IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131127

Docket: S074991

Registry:
Vancouver

Between:

Myong Su (John)
Jang

Plaintiff

And

Claude Ritchie

Defendant

Before:
The Honourable Madam Justice Fenlon

Oral Reasons for Judgment

[1]            
THE COURT: The plaintiff, Myong Su Jang, also known as John
Jang, sues the defendant, Claude Ritchie, for damages. The defendant did not
appear at trial. Mr. Ritchie had counsel for much of these proceedings. Counsel
lost contact with his client and withdrew before trial. It appears Mr. Ritchie
has chosen to avoid this litigation. He did not attend examination for
discovery and, as noted, did not attend this trial to contest either liability
or the amount of damages.

THE ACCIDENT

[2]            
I find the following facts.

[3]            
More than six years ago, on May 25, 2007, Mr. Jang, who is now 61
years old, was walking along a trail in Burnaby Central Park with his wife,
Teresa Jang. The defendant, Claude Ritchie, was cycling along the same trail
travelling in the same direction as Mr. and Mrs. Jang. Mr. Ritchie
lost control of his bicycle and drove into Mr. Jang striking him in the
back. Both men tumbled to the ground. Mr. Jang’s left hand came down hard
on the pavement. He suffered a broken wrist and was in excruciating pain
immediately after he was struck and fell. An ambulance attended and transported
Mr. Jang to Burnaby General Hospital where he almost immediately underwent
surgery. It took the surgeon about two-and-a-half hours to reconstruct the
shattered bones in Mr. Jang’s wrist.

[4]            
I find Mr. Ritchie was negligent in driving his bicycle into Mr. Jang.

INJURIES

[5]            
I also find that Mr. Ritchie’s negligence caused Mr. Jang’s
injuries. The injuries were fully described in the medical opinion of Dr. Melvin
Serink, an orthopaedic surgeon. Dr. Serink stated in his opinion:

…[Mr. Jang] suffered a comminuted fracture involving
his left distal radius and ulna. He subsequently was treated with a closed
reduction and a Hoffman external fixator. Postoperatively he developed Sudeck’s
dystrophy with generalized pain and swelling related to his wrist and PIP
joints of his left hand. As a result of his injury, he has been left with
permanent soft tissue contractures involving the PIP joints of the fingers
involving his left hand. He also has been left with complaints of pain and
weakness related to his left wrist associated with generalized stiffness. … [Mr. Jang]
is aware of stiffness associated with loss of extension and flexion. As a
result of his Sudeck’s he does have decreased power and dexterity related to
the fingers of his left hand.

His range of motion shows loss of extension and flexion by
approximately 50% percent. Supination is decreased by approximately 20%. His
power grip is significantly decreased secondary to generalized pain related to the
PIP joints.

X-rays of his left wrist from
January of this year [2012] [show] the complete loss of the space involving the
radiocarpal joint. The un-united ulnar styloid is evident. The early osteophyte
formation involving the distal radial styloid is also evident.

I have paraphrased slightly to insert Mr. Jang’s
name and so on.

[6]            
I accept Dr. Serink’s uncontradicted opinion in this case. His
observations are consistent with Mr. Jang’s testimony and my own
observations of Mr. Jang’s left hand, which is fixed in a somewhat
claw-like position. I also find that Mr. Jang’s condition is permanent. The
progressive nature of the injury-induced arthritis in his hand will, if
anything, increase Mr. Jang’s symptoms as time goes by. Dr. Serink
examined Mr. Jang and provided the following opinion in this regard:

As a result of the destruction of
the articular cartilage involved in his original fracture, he has developed
significant post-traumatic degenerative arthritis. The soft tissue contracture
which occurs as a result of the Sudeck’s dystrophy will be permanent. As a
result, he will be left with complaints of pain, weakness and generalized
stiffness. These complaints will not significantly improve with rest, time or
further physiotherapy. At the present time [Mr. Jang] is well motivated
and is using Tylenol on a p.r.n. basis for pain control.

DAMAGES

[7]            
I turn first to non-pecuniary damages. Mr. Jang came to Canada from
Korea 30 years ago. He did not speak English so opportunities were limited. A
friend taught him how to make sushi. Mr. Jang found a job working as a
helper in a sushi restaurant. Within two years, he had worked his way up to
sushi chef, a position he held for the next 25 years in fairly well-known sushi
restaurants in the Lower Mainland.

[8]            
Mr. Jang is not a complicated man. His life has centered on his
work and his family. He has a strong sense of responsibility to the members of
his family. Within a few years of arriving in Canada, he brought his parents
over from Korea. He worked hard throughout his life to support them, his wife,
Teresa, and their two children, Christopher and Angela. Mr. Jang took
pride in his ability to provide for his family and to care for their home. He
had limited recreational and social activities outside of work and family,
walks in the park, swimming at the community centre, and weight training. His
life has been profoundly affected by this injury.

[9]            
Mr. Jang demonstrated in the courtroom how sushi is made. He
described the need to be able to grip, compress, and roll rice, seaweed and
filling with both hands, something he can no longer do. Mr. Jang cannot
grip fish with his left hand and cut with his right as he is required to do in
order to make sashimi. He cannot carry the rice pots to his work station. He
works at half the speed he used to. Mr. Jang said it now takes him two
minutes to make a sushi roll whereas in the past before the accident, he could
prepare a sushi roll in one minute. Even trying to modify the manner in which
he makes sushi, given the limitations in his left hand, Mr. Jang’s career
as a sushi chef is not viable. The injuries in his hand have effectively brought
an end to that career. That is so because speed is essential in a busy
restaurant. It is also the case because of the pain in his hand.

[10]        
The family has had to borrow $30,000 from the bank and Mr. Jang is
understandably worried about the family’s finances. At home, he can no longer
do simple tasks he needs to do to help out, such as tightening a loose plumbing
fixture, carrying a laundry basket, or vacuuming. Swimming is difficult because
Mr. Jang cannot cup the water with his left hand. He cannot weight train
in the same way because he has trouble gripping the weights. Even walking is no
longer the pleasure that it once was because he is anxious about being struck
from behind and finds himself constantly checking over his shoulder. The
limitations imposed by Mr. Jang’s injured left hand have made Mr. Jang
at times angry, worried about the future, frustrated, and sad.

[11]        
Mr. Jang was in a cast for three months and underwent extensive
physiotherapy. Despite that, he continues to have constant pain. He described
the pain as eight on a scale of 10. He gets shooting pains on activity.
Mr. Jang manages the pain by using Tylenol 3 and heat and by massaging his
hand.

[12]        
Mrs. Jang touchingly described her husband of 30 years as “hard on
the outside, but soft on the inside, a nice man”. She and her daughter, Angela,
both described the difficulties they have observed Mr. Jang having now
with even simple tasks such as opening a jar.

[13]        
Counsel for Mr. Jang took me to a number of cases with somewhat
similar facts including Paras v. Muirhead (1996), 71 B.C.A.C. 17; Ferguson
v. All-Can Express Ltd., [1988] B.C.J. No. 78 (S.C.); Jackson v.
Jeffries, 2012 BCSC 814; Lowe v. Larue, [1998] A.J. No. 1465
(Q.B.); and Kumlea v. Chaytors (1993), 76 B.C.L.R. (2d) 337 (C.A.). Counsel
submits non-pecuniary damages in the range of $60,000 to $85,000 would be
appropriate.

[14]        
While the cases provided to me are helpful, they are not, of course, determinative.
Each case must be decided on its own facts. The cases referred to me include
some differences such as plaintiffs who are younger or plaintiffs with soft
tissue injuries as well as a wrist injury. In many of the cases, the injuries
the plaintiffs experienced were not as severe as the injury experienced by Mr. Jang.

[15]        
Having considered all of the cases and the particular facts of this
case, I am satisfied an award of $80,000 is appropriate for pain, suffering,
and loss of enjoyment of life.

[16]        
As for out-of-pocket expenses, Mr. Jang underwent physiotherapy and
acquired a few pieces of equipment to rehabilitate his hand. I award those
special costs. I do not award the cost of a pass to the community centre to
permit Mr. Jang to swim and work out because, based on his evidence, he
was doing that prior to the accident as well. It follows that the cost of a
pass is not attributable to the injuries. The amount that I award for special
costs is $1,387.

FUTURE CARE COSTS

[17]        
There is evidence that Mr. Jang manages his pain with regular use
of Tylenol. I award $500 to cover that cost of future care.

PAST AND FUTURE WAGE LOSS

[18]        
Mr. Jang could not work for months following his injury. He tried
to return to work, but could not work as many hours. In 2010, about two years
after the accident, Mr. Jang went back to work full-time, but he was slow
and needed to be accommodated, for example by getting help to carry the rice
pots he needed to make sushi. Ultimately, the pain in his hand proved to be too
much for Mr. Jang. As he worked, he would regularly get debilitating shooting
pains up his arm.

[19]        
Mr. Jang has diabetes and has had significant health problems prior
to this accident. He described his immune system “shutting down” which caused
him to be off work for some time prior to the accident. He is entitled to be
compensated only for the losses flowing from the injuries caused by Mr. Ritchie’s
negligence. Mr. Jang is not entitled to be put in a better position than
he would have been but for the accident.

[20]        
I find that Mr. Jang was working 30 hours a week at the time of the
accident and earning $12.50 an hour. He made $750 a week or approximately
$19,500 a year. Based on those figures and deducting his earnings for 2007
through to trial on November 26, 2013, I find past wage loss of $79,215.

[21]        
This is not a case in which Mr. Jang has failed to mitigate his
losses. He testified without a translator at trial but his English, while
passable, is marginal and broken. Mr. Jang tried to find other work. He
looked into jobs at the bottle depot and at grocery stores. Because of his very
limited English and his lack of education and training, I accept that he is
suited primarily for labour jobs. He cannot do those jobs now because of the
loss of strength and flexibility in his left hand. Mr. Jang testified he
planned to retire at age 65. From trial to retirement on February 28, 2017, a
straight calculation of his wage loss using the same hourly rate and number of
hours would be $73,125. That figure is not adjusted to take into account the
present value of future earnings which would slightly reduce the award, but nor
does it take into account increased hourly rates which would likely take place
over time.

[22]        
As set out by the Court of Appeal in Perren v. Lalari, 2010 BCCA
140, the assessment of damages for loss of future earning capacity is not a
precise mathematical exercise. The loss can be quantified on a capital asset
lump sum basis or on a mathematical basis. The standard of proof is a real and
substantial possibility of out-of-pocket loss. The mathematical approach is
helpful in this case in assessing damages, but given Mr. Jang’s previous
health issue, I conclude it is appropriate to discount the amount to reflect
the negative contingency that Mr. Jang might not have been able to work as
much as he has in the past right up to the age of 65.

[23]        
I therefore set damages for loss of future earning capacity at $65,000.

[24]        
I will now summarize the damage awards I have made. For non-pecuniary
damages, $80,000; for special expenses, $1,387; for future care costs, $500;
for past wage loss, $79,215; and for future loss of earning capacity, $65,000. The
total award, if I have correctly added those figures, is $226,102.

[25]        
Mr. Jang is entitled to his costs at Scale B.

[26]        
Is there anything arising, counsel?

[27]        
MR. ILNYCKYJ:  No, My Lady, thank you.

The
Honourable Madam Justice L.A. Fenlon