IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Faa v. Hardy, |
| 2014 BCSC 2302 |
Date: 20141205
Docket: M10082
Registry:
Campbell River
Between:
Tyson Faa
Plaintiff
And
Ruth Hardy and
Gordon Hardy
Defendants
Before:
The Honourable Mr. Justice Crawford
Reasons for Judgment
Counsel for the Plaintiff: | M.T Boulet K. Andres |
Counsel for the Defendants: | C.J. Cook |
Place and Date of Trial: | Campbell River, B.C. February 17 – 20, |
Place and Date of Judgment: | Campbell River, B.C. December 5, 2014 |
Introduction
[1]
Tyson Faa was injured in a motor vehicle accident that occurred on
December 4, 2009. Mr. Faa was a passenger in the vehicle of the defendant,
Ms. Hardy. The defendant made a left turn in front of an oncoming vehicle
and a substantial collision occurred, smashing the engine area of Ms. Hardys
vehicle. An airbag discharged and protected Mr. Faa.
[2]
Liability is not in issue. These reasons deal solely with quantum of
damage.
[3]
Mr. Faa seeks compensation for injuries sustained, namely, soft
tissue injuries to his neck, low back and right knee. He also seeks damages for
lost earnings, future lost earning capacity, and special damages.
Background
[4]
Mr. Faa was 23 at the time of the accident and 27 at the time of
trial.
[5]
His father, a teacher, had spent a good deal of time in Mr. Faas
childhood doing missionary work in China. Most of Mr. Faas early life until
his mid-teens was spent in China, save for Grade 6 and 7 in British Columbia.
[6]
It is evident that his parents were very active and encouraged their
children to participate in all sports.
[7]
For Grade 10, Mr. Faa was allowed to return to school in British
Columbia to live with friends from his church in Langley and play basketball,
and he did with sufficient ability to play on the school team in his Grade 11
and 12 years.
[8]
He was active in the church summer camps and made money berry picking.
[9]
His family returned to British Columbia a year later to the Maple Ridge
area. Mr. Faa said he continued berry picking in the summer. He also
picked up odd jobs from farmers and acted as a tour guide for Chinese visitors.
He started at Douglas College in the fall of 2004 and substantially completed
courses towards a business management diploma through 2005 and the winter of
2006.
[10]
In 2005-2006, he obtained employment at Future Shop/Best Buy in the
shipping department, and in 2006 and 2007 he worked at Starbucks and was
heavily involved in the youth groups at his church.
[11]
In 2008 and 2009 he worked for Bell Mobility sales four days a week. He then
began studying graphic design at Emily Carr, attending in the fall of 2008 and
the spring and summer of 2009. He completed a management certificate with
distinction in design essentials in the field of computer graphic design.
The Accident and Events Following the Accident
[12]
The accident occurred on the evening of December 4, 2009. Ms. Hardy
was an acquaintance of Mr. Faa affiliated with the same church and was
driving Mr. Faa back to the church. She did not see an oncoming motor
vehicle and turned in front of it. There was a very substantial collision with
the front of her car, the airbag opened in Mr. Faas face and he said his
knee hit the dashboard. Mr. Faa said he was jostled very hard, unlike
anything he had experienced before, and his body was twisted.
[13]
Emergency personnel were promptly on the scene. Ms. Hardy and Mr. Faa
were checked out and did not require medical services. He recalled he and Ms. Hardy
walking to the church as it was close by.
[14]
He said he felt sore all over and more so the next morning, December 5,
2009, and he went to a walk-in clinic. They assured him he would recover soon.
[15]
He then attended on Dr. Burns, his family doctor, on December 14,
2009. He was prescribed pain medications and physiotherapy. Mr. Faa said
he could not afford the physiotherapy and did not go at that time. He did get
physiotherapy in the spring of 2010.
[16]
As well, his family doctor recommended hot showers and stretching
exercises. He said after a time his headaches, the ringing in his ears, and his
neck pain subsided, but his low back and knees continued to hurt. Physiotherapy
focused on daily core exercises and he had 17 or 18 sessions in total,
including group sessions.
[17]
Mr. Faa said his doctor recommended a KARP program but he said ICBC
would not pay for it. He said the core exercises did help strengthen him but
otherwise the pain, soreness and stiffness continued in his low back.
[18]
With respect to his knee pain he said if he is not active he has no
difficulty, but going up and down stairs or active cardio training will give
him pain and pressure behind his knee cap. He said he continues to use a gym on
a regular basis in Japan and uses a treadmill or elliptical trainer to reduce
pressure on his knee. He can do the other exercises without complaint.
[19]
During part of 2010 he did security work related to the Olympic Games.
He said at this time he was also offered a job as a plumber. He heard the
plumber complaining of being constantly sore from digging trenches, installing
bathtubs and toilets and like work. He felt he could not handle the physical
demands of the job.
[20]
Instead he took a job at a Sears warehouse in summer 2010. He said he
had a $6,000 debt load from his schooling. The warehouse work involved
receiving goods, loading a dolly and pushing the goods to a bay for each store
and then loading the goods onto a trailer to go to the store. He said the goods
included heavy items like washing machines and fridges, but co-workers and
various kinds of machinery would help. He said the job was hard on my back.
[21]
Once he had his debt paid off he quit to pursue his interest in graphic
design by doing freelance work.
[22]
Examples of his work were shown to the Court: see Exhibit 5, documents 13-22.
[23]
As well he got another part-time job at a mineralogy firm in late 2011
washing and polishing mineral samples. He moved to Japan in August 2012.
[24]
His earnings reflected in his tax filings are as follows: 2006, $7,518;
2007, $11,286; 2008, $19,683; 2009, $19,097; 2010, $7,049; 2011, $8,159; 2012,
$14,879 (for seven months); 2013, $36,000.
[25]
Mr. Faa said prior to the accident he was actively engaged in his
church, singing in the band, mentoring other youth, and summer camp leadership.
[26]
He said after the accident in December 2009 he reduced his participation
in the band, his games and activities, but especially basketball and anything
of a more vigorous nature. He took on refereeing and management of activities
instead.
[27]
He said he met Ms. Li in Canada. There was a long distance
courtship before moving to Japan in August 2012. Ms. Lis parents live in
China.
[28]
He and Ms. Li were married in 2013 and he now works in Japan and
commutes an hour each way to work. He said plane rides and train rides are very
uncomfortable and make his knee sore. He continues to have low back pain which
occurs when he is sleeping and with other activities. He finds taking a hot
shower at night helps with his back soreness on waking in the morning.
[29]
He found work in Japan providing exercise programs for preschool
children and is now involved in management at an elementary childrens daycare.
However, his low back is a continuing issue for him.
[30]
As well he has continued his freelance website design work and makes
variable commissions of $100 – $3,000.
[31]
He testified he cannot sit for long periods and at work he has to keep
moving.
[32]
Mr. Faa indicated that he would like to return to Canada where his
parents have decided to settle.
[33]
He is also hopeful that his wifes parents will move to Canada but that
will depend on when he and Ms. Li choose to have children, Canada being
their preferred place to raise children. He feels there will also be a better
market for his design work.
[34]
He said he has made ¥300,000
yen a month or roughly $3,000 a month in his current employment, together with
a $500 bonus in 2012.
[35]
Shown pictures of a video he had made showing him riding a small motor
scooter, he said he had no difficulty riding it as the scooter had a platform
for his feet and he sat erect.
[36]
Mr. Faa was referred to a July 13, 2010 Twitter update where he
picked 272 pounds of blueberries today. He explained he had picked up to 420
lbs of berries prior to the accident, and was not able to pick berries on a
consistent basis in 2010.
Cross-Examination
[37]
He acknowledged he told Dr. Burns, his family doctor, on December 14,
2009 he had pain in his neck, back and right knee, but no x-rays or tests were
taken.
[38]
He agreed there was no record of a complaint regarding his right knee on
December 14, and he was prescribed physiotherapy but he did not attend.
[39]
He attended Dr. Burns again on January 26, 2010 with complaints of
neck and back pain after increased activity and again his doctor recommended
physiotherapy.
[40]
The physiotherapy records show five attendances in April and May of 2010
and 12 group sessions to the middle of June 2010.
[41]
He saw Dr. Burns again on August 9, 2010 and he was then exercising
at home. He told his doctor he was 85% of his pre-accident health.
[42]
Mr. Faa was very vague as to the KARP referral.
[43]
The last time he saw Dr. Burns was June 25, 2012 in preparation for
his trip to Japan. There was no mention of motor vehicle accident issues.
[44]
Mr. Faa agreed he had not made any request to ICBC to take a KARP
program. He agreed that on examination for discovery in November 2013 he rated his
ongoing pain at four to six on a scale of ten and more so if he was bending or
stooping.
[45]
On December 26, 2010 he and others had attended Boxing Day sales in
Vancouver. One of the stores offered prizes for those waiting in line who would
do some street dancing; Mr. Faa participated and was one of three winners.
[46]
A Halloween costume picture from October 2013 showed where Mr. Faa
created a Halloween costume where the figure has its head on a box in front of the
chest in the human shape, suggesting the head has been removed from the body. This
costume required Mr. Faa to bend forward and lean forward.
[47]
With respect to the yellow scooter pictures which could have been taken
in 2011 or 2012 it was put to him his posture would be painful, but he
disagreed saying he could sit with a straight back.
[48]
It was put to him that he had a curvature of the spine (kyphosis). He
denied there had been any medical assessment of this and it had not caused him
any pain or difficulty.
[49]
Asked if he had participated in the church summer camp games in 2010, he
said he did not participate in the games. Exhibit 16 shows Mr. Faa
announcing at the 2011 summer camp. He was holding a microphone in his hand. He
denied he was dancing in any real sense in the picture.
[50]
With respect to the dodgeball league, he agreed he organized it and
participated pre-accident but post-accident he simply refereed.
[51]
He agreed he saw Dr. van Rijn in January 2011 when he was working
at the Sears warehouse.
[52]
Dr. van Rijn, at page 9 of his report, suggested he receive spine mobilization
treatments but he did not. Dr. van Rijn also suggested he get a lumbar
support, or a TENS machine and he got neither.
[53]
He agreed pre-accident he was going to the gym three or four times a
week and was still doing so at the present time.
Ms. Li
[54]
Ms. Li gave her evidence by telephone from Japan. She said she had
met Mr. Faa while in Vancouver in August 2011 and subsequently they were
married in Japan in 2013.
[55]
She said Mr. Faa has ongoing difficulties with his back. Chinese
treatments for his pain have not been successful.
[56]
They started living together in mid-2013 and there were several trips to
see family in China and Taipei. She said Mr. Faa had difficulty sleeping
due to low back pain, and the floor mattresses or bedding did not help.
[57]
She has seen him in pain on their train commutes and more so towards the
end of each work week.
[58]
She has seen him in pain when he has been working at home on his design
work or helping with the house work i.e. vacuuming, or lifting heavy items at
the supermarket.
[59]
She said he had difficulty sleeping continuously at night. She now
prepares a hot bath for him three times a week and massages his back. She
believes he finds the work with small children very challenging. She said they
did plan to return to Canada in three years and she is hoping her parents will
move too.
Allan Faa
[60]
Allan Faa is the plaintiffs father. He is a teacher and spent 10 years
in China doing missionary work.
[61]
On his return to Canada in 2003 he had to take various jobs before
getting back to full-time teaching in the fall of 2006.
[62]
He did notice that Mr. Faa had difficulties post-accident with work
such as mowing the lawn.
[63]
On a house move he noted that where Mr. Faa used to help with heavy
lifting, he did no more than help unpack boxes.
[64]
He agreed Mr. Faa had been very active in sports and the whole
family was huggy. However, post-accident Mr. Faa has been noticeably
sensitive to body hugs.
[65]
He had seen Mr. Faa at times lie down on the floor after an
activity. He did not complain but to his eye, Mr. Faa was not back to his
pre-accident health.
[66]
He said Mr. Faa had not approached him to find any medical
treatments in 2010.
Mathew Nazzei
[67]
Mr. Nazzei was 23 years old at the time of the trial. He met Mr. Faa
in 2003 at church and they became close friends. He shot the dance video on the
Boxing Day sale in 2010. He said Mr. Faa was not Mr. Faa dancing all
out and that before the accident, he used to go to the ground doing the worm
or do the moon walk.
[68]
He played basketball with Mr. Faa before and after the accident. He
said Mr. Faa lost his form in 2010 and lost his jump shot. He would leave
games holding his back and this was a strong contrast to the pre-accident
competitor he was known as.
[69]
He noted a difference between Mr. Faa singing in the church rock
band and post-accident he stuck to the mic, and didnt jump around and
generally participated less.
[70]
He said they had a close group of friends and they would greet each
other with a hug but post-accident Mr. Faa would tense up and offer a hand
shake.
[71]
Mr. Nazzei said in many ways Mr. Faa became an old man in
the way he moved.
[72]
In cross-examination he agreed Mr. Faa played in the church summer
camp games but softly and not aggressively, not full contact as in previous
years.
[73]
At the games he described Mr. Faa as looking frustrated, in
discomfort and almost defeated, despite the fact that one of the games was
regarded as a high point in the camp activity.
[74]
In 2011 he said Mr. Faa only organized and refereed the camp
activities.
Medical Reports
[75]
Two medical reports were filed on behalf of the plaintiff.
[76]
The first from Dr. van Rijn was simply put into evidence and marked
as Exhibit 19. Dr. van Rijn saw Mr. Faa on January 27, 2011. He
concluded the accident of 2009 was responsible for Mr. Faas back pain
which was ongoing. Neck and shoulder symptoms were described as residual. With
respect to the right knee, the problems were described as intermittent
complaints relating to patellofemoral dysfunction.
[77]
Dr. van Rijn noted that the symptoms were still ongoing after 14
months, with the back pain the most troublesome complaint. He noted it was
aggravated by the work he was undertaking as would be the case in any
physically demanding job. As well there was pain at rest and during most static
activities. While he thought there was still a reasonable prospect for further
improvement, his prognosis was guarded.
[78]
He noted Mr. Faa reported his trouble doing the warehouse work (at the
Sears warehouse). He was not surprised that the warehouse job was causing
difficulty due to its physical nature. He believed Mr. Faas training and
interests would normally take him to a more sedentary work environment if not
for his financial obligations, and he recommended he seek out employment in a
less physically demanding job. He indicated Mr. Faa was remaining
symptomatic and his vocational prognosis was guarded.
[79]
In terms of care, he noted Mr. Faa was familiar with the stretches
and exercise routines that helped with the back symptoms. He indicated that a
lumbar support might assist with physically demanding work, that a TENS machine
might reduce pain, and over-the-counter pain killers could control the
symptoms.
[80]
Dr. van Rijn indicated x-rays and a possible CT scan might be
considered if Mr. Faas back was not substantially improved in the next
six to eight months.
[81]
A further report was provided by Dr. Stanley Leete after
consultation with Mr. Faa on July 25, 2012. Dr. Leete ordered an MRI
of the right knee. There was no finding of internal derangement and the
patellofemoral joint articular cartilage was well maintained.
[82]
He concluded there was discogenic damage of the lumbosacral spine and a
dashboard injury to the right knee that were a direct result of the motor
vehicle accident on December 4, 2009.
[83]
He felt it would be useful if Mr. Faa had a supervised exercise
regime for both his spine and knee. However, his prognosis for further recovery
was somewhat guarded.
[84]
Dr. Leete said in evidence that there was some straightening of the
lower lumbar spine on the x-rays and was evidence of a lower back disc injury.
[85]
As well he palpated fluid on the right knee joint which indicated right
knee damage consistent with a blow to the front of the right knee cap.
Defence
Ruth Hardy
[86]
Ms. Hardys recollection post-accident was that friends picked them
up from the scene of the accident, took them to the church, and then they went
to Tim Hortons and home that evening.
[87]
She saw Mr. Faa socially and at church until October 2010 when she
left the church. She said Mr. Faa said he was a bit sore initially after
the accident and a few weeks later complained his low back was sore and stiff.
In July 2010 he told her he had gone to physiotherapy and was about 85% better
and taking steps to be 100% better.
[88]
Later she recalled he said the physiotherapy was not as effective as he
would like.
[89]
She said Mr. Faa seemed to continue to lead the church band as
actively as ever.
[90]
At the summer camp in 2010 she said Mr. Faa was active and as
competitive as he had always been, fighting for tubes in the tube game. She
said he was a team leader and did not seem to be in any discomfort.
[91]
She attended his birthday in May 2010 and her recollection was that Mr. Faa
was his normal self socially and dancing without discomfort.
[92]
She recalled him driving a scooter in 2011.
[93]
She agreed that Mr. Faa refereed the summer dodge ball tournament.
[94]
She was at the Boxing Day sale in December 2010 when Mr. Faa danced
for the free jean contest. She said Mr. Faa was in no discomfort and the
video was accurate.
[95]
In cross-examination she agreed she did not know if Mr. Faa was in
any pain at the 2010 summer camp and that she had not seen him throughout the
whole of the games.
[96]
She had not seen Mr. Faa dance the worm.
[97]
She agreed Mr. Nazzei and Mr. Faa would spend more time
together than she with Mr. Faa.
Arguments
Plaintiff
[98]
Counsel submitted the initial injuries were to the neck, low back, knee
and accompanying headaches.
[99]
It was submitted that Mr. Faa could still do many activities but
was limited by his back pain and stiffness, so he was obliged to weigh the
effect of that on any activities. It was submitted there was no controversy in
the medical findings as to low back pain which was put by Dr. Leete as
discogenic damage and right knee injury. Mr. Faas ongoing discomfort was
still noticeable at trial.
[100] Dr. van
Rijns prognosis at 14 months and the fact that the back pain was still ongoing
at trial leads to a conclusion that the back pain would be permanent. Dr. van
Rijn had noted his occupational restrictions and that Mr. Faa would be
advised to have a sedentary job.
[101] Mr. Faa
has ongoing needs in terms of exercise and stretching. Dr. Leete has
suggested a supervised exercise regime.
[102] There was
evidence from his father and Mr. Nazzei as to Mr. Faas withdrawal
from physical involvement even to the extent of a welcoming hug from friends
and family.
[103] Although
the physiotherapy treatment had not been consistent, Dr. van Rijn has
indicated there was no ongoing need for it.
[104] Counsel
referred to a number of cases (Pett v. Pett, 2009 BCCA 232; Shafer v.
Whiteley, 2013 BCSC 225; Rahn v. Suran, 2010 BCSC 793; and Cumpstone
v. Johnson, 2012 BCSC 386) to suggest a general damage award of $65,000.
[105] As to the
argument that there was a failure to mitigate, the onus was on the defendant
but in no way could it be said the plaintiff had acted unreasonably. There was
no evidence at all as to what injuries might have been diminished or alleviated
to support any argument from the defendant.
[106] With
respect to loss of future earnings, it was submitted that Mr. Faa would
not be able to participate in any heavy physical activity and therefore was
entitled to a loss of future earning capacity award.
[107] With
respect to the lost opportunities it was argued that Mr. Faa had been
offered a plumbing job post-accident in May 2010 but had said the plumber
voiced issues as to the job difficulties and persuaded him it would be too
difficult for him.
[108] In 2007
and 2008 Mr. Faa made $11,286 and $19,638 from labouring work between
school terms. He was in school the whole of 2009.
[109] It was
submitted that had Mr. Faa been working at $15 per hour since May 2010 to
August 2013 he would have made $70,200. As it was he took the Sears warehouse
job in September 2010 until summer 2011.
[110] His
earnings in 2010 were $7,049; in 2011, $8,159; and in 2012, $19,880 which
earnings total $35,088.71. Thus a claim for past lost earnings in the amount of
$35,111.29 was submitted.
Defence
[111] The
defendant submitted the plaintiff was not credible and inconsistent in his
evidence.
[112] There was
little or no complaint to Dr. Burns about his knees.
[113] The
plaintiff was not correct in suggesting that ICBC had declined KARP
rehabilitation.
[114] It was
submitted that Mr. Faa was able to dance during 2010 and at the Boxing Day
sale he did not seem to lack in fluency. Ms. Hardys evidence was that
there was no demonstrated injury at the scene, she saw little change in him
during the 2010 year in terms of his band, dance, and games activities, and he
had commented to her that he was 85% better after physiotherapy.
[115] It was
submitted Mr. Faa failed to get physiotherapy as recommended immediately
after the accident, and had only taken physiotherapy in April and May of 2010
and then only for some 17 sessions.
[116] The note
of July 11, 2010 of picking 270 pounds of berries in a day seemed anomalous in
regards to the reported injuries.
[117] His
ongoing work with small children means he has to bend a great deal with his
little charges as exemplified in some of the pictures in Exhibit 14.
[118] As to the
suggestion he could not do the plumber job in May 2010; that was contradicted
by his working at the Sears warehouse and the blueberry picking.
[119] The
doctors had not referred to chronic pain with respect to Mr. Faa and
therefore there was a question as to the permanency of the condition. Dr. Leete
found a full range of motion in Mr. Faas spine and no MRI evidence of
knee damage.
[120] In the
defendants submission it was a minor soft tissue injury case worth perhaps
$15,000 and there was no other head of damage.
Plaintiffs Reply
[121] Reference
was made to Dr. Leetes evidence as to Mr. Faas ongoing pain and his
opinion that the longer the ongoing medical condition, the less chance of full
recovery. Mr. Nazzeis evidence was to be preferred to Ms. Hardys as
he knew Mr. Faa better. In terms of the case law references of the
defendant, it was submitted they were relatively short term injuries in
contrast to the plaintiffs case law.
Discussion and Conclusion
[122] Viewing
the pictures of the accident makes it apparent that there were substantial
forces involved for the passenger in Ms. Hardys vehicle.
[123] At the
time, Mr. Faa was an active, hardworking, and a valuable member of his
church, enjoying his participation in activities, particularly basketball.
[124] It is
evident from his pictures that Mr. Faa was relatively lightly built. There
is little musculature on his arms and legs and less so in the more recent
pictures, a reflection of his less active status.
[125] Mr. Faa
points to his less active status being principally caused by his ongoing low
back pain. There is medical evidence in support of ongoing lower back pain and
the observations of Mr. Nazzei, his father, and Ms. Li all
substantiate that he is having ongoing problems with his low back. On the other
hand, neither doctor used the term chronic in describing his back condition.
[126] With
regards to general damages, there is no medical basis for the defendants
argument about kyphosis being a factor. What is less apparent on the medical
information is the nature and extent of the right knee injury, although there
appears to have been some damage behind the patella which on occasion can be of
discomfort.
[127] I have
reviewed the plaintiffs cases and the defendants cases. The defendants
argument that the plaintiffs cases reflect more serious injuries is in my view
accurate. As well, the evidence does appear to be that Mr. Faa continued
on with many of his activities in the summer of 2010. The pictures of him at
social events and dancing as well as the berry picking all indicate an ongoing
ability to deal with his motor vehicle injuries.
[128] It would
be fair to say that the neck pain and headaches had largely dissipated by the
time he saw Dr. van Rijn in January 2011.
[129] However,
it is also evident that he was not able to continue on with any more
competitive basketball, that he switched to refereeing dodge ball, and he gave
up the warehouse job as soon as his debt load was retired in 2011.
[130] With
regards to employment opportunities, I do find that in 2010 his ability to work
in a labour intensive job was compromised to some degree. The warehouse job was
dry and had mechanical aids. The issue raised by the suggestion of work in the plumbing
industry, which I note is based on hearsay, is whether Mr. Faa would have
taken on a job that Dr. van Rijn noted would not be in his field of interest.
However, Dr. van Rijn said the warehouse job was not suitable for Mr. Faa
as well, given the back injury he diagnosed in January 2011. Thus I find there
is a basis for an award of past lost earnings.
[131] Given both
his physical and mental attributes, I am of the view that in the long term he
would not have taken a labouring job such as plumbing and that his own abilities
appear to be in childhood recreation and graphic design. Dr. van Rijn noted his
training and interests would lead to a sedentary occupation. With his current
employment in childhood recreation he appears to be able to lead, manage, and
participate in small childrens activities while he develops his ongoing
interest in computer design work.
[132] I have
considered the leading case on future lost earnings that the plaintiff
submitted, Perren v. Lalari, 2010 BCCA 140, which stipulates that a
plaintiff must always prove that there is a real and substantial possibility of
a future event leading to an income loss. The future lost earnings claim does
not lie in any predictable loss of employment per se but rather in the
fact that Mr. Faa has seen a sector of physical employment removed from
his economic repertoire. I find that to be a real and substantial possibility, and
to that degree he is entitled to some recompense.
[133] Consequently
I award the following:
1. General damages –
$37,500;
2. Past lost earnings –
$10,000;
2. Lost future earning
capacity – $35,000;
[134] I do not
recall any evidence as to a claim for special damages. A fitness membership
agreement was on the documentation. It was not tendered.
[135] Unless
there is argument to the contrary, the plaintiff is entitled to his costs.
The
Honourable Mr. Justice Crawford