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Recent Judgment for Wang v. McNaught, 2017 BCSC 454
March 28, 2019
In the case of Wang v. McNaught, Counsel for the Plaintiff was Craig McTavish and counsel for the Defendants was A. du Plessis & D. Fiorvento. The case was heard before the honourable Mr. Justice Affleck.
The plaintiff was injured in two car accidents. On May 19, 2012 the vehicle in which he was riding as a passenger was struck by a vehicle driven by the defendant Robert Lorne McNaught. On October 23, 2014, he was driving a vehicle which was struck by a vehicle driven by the defendant Carol Ann Ferreira and owned by the defendant Oswaldo Manuel D. Ferreira. Liability for both accidents is admitted.
Before the accident the plaintiff was very active and healthy. He frequently hiked the Grouse Grind. He was learning to ski and went swimming. He was employed in a physically active job in a warehouse operated by the British Columbia Liquor Distribution Branch, (LDB). At home the plaintiff took responsibility for vacuuming carpets on the three floors of his townhouse and cleaned its two bathrooms. The vacuum did not require strenuous work because it is a robot. Nevertheless the plaintiff needs to kneel or crouch to empty the vacuum and since the accidents that has caused him discomfort and pain.
The plaintiff, Mr. Wang, now performs little in the way of housework and he does not engage in any of the physical recreational activities which he once enjoyed. Mr. Wang's activities are limited by pain. The plaintiff lost his job with the LDB, which involved lifting boxes of merchandise in the warehouse. He attributes his loss to his accident injuries. The plaintiff suffers chronic pain in his neck and back as well as depression and stress. The plaintiff saw a family doctor on several occasions at a walk-in clinic. Mr. Wang was given notes requesting his employer excuse him from work because of “back injuries.” The physician at the walk-in clinic also prescribed medications. No expert report from a family doctor was put into evidence at the trial.
Dr. Hiram Mok is a psychiatrist, who was asked to evaluate the plaintiff on May 14, 2014. His letter of opinion dated June 11, 2014, was put into evidence at trial by the plaintiff. Dr. Mok also testified. Dr. Mok gave his opinion on the “psychiatric and psychological sequelae of the motor vehicle accident in question,” which at the date of his report was the accident of May 19, 2012. Dr. Mok found the plaintiff was experiencing a moderate level of depression with, “mild levels of anxiety.” He observed that on “the Sheehan’s disability scale, the plaintiff's score on the working domain was 10/10 (indicating extreme impairment), on the social and home/family responsibilities domains his scores were both 7/10, (indicating marked impairment).” The plaintiff was not experiencing cognitive difficulties in Dr. Mok's opinion. As a result of the injuries from the first accident Dr. Mok concluded the plaintiff suffers from a chronic pain disorder, and a major depressive order which did not exist prior to the accident of May 19, 2012. Dr. Mok recommended medication and individual psychotherapy through a Mandarin speaking psychologist for the purpose of addressing The plaintiff’s depression, chronic pain and post-traumatic stress disorder. He recommended 12 one hour sessions at a total cost of about $2,000.
Dr. Mok evaluated The plaintiff again on August 3, 2016. In Dr. Mok’s opinion the second accident aggravated the plaintiff's chronic pain, as well as his major depressive and post-traumatic stress disorders from the first accident, but added no further injuries. Nevertheless The plaintiff’s chronic pain “continues to cause marked impairment in his social and recreational life, as well as his ability to carry out domestic chores.” Dr. Mok recommended continued use of medications and ten hours of individual psychotherapy. Even with the medications and the psychotherapy, Dr. Mok does not expect Mr. Wang will experience full recovery from the effects of the accidents.
At the request of the defendants The plaintiff was seen by Dr. Robin Rickards, an orthopedic specialist with a particular interest in pain management. In Dr. Rickards’ opinion The plaintiff’s symptoms are related to a “probable cervical facet joint syndrome.” He explained that the facet joints are small thumbnail sized joints found in each level of the spinal column which can become irritated with repetitive activity or a “sudden twist or flexion – extension.” In Dr. Rickard's opinion the coincidence in time between the accident of May 19, 2012 and the onset of neck and shoulder pain with The plaintiff suggests a cause and effect relationship. Dr. Rickards recommends medication and an exercise program directed by a personal trainer, kinesiologist or physical therapist over a period of a number of weeks with the plaintiff carrying on with exercise independently. In Dr. Rickards’ opinion with “appropriate treatment, symptoms would be expected to improve and likely completely resolve within a 2 to 4 month period of time.” The evidence indicates the plaintiff has had little in the way of active physical rehabilitation, perhaps largely because he has not been able to afford it.
At the time of the first accident the plaintiff was employed by the LDB as a warehouseman. Following the first accident in May 2012, the plaintiff took time away from work but his wages were paid throughout 2013. He earned approximately $40,000 in that year. His income had been about $800 more in the previous year. In 2013 the plaintiff received short-term disability payments following the first accident and his limited work capacity. He applied unsuccessfully for long-term disability benefits. Following the second accident in October 2014, the plaintiff did not return to the LDB. Nor did he make any attempt to contact his employer. In October 2016 the plaintiff received a letter of termination from the LDB. When the plaintiff ceased attending regularly at the LDB he took on other jobs such as working in a fruit and vegetable produce market and later as a dishwasher. The plaintiff earned $15,970 in 2014 and $20,693 in 2015. Work BC paid $24,961 to the plaintiff in 2016 to permit him to enroll in an accounting program at Douglas College and to support himself.
The plaintiff's loss of employment with the LDB was found voluntary. The honourable Mr. Justice Affleck accepted that the plaintiff lost some capacity to earn income in the years after the accidents until the trial. The honourable Mr. Justice Affleck decided that the plaintiff, by abandoning his employment with the LDB, has failed to mitigate his lost capacity to earn income from the time of the accidents until the date of trial. The honourable Mr. Justice Affleck assessed the plaintiff's damages for lost income in the five years since the first accident until the date of trial at $25,000.
The plaintiff's loss of earning capacity in the future must be proven by evidence sufficient to demonstrate that there is a real and substantial possibility of future losses, (Perren v. Lalari, 2010 BCCA 140). The honourable Mr. Justice Affleck was satisfied that the plaintiff had shown that he has lost capacity to earn income in the future because of his accident injuries. The appropriate amount to award as damages for the future loss of income earning capacity is not a matter of calculation. It is a matter of assessment, (Rosvold v. Dunlop, 2001 BCCA 1). This assessment was made through contrasting the plaintiff's future earning capacity as it now is with what it would have been if the accidents had not occurred. The honourable Mr. Justice Affleck decided that without the accidents the plaintiff would have continued to work for the LDB until retirement and earned about $40,000 per annum with modest increases over the years. Once the plaintiff obtains his qualification in the field of accounting he will be able to earn an annual income similar to that which he had enjoyed with the LDB. However, The honourable Mr. Justice Affleck found that there is no doubt the plaintiff has lost some of his capacity to earn income. His injuries have placed limitations on his capacities for various kinds of work. He is less attractive to future employers because of his injuries.
Dr. Rickards opinion that with adequate rehabilitation the plaintiff would shed his pain and disability entirely within months may be correct. However, the honourable Mr. Justice Affleck remained doubtful that, that will happen since it has been five years now since the plaintiff has had his first accident and it appears his condition has remained relatively static. Nevertheless, the honourable Mr. Justice Affleck recognized that with greater activity and some rehabilitative measures, which the plaintiff will now be able to afford, his opportunity to recover will be greater. However, there is a risk that the plaintiff will not recover fully. In assessing his future loss of earning capacity the honourable Mr. Justice Affleck took into account that it is the defendants who have put the plaintiff at risk and assessed the plaintiff’s future loss of earning capacity at $75,000.
The defendant submits an award of $5,000 is appropriate for the cost of future care. The plaintiff’s estimate is similar and the honourable Mr. Justice Affleck awards this amount. The parties are agreed that special damages should be awarded at $5,959.95.
The plaintiff referred to a number of authorities in which non-pecuniary general damages were awarded in the range of $175,000. The honourable Mr. Justice Affleck considered Pololos v. Cinnamon Lopez, 2016 BCSC 81, Domil v. Cheung, 2017 BCSC 65 and Kallstrom v. Yip, 2016 BCSC 829, as well as the principles for assessing non-pecuniary general damages laid down in Stapley v. Hejslet, 2006 BCCA 34. The defendants rely on Mandra v. Lu, 2014 BCSC 2199, Jiang v. Pappas, 2016 BCSC 1015, and Dhanji v. Holland, 2015 BCSC 1351. They suggest an award of non-pecuniary general damages of $75,000. The honourable Mr. Justice Affleck agreed with the plaintiff and awards the plaintiff with $175,000 for non-pecuniary general damages for pain and suffering and loss of enjoyment of life and loss of amenities.
In summary, the plaintiff has been awarded the following:
Lost income to the date of the trial: $25,000
Future loss of income earning capacity: $75,000
Cost of future care: $5,000
Special damages: $ 5,959.95
Non-pecuniary general damages: $175,000.00
I award the plaintiff damages of $286,000. Unless there are matters of which I am unaware the plaintiff is entitled to his costs.
Review the details and complete record of the case by clicking here.
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