IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111005

Docket: 07-4624

Registry:
Victoria

Between:

Arthur Drodge

Plaintiff

And

Darcy Kozak and
Bridges Land Corp.

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Madam Justice Dardi

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff, Arthur Drodge, was injured in a car accident on October 22,
2006.

[2]            
The Third Party, the Insurance Corporation of British Columbia (“ICBC”),
has admitted that the defendant driver Darcy Kozak’s negligence, in the
operation of a vehicle owned by the defendant Bridges Land Corporation, caused
the accident. Neither defendant participated in the trial.

[3]            
It is uncontroversial that Mr. Drodge, who was 62 years old at
trial, sustained injuries in the accident and that he is entitled to damages as
a result of the injuries he sustained.

[4]            
ICBC disputes the extent of Mr. Drodge’s injuries and the amount of
damages claimed. The central issues are whether Mr. Drodge suffered a mild
traumatic brain injury, and the extent to which the accident caused an
aggravation of Mr. Drodge’s pre-existing back condition. ICBC also
vigorously asserts that Mr. Drodge has failed to mitigate his damages.

FACTS

[5]            
Before addressing the damages analysis I turn to the facts established
on the evidence. I will address the facts in the following order:

                          
i.         
general background and Mr. Drodge’s circumstances prior to the
accident;

                         
ii.         
the accident; and

                       
iii.         
Mr. Drodge’s circumstances post-accident and at trial

I will then summarize the expert evidence, set out my
conclusions on Mr. Drodge’s condition, and address the issue of
mitigation.

Prior to Accident

[6]            
After leaving high school Mr. Drodge worked for a few years at a
tire store in Newfoundland. In 1969 he completed a one-year psychiatric nursing
attendant course in Ontario. He worked for a short period of time as a nursing
attendant in Newfoundland until he moved to B.C. in 1971. He worked at a
sawmill in Sooke in various capacities until approximately 1989. In 1991 he
moved to Vernon, where he continues to reside, to pursue work as a long-haul
truck driver.

[7]            
In 1996, during his employment as a long-haul truck driver, he sustained
a back injury in a work-related accident. X-rays at the time showed mild
degenerative disc disease. In November 2000 he sustained another
work-related back injury. He underwent treatment for his low back pain and
missed work at various times because of his low back pain. His condition
deteriorated and in January 2002 he underwent a lumbar discetomy. After
the surgery he initially experienced significant relief, but approximately four
months later and without any re-injury he suffered a recurrence of his low back
and radicular left leg pain. He experienced a significant flare-up in his low
back pain on the first long-haul driving trip after his surgery. Thereafter he
never resumed his employment as a long-haul truck driver.

[8]            
He was re-trained by the Workers’ Compensation Board (“WCB”) as a Class 1
driving instructor. He also qualified as an instructor for the air-brakes
course.

[9]            
On April 1, 2003, Mr. Drodge commenced employment as a
truck-driving instructor for Taylor Professional Driving in Kelowna. He left
their employ on February 22, 2006, because they could not offer him
full-time work. On March 6, 2006, he commenced employment at Extreme Pro Trucking
in Kelowna, where he worked full time as a Class 1 driving instructor.

[10]        
I accept Mr. Drodge’s evidence that he enjoyed his work as a
driving instructor, and that he found it rewarding. He felt fortunate in
securing the driving instructor position after his long career as a long-haul
truck driver, although he did not enjoy the daily commute to Kelowna from Vernon.

[11]        
With respect to his recreational activities before the accident, Mr. Drodge
enjoyed various outdoor activities including hunting, fishing, swimming,
camping and walking outdoors. He regularly rode his motorcycle and a 4-wheel
all-terrain vehicle. He also shared an active social life with his partner
Susan Drodge, who had moved to Vernon in 2004 to live with Mr. Drodge.
They married in 2008.

[12]        
He has three adult children from his first marriage. Prior to the
accident he regularly drove to visit both his daughter and her family on Vancouver Island, and his son and his family in 150 Mile House.

The Accident

[13]        
Mr. Drodge was the front seat passenger in a one-ton pickup truck
driven by his daughter. His two young grandchildren were in the back seat and
fastened in by their seatbelts. The defendants’ oncoming vehicle crossed the
centre yellow line on Sooke Road on Vancouver Island and collided with his
daughter’s truck. It was struck directly on the driver’s front side, forcing
the vehicle into a telephone pole. The vehicle ultimately came to rest on the passenger’s
side panels.

[14]        
He was taken by ambulance to the hospital in Victoria and released on
the same day. Following his release from the hospital his son-in-law drove him
back to Sooke.

[15]        
Mr. Drodge returned to Vernon with Ms. Drodge on October 25,
2006, and immediately booked an appointment with his family doctor,
Dr. Gavin Smart.

Post-Accident Circumstances and At Trial

[16]        
It is common ground that in the accident Mr. Drodge sustained soft
tissue injuries involving his neck and upper back, a contusion to his right
elbow, bruising and an abrasion to his forehead which did not require sutures,
and an aggravation of his pre-existing low back symptomatology.

[17]        
His elbow injury resolved within a month. The pain in his neck and upper
back, although lasting for several months, had resolved as of the trial.

[18]        
Immediately following the accident Mr. Drodge reported severe low
back pain (10 on the pain scale) to the ambulance attendant. He continues to
experience low back symptoms.

[19]        
He saw a physiotherapist for 14 sessions after the accident and attended
one session with a personal trainer, who provided him with an exercise routine.
In November 2007 Mr. Drodge attended a fitness centre for
approximately six months, but found his exercise routine painful and ultimately
not very beneficial. Further attendances at physiotherapy and the fitness
centre were constrained in part because of his financial concerns regarding the
travel costs for those attendances. He continues to do the exercises
recommended by the physiotherapist and trainer on a fairly regular basis at
home, though not when his back pain is severe.

[20]        
Mr. Drodge reported to Dr. Smart on October 25, 2006,
three days after the accident, that he was experiencing headaches.
Mr. Drodge’s headache symptoms have persisted. It is uncontroversial that
he had not suffered from any headaches prior to the accident.

[21]        
Insofar as medication, he takes Ibuprofen and Tylenol. Additionally, on
occasion he has taken a prescription medication with codeine and hydromorphone,
which is a morphine-based prescription narcotic. He has used hydromorphone for
relief only for his more severe symptoms because of the sedation he experienced
with the medication. He received some injections to help relieve his back pain,
but the relief was only temporary.

[22]        
He has not worked since the accident. In January 2007 he
unsuccessfully attempted to return to work as a driving instructor for a few
weeks.

[23]        
At the suggestion of a psychologist, after the accident Mr. Drodge performed
some volunteer activities through the Vernon Volunteer Bureau.

[24]        
The evidence supports a finding that for the most part Mr. Drodge’s
outdoor recreational activities have been significantly curtailed. For example,
since the accident he has ridden his all-terrain vehicle much less frequently
than prior to the accident, and not at all during the winter season. His
fishing trips, which he described as a favourite activity, have substantially
declined in frequency since the accident.

Plaintiff’s Experts

[25]        
At trial Mr. Drodge called his family doctor, Dr. Smart, and a
neuropsychologist, Dr. Miller. The reports of Mr. Saunders, the
physiotherapist who treated Mr. Drodge, and Dr. Neilsen, a registered
psychologist, were tendered in evidence. The defence called Dr. Solomons,
a psychiatrist, Dr. Teal, a neurologist, and Dr. Arthur, an
orthopaedic surgeon.

[26]        
The key aspects of their respective reports are summarized below.

[27]        
At this juncture I note that at the request of ICBC a functional
capacity evaluation of Mr. Drodge was conducted on February 21, 2008,
by an occupational therapist, Mr. Lars Taylor. Neither party relied upon Mr. Taylor’s
report to advance their respective case. While the report was used in
cross-examination, Mr. Taylor’s opinion was not evidence at trial.

Dr. Smart

[28]        
Dr. Smart was qualified to give opinion evidence in the area of
family medicine and in the diagnosis and treatment of concussions. He has been
a medical doctor since 1995. He has a particular interest in sports-related
injuries. He prepared four medical-legal reports dated February 19, 2007; June 4,
2007; July 5, 2009; and October 14, 2010.

[29]        
He has been Mr. Drodge’s family physician since 1996.
Dr. Smart first saw Mr. Drodge after the accident on October 25,
2006, at which time his diagnosis was as follows:

1.    
Grade II Cervical/thoracic/lumbar strain;

2.    
Contusion on the right lateral elbow; and

3.    
A closed head injury with post-concussion syndrome.

[30]        
At this initial appointment Mr. Drodge’s complaints included
dizziness, forgetfulness, and what Dr. Smart described as “global” or
tension-type headaches. Dr. Smart advised Mr. Drodge not to return to
work until at least November 8, 2006, and referred him to physiotherapy.

[31]        
 Mr. Drodge attended on Dr. Smart frequently from November 2006
through to February 2007. In November 2006, in addition to his other
symptoms, Mr. Drodge reported episodes of tearfulness. On January 3,
2007, Mr. Drodge reported his low back pain was “almost back to normal”
and that his memory was “slowly improving”. However, on January 29, 2007,
Mr. Drodge reported that he had attempted to return to work
unsuccessfully. Dr. Smart opined that Mr. Drodge’s low back pain had intensified
when he re-exposed himself to physical activity. During this appointment
Mr. Drodge was tearful and demonstrated some impairment in the testing
recall performed by Dr. Smart. Mr. Drodge also reported persistent
headaches and occasional episodes of confusion. Dr. Smart prescribed
Effexor, an anti-depressant medication. On February 26, 2007,
Mr. Drodge reported that with activity his low back pain was “really bad”.

[32]        
Mr. Drodge saw Dr. Smart on a monthly basis through 2007.
Throughout 2007 Mr. Drodge continued to report no improvement in his mood,
cognitive impairment, or headache pain. Mr. Drodge saw Dr. Smart in
January, April, June, August, September, and December of 2008, and in January and
June of 2009 in relation to his injuries.

[33]        
In June 2008 he reported that his low back pain “was as bad as it
had ever been” and that he had withdrawn from his fitness centre exercise
program that he had commenced in November 2007. As of December 29,
2008, Mr. Drodge reported continuing low back pain, which he described as
“excruciating” and aggravated by any minimal physical activity. The pain
emanated from his L4-S1 vertebrae and radiated into both buttocks.

[34]        
Mr. Drodge continued to experience daily headaches, which typically
originated in his occipital area and radiated into both temporal areas. The
headaches typically persisted for several hours per day and were only relieved
by sleep. He continued to report impaired short-term memory.

[35]        
On both July 31, 2009 and January 29, 2010, Mr. Drodge
reported that his chronic low back pain was aggravated by all activities of
daily living; his back pain increased with sitting, driving, and walking.
Dr. Smart’s examination revealed an extreme limitation of lumbar forward flexion
and limited lateral lumbar flexion. On January 29, 2010, Dr. Smart
suggested that Mr. Drodge attend physiotherapy to alleviate his low back
pain.

[36]        
On examination on July 28, 2010, Mr. Drodge’s lumbar
forward-flexion was limited by central low back pain. He had not attended his
fitness-centre-based exercise program for more than one year due to what he
maintained was exacerbation of his low back pain with exercise. He was
experiencing low self-esteem and helplessness related to his limited physical
capabilities, persistent headaches, and unemployment. At this appointment
Mr. Drodge reported to Dr. Smart that his memory and concentration
“were not too bad”.

[37]        
In his report dated October 14, 2010, Dr. Smart states that
Mr. Drodge had consistently complained of headaches at every office visit
related to the accident. With respect to the headaches and associated cognitive
difficulties Dr. Smart concludes as follows:

In my opinion, Mr. Drodge
sustained a significant mild traumatic brain injury with concussion as a result
of his October 22, 2006 motor vehicle accident. This resulted in a
significant postconcussion syndrome, manifesting as self-reported impairments
of cognitive function which were confirmed by Dr. H. Miller on
neuropsychological testing performed on May 15, 2007. Mr. Drodge’s
performance on neuropsychological testing did not reveal evidence of structural
brain damage, but his deficits in learning, memory and higher order reasoning
were consistent with postconcussion syndrome. Mr. Drodge continues to
experience daily severe global or “tension type” headaches, which are a
component of prolonged post concussion syndrome that has resulted from his MVA
related mild traumatic brain injury. (Emphasis added.)

[38]        
In regard to Mr. Drodge’s low back condition Dr. Smart opines
as follows:

Mr. Drodge also continues to
experience severe lumbar back pain, which prevents him from performing any
significant amount of physical work and severely limits his mobility. Although
Mr. Drodge had a well-documented history of low back pain prior to his October 22
MVA, his low back pain had been stable over the 36 months prior to his MVA,
permitting him to work full time as a class 1 driver’s instructor. Although
progression of his low back pain over time may have occurred without sustaining
injury in his October 22 MVA, of his low back pain following his MVA has
progressed to a level of severity that would not have otherwise occurred over
time through normal daily activity. Currently, Mr. Drodge is not
capable of performing work requiring physical activity due to his low back
pain, and his ability to perform sedentary work is limited by his headaches and
positional aggravation of his low back pain with sitting. (Emphasis added.)

[39]        
Dr. Smart’s prognosis is as follows:

Given the fact that 4 years have
now elapsed since Mr. Drodge’s October 22, 2006 MVA, I do not
anticipate significant improvement of his headaches or low back pain.

Dr. Miller

[40]        
Dr. Miller was qualified as an expert in clinical neuropsychology.
He performed an extensive neuro-psychological evaluation of Mr. Drodge on April 19-20,
2007. The examination revealed that certain areas of higher cognitive function
were within the normal limits. In contrast, significant deficits “were evident
for complex auditory attention learning and memory and most elements of higher
order reasoning”. Dr. Miller also noted that receptive language was
impaired. The personality examination and clinical review revealed symptoms of
depressed mood and anxiety. He concluded that there was no clear indication of
the presence of neurological indicators of brain injury to suggest that
Mr. Drodge suffered a brain injury as a result of striking his head in the
accident.

[41]        
In Dr. Miller’s opinion the deficits observed on the
neuro-psychological evaluation were not a consequence of brain injury but
rather “distractibility secondary to emotional disturbance and pain.” He
explained that in his opinion Mr. Drodge’s emotional distress, pain, and
headaches were the primary reasons for his cognitive problems. His clinical
diagnostic formulation was an “adjustment or emotional disorder with mixed
anxiety and depressed mood” and a “pain disorder associated with psychological
factors and a general medical condition.” He strongly recommended that
Mr. Drodge be seen for psycho-therapy to assist with developing
appropriate coping mechanisms to deal with emotional problems and to assist
with pain management. He expects that if Mr. Drodge’s coping skills
improve, then his pain management should also improve.

[42]        
Dr. Miller also opined that the severity and unpredictability of
Mr. Drodge’s headaches combined with his cognitive problems with
attention, concentration, and memory would “understandably interfere with his
employability.”

Dr. Patricia Neilson

[43]        
The report dated May 5, 2008, of Dr. Patricia Neilson, a
registered psychologist, was tendered at trial. She initially saw
Mr. Drodge on September 21, 2007, and saw him for six subsequent sessions
ending on January 16, 2008. She saw him for a follow-up appointment on April 29,
2008.

[44]        
She concluded that his primary concerns appeared to be headache pain,
concentration difficulties, and financial stress. In her view he did not
report symptoms suggestive of any significant mood disorder, including
depression. Mr. Drodge denied any concerns regarding anxiety, and
attributed his avoidance of his previous levels of driving to safety concerns
occasioned by his poor concentration. He reported being frustrated and
dissatisfied with his life, which has been significantly impacted as a result
of his inability to work.

[45]        
Dr. Neilson noted that although he attended and participated in all
therapy sessions he was not a “highly psychologically minded individual”, and
therefore in her view the benefits of therapy were limited. He presented as a
more pragmatic individual whose concern was his recurrent headache pain.

[46]        
She was of the view that as of May 2008 he was not in need of any
continuing psychological intervention, but that he may require it in the future
if his situation deteriorated.

Mr. Saunders

[47]        
Mr. Saunders is a qualified physiotherapist who has worked in
private practice since 2000. Mr. Saunders provided 14 physiotherapy
treatments to Mr. Drodge in November through December 2006. In
his report he states that Mr. Drodge’s cervical and thoracic injuries
improved significantly over the treatment sessions. His lumbar spine injury
showed improvement, but to a lesser extent. At their last session he notes that
Mr. Drodge presented with lumbar spine stiffness and corresponding muscle
irritation, and Mr. Saunders concluded that this area remained vulnerable
and would be prone to aggravation.

[48]        
In his opinion Mr. Drodge was a motivated person willing to
“actively take part in his rehabilitative program”, and he described
Mr. Drodge as a compliant patient.

Defence Experts

Dr. Solomons

[49]        
Dr. Solomons is a qualified psychiatrist who at the request of ICBC
examined Mr. Drodge on July 9, 2009, and prepared a report dated August 2,
2009. At trial I ordered that certain contents of his report be expurgated, on
the basis that the statements were not properly admissible opinion evidence.

[50]        
Dr. Solomons opined that Mr. Drodge did not sustain any
functional brain injury as a result of the accident; nor did he develop any
psychiatric condition or disorder as a result of the accident. It is
Dr. Solomans’ view that the pre-conditions for the diagnosis of
post-traumatic stress disorder were not met in this case. Rather, in his
opinion Mr. Drodge presented with non-specific stress symptoms that
potentially related to a number of causes, including physical pain,
unemployment, financial constraints, and boredom. Other than some stress
associated with his financial difficulties, he opined that Mr. Drodge’s
present psychological status is “essentially normal”. Insofar as a prognosis,
Dr. Solomans opined that there are no cognitive or psychiatric concerns,
and that Mr. Drodge has no psychiatric or neuro-cognitive impediments for
any vocational activities.

[51]        
In cross-examination Dr. Solomans admitted that a person could
suffer from cognitive symptoms as a consequence of severe headaches. He agreed
that headaches of this nature could affect someone’s mood and their ability to
work, and that the headaches could therefore be disabling.

[52]        
Although Dr. Solomons maintained that Mr. Drodge did not
exhibit any cognitive difficulties during his interview, the evidence supports
a finding to the contrary. In cross-examination he acknowledged that his notes
from the interview indicate as follows:

Not had cognitive tests. Then he says did. Query name. Not
remember when. About 18 months to two years ago. Not remember the feedback
about the test results.

Not recall anything about it at
all, not even why he was treated.

Moreover, Mr. Drodge had mistakenly told him he had
sustained his back injury in 1986; his back injury occurred in 1996.

[53]        
In my view, Dr. Solomons was not an impartial expert providing a
balanced discussion on Mr. Drodge’s condition. Overall, I found his evidence
lacking the sufficient degree of objectivity to be of any real assistance. In
the result I have accorded his opinion little weight.

Dr. Arthur

[54]        
Dr. Arthur is an experienced orthopaedic surgeon. Dr. Arthur
assessed Mr. Drodge on behalf of ICBC on July 8, 2009. In preparing
his report dated July 8, 2009, he reviewed Mr. Drodge’s clinical
records, including Dr. Smart’s report dated June 4, 2007.

[55]        
In Dr. Arthur’s opinion there was little in the way of objective
findings with respect to Mr. Drodge’s low back complaints other than some
tenderness in the lower lumbar region. Dr. Arthur found Mr. Drodge’s
range of motion excellent. He found no evidence of any exaggerated pain
behaviour. He opined as follows:

This gentleman suffers from
mechanical lower back pain and I believe that he did have soft tissue insult as
a result of the motor vehicle accident, but would also agree with Dr. Smart
this likely has returned to its pre-accident level. (Emphasis added.)

[56]        
He commented that while Mr. Drodge would potentially benefit from a
further assessment of his low back condition, he did not attribute his current
low back complaints to the accident.

[57]        
Dr. Arthur opined that Mr. Drodge is not disabled from
returning to his position as a driving instructor by virtue of his low back
condition.

[58]        
Subsequent to the preparation of his report Dr. Arthur reviewed
Dr. Smart’s October 14, 2010 report and testified that the contents
of that subsequent report did not alter his opinion.

Dr. Teal

[59]        
Dr. Teal has been a neurologist since 1991. In addition to being a
clinical professor of neurology at the University of British Columbia he is on
the staff at Vancouver General Hospital and sees a large volume of
hospital-based neurology cases. He also maintains a busy tertiary referral
practice.

[60]        
At the request of ICBC he performed a physical and neurological
evaluation of Mr. Drodge on August 5, 2010. He also reviewed
Mr. Drodge’s medical records and reports. In Dr. Teal’s opinion,
Mr. Drodge sustained a very superficial laceration to his right forehead,
soft tissue injuries to the right elbow, low back strain which aggravated his
pre-existing low back problems, and a Grade II cervical strain.

[61]        
He also opined that “it is very unlikely Mr. Drodge sustained a Mild
Traumatic Brain Injury or concussion as a result of the motor vehicle
accident”. The formulation of his opinion was based in part on Dr. Teal
making the following determinations:

                          
i.         
Mr. Drodge had no retrograde amnesia for the events leading up to
and immediately preceding the impact;

                         
ii.         
Mr. Drodge did not sustain any loss of consciousness as a result of
the impact. Dr. Teal based this on Mr. Drodge’s own reports of the
accident, the immediate events following the impact, the ambulance crew report which
states that there was no loss of consciousness, and the records from the
hospital emergency department; and

                       
iii.         
Mr. Drodge reported clear memories of his response and actions
following the impact. He reported immediate concern regarding the welfare of
his grandchildren.

[62]        
Dr. Teal also considered Mr. Drodge’s report that, after he
extricated himself and the other occupants from the vehicle, he felt dizzy and
had to sit down. Dr. Teal opined that the episode is consistent with
either a stress reaction response to pain, or a vasovagal faint event, and is
not attributable to the effects of a head injury. He observed that a decreased
level of consciousness or awareness due to a concussion occurs instantaneously
with the impact and not in a delayed fashion.

[63]        
During his evaluation conducted on August 5, 2010, in Dr. Teal’s
view Mr. Drodge demonstrated normal concentration and focus. His
short-term memory was within normal limits.

[64]        
Dr. Teal considered Mr. Drodge’s reports to Dr. Smart
about his cognitive difficulties, including forgetfulness, his struggling with
accounting tasks, and his occasional reports of tearfulness and anxiety. It is
Dr. Teal’s opinion that, notwithstanding Mr. Drodge’s subjective
complaints of cognitive dysfunction, it is unlikely that Mr. Drodge
sustained any persistent cognitive sequelae as a result of any brain injury
arising from the motor-vehicle accident.

[65]        
It is Dr. Teal’s opinion that the headaches reported by
Mr. Drodge are consistent with chronic tension-type headaches. Dr. Teal
acknowledged that the accident caused the headaches. It is his view however
that the prolongation of the symptoms is not directly attributable to the
accident—the persistence of the headache pattern may be due to other stressors
or psychological or emotional factors. He was also of the view that
Mr. Drodge’s headaches have never been properly treated.

[66]        
While Dr. Teal acknowledged that Mr. Drodge did not
demonstrate any pain behaviour and there was no indication that Mr. Drodge
was malingering, he opined that it is “very unusual” for this pattern of
headaches to be significantly disabling in a 61 year old man. In his report he
states as follows:

Trials of therapy for chronic
tension-type headaches include the use of tricyclic antidepressants such as
amitriptyline or nortriptyline, simple physical modalities including self-directed
range of motion exercises, simple physical measures such as heat or ice, and
the episodic use of non-narcotic analgesics and anti-inflammatories.

It is my opinion that appropriate
headache management as outlined above and the resolution of current stressors
including litigation and compensation issues will likely result in an
improvement in his headache pattern.

[67]        
Dr. Teal also evaluated Mr. Drodge’s lower back, and noted
that there was mild restriction in his lumbar movement and no evidence of nerve
root irritation. It is his opinion that Mr. Drodge did suffer an
aggravation of his pre-existing low back pain as a result of the accident, but
that Mr. Drodge has likely regained his pre-motor vehicle accident status.
He opined that while Mr. Drodge currently does suffer from chronic
mechanical low back pain it is due to degenerative disc disease.

[68]        
He concludes as follows:

From a neurologic perspective, it
is my opinion that Mr. Drodge has not sustained a traumatic brain injury
or spine injury that would preclude him from managing his affairs or working as
a driving instructor.

Conclusions

[69]        
Since pain is a subjective phenomenon not easily measurable by
independent objective indicia, the assessment of the severity of
Mr. Drodge’s current headache and low back symptoms necessarily requires
the Court to assess the reliability of Mr. Drodge’s evidence regarding his
subjective complaints and reported symptoms: Szymanski v. Morin,
2010 BCSC 1 at para. 106; and Shapiro v. Dailey, 2010 BCSC 770 at para. 35.

[70]        
The defence submits that Mr. Drodge’s self-reports about his
current condition—headaches, cognitive difficulties, low back pain, and the
consequent impairment of his ability to function—are not entirely reliable and
must be approached with caution.

[71]        
The absence of objective physical findings regarding his headaches is
not determinative of whether Mr. Drodge continues to suffer from chronic
pain. However, I am mindful of the caution expressed by the Court
in Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 at para. 15
(C.A.), that the courts should exercise caution when there is little objective
evidence of continuing complaints of pain persisting beyond what the defence
asserts is the “normal recovery period”.

[72]        
Insofar as the defence submissions relating to Mr. Drodge’s
evidence at trial and the alleged inconsistencies with the information he
previously provided to various medical professionals, the court’s observations
in Edmondson v. Payer, 2011 BCSC 118, are instructive:

[34]      The difficulty with statements in clinical records
is that, because they are only a brief summary or paraphrase, there is no
record of anything else that may have been said and which might in some way
explain, expand upon or qualify a particular doctor’s note. The plaintiff will
usually have no specific recollection of what was said and, when shown the
record on cross- examination, can rarely do more than agree that he or she must
have said what the doctor wrote.

[35]      Further difficulties
arise when a number of clinical records made over a lengthy period are being
considered. Inconsistencies are almost inevitable because few people, when
asked to describe their condition on numerous occasions, will use exactly the
same words or emphasis each time. As Parrett J. said in Burke-Pietramala
v. Samad, 2004 BCSC 470, at paragraph 104:

…the reports are those of a layperson going through a
traumatic and difficult time and one for which she is seeing little, if any,
hope for improvement. Secondly, the histories are those recorded by different
doctors who may well have had different perspectives and different perceptions
of what is important. … I find little surprising in the variations of the
plaintiff’s history in this case, particularly given the human tendency to
reconsider, review and summarize history in light of new information.

[73]        
I have considered all of the examples of what the defence alleges were
Mr. Drodge’s lack of reliability.

[74]        
I found Mr. Drodge’s testimony regarding the frequency with which
he drove after the accident troubling because he was unable to provide any
satisfactory explanation as to why the kilometres driven as reported in his tax
returns were higher after the accident than what he had indicated in his
testimony in chief. However Mr. Drodge did not prepare his own tax returns.
Although this inconsistency is one consideration to be weighed in the Court’s
overall assessment, I have concluded on balance that it is not particularly
significant in the context of his evidence as a whole.

[75]        
Nor am I persuaded that any inconsistencies in Mr. Drodge’s evidence
regarding the extent of his involvement in the A.M.I. Clothing business (“AMI”),
operated by his son, Ben Drodge, are particularly significant in the context of
the evidence overall. I accept that in Mr. Drodge’s view his limited
participation in the business, including the use of his credit card for
business purposes, did not constitute active involvement in the business. I
address the AMI business later in these reasons for judgment under the section
entitled “Loss of Earning Capacity”.

[76]        
I address the alleged unreliability of evidence on his low back
condition below under the section entitled “Low Back Injuries”.

[77]        
Overall I found Mr. Drodge’s evidence credible. While I accept that
Mr. Drodge’s evidence was sometimes vague and he was a poor historian, he
testified in an unadorned and straightforward way. I do not find that
Mr. Drodge embellished or exaggerated the nature or severity of his
symptoms to advance his litigation objectives. Notably, none of the experts that
treated or examined Mr. Drodge suggested that he was malingering or
exaggerating his complaints. Moreover, the observations by Mr. Drodge’s
wife, daughter, and son, whose evidence on this point I accept, all corroborate
Mr. Drodge’s continuing complaints.

Low Back Injuries

[78]        
I find that Mr. Drodge continues to experience low back symptoms,
including occasional very sharp and “brutal pain”. On his “good days” he can
walk 20-30 minutes. Typically, however, he can only walk a few blocks before
his back becomes symptomatic. On his “bad days” he has difficulty walking and
does not leave the house.

[79]        
In considering the issue of Mr. Drodge’s low back injury it is important
to keep in mind the analytical distinction between determining causation and
assessing the evidence for damages, since different principles govern the two
questions: T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA
670 at para. 16.

[80]        
It is common ground that the accident caused an aggravation of
Mr. Drodge’s pre-existing chronic low back problem. The heart of the
dispute in this case is an assessment of damages—was that aggravation time
limited or were the accident and his pre-existing back condition both
contributing causes of his current back pain: Farrant v. Laktin, 2011
BCCA 336. This is a crucial issue because the defendants are only responsible
for any increased aggravation of Mr. Drodge’s pre-existing back problem: Iwanik
v. Hayes, 2011 BCSC 812 at para. 131. Mr. Drodge is not entitled
to recover a sum that represents complete recovery because he was not a
completely healthy person at the time of the accident.

[81]        
In Athey v. Leonati, [1996] 3 S.C.R. 458, Major J. summarized the
governing principles at para. 35:

The so-called “crumbling skull”
rule simply recognizes that the pre-existing condition was inherent in the
plaintiff’s “original position”. The defendant need not put the plaintiff in a
position better than his or her original position. The defendant is liable
for the injuries caused, even if they are extreme, but need not compensate the
plaintiff for any debilitating effects of the pre-existing condition which the
plaintiff would have experienced anyway. The defendant is liable for the
additional damage but not the pre-existing damage:  Cooper-Stephenson, supra,
at pp. 779-780 and John Munkman, Damages for Personal Injuries and Death
(9th ed. 1993), at pp. 39-40. Likewise, 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:  Graham v. Rourke,  supra;
Malec v. J. C. Hutton Proprietary Ltd., supra; Cooper-Stephenson,
supra, at pp. 851-852. This is consistent with the general rule that the
plaintiff must be returned to the position he would have been in, with all of
its attendant risks and shortcomings, and not a better position.

[Underlining in original.]

[82]        
ICBC asserts that the aggravation to Mr. Drodge’s low back
condition was time limited, and that his current low back symptomatology is the
result of his longstanding low back condition and not the motor vehicle
accident. They ground their submissions primarily on Dr. Arthur’s opinion
that the back complaints Mr. Drodge reported in July 2009 were not
related to the accident, and Dr. Teal’s opinion that while Mr. Drodge
suffered an aggravation of his pre-existing back condition, it is likely that
he had regained his pre-accident status. Mr. Drodge argues that on this
point the opinion of his family physician, Dr. Smart, which I have already
discussed in my summary of the evidence, should be preferred.

[83]        
Beyond Dr. Teal and Dr. Arthur’s general remarks, there was no
cogent medical evidence adduced regarding the predictable natural path of
Mr. Drodge’s pre-existing back condition had there been no accident.

[84]        
Dr. Teal conceded in cross-examination that ongoing management of
chronic low back pain without neurological symptoms is not part of his
practice.

[85]        
In cross-examination Dr. Arthur acknowledged that because of his
pre-existing back condition Mr. Drodge was more susceptible to sustaining
a back injury in the accident. He also conceded that a patient’s clinical
presentation over time is a key factor in determining the cause of their
symptoms.

[86]        
Initially in his June 4, 2007 report, Dr. Smart observed that
Mr. Drodge’s low back pain and limitation of function appeared to have
returned to their pre-motor vehicle accident levels of severity. In his August 27,
2007 report, Dr. Smart states that while Mr. Drodge’s low back pain
and limitation of function appear to have returned to their pre-motor vehicle
accident levels of severity, exacerbations of his low back pain were
anticipated in the future. He also notes that “it will be difficult to
determine whether exacerbations of his low back pain are related to his October 22,
2006 accident, or due to progression of his pre-existing condition.” However,
in his October 14, 2010 report Dr. Smart’s opinion changed. Dr. Smart
states that although Mr. Drodge had low back pain for several years prior
to the accident, the severity of his low back pain “has increased”
significantly since the accident. He concludes that Mr. Drodge’s low back
pain has progressed to a level of severity that would not have otherwise
occurred over time through normal daily activity.

[87]        
Dr. Smart’s initial opinion was made some seven and a half months
following the motor vehicle accident. Subsequent entries in his clinical
records demonstrate that Mr. Drodge continued to experience low back pain,
which is noted to be “excruciating and aggravated by minimal physical
activity.” Notably, Dr. Arthur, the expert called by the defendant,
acknowledged in cross-examination that a patient who has sustained a back
injury like the one Mr. Drodge sustained in the accident, would experience
fluctuations in their pain symptoms, and indeed he stated “lower-back pain is
notorious for that”.

[88]        
I have considered those entries in Dr. Smart’s records from 2002
through to August 2005 relating to Mr. Drodge’s reports of low back
pain, and Dr. Smart’s reports to the Workers’ Compensation Board from November 2002
to February 2004. Although Mr. Drodge clearly suffered from low back
pain, Dr. Smart observed that in the 36 month period prior to the motor
vehicle accident he had worked as a Class 1 driving instructor without
missing any work. Mr. Drodge was able to drive regularly from Vernon to
Kelowna to his place of employment. Moreover, Mr. Drodge had not reported
any episodic flare-ups from after August 2005 to the accident in October 2006.

[89]        
I also accept Mr. Drodge’s evidence that while he experienced
episodic flare-ups of his chronic low back pain prior to the motor vehicle
accident, he was nonetheless able to participate in a relatively active
lifestyle in which he camped, drove all-terrain vehicles, and enjoyed
recreational walking. He also enjoyed a very active intimate relationship with
his wife. These activities have been significantly restricted since the
accident. Contrary to the defence submissions, I am not persuaded that the fact
that Mr. Drodge was able to walk for his meals while in Richmond in July 2009
demonstrates that his evidence regarding his low back symptoms as a whole is
unreliable. While Mr. Drodge candidly acknowledged that after the accident
he has some “good days”, the preponderance of the evidence that I prefer
supports a finding that those days are less frequent than prior to the
accident. Mr. Drodge now experiences back symptoms with a greater
frequency, duration, and intensity than before the accident.

[90]        
On the totality of the evidence, I prefer Dr. Smart’s opinion that while
some progression of Mr. Drodge’s low back pain may have occurred in any
event, Mr. Drodge’s low back pain has progressed to a level of severity
that would not have occurred absent the injuries he sustained in the accident.

[91]        
In summary on this issue, I conclude that the injuries Mr. Drodge
sustained in the accident are materially contributing to his current low back
condition. Had the accident not occurred Mr. Drodge would have continued
to experience low back pain with periodic flare-ups, and there was some chance
that there would have been some progression of his pre-existing low back pain
over time. However, absent the defendants’ negligence Mr. Drodge would not
be experiencing the same severity and frequency of low back pain symptoms.
Insofar as a prognosis, he is not likely to experience any substantial
improvement in his low back condition.

Cervical and Upper Back Injuries

[92]        
It is uncontroversial that Mr. Drodge sustained soft tissue
injuries in his neck and upper back.

[93]        
By December 14, 2006, Mr. Drodge’s pain in his neck and upper
back had improved significantly and by the end of 2007 I find that the pain
symptoms in his neck and upper back had resolved.

Headaches/Concussion/Mild Traumatic Brain Injury

[94]        
I find that Mr. Drodge has suffered persistent tension-type
headaches since the accident, and I accept his evidence as to the frequency and
severity of those headaches. While he experiences headaches five to six days a
week, which range from mild to severe, there is no predictable pattern to the
headaches. He described the headaches as a tightness in his head with an accompanying
pounding sensation. Two to three days each week he has headaches so severe they
require him to lie down. There is no particular trigger for the headaches. He
also has problems sleeping; he frequently only sleeps four hours per night.

[95]        
I also find that Mr. Drodge has suffered some degree of cognitive
impairment since the accident, including problems with concentration, memory,
and difficulties with directions and simple arithmetic. My findings are
supported by the testing conducted by Dr. Miller in 2007, and the evidence
of Mr. Drodge’s wife, son, and daughter which I accept on this point. I
make this finding notwithstanding Dr. Teal’s evidence that on his one
interview in August, 2010, Mr. Drodge demonstrated normal concentration
and focus. I am fortified in my conclusions by my own observations of
Mr. Drodge. It was apparent during his testimony that on occasion he had
genuine difficulties maintaining focus and with his memory.

[96]        
Although it is common ground that Mr. Drodge suffered headaches
following the accident, the principal controversy that arises is whether
Mr. Drodge suffered a concussion or mild traumatic brain injury in the
accident, and as a result developed post-concussion syndrome with associated
headaches and cognitive difficulties.

[97]        
The weight of the medical evidence mandates that a pre-condition for a
diagnosis of concussion/mild traumatic brain injury is a finding of some
altered or reduced state of consciousness or mentation immediately following
the impact.

[98]        
Mr. Drodge argues that he did experience an altered state of
consciousness immediately after the accident. He asserts that occurred prior to
the arrival of the emergency personnel, which was approximately 16 minutes
after the accident. I have considered Mr. Drodge’s submission that because
there was some brief period of time when Mr. Drodge did not respond to his
daughter in the vehicle immediately post-impact, the Court should find that
Mr. Drodge did experience some altered state of consciousness. I found
that his daughter’s evidence on this point was not reliable. She candidly
admitted that at the time she was shaken by the trauma, her overwhelming
concern was the safety of her two children in the back seats and that in the
circumstances “even a word seemed to take a long time”. On the evidence I find
that she was unable to realistically estimate the interval between her speaking
to her father and his response. Moreover, any delay in Mr. Drodge’s
reaction could also have occurred as a result of the shock from the traumatic
event.

[99]        
Mr. Drodge also asserts that because he has gaps in his memory of
post-accident events it can reasonably be inferred that he did experience some post-traumatic
amnesia immediately following impact.

[100]     Mr. Drodge’s
next memory after seeing the defendants’ oncoming vehicle was his daughter
telling him to move because she would fall on him once she unbuckled her
seatbelt; he distinctly recalls his daughter yelling at him. At trial he also
stated that he clearly recalls standing on top of the truck and telling a bystander
at the accident scene that he was dizzy and his head hurt. The most prominent
detail in his memory was his concern for the safety and well-being of his
grandchildren. He candidly acknowledged that he does not know whether he lost
consciousness in the accident or not.

[101]     Mr. Drodge
maintains that he has some difficulty distinguishing the details of the
accident that he actually recalls from those details his daughter subsequently
related to him. He also testified that he cannot specifically recall his interactions
with the ambulance crew at the scene, or his ride in the ambulance, and that he
has vague memories of his attendance at the hospital. Mr. Drodge was mistaken
about who drove him to Sooke; he recalled that it was Susan Drodge.

[102]     Neither
the ambulance report nor the emergency department’s physician’s assessment make
any reference to amnesia or altered or reduced levels of consciousness or
concussion. I accept Dr. Teal’s evidence that post-traumatic amnesia is
maximal in the minutes and hours after the accident. Significantly in my view,
Mr. Drodge testified in the passages from his examination for discovery put
to him at trial regarding his reaction after the impact, including his concern
for the welfare of his grandchildren and his apprehension of the immediate
dangers of remaining in the vehicle. He also reported to Dr. Miller, Dr. Solomons,
and Dr. Teal in quite clear and detailed terms his immediate concern about
the welfare of his grandchildren and his responses and actions following the
impact. On October 25, 2006, Mr. Drodge also provided Dr. Smart
with a detailed account of the accident circumstances without any indication
that it was not from his own memory.

[103]     On the
balance of probabilities, I am not persuaded that the totality of the evidence
supports a finding that Mr. Drodge experienced a reduced level of
consciousness or mentation immediately following impact.

[104]     Dr. Teal,
the only neurologist to have assessed Mr. Drodge, opined that it is very
unlikely that Mr. Drodge sustained a concussion or mild traumatic brain
injury in the accident. On this point his evidence was careful and thorough,
and in my view was not shaken on cross-examination. This conclusion is also
supported by the opinion of Dr. Miller, whose clinical diagnostic formulation
regarding Mr. Drodge was of an adjustment disorder with mixed anxiety and
depression, and pain disorder associated with both psychological factors and a
general medical condition. While I recognize that Dr. Miller’s assessment
was conducted in April of 2007, I also find on balance that
Mr. Drodge’s symptoms and level of function have not appreciably changed
since that assessment.

[105]     I turn to
address Dr. Smart’s diagnosis of concussion and post-concussion syndrome.
It emerges from the evidence that Dr. Smart was attempting to diagnose
Mr. Drodge’s symptoms over a considerable period of time. He conceded in
cross-examination that post-accident entries demonstrate that he was
considering several alternate diagnoses of Mr. Drodge’s symptoms in the
weeks after the accident, including a diagnosis of subdural haematoma, and an
acute post-traumatic stress disorder. Notably, he did not have the ambulance
crew report or the Victoria General Hospital records prior to formulating his
opinion.

[106]     I have
concluded that the constellation of symptoms that Dr. Smart bases his
concussion diagnosis upon are not sufficiently specific to be diagnostic. I prefer
Dr. Teal’s opinion that it is unlikely that Mr. Drodge sustained a
mild traumatic brain injury. I find that the headache, cognitive, and other
symptoms attributed by Dr. Smart to post-concussion syndrome are
non-specific symptoms. I accept Dr. Teal’s evidence that there are “multiple
reasons for dizziness, for headaches, for sleep disturbances, for mood
disturbance … they are not necessarily post-concussional symptoms.” Further,
the expert evidence establishes that cognitive difficulties including poor
concentration and mood disturbances can develop as a consequence of severe
headaches.

[107]     In summary
on this issue, I have concluded that on balance the preponderance of the
evidence does not support a finding that Mr. Drodge suffered either a mild
traumatic brain injury or concussion/post-concussion syndrome.

[108]     Although I
have concluded that the evidence falls short of establishing a diagnosis of
concussion/post-concussion syndrome, I do accept that Mr. Drodge has
suffered chronic headaches and associated cognitive symptoms for some four and
a half years since the accident.

[109]     Dr. Teal acknowledged
in cross-examination that Mr. Drodge’s headaches after the accident were
post-traumatic headaches and that he had cervicogenic headaches attributable to
his neck and soft tissue injury. However, Dr. Teal testified that “the
component of headaches that are attributable to both neck injury and soft
tissue head injury—have probably long since passed and there are other factors
that are now in play… it is not my opinion that his persistent headaches are
directly attributable to the trauma.”

[110]     It emerges
from the authorities that the primary test to be applied in determining
causation is commonly articulated as the but for test. A defendant will
be fully liable to a plaintiff even if other causal factors were at play in
producing the harm as long as the defendant is part of the cause of the injury.
Athey v. Leonati, [1996] 3 S.C.R. 458; Blackwater v. Plint, 2005
SCC 58, [2005] 3 S.C.R. 3; Resurfice Corp. v. Hanke, 2007 SCC 7.

[111]     While I
recognize the dangers inherent in applying simple temporal reasoning when determining
legal causation, on the totality of the evidence I find a causative link
between Mr. Drodge’s current headache symptoms and the accident. I have
concluded that Mr. Drodge has established that he would not have
experienced his headache symptoms and the associated cognitive difficulties but
for the occurrence of the accident. Moreover, in applying the principles
articulated in Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318 at
para. 67, I have concluded that his condition is involuntary, beyond his
power to control, and has not been purposely prolonged to fulfill other
objectives.

[112]     In any
case, ICBC properly concedes that Mr. Drodge is entitled to recover
damages for these symptoms because there is a causal link between the
negligence of the defendants and the injury suffered by Mr. Drodge.

[113]     The expert
witnesses have expressed different views of the reasons for the prolongation of
Mr. Drodge’s chronic headache symptoms. Dr. Miller opined that
Mr. Drodge’s coping mechanisms are somewhat deficient and are contributing
to his cognitive difficulties and difficulties with pain management; he
diagnosed an adjustment disorder and pain disorder. For the purposes of
causation it is not necessary for the Court to determine as a matter of medical
diagnosis whether Mr. Drodge’s condition has some identifiable psychological
or emotional component which has in some way prolonged his disability, and
whether it is properly described as an adjustment disorder, a reaction to
stress, or is given some other label: Scott v. Erickson, 2009 BCSC 1298
at para. 69.

[114]     As referred
to above I accept the evidence of Mr. Drodge that he has suffered from
severe, persistent headaches since the accident, and that there has been a mild
impairment in his memory and concentration associated with his headaches.

[115]     Mr. Drodge’s
symptoms are very real and are at times debilitating. While it may be that one
could normally expect that someone in Mr. Drodge’s shoes would have
recovered by now, I find as a fact that his symptoms have persisted. The
evidence establishes that he is more irritable, easily frustrated, prone to
mood swings, and that he has suffered a diminution in confidence and
self-esteem. I find that his symptoms continue to plague him and accept his
evidence regarding the detrimental effect they have had on his life.

[116]     Having
found that, but for the accident, Mr. Drodge would not be in the injured
state in which he now finds himself, I turn to consider the likelihood of any
improvement in his condition.

[117]     Counsel
for ICBC urges this Court to find that Mr. Drodge’s prognosis is good. She
relies primarily on Dr. Teal’s opinion that it is very unusual for chronic
tension headaches to be significantly disabling, and that Mr. Drodge’s
symptoms can be expected to improve with appropriate headache management and
“resolution of his current stressors, including litigation and compensation
issues”. Dr. Teal offers the further opinion that Mr. Drodge’s
headaches have never been treated or properly addressed.

[118]     I note
that Mr. Drodge’s counsel did not object to Dr. Teal’s qualifications
to opine on the significance of litigation and compensation issues on
Mr. Drodge’s symptomatology, although he strenuously asserted in his
closing submissions that these factors are an improper consideration.
Dr. Teal did not elaborate on how resolution of litigation and
compensation issues might ameliorate Mr. Drodge’s symptoms. In my view his
comments lack sufficient specificity to be accepted as a cogent postulation
with respect to this plaintiff. In the result I have attached no weight to
Dr. Teal’s comments regarding Mr. Drodge’s prospects for improvement.

[119]     I reject
Dr. Teal’s opinion that Mr. Drodge’s headaches have never been
treated or properly addressed, and his opinion of the corresponding expectation
of improvement if they are managed appropriately. Mr. Drodge had a CT scan
of his brain which was reported as normal. As well, since the accident he has
been using non-narcotic analgesics and anti-inflammatories, and on occasion prescription
medication with codeine and hydromorphone. Dr. Smart had considered the
use of Amitriptyline, which was later recommended by Dr. Teal. Other than
the application of heat and ice and self-directed exercises, Dr. Teal
offered no other treatment protocol or symptom management regimen for
Mr. Drodge. In cross-examination Dr. Teal conceded that some
psychological counselling may be beneficial. As referred to earlier,
Mr. Drodge attended some psycho-therapy sessions in 2007. Despite these
efforts Mr. Drodge’s significant symptoms have persisted.

[120]     In the end
the question of Mr. Drodge’s prognosis is difficult. Taking into account
all of the opinion evidence of the experts which conflicted on this point, I
have concluded that Mr. Drodge is not likely to make a full recovery.
While Mr. Drodge may be able to develop better coping strategies to manage
his pain more effectively, and may experience some corresponding improvement in
his headache symptoms as well as his back symptoms, there is only a small
chance that he will improve to the degree that he will be employable.

Mitigation

[121]    
The defence submits that Mr. Drodge’s damages should be reduced by
his failure to mitigate his losses. In particular they point to the fact that
Mr. Drodge has not tried the Amitriptyline as proposed by Dr. Smart
in July of 2009 and July 2010, nor has Mr. Drodge pursued the
further physiotherapy suggested by Dr. Smart in January 2010. The
defence submits a reduction of non-pecuniary damages of 10-15% should be made
to reflect his failure to mitigate.

[122]    
It is well settled on the authorities that a plaintiff in a personal
injury action has a positive duty to act reasonably in mitigating his losses.
In Chiu v. Chui, 2002 BCCA 618 at para. 57, the Court articulated
the governing principles regarding mitigation in a personal injury claim as
follows:

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

[123]     In Gregory
v. Insurance Corporation of British Columbia, 2011 BCCA 144, the Court
describes the mitigation test as a subjective/objective one; the defendant must
establish that a reasonable patient in the shoes of the plaintiff, having all
information at hand that the plaintiff possessed, ought reasonably to have
undergone the recommended treatment. The Court emphasized at para. 53 that in
relation to the second aspect of the test the defendant must prove “the extent
if any to which the plaintiff’s damages would have been reduced” by the
recommended treatment.

[124]     Having
reviewed the legal principles, I now turn to the consideration of the evidence.

[125]     Firstly,
the evidence falls short of establishing that had Mr. Drodge taken the Amitriptyline
his headache symptoms would have improved. Amitriptyline, which was initially
introduced as an anti-depressant medication several years ago, is used in the
management of chronic headaches. Dr. Smart’s uncontradicted evidence was
that he was not aware of any controlled clinical trials that showed that this
medication would be an effective treatment for Mr. Drodge’s condition.
Dr. Teal provided no elaboration on his suggestion for the trial use of
Amitriptyline. His opinion at most establishes a reasonable inference that this
medication might afford some relief to Mr. Drodge. His opinion does not
meet the threshold mandated in the authorities for reducing an award.

[126]     While Dr. Smart
proposed trial use of Amitriptyline to Mr. Drodge in July 2009 and July 2010,
he never prescribed the medication after the accident. Furthermore, Dr. Smart
advised Mr. Drodge that there were significant side effects to Amitriptyline,
including sedation and dizziness. Mr. Drodge declined to take the
medication because of the potential side effects. It cannot be overlooked that
Mr. Drodge did in fact try several medications—including Emtec 30, a
non-narcotic analgesic with codeine, and hydromorphone, an opiate. The evidence
establishes that for the most part none of these medications had any
significant long-term effect on his headache symptoms. The hydromorphone also
bothered his stomach. I note that Dr. Smart had prescribed Amitriptyline
for Mr. Drodge prior to the accident in relation to his tinnitus, but
Mr. Drodge could not recall this and Dr. Smart’s records do not
document anything further in this regard.

[127]     In the end
I find that Mr. Drodge did not unreasonably refuse any treatment; rather,
he made informed decisions about his treatment in consultation with his
treating physician Dr. Smart. He has consistently followed
Dr. Smart’s advice to the best of his abilities. I also accept his
evidence that if Dr. Smart had recommended it Mr. Drodge would have
tried the Amitriptyline.

[128]     For
completeness I add that, since Dr. Teal’s recommendation for the
Amitriptyline was only received by Mr. Drodge in late 2010, I cannot
conclude his non-pecuniary damages should be reduced for a failure to mitigate.

[129]     With
respect to Dr. Smart’s recommendation that Mr. Drodge attend
physiotherapy, given Mr. Drodge’s financial constraints I am not persuaded
that it was unreasonable for him not to do so. Moreover, the defence has not
established on the evidence the potential benefits and the extent to which
Mr. Drodge’s damages would have been reduced had he attended physiotherapy
in January 2010.

[130]     In summary
on this issue, I am not persuaded by the defence argument that Mr. Drodge
has failed to mitigate.

DISCUSSION

[131]     I next
address Mr. Drodge’s claim for damages under the following headings:

a) Non-Pecuniary Damages;

b) Loss of Past Earning
Capacity and Loss of Future Earning Capacity;

c) Loss of Housekeeping
Capacity;

d) Cost of Future Care; and

e) Special Damages

Non-Pecuniary Damages

[132]    
Mr. Drodge seeks an award of $115,000-$225,000 for non-pecuniary
damages. Counsel for the defence concedes that Mr. Drodge sustained
injuries in the accident, but submits that the non-pecuniary damages be
assessed at $50,000.

[133]     Non-pecuniary
damages are intended to compensate a plaintiff’s pain, suffering, and loss of
enjoyment of life. The award should compensate a plaintiff for those damages he
has suffered up to the date of the trial and for those he will suffer in the
future. The essential principle derived from the authorities is that an award
for non-pecuniary damages must be fair and reasonable to both parties and
should be measured by the adverse impact of the particular injuries on the
individual plaintiff: Hmaied v. Wilkinson, 2010 BCSC 1074 at
para. 55.

[134]     The B.C.
Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34 at para. 46,
enumerated the factors to be considered in awarding non-pecuniary damages. The
non-exhaustive list includes: the age of the plaintiff; the nature of the
injury; the severity and duration of pain; the degree of disability; the
impairment of family, marital, and social relationships; and loss of lifestyle.
While fairness is assessed by reference to awards made in comparable cases, it
is impossible to develop a “tariff”; each case is decided on its own unique
facts: Lindal v. Lindal, [1981] 2 S.C.R. 629 at 637; Kuskis v.
Hon Tin, 2008 BCSC 862 at para.136.

[135]     It cannot
be overstated that the assessment of non-pecuniary damages is necessarily
influenced by the individual plaintiff’s personal experiences in dealing with
his injuries and their consequences, and the plaintiff’s ability to articulate
that experience: Dilello v. Montgomery, 2005 BCCA 56 at para. 25.

[136]     I have
concluded that as a result of the accident Mr. Drodge has suffered pain
and loss of enjoyment of his life. His injuries have significantly impacted his
life.

[137]     I accept
that he is now plagued with chronic headaches and some mild cognitive
impairment associated with concentration and memory.

[138]     The
injuries he sustained in the accident have impacted his family life.
Ms. Drodge moved to Vernon in 2004 to cohabit with Mr. Drodge, which
was only a few years prior to the accident. In embarking on their new life
together they shared a relatively active lifestyle, a lifestyle he perceives he
can no longer provide her because of his injuries. Their intimate relationship
has been adversely affected. His recreational activities have been
significantly restricted. He visits his daughter and her family on Vancouver
Island and his son and his family in 150 Mile House with considerably less
frequency because he finds the drive too difficult. He no longer participates with
his grandchildren in a variety of child-based activities.

[139]     I accept
that Mr. Drodge’s limitations have been distressful for him and have
cumulatively created a genuine emotional strain on him. Since the accident he
has become more introverted and on occasion irritable because of his pain. In
my assessment I have also considered the adverse impact on Mr. Drodge’s
self-esteem and his own perceived inability to be productive and pursue gainful
employment.

[140]     I have
concluded that Mr. Drodge suffered from chronic low back pain before the
accident, but not with the same frequency and intensity that he now
experiences: I find that his symptoms were exacerbated by the accident to a
moderate degree. As referred to earlier in these reasons for judgment, the
“crumbling skull” doctrine is pertinent as it recognizes that damages should
not put the plaintiff in a better position than he was prior to the tort: Niessen
v. Sepulveda and Miller, 2008 BCSC 1567. In assessing damages, I have taken
into account the likelihood that to some extent Mr. Drodge may have suffered
from increasing back symptoms even if the accident had not occurred: Zacharias
v. Leys, 2005 BCCA 560; Jokhadar v. Dehkhodaei, 2010 BCSC 1643 at paras. 109-111.

[141]    
I have considered the following cases cited by plaintiff’s counsel on
the issue the quantum of non-pecuniary damages: Mosher v. Sedens Estate,
1998 CarswellBC 1959; King v. Klessens, 1999 CarswellBC 1156; LeSavage
v. Lee, 1999 CarswellBC 1066; Shapiro v. Dailey, 2010 BCSC 770; Williamson
v. Suna, 2009 BCSC 576; White v. Gait, 2004 BCCA 517; Adamson v.
Charity, 2007 BCSC 671; and Lines v. Gordon, 2006 BCSC 1929.

[142]    
I have also considered the cases cited by defence counsel: Harris v. Zabaras,
2010 BCSC 97; Pavlovic v. Shields -and- Pavlovic v. Dickinson, 2009 BCSC
345; Salvatierra v. Vancouver (City), 2008 BCSC 537; and Greaves v.
Grace, 2008 BCSC 1529.

[143]     While the
authorities are instructive I do not propose to review them in detail as they
only provide general guidelines. I have reviewed all of the authorities
provided by both counsel, and considering Mr. Drodge’s particular
circumstances, and compensating him only for the increase in the exacerbation
of his low back symptoms and not for the effects of his pre-existing back
condition that he would have experienced in any case, I conclude a fair and
reasonable reward for non-pecuniary damages is $85,000.

Loss of Past Earning Capacity and Loss of Future Earning Capacity

Position of the Parties

[144]     Mr. Drodge
submits that he should receive an award of $247,000 for lost income up to the
date of trial and an award in the range of $375,000 for future loss of income
and diminished earning capacity.

[145]    
ICBC argues that, although Mr. Drodge sustained income loss as a
result of his accident-related injuries, within a year of the accident “from a
physical standpoint” Mr. Drodge should have been able to return to his
pre-accident occupation. They emphasize that his assertion of his headaches
being the major impediment to employability is difficult to assess because he
has made no effort to return to any form of paid employment, other than his
single attempt in January of 2007 to return to work as a driving instructor.
Moreover, they submit that if his damages are found to extend beyond the year
following the accident, those damages should be reduced to reflect
Mr. Drodge’s failure to find alternate employment.

Legal Framework

[146]     An award
for future loss of earning capacity represents compensation for a pecuniary
loss: Gregory v. Insurance Corp. of British Columbia, 2011 BCCA 144 at para. 32.
The legal principle that governs this assessment for loss of earning capacity
is that, insofar as is possible, the plaintiff should be put in the position he
or she would have been in but for the injuries caused by the defendants’
negligence: Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para. 185.
Compensation must be made for the loss of earning capacity and not for the loss
of earnings: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R.
229; X. v. Y, 2011 BCSC 944 at para. 182.

[147]     The recent
jurisprudence of the Court of Appeal has affirmed that the plaintiff must
demonstrate both an impairment to his or her earning capacity, and that there
is a real and substantial possibility that the diminishment in earning capacity
will result in a pecuniary loss. If the plaintiff discharges that
requirement, he or she may prove the quantification of that loss of earning
capacity either on an earnings approach or a “capital asset” approach: Perren
v. Lalari, 2010 BCCA 140 at para. 32. Regardless of the approach, the
court must endeavour to quantify the financial harm accruing to the plaintiff
over the course of his or her working career: Pett v. Pett, 2009 BCCA
232 at para. 19; X. v. Y at para. 183.

[148]     As recently enumerated by the court in Falati v.
Smith, 2010 BCSC 465 at para. 41, aff’d 2011 BCCA 45, the principles which inform the assessment of loss of earning
capacity include the following:

(1)      The standard of proof in relation to hypothetical or future
events is simple probability, not the balance of probabilities: Reilly v.
Lynn, 2003 BCCA 49 at para. 101. Hypothetical events are to be given
weight according to their relative likelihood: Athey v. Leonati, [1996]
3 S.C.R. 458 at para. 27.

(2)      The court must make allowances for the possibility that the
assumptions upon which an award is based may prove to be wrong: Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49 B.C.L.R.
(2d) 99 (C.A.). Evidence which supports a contingency must show a “realistic as
opposed to a speculative possibility”: Graham v. Rourke (1990), 75 O.R.
(2d) 622 at 636 (C.A.).

(3)      The court must assess damages for loss of earning capacity
and not calculate them mathematically: Mulholland (Guardian ad litem of) v.
Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43. The overall
fairness and reasonableness of the award must be considered: Rosvold v.
Dunlop, 2001 BCCA 1 at para. 11. The assessment is based on the
evidence, taking into account all positive and negative contingencies.

[149]     Although a
claim for “past loss of income” is often characterized as a separate head of
damages, it is properly characterized as a component of loss of earning
capacity: Falati at para. 39. It is a claim for the loss of
value of the work that an injured plaintiff would have performed but was unable
to perform because of the injury: Rowe v. Bobell Express Ltd., 2005 BCCA
141 at para. 30; Bradley at paras. 31-32; X. v. Y at
para. 185.

[150]    
This court in Falati at para. 40, summarized the pertinent
legal principles governing the assessment of post-accident, pre-trial loss of
earning capacity and concluded that:

[40]      … the determination of a plaintiff’s prospective
post-accident, pre-trial losses can involve considering many of the same
contingencies as govern the assessment of a loss of future earning capacity.
… As stated by Rowles J.A. in Smith v. Knudsen, 2004 BCCA 613, at
para. 29,

“What would have happened in the past but for the injury is
no more ‘knowable’ than what will happen in the future and therefore it is
appropriate to assess the likelihood of hypothetical and future events rather
than applying the balance of probabilities test that is applied with respect to
past actual events.”

[151]    
With respect to the loss of earning capacity from the accident to date
of trial, the defendants are only liable for the net income loss, as defined in
s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231.
In Lines at para. 184, the Court of Appeal held that “it was the
intention of the Legislature to give a discretion to the judge to determine
what period or periods are appropriate for the determination of net income loss
in all of the circumstances”.

i. Loss of Earning Capacity to the Date of Trial

[152]     ICBC does
not seriously dispute, and I find, that the injuries Mr. Drodge sustained
as a result of the accident prevented him from returning to any employment for
at least one year. The key controversy is whether Mr. Drodge has
demonstrated a loss of his earning capacity beyond one year.

[153]     For the
reasons that follow I have concluded that Mr. Drodge has proven that the
injuries he sustained in the accident have impaired his earning capacity to the
date of trial.

[154]     Dr. Smart
stated in his October 14, 2010 opinion that Mr. Drodge is not capable
of physical work due to his low back pain, and that his ability to do sedentary
work was limited by his headaches and positional aggravation of his low back
pain when sitting.

[155]     Dr. Miller,
the neuro-psychologist who assessed Mr. Drodge, opined that
Mr. Drodge was severely challenged in terms of being employable. He based
his opinion on Mr. Drodge’s pain and associated emotional difficulties; he
also identified as a critical factor the unpredictability and the variable
severity of Mr. Drodge’s headaches, as well as his accompanying cognitive
problems with attention, concentration, and impaired memory. Defence counsel
urges this Court to conclude that Dr. Miller’s global assessment of
functioning scale rating of 70-75 for Mr. Drodge was not in keeping with
someone who is totally disabled. Dr. Miller stated that that is an
assessment which suggests an individual is experiencing some problems “in his
day to day life that doesn’t allow him to meet a lot of the challenges in a way
that he would have before, and that it would reflect a diminishment from his
level prior to the accident.” I am not persuaded that this rating undermines Dr. Miller’s
opinion that the constellation of Mr. Drodge’s symptoms, and in particular
the severity and unpredictability of his headaches, would “undoubtedly
interfere with his employability”.

[156]     Dr. Teal
testified that “it is very uncommon for this pattern of headaches to be
disabling in male individuals.” He assessed Mr. Drodge on one occasion. He
stated that in his view, within the confines of “neurology, cognitive function,
concentration and attention, elemental neurological function, I see no reasons
why he shouldn’t resume working as a driving instructor.” However,
Dr. Teal’s opinion does not take into account the severity and
unpredictability of Mr. Drodge’s headaches, and the very real and
persistent symptoms experienced by Mr. Drodge. As I have stated earlier in
these reasons, the evidence I prefer supports a finding that Mr. Drodge also
suffers from some mild impairment in his memory and concentration. While it may
be “uncommon”, I have found that for Mr. Drodge the more severe headaches
are genuinely debilitating.

[157]     I have
considered the defence submissions regarding Mr. Drodge’s involvement in
AMI. AMI is an unincorporated custom screen-printing and graphic design
clothing business operated by Mr. Drodge’s son, Ben Drodge.
Mr. Drodge is a 50% owner of the business. While over the years
Mr. Drodge has had some involvement in client development, he has never
drawn any income from the business. I am not persuaded that it can reasonably
be inferred from Mr. Drodge’s occasional activities relating to the
business, and his informal visits with his son at AMI’s place of business after
the accident, that he is competitively employable.

[158]    
I have concluded that Mr. Drodge’s headache symptoms and associated
memory and concentration problems have been a significant impediment to him
returning to competitive employment. He is limited by the severity and
unpredictability of his headaches and some mild cognitive impairment. I accept
Mr. Drodge’s uncontroverted evidence that as a Class 1 driving
instructor his concentration and memory problems created a potential danger for
the public and his students, and that unimpaired levels of concentration are
critical to the discharge of the duties of any type of driving instructor.
Moreover, because of the unpredictability of his headaches he is unable to
commit to any structured work schedule. Mr. Basi, the owner of a driving
school in Victoria, confirmed Mr. Drodge’s evidence that it is not
feasible or practical to hire someone as a Class 1 driving instructor on a
part-time or casual basis.

[159]     I have
also concluded that there has been a modest diminishment of his earning
capacity consequent on his physical limitations caused by the low back injuries
he suffered in the accident.

[160]     Both Dr.
Arthur and Dr. Teal stated that in their view Mr. Drodge is not disabled from
returning to his driving instructor position by virtue of his low back
condition. However neither Dr. Arthur nor Dr. Teal appeared to factor
into their respective assessments either the severity of his current low back
symptoms or the physical demands of an instructor position. I find that Mr.
Drodge, in discharging his duties as a Class 1 driving instructor, was
required to regularly climb in and out of semi-trucks and trailers, and to
supervise and demonstrate safety inspections, which necessarily includes some
physical work. I prefer Dr. Smart’s opinion that due to Mr. Drodge’s
low back pain Mr. Drodge is not capable of physical work. In short I
conclude that because of his low back pain after the accident Mr. Drodge
was unable to return to his position as a Class 1 driving instructor because he
was no longer capable of performing the physical requirements of the position.

[161]     I have
concluded that on the totality of the evidence Mr. Drodge is entitled to
an award of past loss of earning capacity. I turn next to consider the
quantification of that loss.

[162]     To assist
the court in this assessment each side tendered reports of an economist:
Dr. Young on behalf of Mr. Drodge; and Mr. Hildebrand on behalf
of ICBC. Mr. Hildebrand calculated statistical labour market contingencies
in his report.

[163]     It is
uncontentious that at the time of the accident Mr. Drodge was earning $24
per hour plus vacation pay and working a 40 hour workweek at Extreme Pro Trucking.
He had been working at Extreme Pro Trucking for approximately eight months
before the accident. His counsel submits that the loss of earning capacity
should be quantified by the amount of wages Mr. Drodge would have earned
if his capacity had not been impaired by the injuries he sustained in the
accident. The gross wage loss from the date of the accident to the date of the
trial, approximately 52 months, would have been $232,573. This gross figure is
based on an assumption that Mr. Drodge’s earning rate would have followed
the wage index in B.C. for the relevant period.

[164]     However,
the assessment is not as straightforward as is contended by Mr. Drodge’s
counsel.

[165]     In my
view, the measure of his loss is not properly a calculation based on the
inflation-increased value of 100% of Mr. Drodge’s accident-date income. Although
this point was not addressed on the evidence, it is in my view appropriate to
consider that there was some chance that his wages may not have increased,
according to the wage indexes referred to by the economists, either up until the
date of trial or thereafter.

[166]     The
defence asserts that Mr. Drodge’s earning history as a driving instructor
is a relevant consideration. In 2004, his tax returns reflect an employment
income of $31,119 plus a WCB top-up of $4,074, and $23,993 of employment income
in 2005. I accept that there was some chance that Mr. Drodge would not
have been employed on a full-time basis as a driving instructor from the date
of the accident to the date of trial. However, I have also factored into my
assessment the evidence of Mr. Basi, who as I referred to earlier is the
owner of a driving school in Victoria, and whom I found to be a credible
witness. He considers it desirable to hire older, experienced drivers. His
evidence supports a finding that there is market in B.C. for qualified Class 1
driving instructors.

[167]     In
assessing this component of the award I have also considered the possibility
that if the accident had not occurred Mr. Drodge’s pre-existing back
condition may have deteriorated and interfered with his ability to regularly
commute to Kelowna or elsewhere for employment or to sustain full-time
employment as a Class 1 driving instructor.

[168]     In
assessing all of the evidence and taking into account all of the contingencies,
including the negative contingency that Mr. Drodge may not have been
employed on a full-time basis from the date of the accident to the date of the
trial, I exercise my discretion as follows: I assess the gross value of Mr. Drodge’s
loss of earning capacity from the date of the accident to the end of December 2006
as $9,500, and from January 2007 to the date of trial as $140,000, for a
total of $149,500 gross.

[169]     The
defence submits that any award should be reduced to reflect Mr. Drodge’s
failure to mitigate his damages by finding alternate work. I do not accept that
it is a tenable proposition that a 62 year old man who for the most part has
performed semi-skilled physical and truck-driving-related jobs over his entire
working life could have realistically pursued alternate forms of employment
such as bookkeeping. Moreover, the unpredictability of his headaches leaves him
unable to commit to any type of structured work schedule. In the result I have
not deducted the award for loss of past earning capacity on account of
Mr. Drodge’s failure to mitigate.

[170]    
In summary on this issue I conclude that this results in a total past
loss of income of $149,500 for the period from October 2006 to trial. As Mr. Drodge
is only entitled to recover his net income losses, I direct counsel to carry
out the necessary calculations in order to determine the appropriate net
loss. They may apply if they are unable to agree.

ii. Loss of Future Earning Capacity

[171]     Mr. Drodge
submits that he is entitled to an award of $375,000 for a loss of future income
earning capacity. The defence submits that Mr. Drodge has not met the
burden of proof in establishing that he has suffered a diminishment of his
future earning capacity attributable to the accident. They also submit that to
the extent Mr. Drodge’s low back restricts his employment capacity it is
not related to the accident, and accordingly there should be no award for
diminishment of capacity consequent on the low back injuries he suffered in the
accident. Insofar as the headaches, the defence forcefully contends that his
symptomatology should abate with the proper management of his headaches and the
conclusion of this litigation.

[172]     The
essential task of the Court is to compare the likely future of the plaintiff’s
working life if the accident had not happened with the plaintiff’s likely
future working life after the accident: Gregory at para. 32; Rosvold
at para. 11.

[173]     As
discussed earlier in these reasons for judgment, I have concluded that Mr. Drodge’s
accident-related injuries have impaired his earning capacity. The limitations
caused by the injuries in the accident have rendered him less capable overall
from earning income, rendered him a less marketable and attractive employee, and
have taken from him the ability to take advantage of all job opportunities that
might otherwise have been open to him. The preponderance of the evidence
demonstrates that there is a likelihood that this impairment will harm
Mr. Drodge’s earning capacity into the future. For the reasons that follow
I have also concluded that on account of his accident-related injuries and
consequent impairment of his earning capacity there is a real and substantial
possibility that Mr. Drodge will suffer some future pecuniary loss. 

[174]     Mr. Drodge
was 62 years old as of the date of trial. Although Mr. Drodge’s counsel
points to the fact that Mr. Drodge’s wife is eight years younger than him,
and the fact that he has a mortgage on his home, I am not persuaded, given his
health prior to the accident and his pre-existing back condition that there is
a realistic chance that absent the accident the plaintiff would have worked
into his 70’s. My best assessment of the evidence is that absent the accident
there was a real and substantial possibility that Mr. Drodge would have
worked until somewhere between the ages of 65-67. It is not possible to
pinpoint with any precision where in the range his tolerances may lie.

[175]     In my
assessment I have also considered that that the prospects of his employability
have diminished because of the interruption in his working life. The
interruption in his working life for some four-and-a-half years that has
occurred as a result of the accident has, for practical purposes, made it
unlikely that he will be in a position to resume employment or establish the
level of income he had before the accident. Moreover, he would have to
requalify because his instructor’s licence has lapsed.

[176]     Having
found that Mr. Drodge’s future earning capacity is diminished, and that
there is a real and substantial possibility that the impairment of his capacity
will generate a pecuniary loss, I must now decide the companion issue of what,
in light of all the circumstances, he should be awarded as compensation.

[177]     Both
economists provided calculations intended to assist the court in the evaluation
of Mr. Dodge’s future income loss. The economists’ calculations were based
on the assumption that absent the accident Mr. Drodge would have been
earning approximately $56,000 per year as of the date of trial. This sum
represents the equivalent of earning $50,000 per annum in 2006 after applying
average wage indexing.

[178]     Dr. Young
calculated the future earnings without the accident, factoring in survival
rates and discounting and adjusting for the effects of unrelated disability. In
his report he has not taken into account any labour market contingencies. For the
purposes of the report Dr. Young assumed that Mr. Drodge would work
until age 70 or 75. However, I have concluded that it was unlikely that, absent
the accident, he would have worked many years past age 65.

[179]     Mr. Hildebrand
incorporated in his calculations general negative labour market contingencies,
including voluntary or involuntary withdrawal from the workforce.
Mr. Hildebrand’s report demonstrates how Dr. Young’s multipliers are
impacted when employment or labour market contingencies are taken into account.
While I found both economists’ reports of assistance in outlining possible
parameters for assessing the loss of capacity, the process of quantification is
an assessment based on the evidence and not an arithmetical calculation.

[180]     It is
well-recognized that unknown contingencies and uncertain factors make it
impossible to calculate future earning capacity with any precision. The
evidence in this case mandates that in my assessment, I take into account the
following contingencies:

(i) even if the accident had not
occurred, Mr. Drodge’s pre-existing low back condition may have impacted
his employability as a driving instructor. Given the medical evidence this contingency
must be given more weight in assessing his future loss than the loss of earning
capacity to the date of trial;

(ii) the evidence in this case also
mandates that I take into account the negative contingency that
Mr. Drodge, even without the accident, may not have maintained full-time
employment as a driving instructor, and that he may not have continued to earn
as high a wage as he was earning as of the date of the accident; and

(iii) there is a small chance that
in the future Mr. Drodge’s symptoms will improve such that he will be able
to resume employment.

[181]     For
completeness I add that the evidence does not support a finding that absent the
accident there was a realistic chance that Mr. Drodge would have derived
any future income from AMI. As I stated earlier, I find that Mr. Drodge’s
participation in the business has always been focussed on assisting his son,
and he never realistically anticipated earning any income from the business.

[182]     Taking
into account all of the evidence and the relevant negative and positive
contingencies, I assess Mr. Drodge’s loss of future earning capacity from
the date of trial as $65,000. I am satisfied that in all the circumstances this
is a fair and reasonable award.

Loss of Housekeeping Capacity

[183]    
Mr. Drodge seeks an award of $30,000 for pre-trial loss of
housekeeping capacity and $50,000 for future impairment of his housekeeping
capacity. The defence submits that the evidence does not support such a claim.

Legal Framework

[184]    
In Dykeman v. Porohowski, 2010 BCCA 36, Newbury J.A. at
para. 28 summarized the governing principles with respect to awarding damages
for the loss or impairment of housekeeping capacity. She affirmed that damages
for the loss of housekeeping capacity may be awarded even though the plaintiff
has not incurred any expense because housekeeping services were gratuitously
replaced by a family member. Recovery may be allowed for both the future loss
of the ability to perform household tasks as well as for the loss of such
abilities prior to trial. The amount of compensation awarded must be
commensurate with the plaintiff’s loss: Dykeman at para. 29; X.
v. Y at para. 246.

[185]    
In assessing damages, the authorities mandate that the court must
carefully scrutinize the gratuitous services done by the family member. A
relatively minor adjustment of duties within a family will not justify a
discrete assessment of damages: Campbell v. Banman, 2009 BCCA 484 at
para. 19. In Dykeman at para. 29, Madam Justice Newbury
cautioned that:

Instead, claims for gratuitous
services must be carefully scrutinized, both with respect to the nature of the services
– were they simply part of the usual ‘give and take’ between family members, or
did they go ‘above and beyond’ that level? – and with respect to causation –
were the services necessitated by the plaintiff’s injuries or would they have
been provided in any event?

[186]     Having
reviewed the basis for the assessment, I now turn to a consideration of the
evidence.

Discussion

[187]    
For the reasons set out below I have concluded that the evidence falls
short of establishing an award for loss of housekeeping capacity.

[188]    
Susan Drodge testified that after the accident she hired housekeeping
assistance on four occasions. The evidence does not show that this was
necessitated because Mr. Drodge formerly performed these housekeeping
duties; rather, it was because she has commenced working two jobs and did not
have the time or the energy to perform her usual housekeeping duties. While I
accept that there has been a minor adjustment of duties between Mr. and Mrs. Drodge
since the accident I am not persuaded that in itself justifies a discrete award
of damages.

[189]    
Insofar as yard and outdoor maintenance, Mr. Drodge continues to
cut the grass—albeit with some difficulty. However, this is properly considered
as a factor in the assessment of his non-pecuniary damages. Mr. Drodge
says that he can no longer perform the heavier yard and outdoor tasks. However
in August 2005 Mr. Drodge reported to Dr. Smart that he was unable to
perform yard work, bending and stooping without experiencing an aggravation of
his low back pain. While that may have been an isolated flare-up, it can
reasonably be inferred from the totality of the evidence that although able to
perform his duties as a Class 1 driving instructor, Mr. Drodge was experiencing
some difficulties with the heavier outdoor tasks and yard work even prior to
the accident.

[190]    
I have concluded that absent the accident his pre-existing low back
condition likely would have impaired his ability to do heavy yard work. In the
result, I make no award for loss of housekeeping capacity.

Cost of Future Care

Position of the Parties

[191]     Mr. Drodge
seeks compensation for the cost of future care in the range of $80,000 –
$100,000. Mr. Drodge relies on the evidence of Mary-Jo Mulgrew, a
registered occupational therapist. She conducted a home assessment interview
with Mr. Drodge on September 9, 2009, and provided a cost of future
care assessment.

[192]     ICBC
disputes her recommendations and submits that a generous allowance for future
care would be $5,000, calculated as follows—$2,000 for non-prescription
medication, $1,000 for prescription medication and $2,000 for counselling
treatment.

Legal Framework

[193]    
There is no dispute regarding the legal principles governing the assessment
of this award. After articulating that the basis for an award for future care
is providing for “what is reasonably necessary on the medical evidence to
promote the mental and physical health of the plaintiff” (at 78), the court in Milina
v. Bartsch (1985) (1990), 49 B.C.L.R (2d) 33 (S.C.); aff’d (1987) (1990),
49 B.C.L.R. (2d) 99 (C.A.), summarized the pertinent principles at 84:

…The test for determining the appropriate
award under the heading of cost of future care, it may be inferred, is an
objective one based on medical evidence.

These
authorities establish (1) that there must be a medical justification for claims
for cost of future care; and (2) that the claims must be reasonable.

[194]     In
assessing what is reasonably necessary to preserve the plaintiff’s health, the
court should examine whether on the evidence the plaintiff has used the items
or services in the past and whether the plaintiff will likely use the items or
services in the future: Izony v. Weidlich, 2006 BCSC 1315 at para. 74;
Penner v. Insurance Corporation of British Columbia, 2011 BCCA 135 at paras. 12-14;
X. v. Y at para. 265.

[195]     The B.C.
Court of Appeal has recently clarified, in Gregory v. ICBC, 2011 BCCA
144, that determining whether an item or service is medically justified is not
limited to what medical doctors recommend; rather, it can include
recommendations from a variety of healthcare professionals such as a
rehabilitation expert. However, the authorities mandate that the court find an
evidentiary link between the injuries found by medical doctors and the care or
services recommended by qualified healthcare professionals: Gregory at para. 39.
The Court of Appeal in Penner observed that “a little common sense
should inform claims under this head, however much they may be recommended by
experts in the field”: para. 13; X. v. Y at para. 266.

[196]     The
assessment of damages for cost of future care necessarily entails the
prediction of future events and an assessment of the care that would be in each
individual plaintiff’s best interests: Courdin v. Meyers, 2005 BCCA 91,
at para. 34; Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9,
[2002] 1 S.C.R. 205, at para. 21. The courts have long recognized that
such an assessment is not a precise accounting exercise and that adjustments
may be made for “the contingency that the future may differ from what the
evidence at trial indicates”: Krangle at para. 21; X. v. Y at
para. 267.

Discussion

[197]     I turn now
to a consideration of each of the items claimed.

[198]     I conclude
that an annual allowance for physical therapy treatments (including acupuncture
and some massage therapy) would be beneficial in providing Mr. Drodge with
some relief, particularly when he experiences aggravation of his headache
symptoms. Dr. Smart recommended these treatments. I accept Mr. Drodge’s
evidence that with the removal of any financial impediment he would access the
treatments from time to time. I find that an annual allowance of $500 per year
for seven years would be appropriate.

[199]     ICBC
concedes that it is reasonable to make some allowance for prescription
medication, as well as an allowance for episodic use of non-narcotic analgesics
and anti-inflammatories. I have considered in my assessment of this item that
Mr. Drodge would likely have required some medication for his low back
absent the accident.

[200]     Given his
pre-existing back condition I cannot conclude that Mr. Drodge should be
awarded the costs of the recommended sessions with a kinesiologist, gym pass,
and the cost for yard and household assistance. To make such an award would restore
him to a better position than he would have been in had the accident not
occurred.

[201]     Regarding
psychological treatments, Dr. Teal suggested some psychological treatment
would be warranted. I have concluded that an allowance for some psychological
counselling should be allowed. I have determined that an allowance for six
sessions per year for the next three years would be reasonable.

[202]     It is
uncontentious that there is no medical justification for the recommendation for
a four-wheel scooter and other adaptive aids referred to by Ms. Mulgrew in
her report.

[203]     The
evidence falls short of establishing either medical justification for, or the
reasonableness of, the occupational therapy services and personal development
courses recommended by Ms. Mulgrew to facilitate Mr. Drodge engaging
in more meaningful vocational activities.

[204]     Insofar as
travel costs for airfare between Kelowna and Vernon in order that
Mr. Drodge can visit his daughter, the evidence does not establish if
there is any increased cost to travelling by air as opposed to driving.

[205]     Having
considered the costs set out in Ms. Mulgrew’s report, and the costs of the
future care multipliers in Mr. Young’s report, I assess an award for the
cost of future care in the amount of $10,500. This is based on an assessment of
the present value of the costs of care to be incurred in the future period.

Special Damages

[206]    
ICBC has agreed to Mr. Drodge’s special damages claim in the amount
of $2,908.20. However, ICBC disputes Mr. Drodge’s claim for $900 for the cost
he incurred after the accident for a painter to paint his house.

[207]     It is well
established on the authorities that an injured person is entitled to recover
the reasonable out-of-pocket expenses they incurred as a result of an accident.
This is grounded in the fundamental governing principle that an injured person
is to be restored to the position he or she would have been in had the accident
not occurred: Milina at 78.

[208]     However,
this compensatory principle mandates that expense claims be limited to those
which are restorative as distinct from those which would put the plaintiff in a
better position than before the accident: Cooper-Stephenson, Personal Injury
Damages In Canada, 2d ed (Toronto: Thomson Canada, 1996) at 134. Moreover,
remoteness may limit the recovery of damages: Cooper-Stephenson at 134; X.
v. Y at para. 282.

[209]     Based on
these principles, I am not persuaded that the defendants should be liable for
the cost of painting Mr. Drodge’s home, which was not occasioned for any
rehabilitative purpose.

[210]     In the
result, Mr. Drodge is entitled to an award for special damages in the amount of
$2,908.20.

Conclusion and Summary

[211]     Mr. Drodge’s
damages are assessed at $312,908.20 consisting of the following:

COSTS

[212]      If the
parties are unable to agree on costs, plaintiff’s counsel is at liberty to file
a written submission within 60 days from the date of this judgment. Counsel for
the defence is to file written submissions in response within 45 days of
receipt of Mr. Drodge’s submissions. Any reply submissions must be filed
within 15 days.

“Dardi J.”