IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100917

Docket: M071804

Registry:
Vancouver

Between:

Adrian Vershinin

Plaintiff

And

Lawrence William
Hayward
and Gurvinder Singh Badesha

Defendants

Before:
The Honourable Mr. Justice Grauer

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff in this personal injury claim, Mr. Adrian Vershinin, was
injured in a motor vehicle accident that occurred on April 19, 2005, when he
was struck by a vehicle that ran a red light.  The force of the impact
converted his vehicle into unrecognizable scrap from the A pillars forward, and
caused the deployment of both front airbags.  Mr. Vershinin had tried in vain
to avoid the accident by swerving, turning the steering wheel with his right
hand, and bracing himself.  The impact forced him forward onto his right arm.

[2]            
The defendants have admitted liability for the accident.  Damages remain
to be assessed.  At issue are the extent of the injuries Mr. Vershinin suffered
in the accident, the effect of those injuries on his past and future
employment, and in particular, whether an injury to his right shoulder
consisting of tears to the glenoid labrum and biceps tendon, for which Mr.
Vershinin underwent surgery on March 31, 2010, was caused by the collision.

[3]            
I am grateful to counsel for the efficiency with which they conducted
this trial, and for their able assistance.

BACKGROUND

[4]            
Mr. Vershinin was born in São Paulo, Brazil, on February 11, 1972.  He
has lived in the Vancouver area since he was two years old.  He attended
Langara College for two years after graduating from high school, taking courses
in the social sciences.  He did not obtain a diploma.  His long-held ambition
has been to write, particularly for television and film productions.  He speaks
both Portuguese and Russian.

[5]            
While he was at Langara College, Mr. Vershinin worked as a security
guard on the weekends and between classes in order to support himself.  He
nevertheless struggled financially, and on the recommendation of friends,
joined the Canadian Armed Forces Reserve in December of 1993.  He remained in
the Reserve until 2002, training first at the Princess Patricia’s Canadian
Light Infantry battle school in Alberta before undertaking further training
with the Royal Westminster Regiment.  He underwent additional combat training
in Saskatchewan and Manitoba, but did not serve overseas.

[6]            
Mr. Vershinin married in 2002, and he and his wife, Lise-Anne, have a
daughter, Lucy, born September 9, 2007.

[7]            
Mr. Vershinin left the Canadian Armed Forces in order to take up an
opportunity he had been offered to work in a mentorship program, rather like an
internship (i.e. unpaid), with a television writer, Leonel Luna.  This allowed
him to develop experience in relation to both the art and the business of
writing, which otherwise is rarely available, experience being a prerequisite
for employment and therefore impossible to obtain.

[8]            
At the same time, Mr. Vershinin secured a job with Churchill Armoured
Car, which allowed him to earn an income while leaving him time to write.  He
was later laid off from that employment, and applied to the Royal Canadian
Mounted Police.  That application was deferred to allow him to get more
experience working with the public, and Mr. Vershinin obtained a job managing
strata corporations for a condominium services company.  This job left him no
time for writing.  He therefore left it towards the end of 2003 in order to
take a job as operations manager at one of the properties he had previously
managed, negotiating a four-day week to give him time to write.

[9]            
In September of 2004, through various contacts, Electronic Arts
contacted Mr. Vershinin to ask for a sample of his work, an "audition
piece".  This led to a substantial contract, and ultimately to full-time
employment with Electronic Arts, in which Mr. Vershinin was occupied at the
time of the accident.  He described this as a “dream job”.  He was dismissed
from that job on February 1, 2006.  To what extent his injuries contributed to
his dismissal is very much in issue.

[10]        
I turn first to consider Mr. Vershinin’s claim for non-pecuniary
damages.

NON-PECUNIARY DAMAGES

A.       Overview

[11]        
There is no doubt on the evidence, and I find, that as a result of the
accident, Mr. Vershinin suffered multiple areas of contusion that went on to
complete resolution within a few weeks.  There is equally no doubt, and I find,
that he sustained soft tissue injuries to the neck and back, in the form of a
whiplash-associated disorder for the neck and mechanical back strain to the low
back.

[12]        
What is in dispute is just how much the neck and back symptoms have
improved, the prognosis for the future, and the cause of the right shoulder
injury for which Mr. Vershinin underwent surgery in March of 2010, and which
continues to cause him difficulty.

B.       Lay Evidence

[13]        
Mr. Vershinin testified that in the early period following the accident,
his neck was extremely tight and painful, and he could find no comfortable
position.  He continued to work because of the importance of his job, but left
early from time to time because he was feeling poorly, or because he had
appointments for massage and physiotherapy.

[14]        
From the point of view of his mood, he found himself becoming
increasingly frustrated and impatient.  This was partly due to his ongoing
discomfort, and partly due to his perception that others were not sufficiently
conscious of his own efforts to carry on notwithstanding his discomfort.  He found
himself becoming more confrontational and less collaborative with people at
work.  This led Dr. Jennings to prescribe Paxil.

[15]        
He explained that this also led to stress in his marriage, as he would
tend to blame his wife for things that were not her fault.  He and his wife
used to play golf together but this stopped after the accident.  They also
engaged in activities such as hiking, biking and rollerblading, but these too
stopped.  He had been given some golf lessons as a present before the accident,
and went through with the lessons afterwards, on Dr. Jenkins’ advice not to be
sedentary.  This caused him pain, particularly in his right shoulder, and he
has not tried golfing since.

[16]        
Counsel for the defendant pointed to a number of stressors in Mr.
Vershinin’s life, including moving, having a baby, issues with his parents, and
so on, suggesting that these would account for his mood changes and stress.  On
all of the evidence, I consider that Mr. Vershinin’s explanation is the more
probable.

[17]        
Mr. Vershinin stated that his neck and back pain have never entirely
resolved, although he does have good days from time to time.  He still suffers
from headaches.

[18]        
Mr. Vershinin underwent physiotherapy and massage therapy in 2005, but
became increasingly frustrated through the summer of that year when the therapy
did not fix his problems.  His back and neck did improve, but then his shoulder
got worse.  It would wake him during the night when he turned onto it.

[19]        
With respect to his shoulder, the plaintiff testified that he initially
elected conservative treatment when given the option of that or surgery.  He
finally opted for surgical treatment when the conservative therapy did not help
him.  Since the surgery, his shoulders have been very painful.  His arm was in
a sling for six weeks, and he had to sleep on his back.  He has now returned to
physiotherapy, but his shoulder still is in constant throbbing pain.  He
understands that after five months of therapy, he should be able to lift up to
30 pounds.  At the time of trial, he could not lift anything more than 5 pounds
and could not lift his arm higher than his shoulder.  He has been told that his
mobility should return.

[20]        
Before the accident, Mr. Vershinin and his wife shared housekeeping, but
the burden has since fallen almost entirely on his wife.  Their relationship
has deteriorated.  Mrs. Vershinin confirmed this, stating that their intimate
life has been greatly affected, and Mr. Vershinin has become a lot less
pleasant to be around.

[21]        
In 2008, Mr. Vershinin began a program of counselling with a registered
psychologist, Susan Mackey-Jamieson, PhD, who has a clinical practice.  His
work with Dr. Mackey-Jamieson allowed him to learn coping strategies, to explore
his guilt feelings, and to understand his own responsibility in terms of
putting blame on others, such as his wife, for what he was going through.  He
learned to be extra vigilant if he was having a bad pain day, and to be aware
that his temper could be easily triggered on those days.

[22]        
Mr. Vershinin began some renovation projects around the house he and his
wife purchased, but has been unable to finish any of them.

[23]        
Through cross examination, counsel for the defendants endeavoured to
attack Mr. Vershinin’s credibility.  He succeeded in establishing that, like
many of us, Mr. Vershinin’s memory is not always reliable, and that, like all
of us, Mr. Vershinin is not infallible.  I found Mr. Vershinin, however, to be
an honourable man and an honest witness.  His explanations of apparent
discrepancies were sensible and reasonable, as was his explanation of what
defence counsel promoted as a revealing misstatement on Mr. Vershinin’s
website.

[24]        
I heard testimony also from Mrs. Vershinin, and from Mr. Nielsen, a
colleague at work.  I will deal with the latter more fully when I discuss Mr.
Vershinin’s claim for loss of income.

[25]        
Counsel for the defendants urged me to draw an adverse inference from
the plaintiff’s failure to call his parents-in-law as witnesses, particularly
in view of Mr. Vershinin’s testimony that his father-in-law had assisted
him with some of his renovation projects.  Because they were not called, I do
not have the advantage of their evidence.  I must therefore confine my
consideration to the evidence I did hear.  I decline, however, to draw an
adverse inference as to what the evidence of the in-laws might have been.

C.       Medical Expert
Evidence

[26]        
On behalf of the plaintiff, expert reports were tendered from, and
testimony given by, the following physicians and surgeons: Dr. Garry Jenkins,
Mr. Vershinin’s family doctor; Dr. John le Nobel, a specialist in physical
medicine and rehabilitation who assessed Mr. Vershinin on August 22, 2006; Dr.
Brian Day, an orthopedic surgeon with a special interest in the knee and
shoulder, who interviewed and examined Mr. Vershinin on April 9, 2007; and Dr.
Barry Vaisler, an orthopedic surgeon whom Mr. Vershinin consulted for a second
opinion in relation to his right shoulder injury, and who performed the surgery
on March 31, 2010.  The plaintiff also led evidence from Susan Mackey-Jamieson,
Ph.D., a clinical psychologist who provided therapy to Mr. Vershinin in 2008
and 2009.

[27]        
Dr. Jenkins first saw Mr. Vershinin on April 21, 2005.  At that time, he
noted a very sore neck with reduced range of motion in all directions; bruising
to the right lateral chest; a sore right shoulder, elbow and hand; bone bruise
to the right upper shin; and a painful left hip and buttock.  His diagnosis was
multiple contusions with pulled neck muscles.

[28]        
About a month later, Dr. Jenkins referred Mr. Vershinin to massage
therapy followed by physiotherapy.  The physiotherapy began in late June 2005.

[29]        
Dr. Jenkins prepared a report dated July 10, 2005, in which he reported
as follows:

This gentleman’s injuries and pain have interfered greatly
with his activities around the house, with his recreational activities, and
with his employment.  Any kind of heavy work gives him considerable pain and he
also finds that sitting bothers him considerably in his low back.

Some of the symptoms that he had after the MVA have improved
nicely in that his hand is back to normal as is his right knee but over the
course of time the initial low back pain, which was bothering him, has become
worse and is now the major problem.  The pain in his left rib cage is still
somewhat bothersome, as is his upper left shoulder (trapezius muscle).  It is
my opinion that this pain will continue for some while but should dissipate at
the end of approximately 6 months.  However, his low back pain may go on for an
entire year.

[30]        
On November 9, 2005, Dr. Jenkins prepared a summary Form CL19 Medical
Report for the Insurance Corporation of British Columbia, in which he reported
the following:

YOUR INITIAL OBJECTIVE FINDINGS AND INVESTIGATION

Reduced Range of motion of Neck in all directions.  Sore
[right] shoulder, elbow + hand.  Painful [left] Hip + Buttock, Bone Bruise
[right] upper shin.

AT THE DATE OF THIS REPORT LIST PATIENT’S CURRENT SUBJECTIVE
COMPLAINTS

NECK is [with] little pain but still gets headache back of
the neck.  Low Back pain [with] gardening + sitting more than 2½ hours.

AT THE DATE OF THIS REPORT LIST YOUR CURRENT OBJECTIVE
FINDINGS AND INVESTIGATION, DESCRIBE ANY PROGRESS

ALMOST Back to NORMAL still
[with] occasional headache.  Still [with] pain in low back which he works
through.  Mild scoliosis lumbar spine.

[31]        
In his testimony, Dr. Jenkins explained that the mild scoliosis was
caused by uneven muscle spasms in Mr. Vershinin’s lower back as a result of
soft tissue injury from the accident.

[32]        
Dr. Jenkins provided an addendum report on June 14, 2006.  He noted that
when he saw the plaintiff on August 4, 2005, Mr. Vershinin reported that he was
doing a bit more work around the house, but still found work very stressful,
and was short tempered.  Dr. Jenkins prescribed Paxil, a Selective Serotonin
Reuptake Inhibitor.  On October 12, 2005, Mr. Vershinin reported that his neck
was improving, and Dr. Jenkins requested a further six weeks of physiotherapy
to be funded by ICBC.  By November 9, 2005, Mr. Vershinin reported that his
headaches were less frequent, and he was doing more exercise at the gym.  By
December 2, 2005, his right shoulder was starting to bother him, but his neck
and back were much better.

[33]        
Dr. Jenkins reported that by January 10, 2006, Mr. Vershinin was working
out in the gym, and no further physiotherapy treatments were necessary.  He
advised Mr. Vershinin to carry on with his stretching exercises.  He concluded
his report with the following comment:

I have not seen him since 10 January
2006.  I feel that Mr. Vershinin is now entirely recovered from the MVA
although he still gets the occasional mild pain in his neck and low back from
heavy work.

[34]        
In his testimony, Dr. Jenkins explained that his conclusion that Mr.
Vershinin was entirely recovered was not based on any examination, but on the
fact that Mr. Vershinin had not been to see him for six months.  He also
testified that the right shoulder injury was something that re-emerged once the
pain from his neck and lower back had resolved somewhat, and were no longer
overshadowing the right shoulder problem.  It was Dr. Jenkins’s view that the
right shoulder injury existed from the start.

[35]        
Following his assessment of Mr. Vershinin on August 22, 2006, Dr. le
Nobel provided a report dated August 28, 2006.  In that report, he expressed
the following conclusions:

[Mr. Vershinin] is now 16 months following the April 2005
motor vehicle accident.  He continues to have neck pain and headaches and pain
around the right shoulder and in his low back.  His headaches are consistent
with cervicogenic headache or pain referred to his head from the cervical
spine.  He has neck pain and restriction of movement, in keeping with chronic
soft tissue injury.  He has pain at the right shoulder, in keeping with
tendinitis of the rotator cuff and adjacent structures.  I would recommend that
he have assessment of the right shoulder with magnetic resonance image
scanning, using contrast injection to the right shoulder to try and delineate
areas of inflammation and/or injury in the right shoulder joint.  The contrast
injection will as well potentially be of help in identifying injury to the
glenoid labrum of the shoulder….

Adrian Vershinin has low back pain, diagnosed as mechanical
pain (mechanical pain is pain felt primarily in the spinal column, made worse
by changes in posture and aggravated by changes in position).  He is, I
believe, deconditioned with weight gain, loss of muscle strength and endurance
and loss of soft tissue flexibility, on account of activity restriction because
of pain from the accident related injuries.

He has suffered from other areas
of injury, as noted above.  Fortunately he has had resolution of some of his
areas of injury.  That said, in spite of his efforts and in spite of the time
elapsed, he remains symptomatic and remains limited in his capacity for work
and for non-work activities, as noted above.  Based on his course to date,
there are no further plans from his caregivers in terms of any further
assessments or interventions.  In that respect, his prognosis is felt to be
guarded. … [H]is course to date is indication that he will remain symptomatic
and will remain limited, as noted above, for the foreseeable future.

[36]        
Dr. le Nobel explained in his testimony that his recommendation that
Mr. Vershinin undergo MRI assessment of his shoulder injury was based on
his suspicion that the plaintiff had suffered an injury to the glenoid labrum
based on his symptoms as recorded by Dr. Jenkins, and the forces of the motor
vehicle accident as he understood them.  Those forces would have consisted of
compression and distraction: compression of the shoulder against the right arm
as a result of the impact, followed by distraction force from the combined
effect of the airbag and recoil from the compressed state.  Dr. le Nobel
thought that these forces would be sufficient to cause the kind of tear he
suspected.  He was not cross examined on this aspect of his opinion.

[37]        
As recommended by Dr. le Nobel, the plaintiff underwent an MRI on
February 5, 2007.  He subsequently consulted Dr. Brian Day, an orthopedic
surgeon with a special interest in knee and shoulder injuries.  In his report
dated June 11, 2007, Dr. Day gave the following summary and prognosis:

It appears that Mr. Vershinin has sustained a number of
injuries as described above; in that he was asymptomatic prior to the accident,
I think it is reasonable to relate the symptoms of neck, hip, elbow and
shoulder pain to the accident.  I note that his symptoms with respect to the
spine appeared to be improving spontaneously.  He is benefiting from
physiotherapy, massage and chiropractic treatment.

His shoulder injury appears to involve traumatic injury to
the labrum of the right glenoid.

Very commonly, these lesions require surgical repair.  I
think it is likely that will be the case of Mr. Vershinin.

Surgical repair requires arthroscopic reattachment of the
labrum to the glenoid (socket) of the shoulder joint.  This is a procedure that
usually takes several hours.  Recovery from this surgery in terms of regaining
full function may be as long as six months and sometimes longer.  There is an
extensive rehabilitation phase following that type of surgery.  There may be
additional damage to the articular surface of the glenoid and humeral head in
the shoulder joint.  These are often not easily demonstrable on MRI
examination, but would be visualized at any arthroscopic procedure.

In summary, therefore, with respect to the shoulder, Mr.
Vershinin is likely to have ongoing problems.  He is likely to require surgical
treatment.  A final prognosis as to his future with respect to articular
cartilage damage and the possible development of … arthritis would likely
have to await direct visualization of the joint and assessment of the degree of
permanent damage that has been done.

Based on the MRI, he certainly
has significant mechanical problem with the shoulder joint.  Successful
surgical treatment is likely to allow him to return to an excellent level of
function, but he may always have some recurrent discomfort and limitation with
respect to the right shoulder.

[38]        
Under cross-examination, Dr. Day indicated that he would defer to the
opinion of Dr. Vaisler in terms of how the surgery went, but not necessarily in
terms of long-term prognosis.  In this case, his prognosis of a return to
"an excellent level of function" was dependent on timing.  In fact,
he noted, there had been a major delay before Mr. Vershinin underwent the
surgical repair procedure.  Dr. Day was not cross examined on his opinion
concerning the cause of the shoulder injury.

[39]        
As previously discussed, Mr. Vershinin’s initial response to the
question of undergoing surgery for his right shoulder was to try conservative
therapy first.  Subsequently, he consulted Dr. Vaisler for a second opinion. 
He first saw Dr. Vaisler on March 18, 2008.  At that time, Dr. Vaisler
diagnosed mild subacrominal impingement of the right shoulder, along with a
possible glenoid labral tear not involving the insertion of the biceps tendon. 
He injected the subacrominal bursa of the right shoulder with a steroid and
local anesthetic solution to see if it would give relief, thereby helping with
the diagnosis.  On follow-up on April 30, 2008, Mr. Vershinin reported that his
right shoulder pain had improved, and he was attending physiotherapy.

[40]        
Subsequent physiotherapy reports indicated that Mr. Vershinin was still
experiencing pain in his right shoulder, and a further follow-up visit occurred
on October 1, 2008.  Mr. Vershinin then reported to Dr. Vaisler that although
his right shoulder pain has improved, it was still bothersome.  In view of
these persistent symptoms, Dr. Vaisler arranged for an arthroscopic
subacrominal decompression of the right shoulder, along with an arthroscopic
debridement or repair of the right glenoid labral tear to be carried out under
general anesthetic on a day care basis.

[41]        
After considering his options, Mr. Vershinin decided by April of 2009 to
proceed with the surgery, and this was ultimately performed on March 31, 2010
at Lions Gate Hospital.  In his report, Dr. Vaisler said this:

Mr. Vershinin sustained an extensive tear of the glenoid
labrum of his right shoulder, along with secondary subacromial impingement as a
result of the motor vehicle accident of April 19, 2005.  The glenoid labral
tear extended from the 10 o’clock position to the 6 o’clock position when
viewed laterally and involved two components. … The large displaced fragment
of glenoid labrum was being impinged between the humeral head and the glenoid
or shoulder socket with reaching activities.  As a result the displaced
fragment was excised.  I also repaired the partial detachment of the long head
of biceps tendon to the superior rim of the glenoid to prevent it from
completely detaching.  The tear of the glenoid labrum most probably was caused
by a combined compressive and shearing force applied to his right shoulder at
the time of the motor vehicle accident.

The forces applied to his right shoulder at the time of the
accident most probably also resulted in an anterior inferior subluxation of the
shoulder with pairing of the glenoid labrum and the anteroinferior glenohumeral
ligament, along with a minor anterioinferior rim fracture of the glenoid.  The
fracture went on to heal in a minimally displaced position and the glenoid
labrum, along with the anterioinferior glenohumeral ligament, also partially
healed in a mildly lengthened position.  The glenoid labrum and anterioinferior
glenohumeral ligament were tightened up and reattached to the anterior rim of
the glenoid with multiple plastic future anchors placed into the glenoid.

He also had evidence of
thickening of the subacromial bursa which would account for the impingement
findings noted pre-operatively and his temporary pain improvement after the
steroid and local anesthetic injection into the subacromial space.  This
impingement most probably resulted from abnormal glenohumeral movement,
secondary to the glenoid labral tear, resulting in the greater tuberosity with
the humorous impinging the subacromial bursa against the overlying acromion
with reaching activities.

[42]        
Dr. Vaisler was not cross examined on his opinion concerning the cause
of the shoulder damage.  He indicated that the recovery period from the
surgical repair would likely take a year or so, and that there was a success
rate of approximately 90% in terms of improving stability.  It was his opinion
that Mr. Vershinin would more likely than not have a minimal permanent
restricted movement of the right shoulder, and that the success rate in
relieving shoulder pain with day-to-day activities ranged from 85% to 90%, but
was only 80% in terms of relieving shoulder pain with activities involving
sustained or repetitive reaching or heavy lifting.

[43]        
The defendants tendered an expert report from Dr. Richard Kendall, an
orthopedic surgeon with a special interest in the upper extremities, who
interviewed and examined Mr. Vershinin in May of 2009, four years after
the collision of April 19, 2005.  Dr. Kendall was also produced for
cross-examination.

[44]        
In his gratifyingly clear report, Dr. Kendall stated that the plaintiff
had sustained the following injuries in the accident:

a)       multiple areas of
contusion including the right wrist, left ribs, left hip and shin, all of which
have completely resolved; and

b)       soft tissue injuries
to the neck and low back ("whiplash-associated disorder and mechanical
back strain"), with respect to which the symptoms have improved but are
not completely resolved.

[45]        
With respect to these injuries, Dr. Kendall expressed the view that
Mr. Vershinin would likely continue to have symptoms for the foreseeable
future, but saw no increased risk of developing degenerative neck or back
disease.  He observed no "non-organic" findings.

[46]        
Dr. Kendall also noted Mr. Vershinin’s problem with the right shoulder
pain, but expressed the view that the plaintiff’s shoulder symptoms were likely
quite separate from the accident:

A period of at least 3-4 months goes by before he starts to
complain of pain.  During this period, he is gardening, golfing, and working
out in the gym.  Had he experienced significant shoulder symptoms, it is
[likely] that he would not have been able to partake in these activities
without bringing ongoing shoulder pain to the attention of his family doctor. 
Therefore, I can only conclude that this is an entity which arose quite
separately from the accident in question.  It is highly unlikely that this
lesion was "quiescent" at the time of the accident in light of the
activities that he was involved in during his recovery period.  Therefore, I
cannot support his current shoulder complaints as being directly caused by the
accident or sequelae of the injuries sustained in the accident.

[Emphasis original]

[47]        
Dr. Kendall was not cross examined on this causation opinion other than
to confirm that he was aware of, but did not discuss in his report, a referral
letter from Dr. Jenkins concerning the shoulder symptoms, which described them
as having existed since the time of the accident.  Dr. Kendall did not, of
course, have the advantage of Dr. Vaisler’s report concerning what he found via
arthroscopic examination when he performed surgery on Mr. Vershinin’s right
shoulder on March 31, 2010.

D. Cause of the
shoulder injury

[48]        
On all of the evidence, I am satisfied that the plaintiff has
established, on a balance of probabilities, that his shoulder injuries were
caused by the motor vehicle collision of April 19, 2005.

[49]        
Although Dr. Kendall’s opinion is logical in so far as it goes, no other
mechanism of injury has been suggested which would appear to have had
sufficient force to cause the kind of damage found by Dr. Vaisler.  Both Dr.
Vaisler and Dr. le Nobel explained how the specific forces of
compression and distraction that were generated by this accident would have
caused these injuries.  Moreover, I find that the existence of an actual fracture
of the shoulder socket as found by Dr. Vaisler (of which Dr. Kendall was
unaware when he prepared his report) supports the proposition that more than
the kind of force generated by day-to-day activities undertaken by a person
with neck and back pain would be necessary to cause the degree of injury that
Mr. Vershinin sustained.

[50]        
Finally, I am satisfied that there is a reasonable explanation for the
absence of any documented complaints about right shoulder pain between the
original complaint to Dr. Jenkins in April of 2005, right after the accident,
and the next-noted  complaints of September 2005 (physiotherapy notes),
and December 2005 (Dr. Jenkins).  This lacuna was the foundation of
Dr. Kendall’s opinion.

[51]        
Dr. Jenkins saw it as a case of the shoulder pain coming back to the
fore once the plaintiff’s neck and back had improved.  The more probable
answer, in my view, is found in the evidence of Dr. Vaisler concerning what he
found upon arthroscopic examination in 2010: the development of a secondary impingement,
resulting from abnormal glenohumeral movement, secondary to the glenoid labral
tear.  Dr. Vaisler explained that this subacromial impingement, commonly termed
"tendonitis" or "bursitis", would commonly present as
shoulder pain with sustained or repetitive reaching at and above shoulder
level, sudden reaching, reaching behind, dressing, lying on either shoulder at
night and heavy lifting.  This is consistent with the evidence of the
plaintiff.  Curiously, Dr. Kendall was not asked by either party whether this
information, which came to light after he prepared his report, would alter his
opinion.

[52]        
In the circumstances, I find that the shoulder problems that began to
plague Mr. Vershinin in the fall of 2005 were due to the development over the
months since the accident of this impingement, secondary to the glenoid labral
tear that was caused by the accident and which, together with the other tears
and fracture, supported the initial complaints.  This development would have
been hastened as the plaintiff’s back and neck pain improved, and he became
more active (as observed by Dr. Jenkins).  It is accordingly not a question of
quiescence, I find, but of the development of further damage from the initial
injury caused by the accident.

E.       Discussion

[53]        
On all of the evidence, I conclude that, as a result of the accident,
Mr. Vershinin suffered soft tissue injury to his neck and lower back which
has improved since the accident, but which continues to cause him difficulty,
more on some days than others.  This is supported not just by his own evidence,
but also by the evidence of Dr. le Nobel and Dr. Kendall.  Although the length
of time since the accident would justify the description "chronic
pain", I am unable to conclude on the evidence that Mr. Vershinin’s situation
reaches the level of others suffering from documented chronic pain syndrome as
considered in cases such as Shapiro v. Dailey, 2010 BCSC 770.

[54]        
At present, Mr. Vershinin’s most significant problem is his right
shoulder.  The evidence establishes a 90% probability that the ultimate effect
of the surgery will be to relieve this pain in most day-to-day circumstances,
with a 20% chance that there will still be pain with some lifting and reaching
motions.

[55]        
Relying on cases such as Van Rossum v. Khan, [1995] B.C.J. No.
1202 (S.C.), Chancey v. Chancey (1999), 86 A.C.W.S. (3d) 885 (BCSC), Fox
v. Danis, 2005 BCSC 102 and Prince-Wright v. Copeman, 2005 BCSC
1306, plaintiff’s counsel submitted that a non-pecuniary award in the range of
$100,000 is justified.

[56]        
Counsel for the defendants relied on the favourable prognosis for the
plaintiff’s shoulder injury post-surgery, and pointed to what he maintained
were the plaintiff’s many activities after the collision.  He submitted that
if, as I have found, the right shoulder injury was caused by the accident, then
the appropriate range for non-pecuniary damages is $45,000 to $60,000.  Mr.
Burnett relied on authorities such as Dial v. Grewal, 2010 BCSC 759.

[57]        
Taking into account the authorities upon which counsel relied, while noting
that, of course, each case turns on its own specific facts, I consider that a
fair award for non-pecuniary damages in this case is $70,000.

PAST LOSS OF INCOME

[58]        
Mr. Vershinin lost no wages as a direct result of the accident.  By this
I mean that there was no sick time for which he was not compensated.  He was,
however, dismissed from his employment with Electronic Arts in February of
2006, along with several other employees, ostensibly as part of a
"workforce reduction".  He was offered a termination package, which
he accepted, signing a release of any claim for wrongful dismissal.

[59]        
I heard no evidence from Mr. Vershinin’s employer.  Mr. Vershinin
testified that the feelings of frustration and impatience to which I referred
above affected his personality and interfered with his ability to get along
with others at the workplace, particularly his supervisor.  He strongly
believed that his employment was terminated not because of any need to reduce
the workforce, but because of these personality changes.  He described the
changes he underwent and his perception of how they affected him in the
workplace.  His belief, however, that they caused or contributed to his
dismissal is not evidence that they did so.

[60]        
When asked why he did not pursue action against Electronic Arts if he
felt that he had been wrongfully dismissed, Mr. Vershinin responded that his
wife had become employed there by that time, and he did not want to rock the
boat for her.

[61]        
The plaintiff led evidence from Mr. Peter Nielsen, who had worked with
Mr. Vershinin at Electronic Arts.  Mr. Nielsen was also let go in February
of 2006 as part of the workforce reduction.  Mr. Nielsen described some changes
in Mr. Vershinin’s personality after the accident.  He said that Mr.
Vershinin had a "more negative outlook".  As an example, he said that
at the weekly team meetings, updates would typically be given for the entire
project team which were usually extremely dull.  Mr. Vershinin, however, had
been in the habit of leading these meetings and making them very funny.  He was
not particularly funny after the accident.  He was described as being
"more on the negative side".  Mr. Nielsen said nothing about any
conflict between the plaintiff and his supervisor.

[62]        
I have no difficulty in accepting that Mr. Vershinin’s personality was
less buoyant following the accident, and that he experienced frustration and
impatience.  Nothing in the evidence, however, supported the contention that
this was viewed negatively by his employer, or that his employer failed in any
way to understand what he had been through.  He met his targets at work, and
his work performance evaluation was satisfactory.  There was simply no evidence
from which I could conclude that, on a balance of probabilities, Mr. Vershinin
was let go for any reason other than the one his employer expressed: workforce
reduction.  For this, Mr. Vershinin was compensated.  It follows that I am
unable to conclude that, but for the accident, Mr. Vershinin would have
remained employed with Electronic Arts.

[63]        
It will come as no surprise that Mr. Vershinin’s income was
significantly reduced after his employment at Electronic Arts was terminated. 
The question then becomes whether he was impaired in his ability to maximize
his income thereafter as a result of the injuries he suffered in the collision.

[64]        
Mr. Vershinin testified that he continued trying to write thereafter,
and followed up all of his contacts in the industry.  As of the time of trial,
he had not yet been offered a position as an employee, but was able to obtain
work from various studios as an independent contractor, including his first
television script, and hired an agent in Los Angeles to help him find
projects.  He attended conventions and kept up his contacts in the industry. 
Unfortunately, these efforts were not successful in replacing his former
income.

[65]        
Mr. Vershinin described his discomfort on activities such as standing,
prolonged sitting, flying, and so on.  On the evidence, however, his discomfort
did not prevent him from writing, nor am I able to find that it prohibited him
from finding work in the entertainment writing industry.  As he himself said,
he does not have all of the required skill set or experience, and a studio is
unlikely to want to pay to have a 38-year-old associate producer sit around in
a room of 25-year-olds.  This harkens back to the consequences of the
termination of his employment at Electronic Arts, but as I have already found,
I cannot attribute that to the accident.

[66]        
No evidence was led from any vocational rehabilitation expert or medical
expert stating that Mr. Vershinin was disabled from any particular kind of
employment, or was less employable.  I am prepared to accept, however, that in
the period following his dismissal from Electronic Arts, the injuries Mr. Vershinin
had suffered in the collision had the effect of reducing the effort he could
put into replacing that employment.  I base this on Mr. Vershinin’s own
evidence, and the medical evidence concerning the nature of his injuries. 
There was, however, little evidence to suggest that but for those injuries, his
income would have been substantially more.  This is because the kind of work
that appeared to be available was not particularly remunerative.

[67]        
Counsel for the plaintiff submitted that at the very least, I should look
at Mr. Vershinin’s average earnings before the accident (2001-2005), and
compare them to the net income he in fact earned since the accident, thereby
arriving at a minimum income loss.  The difference is in excess of $130,000.

[68]        
The evidence does not satisfy me that such a calculation is appropriate
in the circumstances of this case.  The major contribution to the reduction in
Mr. Vershinin’s post-accident earnings was his dismissal from Electronic
Arts.  That was not caused by the accident.  His pre-accident earnings in the
years 2001-2003 were outside of the entertainment industry, and therefore do
not make an appropriate comparison.

[69]        
I conclude that a substantial reduction in his income was inevitable
once he lost his job at Electronic Arts, whether or not he was injured. 
Nevertheless, but for the fact that Mr. Vershinin’s physical condition was
impaired as a result of the accident at the time of his dismissal, I consider
it probable that his income would not have been reduced to the same extent that
it was.

[70]        
Doing the best I can on the evidence I have, I would assess the
plaintiff’s past loss of income at $45,000, consisting of $5,000 for the year
2006, and $10,000 for each of the years 2007 through 2010 (to date), including
the time of his recuperation from his shoulder surgery.  I will leave it to
counsel to calculate the appropriate deduction for income tax based on the
decision of the Court of Appeal in Lines v. Gordon, 2009 BCCA 106.  As
the amount of the loss I have attributed to the year 2005 would appear to be
within Mr. Vershinin’s personal exemption, I would not expect any income tax to
be deducted for that year: see Laxdal v. Robbins, 2009 BCSC 1074.

LOSS OF FUTURE
INCOME-EARNING CAPACITY

[71]        
On the evidence, Mr. Vershinin’s shoulder should recover completely, but
there remains a 20% chance of ongoing pain with some lifting and reaching
motions, and a 10% chance of ongoing pain in most day-to-day circumstances.  In
addition, the medical evidence establishes that he is likely to continue to
suffer from symptoms in his neck and lower back for the foreseeable future. 
There was no expert evidence concerning Mr. Vershinin’s ongoing work capacity
or employability.  There was also no economic or actuarial evidence of the
present value of future losses.

[72]        
It was Mr. Vershinin’s evidence that, having recognized that he is
unlikely to earn a substantial income through writing for electronic games or
television at this juncture, he has applied for employment with the Canada
Border Services Agency.  He testified that it is his understanding that the
application process with the Canadian Border Services Agency is a long one, and
so he started it even though he is still undergoing physiotherapy.  He agreed
under cross-examination that he is pursuing this employment notwithstanding
that he understands that it involves physical activity.

[73]        
The law concerning loss of future income and loss of future income
earning capacity was recently reviewed in Perren v. Lalari, 2010 BCCA
140.  Madam Justice Garson again approved the considerations set out by Finch
J. (now C.J.B.C.) in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353
(S.C.), as previously approved by the Court of Appeal in Kwei v. Boisclair
(1991), 60 B.C.L.R. (2d) 393.  What Mr. Justice Finch had said was this:

The means by which the value of the lost, or impaired, asset
is to be assessed varies of course from case to case.  Some of the
considerations to take into account in making that assessment include whether:

1.         The plaintiff has been rendered less capable
overall from earning income from all types of employment;

2.         The plaintiff is less marketable or attractive as
an employee to potential employers;

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

4.         The plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market.

[74]        
Madam Justice Garson then went on to say this:

[12]      These cases, Steenblok [v. Funk
(1990), 46 B.C.L.R. (2d) 133 (C.A.)], Brown, and Kwei, illustrate
the two (both correct) approaches to the assessment of future loss of earning
capacity.  One is what was later called by Finch J.A. in Pallos [v.
Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A)]
the ‘real possibility’ approach.  Such an approach may be appropriate for a
demonstrated pecuniary loss is quantifiable in a measurable way; however, even
where the loss is accessible in a measurable way (as it was in Steenblok),
it remains a loss of capacity that has been compensated.  The other approach is
more appropriate for the loss, although proven, is not measurable in a
pecuniary way.  An obvious example of the Brown approach is a young person
whose career path is uncertain.

…

[32]      A plaintiff must always
prove … that there is a real and substantial possibility of a future event
leading to an income loss.  If the plaintiff discharges that burden of proof,
then depending upon the facts of the case, the plaintiff may prove the
quantification of that loss of earning capacity, either on an earnings
approach, as in Steenblok, or a capital asset approach, as in Brown. 
The former approach will be more useful when the loss is more easily
measurable, as it was in Steenblok.  The latter approach would be more
useful when the loss is not as easily measurable, as in Pallos and Romanchych
[v. Vallianatos, 2010 BCCA 20].

[75]        
Plaintiff’s counsel argued that Mr. Vershinin satisfies all four of the
considerations discussed in the Brown case because of his physical limitations. 
He submitted that the plaintiff’s future income earning capacity to age 65
amounts to $1,300,000, based on his pre-accident income of $48,000, multiplied
by 27 years.  Plaintiff’s counsel advised that the use of "net present
value computer software" yields a net present value of this loss in the
amount of $897,000, and that a little less than 50% of this, $400,000, would
represent a fair award for loss of income earning capacity based on the capital
asset approach.

[76]        
The difficulty is that, quite apart from the question of how a net
present value should properly be calculated on an evidentiary basis, the
evidence does not come even close to supporting such an award.

[77]        
Reviewing the considerations discussed by Finch J., as he then was, in Brown,
the evidence does not satisfy any of them as things presently stand, given the
favourable prognosis for his shoulder and his own approach to seeking
employment with the CBSA.  What the evidence does show, in my view, is that if
Mr. Vershinin’s shoulder does not recover to the extent predicted, and if
his soft tissue injuries do not slowly resolve or become manageable, both of
which events are within the realm of reasonable possibility, then Mr. Vershinin
will probably become less able to earn income from employment that makes
particular physical demands involving the shoulder and low back, and will
probably be less attractive to employers in that area.  That represents a real risk
to him, because his preferred area of writing may continue to prove unrewarding
for reasons unconnected with the accident.

[78]        
Accordingly, I conclude that based on future possibilities, Mr. Vershinin
is entitled to an award for loss of income earning capacity based on the
capital asset approach.  Assessing the amount to the best of my ability without
the assistance of expert evidence, I would fix the award at $50,000.

LOSS OF HOUSEKEEPING
CAPACITY

[79]        
Mr. Vershinin testified that his ability to contribute to housekeeping
duties, including cleaning, renovation, lawn work and pool cleaning, was
impaired as a result of his injuries, and the burden fell almost wholly upon
his wife.  Since then, they have had a child, Mrs. Vershinin has become
employed and has developed health concerns of her own, and Mr. Vershinin has
undergone shoulder surgery.

[80]        
On this basis, again without any expert evidence, the plaintiff claims
an award of $20,000 as compensation for the cost of hiring assistance to help
with these activities.

[81]        
On the evidence, I am unable to find anything more than a contingent
likelihood that Mr. Vershinin will need to hire assistance that would not have
been required but for the accident.  I note that given his wife’s health
concerns and employment, together with his own employment, it seems likely that
some assistance would have been hired in any event.  I would award $7,000 under
this heading.

FUTURE CARE COSTS

[82]        
Once again, no expert evidence was led in support of a claim under this
heading.  To support the claim, the plaintiff relies upon the decision of
McLachlin J., then of this court, in Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (S.C), and upon the following extract from the report of Dr.
Kendall:

Typically, passive treatment[s]
such as physiotherapy, massage therapy, acupuncture, or chiropractic have no
role in curing disease at this point in time.  However, he has developed a
pattern of the use of massage or PT for severe flare-ups.  It is his choice as
to whether he wants to continue these treatments, although there is nothing to
suggest that they will provide him with a long-term cure.  He is better to
maintain a fitness routine with daily stretching and light strengthening,
including aerobic exercise, weight loss, etc.

[83]        
In my view, the cited passage from Dr. Kendall’s report falls short of
an expert recommendation that the plaintiff continue with any particular
therapy other than exercises he is perfectly capable of undertaking on his own
without incurring expense.  As McLachlin J., as she then was, stated in the Milina
case, "… there must be a medical justification for claims for costs
of future care".  There is none in this case other than the physiotherapy
recommended by Dr. Vaisler following the shoulder surgery.  That, as I
understand it, has been covered.  The learned justice went on to note that it
is not appropriate to take into account "… the cost of amenities which
serve the sole function of making the plaintiff’s life more bearable or
enjoyable", which is the most that can be extracted from Dr. Kendall’s
opinion.  I therefore make no award under this heading.

SPECIAL DAMAGES

[84]        
The plaintiff entered into evidence a schedule of special damages with
supporting documentation, further supported by his viva voce evidence,
yielding a total claim of $8,089.47.  This claim was not challenged in cross
examination, and I award special damages in that amount.

CONCLUSION

[85]        
I assess the plaintiff’s damages arising from the collision of April 19,
2005, as follows:

(subject to reduction to take into
account income tax considerations).

[86]        
The plaintiff is entitled to interest pursuant to the Court Order
Interest Act on his awards for past loss of income and special damages.  In
the absence of any considerations of which I am unaware, the plaintiff is also
entitled to his costs at Scale B.  The parties are at liberty to apply if they
cannot agree on the issue of costs.

“GRAUER J.”