxiety and post-concussion syndrome involve subjective complaints
only.  He acknowledges that he did not use scoring scales or any standardized
tests.

5.       Dr. Froh’s
opinions should be accepted over those of Dr. Lee.  He is clearly not an
advocate for the other side.

6.       None
of the doctors, including Dr. Lee or Dr. Froh noted any objective signs
of any of the injuries claimed by the plaintiff.

7.       The
plaintiff’s lack of recall of many essential items diminishes his credibility.

SPECIAL DAMAGES

[55]        
The plaintiff argues that he has incurred the following special damages
as a result of the two MVAs:

[56]        
The defendants argue that:

1.       There
should be no reimbursement for any expenses after the date of Dr. Froh’s
first report except for chiropractic expenses, which Dr. Froh opined was
appropriate for flare-ups but not for maintenance.

2.       The
plaintiff is not entitled to be reimbursed for Yi Rain Town Chinese medicine of
$120.

3.       The
plaintiff is not entitled to be reimbursed for treatment for BonaLife in the
amount of $1,020.

4.       Therefore, the
special damages for which the plaintiff should be reimbursed is only $2,540.90.

FUTURE CARE

[57]        
The plaintiff argues as follows:

1.       Dr. Lee
recommended that the plaintiff be provided with single-visit tickets so he can
do swimming and gym exercises.

2.       Dr. Froh
recommended that the plaintiff do a regular core strengthening exercises
routine and increase his activities of walking, cycling and swimming.  He also
recommended chiropractic manipulations for acute flare-ups.

3.       The plaintiff
claims $1,500 for cost of future care of the foregoing.

[58]        
The defendants argue as follows:

1.       The
plaintiff has not met the burden of proof in establishing he needs any future
care as a result of injuries from these accidents.

2.       Dr. Froh
sees no need for any ongoing treatment to manage symptoms, neither did
Dr. Yu.

3.       Dr. Lee
says that the plaintiff has no time for therapies but he does home exercises. 
He testified that the plaintiff has declined to go swimming or to the gym
because he simply does not have enough time between his work activities and his
family responsibilities.

4.       Therefore the award under
this heading should be zero.

CONCLUSIONS

  General

[59]        
I agree with the submission of the defendants that the credibility of
the plaintiff leaves much to be desired.

[60]        
His own testimony, together with the evidence of his pre-history
difficulties and the evidence of Dr. Froh leads to the strength of the plaintiff’s
case being diminished.

[61]        
While I accept the evidence and opinions of Dr. Lee as honestly and
sincerely held, I agree with the defendants that, to some extent, he is
unconsciously motivated by a partial bias in favour of his client.  With
respect to the areas where he and Dr. Froh disagree, I generally prefer
the evidence of Dr. Froh.

[62]        
On the other hand, I do not utterly reject the claims of the plaintiff,
or the evidence of Dr. Lee.  I am not of the view that he was without injury as
a result of MVA #2; rather, he was injured to a lesser extent, and with less
severe consequences, than he claims he was.

[63]        
I am satisfied that the plaintiff’s injuries and damages after both MVAs
would not have occurred “but for” the two MVAs.  However, I am not satisfied
that the extent of those injuries and damages are as great as the plaintiff
claims they are.

[64]        
The burden is on the defendants to establish that the plaintiff has
failed to mitigate his damages.  In my view, the evidence fails to meet that
burden.  I am not satisfied that the plaintiff has failed to mitigate.

Non-Pecuniary Damages

[65]        
The plaintiff claims that an award under this heading, including the
loss of housekeeping capacity should be in the amount of $50,000 to $60,000. 
In that regard, the plaintiff relies upon a number of court decisions involving
similar injuries which support the amount claimed.

[66]        
The defendants argue that an appropriate award should $25,000 to
$30,000.  In that regard, the defendants rely upon a number of court decisions
involving similar injuries which support the amount claimed.

[67]        
In view of all of the foregoing, and the submissions of counsel, I award
non-pecuniary damages, including damages for loss of housekeeping, in the
amount of $35,000.

  Past Wage Loss

[68]        
The plaintiff argues that he should receive an award for three lost days
of work after MVA #1, and for the entire amount of $16,655 for lost work after
MVA #2 until December 28, 2011.

[69]        
The defendants argue that his wage loss after MVA #2 should include the
period of time only to June 24, 2011, and therefore be in the amount of
$7,860.13.

[70]        
With respect to the first MVA, I am not satisfied that the three days
taken off work by the plaintiff were the result of the MVA.  I decline to order
any wage loss arising out of MVA #1.

[71]        
I am satisfied that the appropriate period of time off work attributable
to MVA #2 is six months.  In that regard, I note that Dr. Froh writes the
following in his report:

This
patient does, however, work as a courier and, given the type of job that he has
including the mix of sitting, standing, walking, bending, and lifting, then
time off work up to roughly six months might be appropriate.

[72]        
Therefore, the plaintiff will be entitled to his lost wages from March 14,
2011 to September 10, 2011.

[73]        
It follows that the plaintiff will be entitled to the total $7,860.13
(for the period March 14 to June 24), and a pro-rated portion of $7,598.13
(which is the loss from June 27, 2011 to October 26, 2011). That pro-rated
portion from June 27, 2011 to September 10, 2011, is $4,707.

[74]        
The total loss from March 11, 2011 to September 10, 2011, is therefore $12,567.13,
comprised of $7,860.13 (for the period March 14 to June 24), and $4,707 (for
the period June 27, 2011, to September 10, 2011).

Special Damages

[75]        
I agree with the defendants that the plaintiff’s claim for the following
expenses have not been proven to be a result of, or necessary as a result of,
the MVAs:

Yi Rain Town Chinese Medicine                                 $120.00

BonaLife Acupuncture &
Herbal Medicine Clinic $1,020.00

Total:
$1,140.00

[76]        
I am satisfied that the balance of the special damages are properly
recoverable.  Therefore, the award for special damages is $2,805.90.

Future Care

[77]        
I am satisfied that the plaintiff should be reimbursed for single visit
tickets to go swimming or to the gym, even though he has not yet pursued that
as diligently as he should.  I am satisfied that he will do so in the future to
some extent that will benefit him.

[78]        
I am also satisfied that he may need to attend for chiropractic
manipulations for acute flare-ups as suggested by Dr. Froh.

[79]        
I agree with the plaintiff that Dr. Froh also recommended regular core strengthening
exercises and increase in activities of walking, cycling and swimming. 
However, his recommendation was that those could all be performed at home at no
expense.

[80]        
Finally, there is little evidence as to what swimming pool, gym, and
occasional chiropractic visits might cost.  Therefore, it is impossible for the
plaintiff’s claim in the amount of $1,500 to be awarded.

[81]        
I am satisfied that an award in the amount of $500 is appropriate.

SUMMARY OF DAMAGES AWARDED

[82]        
The damages are summarized as follows:

Non-pecuniary damages –                      $35,000.00

Past wage loss –                                    $12,567.13

Special damages –                                 $2,805.90

Future care – $500.00

Total:                                                   $50,873.03

[83]        
Both counsel are of the view that the amount of damages from both MVAs
should be awarded globally and that it is not necessary for me to attribute any
portion of the damages to either MVA #1 or MVA #2.  In that regard, I note that
defence counsel was acting for all defendants in both actions.

[84]        
I accept that.  Nevertheless, I consider it prudent to specify that, if
it is necessary for such a division to be made, 10% of the award for
non-pecuniary damages is attributable to MVA #1, and 90% to MVA #2.  All of the
other damages are attributable to MVA #2 only.

“Silverman J.”

_______________________________

The
Honourable Mr. Justice Silverman