IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110328

Docket: M100153

Registry:
Vancouver

Between:

John
Ernest Manson

Plaintiff

And:

Indraj
Kalar

Defendant

Before: The Honourable Madam
Justice Boyd

Reasons for Judgment

Introduction:

[1]            
This is a claim for damages for personal injuries arising from a motor
vehicle accident which occurred on April 1, 2008 when the plaintiff’s
vehicle was rear-ended by a vehicle owned and driven by the defendant.  Liability
has been admitted.  The trial was limited to an assessment of damages.

Background Facts:

[2]            
The plaintiff is 55 years of age and was just short of 53 years of age
when the accident occurred on April 1, 2008.  On that date he was driving
a friend’s large Ford F150 truck with a super cab—that is a one-half ton pickup
truck with an extended cab—in “stop and go” traffic, merging with other traffic
onto the Alex Fraser Bridge.  While his vehicle was stopped it was rear-ended
by the defendant’s vehicle.  Immediately prior to the impact he heard no
squealing of brakes and had no opportunity to brace himself.  While he had his
foot on the brake, the force of the impact was sufficient to move the truck
forward.  While he was wearing a seatbelt, he was still thrown forwards and
then backwards in his seat, striking his head against the headrest in the backward
movement.  He believes that the force of the seatbelt restraint left some
bruising on his chest.  He did not lose consciousness.  While he was shocked by
the collision he and the defendant managed to pull their vehicles to the side
of the road where they exchanged the necessary information.  Damage to the
plaintiff’s vehicle exceeded $5000 in value.

[3]            
A few days later, on April 4, 2008, the plaintiff attended the
Nordel Crossing Medical Clinic and was examined by a Dr. William Tardos. 
The plaintiff had no family physician of his own and various friends had
recommended he consult with Dr. Peach at that clinic.  However Dr. Peach
was not available on this first appointment and accordingly, he was seen by Dr. Tardos.

[4]            
Dr. Tardos noted the plaintiff’s complaints of tenderness and pain
in the upper back, lower back and the soft tissues on either side of his neck. 
He diagnosed his condition as a soft tissue strain to the neck, back and chest
wall.  He prescribed muscle relaxants and analgesics.

[5]            
Dr. Peach first saw the plaintiff just over a month later, on May 12,
2008.  He noted the plaintiff’s complaints of morning stiffness, particularly
in the lower back, as well as an almost constant stiffness and soreness of the
neck.  Dr. Tardos diagnosed a paralumbar strain and paracervical strain
and referred him to a clinic for physiotherapy.

[6]            
Between May 26, 2008 and June 27, 2008, the plaintiff attended
six physiotherapy treatments.  However in early July 2008, he discontinued
treatment since his wife had become seriously ill with pneumonia.  She was
admitted to hospital where her condition deteriorated rapidly, leading to her
death eleven days later on July 27, 2008.

[7]            
Sometime later in 2008 the plaintiff’s elderly mother also died.  He
spent some time organizing the funeral and attending to the winding up of his
late mother’s estate.

[8]            
It was not until January 27, 2009 that the plaintiff returned to
visit Dr. Peach, almost eight months after his last visit.  He reported
continuing complaints of pain in his lower back as well as stiffness in the
neck.  He complained of intermittent muscle spasms in his neck and low back
region.  Dr. Peach found a “good preserved “range of motion of the
lumbosacral spine, some tenderness of the paralumbar muscles, but no tenderness
of the central lumbosacral spine.  Range of motion of the neck was full, with
the exception of some slight decreased range of motion on the left side of the
neck.  He recommended that the plaintiff continue with physiotherapy treatments
and continue to follow a conservative therapy program.

[9]            
Within less than a week, the plaintiff returned to Dr. Peach on
February 3, 2009, continuing to complain of ongoing neck and back pain. 
While there was a diminished neck rotation to the right side, he otherwise
displayed a full range of motion.  Dr. Peach diagnosed his condition as an
ongoing paracervical strain and paralumbar strain.  He once again referred the
plaintiff to a physiotherapist, this time recommending a sports physiotherapy
clinic.

[10]        
His final assessment of the plaintiff occurred on September 10,
2009, approximately six months before trial.  He noted the plaintiff continued
to complain of low back pain on a regular basis.  Indeed the plaintiff
complained that he suffered some level of discomfort “all of the time”.  While
he displayed a full range of motion of the lumbosacral spine, his neck rotation
was somewhat limited in both directions.  He diagnosed him as having sustained
a back and neck strain secondary to the injuries sustained in the accident.

[11]        
On that date, Dr. Peach ordered x-rays of the cervical and lumbar
spine.  The cervical spine x-ray showed that the disc spaces were well
maintained and that there is a very slight anterior lipping of the inferior
margin of C6.  As to the lumbar spine, there is slight degenerative lipping at
L5.  The L5-S1 disc space is slightly narrowed.  The remained discs are normal. 
Dr. Peach concluded the degenerative changes shown in the neck and spine
were most likely incidental findings, which changes could not be related to the
motor vehicle accident or could be said to have been exacerbated by the
injuries suffered in the accident.  In his view the x-ray findings were normal
and in keeping with what one would expect to find in the case of a 55-year-old
patient.

[12]        
In his report dated October 17, 2010, Dr. Peach opines:

…it would seem reasonable that he may have a period of
total disability lasting anywhere from four to eight weeks followed by a period
of partial disability which typically last anywhere from eight but up to as
many as twenty-six weeks.  This is quite a broad variable period for partial
disability and that is because, when it comes to neck and back pain problems
following a motor vehicle accident, it is very difficult to predict a period of
time for which a person will endure a partial disability.  In fact, I could
argue that he continues to have a partial disability with respect to his back
and neck pain issues.  He is not totally disabled, and he continues to work
despite his ongoing neck and back pain issues.

However he does have significant ongoing pain to his neck and
back and this would certainly limit him from doing any labour intensive type
work if this were part of his job description.

It is reasonable to assume that Mr. Manson
will continue to suffer with at least some mild to moderate degree of neck and
back pain on a recurrent basis for the foreseeable future.

[13]        
At trial Dr. Peach testified that so far as the plaintiff’s
prognosis was concerned, he would adopt the medical “party line”—that is that
generally speaking one would expect the plaintiff’s symptoms to improve over
time; but conversely, given the amount of time which has elapsed with
continuing symptomology, it was more likely that he would continue to suffer
some level of discomfort for another 2-4 years.

[14]        
The defence noted that the plaintiff stands 5’9” tall and weighs 195
lbs.  Dr. Peach agreed that he was “slightly overweight” and that it would
be helpful to his overall health if he lost some weight.  While the excess
weight likely exacerbates his mid and low back pain, he rejected the suggestion
that the weight itself caused the pain.  He agreed that had the plaintiff
followed his recommendation of pursuing sports physiotherapy and engaging a
personal trainer to structure a fitness program, some weight loss might have
resulted.  While that in turn may have improved the plaintiff’s core muscle
strength and his overall functional level, he rejected the notion that his pain
level would necessarily have also been reduced.

Non Pecuniary Damages:

[15]        
The plaintiff submits that he has suffered a cervical and paralumbar
strain which has left him with ongoing pain of the upper back and neck, but
most particularly the low back for a period of almost three years, which has
not resolved to the present date.  While he has also suffered headaches from
time to time since the accident, he admitted that he had likely not raised this
complaint with Dr. Peach.

[16]        
By way of ongoing treatment, he has not pursued any further
physiotherapy treatments since he discontinued attending the Sun God
Physiotherapy Clinic in June 2008.  Nor has he undertaken any other
treatment, including chiropractic, acupuncture, or massage therapy.  He has not
joined a gym nor has he pursued a program with a personal trainer.  His single
self-treatment is his own stretching routine in which he attempts to duplicate
some of the stretching exercises which his physiotherapist taught him, using a
rubber resistance band.  He tries to perform these exercises at home 3-4 times
a day, with some relief.  Occasionally, at home, he also applies hot or cold
packs to those areas where he is suffering pain.

[17]        
In terms of his loss of amenities and enjoyment of life, he complains
that the accident has had a substantial effect on his overall lifestyle.

[18]        
In his youth, the plaintiff played a wide variety of sports but in his
middle age, he restricted himself to golf, skiing and fishing.  Prior to the
accident, he was a talented and enthusiastic golfer who boasted a 5 handicap and
enjoyed regular rounds of golf.  Over ten years ago he participated in
competitive golf with the BC Amateur Golf Tour.  Prior to the accident he
said that he had suffered what he believed to be a rotator cuff tear of the
right shoulder.  Relying on the recommendation of some friends, he took a
nutritional supplement which “fixed” his shoulder in 60 days.  Prior to the
accident, he says that he would take that supplement as well as Ibuprofen before
or during a game of golf, and was able to play without difficulty.

[19]        
However since the accident, he complains that he has not golfed very
much, largely due to the pain in his neck and back pain.  Since he can no
longer windup and rotate his torso adequately, he lacks the power to execute
any significant golf swing and as a result, he cannot hit the ball as far.  While
he has continued to golf from time to time when his friends invite him along,
he has effectively withdrawn from the sport.

[20]        
At trial, a fellow work colleague, Mr. Robert Reilly, and a close
friend, Mr. James Hendricks, both testified about the changes they have
observed.

[21]        
Mr. Reilly is also a talented golfer (9 handicap) and noted that he
and the plaintiff used to golf regularly and essentially shared the same skills
level.  Since the accident, he has asked the plaintiff on a number of occasions
to join him on a round of golf but each time he says that the plaintiff has
declined.  Once he told him that his shoulder “could not handle it”.  On other
occasions, he says that the plaintiff just said “no I can’t”, without further
explanation.  The two men have not discussed the accident nor the injuries the
plaintiff suffered as a result of the accident.  Overall he described the
plaintiff as “a little more reclusive” since the accident.

[22]        
On cross-examination the plaintiff conceded that he may have declined
Reilly’s invitations to golf on the basis of his shoulder injury some 5-6 years
ago, but he was unable to say whether he had recently employed that excuse.

[23]        
Mr. Hendricks is the plaintiff’s an old childhood friend.  They met
while playing Pee Wee hockey in Kerrisdale some 35-40 years ago.  He said that
prior to the accident, despite the plaintiff being a much more talented golfer,
they often played together at a variety of the local courses   He estimated
they played 2-3 times a month during the good weather months.  He said that
since the accident the plaintiff has regularly declined any of his invitations
to play golf, simply mentioning that “he can’t play”, but without going into
any details.

[24]        
The plaintiff also complains that he used to enjoy skiing before the
accident but that he has been unable to do so since the accident.  He told Dr. Peach
that prior to the accident he was an “avid skier”.  In the statement he
provided to the ICBC adjuster after the accident, he stated that prior to the
accident he used to ski about once a week during the ski season.

[25]        
I find that both statements were obvious exaggerations.  In fact the
plaintiff only used to ski 5-6 times a season at Grouse Mountain and a handful
of other occasions on other local mountains.  He explained that when he
described himself as an “avid” skier he was referring to his ability to ski any
slope, and not to the frequency of his skiing outings.  Further when he
referred to skiing once a week, he said this estimate included all the times he
drove up to the mountain, found it was raining, and then turned back.

[26]        
In any case, however infrequent his skiing before the accident, I accept
that since the accident, he has indeed found it too painful to ski.  He tried
on two different occasions in the spring of 2009 to ski at Grouse Mountain but
could not ski more than a single run due to pain.  Mr. Hendricks confirmed
that he had skied with him a few times per year before the accident, but has
not since.

[27]        
The plaintiff also used to enjoy annual trips to his friend, Mr. Hendricks’
cabin in the Cariboo, where a group of buddies formed a “work team” to pull up
the dock, chop wood, and generally ready the cabin for the summer season. 
Whereas the plaintiff always participated in that heavy work, he says that his
ongoing pain has made it impossible to participate in that work since the
accident.  Mr. Hendricks corroborated that evidence.

[28]        
The plaintiff has however been able to continue to fish.  Indeed since
the accident he bought himself a small boat for fishing, although that has
broken down.  He continues to enjoy river fishing on Gabriola Island at least
once a year and continues to fish locally along the Fraser River with his
daughter.

[29]        
My own sense of the plaintiff’s situation is that while the accident
injuries have caused him some ongoing pain and discomfort, his overall
lifestyle and activities have also been affected by the after effects of his
wife’s death followed by his mother’s death some time later.  When his wife
died, his children were 13 and 17 years of age, in Grades 8 and 12
respectively.  His wife was a stay-at-home parent who had always managed the
home, supervised the children, and performed most of the household tasks. 
While he insisted that since her death, his life had not changed a great deal
and that his sports activities and social life had not been substantially
curtailed, I was left with a very different impression.

[30]        
He admitted that his wife’s and mother’s death have had an “absolute
effect” on his life.  Since his wife’s death, he has been careful to keep much “closer
to home”, particularly to supervise his young teenage daughter so as to ensure
she is keeping good company and coping well emotionally.  He spends as much
time as possible with her and tries to find activities they can enjoy together,
particularly local fishing outings.  He struck me as a loving and committed
father who has done his best to meet both his children’s needs, and
particularly the youngest child’s needs, since his wife’s death.

[31]        
As I noted earlier, his colleague Mr. Riley described him as “more
reclusive” than before.  His old friend Mr. Hendricks was surprised when
the plaintiff recently passed up the opportunity to join a group of old
schoolmates to meet up with an old hockey pal who was travelling through town
from Australia.  He described his friend as now being “much less accessible as
a person”.  He said that he was not as “open” as he used to be and that it
seemed to be difficult to make arrangements to get together anymore.  Both Mr. Riley
and Mr. Hendricks testified that they had never heard the plaintiff
specifically discuss the accident to any degree, nor had they heard him
articulate any complaints about his injuries.  Neither of them specifically
attributed the plaintiff’s lack of involvement in skiing or golf, or his lack
of social involvement to the effects of his injuries.

[32]        
Whether as a single parent, the plaintiff is simply too busy to
participate in a full social life, or whether he is continuing to adjust
emotionally to his wife’s sudden death and his new status as a single man and
single parent, or both, I cannot say.  Neither of the plaintiff’s friends
provided any evidence to shed any light on this topic.  Nor did the plaintiff
seem to have any particular insight into the matter.

[33]        
Defence counsel submitted that the Court ought to draw an adverse
inference in this case on the basis that the plaintiff had failed to call his
adult son as a witness on his behalf.  The defence submitted that the son, now
age 20, would have been in the best position to advise the Court about the
impact the injuries have had on all aspects of his father’s life since he sees
the father in the home and presumably daily witnesses the effects of accident
injuries.

[34]        
I am not prepared to draw such an adverse inference here.  I have no
evidence as to whether the son was even available to testify.  Nor in any case is
it clear that a 20-year-old would have the maturity or insight to understand
the difficult and complex dynamics involved in his father’s recovery from the
combined effects of his soft tissue injuries and the death of a long time
spouse.  I expect that the son himself has faced his own challenges since his
mother’s death.

[35]        
The final result however is that the plaintiff has failed to lead
sufficient evidence to persuade the Court that the significant change in his
activities and general lifestyle is solely attributable to the lasting effects
of his soft tissue injuries.  I believe that at least one additional factor
which is at play here is his own emotional adjustment to his wife’s death.

[36]        
In any case, on the basis of Dr. Peach’s prognosis and the
likelihood that the plaintiff’s complaints arising from his soft tissue
injuries will persist for some time to come, the plaintiff’s counsel has
submitted that an award in the range of $60,000 would be appropriate.

[37]        
In this regard the plaintiff relies particularly on the decision of
Bernard J. in Lamont v. Stead, 2010 BCSC 432.  There the
plaintiff’s vehicle was also rear ended.  She sustained soft tissue injuries
and complained of neck pain and muscle spasms across her upper and middle
back.  She was referred to physiotherapy and attended treatments for the next
six months.  In the interim she attempted unsuccessfully to return to work, but
had to discontinue.  She was able to return to work as a hospital
physiotherapist a couple of months later and since that time her employer had
accommodated her physical limitations by limiting her work duties.  She
complained of almost constant mechanical neck pain, the inability to do any
heavy household work, and the inability to enjoy her wide variety of
pre-accident sports including skiing, running, kayaking, swimming and boating
prior to the accident.

[38]        
I agree with the defence that the circumstances in Lamont are
substantially different to those in the case at bar.  The plaintiff here has
suffered injuries which are limited to his lower back and neck.  He has pursued
very little treatment for his injuries and, despite his doctor’s
recommendations, he has not attended few physiotherapy treatments or undertaken
any core muscle conditioning programs.  Nevertheless it is expected that he
will recover in the foreseeable future.  As I have already noted, while I
satisfied that his ongoing pain and discomfort has limited his participation in
his former sporting activities, some of his social withdrawal appears to be the
result of other factors.

[39]        
The defence has criticized the plaintiff’s failure to follow the course
of treatment recommended by Dr. Peach—specifically to attend physiotherapy
and to strengthen his core muscles, adopting a gym program optimally under the
supervision of a personal trainer.  Defence counsel submits that a reduction of
the non pecuniary damages award by as much as 30% would be in order.

[40]        
While I acknowledge the plaintiff’s failure to pursue those avenues of
treatment, it remains that Dr. Peach admitted that while each of these
modalities of treatment might improve the plaintiff’s overall health, he could
not say any of these treatments would necessarily reduce the amount of pain he
suffered.  In these circumstances, I see no foundation for any reduction of
damages to reflect a failure to mitigate.

[41]        
The defence relies on series of authorities, most particularly: Morrison
v. Peng, 2010 BCSC 562; Al-Mandlawi v. Gara, 2005 BCSC 740,
and Hrnic v Fast, 2004 BCSC 1411.

[42]        
In Morrison, the plaintiff suffered soft tissue injuries of the
neck, upper and lower back with symptoms which lasted approximately a year
after the accident.  Non pecuniary damages of $18,000 were awarded.

[43]        
In Al-Mandlawi, the 38-year-old plaintiff was awarded non
pecuniary damages of $8000.  He suffered mild soft tissue injuries of the neck
and back which were largely resolved within two months and fully resolved
within eight months of the accident.

[44]        
In Hrnic the plaintiff also suffered soft tissue injuries.  She
was unable to work for two weeks but her neck, shoulder and arm complaints were
all resolved within six months after the accident, and her low back complaints
within approximately 16 months following the accident.  The Court awarded non
pecuniary damages of $12,000.

[45]        
On a review of all of those authorities, the defence submits an
appropriate award of damages would be approximately $15,000, to account for
inflation since those awards were made.

[46]        
In my view, those decisions involved less serious soft tissue injuries
which were largely resolved within several months or at most a year after the
accident.  In the case at bar, the plaintiff has suffered a mild to moderate
soft tissue injuries, where the symptoms have persisted for almost three years
since the accident and are still not resolved.  In these circumstances, I find
that a fair and reasonable award of damages is $25,000.

Loss of past income:

[47]        
As I noted at the outset, the plaintiff returned to work after the
accident.  There is no claim advanced under this head of damage.

Special damages:

[48]        
The parties have agreed that the net special damages, following the
payment of $100 to date, total $404.60.  There will be an award of this sum
under this head of damages.

Loss of future income earning capacity:

[49]        
This was perhaps the most difficult of the various claims advanced by
the plaintiff.  Although he returned to work full time after the accident and
has not incurred any wage loss to date, he claims that he has suffered a loss
of future income earning capacity.

[50]        
The plaintiff has been employed as a commission salesman at Brown Bros
Ford since 1993.  Prior to the accident, he earned approximately $60,000⁺
per year.  He earned $60,623 in 2005, $65,914 in 2006, and $90,619 in 2007.  It
is not clear but the 2007 income may have been augmented by certain Ford Motor
Company benefits which were paid out that year.

[51]        
However since the accident the plaintiff’s income has declined.  In
2009, he earned $41,684.60, the first drop in his income in the last five
years.  In 2010, his income declined further to $37,856.77.  In 2011, he
testified that his earnings have been “okay, but not great” and that unless
this pattern changed, he expected to earn no more than $40,000 this year.

[52]        
I should note here that the plaintiff does not attribute this decline in
earnings to any of his accident injuries.  As I understand it, his daily work
involves reporting to the downtown office, attending sales meetings, walking
about and checking the stock on the lot several times a day, sitting at his
desk checking computer data, and sometimes taking prospective customers on test
drives.  There are constant opportunities to stand and sit, so as to accommodate
one’s position.  Approximately eight times a year, as a means of providing
service to his customers, he arranges to drive a truck up to Prince George and
Fort St. John for delivery.  In those cases, he is required to drive for
several hours at a stretch and he finds this difficult to tolerate, given his
low back pain.  However apart from those occasions, there is no suggestion the
plaintiff is unable to do his work or that he has actually lost any income as a
result of his injuries.

[53]        
Rather, as I understand the plaintiff’s position, he accepts that as a
result of the recent recession, the auto industry has suffered national losses
and that accordingly his income, like that of many other salespeople, has
dropped.  He complains that his present income level is unsustainable” and
insufficient to allow him to support his family.  He said that accordingly, at
some point in the future, he may be forced to consider an alternative means of
employment.

[54]        
It is in this regard that his claim arises.  Prior to commencing work in
the automotive sales industry, he had worked for many years for the Canadian
Forest Products company, at the local Eburne Sawmill Division, working his way
up the ladder until he ultimately became the senior Shift Supervisor.  After
the forestry industry’s general decline throughout the Province, he turned to
car sales and joined Brown Bros Ford in 1993.  He says that over the last 18
years he has enjoyed his work at Brown Bros, that he respects the corporate
family owners, and that he has always enjoyed the nature of the work as well as
the fellowship of his colleagues.

[55]        
Approximately ten years ago he left Brown Bros Ford for a short period
to manage another dealership but ultimately returned to Brown Bros.  While he
has not made any job applications or engaged in any search for alternative
employment over the last ten years, he says that he has always remained open to
other opportunities, particularly since, as a commission salesman, he has no
pension benefits, no secure income, and limited employment stability.

[56]        
By way of alternative employment, his counsel has submitted the Court
ought to consider the possibility of the plaintiff working as a lumber grader. 
Indeed at trial he produced a re-issued copy of the lumber grading certificate
which was issued to him in 1986, some years before he left Canadian Forest
Products company.  (On reviewing the Work History document—Exhibit 1,
Tab 15—I note that the plaintiff specifically worked as a lumber grader in
1987).  He explained that he obtained a re‑issued copy of that
Certificate in March 2011 for the purposes of producing that document at
trial.

[57]        
The plaintiff submits that but for the accident and the injuries
suffered, he would have the ability to consider returning to work as a lumber
grader.  The plaintiff says that now it is highly unlikely he could perform
that work, given his ongoing disabilities.  Specifically, he says that he could
not stand on his feet for most of the day, lift heavy pieces of lumber
(weighing up to 80 lbs) and then turn them over during the grading
inspection process.  He says that he would be unable to manage the standing,
bending, lifting and reaching involved in such employment.

[58]        
While no evidence of any comparative income losses was adduced, his
counsel submits that he has suffered a loss of his income earning capacity which
he values at $25,000.

[59]        
The defence submits that there is no evidence to support this alleged
loss.  First, as he admitted in cross-examination, the plaintiff is not having
any difficulties performing his present work, other than the long haul delivery
trips to the North of the province.  The decline in his income is not related
to his injuries but rather to the international recession.  His own work
colleague, Mr. Reilly, testified that the auto industry is undergoing a
resurgence and that he expects his own income will rise this year.

[60]        
Secondly, even if the plaintiff did chose to find alternative
employment, I agree that even without the accident injuries, it was unlikely he
would have sought or obtained work as a lumber grader.  He has suffered
shoulder problems for some time and according to Dr. Peach, the plaintiff
would find it difficult lifting heavy objects above his waist level.  Given his
age, his chronic shoulder pain, and his loss of union seniority over his many
years of absence from the lumber industry, I find it is highly unlikely he
would ever returned to work in that industry.  Further he admitted that most of
this work is available outside the Lower Mainland and that as a single parent,
with an adolescent child who has established friends and school relationships
here, it was unlikely that at this stage of his life, he would move his family
to those outlying areas to pursue such work.

[61]        
In every case involving a future loss of income earning capacity claim,
the plaintiff bears the burden of proving there is a substantial possibility of
a future event leading to an income loss.  Here I find the plaintiff has not
proven impairment of a realistic employment opportunity and accordingly, there
is no need to consider an assessment of this claim adopting either an income
approach or the capital asset approach (Steward v. Berezan, 2007
BCCA 150).

[62]        
In my view, given his long standing history in the sales industry, it is
more likely that in the event the plaintiff chooses to leave Brown Bros Ford,
he will seek alternative sales or sales management positions in any number of
different fields, involving any number of different products.  There was no
evidence led that he is less able to do such work, or that he is less
marketable as a salesman or that his injuries have made it more difficult to
compete for employment as a salesman.

[63]        
For all of these reasons, this loss of income earning capacity claim
must fail.

Cost of future care:

[64]        
While the plaintiff has not advanced any specific claim, his counsel
submits that since his physician has recommended physiotherapy in the past, as
well as a gym membership and the engagement of a personal trainer, all of these
items should be assessed under the rubric of future care costs.  I see no foundation
for making any award under this head.  The plaintiff has clearly indicated that
he has no intention of joining a gym or attending physiotherapy, much less
engaging a personal trainer.  He strikes me as an individual who is generally
reluctant to seek out medical care and assistance or pursue such therapies. 
Since there is little or no likelihood of him pursuing such treatment, I will
make no award under this head of damages.

Costs:

[65]        
Since I am unaware of whatever offers of settlement may have been
exchanged by counsel, I will make no award of costs at this point.  I leave it
to counsel to resolve this matter between themselves and failing that, to
contact the Registry so as to arrange to make short written submissions on the
matter.

“The
Honourable Madam Justice Boyd”