IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100126

Docket:
M080106

Registry: Vancouver

Between:

Neale John Harris

Plaintiff

And

Efthimios Zabaras

Defendant

SUBJECT TO
RULE 66

Before: The Honourable Mr. Justice Schultes

Reasons for Judgment

1.       Overview

[1]            
The plaintiff, Neale Harris, was injured in a
motor vehicle accident on January 28, 2006 in Surrey. His pick-up truck was
struck from behind by another pick-up truck driven by the defendant, Efthimios
Zabaras, while the plaintiff was stopped at a red light. The plaintiff suffered
ongoing neck and arm pain and headaches as a result.

[2]            
Liability for the accident has been admitted on
behalf of the defendant and the fact that the accident caused the injuries is
not seriously disputed. The main issues are:

1.       The severity and duration of the plaintiff’s injuries, and
the resulting amount of non-pecuniary damages;

2.       Whether he has made sufficient efforts to mitigate the
effect of these injuries;

3.       Whether he is entitled to compensation for loss of future
earning capacity;

4.       The
reasonableness of some of his special damages claims; and

5.       The availability of damages for his loss of housekeeping and
home maintenance capacity

The parties also differ slightly on the
amount that should be awarded for cost of future care.

2.       Evidence of the Plaintiff and
Supporting Witnesses

a.       Personal and Employment
Background

[3]            
The plaintiff is 34 years old. He is married and
has a 12 year old daughter. He works as a used car sales manager for a Honda
dealership in Port Moody. He has a high school education and a residential care
attendant certificate from Kwantlen College. Before he began his career in the
auto sales business he worked for about five years as a nurse’s aide at Langley
Hospital.

[4]            
He began in the auto sales business as a
salesman in 2001. He has progressed through responsible positions at several
dealerships. At the time of his accident he was a sales manager at a Chrysler
dealership in South Surrey. Later in 2006 he moved to his present employer and
position.

[5]            
He has been able to earn a good living in this
kind of work. From earnings of $43,000 per year in 2003 he has progressed to
more than $118,000 in 2007 and almost $99,000 in 2008. His pay is based on the
number of vehicles sold. He says that although he would have preferred a more
active occupation, he has remained in car sales because he is good at it and
his earnings have been high.

[6]            
However, there was a significant downturn in
auto sales in the first part of 2009, as part of the general economic
recession, and in the first five months of that year the plaintiff earned only slightly
more than half the amount that he had earned in the corresponding period of the
previous year. As a result he is concerned about the economic security of his
family and is keen to find another job that will increase his earnings to the
level he had previously enjoyed.

b.       The Accident

[7]            
The accident occurred while the plaintiff was
driving a GMC truck belonging to the dealership. He and another employee had
gone for coffee and were returning to the workplace. He was stopped at a red
light when the truck driven by the defendant struck his vehicle from behind
with what he described as “pretty severe force”. The large metal bumper and
hitch on the back of the plaintiff’s truck were bent down by the impact and the
defendant’s front bumper was smashed into its grille.

[8]            
Just before the accident, it became apparent to the
plaintiff, based on his observations in his rear view mirror, that the
defendant’s vehicle was not going to stop. As a result, the plaintiff had put
out his right arm to “guard” his passenger and his head was turned to the right
when they were hit.

c.       Effects of the Accident

[9]            
Although he was able to walk away from the
accident under his own power and did not require medical attention at the
scene, the plaintiff went to the emergency department of his local hospital the
next day. He was placed in a neck brace and given Tylenol 3’s. He followed up with
Dr. Martens at his local family practice about a week and a half later and then
with Dr. McIntosh, his regular family doctor, within a few months.

[10]        
Before the accident he was an avid and energetic
handyman, performing a variety of home and yard maintenance and repair tasks
for himself, friends and family members. He renovated the two homes in which
his family lived before their present one, adding to their value. He also built
a substantial structure around a trailer on recreational property that he owns
in Washington State, largely on his own.

[11]        
It is clear that he derived a good deal of
self-esteem from his ability to perform these tasks. His wife and his long-time
friends, Ron and June Grieve, gave evidence of the plaintiff’s enthusiasm for
“handyman” activities, including his enjoyment of helping others with their
tasks.  Mr. Grieve and Les Holm, who is both the plaintiff’s former employer in
the auto sales business and his neighbour at the plaintiff’s recreational
property in Washington, also described his extensive construction efforts at
that site

[12]        
His favourite recreational activity before the
accident was dirt biking, although he was only able to engage in it a couple of
times per season.

[13]        
His health was also generally good before the
accident. The main interruptions were two back injuries that he suffered while
working as a nurse’s aide and a period of depression beginning in 2001 that
arose from stressors such as the separation of his parents. There do not appear
to have been any limitations on his ability to work or his enjoyment of life as
a result of these health issues.

[14]        
The accident has changed all of this for him. The
plaintiff says that his condition “regressed severely” in the first month
following the accident. His left arm was “painful and aching”, his left hand
was “cold and tingling”, his neck was stiff and sore, with a limited range of
motion, and he suffered from severe headaches almost constantly. The headaches
would start at the base of his neck on the right side and then travel up the
neck to the back of his right eye. His symptoms remained at this acute level
for the first four to six months, after which he was able to obtain relief from
some of them.

[15]        
As of the trial dates, his left arm still had an
“aching feeling” – a general one which changes depending on the severity of the
work he is doing. His neck still had some stiffness. Doing anything that
involves him looking overhead will cause it to stiffen up. His headaches are
the most improved symptom since the accident. They are not as frequent as they
were previously and are not as severe when they do occur.

[16]        
He sleeps poorly because of the discomfort he is
in and goes to work exhausted as a result. His mood has been depressed because
of the lack of significant improvement in his symptoms.

[17]        
The plaintiff is now unable to do many of the
demanding physical tasks that he took on previously, either at home or on his
recreational property, and must hire others to carry them out, at considerable
cost. He is also no longer able to help friends and family with their repair
and maintenance needs. This inability is very distressing to him. His wife and
Mr. and Mrs. Grieve gave evidence of his struggles in this regard and his level
of distress in the face of his reduced capacities.

[18]        
Mrs. Harris in particular gave evidence of the
debilitating effect of the injury on her husband’s ability to sleep at night
and the large quantities of Advil that she purchases for him. They have also
had to purchase a more expensive home than their previous two, because the
plaintiff is no longer able to do renovations to add value to it. She was
mistaken however in her assertion that the accident has deprived him of the
pleasure of playing Nintendo Wii games with their daughter. It was pointed out
to her on cross-examination that this product was not available for sale until
after the date of the accident.

d.       Offer of Alternative Employment

[19]        
Fortunately the sedentary nature of his
managerial responsibilities in auto sales means that his injuries have not affected
his ability to work in such a position.

[20]        
However, to address the reduction in his sales
earnings resulting from the current economic situation, he would like to accept
a long-standing offer from Mr. Grieve, who is a truck driver in the
pipeline industry, to work as a “swamper”, which involves assisting the driver
in loading and unloading whatever is being transported. He could expect to earn
up to $2,900 per week at this job, which involves going away for extended
periods of time to job sites across Canada.

[21]        
Unfortunately the job involves very hard
physical labour for 12 to 14 hours per day and he does not believe that he is
up to it since his accident.

[22]        
Mr. Grieve had offered the plaintiff this
position many times before the accident, both when he was working as a nurse’s
aide and when he was in auto sales, but he never pursued it.

[23]        
Mr. Grieve confirmed the availability of this
position and the nature of the work involved in his evidence. He said that
during the years before the accident he asked the plaintiff eight to ten times
to become a swamper. The plaintiff’s response was always that he was doing well
in the auto industry and could make close to what he would earn “on the
pipeline”.

[24]        
After the accident he also offered the plaintiff
the position, “as more of a favour to him to get him away from the low income”
in the auto industry job, but he does not think the plaintiff has the necessary
strength anymore. The plaintiff turned the offer down, citing the same reasons.

e.       Treatment

[25]        
The plaintiff’s pursuit of traditional medical
support in the treatment of his injuries has been somewhat sporadic.

[26]        
After the initial medical consultation with
general practitioners in the months following the accident, during which he was
referred for a consultation with a neurologist, the plaintiff was content to
pursue what are known as “passive modalities” of treatment: principally massage
therapy, aided less frequently by chiropractic and acupuncture, until earlier
this year, when he saw Dr. McIntosh again. His explanation for that choice was
that he was “doing what he needed to do” to reduce his symptoms. His massage
therapist acted as his primary caregiver, referring him on to a chiropractor
and acupuncturist within the same wellness centre.

[27]        
In February 2009 the plaintiff was told by Dr.
Travlos, the rehabilitation medicine expert who was assessing him for this
case, that massage therapy was not doing anything for him, so he returned to
Dr. McIntosh, after about a three year gap, to seek other suggestions. In cross-examination
he agreed that he had not followed the suggestions that Dr. Travlos had given
him for a structured rehabilitation program when they met in 2007, nor had he
exercised at a gym from the date of the accident until 2008.

[28]        
After seeing Dr. McIntosh, he began to attend
treatment with a physiotherapist. According to the plaintiff, Dr. McIntosh said
that he “could try it if he wanted”. He also described the physiotherapy
exercises as being similar to the ones that his massage therapist had
instructed him to do at home.

[29]        
The plaintiff took the position in his evidence
that he pursued massage therapy for such a long period because Dr. McIntosh and
the neurologist had told him that was what he should be doing. However, in
cross-examination he conceded that at the time he saw those doctors in 2006 he
was not actually attending for massage therapy and that in fact he received no
massage treatments between March and July of that year. He also agreed that
during what he described as the ”acute” stage of his injury – the first four to
six months – he only attended for massage twice and took no other treatments.

[30]        
Since the plaintiff has started seeing Dr.
McIntosh again, he has received two rounds of injections into his neck area,
one with an analgesic and one with cortisone. These have had some beneficial
effect on his headaches. Dr. McIntosh has also prescribed him a pain control
medication, which has had virtually no effect, as well as an anti-depressant.

3.       Medical Evidence

a.       Overview

[31]        
There is no issue among the medical expert
witnesses who gave evidence in this trial that the plaintiff suffered soft tissue
injuries in the accident, which have resulted in headaches and pain to his neck
and left arm. The existence of other more serious injuries – a brachial plexus
injury or thoracic outlet syndrome – has been suspected by some of these
practitioners, but no conclusive diagnosis of them has been possible. One of
the experts positively rules out the existence of a brachial plexus injury.

[32]        
There is also no issue among these witnesses
that the plaintiff continues to experience pain from his injuries and that his
symptoms will persist, albeit with some possibility of improvement. There is
some minor disagreement between the medical witnesses called on behalf of the
plaintiff and the defendant’s expert is on the question of how much pain is
actually experienced by the plaintiff as a result of the injuries.

b.       Dr. Dan McIntosh

[33]        
Dr. McIntosh first saw the plaintiff on June 16,
2006. In his examination he noted tenderness in the plaintiff’s neck and
shoulder areas and a decrease in the range of motion in his neck. He also noted
the plaintiff’s complaints of numbness in his left arm and a tingling sensation
in two of the fingers of his left arm.

[34]        
Based on the examination, the accident history
and the opinion of Dr. Smyth, the neurologist to whom the plaintiff had been
referred by Dr. Martens on his first visit after the accident, Dr. McIntosh
thought that the plaintiff had a possible brachial plexus injury or even a
nerve root avulsion, a much more serious injury in which nerves are actually
torn out of their proper areas during an accident. 

[35]        
He discussed a treatment plan with the plaintiff,
who was to take anti-inflammatory medication, have an MRI scan done on his
brachial plexus area and use ice and heat on the affected areas. He was not
sure if he recommended physiotherapy to the plaintiff but it is his practice to
do so in situations like this. He said that he has “no problem” with patients
pursuing massage or chiropractic instead if they are more comfortable with
them.

[36]        
The MRI did not reveal any physical signs of the
other conditions that he had suspected. Dr. McIntosh asked his assistant to schedule
the plaintiff in for a follow-up appointment after the MRI results were
received.

[37]        
Unfortunately, the plaintiff did not come to see
him again until March 2009. Dr. McIntosh agreed on cross-examination that this
“seemed a fair length of time” between visits, but his impression was that the
plaintiff had seen a specialist in the interim and was “doing what he could”
about his symptoms. During the March 2009 visit, the plaintiff told him that he
had stopped massage therapy on Dr. Travlos’s recommendation and that his pain
was now increasing.

[38]        
Dr. McIntosh performed a further examination on the
plaintiff during that visit. His assessment was that there was ongoing soft
tissue injury pain, primarily to the left arm and neck. In his opinion, the
severity of the plaintiff’s pain was “mild to moderate”.

[39]        
The plaintiff agreed with Dr. McIntosh’s suggestion
that he should focus on a gym program to build up his strength. He also
discussed “trigger point” injections with the plaintiff, which involve
injecting long-lasting painkillers into the base of the neck, to reduce the
headache symptoms. As I have described previously, the plaintiff has since
received several of these injections from Dr. McIntosh and this has resulted in
some reduction of his headaches.

[40]        
Dr. McIntosh noted that the plaintiff has had a
long period using the “passive modalities” of massage, acupuncture and
chiropractic. He thinks that such modalities should play “little role” in
future treatment, which instead should focus on an active fitness program with
stretching and strengthening. He said that in cases like this it is important
to transition into an active phase in which the patient works with a trainer to
improve his range of motion.

[41]        
As to a prognosis, Dr. McIntosh stated:

[…] I would anticipate that he will have
some ongoing symptoms in the intermediate and possibly long term. The fact
that it has been so long since the MVA and he is having persistent symptoms is
not good from a prognostic point of view. I would not anticipate any
negative progression of the symptoms. Rather I would anticipate that they will
gradually improve with time but may not completely resolve.

[Emphasis added.]

c.       Dr. Peter Fry

[42]        
Dr. Fry is a vascular surgeon, who saw the
plaintiff in November, 2006. He found no signs of thoracic outlet syndrome, but
said that the symptoms were compatible with a brachial stretch [plexus] injury.
He noted that the plaintiff was vulnerable to an exacerbation of his existing
problems if he ever received a similar injury in the future. He recommended
that the plaintiff be seen by a physical medicine specialist for further
evaluation and management.

d.       Dr. Andrew Travlos

[43]        
Dr. Travlos is a physiatrist and rehabilitation
specialist who saw the plaintiff twice at the request of the plaintiff’s counsel,
first in May 2007 and then in February 2009.

[44]        
During the 2007 examination, his principal
findings were of soft tissue injury symptoms in the left side of the plaintiff’s
neck and upper back. With respect to the plaintiff’s arm symptoms, no clear cut
diagnosis was possible as between the possibilities of thoracic outlet syndrome
or soft tissue referral pains from the neck and shoulder.

[45]        
Dr. Travlos identified two major issues that the
plaintiff needed to address.

[46]        
First, his sleep disruption due to his pains
needed to be treated through the progressive use of several medications. 

[47]        
Second, the plaintiff needed to embark on a
structured conditioning program. Dr. Travlos noted that:

He seems to protect the arm and is certainly
not giving full effort when asked to resist activity [i.e. during testing].
While this may well be a pain feature, if he continues to protect the arm this
way the pain issue will perpetuate itself based on inactivity alone.

[Emphasis added.]

[48]        
To avoid this outcome, Dr. Travlos recommended a
progressive strengthening, first of the neck and upper back muscles, followed
by the rotator cuff muscles and the rest of the upper extremities. He described
the nature of the recovery process as follows:

The plaintiff will require supervision to
reach this endpoint as his pains will definitely flare with this activity. He
needs to be guided through this process and needs to see the end point of
recovery as the equivalent to climbing a long staircase, taking one small step
at a time, before reaching the top. He needs to be cautioned not to do too much
at any one time and to really only slowly increase the activity level
progressively.

…

It is my opinion
that he should still show further recovery, but this does remain to be seen.
Enrolment and treatment as described above before a more definitive opinion
regarding treatment is possible. The lack of change to date is a little
concerning in that it may be a harbinger of a poor outcome. Nevertheless this
all remains to be seen and a more definitive prognosis would be possible in a
year or so from now.

[49]        
In addition to putting these recommendations in
his report, Dr. Travlos advised the plaintiff, in a general way, of the type of
medications that could assist him in sleeping as well as the need for him to
become more active through a conditioning program.

[50]        
When Dr. Travlos saw the plaintiff again in
2009, he noted that he had improved “somewhat” since 2007. The pains were less
continuous and had compartmentalized into separate spots, rather than being one
large area. The numbness in his hand had decreased and his mood was “a little
better.” However, the overall level of improvement was disappointing:

[…] The plaintiff has not improved
anywhere near what one would have hoped or expected over time since I last saw
him. This was an issue I raised when I last saw him as his complaints, when I
saw him at that time, were not too dissimilar to the complaints that he had in
his records over time. In other words he had not improved as much as one would
have hoped at that time either. With the lack of major changes over time and
the amount of time that has passed, it is my opinion that the plaintiff has
plateaued and will continue to have the same ongoing symptoms he has now into
the future.

[Emphasis added.]

[51]        
Dr. Travlos noted that his recommendations with
respect to improving the plaintiff’s sleep had not been followed and he
strongly recommended that they be considered, as sleep was his “biggest issue
and could be impacting on his pains”.

[52]        
He also reemphasised the importance of the
structured conditioning program that he had recommended in 2007 and noted that the
plaintiff presented as being “quite deconditioned and probably more so than
when last seen”.

[53]        
He agreed in cross-examination that he was “a
little bit” surprised to find that his recommendations had not been followed.
He would have expected the plaintiff to improve by following them but he was
unable to say by how much. He also would have expected someone in the plaintiff’s
position to seek some attention for his continuing sleep problems from his
doctor. He recommended that the plaintiff no longer continue with his passive
treatments (massage, chiropractic and acupuncture), as there was no reasonable
expectation that they would alter his outcome. Instead the plaintiff “would be
better served by trying to manage and control his pains himself by going to the
gym three or four times a week and by using simple medication [Tylenol or
Advil] to control the pain”.

[54]        
In cross-examination Dr. Travlos explained that
it was “not completely unusual” for patients to pursue passive therapies rather
than active ones – a lot depends on a patient’s rapport with and trust of a
particular caregiver.

[55]        
Dr. Travlos’s diagnosis remained consistent with
his 2007 assessment, with the majority of the plaintiff’s pain being due to the
soft tissue injury to his neck and shoulder. He also commented helpfully on the
extent of the plaintiff’s pain and its effect on his physical activity:

Despite the ongoing nature of his pains, I
would not recommend that the plaintiff restrict himself. I would encourage him
to push the boundaries of his activities within the realm of the pain. By being
active, he will almost certainly flare his symptoms up, but he will not be
physically harming himself. He simply has to establish just how much he can do
and what he has to do to circumvent flaring his symptoms. The more active he
is, the better he will do. Realistically, however, he has enough symptoms now
that will render him with some limitations over the longer term. His concerns,
therefore, about not being able to do the more physical work in the home are real.
This does not mean that he should not attempt to do it, but he will generally
pay the consequences for doing such activities. He will have to break up the
activities and do them in smaller amounts over longer periods of time. This
will reduce the efficiency of getting the work done […] He will have to take
breaks in order to get the work done. Similarly, the plaintiff will have to
avoid doing more forceful activities such as dirt bike riding […]

[Emphasis added.]

e.       Dr. Virginia Devonshire

[56]        
Dr. Devonshire is a neurologist who conducted an
independent medical examination of the plaintiff on behalf of the defendant on
April 3, 2009.

[57]        
She was able to rule out any neurological cause
for the plaintiff’s symptoms and found no clinical or radiologic findings that
could support a diagnosis of brachial plexus injury. The most likely origin of
the symptoms, in her opinion, is musculo-skeletal, that is, as the result of
soft tissue injury.

[58]        
As Dr. Travlos had, Dr. Devonshire noted the
plaintiff’s primary reliance on passive therapies as well as the fact that they
provide only temporary relief. Also as Dr. Travlos had, she observed that the
symptoms have reached a plateau.

[59]        
In the case of each area of injury, she
described efforts that could be taken to improve his situation:

[Neck pain:] He could likely still get
some improvement with a more active physical program of stretching and
strengthening, improved sleep and pain management, with medication to allow
increased exercise tolerance.

….

[Headaches]: Again, a program of stretching
and strengthening could be of benefit…he has not had any significant
management for these headaches. He has not tried any headache prophylactic
drugs such as a tricyclic anti-depressant. He has had a suboccipital block [described
by Dr. McIntosh as “trigger point injections”] performed by his family
physician, but possibly this was not an adequate trial. This could be re-tried
by a physician experienced in these blocks. I think he could still get
improvement in these headaches with exercise, stretching, improved sleep and a
tricyclic anti-depressant.

…

[Left arm pain:] Again he should probably
have engaged in a more active, gradual physical exercise program to stretch and
strengthen the shoulder muscles. Given his description of his pain, he should
have had a trial of pain modulating medications […]

[Emphasis added.]

[60]        
Dr. Devonshire also made some significant
observations about the level of pain experienced by the plaintiff and its
effect on his activities:

The plaintiff may have a tendency to
over-rate his pain. He describes severe pain, [in his left arm] yet has not
required any significant analgesia, and did not require any time from work.
This may lead to avoidance of the exercises that may benefit him.

I think some improvement
can still be seen with improved management of these symptoms. However I think
he will likely have persistent symptoms of suboccipital pain, intermittent
headaches and left arm pain. These may limit more strenuous activities but
should not impair his work. He has to limit some recreational activities, like
dirt-biking, extensive skiing but if he pre-medicates with an anti-inflammatory
he can cycle, ski, etc.

[61]        
Overall, she described the plaintiff’s injuries
as “mild, but persistent”.

4.       Non-pecuniary Damages

a.       Legal Framework

[62]        
The purpose of non-pecuniary damages is to
compensate a plaintiff for “pain, suffering, loss of enjoyment of life and loss
of amenities”: Jackson v. Lai, 2007 BCSC 1023 at para.134.

[63]        
A helpful list of factors to consider in assessing
the amount of such an award was set out by Kirkpatrick J.A. in Stapley v.
Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19 at para. 46:

46.       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
plaintiff’s stoicism (as a factor that should not, generally speaking, penalize
the plaintiff: Giang v. Clayton, [2005]
B.C.J. No. 163, 2005 BCCA 54).

[64]        
In the Stapley decision at para. 45,
Kirkpatrick J.A. also included the following helpful passage from Lindal v.
Lindal, [1981] 2 S.C.R. 629, 129 D.L.R. (3d) 263 at 267:

Thus the amount
of an award for non-pecuniary damage should not depend alone upon the
seriousness of the injury but upon its ability to ameliorate the condition of
the victim considering his or her particular situation. It therefore will not
follow that in considering what part of the maximum should be awarded the
gravity of the injury alone will be determinative. An appreciation of the
individual’s loss is the key and the "need for solace will not necessarily
correlate with the seriousness of the injury" (Cooper-Stephenson and
Saunders, Personal Injury Damages in Canada (1981), at p. 373).  In
dealing with an award of this nature it will be impossible to develop a
"tariff". An award will vary in each case "to meet the
specific circumstances of the individual case" (Thornton at
p. 284 of S.C.R.).

[65]        
That said, other cases will assist the court by
serving as a guide in arriving at an award that is just and fair to both
parties: Kuskis v. Tin, 2008 BCSC 862.

[66]        
Adjusted to current dollars, a guide to the
range of awards for soft tissue injuries accompanied by emotional problems such
as sleep disruption, nervousness or depression is approximately $42,000 –
$150,000: Unger v. Singh, 2000 BCCA 94 at para. 32.

[67]        
Based on an analysis of the factors in this case
and of what are said to be comparable decisions, the plaintiff seeks
non-pecuniary damages in the range of $80,000, while the defendant submits that
a range of $25,000 – $40,000 is more appropriate.

b.       Effects of the Accident

[68]        
When characterizing the effects of the plaintiff’s
injuries for the purposes of non-pecuniary damages, I do not think it is
helpful to attempt to choose between the labels of “mild” and “mild to
moderate” that have been offered by two of the medical witnesses. At the end of
the day, what is important is the pain the plaintiff experiences as a result of
the injuries and how that impacts his life.

[69]        
In that regard, while there has been some reduction
in the frequency of the plaintiff’s headaches, he remains subject to neck and
left arm pain whenever he undertakes strenuous physical activity. As Dr.
Travlos put it, “he will generally pay the consequences for doing such
activities”.

[70]        
The extent of his resulting disability is that
he must either avoid strenuous physical activity or divide it into more
manageable chunks that will not provoke symptoms. This compromises his ability
to engage fully in the recreational building or maintenance activities that
have previously been a source of pleasure to him and in turn has led to a level
of depression in the face of his more limited prospects.

[71]        
Even if he is able to relieve his symptoms
somewhat through the steps that have been recommended to him, the consensus of
medical opinion is that they will persist.

[72]        
However I note that the plaintiff speaks of
being unable for the most part to engage in these activities any longer whereas
Dr. Travlos has encouraged him to continue to be as active as possible, bearing
in mind that his capacity for working continuously will be reduced and that he
will experience pain as a result.

[73]        
This relates to Dr. Devonshire’s observation
that the plaintiff may be over-rating his pain, because he has not required any
“significant analgesia” ( by which I think she means prescription- level
painkillers) to control it.

[74]        
While I am satisfied that the physical symptoms
that the plaintiff, his wife and the Grieves have described are genuine, he nevertheless
appears to view them as imposing somewhat greater limitations on his physical
activities than may actually be the case.

[75]        
Perhaps the fairest way to characterize the
effect of his symptoms is that they place meaningful restrictions on his
ability to pursue strenuous physical activities in the manner and to the extent
that he previously did.

c.       Authorities

[76]        
The parties rely on the following cases as
guides to the appropriate award for non-pecuniary loss. These awards do not
include any reduction for failure to mitigate the loss. I have briefly
summarized the relevant facts of each:

Authorities submitted by the plaintiff:

1.    
Foran v. Nguyen, 2006 BCSC 605

a.         The plaintiff: 31 year old
student support worker;

b.         Injuries and Effects: “Excessive
stretch injury” (multiple soft tissue) to neck area. Chronic neck and upper
back pain and headaches as well as constantly tired due to poor sleep. Significant
deterioration of the plaintiff’s self-esteem as a result of decline in energy.
Plaintiff would be left with some degree of pain on an indefinite basis as well
as an increased susceptibility to re-injury;

c.         Award: $90,000;

2.     Schroeder v. Shaw, 2008 BCSC 1757

a.         The plaintiff: 32 year old former
landscaper, now a business management student;

b.         Injuries and Effects: Injuries
to his back, hip and neck. The bulk of his chronic pain came from his neck – he
often experienced headaches following the onset of neck pain. He would have
“significant neck pain for the foreseeable future”. Hip and neck pain was
experienced only when he engaged in certain physical activities. The injuries
had a major effect on his ability to perform home and garden maintenance and to
engage in the vigorous sports he formerly enjoyed. His mood also deteriorated.
The judge found that “the injuries have had significant effects in all aspects
of [the plaintiff’s] life”.

c.         Award: $75,000

3.    
Durand v. Bolt, 2007 BCSC 480

a.         The plaintiff: 45 year old
bartender and taxi driver.

b.         Injuries and Effects: Developed
thoracic outlet syndrome. “Debilitating level of pain and suffering as a
result”. Uncomfortable all the time, with nagging headaches and aching
shoulder. Permanent disability when engaging in certain types of activities.

c.         Award: $75,000

4.    
Collyer v. Boon, 2008 BCSC 1745

a.         The Plaintiff: University
student and part-time bartender;

b.         Injuries and Effects: Soft
tissue injuries to neck and back area. Chronic pain to his neck and mid and
upper back. Required substantial doses of an opiate to control his pain. Guarded
prognosis for recovery – can only expect better strategies to cope with the
pain rather than reduction in the pain itself.

c.         Award: $80,000

5.    
Niloufari v. Coumont,
2008 BCSC 816 varied
2009 BCCA 517

a.         The plaintiff: Taxi driver

b.         Injuries and Effects: Moderate
strains to his neck and back. Chronic pain with both physical and psychological
components. As of the time of trial, the plaintiff was disabled from any
activities, including work. No permanent disability if he attended diligently
to his rehabilitation. Could be expected to gradually recover over three or
four years;

c.         Award: $70,000

Authorities submitted by the defendant:

1.    
Job v. Van Blankers, 2009 BCSC 230

a.         The plaintiff: 29 year old
photographer

b.         Injuries and Effects: “At best”
mild to low moderate soft tissue injury to neck, back and shoulders. Effects
were tingling to left arm, headaches, discomfort when sitting or standing for
any length of time, inability to lift objects at work or do domestic chores
without experiencing pain.

c.         Award: $25,000

2.    
Salvatierra v.
Vancouver (City), 2008
BCSC 537

a.         The plaintiff: 41 year old
university student.

b.         Injuries and Effects: Soft
tissue injuries to the upper left portion of body. Effects were continuing headaches,
and neck, arm and back pain on her left side. The injuries caused her anxiety
that required medication, affected her relationship with her family and reduced
her ability to engage in athletic activities that had been “her passion”.

c.         Award: $45,000

3.    
Nisbet v. Pare, 2007 BCSC 1173

a.         The plaintiff: 54 years old, not
employed outside the home at the time of the accident; working three part-time
jobs at trial;

b.         Injuries and Effects: Soft
tissue injuries to neck, left shoulder and arm. Severe disabling pain after the
accident. Three years later, several headaches per month, disturbed sleep. Left
arm pain 75 – 80% resolved. No limit on activities if use of right arm
emphasized.

c.         Award: $35,000

4.    
Kenny v. Leveson-Gower,
2005 BCSC 447

a.         The plaintiff: Age and
occupation not stated.

b.         Injuries and Effects: Mild to
moderate soft tissue injuries to neck and shoulder. The plaintiff made the kind
of “slow, steady progress” that one would expect and the symptoms were largely
resolved two years before trial.

c.         Award: $15,000

5.    
Hanna v. M.D. Realty
Canada Inc., [1996] B.C.J.
No.1100 (B.C.S.C.)

a.         The plaintiff: 47 year old
government employee

b.         Injuries and Effects: Brachial
plexus injury causing acute pain and partial disability. The plaintiff was depressed
and debilitated by the constant pain. Probable that she will “experience
diminishing but partially disabling pain and discomfort in her right arm for
the rest of her working life”.

c.         Award:
$40,000

[77]        
While I have noted any similarities to the present
case in the plaintiff’s authorities, I would say that in general they describe
injuries and effects that are more serious than the ones that have been
experienced by the plaintiff.

[78]        
With the exception of Kenny, which is
really concerned with the plaintiff’s failure to mitigate, I find the
authorities cited on behalf of the defendant to be more closely related to the
present circumstances and therefore more helpful. Salvatierra is the
most helpful, although the effect of the plaintiff’s physical limitations on
his overall enjoyment of life seems to be even more significant than it was in
that case.

[79]        
Taking into account all of the circumstances and
the authorities, I think that an award of $50,000 for non-pecuniary damages is
appropriate in this case. In arriving at this amount I am mindful of the fact
that the award in Hanna, when adjusted to current dollars, falls within
a similar range, even though it involved a brachial plexus injury. The effect
on the plaintiff in that case however, was quite similar to the plaintiff’s situation,
so I do not think that diagnosis in itself limits its applicability.

5.       Failure to Mitigate

[80]        
In Antoniali v. Massey, 2008 BCSC 1085 at
para. 31, Preston J. formulated a helpful set of criteria to determine when an
award of damages should be reduced “by application of the principle that a
plaintiff has a positive duty to mitigate his or her injuries”. Adapted for use
beyond the particular circumstances of that case, these criteria require a
defendant to establish:

1.         That
a rehabilitative program would have reduced or eliminated the effect of the
injuries;

2.         That
a reasonable plaintiff in the same circumstances would have followed such a
program;

3.         That the plaintiff unreasonably
failed to follow such a program; and

4.         The extent to
which the plaintiff’s damages would have been reduced if he or she had followed
such a program.

[81]        
I conclude that, for the period between the
accident and the plaintiff’s first meeting with Dr. Travlos, the evidence is
not sufficient to establish the existence of any rehabilitative program that a
reasonable plaintiff in his position would have followed.

[82]        
His failure to follow up with Dr. McIntosh after
the summer of 2006 is troubling in that regard, but Dr. McIntosh is unable to
confirm that he recommended physiotherapy during their appointment that year
and he conceded that he has no problem with patients pursuing massage or
chiropractic instead, as in fact the plaintiff did, if they are more
comfortable with them. His assessment of the plaintiff’s efforts during the
long gap between visits to him was that the plaintiff had been “doing what he
could” about his symptoms.

[83]        
However I am satisfied that after Dr. Travlos
saw him, the plaintiff became aware that there were significant steps that he
could take to improve the quality of his sleep and to increase his strength,
both of which would help alleviate his symptoms. I would also include in this
advice the overall recommendation that the plaintiff not restrict himself from
engaging in physical activity. These steps were discussed in a general way
during the assessment and then conveyed in detail in the opinion letter to his
counsel.

[84]        
I accept Dr. Travlos’s evidence that he would
have expected the plaintiff to improve by embarking on this program, although
he could not say by how much, and that he would have expected someone
encountering the plaintiff’s level of sleep difficulties would have returned to
his general practitioner for assistance.

[85]        
Dr. Travlos’s surprise at the plaintiff’s
failure to follow his recommendations when he assessed him again in 2009 speaks
volumes about the reasonableness of the recommended program and its potential
ability to have led to improvement. It is also meaningful that in 2009 Dr.
Travlos recommended that the plaintiff discontinue the passive therapies on
which he had come to rely since the accident, in favour of pursuing the same
program that Dr. Travlos had recommended two years earlier.

[86]        
I am satisfied that Dr. Travlos’s program would
have reduced the effects of the injuries, that a reasonable person in the
plaintiff’s position would have pursued them, and that it was unreasonable for
him not to have done so. He was certainly entitled to pursue passive therapies
if he preferred them, but he was not entitled to disregard detailed advice from
an expert in rehabilitative medicine that  could have helped him.

[87]        
Determining the extent to which following Dr.
Travlos’s advice would have helped the plaintiff is a less straightforward
process. Dr. Travlos explained that most patients improve, some recover and
some receive no benefit from such a program. Obviously he would not have given
such advice to the plaintiff if he did not expect that it would benefit him
more than negligibly and I infer that, from his medical perspective, the
expected benefits would also have had to outweigh any potential negative
effects of the medications to improve sleep, as well as the certainty of pain and
discomfort from increasing his physical activity and engaging in structured conditioning.

[88]        
In all of the circumstances I think that it is
reasonable to conclude that the plaintiff’s symptoms would have improved by at
least 10% if he had followed the advice and accordingly I will reduce his award
of non-pecuniary damages by that amount.

6.       Loss of Future Earning Capacity

[89]        
Loss of future earning capacity is most
frequently determined according to what is known as the “capital asset”
approach. Under this approach, the plaintiff’s capacity to earn is seen as an
asset belonging to him and the analysis proceeds by determining the extent to
which it has been rendered less valuable to him by the injuries that he has
suffered: Pallos v. Insurance Corporation of British Columbia (1995),
100 B.C.L.R. (2d) 260 (C.A.) at paras. 29-31.

[90]        
It was held in Parypa v. Wickware, 1999
BCCA 88 at para. 67 that:

[T]he trier of fact, in determining the
extent of future loss of earning capacity, must take into account all
substantial possibilities and give them weight according to how likely they
are to occur, in light of all the evidence.

[Emphasis added.]

[91]        
Similarly in Rosvold v. Dunlop, 2001 BCCA
1 it was observed, at para. 9:

Possibilities and probabilities, chances,
opportunities, and risks must all be considered, so long as they are a real
and substantial possibility and not mere speculation.

[Emphasis added.]

[92]        
In Steward v. Berezan, 2007 BCCA 150 at
paras. 17-18, Donald J.A. described the approach in this way:

17.       […]
The claimant bears the onus to prove at trial a substantial possibility of a
future event leading to an income loss, and the court must then award
compensation on an estimation of the chance that the event will occur: 
Parypa ¶65.

18.       When
the record is examined according to that approach, I cannot see the basis for a
substantial possibility giving rise to compensation for diminished earning
capacity. There being no other realistic alternative occupation that
would be impaired by the plaintiff’s accident injuries, the claim for future
loss must fail.

[Emphasis added.]

[93]        
Somewhat unusually for this type of case, the
plaintiff does not raise merely the possibility of future employment being lost
to him because of his injuries, but the actual loss of a specific job
opportunity. The critical issue is his contention that, had he not suffered
injuries in this accident, he would now be able to accept Mr. Grieve’s
long-standing offer of employment as a swamper in the pipeline industry after
his earning from his employment in the auto industry started to decline in
early 2009.

[94]        
He submits that his loss because of his
inability to accept the position will be approximately $200,000 over the course
of his working career.

[95]        
The defendant denies that the plaintiff has suffered
any loss in this area and submits both the alleged opportunity to work with Mr.
Grieve and any other physically demanding alternative career are illusory, in
light of his actual circumstances.

[96]        
It is fortunate that the plaintiff has been able
to continue as a manager in the car sales business without any interruption
from his injuries. What I must ask is whether there is any substantial
possibility that he would have taken up Mr. Grieve’s employment offer to
address his recently declining earnings in that business. If there is such a
possibility, I must consider how likely it would have been to occur in order to
arrive at the appropriate amount of compensation for what he has lost.

[97]        
The offer of work with Mr. Grieve has been
available to the plaintiff since the time that he worked as a nurses’s aide
with Mrs. Grieve, a period approaching fifteen years.

[98]        
Mr. Grieve’s evidence was that the plaintiff
said, when declining the offer, that he could make a similar amount of money in
car sales, but it is significant that the offer was also available during
periods in which he was making considerably less in car sales than he has made
in recent years. For example he only earned around $43,000 from auto sales in 2003
and I infer that his earnings as a nurse’s aide would not have been any higher,
or he would not have pursued car sales in the first place.

[99]        
What this means is that the plaintiff did not
pursue the swamper position during earlier times when it would have been
financially beneficial for him. This tells against the possibility that he
would have pursued it in the current situation.

[100]     I also found Mr. Grieve’s evidence that he has offered the plaintiff
the job more recently “as more of a favour to him to get him away from the low
income” even though he was aware that the plaintiff could not handle the
physical demands, quite troubling. It makes no sense to offer the plaintiff a
job he is unable to do, regardless of the increased income involved. This
leaves me with a real concern that this was not a current and realistic job
offer, but only a long-standing discussion topic between these friends, which the
plaintiff has resurrected in order to give greater substance to this aspect of
his claim.

[101]     Finally, there is the question of whether the circumstances that are
said to have motivated the plaintiff to want the swamper job are realistic. I
certainly accept his evidence, as well as that of Mr. Holm, his former
employer, that there has been a decline in auto sales in Canada as part of an
overall economic downturn. It was not suggested however that auto sales are in
themselves in any kind of permanent decline or that the plaintiff cannot expect
eventually to return to his previous level of income in that business.

[102]     What we have at this point is information about his decline in
earnings in the first five months of 2009. I do not find it realistic that the plaintiff
would abandon an occupation at which he has had so much success in the absence
of some reliable indication that this decline could be expected to continue for
a significant period.

[103]     I also do not think that there is any realistic possibility, nor was
there any evidence to suggest, that the plaintiff would forsake his stable
employment in order to pursue the swamper position as a stopgap measure for the
duration of the sales downturn.

[104]     For these reasons I do not find that there is any substantial
possibility that employment as a swamper with Mr. Grieve has been lost to the
plaintiff as a result of his injuries.

[105]     The plaintiff’s submissions in this area have focused principally on
the loss of the opportunity to a take swamper position. However, I do not see
any substantial possibility that the value of the plaintiff’s earning capacity
as a capital asset has been diminished in any other respect.

[106]     It appears that he has found the most suitable and, in normal
economic circumstances, the best-paying use of his talents in his present
position. He has not held physically demanding jobs since he was a nurse’s aide
and filled in for his father-in-law and his move to auto sales was clearly a
career progression for him, rather than simply an alternative choice from among
equally attractive positions.

[107]     I also do not think that his extensive activities as a home
handyman, the impairment of which I have already addressed under non-pecuniary
damages, is the equivalent of an employment history for demanding physical
jobs.

[108]     I am mindful of the plaintiff’s relative youth and the significant
number of working years that still remain, but the substantial career
possibilities in his future would appear to be in similar sales and managerial
roles, which are not limited in any way by his injuries.

[109]     Therefore, I am unable to award any damages for loss of future
earning capacity.

7.       Special Damages

[110]     The test for special damages is whether they are reasonable: Chiu
(Guardian ad Litem of) v. Chiu, [1999] B.C.J. No. 2082 (B.C.S.C.) at para. 59,
varied 2002 BCCA 618.

[111]     The amounts claimed by the plaintiff as special damages relate to
the costs of the following:

1.       His MRI
following Dr. McIntosh’s recommendation in 2006;

2.       His massage,
chiropractic and acupuncture treatments;

3.       His mileage
expenses for travelling to and from those treatments;

4.       The
labour costs of building a fence at his residence;

5.       The
entire labour costs of completing work on his recreational property.

[112]     His total claim is $12,287.00.

[113]     The defendant argues that only the costs of the passive therapies in
the first year following the accident are reasonable and that after that the
plaintiff should have followed the medical recommendations for his
rehabilitation rather than continuing with these therapies.

[114]     The evidence does not suggest that the plaintiff’s reliance on these
therapies for pain relief was unreasonable – only that he should have followed
the medical recommendations regardless of whatever other therapies he wished to
pursue. Accordingly I will award the special costs for them as claimed, along
with the mileage costs incidental to the treatment visits.

[115]     With respect to the labour costs, the defendant says that these
represent elective decisions made by the plaintiff to put up the fence at his
residence and to carry on further work at his recreational property, and that
there has not been any evidence showing their necessity.

[116]     Given the test of reasonableness, I think these labour costs should also
be compensable.

[117]     Fencing a yard is the kind of home building task that arises in the normal
course of maintaining a home and is therefore fairly characterized as being
necessary. I also agree that a claim of one half of the total cost of the
fencing job is a reasonable estimate of the labour component, in the absence of
an invoice that lists the cost of labour separately.

[118]     While a lesser degree of necessity probably attaches to building on recreational
property in general, I think that in the plaintiff’s case it was necessary for
him to pay to have his already-substantial work on it completed, when the
alternative was to abandon it in mid-stream once his injuries restricted his
capacity.

8.       Loss of Housekeeping Capacity

[119]    
The test for compensation for loss of
housekeeping and home maintenance capacity was succinctly expressed in Menhinick v. Lobesz, 2008 BCSC 1285 at para. 55:

The plaintiff
must establish a real and substantial possibility that she will continue in the
future to be unable to perform all of her usual and necessary household work,
and that the work she will not be able to do will require her to pay someone
else to do it, or will require others to do it for her gratuitously.

[120]     The defendant argues that the plaintiff has not provided any
evidence on which I can base even an approximate calculation of the costs
involved in this area of loss, and that therefore this claim should be denied.

[121]     While I agree that there are these deficiencies in the evidence, I think
that the general evidence of the plaintiff’s proficiency as a home handyman
establishes that there are some home maintenance tasks that he was previously
capable of that will now have to be outsourced.

[122]     Where losses in this area cannot be easily quantified or the
evidence is lacking it may be preferable to include them in the award of
non-pecuniary damages (see for example Papineau v. Dorman, 2008 BCSC
1443 at para. 295) and that is my intention in this case.

9.       Cost of Future Care

[123]     In order for a plaintiff to be compensated for the cost of future
care there must be a medical justification for his costs and they must be
reasonable: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at 84.

[124]     In this case the plaintiff seeks an amount of $2,000 for:

1.       Advil and prescription pain medications;

2.       Physiotherapy;

3.       A personal trainer;

4.       A gym pass;

5.       Sleep medications;

6.       Antidepressant medications; and

7.       Massage
therapy “in the event of pain flare ups”.

[125]     The defendant suggests that I should be sceptical about the
likelihood of the plaintiff following through with any conditioning program at
this point, in view of his past response to such recommendations and argues
that only $1,000 should be awarded.

[126]     Applying the criteria from Milina, it is first of all clear
that all of the claimed expenses have been medically justified, either by Dr.
McIntosh or Dr. Travlos. They are also reasonable, in that they represent quite
a moderate implementation of these practitioners’ recommendations. Accordingly,
I will allow them.

10.     Conclusion

[127]     The awards of damages will be:

1.       Non-pecuniary
damages: $50,000;

2.       In addition to non-pecuniary damages for loss of
housekeeping and home maintenance capacity: $5,000;

3.       Deduction from non-pecuniary damages for failure to
mitigate losses: 10%, or $5,500;

4.       Special
damages: $12,287; and

5.       Cost of
future care: $2,000

Total: $63,787

Costs

[128]    
The parties may speak to costs or address them
by written submissions, whichever is the most convenient for them.

“The
Honourable Mr. Justice Schultes”