IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160301

Docket: M126782

Registry:
Vancouver

Between:

Hillel Ben-Yosef

Plaintiff

And

Jason Sukhwinder
Dasanjh and
Mohinder Singh Dasanjh

Defendants

Before:
The Honourable Mr. Justice Bowden

Reasons for Judgment

Introduction

[1]           
The plaintiff seeks damages in respect of injuries he sustained when he
was struck by a vehicle while walking in a crosswalk.

[2]           
The defendants have admitted liability. The only issue before the court
is the determination of damages.

The Accident

[3]           
At about 11 p.m. on January 5, 2011, the plaintiff was walking in a
crosswalk when he was struck by a vehicle attempting a left turn at low speed
(“2011 accident”). The plaintiff fell down onto his right side. He said that he
was not immediately injured but his body was sore. He did not hit his head or
lose consciousness. He continued on his way to shop at a local bakery and then
walked home. He attended a walk-in clinic the next day and was given a
prescription for an anti-inflammatory medication to treat soft tissue injuries.
When he saw his family doctor two weeks later and described the accident he
said that he had been “bumped” by the vehicle.

The Plaintiff

[4]           
The plaintiff is 59 years of age. He has been married to Holly Ben-Yosef
for 37 years and has four children. He and his wife live in a house in
Vancouver with their youngest son. They also provide accommodation for two
students.

[5]           
The plaintiff was trained as a dental technician in Israel before moving
to Canada in 1979. His work involved making bridges, crowns and dentures.

Plaintiff’s Pre-2011 Accident Condition

[6]           
The plaintiff stopped working as a dental technician after a car
accident in 1998 (“1998 accident”). He suffered injuries to his neck and upper
back. He also has a history of migraine headaches. He testified that, as a
result of both, he was unable to continue working as a dental technician. He
applied for but was denied CPP disability benefits. He has not returned to work
as a dental technician or sought other employment since the 1998 accident.

[7]           
In the years following the 1998 accident, the plaintiff took over more
and more domestic chores around his house. He says that in the year before the
2011 accident he would do the laundry, clean the toilets, attend to the
dusting, sweep and vacuum and clean the bathtubs in his house once a week. He
also helped the students staying at his home by cooking for them and doing
their laundry. He did the grocery shopping about once each week.

[8]           
The plaintiff testified that in the year before the 2011 accident his
activities included walking, jogging, swimming, stretching and having massages.
He walked or jogged once a day and swam once or twice each week. He was also
active socially with his family and went to restaurants and a movie from time
to time.

[9]           
The plaintiff said that after the 1998 accident and until the 2011
accident he was disabled from working because of neck pain and migraine
headaches.

[10]       
While in his application for CPP disability benefits in December 2005,
the plaintiff stated that he suffered disabling migraines three to four times a
week, which he considered to be triggered by the neck injury he suffered in
1998, he testified that in 2005 he was recovering from that accident. Although
the plaintiff testified in direct examination that he was not denied the CPP
disability benefits but withdrew his application, in cross-examination he was
shown a letter from CPP indicating that the benefits he claimed were denied
because the injuries he described did not prevent him from working after April
1998. Although his claim for CPP disability benefits was denied, he testified
that he has been disabled since the 1998 accident.

[11]       
In cross-examination, the plaintiff agreed that between the 1998
accident and the 2011 accident, he was disabled from working because of his
neck pain and migraine headaches. He agreed that prior to the 2011 accident his
pain was significant enough that he remained disabled from working. He said
that from November 2010 until the 2011 accident he was taking Tylenol 3
medication for his headaches and pain.

[12]       
An x-ray in 2007 showed that he had arthritis in his left shoulder. He
also complained to his family doctor in April 2010 that he suffered pain in
both his feet and knees. He does not recall if his doctor thought that was due
to arthritis.

[13]       
He experienced sinus pain in 2010 and had surgery to treat a deviated
septum that he said was not successful. In December 2010, about a month before
the 2011 accident he complained to his family doctor that he suffered pain in
an elbow. He rated the pain 9 out of 10.

[14]       
In the year leading up to the 2011 accident he continued to suffer neck
pain. Just before the 2011 accident the plaintiff was taking two types of
medication for his migraine headaches. He says that at that point in time his
pain was still significant enough that he continued to be disabled from work.

Plaintiff’s Post-2011 Accident Condition

[15]       
The plaintiff testified that since the 2011 accident he has reduced his
activity. He still walks for about half an hour each day but is not able to jog.
Since that accident he has not tried heavier exercise. He says that he has only
been able to do a minimal amount of housework. His wife took over doing the laundry
and does the cooking but hired a cleaning lady who now cleans their home once a
week for four or five hours.

[16]       
The plaintiff says that he does not see his friends or family as much
since the 2011 accident and stays at home more. It isn’t clear whether he
considers this to be entirely due to that accident. He has continued to take
cruises with his wife each year but says that he spends most of the time on the
ship rather than going ashore at the ports that they visit. Again, it was not
entirely clear whether he considered that to be because of the 2011 accident. He
also testified that he was unable to dance at his son’s wedding which took
place after that accident.

[17]       
The plaintiff’s view is that the 2011 accident has aggravated the
injuries that he sustained in the 1998 accident. He says that since the 2011
accident he has suffered dizziness, sinus problems, back spasms, bladder
control issues, high blood pressure, hemorrhoids, daily headaches and muscle
stiffness. There does not appear to be any of his health issues that he does
not attribute to the 2011 accident.

[18]       
He has not told his doctors about being unable to do housework because
he assumed that they would know that from his condition.

[19]       
Expenses that he has claimed in relation to his condition following the
2011 accident include a number of receipts for parking. It appears from the
evidence that a number of those receipts do not relate to medical visits or
otherwise relate to the accident.

[20]       
The plaintiff’s spouse testified. Holly Ben-Yosef has worked for the
City of Vancouver since 2009 as an assistant to the chief building official. It
is a full time job from 8 a.m. until 4:30 p.m. each weekday. She is presently
59 years old and hopes to retire when she is 65.

[21]       
She says that before the 2011 accident the plaintiff helped out with
cooking, cleaning and yard-work. By 2010 she says that he did all of the
housework and most of the cooking. As a result, she said that she didn’t need
to do those things on weekends.

[22]       
After the 2011 accident she says that she noticed that the work around
the house by the plaintiff declined. She would often have to do the cooking. In
June 2011 she decided to hire someone to help with housework.

Expert Evidence

[23]       
Dr. Pankaj Dhawan, a specialist in physical medicine and
rehabilitation, testified. He first saw the plaintiff on November 15, 2011. He
reported that the plaintiff had a previous history of migraines and that,
together with his injuries from the 1998 accident, rendered him unable to work.
He concluded that the plaintiff had pre-existing neck and upper back pain from
the 1998 accident and was disabled from work before the 2011 accident. He also
said that he had pre-existing degenerative changes in his spine.

[24]       
Although Dr. Dhawan concluded that the plaintiff’s pre-existing
pain had worsened and he had developed new pain in his left lower back and hip,
he agreed with defendant’s counsel that he relied on what the plaintiff told
him regarding his condition before the 2011 accident. In his report, Dr. Dhawan
said that the plaintiff had some ongoing neck and upper back pain after the 1998
accident but it was mild and manageable. He agreed that his symptoms before
2011 must have been more than mild and manageable if they kept him from working.

[25]       
In his report Dr. Dhawan refers to the 1998 accident and says that
the plaintiff had just started to recover from that when the 2011 accident
occurred. Dr. Dhawan agreed in cross-examination that it would be unusual
for someone to suffer disabling injuries and then just start to recover 12
years later.

[26]       
I have exercised some caution in the amount of weight I have attributed
to Dr. Dhawan’s report.

[27]       
The plaintiff’s family doctor, Dr. Daniel Ezekiel testified as an
expert in the field of family medicine. He examined the plaintiff on January
17, 2011, about two weeks after the 2011 accident. He diagnosed the plaintiff
with soft tissue injuries to his neck and lower back.

[28]       
When the plaintiff continued to complain about pain in his lower back,
left hip and left thigh, Dr. Ezekiel ordered a CT scan. The scan showed
degenerative disc disease of the lumbar spine at multiple levels and he
prescribed Gabapentin for the treatment of neuropathic pain. The plaintiff was
taken off Gabapentin on March 30, 2011, due to his intolerance of that
medication but reported persistent pain in his left hip. An x-ray showed early
degenerative changes in his left hip that would have pre-dated the 2011
accident.

[29]       
After attending a number of sessions of physiotherapy, the plaintiff saw
Dr. Ezekiel on July 20, 2011. Dr. Ezekial reported that the plaintiff
became agitated and angry in his office because he said that he remained
symptomatic despite the physiotherapy. Dr. Ezekial opined that the
plaintiff’s high level of anxiety would present an obstacle to any potential
recovery.

[30]       
Dr. Ezekial reported that Dr. Dhawan concurred with him that
the plaintiff had sustained soft tissue injuries on a background of
degenerative changes.

[31]       
At the plaintiff’s next visit on January 23, 2012, Dr. Ezekial
reported that he was again highly agitated and anxious. He also noted that he
had a full range of motion of his neck, there was no tenderness to palpation of
the left hip and a normal range of motion and no tenderness to palpation of the
lumbar area.

[32]       
Dr. Ezekial reported that following an attendance by the plaintiff
on Dr. Teal, a neurologist, Dr. Teal did not find any neurological
deficits and concurred that the plaintiff’s symptoms were of a soft tissue
nature. An MRI did not reveal any acute injuries but further demonstrated
degenerative disc disease.

[33]       
Dr. Ezekial reported:

In the past, Mr. Ben-Yosef’s
medical history is significant for hypertension, chronic anxiety, migraine
headaches, and chronic sinusitis, for which he has undergone multiple sinus surgeries.
These repeated sinus surgeries also resulted in Mr. Ben-Yosef displaying
considerable anger and frustration, highly reminiscent of his behaviour
following this motor vehicle accident. In addition, there was a previous motor
vehicle accident in 2000 in which the patient sustained soft tissue injuries to
his neck and back.

[34]       
It seems that Dr. Ezekial’s reference to an accident in 2000 was
erroneous and should have been the 1998 accident. Dr. Ezekial concluded
that the plaintiff’s injuries from that accident had not resolved because of the
underlying osteoarthritis and degenerative changes in his cervical spine.

[35]       
Dr. Ezekial also attributed the non-resolution of his injuries to
the plaintiff’s chronic anxiety. He opined that:

It is well-known that patients
with underlying psychological illnesses, such as depression, negativity and
anxiety have worse outcomes than those with a more positive attitude.

[36]       
Dr. Ezekial said that the plaintiff has experienced intermittent
pain ever since the 1998 accident and concluded that he had developed chronic
pain.

[37]       
An MRI examination of the plaintiff’s cervical spine in August 2014
showed multi-level disc degeneration.

[38]       
The plaintiff was seen by Dr. Ezekial in June 2015 and he concluded
that the plaintiff had developed “chronic pain syndrome”. Significantly, Dr. Ezekial
reported four factors that led to the development of the chronic pain:

1.    Underlying
osteoarthritis and degenerative changes in the cervical and lumbar spine;

2.    The patient’s
age;

3.    The patient’s
chronic anxiety and general negativity; and

4.    The patients
previous MVA in 2000 [sic] which resulted in similar soft tissue injuries and
from which he never fully recovered.

[39]       
In cross examination Dr. Ezekial said that the matters he described
as unrelated to the 2011 accident were the plaintiff’s problems with his sinus,
high blood pressure, and haemorrhoids. He also stated that the plaintiff’s
degenerative changes in his spine and lower back were present before the 2011 accident.

[40]       
Importantly, Dr. Ezekial agreed with defendant’s counsel that the
plaintiff had developed chronic pain syndrome before the 2011 accident.

[41]       
Dr. Ezekial recommended regular physical fitness including aerobic
activities, strengthening and stretching exercises for the rest of the
plaintiff’s life. In cross-examination he said the plaintiff is capable of
pursuing recreational activity for physical fitness. It appears that the
plaintiff limits himself based on his view of what he can and cannot do rather
than what his family doctor says. Dr. Ezekial said that when the plaintiff
came to his office he walked freely and briskly and he assumes that he could do
recreational activities such as kicking a football. He confirmed that the
plaintiff’s bladder, sinus and haemorrhoid problems are not related to the
accident.

[42]       
In the end result Dr. Ezekial said that he would describe the
plaintiff’s condition in the same way both before and after the 2011 accident.

[43]       
The defendants’ expert, Dr. Olli Sovio, deposed that the plaintiff
was capable of engaging in an exercise program including the use of exercise
machines or swimming. On page 4 of the transcript of Dr. Sovio’s evidence
(Exhibit 4) when describing the plaintiff, he stated:

…I did not feel that he had any
physical limitations if he was to return to work as a dental technician. I did
not feel that he would be physically limited or prohibited from returning to
that job on the basis of what I found when I examined him.

[44]       
When he was asked whether the plaintiff could engage in housekeeping
work requiring him to be on his hands and knees, Dr. Sovio stated:

…I don’t think he would be
disabled from doing housework.

Analysis

[45]       
I have some concerns regarding the plaintiff’s credibility and
reliability. A number of his statements are inconsistent with the medical
opinions.

[46]       
He said that he did not have hypertension before the 2011 accident and
was not taking medication for it. The evidence was that he was taking Natalol
for migraines and hypertension as well as other medication for high blood
pressure. Ms. Ben-Yosef insisted that the plaintiff did not have blood
pressure issues before the accident.

[47]       
He was not truthful when he said that all of his parking receipts
corresponded with his visits to a doctor, chiropractor or massage. A number of
them did not relate to those visits.

[48]       
The plaintiff insisted that he withdrew his claim for CPP disability
benefits when in fact he was denied those benefits. Ms. Ben-Yosef also
said that the plaintiff had withdrawn his application for CPP benefits.

[49]       
He denied that his pre-accident sinus condition caused him pain and said
that that condition was aggravated by the accident. Dr. Ezekial’s opinion
was that it could have caused him pain but that it had no relationship to the
accident.

[50]       
The plaintiff asserts a claim for housekeeping expenses but says that he
never discussed his housekeeping duties with Dr. Ezekial or Dr. Dhawan.

[51]       
Dr. Ezekial and Dr.Sovio both opined that the plaintiff is capable
of exercise including aerobic exercise which suggests that he would be able to
do some housework. Dr. Sovio’s opinion was that the plaintiff was capable
of doing housework. Although Dr. Dhawan expressed the opinion that the
plaintiff would have difficulty sitting, standing, walking, bending or lifting there
is no expert opinion expressly stating that he would be unable to undertake any
housework.

[52]       
I am not prepared to attach much weight to the plaintiff’s description
of the change in his condition following the 2011 accident without
corroboration from someone other than Ms. Ben-Yosef and their son.

[53]       
The evidence shows that the majority of the symptoms that the plaintiff
attributes to injuries from the 2011 accident probably were present before that
accident. The expert evidence is that the plaintiff was suffering from chronic
pain syndrome before the 2011 accident. It appears that he was taking
anti-inflammatory drugs before that accident as well as medication for
hypertension and pain.

[54]       
The 2011 accident was not significant. While the plaintiff was knocked
down in a cross walk, he described the event to his family doctor as being
“bumped”. He said that he got up, exchanged information with the defendant and
then continued on his way to do some shopping before going home.

[55]       
Nevertheless, I accept that the plaintiff suffered some soft tissue
injuries to his lower back and left hip and that the 2011 accident caused some
aggravation to his pre-existing chronic pain.

Damages

[56]       
The defendants admit liability and that the plaintiff suffered soft
tissue injuries to his left hip and lower back from the 2011 accident.

[57]       
Although the plaintiff had a pre-existing medical condition, the
defendants also admit that the symptoms caused by the 1998 accident were
aggravated somewhat by the 2011 accident. In my view the degree of aggravation
was minimal. Nevertheless, the defendants must take the plaintiff as he was at
the time of the accident. A plaintiff whose pre-existing physical condition
makes him more vulnerable to sustaining injury is nevertheless entitled to be
compensated for his injury. However, the defendants do not, by monetary
compensation, have to put the plaintiff in a better position than he was in
before the accident. (Athey v. Leonati, [1996] 3 S.C.R. 458)

Non-Pecuniary Damages

[58]       
Non-pecuniary damages attempt to compensate a plaintiff for the pain,
suffering and loss of enjoyment of life which resulted from the defendant’s
negligence.

[59]       
The principles to apply in determining non-pecuniary damages have been
well articulated in Stapley v. Hejslet, 2006 BCCA 34, and include the
age of the plaintiff, the nature of the injury; the severity and duration of
the pain; the nature of the disability; the emotional suffering and the loss or
impairment of life; the impairment of family marital, and social relationships;
impairment of physical and mental abilities; loss of lifestyle and the
plaintiff’s stoicism.

[60]       
While I accept that the plaintiff’s pre-existing condition was somewhat
aggravated by the 2011 accident, he had developed chronic pain syndrome before
that accident presumably following his injuries in the 1998 accident. Some of
his continuing symptoms also appear to be related to the degeneration which has
occurred in his spine which is unrelated to the 2011 accident.

[61]       
It is difficult to differentiate the impact of the 1998 accident and the
2011 accident on the plaintiff’s quality and enjoyment of life. It appears that
the 1998 accident left him unable to work, caused him intermittent pain that
ultimately became chronic and limited his activities. The 2011 accident
aggravated his condition somewhat but the degree of aggravation cannot be
determined with any certainty.

[62]       
I have concluded that in the circumstances of this case and considering
the factors in Athey, an award of $30,000 is appropriate.

Special Damages

[63]       
The plaintiff has submitted receipts for special damages totalling
$19,444.55.  They include $800 for acupuncture; $269.92 for chiropractic
services; $3,845.38 for massages; $1,251 for physiotherapy; $678.25 for parking
and $12,600 for housecleaning.

[64]       
There are no medical opinions indicating a need for acupuncture but the
plaintiff was receiving acupuncture before the 2011 accident and I will accept
that he would have continued them for about a year afterwards.  I award $400
for such treatments.

[65]       
Although the plaintiff was receiving massage therapy before the 2011
accident and likely would have continued to do so, I accept that in light of
the soft tissue injury to his lower back and left hip he would have needed
another year of massage and I consider the receipted amount of $734.72 to be
reasonable.

[66]       
I also consider the amount of $1,001 claimed for physiotherapy to be
reasonable.

[67]       
Some of the parking receipts have been shown not to relate to medical
appointments. I am prepared to allow one half of those expenses or $340.

[68]       
Only one receipt for chiropractic treatment falls within the one year
period after the accident. That amount of $72.80 is allowed.

[69]       
The plaintiff’s claim for past housekeeping expenses is since June 2011
when his spouse hired a housekeeper.

[70]       
The medical evidence does not satisfy me that the plaintiff was impaired
from doing housekeeping as a result of the 2011 accident indeed some expert
evidence is to the contrary. Without a medical opinion that clearly states that
the plaintiff was rendered unable to do housekeeping after the 2011 accident I
am unable to conclude that the past housekeeping expenses were necessary and
reasonable.

[71]       
The past cost of housekeeping is not allowed as special damages.

Future Care and Housekeeping Costs

[72]       
The plaintiff submits that his cost of future care will include
acupuncture treatments, massage treatments, and over the counter medication for
the rest of his life for a total of $20,800 in present value terms. Of necessity
this is a rough estimate because no present value calculation was provided to
the court.

[73]       
The evidence is that the plaintiff incurred similar costs after the 1998
accident and right up until the time of the 2011 accident. In my view such
costs would likely have continued whether or not the 2011 accident had occurred.
Dr. Ezekial said that he did not see much of a change in the plaintiff’s
condition before and after the 2011 accident. The medical evidence does not
establish on a balance of probabilities that the suggested future care costs
are necessary and arise from the 2011 accident.

[74]       
Future housekeeping costs are estimated to be $75 an hour for 5 hours
each week for a period of 6 years at which point it is said that Ms. Ben-Yosef
will return to housekeeping. The amount claimed in present value terms is
$23,400. I note that no present value calculation has been provided to the
court.

[75]       
As with the past cost of housekeeping services, I am concerned that the
medical evidence is somewhat equivocal regarding the need for future
housekeeping services. While the plaintiff may well have been unable to
undertake housekeeping tasks for some period of time after the 1998 accident,
the evidence does not establish that his condition following the 2011 accident
rendered him less capable of doing household chores than he was before the
accident.

[76]       
No amount is awarded for future housekeeping costs.

Summary of Damages

Non-Pecuniary Damages:             $30,000.00

Special Damages:  2,548.52

Total: $32,548.52

Costs are awarded to the
plaintiff at Scale B.

“Bowden, J.”