IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Le v. Point, |
| 2014 BCSC 1205 |
Date: 20140630
Docket: M102348
Registry:
Vancouver
Between:
Nguyen Dinh Luu Le
(aka Nguyen Le)
Plaintiff
And
Charla Grace Point
Defendant
– and –
Docket: M112766
Registry:
Vancouver
Between:
Nguyen Dinh Luu Le
Plaintiff
And
Nancy M. Dickson
Defendant
Before:
The Honourable Madam Justice Russell
Supplementary
Reasons to Le v. Point, 2014 BCSC 154.
Reasons for Judgment
Counsel for the Plaintiff: | J.I. Solomon B.A. Makohn |
Counsel for the Defendants: | T. Kushneryk |
Place and Dates of Trial: | Vancouver, B.C. September 9-13, 2013 October 11, 2013 |
Place and Date of Judgment: | Vancouver, B.C. June 30, 2014 |
TABLE OF
CONTENTS
The 2008 Collision and its Aftermath
The 2010 Collision and its Aftermath
Loss of Future Earning Capacity
Introduction
[1]
The plaintiff, Nguyen Le, was involved in two motor vehicle accidents.
[2]
In the first collision, which occurred on September 3, 2008 (the 2008 Collision),
liability was admitted by the defendant, Charla Point.
[3]
In the second collision, which occurred on March 23, 2010 (the 2010
Collision), liability was contested by the defendant, Nancy Dickson. I
apportioned the fault for the 2010 Collision as 70% to Mr. Le and 30% to Ms.
Dickson in previous reasons for judgment: Le v. Point, 2014 BCSC 154.
[4]
In that judgment I requested that counsel provide written submissions detailing
their positions and arguments on whether Mr. Les injuries are divisible or
indivisible and how to calculate and apportion damages between the defendants
under each head of damages given the finding of liability for the 2010
Collision.
[5]
These reasons address the plaintiffs claims for non-pecuniary damages,
past wage loss, loss of future earning capacity, cost of future care and
special damages arising from both the 2008 Collision and the 2010 Collision.
The Plaintiffs Case
The Plaintiff
[6]
Mr. Le immigrated to Canada from Vietnam when he was five. His family
arrived with nothing, has worked very hard to achieve prosperity and now lives
in Shaughnessy.
[7]
During his school years, his parents pushed him hard to achieve academic
success. He fulfilled their expectations until Grade 11 when his preoccupation
with friends and sports interfered with his achievement. However, he was
Athlete of the Year every year he was in high school.
[8]
In high school, he played volleyball, basketball and ran in 100 yard,
400 yard and long distance events.
[9]
He began playing golf when he was eight years old. However, golf is an
expensive sport and he could not afford to devote concentrated time to it until
he had finished high school.
[10]
Mr. Le could not afford to take many golf lessons while he was in his
teens. He says that he was fortunate to have a natural, fluid swing that only
needed to be tweaked to be successful. His swing was based on his natural
flexibility, balance and lower body strength.
[11]
It was his facility for golf which led him to decide he wanted to pursue
a career in golf.
[12]
He finished high school in 1998. He obtained a diploma in finance from
Langara College with top marks in 2002. He moved on to Simon Fraser University
(SFU) in the summer of 2003, intending to obtain a Bachelor of Commerce
degree. He spent the summer golfing before he began attending SFU.
[13]
Mr. Le did not finish his degree. He was much more interested in golfing
than going to classes and he left SFU in 2005.
[14]
After a brief time working at Best Buy, he took an entry level position
with the Royal Bank of Canada (RBC). He progressed with RBC and was offered a
promotion in 2008.
[15]
At this time, he was 28 years old and felt it was now or never to pursue
his dream of golf. He discussed the crossroads he felt he had reached with his
family and long-time partner, Felice Lee, and they agreed he should pursue his
dream of getting into the golf industry.
[16]
He left RBC in May 2008 to pursue this ambition.
[17]
At that time, he says his golf was at its best. He characterized himself
as a scratch golfer capable of playing at a tour level.
[18]
He states he was in top physical condition and had no injuries or pain. In
2006, he had suffered an injury to his knee playing indoor soccer but he says
by 2008 it had recovered completely following surgery.
[19]
Before he left RBC, he took his vacation in April 2008 to travel to
Florida to a well-known golf academy. He spent every day of his vacation
playing and practicing golf. He played between 10-15 rounds in total.
[20]
At that time, he met Jin Ko, a Canadian from Korea who now plays on the
Thai Professional Golf Association Tour, and formed a friendship with him.
[21]
He and Mr. Ko played together during the pre-collision 2008 visit to
Florida, as well as during visits in the next three years. Mr. Ko also came to
Vancouver to visit him.
[22]
While he was in Florida, he decided he would commit to becoming a golfer.
His first choice would be to join the Professional Golf Association (PGA)
tour. If that were not to be, he would become a golf professional at a club
where he could instruct, coach and possibly do some professional caddying.
[23]
He did not play in any qualifying tournaments before 2008 because he did
not have the money to pay the entrance fees. While he indicated he had played
in some local tournaments, he did not have any records of them. Neither was he
able to produce any scorecards, although he said he did keep his scores and
playing statistics and knew his ability day-to-day.
[24]
When challenged during cross-examination about his inability to produce
any scorecards, he said that perhaps his partner or his mother threw them out.
[25]
He described it as hard work to get from a ten handicap to five and then
from five to zero as ultimately depending on his natural ability as a golfer.
[26]
To become a player on the PGA tour, a golfer must first attend
Qualifying School (Q School), register as a pro and pay a large fee. Then a
golfer must play through six stages of qualifying events. If that golfer makes
it through to the final event with acceptable scores, then entrance to the PGA
tour is open. However, even if a golfer does not survive all six levels of
competition to reach the PGA tour, lower level tours may be open, such as
Web.com, the Canadian Professional Golf Association (CGPA) tour, and other
local tours.
[27]
To become a golf professional in Canada, a golfer must first pass the
Player Ability Test (PAT).
[28]
Before the 2008 Collision, the plaintiff planned to attend Q school, and
to work to qualify to join the PGA tour. He had booked a three-month trip to
the golf academy in Florida to commence in October 2008 and was training full
time in Vancouver to be ready for this intensive training period.
The 2008 Collision and its Aftermath
[29]
The 2008 Collision occurred when the plaintiff was on his way home from
playing golf at the Musqueam Golf Course. He was sitting in the front passenger
seat in his brothers car, his brother was driving and their friend Helen Chu
was in the back seat. The car was broad-sided on the front passengers side
door by the defendant Ms. Point at the intersection of 41st Avenue
and Dunbar Street in Vancouver.
[30]
Mr. Les brother was proceeding north on Dunbar through a green light
when the defendant came through the red light heading west on 41st.
[31]
The plaintiff describes the impact as severe. Fortunately, he was
wearing his seatbelt. However, he hit his right shoulder against the passenger
door and suffered whiplash as a result of the sudden right to left movement
occasioned by the impact.
[32]
Following the impact, he recalls feeling dizzy, his head throbbing and
his neck and shoulder aching. He felt tingling down his spine and felt back
pain. He did not suffer a loss of consciousness.
[33]
As the day progressed, his headache got worse. He felt immobilized by
his pain and he rested and used ice on his bruised right shoulder and neck. He
saw his family doctor, Dr. Tung Nguyen.
[34]
Dr. Nguyen gave him a referral for physiotherapy. He attended for two
sessions immediately after the 2008 Collision.
[35]
He decided he would not give up his golf trip and he went to Florida as
planned for a three-month stay.
[36]
Once in Florida, he says that his injuries interfered with his ability
to practice. He had only about two-thirds of the stamina he had had before the
2008 Collision. His swing was affected, his drive became shorter and less
consistent and his score increased. From being a scratch golfer, he began to
score in the mid to high seventies and occasionally, scored in the low
eighties.
[37]
Although he was in strong physical shape during the summer before the 2008 Collision,
he now found himself unable to get through a game without pain.
[38]
He also felt his emotional stability declining as he saw the sacrifice
of his RBC career being wasted since he was unable to play as well post-collision
as pre-collision and he saw his hopes of making a major achievement in golf
disappearing.
[39]
During this time in Florida, he again played with Jin Ko, and stayed
with him until his return to Vancouver.
[40]
On his return to Vancouver and up to the 2010 Collision, he went to
physiotherapy regularly, exercised at a gymnasium, did yoga and swam, but his
pain continued.
[41]
His neck did improve but not to the extent that he recovered his former
flexibility. To do a shoulder check while driving now requires him to turn his
whole body.
[42]
He finds driving generally uncomfortable due to the pain in his back. He
says this problem never really resolved but treatment prevented it from getting
worse.
[43]
After a time of trying rehabilitative measures, he realized that Q
School was now beyond his abilities. He revised his ambitions and decided to
attempt to become a golf instructor.
[44]
He decided he would attempt the PAT, a pre-requisite to becoming a golf
instructor. Another pre-requisite was that he be employed in the golf industry.
In 2009, he obtained a job at the Point Grey Golf and Country Club. He was a
back shop manager, a position which allowed him to practice free on a
challenging course while still earning.
[45]
His wage of $11.50 per hour was low, far less than he could earn at his
RBC job, but it was in the industry he was seeking to join.
[46]
He attempted the PAT in August 2009 at Royalwood Golf Course in
Chilliwack. The test consisted of two rounds of golf over two days. To pass the
test required achieving a total score of no more than 156. The plaintiff scored
157.
[47]
He blames his injuries for his inability to meet the then-required score
limit.
[48]
Had he passed the PAT he would have applied to the CPGA and, through
their teaching program, would be a CPGA-certified golf professional. He would
have started as an instructor immediately at Point Grey Golf and Country Club.
He had good relationships there and could have begun to build clientele.
[49]
Some two years later, the CPGA notified him that he had in fact passed
as the Royalwood Golf Course had been re-rated upwards and his PAT score of 157
was sufficient to qualify. But at the time he tried the PAT in August 2009, he
failed to make the qualifying score by one stroke and was deeply discouraged.
[50]
Had he passed the PAT, it would also have been open to him to apply at
local public courses where he would meet many golfers and with success over
time, progress from an assistant professional to head professional, the leader
of the instructing team at a course.
[51]
He would have required a good resume, with experience in teaching and
good competition results at the local and national level.
[52]
He estimates the earnings of an assistant pro at $40,000 to $80,000 per
annum depending on the number of lessons he could give and the split between
the course and the professional.
[53]
As a head professional, he estimated he could earn $70,000 to $100,000
per annum since he could charge more for lessons at this more senior level.
[54]
The plaintiff carried on at Point Grey Golf and Country Club after he
failed to obtain the qualifying score in the PAT for the second time. He
intended to work on his game to see if he could regain his former skill level.
The 2010 Collision and its Aftermath
[55]
The plaintiff was on his way to Point Grey Golf and Country Club to work
and practice to re-take the PAT on the morning of March 23, 2010 when the 2010
Collision occurred.
[56]
The plaintiff was heading west on 33rd when he came to the
intersection of 33rd and Arbutus. He was riding his mothers small
Honda scooter and wearing a snowboarding helmet instead of a standard
motorcycle helmet.
[57]
There was a car ahead of him that had stopped to turn left to go south
on Arbutus. The plaintiff passed on the right to proceed around that car. He
was not travelling quickly. He says he signalled and pulled out to pass the
left-turning car at a speed of about 35 to 45 km/h. As he came through the
intersection a car driven by the defendant Dickson turning left from 33rd
eastbound to go north on Arbutus, was completing its turn. He tried to swerve
around the defendants vehicle, but he collided with its right rear tail light,
lost control of the scooter and fell over.
[58]
The plaintiff hit the ground with some force. He landed on his left side
in the road, hitting his left shoulder, arm and hip. He had on a heavy jacket
but suffered some abrasions to his left side from contact with the road.
[59]
Immediately after he fell onto the pavement, he says he smelled gas. He
was fearful of a fire or explosion but passersby reassured him and persuaded
him not to move until the ambulance arrived.
[60]
The scooter was written off. The defendants vehicle suffered only the
loss of the plastic cover over the right rear taillight. There was debris found
in the northeast corner of the intersection from the defendants rear
taillight.
[61]
His helmet bore some scratches post-impact and without being certain, he
says he may have momentarily suffered a loss of consciousness although he
reported to others that he did not suffer any loss of consciousness. Fortunately,
he did not suffer any concussion.
[62]
He characterized this impact as the more serious of the two he had
suffered and called it the most severe crash of his life.
[63]
The plaintiff said that the most prominent problem from the 2008
Collision was his low back. The pain of the 2010 Collision involved his entire
back and he lost more strength and flexibility. As well, his left shoulder was
very sore at the point of impact. He could not rotate it at all.
[64]
He feels that his low, medium and upper back cause him almost constant
pain with tingling up to his neck. At first he suffered debilitating headaches
and had to take medication to deal with the pain.
[65]
Currently, he says his headaches have reduced in frequency and severity
to about 3-4 per week. He was taking Tylenol 3 prescribed by his doctor when
the pain required it but now he tries to drink water and get some air to deal
with the headache in a less invasive way. He no longer takes medication to deal
with the headaches.
[66]
His neck has improved more than his back but he has not recovered his
pre-accident range of motion.
[67]
His shoulder has also progressed to the point he is back to playing
sports and although he gets pain as a result, it is not present all the time as
it was immediately following the 2010 Collision.
[68]
Currently, the pain in his upper back has improved although his previous
mobility and strength have not.
[69]
He says his lower back has gotten worse and he has a constant feeling of
being punched in his lower spine. It affects everything he does from sitting in
the office to driving.
[70]
Following the 2010 Collision, he missed about two weeks of work at Point
Grey Golf and Country Club.
[71]
Once he returned to work, he tried to work on his game so he could
re-try the PAT exam. He tried again in June/July 2010 and then again in August
2010, all without success.
[72]
He says the effect of the 2008 and 2010 Collisions has been to reduce
the strength of his swing and to interfere with his ability to rotate and thus,
follow through on his swing. This limitation on his ability to follow through
interferes with the consistency of his swing.
[73]
He blames the continuing pain in his lower back and neck as the main
problems affecting his swing: in particular, his rotation, balance, strength,
speed and fluidity.
[74]
Following the 2008 Collision, his handicap increased to five. His game
seriously declined after the 2010 Collision and his handicap further increased
to ten.
[75]
No record of his handicap was produced.
[76]
His results on the PAT declined and he missed the cut by eight strokes
(over two rounds) in June/July 2010 and by between 15-20 strokes (over two
rounds) in August 2010.
[77]
He lost confidence that he could ever make the PAT required score and
realized he had to reassess his dream. He felt he had wasted a great deal of
time and money trying to reach this goal.
[78]
At a low ebb emotionally, he left the Point Grey Golf and Country Club
and went for a visit to Vietnam to take time to weigh his options. It was also
a time when the golf club was much less busy with the change of season. It was
while he was in Vietnam that he learned his 2009 score on the PAT was within
the limit to pass and he was eligible for the CPGA program.
[79]
He was happy to learn of his eligibility for the CPGA program. He joined
in 2011 and paid for the courses he was required to take to become a full member.
[80]
He applied to teach at the Fraser Golf Centre in Langley after becoming
a CPGA member. He was hoping to teach since the earnings from teaching are
superior to the hourly rates paid for his work in the back shop and he could
retain 75% of the lesson fees of $45 per hour.
[81]
He worked from April to October 2011 at Fraser Golf Centre and earned $7,456
in the back shop. He declared these earnings on his income tax return.
[82]
However, he also earned $19,807 from teaching golf lessons which he did
not declare. He blames this omission on his mothers failure to correctly
prepare his tax return and on his own inexperience at being self-employed. He
says he will correct the mistake.
[83]
He did not provide a revised income tax return for 2011 showing his
additional income.
[84]
While he enjoyed teaching at Fraser Golf Centre, he still had pain when
he stood to watch his students play and when he tried to demonstrate a swing. The
drive to Langley was also tiring. He felt he was shortchanging his students so
left Fraser Golf Centre in October 2011.
[85]
It appears the plaintiff would have earned about $50,000 per annum at
Fraser Golf Centre had he been able to remain as a full time assistant pro,
although he asserts he would have immediately doubled his salary had he passed
the PAT test in August 2010.
[86]
Despite his difficulties at the golf pro job, in November 2011, the plaintiff
accepted an offer from Jin Ko to come to Florida to coach and caddy for him
one-on-one. The plaintiff thought such a job would allow him to remain in golf
and would present less strain on his back. He also thought there would be a
prospect for higher earnings if Jin Ko played well.
[87]
He stated his potential for earnings with Jin Ko was about $100-200 per
hour for coaching and as a caddy he would receive a base salary and 10% of any
tour winnings.
[88]
There was no evidence of what the base salary would be.
[89]
There is no evidence of whether he made any earnings while working with
Jin Ko.
[90]
In Florida, the plaintiff encountered problems with both the coaching
and caddying. He spent long hours on the course analyzing Jin Kos play, in
particular his swing. He would have to bend for balls, demonstrate, watch
putting for hours at a time and his back and neck could not take the strain.
[91]
When he was caddying, he could not carry the golf bag for long periods
and could not keep up with Jin Ko on the course. He was forced to use a golf
cart but still suffered an increase in back spasms and required bed rest.
[92]
He managed one day of caddying and spent the next day resting. After a
couple of weeks, he tried caddying again and could not manage it.
[93]
He did not go to see a doctor at any time while in Florida. Instead he
had a couple of massages through friends of Helen Chus. He returned to
Vancouver in early December 2011 where he and his longtime partner, Felice Lee,
broke up after almost 10 years together.
[94]
On his return to Florida in January 2012, his two cousins came with him.
He was still having problems with back pain and gave up working with Jin Ko.
[95]
The combination of his pain, lack of employment, and the breakup with
his partner contributed to depression. The plaintiff did not seek medical help
but decided he should travel to India to study meditation and sort out his
goals.
[96]
He backpacked in India for three months, during which he meditated and
volunteered for a non-governmental organization teaching children in slums in
India. He returned feeling better and no longer only focused on golf.
[97]
He and Ms. Lee were able to reconstruct their relationship five to six
months after their breakup. They moved to one of the Plaintiffs fathers
rental properties where they live now.
[98]
The plaintiff owns two rental properties which he says are investments
for the future. They do not provide income but their rent pays the mortgages. He
did not indicate how he had been able to afford the down payments.
[99]
As for the ongoing impact of the injuries, the plaintiff says it
continues to affect his ability to enjoy life. He still has moody days where he
realizes he cannot go back to his former level of activity. When he hikes with
Ms. Lee, he can no longer run up the mountain as he once did and he lags behind
her.
[100] He has not
been able to afford to purchase gym passes on a consistent basis. He relies on
friends who live in condominium complexes with gyms and on his girlfriend, who
is a certified yoga instructor and has expertise in swimming and fitness. He
also relies on her to do strength training and to walk with him.
[101] He would
like a yoga membership, which he estimates at $60 per month.
[102] In
addition, he would like to have a gym membership at a community centre, which
costs approximately $50 per month.
[103] The plaintiff
foresees a need for continuing physiotherapy. He says that attending
physiotherapy three times a week would assist him to control his pain. He would
also like to continue with acupuncture as it has improved the range of motion
in his neck but not yet to what it was before the accidents.
[104] He resumed
his job at RBC in April 2013. At that job, he is able to get up and move around.
Sitting in a stationary position for too long is painful for him. He has not
asked for accommodation from his employer but he rejected the suggestion that
he has not had any such need.
[105] However,
he is ambitious and hopes to move up from his low-tiered sales job as an
account manager. He says his discomfort with driving may affect his ability to
go out and visit clients and this may affect his upward mobility and his
earnings.
[106] He is also
working on a business degree at an on-line university which offers courses
which are condensed into about half the time of ordinary university courses.
[107] He was
continuing to work on these courses while in Florida working with Jin Ko.
Between November 2011 and January 2012, he took two courses.
[108] During the
time he was resting due to back spasms, he was able to continue studying and
reviewing his notes.
[109] He intends
to finish his on-line degree by December 2013. Thereafter he plans to go to
graduate school for a Masters degree in Business Administration.
[110] Currently,
his partner does most of the heavy housework in their basement suite. He waters
the garden and does some dishes. He would like help with the housework and
estimates the cost for hiring someone at $200-300 per month for the foreseeable
future.
[111] His
current problems are primarily with his back and while he copes with the pain
he suffers, he regards the pain as an impediment in his life.
Felice Lee
[112] Ms. Lee
confirmed certain elements of the plaintiffs evidence and referred in
particular to the hike in Deep Cove they had done recently where he could not
keep up with her.
[113] She is
able to assist him with yoga, swimming, and fitness.
[114] Despite a six-month
separation at the end of 2011, she remains his partner today and plans to marry
the plaintiff and have children with him in the future.
[115] She is
honest that what she knows about the plaintiffs golf game is from what he has
told her, not from her observation.
[116] She also
acknowledges that the plaintiff has been a golf fanatic since she met him and
she knows it is important not to mess with his golf stuff, including his golf
equipment and his golf documents. She also does not believe his family would
interfere with his golf materials.
Jin Ko
[117] Mr. Ko met
the plaintiff on his first trip to Florida before the 2008 Collision.
[118] They
became friends and spent time practicing and golfing together.
[119] Mr. Ko was
at that time a recently qualified professional golfer. He had begun his
professional career at age 18.
[120] He noticed
the quality of the Plaintiffs swing and was impressed by the distance he could
hit the ball even though he was of slight stature. The plaintiffs short game,
too, was skilled and he had an aggressive attitude towards the game.
[121] In 2009,
after the 2008 Collision, Mr. Ko noticed that the plaintiffs swing had lost
some fluidity and was not as good as it had been.
[122] He came to
Vancouver to see the plaintiff in the summer of 2009 and caddied for him when
the plaintiff took the PAT. Mr. Ko agreed that the score of 157 was very good,
even though at the time it meant the plaintiff had missed qualifying for the
CPGA by one stroke.
[123] After the
2010 Collision, it was Mr. Kos view that the plaintiffs game had deteriorated
further. He noticed the plaintiff needed to take time out to stretch and he
found this rather amusing. However, he felt that the plaintiffs game had
changed substantially for the worse and that the slump was not temporary.
[124] He watched
the plaintiff attempt the PAT on at least two other occasions in Vancouver and
was embarrassed for him because he played so badly.
[125] Badly is,
of course, a relative term but the plaintiff missed the PAT by even more
strokes in 2010 when he re-attempted the PAT within a few months of the 2010
Collision.
[126] As the plaintiffs
friend, Mr. Ko offered him the opportunity to come to Florida to coach him and
caddy for him.
[127] The plaintiff
came to Florida in December 2010 but the caddying was not possible for the plaintiff
and the pain he was suffering proved a distraction to Mr. Ko who was trying to
compete and at the same time worrying about the plaintiff carrying his bag.
[128] Mr. Ko
also noticed the plaintiff appeared to be in pain when trying to coach.
[129] Notwithstanding
the failure of this experiment, the plaintiff returned to Florida in January
2011 but was again unable to caddy or coach. Mr. Ko remembers that for the
months of January, February and March, the plaintiff was unable to play a
complete game of golf.
[130] Mr. Kos
English was somewhat problematic and the dates he provided were inaccurate so
that I have some concern that his answers must be regarded with care. I am also
aware that he is a good friend of the plaintiff.
Tommy Le and Dr. Kiet Do
[131] Mr. Le is
the plaintiffs brother and Dr. Do, his cousin.
[132] Both Mr.
Le and Dr. Do testified that the plaintiff was a scratch golfer before his 2008
Collision and that they saw a marked deterioration in his play thereafter since
his swing was affected by his injuries.
[133] They also
agreed that there was even more deterioration in his game after the 2010
Collision.
Drew Scollon
[134] Mr.
Scollon is an assistant golf pro at the Point Grey Golf and Country Club.
[135] He passed
his PAT in 2005 or 2006 in Alberta and has been at Point Grey Golf and Country
Club since 2008.
[136] Based on
his own experience, he says the salary for an assistant golf pro is between
$30,000 to 60,000 per annum depending on the facility and the amount of
teaching available.
[137] He
describes his job as pretty great.
[138] At the Point
Grey Golf and Country Club, he keeps 100% of his teaching revenues.
[139] He hired
the plaintiff in 2009 when he took a job in the back shop preparing equipment
for club members and caring for the practice areas.
[140] He says
the plaintiff left in September 2009 at the end of the golf season to go south
to work on his golf game. The plaintiff could have stayed longer but there is
no doubt the season tails off in September/October and there are some staff
reductions as a consequence.
[141] He
believed the plaintiff had good potential as a golfer and played a lot with him.
It was his recollection that if the plaintiff was playing well, he averaged a
score of about 80.
[142] Mr.
Scollon witnessed the plaintiffs frustration with his game following the 2010
Collision. He relied on injuries he has suffered to say that even a mild injury
can affect ones golf game.
[143] Mr.
Scollon says that statistics are important for golfers as golf is a game of
statistics. Keeping a close eye on ones statistics is important for a golf
pro.
Plaintiffs Medical Evidence
A. Dr. Rhonda Shuckett
[144] Dr.
Shucketts qualifications were accepted without contest as a certified
rheumatologist and internist with expertise and experience in dealing with
arthritis, soft tissue pain, myofascial pain syndrome, fibromyalgia, chronic
pain syndrome, neck, back, shoulder, hip and knee problems and any area of the
musculoskeletal system that is dealt with non-surgically.
[145] She
prepared three medical legal reports at the request of plaintiffs counsel.
[146] The
reports are dated June 2, 2010, August 29, 2011 and April 12, 2013.
[147] Dr.
Shucketts reports are clear and comprehensive and as a witness, she is quick
to admit to limitations on her ability to comment and agrees where she has not
been presented with the most current evidence.
[148] She gives
the Court confidence that she understands and accepts her role as expert and
not as advocate.
[149] At the
same time as she is in all respects a useful expert, I cannot help but note
that in her final report she misstates the dates of both accidents in which the
plaintiff was involved.
[150] She lists
them as May 5, 2010 and August 24, 2011 when in fact they occurred on September
3, 2008 and March 23, 2010.
[151] I do not
know whether these inaccuracies would affect her opinion since counsel did not
raise them with her. However, in the body of her report she states the dates
accurately.
[152]
In her June, 2, 2010 report she states:
Of his various symptoms, it appears that his low back and his
left shoulder are his most impairing. He also likely has some musculo-ligamentous
injury of the upper and mid back which I failed to include in the diagnoses
above.
. . .
I believe that the causality of his problem is due to the
subject MVAs. It sounds like the MVA in which he was on a scooter more recently
was the more injurious of the two MVAs but they both appear to have contributed
to his current status. . . . I would also comment that, as far as causality is
concerned, there is a lack of pre-MVA records available to me.
. . .
By now, it is about one and a half years since the September
2008 MVA and there is still room for improvement. However, he may have done the
most part of his improvement by this point in time after the MVA of September
2008.
As far as the March 2010 MVA, it is still very fresh after
the MVA and it is too early to prognosticate.
. . .
I do not consider [him] disabled
but I suspect that he is impaired to some degree from some of nature of his
work and as far as his ease of doing golfing.
[153]
In her August 29, 2011 report, she diagnosed the following:
1. Cervicogenic headaches with a possible component of
tension headaches.
These are not as frequent as they were when I had last seen
him.
2. Neck pain, likely musculoligamentous.
. . .
3. Mid back pain likely musculoligamentous.
4. Low back pain and sacroliac strain, musculoligamentous in
nature.
. . .
If not for the subject MVA of September 3, 2008 and March 23,
2010, I believe that it is unlikely that he would have his current symptoms.
[154] She goes
on to say that there is a significant chance he will be left with his
symptoms but that the decrease in frequency of his headaches and the
improvement to his left shoulder may allow for some improvement in his other
symptoms.
[155] In
closing, Dr. Shuckett opines that the plaintiff will be at risk of exacerbation
of his symptoms should he suffer from another accident or work injury in the
future.
[156] In
cross-examination, she agreed that the fact the plaintiff did a backpacking
trip through India was discordant with the pain he described.
[157] She stated
that she could not conclude with certainty that the back spasms the Plaintiff
experienced while in Florida could only have resulted from the injuries he
suffered in the two accidents. She agreed they could have resulted from a
single incident of overuse or strain or from aging.
[158] In her
April 12, 2013 report she expressly ponders whether the spasms could have been
caused by a fresh injury, although she notes they occurred in the same area of
the plaintiffs spine as his post-collisions pain occurred. Information respecting
the occurrence of earlier back spasms from golfing would have been useful to
her, just as clinical records from the plaintiffs doctor for the period from
November 2011 to the present would have been informative.
[159] She agreed
she did not have all the medical records she ought to have had for her later
report.
[160] I accept
her testimony and her opinion.
B. Dr. William Yu
[161] Dr. Yu was
qualified as an orthopedic surgeon licensed to practice in British Columbia
with expertise in the diagnosis and management of the musculoskeletal system
and both surgical and non-surgical interventions, particularly concerning the
neck and spine.
[162] Dr. Yu saw
the plaintiff twice. The first time he saw him was on April 1, 2011 at the
request of his family physician. He saw him again on November 14, 2012 at the
request of plaintiffs counsel.
[163] He notes
that the plaintiff had pain in his neck, back and right shoulder after the 2008
Collision and still had residual neck and back pain at the time of the 2010
Collision.
[164] Dr. Yus
report appears to minimize the plaintiffs condition somewhat, but on
cross-examination he stated that the conditions in his office are very
different from those in an athletic situation with different stressors caused
to the plaintiffs neck and back.
[165] As he put
it, there is no total correlation on examination with the patients
symptomatology but he was satisfied the plaintiff suffered from ongoing neck
and back pain.
[166] He noted
that the plaintiff could lift his arms and use them without difficulty. There
was no restriction in the range of motion of his shoulders but there was some
loss of mobility. He found that as of the November 14, 2012 appointment, [h]is
left shoulder symptoms have resolved.
[167] The major
problem complained of by the plaintiff to Dr. Yu was his constant low back
pain, worse when he is sitting or standing for one-half hour. His neck pain was
also a problem but not as great a problem as his back pain.
[168] Dr. Yu
opined that the back and neck pain suffered by the plaintiff was transient and
very much activity-related.
[169] He agreed
that the plaintiffs ability to play golf had been affected by his injuries but
believed he could work in an office setting.
[170] He also
opined that the plaintiff could do occasional housework and participate in
recreational activities such as hiking and swimming.
[171] Surgery is
not indicated to address the residual mechanical neck and back pain and he is
unable to say whether there will be any improvement in the plaintiffs neck and
back pain over time.
[172] He
indicated in cross-examination that he cannot say the plaintiffs condition has
plateaued but as of the date of his last appointment with Dr. Yu, the plaintiff
has ongoing pain without any neurological findings.
C. Gina Yago
[173] Ms. Yago
is a physiotherapist registered in British Columbia who has treated the plaintiff
since January 2009.
[174] Initially,
his treatment concerns were his neck, shoulders and low back.
[175] Between
January and October 2009, she treated the plaintiff 37 times for pain in his
neck and back. When she tested his range of motion during this time she found
that he had problems bending his low back from side to side and from front and
back and an inability to move his neck, indicating a continuing stiffness in
his low back and neck.
[176] However,
she agreed that in his appointment on June 5, 2009, he stated he was playing
golf four to six hours a day, but had some pain at night. Her note of June 29,
2009 stated that he had no pain when practicing golf or at night.
[177] After the
2010 Collision, she saw him the day after it occurred. At that time, he had
restricted range of motion in his neck indicating problems from C1 to C7, with
muscle spasms in his neck, and with low back pain involving L1 to L5. He also
indicated localized pain on his left shoulder where he had hit the pavement and
restricted range of motion, particularly with forward flexion.
[178] He advised
Ms. Yago he had suffered no loss of consciousness and no concussion.
[179] Over the
period from March 24, 2010 to February 2012, she saw the plaintiff more than
100 times.
[180] By the end
of her treatment, she noted the plaintiffs neck, shoulder and low back were
all improving but he still complained about pain in his low back.
[181] Although
Ms. Yago agreed she would have made a note if the plaintiff said he was
suffering from headaches, she has no note of the plaintiff complaining of
headaches. She agreed this was a common problem among clients suffering the
effects of injuries to their necks and backs.
D. Dr. Tung Nguyen
[182] Dr. Nguyen
has been the plaintiffs General Practitioner since 2004.
[183] He
prepared an expert report that was withdrawn by the plaintiff when it became
apparent that it had no reliability and likely had been drafted by way of some
sort of generic template taken from other expert reports.
[184] There were
many problems with his evidence, including the fact that he agreed that some of
the comments contained in his report were not taken from his clinical records
but were the result of questions he asked the plaintiff as of his most recent
visit and of giving the report to the plaintiff before finalizing it.
[185] In the
result, since the plaintiff has withdrawn the report, I need not consider any
of Dr. Nguyens evidence and I would not in any event since I cannot be certain
of its basis in fact.
Analysis
[186]
The plaintiff must establish on a balance of probabilities that but for
the negligent actions of the defendants he would not have suffered the injuries
that he did: Clements v. Clements, 2012 SCC 32 at paras. 8-10.
[187]
Where there are two or more tortfeasors, the defendant is not excused
from liability merely because other causal factors for which he or she is not
responsible also helped produce the harm. It is sufficient if the defendants
negligence was a part of the cause of the injury: Athey v. Leonati,
[1996] 3 S.C.R. 458 at paras. 17-20.
[188] The defendants
are not required to compensate the plaintiff for expenses or loss he would have
incurred in his life in any event, even without the accident: Blackwater v. Plint, 2005 SCC 58
at para. 78.
[189] Where a second wrongful act occurs after the first wrongful act each
tortfeasor is entitled to have the consequences of the acts of the other
tortfeasor taken into account. The defendants must compensate for the damages they
caused but not for the effects of the other wrongful act that would have
occurred anyway. This is known as the crumbling skull
rule: Blackwater, at para. 80.
[190] Nonetheless,
defendants must take the victims of their negligence as they find them, and
will be liable for the plaintiffs injuries even if the injuries are
unexpectedly severe owing to a pre-existing condition. This is known as the
thin skull rule: Blackwater, at para. 79.
[191]
Where, as here, there have been two causes of the plaintiffs injuries
it is necessary to decide when awarding damages whether those injuries are
divisible or indivisible as between the two causes. In Bradley v. Groves,
2010 BCCA 361 at para. 20, leave to appeal to SCC refd [2010] S.C.C.A. No. 337
the court explained that divisible injuries are those capable of being
separated out and having their damages assessed independently, whereas indivisible
injuries are those that cannot be separated. The court further observed at
para. 37:
[37]
If a trial judge finds on
the facts of a particular case that subsequent tortious action has merged with
prior tortious action to create an injury that is not attributable to one
particular tortfeasor, then a finding of indivisibility is inevitable. That one
tort made worse what another tort created does not automatically implicate a
thin or crumbling skull approach (as in Blackwater), if the injuries
cannot be distinguished from one another on the facts. Those doctrines deal
with finding the plaintiffs original position, not with apportioning
liability. The first accident remains a cause of the entire indivisible injury
suffered by the plaintiff under the but for approach to causation endorsed by
the Supreme Court of Canada in Resurfice Corp. v. Hanke, 2007 SCC 7,
[2007] 1 S.C.R. 333. As noted by McLachlin C.J.C. in that case, showing that
there are multiple causes for an injury will not excuse any particular
tortfeasor found to have caused an injury on a but-for test, as there is
more than one potential cause in virtually all litigated cases of negligence
(at para. 19). It may be that in some cases, earlier injury and later injury to
the same region of the body are divisible. While it will lie for the trial
judge to decide in the circumstances of each case, it is difficult to see how
the worsening of a single injury could be divided up.
[192]
There are two general approaches to the apportionment of liability for
damages between multiple tortfeasors.
[193]
Long v. Thiessen (1968),
65 W.W.R. 577 (B.C.C.A.) established what is known as the devaluation
approach to the apportionment of damages between tortfeasors who cause the
same damage. This approach was explained as follows at 591:
I think that
the way in which justice can best be done here is: (a) To assess as best one
can what the plaintiff would have recovered against the Thiessens had his
action against them been tried on April 22, 1966 (the day before the second
accident), and to award damages accordingly; (b) To assess global damages as of
the date of the trial in respect of both accidents; and (c) To deduct the
amount under (a) from the amount under (b) and award damages against Laliberte
in the amount of the difference
[194] In Pryor
v. Bains, 1986 CanLII 161 (B.C.C.A.) the court set out another method of
apportionment, which is known as the percentage method. This method requires
a global quantification of damages for all of the plaintiffs indivisible
injuries and apportionment between the tortfeasors on a percentage basis.
[195] Counsel
for the plaintiff argued on the basis of Ashcroft v. Dhaliwal, 2008 BCCA
352 at para. 18 that the court may use either the devaluation or the percentage
approach depending on which is the most practical method on the evidence before
the court.
[196] The plaintiff
submits that his injuries are indivisible. He points to Dr. Shucketts August
29, 2011 report in which she set out that the 2010 Collision was probably most
responsible for his headaches but did not differentiate between the two
collisions regarding causation for his neck and back injuries.
[197] He also
refers to Dr. Yus November 21, 2012 report, in which he noted that the plaintiff
was suffering from neck and back injuries caused by the 2008 Collision at the
time of the 2010 Collision. Given that the injuries sustained in both
collisions were to similar areas of his body, the plaintiff submits that
quantifying his damages using the percentage approach articulated in Pryor
is the most practical.
[198] Plaintiffs
counsel argues that the 2008 Collision and the 2010 Collision were both serious
accidents which contributed equally to his injuries. Therefore he asks the
Court to apportion fault 50/50 between the two collisions.
[199] In the
alternative, the plaintiff submits that if the Court finds that his injuries
are divisible, the devaluation approach used in Long would be
appropriate.
[200] The
defendants argue that the plaintiffs injuries are divisible and that the devaluation
approach should be used to assess damages. In the defendants submission, the plaintiffs
injuries were significantly resolved within a few short days or weeks of the
2008 Collision and the plaintiff had substantially recovered by the time of the
2010 Collision.
[201] The
defendants agree that if the Court finds the plaintiffs injuries indivisible,
the percentage method set out in Pryor would be the most appropriate
method to apportion fault. The defendants argue that in using the Pryor
approach the fault should be apportioned as 30/70 between the 2008 Collision
and the 2010 Collision respectively.
[202] Counsel
for the plaintiff is incorrect in his submission that the Court may use
whichever of the devaluation approach or percentage approach that it finds most
practical. In my view, the comments he relies on from Ashcroft have been
overtaken by subsequent jurisprudence. In Bradley, the court considered
whether the Supreme Court of Canadas decision in Athey had overruled
the line of authority stemming from Long on the method of apportioning
damages between multiple tortfeasors:
[16]
the issue is whether the holding in Athey that
indivisible injuries require joint and several liability between tortious
causes contributing to the same injury means the Long v. Thiessen
approach is no longer available as a means of determining responsibility among
multiple tortfeasors. If that is so, and we conclude that it is, it follows
that Justice Huddarts obiter comment at para. 18 in Ashcroft to
the effect that apportionment of liability under the Negligence Act may
be determined by the devaluation or the percentage approach cannot apply in the
case of an indivisible injury.
[32] There can be no question that Athey requires
joint and several liability for indivisible injuries. Once a trial judge has
concluded as a fact that an injury is indivisible, then the tortfeasors are
jointly liable to the plaintiff. They can still seek apportionment
(contribution and indemnity) from each other, but absent contributory
negligence, the plaintiff can claim the entire amount from any of them.
[33] The approach to apportionment in Long v. Thiessen
is therefore no longer applicable to indivisible injuries. The reason is that Long
v. Thiessen pre-supposes divisibility: Long requires courts
to take a single injury and divide it up into constituent causes or points in
time, and assess damages twice; once on the day before the second tort, and
once at trial. Each defendant is responsible only for their share of the injury
and the plaintiff can recover only the appropriate portion from each
tortfeasor.
[34] That approach is logically incompatible with the concept
of an indivisible injury. If an injury cannot be divided into distinct
parts, then joint liability to the plaintiff cannot be apportioned either. It
is clear that tortfeasors causing or contributing to a single, indivisible
injury are jointly liable to the plaintiff. This in no way restricts the
tortfeasors right to apportionment as between themselves under the Negligence
Act, but it is a matter of indifference to the plaintiff, who may claim the
entire amount from any defendant.
[Bold
emphasis added, underline emphasis in original.]
[203] I turn now
to my findings of fact regarding the Plaintiffs injuries.
The Plaintiffs Injuries
[204] The plaintiff
testified that following the 2008 Collision he had injuries to his back, neck
and shoulders, as well as headaches and dizziness. Following the 2010 Collision
he sustained injuries to his back, neck, and shoulders, as well as headaches,
anxiety and distress.
[205]
The plaintiff claims that as a result of both accidents he currently
suffers from the following injuries:
·
Psychological pain and suffering, including depression, moodiness
and apathy at losing a career in golf and being less capable of participating
in physical activities that he enjoyed prior to the accidents and anxiety while
driving.
·
Mechanical low back pain, which is constant, has not improved,
and is aggravated by stationary positions and certain movements.
·
Mild upper back pain and reduced upper back mobility.
·
Shoulder pain, which is occasional and activity based.
·
Neck pain, which occurs while stretching, engaging in repetitive
exercise, or when immobile.
·
Headaches, which occur on average three or four days per week.
[206] The defendants
argue that the plaintiffs physical injuries from the 2008 Collision were
largely resolved within days or weeks and that thereafter the plaintiff had
only very minor soft tissue injuries that were largely resolved by the time of
the 2010 Collision. They point to Ms. Yagos clinical notes in the summer of
2009, which describe the plaintiff reporting mild stiffness and pain which was
normally addressed by stretching and a hot shower. They also state that Ms.
Yagos clinical notes did not record the plaintiff complaining of headaches.
[207] I accept
that the plaintiffs injuries from the 2008 Collision had greatly improved by
the time of the 2010 Collision. However, he clearly had not recovered fully.
Ms. Yagos clinical notes show that he attended physiotherapy as late as February
26, 2010, less than one month before the 2010 Collision, complaining of
stiffness and pain in his neck and back. Both Dr. Shuckett and Dr. Yus reports
note that the plaintiffs neck and back pain had not resolved by the time of
the 2010 Collision.
[208]
I place little weight on the absence of complaints of headaches in Ms.
Yagos clinical notes. There are many reasons that could account for this absence
that do not impugn the plaintiffs credibility or suggest that he is making a
false allegation. As Smith J. discussed in Edmondson v. Payer, 2011 BCSC
118, affd 2012 BCCA 114:
[34] The difficulty with statements in clinical records is
that, because they are only a brief summary or paraphrase, there is no record
of anything else that may have been said and which might in some way explain,
expand upon or qualify a particular doctors note
[35] Further difficulties arise when a number of clinical records
made over a lengthy period are being considered. Inconsistencies are almost
inevitable because few people, when asked to describe their condition on
numerous occasions, will use exactly the same words or emphasis each time
[36] While the content of a
clinical record may be evidence for some purposes, the absence of a record is
not, in itself, evidence of anything. For example, the absence of reference to
a symptom in a doctors notes of a particular visit cannot be the sole basis
for any inference about the existence or non-existence of that symptom. At
most, it indicates only that it was not the focus of discussion on that
occasion.
[209] In addition,
there are records of the plaintiff complaining of headaches to his other health
care providers. Dr. Shuckett recorded in her August 29, 2011 report that the plaintiff
has [c]ervicogenic headaches with a possible component of tension headaches.
[210] The
evidence demonstrates that the plaintiff suffered injuries to his neck,
shoulders and back as a result of the 2008 Collision. Although these symptoms
improved greatly, he was not fully recovered by the time of the second
accident. The 2010 Collision exacerbated the plaintiffs injuries to his neck,
shoulders and back. The plaintiff continues to suffer from pain and stiffness
in his neck and shoulders, pain in his low back, and headaches. Both accidents
caused anxiety when driving and suffering from pain and loss of physical
ability.
[211] I find
that both accidents have merged to create injuries that cannot be attributed to
either one of the individual defendants. The 2010 Collision aggravated the plaintiffs
lingering injuries from the 2008 Collision to create indivisible injuries.
[212] I accept
the defendants argument that the 2010 Collision was the more serious of the
two accidents and that his injuries were worse following the 2010 Collision
than they ever were after the 2008 Collision. That does not alter the fact that
the injuries caused in both accidents were substantively the same, such that it
is not possible to attribute any particular portion of his injuries to an
individual tortfeasor (see, for instance, Bilanik v. Ferman, 2014 BCSC
732, in which Harvey J. found that two motor vehicle accidents, the second of
which was far more serious, had created indivisible injuries).
[213] According
to Bradley, I must proceed to assess the damages necessary to compensate
the plaintiffs indivisible injuries and then apportion liability between the
two defendants on a percentage basis.
[214] Counsel
for the plaintiffs submission that fault should be apportioned on a 50/50
basis between the two accidents is clearly inappropriate. The plaintiff
testified that the 2010 Collision was the more serious of the two and called it
the most severe crash of his life.
[215] The
medical evidence also documents that the plaintiff described the 2010 Collision
as more serious to his health care providers and demonstrates that the plaintiffs
complaints of pain were much more serious following the second accident. This
is unsurprising considering that in the 2010 Collision the plaintiff was on a
scooter and had very little protection on impact.
[216] Based on
the evidence before me, I agree with counsel for the defendants that fault
should be apportioned as 30% for the 2008 Collision and 70% for the 2010
Collision.
Damages
Non-Pecuniary Damages
[217] Non-pecuniary
damages compensate the plaintiff for pain, suffering, loss of enjoyment of life
and loss of amenities.
[218] Although
a non-pecuniary damages award must turn on the circumstances of the case, the
following list of relevant factors discussed by Kirkpatrick J.A. in Stapley
v. Hejslet, 2006 BCCA 34 at para. 46 are helpful to consider:
(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.
[Citations omitted.]
[219] The plaintiff
submits that an appropriate non-pecuniary damages award in these circumstances
is $125,000. Counsel for the plaintiff referred me to, and I have considered,
the following cases as guides for determining non-pecuniary damages in this
case:
·
Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2011 BCSC
762 – $160,000 – in which a 26 year old plaintiff suffered injuries to his neck
and back from two motor vehicle accidents. The plaintiff had undergone surgery
for his lower back and had significant and unremitting pain in his lower back
which radiated down his legs and required him to rely on a cane. His
disabilities prevented him from working in his chosen career and his marriage
broke down as a result of the changes in his physical and mental health.
·
Albert v. Politano, 2013 BCCA 194 – $125,000 – in which a
jurys non-pecuniary damages award was upheld by the Court of Appeal for a
plaintiff who suffered a chronic injury to his right hand in a motor vehicle
accident that prevented him from pursuing his career in boxing.
·
Pett v. Pett, 2009 BCCA 232 – $85,000 – in which a 17 year
old plaintiff suffered soft tissue injuries in a motor vehicle accident, which
left him with chronic back pain that interfered with his sporting hobbies and
his ability to work in construction.
·
Sekihara v. Gill, 2013 BCSC 1387 – $130,000 – in which a
29 year old plaintiff sustained injuries in a motor vehicle accident to her
neck and back along with headaches, difficulties sleeping and depression. At
the time of trial she continued to suffer from chronic back pain and
depression. As a result of her injuries, the plaintiff was no longer able to
snowboard, which was not only her passion but also something she earned money
from by engaging in sports photography, coaching, and producing snowboard
films.
·
Verge v. Chan, 2012 BCSC 876 – $125,000 – in which a 34
year old plaintiff suffered soft tissue injuries to her neck and back, a
fractured right talus, bruising to and pain in her chest, and pain in her left
shoulder, both knees, and hip as a result of a motor vehicle accident. At the
time of trial she continued to suffer from her ankle injury, sleep disturbance,
headaches, stress, anxiety, including post-traumatic stress disorder,
depression and chronic pain. Her injuries made her unable to work on the farm
and cattle raising operation that she and her partner were building at the time
of the accident.
[220] The defendants
submit that a damage award in the range of $35,000 to $40,000 is appropriate. Counsel
for the defendants referred me to, and I have considered, the following cases
as guides for determining non-pecuniary damages in this case:
·
Atkinson v. Niles, 2009 BCSC 442 – $55,000 – in which a 16
year old plaintiff suffered permanent facial scarring and an injury to his left
knee in a motor vehicle accident. He had a much increased risk of developing
progressive osteoarthritis which would eventually require knee replacement
surgery. The plaintiffs injuries detrimentally affected his chance of
fulfilling his dream of playing professional baseball, for which he had
received a scholarship to an American university.
·
Cummings v. Shanks, 2012 BCSC 1731 – $40,000 – in which a
38 year old plaintiff suffered soft-tissue injuries to his neck, shoulder and
upper back, primarily on the left side in a motor vehicle accident. At the time
of trial he had ongoing symptoms in his neck and shoulder. He was able to
return to work over a period of five months but was less capable of
participating in sporting hobbies and yard work.
·
Frech v. Langley, 2012 BCSC 1230 – $35,000 – in which a 26
year old plaintiff suffered soft tissue injuries to her neck and upper back and
pain in her right shoulder and arm and tension headaches from two motor vehicle
accidents. She was still suffering from some pain at the time of trial. She was
unable to work as a server any longer but found work as a bank teller.
·
Perry v. Ismail, 2012 BCSC 123 – $42,500 – in which a 24
year old plaintiff who was in a motor vehicle accident suffered injuries to his
neck, lower back, right shoulder and right knee, which caused headaches and
depression. At the time of trial he continued to have mild neck pain and
constant low back pain. He was off work for five months and ultimately had to
leave his job as a delivery driver for a furniture company because he was
unable to lift the furniture. He had to stop snowboarding, his preferred
recreational activity.
·
Stein v. Kline, 2012 BCSC 573 – $40,000 – in which a
plaintiff in his mid-forties suffered head, neck, back and shoulder pain from a
motor vehicle accident. At the time of trial he continued to complain of pain
and spasms in his neck, shoulders and low back which caused him to miss work
occasionally. After approximately three months the plaintiff returned to his
construction work and continued fishing and playing recreational golf and
hockey, but with some limitations.
[221] The plaintiff
was in his late twenties when the two accidents occurred. As a result of the 2008
Collision, he suffered injuries to his neck, shoulders and back which were
greatly exacerbated by the 2010 Collision. He continues to suffer from mild
pain and stiffness in his neck and shoulders, pain in his low back, and
headaches. Both accidents caused anxiety when driving and suffering from the
pain and loss of physical ability.
[222] The plaintiff
and his partner, Ms. Lee, testified that his low mood following the accidents
contributed to the temporary break in their relationship.
[223] However,
their relationship is re-established and appears unimpaired.
[224] The plaintiff
submits that these injuries have impacted his golfing abilities to such an
extent that he has lost his opportunity to achieve his dream of playing golf
professionally. He is also less capable of participating in the recreational
activities that he enjoyed before the accidents, such as hiking, and completing
household tasks.
[225] In the
circumstances of this case, I award $60,000 in non-pecuniary damages.
Past Wage Loss
[226] The plaintiff
claims past wage loss of $69,492, on the basis that but for the injuries
suffered in the 2008 Collision he would have passed the PAT in August 2009 and
would have started working as a golf professional in April 2010. Instead, he
began working as a golf professional in April 2011 and therefore argues that he
lost 12 months of employment income.
[227] The defendants
contest this claim on several grounds. First, they say that had the 2008
Collision not occurred the plaintiff would have continued with his plan to
attend Q School in the United States and the plaintiff would never have
attempted to pass the PAT.
[228] Second,
the defendants say that the plaintiff was not a skilled enough golfer before
the accidents to make passing the PAT a guaranteed outcome.
[229] The plaintiff
produced no records of his golf scores or results of participation in
sanctioned events. Indeed, it appears that he did not participate in any
tour-qualifying tournaments in the years leading up to the accidents. The only
evidence of his ability is his testimony and the testimony of his brother,
cousin, and friend.
[230] The defendants
say that the plaintiffs failure to pass the PAT can be attributed to other
factors, such as a documented right knee injury that was unrelated to either
accident, or the mistake of the organization who administered the PAT who
incorrectly determined that 157 was not a qualifying score.
[231] Finally,
the defendants argue that the plaintiffs choice to continue in a physical
performance field such as professional golf despite his injuries shows the plaintiff
was not taking reasonable steps to avoid his losses. The plaintiff acknowledged
in cross-examination that pursuing a professional golf career is risky for
anyone regardless of injuries. The defendants say it would have been more
reasonable for the plaintiff to return to his career in banking after the 2008
Collision.
[232] The plaintiffs
failure to provide any golf records or proof of participation in tournaments is
highly problematic. As the plaintiff and others testified, golf is a game of
statistics and numbers.
[233] The plaintiff
testified that he must have lost his records or his partner or mother threw
them out. I do not find the plaintiffs explanation for this failure credible,
particularly in light of the fact that his partner testified that she and his
mother knew how important his golf stuff was and would never throw anything
out.
[234] There are
many reasons that could account for the plaintiffs failure to pass the PAT and
I am not satisfied that his injuries from the 2008 Collision caused this.
[235] The plaintiff
has not met his onus of demonstrating that but for the 2008 Collision he would
have made a qualifying score on the PAT in 2009 and started his professional
golf career one year earlier.
[236] I accept
the plaintiffs evidence that he missed two weeks of work at the Point Grey
Golf and Country Club back shop following the 2010 Collision. I would have
awarded the plaintiff compensation for those lost wages, however, I have no
evidence before me on how many hours a week he was working. Without such evidence,
any award I made would be completely speculative.
[237] The plaintiffs
claim for past wage loss is dismissed.
Loss of Future Earning Capacity
[238]
A plaintiff is entitled to compensation for a loss of earning capacity
attributable to the injuries sustained. In Falati v. Smith, 2010 BCSC
465 at para. 41, affd 2011 BCCA 45, Saunders J. set out the principles which
inform the assessment of loss of earning capacity:
·
The task of a court is to assess
damages, rather than to calculate them mathematically Mulholland (Guardian
ad litem of) v Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43;
·
The standard of proof is not the
balance of probabilities; the plaintiff need only establish a real and
substantial possibility of loss, one which is not mere speculation, and
hypothetical events are to be weighed according to their relative likelihood Athey
v Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235, at para. 27;
·
Allowances must be made for the
contingencies that the assumptions upon which an award is based may prove to be
wrong Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.),
affd (1987), 49 B.C.L.R. (2d) 99 (C.A.);
·
Any assessment is to be evaluated
in view of its overall fairness and reasonableness Rosvold, at
para. 11.
[239]
The plaintiff may demonstrate the amount of loss by one of two
calculation approaches, as set out by the British Columbia Court of Appeal in Perren
v. Lalari, 2010 BCCA 140 at para. 32:
[32] 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.
[Emphasis in original.]
[240]
It is clear that if there is any future loss of capacity in this case,
it must be calculated using a loss of capital asset approach.
[241]
Perren referred to the following considerations articulated in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353, which courts are to take into
account when assessing loss of capital asset (at para. 11):
1. The plaintiff has been rendered less
capable overall from earning income from all types of employment;
2. The plaintiff is less marketable or
attractive as an employee to potential employers;
3. The plaintiff has lost the ability to
take advantage of all job opportunities which might otherwise have been open to
him, had he not been injured; and
4. The
plaintiff is less valuable to himself as a person capable of earning income in
a competitive labour market.
[242] The plaintiff
claims a future loss of capacity of $250,000 using a loss of capital asset
approach. He argues that the cumulative effect of his injuries from both
accidents have led to a loss of capacity in relation to a career in golf.
[243]
The plaintiff refers me to the following cases, described above, in
which loss of future capacity compensation was awarded in similar
circumstances:
·
Albert – $838,000
·
Pett – $225,000
·
Sekihara – $215,000
·
Verge – $225,000
·
Atkinson – $100,000
[244] The defendants
submit that the plaintiff has not demonstrated that he will suffer a pecuniary
loss in the future as a result of his injuries. They argue that the plaintiff
has succeeded in his past and current academic pursuits and has shown an
aptitude for his career in banking.
[245] The defendants
say that the plaintiff has presented no evidence that since rejoining RBC in
April 2013 that he has been unable to complete his work tasks or has needed
accommodation from his employers.
[246] The defendants
rely on the following cases in which courts found that an award of future loss
of capacity was not warranted for plaintiffs with ongoing pain or injuries from
motor vehicle accidents:
·
Perren – in which the British Columbia Court of Appeal
overturned an award for loss of future earning capacity on the basis that the
plaintiffs ongoing symptoms did not interfere with her employment in an office
setting.
·
Daitol v. Chan, 2012 BCSC 209 – in which Griffin J. concluded
that the plaintiff had not proven a loss of earning capacity despite the
plaintiffs ongoing temporomandibular joint pain and limitations in the use of
her knee because these injuries did not interfere with her sedentary job as an
office assistant.
·
Mayenburg v. Lu, 2009 BCSC 1308 – in which Myers J. found
that the plaintiff had not proven a loss of earning capacity despite the
plaintiffs ongoing low back pain because it appeared the plaintiff would be
able to gain employment as an accountant, which she could perform with minimal
discomfort.
[247] There is
insufficient evidence to support the plaintiffs claim of loss of future
earning capacity. There was no functional capacity assessment or other expert
evidence to that effect. Neither Dr. Yu nor Dr. Shuckett reported that the plaintiff
will be unable to work successfully in an office setting. In fact, Dr. Shuckett
stated that she did not find the plaintiff to be disabled.
[248] The plaintiff
has employment in the banking industry and appears to have been quite
successful there. There is no indication that he will have a reduced earning
capacity in this field as a result of his injuries.
[249] Although
the plaintiffs injuries have contributed to other factors that have foreclosed
a career in professional golf, the evidence does not demonstrate that but for
the accidents there was a real and substantial possibility that the plaintiff
would have had a successful and lucrative career as an elite golf professional.
[250] I accept
that the plaintiff continues to suffer reduced mobility and some pain from his
injuries and that this impacts his quality of life. He has been compensated for
that in his non-pecuniary damages award. However, there is insufficient
evidence to demonstrate that this pain will interfere with his earning
capacity. The claim for loss of future earning capacity is dismissed.
[251] As a
result of my decision, although I have reviewed it (actually a report with
three separate components), I need not consider the expert report of Darren
Benning, economist, since his analysis is premised on a finding of annual
losses over the plaintiffs working lifetime.
Cost of Future Care
[252] The
plaintiff is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore him to his pre-accident condition insofar as
that is possible. When full restoration cannot be achieved, the court must
strive to assure full compensation through the provision of adequate future
care: Simmavong v. Haddock, 2012 BCSC 473 at para. 124.
[253]
There must be a medical justification for claims for cost of future care
and the claims must be reasonable: Milina v. Bartsch, [1985] B.C.J. No.
2762 at para. 199 (S.C.), affd [1987] B.C.J. No. 1833 (C.A.).
[254] An award
must be moderate and fair to both parties: Andrews v. Grand & Toy
(Alta.) Ltd., [1978] 2 S.C.R. 229 at 230.
[255] The plaintiff
claims a total of $163,800 for the cost of future care:
Gym membership every year to the
age of 65 – $11,200
Yoga membership every year to the
age of 65 – $41,600
Physiotherapy, analgesics and pain medications
– $15,000
Housekeeping – 2 hours per month to
the age of 65 – $96,000
[256] The defendants
argue that the plaintiff is not entitled to any future care costs. They say
that the plaintiffs claim that he is unable to complete housekeeping tasks is
not believable in the face of his testimony that he completes 5 km jogs, swims,
plays tennis and golf, completed post-secondary courses while working full time
and backpacked through Southeast Asia shortly after the 2010 Collision.
[257] I accept
the defendants position on the claim for housekeeping. I do not accept that
the plaintiff is unable to perform housekeeping tasks as his activity level is
inconsistent with his alleged inability to work in the house.
[258] The defendants
also point out that neither Dr. Yu nor Dr. Shuckett made any comment on whether
a gym membership, yoga membership or physiotherapy would be recommended or
indicated that he required any assistance with housekeeping. Dr. Yu stated the plaintiff
could perform occasional housekeeping tasks.
[259] I decline
to award any amount for a gym membership or yoga membership given that the plaintiff
has not demonstrated a need for either and also has in-house access to yoga and
fitness instruction from his partner.
[260] I have not
been provided with much evidence from counsel for the plaintiff to support what
may be a reasonable claim at least for medications and physiotherapy.
[261] At the
same time, from the nature of the injuries suffered by the plaintiff, it seems
obvious to me that he would likely benefit from and need some physiotherapy,
and analgesics and pain medications in the near future. It is reasonable to
award some amount for these items.
[262] It is my
view that an amount of $3,000 per year for five years for a total of $15,000
for physiotherapy, pain medications and analgesics is reasonable and necessary given
the plaintiffs need to control the discomfort he suffers occasionally so that
he is able to continue to work and progress in his position with RBC.
[263] Beyond a
period of five years, the plaintiffs need for these services and medications
becomes speculative.
[264] I leave it
to counsel to calculate and agree on any present value discount on this award.
Special Damages
[265] The plaintiff
claims a total of $6,648.17 in special damages:
Physiotherapy: $1,695
Parking: $86
Canadian Magnetic Imaging invoice:
$4,022.60
PGA dues for 2012: $844.57
[266] Plaintiffs
counsel provides no argument in support of, and I see no basis for compensating
the plaintiff for his PGA dues for 2012.
[267] The claims
for the physiotherapy, parking and magnetic imaging are expenses incurred as a
result of the injuries and are allowed, for a total of $5,803.60 in special
damages.
Conclusion
[268] The plaintiff
is entitled to an award as follows:
Non-Pecuniary Damages: $60,000
2008 Collision: $18,000
2010 Collision: $42,000 – 70% = $12,600
Past Wage Loss: $0
Loss of Earning Capacity: $0
Cost of Future Care: $15,000
2008 Collision: $4,500
2010 Collision: $10,500 – 70% = $3,150
Special Damages: $5,803.60
2008 Collision: $1,741.08
2010 Collision: $4,062.52 – 70% = $1,218.76
Costs
[269]
Costs follow the event. The parties are at liberty to make an
application to speak to costs if necessary.
L.D. Russell J.
_________________________________________
The
Honourable Madam Justice Loryl D. Russell