IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100201

Docket:
M055296

Registry: Vancouver

Between:

Miroslav Michal

Plaintiff

And:

Edward Peter Begg

Defendant

Before: The Honourable Mr. Justice Curtis

Reasons for Judgment

[1]            
Miroslav Michal claims damages for personal
injuries suffered in a motor vehicle collision which occurred December 18,
2003.  Mr. Michal was riding as a passenger in a Ford pick-up truck driven by
Edward Begg which slid on a patch of ice on the Coquihalla Highway and was
destroyed when it hit a concrete highway divider.  Liability for the collision
has been admitted by the defendant and the issue in this case is the assessment
of the amount of damages which is appropriate compensation for Mr. Michal’s
claims for general damages, past wage loss, loss of earning capacity and cost
of future care.  Special damages are agreed to be $3,500.

[2]            
Miroslav Michal was born August 30, 1956 and at
the time of the accident was 47 years old.  He was living in Abbotsford with his
wife, a daughter and his eldest son.  He had purchased property in Peachland in
March 2003 and moved there in April 2006.

[3]            
Mr. Michal’s family moved from Czechoslovakia to
Canada in 1968 and to Burnaby in 1969 when he was 13.  He attended Burnaby
Central High School which he left after completing the first term of grade 12. 
Up to the date of his injury in the 2003 accident, Mr. Michal had always been
very athletic.  In high school, he participated in football, wrestling,
hammer-throw and javelin. Simon Fraser University offered him a scholarship in wrestling. 
In 1974, he joined the Kung Fu School on Kingsway, earned his first degree
black belt in two years and his second in four years.  He participated in the
Fraser Valley Boxing Club from 1976 to 1981 becoming a kick boxer and travelled
to tournaments in British Columbia, Washington and Oregon.  In 1980, he won the
heavyweight kick boxing title in Las Vegas, after which he was training to
fight for the world title, however, four days before the fight was scheduled he
broke his nose.  The B.C. Amateur Boxing Association put him forward to box for
Canada in the 1980 Olympics, which was boycotted, following which he did some
professional boxing.  Mr. Michal continued his interest in the martial arts
right up to the date of his accident – training and going to gyms two or more
times per week.  In 2000, he took up Aikido and had progressed to being one of
the more proficient students in his class in that art by December 2003.

[4]            
While Mr. Michal’s health was good at the time
of his December 2003 injuries, he had, in addition to having his nose broken
twice, suffered various martial arts injuries and been in motor vehicle
accidents in 1974, 1975, 1979, 1986, 1991, January 1994 and January 10, 2000. 
In 1997, he had low back pain and on July 14, 2003 a martial arts injury to his
right shoulder associated with mild neck soreness.  After the January 10, 2000
collision, Mr. Michal saw a chiropractor about 24 times, in 2001, 12 to 15
times, 2002, six times, and in 2003, six times prior to December.  There is no
evidence of him having complaints concerning either of his knees or his feet or
ankles prior to December 2003.  At the time of the December 2003 collision, he
was 6’1” tall and a heavily muscled man weighting 242 pounds in good condition
with some aches and pains on occasion in his neck, shoulders and back.

[5]            
Immediately after the collision, Mr. Michal had
to forcefully kick open the door of the truck to get out.  He and Mr. Begg, as
he described it, were euphoric at having survived such a smash up.  Because the
truck was blocking a part of the lane they walked down about 100 yards from it
to warn oncoming traffic.  When the police arrived at the scene, Mr. Michal
advised them he did not need an ambulance.  He got a ride with the tow truck
driver to Hope from where he caught a taxi to his home in Abbotsford.

[6]            
Mr. Michal saw Dr. Apps, his long time family
doctor, on December 19, 2003 the day after the accident.  He told Dr. Apps he
felt initial pain in both wrists, the anterior chest, the right knee, right
ankle and right heel; left anterior chest pain over the ribs and right lower
lateral rib pain; left buttock pain and he felt quite shaken up.  He also
reported that shortly after the collision he felt pain in the left index and
middle finger, swelling of the right elbow, pain in the right lateral ulnar
wrist with pain shooting up his right arm, headache, left wrist pain on the
ulnar aspect, right lower neck and right trapezius pain and left lateral neck
pain in the upper aspect of the neck.

[7]            
Dr. Apps in his opinion of January 5, 2007
reports his initial examination and diagnoses as follows:

6.       Physical examination on December 19th, 2003
revealed a full range of motion of his neck with right trapezius muscle
tenderness and end point pain. There was tenderness to the right posterior
shoulder. There was tenderness of the right lateral occiput at the base of the
skull. In his right hand there was tenderness of the right ulnar carpal aspect
of the wrist with no scaphoid tenderness. There was no tenderness over the
right distal ulnar radius. In the right elbow there was pain on rotating the
forearm. In the left hand there was decreased grip strength. There was no
deformity of the PIP joint of the index or middle fingers. There was tenderness
of the left ulnar carpal joint. There was left costal margin pain and pain on
anterior/posterior compression of the ribs. There was right posterior lateral
rib tenderness. Examination of the right knee revealed the ligaments to be
intact. The right ankle ligaments were intact and no abnormalities were found
in the left foot or ankle.

7.       My initial diagnoses were as follows:

1.       Whiplash, Grade II (aggravating a
pre-existing mild recurrent neck pain).

2.       Muscle contraction/tension type headaches.

3.       Contusion of the right lateral occiput with
closed head injury.

4.       Right shoulder strain posteriorly (different
than the July 2003 right shoulder injury which involved the right AC joint).

5.       Right and left ulnar carpal strain — query
ligament tear.

6.       Swelling and contusion of the left PIP joints
of the index and middle fingers.

7.       Right elbow strain.

8.       Left costal margin contusion, query rib
fractures.

9.       Right lower rib contusion.

10.     Right knee strain.

11.     Bilateral ankle strain.

12.     Right ankle contusion.

13.     Left
buttock contusion.

[8]            
Dr. Apps recommended neck and thoracic
exercises.  On March 25, 2004, Dr. Apps diagnosed plantar fasciitis and ordered
an x-ray of the right ankle which was reported as normal.

[9]            
Mr. Michal also saw Dr. Apps July 8, 2005 with
respect to which Dr. Apps writes:

13.     Mr. Michal was next seen July 8th, 2005
regarding the motor vehicle accident. At this time he was still having trouble
walking and at this time his main problem was with his right foot plantar fasciitis.
He told me that to get the door open after the December 18th, 2003 motor
vehicle accident he had to kick the door open and wondered whether this had
caused the problem with his right foot. He was also having right ankle and
right knee pain and reiterated that there was no right ankle nor right knee
pain before the accident. He was still having neck pain on and off.  He told me
that he can have intervals with no pain for a week and when he did have
discomfort he went to the chiropractor. Associated with the neck pain were
occasional headaches.

14.     He
told me that he was having physiotherapy and that treatment included the right
lower ribs and right hip area. When his neck is sore he gets right shoulder
pain which is different from his prior anterior shoulder injury of July 14th,
2003 which had fully resolved. He was using occasional Robaxacet as a muscle
relaxant/pain reliever, Aspirin, Advil and Tylenol. He was having trouble
working greater than two hours per day. He told me that he had a dump truck and
a Bobcat loader. He told me that he had tried doing some carpentry framing on
July 7th, 2005 for six hours and subsequent to that had severe right foot pain.
He was following instructions from Dr. Sunny Lai (Podiatrist), including the
use of orthotics for his right foot.

[10]        
Mr. Michal saw Dr. Apps September 15, 2005
reporting right neck discomfort, headache, low back discomfort and pain in the
inner aspect of his right knee.  Dr. Apps sent him for x-rays and referred
him to Dr. Hill, an orthopaedic surgeon.

[11]        
The September 14, 2005 x-rays revealed early
degeneration spondylyosis from C4-C7 in his neck, minimal changes to his lumbar
spine and mild degenerative changes in all three compartments of both knees,
all of which predated the accident of December 2003.

[12]        
Dr. Hill’s diagnosis was:

“Residual soft
tissue injuries lumbar and cervical spine with no evidence of radiculopathy in
the upper or lower extremities.

Medial compartment arthritis both knees worse on the
right.

Partial tear medial meniscus.

Residual scarring over the lateral side of his right
ankle.

Pars
Planus.”

[13]        
Dr. Hill recommended an MRI of both knees. 
Following the MRI investigation, Dr. Hill referred Mr. Michal to Dr. Kokan who
did arthroscopic surgery on the right knee on January 4, 2007 and on the left
April 11, 2007, in each case to repair medial meniscus tears by removing
damaged tissue.

[14]        
Initially, Mr. Michal responded well to his knee
surgery and returned to work doing two to three days per week with framing and
running his dump truck, however with the arrival of fall weather, his knees got
achy and Mr. Michal says they have both continued to get worse since.

[15]        
In November 2007, Dr. Anton, who specializes in
Physical Medicine and Rehabilitation conducted an assessment of Mr. Michal at
the request of Mr. Michal’s lawyer.  In his report of April 18, 2008, Dr. Anton
states at page six:

As requested, I will assume
that Mr. Michal suffered an injury to the left knee in the accident on December
18, 2003. Based on that assumption, it is probable Mr. Michal’s left knee
symptoms after the accident were due to that injury. It is also probable that
the demonstrated medial meniscal tear was due to that injury.

Mr. Michal clearly developed
right knee symptoms after the accident. The medial meniscus tear found on
arthroscopy was more likely degenerative than traumatic. However, I think it
probable the trauma he suffered to the right knee contributed to that tear and
other pre-existing degenerative changes in the knee becoming symptomatic after
the accident.

Mr. Michal reported
improvement in his knee pain after both knee surgeries, but his knee pain
subsequently grew worse.  His current knee pain is probably due to the
degenerative changes in his knees.  Those clearly predated the accident, but he
had no reported or documented knee symptoms before the accident.  It is
therefore probable the injuries he suffered in the accident contributed to the
pre-existing degenerative changes becoming symptomatic.

The pre-existing degenerative
changes would probably have become symptomatic absent the accident but that
could have taken five years or longer.

Mr. Michal had a history of
back and neck pain predating the accident. I think it probable injuries
suffered in the accident contributed to a prolonged exacerbation of his pre-existing
neck and back pain.

Mr. Michal developed heel and
foot pain after the accident. His symptoms are best explained by plantar
fasciitis (inflammation of the plantar fascia at the base of the foot where it
attaches to the heel). I think it probable the injury to the heel was the main
cause of the subsequent plantar fasciitis.

I
also think it probable that Mr. Michal suffered a ligamentous sprain of the
right ankle and some of his residual symptoms are due to that. If he has not
had x-rays of the right ankle, it would be reasonable to obtain those to see if
there is any evidence of early arthritis in the ankle.

[16]        
A Functional Capacity Evaluation and Cost of
Future Care Report was prepared for Mr. Michal’s lawyer by Russell McNeil, an
occupational therapist, upon testing done July 15, 2008.  In addition, Louise
Craig, a physiotherapist, did a further functional capacity assessment on Mr.
Michal March 7, 2008 which was used by Dr. Walter Hartzell, an occupational
health physician, in preparing his report of April 21, 2008.

[17]        
Dr. Anton in his April 18, 2008 report wrote as
follows:

Mr. Michal’s injuries were
severe enough to restrict his participation in physically demanding activities
that were normal for him before the accident for at least one year. He would
have had further restriction arising from his knee problems for a longer period
that has persisted to the present time.

Mr. Michal is at present not
able to participate in physically demanding work generally.  More specifically,
he would not tolerate work that involved repetitive weight bearing, kneeling, squatting,
bending, or repetitive or heavy lifting.

Mr. Michal continues to have
restrictions in household tasks and recreational activities, including running
and martial arts.

Mr.
Michal can still improve with time and further treatment. However, the duration
of his pain, the fact he had pre-existing pain, and the presence of degenerative
arthritis in both knees means he will not become pain free. He is also unlikely
to return to his all his pre-accident activities.

[18]        
Dr. Hartzell, in his report wrote, in part:

It is my opinion he is capable of strength in the
range of heavy physical demand.  He is limited for carrying out strength
activities by pain in his left and right knee, his right ankle and right heel.

[19]        
Continuing at page 18 of his report, Dr.
Hartzell writes:

37.     It is my opinion that his right heel pain,
which is a consequence of a heel spur or plantar fasciitis, is curable. It is
my opinion that he needs further medical/podiatry assessment and treatment, and
he should be able to get essentially full resolution of that problem.

38.     It  is my opinion that it is unlikely that
there is anything further medically/surgically that can be done for his knee
problems until such time as he is ready for artificial knees, which is a future
probability. He complains of instability of his left knee and would benefit
from being assessed for a brace on his left knee.

Physical Rehabilitation

39.     He reports that he has not had physical
rehabilitation since he had his knee surgery. He has relatively weak
quadriceps. It is my opinion that his knee problems may benefit from
strengthening of his quadriceps muscles. It is my opinion that he needs to be
put in a rehabilitation program that would include strengthening his quadriceps
muscles.

Opinion Regarding Future Employability

40.     It is my opinion that he has significant
permanent functional impairment primarily related to left and right knee
function. It is my opinion that this will limit his employability for the rest
of his employable career. It is my opinion that he is at significant risk of
further injury in the environment in which he works. It is my opinion that the
condition in his knees is degenerative and it will get worse.

41.     It is my opinion that with rehabilitation of
his quadriceps muscles and perhaps provision of a left knee brace, and
resolution of his right heel pain, his employability as a heavy duty equipment
operator might be improved.

42.     Mr.
Michal is 51 years of age and at this point trying to get him back into the
kind of work that he was doing prior to this motor vehicle accident will be
difficult. It is my experience that workers who are older than 50 and have
injuries that significantly disable them have great difficulty recovering back
to the level of physical functioning which they were at before the disability
began. They are at a point in their employability where they are on a
relatively steeply sloping curve in terms of functional capacity. When
significant injuries are added to that, they frequently never fully recover to
a pre-injury level of function, in all areas of their life – personal,
vocational and recreational.

[20]        
The defence has obtained opinions from Dr.
Sovio, an orthopaedic surgeon dated March 6, 2006, October 10, 2007, July 16,
2008, August 25, 2009 and October 5, 2009.

[21]        
Dr. Sovio writes in his report of March 6, 2006:

This gentleman was involved in
a motor vehicle accident December 18, 2003. It would appear that the patient
suffered some soft tissue injury. He complains of some discomfort in his neck.
He has a long history of difficulties with his neck having had numerous
injuries in the  past. X-rays have revealed some early degenerative change but
nothing of any major significance.

The patient’s range of motion
was satisfactory. He had some discomfort at extremes of motion but I do not
feel that this is going to be of any major long term concern and should not
limit the patient in any way over the longer term.

The patient complains of
difficulties with his low back and again he has had numerous previous injuries.
X-rays revealed only minor difficulties present and no evidence of root signs
or significant loss of range of motion.

I do not feel that this will
cause any long term difficulties anymore so than the patient had prior. He
should be able to carry on with his activities in a relatively normal fashion
in a pre-accident capacity as far as the back is concerned.

The patient’s complaints which
relate to his knees are related to degenerative change in his knee along with
likely degenerative meniscal pathology.

I do agree with Dr. Hill that
in all likelihood the patent should have  arthroscopic evaluation and possible
arthroscopic debridement of the medial meniscal tears. He does have arthritic
change and he has some alignment which would predispose him to arthritic
change. This is not related to the motor vehicle accident but rather a
pre-existent problem.

The patient stated that he did
not have any problems with his knees prior and it may well be that he has
developed the medial joint discomfort as a result of the twisting that he had
to his knees. He, in all likelihood, had pre-existent degeneration which
predisposed him to this problem and regardless he would have had some
difficulties with his knees in the future.  It is difficult to say when this
would have shown up but it likely would have presented in the relative near
future. In any case, his situation should be addressed by arthroscopic means.

The
patient also has plantar fasciitis which is likely related to a contusion to
the heel. This has been ongoing for the 2 years now. Generally speaking
cushioning and arch supports usually allow for this problem to settle down
along with anti-inflammatory agents. If that does not work then a cortisone
injection should be trialed and a large percentage well into the 90% range of
this problem does clear up and requires no further attention. The fact here is
that the patient has some hyperpronation and thus should have orthotics to
correct that.

[22]        
In his report of July 16, 2008, Dr. Sovio
writes:

Further to your letter of July
4, 2008 I have reviewed the medical legal report of Dr. Hugh Anton which is dated
April 18, 2008. Dr. Anton, in his report lists the injuries that the patient
suffered and these are quite extensive in terms of the list itself and appears
to include even minor complaints.

In any case, Dr. Anton feels
that the patient’s left knee injury was due to the car accident and he likely
had a meniscal tear as a result of this accident. The patient underwent an
arthroscopic evaluation and-excision of meniscus but he was found also to have
degenerative change.

I would agree with Dr. Anton
that this, in fact, is likely the situation but the  degenerative change that
the patient had in the knee was not the result of the motor vehicle accident
and had the patient not had any degenerative change he would have done well
with excision of the meniscus and would not have had long term difficulties and
should have been cured from the standpoint of the knee injury.

His right knee symptoms
developed after the accident and he was found to have a degenerative tear of
the meniscus and I think this was more likely than not related to the degenerative
change and I would agree again with Dr. Anton on his assessment of that. He
also states that the patient’s knee symptoms would have arisen in spite of
having the accident and the time frame of that is difficult to say although he
seems to state that it could have taken 5 years or longer although this guess
cannot be supported on clinical grounds.

The patient was noted to have
plantar fasciitis as well. Dr. Anton felt that this was likely due to an injury
to the heel and subsequent discomfort and I would agree that this may have
certainly caused this to start along with the fact that the patient has
significant hyperpronation or pes planus which would predispose him to this
type of problem. Plantar fasciitis is generally speaking successfully with
orthotics, stretching, anti-inflammatory agents and sometimes cortisone shots
and in the majority of cases, well over 90% this problem does respond to the
conservative management. It certainly is unusual for it to last as long as the
patient claims that it has. It is my understanding, though, that the current
complaints are relatively mild.

The pains that the patient
complains of in the right ankle and the right wrist are difficult to explain on
the basis of soft tissue injury. One would have expected these to have long
since cleared if they were soft tissue in origin. Investigations have
essentially been negative. 

Dr.
Anton feels that the patient will not become pain free considering the fact
that he has degenerative arthritis in his knees and he also states that the
patient is unlikely to return to all his pre-accident activities.  This,
however, I believe is on the basis of arthritis of his knees and this was not
accident related.

[23]        
Drs. Apps, Anton, Hartzell and Hill all
testified at the trial, as did Russell McNeil and Louise Craig.

[24]        
Acting on Dr. Apps’ advice, Mr. Michal did not
go back to martial arts training until April 2004.  At that time, he tried
everything but eventually he had to sit out, his knees in particular were
painful.  He could not keep up the way he used to.  He took July and August 2004
off and tried again in September but by November 2004 he decided he could not
do it anymore and reluctantly gave up on his martial arts training he had
pursued so avidly since he was 17.

[25]        
Excluding the effect his injuries have had on
his employment, Mr. Michal has also testified that he has been limited by his
foot and knee pain in walking, doing yard work and projects around his home. 
His right knee has been the most troublesome injury.  As he put it in his
words, “As far as I am concerned the right knee was the big injury – the rest
felt like some kick boxing.”  He continues to work out in his own home with
equipment he has, regularly each week.  He cannot be on his knees for more than
30 seconds.  Mr. Michal sums up his situation when he says, “I can do pretty
well everything, I just can’t do it on a daily basis.”

GENERAL DAMAGES

[26]        
In summary, I find it proven on the balance of
probabilities that as a result of the December 18, 2003 collision, Miroslav
Michal suffered a whiplash injury aggravating a pre-existent mild recurrent
neck pain, which is now continuing on about the same course as it would have
had the 2003 accident not occurred, injuries to his head, right shoulder, right
and left wrists, fingers and elbow strains, rib injury and a buttock contusion,
all of which has resolved fairly quickly, and injuries which have produced
symptoms persisting to the present time, namely to his right ankle, right foot
and left and right knees.

[27]        
The right knee was clearly injured in the
collision as is demonstrated by the immediate appearance of pain, swelling and
stiffness.  That knee had pre-existing degenerative changes which were not
symptomatic prior to the collision, but were clearly made symptomatic following
it.

[28]        
There is no immediate medical record of Mr.
Michal complaining about left knee problems.  That knee also had pre-existing
degenerative changes which were not symptomatic prior to the accident.  I am
satisfied, however, that the collision did aggravate the condition of the left
knee and caused it to become symptomatic afterwards.  Mr. Michal has testified
that was the case and his testimony is supported by the observations of Mr.
Begg and his Aikido instructor.  Mr. Michal is clearly not a complainer and I
accept that early left knee symptoms were simply overlooked in dealing with
more urgent matters.

[29]        
Both knees were showing pre-existing signs of
degeneration in all three compartments.  The outlook for his knees was that the
degeneration could continue and would have at some point become symptomatic even
if there had not been any December 18 injuries.  It is likely his knees would
have got bad enough to affect his function even if he had not been injured. 
How long that would have taken is not clear – Dr. Anton offers the opinion that
“The pre-existing changes would probably have become symptomatic absent the
accident but that could have taken five years or longer.”  Dr. Sovio in his
report of March 6, 2006 was of the opinion that:

He, in all likelihood, had pre-existent degeneration
which predisposed him to this problem and regardless he would have had some
difficulties with his knees in the future. It is difficult to say when this
would have shown up but it would likely have presented itself in the relative
near future.

[30]        
On the evidence, I find it reasonable to
attribute Mr. Michal’s knee symptoms to the date of his surgery in January and
April of 2007 to the collision, but I find that, while the collision injuries remained
a contributing factor, his failure to recover as expected from his knee surgery
and his worsening condition from September 2007 onward was attributable to the
fact that he had degenerative knees as well as the fact that they had been made
worse by the collision induced injuries.  It is probable that Mr. Michal would
have ended up having arthroscopic surgery to his knees even without his 2003
injuries but that surgery was probably significantly sooner because of the
December 2003 injuries.

[31]        
The plantar fasciitis in his right foot has
become chronic but the medical opinion is that it should be cured.  His right
ankle does not show evidence of significant injury.  I accept that these have
troubled him as he has described to the date of his trial, but I find that they
remain treatable and should not pose a significant problem for him in the future.

[32]        
Considering the pain and suffering Mr. Michal
has had from his injuries, and the significant loss of enjoyment of life they
have caused him, in particular forcing him to forego his long time interest in
martial arts, I assess Mr. Michal’s claim for general damages at $75,000.

PAST WAGE LOSS

[33]        
After he left school part way through grade 12,
Mr. Michal began working for a framing contractor.  In 1978, he became a
foreman in a framing crew building apartments.  He then moved to another
company where he got a lot of experience building underground slabs and
foundations running an 8-10 man crew, after which he went back to framing for
two to three years.  From 1981-1992, he operated his own construction company,
Jason Construction, framing and building houses and doing renovations and when
work was short, building garages and doing jobs like drywall, insulation,
roofing and plumbing.  Mr. Michal has no formal qualifications for construction
work but lots of experience.  Jason Construction stopped doing business in 1992
when he could not make enough money to support his family from it.

[34]        
Beginning in 1980, Mr. Michal became involved in
promoting stocks on the Vancouver and Nasdaq stock exchanges, mostly involving
mining stocks.  He said he was involved in four or five deals and testified at
one point expected to earn $4,000,000 to $10,000,000, but was cheated which
cost him his first marriage, which ended in divorce in 2001 and his interest in
a business called Cash for Cars.

[35]        
The Cash for Cars business started in 1992 and
was an automobile pawn business.  A warehouse property in Burnaby was purchased
for that business in 1996.  Mr. Michal testified he made $40,000 to $50,000 per
year in the business which lasted until about 1999.

[36]        
Mr. Michal said there was not much construction
business in 1999 or 2000.

[37]        
According to the information on his personal tax
returns, Mr. Michal’s income was as follows:

[38]        
The rental income reflects a rental on a
condominium Mr. Michal owns.  The warehouse purchased for the Cash for Cars
business was taken over by Mr. Michal’s friend Philip Oldridge from whom it was
purchased back by the purchase of shares in the company that held it, K & P
Investments Inc.  The property is rented.  Since Mr. Michal became owner of 100
percent of the shares in K & P Investments Inc., that company has reported
income as follows:

[39]        
Mr. Michal testified that he decided in 2001 he
wanted to set up a one-man construction business.  In order to do so, he
purchased from his lawyer a dormant company then named Canada Flowers Inc.,
which he renamed MIKA Investments Inc.  The tax returns of that company reveal
the following:

[40]        
Pursuant to his plan to run a one-man business,
Mr. Michal purchased some equipment which he put into MIKA Investments Inc.  On
March 17, 2004, he purchased a Bobcat for $30,342.50, October 6, 2004, a dump
truck for $43,500 and April 28, 2006, he purchased a better Bobcat for
$42,120.   Additionally, in 2005, he bought back the warehouse property in
Burnaby.

[41]        
In September 2003, Mr. Michal obtained a
building permit for $34,500 of work to build a garage and workshop on his
property.  In 2005 and 2006, he and a friend worked on an addition to his
Peachland property.

[42]        
Mr. Michal’s claim for past wage loss is presented
on the basis that, but for the collision injuries, he would have gone into
business as a one-man contractor with his Bobcat and dump truck and earned $65/hour
for a 40-hour week doing excavations, foundations, water lines and various
construction work.  Mr. Kelly Sinclair and Mr. Danny Virtue both gave evidence
of substantial work available for Mr. Michal that he did not take.  Mr. Michal,
however, gave no evidence concerning either of these opportunities. I have no
doubt substantial amounts of construction work was available, the issue in this
case is why Mr. Michal did not do more of it than the minimal amounts he did.

[43]        
I accept the evidence that while Miroslav Michal
can do most anything he has problems sustaining that activity for many hours,
or day after day, because of the condition of his knees.  As demonstrated by
the video, however, he has a strong upper body and he is capable of doing heavy
work such as is seen with his 25 pound chain saw for hours at a time.

[44]        
Mr. Michal owns two residential properties – one
in Peachland and one in Brookmere.  He also owns there three investment
properties, a condo rented to his son, a lot he bought for $25,000 in Quesnel
and the K & P Investments warehouse that is rented.  I am not aware of what
other assets he might own.

[45]        
A review of Mr. Michal’s earnings from 1999 –
2002, the five years prior to his 2003 injury, shows the following income from
business 1998: -$7,000; 1999: -$12,318; 2000: $4,012; 2001: $1,108; 2002: $0;
for a five year average amounting to a loss.  At the same time, Mr. Michal was
disposing of shares which yielded him cash.  Mr. Michal testified that his
mother died in 2002 and that a lot of time was spent helping his stepfather who
was living in Watch Lake, but this does not explain what appears to have been
remarkably little work being done in construction.  The obvious conclusion is
that Mr. Michal chose not to spend a lot of his time working at his
construction business.  In the face of that, it is unreasonable to proceed on
the basis that after December 2003 he would suddenly have been working 40-hour
weeks at $65 per hour.

[46]        
I am satisfied Mr. Michal has lost some income
from his functional disability arising from his December 2003 injuries, but on
the evidence, the assessment of that loss must be on a much more modest scale
than proposed.  Allowance must be made for the fact that in the construction
business profit available for distribution to the owner is calculated by
deducting fixed and operating costs.  If work is not done, fixed costs remain
but operating costs are not incurred.  Mr. Michal carries on his construction
business through MIKA Investments Inc., his wholly owned company.  I assess
that as a result of his accident injuries, excluding what would have been
caused by knee problems that would have occurred without the accident, Mr.
Michal has suffered a loss of personal income to date of $75,000.  Allowing 20
percent for income tax, I award him the sum of $60,000 for past loss of income.

REDUCED EARNING CAPACITY

[47]        
Miroslav Michael also makes a claim for reduced
earning capacity.  I accept that his capacity to earn income in the future is
reduced by the collision because of the condition of his knees and to a lesser
extent his foot and ankle.  I am satisfied, however, that even if he had not
been injured, he would have had increasing difficulty with his knees over the
years that would have impaired his ability to do physical work.  In the
circumstances, in my assessment, I find $50,000 is reasonable compensation for
the extent to which Mr. Michal’s capacity to earn income has been impaired
by his injuries for which the defendant is responsible.

[48]        
I make no award for the cost of hiring someone
to do Mr. Michal’s yard or house maintenance work.  He agrees he is capable of
anything, provided it does not have to be sustained for long periods.  If he is
capable of chain sawing for three or four hours, he is certainly capable of
mowing his lawn and doing ordinary home maintenance tasks.

[49]        
With respect to future care costs, I accept Mr.
Michal will have to continue to take medication for his accident related
condition.  I also accept the medical evidence that Mr. Michal would benefit
from some professionally guided exercise to strengthen his quadricep muscles. 
I recognize Mr. Michal has been a well trained athlete and feels he knows more
than personal trainers, and is not particularly disposed to professional
training instruction, but he may be less familiar with training for injury
remediation.  In addition, he will need to purchase orthotics from time to
time.  I award him $5,000 in future care costs for medication, exercise
training and purchase of orthotics.

[50]        
In summary, I find Mr. Michal is entitled to
recover damages assessed as follows:

1.       Non-pecuniary damages                        $75,000

2.       Past Wage Loss                                    $60,000

3.       Reduced Earning Capacity                     $50,000

4.       Future Care Costs                                 $
5,000

5.       Special
Damages                                  $ 3,500

[51]        
The parties may address the issue of costs if
that is necessary.

“V.R.
Curtis J.”