IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110601

Docket: M084380

Registry:
Vancouver

Between:

Joseph Sungjun
Doho

Plaintiff

And

Alla Melnikova

Defendant

– and –

Docket: M093431

Registry:
Vancouver

Between:

Joseph Sungjun
Doho

Plaintiff

And

Sean Edward Burr

Defendant

Before:
The Honourable Mr. Justice Rogers

Reasons for Judgment

Introduction

[1]            
This is a personal injury damages action arising out of
two motor vehicle accidents. The main issues are, on the one hand, the
plaintiff’s claims for loss of opportunity to earn past income and for
reduction of his future earning capacity, and on the other, the defendants’
claims that the plaintiff failed to mitigate his loss and that his injuries
have not impacted his earning capacity in a legally meaningful way.

[2]            
The defendants have admitted liability for the accidents
they caused.

Credibility

[3]            
I find that Mr. Doho was a credible witness. I
accept his testimony as an honest and accurate account of the facts of this
case. Likewise, I find that the evidence of Mr. Rogerson, owner of the
company at which Mr. Doho’s works, was reliable and I accept his evidence
as it was given. I find that the evidence of the two medical doctors in this
case, Drs. Ellison and Turnbull was fair, unbiased and genuine.

[4]            
I am less inclined to accept without reservation
the evidence of the two income loss experts. They were Mr. Teasley for the
plaintiff and Mr. Tidball for the defendants. There was no difficulty with
their expertise: both men were well qualified to express an expert opinion on
the plaintiff’s income loss. However, I developed the impression that each
identified a little too much with the party that instructed them and not quite
enough with their duty to provide the court with an unbiased and objective
opinion.

[5]            
Mr. Teasley tended to editorialize his
evidence. For example, he referred to Mr. Doho as “the best mortgage
broker in captivity”. For his part, Mr. Tidball wrote that there was not
“any basis” for concluding that Mr. Doho would have been more productive
than the other brokers in his firm. He made that statement in the face of clear
evidence that before Mr. Doho’s injury, Mr. Doho was considerably
more productive than anyone in that firm. That said, both Mr. Teasley and Mr. Tidball
offered only estimates of Mr. Doho’s post-accident income loss. Despite
the somewhat argumentative nature of their opinions, I find that I can adjust
the weight I will give to their estimates and so do justice to the claim.

Pre-Accident History

[6]            
Mr. Doho was born in Korea in 1979. He is
now 32 years old. Mr. Doho came to Canada with his family in 1993. He is a
Canadian citizen. Mr. Doho graduated from high school in 1998 and then
attended three years of post-secondary education at UBC. He studied
microbiology and planned to be a medical doctor. In his second year of
university, he landed a part-time job as a clerk with the CIBC. He carried on
working for the CIBC full-time in the summer. He liked bank work. He
particularly enjoyed meeting the many people who crossed his path in the course
of his workday.

[7]            
In his third year of university, the bank
assigned Mr. Doho to work with Mr. Sobieski. Mr. Sobieski was
one of the bank’s particularly successful mortgage specialists. Mr. Doho
found that he particularly enjoyed working in mortgage placement. When his
stint with Mr. Sobieski ended, Mr. Doho applied to the bank for work
as a mortgage specialist himself. The bank turned him down. Undeterred, Mr. Doho
finagled a longer term placement with Mr. Sobieski.

[8]            
Mr. Doho applied himself to the mortgage
placement business. He worked long hours for Mr. Sobieski, in return
for relatively low pay. What he got in spades, though, was an education in the
business of mortgage placement. That education encompassed the financial
aspects of the business, of course, but he also learned equally important
lessons. He learned that in order to succeed a mortgage specialist must work
very hard, must market himself relentlessly, must be extremely attentive and
responsive to the demands of the realtors who referred customers to him, and to
the needs and wants of the customers themselves. Mr. Doho’s apprenticeship
with Mr. Sobieski spanned approximately one year’s time, from 2003 to 2004.

[9]            
In mid-2004 Mr. Doho decided to move on
from the CIBC. He resigned from the CIBC and accepted a position as a mortgage
specialist with TD Canada Trust. His manager was Mr. Rogerson. Mr. Doho
started at TD Canada Trust with no established relationships with realtors or
individual borrowers. He applied himself with determination to the development
of his practice. Mr. Doho was very successful in that effort. In his first
full year at TD Canada Trust, that is the calendar year 2005, he produced so
much business that he won the bank’s rookie of the year award.

[10]        
In 2005 and 2006 Mr. Doho recognized the
potential of servicing the mortgage needs of purchasers of units in condominium
and townhouse developments. He concentrated on developing close relationships
with the sales personnel at the sales offices of such projects. This was a time
consuming effort. It required him to attend at the sites some evenings and many
if not all weekends. He had to spend a lot of time, most of it on his feet, at
the project sales offices. His efforts paid off. Project sales were very
productive and lucrative for Mr. Doho. The project sales were so good for Mr. Doho
that he felt that there was no need for him to advertise his services to the
public.

[11]        
Although he was heavily engaged in project
sales, Mr. Doho did not ignore clients from other referral sources like
realtors in regular residential sales. He had no difficulty maintaining a busy
schedule. When he was busy, Mr. Doho would be out of his office and
driving around to see four to five clients per day. This, of course,
necessitated his spending a lot of time behind the wheel of his car, driving from
one appointment to another.

[12]        
The result of Mr. Doho’s efforts and his
way with the people with whom he did business was that in each of 2005 and 2006
he placed mortgages with a total value of $40 to $47 million. This was singular
and stellar performance. The average mortgage specialist at that time was
placing mortgages on the order of $14 to $15 million per year.

[13]        
Mr. Doho’s boss, Mr. Rogerson, left TD
Canada Trust in 2005. Mr. Rogerson started his own mortgage brokering
business under the name Verico Paragon. Mr. Rogerson began to recruit
people to work for his business. He was interested in retaining sales
people who did not require a whole lot of training and molley-coddling. Some of
the sales people that he hired came from TD Canada Trust. In mid-2006 Mr. Rogerson
and Mr. Doho spoke about Mr. Doho joining Verico Paragon’s sales
force as well.

[14]        
Moving to Verico Paragon was attractive to Mr. Doho
for a number of reasons. At TD Canada Trust, he worked as a mortgage specialist
and that meant that he could only offer borrowers TD Canada Trust products. If
a borrower did not qualify for a TD Canada Trust mortgage, Mr. Doho could
not retain the borrower’s business by arranging a mortgage for him with a
different lender – the Bank of Montreal or VanCity Credit Union, for example.
If he moved to Verico Paragon, Mr. Doho would work as a licensed mortgage
broker instead of an unlicensed mortgage specialist. As a broker, he could make
a wide variety of financial services available to borrowers. That variety
included the very same TD Canada Trust products with which he was very
familiar, but also offerings from many other financial institutions. As a
mortgage broker for Varico Paragon, Mr. Doho could service that same
client who did not qualify for a TD Canada Trust mortgage by making a mortgage
from some other lender available to him. Becoming a broker would therefore
allow Mr. Doho an opportunity to offer a broader scope of financial
products to borrowers. This would allow Mr. Doho to service more customers
than before.

[15]        
In addition to increasing the number of
financial products in which he could trade, becoming a mortgage broker held out
the possibility of dramatically increasing Mr. Doho’s income. That is
because TD Canada Trust paid its mortgage specialists a commission of .45
percent of the funded value of mortgages they placed. Verico Paragon agreed to
pay Mr. Doho .9 percent of the funded value of mortgages he brokered. In
2006 the top mortgage broker at Verico Paragon earned $170,000 on a commission
of .9 percent. His volume was therefore on the order of $17 million. In 2006 Mr. Doho
placed mortgages worth more than $40 million and, at a commission of only half
of Verico Paragon’s rate, had earned $232,000. For the same level of
productivity, a move to Verico Paragon held out the prospect of doubling Mr. Doho’s
income.

[16]        
Mr. Doho’s business volume was derived in
large part from his personal relationships with realtors. Those relationships
belonged to Mr. Doho; they were not the property of TD Canada Trust. There
was no barrier to Mr. Doho maintaining those relationships after moving to
Verico Paragon. TD Canada Trust was happy to get lending business through its
in-house mortgage specialists or through independent brokers. After moving to
Verico Paragon, Mr. Doho could, therefore, place the same TD Canada Trust
mortgage products with which he was very familiar. Furthermore, there were
several large condominium construction projects starting, or about to start, in
late 2006 and early 2007. Mr. Doho planned to make himself available at
those projects. He planned to develop and maintain productive relationships
with the sales personnel at the sales offices of those developments and to
provide mortgage services to purchasers of units in those projects.

[17]        
Other than the commission rate and the wider
variety of products he could offer to borrowers, Mr. Doho’s business
practices and prospects at Verico Paragon were no different than they had been
at the TD Canada Trust. For these reasons, absent an intervening event, Mr.Doho’s
business volume ought not to have decreased as a result of his moving to Verico
Paragon.

[18]        
All of these factors worked to convince Mr. Doho
that he would have a better financial future if he left TD Canada Trust, got
his mortgage brokering license, and went to work as a mortgage broker at Verico
Paragon. In or around October and November 2006 Mr. Doho took steps to
obtain his license to broker mortgages. He planned to resign from TD Canada
Trust and to start work with Verico Paragon in December 2006.

The First Accident: Mechanics

[19]        
Just as Mr. Doho was on the cusp of moving
from TD Canada Trust to Verico Paragon, he was involved in the first of two
motor vehicle accidents. This accident happened on November 26, 2006. Mr. Doho
was driving a full size SUV on a slushy highway. The defendant, Ms. Melnikova,
was driving an Audi sedan. She approached Mr. Doho’s vehicle from behind
and hit its rear bumper. The impact knocked Mr. Doho’s truck out of
control. It spun clockwise and its front end rammed into a concrete barrier at
the road side. The truck sustained heavy damage to its front end and less extensive
damage to its rear end.

First Accident: Injury and Recovery

[20]        
Immediately after the accident, Mr. Doho
was extracted from the wreck of his vehicle and was taken by ambulance to a
hospital. He was assessed and released. He did not notice symptoms of injury
until the next day when his lower back, upper back and neck became sore. His
symptoms gradually became worse. The pain concentrated in his lower back. He
experienced numbness, tingling and pain in his left and right legs. He had
difficulty getting out of bed. He could not walk except in a stooped crouch. He
went into his office only to attend to those mortgage files that had to be
completed.

[21]        
The pain in Mr. Doho’s upper back and neck
settled down and no longer bothered him about three months after the first
accident. The pain in his lower back and the pains in his legs got worse. Mr. Doho
had never had medical problems before and did not have a family doctor. His
symptoms became so severe and so limited his function that he was driven to
seek medical help. Mr. Doho first saw Dr. Ellison about his accident
related problems on December 21, 2006. Dr. Ellison came to be Mr. Doho’s
family physician. Mr. Doho described his symptoms to Dr. Ellison. Dr. Ellison
was concerned that Mr. Doho had suffered a significant injury to his lower
back. Dr. Ellison ordered a CT scan of Mr. Doho’s back. That scan was
performed in February 2007. The scan showed a prolapsed disk at the L4-5 level
of Mr. Doho’s lower back.

[22]        
As noted earlier, coincident with the accident, Mr. Doho
resigned from his job as a mortgage specialist at TD Canada Trust and joined
Verico Paragon as a mortgage broker working under contract. Mr. Doho
started work at Verico Paragon in early December 2006.

[23]        
I accept Mr. Doho’s evidence about the
effect of the accident upon his ability to function. For the first six months
after the accident Mr. Doho attended only to those files that needed to be
processed for closing. He attended at his office only a couple of times per
week. He saw almost no new clients. Because he had a large volume of files “‘in
the pipeline”, Mr. Doho’s productivity at Verico Paragon did not
immediately plummet. However, Mr. Doho’s back pain was such that he could
not attend at the new condominium development sites and put in the hours on his
feet necessary to satisfy the needs of the project sales people and purchasers
there. Likewise, Mr. Doho’s back was too sore to allow him to spend hours
driving his car from one client meeting to another. These were all activities
that he did regularly and without limitation before the first accident when he
was working for Toronto Dominion Trust.

[24]        
Mr. Doho’s lower back pain gradually
decreased in the year following the first accident. By July and August 2007 he
was feeling considerably better but was by no means fully recovered. He felt
well enough in July to try hitting some golf balls at a driving range. He found
that after only a few swings with his club his back became very sore and he
desisted. His tolerance for driving was still limited.

[25]        
In September 2007 his back pain flared up for no
reason that he could identify. Dr. Ellison referred Mr. Doho to Dr. Turnbull,
a neurosurgeon. Dr. Turnbull used to do surgery, but now restricts his
practice to consulting on neurosurgical issues. Dr. Turnbull confirmed
that Mr. Doho had a disk protrusion at the L4-5 level of his lower spine.
He did not recommend surgery. Dr. Turnbull and Dr. Ellison
independently recommended that Mr. Doho exercise and lose weight. Mr. Doho’s
weight had increased from 82 kilograms before the accident to approximately 102
kilograms at trial. Both doctors opined that exercise and weight loss would
reduce the stress on Mr. Doho’s back and could reduce his symptoms.

[26]        
Mr. Doho’s lower back continued to be
painful on a daily basis from the Fall of 2007 on. The pain flared when he had
to sit for more than an hour or two. Flying for business and pleasure to Korea
was very painful. Likewise, driving for a lengthy period, as for example from
Vancouver to Seattle, caused a significant increase in his pain.

The Second Accident: Mechanics

[27]        
On March 9, 2009 Mr. Doho was driving his
SUV and he came to a stop at an intersection. A small pickup truck following
behind and driven by the defendant, Mr. Burr, did not stop. Mr. Burr’s
truck rear ended Mr. Doho’s SUV. The impact was quite light. The damage to
Mr. Doho’s truck was a small dent on its rear bumper; the damage cost only
$800 to repair. Mr. Doho felt the impact as a slight bump.

The Second Accident: Injury and Recovery

[28]        
The day after the second accident Mr. Doho
experienced a significant increase in the pain in his lower back. The flare up
bothered him for several days, and then his lower back returned to what had,
for him, become its normal state of constant low-grade pain aggravated by activity
and prolonged sitting.

Current Function

[29]        
Presently, the pain in Mr. Doho’s lower
back is ever-present. The pain is exacerbated by, among other things, lifting.
For example, he can lift one or the other of his two young children, aged 2.5
years and 6 months, but not both. This limitation chagrins Mr. Doho – he
points out that his wife, a slightly built woman of 100 pounds, can easily lift
and carry both boys. After trying to golf twice since the first accident, and
after experiencing significant pain on each occasion, he no longer plays golf. Mr. Doho
counts this as a real loss; before the first accident he was an avid golfer and
often played with his parents. Mr. Doho’s winter activities used to
include skiing and snowboarding. He does neither now for fear that jostling and
jarring on the slopes will increase his pain and possibly worsen the pathology
of his lower back. Mr. Doho’s back pain is also exacerbated by staying in
one position too long. His tolerance for driving is less now than it was before
the first accident. Before the first accident on a busy day he would drive to
visit 4 to 5 clients, now he can only see 2 to 3 clients in a day. He cannot
stand at project sales offices all day as he used to before the first accident.

[30]        
Mr. Doho has tried to lose weight by
dieting. He has been unsuccessful. He testified that he has always been
somewhat heavy, and that although he does not eat all that much he nevertheless
tends to gain and keep weight. He achieved his best shape ever in 2006 just
before he married his wife in Korea. He hired a personal trainer, spent hours
in the gym every day, and generally dedicated himself to looking as good as
possible for the occasion. Since the accidents his lower back pain has been
such that he does not do strenuous exercise. Dr. Ellison testified that
although an exercise regime could help Mr. Doho manage his pain, it is
hard for a patient to exercise when he has a bad back, and that exercising a
back with a prolapsed disk is problematic. Dr. Turnbull testified that
even if Mr. Doho exercised and lost weight, he would nevertheless still
have degenerative back disease. When Dr. Turnbull was asked under
cross-examination whether failing to do exercises and losing weight would have
the effect of prolonging Mr. Doho’s back pain, Dr. Turnbull
testified: “It varies from person to person, so much so that you can’t predict
that.”

[31]        
I accept Dr. Turnbull’s opinion that
although there is definite pathology in Mr. Doho’s lower back, given his
current symptoms he is not likely to require surgery in the foreseeable future.
I conclude from that opinion that because surgical relief is not in the cards
for Mr. Doho, he will continue to have the same level of pain and dysfunction
as he currently experiences. This is a permanent condition.

[32]        
The housing market in the Lower Mainland was
extremely busy in 2007. The volume and value of housing transactions rose to
historic highs. Mr. Doho could not take advantage of project sales because
he could not spend the hours on his feet required of a mortgage broker at a
development sales office. Mr. Doho adapted his business practice to his
post-accident limitations. Mr. Doho concentrated on his contacts in the
Korean community. He saw fewer people in a day than he had before the first
accident, and although he still drove approximately the same distance in the
year, his driving was limited to shorter distances per trip. In the result, Mr. Doho’s
business productivity in 2007 decreased markedly. Instead of placing mortgages
of $40 to $47 million as he had in 2005 and 2006, in 2007 Mr. Doho placed
mortgages worth approximately $20 million. He earned $187,000 (this and all
following income amounts are rounded) in 2007.

[33]        
In 2008 the housing market crashed. Mr. Doho’s
income decreased as well. In 2008 he earned $172,000 and he was fifth from the
top Verico Paragon brokers; in 2009 he made $95,000 and was fifth from the top
in his firm; in 2010 he earned $88,000 and was ninth from the top earner at Verico
Paragon. As of the beginning of April 2010, Mr. Doho had earned
commissions of $51,000. Mr. Doho’s overhead, that is to say his cost of
doing business, is approximately 21 percent of his gross revenue. He is in the
highest marginal income tax bracket.

Parties’ Positions

Plaintiff

[34]        
Mr. Doho argues that his general damages
should be assessed on the basis of a permanent somewhat disabling back injury.
He claims $90,000 for general damages. Mr. Doho relies on Mr. Teasley’s
income loss opinion and claims $121,000 net of expenses and taxes for his loss
of opportunity income in 2007 plus another $20,000 net for each of the years
since. Mr. Doho claims damages for reduction of earning capacity. His
claim under this head of loss is modest: $20,000. By limiting his claim so, he
tacitly acknowledges that the adaptations he has made to his way of doing
business have almost completely ameliorated the negative effect of his injury upon
his ability to earn income.

Defendants

[35]        
The defendants say that Mr. Doho’s
non-pecuniary damages should be assessed at $45,000 to $60,000. They say that
his income loss must be limited to the $26,000 net that Mr. Tidball
estimated it to be. The defendants do not acknowledge any liability for income
loss after 2007. They say that by the end of 2007 Mr. Doho recovered what
function he requires to fully engage in his work. The defendants maintain that
although he may still be symptomatic, those symptoms do not impact his ability
be a mortgage broker. The defendants’ counsel did, however, fairly and properly
acknowledge that if Mr. Doho testified that due to his accident-caused
injuries he can now see only 2 to 3 clients per day whereas before the accident
he saw 4 to 5 per day, and if the court accepted that evidence, then an
evidentiary basis would exist for an award for reduction of earning capacity.
The defendants say, lastly, that all of Mr. Doho’s claims should be
reduced by 25 to 30 percent to account for his failure to mitigate his loss.

Discussion

Non-Pecuniary Loss

[36]        
Mr. Doho referred to four cases in his
submission on non-pecuniary loss. They were: Zubek v. Clarkson,
2001 BCCA 282; Knickle v. Filipovic, 2006 BCSC 1693; Ghataurah
v.Fike, 2008 BCSC 533; and Houston v. Kine, 2010 BCSC
1289. Of these, the 2008 decision of Martinson J. in Ghataurah is, in my
view, the most useful of these cases. Non-pecuniary damages in that case were
assessed at $70,000.

[37]        
The defendants relied on six authorities: Vivekanand
v. Gibson and Nicolay, 2001 BCSC 301, aff’d 2003 BCCA 148; Ricci v. Mann
et al, 2003 BCSC 65; Heartt v. Royal, 2000 BCSC 1122; Mattu v.
Fust, 2009 BCSC 624; Hauer v. Clendenning, 2010 BCSC 366; and Naidu
v. Mann, 2007 BCSC 1313. Of these, I consider the Mattu case to be
the most useful comparator.

[38]        
The first accident caused a significant injury
to Mr. Doho’s lower back. He sustained a disk hernia at the L4-5 level of
his spine. That hernia impinged on his spinal nerves and caused him severe pain
for the first three or four months after the accident. He also suffered from
headaches and a sore neck. Those latter symptoms resolved by three months after
the accident. Mr. Doho’s leg pains dissipated by approximately four months
after the accident, but he was left with ongoing low back discomfort. His pain
is increased by lifting, playing sports such as golf, standing or sitting for
lengthy periods of time. Because surgery is not an option at this point, I have
concluded that Mr. Doho’s condition is permanent.

[39]        
I find that Mr. Doho’s non-pecuniary
damages arising out of the November 2006 accident should be assessed at
$80,000.

[40]        
The second accident caused Mr. Doho to
suffer a significant increase in his pain. The acute phase of that increase
lasted about two days, and was resolved within a week. After that, Mr.Doho’s
pain and limitation of function returned to its pre-second-accident level. I
assess his non-pecuniary damages arising out of the March 2009 accident at
$5,000.

Loss of Opportunity to Earn Income

[41]        
The defendants say that Mr. Doho’s
performance at Verico Paragon after the accident, particularly in 2008 and on,
shows that he was not, in fact, a better producer than any other broker at that
firm. The defendants argue that his income loss in 2007 should not, therefore,
be assessed on the assumption that his level of productivity would have
continued unabated in 2007 had the accident not intervened. The defendants
maintain that the proper approach to his income loss in 2007 is to assume that
he would have placed a volume of business on a par with the other two top Verico
Paragon brokers in that year.

[42]        
The flaw in the defendant’s position is their
assumption that Mr.Doho was fully recovered and his injuries no longer impeded
his business function after the end of 2007. I find that Mr. Doho’s
injuries did impact his ability to pursue business in 2008 and on. It would
therefore be unfair to assess his loss on the basis of his performance in
2008-2010.

[43]        
I find that absent the first accident, Mr. Doho
would have maintained a high level of production in 2007. I find that to be the
case because there were no impediments to his continuing to maintain the
lucrative relationships that he had built with condominium sales people and no
impediments to his ability to service the needs of purchasers those sales
people would have sent his way. In fact, his ability to service those needs
would have been enhanced by his new position as a broker. That is because as a
broker he could offer a wider variety of borrowing options to purchasers than
were available to him when he was with TD Canada Trust. Furthermore, the
residential real estate market in the Lower Mainland was very active in 2007 –
there is no reason to suspect that Mr. Doho would not have benefited from
that market.

[44]        
Mr. Doho’s claim of $121,000 for lost
income net of expenses and taxes in 2007 is, in my view, modest in all the
circumstances. I have no hesitation awarding that sum to him.

[45]        
I also believe that Mr. Doho’s claim of
$20,000 for each of 2008, 2009 and 2010 is modest as well. Absent the
accident-caused limitations on his ability to put in long hours and drive long
distances, Mr. Doho would likely have produced considerably more mortgage
volume and would have made considerably more income. I award Mr. Doho
$20,000 net of expenses and taxes for his income loss in each of 2008, 2009 and
2010.

[46]        
All of those awards are attributable to the
first accident. I find that the effects of the second accident were too
transitory to have significantly impacted Mr. Doho’s income.

Reduction of Earning Capacity

[47]        
I accept Mr. Doho’s evidence that his
accident-caused symptoms continue to limit his ability to pursue mortgage
business as vigorously he did before the accident. Mr. Doho’s condition is
permanent. He is clearly less valuable to himself now and that loss of value
has been directly caused by the first accident.

[48]        
Mr. Doho claimed $20,000 under this head of
loss. This is a very modest amount, given the nature of the case. I award
that sum to Mr. Doho for reduction of earning capacity.

Mitigation

[49]        
The most recent B.C. Court of Appeal
pronouncement on mitigation is Gregory v. Insurance Corporation of British
Columbia, 2011 BCCA 144. In that case, Garson J.A. wrote:

[53]      In Chiu v. Chiu, 2002 BCCA
618 at para. 57, this Court set out the test for failure to mitigate as
follows:

[57]      The onus
is on the defendant to prove that the plaintiff could have avoided all or a
portion of his loss. In a personal injury case in which the plaintiff has
not pursued a course of medical treatment recommended to him by doctors, the
defendant must prove two things: (1) that the plaintiff acted unreasonably in
eschewing the recommended treatment, and (2) the extent, if any, to which the
plaintiff’s damages would have been reduced had he acted reasonably. These
principles are found in Janiak v. Ippolito, [1985] 1 S.C.R. 146.

[56]      I would describe the mitigation
test as a subjective/objective test. That is whether the reasonable patient,
having all the information at hand that the plaintiff possessed, ought
reasonably to have undergone the recommended treatment. The second aspect of
the test is “the extent, if any to which the plaintiff’s damages would have
been reduced” by that treatment. The Turner case, on which the trial
judge relies, uses slightly different language than this Court’s judgment in Chiu:
“there is some likelihood that he or she would have received substantial
benefit from it …”.

(emphasis in the original)

[50]        
In Gregory, the medical evidence at trial
was to the effect that cortisone injections were a reasonable course of
treatment and might afford the plaintiff some degree of relief. The Court of
Appeal held that this was insufficient evidence to establish that the
treatments would have reduced the plaintiff’s damages.

[51]        
In the present case, the medical evidence was to
the effect that if Mr. Doho lost weight and exercised, his back pain
symptoms could be reduced. The evidence did not establish that losing weight
and exercising would reduce his symptoms. Dr. Turnbull addressed that
issue directly under cross-examination. He testified that the effects of losing
weight and exercising varies so much from person to person that there is no way
to predict the outcome.

[52]        
In any event, Mr. Doho’s back pain is such
that it would not, in my view, be reasonable to require him to undertake
strenuous exercises. Neither would it be reasonable to require him to spend a
lot of time swimming at a pool – time devoted to swimming would necessarily
reduce either his business activity or life at home with his wife and children.

[53]        
For these reasons I cannot give effect to the
defendant’s mitigation argument.

Conclusion

[54]        
Mr. Doho’s award for damages is as follows:

Together with court order interest on those
elements of the award that attract interest.

Costs

[55]        
Subject to any application to the contrary, Mr. Doho
is entitled to costs on Scale B for both actions.

“P.J. Rogers J.”
The Honourable Mr. Justice Rogers