



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Li v. Newson,









2013 BCCA 29




Date: 20130124

Docket: CA039525

Between:

Jiuwen Li

Respondent

(Plaintiff)

And

Jason Robert
Newson

Appellant

(Defendant)




Before:



The Honourable Chief Justice Finch





The Honourable Madam Justice Saunders





The Honourable Mr. Justice Groberman




On appeal from: 
Supreme Court of British Columbia, November 5, 2011
(
Li v. Newson
, New Westminster Docket M107521)




Counsel for the Appellant:



M.H. Wright





Counsel for the Respondent:



R. Marcoux

M.J. Neathway





Place and Date of Hearing:



Vancouver, British
  Columbia

January 9
th
,
  2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 24
th
,
  2013









Written Reasons by:





The Honourable Chief Justice Finch





Concurred in by:





The Honourable Madam Justice Saunders

The Honourable Mr. Justice Groberman














Reasons for Judgment of the Honourable
Chief Justice Finch:

[1]

The defendant appeals from the judgment of the Supreme Court of British
Columbia following a trial by judge and jury, at which the jury held the
defendant liable to the extent of 75% for a motor vehicle accident which
occurred on 16 April 2007, and awarded damages to the plaintiff which
totalled about $640,000, which after reduction for the plaintiffs contributory
negligence of 25%, came to something in excess of $450,000.

[2]

On this appeal, counsel for the defendant contends that the plaintiff
failed to prove any fault on the defendants part, and that holding him 75% to
blame for the accident amounts to a grave injustice, and a perverse verdict.

[3]

The defendant also challenges the damages awarded for loss of future
earning capacity, assessed by the jury at $330,000, and for the cost of future
care, which the jury assessed at $45,000.

[4]

The motor vehicle accident occurred at the intersection of Boundary Road
and Vanness Avenue in Burnaby at about 6:20 p.m. on 16 April 2007.  The
plaintiff was riding a bicycle eastbound on Vanness, crossing the intersection
towards the northeast corner of Vanness and Boundary.  The defendant was
proceeding north on Boundary.

[5]

The intersection is governed by an electric traffic control signal.  As
the defendant approached the intersection, he changed lanes from the centre
northbound lane into the curb lane.  He passed two lanes of stopped or slowing
traffic to his left, just as the light for northbound traffic turned green, and
he proceeded into the intersection at a speed some witnesses estimated to be
about 50 kilometers per hour.

[6]

The defendant struck the plaintiff and his bicycle near the north
crosswalk on Vanness, when the plaintiff was about three-quarters of the way
across Boundary.

[7]

The plaintiff sustained serious injuries as a result of the collision. 
As is not uncommon in cases of this nature, there was conflicting evidence as
to exactly when the light changed to green for northbound traffic, and the
positions of the bicycle and the defendants vehicle at relevant times.

[8]

What is clear is that on all the evidence it was open to the jury to
find that the plaintiff was well into the intersection when the defendant
entered on the green light, and that the defendant was passing stopped or
slowing traffic to his left.

[9]

The defendants factum is replete with references to some of the
evidence favourable to the defence case.  However, the issue as to liability
must be decided on the basis of whether there was any evidence on which a
properly instructed jury could make the findings it did.  In my view there is
no doubt that there was such evidence.

[10]

Counsel for the defendant has not identified any error in the charge by
the judge on the issue of liability.  In my respectful view, that part of the
charge fully and fairly explains the applicable principles and legal rules to
be applied.

[11]

There is no basis on which this Court could interfere with the jurys
finding of negligence on the part of the defendant, or on its apportionment of
fault.  The appeal as framed by counsel for the defendant is essentially an
invitation for this Court to retry the facts, which of course we may not do.

[12]

Similarly, the appeal against the award for loss of future earning
capacity is without merit.  The plaintiff suffered many serious injuries in
this accident including compression fractures to two vertebrae, mild traumatic
brain injury with postconcussive symptoms, including headaches, dizziness and
problems with concentration and memory.

[13]

Although the plaintiff appears to have shown a positive attitude
throughout, and returned to work part-time three months after the accident, he
was still not working full-time almost two years later.  His employer has not
considered him for important roles he would otherwise have been eligible for,
because of concerns that he may not be capable of handling longer days and more
stress because of his limitations.

[14]

The plaintiff was 41 years of age at the time of the accident and held a
masters degree in business administration.

[15]

The defendant has not identified any error in the judges charge to the
jury on the assessment of damages for loss of future earning capacity, and
there was evidence on which the jury could properly base its award.

[16]

I would dismiss the appeal against this head of damage.

[17]

As to the award for cost of future care, Mr. Marcoux, counsel for the
plaintiff, said that although there was evidence that the plaintiff would
require care in the future, he candidly conceded that there was really no
evidence as to its cost or duration.

[18]

I do not consider that the award for cost of future care can be
sustained, and I would set it aside.

[19]

Except for the cost of future care issue I would otherwise dismiss the
appeal.  As almost no time was spent on the cost of future care question during
oral argument, and scant attention was given to it in both parties factums, I
would dispose of the appeal, as indicated, with costs to the respondent.

The Honourable Chief Justice Finch

I Agree:

The Honourable Madam Justice
Saunders

I Agree:

The Honourable Mr. Justice Groberman


