IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151215

Docket: M136904

Registry:
Vancouver

Between:

Eddie Chi Wang
Wong

Plaintiff

And:

Pal Singh Toor

Defendant

Before:
The Honourable Madam Justice Young

Reasons for Judgment

INTRODUCTION

[1]            
On May 5, 2013, Mr. Wong was driving in Abbotsford to meet a real
estate client.  He was stopped at a red light when the vehicle behind his
vehicle was hit by a truck and was pushed into the back of his vehicle.  He
sustained soft tissue injury to his neck which has not completely resolved by
the time of trial which is two years and seven months later.  Mr. Wong was
69 years of age at the time of the accident and in very good health.  His
health remains good but he still suffers from periodic neck pain and stiffness.

[2]            
He says that he retired from his position as a realtor in 2014 because
of the injuries he sustained in the motor vehicle accident.  He says that if he
had not retired, he was anticipating a banner year for earnings despite the
fact that his earnings were declining from 2010 onward.  The loss of earnings
capacity claim is contested.

ISSUES

[3]            
Liability has been conceded by the defendant and special damages are
consented to therefore the issues for determination are:

(a)           
Quantum of non‑pecuniary damages for pain and suffering a loss of
enjoyment of life resulting from the effects of the accident; and

(b)           
Entitlement and quantum of damages for past and future loss of earning
capacity.

THE FACTS

Prior to the Accident

[4]            
Mr. Wong is a slim healthy man now in his early 70s.  He had no pre‑existing
back or neck injuries.  His x-rays show the expected age‑related
deterioration of the spine but he was asymptomatic prior to this motor vehicle
accident and very physically active.  He was an avid swimmer, he liked jogging
and he practised tai chi daily.  He had an active social life.

[5]            
Prior to the accident, he was working as a realtor in the Abbotsford
area.  He started his career as a realtor in 1989 and in 1991 he started
working for Landmark Realty Corp. where he remained until his retirement in July
2014.  He enjoyed some financial success.  He paid off the mortgage on his home
and purchased some rental properties which were sold before the accident.  He
contributed over $200,000 to his first wife’s RRSPs.  His two daughters
completed university degrees which he helped finance.

[6]            
In 2007, his wife Alice was diagnosed with cancer.  They had been
married since 1969.  Her health deteriorated for over two years and she passed
away in March 2010.  This was a difficult time for Mr. Wong and he said it
took a few months to recover and then he was back on his game.  His earnings do
not support that evidence.

[7]            
He was fortunate to meet a woman in January 2012 whom he subsequently
married in October 2012.  She lived in Richmond and he lived in Abbotsford.  He
spent a great deal of time driving back and forth to court his new wife, Joey.  As
a result of the time taken to court Joey, his real estate practice did not
recover financially and he went almost a year with no commission sales.

[8]            
He was then in the motor vehicle accident in 2013.  He continued to work
for over a year after the accident and during that year his sales were higher
than they had been for some time.  I will discuss this more under the heading
of loss of earning capacity.

The Accident

[9]            
The accident occurred around noon on May 5, 2013.  It was a Sunday and Mr. Wong
was on his way to see a client at the client’s house.  He was driving a Toyota Sienna
van which was stopped at a red light when he heard a bang and felt his van
lurch forward.  Pictures of Mr. Wong’s van show significant damage to the
rear of the vehicle.  The vehicle was written off by the Insurance Corporation
of British Columbia.

[10]        
Mr. Wong had no warning of the collision.  Immediately after the
loud bang he said he felt the crash and his van was pushed forward.  The air
bag did not deploy.  It took a minute or two for him to get out of the vehicle
and he felt some pain in his neck.  It isn’t clear whether he felt the pain
before or after he exited the vehicle but I find that not much turns on
this point.  He said that when he got out of the vehicle everything went black
for a while but he agrees that he did not lose consciousness.  It sounds like Mr. Wong
was initially in shock.  He says that everything was pitch black for a while
and then he came to his senses and someone told him that someone hit the
vehicle behind him and then the vehicle behind him hit his vehicle.  It was
clear that he did feel pain in his neck by the time he was having this
conversation.

[11]        
After exiting the vehicle, the plaintiff was leaning on the side of the
vehicle but could not focus enough to make a telephone call so he gave his cell
phone to a bystander and asked him to make a call for him.  He was assisted to
the side of the road where he sat on the sidewalk and waited for the police to
come.  The police called an ambulance.  A collar was put on Mr. Wong’s
neck and he was transported by ambulance to the Abbotsford Regional Hospital.  His
neck was x-rayed and he had a CT scan of his neck.  Once it was confirmed that
he did not have a neck fracture, the collar was removed and he was discharged
home at 11 p.m. without any prescription for medication.  His clearest memory
of this emergency stay was that it took many hours before he saw a doctor and
that he was starving when he left.  He did not recall the pain during his
emergency stay.  A friend drove him home after the accident and took him to
McDonald’s for a late supper.

The Injuries

[12]        
At home, Mr. Wong showered and took some plain Tylenol and went to
bed.  He was feeling neck pain at home.  He was able to sleep until 5:00 a.m.
and when he awoke, his neck was in pain.  When giving evidence, he was holding
the left side of his neck.  Mr. Wong sought medical treatment from his
family physician, Dr. Chan.  Dr. Chan gave evidence at this trial by
way of video deposition.  Dr. Chan noted on his first post‑MVA
examination that Mr. Wong was in a motor vehicle accident, while stopped
at a red light.  He complained of a sore neck but had no loss of consciousness. 
He did have a seat belt on and suffered no memory loss.  He had no prior
history of neck injury.  Upon examination of range of motion, there was
soreness over the right trapezius.  On moving his arms there was no pain.  Although
it was not recorded by him, Dr. Chan said he would have advised Mr. Wong
to do some stretching and take Tylenol for pain.  He did not prescribe any
treatment or medication during that first office visit other than for some
cream for an unrelated dermatitis.

[13]        
Mr. Wong went back to Dr. Chan on June 4, 2013 complaining of
neck pain.  Dr. Chan examined him and again his range of motion was good
but he did have tightness and some mild left shoulder tenderness.  His
examination of the lumbar spine was normal.  Dr. Chan recommended
stretching and prescribed Lyrica and Tylenol No. 2 for pain.  He did not
see Mr. Wong again until September 24, 2013 when Mr. Wong came in
with a chief complaint of right ear soreness due to an ear infection and neck
pain.

[14]        
On September 24, 2013, Dr. Chan noted that Mr. Wong had less
neck pain.  He had some neck stiffness.  Dr. Chan prescribed acupuncture
and a muscle relaxant as needed.

[15]        
The next visit Mr. Wong had with Dr. Chan was on October 8,
2013 when Mr. Wong went in to have Dr. Chan complete the ICBC CL-19
medical form.  On the form, Dr. Chan noted that Mr. Wong’s lumbar
spine was normal but he had difficulty in the cervical spine.  He circled the entry
for “physiotherapy” but agreed on cross‑examination that this was an
error.  Mr. Wong did not wish to go to physiotherapy.  Dr. Chan said
this is not unusual for Chinese patients who prefer acupuncture.  Mr. Wong
told him he preferred acupuncture and that was fine with Dr. Chan.  On the
CL-19 report, Dr. Chan said that Mr. Wong was prevented from working
full‑time because of the injuries.  On cross‑examination he agreed
that this was an error.  Mr. Wong was working full‑time in October
2013.  Dr. Chan noted that Mr. Wong was capable of light to medium
work and that he could not do heavy lifting or repetitive bending.  He noted
subjective neck pain on turning to the right.

[16]        
Dr. Chan saw Mr. Wong on December 23, 2013, January 15, 2014 and
February 19, 2014 for unrelated matters.  On March 10, 2014, Mr. Wong
complained of neck pain and stiffness.  Dr. Chan noted mild restriction on
the range of motion of the neck and recommended that Mr. Wong return to
acupuncture.  He also recommended rehabilitation with a physical trainer.  Dr. Chan
was not aware that Mr. Wong did not pursue physical training at that time.
He saw Mr. Wong on one more occasion for an ear infection and then on
October 21, 2014 he saw Mr. Wong for an unrelated matter and asked him
about his neck pain.  He learned then that Mr. Wong had left work in July
2014.  He did not prescribe any treatment for neck pain.  He noted that Mr. Wong
was continuing to stretch and do swimming exercises.

[17]        
On May 22, 2015, Dr. Chan had Mr. Wong attend at his office
for an examination so that Dr. Chan could complete his medical/legal
report.  Mr. Wong was still having neck soreness especially when turning
to the left.  He complained that he experienced neck soreness while reading.  His
range of motion was good but there was some soreness when examining range of
motion.  The plan was for him to continue with stretches and to exercise at a
gym.

[18]        
Dr. Chan reviewed the x-ray report and CT scan report.  The CT scan
report showed some central spinal stenosis and foraminal narrowing which he
said was age‑related and common for people in Mr. Wong’s age group.  He
did note that this made Mr. Wong more vulnerable to injury.

[19]        
Mr. Wong started his own rehabilitation program after the motor
vehicle accident.  He went to the aquatic centre in Richmond and used the hot
tub and the sauna and did some stretching.  He tried to resume his swimming but
found that the freestyle stroke caused him neck pain so he did some
breaststroke lengths in the pool for about 20 minutes and then used the hot tub
and the sauna.

[20]        
He did enjoy some relief from acupuncture treatments and stopped the
treatments after ten visits in 2013.  He said the relief he enjoyed was
temporary.  A year later in the spring of 2014, the neck pain was
bothering him and he returned for more acupuncture treatments.  He has taken
very few painkillers during his recovery.  In June 2013 he did obtain the
prescription for Tylenol No. 2 and Lyrica which is also an analgesic but
he did not take many of these medications.  He was prescribed Flexeril in
September 2013.  It is unclear whether he took this medication.  Other than
that, he took the occasional plain Tylenol.  By the time of trial, he had not been
taking anything for pain for many months.  Prior to the accident, Mr. Wong
did tai chi daily.  He said on examination in chief that he found the poses too
difficult after the accident.  On examination for discovery, he said he used to
do tai chi every day before the accident but he didn’t even try it after the
accident.

[21]        
On May 21, 2015, at the request of his lawyer, Mr. Wong was
examined by Dr. Max Kleinman who is a physiatrist.  At that time, Dr. Kleinman
noted that Mr. Wong continued to experience stiffness throughout the left
side of the cervical spine extending to the trapezius region.  He complained of
intermittent pain depending on his activities.  His range of pain on a pain
evaluation scale; where 0 is no pain and 10 is the worst pain experienced in
one’s life; was in the region of 2‑3/10.  Mr. Wong said he was about
50% improved since the accident.  He also complained about increased pain when
driving or when reading for one to two hours.  He expressed some fear of
driving after the accident.

[22]        
On physical examination, Dr. Kleinman noted tenderness on Mr. Wong’s
left upper trapezius, levator scapulae, rhomboid and periscapular muscles.  He
had reduced cervical range of motion in rotation and flexion.

[23]        
Dr. Kleinman diagnosed Mr. Wong as having an initial tearing
and strain of the cervical and upper thoracic spine as a result of the
accident.  He was of the opinion that the initial soft tissue pathology has now
given way to the development of chronic scar tissue that impacts Mr. Wong
by causing pain and disability.

[24]        
He saw no pain amplification behaviour in Mr. Wong.  He noted that Mr. Wong
has suffered an incomplete recovery from his accident‑related injuries
with no evidence of any type of functional overlay from a physical perspective.

[25]        
The nature of the injury and the long duration of Mr. Wong’s
symptoms are negative prognosis indicators.  Dr. Kleinman is not willing
to state emphatically that Mr. Wong has reached maximum recovery though because
he has only had minimal therapy since the accident.

[26]        
 Dr. Kleinman recommended some physical conditioning with a
trainer.  He anticipates that his pain level will increase for a while but he
should be re‑evaluated after he has undergone an eight to ten week
treatment program.

[27]        
He also recommended that Mr. Wong be assessed by a psychologist for
help with his driving anxiety.

[28]        
In 2015, after seeing Dr. Kleinman, Mr. Wong did follow this recommendation
and saw a kinesiologist for a short period of time.  He performed a supervised
exercise program with the kinesiologist using light weights but predictably he
experienced some increased pain.  Unfortunately he did not get re‑evaluated
and he stopped the program after ten sessions.  He says that he is willing to
attempt it again if his doctor recommends it, but I am sceptical about his evidence.
Mr. Wong is a man who likes to run his own program.  In the past, he is
told his doctors what he is willing to do.  He researched his own stretching
program on the internet and he is not willing to go to physiotherapy.  He is
also not willing to see a psychologist for his driving anxiety.  He was not
willing to adapt his workplaces so that it was less stressful on him.

[29]        
Mr. Wong says that his injuries have reduced his socializing.  He
said he played cards a lot before the accident, both with colleagues and other
men.  On examination for discovery, he listed three men that he played cards
with on a regular basis.  These men were called as witnesses and said that they
either had not played cards with him since 2006 or had never played cards with
him.

[30]        
He said he doesn’t go to the movies anymore because it hurts his neck. 
He has reduced his travelling.  He went on a bus tour to Yellowstone Park after
the accident and found it very uncomfortable.

[31]        
Mr. Wong has not tried working since July 2014 and he says he misses
his work.  He stated his neck pain has not changed in the last year; it comes
and goes.  It bothers him after long driving trips or after exercising.

Credibility and Reliability of Evidence

[32]        
The factors to be considered when assessing
credibility were summarized by Dillon J. in Bradshaw v. Stenner,
2010 BCSC 1398 at para. 186, aff’d 2012 BCCA 296, as follows:

Credibility
involves an assessment of the trustworthiness of a witness’ testimony based
upon the veracity or sincerity of a witness and the accuracy of the evidence
that the witness provides (Raymond v. Bosanquet (Township) (1919), 59
S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination
of various factors such as the ability and opportunity to observe events, the
firmness of his memory, the ability to resist the influence of interest to
modify his recollection, whether the witness’ evidence harmonizes with
independent evidence that has been accepted, whether the witness changes his
testimony during direct and cross-examination, whether the witness’ testimony
seems unreasonable, impossible, or unlikely, whether a witness has a motive to
lie, and the demeanor of a witness generally (Wallace v. Davis, [1926]
31 O.W.N. 202 (Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 152
(B.C.C.A.) [Faryna]] R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para. 128
(S.C.C.)). Ultimately, the validity of the evidence depends on whether the
evidence is consistent with the probabilities affecting the case as a whole and
shown to be in existence at the time (Faryna at para. 356).

[33]        
If the plaintiff’s account of his or her change
in physical, mental, and or emotional state as a result of the accident is not
convincing, then the hypothesis upon which any expert opinions rest will be
undermined: Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431 at paras. 15,
49 and 50.

[34]        
There were a number of inconsistencies in Mr. Wong’s description of
his injuries and the severity of his pain on a scale of one to ten.  He was
also fairly inconsistent in his description of his before and after motor
vehicle activities that he claimed to previously enjoy and to now be prevented
from doing because of the injuries.  I found his evidence of his reason for
retiring questionable and unsupported by any corroboration.  He could have
called his wife to give evidence or he could have lead evidence from his former
real estate partner and friend, Shawn Wang about his retirement intentions when
Mr. Wang took the witness stand.

[35]        
At the end of the day, I find most of the inconsistencies are not
material.  I find that Mr. Wong was not as socially active as he claims to
have been prior to the accidence.  I also find that his pain level was best
reported to his medical practitioners and on discovery and that it was inflated
at trial.  If Mr. Wong was suffering level five pain all the time, then I
believe he would have sought treatment or taken at least a Tylenol for relief. 
The fact that he did not leads me to conclude that his pain has been at a much
more manageable level at least for the last year.

[36]        
I also am very sceptical about his income forecasts but for the
accident.  There is no independent evidence to show that he was ramping up his
advertising in order to attract more clients or of any non‑financial
promotional activities he was engaging in.  I do not believe he could increase
his billings from $17,000 or $33,000 to $80,000 in one year.

Law on Non-Pecuniary Damages

[37]        
Non-pecuniary damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life and loss of amenities.  The compensation
awarded should be fair to all parties and fairness is measured against awards
made in comparable cases.  Such cases, though helpful, serve only as a rough
guide.  Each case depends on its own unique facts: Trites v. Penner,
2010 BCSC 882 at paras. 188-189.

[38]        
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined
the factors to be considered when assessing non-pecuniary damages at para. 46:

The inexhaustive list of common factors cited in Boyd v.
Harris, 2004 BCCA 146 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
BCCA 54).

[39]        
The assessment of non‑pecuniary damages is necessarily influenced
by the individual plaintiff’s personal experiences in dealing with his or her
injuries and their consequences, and the plaintiff’s ability to articulate that
experience: Dilello v. Montgomery, 2005 BCCA 56 at para. 25.

[40]        
The correct approach to assessing injuries which depend on subjective
reports of pain was discussed by McEachern C.J. in Price v. Kostryba
(1982), 70 B.C.L.R. 397 (B.C.S.C.) (recently quoted with approval in Edmondson
v. Payer, 2012 BCCA 114 at para. 2).  In referring to an earlier
decision, he said:

In Butler v. Blaylock, [1981] B.C.J. No. 31, decided 7th
October 1981, Vancouver No. B781505, I referred to counsel’s argument that
a defendant is often at the mercy of a plaintiff in actions for damages for
personal injuries because complaints of pain cannot easily be disproved. I then
said:

I am not stating any new principle when I say that the court
should be exceedingly careful when there is little or no objective evidence of
continuing injury and when complaints of pain persist for long periods
extending beyond the normal or usual recovery.

An injured person is entitled to
be fully and properly compensated for any injury or disability caused by a
wrongdoer. But no one can expect his fellow citizen or citizens to compensate
him in the absence of convincing evidence – which could be just his own
evidence if the surrounding circumstances are consistent – that his complaints
of pain are true reflections of a continuing injury.

[41]        
Mr. Wong’s counsel have referred me to the following cases which I
have reviewed:

[42]        
In Macintosh v. Davison, 2013 BCSC 2264, the injury to the plaintiff’s
upper back, shoulder, neck and hand and migraines were caused by the accident
and were resolved within a short period of time following the accident.  The
plaintiff suffered chronic lower back pain which would likely be a lifelong
condition.  The plaintiff was awarded $72,000 in non‑pecuniary damages
for loss of pain and suffering a loss of enjoyment of life.

[43]        
At the time of the accident, the plaintiff, Mr. Macintosh, was
almost 57 years old.  He was a well‑qualified professional real estate
appraiser.  Before the collision he enjoyed an active social life and was
physically fit and worked on strength and aerobic aspects of fitness.  He had a
passion for golf.  He continued to go to physiotherapy once a week and a core
exercise program three times a week so that he could continue playing golf.  Three
years after the accident his symptoms had plateaued.  The persistent lower back
pain continued with continued complaints of daily back pain.  He continued to
wake up at night in pain despite taking Tylenol with codeine before bed.  He
would wake up in the morning with pain and have to take another Tylenol with codeine.

[44]        
The plaintiff did have a pre‑existing lower back condition.  Davies
J. found the plaintiff to be credible.  He found his plateau, which he had
reached, rendered him a far different person than the one he was prior to the
collision.  The plaintiff’s life for years after the collision was dominated by
the effects of the collision.  He has followed all of the medical advice he
received in an attempt to regain his health.  His enjoyment of the game of golf
was lessened.  It was clear that the medical plateau would likely endure for
the balance of his active life.  The court awarded $90,000 in general damages
and reduced it by 20% because of the pre‑existing condition.  He was awarded
$72,000 to compensate him for his non‑pecuniary losses.  I find he was
more seriously injured than Mr. Wong.

[45]        
In the case of Javier v.Hooper, 2014 BCSC 1253, the plaintiff was
a 56‑year‑old real estate salesperson at the time of trial.  She
had been involved in three motor vehicle accidents, the most serious of which
being the third accident.  The plaintiff suffered from ongoing neck pain, right
shoulder pain, low back pain and intermittent headaches following the third
accident.  The plaintiff’s symptoms two years after her third accident were likely
going to be ongoing and she would be unable to do physically demanding work.  The
plaintiff says she had improved 70% from the injuries however she does not have
any pain free days.  She described pain in her right shoulder and upper back as
always there and at times, after prolonged sitting and driving, as
“excruciating”

[46]        
She suffered from an anxiety condition and a pre‑accident
adjustment disorder with depression and anxiety.  She was found to be a
credible witness.  The court awarded $70,000 for damages.  I find that Ms. Javier’s
level of pain and anxiety were more severe than Mr. Wong’s are.

[47]        
In Brown v. Bevan, 2013 BCSC 2136, before the collision, the
plaintiff was a healthy 59‑year‑old.  Her injuries included injury
to her neck and upper back, shoulders, knee, right chest and Achilles
tendinitis in both feet.  She also suffered some cognitive difficulties.  The
court felt her left heel issue was indirectly related to the collision and
resulted from overcompensating for the injuries she received in the right foot.
At the time of trial, some four years after accident, the plaintiff continued
to suffer from headaches and neck pain upper back and knee pain and left heel
symptoms.  The court found she would suffer from these symptoms well into the
future and quite likely permanently.  The medical evidence consistently said
that the plaintiff’s symptoms had plateaued.  The court awarded $95,000 in
general damages.  The injuries in this case appear to be significantly worse
injuries and more debilitating than the injuries suffered by Mr. Wong.

[48]        
In Boysen‑Barstow v. Insurance Corporation of British Columbia,
2015 BCSC 1740, the 45‑ year‑old plaintiff suffered moderate soft
tissue injuries causing her neck and back pain and headaches.  The headaches
resolved within a few months and the other physical discomfort gradually
resolved to the point that the plaintiff was substantially pain‑free by
two years after the accident.  She was vulnerable to back discomfort with
prolonged sitting.  The phobia that she experienced while travelling in a motor
vehicle after the accident was a factor in her decision to end her employment.  The
court found that this condition was substantially resolved however, there was a
lingering unease of a minor magnitude.  The damage award was $70,000.  I find
that there are similarities between this case and Mr. Wong’s case although
the plaintiff was considerably younger that Mr. Wong.

[49]        
The defendant relied on the following cases:

[50]        
In Gulbrandsen v. Mohr, 2012 BCSC 1869, the plaintiff was awarded
$25,000 in non‑complete pecuniary damages for a mild to moderate soft
tissue injury to her upper back as well as episodes of dizziness.  The
plaintiff’s evidence contained inconsistencies and the court found the
plaintiff was not a trustworthy witness.  I find that the injuries were not as
severe Mr. Wong’s injuries.

[51]        
In Carter v. Zhan, 2012 BCSC 595, the plaintiff suffered moderate
soft tissue injuries which resulted in pain and stiffness in diffuse areas of
her body and her jaw which persisted for three years with lingering effects
thereafter.  Four a half years after the accident, her family physician was of
the opinion that her clinical improvement had plateaued to the point that she
was left with partial disability due to her soft tissue injuries.  The court
did not accept the plaintiff’s submission that her injuries were permanent.  The
trial judge was troubled by the plaintiff’s lack of effort to obtain treatment
for the alleged accident injuries following the secession of physiotherapy and
massage therapy in 2007 for more than four years prior to trial.  The
non-pecuniary award was $35,000.  In the judge’s view, the plaintiff could make
greater efforts to recover if her injuries were as serious as she maintained
they were.

[52]        
In the present case, I do accept the opinion of the specialist that the
lingering effects of the accident are likely permanent.  Mr. Wong may have
achieved a more complete recovery if he had pursued more therapy but that
recovery cannot be quantified.  I am also of the view that the residual effects
that he suffers are mild and intermittent as I have a similar belief that Mr. Wong
would have made a better effort to obtain therapy if his condition was as severe
as he said it was at trial.

[53]        
In Manson v. Kalar, 2011 BCSC 373, the plaintiff suffered mild to
moderate soft tissue injuries where the symptoms persisted for almost three years
following the accident and were not resolved.  The court awarded damages of
$25,000.  The plaintiff failed to lead sufficient evidence to persuade the
court that the significant change in his activities and lifestyle was solely
attributable to the injuries sustained in the accident.

[54]        
In Olianka v Spagnol, 2011 BCSC 1013, the plaintiff was 53 years
of age at the time of the accident.  He suffered moderate soft issue injuries
to the neck and mid‑back and mild injuries to his lower back.  The
injuries compromised the plaintiff’s ability to work and precluded him from
participating in leisure activities.  Three years after the accident he still
experienced occasional pain but had returned to his regular activities with
some limitation.  He still experienced intermittent pain in his neck and back
which was not expected to be permanent but was expected to resolve over time. 
The court awarded the plaintiff $30,000 in damages.

[55]        
In the present case, Mr. Wong has not returned to many of his pre‑accident
activities and the residual effects of the accident are considered to be
permanent so I find that this award is too low.

[56]        
In Larouche v MacPhail, 2007 BCSC 1451, the 38‑year‑old
plaintiff suffered soft tissue injuries to the neck which had not resolved
three years later.  She suffered a day of pain every two weeks.  The court
found that her injuries were not likely to improve and awarded $30,000 in
damages.  I questioned whether this award eight years later might have been
higher as the case is fairly dated.

Conclusion on Non-Pecuniary

[57]        
I will analyse the factors before arriving at my conclusion:

(a)           
The plaintiff was 69 years of age at the time of the accident and 71 at
the time of trial.

(b)           
He sustained a moderate soft tissue injury to the neck.

(c)           
The pain has ranged between the mild to moderate range and I find that
the residual effect of the accident is in the mild/intermittent range but is
likely to be permanent.

(d)           
There are intermittent periods of disability where the plaintiff only
gets relief from lying down and resting.  He might get more effective relief if
he were to take analgesics or pursue more acupuncture.

(e)           
I find that Mr. Wong has residual discomfort with driving.  It is
not completely debilitating.  He is able to drive but he still feels some ill
ease at stop lights.

(f)             
There has been some loss of enjoyment of life.  Mr. Wong enjoyed
excellent health before the accident and now he suffers intermittently from
neck pain that never goes away.  He has curtailed certain leisure activities
that he used to enjoy and I find that the pain and fear of driving contributed
to his decision to retire.

[58]        
Given those findings, Mr. Wong is entitled to $45,000 for general
damages.

Past Loss of Earning Capacity

[59]        
Compensation for past loss of earning capacity is to be based on what
the plaintiff would have, not could have earned but for the injury that was
sustained: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30; M.B.
v. British Columbia, 2003 SCC 53 at para. 49.

[60]        
Pursuant to s.98 of the Insurance (Vehicle) Act, R.S.B.C. 1996,
c. 231, a plaintiff is entitled to recover damages for only his or her
past net income loss.  This means that in the ordinary course the court must
deduct the amount of income tax payable from lost gross earnings: Hudniuk v.
Warkentin, 2003 BCSC 62.  The trial judge has a discretion to determine
what period or periods [of time] are appropriate for the determination of net
income loss: Lines v. W.D. Logging Co. Ltd., 2009 BCCA 106 at paras. 181‑186.
In exercising this discretion, the trial judge should keep in mind that the
plaintiff is to be put back in the position he or she would have been in had
the accident not occurred (Lines at paras. 185‑186).

[61]        
The burden of proof of actual past events is a balance of probabilities.
An assessment of loss of both past and future earning capacity involves
consideration of hypothetical events.  The plaintiff is not required to prove
these hypothetical events on a balance of probabilities.  The future or
hypothetical possibility will be taken into consideration as long as it is a real
and substantial possibility and not mere speculation: Athey v. Leonati,
[1996] 3 S.C.R. 458 at para. 27; Morlan v. Barrett, 2012 BCCA 66 at
para. 38.

Loss of Earnings Evidence

[62]        
Shortly after the accident, Mr. Wong lost three clients because he
did not have a vehicle.  He then leased a Lexus RX 350 sport utility vehicle
for work and pleasure.  He thought this would be a safer vehicle to drive.  He
has continued to be nervous about driving since the accident.  He’s afraid of
having another accident.  Also, when he drives long distance, he has neck pain.
The longer he drives the more pain he experiences.  He found the drive from
Richmond to Abbotsford difficult.  It takes at least one hour.  The plaintiff was
asked why he and his new wife didn’t relocate to Abbotsford and his answer was
that Joey was not willing to move to Abbotsford.

[63]        
I find that the pain and fatigue and driving anxiety did impair his earning
capacity.

[64]        
On examination‑in‑chief, Mr. Wong said he could drive
20 minutes without pain.  After that he felt a needle pain to his neck which
usually started at the time he got to the Alex Fraser Bridge.  On the way to
Abbotsford, pain increased and by the time he arrived, it was nonstop and felt like
several needles to the left side of his neck in the top of his left shoulder.  This
evidence was different from the evidence he gave at his examination for
discovery where he said he could drive an hour without having pain in his neck.
On cross‑examination he said that the evidence at his examination for
discovery was wrong.

[65]        
Mr. Wong still has some driver anxiety.  He has problems at red
lights and keeps looking back to see if someone is going to rear end him.  He
is not willing to seek therapy for this.

[66]        
In addition to driving, other aspects of his work bother him including
prolonged reading, preparation of paperwork and preparation of mass mail‑outs.
There was no evidence led that he attempted a mass mail‑out after the
accident but as a realtor he was required to prepare paperwork.  While he
worked after the accident, he would often return to his house in Abbotsford and
lay down to rest in the middle of the day.

[67]        
He said in February 2014 he and Joey talked about whether he should
continue working.  She encouraged him to stop because she didn’t want him to
drive back and forth every day.  I note that Mr. Wong did not call his
wife to give evidence so this is just hearsay.  I accept his evidence that the
driving back and forth from Richmond was bothering him.  They made a decision
that he would list his house in Abbotsford for sale.  He stopped working as a
realtor in July 2014 and Joey stopped her work as a beautician at the same
time.

[68]        
When asked what the reasons for stopping work he said his pain was
impacting his ability to talk to people and to promote himself.  He explained
that he could not smile or express himself fully when he was suffering from
neck pain and he didn’t feel like working anymore.  He claimed that he was
planning on continuing to work as a realtor for as long as he could but for the
accident.  In July 2014 he moved into Joey’s house and listed his house for
sale.  The sale of his house completed at the end of October 2014.

[69]        
Evidence was led of Mr. Wong’s gross business earnings for several
years prior to and after the accident:

[70]        
Mr. Wong explained that his income dropped after 2007 because his
wife Alice was diagnosed with cancer and was undergoing cancer treatment
between 2007 and 2010.  In 2010 he was recovering from her death.  In 2011 he was
starting to recover.  In 2012, he met Joey and spent a great deal time courting
Joey and therefore his income was very low.  In 2013, he says he was back on
track and projecting earnings of $80,000 and then had the car accident.

[71]        
Counsel reviewed the number of listings that Mr. Wong had each
year.  Not all listings resulted in sales.  It appears that the success
rate with listings was between 37.5% and 50% listings resulting in a completed
sale.

[72]        
In 2013, Mr. Wong completed three sales and earned $33,807 from
them.  That means that the average commission was $11,889.  He lost three
listings but it is not likely that all three listings would have resulted in a
sale.  The success rate with listings that year had been 50% so I find that a
reasonable rate to apply.  On a balance of probabilities, I am prepared to award
50% of $33,807 which is $16,903 for past loss of income for 2013.

[73]        
Business expenses were approximately 50% of gross earnings so his actual
award should be reduced by the expenses he would have had to incur to earn that
income $8,451.

[74]        
I have estimated with the benefit of an internet income tax calculator
that his federal income tax would be 15% and his provincial tax would be at
most 5%.  With this modest reduction of 20% for income tax he is left with a
past loss of income of $6,760 for 2013.

[75]        
Mr. Wong argues that, but for the accident, he would have continued
to work as a realtor indefinitely.  I do not accept that evidence.  In 2013 and
2014 his business was recovering from a significant drop in his activity.  To
increase his listing he would have had to put in a concentrated advertising and
promotion effort which would have taken time and financial investment.  He was
reducing his advertising expenditure instead of increasing it.

[76]        
He moved out of the Abbotsford area to live with his wife who would not
live in Abbottsford.  He therefore lost the community connection of living in
the area he was promoting.  He added two to three hours of commuting time to
his day.  I find it highly likely than he would have found this commuting too
tiring even if he had not been injured.  If he were to be making a concerted
marketing effort, he would be away from home at least ten hours a day given the
commuting time and I cannot believe that he would sustain that work life given
his age and his recent remarriage.

[77]        
I find that Mr. Wong likely would have retired at the time the
house sold.  The accident is a contributing factor to his decision to retire
but I find he likely would have done so by October 31, 2014 in any event.

[78]        
Had he not been affected by the accident, I find that a reasonable projection
of income for 2014 would have been $60,000.  He had earned that amount in
2011.  If he retired in October 2014, he would have earned 83% of that amount
which would have been $50,000.  He actually earned $18,478.  His damage for
loss of past earning capacity is $31,522 for 2014.  Again, I have to put Mr. Wong
back in the place he would have been in and therefore this award must be
reduced for business expenses he would have had to expend.  I will use the 50%
estimate again as the one most favourable to him; His income loss after
expenses would have been $15,761.  A modest 20% income tax reduction leaves a
net loss of $12,600.

[79]        
2013 award of $6,760.00.

[80]        
2014 award of $12,600.00.

[81]        
The total past loss of earning capacity award is $19,360.

Future Loss of Earning Capacity

[82]        
Given my finding that Mr. Wong would have retired in any event by
October 31, 2014, there is no claim for future loss of earning capacity.

SUMMARY

I award the following:

1.       General Damages
Award: $45,000;

2.       Past Loss of
Earning Capacity: $19,360; and

3.       Special Damages (by consent): $4,654.83.

COSTS

The plaintiff is entitled to
costs at Scale B provided there are no offers to settle that exceeded this
award.  If the parties wish to make submissions as to costs then they shall
submit written submissions on the issue of costs within thirty day of the date
that this decision is released.

“Young J.”