Collos v. Gibson Date:, 2003 BCPC 249

Citation: Collos v. Gibson Date: 20030320 2003 BCPC 0249 File No: C2730 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DAVID COLLOS CLAIMANT AND: JEROME GIBSON DEFENDANT EXCERPT FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. CHEN Counsel for the Claimant: P. Bisceglia Counsel for the Defendant: M. Martin Counsel for : Place of Hearing: Port Coquitlam, B.C.

Date of Hearing: March 20, 2003 Date of Judgment: March 20, 2003 [ 1 ] THE COURT: This is a claim by the claimant for non-pecuniary damages, loss of income and special costs arising from a motor vehicle accident between the claimant and the defendant on June 16th, 1999. Liability is admitted by the defendant. The issues are causation and quantum. [ 2 ] The accident was a classic rear-ender/whiplash-injury accident at an intersection.

The damage to the vehicles was slight: about $300 to the defendant's vehicle and about $700 to the claimant's vehicle. [ 3 ] The claimant's evidence is that he was 75 percent recovered by October 1999, recovered sufficiently to work without difficulty by December 1999, and completely recovered by January 2000. The claimant saw a doctor about his injury three times: June 17th, 1999 or the day after the accident, July 3rd, 1999, and October 19th, 1999. The October 19th, 1999 entry in the doctor's clinical records states: "Physio from late June and July.

Feeling well," and, "Low back pain much better now." The claimant, on the referral of his doctor, also attended physiotherapy sessions on July 14th, 1999, September 28th, 1999 and October 5th, 1999, and massage therapy from November 10th, 1999, which continued after the claimant says he was fully recovered. The entry on the doctor's clinical records for October 19th, 1999 says: "First full week back to work last Monday, October 12th, 1999.

Part-time in July and June, supervising and light work." The claimant's evidence is that he tried to go back to work full time after October 12th, 1999, but when the pain flared up, he would have to take a few days off. He insists that he was only able to work at most three days per week until December 1999. [ 4 ] I am satisfied that the claimant was injured as a result of this accident and that his symptoms continued to some extent until December 1999. I find that the severity of the symptoms decreased to the point that he was able to work full time from at least October 12th, 1999 and possibly earlier.

He acknowledged in his evidence that he never stopped working after this accident. In the claimant's statement to ICBC he crossed out the part that said he was able to supervise work, and in his evidence the claimant denied that he supervised work for others. However, the doctor's notes from the claimant's clinical records confirm that he was doing light work and supervising after the accident during June and July.

I am somewhat sceptical of the degree of severity of the claimant's injuries for reasons that follow below in my discussion of the wage-loss issue. [ 5 ] I award the claimant non-pecuniary damages in the amount of $3,000. [ 6 ] I also award special costs in the amount of $104.57 for massage therapy costs and $60 for physiotherapy costs.

[ 7 ] The most contentious issue at trial was that of wage loss alleged by the claimant. Mr. Collos is a self-employed tile setter. The only evidence produced by the claimant on this issue, besides that of the claimant himself, was from Mr. McDonald, the principal of McDonald Flooring. He testified that he had given his tile-setting work exclusively to the claimant for the past 10 years, except for the six months after the accident, when the claimant told him that he was unable to work because of his injury. Once the claimant advised him that he was fit enough to work again in December, Mr.

McDonald, again, gave all of his work to him. Mr. McDonald estimated that the amount of work he gave to other tile setters because Mr. Collos was unable to work amounted to between approximately 4,000 and $5,000. Mr. McDonald arrived at his estimate by taking half of the annual payments he had paid in 1998 and in 2000, the year before and the year after the accident. From January to June, he had paid about $1,500 for Mr. Collos' services. In cross-examination, Mr. McDonald stated that Mr.

Collos was always available to do his work, and that he could count on him to turn down work provided by others to do his work. [ 8 ] The October 19th, 1999 entry in the clinical records of the claimant's doctor states: "First full week back to work last Monday, October 12th, 1999. Part-time in July and June, supervising and light work." [ 9 ] The claimant, in his evidence, confirmed that he did indeed do tile-setting work in the six months after the accident.

His evidence was that he had to cut back to three days per week because of the pain and discomfort of his injury and was for that reason unable to do any of Mr. McDonald's work. However, the claimant's gross earnings for 1999, as declared in his tax returns, totalled over $57,000. The claimant's reported earnings for 1998, the year prior to the accident, were $32,853. For the year 2000, which is the year after the accident, his earnings were $33,218. In response to a question from the court, the claimant testified that two-thirds of his 1999 earnings were earned after the date of the accident.

In other words, in the six months following the accident, when the claimant says he had to cut back to three days per week because of the pain and suffering resulting from the accident, he earned more during that half year than he did for the entire year both the year before and the year after the accident. [ 10 ] The claimant's evidence is that he would have been able to do that and much more, including work Mr. McDonald would have given him, had he not been injured. I am sceptical of that evidence. I find that my scepticism is exacerbated in no small measure by the fact that the claimant obviously misled Mr.

McDonald about the extent of his injury. In answer to another question from the court, the claimant acknowledged that some of the work he accepted during the six months after the accident was more lucrative than the work that was offered by Mr. McDonald. It would have to have been for him to have achieved two-thirds of $57,000 during those last six months. I am left with the inescapable conclusion that the claimant lied to Mr. McDonald to avoid doing his work in order to accept more lucrative work from other sources. There is no evidence that the claimant was not too injured to work for anyone other than Mr.

McDonald. There is no evidence to show that the claimant was available to do the work that Mr. McDonald had to give him when it was available. How could he be available when he had deliberately left Mr. McDonald with the understanding that he was unable to do any work at all for the six months following the accident? The claimant was willing to lie to a man who had been a loyal supporter and supplier of work to him for over 10 years to further his own financial self-interests.

I am left with an unfavourable impression of the claimant's credibility in this regard. [ 11 ] The onus is always on the claimant to establish his claim. I am not convinced on a balance of probabilities that the claimant has lost any income as a result of this accident and that portion of his claim is dismissed. That is it. [ 12 ] MR. BISCEGLIA : Your Honour, with respect to the disbursements, I am not sure -- [ 13 ] THE COURT : Oh, sure. [ 14 ] MR. BISCEGLIA : I had given my friend a copy of this at the trial, and I have a copy for Your Honour. [ 15 ] THE COURT : Okay. Can I take a look? [ 16 ] MS.

MARTIN : Your Honour, with respect to any disbursements, the usual order that goes is simply that the claimant is entitled to disbursements, and then counsel discuss those amongst themselves. And if they can't resolve it, then they come back and they address that issue. I told my friend that I did read his list of disbursements, but that I don't have instructions from the adjustor on this point. So I am not in a position to agree or disagree with them at this time. [ 17 ] THE COURT : Mm-hmm. [ 18 ] MS.

MARTIN : And, in fact, I have never actually spoken to them at the conclusion of a trial (indiscernible) almost invariably as though it were after the fact. [ 19 ] THE COURT : Yes, but they look pretty ordinary to me. I mean, the court costs are pretty well a given. $156, that is for the filing and the service fees probably. And then there is other agent's fees. It is only $338.35. [ 20 ] MS. MARTIN : Yes, it is a very, very small bill, Your Honour, yes. [ 21 ] THE COURT : Yes, I am inclined to allow it. [ 22 ] MR. BISCEGLIA : Thank you, Your Honour. [ 23 ] THE COURT : All right.

Is there anything else? [ 24 ] MR. BISCEGLIA : No, Your Honour. [ 25 ] MS. MARTIN : No, thank you. [ 26 ] THE COURT : All right.

[ 27 ] MS. MARTIN : Thank you, Your Honour. [ 28 ] THE COURT : Thank you. [ 29 ] MS. MARTIN : Thank you. [ 30 ] MR. BISCEGLIA : Thank you. (EXCERPT CONCLUDED)