IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100616

Docket: M082664

Registry:
Vancouver

Between:

Fang-Meng Ho also
known as

Matthew Ho

Plaintiff

And

Sundeep S. Dosanjh
and Upender S. Dosanjh

Defendants

Before:
The Honourable Mr. Justice Silverman

Reasons for Judgment

INTRODUCTION

[1]            
In this trial, the plaintiff claims damages for injuries suffered in a
motor vehicle accident (“MVA”) on August 3, 2006.  Liability is admitted by the
defendants.  This judgment addresses quantum of damages only.

[2]            
The MVA was caused when the plaintiff’s Honda Prelude was rear-ended by
a one ton truck being driven by one of the defendants.  The plaintiff’s vehicle
sustained damage in excess of $7,000.

[3]            
Oral evidence, and/or copies of clinical records and/or medical reports
were provided from the following medical professionals:

Dr. Surka – the plaintiff’s general practitioner;

Dr. le Nobel – physiatrist;

Dr. Mehta – oral medicine;

Dr. Weiss – physical medical and rehabilitation;

Dr. Beckie – dentist;

Dr. Chiu-Piu Lam – Intra Muscular Stimulation (“IMS”);

Dr. Guenette – chiropractor;

Dr. Gilbart – orthopaedic surgeon;

Mario Aniceto – registered massage therapist; and

Kam Yan – acupuncturist.

Chronology

October 10, 1970         This is the birth date of the plaintiff.  He
was 35 years old at the time of the accident.  He is now 39.

May 17, 1996               The plaintiff was injured in a prior MVA
(the “prior MVA”).

May 13, 1999               The plaintiff began employment with
Alderwoods Group (“Alderwoods”) as an accountant.

June 2000                    The plaintiff suffered a flare-up of
injuries from the prior MVA (the “flare-up”).

2003                            The plaintiff returned to all previous
activities.

August 3, 2006             The subject MVA occurred.

October 23, 2006         The plaintiff began a gradual return-to-work
program at Alderwoods.

November 19, 2006      The plaintiff resumed full-time work at
Alderwoods.

November 1, 2007        The plaintiff left Alderwoods.

March 3, 2008              The
plaintiff began work on a contract at Vancouver Coastal Health (“VCH”).

INJURIES AND CONSEQUENCES

Pre-MVA

[4]            
The plaintiff has been involved in sports and physical recreational
activities all of his life.

[5]            
When in high school, he won two National Wrestling Championships and
also represented Canada at the World Championships.

[6]            
When in university, he began playing competitive team sports, including
volleyball and slow-pitch baseball.  He also golfed and biked regularly.

[7]            
After university, while working in Saskatchewan, he played volleyball
three times a week and slow-pitch on weekends.

[8]            
As a result of the prior MVA in 1996, he suffered whiplash to his upper
back, neck, sternum, and shoulders.  He also suffered thoracic outlet syndrome
in his left shoulder and arm, temporomandibular joint dysfunction (“TMJ”), and
headaches.

[9]            
After that accident, he followed a rehabilitation plan which included
physiotherapy, chiropractic treatments, and trigger-point injections.  He also
followed an exercise and stretching regime overseen by an occupational
therapist.  He was pro-active and highly motivated with respect to all of the
foregoing.

[10]        
The plaintiff moved from Saskatchewan to Vancouver in 1998.  By that
time, he was no longer suffering from the injuries of the prior MVA.  He had
returned to all of his former physical and sporting activities and did not have
any limitations.  He was on a softball team, played competitive volleyball, and
participated in long hikes, rollerblading and skiing.

[11]        
In 1999, he obtained a job at Alderwoods.  When not working, he enjoyed
participating in his various athletic and recreational pursuits.

[12]        
The plaintiff suffered a flare-up of his prior MVA injuries in the
summer of 2000.  Even so, he continued to exercise four to five times a week. 
However, the flare-up caused him to refrain from playing volleyball and
baseball.  The plaintiff started massage therapy, IMS, and chiropractic
treatment.

[13]        
He did not miss any time from work as a result of the flare-up.

[14]        
In 2001, the plaintiff and his brother travelled to Australia for a
three-week backpacking trek, which included carrying heavy backpacks.

[15]        
In the summer of 2002, the plaintiff returned to volleyball and in early
2003, he returned to slow-pitch.  By this time, he again was playing all of his
sports without restriction.  He was playing aggressively and at a competitive
level.  He would race while rollerblading, and although he only skied four to
five times a year, he was described by witnesses as fearless and capable on
expert runs.

[16]        
He participated in regular hiking, including hiking the Grouse Grind, a
well-known local, extremely difficult mountain hike.

[17]        
Once again, it was his pro-activity and motivation which enabled him to
recover from the consequences of the flare-up as fully as he did.

[18]        
From 2003 to 2006, the plaintiff regularly attended for massage
therapy.  He testified that this was not a result of injuries from the prior
MVA or from the flare-up, but was for maintenance to relieve tension in his
neck and back related to his active lifestyle, to ease the stress from the busy
work week, and to treat various sporting injuries.

[19]        
The plaintiff was extremely active, sociable, jovial, positive, and a
practical joker.  He was talkative and inquisitive.  He had a wide network of
friends.

[20]        
The defendants do not call the plaintiff a liar with respect to any of
the foregoing.  However, they do suggest the following:

1.       he has minimized the significance and
duration of the flare-up;

2.       he has minimized the reasons for his ongoing
treatments prior to the subject MVA;

3.       whatever
else one may say of the flare-up, it was sufficiently severe to keep him from
playing baseball, a sport which he loves above all the others, for almost three
years.

Post-MVA

[21]        
As a result of the subject MVA, the plaintiff suffered pain in his neck,
upper back, shoulder, jaw, numbness down the left arm, headaches, and
insomnia.  He was on a variety of medications for a period of time and was
unable to work.

[22]        
The most serious and ongoing consequences of the MVA are the TMJ and the
headaches, which leave him in constant pain.

[23]        
Dr. Mehta confirmed that the plaintiff suffers from pain in his jaw,
teeth, and  related areas, and that he suffers from headaches as a result of
the MVA.

[24]        
He testified that these areas of concern had not improved significantly
in the four years since the MVA and further recovery was unlikely; that the
plaintiff will suffer long-term symptoms that impact on all aspects of his
functioning; and that he should avoid any activities that involve jumping or
jarring.  Dr. Mehta recommended conservative care, including continuation of
various treatments which were already ongoing, such as physiotherapy and
massage.

[25]        
Dr. le Nobel diagnosed the plaintiff with diffuse myofascial pain
syndrome, TMJ, and chronic headaches.  He testified that the plaintiff’s
capacity for recreational pursuits has been compromised and that this will
continue for the foreseeable future.  He testified that, given the amount of
time that has passed since the MVA, there is unlikely to be any further
improvement.

[26]        
Dr. Weiss confirmed that the plaintiff has chronic neck, back, and TMJ
pain and that, in his opinion, “they will remain a long term issue.”  He noted
that the plaintiff had a pre-existing degenerative condition, which made him
more susceptible to injury from the MVA.

[27]        
Dr. Gilbart provided an independent medical report and was called as a
witness for the defence.  He confirmed that the MVA aggravated the plaintiff’s
pre-existing degenerative condition in his neck.  He opined that the “prognosis
for significant further improvement in his symptoms at this point is guarded.” 
He noted that the plaintiff was asymptomatic prior to the MVA and was
functioning at a very high level in all aspects of his life.  Dr. Gilbart also
noted that, despite the post-MVA pain complained of by the plaintiff, he still
appeared to be functioning at a very high level.  Finally, he opined that,
given the pre-existing condition of the plaintiff as well as his prior history,
he likely would have had flare-ups in the future even if the MVA had not
occurred.

[28]        
 With respect to the jaw pain and headaches, Dr. Gilbart deferred to the
expertise of Dr. Mehta.

[29]        
Presently, the plaintiff has not returned to most of his pre-MVA athletic
activities.  He no longer is involved in volleyball, softball, aggressive
hiking, or skiing.  He does still rollerblade, although not as aggressively as
before, and he has recently begun to swim with the encouragement of his
girlfriend, who is a physiotherapist’s assistant.

[30]        
Various friends testified that the plaintiff’s personality has changed. 
He is moody, irritable, withdrawn, quiet, rarely socializes, and not as
pleasant to spend time with as he used to be.  It was clear to me, when
watching the plaintiff in the gallery of the courtroom that he was distressed
when he heard this testimony.  He subsequently testified that he had not
actually heard these witnesses say this before.

Non-pecuniary damages

[31]        
The plaintiff suggests that the following factors support a claim for
non-pecuniary damages in the range of $80,000 to $120,000, and suggests that
this is an appropriate case for the higher end of that range:

1.       He suffers from chronic headaches as well as,
neck, back, jaw, and shoulder pain.  Pain is present on a constant daily basis
and impacts all levels of his functioning.

2.       His recreational pursuits have been
compromised and will continue to be so.  He has not returned to the sports he
once enjoyed.

3.       He is constantly exhausted, depressed, and
has difficulty focusing.  He works with constant pain and is unable to work
overtime or pursue a professional designation to further his career.  He spends
his free time focussing on rehabilitation.

4.       His diet is limited by his TMJ.  He can no
longer eat certain foods. 

5.       He has become irritable and his demeanour has
alienated friends.

6.       The injuries have taken an emotional toll on
him: they affect his social relationships and they cause him to spend a lot of
time and energy seeking treatments and relief.  There is little prospect of
further recovery.

7.       His injuries are permanent, his pain is significant
and disabling, and his lifestyle has changed dramatically.

8.       The plaintiff was extraordinarily physically
active all of his life, including during the time period immediately before the
MVA.

9.       He is highly motivated to get better, but has
been unsuccessful.  His high level of motivation has been proven by the manner
in which he returned to health and to all of his former activities after the
prior MVA, and after the flare-up.

10.     All
of the defendants’ arguments, which suggest his problems with the plaintiff’s
case, may have some bearing on his less serious injuries, but they do not have
bearing on the more serious of his injuries, the TMJ and the headaches.

[32]        
In support of this claim, the plaintiff cites the following cases with
similar injuries:

Stapley v. Hejslet, 2006 BCCA 34

Sauer v. Scales, 2009 BCSC 1250

Kokkinis v. Hall (1996), 19 B.C.L.R. (3d) 273 (C.A.)

Murphy v. Jagerhofer, 2009 BCSC 335

Ashmore v. Banicevic, 2009 BCSC 211

Russell v. Turcott, 2009 ABQB 19

Marois
v. Pelech, 2007 BCSC 1969, aff’d 2009
BCCA 286

[33]        
The defendants suggest that the following factors support a claim for
non-pecuniary damages in the range of $45,000 to $60,000:

1.       The plaintiff’s claims rest primarily upon
his self-report.  There is little or no objective evidence of loss of function
or physical impairment.  The plaintiff’s assertions of his pain level must be
assessed in the context of his continuing high level of functioning since his
return to work in late 2006.

2.       The plaintiff gave evidence over several
days.  While he broke down on several occasions, apparently as the result of
the context of certain questions, he did not appear to be a man who was
compromised by pain.

3.       The medical opinions ranged from “will
probably improve” (Dr. Weiss), to “may improve” (Dr. le Nobel), to
“guarded” (Dr. Gilbart), to “may continue to suffer symptoms long term”
(Dr.  Mehta).  None of these opinions is the equivalent of “will not
improve”.

4.       The evidence suggests a reasonable
expectation that the plaintiff would have suffered a further flare-up even
without the subject MVA.  Both Dr. Gilbart and Dr. Weiss focussed upon his
pre-existing degenerative condition and the fact that he had already suffered a
flare-up in the year 2000, without any evident trauma to cause it.

5.       All of his present symptoms manifested to
some degree after the prior MVA and during the flare-up.

6.       After the flare-up, he did not fully return
to all of his sporting activities for approximately three years.

7.       The
plaintiff was receiving the same treatments before the MVA as he has been
receiving since the MVA, and which he wishes to continue receiving.  It is
reasonable to suppose that, even without the MVA, he would have continued to
receive those treatments.

[34]        
In support of this claim, the defendants cite the following cases with
similar injuries:

Zaruk v. Simpson, 2003 BCSC 1748

Fiust v. Centis, 2005 BCSC 1067

Ghani v. Umran, 2008 BCSC 585

Wilby v. Hyatt, 2008 BCSC 1019

Larlee v. Shier, 2008 BCSC 1610

Deiter v. Briggs, 2009 BCSC 914

Miller v. Fraumeni, 2005 BCSC 1231

EMPLOYMENT ISSUES

History

[35]        
The plaintiff has a good work history and cannot
be considered as anything other than hard-working and industrious.  Since
graduating university, he has maintained employment in his chosen field of
accounting. 

[36]        
At the time of the MVA, he was working as an
accountant at Alderwoods.  He began working there in 1999.  In 2000, he received
a promotion to a different department.  In 2005, he was promoted to Alderwoods’
tax department where he was working at the time of the MVA.  He remained there
until November of 2007.

[37]        
He received salary increases with each promotion.
Calculated on an hourly basis, his pay would be based on a rate of
approximately $22 per hour, plus benefits, at the time of the MVA.

[38]        
Following the MVA, he was fully disabled and
unable to work for approximately three months.   He received disability
benefits from Alderwoods.  He returned to work on a graduated basis beginning
October 23, 2006.  He was again working full-time by November 20, 2006.

[39]        
Following his return to full-time work, he
missed work on a number of occasions.  He claims wage loss for many of these
days for reasons that he categorizes as loss of sick leave, loss of vacation,
loss of banked time, and the need to attend for various treatments.

[40]        
On March 7, 2008, he began a new job as an accounts
receivable coordinator at VCH.  This is a contract position for which he was
paid $35 per hour.  He was not paid for overtime, nor was he paid for
time missed from work.

[41]        
He claims that he missed a number of hours at
VCH for the same various reasons that he missed work at Alderwoods and that he is
entitled to be reimbursed at the rate of $35 per hour.

[42]        
In the years 2006 to 2010, the plaintiff’s gross
income was as follows:

[43]        
Since working at VCH, the plaintiff has been aware
that his contract position was to be eliminated and replaced by a full-time
position, which will have essentially the same responsibilities.  It has been
posted internally and on the company’s website.  The plaintiff has formally
applied for it.  He has been told that having a designation as a Certified
General Accountant  (“CGA”) or a Certified Management Accountant (“CMA”) is a
requirement for the job.  He believes this to be the case and indicated to VCH that
he is willing to attempt to obtain his designation as a CGA.  He also indicated
that to the court, although he expressed concern about the difficult physical
requirements (in terms of energy and study hours) required in order to obtain
the designation.

[44]        
The plaintiff attempted to obtain his Chartered Accountant’s
qualifications before moving to British Columbia in 1998, but failed the
examinations on two separate occasions.  The second of those attempts was after
the prior MVA.

[45]        
After moving to British Columbia but prior to
the subject MVA, the plaintiff took no steps to obtain a designation and
testified that he did not believe it was necessary for career advancement along
the course that he was then pursuing.  He now realizes that it likely is
important for career advancement.

[46]        
Since becoming aware that the job he has applied
for would require a designation, he has taken no steps to obtain one, or even
to determine whether or not he might be granted any accommodation in the amount
of time that would be available to him in order to pursue that objective.  He
testified that he believes that some sort of accommodation is sometimes granted,
but he has not determined what might be granted to him in his particular
circumstances.

[47]        
At the close of the evidence, no indication had
been given to the plaintiff that he would obtain the job, or that any other
person might fill that position and leave him without employment.  He continued
to work on contract.  At the close of the evidence, it was not clear when, or
if, he would be hired as a salaried employee to fill that position.

Past Wage Loss

[48]        
There is agreement between the parties with
respect to the work-time missed during the time before the plaintiff returned
to work full-time, that is, until November 20, 2006.  That agreement is as
follows:

1.       $10,338.75 as past wage loss to be forwarded,
pursuant to a subrogation agreement, to Alderwoods.

2.       $1,653.75
to be paid to the plaintiff.

[49]        
From November 20, 2006, the plaintiff claims
losses in the following years for the following amounts:

[50]        
I am satisfied that the plaintiff’s claim must
be reduced in the following amounts for the following reasons:

(a)      While vacation pay in 2007 is compensable
because it is something which the plaintiff was entitled to receive from Alderwoods
in cash (since it was the last year of his work there), the vacation pay in
2006 is not compensable.  Alderwoods’ policy was that annual leave had to be
taken and could not be carried from year to year.  The amount disallowed is 16
hours x $22 per hour = $352.

(b)      While working at VCH, absences in order to
pursue this litigation are not compensable.  The plaintiff has claimed 11.75 lost
hours to attend his examination for discovery and an IME with Dr. le Nobel. 
These are disallowed.  I have considered whether or not they should be allowed
on the same principle that a winner of a lawsuit might be entitled to costs. 
However, this is a different situation.  If these were allowed, then what would
follow?  Would the plaintiff be entitled to time off to attend the trial, to
attend his lawyer’s office, and so on.  Therefore, 11.75 hours x $35 per hour =
$411.25 is disallowed.

(c)      The
plaintiff has claimed a loss of six full days of work (a total of 48 hours) in
order to attend for various treatment appointments. He has claimed that he
needed time to mentally and physically prepare for the various appointments. 
They were also all taken on a Friday or a Monday.  I will allow two hours for
each of those days but disallow six hours per day.  Therefore, I disallow 36
hours x $35 per hour for a total of $1,260.

Total
Disallowed Amounts: $2,023.25.

[51]        
Therefore, the plaintiff’s claim of $5,736.25 is
reduced as follows: $5,736.25 – $2,023.25 = $3,713.00.

[52]        
Therefore, the gross amount of past wage loss is
as follows:

Subrogated amount                               $10,338.75

Agreed upon amount                             $1,653.75

Additional Wage
Loss $3,713.00

TOTAL                                                 $15,705.50

[53]        
Since the plaintiff is entitled to only net
income, it is necessary that relevant taxes be deducted.  There was some
discussion about whether or not a deduction should be made with respect to the
subrogated amount.  I am satisfied that it is not appropriate to make such a
deduction.  The plaintiff has already received that amount from his employer
and has already paid taxes on it.  Consequently, he (and by subrogation, his
employer) is entitled to reimbursement of the full amount.  Since the plaintiff
has already paid taxes on the amount, s. 98 of the provincial Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231 has been complied with because the
ultimate result is that the plaintiff has already received the net amount
only.  Therefore, no taxes will be subtracted from the subrogated amount.

[54]        
However, taxes must be subtracted from the other
two amounts ($1,653.75 + $3,713.00 = $5,366.75).  Counsel are agreed that the
relevant tax discount in each of the relevant years is approximately 20 percent
and are agreed that it is appropriate to simply use a global figure of 20
percent for the entire amount.  I agree, and proceed accordingly.  The total of
those two figures will be discounted by 20 percent.  Therefore, the 80 percent
remaining ($4,293.40) is the amount of past wage claim payable together with
100 percent of the subrogated amount: $10,338.75 + $4,293.40 = $14,632.15.

Future Loss
of Earning Capacity

[55]        
The plaintiff argues that, at the time of the
close of the evidence, he was in danger of losing his employment.  The job he
had applied for remained posted, and a considerable period of time had passed
since he applied.  It had been posted on the company website.

[56]        
The plaintiff believes that it is a requirement
of the job that he have a formal designation.  He does not have it. 

[57]        
He argues that he is now never going to be able
to obtain his CGA designation.  The requirements of study are too onerous and,
as a result of the MVA, he no longer has the physical capability or energy to
fulfill those requirements.  There is evidence before me about the number of
hours and years necessary, as well as evidence of various friends of the
plaintiff, who have obtained their designations, and who have testified about
the difficulties and pressures that it involves.

[58]        
Finally, the plaintiff, and his professionally
designated friends have testified that a designation is virtually mandatory for
advancement in any accounting field.  Failure to have it may result in the
plaintiff’s inability to be employed as an accountant, or alternatively, may result
in his being employed at a lower income than he would otherwise earn.  In fact,
even while working on contract with VCH, his pay is $35 per hour while
designated persons doing the precise same work have been receiving $40 per
hour. 

[59]        
He argues that the totality of the medical evidence
suggests that it is highly unlikely, if not impossible, that the plaintiff
could perform the extended hours of study in the evenings necessary to complete
the CGA program, given his history of ongoing daily pain at work, the fact that
he is exhausted at the end of the work day, and that he then proceeds to
complete a daily rehabilitative regime in order to sustain his level of
functioning.  The medical evidence suggests that further improvement is
unlikely.

[60]        
The plaintiff argues that, as a result of foregoing,
he is entitled to be put into the position in which he would have been but for
the MVA, insofar as money can accomplish that goal.

[61]        
Applying the principles most recently summarized
by the Court of Appeal in Perren v. Lalari, 2010 BCCA 140, the plaintiff
argues as follows:

1.       There is a real and substantial possibility
that he will suffer a future economic loss.  The evidence that the plaintiff
relies on for that proposition is the following:

(a)      He has chronic pain that impacts all aspects
of his functioning.

(b)      He works through the pain but takes breaks
throughout the day to change positions, stretch, and walk.  Other employees do
not take these breaks.

(c)      He misses work from time to time.  As a
result, he is exhausted at the end of the work day.  He is involved in a
regular rehabilitation program to maintain his functioning.

(d)      His current position at VCH is tenuous.  It
has been some time since he was interviewed and yet the job remains open and
posted on the website.  The new job requires a professional designation.  Most
accounting jobs require a professional designation.

(e)      He does not have his designation and will not
be able to complete the necessary program.

(f)       All
of the foregoing will impact on his ability to achieve and maintain the
employment he needs.

2.       I should then consider positive and negative
contingencies.  Most important among them is the contingency with respect to
whether or not the plaintiff will go on to obtain his CGA designation.  If he
fails to do so, then clearly his income will be diminished below what it would
otherwise be.  However, even if he does obtain the designation, his income will
be diminished (although to a lesser extent), because he is clearly not able to
work as hard as he would be able to but for the MVA.

3.       The loss should be viewed as a capital asset
and can be valued in any of the following ways:

(a)      By considering that he might earn $5 less per
hour for the rest of his working life.  Applying the income loss multipliers,
which have been presented in evidence by an expert witness, the present value
equals approximate $190,000 over his working life. 

(b)      If the plaintiff obtains a job similar to his
previous job at Alderwoods when he was on his salary, this would be a loss in
excess of $10 per hour.  Applying the same multipliers represents present value
loss up to age 65 of approximately $380,000.

(c)      By
applying a two-year wage loss (as in Kahle v. Ritter, 2002 BCSC 199). 
Based on his current salary of approximately $70,000 per year, this would represent
a loss of approximately $140,000.

[62]        
The plaintiff argues therefore that a fair and
reasonable award under this head of damages would be $150,000.

[63]        
The defendants argue as follows:

1. Perren v. Lalari makes more clear the
correct analysis for approaching such a situation then before that decision was
pronounced.  Prior to that decision, there was some uncertainty as to whether
or not a loss of any of the four factors set out in Brown v. Golaiy (1985),
26 B.C.L.R. (3d) 353 (S.C.) could result in an award under this head of damages
in the absence of evidence from which the court could conclude that there was a
real and substantial possibility that the plaintiff would in fact suffer a
future pecuniary loss. Perren sets that to rest.  In the absence of such
a finding, the four Brown v. Golaiy factors cannot result in such an
award.  The defendants argue that that is the situation in this case.

2.       There is no real and substantial possibility
of a future economic loss.  The possibility of a future loss is remote.  The
plaintiff has continued to work, after a three-month absence from work as a
result of the MVA, and in fact has taken on a job which involves longer hours,
stress, and responsibility than his previous job.  His income has continued to
increase.

3.       Even if he does not get the job which he has
applied for at VCH, it is likely that he will continue to be employed as a
non-designated accountant with some other company.  He has demonstrated an
aptitude for that work and is apparently well respected in the field.

4.       There is no realistic possibility that he
would ever undertake more physically demanding or challenging work than he now
has.  He has been involved in this field since before moving to British
Columbia.

5.       The plaintiff’s failure to obtain his CGA is
not related to the MVA.  He failed his attempt to obtain his CA before moving
to British Columbia.  After moving to British Columbia,  he did not make any
attempt to obtain his CGA before the subject MVA, nor did he consider it a
career necessity at that time.  Even after learning that his employers
considered a designation a necessity for the current job, he still made no
inquiries in order to determine what would be expected of him in order to
obtain the CGA, or whether or not some accommodations could be made for him to
take the course over a long period of time.  His failure to obtain his CGA has
nothing whatsoever to do with the MVA.

6.       Alternatively, if the plaintiff wants and
needs his CGA, he has the ability to get it.  The evidence indicates that the
governing body is willing to grant certain accommodations in the amount of time
that might be granted in order to complete the qualifications.  Surely it is
incumbent upon the plaintiff to have made inquiries as to precisely what
accommodations might be granted to him.  Whatever they are, it is submitted
that he has demonstrated an ability to work hard when he is motivated to do so,
and if he needs it for career advancement, he will do so.

7.       If 
the plaintiff does not get the job that he has applied for, it will not be
because of this MVA; rather, it will be because the plaintiff has chosen not to
fulfill the requirements that his employer has told him were necessary for the
job.

SPECIAL DAMAGES

[64]        
The plaintiff’s claim is for reimbursement for medication and attendance
for a variety of treatments including the following:

1.       Physiotherapy;

2.       IMS;

3.       Acupuncture;

4.       Massage Therapy;

5.       Home and Gym-based exercises;

6.       Chiropractic treatments;

7.       Craniosacral treatments; and

8.       Medications
for pain management.

[65]        
The amount claimed is supported in the evidence by receipts and a chart
prepared by the plaintiff, the accuracy of the calculations of which the
defendants have not contested.

[66]        
What is contested is the question of whether some of the expenses are MVA related.

[67]        
The defendants argue the following, with respect to all of the various
medical and quasi-medical treatments that the plaintiff has been receiving
since the MVA, many of which he wishes to continue receiving:

1.       He was already receiving most of those
treatments even before the MVA, raising the following questions:

(a)      are the injuries being treated MVA-related
such that compensation should be paid?

(b)      would the plaintiff have continued to receive
these treatments even if he had not been in the MVA, and consequently should
the defendants have to pay for them?

2.       The
treatments have little likelihood of causing any improvement in the plaintiff’s
condition, although they do provide him with short term relief.

[68]        
The plaintiff responds that:

1.       Before the MVA, the treatments were for
unrelated sports injuries, not for the same type of injuries that he suffered
in the MVA;

2.       He
doesn’t only receive them because they provide relief; he receives them because
his doctors and other medical professionals all, without exception, recommend
that he take them.

[69]        
The total amount of the plaintiff’s claim is $14,654.34, which includes
the amount of $5,419.84, which is to be repaid to an insurer.

[70]        
The defendants contest three aspects of the plaintiff’s claim:

1.       An expense of $340 for orthotics.  During
submissions, the plaintiff abandoned this aspect of his claim.

2.       An expense of $650 for a night-guard for the
plaintiff’s teeth.  He argues that this is required for his accident-related
TMJ.  However, the evidence establishes that the night-guard, and the need for
it, pre-dated the subject MVA, and that it was going to have to be replaced in
any event.  I decline to award this amount to the plaintiff. 

3.       The
defendants argue that the plaintiff should be denied reimbursement for massage
therapy expenses because he was incurring those expenses prior to the subject
MVA.  The evidence indicates that he was attending regularly for massage
therapy for a number of years before the MVA at an average expense of
approximately $1,500 per year. 

[71]        
With respect to the massage therapy expense, I conclude that the
defendants are responsible for these.  While it is true, that if the accident
had not occurred, the plaintiff might have continued indefinitely with
attendance for sport-related injuries, the MVA made that impossible. 
Attendances since the MVA have not been for sports-related injuries.  While it
is true, that he also received a “tune-up” when attending before the MVA, on
those areas of his body which were subsequently injured in the MVA, I am
satisfied that his need to attend, post-MVA, has been primarily the result of
the MVA itself.  Consequently, the defendants will be responsible for these
expenses.

[72]        
Therefore, the plaintiff’s claim under this head of damages is reduced
by the following amounts:

[73]        
Therefore, the plaintiff’s claim in the amount of $14,654.34 is reduced
by $990 leaving a total of $13,664.34.

FUTURE COST OF CARE

[74]        
The plaintiff argues as follows:

1.       The plaintiff is entitled to be compensated for
continuing treatments and medication, both of which provide him with relief.

2.       When he has had treatments in the past, he
has felt better.  When he has stopped having treatments, he has felt worse
until he has recommenced them again.

3.       Dr. le Nobel suggested that a program
involving a physiotherapist and a fitness facility would be useful for a period
of 12 to 18 months, as well as attendance at a chronic pain facility to teach
pain management.

4.       Dr. Gilbart acknowledged that any treatment
that provided relief was a good thing. 

5.       Even if treatments merely provide “relief” to
the plaintiff that enables him to function in a better way at work, at play,
and in society, that is something that a compensation award should address.

6.       All of the doctors agreed that if the
plaintiff is deriving relief from his treatments, then continuing with those
treatments is a good thing.

7.       The plaintiff may require medication for
future flare-ups. 

8.       The plaintiff’s specialized mouth-guard will
require replacing every two or three years for the foreseeable future at a cost
of approximately $650 per appliance.

9.       The plaintiff suggests the following method
for determining the appropriate amount of future care costs:

(a)      determine his special damages since the MVA;

(b)      divide them by four to determine the average
yearly cost per date;

(c)      reduce this figure to $2,000 per year as a
useful approximation; and

(d)      look to the economic charts, which are in
evidence, to determine the present value over the working lifetime of the
plaintiff.

10.     The
plaintiff suggests that by using this approach, the present value of the cost
of future care approaches $40,000.

[75]        
The defendants argue as follows:

1.       All of the doctors agree that most medical
improvement after an MVA is achieved after the first two years.  Further
recovery is limited after that time.  In this case, almost four years has
passed.

2.       It follows that treatment is unlikely to
result in much further improvement, and therefore the defendants should not be
required to pay for it.

3.       While the plaintiff may achieve some relief
from ongoing treatment (possibly even for the rest of his life), the defendants
should hardly be required to pay for this if it is not going to improve the
plaintiff’s condition.  Rather, such a difficulty should be reflected in the
award for non-pecuniary damages.

4.       Dr. le Nobel suggested that his
“recommendation” was unlikely to be effective but was “still worth trying”.

5.       Dr. Gilbart suggested that the plaintiff did
not require any further treatment other than a continuation of a home-based
exercise, stretching and strengthening program. 

6.       There is no evidence with respect to the cost
of a chronic pain facility, nor any evidence about whether or not some or all
of that cost might be paid via the public health care system.

7.       It is unlikely that the plaintiff will ever
use medication, which he has testified he is determined to avoid.

8.       The defendants should not have to pay for
treatments of the variety which the plaintiff was receiving prior to the MVA. 
The evidence suggests he would have continued to avail himself of these
treatments at his own expense even if the MVA had not occurred.

9.       With respect to the suggestion of Dr. le
Nobel that a 12 to 18-month program might be appropriate:

a)       there is no evidence as to the cost;

b)       this is precisely the type of program that
the plaintiff was in prior to the MVA.  The defendants should not have to pay
for it.

10.     The
mouth-guard is something which the plaintiff would have had to purchase in any
event, even if the MVA had not occurred.

CONCLUSIONS

Non-Pecuniary Damages

[76]        
I am satisfied that the plaintiff has suffered neck, back, jaw, and
shoulder pain, and that he continues to suffer on a daily basis, particularly
from TMJ and headaches.

[77]        
I am satisfied that it has affected his recreational and athletic
activities, which were an important part of his life.

[78]        
I am satisfied that there is unlikely to be much further improvement.

[79]        
I am also satisfied that, while he is suffering pain, he is nevertheless
able to function in a reasonably normal way.  He certainly appeared to be
reasonably comfortable when giving evidence.  He also continued to work
full-time after a period of months during which he was unable to work, although
I accept that work is much less physically comfortable for him than it used to
be.

[80]        
While I accept the evidence that he might have suffered another flare-up
even in the absence of the MVA, I am satisfied that the MVA was, and is, the
primary cause of his current difficulties.

[81]        
With respect to ongoing treatments for the rest of his life, I am
satisfied that, while these might provide him with some periodic temporary
relief, they are not likely to result in any improvement.  Consequently, what
the plaintiff might perceive as the “need” for such ongoing treatments, will be
reflected as an aspect of the non-pecuniary award.

[82]        
In all the circumstances, I award $75,000 for non-pecuniary damages.

Past Wage Loss

[83]        
For the reasons noted earlier in this judgment, the amount awarded under
this head of damages is $14,632.15, which includes a subrogated amount to be
paid to Alderwoods.

Future
Loss of Earning Capacity

[84]        
I am satisfied that there is a real and substantial possibility that the
plaintiff will suffer a future economic loss.

[85]        
However, this possibility does not arise from a finding that the
plaintiff will fail to obtain an accounting designation as a result of the
MVA.  Rather, I conclude that the plaintiff is likely to obtain his accounting
designation if he chooses to do so.  Alternatively, I consider it likely that,
if he fails to obtain it, it will not be as a result of the MVA; rather, it
will be because of decisions that he made long before the MVA which satisfy me
that he did not consider it important enough to pursue.

[86]        
Having said that, I am satisfied that, if he does seek to obtain the
CGA, he will have more difficulty doing so as a result of the MVA, in the sense
that he will find it more uncomfortable to study and put in the effort.  I am
also satisfied that he will require an accommodation which will take him
longer.  This is a factor which will be reflected in the award under this head
of damages.

[87]        
I am also satisfied that the discomfort that he has when working reduces
his attractiveness to potential employers as it will cause him to have to work fewer
hours, and perhaps to have to take time off periodically, which would not have
been the case but for the MVA.

[88]        
Given that his discomfort may continue for the balance of his working
life, the pecuniary losses which will result may be substantial.

[89]        
In all the circumstances, I am satisfied that a fair and reasonable
award under this head of damages is $60,000.

Special Damages

[90]        
For the reasons noted earlier in this judgment, the amount of special
damages awarded is $13,664.34.

Future
Cost of Care

[91]        
I reject the notion that ongoing treatment that would provide the
plaintiff with periodic temporary relief, but little to no additional
improvement, should be something for which compensation should be paid for the
rest of the plaintiff’s life.  As previously noted, this loss has been
considered as an aspect of non-pecuniary damages.

[92]        
Having said that, I would endorse Dr. le Nobel’s recommendation that a
program involving a physiotherapist and a fitness facility would be useful for
a period of 12 to 18 months, as well as attendance at a chronic pain facility
to teach pain management.  Regrettably, there is no evidence with respect to
the projected cost of those programs.

[93]        
However, I am satisfied that some award is appropriate to attempt to estimate
the costs of what Dr. le Nobel suggested, and to provide some treatments for
what minimal improvement may still be on the horizon for the plaintiff in the
short term.

[94]        
In all the circumstances, I am satisfied that an appropriate award under
this head of damages is $8,000.

DECISION

[95]        
In summary, the amounts awarded under the various heads of damages are
as follows:

[96]        
If the parties cannot agree on the question of costs, they may set the
matter down at their convenience.

“Silverman
J.”

_______________________________

The
Honourable Mr. Justice Silverman