IN THE SUPREME COURT OF
BRITISH COLUMBIA

Date: 20100419

Docket:
M053113

Registry: Vancouver

Between:

Wahid
Moussa

Plaintiff

And

Nadin
Fahed Awwad

Defendant

Before: The Honourable Madam Justice Russell

Reasons for Judgment

INTRODUCTION

[1]            
This is an action arising out of a motor vehicle
accident which occurred on April 9, 2004 (the “Accident”).

[2]            
Liability is admitted, but the defendant
disputes the extent of the injuries suffered by the plaintiff and the damages
that flow therefrom.

FACTS

Background

[3]            
The plaintiff, Wahid Moussa, was born on July
19, 1957, in Alexandria, Egypt. He comes from a well-established family. The
plaintiff studied at the Helwan University in Cairo, earning a Bachlor’s Degree
in Commerce and Business Administration in 1980. He then spent a year in the
army and commenced his career in 1982. From 1982 to 2002, the plaintiff had an
impressive career in Egypt working in printing, electronics, graphic design and
video production. At his various places of employment he received promotions
and increased remuneration and in addition to full-time employment he often served
private clients, requiring him to juggle tasks and work long hours.

[4]            
The plaintiff enjoyed his work. He spoke enthusiastically
about how he valued the interaction with clients and fellow staff, the
discipline and challenges of overseeing quality control, working with leading
technology, the artistic dimension to his work, and the ability to provide good
value for services.

[5]            
Aside from his career demands and his volunteer
work, the plaintiff also found time to engage in a variety of other activities.
He played soccer and volleyball, swam, and visited his family in Alexandria.

[6]            
The plaintiff also travelled extensively. Each
year, he would take a month to travel either to Europe, the Middle East or on
occasion to the US and Canada.

[7]            
In 1997, the plaintiff travelled to Toronto to
participate in a four-month training session through the Geoffrey R. Conway
School of Broadcasting and Communications, following which he used his newly
acquired skills to do volunteer work in video editing for various Christian
ministries.

[8]            
As a result of the plaintiff’s trip to Toronto, he
wished to immigrate to Canada where media and video were evolving quickly and because
Canada had technology not available in Egypt. Because he had a solid foundation
of vocational skills in order to launch his career in Canada, he felt he could
succeed in Canada. In response to encouragement from Mr. Abadir, a work
colleague who had immigrated to Canada in 1998, the plaintiff applied to
immigrate to Canada as a skilled worker. The process took about four years. By
the time the plaintiff was accepted as an immigrant, he had managed to
accumulate savings equivalent to $74,000 CND.

[9]            
The plaintiff arrived in Vancouver in December
2002.  The plaintiff originally stayed with his friend, Mr. Abadir. He
spent the first few months getting an apartment, a driver’s licence, improving
his English and learning the culture. In the spring of 2003, the plaintiff
attended the Job Finding Club, offered by S.U.C.C.E.S.S. where he received
assistance in developing a specialized resume for a position in graphic design.
He also prepared a second resume, geared for video work, but because he lacked
the equipment at the time, the plaintiff elected to focus his immediate career
goals in the area of graphic design. After completing the S.U.C.C.E.S.S.
program, the plaintiff bought software for editing and applied for several
positions in the Lower Mainland in the field of printing and graphic design.

[10]        
In the fall of 2003, through contacts he had
developed in the Christian community, the plaintiff was able to travel to
Calgary to work as a cameraman at a Christian conference. His flight and
accommodation expenses were covered by the Christian ministry, however he was
not paid for his work. This trip allowed him to make contacts with people in
the Christian community and provided him with more experience doing video work.

[11]        
Over the fall of 2003 and spring of 2004, the
plaintiff studied technology and downloading and learned various software
programs in graphic design and editing. He also continued his job search.

[12]        
Just before the Accident, the plaintiff was
hired by a company called Allegra for a short-term job, earning $555 in 2004.

[13]        
In the spring of 2004, following the Accident,
the plaintiff signed up for English Language courses at Douglas College.

[14]        
The plaintiff was healthy and fully functional
prior to the Accident. He was able to work long hours, with no constraints or
adverse consequences. The medical records of his family doctor, Dr. Gill,
note a single visit in January 2003, when the plaintiff complained of pain in
the right side of his neck. He was prescribed a brief course of pain medication
and did not re-attend.

Motor
Vehicle Accident – April 9, 2004

[15]        
The Accident which gave rise to this action
occurred on April 9, 2004. The plaintiff was planning to attend a church
service in Abbotsford. The plaintiff met his friend, Mones Demian and the
defendant, Nadin Awwad, at a coffee shop where he learned that Ms. Awwad
would be driving them to Abbotsford.

[16]        
At the time of the Accident, the defendant’s
vehicle was travelling northbound on 160th Street in Surrey and she was turning
onto the ramp to merge into eastbound traffic on Highway 1 at 80 km an hour,
when the defendant lost control of her vehicle. The vehicle swerved across the
two eastbound lanes, then off the highway and into the ditch separating the
east and westbound lanes of traffic, flipping at least once, landing on the
roof, and flipping back onto its wheels, this time facing west. By the time the
defendant’s vehicle came to a rest, the roof was crushed and the car windows
were shattered.

[17]        
The plaintiff was sitting behind the driver with
his left shoulder adjacent to the car door. The plaintiff was wearing his seat
belt. During the Accident the plaintiff struck his left shoulder against the
window and door frame. After the Accident, the plaintiff described feeling
immediate pain in his left shoulder. He was shaking. He saw Mones Demian lying
on the ground. The defendant’s vehicle was written off as a total loss.

[18]        
Following the Accident, the plaintiff was taken
by ambulance to the Delta Hospital where he was x-rayed. The radiological
report revealed a 2nd to 3rd degree acromioclavicular (“AC”) joint separation,
but no other fracture, dislocation, or bony abnormality was seen. The plaintiff
was given Tylenol 3 and a sling, and was released.

After
the Accident

[19]        
In the days following the Accident, the
plaintiff experienced a great deal of pain and discomfort. The plaintiff
testified that he was unable to sleep for the next four to five nights during
which time he kept experiencing flashbacks. He also avoided driving on the highway
for the first six months. The plaintiff worried about being able to work. He
testified that the pain was so severe that at one point, he cut his shirt off
rather than try to undress.

[20]        
On the Monday morning following the accident,
the plaintiff attended the offices of Dr. Gill, where he was examined and
prescribed Percocet, which provided temporary relief but made him drowsy.

[21]        
The plaintiff initially experienced a great deal
of pain in his whole shoulder area, some of which persisted even after taking
the pain medication. He also described pain in his elbow and tingling and
numbness in his left fingers. About a month after the Accident, when he stopped
taking the Percocet, the plaintiff complained about pain in the left side of
his neck.

[22]        
For the first four to five months following the
Accident, the plaintiff tried to avoid doing anything. Various friends assisted
him with his care. He attended physiotherapy and followed through on the
exercises that were prescribed for him by his physiotherapist, Michele Aldrich.

[23]        
Over the ensuing months, the plaintiff continued
to follow-up with his physiotherapist and to follow-up with Dr. Gill. To
assist in the treatment of the plaintiff’s problems, Dr. Gill made a
series of referrals: initially to Dr. Sadowski, a neurologist, who
assessed the plaintiff with respect to the left arm numbness in May 2004; Dr. McKenzie,
an orthopaedic surgeon also in 2004; Dr. Patel, an orthopaedic specialist,
in 2005; Dr. O’Connor, a physiatrist, in the summer of 2005; and Dr. Keyes,
a neurologist, who saw the plaintiff in April and June 2006, as a result of his
persisting left arm and hand pain.

[24]        
In the course of these treatments, to assist in
isolating the source of the plaintiff’s complaints, the plaintiff underwent a
series of follow-up imaging of the left AC joint, and in addition the plaintiff
underwent three injections, the first two conducted by Dr. O’Connor. These
injections, while intended to provide a patient with pain relief, can also be
used as a diagnostic tool to pinpoint the location of the pain. The first,
which took place at GF Strong on July 22, 2005, involved a left-sided
subacromial injection with 7 cc Lidocaine and 1 cc of Depo-Medrol 40 mg.
Following this injection, the plaintiff testified that he experienced modest relief
for 3-4 months, which he quantified as about a 50% improvement in his left
shoulder pain. The relief if provided, however, was only temporary.

[25]        
Despite the improvement following the injection,
the plaintiff testified that he could not work continuous hours as a result of
his injuries and therefore could not take on full-time employment. Mr. Abadir
testified that a job at Shefield Group (“Shefield”) opened up in 2005 of which
he advised the plaintiff, but the plaintiff did not apply. At the time the
plaintiff was doing some editing work on a play for Rivers of Life, a Christian
ministry, which was taking up a lot of his time.

[26]        
The second injection, an AC joint injection, was
performed by Dr. O’Connor under fluoroscopic guidance at Vancouver General
Hospital on July 18, 2006. This led to a more significant improvement, but the relief
from pain was again only temporary.

[27]        
In October 2006, following the second injection,
the plaintiff travelled to Egypt where he attempted to work. He returned to
Canada in March 2007 and then saw Dr. Hawkins, an orthopaedic surgeon, in
May 2007. The plaintiff testified as to his fear of surgery, even after his
visit with Dr. Hawkins.

[28]        
In June 2007, the plaintiff returned to Egypt
for a specific film project. Because of the pain in his shoulder, he hired
someone to do the outdoor filming that could not be done on a tripod. He
returned to Canada in November 2007. It was at this time that he started to
consider surgery because of the pain he was still experiencing.

[29]        
The trial of this action was scheduled to
proceed in 2007, however, it was adjourned in order for the plaintiff to
undergo surgery.

[30]        
In January 2008, the plaintiff saw Dr. McKenzie,
another orthopaedic surgeon. At this appointment, the plaintiff inquired of Dr. McKenzie
about the pros and cons of surgery. Following this meeting, the plaintiff
reluctantly agreed to undergo surgery, but only if it were done by Dr. McKenzie
with whom he felt comfortable.

[31]        
As a result, on February 25, 2008, at the
Ambulatory Surgical Centre in Vancouver, Dr. McKenzie performed a
subacromial debridement and resection of the distal clavicle. The operative
report identified moderately severe bursitis in the left shoulder.

[32]        
The surgery brought about at least a temporary,
noticeable improvement in the plaintiff’s left shoulder complaints.

[33]        
Following surgery, from March 17 to May 16,
2008, the plaintiff again underwent a series of physiotherapy treatments with Ms. Aldrich.

[34]        
Dr. McKenzie’s records disclose a series of
follow-up visits from March 13 to June 11, 2008. The records of June 11, 2008
indicate that the plaintiff was at the time 3 ½ months post-surgery and on a
home program. He was no longer taking medications and had a full range of
motion. He continued to experience anterolateral shoulder pain, but it was
reduced. The plaintiff reported that he was happy he had had the surgery, and
he assessed his recovery as 60-70% better.

[35]        
The plaintiff’s evidence was that after the
initial rehabilitation period following the surgery, he was much better. While
the plaintiff testified that he generally avoided the computer throughout April
and May 2008, he started his first full-time employment in Canada, at Shefield
in May 2008, as marketing coordinator. In the early days of his work at
Shefield, the plaintiff experienced light pain which he was able to work around.
He testified that he was feeling best three to four months after surgery, but
then around July 2008 he started to feel a gradual return of the shoulder pain.
His pain continued to worsen over the remainder of the 2008 year. The plaintiff
testified that the first three months of 2009 were the worst. Around that time
the plaintiff was doing volunteer work for the Mercy Touch Ministry in addition
to his employment.

[36]        
However, he testified that over time his pain worsened
and his intake of medication increased from needing a Tylenol two to three
times a week to taking one or two pills a day. By December 2008, his left
shoulder was sufficiently painful that he approached his employer about
quitting, but was persuaded to continue past Christmas and into the New Year. He
left his employment on March 25, 2009.

[37]        
The plaintiff had another appointment with Dr. Gill
in April 2009 when he was complaining of left hand numbness, left trigger finger
and left shoulder pain. Dr. Gill referred the plaintiff back to Dr. McKenzie.

[38]        
Aside from the shoulder pain, the plaintiff also
suffered from neck pain, which waxed and waned, improving when he made a number
of ergonomic changes to his work station in the early summer of 2009, on the
recommendation of Megan Stacey, an occupational therapist from OT Consulting,
who was hired to implement the rehabilitation recommendations of Dr. Craig.
The adjustments helped with the plaintiff’s neck pain. However, it continues to
bother him, and it did not assist with his shoulder pain.

[39]        
The plaintiff has continued to experience pain
in his left shoulder region which increases in direct proportion to the amount
of time that he spends on the computer. For that reason, his work at the
computer must be regularly broken by rest periods. His last initiative to
address the shoulder pain was in September 2009 when Dr. Gill injected the
plaintiff’s left shoulder.

[40]        
On September 28, 2009, the plaintiff underwent the
third injection, this time an injection of the subacromial bursa and the
infraspinatus tendon using 80 milligrams of depo-medrol mixed with a millilitre
of 2% xylocaine. Unfortunately, this did not result in any noticeable
improvement to the plaintiff’s symptoms. Dr. Gill testified that
injections generally follow a law of diminishing returns and he does not
believe that a fourth injection would result in significant improvement.

[41]        
The plaintiff testified that as of the date of trial,
he continued to have ongoing pain in his left shoulder and his sleep continued
to be disrupted because of pain in his left shoulder.

Lay
evidence

[42]        
Ms. Suzanne Yacoub, who has known the
plaintiff for 22 years through a Christian ministry that they both did
volunteer work for, testified to the superb quality of the plaintiff’s work and
work ethic and the long hours he would put into his work, prior to the Accident.
However, she testified that when she visited him after the Accident and when
the plaintiff made his trips to Egypt in 2006 and 2007, she noted significant
changes in him. She noticed that overall, he was less active and less energetic.
When they worked together on a video project and he was working at his computer,
she noted that he would require frequent breaks, with the longest time he
worked without a break being about 45 minutes. She noticed that sometimes, the
plaintiff would take pain killers and lie down. He would also hire help for
many of his chores.

[43]        
Ms. Nevine Guindy, an impressionist
painter, who also met the plaintiff in Egypt doing volunteer work for the
Church, testified that she was impressed by the plaintiff’s artistic talent. The
plaintiff did some work for her when he visited in 2006 and she was extremely
satisfied with his work.

[44]        
Mr. Mones Demian, who was a passenger in
the defendant’s vehicle, described how, following the Accident he would often
see the plaintiff holding his shoulder as if in pain. While he testified that
this stopped after surgery, he said it started up again after a few months. He
recalled that the longest time that he observed the plaintiff working at the
computer was 30 minutes.

[45]        
Ms. Nahid Salem visited the plaintiff in
the hospital the day of the Accident. She testified that he was in a lot of
pain. She testified that after the Accident, she assisted the plaintiff by
driving him places and that the plaintiff had become a very nervous passenger. He
was particularly anxious when on the highway. She also noted that when he was working
he would have to stop whatever he was doing on the computer because of pain in
his left shoulder. The longest time that she observed the plaintiff working on
the computer without a break was about one hour, at which time he got up and
walked around.

[46]        
Mr. Yousri Abadir, who worked with the
plaintiff at the Shefield group, testified that he was aware that while the
plaintiff was working at Shefield, he was struggling with pain.

[47]        
Mr. Peter Hanna, a pastor, testified that
since the Accident, when the plaintiff is filming special events at the church,
he uses a tripod and will often have to take breaks and sit down.

MEDICAL
EVIDENCE

Imaging

[48]        
Following the x-rays taken at the hospital on
the day of the Accident, the plaintiff underwent a series of follow-up imaging
tests over the ensuing years.

[49]        
On May 13, 2004, spinal imaging showed a mild
disc space narrowing with posterior osteophyte formation at C5-6, with moderate
bilateral neural foraminal stenosis from uncovertebral osteophyte encroachment.
Imaging of the the AC joint demonstrated normal joint space, no arthritic
change, with no abnormal widening on the weight-bearing view. The clavicle was
slightly superiorly positioned with respect to the acromion process, but the
report noted this may be normal variation. Finally, no focal bony abnormality
was seen (no osteoarthritis).

[50]        
A July 27, 2004 CT scan of the cervical spine,
showed no disc herniation or spinal stenosis at C5-6, but bilateral foraminal
narrowing to a mild degree was present secondary to uncovertebral degeneration.

[51]        
In an August 22, 2004 chest image, degenerative
changes were incidentally noted in the left AC joint.

[52]        
A report on a scan of the AC joints, done
December 15, 2004, noted that the right AC joint was normal, however, the left
was abnormal. The distal end of the left clavicle was subluxed superiorly and a
small bone fragment adjacent to the acromion was seen. These findings were in
keeping with a fracture with mild shoulder separation.

[53]        
On February 3, 2005, an MRI was done on the left
shoulder, which showed moderate AC joint degenerative changes. The subacromial
space was relatively well maintained with no significant subacromial
impingement. A subtle increase in signal was noted in the distal supraspinatus
tendon suggesting subtle tendonopathy but no rotator cuff full thickness tear
was identified. The impression was of a generalized cervical spondylosis with
multilevel central spinal canal and neural foraminal stenoses.

[54]        
On May 30, 2006, Dr. Keyes referred the
plaintiff for an MRI of the cervical spine and thoracic outlet which noted a
generalized cervical spondylosis with multilevel central spine canal and neural
foraminal stenoses.

[55]        
On April 22, 2009, an x-ray of the left shoulder
showed evidence of a previous mild separation and malalignment of the AC joint
with evidence of an old bony injury to the superior aspect of the acromion
process.

[56]        
An August 8, 2009 MRI of the left shoulder, in
comparison to the MRI done in February 2005, illustrated post-surgical changes;
partial thickness; bursal-sided tear of the infraspinatus; and subacromion and
subdeltoid bursitis.

[57]        
Finally, a report of a CT scan done December 15,
2009, which did not have any of the previous images for comparison, noted there
was no evidence of an ununited fracture through the base of the coracoid, but a
possible old healed fracture at this location with minimal residual deformity. It
also noted a bony excrescence arising from the superior aspect of the acromion.
This could represent post-traumatic ossification, an old healed fracture, or be
secondary to prior surgery. Finally, the report noted a widened AC joint likely
secondary to apparent prior surgery.

Evidence
of physicians and other health care professionals

Ms. Aldrich

[58]        
Ms. Aldrich is a physiotherapist at Eagle
Ridge Aquatic Centre Physiotherapy who treated the plaintiff over the period of
2004 to 2008. She testified that the initial assessment, conducted by another
physiotherapist on May 1, 2004, identified shoulder, upper arm and elbow pain. Ms. Aldrich
took over the plaintiff’s primary care thereafter.

[59]        
On May 10, 2004, Ms. Aldrich noted that the
plaintiff’s left shoulder was “very painful” and stiff on palpation. On June 7,
she noted pain in the neck and left shoulder as well as the left elbow. She
queried a rotator cuff tear on June 14 because of the significant lack of
strength in the left shoulder, but could not determine whether the plaintiff’s
reduced strength was due to pain or muscle injury. On June 18, she noted that
the plaintiff had tennis elbow and golf elbow which she testified can be caused
by trauma. On June 21, she noted that the plaintiff was experiencing tingling
in the left hand and the forearm.

[60]        
Ms. Aldrich provided various treatments
over the summer and early fall of 2004, including traction on the neck, mobilizations
on the neck and shoulder joints, strengthening exercises, ultrasound on the
left AC joint, and neuro treatment on the neck.

[61]        
Ms. Aldrich observed that the plaintiff was
an extremely compliant patient and concerned with what he had to do to progress
in his recovery.

[62]        
In terms of the plaintiff’s functional status, Ms. Aldrich
testified that the plaintiff often reported having problems with computer work;
his shoulder would flare up and his pain would increase and as a result he was
not able to work at his computer as much as he used to.

[63]        
The plaintiff returned for three further sets of
treatments: in July 2005, for treatment of neck pain; in July 2006, for
treatment of neck and shoulder pain; and in March 2008, for treatment of his shoulder
post-surgery. During these treatment sessions, she discussed the plaintiff’s
ongoing sleep problems and the plaintiff’s problems working at the computer.

[64]        
Ms. Aldrich testified that by the end of
her treatment, the plaintiff had very good range of motion, but there were some
restricted movements which indicated that he had some residual stiffness in his
left shoulder. He had fairly good strength, but had a fair bit of tenderness at
his distal clavicle where he had his resection surgery and he still could not
lie on his left side. The last time she saw the plaintiff was May 16, 2008.

Dr. Gill

[65]        
Dr. Gill, the plaintiff’s family physician,
testified at trial concerning his treatment of the plaintiff over the period of
2004 to 2009. Following the Accident, he initially assessed the plaintiff on
April 12, 2004 when the plaintiff complained of left shoulder and upper back
pain, with marked tenderness over the left AC joint. Initially, he diagnosed a
third degree AC separation and prescribed Percocet. During the next visit of
April 16, 2004, Dr. Gill noted that the plaintiff was experiencing
progressive pain into his left anterior arm, with tenderness over the triceps
muscle. He prescribed anti-inflammatories. Dr. Gill saw the plaintiff
again April 26 and May 12, 2004 for continuing and increased pain to these
areas. As early as May 12, 2004, Dr. Gill questioned ulnar
neuropathy and/or cervical radiculopathy because of increased neck and shoulder
pain which was radiating into the left arm with numbness in the fingers. As a
result, Dr. Gill ordered further x-rays which were conducted on May 13 and
referred the plaintiff to Dr. Sadowski, who felt that the elbow pain was
not nerve-related but musculoskeletal, and thus related to the neck and
shoulder problems.

[66]        
In his medical-legal report dated May 8, 2005, Dr. Gill
identified several injuries that occurred as a result of the Accident,
including trauma to the neck which led to persisting neck and upper back pain,
separation to the AC joint and osteoarthritic changes to the left AC joint, supraspinatus
tendonopathy, left lateral epicondylitis and left carpal tunnel syndrome. While
Dr. Gill noted that there had been significant improvement since the
Accident, he also noted that there had been little improvement over the
previous several months. He also noted that the plaintiff’s CT scan had
revealed degenerative changes that were most certainly present prior to the
Accident, but had been asymptomatic and probably would have remained so, but
for the Accident, which elicited the pain. Dr. Gill predicted the
“distinct possibility” of the need for a resection of the distal clavicle, and
noted that there was no guarantee that this or the cortisone injections would
improve the plaintiff’s left shoulder pain. He anticipated that the plaintiff
would have difficulty working for prolonged periods at a desk and noted that
lifting heavy camera equipment was to be avoided. Overall, Dr. Gill’s
prognosis for improvement of the plaintiff’s neck and upper back pain was not
optimistic.

[67]        
Almost all of Dr. Gill’s notes after April
2004 have the notation “MVA 719” in the left side, indicating his view that the
purpose of the appointment was to treat Accident-related injuries. Dr. Gill
also confirmed that the plaintiff had not complained of any right-sided pain
since the Accident.

[68]        
Dr. Gill reviewed the report of Dr. Leith
and testified at trial that he disagreed with Dr. Leith’s conclusion that
the neck injury had resolved and that the elbow pain was not related to the Accident.

Dr. McKenzie

[69]        
Dr. McKenzie gave expert evidence as an
orthopaedic surgeon with a specialized practice in shoulder and knee
arthroscopic surgery.

[70]        
Dr. McKenzie assessed the plaintiff in a
medical-legal capacity, over three assessments: November 24, 2004, January 20,
2006 and January 16, 2008, prior to performing surgery on February 25, 2008.

[71]        
During these assessments, Dr. McKenzie
concluded that the plaintiff had sustained the following injuries: an injury to
the neck; traumatic medial epicondylitis of the left elbow; and a grade 2
dislocation of the AC joint and injury to the rotator cuff.

[72]        
At trial, Dr. McKenzie explained that there
are a number of grades of separation going from mild to moderate to severe. He
characterized a grade one as a strain or sprain of the AC joint that involves
some damage to the ligaments around the joint but where the joint itself does
not move. A grade two separation is where the ligaments are torn and strain or
lengthen the ligament from the coracoid process to the clavicle. This can be
seen on an x-ray because there is movement. A grade three separation is a
complete dislocation of the distal clavicle and the acromion. A grade four
dislocation involves the bone sticking far enough back that it goes into the
deltoid muscle. Grade five involves severe elevation and finally, in a grade
six the clavicle goes underneath the coracoid process. Dr. McKenzie
clarified in cross-examination that a higher degree or grade separation does
not imply a worse prognosis. Because a grade three is completely up, there is
often none of the pinching or grinding that occurs with a grade two and
therefore a grade three can become asymptomatic from a pain point of view.

[73]        
The first assessment took place on November 24,
2004. Dr. McKenzie testified that the plaintiff’s most significant
complaint from a functional perspective was his shoulder pain. On examination, Dr. McKenzie
noted that the upper extremities showed an obvious abnormality in the left
shoulder with some muscle wasting in the rotator cuff muscles.

[74]        
In his November 24, 2004 report, Dr. McKenzie
noted that other than some pre-existing but asymptomatic degenerative changes
at the C5-6 level, the plaintiff was completely normal from a musculoskeletal
point of view prior to the Accident. However, he now suffers from significant
neck pain, that in Dr. McKenzie’s opinion, the Accident caused by rendering
his asymptomatic changes symptomatic. While Dr. McKenzie was optimistic
that the plaintiff would still experience some improvement, it was his opinion
that any discomfort remaining after two years from the Accident would likely be
permanent.

[75]        
With respect to the left AC joint, Dr. McKenzie’s
opinion was that the plaintiff had an obvious grade three dislocation of the AC
joint and had developed osteoarthritis in that joint. Dr. McKenzie
clarified at trial that he thought it was grade three initially but the
subsequent x-rays revealed that it was a high grade two. He also noted
tenderness over the rotator cuff, and queried whether the plaintiff might have
damaged the rotator cuff as well, and suggested an MRI investigation.

[76]        
For treatment, Dr. McKenzie recommended the
plaintiff undergo anaesthetic and cortisone injections into both the AC joint
area and the subacromial space. He also suggested that the AC joint and the
rotator cuff would likely require surgery if the plaintiff did not experience
relief from the injections.

[77]        
With regard to the left elbow, it was Dr. McKenzie’s
opinion that the plaintiff has a traumatic lateral epicondylitis. He suggested
that the plaintiff may benefit from injections with local anesthetic and
steroid in addition to stretching and physiotherapy. Finally, Dr. McKenzie
noted that the plaintiff was suffering from left carpal tunnel syndrome. However,
with respect to causation, Dr. McKenzie deferred his opinion to that of Dr. Sadowski,
the plaintiff’s neurologist, whose May 20, 2004 records state that the cause
was not likely to be neurogenic in origin.

[78]        
Dr. McKenzie concluded his November 24,
2004 report by noting that his prognosis for full recovery of the plaintiff’s
neck and shoulder was guarded.

[79]        
In his January 20, 2006 report, with regard to
the cervical spine, Dr. McKenzie stated that it remained his opinion that
the plaintiff likely had some pre-existing but asymptomatic degenerative
changes in his neck, but now has significant discomfort which seemed to be
centred in the area of his degenerative change. He repeated his earlier opinion
that the Accident likely caused his asymptomatic changes to become symptomatic.
Since the plaintiff had not improved much since he had last seen Dr. McKenzie,
it was his opinion that the prognosis for complete recovery to his previous
asymptomatic status was less likely and any prognosis was guarded. Dr. McKenzie
opined that the plaintiff was likely to have some ongoing discomfort in his
neck for the foreseeable future and perhaps even permanently as a result of the
Accident. It was also his opinion that the plaintiff was likely going to require
surgery on his left shoulder. However, he also noted that the plaintiff was
likely to still have some ongoing discomfort even following surgery,
particularly in the subacromial area.

[80]        
In addition, Dr. McKenzie noted, with
regard to the left AC joint, it was his opinion that the plaintiff had a high grade
two AC separation on the left side and had developed a degenerative AC joint. Furthermore,
on physical examination Dr. McKenzie noted that the plaintiff appeared to
have some significant ongoing impingement secondary to the rotator cuff
tendonopathy. However, based on the MRI, it did not look as though he had a
complete rotator cuff tear.

[81]        
With respect to the elbow pain, Dr. McKenzie
examined the issue of causation. Based on the plaintiff’s self-reports that he
had noticed elbow pain from approximately a month following the Accident and he
had had no intervening accidents in the meantime, and Dr. Gill’s
references to elbow problems dating back to May 12, 2004, Dr. McKenzie
concluded that there is likely a causal relationship to the  Accident.

[82]        
In regard to the shoulder injury, Dr. McKenzie
noted tenderness over the rotator cuff on several of his visits. As of January
2006, he wrote that the plaintiff appeared to have significant ongoing
impingement (pinching) secondary to rotator cuff tendonopathy. With respect to
causation, Dr. McKenzie noted in his report that in his opinion it is
unlikely that the plaintiff would have developed the discomfort coming from the
rotator cuff tendonopathy without the Accident. He noted the plaintiff had a
contusion to the shoulder which caused the AC separation and also contused the
shoulder area. The plaintiff was experiencing symptoms of impingement either
from the contusion to the shoulder or from some deconditioning around the
shoulder girdle. He further noted that the fact that there were symptoms coming
from the subacromial space as well as the AC joint is supported by the
significant improvement of his symptoms, although not resolution, following the
injection by Dr. O’Connor into the plaintiff’s subacromial space.

[83]        
Finally, in his January 20, 2006 report he
commented on the report of Dr. Leith, dated November 10, 2005, and
disagreed with Dr. Leith’s opinion that the soft-tissue injury to the neck
had resolved. Dr. McKenzie noted that the plaintiff continued to complain
of discomfort in his neck and continued to show tenderness and discomfort with
certain parts of his range of motion. He also disagreed with Dr. Leith’s
opinion that the rotator cuff tendonopathy was not attributable to the
Accident, as Dr. McKenzie felt it was unlikely to have happened without
the Accident.

[84]        
Dr. McKenzie’s final report, prior to
surgery, was dated January 16, 2008. Dr. McKenzie noted that the plaintiff
experienced between 40-60% improvement for the first two to four months
following his two injections, however, he was still having ongoing problems
with his left shoulder in the anterior and superior aspects which were
aggravated by over three hours’ work, cold weather and pushing and carrying
activities. Dr. McKenzie concluded that the plaintiff would benefit from
surgery on his left shoulder as the injections provided only temporary relief. Dr. McKenzie
explained the details and risk of surgery to the plaintiff and sent him home to
think about whether or not he wanted to undergo the surgery.

[85]        
The plaintiff’s decision to have the surgery
performed by Dr. McKenzie altered Dr. McKenzie’s status from that of
a medical-legal expert to a treating physician. Therefore Dr. McKenzie’s
records after February 2008 are brief.

[86]        
On February 25, 2008, Dr. McKenzie
performed surgery on the plaintiff − a subacromial debridement (acromioplasty) and open resection of the
distal clavicle. This involved two steps: first, Dr. McKenzie scoped out
the joint and the subacromial space and then moved to the distal clavicle,
which required an incision because it was elevated and therefore he could not
get at it via scope. In the operative report, Dr. McKenzie noted a small
os acromiale (unfused bone) which showed some movement in the distal portion of
the acromion. Dr. McKenzie chose not to remove it as, in his opinion, it
would have detached the anterior deltoid and he did not think that it was the
source of the plaintiff’s symptoms.

[87]        
Following the surgery, the plaintiff initially recovered
well. Six weeks following the surgery, on April 9, 2008, Dr. McKenzie
followed up with the plaintiff, who reported 90% improvement, although he was
still experiencing some pain. On June 11, 2008, he saw the plaintiff
again, and noted that the plaintiff had a full range of motion, but again still
had pain, this time describing his symptoms as only 60-70% better.

[88]        
Dr. McKenzie followed up again with the
plaintiff on May 14, 2009, at the request of Dr. Gill. In his letter to Dr. Gill,
Dr. McKenzie reported that clinically the plaintiff seemed to have
resolved his neck and elbow problems. While he did have flare-ups of his
shoulder complaints, it appeared to be mainly rotator cuff and not AC joint
related and Dr. McKenzie opined that it might be related to the biceps tendon.

[89]        
During the assessment there was reference to a
95% recovery. The plaintiff explained at trial that during his appointment, Dr. McKenzie
had asked whether he was better since the surgery and he had agreed. The
plaintiff testified that Dr. McKenzie had then suggested that he had had a
90-95% improvement, he had again agreed, recognizing that about two months
after the surgery he had been much better. The plaintiff testified that he
answered “maybe” to Dr. McKenzie’s questioning about this degree of improvement
and that he did not know whether he had improved that much. When Dr. McKenzie
was questioned about this, he acknowledged that after surgery, patients are
inclined to favourably report the results of surgery to their surgeon. It was
noted by Dr. McKenzie that the prognosis in May 2009 was likely
overly optimistic and that the more realistic recovery was 60-70%.

[90]        
Dr. McKenzie recommended stretching and strengthening
exercises. Dr. McKenzie concluded that the plaintiff had shown 50%
improvement over the previous month and hoped that he would continue to improve.
If he did not, Dr. McKenzie suggested that a further injection of steroid
and local anesthetic into the subacromial bursa might be indicated again,
however, he testified that the plaintiff was not a candidate for surgery with
respect to the os acromiale because it was serious open surgery and the chance
of recovery was less than 85% but closer to the 50% range.

[91]        
The issue of the presence or absence of the os
acromiale was debated at trial. Because it was not visible on the MRI,
plaintiff’s counsel conceded that it was not in issue.

[92]        
Dr. McKenzie testified that qualitatively
the plaintiff’s injuries were consistently the same but quantitatively the pain
had improved from before the surgery. In cross-examination, he testified that
it was possible that the rotator cuff injury was aggravated by working long
hours, however, he clarified on re-examination that the plaintiff was
pre-disposed to this aggravation as a result of the injury to the area and the resulting
surgery. Furthermore, while Dr. McKenzie also admitted that the muscle
wasting in the rotator cuff could have occurred pre-injury, in the absence of
any evidence that he had any pre-existing problems or complaints, and in light
of the normal muscle bulk in the other shoulder, Dr. McKenzie testified
that it was unlikely the muscle wasting occurred before the Accident.

Dr. Craig

[93]        
Dr. Craig testified as an expert in
physical medicine and rehabilitation.

[94]        
Dr. Craig examined the plaintiff on May 26,
2009, and noted that he was suffering from residual symptoms which he
attributed to the Accident, including:  episodic pain in the left posterior
neck and upper trapezius; referral of pain into the outer shoulder and pain
with prolonged work on a computer; episodic pain in the anterior shoulder,
around the AC joint , which occurred with working on a computer for prolonged
periods; inability to lie on the left shoulder at night; pain in the left outer
shoulder which increased with activity; and injury to the left elbow. Dr. Craig
was of the opinion that the plaintiff sustained an injury to the elbow in the Accident
which had resolved by the time he saw the plaintiff in the spring of 2009.
However, it was his opinion that the symptoms in the plaintiff’s left hand were
unlikely related to the injuries from the Accident.

[95]        
Dr. Craig, though he acknowledged that the
plaintiff had some degenerative changes in the cervical spine, attributed the
plaintiff’s neck problems to injury sustained in the Accident rather than aging
and concluded the plaintiff had a moderate soft-tissue injury to the neck. With
respect to the left shoulder, Dr. Craig agreed with Dr. McKenzie that
the plaintiff also likely had an injury to the rotator cuff, or otherwise
irritation and impingement of the rotator cuff, due to altered biomechanics
from the AC injury. Dr. Craig concluded that the plaintiff had developed
secondary myofascial pain and he was of the opinion that the plaintiff has
ongoing chronic left shoulder pain as a result of the Accident

[96]        
With respect to further treatment, Dr. Craig
recommended further occupational therapy assessment of his work setup as there could
be ergonomic changes that could be accomplished that may reduce some of the
strain on the plaintiff’s neck and left shoulder.

[97]        
In terms of Dr. Craig’s opinion regarding
the plaintiff’s work and his limitations, he felt the plaintiff would be
limited in his ability to carry his video camera on his shoulder for more than
a couple of minutes at a time. With respect to computer work, Dr. Craig’s
opinion was that the plaintiff should be able to continue the computer work,
provided he takes appropriate breaks. In addition, as noted, Dr. Craig
suggested there may be changes that could be made to his work set-up that will
permit him to be less symptomatic. However, despite the foregoing, Dr. Craig
concluded that the plaintiff is likely limited in the amount of time he can
spend on a computer and that over time he may find a decreasing tolerance for
computer work.

[98]        
Dr. Craig’s prognosis was that the
plaintiff had likely reached his point of maximum medical improvement in terms
of the left AC joint. In his opinion, the long delay in receiving appropriate
treatment probably resulted in a poorer outcome. With respect to the rest of the
plaintiff’s shoulder, Dr. Craig felt that there was a reasonable
probability of improvement, however, given that his symptoms had been present
for approximately five years, Dr. Craig’s prognosis for complete resolution
of the plaintiff’s symptoms was poor and Dr. Craig found the plaintiff at
risk for further exacerbation or prolonged recovery, if he were to have another
accident. In addition, the plaintiff is at slightly increased risk for
degenerative changes in his neck, due to his injuries from the Accident.

Dr. Leith

[99]        
Dr. Leith testified as an expert in
orthopaedic surgery with a further subspecialty in complex shoulder surgery as
well as expertise in dealing with imaging of the shoulder.

[100]     Dr. Leith’s first medical legal report, dated November 10,
2005, was based on a review of the plaintiff’s medical documentation and an
assessment of the plaintiff on October 21, 2005. The plaintiff presented with
his chief complaint being left shoulder and neck pain. He noted that the
plaintiff explained that he felt pain in his shoulder immediately following the
Accident, but that the pain in the neck began approximately three weeks after
the Accident. He noted that the pain had slightly improved with physiotherapy
and pain medication, but is aggravated with long periods of work, either on the
computer or with his camera. Based on his physical examination of the plaintiff
and a review of the medical records, Dr. Leith was of the opinion that the
injury sustained at the time of the Accident was that of a left AC joint sprain
and that the imaging and evaluation would indicate that this was, at most, a
grade two sprain. In addition, the plaintiff likely sustained a soft tissue
injury to the paraspinal musculature of his neck region, which had resolved as
of the time of the evaluation.

[101]     It was Dr. Leith’s opinion that any other symptoms exhibited by
the plaintiff through the medical records were not attributable to the
Accident. For example, the axial neck pain that the plaintiff was experiencing
was related to the foraminal stenosis and degenerative changes at the C5-6
level, noted on the imaging studies, which he suggested could become aggravated
by the plaintiff’s work activities. Furthermore, the elbow pain and distal
symptoms were unrelated to the Accident as their onset was well after the
Accident. Finally, the rotator cuff tendinosis that the plaintiff was
experiencing had developed with time and in Dr. Leith’s opinion, was not
attributable to the Accident.

[102]     Given his conclusion that the only injuries that could be associated
with the Accident were the AC joint sprain and paraspinal soft tissue injuries,
it was Dr. Leith’s opinion that a reasonable amount of time off from work
as a result of a sprain to the AC joint would be approximately 8 to 12 weeks’
duration and there would not be any permanent disability from the sprain beyond
12 weeks.

[103]     Dr. Leith’s recommendations included an injection of local
anesthetic and cortisone directly into the subacromial space to see if it
relieved any of the plaintiff’s current symptoms. Dr. Leith testified at
trial that a grade 2 AC separation does not usually require surgery.

[104]     Dr. Leith prepared another report on July 15, 2008, in response
to the medical reports of the plaintiff’s other doctors. Specifically, in
response to Dr. McKenzie’s report dated January 20, 2006, which documented
his opinion that the plaintiff’s elbow problems were causally related to the
Accident, Dr. Leith remained of the opinion that these symptoms were not
attributable to the Accident because the onset of the symptoms did not occur
until one month after the Accident. If an acute injury to the elbow had
occurred in the Accident, it was Dr. Leith’s opinion that it would have
been immediately apparent in the first 24 to 48 hours following the Accident.
Any such pain beyond that period of time was unlikely to be related to the Accident.
Furthermore, Dr. Leith noted that when Dr. McKenzie first assessed
the plaintiff, the pain to the left elbow was on the lateral side, and during
the January 20 assessment it was located medially and that this variation is
not consistent with an acute injury resulting from the Accident.

[105]     In summary, none of the documents that Dr. Leith reviewed in
the July 15, 2008 report altered his opinion from his November 2005 report.

[106]     In his June 25, 2009 updated medical legal evaluation, Dr. Leith
noted that the plaintiff had improved to a certain degree following his
surgery, but still had AC joint pain and supraspinatus pain. Dr. Leith’s
opinion, however, had not changed since his earlier reports that the plaintiff
sustained soft tissue injuries to the cervical and paracervical musculature,
from which the plaintiff had fully recovered as of Dr. Leith’s initial
evaluation performed on October 21, 2005. The plaintiff also sustained a low
grade sprain to the left AC joint which underwent a distal clavicle excision in
February 2008, which had not provided complete relief of the plaintiff’s
symptoms.

[107]     Dr. Leith further noted that the plaintiff had a recurrence of
his symptoms to both the neck and left shoulder region secondary to a change in
employment, because he was spending more time sitting at the computer and the
prolonged posture resulted in further neck pain and some shoulder girdle pain. In
Dr. Leith’s opinion, the plaintiff’s current neck symptoms are not the
result of the Accident since the plaintiff had complete resolution of these
symptoms four years earlier. In Dr. Leith’s opinion, the current neck and
shoulder symptoms are directly related to the plaintiff’s new self-employment
and increased work load.

[108]     Dr. Leith’s prognosis for the injuries sustained as a result of
the Accident remains excellent. Dr. Leith noted that there was no
objective medical evidence that would preclude the plaintiff from being able to
perform activities of his employment, recreation or household duties. The
limitations to any of these activities are related to his subjective complaints
of pain, which Dr. Leith attributed to the plaintiff’s increase in
workload rather than the Accident. Dr. Leith reiterated that a low grade AC
sprain does not usually result in symptoms of a prolonged nature for such
duration. Dr. Leith concluded that clinically he could not explain the
reason for the plaintiff’s ongoing complaints.

[109]     He testified that the plaintiff’s injuries were minor, it was not a
major disruption to the overall function of the shoulder and that physically
the plaintiff should be able to do everything.

[110]     Dr. Leith stated that he could not offer any surgical treatment
recommendations and would not consider further surgery for the plaintiff. However,
he suggested that the plaintiff would potentially benefit from a pain program
assessment and non-surgical modalities to treat the plaintiff’s current
symptoms.

[111]     In his report of October 22, 2009, based on a review of the serial
images, Dr. Leith opined that a new injury occurred after May 2004, when
the radiology reports showed no injury and before December 2004, where the
images showed an injury involving a comminuted displaced fracture of the distal
clavicle. At trial, the time frame was narrowed to the period between May 13
and August 22, 2004.  Dr. Leith’s evidence was that this type of injury
“required forces that were significant enough to result in a fracture”. Grade
two AC sprains do not spontaneously fracture several months following the
sprain. Most grade two sprains of the AC joint recover after approximately 8-12
weeks without consequence. A distal clavicle fracture is a more significant
injury than a grade two sprain and usually occurs with a direct blow over the
region of the distal clavicle or from a fall resulting in a direct blow. Furthermore,
the expected symptoms following a fracture of the distal clavicle are usually
more significant than those expected following a grade two AC sprain and
therefore the presence of the fracture explains the fact that the severity of
the plaintiff’s symptoms do not match a simple grade two AC separation. It was Dr. Leith’s
opinion that the plaintiff’s current symptoms were secondary to the fracture of
the distal clavicle which occurred after the Accident.

[112]     He testified at trial that the AC symptoms would likely have been
healed around the time the plaintiff sustained the fracture so his symptoms
thereafter would be secondary to the fracture not the AC sprain.

[113]     Dr. Leith concluded by noting that the most recent MRI showed a
residual fragment of bone that he opined was likely the source of ongoing pain
to the left AC joint region. He suggested that this could potentially improve
with a formal surgical removal of the ununited bone fragment, but he had no
further recommendations for treatment.

[114]     Dr. Leith testified concerning the CT scan of December 15, 2009.
He notes that because surgery had occurred prior to the CT scan, unlike some of
the other scans, a lot of the changes would be secondary to the surgery, not
the result of the Accident. Dr. Leith hypothesized as to the origin of a
sizeable bony spur in the superior aspect of the acromion, considering that it
might be dystrophic ossification, the development of a bone spur post-surgery,
calcification related to aging, or the same fragment that was visualized in
December 2004, but that there was nothing to indicate that there had been a
fracture there. Dr. Leith explained that the surgery would leave the bone exposed
and the body’s response to bleeding would be to form scar tissue and bone, or spurring.
He commented that healing bone does not form nice margins. Dr. Leith
testified that the reason that the CT scan did not show the bone fragments that
he earlier attributed to the fracture is because when you do a distal clavicle
surgery, you remove approximately one centimetre of the clavicle, so the
subsequent CT scan would not show any sign of the previous fracture noted on
the x-rays.

[115]     Dr. Leith did not recommend surgery unless the pain was focused
to the area of the bony spur, which is not the case with the plaintiff. He
testified that everything else had healed.

Dr. Spielmann

[116]     Dr. Spielmann, who specializes in diagnostic radiology,
testified at trial that she disagreed that there was a fracture of the distal
clavicle. Dr. Spielmann examined x-rays dated April 9, May 13, and August
22, 2004 and December 15, 2009 and noted the presence of a coracoid fracture on
the April 9, 2004 x-ray which also showed up on the scan of December 15, 2009. She
explained that when the base of the coracoid is fractured, the whole coracoid
is pulled up, which can put stress on the clavicle. The bone then reacts to
this tugging and new bone forms. This is known as heterotropic bone formation
or enthesopathy.

[117]     Dr. Spielmann noted in the August and December 2004 x-rays, the
presence of heterotopic bone formation beneath the end of the clavicle and
other bone above the acromion. Dr. Spielmann noted that the site of the
bone was in line with where there would be stress on the AC joint capsule and
was consistent with the presence of a fracture of the coracoid process. She
explained it was a logical placement of heterotopic bone. She also noted the
absence of a donor site from the clavicle that one would expect to see if the
bone came from a fracture of the clavicle. Dr. Spielmann explained that it
takes bone more than a month to form, and accepted that the time lines based on
the imaging studies fit with the appearance of the bone over the months
following the Accident.

Dr. Hawkins

[118]     Dr. Hawkins was qualified as an orthopaedic specialist with a
practice focus on shoulders for the last 25 years.

[119]     Dr. Hawkins reviewed the x-rays and the CT scan, dated December
15, 2009. Dr. Hawkins identified the coracoid fracture in the April 9, and
May 13, 2004 x-rays as well as the April 22, 2009 x-ray and the CT scan. He
also noted a faint density above the acromion which he interpreted to be the
beginning formation of heterotopic bone. He did not detect a fracture of the
distal clavicle. Like Dr. Spielmann, Dr. Hawkins described the
superior displacement of the clavicle as a result of the coracoid fracture,
which would cause tension on the joint capsule. Both doctors agreed that once
the coracoid fracture healed, it would no longer be a source of pain.

[120]     Dr. Hawkins acknowledged that rotator cuff problems were common
in men the plaintiff’s age, however, he attributed the plaintiff’s problems,
which were isolated on the left side, to Accident injuries.

[121]     Dr. Hawkins considered that the plaintiff had sustained a
serious blow in the Accident which caused more injury than a simple AC joint
separation. He derived this from the presence of the coracoid fracture and the
formation of heterotopic bone. He also noted that the injury had caused chronic
AC separation and instability in the AC joint and considered that this
instability, together with the rotator cuff impingement, accounted for the
plaintiff’s ongoing problems.

[122]     It was Dr. Hawkin’s opinion that the AC problem was not
susceptible to treatment. He agreed that the surgery conducted by Dr. McKenzie
was appropriate, although he noted that Dr. McKenzie had not resected much
of the clavicle and there could still be more hitting against the acromion. However,
he stated that another surgery would make no difference and it would not be
worthwhile. He did explain that there was a type of surgery that was designed
to stabilize the clavicle, but it was less effective when dealing with smaller
areas of instability and was of insufficient effect to pursue.

[123]     Dr. Hawkins agreed that exercises would help strengthen and
maintain the rotator cuff and keep the shoulder strong and that an ergonomic
workstation could modestly improve the rotator cuff symptoms.

ANALYSIS

Causation

Nature
and Scope of the Plaintiff’s Injuries

[124]     The plaintiff submits that the main injury he sustained is the second
degree AC joint separation. In addition, the plaintiff suffered from on-going
impingement symptoms and rotator cuff tendonopathy. However, the plaintiff also
experienced problems in the vicinity of the upper left quadrant, consisting of
the left shoulder, arm (elbow), hand, neck, and upper back, immediately
following the Accident. Because of the opinions of Dr. Craig and Dr. Leith,
the plaintiff is not advancing a claim with respect to the left hand and the
plaintiff agrees that the injuries to the left elbow have resolved. The Accident
also caused degenerative changes in the neck to become symptomatic, although
these symptoms have subsided over time.

[125]     The plaintiff has difficulty with prolonged sitting or standing,
repetitive use of the left shoulder, lifting with his left shoulder, and
repetitive neck bending or twisting.

[126]     Furthermore, the plaintiff continues to have trouble sleeping, often
waking up due to throbbing pain in his shoulder.

[127]     With respect to his psychological injuries, the plaintiff described
having flashbacks for four to five months after the Accident and for five to
six months after the Accident, he was not able to travel on the highway. The
plaintiff continues to have lingering issues about driving on the highway and
being a passenger in a vehicle on a highway.

[128]     The defendant accepts that immediately following the Accident, the
plaintiff was diagnosed with a left AC sprain. This sprain was categorized as a
grade 2 and therefore was a less significant strain. The defendant points to
the opinion of Dr. Leith that grade 2 AC separations usually heal and
rarely cause symptoms requiring surgical intervention and therefore the extent
of the plaintiff’s injuries is not so severe. In addition and with respect to
the plaintiff’s complaint of left elbow and left wrist symptoms which developed
later in time and have essentially resolved, based on the opinion of Dr. Leith,
the defendant argues that the left elbow and wrist complaints are unrelated to
the Accident.

Intervening
Fracture

[129]     The defendant asserts that the radiographic evidence suggests that
an intervening event occurred. The defendant submits that the plaintiff
sustained a left clavicular fracture between May and December 2004, and this
injury provides an explanation for the plaintiff’s prolonged symptoms which led
to surgery in February 2008 and his ongoing symptoms. The December 15, 2004
x-rays show a comminuted fracture of the left distal end of the clavicle which
did not show up on either the April or the May 2004 x-rays.

[130]     Dr. Leith was of the opinion that a comminuted fracture of the
left distal end of the clavicle is apparent on the December 15, 2004 x-rays. This
opinion is consistent with the radiologist, Dr. Wong’s findings as
reported on the December 15, 2004 x-ray report, where he noted that “a small
bone fragment adjacent to the acromion is seen”. These findings are in keeping
with a fracture with mild shoulder separation.

[131]     In addition, the defendant points to the December 15, 2004 radiology
report which under “history” indicates that a “prior fall with clavicular
fracture” was the reason for the x-ray referral from the family physician, Dr. Gill.
However, the affidavit of Dr. Gill dated January 14, 2010, and his
attached notes, show that there is no reference to a fall in the chart notes
and the plaintiff never mentioned a fall. Dr. Gill explained that his
chart notes are done contemporaneously with the plaintiff’s visit while the
x-ray requisitions are completed at the end of the day. He admitted that any
reference to a fall and a clavicular fracture in the x-ray requisition was his
error. It was also Dr. McKenzie’s opinion that there was no fracture.

[132]     The defendant asserts that Dr. McKenzie did not have the
opportunity to review the actual December 15, 2004 radiographs, either before
his surgery or before giving his evidence. Neither was he informed of the
clavicular fracture by the plaintiff. As a result, Dr. McKenzie was
unaware that the plaintiff had sustained a comminuted fracture of the left
distal clavicle when he performed arthroscopic surgery of the left shoulder on
February 25, 2008.

[133]     It is the plaintiff’s position that what Dr. Leith interprets
as a displaced fracture of the distal clavicle is instead evidence of
heterotopic bone formation as a result of injuries sustained in the Accident,
which included a fracture at the base of the coracoid process.

[134]     Dr. Gill’s medical-legal report refers to the presence of a
bone fragment adjacent to the acromion which is in keeping with a fracture with
mild shoulder separation. With respect to the discrepancy between the x-ray
taken at the time of the Accident and the later x-rays, Dr. Gill explained
at trial that the first x-ray did not show enough and was a poor view and
therefore he could not say with any assertion that there was any change between
the two x-rays. He also explained that you may only see a fracture once
calcification (healing) has started to occur; so the fracture may have been
there earlier and just not been visible. It was Dr. Gill’s opinion that regardless
of the mechanics of the injury, it was associated with the Accident.

[135]     In reply to Dr. Leith’s opinions concerning an intervening
fracture of the distal clavicle, Dr. Spielmann testified that in her
opinion, the plaintiff sustained an AC joint separation and a fracture at the
base of the coracoid process in the April 2004 Accident and that the bone
fragments that were visualized in the August and December 2004 x-rays were
heterotopic bone formation.

[136]     The plaintiff submits that there is no evidence of significant
trauma over the period of May to August, 2004.

[137]     A review of Ms. Aldrich’s records discloses that she saw the
plaintiff on 35 occasions over the period May 5 to September 2, 2004,
during which time the plaintiff never reported a fall or any other injury apart
from the Accident. Ms. Aldrich testified that the plaintiff absolutely
would have reported a fall had one occurred.

[138]     The hospital records from Eagle Ridge Emergency Department dated
August 22, 2004, relate the injury to the Accident of April 2004. The
Initial Assessment Record states “#L clavicle x 4 months as a result of mva”.

[139]     There is no reference in any of the medical records to any falls. There
is also no evidence that the plaintiff ever reported a fall or any other
intervening event to his doctors, physiotherapist or any of his friends, nor
did he attend at any hospital or clinic. Given that a fracture would require
significant trauma, it is unlikely that this occurred and the plaintiff failed
to acknowledge it to any of his treating physicians at the time.

[140]     I found the plaintiff to be a credible witness. It is my view
that there was no intervening event which complicated the plaintiff’s injury to
the distal clavicle. While there are inconsistencies in the medical findings, I
do not believe the plaintiff was being untruthful when he said that he did not
hurt himself between the date of the Accident in April and the subsequent x-ray
in August. I therefore conclude that there was no intervening event.

[141]     I accept the evidence of Drs. Spielmann and Hawkins that the bone
fragments that were visualized in the August and December 2004 x-rays were more
likely to be heterotopic bone formation.

Post-Surgery
Symptoms

[142]     With respect to causation, the defendant has also argued that, two
months following the surgery the plaintiff reported significant improvement and
had good range of motion. It was not until March 2009, more than a year after
surgery, at a time when the plaintiff was working full time at Shefield as well
as on a project to make posters for the Mercy Touch Ministry that he complained
of a resurgence of the left shoulder pain. The project was not related to his
employment at Shefield and therefore entailed further hours of work each week
in the evenings and on weekends. The plaintiff’s evidence was that he spent
between 10 and 20 hours on each of the two posters working mainly over the
weekends. It is the defendant’s position that the resurgence of pain was caused
by the plaintiff’s significantly increased workload which he says is supported
by the evidence of Dr. Leith.

[143]     I accept the evidence of Dr. McKenzie who testified that, while
it was possible that the rotator cuff injury was aggravated by working long
hours, the plaintiff was pre-disposed to this aggravation as a result of the
injury to the area and the resulting surgery, both of which are attributable to
the Accident.

Pre-existing
Condition

[144]     Finally, the defendant argues that the plaintiff had pre-existing
degenerative disc disease in his neck, which was intermittently symptomatic for
which the defendant should not be liable.

[145]     It is well accepted that a plaintiff is not to be put in a better
position, but rather is to be placed in the position they would have been in
absent the defendant’s negligence: Athey v. Leonati, [1996] 3 S.C.R. 458,
140 D.L.R. (4^th) 235. In Athey, the Court recognized that
pre-existing conditions are inherent in a plaintiff’s original position and
defendants are not liable to compensate a plaintiff for any debilitating
effects which the plaintiff would have experienced in any event.

[146]     Nor are defendants liable for injuries and symptoms their negligence
did not cause. In T.W.N.A. v. Canada
(Ministry of Indian Affairs), 2003 BCCA 670 at para. 30,
235 D.L.R. (4^th) 13, the Court stated that in determining whether
the accident caused the injury being complained of, a court must consider both
dormant and active pre-existing conditions in assessing the plaintiff’s
original position.

[147]     The defendant points to Hart v. Texmo, 2003 BCSC 1092, where
the plaintiff had a progressively degenerating disc disease with only minimal
symptoms before the motor vehicle accident but he argued that the accident
aggravated the condition. The Court disagreed and held that the plaintiff’s
back pain would have occurred despite the accident.

[148]     The defendant submits that the plaintiff’s neck pain would have
continued to evolve and become increasingly symptomatic regardless of the
Accident.

[149]     The defendant submits that the risk of harm does not need to be
proven on a balance of probabilities, which is a standard appropriate in
determining past not future events: Zacharias v. Leys, 2005 BCCA 560 at para. 16.
Instead, future events are simply given weight according to the probability of
their occurrences.

[150]     I note that Dr. Craig, Dr. McKenzie and Dr. Gill all
acknowledged the plaintiff’s pre-existing degenerative changes, however they
all attributed the onset of the symptoms to the injuries sustained in the
Accident. It was only Dr. Leith who was of the opinion that the ongoing
neck pain was related to pre-existing degenerative changes and were unrelated to
the Accident.

[151]     There is no question that the plaintiff had pre-existing
degenerative changes in his cervical spine prior to the Accident, however those
changes were asymptomatic. The defendant has failed to demonstrate that they
would probably have become symptomatic, in any event of the Accident.

[152]      There will be no reduction in the award for the pre-existing
asymptomatic degenerative changes in the plaintiff’s cervical spine because the
weight of the medical evidence is that the Accident substantially accelerated
and rendered symptomatic that degeneration.

[153]     In any event, the plaintiff’s neck pain is a small part of his
ongoing complaints.

Causation
Conclusion

I find that the plaintiff sustained
injuries to his neck, left shoulder and left arm as a result of the Accident. While
most of the injuries have resolved, the plaintiff continues to suffer pain and
limitations with respect to his left shoulder. Various areas of the left
shoulder have been implicated, including the AC joint, rotator cuff, and
coracoid process. Although there was great confusion in the medical
evidence about the mechanics of the injury to the plaintiff’s shoulder,
whatever the mechanism of the injury, and in light of my finding that there was
no intervening event, I am satisfied on a balance of probabilities that the
ongoing symptoms in the plaintiff’s left shoulder were caused by the April 2004
Accident.

[154]     None of the medical experts gave a positive prognosis of recovery or
even improvement, and none could suggest further intervention or treatment that
could contribute to a better prognosis for recovery. The plaintiff will,
therefore, continue to face limitations and disabling symptoms related to pain
in his left shoulder as a result of the Accident.

Failure
to Mitigate

[155]     “[A] plaintiff cannot recover from the defendant damages which he
himself could have avoided by the taking of reasonable steps.”: Janiak v.
Ippolito, [1985] 1 S.C.R. 146 at para. 36, 16 D.L.R. (4th) 1. The onus is on a defendant to
prove that a plaintiff has failed to mitigate and to further prove that such
failure has increased the plaintiff’s losses.

[156]     Since the Accident, the plaintiff has made consistent and credible
efforts to recover from his injuries. Immediately following the Accident, he
attended physiotherapy and followed through on the directed exercises. He took
the medication that was prescribed. He even tried a new physiotherapist
following his first IME appointment with Dr. Leith. He returned to Eagle
Ridge on each of the subsequent physiotherapy re-referrals made by Dr. Gill
and after discharge he continued his exercises on a daily basis. Although
hesitant about the procedures, he ultimately underwent two injections, surgery,
and a third injection.

[157]     The medical evidence relating to surgery was that it was considered
optional and potentially helpful. There has been no medical opinion that the
surgery, as performed by Dr. McKenzie, should not have been undertaken. The
medical evidence was unclear as to when a decision to undergo surgery should be
made.

[158]     The process leading to the plaintiff’s decision to undergo surgery
was logical. The plaintiff is a cautious individual. He hoped surgery would not
be necessary. However, when his shoulder pain did not improve and attempts to
work only increased his pain, he scheduled an appointment to talk with Dr. McKenzie
in January 2008. Even then, he was only willing to undergo surgery if Dr. McKenzie
performed the operation. Once the decision to operate was made, he underwent
private surgery in February 2008.

[159]     I am satisfied that the plaintiff made credible efforts to recover
from his injuries, was diligent in attending physiotherapy, followed his doctors’
advice to undergo surgery and did not delay in his decision. He spent an
appropriate amount of time considering the pros and cons of surgery. I find
that the defendant did not prove on a balance of probabilities that the
plaintiff failed to mitigate the effects of his physical injuries.

Non-Pecuniary
Damages

[160]    
The purpose of non-pecuniary damages is to
compensate the plaintiff for losses such as pain, suffering, disability,
inconvenience and loss of enjoyment of life from the time of the Accident for
as long as such losses will likely continue. In Stapley v. Hejslet, 2006
BCCA 34 at para. 45, 263 D.L.R. (4^th) 19, the majority of the
Court of Appeal emphasized that:

… 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. … An award will vary
in each case ‘to meet the specific circumstances of the individual case’.

[161]     The Accident has impacted the plaintiff’s life profoundly. In the months
immediately following the Accident, the plaintiff experienced flashbacks,
intense pain and had difficulty sleeping. After the acute pain passed, the
plaintiff continued to suffer from increases in pain when working and
difficulty sleeping. To try to redress this, he underwent surgery, which was
frightening for him, and required further rehabilitation. However, in the long
run the surgery was not successful, his pain continued, and his prognosis for
recovery is not good.

[162]     Aside from pain, the plaintiff has experienced a loss of enjoyment
of life. The plaintiff does not travel because it is difficult to carry or
manage his luggage, he no longer engages in many of his recreational
activities, he has experienced a great deal of emotional difficulty and he
continues to restrict situations in which he may find himself a passenger in
another vehicle.

[163]     The plaintiff’s most significant limitation is related to work
because he remains unable to work consistently and for extended periods of time
at a computer and his discomfort and disability are directly proportional to
the amount of time that he spends at the computer or operating a video camera. The
plaintiff enjoyed his work and his career was a source of pride for him. Now
his enjoyment of his work is undermined by his ongoing pain and disability.

[164]     Based on a review of similar cases, the plaintiff asserts that the
appropriate range for compensation for his non-pecuniary damages is between
$75,000 and $100,000: Prince-Wright v. Copeman, 2005 BCSC 1306 [Prince-Wright];
Kahl v. Jakobsson, 2006 BCSC 1163 [Kahl]; Schnare v. Roberts,
2009 BCSC 397; Kralik v. Mt. Seymour Resorts Ltd. et al., 2007 BCSC 258,
overruled on other grounds 2008 BCCA 97; Wilson v. Bird, 2008 BCSC 1586;
and Szymanski v. Morin, 2010 BCSC 1.

[165]     The defendant, on the other hand, distinguishes the plaintiff’s
cases, arguing that the injuries involved therein were more severe and instead
suggests that the appropriate range for non-pecuniary damages is between
$35,000 and $60,000 based on a review of what she submits are similar cases: Chan
v. Kao, 2009 BCSC 626; Filsinger v. ICBC, 2009 BCSC 232 [Filsinger];
Stevanovic v. Sin, 2007 BCSC 1797, aff’d 2009 BCCA 1; and Hughes v.
Szanik, 2006 BCSC 267.

[166]     In light of the injuries sustained by the plaintiff in the Accident
and the negative prognoses contained in the medical evidence, I find the
plaintiff is entitled to an award of $75,000 for general damages.

Loss
of Income Earning Capacity

Position
of the Plaintiff

[167]     Given that the plaintiff was in the process of establishing himself
in Canada, the plaintiff advanced both his past and future economic losses using
a loss of earning capacity analysis.

[168]     It is the plaintiff’s position that prior to the Accident the
plaintiff had valuable work-related assets including his intelligence,
extensive experience working with both graphics and videography, management
experience, the ability to develop positive relationships with people, ambition
and passion for artistic expression. However, despite the fact that the
plaintiff still possesses these qualities, his ability to find and maintain
employment has been affected by his physical limitations arising from the
Accident.

[169]     As a result of his injuries, the plaintiff has lost his ability to
work competitively and productively in his area of expertise. He is no longer able
to maintain full-time employment in graphic design or printing or anything else
that requires work at a computer. He is unable to work at a computer without
the need to take extensive and regular breaks to rest his shoulder. It is
unlikely that the plaintiff will find any employed position, part-time or
full-time, involving computer work that would allow him to break for half an
hour to 45 minutes several times a day. With respect to full-time employment,
the plaintiff also cannot consistently work a full eight-hour day. This
eliminates the most important source of income for the plaintiff. As a new
immigrant, it would be much easier for him to secure employment than to start
his own business.

[170]     The plaintiff submits that had the Accident not occurred, he would
have been able to find employment in graphic design. With the benefit of
hindsight and given the evidence of Mr. Abadir concerning the employment
opportunities at Shefield in 2005, the most likely scenario would be that the
plaintiff would have come to work for Shefield, likely sometime in 2005. From
there, it is submitted that the plaintiff would have generated the contacts and
references necessary to move forward with his career as and when opportunities
presented themselves and his income could have increased by 10% or more from
his starting salary.

[171]     If there is a substantial probability that the plaintiff will be
unable to secure and/or maintain employment because of his shoulder pain, the
question turns to how much he could earn in a self-employed capacity. At this
stage, the limitations are not only related to the plaintiff’s capacity to
work, but also to his ability to find work. Productivity considerations are
only part of the equation. The plaintiff is limited in his ability to offer his
services as a videographer since he is unable to hold the camera for more than
a few minutes. This significantly reduces a potential source of income.

[172]     Furthermore, the plaintiff will face significant handicaps and
limitations in his current freelance work. Over the last six years since the Accident,
the plaintiff has had limited opportunity to build a client base. He spent most
of 2004 recovering from acute injuries, he took trips to Egypt in 2006 and
2007, he was off work again following his surgery in 2008, and then in
2008-2009 he attempted, but could not continue, full-time employment.

[173]      In addition, as an immigrant, it will be more difficult for him to
secure contracts than if he had been born in Canada. Mr. Moussa has lost
the competitive advantage he had of being able to work long hours and produce
graphic design work within tight timelines. He now works with significantly
reduced productivity because of the need to take regular, extended breaks and
therefore he will be unable to take on projects that have a tight deadline.

[174]     Finally, if at some point in the future, he develops a sufficient
client base that he can work to capacity, that capacity is reduced because of
the need to take breaks, which limits the overall amount of work he is able to
do at any given time and over the course of his career.

[175]     Mr. Abadir confirmed that deadlines are an ever present reality
in the field of graphic design. An inability to produce work within tight
timelines is a significant handicap. The plaintiff also finds it frustrating to
deal with the interruptions to the creative flow imposed by the need to take
regular breaks and these interruptions further slow his productivity because
after a break he will often need to start from scratch rather than continuing
the development and creative flow of a design. The plaintiff’s evidence in
cross-examination disclosed a productivity rate of approximately 60% when doing
his freelance graphic design work in 2009.

[176]     The plaintiff submits that the foregoing demonstrates he has
suffered a loss of earning capacity and with respect to quantification, his
income earning capacity but for the Accident, must be estimated by looking at
what he had achieved vocationally prior to the Accident and his ongoing efforts
to move ahead in his career after the Accident.

[177]     The plaintiff enjoyed a successful career for over two decades in
companies that had experienced significant growth and were leaders in their
field in Eygpt. The plaintiff was a passionate worker who had great interest in
new developments in technology. He had extensive experience not only in
technologically evolving fields but also in management. His primary reason for
immigrating to Canada was to learn more and improve his skills with better
technology. The plaintiff invested considerable effort and expense to establish
himself in Canada.

[178]     Once in Canada, the plaintiff built a network of contacts within the
Arabic and wider Christian community in the Lower Mainland and took advantage
of every opportunity he could to network, meet people, advertise his abilities
and secure employment.

[179]     For the first several months after the Accident, the plaintiff was
unable to work at all. Although the pain in his left shoulder improved somewhat
in the year following the Accident, it was still very limiting in terms of what
he could do at the computer which brought on pain in his neck and left shoulder.
This led, in the spring of 2005, to the plaintiff’s decision to pursue
self-employment. It offered more flexibility so that he could work at his
computer and take whatever breaks he needed in order to keep the pain level
manageable. The plaintiff applied for a GST registration number, purchased
video camera and related equipment and a Mac computer, and developed a logo for
his company, ACTS Video and Graphics (“ACTS”). From 2005 to 2006 the plaintiff
took many steps towards advancing his career and gaining work. At the same
time, as was his custom, he volunteered his services to various Christian
organizations.

[180]     In 2006, the plaintiff travelled to Egypt. His intention was to
visit family and friends and take a rest. This lasted for a few weeks, but in
December, he found himself assisting a friend with work on an exhibition in
Egypt. Once former clients discovered that he was in Egypt, he got more work
offers. The plaintiff took on jobs within his limitations, taking medication
and breaks as necessary.

[181]     During his second trip to Egypt, the plaintiff was involved in
taping and editing a special project. He required the assistance of someone
else to hold the camera to tape interviews.

[182]     Following surgery in February 2008, and once his rehabilitation at
Eagle Ridge ended on May 16, 2008, the plaintiff commenced work at
Shefield on May 26, 2008, earning a salary of $35,400.

[183]     The plaintiff worked from 8:00 a.m. to 4:30 p.m. with a 15 minute
break every two hours, plus lunch. His job required him to do both computer
work, which made up about 70-75% of his work, with the balance of his time
spent taking orders, packaging and doing other duties.

[184]     Unfortunately for the plaintiff, the benefits of the surgery did not
last and by December 2008 he was gradually experiencing increasing pain in his
left shoulder and was considering leaving the company. He was persuaded to stay
until March.

[185]     Since May 2009, the plaintiff has worked from his home developing
ACTS. Because of his ongoing pain he has to take frequent breaks from the
computer which reduces his productivity. Since the Accident, the plaintiff has
been forced to live off his savings, which are now depleted.

[186]     The plaintiff was described by his employers as a “first class”
employee. He was well trained, had an extremely strong work ethic, accepted
criticisms freely, was well disciplined and exceeded expectations. While the
plaintiff’s fluency in the English language was sometimes limiting, the plaintiff
more than made up for this shortcoming with the other qualities he brought to
the workplace. His employers were pleased with his work and wished him to stay
on at Shefield.

[187]     However, it is the plaintiff’s position that the Accident injuries
have had and continue to have a substantial impact on his ability to work.

Position
of the Defendant

[188]     The defendant disputes that the Accident injuries are the only
limitations faced by the plaintiff in obtaining employment and argues a
different characterization of the plaintiff’s employment history and prospects.
The defendant points to the fact that the plaintiff has no formal training in
graphic design and has learned mostly from hands on experience. With respect to
videography, this is a small component of his occupational work and is done
mostly on a volunteer basis for Christian ministries and his only formal
training in videography was a certificate course, which is not the equivalent
of a college or technical diploma. The defendant’s position is that Canadian
job pre-requisites for videography and graphic design require formal
certification.

[189]     The plaintiff came to Canada in 2002 and by 2004, at the time of the
Accident, he had not yet secured any steady paid employment. In May 2005,erehe
plaintiff incorporated ACTS, which allowed him several tax advantages,
including the ability to write off portions of his rent and travel. However,
after setting up this business, for the most part, the plaintiff did volunteer
work and earned little income, until he returned to Egypt in 2007 when he
worked on a video for the United Nations and did videography, editing and
graphic work.

[190]     It was not until May 2008, that the plaintiff secured his first
offer for full-time work in Canada with Shefield, which he obtained through  Mr. Abadir.
The plaintiff’s position there was as marketing coordinator and therefore was
not in his chosen field of interest. The defendant also points out that this
position did not allow for latitude in his work hours and required a
significant commute, from Port Moody to Abbotsford, each work day.

[191]     The plaintiff gave formal notice at the end of March 2009. With the
exception of Mr. Abadir, none of the plaintiff’s co-workers or supervisors
was aware of the plaintiff being in any discomfort. At no point did the
plaintiff advise his employers of any disability, nor did he seek any
accommodation, such as ergonomic changes to his office, any time off work to
rest, or any alternative strategy to deal with his long commute. He did not
seek medical help to deal with his symptoms, prior to leaving his employment.

Failure
to Mitigate

[192]    
A central issue to the question of loss of
earning capacity is whether the plaintiff left Shefield because of religious
conviction rather than because he was unable to continue due to pain in his
left shoulder. The defendant argues that the plaintiff chose to leave Shefield
because of a desire to pursue Christian ministry work and as such failed to
mitigate his loss of earning damages. In support of this the defendant points
to Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.) at 59, where the
Court stated:

A plaintiff is
not entitled at the cost of the defendant to say, “The only work I like is such
and such. I cannot do that. Therefore, you must give me sufficient capital to
replace the income I cannot earn on that sort of job.”

[193]     The plaintiff left his paying job during a period of economic
recession to pursue the line of work he desired without any paying contracts
lined up and as such failed to mitigate his losses.

[194]     In support of the argument that the plaintiff did not leave as a
result of his injuries, the defendants point to the fact that Mr. Abadir’s
understanding was that the plaintiff left Shefield because he wanted to pursue
God’s work.

[195]     The defendant further argued that the plaintiff’s job at Shefield
was not one he enjoyed because it did not tap his skills. The plaintiff
however, disputes this and testified that he enjoyed working there because he
had been able to do both graphic design and video editing work.

[196]     In addition, the defendant argued the position did not allow for
latitude in his work hours since the plaintiff had rigid hours from 8:00 a.m.
to 4:30 p.m. Finally, his job required a significant commute from Port Moody to
Abbotsford each day which he found onerous.

[197]     Apart from the plaintiff’s own evidence that he left Shefield
because of shoulder pain and medical records supporting the recurrence of
shoulder pain, the plaintiff argues there are several considerations that
militate against such a view.

[198]     The plaintiff had come to Canada with the express purpose of
advancing his career and to take advantage of superior technology available in
Canada, not to do charity. While the plaintiff did take work with various
charities and through the church, he commented that he was trying to open
doors, and that the church was only one avenue to market. The plaintiff’s
finances simply did not allow him the luxury of leaving a well-paying job
without other employment. In the past, the plaintiff had worked full-time while
doing his volunteer work. There was no evidence to suggest that the plaintiff
ever considered service in the Christian ministry as an alternative to
employment, nor was anyone he worked with in the ministry under the impression
that he was prepared to leave his paying job to work full-time for the ministry.

[199]     In the alternative, the defendant argued that if the plaintiff did
in fact leave as a result of his injuries, the plaintiff did not seek any
accommodation at Shefield, nor did he seek the advice of Dr. Gill or Dr. McKenzie
about any adjustments he could make to be able to keep working.

[200]     In fact, it was not until June 2009 that the plaintiff sought advice
of an occupational therapist, who then made adjustments to his home office. The
defendant argues the plaintiff’s failure to seek accommodation from Shefield
represents a failure to mitigate his losses. The defendant points to Filsinger,
where the Court, at paras. 75 and 76, reduced the plaintiff’s loss of
income award due to the plaintiff’s failure to work hard enough in trying to
arrange with his employer some minimum accommodation that would have been
adequate both in terms of his capacity and the needs of the employer.

[201]     Ron Muller, the merchandising manager at Shefield testified. In his
opinion, the plaintiff was superior to anyone else they had hired in that
position. Mr. Muller had no problems with the plaintiff’s work product or
his injuries interfering with his work product. He testified the plaintiff’s
position at Shefield was one where he had to be on hand, available at the
office. However, he understood that the company would probably have
accommodated his disability within the confines of the organization.

[202]     But the plaintiff asserts that it is apparent from Mr. Muller’s
evidence that there was limited scope for accommodation at Shefield. He cited
as an example a situation where a previous employee who had become pregnant had
sought reduced hours or a work sharing arrangement and she had not been
accommodated. In cross-examination, Mr. Muller explained that the
plaintiff’s position did not allow for much flexibility.

[203]     Finally, even if the plaintiff left because of his injuries and even
if he could not be accommodated at Shefield, there is still a duty on the
plaintiff to mitigate his damages by seeking, if at all possible, a line of
work that can be pursued in spite of his injuries. The plaintiff is not
entitled to compensation based solely on the type of work he was performing at
the time of the Accident: Parypa v. Wickware, 1999 BCCA 88 at para. 67,169
D.L.R. (4^th) 661.

[204]      The plaintiff must prove on a balance of probabilities that he has
pursued other lines of work or retraining to be able to mitigate his losses. The
plaintiff has not done so and continues to only pursue graphic and video work.

[205]     The plaintiff is very passionate about his graphic design work,
video work and volunteer work with Christian ministries, passions that were not
being fulfilled by his work at Shefield. I find that this, in conjunction with
the lack of flexibility in his work schedule and the long commute, were the
reasons that the plaintiff left his employment at Shefield.

[206]     I am also satisfied that the plaintiff did nothing to try to
accommodate his injuries within his position at Shefield. The plaintiff was a
valued employee and it is my view that Shefield would have done its best to
accommodate his needs.

[207]      Finally, he has not pursued any other lines of work that are compatible
with his injuries, and as such has failed to mitigate his loss of income.

Past Loss
of Income

[208]     The plaintiff’s position, in light of the fact that he was still
establishing himself in Canada, is that but for the Accident, he likely would
have commenced full-time employment in 2005.

[209]     The plaintiff’s annual income in his job at Shefield was $35,400. Mr. Abadir
testified that entry level income would be between $35,000 and $45,000 and the
plaintiff’s replacement is currently being paid over $40,000. Mr. Abadir
further testified that the range for experienced graphic designers was $40,000
to $80,000, with the average being $60,000. This number most likely applies to
designers who, like him, are established in the field.

[210]     Based on the report dated May 21, 2009, prepared by William Stanus,
a Vocational Rehabilitation Consultant, these numbers fit with statistics in BC
for full-time/full-year earnings for male Graphic Arts Technicians in BC in
2007 dollars, which was $44,000 with average hourly earnings of $18.23 and a
range of $11 to $31.

[211]     The figures for income earned by Graphic Designers and Illustrators
were similar, at $44,500, with average hourly earnings of $20.58 and a range
from $11 to $44.

[212]     Income earned by videographers was higher, with full-time/full-year
income averaging $47,550.

[213]     These estimates are calculated using the National Occupation
Classification, (NOC) which also contains employment requirements.

[214]     In cross-examination, Mr. Stanus agreed that for film and
camera operators, completion of a college or technical program in broadcasting,
audiovisual technology or a related field and experience as a camera assistant are
usually required. With respect to graphic designers and illustrators, the
employment requirements include a university degree in visual arts with
specialization in graphic design, commercial art, graphic communications or
cartooning or completion of a college diploma in graphic arts. Training in
multimedia design from a post-secondary college or technical institute may be
required.

[215]     In re-examination, however, he clarified that the NOC is a
generalization and there are differences with respect to the stringency of the
requirements across professions. Mr. Stanus further testified that he did
not meet with the plaintiff and complete a full vocational assessment of him,
so he could not testify specifically to the wage that would be applicable to
his situation.

[216]     Mr. Abadir, who works in the same field and also came from
Egypt, with fewer credentials than the plaintiff, testified that the plaintiff
would have no difficulty securing employment. While a certificate of formal
training in graphic design or videography would assist the plaintiff in
obtaining employment, creative skill can land a job without formal
qualifications. As an employer, he puts more emphasis on skill than
qualification.

[217]     At the time of the Accident, the plaintiff was a new immigrant to
Canada and the plaintiff concedes that this would likely reduce his income
temporarily. To reflect this factor, the potential earnings over the years 2004
to 2007 in the table below are lower than the average earnings for graphic
designers. Once employed, the plaintiff submits that his qualities would have
become evident and his earnings would have quickly risen to reflect the value
of his services.

[218]     The plaintiff’s claim for loss of income earning capacity for past
income is estimated at between $180,000 and $220,000. The plaintiff’s actual
post-accident earnings and his estimated potential earnings over the same
period of time show a difference of $190,850.00 and are summarized as follows:

[219]     The lost earning capacity claim relating to past pecuniary loss must
be calculated on a net of tax basis. The plaintiff is prepared to either
discount this claim (using the above table, to $150,000) to account for the
impact of taxation, or to seek agreement with counsel for the defendant
concerning the impact of taxation, based on the findings of the Court.

[220]     The defendant submits that the plaintiff’s loss of opportunity to
earn income as it relates to his injuries from the Accident, would be 8 to 12
weeks’ duration, the period of time Dr. Leith opined was a reasonable
amount of time to lose from work as a result of a grade 2 strain to the AC
joint, complicated by soft tissue injuries to the rotator cuff.

[221]     The plaintiff is able to work a full day and can get six hours of
productive time in 10 hours of work. His occupational therapy has helped him
and he now knows to stand up and take breaks more frequently.

Conclusion
on Past Loss of Income

[222]     The plaintiff was unemployed at the time of the Accident. While the
plaintiff submits that he was actively seeking employment and would have
obtained it as early as 2005 but for the Accident, I note that he still needed
to update his English language skills, something he did following the Accident.

[223]     In addition, I note that he faced other limitations such as a lack
of Canadian qualifications and business connections. While I acknowledge he
worked to obtain connections through his church, I find that this was in
pursuit of the religious work he was committed to.

[224]     In that vein, I note that a job at Shefield opened up in 2005 which
he did not pursue. At the time he was instead doing editing work on a play for
the Rivers of Life Ministry. He also chose to develop his own business rather
than to seek full-time employment.

[225]     Furthermore, the plaintiff took two trips to Egypt where he was able
to do work, also notably in fields he was interested in and passionate about.
Based on the foregoing and in light of my conclusion that the plaintiff left
his only full-time employment in Canada to pursue his passion, I am not
satisfied that the plaintiff has proven a past income loss attributable to the
Accident on a balance of probabilities and thus I decline to make an award
under this head of damages.

Future
Loss of Income Earning Capacity

[226]     In terms of the future, the plaintiff is not competitively
employable in graphic design because of the need to take regular and relatively
extended breaks from his work. With respect to his ability to earn on a
self-employed basis, despite his best efforts, from 2005 to 2009, the plaintiff
was unable to earn more than his expenses until May 2009 when he secured a
contract.

[227]     The statement of income and expenses covering the period May to
September 2009 discloses that over this five-month period, the plaintiff earned
$5,825.61 from the contract, and $1,826.50 from all other sources. His expenses
over this period were $3,628.40 and his net income was $4,024.21. Had the contract
not opened up to him, he would once again have been operating in a deficit
position. When this project comes to an end, he has no established client base
from which to generate an income. Notwithstanding this somewhat bleak prospect,
the plaintiff does continue to plan to look for business opportunities
utilizing his contacts and is hopeful he will obtain similar contracts in the
future.

[228]     The plaintiff submits that his earnings are likely to remain $35,000
to $45,000 less each year than what they would have been had the Accident not
occurred. If his income averages $40,000 less per year than it would have been
had he not been injured, and if it is assumed that, pre-accident, the plaintiff
would only have worked to age 65, the present day cumulative loss, using a
present day multiplier of 2.5%, is $439,328. The plaintiff has testified that
he would like to work as long as he is able. The longer he would have worked,
the greater his losses.

[229]     The plaintiff submits that his loss of income earning capacity
projected into the future is estimated at between $400,000 and $500,000, based
on present day value applying a discount rate of 2.5%.

[230]     The principles governing a loss of income earning capacity are laid
out in many cases.

[231]     The plaintiff points to the BC Court of Appeal decision in Rosvold
v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158. On appeal, in particular the
loss of future earning capacity was increased because the Court felt that the
trial judge had failed to “factor into his analysis the possibilities that Mr. Rosvold’s
proposed business might fail, that it might produce less income than he
anticipated, and that he might not find any alternate source of income”: at para. 16.
It is submitted by the plaintiff that similar considerations apply in the
present case, in that the plaintiff’s overall record for trying to support
himself from 2005 to 2008 is less than promising.

[232]      In Rosvold, the Court affirmed the following four factors
outlined in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) [Brown]:
whether the plaintiff has been rendered less capable overall from earning from
all types of employment; whether the plaintiff is less marketable or attractive
as an employee to potential employers; whether the plaintiff has lost the
ability to take advantage of all job opportunities which might otherwise have
been open to him, had he not been injured; and whether the plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market.

[233]     The plaintiff argues that these principles are particularly
applicable in that his injuries, which have limited his ability to work at the
computer, preclude all types of sedentary employment. He is now relatively
inflexible in terms of the amount of work he can do and he cannot push to meet
deadlines. This makes him less attractive as an employee. Because of his age
and background, he is unsuited to be trained into any other occupation, which
means that the Accident injuries have essentially rendered him competitively
unemployable.

[234]     The plaintiff points to the decisions of Penner v. Silk, 2009
BCSC 1682 and Kahl, where the Court awarded loss of future earning
capacity on the basis that it was more likely than not that the plaintiff would
sustain a loss of income in the future, because of limited options and the
likelihood that the plaintiff would be unable to continue to work at the same
level.

[235]     The courts have recognized losses sustained by plaintiffs who have
shown real aptitude for a particular vocation, who have developed specific skills
in their respective careers before their injuries and showed real potential: Djukic
v. Hahn, 2006 BCSC 154, aff’d 2007 BCCA 203; Prince-Wright; Towson
v. Bergman, 2009 BCSC 143, and Roussin v. Bouzenad, 2005 BCSC 1719.

[236]     In Djukic, the Court measured the loss of income earning
capacity in relation to the skill the plaintiff had acquired, rather than
applying a statistical contingency for an average woman with a high school
diploma.

[237]     In Prince-Wright, the Court recognized that a plaintiff who
had demonstrated success in her career, had the potential to have continued to
progress in her career had the Accident not occurred. In that case, the
plaintiff had already established herself in her field. In this case, the
Accident occurred before the plaintiff had an opportunity to establish himself
and develop a network of business contacts in Canada, which in the plaintiff’s
submission makes the impact of the Accident that much more significant.

[238]     The defendant argues that the cases put forward by the plaintiff are
easily distinguishable on their respective facts. In those cases, the
plaintiffs had already demonstrated an ability to make their business
successful, whereas the plaintiff in this case had been in Canada for two years
and remained unemployed at the time of the Accident.

[239]     While the plaintiff has been successful in Egypt, regrettably this
has not translated into success in Canada. The defendant submits that the
plaintiff’s difficulty in obtaining work also reflects his status as a recent
immigrant without Canadian educational credentials, together with his
preference to be involved with Christian ministry work which does not pay well,
if at all.

[240]     The plaintiff was able to carry out work as a graphic designer,
videographer, and video editor both before and after the shoulder surgery. He
can work a full day with up to six hours productive time, over a period of up
to 10 hours, with a preference for flexible hours and minimal commuting.

[241]     Dr. Hawkins testified that the plaintiff is limited in his
ability to perform repetitive overhead and crossbody activities, which the
defendant submits is a modest limitation. The plaintiff’s vocational disability
therefore at present is primarily in holding his video camera. However, graphic
design, video filming with a tripod and video editing can all be carried out
full-time with breaks, occasional ibuprofen and implementation of ergonomic
recommendations.

[242]     The defendant therefore submits that the plaintiff’s economic loss
is limited to a loss of opportunity to earn income in the videographic work
where he must hold a video camera on his right shoulder and focus with his left
hand. The defendant submits that by and large the complaints that affected the
plaintiff’s productivity may have ameliorated somewhat by the use of ergonomic office
design and time management, as suggested by the occupational therapist.

[243]     The defendant notes that none of the physicians testified that the
plaintiff is unable or ought not to return to work and at best Dr. Hawkins
testified that the plaintiff would suffer mild discomfort. The defendant’s
position is that the plaintiff is not disabled from working due to the Accident
even if he has symptoms that are ongoing and that he instead elected to leave
the only full-time employment he could find because it was not the kind of
graphic design work he desired to be doing nor was it the religious work he was
interested in doing.

[244]     It is the plaintiff’s position that he was seeking secular work to
advance his career. His motivation vis-à-vis charities represented his desire
to network, demonstrate his graphic design abilities for possible remunerative
work, and a desire to contribute to a good cause. The plaintiff submits that
there is no evidence that he ever turned down any opportunity to work for pay
in favour of doing charity.

[245]    
In the event that this Court finds that the
plaintiff provided services to charities instead of, rather than in addition
to, doing his own work, the plaintiff relies on the decision of the Manitoba
Court of Appeal in Turenne v. Chung (1962) 36 D.L.R. (2d) 197, 40 W.W.R.
508, where the Court upheld an award of wages to a nun who had donated her
income to the religious order to which she belonged. The Court wrote at 197-198:

Concerning the
special damages, the only item in dispute is an allowance of $3,700
representing one year’s loss of pay, which the plaintiff would have earned in
her profession as a teacher. This award is challenged on the ground that
plaintiff, who is a teaching sister of a religious order, had directed that her
salary be paid to the order, from which order she received her board, room, and
other maintenance. Counsel for the defendants contends that she suffered no
personal loss. We cannot accept this contention, for it is basic that a
person may do what he wishes with his earnings, and plaintiff could, as she
voluntarily did, direct that her salary go for the benefit of the order. It
would be wrong to permit the defendant tortfeasors to invoke this arrangement
for the purpose of reducing their own liability.

[246]     At trial, the defendant raised the issue of employment rates among
immigrants. While economic evidence was not adduced, the issue of assessing the
plaintiff’s income earning potential in light of his status as an immigrant may
remain.

[247]    
In Damages, Estimating Pecuniary Loss, Vol.
1 (Aurora: Canada Law Book, December 2009) author Cara L. Brown wrote, at 1- 7:

The most
important starting point for any forensic economist is to review the
plaintiff’s employment and education history. It will be this history which
determines the benchmark salary…. In most cases, information about past
earnings and earnings growth specific to the plaintiff is a more accurate
predictor of that person’s future earnings than general information about the
earnings of a population group…

[248]     It is the plaintiff’s position that the immigration factor is
largely answered by the probability that the plaintiff would have started to
work at Shefield in 2005, when, as Mr. Abadir testified, the position of
Marketing Coordinator opened up. Even if this had not occurred at that time,
the plaintiff’s work experience at Shefield provides an indication of the
positive impact he would have made as soon as he was able to secure his first
employment position.

[249]     In other words, immigrant status is only one of many factors that
determine a person’s employability. The plaintiff’s personal employment
qualities and his dedication to producing quality work, sooner or later, would
have been recognized and rewarded.

[250]     Against a possible negative contingency relating to the plaintiff’s immigrant
status the plaintiff submits this Court can weigh a positive contingency
relating to the plaintiff’s practice of working at more than one job at a time.
In Egypt, the plaintiff not only worked full-time, he also had his private
clients and he did volunteer work. The loss of income earning capacity claim
outlined above does not take into account earnings which the plaintiff could
have generated by designing logos, brochures, mugs, etc. for private clients in
his free time.

[251]     Consequently, it is submitted that after an initial period when the
plaintiff was adjusting to life in Canada, any negative contingency arising
from his immigrant status should be offset against the positive contingencies
based on his character, previous work practices, his success at Shefield, and Mr. Abadir’s
own success in Canada.

Conclusion
on Future Loss of Income Earning Capacity

[252]     The British Columbia Court of Appeal clarified the principles a court
must consider in determining awards for loss of future earning capacity in Perren
v. Lalari, 2010 BCCA 140. Madam Justice Garson, speaking for a unanimous
Court, had the following to say, at para. 32:

[32]   A plaintiff must always prove,
as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, that there is a real and
substantial possibility of a future event leading to an income loss. If
the plaintiff discharges that burden of proof, then depending upon the facts of
the case, the plaintiff may prove the quantification of that loss of earning
capacity, either on an earnings approach, as in Steenblok, or a capital
asset approach, as in Brown. The former approach will be more useful
when the loss is more easily measurable, as it was in Steenblok. The
latter approach will be more useful when the loss is not as easily measurable,
as in Pallos and Romanchych. A plaintiff may indeed be able to
prove that there is a substantial possibility of a future loss of income
despite having returned to his or her usual employment. That was the case in
both Pallos and Parypa. But, as Donald J.A. said in Steward,
an inability to perform an occupation that is not a realistic alternative
occupation is not proof of a future loss.

[253]     I am satisfied on the whole of the evidence before me in this
matter, that there is a substantial possibility of a future event leading to an
income loss.

[254]     Because the plaintiff was unemployed at the time of the Accident,
the loss is not easily measurable using an earnings approach and thus this
Court must quantify the plaintiff’s loss using a capital asset approach as per Brown.
Because of the ongoing pain in the plaintiff’s shoulder he cannot work at the
same levels of productivity as he did prior to the Accident. Given the negative
prognoses that the plaintiff will ever recover from these injuries I am
satisfied the plaintiff suffers a permanent partial disability that has
rendered him less capable of earning income from all types of employment; less
attractive as a potential employee to new employers; unable to take advantage
of all the job opportunities that were previously open to him; and less
valuable to himself, as a person capable of earning income in a competitive
labour market.

[255]     However, the impact of the Accident injuries on the plaintiff’s
future earning capacity is not likely to be as extensive as the plaintiff
alleged given the negative contingencies in this case. On the whole of the
evidence, in light of these negative contingencies and given the plaintiff’s
failure to mitigate his damages, I award the plaintiff the sum of $50,000 under
this head.

Special
Damages

[256]     The plaintiff’s special damages claim consists of the following:

[257]     The plaintiff submits that it does not matter whether payment of
expenses was actually made by the plaintiff or incurred instead by a third
party. The ultimate test is whether it is reasonable for these expenses to have
been incurred. The Supreme Court of Canada in Andrews v. Grand & Toy
Alberta Ltd., [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452 and Arnold v. Teno,
[1978] 2 S.C.R. 287, 83 D.L.R. (3d) 609, allows a plaintiff a very high
standard of post-accident care. The guiding principle is that “to the extent,
within reason, that money can be used to sustain or improve the mental or
physical health of the injured person it may properly form part of a claim”: Andrews,
at 241-242. Moreover, “[t]he allowability of an expense is not measured by its
ultimate effectiveness, but by the reasonableness of the decision to incur it,
given the surrounding circumstances.”: Kenneth D. Cooper-Stephenson, Personal
Injury Damages in Canada, 2nd ed. (Toronto: Thomson Canada Ltd., 1996) at 166.

[258]     The plaintiff submits that the expenses claimed in this action were
incurred in the plaintiff’s attempt to understand the cause of his ongoing
shoulder pain, to seek advice about treatment, and to secure treatment, all for
the purpose of mitigating his damages and hopefully enabling the plaintiff to
return to productive work. None of these expenses would have been incurred but
for the Accident.

[259]     With respect to the operation, which is the single largest claim,
the defendant takes issue with the fact that the plaintiff chose to undergo
surgery at a private clinic rather than in the public system, thus incurring
unnecessary costs.

[260]     The plaintiff explained, however, that the wait in the public system
would have delayed the surgery. Dr. McKenzie testified that with referrals
and waiting lists, the wait in the public system can stretch for one to two
years. Dr. Gill also confirmed in his testimony that the wait is well over
a year.

[261]     The defendant argues that despite the plaintiff’s claim that the
wait in the public system would be too long, the plaintiff himself delayed for
many years before consenting to the surgery.

[262]     When the plaintiff was first assessed by Dr. McKenzie on
November 24, 2004, Dr. McKenzie opined surgery would be required. It was
not until February of 2008, almost four years after the Accident, and four
years after Dr. McKenzie initially opined  that surgery would likely be
required, that the plaintiff elected to proceed with the surgery. The defendant
submits that the plaintiff’s extended trip to Egypt also delayed the surgery.

[263]     The defendant argues that the procedure could have been performed in
the public system in as soon as six months after a request was made. If the
plaintiff had waited for a time slot in a public funded surgery, he would not
have sustained any progressive degeneration of his left shoulder while waiting.
However, the plaintiff chose to have the surgery performed in a private clinic and
therefore the defendant submits that the plaintiff should accept the cost of
his choice for private care.

[264]     The plaintiff explained that he was very tentative about the surgery
and how long it would take to recover. The plaintiff explained that he had spoken
to Dr. McKenzie at great length about the surgery and so when it came time
for him to book the surgery, he did not want anyone other than Dr. McKenzie
to perform it.

[265]     Finally, the plaintiff points to the fact that it was Dr. McKenzie’s
evidence that most of the surgery in the Ambulatory Surgical Centre was done
for Workers’ Compensation Board (“WCB”) claimants. The plaintiff submits that the
fact that WCB is prepared to pay for the type of private surgery that the
plaintiff also underwent in order to return to work more quickly provides a
standard of reasonableness relevant to this claim.

[266]     While the cost of private care will not be an appropriate special
cost in every case, given the plaintiff’s emotional uncertainty about surgery
and his continuing pain, this is a rare case and I find it reasonable in this
case that the plaintiff chose to pursue private surgery with the doctor that he
trusted and so that he could have his pain relieved immediately. I therefore
award the plaintiff the costs of the surgery.

[267]     In the alternative, the defendant argues, based on the evidence of Dr. Leith,
that surgery was required due to the intervening fracture and therefore the
defendant is not liable for the costs. I have already rejected the possibility
of an intervening event and therefore reject this submission.

[268]     The defendant also takes issue with the cost of the special referral
to see Dr. Hawkins. The plaintiff testified in cross-examination that he
did not ask Dr. Gill for a referral. Had he done so, a referral from his
general practitioner would have meant that the cost would have been covered.

[269]     I agree with the defendant that the plaintiff could have gotten a
referral from Dr. Gill at no expense and thus I find this to be an
unnecessary cost for which the defendant is not liable.

[270]     The defendant also takes issue with the LCD monitor, which she
submits would have been required regardless of the Accident due to the
plaintiff’s pre-existing cervical degenerative disc disease, and with the chair
with low back support, because at no time has the plaintiff alleged lower back
pain as a result of the accident. However, to the extent that these changes
assisted with the plaintiff’s shoulder pain, the defendant accepts that they
are proper.

[271]     I have already found that the plaintiff’s degenerative neck changes
would not likely have become symptomatic but for the Accident. Given that
conclusion that the neck pain was caused by the Accident, I am satisfied that
the defendant is liable for the expenses incurred for these ergonomic changes.

[272]     Finally, the defendant submits that the plaintiff failed to deduct
$283.20 already paid towards physiotherapy. I agree that this amount should be
deducted off the total.

[273]     In summary, I award the plaintiff $12,312.42 in special costs.

Cost
of Future Care

[274]     Most of the steps that could be taken for rehabilitation have been
undertaken and there are few options left to improve the plaintiff’s
functioning. While the possibility of further surgery in the future has been
raised, it presents with an uncertain and risky outcome and therefore would not
be pursued by the plaintiff.

[275]     The plaintiff’s future care claim then consists of the items listed
in the occupational therapist, Megan Stacey’s July 3, 2009, report based on her
ergonomic assessment of the plaintiff’s home office, which have not already
been purchased and recommendations in the report and evidence of Dr. Craig.
They are the following:

[276]     The defendant submits that there should be no award for future
costs. The defendant submits that any of the ongoing complaints of shoulder
pain are relatively minor and can be addressed by avoiding aggravating
activities and by taking frequent breaks from the computer, as recommended. Furthermore,
the defendant asserts that the plaintiff’s ongoing complaints are primarily due
to his pre-existing asymptomatic degenerative disk disease and/or the
intervening left clavicular fracture and as a result, any future care costs do
not flow from the injuries sustained in the Accident for which the defendant is
liable.

[277]     Having already concluded that his ongoing complaints are from the
injuries sustained in the Accident, I find all these requests are reasonable.

CONCLUSION

[278]    
In summary, the Court awards as follows:

[279]     I leave it to counsel to calculate the necessary deductions for
income tax.

[280]    
Subject to the usual considerations, the
plaintiff will have his costs. If costs cannot be agreed upon, the parties may arrange
with the registry a time to come before me.

“L.D. Russell J.”

_______________________________________

The Honourable Madam Justice Loryl D. Russell