IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140723

Docket: M104825

Registry:
Vancouver

Between:

Balwinder Sunner

Plaintiff

And

Harvinder K. Rana
and Avtar S. Rana

Defendants

Before:
The Honourable Mr. Justice Leask

Reasons for Judgment

Introduction

[1]            
This case involved a motor vehicle accident which occurred on October 9,
2008. The plaintiff was a taxi driver driving his taxi. He was stopped at a red
light at the corner of Willingdon and Halifax in Burnaby. His vehicle was
rear-ended by a vehicle driven by one of the defendants and owned by the other.
Liability for the collision was admitted. The trial involved the assessment of
damages for the injuries suffered by the plaintiff in the motor vehicle
accident.

Facts

[2]            
The plaintiff was born, in India, on March 18, 1976. At the time of the
accident he was 32 and he is presently 38 years old. He is married with two
children. He came to Canada with his extended family in 1995. From the time he
arrived in the country he was industrious and hard working. He took various
unskilled jobs, often working for two or more employers. Within two years he began
driving taxis and then purchased a taxi and taxi license through Bonny’s taxi.
He and one of his younger brothers, Jaswinder, each owned a one-half interest
in the taxi. He regularly drove one shift and his brother drove part-time on
the other shift. In addition to driving taxi the plaintiff worked part time at
other occupations including working in a butcher shop, doing site clean-up on
construction sites and various janitorial jobs. At the time of the accident he
had been employed as a janitor for OMNI for several years.

[3]            
The plaintiff was also actively involved in the life of his extended
family. After arriving in Canada the family initially lived together – parents,
siblings and their spouses, and children as they arrived. By the time of the
accident the plaintiff was living in a separate home, owned and occupied by
himself and his brother Jaswinder. As the oldest brother, his income was used
to help support the whole family and to enable his two younger brothers to
pursue additional educational and vocational goals. Jaswinder became a licensed
heavy duty mechanic and then worked his way up the seniority ladder in the
longshoreman’s union. The youngest brother, Sukhwinder, went furthest in
post-secondary education and developed technical skills which allowed him to
pursue a career with Microsoft in Seattle.

[4]            
The plaintiff took an active role in household affairs including
barbecuing, lawn cutting and gardening. He was very involved with the children
of the extended family. Before and after his own children were born, he spent
considerable time with his nieces and nephews, playing with them at home,
taking his nieces to games and taking all the children to the PNE. On family
trips he usually drove the vehicle and was a leader in the family in social
activities and in family projects, such as moving houses.

[5]            
Lastly, testimony from witnesses who knew the plaintiff prior to the
collision reveals he was a motivated, well disposed, and happy individual. For
example:

Mrs. Harpreet Sunner had the
opportunity to observe the plaintiff as they lived together at the same house
and testified that the plaintiff was a very friendly, outgoing, and active man.
He was happy and never known to be frustrated.

Mrs. Kuldeep Sunner gave evidence
that before the MVA, the plaintiff was an active and hardworking guy who
participated a lot around the house. He helped with household chores such as
vacuuming, mowing the lawn, and working in the garden growing peppers and other
vegetables.

Mr. Sanjeev Sharma described the plaintiff
as a good natured man who was very happy and who often joked around with him
and his family. He would see him 4-5 times a week as they drove taxi together
at the airport and watched sporting events together at Mr. Sharma’s home.

Mr. Sukhwinder Sunner observed the plaintiff’s
mood to be happy and social. He used to be happy and understanding. He used to
go to children’s games, and birthday parties and used to invite people over and
cook for them on his day off. He was the more social one in a group and would
be the first to ask how everyone was doing.

[6]            
The plaintiff’s pre-accident general health was good. He visited a new
family physician, Dr. Toor, on September 30, 2008 for a general check-up. There
were no noteworthy problems including “no back pain”. Some years prior to the
accident he made complaints to his doctors of lower back pain. On the evidence
before me I am satisfied that those episodes were properly diagnosed as sacroiliitis
and are not causally related to his post-accident symptoms.

[7]            
Following the accident, the plaintiff reported neck pain and lower back
pain. The neck pain resolved within approximately one month and was not a
significant factor adversely affecting the plaintiff’s health. The lower back
pain is a completely different story.

[8]            
At first, both the plaintiff and his general practitioner approached his
lower back pain as though it was only slightly more serious than his neck pain.
It was quite clear from the evidence that both patient and doctor expected that
the back pain would resolve within 6-9 months. The plaintiff, on the advice of
his doctor, attended physiotherapy and saw his general practitioner 5 times
between the date of the accident and December 3, 2008. As time passed and the
lower back pain continued the general practitioner ordered the first MRI –
conducted on November 16, 2009. He had his first appointment with a specialist,
Dr. Yu, on January 14, 2011. With the benefit of the first MRI and his
examination, Dr. Yu believed that the plaintiff had “a significant extruded
L5/S1 disc.” At that point in time, it seemed realistic to consider epidural
steroid injections or discectomy as treatment options. The plaintiff was given
his first epidural steroid injection on September 6, 2011. Initially that
injection gave him some relief from his pain symptoms. After two weeks he
returned to his GP with complaints of continuing back pain. By October 28, 2011
the family doctor recorded; “he has been better with the pain in the back to
begin with, but now feels the pain is back.” In the first half of 2012 the
plaintiff saw his family doctor on a number of occasions complaining of lower
back pain. In late June, while working in the Smokey Point gas station in
Arlington, Washington the plaintiff experienced a very severe pain episode
necessitating a visit to a local Washington chiropractor. One of his employees,
Pauline Harris, gave very dramatic evidence of seeing the plaintiff in
excruciating and disabling pain. As a result of reporting this episode to his
family physician, he was referred for a second (private) MRI. The family
physician again referred the plaintiff to Dr. Yu for urgent assessment. On
October 30, 2012 the plaintiff experienced another very significant pain
episode resulting in his being sent to St. Paul’s emergency ward. The emergency
physician ordered a third MRI and referred the plaintiff to the Lion’s Gate
Spinal Clinic to see the “first available physician”. On November 21, 2012 the
plaintiff saw Dr. Yu, the specialist, who recommended a second epidural
injection at L4/5 “as the previous injection at L5/S1 did not seem to relieve
his back and leg pain.” On May 16, 2013 the plaintiff (based on the St. Paul’s
Hospital referral) was able to see Dr. Janicki at the Lion’s Gate Spinal Clinic
who referred him for an L4 selective nerve block. On July 31, 2013 the
injection was administered at Vancouver General Hospital. At trial the
plaintiff testified that this injection significantly reduced the pain in his
left leg but left the leg feeling weaker. His back pain remained. Based on this
report, his family physician made another referral for the plaintiff to see Dr.
Janicki for urgent assessment. This referral was made on September 4, 2013. At
the time the plaintiff gave evidence at trial in January 2014 he was still
waiting to see Dr. Janicki. Dr. Yu’s view was that the plaintiff’s back problem
was too serious for surgery to be a recommended treatment option. At trial, the
plaintiff gave evidence of continued chronic back pain.

[9]            
The defence expert witness Dr. Donald Werry, was of the opinion that
“given Mr. Sunner’s multi-level degenerative disc changes, it is more likely
than not that he would at some point experience low back pain in the absence of
his accident.” Dr. Yu was of the opinion that the condition of the plaintiff’s
spine, as seen on the MRI’s, was the result of the MVA. Having reviewed all of
the medical evidence, including viewing specially prepared reproductions of the
MRI scans, and considering the timing of the onset of the lower back pain and
the seriousness of the injuries shown on the MRI, I find as a fact that the
plaintiff’s injuries and resultant pain are the the result of the motor vehicle
accident and the defendants are liable to compensate him.

[10]        
Turning to the effects on the plaintiff’s life of his injuries, he did
not attempt to return to work as a janitor for Omni. He did make some attempts
to return to taxi driving. What he discovered each time he tried was that his
low back pain prevented him from being able to tolerate the lengthly shifts in
the drivers seat; nor was he able to manage the lifting and carrying
passenger’s luggage that is a required function of a taxi driver.

[11]        
Consequently, the plaintiff has made two serious attempts to find
alternative means of earning a living and supporting his family.

[12]        
On August 26, 2009, the plaintiff entered into an agreement with his
business partner Jaskarn Sandhu to purchase the "Sunset Corner Mart"
in Spiro, Oklahoma. Sunset Mart was a corner store gas station. The plaintiff
and Jaskarn Sandhu incorporated Farid Enterprises Inc. ("Farid") in
Oklahoma as the entity to carry out their business plan. The plaintiff obtained
a visa to work in the United States issued June 4, 2010.

[13]        
For 2010, the plaintiff had employment income from Sunset Mart of $15,158.00
shown on his US tax return, as well as some limited taxi driving, net reported
income of $746.67 shown on his Canadian tax return. For 2011, the plaintiff
earned wages from Farid of $2,605.00 as shown on his US tax return.

[14]        
The purchase price for Sunset Mart was $1,000,025.00, with a down
payment and vendor take back financing. The plaintiff raised the funds for his
portion of the down payment by a line of credit secured against the family home
owned by himself and his brother Jaswinder. Success did not materialize for the
plaintiff and Mr. Sandhu, and on or about April 25, 2011, they sold Sunset Mart
back to the vendors from whom they had bought, for the same purchase price to
be paid back (including cancellation of vendor financing) and with their down
payment to be repaid over time.

[15]        
In 2011, the plaintiff continued to search for an alternative business
opportunity and did some taxi driving on an interim basis. His net income of
$9,221.02 was shown on his Canadian tax return.

[16]        
Later in 2011, the plaintiff purchased together with his brothers
Jaswinder Sunner and Sukhwinder Sunner, the Smokey Point gas station on Smokey
Point Road, Arlington, Washington ("Smokey Point"). On or about
September 11, 2011, the plaintiff and his two brothers formed JBS Gas Services
LLC ("JBS") as the entity to carry out their business plan. On
September 14, 2011, JBS Gas Services LLC completed a purchase of the Smokey
Point Gas Station. The adjusted purchase price was $533,117.00.

[17]        
The previous owners of the Smokey Point Gas
Station had failed in business and the property was being sold out of
foreclosure by East West Bank. At the time JBS took over the Smokey Point Gas
Station, it was under lock and key, surrounded by fence; it had been closed for
business for 2.5 years and inside the property, everything was demolished;
there were rats running around.

[18]        
Because it was in foreclosure and because of the
state of the property, financing was not available. The plaintiff and his
brothers had to raise the purchase price through their own financing. Another
mortgage was put on their parents’ house on East 62 Avenue, and money was
borrowed from family and friends. After possession of the property was taken
JBS borrowed $200,000 from Peoples Bank to undertake renovations (new pumps,
coolers, etc.)

[19]        
The gas station started up in April, 2012. The plaintiff
worked as the manager, living at the property except for when he was able to
return to Vancouver to visit his family.

[20]        
In 2012, the plaintiff earned wages from JBS of
$6,300.00 as shown on his US Tax Return. For 2013, the plaintiff had, as
recorded in the records of JBS payroll report, total gross wages of $13,845.00.

[21]        
For 2012, the JBS Tax Return (US Return of
Partnership Income) reported an ordinary business loss of $47,908.00. For nine
months ending November 30, 2013, the monthly income statement for JBS indicates
a net income of $27,277.00

[22]        
The plaintiff and his brothers, through JBS,
continued to pursue the Smokey Gas Station business. With more borrowings,
further renovations were undertaken over time (eg the car wash).

[23]        
At one level the Arlington gas station was
successful. The station was selling large volumes of gasoline. However, the
gasoline sales were not profitable because they were selling gasoline at prices
below their cost price. The reason for this was competition from a nearby First
Nation. Their cost of gasoline was significantly lower than the plaintiff’s
cost because their First Nations’ status exempted them from paying certain
gasoline taxes. There is no obvious solution to the competitive threat. I have
great concerns that the plaintiff’s sincere effort to mitigate his damages
through investing family funds, borrowing from friends and a bank and
relocating himself away from his beloved wife and children may be doomed to
failure.

[24]        
The continuing effect on the plaintiff of the
injury he suffered in the motor vehicle accident has been significant. His own
evidence and the evidence of his family and a longtime friend all confirm that
he is not the “same man” that he used to be. He is not as happy, not as able,
or willing, to help other family members and friends; his disposition is worse.
These psychological effects are the result of living with chronic pain combined
with the stress of attempting to find a satisfactory means of supporting his
family. I am satisfied that these psychological effects are just as much the
result of the injuries suffered in the motor vehicle accident as the pain in
his lower back.

Non Pecuniary Damages

[25]        
There is no question that the injuries suffered
in the MVA have had a serious impact on the plaintiff. Before the accident he
was hard working, normally with at least two jobs. He was very involved with
his extended family, including not only his own children but his nephews and
nieces. He did yard work and enjoyed barbecuing for the whole family. I agree
with his counsel’s submissions that he was “a motivated, well disposed, and
happy individual.”

[26]        
Counsel for the defence submits that he
plaintiff, pre-accident, was not particularly active socially or recreationally
and that the effect of the accident on the plaintiff’s life and lifestyle and
day to day activities are not significant.

[27]        
On the basis of those submissions defence
counsel suggests that the proper range for the non-pecuniary damages is
$50-$75,000. I do not agree with counsel’s minimization of the effects of the
injury on this plaintiff and I do not agree with the range he suggests for a
non-pecuniary award.

[28]        
Plaintiff’s counsel submits that the
non-pecuniary award should be $125,000. In my view, considering the cases cited
by both counsel, I found Freeland-Clayton v. Murphy, (1997) Campbell
River Registry No. S1114 to be closest on its facts to this plaintiff’s
situation. In that case, the plaintiff was awarded $110,000. I would have
awarded that same amount to this plaintiff except that I was persuaded by
defence counsel’s submissions with respect to failure of the plaintiff to
mitigate his losses. Defence counsel made two separate submissions concerning
mitigation and the plaintiff’s failure to follow medical advice. His two areas
of concern related to consumption of alcohol and failure to follow an organized
program of exercise to reduce the pain and debilitating effect of his injury. I
do not share counsel’s concern about alcohol consumption but I agree with the
submission that a more focused exercise program would have benefited the
plaintiff. On this basis, I am reducing the non-pecuniary award by $10,000 and
awarding the plaintiff $100,000 on this head of damages.

Past Wage Loss

[29]        
Under this head of damages the plaintiff relies
on the evidence of his economist Mr. Teasley. At trial, accepting some of the
defence expert’s critique of his report, he revised his estimate of past income
loss to $91,026. Because of the delay between when the evidence was given (January
2014) and the date of final submission (June 30, 2014) plaintiff’s counsel adds
a further $7,500 for a claim of $98,500.

[30]        
Counsel for the defence is critical of the
evidentiary basis for the loss of income claim and calculated loss of income on
a different basis. He argues that “from 2009-2012 the plaintiff should have
earned pre-tax income on a net basis from the taxi operation of something
similar to what he was able to earn on average for the period 2004-2008 … That
amount is $18,000”. On this basis he calculates the plaintiff’s pre-tax loss at
$80,100.

[31]        
I will have more to say about defence counsel’s
calculation of potential lease income from the taxi in my analysis of future
loss. Suffice it to say for this head of damage I prefer the economist’s evidence
over defence counsel’s submission. Accepting that all these calculations are
estimates, I award $95,000 for pre-trial income loss.

Loss of Capacity

[32]        
I find as a fact that the injuries suffered in
the MVA mean that the plaintiff cannot return to work as a taxi driver nor as a
light/duty janitor, the two occupations he was involved in prior to the MVA. I
base this finding on the evidence of Dr. Yu, Dr. Caillier and the occupational
therapist Mr. Padvaiskas. I also rely on Dr. Magrega’s opinion: “Losing access
to physical prowess without strong language skills and formal education by
Canadian standards represents formidable barriers to employability.”

[33]        
As to the legal principles to apply in assessing
the proper award, I rely upon Brown v. Golaiy, 26 B.C.L.R. (3d) 353, Rosvold
v. Dunlop, 2001 BCCA 1, Harlow v. Thompson, 1999 BCCA 271 and Westbroek
v. Brizuela, 2012 BCSC 1955.

[34]        
In his submissions counsel for the plaintiff
relied in part on calculations by the economist. Mr. Teasley. Using a present
value earnings multiplier of $23,352 (survival adjusted only) for every $1,000
of earnings lost per year, counsel point out that an assessment based on a loss
of income of $10,000 per year results in a loss of $233,520. Mr. Teasley also
prepared on economist’s estimate of future loss using the same approach as when
estimating past losses (comparing pre-MVA v. post-MVA income) resulting in a
contingency adjusted present value amount of approximately $322,000 +/-
$10,000. If one looked only at the loss of income for the plaintiff’s pre-MVA
janitor work using Mr. Teasley’s multiplier would produce a present value of
lost future income of $291,000 ($12,500 x $23,352). An important factor
affecting the assessment in this case is the negative contingency that the
plaintiff’s current Washington gas station business might fail. In Rosvold,
the B.C. Court of Appeal increased a trial award of $125,000 to $300,000 to
account for the possibility that the business started by the plaintiff in that
case might fail. Counsel for the plaintiff submitted that the proper award
under this heading should be $400,000.

[35]        
Counsel for the defendant submitted that the
plaintiff should pay himself between $2,000 and $3,000 per month from the
Washington State service station business. He also submitted that the plaintiff
should earn $8,000 net per annum from leasing his ½ interest in the taxi
jointly owned with his brother. On that basis the plaintiff would be earning
between $32,000 – $44,000 per year and would have no future income loss. Counsel
did acknowledge that “the plaintiff may still have a loss of capacity.” He
suggested an award of $50,000 to acknowledge that loss.

[36]        
Dealing first with the taxi business, the
plaintiff’s brother, who owns the other ½ interest in the taxi, has not driven
it for years. As a passive owner his net income was less than $1,000 per year.
I accept that the brother’s actual income is a better reflection of the
plaintiff’s potential future income than defence counsel’s theoretical
calculations. As to the gas stations business, it can certainly not afford to
pay the plaintiff a larger salary in its present financial state. Considering
the competition from the Washington State First Nation which obtains gasoline
free of state taxes, I believe the negative possibility that the plaintiff’s
business will fail is considerably more likely than that the business will
prosper and be able to repay the loans from the bank, family & friends plus
increase the plaintiff’s salary.

[37]        
In the end, I am satisfied that the plaintiff’s
loss of future income earning capacity should be valued at $250,000 with a
negative contingency, reflecting the potential that the business will fail, of
an additional $100,000 for a total award under this heading of $350,000.

Cost of Future Care

[38]        
The plaintiff submits that a reasonable award
for cost of future care would be $36,000, which is 25% of the higher amount
estimated by the plaintiff’s economist, Mr. Teasley.

[39]        
The defendant’s position is that “realistically”
the plaintiff will not follow the recommendations for future care. The
defendant suggests slightly less than $4,000 for an active rehabilitation
program and kinesiology for 3 years.

[40]        
I am satisfied that the plaintiff would make
good use of an award of $20,000 for cost of future care. Like counsel for the
defendants’ I would emphasize the benefits to the plaintiff of a structured
exercise program and kinesiology.

Loss of Future Housekeeping Capacity

[41]        
The plaintiff seeks $25,000 under this heading;
the defendant chose not to make a written submission; based on the themes
developed in the defendant’s final submissions, I am confident that the
defendant’s position is that there should be no award under this heading.

[42]        
I accept the evidence given by members of the
plaintiff’s family that, pre-accident, he was actively involved in household
chores such as vacuuming, lawn mowing and gardening. I also accept the evidence
given to the Court that post-accident the plaintiff was unable to continue with
his pre-accident involvement in household tasks.

[43]        
My conclusion is that the plaintiff is entitled
to an award of $10,000 under this heading.

Special Damages

[44]        
The defendants take issue with certain of the
claimed special damages:

1.     #4 Acupuncture

2.     #6 Lipitor – Cholesterol medication

3.     #9 private MRI

4.     #13 Therapeutic massager

5.     #16 Orbitz flights

6.    
#19 Unregistered Massage therapist

[45]        
In final submissions, plaintiff’s counsel agreed
with the defence submission on item #6 (Lipitor) reducing plaintiff’s claim for
special damages from $2,057.29 to $2,001.80. I agree with the defendants’ submissions
on item #16 (Orbitz flights). Otherwise all claimed special damages are awarded
to the plaintiff for a total of $1,932.10.

Conclusion

[46]        
In summary, the plaintiff is awarded:

“Leask, J.”