2008 BCSC 1508 Noh v. Verjee

Before: The Honourable Mr. Justice Hinkson

Reasons for Judgment

Counsel for the Plaintiff	E. Anthony Thomas Derek Young
Counsel for the Defendants Nasir Uddeensalem Verjee and Monad Interior Decorators Inc.	Daniel Harlos
Date and Place of Trial:	October 20, 21, 22 and 23, 2008
	Vancouver, B.C.

[1] The plaintiff is a 54 year old man who was injured, together with his wife, in a motor vehicle accident on March 27, 2004. His vehicle was struck in a head on collision by a vehicle owned by the defendant Monad Interior Decorators Inc., and driven with their permission by the defendant Nasir Uddeensalem Verjee.

[2] The defendants Monad Interior Decorators Inc. and Nasir Uddeensalem Verjee admitted liability for the collision. The plaintiff then discontinued the action against all other named defendants.

[3] The trial of this action related only to the assessment of damages for Mr. Noh.

DAMAGES CLAIMED

[4] The plaintiff seeks awards of damages for:

a) non-pecuniary damages;

b) past loss of earnings or opportunity to earn income;

c) cost of future care; and

d) special damages.

BACKGROUND

[5] The plaintiff was born and attended university in South Korea. He attained some fluency in English in the course of his education. Shortly before he completed his university education in January 1983, he obtained employment with Dong Ah Construction, a large Korean construction firm that the plaintiff apparently described to Dr. Hirsch as the second largest construction firm in the world.

[6] Dong Ah initially employed the plaintiff to use his English language skills to coordinate the efforts of the engineers employed by his company and the employees at a nuclear facility. After one year, his employer asked him to relocate to Libya to work with the employees in a $3 billion (U.S.) water pumping project. He remained in Libya for two years, and then returned to the company’s head office in Seoul where he worked in a middle management position.

[7] In 1990 the plaintiff returned to Libya on the same project for a further 39 months, handling his employer’s insurance needs, before returning again to Seoul. He was then sent to scout for projects for his employer in North America. In December of 1996 he went to assess a project at Whistler, British Columbia, where he was introduced to members of the management of Bosa Construction.

[8] By July 1997 Mr. Noh had negotiated a joint venture project for his Korean employer with Bosa Construction and became his employer’s Canadian president with an office in Vancouver. The joint venture involved a $70 million project, and was followed by other opportunities, including one in the Metrotown area of Burnaby.

[9] As he had two school-aged sons, Mr. Noh left Dong Ah in approximately November 2001 rather than returning as asked to Libya. He remained in some sort of employment arrangement with Bosa Construction searching for construction opportunities for that company, and decided to open an “English as a second language” centre which he named the Crystal Learning Centre. His office was located in the Crystal Square Mall in Burnaby, the project that Bosa Construction and Dong Ah had built as their joint venture.

[10] Mr. Noh’s office space was but 716 square feet which he divided among three classrooms and his own office. He incorporated a numbered company, 608876 B.C. Ltd., through which to run his business. He also decided that he would offer a low ratio of one teacher to one or two students, to build a good reputation and attract other students. In starting the business he advertised for both Chinese and Korean speaking students. Mr. Noh did not participate in the teaching of any students, but did prepare reports on the progress of the students.

[11] Mr. Noh did not have an accounting system for his business, and the unaudited financial statements produced at trial were only prepared in August of 2008 from those records that Mr. Noh still had at that time. The records did not break down the salary payments by hourly rates, nor distinguish between teaching and other remunerative activities for the staff. The figures I will refer to below are derived from these unaudited statements.

[12] Although she was not paid by the centre, Mrs. Noh, the plaintiff’s wife, provided what both Mr. Noh and his son described as essential services for the centre by picking up and transporting students to and from the centre each day.

[13] The business opened in the late spring of 2002, with one set of morning classes and two sets of afternoon/early evening classes, all of a duration of 1.5 hours. In its first partial year of operation, the learning centre generated revenues of $53,922.00 against expenses of $74,044.00, $49,069.00 of which were for employee wages and benefits, for a net loss of $20,122.00. Mr. Noh paid himself nothing from the centre for that calendar year.

[14] In 2003, the first full year of operation, the centre generated revenues of $116,382.00 against expenses of $ $101,622.00, $63,455.00 of which were for employee wages and benefits, offsetting all but $1,589.00 of the previous year’s loss. Again Mr. Noh paid himself nothing from the centre for this year.

[15] Mr. Noh and his wife suffered a variety of injuries in the accident of March 27, 2004. The extent and duration of Mrs. Noh’s injuries was not explained other than to say that they were significant enough that she was unable to resume her driving activities for the centre.

[16] The evidence of Mr. Noh’s injuries came from Mr. Noh; his son Alex; and from Dr. G.H. Hirsch, a specialist in Physical and Rehabilitative Medicine who only saw Mr. Noh on May 1, 2008 at the request of Mr. Noh’s counsel. Mr. Noh complained of neck and shoulder stiffness and pain following the accident, which he felt resolved to 85-90% of normal by the end of 2006.

[17] Mr. Noh said that as a result of his injuries, he was unable to concentrate at work, and was less effective in his attempts to expand his business. He said that performing his usual administrative duties exacerbated his neck stiffness and fatigued him more than they did prior to the accident of March 27, 2004. He said he reduced his morning exercise routine; stopped playing golf, which he said he had done once a month; and no longer skied, which he had done two or three times a year with his family.

[18] Mr. Noh agreed in cross-examination that he experienced difficulties with his right arm in September 2004 which prevented him from driving for 1.5 to 2 months.

[19] Mr. Alex Noh, the plaintiff’s younger son, agreed that his father was more tired after the accident; reduced his morning exercise routine; and decreased his recreational activities such as golf, skiing, and walks with his mother in the evenings. He said that his father needed more help at work and that he drove some of the students and did some of the work required around the learning centre that his father had previously done.

[20] In preparing his report for the court, Dr. Hirsch reviewed a number of medical records relating to Mr. Noh, and counsel for the defendants agreed that those records were accurately summarized in Dr. Hirsch’s report. Dr. Hirsch described Mr. Noh as suffering from soft tissue injuries to structures such as muscles, tendons and ligaments attaching to the cervical spine, and from chronic pain in his neck and shoulder girdle which affected him emotionally and psychologically.

[21] Dr. Hirsch said that in September of 2004, the plaintiff experienced difficulties with his right arm that were likely unrelated to the accident.

[22] Dr. Hirsch said that Mr. Noh has been experiencing neck pain for the four years since the accident, but that at present that his symptoms are fairly minor. Dr. Hirsch attended at trial and testified in direct examination, but was not cross-examined.

[23] In 2004, the learning centre generated revenues of $147,516.00 against expenses of $149,105.00, $106,552.00 of which were for wages and benefits for employees. Again Mr. Noh paid himself nothing for this year from the centre.

[24] In 2005, the centre generated revenues of $123,160.00 against expenses of $110,130.00, $87,948.00 of which were for employee wages and expenses, resulting in a profit of $13,030.00.

[25] On October 5, 2005, Mr. Noh incorporated a company to pursue real estate development, and became involved in a real estate venture. He earned some $20,000.00 for what he explained was some five or six hours work, by raising money for the project from Korean investors.

[26] In February or March of 2006, the plaintiff became involved in a significant real estate venture in the Squamish area, followed shortly thereafter by another referred to as the “Azure project”. By June of that year, Mr. Noh concluded that he could make far more money in real estate development than with his learning centre, and he began to wind down the latter, closing it completely in 2007. On September 5, 2006, the plaintiff incorporated a second company through which to pursue real estate development work.

[27] The learning centre generated revenues of $48,361.00 against expenses of $68,537.00 in 2006. Of the expenses, $47,213.00 was for wages and salaries. In 2006 and following, the plaintiff has earned significant income from real estate development, far more than he could ever have generated from his learning centre.

ANALYSIS

[28] On the whole, I found the plaintiff to be a good, credible witness. I am satisfied that he fully intended to develop a high-quality educational centre for those wishing to learn English as a second language and that he was attempting to do so when he was injured in the motor vehicle accident of March 27, 2004.

[29] I find as well, however, that the plaintiff’s records relating to his learning centre were poor, and that his business model was unlikely to lead to significantly greater income than it generated in its best year, 2005. Clearly the plaintiff will make far more money in real estate than he could ever have made with his learning centre, and he has recognized this by restricting his claim related to the learning centre to the period from March 2004 until June 2006.

[30] I find that the plaintiff was involved in a significant collision while travelling at approximately 60 km/h, when his vehicle rapidly decelerated after being struck head on by the defendants’ vehicle which was travelling in the opposite direction. The plaintiff’s vehicle was destroyed. As a result of the collision, I find that the plaintiff suffered soft tissue injuries to his neck, shoulders and clavicle, which interfered with his usual exercise routine, his normal daily activities, and his ability to perform the duties required of him at his learning centre.

[31] I find that before these injuries resolved, the plaintiff’s circumstances were further interrupted by a nerve injury affecting his arm, but that that injury was unrelated to his motor vehicle accident. I find that the injuries attributable to the motor vehicle accident continued to adversely affect Mr. Noh in his daily activities in an ever-decreasing manner until the end of 2006, when they plateaued at approximately 90% of his pre-accident condition. I find that the injuries related to the motor vehicle accident are now, as Dr. Hirsch described, “fairly minor” and that they only interfere in Mr. Noh’s usual activities on a sporadic basis, perhaps every month or so.

NON-PECUNIARY DAMAGES

[32] Mr. Thomas for the plaintiff referred me to six cases: Chan v. Lee, 2008 BCSC 594 [Chan]; Stevanovic v. Sin, 2007 BCSC 1797 [Stevanovic]; Cryderman v. Giesbrecht and Giesbrecht, 2006 BCSC 798 [Cryderman]; Ching v. McCabe et al., 2006 BCSC 1589 [Ching]; Sudbury v. Kohlen, 2007 BCSC 1369 [Sudbury]; and Klippenstein v. Parmar et al., 2003 BCSC 1138 [Klippenstein]. These, he argued, represented a range of non-pecuniary damages of $35,000.00 to $50,000.00 in cases similar to that of the plaintiff.

[33] Mr. Harlos, for the defendants, referred me to three decisions with damages between $20,000.00 to $25,000.00 that he argued were cases where plaintiffs suffered injuries similar to those of Mr. Noh: Asere v. Whelon and Transportation Lease Systems Inc., 2006 BCSC 1617 [Asere]; Marcelino v. Francesutti and Others, 2002 BCSC 1711 [Marcelino]; and Shore v. Bierens, 2005 BCSC 259 [Shore].

[34] The plaintiff in Chan was a 31 year old woman who suffered mild to moderate soft tissue injuries to her neck, upper back and shoulder with a late onset of low back pain that was found to have been caused by the accident in question in her case. At trial almost 4 years later, she still suffered some anxiety related to the accident, and intermittent pain and tightness in her neck. She received $35,000.00 for her non-pecuniary damages.

[35] The plaintiff in Stevanovic was a 66 year old man who suffered soft tissue injuries to his neck and shoulder that kept him away from a physical job for four months, but which largely resolved within two years. At trial some nine years after the accident, he was still found to have some neck and shoulder pain that appears to have been attributed to other causes. He was awarded $35,000.00 for his non-pecuniary damages.

[36] The plaintiff in Cryderman also received non-pecuniary damages of $35,000.00. She was a 24 year old woman who sustained soft tissue injuries to her neck and back that resolved to some 80% of normal sometime before her trial. The trial was some 4.5 years after the accident.

[37] The plaintiff in Ching was a 43 year old woman whose non-pecuniary damages were assessed at $50,000.00 for soft tissue injuries to her neck, upper back and shoulders that resulted in headaches and a mild stress reaction. She experienced improvement within a year of her accident, but was still experiencing ongoing symptoms of pain and restriction almost four years later.

[38] The injuries which the plaintiff in Sudbury was found to have experienced were unclear, and I did not find that case of assistance.

[39] In Klippenstein, non-pecuniary damages were assessed at $40,000.00. The plaintiff was a 49 year old man who suffered headaches, and upper back and neck pain that had not resolved by the time of trial four years after his accident, and which continued at that time to interfere with his work and other physical activities. His prognosis for full recovery was described as modest.

[40] In Asere, a man in his late 60’s sustained moderately severe injuries to his neck, shoulders and lower back that declined in severity over the next ten months, flared up six months thereafter, and persisted for 2.5 years. He received non-pecuniary damages of $25,000.00.

[41] The plaintiff in Marcelino was a 41 year old woman who was involved in a head on collision. She suffered a moderate whiplash injury with a contusion to her left chest wall. Fortunately her injuries were found to have resolved within two years of the accident. Her non-pecuniary damages were assessed at $20,000.00.

[42] In Shore, a young woman sustained injuries to her neck, jaw, left shoulder and cervical spine. She also strained her right knee and received a possible concussion, all of which resulted in shock, headaches, visual floaters, nausea and mental distress. Her injuries resolved within approximately 32 months, and she was awarded non-pecuniary damages of $25,000.00.

[43] I consider that the injuries of the plaintiff in this case are somewhat more serious than those of the plaintiffs in the cases relied upon by Mr. Harlos, but not as severe as those suffered by Ms. Ching or Mr. Klippenstein. I assess his non-pecuniary damages at $35,000.00.

PAST LOSS OF EARNINGS OR OPPORTUNITY TO EARN INCOME

[44] The plaintiff argued that, but for the accident, he would have successfully expanded his learning centre business either by expanding the office space or by arranging to tutor students in their own homes by having teachers travel to those homes. He also argued that he would have started a summer program for overseas students to come to the greater Vancouver area, and for teachers from B.C. to travel to Korea to teach there. Mr. Noh argued that he would have received commissions of a sort for the provision of B.C. teachers to Korea.

[45] I do not accept that the expansion of Mr. Noh’s business into additional office space was a realistic or remunerative proposition. His rent in the space that he had was offset in part by the fact that he had an option to purchase on the space, and the profit margin from his venture was so slim that any additional rent at market rates would not have generated significant returns.

[46] There is also the reality that without Mrs. Noh to drive the students, Mr. Noh would have had to pay someone else to do so, further eating into whatever profit there was to be made.

[47] Mr. Noh said that some 25% of his students were taught in their homes. That number did not appear to vary over the time the centre was open prior to the accident.

[48] Mr. Noh might have expanded his business without increasing his overhead if he could secure students who could be taught in their own homes. However I am simply not persuaded on the evidence before me that there was a ready supply of such potential students, or that the one-to-one teaching that they would have received would have made any significant profit for Mr. Noh, once he had to pay for the travel of the teachers.

[49] I find that the plans with respect to the summer program and the provision of teachers to Korea were so preliminary as to amount to little more than speculation. As a result, I find that the plaintiff has failed to prove any loss caused by not pursuing those plans. In addition, I find that the motor vehicle accident of March 27, 2004 did not prevent Mr. Noh from pursuing those plans if he so wished. His explanations of what was needed on his part to accomplish such plans were not efforts that were impaired by the injuries he sustained in the accident.

[50] I am, however, persuaded that it was necessary for Mr. Noh to incur some additional expense to maintain his learning centre business from the time of the accident until he wisely chose to close that business and devote himself full-time to real estate development. He paid his son Alex $5,000.00 to take over some of the duties both he and his wife had done. I accept that this payment, which came in two instalments, was both reasonable and necessary in order to try to maintain the business.

[51] In addition, I accept that the difficulties that Mr. Noh experienced as a result of the injuries that he suffered in the accident of March 27, 2004 necessitated at least some of the duties performed by Mr. Alistair Mah. Mr. Noh estimated that some 10-15% of the sum of $32,419.74 that he paid to Mr. Mah was to compensate him for performing tasks that he would have done himself, if able to do so. I have concluded that some of the additional duties performed by Mr. Mah were necessitated, not by Mr. Noh’s difficulties from his injuries, but rather because Mr. Noh was becoming more actively involved in real estate development. I therefore award only $3,250.00 of the amounts paid to Mr. Mah as damages for costs incurred by Mr. Noh as a result of the accident of March 27, 2004.

FUTURE COST OF CARE

[52] The plaintiff seeks an award for the future cost of acupuncture and consultation with a physiotherapist or kinesiologist in the amount of $1,500.00 to $2,500.00.

[53] Dr. Hirsch stated in his report of May 1, 2008 that “it might be helpful for Mr. Noh to see a physiotherapist or kinesiologist”. I do not consider such a comment to be sufficient to establish a need for Mr. Noh to do so. The fact that Mr. Noh has chosen to see neither a physiotherapist nor a kinesiologist in the five months since Dr. Hirsch made that suggestion persuades me that Mr. Noh does not consider that it is necessary that he do so either.

[54] As for the acupuncture, there is no evidence to establish an ongoing need for such treatments.

[55] I dismiss the claim for future care costs.

SPECIAL DAMAGES

[56] Mr. Noh has been reimbursed for special damages in the amount of $1,964.80.

[57] In addition, he seeks further special damages as follows:

Sorim Acupuncture & Healing Art Ltd. (“Sorim”) for 72 visits	$ 3,270.00
Daniel Acupuncture & Herbal Clinic (Daniel)	$ 385.20 for acupuncture $ 535.00 for herbs
Cost of parking and swimming at U.B.C.	$ 827.05
Metrotown Orthopedic & Sports Physiotherapy Clinic	$ 105.00
Total:	$ 5,122.25

[58] Despite the total for these special damages, the parties agreed that the total unpaid special damages were $4,956.15.

[59] The defendants did not challenge the payments for swimming, but they did challenge the costs paid to Daniel for herbs and all of the Sorim charges. While I accept that Mr. Noh believed that these herbs would benefit him, I find no evidence to warrant the cost of the herbs purchased by the plaintiff as special damages, and I dismiss that claim.

[60] The acupuncture treatments from Sorim began after Mr. Noh experienced the difficulties with his right arm. Prior to those problems, he had attended Daniel for acupuncture in March and April 2004, and then stopped. Mr. Harlos suggested that only one-half of the Sorim acupuncture treatments should be awarded, arguing that at least the remainder were, as indicated by the Sorim records, related to Mr. Noh’s right arm problems. I consider that to be a generous approach to this claim, but I accept that some of the treatments were at least in part necessitated by the motor vehicle accident and adopt the approach to these costs suggested by Mr. Harlos. Having no explanation from counsel as to how they arrived at the figure of $4,956.15, I will simply deduct $535.00 paid for the herbs, inclusive of GST, and a further $1,635.00, representing one-half of the Sorim charges, and award $2,786.15 for special damages.

CONCLUSION

[61] I award damages to the plaintiff as follows:

a) non-pecuniary damages of $35,000.00;

b) past income loss of $8,250.00;

c) special damages of $2,786.15; and

d) court order interest on the past income loss and special damages awards.

For the sake of convenience, I will award interest pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79, on the full amount of these awards commencing one-year after the accident, on March 27, 2005.

“Hinkson J.”

Citation:	*Noh v. Verjee,*
	2008 BCSC 1508