Judge finds the defendant 100% liable and awards $1.8 million to the Plaintiff, despite pre-existing conditions.
Cheng v. Mangal 2021 BCSC 954
The Reasons for Judgment of The Honourable Madam Justice Gerow were given on May 19, 2021, at Vancouver, British Columbia.
The plaintiff, Cheng Cheng, was involved in a motor vehicle accident on November 2, 2016. She seeks damages for the injuries she alleges she suffered in the accident. Ms. Cheng was 46 years old at the time of the accident.
The defendant denies that he is fully responsible for the collision and submits that liability should be apportioned equally. The defendant concedes that the plaintiff sustained a substantial exacerbation of previous physical and psychological complaints as a result of the accident. There is no issue that the plaintiff is disabled from employment, and has sustained significant changes to her personality, cognition and her ability to function. However, the defendant argues that the plaintiff’s pre-existing condition and residual capabilities must be considered in any award for her injuries.
The Plaintiff and defendant gave different versions of how the crash occurred. The police attended at the scene and administered two breathalyzer tests to the defendant. A fail was recorded both times. The defendant’s blood alcohol concentration was between .06 and .099. Madam Justice Gerow stated “In my view, the defendant’s credibility is in issue.” The defendant’s testimony on several different issues was either inconsistent or did not make sense. She found the defendant wholly at fault for the accident.
The Plaintiff’s family doctor, Dr. Adam Chang, prepared a report and testified. He opined that the plaintiff’s concussion/closed head injury, concussion related symptoms and soft tissue injuries were all a direct result of the accident. He also diagnosed PTSD and noted that she has been quite disabled from general function and employment due to her severe physical and psychological symptoms. Her prognosis is poor and it is unlikely that she will be able to drive safely or participate in any employment in the future.
Dr. Neville Schepmyer, treating neurologist, diagnosed a mild traumatic brain injury (MTBI) as a result of the collision. He noted that her headaches fulfill the diagnostic criteria for migraines. His prognosis for further recovery is guarded.
Dr. Soma Ganesan, Psychiatrist, testified that, in his opinion, as a result of the accident, the plaintiff’s psychological difficulties have been aggravated. As of October 23, 2020, the plaintiff continued to suffer from PTSD with ongoing moderate symptoms, major depressive disorder, moderate to severe with associated features of anxiety, and a MTBI as well as cognitive deficits. Dr. Ganesan went on to say that “If there is no effective intervention to assist her and no findings to explain the pain, the plaintiff would meet the criteria for a diagnosis of Somatic Symptom Disorder. Somatic Symptom Disorder is a new diagnosis in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) to describe people with ongoing pain symptoms and associated psychiatric symptoms.”. Dr. Ganesan does not expect any further improvement in her psychological symptoms, however treatment would prevent her symptoms from getting worse. In Dr. Ganesan’s opinion there is no possibility of the plaintiff returning to any employment.
Madam Justice Gerow found that “the medical expert evidence, and the evidence of the plaintiff and her family and friends supports a finding that the accident has had a very profound effect on the plaintiff’s mental and physical capabilities. She can no longer care for her family, drive, or enjoy her pre-accident activities. The evidence is that the plaintiff’s personality has changed, and she has become obstinate and irritable. As a result, her relationships with her family members and friends are strained.” The Court also found that the medical evidence supports the finding that the plaintiff will not be able to return to work in the future.
In summary, Madam Justice Gerow awarded non-pecuniary damages in the amount of $225,000.00; Past income loss – $214,927.00; Loss of future income earning capacity – $750,000.00; Loss of housekeeping capacity – $50,000.00; Cost of future care – $592,758.00 and Special damages – $47,883.24
for a total award of $1,880,568.24 plus costs.
For further analysis and reporting of the decision please download the linked PDF.