Lubick v. Mei and another,


2008 BCSC 555

Date: 20080327
Docket: 04 4011
Registry: Victoria


Edward Lubick



Cheng Hong Mei and Jiang Zhou Hao


Before: The Honourable Mr. Justice Macaulay

Oral Reasons for Judgment

March 27, 2008

Counsel for Plaintiff:

M. Selly

Counsel for Defendants:

D. Windsor

Place of Trial/Hearing:

Victoria, B.C.


[1]                THE COURT:  The plaintiff, Lubick, sues for damages for injuries suffered in a two-car collision that occurred in Victoria on April 28, 2003.  The defendant, Jiang, was the driver of the other vehicle, a van, owned by the co-defendant (the "Jiang vehicle").  The Jiang vehicle collided with the rear-end of the Lubick vehicle.  The Lubick vehicle was a much smaller and lighter car than the van.  The defendants admit fault for the collision but deny that Lubick sustained any injuries.

[2]                Just before the collision, Lubick was stopped in a controlled intersection waiting to turn left.  According to Lubick, the impact from the Jiang vehicle pushed his vehicle forward.  He described the collision as a "jolt that I wasn't prepared for."  Jiang described the collision in similar but not exactly the same terms. 

[3]                According to Jiang, a line of traffic was stopped waiting for the left-turn signal.  When the light changed, the line started to move.  Jiang testified that the Lubick vehicle stopped when the light changed to yellow and he was not able to stop before hitting it.  He said the vehicles "barely touched" and that the impact was "very light, just a little boom".

[4]                The evidence of the ICBC estimator confirms that the impact was relatively minimal.  The Lubick vehicle sustained cosmetic damage to the rear bumper.

[5]                The Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury.  In Gordon v. Palmer, [1993] B.C.J. No. 474 (S.C.), Thackray J., as he then was, made the following comments that are still apposite today:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury.  This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court.  It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

He goes on to point out that the presence and extent of injuries are determined on the evidence, not with "extraneous philosophies that some would impose on the judicial process".  In particular, he noted that there was no evidence to substantiate the defence theory in the case before him.  Similarly, there is no evidence to substantiate the defence contention that Lubick could not have sustained any injury here because the vehicle impact was slight.

[6]                I am satisfied that Lubick sustained an injury in the collision in spite of the low impact. 

[7]                According to Lubick, he was looking to his left immediately before the collision and the impact pushed his vehicle slightly forward into the intersection.  By the time he went to bed that night, he was aware of pain and discomfort in his lower back and had a headache.  He testified that he reported his injuries to the Insurance Corporation of British Columbia.  According to the corporation's records, Lubick reported within one hour of the collision that he was stiff.

[8]                At the beginning, Lubick did not seek medical assistance for his injuries, although he testified that he reported his injuries to his family doctor on his first visits after the accident.  While the doctor's clinical records do not corroborate that, the doctor testified that he ordinarily records the main reason for the visit.  It is apparent that the main reason for the visits related to significant heart and gall bladder difficulties.  The doctor testified that any reference to the motor vehicle accident, in those circumstances, would have been a minor issue.  I am satisfied that Lubick told his doctor about the accident before the first note in the clinical record described below, but that he described the injuries as relatively minor.

[9]                According to the doctor's clinical notes for the immediate post-accident period, Lubick attended medical appointments on May 14, 21, July 11, 30 and November 10 or 12, 2003.  The first reference to the accident is found at July 11.  After referring to the date and some particulars of the accident, the notes read, in part:: 

-           Has been working with stretches for his lower back;

-           Not helping;

-           Requesting physio; and

-           Note given.

According to Lubick, he initially self-treated by doing exercises such as using a balancing ball, using a treadmill, and doing leg lifts.  I accept that he tried to remedy the problems as he described.

[10]            Lubick's evidence is also corroborated by the two physiotherapists who treated him for left lower back pain.  The first, Richard Burman, treated Lubick from July to October 2003 when funding for the treatment stopped.  That treatment focused consistently on the left lower back.  Although the plaintiff improved, he had not fully recovered when the treatment stopped.  The second physiotherapist, Gerald Illmayer, commenced treating Lubick in December 2003 and continued to August 2004.  His objective findings were consistent with those of Burman.  Illmayer's treatment regime also focused on the left lower back.  Both physiotherapists recommended stretching and abdominal core strengthening exercises in addition to administering typical passive physiotherapy modalities such as massage and electrical current.

[11]            Counsel for the plaintiff did not offer either physiotherapist as qualified to give an opinion respecting causation but the defence cross-examined each on the issue.  Both physiotherapists considered the injury pattern consistent with a low-impact collision. 

[12]            Illmayer, the more experienced of the two physiotherapists, went so far as to say that the very odd clustering of problems in the lower spinal and sacroiliac joint areas rendered it unlikely that there was any cause other than trauma.  While I give this opinion evidence limited weight, it is nonetheless consistent with Lubick's own description of his injuries suffered at the time of the accident.

[13]            In closing submissions, counsel for the defendants contended that the plaintiff failed to prove causation.  In part, counsel contended that Lubick failed to report his injuries for over two months but I am satisfied that he did report although he did not seek active treatment.  He also informed the Insurance Corporation immediately after the accident that he was stiff. 

[14]            Counsel also contended that Lubick's description of his injuries did not make sense because he did not describe an acute phase.  My impression of the plaintiff is that he is somewhat stoical and not given to complaining about relatively minor matters.  Further, he did describe, albeit indirectly, an acute phase.  He testified that his attempts to resolve matters on his own were unsuccessful and that the first round of physiotherapy helped but did not resolve his difficulties.  Finally, according to Lubick, the final round of physiotherapy focused more on his balance; his pain was primarily in the lower back by that point but the pain in his neck and head had "passed."

[15]            Finally, counsel for the defendant contended that any injuries were transient.  I accept that except in relation to the low back complaints. 

[16]            Because of his back, the plaintiff has had to modify some activities on an ongoing basis, particularly in relation to heavy yard work.  After he returned to work as a pub owner and manager in November 2003 following an extended leave from that work for reasons unrelated to the accident, he found that he could not move full beer kegs to the same degree as before the accident.  He continues to have discomfort in his low back which makes it difficult to sleep.

[17]            I am satisfied that Lubick sustained a minor soft tissue neck injury and had headaches as a result of the accident.  Those resolved within a short time.  He also suffered a moderate low back soft tissue injury.  The plaintiff largely recovered from the low back injury by late May 2004 but has had some minor residual discomfort since, although it does not significantly affect his activities now.

[18]            I considered but do not accept the ranges of an appropriate award for non-pecuniary loss that each counsel contended for.  Counsel for Lubick contended that the range is $20,000 to $30,000.  Counsel for the defendants contended a nominal award of $1,000 is fair and provided cases in support of a range up to $6,500. 

[19]            I will refer to only three of the cases relied on to demonstrate that they do not fairly reflect the extent of injury in the present case.  I start with the cases at the low end of the plaintiff's range.  In Walker v. Webb, 2001 BCSC 216, the court awarded $20,000 for non-pecuniary loss to a plaintiff who suffered muscle spasms associated with mid and low back soft tissue injury.  The plaintiff had no palpable spasms after one year but was still only 85 percent recovered at the time of the trial two years after the accident.  In Bray v. Gaete, 2004 BCSC 335, the plaintiff initially suffered from headache, then low back strain with sacroiliitis.  Her neck and shoulders were also affected albeit minimally.  Medical and therapeutic treatment extended over about 15 months.  Her low back symptoms continued to be aggravated by the nature of her occupation at the time of trial, almost four years after the accident.  The award for non-pecuniary loss was $17,000 after a reduction of $3,000 for the plaintiff's failure to mitigate.  The injuries in each of those cases, coupled with their impact on the plaintiffs' enjoyment of life, are somewhat more severe than in the present case.

[20]            The defendant relied on Nichollson v. Armstrong, 2003 BCSC 1988, as indicative of the highest award that I should make.  There, the court awarded $6,500 to a plaintiff who suffered a minor soft tissue injury to the neck that should have resolved within six to nine months.  That decision, and the other cases referred to by counsel for the defendant represent less serious injuries than in the case at bar.

[21]            In my opinion, a fair award for non-pecuniary loss in the present case is $18,000.

[22]            The plaintiff was part owner of a pub from 1999 to 2007.  The specific legal structure of his ownership is not clear on the evidence but he referred to having partners, one of whom managed the business between August 2002 and November 2003.  Accordingly, Lubick was not working at his business at the time of the accident or during the months immediately following.  He was a consultant during that period but did not present any evidence relating to a loss of consulting income.

[23]            When Lubick returned to work as manager of the pub in November 2003, he had difficulties with some of the more physical tasks, such as moving or lifting full beer kegs.  Various employees, in effect, picked up the slack for him but the business did not hire anyone to replace him.  He estimated that the additional help totalled about one hour per day and presented a wage loss claim based on the $10 to $18 per hour paid to employees.

[24]            It is possible, although unlikely, that the business sustained a loss in the circumstances.  There is certainly no evidence that the business paid more for salaries as a result of the plaintiff's injuries.  There is also no evidence that Lubick personally sustained any income loss or loss of capacity to earn income.  I decline to make any award for income loss.

[25]            The plaintiff also claims special damages totalling $5,058.73.  Of that amount, about $200 relates to mileage expenses associated with travel for treatment purposes.  The mileage claim is presented at 40 cents per kilometre.  The defendant says that the amount allowed in taxing a bill of costs is 30 cents, and that rate is presumptively reasonable and should be applied.

[26]            Loo J. rejected a similar submission in Kahl v. Jakobsson, 2006 BCSC 1163, and awarded 40 cents per kilometre.  I intend to follow her decision and award mileage costs totalling $202 on that basis.

[27]            The defendant also objects to three other special damage claims:  $1,477.04 for a treadmill; $2,134.27 for a replacement mattress; and finally, $100 for exercise sessions at the Commonwealth Pool complex.  In my view, the latter two were necessary for medical rehabilitation and reasonable in amount.  I allow those expenses. 

[28]            I decline to award the cost of the treadmill.  I accept that walking may be beneficial but there is no medical evidence that the plaintiff needs to walk indoors on a treadmill as opposed to outside.  In the result, I allow the claim for special damages at $3,581.69.

[29]            The plaintiff is accordingly entitled to the following:

1.  Non-pecuniary damages


2.  Special damages


3.  Court order interest on pecuniary loss
     at Registrar's rates


4.  Costs of trial pursuant to Rule 66(29),
     exclusive of disbursements


[30]            Counsel will have leave to make submissions on costs if there is an offer to settle under the Rules of Court.

[31]            Are there any submissions?


[32]            THE COURT:  In my oral reasons, I inadvertently referred to the costs of trial as being $4,800.  I say inadvertently because I failed to have regard to the amendment in July 2007 that increased the amount of costs, exclusive of disbursements, for a trial of more than one day from $4,800 to $6,600.

[33]            Little more than seven days before the commencement of trial, the plaintiff delivered a formal offer to settle pursuant to Rule 37 of the Supreme Court Rules for $20,000 and costs in accordance with the rule.  It is clear that the plaintiff beat the offer in that the judgment, without regard to court-order interest, exceeds $21,500.

[34]            Rule 66(29) fixes costs, as I have already indicated, at $6,600 if the trial is more than one day.  It also fixes costs at $5,000 if the time spent on the hearing of the trial is one day or less.  Using those figures, and having regard to earlier authority not referred to by counsel, it is apparent that the effective costs per day of trial are $1,600 as it is anticipated that a Rule 66 trial will conclude in not more than two days.  Deducting $1,600 from $5,000 gives a remainder of $3,400 for pre-trial costs.

[35]            In the circumstances, the plaintiff is entitled to pre-trial costs, exclusive of disbursements, of $3,400 before delivery of the offer to settle and double costs thereafter based on two days of actual trial.

[36]            Subject to my arithmetic calculation being correct, the double costs based on the two days of trial is $6,400.  That is two times $3,200.

[37]            Does that conclude the matter?

[38]            MR. SELLY:  Yes, My Lord.  My friend and I, I believe, can come to an agreement on the interest and disbursement amounts.

[39]            THE COURT:  Yes.  It will be at the registrar's rates.  Those are readily available to you.

                 "M.D. Macaulay, J."             

The Honourable Mr. Justice Macaulay