IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100623

Docket: M105817

Registry:
New Westminster

Between:

Matthew Trites

Plaintiff

And

Lorne P. Penner

Respondent

Before:
The Honourable Madam Justice Ker

Reasons for Judgment

I.        Introduction

[1]            
This is a personal injury action brought by the plaintiff, Matthew Trites,
against the defendant, Lorne Penner for damages in relation to injuries and
losses sustained in a motor vehicle accident (the “accident”) that occurred on
May 26, 2005 at an intersection in Chilliwack, British Columbia.  Liability for
the accident is admitted on behalf of the defendant.

[2]            
Mr. Trites, who was driving his 2000 Chevrolet Cavalier at the time, was
stopped behind another vehicle that was waiting to make a left hand turn at a T
intersection onto Thomas Road in Chilliwack, B.C.  As he waited, Mr. Trites
looked in his rear view mirror and noticed a vehicle quickly approaching and
that the driver’s head was turned to the side.  Mr. Trites tried to take
evasive action but was forcefully rear ended by Mr. Penner.  At the time of the
collision, Mr. Trites was leaning forward, looking to the right front corner of
his vehicle, and was trying to navigate his vehicle around the vehicle in front
of him and avoid a telephone pole immediately to the right of that other
vehicle.  The collision was of such magnitude that Mr. Trites’ vehicle was
pushed across the road, over the entry way to a gravel yard and was forced up
onto a dirt berm where it stopped.  The force of the impact was so great that when
Mr. Trites was thrown backwards into his seat, the backrest of the seat was
broken, bent backwards and twisted to the right.  The accident resulted in
significant damage to Mr. Trites’ vehicle which was eventually “written off”
due to the cost of repairs.

[3]            
At the time of the accident Mr. Trites was 30 years old.  Although single
at the time of the accident, Mr. Trites had recently started dating a young
woman who has subsequently become his wife.  At the time of the accident, Mr.
Trites was employed as an apprentice plumber with Britco Structures Ltd.
(“Britco”), indentured with them as of November 8, 2004.  In addition to a
claim for non pecuniary damages for the soft tissue injuries sustained in the
accident, the most contentious issues in this claim are whether there should be
an award for cost of future care and loss of future earning capacity.

II.       Position of the Parties

[4]            
The plaintiff, Mr. Trites, now 35 years old, suffered soft tissue
injuries to his neck and back in the accident.  It is the plaintiff’s position that
he continues to experience pain, particularly in his lower back and neck, and headaches
related to these injuries from the accident and which persist to a significant
degree to the present time.  Mr. Trites claims that he is still unable to fully
function at work and in other aspects of his life to the level he did prior to
the accident.  Evidence adduced from other witnesses in the plaintiff’s case suggests
that Mr. Trites may not be able to continue with the heavy labour demands of
being a plumber and that he needs to re-train for some form of employment that
does not have such significant physical demands upon him.  Re-training as a
cabinetmaker has been one suggestion that Mr. Trites may embrace although he
has yet to undertake such re-training.

[5]            
In his final submissions, counsel for the plaintiff asked the court to
consider an award of $75,000 for non-pecuniary damages, approximately $7,100
for past income loss, approximately $600,000 for loss of future earning
capacity, approximately $14,500 for special damages and between $60,000 and
$120,000 for cost of future care, in addition to court ordered interest and
costs.

[6]            
The position on behalf of the defendant is that although the plaintiff
was injured in the accident, he was not injured nearly to the extent he claims. 
The defendant argues that within 18 months of the accident Mr. Trites
demonstrated a significant improvement in his condition and that any lingering
disabilities and pain is attributable to Mr. Trites’ failure to follow his
exercise program, the increased demands from his continuing employment as a
plumber as well as his weight and poor abdominal core strength.  Counsel for
the defendant also argues that Mr. Trites failed to mitigate his losses when he
elected not to purchase a monthly gym pass in early 2007 and continue with the
exercise regime that had been assisting in his improvement and recovery from
his injuries.  Further, counsel for the defendant submits that the plaintiff
has not proven loss of future earning capacity arguing that Mr. Trites has
continued to work in his capacity as a plumber returning to work in September
2005 and remaining in that trade until he was laid off in March 2009.  Insofar
as cost of future care is concerned, the defence acknowledges that some items
under this head of damages are appropriate but that the overall amount to be
awarded should be significantly less than what the plaintiff seeks.

III.       Issues to be Decided

[7]            
The issues to be decided are:

1.     The
nature, extent and severity of the injuries sustained by Mr. Trites in the
accident and the impact on him, including his lifestyle, ability to work,
socialize and participate in recreational pursuits and other forms of physical
activity;

2.     Whether
the plaintiff failed to mitigate his losses;

3.     What
is an appropriate amount of damages, if any, payable to the plaintiff for
injury or other losses he sustained that may properly be attributed to the
accident under the following categories:

(a)  Non-Pecuniary
Damages;

(b)  Special
Damages;

(c)  Loss of
Future Earning Capacity; and;

(d)  Cost of
Future Care.

IV.      The Trial

[8]            
In this trial, the plaintiff testified and also called Brynne Trites,
his former girlfriend and now wife; Dave Heppener, a former co-worker with
Ocean Park Mechanical; and Ms. Tel Basi, Mrs. Trites former landlady.  He filed
the report of his family physician, Dr. Ronald Bull; a report from Dr. Russell
O’Connor, a physiatrist, who treated the plaintiff for approximately
one-and-one-half years; a report from Ms. Jody Fischer, a functional capacity
evaluator; a report from Dr. Colleen P. Quee Newell, a vocational
rehabilitation consultant and a report from Douglas Hilderbrandt, an
economist.  These expert witnesses, with the exception of Mr. Hilderbrandt,
also testified as to their dealings, observations and assessment of the
plaintiff.

[9]            
Counsel for the defendant cross examined the plaintiff and the witnesses
called on his behalf.  He also tendered a medical report prepared by Dr. N.K.
Reebye, a physician with a speciality in physical medicine and rehabilitation,
who conducted an independent medical examination (“IME”) on the plaintiff on
December 12, 2007.  Counsel for the defendant also tendered a medical report
prepared by Dr. Bernard Tessler, a physician with a specialty in neurology, who
conducted an IME on the plaintiff on March 25, 2009.

V.       Evidence at Trial

A.       The Plaintiff’s Case

[10]        
The following is a brief summary of the evidence called by plaintiff
relevant to his claim and the damages sought, accompanied by the findings of
the court as to the reliability, credibility and the significance of the same
to the damages sought.  It should be noted at the outset that in closing
argument counsel for the defendant indicated that the credibility of Mr. Trites
was not an issue in this case.  Counsel also acknowledged that the evidence of
Mrs. Trites was compelling but cautioned the court in its assessment of
compensation which is for Mr. Trites, not Mrs. Trites.

The Evidence of Matthew Trites – the
Plaintiff

[11]        
Mr. Trites described his life prior to the accident on May 26, 2005 as
an active one without any significant health problems.  More specifically, he
said that he was fit and had no problems with his neck or back.  Mr. Trites had
just turned 30 a month before the accident.

[12]        
Mr. Trites was born and raised in New Brunswick.  While in elementary
school he was diagnosed with Attention Deficit Disorder, Dyslexia and Dysgraphia. 
He was prescribed Ritalin at a young age. Despite these disabilities, which contributed
to him repeating a grade in primary school and a grade in high school, Mr.
Trites, through his own perseverance and the assistance of his mother,
graduated from high school and completed 3 years of a college course obtaining
a diploma as a forestry management technician.  Mr. Trites worked through high
school and for a year at an adventure centre on the Fundy Coast before
attending college in Nova Scotia.  Mr. Trites has always been an avid
outdoorsman and sports enthusiast.  His work history prior to moving to British
Columbia in July 2004 included being employed as an adventure sports guide;
doing tree trimming; and, forestry inspection in the Maritimes.  Between April
2001 and April 2002, Mr. Trites worked in the eastern United States inspecting
and repairing utility poles and by the time he finished this work he was leading
his own crew.

[13]        
When Mr. Trites returned to New Brunswick in the spring of 2002, he
noted a significant saturation for employment in the forestry sector and
elected to re-train to become a plumber.  He was not able to enrol in New
Brunswick Community College in St. John in the fall of 2002 but was accepted
into the program in the fall of 2003.  In the year before returning to college
Mr. Trites was employed by Purolator Courier loading, unloading and sorting the
freight from the large trucks.

[14]        
After completing his first year of studies of plumbing in New Brunswick,
Mr. Trites moved to British Columbia in July 2004 and transferred his studies
to Pacific Vocational College in Burnaby.

[15]        
Part of the reason Mr. Trites moved to British Columbia was to be able
to engage in his love of skiing and snowboarding, a passion he acquired during
a visit to British Columbia in the winter of 2003.  After moving to British
Columbia, Mr. Trites became more physically active, taking up skiing and
snowboarding in the winter as well as hiking, hunting and camping activities
whenever he could on the weekends.

[16]        
Upon moving to British Columbia, Mr. Trites entered into the second year
of a four year apprenticeship program to become a journeyman plumber.  His
second year of studies involved five weeks of classroom work and becoming
indentured as an apprentice plumber.  On November 8, 2004 he became indentured
to Britco, and worked with them until January 26, 2007.  By the time Mr. Trites
finished his employment with Britco he was earning $19.06 an hour.

[17]        
Mr. Trites’ work with Britco involved doing the plumbing installation on
modular buildings manufactured in the company’s plant.  The work included heavy
lifting and carrying of toilets and other bathroom fixtures as well as their
installation and that of hot water tanks, waste vents, piping and any other
features associated with installing the plumbing in a pre-fabricated home.  In
addition to lifting and carrying heavy items, the work involved assuming
awkward positions such as being hunched around toilets and hot water tanks to
install them, crawling under the modules and lying on his back to install
piping.  Mr. Trites clearly enjoyed this work and expressed pride and
satisfaction in being able to complete the job properly.

[18]        
In December 2004 Mr. Trites met his future wife, Brynne, and they
started a serious dating relationship that involved them spending most every
weekend together.  At that time, Mr. Trites lived in Chilliwack and Brynne
lived in Delta, B.C.  Their weekends were always designed around various
recreational activities such as hiking and skiing as well as spending
significant amounts of time with the Basi family whom Brynne lived with until
she and Mr. Trites purchased a home in Chilliwack in the spring of 2006 and
moved in together on July 1, 2006.

[19]        
At the time Mr. Trites moved to British Columbia he had gained some
weight due to the months of classes in New Brunswick and weighed approximately
245 pounds.  However, he had no back pain or difficulties or limitations with
his ability to work or to engage in recreational activities at that time.  By
May 2005, Mr. Trites’ weight had decreased to 215 pounds.  He was physically
fit and very active due to his increased recreational physical activity as well
as the demanding nature of his work.

[20]        
Before the accident of May 26, 2005, Mr. Trites had been involved in two
prior motor vehicle accidents, one in New Brunswick in 2000 where his knees were
injured and one in 2004 in Chilliwack, B.C. where he was generally sore for a
couple of days after the accident.  However, by the time of the accident on May
26, 2005, Mr. Trites had no lasting effects from either accident apart from
achy or sore knees when the seasons changed.  Prior to the May 26, 2005,
accident, Mr. Trites had no difficulties with his back or neck.

[21]        
The evidence establishes, and I accept, that prior to the accident on
May 26, 2005, Mr. Trites was a physically active and energetic young man who had
no difficulties with the demanding work required of him as an apprentice
plumber and specifically had no difficulties with his neck or back.

[22]        
Mr. Trites outlined in his evidence how the accident of May 26, 2005,
occurred.  On that date he was driving home from work and intended to go into
the Royal Bank at the corner of Promontory Road and Vedder Road in Chilliwack,
B.C.  Mr. Trites was stopped behind a vehicle that was waiting to turn left at
the T intersection of Promontory Road onto Thomas Road.  Mr. Trites, the only
occupant of his 2000 Chevy Cavalier, was wearing his seat belt and had his
headrest properly adjusted.  He looked in his rear view mirror and saw the
defendant’s vehicle rapidly approaching his vehicle and the defendant’s head turned
to the side.  Mr. Trites knew he was going to be hit and endeavoured to take
evasive action.  He leaned forward in his seat in an effort to get a better
view to his right and started to try and manoeuvre his vehicle to the right
around the vehicle in front of him.  As he let out the clutch, the defendant
forcefully rear-ended Mr. Trites’ vehicle.  The force of the collision was so severe
it pushed his vehicle off the road, across the entry way for dump trucks
attending at the gravel yard, and up a nearby dirt berm.  The force of the
collision threw Mr. Trites backward into his seat and was significant enough to
break the driver’s seat, by bending it back and twisting to the right.  The
frame of the vehicle was also twisted.  The defendant’s vehicle, a 1991 Mercury
Topaz, was towed from the scene.  Mr. Trites was able to drive home but the
vehicle was later written off due to the cost of repairs.

[23]        
Mr. Trites immediately felt soreness in his neck but did not start to
feel any soreness in his upper back through to his hips or knees until the next
day.  He provided a statement to ICBC on Friday May 27, 2005, before he had
been to see a doctor and before the onset of any significant symptoms.

[24]        
Mr. Trites first experienced significant symptoms on Saturday May 28,
2005 when he woke up in a lot of pain and felt “stiff as a board.”  It took him
approximately 40 minutes to work and ease his muscles to get out of bed.  Mr.
Trites went to a walk-in clinic that day and was prescribed Cyclobenzaprine
(Flexeril) and extra strength Tylenol to alleviate the pain he was
experiencing.

[25]        
Due to nature of the pain he was experiencing, Mr. Trites and his
girlfriend, Brynne, had to cancel their weekend hiking plans.  The pain was so
significant that the couple were unable to be physically intimate that
weekend.  Prior to the accident they had what they described as an active and
healthy sex life.

[26]        
Mr. Trites went to see Dr. Bull, his physician, for the first time on
June 2, 2005.  He was concerned about how long he would have to be away from
his work as an apprentice plumber and recalled being advised by Dr. Bull that
he would likely miss four to six weeks of work.  At this first visit Dr. Bull
advised Mr. Trites to start a regime of physiotherapy and massage therapy,
which Mr. Trites followed.  Dr. Bull also prescribed Percocet as a pain killer
to replace the extra strength Tylenol that was not offering relief for the pain
Mr. Trites was experiencing.

[27]        
On June 7, 2005, Mr. Trites was assessed for his suitability in the Work
Hardening Program but was unable to fully perform many of the tests
administered due to aggravation of neck and back symptoms and was referred back
to a two week course of physiotherapy before he was re-enrolled in the Work
Hardening Program.  Mr. Trites completed the Work Hardening Program by the end of
July 2005, and while in the program he saw a physiotherapist on an almost daily
basis.

[28]        
By July 2005 the symptoms Mr. Trites was experiencing were interfering
with his sleep and Dr. Bull prescribed Ativan.  Due to the level of pain
associated with his symptoms during the summer and fall of 2005, Mr. Trites was
unable to engage in any of his previous sporting and recreational pursuits.  A
trip to the annual Celebration of Light Fireworks display in Vancouver in
August 2005, proved so physically uncomfortable for him that he was unable to
cuddle with his girlfriend and had to simply lie on his back and hold hands
with her.

[29]        
Although Mr. Trites completed the Work Hardening Program in late July
2005, he was not ready to return to work immediately.  Dr. Bull and Mr. Trites
favoured a graduated return to work but, in the end, that arrangement was not
feasible with Mr. Trites’ employer.  In consultation with Dr. Bull, he remained
off work until he had to return on a full time basis on September 14, 2005.  In
total Mr. Trites missed 76 days of work as a result of the injuries sustained
in the accident.

[30]        
Shortly after returning to work, on October 19, 2005, Mr. Trites further
strained his lower back while tightening some fittings for a water heater.  He
could not recall if he specifically advised Dr. Bull of this strain but noted
that at his monthly visits with Dr. Bull, he did discuss the issue of the
ongoing back pain he experienced as a result of the accident injuries and was
told that given his strenuous job he could be at risk of further injury to this
area.  I find that the quality of the evidence on this point is not so detailed
as to demonstrate this strain as being something distinct and different from
the injury to Mr. Trites’ back as a result of the accident.  Indeed, it is more
likely than not, and a logical inference from the evidence, that this strain is
more consistent with being an example of how Mr. Trites’ back was compromised
and more susceptible to further strain and injury as a result of the injuries
he sustained in the accident.

[31]        
Following his first visit to Dr. Bull and through 2006, Mr. Trites attended
for most of his recommended medical treatments at Fraser Valley Physiotherapy
and Rehabilitation Center in Chilliwack.  His treatments included seeing a
physiotherapist on approximately nine occasions between June 2, 2005 and April
11, 2006; a massage therapist on approximately 23 occasions between June 21,
2005 and December 27, 2005 and chiropractors on approximately 45 occasions
between November 15, 2005 and September 22, 2006.

[32]        
In addition to attending these various treatment modalities, Mr. Trites
also continued with his gym program attending the local recreational centre on
most weekdays in order to continue with his fitness regime.

[33]        
Despite the treatments Mr. Trites was undertaking and his regular
attendance at the gym, the symptoms did not abate to any significant degree and
Mr. Trites was eventually referred by Dr. Bull to see Dr. O’Connor.  He saw Dr.
O’Connor for the first time in April 2006.

[34]        
In the spring of 2006, Mr. Trites employer, Britco, instituted longer
work hours, (a nine hour day) and mandatory overtime for all employees.  The
longer hours had a negative impact on Mr. Trites pain levels but he continued to
work through the pain.  Although he did not consume the prescribed painkillers
and muscle relaxants while at work, Mr. Trites would often take them at the end
of the work day to ensure that their effect started by the time he returned to
his home at the end of the work day.

[35]        
In July 2006 Mr. Trites and his girlfriend moved into their home in
Chilliwack.  During the move, Mr. Trites could only direct others in the
movement of furniture and boxes and was unable to do any heavy lifting
himself.  In September 2006 Mr. Trites and his girlfriend were married in the
Maritimes and returned to B.C. after a brief honeymoon in New Brunswick.

[36]        
Despite longer work hours at Britco, Mr. Trites continued to make
gradual progress through the Fall of 2006, noting gains in a decrease in his
symptoms and pain levels and described himself as on “an uphill climb”, slowly getting
better.  By this time Dr. O’Connor was giving Mr. Trites trigger point
injections in his neck which helped in abating the intensity and duration of the
headaches he was experiencing.  By the end of 2006 Mr. Trites began feeling
stronger and more confident and was on an upward trajectory for recovery.  However,
in December 2006, ICBC discontinued funding Mr. Trites’ efforts at rehabilitation
and refused to pay for any further physical treatments, gym passes, work boots
prescribed by Dr. Bull, medications and other related expenses.

[37]        
Mr. Trites’ income for 2006, as disclosed from his income tax records,
reveals an income of $30,673.92 for his employment with Britco.  Given his modest
income, other financial obligations and ICBC’s decision to discontinue funding
his rehabilitation efforts, Mr. Trites found himself unable to finance the cost
of all the necessary rehabilitation treatments that had assisted in his
recovery and had to discontinue the massage therapy, chiropractic treatments
and gym attendance.

[38]        
Although he recognized the value of attending the gym in order to
maintain his fitness level, Mr. Trites elected not to purchase monthly gym
memberships and instead budgeted to save for an annual gym membership which was
more cost effective.  Mr. Trites was simply not able to afford the medications,
treatments and monthly gym pass in the first half of 2007.

[39]        
In January 2007, Mr. Trites left his employment with Britco and joined
Ocean Park Mechanical in order to broaden his skill set in his apprenticeship
as a plumber.  Mr. Trites had reservations about the change as the work would
be more physically demanding; however, he also needed the broader experience
with a company that did plumbing in the construction of concrete high rise
buildings.  The change in employment also resulted in an increased wage for Mr.
Trites.

[40]        
The nature of the work at Ocean Park Mechanical required Mr. Trites to
perform much more physically demanding work, carrying heavier pipe, tools and
fixtures up flights of stairs, using heavy drills while standing on ladders and
in awkward positions, as well as being exposed to the outdoor elements.  The
combination of much heavier work, exposure to the elements and the cold of
working outdoors, a longer commute to work and the cessation of treatment
assistance and gym attendance caused Mr. Trites’ pain symptoms to increase. 
Specific employment activities that aggravated his pain symptoms included
having to do work with his arms over his head, carrying heavy items and forward
bending.  Mr. Trites was not able to tell his foreman about his difficulties
fearing it would have a negative impact on his work assessment and advancement
in his apprenticeship.  Mr. Trites did his best to carry on but found he had to
turn to taking his prescription painkillers while on the job in order to get
himself through his work day.

[41]        
Another factor that prevented Mr. Trites from continuing with massage
therapy and other treatments as well as going to the gym was the increased
costs associated with commuting a much longer distance to work.  While working
for Ocean Park Mechanical, Mr. Trites had to drive into the Vancouver/Richmond
area from Chilliwack.  He explained in cross-examination that he had a number
of other debts related to the purchase of the couples’ home as well as their
wedding and that for five weeks in March and April 2007, while attending the
course work component of his apprenticeship he was only receiving Employment
Insurance benefits, an amount that was only 40 to 50% of his regular wage.

[42]        
In April 2007, Dr. O’Connor reminded Mr. Trites of the need to continue
with his gym membership in order to continue a conditioning and strengthening
program to reverse the trend of slowly increasing back and neck pain since the
discontinuance of funding for treatment and gym memberships.

[43]        
Mr. Trites recalled that when he saw Dr. O’Connor in April 2007 he was
doing his five week classroom requirements for his third year level of
apprenticeship and thus was not working at the time.  He returned to work in
May 2007 and started to save for a gym membership.  By July 2007 he had
sufficient funds to purchase an annual gym membership and bought one
immediately when they went on sale.  Mr. Trites returned to attending the gym three
times a week at this time, and reinstated the training program developed for
him in the Work Hardening Program.

[44]        
In September and October 2007, Mr. Trites returned to the classroom for
the seven week level four course work.  Mr. Trites noted that his marks had
slipped a bit in this session, in part because he was having difficulty
concentrating due to pain in his neck and back, and that the seated classroom
work aggravated his symptoms.

[45]        
Mr. Trites completed his course work in the last week of October 2007
and returned to work at Ocean Park Mechanical for one and a half weeks. 
Thereafter he was laid off as the project had concluded.

[46]        
Mr. Trites immediately found employment with Rapid Plumbing, a company involved
in the construction of new residential premises in the Chilliwack area, and
began working there on November 13, 2007.  The work was physically demanding as
it involved bringing in services from the street to the residences, and thus
required digging trenches, shovelling gravel, installing main sewer lines to
drainage systems and related hook ups as well as the installation of the
various plumbing fixtures in the residences.  The outdoor work of digging
trenches and laying pipe caused Mr. Trites’ pain levels to increase and he once
again had to resort to using his narcotic pain medication while on the job. 
Although Mr. Trites was the second most senior person on the four man work crew
with Rapid Plumbing, his supervisor told him he needed to pick up his pace as
he working too slowly, a first year apprentice was laying more pipe than Mr.
Trites.  Mr. Trites was laid off from Rapid Plumbing approximately six weeks
later.

[47]        
Mr. Trites’ income for 2007, as contained in his 2007 Income Tax Notice
of Reassessment, increased to $48,150.

[48]        
In January 2008 Mr. Trites was re-hired by Ocean Park Mechanical and
worked with them until July 8, 2008.  He faced the same challenges that he
experienced in his previous period of employment with this company and his
difficulties were noticed by a co-worker, Dave Heppner.  During this course of
employment, Mr. Trites received another trigger point injection from Dr. Bull
in February 2008 to assist him with the headaches he was experiencing.

[49]        
Mr. Trites explained that in July 2008 he had to take a couple of days
off work to attend the examinations for discovery in this matter.  On the
following Tuesday, his employment with Ocean Park Mechanical was terminated.

[50]        
Mr. Trites was unemployed, although actively looking for work, until he
found employment with Saxon Mechanical on November 24, 2008.  His employment
income for 2008, as outlined in his 2008 Notice of Assessment was $34,013.96. 
He also had employment insurance benefits of $6,525 for a total income of
$40,538.96.

[51]        
Mr. Trites worked for Saxon Mechanical as a plumber at one job site in
Abbotsford from November 24, 2008 until January 2009.  After speaking to his
supervisor to request a day off for an appointment with a specialist and having
to advise of his difficulties due to the accident, he was transferred to a
different job site in New Westminster.  He remained on that job site until
March 2009 when he was again laid off.

[52]        
In order to achieve certification as a plumber Mr. Trites had to achieve
5620 Workplace hours and was also required to do course work each year – five
weeks each in the second and third year of his apprenticeship and seven weeks
in the fourth year of his apprenticeship.  Mr. Trites achieved the requisite
number of hours and had a total of 5800 Workplace hours with three different
employers, Britco Structures Ltd., Ocean Park Mechanical and Rapid Plumbing
between November 8, 2004 and January 4, 2008.  He was certified as a Plumber
and received his Plumber Inter-Provincial Red Seal Endorsement on November 5,
2008.

[53]        
As of the continuation of the trial of this matter, Mr. Trites had not
yet obtained employment, although he was actively looking for work, mainly in
the field of plumbing.  It should be noted that despite the January 2009
functional capacity assessment conducted by Ms. Jodi Fischer, an occupational
therapist, that contained an opinion that Mr. Trites was not suited for the
heavy labour demands of being a plumber, Mr. Trites continued to work in the
field until laid off in March 2009 and continued to look for work in this area,
as well as other areas of general labour or construction related activities,
even up until the continuation of the trial in October 2009.

[54]        
Ms. Fischer’s recommendation of re-training in another field of work
that is less physically demanding came as “a heavy blow” to Mr. Trites who
explained that he truly loves the plumbing trade and that he was raised not to
be a quitter.  I accept his evidence on this point.

[55]        
Mr. Trites’ evidence establishes his dedicated and strong work ethic
that started when he was in school and has continued to the present time.  He
outlined for the court his pride in his work as a plumber, a profession that he
chose because he found it so satisfying.  I have no doubt that he is passionate
about his chosen profession as demonstrated in his discussion about it in his
evidence and as demonstrated by his perseverance to finish his apprenticeship
and achieve the status of journeyman plumber notwithstanding the physical
difficulties he endured as a result of the injuries he sustained in the
accident.  He is distraught at the notion that he may well be unable to
continue in his capacity as a plumber indefinitely due to the ongoing
difficulties he experiences as a result of the injuries to his back and neck.

[56]        
Insofar as rehabilitation and treatment issues are concerned, Mr. Trites
was not in a position to immediately fund his own treatments in early 2007
after ICBC discontinued funding his rehabilitation efforts.  He returned to the
gym within six months after the funding had been discontinued.  In June 2008,
Mr. Trites returned to massage therapy on a regular basis.  He explained that
by this time he had had a couple of raises in pay and he realized it was
beneficial in alleviating some of his symptoms.  He received some money from
his mother to assist with the cost and also discussed the matter with his wife
and they agreed to find the money to fund the course of treatment.  Between
June 2008 and October 2009, Mr. Trites attended for massage therapy treatment
on at least a once a month basis, sometime bi-monthly and sometimes weekly.  He
wanted to also return to chiropractic treatments, Dr. O’Connor recommending as
much to him in April 2007, but he could not afford to fund this treatment
modality in addition to the massage therapy he had reinstated, the prescription
medications he was still heavily dependent upon and the gym membership he had
reinstated.

[57]        
Mr. Trites has been unable to return to any of his pre-accident
recreational activities such as hiking, skiing, snowboarding or camping due to
the continued pain he experiences from the injuries he sustained in the
accident.  He tried camping once with friends on the May 2006 long weekend but was
unable to tolerate more than one night.

[58]        
Since the accident, Mr. Trites has had difficulty performing various household
tasks including vacuuming, cleaning bathrooms, and doing more strenuous yard work
tasks like hedge trimming.  With his wife’s pregnancy in early 2009, Mr. Trites
endeavoured to take on more tasks to assist her, but found it took him much
longer to do and that some tasks, like cleaning in the bathroom areas, caused
an increase in his pain symptoms.  Although Mr. Trites tries to cut the lawn
and trim the hedges on their property, it takes him much longer to finish the
tasks than it would ordinarily without the difficulties with his back.

[59]        
Insofar as post accident gym activities are concerned, when Mr. Trites
returned to the gym in July 2007 he reinstituted his training program developed
in the Work Hardening Program.  This program includes 45 minutes of exercises
and weights for all muscle groups.  In addition, Mr. Trites has added in about
30 to 45 minutes of a cardio fitness component either through swimming or on a
cross-trainer machine as recommended by Dr. O’Connor.  Mr. Trites testified
that he does core stabilization exercises at home for about 20 to 30 minutes at
a time.  To do the core stabilization exercises, some of which have been recommended
by Dr. O’Connor, Mr. Trites uses a Swiss Ball and appears to employ a number of
Pilates style stabilization exercises as well.

[60]        
His evidence establishes that since returning to the gym he has
faithfully followed the recommendations made by the Fraser Valley
Physiotherapist to initially attend the gym three days a week.  In 2008, he
increased his attendance, on the recommendation of Dr. O’Connor, and averaged
between four and six days a week.  In September 2009, Mr. Trites reduced his
attendances at the gym to three to four days a week, on the advice of Dr.
O’Connor, in order to give his muscles an opportunity to rest.

[61]        
Although he has returned to the gym and uses both gym equipment and the
pool for his fitness training, Mr. Trites has not varied his workout program
since leaving the Work Hardening Program in the summer of 2005.  He would like
to be able to use the services of a personal trainer to update his workout
program but thus far has not been able to afford to do so.

[62]        
At the continuation of the trial in October 2009, Mr. Trites was
attending to massage therapy two times a month, seeing Dr. Bull on a monthly
basis and working out at the gym on a regular basis.  Despite all these
measures, he still relied upon the prescription medications of Percocet and
Flexeril to assist in pain management on a daily basis.  Mr. Trites testified that
the amount of medication he consumed varied on a daily basis depending on whether
he was working or not.

[63]        
When Mr. Trites moved to B.C. he weighed approximately 245 pounds and
had no difficulties with his back at that time.  Just prior to the accident Mr.
Trites’ weight had decreased to approximately 215 pounds.  Following the
accident his weight increased to a high of 244 pounds but by the time of continuation
of the trial in October he had decreased his weight, through changing his diet
and working out regularly, to about 225 pounds.  He finds, however, that this
reduction in his weight has made no difference to the lower back pain he
continues to experience from his injuries.

[64]        
Mr. Trites outlined in his evidence that as of October 2009 he still
deals, on a daily basis, with pain in his lower back.  The pain radiates up
into his shoulders at times and results in a dead zone of no feeling about five
centimetres below the base of his neck.  He still suffers from muscle stiffness
and pain in his neck and back and still gets headaches.  He endeavours to
control these symptoms through regular massage therapy, maintaining a fitness
regime at the gym, doing core stabilization exercises at home and consuming prescription
medication on a daily basis.

[65]        
Mr. Trites explained in his evidence that before the accident work was
not an issue for him, he could go to work, feel great at the end of the day and
do what he wanted in the evening and was able to look after the care and
maintenance of his apartment.  He explained that recreation wise, his weekends
were devoted to pretty much any outdoor activity and he really enjoyed the
pursuits of hiking, skiing, snowboarding, camping and hunting.  Since the
accident in May 2005, enjoyment of life for Mr. Trites has diminished significantly. 
He is no longer able to enjoy or properly do his work as plumber.  He is no
longer able to pursue his various recreational pursuits.  He finds he has to
rely upon his wife to do many of the household chores he did for himself.  His
relationship with his wife can be strained at times when his pain levels are
elevated and he finds himself “snapping” at her, a tone of delivery he
acknowledges she does not deserve.

The Evidence of Brynne Trites – the
plaintiff’s wife

[66]        
Brynne Trites testified that she had known Mr. Trites for approximately
six months before the accident.  Although they met once in 2003, through Mr.
Trites brother, they had no contact until Mr. Trites moved out to British
Columbia in 2004.  They re-met in December 2004 and started dating.  They
married in September 2006 and their first child was born in July 2009.

[67]        
Mrs. Trites said that before the accident, Mr. Trites was fun loving,
adventurous and very active and they frequently went on hikes and were involved
in a number of physical activities including skiing on weekends.  She outlined
for the court, Mr. Trites’ extensive rough housing play with her friend, Tel
Basi’s children before the accident and how he was unable to engage in such
play after the accident.

[68]        
Before the accident, Mr. and Mrs Trites would see each other every
weekend and endeavoured to spend as much time together as they possibly could and
being as physically active as possible.  There was never any lack of motivation
by Mr. Trites to engage in recreational activities.

[69]        
After the accident, Mr. Trites was unable to engage in their normal
recreational activities, even walking the trail along the Vedder River three
months after the accident proved to be too difficult for Mr. Trites.  Since the
accident, they have been unable to do any of their previous hiking, camping,
skiing and other outdoor activities.

[70]        
Prior to Mr. Trites’ accident, Mrs. Trites described him as very
affectionate, he would jump up to meet her when she arrived at his apartment,
and that they had a healthy and active intimate relationship.  Since the
accident, even this aspect of their lives has been adversely affected as a
result of the injuries Mr. Trites sustained in the accident.

[71]        
Mrs. Trites outlined in detail her observations of Mr. Trites two days
after the accident and also provided a fairly comprehensive picture of his
improvements through 2006, prior to ICBC discontinuing his benefits, and then
his seemingly downward spiral, when the benefits were discontinued.  The
downward spiral impacted all facets of their life in terms of physical symptoms
recurring, depressed emotional state and energy level, relationships with
friends being compromised as they no longer engaged in the same sort of
activities that they did prior to the accident, and a general inability to
engage in any sort of physical activity or household and yard work chores,
particularly those that required bending.

[72]        
Mrs. Trites was away on business when the accident occurred and did not
see Mr. Trites until about two days after the accident.  At that time he was
sore, hunched over, walking stiffly and taking his time to manoeuvre himself
around his apartment.  Their weekend plans of hiking were cancelled and they
were unable to be physically intimate due to Mr. Trites’ back spasms.  In the
weeks that followed, Mr. Trites’ physical symptoms persisted and continued to
interfere with his ability to engage in any sort of physical activity.

[73]        
Through the fall and winter of 2005 Mr. Trites’ condition did not
improve, he continued to have back pain that caused a grimace on his face, he
had difficulty sleeping and had to get up to relax his back.  Mrs. Trites
explained that Mr. Trites kept a “pain journal” during this time but that his
seeming lack of improvement took an emotional toll on him and so he
discontinued it.

[74]        
In the first half of 2006, Mrs. Trites did not notice a significant
improvement in Mr. Trites condition although he was attending the gym on a
regular basis and also engaged in massage therapy and some chiropractic care.

[75]        
In the late spring of 2006 the couple bought their home in Chilliwack,
the location in part selected for the planned hiking, camping and other outdoor
activities they enjoyed prior to the accident.  They moved in to their home on
the Canada Day long weekend and Mr. Trites was unable to do lifting of anything
but the lightest of objects.

[76]        
Mrs. Trites recalled that from the summer of 2006 onwards, Mr. Trites
was involved in physiotherapy, massage therapy, receiving injections in his
neck to alleviate the headaches and continued with his gym routine.

[77]        
The couple married in September 2006.  Mrs. Trites was aware that at the
end of 2006 ICBC discontinued reimbursing Mr. Trites for his various treatments
and prescription medications.  Up until this occurred, Mr. Trites appeared to
be progressing in his recovery, albeit slowly, but the gym as well as the
massage and chiropractic treatments were helping Mr. Trites keep mobile.

[78]        
In 2007, Mr. Trites changed employers, leaving Britco for Ocean Park
Mechanical, and although the position was a much better paying job, it was much
more physically demanding as it involved plumbing in the commercial
construction of high rise buildings.  It was also in the Lower Mainland and
required Mr. Trites to commute longer distances for work.  Upon his return home
from work, Mr. Trites would be agitated and need some “down time” to adjust. 
His back pain increased due to the work and the commute and his usual friendly,
cheerful and affectionate demeanour disappeared.

[79]        
Mrs. Trites testified that since 2007 she has not seen any significant
improvement in Mr. Trites’ symptoms.  She explained that both of them have had
to “find a new normal” since Mr. Trites injuries and they have to accept that
there are many things he is unable to do.  In addition to the physical toll the
symptoms have had on Mr. Trites and the couple’s ability to engage in their
pre-accident level of physical activity, there has been an emotional toll as
well in Mr. Trites’ inability to do what he used to do and how that impacts on
his mood.

[80]        
Mrs. Trites testified she was well aware of the physical benefits and
gains that Mr. Trites had from attending the gym in 2006.  She explained,
however, that once ICBC discontinued coverage for Mr. Trites’ treatments,
medications and gym membership, the couple had to carefully budget for a gym
membership and elected to save and purchase a year-long membership rather than
a monthly membership at the gym as that appeared to be a more cost effective
way of proceeding.

[81]        
The couple have had to structure and divide household chores to ensure
that Mr Trites’ symptoms are not triggered.  Gardening and yard work are
difficult for him and thus Mrs. Trites finds herself having to take on that
share of the chores.  Even assisting in the training and daily management of
the couple’s dog has proven to be difficult for Mr. Trites.  Mrs. Trites
expressed concern for the future in terms of Mr. Trites’ abilities to assist
with maintenance of the family home, parenting responsibilities and even more
fundamental, the ability to provide a consistent reliable income.

[82]        
In addition to all the other physical limitations that Mr. Trites has
experienced over the years since the accident, the couple’s ability to be
physically intimate has been compromised.  Not only did the frequency with
which the couple was intimate diminish considerably, the quality and
spontaneity of that intimacy was also profoundly affected.  And, when Mrs.
Trites advised her husband that the couple was finally expecting their first
child, rather than expressing joy and excitement over this development, Mr.
Trites’ initial reaction was to express his considerable relief that the couple
would no longer have to continue to try to conceive. Mrs. Trites’ evidence
about this difficulty was a particularly poignant glimpse into how this
accident has affected all facets of Mr. Trites’ physical and personal circumstances.

The Evidence of Ms. Tel Basi

[83]        
Tel Basi was Brynne Trites’ landlady in 2004 through to 2006 when Mrs.
Trites moved out of their basement suite and into her home with Mr. Trites. 
Although Ms. Basi was Mrs. Trites’ landlady, they were very close friends and
considered Mrs. Trites to be part of her family.  Ms. Basi met Mr. Trites in late
2004 when he began dating Mrs. Trites.  He would frequently spend the weekend
visiting Brynne at the Basi home.  Ms. Basi described Mr. Trites as friendly,
kind, generous and physically active prior to the accident in May 2005.

[84]        
Ms. Basi is the mother of four children who in 2005 were aged 7, 6, 4
and 2 years old.  When Mr. Trites was at the Basi home he spent a lot of time
playing with her children both in terms of board games while sprawled on the
floor and also acting as a human “jungle gym” allowing the children to climb
all over him, hang off his arms and flip them as they requested.

[85]        
Prior to the accident, Ms. Basi never saw Mr. Trites decline to play
with her children or push them away.  Nor had she ever heard Mr. Trites complain
about pain or injuries and did not see him behave in a lethargic manner.

[86]        
After the accident, Mr. Trites’ demeanour changed.  He did not play with
her children in the physical manner he had prior to the accident.  And,
although he engaged in board games with them on some occasions, they had to be
seated at a table rather than playing sprawled on the floor.  Ms. Basi observed
that in the months immediately after the accident and up until Mrs. Trites moved
out of their home in June 2006 that Mr. Trites was slow in his movements, his
back bothered him and he continued to take medication.

[87]        
In late June 2006 Mrs. Trites moved out of the Basi home and into the home
she had purchased with Mr. Trites in Chilliwack.  Ms. Basi and her husband
helped Mrs. Trites in moving her furniture and personal belongings onto a
truck.  Mr. Trites was unable to assist with moving anything due to his sore
back and acted as the overseeing organizer for the move.

The Evidence of David Heppner

[88]        
In September 2007 David Heppner was working as an apprentice plumber
with Ocean Park Mechanical on a five storey condominium development in
Richmond.  In the spring of 2008 he assisted Mr. Trites in running gas lines to
the various suites and the main lines out to the gas meter and lines outside. 
He described Mr. Trites as a patient supervisor who was meticulous in his work
and very specific in how he wanted Mr. Heppner to complete a job.

[89]        
Mr. Heppner testified that he could not help but notice when Mr. Trites
was in pain, that he would wince when doing certain moves such as lifting,
going up a ladder or pushing heavier items.  He noticed that Mr. Trites would
be very methodical in how he picked up heavy tools and equipment.  Mr. Heppner
described Mr. Trites as starting his day in a fairly “chipper” and ready to go
frame of mind but as the day progressed he became less talkative and by the end
of the day appeared to be “wrung out”.

[90]        
Mr. Heppner’s evidence confirmed Mr.Trites evidence as to the demanding
physical work required in the installation of gas lines as well as plumbing
fixtures such as toilets and bathtubs.  The tools used in this line of work are
for the most part awkward in size and shape.  Heavy lengths of gas line, pipes,
tools and fixtures had to be carried up five floors at the project in
Richmond.  He also described the physical strain involved in such tasks as:

                
i.         
 placing and wrenching black iron pipe;

               
ii.         
 using a threader on pipe;

             
iii.         
 drilling through concrete;

             
iv.         
 placing pipes into fittings;

              
v.         
 hammering a pipe in place;

             
vi.         
 working in cramped spaces like air shafts; and,

           
vii.                   
bodily positions that have to be maintained in cutting pipe, such as
reaching overhead with heavy tools or using hammer drills in an overhead
position.

[91]        
Mr. Heppner’s evidence leaves me with no doubt as to the physically difficult,
demanding and exhausting nature of the work associated with being a plumber and
a gas fitter.

Findings from the Evidence called by
the Plaintiff (other than the medical evidence):

[92]        
I accept the testimony of the plaintiff and those witnesses associated
with his personal and work life that the injuries Mr. Trites sustained in the
accident on May 26, 2005, incapacitated him as they described.  I find that
each witness called, including Mr. Trites, gave reliable, honest and
straight-forward testimony.  What emerges from a compilation of their disparate
observations and impressions is a body of evidence that clearly supports the reliability
and trustworthiness of Mr. Trites’ claims of injury and continued pain and suffering.

[93]        
I found Mr. Trites to be careful and forthright in his evidence.  It is
worth noting at this juncture that in addition to Mr. Trites’ viva voce evidence
on his continuing difficulties with pain and muscle stiffness, his demeanour
and physical bearing while testifying served to confirm the difficulties he was
still experiencing.  Mr. Trites could not turn his neck but had to awkwardly
turn his whole body when responding to questions.  He continually moved between
sitting and standing while testifying over the course of three and a half
days.  He was clearly physically uncomfortable and looked to be experiencing
some physical pain while in the witness stand.  When standing, he frequently
had to lean on the rail of the witness stand and repeatedly lifted his legs in
a stepping motion to move them.  I watched Mr. Trites carefully as he testified
and he did not appear to be exaggerating or malingering in his physical
movements.  I accept his evidence on the pain he continues to experience as a
result of the injuries he sustained in the accident.

[94]        
Mr. Trites clearly was an active and energetic young man who functioned
well in his personal and work life prior to the accident and without any
physical impairment.  He pursued the sports and other leisure activities he
enjoyed without any physical limitations or discomfort.  He worked physically
demanding hours in his apprenticeship at Britco with real energy and
determination and strived to be the best he could be, wanting to advance in his
chosen profession.  Since the accident he has stoically endeavoured to continue
to work as a plumber, in part out of necessity and in part due to his
dedication to his craft.  It is clear that he would very much like to continue
in the career he loves but it is also apparent from his evidence, and indeed
the totality of the evidence adduced, that he most likely will not be able to
do so without aggravating his current symptoms and relying on painkillers and a
variety of therapies to alleviate and control his symptoms.  I was not left
with the impression that Mr. Trites was malingering in any respect.  It is
clear that his first choice would be to continue in his profession as a plumber
at the intense physical level the profession demands.  It is also clear that he
would very much enjoy returning to the various recreational activities and
housekeeping activities he did prior to the accident.  Thus far, however, he
has been unable to do his work as a plumber without significant pain and reliance
on prescription pain killer medication.  He also has not been able to return to
his recreational pursuits.

[95]        
I further accept Mr. Trites’ evidence that in December 2006 he was still
improving, although not fully recovered, from the various symptoms that plagued
him as a result of the injuries from the accident, when ICBC elected to
discontinue funding his rehabilitation efforts.  Thereafter, I accept and find
that he did experience a setback in his recovery.  I further accept that he was
unable to fund all modalities of treatment plus expensive prescription
medication that had previously assisted him in his rehabilitation and pain
management and that he had no choice but to discontinue attending massage
therapy, chiropractic treatments and the gym given his financial circumstances
in the first half of 2007.

[96]        
Starting in July 2007, Mr. Trites returned to the gym and has maintained
a fitness regime since that time in an effort to alleviate and control the
symptoms he still experiences.  He has worked on reducing and managing his
weight since 2007, although his weight loss of 20 to 25 pounds has not assisted
in alleviating the symptoms he still experiences.  Since 2008 he has returned
to massage therapy as well, finding a measure of assistance and relief from his
symptoms with that therapy.  I accept that Mr. Trites has been doing everything
he can in an effort to improve his fitness level and reduce his weight and that
despite his efforts he has not returned to the level he was at in his recovery
when ICBC discontinued funding his rehabilitation efforts.

[97]        
The testimony of Brynne Trites and Tel Basi substantiated Mr. Trites’
evidence as to his inability to engage in the physical activities that he did
prior to the accident.  The evidence of both witnesses, Mrs. Trites in
particular and certainly in more comprehensive and longitudinal detail, points
to the real physical limitations of Mr. Trites that were not present prior to
the accident but readily apparent afterwards, in all facets of his life, from
playing with Ms. Basi’s children, engaging in a variety of recreational
physical activities with his wife and even in performing various household
chores.  Mrs. Trites confirmed Mr. Trites’ inability to sit comfortably for a
considerable period of time, even cuddling, and watching a movie have been
negatively affected.  And, their ability to be physically intimate on any sort
of spontaneous basis has also been negatively affected.

[98]        
Mrs. Trites was frank in her evidence, testifying that the injuries have
affected every single aspect of their lives together.  I found Mrs. Trites to
be a careful and pragmatic witness, not prone to exaggeration of what she has
observed in terms of the impact the injuries have had on her husband, the
difficulties he has experienced in working with continuing symptoms and his
seeming plateau since 2007.

[99]        
Mr. Heppner’s evidence is important from at least two perspectives.  His
evidence confirms the shear physicality of the work involved in being a
plumber, particularly one involved in the construction industry.  He also
provides objective confirmation as to Mr. Trites diminishing strength and
increasing pain throughout the course of the work day as he observed it when
working with Mr. Trites at Ocean Park Mechanical in 2008.

[100]     For these
reasons I accept the testimony of Mr. Trites and the other witnesses called on
his behalf to establish that he was pain and symptom free prior to the
accident, whereas after the accident he has had the physical difficulties that
he described and the other witnesses observed.  This evidence, in combination
with the reports of Dr. Bull and Dr. O’Connor, establishes that the cause of
Mr. Trites’ injuries, pain and discomfort, giving rise to the physical
limitations thereafter, was the accident.  The evidence also establishes and I
find that Mr. Trites continues to experience pain and difficulties with his neck
and lower back, including headaches, and is still fairly limited in terms of
the kind and duration of physical activities, sports, and basic household
chores and activities he is able to engage in.  Moreover he is limited in his
stamina and ability to perform the numerous physical tasks associated with the
demanding work of a plumber, including his ability to bend, manoeuvre in
confined spaces, and to lift and carry awkward and heavy objects and heavy
tools on a continual basis.  Until he was laid off in March 2009 by Saxon
Mechanical Mr. Trites was relying upon an increasing amount of prescription
narcotic painkillers to get himself through the work day, something that is likely
injurious to his own physical health and places not only himself but others co-workers
in jeopardy of unnecessary work hazards and the potential for employment
related accidents.

Medical and Expert Evidence adduced on behalf of the
Plaintiff

The Report and Evidence of the Plaintiff’s
Family Physician – Dr. Ronald Bull

[101]     Dr. Ronald
Bull, Mr. Trites family physician, prepared a report dated July 7, 2008, that
detailed the various attendances of Mr. Trites at his office related to the
soft tissue injuries to his neck and back sustained in the accident.  The
report documents, and Dr. Bull detailed in his evidence, his various
observations of Mr. Trites condition as well as the treatments he prescribed
following the accident.  June 2, 2005 was Mr. Trites first visit to Dr. Bull
following the accident.  Observations at that time included the following:

…he was noted to be stiff and
sore.  He was tender from the base of his neck down his back to the sacroiliac
joints of his pelvis.  Back muscles were tense and in spasm.  He had marked
limitations in back mobility.  He found bending forward particularly difficult
because of spasm in his back.  His range of neck movement was compromised by
pain.

[102]     Mr. Trites
had been prescribed Flexeril, a muscle relaxant, when he attended a walk-in
clinic after the accident.  This medication was continued and Percocet was
prescribed as a pain killer instead of extra strength Tylenol which was not
relieving the pain.  Physiotherapy was also prescribed.

[103]     After this
initial visit, Mr. Trites had regular attendances at Dr. Bull’s office on 15
occasions for 2005.  Mr. Trites experienced difficulties with headaches,
insomnia, neck pain and back pain throughout this period.  Massage,
physiotherapy and chiropractic interventions as well as regular work outs
assisted in alleviating the symptoms but not in eradicating them.  In addition,
Mr. Trites was prescribed medications of Percocet, Flexeril and Ativan to
assist in relieving his continuing pain symptoms and insomnia.

[104]     Dr. Bull
noted that Mr. Trites did progress and improve while in the Work Hardening
Program in the summer of 2005.  However, despite regular attendances at
physiotherapy, massage therapy and completion of the Work Hardening Program by
the end of July 2005, Mr. Trites was not ready for a return to work in August
2005.  Dr. Bull recommended a gradual return to work but that was not possible
with Mr. Trites’ employer.  Mr. Trites did a full return to work on September 14,
2005.

[105]     Mr. Trites
saw Dr. Bull on 12 occasions in 2006.  Due to the chronic nature of Mr. Trites
headaches, neck and back pain, Dr. Bull referred Mr. Trites to Dr. O’Connor in
the early part of 2006.  Over the course of the year there was some improvement
in his back and neck symptoms, and the headaches had become more manageable due
to Dr. O’Connor starting a course of trigger point injections on Mr. Trites’ neck
in June 2006.

[106]     On July
27, 2006, Dr. Bull wrote to the ICBC adjustor handling Mr. Trites claim and
advised of Mr. Trites referral to Dr. O’Connor and his opinion that Mr. Trites
would improve gradually over the next one to three years but that the progress
would be slow due to facet joint irritation at several vertebral levels in both
the cervical and lumbar spine.  Mr. Trites was noted to have continuing low
back pain.  It was reported that he also had lingering neck pain but it had
diminished considerably.

[107]     Dr. Bull
testified that ICBC’s December 2006 decision to discontinue funding Mr. Trites’
various therapies set back his recovery at that time. On March 5, 2007, Dr.
Bull wrote a letter for Mr. Trites to give to ICBC outlining the need for him to
continue with his gym program overseen by a personal trainer, describing it as
an essential part of his ongoing therapy and keeping him at work.

[108]     Between
January 2007 and July 7, 2008, the date of his report, Dr. Bull saw Mr. Trites
on 18 occasions in relation to his ongoing symptoms from the accident.  After
the report was prepared Dr. Bull continued to see Mr. Trites on a regular basis
and by the time of the trial noted that Mr. Trites symptoms of neck and low
back pain continued to persist.  He described Mr. Trites recovery as having
reached a plateau.  Despite Mr. Trites being out of work in 2009 and still
continuing with his regular gym routine he continued to have symptoms of neck
and low back pain that limit his movement and ability to work quickly.  The
persistence of the symptoms continued to interfere with Mr. Trites’ ability to
do the more physical tasks of yard work and repairs around the home and
continued to prevent him from returning to his various recreational outdoor
pursuits.

[109]     In
cross-examination, Dr. Bull agreed that Mr. Trites informed him of a previous
motor vehicle accident in 2000 where his knees had been injured and further
agreed that Mr. Trites had mentioned his knees were hurt again in the 2005
accident but that the pain did not persist for any significant period of time.

[110]     In
addition to the physical examinations conducted on Mr. Trites, Dr. Bull
examined various X-rays of Mr. Trites’ spine taken in August 2005 and again in
June 2008.  The August 2005 X-ray confirmed a thoracic curve in Mr. Trites’
spine, and lordosis (pelvic tilt) had been observed by Dr. Bull in his June
2005 examinations.  The June 20, 2008 X-ray confirmed that Mr. Trites’ L5
vertebrae was sliding forward and that his thoracic spine was curving to the
right.  It was Dr. Bull’s opinion that this was caused by the continuing muscle
spasms Mr. Trites experienced as a result of the accident.

[111]     It was Dr.
Bull’s prognosis that since the neck and back pain symptoms had plateaued and
continued to persist four years post-accident it did not bode well for a
complete recovery by Mr. Trites.  Dr. Bull hoped that in the future the
persistent symptoms Mr. Trites had thus far experienced might ease up with
continued treatment through massage, physiotherapy, chiropractic and other
treatment modalities as well as regular gym attendance and continued resort to
prescription medications.

[112]     Insofar as
future care of Mr. Trites is concerned, Dr. Bull was of the opinion that it is
essential that Mr. Trites continue with his physical program at the gym, he
would continue to benefit from intermittent massage therapy treatment and
occasional chiropractic manipulation.  Dr. Bull further opined that Mr. Trites
would require these sorts of activities indefinitely in order to continue with
his work as a plumber.  Dr. Bull testified that in addition to these modalities
of treatment, Mr. Trites would benefit from reviews of his exercise program
with a kinesiologist or physiotherapist in order to ensure his posture is
correct and that all muscle groups are being used.  Dr. Bull noted that at the
time of the trial Mr. Trites still required prescriptions for Flexeril as a
muscle relaxant and Percocet as a pain reliever, although simpler analgesics
may be resorted to at some point in the future.  He was unable to place any
specific time frame on how long these various treatments might be required
noting that “it could be five years it could be twenty years”.  Finally, Dr.
Bull indicated that psychological counselling might well be of benefit to Mr.
Trites.  Although Dr. Bull had not noted any specific depression, he agreed
there was an element of discouragement to Mr. Trites and certainly a risk of
depression.

The Report and Evidence of the Plaintiff’s
Physiatrist – Dr. Russell O’Connor

[113]     Mr. Trites
was referred by his family doctor to Dr. O’Connor, a physician with a specialty
in physical medicine and rehabilitation.  A detailed report of Dr. O’Connor’s
findings and prognosis is dated July 29, 2008.

[114]     Dr.
O’Connor first saw Mr. Trites in April 2006 and initially provided treatment
advice and management and then trigger point injections.  He saw Mr. Trites on ten
occasions between April 10, 2006 and July 29, 2008.

[115]     In April
2006, Dr. O’Connor noted that Mr. Trites was experiencing headaches and neck
pain, mainly on the right side although bilateral overall.  Upon examination in
April 2006 Mr. Trites was tender in the mid back at T3, T4 and T5, more on the
right than left side and had similar tenderness over the lower lumbar segments
of L4, L5 and S1.  This tenderness was worse with extension and with extension
and rotation to the right side.

[116]     In June,
July, September and November 2006, Dr. O’Connor conducted a trial course of
trigger point injections on Mr. Trites in his suboccipital and neck extensor
areas.  This course of therapy provided approximately a 70% improvement in
alleviating Mr. Trites headaches and neck pain symptoms.  Trigger point
injections were used, in part, as a tool to increase tolerance for active
rehabilitation measures such as regular exercise.  Contemporaneous with this
course of treatment was Mr. Trites’ regular attendance at the gym and engaging
in a strength and conditioning program.  By November 2006 Mr. Trites was
gaining ground and reporting a 90% improvement in his headaches and a 70%
improvement in his neck pain.

[117]     Dr.
O’Connor was aware that ICBC discontinued the benefits of the gym pass,
chiropractic treatments, massage therapy and medications in December 2006. 
When this happened, it was Dr. O’Connor’s opinion that Mr. Trites lost his
“centre of control” and started a slow, steady decline and regressed in his
rehabilitation.  Although Mr. Trites returned to the gym in July 2007, by the
time of trial Mr. Trites had not returned to the level of recovery he had
attained in November 2006.

[118]     By the
time of the last examination and assessment in July 2008, Dr. O’Connor noted
that Mr. Trites was still experiencing symptoms of low back pain, neck pain on
the right side, headaches several times a week related to the neck pain and mid
back pain between the shoulder blades.

[119]     In July
2008, Mr. Trites reported to Dr. O’Connor that he was consuming on a daily
basis two to four tablets each of Percocet and Flexeril to help alleviate the
pain symptoms he was experiencing and to allow him to continue with his
physical work as a plumber.  Dr. O’Connor was of the opinion that this was
heavy usage which may have resulted in developing a tolerance to the
narcotics.  Dr. O’Connor recommended that there be a gradual reduction to
elimination of the narcotics but could not guarantee that non-narcotic
medications would sufficiently alleviate the pain, in which case Mr. Trites
would have to return to using narcotic medications to address the pain.

[120]     Physical
examination of Mr. Trites at the time of Dr. O’Connor’s July 29, 2008
assessment revealed that Mr. Trites still experienced tenderness upon palpation
of the C3, C4 and C5 facet joints in his neck, the L4-L5 and S1 segments of the
lumbar spine and mild tenderness at the mid thoracic spine area.  Strength
testing revealed a moderate weakness in Mr. Trites’ abdominal core musculature.

[121]     In
cross-examination Dr. O’Connor noted that it was not unusual for patients with
back pain to have reduced abdominal strength and indicated that a general
fitness program was more important than a program that just concentrated on the
abdominal core muscles.

[122]     Dr.
O’Connor also noted that Mr. Trites was overweight in July 2008 and had an
elevated blood pressure both of which needed to be watched and addressed.

[123]     Dr.
O’Connor noted in his report under the headings of “Disability” and “Prognosis”
the following significant points about Mr. Trites:

·      
the neck pain appeared to be localized to the C3, C4 and C5 level
and the lower back pain was consistently a problem at the L4-L5 and S1 levels;

·      
there was a reduced capacity for twisting and extended positions
where he is extending his back and neck, due in part to abdominal core weakness;

·      
rotation, heavy lifting and the work activities required of a
plumber aggravate his symptoms on an ongoing and daily basis;

·      
although capable of full time work it is with chronic pain and
ongoing use of pain medications;

·      
although still managing heavy lifting at the time of his report,
Mr. Trites would be able to tolerate this better if he engaged in a more active
strengthening program and lost approximately 30 pounds;

·      
the fact that Mr. Trites’ symptoms had not improved or resolved
three years after the accident was a poor prognostic sign such that the
chronicity of the symptoms after three years made it more likely than not that
the symptoms would persist indefinitely; however, levels of physical activity
would influence the degree of the symptoms;

·      
it was difficult to determine how well Mr. Trites would tolerate
heavy lifting in the future as a plumber, although it was his impression that
Mr. Trites would be able to tolerate heavy lifting, bending and twisting less
with the passage of time as generally patients with chronic back pain tolerate
such activities less as time goes by.

[124]     Despite
the chronic nature of the pain symptoms he was experiencing, Dr. O’Connor was
of the opinion that it was still more likely than not that Mr. Trites would be
able to continue to manage in his chosen profession as a plumber particularly
if he works on an ongoing strength and conditioning program focusing on his
neck, back and abdominal musculature.  Dr. O’Connor conceded that his bias was
one of active treatment through regular strength training and exercise
supplemented by secondary modalities such as massage therapy if it provided
relief as well as work with a kinesiologist and a personal trainer to ensure
that exercises are being done properly and that the exercise regime is changed
on a regular basis.

[125]     Dr.
O’Connor estimated a 25% chance of the “worst case scenario” being that Mr.
Trites would not be able to manage a further weight loss program, would not be
able to further strengthen his back and would have ongoing chronic pain such
that with the passage of time he would be less able to tolerate the heavy
aspects of the plumbing trade.

Findings in relation to the Plaintiff’s
Medical Evidence:

[126]     I found
that Dr. O’Connor, a very experienced specialist in physical medicine and
rehabilitation, was thorough and careful both in his written opinion and in his
evidence.  Dr. Bull, a very experienced physician practicing in family medicine
and, until 2000, an emergency room physician, was also thorough and careful in
his written opinion and in his evidence.  I found both doctors testified in an
objective and professional way.  Neither doctor was shaken in their overall
opinion on cross-examination.  I accept Dr. Bull’s opinion and the opinion of
Dr. O’Connor as to the cause and nature of the injuries sustained by Mr. Trites
in this accident and their prognosis for his future recovery.

[127]     Dr. Bull’s
report, notes and his testimony support a finding that Mr. Trites sustained
moderate soft tissue injuries to his neck, mid back and lower back in the accident. 
His evidence supports a finding that Mr. Trites was, as of the trial date, four
years post-accident, still regularly exhibiting symptoms such that he has yet
to completely recover from the accident.  Dr. O’Connor’s report and evidence
support this finding as well.  He described the injuries sustained by Mr.
Trites in the accident as musculoligamentous strain to the neck and low back
with a mixed chronic mysofascial pain involving the neck and back as well as
tenderness over noted facet joints of the spine.

[128]     On the
evidence of both Dr. Bull and Dr. O’Connor it is clear that Mr. Trites was making
progress in his recovery through November 2006.  ICBC’s decision in December
2006 to discontinue paying various treatment and gym benefits resulted in Mr.
Trites suffering a significant setback as he clearly was unable to fund all
modalities of treatment, medication and exercise regimes.  For a period of
approximately seven months Mr. Trites did not attend the gym or engage in his
exercise regime but by July 2007 he returned to the gym and started to work on
improving his fitness level and reducing his weight.

[129]     From the
totality of the medical evidence adduced by the plaintiff, it is clear that
although Mr. Trites suffered a setback in the early part of 2007, he
nevertheless returned to trying to improve his physical condition.  Despite his
focus and dedication to improving his condition, rehabilitation and reducing
his weight, Mr. Trites continues to suffer neck and lower back pain to such an
extent that he still relies, on a daily basis, upon prescribed narcotics to get
through his work day.  Thus his continuing pain symptoms can properly be
described as chronic.

[130]     The
prognosis for a full recovery from these injuries is guarded.  Indeed both
doctors opine that given the length of time that has elapsed since the accident,
the symptoms that have plagued Mr. Trites will, more likely than not, continue
indefinitely.  Given the chronicity of the symptoms, it is more likely than not
that Mr. Trites will continue to experience these pain symptoms, particularly
if he continues to work as a plumber as the nature of this work contributes to
aggravating the symptoms.  Significantly, although Dr. O’Connor expressed the
opinion that Mr. Trites could continue to work as a plumber, he noted that the
required heavy lifting and rotational work would aggravate Mr. Trites’ back and
neck symptoms on an ongoing and daily basis.  And, although Mr. Trites could
continue to work full time as a plumber, Dr. O’Connor noted that it would be
with chronic pain and ongoing use of medications.  Over time, Mr. Trites’
ability to tolerate heavy lifting, bending and twisting might diminish as he
ages.

[131]     Both
doctors were of the opinion that management and reduction of the pain symptoms
will be achieved through a continuing exercise regime that improves core
stability as well as a variety of other treatment modalities including massage
therapy, physiotherapy, chiropractic interventions, use of a kinesiologist and a
personal trainer to assist in forming and monitoring a proper exercise regime.

[132]     I accept
the evidence and opinions of these two doctors who were very careful in their
evidence but unshaken in their assessments of Mr. Trites’ ongoing condition.  I
find that their evidence establishes that Mr. Trites suffered moderate soft
tissue injuries to his neck and back as a result of the accident.  I find their
evidence, based on their assessment and observations from their repeated
physical examinations and treatment of Mr. Trites, establishes that he
continues to suffer from pain symptoms particularly in his neck and lower back,
notwithstanding his efforts at weight reduction, improvement of physical
fitness through regular exercise programs, and attendances at other treatments
such as massage therapy.  I find that on the totality of the medical evidence
adduced that Mr. Trites continues to suffer from ongoing physical pain and the
physical limitations as described by these two doctors and that the prognosis
for full recovery in the future, given the length of time the symptoms have
remained present, is guarded.

The Report and Evidence of the Functional
Capacity Evaluator – Ms. Jodi Fischer

[133]     Ms. Jodi Fischer,
a registered occupational therapist, was qualified as an expert in functional
work capacity and life care planning.  Ms. Fischer conducted a day long
Functional Capacity Evaluation of Mr. Trites on January 27, 2009 that included
about 8 ½ hours of functional testing.  Ms. Fischer prepared a comprehensive
report dated January 30, 2009 that outlines her observations from the testing
she conducted and contains her opinion as to Mr. Trites’ ability to continue in
his chosen profession as a plumber.  Ms. Fischer also provides a detailed
opinion as to various future care options that are necessary to improve and
maintain Mr. Trites’ overall physical condition since suffering the injuries in
this accident.

[134]     In
addition to conducting a battery of physical strength and agility tests over
the course of the day long assessment, Ms. Fischer also reviewed the clinical
records and reports of the medical experts called by the plaintiff as well as
the clinical records of the physiotherapy centre that Mr. Trites attended and a
variety of other records and correspondence materials.

[135]     The
physical testing that Ms. Fischer conducted upon Mr. Trites was wide ranging,
comprehensive and contained an element of placebo testing as well to determine
intention and exertion capabilities.  Ms. Fischer’s functional testing measures
concentration and physical abilities, including crouching, kneeling, lifting,
twisting, rotating, carrying and a variety of tests designed to simulate, as
best as she could, a full work day in order to properly assess work tolerance
not only at the beginning of the work day but also at the end of it.  The
following were some of the tests employed by Ms. Fischer in her evaluation of
Mr Trities’ abilities:

                          
i.         
isometric grip strength testing;

                         
ii.         
cardiovascular measures of effort;

                       
iii.         
active range of motion screening;

                       
iv.         
fitness tests including hamstring/spinal flexibility, body mass index,
back flexibility, upper abdominal strength, hip flexor flexibility;

                        
v.         
repetitive movement reaching tests of overhead and forward reaching as
well as vertical reaching;

                       
vi.         
Valpar 9 Sustained Reaching tests at various heights;

                     
vii.         
Valpar 202 Assembly and Disassembly tests for light strength handling;

                    
viii.         
the Complete Minnesota Dexterity Test;

                       
ix.         
a variety of body dexterity and lower limb co-ordination tests including
a 50-Foot Walk Test, stair and ladder climbing, balance, stooping and bending,
kneeling, crouching and crawling;

                        
x.         
a variety of strength tests to measure lifting, carrying, pushing and
pulling ability; and,

                       
xi.         
sitting and standing tolerance observations.

[136]     Ms. Fischer
reported that overall, Mr. Trites showed a significant deterioration in his back
function in the latter stages of his testing day.  At the conclusion of his
testing he had to take medication consisting of two Flexeril and one Percocet
pill.  He repeated this dosage when he arrived home in the evening and again
the next morning, as reported to Ms. Fischer, in order to cope with increased
spinal symptoms.

[137]     Based upon
her interview findings, the clinical results of functional testing, her
clinical observations during the testing and her experience as an occupational
therapist Ms. Fischer noted that Mr. Trites put in a full level of physical
effort during the assessment.  The objective test findings confirmed Mr.
Trites’ reports of difficulty with his work demands and slow working speed. 
Essentially, Ms. Fischer’s testing confirmed a notable decrease in Mr. Trites
functional capacity or ability to work as the day progressed.  Although initial
testing results at the start of the day demonstrated an ability to perform
various tasks, as the day progressed and the tests were repeated, a decline in
physical capabilities was evident.

[138]     Although
able to perform moderate periods of reaching and handling activity throughout
the day, Mr. Trites was not able to work at a sustained level with long and
repeated intervals of static reaching at eye level or overhead or reaching
below mid thigh level which required bending his torso.  In terms of static
trunk bending, Mr. Trites was capable of moderate periods of static
mild-moderate trunk bending and limited to short intervals of more extreme
bending (45 degree angle at the waist or greater).  Ms. Fischer concluded that
Mr. Trites was not well suited to jobs that require him to assume static
bending postures for long or repeated intervals throughout the day.  In the
latter stages of the assessment, Mr. Trites had difficulty tolerating static
bending postures and worked at a slow pace.

[139]     Although
capable of assuming basic crouching and kneeling positions, it was Ms.
Fischer’s opinion that he was not well suited for employment that requires
working in such positions for long intervals throughout the day.  Insofar as
crawling was concerned, Mr. Trites is limited to occasional crawling only.

[140]     On the
strength testing component of the assessment, Ms. Fischer concluded as follows:

While Mr. Trites demonstrated
the ability to perform strength activity in the entry level Heavy strength
category, this was with significant neck and back pain and late day functional
decline. …. Involvement in Heavy work will only serve to increase his
symptoms.

[141]     Ms.
Fischer recommended that Mr. Trites limit himself to employment in sedentary,
light and medium strength categories.  She provided a caveat with respect to
medium strength category work as maintaining heavier weights below shoulder
level, maintaining loads close to his body, avoiding trunk twisting, and
avoiding long intervals of repetitive lifting.

[142]     Ms.
Fischer outlined in her report the physical demands required of a plumber as
outlined in both the National Occupational Classification system and the
Dictionary of Occupational Titles.  In essence, Mr. Trites’ own occupation, and
indeed his description to Ms. Fischer and his testimony in court, establish
that he is required to perform critical physical demands as a plumber including
prolonged overhead reaching (often requiring him to use force with a heavy
drill or wrench), static bending, crouching, static standing on a ladder, heavy
lifting and carrying of pipes, tools, hot water tanks, bath tubs and toilets.

[143]     Ms.
Fischer noted that Mr. Trites’ Body Mass Index was heavier than the healthy
range, he was about 20 pounds heavier than his pre-accident weight and
exhibited symptoms of cardiovascular de-conditioning.  In cross-examination she
noted that a 10% weight gain was not significant for Mr. Trites although she
agreed that weight loss can assist in reducing pain symptoms.  She noted that
Mr. Trites had lost some weight and that he appeared to be making a concerted
effort to continue to do so.  Insofar as cardiovascular de-conditioning
exhibited by Mr. Trites was concerned, Ms. Fischer testified that this did not
indicate he was unable to handle the cardiovascular requirements of his job,
rather it was simply indicative of room for improvement.  Ms. Fischer indicated
that notwithstanding working out on a regular basis, if pain interferes or
limits the abilities of a person in their work out, they may not be able to
raise their target heart rate on a sustained basis and thereby not improve
their cardiovascular conditioning and health.

[144]     Ms.
Fischer noted that Mr. Trites’ upper abdominal strength was only “fair” but
also testified that this component of the testing is difficult for a large
number of people who only attain a “poor” result.  Mr. Trites’ score of fair
was consistent with his maintaining an exercise regime at home that involved the
use of a core stability ball.

[145]     Ms.
Fischer provided the following opinion of Mr. Trites’ abilities to continue in
his chosen profession:

Mr. Trites is clearly performing work as a Plumber out of
financial necessity and lack of any other career options, rather than full
physical suitability.  During his Work Capacity Evaluation, he presented with
reduced tolerance for prolonged eye/overhead reaching and static bending, which
are the primary critical physical demands associated with this line of work. 
He also did not demonstrate the ability to meet the Heavy strength demands of
his occupation.

In addition, after multiple
hours of involvement in work simulation testing activity, he showed a decline
in his level of function.  He could not maintain a productive work rate
throughout the day, particularly when required to work in a static bending
posture.  His walking speed was also slower at the end of the day and his trunk
range of motion had significantly declined due to increased low back pain.

[146]     Ms.
Fischer also noted that Mr. Trites’ heavy strength testing was not well
tolerated.  She recommended that Mr. Trites re-train to a more physically
suitable occupation and pursue less physically demanding employment in an
effort to manage his pain symptoms.  She opined that Mr. Trites’ overall
situation would likely improve if performing a less physically demanding job. 
Ms. Fischer noted that Mr. Trites’ difficulties in his current vocation also
compromise his functional abilities in all other aspects of his life as his
work as a plumber continually aggravates his neck and back.

[147]     In respect
of future care requirements, Ms. Fischer recommended that Mr. Trites be
provided the following modalities of treatment and intervention, most on an
indefinite basis:

                          
i.         
an annual gym membership;

                         
ii.         
eight personal training sessions a year to develop, review, and adjust a
physical training program and maintain Mr. Trites’ motivation and training at
the gym;

                       
iii.         
three sessions with a kinesiologist to ensure that Mr. Trites is
exercising as effectively as possible;

                       
iv.         
8 to 12 sessions of psychological counselling;

                        
v.         
massage therapy either on a weekly basis if he continues to work as a
plumber or every other week if employed in a less demanding vocation;

                       
vi.         
ongoing funding for prescription pain and anti-inflammatory medication
as required and prescribed by his physician; and,

                     
vii.         
vocational rehabilitation counselling to identify alternate career
options.

[148]     I find
that Ms. Fischer’s opinion and observations from her comprehensive assessment
of Mr. Trites in January 2009, which I accept, serves to reinforce and
underscore the opinion of Dr. Bull and Dr. O’Connor insofar as Mr. Trites’
ability to work as a plumber is concerned.  Continuing in this capacity,
although perhaps doable for the short term will likely require significant
amounts of therapy and medication and over the long term may not be
sustainable.

The Report and Evidence of the Vocational
Consultant – Dr. Quee Newell

[149]     Dr. Colleen
P. Quee Newell, a vocational consultant and counselling psychologist, conducted
a vocational assessment of Mr. Trites on February 4, 2009.  Her observations
and opinions from that assessment are contained in her March 16, 2009 report.

[150]     Prior to
meeting with Mr. Trites, Dr. Quee Newell undertook an extensive file review to
obtain an understanding of the medical information and his functional
capacity.  Mr. Trites was then interviewed and also completed a variety of
vocational assessment and aptitude tests.  The testing process assists in
assessing, among other things, the client’s occupational aptitude, academic
abilities and non-verbal intellectual functioning.  In addition to the tests,
file review and interview, Dr. Quee Newell conducted independent occupational
research to determine what skills were transferrable and also market research
as to employment potential.

[151]     It should
be noted that Mr. Trites is a relatively young man with many working years
still ahead.  Based on her overall assessment, Dr. Quee Newell noted that Mr.
Trites works best at his own pace and with verbal direction as opposed to
written direction.  Due to his diagnosed conditions of dysgraphia and dyslexia,
Mr. Trites is not suited for positions that involve reading and paperwork and
thus clerical work is not an appropriate line to pursue.  This limitation
narrows Mr. Trites’ vocational scope, limiting fields he could potentially
transfer into from his current occupation as a journeyman plumber.

[152]     Dr. Quee
Newell concluded that the results of vocational testing suggest that Mr. Trites
is likely best suited to unskilled or semi-skilled occupations that can be
accessed on a direct-entry basis or following a short, practically oriented
training program.

[153]     Dr. Quee
Newell was of the opinion that the best vocational scenario, with continuing
participation in an exercise programme, would be for Mr. Trites to continue
working as a plumber.  However, she noted that as Mr. Trites was still
experiencing ongoing pain symptoms nearly four years post accident, his ability
to continue working in commercial and residential plumbing was likely
compromised and, if he could not continue in this capacity, it would represent
a significant vocational loss.

[154]     Dr. Quee
Newell suggested that Mr. Trites might be able to do less physically demanding
work within the plumbing trade by restricting himself to employment as a
residential service plumber on an on call basis or as a maintenance plumber
maintaining and repairing systems for schools or hospitals or factories. 
However, restricting his work to a specific field of specialization within the
plumbing trade would have the effect of narrowing the range of employment
options for Mr. Trites and thereby decreasing his employment potential within
the trade.

[155]     Dr. Quee
Newell also recommended that as Mr. Trites has his gas fitter’s B licence, he
might be able to compete for work within this “small, medium strength
occupation”.  However, Dr. Quee Newell was concerned that Mr. Trites might not
be able to manage the body dexterity requirements for this line of work.

[156]     Dr. Quee
Newell concluded that Mr. Trites’ career options were limited to careers that
did not involve a lot of paperwork and that he may have to re-train in a
different trade that does not require heavy physical exertion.  Based on her
research and overall assessment of Mr. Trites’ aptitude and ability, she
suggested that Mr. Trites could consider employment as a cabinetmaker because
this trade does not require the same body dexterity as that performed by
plumbers and gas fitters.  Should Mr. Trites pursue this line of work, she
noted that his earning potential would be considerably lower than that of a
plumber.

[157]     If Mr.
Trites were to re-train as a cabinetmaker the cost of BCIT’s 25 week Joinery
Foundation programme would be $3,052 plus an additional $1,003 for books and supplies
for a total of $4,058.

[158]     Dr. Quee
Newell also recommended further career counselling to explore different career
options, make a well-informed career decision and develop a viable vocational
plan.   This would require a further eight to twelve hours of professional time
at a rate of $75 to $125 per hour in the private sector.

[159]     Dr. Quee
Newell’s evidence assists in the assessment of the issue of loss of future
earning capacity.

The Report and Evidence of the Consulting
Economist – Douglas Hildebrand

[160]     Douglas
Hildebrand, an expert in consulting economics, prepared two reports, both dated
March 27, 2009, that outlined his calculations and conclusions on future income
loss and the cost of future care and the calculations and assumptions employed
in arriving at those figures.

[161]     Mr.
Hildebrand’s approach was to provide examples of scenarios for assessing loss
of capacity.  In arriving at the figures he provided, Mr. Hildebrand factored
in both positive and negative contingencies including non-wage benefits,
inflation, the likelihood of unemployment, part-time employment and an
inability to work.  Mr. Hildebrand provided a future earnings estimate for
plumbers and gas fitters based on the average statistical earnings of B.C.
males employed in that capacity.  He obtained the full time full-year earnings
for these positions from Statistics Canada’s 2006 Census.  Based on the
adjustments for labour market contingencies and adjusting earnings to 2009
dollars, Mr. Hildebrand then calculated expected earnings over the duration of
a plumber and gas fitter’s career starting at age 34 and retiring at age 65.

[162]     Absent-accident
future earnings and benefits for a B.C. male plumber were calculated to be
$1,023,746.  Absent-accident future earnings and benefits for a B.C. male gas
fitter were calculated to be $1,111,173.

[163]     Mr.
Hildebrand also provided an estimate for lifetime earnings for B.C. male cabinetmakers
based on the 2006 Census figures but adjusted the earnings delay by 10 years to
reflect Mr. Trites likely late entry into this occupation relative to his age
peers.  Future earnings and benefits for a B.C. male cabinetmaker were
calculated to be $691,669.

[164]     Mr.
Hildebrand then provided projections for with-accident earnings adjusted to
reflect Mr. Trites’ impairments suffered in the accident.  Mr. Hildebrand
provided a reduction to full-time full year of 20% to reflect Mr. Trites’ lower
than average earnings dues to his impairments from the accident.  Mr.
Hildebrand also adjusted the unemployment rates by a factor of 3 in this
calculation.  Mr. Hildebrand calculated a decrease of approximately $10,924 on
a per annum basis as between a plumber without accident and a plumber with
accident and a decrease of $11,955 on a per annum basis for a gas fitter.  Mr.
Hildebrand then applied a multiplier approach which he calculated as a factor
of 17.018 that he multiplied against a fixed annual loss of income to determine
a present-day lump sum value for the annual income loss.  This multiplier
approach does not factor in the risk of unemployment due to the injuries
sustained from the accident.

[165]     Mr.
Hildebrand calculated the statistical earnings projections for with-accident
future earnings and benefits for a B.C. male plumber to be $788,460.  The
figure for with-accident future earnings and benefits for a B.C. male gas
fitter was calculated to be $844,785.  The figure for with-accident future
earnings and benefits for a B.C. male cabinetmaker was calculated to be $691,669.

[166]     Mr.
Hildebrand then provided an estimate of future income and benefits loss as
between these trades and arrived at the following future loss projections. 
Based on his calculations for the projected earnings of a plumber
absent-accident and with-accident, Mr. Hildebrand estimated a future loss of approximately
$235,286.  Comparing the projected earnings of a plumber absent-accident to a
cabinetmaker with accident, Mr. Hildebrand estimated a future loss of approximately
$332,077.  Applying the same approach to future loss calculations for a gas
fitter, Mr. Hildebrand calculated a future loss of approximately $266,388 when
he compared the projected earnings of a gas fitter absent-accident and
with-accident.  Comparing the projected earnings of a gas fitter
absent-accident to a cabinetmaker with accident, Mr. Hildebrand estimated a
future loss of approximately $419,504.

[167]     Insofar as
cost of future care calculations were concerned, Mr. Hildebrand prepared a
report that estimated the present value lump sum cost of the future care
recommendations that Ms. Fischer had included in her report of January 30,
2009.  Mr. Hildebrand listed the proposed future care items Ms. Fischer
recommended as including an annual gym pass, one session of treatment with a
kinesiologist, one session of counselling with a psychologist, a personal
trainer on an annual basis and physically based treatments (such as massage and
physiotherapy) on an annual basis.  Not included in the calculations was the
cost of medications in the future.

[168]     Mr.
Hildebrand used a different multiplier to calculate the estimated cost of
future care because such costs can continue over one’s life time rather than
over a person’s working life to age 65.  Mr. Hildebrand calculated a remaining
life expectancy of approximately 45.3 years for Mr. Trites which resulted in a
higher multiplier than for estimating loss of future earnings.  On this basis
Mr. Hildebrand calculated the present value for each $1,000 in care costs
incurred annually from the trial date onward to be estimated at $22,274.

[169]     Mr.
Hildebrand calculated the present value estimates of cost of future care based
on the recommendations made by Ms. Fischer in her report.  Mr. Hildebrand includes
two figures in his report, the upper end figure is based on the assumption that
Mr. Trites would continue to work as a plumber and the lower figure assumes
that Mr. Trites would work at a less physically demanding occupation.

[170]     It should
be noted that Mr. Hildebrand used the midpoint of any items that contained a
range of costs.  For the physically-based treatment items Mr. Hildebrand
included calculations at both the high end of the range for weekly treatments
if Mr. Trites were to continue working as a plumber and at the low end of the
range for monthly treatments if Mr. Trites works in a less physically demanding
occupation.

[171]     Based on
these considerations, Mr. Hildebrand estimated the future care costs for Mr.
Trites to range between $44,538 (assuming work in a less physical occupation)
and $111,359 (assuming Mr. Trites continues to work as a plumber).

[172]     Mr.
Hildebrand’s reports, while helpful from a mathematical and straight loss
approach, simply provides the court with a set of tools to consider different
scenarios that provide calculations and numbers for the assessment of the
future loss of earnings and cost of future care.  The final determination on
such future losses and costs, if any, however, is an assessment, not a straight
calculation.

B.       The Defendant’s Case

[173]     In
addition to cross-examining the witnesses called on behalf of the plaintiff,
counsel for the defendant tendered two medical reports, one prepared by Dr.
N.K. Reebye and one prepared by Dr. Bernard Tessler.

Medical Evidence on behalf of the
Defendant

The Report of Dr. N.K. Reebye

[174]     Dr.
Reebye, a physician with a specialty in physical medicine and rehabilitation,
performed an IME on Mr. Trites on December 12, 2007 and prepared a report dated
February 13, 2008.

[175]     During
this single IME Mr. Trites outlined for Dr. Reebye the various symptoms he was
still experiencing more than two years after the accident including tightening
of neck muscles which give rise to headaches, pain between the shoulder blades,
and throbbing and stabbing pain in his lower back 90 to 95% of the time. 
Physical examination revealed that Mr. Trites weighed 239 pounds and was 5’ 10”
tall.  He exhibited a decreased active and passive range of movement in his
neck as limited by pain.  Palpation of the back of Mr. Trites’ neck, both upper
trapezius muscles, and both paraspinous muscles of the upper back caused Mr.
Trites to report tenderness in those areas but there did not appear to be any palpable
muscle tightness.  Examination of Mr. Trites’ thoracic and lumbar spine
resulted in Mr. Trites reporting tenderness although he was observed to have full
movement in those areas.  Mr. Trites exhibited tightness in his right hip on
stress tests for his hip.

[176]     Dr. Reebye
opined that Mr. Trites suffered moderate soft tissue injuries as a result of
the accident.  Although such injuries typically heal within a few weeks, Dr.
Reebye noted that aches and pains can be experienced for longer periods.

[177]     Dr. Reebye
noted that Mr. Trites was young, healthy, exercising regularly and working
quite hard as a plumber, eight hours a day five days a week.  Dr. Reebye
expressed the opinion that in all likelihood Mr Trites’ symptoms would
gradually improve over time but noted that they had persisted for more than two
and half years at the time of his assessment.  Dr. Reebye’s prognosis for Mr.
Trites was expressed as “good” but then immediately qualified by stating that
it was difficult to predict when all of the symptoms Mr. Trites was
experiencing would fully settle down.  Dr. Reebye stated that the “most likely
scenario will be waxing and waning symptoms as he has at present but the
intensity will become less severe and the periods in between his symptoms will
become more prolonged.”

The Report of Dr. Bernard Tessler

[178]     Dr.
Tessler, a physician with a specialty in neurology, performed an IME on Mr.
Trites on March 25, 2009 and prepared a report dated April 15, 2009.

[179]     Based on
his review of the materials provided and his examination of Mr. Trites, Dr.
Tessler was of the opinion that Mr. Trites sustained soft tissue injuries in
the neck and thoracic area as a result of the accident.  He also sustained a
soft tissue lumbar strain injury.  The intermittent headaches that Mr. Trites
related were likely due to the soft tissue injury to the neck or cervical
area.  Dr. Tessler was of the opinion that Mr. Trites’ symptoms will likely
gradually improve but in the interim he would have to treat his discomfort with
analgesic medication.  Dr. Tessler did not anticipate any long term
complications arising from the accident.  Although he deemed the injuries to be
mild in nature, Dr. Tessler noted that they interfered with Mr. Trites’
recreational activities and affected his employment due to the heavy physical
nature of his job.

Findings in relation to the Defendant’s
Medical Evidence:

[180]     The report
of Dr. Reebye is not entirely inconsistent with the evidence of Mr. Trites and the
medical experts called on his behalf although he did not go so far as the
plaintiff’s medical experts to opine that the symptoms Mr. Trites continued to
exhibit and experience when examined might continue indefinitely.  Taking Dr.
Reebye’s report at its highest, he expects Mr. Trites’ symptoms to dissipate
although he cannot say when they will fully settle down.  Certainly two and a
half years post-accident, Mr. Trites was still exhibiting an array of symptoms
that interfered with his day to day living and working abilities.

[181]     The report
of Dr. Tessler is less helpful as it simply notes there does not appear to be
any brain injury associated with the accident and that Mr. Trites’ symptoms
will gradually improve.  What is noteworthy, however, is that nearly four years
after the accident, Mr. Trites was still exhibiting symptoms associated with
the soft tissue injuries he sustained as a result of the accident.

VI.      Analysis and Findings

A.       The nature, extent and severity of the injuries sustained by the
plaintiff in the accident and their impact on him in terms of his lifestyle,
ability to work, socialize, and participate in recreational pursuits

[182]     Four years after the accident, Mr. Trites was still experiencing
headaches 5-6 times a month.  He also experiences neck, mid-back and lower back
pain on an ongoing basis that is aggravated when working as a plumber.  He
relies upon narcotics medications to get him through the latter part of his
work day and is wrung out by the end of the work day.  The continuing pain and
discomfort has impacted every facet of Mr. Trites’ life – not only physically
at work but also in his ability to engage in any sort of physical recreational
activity such as skiing, hiking, fishing hunting, camping or any other sort of
outdoor activity that he liked to do before the accident.  He finds it
difficult to perform a number of household chores, particularly some forms of
yard work, that require bending or reaching overhead.  His social life has also
been restricted by his inability to engage in the activities he was involved in
prior to the accident.

[183]     From the foregoing evidence and my findings, I find that Mr. Trites
has established that he suffered moderate soft tissue injuries to his neck and
back (cervical, thoracic and lumbar spine) in the accident.  He missed approximately
76 days of work and then returned to his very physically demanding position as
an apprentice plumber.  Despite ongoing modalities of treatment such as massage
and chiropractic intervention and regular exercise at the gym, Mr. Trites
symptoms had not improved to such a level that he was fully recovered from the
accident by December 2006.

[184]     Although improved in his condition, Mr. Trites had not fully
recovered when funding for his various rehabilitation efforts was discontinued
in December 2006.  This resulted in Mr. Trites experiencing a significant setback
in the progress of his recovery.  Since July 2007 Mr. Trites has returned to
exercising at the gym and to some forms of additional therapies such as massage
therapy, albeit at a reduced rate given his inability to financially sustain
all recommended forms of treatment and expensive prescription medication.  I
find that since July 2007, Mr. Trites has worked consistently and persistently
to try and improve and alleviate his various symptoms through a return to the
gym, reducing his weight and re-engaging in massage therapy as his finances
have permitted.

[185]     As of the conclusion of this trial, almost four and half years
post-accident, Mr. Trites remains unable to work as a plumber at the level he
did prior to the accident without chronic pain and resort to a significant
amount of prescription painkiller medication.  He continues to experience ongoing
chronic neck and lower back pain as well as headaches from time to time.  His
physical demeanour while testifying, although definitely not determinative,
reinforced the evidence of his difficulty with movement of his neck and
rotation of his trunk and with prolonged sitting or standing.  He has been
unable to continue with most of his recreational physical and sports activities
that he enjoyed prior to the accident including hiking, skiing and camping. 
His ability to do significant yard work and household chores that require
bending and lifting have been compromised.  In essence, all facets of Mr.
Trites’ life have been negatively impacted by the injuries he sustained in the
accident.  In my view, the evidence clearly establishes ongoing impairment from
the soft tissue injuries he sustained in the accident and that the impairment
remains fairly significant in terms of Mr. Trites’ inability to both work
without pain and live his life without ongoing pain.  The prognosis for a full
recovery is guarded and the medical evidence, which I accept, establishes that
it is more likely than not, given the chronicity of the symptoms to date, that
the symptoms will persist indefinitely.  The severity of the symptoms will be
governed in part by the level of Mr. Trites’ physical activity and fitness.

[186]     If Mr. Trites continues to work as a plumber he will require ongoing
massage therapy, chiropractic manipulations, continued attendance at the gym
and resort to medications to assist in alleviating and controlling his pain
symptoms.

B.       What is an appropriate amount of damages, if any, payable to the
plaintiff for injury or other losses he sustained that may be properly
attributed to the accident?

[187]     Mr. Trites seeks the following for damages:

 1.       Non-pecuniary
damages $ 75,000.00

 2. Past Wage Loss $7,125.00

 3. Loss of Future Earning Capacity  $600,000.00

 4.       Cost of future
care  $60,000.00[1]

 5.       Special
damages  $14,581.24

 6.       Cost of
Retraining                                           $4,000.00

 less advances paid
by ICBC $15,600.48

  Total                                                                    $745,105.76

Non-Pecuniary Damages

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

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

[190]    
The relevant factors in assessing non-pecuniary
damages were reviewed by Mr. Justice Voith in Lakhani v. Elliott, 2009
BCSC 1058 at para. 104, citing the majority opinion of the Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34 (see also Kuskis at para. 138):

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

a.         age of the plaintiff;

b.         nature of the injury;

c.         severity and duration of pain;

d.         disability;

e.         emotional suffering; and

f.          loss or impairment of life.

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

g.         impairment of family, marital and social
relationships;

h.         impairment of physical and mental abilities;

i.          loss of lifestyle; and

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

[191]     Mr. Trites seeks an award of $75,000 for non-pecuniary damages.  I
have considered the cases cited by plaintiff’s counsel on the issue of
non-pecuniary damages: Demederios v. Heinrichs, 2001 BCSC 1475 ($70,000);
Paller v. Paller, 2004 BCSC 977 ($60,000); Schubert v. Knorr, 2008
BCSC 939 ($75,000); Pelletier v. Khaw, 2005 BCSC 1302, ($65,000).

[192]     The defendants submit that the soft tissue injuries Mr. Trites experienced
were mild to moderate and that there was a significant improvement in his
condition within 18 months of the accident.  Thereafter. Mr. Trites took a step
backward in his condition due to his failure to maintain his exercise program
and due to increased demands in his working conditions.  In addition, Mr.
Trites’ weight and poor core strength are factors to consider in assessing the
amount to be awarded under this head of damages.  Accordingly, argues the
defence, the appropriate award for non-pecuniary damages is between $30,000 and
$40,000. 

[193]     I have also considered the cases cited by defence counsel on the
issue of non-pecuniary damages: Beick v. Webb and Ryder Truck Rental Canada
Ltd. et al., 2003 BCSC 1251 ($30,000); Kipling v. Richmond & British
Classic Auto, 2004 BCSC 1446 ($35,000); Stone v. Kirkwood, 2008 BCSC
1295 ($40,000); Hutchison v. Cozzi, 2009 BCSC 243 ($40,000).

[194]     The difficulties associated with trying to reconcile the awards in
such cases are well known.  While the authorities are instructive, I do not
propose to review them in these reasons, I am mindful that the nature of the
inquiry is such that these cases can serve only to provide guidelines as to the
range of damages awarded in cases with some similarities to the case at bar. 
In this case, as in all others of this kind, the inquiry is highly fact
dependant and thus the quantum of any award will turn to a very large degree on
its unique circumstances, having regard to what is fair and just in light of the
nature, extent and duration of Mr. Trites’ injuries and the impact these
injuries have had on his quality of life.

[195]     I accept the evidence adduced by the plaintiff that Mr. Trites sustained
soft tissue injuries to his neck and back as a result of the accident and that,
nearly four and a half years post-accident, he still experiences pain in his
neck and back, mainly the lower back area.  The injuries can be described as
moderate in nature but they have developed an element of chronic pain that
continues to affect most every facet of Mr. Trites’ work and non-work life. 
The pain is most significant when Mr. Trites works.  To cope at work, Mr.
Trites consumes a large amount of prescription pain killers in order to
function as a plumber.

[196]     Mr. Trites is a stoic and determined person.  Despite the neck and back
pain and attendant headaches he has tried to continue to work as a plumber and
also to remain physically active but is far less active than he was prior to
the accident.  He no longer engages in any of the recreational activities he so
enjoyed prior to the accident such as hiking, skiing, or camping.  His injuries
have impacted on his ability to contribute to various household chores such as mowing
the lawn and doing yard work.  The ongoing nature of the injuries and chronic
pain has also had a negative impact on Mr. Trites’ physical relationship with
his wife.  And, he no longer socializes to the extent he used to prior to the
accident because of the chronic pain that prevents him from engaging in the
recreational activities he previously enjoyed with his friends.

[197]     Taking into account all of these circumstances, the referenced
authorities which I have reviewed and the nature of Mr. Trites’ injuries, the
fact that the soft tissue injuries of real consequence were to his neck and
back, the relatively enduring nature of the injuries, the pain he has suffered
and may continue to experience in the future, as well as the fact that he has suffered
some significant diminishment in all facets of his life, I assess non-pecuniary
damages in the amount of $75,000.

[198]     An award of
$75,000 for non-pecuniary damages in the present case takes into account the
significant pain, suffering and disability experienced by Mr. Trites throughout
the first several months after the accident.  It also takes into account the
pain, discomfort and loss of enjoyment of life that he has suffered thereafter,
in terms of his being able to fully carry out his duties in his chosen
profession as a plumber, including having to rely upon prescription painkiller medication
to get himself through the day at work, and in terms of being unable to pursue
his former pre-accident recreational and sporting activities such as skiing,
hiking, and camping.  This amount also takes into account that Mr. Trites still
continues to suffer neck pain and lower back pain on an ongoing basis, as well
as headaches from time to time and experiences physical limitations depending
on his activity.

Did Mr. Trites fail to mitigate
his loss

[199]     In Jobs v. Van Blankers, 2009 BCSC 230, I included a summary
of the law on the duty to mitigate stating at para 107:

[107]    The law imposes upon plaintiffs the
duty to mitigate their losses.  This includes taking reasonable steps to
minimize any loss relating to injuries, so as to prevent plaintiffs from
recovering for harm and loss caused by their own neglect. In Graham v. Rogers, 2001 BCCA 432,
leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 467, Madam Justice
Rowles writing for a majority of the Court of Appeal succinctly stated the
principle of mitigation of damages in personal injury cases at ¶35:

Mitigation goes to limit recovery based on
an unreasonable failure of the injured party to take reasonable steps to limit
his or her loss.  A plaintiff in a personal injury action has a positive duty
to mitigate but if a defendant’s position is that a plaintiff could reasonably
have avoided some part of the loss, the defendant bears the onus of proof on
that issue.

[200]     In Turner v. Coblenz, 2008 BCSC 1801, Mr Justice Halfyard
summarized the test for an allegation of failure to mitigate stating at para.
101:

[101]    The defendant bears the onus of proving the
essential elements of failure to mitigate, which are the following:

(a)        That a qualified medical
expert recommended that a plaintiff undergo a particular form of treatment;

(b)        That the plaintiff failed
or refused to take the recommended treatment although it was available to him
or her; and

(c)        That the plaintiff’s refusal
or failure was unreasonable, in that if the plaintiff had taken the recommended
treatment, there is some likelihood that he or she would have received
substantial benefit from it, and the treatment would not expose the plaintiff
to significant risk.

See Janiak v. Ippolito
[1985] 1 S.C.R. 146; Chiu (guardian ad litum of) v. Chiu
2002 BCCA 618 at paragraph 57; and Middleton v. Morcke 2007 BCSC
804 at paragraph 37.

[201]     In this case, the defence argues that Mr.
Trites has unreasonably failed to follow the advice of Dr. O’Connor and the
Work Hardening Program that Mr. Trites attend the gym on a regular basis.  Dr.
O’Connor recommended continuing gym attendance both in April 2006 and again in
April 2007. The defence argues that Mr. Trites has unreasonably
failed to mitigate his loss by not purchasing monthly gym passes for the first
six months of 2007 and continuing to attend the gym in those months where such
attendance would otherwise have assisted his recovery.

[202]     Mr. Trites outlined in his evidence that after the accident he
regularly went to the gym and followed the exercise regime established for him
while in the Work Hardening Program and that he did this until ICBC
discontinued funding his rehabilitation efforts in December 2006.

[203]     Mr. Trites allowed his gym membership to lapse in January 2007 as he
could not afford to pay for a monthly gym membership, as well as his
prescription medication, in addition to his other various financial obligations
and the increased cost of commuting into Vancouver for his new position with
Ocean Park Mechanical.  Mr. Trites’ cost of commuting increased when he changed
employers in January 2007 as his position required him to commute for about 2
hours into the Vancouver area whereas previously he had a 20 minute commute to
work in Agassiz, B.C.

[204]     In addition to having to pay for his prescription pain killer
medication, Mr. and Mrs. Trites were paying for their September 2006 wedding
and honeymoon as well mortgage payments on their home.  And, although Mr.
Trites changed employers at the end of January 2007 and received an increase in
pay, his income for part of March and April 2007 was reduced to about 40 to 50%
of his regular pay while he attended the classroom component of his
apprenticeship program.

[205]     In April 2007 Dr. O’Connor reminded Mr. Trites of the importance of
working out regularly in order to improve his condition and alleviate the
symptoms.  On his return to work in May 2007, after completing the classroom
component of his course, Mr. Trites immediately started to save money to pay
for an annual gym membership and bought one when they went on sale at his local
community centre in early July 2007.

[206]     On July 27, 2006 Dr. Bull wrote to the ICBC adjustor handling Mr.
Trites’ claim to provide an update on Mr. Trites’ condition.  At that time he
noted that although Mr. Trites’ neck pain had diminished considerably, Dr.
O’Connor had opined there would be improvement from the neck and low back
strain but that it would be slow and occur over the next one to three years.  It
is also important to acknowledge that prior to discontinuing with the gym, Dr.
O’Connor noted in his report that by November 2006, Mr. Trites headaches were
90% better and his neck pain was about 70% improved.

[207]     Dr. Bull noted that Mr. Trites’ failure to continue to attend the
gym to perform his exercise had the effect of setting him back in his
recovery.  On March 5, 2007 Dr. Bull wrote a general letter outlining the
benefits that Mr. Trites had obtained from the attendances at the gym.  It was
his evidence that he hoped this letter would be presented to the ICBC adjustor
and assist Mr. Trites in having funding for the gym membership re-instated.

[208]     Once Mr. Trites renewed his exercise regime in the summer of 2007, he
was able to significantly reduce his resort to prescription medication as noted
by Dr. Bull on August 15, 2007.

[209]     Financial circumstances are certainly one factor to consider in the
overall reasonableness assessment of whether a plaintiff has failed to mitigate
their losses.  What is reasonable will depend on all the surrounding
circumstances.  One significant factor in this case however, is that as Mr.
Trites was on his upward climb to recovery, ICBC determined that it would discontinue
funding his efforts at rehabilitation.  As a consequence, Mr. Trites was left
to fund his continued rehabilitation on his own.  Instrumental to continuing his
recovery and functioning was not only attendance at the gym but other treatment
modalities including massage therapy and chiropractic treatments and taking
prescription medication.  All of these items had significant benefits to Mr.
Trites but they also carried with them significant costs.  In the first half of
2007, Mr. Trites was unable to fund all these aspects of treatment and chose
the prescription medication as it was essential to his pain management on a
daily basis.

[210]     I find that in these circumstances, Mr. Trites’ decision not to
continue with a gym pass on a monthly basis for the first six months of 2007
was not unreasonable.  This is not a case where the plaintiff has refused to
take recommended treatment.  Rather Mr. Trites was engaged in all aspects of
the recommended treatments and ICBC was, until December 2006, paying for them. 
Thereafter ICBC unilaterally discontinued paying for these treatments,
notwithstanding the fact that Mr. Trites was not yet fully recovered.  I cannot
find that Mr. Trites acted unreasonably in determining how best to try and pay
for all the treatment modalities that had been working for him in assisting his
rehabilitation but were no longer going to be paid for by ICBC and were beyond
his limited means at the time.  As Smith J. noted in O’Rourke v. Claire,
[1997] B.C.J. No. 630 (S.C.) at para. 42 “it does not lie in the mouth of the tortfeasor
to say that a plaintiff in such circumstances has failed to mitigate by failing
to arrange and pay for his own rehabilitative treatment.”

[211]     Accordingly, I find that the defence has not discharged its burden
of establishing that Mr. Trites failed to mitigate his losses in this case.

Loss of Past Income from Employment

[212]     Mr. Trites
advances a claim for past wage loss in the amount of $7,125.  The defence does
not take issue with this aspect of Mr. Trites’ claim.  Mr. Trites missed 76
days of work from May 26, 2005 to September 14, 2005.  The defence also points
out that Mr. Trites has been compensated for this past wage loss and Mr. Trites’
counsel does not take issue with this point.  Accordingly, Mr. Trites is
entitled to an award of $7,125 for past wage loss.  I will deal with the
deduction for this repayment in my overall conclusion.

Loss of Future Earning Capacity

[213]     One of the
most significant issues in this case is whether there should be an award for
loss of future earning capacity and if so what the amount should be.  Although
counsel for Mr. Trites acknowledges that this area is a matter of assessment,
not calculation, he advances the argument that a 30% reduction of Mr. Trites
earning capacity, as outlined in the evidence of the economist, Mr. Hilderbrand,
properly reflects the anticipated loss Mr. Trites will suffer while also giving
due consideration to negative contingencies related to unemployment in the
trade.  Based on this approach, counsel for Mr. Trites argues that an appropriate
award under this head of damages is $550,000 to $600,000.

[214]     Counsel
for Mr. Trites relies on the following cases in support of his position on this
issue: J.F.C. v. Ladolcetta, 2009 BCSC 1151($275,000 for an apprentice
plumber and pipe fitter); Sidhu v. Kiraly, 2009 BCSC 1202 ($350,000 for
a heavy duty mechanic); and Zhang v. Law, 2009 BCSC 991 ($300,000 for
the owner of a small grocery store).

[215]     Counsel
for the defendant argues that Mr. Trites has not proven a permanent or ongoing
injury such that an award for loss of future earning capacity is warranted, or
alternatively that any such award ought to be very carefully scrutinized by the
court given the evidence in this case.  Counsel submits that this is
particularly so as Mr. Trites has continued to work as a plumber despite his
injuries, albeit it at a slower rate.  Thus, according to the defendant, Mr.
Trites has good future prospects to continue to generate comparable income
either continuing as a plumber or a similar income if he re-trains as a
cabinetmaker.

[216]     In the further
alternative, the defence argues that if the court determines that Mr. Trites’
capacity to earn an income has been diminished as result of the accident, the
approach to adopt in assessing the amount to award is that of the loss of a
capital asset and that on this approach Mr. Trites should be awarded one year’s
salary for loss of capacity.  Based on his gross income for 2007, this would
amount to $48,000.

[217]     In the
further alternative, the defence argues that at its highest, the amount to be awarded
is $235,286 based on Mr. Hildebrand’s estimate for future loss if Mr. Trites’
were to endeavour to continue in his chosen profession as a plumber.  Counsel
for the defendant argues that it is a significant probability that Mr. Trites
will continue to work as a plumber and that this is supported by the evidence that
Mr. Trites has continued, despite his pain symptoms and difficulties, to work
in the profession he loves and at trial was still looking for work in the
plumbing industry.

[218]     Counsel
for the defendant relies on the following cases in support of his position on
this head of damages: Eaton v Regan, 2005 BCSC 3 ($10,000 for a radiator
mechanic); Fiust v. Centis, 2005 BCSC 1067 ($30,000 for a warehouse
supervisor); Schwieghardt v. Palamara, Haverinen and Plamondon, 2003
BCSC 1149 ($50,000 for a correctional officer); Walters v. Rempel,
[1994] B.C.J. No. 1716 (S.C.) ($38,000 for a self-employed plumber running a
successful plumbing business).

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

[220]    
In Palmer v. Goodall (1991), 53 B.C.L.R.
(2d) 44 (C.A.) at 59 Madam Justice Southin, writing for the Court of Appeal, stated:

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

[221]    
The principle that governs the assessment of an
award for loss of future earning capacity is that, insofar as possible, the
plaintiff should be restored to the position she or he would have been in if
not for the injuries caused by the defendant’s negligence: Lines v. W. &
D. Logging Co. Ltd, 2009 BCCA 106 at para. 185; Falati v. Smith,
2010 BCSC 465 at para. 38.

[222]    
Recent jurisprudence from the Court of Appeal establishes
that a plaintiff must demonstrate impairment in his or her earning capacity and
that there is real and substantial possibility that the diminishment in earning
capacity will result in a pecuniary loss.  If the plaintiff discharges this
requirement, he or she may prove the quantification of the loss of earning
capacity either on an earnings approach or a “capital asset” approach: Perren
v. Lalari, 2010 BCCA 140 at para. 32.  In essence, however, in
making an assessment under this head of damages, what the court must endeavour
to quantify is the financial harm accruing to the plaintiff over the course of
his working career: Pett v. Pett, 2009 BCCA 232 at para. 19.

[223]    
In Rosvold v. Dunlop, 2001 BCCA 1 at
para. 11 [Rosvold] Madam Justice Huddart noted that valuation of the
established impairment “may involve a comparison of the likely future of
the plaintiff if the accident had not happened with the plaintiff’s likely
future after the accident has happened.”  This, however, is not the end of the
inquiry.

[224]    
In Reilly v. Lynn, 2003 BCCA 49 at
para 101, Mr. Justice Low, writing for the majority, summarized the relevant
principles in assessing damages for loss of future earning capacity stating:

[101]  The relevant principles may be briefly summarized. The standard of
proof in relation to future events is simple probability, not the balance of
probabilities, and hypothetical events are to be given weight according to
their relative likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458 at
para. 27.  A plaintiff is entitled to compensation for real and
substantial possibilities of loss, which are to be quantified by estimating the
chance of the loss occurring: Athey v. Leonati, supra, at para.
27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.). 
The valuation of the loss of earning capacity may involve a comparison of what
the plaintiff would probably have earned but for the accident with what he will
probably earn in his injured condition: Milina v. Bartsch (1985),
49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the end of the inquiry;
the overall fairness and reasonableness of the award must be considered: Rosvold
v. Dunlop (2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1 at para. 11; Ryder
v. Paquette, [1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task of the
Court is to assess the losses, not to calculate them mathematically: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248
(C.A.).  Finally, since the course of future events is unknown, allowance
must be made for the contingency that the assumptions upon which the award is
based may prove to be wrong: Milina v. Bartsch, supra, at
79.  In adjusting for contingencies, the remarks of Dickson J. in Andrews
v. Grand & Toy Alberta Ltd., supra, at 253, are a useful guide:

First, in many respects, these
contingencies implicitly are already contained in an assessment of the
projected average level of earnings of the injured person, for one must assume
that this figure is a projection with respect to the real world of work,
vicissitudes and all.  Second, not all contingencies are adverse …
Finally, in modern society there are many public and private schemes which
cushion the individual against adverse contingencies.  Clearly, the
percentage deduction which is proper will depend on the facts of the individual
case, particularly the nature of the plaintiff’s occupation, but generally it
will be small …

[Emphasis added]

[225]    
To determine the question of whether a plaintiff
has established an impaired future earning capacity the court considers the following criteria established by Mr. Justice Finch (as he then
was) in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) at para. 8:

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

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

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

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

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

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

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

[229]     As noted above, one approach to assessing the loss of future earning
capacity is to compare the likely future income of the plaintiff if the
accident had not occurred with the likely future income of the plaintiff now
that it has occurred: Rosvold at para. 11; Kuskis at para. 154. 
In this case actuarial evidence was adduced to provide assistance on this
baseline assessment through the evidence and expert report of Mr. Hildebrand. 
In this respect, Mr. Hildebrand opined and calculated that the likely future
income potential of Mr. Trites, as a plumber, retiring at age 65, if the
accident had not occurred would be $1,023,756.  He also calculated the likely
future income potential of Mr. Trites, as a gas fitter, retiring at age 65, if
the accident had not occurred would be $1,111,173.

[230]     Mr.
Hildebrand calculated a future loss of earnings for Mr. Trites of $235,286 if
he is able to continue to work as a plumber, based on certain assumptions about
reduced earnings potential and unemployment contingencies.  If Mr. Trites is
unable to continue as a plumber due to the continuing physical difficulties he
has experienced from the accident and elects to take on a less demanding but
also lower paying alternative as a cabinetmaker, Mr. Hildebrand calculates the
loss of future earnings for Mr. Trites to be about $332,077.  Comparable
figures were advanced for Mr. Trites in the position of a gas fitter.  Assuming
Mr. Trites would have continued in his training and continued to work as a gas
fitter his future loss of earnings would be approximately $266,377.  And,
assuming Mr. Trites would have worked as a gas fitter but instead works as a
cabinetmaker due to his injuries, Mr. Hildebrand calculates the loss of future
earnings to be approximately $419,504.

[231]     On the
totality of the evidence adduced in this trial, including the opinions of Ms. Jodi
Fischer, Dr. Bull and Dr. O’Connor, I infer that if Mr. Trites remains in his
chosen profession as a plumber he will likely experience a diminishment in his
future earning capacity due to the injuries that he sustained in the accident
and the symptoms that continue to plague him even four and a half years after
the accident.

[232]    
Mr. Trites is presently 35 years old, has a
strong and positive work ethic and intends to continue work although he is not
certain that he can sustain the physical demands associated with being a
plumber.  He has 30 years of employment ahead of him, thus the likely pecuniary
loss to Mr. Trites either continuing as a plumber, albeit at a reduced
efficiency because this work will likely aggravate his symptoms which very well
may continue indefinitely, or through re-training as a cabinetmaker is not
insignificant.  As noted in Sinnott v. Boggs, 2007 BCCA 267 at para. 14:

[t]hree of the
four factors outlined in Brown are broad enough to support an award in
circumstances where a plaintiff is able to continue in an occupation but the
ability to perform and the earning capacity resulting from that ability are
impaired by the injury.

There is no reason why a plaintiff who,
although suffering from the injuries sustained in the accident, has continued
to work in a particular occupation, albeit at a reduced level of performance
and income and aided by medications, should not be compensated for the
anticipated pecuniary loss through damages for loss of future earning capacity.

[233]     Based on his continuing to work as a plumber even after the
accident, albeit with chronic pain, reduced efficiency and resort to
prescription painkillers, as well as his focus on finding employment in that
area once laid off by Saxon Mechanical and his expressed love of the
profession, I find it is more likely than not that Mr. Trites will try to
continue to work as a plumber, at least in the near future.  However, it is
equally clear on the evidence that he will be less efficient and work more
slowly, he will likely aggravate his symptoms and will require much therapeutic
assistance and medication to keep him working.  In the end, it may well be that
his continuing to work as a plumber is, in fact, not sustainable.

[234]    
I find that in the present case there is a
substantial possibility of future income loss in relation to Mr. Trites.  It is
clear that while Mr. Trites may have continued to work as a plumber after the
accident, it was not without apparent pain and discomfort and declining
functionality as the work day wore on.  Mr. Heppner’s observations of Mr.
Trites performance confirm this as does Ms. Fischer’s observations in the
simulated work day assessment.  Mrs. Trites’ observations of Mr. Trites at the
end of the work day also confirms this point.  Mr. Trites consumption of pain
killers, while at the work site, in order to make it through the work day, also
confirms this point.  This combination of factors demonstrates that there is a
substantial possibility in the future of Mr. Trites not being able to continue
as a plumber.  The opinions of Dr. Bull and Dr. O’Connor support the inference
that although Mr. Trites could continue to work as a plumber it will not be
without some physical cost to his health.  Thus there is a substantial
possibility that Mr. Trites may not be able to continue to work as a plumber
but if he does, it will be at a reduced efficiency, which compromises his marketability
to other employers.

[235]    
Addressing the factors from Brown v. Golaiy,
as endorsed in Rosvold, in the context of this case I am of the view
that Mr. Trites has been rendered less capable overall from earning income from
all types of employment, particularly because he is already limited to more
labour related employment given his various learning disabilities which
preclude him from more “white collar” related employment.  Second, without the
ability to sustain prolonged physically demanding work, as evidenced by his
decreasing functionality as the work day progresses, Mr. Trites is less
marketable and less attractive as an employee in the areas of labour where he
could work.  Third, there is a real possibility that lost to Mr. Trites is the
ability to take advantage of all job opportunities that might otherwise have
been open to him had he not been injured.  Finally, I accept that Mr. Trites is
less valuable to himself as a person capable of earning income in a competitive
labour market.  As such an award for loss of future earning capacity is
warranted.

[236]     In applying the relevant legal principles and gazing "deeply
into the crystal ball" as described by the Court in Andrews, I am
left to make an assessment as it relates solely to Mr. Trites’ injury to his
neck and lower back and his ongoing difficulties four and a half years after
the accident and the likelihood that these symptoms may well persist
indefinitely, thus interfering with his ability to earn a living as a plumber.

[237]     I do not
consider Mr. Hildebrand’s calculations for loss of future income as a gas
fitter to be of much assistance, as Mr Trites’ evidence did not support the
conclusion that he would continue to work towards obtaining his Class A papers
as a gas fitter.

[238]     Taking into account all of the evidence and the many future
contingencies that may arise, including the prospect that Mr. Trites’s
health may continue to improve if he works less strenuously and continues to maintain
his exercise regime, the prospect of recovery or at least improvement in
his symptomology and that he will either continue to work in
his chosen profession as a plumber, albeit at a less productive rate, or elect
to re-train as a cabinetmaker, I conclude that Mr. Trites’s future
earning capacity has been impaired by the injuries he suffered in the accident.

[239]     I
accept the plaintiff’s evidence, including the medical and expert evidence on
functional capacity and vocational alternatives, that there is a substantial
possibility indeed probability that over the long term Mr. Trites will be
unable to sustain the physically demanding heavy work load required for being
an industrial plumber, and, accepting that he may well find working as a
cabinetmaker a suitable alternative, I conclude that an appropriate award for
loss of future earnings capacity in these circumstances to be $250,000.

Special Damages

[240]     It is well
established that a plaintiff is entitled to recover as special damages all the
pre-trial expenses he or she incurred as a result of their injuries, so long as
they were caused by the tort and the decision to incur them was reasonable: see
Jamie Cassels, Remedies: The Law of Damages (Toronto: Irwin Law Inc.,
2000) at 116.  When assessing the quantum of damages under any recognized head,
the court is concerned, ultimately, with making the party whole.  In Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), aff’d (1987), 49
B.C.L.R.(2d) 99 (C.A.) [Milina] McLachlin J. (as she then was),
described this animating principle at 78:

The fundamental governing
precept is restitutio in integrum. The injured person is to be restored to the
position he would have been in had the accident not occurred, insofar as this
can be done with money. This is the philosophical justification for damages for
loss of earning capacity, cost of future care and special damages.

[241]     Counsel
for the defendant acknowledges that the vast majority of Mr. Trites special
damages have been paid.  I find that the plaintiff is entitled to compensation
for the amount of money he has already expended as a result of the injuries
suffered.  In his evidence, Mr. Trites reviewed a compiled list of special
damages that reflect what he paid for in terms of treatments with a
chiropractor, a massage therapist, a physiotherapist, physiotherpay, gym
memberships, orthopedic boots, mileage and parking for attendances at various
therapy and medical appointments and assessments, prescription medications and
other related matters.  The list of special damages includes those items in
2005 and 2006 that ICBC re-imbursed and so any award on the total amount of
special damages will have to be adjusted with a deduction for what has already
been advanced by ICBC to cover the expenses Mr Trites incurred in 2005 and
2006.  I will address the deductions issue in my conclusion to these reasons.

[242]     Mr. Trites
has engaged in a number of modalities of therapy, has incurred expenses for gym
memberships and has relied heavily on prescription medications to try and
address the continuing pain he experiences as a result of the injuries he
sustained in the accident.  He has had to make many trips to various treatment
providers and incurred expense in terms of mileage and parking in order to try
and treat his injuries from this accident.  None of the expenses he incurred
could be described as unreasonable in any respect.  I find that Mr. Trites is entitled
to be repaid for his out of pocket expenses for all the items included in his
list of special damages which amounts to $14,292.55.

[243]     Of these
special expenses, $1,816 were incurred in 2007 and $3,329 were incurred in
2008, all after ICBC refused to reimburse Mr. Trites for any further special
expenses.  Accordingly, pre-judgment Court Order Interest in the amount of
$148.95 for the special expenses incurred in 2007 and $139.74 for the special
expenses incurred in 2008 should be added on to above total resulting in a
total award for special expenses in the amount of $14,581.24.

Cost of Future Care

[244]    
In Izony v Weidlich, 2006 BCSC 1315 at para 70, Mr. Justice
Masuhara addressed cost of future care awards stating:

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

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

[245]    
The plaintiff is entitled to be compensated for
all expenses reasonably necessary for his future medical care. The test to be
applied when the court considers awarding the cost of future care was set out
in Milina at 84 as follows:

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

These authorities establish:

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

(2)        that the claims must be reasonable.

 …

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

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

[247]     In this case, Ms. Fischer has made several recommendations for
future care items and services for Mr. Trites.  They include:

·      
an annual gym pass on an indefinite basis;

·      
three sessions with a kinesiologist totalling $255;

·      
personal training eight times a year, indefinitely, at an
estimated annual cost of $480-$680;

·      
massage therapy on a weekly basis if Mr. Trites continues to work
as a plumber and on a reduced basis if he re-trains to a less physically
demanding profession, at an estimated annual cost of $900 a year, for an
indefinite period of time;

·      
8 to 12 sessions of psychological counselling for an estimated
total of $1,280 to $1,920;

·      
vocational rehabilitation counselling;

·      
funding for prescription medication.

[248]     Dr.
O’Connor supports the following modalities of continuing treatment: kinesiology,
a personal trainer, massage if it helps, and a gym membership.  He recommended
a reduction in the amount of medication Mr. Trites consumes but also
acknowledged that medications may be necessary in order for Mr. Trites to
manage his pain and continue to work.  Dr. Bull supported an ongoing physical
program at the gym, assistance from a kinesiologist or physiotherapist, massage
therapy, chiropractic treatment and prescription medications.

[249]     Given the limits
on abilities to engage in re-education and training, it is unlikely that Mr.
Trites will be able to re-train to a “white collar” position, I find that it is
more likely than not that he will remain either in his chosen profession as a
plumber or undertake re-training as a cabinetmaker.  Therefore it is likely
that Mr. Trites will require significant amounts of both passive and active therapy
in the future in order to maintain his level of fitness and stabilization such
that his symptoms continue to reduce over time or are at least managed at a
level such that he is able to continue to work in labour oriented positions.

[250]     The
defence argues that as the medical opinions indicate that Mr. Trites will
slowly improve over time, an award for future care costs needs to be limited to
less than that suggested by the plaintiff as there will not be an ongoing
requirement for all of the treatments over Mr. Trites’ lifetime.

[251]     The
evidence supports a medical justification for all of the recommended therapies
outlined by Ms. Fischer, Dr. O’Connor and Dr. Bull.  What is not so clear,
however, is how long some of those therapies, particularly personal training and
medication may actually be required.

[252]     Mr.
Hildebrand has provided a straight calculation approach to covering all of the
therapies that Ms. Fischer recommended except the issue of cost of medications.

[253]     As noted
above, damages for cost of future care are a matter of prediction. And as in
all cases, no one knows what the future holds for Mr. Trites.  Since damages
must be assessed once and for all at the time of trial (subject to modification
on appeal) this requires the court to peer into the future and fix the damages
for future care as best it can.

[254]     I accept
the evidence and opinions of Ms. Fischer, Dr. Bull and Dr. O’Connor on the
recommendations they make for Mr. Trites’ future care as being both medically
justified and in his best interests.  Mr. Trites indicated a willingness and
desire to explore all aspects of the recommended treatments.  The difficulty in
this case is endeavouring to predict how long that care may actually be
necessary.

[255]     I find
that although Mr. Hildebrand’s overall cost of future care calculations are
helpful some of them are of limited assistance as they are calculated on some
costs being incurred over the duration of Mr. Trites’ estimated life
expectancy, a calculation that appears to be overly generous in light of the
fact that it is entirely likely that with concentrated effort Mr. Trites
injuries and symptoms may eventually diminish.

[256]     I accept
that the following future care items over the duration of Mr. Trites’ life
expectancy are reasonable costs that are medically justified and the evidence
clearly establishes they are necessary to preserve Mr. Trites’ health:

·      
annual gym pass (present value of)                            $9,130

·      
physically based treatment (present value of)           $53,450[2]

[257]     I find the
following one time future care costs to be reasonable costs that are medically
justified and the evidence clearly establishes are necessary to preserve Mr.
Trites’ health:

·      
psychological counselling (8 to 12 sessions)               $1,600

·      
vocational rehabilitation counselling                            $1,200

·      
kinesiologist (three sessions)                                        $255

[258]     Insofar as
costs for medication and personal trainers are concerned, I accept that these
two items are medically justified and necessary to assist in preserving Mr. Trites
health.  However, I am not satisfied that it is reasonable to assume they are
necessary over the duration of Mr. Trites’ life expectancy.  The evidence was
not entirely satisfactory on the duration that these items might be required,
particularly the issue of medication as Dr. O’Connor suggested that it would be
appropriate to endeavour to have Mr. Trites reduce his reliance on pain
medication.  Nor does the evidence support the need for a personal trainer for
the 45.3 years of remaining life expectancy.

[259]     Accordingly,
predicting as best I can these two items I find that the following amounts are
appropriate for future care costs for a personal trainer and medication:

·      
personal trainer $680/yr for 10 years                          $6,800

·      
medications $750/yr for 5 years                                 $3,750

[260]     Accordingly,
predicting as best I can what may happen in the future and adjusting for the many
contingencies that may occur in the course of Mr. Trites working life, I find
that an appropriate overall award for cost of future care to be $76,185.

Cost of Retraining

[261]     It is
clear from the evidence of Mr. Trites, Ms. Fischer and Dr. Quee Newell that it
is more likely than not that Mr. Trites will have to re-train and that the most
likely occupation that would suit his skills, abilities and aptitude is that of
becoming a cabinetmaker.  Dr. Quee Newell’s evidence discloses that the cost of
retraining would be $4,058 for the Joinery Foundation programme at BCIT.  I
find that this is an appropriate additional amount that should be awarded to
Mr. Trites so that he can enroll in the programme and start his re-training should
he elect to do so.

VII.     Conclusion

[262]     In conclusion,
and based on these reasons, I find the following awards of damages to be
appropriate for the injuries sustained by Mr. Trites in the accident:

[263]    
Mr. Trites is also entitled to pre-judgment interest at the prevailing
rate and costs, unless the parties seek to make further submissions on the
issue, in which case notice must be given to the court within 30 days of the
filing of this judgment.

“Ker
J.”