IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101004

Docket: M103282

Registry:
New Westminster

Between:

Andrew David
Fillmore

Plaintiff

And

Margaret Anna
McKay also known as Margaret McKay

Defendant

Before:
The Honourable Mr. Justice Truscott

Reasons for Judgment

[1]            
The plaintiff’s claim is for damages for personal injuries, loss of
housekeeping ability, past and future loss of income earning capacity, future
care costs and special damages.

[2]            
The claims all arise out of a motor vehicle accident the plaintiff was
involved in on May 26, 2005 around 8 p.m. when his bicycle that he was riding
east on Dewdney Trunk Road in Maple Ridge came into collision with a motor
vehicle owned and driven by the defendant that was in the process of making a
left hand turn in front of his direction of travel.

[3]            
While liability was initially denied it was admitted during the course
of the trial and the trial proceeded thereafter as an assessment of the
plaintiff’s damages.

[4]            
The defendant does not deny that the plaintiff was injured in the
collision, but denies the extent of his injuries as he claims, denies they have
any effect on his income earning capacity, both past and future, and denies
they support any award for future care costs as well as for loss of
housekeeping ability.

[5]            
The plaintiff was heading through a green light at the intersection of
232nd Street at about 30 kph when the defendant’s vehicle appeared right
in front of him as it was turning left to enter a gas station. The plaintiff
says he braked hard when he saw the defendant’s vehicle right in front of him
and swerved his bicycle to the left. He hit the passenger door of the
defendant’s vehicle with his right shoulder and right side, taking off the
vehicle’s side mirror with what he says was a significant impact.

[6]            
He says the next thing he recalls is straddling his bicycle; he is not
sure how that came to be. He says he still remembers things fairly well and
doesn’t recall if he blacked out. He spoke to the defendant at the scene when he
was somewhat disoriented and in a state of disbelief and shock that an accident
had taken place. The defendant took him to her house to exchange information
and then drove him home. He drove himself thereafter to the Ridge Meadows
Hospital later that evening.

[7]            
The plaintiff gave a statement to the Insurance Corporation of British Columbia
[ICBC] on June 2, 2005 in which he said he did not hit his head as he could
recall, he did not black out that he could recall, he did not have any bruising
on his head and he remembered everything.

[8]            
When asked about the statement at trial he says he doesn’t believe it was
true then or now that he remembers everything.

[9]            
An eyewitness, Ms. Montecillo said she attended on the plaintiff at
the scene in less than one minute after the collision and he appeared to her to
be lucid and could tell her what day it was.

[10]        
The plaintiff told his family physician, Dr. Buie when he saw her
on May 30, 2005 that he was unable to stop and hit the passenger door with his
right shoulder. He did not tell her that he had lost consciousness.

[11]        
However when he saw Dr. Cameron, a neurologist, on January 29,
2007, he told him that he had no recall of the impact.

[12]        
When he saw Dr. Hershler, a physical medicine and rehabilitation
specialist, on May 1, 2008, he told him that he had hit the vehicle with the
right side of his body and his next memory was of standing upright with his
helmet on, straddling his bicycle.

[13]        
When he saw Dr. Schmidt, a psychologist, on November 5 and 13,
2008, he also said that he remembered hitting the car with his right shoulder
and reported that his next memory after impact was standing over his bicycle.

[14]        
As a result of the impact the plaintiff says he suffered some cuts and
scrapes to his right hand, right elbow, right knee and right ankle, and in the
first several minutes developed soreness to his neck, shoulder, hand and ankle,
all again on the right side, as well as to his low back on the right side.

[15]        
As time went on thereafter over the next few months he says the pain
increased in his shoulder, neck, upper and lower back.

[16]        
Nevertheless he returned to work the day after the accident while in
this pain as he says he was the only provider for the family and didn’t want to
take time off work. He continued to work a regular shift thereafter and
continued to do so up to and including the time of trial.

[17]        
The plaintiff’s work is as a graphic artist working for Associated
Labels where he has been employed since the year 2001.

[18]        
The plaintiff says the pain in his neck, shoulder and back has continued
without any substantial relief through the years up to and including the trial
itself. His physical requirements at work seem to heighten the pain and he says
his constant pain has had a deteriorating effect on the quality of his home
life as well.

[19]        
In addition he complains of headaches from the accident although I
observe from Dr. Buie’s report that he suffered from tension headaches
prior to the accident thought to be caused by his job requirements. The
plaintiff says that prior to the accident he suffered from headaches only once
per month or once every two months but since suffered daily for the first year
after the accident and presently a couple of times per week.

[20]        
The plaintiff and his wife had an understanding from the time of their
marriage in September 1998 that they would share equally the responsibilities
of required work around the house. The plaintiff says after the accident he has
been no longer able to meet his requirements though he says he tries to do some
of the chores. He needs the help of his wife and two children.

[21]        
He says the constant pain has affected his relationship with his wife
and his children. He has become more distant and irritable and easily angered
and has withdrawn from many social activities and church functions. The church
was a very important part of his life together with his wife and he was very
active in it prior to the accident.

[22]        
He says he can no longer physically play with his children because of
the pain it brings on and he has become less affectionate and understanding of
both the children and his wife and this has created tension between him and his
wife.

[23]        
Over the years since the accident he has made a number of efforts at
recovery including taking physiotherapy treatments, chiropractic treatments,
laser therapy, massage therapy and acupuncture. None of these treatments have afforded
any more than short term relief for him leaving him with the same amount of
pain thereafter. He has also taken a number of medications none of which have
seemed to offer much relief either.

[24]        
His sleep has also been affected with it being broken up during the
night by his pain making it difficult for him to get back to sleep thereafter.

[25]        
He resumed commuting to work on his bicycle every day but by the end of
October 2005 found that the pain that he had and the anxiety of being in
traffic was too much for him and he stopped commuting in that fashion. Since
then he has only ridden his bicycle perhaps five times.

[26]        
His status at work has changed since the time of the accident, as has
his income. In 2005 he made $18/hour as a prepress operator or graphic artist,
but presently works as a digital press coordinator making $25/hour. His present
job requires him to interact with other departments but he says his pain causes
him to withdraw and do as much as he can on his own. He sits on an aerobic
exercise ball at his desk and uses an ergonomic keyboard.

[27]        
He took a one year course prior to starting at Associated Labels in 2001
but he says most other operators there have three years of training. There have
been layoffs in the company in the last couple of years and a wage roll back of
10%. The business is highly competitive and he is concerned about losing his job
to a more trained person because of his limited training and problems with his
pain.

[28]        
After the plaintiff married his wife in 1998 he worked for approximately
1½ years as a warehouse manager for Speciality Foods helping to load
trucks and rotate stock. He says he enjoyed the physical requirements and the
people. However the company was sold and moved to Richmond.

[29]        
He then worked six months for a restoration company that went bankrupt.
At that employment there was a lot of physical labour as well.

[30]        
Following that employment he worked for a vending company filling
vending machines but he did not find that job rewarding.

[31]        
His son was born in 1999 and he wanted to earn a better income so he
looked for a one year program with a good practicum in a growing industry and
he chose graphic arts which he continues to enjoy.

[32]        
Since the accident he says two possible job opportunities with other
companies have come his way. One was with a company in Richmond called The
Portables that does designs for kiosks. It was offering two or three dollars
more per hour but he says he turned down this opportunity because he thought
it would be too taxing on him physically to have to commute from Maple Ridge where
he lives since driving for long periods of time aggravates his pain.

[33]        
He says that but for this accident he may have considered a commute
although he acknowledges the amount of time away from his family was also a deterrent
as was the fact that he would only get two weeks holidays when he wanted three weeks
and the position was not as originally told to him as it involved more clerical
work rather than design work.

[34]        
The other company was a competitor of Associated Labels, Fastik Label
and Supply Inc. in Langley. The plaintiff says there he could have made
approximately $5,000 more per year than he is making at Associated Labels but
he says he turned this opportunity down as well because he wasn’t sure if it
would be as accommodating for him with an ergonomic keyboard and an exercise
ball to sit on, although he never approached the company with this inquiry in
the interview he had. In addition there was a lot more interaction required
with other departments as it was more of a management position and he felt
inadequate doing this on a daily basis. He says he had a two hour
interview with the company but when called back for a second interview
indicated that he was no longer interested and did not go.

[35]        
The plaintiff’s supervisor at Associated Labels, Mr. Holme confirms
there are some physical demands associated with the plaintiff’s job and says he
has heard the plaintiff complain of back pain. He also confirms that most
applicants have more education than the plaintiff as the plaintiff’s skills are
limited to print and not web when most applicants have both skills.

[36]        
However he says he has not offered any accommodation to the plaintiff as
a result of his injuries and he says a graphic artist’s work is generally not
heavy work although it is very fast-paced work.

[37]        
He says that approximately one year ago 30% of the company workforce was
laid off and three graphic artists were laid off within a few months and not
replaced. As supervisor he has input into who is hired and fired related to his
department and he says that about 25% of his decision on hiring is based on
education and 75% on experience.

[38]        
He had a hand in the graphic artist layoffs one year ago. The plaintiff
is still under his supervision and is still in charge of the digital
department.

[39]        
Prior to the accident the plaintiff enjoyed the recreational activities
of camping, canoeing, hiking, soccer, street hockey, kickball, rock climbing
and rollerblading. Since the accident he has only canoed twice in the previous
four to five years as he cannot carry a canoe now and the paddling motion puts
a strain on his shoulder and neck.

[40]        
He still goes for walks periodically but for no more than one hour on a
light trail, but has not camped overnight as he did before. He used to play
kickball, soccer and street hockey on an occasional basis within the
neighbourhood, but has not done those activities since the accident.

[41]        
Rock climbing was a favourite activity that he used to do regularly
before the accident. He describes it as an incredibly physically demanding
activity which he enjoyed. Since the accident he says he has tried climbing in
a gymnasium only once but found it too physically demanding.

[42]        
The plaintiff kept a journal after the accident and on July 9, 2005 recorded
in his journal that he fell at work on his right side and aggravated his neck
and shoulder. In his note he said “it’s back to the constant pain of a month
ago, back on Advil.” The plaintiff says that at that time he was on a new bike
with new shoes and the bike toppled over when he was at a standstill.

[43]        
The plaintiff’s wife confirms the plaintiff’s description of his life
before and after the motor vehicle accident.

[44]        
She describes the plaintiff prior to the accident as a very
compassionate and gentle husband. Domestic duties were shared equally. Their
social life revolved around the church and they were very active with a large
group of friends. When their children came along they continued to socialize
with friends who were also parents.

[45]        
She confirms the plaintiff enjoyed the recreational activities he
outlined in his own evidence.

[46]        
Subsequent to the accident she confirms that his recreational activities
have fallen off and he has become an impatient and easily irritated person,
though she still loves him. She says she has had to be stronger to take his
outbursts and instability. He has taken a number of medications over the years
since the accident and at home often has an icepack on his back while watching
television.

[47]        
She feels that in some ways she has to protect their two children from
him as they always want to know why he loses his temper.

[48]        
She also says there has been a change in his memory since the accident.
He now tends to be forgetful such as when he is sent to the grocery store for
something and comes back without it.

[49]        
She says she now does 80% or more of the housework and the plaintiff
only does the light work such as folding laundry. Sweeping the floor causes him
pain. When she recently asked him to vacuum while she was out she came home to
find him on the couch unable to finish the job.

[50]        
She says a normal day for the plaintiff entails him taking medication
and using icepacks sometimes during the day to avoid a meltdown occurring.

[51]        
Some days the plaintiff comes home from work when he doesn’t seem to be
in much pain but there is always some pain.

[52]        
In her view the biggest change in her husband is that he has become
emotionally disconnected. Prior to the accident he could talk about what
irritated him but since he has become distant and doesn’t know how to vocalize
what he is feeling.

[53]        
She agrees that she may have told Dr. Schmidt, the psychologist,
that the plaintiff’s blowups seem to be associated with fatigue but she cannot
remember now saying that to him.

[54]        
She manages the family finances and says ICBC paid the majority of the
plaintiff’s treatment costs at the beginning, but since ceasing to do so the
plaintiff and she have incurred considerable expense. She has kept some
receipts for payments but not all. She says altogether they have spent
approximately $8,500 for expenses not covered by medical insurance or ICBC,
including approximately $1,000 for medication, approximately $1,100 for
chiropractic treatments, $550 for laser treatments, $210 for massage therapy,
$385 for acupuncture treatments, approximately $300 for physiotherapy
treatments and $80 for visits to a gym.

[55]        
Mr. Shimmin is a good friend of the plaintiff’s and he visited with
the plaintiff and his wife every six weeks or so for five years prior to the
accident. Since the accident he says they still get together to have dinner and
the frequency hasn’t changed but the evenings now are shorter because the
plaintiff becomes uncomfortable sitting for any length of time. The plaintiff
sits on an exercise ball for dinner.

[56]        
He says that following the accident the first time he saw the plaintiff
he looked very stiff when he moved and he still moves that way every now and
then presently, but now it is not nearly as bad although he turns slowly and
deliberately.

[57]        
Another friend, Mr. Morton, first met the plaintiff in November
2005 after this accident, and worked with him at Associated Labels until
February 2009. He also saw the plaintiff outside work once every six to eight weeks
and still sees the plaintiff as frequently now.

[58]        
He considered the plaintiff hard working and dedicated at his job. He
says the plaintiff’s moods were up and down quite a bit and he was sometimes
irritable if he had a big work load and had to sit for long stretches. He saw
the plaintiff trying different chairs and balls to sit on. For any physical
lifting or twisting the plaintiff needed help from others. Mr. Morton also sat
on an exercise ball at work.

MEDICAL EVIDENCE

[59]        
Dr. Buie, the plaintiff’s family doctor, says that the plaintiff
sustained soft tissue injuries to his neck, right shoulder and thoracic back
muscles. She describes him as dealing with chronic pain and non-restorative sleep
(lack of deep sleep for 90 minutes) in spite of attempting many modes of
therapy. She allows for the possibility of a minor concussion at the time of
the accident although she agrees the plaintiff never said to her that he lost
consciousness at the time. She says any loss of consciousness could only have
been for a fraction of a second.

[60]        
In her view as the accident is now over five years past it is highly
unlikely the plaintiff will fully recover and quite unlikely he will recover
enough to enjoy physical activities beyond what he is presently capable of
doing.

[61]        
She agrees that soft tissue injury symptoms usually present themselves
fairly soon following trauma – up to one week after the occurrence, and develop
thereafter and the usual recovery period for mild injuries is three to six
months.

[62]        
She agrees the plaintiff did not complain to her of low back pain until
his visit of July 25, 2005 although I observe that in his visit of June 13,
2005 she recorded his lumbar spine as stiff with motion, especially with
extension.

[63]        
She also agrees that an increase in activities after the initial
injuries could increase the symptoms and a subsequent slip and fall could
explain the low back pain or for that matter any injury.

[64]        
She agrees that if the plaintiff’s neck and shoulder pain were
aggravated by a slip and fall after May 26, 2005 and prior to July 25, 2005 it
could create more problems, last longer and intensify symptoms. However she
cannot say whether his fall at work on July 9, 2005 where he says he aggravated
his neck and shoulder made any difference to the duration of his symptoms.

[65]        
Dr. Cameron, a neurologist, saw the plaintiff on January 29, 2007
at the request of his lawyer. He says he relied on the information obtained
from the plaintiff being accurate and his opinions are largely based on this
information. The plaintiff told him that he had no recall of the impact.

[66]        
In his report Dr. Cameron expresses the opinion that the plaintiff
probably sustained a traumatic brain injury at the time of the accident. Based
on the plaintiff having no recall of the impact and his next recall being of
standing beside his bicycle several seconds up to a few minutes later at the
scene of the accident, it is his opinion that the plaintiff lost consciousness
briefly and had a period of amnesia for a minute or few minutes in duration
following the impact.

[67]        
He refers to the plaintiff’s difficulty with concentration and problems
with irritability, mood swings, sleep disturbance, behavioural changes and
forgetfulness as cognitive problems and physiological problems due to the
residual effects of the mild traumatic brain injury, in the form of post-traumatic
brain injury syndrome or post-concussion syndrome.

[68]        
He agrees that while the majority of people improve from such a
traumatic brain injury or concussion in six to twelve months a minority can
last longer.

[69]        
The plaintiff reported to him that he was suffering from ongoing neck
and back pain which was present since September 2005 and told him that he
didn’t recall why the pain started in September 2005.

[70]        
He reported to Dr. Cameron that the pain and discomfort,
particularly the back and neck pain, had actually increased in severity over
time. Dr. Cameron says that the patient’s reported increasing pain and
deterioration of symptoms over time, contrary to the usual pattern of improving
over time, is usually due to another event occurring or due to psychological
problems that have developed as a result of the original injuries.

[71]        
In his view the plaintiff’s increased irritability, irrational behaviour
and anger outbursts are probably due to his development of psychological
problems.

[72]        
For this reason Dr. Cameron recommended in his report that the plaintiff
be assessed by a psychologist and undergo neuropsychological testing as well as
psychological counselling if recommended.

[73]        
He agrees that chronic pain and fatigue can also affect memory,
concentration, mood swings and irritability and says a psychologist can sort
out whether the symptoms the plaintiff has are due to chronic pain or traumatic
brain injury. He says it is not a perfect science.

[74]        
He expresses the opinion in his report that the plaintiff has possibly
suffered a focal traumatic brain injury involving the frontal temporal regions
of his brain which have an effect on behaviour and personality. He therefore
also recommends an MRI brain scan be undertaken.

[75]        
He also recommends a referral to a physical medicine rehabilitation
specialist for the plaintiff’s ongoing physical limitations.

[76]        
He says it is probable the plaintiff will improve further over the next
few months but recommends the reassessment of the plaintiff by a neurologist
following psychological intervention and following a supervised rehabilitation
program to give a more accurate long term prognosis should the plaintiff remain
symptomatic at that time with respect to ongoing cognitive problems.

[77]        
Dr. Cameron makes a point in his report of saying he did not review
the pre-accident and post-accident medical history of the plaintiff and a more
complete opinion from him would follow a review of those records.

[78]        
At trial Dr. Cameron agrees that his opinion of traumatic brain
injury or concussion would change if the plaintiff recalled the whole accident,
but he says it would not change if the plaintiff only recalled a split second
of impact and thereafter his first recollection was standing beside his
bicycle.

[79]        
Dr. Schmidt is a psychologist who examined the plaintiff on
November 5 and 13, 2008 and did a psychological and neuropsychological
assessment of him. He reviewed the records of Dr. Buie and the report of Dr. Cameron
and in his report came to the conclusion, as he puts it, that although it is by
no means certain that the plaintiff suffered a mild traumatic brain injury he
would consider it more likely than not that he did. That said he believes it
was an extremely mild injury, a concussion and very temporary.

[80]        
His cognitive testing revealed intact functioning in most areas but with
a demonstrated weakness in one area which he pointed out could equally be due
to mild traumatic brain injury or to other factors including emotional
disruption and physical factors such as pain or fatigue.

[81]        
His testing of emotional functioning indicated significant levels of
anxiety, irritability and depression together with increased susceptibility to
stress. He diagnosed the plaintiff as suffering from an adjustment disorder
with depressive and anxious features. In his view the adjustment disorder,
which he says is not a full-blown depression or anxiety disorder, is in
response to the pain as well as to the changes in his lifestyle and he
expresses the view that treating this condition will be difficult, unless and
until the pain problems can be eliminated.

[82]        
He concludes that it is not likely, although not impossible, that any of
his persisting problems arise from damage to the brain.

[83]        
He also recommended psychological intervention in his report to focus
specifically on the plaintiff’s symptoms of anxiety, irritability,
discouragement and depression.

[84]        
He contemplated the psychological intervention to be cognitive
behavioural therapy but says that he does not know the plaintiff’s state since
his report of December 1, 2008 and is not in a position to prescribe this
treatment now.

[85]        
He suggested in his report of December 1, 2008 it would be appropriate
for him to see the plaintiff again in approximately one year but he has not
seen the plaintiff since.

[86]        
He says the plaintiff could be taught some more effective methods of
coping adaptively with his pain although this is not to imply that his pain is
psychological in origin.

[87]        
He considers the plaintiff’s prognosis to be difficult to determine as
on the one hand his problems have persisted for a significant period of time
and are not likely to spontaneously abate, while on the other hand he has yet
to receive appropriate psychological intervention which Dr. Schmidt
considers fairly likely to be beneficial given the plaintiff’s motivation and
level of emotional health and intelligence.

[88]        
Dr. Hershler is a physical medicine and rehabilitation specialist
that initially examined the plaintiff on May 1, 2008. He also reviewed a number
of medical records. He performed a brief mental status examination followed by
a physical examination.

[89]        
He diagnosed the plaintiff as having a mild traumatic brain injury
(concussion) based on the history and on the small changes that he saw on his
mental examination. He also diagnosed soft tissue injury to the spine although
movements of the head and neck were normal, the plaintiff had full shoulder
movements and his neurological examination was completely normal.

[90]        
Dr. Hershler says that temporal proximity is one factor in
determining whether the pain symptoms have been caused by injuries in a motor
vehicle accident, but it is not a definitive factor as pain can arise later on.
He says that if there is a time period of two months between a traumatic event
and the symptoms it would depend on what the person had been doing in that
period of time because if he was resting in that period that might mask the
pain. He also says that if a person has severe symptoms in one area of his body
that could mask the symptoms in another area that the person is not concerned
about at the moment.

[91]        
In his first report of May 1, 2008 he said the prognosis for full and
complete recovery was guarded based on the fact that the plaintiff still had
problems of a cognitive nature, had changes in personality and had chronic
pain, almost three years post-accident.

[92]        
He recommended in his first report that the plaintiff undergo a
neuropsychological consultation and he said he would defer to a
neuropsychologist for recommendations on counselling. The plaintiff told him
that he had begun to notice changes in his cognition a few months after the
accident in terms of short term memory and concentration problems as well as
patience problems. Dr. Hershler said that pain and fatigue can cause these
problems and that is why he recommended a psychological assessment in his first
report.

[93]        
He also recommended pulsed signal therapy, a new technology for the
treatment of chronic soft tissue pain involving nine one hour treatments for
the upper body and a similar program for the lower body.

[94]        
Finally, he also recommended ongoing activity of walking and stationary
biking.

[95]        
He expressed the view in his first report that he could not be sure if
any or all of his recommendations would lead to full recovery and he considered
it likely that the plaintiff would continue dealing with his symptoms for the
foreseeable future.

[96]        
In a follow-up report of March 30, 2010 based upon a further visit with
the plaintiff on March 29, 2010 Dr. Hershler reported that the physical
examination was basically the same although a mental status examination showed
some improvement.

[97]        
In that report Dr. Hershler came to the diagnosis that the
plaintiff has chronic pain and the fact the pain has not resolved for almost
five years implies to him that it is likely the plaintiff will continue having
to deal with chronic pain in the future.

[98]        
At trial he confirms his opinion that the plaintiff would benefit from
pulsed signal therapy at a full cost of $2,000. He cannot be certain the
treatment will lead to complete resolution of symptoms but he believes it has a
definite chance of assisting with pain management. He says that if the
plaintiff were to notice a reduction in pain levels he would then need training
from a physiotherapist/trainer in order to build up core muscle strength and
improve flexibility.

[99]        
He says that the only pulsed signal therapy clinics in Canada are one in
Eastern Canada and his own office in Vancouver. He says that he has been doing
this therapy for 15 years and he says that the literature shows a 70% chance of
improvement in lowering the pain level.

[100]     The
defence had the plaintiff examined by Dr. Schweigel, an orthopaedic
surgeon, who saw the plaintiff on April 1, 2008.

[101]     The
plaintiff told him that he couldn’t recall when his mid and low back pain
started although he thought it started right after the accident but his neck
pain and shoulder pain were so bad that he couldn’t concentrate on other areas.

[102]     The
plaintiff told him that his neck pain seemed to ease slightly and his low and
mid back pain increased over time and at the time he saw Dr. Schweigel
these areas were worse than the neck pain.

[103]     He denied
to Dr. Schweigel being depressed.

[104]     Dr. Schweigel
diagnosed the plaintiff with soft tissue injuries to the neck, right shoulder
and back as well as to the right hand, right knee and ankle and he attributed
the cause of these injuries to the motor vehicle accident.

[105]     He says
that the pain in the plaintiff’s neck, thoracic and lumbar spine is probably
soft tissue pain that should gradually disappear over the following two years
after his report.

SUBMISSIONS

[106]     Plaintiff’s
counsel submits the evidence shows that the plaintiff continues to suffer from
soft tissue injuries to his neck, back and shoulders all as a result of the
motor vehicle accident.

[107]     It is also
submitted that the evidence shows that the plaintiff suffers from emotional and
psychological injuries, depression, increased anxiety, irritability and
irrational behaviour.

[108]     It is
submitted that he did not pursue psychological counselling because it was only
a general recommendation and also because he considers there to be a stigma
associated with that therapy in terms of having to accept that he has a mental
problem.

[109]     It is
submitted the evidence of Dr. Cameron and Dr. Schmidt should be
accepted that the plaintiff suffered a concussion or a mild traumatic brain
injury with associated symptoms of post-concussion syndrome.

[110]     It is
submitted that the evidence demonstrates that he is now in chronic pain, it now
being almost five years after the accident, and his condition is permanent.

[111]     It is
submitted that the plaintiff has appropriately attempted to mitigate his
injuries by taking all sorts of therapies as recommended and consumption of
painkillers. However his symptoms continue.

[112]     His recreational
activities have been eliminated or significantly reduced and his family life
severely adversely affected.

[113]     It is
submitted that the plaintiff’s non-pecuniary damages should be assessed in the
range of $100,000-$150,000.

[114]     It is
submitted with respect to his claim for past loss of earning opportunities that
he gave up the prospects of employment with Fastik Label and The Portables
and his loss should be assessed in the order of $25,000‑$35,000.

[115]     On the
claim of loss of future income earning opportunity it is submitted that the
plaintiff may not be able to continue with his present employment as a graphic
artist at Associated Labels through to his planned retirement, whenever that
might be, as he does not have the qualifications of the other graphic artists
in terms of education nor the ability to work with web designs.

[116]     With his
constant pain he is no longer able to take on alternative employments of
labouring jobs as he once did in the past and it is submitted that this claim
should be assessed in the order of $100,000-$150,000.

[117]     For the
claim of loss of housekeeping capacity it is submitted that the evidence
demonstrates that he can no longer share the housekeeping responsibilities
equally with his wife as they had agreed to at the time of their marriage and is
now only able to perform approximately 20% of the household chores as stated by
his wife.

[118]     It is
submitted that this claim should be assessed in the order of $10,000‑$15,000
as a separate claim or alternatively included as part of the claim for non-pecuniary
damages.

[119]     For future
cost of care it is submitted that the plaintiff’s treating physicians and other
caregivers have made various recommendations for future care including physiotherapy
or massage therapy, pulsed signal therapy and psychological counselling, and
this claim should be assessed in the order of $24,500‑$32,000.

[120]     For
special damages it is submitted that they should be accepted in the amount of
$8,500 on the evidence of the plaintiff’s wife.

[121]     Defence
counsel submits that non-pecuniary damages should be assessed in the order of $35,000-$50,000
for the injuries to only the plaintiff’s neck and right shoulder area. It is
submitted that he only suffered a minor soft tissue injury to those areas and
that his complaint of a sore back is unrelated to the motor vehicle accident. His
first complaint to Dr. Buie of back pain was only on July 25, 2005 and he
told Dr. Cameron that his first complaint of back pain was in September of
2005.

[122]     Further it
is submitted that his neck and shoulder symptoms were clearly aggravated by his
subsequent fall from his bike on July 9, 2005.

[123]     The physical
examinations carried out by his physicians were normal. While Dr. Schmidt
said that the plaintiff was suffering from an adjustment disorder due to pain
complaints it is submitted that any adjustment disorder was not due to ongoing
pain from the accident when the medical evidence was that soft tissue injuries
generally heal over time and the only injuries from this accident were to his
neck and right shoulder area that resolved fairly soon.

[124]     For the
claim of concussion it is submitted that there is no evidence that the
plaintiff lost any consciousness and in fact the plaintiff has admitted himself
that he did not lose consciousness. At best the evidence is equivocal and even
if he did sustain a concussion it is extremely mild and any symptoms were
short-lived.

[125]     It is
further submitted that the plaintiff has failed to mitigate his claim for
personal injuries by failing to engage a personal trainer or a kinesiologist as
recommended by Dr. Weiss and Dr. Buie. In addition Dr. Schmidt
recommended psychological intervention and the plaintiff has not pursued that
course either.

[126]     It is
submitted that there should be a 10% reduction in the plaintiff’s claim for
non-pecuniary damages for failure to mitigate.

[127]     On the
claim for loss of housekeeping capacity it is submitted that absent any
evidence of the number of hours that the plaintiff has lost from this endeavour
it should be considered only as part of the claim for non-pecuniary damages.

[128]     For the
claim of past loss of earning opportunity it is submitted that the evidence
concerning his approaches to The Portables and Fastik Label do not indicate any
prospect of taking those employments nor any reason not to take those
employments because of injuries from the motor vehicle accident.

[129]     It is
pointed out that in November of 2008 the plaintiff told Dr. Schmidt that
he had no intention of leaving his present employment with Associated Labels
and that he enjoys his work as a graphic artist.

[130]     It is
submitted that this claim should be denied in its entirety.

[131]     The same
submission is made with respect to the claim for loss of future earning
capacity.

[132]     It is
submitted there is no evidence that the plaintiff lost out on any promotions at
Associated Labels nor is in any danger of losing his employment there.

[133]     It is also
submitted that there is no evidence he is incapable of doing any heavier work
activities if he had to turn to that type of employment in the future.

[134]     Dr. Schweigel
has indicated that heavy lifting would only have been contraindicated for the first
three to six months.

[135]     No
functional testing has been done of the plaintiff that has been tendered as
evidence and there is no evidence of any real risk that any impairment that the
plaintiff still has would lead to any loss of income for him in the future.

[136]     On the
claim for future care costs it is again submitted there is no evidence of any
future care costs. Any ongoing complaints it is submitted are not due to
injuries in the accident.

[137]     While Dr. Schmidt
recommended psychological testing there is no evidence of the duration of that
proposed testing nor the cost.

[138]     With
respect to Dr. Hershler’s pulsed therapy it is pointed out that he is
promoting his own clinic in that regard.

[139]     For the
claim of special damages it is submitted that on the plaintiff’s wife’s
evidence the special damages should not exceed $1,500-$2,000.

ANALYSIS AND DECISION

Non-pecuniary Damages

[140]     I accept
that the plaintiff developed back pain from the motor vehicle accident along
with injuries to his neck and shoulders.

[141]     I conclude
that his back pain existed from an early time after the accident but was not
foremost in his mind as his other injuries to his neck and shoulders were more
dominant in his mind at that time. Dr. Hershler allows for this
possibility that the plaintiff’s other injuries masked his back symptoms for a
time and I conclude that this is in fact what happened.

[142]     It was
only when the other injuries subsided somewhat that the plaintiff’s back pain assumed
a more dominant role.

[143]     Apart from
the plaintiff’s own evidence that he had back pain immediately after the
accident, which evidence I accept, I observe that according to Dr. Buie he
complained of a stiff neck and stiff back to her when she saw him on June 13,
2005 and of back pain when she saw him on July 25, 2005.

[144]     I
recognize that Dr. Cameron says the plaintiff told him that his neck and
back pain were present since September 2005 but I conclude Dr. Cameron’s
note must be wrong because it is clear that the plaintiff had neck pain from a
time earlier than that.

[145]     The
plaintiff took a fall at work on July 9, 2005 when he says in his note that he
aggravated his neck and shoulder. The defendant submits that this was a new
incident not caused by him that should serve to reduce the plaintiff’s personal
injuries for which he has liability from the motor vehicle accident. The
defendant even submits that it may have been this incident of July 9, 2005 that
caused the plaintiff’s back injury because his first complaint to Dr. Buie
was not until after that.

[146]     I have
already concluded that the plaintiff’s back injury occurred in the motor
vehicle accident and not subsequently by this bike accident. The plaintiff does
not say in his note that he aggravated his back on July 9, 2005, but only his
neck and shoulder.

[147]     As to the
possible aggravation of his neck and shoulder injuries, Athey v. Leonati,
[1996] 3 S.C.R. 458, makes it clear that the defendant remains liable where his
negligence caused or contributed to the injuries and that liability is not reduced
by any non-tortious contributing causes.

[148]     Accordingly,
even if the plaintiff’s neck and shoulder injuries were aggravated by this
non-tortious incident, the defendant is still fully responsible for the full
extent of those injuries because his negligence caused them in the first place
and thereby contributed to the extent of the injuries.

[149]     I also
accept the opinion of Dr. Cameron, the neurologist, that the plaintiff
probably sustained a mild traumatic brain injury in the accident. However I do
not accept that his difficulties of irritability, mood swings, sleep
disturbance, and behavioural forgetfulness have been caused by post-traumatic
brain injury syndrome or post-concussion syndrome.

[150]     Dr. Cameron
recommended that the plaintiff be assessed by a psychologist for his
irritability, irrational behaviour and anger outbursts as potential
psychological problems. He agreed that chronic pain and fatigue can also affect
memory, concentration, mood swings and irritability, and he left that to a
psychologist to sort out the cause.

[151]     Dr. Schmidt
is that psychologist the plaintiff went to see for an assessment. While his
opinion is that it is more likely than not that the plaintiff did suffer an
extremely mild traumatic brain injury, he says that consisted of a very temporary
concussion.

[152]     He also
concludes that it is not likely that any of the plaintiff’s persisting emotional
problems arise from any brain damage. He considers it just as likely the
plaintiff’s emotional problems are due to physical factors such as pain and fatigue.
He diagnosed the plaintiff as having an adjustment disorder in response to the
pain and he recommended psychological intervention to focus on the plaintiff’s
symptoms of anxiety, irritability, discomfort and depression.

[153]     It is Dr. Schmidt’s
opinion that I accept. On the plaintiff’s evidence of his memory of the motor
vehicle impact I conclude he probably blacked out or was rendered unconscious
for a fraction of a second or mere seconds before finding himself straddling
his bike or beside his bike. It was a very momentary and mild unconsciousness
and the plaintiff’s subsequent problems of irritability and mood swings, sleep
disturbance and all behavioural changes in my opinion are more likely due to
his ongoing physical pain that he has been suffering.

[154]     As to any
difficulty with the plaintiff’s concentration I must reject this as a complaint
as there was no evidence at trial from the plaintiff of any such problem.

[155]     Dr. Schmidt
recommended cognitive behavioural therapy in his report of December 1, 2008 and
suggested he see the plaintiff again in one year’s time. This did not happen.

[156]     The
plaintiff has not received this cognitive therapy nor any mental therapy
including pulsed signal therapy proposed by Dr. Hershler, so there is no
current medical diagnosis of the plaintiff’s mental state nor any evidence of
what it might be after psychological intervention as recommended.

[157]     I do
accept the evidence of the plaintiff and his wife as to the pain the plaintiff
is experiencing and its effect on his family life and his recreational
activities. However, without a current prognosis based on the recommended
psychological intervention, I am unable to conclude that the plaintiff has
proven his emotional problems are chronic or permanent. However I do accept the
opinions that the plaintiff’s physical pain is probably chronic by now, at
least to some degree.

[158]     In
reviewing the plaintiff’s cases cited to me I consider the case of Szymanski
v. Morin, 2010 BCSC 1, as affording assistance to me on the proper measure
of damages for non-pecuniary loss, although I recognize that no two incidents
of injuries and consequences can ever be the same.

[159]     In Szymanski
the plaintiff was found to have sustained soft tissue injuries to his neck that
had developed an element of chronic pain four years after the accident
affecting his work, his recreational activities and his ability to contribute
to household chores. Non-pecuniary damages were assessed in the amount of
$75,000. That amount was stated to include any claim for loss of housekeeping
capacity.

[160]     I also
assess the plaintiff’s non-pecuniary damages in the amount of $75,000 and I
include in that amount his claim for loss of housekeeping capacity.

[161]     The
defendant submits that this award should be reduced further by 10% for a
failure of the plaintiff to mitigate the effect of his injuries by engaging a
personal trainer and pursuing psychological intervention as recommended by Dr. Schmidt.

[162]     My award
of $75,000 also takes into account that the plaintiff has not pursued the recommended
psychological intervention, and accordingly is unable to prove that his mental
or emotional problems are permanent without pursuing this recommendation. Accordingly
there is no justification for reducing his non-pecuniary award further.

Past Loss of Earning Opportunity

[163]     The
plaintiff returned to his employment as a graphic artist full-time after the
accident without any loss of income from that employment. In fact since that
time his income from that employment has increased.

[164]     On the
claim that he may have taken alternative more remunerative employment at The
Portables or at Fastik Label if not for the injuries he sustained in this motor
vehicle accident, the evidence does not support that as a probability or a possibility.

[165]     The
plaintiff did not pursue the employment prospect at The Portables because it
offered less holiday time and required a long commute for him that would take
him away from his family for a longer period of time. It also offered more of a
clerical position than he was interested in. He did not pursue this prospect
further for reasons other than the injuries in this accident.

[166]     With
respect to his interview at Fastik Label he also had no real interest in this
employment for reasons apart from his injuries. This is demonstrated by the
fact that he did not even inquire from the company whether he would be allowed
to sit on an aerobic ball and use an ergonomic keyboard, very small matters
that would be of no consequence to any employer.

[167]     I decline
to award any amount for this claim.

Loss of Future Earning
Capacity

[168]    
Plaintiff’s counsel submits that the plaintiff could still lose his
employment at Associated Labels because of his injuries. However that has not
happened to date and it did not happen when his department downsized one year
or so ago. If it was going to happen because of his injuries and any altered
behaviour on his part, in my view it would have happened then. His supervisor
does not think he has had to accommodate the plaintiff at all and obviously by
the fact the plaintiff was not let go at that time he was considered to be more
valuable to the company than the other graphic artists who were let go at that
time.

[169]     If the
plaintiff loses his employment there in the future in my opinion it will be
because of his more limited skills than the other graphic artists or for
reasons other than his injuries. On the evidence it would be mere speculation
to conclude it would even possibly be because of his injuries and behaviour
because he has continued to be employed there for five years post-accident and
through a time period when other graphic artists were let go.

[170]     In a
fairly recent decision of our Court of Appeal in Perren v. Lalari,
2010 BCCA 140, Madam Justice Garson writing the decision for the Court
reviewed a number of decisions on this issue of loss of future earning capacity
as a capital asset. One decision she reviewed was Pallos v. Insurance Corp.
of British Columbia (1995), 100 B.C.L.R. (2d) 260, relied upon by the
plaintiff here. She concluded that Pallos is not authority for the
proposition that, in the absence of any real possibility of a future loss, the
plaintiff is nonetheless entitled to an award for loss of earning capacity.

[171]     Reliance
was also placed in Perren on the decision of Donald J.A. in Steward v.
Berezan, 2007 BCCA 150, where he said that an inability to perform an
occupation that is not a realistic alternative opportunity, does not constitute
proof of a future loss. Approval was also given to the decision of Bauman J. (now
C.J.) in Chang v. Feng, 2008 BCSC 49, where he said the court must first
inquire into whether there is a substantial possibility of future income loss
before the court embarks on assessing the loss under either the capital asset
approach or the real possibility approach.

[172]     Madam
Justice Garson concluded that a plaintiff must always prove there is a real and
substantial possibility of a future event leading to an income loss.

[173]     The
plaintiff gave up his labouring jobs when his son was born in 1999 and he
wanted to earn a better income for his family.

[174]     I do not
consider that kind of employment to now be any realistic alternative employment
for the plaintiff on the evidence, even if he should lose his job for any
reason.

[175]     This claim
for loss of income earning opportunity is also dismissed.

Future Care Costs

[176]     Plaintiff’s
counsel seeks an award for future care costs for the management of the
plaintiff’s injuries. He puts the claim in the range of $24,500 to $32,000 with
no indication of how he arrived at that range nor what evidence would support
it.

[177]     The only
evidence of future care costs comes from Dr. Hershler who says his pulse
signal therapy would cost $2,000. However there is no evidence from the
plaintiff he will take this new therapy considered to be new technology that is
only available locally from Dr. Hershler when it had already been recommended
as early as May 1, 2008. There is a recommendation for a psychological
intervention, and that will undoubtedly cost money, but again there is no
evidence of any costs associated with that therapy. To date the plaintiff has
refused to take any psychological intervention.

[178]     I decline
to award any compensation for this claim as well.

Special Damages

[179]     The
plaintiff’s wife says they have incurred costs of approximately $8,500 for
expenses for the plaintiff associated with his injuries, not covered by ICBC nor
private insurance, such as chiropractic and physiotherapy treatments. She has
only kept receipts for $1,652, and her individual estimations only total
approximately $3,700.

[180]     Defence
counsel suggests an order of $1,500-$2,000 would be an appropriate amount. I am
prepared to make an award in the amount of $3,000 for this claim.

[181]     In summary
I award the following:

(a)      for
non-pecuniary damages to include loss of housekeeping ability – $75,000;

(b)      past
loss of income-earning capacity – Ø;

(c)      future
loss of income-earning capacity – Ø;

(d)      future
care costs – Ø;

(e)      special
damages – $3,000.

[182]    
In the absence of any further submissions the plaintiff will have his
costs of the action throughout.

“The Honourable Mr.
Justice Truscott”