IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100916

Docket: 75673

Registry:
Kelowna

Between:

Kevin Thomas

Plaintiff

And

Robert D. Thompson
and Joshua Thompson

Defendants

Before:
The Honourable Mr. Justice Brooke

Reasons for Judgment

[1]            
This action arises out of a rear‑end collision which occurred at
the intersection of Highway 97 and McCurdy Road in Kelowna on June 27, 2005. A
car being driven by the plaintiff was stopped at a traffic control on Highway
97 when he was struck from behind by a truck operated by Joshua Thompson. Liability
has been admitted; Mr. Thompson gave in evidence that he had been
momentarily distracted; the highway was slippery and he knew before impact that
he would not be able to stop in time to avoid the impact. There was
considerable damage to the front of the defendant’s older model pickup truck,
and damage as well to the rear of the plaintiff’s car which was estimated to be
approximately $2,500. Both vehicles were seemingly operable, although the
plaintiff says he arranged for his car to be towed.

[2]            
While the plaintiff was initially represented by counsel, he was self represented
for two of the examinations for discovery and for trial which lasted 18 days.

[3]            
The plaintiff was born in 1967 in Romania, and also claims citizenship
in Austria. He came to Canada in 1993 for the first time, and joined his two brothers
in Saskatchewan. In 1993, and while living in Saskatchewan, the plaintiff
changed his name to Mike Kevin Thomas from Mihaita Palanc. Mr. Thomas says
that prior to the civil war in Romania he had been attending medical school and
he was enrolled in a six‑year program to become an orthopaedic surgeon. After
four years he says he was qualified as a physician but called up for military
service in April 1990. He was giving the rank of Lieutenant and the position intern
physician, as well as the commanding officer of a platoon of troops. All of
this is set out in a certified translation of a document issued by Romania,
which was marked Exhibit 27 at trial. Mr. Thomas described his work in the
military as including being a member of a four‑man helicopter crew and
engaged in operations not only in Romania but also in Yugoslavia. These
operations largely involved, as I understand it, recovering wounded and
transporting those wounded by helicopter to a medical facility. Mr. Thomas
says that in the Romanian military each member of a helicopter crew was trained
to operate the equipment, and he was qualified as a helicopter pilot.

[4]            
On his arrival in British Columbia in or about 1996, Mr. Thomas
enrolled at Okanagan University College or Okanagan College in the English as a
Second Language programs, and he repeated these programs in order to pursue
further education. (While Mr. Thomas suggested that the record of his
attendance in 1996 was a mistake, I am satisfied that he did take the ESL
courses, the record of which forms part of his permanent record.) His desire
was to qualify as a physician and to specialize in orthopaedic surgery and he
rightly recognized that he needed to upgrade his English language skills. In
addition to taking English as a Second Language in the winter of 1996, he also
took English as a Second Language in the winter of 1999, and thereafter he
pursued adult basic education in the winter of 2002, the summer of 2002, and
the fall of 2002 as well as in the winter of 2003, the summer of 2003, the fall
of 2003 and the winter of 2004. Mr. Thomas also enrolled in the Bachelor
of Science in nursing program in the winter session 2005/2006, from which he
withdrew in November 2005. While Mr. Thomas said he was advised by a
counsellor to switch to a general degree leading to medical school, I find that
he was not maintaining the grades required of him to continue. He transferred
to the Bachelor of Arts program at UBC Okanagan, which he hoped would enable
him to qualify for medical school. However, he withdrew from that program too
in 2006.

[5]            
Mr. Thomas then decided to use his skills and training in
aeronautics by taking a course of studies in the aircraft engineering program
offered by Okanagan College at the Kalamalka campus. Mr. Dale Keegstra
gave evidence that there was a rigorous pre‑screening of potential
candidates and that Mr. Thomas qualified for the program which began in
the fall of 2007. Mr. Thomas says that he thought the first two years of
the program was academic oriented and the second two years practical; that in
fact the program was divided into theoretical and practical aspects beginning
in the fall of 2007. Mr. Thomas says that because of the injuries he
sustained in the motor vehicle accident of June 27, 2005, he was unable to do
the practical work. Mr. Keegstra, however, gave in evidence that Mr. Thomas
was unable to keep his marks above 70 percent and thus he did not qualify for
continuation. In the result, Mr. Thomas withdrew from this program and no
further efforts have been made.

[6]            
However, in addition to his qualifications in medicine and aeronautics, Mr. Thomas
also enjoys qualification as a class‑one truck driver renewed in October
2008 and expiring in June of 2012. He also is qualified as an open water scuba
instructor and on the evidence of his instructor Mr. Johnston, Mr. Thomas
was able to work as a highly skilled diver anywhere in the world, and Mr. Johnston
was ready to assist him as well as all those that he had trained in obtaining
employment. Mr. Johnston expressed great confidence that if Mr. Thomas
wished to do so, he would be able to work under water in the oil rigs or in
other underwater industrial activity and earn significant income.

[7]            
Thus, Mr. Thomas presents as an intelligent and disciplined person
capable of achievement at a high level as he has demonstrated in his
qualifications as a physician in Romania and in his qualifications both as a truck
driver and a diver in British Columbia. Mr. Thomas argues that it is the
injuries which he sustained in the accident, the subject of this action, that
have frustrated his progress and he says that at the time of the accident on
June 27, 2005 he was both going to school full time and he was working full
time and earning between $60,000 and $70,000 a year. He argues that as a result
of the accident he is disabled by pain and by depression which may be caused by
the pain and its overall effect on his abilities.

[8]            
The defence, on the other hand, says that Mr. Thomas’ case is based
upon delusion, deceit and dishonesty, and that the injuries sustained were
modest and he had recovered from those injuries within a few months of the
accident. The defence says that Mr. Thomas displayed after this accident
comparable symptoms to those that he displayed after a similar rear‑end
collision on December 27, 2002 and that a modest award of general or non‑pecuniary
damages is appropriate, with no award for past lost of income or any impairment
of a capital asset or income‑earning capacity in the future. Moreover,
the defendant says that the special damages claimed by the plaintiff are
inflated as are the claimed damages for the cost of future care.

[9]            
To provide some substance  to how far the parties are apart, Mr. Thomas
says that a proper award would be this:

Past wage loss:                       $   250,000
Future wage loss:                    $   550,000
Special costs:                          $     81,045
Non‑pecuniary damages:        $   210,000
Future care cost: $   288,761
Total in all:                               $1,379,806

The defence, on the other hand, says that the plaintiff
has proved nothing more than a minor soft‑tissue injury and that any
award should be nominal. The defence relies upon inconsistencies and
contradictions in the plaintiff’s report to numerous physicians who have seen
him following the accident, as well as the inconsistencies between his reported
income in the years 2003, 2004 and 2005 compared with his income tax returns. Mr. Thomas
says in answer that English is not his first language and that he misunderstood
his tax obligations. I now turn to these issues.

[10]        
Following the accident, Mr. Thomas attended at a walk‑in
clinic and was seen by Dr. Scott. Dr. Scott’s nurse noted that Mr. Thomas
had been rear ended an hour before, and that his neck was sore and stiff and
that he was sore in his upper back with some discomfort in his upper arm. Dr. Scott
noted that he had no previous injuries, that he was a student at medical
school, and that he was qualified in Romania as an orthopaedic surgeon. Dr. Scott
saw the plaintiff two days later, on June 29th, in follow up and requested x‑rays
and referred Mr. Thomas for physiotherapy with a diagnosis of a soft‑tissue
injury. Dr. Scott made a report to ICBC in which he referenced the
examination of June 27th and the plaintiff’s complaint of sore neck and upper
back with pain at the end of range of movement in all directions of the
cervical spine; that the x‑rays indicated a mild encroachment on the
right side at C‑4 and 5; and recommended range of movement stretching and
analgesics, with an anticipated recovery within three months. It is noted that
there is no reference to a sore or broken right hand, or to any contact between
Mr. Thomas’ head and the interior of the car or any loss of consciousness. These
matters are, however, noted in the clinical notes of his family doctor, Dr. Shepherd,
of August 5, 2005 where it is noted that Mr. Thomas “put out his hand to
protect himself, and actually broke the windshield with his right fist”. Dr. Shepherd
also notes “his head did not hit the windshield, nor the steering wheel. No
LOC.” and “pain in the right hand where it hit the windshield…numbness in his
left arm”. In his evidence at trial Mr. Thomas said that he had struck the
left side of his head on the window or door pillar on the left side of his car,
and that he did sustain a loss of consciousness. He says that the driver
of the other car assisted him after he regained consciousness, but he had to
sit on the pavement to avoid falling. On June 30, 2005, Mr. Thomas
provided an application to ICBC for insurance benefits and described the injury
in this way: “sprained right wrist, forehead bruised, right side (steering
wheel), neck, upper neck, back”.

[11]        
Dr. Shepherd also notes in his lengthy record of August 5, 2005
that while the plaintiff had a motor vehicle accident approximately three years
ago, he had “fully recovered”. The clinical records for that injury refer to
chronic pain as well as anxiety and depression which were not resolved at the
time of the second accident which forms the subject of this action.

[12]        
Dr. Shepherd saw Mr. Thomas again on October 25, 2005 and
noted that Mr. Thomas was having problems with short‑term memory, focus
and sleeping; that he was getting more paranoid and more irritable, and
occasionally hearing noises and voices. Dr. Shepherd also notes that Mr. Thomas
is “agitated and depressed today”. In November 2005 Dr. Shepherd’s
clinical notes indicate that Mr. Thomas is unable to continue with the
semester because of medical reasons and he agrees to write to that effect.

[13]        
On January 10th Dr. Shepherd notes that Mr. Thomas has seen Dr. Vallentyne,
an expert in physical medicine and rehabilitation for FMG studies, and that he
was considering referring him for nerve conduction testing.

[14]        
On April 3, 2006 Dr. Shepherd notes that Mr. Thomas had seen Dr. McCann,
an expert in physical medicine and rehabilitation, with whom Mr. Thomas
had some disagreements, and Dr. Shepherd noted that he would arrange a
private MRI for Mr. Thomas’ neck. He also noted that multiple anti‑depressants
had been unsuccessful in reducing his anxiety.

[15]        
On April 24, 2006 Dr. Shepherd notes a disagreement with Dr. McCann
as to whether he had any problems with his right hand “going through the
windshield”.

[16]        
On August 29th Dr. Shepherd notes that Mr. Thomas has seen a
psychiatrist, Dr. Latimer, and that he will be going to Social Services to
get some money. On November 2, 2006 Dr. Shepherd notes that following nerve
conduction testing by Dr. Coghlan, Mr. Thomas reported being “fried
by the procedure”.

[17]        
Dr. Shepherd’s clinical notes document continuing pain and
continuing depression through to the clinical note of January 19, 2010. While
some relief was afforded by Hydromorph Contin and the surgery of his shoulder
by Dr. Krywulak, the relief was temporary. By October 2, 2008 Dr. Krywulak
concluded there was nothing further he could do. I referred to Dr. Coghlan’s
electromyography report which is dated October 2, 2006. Dr. Coghlan notes
that Mr. Thomas told him that he had problems with cognition, difficulty
with speech and finding the right words, and some loss of taste, but all of
these came back. Dr. Coghlan notes that the MRI showed no abnormality, nor
did he find any significant symptomatology, although he thought Mr. Thomas’
presentation was puzzling.

[18]        
Dr. McCann saw Mr. Thomas on a single occasion on February 6,
2006. At that time he noted that Mr. Thomas reported sleep problems, but
denied a history of depression. Dr. McCann found the plaintiff to be
agitated and angry. On physical examination Dr. McCann noted that Mr. Thomas
would not relax enough to give a true picture; that he guarded or flexed and
did not provide a reliable measure of strength in clinical testing. In his
assessment Dr. McCann notes a pre‑existing history of depression and
anxiety. He also notes that Mr. Thomas presented “as catastrophic” but
that the injuries that he suffered in the motor vehicle accident cannot explain
his current level of pain and disability. Dr. McCann also expressed his
concern about secondary gain issues and malingering because Mr. Thomas
would not explain why he had x‑rays taken of his neck in 2003 which left Dr. McCann
suspicious of a prior neck injury. Mr. Thomas expressed considerable
indignation that Dr. McCann had obtained the x-rays in regard to the
December 28, 2002 accident without his consent.

[19]        
Mr. Thomas was also seen by Dr. Derryck Smith, a psychiatrist,
who saw Mr. Thomas on August 18, 2009. Dr. Smith describes the
plaintiff being involved in an accident on December 28, 2002 in which he
sustained soft‑tissue injuries to his neck, back and left arm. He notes
as well that Dr. Shepherd provided anti‑depressant medication from
January 2005 through May of 2005 when he was referred to a community‑based
mental health resource and diagnosed with major depression and anxiety. Dr. Smith
expresses the view that the motor vehicle accident of June 27, 2005 re‑aggravated
pre‑existing problems with Mr. Thomas’ neck and back and this likely
exacerbated a pre‑existing problem with anxiety and depression. Dr. Smith
presents a diagnosis of major depression, anxiety disorder, and personality
disorder with narcissistic and paranoid features. In summary, Dr. Smith
says that Mr. Thomas was suffering from depression and anxiety and was
under active treatment at the time of the motor vehicle accident of June 27,
2005.

[20]        
Mr. Thomas was also seen on independent medical examination by Dr. David
McDougall. In his report dated May 18, 2010, he says that Mr. Thomas told
him he did not receive a loss of consciousness, but within a minute told him
that the other driver took him out of his car and that he was unconscious for
five minutes. He describes pain in the left side of his head. Dr. McDougall
opines that Mr. Thomas suffered a whiplash associated disorder level‑2
injury with no evidence of neurological injury or boney injury, with a long
history of pre‑existing neck pain, and mental health concerns. Dr. McDougall
notes that Mr. Thomas presents as angry, suspicious, and frustrated, and
that issues of secondary gain should be actively considered. He concludes that
the whiplash injury had resolved at the time of his examination and notes that Mr. Thomas
displays “a very high sense of entitlement and victimization”.

[21]        
In the motor vehicle accident of December 28, 2002, Mr. Thomas saw Dr. Fromberg
on December 31, 2002. He describes being hit from behind “at 80 km an hour” and
complains of a sore low back, chest, numb left arm, neck pain, headache and
insomnia. Dr. Fromberg notes multiple soft‑tissue tender points. The
clinical notes show that Mr. Thomas next saw Dr. Mills with a
complaint of back pain, soft‑tissue injury and anxiety. He was seen again
by Dr. Fromberg on January 17, 2003 and by Dr. Hart on January 27,
2003 presenting with variable symptoms and reporting an indifferent response to
physiotherapy. It was noted by Dr. Shepherd that Mr. Thomas has a
flattened affect and is quite depressed, and it is affecting his life in regard
to his schooling and his relationship with his girlfriend. On February 5, 2003 Dr. Shepherd
notes that he will continue with physiotherapy. Continuing pain was noted by Dr. Shepherd
in his clinical note of February 21, 2003, and in a clinical note by Dr. Kellosalmi
on March 31, 2003 Mr. Thomas presented with a sore left shoulder and arm
and requested an analgesic and prolonged counselling. Mr. Thomas reported
to Dr. Shepherd that he has overwhelming fatigue when he finishes classes and
his marks have dropped, and he did not think he could work. On July 8, 2003 Dr. Shepherd
noted that Mr. Thomas is discouraged, very frustrated and angry and in
pain. Mr. Thomas was seen on a regular basis by Dr. Fromberg as well
as Dr. Shepherd in follow up with regard to the motor vehicle accident of
December 28, 2002, and in October 2003 Dr. Shepherd recorded in his
clinical note a work conditioning program. In his note of October 23, 2003 it
was noted that Mr. Thomas continued to have lots of aches and pains and
was very discouraged. In the clinical note of December 20, 2004 Dr. Shepherd
indicates an anxiety disorder, and referral to a mood disorder clinic was
discussed again on January 13, 2005.

[22]        
In a clinical note of February 9, 2005 “re: his depression”, Dr. Shepherd
noted a medication change. On February 23, 2005 Dr. Shepherd considered
changing medication for his mood disorder, and on March 10, 2005 he noted Mr. Thomas
having some panic attacks. I have already referred to the clinical note of
August 5, 2005 following the accident on June 27, 2005.

[23]        
While the plaintiff argued that he had fully recovered from the
consequences of the injuries sustained in the motor vehicle accident of
December 28, 2002, the facts do not support that conclusion. I find that Mr. Thomas
was continuing to be treated for a mood disorder, insomnia, and pain related to
the accident of 2002 at the time that he was involved in the second accident in
2005. The complaints with regard to the first accident and with regard to the
second accident are remarkably similar and, in my view, not divisible.

[24]        
I now turn to the damages claimed by the plaintiff, and the question of
credibility.

[25]        
First of all, the plaintiff said under oath that he earned an income in
2004 of $63,886 and in 2005 from January 3 to June 28 an income of $31,444 (or
more than $60,000 on average a year), in home renovation work. Mr. Dave
Novak gave evidence for the plaintiff that he hired him on a regular basis to
do home improvements and renovations, based on an estimate in advance, for
which he sometimes paid in cash and sometimes by cheque. He did not disagree
with the amounts shown by Mr. Thomas on forms of sales orders, but
acknowledged that he had no firm recollection. In his 2003 tax return summary, Mr. Thomas
reported an income of $21,815 employment insurance benefits. No reference is
made to income from employment. In 2004 Mr. Thomas reported an income of
$6,840 from employment insurance, and other income of $500 for a total of
$7,340. In 2005 Mr. Thomas reported no income, and in 2006 and following Mr. Thomas
reported an income of Social Assistance payments varying from a little more
than $2,000 a year to almost $11,000 a year. There is no reference to any
employment income in any tax return placed in evidence. Mr. Thomas
explains this by saying that he did not understand that tax was payable on earned
income where the tax payer did not charge GST or PST. I find this to be
preposterous. What Mr. Thomas is saying is that he is well informed enough
to claim employment insurance benefits, but not well informed enough to report
actual income. It is noted that in each year his tax return was prepared by
H&R Block, a commercial tax preparer. I also note that Mr. Thomas made
an assignment in bankruptcy on August 24, 2007 in which he disclosed
liabilities of in excess of $41,000 made up of student loans and credit card
debts. While I accept that Mr. Thomas has been challenged in his language
skills in the past, and I must consider what role if any this might have played,
I find his understanding and usage was fluent and effective and I can only
conclude either that he knowingly failed to disclose his true income in his tax
returns, or that he did not earn the kind of income that he claims to have made
in the home renovation business.

[26]        
I find that Mr. Thomas was working in 2003, 2004 and 2005 and
earning a substantial income. But, not only was he failing to report that
income but he seemingly was drawing employment insurance which is, of course, payable
upon being fit but unable to find work.

[27]        
There is one other puzzling aspect to Mr. Thomas’ income. He says
that he had saved $ 68,500, much of which was needed for dental work, but that
he had been obliged to spend all of that in paying for diagnostic imaging as
well as physiotherapy and massage and his caregiver as well as day‑to‑day
living expenses since the accident. Mr. Thomas says that he kept these
savings in cash in a safety deposit box. He was unable to provide any bank
records that would support this claim. As I understood his evidence, the
address Mr. Thomas has been giving as his residential mailing address is
in fact a “mail drop” of convenience and he has been residing in a trailer.

[28]        
Then I must consider in excess of 8 hours of video recorded evidence
showing Mr. Thomas in a variety of day‑to‑day activities over
the last several years, particularly in March and April of 2010. Mr. Thomas
took great issue with this evidence, asserting a breach of his right to privacy
and an aggravation of his level of anxiety and paranoia. The result was that I
admitted the video recordings into evidence. For the most part I am satisfied
that Mr. Thomas was not aware that he was being recoded and that what is
depicted is a reasonable portrayal of his day‑to‑day activities. I
find the most striking aspect of the video recording is the absence of any
signs or signals of pain or discomfort. Mr. Thomas may have been in pain
and masked that pain, but there was no obvious pain behaviours such as facial
wincing or the protection of an arm or leg or simply the avoidance of heavy
lifting or repetitive behaviour. Mr. Thomas pointed out occasions when
after lifting a large object he shook his hand. I noted these but while it
could reflect pain in the hand or wrist it could equally reflect tingling or
simply a thoughtless act for no reason. I find that Mr. Thomas was able to
raise his hands and lift things over his head, as well as use his right arm reaching
over his head to assist him in standing in a boat with no apparent limitation
or difficulty. There was no significant limitation demonstrated in these video
recordings which I find to be a fair reflection of a reasonable level of
function.

[29]        
In the result, I did not find Mr. Thomas to be a credible witness. I
noted particularly the inconsistent and contradictory history he provided to
various physicians. Here I refer especially to the delayed report of an injury
to the right hand and the loss of consciousness. While I recognize that
those whose first language is not English can have difficulty both in being
understood and in understanding, I am satisfied that cannot explain the
inconsistencies and contradictions I have pointed out. As some of the doctors
who suggested secondary gain or malingering as an explanation for Mr. Thomas’s
catastrophic description of the result of this moderate accident, I too am
driven to the conclusion that those catastrophic results have been greatly exaggerated.

[30]        
I find that at the time of the second accident Mr. Thomas had not
fully recovered from the first accident, and that the pre-existing chronic pain
and depression were aggravated by the second injury. I find that the injuries
sustained in the first and the second accidents are not divisible, and that the
defendants are fully liable for those injuries without apportionment (Athey
v. Leonati, [1996] 3 S.C.R. 458 and Bradley v. Groves, 2010 BCCA
361).

[31]        
With respect to non‑pecuniary damages, I am satisfied that Mr. Thomas
suffers from continuing pain but that it is not disabling. In other words, Mr. Thomas
has no great functional limitation as a result. I find that the anxiety and
depression of which he complains is being managed on an ongoing basis by Dr. Latimer,
and that there is a history of depression in Mr. Thomas’ family.
Nevertheless, this is the most significant loss and it is continuing but it is
managed. I assess non‑pecuniary damages at $75,000.

[32]        
I am not satisfied that Mr. Thomas has proven any past wage loss
attributable to the injuries. I have no reliable evidence of a pattern or
history of earnings before the accident, and I cannot reconcile Mr. Thomas’s
tax returns with his record of earnings. Moreover, on the evidence of Mr. Johnston,
the diving instructor, Mr. Thomas was capable of performing substantially
remunerative diving work all over the world and he would assist him in doing
so. Mr. Thomas has not pursued that option, which of course he may choose,
but he cannot seek compensation for an avoidable loss.

[33]        
For the reasons for which I have rejected Mr. Thomas’ claim for
past wage loss, I also reject his claim for any loss or impairment of income‑earning
capacity. I accept that Mr. Thomas need only prove a reasonable or
substantial possibility of such a loss, but I find Mr. Thomas has not done
so. It is not the accident and the injuries sustained in the accident that
limit Mr. Thomas’ future earning capacity so much as it is the
circumstances of his life. He found himself as a child in a divided family; his
parents separated when he was 2, and his father had emigrated to Canada while
he lived in his mother’s care, as I understand it, in Romania but went to a
private boarding school in Austria. He had every prospect of qualifying as an orthopaedic
surgeon in Romania, but the civil war in that country and the war in neighbouring
Yugoslavia dramatically changed his prospects for the worse. In emigrating to
Canada he had great opportunities, but his greatest challenge was to master the
English language and that has proved a barrier. But, that is not a loss that he
can lay at the feet of the defendants. I find that Mr. Thomas has failed
to demonstrate a reasonable or substantial possibility that his income earning
capacity has been impaired by his injuries. This claim is dismissed.

[34]        
With regard to the claim for damages for the cost of future care I am
satisfied that the Lyrica medication prescribed by Dr. Latimer is needed
to ameliorate the depression and anxiety from which Mr. Thomas continues
to suffer. Mr. Thomas says that his costs are $7,355.76 a year, and the
total future cost for his expected lifetime is $235,361.28. I have not been
provided with any present value table, but it is of course only present value
to which Mr. Thomas is entitled. To the extent that I may have overlooked
a present value table or submission, leave is given to bring this issue back
before me.

[35]        
I am not satisfied that there is an evidentiary basis for the claimed
fitness program and massage therapy. The latter affords some relief, but will
not cure or correct the pain of which Mr. Thomas complains. But, I am not
convinced on all the evidence that the pain is at a level that a fitness
program and massage therapy is appropriate.

[36]        
Nor do I find that Mr. Thomas needs a caregiver to assist him as a
result of his injuries. During the case management process Mr. Plasvic, Mr. Thomas’
“caregiver”, was invariably present and Mr. Thomas told me he needed him
to assist him at trial. We discussed the ways in which that might conveniently
be done but at the end of the day, while Mr. Plasvic gave evidence, he did
not otherwise assist Mr. Thomas at trial, who managed in a quite
satisfactory way without him. While I was impressed by Mr. Plasvic’s
kindness, I was not at all persuaded that his assistance was necessary in the
future. This aspect of the claim for future care is also dismissed.

[37]        
Mr. Thomas has placed in evidence a “record” of his expenses that
encompass and conflate both disbursements as well as special damages. No
argument was made on this point upon which I can decide. The record includes
some disbursements including medical records fees, and court reporters fees for
transcripts of examinations for discovery. But, the record also includes
special damages such as physiotherapy and gym passes as well as massage
therapy.

[38]        
As part of that record, Mr. Thomas claims indemnity against
payments to his caregiver Mr. Plasvic totalling $38,485. In his evidence Mr. Plasvic
said that Mr. Thomas did pay him $250 a month, or approximately that
amount, which he did not report on his income tax because it was simply
intended to defray his reasonable expenses. I mention too that included in his
duties was washing Mr. Thomas’ hair (Mr. Thomas said he could not
raise his arms over his head to do that and Mr. Plasvic washed his hair
once or twice a week.). Mr. Plasvic, in cross‑examination, said he
did wash Mr. Thomas’ hair from time to time but not on any regular basis,
and he had last done it some months previously. He said he was a friend to Mr. Thomas
and drove him around and cleaned his trailer as well as provided society to him
and cheered him up from his ongoing depression. Thus, it is evident to me that Mr. Thomas
egregiously exaggerated both the frequency of hair washing as well as the
monies he paid – not more than $38,000, but less than $12,000. In the
circumstances, I decline to make any award for the caregiver’s assistance despite
being favourably impressed by the kindness of Mr. Plasvic.

[39]        
That record also claims matters that are neither recoverable
disbursements nor special costs. I refer to student loans of nearly $26,000 and
dental charges of $38,485, although there may be others.

[40]        
With regard to costs Mr. Thomas has been partly successful in his
claim but, after an unnecessarily long trial, and having regard to the claim,
in a fractional amount. Unless there are matters of which I am unaware, I allow
costs at Scale B for a five‑day trial, and those costs will be assessed
by the registrar whose tasks will include separating reasonable disbursements from
other claims made by the plaintiff. Finally, I wish to acknowledge the
assistance of Mr. Boulton, to Mr. Thomas and to the court in the
timely and orderly presentation of witnesses and evidence. But for this
assistance, this trial would have taken still longer.

“T.R. Brooke J.”