IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111130

Docket: M090697

Registry:
Vancouver

Between:

Shao Ng

Plaintiff

And

Mandeep Sarkaria
and Kashmir Sarkaria

Defendants

Before:
The Honourable Mr. Justice Butler

Reasons for Judgment

[1]            
Shao Ng was driving home in the early morning of July 22, 2007 when his
Dodge Durango was struck by a car driven by the defendant, Mandeep Sarkaria. 
At the time of the collision Mr. Ng was driving north on Granville Street.  The
defendants’ vehicle unexpectedly turned left into the path of the Durango.  The
force of the impact was significant.  The airbags in Mr. Ng’s vehicle were
deployed as a result of the collision.  The vehicle ended up on the sidewalk on
the east side of Granville Street.  The defendants have admitted liability for
the accident.

[2]            
Mr. Ng suffered injuries to his neck, back and right knee as a result of
the accident.  The knee and neck injuries resolved as expected.  However, the
lower back problems persisted.  At the time of the accident, Mr. Ng worked for
Shaw Cable (“Shaw”) as a Technical Field Representative (“TFR”).  He missed a
considerable amount of work as a result of his injuries but successfully
completed a return to work program through Karp Rehabilitation.  He returned to
work in March 2008 on a graduated basis with short work days and limited
responsibilities.  He finished the Karp program in June 2008.  However, he
suffered relapses throughout the summer and fall.  In November 2008, and in
early January 2009, Mr. Ng experienced the onset of severe pain in his back and
right leg.  He was subsequently diagnosed with right-sided sciatica.  An MRI
revealed a large focal disc protrusion at L4-5 and a less significant
protrusion at L5-S1 (the “Herniations”).  He underwent a partial discectomy in
March 2009.  He has been able to return to work but has to be cautious about
his activities both at work and at leisure.

[3]            
The significant issue in this case is whether Mr. Ng has proved that the
Herniations were caused by the accident.  The damage assessment turns on the
answer to this question.  For the reasons that follow, I conclude that the Herniations
were caused by the accident and I have assessed damages accordingly.

Causation

Mr. Ng’s Argument

[4]            
Mr. Ng says he has proved that the Herniations would not have occurred
but for the trauma he suffered in the accident.  He notes that prior to July
2007 he was fit and active.  He had no history of problems with his lower back
or with radiating pain in his lower extremities.  He was able to perform all of
the tasks required for his work and active lifestyle without pain or
disability.  He argues that his lack of symptoms prior to the accident and the
temporal connection between the accident and the onset of symptoms makes it
possible to conclude that the accident is a cause of the injury.  While he
acknowledges that he did not experience disabling sciatic pain until more than
a year after the accident, he did experience some leg and ankle pain in the
months following the accident.  Mr. Ng says that he was suffering from
right-sided sciatica at that time and relies in part on the findings of Dr.
Tsang, a rheumatologist to whom he was referred in October 2007.  Dr. Tsang
noted that Mr. Ng had symptoms consistent with right-sided sciatica.  Mr. Ng
was not diagnosed with disc herniation until much later but says the early
findings indicate that the bulging of the disc had been triggered by the
accident.  Mr. Ng relies on the evidence of Dr. Wong, his family physician and
Dr. Aitken, an orthopaedic surgeon who provided a medical-legal report.  Both
physicians opine that the Herniations and sciatica were caused by the accident.

Defendants’ Argument

[5]            
The defendants admit that Mr. Ng suffered a Grade II soft tissue injury
to his lumbar spine, neck and chest in the accident.  In addition, they admit
that he suffered a contusion and soft tissue injury to his right knee. However,
they say that Mr. Ng has failed to prove a substantial connection between the
Herniations and the motor vehicle accident and therefore has failed to
establish causation.

[6]            
The defendants argue that the evidence is at least equally consistent
with a conclusion that the Herniations were caused by degeneration of the spine
due to age and work-related stresses.  In other words, Mr. Ng has not met the
burden of proof.  The defendants stress that Mr. Ng’s job required him to
undertake many activities that have the potential to cause back injury and
degeneration of the spine.  He had to lift and carry heavy objects and work in
awkward positions in confined spaces.  They criticize Dr. Aitken for failing to
take a proper history of Mr. Ng’s work activities leading up to the significant
symptoms he experienced in November 2008 and January 2009.  The defendants argue
it is more likely that the Herniations were caused by the natural degeneration
of Mr. Ng’s spine and the stress on the spine from work activities.  The
defendants rely on Dr. Dommisse who stated that it is “uncertain as to whether
the right L4/5 and L5/S1 disc herniations were caused directly by the
[a]ccident”.  He says it is more likely that Mr. Ng’s work-related activities
contributed to his back symptoms.

Law

[7]            
The law regarding causation is not controversial, even though the
application of the law to the facts is often difficult.  A plaintiff must
establish on a balance of probabilities that the defendant’s negligence caused
or materially contributed to an injury.  The defendant’s negligence need not be
the sole cause of the injury so long as it is part of the cause beyond the de
minimus range.  Causation need not be determined by scientific precision: Athey
v. Leonati, [1996] 3 S.C.R. 458, at paras. 13-17.

[8]            
The primary test for causation asks:  but for the defendant’s
negligence, would the plaintiff have suffered the injury?  The “but for” test
recognizes that compensation for negligent conduct should only be made where a
substantial connection between the injury and the defendant’s conduct is proven:
 Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, at paras. 21-23.

[9]            
Causation must be established on a balance of probabilities before
damages are assessed.  As McLachlin, C.J.C. stated in Blackwater v. Plint,
[2005] 3 S.C.R. 3, at para. 78:

Even though there may be several
tortious and non-tortious causes of injury, so long as the defendant’s act is a
cause of the plaintiff’s damage, the defendant is fully liable for that damage.
The rules of damages then consider what the original position of the plaintiff
would have been.  The governing principle is that the defendant need not put
the plaintiff in a better position than his original position and should not
compensate the plaintiff for any damages he would have suffered anyway:  [Athey
v. Leonati].

[10]        
The most basic principle of tort law is that the plaintiff must be
placed in the position he or she would have been if not for the defendant’s
negligence, no better or worse.  The tortfeasor must take his or her victim as
they find them, even if the plaintiff’s injuries are more severe than they
would be for a normal person (the thin skull rule).  However, the defendant
need not compensate the plaintiff for any debilitating effects of a
pre-existing condition which the plaintiff would have experienced anyway (the
crumbling skull rule): Athey v. Leonati, at paras. 32-35.

Analysis

[11]        
I will commence my analysis by reviewing the background and setting out
my findings of fact regarding Mr. Ng’s symptoms and injuries.  I will then
analyze the medical evidence in light of these findings.  Finally, I will set
out my conclusions, taking into account my findings of fact and the legal
principles.

[12]        
I will preface my analysis by setting out my conclusion regarding Mr.
Ng’s credibility.  The defendants do not take issue with Mr. Ng’s reliability
as a witness.  This concession is well founded.  I conclude from all of the
evidence that Mr. Ng was frank and honest with his physicians and that he was
truthful when giving evidence at trial.  He did not exaggerate the extent of his
pain or disability.  During the course of his recovery, he took reasonable
steps to mitigate his damages and strove actively to return to work as soon as
he could.  He was, as described by counsel, stoic.  I have no hesitation in
accepting his evidence regarding the nature of his symptoms and the effect the
injuries have had on his daily life.

[13]        
At the time of the accident, Mr. Ng was fit and active.  He was 31 years
old.  His recreational activities included weight training, workouts, and the
occasional game of basketball.  He liked to do the work necessary to maintain
his older home in North Burnaby.  He did most of the gardening and yard work. 
When he acquired the house he performed most of the labour for extensive
renovations.

[14]        
In addition to his active home life, he became a TFR for Shaw in 2005. 
The job demanded a considerable amount of light to moderate physical activity.  This
included lifting a 55-pound ladder off of the roof of the Shaw truck to work on
pole-to-house cable installations.  He was frequently required to bend, kneel
and crouch in confined spaces to do inside installations.  Mr. Ng had no
difficulty carrying out all of the tasks required for that job.  Prior to the
accident, he experienced no back pain and had no other symptoms of spinal
injury or degeneration.

[15]        
In the accident, Mr. Ng’s vehicle suffered one major and two minor
impacts.  The initial major impact was to the driver’s front corner of the
vehicle.  The vehicles rotated such that the defendants’ car struck a passenger
door of Mr. Ng’s vehicle.  Finally, Mr. Ng’s vehicle struck a small tree on the
boulevard.  The Durango was a write-off.

[16]        
Mr. Ng was in shock as a result of the collision and has no recollection
of the second and third impacts.  He got out of his vehicle with the assistance
of other motorists and sat down to await the emergency responders.  He and Ms.
Mah, who was a passenger in the vehicle and is now his wife, were in a state of
shock.  They declined the offer to attend at the emergency department.  The
next day, Mr. Ng began to experience pain in his neck, mid and lower back and
attended a walk-in clinic.  He first saw Dr. Wong on July 25, 2007.

[17]        
Dr. Wong’s two reports detail Mr. Ng’s condition and his complaints of
pain from July 25, 2007 to November 2008 when Dr. Wong recommended he have an
MRI performed shortly after Mr. Ng had a serious relapse or exacerbation of his
back pain.  The MRI revealed the Herniations described above.  I accept the
description of Mr. Ng’s symptoms as described by him and contained in Dr.
Wong’s reports.  I will set out a brief chronology of the development of these symptoms:

·    
The initial diagnosis was a muscle-ligament strain of the neck,
mid and lower back.  There was a mild contusion to the right knee.  Dr. Wong
described this as extremely minor.  The range of motion in his back was
compromised and he was having difficulty sleeping.  He could not work.

·    
By early August, his back pain, headaches, and decreased sleep
were unchanged.  His right knee had improved but he was still limping.  Dr.
Wong’s clinical records show areas both above and below the knee where Mr. Ng
said he was experiencing pain.  He was prescribed Tylenol #3 for the pain.  He
was unable to work.

·    
It is noteworthy that Mr. Ng testified that he experienced
difficulty walking in the first weeks after the accident.  When he walked for
extended periods he felt pressure in his lower back.  He limped and experienced
pain down his right side to his ankle.  The more he walked, the pain became worse
in both his hip and ankle.

·    
There was no subjective or objective change to his condition
through August and early September and so Dr. Wong referred him to Dr. Tsang, a
rheumatologist.

·    
Dr. Tsang saw Mr. Ng on October 23, 2007.  He was not called as a
witness.  Dr. Tsang’s consult report describes an incident where Mr. Ng
experienced severe pain in his lower back which was referred down to his right
leg and foot.  Dr. Tsang’s report states that in spite of Mr. Ng’s report of
symptoms consistent with right sciatica, Dr. Tsang could not find, on
examination, clinical signs to support a diagnosis of sciatica.

·    
The failure to find clinical signs of sciatica is, perhaps,
understandable.  At the time of his initial assessment at Karp Rehabilitation,
Mr. Ng was found to have a very limited straight leg raise (“SLR”) both on his
right and left side.  This finding is a clinical sign of sciatica.  Throughout
Mr. Ng’s treatment, physicians recorded the results of the SLR test – surprisingly,
these varied considerably from time to time.  The SLR test was normal at other
times, even when Mr. Ng experienced debilitating sciatic pain in January 2009. 
In other words, the SLR test is not a reliable clinical sign of sciatica for
Mr. Ng.

·    
Mr. Ng started a rehabilitation program at Karp Rehabilitation on
October 25, 2007.  His back symptoms gradually improved until March 18, 2008
when he started a graduated return to work program with Shaw.  He did light
duties four hours per day but did not perform the activities of his previous
job.  In June 2008, Mr. Ng was able to return to his former duties as a TFR,
although he could only do about 80% of the work he had formerly done.  He felt
that his physical condition had improved such that he was about 80% better.

·    
After he started to perform the full duties of his position as a
TFR, he found that he experienced pain throughout the day at work.  It became
worse with prolonged activities.  Finally, in early August 2008, Mr. Ng found
that he could not continue to work because of the back pain.  He took two and a
half weeks off of work and then went back to performing light duties for about
a month.

·    
In October 2008, Mr. Ng and Ms. Mah travelled to Malaysia to
visit his grandmother.  The prolonged plane trip exacerbated his back pain.  In
Malaysia his family did a lot of visiting which involved long drives and
walking.  Mr. Ng spent much of that time in the car with the driver rather than
walking about as he found that to be too painful.

·    
When he returned to work, Mr. Ng again struggled to perform his
duties with pain that increased throughout the day.  In mid-November he was sitting
in a lobby waiting for a customer to take him up to an apartment.  Mr. Ng stood
up and felt a stabbing pain in his back.  He felt as if his back was seizing
up.  He walked that off and managed to finish the job.  He then went to his
truck, lowered the seat, and lay down.  He realized he could not continue to
work in that condition.  He also came to the realization that his condition was
deteriorating, not improving.

·    
Mr. Ng saw Dr. Wong five times between November 18 and December
16, 2008.  The pain symptoms persisted and did not respond to medication
including Tylenol #3 and Celebrex.  Mr. Ng complained of pain in his right leg
down to his ankle.  On December 16, Dr. Wong referred Mr. Ng for an MRI as a result
of his tentative conclusion that Mr. Ng was experiencing radiating pain in his
right leg and foot.

·    
On January 6, 2009 as Mr. Ng was getting ready to go to work, his
back seized up again.  He described the pain as excruciating.  He was taken to
the emergency ward at Burnaby General Hospital.  Coincidentally, the result of
the MRI performed the day before was available on that day.  It was then
apparent that Mr. Ng was suffering from sciatica as a result of the Herniations.

·    
In an attempt to avoid surgery, Mr. Ng obtained a second opinion
and tried an epidural cortisone block.  When the cortisone block did not
alleviate the symptoms he underwent the partial discectomy (laminectomy)
surgery on March 13, 2009.

Medical Evidence

[18]        
Dr. Aitken provided medical legal reports dated September 28, 2010 and
September 1, 2011.  In the first report, Dr. Aitken dealt only briefly with the
issue of causation.  He concluded:

In the absence of any prior
history of low back problems, and in the subsequent course of the events that
occurred following the collision, in my opinion it is most probable that the
subject collision is the source of his ongoing back problem.

[19]        
Dr. Aitken’s second report provides a more detailed opinion on
causation.  He responds to Dr. Dommisse’s suggestion that Mr. Ng did not suffer
a torsional or twist injury in the accident.  He states:

… from my understanding of the mechanics of this collision,
there would be a deceleration (flexion) as well as torsional (rotation) component
at the time of the first impact, followed by a further flexion/ compression of
the lumbar spine at the time of the second impact.

…

In my opinion I believe that the
subject collision would cause an excessive overloading compression/rotational
strain to the lower lumbar spine. -That would not necessarily become
symptomatic right away, in terms of disc herniation, but certainly could have
accelerated the rate of which the load-bearing capacity of Mr. Ng’s spine would
have developed further degenerative changes.

[20]        
Dr. Aitken also disagrees with Dr. Dommisse’s opinion that the onset of
sciatic symptoms would usually occur within a week of an accident.  He notes
that Dr. Dommisse cites no source for that opinion.  Dr. Aitken refers to an
authoritative source in support of the proposition that sciatic symptoms
related to an accident may appear up to three months after the accident.  Dr.
Aitken appears to agree with Dr. Wong’s view that the symptoms noted by Dr.
Tsang in October 2007 were sciatica even though Dr. Tsang could not find
clinical signs at the time.

[21]        
Dr. Aitken concludes his opinion on causation with the following
statement:

Generally speaking disc failure
is regarded as being multi-factorial in origin, but in my opinion the double
impacts experienced at the time of the subject crash were probably a
significant aggravating factor and, but for these events, it is uncertain
whether or not Mr. Ng would ever have needed disc surgery.

[22]        
As noted above, Dr. Wong’s first report three months after the accident
diagnosed a muscle-ligament strain.  However, in his report of March 21, 2009,
he concluded that the accident caused the Herniations which were finally
diagnosed when the MRI was performed.  He states as follows at pages 4 and 5:

There had been complaints of
right ankle pain since the beginning of the accident, intermittent after, then
very little as he improved. But he started complaining of [t]his again after
[the November 18, 2008] exacerbation. It was finally clear in my mind that
there was a radiation of the back pain to his right foot on his December 16,
2008 visit into my office. The pain on this exacerbation was much more
significant than he ever had since the beginning of the MVA. … Looking back,
there had been complaints of right ankle pains early on after the MVA and even
Dr. Tsang, on his assessment on October 23, 2007, felt that he had symptoms to
suggest sciatica but no clinical signs were present. Other physicians had the
same observations based on my review. When he was assessed in Burnaby General
Hospital emergency on January 6, 2009, the exam by the doctor on the consult
report noted that the SLR test was normal, as did the exam done by Sonia Makky
on January 21, 2009, at Richmond General Hospital. Both were aware of the MRI
findings…. My feeling is that he very likely suffered a disc herniation as a
result of the MVA on July 22, 2007. It was mild and although there were some
symptoms, there were no clinical signs. It was not until the exacerbation in
November of 2008 that a MRI was done that revealed it. And by then it had
worsened over the year and a half of activity.

[23]        
Dr. Dommisse was of the opinion that Mr. Ng’s Herniations were
precipitated by his activities at work.  After indicating that Mr. Ng sustained
a Grade II strain of his cervical and thoracolumbar spine and that his prognosis
was good, he concludes as follows in his report of March 25, 2011:

In my opinion, it is uncertain as
to whether the right L4/5 and L5/S1 disc herniations were caused directly by
the Accident seeing as disc herniations occur more commonly with tortional or
twist injuries. Such a mechanism of injury was likely not present at the time
of the Accident. Additionally, Mr. Ng  did not present with any symptoms of
sciatic pain which would be consistent with a herniated disc at the time of the
Accident. It is more likely, therefore, in my opinion, that Mr. Ng’s
work-related activity which likely involves twisting movement when doing Shaw
cable installations “from pole to home” requiring the use of a ladder as well.

[24]        
Later in the report, Dr. Dommisse responds to the opinions of Dr. Wong
and Dr. Aitken with the following comments:

I disagree with Dr. Wong that Mr. Ng sustained a disc
herniation as a result of the Accident seeing as the onset of sciatic symptoms
would usually occur within a week of the Accident. Such a history was not
present in Mr. Ng following the Accident. As outlined above, in my opinion, Mr.
Ng’s work-related activity probably precipitated the disc herniation in
November, 2008.

…

I disagree with [the] opinion of
Dr. Aitken that the Accident is the sole source of his ongoing back problems.
As outlined above, it is likely that Mr. Ng’s work related activity has
contributed to his back symptoms and subsequent surgery which was carried out
remotely from the Accident on March 13, 2009.

Conclusions on Causation

[25]        
I have no hesitation in concluding that Mr. Ng has proved there is a
substantial connection between the motor vehicle accident and the Herniations. 
I prefer the opinion evidence of Dr. Wong and Dr. Aitken to that of Dr.
Dommisse.  My reasons for that conclusion and for accepting the evidence of the
plaintiff’s experts include the following:

Mr. Ng’s early symptoms

[26]        
The defence argues that I should not accept Dr. Wong’s opinion because
it is based on a false assumption.  Dr. Wong states that Mr. Ng made
“complaints of right ankle pains early on after the MVA”.  However, Dr. Wong
agreed in cross-examination that his records contain no notes of such
complaints.  While this is correct, Mr. Ng gave evidence at trial that he did
experience ankle and leg pains in the weeks immediately following the
accident.  I accept that evidence.  There is no doubt that Mr. Ng was stoic and
did not complain extensively.  I conclude that the pain that he felt in his
lower right leg was less significant to him than the acute muscle-ligament
strain in his back and neck.  He either did not stress that pain in discussions
with Dr. Wong or indicated it was relatively minor.  However, I find that he
did experience radiating pain in his right leg in the days and months
immediately after the accident and this pain was caused by sciatica.

[27]        
I also conclude that Dr. Tsang found sciatica symptoms in October 2007
even though he could not find clinical signs of disc herniation at the time.  The
fact that he did not detect clinical signs through SLR testing is not
surprising given Mr. Ng’s history.  Even when he was experiencing debilitating
sciatic pain in early January 2009, the SLR test was negative.  The test is not
infallible, and it appears that it was not a good diagnostic test for Mr. Ng.

No acute pain within one week

[28]        
I reject Dr. Dommisse’s assertion that if the accident caused the Herniations
he would have expected Mr. Ng to have significant sciatica within one week of
the accident.  I accept Dr. Aitken’s opinion that it is possible for an
accident to cause a disc herniation but to have the onset of initial pain
delayed for up to three months.  Here, I find that Mr. Ng suffered a mild
herniation of the disc at the time of the accident which caused minor pain
symptoms over the first three months.  It settled down for a few months until
it worsened over the course of 2008.  Dr. Dommisse agreed that it is not
unusual for sciatic pain to settle down without surgery or treatment.  Of
course, it is also possible for the pressure on the nerve to increase again at
a later date which would cause the pain symptoms to return.  This is what
occurred in this case.

In any event, the accident was a cause of the Herniations

[29]        
All of the physicians accepted that the accident was likely one of the
causes of the Herniations.  Dr. Aitken stated this directly.  He said that Mr.
Ng’s back “would not necessarily become symptomatic right away, in terms of
disc herniation, but certainly could have accelerated the rate of which the
load-bearing capacity of Mr. Ng’s spine would have developed further
degenerative changes.”  Dr. Dommisse seems to accept this.  The language in his
report was carefully chosen.  He disagreed that the accident was the sole
cause of the ongoing back problems but felt that Mr. Ng’s work activity “contributed
to his back symptoms and subsequent surgery”.  I infer from the language used
in his report that Dr. Dommisse agrees that the accident is also a cause of Mr.
Ng’s ongoing back problems and that the accident likely contributed to his back
symptoms and subsequent surgery.

No work-related injury

[30]        
The defence was critical of Dr. Aitken’s alleged failure to fully
inquire into the work activities undertaken by Mr. Ng after he went back to
work.  However, I am of the view that it is Dr. Dommisse who can be criticized
for failing to back up his opinion by pointing to evidence that would connect
the Herniations to a particular injury or incident at work.  All of the doctors
were aware in general terms of the nature of Mr. Ng’s work.  They all agreed
that it is possible for such work to cause a tortional injury to the spine. 
However, there was no evidence that Mr. Ng suffered such an injury or insult at
work between June 2008 and November 2008.  Indeed, he deliberately avoided the
more onerous work tasks including those jobs requiring the use of the large
ladder.  He does not recall using the ladder in that timeframe.  During much of
that period he was off work, on light duties or avoiding heavy tasks.  The
evidence established that there was only one significant injury or insult to
Mr. Ng’s spine:  the injury that was suffered in the accident.

The accident did produce a rotational strain on Mr. Ng’s spine

[31]        
Neither party presented accident reconstruction evidence regarding the
likely forces operating on Mr. Ng’s spine.  Dr. Dommisse believed the accident
was head-on such that there was no rotational strain or force on Mr. Ng’s
back.  His understanding of the accident was incorrect.  The defendants’
vehicle struck the left front corner of Mr. Ng’s car which ended up on the
sidewalk.  Clearly, the Ng vehicle was turned and pushed to the east side of
the road which means it was subject to twisting or rotational forces.  In other
words, the dynamics of the accident are consistent with Dr. Aitken’s assumption
and inconsistent with Dr. Dommisse’s assumption.  Dr. Dommisse’s assumption
about the dynamics was crucial to his conclusion.  Accordingly, his opinion
that it is unlikely that the accident caused the Herniations cannot stand.

[32]        
Before leaving causation, I should comment on two other arguments raised
by the defendants.  First, the defendants argued that there was no temporal
connection between the accident and the diagnosis of the Herniations.  They
referred to Erhcke J.’s comments on the reliability of temporal connections at
para. 75 in White v. Stonestreet, 2006 BCSC 801:

In searching for causes, a
temporal connection is sometimes the only thing to go on.  But if a mere
temporal connection is going to form the basis for a conclusion about the cause
of an event, then it is important to examine that temporal connection
carefully.  Just how close are the events in time?  Were there other events
happening around the same time, or even closer in time, that would provide an
alternate, and more accurate, explanation of the true cause?

[33]        
Here, of course, the defendants are relying upon the absence of an immediate
temporal connection to assert that the Herniations were not caused by the
accident.  In other words, it is the defendants who are suggesting a conclusion
based on a superficial temporal analysis.  As I have explained, and as Dr. Wong
notes in his report, when the entire chronology is examined carefully, the only
reasonable conclusion is that the accident was a significant, and perhaps the
sole, cause of the Herniations.

[34]        
Second, the defendants argue that I should draw an adverse inference
against Mr. Ng for failing to call Dr. Tsang, Dr. Lee (who performed the
surgery), Dr. Milton Wong (a neurologist who saw Mr. Ng in January 2009 after
the onset of the debilitating sciatic pain) and Dr. Tai (a neurologist who saw
Mr. Ng for a second opinion regarding possible surgery in February 2009).  They
rely on Barker v. McQuahe (1964), 49 W.W.R. 685 at 689 (B.C.C.A.), for
the proposition stated by Davey J.A. at para. 13:

In my opinion, a plaintiff who
seeks damages for personal injuries ought to call all doctors who attended him
in respect of any important aspect of the matters that are in dispute or
explain why he does not do so.

[35]        
In the circumstances of this case, I see no reason to draw an adverse
inference.  As noted in Barker, witnesses should be called in relation
to “important aspects” of the matters in dispute.  There is no requirement to
call every physician who treats a claimant.  To do so would often be a waste of
court time, not to mention the time of the doctors involved.  Here, Mr. Ng
produced all of his medical records including the consult reports of all of the
doctors in question.  The information relating to their diagnoses and
recommendations are before the court.  Drs. Tai and Milton Wong were involved
with Mr. Ng after the Herniations were diagnosed.  They provided opinions as to
whether surgery was required.  The defendants take no issue with their
recommendations in favour of surgery.  In these circumstances, there was no
reason for the plaintiff to call their evidence, nor the evidence of Dr. Lee
who performed the surgery.

[36]        
Dr. Tsang saw Mr. Ng in October 2007 and his consult report was before
the court.  Dr. Tsang noted that Mr. Ng had symptoms suggestive of sciatica but
he did not detect clinical signs of nerve impingement.  While the symptoms observed
and clinical tests performed and noted by Dr. Tsang were important to the
conclusion I have reached, there is nothing controversial about them.  The
consult report was produced.  Neither the fact of the symptoms nor the lack of
clinical signs was contested by either party.  There was no need for Mr. Ng to
call Dr. Tsang.  Indeed, given the object of the new rules – the just,
speedy and inexpensive determination of every proceeding on its merits – it
would have been inappropriate for Mr. Ng to take court time with an unnecessary
witness.  Of course, if the defendants believed that Dr. Tsang had important
evidence that needed to be before the court on this issue, they could have
called Dr. Tsang.

[37]        
In summary, I conclude that Mr. Ng has proved that the accident was a
cause, beyond the de minimus range, of the Herniations.  There is a
substantial connection between the accident and the symptoms in two ways. 
First, the accident caused the initial disc herniation that was symptomatic in
a minor way for a period of three or four months.  Second, the accident
weakened Mr. Ng’s spine and accelerated the rate of changes to the discs at the
L4-5 and L5-S1 level.  Ultimately, these led to the Herniations revealed by the
MRI.

Non-Pecuniary Damages

[38]        
Prior to the surgery, Mr. Ng went through a difficult period of pain,
convalescence, attempts to work and relapses.  His activities were
significantly curtailed in the 18 months before the diagnosis.  After the
diagnosis, Mr. Ng attempted, briefly, to treat his back conservatively without
surgery.  He underwent a painful cortisone block that did not provide any
relief.  He was unable to work during that entire period.

[39]        
After the surgery, Mr. Ng was finally able to return to work in
September 2009.  In June, before his return to work, he was married to Ms.
Mah.  He started back to work on light duties.  The progression to full duties
went much faster and more smoothly than it had in 2008.  He experienced less
pain and was able to work through the pain more easily.  At the present time,
he is able to carry out all of the duties of his work as a TFR but says that he
completes about 10% fewer jobs in a day than he did before.  He also says that
he does not take on overtime or extra work as he would have done in the past.

[40]        
He did not describe his current limitations in terms of pain.  Rather,
he says that he is reluctant to push himself because he does not want to
trigger a relapse.  He experienced a recurrence of significant pain in August
2011, as a result of which he took two weeks off of work.  He says that he
tries to limit the amount of lifting he does, including the lifting of his
young daughter, in order to avoid initiating another bout of limiting pain.  He
is very cautious about his activities.

[41]        
His lifestyle has changed significantly as a result of his injuries. 
Previously he did not have to be cautious.  Now, he limits his activities in
all aspects of his life; his work, his leisure and his activities with his
young family.  He is, however, able to carry out most of the activities he was
formerly able to do.  The limitation he has suffered is that he cannot do as
much as he was able to do in the past.  He does not take on the yard work he
used to do alone but looks to friends and family for assistance.  He does not
play the occasional game of basketball that he used to play.  He does maintain
a light weightlifting and exercise routine which he finds helpful.  He actively
participates in activities with his young daughter.

[42]        
My assessment of his limitations is consistent with the medical
prognosis.  Dr. Dommisse felt that the prognosis for Mr. Ng was “fairly good”. 
Dr. Aitken gave the following prognosis in relation to Mr. Ng’s work:

Given the nature of the work that he does, and the need to
pack around a heavy electrician’s ladder, I would have some concerns that he
may not be able to cope with this for as long as he would like, and that he may
re-injure himself periodically.

In that regard, there is probably some indication for
exploring other vocations that would be open to him in the event that he cannot
continue.

Ideally he would be best suited
to work of light to occasional medium strength intensity only with the ability
to change position frequently and not involving crouching, lifting, or
prolonged bending.

[43]        
In summary, Mr. Ng has been left with a limitation in the amount of
activities he can do.  He has also suffered some restriction in the nature of
the activities he can do because he is focused on staying healthy.  He is
determined to continue his work as a TFR.  He is not disabled by pain and there
is no suggestion that he suffers from chronic pain.  Rather, he has episodic
pain when he overexerts himself.

[44]        
Mr. Ng relies on Bouchard v. Brown Bros. Motor Lease Canada Ltd.,
2011 BCSC 762; Fox v. Danis, 2005 BCSC 102; Love v. Pai, 2003
BCSC 900; Kosugi v. Krueger, 2007 BCSC 278; and Al-Hendawi v. Sidhu,
2006 BCSC 522, in support of his argument that the appropriate award for
non-pecuniary damages is $130,000.

[45]        
The defendants rely upon a number of decisions to support their argument
that the appropriate range of damages is $20,000 to $25,000.  None of these decisions
involve plaintiffs who have suffered disc herniations.  Given my conclusion on
causation, these decisions are not relevant to my assessment.

[46]        
I have found the decisions referred to by the plaintiff to be helpful to
my decision.  Of course, each assessment depends on the unique facts of the
case.  Here, Mr. Ng’s injury was significant; however, he has had a very
positive result from the surgery.  He continues to be able to do all of the
activities of his job.  His income has increased to a level greater than it was
before the accident.  He must be careful to avoid excessive stress on his back
and must carefully balance his work and home life.  However, when I compare his
situation to that of the plaintiffs in the cases he relies upon, he is in a
better position because he does not experience ongoing chronic pain and is able
to continue to carry out most of the activities he could before the accident. 
However, I must also take into account the possibility that he will not be able
to continue to perform at his current level as a result of the injuries
suffered in the accident.  There is a possibility that his pain and restriction
of activities will increase in the future.

[47]        
When I take all of these factors into account, I conclude that the
appropriate award for non-pecuniary damages is $95,000.

Past Income Loss

[48]        
Mr. Ng clearly enjoys his work as a TFR at Shaw.  He has no desire to
change his employment or retrain for a job that is less physically demanding. 
It is understandable that he does not want to change occupations.  The work at
Shaw is highly remunerative and much sought after.  A number of witnesses gave
evidence about the nature of the work, and the earning potential for a TFR. 
Unlike most jobs, there is a wide range of incomes for TFRs.  The amount earned
depends primarily on the amount an employee wishes to work.  The contentious
issue for both past and future income loss in this case is:  how much would Mr.
Ng have worked if the accident had not occurred?

[49]        
A number of witnesses from Shaw gave evidence about the earnings of a
TFR.  Mr. Kobitz, Mr. Ng’s former supervisor, was responsible for about 25
TFRs.  He was not privy to pay information but had a general idea of the pay
structure for the employees he supervised.  He said that the top earners made
$225,000 per year or more.  He believes that the average earner made $140,000
to $160,000.  It was his understanding that the lower level performers earned
about $100,000 to $125,000.  He was of the view that Mr. Ng was one of his
“go-to-guys” but did not know what his earnings were.

[50]        
The reason for the wide discrepancy in earnings is that there is an
opportunity to do additional work once the work assigned at the start of the
day has been completed.  A TFR is paid on the basis of jobs completed.  As a
result, the more work completed, the higher the pay.  It would appear that in
the last two or three years there has been an unlimited opportunity to do extra
work.  The income of the workers has increased dramatically even though the
actual pay per job has only increased at about 2% per year.

[51]        
Three TFRs gave evidence.  A.H. is one of the high performers.  He
usually works seven days per week.  On average he worked 85 hours per week in
2009.  His income over the last four years is: 2010 – $227,000; 2009 –
$231,000; 2008 – $167,000; and 2007 – $162,000.

[52]        
R.S. has two children and his wife does not work outside of their home. 
He limits his work to eight hours per day.  His earnings for the last three
years are:  2010 – $165,000; 2009 – $150,000; and 2008 – $124,000.

[53]        
K.T. is concerned about the wear and tear on his small frame.  He tries
to work at a steady pace and does not want to overexert himself.  His earnings
for the last two years are: 2010 – $129,000; and 2009 – $111,000.

[54]        
Mr. Ng’s income in the years since he became a TFR is somewhat difficult
to understand because of the way the income is reported and because he has also
received other forms of income aside from his per job TFR income.  Some
confusion arises because his TFR income is reported as commission income.  He
also receives an additional amount of income which includes benefits and
holiday pay.  Over these years, Mr. Ng has also earned hourly pay, received Employment
Insurance benefits, cashed RSPs and taken parental leave.  He took parental
leave for four months shortly after the birth of his daughter.  He intends to
take parental leave after the birth of his son, which is imminent.  The
following table shows his gross income, the portion of that income which was
received as commission income, and his net income since 2005:

[55]        
As noted, Mr. Ng withdrew $41,836 from his RSP in 2008.  He also
received $5,922 in Employment Insurance that year.  The income in 2010 was
significantly less than he could have earned had he not taken the parental
leave.  The gross income figure for 2011 is based on his earnings to the date
of trial.  I accept counsel’s estimate that his net income to the date of trial
was about $69,700 and have used that figure in the calculations below.

[56]        
Mr. Ng argues that if he had not been injured he would have earned $94,560
in 2007 and 2008.  This is based on a monthly income of $7,880 which is his
average from the year and a half prior to the injury.  I agree he would have
earned income at that rate in those years.  I also accept counsel’s calculation
of the net income loss for those two years.  In 2007, he had no net income
loss, but in 2008 he suffered a net loss of $21,300.

[57]        
Mr. Ng argues that his full-year gross income in 2009 – 2011 would have
been $160,000 but for the accident.  This is based on the high end of the range
given by Mr. Kobitz for the average earner.  Mr. Ng’s earnings prior to the
accident were well below the estimated averages.  He argues that his earnings
in that time period were lower than average because he was financially secure
and was focusing his energies on renovations to his home and activities outside
of work.  He says that with his marriage and the start of his family it is
likely he would have focused more on earning a higher income to provide support
for his young family.

[58]        
I do not accept Mr. Ng’s argument on this issue.  From the time he
started work as a TFR, Mr. Ng was not enticed to give up his life outside of
work by the prospect of significantly higher earnings.  He maintained his
recreational activities.  He spent time with his friends and liked to work on
his home.  After the accident, he developed a new focus to his life; he
reconnected with Ms. Mah, got married and started a family.  He is clearly
devoted to his wife and young daughter and very excited about the prospect of a
second child.  He chose to take parental leave after the birth of his first
child and will do so again.  In the future, I expect him to be a very active
father.  I conclude that the injury has not changed his approach to life,
family and work.  Without the accident, he would have placed more importance on
the time spent with his family and the pursuit of non-work activities than he
would have placed on additional income.  I find that he would not have earned
income at the highest level of TFRs after his marriage and the birth of his
children, just as he did not do so before those events.

[59]        
In light of this conclusion, I cannot accept that Mr. Ng’s income would
have increased as dramatically as he suggests in 2009.  The evidence of the
other Shaw employees indicates there was a large jump in TFR incomes in 2009. 
I conclude that Mr. Ng’s income would have increased by $30,000 in 2009.  I
should also indicate that I have hesitation generally in accepting the
estimates for income put forward by Mr. Kobitz as he clearly stated that he did
not have direct information about incomes or averages.  Accordingly, for past
income loss purposes, I conclude that Mr. Ng would have earned $125,000 in 2009
and $132,000 (on a full time, full year basis) in 2010 and 2011. I find that these
amounts would be at the lower end of the mid range for TFR employees in that
timeframe.

[60]        
In order to determine the net income loss, I will use the methodology
proposed by plaintiff’s counsel and the actual net income figures as shown
above.  The calculations are not precise, given the use of approximate figures
for tax percentages, and so I will express the loss in rounded figures.  I
conclude that Mr. Ng’s net income for 2009, but for the accident, would have
been $83,250 which produces a net income loss of $49,000.  In 2010, assuming he
would have taken the four months’ parental leave, results in an estimated net
income of $66,250 and a net income loss of $12,400.  In the first ten and a
half months of 2011, he would have earned gross income of $115,500 which
results in a net income of $77,500.  This produces a net income loss of $7,800.

[61]        
In summary, I conclude that Mr. Ng has suffered a past income loss of
$90,500 which is broken down as follows:

[62]        
It is unclear to me if the income loss figures presented by counsel have
taken into account the receipt by Mr. Ng of $4,200 in Part VII benefits.  There
is no question that the defendants are entitled to the benefit of that payment
and if it has not been taken into account it will need to be deducted.

Future Income Loss

[63]        
Mr. Ng’s claim for loss of future earning capacity, like all such
claims, raises two key questions:  1) has Mr. Ng’s earning capacity been
impaired by his injuries; and 2) what compensation should be awarded for
the resulting financial harm that will accrue over time?  The assessment of the
loss must be based on the evidence, and not an application of a purely
mathematical calculation.  The appropriate means of assessment will vary from
case to case: Brown v. Golaiy (1985), (1997), 26 B.C.L.R. (3d) 353
(S.C.); Pallos v. Insurance Corp. of British Columbia (1995), 100
B.C.L.R. (2d) 260 (C.A.); and Pett v. Pett, 2009 BCCA 232.

[64]        
My conclusions regarding Mr. Ng’s loss of earning capacity in relation
to his past loss of income also apply to his claim for future income loss.  The
factors that prevented him from working at full capacity after his return to
work from the back surgery will continue to restrict his capacity in the
future.  He will have to continue to restrict his activities in order to
minimize pain and avoid aggravating the injury to his lower back.  He will not
be able to take full advantage of the opportunity to maximize his income as he
otherwise would have been able to do in the unique position he holds as a TFR
for Shaw.  He will continue to perform at a capacity which is lower than he would
have performed at had he not been injured.  He will not be able to take on all
of the jobs, including overtime work he might otherwise have done.  In other
words, there is no doubt that Mr. Ng’s future earning capacity has been
impaired.

[65]        
In addition to Mr. Ng’s loss of capacity to take on as many jobs as he
would have before, he runs additional future risks.  According to Dr. Dommisse,
seven to ten percent of discectomies fail.  In addition, there is a risk of
further trauma to the spine.  As noted above, Dr. Aitken expressed a concern
that Mr. Ng may not be able to continue working indefinitely as a TFR.

[66]        
There are two possible approaches to the assessment of loss of future
earning capacity:  the “earnings approach” from Pallos; and the “capital
asset approach” in Brown.  Both approaches are correct and will be more
or less appropriate depending on whether the loss in question can be quantified
in a measureable way: Perren v. Lalari, 2010 BCCA 140.  This case has
aspects which require both approaches.  The assessment of the lost stream of
income resulting from Mr. Ng’s reduced ability to work is amenable to the
earnings approach, while the risk that he may suffer future trauma or a future
failure at the L4-5 level can be assessed by the capital asset approach.  In
any event, the assessment of his future income loss must be approached as a
matter of judgment, not calculation: Rosvold v. Dunlop, 2001 BCCA 1 at
para. 18.

[67]        
In relation to his past income losses, I concluded that his loss of
capacity would cause him to earn about 10% less than he would have but for the
accident.  It is on that basis that I concluded his income for 2010 and 2011
would have been $132,000 absent the accident.  I reject Mr. Ng’s argument that
he would have worked enough to earn $160,000 on an ongoing basis.  As I
indicated above, he did not establish a pattern of working at that level prior
to the accident.  I conclude that even if Mr. Ng had not been injured, he would
have placed a high priority on his time with his young family and his time away
from work.  Accordingly, I find that, absent the accident, he would have
continued to work at a level where he would earn approximately $132,000 per
year.  In other words, I conclude he will continue to experience a modest
income loss of about 10%.

[68]        
Mr. Ng attempted to present evidence from an economist showing the
effect of an income loss of $1,000 per annum over the course of his working
life.  I did not permit the evidence to be admitted given its late delivery to
the defendants.  The tables attached to the report clearly included opinion
evidence other than a simple application of the 2.5% discount rate.  However, I
permitted Mr. Spieker to refer to the table in argument.  The table gives a
multiplier of $19,942 for every $1,000 of income loss to age 65.  The table
included survival probabilities but did not include other discount factors.

[69]        
I have concluded that Mr. Ng’s annual loss of income resulting from his
reduced capacity to work is approximately $12,000.  However, it would be
inappropriate to simply apply the multiplier to this figure to calculate the
present value of the loss.  Other discount factors must be taken into account
including the risk of loss of employment, the possibilities that the
remuneration for the TFR position will be reduced, or the TFR position will be
eliminated or changed in the future (this seems quite possible given the rapid
changes in technology), and the possibility Mr. Ng would retire before the age
of 65.

[70]        
Of course, I must also take into account the other risks outlined above:
the risk that Mr. Ng will suffer a further injury to his lower spine as a
result of its weakened condition; and the risk that the discectomy will fail.

[71]        
When I take all of these factors into account, I conclude that the
appropriate compensation for Mr. Ng’s loss of capacity to earn income is
$260,000.

Cost of Future Care

[72]        
Mr. Ng advances a claim for cost of future care based on the possibility
that he will require physiotherapy or massage therapy at some time in the
future.  In addition, he claims the cost of lawn maintenance at $1,600 per
year.  He also asks for an amount to cover a “substantial rehabilitation
program” in the event he has a future need.

[73]        
The difficulty with all of these claims is that they are speculative and
are presented without any supportive evidence from a doctor or occupational
therapist.  There is no evidence at all as to the cost of a “substantial
rehabilitation program”.  In addition, and in line with Mr. Ng’s stoic nature,
he has taken little medication and has used therapists infrequently.

[74]        
While Mr. Ng hired a friend to do the yard work in 2008 – 2010, he
presented no receipts for yard work for 2011.  It is also evident that he used
the lawn service less in 2010 than he did in the previous two years.  I infer
that he has managed to do more of the yard work himself after the operation,
perhaps with the help of friends and relatives.  There is no medical opinion
suggesting he cannot or should not do that work.  I find that he has failed to
meet the burden of proof with regard to this claim.  I will, however, award as
special damages the cost of the yard work in 2008 and 2009.

[75]        
Mr. Ng has, however, suffered one relapse, and it is likely he will
experience further periods of pain where he will benefit from physiotherapy or
massage therapy.  Accordingly, I award the sum of $2,500 to cover the cost of
future therapy sessions.

Special Damages

[76]        
Special damages are allowed in the amount of $2,688.30.  As noted above,
this includes the yard work for the years 2008 and 2009.

Summary

[77]        
In summary, I award damages to Mr. Ng in the following amounts:

[78]        
Subject to any submissions the parties wish to make regarding offers of
settlement, Mr. Ng is entitled to costs at Scale B.

“Butler J.”