Tag: Wong v. Hemmings

$100,000 Non-Pecuniary Assessment for Shoulder and Knee Injury

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a knee and shoulder injury sustained in two motor vehicle collisions.
In last week’s case (Wong v. Hemmings) the 36 year old Plaintiff was injured in two collisions, the first in 2006 and the second in 2008.  These caused a fairly serious shoulder injury which, despite extensive therapy, did not fully recover and was expected to pose ongoing problems in the Plaintiff’s vocation as a server into the future.  In addition to this, the Plaintiff suffered a knee injury which also lingered on.  In assessing non-pecuniary damages at $100,000 Mr. Justice Fitch provided the following reasons:

[111] In assessing non-pecuniary damages, I have had regard to the following considerations. The plaintiff is a young woman. She has endured 5 1/2 years of significant shoulder and, to a lesser extent, knee pain as a consequence of the two accidents.

[112] She has undergone two injections of anesthetic and corticosteroids into her shoulder and has tried a number of different types of therapeutic interventions to obtain pain relief. Her pain is undoubtedly exacerbated by the weight bearing demands of her position. Despite this, the plaintiff has continued to work as a server because that position affords her the best opportunity to provide for herself and for her daughter.

[113] In October, 2010 plaintiff underwent arthroscopic subacromial decompression surgery on her left shoulder in addition to an arthroscopic procedure designed to reduce pain associated with her biceps tendon. That procedure was conducted as a result of Dr. Regan’s fear that if no intervention was tried, the plaintiff was going to be left with a permanent partial disability that could limit her ability to continue in the workforce given the demands of her job. Dr. Regan was frank in his pre-surgical assessment that if she did not benefit from these procedures, she would likely suffer long-term consequences, including permanence of her pain pattern affecting her shoulder which would limit her from doing repetitive above shoulder height activities or repetitive lifting activities. While the subacromial bursal excision provided the plaintiff with some relief, she continues to experience pain over the biceps tendon which is likely aggravated by her work duties. Dr. Regan concluded that while her left shoulder was improved from its pre-operative status, it would not improve in the future. One further surgical procedure could be performed on the plaintiff’s shoulder but this would require her to be off work for between three and four months. Dr. Regan testified that he would only undertake this procedure if the plaintiff continued to suffer pain associated with the activities of daily living despite quitting her job. Although the arthroscopic surgery was a partial success, the fears expressed by Dr. Regan prior to the surgery have now largely come to pass.

[114] With respect to her left knee, Dr. Regan concluded that the plaintiff was continuing to suffer pain associated with an injury caused by the first accident to her peroneal nerve. He is of the opinion that a cortisone injection is unlikely to help the situation at this time. If the plaintiff’s symptoms worsen over time, a further surgical procedure with a six to eight week recovery period is the only treatment option available to her.

[115] With respect to the plaintiff’s myofascial pain, Dr. Regan expressed the view that while the condition will likely settle, the plaintiff’s recovery will be prolonged and she may be left with chronic pain in the left side of her neck and the trapezius, levitator scapula and paraspinal muscles in her neck and back.

[116] Dr. Anton similarly opines that while the plaintiff had a reasonably good outcome from her shoulder impingement surgery, she is not pain free and has essentially exhausted surgical and non-surgical options for her left shoulder. He concludes that the prognosis for further improvement of her left shoulder is poor as long as she continues in her current work. In fact, he concludes that so long as the plaintiff continues in her current position, she will experience shoulder pain. Even if the plaintiff finds suitable alternative employment, Dr. Anton is of the view that she will probably be at increased risk for episodes of pain in her left shoulder indefinitely. With respect to her left knee, Dr. Anton is of the view that the plaintiff continues to have irritation of the peroneal nerve and that the prognosis for improvement is uncertain.

[117] In short, the injuries suffered by the plaintiff in the two accidents are serious, have caused long-term and ongoing pain which may, insofar as the myofascial pain is concerned, be chronic in nature. Those injuries have not been resolved by various types of surgical and non-surgical treatment. The plaintiff will continue to suffer pain in the future which will be aggravated by the repetitive, weight bearing demands of her job as a server.

[118] Prior to the accidents, the plaintiff was a vigorous, energetic and physically active person who participated in a broad range of sporting activities. Constant pain and sleep deprivation have made her less energetic and much less inclined to participate in the kinds of sporting activities she enjoyed before the accidents. The plaintiff’s continuing symptoms have significantly affected her lifestyle. For an individual who uses physical activity to promote good mental health, the loss to the plaintiff in this regard has been significant.

[119] Perhaps even more significantly, the accidents and the symptoms that the plaintiff continues to experience have caused her to become more socially withdrawn. She is moodier and less patient with others, including with her daughter, Brooke. I find that the accidents have resulted in a significant loss of enjoyment of life and some impairment of the plaintiff’s social relationships.

[120] The plaintiff’s injuries have also taken an emotional toll. The plaintiff has carried the burden of supporting herself and her daughter as a single mother. She continues to work through pain because she feels she has no choice to do otherwise. She faces the stress of an uncertain medical and financial future with the possibility of additional surgical interventions in relation to her left shoulder and left knee.

[121] The accidents have significantly impacted the plaintiff in physical, emotional and social ways. They are likely to have that impact into the future and will certainly persist as long as the plaintiff continues to work as a server.

[122] In all the circumstances, I assess non-pecuniary damages at $100,000.00.

Undeclared Income Compensation and the Reality of Trial Testimony


As previously discussed, while income loss from ‘under the table’ earnings can be recovered in a personal injury claim in BC, doing so often requires testifying to untruthful past tax filings with respect to past earnings.  The papertrail this creates puts plaintiffs with undeclared earnings in a difficult position if they seek to recover damages for their full losses as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Wong v. Hemmings) the Plaintiff was injured in two collisions.  She worked as a server for the Fairmont Hotel.  As with many servers, her income was derived from wages and tips.  Her injuries impacted her vocational abilities and damages were awarded for past and future diminished earning capacity.  In presenting her case the Plaintiff presented evidence as to her actual earnings which differed from her declared earnings to Revenue Canada.  Mr. Justice Fitch summarized this evidence as follows and provided the following comments with respect to her undeclared earnings:

[75] It is noteworthy that the plaintiff was informed by the Fairmont, in writing, in early 2011 that her gratuities from credit card sales alone for 2010 were $30,652.82. The plaintiff was advised by her employer that, “this information may be helpful to you when you are preparing your 2010 tax return”.

[76] The plaintiff testified that she makes about $63,000.00 a year. She said it is her practice to declare about $5,000.00 in tip income each year. She is aware that she is obliged to declare all income, including tips and gratuities, on her tax return. She testified that she was, “following industry standard” in not declaring the full amount of her tips and gratuities. She testified that she does not know anyone in the restaurant service industry who declares the full amount of their tips. Having said that, the plaintiff admitted knowing that failing to declare all of her tips and gratuities was wrong. She testified that she could not have supported herself and her daughter had she declared and been taxed on the full amount of her income. She testified that, consistent with her past practice, it was not her intention to declare the full amount of her tip income on her 2011 tax return…

[125] The defendants assert that the plaintiff should not be granted a past wage loss award that includes undeclared tips. They assert this position to preserve an ability to argue the issue in another forum as counsel for the defendants otherwise concedes that this Court is bound by Iannone v. Hoogenraad (1992), 66 B.C.L.R. (2d) 106 (C.A.), leave to appeal dismissed [1992] S.C.C.A. No. 185, which holds that failure to declare tip income is no bar to the recovery of undeclared tips as past wage loss.

[126] The defendants also submit that the plaintiff has failed to establish what she would have earned in gratuities on her cash sales. As noted above, the Fairmont’s records reflect only the total amount of the plaintiff’s cash sales as a server. Any tip received by a server on a cash sale would be known only to them. The defendants point out that in 2006, for example, and assuming an average 12% tip on cash sales, the tips received by the plaintiff on cash sales represented 8.6% of her total tip earnings. Using this as a baseline, the defendants argue that the plaintiff’s past tip loss should be discounted by 8.6% to reflect the amount of cash tips allegedly lost but not proven.

[127] The defendants are, at least in theory, on firmer ground on this issue. Iannone stands for the proposition that the plaintiff has the burden of leading evidence of past wage loss and that it will be a difficult burden to discharge where there is no confirmatory evidence, such as income tax returns, to establish that the amount claimed would, in fact, have been earned. In this case, however, I am satisfied that the plaintiff has met her burden of proof on this issue. The records of the Fairmont Hotel clearly establish the total of the plaintiff’s cash sales as a server. The plaintiff testified that she would receive, on average, a 12% tip on her cash sales. I accept her evidence on this point.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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