IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110613

Docket: M062337

Registry:
Vancouver

Between:

Maurice
Bouchard

Plaintiff

And

Brown Bros. Motor
Lease Canada Ltd.,

United
Scaffold Supply Company Inc., and Antoine Naudi

Defendants

Before:
The Honourable Mr. Justice Pearlman

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff, Maurice Bouchard, claims damages for personal injuries
sustained in a motor vehicle accident which occurred on February 26, 2005. The
plaintiff, who was 26 years old at the time, was seated in the front passenger
seat of his brother’s parked truck when it was struck from behind by a pick-up
truck owned by the defendants,  Brown Bros. Motor Lease Canada Ltd. and United
Scaffold Supply Company Inc., and operated by the defendant, Antoine Naudi. At
the time of impact, the plaintiff was turned in his seat, facing to his left, as
he moved some objects on the front passenger seat. He was not wearing a
seatbelt because the vehicle was parked.

[2]            
The plaintiff claims that as a result of the motor vehicle accident he
suffered injuries to his neck, mid back and lower back, including an injury to
the L4-L5 disc, which was largely asymptomatic until October 2007. Since then,
the plaintiff has suffered intense low back pain with pain radiating to his
lower legs.

[3]            
Mr. Bouchard, who was a talented special effects technician employed in
the motion picture industry, has not been employed since July 2008. He contends
that he is permanently disabled as a result of the injuries to his low back
sustained in the motor vehicle accident of February 26, 2005.

[4]            
The defendants admit liability. However, while they admit that the
accident caused some soft tissue injuries to Mr. Bouchard, they say that the
significant change to his symptoms in October 2007 was not caused by the motor
vehicle accident. The defendants submit that at the time of the motor vehicle
accident the plaintiff suffered from pre-existing degenerative changes to his
low back, and that the motor vehicle accident of February 26, 2005, did not
cause, aggravate or accelerate those degenerative changes.

ISSUES

[5]            
The first question for determination is whether the February 26, 2005
motor vehicle accident caused or contributed to the severe and continuing low
back pain that the plaintiff has experienced since October 2007.

[6]            
The second issue is whether the award of damages should be reduced to
take into account a measurable risk that Mr. Bouchard’s pre-existing
degenerative changes would have detrimentally affected him, even if the motor
vehicle accident had not occurred.

[7]            
The plaintiff claims damages for non-pecuniary loss, past wage loss,
loss of earning capacity, cost of future care, and special damages.

FACTS

[8]            
The plaintiff was born in January 1979, and married his wife, Sondra, in
1999. They have a son, born in 2001, and a daughter, born in November 2005. Mr. Bouchard
and his wife met as students at the Emily Carr Art School in 1998. Mr. Bouchard
withdrew from the program at the end of his first year, but completed a
one-year diploma in film and television studies at the Interior Film and
Television School in Kelowna by the spring of 1999.

[9]            
Following their marriage, the plaintiff and his wife returned to
Vancouver where Mr. Bouchard embarked upon his career as a special effects
technician. After completing one year of a robotics program at the British
Columbia Institute of Technology in the spring of 2001, the plaintiff applied
his skills to the construction of electronic special effects devices for the
motion picture industry.

[10]        
In 2002, Mr. Bouchard incorporated his own company, Orb Design Inc., as
the vehicle through which he performed contract work for the design and
construction of special effects equipment. In addition, as a member of the International
Alliance of Theatrical Stage Employees (I.A.T.S.E.), Mr. Bouchard was
employed as a special effects technician on motion picture and television
projects. His employment as a special effects technician on film production
sets often involved 12 to 16-hour work days. Designing and building the
electronics for special effects required sustained concentration and the
ability to achieve a high level of accuracy in his work.

[11]        
Work on the production sets was at times physically demanding, involving
both lifting and bending. In a field where work assignments depended upon word
of mouth referrals, Mr. Bouchard developed a reputation as a highly skilled and
productive technician who was well regarded by his supervisors and co-workers.
Prior to the motor vehicle accident of February 26, 2005, the plaintiff was
able to cope with all of the demands of his work.

[12]        
 Before the accident, Mr, Bouchard enjoyed playing with his son,
working in his garden, and family camping, hiking, and fishing trips. He also
carried out home renovation projects and assisted his wife with household
chores.

[13]        
Mr. Bouchard was involved in two earlier motor vehicle accidents.

[14]        
In or about April 1998, Mr. Bouchard was the front seat passenger in a
vehicle driven by his wife. After they had come to a stop at a stop sign, they
were struck from behind by another vehicle. Mr. Bouchard’s principal complaints
were low back pain and neck discomfort, for which he received physiotherapy.
Between July 2000 and January 2001, Mr. Bouchard received 11 chiropractic
treatments from Dr. Sidney Sheard for low back pain. Dr. Sheard found the
straight leg raising test and other tests he performed were positive for nerve
root tension, and attributed the plaintiff’s lower back pain in the summer of
2000 to degenerative changes.

[15]        
 The plaintiff was also referred to the Canadian Back Institute in the
summer of 2000. An x-ray of the plaintiff’s lumbar spine performed on July 19,
2000 showed mild disc space narrowing at L5-S1, which the radiologist
interpreted as a sign of early degenerative disc disease. Mr. Bouchard’s
symptoms of low back pain had resolved by 2002.

[16]        
The second accident occurred on August 27, 2003, when the vehicle the
plaintiff was operating collided with another car attempting a U-turn ahead of
him. Four days after the accident, Mr. Bouchard attended a walk-in clinic where
he saw Dr. K.S. Gill for complaints of left neck, shoulder and low back pain. Dr.
Gill’s clinical notes confirm that straight leg testing was normal, and that he
found no sign of nerve root involvement. Mr. Bouchard did not seek further
medical treatment, and lost no time from work following the 2003 accident.

[17]        
The plaintiff recovered quickly. He experienced no low back pain between
the fall of 2003 and February 26, 2005.

The February 26, 2005 accident

[18]        
On the evening of February 26, 2005, Mr. Bouchard had climbed into the
front passenger seat of his brother’s pick-up truck to see the new stereo
system his brother had installed. The pick-up was parked on 248^th
Street, near the plaintiff’s home. Mr. Bouchard had turned to his left and was
reaching to move some objects on the front passenger seat when the pick-up was
struck from behind by another pick-up truck operated by the defendant Naudi. The
defendant was proceeding south on 248^th Street, and was attempting
to retrieve a package of cigarettes from the floor of his vehicle when the
collision occurred. Mr. Bouchard has little recollection of the impact, but
recalls seeing the tail-lights of the defendant’s vehicle as it drove away. Also,
in order to obtain the licence number of the other vehicle, he got out of the
truck and ran after the defendant’s vehicle until it came to a stop about a
block and a half away.

[19]        
There is no reliable evidence of the speed at which Mr. Naudi’s vehicle
was travelling. However, I infer from the fact that the defendant did not apply
his brakes before the collision, the rear of Mr. Bouchard’s brother’s vehicle
sustained damage of $1,400, and the rear and passenger side of Mr. Naudi’s
vehicle sustained $8,700 in damage, that the force of the impact was at the
very least moderate.

[20]        
 Mr. Bouchard testified that on the evening of the accident, he
experienced pain in his low back, shoulders and neck. Sondra Bouchard recalls
that the plaintiff was complaining about neck and low back pain a couple of
days after the accident, and that, following the collision, her husband became
guarded in his movements and would avoid bending down.

[21]        
In his direct examination, the plaintiff testified that, following the
February 2005 motor vehicle accident, he experienced periods of deep sharp pain
in his low back. In addition, Mr. Bouchard suffered from pain in his mid back,
as well as sharp pain and periods of numbness in his upper back.

[22]        
 According to Mr. Bouchard, from the time of the accident until the fall
of 2007, his low back pain became progressively worse, and then suddenly
deteriorated in October 2007. At that time, the plaintiff was working on
special effects for the television series “Supernatural”. He had started work on
that project in June 2007.

[23]        
 Mr. Bouchard came home from work one Friday evening in October 2007 and
fell asleep in a slumped position on a love seat. His upper back rested against
one arm of the love seat, his lower back was flexed on the seat, and his legs
extended over the other arm, flexed at the knees. When the plaintiff awoke, he
experienced what he described at trial as “constant, horrid, stabbing pain”. He
had intense pain in the lower back, which spread down the back of his left leg.
When Mr. Bouchard returned to work on the following Monday after this
incident, he found that the intense low back pain interfered with his ability
to function at work. The plaintiff took some time off from work in early
November, and ultimately quit the Supernatural project on December 5, 2007, as
a result of his low back pain.

[24]        
Mr. Bouchard next returned to work in March 2008 as a special effects
technician for “A Night at the Museum II”. The plaintiff testified that he had
to take painkillers at work due to his continuing severe low back pain. He was
unable to concentrate, and made mistakes in his work. His supervisor, Mr.
William Orr, became concerned for Mr. Bouchard’s safety when he learned how
much medication the plaintiff was taking, and terminated his employment on July
11, 2008. The plaintiff has not worked since then.

[25]        
 On December 24, 2008, Mr. Bouchard underwent bilateral discectomies and
foraminotimies at the L4-L5 and L5-S1 levels performed by Dr. Heran in an
attempt to relieve pressure and compression of the discs at L5 and S1. While
the surgery resolved the pain Mr. Bouchard had experienced in his feet, he
continued to experience severe pain in his lower back radiating to his legs, accompanied
by severe cramping. The plaintiff was also left with post operative epineural
scarring around the L5 and S1 nerve roots, for which there is no treatment at
the present time. Dr. Hunt has opined that as a result of the epineural
scarring, the plaintiff will most likely continue to experience neuropathic
pain in his lower extremities, which will be aggravated by increased physical
activity.

[26]        
The plaintiff complained of increasingly severe chronic low back pain
and intermittent severe leg cramps through 2009.

[27]        
 In March 2010, the plaintiff was admitted to the St. Paul’s Hospital’s Inpatient
Pain Management Clinic for a further assessment of his intractable low back
pain. His dosage of Cesamet, a synthetic cannabinoid prescribed to assist in
controlling the plaintiff’s chronic pain, muscle spasm, and sleep disorder, was
increased. Upon his discharge from the Inpatient Pain Clinic, Mr. Bouchard
stopped taking his sleeping medication, had several sleepless nights, and
displayed manic behaviour.

[28]        
On April 13, 2010, the plaintiff was certified under the Mental
Health Act, and confined in the Psychiatric Assessment Ward of St Paul’s
Hospital for eight days. He was assessed as suffering from a substance induced
mania, resulting from the increase in the dosage of cannabinoids during his
admission to the Inpatient Pain Clinic, combined with his increased use of
marijuana following his discharge from the Clinic. Mr. Bouchard was diagnosed as
suffering from bi-polar disorder. His medications were adjusted and he was
prescribed a neuroleptic for the treatment of his bi-polar disorder.

[29]        
In June 2010, Mr. and Mrs. Bouchard separated. The plaintiff attributes
the separation to the frustration and anger he experienced as a result of his continuing
and severe pain and the extent to which it has altered his life. Mrs. Bouchard
testified that the plaintiff is now almost unrecognizable as the man she married.
The plaintiff, who was formerly dedicated to his work and his family, is no
longer positive or outgoing, is disabled from employment in his chosen field,
withdrawn, and dependent upon his medications to manage his pain.

[30]        
 Mr. Bouchard has moved out of the family home, and lives alone in a
small apartment. He has recently developed an interest in music, which he says
provides some diversion from his pain.

[31]        
Defence counsel argued that Mr. Bouchard’s testimony respecting the
onset and severity of his low back pain before October 2007 is unreliable. Counsel
contended that Mr. Bouchard’s ability to exit his brother’s vehicle and run
after the defendant’s vehicle immediately following the collision is
inconsistent with any significant injury to his lumbar spine caused by the
motor vehicle accident. Mr. Bouchard testified that he experienced low
back pain later that evening. Mrs. Bouchard gave evidence that her husband
was complaining of low back pain within a couple of days of the accident. Although
Mr. Bouchard’s initial complaints to his family doctor, Dr. Surgenor, focused
on his upper back and neck, he also complained of sharp lumbar pain on March 5,
2005.

[32]        
The collision did not result in an immediate impairment of Mr.
Bouchard’s mobility. However, the question of whether the plaintiff sustained
an injury to his lumbar spine that caused or contributed to the severe low back
pain he experienced after October 2007 is one that may only be answered upon
consideration of all of the relevant evidence, including the medical evidence
of the plaintiff and the defendants.

[33]        
Before turning to the medical evidence, I make these observations
respecting the reliability and credibility of Mr. Bouchard’s testimony at trial.
In his direct examination, Mr. Bouchard said that between February 2005 and
October 2007 he experienced “horrid awful pain” in his low back and also
suffered pain radiating into his legs before October 2007. In
cross-examination, Mr. Bouchard conceded that he no longer had an accurate
recollection of his symptoms before 2007.

[34]        
I am satisfied that Mr. Bouchard did not seek to deliberately mislead
the court. During the trial, Mr. Bouchard was taking both narcotic and
non-narcotic medications to control his low back pain. By the time of trial, he
had lived with persistent, severe low back pain since October 2007. In these
circumstances, it is hardly surprising that Mr. Bouchard no longer had a
clear or entirely accurate recollection of his pre-October 2007 symptoms.

[35]        
In cross-examination, Mr. Bouchard agreed that his evidence on discovery
was more accurate than his recollection at trial. The plaintiff was examined
for discovery in September 2007, approximately one month before the sudden
deterioration of his lower back.

[36]        
On his discovery, Mr. Bouchard gave evidence that he had experienced low
back pain intermittently following the February 26, 2005 accident, and that he
had not experienced low back pain for several years prior to that accident. Mr.
Bouchard also gave evidence on discovery that at times his low back pain had
improved substantially since the accident; that during the 12 months prior to
his discovery, his low back pain bothered him several times a month; and that
he also experienced pain in his left buttock and thigh intermittently.

[37]        
 I accept that Mr. Bouchard experienced low back pain of varying
intensity intermittently between the time of the accident and October 2007, but
find that Mr. Bouchard’s recollections at trial that he suffered from constant
and severe low back pain and pain radiating into his legs before October 2007
are mistaken.

THE MEDICAL EVIDENCE

[38]        
Dr. Hannah Surgenor is the plaintiff’s family physician. When Dr.
Surgenor first saw the plaintiff on February 28, 2005, she noted that Mr. Bouchard
was complaining of back and neck pain and that he also suffered a loss of
concentration after the accident. From his first visit until October 2007, Mr.
Bouchard’s predominant complaints of back pain as recorded by Dr. Surgenor
concern upper back pain, sharp pain between the shoulder blades and numbness in
his upper back. However, Dr. Surgenor also noted that Mr. Bouchard reported
sharp lumbar pain on March 7, 2005. In her Form CL19 medical report to the
Insurance Corporation of British Columbia dated March 10, 2005, Dr. Surgenor
reported:

Little
improvement in pain. Neck movements – stiffness and decreased range of movement.
Back – unable to stand straight due to pain and stiffness. Pain between
shoulder blades on moving arms.

Dr. Surgenor testified that her note concerning the
plaintiff’s inability “to stand straight due to pain and stiffness” referred to
the plaintiff’s lower back pain. Initially, Dr. Surgenor recommended Ibuprofen,
massage therapy and chiropractic treatment.

[39]        
On March 14, 2005, Mr. Bouchard reported that his back was improving but
that he was experiencing a high level of stress associated with his work. Dr. Surgenor
prescribed Celexa for treatment of depression.

[40]        
In early April 2005, after the plaintiff reported a recurrence of back
pain, Dr. Surgenor prescribed Tylenol 3, Naproxsen, an anti-inflammatory, and
Flexeril, a muscle relaxant. On Dr. Surgenor’s recommendation, the plaintiff
saw Dr. Rahmany, a chiropractor and message therapist, 13 times between
April 5 and May 7, 2005.

[41]        
On June 10, 2005, Mr. Bouchard complained that he was still experiencing
upper back pain. He had returned to work full-time on the set of the movie “RV”
at the beginning of May. Dr. Surgenor requisitioned an MRI study of the
plaintiff’s thoracic and lumbar spine, which was performed on June 11, 2005, by
Dr. William Siu, a radiologist. In Dr. Siu’s opinion, the medical imaging
report revealed a bulging disc in the lumbar spine at L4-L5, and mild disc
space narrowing with circumferential disc bulging at L4-S1. Dr. Siu reported
that there was a “central disc protrusion at L4/5 level which may be causing
some impingement on the traversing L5 nerve roots. Degenerative disc changes at
L5/S1 level.”

[42]        
In June 2005, Dr. Surgenor also referred Mr. Bouchard to a neurologist,
Dr. Sadowski, because she was concerned that his complaints of numbness in
his upper back might indicate a neurological problem. When Mr. Bouchard saw Dr. Sadowski
in September 2005, he reported that he was experiencing daily low back pain
aggravated by increased activity including lifting,  and that his low back pain
had not changed in the past few months.

[43]        
Mr. Bouchard did not see Dr. Surgenor between August 24, 2005, and
January 13, 2006. At that time, the plaintiff complained of having experienced
six weeks of back pain with no relief from four sessions of chiropractic
treatment between December 16, 2005, and January 4, 2006.

[44]        
On May 6, 2006, Dr. Surgenor provided the plaintiff with a note that he
was not medically fit to work. At trial, Dr. Surgenor, after referring to her
clinical records, which note complaints of upper back pain and numbness on that
date, thought her note related to the plaintiff’s upper back pain.

[45]        
Between February and May 2006, Mr. Bouchard received four chiropractic
treatments. He also saw a physiotherapist on four times between May 6 and 16 for
treatment of both upper back and low back pain.

[46]        
Dr. Surgenor next saw Mr. Bouchard about his back problems on January
24, 2007, at which time he complained that his back pain had been worse for
awhile and that he was experiencing sharp pains between the shoulder blades.
Dr. Surgenor also diagnosed depression. Mr. Bouchard had stopped taking Celexa
for two months. He complained that when he took that medication, he experienced
side effects, including drowsiness and anger. The plaintiff was also reluctant to
take medications at work. He expressed reluctance to leave his house and felt
depressed and lethargic. Dr. Surgenor attributed the depression to Mr.
Bouchard’s worsening back pain. At the time, his main complaint was shoulder
pain.

[47]        
Although Dr. Surgenor referred Mr. Bouchard to a psychiatrist, Dr.
Matthew, the plaintiff never made an appointment to see him.

[48]        
On September 30, 2007, Dr. Surgenor noted that Mr. Bouchard had
re-injured his mid-thoracic spine a week previously and that he still
experienced lower back pain and neck pain. She renewed the plaintiff’s
prescriptions for Naproxsen and Tylenol 3. Dr. Surgenor had not prescribed
painkillers or muscle relaxants for the plaintiff since April of 2005.

[49]        
On October 4, 2007, Mr. Bouchard reported waking up on the morning of
October 1 and experiencing back spasms and numbness in his upper back. He did
not complain of low back pain on that occasion. However, on October 18, 2007,
Dr. Surgenor noted that Mr. Bouchard was complaining of lower back pain
radiating into his left leg.

[50]        
On October 23, 2007, when Mr. Bouchard saw Dr. Surgenor, he complained
of pain radiating down into his left calf and very severe lumbar back pain. For
the first time in her treatment of Mr. Bouchard, Dr. Surgenor noted that
straight leg-raising induced some pain in the lumbar spine. Her impression was
that the plaintiff had suffered a herniated disc. In cross-examination, Dr.
Surgenor testified that she had not seen that severity of low back pain in the
plaintiff before and that it was very possible that the severity of the
plaintiff’s thoracic back pain had masked his low back pain.

[51]        
The frequency of Mr. Bouchard’s visits to Dr. Surgenor increased through
October and November of 2007. The plaintiff resumed chiropractic and
physiotherapy treatments, and was referred for acupuncture, which initially
provided some relief. As Mr. Bouchard’s complaints of severe low back pain and
pain and cramping of his legs continued, Dr. Surgenor prescribed stronger pain
medications, including Oxycet on October 26, and Tramacet, a narcotic pain
killer, on November 1, 2007. She also prescribed Diazepam for muscle spasm
and to assist the plaintiff in sleeping.

[52]        
On October 29, 2007, Dr. Surgenor made a note of her opinion that the
plaintiff’s back pain was secondary to injuries he sustained in the February
26, 2005 motor vehicle accident. She referred the plaintiff to Dr. Chan, a
neurosurgeon to determine whether surgery might relieve his lower back pain.

[53]        
By December 19, 2007, Mr. Bouchard was increasing his consumption of painkillers,
was complaining of pain radiating into his foot and of a cramp in his left
hamstring muscle. He had finished all of his prescribed medications. Dr.
Surgenor prescribed Tylenol 3 with codeine, Percocet, and Naproxsen.

[54]        
Mr. Bouchard was off work from December 2007 until March 2008. During
February 2008, the plaintiff purchased an inversion table to build up his upper
back strength in preparation for his return to work.

[55]        
When Dr. Surgenor saw the plaintiff on March 25, 2008, he had returned
to work, felt positive about restoring his health, but continued to experience
daily back pain. On April 26, 2008, the plaintiff reported that by taking
Endocet, Tylenol, Supeudol and Naproxen, he could perform his daily activities,
but still felt pain.

[56]        
In May and June of 2008, Mr. Bouchard’s symptoms of low back pain and numbness
and cramping in his legs worsened. In June 2008, Dr. Surgenor referred Mr.
Bouchard to the pain clinic at St. Paul’s Hospital. Following that referral, Dr.
Hunt assumed the principal care of Mr. Bouchard, although the plaintiff
continued to see Dr. Surgenor.

[57]        
On July 24, 2008, Dr. Surgenor noted that the plaintiff was no longer
working, and was experiencing sharp pain down his legs and numbness in his feet.
Mr. Bouchard was now “eating” 10 to 12 Endocets and as many Supeudols each
day for pain relief.

[58]        
Between October 2007 and August 2008, Dr. Surgenor referred Mr. Bouchard
to three neurosurgeons, Drs. Chan, Turnbull, and Heran. Neither Dr. Chan nor
Dr. Turnbull recommended surgery. The L4-L5 and L5-S1 discectomies and
foraminotimies performed by Dr. Heran in December 2008 were not successful. Mr. Bouchard
continues to suffer from severe lower back pain, and pain radiating into his
legs.

[59]        
Dr. Rhonda Shuckett , a rheumatologist, saw Mr. Bouchard on May 12,
2010, at the request of plaintiff’s counsel. Based on the history she took from
Mr. Bouchard, her physical examination of the plaintiff and her review of
the MRI reports, Dr. Shuckett diagnosed:

1.       Headaches,
probably cervicogenic in nature, as well as initial neck pain.

2.       Thoracolumbar pain, likely
musculo-ligamentous.

3.       Mechanical
low back pain with disc protrusions and an annular tear in the lower lumbar
spine.

4.       Chronic
pain syndrome and psychosocial issues deriving from events following the
February 26, 2005 motor vehicle accident.

She noted that Mr. Bouchard was on multiple narcotic drugs, and
had suffered from depression.

[60]        
In her opinion, Mr. Bouchard’s soft tissue injuries were, for the most
part, caused by the motor vehicle accident. She believed that the mechanical
low back pain and herniated disc at the L4-L5 level were probably caused by the
motor vehicle accident .

[61]        
In cross-examination, Dr. Shuckett acknowledged that she made an error
in her report in stating that the plaintiff had suffered from pain radiating
down his legs in 2005. However, that error did not change her opinion
concerning the role of the February 26, 2005 motor vehicle accident in the
marked deterioration in the plaintiff’s condition in 2007. Although Dr. Shuckett
agreed that degenerative changes do progress without trauma, she did not agree
that the exacerbation of Mr. Bouchard’s symptoms in October 2007 was simply a
function of his pre-accident degenerative disc disease. Dr. Shuckett agreed
that the longer the time interval between an acute event − in this case
the motor vehicle accident − and the onset of symptoms, the more it calls
into question causation. However, Mr. Bouchard’s lower back had not been
completely asymptomatic before the episode of October 7, 2007. In Dr. Shuckett’s
opinion, it was unlikely that the progression of what she described as  “minimal”
disc degeneration in Mr. Bouchard would spontaneously develop as a disc
protrusion, or that disc degeneration would progress to the point that led to the
episode of severe pain experienced by Mr. Bouchard in October 2007.

[62]        
At the conclusion of her cross-examination, Dr. Shuckett maintained that
there was a “considerable possibility” that the disc herniation at L4-L5 was
caused by the motor vehicle accident.

[63]        
Dr. Hershler is a specialist in physical medicine and rehabilitation who
saw Mr. Bouchard in September 2008 and May 2009. Dr. Hershler provided the
plaintiff with three medical/legal reports, dated September 10, 2008, June 2,
2009 and June 17, 2010.

[64]        
Dr. Hershler provided the following diagnosis in his medical/legal
opinion of September 10, 2008:

Based on the history, the
physical examination and description of the accident, it is my opinion that the
motor vehicle accident on February 26, 2005 caused a pre-existing arthritic or
degenerative condition of the spine to become symptomatic. The accident
probably caused a worsening of the degeneration and likely also led to the tear
in the annulus fibrosis at L4/5 and the disc bulging at L4/5 and L5-S1.

It
is my opinion that the irritation of the nerve roots has led to increased back
pain and the symptoms in the legs, which have prevented Maurice from working in
an appropriate manner. The fact that he had a sudden deterioration in October
2007 is not uncommon. An injury and weakening of the discs can occur and then
unconscious twisting of the back in bed can lead to an acute increase in pain.

[65]        
In his third report, dated June 17, 2010, Dr. Hershler agreed that the
February 26, 2005 accident and Mr. Bouchard’s pre-existing degenerative
condition of the spine were both factors that led to Mr. Bouchard’s symptoms of
October 2007. However, he did not accept that Mr. Bouchard would have become as
symptomatic as he did without the motor vehicle accident. In Dr. Hershler’s
opinion, the motor vehicle accident “was a significant factor in that it led to
both worsening of the degenerative condition and the onset of more aggressive
symptomology”.

[66]        
In cross-examination, Dr. Hershler acknowledged that his neurological
examination of the plaintiff was within normal limits. In Dr. Hershler’s
opinion, spinal degeneration is usually asymptomatic. Trauma, rather that
gradual development of degenerative changes is the most common trigger of
acceleration in the degenerative change and the onset of symptoms. Mr.
Bouchard’s body was rotated and not restrained when the vehicle in which he was
sitting was struck from the rear. In Dr. Hershler’s opinion, Mr. Bouchard’s
body position at the time of the collision put his spine at a higher risk of
injury. Dr. Hershler did not believe it likely that the plaintiff had suffered
a disc injury before February 26, 2005. Mr. Bouchard had been able to work long
hours in difficult positions before the motor vehicle accident. In forming his
opinion, Dr. Hershler relied on Mr. Bouchard’s history of his symptoms and the
plaintiff’s report that following the motor vehicle accident he was 60 percent
as productive.

[67]        
According to Dr. Hershler, the motor vehicle accident caused a weakening
of the disc at L4-L5. In Dr. Hershler’s opinion, two and one-half years was not
an unusually long period of time for the triggering event to manifest the
underlying damage. According to Dr. Hershler, the motor vehicle accident
started a process by which injury to the disc developed over time. Wear and
tear from the plaintiff’s weakened disc and then the further event in October
2007, probably involving an annular tear, resulted in the dramatic worsening of
the plaintiff’s symptoms.

[68]        
Dr. David Hunt,  a specialist in emergency medicine with over 20 years’
experience in the treatment and management of complex pain disorders, prepared
two expert reports for the plaintiff.

[69]        
In his first report dated September 4, 2009, Dr. Hunt opined at page 22:

The sudden acute deterioration
of Mr. Bouchard’s low back condition, with the development of bilateral leg
pain in early October 2007, was commented on by Dr. Hershler in his medical
legal report of September 10, 2008. I would concur that Mr. Bouchard most
probably suffered significant disc injuries to the L4-5 and L5-S1 discs in the
stated motor vehicle accident. However, the L5 and S1 nerve roots were not
initially impacted and consequently, Mr. Bouchard did not complain of
peripheral nerve root symptoms nor did he show peripheral nerve root sign.

However, when Mr. Bouchard
assumed the flexed lumbar sleeping position in early October 2007, this created
significant inter-discal pressure to most likely cause the release of
inflammatory mediators from the already previously injured and weakened L4-5
and L5-S1 discs. Once the inflammatory process was initiated, then the
combination of pressure from edema, pressure from the associated disc
herniations, and ongoing chemical irritation perpetuated his condition with
worsened pain and peripheral nerve root symptons and signs.

[Emphasis in original.]

[70]        
In his second report dated May 28, 2010, Dr. Hunt provided the following
explanation of the plaintiff’s low back condition between the motor vehicle
accident of February 26, 2005, and the significant deterioration in October
2007, at pages 10 and 11:

When an individual is exposed
to the forces associated with a rear-end collision, such as the one Mr.
Bouchard was involved in on February 26, 2005, they may suffer soft tissue
injuries involving the muscles and ligaments of various levels of the spine
(cervical and lower lumbar levels being the most vulnerable). These paraspinal
muscles and ligaments are attached to the individual vertebra at multiple
levels. However, injuries also occur to other soft tissues in this region
namely capsular fibres of the facet joints at multiple levels and the annular
fibres of the intervertebral discs at multiple levels.

It was formerly thought that
all the injury and associated damage occur at the very moment of impact of the
MVC [motor vehicle collision]. However, studies on the pathophysiology of
traumatized intervertebral discs confirm that the process may take place over
time. Initially, the annular fibres of the intervertebral discs are damaged as
a consequence of the forces of the MVC. Some of the annular fibres will be disrupted
outright, however, others may be weakened, but not completely
torn. This process of disrupted and weakened annular fibres may produce early
bulging of the disc. However over time with regular use of the spine or
especially if new forces are applied which suddenly increase intradiscal
pressure, the remaining damaged annular fibres may gradually and/or suddenly
break and this allows nuclear material and the associated inflammatory
agents to either gradually or suddenly push out (herniate). The important
concept is that the disc may herniate post injury at a time considerably
beyond the initial trauma as a consequence of continual wear and tear or a
sudden event like just bending over or assuming some other posture which
increases intradiscal pressure inordinately.

In my experience of treating
hundreds of spine patients – the herniation of a disc is not an all or
nothing phenomenon, but can be delayed for months to years. As there had
been a continuity of low back pain symptoms in Mr. Bouchard’s case
from the time of the MVC in February 2005 to the prolonged period of abnormal
lumbosacral flexion during sleep in October of 2007, this explanation is
certainly plausible.

[Emphasis in
original.]

[71]        
In cross-examination, Dr. Hunt agreed that at the time of the February
26, 2005 motor vehicle accident, Mr. Bouchard had degenerative changes to his
spine, which he described as mild deterioration at L4-L5 and more moderate
deterioration at L5-S1. He explained that the narrowing of the L5-S1 disc
depicted in the June 11, 2005 MRI was a normal sign of degeneration or aging. He
agreed that the narrowing of the disc and loss of disc height results from the
loss of water as a part of normal aging and was not caused by the motor vehicle
accident.

[72]        
Dr. Hunt also agreed that disc bulging is part of the degenerative
process. In Dr. Hunt’s opinion, all of the bulging at L5-S1 may have been there
before the motor vehicle accident, however, the disc herniation at L4-L5 was
likely caused by the motor vehicle accident. Later in his cross-examination, it
was again suggested to Dr. Hunt that the disc bulging at L4-L5 resulted from
degenerative changes. His answer was as follows:

A        Well, what – you’ve missed a step. With the
loss of disc height, increased torsional – – the disc is less capable of
handling torsional stresses and compressive stresses, leading to fissures in
the annulus, and then these little fissures can coalesce into actual tears,
providing a weakness and a route if the person’s subjected to sudden force or a
repetitive force causing disc herniation.

Q       And that’s all part of the degenerative
process?

A        Yes,
it would all be in the process.

[73]        
Dr. Hunt also agreed that the osteophytes shown in the medical imaging
of the plaintiff’s spine, which he described as little extra chunks of calcium
that develop on bone, are part of the degenerative process; that degenerative
changes in the spine may or may not be accompanied by symptoms, and that the
symptoms may come and go; and that Mr. Bouchard did not experience radiating
pain until he suffered neurological impairment in October 2007.

[74]        
Dr. Hunt understood from the history he took from Mr. Bouchard that he
had suffered fluctuating back pain since the motor vehicle accident of February
26, 2005, and that before October 2007, Mr. Bouchard’s shoulder and neck
symptoms were his most significant complaints, rather than lower back pain. However,
Mr. Bouchard told Dr. Hunt that he had ongoing low back pain that was related
to his level of activity from the time of the accident until October 7, 2007,
when the low back pain “took off”.

[75]        
In cross-examination, Dr. Hunt acknowledged that gaps of six months or
more between Mr. Bouchard’s visits to Dr. Surgenor were not consistent with a
long-standing history of low back pain. Dr. Hunt also agreed that the PharmaNet
record, which reveals no prescriptions for Mr. Bouchard for Tylenol #3,
Naprosyn or Flexoril between the spring of 2005 and September 2007, was not
consistent with a history of low back pain. However, Dr. Hunt said that the
absence of pain medication could be consistent with an injury to the disc where
the initial injuries were not sufficient to create a lot of pain, except with
increased activity, and which the plaintiff was able to manage conservatively
until he put his disc into severe fluxion in the incident of October 2007. However,
Dr. Hunt also accepted that it was possible that the disc simply continued to
deteriorate and that the motor vehicle accident was simply one of many factors
at play.

[76]        
While Dr. Hunt agreed that it was possible that Mr. Bouchard’s symptoms
were the result of a progression of degenerative changes, he was sure that the
accident had a significant impact upon that progression. Dr. Hunt agreed with defence
counsel that Mr. Bouchard’s symptoms were consistent with either a soft tissue
injury to his low back or damage to the disc.

[77]        
Defence counsel also cross-examined Dr. Hunt on his opinion that the
episode in October of 2007 represented an acute inflammatory change superimposed
on an already chronic pain condition. Dr. Hunt testified that his information
about the “already chronic pain condition” came from Mr. Bouchard and from his
review of Dr. Surgenor’s clinical records. With respect to the reliability of
the medical history from Mr. Bouchard, Dr. Hunt testified that most of his
patients tell him the truth.

[78]        
With respect to Mr. Bouchard’s future needs for medication, Dr. Hunt
advised that the plaintiff was prescribed Risperidone, a neuroleptic, for the
treatment of his bi-polar disorder, but that he will not need to take that
medication for life. Mr. Bouchard had already stopped taking Gabapentin. Dr.
Hunt also thought the plaintiff was no longer on anti-depressants. He explained
that if a patient with bi-polar disorder was not on a mood-stabilizer,
anti-depressants may actually trigger a bi-polar episode. Mr. Bouchard is no
longer prescribed cannabinoids due to his manic reaction to those medications.

[79]        
When Mr. Bouchard was discharged from the psychiatric assessment ward at
St. Paul’s Hospital, his medications included methadone and hydromorphone for
pain, Baclofen, a muscle relaxant, and Topimax and Risperidone in place of an
anti-depressant.

[80]        
The defendants rely upon two expert reports of Dr. Andrew Hepburn, an
orthopaedic surgeon, in support of their position that the plaintiff’s low back
complaints were caused by pre-existing degenerative conditions, and are
unrelated to the February 26, 2005 motor vehicle accident.

[81]        
 Dr. Hepburn conducted independent medical examinations of Mr. Bouchard for
the defendants on April 19, 2007, and then again on July 16, 2009, about seven
months after the plaintiff’s spinal surgery. On April 19, 2007, Mr. Bouchard told
Dr. Hepburn that shortly after the 2005 motor vehicle accident he had
developed sharp pain in his low back. At the time of Dr. Hepburn’s first
examination, Mr. Bouchard’s symptoms included both pain in the lower
lumbar area and sharp pains down to the buttock at times, as well as sharp pain
between his shoulder blades and pain and numbness in his upper back.

[82]        
Dr. Hepburn noted that Mr. Bouchard seemed to have disc changes through
the L-5 and lumbosacral level, but on examination, found no indication of nerve
root impairment in his lower extremities. On his first examination, Dr. Hepburn
described the plaintiff’s range of lumbar movement as “rather good”. Dr.
Hepburn’s overall impression was that the plaintiff’s back pain was probably
mechanical and was likely related to his physical deconditioning, for which he
recommended weight reduction, swimming and core strengthening exercises.

[83]        
In cross-examination, Dr. Hepburn acknowledged that pain in the lower
back going down to the thigh or buttock, but not radiating down to the lower
leg could be discogenic pain, meaning pain from a disc. He also agreed that it
is very difficult to tell the difference between discogenic pain and mechanical
back pain.

[84]        
 In his first report, Dr. Hepburn said this respecting causation:

As
regards causation, it appears that though Mr. Bouchard may have had
previous symptoms in relation to his spine, these had subsided by about 2002 or
2003, and his current symptomotology appears therefore to most likely relate to
his involvement in this accident, and perhaps also exacerbated by
deconditioning occurring in the last two years.

[85]        
In Appendix D to his report of April 19, 2007, Dr. Hepburn sets out Mr. Bouchard’s
past medical history. Mr. Bouchard told Dr. Hepburn that he developed extremely
sharp lower back pain following his 1998 motor vehicle accident, and that by
2002 he had made a full recovery from that accident. Dr. Hepburn also
reported that the plaintiff understood that investigations performed following the
1998 motor vehicle accident had shown a hernia at L4-L5. The medical record
does include an x-ray study of the plaintiff’s lumbar spine dated July 20, 2000,
in which the radiologist found mild disc space narrowing at L4-S1, but found
that Mr. Bouchard’s lumbar spine was otherwise unremarkable, and that both sacroiliac
joints were normal. The radiologist’s impression was early degenerative disc
disease.

[86]        
There is no radiology report or other admissible expert medical evidence
confirming that the plaintiff had suffered a herniated disc prior to the
February 26, 2005 accident.

[87]        
Dr. Hepburn provided a second report dated October 27, 2009, about 10
months after Mr. Bouchard’s spinal surgery. At that time, Mr. Bouchard was
complaining of a constant burning in both legs, sharp pain in his low back, as
well as a constant dull pain in the low back, extending into the upper back and
toward the left hamstring. He was using a cane, and only walked short distances.
To cope with his pain, Mr. Bouchard was taking methadone, oxycontin and
oxycocet, as well as Nabalone for cramps, Nortriptyline and Gabapentin. The
plaintiff was also using marijuana for relief for the burning in his legs. Mr.
Bouchard’s neck was asymptomatic and his upper back symptoms had largely resolved.
On examination, the plaintiff’s range of lumbar movement was limited. Testing
for nerve root tension induced some back pain.

[88]        
Dr. Hepburn referred to the CT scan of the plaintiff’s lumbar spine
performed on November 27, 2007, and an MRI scan performed on January 18, 2008. The
CT scan showed mild posterior disc space narrowing and disc bulging at L4-L5. At
L5-S1, the CT scan revealed mild disc space narrowing, moderate disc bulging
and the presence of osteophytes that were compressing the nerve roots at L5 and
S1. The radiologist’s impression was “spondylosis at L4-L5 and L5-S1, with
moderate bilateral osseous compression of the exiting L5 nerve roots
bilaterally and at least moderate thecal sac compression.”

[89]        
The MRI scan of January 18, 2008, showed mild disc space narrowing and
moderate disc drying at L4-L5, and moderate disc space narrowing and moderate
disc drying at L5-S1. The radiologist, Dr. Fenton, identified disc protrusion
and an annular tear at L4-L5 and a protruding disc at L5-S1. His impression was
lower lumbar spondylosis with super imposed disc protrusions at L4-L5 and L5-S1.
Dr. Fenton also noted that the “S1 nerve roots are displaced by focal
disc/osteophyte complex without appreciable thickening of the actual nerve
root.”

[90]        
In his direct examination, Dr. Hepburn attributed the disc bulging to
the degenerative process. He said that most people’s discs degenerate with time.
As discs dry out, the vertebrae tend to collapse a little, causing the discs to
bulge. Dr. Hepburn said that the bulge in the disc was the first stage. Next,
the disc starts to protrude and, it does, the annular ligament, a ring around
the vertebrae, stretches. When the disc at L4-L5 ruptures, material extrudes,
and pinches  the nerves to the leg, inducing symptoms of sciatica. In Dr.
Hepburn’s view, herniation of the disc was the final step in a sequential
process of degeneration.

[91]        
In his second report, Dr. Hepburn attached less significance to the 2005
accident as a cause of Mr. Bouchard’s injuries than he did in his first report.
Dr. Hepburn opined at p. 9 that:

At
worst, the collision may have been one episode in a chain of episodes that
seemed to date back to April 1998 when Mr. Bouchard was seen at the Maple
Medical Clinic following a M.V.A. on 10^th April, 1998.

[92]        
In Dr. Hepburn’s opinion, the motor vehicle accident of February 26,
2005 may have been one factor among many necessitating the surgery performed by
Dr. Heran in December 1998. In his view, the episode of October 2007
appeared to have been a large contributing factor. Additionally, Dr. Hepburn
thought that because the plaintiff had chronic disc degeneration at the lumbosacral
level when he was 20, it was likely that he would ultimately have had the
severe back and left leg pain that led to his surgery.

[93]        
In cross-examination, Dr. Hepburn was argumentative and, at times,
dismissive of the opinions of the other experts. He did agree that most people
at age 30 or 40 will have some disc degeneration and that many will not develop
symptoms. He also agreed that the rate of degeneration is variable and that the
course of disc degeneration is unpredictable.

[94]        
In cross-examination, Dr. Hepburn testified that the 1998 motor vehicle
accident was likely involved in the changes to Mr. Bouchard’s lumbosacral disc,
which made it more liable to injury.

[95]        
Initially, when pressed, Dr. Hepburn only conceded that it was
“possible” that the February 26, 2005 accident was involved in changes to Mr.
Bouchard’s discs at L4-L5 and L5-S1. Ultimately, however, Dr. Hepburn agreed
that the accident was a factor in the chain of events that led to Mr. Bouchard
having his surgery.

[96]        
He also agreed that of the three motor vehicle accidents, the 2005
accident seemed to be the most significant.

DISCUSSION AND ANALYSIS

Causation

[97]        
In Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333 at paras. 21-23,
the Supreme Court of Canada stated the test for causation:

[21]      First, the basic test for determining causation
remains the “but for” test. This applies to multi-cause injuries. The plaintiff
bears the burden of showing that “but for” the negligent act or omission of
each defendant, the injury would not have occurred. Having done this,
contributory negligence may be apportioned, as permitted by statute.

[22]     This fundamental rule has never been displaced and
remains the primary test for causation in negligence actions. As stated in Athey
v. Leonati, at para. 14, per Major J.,  “[t]he general, but not conclusive,
test for causation is the ‘but for’ test, which requires the plaintiff to show
that the injury would not have occurred but for the negligence of the
defendant”. Similarly, as I noted in Blackwater v. Plint, at para. 78, 
“[t]he rules of causation consider generally whether ‘but for’ the defendant’s
acts, the plaintiff’s damages would have been incurred on a balance of
probabilities.”

[23]   The “but for” test
recognizes that compensation for negligent conduct should only be made “where a
substantial connection between the injury and the defendant’s conduct” is
present. It ensures that a defendant will not be held liable for the
plaintiff’s injuries where they “may very well be due to factors unconnected to
the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327,
per Sopinka J.

[98]        
As the Supreme Court of Canada explained in Athey v. Leonati,
[1996] 3 S.C.R. 458 at para. 17:

[17]      It is not now necessary, nor has it ever been, for
the plaintiff to establish that the defendant’s negligence was the sole
cause of the injury. There will frequently be a myriad of other background
events which were necessary preconditions to the injury occurring. To borrow an
example from Professor Fleming (The Law of Torts (8th ed. 1992) at p.
193), a “fire ignited in a wastepaper basket is . . . caused not only by the
dropping of a lighted match, but also by the presence of combustible material
and oxygen, a failure of the cleaner to empty the basket and so forth”. As long
as a defendant is part of the cause of an injury, the defendant is
liable, even though his act alone was not enough to create the injury. There is
no basis for a reduction of liability because of the existence of other
preconditions: defendants remain liable for all injuries caused or contributed
to by their negligence.

[Emphasis
in original.]

[99]        
At para. 23, the Court in Athey explained that apportionment
between tortious and non-tortious causes is contrary to the principles of tort
law because the defendant would escape full liability even though he or she
caused or contributed to the plaintiff’s entire injuries. The plaintiff would
not be adequately compensated because he or she would not be placed in the same
position that he or she would have been in absent the defendant’s negligence. The
Court held that where there is a single indivisible injury, any defendant found
to have negligently caused or contributed to the injury will be fully liable
for it: at para. 25.

[100]     It follows
that, if Mr. Bouchard’s disabling low back pain was caused or contributed to by
the actions of the defendant Naudi, the plaintiff is entitled to recover all of
the damages attributable to that injury from the defendants, regardless of
whether there are other tortious or non-tortious causes that contributed to his
injury. If the motor vehicle accident of February 26, 2005, caused or
contributed to the severe exacerbation of the plaintiff’s low back problem that
occurred on October 2007, then the defendants are liable for the plaintiff’s
damages.

[101]    
Finally, in Bradley v. Groves, 2010 BCCA 361, leave to appeal
ref’d 2011 CarswellBC 890, the Court said this at para. 37:

[37] We are also unable to accept
the appellant’s submission that “aggravation” and “indivisibility” are
qualitatively different, and require different legal approaches. If a trial
judge finds on the facts of a particular case that subsequent tortious action
has merged with prior tortious action to create an injury that is not
attributable to one particular tortfeasor, then a finding of indivisibility is
inevitable. That one tort made worse what another tort created does not
automatically implicate a thin or crumbling skull approach (as in Blackwater),
if the injuries cannot be distinguished from one another on the facts. Those
doctrines deal with finding the plaintiff’s original position, not with
apportioning liability. The first accident remains a cause of the entire
indivisible injury suffered by the plaintiff under the “but for” approach to
causation endorsed by the Supreme Court of Canada in Resurfice Corp. v.
Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333. As noted by McLachlin C.J.C. in
that case, showing that there are multiple causes for an injury will not excuse
any particular tortfeasor found to have caused an injury on a “but-for” test,
as “there is more than one potential cause in virtually all litigated cases of
negligence” (at para. 19). It may be that in some cases, earlier injury
and later injury to the same region of the body are divisible. While it will
lie for the trial judge to decide in the circumstances of each case, it is
difficult to see how the worsening of a single injury could be divided up.

[102]     I find
that Mr. Bouchard has met the “but for” test and has established on the balance
of probabilities that both the injuries to his neck, upper back, and mid-back,
and the injuries to his lower back were caused by the motor vehicle accident of
February 26, 2005. But for the negligence of Mr. Naudi, the plaintiff would not
have suffered those injuries.

[103]     With
respect to the soft tissue injuries to the plaintiff’s neck, upper back, and
mid-back, the defendants do not dispute that those injuries would not have
occurred but for the negligence of Mr. Naudi.

[104]     With
respect to Mr. Bouchard’s lower back injuries, I accept the opinions of Drs.
Hershler, Hunt and Shuckett that the February 26, 2005 accident was a
significant factor in the weakening and ultimate herniation of Mr. Bouchard’s L4-L5
disc. The defendants have raised significant issues concerning the pre-existing
degenerative condition affecting Mr. Bouchard’s lumbar spine, and the two and a
half year gap between the motor vehicle accident and the sudden deterioration
of the plaintiff’s low back symptoms in October 2007. However, for the reasons
that follow, I find it more probable than not that injuries to Mr. Bouchard’s
low back would not have occurred but for the February 26, 2005 accident.

[105]     Mr.
Bouchard did have pre-existing degenerative changes to his lumbar sacral spine,
which were first diagnosed in 2000. He had also sustained previous injuries to
his lower back, particularly in the motor vehicle accident of April 19, 1998. However,
he had experienced no low back symptoms since 2003.

[106]     I accept
Dr. Hershler’s opinion that the February 26, 2005 motor vehicle accident and
Mr. Bouchard’s pre-existing degenerative condition were both contributing
factors to the onset of severe and continuing low back pain in October 2007. As
Dr. Hershler explained, trauma, rather than gradual degeneration, is the most
common trigger for the acceleration of degenerative changes. The position of
Mr. Bouchard’s body at the time of impact placed him at a higher risk for
injury than if he had been seated in the vehicle facing forward and restrained
by a seatbelt.

[107]     Both Dr.
Hershler and Dr. Hunt agreed that two and a half years was not an unusually
long time for a spinal injury to manifest itself. I accept Dr. Hershler’s
evidence that the weakening of the L4-L5 disc in the motor vehicle accident, and
subsequent wear and tear combined with the event of October 2007 resulted in
the sudden deterioration of the plaintiff’s symptoms.

[108]     Dr. Hunt
shared Dr. Hershler’s opinion that the plaintiff’s disc was injured in the
motor vehicle accident. He explained that a weakened disc may herniate as a
result of continuing wear and tear combined with intradiscal pressure of the
kind that occurred when the plaintiff fell asleep with his lower back flexed in
early October 2007. I accept the evidence of Dr. Hunt, who has over 20 years’
experience in the treatment of such cases, that herniation of a weakened disc
may be delayed for months or even years.

[109]     Although
Dr. Hunt agreed that degenerative changes in the plaintiff’s lumbar spine were
a factor in the disc herniation, he maintained in cross-examination that he was
sure the motor vehicle accident had a significant impact on the progression of
the plaintiff’s degenerative changes. Dr. Hunt agreed in cross-examination that
it was possible that the disc continued to degenerate and that the motor
vehicle accident was simply one of many factors at play. However, he remained
of the opinion that the motor vehicle accident had a significant impact on the
progression of events leading to the disc herniation. Dr. Hunt’s opinion makes
sense when one considers the evidence that at the time of impact, Mr.
Bouchard’s body was in a position where he was particularly vulnerable to
injury to his low back. Further, all of the experts, including Dr. Hepburn,
considered the 2005 accident to be the most significant of the plaintiff’s
three motor vehicle collisions.

[110]     I find
that the trauma caused by the February 26, 2005 accident weakened the L4-L5
disc, exacerbating and accelerating the plaintiff’s pre-existing degenerative
changes. Thus, I conclude, that the plaintiff’s low back injury, including the
disc herniation and its consequences, was an indivisible injury.

[111]     Although
most of Mr. Bouchard’s complaints of back pain recorded in Dr. Surgenor’s
clinical records until October 2007 related to his mid back, upper back and
neck, Dr. Surgenor’s clinical notes do contain references to lower back pain
subsequent to the motor vehicle accident and preceding the sudden deterioration
in the plaintiff’s lower back in October 2007. Mr. Bouchard received
chiropractic treatments in May 2006 for his low back pain. Furthermore, when
Dr. Hepburn took Mr. Bouchard’s history in April 2007, the plaintiff
recalled having sharp low back pain after the accident. His symptoms in April
2007 included low back pain.

[112]     As the
defendants point out, there were gaps between August 2005 and January 2006, May
2006 and January 2007, and April and September 2007 in the plaintiff’s visits
to Dr. Surgenor, and a period of about two years when Mr. Bouchard did not
renew his prescriptions for painkillers and muscle relaxants.

[113]    
Mr. Bouchard acknowledged that there were times when his low back
symptoms improved. The plaintiff saw Dr. Surgenor regularly during the six
months following the accident. He received the chiropractic treatments and
physiotherapy recommended by his family physician, although by 2006 he found
that they only provided temporary relief. In May 2006, the Insurance
Corporation of British Columbia ceased funding Mr. Bouchard’s therapies. The
plaintiff continued to perform the exercises recommended by Dr. Surgenor. I
find that from the time of the accident through October 2007, the plaintiff saw
Dr. Surgenor when he thought medical treatment would benefit him, or when there
were significant changes in his symptoms. As Gerow J observed in Meyers v.
Leng, 2006 BCSC 1582 at para. 50:

… If continuous medical
treatment can cure you, or make you feel better, then it is worthwhile to
attend on a regular basis. If it cannot, there really is no point in taking the
doctor’s time. The purpose of a seeing a doctor is not to create a chronicle of
complaints for the purpose of proving that you have ongoing pain from an injury
arising from a motor-vehicle accident [sic] …

[114]     Further, during
2006 and 2007, the plaintiff made a determined effort to keep working, and was
under some financial pressure to do so. Mr. Bouchard found that painkillers
affected the concentration critical to his work. It is probable that there were
periods of time prior to October 2007 when Mr. Bouchard was able to cope with
his low back pain without recourse to painkillers, and did so in order to avoid
the negative side effects of these medications.

[115]     In his
report of April 19, 2007, Dr. Hepburn agreed that the symptoms the plaintiff
was then experiencing, which included intermittent low back pain were most
likely related to the February 26, 2005 motor vehicle accident. In
cross-examination, Dr. Hepburn acknowledged that motor vehicle accident was the
most significant of the plaintiff’s three accidents, and was a factor in the
plaintiff’s low back injuries.

[116]     Dr. Shuckett
also thought the plaintiff’s low back pain and herniated disc were caused by
the motor vehicle accident. In cross-examination, she maintained that there was
“a considerable possibility” that Mr. Bouchard’s disc hernation was caused by
the motor vehicle accident.

[117]     I find
that the motor vehicle accident was a significant factor contributing to the
herniation of the plaintiff’s disc at L4-L5, and the development of the
plaintiff’s symptoms of severe and disabling lower back pain, and that there is
a substantial connection between Mr. Bouchard’s low back injuries and the motor
vehicle accident.

Adverse inference regarding medical evidence

[118]     The
defendants invite the court to draw an adverse inference from the failure of
the plaintiff to call Dr. Heran, the neurosurgeon who operated on Mr. Bouchard
in December 2008. The defendants submit that Dr. Heran was in the best position
to provide opinion evidence concerning the extent of the degeneration of the
plaintiff’s lumbar spine, and an opinion on the issues of causation and future
treatment. They say that the court should infer from the plaintiff’s failure to
call Dr. Heran that his evidence would have been a detriment to Mr. Bouchard’s
case.

[119]    
In Buksh v. Miles, 2008 BCCA 318 at paras. 31-33 and 35, Saunders
J.A., for the Court, discussed the factors the court should consider in
determining whether an adverse inference may reasonably be drawn from the
failure of a party to call a medical witness:

[31]      The general proposition long applied in British
Columbia, stated by Mr. Justice Davey in Barker v. McQuahe (1964), 49
W.W.R. 685 (B.C.C.A.), is that an inference adverse to a litigant may be drawn
if, without sufficient explanation, that litigant fails to call a witness who
might be expected to give supporting evidence. Further, said Mr. Justice Davey
at 689, a plaintiff seeking damages for personal injuries “ought to call all
doctors who attended him in respect of any important aspect of the matters that
are in dispute, or explain why he does not do so”.

[32]     It seems to me that the tactic of asking for an
adverse inference is much over-used in today’s legal environment, and requires,
at the least, a threshold examination by the trial judge before such an
instruction is given to the jury.

[33]      A judge trying a case with a jury is bound to
instruct the jury as to the applicable law, and thereby to assist the jury in
its consideration of the evidence and determination of the facts. Whether an
adverse inference is drawn from failure to call a witness is a question for the
trier of fact. In this case, I cannot say the trial judge erred in the content
of the instruction she gave the jury on the matter of adverse inferences. However,
it bears reminding that the delivery of medical care is not now as it was in
1964 when Mr. Justice Davey made his comments in Barker. …

…

[35]      In this environment,
and bearing in mind the position of a lawyer bound to be truthful to the court,
it seems to me there is a threshold question that must be addressed before the
instruction on adverse inferences is given to the jury:  whether, given the
evidence before the court, given the explanations proffered for not calling the
witness, given the nature of the evidence that could be provided by the
witness, given the extent of disclosure of that physician’s clinical notes, and
given the circumstances of the trial (e.g., an initial agreement to introduce
clinical records that work contrary to the inference, or incorporation of that
witness’s views or observations in the report of a witness called by the other
side) a juror could reasonably draw the inference that the witness not called
would have given evidence detrimental to the party’s case. … In this case, in
my view, the judge herself should have heard the explanations, considered the
degree of disclosure of that witness’s files and the extent of contact between
the party and the physician, received submissions and determined whether a
reasonable juror could draw the inference sought before giving the instruction
to the jury for its consideration in its fact finding role. If not, the
instruction had no place in her charge to the jury.

[120]     In Djukic
v. Hahn, 2006 BCSC 154 at para. 60, Mr. Justice Josephson declined to draw
an adverse inference from the plaintiff’s failure to call three physicians who
she had not consulted on a regular basis. In reaching that decision, Mr.
Justice Josephson took into account the fact that both parties had produced “volumes
of medical evidence from a number of doctors”; that the complete clinical
records of the three doctors were disclosed to the defence; that those records
were considered in the opinions of doctors whose reports were before the court;
and that it was open to the defence to have interviewed and called the three
doctors.

[121]     Here,
there has been full disclosure of Dr. Heran’s consultation reports and his
operative procedure report. Those records were available to the defendant when
Dr. Hepburn prepared his second report of October 27, 2009. It was open to the
defendants to interview and call Dr. Heran if they chose to do so. Furthermore,
in my view, Dr. Hunt, whose practice is devoted to the treatment of patients
with chronic pain, and who was directly involved in the ongoing testing, management,
and treatment of the plaintiff’s symptoms from October 2008 through May 2010,
was in a better position than Dr. Heran to provide an opinion on the extent of
the plaintiff’s disability and his requirements for future care. Finally, I
also take into account the explanation of counsel for the plaintiff that
obtaining an expert report from Dr. Heran would have put Mr. Bouchard to
additional expense, and would have involved yet another review of all of the
reports and clinical records of those doctors who did testify at trial. For all
of these reasons, I decline to draw an adverse inference against the plaintiff.

[122]     I conclude
that there is no basis to infer that the plaintiff chose not to call Dr. Heran
because his evidence would have been detrimental to Mr. Bouchard’s case.

Should
the plaintiff’s damages be reduced to account for any measurable risk that the
pre-existing degenerative condition would have detrimentally affected Mr.
Bouchard in any event of the accident?

[123]     In Athey
at para. 35, the Supreme Court of Canada held that “if there is a measurable
risk that the pre-existing condition would have detrimentally affected the
plaintiff in the future, regardless of the defendant’s negligence, then this
can be taken into account in reducing the overall award.”  The Court explained
that this is consistent with the general rule that the plaintiff must be
returned to his original position, with all of its risks, rather than to a
better position.

[124]    
In T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670
at para. 48, the Honourable Mr. Justice Smith, writing for the Court, stated:

[48] … Whether manifest or not,
a weakness inherent in the plaintiff that might realistically cause or
contribute to the loss claimed regardless of the tort is relevant to the
assessment of damages. It is a contingency that should be accounted for in the
award. Moreover, such a contingency does not have to be proven to a certainty.
Rather, it should be given weight according to its relative likelihood.

[125]    
Here, the defendants submit that if the plaintiff establishes on the
balance of probabilities that the February 26, 2005 motor vehicle accident
caused his injuries, his damages should be reduced by 40 percent to take into
account the measurable risk that Mr. Bouchard’s pre-existing degenerative
condition would have detrimentally impacted him at some point, even if the
motor vehicle accident had not occurred. The defendants rely upon Sanders v.
Janze, 2009 BCSC 1059.

[126]     In Sanders,
the plaintiff suffered from neck and back pain following a motor vehicle
accident that occurred in 2002. She underwent one surgery for her cervical
spine and three operations for her lumbar spine. Six years before the motor
vehicle accident, Ms. Sanders had undergone a discetomy and fusion at the C4-C5
levels of her cervical spine. She was still recovering from her pre-accident
injuries at the time of the motor vehicle accident. The Honourable Mr. Justice
Butler found that there was a measurable risk that the plaintiff would have
suffered serious problems with both her neck and low back if the accident had
not occurred. After finding that the risk that the cervical spine would have
developed serious problems absent the accident was much greater than 50
percent, and the risk that the lumbar spine would have developed serious
problems was less than 40 percent, the court, after taking all of the evidence
into account, found that the percentage discount to apply to the damage awards in
that case was 40 percent.

[127]     Here, Mr.
Bouchard had a pre-existing degenerative condition of his lower back, which,
when first detected in 2000, involved mild disc space narrowing at L5-S1. Dr.
Hunt agreed that the MRI of June 11, 2005, showed signs of mild deterioration
at L4-L5 and more moderate deterioration at L5-S1. While Dr. Hunt thought the
impact of the accident had a significant impact on the progression of the
degenerative changes to the plaintiff’s lumbar spine, he agreed that it was
possible that Mr. Bouchard’s disc could simply have continued to deteriorate as
part of the degenerative process that was already in play in his back.

[128]      The CT
scan of November 27, 2007, and the MRI report of January 2008, also showed
evidence of the degenerative process, including the presence of osteophytes
compressing the S1 nerve roots.

[129]     Although
Dr. Hepburn agreed in cross-examination that the February 26, 2005 collision
was one factor in the chain of events leading to Mr. Bouchard’s disc surgery,
in his opinion the plaintiff’s chronic disc degeneration at the lumbosacral
level would ultimately have caused the plaintiff to experience the severe low
back pain he now suffers.

[130]     In my
view, the defendant has established that there was a measurable risk that the
degenerative condition of Mr. Bouchard’s lumbar spine would have detrimentally
impacted the plaintiff absent the accident. Both the pre-existing degenerative
condition of the plaintiff’s lumbar spine and the previous injury to the lumbar
spine sustained in the 1998 motor vehicle accident made the plaintiff more
vulnerable to injury to his lower back.

[131]     Here,
taking into account all of the evidence, and bearing in mind that there was no
measurable risk that the plaintiff would have suffered his upper back and neck
injuries absent the accident, but a very significant risk that he would have
gone on to suffer serious low back problems, I find that the appropriate
percentage discount to apply to the damage awards is 40 percent.

DAMAGES

Non-pecuniary damages

[132]     As a
result of the February 26, 2005 accident, Mr. Bouchard sustained soft tissue
injuries to his mid-back, upper back, shoulders and neck, which caused him
significant pain and intermittently prevented him from work during the two and
a half years following the accident.

[133]     Since
October 2007, Mr. Bouchard’s low back has been the predominant source of his
pain and suffering. I find that by 2008, Mr. Bouchard’s symptoms of mid back,
neck pain, and occasional numbness in his shoulders were largely resolved. I
note that when Dr. Hunt examined Mr. Bouchard in October 2008, the focus of his
examination, and his objective findings of reduced ranges of motion and pain on
testing all related to the plaintiff’s lumbar spine. When Dr. Shuckett
examined the plaintiff in May 2010, she found that he had good range of motion
in his neck and shoulders.

[134]     While Mr.
Bouchard’s mid back and neck injuries are resolved, the low back injuries he suffered
have altered his life. In February 2005, the plaintiff was building a
successful career as a special effects technician, whose skills in the design
and construction of electronic devices were in high demand in the film industry.
Following the motor vehicle accident, Mr. Bouchard lost about two months’ work as
a result of his injuries. The plaintiff’s back injuries also caused him to turn
down work in January, February, March and June of 2007, and to lose a further
three months’ work between December 2007 and March 2008. Since July 2008, Mr. Bouchard’s
severe low back pain has disabled him from working as a special effects
technician entirely, and the plaintiff has been unemployed.

[135]     Before the
accident, Mr. Bouchard assisted his wife with household chores, did home
renovation projects, and participated in various physical activities, including
hiking, fishing and camping trips. Mr. Bouchard is no longer capable of
performing heavy physical tasks and relies upon his wife, from whom he has now
separated, for assistance with the cleaning and upkeep of the apartment where
he now resides alone.

[136]     The
plaintiff is no longer physically active. He relies upon a cane and is only
capable of walking short distances. He cannot engage in active physical play
with his young children. He continues to experience daily pain in his low back
and intermittently suffers from pain radiating into his lower legs. The range
of movement in his lumbar spine is restricted. Mr. Bouchard controls his pain
through the use of both narcotic and non-narcotic painkillers.

[137]     The
plaintiff who was formerly outgoing with a wide range of interests, is now
preoccupied with his low back pain, reclusive, and has few interests other than
music. Emotionally, he suffers from frustration and anxiety as a result of his
inability to support himself and his family.

[138]     Mr.
Bouchard’s chronic pain, frustration, and anxiety all contributed to the
breakdown of his marriage, and his separation from his wife.

[139]     Mr.
Bouchard continues to suffer from chronic pain syndrome as a result of the
February 26, 2005 accident. His sleep and cognitive functions have been
impaired by his chronic pain and the medications he takes to control that pain.

[140]     Mr.
Bouchard, who is still a young man, has a prognosis that is far from promising.
Despite the surgery performed in December 2008, he is likely to continue to
suffer from severe low back pain and intermittent pain and cramping in his legs
for the foreseeable future.

[141]     The
plaintiff is permanently disabled from performing his former work as a special
effects technician on either a full-time or part-time basis. In Dr. Hershler’s
opinion, which is shared by the occupational therapists who have assessed the
plaintiff’s work capacity, even if Mr. Bouchard were able to re-train, his
ability to work in a competitive environment would be limited and would require
part-time employment in a position that gave him some control over his posture
and activity levels.

[142]     The
plaintiff submits that an award of non-pecuniary damages in the amount of
$225,000 is appropriate compensation for Mr. Bouchard’s pain, suffering, loss
of enjoyment of life and loss of amenities. For their part, the defendants
submit that if, as is the case, the court finds that the February 26, 2005
accident caused Mr. Bouchard’s severe low back pain, then non-pecuniary
damages should fall within the range of $100,000 to $125,000.

[143]     Counsel
for the plaintiff referred to Boyd v. Harris, 2004 BCCA 146, and Bransford
v. Yilmazcan, 2010 BCCA 271. In Boyd, the Court of Appeal upheld a
jury’s non-pecuniary award of $225,000 to a 36-year-old plaintiff who suffered
a fractured neck and permanent spinal cord injury. In my view, the injuries
suffered by the plaintiff in Boyd were more serious than those sustained
by Mr. Bouchard. In Boyd, the plaintiff suffered a fractured neck and a
permanent spinal cord injury. There was expert evidence that the plaintiff had
suffered accelerated disc degeneration at multiple levels of his spine as a
result of the accident.

[144]     In Bransford,
a jury had awarded $385,000 for non-pecuniary damages to a 26-year-old female plaintiff
who suffered from thoracic outlet syndrome as the result of a motor vehicle
accident. Although the trial judge reduced the award of non-pecuniary damages
to the then current maximum of $327,350, the Court of Appeal concluded that the
award of non-pecuniary damages was sufficiently anomalous to warrant appellate intervention,
and substituted an award of $225,000 for this head of damage.

[145]     Counsel
for the plaintiff also referred to Prasad v. Sedivy, 2008 BCSC 443,
where the 36-year-old plaintiff suffered facial lacerations, soft tissue
injuries to his neck and back, a mild concussion, chronic pain syndrome,
depression and cognitive deficits as a result of a motor vehicle accident. He
was able to return to work, in a reduced capacity, as a clerk in an IGA store,
but no longer had the potential to be a manager. He was awarded non-pecuniary
damages of $135,000.

[146]     In Ayoubee
v. Campbell, 2009 BCSC 317, the plaintiff suffered a disc herniation at L5/S1,
but continued to work full-time and took only non-prescription pain medications.
The plaintiff received $100,000 for non-pecuniary damages. His injuries were
less severe than those sustained by Mr. Bouchard.

[147]     I have
also considered the authorities on non-pecuniary damages cited by counsel for
the defendants, including Djukic v. Hahn, 2006 BCSC 154, aff’d 2007 BCCA
203; Gill v. Probert, [1999] B.C.J. No. 2436 (S.C.), aff’d 2001 BCCA 331;
Hicks v. GMAC Leaseco Limited et al, 2001 BCSC 1091; Kosugi v.
Krueger, 2007 BCSC 278; Sanders; and Smaill v. Williams, 2010
BCSC 73.

[148]     In Hicks,
the court assessed non-pecuniary damages of $35,000 for the plaintiff’s low
back injuries, which were significantly less severe than those sustained by Mr.
Bouchard. While Ms. Hicks suffered some impairment of her functionality, unlike
Mr. Bouchard, she was not disabled by her injuries.

[149]     In Djukic,
a 37-year-old female plaintiff with a pre-existing degenerative condition
suffered an L4-L5 disc herniation which the court found was directly and causally
linked to both motor vehicle accidents in issue. Discectomy surgery alleviated
some but not all of the plaintiff’s severe pain. The court assessed
non-pecuniary damages at $125,000.

[150]     The court
in Gill awarded non-pecuniary damages of $110,000 to a 29-year-old
plaintiff who suffered injuries to his neck and a disc herniation at L5-L6
which left him with ongoing pain and permanently disabled him from performing
heavy work or strenuous activities, and resulted in emotional consequences
including the development of chronic pain syndrome, depression and anxiety.

[151]     In Kosugi,
a 39-year-old physically active female plaintiff who suffered a disc herniation
that required surgery, depression, and chronic low back pain, that left her
partially disabled, received non-pecuniary damages of $110,000.

[152]     In Sanders,
the plaintiff who had suffered injuries to both her cervical and lumbar spine,
experienced daily pain in her low back, neck and shoulders, and was permanently
partially disabled by her injuries, was awarded $150,000 for non-pecuniary
damages.

[153]     In Smaill,
a 43-year-old plaintiff who suffered fractures of the transverse processes at
L3 and L4 and back pain from previously asymptomatic disc protrusions as a
result of two motor vehicle accidents, received non-pecuniary damages of
$100,000. The court found that although the plaintiff suffered pain from his
physical injuries, he was not entitled to any damages for emotional suffering
and depression, which were pre-existing conditions that had manifested
themselves before the motor vehicle accidents. Here, Mr. Bouchard has developed
chronic pain syndrome and suffers from the frustration of not being able to
pursue his former career as a result of the February 26, 2005 accident.

[154]     Although
Dr. Surgenor referred Mr. Bouchard to a psychiatrist in early 2007, the
plaintiff chose not to attend. Mr. Bouchard has not pleaded a claim for damages
for depression. While Mr. Bouchard did see a psychiatrist before trial, the
plaintiff has not adduced any expert psychiatric evidence to support a claim
that he suffered, or continues to suffer from depression caused by the February
26, 2005 accident. In these circumstances, the plaintiff has failed to
establish that he has suffered from depression attributable to the conduct of
the defendants.

[155]     The
assessment of non-pecuniary damages depends upon the particular circumstances
of the plaintiff in each case. The factors that the court must consider include
the plaintiff’s age, the nature of his injury, the severity and duration of
pain, disability, emotional suffering, impairment of marital and social
relationships, impairment of physical and mental abilities, and loss of
lifestyle: Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave to appeal
ref’d 2006 CarswellBC 2598 (S.C.C.). Here, I find that the appropriate award
for Mr. Bouchard in all of the circumstances is $160,000.

Past wage loss

[156]     The
assessment of damages for past loss of income is properly characterized as an
assessment of damages for loss of past earning capacity: Lines v. W & D
Logging Co. Ltd., 2009 BCCA 106 at para. 153, leave to appeal ref’d 2009
CarswellBC 2892 (S.C.C.). As a result of the injuries he suffered in the
February 26, 2005 motor vehicle accident, Mr. Bouchard lost some opportunities
for employment. Between August 2004 and February 2005, the plaintiff had worked
intermittently on film sets, but had devoted most of his time to the
performance of a contract with Visual Mechanics for the construction of a motion
control device. Although Mr. Bouchard was able to deliver the product to his
client in March 2005, he found that his back pain interfered with his
concentration and he was unable to complete the motion control device to his
satisfaction. The plaintiff discounted his invoice to Visual Mechanics by
$7,000 because he was unable to deliver a fully functional product. During
March 2005, as a result of back pain caused by the accident, Mr. Bouchard
declined four calls for work from I.A.T.S.E. In late April 2005, the plaintiff
returned to work building special effects for the film “RV”. Bearing in mind
that if Mr. Bouchard had not been injured, he would likely have spent some time
looking for work following completion of the motion control project, and that
any work he accepted before the RV project would likely have been short term, I
assess damages for his loss of income for the two months following the accident
at $10,000.

[157]     It is
common ground that, as a result of his injuries, the plaintiff also lost an
opportunity to work on the replacement of the B.C. Place roof in January,
February, March and June of 2007. Mr. Bouchard’s brother, who replaced him,
earned $35,000 for that work. During that time, the plaintiff was able to work
occasionally and earned approximately $12,000. I would assess his gross loss of
income for January, February, March and June of 2007 at $23,000.

[158]     In late
2007, the plaintiff was working on “Supernatural”. His back pain caused him to
quit that project on December 5, 2007. Mr. Bouchard was unable to return to work
until early March 2008. I assess Mr. Bouchard’s total loss of income for the
months of December 2007, and January and February 2008, at $25,000 gross, based
on the plaintiff’s demonstrated capacity, prior to the onset of his disabling
lower back pain, to earn about $100,000 a year.

[159]     Mr.
Tidball’s loss of income report prepared for the defendants shows the total
amounts received by Mr. Bouchard for both hourly film production work and
contract work by calendar year:

[160]    
The plaintiff’s income fluctuated from month to month and from year to
year depending upon the amounts of hourly work and contract work he performed. For
the hourly film production work, which Mr. Bouchard obtained through
I.A.T.S.E., he was paid at daily rates of $450 to $500. Mr. Orr testified that
Mr. Bouchard’s skills and abilities placed him in the top 10 percent of  special
effects technicians, and that when he had work, he would want to offer it to
Mr. Bouchard. In 2004, Mr. Bouchard did not work during the months of June and
July. From August 2004 until February 2005, the plaintiff concentrated on
contract work for the motion control device. His contract work proved less
remunerative than the hourly work. As we have seen in 2005, the plaintiff lost
two months’ work following the motor vehicle accident and in 2007, he lost the
opportunity to work on the B.C. Place roof replacement project.

[161]    
In July 2008, Mr. Orr terminated the plaintiff’s employment on “Night at
the Museum II” because Mr. Bouchard was unable to meet production deadlines,
and his design work was faulty. Mr. Bouchard’s severe low back pain and his
heavy use of painkillers had interfered with his cognitive functions to the
point he was no longer able to perform his duties as a special effects
technician. Bearing in mind the plaintiff’s previous annual earnings from 2003
onward, and allowing for some fluctuation from year to year to reflect the
availability and mix of his work, I find that it is probable that Mr. Bouchard
would have earned a gross income of $100,000 a year (or on average $8,333 per
month) from August 1, 2008, to August 23, 2010, the first day of trial. Accordingly,
I would assess past loss of income for the period August 1, 2008, through July
31, 2010, at $200,000, and would award an additional $6,000 for the period
August 1 to August 23, 2010.

[162]    
The gross amount of damages for the plaintiff’s past wage loss,
allocated by calendar year, is therefore:

[163]    
Under s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c.
231, damages for income loss suffered after the accident and before the first
day of trial are restricted to the net income loss suffered by the plaintiff in
that period as a result of the accident. Here, because the net income loss may
be determined for each year from 2005 to the date of trial, s. 95 of the Insurance
(Vehicle) Act requires deductions from the gross income loss to take into
account the provisions of the Income Tax Act of British Columbia, the Income
Tax Act of Canada, and the Employment Insurance Act for the relevant
years: Lines v. Gordon and Laxdal v. Robbins, 2010 BCCA 565 at
paras. 20 and 26. The plaintiff has requested, and is granted leave to work out
the net loss calculation following the delivery of these Reasons for Judgment. In
the event that the parties are unable to agree upon that calculation, they may make
further submissions in writing.

Loss of future earning capacity

[164]    
 The standard of proof for the evaluation of hypothetical events that
may affect an award of damages for future loss of earning capacity is simple
probability, rather than the balance of probabilities: Athey v. Leonati.
As the Court of Appeal held in Rosvold v. Dunlop, 2001 BCCA 1 at para 9:

[9]  … Possibilities and
probabilities, chances, opportunities and risks must all be considered, so long
as they are a real and substantial possibility and not mere speculation. These
possibilities are to be given weight according to the percentage chance they
would have happened or will happen.

[165]    
In Rosvold at paras. 10 and 11, the Court of Appeal described the
task of the trial judge as follows:

[10] The trial judge’s task is to assess the loss on a
judgmental basis, taking into consideration all the relevant factors arising
from the evidence: Mazzuca v. Alexakis, [1994] B.C.J. No. 2128 (S.C.)
(Q.L.) at para. 121, aff’d [1997] B.C.J. No. 2178 (C.A.) (Q.L.). Guidance as to
what factors may be relevant can be found in Parypa v. Wickware, supra,
at para. 31; Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 126 (C.A.); and Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They include:

[1] whether the plaintiff has been
rendered less capable overall from earning income from all types of employment;

[2] whether the plaintiff is less
marketable or attractive as an employee to potential employers;

[3] whether 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] whether the plaintiff is less valuable to himself as a
person capable of earning income in a competitive labour market.

[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 (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. 644 (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.

[166]    
In Perren v. Lalari, 2010 BCCA 140, Garson J.A., after reviewing
the authorities, identified the basic principles articulated in Athey
and Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229,
as:

1.         A future or hypothetical possibility will be taken
into consideration as long as it is a real and substantial possibility and not
mere speculation [Athey at para. 27], and

2.         It is not loss of
earnings, but, rather, loss of earning capacity for which compensation must be made
[Andrews at 251].

[167]     Mr.
Bouchard is 31 years old. He has a grade 12 education and two years’ post-secondary
training, which equipped him for his career as a special effects technician. Mr.
Hohmann’s vocational assessment confirms that Mr. Bouchard is innovative and
has advanced mechanical aptitude. Before the accident, Mr. Bouchard’s
skills and abilities equipped him for employment not only as a special effects technician
but also, with further training, for employment in industrial instrument
technology, mining engineering technology, and  environmental technology, or as
a plumber, electrician or other skilled construction tradesman.

[168]     As a
result of his low back injuries, Mr. Bouchard has been left with persistent
disabling pain, the prognosis for which is extremely guarded. The work capacity
evaluation performed by Mr. Padvaiskas  indicates that Mr. Bouchard’s ability
to perform tasks involving bending, stooping or strength are limited by his low
back pain,  and that he is restricted to light strength tasks. The plaintiff’s
limited work endurance restricts him to half-time hours in a setting that would
permit flexibility for unscheduled time off to accommodate the aggravation of
his symptoms. When Mr. Padvaiskas tested Mr. Bouchard in June 2009, he
concluded that  pain and the impairment of the plaintiff’s cognitive
functioning due to high dosages of narcotic and analgesics rendered him
incapable of meeting the minimum requirements for dependable work as a special
effects technician.

[169]     Mr.
Hohmann also found that Mr. Bouchard would be best suited for half-time
sedentary employment with a flexible work schedule. Mr. Hohmann testified that
the limitation to sedentary or light work eliminates about 50 percent of the potential
job market for Mr. Bouchard, and that part-time work and the requirement for
flexible hours further restricts his opportunities for employment. According to
Mr. Hohmann, if Mr. Bouchard were able to re-train, he would be suitable
for part-time employment in architectural, mechanical or electrical drafting,
industrial design, computer programming or website design. Average annual earnings
for part-time employment in those fields range from $24,000 to $36,000. At
present, Mr. Bouchard’s level of pain and his pain medications interfere with
his cognitive abilities and affect his ability to re-train. Mr. Hohmann
reported that with improved cognitive functioning, Mr. Bouchard could
pursue further training; however, he might only be capable of doing so on a
half-time basis, which would double the time necessary to complete any training
program.

[170]     If Mr.
Bouchard is not able to re-train, then he will likely be limited to part-time
employment in such fields as bicycle or small engine repair, where he could
expect to earn about $24,000 a year. Mr. Hohmann also identified part-time
employment as an equipment rental clerk as another post-accident opportunity
for Mr. Bouchard, which would pay approximately $15,000 per year.

[171]     At trial,
Mr. Hohmann was more pessimistic. He thought that Mr. Bouchard was effectively
unemployable. Mr. Hohmann reached that conclusion after considering Dr. Hunt’s
second medical report, which post-dates Mr. Hohmann’s vocational assessment,
and in which Dr. Hunt opines that it is unlikely that Mr. Bouchard will be able
to perform any part-time work of a sedentary nature.

[172]      Mr.
Bouchard has not yet attended the St. Paul’s pain management program,
which is likely to produce some improvement in his level of functioning and a
reduction in his dependency on medication for pain control. Further, Mr.
Bouchard wants to contribute to his own support, and possesses both creative
and technical abilities that were universally praised by the witnesses who
worked with him in the film industry. In my view, it is likely that Mr.
Bouchard will earn some income in the future from part-time employment.

[173]     I have
found that Mr. Bouchard’s pre-accident earning capacity was in the range of
$100,000 a year. As a result of the injuries caused by the February 26, 2005
accident, Mr. Bouchard is disabled from full-time or part-time employment as a
special effects technician and is no longer capable of securing employment in
the range of occupations that were available to him before the accident. I find
that Mr. Bouchard has been rendered less capable overall from earning income
from all types of employment, and that his restriction to part-time employment
with significant physical limitations means that he is less marketable as an
employee to potential employers. Because Mr. Bouchard has lost the capacity to
pursue a promising career as a special effects technician and is left with a
severely restricted range of part time employment opportunities, the plaintiff
is also less valuable to himself as a person capable of earning income in a
competitive labour market.

[174]     As a
starting point for the assessment of Mr. Bouchard’s loss of earning capacity, I
begin by considering the present value of the income Mr. Bouchard would likely
have earned to retirement at age 65, if the accident had not happened. Mr. Benning
provided future income loss multipliers, which are not adjusted for any
contingency other than the risk of premature death. Mr. Benning calculates the
future income loss multiplier for each $1000 of income earned annually to age
65 as $22,016. Based on an annual income of $100,000, and Mr. Benning’s
estimate, the present value of Mr. Bouchard’s future loss of earning capacity
from the trial date to age 65 would be $2,201,600.

[175]     Mr.
Hohmann identified various positions suited to Mr. Bouchard’s skills and
aptitude where, with some retraining, he would be able to earn between $24,000
and $36,000 a year from part-time employment. There is a real and substantial
possibility that Mr. Bouchard will be capable of earning some part-time income
in the future. If one assumes that Mr. Bouchard is capable of earning $30,000
from alternative part-time employment, then using Mr. Benning’s future income
loss multiplier, the present value of the plaintiff’s post-accident earning
capacity to age 65 would be $30,000/$1,000 x $22,016, which equals $660,480. The
present value of the difference between the plaintiff’s future income earning
capacity if the accident had not happened and his future after the accident,
based on Mr. Benning’s calculations, would be $2,201,600 less $660,480, which
equals $1,541,120. This calculation only provides a rough estimate of the
difference between the plaintiff’s pre and post-accident earning capacities,
and makes no allowance for the time Mr. Bouchard may require for further
treatment and retraining before he is able to earn any part-time income.

[176]     Mr.
Hildebrand, for the defendants, has provided employment income multipliers
adjusted not only for the contingency of premature death, but also for labour
market contingencies. His estimates are based on averages derived from 2006
census data for British Columbia males with either one or two years post-secondary
non-university education, adjusted for the contingencies of part-time
employment, labour force participation rates and the possibility of
unemployment. Mr. Hildebrand’s deductions for these contingencies, which total
20 percent, reduce the present value for each $1,000 of income earned annually
from the trial date to age 65 to $17,675. Based on Mr. Bouchard’s annual income
of $100,000 to retirement at age 65, Mr. Hildebrand’s multiplier, as adjusted
for labour market contingencies, would indicate a loss of earning capacity of
$1,767,500.

[177]     Because
the court’s task is to assess damages rather than to calculate them according
to a mathematical formula, it is necessary to take into account all of the
relevant evidence relating to the plaintiff’s loss of earning capacity. I must
consider both general contingencies that affect everyone in the plaintiff’s
position, as well as specific contingencies that apply only to the plaintiff: Reilly
v. Lynn, 2003 BCCA 49, leave to appeal ref’d 2004 CarswellBC 13 (S.C.C.).

[178]     Mr.
Hildebrand based his estimates on calculations that included contingencies
derived from statistical averages for British Columbia males. In my view, the
use of contingencies based on statistical averages is inappropriate in this
case. Mr. Bouchard’s pre-accident prospects were well above the average
for a British Columbia male of his age and with his level of education. Bill
Orr, Dennis Briest, James Vlasblom, Jim Fisher and Dan Keeler all gave evidence
that Mr. Bouchard was a very talented special effects technician who produced
first rate work and collaborated well with his colleagues. For special effects
work on film productions, the plaintiff earned between $450 and $500 per day. Mr.
Orr testified that the plaintiff had the potential to earn up to $600 per day
as a special effects technician. If he became a special effects coordinator,
Mr. Bouchard had the potential to earn as much as $1,000 per day.

[179]     In my
view, there is a positive contingency that if the accident had not occurred,
Mr. Bouchard would have received raises or would have taken advantage of
opportunities for advancement that would have increased his earning capacity. I
must also take into account the negative contingencies, including possible
unemployment, and the normal risks and hazards of life. In addition, there is also
the real possibility that Mr. Bouchard, rather than continuing to work 12 to
16-hour days on production sets to age 65, might have chosen to retire at age
60, or earlier. I must also take into account the likelihood that Mr. Bouchard will
earn some income through part-time employment.

[180]     Mr.
Bouchard’s earning potential was about $100,000 per annum. Using
Mr. Benning’s multiplier to age 65 as a guide, and adjusting for the
contingencies I have discussed, I assess damages for Mr. Bouchard’s loss of
future earning capacity in the amount of $1,500,000.

[181]     In
arriving at this amount, I have made no deduction for the measurable risk that Mr.
Bouchard would have suffered serious low back problems at some point, absent
the accident. I have previously determined that risk to be 40 percent, and  apply
the 40 percent reduction to all damages assessed at the conclusion of these
Reasons for Judgment.

Cost of future care

[182]     There must
be a medical justification for claims for cost of future care, and those claims
must be reasonable and fair to both parties. The court must determine the
services, medications and aids that are reasonably necessary to promote the
health of the plaintiff and assess the likelihood that he will use them in the
future. See: Aberdeen v. Zanatta, 2008 BCCA 420 at paras. 41-42; and Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (B.C.S.C.).

[183]     Mr. Bouchard
relies upon the helpful and comprehensive cost of future care report of Carlene
Brady, an occupational therapist, who assessed the plaintiff in his home in
February 2010, held follow-up consultations with Mr. Bouchard on May 4 and 5,
2010, and reviewed the medical records, including the reports of Drs. Hershler
and Hunt.

[184]    
At page 30 of her report, Ms. Brady fairly summarizes the plaintiff’s
current limitations:

Despite
multiple attempts at returning to work over the past few years, Mr. Bouchard
continues to be significantly limited by chronic pain and secondary
psychological and cognitive impairments. Mr. Bouchard’s experience of pain has
diminished his physical capacity and disrupted his ability to resume his former
activities including driving, cooking, cleaning, yard work, child care, home
repairs and social/recreational activities.

[185]     I accept
Ms. Brady’s assessment findings as an accurate estimate of the plaintiff’s
functional abilities. She found that Mr. Bouchard was cooperative throughout
her assessment and made no obvious attempts to amplify his limitations;  that
the plaintiff’s capacity to lift and carry was severely limited by pain; and
that his mobility to perform domestic tasks, including meal preparation,
housework and household maintenance, were all limited by pain. Ms. Brady also
reported that the plaintiff’s capacity to solve problems was limited by
cognitive disturbance associated with chronic pain, and that he was unable to
resume work as a special effects technician.

[186]     I conclude
that Mr. Bouchard is partially disabled and in need of future care as a result
of the injuries caused by the February 26, 2005 accident.

[187]     Ms. Brady
recommended that the plaintiff participate in an interdisciplinary chronic pain
program to address pain management. That recommendation is supported by Dr.
Hunt. The program is available to Mr. Bouchard at St. Paul’s Hospital at
no cost to him through the Medical Services Plan.

[188]     Although
Ms. Brady also recommended that the plaintiff undergo a neurological assessment
and sexual therapy, Dr. Hunt has advised that treatment is no longer necessary.

[189]     Ms. Brady’s
recommendations for medications were based upon Mr. Bouchard’s usage in
May 2010. Some deductions are necessary. The cost for Gabapentin, which the
plaintiff no longer takes, should be deducted. Further, I would deduct the
costs for Risperidone, which the plaintiff takes for his unrelated bi-polar
disorder. Some deduction should also be made for the contingency that the
plaintiff, who is endeavouring to reduce his use of painkillers over time, will
be able to do so.

[190]     Mr.
Benning’s report provides cost of future care multipliers for each of
Ms. Brady’s recommendations, and estimates of the present value of each of
those recommendations. Mr. Benning has estimated the total present value of Ms.
Brady’s recommended medications at just under $163,000. By eliminating the
future costs of medications that the plaintiff is no longer taking, or that are
unrelated to the motor vehicle accident, and allowing for the contingency of a
reduction in the plaintiff’s future requirements for prescription medications,
I would reduce the future costs of medication by a total of $50,000 from the
costs estimated in Schedule II of Mr. Benning’s report.

[191]     On the
evidence before the court, I find that the occupational therapy, physiotherapy,
psychology, aquatic therapy and kinesiology recommendations set out in Ms.
Brady’s report will all benefit the plaintiff and are required as a result of
the injuries Mr. Bouchard suffered in the February 26, 2005 accident. It is
likely that Mr. Bouchard will use the physiotherapy on the ongoing basis as
recommended by Ms. Brady. I am also satisfied that Mr. Bouchard will take
advantage of the aquatic therapy and kinesiology for the two-year period
recommended by Ms. Brady, and will use the occupational therapy and psychology
at the recommended intervals.

[192]     Mr.
Bouchard will have a continuing need for homemaking assistance. Ms. Brady
has provided two estimates of Mr. Bouchard’s homemaking assistance requirements.
The first, which assumes that Mr. Bouchard will live with his wife, provides
for 12 hours of assistance a month. The second, which is based upon
Mr. Bouchard living alone, provides for 27 hours of homemaking assistance
per month.

[193]     At the
time of trial, the parties were separated. Although the plaintiff and Sondra
Bouchard each expressed some desire to get together again, neither were
optimistic about the future of their relationship. It is unlikely that Mr. and
Mrs. Bouchard will permanently reunite. I find that the plaintiff’s future
requirements for homemaking services are likely to be closer to 27 hours,
rather than 12 hours per month.

[194]     Ms. Brady
has also included estimates for yard and home maintenance, based on a study of
the average time devoted to each of these activities by American males, whether
living in apartments or houses. At present, Mr. Bouchard resides in a
one-bedroom apartment. Although it is possible that his living arrangements may
change in the future, his use of yard and home maintenance services will likely
be less frequent than that estimated by Ms. Brady.

[195]     Ms.
Brady’s recommendation for the provision of an ergonomic kneeling chair is
reasonable and will benefit the plaintiff, as will her recommendation with
respect to vocational counselling, which is supported by Dr. Hershler. At the
time of trial, Mr. Bouchard’s continuing pain and associated cognitive
difficulties rendered his prospects for future employment rather limited. However,
there is no question that Mr. Bouchard would like to return to the workplace in
some capacity. Mr. Hohmann referred to the therapeutic and rehabilitative
benefits that part-time employment or volunteer work would provide to Mr.
Bouchard, so long as he is able to experience some positive feedback from any
future employment opportunity. As the plaintiff reduces his medications and his
cognitive functioning improves, he will be able to take advantage of the
vocational counselling.

[196]     Finally,
Ms. Brady has estimated costs of Mr. Bouchard using taxis for transportation to
and from all of his future therapeutic appointments, as well as the one-time cost
for driver assessment. Mr. Bouchard was able to drive his own vehicle, at least
intermittently, after the onset of his increased low back pain symptoms in
October 2007, until shortly before trial. With some reduction in his
medication, and a corresponding improvement in his cognitive functions, it is
likely that Mr. Bouchard will be able to drive again. While that may not occur
for a year or more, there should be some deduction to allow for the contingency
that the plaintiff will not remain dependent upon taxi transportation to attend
all of his future appointments.

[197]     Mr.
Benning provides estimates for the present value of Ms. Brady’s cost of future
care recommendations for various scenarios. Mr. Benning’s estimated cost of
future care varies depending upon whether Mr. Bouchard attends the St. Paul’s
pain management clinic at no cost, or an alternate facility where he would incur
a one-time cost of $13,000, and whether or not he separates from his wife. As a
starting point for the assessment of the plaintiff’s costs of future care, I
consider Mr. Benning’s “St. Paul’s Clinic-Separates from Wife” scenario the
most likely. Under that scenario, Mr. Benning estimated the present value of
Ms. Brady’s recommendations at $585.000.

[198]     Taking
into account all of the evidence, the costs of the items I have discussed as
set out in Ms. Brady’s report, the cost of future care multipliers in Mr. Benning’s
report, and allowing for the various contingencies I have discussed and the deductions
I have found to be appropriate, I find that a fair award for the cost of future
care is $475,000.

Special damages

[199]     The
plaintiff claimed special damages totalling $63,478.45. That amount included
$23,037.50 for the unpaid balance owing for a full-time one-year re-training
program at the Vancouver Film School in entertainment business management, for
which Mr. Bouchard enrolled in July 2010. The program was scheduled to
commence on January 4, 2011.

[200]     Unfortunately,
it was unrealistic for the plaintiff to have enrolled in this program. He lacked
the physical stamina required for this full-time course. Further, his cognitive
functions continued to be impaired by pain and his medications. At trial, the
plaintiff acknowledged that it was unlikely that he would be able to pursue the
Vancouver Film School course. So, I would deduct the $23,037.50 from the amount
claimed for special damages. I would also deduct the deposit of $1,212.50 paid
by the plaintiff to the Vancouver Film School. This was not an expense
reasonably incurred by the plaintiff.

[201]     After the
Vancouver Film School deductions, the special damages claim is reduced to
$39,228.45. This amount  includes expenses incurred by Mr. Bouchard for physiotherapy,
chiropractic, massage therapy, kinesiology, pulsed signal therapy, prescription
and non-prescription medications, supplies, mileage for attendance at medical
appointments, labour for household repairs that the plaintiff would have
performed but for the accident, marriage counselling and psychological
counselling for pain management, all of which I find to be reasonable. Mr.
Bouchard has received reimbursements totalling $2,922.94 for some of his
therapy and medications. After deducting the amounts reimbursed, I award
special damages in the amount of $36,235.51.

CONCLUSION

[202]    
Mr. Bouchard’s back injuries, including the low back injuries which
resulted in ongoing pain and disability, were caused by the February 26, 2005
accident. I have assessed the plaintiff ‘s  damages in the following amounts:

(a)      non-pecuniary loss – $160,000;

(b)      past income loss (gross) – $264,000;

(c)      loss of future earning capacity – $1,500,000;

(d)      cost of future care – $475,000;

(e)      special
damages – $36,235.51

TOTAL:
$2,435,235.51 (before 40 percent reduction).

[203]     The
plaintiff’s damages must be reduced by 40 percent to take into account the
measurable risk that Mr. Bouchard’s pre-existing degenerative condition would
have detrimentally affected him in any event of the accident. In the result,
the total amount of damages is $1,461,141.31. Before the formal order of the court
is entered, this amount will have to be adjusted to reflect the net amount of
past income loss, either as agreed by counsel or as determined by the court
following further submissions.

[204]    
Unless there are matters on which the parties wish to make submissions,
Mr. Bouchard is also entitled to costs. If the parties are unable to
resolve the terms of the order as to costs, they may provide me with written
submissions on costs through the Trial Registry.

“PEARLMAN
J.”