IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Mir Tabatabaei v. Kular, |
| 2015 BCSC 295 |
Date: 20150226
Docket: M123426
Registry:
Vancouver
Between:
Hamid Reza Mir
Tabatabaei
Plaintiff
And
Karanvir Kular
Kaur Jagjit Kular
Defendants
Before:
The Honourable Madam Justice Duncan
Reasons for Judgment
Counsel for the Plaintiff: | M.D.C. Fahey |
Counsel for the Defendants: | D.M. De Baie |
Place and Dates of Trial: | Vancouver, B.C. October 14-17, 2014 |
Place and Date of Judgment: | Vancouver, B.C. February 26, 2015 |
Table of Contents
The Plaintiffs Condition after the
Accident. 8
The Plaintiffs Financial
Circumstances. 10
The Plaintiffs Accountant. 11
The Plaintiffs Orthopedic Expert,
Dr. Tarazi 12
Functional Capacity Evaluation by
Dominic Shew.. 14
The Defence Orthopedic Expert,
Dr. Goel 15
The Defence Addiction Specialist,
Dr. Sobey. 15
Dr. David Tsung from the
Methadone Clinic. 15
Credibility and Reliability of Lay
Witnesses. 16
Credibility and Reliability of Expert
Witnesses. 17
Loss of Future Earning Capacity. 21
Introduction
[1]
The plaintiff, Hamid Reza Mir Tabatabaei, was involved in a motor
vehicle accident on July 9, 2010 as he was driving to his home in North
Vancouver. He suffered injuries to his neck and shoulder which he maintains
continue to negatively affect him in his work as a carpet cleaner and in his
leisure activities.
[2]
Liability is admitted. The plaintiffs orthopedic surgeon, Dr. Tarazi,
and the defendants orthopedic surgeon, Dr. Goel, both diagnosed the
plaintiff with right shoulder rotator cuff syndrome and myofascial pain in his
cervical spine resulting from the accident. The issues at trial concerned the
plaintiffs entitlement to damages, in particular his loss of capacity to earn
income and whether he has failed to mitigate by refusing to undergo surgery on
his injured shoulder.
Background
[3]
The plaintiff is 53 years of age. He was born in Iran and achieved a
grade nine education there in 1974 or 1975. He served in the army for three
years during armed conflict with neighbouring Iraq. After the plaintiff left
the army, in 1983 or thereabouts, he got a job as a driver. He married and his
daughter was born in 1986. The plaintiff left Iran and arrived in Canada under
refugee status. One of his sisters lived in Toronto. He expected his wife to
follow him once he got settled but he lost contact with her for a number of
years. They ultimately divorced.
[4]
Once in Canada the plaintiff quickly obtained employment in Hamilton,
first as a dishwasher, then as a cook. In late 1996 or early 1997 he relocated
to Vancouver. Along the way he learned English. While he did not testify with
the assistance of an interpreter, it is clear English is still a second
language for him.
[5]
Once in Vancouver the plaintiff worked as a cook for a year and a half.
It was a night shift job and he grew tired of the late hours. His friend, Ali,
told him about carpet cleaning so he tried it and found he liked the job and
was good at it. After a month of training with Eatons carpet cleaning the
plaintiff was provided with a truck and went to work.
[6]
Eatons ceased operations approximately 18 months after the plaintiff
started working for the company. He worked briefly for another company then
teamed up with a former colleague from Eatons. They opened a business under
the name Eatons West, which is still the plaintiffs company name.
[7]
Eatons West was initially quite successful. The plaintiff estimated
gross revenues between 2003 and 2007 were close to $800,000 per year; however,
as discussed later in these reasons, the plaintiffs knowledge and memory of
his finances is not particularly reliable and these amounts do not accord with
his accountants records.
[8]
The companys fortunes changed when the plaintiffs partner developed a
substance abuse problem. The plaintiff said his partner stole the plaintiffs
customer list and tried to sell back to him. The plaintiff learned his
employees were taking cash for jobs and not reporting the payments to him. A
customer complained a watch had gone missing. The employees did not take care
of the company vans, causing serious engine trouble. The plaintiff concluded it
was easier to work by himself so he let his employees go, sold his vans and
from about 2008 onwards worked for himself.
[9]
Once on his own the plaintiff had an employee, Kim, who contacted
customers to book jobs and he occasionally employed his friend Tony Discon to
assist on bigger jobs. The plaintiff relied primarily on repeat customers or
referrals from them, although he spent some money on advertising his services.
[10]
The plaintiff estimated he worked about 40 to 60 hours each week prior to
the accident. He would work up to six days per week, eight to twelve hours per
day. He cleaned carpets in houses, apartment buildings and businesses. He
cleaned furniture and occasionally provided pressure washing services on
request. The plaintiff cleaned furnaces and air ducts. Duct and furnace
cleaning is a physically easier job than carpet cleaning because it does not
involve pushing and pulling the wand along the carpet to deposit and suck up
cleaning solution and water. The plaintiff also provided Scotchgard and
sanitizing services.
[11]
When the plaintiff arrived at a job, he would first walk through the
house to assess what was required. Next he would set up the hose from his van
and spray the carpet with cleaning solution. He had to move the furniture,
clean the carpets with a wand to suck up the cleaning solution and rinse with
fresh water and then put the furniture back in place on top of material to save
the carpet.
[12]
The typical 2,000 to 3,000 square foot home would take the plaintiff
approximately one and a half hours to clean. He charged based on the number of
rooms and what the customer wanted done. A basic cleaning job for five rooms,
hallway and stairs was priced at $250. If it was a deep cleaning, or the
customer requested Scotchgard treatment or sanitizing in addition to cleaning,
the price would be $400. The plaintiffs minimum charge for one room and a hall
or stairs was $89. Furnace cleaning was priced at $89. That service usually
took about 30 minutes. He charged $249 for air duct cleaning. That service took
about an hour and a half. On occasion he would power wash exterior surfaces for
customers. Most of the plaintiffs customers lived in large homes in North or
West Vancouver.
[13]
When he worked in apartment buildings, the plaintiff used a portable
machine. Consistent with his poor memory for many details, he could not recall
the weight of the machine but said it was fairly heavy and hard to carry up
stairs if the building had no elevator. If the plaintiff was doing a larger job
in an apartment building or an office building, he would have Mr. Discon
help him to pull the hose behind him, move things or spray areas with solution.
Mr. Discon also assisted him in obtaining a contract with the Squamish
First Nation for a 40 plus unit apartment complex and the band head office. It
appears from the evidence of the plaintiff and Mr. Discon that the
services were provided in alternate years rather than annually.
[14]
In the two years before the accident the plaintiff estimated his
workload comprised of 70% carpet cleaning, 25% duct cleaning and 5% power
washing. He worked 70% of the time in homes and 30% in apartments. He worked
between seven and eight hours per day and spent an additional two or three
hours driving to jobs, though each day varied.
[15]
Tony Discon testified about his role in the plaintiffs carpet cleaning
business. The two have known each other for nearly 20 years. Mr. Discon
said the plaintiff is more like family than a friend. He started doing odd jobs
for the plaintiff about 10 or 12 years ago. He would accompany the plaintiff on
large jobs once a week or so. He helped the plaintiff load and unload the
cleaning truck, carry hoses, and move furniture and other heavy items. The two
men worked anywhere from eight to twelve hours per day depending on the job and
how many jobs.
[16]
Mr. Discon provided a somewhat more detailed explanation of some
facets of carpet cleaning than did the plaintiff. For example, he explained how
stained carpets are cleaned. If gum or something sticky is on the carpet, the area
is sprayed and the substance frozen to make it easier to remove. Mr. Discon,
or the plaintiff, would then get down on the floor to scrub the spot, then use
the wand back and forth to clean and rinse the area. Other work that required
them to get down on the floor was removal of the filtration line, the dark edge
around the carpet caused by circulating air that cannot be removed by scrubbing
with the wand.
[17]
Mr. Discon described the plaintiff as a fast and efficient worker
before the accident. The plaintiff would usually handle the portable carpet
cleaning machine himself, taking it out of the van and even carrying it up
stairs. Mr. Discon said the portable machine weighs 60 to 80 pounds and
has to be lifted up about four feet into the cleaning truck.
Pre-accident Health
[18]
By 2001, the plaintiff had remarried and was living in a townhouse in
North Vancouver. The couple had a daughter who is now 10 years of age. They
separated in 2009.
[19]
Prior to the accident the plaintiff was active with volleyball, mountain
biking and swimming. He would take his daughter to the park and play with her
or ride bikes with her. He used the recreation centre in West Vancouver for
swimming several times a week. He planted a vegetable garden in the backyard of
the family townhouse and did most of the cooking. The plaintiff said he was in
good health with no WorkSafe or disability claims. After a heavy day at work
his lower back would sometimes bother him but he took muscle relaxants and wore
a belt to support his back when he worked. He did not miss work due to back
pain.
The Plaintiffs Drug Use
[20]
One difficulty the plaintiff has had from time to time is the use of
illicit drugs. He first used opium in Iran when he was a teenager, where he
said it was culturally acceptable. After he came to Canada, upon learning his
first wife and daughter had disappeared from Iran, he became very emotional and
started using heroin. The plaintiff said his drug use did not affect his work.
He would smoke heroin prior to work as a cook and be good for 24 hours. He
used heroin until he relocated to Vancouver, at which point he went to a
detoxification centre for 10 days and then to the Miracle Valley treatment
centre. He stayed at Miracle Valley for three months before starting the
restaurant job in Vancouver that pre-dated his carpet cleaning career.
[21]
The plaintiff started using opium again in 2000 or 2001. At first he
smoked it once or twice a week, then after six months he was smoking it daily.
He obtained methadone in 2005 or 2006 and stopped using opium.
[22]
The plaintiffs recollection of his opium and methadone use leading up
to the accident lacked precision, as did other aspects of his evidence
concerning significant dates. It appears in August or September 2008 he was
using methadone because his wife was complaining, presumably about his opium
use. He used methadone for 10 or 11 months.
[23]
On cross-examination, the plaintiff acknowledged he signed a methadone
maintenance registration form on January 31, 2009. On the form he stated he had
been using opium for four years. He used methadone for a time after January 31,
2009 but by February 2010 he re-entered the methadone program because he had
gone back to opium. The plaintiff denied the suggestion he told the doctor at
the methadone clinic that opium was disrupting his work. He agreed he likely
started using opium again in March 2010 and used it right up to the time of his
accident.
The Accident
[24]
On July 9, 2010, at approximately 6:30 p.m., the plaintiff was driving
Tony Discons car from Vancouver to North Vancouver. He was in the middle lane
of the Stanley Park Causeway. Cars from the right were merging into the middle
lane. Rather than merging, the defendants vehicle made a U-turn in front of
the plaintiff. He did not have time to brake or avoid impact. The air bag blew
up in the plaintiffs face. He could not get out the drivers door.
[25]
Mr. Discons car, a 1995 Acura, was not operational and was
ultimately written off by ICBC. The defendant driver acknowledged at his
examination for discovery that the collision was significant and frightening.
The Plaintiffs Condition after the Accident
[26]
The plaintiff hit his right knee on the dashboard in the collision. His
left arm and chest were bruised from the seatbelt. He got a ride to the other
end of the Lions Gate Bridge then walked home to Mr. Discons house on the
reserve where he had been living for several months. The plaintiff was bruised
and could not sleep that night. His neck hurt and he went to see a doctor the
following day. His knee, chest and neck were also stiff and sore. The doctor
provided some painkillers and also sent the plaintiff for x-rays, ultrasound
and acupuncture on his right shoulder. His left shoulder and chest hurt for a
week or 10 days, after which the bruising disappeared. His knee was sore for a
couple of days.
[27]
Mr. Discon saw the plaintiff the day after the accident. He noted
his friend was moving slowly and appeared very stiff. Mr. Discon said the
plaintiff is a busy body, meaning he usually moves around very quickly, but
after the accident that changed.
[28]
The doctor recommended the plaintiff take a month off work and rest. The
plaintiff took three weeks off but, as he was self-employed, he was anxious to
get back to work. Between August and December 2010 he tried to do his job as
before but his right shoulder and neck bothered him. His neck pain woke him up
during the night and he was tired during the day. His shoulder hurt during the
day when he worked. He went down to two jobs five days per week but was still
in pain from the pushing and pulling action.
[29]
The plaintiff says his neck and shoulder still bother him. His shoulder
is painful during the day and his neck bothers him at night and prevents him
from sleeping, no matter how many Tylenol or muscle relaxant pills he takes. He
feels his shoulder is 30% better since the accident but his neck has not
improved.
[30]
The plaintiff stopped using opium a couple of months after the accident
because he was using Tylenol 3 for pain. He then re-entered the methadone
program in 2013 so he could stop using Tylenol 3 due to its effect on his
stomach. He agreed he used opium for a couple of days before signing up at the
clinic so he would test positive for that substance. He also agreed he misled
the clinic by telling the doctor he had been using opium regularly for months.
The plaintiff agreed methadone is much less expensive than opium. He finds
methadone is an effective painkiller for his shoulder. If he is not working,
his shoulder does not bother him while he is on methadone. The drug does not,
however, assist with his neck pain.
[31]
The plaintiff has tried to change his job from mostly carpet cleaning to
furnace and air duct cleaning because it is easier on his shoulder, but his
workload is less than half of what it was before the accident. He described the
wand attached to the hose as weighing about 10 pounds. The hose has powerful suction.
The push and pull action of the wand is not easy for him with his injured
shoulder. Kim no longer does his bookings because she was not making enough
money. He calls customers himself and has lost a lot of customers because he
cannot do multiple jobs per day any more. He has lost more than 90% of the
customers he used to service with the portable carpet cleaning machine. If he
has someone to help him he will work with the portable machine or provide
pressure washing services, otherwise he cannot do that work.
[32]
The plaintiff works Monday to Friday from about 9:30 a.m. to 1:00 p.m.
By that time he is in pain. He would like to do more jobs but he cannot. He
estimates he has lost 40% of his client base. Mr. Discon still works with
the plaintiff on occasion but testified their days are shorter, between four
and six hours with only two or three jobs. The plaintiff has stopped doing
portable machine cleaning jobs.
[33]
The plaintiffs doctor recommended a variety of different therapies
after the accident. He has undergone massage therapy, ultrasound, acupuncture
and cortisone injections. The cortisone injections were effective but they
cannot be given on a regular basis due to potential side effects. He was shown
physiotherapy exercises and does them at home with a stretchy cord. He has gone
to a chiropractor.
The Plaintiffs Financial Circumstances
[34]
It was evident from listening to the plaintiff that he is not
financially sophisticated. When he is paid for a job he deposits the money in
his bank account, pays his bills and leaves financial decisions to his
accountant. He uses the same account for his business and personal expenses. Prior
to the accident, he estimated he spent between $40,000 and $60,000 per year, by
which I took him to mean this was his salary or draw from the company.
[35]
The plaintiffs year end is in October. His October 2010 year end was
down $13,000 from the prior year. In 2011, he estimates he was living on half
the amount of money, or $20,000-$30,000 per year, because he was losing
customers. In 2012, he was down another $8,000, also due to losing customers.
[36]
On cross-examination, the plaintiff agreed that he told the doctor at
the methadone clinic he was earning $100 to $200 per day before the accident.
He maintained he did not tell them how much he was actually earning as he did
not feel it was their business. Later in his evidence, he extemporaneously
offered the explanation that while he was taking a salary of $100 to $200 per
day, company revenue was higher.
[37]
Counsel for the defendants suggested to the plaintiff that he told the
functional capacity evaluator, Dominic Shew, he worked five days a week for
four or five hours per day before the accident. The plaintiff disagreed with
that, saying it did not include driving time and every day was different, some
longer and some shorter. He agreed that his earlier assertion of working eight
to twelve hours per day was much different than what he told Mr. Shew, but
did not know why he had not clarified that issue.
The Plaintiffs Accountant
[38]
Kulwinder Pattar has taken care of the plaintiffs business and personal
accounting back to at least 2004. He provides her office with all his records,
bank statements, Visa receipts and client invoices. She compiles them,
summarizes his income and expenses, formats it as a financial statement and
does tax planning for him. Ms. Pattar said the plaintiff is not very
sophisticated. Her firm tells him what to do with his finances and he goes
along with it.
[39]
Ms. Pattar said in 2006 the plaintiffs operation was complicated with
a number of trucks. In 2007, the plaintiffs company lost $13,748. Once he
streamlined the company to a one-man operation, he did much better. His
automotive costs have gone down substantially since 2007, as one benefit of
streamlining. In 2008 the company did better and made a small profit. There was
not much change in 2009 but it did quite well in 2010. After that, revenues
decreased.
[40]
The first eight months of the plaintiffs 2010 fiscal year (October 31,
2009 to June 2010) reflected eight good months of earnings from Ms. Pattars
perspective. Out of the $100,000 the company generated for the full fiscal
year, Ms. Pattar estimated $75,000 to $80,000 had been earned before the
accident.
[41]
Ms. Pattar took the court through the companys year end financial
statement from October 2013. She identified a few corporate expenses which
notionally confer a benefit on the plaintiff, such as auto expenses, cell phone
charges, bank charges and possibly office rent deducted from what he pays for
his home. The plaintiffs total net benefit from his table of draws declined
from $61,200 in 2010 to $22,674 in 2013.
Post-accident Activities
[42]
The plaintiff spends time with his daughter after school while her
mother is at work. She is active and likes to play volleyball and frisbee, two
things he cannot do due to his shoulder injury. They bike together but
sometimes his fingers get numb after a half hour. Dr. Tarazi, the
plaintiffs orthopedic expert, was of the opinion that this numbness is
unrelated to the car accident as its onset post-dated that event by some time.
Surgical Option
[43]
The plaintiff saw Dr. Tarazi, about the injury to his right
shoulder. He was also examined by the defendants expert, Dr. Goel, who
recommends surgical repair of his shoulder. The plaintiff is not comfortable
with surgery because there is no guarantee everything will be okay following
surgery and he would be off work for three to four months and would lose a lot
of customers. He does not have disability coverage but does pay employment
insurance premiums. He does not have someone who can do the work for him while
he recovers. Mr. Discon does help him out from time to time but he has his
own job and he is not physically up to the demands of carpet cleaning as he is
a large man.
The Plaintiffs Orthopedic Expert, Dr. Tarazi
[44]
Dr. Tarazi gave expert opinion evidence in the field of orthopedic
surgery. He has special training in shoulder and knee surgery. He has done
approximately 1,500 shoulder surgeries over the past 15 years. He sees patients
as part of a clinical practice as well as for medical legal purposes on behalf
of both plaintiffs and defendants.
[45]
Dr. Tarazi met with the plaintiff to discuss the nature of the
accident and how the injuries have affected his job, recreational activities
and home arrangements. He then conducted an examination. He found the plaintiff
experienced pain in the back of his neck when he flexed his chin forward. Dr. Tarazi
diagnosed the plaintiff with persistent neck pain secondary to a myofascial
strain and pre-existing spondylosis which would otherwise have remained
asymptomatic for decades. He said in his report:
It has been over three years
since the motor vehicle accident and he continues to have neck pain. It is my
opinion that his neck pain is now chronic and will continue on a permanent
basis. He will have to make modifications to his activities on an ongoing basis
to accommodate for this pain. He will have to avoid heavy lifting, overhead
activities, pushing, or pulling in order to minimize the risk of flaring up of
his neck pain.
[46]
The plaintiffs right shoulder was tender anteriorally and laterally. Dr. Tarazi
diagnosed right shoulder myofascial strain which has led to the activation of a
previously asymptomatic calcific tendonitis and a partial thickness rotator
cuff tear. He said in his report:
His pain is now likely chronic.
He will have to make modifications to his activities on a permanent basis to
accommodate his symptoms. This will include avoiding a lot of repetitive
movements with his right arm as well as lifting, reaching, pushing, pulling and
overhead activities. It is my opinion that Mr. Mir-Tabatabaei will likely
continue to have pain and functional disability related to his right shoulder
with or without any surgery on a permanent basis.
[47]
Dr. Tarazi does not recommend surgery for the plaintiffs shoulder
as it may not improve pain or function and can worsen the condition. Dr. Tarazis
opinion is that surgery does not improve shoulder stiffness in a case like
this. The plaintiffs scar tissue has been there since the accident. It will be
thick and mature and hard to remove. The doctor would not expect symptoms to
reliably resolve sufficiently with surgery. About 60% of people get improvement
or partial resolution with surgery; the rest either do not improve or get
worse. Some go on to develop frozen shoulder. Surgery for a partial thickness
rotator cuff tear is much less predictable than that for a full thickness tear.
[48]
Dr. Tarazi found the plaintiff was partially disabled since the
accident based on his report of pain and reduced work hours. He recommended
treating the symptoms conservatively unless the pain became too severe that the
plaintiff may not have a choice about avoiding surgery. He recommended ongoing
physiotherapy to maintain the plaintiffs endurance and strength, to maintain
his range of motion and to minimize the risk of flare ups and treat any
potential flare ups with physical activity. While those exercises can be done
at home, Dr. Tarazi pointed out that physiotherapists also use ultrasound
and other equipment which is not available for home use. Massage therapy would
likely help when symptoms flare up.
Functional Capacity Evaluation by Dominic Shew
[49]
Mr. Shew gave expert opinion evidence as a functional capacity
evaluator. He assessed the plaintiff in March 2014 over the course of seven
hours. The plaintiff had an interpreter to assist him with relaying information.
Mr. Shew administered a variety of tests to the plaintiff during the day
to assess his physical capacity. The tests simulated two jobs: one carpet
cleaning job and one duct cleaning job.
[50]
The plaintiff completed the assigned tasks in about three and one half
hours but he struggled with productivity when his neck or shoulder was
stressed. The plaintiff could not lift 30 pounds above his waist safely. Mr. Shew
concluded the plaintiff was overall exerting maximum capacity. Lifting and
repetitive use of his neck and upper extremity would aggravate his injuries.
Working above his head was the primary problem though Mr. Shew agreed this
was not necessarily a carpet cleaning task. The plaintiff had no difficulty
walking or standing or with activities associated with driving.
[51]
Mr. Shew agreed he did not get a great deal of specific detail from
the plaintiff about the particulars of his job, such as the weight of
equipment, the length of hoses and how long it takes to spray a carpet to start
the job. The plaintiff said all of these factors varied quite a bit. Mr. Shew
did not do independent research to uncover these details. He had done onsite
job assessments of carpet and furnace cleaners, however, and has a certain
familiarity with what those jobs require.
[52]
Overall, Mr. Shew observed the plaintiff could do tasks associated
with carpet cleaning but as the day progressed there was a reduction in right
shoulder mobility and speed, flexibility or endurance. He could complete a job
but it took him longer and he could not do as many jobs during the day. Mr. Shew
concluded the plaintiff was not competitively employable as a carpet cleaner
but was gainfully employable in a reduced capacity.
[53]
Mr. Shew could not say precisely how much the plaintiffs capacity
was reduced.
The Defence Case
The Defence Orthopedic Expert, Dr. Goel
[54]
Dr. Goel was in substantial agreement with Dr. Tarazis
diagnosis of right shoulder rotator cuff syndrome and right shoulder myofascial
pain. His opinion is the plaintiff has done everything he can to rehabilitate
himself but surgery to his rotator cuff would result in a 60% improvement in
his symptoms, based on the fact that the plaintiff experienced pain relief from
cortisone injections in his shoulder. Dr. Goel said in his report I would
anticipate a similar response to surgery.
[55]
Dr. Goel characterizes the operation required a day surgery with
minimal risk and a three to four month recovery time. He does not support
passive therapies such as physiotherapy or others recommended by Dr. Tarazi.
The Defence Addiction Specialist, Dr. Sobey
[56]
Dr. Sobey reviewed the plaintiffs PharmaNet history and the
amounts of methadone prescribed to him in 2013 and 2014. In his opinion, the
plaintiff was taking methadone for his opium addiction, not for pain relief.
When prescribed for pain relief methadone is taken in pill form, not in liquid
form as the plaintiff has been ingesting his doses.
Dr. David Tsung from the Methadone Clinic
[57]
Dr. Tsung works primarily at the Yale Medical Clinic. He treated
the plaintiff in 2010 and testified as a fact witness. He tries to take
contemporaneous notes as best he can when speaking with a patient. He saw the
plaintiff on February 8, 2010 and noted off program for two months. Dr. Tsung
explained this meant the plaintiff was off the methadone program for two months.
He noted the plaintiff said he was smoking two grams of opium per day and then
there was a comment by the plaintiff working and finds his drug use is
disrupting, would like to discuss options.
[58]
Ms. De Baie asked Dr. Tsung what he interpreted from that
note. Dr. Tsung said just what he wrote down. He cannot say if opium use
disrupted the plaintiffs life or his work, just that there was some disruption.
Credibility and Reliability of Lay Witnesses
[59]
Counsel for the defendants maintains that since the plaintiff misled the
court or exaggerated on numerous occasions, his evidence is unreliable and
should not be accepted. Counsel cited a number of examples, including:
·
the plaintiffs overstatement of his companys revenues from 2003
to 2007;
·
his overstatement of how much he worked prior to the accident;
·
his statement to the doctor at the methadone clinic in January
2009 that he earned $100 to $200 per day;
·
his insistence that his opium addiction did not affect his work;
and
·
his different accounts of opium and methadone use pre and
post-accident.
[60]
I acknowledge there were some inconsistencies in the plaintiffs
evidence. He does not have a good memory for dates or numbers but I do not find
he exaggerated his injuries or their impact on him. As an example, while the
plaintiff injured his knee and his left chest and shoulder in the accident, he
said those injuries cleared up relatively quickly. If he was someone who set
out to deliberately mislead the court one would expect him to play up those
injuries to improve his chances. I conclude that while he was unreliable in
some respects, he was not attempting to mislead the court.
[61]
Furthermore, there is some corroboration of the plaintiff in several key
aspects. First, his shoulder injury is objectively verifiable through the
experts evidence. Second, Mr. Discon confirmed the plaintiffs good
health and robust approach to his work changed after the accident, resulting in
the plaintiff working shorter days. Mr. Discon is the plaintiffs close
friend but I find he gave an honest and candid account of his knowledge of the
plaintiff. Third, Ms. Pattar confirms the plaintiffs income from the
company has gone down since the accident. While there may be other reasons that
contributed to the decline in income, he is earning less since the accident.
[62]
Overall, while the plaintiffs evidence was not perfect, it is reliable
in areas that are germane to this courts assessment of damages.
[63]
As to the other lay witnesses, I have already noted my finding that Mr. Discon
was credible and reliable. I found the same with respect to Ms. Pattar and
Dr. Tsung and in any event neither witnesss credibility nor reliability
was challenged by counsel.
Credibility and Reliability of Expert Witnesses
[64]
Neither counsel took issue with the credibility or reliability of the
orthopedic surgeons. The plaintiffs expert, Dr. Tarazi, did not recommend
surgery. The defence expert, Dr. Goel, did recommend surgery. Their
difference of opinion did not turn on anything more than two reasonable experts
seeing treatment options in a different way. Overall, I found Dr. Tarazis
opinion to be more reasoned and thorough in terms of his assessment of the
risks and benefits of surgery for the plaintiff.
[65]
As to Mr. Shew, the functional capacity evaluator, I found he was
hampered to a certain extent by the lack of information available from the
plaintiff about particular aspects of the carpet cleaning industry. While this
affects the weight to be accorded the opinion, it is no reflection on Mr. Shew
as a witness.
Findings of Fact
[66]
It is undisputed that the accident caused the plaintiffs injuries.
While pain is subjective I do not doubt the plaintiffs complaints of pain in
his neck which disrupts his sleep and pain in his injured right shoulder which
interferes with physical activity including his work as a carpet cleaner. The
injuries have affected the plaintiffs ability to work as much as he did before
the accident. He works more slowly than before, cannot complete as many jobs
and cannot work as many hours in a day due to the pain in his shoulder. I am
not persuaded the plaintiffs drug use had any appreciable impact on his
ability to earn a living. The comment recorded by Dr. Tsung about opium
disrupting the plaintiffs life is not tied to anything specific, such as his
employment, and I am not convinced on a balance of probabilities the plaintiff
complained that opium use was affecting his job.
[67]
Dr. Tarazis opinion provides a deeper examination of the benefits
and risks of surgery in the plaintiffs particular case than does Dr. Goels
opinion. I prefer to rely on Dr. Tarazis report concerning the
plaintiffs shoulder injury and his opinion that surgery is not indicated due
to the real possibility of a negative outcome. Based on Dr. Tarazis
opinion I find the plaintiffs decision not to have surgery is a reasonable
one.
Assessment of Damages
Non-pecuniary Damages
[68]
The assessment of non-pecuniary damages takes into the account the
well-established factors from Stapley v Hejslet, 2006 BCCA 34 at para. 46
[Stapley]. An award under this head is intended to compensate the
plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities.
Factors commonly taken into account include the age of the plaintiff, the
nature of the injury, the severity and duration of pain, the extent of any
disability, the extent of emotional suffering and impairments to the
plaintiffs life, including impairments to family, marital and social
relationships, physical and mental abilities and loss of lifestyle. Each
plaintiff must be assessed individually, though reference to previous similar
cases can be helpful. A plaintiffs stoicism is a factor that should not,
generally speaking, penalize the plaintiff: Giang v. Clayton, 2005 BCCA
54 [Giang].
[69]
The plaintiff seeks non-pecuniary damages in the amount of $90,000 to $120,000
based on the following cases involving upper body/shoulder injuries as the
primary or a significant injury: Ostrikoff v. Oliveira, 2014 BCSC 531; Stapley;
Legault v. Brock Shopping Centre Ltd., 2010 BCSC 687; Taylor v.
Grundholm, 2010 BCSC 860; Power v. White, 2010 BCSC 1084; and Wong
v. Hemmings, 2012 BCSC 907 [Wong] which the plaintiff says is most
comparable to his situation.
[70]
Counsel for the defendants says that measuring a persons pain and
suffering is difficult, as pain is subjective and the plaintiffs evidence of
his pain and suffering in this case is unreliable due to his propensity to
mislead and exaggerate. The defendants submit an award in the range of $40,000
to $60,000 is fit, based on DeGuzman v. Ge, 2013 BCSC 1450; McKenzie
v. Mills, 2013 BCSC 1505; Pan v. Shihundu, 2014 BCSC 504; and Rahimi
v. Ma, 2014 BCSC 710.
[71]
The plaintiff is 53 years of age. He experiences pain in his right
shoulder when he exerts himself. He experiences pain in his neck at night which
disrupts his sleep. There is no cure for either of these conditions. His
shoulder may get worse and require him to undergo surgery which in turn carries
risks. Notwithstanding the pain and discomfort, the plaintiff has continued to
work to the extent that he is able and to participate in his previous leisure
activities, such as biking and swimming, albeit it to a lesser extent than
before the accident. I agree with counsel for the plaintiff that Wong is
very similar in terms of the type of injury involved; however, the plaintiff in
that case had an additional injury to her knee. Nonetheless, it is a helpful
benchmark. In all the circumstances I find an award of $75,000 for
non-pecuniary damages is appropriate.
Past Loss of Earnings
[72]
A claim for past loss of earnings is for the loss of earning capacity or
the loss of the value of the work that the plaintiff would have, not could
have, performed but was unable to perform because of the injury. It is a matter
of loss of earnings capacity, not the loss of actual income which is to be
assessed: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30.
[73]
The Court continued:
[31] Evidence of this value may take many forms. As was said
by Kenneth D. Cooper-Stephenson in Personal Injury Damages in Canada,
2nd ed. (Scarborough, Ont.: Carswell, 1996) at 205-06,
The essence of the task under this head of damages is to
award compensation for any pecuniary loss which will result from an inability
to work. Loss of the value of work is the substance of the claim loss of
the value of any work the plaintiff would have done but for the accident but
now will be unable to do. The loss framed in this way may be measured in different
ways. Sometimes it will be measured by reference to the actual earnings
the plaintiff would have received; sometimes by a replacement cost
evaluation of tasks which the plaintiff will now be unable to
perform; sometimes by an assessment of reduced company profits; and
sometimes by the amount of secondary income lost, such as shared family
income.
[Underscoring by the Court of
Appeal; other emphasis in original]
[74]
The burden of proof of actual past events is on a balance of
probabilities. Hypothetical possibilities will be taken into consideration so
long as they are real and substantial rather than mere speculation.
[75]
It is clear from the evidence that the plaintiffs earnings varied from
year to year. Counsel for the plaintiff submits his earnings were trending
upwards in the years immediately preceding the accident and his loss can be put
at $20,000 to $30,000 per year or $80,000 to $100,000 from the time of the accident
to the time of trial.
[76]
In stark contrast, counsel for the defendants maintains the plaintiff
was only off work for one month and a sum of $2,000 to $2,500 gross for that
month is all he is entitled to. In the alternative, the defendants submits a past
wage loss award should be no more than $7,500 to $10,000.
[77]
I find the plaintiffs loss of capacity to work at the same pace he did
prior to the accident resulted in a gross income loss of between $7,500 and
$10,000 per year between the accident and the trial. He has lost the capacity
to work for more than four hours and he works more slowly than before the
accident. He is not capable of working eight or ten hour days as he was
formerly.
[78]
The assessment of past loss of earning capacity is not a mathematical
calculation, but the range of gross income loss noted in the preceding
paragraph takes into account the variability in the plaintiffs income stream
reflected in the evidence of Ms. Pattar and the plaintiffs evidence about
the decline in his draws from the company. I assess a fair and reasonable
amount for past loss of earning capacity at $32,500.
Loss of Future Earning Capacity
[79]
The inquiry into this head of damages starts with a consideration of
whether there is a real and substantial possibility that the plaintiffs
injuries will lead to a loss of income in the future: Perren v. Lalari, 2010
BCCA 140 [Perren]. The standard of proof in relation to future events is
simple probability and hypothetical future events are to be given weight
according to their relative likelihood: Athey v. Leonati, [1996] 3
S.C.R. 458 at para. 27.
[80]
The plaintiff should be placed, insofar as possible, in the position he
or she would have been but for the injuries caused by the defendants
negligence: Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para. 185.
The task of the court is to compare what the plaintiff would probably have
earned but-for the accident with what he will probably earn in his injured
condition: Gregory v. Insurance Corp. of British Columbia, 2011 BCCA 144
at para. 32. As with past income loss this is not a mathematical
calculation and negative and positive contingencies which might affect a
particular plaintiffs earning capacity must be taken into account.
[81]
There are two approaches to the assessment of loss of future earning
capacity: the earnings approach from Pallos v. Insurance Corp. of British
Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.), and the capital asset
approach in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 [Brown].
Both are correct, but are dependent on the prevailing circumstances. Where the
loss is not measurable in a pecuniary way, as in this case where the plaintiff
has not earned a steady stream of income based on fixed hours, the capital
asset approach is more appropriate: Perren at para. 12.
[82]
The capital asset approach involves consideration of the general factors
in Brown at para. 8:
1. The
plaintiff has been rendered less capable overall from earning income from all
types of employment;
2. The
plaintiff is less marketable or attractive as an employee to potential
employers;
3. The
plaintiff has lost the ability to take advantage of all job opportunities which
might otherwise have been open to him, had he not been injured; and
4. The plaintiff is less valuable
to himself as a person capable of earning income in a competitive labour
market.
[83]
These factors must be applied in a context-specific way to determined
what the plaintiff in question would realistically have done in the future had
the injuries not occurred. An inability to perform an occupation that is not a
realistic one is not proof of a future loss: Perren at para. 32.
[84]
Finally, the overall fairness and reasonableness of the award must be
considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11.
[85]
The plaintiffs future as a carpet cleaner is uncertain as a result of
the injuries he incurred in the accident, particularly his shoulder injury. He
may be able to continue working as a carpet cleaner, but it will be with
modifications which in turn will impact his earnings. The evidence of Dr. Tarazi,
Mr. Shew and Mr. Discon all point to the plaintiff working more
slowly than before in order to avoid aggravating his shoulder. The plaintiff
testified he has lost customers and I accept this is due to his inability to
work at the pace he did before the accident. I accept he works shorter days
than he did prior to the accident. I am not persuaded that his on again/off
again opium addiction has in the past or will likely in the future affect his
ability to work. I find the real and substantial possibility that the
plaintiffs injuries will lead to loss of income in the future has been proven.
[86]
The plaintiff does not have a post-secondary education and English is
his second language. He was ideally suited for the occupation of carpet
cleaning and by all accounts was good at it. Mr. Shew and Dr. Tarazi
both say the plaintiff must modify the way he works in order to continue
working as a carpet cleaner. He is gainfully employable but not in a
competitive labour market. I find he is clearly less valuable to himself as a
person capable of earning income in a competitive labour market. He has suffered
an impairment of his capital asset: his ability to do all facets of the job he
used to do and generate the same income.
[87]
The plaintiff submits the assumption of an ongoing annual loss in an estimated
amount to retirement age, reduced to its present value, is the appropriate
approach. Based on a presumed loss of $25,000 per year from the first day of
trial until the plaintiff turns 65, the plaintiffs economic consultants
calculated a lump sum present value of $188,350 to $258,200. This does not take
into account the possibility that the plaintiffs income would have increased.
On the other hand, if the plaintiff loses his business, his prospects for
earning income through other employment or self-employment are limited by his
age, training, linguistic limitations and physical limitations. Taking all
these factors into account, the plaintiff seeks an award of $175,000 to
$225,000.
[88]
The defendants submit the plaintiff would continue to be plagued by his
opium addiction in the future to the extent that his ability to work would no
doubt have been affected, quite apart from the accident. He is still capable of
working two or three jobs per day and this is roughly what he worked before the
accident. Counsel for the defendants also submits that the plaintiffs account
of working with pain should be regarded with skepticism as he is prone to
exaggerate. The defendants primary position is the plaintiff is not entitled
to an award but if he is, it should be no more than $20,000 to $25,000, or
roughly $2,500 per year for the balance of his working life.
[89]
As I noted earlier in these reasons, I am not persuaded that the
plaintiffs opium addiction has had or will have any appreciable impact on his
income earning ability. Taking into account a continuing loss of $7,500 to
$10,000 per year until the plaintiff turns 65, and taking into consideration
factors such as an increase in income some years and decrease in others, I
assess a fair and reasonable award for loss of future earning capacity at
$125,000.
Special Damages
[90]
The parties agree on special damages in the amount of $1,750.64 and I so
order.
Cost of Future Care
[91]
An award for the cost of future care is intended to compensate a
plaintiff for expenses that are reasonably necessary for his future medical
care. These expenses must be reasonable and they must be medically justified: Milina
v. Bartsch (1985), 49 BCLR (2d) 33 (SC) at paras. 198-200. As is the
case with loss of past and future earning capacity, this is an assessment, not
a precise accounting exercise.
[92]
Based on Dr. Tarazis recommendations for manual therapy 15 to 20
times per year, exercise at a gym and advice from a kinesiologist or
physiotherapist, the plaintiff seeks a global allowance of $40,000. Close to
half of that is the estimated cost of a gym membership. The plaintiff makes no
claim for the cost of medication in the future.
[93]
The defendants submit a nominal award at best would be appropriate as
their expert, Dr. Goel, does not believe the passive therapy suggested by Dr. Tarazi
will assist. Dr. Goel is in favour of surgery.
[94]
As I noted earlier, this is an area where reasonable experts disagree. I
found the plaintiffs refusal of surgery at this time was a reasonable one and
thus he is entitled to an award for the therapies Dr. Tarazi has
recommended. I award the plaintiff $15,000 for the cost of future care. This
amount will cover most of the therapy Dr. Tarazi recommends. I decline to
award anything for a gym membership as the plaintiff used community centre
facilities before the accident.
Summary
[95]
In summary, I award the plaintiff the following:
Non-pecuniary damages | $75,000.00 |
Past loss of earning capacity | 32,500.00 |
Loss of future earning capacity | 125,000.00 |
Special damages | 1,750.64 |
Cost of future care | 15,000.00 |
TOTAL: | $249,250.64 |
[96]
Unless there are matters of which I am not aware, the plaintiff is
entitled to his costs at Scale B. If necessary, the parties may arrange to
appear before me respecting costs or any outstanding matters by notifying Trial
Scheduling within 30 days of this judgment.
Duncan J.
___________________________________________
The
Honourable Madam Justice Duncan