IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110105

Docket: M054338

Registry:
Vancouver

Between:

Ratomir Stevanovic

Plaintiff

And

Stevan Petrovic

Defendant

Before:
The Honourable Mr. Justice Sigurdson

Reasons for Judgment

INTRODUCTION

[1]            
This is a determination of issues of liability and damages in connection
with a motor vehicle accident.

[2]            
The plaintiff, Ratomir Stevanovic, and the defendant, Stevan Petrovic,
were good friends.

[3]            
In the evening of May 28, 2005, the plaintiff was standing in the roadway
in the 800 block of West 20^th Avenue in Vancouver, waiting for the
defendant to pick him and another friend up to go out for dinner.  While the
plaintiff was standing in the street, he was struck by the vehicle driven by
the defendant.

[4]            
Liability is in issue.

[5]            
As a result of the accident, the plaintiff suffered a serious right knee
injury that has required surgery on four occasions.  Further, he claims to
suffer from chronic pain, anxiety, headaches and sleep difficulties as a result
of the accident.

ISSUES

[6]            
The main issues in this case can be described as follows:

1.       Liability;

2.       Damages

(a)      Loss of Earning Capacity;

(b)      Cost of Future Care; and

(c)      Failure to Mitigate.

[7]            
The parties have reached agreement on certain heads of damage.  Although
liability is in issue, if it is found, the parties agree on certain heads of
damages, including non-pecuniary damages of $155,000 and net past wage loss of
$125,000 from the date of the accident to September 14, 2009 (the start date of
the trial).

[8]            
The parties agree as well on an in trust claim of $15,000 and special
damages of $26,000, subject to further argument about deductibility.

[9]            
The heads of damage in dispute are loss of earning capacity and the cost
of future care.  The defendant also says that damages should be reduced because
the plaintiff has failed to mitigate his damages by seeking appropriate
psychiatric assistance.

1.  LIABILITY

[10]        
On May 28, 2005, the plaintiff was visiting his friend, Ivan Vojvodic,
who lived at 881 West 20^th Avenue, Vancouver across the street
from Douglas Park.  The plaintiff had parked his vehicle in front of the house
and went inside while Mr. Vojvodic got ready to go out.  The plaintiff telephoned
the defendant to invite him to join them for dinner.  The defendant agreed,
said he was close by, and that he would drive over and pick them up from Mr. Vojvodic’s
house.

[11]        
The house is located on the north side of 20^th Avenue, across
the street from a park that has a playground area.  The plaintiff told the
defendant that he and Mr. Vojvodic would be in front of the house, waiting
for the defendant.

[12]        
The park on the south side of 20^th Avenue, in front of Mr. Vojvodic’s
house, is two blocks wide, stretching from Laurel Street on the west to Heather
Street on the east.  At the middle of the park, Willow Street forms a
T-intersection with 20^th Avenue.  There are traffic circles on 20^th
Avenue at both Heather Street and at Laurel Street.

[13]        
It was a dry day.  There was an issue as to whether it was dusk yet.  It
appears the accident occurred by approximately 9:00 p.m., or shortly
thereafter at the latest.  There were a number of cars parked on the north side
of 20^th Avenue, but no cars parked on the south side adjacent to the
park.  Although people attended shortly after the vehicle stuck the plaintiff,
the only eyewitnesses to the accident who were in the vicinity and who testified
at trial were the plaintiff and the defendant.

[14]        
The plaintiff, while he waited for the defendant to arrive, crossed 20^th
Avenue and walked into the park, and for a few minutes watched a game being
played.  At some point, Mr. Vojvodic came outside and the plaintiff went
back to 20^th Avenue, standing in the roadway, to speak with him.  As
the plaintiff expected, the defendant, after some time, approached in his 1998
BMW 540i.

[15]        
It is in dispute in the evidence whether the defendant approached the
area of Mr. Vojvodic’s house by driving south on Heather Street, and
entering 20^th Avenue by coming around the traffic circle there, or
whether he had driven south on Willow Street, then turned right onto 20^th
Avenue.  The evidence of the plaintiff and the defendant is that the defendant
approached via Heather Street, two blocks to the east of Mr. Vojvodic’s
house, and then travelled along 20^th Avenue.  However, the evidence
of a neighbour, Zdenka Buric, who had just arrived home with her children and
husband, was that the defendant, after coming southbound on Willow Street, had
turned right onto 20^th Avenue and continued heading west.

[16]        
I find on the evidence that shortly before the accident, the plaintiff
was standing in the roadway on 20^th Avenue talking to Mr. Vojvodic. 
It appears that Mr. Vojvodic was likely standing in between parked cars on
the north side of 20^th Avenue as the two men waited for the
defendant.

[17]        
There is some question in the evidence whether the defendant, after
entering the block of 20^th Avenue where the plaintiff was standing, flashed
his lights to indicate that he had seen the plaintiff (or sped up and then slowed
down), but the evidence, I find, is clear that the defendant saw the plaintiff standing
on the roadway waiting for him well before the accident.

[18]        
The evidence of Ms. Buric does not coincide with the evidence of either
the plaintiff or the defendant as to how the defendant approached the plaintiff. 
At the time of the accident, she lived at 769 West 20^th Avenue, around
one block from where the accident occurred.  She testified that the defendant’s
vehicle entered the 800 block of West 20^th Avenue by turning right from
Willow Street.  She testified that the defendant was using excessive speed and
doing S-type movements up 20^th Avenue.

[19]        
The defendant testified that as he approached the plaintiff standing on
the roadway, he saw a parking space ahead of the plaintiff on the north side of
the street.  He testified that he intended to go around the plaintiff by
driving on the south side of the street, and pull into the parking space.

[20]        
The plaintiff testified that after seeing the defendant approaching from
over a block away on 20^th Avenue, he turned back to talk to his
friend.  The exact location where the plaintiff was standing is not clear in
the evidence (I find it was likely near the centre of the road), however he was
in the roadway for the defendant to see, and it is clear the defendant did see
him as he approached.

[21]        
However, the defendant struck the plaintiff with the right front of his
motor vehicle.  The plaintiff was thrown up on the hood of the car and was
seriously injured.  After striking the plaintiff, the defendant’s vehicle came
to a stop angled towards the park (south) almost at the curb, and the plaintiff
was lying on the ground.

[22]        
How did this accident occur?

[23]        
According to the plaintiff, he was standing on the street talking to his
friend.  He saw the defendant’s car, which he said was driving slowly, and
then, he said, the defendant accelerated to more than 60 kph.  He testified
that he waved to the defendant, and saw the defendant’s high beams flash and the
car hood go down, indicating the defendant had lifted his foot off the gas
pedal.  The plaintiff said he looked at the car for a few seconds and then
turned and continued talking to Mr. Vojvodic.  The plaintiff said he heard
no squealing of tires a block away, nor did he see the defendant’s vehicle
making swerving motions as Ms. Buric’s evidence suggests.  The plaintiff
said the first indication that he was in trouble was when he heard the tires
and the defendant’s vehicle skidding.  The plaintiff, who had still been talking
to Mr. Vojvodic, testified that he turned his head and the car was then only
a few metres away.  He said he tried to jump, but he could not lift his right
leg and was hit.

[24]        
The plaintiff testified that when he last saw the defendant’s car, it
was occupying the middle of the drivable surface of the road.  However, he had
no concern the defendant would hit him, because he was sure the defendant had
seen him.  The plaintiff said he did not receive any warning of the impending
collision, nor did the defendant honk his horn.  The plaintiff said that at the
time of impact, he put his hands on the hood of the car, but his head went
forward, he was struck in the knee, and his face hit the hood of the car. 
Although he testified at trial that he took no steps to move away from the
defendant’s car, he had given a statement to an insurance adjuster on July 11,
2005, in which he said he remembered trying to get out of the way of the car, and
that he moved in a southerly direction further across the street.  The
plaintiff testified he was standing to the centre, towards the south curb, and
that he was talking to Mr. Vojvodic, who was in between the cars or just
beside the cars on the north side of the street (opposite the park).  The
plaintiff agreed that, as the defendant approached, there was nothing to
prevent him from moving to the south side of the road to safety.

[25]        
The defendant’s version generally was as follows.  He said that he had
been to Mr. Vojvodic’s house before, and he approached it along West 20^th
Avenue as he had on those previous occasions.  As he negotiated the roundabout at
Heather Street, two blocks to the east of the accident site, he said the only
person he saw, and then recognized, was the plaintiff.  The defendant testified
that he believed it was dusk as he approached Mr. Vojvodic’s house.  He
testified that the posted speed limit on West 20^th Avenue was 50 kph,
and that he could have been driving up to that speed, but not more than that
speed.  He testified that near the intersection of Heather Street and the
accident, he started to decelerate.  He testified that he saw the plaintiff
about halfway down the block, when he was driving along 20^th halfway
between Willow and Heather or, in other words, when he was more than a block
from the accident site.

[26]        
The defendant testified that he was driving on 20^th Avenue at
a constant speed.  He did not recall flashing his lights or the plaintiff
waving to him.  As he got closer to the plaintiff, his intention, he said, was
to turn towards his left and drive around the plaintiff by driving between the
plaintiff and the park to the south, and then parking on the north side of West
20^th.  When asked if he wanted to drive around the plaintiff, and whether
he felt he could do it safely as he approached the plaintiff, he said “I
steered to the left, to my left, towards the south.  Almost immediately Ratomir
moved in the southbound direction and I applied the brake as quickly as
possible”.

[27]        
He said that the car stopped approximately a car length after he hit the
plaintiff.  His evidence was that it was approximately one car length from the
time he started braking until he ran into the plaintiff.  He said that after
the accident his vehicle was close to the south curb, about a foot away from it. 
He was asked:

Q.        In your mind what would have occurred if the
plaintiff had not moved?

A.         I was hoping to go around him.

Q.        Do you feel you could have gone around him?

A.         Yes.

[28]        
The defendant testified that he only applied his brakes once the
plaintiff moved to the south.  He said that his speed just before he applied
the brakes was 30 kph.  He said that the plaintiff at most moved a couple
of feet, enough so he could not go around him.  The defendant said that the accident
occurred very quickly.

Parties’ Positions on Liability

Plaintiff’s Position

[29]        
The plaintiff’s position is as follows.

[30]        
The plaintiff says that the accident and damages suffered by the
plaintiff were caused entirely by the negligence of the defendant and there was
no contributory negligence on the part of the plaintiff.

[31]        
The plaintiff says that the defendant must drive in accordance with his
obligation under the Motor Vehicle Act, R.S.B.C. 1996, c. 318.  In
these circumstances, that means he must not drive without due care and attention
or without reasonable consideration for others using the highway (s. 144(1)),
he must obey the designated speed (s. 146(3)), and, in passing a
playground between dawn and dusk, he must not exceed 30 kph (s. 147(2)). 
While acknowledging the obligations of a pedestrian (s. 179 and s. 180),
Mr. Gibson for the plaintiff argues that there is nevertheless a duty on a
driver to use due care to avoid a collision with a pedestrian on a highway.

[32]        
The plaintiff argues that although the Motor Vehicle Act contains
a set of rules for the safe use of the road by pedestrians, motorists and
cyclists, there is an overriding duty of care for all users.

[33]        
The plaintiff says that the defendant, who saw the plaintiff in the
roadway waiting to be picked up, is liable because the accident could have been
avoided had the defendant driven his vehicle with the “slightest degree of care
in the circumstances”.  The plaintiff says that, considering all the evidence,
the defendant should be found to have been “showing off”, and, while not
intending to hit the plaintiff, wanted to drive as close to the plaintiff as
possible without hitting him.  The plaintiff’s counsel argues that the
defendant made a dreadful miscalculation, and either misjudged his manoeuvre or
startled the plaintiff, who panicked and walked into, rather than away from,
the defendant’s vehicle.

The Defendant’s Position

[34]        
The defendant says that the plaintiff, in complete disregard for his own
safety, was standing on the street and, instead of watching the defendant’s vehicle,
chose to turn away and speak with his friend.  The defendant says that had the
plaintiff not moved, he would have avoided the accident.

[35]        
According to the defendant, the plaintiff was standing in the road for
about a minute before the defendant approached.  There were no markings or
crosswalk on the road where the plaintiff was standing.  The plaintiff saw the
defendant’s vehicle speed up, however he did not pay proper attention to the
defendant, instead the plaintiff turned away to talk to his friend.  There was
nothing preventing the plaintiff from moving out of the way either before or
after he saw the defendant driving towards him from a block away.  Nothing
prevented the plaintiff moving to a place of safety as the defendant’s vehicle approached
him.

[36]        
The defendant testified that he intended to drive around the plaintiff,
and that as he steered to his left (south), the plaintiff also moved in a
southbound direction.  The defendant said that he applied the brakes as quickly
as possible, but that he hit the plaintiff, and his car ended up a foot from
the curb.  The defendant said that he was travelling at 30 kph before he
applied his brakes, and that the plaintiff had moved far enough to the south that
the defendant could no longer drive around him.

[37]        
Counsel for the defendant, Mr. Deering, argues that I should find that
the plaintiff moved into the path of the defendant’s vehicle.  He says that I
ought to reject the plaintiff’s version at trial that he did not move, as the
plaintiff previously gave a statement to ICBC that he moved two steps. 
Moreover, the plaintiff’s counsel read into evidence from the discovery of the
defendant that the plaintiff tried to move in a southward direction, or a
direction to the defendant’s left and towards the park.

[38]        
Counsel for the defendant says that there is a duty on the part of both pedestrians
and drivers to exercise due care for their own safety and the safety of
others.  The defendant relies on Moses v. Kim, 2009 BCCA 82, where the
Court of Appeal upheld an apportionment of liability of 65% against a
pedestrian who was struck by the defendant’s vehicle.

[39]        
The defendant’s counsel argues that the defendant was the dominant
driver, and that he had the right to expect that his right of way would be
respected.  He argues that the defendant was entitled to continue in that
expectation that he had the right of way until it ought to have been evident
that the plaintiff was going to disregard the law and only then was the
dominant driver under a duty to avoid the collision.  The defendant submits that
he did not drive without due care and attention, or without consideration for
those using the highway, or at a speed excessive to the road and weather
conditions.  The defendant argues that the issues of whether the speed limit
was 30 kph or 50 kph, and whether it was dusk or not, are not relevant as, on
the evidence, the defendant was travelling at 30 kph as he approached the
plaintiff.

[40]        
The defendant, relying on ss. 179(2), 180, and 181 of the Motor
Vehicle Act, says that the accident was the result of the plaintiff’s own
folly because he failed to observe the approaching vehicle on a continuous or
intermittent basis, he failed to take steps to move into a place of safety, he
failed to yield the right of way, and he stepped directly into the path of the defendant’s
vehicle.

[41]        
In summary, the defendant says that, in an area where there was neither a
marked roadway nor a crosswalk, the plaintiff left a place of safety that was on
either side of the road, contrary to the Motor Vehicle Act, knew the
defendant’s vehicle was approaching for at least 20 seconds and for over 600
feet, and, notwithstanding that the vehicle would hit him if he did not move,
chose not to look at the vehicle again until it was a car length away.  The
defendant argues that if the plaintiff had looked earlier, he could easily have
moved out of the way to the north or to the south.

[42]        
The defendant contends that he did all that he could to avoid the collision,
and that the plaintiff should be found entirely at fault.  He argues in the
alternative that if liability is apportioned, the plaintiff should be found 75%
at fault.

Discussion of Liability

[43]        
This case addresses the duties of a driver and a pedestrian in an unusual
case.

[44]        
This accident occurred when the plaintiff, a pedestrian, was standing on
a roadway waiting to be picked up by the driver who eventually struck him and
injured him.

[45]        
Counsel referred to the following sections of the Motor Vehicle Act:

179(1) Subject to section 180, the driver of a vehicle must
yield the right of way to a pedestrian where traffic control signals are not in
place or not in operation when the pedestrian is crossing the highway in a
crosswalk and the pedestrian is on the half of the highway on which the vehicle
is travelling, or is approaching so closely from the other half of the highway
that he or she is in danger.

 (2) A pedestrian must not leave a curb or other place of
safety and walk or run into the path of a vehicle that is so close it is
impracticable for the driver to yield the right of way.

…

180 When a pedestrian is crossing a highway at a point not in
a crosswalk, the pedestrian must yield the right of way to a vehicle.

181 Despite sections 178, 179 and 180, a driver of a vehicle
must

(a) exercise due care to avoid
colliding with a pedestrian who is on the highway,

(b) give warning by sounding the
horn of the vehicle when necessary, and

(c) observe proper precaution on
observing a child or apparently confused or incapacitated person on the
highway.

182(1) If there is a sidewalk that is reasonably passable on
either or both sides of a highway, a pedestrian must not walk on a roadway.

 (2) If there is no sidewalk, a pedestrian walking
along or on a highway must walk only on the extreme left side of the roadway or
the shoulder of the highway, facing traffic approaching from the opposite
direction.

 (3) A person must not be on a roadway to solicit a
ride, employment or business from an occupant of a vehicle.

…

[46]        
Under the Motor Vehicle Act, it appears clear that the defendant
had an obligation to drive with due care and attention and reasonable
consideration for others using the highway.  Section 179(1) does not apply
as the plaintiff was not in a crosswalk.  However, Mr. Deering, counsel
for the defendant, argues that the plaintiff violated s. 179(2) by walking
into the path of the vehicle, which was too close for the driver to practicably
yield the right of way.  Under s. 180, there is an obligation on a
pedestrian, when not crossing in a crosswalk, to yield the right of way to a
vehicle.  Nevertheless, a driver must exercise due care to avoid colliding with
the pedestrian.

[47]         
In Cook v. Teh (1990), 45 B.C.L.R.
(2d) 194 at 203, the Court of Appeal considered the provision of the Motor
Vehicle Act in a case where a pedestrian was struck at a crosswalk:

Firstly, s. 181(1) and (2) [now
essentially ss. 179(1) and (2)] do not constitute an exclusive code
relating to rights-of-way between pedestrians and vehicles.  They are not a
substitute for the common law duty of care owed by pedestrian and drivers to
exercise due care for their own safety and the safety of others.

[48]        
In Cook v. Teh, Anderson J.A. referred, at 203-4, to the decision
of Estey J. in British Columbia Electric Railway Co. v. Farrer, [1955]
S.C.R. 757, concerning the provisions of the Motor Vehicle Act.  Estey
J. said, at 762 of those reasons:  “The general rule is that these provisions
and regulations are supplementary, or in addition, to the common law duty that
rests upon all persons using the highways to exercise due care”.

[49]        
This accident occurred between a vehicle and a pedestrian on a
“highway”, as that term is used in the Motor Vehicle Act.

[50]        
The defendant was picking up the plaintiff from outside a home he was
visiting.  As the defendant approached, he saw the plaintiff on the street,
from a considerable distance away.  Both parties had an obligation to exercise
due care.

[51]        
The accident occurred when the defendant, on a straight stretch of road
in front of a park, struck the plaintiff, who was standing there waiting to be
picked up by the defendant.  There was an issue at trial whether it was dusk at
the time of the accident and whether, if so, the speed limit, which was
otherwise 30 kph, was then 50 kph.  Although the weight of the evidence suggests
that it was not dusk, I do not find that factor to be material.  In this case, I
accept the evidence that, at the time the defendant started to brake, he was
going 30 kph, an appropriate speed, before dusk.  Even if it was dusk, the
plaintiff was clearly visible to the defendant.

[52]        
On the evidence, I find that until just before the accident, the
plaintiff, who had initially seen the defendant, remained in about the same
spot near the centre of the road, facing his friend Mr. Vojvodic, looking
towards him talking, as the defendant’s vehicle approached.  The defendant saw
the plaintiff.  There was no indication to the defendant in the time leading up
to the collision that the plaintiff was about to move off the road either to
the north or to the south.  Accordingly, the plaintiff was a stationary object
in the middle of the road as the defendant arrived.  Driving up and stopping
before a stationary object (the plaintiff) is a very simple and straightforward
driving manoeuvre that is executed by all drivers daily, particularly when this
object (the plaintiff) is seen by the driver for a lengthy period of time, and many
feet ahead, in front of hIm on the road.

[53]        
It appears that the plaintiff was simply standing near the middle of the
road.  I think he expected to get into the passenger seat behind the defendant
driver.  The plaintiff had, however, taken his eye off the defendant’s car.  I
find that he, reasonably, did not expect that the defendant would approach him
at any significant speed, at least within the last short distance to reach the
plaintiff.  However, regardless of the defendant’s speed as he approached the
plaintiff, by the time he was almost upon the plaintiff and applied his brakes,
the defendant, by his own admission, was still travelling at 30 kph.

[54]        
I find, on a consideration of all of the evidence, that the defendant intended
to drive close to the plaintiff  and to pass by him to the south, however the
defendant made the manoeuvre either so close to the plaintiff or at such a
speed that the plaintiff moved to avoid the collision.  Rather than avoiding
the accident, the plaintiff likely moved into the path of the defendant’s vehicle.

[55]        
There is no doubt that the defendant was negligent and caused the
accident.  I find on the evidence that had the plaintiff not moved immediately
before the accident, the defendant still would have had to steer his vehicle sharply
to the left to avoid the collision.  In other words, the defendant could not
have avoided the collision by simply applying his brakes immediately before the
plaintiff moved.  The defendant was planning to swing to his left at the last second
and drive around the plaintiff.  The accident was the result a very risky and
dangerous approach by the defendant.

[56]        
I find that the defendant was “horsing around” or “showing off” for his
friends by this manoeuvre.  While the evidence of Ms. Buric did not accord
with the evidence of both the plaintiff and the defendant, in that she
testified to seeing the defendant speeding and doing sweeping manoeuvres before
the accident, her evidence is consistent with my finding that the defendant was
“clowning around”.  The plaintiff testified that the defendant had been speeding,
but that he then appeared to slow down and flash his headlights as he
approached.

[57]        
The defendant did not intentionally strike the plaintiff, however he took
an enormous risk by driving up to him at speed, knowing that he had to swerve
and count on the plaintiff not moving to avoid a collision.  Any reasonable
driver would have approached a person in front of them on the street with only
enough speed to be able to safely stop well short of that person.

[58]        
The collision occurred because of a very dangerous and reckless
situation that the defendant created.  Although Mr. Deering said that the
defendant did in fact drive with due care and attention, I disagree.  I find it
extremely careless of the defendant to have driven such that he was braking at
30 kph in the vicinity of the plaintiff, and would have only missed him
only if the plaintiff remained stationary.

[59]        
While the plaintiff says he did not move before the accident, I find he
did, and that he moved to the south at the last second to try to avoid the
accident.  Although Mr. Deering suggests that the plaintiff stepped out
into the defendant’s path of travel, in fact, the plaintiff moved to the side of
the street on which one would not expect the defendant to be driving.  The
defendant says that there was insufficient room for him to go between the
plaintiff and the parked cars, and that may be so, but that does not justify
the driving manoeuvre undertaken by the defendant.

[60]        
The more difficult question is whether there is any contributory
negligence on the part of the plaintiff.  No cases involving facts quite like
these were cited to me.

[61]        
Mr. Deering relies on Moses v. Kim.  In that case, a
collision between the defendant’s vehicle and the plaintiff occurred when the
plaintiff was attempting to cross the Trans-Canada Highway.  The Court of
Appeal upheld a 35%/65% apportionment of damages in favour of the driver and
found liability.  Madam Justice D. Smith held that neither the Motor Vehicle
Act nor the common law test for the duty of care on the dominant and
servient users of the highway, as expressed in Walker v. Brownlee,
[1952] 2 DLR 450 (S.C.C.), creates an absolute code, but instead reflect
concurrent duties of care on both the dominant and servient users of a highway. 
The apportionment of liability arose when the trial judge found that the driver
failed to keep a proper outlook, and had a duty to reduce his speed when it
became reasonably apparent that the plaintiff was crossing the highway and not yielding
the right of way to the approaching driver.  The defendant in this case says
that similar considerations apply here if the defendant is found to be negligent.

[62]        
The plaintiff says that I should have regard for Guilani v. Saville,
1999 BCCA 768, for guidance on the issue of apportionment of fault.  In that
very different case, the plaintiff, after a confrontation with the defendant,
stood on a roadway he anticipated the defendant would return along, in order to
obtain the license plate number of the defendant’s vehicle.  However, the
defendant sped up and collided with the plaintiff who was standing on the road,
and argued that the plaintiff had ample room to stand clear of the defendant’s
vehicle.   The Court of Appeal found no contributory negligence on the part of
the plaintiff.

[63]        
I did not find either of these two authorities to be instructive on the
facts.

[64]        
Was the plaintiff contributorily negligent in standing in the street and
not keeping a proper lookout as the defendant approached?  Ordinarily, standing
in a roadway would be negligent.  The plaintiff saw the defendant’s vehicle
approaching from about 600 feet away, or twenty seconds or so before the
defendant’s vehicle hit the plaintiff, and thus the plaintiff could easily have
moved out of the way.

[65]        
Given that the plaintiff saw the defendant, and the defendant saw the
plaintiff, who remained in the middle of the roadway, not moving, and given that
the purpose of the defendant driving to the home on West 20^th Avenue
was to pick up the plaintiff, I think it was reasonable for the plaintiff to
assume that the defendant would easily stop short of him.

[66]        
The defendant says it is crucial that the plaintiff turned away to talk
to his friend, and did not pay proper attention to the vehicle that was
approaching.  However, this was not a vehicle that would pass him, nor did the plaintiff
reasonably expect this vehicle would pass him, but rather one that the
plaintiff expected to stop for him.  It was not a situation where the plaintiff
was unsure whether the defendant had seen him, nor one where the plaintiff was entering
the roadway to cross in front of the defendant.  The evidence is clear that the
plaintiff was seen by the defendant, and the plaintiff did not move from where
the defendant has seen him.

[67]        
On the evidence in this case, the only traffic that summer evening was
the defendant’s vehicle, which was arriving to pick up the plaintiff.  I expect
that it is not an unusual occurrence for people to enter or stand on a quiet,
residential street when they are waiting to be picked up by friends or family. 
A person standing on the street has an obligation to exercise care, but is he partially
at fault if he does not stand back off the road, in the absence of any indication
that the person driving towards them is going to “horse around” or “play
chicken”?  I do not think so.

[68]        
I think that the plaintiff reasonably expected the defendant to drive up
to him and stop.  I do not think that it was careless for the plaintiff to turn
to talk to his friend and take his eye off the defendant, because it was not
reasonable for the plaintiff to anticipate the possibility that the defendant
would drive up to him at 30 kph, and then turn sharply to avoid him.  Moreover,
I think that it is a reasonable inference from the evidence that the plaintiff
was startled by the defendant driving close to him and attempting to go around
him.  The defendant says that had the plaintiff stayed in the same place, the accident
would not have occurred.  Although that may be true, I think the defendant
ought to have known that this was an extremely risky manoeuvre, and that a
startled pedestrian suddenly moving, in those circumstances, could hardly be a surprise
to the driver.  The fact that the plaintiff moved before the collision could
not be contributory negligence on his part.

[69]        
The defendant says that the plaintiff had a complete disregard
for his own safety by standing in the street, and continuing to do so once he had
seen the defendant, and instead of watching the defendant, chose to turn away
and speak to his friend.  I do not think that the vehicle driven by the
defendant potentially posed any realistic danger to the plaintiff.  I find that
the plaintiff did not expect that the defendant would do anything other than
drive up to him and stop.  No doubt the defendant, at the last moment, was
trying to do everything in his ability to avoid the impact, however that was
only because a hazard was created by the defendant’s reckless approach.

[70]        
I find that the defendant was negligent and entirely at fault for the
accident.  There is no contributory negligence on the part of the plaintiff. 
If I am wrong In that conclusion, I would only apportion 10% fault to the plaintiff.

2.  DAMAGES

Introduction

[71]        
The parties have agreed on non-pecuniary damages.  The central issues
that remain are the plaintiff’s loss of earning capacity and the cost of future
care.

[72]        
The parties have vastly different views of the appropriate damages for
these heads.  The plaintiff’s counsel says that his client should be awarded
$1.3 million for loss of earning capacity and $1.3 million for cost of future
care.  The defendant says that the award for loss of earning capacity should be
somewhere in range of $250,000 – $450,000, and the proper assessment of the
cost of future care is about $250,000.

[73]        
The defendant also argues that the plaintiff has failed to mitigate his
damages by ignoring advice that he would benefit from psychiatric treatment and
medication for his anxiety.  The defendant says the medical evidence shows that
treating the plaintiff for anxiety will precipitate a partial or full recovery
of the symptoms of chronic pain and sleep disorder, which the defendant says
the plaintiff alleges are significant contributors to his alleged disability. 
For this failure to mitigate the defendant seeks a 25% reduction.  The
plaintiff denies that he has failed to mitigate his damages or that the defendant
has discharged his onus to show that another course of treatment was
recommended to the plaintiff which he unreasonably failed to follow and, if
followed, would have improved his condition.

(a)  LOSS OF EARNING CAPACITY

[74]        
There is no dispute that the plaintiff suffered a serious knee injury
and an impairment of his earning capacity.  However, the plaintiff says that
the knee injury, together with his chronic pain, anxiety, headaches and sleep
difficulties, are so significant that they make him competitively
unemployable.  The defendant, on the other hand, says the plaintiff is
employable, capable of at least part-time work, and that, with the passage of
time and treatment, issues such as anxiety, sleep difficulty, and chronic pain
will resolve and improve.  Although the law concerning recovery for loss or
impairment of earning capacity is not really at issue, and I will describe it
shortly, its proper application here, the parties argue, leads to significantly
different results.

The applicable law

[75]        
It would be useful to set out some of the guiding principles on the
assessment of damages for loss of earning capacity.

[76]        
In Moore v. Brown, 2010 BCCA 419, the Court of Appeal said, at para. 39:

The approach to be taken in assessing an award for impaired
earning capacity was summarized by Huddart J. in Rosvold v. Dunlop, 2001
BCCA 1, 84 B.C.L.R. (3d) 158:

[8]        The most basic of those principles is that a
plaintiff is entitled to be put into the position he would have been in but for
the accident so far as money can do that.  An award for loss of earning
capacity is based on the recognition that a plaintiff’s capacity to earn income
is an asset which has been taken away: Andrews v. Grand & Toy Alberta
Ltd., [1978] 2 S.C.R. 229 (S.C.C.); Parypa v. Wickware (1999), 65
B.C.L.R. (3d) 155 (B.C.C.A.).  Where a plaintiff’s permanent injury limits him
in his capacity to perform certain activities and consequently impairs his
income earning capacity, he is entitled to compensation. What is being
compensated is not lost projected future earnings but the loss or impairment of
earning capacity as a capital asset. In some cases, projections from past
earnings may be a useful factor to consider in valuing the loss but past
earnings are not the only factor to consider.

…

[11]      The task of the court is to assess damages, not to
calculate them according to some mathematical formula:  Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (B.C.C.A.). 
Once impairment of a plaintiff’s earning capacity as a capital asset has been
established, that impairment must be valued.  The valuation may involve a
comparison of the likely future of the plaintiff if the accident had not
happened with the plaintiff’s likely future after the accident has happened. 
As a starting point, a trial judge may determine the present value of the
difference between the amounts earned under those two scenarios.  But if this
is done, it is not to be the end of the inquiry: Ryder (Guardian ad
litem of) v. Jubbal, [1995] B.C.J. No. 664 (C.A.) (Q.L.)]; Parypa
v. Wickware, supra. The overall fairness and reasonableness of the award
must be considered taking into account all the evidence.

…

[18]      The assessment of damages is a matter of
judgment, not calculation. …

[77]        
In Reilly v. Lynn, 2003 BCCA 49, Low and Smith JJ.A., writing for
the majority, summarized the relevant principles in assessing damages for loss
of future earning capacity:

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

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

[78]        
Mr. Justice Finch, as he then was, described a list of further
specific considerations in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353
at para. 8 (S.C.), which may be taken into account in making an assessment
according to the capital asset approach:

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.

[79]        
In the case at bar, I find, and it is not disputed, that the plaintiff
has suffered an impairment of his income earning capacity.  The difficult
question is what is, based on all of the evidence, the proper assessment of the
damages to be awarded to the plaintiff for that loss. 

Pre-accident condition and circumstances

[80]        
The plaintiff, now 30 years old, was born in the former Yugoslavia, his
parents being mechanical engineers, and the family moved to Canada in 1994.  He
required English assistance when he entered high school and completed his high
school in 1997 with average marks.

[81]        
After attending Douglas College, but not graduating, he worked at miscellaneous
jobs such as employment at a gas station, construction, valet company work, and
delivering flyers.  In 2002, he started work with RISO, Inc., an international
company based in Japan that produces and sells digital photocopiers and high
end printers.  The plaintiff had been employed at RISO for about 2½ years at
the time of the accident.  At RISO, the plaintiff serviced photocopiers and
digital presses, as well as assisting sales people doing demonstrations.  His
job title at RISO was a photocopier technician.  The job involved walking,
several hours of driving each shift, repetitive lifting, and, with some less
frequency, heavy lifting and working in sustained awkward positions.

[82]        
The plaintiff testified that, at the time of the accident, he was not
entirely happy at RISO, as he felt that he should have received a pay increase,
and he was considering leaving if he did not progress.  Although he
testified to considering leaving RISO for better opportunities, he had not
actually taken any active steps to leave, such as sending out resumes to any
future employers.

[83]        
The plaintiff’s gross income rose to $36,419 in 2004, including a car
allowance.  In 2003, inclusive of a car allowance, his gross income was $34,822.

[84]        
The plaintiff is single.  Prior to the accident, he had moved back in with
his mother to help her pay her mortgage.

[85]        
On the evidence, the plaintiff appears to be a reasonably intelligent
man with an interest and strong aptitude in computers, as well as an interest
in music.  Before the accident, he took a “Brainbench” test for which he
obtained the top marks among RISO technicians.  He studies and plays the
flamenco guitar at a relatively high level.  Prior to the accident, he was active
and enjoyed soccer and skiing, as well as table tennis, ice hockey, and working
out in the gym.

[86]        
The plaintiff had some knee ligament problems from sports injuries prior
to 2004, but I find that there were no significant issues in the year leading
up to the accident that would have affected his income earning capacity.

[87]        
The plaintiff is an intense person.  In terms of pre-accident medical conditions,
he had developed irritable bowel syndrome (IBS) after his father passed away
from a heart attack in 1999.  Although there was some suggestion in the
evidence that it might have predated 1999, I find that his IBS problem began in
1999.  His symptoms from IBS flare up from time to time.  When his symptoms
flared up, he worked overtime or longer hours to get his work done.  The flare-ups
of his IBS condition appear to have occurred relatively infrequently.

Overview of his claimed injuries

[88]        
The purpose of the review of the injuries that the plaintiff suffered is
not to revisit the issue of non-pecuniary damages, which was agreed, but for
the purpose of the assessment of his loss of earning capacity and cost of
future care.

[89]        
The injuries suffered by the plaintiff were summarized by Dr. Anton,
a physiatrist, in his medical report of August 21, 2008:

1.         multiple injuries to the right knee including

(a)        a patellar dislocation
with a residual osteocondral defect in the articular (joint) surface of the
patella;

(b)        an impacted fracture of
the lateral femoral condyle;

(c)        evulsion of the anterior
cruciatr ligament from the tibial spine;

(d)        a lateral tibual-plateau
fracture, and

(e)        a bucket handle tear in
the anterior portion of the lateral meniscus;

2.         a closed head injury including a laceration, nasal
fracture, and probable mild traumatic brain injury;

3.         a fracture of the proximal fibula of the right
leg;

4.         an injury to the left shoulder involving the
supraspinatis tendon of the rotator cuff and anterosuperior glenoid labrum; and

5.         multiple soft tissue
injuries including a probable soft tissue injury to the cervical spine.

[90]        
The nature, extent, and cause of the plaintiff’s continuing injuries and
complaints are critical to the determination of his claim for loss of earning
capacity.

[91]        
The plaintiff’s most serious physical injury was the damage to his right
knee, which required surgery on four occasions by Dr. Pierre Guy, an orthopaedic
surgeon.  The plaintiff also required shoulder surgery in 2008 by Dr. Gilbert,
which surgery was successfully completed.  In more recent times, the plaintiff has
developed and has complained of hip pain.

[92]        
The knee injury was described by the doctors as serious and complex, and
is significant for the loss of earning capacity claim, because it affects and
continues to affect his ability to bend his knee, go up or down stairs, or
crouch, squat, kneel, or run without pain.  As a result of his knee injury,
notwithstanding the successful surgeries, it is now apparent, with his knee pain,
and difficulty crouching and bending, that he would not be able to continue
employment as a copier repair person, which was what he had done at RISO before
the accident.

[93]        
I find that the plaintiff continues to suffer from pain to his knee and
that further surgical options are limited until much later.  A total knee
replacement at a much later age appears to be the only possible surgical solution
to deal with ongoing pain and discomfort.

[94]        
The complicating factor that makes the assessment of the loss of earning
capacity more difficult is the fact that the plaintiff has had persistent
symptoms beyond the knee pain, which his counsel argues are caused by the
accident.  These include headaches, chronic pain, anxiety, and sleeping
difficulties, coupled with his knee, shoulder and hip problems.

[95]        
The defendant concedes that, at present, the plaintiff can only work
part-time (the plaintiff’s counsel says that he is competitively unemployable). 
However, the defendant suggests that with time and treatment, the plaintiff
will improve his pain, relieve his anxiety, and alleviate his sleeping and
headache difficulties.  The defendant’s counsel goes on to say that, given that
the knee repair was well done and the knee joint is otherwise good, the loss of
earning capacity claim is much less than the plaintiff contends.  The defendant
argues that the plaintiff’s pre-existing condition or earning capacity was already
reduced by the IBS condition that he suffers from.

[96]        
I find that the plaintiff is, and was before the accident, an intense
person.  He was accurately described by several witnesses as being a
perfectionist.  I find that he did not have any serious underlying
psychological problems before the accident that would have affected his earning
capacity, but he did, as I have mentioned, suffer from IBS that occasionally flared
up and caused him to miss work, although he would, apparently, catch up on his
work after the flare up ended.

[97]        
The plaintiff, as I mentioned, has a musical interest and a computer
interest and a skill in both areas.  In 2008 he took an introductory course in
audio and studio and recording design and after completing that then enrolled
in a full-time course in audio design and music production at Harbourside Institute
of Technology, which was to be completed at a time after the evidence had been heard
at trial.

[98]        
The assessment of this head of damages concerns an analysis of various
injuries and problems the plaintiff suffers from, their cause, and their impact
on him in the future.  I will start with a discussion of his knee injury and
then turn to his other difficulties.  I will describe the chronology of those
other difficulties from the perspective of the family doctor, who oversaw the treatment
of the plaintiff’s ongoing pain, headaches, and sleeping difficulties.  Each of
those conditions, the plaintiff asserts, impact on his ability to work and
hence his earning capacity.

The knee injuries and surgeries

[99]        
The plaintiff’s most serious injury was to his knee.

[100]     The nature
of the injury, the surgeries, and the prognosis for the plaintiff was described
in the evidence of two orthopaedic surgeons, Dr. Guy, called by the
plaintiff, and Dr. Pat McConkey, called by the defendant.  The knee injury
was also described by Dr. Anton.

[101]     The knee
joint was described as being made up of three joints: the patellofemoral joint,
the lateral knee joint or outer aspect, and the medial knee joint or inner
aspect, and although there was some question about this, I find that there was
no evidence of present osteoarthritic degeneration on any of the actual
weight-bearing surfaces.

[102]     Following
the accident, Dr. Guy performed surgery on May 28, 2005.  On June 22,
2006, Dr. Guy performed a right knee arthroscopy, where he debrided the
patella and removed hardware from the right distal femur and right proximal
femur, and found patellofemoral osteoarthritis with grade 3-4 changes on the
under surface of the patella.  The plaintiff had further arthroscopic surgery
to the right knee by Dr. Guy on February 5, 2008.  I describe those surgeries
below in an excerpt from a report of Dr. McConkey.  The plaintiff had
surgery on four occasions, the last time being February 14, 2008.

[103]    
Dr. McConkey, having reviewed Dr. Guy’s evidence and a summary
of his opinion, provided this overview:

In review Mr. Stevanovic was struck by a motor vehicle
on May 28, 2005 he suffered significant and complex injury to his right knee as
a result.  The injuries included osteochondral injury arising from the medial
articular set of the patella, fracture of the lateral femoral condyle —
impacted, avulsion of the anterior cruciate ligament with a small fragment of
bone, fracture of the periphery of the lateral tibial plateau, bucket handle
type tear of the anterior horn of the lateral meniscus.

Surgery was done soon after injury.  Surgery in the care of Dr. Pierre
Guy included repair of distal avulsion of the anterior cruciate ligament with a
non absorbable suture, re-fixation of osteochondral fragment with
bio-absorbable screws, elevation and fixation of impacted lateral femoral
condylar fracture maintained with fully threaded cortical screw and washer, and
fixation of lateral peripheral tibial plateau fracture by a threaded cortical
screw and washer, repair of the anterior horn of the lateral meniscus with non
absorbable sutures.  At closure lateral release of the patella and medial
structure advancement was done.

Because of persisting symptoms further surgery was done on
June 22, 2006 for "debridement" for grade 3-4 changes at the patellar
articular surface.  The previously applied screws and washers to the right
distal femur and right lateral proximal tibia were removed.  At the time of
surgery the ACL was described as "stable".  The operation proceeded
without complication.

There were further patellofemoral
symptoms and therefore on February 5, 2008 arthroscopy of the knee was done. 
At the time there were "grade 3-4 changes" of the medial facet of the
patella and "grade 3 changes" in the femoral groove adjacent to the
patellofemoral joint.  Arthroscopic lateral retinacular release was done. In
the early postoperative period there was increasing pain on swelling and
despite aspiration for negative cultures he was returned to the operating room
on the 14th of February for removal of a clot.

[104]     Dr. McConkey
agreed that not only had the plaintiff suffered a very serious complex knee
injury, but the arthroscopic surgery done by Dr. Guy identified a grade
3-4 change to the underside of the patella, which was a sign of
osteoarthritis.  The last surgery of February 14, 2008, was essentially because
of swelling developing in the right knee.

[105]     Although it
is clear that, from an orthopaedic surgeon’s perspective, the plaintiff’s knee injuries
were complex and serious, Mr. Deering argues that the damage to the knee
was not as bad an injury as it might have been, and that the surgeries were
ultimately successful.  That is probably so.  Dr. Guy agreed that there
were no arthritic changes to the weight-bearing surfaces, no degenerative
changes to the meniscus, and the cruciate ligaments are relatively intact.  Dr. Anton
agreed that there was a good result in the tibial plateau fracture.  Dr. Anton
agreed that with an intact meniscus, what appears to be a stable cruciate
ligament, and a very good result from the tibial plateau fracture, those are
good signs in terms of the risk of degenerative change in the actual
weight-bearing joint.  Dr. Anton agreed that by 2008, the plaintiff had
regained full flexion and normal range of motion.

[106]     Nevertheless,
there were serious injuries to his knee that will have significant impact on
his employability and earning capacity.

[107]     The
plaintiff suffered a significant injury to the patellofemoral joint, and the
symptoms that the plaintiff described were consistent with the development of
arthritis there.  Shaving underneath the patella (which was done) can assist
with pain relief, but will not cure the arthritis.  The plaintiff appears to
have persisting pain in this area.  Dr. McConkey agreed that, based on the
calcification of the bone, although it is important for the plaintiff to avoid
strenuous activity to prolong the health of the joint, it creates a risk of
osteoporosis or a continuation of that condition by not doing so.  Dr. McConkey
only indicated that there was osteoarthritis in the patellofemoral joint, but
did acknowledge that arthritis is a chronic, progressive condition that can
progress from one component of the knee to another.

[108]     Dr. Anton
described that the plaintiff had already developed post-traumatic arthritis in
his right patellofemoral joint, and said that he would probably also develop
arthritis in the knee joint proper.

[109]     In terms
of his right knee, which has been surgically repaired four times, the plaintiff
testified that he has continuing pain in the knee.  The plaintiff described “shifting”,
and said that the brace that he has now helps with the sideways shift, which he
described as the top of his leg going over the top of the tibia.

[110]     The
problems the plaintiff currently has with his knee are difficulty squatting and
difficulty keeping the knee in the same place, the fact that the knee joint collapses
to the inside, and there is some residual laxity of his medial collateral
ligament.

[111]     In terms
of activities that aggravate his knee, the plaintiff describes a situation
where his leg is at a ninety degree angle, which sometimes causes pain, and he
will raise his leg by putting a stool or something in front of it, or he will,
if standing, put more weight on his left knee.  He says he can walk further
after he has been for massage therapy.  Dr. McConkey agreed that the
plaintiff bending his knee in a static position beyond 30 degrees for extended
periods of time is going to cause problems for him.  Dr. McConkey said
also that stiffness and discomfort will likely occur if the plaintiff sits for
a long period of time with his leg in a particular position.

[112]    
Dr. McConkey gave this prognosis as part of his initial February
25, 2009 report:

Prognosis: Mr. Stevanovic suffered a
significant and complex injury to his right knee as a result of the motor
vehicle accident May 28, 2005. He has permanent partial disability. Overall in
the short term that is five to 10 years I believe that there will be gradual
improvement in some of the disabilities that relate to his knee in that I would
expect him to be able to improve his strength minimally. He will likely be able
to walk further with less discomfort. I expect that there will be a decrease
overall in the sensation of stiffness and a minimal improvement in functional
range of motion. However there will be significant deficiencies. The important
persisting and permanent pathologies which will lead to impairment will include
patellar chondromalacia and chondromalacia of the femoral sulcus and some
element of stiffness related to patellofemoral articulation. This will make it
difficult for him to develop thigh (particularly quadriceps) strength. It will
limit his ability to develop strength and comfort in those activities which
relate to the use of the patellofemoral joint under load such as squatting and
arising from a squatting position, stair climbing up and down, running, jumping
and landing activities. He will be limited in endurance activities such as long
walking and particularly hiking. The discomfort arising from compression across
the patellofemoral articulation will make it difficult for him to work in tight
places or low down and will restrict his ability to lift weights of importance
from below his waist. It is likely that there will be some persisting
difficulty sitting at a desk in a greater than 90 degree knee flexed position.
Sports participation in a similar fashion will be restricted. It is unlikely
that he will return to any meaningful running or running sports, hiking,
skating, or other jumping deceleration change of direction sports. He will
likely be restricted to walking, simple working out, swimming and with some
improvement in present overall functions and cycling.

In terms of
employment he will be restricted to non laboring sedentary types of
occupations.

[113]     Dr. Anton
was asked whether the plaintiff’s impairments rendered him unemployable as of
his last assessment and whether it was more the physical or psychological
factors.  Dr. Anton said it was a combination.  Dr. Anton said that pain,
fatigue, anxiety, and depression have an effect on cognitive function, and
those effects would be further barriers to employment.  He said that the
plaintiff would have to improve considerably to work competitively, even in
sedentary jobs.  He said he based this opinion on his findings at the time of
his assessment (his last assessment being in 2008) that the plaintiff had specific
physical limitations, continuing pain and fatigue.

[114]     In terms
of restrictions, Dr. Guy said that the plaintiff had no limitations on
activities of daily living, which he said meant he could do simple tasks such
as getting up, washing and cooking.  Dr. Guy said that the plaintiff could
perform light activities without lifting heavy objects.

[115]     I think it
is clear that there will be permanent restrictions requiring the plaintiff
perform only reasonably light work activities.  As Dr. Guy indicated, and as
Dr. McConkey’s view became, the patellofemoral joint is the major concern,
and is the major cause of the plaintiff’s discomfort, disabilities, and lack of
function, and there will likely be some progression of wear in that joint over
time.

[116]     It appears
that the only viable option for the plaintiff in the future, if his symptoms
become too severe, is a total knee replacement.

[117]     Both Dr. McConkey
and Dr. Guy thought that if a total knee replacement was necessary, it
should be put off until as late as possible, i.e. when the plaintiff reaches
age 55 or later.

[118]     Although
the total knee replacement should be delayed as long as possible, I think that
it appears very likely in the long run.  I accept Dr. Guy’s opinion that
in the next twenty years or so, pending a total knee replacement, it is
important that the plaintiff maintain his strength, but that his pain, in any
event, is likely to increase over that period.

Treatment of the plaintiff and overview of his
symptoms post accident

[119]     Although
non-pecuniary damages were agreed, in order to understand the ongoing
difficulties that the plaintiff alleges and to put in context the various
experts that the plaintiff saw, it is most convenient to review the evidence of
the general practitioner, Dr. Mazzarella, who was generally responsible
from his care since the accident.

[120]     Dr. Mazzarella
was the plaintiff’s general practitioner immediately following the accident. 
Before that, Dr. Warren was his general practictioner.

[121]     Dr. Mazzarella
first saw the plaintiff on June 27, 2005, after he had been in the hospital for
twelve days following the accident.  The plaintiff’s difficulties at that time
included complaints of recurrent headaches, difficulty sleeping and what Dr. Mazzarella
described as a mood disorder.  Throughout the years that followed, the
plaintiff continued to complain of headaches and sleeping difficulties,
including an inability to get to sleep until late in the night or early in the
morning.  Dr. Mazzarella prescribed numerous different medications for his
headache pain and disrupted sleep.  The plaintiff had neck complaints and
complained of anxiety and outbursts that he said did not improve.  By the end
of August, the plaintiff was referred to a physiatrist and an occupational
therapist at the Early Response Brain Injury Services at G.F. Strong.  However,
he continued to have ongoing headaches and disrupted sleep issues.

[122]     In 2005,
the plaintiff was referred by Dr. Mazzarella to a physiatrist, Dr. Dhawan,
and by Dr. Dhawan to Dr. Raina, a consulting psychiatrist.  For the
first two years following the accident, Dr. Mazzarella prescribed numerous
medications for sleeping difficulties, anxiety, and headaches.  The plaintiff
started psychotherapy with Dr. Elsie Cheung, a psychologist.  Although
Dr. Mazzarella quarterbacked his care, he did not consult directly with
Dr. Dhawan, Dr. Raina, or Dr. Cheung.  Dr. Raina took the
plaintiff off Effexor and put him on another drug, Epival to prevent headaches
and act as a mood stabilizer.

[123]     Through
2006, the plaintiff continued to complain of sleeping difficulties and
headaches aggravated by activities.  By 2007, the plaintiff continued to
complain of ongoing headaches and sleep dysfunction without apparent relief. 
He was started on anti-depressant medication.  He was referred to an ear, nose
and throat specialist, Dr. Manaray, to see if his sinuses had a role in
his ongoing complaint of headaches.  In August 2007, he was referred to Dr. Gordon
Robinson, a specialist in headache management.  At this time, the plaintiff was
still complaining of ongoing day/night reversal with sleep.  In 2007, Dr. Guy
referred the plaintiff to Dr. Bob McCormack, to discuss patellar cartilage
replacement options.

[124]     By the
fall of 2007, the plaintiff’s medication included Remeron (45 mg nightly),
Propranolol (40 mg twice a day), Gabapentin (300 mg 3 times per day), Temazepam
(30 mg 1-2 tablets nightly) and a new medication, Nozinan (25 mg nightly).  Dr. Mazzarella
testified that these were mostly geared towards improving his sleep, but were also
used in treating patients with chronic pain and components of underlying
anxiety.

[125]     In
December 2007, the plaintiff had an MRI for his left shoulder, which had been
injured in the accident and that was repaired by Dr. Gilbert, who did a
bankart repair of the left shoulder in 2008.

[126]     By
February 22, 2008, after his final knee surgery, the plaintiff was prescribed Dilaudid,
described by Dr. Mazzarella as a strong narcotic medication, to manage his
pain symptoms.  By the end of March 2008, the plaintiff had graduated from
using crutches to regular weight bearing and was advised to start intensive
physiotherapy to work on the quadricep strengthening and improve the tracking
of his patella.

[127]     Carole
Bishop, a neuropsychologist, saw the plaintiff in 2008.  She recommended that
he continue to see his psychiatrist to monitor his anxiety and depressive-type
symptoms, as well as pharmacological issues.  She noted that the plaintiff’s
psychologist was in a better position to comment on psychological treatment
issues.

[128]     By June
2008, the plaintiff reported slow progress with the rehabilitation of his right
knee, and he made contact with the UBC sleep disorder clinic.  By August, after
having been recommended an anti-inflammatory with a stomach lining protectant,
the plaintiff reported that he had no new changes regarding his headache
symptomatology.

[129]     In August
2008 Dr. Anton, whom the plaintiff had seen in 2005, 2007 and in May 2008,
reported on the plaintiff’s condition.  Dr. Anton made a diagnosis which I
will refer to later, and suggested an inter-disciplinary pain program.  Dr. Mazzarella
received Dr. Anton’s report in November 2008.

[130]    
By the fall of 2008, the plaintiff had completed a six week part-time
audio visual program in sound engineering, and was considering full time
enrolment for a one year program.  It was an introductory course in the basics
of microphone design, studio design, and a basic recording program.  After the
plaintiff passed this introductory class, he enrolled in a full-time course in
audio engineering and music production, a four-hours per day, Monday through
Friday program.  Although Mr. DeMarcus, the witness from Harbourside,
expected the plaintiff to pass the course, the plaintiff had missed about half
the days he was allowed to miss.  I will return to the course when I
discuss the loss of earning capacity claim in more specificity.

[131]     Dr. Mazzarella
observed that the plaintiff continued to express difficulties in reading,
working at his computer and doing paperwork due to poor concentration in
conjunction with sleep and headache issues.  The plaintiff in November 2008
reported that he stopped one drug, Cymbalta, because it made no difference to
his pain or sleep patterns.

[132]     Dr. Mazzarella
reported that in December 2008, Wendy Lintott, an occupational therapist retained
by the defendant’s insurer for the plaintiff, called him concerning the
plaintiff’s absences from the program at of the Orion Health Chronic Pain and
Rehab Clinic, which were apparently as a result of the plaintiff’s gastro-intestinal
issues.  In December 2008, the discharge summary from Orion Health indicated
that the plaintiff was not able to attend, or had to leave early given symptoms
of increased abdominal pain or expression of fatigue and anxiety.  In February
2009, the plaintiff reported to Dr. Mazzarella that he had discontinued
Cymbalta (a medication suggested by Dr. Dhawan a year earlier) and
Propranolol but without change to his headache patterns, and wanted to
discontinue Nozanan.  By 2009, he had difficulty sleeping, reporting only
getting 4-5 hours of sleep per night.  Dr. Mazzarella reported that the
plaintiff was referred to Dr. Judith Allen, a sleep specialist at UBC Sleep
Disorder clinic.

[133]     In March
2009, Dr. Mazzarella received the medical legal opinion from Dr. Riar,
a psychiatrist, who had conducted an independent medical examination of the
plaintiff.  He noted that Dr. Riar recommended ongoing psychiatric
intervention.  In March 2009, Dr. Mazzarella discussed Dr. Riar’s
recommendation for a regular psychiatrist follow up, as well as a group
cognitive behavioural therapist with the plaintiff.  The plaintiff told him
that he would consider the options, but in the meantime he would continue to
see Elsie Cheung, his psychologist, as he had for the last two years.  Dr. Mazzarella
did not think the plaintiff would benefit from seeing a psychiatrist, as he had
tried all the typical medications.  As to group therapy, Dr. Mazzarella did
not think it would be helpful, as he thought the plaintiff’s anxiety increased
in group settings, and that this had occurred previously at the pain clinic.

[134]     Dr. Mazzarella
received an orthopaedic consultation report from Dr. McConkey, as well as
a follow up report from Dr. Allen, the sleep specialist at the UBC Sleep Disorder
clinic.  Dr. Mazzarella noted that in 2009, the plaintiff was attending
the sound engineering course for four hours per day, five days per week.

[135]     In his
second report, dated July 1, 2009, Dr. Mazzarella indicated that the
plaintiff did not want to pursue seeing a psychiatrist, given that he was not
clinically depressed and had tried various antidepressants in the past for
prolonged periods without benefit.

[136]     The
plaintiff indicated to Dr. Mazzarella, as he noted in his second report, that
although the surgery to his knee was complicated by post-operative infections, there
was further surgery to repair the joint, and he was having ongoing and chronic
right knee pain, the severity of the generalized pain seemed to have lessened.

[137]     The
plaintiff had surgery on his shoulder in 2008.  The left shoulder labral tear
that had been repaired was showing great improvement in both the level of pain
as well as improvement in shoulder functionality.

[138]     The
plaintiff reported to Dr. Mazzarella during the sound engineering course that
he continued to struggle with insomnia, but got more sleep than he did two
years previously, and that despite his issues with sleep disturbances and
chronic pain, he was doing fairly well at the sound engineering course, achieving
a 70% average.

[139]     While not
commenting on whether the plaintiff’s “potentially pre-morbid personality
traits” could have affected how he “manages a loss of control as outlined by Dr. Riar”,
Dr. Mazzarella said it was clear that the plaintiff had no previous
psychiatric issues.  In his opinion, the chronic pain conditions aggravated
mood and anxiety, which in turn reinforced a perception of enhanced pain
experience as well as creating some cognitive problems.

[140]     In 2008,
the plaintiff complained that his hip had become more painful, sometimes while walking
and sometimes while on the stationary bike.  As to his right knee, the plaintiff
said it was better with a brace that prevented sideways shifting, but that sitting
with his leg at 90˚ sometimes caused more pain, and that standing on the
knee or walking caused pain.  The plaintiff testified that he still attends massage
therapy for his neck, right hip, both of his knees, and sometimes his lower
back and arms.  Apart from the knee pain, the plaintiff described himself as having
almost daily headaches.

[141]     Dr. Mazzerella
expected that the plaintiff would continue to experience physical pain from his
various injuries.  He could not comment with any certainty on whether the
plaintiff would benefit from specific treatment and interaction with a
psychiatrist or group cognitive behavioural therapy.  He thought that the plaintiff
had trials of various psychotropic anti-depressant medications to discover whether
they improved his anxiety and depression issues.  Dr. Mazzarella said in
his experience, having dealt with many patients involved in motor vehicle
accidents, that the closure of the legal matter allows a shift of a person’s
energy from a “pain centered to a functional center [sic] program”.

Chronic Pain, Anxiety, Headaches and Sleep Problems

[142]     A
difficult aspect of the case is the ongoing pain, anxiety, headaches and
sleeping problems of which the plaintiff complains.  Counsel for the plaintiff says
that these reported problems will persist, and together with the plaintiff’s physical
injuries, render him competitively unemployable.  Counsel for the defendant, on
the other hand, suggest that the medical evidence indicates that the plaintiff will
improve in the next five to ten years, that his anxiety will decrease, and that
his sleep problems have already improved significantly.

(i) Chronic pain and anxiety

[143]     Although a
number of witnesses were called on the issue of the ongoing pain of which the
plaintiff complains, and the anxiety he says he incurs, the witnesses that I
found to be of the most assistance in my consideration of this issue were Dr. Anton,
called by the plaintiff, and Dr, Riar, a psychiatrist called by the defendant.

[144]     Dr. Anton,
a physical medicine and rehabilitation expert, saw the plaintiff on three occasions. 
He reviewed the physical evidence and the subjective complaints of the
plaintiff.  He recommended that the plaintiff be referred to a new psychiatrist,
or back to Dr. Raj Raina, a psychiatrist he had earlier seen, because he
sensed the plaintiff was suffering from a psychological condition, such as an
anxiety disorder.

[145]     Dr. Anton
was of the opinion that the plaintiff probably satisfied the DSM IV TR
criteria for the diagnosis of chronic pain disorder associated with both
psychological factors and a general medical condition.  Criteria for that, he
said, included the presence of pain for more than six months, severe enough to
warrant clinical attention, and cause significant distress or impairment of
function.  Psychological factors, he said, play a significant role in the onset
and maintenance of the pain.  He believed that the psychological issues
involved in the case were a component, although that component was treatable,
he said that the question is how effective will be the treatment be.  However,
he thought a psychiatrist could better comment on that.  Dr. Anton agreed
that the treatment by a psychiatrist can be of significant assistance in
alleviating anxiety symptoms.  Dr. Anton also agreed that the failure to
seek psychiatric attention, if indicated, could or will result in less than
optimal result of rehabilitation.

[146]     Dr. Anton
thought that the chronic headache was a disorder that was contributing to
chronic pain.  He described the plaintiff’s headaches as post traumatic
implying that they were caused by trauma to the neck or head in the accident.  Dr. Anton
noted that over the three times he saw the plaintiff he had improved.  Dr. Anton
agreed that the goal of a chronic pain program was to allow the patient to
develop strategies and tools to function better with the pain.

[147]    
In his second report Dr. Anton said:

Mr. Stevanovic has multiple physical impairments arising
from the direct and indirect effects of injuries suffered in the accident.
Those include activity related pain in the right knee, loss of full extension
of the right knee, pain in the left shoulder, decreased endurance due to
deconditioning, and fatigue arising from disordered sleep. He probably also has
psychological impairments, though I would defer to his treating psychologists
and psychiatrists regarding specific psychiatric diagnoses.

It is in my opinion probable Mr. Stevanovic’s pain, fatigue,
and psychological condition also affect his attention and concentration and
contribute to cognitive impairment.

Mr. Stevanovic’s impairments cause restricted
participation and disability for a wide range household tasks and recreational
activities that were normal for him before the accident.

Mr. Stevanovic’s impairments also cause disability for
work. He is at this time not able to return to his former work. In fact, his
fatigue, pain and associated cognitive impairments probably make him unemployable
at present.

Mr. Stevanovic’s prognosis
for return to any sort of employment is still uncertain but should be
considered guarded. Even in the best case, he will not become pain free and his
pain will limit his work options. He will not be able to return to his former
work or any similar work of a physical nature. He would have to improve
considerably to work competitively in sedentary work.

[148]      The
plaintiff did not lead a report of a psychiatrist, although he introduced a
report of a psychologist, Elsie Cheung, who has provided considerable
counselling to the plaintiff over a lengthy period.  The plaintiff saw a
psychiatrist, Dr. Raina, for a period of time, but no report from that
doctor was introduced in evidence.

[149]     Dr. Riar,
a psychiatrist with an interest in forensic psychiatry, was called by the
defendant.  He works with patients with chronic pain, seeing three or four such
patients per week.  He provides expert opinions approximately equally to both
defence and plaintiff’s counsel and was qualified to give opinion evidence in
the area of psychiatry.

[150]     He saw the
plaintiff for two hours in July 2008.  Dr. Riar thought that the plaintiff
had recovered completely from the effect of his mild traumatic brain injury
within a few months, and his complaints of cognitive difficulties, behaviour,
and emotional problems were not the product of organic brain injury.  Upon a
consideration of all the evidence in this case, I accept his opinion that to
the extent that the plaintiff suffered a mild brain injury from hitting his
head in the accident, those problems shortly resolved.

[151]     Dr. Riar
said that he believed the plaintiff’s chronic pain disorder was perpetuated and
maintained significantly by psychological factors, as well as his underlying
medical condition.  He thought that the plaintiff should attend a group, rather
than individual, treatment for anxiety disorder.  He thought that the plaintiff
remained vulnerable for anxiety in the future because he has a constitutional
vulnerability for it.  He felt that his chronic pain will lessen once there is
improvement in his anxiety and stress.  (Dr. Bishop, a
neuropsychologist, commented that the plaintiff was not as forthcoming about
his pre-motor vehicle anxiety as he was about his post motor vehicle anxiety.  Dr. Riar
commented about the cause of his post-accident anxiety).

[152]    
Dr. Riar wrote as follows:

On the issue of causation of his physical injuries, I believe
that the accident in question was responsible for his initial injuries and I
will leave it to the other experts to comment on his ongoing physical issues.
Having said that, I believe that Mr. Stevanovic’s chronic pain disorder is
perpetuated and maintained significantly by psychological factors, as well as
underlying medical condition.

On the issue of causation of his anxiety disorders, there is
mention of him having some anxiety/vulnerability for anxiety, in Dr. Bishop’s
report, but besides that, I am not aware of any serious psychiatric problems
prior to the accident, which makes me conclude that the accident and its
sequella is most likely responsible for bringing on his anxiety symptoms. As
far as symptoms of ongoing cognitive and behavior disturbances are concerned, I
believe that his anxiety, sleep disturbances, pains and other stressors like
not working are mainly responsible rather than any effect of the mild brain
injury he most likely sustained as a result of the incident in question.

On the issue of treatment, again, I will leave it to the
other experts to comment on the need for any physical intervention. As far as
psychiatric intervention is concerned, I believe that it is paramount, and so
far, interventions with one on one psychotherapy, and use of various
psychotropic medications have not made a significant improvement. I believe
that it will be beneficial for him to attend a group treatment program for
anxiety, where a cognitive behaviour approach should be implemented to tackle
his various anxiety related symptoms and attitudes. At the same time, he should
be seeing a psychiatrist, and his medication should be reviewed and proper
compliance should be achieved. Other beneficial intervention will be concluding
this litigation, as this will enhance his recovery by taking the stress and any
tendency to take a sick role for secondary gain away.

As far as psychiatric disability
is concerned, I believe that at the time of my interview, Mr. Stevanovic
was at least partially disabled due to his chronic pains, as well as protracted
anxiety. As far as his short-term prognosis, I felt that it was guarded and he
would continue to have these symptoms for the next 6 to 8 months, but with
intervention, the functioning can be improved. As far as long-term prognosis
for his anxiety, I feel that it is favorable but he is vulnerable for future
episodes of anxiety and this has to do with his constitutional vulnerability,
rather than any effect of the accident. As far as chronic pains are concerned,
there will be improvement in his symptoms, and his ability to deal with his
chronic pain after the resolution of his anxiety symptoms, and it does not seem
that they will completely leave him for another year or two.

[153]     Dr. Riar
was aware that the plaintiff was being treated regularly by a registered psychologist,
Elsie Cheung.  Dr. Riar recognized that he had received extensive
cognitive behavioural therapy from Dr. Cheung but said that is why he
thought that he should try different strategies.

[154]     Dr. Riar
had diagnosed a mild traumatic brain injury (that had resolved), an anxiety
disorder (a generalized anxiety disorder) and a chronic pain disorder.  Dr. Riar
was asked on cross-examination whether the plaintiff’s general anxiety disorder
was caused by the motor vehicle accident.  He agreed it was his view that the
stressors and pain the plaintiff experienced as a result of the accident led to
his anxiety.  Dr. Riar added there was no psychological medical
condition or psychiatric medical condition impacting on the plaintiff’s ability
to function at the time of the motor vehicle accident.  When asked whether losing
the ability to engage in his favourite sports would also add to the plaintiff’s
anxiety symptoms, Dr. Riar agreed, saying that the accident and the pain caused
stress on the plaintiff which led to him having the anxiety disorder.  In terms
of the plaintiff’s anxiety disorder, Dr. Riar added that it is now “independent
… of his pains; it was started with them, but it’s independent”.  Dr. Riar
agreed that if the plaintiff’s knee pain was increasing over time, that would
impact on his ability to sleep.  He agreed that if the plaintiff’s knee pain
increased over time, that there may be a possibility that he is at risk for
further psychiatric disorders or mood disorders.

[155]     Dr. Riar
was asked “Would you agree that Mr. Stevanovic would have to have
substantial improvement in his condition before he could be employable?”. 
Dr. Riar responded in the affirmative, particularly with respect to the
plaintiff’s anxiety.

(ii) Headaches

[156]     The
plaintiff called Dr. Robinson, an expert in the field of neurology with a
particular speciality in managing and treating headache pain.  Dr. Robinson,
who saw the plaintiff on one occasion, did not think his headaches were caused
by a head injury.  He came to the conclusion that his recurring headaches were
chronic (i.e. the condition had gone on longer than three months) and were related
primarily to a neck injury.

[157]     Dr. Robinson
observed that the plaintiff had explored almost all of the potential treatments
for chronic headaches related to neck injury, but they had been unsuccessful. 
He said that headaches are a subjective experience.  Based on his belief that
the plaintiff had head and neck injuries as a result of the accident, the
temporal nature of the headaches, and the absence of pre-accident headaches, he
concluded that they were chronic and related primarily to a neck injury.  He
indicated on cross-examination that substantial anxiety disorders and an
associated lack of sleep are two factors that, if treated, are potential
treatment options to mitigate headaches.

[158]     Dr. Tessler,
a neurologist whose report was filed by the defendant, said that the
plaintiff’s concussive injury was likely a transient physiological disturbance
of the brain.  He said that his ongoing headaches may be related to cervical
soft tissue injury or the head injury.  He said that the plaintiff had not
responded well to medication, but would improve with the passage of time. 
However, he observed that the plaintiff will likely have ongoing headaches.

(iii) Sleep problems

[159]     The
plaintiff complains of ongoing sleep problems and the resulting fatigue he has
suffered.  The plaintiff reported this problem to Dr. Mazzarella, it
appears, as early as July 2005. The plaintiff indicated that his headaches
occasionally interfere with his sleep.

[160]     The plaintiff
says he gets four to five hours of sleep per night, and has gone to the sleep
clinic at UBC, where he has seen Dr. Allan for treatment.  He takes melatonin
and keeps a sleep diary to assist in his sleep.

[161]     The
parties each called witnesses who are sleep experts.  The plaintiff called Dr. Avinder
Minhas, and the defendant called Dr. Judy Allen.  The study of sleep
disorders appears to be a relatively new area of study.

[162]     The
experts disagreed on the cause of the plaintiff‘s apparent sleep problem.

[163]     Dr. Minhas,
called by the plaintiff, was tendered as an expert in the field of psychiatry,
internal medicine, and sleep disorder medicine.  He described sleep disorder
medicine as a field which deals with disorders related to sleep: difficulties
falling asleep, staying asleep, or insufficient sleep, among other things.  He
runs the sleep laboratory in Richmond.  The plaintiff was referred to Dr. Minhas
in 2008 by Dr. Dhawan, a physiatrist who was treating the plaintiff.  Dr. Minhas
prepared reports dated May 3, 2006 and July 12, 2009.

[164]     Dr. Minhas
opined that the plaintiff has chronic refractory insomnia, which he thought was
a direct consequence of the motor vehicle accident.  He said the plaintiff has
chronic pain related to this accident, and also has chronic anxiety with
ruminations at night.  Dr. Minhas said that the plaintiff most probably had
a traumatic brain injury during this accident.  The pain, anxiety and trauma to
his brain were the most probable reasons why the plaintiff cannot sleep
adequately at night.  In Dr. Minhas’ view, it would be difficult to assign
weight to these individual factors in the causation of the plaintiff’s sleep
problems.  Any and all of these three factors can produce psycho-physiological
insomnia, which Dr. Minhas said is an acquired behaviour and can assume a
life of its own.

[165]     Although Dr. Minhas
thought that the pain, anxiety and trauma to the brain were the most probable
reasons as to why the plaintiff could not sleep adequately at night, he said
that if the traumatic brain injury was not a factor, any of the conditions
described (anxiety, pain) could cause the condition that the plaintiff  has.  Dr. Minhas
thought that chronic pain was notoriously difficult to treat, but some people,
he said, do very well.

[166]     When Dr. Minhas
saw the plaintiff again in 2009, it was not for treatment purposes, but only
for an independent consultation for litigation purposes.

[167]     Dr. Minhas
was asked on cross-examination about the Epworth scale, which is a subjective
measure of a person’ sleepiness during the daytime.  During those tests, the
plaintiff’s results indicated that he was not sleepy during the day.  Dr. Mihas
was asked to reconcile that there were two Epworth scale tests showing a lack
of sleepiness with the conclusion the plaintiff has a chronic sleep problem.  Dr. Minhas
replied that the test cannot be used in isolation to determine if the plaintiff
was getting enough sleep.

[168]     The
plaintiff was referred to Dr. Judith Allen by Dr. Mazzarella.  Dr. Allen
is a psychiatrist with her main area of practice in the area of mood disorders
and anxiety.  She was qualified to testify as an expert to give opinion
evidence in the area of psychiatry and as a doctor with a special interest and
experience in sleep disorders.  Dr. Allen prepared reports dated January
28 and May 20, 2009.

[169]     She
reported that during the day the plaintiff reported feeling fatigued, anxious,
and that his concentration is poor.  He attributes his fatigue and poor
concentration to poor sleep at night, despite the fact he has an ongoing pain
issue.  She said that most patients with chronic pain will complain of feeling
fatigued, anxious and having poor concentration.  She felt that chronic pain
was therefore an equally valid explanation for his daytime symptoms, as opposed
to insomnia or secondary to disrupted sleep at night.

[170]     Dr. Allen stated
her belief that the plaintiff has sleep state misperception, given the
plaintiff’s perception that he is only sleeping four hours per night, but yet has
absolutely no excessive daytime sleepiness.

[171]     Dr. Allen
described sleep state misperception as a condition where a patient believes
they do not sleep as much as they do, in fact, sleep.  She said that the
plaintiff reported only sleeping four hours per night.  However, people
sleeping less than six hours per night on the average tend to fall asleep
during the day, and the plaintiff did not have that complaint.  Dr. Allen booked
an actograph, a contraption that looks like a wristwatch, which can give a good
estimate of the length of sleep, time in bed, and time of sleep throughout the
day, as well as naps.  Dr. Allen testified that this is an “at home” study,
so it was more reflective of a person’s normal sleep pattern.  She said that in
the plaintiff’s case, the subjective findings and the objective findings did
not match, because the plaintiff claimed to be awake for a longer period of
time than the actograph indicated.  On cross-examination, she said that anxiety
can develop as a result of insomnia, and also, anxiety can cause insomnia.

[172]     Dr. Allen agreed
that sleep state misperception is not synonymous with malingering, and is a
condition that itself can cause anxiety symptoms.

[173]    
In her May discharge summary, Dr. Allen wrote

At follow up he reverted to
spending 7-8 hours in bed and again was having longer periods of time to fall
asleep.  While pursuing the sleep restriction he was falling asleep within
10-15 minutes.  He also disputed the findings of the sleep study.  He had five
extremely brief awakenings during the night, all of which he claimed were much
longer because he was aware of being awake for a long period of time.  This is
impossible.  At follow up he continued to complain of anxiety, not being able
to get interested in things, variable appetite and poor energy and
concentration.

[174]     Dr. Allen said
the plaintiff’s complaints do not sound like phase shifted sleeping pattern,
although she could not rule that out entirely, as his sleep diary was out of
date, and she described him as a relatively poor historian about his sleep.  Phase
sleep disorders relate to the timing of sleep rather than actual sleep itself.

[175]     She agreed
that, in general, chronic pain can be a potential underlying cause of
insomnia.  As the treating physician, she had not been shown any psychiatric
opinions.  She would not dispute that if the plaintiff was diagnosed by a
psychiatrist as having a pain disorder or a generalized anxiety disorder and an
adjustment disorder, that he would have a significant sleeping difficulty if
those were true diagnoses.

[176]     Dr. Minhas
in reply to Dr. Allen’s belief that the plaintiff may have sleep state misperception,
encouraged caution, saying that such a patient may have fragmented sleep, which
requires a very specialized EEG testing to discover.

[177]     Dr. Minhas
testified that because there was a question of the actograph malfunctioning
with respect to possible sleep state misperception, he would have had the
plaintiff maintain a sleep diary for two weeks, discarded the diagnosis of
delayed sleep phase syndrome, and begin to consider other causes.  He said he
got the impression Dr. Allen did not consider the plaintiff’s pain issue. 
Dr. Minhas was asked why he did not run tests, if he thought that Dr.
Allen’s testing might be flawed.  He said that, as he understood it, there was
no time for more testing of the plaintiff, and since the plaintiff was being
treated by Dr. Allen and not by him, he left it to Dr. Allen and UBC
Hospital.

[178]     Dr. Allen
testified that she does not know why the plaintiff has developed phase delayed
sleep syndrome, if that is his condition.  She has not necessarily seen that condition
develop in other patients with head injuries.

[179]     The expert
evidence concerning the plaintiff’s apparent sleep difficulties is inconclusive
as to whether the plaintiff is actually lacking sleep, is simply misperceiving
that he is lacking sleep, or is suffering fatigue from chronic pain.

Mr. Stevanovic’s physical capabilities

[180]     I have set
out above the evidence of Dr. McConkey, Dr. Guy, and the plaintiff on
his physical limitations by reason of his physical injuries.

[181]     As to the
plaintiff’s functional capacity, plaintiff’s counsel called Louise Craig, a
physiotherapist and clinician who worked with Dr. Hartzell.  She worked
under Dr. Hartzell’s direction and did an assessment of the plaintiff on
June 1, 2009 using the program called the Matheson Functional Evaluator.  Ms. Craig
was tendered to administer functional capacity evaluations.  The Matheson
Functional Pain Scale that she used is a subjective report.

[182]     Ms. Craig
made a summary of the plaintiff’s physical abilities, including his sitting,
standing, walking, lower limb coordination including stair climbing, grip
strength and dexterity, reaching, and so forth.  She did not give an opinion on
whether the plaintiff could do these things on a sustained basis.  She agreed
that the plaintiff’s perception is that he is in the lowest 5% of healthy
people who are employed.  Some of the tests that were performed by the
plaintiff included demonstrating an ability to ascend or descend two flights of
stairs without handrail support, which the plaintiff successfully did.

[183]     Ms. Craig
agreed on cross-examination that based on his own perception, it appears the
plaintiff was able to vacuum for a period of time, sweep for a period of time,
and go down stairs without external assistance.  The plaintiff perceived that
he could do some painting at eye level for a period of time and could go
grocery shopping.  Her observations noted that, in the testing, he was able to
demonstrate the ability to perform sustained arm reach at waist and sitting for
two hours and fifteen minutes.

[184]     The
plaintiff called Dr. Walter Hartzell, who has practiced occupational
medicine since 1973.  He was tendered as an expert in the field of occupational
medicine, in particular to give opinion evidence about the plaintiff’s fitness
to work and capacity to work.  I ruled that Dr. Hartzell was qualified to
give evidence in the area of occupational medicine, but was not qualified to
give opinions that express a psychological or psychiatric opinion.  As a
result, certain paragraphs of his report were struck out.

[185]     During the
course of Dr. Hartzell’s evidence, Mr. Deering acknowledged that
there is no dispute that the plaintiff has a functional disability, and there
is no dispute he cannot carry on his employment with RISO that he had before
the accident.  Nevertheless, the extent of any continuing physical disability
was in issue for the loss of earning capacity question.  The plaintiff was
about five or six weeks into his new retraining program at Harbourside when he
was assessed in June 2009 by Dr. Hartzell.

[186]    
Dr. Hartzell opined that the plaintiff:

“has a permanent functional
impairment of his right lower limb and requires a brace for sustained
mobility.  It is my opinion that this would restrict him to sedentary occupations
and would prevent him from working in hazardous environments which would
require difficult footing or work on ladders, gangways, or scaffolding”.

[187]     In terms
of whether the plaintiff was suited to the occupation of a sound engineer, Dr. Hartzell
said at some point “he should be physically capable of working in sedentary
occupations to which he is vocationally suited”, but Dr. Hartzell would
defer to a vocational consultant regarding the plaintiff’s mental,
psychological cognitive capacity and his aptitudes for a career in this field. 
He opined that the plaintiff had a permanent functional impairment of his right
lower limb which will significantly limit his employability from a physical
point of view.  Dr. Hartzell was of the view that the plaintiff at the
time was deconditioned and should engage in a physical rehabilitation program
with supervision.

[188]     Aram J.
Heilbrunn, a physiotherapist, was called by the plaintiff but not as an expert
witness.  He had treated the plaintiff for knee-related sports injuries to
both knees prior to the accident, and acted as his physiotherapist following
the accident.  Mr. Heilbrunn was called only as to his observations in his
sessions with the plaintiff.  The movements that he observed that caused the
plaintiff pain, as reported to Mr. Heilbrunn, were with his right knee when
he crouches, kneels, or stands for a prolonged period, when he walks for a
prolonged period, and he also commented on an inability to run or lift heavy
objects.  On every occasion the plaintiff came to see Mr. Heilbrunn, he
reported knee pain.  The plaintiff on a number of occasions complained of lower
back pain and right hip pain.  He complained of left shoulder pain over a
prolonged period of time until he had shoulder surgery for his left shoulder.  Mr. Heilbrunn
testified of the plaintiff’s regular complaints of headaches and neck pain, but
more specifically headaches.  In terms of the last three months before trial,
he said that the plaintiff complained of clicking, popping and shifting in his
right knee, pain in his right hip, inability to spend long periods of time on
his feet due to right knee pain, and an inability to participate in sports.

The sound engineering program

[189]     This
evidence is important as it shows the effort of the plaintiff to be retrained
in an area where he might find employment.  The plaintiff recognized his
physical limitations in doing “live sound”, which involves carrying equipment,
but thought there were options for studio or home studio work.

[190]     The
plaintiff called Chris Demarcus, an audio engineer and a program director at
Harbourside Institute of Technology, where the plaintiff has taken courses.  He
teaches computer, computer science classes, and music business classes.

[191]     Harbourside
is a private career training institute, a trade school with an “element of an
art school involved”.  They train people to set up microphones and be audio
engineers from large concerts to small studios and clubs.

[192]     When the plaintiff
met Mr. Demarcus, he wanted to do live sound, which involves heavy lifting,
or studio recording, and that is what 50% of the students do.  The plaintiff
also expressed to Mr. Demarcus his interest in studio work in music studios
but only 1% of students graduating from the sound engineer program are able to
obtain such work.

[193]     Based on the
plaintiff’s performance in the part-time course, Mr. Demarcus thought that
he was a good candidate for the full time course, as he was “very technical”. 
In the full-time course, the students attend school four hours per day for five
days, and there are 8-16 hours of open time each week when students can work on
projects.  The plaintiff began attending there in April 2009 in the full-time
program.

[194]     Mr. Demarcus
said that the plaintiff had a 71-72% grade in the program to date, which put
him in the lower middle of the class.  He said that the plaintiff did not
hand in half of his assignments on time, or at all.  He described the plaintiff
as “completely technical, definitely not a salesman”, and that he was not
driven, not a self promoter and not outgoing.

[195]     In terms of
operating the sound board or console at a live performance, Mr. Demarcus
said that was something that a person works his way up to.  Interns doing live
sound work engage in heavy physical work, such as often carrying rolled up
lengths of cables and large trunks of equipment.

[196]      Apart
from live sound, other jobs for students are starting their own production
companies.  The hardest part of this, Mr. Demarcus said, was going out and
raising the financial capital.  Music producers, Mr. Demarcus testified, are
“never at home” as they are always in the studio or at an event.

[197]    
He described those who go into business on their own this way:

Incredibly outgoing, ambitious,
and also just incredibly driven.  It’s something that you have to be very
driven into.  Also they’re both technically skilled which — and artistically
skilled but socially skilled.

[198]     Mr. Demarcus
testified that a potential employer would like the plaintiff’s technical ability,
but his inability to perform heavy lifting and stay focused for twelve hours could
be problematic, in his view.  Mr. Demarcus said he might not even hire the
plaintiff as an intern.  He described his skill level as good but not extremely
high.  However, he found the plaintiff to be a very hard worker and a good
problem solver.

Psychological Counselling

[199]     I
described earlier the referral of the plaintiff to Elsie Cheung, a psychologist
who works with many chronic pain patients.  She has not testified before and
after working at the Worker’s Compensation Board has been in private practice
as a psychologist since 2003.

[200]    
The plaintiff was referred to Ms. Cheung by a doctor at GF Strong. 
She has conducted approximately 90 one-hour sessions with the plaintiff.   Her
first session with the plaintiff was in November of 2005.  Following her
assessment of the plaintiff, Ms. Cheung has provided ongoing psychological
counselling and treatment by way of education about chronic pain, pain
management strategies, anxiety management techniques, sleep hygiene techniques,
memory aids, encouragement of hobbies and future vocational options.  In her report
of March 26, 2008 she said:

In summarizing therapy progress
to date, Mr. Stevanovic has made progress with a.) overall ability to
manage his anxiety; b.) increased ability to complete tasks with less
procrastination; c.) return to driving (although he continues to feel wary for
pedestrians while driving); d.) acceptance of the possible permanence of his
knee problem; d.) development of new hobbies mainly of flamenco guitar and
associated culture; and e.) plans for retraining such as the sound engineer
course. Mr. Stevanovic continues to have headaches, and sleep and pain
management difficulties. He continues to feels his cognitive abilities have not
returned to pre-injury levels. He also has health concerns of an upset appetite
and corresponding weight loss.

In a further report dated
July 8, 2009, she said

I am in agreement that Mr. Stevanovic
has been left with a vulnerability to future episodes of anxiety. However, any
constitutional vulnerability for anxiety historically was dealt with by coping
techniques of keeping busy with sports, an avenue that is no longer available
to him. In my opinion, Mr. Stevanovic’s increased vulnerability is
resulting from any constitutional condition towards anxiety that has been
further exacerbated by ongoing difficulties with pain, sleep, and anxiety,
factors seen as referable to the accident. Mr. Stevanovic now has to face
a future compromised by pain, sleep, cognitive and anxiety difficulties.

[201]    
She understood that psychotropic medication was prescribed by his family
doctor, Dr. Mazzarella, by Dr. Dhawan, and early on by a psychiatrist,
Dr. Raina.  She indicated he had not been under a psychiatrist’s care from
2007 on.  She recalled him telling her that the narcotic medications upset his
stomach.  On re-examination she was asked:

Q.        Okay.  Did you in your sessions encourage him
to attend a psychiatrist independent of the treatment that you were providing?

A          No, because
throughout the sessions he mentioned a variety of drugs he was taking and how
much problem that he was having with the medication.  It doesn’t seem like
medication was going to be a fruitful avenue.

Expert vocational evidence

[202]     Each party
called a vocational expert to testify as to the employability of the
plaintiff.

[203]     The
plaintiff called John Lawless and the defendant called Joseph Hohman.

[204]     Mr. Lawless,
a psychologist, administered certain tests to the plaintiff aimed to measure an
employee’s skills and interests.  Most of his opinions are provided for
plaintiffs.  He thought that the testing indicated that the plaintiff was
suited for skilled or technical employment, and was most satisfied doing work
described by what is referred to as the artistic occupational (or interest)
theme.  The other possible themes from the testing are realistic,
investigative, social, enterprising, and conventional.  He opined that the
plaintiff was restricted from the work that he did at RISO, which requires
strength and awkward body positions.  Although intellectually capable of more
skilled occupations, such as network operator, audio recording technician,
mechanical engineering technologist and computer programmer, Mr. Lawless
felt that with the pain and fatigue he has, the plaintiff could not manage
these jobs, as he had a maximum comfortable sitting tolerance of two hours.

[205]     He indicated
that if the plaintiff’s problems restrict him from physically demanding
occupations and from more skilled and technical ones, there were few
occupations he could consider.  Mr. Lawless expressed the opinion that entry
level service occupations were not as strenuous, but he questioned whether the
plaintiff could handle full shifts given headache, fatigue and other issues.

[206]    
In Mr. Lawless’ opinion, the plaintiff was competitively unemployable. 
He said:

It’s not to say they’re absolutely
unemployable and cannot work.  It is that some very forgiving and benevolent
employer might give them a very accommodated work to do and that they could do
under very easy conditions, like, flexible and reduced hours, and comfortable
chairs, and letting them take a lot of time off.

[207]     Although Mr. Lawless
thought that the plaintiff had the intellectual capacity for passing university
undergraduate classes to train to be a computer programmer, he said that such
professionals often put in more than forty hours per week, and employers want
to know prior to hiring a candidate if they have difficulties sitting.  He
agreed that the plaintiff has transferrable skills in computer and computer-related
areas.  The plaintiff had originally wanted to be an engineer but apparently did
not have the interest, although Mr. Lawless thought that he had the capability.

[208]     The
defendant called Joseph Hohmann, who was qualified as an expert vocational
consultant in the area of vocational assessment, with a focus on
rehabilitation.  He provides reports for both sides in litigation, relatively
balanced for plaintiffs and defendants, he said.

[209]     Mr. Hohmann
did not see the plaintiff but read the medical reports.  He understood the
plaintiff’s limitations to be his right knee, with additional concerns
regarding pain, anxiety and sleep disruption.

[210]    
He said that Mr. Lawless focused on one occupational theme
(artistic), whereas he considered others, including a number that he called
investigative and realistic.  He said that Mr. Lawless did a limited amount of
study but it showed an interest in the investigative theme at second and third
level jobs.  He testified that:

Dr. McConkey has said that
sitting, prolonged sitting with the knee flexed greater than 90 degrees would
be difficult, and I was simply saying that many jobs may be sedentary classification
but wouldn’t require the individual to sit with the knee flexed to that extent
for prolonged periods.  They’re sufficiently flexible to accommodate stretching
the knee out or getting up and moving around when you need to or standing for
short periods, and I think that’s important to look at jobs in that regard
rather than being chained to a desk for eight hours because that would be very
rare.

He said in his report that Mr. Lawless had ruled
out sedentary jobs such as network operator, audio recording technician,
mechanical engineer technologist and computer programmer without exploring the
flexibility of these jobs to allow a person to move around or adjust sitting
posture to accommodate the plaintiff’s right knee limitations.

[211]     Mr. Hohmann
opined that the plaintiff receiving successful treatment of anxiety and other
conditions, with positive gain in the cognitive level of function, would have a
corresponding positive impact on his vocational options.  He testified that Mr. Lawless
had given only limited consideration to the plaintiff’s transferrable skills in
computer software and hardware, keyboarding, and network design; the fact that
he had completed two years university on a science engineering transfer program;
and that he held a certification as a Microsoft System engineer.

[212]     Mr. Hohmann
also said that Mr. Lawless’ opinion that the plaintiff is competitively
unemployable fails to make allowance for vocational rehabilitation
intervention.   He felt that, although he had not interviewed, or done a full
vocational assessment, on the plaintiff, he was motivated, had maintained what
he called “vocational momentum” and had significant transferrable skills in
areas of less physically demanding occupations.  Vocational momentum is a term Mr. Hohmann
coined to refer to a person going to work, or school, each day and maintaining
that momentum, something he said injured people sometimes lose.  He also
pointed to the plaintiff’s ability to complete a substantial training program. 
Four hours per day with study outside the class, albeit with some difficulty,
indicates vocational motivation, he said.  He observed that while the plaintiff
pursues the audio engineering program at Harbourside, many of the hourly paid
jobs in this area are quite physically demanding, and that the plaintiff might
wish to consider setting up his own recording studio.  He mentioned another
possibility being the business management side of the music industry which
would be on the sedentary, light level of activity, side of work.  He suggested
computer programming, while requiring upgrading for the plaintiff, as an area
with flexibility in terms of being able to stand and move as required.  Website
design is an area where his computer skills were assets.  Mr. Hohmann mentioned
hands-on work, like instrument repair, electrician technician benchwork, or
drafting, as the plaintiff is familiar with autoCad software.

[213]     Mr. Hohmann
said that “it is my opinion that Mr. Stevanovic has significant
limitations affecting his vocational prospects, but that he has some potential
for employment.  Based on information regarding his limitations, this
employment is likely to be on a part time basis at the present time.”  He
indicated whether the plaintiff will be able to advance beyond this depends on
his treatment outcome.  Mr. Hohmann agreed that the plaintiff not
completing half of his assignments at Harbourside was a “red flag”.

[214]     In reply, Mr. Lawless
testified about how realistic he thought some options proposed by
Mr. Hohmann were.  He testified that owning your own recording studio was
like owning your own business; there are many problems with starting up in the
notoriously difficult music industry and thus this suggestion he thought was not
realistic.  He said that being an entrepreneur in the music business is
unrealistic for the plaintiff as he has never worked in the industry, and has had
no experience outside the classroom.  With the plaintiff’s mood difficulties
and anxiety issues, Mr. Lawless suggested that life for the plaintiff as
an entrepreneur was unrealistic.  In terms of computer programming he said that
the employees are hired right out of university and the candidates must not
have limitations for sitting as the plaintiff does.  Mr. Lawless described
work as a computer programmer as very demanding.  Insofar as website design, Mr. Lawless
said that although it was a little lighter than network technician work, it
still involved being “parked” in a chair for 40-60 hours a week.  Drafting is
an area that requires a two year college diploma to start.  He said on cross-examination
that the music industry is shrinking and in terms of seeking an office job he
said that a nine month program at Harbourside but no experience in music or
business generally will not lead to a job.

Credibility of the plaintiff

[215]     In terms
of the loss of earning capacity, the question of the plaintiff’s credibility is
important because the plaintiff’s impaired earning capacity arose not only from
the physical injuries but by reason of his ongoing complaints of chronic pain,
anxiety, sleep difficulties and headaches that are based on his own subjective
reporting.

[216]     Mr. Deering
made a number of submissions concerning the plaintiff’s credibility.  They
largely relate to prior statements concerning the accident and reports of his
prior health issues to doctors.

[217]     The
defendant’s counsel argued that the plaintiff’s evidence that he did not move
before he was hit by the defendant’s car was contradicted by a statement that the
plaintiff gave to ICBC that he took a “small step or two” to his right to get
out of the way.  Furthermore, his evidence at trial was arguably different than
his statement to ICBC, which did not contain a reference to the defendant
flashing his lights as he approached to indicate he saw the plaintiff.  I agree
that these were differences, and, although it did not affect my assessment of
liability, I have nevertheless taken them into consideration in the weight I
give to the plaintiff’s evidence in determining the question of damages.

[218]     The
defendant’s counsel submits that the plaintiff failed to disclose his prior IBS
condition to Dr. Hartzell, and also argues that the plaintiff’s evidence
of his previous medical history to Dr. Carole Bishop is inconsistent with
his sister’s report to Dr. Bishop.  I do not consider this to be a
significant point.  The plaintiff, I find, has given his history of IBS
problems to numerous doctors who have seen him in this case and to the extent
that he did not mention it to Dr. Hartzell, I do not consider it
significant.  Moreover, I do not see the plaintiff’s challenge of his sister’s
report to Dr. Bishop that he was “highly reactive to stress, typically
responding with stomach problems to various stressors” as giving rise to a
significant discrepancy at all.

[219]     Mr.
Deering argued that the plaintiff denied having an alteration in his sense of
smell or taste to Dr. Tessler, but he told Ms. Landy that he had an
alteration in his sense of smell and taste.  The plaintiff’s counsel argues that
the plaintiff denied having a current loss of smell when he was interviewed by Ms. Landy. 
Mr. Deering points out that his report to Ms. Landy of whether
medication helped was contradictory to what he told Dr. Hartzell.

[220]      The
defendant’s counsel says that the plaintiff testified that he was unable to
complete sessions with a pain clinic, but yet was able to board an airplane to
Serbia in January 2009.  The plaintiff says that the suggestion
that he was not ill during his attendance at the pain clinic is unwarranted,
and the evidence was that he was sick and purchased the ticket to Serbia only
days before his departure.

[221]     The final point made by the defendant’s counsel was that the
plaintiff gave contradictory evidence at trial and in what he said to Dr. Cheung
and Dr. Bishop over whether he was looking for work outside RISO at the
time of the accident. 

[222]     Taking
into consideration the whole of the evidence and the matters pointed out by the
defendant’s counsel, I recognize that there were some inconsistencies between
the plaintiff’s evidence at trial and what he may have said to doctors and
expert witnesses on occasion.  As well, the plaintiff appeared not to always
have a good memory of what he had been told by doctors.  However, on the whole
of the evidence, I do not find the discrepancies were significant enough to
affect my overall assessment of the plaintiff’s evidence, which I generally
found to be credible.

Financial Evidence

[223]     As I noted
earlier, the determination of damages under this head is an assessment, not a
calculation.

[224]    
In Pallos v. Insurance Corporation of British Columbia (1995),
100 B.C.L.R. (2d) 260 at 271 (C.A.), Finch J.A., as he then was, described
various approaches to a loss of capacity claim.  He noted various approaches in
the cases that had attempted to put a dollar value on the loss of capacity to
earn income and said

…One method is to postulate a
minimum annual income loss for the plaintiff’s remaining years of work, to
multiply the annual projected loss times the number of year remaining, and to
calculate a present value of this sum.  Another is to award the plaintiff’s
entire annual income for one or more years.  Another is to award the present
value of some nominal percentage loss per annum applied against the plaintiff’s
expected annual income. In the end, all of these methods seem equally
arbitrary.  [emphasis added]

[225]     As stated
above, this issue is not a calculation of the income that the plaintiff might
lose in the future.  Nevertheless, the parties referred to certain present
value calculations as a starting point, or as illustrations of the magnitude of
the possible claim under certain circumstances.

[226]     The
plaintiff introduced evidence of an accountant, Campbell Stafford, at trial.  His
evidence was based on the assumption that the plaintiff’s income would have
been $40,000-$45,000 in 2005.  Mr. Gibson in his final argument only made
passing reference to Mr. Stafford’s evidence, other than to mention in
reply that Mr. Stafford’s calculation, in his view, underestimated the
loss that the plaintiff will suffer, and Mr. Gibson suggested that Mr. Stafford’s
calculations should be used cautiously.

[227]     Mr. Stafford’s evidence was not particularly illuminating.  Based
on the assumption that the plaintiff was competitively unemployable after the
accident, would not be working any more to the age of 65, and would have had an
income of $40,000-$45,000 in 2009 and a 0.5% or 1% annual real compensation growth
thereafter that his future loss had a present value, according to Mr. Stafford,
in the range of $838,000-$1,011,000. 

[228]     Mr. Gibson
in his submissions at the end of the trial did not rely on Mr. Stafford’s
calculations.  He made submissions that were simply based on a number of present
value calculations based on different scenarios calculated on the basis of lost
income per year for 35 years from age 30-65.

[229]     Using an annual salary of $62,000 with a multiplier of
23.1452 (multiplier for 35 years at a 2.5% discount rate, the rate approved
under the Law and Equity Act, R.S.B.C. 1996, c. 253), the loss of capacity
claim, assuming no residual earning capacity, according to Mr. Gibson would
be $1,382,098.  Mr. Gibson argued that, assuming the plaintiff was able to
earn $10,000 per year working part-time with minimal contract work, which he argued
is the defendant’s best case scenario, this would still leave a present value
loss of $1,159,179. 

[230]     Furthermore, Mr. Gibson argued that the Court should consider positive
contingencies, such as the fact that the plaintiff may have earned much more
than his employment income at RISO at the time of the accident.  He referred to
the evidence of Rade Cvetkovic as an example.  Mr. Gibson argued that Mr. Cvetkovic
was offered a position on the newly developed IT team with RISO, where he would
be travelling from Vancouver to the west coast of the U.S.  He was offered a
salary of $75,000 USD, and was told by the manager that, with bonuses, his
actual salary would likely total $100,000 USD. Mr. Cvetkovic
believed that the plaintiff’s personality made him perfect for the technology
consultant position, as he was qualified and good with people.

[231]     Mr. Gibson argues that, on the basis of the same multiplier of
23.1452, if the plaintiff lost $75,000 per year until age 65, the present value
of that would be approximately $1.735 million.  At $100,000 per year the
present value of the amount of lost income would be $2.341 million. 

[232]     I note for
example that using an income of $32,000, instead of the plaintiff’s examples of
$62,000, $75,000, or $100,000, with the same multiplier of 23.1452, the present
value of that income stream from trial until the plaintiff is 65 would be $740,646.

[233]     I repeat what
I have earlier said that these calculations are only examples of the present
value of lost income over a period of time.  The determination of the loss of
earning capacity is an assessment on all of the evidence.

Will the plaintiff improve?

[234]     The extent
to which the plaintiff will improve or may improve is important to the loss of
earning capacity question, as well as the cost of future care.  There is
evidence that suggests that his conditions may improve.  Since the course of future
events is unknown, allowance must be made for the positive and negative contingencies
upon which the award is based.

[235]     Dr. 
Mazzarella thought that getting closure on this aspect of the plaintiff’s life
would possibly allow him to put his energy and focus into improving his
functional levels and activities.

[236]    
Dr. Anton thought that the prognosis for return to any type of work
was guarded, as even on the best scenario, he would not become pain free.  Dr. Riar
had a more optimistic prognosis but it itself was guarded and he said:

As far as psychiatric disability
is concerned, I believe that at the time of my interview, Mr. Stevanovic
was at least partially disabled due to his chronic pains, as well as protracted
anxiety. As far as his short-term prognosis, I felt that it was guarded and he
would continue to have these symptoms for the next 6 to 8 months, but with
intervention, the functioning can be improved. As far as long-term prognosis
for his anxiety, I feel that it is favorable but he is vulnerable for future
episodes of anxiety and this has to do with his constitutional vulnerability,
rather than any effect of the accident. As far as chronic pains are concerned,
there will be improvement in his symptoms, and his ability to deal with his
chronic pain after the resolution of his anxiety symptoms, and it does not seem
that they will completely leave him for another year or two.

[237]     On the
evidence at trial, I find there is a reasonable prospect the plaintiff will
improve, particularly with his anxiety and sleeping difficulties, which will reduce
his chronic pain and headaches and thereby improve his work capacity over time.

Arguments of the plaintiff and defendants

The plaintiff’s position

[238]     The
plaintiff argues that, given the medical and lay evidence, the plaintiff should
be awarded $1,300,000 as a reasonable assessment of lost earning capacity,
taking into account positive and negative contingencies, the possibility of
some modest residual earning capacity, and the unlikely success of the
plaintiff’s current program at Harbourside securing him gainful employment.

[239]     The
plaintiff’s argument is that he has suffered a substantial loss of earning
capacity, and even the defendant does not suggest he is presently capable of
doing anything other than part-time work.  Before the accident, the plaintiff was
very intelligent, as shown by his top performance in a company-wide
examination, had valuable technical skills, and demonstrated ambition.  His IBS
is a medical condition that pre-existed the accident and, in Mr. Gibson’s
submission, confirms that the plaintiff was essentially a “thin skull”.  The
plaintiff, as a result of his injuries and pain, suffers from chronic insomnia,
leaving him fatigued and moody, and causing significant difficulty completing
assignments.  The plaintiff, in Mr. Gibson’s submission, has an entrenched
anxiety disorder despite regular medical contact with a psychologist and use of
medication as adjusted over time by Dr. Mazzarella.  From the plaintiff’s
perspective, the pain disorder is getting worse and is likely to interfere with
his ability to work at all in the future.  Mr. Gibson argues that Dr. Guy
confirmed that the pain the plaintiff has experienced will increase over time. 
Mr. Gibson submits that if the plaintiff is barely functioning with
extensive support, it is not remotely possible that his ability to work will
improve.

[240]     Mr. Gibson
argues that although a knee injury allows the possibility of sedentary work, the
plaintiff’s increasing pain over time, and little in the way of treatment
options until a total knee replacement when he is aged 50-55, will continue to
interfere with his ability to earn income.  The plaintiff’s ongoing and increasing
pain, which also will continue to contribute to the plaintiff’s fatigue and
cognitive symptoms, will continue to affect his level of anxiety.  His serious
headaches are also likely to continue.

[241]     Mr. Gibson
says there are many caveats that have to be placed on the plaintiff’s potential
for securing successful employment, because he cannot take on greater than
part-time work, work that causes him stress or has significant deadlines, work
that will aggravate knee pain if he has to bend at 30˚ or greater, and work
that involves sitting, standing, possibly driving, walking, running, squatting,
kneeling, crouching, stooping or crawling.  He points to the reluctance of
employers to hire the plaintiff because of cost to their medical plans, his potential
for lateness, and his requirements for accommodation, as employers prefer healthy
people without limitations and productivity issues.

[242]      Although
the plaintiff could not find any authority involving a young person with a
devastating orthopaedic injury, Mr. Gibson argues that, having an eye to
the calculations he referred to in his argument, and based on the principles underlying
the assessment of loss of earning capacity, the award he seeks of $1.3 million,
he says, is a conservative award.

The defendant’s position

[243]     The
defendant’s position is that the assessment of diminished earning capacity does
not provide for arithmetic perfection.  Mr. Deering submits that the realistic
range of damages should be somewhere between $250,000 – $450,000.

[244]     The
defendant says that the medical evidence suggests that the plaintiff, although only
capable of part-time employment now, will improve.  A total knee replacement,
based on Dr. McConkey’s evidence, will not come about until the latter
part of the plaintiff’s working life, at which time it will provide a
disruption of only three to six months.

[245]     Mr. Deering
says the plaintiff has computer skills, has the ability to sit and drive, and,
although restricted, has functional ability in his knee.

[246]     The
defendant submits that it is reasonable to assume that the income the plaintiff
will be capable of making following his retraining will equal or exceed what he
was earning as a technician installing and repairing printers and photocopiers.

[247]     Mr. Deering
says the evidence is that there is marked improvement in the knee and the
muscle mass on the leg that was injured during the accident.  The defendant argues
that the plaintiff’s sleep problems are treatable and the evidence suggests most
people recover.  He suggests that once the litigation is resolved the stress
which leads to the perpetuation of pain will likely be removed.

[248]     Mr. Deering
questions the relevance or appropriateness of the financial present value
calculations advanced by Mr. Gibson, whether through Mr. Stafford’s
evidence or in his argument.   Mr. Deering argues Mr. Stafford’s
evidence should be disregarded, as it was based on the plaintiff not being able
to work and not earning any income from the date of the trial forward.

[249]     The
defendant does not suggest the plaintiff is presently able to work full-time.  Mr. Deering
says it has to be recognized the plaintiff needs to be able to stretch to
relieve his discomfort; however he points out that the plaintiff has been going
to school 20 hours per week and doing homework 10-15 hours per week.  He says
that while some accommodation must be made to allow the plaintiff to stretch to
relieve discomfort, the plaintiff is clearly capable of functioning in a
working environment for 20-30 hours per week.  The defendant recognizes the
plaintiff cannot do heavy work, however he now has additional skills and the
skills to get in the door in the sound industry.

[250]     His
submission is that the plaintiff’s income earning capacity has been diminished by
between 25%-40%.

Assessment of loss of earning capacity

[251]     The
question for me is the assessment of damages for the plaintiff’s loss of
earning capacity as a result of the injuries suffered by the plaintiff in the
accident.

[252]     Again, I
stress that this determination is an assessment, and not a calculation.  I am mindful
that the calculations advanced by counsel in argument are at best only starting
points, or some idea based on certain scenarios of the possible magnitude of
the loss that may have been suffered by the plaintiff.

[253]     The
defendant’s counsel was critical, and for good reason, of the various
calculations that were put forward by the plaintiff.  Mr. Gibson advanced
the present value of $1.3 million which was based on no income until retirement
and on a salary far greater than the plaintiff was making at the time of the
accident.  Similarly, the expert witness called by the plaintiff presented
calculations that showed a total loss of income that was based on a higher
salary than he was earning, and regular salary increases.  Of course, the
plaintiff might have earned substantially more in real dollars over time as he
advanced in a career.

[254]     The
defendant is correct that a precise calculation is neither possible nor the
appropriate way to assess the plaintiff’s loss.

[255]     What is
the impact of the defendant’s negligence that caused the plaintiff’s injuries
on the plaintiff’s earning capacity?  The assessment involves a consideration
of all of the evidence and a consideration of numerous factors, including
positive and negative contingencies.  As noted in Rosvold v. Dunlop, 2001
BCCA 1 at para. 9, real and substantial “[p]robabilities and
possibilities, chances, opportunities and risks must be considered”.

[256]     The
plaintiff was and remains a reasonably intelligent and motivated person, who has
good skills and aptitude for computer use.

[257]     The main
physical injury which impacts on the plaintiff’s earning capacity is his knee
injury.  It was a serious injury.  It required four surgeries.  The major
symptoms in terms of disability and continuing pain, relate to the
patellofemoral articulation.

[258]     The knee
injury prevents the plaintiff from doing work that involves excessive and
repetitive joint loading movements and repetitive knee impact activities.  The
evidence shows that the plaintiff is restricted from carrying heavy weights,
squatting or kneeling.  From a physical capacity perspective, the plaintiff will
be restricted to sedentary work in the future.  Clearly the injury has a
significant impact on the plaintiff’s earning capacity, as it affects many of
the jobs that he might otherwise have been capable of doing.  Given the
existing level of arthritis, Dr. Guy indicated that the plaintiff would
suffer pain in activities where he bends the knee and puts force through it
such as going up and down stairs, getting out of a chair, or crouching,
kneeling or running.  He has been rendered less capable overall to earn income
from all types of employment.

[259]     Specifically,
the injury and its consequences affect his capacity to do the type of work that
he did before the accident as a copier and printer technician.  That is because
the injury prevents the bending and crouching without pain that is required for
that type of work.

[260]     What is
the prognosis for the years ahead?

[261]     There is
some dispute in the evidence whether the plaintiff’s knee condition will
improve or deteriorate in the future.

[262]     The
evidence is that the repair to the plaintiff’s knee was good and the plaintiff’s
right knee has good range of motion.  The evidence indicates that to control
pain in an arthritic knee, it is important to keep the quadriceps muscles
strong and to avoid activities that put too much force through the knee.  The
defendant suggests that it is a positive thing that the plaintiff has undergone
a quadriceps strengthening program that improves the strength of the leg and
its function.  I expect that the plaintiff will continue to train and exercise
to try to maintain optimal knee and leg function, but even with that exercise
program the plaintiff still suffers knee pain and will continue to suffer such
pain.

[263]     The
evidence of the experts indicates that the plaintiff has osteoarthritis in the
patellofemoral joint, which is a post traumatic condition from the accident, and
a chronic progressive condition.  There is, I find, a risk that it will spread
to other areas of the knee.

[264]     Dr. Guy
testified that in the x-rays that he had done there was no osteoarthritic
deterioration in the medial or lateral knee joint, as opposed to the
patellofemoral, which has osteoarthritic changes.  However, he had not seen the
last x-ray that Dr. McConkey had seen.

[265]     Mr. Gibson
argues that an x-ray taken a year after the last surgery indicates loss of
joint space in the medial joint, the weight bearing joint, and the likelihood Mr. Gibson
argues is for deterioration, not improvement in his knee over the next five to
ten years.

[266]      Although
pressed on cross-examination by Mr. Gibson that the recently produced
x-ray indicated narrowing in the medial joint, Dr. McConkey did not agree
that it indicated osteoarthritis in that joint.  However, he did agree that,
although there was no osteoarthritis in the remainder of the joint in the
tibeofemoral articulation, there was a risk it could develop.

[267]     Dr. McConkey
thought there would be gradual improvements in some of the disabilities that
relate to the plaintiff’s knee, and he would be able to improve his strength
minimally.  He made this observation when he saw the plaintiff in early 2009
and thought that he would be improved in the short run following his course of
several operations that lead to dysfunction and muscle weakness. 

[268]     Dr. McConkey
initially took the view that there was no need for a total knee replacement. 
He changed that view because the patellofemoral joint, he said, was the major
concern and major cause for the plaintiff’s discomfort, disability and lack of
function.  He said that the current general medical advice with respect to injuries
of this type to the patellofemoral joint, because other treatments have
variable success, is, in time, a possible total knee replacement for the
plaintiff.

[269]     Dr. McConkey
thought that the plaintiff’s function and discomfort level would be static or
improve over the next ten years, and he did not think that a knee replacement
would occur before the plaintiff turned 55 years old.  Dr. McConkey agreed
that, despite rehabilitating himself from a stamina and strength perspective, if
the plaintiff’s pain plateaued or increased, further improvement might be
unrealistic.  In fact, he thought the plaintiff probably has to abide by the
restrictions on his knee to assist in its longevity.

[270]     Dr. Guy
expects the knee pain that the plaintiff suffers from will increase over the next
twenty years.

[271]     Notwithstanding
efforts to strengthen the leg, I find that it is probable that the plaintiff’s
knee pain will increase over time.

[272]     The
surgical options to limit pain are limited.  Dr. Guy said that the total
knee replacement should be delayed as long as possible, with age 50- 55 being
the lower age limit he would consider.  Dr. McConkey shared that view.

[273]     My
conclusion is that the plaintiff is essentially limited to sedentary work that
does not involve activities that load his knee such as bending, lifting weights
or climbing stairs.  The evidence indicates that, notwithstanding four
surgeries and notwithstanding an active exercise program to maintain the
strength of his leg and limit pain in the knee joint, the plaintiff will
continue to have pain in that joint, largely in the patellofemoral joint.  That
pain will be treated by medication, and the only viable surgical solution will
be a total knee replacement, which both surgeons agree should be put off as
long as possible (until the plaintiff is likely greater than age 50-55).

[274]     The injury
to his knee, and the ongoing pain and restrictions, have substantially
diminished the plaintiff’s earning capacity.  He is less competitive in the job
market.  He is quite restricted in the type of physical work he can perform.

[275]     The more difficult
aspect in this case is the effect of anxiety, headaches, chronic pain, and
sleep issues on the income earning capacity of the plaintiff.  Presently all of
those issues have some impact.  Because of the subjective nature of those
complaints, the credibility of the plaintiff as to whether he suffers from
symptoms of that sort and the degree to which he suffers ongoing pain from his
knee injury is important.

[276]     As I noted
earlier in these reasons, I generally found the plaintiff to be a credible
witness and I generally accept his evidence.

[277]     I accept
that coupled with his physical injuries, the headaches, anxiety, chronic pain
and sleep difficulties will impact on his earning capacity.  However, I think
there is, on the evidence, a realistic prospect that the impact of these
conditions on his ability to earn income will lessen over time.

[278]     A number
of factors suggest that these elements will not have as much impact in the
future as they presently do.  Although there is conflict in the evidence of the
sleep disorder doctors, I find that the plaintiff does not accurately perceive
the amount of sleep that he actually gets.  I expect that further treatment
from the sleep disorder clinic will likely result in further improvement in
this aspect of the plaintiff’s condition, and will improve his earning capacity.

[279]     In terms
of the expert evidence on the issue of anxiety and chronic pain, I found the evidence
of Dr. Anton and Dr. Riar to be of the most assistance.  Dr. Anton
in his report recommended psychological counselling and observed that
psychological factors, including anxiety, play a significant role in the onset
and maintenance of chronic pain.  Dr. Anton agreed that anxiety may be a
common part of chronic pain and that it was treatable, if not curable, and that,
although he prescribes medication for anxiety, he would defer to a psychiatrist
for specific pharmacological treatment in anxiety disorders.

[280]     Dr. Riar
thought that psychiatric intervention was paramount for the plaintiff and that
it will be beneficial for the plaintiff to attend a group treatment program for
anxiety, as well as to have his medication reviewed by a psychiatrist.  Dr. Riar’s
short term view was guarded but thought his functioning could be improved.  He thought
the plaintiff’s long term prognosis for anxiety was favourable, but that he was
vulnerable for future episodes of anxiety due to his constitutional
vulnerability, rather than any effect of the accident.  He did not think the
plaintiff’s anxiety symptoms would leave him for another year or two.  As Dr.
Riar put it in his report, there will be improvement in the plaintiff’s
symptoms of chronic pain and his ability to deal with chronic pain after
resolution of his anxiety symptoms.  Dr. Riar did not think the plaintiff’s prognosis
for improvement depended on improvement in his underlying headaches and right
knee pain, as he said that the plaintiff’s headaches were more in keeping with
his emotional issues.  In terms of his anxiety, he said that if his knee
deteriorates and the pain increases, that is the pain disorder but if his
anxiety gets better he is able to deal with the pain better, or as he put it,
lessen it. Dr. Riar thought relieving his anxiety disorder will improve
the plaintiff’s headaches.

[281]     I
appreciate that the plaintiff has had psychiatric assistance and tried
different medications with the assistance of Dr. Mazzarella and
Dr. Raina, and received counselling from Dr. Cheung, but,
notwithstanding Dr. Mazzarella’s caution, I think that with the guidance
of a psychiatrist, group treatment, and adjusting medication in consultation
with a psychiatrist, improvement will probably be made as noted by Dr. Riar.

[282]     I also expect,
as Dr. Mazzarella does, that the plaintiff’s compounding anxiety will
lessen once this litigation is concluded.

[283]     The plaintiff
has IBS, but that is a condition that pre-dated the accident.  Although
troublesome for the plaintiff, he was able to make up for lost time due to IBS by
working overtime.

[284]     In any
event, the defendant must take the plaintiff the way he found him.  The
question is the extent to which the plaintiff’s pre-accident income earning
capacity was affected by the accident.

[285]     I have
taken into consideration the evidence of the two vocational consultants who had
different opinions on the employability of the plaintiff.  I have set that out
above.  Both opinions are entitled to weight.  A significant difference between
them is that while Mr. Lawless thought that there were jobs the plaintiff
was otherwise capable of doing, given his intellectual abilities and skills, there
were no occupations that would not be seriously affected by
either his physical, cognitive or emotional issues. 

[286]     Mr. Hohmann, who did not see the plaintiff nor interview him,
differed with Mr. Lawless in believing that most employers could
accommodate a person who has to have a knee partially or fully extended, that
with successful treatment the cognitive limitations may be removed with a
corresponding positive impact on his cognitive functions, and that he is
motivated and actively demonstrating his ability by the course at Harbourside. 
He thought the test results show high intellectual functioning and that the plaintiff
might want to consider his own recording studio, the business management side
of the music industry and computer programming and website design. 

[287]     I think the plaintiff’s progress at the classes he has taken at
Harbourside is some measure of his capacity to do work, at least on a part-time
basis.  I expect many employers will provide an employee the ability to stretch
his leg and walk around.  However, the program that the plaintiff took at
Harbourside does not suggest many jobs that he could easily do: most jobs in
sound engineering start with live performance work that is much heavier than he
able to do, and the prospect of the plaintiff opening his own studio is
unrealistic and counter to the trends of the music industry.  The suggestion
that the plaintiff could go into business for himself also appears inconsistent
with the plaintiff’s personality. 

[288]     It should be kept in mind that although Mr. Lawless thought
that the plaintiff was competitively unemployable, even Mr. Hohmann said that
the plaintiff has “significant limitations affecting his vocational aspects,
but that he has some potential for employment”.  Mr. Hohmann thought that
whether he could advance beyond part-time would depend on the treatment
outcome.  While I found Mr. Lawless to be overly negative on the
plaintiff’s employability, given the plaintiff’s intelligence and skills, and as
I expect many employers will be reasonably accommodating, I found Mr. Hohmann’s
view of what the plaintiff is able to do to be overly optimistic.  Given the
plaintiff’s skills, his demonstrated work at school, and his determination, I
think that he presently has some capacity to do part-time work and I expect
that capacity, particularly given his intelligence and computer skills, will
improve to some degree when the trial is over, particularly with treatment.

[289]     I also should take into consideration that, in terms of impaired earning
capacity of the plaintiff, it appears likely that at some point (perhaps at age
50-60), the plaintiff will have a total knee replacement, and there will be a
disruption in his work life of upwards to six months. 

[290]     Counsel
for the plaintiff points out that in assessing the loss, the plaintiff should
not be compensated on the basis that he had capacity only to work as a copier
repairer.  Of course, it is true that the assessment of his loss is the extent to
which his capacity to do earn employment from all sources is affected.  At the
time of the accident, the plaintiff was a young man who was capable of pursuing
different careers, as well as more promising prospects at RISO.  Some of the
possibilities for a person of the plaintiff’s technical skills were described by
Mr. Cvetkovic and in Mr. Matushewski’s evidence.  Mr. Matushewski is
currently the Western Regional Sales Manager for RISO.

[291]     The
assessment of the impaired earning capacity is the effect it has on his ability
to pursue opportunities in all fields of endeavour.  Although the plaintiff may
have earned just under $2,500 per month, as well as a car allowance of $450 per
month at the time of the accident, without the accident his intelligence and
aptitude permitted other jobs to realistically be on the horizon for him.  The
defendant points out that the plaintiff was unhappy with the level of pay at RISO,
but this is really an argument that the plaintiff would not have simply earned
the income stream from lifelong employment at RISO.  He may have gone elsewhere
and earned more, or less.  As I indicated earlier, the various scenarios that
the parties set out are no more than possible starting points.  Each had flaws,
and they do not provide an answer.  However, they provide useful information
based on certain assumptions.

[292]     The
question is the assessment of damages for the significant impairment of the
plaintiff’s income earning capacity.  In my assessment, I take into
consideration my expectation there will be some improvement in his condition in
the future in terms of sleep, headaches and anxiety, and in the result its effect
on his chronic pain, and his ability to function in the workplace.

[293]     Taking
into account all of the evidence, remembering this is an assessment and not a
calculation, being mindful of the applicable law, taking account positive and
negative considerations, and making an award that is fair to both sides, I
award the plaintiff for loss of earning capacity the sum of $600,000.

(b)      COST OF FUTURE CARE

[294]     There is
really no dispute about the law concerning the award of cost of future care,
notwithstanding the parties’ vast disagreement on the quantum of the award.

[295]    
In Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.),
McLachlin J., as she then was, said, at p. 78:

The primary emphasis in assessing
damages for a serious injury is provision of adequate future care.  The award
for future care is based on what is reasonably necessary on the medical
evidence to promote the mental and physical health of the plaintiff.

[296]     Although
it has been said that the test in Milina means that the care must relate
to the health needs and not simply the enjoyment of life of the plaintiff, the
fact that costs be medically justified does not require that a medical doctor
provide evidence of the specific care that the plaintiff requires.  It may be
provided by a rehabilitation expert.  The weight to be given to the
recommendation depends on the expertise of the person recommending it: Jacobsen
v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63 (S.C.) at para 182.

[297]    
In Izony v. Weidlich, 2006 BCSC 1315, Masuhara J. observed:

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

Damages for cost of future care are a matter of prediction.
No one knows the future. Yet the rule that damages must be assessed once and
for all at the time of trial (subject to modification on appeal) requires
courts to peer into the future and fix the damages for future care as best they
can. In doing so, courts rely on the evidence as to what care is likely to be
in the injured person’s best interest. Then they calculate the present cost of
providing that care and may make an adjustment for the contingency that the
future may differ from what the evidence at trial indicates.

(Krangle (Guardian ad litem of) v. Brisco, [2002] 1 S.C.R.
205, 2002 SCC 9 at para. 21.)

…

[74]      I agree that future
care costs must be justified as reasonable both in the sense of being medically
required and in the sense of being expenses that the plaintiff will, on the
evidence, be likely to incur (see generally Krangle).  I therefore do
not think it appropriate to make provision for items or services that the
plaintiff has not used in the past (see Courdin at para. 35), or for
items or services that it is unlikely he will use in the future.

[298]    
As noted by D.M. Smith J., as she then was, in Bystedt (Guardian ad
litem of) v. Hay, 2001 BCSC 1735 at para. 162:

The test for an award of future
care is "whether a reasonably-minded person of ample means would be ready
to incur the expense.  When measuring reasonableness, the expense should not be
a squandering of money"….

She went on to say, at para. 163, that the award
must be “based on an objective test of what is moderate and fair to both
parties”.

[299]     The
plaintiff called a registered nurse, Janet Landy, an expert in rehabilitation
nursing and life care planning, to provide a review of the items of care that
the plaintiff, in her opinion, needs through his lifetime.  The plaintiff also
introduced the report of Mr. Darren Benning, to assist in the
quantification of the pecuniary damages.  Mr. Benning is the president of
a consulting economics firm that provides litigation support for these sorts of
claims.

[300]     The
defendants called Laura Smith to review the report of Ms. Landy, and to
provide her opinion on Ms. Landy’s recommendations.  Ms. Smith is a
certified life care planner and a qualified rehabilitation professional with a
degree in medical rehabilitation, as well as being registered to practice as an
occupational therapist.  Ms. Smith gave her evidence by way of video
deposition.  The defendant also introduced the report of Mark Szekely, a
consulting economist who provided certain present value calculations in
connection with the plaintiff’s cost of future care claim.

Plaintiff’s Position

[301]    
Ms. Landy recommended the following (I have marked with an asterisk
the care items that are not disputed by the defendant):

(a)        a one-to-one rehabilitation support worker for 48
weeks each year (20 hours per week);

(b)*      25-30 hours annually for physiotherapy consultation
for ongoing hands-on assessment and evaluation and indirect training and
supervision of the rehabilitation support worker/kinesiologist to follow
through with a prescribed physiotherapy program;

(c)        massage therapy for 2 hours per week for 48 weeks;

(d)*      cost of prescription medication, i.e. Gabapentin
300 mg at a monthly cost of $64.82;

(e)*      psychological consultation for an hour every two
weeks, decreasing in years 2 and 3 and further decreasing in year 4;

(f)*       vocational consultation for $10,000 – $15,000 plus
GST based on 100-150 hours at an hourly rate of $100 per hour;

(g)*      occupational therapy consultation – 24 hours, or 2
hours monthly;

(h)*      ongoing medical consultations – as this is provided
through the Medical Services Plan of B.C., no costs are projected by the
plaintiff;

(i)         activities of daily living:

i.*         knee brace replaced
every 5 years – annual cost between $220-$251.20;

ii.*        wall mounted grab bars
– $110-$125 plus GST and PST;

iii.         bath assist to avoid
slipping – annual cost $240-$280;

iv.        mobilization device or
scooter for travelling longer distances and recommended for future purchase
10-15 years post-injury – annual cost $562.50-$750, including batteries,
commencing year to $400;

v.         contingency funding for
installation of a stair glide system should the plaintiff reside in a two
storey home – $6,00-$7,500 with no anticipated replacement, annual maintenance
cost $500;

(j)         contingency funding for purchase of external
rear-mounted scooter to back of car – $2,200 plus taxes, replacement
recommended every 8-10 years;

(k)        interior home maintenance for light cleaning,
given the plaintiff’s restriction in repetitive motion (kneeling bending
stooping crouching climbing) based on an hourly rate of $29-$32 plus taxes, the
recommendation is including covering the holiday time between $6,032-$6,056 per
annum;

(l)         exterior home maintenance, contingency funding
for window washing, lawn maintenance, snow removal, etc.  This is presented by
the plaintiff’s expert at Lawn Maintenance Etc. of four hours monthly at an
hourly rate of $35 totalling annually $1,680, and for handyman tasks 2 hours
monthly $600 per annum at $25 per hour;

(m)       funding is recommended
for professional financial management services to be addressed by an economic
consultant.

[302]     The
plaintiff’s expert, Mr. Benning, used a multiplier of 23.036 pursuant to
the regulations under the Law and Equity Act to determine the present
value of the care costs.  He assumed a normal life expectancy for the
plaintiff.  His total of the present value of the future care expenses
applicable to the plaintiff was $1,797,567.  Some of the more significant expenses,
based on Ms. Landy’s recommendations, were: the one-to-one rehabilitation
support worker which at $50,400 per annum, including taxes, had a present value
of $1,161,036; the massage therapist at an annual cost of $7,680 was $176,920;
the occupational therapy consultant at an annual cost of $2,520 had a present
value of $58,052; interior home maintenance at an annual cost of $6,661 had a
present value of $148,918; and exterior home maintenance with an annual cost of
$2,394 had a present value of $53,520.  The last two home maintenance items
were calculated to age 80.

[303]     The
plaintiff’s counsel said in argument that the costs claimed were reasonable and
that, even if the plaintiff utilizes only ten hours of rehabilitation
assistance support per week into the distant future, the present value of rehabilitation
support at cost would be $580,518.  Mr. Gibson says that ten hours per
week is only half of what Ms. Landy recommended and, given the medical
evidence that has developed since the reports were provided to Ms. Landy
about the need for assistance from a trained kinesiologist, as well as the
risks for emotional and psychological deterioration, he argues the chances are
that the plaintiff will need more support.  Mr. Gibson says that taking into
account the reduced rehabilitation assistance (from twenty hours per week down
to ten), the fact that childcare expenses have not been considered, and the
fact that a pain clinic and other medications have not been considered, the sum
of $1.3 million for cost of future care is overall a reasonable assessment of the
cost of future care.

Defendant’s Position

[304]     Ms. Smith
disagreed with Ms. Landy’s recommendation for one-to-one rehabilitation
support over the plaintiff’s lifetime.  She reviewed Dr. Hartzell’s and
Ms. Lintott’s report, and recommended a level of independence in
self-directed activity that does not warrant the need for one-to-one support
worker.

[305]     Insofar as
Ms. Landy’s recommendation for 25-30 hours of physiotherapy intervention annually
for his life, Ms. Smith recommended that over his life he may require 24 hours
per year and agrees with this recommendation, as well as funding for a yearly
fitness pass.  Ms. Smith disputed the need for a massage therapist, other
than for intermittent attendance, but agreed with the medication requirements. 
In terms of the psychological counselling, she said that required certain
clarification, however the defendant in its recommended amount was prepared to
provide for psychological counselling.  She noted that the funding proposed by Ms. Landy
of 100-150 hours for vocational counselling or 8-12.5 hours per month over a twelve
year period, or 4-6 hours over a two year period, may or may not be required
depending on the plaintiff’s success in his audio engineering program.  This
amount, however, is not disputed by the defendant.

[306]     In terms
of the remaining recommendations, Ms. Smith agreed with the recommendation
for ongoing rehabilitation case management, the knee brace recommended by Dr. McConkey,
and the recommendation for wall mounted bars.  She disagreed with the bath
assist device, the recommendation for the scooter or a scooter lift, and the
stair glide system.  In terms of internal household assistance, Ms. Smith argued
that a more appropriate rate was $20 per hour for four hours, and not the cost
Ms. Landy set out of four hours at a cost of $29-$32.  The handyman cost or
extended home maintenance cost is, in Ms. Smith’s view, only a potential
cost.  She disagreed with the recommendation that the plaintiff needs
assistance with financial management.

[307]     Depending
on whether exterior house maintenance was included, Mr. Deering’s
submission was that the present value of the future case costs, as determined
by Mr. Szekley, that were reasonable, would be between $228,428 and
$281,949.

[308]     Accordingly,
the defendant’s position was that $250,000 was the appropriate award for the
cost of future care.

Discussion

[309]    
Where does the dispute about cost of future care lie?  Apart from the
items that the plaintiff said should have been included but were not, the main
items in dispute appear on the chart below.  I have inserted the present value
amounts claimed by the plaintiff, and the amounts agreed with by the defendant:

[310]     I assess
the cost of future care claims as follows.

Rehabilitation Support Worker

[311]     The most
significant claim for cost of future care and the one most in dispute is the provision
of a one-to-one rehabilitation support worker or a kinesiologist.  The theory
behind the claim at twenty hours per week (or even at ten hours per week) is
that in order to prevent deterioration of the knee and resulting pain and
psychological overlay there is a need for ongoing regular intervention to
protect the health of the plaintiff’s knee and prevent deterioration.  The
defendant disputes the necessity for a one-to-one rehabilitation support worker
(item A) at all.

[312]     The
defendant does, however agree that there should be a regular consultation of
25-30 hours of physiotherapy intervention per year with a physiotherapist at an
annual cost of $2,200 with a present value of $50,680 and a yearly pass to a community
based fitness facility at $17,416.  In other words, the defendant argues that,
given the support available in item B above, item A is unnecessary.

[313]     I note
that the defendant agrees with Ms. Landy’s recommendation at item G for a
rehabilitation case management which the plaintiff says is for “rehabilitation
service intervention to provide a consistent level of continual monitoring, organizational
and planning support as well as functional assistance in the activities of
daily life”.

[314]     Ms. Landy
says the question of twenty hours, or even ten hours per week of a
rehabilitation support worker is “to ensure follow through with a prescribed
program of physical conditioning and activation, a consistent level of
monitoring of emotional status and to provide structure for the day”.  The
plaintiff’s argument came down to the need to have a rehabilitation aide work
with the plaintiff to ensure that he properly exercises to maintain his leg
strength and not damage his knee in order that further damage to the knee and
pain can be lessened and future chronic pain avoided.

[315]     The
plaintiff says that the defendant’s approach is contrary to the law on the cost
of future care and is asking that the plaintiff fend for himself.  The
plaintiff relies on the evidence of Dr. Anton that the plaintiff should
exercise firstly to maintain the function of the knee, secondly to possibly
slow the development of arthritis and thirdly because of the psychological
benefit of exercise.  The plaintiff points to the importance of certain
stretches to help maintain the knee’s function as long as possible, which requires
some require expert assistance.  Ms. Landy said that the goal is to
maintain consistency and the correct technique.  Her plan was for the
physiotherapist to design the program and the kinesiologist or rehabilitation
worker to ensure the follow through.  Mr. Gibson points out that the
doctors agreed that proper stretching and an exercise program is a good idea.

[316]     The
witnesses called by the defendant, Laura Smith and Wendy Lintott, challenged
this claim.

[317]     The
defendant does not dispute the need for a proper exercise regime, but says that
the future costs of a physiotherapist and a membership in a fitness centre are
what is reasonable in the circumstances.  With that assistance, the defendant
argues that the plaintiff is capable of exercising on his own.  Dr. Hartzell,
an occupation health physician called by the plaintiff, suggested a
physiotherapist with a psychologist skilled in self directed pain management
techniques and an exercise therapist for three months, to be followed by a
maintenance program with periodic supervision by a kinesiologist.

[318]     I do not
find the plaintiff’s claim to be reasonable at ten or twenty hours per week. 
The plaintiff, under the guidance of the physiotherapist, with some assistance
from a trainer at the outset, will be able to maintain on his own a safe and
healthy exercise regime to maximize the strength of the knee and not damage
it.

[319]     I think
that the evidence shows that some support from a trainer or rehabilitation
worker (in addition to regular physiotherapy consultation and a gym membership)
is useful for the plaintiff’s health in that it allows him to strengthen his
leg and knee, preventing further injury by exercising incorrectly, and
providing assistance to do exercises that the plaintiff cannot do on his own.

[320]     As Dr.
Anton noted, “you need to do the right exercise and the right techniques, and
generally, at least initially, it is appropriate to have it supervised by a physiotherapist
or a kinesiologist to make sure your technique is correct”.

[321]     I find
that some initial support should be provided for the plaintiff.  Given his
ability to exercise and follow directions, I find that one hour of a trainer or
rehabilitation worker per week for three years, and twenty hours therefore at
other times, is what is justified and appropriate on the evidence.

[322]     Accordingly,
I would allow for Item A, at an approximate cost of $60.00 per hour, the sum of
$20,000.

Massage therapy

[323]     The next
item in dispute is massage therapy for which over the plaintiff’s life at an
annual cost of $7,680, he claims the sum of $176,920.  The defendant says that
no award should be made under this head.

[324]     Ms. Landy
testified that, in consultation with Danica Crawford, she recommended massage
therapy two or three times per week, which results in the amount claimed.  She
said that the plaintiff found that the massage therapy he has been having has
been beneficial.  The plaintiff’s counsel pointed to the evidence of the
plaintiff that the massage therapy relieves neck tension, improves his
headaches and that the therapy is for his neck, right hip, both knees, his
lower back and sometimes his arms.

[325]     Mr. Deering
argued that there was no medical basis in the evidence for this claim.  Ms. Landy
agreed that none of his doctors had recommended massage, nor did she speak to
them about it.  This recommendation was based on the view of the plaintiff’s
present massage therapist.  There was no report from the massage therapist
explaining the basis for this recommendation.

[326]     Laura
Smith, the occupational therapist, said she was unable to find any
recommendation in the reports from any doctors for massage therapy, and pointed
out there was no report from any massage therapist.

[327]     I did not
see the required medical support in the evidence for this item as a cost of
future care to promote the health needs of the plaintiff.

[328]     The other
areas of controversy between the parties were under the general categories of
activities of daily living and home maintenance.   These appear in items I (3,
4, 5, 6, and 7), J, and K above.

Bath assist device

[329]      The bath
assist device that was recommended by Ms Landy, is a portable device that
allows a person to use a bath by essentially being lowered into the bath
without putting weight on his right leg.  It is portable and needs to be
replaced every five years.

[330]     Ms. Smith
said that he was not having difficulty bathing on a daily basis and there was
no recommendation that it was needed for safety.

[331]     I think
there is medical justification shown for this expense, but only some prospect
for its need in the future.  On the basis that there is a realistic possibility
that this cost will be incurred, I allow $4,000 for this cost.

Mobilization device and maintenance

[332]     The
plaintiff claims a mobilization device for travelling over longer distances, to
be purchased 10-15 years post injury and replaced every 8-9 years.  The purchase
costs has a present value of $13,816 with an annual cost of maintenance having
a present value of $5,764.

[333]     This
device does not appear to have been recommended by Dr. Anton or any other
doctor.  The argument appears to be that it would be useful after a total knee
replacement, when that is necessary, or if the plaintiff felt comfortable using
it for long distances if his knee deteriorates.

[334]     I do not
find that this cost meets the test for cost of future care as being medically
required, or that it would be used by the plaintiff.  As such, the scooter maintenance
and the scooter carrier also are not allowed.

Stair glide system and maintenance for stair glide system

[335]     It was
recommended by Ms. Landy that he receive a sum for a stair glide system in
the event that he purchases a two-level home.  The cost is a one-time amount of
$5,764 plus maintenance after the first year with a present value of $7,560.

[336]     The
defendant opposes this largely, it appears, because there is no recommendation
for it from a doctor and because the plaintiff lives in a one story apartment
and will likely purchase a home, if he does, that is on one level.  This is a
cost that the plaintiff may incur in the future.  I expect that the plaintiff
will attempt to reside in a one-story residence whether he rents or purchases,
but he may end up residing in a multi-level dwelling, where this device could
be of assistance to maintain the health of his knee.

[337]     I find
that this is a reasonable cost of future care, and based on the reasonable
possibility of the costs being incurred, I would allow the sum of $1,500.

Interior home maintenance

[338]     The
plaintiff claims the annual cost of interior home maintenance of $6,661 up to
age 80 for a present value of $148,918.  Ms. Landy, because of the
plaintiff’s restrictions from kneeling, bending, stooping and crouching,
recommended four hours per week at a rate of $29-$32 plus HST.

[339]     Dr. Anton
noted the household tasks with which the plaintiff would have difficulty
included washing floors, cleaning the bathtub, and taking laundry up and down
stairs.

[340]     The
defendant, by his witness Ms. Smith, said that an hourly rate of $20 was
more realistic – between $15 and $25 – and recommended one hour per week, or
two hours every two weeks, for a annual cost of $960 and a present value
calculation of $22,535.  Ms. Lintott said and appropriate range for the cost
of this service was $15-$28 per hour.

[341]     I find
that for the household tasks which the plaintiff is unable to do, two hours
every two weeks is reasonable, and, considering the evidence about the variable
rates for a housekeeper, I would allow the sum of $25,000.

Exterior Home Maintenance

[342]     The
plaintiff claims the annual sum of $2,394 with a present value of $53,520 for
exterior home maintenance.  Ms. Landy explained that it was the
plaintiff’s goal to own a home and that all the heavier tasks of exterior home
maintenance will not be possible as he ages.  The defendant does not dispute
the quantum but disputes whether it should be awarded at all.  Ms. Landy
agreed that if he purchased a strata unit that exterior maintenance would be
handled by the strata corporation.

[343]     This is a
cost that may never be incurred by the plaintiff.  As noted, I expect he will
try to avoid living in accommodation that presents extra challenges to his
knee.  It is a realistic possibility he will incur this cost.  In assessing the
possibility, I allow the plaintiff the sum of $20,000.

Conclusion of the Cost of Future Care

[344]     Accordingly,
for the reasons I have set out above, I assess the cost of future care at the
sum of $275,000.

(c) MITIGATION

[345]    
The defendant advances an argument that the plaintiff’s damages should
be reduced because he had failed to mitigate his damages.  Mr. Deering put
it this way in his written argument:

Despite the clear advice from Dr
Riar, Dr. Bishop and Dr Anton that the plaintiff would benefit from
psychiatric treatment, the plaintiff has chosen to ignore this recommendation. 
The decision delayed, hindered and perhaps exacerbated the plaintiff’s anxiety.

[346]     There is
no dispute that the plaintiff had a duty to act reasonably to mitigate his loss. 
The burden is on the defendant on this issue.  The defendant’s counsel acknowledges
that he must prove not only that the plaintiff failed to follow recommended
medical treatment but that if he had followed it, it probably would have been
effective.

[347]     The defendant
seeks a reduction of 25% but candidly told me the authorities indicate a 10% reduction
at the most.

[348]     The
defendant said that the plaintiff’s anxiety was a pre-existing problem, and it
precipitates chronic pain and sleep problems.  The defendant argues that treating
the anxiety will lead to a partial or full recover of the symptoms of chronic
pain and sleep disorder.  Mr. Deering said that proper treatment for the
plaintiff requires medication prescribed by a psychiatrist as well as cognitive
therapy.

[349]     The defendant
said that the plaintiff will be provided cost of future care for counselling
and psychiatric care, which is critical, but Mr. Deering says that the plaintiff’s
failure to mitigate was in not seeking psychiatric assistance since 2006.

[350]     Counsel
for the plaintiff says that the mitigation defence is simply not made out on
the evidence.  Mr Gibson argues that the plaintiff clearly
followed his family physician’s advice and medication suggestions, and there is
no evidence at all that there were specific medications that would have altered
the plaintiff’s course of health.  Mr. Gibson said that over the period
since the accident, the plaintiff has been on over 15 different medications.  He
sought extensive psychological counseling, and there was no specific direction
that he attend another psychiatrist.  Mr. Gibson pointed out that the pain
clinic the plaintiff attended did not consider any psychiatric intervention to
be necessary.  Mr. Gibson points out that the occupational therapist
retained by the defendant to assist the plaintiff did not recommend psychiatric
intervention.  Mr. Gibson argues that the plaintiff has tried medication,
physiotherapy, counseling, and numerous ways to aid his recovery.

[351]     I find that the defendant has not proven that the plaintiff failed
to mitigate his damages.  The plaintiff followed a course of treatment directed
by his general practitioner, upon whom he attended regularly.  That included a
course of medication that was prescribed for him by his doctor and by a psychiatrist
whom he saw for a time.  The plaintiff did not ignore Dr. Riar’s
recommendation, but appears to have considered it carefully and on reasonable
grounds, with Dr. Mazzarella’s concurrence, did not then follow it.

[352]     In all the circumstances, the defendant has not proven the plaintiff
failed to act reasonably in mitigating his damages. 

CONCLUSION

[353]     There will
be judgment in favour of the plaintiff in accordance with these reasons.  The
parties have liberty to speak to the quantum of costs.

_____________________________________
The Honourable Mr. Justice J.S. Sigurdson