IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100104

Docket:
M091745

Registry: New Westminster

Between:

Andrzej Szymanski

Plaintiff

And

Donald Morin and Longhouse Ministry
Society

Defendants

Before: The Honourable Madam Justice Ker

Reasons for Judgment

I.        Introduction

[1]            
The plaintiff, Andrzej Szymanski, claims damages
for personal injuries he sustained in a motor vehicle accident on December 7,
2004 (the “accident”) when he was rear-ended by Mr. Morin, a defendant in
these proceedings, while stopped at a red light at Expo Boulevard and Davie
Street in Vancouver, British Columbia.

[2]            
The defendants admit liability but dispute the
issue of causation and the amount of damages claimed.

[3]            
Mr. Szymanski, who at the time of trial was 55
years old, is self-employed as a hardwood floor installer and had been working
in this capacity for at least 14 years when the accident occurred.  Before the
accident Mr. Szymanski was an energetic, hard working man who enjoyed his chosen
occupation, took pride in his work and led a physically active lifestyle.

II.       Issues

[4]            
The issues on this trial can be distilled to the
following:

1.       Has the
plaintiff established on a balance of probabilities that the accident caused
the soft tissue injuries to his neck which manifests in pain in that area and
the upper left trapezius muscle?

2.       Is there any
evidence to support the defence proposition that the degenerative changes to
the plaintiff’s cervical spine at the C5-6 and C6-7 level became symptomatic as
a result of the accident such that this is the cause of the plaintiff’s
continuing neck and trapezius pain?

3.       If the accident
is the cause of the plaintiff’s injuries, including the continuing neck pain
and associated symptoms the plaintiff is still experiencing, what damages
should the plaintiff receive?

III.       Position of the Parties

[5]            
Mr. Szymanski contends that as a result of the
accident, he sustained soft tissue injuries to his neck and that as a result of
this, pain radiates into the mid trapezieus line of his upper back on the left
side of his body. Four years after the accident Mr.
Szymanski claims he continues to suffer from chronic neck pain on the left side
and that it still radiates into his left upper trapezieus muscle, albeit the
pain is far less intense than it was immediately after the accident and the
three years following the accident.

[6]            
Mr. Szymanski has continued to work in his own
business as a hardwood floor installer but does so working through the
continuing dull pain in order to provide some measure of financial stability
for himself and his family.  He claims he is less effective in the work he
does, taking longer to complete his jobs, and that he experiences fatigue and
increased pain as a result of his work and the ongoing nature of his soft
tissue injuries.

[7]            
Mr Szymanski claims damages for pain and
suffering, past income loss, loss of opportunity, loss of future income earning
capacity, cost of future care and special damages for past cost of care.

[8]            
The defendants accept that Mr. Szymanski was
injured in the accident but contend that it simply revealed an underlying
degenerative condition in his cervical spine that would inevitably have become
symptomatic and that this condition was in no way caused or exacerbated by the
accident.  They further argue that because the plaintiff has experienced
irregular symptoms there is insufficient proof to link his continuing claims of
neck and upper back pain to an accident that most people would recover from swiftly,
especially when considered in light of the objective evidence of an ongoing
organic degenerative condition that could be responsible for his continuing
symptoms.  The defence argues that the existence of degenerative changes in the
cervical spine at the C5-6 and C6-7 level, as evidenced in a radiograph report
summarizing the results of x-rays taken on the day of the accident, is the
cause of the persisting neck pain that the plaintiff continues to experience to
the present day.

[9]            
In the alternative, the defendants argue that
the plaintiff experienced only a mild soft tissue injury that was entirely
resolved within two years, by the time Mr. Szymanski was assessed on June 7,
2007, by Dr. Dommisse, an orthopaedic surgeon retained by defence counsel to conduct
an independent medical examination.

[10]        
In sum, the defendants argue that if Mr.
Szymanski is entitled to any award for pain and suffering, it should be a
modest award, the injury having completely resolved within two years, and
special damages.  The defendants argue Mr. Szymanski has suffered no other form
of loss.

IV.      Evidentiary Synopsis and
Findings from the Evidence

A.       Pre-accident Condition

1.       The
evidence of Andrzej Szymanksi

[11]        
Mr Szymanski is 55 years old.  He was born in
Poland and immigrated to Canada approximately 16 years ago.  Before leaving
Poland he completed high school and a mechanics course and served three years
in the Polish military.  Before moving to Canada he worked as driving
instructor and a mechanic and taught motor vehicle mechanics courses.  Upon his
arrival in Canada Mr. Szymanski worked in a variety of positions including as a
deck hand on fishing boats, in the forestry industry and at a recycling
centre.  As most of these jobs caused him to be away from his family for longer
periods of time than he liked, Mr. Szymanski searched for another career.

[12]        
Approximately 14 years ago Mr. Szymanski started
to work as a hardwood floor installer and was employed for at least two years
by Key West Hardwood Floors.  About 10 years ago Mr. Szymanski started his own
hardwood floor installation business and has worked as an independent
contractor in that capacity ever since, obtaining subcontracts from a variety
of companies. 

[13]        
On July 22, 2003, Mr. Szymanski injured his
lower back in a work related accident when he mishandled a 50 kg bundle of
hardwood flooring.  Mr. Szymanski missed about five weeks work as a result of
this Worker’s Compensation claim and then returned to work on a part time basis
on August 27, 2003 and worked in this fashion for one more month.  Mr.
Szymanski returned to full time employment in early October 2003.  Once this
lower back injury was healed and Mr. Szymanski had returned to work he had no
further difficulty with his lower back, notwithstanding his physically demanding
profession.  I accept that Mr. Szymanski had completely recovered from his
earlier lower back injury by the time of the accident on December 7, 2004, and
that the lower back injury was in no way aggravated by the accident or that the
injuries from this work related accident had anything to do with contributing
to the injuries he sustained in the motor vehicle accident.

[14]        
Prior to the accident, Mr. Szymanski had no
health problems or pain in the area of his neck or upper left trapezius muscle
and these areas were not bothered by his work.  He had no difficulty performing
his work as a hardwood floor installer.

[15]        
In terms of recreational activities, prior to
the accident Mr. Szymanski was very physically fit and an avid outdoor
enthusiast who hunted, hiked in the mountains, canoed, swam, mountain biked and “raced with his dog” at
every opportunity when out on walks.

[16]        
Mr. Szymanski assisted with a variety of
domestic chores around the family home including dishwashing, vacuuming,
cutting the lawn and was actively involved in renovating the family home, a
“fixer upper” purchased in 2002.

[17]        
Mr. Szymanski’s 2004 tax return discloses a
reported gross business income from his hardwood floor installation business of
$47,381.  In 2001 he earned a gross business income of $36,390. In 2002 he earned a gross business income of $39,522.  In 2003 he
earned a gross business income of $40,959.  In those
years both the economy and construction work continued to improve and increase.

[18]        
Mr. Szymanski estimated that, before the
accident, he worked between 40 and 50 hours a week, allocated over a 5 day work
week, sometimes working on Saturday. He was unable to provide anything more
specific or detailed than this anecdotal estimation of his work hours. 

2.       The evidence of Anna Szymanksa

[19]        
Anna Szymanska, Mr. Szymanski’s wife of almost
30 years, testified about her relationship with the plaintiff, her observations
of her husband’s work habits, housekeeping duties and social and recreational
activities both prior to and since the accident.

[20]        
Mrs. Szymanska indicated that prior to the
accident her husband generally worked a 10 hour day as a hardwood floor
installer, although he would sometimes work longer in order to finish a job. 
In terms of recreational activities, Mr. Szymanski was an avid outdoors man who
enjoyed hiking, biking, canoeing and hunting.  The couple enjoyed socializing
with their friends and entertaining in their home.  In 2002 the couple bought a
home that required major renovations.  Prior to the accident Mr. Szymanski was
taking care of this portion of the household duties along with other domestic
duties such as vacuuming, helping in the kitchen and doing the dishes.

[21]        
Mrs. Szymanska testified that her husband had
planned to earn enough money during his working career in the hope that he
could purchase a bed and breakfast or a small campground to run during his
retirement. 

3.       The evidence of Mr. Szymanski’s children

[22]        
Mr. Szymanski’s daughter, Dominica, and son,
Lucas, both testified as to their observations of their father’s pre and post
accident condition.  In terms of pre-accident condition, both children recalled
their father as an avid outdoor enthusiast and hard worker.

[23]        
Dominica Szymanska testified that she lived with
her parents until February 2008.  She works as a behaviour analyst with
children diagnosed with autism and Asperger’s syndrome and related disorders. 
Prior to the accident her father had no serious health concerns, he was very
active as an outdoorsman and worked long hours as a hardwood floor installer. 
Ms. Szymanska used to engage in many outdoor activities with her father,
including hiking, canoeing and biking. Prior to the
accident her father was a happy, outgoing and social individual, who enjoyed
attending and hosting social gatherings.

[24]        
In cross-examination, Ms. Szymanska thought that
her father would try to go canoeing almost every weekend and some evenings in
the year prior to the accident.  She did not recall, however, that her father
sustained a back injury in 2003, the year before the accident.  Although she
could not give an exact estimate of the number of days that her father came
home early from work before the accident, it was Ms. Szymanska’s recollection
that prior to the accident her father very infrequently arrived home by 3 or 4 p.m.
in the afternoon.

[25]        
Lucas Szymanski testified that before the
accident he assisted his father with his work, mainly in the summer or when
school was out, by carrying various tools and items to and from his father’s
vehicle and by assisting with the pre-assembly work before his father actually
started to install the floors.  Mr. Szymanski outlined that before the accident
his father was a perfectionist and a very diligent, hard worker with steady
work who never complained about his job.  His father had no difficulty in doing
his work before the accident.  When he was working with his father, Lucas
Szymanski recalled that the day began at about 7:00 a.m. with 40 minutes of
packing the tools and equipment into his father’s car, then driving to the job
site, and preparing and then installing the flooring.  The day usually ended
between 5:00 and 6:00 p.m. when they arrived home and had to unpack all the
tools and equipment from the vehicle.  Lucas Szymanski recalled his father
usually worked five days a week before the accident for about 10 hours a day.

[26]        
Lucas Szymanski had a similar relationship as
his sister in respect of his father’s enthusiasm and passion for outdoor
activities prior to the accident.  He recalled his father having a lot of
energy and spontaneity to do any sort of outdoor activity.  Prior to the
accident, Lucas Szymanski enjoyed canoeing, mountain biking, hunting and hiking
in the mountains with his father.  In addition to his father’s avid outdoor
activities, Lucas Szymanski recalled that prior to the accident his father was
fairly social and enjoyed having visitors to the family home.

B.       The Accident

[27]        
Mr. Szymanski testified that on December 7,
2004, at about 2:30 p.m. he had finished work for the
day and was heading home after having done some Christmas shopping in the
downtown area of Vancouver.  Mr. Szymanski, who was driving his 1996 Suzuki
Sidekick Sport Model 4×4, was stopped at a red light on Expo Boulevard at the intersection with Davie Street when he was rear-ended by a large van driven by the defendant, Mr.
Morin.

[28]        
Mr. Szymanski was wearing his seat belt and his
head rest was properly adjusted.  His head was turned to the left, watching
pedestrians crossing the street, when the collision occurred.  Mr. Szymanski
had no warning of the impact and was completely unprepared for the force of the
collision.

[29]        
Mr. Szymanski recalled feeling in shock after
the impact but told the attending police officer that he felt he could drive
home and did not need to take an ambulance to the hospital.

[30]        
The point of impact occurred at the rear bumper
and spare tire area of Mr. Szymanski’s vehicle.  The force of the
collision was sufficient enough to shatter the window in the rear door of his
vehicle and damage the transmission mount to the frame of the vehicle.  When
the vehicle was first repaired it did not fix the shake and vibration in the
manual transmission, which necessitated a second repair.  Although repairs to
the vehicle were approximately $2,500, this reduced amount was due to the fact
that second-hand parts were used in the repair of the vehicle.

[31]        
Although his hands were shaking Mr. Szymanski
felt no pain immediately after the accident.  However, two to three hours later
he started to feel pain in the left side of his neck.  At the onset of the
pain, Mr. Szymanski tried to see his family doctor but was unable to contact
him so he elected to attend a nearby walk-in clinic.  As a consequence, Mr.
Szymanski’s neck was x-rayed by the attending physician and staff.

[32]        
The next day Mr. Szymanski felt much worse and
experienced a sharp pain on the left side of his neck, even without moving his
head.  The sharp pain Mr. Szymanski experienced in his neck extended from the
base of his hairline down to the middle of the trapezius line in his upper
back/shoulder area.  This was the only injury that Mr. Szymanski sustained as a
result of the accident.

[33]        
Two days after the collision Mr. Szymanski was
able to see Dr. Tomaszewski, his family doctor.  The very sharp pain had not
abated and was increasing in intensity.  Dr. Tomaszewski prescribed him Tylenol
3 and referred him to physiotherapy and massage therapy.

[34]        
Mr. Szymanski took the Tylenol 3 medication two
to three times a day and went to 10 or 11 physiotherapy sessions.  He did not
find the physiotherapy helpful but did find that massage therapy was of great
assistance to him.

[35]        
Immediately after the accident Mr. Szymanski
missed approximately one and a half weeks of work. 

C.       Post- Accident Condition

1.       The evidence of Andrzej Szymanski

[36]        
Mr. Szymanski testified that for two years
following the accident he experienced sharp pain on the left side of his neck
for long periods of time that interfered with all aspects of his life,
including sleeping.

[37]        
Immediately after the accident, and for the next
year, Mr. Szymanski had a great
deal of difficulty sleeping.  He purchased pillows to place under his neck,
under his kidneys and between his knees to help hold him in position.  He used
the pillows occasionally in the second and third year after the accident. 
Since the beginning of 2008 Mr. Szymanski’s sleep is rarely affected by the pain he experiences in his neck,
estimating that in 2008 sleep difficulties related to his neck pain occur maybe
once a month.

[38]        
Despite attending 10 or 11 sessions of
physiotherapy and massage therapy on numerous occasions, Mr. Szymanski
experienced no improvement in the sharp neck pain during the first year after
the accident (2005).  In the
second year after the accident (2006) he noticed a slight improvement in his pain in that the sharp neck
pain was for shorter durations.  However, it was not until the beginning of
2008 that he noticed that his condition and symptoms had improved significantly.

[39]        
Thus, by 2008 things were much improved in that
Mr. Szymanski sleeps better and his pain is significantly diminished although
he still feels dull pain and discomfort most of the time.  The sharp pain is,
for the most part, gone and Mr. Szymanski has learned to accept the dull pain
and discomfort.  However, he occasionally still experiences sharp neck pain
when working.  When this occurs, he has to stop working and go home.

[40]        
When asked how the neck pain and associated
symptoms affected him, Mr. Szymanski explained that he tires very easily at
work especially when doing heavy work.  In the first three years following the
accident he often had to leave work early and go home and have a long hot bath
and go to bed.  He stopped doing renovations on the family home and stopped
socializing with friends.

[41]        
In terms of his employment, Mr. Szymanski
explained that he could not refuse work as he was afraid he would lose
contracts, which caused him stress.  He could not recall if he had any
assistance in doing flooring installations prior to the accident but testified
that his son and his wife helped him with set up and clean up on his contracts
after the accident as he was not able to afford to hire a professional helper.

[42]        
A few months after the accident, Mr. Szymanski’s work situation improved
considerably.  He now subcontracts to a larger company that provides all the
flooring materials so that when he arrives at the job site he simply has to
bring his tools and install the flooring; he no longer has to prepare the area
or supply and carry the heavy flooring bundles.

[43]        
Mr. Szymanski also noted that in addition to an
overall improvement of the physical aspects of his working conditions, the
remuneration for his work was much more lucrative.  In cross-examination he
agreed that the bigger company he now subcontracts with pays him much more
money per square foot and that everything is better, agreeing that his income
has actually increased since the accident.

[44]        
Almost 95% of Mr.
Szymanski’ work is piecework; thus, what he is paid
depends on how many square feet of flooring he installs.  He estimated that
installing flooring for a 600 square foot room would, prior to the accident,
take him two days whereas after the accident it would take him about three
days.  He explained that he had to slow down in order to avoid experiencing the
sharp pain in his neck.

[45]        
Mr. Szymanski’s 2005 tax return discloses a
reported gross business income of $39,955 from his hardwood flooring
installation business.  His 2006 tax return discloses a reported gross business
income of $44,432.  And, his 2007 tax return discloses a
reported gross business income of $50,054.61.  He
explained that the economy and contract work continued to increase in these
years but that his lower gross business income in 2005 and 2006, as compared to
2004, were due to the fact that he had to work more slowly and often had to
leave a job site early due to the sharp pain in his neck.  Mr. Szymanski felt
that if he had not had the accident and suffered the soft tissue injury to his
neck, which causes him to take longer to complete his contracts, he would have
made much more money in these years.

[46]        
Mr. Szymanski estimated that immediately after
the accident he worked about 30 hours a week and that he managed to gradually
increase his hours.  By the time of the trial he was working about 40 hours a
week, still less than before the accident.  Mr. Szymanski testified that if he
feels good he could work more hours but explained that he still finds the work
harder and that it takes him longer than it did prior to the accident.  He was
unable to provide anything more specific or detailed than this anecdotal
estimation of his work hours.  No business records were produced to demonstrate
his work hours during this time period and nothing was produced to assist in
determining or confirming in a substantive way the hours lost or contracts he
turned down due to the neck pain and difficulties he was experiencing.

[47]        
Mr. Szymanski explained that his work as a
hardwood floor installer is a physically demanding job.  It involves not only
bringing heavy tools and materials, such as heavy bundles of flooring to the
job site, preparing the area for installing the flooring by moving furniture
and other heavy items, but the actual installation of the flooring requires him
to be on his hands and knees operating a staple gun in his left hand and
hammering the flooring into place with his right hand.  Since the accident he
has had to modify his position to brace himself with his right hand when using
the staple gun in his left hand.

[48]        
Since the accident, Mr. Szymanski has had to
change the pace of his work, moving more slowly on his hands and knees.  In the
first three years after the accident he had to be careful in terms of movement
of his head as he would often experience a sharp pain in his neck and have to
stop working.

[49]        
By 2008 a “good day” for Mr. Szymanski either
involved no pain or some discomfort.  He explained that a “bad day” in 2008
would involve strong dull pain lasting longer than an hour. Before 2008, a “bad day” was when the pain made it difficult for him
to wake up and undertake a full day’s work.  Mr. Szymanski had to watch that he
did not aggravate the pain.  If the pain became too strong, he would have to
leave the job site early, go home and take a bath, stretch and go to bed.

[50]        
When asked whether working in 2008 aggravated
his pain, Mr. Szymanski was stoic in his response stating:

What do I tell
you. I have still discomfort and dull pain.  When I start the pain, like the
dull pain, I am just move my position, I change my position, sometimes make the
exercise in the car, even I drive in the car.  In my job, I take a rest, few
minutes, ten minutes, and go start the job.  I know, I have experience, if not
I get the much more pain.  And this bigger pain I worry about that very
shortly.

[51]        
Mr. Szymanski explained that as a result of the
accident and the ongoing pain he experiences from the injury to his neck his
recreational pursuits have been diminished in that he no longer swims or
canoes.  He still hunts on occasion, but much more slowly and for much shorter
periods of time.  His activities with his dog are restricted to much slower
walks.  He rides his bike much more slowly and generally is less active than he
was prior to the accident.

[52]        
Mr. Szymanski testified that as result of the
neck injury sustained in the accident, and the ongoing pain he experiences, his
social life has been affected in that he is less willing to go out and
socialize with friends or entertain them at home.  In addition, his
participation in the renovation of the family home stopped for the first three
years after the accident as he was unable to assist with those activities or
with other domestic chores such as cutting the grass, vacuuming, or assisting
with the dishes.

[53]        
When asked about his retirement plans Mr.
Szymanski responded that he was not thinking about retiring.  He wanted to work
as long as possible because he enjoys working with wood and working alone.  Mr.
Szymanski explained that prior to the accident he had hoped to eventually
retire and open a recreation area with small cottages on a lake.  However,
since the accident, he felt this goal would not be attainable as he can no
longer build houses by himself, his strength having diminished.

2.       The
evidence of Anna Szymanska

[54]        
Mrs. Szymanska testified that after the accident
her husband changed in a number of ways.  He was unable to carry on with the
home renovations on his own and had to rely upon her and their son to carry
them out.

[55]        
In terms of his work habits, Mrs. Szymanska
related that after the accident Mr. Szymanski often would leave work early and
on his return home would complain of being tired and in pain and often went
straight to bed.  Initially, sleeping was difficult for Mr. Szymanski and he
would have to arrange pillows to make sleeping more comfortable.

[56]        
Mrs. Szymanska recalled that in 2005 or 2006,
during the acute stage of Mr. Szymanski’s pain after the accident, she would
sometimes have to help him clean up at job sites on a Saturday, an activity he
had never asked her to do prior to the accident.

[57]        
Mrs. Szymanska testified that after the
accident, Mr. Szymanski no longer engaged in his recreational activities with
the same level of vigour.  He no longer hiked in wilderness areas but simply
went on slow walks; he hunted less, although she could not specifically recall
how often he hunted pre and post accident.  He no longer went out on long bike
rides or canoeing.

[58]        
Immediately after the accident, Mr. Szymanski
was not able to perform his usual household chores of vacuuming and helping in
the kitchen.  According to Mrs. Szymanska he has returned to doing some of
the chores and in 2008 to doing the home renovations, albeit at a slower pace.

[59]        
Immediately after the accident, and to some
extent still, Mr. Szymanski was no longer willing to accompany Mrs. Szymanska
on social outings due to the pain and tiredness he experiences from his
injuries, which is a source of difficulty for the couple.

[60]        
The overall thrust of Mrs. Szymanska’s evidence
was that as a result of the accident and the injuries her husband sustained in
it, her husband is not the same as he was before the accident, although by 2008
there were some changes for the better.

3.       The evidence of Mr. Szymanski’s children

[61]        
Dominica Szymanska
testified that since the accident her father has become moodier, they rarely go
on hikes together any more, they no longer go canoeing, he does not hunt as
frequently as he used to before the accident, he is not as active as he was
before the accident, he takes more naps and rests and appears to engage in more
quarrels with his wife.  As well, the pace of renovations on the house slowed
down and Ms. Szymanska observed that her father no longer appears to enjoy
doing the renovations.

[62]        
In terms of his work capacity, Ms. Szymanska
testified that her father had slowed down in his work, he does not take on the
contracts that he used to pursue prior to the accident, she has seen her
brother carry the tools and pack their father’s car, her father no longer removes his tools from his vehicle overnight, and he
seemed to be working shorter hours, often returning home by 3:00 p.m.  Ms. Szymanska
testified that this continued to be the state of affairs when she moved out of
the family home in February 2008.  Ms. Szymanska also testified that she
observed on occasion that her father’s pay cheques were smaller than they used
to be.

[63]        
According to Ms. Szymanska, her father appears
more frail since the accident – he is skinnier, walks more hunched over, and
appears sick, tired and broken.  She worries that he pushes himself too much in
an effort to pay the bills and worries about his future based on her
observations of him.

[64]        
Lucas Szymanski helped his father with his work
every day for about two or three months after the accident until he went to
work himself.  When assisting his father, Lucas Szymanski noted his father
worked more slowly, doing only about half the work he had been able to do prior
to the accident, and that he took more breaks.  Lucas Szymanski explained that
working as a hardwood floor installer is physically demanding and often
involves kneeling using a hammer and air compressor.  After the accident he
observed his father to take frequent breaks and rub the back of his neck and
the area above his shoulders.  His father also would stop work earlier in the
day around 2:00 or 3:00 p.m., even if he had not finished the job, and would go
home.  When Lucas Szymanski started his own job and was no longer assisting his
father on a daily basis, he would very occasionally help his father on the
weekends.

[65]        
Lucas Szymanski also testified that since the
accident his father no longer goes out canoeing and is not as active as he was
prior to the accident.  He sees his father resting more and less inclined to go
out hiking or biking and explained that his father is far less social than he
was prior to the accident.  For a long period of time after the accident his
father did not do any of the renovations on the house and Lucas and his mother
took over the renovation work doing the drywall work, painting and structural
renovations in the downstairs area. 

D.       Medical Evidence

[66]        
The post-accident condition of Mr. Szymanski is
also addressed by the medical and expert evidence adduced in this trial.

1.       Dr. Christopher Tomaszewski

[67]        
Dr. Tomaszewski has been
the plaintiff’s family doctor since 1995.  On December 9, 2004, Dr. Tomaszewski
examined Mr. Szymanski and was advised of the accident and the symptoms Mr.
Szymanski was experiencing.  Physical examination revealed tenderness to Mr.
Szymanski’s cervical spine area when palpated.  Painkillers, physiotherapy and
massage therapy were prescribed as modalities of treatment along with heat
applications.  Dr. Tomaszewski diagnosed the injury to Mr. Szymanski’s neck as
a soft tissue injury, rating it as a Grade II injury exhibiting decreased range
of motion and tenderness.

[68]        
On the date of the accident, Mr. Szymanski
attended at a walk-in clinic and had an x-ray taken of his neck.  It revealed
degenerative changes to Mr. Szymanski’s cervical spine at the C5-6 and C6-7
level.  Dr. Tomaszewski explained these degenerative changes are age-related
and normal for a man of Mr. Szymanski’s age.  Mr. Szymanski had never
complained of any neck pain prior to the accident and in Dr. Tomaszewski’s opinion,
these degenerative changes in the plaintiff’s neck were asymptomatic.

[69]        
Dr. Tomaszewski completed a CL-19 medical form
for ICBC on January 6, 2005 and indicated that Mr. Szymanski had not been
receiving any treatment or medication for any pre-existing conditions directly
related to the injury.  He also noted that moderate physical exertion
aggravated the pain.  Mr. Szymanski was described as totally disabled from work
for a period of one week and that a partial disability was “unknown at
present”.  The CL-19 contained reference to the results of the December 7, 2004
x-ray and the degenerative changes in Mr. Szymanski’s cervical spine area.

[70]        
From December 23, 2004 through March 9, 2006,
Mr. Szymanski continued to complain of recurrent neck pain that affected his
ability to work full days from time to time.  Although physical examination of
Mr. Szymanski’s neck on June 1, 2006, revealed no tenderness and that he had
full range of motion, he complained of worsening neck pain which Dr.
Tomaszewski explained was a common phenomenon.

[71]        
On August 24, 2007, Dr. Tomaszewski examined Mr.
Szymanski and noted tender neck muscles and prescribed further massage
treatments and Tylenol 3 medication.  Examination of Mr. Szymanski on October
4, 2007 revealed continuing tenderness and increased muscle tone in the upper
back in the area from the shoulders and the trapezius muscles down to the
bottom of the scapula.  Mr. Szymanski exhibited a normal range of movement
for his neck.  Mr. Szymanski complained of experiencing an onset of upper back
pain after lifting heavy materials at work.  Dr. Tomaszewski
prescribed Naproxen, an anti-inflammatory medication, and continuing massage. 
An examination on January 8, 2008 revealed that Mr. Szymanski’s condition
remained unchanged and he was given a refill prescription for Naproxen.

[72]        
On March 13, 2008, Mr. Szymanski was still
exhibiting signs of tenderness to his cervical and thoracic spine area.

[73]        
Between December 9, 2004 and August 14, 2008 Dr.
Tomaszewski saw Mr. Szymanski on approximately 21 occasions for
difficulties and continuing pain related to the December 7, 2004 accident.  Mr.
Szymanski complained of recurring neck pain and upper back pain and that there
would be a gradual onset of the pain when Mr. Szymanski was engaged in his work
installing hardwood floors.  Dr. Tomaszewski continued to treat Mr.
Szymanski for his neck injury but the pain continued to bother the plaintiff.

[74]        
By May 8, 2008, however, Mr. Szymanski was
reporting to Dr. Tomaszewski that he felt he was improved to about 70% of his
pre-accident health.  It was Dr. Tomaszewski’s opinion that by August 14,
2008, Mr. Szymanski had plateaued in his recovery, he still had recurring neck
pain in the left side of his neck and that it was unlikely that he would see
any improvement in his condition in the future.

[75]        
In July 2003 Dr.
Tomaszewski treated Mr. Szymanski for a work-related
injury to his lower back that occurred when he was lifting heavy bundles of
wood flooring.  Mr. Szymanski had completely recovered from that
work-related injury before the accident on December 7, 2004.

[76]        
Dr. Tomaszewski was of the opinion that it was
unlikely that the degenerative changes to Mr. Szymanski’s cervical spine
contributed to the ongoing pain Mr. Szymanski was still experiencing as a
result of the accident.  He conceded it was possible the degenerative changes
might contribute to the pain to some degree, but was unable to say how much.

[77]        
According to Dr. Tomaszewski, the degenerative
changes to Mr. Szymanski’s cervical spine area were not unusual and were
simply due to a loss of calcium from the spine, essentially wear and tear
changes related to the aging process.  Dr. Tomaszewski was unable to say,
without resorting to speculation, whether the degenerative changes to Mr.
Szymanski’s neck could cause pain in the absence of the accident.  It was Dr.
Tomaszewski’s opinion that the cause of Mr. Szymanski’s
ongoing neck pain, which was still evident in August 2008, was the accident of
December 7, 2004.

[78]        
I accept Dr. Tomaszewski’s observations and
assessment of Mr. Szymanski’s condition.  Dr. Tomaszewski documented his
observations of Mr. Szymanski over almost four years and noted that the pain
Mr. Szymanski complained of and the tenderness in his neck and upper trapezius
area were still being objectively verified upon physical examination in March
2008.  Thus, in Dr. Tomaszewski’s opinion the continuing neck and upper
trapezius pain that Mr. Szymanski experienced were related to the accident,
there being no complaints of neck pain or related disability prior to December
7, 2004.  While the degenerative changes to Mr. Szymanski’s cervical spine
could possibly contribute to his ongoing neck pain, the quality of the evidence
and opinion on this point remains speculative at best.

2.       Dr. Cecil Hershler

[79]        
In addition to the evidence of Dr. Tomaszewski,
the plaintiff called Dr. Cecil Hershler, a physiatrist, who outlined his opinion
of Mr. Syzmanski’s condition based on a single examination he conducted on May
15, 2006, approximately one and a half years after the accident.

[80]        
Dr. Hershler spent between one and a half to two
hours assessing Mr. Szymanski with 20 to 25 minutes of the assessment
involving a physical examination.  Dr. Hershler obtained a detailed history
from Mr. Szymanski and was aware of a work related injury that involved Mr.
Szymanski being off work and receiving WCB benefits one or two years before the
accident.  As Mr. Szymanski had completely recovered from that injury, Dr.
Hershler did not address it to any great degree and could not recall whether
the injury had been to Mr. Szymanski’s lower back.

[81]        
Dr. Hershler noted that palpation of Mr.
Szymanski’s cervical spine in the C2-3 and C5-6 area elicited an involuntary
pain response, revealing ligament tender points in this area.  Mr. Szymanski
also exhibited deep muscle tender points in the upper trapezius attachments on
the left side of his neck.  The rest of the physical examination was normal.

[82]        
Significant to Dr. Hershler’s opinion was the
fact that Mr. Szymanski had no history of neck pain prior to the accident. 
Based on his physical examination and the reported history of Mr. Szymanski,
Dr. Hershler concluded that Mr. Szymanski’s soft tissue injuries to the
cervical spine in the C2-3 and C5-6 area as well as the attachments of the
upper trapezius muscle to the neck were caused by the accident of December 7,
2004.

[83]        
Dr. Hershler explained that his prognosis for Mr.
Szymanski’s full and complete recovery was stated as guarded in his May 2006
report based on his experience and treatment of thousands of patients and the
symptoms he observed in Mr. Szymanski one and half years after the accident. 
Dr. Hershler observed Mr. Szymanski to be functioning and motivated but
still exhibiting symptoms a year and a half after the accident and in spite of
treatment.  The pain was described as enough to affect Mr Szymanski’s
functioning so as to prevent him from returning to his full pre-accident
function level. 

[84]        
In his report, Dr. Hershler provided the
following prognosis:

PROGNOSIS:

The prognosis
for complete recovery and full resolution of the pain is guarded.  Andrew has
continued to complain of symptoms particularly with the head bent forward for
over a year and a half.  This is in spite of the fact that he has had
physiotherapy and massage therapy.  The fact that the massage therapy has been
more effective is consistent with the findings of muscle tender points on the left
side of the neck.  Andrew is a motivated individual with a high pain tolerance
and a good work ethic.  He has continued working as an installer but is limited
by the pain.  Given this history, it is unlikely that the symptoms will simply
disappear in the near future.  It is more likely than not that he will continue
to be symptomatic particularly at work for at least another year and more
likely two years.  From a therapeutic point of view, I would simply prescribe
massage therapy for pain management.  I would recommend that he see the massage
therapist twice a month for twelve months and thereafter once a month for
another year.  This amount of massage therapy should be adequate for pain
management.  At the same time, he should be encouraged to at least maintain his
existing work hours.  If, at all possible, he should vary his job so as not to
be kneeling or bending with the head constantly flexed.  If he is unable to
change this, then it is likely that he will remain symptomatic throughout this
period of time.

[85]        
Although Dr. Hershler was unaware that
degenerative changes had been located at the C5-6 vertebrae level of Mr.
Szymanski’s cervical spine, he said he would not be surprised by such a
finding.  He explained, however, that simply because degenerative changes
exist, does not mean that the individual is symptomatic due to the changes. 
The most Dr. Hershler could say on this point was that if a spine with
degenerative changes is subjected to trauma it may be at a greater risk of
developing symptoms than a spine that shows no degenerative changes.

[86]        
What I take from Dr. Hershler’s opinion is that
Mr. Szymanski was still experiencing symptoms of pain in the left side of his
neck at the C2-3 and C5-6 vertebrae level and left upper trapezius area one and
half years after the accident and that the pain was triggered by prolonged head
forward postures while working as a hardwood floor installer.  Dr. Hershler’s
prognosis suggests that Mr. Szymanski would remain symptomatic,
particularly in relation to work, for a further year or two.  On the totality
of the evidence before me, that prognosis has been borne out and Mr.
Szymanski’s symptoms have diminished considerably since early 2008.

[87]        
Significantly, Dr. Hershler did not recommend
that Mr. Szymanski should cut back his existing work hours which, at the time
of his report, were between 25 and 40 hours a week.  Instead, Dr. Hershler
recommended that Mr. Szymanski should vary his job so that he is not kneeling
or bending with his head constantly flexed.  As far as treatment was concerned,
Dr. Hershler felt that continuing massage therapy on a bi-monthly basis for one
year and a once a month basis for the next year would be adequate for pain
management.

3.       Dr. Iain Dommisse

[88]        
Dr. Dommisse, an orthopaedic surgeon, conducted
an independent medical examination of Mr. Szymanski on
June 7, 2007, and prepared a report dated June 20,
2007.  Dr. Dommisse was not called as a witness but his report was marked as an
exhibit in the trial.

[89]        
Dr. Dommisse expressed the opinion that Mr. Szymanski
sustained a Grade II cervical strain as a result of the accident but by June
20, 2007 had likely recovered from the accident because Mr. Szymanski
complained of a tired and pressure feeling within the cervical spine area and
the only objective finding was that of mild stiffness in flexion and extension
of the cervical spine.  Dr. Dommisse opined that the prognosis for Mr.
Szymanski’s recovery from the injury was good.

[90]        
Physical examination of Mr. Szymanski by Dr.
Dommisse revealed tenderness at the midline of the cervicothoracic junction an
area, I note, that Dr. Hershler also stated in his report to be the area
where Mr. Szymanski’s movement in the left side of his neck was restricted by
localized pain.

[91]        
Dr. Dommisse also reported on Mr. Szymanski’s
range of motion in his cervical spine.  Although lateral flexion to the right
and left was within the normal range, rotation of the cervical spine to the
right and left sides was between 5 and 15 degrees less than normal and the
overall flexion/extension range of motion of the cervical spine was reported as
50 degrees less than the normal total range.  Thus Mr. Szymanski, two and a half
years after the accident, was still exhibiting stiffness in flexion and
extension of the cervical spine and still had tenderness in the same area that
Dr. Hershler observed.

[92]        
In his report, Dr. Dommisse specifically
disagreed with Dr. Hershler’s May 15, 2006 opinion that the prognosis for Mr.
Szymanski’s complete recovery and full resolution of the pain was guarded at
that time.  Dr. Dommisse’s disagreement with Dr. Hershler was based on the
minimal objective findings of injury recorded by Dr. Hershler and the fact
that Dr. Hershler’s assessment was based on the plaintiff’s subjective
complaints.

[93]        
Dr. Dommisse further opined that Mr. Szymanski
would not have permanent disabilities or injuries as a result of the accident
but that the injury from the accident rendered him more susceptible to future
injury.

[94]        
Although Dr. Dommisse’s opinion was not
challenged by means of cross-examination, I do not place a significant amount
of weight upon it as to Mr. Szymanski’s prognosis.  Dr. Dommisse disagreed
with Dr. Hershler’s guarded prognosis saying there were minimal objective
findings of injury recorded by Dr. Hershler.

[95]        
However, I find Dr. Dommisse’s disagreement on
this point to be contradicted by Dr. Hershler’s explanation in his evidence
that he was able to elicit involuntary pain responses from Mr. Szymanski upon
palpation of the C2-3 and C5-6 area of the cervical spine and noted deep muscle
tender points in the attachments of the left upper trapezius muscle to the side
of the cervical spine.  Moreover, other objective findings of injury in Dr.
Hershler’s report would include his observation that upon physical examination
Mr. Szymanski exhibited normal head and neck movement with the exception of
rotation to the left.  Mr. Szymanski was observed to be unable to move his head
through the full range of movement and was noted to have lost about 25% of that
range.

[96]        
What I accept from Dr. Dommisse’s opinion is
that Mr. Szymanski suffered a Grade II cervical strain as a result of the
accident and that by June 2007, Mr. Szymanski was showing signs of
improvement.  However, Dr. Dommisse’s opinion that Mr. Szymanski had “likely
recovered” is at best equivocal.  Moreover, it is contradicted by the continued
symptoms that Dr. Tomaszewski observed and documented even into early 2008.

[97]        
On the basis of this medical evidence, I find that as a result of
the accident Mr. Szymanski sustained mild to moderate soft tissue injuries to
his neck, particularly the left side of his neck and that the injury was to the
C2-3 and C5-6 of the cervical spine area, and that as a result of the injures
the pain radiates into the upper left trapezius area.  As a result of the
accident Mr. Szymanski experienced significant pain and discomfort in these
areas for a period of time considerably longer than expected, likely in part
due to his physically demanding occupation as a hardwood floor installer.  Mr.
Szymanski continued to experience ongoing pain and difficulty through 2007. 
However, by early 2008 he started to show signs of significant improvement. 
Given the lengthy duration and persistence of the pain it can be said that he
suffers from chronic pain.

4.       Ms. Lila Quastel

[98]        
Ms. Lila Quastel, an occupational therapist,
assessed Mr. Szymanski on January 15 and 16, 2008 and prepared a report dated
June 9, 2008.  Ms Quastel’s role was to identify Mr. Szymanski’s functional
capacities and acquired work limitations resulting from his injuries.  Ms.
Quastel based her opinion on Mr. Szymanski’s subjective complaints of what
he was still experiencing as well as from a review of the medical documentation
sent to her and her own physical testing and vocational assessment of Mr. Szymanski.

[99]        
Unfortunately, Mr. Szymanski did not report his
history, level of functioning and complaints to Ms. Quastel in a completely
accurate manner.  For example, he reported to Ms. Quastel that he was off work
for three weeks but Dr. Tomaszewski’s notes indicated he was only off work for
one week.  Mr. Szymanski never told Ms. Quastel that he had a back injury
in 2003 which kept him off work for about 53 days but instead told her he had a
hand injury.  However, WorkSafe records indicate that Mr. Szymanski sustained a
hand injury in 1998.

[100]     Some of the inaccuracies in Mr. Szymanski’s reporting of his history
may well be due to the language difficulties he still experiences.  He had no
Polish interpreter to assist him in his interview and assessment with Ms. Quastel. 
Indeed, Ms. Quastel notes in her report that the reader should be cautious when
reading the results of the validity of some of her testing due to the language
and comprehension impediments Mr. Szymanski exhibited, confirming as much in
her evidence.

[101]     Counsel for the defendants takes issue with the quality of Ms.
Quastel’s report and urges that no weight should be given to it, arguing that
the report contains factual errors about the accident, reveals bias in calling
the defendant “the offending driver” and improperly contains medical opinions
notwithstanding that she is not a medical doctor.  I do not find the factual
inaccuracies as to the vehicles involved in the accident, or the name of one of
Mr. Szymanski’s former employers to be in any way material to her opinion or to
undermine its reliability.  Nor does the difference in account of how much work
Mr. Szymanski missed materially affect the reliability of her report.

[102]     Despite the inaccuracies in failing to report his previous back
injury to Ms. Quastel, I do not conclude that Ms. Quastel formed a
mistaken impression of Mr. Szymanski’s functional capacities and work
limitations.

[103]     In addition to considering Mr. Szymanski’s subjective accounts of
the pain he said he experienced, Ms. Quastel administered a variety of physical
tests and also made clinical observations of Mr. Szymanski over the two day
assessment period.  She found there were no inconsistencies in his effort at
the physical tests and no signs of undue pain behaviour or magnification of
pain in all her testing.

[104]     Interestingly, palpation of Mr. Szymanski’s spine, in the areas
where he indicated he experienced pain, revealed tenderness or pain only in the
T2 to T4 thoracic vertebrae, indicating difficulty in the high back/low neck area. 
The pain responses were noted to be in the paravertebral muscles just to the
left of the vertebrae.  Range of motion tests on all of Mr. Szymanski’s joints
revealed he has full range of motion but that he reported mild neck pain on
left lateral rotation of his head and pain on the left side of his neck when
doing circumduction or rolling his head.

[105]     For the most part, Mr. Szymanski was noted to be in very good health
and physically fit with excellent back muscle power.  Strength testing through
lifting, carrying and pushing/pulling weights revealed that he was able to lift
between 55 and 75 pounds in one time lifts and between 40 and 50 pounds in
repetitive lifts.  Mr. Szymanski reported to Ms. Quastel that he
experienced pain in his neck and upper back during and after completing the
repetitive hip to shoulder and floor to hip weight lifts and that the pain
occurred when lifting above waist level.  Although Mr. Szymanski was able
to carry 50 pounds for more than 100 feet and up and
down five steps he was unable to carry 60 pounds as he found it too painful.

[106]     Although pain may well be a subjective phenomenon not easily
measurable by independent objective indicia, I find the results of the physical
strength testing and Ms. Quastel’s observations of Mr. Szymanski’s abilities to
be significant.  Based on Ms. Quastel’s observations, Mr. Szymanski did not
malinger or exaggerate his pain or endeavour to carry less weight or complain
of pain when engaged in light strength testing.  It was only when Mr. Szymanski
reached the heavier weights that he complained of pain or difficulty.  Mr.
Szymanski, by all accounts, is stoic and endeavours to perform to the best of
his ability, perhaps to his detriment, by not adequately self limiting his
activities in relation to his neck pain.

[107]     I accept Ms. Quastel’s opinion of Mr. Szymanski’s physical
capacities based on the result of her objective physical strength testing and
her prolonged period of observation of Mr. Szymanski for approximately 12 to 16
hours over the two day assessment period.

[108]    
Ms. Quastel’s opinion, based on her testing and
observations of Mr. Szymanski, her review of his medical file and the
other medical legal opinions, her many years of experience as an occupational
therapist that also includes early experience as a physiotherapist, can be
summarized as follows:

Mr. Szymanski sustained soft tissue injuries
to his neck and the left side of his upper back in the accident on December 7,
2004.  His pain improved but did not resolve. 

Mr. Szymanski has been left with cervical
and upper thoracic pain.  This pain radiates to his left shoulder.  According
to Ms Quastel, the worst pain for Mr Szymanski is at the level of T2-T3.  The
pain interferes primarily with his work.  He occasionally has to reduce his
work hours to half time when he is experiencing bad neck and upper back pain.

It is possible that Mr. Szymanski’s
occupation as a hardwood floor installer is significantly contributing to his
ongoing pain and discomfort in his neck and upper back. 

Should Mr. Szymanski be unable to continue
doing hardwood floor laying, he would be limited to direct entry jobs in the
limited, light and medium strength categories. 

Considering the
length of time that has elapsed, Mr. Szymanski’s pain can be considered
chronic.  While Mr. Szymanski may experience partial pain resolution, Ms.
Quastel was not hopeful that after three and a half years Mr. Szymanski’s pain
will totally resolve.

[109]     In cross-examination, Ms. Quastel clarified that a few minor errors
in her report, such as the type of vehicle Mr. Szymanski was driving, were as a
result of some difficulties in comprehension on the part of both parties.

[110]     Although Ms. Quastel recommended that Mr. Szymanski work only half
time for the next year, she acknowledged that neither Dr. Hershler nor Dr.
Dommisse had made a similar recommendation.

[111]     Where I have difficulty with Ms. Quastel’s report and conclusions is
that the area that Ms. Quastel was able to elicit pain responses from upon
palpation were not the same as the areas Dr. Tomaszewski, Dr. Hershler and Dr.
Dommisse found to be the areas of injury.  On the basis of this discrepancy
between locations of the pain responses, coupled with the different opinion as
to the approach to Mr. Szymanski’s employment situation, I am not
satisfied that I can fully rely upon Ms. Quastel’s recommendations for
treatment for Mr. Szymanski.

[112]     Where Ms. Quastel’s opinion differs from Dr. Hershler, Dr. Tomaszewski and Dr. Dommisse, I prefer their
evidence as to the location of the injury to Mr. Szymanski’s neck and as
to the recommendations on return to work and continuing treatment. 

E.       Credibility

[113]     Mrs. Szymanska’s evidence was not seriously challenged on
cross-examination other than to demonstrate that she did not know how often her
husband went hunting before and after the accident and to establish that she
only assisted her husband at his job sites during the acute phase of his injury
in 2005 and 2006.

[114]     I accept Mrs. Szymanska’s evidence.  She was forthright in her
description of the changes she has observed in her husband since the accident. 
Mrs. Szymanska provided a picture of a man who has a strong work ethic and is
proud of his skills and abilities and had a passion for outdoor recreational
activities and contributing to the domestic chores and renovations around their
home.  All of these facets of Mr. Szymanski’s life have been negatively
affected by the injury that he sustained in the accident and that he still has
not completely recovered from the injury to his neck.  However, he is much
better than he was immediately after the accident and for the three years that
followed.

[115]     Dominica Szymanska’s evidence was not seriously challenged on
cross-examination other than to demonstrate that she did not know how often her
father returned home early from work prior to the accident and to establish
that she did not recall his back injury in 2003.  I do not find either of these
scenarios surprising in light of the passage of time and the rather benign
nature of the events.

[116]     I accept Ms. Szymanska’s evidence about her observations of the
changes in her father since the accident.  Ms. Szymanska struck me as an
honest, forthright young woman, clearly concerned about her father’s
circumstances.  However, I do not find that her concerns coloured her account
of what she observed in terms of changes in her father’s behaviour.

[117]     I also accept Lucas Szymanski’s evidence about his observations of
the changes in his father since the accident for the same reason.  He too was
forthright in his evidence and struck me as an entirely credible witness.

[118]     As a result of the accident, Mr. Szymanski suffered soft tissue
injuries principally to his neck with pain radiating into the mid to upper left
trapezius.  Problems with his neck continued up to and including the time of
trial, approximately four years after the accident, albeit the symptoms had
resolved considerably by the beginning of 2008.  In the ordinary course,
injuries of this nature normally would resolve.

[119]    
In Maslen v. Rubenstein (1993), 83
B.C.L.R. (2d) 131 (C.A.), Taylor J.A. said at para. 15.1:

With respect to the evidence required in
order to meet the onus lying on a plaintiff in such cases, Chief Justice
McEachern (then sitting as a trial judge) in Price v. Kostryba
(1982),  70 B.C.L.R. 397 (S.C.), repeating his observations in Butler
v. Blaylock, (October 7, 1981, Vancouver B781505 (B.C.S.C.)) [[1981] B.C.J.
No. 31 (QL)], put it thus [p.399]:

I am not stating
any new principle when I say that the court should be exceedingly careful when
there is little or no objective evidence of continuing injury and when
complaints of pain persist for long periods extending beyond the normal or
usual recovery.

An injured person
is entitled to be fully and properly compensated for any injury or disability
caused by a wrongdoer.  But no one can expect his fellow citizen or
citizens to compensate him in the absence of convincing evidence–which could
be just his own evidence if the surrounding circumstances are consistent that
his complaints of pain are true reflections of a continuing injury.

So there must be
evidence of a "convincing" nature to overcome the improbability that
pain will continue, in the absence of objective symptoms, well beyond the
normal recovery period, but the plaintiff’s own evidence, if consistent with
the surrounding circumstances, may nevertheless suffice for the purpose.

[120]     I must approach Mr. Szymanski’s evidence with caution given that the
symptoms ordinarily would have resolved.

[121]     Upon consideration of all of the evidence, I find that Mr.
Szymanski’s complaints of continuing neck and upper left trapezius pain are
legitimate.  Overall, I found Mr. Szymanski to be a credible witness and I find
his complaints of continuing neck and upper trapezius pain are generally
consistent with the surrounding circumstances and evidence.  It was not
established that his reporting to the doctors was significantly contradictory. 
Moreover, the evidence of his family as well as the observations of Dr.
Tomaszewski and Ms. Quastel’s observations on physical testing in January 2008,
provide support for his complaints of ongoing neck and upper trapezius pain.

[122]     The defence has argued that as Mr. Szymanski was an unreliable
historian as to his medical history with Dr. Hershler, Dr. Dommisse and Ms.
Quastel in terms of the prior work related injury to his lower back, this
undermines the reliability of the reports in terms of the issue of causation
because all the reports and assessments are based primarily on the plaintiff’s
subjective complaints.

[123]     While it is correct that Mr. Szymanski appears to have not fully
reported his earlier back injury to these individuals in the sense of dates or
the extent of the difficulties, I do not find that in the circumstances of this
case, these inaccuracies undermine the reliability of the reports.  Although
Mr. Szymanski is capable of conversing in English, he did need the assistance
of a Polish interpreter during the trial.  I find that any inaccuracies in
reporting the prior back injury were likely due to Mr. Szymanski’s inability to
fully understand the subtleties of the questions being asked of him.  Mr.
Szymanski’s responses to some of the questions posed to him in the trial
confirm his difficulty with full comprehension of the subtleties of what is
being asked of him.  More significantly, though, the evidence establishes that
the lower back injury had fully healed more than a year before the accident. 
Consequently, I do not find the likely inadvertent failure to fully disclose
the details of his prior back injury undermines the reliability of the reports
prepared in this case.

[124]     Although Mr. Szymanski did not properly disclose his earlier lower
back injury sustained in a work place accident in July 2003 to the doctors who
assessed him for the purposes of this litigation, this
possible contradiction was not extensively explored on cross-examination. 
Moreover, Dr. Tomaszewski was well aware of this
difficulty and was clear in his evidence that it had fully resolved by the time
of this accident in December 2004.  In addition, I have already noted that
there were some language difficulties for Mr. Szymanski and he may not fully
have understood what was being asked of him.  However, I acknowledge, that this
does raise a modest concern about his credibility and the reliability of his
reporting.

[125]     Mr. Szymanski was occasionally not precise or careful in describing
his symptoms from time to time, but as noted that may well be in part due to
language difficulties.  His injuries have persisted beyond the expected time of
recovery and the case depends almost entirely on his credibility.  I have noted
that I approach his evidence with caution; however, on the whole of the
evidence, although Mr. Szymanski has had some difficulties with low back pain
in the past, I accept that he did not have any neck or trapezius pain prior to
the accident.  Looking at the evidence as a whole, I find Mr. Szymanski generally
to be credible.

[126]     I find that the symptoms from the injury from the accident persisted
longer than would normally be the case largely due to the nature of Mr.
Szymanski’s work which may well exacerbate the symptoms due to the demanding
physical nature of the work.

[127]     Based on the uncontradicted evidence of Dr. Tomaszewski,
Dr. Hershler and Dr. Dommisse, I am satisfied that Mr. Szymanski has met the
burden of proof and established that he has suffered
mild to moderate soft tissue injuries to the left side of his neck in the C2-3
and C5-6 area of his cervical spine and that this
injury has manifested itself through neck pain that radiates into the upper
left trapezius.  Although such an injury would
ordinarily resolve in a shorter period of time, the pain associated with the
injury has continued for longer than expected likely due to the demanding
nature of Mr. Szymanski’s occupation.

V.       Analysis

A.       Causation

[128]     The question that arises in this case is whether, in the
circumstances, Mr. Szymanski has proven the symptoms of which he continues to
complain were caused by the accident.  Counsel for the defendants argues that
while the accident may have caused some trauma to Mr. Szymanski’s neck, the
injury was mild, had resolved by June 2007 and that any ongoing neck pain is
likely the result of the degenerative changes in Mr. Szymanski’s cervical spine
and not the injuries from the accident.

[129]     Questions
of causation are to be determined by applying the principles that were
established in Athey v. Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th)
235 and Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.

[130]    
In Sam v. Wilson, 2007 BCCA 622, Mr.
Justice Smith, writing for the majority, noted at paras. 107-109:

[107]    Causation in negligence actions is
established by application of the "but for" test, as was recently
explained in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333:

[21] […] the basic
test for determining causation remains the "but for" test. This applies
to multi-cause injuries.  The plaintiff bears the burden of showing that
"but for" the negligent act or omission of each defendant, the injury
would not have occurred. 

[22] This
fundamental rule has never been displaced and remains the primary test for
causation in negligence actions.  As stated in Athey v. Leonati, [
[1996] 3 S.C.R. 458] at para. 14, per Major J., "[t]he general, but
not conclusive, test for causation is the ‘but for’ test, which requires the
plaintiff to show that the injury would not have occurred but for the
negligence of the defendant".  Similarly, as I noted in Blackwater
v. Plint, [2005 SCC 58, [2005] 3 S.C.R. 3] at para. 78, "[t]he rules
of causation consider generally whether ‘but for’ the defendant’s acts, the
plaintiff’s damages would have been incurred on a balance of
probabilities."

[23] The "but
for" test recognizes that compensation for negligent conduct should only
be made "where a substantial connection between the injury and defendant’s
conduct" is present.  It ensures that a defendant will not be held
liable for the plaintiff’s injuries where they "may very well be due to
factors unconnected to the defendant and not the fault of anyone": Snell
v. Farrell, [ [1990] 2 S.C.R. 311] at p. 327, per Sopinka J.

[108]    Where indivisible damage would not
have occurred but for the combination of multiple tortious causes each
tortfeasor is jointly and severally liable with the others for the whole of the
damage so long as his acts or omissions made a material contribution-beyond de
minimis to the damage: Athey v. Leonati, supra, [paras.]
41-44; Bonnington Castings, Ltd. v. Wardlaw, [1956] 1 All E.R. 615
(H.L.).  The standard of proof of causation is the balance of
probabilities: Athey v. Leonati [para.] 13.

[109]    "Material
contribution", as that phrase was used in Athey v. Leonati, is
synonymous with "substantial connection", as that phrase was used by
McLachlin C.J.C. above in Resurfice Corp. v. Hanke.  This causal
yardstick should not be confused with the "material contribution
test".

[131]     While the burden is on the plaintiff to establish that the injuries
were caused by the defendants’ negligence, the defendants, of course, take the
plaintiff as they find him: Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318
(C.A.) at paras. 104-107, 115.

[132]     I
am satisfied that it is more likely than not that the injury to Mr. Szymanski’s
cervical spine was caused by the accident of December 7, 2004. 
All the medical evidence supports this conclusion, including the June 20, 2007
report of Dr. Dommisse.  Dr. Dommisse opined that Mr. Szymanski sustained
a Grade II cervical strain as a result of the accident.  Dr. Dommisse formed
his opinion, in part, based on the opinion of Dr. Tomaszewski as expressed in
the CL-19 form that was completed.  Dr. Dommisse further explained that on the
basis of the information he did have, which included information in the CL-19
report about the existence of degenerative changes in Mr. Szymanski’s cervical
spine area, Mr. Szymanski did not have any pre-existing medical condition
that was affected by the injuries he sustained in the accident on December 7,
2004.

[133]     I am also satisfied on the basis of the medical evidence in this
case that it is more likely than not that the ongoing neck and trapezius pain
that Mr. Szymanski still experiences is related to the injuries he suffered in
the accident and not the asymptomatic degenerative changes in his neck that
were revealed by the x-ray done on the date of the accident. I find that Mr. Szymanski’s neck and trapezius pain does persist and
I reject the defendants’ submission that it does not, or that it is the result
of a degenerative disc disease unrelated to the accident.

[134]     Upon a consideration of all of the evidence, I find that Mr. Szymanski’s
complaint of continuing neck and trapezius pain was caused by the accident. 
The fact that he suffered soft tissue injuries to his neck is not disputed. 
The significance in this case is that the complaint continues.  I find that Mr.
Szymanski continues to suffer neck and trapezius pain and that is because the
accident and injuries occurred to a person with Mr. Szymanski’s particular
occupation such that it has made it difficult for the injuries to fully resolve
in the ordinary course.  As noted in the evidence of Dr. Tomaszewski, Dr. Hershler
and Ms. Quastel, which I accept, Mr. Szymanski’s occupation as a hardwood floor
installed has exacerbated the situation and made him more susceptible to
suffering injury for a greater period of time than a normal person might have. 
Mr. Szymanski has established that he has continuing problems with chronic neck
pain and his continuing problems were caused by the defendants’ negligence.  He
is entitled to be compensated for his injuries.

B.       Damages

[135]     Mr. Szymanski seeks the following for damages:

 1.       Non-pecuniary
damages = $45,000 to $85,000

 2. Past Loss of income = $44,760

 3. Loss of Future Earning Capacity = $150,000 to $300,000

 4.       Cost
of future care = $23,304

 5.       Special
damages = $746

1.       Non-Pecuniary Damages

[136]     Non-pecuniary damages are awarded to compensate the plaintiff for
pain, suffering, loss of enjoyment of life and loss of amenities.  The
compensation awarded should be fair and reasonable to both parties: Andrews
v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 [Andrews]; Jackson
v. Lai, 2007 BCSC 1023 at para. 134 [Jackson]; Kuskis v. Hon Tin,
2008 BCSC 862 at para. 135 [Kuskis].

[137]     For purposes of assessing non-pecuniary damages, fairness is
measured against awards made in comparable cases.  Such cases, though helpful,
serve only as a rough guide.  Each case depends on its own unique facts: Andrews;
Jackson; Jenkins v. Bourcier, 2003 BCSC 388 at para. 87; Radford
v. Drobot et al., 2005 BCSC 293 at para. 62; Kuskis at para 136.

[138]    
The relevant factors in assessing non-pecuniary
damages were recently reiterated by Mr. Justice Voith in Lakhani v. Elliott,
2009 BCSC 1058 at para. 104, citing the majority opinion of the Court of Appeal
in Stapley v. Hejslet, 2006 BCCA 34 (see also Kuskis
at para. 138):

The inexhaustive list of common factors
cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that influence an
award of non-pecuniary damages includes:

a.         age of the plaintiff;

b.         nature of the injury;

c.         severity and duration of pain;

d.         disability;

e.         emotional suffering; and

f.          loss or impairment of life.

I would add the following factors, although
they may arguably be subsumed in the above list

g.         impairment of family, marital and
social relationships;

h.         impairment of physical and mental
abilities;

i.          loss of lifestyle; and

j.          the
plaintiffs stoicism (as a factor that should not, generally speaking, penalize
the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163,  2005 BCCA 54).

[139]     Mr Szymanski seeks an award of $45,000 to $85,000 for non-pecuniary
damages.  He relies upon the following cases in support of this position: Kuskis
($65,000); Heppner v. Zia, 2008 BCSC 782 ($75,000); Klein v.
Dowhy, 2007 BCSC 1151 ($75,000) [Klein]; Stone v. Ellerman,
2007 BCSC 969 ($100,000); Love v. Pai, 2003 BCSC 900 ($100,000).

[140]     The defendants submit that the soft tissue injuries Mr. Szymanski
experienced were largely resolved by June 2007 and therefore the appropriate
award for non-pecuniary damages is between $10,000 and $15,000.  They rely on
the following cases in support: Brar v. Johal, 2002 BCSC 150 ($15,000); Hall
v. Day, 2006 BCSC 874 ($10,000); Kovacevic v. Leischner, 2000 BCSC
1492 ($12,000); Machala v. Roodenburg, 2002 BCSC 397 ($11,000); Mann
v. Klassen et al., 2001 BCSC 652 ($10,000); Liao v. Doe et al., 2005
BCSC 431 ($10,000); Al-Mandlawi v. Gara et al., 2005 BCSC 740 ($7,500); Pennykid
v. Escribano, 2004 BCSC 954 ($14,000); Darji v. Regimbald, 2006 BCSC
834 ($12,000); Read v. Marques, 2003 BCSC 167 ($13,500); Kumar v.
Canada Post Corporation and Nixon, 2006 BCSC 54 ($12,000).

[141]     The difficulties associated with trying to reconcile the awards in
such cases are well known.

[142]     I accept Mr. Szymanski’s evidence that he sustained a soft tissue
injury to the left side of his neck as a result of the accident and that he
still experiences pain in the left side of his neck that radiates into his
upper left trapezius muscle area.  The injury can be described as mild to
moderate in nature but has developed an element of chronic pain that continues
to bother Mr. Szymanski.  The pain is most evident when Mr. Szymanski
works.  His job as a hardwood floor installer is physically demanding although
he has been able to find contracts that are less demanding than what he undertook
prior to the accident.  This chronic neck pain still manifests itself some four
years after the accident, albeit significantly reduced from what it was
immediately after the accident and the two years following
the accident.

[143]     Mr. Szymanski is a stoic and determined person.  Despite the neck
and upper left trapezius pain he has tried to remain physically active but is
less active than he was prior to the accident.  He no longer goes for long
hikes, electing shorter slower walks, he no longer canoes, he hunts less than
he did prior to the accident, primarily by reducing the number of hours he goes
out hunting.  His injuries have impacted on his ability to contribute to
various household chores such as vacuuming and washing dishes, and he is not
able to conduct the home renovations at the pace he had set before the
accident.  He no longer socializes to the extent he used to prior to the
accident because of the chronic pain and fatigue he experiences.  His plan of
retiring and building and opening a bed and breakfast may well be compromised
by the continuing pain he experiences and thus is a further component in the
assessment of impairment and loss of his previous lifestyle.

[144]     Taking into account all of these circumstances, the referenced
authorities and the nature of Mr. Szymanski’s injuries, the fact that the
injury of real consequence was to the left side of his neck, and the upper left
trapezius muscles that lead to his left shoulder, the relatively enduring
nature of this injury, the pain he has suffered and may continue to experience
in the future, as well as the fact that he suffered some diminishment in
lifestyle, I assess non-pecuniary damages in the amount of $75,000.

[145]     Counsel for Mr. Szymanski argued that he should also receive damages
for “loss of housekeeping capacity” in the amount of $15,000 to $35,000 but
acknowledged that this could also be reflected in the amount of general damages
awarded with the award being at the higher end of the range.  In Klein
at para. 19, Mr. Justice Stewart declined to award a separate amount of damages
for “loss of housekeeping capacity” where the plaintiff did not maintain his
own household but simply helped with chores around the family home.  In that
case, the fact that other family members had to assist the plaintiff with some
chores and that he completed his chores while in pain was reflected in the
amount awarded for non-pecuniary damages.

[146]     No separate and distinct award of damages for loss of housekeeping
capacity is warranted in this case either.  The amount awarded for non-pecuniary
damages here reflects the fact that Mr. Szymanski’s overall lifestyle,
including his ability to do renovations and perform household chores, have been
impacted by his injuries.

2.       Past Income Loss

[147]     After the accident, Mr. Szymanski missed between one and one and a
half weeks of work as substantiated by Dr. Tomaszewski.  Dr. Dommisse estimated
that Mr. Szymanski was likely disabled from performing his occupational duties
for about four weeks due to the accident.  Mr. Szymanski testified that he
missed further periods of time and had to reduce his hours or leave jobs early
because of the pain he was experiencing and estimated
he might work about 10 hours less a week since the accident.  However, there is little in the way of objective evidence in the
form of business records such as invoices substantiating reduced work hours or
the actual loss experienced.

[148]     To establish his claim for past wage loss and loss of past
opportunities, counsel for Mr. Szymanski provided a wage loss chart based on Mr.
Szymanski’s claim that he is working about 10 hours less a week since the
accident.  Based on this anecdotal point, counsel calculated that Mr. Szymanski
lost about 40 hours a month since the accident up to December 2007.  Between
January 2008 and September 2008, counsel estimated that Mr. Szymanski lost four
hours a month from his pre-accident rate.  Based on an hourly wage rate of $30,
counsel argues that Mr. Szymanski has lost about $1,200 a month in gross salary
due to his injuries from the accident for a total of approximately $44,760.  I
find, however that this arithmetic wage loss calculation provided by counsel
for Mr. Szymanski is of little assistance to determining past wage loss and
loss of past opportunities.

[149]     The objective evidence, including Mr. Szymanski’s tax returns would
tend generally to contradict him on the point of loss of opportunities for past
wages.  The best that the objective evidence establishes is a slight decrease
in income in 2005.

[150]     As counsel for the defendants noted in her written submissions, Mr. Szymanski
is self-employed and it is not unusual for self-employed persons to have
irregular income, moreover the limited tax return information provided by Mr. Szymanski
confirms that irregular income is the norm for Mr. Szymanski.  Defence counsel
produced the table set out below to show a summary of Mr. Szymanski’s gross and
net income as reported in his tax returns between 1999 and 2007.

[151]     Mr. Szymanski simply provided income tax information in the form of
one-page summary sheets for most years and a four page return for 2007. 
Although he has testified about the intensity of his work before the accident
and how much slower he worked afterward, he has failed to provide any sort of
business records to substantiate his claims of reduced work hours.  Such
records could have indicated fewer invoices or less lucrative invoices
immediately following the accident, or established a pattern pre- and post-accident. 
Mr. Szymanski was repeatedly asked, and indeed ordered by Master Caldwell to
produce his business records on September 9, 2008.  His failure to produce such
evidence leads to the inference that there is little in the way of objective
evidence to substantiate this claim.

[152]     While I accept that Mr. Szymanski may have had to work more slowly
to some extent to perform his work after the accident, he has failed to produce
any financial or business records to demonstrate the difference between his pre-accident
and post-accident rate of work to assist in demonstrating and establishing the
lost opportunity he argues he experienced as a result of the soft tissue
injuries from the accident.

[153]     What the tax returns clearly demonstrate is that Mr. Szymanski’s net
income has been generally increasing.  The accident occurred in December 2004
so the years 2004-2005 provide clear evidence of the pre-accident and
post-accident income, but Mr. Szymanski’s net income shows no significant
change in these years.  After the accident Mr. Szymanski’s net income in 2005
was reduced by $376 in total.

[154]     By 2006, Mr. Szymanski’s net income had increased by $6,416 from his
2004 pre-accident income and by $6,792 from his 2005 post-accident income.  In
cross-examination Mr Szymanski was unable to specify business opportunities he
had lost due to his accident-related injuries, saying only that his work took
him longer.

[155]     Mr. Szymanski has failed to produce any evidence of contracts he was
offered and had to refuse, or contractors who were dissatisfied with his work. 
In fact, he admitted that his work situation has greatly improved since the
accident and that he started working under better work conditions a few months
after the accident.

[156]     I do accept Mr. Szymanski’s evidence that he missed one full week of
work immediately after the accident.  Dr. Dommisse estimated that Mr. Szymanski
was likely disabled from performing his occupational duties for four weeks. 
Based on this evidence it is likely that Mr. Szymanski did experience some form
of past wage loss and loss of opportunities over the immediate period of time
following the accident and he is entitled to be compensated for that specific,
identifiable loss.  Mr. Szymanski estimated he worked at least 40 hours a
week prior to the accident.  Based on Dr. Dommisse’s estimation that Mr.
Szymanski was likely disabled for four weeks, Mr. Szymanski is entitled to be
compensated for 160 hours of past wage loss and loss of opportunity at his wage
rate of $30 for a total of $4,800 in gross wages.

3.       Loss of Future Earning Capacity and Diminished Earning
Capacity

[157]     Mr. Szymanski seeks compensation for future loss of income and
diminished earning capacity suggesting damages in the range of $150,000 to
$300,000.

[158]     The defendants’ position is that there is no evidence upon which the
Court can conclude that Mr. Szymanski has suffered any loss in capacity such
that he has been rendered less valuable in terms of assessing his abilities as
a capital asset.  In particular, the defendants note that Mr. Szymanski continued
to work after the accident and is now employed in better and more lucrative
conditions than prior to the accident.

[159]     As Madam Justice Dickson noted in Kuskis at para. 151, a claim for loss of future
earning capacity raises two issues: (1) has the plaintiff’s earning capacity
been impaired to any degree by his injuries and, if so (2) what amount should
be awarded: Fox v. Danis, 2005 BCSC 102 at para 91 [Fox].

[160]    
In Palmer v. Goodall (1991), 53 B.C.L.R.
(2d) 44 (C.A.) at 59 Madam Justice Southin, writing for the Court of Appeal, stated:

Because it is
impairment that is being redressed, even a plaintiff who is apparently going to
be able to earn as much as he could have if not injured or who, with
retraining, on the balance of probabilities will be able to do so, is entitled
to some compensations for the impairment.  He is entitled to it because for the
rest of his life some occupations will be closed to him and it is impossible to
say that over his working life the impairment will not harm his income earning
potential.

[161]    
To determine the question of whether a plaintiff
has established an impaired future earning capacity the court considers the
following criteria established by Mr. Justice Finch (as he then was) in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.):

a.         Whether
the plaintiff has been rendered less capable overall from earning income from
all types of employment;

b.         Whether
the plaintiff is less marketable or attractive as an employee to potential
employers;

c.         Whether
the plaintiff has lost the ability to take advantage of all job opportunities
which might have otherwise been open to him, had he not been injured; and

d.         Whether the
plaintiff is less valuable to himself as a person capable of earning income in
a competitive labour market. (see also Rosvold v Dunlop, 2001 BCCA 1 at
para. 10 [Rosvold]; Kuskis at para. 152).

[162]     In Bedwell
v. McGill, 2008 BCCA 6 the Court of Appeal clarified the issue of
proof holding at para. 53 that it was necessary for the plaintiff to prove a
substantial possibility of a future event leading to an income loss.  The
plaintiff is not required to prove this loss on a balance of probabilities (see
also Steward v. Berezan, 2007 BCCA 150, at para. 17).  However,
there needs to be some “cogent evidence” to trigger the Brown v. Golaiy
considerations: Marcelino v. Francesutti, 2002 BCSC 1711 at para. 57; Carvalho
v. Angotti, 2007 BCSC 1760 at para. 59.  In Moore v. Cabral et al.,
2006 BCSC 920 at para. 78, Madam Justice MacKenzie stated that “ongoing
symptoms alone do not mandate an award for loss of future earning capacity.”

[163]     To quantify a loss of earning capacity the court conducts an
assessment, based on the evidence, rather than applying a purely mathematical
calculation: Rosvold; Kuskis at para. 153; Durand v. Bolt,
2007 BCSC 480.  For assessment purposes, income earning capacity is viewed as a
capital asset where all relevant negative and positive contingencies must be
considered: Kuskis at para 154; Fox at paras. 92, 102-103.  The
overall fairness and reasonableness of the award must also be taken into
account: Rosvold at para 11.

[164]     In terms of relevant contingencies that need to be considered, they
may be general or specific in nature.  Relevant contingencies can include such
things as the potential for improvements in health, opportunities for
advancement, as well as the usual chances and hazards of life: Dujic v. Hahn,
2006 BCSC 154 at para. 105; Kuskis at para. 155.

[165]     One approach to assessing the loss of future earning capacity is to
compare the likely future income of the plaintiff if the accident had not
occurred with the likely future income of the plaintiff now that it has
occurred: Kuskis at para. 154.  In this case no actuarial evidence was
adduced to provide assistance on this sort of baseline assessment.  The court
is simply left with Mr. Szymanski’s anecdotal evidence and that of his family
that he has had to turn down some contracts; has been unable to take on heavier
or bigger jobs; and, takes longer to complete his contracts than prior to the
accident.

[166]     Mr. Szymanski argues that he is limited in his abilities to work to
full capacity as a hardwood floor installer by pain and exhaustion that is
causally related to his injuries.  This continuing disability, argues Mr.
Szymanski, will be long-standing, if not permanent in nature.  He claims that,
but for the accident, he would have continued to work as a hardwood floor
installer for the foreseeable future.  Counsel argues that if the Court finds
that Mr. Szymanski has experienced a 30 to 40% loss in his income then with normal earnings growth potential and discounted for labour
market contingencies, the net present value of his “without accident” income
would be between $150,000 and $300,000.  In Mr. Szymanski’s submission, this
sum represents a fair and just assessment of his lost future income earning
capacity.

[167]     In the alternative, counsel for Mr. Szymanski submits that an award
of two years’ salary based on the income he could make would also represent a
fair and just assessment of his loss of future income earning capacity.

[168]     The defendants argue that Mr. Szymanski has neither suffered a loss
of future income earning capacity or a diminished earning capacity, nor
established this in the evidence.  They point to the fact that Mr. Szymanski
has continued to maintain full-time employment and returned to full-time work
within a month of the accident.  The defendants point to Mr. Szymanski’s income
tax returns for the years following the accident to argue that he has
consistently demonstrated an ability to undertake the demands of the heavy
labour of a hardwood floor installer, his income has grown and his business
opportunities have improved since the accident.  Additionally, the defendants
argue there is no reliable expert evidence that Mr. Szymanski’s ability to
work has been compromised by his injuries.  Consequently, argue the defendants,
in these circumstances no award under this head of damages should be made.

[169]     The difficulty with Mr. Szymanski’s claim of loss of future earning
capacity is that he has continued to work, albeit through pain, and has
continued to increase his salary since the accident.  The family’s evidence
about lost work opportunities was largely anecdotal and vague with no specific
information as to what contracts were turned down.  Similar observations apply
to Mr. Szymanski’s claim that it takes him longer to perform his contracts than
it did prior to the accident.

[170]     It is clear from the evidence that Mr. Szymanski is a dedicated and
hard working self-employed hardwood floor installer.  Despite his injury and
the ongoing neck and upper left trapezius muscle pain he experiences, he has
managed to continue to work although he occasionally he has to reduce his work
hours when he experiences difficulties with these areas and he is perhaps
slower in terms of his productivity.

[171]     Mr. Szymanski’s work ethic and positive attitude have remained
intact since the accident.  However, Mr. Szymanski tends to over exert himself
to his detriment.  On Mr. Szymanski’s evidence he is less able to complete the
same high volume of piecework and long hours he could complete prior to the
accident.  He tires more quickly due to the pain and is less capable of
performing jobs that require him to move heavy bundles of flooring.  In these
circumstances, it is apparent that there is an element of impairment to his
earning capacity and thus some impairment to his capital asset.

[172]     The evidence confirms that there are certain functions such as
kneeling for extended periods of time with his head in a flexion position or
lifting heavy weights above his waist repetitively that Mr. Szymanski will have
difficulty performing.  These are functions required of Mr. Szymanski on a
daily basis in his work.

[173]     Mr. Szymanski testified that his dream of opening a bed and
breakfast as a retirement project has been compromised by the injuries he
sustained in the accident due to the ongoing pain he has experienced.  While
his plans in this regard may well be on hold, the speculative nature of whether
this will actually be the case remains too remote as to require anything more
than an acknowledgment that it has been considered as a factor in my overall
assessment of the award for loss of future earning capacity.

[174]     Mr. Szymanski is presently 55 years old, has a strong and positive
work ethic and intends to continue work.

[175]     In applying the relevant legal principles and gazing "deeply
into the crystal ball" as described by the Court in Andrews, I am
left to make an assessment as it relates solely to Mr. Szymanski’s injury to
his neck and its impact on the upper left trapezius muscle.

[176]     Taking into account all of the evidence and the
many future contingencies that may arise, including the
prospect that Mr. Szymanski’s health will continue to improve if he works less
strenuously, the prospect of recovery or at least
improvement in his symptomology and that he will
continue to find contracts that are less demanding such as having the bundles
of flooring already delivered to the job locations and will require less heavy
lifting than he did prior to the accident, I conclude
that the plaintiff’s future earning capacity has been impaired by the injuries
he suffered in the motor vehicle accident and assess
his loss of future earning capacity at $60,000.

4.       Cost of Future Care

[177]    
In Izony v Weidlich, 2006 BCSC
1315 at para 70, Mr. Justice Masuhara addressed cost of future
care awards stating:

70        At the outset, I note that the
cost of future care award is "by its nature notional and not a precise
accounting exercise to determine the strict minimum" required by the
plaintiff: Strachan (Guardian ad Litem of) v. Reynolds, 2006 BCSC 362. 
In Courdin v. Meyers (2005), 37 B.C.L.R. (4th) 222, 2005 BCCA 91 at
[paragraph] 34, our Court of Appeal endorsed the following approach to dealing
with the many imponderable factors and contingencies in assessing damages in
this category:

Damages for cost of future care are a
matter of prediction. No one knows the future. Yet the rule that damages must
be assessed once and for all at the time of trial (subject to modification on
appeal) requires courts to peer into the future and fix the damages for future
care as best they can. In doing so, courts rely on the evidence as to what care
is likely to be in the injured person’s best interest. Then they calculate the
present cost of providing that care and may make an adjustment for the
contingency that the future may differ from what the evidence at trial
indicates. (Krangle (Guardian ad litem of) v. Brisco, [2002] 1 S.C.R.
205, 2005 SCC 9 at [paragraph] 21.)

[178]    
The plaintiff is entitled to be compensated for
all expenses reasonably necessary for his future medical care: see Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33
(S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.). The
test to be applied when the court considers awarding the cost of future care
was set out by McLachlin J. [as she then was] in Milina at 84 as
follows:

The test for determining the appropriate
award under the heading of cost of future care, it may be inferred, is an
objective one based on medical evidence.

These authorities establish:

(1)        that
there must be a medical justification for claims for cost of future care; and

(2)        that the claims must be
reasonable.

[ … ]

The award for
cost of care should reflect what the evidence establishes is reasonably
necessary to preserve the plaintiff’s health.

[179]     Consequently, in making an award for costs of future care, the court
must take into account both what is medically required and what expenses the
plaintiff will likely incur.  Items and services the plaintiff is unlikely to
use in the future cannot be justified as reasonably necessary aspects of the
cost of future care: Kuskis at para 164.

[180]     In the current case, Ms. Quastel made several recommendations for
future care items and services for Mr. Szymanski.  They include: attendance at
a multi-disciplinary chronic pain clinic; physiotherapy; massage therapy;
consulting with a kinesiologist; and a fitness/aquatic club membership.  Dr.
Hershler only recommended that Mr. Szymanski continue to receive massage
therapy.  Dr. Tomaszewski only continued referrals for massage therapy
after the first set of physiotherapy treatments.

[181]     Mr. Szymanski has provided a chart of estimated one-time and annual
costs that relate to his future care for the next five years compiled from the
report of Ms. Quastel.  The annual costs for the recommended treatments sought
by Mr. Szymanski total $10,750 and the one-time cost for attending the multi-disciplinary
chronic pain clinic totals $12,554.  Thus Mr. Szymanski seeks a total award of
$23,304 for costs of future care.

[182]     The defendants argue the evidence does not support any award for
cost of future care, particularly in light of the evidence that Mr. Szymanski
goes for periods of a year or more when he does not require any form of therapy
and no prescription for pain medication.

[183]     The evidence of Dr. Tomaszewski, however, contradicts this
assertion.  Mr. Szymanski was still being prescribed Tylenol 3 and
Naproxen in early 2008 and was still being referred to massage therapy and
undertaking massage therapy in April 2008.

[184]     The evidence establishes that Mr. Szymanski did not find
physiotherapy helpful in managing his pain, in fact it made him feel worse because
it aggravated and irritated the injured tissue.  There is nothing in the
evidence to suggest that Mr. Szymanski would return to physiotherapy given
the difficulties he experienced when first referred to it.  In these
circumstances, an award for physiotherapy is unjustified.  Similarly, it is
clear that Mr. Szymanski has not received any assistance from attending at a
kinesologist and the evidence does not disclose that he intends to do so in the
future.  Moreover, the opinions of the doctors who have assessed and treated
Mr. Szymanski do not recommend such treatment and so there appears to be no
medical justification for this type of treatment.

[185]     As to the issue of a gym membership for five years, while Ms.
Quastel may recommend it, Mr. Szymanski did not indicate he would use a gym
membership or attend at an aquatic centre gym or pool
in the future or that he had ever tried this in the past. In these circumstances, an award for a
gym membership is unjustified and entirely speculative as there is no evidentiary
foundation to support the inference that it is medically necessary or that the
plaintiff is likely to use these items in the future.

[186]     Mr. Szymanski has received assistance and relief from attending at a
massage therapist in the past and it is entirely likely that future treatment
using this modality would be of assistance to him in his pain management.  Dr.
Tomaszewski noted that even in April 2008 Mr. Szymanski appeared to be
improving and finding relief from massage therapy which he was still attending
every four weeks.  Dr. Hershler confirmed the need for this form of treatment
as a method of assisting in pain management.  The present value for massage
treatment for the next three years, as outlined in the evidence, is $3,720.

[187]     Mr. Szymanski did not address in his testimony any aspect of
attending a multi-disciplinary chronic pain management program.  I do not
conclude from this, however, that such a service, if made available, would be
unutilised.  On the contrary, given his frustration over the pain he still
continues to experience and the ongoing nature of the pain, I am satisfied that
Mr. Szymanski would benefit from attending such a program and would likely do
so given the opportunity.  The cost of attendance at a multi-disciplinary pain
clinic varies between $11,800 and $13,308 according to Ms. Quastel.  Mr.
Szymanski seeks $12,554 for this service, representing an average of the two
amounts.

[188]     Taking into account all of the evidence, I award the plaintiff
$16,274 for the cost of future care.

5.       Special Damages

[189]     The parties agree that Mr. Szymanski is entitled to an award of $746
for special damages for expenses incurred for the past cost of care.  I accept
that such an award is justified in the evidence.

6.       Adjustments to Award

[190]    
The defendants seeks to have one adjustment made
to any damages awarded to Mr. Szymanski.  The defence urged a reduction of any
award based on the argument that there was a measurable risk of Mr. Szymanski
experiencing problems with his neck or cervical spine even absent the
accident.  The defence also argued that while the degenerative changes to Mr. Szymanski’s
cervical spine were not caused by the accident, the degenerative disc condition
is a contributing factor to the ongoing pain that Mr. Szymanski might be
experiencing.  Accordingly, any award for pain should have an appropriate
deduction where some part of the pain is likely something that Mr. Szymanski
would inevitably experience as a result of the pre-existing degenerative changes
to the cervical spine.

[191]    
In Athey at 473 the Court said:

The defendant
need not put the plaintiff in a position better than his or her original
position. The defendant is liable for the injuries caused, even if they are
extreme, but need not compensate the plaintiff for any debilitating effects of
the pre-existing condition which the plaintiff would have experienced anyway.
The defendant is liable for the additional damage but not the pre-existing
damage. … Likewise, if there is a measurable risk that the pre-existing
condition would have detrimentally affected the plaintiff in the future,
regardless of the defendant’s negligence, then this can be taken into account
in reducing the overall award. [Emphasis in the original, citations omitted]

[192]     The
December 7, 2004 x-ray of Mr. Szymanski’s neck revealed degenerative changes at
the C5-6 and C6-7 vertebrae.  As Dr. Tomaszewski explained, these are
age-related developments and normal for a man of Mr. Szymanski’s age.  Mr. Szymanski
had never complained of difficulties or pain in his neck prior to the accident.

[193]     There is no question that Mr. Szymanski has degenerative changes to
his cervical spine at the C5-6 and C6-7 vertebrae level as noted in the x-rays
taken on the day of the accident and that they likely existed prior to the
accident.  However, the medical evidence establishes that Mr. Szymanski never
encountered any episode of neck pain prior to the accident and that the
degenerative changes were asymptomatic.  There simply is no evidence or opinion
that asserts a predisposition to neck pain as a result of these changes, let
alone any discussion about the severity or consequences of such pain if it did
exist.

[194]     Nor do the opinions quantify or address the likelihood of such neck
pain developing in the future.  The best Dr. Tomaszewski could say was that it
is possible that the degenerative changes could contribute to the pain and that
it was speculative as to whether the degenerative
changes to Mr. Szymanski’s neck could cause pain in the absence of the motor
vehicle accident.  Based on this evidence, I do not believe that there was a
measurable risk that even without the accident Mr. Szymanski’s cervical
spine would have been affected in any meaningful way by the events of
day-to-day life.

[195]     Thus, the quality of the evidence on the contribution or otherwise
of the degenerative changes in Mr. Szymanski’s neck contributing to his current
ongoing neck pain is entirely speculative.  The evidence establishes there were
no debilitating effects, or any effects, from the pre-existing condition of the
degenerative changes in Mr. Szymanski’s neck before the accident.  Nor does the
evidence support the notion that the degenerative changes in Mr. Szymanski’s
neck created a measurable risk of the pre-existing condition “detrimentally
affecting the plaintiff in the future”.

[196]     There simply is no evidence to support the assertion that the
asymptomatic degenerative changes in Mr. Szymanski’s cervical spine at the C5-6
and C6-7 level were accelerated or aggravated by the accident or that Mr.
Szymanski falls within the classic “crumbling skull” category.  Mr. Szymanski’s
condition is entirely distinguishable from the plaintiff in Matell v. Hardy
(1995), 54 B.C.A.C. 1 (B.C.C.A.) where the plaintiff had degenerative changes
to her cervical spine prior to a motor vehicle accident which necessitated the
surgical removal of the degenerative disc sometime after the accident.  In Matell,
the Court of Appeal upheld the trial judge’s finding that the pre-existing
degenerative disc changes in the plaintiff’s neck were 50% responsible for her
post-accident condition.

[197]     In this case, the evidence does not support a finding that the
degenerative changes in this area of Mr. Szymanski’s neck contributed to the
pain he experiences as a result of the accident or that the changes constitute
the kind of measurable risk of a pre-existing condition that would
detrimentally affect Mr. Szymanski in the future as contemplated by the Athey
decision.  Accordingly, the condition does not warrant any adjustment to
the damages that I have found appropriate.

VI.      Conclusion

[198]     In conclusion, I award Mr. Szymanski total damages of $156,820 as
follows:

[199]     Mr. Szymanski is also entitled to pre-judgment interest at the
prevailing rate and costs, unless the parties seek to make further submissions
on the issue, in which case notice must be given to the Court within 30 days of
the filing of this judgment.

“The Honourable Madam Justice Ker”