IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150602

Docket: M123078

Registry:
Vancouver

Between:

Brandon Kiyoshi Ishii

Plaintiff

And

Lung F. Wong and
Kent Wong

Defendants

– and –

Docket: M124298

Registry:
Vancouver

Between:

Brandon Kiyoshi
Ishii

Plaintiff

And

Stephen John Beach

Defendant

Before:
The Honourable Madam Justice Gerow

Reasons for Judgment

Introduction

[1]           
Brandon Ishii claims for damages he alleges he sustained in two motor
vehicle accidents. The first motor vehicle accident occurred on August 24,
2010, when Mr. Ishii’s motorcycle collided with a vehicle driven by the
defendant Lung Wong at the intersection of North Road and Cameron Street in
Coquitlam, B.C. (the “2010 accident”). Ms. Wong was turning left at the
time. Ms. Wong denies liability for the accident.

[2]           
The second accident occurred on March 24, 2012 in Kelowna, B.C. (the
“2012 accident”). At that time, the vehicle driven by Mr. Ishii came into
contact with the vehicle driven by Stephen Beach on two occasions. Following
the second contact, Mr. Ishii followed Mr. Beach and an altercation
occurred. Mr. Ishii does not claim any physical injures as a result of the
collision but claims for psychological injures he asserts he suffered. Mr. Beach
says that the action should be dismissed.

[3]           
Mr. Ishii claims that as a result of the 2010 accident, he
sustained fractures to his right arm and left scaphoid bone, and a fracture to
his right leg. He says he is permanently partially disabled as a result of the
injuries he sustained in the accident. Mr. Ishii is claiming damages for
pain and suffering, loss of past and future income earning capacity, and loss
of future care. He is also claiming special damages in the amount of $2941.

Issues

[4]           
The issues are:

1.   
Is Ms. Wong responsible for the 2010 motor vehicle accident; and if
so, is Mr. Ishii contributorily negligent?

2.   
Is Mr. Beach responsible for the 2012 incident; and if so is Mr. Ishii
contributorily negligent?

3.   
What are the nature, duration and extent of the injuries Mr. Ishii
suffered in each accident?

4.   
What is the appropriate award of general damages for pain and suffering?

5.   
What amount, if any, should be awarded for the past loss of income
earning capacity?

6.   
What amount, if any, should be awarded for loss of future income earning
capacity?

7.   
What amount, if any, should be awarded for the cost of future care?

[5]           
The parties have agreed on special damages in the amount of $2,941.

Background

[6]           
Mr. Ishii is currently 22 years old. He has been employed as a
delivery driver for Domino’s Pizza since 2013.

[7]           
The parties agree that the 2010 accident is the more significant
accident. As stated earlier, Mr. Ishii is not claiming that he was
physically injured in 2012 accident, but claims he suffered psychological
injuries as a result of that accident.

[8]           
At the time of the 2010 accident, Mr. Ishii was 18 years old, and
had graduated from high school in June. Mr. Ishii was living independently
of his parents and working part-time at Canadian Tire.

[9]           
His career goals were either to become a pilot, or an automobile
mechanic. In high school Mr. Ishii developed a love of mechanics and
building things. Mr. Ishii’s high school grades show weak academic
performance but strong performance in computer animation, and automotive
mechanics.

[10]       
The 2010 accident occurred on August 24, 2010 at approximately 10 p.m. when
Mr. Ishii was riding a motorcycle southbound on North Road in Coquitlam,
B.C. At the intersection of Cameron Road Mr. Ishii collided with a vehicle
driven by Ms. Wong who was turning left from North Road onto Cameron Road.
There are two through lanes and a dedicated right hand turn lane for both
northbound and southbound traffic on North Road. Mr. Ishii’s evidence is
that he was travelling southbound in the left through lane.

[11]       
Ms. Wong was driving northbound on North Road in a vehicle
belonging to her father, Kent Wong. The intersection was governed by traffic
lights. She had stopped waiting to turn left on to Cameron Road. Ms. Wong’s
evidence is that she thought the southbound traffic was stopping and did not
see Mr. Ishii prior to the collision occurring. When Ms. Wong turned
left, Mr. Ishii was unable to stop his motorcycle and collided with her
vehicle. Ms. Wong’s evidence is that she was surprised when she heard the
crash.

[12]       
Mr. Ishii hit the side of Ms. Wong’s vehicle and ended up on
the road on the other side of the vehicle on his hands and knees. He
immediately noticed his right wrist was very painful. Mr. Ishii did not
lose consciousness in the accident. He was taken to Royal Columbian Hospital
where he remained until September 5, 2010. Mr. Ishii sustained fractures
to both wrists, and his right femur. Various surgical procedures were performed
by Dr. Bertrand H. Perey, an orthopaedic surgeon, including the
installation of hardware in both wrists and his right leg.

[13]       
Following his release from hospital, Mr. Ishii went to live with
his mother, Rhonda Ishii. Ms. Ishii testified about Mr. Ishii’s recovery.
When he arrived at his mother’s home, Mr. Ishii was in a wheelchair but he
was able to use a walker for some periods of time. Ms. Ishii testified
that she had to modify her home to accommodate Mr. Ishii’s wheelchair. She
removed carpeting, built a ramp and took the doors off the bathtub at her own
expense.

[14]       
When he arrived home, Ms. Ishii had to assist Mr. Ishii with daily
chores such as eating and dressing because both of his wrists were broken as
well as his right leg. She took time off work in order to drive him to
appointments at the doctors and other health care providers until his insurer
funded a taxi account in the late fall of 2010.

[15]       
Mr. Ishii also received assistance from We Care, which provided personal
care, including bathing, cooking and daily assistance until September 29^th,
2010.

[16]       
Mr. Ishii began physiotherapy at Maxfit
Movement Institute on October 15, 2010. By then, his left wrist and right
hamstring had healed. He was encouraged to use his walker instead of his
wheelchair, and slowly succeeded in doing so. The wheelchair was returned
around Christmas time.

[17]       
Mr. Ishii graduated to crutches then a
cane. He attended physiotherapy, including aqua therapy, where he exercised on
a treadmill in a tub of water which allowed him to walk, run, squat and step
side to side with less impact.

[18]       
Panta Zarrinkamar, the physiotherapist in charge
of Mr. Ishii’s treatment at Maxfit, testified that he slowly made
progress. She observed he was experiencing pain and discomfort during
traditional physiotherapy. Ms. Zarrinkamar testified that the plaintiff
performed better and progressed further during the aquatherapy sessions as
there was less stress on his leg. She stated she was satisfied with his
attendance and rated his effort and adherence to his home exercises at 8.5 out
of 10.

[19]       
Mr. Ishii attended hand therapy four times
between December 2010 and February 2011. He described the therapy as very
painful, and a decision was made to remove some of the internal hardware (the k
wire) from the right wrist.

[20]       
Around April 1, 2011, Mr. Ishii had
discarded his cane and was able to walk for periods of approximately 15
minutes, although with pain and a limp.

[21]       
In May 2011, Mr. Ishii asked the supervisor
at Canadian Tire, Sean Droulis, when he could return to work. He was informed
that Mr. Droulis had hired three new people and there was no longer a job
for him. Mr. Ishii was upset and disappointed, and his mood declined.

[22]       
Ms. Ishii testified that her son withdrew
during the summer of 2011. He would sleep all day. He would give one word
answers. He would miss therapy treatments and she would receive calls from
therapists. When she pressed him to attend, Mr. Ishii would become angry
and slam his bedroom door.

[23]       
As part of his rehabilitation, Mr. Ishii
also worked with an occupational therapist, Sarah Landry. Ms. Landry’s
evidence was that in July 2011, it was decided that in order for Mr. Ishii
to return to employment, he needed an active rehabilitation program which would
provide him with a meaningful, structured daily routine, as well as increase
his strength, condition and activity tolerance to a level where he could
undertake a partsman job or some similar position in the automotive field. It
was arranged that Mr. Ishii would attend Back in Motion for an active
rehabilitation program.

[24]       
On August 16, 2011, Dr. Perey removed the k
wire from Mr. Ishii’s right hand, which delayed the start of his Back in
Motion program. Mr. Ishii testified that he did not obtain much benefit
from the active rehabilitation program at Back in Motion.

[25]       
Around the same time, Mr. Ishii obtained
work at Armani Exchange where he folded clothes for minimum wage. In November
2011, his hours at Armani Exchange had declined and he found a job at Regency
Volkswagen. Mr. Ishii worked at Regency Volkswagen until January 2012. His
evidence is that he had difficulty performing some of the physical aspects of
the job.

[26]       
On March 24, 2012, Mr. Ishii was involved
in the second accident. Mr. Ishii was driving a 1985 Mercedes northbound
on Highway 33. His girlfriend Alexis Robbins and his friend Garrett Kabela were
also in the car. There were two northbound lanes and Mr. Ishii was in the
left lane travelling at about 45 km/h, when the traffic was required to merge
as a result of a work truck in the right lane. Mr. Ishii’s evidence is
that he allowed a vehicle from the right lane to merge in front of him, and
expected the next vehicle driven by Stephen Beach to merge behind his vehicle.
Instead Mr. Beach attempted to merge in front of Mr. Ishii and he was
unable to stop so his vehicle came into contact with Mr. Beach’s vehicle.
After the accident, Mr. Ishii attempted to get Mr. Beach to pull over, but
instead of pulling over Mr. Beach struck him again, and then left the scene. Mr. Ishii
followed the vehicle to obtain the license plate number.

[27]       
Mr. Ishii’s evidence is that Mr. Beach
pulled into a driveway on a side street and got out of his vehicle with a can
of bear spray and an axe, and approached the Mercedes and sprayed it with bear
spray preventing him from getting the license plate number. Mr. Ishii’s
evidence is that he tried again to get the license plate number and Mr. Beach
struck his vehicle with the axe and then threw the axe at the vehicle.

[28]       
Mr. Beach’s evidence is that Mr. Ishii
failed to yield the right of way when it was his turn to merge and struck his
vehicle. Mr. Beach testified that after the initial contact between the
vehicles he gestured to Mr. Ishii that he would turn a corner and pull
over. Mr. Beach’s evidence is that when he turned the corner, Mr. Ishii
struck his vehicle again. He did not stop to exchange information because of
the aggressive nature in which Mr. Ishii was driving his vehicle. Instead he
drove up the street to where he had arranged to meet his girlfriend, Christine
Musgrave, and pulled into a driveway. Mr. Beach testified that when he
stopped he got out of his vehicle with the bear spray to confront the driver of
the Mercedes. Mr. Beach’s evidence is that he initially sprayed the
Mercedes with the bear spray but that Mr. Ishii continued to drive towards
him in a threatening manner so he got an axe from his vehicle and struck the
Mercedes with it. Mr. Ishii then drove his vehicle towards him again and Mr. Beach
then threw the axe at the vehicle. The axe shattered the back passenger window,
and landed on Mr. Kabela’s lap.

[29]       
Both Ms. Musgrave and Ms. Robbins
called the police who arrived at the scene shortly after the axe was thrown. After
Mr. Beach threw the axe, Mr. Ishii drove his vehicle farther away
from Mr. Beach and waited for the police to arrive.

[30]       
As a result of the incident in Kelowna, Mr. Ishii
says he developed vehicle passenger anxiety, and his existing depression from
the 2010 accident was aggravated. Mr. Kabella, Ms. Robbins and Connor
Williams, another friend of Mr. Ishii’s, all testified that they have
observed Mr. Ishii become a visibly anxious passenger in a vehicle after
the 2012 accident. They testified that Mr. Ishii generally refuses to be a
rear seat passenger since that time.

[31]       
In early 2012, Mr. Ishii investigated the
possibility of a career as a pilot and determined it was unlikely he could
become a pilot because he was weak in mathematics. Mr. Ishii decided to
pursue the possibility of a private mechanics program.

[32]       
Greg Woodward, a vocational placement expert,
reviewed the program Mr. Ishii was considering, and advised Mr. Ishii
the program was not suitable for him because of his ongoing physical
difficulties. In April 2012, Mr. Ishii continued to have pain and
restrictions in his right wrist and right leg.

[33]       
Mr. Woodward suggested that Mr. Ishii seek auto related
employment in order to determine whether he was able to perform the job duties
of an automobile mechanic prior to taking any courses. Mr. Ishii obtained
employment at Lordco Parts Ltd., an automotive parts supplier, commencing in
April 2012. Mr. Ishii’s evidence is that he was able to perform the job
duties of delivering parts with limited assistance but left after a month for
reasons unrelated to the accident.

[34]       
In early 2013, Mr. Ishii began part-time work as a cook at
McDonalds restaurant working 4 hour shifts. Mr. Ishii’s evidence was that
he could do the job but did not like it. His supervisor was his girlfriend, Ms. Robbins.
Ms. Robbin’s evidence is that she observed Mr. Ishii had trouble with
some of the physical aspects of the job such as going in the freezer, lifting
boxes, and continuous standing.

[35]       
Mr. Woodward assisted Mr. Ishii with getting a work placement
with Budget Auto Centre in May 2013. Mr. Ishii began the work placement on
June 3, 2013. Initially he was assigned light tasks, such as shop clean up,
tire rotations, oil changes and light inspection and repair.

[36]       
Mr. Ishii was hired full time at Budget Auto Centre on June 24,
2013, earning $10.25 per hour as a service technician. His duties expanded and
he was required to speed up the pace of his work. Unfortunately, Mr. Ishii
was unable to keep up with full time physical demands of the job and was
terminated on August 2, 2013.

[37]       
Following the job at Budget Auto Centre, Mr. Ishii found employment
with Domino’s Pizza as a delivery driver. Mr. Ishii now works full time
for Domino’s Pizza with various shifts. He is paid $7 per hour, plus $1.25 per
delivery and tips. Mr. Ishii testified that his work has been impacted by
car breakdowns as he is responsible for his own vehicle.

[38]       
In addition to working at Domino’s Pizza, Mr. Ishii is currently
enrolled in an on-line mathematics course to further his education. At the
moment, Mr. Ishii is undecided what career path to follow, as it appears
he is not able to meet the physical demands of the position of an automobile
mechanic.

Liability for the 2010 Accident

[39]       
As set out earlier, Mr. Ishii’s motorcycle struck Ms. Wong’s
vehicle when she was turning left across the lane of traffic he was travelling
in. Mr. Ishii did not see Ms. Wong’s vehicle until just prior to the
collision. Neither Ms. Wong nor any of her relatives who testified saw Mr. Ishii’s
motorcycle before the collision. There is a dispute regarding whether the light
was green or yellow at the time Ms. Wong made the left hand turn. For the
following reasons, I find Ms. Wong at fault for the 2010 accident.

Legal Framework

[40]       
The relevant sections of the Motor Vehicle
Act, R.S.B.C. 1996, c. 318 provide:

128 (1) When a yellow light
alone is exhibited at an intersection by a traffic control signal, following
the exhibition of a green light,

(a) the driver of a vehicle approaching
the intersection and facing the yellow light must cause it to stop before
entering the marked crosswalk on the near side of the intersection, or if there
is no marked crosswalk, before entering the intersection, unless the stop
cannot be made in safety,

174 When a
vehicle is in an intersection and its driver intends to turn left, the driver
must yield the right of way to traffic approaching from the opposite direction
that is in the intersection or so close as to constitute an immediate hazard,
but having yielded and given a signal as required by sections 171 and 172, the
driver may turn the vehicle to the left, and traffic approaching the
intersection from the opposite direction must yield the right of way to the
vehicle making the left turn.

[41]       
A driver has an obligation not to proceed into
an intersection unless it can be done safely. The dominant driver who is
proceeding through the intersection is generally entitled to continue and the
servient left turning driver must yield the right of way: Cooper v. Garrett,
2009 BCSC 35, para. 32; Pacheco (Guardian ad litem of) v. Robinson (1993),
75 B.C.L.R. (2d) 273 (C.A.)

[42]       
In Pacheco, the court stated at para. 18:

In my opinion, when a driver in a servient position
disregards his statutory duty to yield the right of way and a collision
results, then to fix any blame on the dominant driver, the servient driver must
establish that after the dominant driver became aware, or by the exercise of
reasonable care should have become aware, of the servient driver’s own
disregard of the law, the dominant driver had a sufficient opportunity to avoid
the accident of which a reasonably careful and skilful driver would have
availed himself. In such circumstance any doubt should be resolved in favour of
the dominant driver. As stated by Cartwright, J. in Walker v. Brownlee, [1952] 2
D.L.R. 450 (S.C.C.) at 461:

While the decision of every motor vehicle collision case
must depend on its particular facts, I am of opinion that when A, the driver in
the servient position, proceeds through an intersection in complete disregard
of his statutory duty to yield the right-of-way and a collision results, if he
seeks to cast any portion of the blame upon B, the driver having the
right-of-way, A must establish that after B became aware, or by the exercise of
reasonable care should have become aware, of A’s disregard of the law B had in
fact a sufficient opportunity to avoid the accident of which a reasonably
careful and skilful driver would have availed himself; and I do not think that
in such circumstances any doubts should be resolved in favour of A, whose
unlawful conduct was fons et origo mali.

[43]       
If the vehicle approaching an intersection is so
close when a driver attempts to make a left turn that a collision may occur
unless some violent or sudden avoiding action is taken by the driver of the
approaching car, the approaching car is an “immediate hazard” within the
meaning of s. 174 of the Motor Vehicle Act: Raie v. Thorpe
(1963), 43 W.W.R 405 (B.C.C.A.), at para. 18.

[44]       
As noted in Nerval v. Khehra, 2012 BCCA
436 at para. 35:

The effect of
s. 174 is to cast the burden of proving the absence of an immediate hazard
at the moment the left turn begins onto the left turning driver. This result
flows inevitably from the wording of the section itself, given the nature of
the absolute obligation the section creates. If a left turning driver, in the
face of this statutory obligation, asserts that he or she started to turn left
when it was safe to do so, then the burden of proving that fact rests with them.

[45]       
As set out in Nerval, a left turning
defendant must first establish that when he or she began the turn there was no
immediate hazard posed by oncoming traffic. The defendant then has the burden
of proving that despite being the dominant driver, the plaintiff was negligent
and at fault for causing or contributing to the accident.

[46]       
If a left turning defendant wishes to successfully
cast blame on the dominant driver, the defendant must establish two things:
firstly, that the driver with the right of way was aware, or should have become
aware through the exercise of reasonable care, of the defendant’s disregard of
the law; and secondly, that the driver with the right of way had sufficient
opportunity to avoid the accident: Walker v. Brownlee, [1952] 2 D.L.R.
450 (S.C.C.), Cooper at para. 41.

[47]       
Speeding does not, in and of itself, constitute
negligence in this context unless by speeding the driver was prevented from
acting to avoid the collision: Cooper at para. 42.

[48]       
Section 174 of the Motor Vehicle Act
requires a left turning driver to yield to oncoming traffic when it constitutes
an immediate hazard. Section 128 of the Motor Vehicle Act requires that
a driver facing a yellow light to stop unless the stop cannot be made safely: Lee
v. Tse 2013 BCSC 1740 at para. 48.

The Plaintiff’s Position

[49]       
Mr. Ishii takes the position that Ms. Wong
should be at fault for the 2010 accident. Ms. Wong testified that she
began her turn after her light turned yellow. She testified that southbound
traffic had already stopped in both through lanes which can’t be true if the
plaintiff was in the left lane. However, she gave a statement dated August 26,
2010, in which she said that traffic southbound had stopped in the right turn
and middle lanes. In any event, Ms. Wong admits she did not see Mr. Ishii
before she turned, and at a time when he constituted an immediate hazard.

[50]       
Ms. Wong would have seen Mr. Ishii if
she had been looking. If she wishes to cast any blame on him, she must
establish that after Mr. Ishii became aware, or by the exercise of
reasonable care should have become aware, of Ms. Wong’s disregard of the
law, he also had sufficient opportunity to avoid the accident.

[51]       
Mr. Ishii’s evidence is that he barely had
time to engage his rear brake. There were no skid marks and no evidence Mr. Ishii
had opportunity to avoid the collision, even “by violent or sudden means” as
per Thorpe, at para. 3. It was impossible for Mr. Ishii to
avoid the collision.

[52]       
Ms. Wong has failed to establish that Mr. Ishii
was not an immediate hazard at the moment she initiated her left turn. Neither
she nor her witnesses had any idea he was there.

[53]       
No evidence has been put forward that Mr. Ishii’s
speed prevented him from taking reasonable measures to avoid the collision,
whether he was driving 50, 55 or 60 km/h. In the circumstances, Mr. Ishii
submits there should be no finding of contributory negligence against him,
regardless of whether the traffic light was green or yellow, and Ms. Wong
should be found 100% liable for the accident.

The Defendants’ Position

[54]       
The defendants submit their evidence and that of their family members
establishes that Mr. Ishii entered the intersection on an amber light.

[55]       
As such Mr. Ishii has to discharge the onus on him to prove he
could not have stopped safely. He has not done so. Mr. Ishii has admitted
he was speeding which would have made it more difficult for him to be able to
stop safely. He lacked the accreditation to be operating his motorcycle after
sunset. The defendants submit Mr. Ishii is negligent. He last checked the
colour of the light 5 car lengths from the intersection while speeding and did
not yield the right of way as he was required to do.

[56]       
Ms. Wong does not dispute she never saw Mr. Ishii. The
defendants submit a possible explanation for her failure to see Mr. Ishii is
that Ms. Wong may have thought all lanes but the curb lane had come to a
stop and she may have misread which lanes were stopped. Mr. Ishii testified
the sign on the median obscured his vision of Ms. Wong’s right headlight. Possibly
there was a momentary obstruction for Ms. Wong so that she was unaware Mr. Ishii’s
presence. However, if there was an obstruction known to Mr. Ishii that
required him to even more cautious when approaching this intersection.

[57]       
The defendants submit that the proper allocation of fault between Ms. Wong
and Mr. Ishii under s. 1(1) of the Negligence Act is “in
proportion to the degree to which each person was at fault”. Ms. Wong
submits that Mr. Ishii is more at fault because he failed to notice the
change of the light, was speeding and should not have been on the road after
sunset due to the restrictions on his license. Ms. Wong’s negligence is
that she did not see Mr. Ishii prior to making her turn. Ms. Wong had
stopped and seen the light change and other vehicles stop. She was entitled to
rely on all of the vehicles coming to a safe stop when the light turned yellow.

[58]       
While Ms. Wong was required to yield to the “immediate hazard”
presented by an oncoming vehicle, Mr. Ishii could only be an immediate
hazard on this late light if he was failing to obey the rules of the road and
stop for the yellow light: Ziani v. Thede, 2011 BCSC 1254.

[59]       
The defendants submit the apportionment of fault should be 60% to Mr. Ishii
and 40% to Ms. Wong.

Application of the Law to the Facts

[60]       
As noted earlier, there is a dispute about what colour the light was at
the time Ms. Wong commenced her left hand turn.

[61]       
Prior to the accident, Ms. Wong had been at a restaurant on North
Road for a family dinner. She was driving her mother and grandparents in a
sedan owned by her father, Kent Wong. Ms. Wong stopped at the intersection
of North Road and Cameron Road, and waited to turn left.

[62]       
Her father was following in a van with other family members and was also
stopped waiting to turn left at the intersection of Cameron Road and North
Road. There was a vehicle between Ms. Wong’s vehicle and Mr. Wong’s
vehicle.

[63]       
Ms. Wong and a number of her relatives, with the exception of her
father, testified that the light was yellow and traffic approaching the
intersection from the other direction had stopped when Ms. Wong commenced
her left turn.

[64]       
Mr. Wong’s evidence is different from the other members of his
family in that he says the light was red when Ms. Wong commenced her left
hand turn. At trial all of the members of the Wong family testified they had
been watching the lights prior to the accident occurring. However, when Ms. Wong
was asked whether or not any of her family members had seen the accident at her
examination for discovery, her response was that her mother said she thought
something came from above the vehicle but did not know what it was. As well,
she testified at her examination for discovery that she had asked her cousin,
Christopher Chan, whether he had seen the accident and he told her he did not
see it, and it was her understanding that her uncle, Sammy Kwan, had not seen
the accident.

[65]       
It is would not be surprising that Mr. Chan and Mr. Kwan did not
see the accident as they were passengers in the van which was two vehicles
behind Ms. Wong at the intersection. However, at trial, Mr. Chan and Mr. Kwan
testified they had seen the accident. Mr. Chan’s evidence was that the
vehicles in all three lanes travelling southbound had stopped before Ms. Wong
started her turn. That evidence contradicts Ms. Wong’s evidence that
traffic was stopped in only two of the lanes. Mr. Kwan did not have a
particularly good recollection of the incident as he thought the van was
directly behind Ms. Wong’s vehicle, and did not recall that there was a
white vehicle between the van and Ms. Wong’s vehicle.

[66]       
An independent witness, Trevor Madsen, testified he was travelling east
on Cameron Road and had stopped at the red light at North Road waiting to turn
left. His evidence is that the light was a long light and he was watching the
light on North Road waiting for it to turn yellow. While he was waiting for the
light on North Road to turn yellow he heard a big crash. His evidence is that
the light on North Road was still green when he heard the collision. Mr. Madsen’s
evidence is that after the accident, he spoke to the woman turning left and she
was hysterical. She told Mr. Madsen she had not seen the motorcycle.

[67]       
Mr. Madsen’s evidence was that he was in the left most of the two
lanes that could turn left from Cameron Road onto North Road. During
cross-examination Mr. Madsen’s statement to ICBC that he was unsure
whether the light was green was put to him. Mr. Madsen’s evidence was that
the adjuster from ICBC tried to put words in his mouth that he was unsure if
the light was green. However, Mr. Madsen was clear in his evidence at
trial that the light was green on North Road when he heard the crash.

[68]       
Mr. Ishii’s evidence is that the last time he looked at the light
before entering the intersection it was green. His evidence is that Ms. Wong’s
vehicle turned in front of him and he was unable to stop or avoid hitting the
vehicle.

[69]       
Ms. Wong suggests that Mr. Kwan’s evidence regarding the
colour of the light and whether the vehicles in the southbound lanes had
stopped is the most reliable evidence, and that Mr. Madsen’s evidence
should not be preferred. However, Mr. Madsen is the only independent
witness. Although Ms. Wong submits that the accident happened quickly and Mr. Madsen
was not paying attention to the progress of the southbound traffic, it is
apparent from his evidence that he was watching the lights as he was waiting
for them to change so he could proceed onto North Road. I accept that Mr. Madsen
was stopped at the intersection at the time, with no vehicles obscuring his
view, and that he was watching the lights on North Road. In my view, Mr. Madsen
was in the best position to see the colour of the lights at the time the
collision occurred.

[70]       
Mr. Kwan, Mr. Chan and Mr. Wong were two vehicles behind Ms. Wong’s
vehicle, and would not have had as clear a view of the intersection. As well,
as noted above, they had earlier indicated they had not seen the accident.
Having considered the evidence of the various witnesses, I accept Mr. Madsen’s
evidence as the most reliable as to the colour of the light when the accident
occurred. It is clear from the evidence that the collision occurred within
seconds of Ms. Wong starting her left hand turn. I accept Mr. Ishii’s
evidence that he did not have time to stop or swerve to avoid the accident when
Ms. Wong turned left in front of him.

[71]       
Having considered the evidence, I conclude that Mr. Ishii entered
the intersection when the light was green. I also conclude that Ms. Wong
failed to see the approaching motorcycle before commencing her left hand turn
and as a result failed to yield the right of way to Mr. Ishii as required.

[72]       
In my opinion, Ms. Wong has failed to establish that Mr. Ishii
was negligent in failing to avoid the collision. Although the evidence is that
he was driving at slightly above the speed limit, there is no evidence to
suggest that if Mr. Ishii had been travelling at 10 kilometres an hour
less he would have been able to avoid the collision given that he was almost in
the intersection when Ms. Wong started her turn and she failed to see him.
In the circumstances, I conclude that Ms. Wong is 100% liable for the 2010
accident.

 Liability for the 2012 Accident

[73]       
The 2012 accident occurred when Mr. Beach was merging into the left
lane from the right lane. The applicable section of the Motor Vehicle Act
provides:

151. A driver who is driving a vehicle on a laned roadway

(a) must not drive it from one lane to
another when a broken line only exists between the lanes, unless the driver has
ascertained that movement can be made with safety and will in no way affect the
travel of another vehicle,

[74]       
Mr. Ishii does not claim he suffered any physical injury from the
2010 accident and subsequent altercation with the defendant, Mr. Beach.
However, he alleges he suffered psychological injuries, including a phobic
reaction to riding as a passenger in a vehicle.

[75]       
As stated earlier, there is conflicting evidence regarding who caused
the first and second collisions between the two vehicles. Both Mr. Ishii
and Mr. Beach agree that the right lane of traffic had to merge into the
left lane because a work truck was stopped in the right lane.

[76]       
Mr. Ishii’s evidence is that he allowed a vehicle to merge ahead of
him, and he expected Mr. Beach’s vehicle to merge behind him. Instead, Mr. Beach
cut in front of his vehicle unexpectedly and he could not stop in time to avoid
hitting Mr. Beach’s vehicle. Mr. Ishii says he signalled at Mr. Beach
to pull over and instead Mr. Beach deliberately hit his vehicle again.

[77]       
Mr. Beach’s evidence is that it was his turn to merge and he began
to merge but before completing the merge, he was struck by Mr. Ishii’s
vehicle. Mr. Beach’s evidence is that he turned a corner on to a side
street to stop and give Mr. Ishii his information but Mr. Ishii hit
his vehicle again. As a result, he drove to where he was meeting Ms. Musgrave
rather than stopping.

[78]       
 There is also conflicting evidence as to what occurred after Mr. Beach
stopped his vehicle. All parties agree that Mr. Beach got out of his
vehicle with bear spray.

[79]       
Mr. Ishii’s evidence is that Mr. Beach got out of his vehicle
with both bear spray and an axe, and approached Mr. Ishii’s vehicle. Mr. Beach
sprayed the vehicle. At that point, Mr. Ishii reversed. Mr. Ishii’s
evidence is that Ms. Robbins was talking with a 911 operator who asked
them to obtain Mr. Beach’s licence plate number. His evidence is that he
drove towards Mr. Beach’s vehicle in order to obtain it, and Mr. Beach
hit his vehicle with the axe, and then threw the axe at the vehicle. He
retreated to wait for the police.

[80]       
Ms. Robbins testified that she was sitting the front passenger seat
at the time of the accident. Her evidence is that the cars were merging into
the left lane and Mr. Ishii had let a vehicle from the right hand lane
merge in front of them. Ms. Robbins expected Mr. Beach to merge
behind them. Instead he attempted to merge in front of them and Mr. Ishii
could not stop and ended up clipping him. Ms. Robbin’s evidence is that
when they signalled to Mr. Beach to pull over he sped up and clipped them
again. Ms. Robbins called 911 and they followed Mr. Beach down a side
street. Mr. Beach pulled into a residential driveway, and they attempted
to obtain his licence plate number. Ms. Robbins’ evidence is that Mr. Beach
got out of his vehicle with a hatchet and a can of spray. Mr. Ishii drove
his vehicle towards Mr. Beach’s vehicle so they could obtain his licence
plate number. Mr. Beach sprayed the vehicle, hit it with the hatchet, and
when they drove past him he threw the hatchet at them. After Mr. Beach hit
the vehicle with the hatchet and threw it at them, they parked farther down the
road and waited for the police to arrive.

[81]       
Mr. Kabela’s evidence is that Mr. Beach cut them off and Mr. Ishii
braked but could not stop in time to avoid colliding with the other vehicle. After
the accident, they gestured to Mr. Beach to pull over, but he hit them
again and then sped off. Mr. Ishii followed him in order to get his
licence plate number. Mr. Beach came at the vehicle with a can of spray. Mr. Ishii
backed up and then drove forward again to get the licence, and Mr. Beach
came at the vehicle with an axe. Mr. Beach threw the axe at them and it
went through the back window, which broke and the axe landed on Mr. Kabela’s
lap.

[82]       
Mr. Beach testified that he felt threatened after he was struck the
second time, so he did not stop to exchange material. Instead he drove to where
he was to meet Ms. Musgrave, and got out of the vehicle with bear spray to
defend himself. He also told Ms. Musgrave to call the police. He denies
having an axe in his hand when he got out of the vehicle the first time. He
agrees he approached Mr. Ishii’s vehicle but says he was reacting and
acting in self-defence. Mr. Beach’s evidence is that Mr. Ishii drove
at him and he went back to his vehicle to get an axe. Mr. Beach testified
he struck Mr. Ishii’s vehicle with the axe and it stuck in the vehicle, so
he approached the vehicle spraying it with bear spray in order to get his axe
back. Once Mr. Beach had the axe back, Mr. Ishii came towards him and
the axe slipped out of his hand and went into the back window of Mr. Ishii’s
vehicle. Mr. Beach denied intending to throw the axe at the vehicle.

[83]       
After Mr. Beach hit the vehicle and threw the axe at the vehicle, Mr. Ishii
moved farther away from Mr. Beach. Shortly afterwards, the police arrived
and the incident ended.

[84]       
Ms. Musgrave testified that Mr. Beach was following her to her
mechanic when the accident occurred. She did not see the initial collision
between the two vehicles. Ms. Musgrave’s evidence was that she drove
around the work truck on Highway 33 and turned on to Davie Road. Once she was
on Davie Road, she heard a loud screech and a bang. She pulled into the
driveway of her mechanic, and Mr. Beach pulled in right afterwards. She
saw another vehicle coming down the street with its bumper partially off. Ms. Musgrave
observed the vehicle drive towards Mr. Beach and then reverse and come
towards him again. Ms. Musgrave called 911 and when she turned again Mr. Beach
had the axe in his hands. She agreed it was possible the people in the other
car were trying to get Mr. Beach’s licence as they were going back and
forth.

[85]       
Jody Pritchard witnessed the encounter between Mr. Beach and Mr. Ishii
after Mr. Beach got out of his vehicle. Mr. Pritchard was at home
when he heard a scraping noise. Mr. Pritchard testified that he got up to
see what was causing the noise and saw a vehicle with the front bumper
partially off. His evidence is that Mr. Beach was running at the vehicle,
and vehicle drove towards him. Mr. Beach eventually got an axe and started
hitting the vehicle, and smashed the back driver’s side window. The vehicle
backed off and the police arrived. Mr. Pritchard said the vehicle came at Mr. Beach
a few times and Mr. Beach had to get out of the way.

[86]       
Having considered the evidence, I accept the evidence of Mr. Ishii,
Ms. Robbins, and Mr. Kabela. I find that Mr. Beach cut Mr. Ishii
off and that Mr. Ishii struck him despite attempting to brake and avoid
the colliding with him. Mr. Beach’s explanation of why he did not pull
over after the first accident does not make sense. The work truck was blocking
traffic and the lane ahead of it would have been empty, so Mr. Beach could have
pulled over ahead of it. I do not accept his evidence that Mr. Ishii
deliberately hit him a second time. I accept the evidence of Mr. Ishii, Ms. Robbins
and Mr. Kabela that Mr. Beach hit their vehicle a second time and
then took off and they followed.

[87]       
In my view, Mr. Beach is at fault for the two accidents in 2012. However,
it is my view both Mr. Ishii and Mr. Beach are at fault for the
incident that occurred after Mr. Beach got out of the vehicle. Mr. Beach
was at fault for getting out of the vehicle with a can of bear spray, and Mr. Ishii
was at fault for driving towards him after he stopped. Mr. Ishii could
have simply waited for the police to arrive and stayed back from where Mr. Beach
was stopped.

[88]       
In my view, the responsibility for the incident that occurred after Mr. Beach
got out of the vehicle should be divided equally as both men acted
inappropriately.

What are the nature, duration and extent of the injuries Mr. Ishii
suffered in the two accidents?

Plaintiff’s Position

[89]       
Mr. Ishii points to the fact he sustained the following injuries in
the 2010 accident:

·      
A laceration to the upper lip requiring sutures;

·      
An undisplaced fracture to the scaphoid bone of the left wrist;

·      
Displaced fractures of the right radius and ulna;

·      
A grade one open fracture to the right femur; and

·       A
puncture wound to the right hamstring.

[90]       
As a result of the injuries he sustained, Mr. Ishii had a number of
surgical procedures, including;

·      
Irrigation, debridement and statically locked
intramedullary nailing of the right femur with 2 screws at the pelvis and 3
screws above the knee;

·      
Open reduction and internal fixation of the
right distal radius using a plate and screws;

·      
Open reduction and internal fixation of the
right distal ulna using a k wire; and

·       Percutaneous screw fixation of the left wrist.

[91]       
When Mr. Ishii was released from hospital he had to move back in with
his mother who cared for him. He required assistance with his daily tasks,
including eating, dressing and bathing. He was wheelchair bound for the first
while. He moved from his wheelchair to a walker, and then to crutches and
finally a cane.

[92]       
Mr. Ishii points to the fact that his mood declined when he was
unable to return to his job at Canadian Tire. At around the same time his taxi
account was cut off. Mr. Ishii’s evidence is that he stopped going to
physiotherapy because he had to walk to catch a bus, followed by what he
described as painful physiotherapy, and then bus and walk back to his house. Mr. Ishii’s
evidence was that the commute was both painful and demoralizing.

[93]       
Mr. Ishii takes the position that he has made reasonable attempts
to exercise since the 2010 accident. Mr. Ishii attended physiotherapy
sessions for both his leg and his hands. While he has not followed all the
recommended physiotherapy programs, he has continued to exercise by riding his
bicycle, and doing activities with his friends such as hiking. Mr. Ishii
described the physiotherapy for his hand as very painful. Mr. Ishii says
that the traditional physiotherapy programs recommended did not provide him
with much benefit. However, Mr. Ishii has returned to aquatherapy recently
as he receives some benefit from it.

[94]       
Mr. Ishii describes his current condition as quite physically
restricted. He has returned to some of his pre-accident activities such as dirt
biking and paintball, but is limited in his ability to do those activities. Mr. Ishii
says his right wrist continues to hurt if he performs a twisting motion or
lifts something heavy. He has pain when he bumps his wrist.

[95]       
Mr. Ishii says he still suffers from pain in his right leg, mainly
behind the kneecap. Mr. Ishii reports that he can walk a bit, but can only
run for short distances because of pain in his leg. He cannot squat because it
hurts his right leg.

[96]       
Mr. Ishii says the medical report of Dr. Anton supports a
finding that he suffers from chronic pain and a permanent disability to his
dominant right wrist and right leg as a result of the injuries he sustained in
the 2010 accident.

[97]       
As well, Mr. Ishii says he suffers from a depressed mood as a
result of sustaining the injuries in the 2010 accident. His depressed mood was
exacerbated by the 2012 accident. As a result of the 2010 and 2012 accidents, he
continues to suffer from vehicle anxiety symptoms when he is a passenger, and
refuses to ride in the back seat.

The Wong Defendants Position

[98]       
The Wong defendants concede that the 2010 accident caused the physical
injuries complained of, and that Mr. Ishii suffers from some residual
problems. They concede that Mr. Ishii has suffered a permanent partial
disability of his right wrist as a result of the motor vehicle accident, and
has some residual problems with his right leg. However, the defendants take
issue with Mr. Ishii’s assertion that he suffers from ongoing depression
and anxiety as a result of the accident.

[99]       
As well they take the position that if Mr. Ishii’s wrists and leg
continue to impair his work, household, and recreational activities that is
because he has not followed the recommended physiotherapy and exercise programs.
The Wong defendants say that Mr. Ishii has not reached full medical
recovery from his injuries because he has failed to follow the recommended
physiotherapy and exercise programs.

[100]     They point
to the fact that Mr. Ishii agrees he has not done any regular exercise
since the 2010 accident. As well, he agrees that all of the doctors have
recommended doing regular exercise and he has not followed through.

[101]     The Wong
defendants say that Mr. Ishii has also not followed the home exercise
instruction and worksheets he has been given.

[102]     The Wong
defendants say Mr. Ishii’s left wrist seemed to improve and resolve. The issue
is with the function of his right wrist. Mr. Ishii complains of pain, but Dr. Perey’s
evidence is that pain could be relieved with surgery to remove the hardware.
However, the Wong defendants concede that even if the hardware is removed, Mr. Ishii
will be left with some functional impairment in his right wrist.

[103]     The Wong
defendants point to the fact that neither Dr. Anton nor Dr. Perey
thought there was a risk of arthritis developing in either his wrists or his
leg as the joints had not been impacted by the injuries.

[104]     The Wong
defendants submit there is insufficient evidence to indicate significant
depression. The only evidence of depression comes from a neuropsychologist, Dr. Wilkinson
and seems be largely based on a questionnaire filled out by Mr. Ishii and
which Dr. Wilkinson agreed should not be the sole basis of a diagnosis.
Dr. Wilkinson is not a medical doctor. The diagnosis is only of “depressed
mood”. There is no suggestion that the level of depressed mood warranted
medical intervention, and no evidence of a medical doctor to support a
diagnosis of any form of mood disorder.

[105]     Mr. Ishii’s
friends report on observed pain behaviours but little on a mood disorder. It is
obvious Mr. Ishii has a good network of friends with whom he socializes
regularly.

Mr. Beach’s position

[106]     Mr. Beach
takes the positon that Mr. Ishii did not suffer any injuries as a result
of the 2012 accident or the incident that followed. Mr. Beach says the
only expert evidence regarding the psychological injuries Mr. Ishii
asserts he sustained in the 2012 accident is the evidence of Dr. Wilkinson,
a neuropsychologist.

[107]     There is
no diagnosis by a medical doctor to support a diagnosis of any form of mood
disorder. Mr. Beach submits there is insufficient evidence to indicate
significant depression or anxiety.

Applicable Law

[108]     In order
to establish causation Mr. Ishii must prove on a balance of probabilities
that but for the accident he would not have suffered the injury he complains
of.

[109]     The
Supreme Court of Canada considered causation in Clements v. Clements,
2012 SCC 32. The Court confirmed that the basic test for determining causation
remains the “but for” test articulated in Snell v. Farrell, [1990] 2
S.C.R. 311 and Athey v. Leonati, [1996] 3 S.C.R. 458. The plaintiff
bears the burden of proving that but for the negligent act or omission of the
defendant the injury would not have occurred.

[110]     In Athey at para.35, the Court states that the general rule
is the plaintiff must be returned to the position he or
she would have been in, with all of its attendant risks and shortcomings, and
not a better position.

Application of the Law to the Facts

[111]     All of the
doctors who examined Mr. Ishii agree he sustained fractures to his both arms
and his right leg in the accident. The fractures required the surgical repairs
including the insertion of hardware in both arms and his right leg.

[112]     The
evidence is Mr. Ishii attended physiotherapy and other rehabilitation
treatments for the injuries following the accident.

[113]     Mr. Ishii’s
family doctor, Dr. Julia Reynolds, provided an opinion and testified at
trial. Dr. Reynolds’ evidence is that Mr. Ishii was in good health
prior to the 2010 accident. After the accident, Mr. Ishii attended at her
office on a fairly regular basis until May 4, 2011. Dr. Reynolds noted Mr. Ishii
had the k wire removed on August 16, 2011. At the time of writing her report on
April 24, 2012, Dr. Reynold had not seen Mr. Ishii since November 18,
2011, at which time he was complaining of grinding and pain in his knee at the
limits of motion. As of November 2011, Mr. Ishii had regained his
independence with self-care, driving, walking and the ability to return to his
usual social activities. Dr. Reynolds reports that Mr. Ishii appeared
very deconditioned. Dr. Reynolds notes that Mr. Ishii will need to
maintain his physical fitness and have a gym pass or alternative form of
regular strengthening routine. Dr. Reynolds is of the opinion that Mr. Ishii’s
ability to do heavy work or repetitive work with his hands is impaired as a
result of his injuries. As well, it is Dr. Reynolds’ opinion that as a
result of the hardware in his right wrist and femur he will most likely have
some degree of permanent loss of flexibility and range of motion in those limbs.
Dr. Reynolds testified that although there could hopefully be some increase
in his conditioning through fitness programs, Mr. Ishii had probably
achieved his optimal level of recovery.

[114]     Dr. Reynolds
testified that after November 18, 2012, she saw Mr. Ishii two more times
in 2012 and on February 2, 2015. On February 2, 2015, Mr. Ishii was having
difficulty performing squats with his right leg. Dr. Reynolds continues to
recommend that Mr. Ishii attend physiotherapy and do strengthening
exercises.

[115]     Dr. Reynolds’
opinion is that it is likely Mr. Ishii has an increased risk of degenerative
arthritis, but would defer to specialists. Dr. Anton and Dr. Perey
are both of the opinion that it is unlikely the injuries Mr. Ishii
sustained will result in an increased risk of arthritis.

[116]     Dr. H.A.
Anton, an expert in physical medicine and rehabilitation, examined Mr. Ishii
at the request of his counsel on October 3, 2011. At the time Mr. Ishii
saw Dr. Anton his biggest complaint was fluctuating pain in the right
knee, which was exacerbated by squatting, kneeling or walking. Mr. Ishii
also reported fluctuating pain in his right wrist, which was exacerbated by
lifting heavy objects. Dr. Anton found there was muscle wasting in the
quadriceps of both legs, particularly on the right. Mr. Ishii reported
mild tenderness in his right knee. As well, Mr. Ishii had decreased
supination (rotating the forearm so the palm faces the ceiling) and palmar
flexion in the right arm and wrist. Dr. Anton’s opinion at the time of his
examination was that Mr. Ishii should continue with exercise to build up
his quadriceps muscles. Dr. Anton is of the opinion that exercise is
unlikely to increase the function in Mr. Ishii’s right wrist, and will not
improve the range of motion in his right wrist.

[117]     Dr. Anton
opined that some of the pain Mr. Ishii was experiencing in his right leg
could be as a result of the rod in his right femur. The rod is locked in place
by two screws at the hip and three at the knee. Sometimes the screws can stick
out and cause irritation because they disrupt the smooth tracking of the knee. If
the pain continues Mr. Ishii could discuss with the orthopaedic surgeon the
possibility of removing the hardware from his leg. Dr. Anton testified
that surgeons are reluctant to take out rods but might remove a screw if it is
causing pain. However, in Dr. Anton’s experience, removal of hardware
sometimes leads to reduced pain, but infrequently results in resolution of
pain. Dr. Anton notes that Mr. Ishii reported he did not have a
reduction in pain when Dr. Perey removed the pins from the ulna in the
right wrist.

[118]     Dr. Anton’s
opinion is that Mr. Ishii has been left with decreased supination and
wrist flexion which is unlikely to improve. Mr. Ishii’s residual
limitation in his right wrist and forearm should not restrict his participation
in his usual day to day activities. However, the limitations make it more
difficult for Mr. Ishii to perform heavy or repetitive lifting with the
forearm, do exercises such as push ups, or manage activities that require normal
supination such as racquet sports and turning a screw driver.

[119]     Dr. Anton’s
opinion is that Mr. Ishii has some permanent impairment as a result of his
injuries. As of the date of his report in October 2011, Dr. Anton was of
the view that Mr. Ishii had not reached maximum medical improvement, and
it could take six to twelve months for him to reach that point. Dr. Anton
did not expect Mr. Ishii to regain full strength or achieve a full
recovery. However, Dr. Anton was of the opinion that Mr. Ishii would probably
have some improvement of his symptoms with exercise. The fact that Mr. Ishii’s
pain has persisted this long increases the likelihood he will have pain on a
permanent basis with or without participating in an exercise program.

[120]     Dr. Perey
also provided a report and testified. Dr. Perey’s evidence is that Mr. Ishii
suffered a grade one open fracture of his right femur, a displaced fracture of
his right distal radius and ulna, and an undisplaced fracture of his left
scaphoid, all of which were treated surgically. Mr. Ishii was hospitalized
for two weeks and attended physiotherapy for eight months. Dr. Perey
removed a k-wire from Mr. Ishii’s right ulna on August 16, 2011. In March
2012, Dr. Perey reported that Mr. Ishii was complaining of low grade
discomfort to his right thigh and knee, which was aggravated by prolonged
standing or walking. He also had some knee pain. Dr. Perey is of the
opinion that most of Mr. Ishii’s right wrist pain would likely be relieved
if the hardware was removed.

[121]     Dr. Perey
notes that Mr. Ishii had a very high energy injury to his right leg to
result in the type of open fracture he sustained. Mr. Ishii’s residual
symptoms are quite common following this type of injury. In Dr. Perey’s
opinion the likelihood of Mr. Ishii achieving complete resolution of his
symptoms in his thigh in the future is very low and he will likely always have
some discomfort in his right leg related to the injury. The strength and
discomfort in Mr. Ishii’s leg may be improved with exercise. Dr. Perey
noted that Mr. Ishii would likely experience pain if he exercised, which
would be a drawback to doing exercise, but if he could push through the pain he
would likely obtain some benefits. However, it is Dr. Perey’s opinion that
no matter how much exercise he does, Mr. Ishii will still have discomfort
in his leg due to the nature of the soft-tissue injury which resulted from the
open fracture of his femur.

[122]     As of
March 6, 2012, Dr. Perey’s opinion was that Mr. Ishii had a very
satisfactory recovery, but that he would have ongoing limitations because of
the injuries he sustained in the 2010 accident. While Dr. Perey agreed he
would not restrict Mr. Ishii from doing particular tasks or occupations, it
is likely he will be unable to do certain activities because of his symptoms. Dr. Perey
explained he would not restrict Mr. Ishii from doing certain activities
because it would not injure him more but that does not mean Mr. Ishii will
be able to do those activities. Dr. Perey’s opinion is that it would be in
Mr. Ishii’s best interest to pursue a vocation where prolonged standing
and exposure to cold are not required. Mr. Ishii lacks 10% supination in
his right wrist which will affect him in occupations and activities where full
supination is required. Dr. Perey does not expect Mr. Ishii
supination or range of motion in his right wrist to improve.

[123]     Dr. Rosemary
Wilkinson, a neuropsychologist provided a report and testified at the request
of Mr. Ishii’s counsel. Dr. Wilkinson’s opinion is that Mr. Ishii
had a significantly depressed mood, with physiological symptoms of depression, as
a result of the ongoing restrictions and pain he experiences from the multiple
orthopaedic injuries he sustained in the 2010 accident. As well, Mr. Ishii
shows a significant phobic response concerning vehicles and being a pedestrian,
which Dr. Wilkinson attributes to the 2012 accident. Dr. Wilkinson’s
opinion is that Mr. Ishii’s depressed mood is consistent with the
disability and change of occupation aptitude resulting from his orthopaedic injuries,
as well as continued pain. Dr. Wilkinson commented that a report by Joanne
Woodward, dated July 18, 2011 where she reported Mr. Ishii in bed at the
time she arrived, and that he did not feel he had any reason to get out of bed
or out of the house is consistent with a depressed mood.

[124]     I am of
the view the medical evidence is consistent with Mr. Ishii’s evidence that
he suffers from ongoing symptoms of pain in his right leg and right wrist which
continue to impact his ability to perform his home, work and recreational
activities as a result of the injuries he sustained in the 2010 accident.
Although Mr. Ishii may have some improvement with further physiotherapy
and exercise, none of the medical experts are of the opinion that he will fully
recover. Rather, the consensus of the medical experts is that Mr. Ishii
will continue to experience pain and discomfort in his right leg and right
wrist. The medical evidence is that Mr. Ishii has suffered a permanent
partial disability to his right dominant wrist which will restrict his ability
to do repetitive weight bearing and twisting movements or carrying that require
full supination or range of motion with his right hand and wrist. Mr. Ishii
will also continue to have pain and discomfort in his right leg with prolonged
use, including prolonged standing.

[125]     As well,
the evidence supports a finding that Mr. Ishii suffers from some ongoing
mood disturbance in the form of depressed mood as a result of the 2010 and 2012
accidents, and some phobic anxiety as a result of the incident following the
2012 accident.

[126]     In my
view, it is clear from a review of the evidence that but for the 2010 accident,
Mr. Ishii would not be suffering from chronic pain in his right leg and
right wrist, and the associated ongoing mood disturbance.

What is the appropriate award of general damages for pain and suffering?

Legal Framework

[127]     A
plaintiff is entitled to reasonable damages for his or her pain and suffering.
The plaintiff should be placed in the same position he or she would have been
if the accident had not occurred, but not in a better position: Parypa v.
Wickware, 1999 BCCA 88, at para. 29.

[128]    
In Stapley v. Hejslet, 2006 BCCA 34, the Court noted that
a non-pecuniary award will vary to meet the specific circumstances of each
case, and set out the factors to be considered in making such an award as
follows:

[46] The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes: 

(a) age of the plaintiff; 

(b) nature of the injury;

(c) severity and duration of pain; 

(d) disability; 

(e) emotional suffering; and 

(f) loss or impairment of life; 

I would add the following factors, although they may arguably
be subsumed in the above list: 

(g) impairment of family, marital and social relationships;

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as a factor that should not,
generally speaking, penalize the plaintiff:  Giang v. Clayton,
[2005] B.C.J. No. 163, 2005 BCCA 54).

Plaintiff’s Position

[129]     Mr. Ishii
submits the appropriate range for the award of general damages is $150,000 to
$175,000. The evidence demonstrates that he has suffered a permanent injury to
his right wrist and right leg as a result of the 2010 accident. Mr. Ishii suffered
from bouts of depression following by the 2010 accident which were worsened by
the 2012 accident, and continues to have vehicle related anxiety.

[130]     Mr. Ishii
submits that awards in cases where the plaintiff has suffered similar injuries
support the suggested range. He relies on Stapley; Kreller (Guardian
ad litem of) v. Scholten, [2000] B.C.J. No. 1485; Tong v. Ip,
2004 BCSC 861; Han v. Chahal, 2013 BCSC 1575; Hildebrand v. Musseau,
2010 BCSC 1022.

[131]     Mr. Ishii points to the fact that he was only 18 and had his
whole life ahead of him when he was severely and permanently injured by Ms. Wong’s
negligence. He had the makings of a successful auto mechanic. He was
independent and active in hiking, bicycling and paintballing. His friends,
family and co-workers paint a picture of an able and ambitious young man.

[132]     As a result of the 2010 accident, Mr. Ishii has developed chronic
pain, depression and anxiety. Mr. Ishii’s depression and anxiety were
aggravated by the 2012 accident.

[133]     Mr. Ishii submits that therefore damages for his psychological
injuries cannot be divided between the defendants. Mr. Ishii points to the
fact that the defendants objected to any question put to Dr. Wilkinson as
to the relative contributions of the two accidents to Mr. Ishii’s vehicle
anxiety and depression. While all but a small degree of his vehicle anxiety
symptoms subsided after his last counselling session on June 25, 2013, he is
still somewhat fearful of being a passenger and refuses to travel in a rear
seat.

[134]     Currently, nearly five years post-accident, Mr. Ishii continues
to suffer pain in his right wrist and right leg. He is unable to stand for long
periods, squat, crouch or lift. When he walks more than a short distance, his
knee locks up and is very painful, such that he needs to manually unlock it. He
limps. He has permanently lost 10 degrees of supination in his right wrist. He
suffers from chronic pain, made worse by cold weather. He has vehicle anxiety.
He no longer enjoys his pre-accident pastimes.

Position of the Wong Defendants

[135]     The Wong
defendants submit the appropriate award of damages for pain and suffering for
the injuries Mr. Ishii sustained in the 2010 accident is in the range of
$110,000 to $125,000. The Wong defendants rely on Cook v. Symons, 2014
BCSC 1781; Isbister v. Delong, 2014 BCSC 1395; Han; Taylor v.
Depew, 2012 BCSC 1403; and Hildebrand, as support for that range of
damages.

[136]     Mr. Ishii
is now 22 years of age. He was 18 at the time of the 2010 accident. There is no
doubt his life has been affected by his injuries. The Wong defendants submit
that although Mr. Ishii will have some degree of permanent discomfort,
from his evidence it appears that he is not in constant pain. He has been
offered surgery on his wrist to remove any continuing pain in the wrist and has
not been so distressed by the condition of his wrist to have the hardware
removed. While he faces some permanent limitations he has not yet reached
maximum medical recovery. All that stands in the way of doing so is persistent
attention to exercise.

[137]     The Wong
defendants point to the fact that Mr. Ishii is able to work, go to school
and train for a career. Mr. Ishii has considerable resources including
above average reading and communication abilities, good social skills, and a
determined work ethic. Mr. Ishii’s strengths were listed in a report by a
vocational consultant, Niall Trainor, who conducted a vocational of assessment
of him, and include:

·      
Reading comprehension similar to that of men enrolled in college
or university;

·      
Manual and technical skills;

·      
Serviceable oral communication skills;

·      
Well developed computer literacy;

·      
Specific social skills including sales and customer service
skills;

·      
A positive work ethic and achievement motivation; and

·      
Serviceable job search skills.

[138]     Nothing
has been mentioned about a loss of social life. In November 2011, Dr. Reynolds
was of the opinion that Mr. Ishii had made a timely recovery back to his
usual lifestyle.

[139]     The Wong
defendants concede that Mr. Ishii does have pain complaints which he does
not appear to exaggerate. However, the Wong defendants submit that if Mr. Ishii
had he properly applied himself to his strengthening and aerobic fitness
program he could be expected to have even greater function.

[140]     Any
assessment of non-pecuniary damages must take into account the issue of
mitigation. The Wong defendants argue that while the assessment of $110,000-$125,000
should not be reduced greatly to take into account mitigation, if a larger
amount for non-pecuniary damages is awarded it should be reduced to take into
account the fact that Mr. Ishii has failed to mitigate his damages by not
exercising as he should.

Position of Mr. Beach

[141]     Mr. Beach
takes the position that Mr. Ishii has conceded that he did not suffer any
physical damages in the 2012 accident. The only claim is for a phobic reaction
for nervousness as a passenger in cars. Any lingering issues are related to the
axe issue alone. Mr. Beach submits that the injuries are de minimus.

[142]     Mr. Beach
argues that there was no evidence that would justify a finding that Mr. Ishii
developed anxiety as a result of the collisions between the vehicles. Clearly the
initial collisions on Highway 33 did not terrify Mr. Ishii as he pursued Mr. Beach.

[143]     After the
vehicle collision all further irrational unlawful conduct was initiated by Mr. Ishii.
He is the one who drove his car at Mr. Beach who by then was on foot. If Mr. Ishii
suffered any damages as a result of the incident which occurred after Mr. Beach
got out of his vehicle, it was his fault for driving his vehicle at Mr. Beach.
Mr. Beach was acting in self-defence as a result of Mr. Ishii’s
aggressive conduct. Accordingly, no damages should be awarded as a result of
any psychological injuries Mr. Ishii alleges he suffered.

Application of the law to the facts

[144]     The Wong defendants
admit that Mr. Ishii suffered fractures to his right and left wrists, and
right femur in the 2010 accident. As well, the Wong defendants concede Mr. Ishii
has suffered a permanent partial disability to his right wrist as a result of the
loss of supination and range of motion, and to his right leg.

[145]     The Wong
defendants do not assert that Mr. Ishii is exaggerating. Rather they take
the positon that he would have had better results if he had continued with his
physiotherapy and exercise programs.

[146]     A number
of lay witnesses testified regarding Mr. Ishii’s ongoing limitations. For
example, his mother testified that Mr. Ishii is unable to turn a deadbolt
so they have stopped using one.

[147]     The
evidence is that Mr. Ishii and his friends repair cars as a hobby. Prior
to the 2010 accident, Mr. Ishii was able to do all of the various tasks
associated with repairing automobiles. Since the 2010 accident, his friends
have had to help him with removing bolts, and tasks that require squatting and
lifting. Mr. Ishii and his friends go to junk yards to obtain parts for
their projects. Prior to the 2010 accident, Mr. Ishii was able to
dismantle the part he wanted and carry it out of the yard. The evidence is that
he can no longer do this, and needs assistance both dismantling and carrying
parts. As well, Mr. Ishii has been unable to return to other pre-accident
activities, such as paint ball, to the same extent he could before the
accident.

[148]     In this
case, the nature of the injury was severe. Mr. Ishii was young when he was
injured in the 2010 accident. Mr. Ishii has been left with chronic pain
and permanent partial disability of his right dominant wrist, and chronic pain
in his right leg. The permanent partial disability in his right dominant wrist impacts
his ability to rotate items and do heavy repetitive tasks. He is unable to
stand or walk for long periods of time, and cannot run for any distance. As a
result of the injuries he sustained in the 2010 accident, Mr. Ishii has
not been able to return to some of the recreational activities he enjoyed
before and is precluded from trying many new recreational activities, such as racket
sports, and climbing, and engaging in activities that require repetitive heavy
lifting, or full supination of his right hand. Mr. Ishii had to move back
home, and lost his independence as a result of the accident. He has suffered
from a depressed mood as a result of his ongoing pain and restrictions.

[149]     As set out
above, both Mr. Ishii and the Wong defendants have provided cases which
support their positions regarding the appropriate award of general damages for
the 2010 accident. In my view, the case that is most similar to the case at bar
is Hildebrand. In Hildebrand, a 21 year old auto collision repair
technician suffered fractures to his right ankle, right wrist and left femur,
in addition to soft tissue injuries, abrasion and chipped teeth. The plaintiff
underwent surgery to repair the fractures and spent six days in hospital. He
was left with ongoing pain and a partial disability. General damages were
assessed at $135,000. In my view, the injuries and residual problems Mr. Ishii
suffers are slightly more serious. However, as noted in Stapley, while
other cases are helpful, an award will vary in each case to meet the specific
circumstances of the case.

[150]     Having considered
the factors set out in Stapley, it is my view that the appropriate award
for pain and suffering arising from the injuries Mr. Ishii sustained in
the 2010 accident is $150,000. I am of the view that mitigation should be
considered separately.

[151]     In my opinion,
Mr. Ishii has not established that he has suffered any injuries in the 2012
accident. It is clear from the evidence, that Mr. Ishii’s mood was depressed
prior to the 2012 accident. I accept Dr. Wilkinson’s evidence that Mr. Ishii’s
depressed mood is a result of the ongoing pain and limitations he suffers as a
result of the injuries he sustained in the 2010 accident. Although his
depressed mood may have been exacerbated to some degree by the 2012 accident,
there is no evidence to what degree the 2012 accident contributed to his
depressed mood. As a result the damages for his depressed mood cannot be
divided between the two accidents. In any event, it appears that Mr. Ishii’s
depressed mood has improved and it was much worse in 2011 when he did not have
a job and was feeling stuck at home.

[152]     The
evidence is that although Mr. Ishii has some anxiety being a passenger in
a vehicle he has ridden as a passenger on numerous occasions. In my view, Mr. Ishii
has not established that any award should be made for the minor ongoing anxiety
he has. Accordingly, I conclude that Mr. Ishii has not established that he
has suffered any compensable damages as a result of the 2012 accident.

What amount, if any, should be awarded for the loss of past and future
earnings or income earning capacity?

Past Loss of Income and Income Earning Capacity

Plaintiff’s Position

[153]     Mr. Ishii
advances a claim for past loss of income and income earning capacity in the
amount of $74,970 based on a report prepared by Sergiy Pivnenko, an economist.

[154]     Mr. Ishii
says his plan at the time of the 2010 accident was to become either a pilot or
an automobile mechanic. Mr. Ishii says he would have worked at a minimum
wage job full time from August 24, 2010 to December 31, 2011. Mr. Ishii
says that the evidence supports a finding that he would have started a junior
automotive position on January 1, 2012, earning $12 per hour until mid-2013. He
would have then obtained a position as an automotive service technician,
beginning mid-2013.

The Wong Defendants’ Position

[155]     The Wong
defendants concede that Mr. Ishii lost income over the 12 months following
the accident. Mr. Ishii clearly did not work over those 12 months and the
accident is the main reason if not only reason. Initially, Mr. Ishii was
incapable of working and the injuries from the accident were the sole reason
for not working. Even when he started to look to return to work in May 2011, it
is clear Mr. Ishii had not regained full strength. The Wong defendants
agree that after Mr. Ishii lost his job at Canadian Tire, he was in a poor
state to obtain other employment in the summer of 2011, and therefore the 2010
accident clearly has significantly contributed to a past loss of income in
2011.

[156]     However,
the Wong defendants take the position that Mr. Ishii has not established
that he would have been working full time as August 24, 2010. Mr. Ishii
had worked part-time up until the time of the accident. There is no evidence
that full time work would have been offered to Mr. Ishii and no evidence
that he was looking for additional or supplementary work at the time of the
accident. Mr. Ishii did not call anyone from Canadian Tire where he was
working part-time to testify regarding whether or not additional work would
have been available. The Wong defendants say Mr. Ishii’s assertion that
his loss in 2011 should be based on working 40 hours per week is not realistic.
A more realistic approach would be for the loss to be calculated on the basis
that Mr. Ishii would have worked 25 to 30 hours per week.

[157]     Mr. Ishii
was clearly capable of working in 2012, as he found a job at Lordco and then
lost it. His subsequent employment cannot be blamed on the Wong defendants. The
assertion that Mr. Ishii’s 2013 loss should be based on becoming an
automotive mechanic is faulty as there is no certainty that Mr. Ishii
would have had back and core strength required to perform the physical aspects
of an automotive mechanics job if the 2010 accident had not occurred.

[158]     The Wong
defendants argue that if Mr. Ishii had the conditioning to work in this
field before the accident, there is no reason he cannot regain it with exercise
after the accident. It is not his back and core that were injured in the
accident. On the other hand, if he never had the strength, there is no reason
to believe he was going to be able to acquire the strength to do jobs in this
classification absent the accident. Mr. Ishii’s grades for PE do not
reflect an enthusiasm for physical education. Mr. Ishii may have been able
to gain core strength, but it is not certain that he would have been able to or
had the desire to put in the exercise needed to do so. It is up to Mr. Ishii
to prove his case and this aspect of conditioning is a significant hole if his
case is the assertion that he has lost an ability to work as an automotive
service technician.

[159]     The Wong
defendants submit the following table sets out a more reasonable award for past
income loss, taking into account the amounts Mr. Ishii has earned during
the period:

[160]    
Summary of past income losses

Applicable Law

[161]     In Smith
v. Knudsen, 2004 BCCA 613, the Court confirmed the approach to be taken to
hypothetical events such as loss of opportunity for past and future earnings. A
plaintiff must prove that an injury had an effect on his or her ability to earn
income on a balance of probabilities, but once that has been established,
hypothetical events need not be proved on a balance of probabilities. Rather,
they are to be given weight based on their likelihood.

Application of the Law to the Facts

[162]     As noted
above the Wong defendants have conceded that the 2010 accident resulted in Mr. Ishii
not being able to work for at least a year. In my view, the evidence supports
the Wong defendants’ position that it is unlikely Mr. Ishii would have
commenced full-time employment on August 24, 2010. While his evidence is that
he was hoping to get full time work at Canadian Tire in the fall, Mr. Ishii had
not received any confirmation that a full time position was available.

[163]     However, I
do not agree with the Wong defendants that Mr. Ishii would not have sought
full time employment commencing in the fall of 2010. Mr. Ishii graduated
from high school in June 2010, and was living independently at the time of the
2010 accident. His parents provided him with financial assistance while he was
in high school but he also worked part-time.

[164]     In my
view, it is reasonable to assume that Mr. Ishii would have continued to
work throughout 2010 and by January 2011 would have obtained full time
employment.

[165]     Although
the Wong defendants assert that Mr. Ishii has not established he would
have been physically capable of carrying out the functions of an automotive
mechanic if he had not been injured, there is evidence that Mr. Ishii was
able to do the heavy work required prior to the 2010 accident.

[166]     Mr. Ishii
had worked in Canadian Tire in the parts department. His work included heavy
tasks such as unloading and storing tires. As well, he excelled in automotive
shop at high school. His teacher and a fellow student both testified that Mr. Ishii
was able to carry out all the physical tasks required.

[167]     I agree
that by 2012 Mr. Ishii was able to work, as evidenced by the fact he
obtained a job at Lordco. His reasons for leaving the job had nothing to do
with the impact of the accident.

[168]     However,
it is clear from the evidence that as a result of Mr. Ishii’s chronic pain
and permanent partial disability he was unable to do some of the heavier work
of an automotive mechanic. While the Wong defendants say the reason Mr. Ishii
could not keep the Budget Auto Centre job was because he had poor core and back
strength and was deconditioned, it is apparent from the medical reports and the
functional capacity report prepared by Bruce Hunt, that Mr. Ishii has
limitations in his wrist which restrict his ability to turn a screw driver, and
do heavy repetitive lifting. Although Mr. Hunt found that Mr. Ishii
was deconditioned, he also noted restrictions in his supination, as well as his
right leg and knee, compensatory posturing, and biomechanical breakdown. As
noted by Dr. Perey, it is likely Mr. Ishii will have ongoing
discomfort in his right thigh no matter how much exercise he does due to the
injury to his quadriceps muscle in the accident.

[169]     The Wong
defendants say that Mr. Ishii has not followed the recommendation to have
the hardware removed, thereby reducing pain. There is no suggestion that the
plate in his right leg could or should be removed. As Dr. Anton noted the
removal of hardware may sometimes lead to an improvement of pain but
infrequently results in the resolution of pain. Mr. Ishii’s evidence is
that the removal of the k-wire did not make any difference to the pain he was
feeling in his wrist. As a result, I find it is reasonable that Mr. Ishii
has not followed through on having an operation to remove further hardware in
his wrist. Accordingly, it is likely that Mr. Ishii will not only have the
ongoing restriction in supination and range of motion in his right wrist, which
impacts his ability to carry certain items and make rotational turns with his
dominant hand, but also some ongoing pain in his right wrist.

[170]     Having
considered the evidence, and taking into consideration the amounts Mr. Ishii
earned during the period, and the contingency that he may not have been
successful in pursuing a career in automobile mechanics, I am of the view an
award for past loss of earnings and past loss of earning capacity in the amount
of $50,000 is appropriate.

Loss of future income earning capacity

[171]     Mr. Ishii
seeks damages for loss of future earning capacity. I agree with Mr. Ishii and
the Wong defendants that given his age at the time of the 2010 accident, and
the fact he had just graduated from high school, the capital asset approach
rather than the earnings approach is the appropriate approach to use in
determining his loss of future income earning capacity.

Legal Parameters

[172]    
In Perren v. Lalari, 2010 BCCA 140, the Court noted that the
first inquiry in dealing with a claim of this nature is whether there is a
substantial possibility of future income loss. The Court stated at para. 32:

A plaintiff must
always prove, as was noted by Donald J.A. in Steward, by Bauman
J. in Chang, and by Tysoe J.A. in Romanchych, that there
is a real and substantial possibility of a future event leading to an income
loss. If the plaintiff discharges that burden of proof, then depending upon the
facts of the case, the plaintiff may prove the quantification of that loss of
earning capacity, either on an earnings approach, as in Steenblok, or a
capital asset approach, as in Brown. The former approach will be more
useful when the loss is more easily measurable, as it was in Steenblok.
The latter approach will be more useful when the loss is not as easily
measurable, as in Pallos and Romanchych.

[173]     The award
for future loss of earning capacity represents compensation for a pecuniary
loss. It is an assessment rather than mathematical calculation; however, there
is a comparison between a plaintiff’s likely future earnings before and after
the accident: Rovsold v. Dunlop, 2001 BCCA 1, at para. 11-12. While
under the capital asset approach, a trial judge may begin by comparing the
present value of the difference between the plaintiff’s earnings before and
after the injury, that is not conclusive.

[174]     In
determining a plaintiff’s loss of future income earning capacity, some of the 
factors to be considered in making the assessment include:

·      
Has the plaintiff been rendered less capable overall from earning
income from all types of employment?

·      
Is the plaintiff less marketable or attractive to an employer as
an employee?

·      
Has the plaintiff lost the opportunity to take advantage of all
job opportunities he or she was injured?

·      
Is the plaintiff less valuable to him or herself as a person
capable of earning income in a competitive labour market?

Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353 (S.C.); Perren at para. 11.

[175]    
In Shapiro v. Dailey, 2012 BCCA 128, the Court discussed the
difficulties in assessing an award for loss of future capacity as follows:

[40] The inherent difficulties of assessing awards for
hypothetical future events are well-known. The exercise has been variously
described as “gazing into a crystal ball” (Andrews v. Grand & Toy
Alberta Ltd., [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452 at 469) and “an
estimate based on prophesies” (Morris v. Rose Estate (1996), 23 B.C.L.R.
(3d) 256 at 263). In Morris, as Mr. Justice Donald observed at 264:

… The defendant’s arguments unduly focus on the mechanics
of the judge’s calculation and they fail to recognize that in the end it is the
judge’s sense of what is fair compensation that matters. There is much more art
than science in the process. Accordingly, on appeal any missteps that may have
occurred in arriving at an award are unimportant if the figure falls within the
range of reasonable compensation.

Plaintiff’s position

[176]     Mr. Ishii
asserts that he has demonstrated there is a real and substantial possibility of
a future event leading to an income loss. He says based on the expert evidence,
it is apparent he has functional impairments which will likely continue to
impact his ability to perform many job activities of any automotive mechanics
job or other heavy labour jobs.

[177]     Mr. Ishii
argues that given his age at the time of the accident, and the fact he had just
graduated from high school, the capital asset approach rather than the earnings
approach is the appropriate approach to use in determining his loss of future
income earning capacity.

[178]     Mr. Ishii
submits the method of making the assessment that should be used is that set out
in Rosvold. In Rosvold, the Court noted that the valuation may
involve a comparison of the likely future income of the plaintiff if the
accident had not occurred with the likely future income of the plaintiff since
the accident occurred.

[179]     Had the accident not occurred, it is likely Mr. Ishii would
have become an automotive service technician, entering the workforce in mid
2013. Table 1 of the Earnings Projection Report, prepared by Mr. Pivnenko,
calculates that Mr. Ishii’s earnings from the date of trial to age 70,
once reduced 20% for contingencies, would be $1,724,392.

[180]     As a result of the accident, Mr. Ishii is only able to pursue
occupations with light to medium duties. Mr. Ishii has weak classroom
learning skills and therefore is unlikely to succeed in post-secondary
education. Mr. Ishii is limited in the occupations he may pursue.

[181]     Given his current earnings, which are approximately $10 per hour
after expenses, and his current ambitions to improve his occupation from a
pizza delivery driver, it is reasonable to assume his residual earning
potential is in the $16.50 per hour range.

[182]     Mr. Ishii
submits that a fair assessment of his loss of future earning capacity is
$900,000.

The Wong Defendants’ Position

[183]     While Mr. Ishii
has not mitigated his loss to achieve maximum medical recovery, the Wong
defendants accept that he meets the Perren test regarding a future event
leading to a substantial possibility of an income loss and that he meets the Brown
factors so as to justify an award for reduced earning capacity on the capital
asset approach. The Wong defendants submit that Mr. Ishii does not meet
the test of the earnings approach such as to invoke the Steenblok
earnings approach, although some assistance is given to the court in comparing
his aptitude to be a mechanic and his significant residual capacity to earn
income. Mr. Ishii had not established a career path at the time of the
2010 accident. His high school academic achievement levels were average at best.

[184]     The
evidence shows Mr. Ishii had a keen interest in automotive mechanics and
apparent mechanical aptitude. It appears he still has the interest and aptitude.
However, Mr. Ishii is of slight build and had not been physically tested
in the demands of every day, eight hour work as an automotive technician.

[185]     The
evidence from various individuals who testified that worked in the automotive
field, including, Mr. Arnold, Mr. Dawe and Mr. Krabner, is that
it is a physically demanding occupation. They all agreed the job requires a
strong core and back. Mr. Ishii does not have that basic requirement. The
Wong defendants assert there is no indication he lost that requirement due to
the 2010 accident. Mr. Ishii definitely had a chance at the occupation of
an automotive technician but it cannot be said that it was a certainty that he
would have succeeded to become an automotive technician.

[186]     What is
clear is that there are occupations which remain open to Mr. Ishii despite
the injuries and that the comparative loss of earnings between the mechanical
technician position he says is lost and those that remain open to him is
relatively modest.

[187]     Mr. Trainor,
the vocational consultant, recommends a number of careers that Mr. Ishii
could pursue. Mr. Ishii has a number of talents including abilities with
computers. The evidence is that he has built his own computers in the past. The
Wong defendants say that it is unlikely Mr. Ishii will continue to work at
minimum wage jobs and has the ability to pursue a career which will provide him
with earnings equal to or more than he would have earned as an automotive
mechanic.

[188]     The Wong
defendants say that the tables prepared by the economist, Mr. Pivnenko
contain erroneous assumptions. If Mr. Pivnenko had performed a mathematical
calculation of possible lost earning capacity on five of the alternative
recommended occupations, the results would have shown that the difference of
earnings between those occupations and automotive mechanics as follows:

[189]    
The Wong defendants do not assert that Mr. Ishii’s loss of earning
capacity is only $57,344 or that he has in fact no loss because more lucrative
occupations than he had in mind are still open to him. Rather, the table
indicates that his claim of dire future losses is unproven. What is proven is
that there will be some effect on his income earning capacity, but with
personal application to the task of training, Mr. Ishii has a world of
income earning possibilities open to him.

[190]     The Wong
defendants say there are additional factors which impact his loss of future
earning capacity, including:

·      
It is by no means certain that Mr. Ishii would have become
an automotive service technician. He is weak in his core and back and he lacks
aerobic fitness. It is suggested a 20% contingency be applied for the possibility
that Mr. Ishii would not have met the physical demands of an automotive
service technician position had there been no injury.

·      
Conversely, it is by no means certain that Mr. Ishii cannot
in future be an automotive service technician if he applies himself to the
exercises he has been told so frequently to pursue. He has not reached maximum
medical recovery per Dr. Anton.

·       Mr. Ishii
may also have had some issues with maturity that may now be changing. Mr. Ishii
now seems to appreciate that he must resume his schooling to gain training in
an occupation. One cannot fault his work ethic. He worked in high school and
works consistently in his Domino’s job.

[191]     It is
submitted that Mr. Ishii still possesses the ability to train for a career.
The evidence offered by Mr. Ishii is that he retains a real residual
ability. He is working. Because of his age, Mr. Ishii needed to train and
still needs to train.

[192]     The Wong
defendants submit that taking all of these factors into consideration, the
appropriate award for loss of future income earning capacity is $200,000-$250,000.

Application of the law to the facts

[193]     As stated
earlier, I agree that given Mr. Ishii’s age and level of education at the
time of the 2010 accident that the capital asset approach is the appropriate
approach to take in determining his future loss of income.

[194]     I also
agree that Mr. Ishii has the ability to obtain further training for a
career. However, for the reasons set out earlier, I do not agree that the
evidence establishes he has the ability to meet the physical demands of an
automotive mechanic regardless of whether or not he exercises.

[195]     Dr. Perey
and Dr. Anton both indicate that Mr. Ishii has a permanent partial
disability in his right wrist and right leg. As noted earlier, it is Dr. Perey’s
evidence that no matter how much Mr. Ishii exercises he will have residual
pain in his right thigh and reduced supination and strength in his right wrist.
Dr. Anton’s evidence is that the restrictions in his right wrist make it
more difficult for him to perform repetitive lifting with his forearm, pushups,
or use a screwdriver. At stated earlier, although Dr. Perey would not
restrict Mr. Ishii from doing those activities since they would not injure
him, the fact he would not restrict him from doing those activities does not
mean Mr. Ishii would be able perform those activities. Dr. Perey’s
opinion is that Mr. Ishii should avoid occupations that require prolonged
standing and exposure to cold.

[196]     As noted
by Mr. Hunt, Mr. Ishii’s right wrist restrictions will make it
difficult for him to use power tools and equipment which produce vibration and
rotational torque to the hand, wrist and forearm due to lateral and inter-joint
pain, particularly at the end of his range motion. This would include
mechanical occupations requiring wrenching and use of air power tools and/or
construction trades requiring the use of power saws, compression nail guns and
hammering.

[197]     The expert
evidence is consistent with the evidence of Mr. Ishii and his friends,
that Mr. Ishii has problems undoing bolts and other tasks requiring
rotational movements of his right arm and hand.

[198]     It is
clear from the evidence that Mr. Ishii has been rendered less capable
overall from earning income from all types of employment. While I agree that Mr. Ishii
is capable of training for a career, it is apparent that certain occupations,
including the field of automobile mechanics, are no longer available to him.

[199]     As well, Mr. Ishii
has established that he is less marketable or attractive to an employer as an
employee, and that he has lost the opportunity to take advantage of all job
opportunities because he was injured.

[200]     Finally, I
agree that Mr. Ishii is less valuable to himself as person capable of
earning income in a competitive labour market. Mr. Ishii excelled in
automechanics in high school and obviously has a passion for fixing
automobiles.

[201]     In my
view, the evidence establishes that he can no longer pursue that occupation as
a result of the 2010 accident. I do not accept the Wong defendants’ argument
that the evidence establishes he would not have been able to pursue that career
in any event. The evidence is that Mr. Ishii was capable of doing all the
physical tasks in auto-mechanics class in high school, doing heavy tasks at his
job at Canadian Tire, and was capable of dismantling and carrying parts prior
to the accident. There is no evidence that Mr. Ishii had poor core
strength or was deconditioned prior to the accident.

[202]     The
evidence is that he was a healthy 18 year old who worked, and played paint ball
and did other activities, such as hiking.

[203]     Accordingly,
I have concluded that as a result of the accident, Mr. Ishii has lost the
capacity to pursue the automechanic trade he was planning to pursue. As well he
had lost the capacity to pursue other trades which have physical requirements
involving prolonged standing, stooping, or repetitive tasks with his right hand
and arm.

[204]     Having
considered all of the evidence, I am of the view that the appropriate award for
loss of future income earning capacity is $400,000. In making that award, I
have taken into consideration that Mr. Ishii is unlikely to be able to
train for a number of careers that require academic skills, such as
mathematics, as well as those that have physical requirements. As outlined by
the Wong defendants there remain a number of careers that Mr. Ishii can
pursue. It is clear he has an aptitude in computers, for example. However,
there is considerable uncertainty regarding Mr. Ishii’s ability to succeed in a
career where he could earn the type of income he could from either the
automechanics trade or other trades he is now precluded from pursuing as a
result of the accident.

Special Damages

[205]     Special
damages have been agreed upon in the amount of $2,941.

Cost of Care

[206]     Mr. Ishii
advances an in trust claim for the value of the care and assistance his mother
provided to him.

[207]     Mr. Ishii submits it is settled law that an award may be made
to a plaintiff in trust for a family member who is not named as a party to an
action whether or not the plaintiff actually pays for the services.

[208]    
The factors to be considered in assessing such
claims are set out in O’Connell v. Yung, 2010 BCSC 1764, para. 90:

(a) where the services replace services necessary for the
care of the plaintiff;

(b) if the services are rendered by a family member, here the
spouse, are they over and above what would be expected from the marital
relationship?

(c) quantification should reflect the true and reasonable
value of the services performed taking into account the time, quality and
nature of those services. In this regard, the damages should reflect the wage
of a substitute caregiver. There should not be a discounting or undervaluation
of such services because of the nature of the relationship;

(d) it is no longer necessary
that the person providing the services has foregone other income and there need
not be payment for such services.

[209]     Ms. Ishii testified that she lost eight days of work caring for
the plaintiff. She makes $20 per hour. She also renovated Mr. Ishii’s
living area and cared for him during the fall of 2010. Since then, she has helped
clean his room from time to time.

[210]     Ms. Ishi testified she took a further day off to spend eight
hours cleaning his room, which was full of food packaging, clothes, bugs and litter.

[211]     Mr. Ishii submits that an in trust claim of $5,000 is
appropriate: Frangolias v. Parry 2010 BCSC 630, at para. 133.

[212]     The Wong
defendants do not take issue with the fact that Mr. Ishii’s mother should
be compensated. They submit that in trust claim in the range of $2500 is
appropriate.

[213]     In this case, I am satisfied that Ms. Ishii had to provide
complete care for Mr. Ishii when he was released from hospital including
feeding him, bathing him, and assisting him with all of his daily tasks. Ms. Ishii’s
evidence is that she had to take time off work, and make some renovations to
her house to accommodate his wheel chair. In the circumstances, I am of the
view, an award for the in trust claim in the amount of $5000 is appropriate.

Cost of Loss of Housekeeping Capacity

[214]     Mr. Ishii
advances a claim for loss of housekeeping capacity separately from cost of
future care based on McTavish v. MacGillivray, 2000 BCCA 164. However,
it is clear from McTavish at para. 45, that loss of future
housekeeping capacity is to be considered in the context of medical and health
related contingencies that might affect the ability of the plaintiff to perform
housekeeping tasks. In this case, there is no medical evidence or other
evidence that Mr. Ishii will need assistance with housekeeping in the
future due to his limitations.

[215]     Accordingly,
this claim cannot succeed.

Cost of Future Care

[216]     Mr. Ishii
advances a claim for cost of future care. Mr. Ishii says he cannot perform any strenuous outdoor work. He will need help from
movers to move even modest loads. He requires help from his friend, Connor
Williams with vehicle maintenance. He will likely require assistance with
childcare should he have children. He will require assistance with yardwork. Mr. Ishii
seeks $5,000 per year for future assistance from the date of trial to age 60.
Using Table 1 of Mr. Pivnenko’s Cost of Care Report, present value of future
care for Mr. Ishii is calculated as follows: $5,000 per year x (26,128 /1,000)
= $130,640.

[217]     Mr. Ishii is currently taking physiotherapy at a cost of $65
per session. He plans to continue for 6-12 months. Dr. Reynolds is of the
opinion that Mr. Ishii requires six months of physiotherapy and active
rehabilitation. The other medical witnesses are in agreement that Mr. Ishii
will need to attend a gym program after he completes a rehabilitation program.
If Mr. Ishii attends physiotherapy or exercise therapy at $130 per week,
assuming 2 visits a week, he will spend $6,500 over the next 50 weeks.

[218]     Mr. Woodward is of the opinion that the plaintiff will require
a further 50 hours of vocational services at $70 per hour totaling $3,500. The total cost of future care claim that Mr. Ishii is
advancing is $140,640.

[219]     Cost of
future care is established if there is a medical justification for the claim,
and the claim is reasonable: Aberdeen v. Zanatta, 2008 BCCA 420 at para. 42.

[220]     Measures
that provide some temporary relief but little to no medical improvement ought
to be compensated for under the head of general damages rather than an expense
that is compensable as a cost of future care: Ho v. Dosanjh, 2010 BCSC
845. As well, services that a plaintiff has not used and not sought out in the
past should not be awarded as the plaintiff will be unlikely to avail herself
of them in the future: Izony v. Weidlich, 2006 BCSC 1315, at paras. 73-74.

[221]     The Wong
defendants agree that physiotherapy is medically justified because the health
care professionals have recommended it. However, they suggest the appropriate
amount is $5000. Mr. Ishii conceded that $5000 was the appropriate amount
for future physiotherapy treatments. As a result, I am awarding the amount of $5000
for the cost of future physiotherapy treatments.

[222]     The Wong defendants
say the home support services being claimed are not medically necessary and
should not be awarded. However, I agree that the evidence establishes there is
some medical justification for the provision of some assistance to Mr. Ishii
in the future in regards to heavier chores, yard work, and moving. Based on the
limited evidence, I am of the view that an award for home support in the future
in the amount of $30,000 is appropriate.

Mitigation

[223]     The
Wong defendants submit that Mr. Ishii has failed to mitigate his damages
and that his awards for non-pecuniary damage, past income loss, and future
earning capacity claims must be reduced to account for that failure.

[224]     There is
no question that every plaintiff has an obligation to take reasonable steps to
reduce the damages flowing from a tort. In order to be successful in
discharging the burden of proving that Mr. Ishii has failed to mitigate, the
defendants must establish that Mr. Ishii failed to undertake a recommended
treatment, that by following the recommended treatment Mr. Ishii would
have overcome the problem, and that the refusal to take the treatment was
unreasonable: Chiu v. Chiu, 2002 BCCA 618; Wahl v. Sidhu, 2012
BCCA 111, at para. 32.

[225]     The mitigation test is a subjective/objective test. That is, whether
the reasonable patient, having all the information at hand that the plaintiff
possessed, ought reasonably to have undergone the recommended treatment. The
second aspect of the test is "the extent, if any to which the plaintiff’s
damages would have been reduced" by that treatment: Gregory v Insurance
Corporation of British Columbia, 2011 BCCA 144, at para. 56

Plaintiff’s Position

[226]     Mr. Ishii was actively engaged in physiotherapy and aquatherapy
from October 2010 until June 2011. After June 2011, Mr. Ishii began an
active rehabilitation program at Back in Motion. He found the program to
provide little benefit while causing him significant pain. His taxi account was
cut off so he was forced to use public transportation to attend therapy, adding
to his pain and discomfort. Further, he was under the impression he was no
longer entitled to aquatherapy, which he had found most helpful.

[227]     No evidence has been put forward to establish that Mr. Ishii’s
damages would have been reduced had he adhered to an exercise program or
attended an active rehabilitation program. The defense did not have Mr. Ishii
attend an independent medical examination. There is no evidence before the
court to determine the extent Mr. Ishii’s damages would have been reduced
had he exercised.

Defendants’ Position

[228]     The
defendants take the position that Mr. Ishii has clearly failed to mitigate.
He was proceeding well with his exercise and aquatherapy treatment to June 29,
2011. Mr. Ishii was reporting improvement to Ms. Zarrinkamar and he
had authorizations for further treatment. Then in July 2011, Mr. Ishii reported
that he was not benefitting from the program and he stopped. Mr. Ishii was
urged to continue with therapy and he reluctantly took part only sporadically
and when prompted thereafter. In October 2011, Dr. Anton expressed the
opinion that exercise was in fact key to his right leg recovery. Mr. Ishii
was working at the car dealership and Armani’s in the fall of 2011 but then
stopped by January 2012 due to discomfort but made no effort to return to
therapy from that point forward. Mr. Ishii attended at Back in Motion on a
few occasions in November and December 2011 but not after that.

[229]     The
failure to exercise showed. Mr. Ishii had poor core strength when assessed
by Mr. Hunt in April 2012 and displayed a weakness in his legs. Dr. Perey
agrees with Dr. Anton’s views on exercise regarding his right leg. Dr. Perey
recommended surgery to remove the remaining right wrist hardware with an
expectation that to do so “will likely relieve all of his symptoms of pain.” Mr. Ishii
has not followed up on that recommendation.

[230]     Mr. Hunt
recommended 12 to 16 weeks of one-on-one exercise prescription with a qualified
physical therapist specifically to address “persistent right leg weakness,
protective posturing associated with sub-patellar pain, and poor endurance and
aerobic stamina”. Mr. Ishii did not follow that advice.

[231]     In 2013, Mr. Ishii
attended the Mountainview agency according to their records. He attended twice
in March 2013 after an initial assessment and one time in May. He did not
return for physical exercise or therapy. Mr. Ishii did not return to any exercise
until effectively the eve of trial when he started to attend aquatherapy at
Maxfit again.

[232]     The Wong defendants
submit it is impossible for anyone to say how much recovery Mr. Ishii
would have had if he had persistently attended to his exercise. Where the
medical personnel universally indicate that there is activity Mr. Ishii
should do which he then does not do, the presumption must be that the losses
would be significantly reduced had the recommendations been followed. Mr. Ishii’s
explanation for the failure to follow up with the Back in Motion program was
that he was cut off the aquatherapy program he was in; however, the documents
indicate Mr. Ishii was the one who indicated aquatherapy was not
benefiting him which was contrary to Ms. Zarrinkamar’s evidence that it
was.

[233]     Bearing in
mind that the injuries to Mr. Ishii are serious and that the chances of
full  recovery of function, while not impossible, are not likely, it is
suggested that a fair mitigation reduction of non-pecuniary damages is 20%, of
past income loss, 25% and future earning capacity 30%, in line with the cases
of Maltese v. Pratap, 2014 BCSC 18; Mohan v. Khan, 2012 BCSC 436;
Hauer v. Clendenning, 2010 BCSC 366; Salzmann (Guardian ad litem of)
v. Bohmer, 2009 BCSC 1586; Spurgeon v. Smith, 2009 BCSC 1526; and Tayler
v. Loney, 2009 BCSC 742.

Application of the Law to the Facts

[234]     I agree
with the defendants that Mr. Ishii has not followed all of the recommended
exercise programs. However, he has provided reasonable explanations as to why
he did not attend some of the programs, including the Back in Motion program. Mr. Ishii’s
evidence was that he did not receive much benefit from it. He no longer had a
taxi service, and he had to walk to a bus and then go through what he described
as painful exercises, and then bus and walk back to his home. In the
circumstances, it is not unreasonable that Mr. Ishii did not continue with
that program.

[235]     The Wong defendants
suggest Mr. Ishii failed to mitigate because he has not followed the
recommendation that he have his hardware in his wrists removed. However, there
is no evidence the surgery would result in a complete reduction in the pain in
his wrists. According to Dr. Anton, removal of hardware may result in some
pain reduction but is unlikely to result in complete resolution of the pain.
Given that Mr. Ishii’s experience when he had the k-wire remove was there
was no reduction in pain, and the fact that it would require further surgery, it
is not unreasonable for him to have not followed that recommendation.

[236]     Dr. Perey
was clear that regardless of exercise, Mr. Ishii would continue to suffer
discomfort in his right thigh because of the injury to his quadriceps muscle
caused by the open fracture of his femur. As indicated earlier, there is no
suggestion that the plate in his leg be removed.

[237]     While Mr. Ishii
may have had a better recovery if he had exercised more, there is no evidence
that he would reach a complete recovery, or have a significant reduction in his
pain and symptoms if he exercised more. The evidence is that regardless of
exercise, he will still be left with a permanent partial disability in his
right arm and right leg which will impact his ability to stand for lengths of
time, and do repetitive tasks with his right dominant hand.

[238]     In the
circumstances, I have concluded that the defendants have not met the threshold
for reducing an award set out in Chiu.

Conclusion

[239]     In
conclusion, I find that the Wong defendants are liable for the 2010 accident.
As well, I find that Mr. Beach is liable for the two impacts the vehicles
in 2012. Mr. Ishii and Mr. Beach are both liable in regards to the
unfortunate incident that occurred when Mr. Beach left his vehicle.

[240]     However,
as set out earlier, there were no physical damages to Mr. Ishii in the
2012 accidents. Any anxiety resulting from the accident is very minimal.
Accordingly, I am not awarding any damages arising from the 2012 accident.

[241]     I am
awarding the following for the injuries suffered by Mr. Ishii in the 2010
accident:

·      
Non-pecuniary damages – $150,000

·      
Past loss of income earning capacity – $50,000

·      
Future loss of income earning capacity – $400,000

·      
Future cost of care – $35,000

·       In
Trust claim – $5,000

[242]     As noted
earlier, special damages have been agreed to in the amount of $2,941, for a
total award of $642,941.

[243]     As well, Mr. Ishii
is entitled to his costs in the Wong action at Scale B, subject to submissions.

[244]     Mr. Ishii
is also entitled to costs in the Beach action. I have accepted that the two
collisions between the vehicles were caused by Mr. Beach. Even though I
have found there are no damages, Mr. Beach was in the wrong in that he
negligently caused the first accident, and then failed to pull over. Instead he
struck Mr. Ishii’s vehicle a second time, and left the scene. I have
concluded that in the circumstances, it is appropriate to order that Mr. Beach
pay Mr. Ishii’s costs at Scale B.

“Gerow,
J.”