Mangat v. Mott Electric Ltd.

2020 BCSC 512 Mangat v. Mott Electric Ltd.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Mangat v. Mott Electric Ltd., 2020 BCSC 512 Date: 20200403 Docket: M151009 Registry: Vancouver Between: Jaspaul (aka Cindy) Mangat Plaintiff And Mott Electric Ltd. and James Johnston Defendant Before: The Honourable Mr. Justice Myers Corrected Judgment: The text of the judgment was corrected at paragraphs 15, 16, 19, 28, 65 and 69 on May 26, 2020. Reasons for Judgment Counsel for the Plaintiff: Peter Buxton, Q.C. Gurleen Randhawa Counsel for the Defendants: Murray Suderman Lianne Kramchynski Place and Date of Trial: Vancouver, B.C. February 18-21, 24-28 and March 2-4, 2020 Place and Date of Judgment: Vancouver, B.C. April 3, 2020 I. Introduction [1] On occasion, a minor motor vehicle accident can have significant consequences for a plaintiff. This is one such case. [2] On March 6, 2013, Ms. Mangat's right hand was injured when Mr. Johnson backed a bucket-truck owned by Mott Electric Ltd. into Ms. Mangat's vehicle at low speed. Ms. Mangat is a paralegal and the hand injury has affected her ability to work and function in her personal life. This in turn, she says, caused her emotional stress. [3] Most cases come to trial after a plaintiff's injuries have had a substantial period to stabilise. In this case, although the accident was in 2013, Ms. Mangat had hand surgery three months before the trial and there is no direct medical

evidence as to her prognosis. (One reason for the delayed trial date is that a trial was set for last February, but was "bounced" due to the lack of an available judge.) [4] The defendants have admitted liability for the accident. They acknowledge that Ms. Mangat's hand was injured in the accident and has had a negative impact on her work and personal life. However, the parties are far apart on damages. II. Facts [5] Ms. Mangat is 49 years old. She obtained a legal assistant diploma from Capilano College. The professional designation was later changed to paralegal. At the time of the accident she was working as a paralegal at Hamilton Duncan Armstrong and Stewart in Surrey, where she had been working since 2001. [6] Ms. Mangat lives in a family home in Surrey with her husband who is a self-employed process-server and their son who is a student at Simon Fraser University. At the time of the accident, her daughter also lived at home. Mr. Mangat's parents also lived in the family home in a downstairs suite until December 2015 when her mother-in-law moved out and May 2016 when her father-in-law also moved out. [7] Ms. Mangat described her family as a "traditional [East-Indian] cultural family". Prior to the accident, she did most of the housekeeping and cooking. She also did some cooking and some cleaning for her in-laws. She drove her in-laws to their appointments, errands and

social functions. Ms. Mangat became involved with the raising of her nephew (a special needs student) when her sister-in-law died. She assisted with his homework and driving him around. She described herself as his "pseudo-mom". [8] Ms. Mangat also helped her husband with his process serving business by typing affidavits and preparing the invoices. [9] On March 6, 2013 Ms. Mangat was waiting to enter an underground parking lot, the entrance to which was blocked by the truck being driven by Mr. Johnston. Ms. Mangat heard the truck's beeping sound as it reversed. She had her hand left hand on the horn and her right hand on the gearshift preparing to reverse when Mr. Johnston's truck backed into her car. Ms. Mangat said she could not believe that she had been hit and felt pain in her right hand, wrist and forearm. She got out of the car and spoke to Mr. Johnston; she could not write his information down so she asked a nearby transit police officer to take it down for her. [10] Within an hour, Ms. Mangat began to have pain in her right shoulder, right neck and upper back. [11] Although Ms. Mangat still experiences some pain in her upper back and neck, her wrist is by far the more serious injury. I will return to the medical evidence later, but I note here that her condition has been diagnosed as De Quervain's tenosynovitis. Ms. Mangat describes ongoing pain "in the left inside of

my wrist - into thumb and index finger; sometimes other fingers; tightness, stiffness, loss of strength and mobility." It impacts her ability to do her job and perform the tasks at home that she used to do. [12] At Hamilton Duncan, Ms. Mangat worked primarily for Scott Nicoll. His practice involved personal injury and commercial litigation. Initially, Ms. Mangat worked for Mr. Nicoll as a paralegal. By summer 2017, Ms. Mangat moved into an administrative role which involved her managing other paralegals and Mr. Nicoll's practice. [13] The firm's written job description for a paralegal was: · Typing · Filing, answering phones · Scanning, copying · Take notes and prepare memorandums · Handle cold calls from prospective clients · Attend initial interviews with new clients · Prepare chronologies and summarize liability, medical and wage loss records · Drafting of correspondence, pleadings, applications, affidavits, lists of documents and other · documents · Review all incoming correspondence and draft responses · Direct LAAs in the performance of nor-billable work · Meet with lawyers on a regular basis to discuss strategy and receive instructions · Creating precedents · Creating and maintaining (data entry) spreadsheets · Maintain file organization · Maintain limitation dates, bring forward system and court diary · Draft settlement documents, bill of costs, etc . · Handle

associated administrative tasks including billing and clerical related duties [14] However, Mr. Nicoll said this was a generic job description and his practice was electronically based, relying primarily on Amicus Attorney, a software package. Ms. Mangat had to do a lot of keyboarding work. She used Dragon Dictate Speech Recognition until October 2014 when a change in the firm's software platform to one based in the cloud made it incompatible. [15] At the time of accident Ms. Mangat was mostly working on personal injury defence files. She described her duties as including: · Taking notes from clients; · Performing conflict checks; · Getting initial documents from clients; · Preparing memos and scheduling an initial meeting with one of the lawyers; · Opening the file both hard copy and electronic; · Drafting lists of documents for review by a lawyer; · Corresponding with clients and anyone she had had to collect information from; · Preparation of chronologies; · Daily correspondence; · Daily meetings with counsel; and · Drafting initial pleadings. [16] After the accident, Ms. Mangat found it painful typing, handwriting and manipulating her right wrist. She struggled with her work and had to get others to help with some of her tasks. The tasks she was no longer able to do, or only able to do with difficulty for limited periods were: · Writing; · Keyboarding; · Retrieving binder

documents; · Putting binders together and moving things such as files; · Taking notes over the phone; · Taking notes with counsel in room but have to stop; · Stapling; and · Cerloxing. [17] In 2013, Ms. Mangat missed 83 hours of work due to pain or medical appointments. In 2014 she missed 156 hours. Hamilton Duncan entered into a subrogation agreement with Ms. Mangat and continued to pay her salary, despite the time missed from work [18] In 2015 she took a year off, after which she resigned from Hamilton Duncan. [19] In February 2016, Ms. Mangat began work at Panorama Legal LLP in Surrey ("Panorama"), to where Mr. Nicoll had moved his practice. Panorama's system was also cloud-based and therefore Dragon was incompatible, as it was at Hamilton Duncan. [20] The defendants agree that the lost time between the accident and Ms. Mangat starting work with Panorama was attributable to the accident and was reasonable. Beyond that time period, there is no agreement. [21] Ms. Mangat was originally hired at Panorama as a paralegal on an hourly basis. In September 2017, Ms. Mangat was promoted to a Paralegal & Practice Manager at Panorama. In September 2019, Ms. Mangat became a salaried employee earning $52,260 annually. She was expected to work five hours per day, five days a week. Ms. Mangat was not able to work her expected hours. Panorama paid her full wages pursuant to a subrogation

agreement. [22] In December 2019, Ms. Mangat had the wrist surgery that I referred to above. She has still not been able to resume a full workload. [23] Before the accident, the Mangat's played golf and traveled with their children. She said she loved to bowl, run, and participate in a boot camp exercise program organized through her employer. She says she can longer do those. [24] Ms. Mangat and her husband testified that she did 75% of the house work, including the cooking and the cleaning. Mr. Mangat did the maintenance work and they both did the gardening. [25] Post-accident, Ms. Mangat is not able to do a lot of the chores, so housekeepers, Mr. Mangat and the children do the bulk of the house work. [26] Ms. Mangat said that her inability to perform her work and personal tasks affect her emotionally. Ms. Mangat, her husband and sister testified that before the accident she was the "go-to person" of the family. She hosted frequent family functions and, as I noted above, helped look after her in-laws and her nephew. After the accident, she could no longer perform those roles to anywhere near the same extent and became depressed. The witnesses described her as no longer being the same person she was prior to the accident. [27] Her reduced abilities also caused tension with her in-laws, who expected her, as the female, to do the home functions without the assistance she

required from her husband or children. [28] She described how she had an emotional breakdown at work in February 2015, which caused her to tell Mr. Nicoll and the human resources manager at Hamilton Duncan - Ms. Wendland - that she could no longer continue her work. This resulted in her year off, to which I referred earlier. [29] Ms. Mangat adduced a report of a psychologist, Dr. Ingrid Fedoroff. Based on a review of the clinical records and an assessment session with Ms. Mangat, Dr. Fedoroff opined that Ms. Mangat meets the diagnostic criteria for an adjustment disorder with chronic pain and the limitations on her ability to function being the ongoing stressor. The emotional consequences are excessive guilt and shame. [30] Dr. Mitchell Spivak, a psychiatrist, conducted an independent medical examination of Ms. Mangat on October 11, 2018. His opinion was that: At the height of the conflict with her mother-in-law, Ms. Mangat may have met criteria for a mental health diagnosis. The symptoms that she describes during that time would have been compatible with a diagnosis of an adjustment disorder with depressed mood. Since that time, her symptoms have significantly remitted and she is not presently manifesting any frank psychiatric disorders. Dr. Spivak noted that Ms. Mangat's level of impairment in 2015 was likely in the realm of "mild" He stated prognosis is "good". (Supra, page

7, para. 53). [31] In cross-examination Dr. Harmanpreet Dhaliwal stated that she did not refer Ms. Mangat to counselling and would have, if she felt it was warranted. [32] On the evidence of Ms. Mangat and the other witnesses, I am convinced that the accident has caused her emotional harm which has continued until the trial. Even if this is not a "frank psychiatric disorder" as noted by Dr. Spivak, that is not necessary for a plaintiff to recover for psychological injury or emotional harm. III. Medical Prognosis [33] There is no dispute that the accident caused the De Quervain's tenosynovitis in Ms. Mangat's right wrist. This is an irritation of the tendons (extensor pollicis brevis and abductor pollicis longus tendons) that extend from the forearm to the thumb. The tendons pass under another tendon - the extensor retinaculum - that acts as an enclosure or sheath. When the extensor or abductor tendons are inflamed, they have difficulty passing through the extensor retinaculum. The surgery which Ms. Mangat had in December 2019 cut the extensor retinaculum to release the impingement. [34] As I said above, Ms. Mangat testified that the surgery has not improved her pain or mobility, which have worsened. [35] No post-operative opinion was given on the prognosis of the surgery. Rather, I am left to determine the prognosis on the basis of predictions and comments in reports done

before the surgery was performed. Although Dr. Rizwan Mian who performed the surgery was a witness, he had not been asked to prepare a post-surgery report and therefore was not asked his current view on the matter. This is an unfortunate gap in the evidence. The defendants say that Ms. Mangat's chances for full recovery are 66%; Ms. Mangat presents her case on the basis that her condition will not improve. [36] In this regard, Ms. Mangat relies on an October 2018 report of a physiatrist, Dr. Harpreet Sangha. He noted that there was no "silver bullet" for the tenosynovitis and further treatment should be considered supportive as opposed to rehabilitative. He also opined that her condition was complicated by a psycho-emotional component. In response to a question in cross-examination by defence counsel, Dr. Sangha stated that in his ten years of practice, he had not seen surgery result in a complete alleviation of symptoms. [37] However, in a November 2019 report, Dr. Mian discussed the prospect of surgery. He said that there was a 50% chance of the surgery substantially improving Ms. Mangat's condition. No time frame for the improvement was mentioned. [38] Dr. Wells, a plastic surgeon specializing in hand and wrist injuries, noted in a June 2018 report prepared for the defendants, that the surgery is "usually curative in most cases". [39] The surgery was not done with the

expectation that the chances of improvement were minimal. It was done on Ms. Mangat - and is done on others - because it was expected to alleviate tenosynovitis. There is no evidence or allegation that it was done improperly. Ms. Mangat had some issues regarding the stitches which caused her some discomfort but was temporary. [40] I conclude that the probability of Ms. Mangat substantially recovering is 50%. IV. Analysis A. Damages for pain and suffering [41] Ms. Mangat claims $135,000 in general damages. The defendants say the range is $45,000 to $75,000. [42] I have set out Ms. Mangat's injuries and her current condition. I note again that this is a case where the injuries have likely not stabilised before the trial because of her recent surgery. I also note that there is a psychological and emotional component to her injuries and as noted above (para. 32), damages are recoverable for this. [43] Sargison v. Norquist, 2019 BCSC 1386 is a similar case to the one at bar, involving a wrist injury and psychological component. However, the plaintiff in that case had four wrist surgeries versus one here. While there were signs of improvement, the court accepted an opinion that the plaintiff had suffered a significant derangement of the right hand and wrist which impacted basic tasks. The court awarded $125,000. [44] Kellett v. Stam, 2018 BCSC 1127 is another recent similar case with

ongoing hand and back pain and chronic pain. The 61-year-old plaintiff was awarded $135,000. [45] In Kakh v. Josol, 2020 BCSC 286 I dealt with soft tissue back injury to a 46-year-old female plaintiff. While the case did not involve hand injury, the effect of the injury on the plaintiff's function, ability to perform in a job valued by her and pain are similar. I stated that the range of damages was $90,000 to $100,000 and I awarded the plaintiff $90,000. There was no surgery. [46] Allowance must be made for the possibility, as I concluded above, that the surgery will improve Ms. Mangat's condition. [47] In my view an appropriate award for general damages here is $100,000. B. Loss of income earning capacity [48] As I have said, there is no dispute that the accident caused the De Quervain's tenosynovitis. There is also no dispute that the time taken off by Ms. Mangat from the time of the accident until February 2016 (when she began work at Panorama) was justifiable. Therefore, the issue is past loss of income or income earning capacity from February 2016 until the time of trial and future loss. [49] The defendants point to the same factors in support of their position on past and future loss of income. They first raise the issue of the use of Dragon. They point out that Ms. Mangat's hours fell off after Dragon became unavailable in October 2014. They say there is no evidence

that she cannot obtain employment with a firm that uses speech recognition software or obtain employment in another capacity that does not require the extensive use of her hand. The defendants argue that Ms. Mangat suffered no loss of capacity for the contested time period. [50] Mr. Nicoll testified that Dragon was of limited use to what Ms. Mangat had to do. This is because a substantial amount of the data entry was in small segments using the Amicus Attorney programme. He and Ms. Mangat said that Dragon is more amenable to use with Word, where larger blocks of text are entered. On the other hand, Ms. Mangat did say that she experienced more pain when Dragon was no longer available at Hamilton Duncan and that she then reduced her hours from full-time to part-time. [51] Dr. Dennis Magrega, a psychologist who specializes in vocational assessments, tested and interviewed Ms. Mangat. He said the tests showed her to be a hard worker and high achiever. The job of a paralegal was "one of her two best "fits" on the basis of her combination of likes and dislikes." Ms. Mangat brought up to Dr. Magrega the possibility of becoming a certified legal interpreter between Punjabi and English. The information he provided on that possibility was limited and obtained from the web. [52] Ms. Wendland testified that at the time of the accident, 90% of Ms. Mangat's job involved keyboard work. When

asked if she would have hired Ms. Mangat again at Hamilton Duncan, she replied "absolutely - without the injury", and then added she would not have discriminated against her. [53] Mr. Nicoll testified as to how Ms. Mangat's inability to perform her functions have affected his practice. One example was when she missed a billing cycle. He stated that if she is not able to resume work full-time, he will not be able to continue to employ her. Although he did not directly say so, I think it is fair to say that if they had not worked closely for many years in the past, Mr. Nicoll would not have been as accommodating to Ms. Mangat. [54] I do not think there is any question that Ms. Mangat has suffered a loss of income earning capacity, taking into account the oft-quoted factors in Brown v. Golaiy, [1985] B.C.J. No. 31at para. 8: 1. The plaintiff has been rendered less capable overall from earning income from all types of employment; 2. the plaintiff is less marketable or attractive as an employee to potential employers; 3. the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and 4. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market. [55] In Rowe v. Bobell Express Ltd, 2005 BCCA 141 the Court of Appeal put it more succinctly when it

noted that the plaintiff suffered a loss of income earning capacity because he was unable to do many things that, but for his injuries, he could have done to earn income. [56] There is little evidence with respect to alternative work being available for Ms. Mangat, even within the legal industry. Dr. Magrega's focussed on paralegal work and picked up on the possibility of legal interpreter work because Ms. Mangat, without having investigated it, mentioned it herself. [57] There is also no evidence regarding the availability of Dragon at other law firms, whether cloud-based or not. The same applies to other speech-recognition software. [58] While Dr. Dhaliwal did not recall recommending to Ms. Mangat that she take time off work, she stated that the time she did take off appeared to be reasonable. Dr. Mian said the same thing. [59] Ms. Mangat kept track of the hours she took off work due to her pain or medical appointments related to the injury. Based on the hours she would have been expected to work but for the accident and the hours actually worked, her past loss of income is calculated at $109,870 on an after-tax basis, after an attribution for income tax. [60] Ms. Mangat was a credible witness. Her employers (Ms. Wendland and Mr. Nicoll) and her relatives spoke of her strong work ethic and sense of responsibility. There was no inkling of her shirking, or exaggerating her hand

pain and the difficulties it presented. Her work provided her with a sense of self-worth. Simply put, if she could have worked more at her position, she would have done so. She was in a position where her relationship with her employer allowed her a significant amount of accommodation. I do not think it was unreasonable for her to carry on at Panorama until the surgery. [61] I therefore conclude that she is entitled to her calculated loss of past income of $109,870. This figure is after tax and includes court order interest. [62] With respect to future income loss, Ms. Mangat has calculated her claim on two bases. The first is that she has no residual work capacity. Darren Benning, an economist who prepared a report on her behalf, calculates that claim at $1,071,408 to age 65. [63] In my view, the assumption that Ms. Mangat is unable to earn any income is belied by her history after the accident and her personality. The proposition is untenable. [64] The plaintiff's alternate loss calculation is based on the difference between working her current schedule of five hours per day, two days per week and working a full-time, 37-and-a-halfhour week, to age 65. Mr. Benning calculates the net present value of that loss at $782,127.84. [65] The defendants, as I have said, argue that there is no loss of future earning capacity. Alternatively, they say that the capital asset approach is

more appropriate and that Ms. Mangat's loss should be valued at $10,920. This takes into account the contingencies of her hand improving and being able to work with speech recognition software or finding alternate employment. [66] If the earnings approach is adopted, taking into account the same contingencies, the defendants say the net present value of Ms. Mangat's loss is $98,820. They rely on an opinion of Mark Szekely, an economist. [67] I agree with the defendants that this claim is not capable of precise calculation and the capital asset approach is the preferred one. I will therefore not go into some of the differences in approach between the two economists because they are not relevant to the capital asset analysis. [68] I also agree with the defendants that there is a likelihood that Ms. Mangat's hand will improve, which I have assessed above at 50%. [69] In terms of work possibilities, although there are gaps in the evidence, Ms. Mangat is a highly intelligent and capable individual. She is already performing some administrative functions. Even with the current state of her hand, there is nothing to say that she cannot take on a different, more administrative, role at either her current law firm or a different, and perhaps, larger firm. Ms. Wendland, for example, started as a secretary (as it was then called) and moved into administration. Ms. Mangat might find work

with a firm whose technology is compatible with Dragon or other speech recognition software. As the defendants point out, Ms. Mangat worked more than 25 hours per week for substantial periods of time after the accident. [70] There are also other contingencies to take into account, such as whether Ms. Mangat would have worked full time apart from the accident and whether she would have worked to age 65. [71] I determine that the capital value of Ms. Mangat's loss of future income earning capacity is to be assessed at $300,000. C. Cost of Future Care [72] Teresa Wong, an occupational therapist, prepared a cost of future care report. She provided costs for the following: · Hand therapy; · Occupational therapy; · Psychological counselling; · Pain management programme; · Advil; · House cleaning and yard work services; · Meal preparation; · Some minor kitchen tools, such as an electric can opener; · Ergonomic office equipment; and · Dragon software and microphone. [73] Some of the items are one-time and some are ongoing. Mr. Benning prepared a report reducing the costed items to a net present value of $204,241. [74] Cost of future care items are only recoverable if they are medically justifiable and there is a reasonable possibility that the expenses will be incurred. Further, the claim must be reasonable. [75] From March 2013 to the trial, Ms. Mangat has taken 34 sessions of hand

therapy, with a substantial gap between February 2014 and November 2017. When questioned on the possible effect of this gap, Dr. Mian commented that a major part of hand therapy was training the patient to do the same exercise at home. I would therefore expect any further hand therapy requirements to be minimal. I conclude Ms. Mangat should recover $500 for this. [76] Psychological counselling is not something Ms. Mangat has done or requested a referral for. She mentioned it was not something accepted in her culture. I think there is little likelihood of her availing herself of this in the future. [77] The defendants agree that some occupational therapy is merited. I agree with their submission that Ms. Mangat's estimate of the requirement of what she will use is excessive and that her claim should be valued at $700. [78] A pain management program has been recommended for Ms. Mangat. It is something she will hopefully and likely take advantage of. The cost of this is approximately $15,000 and I conclude she ought to recover that amount without a deduction for a contingency for improvement because it is something that she can enroll for now. [79] With respect to house cleaning, yard work and meal preparation, I prefer to deal with these as part of the plaintiff's loss of housekeeping capacity claim in order to avoid duplication. [80] Dealing with the kitchen and ergonomic office

furniture, as with most cost of future care reports, the report does not account for the fact that Ms. Mangat would require or was already using similar "non-specialized" items to perform the same functions as the recommended items. For example, even if the accident had not happened, Ms. Mangat would require a desk chair for the work she does at home. The claim should therefore to be limited to the cost differential between a regular desk chair and an ergonomic one. That is not set out in the report. [81] The same would apply to the kitchen items. Nevertheless, the defendants concede a claim of $468 less contingencies. I would therefore award $250. [82] The Dragon software would be justifiable and reasonable, however Ms. Mangat already has it and, in any event, has not used it for some time. [83] In conclusion, I award Ms. Mangat $16,450 for future care. D. Loss of housekeeping capacity [84] Ms. Mangat says she has trouble doing the housecleaning and cooking. Her main difficulty with cooking is chopping. She also has difficulty carrying the laundry. She testified that her husband and children have assisted her to complete those chores, and her sister has brought her home-cooked dinners. [85] Regarding lawn care, she and her husband testified that they used to do that together. Her husband does that alone now. [86] Ms. Mangat has clearly suffered a loss of housekeeping capacity.

In terms of how to value the loss, the defendants point out that from March 2013 to date, Ms. Mangat incurred $4,548.75 for housecleaning expenses and no yard work expense. Taken to age 65 (when her retirement is anticipated to reduce the aggravation of her hand injury) this would result in a net present value of $10,000. [87] With respect to cooking, Ms. Mangat has made an in-trust claim for her sister, who makes dinner for Ms. Mangat and drops it off at her home, three nights a week. Ms. Mangat submits that she ought to be awarded what would appear to be the arbitrary amount of $20,000 for this. In my view this should be dealt with as part of Ms. Mangat's loss of housekeeping capacity claim, rather than an in-trust claim. [88] Any claim for loss of housekeeping capacity must take into account the major contingency that Ms. Mangat's condition will improve. [89] Taking into account the relevant contingencies, I conclude that an award of $12,000 is appropriate loss of housekeeping capacity. E. Special Damages [90] The parties are agreed on all items of claimed special damages except for three items. [91] One of these is $33 for a dumbbell set. (The parties ought to have been above to agree on this, given the amount.) There does not appear to be any recommendation for this, so I do not allow it. [92] Ms. Mangat had three massage sessions for her lower back. However, the accident

did not cause lower back issues, so there is no justification for that. [93] Lastly, there is a claim for $1,918.75 for housekeeping expenses. Having concluded that Ms. Mangat has suffered a loss of housekeeping capacity, I think she is entitled to have engaged housekeeping services and to be compensated for that. [94] I will leave it to counsel to make the necessary adjustments to arrive at the final number. V. Costs [95] If necessary, submissions on costs may be made in writing on a schedule to be agreed by counsel. "E.M. Myers J."