IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140819

Docket: M122768

Registry:
Vancouver

Between:

Rong Ji Zhang

Plaintiff

And

Darre Dawn Graham
and Toyota Credit Canada Inc.

Defendants

Before:
The Honourable Madam Justice B.J. Brown

Reasons for Judgment

[1]            
This action arises from a motor vehicle accident.  Mr. Zhang seeks
damages for non-pecuniary loss, past income loss, loss of earning capacity,
costs of future care and special damages.

BACKGROUND FACTS

[2]            
Mr. Zhang was born in 1940 in China.  Before his retirement, he was a
University math professor.  He is married to Mei San Zhang.  Together, they have
a son, who immigrated to Canada.  Their grandson, Brian, was born in Canada in
2003.

[3]            
In 2005, Mr. Zhang and his wife came to Canada for a year to help look
after Brian.  In 2006 they returned to China. They immigrated to Canada in
2007, intending to help to care for Brian.

[4]            
As well as looking after Brian, Mr. Zhang also sought paid employment. 
Eventually, he found a position as a dishwasher at a local restaurant, a
position which he enjoyed.

[5]            
On December 22, 2009 he slipped and fell and broke his right arm,
requiring surgery.  By May 31, 2010 Mr. Zhang had substantially recovered,
although he had not returned to work.

[6]            
The motor vehicle accident occurred on November 3, 2010.  Mr. Zhang
was a pedestrian at the intersection of 57^th Avenue and Cambie Street
in Vancouver.  He was struck by a vehicle which was turning the corner.  The
vehicle struck Mr. Zhang on his right side and he fell to his left side.  He
suffered a right lateral tibial plateau fracture, a sprained right knee,
abrasions and contusions to his leg and left elbow, contusions to his left
shoulder and soft tissue injuries to the neck, upper back and lower back,
tinnitus and numbness on the left side of his head.

[7]            
Mr. Zhang has not been able to return to work since the accident and has
limited his activities, compared with those before the accident.

POSITIONS OF THE PARTIES

[8]            
The plaintiff says that the motor vehicle accident dramatically affected
the pre-existing osteoarthritis in his knees.  He says that before the accident
he had experienced some discomfort in each of his knees, particularly when
climbing stairs, but was essentially unlimited in his activities.  His knees
were not causing him any significant problems.  He says that since the motor
vehicle accident, his right knee has deteriorated dramatically and he is now
severely limited by his ongoing right knee complaint.

[9]            
He says that he also suffers from limitations in his left shoulder due
to the motor vehicle accident and that he has suffered an injury to his head
which has left him with tinnitus and headaches.  He says that he is now
forgetful, has difficulty hearing and takes less pleasure in life.

[10]        
The defence says that Mr. Zhang had pre-existing osteoarthritis in both
of his knees and that his current knee complaints are the result of the ongoing
natural progression of that disease.  The defence says that the motor vehicle
accident exacerbated those complaints for a period of time, but the effect of
the accident has long since resolved.  The defence says that ongoing complaints
in Mr. Zhang’s left shoulder are also due to the natural aging/osteoarthritis
progression and not due to the motor vehicle accident.  The defence points to
evidence that Mr. Zhang did not pursue physiotherapy for a period of over two
years from the summer of 2011 until 2013 as evidence that the shoulder injuries
which are related to the accident were resolved less than a year following the
accident.

[11]        
The defence acknowledges that Mr. Zhang suffered cuts, bruises and
abrasions as well as soft tissue injuries that healed.  The defence
acknowledges that the motor vehicle accident caused fractures of the tibia and
fibula as well as hearing loss, tinnitus and vestibular mismatch, an injury which
results in balance issues.

THE NATURE AND EXTENT OF MR. ZHANG’S INJURIES

[12]        
Before the motor vehicle accident, Mr. Zhang was quite fit and active.  Each
weekday he arrived at his son’s house at 7:00 a.m.  He made breakfast for his
son and grandson.  He took Brian to school and then cooked a large meal for the
entire family.  In the late afternoon Mrs. Zhang would look after Brian while
Mr. Zhang went to work a five hour shift as a dishwasher at a nearby
restaurant.

[13]        
Mr. Zhang was not able to work between December 2009 and June 2010 while
his arm recovered.  The dishwashing position had been filled by the time he was
able to return.  I accept his evidence that he enjoyed his work as a dishwasher
and would have returned to that job.  He was not able to find new employment
before the motor vehicle accident.

[14]        
Mr. Zhang had complained of knee pain to his family doctor before the
accident.  On September 1, 2010, his doctor noted: ½ year history of bilateral
knee pain with squat, complaints of weakness and pain into back of left knee.  The
doctor found crepitus in the right knee and grinding to the patellar on
compression.  Mr. Zhang was sent for x-rays.  The radiologist found
changes consistent with moderate degenerative osteoarthritis.

[15]        
I accept Mr. Zhang’s evidence that this did not prevent him from working
or from enjoying his normal activities such as walking.  He noticed the knee
complaints with specific activities such as stairs and squatting.  He did not
find his knee problems disabling.

[16]        
Mr. Zhang was struck by the car on the morning of November 3, 2010.  Mr. Zhang’s
right leg was placed in a brace and he walked with a crutch for several weeks.  The
right knee improved, but the recovery plateaued.  Mr. Zhang continued to
complain of right knee pain.  On May 30, 2011 an MRI was done of his knee which
showed a small tear of the medial meniscus and advanced tricompartmental
osteoarthritis.  On May 4, 2012 he had surgery for the meniscal tear.  The
surgery helped with some of his right knee complaints, but he continued to have
pain in his right knee and limitations on his activities.

[17]        
Many of the injuries are not in dispute: soft tissue injuries including cuts,
bruises and abrasions; fracture of fibula and tibia; injury to left shoulder;
worsening of pre-existing osteoarthritis of the knees; hearing loss, tinnitus
and vestibular injury resulting in balance issues.

[18]        
The parties are not agreed as to the extent of Mr. Zhang’s osteoarthritis
pre-accident and the effect of his injuries on this condition; the diagnosis of
mild traumatic brain injury; and the cause of Mr. Zhang’s ongoing shoulder and
back complaints.

[19]        
I accept the opinions of Drs. Zakardas, Parhar and Kan that Mr. Zhang had
osteoarthritis in his knees pre-motor vehicle accident with limited symptoms
and no disability.  He was able to work at a strenuous job and was able to walk
significant distances.  His right knee condition was significantly worsened by
the accident.  The accident caused the meniscal tear, a tibial plateau fracture
and a significant worsening of his knee complaints.  He has post-traumatic
osteoarthritis.  His right knee complaints dramatically worsened following the
accident and have remained so.  By contrast, his left knee was not injured in
the motor vehicle accident and has not deteriorated.

[20]        
The defence argues that the accident aggravated Mr. Zhang’s
osteoarthritis in his right knee for a period of time but that his current
condition is due to the pre-existing osteoarthritis and not the accident.

[21]        
In my view, this argument is not consistent with Mr. Zhang’s medical and
work history.  Before the accident, Mr. Zhang had osteoarthritis in both knees
but had no limitation in his activities.  Mr. Zhang’s right knee was struck by
the vehicle and he suffered a depressed tibial plateau fracture and a fracture
of the proximal fibula.  As Dr. Zarkadas opined, the accident caused these
fractures in the setting of an arthritic knee.  Mr. Zhang’s X-rays of September
2010 showed moderate degenerative arthritis.  X-rays and MRI in hospital
immediately following the accident did not show any worsening of the
osteoarthritis.  In May 2011, just seven months later, the CT scan on Mr.
Zhang’s right knee showed advanced tricompartmental osteoarthritis and a tear
in the meniscus.  It also showed bone marrow edema at the site of the fracture
of the fibula.

[22]        
In cross-examination, Dr. Horlick acknowledged that Mr. Zhang’s ongoing
disability arises (in part) from the accident; that the ongoing symptoms in his
knee are, in part, related to the accident.  The accident aggravated his
pre-existing osteoarthritis.

[23]        
I am satisfied that the accident has contributed to Mr. Zhang’s ongoing
right knee complaints and his advanced osteoarthritis in that knee.

[24]        
I am also satisfied that the accident is contributing to Mr. Zhang’s
ongoing left shoulder complaints.  As his family doctor, Dr. Kan reports, Mr.
Zhang complained of left shoulder pain following the accident.  He had
physiotherapy for the shoulder and reported significant improvement by August
2011.  However, he continues to have intermittent pain and restriction of
motion in his left shoulder.

[25]        
Although Dr. Horlick was of the opinion that the left shoulder complaints
resolved after the accident and that his current complaints did not become
clinically significant until two years after the accident, this is not
consistent with the records of Dr. Kan, or with Dr. Kan’s opinion.  Dr. Kan’s
notes show consistent ongoing left shoulder complaints and restriction in movement
until February 22, 2012, when he notes “Lt shoulder about the same.  Still has
restricted ROM.  Pain with abduction.”  On June 24, 2013, Dr. Kan records “Lt
shoulder pain for 2 months.  No injury” (which Dr. Kan said meant no recent
injury).  I accept Dr. Kan’s evidence that Mr. Zhang has ongoing intermittent
pain and restriction in his shoulder.  I also accept Dr. Zarkadas’ opinion
that the accident is contributing to these ongoing complaints.

[26]        
With respect to Mr. Zhang’s headaches, depression, confusion and
decreased energy, I accept Mr. Zhang’s evidence that he did not discuss many of
these complaints with Dr. Kan because Mr. Zhang thought that they were
incidents of aging.  However, both Mr. and Mrs. Zhang described a significant
change in Mr. Zhang following the accident.  He fatigues easily, has a
short temper, does not participate and has lost interest in activities.  Mrs.
Zhang describes how she must help Mr. Zhang now when they go out, which is very
different from their roles before the accident.  Dr. Parhar is of the view that
Mr. Zhang has a mild traumatic brain injury as a result of a blow to his head
in the accident, and that this has caused the residual problems of decreased
memory, decreased concentration, depressed mood, decreased energy and
headaches.  Regardless of whether these are the result of a mild traumatic
brain injury, I am satisfied that these complaints are ongoing and are due to
the motor vehicle accident.  I also accept Dr. Parhar’s opinion that, given the
amount of time that has past, these complaints may be long-lasting.

ASSESSMENT OF DAMAGES

[27]        
The plaintiff seeks damages of:

[28]        
The defendants say that damages should be assessed as:

(a) Non-pecuniary damages

[29]        
As set out above, the accident has had a dramatic effect on Mr. Zhang,
leaving him with significant problems, particularly with respect to his right
knee.  He will likely require knee replacement surgery to his right knee.  He
also suffers from tinnitus, hearing loss and a vestibular disorder.  The
accident has affected all aspects of his life and left him irritable, depressed,
with memory difficulties and has reduced his mental acuity.

[30]        
Mr. Zhang had a pre-existing degenerative condition in both knees.  This
has been described as a crumbling skull scenario.  In Athey v. Leonati,
[1996] 3 S.C.R. 458, the court said:

35 The so-called
“crumbling skull” rule simply recognizes that the pre-existing condition was
inherent in the plaintiff’s “original position”. The defendant need not put the
plaintiff in a position better than his or her original position. The
defendant is liable for the injuries caused, even if they are extreme, but need
not compensate the plaintiff for any debilitating effects of the pre-existing
condition which the plaintiff would have experienced anyway. The defendant is
liable for the additional damage but not the pre-existing damage:
Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages
for Personal Injuries and Death (9th ed. 1993), at pp. 39-40. Likewise, if
there is a measurable risk that the pre-existing condition would have
detrimentally affected the plaintiff in the future, regardless of the
defendant’s negligence, then this can be taken into account in reducing the
overall award: Graham v. Rourke, supra; Malec v. J. C. Hutton
Proprietary Ltd., supra; Cooper-Stephenson, supra, at pp.
851-852. This is consistent with the general rule that the plaintiff must be
returned to the position he would have been in, with all of its attendant risks
and shortcomings, and not a better position.

[Emphasis in original.]

[31]        
I have considered the authorities provided to me by the parties and the
range of damages awarded in those cases.  It is difficult to compare one
person’s injuries with another’s.  However, considering the range of damages
awarded, in my view, an award of $90,000 is appropriate for non-pecuniary
damages.

(b) Loss of housekeeping capacity

[32]        
Mr. Zhang claims loss of housekeeping capacity as a past loss.  He says
that to date Mrs. Zhang has been providing all of the care to replace his loss
of housekeeping capacity.  He says that his loss of capacity far exceeds four
hours per day.  He says that balancing his loss of capacity and eventual need
for more personal attendant care, the reasonable value of this past loss is $75,000
(4hours/day, 5 days/week).

[33]        
This estimate of past loss of housekeeping capacity includes the care
that Mr. Zhang provided to his son’s family.  Before the accident, Mr.
Zhang spent several hours a day preparing meals for his son and family and
looking after his grandson.  This was something that he enjoyed doing and was a
reason for moving to Canada.  However, this loss is not a traditional loss of
housekeeping capacity.  It is more akin to a loss of volunteer activity.  I
have compensated this aspect of his loss within the non-pecuniary award.  In McTavish
v. MacGillivray, 2000 BCCA 164, the Court of Appeal found that it is not
settled law under which head of damages loss of housekeeping capacity should be
assessed (paras. 2, 23, 59-70).  The Court stated in part:

[61] Whether the past loss of
housekeeping capacity is properly characterized as pecuniary or non-pecuniary
could be considered entirely semantic were it not for the impact of the overall
limit on non-pecuniary damages. The limit is not relevant in this case. Counsel
did not suggest any significance to the categorization of the award as general
rather than special damages. For the purposes of this case, I need not discuss
the question further.

[34]        
Mr. and Mrs. Zhang live in a very small rented accommodation.  They have
a bedroom, a bathroom and share a kitchen.  Mr. Zhang no longer cooks so Mrs. Zhang
prepares their meals even though she says that she does not cook as well as Mr.
Zhang.  The emphasis in the Zhang’s housekeeping has shifted.  Before the
accident Mr. Zhang did most of the cooking and washed the dishes.  Since the
accident, Mrs. Zhang does those tasks.  Before the accident, Mr. and Mrs. Zhang
would grocery shop together and their son would help with heavier purchases.  They
still shop in a similar fashion, but Mr. Zhang is much less vigorous than he
was.  He now accompanies Mrs. Zhang, who has the primary responsibilities.

[35]        
Mr. Zhang is able to look after himself and is able to do some household
chores.  However, he has suffered a loss of housekeeping capacity.  He is no longer
able to cook, do dishes or buy groceries in the same vigorous manner as he once
did.  As the Court of Appeal indicated in Westbroek v. Brizuela, 2014
BCCA 48, this is to be compensated as a loss of capacity, not a cost of future
care.  These awards are to be approached conservatively (Westbroek at
paras. 76-78).  In my view, an award of $10,000 is appropriate.

(c) Loss of Earnings, Loss of Capacity

[36]        
Mr. Zhang argues that he earned $12,000 in 2009 from dishwashing.  He
says that he had 4-5 years of earning potential at the time of the accident,
which would total approximately $50,000.  He says that with negative
contingencies, he should be awarded $20,000 to $30,000 for past loss and future
loss of earning capacity.

[37]        
The defendants argue that at the time of the accident, Mr. Zhang was not
yet able to return to dishwashing.  Five months before the accident, he was
able to return to light duties, but not able to find employment.  They say that
his overall employability was reduced because of his wrist injury and his
pre-existing osteoarthritis in his knees.  However, they acknowledge that he
wanted to return to work and the accident has caused him a loss of opportunity
to do so.  They say that considering the negative contingencies, an award of
$10,000, representing one year of after tax income would be appropriate.

[38]        
In my view, Mr. Zhang was highly motivated to work and enjoyed his work
as a dishwasher.  However, I think that 4-5 years of work-life is overly
optimistic.  Mr. Zhang’s knees were symptomatic before the accident.  Osteoarthritis
is a progressive degenerative condition.  The dishwashing job was heavy work
which required him to stand for several hours.  He lost several months from
work recovering from his broken wrist.  Considering the negative contingencies
of his age, frailty and degenerative condition, in my view $15,000 is a
reasonable reward for loss of earnings/loss of earning capacity.

(d) Cost of Future Care

[39]        
Mr. Zhang seeks the following amounts for future care:

[40]        
The defendants say that $1,000 to $4,000 would be an appropriate award
for care-related items flowing from the accident.

[41]        
The Court of Appeal considered future care awards in Gignac v. ICBC,
2012 BCCA 351.  There the court said:

[28]      In Andrews v. Grand & Toy Alberta Ltd. (1978),
83 D.L.R. (3d) 452 at 462, Dickson C.J.C. said:

In theory a claim for the cost of
future care is a pecuniary claim for the amount which may reasonably be
expected to be expended in putting the injured party in the position he would
have been in if he had not sustained the injury. Obviously, a plaintiff who has
been gravely and permanently impaired can never be put in the position he would
have been in if the tort had not been committed. To this extent, restitutio
in integrum is not possible.  Money is a barren substitute for
health and personal happiness, but to the extent, within reason, that money can
be used to sustain or improve the mental or physical health of the injured
person it may properly form part of a claim.

…

[30]      The award is “based on
what is reasonably necessary on the medical evidence to promote the mental and
physical health of the plaintiff: (Milina v. Bartsch (1985),
49 B.C.L.R. (2d) 33 (B.C.S.C.) and adopted in Aberdeen v. Zanatta, 2008
BCCA 420 at para. 41.

[42]        
In Westbroek the court considered the interplay between loss of
housekeeping capacity and future care costs:

[73]      The appellants argue in reliance on Kroeker
v. Jansen, [1995] 6 W.W.R. 5, leave to appeal refused, [1995] S.C.C.A.
No. 263,  that there should be a two-thirds reduction in the award
where a plaintiff and his spouse, as here,  are able to re-organize
domestic chores in such a way that there is no pecuniary loss. The appellants
further note that the award is a loss of capacity award rather than loss of
future care costs and that this Court has suggested such homemaking awards be
approached conservatively.

[74]      I agree that the trial judge miscategorised the
homemaking award under the head of future cost of care damages. In O’Connell
v. Yung, 2012 BCCA 57 at paras. 59−68, this Court clarified that
homemaking costs, properly considered, are awarded for loss of capacity and are
distinct from possible future cost of care claims. An award ordered for
homemaking is for the value of the work that would have been done by the
plaintiff but which he or she is incapable of performing because of the
injuries at issue. The plaintiff has lost an asset: his or her ability to
perform household tasks that would have been of value to him or herself as well
as others in the family unit but for the accident. This is different from
future care costs where what is being compensated is the value of services that
are reasonably expected to be rendered to the plaintiff rather
than by the plaintiff.

[Emphasis in original.]

[75]      In O’Connell, the required service was
correctly seen as damages for future cost of care. What was required in that
case were the services of a personal care attendant for 16 hours daily to
ensure the safety of the plaintiff, who had suffered a brain injury, in
addition to cuing and guiding her in activities of daily living. At the time of
trial the plaintiff’s husband was rendering this care on a full-time basis. The
judge erred by misapplying case law related to homemaking to find that an award
for future cost of care was justified regardless of whether there was a
reasonable expectation that the financial losses would be incurred.

[76]      As noted in O’Connell damages
for loss of capacity to complete homemaking tasks are not dependent upon
whether replacement costs are actually incurred because what is being
compensated is the loss of capacity itself. In contrast, damages for future
cost of care are “directly related to the expenses that may reasonably be
expected to be required” (O’Connell at para. 67) and
cannot be awarded should no such reasonable expectation of an actual future
expense be found. In the instant case, the evidence supports an award for the
loss of capacity to perform certain homemaking tasks; however, I agree that
this award should be approached conservatively.

[Emphasis added.]

[43]        
The plaintiff’s calculations have been adjusted for survival
probabilities.  Because of Mr. Zhang’s age and pre-existing degenerative
condition, his health may have deteriorated even without the accident.  The
award for ongoing future care must also be reduced to reflect this contingency.

[44]        
I agree that the plaintiff’s claims for ongoing rehabilitation and
physiotherapy are appropriate.  He has benefitted from these treatments but has
not been able to continue with them when funding was stopped.  The claims for
Cipralex and psychological counselling are also appropriate, subject to the
contingencies described above.

[45]        
The claim for homecare support is more problematic.  Mr. Zhang does not
require four hours per day of housekeeping help at this time.  He and Mrs.
Zhang have shifted their arrangements so that she has assumed many of the tasks
which he used to perform.  There may come a time in the future when she is no
longer able to do so and he may require some assistance.  However, there is a
significant contingency that he would have been in that position, even without
the accident.  Moreover, their personal homecare requirements are modest.  In
my view, they currently require fewer than four hours per day.

[46]        
Weighing the likelihood of these future events and discounting for
appropriate contingencies, I assess cost of future care as follows:

[47]        
Considering the claim for homecare support, I must consider whether it
will be required at some point in the future, as well as whether Mr. Zhang
would have required such care without the accident.  In my view a reasonable
award for this claim would be $35,000.

[48]        
The costs for Cipralex and counselling are one-time expenses to be
incurred this year and do not need to be reduced for contingencies.

(e) Special Damages

[49]        
The parties agree that special damages are to be awarded in the amount
of $2,200.  I award that amount.

CONCLUSION

[50]        
In summary, I award the following amounts to Mr. Zhang:

[51]        
If the parties cannot agree on costs, they are at liberty to make
further submissions to the court.

“The
Honourable Madam Justice B.J. Brown”