IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120229

Docket: M111474

Registry:
Vancouver

Between:

Gary Eng

Plaintiff

And

Mikhail Titov

Defendant

Before:
The Honourable Madam Justice Allan

Reasons for Judgment

[1]            
On April  2, 2009, the car driven by the plaintiff Gary Eng was
rear-ended by the defendant’s vehicle.  Mr. Eng had exited Highway 1 and was
stopped at a yield sign waiting for the traffic to clear so that he could
proceed on Gaglardi Way.  He had turned to look for a break in traffic when he
was unexpectedly struck from behind.  His car was moved some feet forward. 
There was approximately $12,000 in damage done to his 2002 Honda Accord
vehicle.  Mr. Eng was dizzy and in shock at the scene. Two or three days later,
he began to experience physical symptoms − headaches, a stiff neck and
shoulders which restricted his range of motion, and periodic bouts of intense
low back ache.  He had chest pain, probably from the seatbelt, which resolved
in a short time. He had pain in his right knee for about six months which made
it harder to walk and was painful to touch.   He had difficulty sleeping for
the first year because of the headaches and experienced a mood disorder.

[2]            
In the first year after the accident, Mr. Eng had headaches several
times a week that he rated as 7 out of 10 on a pain scale.

[3]            
Mr. Eng saw his family doctor, Dr. Hou, two days after the accident. On
Dr. Hou’s advice, he began massage therapy treatments on April 17 and
physiotherapy treatments on April 24.  His neck injury caused him constant pain
for the first year although he got temporary relief from physiotherapy and
massage therapy. He worked with a trainer from June 5 to late August 2009.
During that time, his physiotherapy treatments ended.  By late August, his
symptoms had significantly improved. However, they recurred when he returned to
his occupation of driving a bus.  He later returned for more massage therapy in
the fall of 2010, hoping to break down some of the muscle knots causing pain
and tension in his upper back and neck.

[4]            
Mr. Eng missed 41 full-time days of work on the advice of his doctor. He
focused on receiving physiotherapy and massage therapy and exercising on a one
to one basis with a trainer.  On the advice of Dr. Hou, he underwent a gradual
return to work programme and missed 34 part-time days of work up to August 21,
2009. Initially he was given modified duties, consisting of standing and giving
information to customers at a Skytrain station for four hours a day.  He found
that physically difficult.  After four to six weeks, he began driving a bus for
three or four hours a day and then he returned to full time work driving.

[5]            
When he returned to work, Mr. Eng received a verbal warning from his
supervisor that his absenteeism in 2009 was unacceptable and if he missed more
work, he would be disciplined.  All of his absences had related to the accident
and during 2008, he had only taken two days off.  His employer indicated that
there was no excuse, including injuries, for absenteeism. Mr. Eng was very
upset and stressed by the warning and, as a result, he took no further time off
in 2009 or early 2010, regardless of his health.

[6]            
Mr. Eng is 43 years old. He has a high school education and has worked
as a bus driver for Coast Mountain Bus Lines since February 2007.  Before that,
he worked as a bank teller in a Casino, rising to manager and then site
supervisor.

[7]            
Mr. Eng had suffered injuries to his neck and back in a previous motor
vehicle accident about five years ago.  He took a few weeks or a month off work
and recovered fully in 1½ to 2 years.

[8]            
Mr. Eng is devoted to his family. He is divorced and the father of a 13-year-old
son, who spends four or five days a week with him and the balance with Mr. Eng’s
ex-wife. Mr. Eng works primarily night shifts and when his son is with him
during those shifts, his parents care for their grandson. His father is 79 and
recovering from prostate cancer. His mother is 67. In the past, both Mr. Eng
and his older brother helped their parents by cleaning the gutters and painting
when necessary and taking them to medical appointments and shopping. 
Presumably, the older their parents get, the more help they will require.  Mr.
Eng has not attempted to clean the gutters since the accident and finds
carrying large cans of paint and heavy groceries difficult.

[9]            
Ms. Ha met Mr. Eng 11 years ago when they both worked at the Casino and
they have been dating since 2006.  She sees him five or six days a week.  She
described him as very easy going and talkative before the accident. Since then,
she said he always complains of headache and neck pain and asks her to massage
his neck.  She still gives him neck massages about twice a week. She says he is
no longer easy going and little things get to him.  There may be some
improvement, but even today, he is still moody and gets upset easily. He is
always stretching and massaging his neck. They used to bowl and play badminton
but have not done so since the accident. He no longer swims laps at the pool
but just stays in the hot tub.

[10]        
Mr. Woo, a certified general accountant, who manages a large courier
company, has known Mr. Eng for 30 years and is like a brother to him. Their
families interact and they see each other once or twice a month at family
events and celebrations.  He described Mr. Eng as “one of the nicest guys you
ever met”.  He said Mr. Eng was charismatic, outgoing, and never had a harsh
word for anyone before the accident. After that event, Mr. Woo was shocked by
the fact that minor things irritated Mr. Eng and “he took a hard edge”.  After
the accident, Mr. Eng complained of back pains and headaches every time they
met.  He does not complain as much about those problems now but his mood has
not completely improved. Mr. Woo would not employ Mr. Eng as a courier because
he could not lift heavy packages.

[11]        
Both Ms. Ha and Mr. Woo presented as honest witnesses who have extensive
knowledge of the plaintiff both before and since the accident.   They describe
dramatic changes and do not agree with Mr. Eng’s evidence that he feels that
his mood has improved significantly. They testified that there was no other
incident, apart from the accident, that would explain the changes in Mr.
Eng.

[12]        
Mr. Eng’s son has engaged in swimming and baseball for the past eight
years. Since the accident, Mr. Eng and Ms. Ha take him to the community centre
pool to swim while they visit the sauna and the hot tub.  Mr. Eng still takes
his son to baseball games and practices but does not participate in the same
way that he did before the accident. Prior to the accident, he would help rake
the field and assist the coaches in batting and pitching practices.  Now he
finds any physical activity there difficult and stays to cheer on his son’s
team.

[13]        
Mr. Eng presented as an impeccably truthful witness at trial and was
unshaken in cross-examination.  I would describe him as a stoic man who has
carried on with his work responsibilities and family obligations to his son and
parents despite continuing pain and discomfort since the accident.

Dr. Koo:

[14]        
Dr. Koo is a physiatrist who was hired by the plaintiff’s lawyer to
complete an Independent Medical Examination of Mr. Eng.   He described his
examination of Mr. Eng on June 27, 2011, two years and four months after the
accident:

Head and neck examination:

Active cervical range of
motion was grossly restricted in forward flexion with four finger breadths
separating chin to chest, producing posterior neck pain, worse on the right.
Extension was mildly reduced and also produced right posterior neck pain.
Right-sided flexion was significantly restricted to 22°, producing right
lateral neck pain and stretching and stiffness in the left lateral neck. Left
lateral flexion was better at 36° and produced right lateral neck stretching
sensation, but no pain. Right rotation was permissible to 53° producing right
lateral neck tightness. Left rotation was diminished at 45° and produced a
pulling sensation in the right lateral neck.

Isometric resisted neck
flexion produced left anterior neck pain over the origin of the
sternocleidomastoid. Passive range of motion of the neck in a supine position
with the neck muscles relaxed produced 5° of additional range of motion in all
direction with tightness and discomfort reported at end ranges of flexion, side
flexion and rotation. No bony block was appreciated.

Palpatory examination revealed
the presence of tenderness in the cervical paraspinals from C5 to T1, more so
on the right side with increased resting muscle tone. There as also trigger
points and taut bands identified within the mid-bodies of both trapezius
muscles, the right rhomboid, and left infraspinatus. Examination of the
thoracic paraspinal muscles was normal and pain-free as were the midline spinal
structures throughout the back. 

[15]        
 As a result of his physical examination, his interview with Mr. Eng,
and his review of some documentation (although not the clinical notes of Dr.
Hou, Mr. Eng’s treating physician), he described Mr. Eng’s condition resulting
from the accident as follows:

In my opinion, based on the
information provided through documentation and interview, and my physical
examination findings, the motor vehicle accident in question likely resulted in
the following conditions:

1.  Chronic post-traumatic cervicogenic headaches
(tension type).

2.  Initial soft tissue injuries to the neck, chest,
and back.

3.  Chronic myofascial pain arising from:

– Cervical
paraspinals

– Trapezii

– Left
sternocleidomastoid muscle

– Right
rhomboid

– Left
infraspinatus

4.  Mechanical low back pain with intermittent spasm
affecting the lumbosacral junction.

5.  Chronic sleep disruption.

6.  Adjustment
disorder (resolved).

[16]        
 In Dr. Koo’s opinion, the sudden acceleration/deceleration forces from
the impact of the collision resulted in soft tissue injuries along Mr. Eng’s
neck, upper back, posterior shoulders, and lower back. The supporting muscles
and ligaments in those areas likely underwent over-stretching with partial
tearing and strain as a result of those forces. The initial soft tissue injuries
“likely resulted in capillary hemorrhage, inflammation and swelling to the
affected connective tissues and ligaments”.

[17]        
Dr. Koo described Mr. Eng as suffering from myofascial pain which will
likely be chronic and continue to trouble him, depending on his physical
activities. His level of discomfort fluctuates from day to day:

His reports of pain, stiffness
and headaches shortly following this motor vehicle accident, initial but
incomplete improvement despite eventual return to full-time work duties,
attendance at physiotherapy, active rehabilitation and massage therapy;
aggravation of pain with sustained postural requirements of standing, walking
or sitting; and findings of symptom reproducing myofascial trigger points
within the affected muscles suggest that his current neck, shoulder and back
pain is arising from chronic soft tissue injuries and the development of
myofascial pain.

In my experience, myofascial
pain is common in persons after motor vehicle accidents, arising after the
incomplete resolution of initial soft tissue injuries, causing chronic pain and
stiffness that lasts beyond the typical timeframe associated with healing from
acute soft tissue injuries. The term, myofascial pain, refers to a regional
soft tissue pain syndrome arising from muscles, the surrounding connective
tissues and their attachments, Myofascial pain is typically exacerbated by
postures and activities of daily life that load the affected muscles.

In
my opinion the presence of myofascial pain, now over 2 years post-accident, despite
initial adherence to physiotherapy and return to full-time work duties is
suggestive that some degree of chronicity is probable and spontaneous cure or
resolution is unlikely. In my experience, the following recommendations may
have a partial impact on temporarily reducing his pain, but he will likely
continue to remain at elevated risk for re-injury and symptom aggravation,
depending on the nature and intensity of his physical demands.

[18]        
Dr. Koo went on to describe various therapies and medications to reduce
pain symptoms to allow greater mobility and reconditioning. In particular, Mr.
Eng would be well advised to undergo reconditioning and increased activity.

[19]        
Mr. Eng’s job as a bus driver is a taxing job for his neck and
shoulders. Sitting for long hours a day, and several days in a row, tends to
exacerbate myofascial pain.

[20]        
Dr. Koo testified that typically, soft tissue injuries from a whiplash
resolve within four to six weeks, with some inflammation and symptoms remaining
for three to six months. Eighty percent of those injuries resolve by six
months. Those that do not become chronic and ongoing, recovery is less
optimistic.  Dr. Koo believes that if the person is still experiencing symptoms
after two years, full recovery is unlikely and that person must adjust to the
“new normal.” As a person ages, his or her ability to overcome injuries
decreases and those injuries may bring functional problems earlier.

[21]        
Dr. Koo agreed that Mr. Eng’s symptoms had apparently improved when he
was taking physiotherapy and massage therapy and seeing a personal trainer. 
His self-directed exercise program has lapsed and it is possible that Mr. Eng’s
condition will improve again if he increased his activity level to three to
five sessions a week.

[22]        
Dr. Koo described adjustment (or mood) disorder as very common after
motor vehicle accidents.  Mr. Eng reported symptoms of adjustment disorder but
told Dr. Koo that they had resolved so Dr. Koo did not probe into that
problem.

[23]        
After he wrote his report, Dr. Koo was given the opportunity to review
Dr. Hou’s clinical records and he was shown photographs of Mr. Eng’s car
after the collision. He said that material did not affect his opinion.

Non-pecuniary damages:

[24]        
Prior to the accident, Mr. Eng did not suffer from any active symptomatic
condition in his neck, shoulders, or back. He had very occasional headaches,
perhaps two or three a year.

[25]        
It is true that, after the previous motor vehicle accident, it took him
about two years to recover fully from his injuries. However, I do not agree
with Mr. Langille, counsel for the defendant, that it is likely Mr. Eng will
make a full recovery in this case, as he remains symptomatic almost three years
after the accident.

[26]        
Soon after the accident, Mr. Eng experienced severe pain in his
shoulders and neck, restricted range of motion, and headaches.  Mr. Eng’s
injuries have plateaued in the last year.  He still suffers from pain to his
neck and shoulders and occasional headaches about once every month. The
headaches still last several hours and he needs to sleep to clear the headache.
Overall, his sleep is 90% improved.

[27]        
The plaintiff suffered severe episodes of lower back pain that lasted two
or three days.  They have not occurred for the past year. His right knee
problems resolved after about six months. His irritable mood and short temper
have improved although his girlfriend and best friend still find him changed
for the worse in that regard.

[28]        
While the acute phase lasted only a few months, his condition is chronic
and unlikely to improve significantly.  His neck and shoulders become tighter
when he is driving as he is constantly turning to look in mirrors. His level of
pain and discomfort fluctuates but he is now used to a nagging pain which is
always present and he has good days and bad days.  As Dr. Koo testified, a
person with chronic pain has to adjust to “the new normal”.

[29]        
Mr. Eng is not disabled. He is able to do most of his day-to-day
activities although the pain and discomfort fluctuates from day to day.  Mr.
Eng is a stoic plaintiff and he should not be penalized for continuing to work
hard at a stressful job that exacerbates his neck and shoulder difficulties.

[30]        
Dr. Koo agreed, in cross-examination, that Mr. Eng’s best possibility
for an optimal outcome would be to quit his job and devote himself to therapy
and exercise.  Such a plan is clearly impractical as he needs to work and take
care of his son and his parents.  However, Mr. Eng agrees that his condition
would likely improve somewhat if he returned to swimming and exercise and is
prepared to devote some time to those activities.

[31]        
Mr. Eng also experienced significant stress as a result of the defendant’s
denial of liability.  To suggest that Mr. Eng could have been, in any way,
responsible for the accident, is unsustainable. Nevertheless, although ICBC did
not charge Mr. Eng any deductible for the repairs to his car, the
defendant denied liability in its pleadings and maintained that position
through its Trial Management Brief and up until January 19, 2012. Mr. Eng is a
professional driver with a Class 2 licence and is understandably proud of his
driving record and driving skills. As a professional driver, he is responsible
for the safety of his passengers. He was upset and frustrated that he was
blamed for an accident that he could not have avoided.   I have not, however,
taken this into account in assessing non-pecuniary damages.

[32]        
His continuing injuries prevent Mr. Eng from working overtime driving
shifts for which he can bid from time to time.  Overtime is given to drivers on
the basis of seniority.  However, Mr. Eng readily agreed that his
responsibilities to his son and parents also restrict his ability to work
overtime.

[33]        
Mr. Teed, counsel for the plaintiff, referred me to cases involving
comparable injuries where the Court awarded $45,000 to $60,000.  On the other
hand, Mr. Langille relied on cases that suggest the appropriate award
would be $25,000 to $30,000.   Each case is unique. I would describe Mr. Eng’s
injuries, which have not resolved almost three years after the accident, as
moderate soft tissue injuries. They are chronic, ongoing – albeit fluctuating –
and will probably continue indefinitely. On the basis of the evidence and
awards in roughly comparable cases, I conclude that a fair and reasonable award
is $40,000, taking into account the extent of Mr. Eng’s initial injuries and
his continuing myofascial pain in his neck and shoulders. The fluctuating pain
is exacerbated by his work activities and he is restricted in engaging in
physical activities that he enjoyed before the accident.

Wage loss:

[34]        
Coast Mountain bus drivers can bid for overtime shifts and the shifts
are allotted on a seniority basis. Mr. Eng lost 41 full-time days and 34 part-time
days as a bus driver. Prior to the accident, he had worked some overtime in
addition to his regular shifts.  Counsel agreed that his wage loss net of
income tax for that period, straight time and the overtime he would have
worked, but for the accident, totals $12,175.

Loss of future earning capacity:

[35]        
Mr. Eng recognizes the fact that, because he has only a high school
education, he is fortunate to have a well-paid job as a bus driver.  If he were
to lose that job, he would not be a candidate for any job involving heavy
lifting.

[36]        
Mr. Teed relies on Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44
(C.A.) where, at 59, Madam Justice Southin set out the classic test for
determining an award for loss of capacity:

Because it is impairment that is
being redressed, even a plaintiff who is apparently going to be able to earn as
much as he could have earned if not injured or who, with retraining, on the
balance of probabilities will be able to do so, is entitled to some
compensation for the impairment. He is entitled to it because for the rest of
his life some occupations will be closed to him and it is impossible to say
that over his working life the impairment will not harm his income earning
ability.

[37]        
The Court of Appeal recently reviewed the law on loss of capacity in Perren
v. Lalari, 2010 BCCA 140. At para. 32, Madam Justice Garson states:

 A plaintiff must always
prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, that there is a real and substantial
possibility of a future event leading to an income loss. If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown. The former approach will be more useful when the loss is
more easily measurable, as it was in Steenblok. The latter approach will
be more useful when the loss is not as easily measurable, as in Pallos
and Romanchych. A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment. That was the case in both Pallos and Parypa.
But, as Donald J.A. said in Steward, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss.

[38]        
Mr. Teed submits that it is clear that Mr. Eng is struggling with his
job as a bus driver as a result of his injuries. While he limits his overtime
work in order to spend as much time with his son as he can, his son will not
require as much attention in the future.  Mr. Eng says that another driver,
with less seniority, made an extra $10,000 last year.  Mr. Teed suggests that
an appropriate award would be $10,000 for each of the nine years prior to his
retirement at age 65.  He submits that such a loss is quantifiable on the
earnings approach discussed in Perren.

[39]        
Mr. Langille submits that the evidence does not justify an award for
loss of future earning capacity.  Mr. Eng is not disabled from his usual duties
and his symptoms are likely to improve if he spends time on a reconditioning
programme. He enjoys his job and is half-way up the seniority list.  The
plaintiff’s suggestion that he might, in the absence of his injuries, have
taken up crabbing with a relative or become a courier in Mr. Woo’s company is
not realistic.  As the Court stated in Perren at para 32: “an inability
to perform an occupation that is not a realistic alternative occupation is not
proof of a future loss.”  In that case, the plaintiff remained at her
pre-accident employment and would probably remain so. The Court of Appeal overturned
an award of $10,000 for future loss of earning capacity made by the trial judge
on the basis that, although the plaintiff had not demonstrated any substantial
possibility that she would suffer a future loss, she had suffered some
impairment.

[40]        
In Perren, the Court noted that the trial judge must first
enquire into whether there is a substantial possibility of future income loss
before one embarks on assessing the loss under either the capital asset
approach or an earnings approach.

[41]        
In this case, I do not find that Mr. Eng is limited in performing any
realistic alternative occupation. If he were laid off as a bus driver, he would
remain employable as an expert driver. However, his ability to work longer
shifts and increase his income is impaired by his chronic neck and back
symptoms, as well as his family obligations. He has already demonstrated a loss
in that regard that is likely to continue.  I would award him $25,000 under
this head of damages.

Special Damages:

[42]        
Counsel agree that Mr. Eng’s special damages are $1,758 plus $460 (which
represents a subrogated claim by Blue Cross).

Cost of future care:

[43]        
I award Mr. Eng the sum of $2,000 for medications, a gym pass, a
trainer, and future physiotherapy or massage treatments.

Interest:

[44]        
Mr. Eng is entitled to pre-judgment interest on his wage loss and
special damages.

Summary

[45]        
I award Mr. Eng the following:

·       Non-pecuniary
damages:                                 $40,000

·       Past
wage loss:                                               $12,175

·       Loss
of future earning capacity:                       $25,000

·       Special
damages:                                            $ 2,218

·       Future
costs of care:                                       $ 2,000

·       Pre-judgment
interest on past wage loss and special damages.

Costs:

[46]        
If counsel cannot agree on costs, they should contact the Registry
within the next week to set down a date to appear briefly before me.

“M.J. Allan J.”

______________________________

The
Honourable Madam Justice Allan