IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150529

Docket: M121678

Registry:
Vancouver

Between:

Zi Fu Zhang

Plaintiff

And:

Berhane
K. Ghebreanenya and
Richmond Cabs Ltd.

Defendants

Before: The Honourable Mr. Justice
Grauer

Oral Reasons for Judgment

INTRODUCTION

[1]           
This claim arises out of a motor vehicle accident that occurred on the
morning of June 28, 2010.  The plaintiff, Mr. Zhang, was a rear seat
passenger in a taxi that was taking him from the River Rock Casino in Richmond
to his home on East 45^th Avenue in Vancouver.  The defendant driver
lost control of the taxi as it rounded a tight curve leading to the entrance to
Highway 99 northbound towards the Oak Street bridge.

[2]           
Mr. Zhang claims non-pecuniary damages, special damages, damages
for loss of housekeeping capacity, and future care costs.  As he was retired,
there no claim for income loss.  The defendant denies liability and pleads
inevitable accident.

CREDIBILITY

[3]           
The defendants questioned both the reliability and the credibility of Mr. Zhang’s
evidence.  Mr. Zhang is now 78 years old and gave his evidence in his
native Hakka dialect and in Mandarin.  There were times when he seemed a bit
confused, although it was not always easy to discern whether the source of the
confusion was him, the interpreter, or his questioner.  Overall, however, I
found Mr. Zhang to be both reliable and credible in his evidence.  He did
not seem to me to exaggerate, he readily conceded where his memory failed (such
as whether he had fastened his seatbelt), and gave his evidence in a forthright
and emphatic manner that was not at all inconsistent with telling the truth. 
His evidence may not always have been correct, but I reject the contention that
he was attempting to mislead the court.

LIABILITY

[4]           
Mr. Zhang could not remember all of the details of the accident, as
he was in a state of shock.  He recalls the taxi swerving and leaving the road,
ploughing into a field of grass, swaying, and coming to a sudden stop near a
grove of four large trees that he was afraid they would hit.  He identified the
trees on a photograph.

[5]           
Mr. Zhang described how he was jolted in his seat, hitting his
right shoulder on the window, and the top of his head on the roof of the car. 
He believes that he was wearing his seatbelt, but could not be certain.

[6]           
The defendant driver, Mr. Ghebreanenya, concedes that he lost
control of the taxi.  He testified that there was a misty rain that day, and
the road was wet.  He was rounding the curve or loop that takes traffic from
Sea Island Way to join Highway 99 northbound.  As he was in the curve, he
accelerated, and then felt the car slip and shake.  It was as though he had hit
snow or ice.  He tried to keep control and stay on the road, but was unable to
do so.  The car skidded and turned 90° to his right, but, he testifies, he was
able to bring it slowly to a stop, with half of the car on the grass beside the
road, facing back towards the route he had just driven.  He thought he had been
travelling at less than 60 km/h, but as he was accelerating at the time,
and not watching his speedometer, he could not be sure.  He gave no evidence of
anything unusual or unexpected on the roadway, and his vehicle was in sound
mechanical condition.

[7]           
I am unable to give much credence to Mr. Ghebreanenya’s evidence
that he was able to bring the car slowly to a controlled stop.  He was skidding
at 90° to his original direction of travel, and was leaving the road.  He had
clearly lost control, and I am satisfied that the stop would have been fairly
abrupt as described by the plaintiff.  I accept, however, Mr. Ghebreanenya’s
testimony that the taxi did not entirely leave the roadway, but was about
halfway into the grass.  While I am sure that it may have appeared to Mr. Zhang
that the taxi was heading through the grass and towards the trees, he was, as
he said, in shock.

[8]           
There can be no doubt that Mr. Ghebreanenya failed to keep his taxi
under control and on the roadway while accelerating around a fairly tight
curve.  By itself, this does not necessarily establish negligence: Fontaine
v British Columbia (Official Administrator), [1998] 1 SCR 424.  But looking
at the evidence here as a whole, I find that the only reasonable inference to
be drawn is that Mr. Ghebreanenya was travelling too quickly for the
conditions, in particular the tightness of the curve and the slickness of the
wet road surface, thereby causing the vehicle to go into a skid.  It follows
that he was in breach of the standard of care reasonably to be expected of a
driver in such circumstances: see the discussion in Nason v Nunes, 2008
BCCA 203.  The evidence does not support the contention that the accident
was inevitable in the sense required by the law; see Chow-Hidasi v Hidasi,
2013 BCCA 73 at para 24.  The vicarious responsibility of the
defendant Richmond Cabs is not disputed.  Accordingly, I find the defendants
liable to the plaintiff.

[9]           
Mr. Ghebreanenya gave no evidence about whether Mr. Zhang was
wearing a seatbelt, or whether there was a headrest, and if so, how it was
adjusted.  In these circumstances, the defendants have failed to meet the onus
upon them of establishing contributory negligence on Mr. Zhang’s part.

DAMAGES

1.            
The Plaintiff

[10]       
Mr. Zhang was born in Guangdong Province in China on December 15,
1936.  He grew up there, in a family of two brothers and two sisters.  His
father, who worked part-time as a steelworker, was also a farmer, and his
parents sold herbs used in Traditional Chinese Medicine (“TCM”).  His ancestors
had practised TCM for generations, and his grandfather was a physician to the
Dowager Empress Cixi of China’s last Imperial Dynasty, the Qing.  From his
father and grandfather, Mr. Zhang learned about herbal medicine,
acupuncture and pulse analysis.

[11]       
The changing tide of history took Mr. Zhang down a different career
path; he joined the Communist guerrillas in 1949 at the age of 13.  By the age
of 18 he had become the head of his village, and by 24, general manager of the
Guangdong Province Department of Geology.  He remained in that administrative
position until his retirement and emigration to Canada in 1994.  He gave up the
professional practice of TCM at the age of 31, but always maintained an
interest in it.

[12]       
Before coming to Canada, Mr. Zhang had twice injured his right arm
in accidents, including fracturing his elbow joint, but testified that he had
fully recovered from these injuries long before the accident at issue in this
lawsuit.

[13]       
Mr. Zhang had been preceded to Canada by a son and two daughters,
who lived in Toronto.  A third daughter moved with him to Canada and they
settled in Vancouver, chosen for its climate.  All of his family now live in
Vancouver.

[14]       
Since coming to Vancouver, Mr. Zhang has returned to China
frequently, often spending up to five months a year there.  He has served as
President of the Vancouver Tsung Tsin (Hakka) Seniors Association, which he
attended frequently before the accident.

2.            
The Plaintiff’s Injuries

[15]       
Mr. Zhang’s immediate complaints were of headache and dizziness,
and severe pain in his right shoulder.  The pain in his shoulder decreased
after a few days, then continued to lessen, but remains problematic at times. 
Weakness and numbness extend down his right arm and into his right hand.  These
are the main problems now, but pain in the shoulder still comes and goes. 
Sometimes it interferes with his ability to sleep on the right side.

[16]       
This shoulder and arm problems make it difficult, he testified, to
drive, and interfere with his ability to cook and clean.  He is also unable to
lift heavy things, such as a pail of water, with his right arm.  He is unable
to perform acupuncture because he cannot insert a needle accurately with his
right hand.  Similarly, there are 28 ways to feel pulses, and he cannot sense
them properly with his right hand.  Consequently, he said, he is restricted in
his ability to pass on his family’s medical skills to the next generations.

[17]       
The evidence indicates that Mr. Zhang was still suffering some neck
pain in September 2010 when a rheumatologist to whom he had been referred,
Dr. Verdejo, prescribed a cervical collar.  Mr. Zhang did not,
however, wear the collar, from which I infer that his neck pain was not much of
a problem after this point.

[18]       
I find that Mr. Zhang has suffered headache and neck pain as a
result of the accident, principally due to soft tissue injury exacerbating
pre-existing degenerative disc disease.  These problems largely resolved over the
three or four months following the accident.  I accept that Mr. Zhang
continues to experience occasional dizziness and headache, due, I find, to the
effect of his shoulder condition on the trapezius muscles and neck, as
indicated by Dr. Kokan.

[19]       
The principal question is whether Mr. Zhang’s continuing shoulder and
arm problems were caused by the accident.  Dr. Simon Ko, Mr. Zhang’s
family doctor, and Dr. Peter Kokan, an orthopedic surgeon who assessed Mr. Zhang
on one occasion, gave expert opinion evidence on behalf of the plaintiff.  The
defence called Dr. Bassam Masri, Professor and Head of the Department of
Orthopedics at the University of British Columbia and the Vancouver Acute
Health Services Delivery Area.  Dr. Masri also saw Mr. Zhang on one
occasion.

[20]       
Dr. Ko saw Mr. Zhang regarding the injuries at issue in this
lawsuit on 29 occasions between the accident and trial.  He diagnosed Mr. Zhang
as suffering from neck strain, right shoulder trapezius muscle strain, chest
sternum and right ribs strain, muscular headache, and strain to the right arm,
right elbow and right ankle.

[21]       
Dr. Ko testified that Mr. Zhang did not complain of problems
with his right shoulder and right arm before the accident except once, on
December 9, 2009, when Dr. Ko recorded that Mr. Zhang slipped
and strained his shoulder trapezii.  No ongoing difficulties in this regard
were noted.  This evidence is consistent with that of Mr. Zhang, his
daughter and his granddaughter, and I find that his shoulder was asymptomatic
before the accident.

[22]       
Because of Mr. Zhang’s complaints of shoulder pain following the
accident, Dr. Ko referred him to physiotherapy and to Dr. Verdejo,
and for X-ray of the right shoulder.  The X-ray showed soft tissue
calcification of the right shoulder, and osteoarthritis and soft tissue
calcification in the right elbow.  Dr. Verdejo interpreted this as
indicating pre-existing right shoulder tendinitis aggravated by the motor
vehicle accident, and an old right elbow fracture with pain possibly due to
sudden strain.  Dr. Ko testified that this was his impression also.  Dr. Ko
felt that complete recovery from the pain in the shoulder was unlikely.

[23]       
An MRI of Mr. Zhang’s right shoulder was carried out on September 22,
2012.  This demonstrated rotator cuff tendinopathy, which Dr. Kokan
explained was a partial tear of the rotator cuff.  The MRI also demonstrated
mild arthritic changes.

[24]       
Dr. Kokan could not be sure whether the tendinopathy existed before
the accident, or was caused by the accident, but nevertheless expressed the
opinion that it was probable that it was the accident that caused Mr. Zhang’s
shoulder to become symptomatic.  He bases this on what he expects would have
been the mechanics of the accident, in terms of the forces on the shoulder.  He
conceded that this was somewhat speculative.

[25]       
According to the defence expert, Dr. Bassam Masri, the partial tear
of the rotator cuff found on MRI in September 2012 was not caused by the
accident, but represents a pre-existing degenerative condition.  He testified,
and I accept, that while a certain kind of trauma akin to that which causes
dislocation of the shoulder can cause a full tear of the rotator cuff, a
partial tear like this could only be the result of a degenerative process.  This
is consistent with the opinion of Dr. Ko based on the report of Dr. Verdejo.

[26]       
In his report, Dr. Masri agreed with Dr. Kokan that the
initial acute symptoms of pain in the right shoulder were due to the forces of
the accident on the degenerative condition.  He went on to state, however, that
Mr. Zhang’s principal ongoing problem was weakness, rather than pain, and
that this was part of the natural history of his rotator cuff degenerative
disease, for which the only useful treatment is reconditioning and exercise.

[27]       
In his evidence at trial, however, Dr. Masri explained it this
way.  Because of the symptoms of pain caused by the effect of the accident on
his pre-existing degenerative condition, Mr. Zhang’s shoulder became
deconditioned and weak from lack of use.  Normally, the remedy for this, once
the pain subsides (as it largely has) is aggressive therapy to recondition the
shoulder muscles.  In Mr. Zhang’ case, however, aggressive reconditioning
is not possible because of the lack of an intact rotator cuff (the degenerative
process).  But for the accident, he would not be in that same state of
weakness.  Because of his pre-existing degenerative condition, he is unable to
remedy it.

[28]       
This explanation is consistent with the evidence of Dr. Kokan, and
I accept it.  I find that because of the accident, Mr. Zhang has been left
with significant weakness and intermittent pain in his right shoulder.  That a
pre-existing degenerative condition contributed to this state of affairs does
not interrupt the chain of causation between the accident and Mr. Zhang’s
current condition: Athey v Leonati, [1996] 3 SCR 458.

[29]       
In assessing Mr. Zhang’s loss, however, I take into account that
his original pre-accident condition included arthritis in the right elbow that
limited the strength and range of motion in that joint.  I also take into
account what I consider to be a real and substantial possibility that the
pre-existing rotator cuff tear would have led to symptoms of shoulder weakness
and discomfort in the future in any event, albeit to a lesser extent than he
now faces.

[30]       
With respect to the impact of his injuries, I observe that Mr. Zhang
had retired from TCM long before this accident.  The evidence of his daughter
and granddaughter did not support the contention that he has been frustrated in
attempting to pass on the family skill set.  The evidence does indicate that he
stopped driving his youngest granddaughter to school and lessons after the
accident, but this coincided with his eldest granddaughter obtaining a motor
vehicle.  Nevertheless, I am satisfied on the whole of the evidence that the
significant ongoing weakness in Mr. Zhang’s right shoulder and arm has had
an impact on his ability to drive.  I also find that he has been impaired in
his ability to prepare food (particularly to chop vegetables), to perform at
least some aspects of household cleaning, and to lift heavy objects.  Socially,
he goes out much less than he used to before the accident.

[31]       
Because there are aspects of the plaintiff’s claims loss of housekeeping
capacity and future care costs that may be relevant to the assessment of his
claim for non-pecuniary damages, I will go on to consider his other claims
before completing this assessment.

3.            
The plaintiff’s expenses

[32]       
As I understand it, the defendants accept that Mr. Zhang is
entitled to be reimbursed for expenses he incurred for such matters as
acupuncture and physiotherapy in the total of $1,279.06.

[33]       
The controversy here arises in relation to the relatively high cost of
Chinese herbal plasters obtained and used by Mr. Zhang during his trips to
China.  These plasters are made from a combination of 30 kinds of herbs found
only in the mountains of Guangdong Province, which are then crushed and pounded
into a paste.  Over the five years since the accident, Mr. Zhang has
expended $13,640.73 on these treatments.  He testified that using them on his
right shoulder has improved the pain level by about 60%.

[34]       
No Western physician prescribed or recommended this treatment.  Mr. Zhang’s
treating physicians in Vancouver know nothing about the herbs from a medicinal
point of view, although Dr. Ko did not discourage Mr. Zhang from
using them so long as they seemed effective.  According to Mr. Zhang, they
were prescribed by a Doctor of Traditional Chinese Medicine in Shenzhen City, supported,
I infer, by Mr. Zhang’s own experience and knowledge in the field of
Chinese herbal therapy.  The prescriptions were entered into evidence, but, not
surprisingly, the prescribing physician did not testify, and there was no
evidence from a local practitioner of TCM.

[35]       
The defendants accept that Mr. Zhang spent the specified amounts on
treatments of this nature but maintain that it is not properly claimable.  In
cross-examining Mr. Zhang, defence counsel suggested that perhaps he was
bringing these poultices back to sell to others, or to use in training his
granddaughters in TCM.  Mr. Zhang denied this, and I accept his evidence
in that regard.  There is absolutely no evidence to the contrary.

[36]       
The question is whether, in these circumstances, the law requires the
defendants to reimburse Mr. Zhang for this amount.  I am satisfied, on the
evidence, that Mr. Zhang was prescribed this treatment because of the
injury to his shoulder caused by the accident.

[37]       
Ultimately, once causation is established, the test for allowing special
damage claims is whether the expense was reasonable.  That the expense relates
to treatment that is not part of traditional Western medicine does not per se
render it unreasonable: Lee v McGuire, 2005 BCSC 241 at para 16.
This is particularly so where, as here, the treatment appears to have been
effective.

[38]       
In this case, I find that these expenses were reasonably incurred by Mr. Zhang,
on the following bases:

(a)          
he was well versed in traditional Chinese herbal medicine and familiar
with the herbs in question from his childhood and youth;

(b)          
the treatment was prescribed by a physician in Shenzhen City;

(c)          
his family physician in Vancouver, while not familiar with the
treatment, encouraged him to continue with it if he found it effective;

(d)          
he did find it effective, thereby potentially reducing the scope of his
claim for non-pecuniary damages; and

(e)          
the cost, while high, must be considered in the context of treatment
spanning a period of five years.

[39]       
I conclude that Mr. Zhang is entitled to special damages in the
total of $14,919.79.

4.            
Loss of Housekeeping Capacity

[40]       
As stated above, I find that Mr. Zhang has indeed been impaired in
his ability to carry out household chores including cleaning tasks and cooking as
a result of the accident.  It follows that his housekeeping capacity has been
reduced, and that he is entitled to compensation for this loss of capacity even
if he has not incurred any actual expenses for hired services: see Kroeker v
Jansen (1995), 4 BCLR (3d) 178 (CA) at para 9, leave to appeal ref’d,
[1995] SCCA No. 263, and Liu v Bains, 2015 BCSC 486 at paras 188-189.

[41]       
In Mr. Zhang’s case, tasks he used to perform were taken over by
his daughter while he continued to live with her, and thereafter by his son,
with whom he now lives.  This will continue to be necessary for the foreseeable
future, until Mr. Zhang’s advancing age and pre-existing conditions would
have combined to put him in the same position in any event.

[42]       
In cross-examining Mr. Zhang’s daughter, Ms. Cheung, defence
counsel suggested that, in the Confucian tradition, she and her brother would
naturally look after their father in any event, rather than requiring him to
look after himself.  The imperative to “honour thy father and thy mother” (Exodus
20:12) exists in most cultures, but is not an answer to this claim.  The
reality is that Mr. Zhang played an active role in the household,
contributing his part.  He is no longer able to do so.

[43]       
The question is whether Mr. Zhang’s loss of housekeeping capacity,
being non-pecuniary in nature, should be assessed as part of his claim for
non-pecuniary damages, or segregated:  see the discussion in Kroeker at
paras 23-28.

[44]       
Given that there is no evidence before me of a means to value Mr. Zhang’s
loss of housekeeping capacity, whether past or future, I conclude that it is
preferable to include this aspect of his claim in my assessment of his
non-pecuniary damages as a whole.  In his submissions, counsel for Mr. Zhang
was content with this approach.

5.            
Future Care Costs

[45]       
The plaintiff’s claim under this heading is intended to cover the cost
of further herbal plasters.

[46]       
Items claimed must be shown to be medically justified, but medical
necessity is too stringent a requirement given the interplay of psychological
and emotional factors.  Reasonableness is essential.  See Zapf v Muckalt
(1996), 26 BCLR (3d) 201 (CA) at para 36.

[47]       
I have already found that it was reasonable for Mr. Zhang to incur
the expense of these herbal plasters in the past.  This was supported by
prescriptions, and was effective in relieving his pain.  But I have absolutely
no evidence to support the contention that continued use into the future is
medically justified.  Dr. Masri testified that the principal problem now
is weakness, rather than pain, although his notes do indicate that there
continues to be occasional pain, and this is consistent with Mr. Zhang’s
evidence.  But there is no evidence that these plasters will assist in
remedying Mr. Zhang’s principal ongoing complaint of weakness. 
Accordingly, the claim for cost of future care is dismissed

6.            
Non-Pecuniary Damages

[48]       
I now return to the question of the assessment of Mr. Zhang’s
non-pecuniary damages.

[49]       
The defence submits that I should assess these damages in the range of
$10,000-$18,000 based on the proposition that Mr. Zhang suffered soft
tissue injuries superimposed on pre-existing degenerative conditions, which
injuries have healed, leaving him subject only to the problems arising from his
pre-existing state.

[50]       
As indicated above, I have found that this is not the case.  As a result
of the accident, Mr. Zhang has been left with significant ongoing right
arm and shoulder weakness, and intermittent pain and discomfort.  He is
restricted in his activities and has suffered a loss of housekeeping capacity. 
This has impacted his ability to participate in family life and social
pursuits, and has impacted his ability to drive.

[51]       
The plaintiff submits that I should assess his non-pecuniary damages in
the range of $65,000-$80,000, increased to take into account his loss of
housekeeping capacity.  The plaintiff relies on Gaudreault v Gobeil,
2015 BCSC 483, Lim v Anderson, 2012 BCSC 263 and Dulay v
Lechance, 2012 BCSC 258.

[52]       
The plaintiff emphasizes the “golden years” doctrine as summarized in Fata
v Heinonen, 2010 BCSC 385 at para 88.  This refers to the greater
impact an injury may have upon an older person, whose activities are already
constrained by age, than on a younger person who is active in many other ways.

[53]       
While I agree that this is a relevant consideration, it must be balanced
by the fact that Mr. Zhang’s pre-accident condition included restrictions
in his right elbow, and a degenerative condition in his shoulder, and by his
shorter life expectancy when compared to younger person.

[54]       
The plaintiff particularly commended to my attention the Gaudreault
case, which involved a 43-year-old plaintiff who suffered tendon tearing in the
shoulder, and had pre-existing but asymptomatic degenerative changes in the
shoulder.  Mr. Justice Thompson awarded $75,000.  I note, however, that by
the time of trial, the plaintiff’s shoulder continued to trouble him all day,
every day, with daily neck pain and low back pain.

[55]       
No two cases, of course, are the same.  In this case, taking into
account the plaintiff’s age, his pre-existing condition, the limitations
imposed by his injury, the fact that the weakness will be ongoing, the impact
on his housekeeping capacity and his ability to participate in family and
social life, I assess his damages at $65,000.

CONCLUSION

[56]       
The defendants are liable for the accident.  The plaintiff is entitled
to non-pecuniary damages of $65,000 and special damages in the amount of
$14,919.79.  The parties may speak to costs.

“GRAUER, J.”