IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120124

Docket: M091132

Registry:
Vancouver

Between:

Thomas Robert
Milburn

Plaintiff

And

Patrick Ernst

Defendant

Before:
The Honourable Madam Justice Fitzpatrick

Reasons for Judgment

Introduction

[1]            
On a rainy Vancouver night in March 2007, the plaintiff Thomas Milburn,
while stopped at a traffic light on his motorcycle, was struck from behind by a
motor vehicle driven by the defendant, Patrick Ernst.

[2]            
Liability for the accident is admitted by the defence. Accordingly, the
only issue for determination is an assessment of the damages suffered by Mr.
Milburn arising from the accident.

[3]            
Broadly speaking, Mr. Milburn maintains that he suffered permanent soft
tissue injuries to his back that have resulted in ongoing or chronic back and
neck pain which has and will, in the future, impair his ability to work and
enjoy life. The defence submits that, for the most part, Mr. Milburn has fully
recovered from his injuries and that minimal damages are appropriate.

Facts

Before the Accident

[4]            
Mr. Milburn was 35 years-old at the time of the accident.

[5]            
Mr. Milburn completed his high school education in Manitoba and
completed three years of study in theatre and film at the University of
Manitoba. He has worked in the food and beverage industry for approximately 20
years. At the time of the accident, he had been employed as a server and
supervisor for three years at the Rugby Club Grill and was then earning $8 per
hour plus tips.

[6]            
Before the accident, in addition to having a physically active
employment situation, Mr. Milburn enjoyed various recreational activities.
His activities included snowboarding, rollerblading, working out at the gym and
mixed martial arts. He is also an avid motorcyclist.

[7]            
At the time of the accident, Mr. Milburn was unmarried.

[8]            
Prior to the accident, Mr. Milburn did not have any medical issues
relating to his neck or back. Nevertheless, in January 2007,
Mr. Milburn suffered a knee injury, being a tear to his ACL, while playing
soccer. As a result, he was expecting to have surgery to repair that in
June 2007.

[9]            
Mr. Milburn is also a character actor who has had acting roles from
time to time, as will be discussed in more detail below.

The Accident

[10]        
The accident occurred in the late evening of March 15, 2007, while Mr. Milburn
was on his way home from his shift at the Rugby Club Grill.

[11]        
Mr. Milburn was on his motorcycle proceeding westbound on Broadway
Avenue at Oak Street in Vancouver. He came to a complete stop at the red light.
Like many winter evenings in the Lower Mainland, it was raining.

[12]        
At the same time, Mr. Ernst was also proceeding westbound on
Broadway and approaching Oak Street. Unfortunately, the windshield wipers on
Mr. Ernst’s 1996 Crown Victoria were not operating properly and as a result, he
was having trouble seeing through the windshield. As Mr. Ernst approached
the intersection at the speed of approximately 30-40 kilometres/hour, he slowed
for the red light. When the light turned green, he began to accelerate and at
that time, collided with Mr. Milburn on his motorcycle. Mr. Ernst
indicated in his evidence that he did not notice Mr. Milburn until just
milliseconds before impact.

[13]        
The car pushed the motorcycle some eight or nine feet through the
crosswalk and into the intersection before Mr. Ernst stopped.

[14]        
Despite the relatively slow speed of Mr. Ernst’s vehicle and the
fact that Mr. Milburn was stopped at the light, the consequences of the
impact to the motorcycle were severe. In fact, the impact resulted in the
motorcycle becoming imbedded in the grill of the Crown Victoria; to the point
that only half of the motorcycle could be seen protruding from the front of the
car. The front wheel of the car was suspended off the ground given that
Mr. Milburn’s motorcycle was then jammed to some extent underneath the
car. The tow truck driver required approximately 30 minutes to separate the
motorcycle from the grill of the car given the extent to which the vehicles had
become conjoined. The motorcycle was a total write off.

[15]        
Despite the consequences of the crash to his motorcycle,
Mr. Milburn was very fortunate in terms of the impact to him.
Mr. Milburn did not strike the ground, did not suffer any impact to his
head or helmet and he did not lose consciousness. He suffered no contusions or
broken bones in the accident.

[16]        
Nevertheless, Mr. Milburn was affected by the crash. Upon impact, his
torso was arched backward or hyper extended from his neck down to his waist. In
addition, the impact drove the metal handlebar at the back of the seat of the
motorcycle (known as the “sissy bar”) into his back and pelvis.
Mr. Milburn was thrown onto the hood of the Crown Victoria upon impact and
once it came to a stop, Mr. Milburn was then thrown back down onto the
seat of his motorcycle with his wrists being jammed onto the handlebars. He
was, however, able to get off his motorcycle without assistance.

[17]        
After the accident, an independent witness, Andrew Ferguson observed
Mr. Milburn walking around holding his neck and lower back, as
Mr. Milburn apparently attempted to walk off the results of the accident.

[18]        
Shortly thereafter, the general manager of the Rugby Club Grill attended
at the accident scene. After giving a statement to the police, Mr. Milburn
returned to the restaurant with the general manager and waited at the
restaurant for his girlfriend. When his girlfriend arrived, both of them then
walked to Vancouver General Hospital. He was given medical attention at the
hospital where the medical personnel observed that he had a visible lump and
bruise on his pelvic girdle, presumably arising from the sissy bar.
Mr. Milburn reported back pain at that time and he was prescribed
medication for that pain.

After the Accident

[19]        
 Mr. Milburn reported significant pain immediately after the
accident.

[20]        
The next day, Mr. Milburn indicated that he was a little stiff and
still had a major bruise. Nevertheless, later in the day, while grocery
shopping, Mr. Milburn reported that he had quite an onset of tightness in
his neck and back. This required him to return home immediately, where he
attempted to treat his symptoms with a hot bath, heating pads and massage.

[21]        
He took two days off from his job at the Rugby Club Grill.

[22]        
Notwithstanding the accident, Mr. Milburn was not in any position
to take more time off from his employment at the Rugby Club Grill. At that
time, he was living from paycheque to paycheque and had no savings. He knew
that as a result of his upcoming knee surgery on June 14, 2007, he would
be required to take approximately three months off from his job. It was
therefore his intention, and frankly need, to work as much as he could in the
few months prior to the accident so as to accumulate sufficient savings to support
himself during his recuperation from the knee surgery.

[23]        
That meant that he could not afford to take much, if any, time off from
his job as a server at the Rugby Club Grill to recover from the accident. After
his two days off, he returned to that employment. He describes this as a very
high paced and physical work environment. His duties involved lots of heavy
lifting (such as plates), reaching and moving of other objects (such as
tables). Despite his return to work, he described his activities at work as
being very painful and uncomfortable. In many instances, he was required to
assist in various chores, such as moving tables around.

[24]        
In order to increase his savings, Mr. Milburn took the ICBC
settlement from the written off bike and did not replace it. In addition, he
sold a car and deposited the sale proceeds into a bank account.

[25]        
In June 2007, Mr. Milburn underwent knee surgery. While he was
recovering from that surgery, Mr. Milburn attended physiotherapy for both
his knee and the injuries arising from the motor vehicle accident.

[26]        
In September 2007, Mr. Milburn returned to work although he
changed places of employment. He began employment as a bartender and supervisor
at 72 Sports Bar. That employment only lasted for approximately four months,
until the restaurant closed its doors in January 2008. While employed at this
bar, which entailed about 40 hours per week, Mr. Milburn had time to exercise
and strengthen his core. He also had other people to assist in the more
physical aspects of the job.

[27]        
In February 2008, Mr. Milburn obtained a job with the Donnelly
Group, an organization that operates various pubs and restaurants in Vancouver.
In particular, he was hired as the manager of one of their operations, the
Library Square Pub. This job was quite demanding in many ways and involved
significantly more responsibility than that of his former positions. As
manager, Mr. Milburn was required to oversee the operations of the pub
from a management and operational point of view. This included typical office
duties such as dealing with clients, suppliers, staff and completing paperwork.
The job was also physically demanding. From time to time, Mr. Milburn
assisted with moving kegs of beer, stocking beer fridges and other physical
activities associated with the operations of a sports bar.

[28]        
The job at the Library Square Pub was not a “9 to 5” job.
Mr. Milburn indicates that he was putting in 80-90 hours per week at the
bar.  Even after he physically left the premises, he was continually dealing
with matters relating to the pub at home, or by phone or email via his
blackberry.

[29]        
Unlike 72 Sports Bar, while Mr. Milburn was employed at Library Square
Pub, he did not have time to exercise and strengthen his core, nor did he have
as many opportunities to ask other people to assist him in the more physical
aspects of the job. Mr. Milburn’s evidence was to the effect that
throughout the course of his employment at Library Square Pub, he continued to
suffer lower back pain and also pain in his upper left shoulder. He described
the lower back pain as always present, but sometimes it would flare up and be
extremely painful depending upon what activities he was undertaking. Mr.
Milburn’s evidence regarding his discomfort and at times, inability to complete
physical jobs at Library Square Pub was confirmed by the evidence of Domitrius
Fassas and Steven Stiller, both of whom also worked there. Mr. Fassas observed
Mr. Milburn doing some stretching on the premises when his back was bothering
him and also observed times when he had to ask for help in physical tasks. Mr.
Stiller also testified that Mr. Milburn had to obtain assistance in some of the
more physically demanding aspects of the job.

[30]        
While at Library Square Pub, Mr. Milburn was earning approximately
$45,000 per year and about $1,000 in tips each month, plus benefits. In
addition, he would work occasionally as a bartender to earn extra money and he
would share in the tips while working in that position.

[31]        
As a result of the extremely long hours, and the corresponding lack of
time to address his physical issues (such as through physiotherapy, workouts at
the gym, and the like), Mr. Milburn began to put on weight. Mr. Milburn
testified that eventually he came to the conclusion that he had to choose
between his health and his position at the Library Square Pub. He gave evidence
to the effect that, by reason of the pain that he described as constant, he
became a very miserable person which he felt was going to affect his ability to
do his job.

[32]        
Accordingly, he quit his position at the Library Square Pub on
December 31, 2009, after one year and ten months in that position.

[33]        
In January 2010, Mr. Milburn obtained a position as a bartender at
Preston Lounge. This position was not anywhere near as physically demanding or
time-consuming as that of the Library Square Pub and Mr. Milburn again
began exercising and improving his overall physical condition. Nevertheless,
the position at Preston Lounge was not particularly remunerative. He was making
$12 per hour plus tips while working 40 hours per week. He did not consider
that he could financially survive while earning this wage.

[34]        
In October 2010, Mr. Milburn obtained another management position
at the Town Hall/Saltlick Restaurant which paid $28,000 per year and tips of
approximately $250 to $500 per week. This position also afforded him medical
and dental benefits and three weeks’ vacation. In other words, this was more
money than at Preston Lounge, but less than at the Library Square Pub.
Nevertheless, Mr. Milburn considered that this position still allowed him
to have a life outside of work and he was confident that the employer knew his
physical limitations in terms of the job requirements. Unfortunately, Town
Hall/Saltlick closed some four months later in February 2011.

[35]        
In March 2011, Mr. Milburn returned to the Donnelly Group
although in a different position than his former employment at Library Square
Pub. Mr. Milburn made it clear when he was offered a job by the Donnelly
Group that he could not return to the type of physically demanding job that he
had taken at Library Square Pub. He indicated that the Donnelly Group was fully
aware of his conditions and limitations and that he made it clear to them that
he has no desire to work as hard as he had at Library Square Pub. In fact, it
appears that the Donnelly Group had, by that time, recognized that the previous
job description at Library Square Pub was punishing and that they had lost
people as a result of the extreme demands of that job.

[36]        
Arising from these discussions, Mr. Milburn was offered a job as a
general manager of The Calling Public House, which was a smaller venue than
Library Square Pub. He started that job on March 1, 2011 earning $43,600 per
year and tips of $250 every two weeks with medical and dental benefits.

[37]        
Despite Mr. Milburn’s intentions to manage his workload at his place of
employment, it appears that his employment at The Calling has resulted in
Mr. Milburn going back to working fairly extensive hours. The need to work
these long hours arose because of special events in the Vancouver area, such as
Pride Week and the Celebration of Light. As a result, Mr. Milburn has been
putting in longer hours which he says has resulted in his back pain flaring
up.  He remained employed at The Calling at the time of the trial.

[38]        
From an employment point of view, Mr. Milburn has indicated that
eventually he would like to own his own pub and/or restaurant although he
recognizes that if that dream was ever realized, it would likely result in him
working longer hours.

[39]        
The accident has affected Mr. Milburn’s recreational activities,
although the extent to which that has occurred was very much a point of
controversy at the trial. As indicated above, prior to the accident, Mr.
Milburn was a very active person, involved in snowboarding, rollerblading,
mixed martial arts, jogging, soccer and volleyball.

[40]        
Yet, the evidence of Mr. Milburn was to the effect that despite the
accident, he still continued to enjoy many recreational activities he used to
enjoy (with the exception of mixed martial arts, snowboarding and
rollerblading), including weightlifting, swimming, ATVing, scuba diving and
horseback riding. There was some issue at trial concerning whether or not Mr.
Milburn had returned to mixed martial arts. Mr. Milburn denied this and his
evidence was supported by his friend, Mr. Stiller. I accept the evidence of Mr.
Milburn on this point.

[41]        
Mr. Milburn is particularly passionate about motorcycles. Sometime
shortly after the accident, Mr. Milburn was able to return to riding
motorcycles. He borrowed a friend’s motorcycle just before his knee surgery in
June 2007.

[42]        
Mr. Milburn also owns a motorcycle at this time and he takes various
road trips on his motorcycle including to such places as Whistler, the Okanagan
and Washington State. Nevertheless, Mr. Milburn indicates that while on
these longer road trips, his back begins to cramp up from time to time and
needs to be stretched. Accordingly, he is required to make numerous stops along
the way to address any physical discomfort he might be feeling.

[43]        
Mr. Milburn’s motorcycle enthusiasm is evident from his
participation in an internet motorcycle travel series called “The Good Ride”
which is intended to appeal to like minded motorcycle enthusiasts.
Mr. Milburn had developed this idea prior to the accident and has recently
renewed his intent to develop the series. His motorcycle experiences are well
documented on the websites developed for that series.

[44]        
With respect to his acting career, Mr. Milburn has indicated that
the acting roles he formerly sought and obtained to some extent are no longer
available to him. Prior to the accident, he would typically play the role of a
police officer or solider and the roles would usually be physically demanding.
In fact, he would typically offer to do his own stunts which would improve his
chances of obtaining a role since it would save the movie producer the cost of
paying another actor to do the stunts.

[45]        
As a result of the accident, Mr. Milburn did not feel that he could
meet the physical demands of doing the stunt work, and as a result, that has
put him in a worse position in terms of obtaining work. This evidence from
Mr. Milburn was confirmed by his agent, Mary Falcon, who has represented
Mr. Milburn during the two years preceding the trial.

[46]        
Mr. Milburn’s acting career can only be described as hopeful at best.
Mr. Milburn’s acting résumé on the IMDb website indicates that he has only
had three roles between 2003 and 2007 and that there were no roles in the year
before the accident. No evidence was presented from either Mr. Milburn or
Ms. Falcon that any roles would have been available to him but for the
accident, either in a general sense or for stunt man purposes only. Like many
actors, he does not do it for the money – since his income from acting
over the years has fluctuated greatly. Presently and for some time now, his
income per year has been nominal ($150 for last year) based on residual amounts
from past roles.

[47]        
After the accident, Mr. Milburn was also involved in an independent
film in 2008 entitled “Wrong Place, Wrong Time”. This film was being produced
by his friend Mr. Stiller and Mr. Milburn was happy to assist his friend
by acting in the film. The videotape of a portion of the film was shown at
trial. The scene portrayed Mr. Milburn as being tied to a chair and then
violently punched and beaten up. Mr. Milburn testified, and his testimony
was confirmed by Mr. Stiller, that the scene on the video was staged in the
sense that what was seen as a violent and physical encounter on film was
actually strictly coordinated so as to lessen the physical involvement of
Mr. Milburn and make it appear that he was more physically involved than
he actually was. I accept as a fact that what is indicated on the video is not
in fact what occurred from a physical point of view in respect of
Mr. Milburn.

[48]        
Mr. Milburn indicated in his evidence that he has plans for the
future that will be affected by his ongoing injury arising from the motor vehicle
accident.

[49]        
At the time of the trial, Mr. Milburn was engaged to be married in
the fall of 2011. He was residing with his fiancé in a one bedroom apartment.
In terms of his domestic life, he has indicated that he has difficulty doing
some daily chores such as standing at the sink and doing dishes. He has also
recently attempted to mow a lawn which resulted in him having significant back
pain. Although he does not currently reside in a home that has a lawn, it is
his and his fiancé’s intention to start a family and move to a larger
residence. Like many young families, their dream is to have children and that
dream may in turn result in him having a home and yard that requires him to
participate in their upkeep.

[50]        
Mr. Milburn does not currently have any immediate family members
living in the Vancouver area who would be able to assist with any physical
chores around the household.

[51]        
The current aids used by Mr. Milburn around his household to
alleviate his pain include hot baths, heating pads, and massaging items.

The Expert Evidence

[52]        
In support of his position, Mr. Milburn called two medical doctors,
Dr. Behroozi and Dr. Badii. Mr. Milburn also introduced expert
evidence of an economist Gerald Taunton and an occupational therapist, Carlene
Brady.

[53]        
In reply, the defence called Dr. Kendall.

The Medical Evidence

[54]        
The medical evidence is somewhat conflicting.

[55]        
Dr. Behroozi is a general practitioner and has treated
Mr. Milburn since November 2001. Dr. Behroozi confirms that
Mr. Milburn was in good health prior to the accident, but for his knee
injury.

[56]        
After the accident, Dr. Behroozi saw Mr. Milburn on
March 20, 2007. Dr. Behroozi found that the accident resulted in
hyperextension of his neck and back and bruising of his pelvic area.
Mr. Milburn reported that he had stiffness in his neck. Dr. Behroozi
confirms that he saw Mr. Milburn approximately every two weeks from
March 2007 until August 2007, during which time he continued to have
symptoms including neck pain, headaches, neck stiffness, lower back and
thoracic pain and interrupted sleep. Physiotherapy was recommended and
Dr. Behroozi suggested that an exercise or rehabilitation program be
undertaken. By November 2007, Dr. Behroozi continued to record symptoms
for Mr. Milburn in his upper back, chest, left scapular region and lower
back. Dr. Behroozi again recommended an exercise program and prescribed
intermittent anti-inflammatories.

[57]        
Mr. Milburn was seen on three occasions in 2008 and
Dr. Behroozi again recorded symptoms of upper back discomfort and left
para-scapular discomfort. Mr. Milburn wished to commence kickboxing, but
he was advised against that. The defence says that this is evidence that Mr.
Milburn was feeling better by this time.

[58]        
There were three visits in 2009 and reported symptoms were mostly in the
thoracic region. In July 2009, an MRI was obtained which revealed some
disc bulging at multiple levels on the thoracic spine.

[59]        
In his report of September 9, 2009, Dr. Behroozi concluded
that Mr. Milburn had suffered the following injuries from the motor vehicle
accident:

1.       Soft
tissue injury to his neck, thoracic spine, lumbar spine and pelvic region;

2.       Intermittent
cognitive dysfunction immediately after the accident;

3.       Sleep
disturbance; and

4.       Probable,
multiple disc protrusions in both the thoracic and lumbar spines. Although he
considered it impossible to be certain that these were caused by the accident,
Dr. Behroozi nevertheless concluded on a “balance of probabilities” that
these disc bulges were caused by the accident.

[60]        
Dr. Behroozi’s prognosis, in light of Mr. Milburn’s report of
significant discomfort during work and curtailment of his recreational
activities, was that he would have to be careful when lifting so as not to
injure his back and push the discs out further. He also recommended a core strengthening
program at that time.

[61]        
Dr. Behroozi’s second report of March 9, 2010 followed four
further visits by Mr. Milburn in late 2009 and early 2010. During those
visits, Mr. Milburn continued to report symptoms in his upper and lower
back and that they were exacerbated by his long hours of work at the Library
Square Pub until the end of 2009. Mr. Milburn reported to
Dr. Behroozi that his new employment at Preston Lounge in early 2010 had
resulted in his back pain becoming less severe. He also reported that he still
had symptoms in his upper and lower back most of the time, with exacerbations
intermittently. During these more recent visits with Dr. Behroozi,
Mr. Milburn reported that he was undertaking core exercises at home,
including doing some light weightlifting and swimming. He was also running.

[62]        
Again, Dr. Behroozi concluded that Mr. Milburn had suffered
soft tissue injuries to his neck, thoracic spine, lumbar spine and pelvic
region. He also concluded that he suffered intermittent cognitive dysfunction
after the accident. Accordingly, he concluded that Mr. Milburn’s current
situation was one of gradually diminishing thoracic and lumbar spine pain with
intermittent sleep disturbances. As before, Dr. Behroozi confirmed that
Mr. Milburn was to pay attention to his weight and exercise program and
that he should not strain his back by lifting excessive weights or turning
suddenly. Exercise was to be in a manner that would strengthen his core muscles
and could include swimming, a stationary bike, an elliptical machine and yoga.
Following his change of employment to Preston Lounge, Dr. Behroozi
reported that there was no doubt that the reduction in the number of hours that
he had been working had helped to improve his condition. Dr. Behroozi was
hopeful that Mr. Milburn would continue his gradual improvement and be
asymptomatic in due course.

[63]        
Dr. Behroozi was challenged on cross-examination principally in
terms of the credibility of reports from Mr. Milburn on his back pain symptoms
over the period in question versus Mr. Milburn’s current testimony regarding chronic
low back pain. It is apparent that Dr. Behroozi’s clinical notes do not
particularly identify lower back pain until the visit in
November 2007. Nevertheless, I note that the Form CL-19 completed by Dr. Behroozi
on November 20, 2007, clearly identifies lower back pain and documents Mr.
Milburn’s current subjective complaints at the date of the report. In addition,
on cross-examination, Dr. Behroozi indicated that when he noted just back
pain in his clinical notes, it was probably related to the thoracic or lumbar
spine and that his charts might not have been particularly specific about the
symptoms that were being reported by Mr. Milburn at that time.

[64]        
While Dr. Behroozi was challenged on the consistency (or perhaps
inconsistency) of his clinical records regarding the constancy of the back
pain, the significance of any inconsistency must be considered from a practical
point of view. In Edmondson v. Payer, 2011 BCSC 118, Mr. Justice N.
Smith considered that clinical records are not meant to be a verbatim record of
everything that is stated between doctor and patient. Accordingly, the records
must be considered in light of the medical evidence. N. Smith, J.
observed:

[32]      That observation applies with even greater force to
statements in clinical records, which are usually not, and are not intended to
be, a verbatim record of everything that was said.  They are usually a brief
summary or paraphrase, reflecting the information that the doctor considered
most pertinent to the medical advice or treatment being sought on that day.
There is no record of the questions that elicited the recorded statements.

[33]      When statements of a party are relied on for the
truth of their content, the authors of Sopinka, Lederman & Bryant, The
Law of Evidence in Canada, 3d ed. (Markham, ON: LexisNexis Canada, 2009)
point out at paragraph 6.398 that one rationale for the admissibility of such
statements is that “it is always open to the party to take the witness box and
testify either that he or she never made that admission or to qualify it in
some other way.”  The authors also emphasize at paragraph 6.413, that the whole
of a statement must be put into evidence:

Thus, if an admission contains
statements both adverse and favourable to a party and if an opponent tenders
it, he or she may thereby be adducing evidence both helpful and damaging to his
or her cause.

[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.

[36]      While the content of a
clinical record may be evidence for some purposes, the absence of a record is
not, in itself, evidence of anything.  For example, the absence of reference to
a symptom in a doctor’s notes of a particular visit cannot be the sole basis
for any inference about the existence or non-existence of that symptom.  At
most, it indicates only that it was not the focus of discussion on that
occasion.

[65]        
As recommended by Dr. Behroozi, Mr. Milburn attended
physiotherapy sessions throughout all of 2007 although some of those sessions
related to his recovery from the knee surgery.

[66]        
In particular, at his treatment on September 5, 2007, subjective
complaints from Mr. Milburn included soreness throughout the sternum and a
“popping” and locking of his lower back. He reported that the upper back pain
had gone presently but that the lower back hurts when the upper back flares up.
Objective testing of Mr. Milburn at that time indicated that his lumbar
spine range of motion was almost full and pain free except extension, which was
limited by 50% due to left sided pain. Complaints of back pain persisted
throughout his numerous visits with the physiotherapist in 2007. After that,
Mr. Milburn only attended a few further physiotherapy sessions. He
attended in November 2008 when he reported that he had constant pain in his
back or lower-mid back. He also attended in October 2009 where he obtained
treatment for back pain and he later reported during his visit in November 2009
that he felt better after the session the previous month.

[67]        
Since 2009, Mr. Milburn attended the physiotherapist only
periodically. He attended in November 2010 when he again reported lumbar
spine pain. Further visits to the physiotherapist took place in 2011. In April,
he reported upper thoracic pain. Two visits just shortly before the commencement
of the trial took place in July. At both those visits, Mr. Milburn again
reported continuing pain. During the April and July 2011 visits,
Mr. Milburn underwent intramuscular stimulation (known as IMS), which he
found very painful. The results from the IMS treatments do not appear to have
alleviated the ongoing pain reported by Mr. Milburn.

[68]        
Dr. Badii was also called by Mr. Milburn. Dr. Badii is
licensed to practice internal medicine and rheumatology and he describes
himself as a specialist in rheumatology and spine medicine.

[69]        
Dr. Badii saw Mr. Milburn on two occasions: February 26,
2010 and approximately one month later, on March 27, 2010.

[70]        
During a physical examination of Mr. Milburn, Mr. Milburn
continued to report to Dr. Badii present symptoms of pain in the neck, upper
back, mid-back and lower back. Mr. Milburn stated that the lower back pain
was no longer constant and that the pain seemed to be aggravated by heavy
lifting and more strenuous activities. The worst pain was reported in the left
upper back. The neck pain was said to be intermittent. Similar to
Dr. Behroozi, Dr. Badii recommended analgesic and anti-inflammatory
medication with no prescribed medication required.

[71]        
In his first report dated March 19, 2010, Dr. Badii, similar to
Dr. Behroozi, concluded that the motor vehicle accident was directly
responsible for soft tissue injuries to Mr. Milburn’s neck and back which
have remained symptomatic until this time. Dealing with the neck and mechanics
of the injury, Dr. Badii concluded that this type of injury – where
Mr. Milburn was not sitting in a car but on a motorcycle where his back
was not protected – likely resulted in a hyperextension of his neck and
back and that this injury is consistent with major soft tissue injuries causing
prolonged symptoms.

[72]        
Dr. Badii disagreed with Dr. Behroozi’s conclusions with
respect to the disc bulges. Dr. Badii concluded that these were not caused
by the accident; rather, they were likely mild, long standing degenerative
changes consistent with the normal aging process in an adult person. However, Dr. Badii
concluded that these asymptomatic changes were rendered symptomatic as a result
of the accident in March 2007.

[73]        
Dr. Badii also concluded that the anterior chest pain that
Mr. Milburn reported in August 2007 (which was the subject of an examination
of Mr. Milburn by Dr. Verdejo in September 2007) was likely as a result of his
use of crutches after the knee surgery, which, in conjunction with the soft
tissue injuries to the neck and back, exacerbated that area.

[74]        
Dr. Badii confirmed that Mr. Milburn had reported that his
injuries have negatively affected his ability to enjoy recreational activities.
Dr. Badii reported that Mr. Milburn told him that he had to cut back
on snowboarding, running and martial arts training (the latter of which I have
found to be a mistake on Dr. Badii’s part since I have found that Mr. Milburn
did not return to his martial arts activities after the accident). He has also
had to cut back on the lifting of heavy weights.

[75]        
By way of a prognosis, Dr. Badii indicated that it was “guarded”.
He concluded that if a patient with soft tissue injuries to the neck and back
did not experience any positive change for over two years, there is less than a
5% probability of further improvement. Accordingly, Dr. Badii concluded
that if there was to be any improvement, it would arise from a focused active
rehabilitation program. Even so, he suspected that Mr. Milburn would
continue to have some neck and back pain that would continue for years to come.

[76]        
Further treatment recommendations by Dr. Badii included obtaining a
bone scan, soft tissue trigger point injections, acupuncture, IMS and deep
tissue massage. He also indicated that Mr. Milburn may have to supplement
this with regular analgesics and anti-inflammatory pain medications. As with
Dr. Behroozi, he recommended an anti-inflammatory pain medication and
recommended core strengthening and stabilizing exercises. He was of the view
that, without a major improvement within the next twelve months, there was only
a small possibility of further improvement.

[77]        
Dr. Badii’s follow up report of March 27, 2010 confirmed his prior
diagnosis, treatment recommendations and prognosis. He concluded that, even
with optimal treatment, it was unlikely that Mr. Milburn would ever return
completely to pre-accident levels.

[78]        
In cross-examination, Dr. Badii confirmed his diagnosis and
prognosis in that he considered that Mr. Milburn continued to be in pain
arising from his injuries. All of the recommendations that he made were to
improve Mr. Milburn’s level of function so that the pain could be managed
and alleviated to some extent. His recommendations were not, as he said, to
cure Mr. Milburn’s pain.

[79]        
The final medical report dated March 19, 2010 was prepared by
Dr. Kendall, an orthopaedic surgeon who was retained by the defence to
conduct an independent medical examination of Mr. Milburn around that time.
Unlike his reports to Drs. Behroozi and Badii, Mr. Milburn
reported to Dr. Kendall that he was never pain free and that the pain,
while diminishing occasionally when he increases his strength, may also
occasionally flare up with respect to certain activities. He reported to Dr.
Kendall that he has low-grade upper back pain which flares up with progressive
activities. He described his lower back pain to Dr. Kendall as “mild to
debilitating”.

[80]        
Dr. Kendall reported that Mr. Milburn indicated subjective
indications of pain in the cervical spine, upper thoracic spine and lumbar
spine. He was unable to find any objective findings in support of this
subjective indication by Mr. Milburn.

[81]        
On cross-examination, Dr. Kendall confirmed that Mr. Milburn’s
reports of pain were subjective, in that, with respect to soft tissue injuries,
Mr. Milburn would be the one who would know what level of pain he was experiencing
and what activities might be exacerbating that pain. Dr. Kendall agreed that
soft tissue injuries can be painful and possibly disabling.

[82]        
Dr. Verdejo was also called to testify but not as an expert. His
testimony simply confirmed that he had seen Mr. Milburn on one occasion in
September 2007 regarding some chest pain. I accept that this examination was
only focussed on that complaint (which was later explained by Dr. Badii, as
above) and did not relate to any back pain being experienced by Mr. Milburn. As
such, his evidence did not address the major issue in contention, that of the
back pain alleged by Mr. Milburn.

[83]        
During the trial, the matter of the injury to Mr. Milburn’s wrist arose.
This was initially reported by Mr. Milburn as having occurred as a result of
him landing on the handlebars of the motorbike. Dr. Behroozi reported on this
in March 2007 and described Mr. Milburn as having “discomfort” as a result. Dr.
Badii also noted that Mr. Milburn had mentioned pain in his wrist but that it
had improved. He understood that it had gone away some time ago. Dr. Kendall
also tested Mr. Milburn’s wrist and found some tenderness but a full range of motion.
No further report of this wrist injury was made by Mr. Milburn and none of the
medical reports address this as an ongoing injury. During his testimony, Mr.
Milburn simply said that he reported it but nothing had been done about it. He
said that he could only write for a few minutes as a result. On
cross-examination, he confirmed that at his examination for discovery held in
May 2010, he was not able to recall when he had any general wrist pain.

Conclusions re Injuries

[84]        
There is no dispute between the parties that Mr. Milburn suffered some
injuries arising from the accident. For example, it is clear that he was
bruised in the pelvic region, he had wrist pain and that he had some cognitive
dysfunction and sleep disturbance. The medical evidence supports that all of
these were resolved shortly after the accident. He also had some chest pain in
the fall of 2007 arising from his temporary use of crutches after the knee
surgery.

[85]        
The major point in contention relates to Mr. Milburn’s evidence and
contention at trial that he now has chronic or constant pain in his neck, lower
back and thoracic spine which continues to plague him to this day and the
further contention that this pain will likely continue into the future.

[86]        
The defence says that Mr. Milburn’s evidence is contradictory,
principally considering what he has reported to Drs. Behroozi, Badii and
Kendall who all met with and examined Mr. Milburn around the same time in March
2010. Mr. Milburn told Dr. Behroozi that he had pain in his upper and lower
back most of the time, with exacerbations intermittently. He told Dr. Badii
that he had lower back pain that was no longer constant, pain in his buttocks
that was intermittent, left upper back pain that was fairly constant and neck
pain that was intermittent. Finally, he told Dr. Kendall that he had constant low
grade pain in his upper back and mild to debilitating pain in his lower back.
The defence says that there is no way to reconcile Mr. Milburn’s own evidence
with these different reports over such a short time period, let alone reconcile
it with his current evidence.

[87]        
The defence also points out that in Mr. Milburn’s list of documents, he
listed two privileged medical-legal reports dated June 11 and 12, 2010. These
were commissioned by Mr. Milburn’s counsel but were never served or presented
at trial. The defence submits that an adverse inference should be drawn that
the evidence in those reports would be contrary to Mr. Milburn’s case. Cases
cited in support include Buksh v. Miles, 2008 BCCA 318 at paras. 30-35,
296 D.L.R. (4th) 608; Bronson v. Hewitt, 2010 BCSC 169 at
paras. 323-337, 58 E.T.R. (3d) 14; Bouchard v. Brown Bros. Motor Lease
Canada Ltd., 2011 BCSC 762 at paras. 118-122. In Buksh, at
para. 31, the court cites from Barker v. McQuahe (1964), 49 W.W.R.
685 (B.C.C.A.) at 689, that in a personal injury claim, the plaintiff “ought to
call all doctors who attended him in respect of any important aspect of the
matters that are in dispute, or explain why he does not do so.”

[88]        
In my view, this is not an appropriate case to conclude that an adverse
inference should be drawn. There is no evidence that the authors of those
reports even saw Mr. Milburn. If so, Mr. Milburn could have been examined on
the point and copies of clinical notes obtained, such as was done in Bouchard
(see also para. 35 of Buksh). Mr. Milburn’s counsel has advised
that this evidence was not submitted because it was of no assistance to the
court, not that it was adverse to the current medical evidence. In fact, there
may have been any number of reasons why the reports were not submitted and
while it is possible that they contradicted the reports of Drs. Behroozi and
Badii either in whole or in part, it is equally possible that they did not
materially add to those reports. As was noted by the court in Bronson at
para. 329, an adverse inference can only be drawn if such testimony would
be superior in respect of the facts to be proved.

[89]        
Counsel for Mr. Milburn is entitled to prepare his case, and obtain
whatever expert reports that might assist in advancing his case. To suggest
that any decision not to use an unidentified expert report leads to an adverse
inference in respect of any case is going well beyond the general proposition
relating to adverse inferences. The disclosure process is intended to provide
opposing counsel with the means of testing the claim of privilege, not to allow
such claims to be made that an adverse inference should be drawn in these
circumstances.

[90]        
Turning to the medical reports in evidence here, I find that the reports
of Mr. Milburn to Drs. Behroozi and Badii are largely consistent, keeping in
mind the limitations in doctors’ summaries of reports by patients to them,
similar to what applies to clinical records: see Edmondson as cited
above. I accept the evidence of Dr. Badii concerning the conclusion that the
disc bulges were not caused by the accident but were rendered symptomatic as a
result of it.

[91]        
Although the report of Dr. Kendall dealt mostly with the severity of the
pain, not the frequency with which it occurred, it is, however, apparent that
the description of the constancy of the pain was more greatly emphasized by Mr.
Milburn for Dr. Kendall as opposed to the other doctors.

[92]        
As with most soft tissue injuries, and as acknowledged by the doctors
giving evidence at this trial, the degree of pain arising from these types of
injuries is largely subjective. To that extent, the matter of Mr. Milburn’s
credibility is a key factor in assessing the severity of his injuries.

[93]        
The correct approach to assessing injuries which depend on subjective
reports of pain was discussed in Price v. Kostryba (1982), 70 B.C.L.R.
397 at 399 (S.C.) by McEachern C.J.  In referring to an earlier decision, he
said:

In Butler v. Blaylock, [[1981] B.C.J. No. 31,] decided
7th October 1981, Vancouver No. B781505, …. I referred to counsel’s argument
that a defendant is often at the mercy of a plaintiff in actions for damages
for personal injuries because complaints of pain cannot easily be disproved. I
then said:

I am not stating any new principle
when I say that the court should be exceedingly careful when there is little or
no objective evidence of continuing injury and when complaints of pain persist
for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer. But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence – which could be just his own evidence if the surrounding
circumstances are consistent – that his complaints of pain are true reflections
of a continuing injury.

[94]        
The factors to be considered when assessing credibility were summarized
by Madam Justice Dillon in Bradshaw v. Stenner, 2010 BCSC 1398, as
follows:

[186]    Credibility involves an
assessment of the trustworthiness of a witness’ testimony based upon the
veracity or sincerity of a witness and the accuracy of the evidence that the
witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452,
50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of
his memory, the ability to resist the influence of interest to modify his
recollection, whether the witness’ evidence harmonizes with independent
evidence that has been accepted, whether the witness changes his testimony
during direct and cross-examination, whether the witness’ testimony seems
unreasonable, impossible, or unlikely, whether a witness has a motive to lie,
and the demeanour of a witness generally (Wallace v. Davis, [1926] 31
O.W.N. 202 (Ont. H.C.); Farnya v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.)
[Faryna]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128
(S.C.C.)). Ultimately, the validity of the evidence depends on whether the
evidence is consistent with the probabilities affecting the case as a whole and
shown to be in existence at the time (Farnya at para. 356).

[95]        
For obvious reasons, I have approached the evidence of Mr. Milburn with
caution. Nevertheless, I note that his symptoms are largely consistent with the
type of injuries that can be expected to arise from this type of accident, as
confirmed by the evidence of Drs. Behroozi and Badii. In addition, independent
witnesses, such as Mr. Fassas and Mr. Stiller, confirmed that Mr. Milburn
struggled from time to time at his job at Library Square Pub. Generally
speaking, I have found Mr. Milburn to be a credible witness although I have
concluded that he was exaggerating his current symptoms somewhat to Dr. Kendall
and during the giving of his evidence at the trial.

[96]        
After having considered the evidence from Mr. Milburn, the evidence
of his independent witnesses and the medical evidence referred to above, I find
as a fact that Mr. Milburn suffered the following injuries as a result of the
accident:

a)       he
was bruised in the pelvic region, he had wrist pain and he had some cognitive
dysfunction and sleep disturbance, all of which were resolved shortly after the
accident;

b)       he
had some chest pain in the fall of 2007 arising from his temporary use of
crutches after the knee surgery;

c)       he
had severe pain in his neck, back and shoulder, all of which were largely
resolved by December 2007;

d)       the
disc bulges found to be present in Mr. Milburn’s spine were not caused by the
accident but were rendered symptomatic as a result of the accident; and

e)       he
continues to experience discomfort and mild pain in his neck and back from time
to time, which increases to the point of severity depending on his level of
physical activity and his level of physical fitness.

Damages Analysis

[97]        
Mr. Milburn seeks damages under the following headings:

Non-pecuniary damages

[98]        
Non-pecuniary damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life and loss of amenities. The compensation
awarded should be fair to all parties, and fairness is measured against awards
made in comparable cases. Such cases, though helpful, serve
only as a rough guide. Each case depends on its own unique facts: MacKenzie
v. Rogalasky, 2011 BCSC 54, at para. 247; Trites v. Penner,
2010 BCSC 882, at paras. 188-189.

[99]        
In Trites, Madam Justice Ker recently summarized the factors that
are to be considered in assessing non-pecuniary damages:

[190]    The relevant factors in assessing
non-pecuniary damages were reviewed by Mr. Justice Voith in Lakhani v.
Elliott, 2009 BCSC 1058 at para. 104, citing the majority opinion of the
Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34 (see also Kuskis at
para. 138):

The inexhaustive list of common
factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that
influence an award of non-pecuniary damages includes:

a.         age of
the plaintiff;

b.         nature
of the injury;

c.         severity
and duration of pain;

d.         disability;

e.         emotional
suffering; and

f.          loss
or impairment of life.

I would add the following factors,
although they may arguably be subsumed in the above list

g.         impairment
of family, marital and social relationships;

h.         impairment
of physical and mental abilities;

i.          loss
of lifestyle; and

j.          the plaintiffs stoicism (as a
factor that should not, generally speaking, penalize the plaintiff: Giang v.
Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54).

[100]     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, 250 D.L.R. (4th) 83.

[101]     Mr. Milburn
submits that the accident has changed him and the way he enjoys life forever.
Further, he submits that while he has returned to his life and continued to
work, he will continue to deal with pain in the future. He claims the sum of
$100,000 for pain and suffering.

[102]     Mr.
Milburn cites three cases which he says support that a range of $75,000 to
$100,000 is appropriate in similar circumstances. He says that his
circumstances support an award at the higher end of the range.  He relies on
the following cases:

a) MacKenzie:
the plaintiff was an energetic, hardworking chef prior to the accident. After
the accident, the plaintiff continued in his employment with some difficulties
but ultimately had to quit after two years. The court reviewed the enduring
nature of the injuries which prohibited him from his chosen profession, his
ongoing chronic pain and diminishment of lifestyle. The court awarded $100,000;

b) Grigor
v. Johal, 2008 BCSC 1823: the plaintiff returned to part time work shortly
after the accident and then full time some four months after the accident out
of financial necessity. He could no longer work overtime hours. His lower back
was injured and his chronic back pain worsened during the day. His injuries
also lessened the quality and enjoyment of his recreational and family life.
The court awarded $90,000;

c) Trites:
the plaintiff, an apprentice plumber, suffered soft tissue injuries to his neck
and back in an accident. He returned to his training shortly thereafter and to
plumbing work some four months later, but not without ongoing pain that
required prescription painkillers. He was not able to continue to enjoy the
various recreational and social activities that he enjoyed before the accident.
The court awarded $75,000.

[103]     The
defence submits that Mr. Milburn has suffered nothing more than some mild
soft tissue injuries and that if he has any residual ongoing symptoms, they
have not affected his employment or enjoyment of life to any great degree. The
defence suggests an award between $20,000 and $30,000 would be appropriate.

[104]     The
defence relies on the following cases:

a) Golam
v. Fortier, 2005 BCSC 598: the plaintiff suffered mild to moderate soft
tissue injury. He continued his employment in a restaurant. Two years after the
injury, he continued to suffer pain and discomfort although it was largely
resolved. The pain was expected to resolve. The court awarded $25,000;

b) Myers
v. Leng, 2006 BCSC 1582: the plaintiff suffered a strain of his neck and
upper back. He was unable to work for six weeks. He continued to feel pain in
his neck and back from time to time, which pain was increased with more
physical work. The court awarded $25,000;

c) Rattenbury
v. Samra, 2009 BCSC 207: the plaintiff had chronic back pain that was mild
in nature. This nagging back pain did not prevent him from returning to his
sporting activities or from working full time. The court awarded $30,000;

d) Chamberlin
(Litigation Guardian of) v. Profeit, 2010 BCSC 1598: the plaintiff suffered
a whiplash injury and at trial was still suffering pain in her neck and
shoulders. She had returned to her recreational activities. She failed to prove
that her current pain was as a result of the accident. The court awarded
$27,500;

e) Hunter
v. Yuan, 2010 BCSC 1526: the plaintiff had soft tissue injuries to her
shoulders, upper back and neck. The pain was not chronic and continuous but
increased with different levels of exertion. Her recovery had reached a
plateau. The court awarded $35,000.

[105]     I accept the
evidence of Mr. Milburn that he enjoyed an active and physical life before the
accident. In the aftermath of the accident, he experienced significant pain and
discomfort relating to his injuries at that time which, for the most part, were
resolved by December 2007.

[106]     Since the
accident, he has struggled to deal with the back and neck pain that arises from
time to time, particularly given his employment, which is physically demanding
and at times, can be quite physically demanding. He has not, however, required
prescription medicine to deal with that, which speaks to the severity of the
pain that he experiences from time to time. In addition, his doctors have
recommended that with a proper exercise regime and with care taken in the
manner of lifting and other physical activities, he should be able to minimize
the difficulties that he might otherwise have. This recommendation appears to
have been taken up by Mr. Milburn in that he is now regularly exercising on his
own.

[107]     His need
of physiotherapy for some years now has been infrequent, a sign that the need
for more formal treatment has not been great, despite what he describes as
“flare-ups” in his condition.

[108]     Based on
the medical evidence of Dr. Badii, which I accept, his condition is not
expected to materially improve from this time forward and as such, it is to be
expected that Mr. Milburn will continue to suffer some pain in the future.

[109]     In
addition, I find that the accident has resulted in Mr. Milburn abandoning some
of his recreational activities, such as kickboxing, snowboarding and
rollerblading. In addition, some of his favourite activities have been
curtailed. His love and enjoyment of motorcycling is now somewhat limited to
the extent that he has to stop frequently while on long rides. In addition,
acting roles with stunt assignments are no longer open to him, an activity that
he particularly enjoyed although such roles were limited.

[110]     I accept
that the accident has also affected his personal life in that he has some pain
accomplishing more physically demanding tasks around the home. I note, however,
that he continues to enjoy what can only be called very physical activities,
and no doubt more enjoyable activities, such as weightlifting, ATVing, scuba
diving, snorkeling and horseback riding.

[111]     I find
that Mr. Milburn is entitled to non-pecuniary damages in the amount of
$50,000.

Past wage loss

[112]     The
objective in assessing an award for loss of income and earning capacity is to
restore the plaintiff to the position that they would have been in if not for
the injuries caused by the defendant: Lines v. W & D Logging Co. Ltd.,
2009 BCCA 106 at para. 185, 306 D.L.R. (4th) 1; Falati v. Smith,
2010 BCSC 465 at para. 38.

[113]     Claims for
past loss of income are often characterized as a separate head of damages.
However, it is properly characterized as a component of loss of earning
capacity. It is a claim for the loss of value of the work 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, 251 D.L.R. (4th)
290; Bradley v. Bath, 2010 BCCA 10 at paras. 31-32, 1 B.C.L.R.
(5th) 228; Falati at para. 39.

[114]     Mr. Milburn’s
wage loss claim has been calculated from January 2010 which is the
timeframe after he left his position as a manager at the Library Square Pub on
December 31, 2009. He does not seek any wage loss relating to his acting
positions.

[115]     Economic
evidence in support of past wage loss and loss of earning capacity (as
discussed below) was supported by a report from Mr. Taunton of PETA Consultants
Ltd. dated September 16, 2010. Mr. Taunton was asked to assume that
in the absence of the motor vehicle accident and subject to certain contingencies,
Mr. Milburn would have continued working full time as a restaurant/bar
manager or owner of a restaurant/bar through to retirement no later than age
65, with earnings slightly in excess of the average for British Columbia males
working in this occupation.

[116]     Mr. Taunton
used 2006 census documentation to determine the average full time, full year
earnings of B.C. males working as restaurant and food service managers. In
addition, Mr. Milburn was ascribed a 5.8% premium given that his
employment figure at the Library Square Pub of $45,310 for 2009 was that much
above the average. Accordingly, Mr. Taunton calculated without accident
earnings (including tips) which gave rise to a gross income loss figure. From
that figure is deducted actual income (from Preston Lounge, Town Hall/Saltlick
and The Calling) and savings in both income taxes and EI premiums.

[117]     By using
this formula, Mr. Taunton arrived at a figure of $17,150 for past wage
loss during 2010 and leading up to the trial. It is apparent that this figure
is essentially driven off the expected without accident earnings for 2010 of
$46,491 (versus the actual earnings of $29,229) and such earnings for the
partial year 2011 of $28,682 (versus the actual earnings of $22,982), which
again is based on the theory that he would have continued to be employed as a
restaurant/bar manager at the Library Square Pub to the date of trial.

[118]     The
defence disputes this head of damages on two bases.

[119]     Firstly,
the defence contends that the reason that Mr. Milburn left his position at
the Library Square Pub was not as a result of the accident, but rather was a
lifestyle choice.

[120]     It is true
that following the accident, Mr. Milburn continued to work full time (or
even exceeding full time hours) in physically demanding positions. He was able
to work at the Library Square Pub for approximately 22 months in a physically
active role. The demands of this job were, however, ever present. He was
expected to work very long hours and even when he was at home, he was expected
to be available to deal with ongoing issues at the bar.

[121]     The
defence points to Dr. Badii’s report of March 19, 2010, where
Mr. Milburn reported on his employment situation. The defence contends
that the report supports that he left the job for lifestyle reasons.
Nevertheless, a review of the report indicates exactly the opposite.
Mr. Milburn is said to have advised that with his symptoms he did not feel
that he could continue with that job. He indicated that he was spending a lot
of time finding out what he could do that was best for his body. He took the
less demanding job at Preston Lounge because he wanted to do what was “best for
his body and find out how he could help himself heal before going back and
working harder jobs”. In addition, he stated that it was easier for him to do
the work behind the bar because it gave him time to stretch and change
positions. As a general manager, he would have to stand or sit in one place for
extended periods of time which he found to be difficult.

[122]     This
report to Dr. Badii was confirmed in Dr. Behroozi’s second report of
March 2010, where Mr. Milburn reported that his employment at the
Library Square Pub was exacerbating his back pain significantly and that his
general condition was deteriorating. Finally, Dr. Behroozi was advised
that with his new employment at Preston Lounge, his back pain was less severe.

[123]     The
defence also argues that none of the doctors’ reports put into evidence in this
matter included any recommendation that Mr. Milburn should change his job
at Library Square Pub. Nevertheless, I do not find that that is a defining
factor on this issue. This was, as his counsel put it, Mr. Milburn’s “dream
job” to the extent that it provided him with management duties and a
significantly higher salary than his former positions. It makes sense to me
that he would try to make it work to the extent possible even in light of the
physical difficulties associated with the workload.

[124]     Mr. Milburn
clearly enjoyed and continues to enjoy other pursuits beyond his
employment – such as riding his motorcycle, exercising and acting. In this
context, I agree with the defence that the punishing hours at the Library
Square Pub would have ultimately been unsatisfactory to Mr. Milburn and caused
his departure from that job. Nevertheless, I am satisfied that the most
significant reason for him leaving the Library Square Pub in late 2009 was the
physical demands on him at that time.

[125]     The second
point made by the defence is that, in terms of calculating any income loss, it
is a flawed approach to use his income for 2009 which was anomalous in the
sense that it was much greater than any other level of reported income
Mr. Milburn had experienced in the years before the accident.

[126]     His
declared employment income in the years prior to 2007 is as follows:

[127]     The above
figures would not have included tips earned by Mr. Milburn which he did
not claim for tax purposes.

[128]     With
respect, I do not find these arguments by the defence to be persuasive. Mr. Milburn
did succeed in getting this “dream job” but in the end it was not as desirable
as it seemed. The punishing hours affected his health and I find would
ultimately not have been satisfactory to him in the long run given his keen
interest in other endeavours and activities. I also note that he returned to
management positions at Town Hall/Saltlick and The Calling, and at the latter,
he is making almost as much as what he was being paid at Library Square Pub. It
is not therefore correct to say that he has reverted back after this one
anomalous management position at Library Square Pub to that of a server or
bartender.

[129]     Despite
the arguments from the defence, I am satisfied that, at least with respect to
the time period up to the date of the trial, it has been established that
Mr. Milburn would have continued with his position as the manager of the
Library Square Pub and would have been earning the amounts indicated, as
referenced in Mr. Taunton’s report, which establish a total loss of
$17,150.

Loss of earning capacity

[130]    
In Reilly v. Lynn, 2003 BCCA 49, 178 B.C.A.C. 69, Mr. Justice
Low, writing for the majority, summarized the relevant principles to apply in
assessing damages for loss of future earning capacity:

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

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

[Emphasis
in original.]

[131]     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 defendant’s negligence: Lines at
para. 185. 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 v.
Insurance Corp. of British Columbia, 2011 BCCA 144 at para. 32,
303 B.C.A.C. 92.

[132]     There are
two possible approaches to assessment of loss of future earning capacity: the
“earnings approach” from Steenblok v. Funk, 46 B.C.L.R. (2d) 133, [1990]
5 W.W.R. 365 (C.A.) and the “capital asset approach” in Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353 (S.C.). Both approaches are correct and will be
more or less appropriate depending on whether the loss in question can be
quantified in a measureable way: Perren v. Lalari, 2010 BCCA 140, 317
D.L.R. (4th) 729.

[133]     The
earnings approach involves a form of math-oriented methodology such as (i) postulating
a minimum annual income loss for the plaintiff’s remaining years of work,
multiplying the annual projected loss by the number of remaining years and
calculating a present value; or (ii) awarding the plaintiff’s entire
annual income for a year or two: Steenblok; Gilbert v. Bottle,
2011 BCSC 1389 at para. 233.

[134]     The
capital asset approach involves considering factors such as (i) whether
the plaintiff has been rendered less capable overall of earning income from all
types of employment; (ii) is less marketable or attractive as a potential
employee; (iii) has lost the ability to take advantage of all job
opportunities that might otherwise have been open; and (iv) is less
valuable to herself as a person capable of earning income in a competitive
labour market: Brown at para. 8; Gilbert at para. 233.

[135]    
In Perren, Madam Justice Garson upheld the principles from Athey
v. Leonati, [1996] 3 S.C.R. 458:

[30]      Having reviewed all of these cases, I conclude that
none of them are inconsistent with the basic principles articulated in Athey
v. Leonati, [1996] 3 S.C.R. 458, and Andrews v. Grand & Toy Alberta
Ltd., [1978] 2 S.C.R. 229. These principles are:

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

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

[31]      Furthermore, I conclude that there is no conflict
between Steward and the earlier judgment in Pallos. As mentioned
earlier, Pallos is not authority for the proposition that mere
speculation of future loss of earning capacity is sufficient to justify an
award for damages for loss of future earning capacity.

[32]      A plaintiff must always prove, as was noted
by Donald J.A. in Steward, by Bauman J. in Chang, and by
Tysoe J.A. in Romanchych, that there is a real and substantial
possibility of a future event leading to an income loss. If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown. The former approach will be more useful when the loss is
more easily measurable, as it was in Steenblok. The latter approach will
be more useful when the loss is not as easily measurable, as in Pallos and
Romanchych. A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment. That was the case in both Pallos and Parypa.
But, as Donald J.A. said in Steward, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss.

[Emphasis
in original.]

[136]     To quantify
a loss of earning capacity, courts conduct assessments, based on the evidence,
rather than applying purely mathematical calculations: Rosvold v. Dunlop,
2001 BCCA 1 at para. 11, 147 B.C.A.C. 56; Kuskis v. Hon Tin,
2008 BCSC 862 at para. 153; Durand v. Bolt, 2007 BCSC 480 at
paras. 71-82.

[137]     For
assessment purposes, all relevant negative and positive contingencies must be
considered: Kuskis at paras. 154-155. In addition, the overall
fairness and reasonableness of the award must be taken into account: Rosvold
at para. 11.

[138]     Relevant
contingencies can include such things as the potential for improvements in
health, opportunities for advancement, decline in the economy and loss of
employment, as well as the usual chances and hazards of life: Djukic v. Hahn,
2006 BCSC 154 at para. 105; Kuskis at para. 155.

[139]     Other
cases are of little utility in respect of claims for pecuniary losses, which
require a “very fact-intensive, case-specific inquiry”: Gregory at
paras. 33-34.

[140]     The
defence submits that the evidence falls short of proving a substantial
possibility of a future event leading to an income loss. It says that Mr.
Milburn has been able to continue to perform his physically demanding work
duties, albeit with pain. Further, the defence says that this does not mean
that Mr. Milburn does not have the capacity to perform the work at all.

[141]     Nevertheless,
I consider that Mr. Milburn has met the onus of proving that there is a real
and substantial possibility of a future event leading to an income loss arising
from his injuries. Clearly, his injuries affected his ability to do his job at
Library Square Pub and as I have found, those injuries were the main reason for
his departure from that job. His injuries have had some negative effect on his
later jobs at Preston Lounge and The Calling, although to a lesser degree. To
the extent that he remains in the restaurant/bar industry, he can expect to
face the same challenges in the future in terms of meeting the physical demands
of those types of jobs. I find that his injuries will continue to negatively
affect his employment in the future, particularly as he ages. As Dr. Badii
concluded, his condition is not likely to get better in the future and
accordingly, there is a real and substantial possibility that his condition
will be negatively affected from time to time to the point of affecting his
income.

[142]     To address
the factors discussed in Brown, I find that Mr. Milburn has shown that
he has been rendered less capable overall from earning income from all types of
employment, that he is less marketable or attractive as a potential employee
and that he has lost the ability to take advantage of all job opportunities
that might otherwise have been open, all arising from his physical limitations
and his inability to fully participate in an industry sector which requires
that employees be physically very active on the job. Finally, I find that Mr.
Milburn is less valuable to himself as a person capable of earning income in a
competitive labour market.

[143]     In terms
of quantifying that loss of earning capacity, Mr. Milburn relies on the expert
report of Mr. Taunton in respect of the earnings approach to this assessment of
future wage loss. Mr. Taunton has constructed a table which calculates Mr.
Milburn’s anticipated earnings until age 65 assuming that he remained as a
restaurant/bar manager over that period of time. Factors relating to these calculations
included:

a)       Mr.
Milburn’s earnings were pegged from his 2009 income with Library Square Pub
with a 5.8% premium given that his income there exceeded the average for those
types of people;

b)       non-wage
benefits were included;

c)       negative
market or economic contingencies were calculated, relating to voluntary
non-participation in the labour force, unemployment, and choices relating to
working part time instead of full time or working only for part of the year,
together with actuarial survival contingencies;

d)       actuarial
survival contingencies were calculated, assuming that Mr. Milburn may die
before age 65; and

e)       present
values were applied.

In summary, Mr. Taunton calculated that the present
value of expected without accident income to retirement at age 65 would be
$679,121.

[144]     Mr.
Milburn submits that his estimated loss of income using this income approach
would be between $15,000 and $20,000 per year, although I was not
presented with any rationale for those figures. He further says that I should
only apply the actuarial multiplier because of his work ethic and stoicism in
the face of the physical difficulties he has faced in his jobs. The range of
calculations, based on the type of income loss and using the economic
multiplier (which includes the actuarial survival contingencies) at the low end
and only the actuarial multiplier at the high end, is $215,000 – $368,420.
The amount sought was $276,315, which equates to a $15,000 per year income loss
with only the actuarial multiplier applied.

[145]     Mr.
Milburn also submits in the alternative that I may consider the capital asset
approach and that considering the factors in Brown, an award of $125,000 –
$300,000 is appropriate. However, as was discussed in Perren, at
paras. 12 and 32, this approach is usually more appropriate where a
demonstrated pecuniary loss is not quantifiable in a measurable way.

[146]     In this
case, Mr. Milburn has been continuously employed during the four and a half
years after his accident. The Court therefore has concrete evidence about his
employability at least to this point in time and what effects the accident may
have had in respect of his earning capacity.

[147]     In terms
of quantification, I do not accept that the economic or market contingencies
should not apply, as submitted by Mr. Milburn’s counsel. While I appreciate
that Mr. Milburn is a hard worker and has remained stoic in the face of the
impact of his injuries on his job, he is no more immune to the exigencies of
the job market than anyone else is. It is obvious that the actuarial or
survival contingencies should also apply.

[148]     The real
crux of the matter lies in what yearly job loss will be suffered by Mr. Milburn
over his remaining working life. As is indicated in the cases, this is not a
mathematic calculation but rather an assessment of all the circumstances,
particularly those known at this time. There is no suggestion that Mr. Milburn
will pursue another line of work – rather, him staying in the industry is
consistent with his evidence and in particular, his statement that he would
like to run his own restaurant or bar in the future.

[149]     There are
a number of specific items to address in assessing the loss of earning
capacity. Firstly, I do not consider the 5.8% premium applied by Mr. Taunton to
be appropriate, particularly when the extreme demands of the job at Library
Square Pub were not likely to be maintained by most people, let alone Mr.
Milburn. While it may have been a “dream job” in terms of title and
remuneration, the workload associated with it certainly did not support that
description.

[150]     Secondly,
he did, for the reasons discussed above, quit his job there to take the lesser
job at Preston Lounge to recuperate and recover his health. That loss has
already been recognized in the past wage loss claim. There does remain the
possibility that this removal to a less physically stressful job may happen in
the future.

[151]     Thirdly, I
must recognize that the realization of loss of earning capacity will occur in
the future. It is apparent that Mr. Milburn has now obtained a position with
the same organization, the Donnelly Group, at The Calling at a salary of
$43,600 per year – which factoring out the 5.8% premium is very consistent
with his former salary at Library Square Pub. There is no suggestion that Mr.
Milburn cannot maintain that role at the present, although Mr. Milburn stated
that the physical demands are increasing given the special events noted above
and he has referred to flare-ups happening even now. However, the fact that no
loss is happening now does not detract from the possibility of loss in the
future, particularly under the capital asset approach as discussed in Brown.

[152]     In all of
the circumstances, and “looking into the crystal ball”, I have concluded that
the sum of $75,000 is an appropriate figure for Mr. Milburn’s future income
loss.

Cost of future care

[153]     Mr.
Milburn is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore him to his pre-accident condition insofar as
that is possible. When full restoration cannot be achieved, the court must
strive to assure full compensation through the provision of adequate future
care. The award is to be based on what is reasonably necessary on the medical
evidence to preserve and promote the plaintiff’s mental and physical health: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.); Williams (Guardian ad
litem of) v. Low, 2000 BCSC 345; Spehar (Guardian ad litem of) v.
Beazley, 2002 BCSC 1104.

[154]     The test
for determining the appropriate award under the heading of cost of future care
is an objective one based on medical evidence. For an award of future care: (1) there must be a medical justification for claims for cost
of future care; and (2) the claims must be reasonable: Milina at
84.

[155]     Future
care costs must be justified both because they are medically necessary and they
are likely to be incurred by the plaintiff. The award of damages is thus a
matter of prediction as to what will happen in the future. If a plaintiff has
not used a particular item or service in the past it may be inappropriate to
include its cost in a future care award: Izony v. Weidlich, 2006 BCSC
1315, at para. 74.

[156]     The
extent, if any, to which a future care costs award should be adjusted for
contingencies depends on the specific care needs of the plaintiff. In some
cases negative contingencies are offset by positive contingencies and,
therefore, a contingency adjustment is not required. In other cases, however,
the award is reduced based on the prospect of improvement in the plaintiff’s
condition or increased based on the prospect that additional care will be
required. Each case falls to be determined on its particular facts: Gilbert at
para. 253.

[157]     An
assessment of damages for cost of future care is not a precise accounting
exercise: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para. 21,
[2002] 1 S.C.R. 205.

[158]     Mr. Milburn
claims the sum of $60,883, together with the yearly sum of $8,540.50.  These
expenses can be summarized as follows:

[159]     Mr. Milburn
relies upon a report prepared by Carlene Brady of Turning Point Rehabilitation
Consulting Inc., dated May 12, 2011. Ms. Brady is a licensed occupational
therapist who was asked to prepare an opinion on the current and future needs
of Mr. Milburn in the areas of medical, rehabilitation and support
services, supplies and equipment subsequent to the injuries he suffered
following the motor vehicle accident.

[160]    
In particular, Ms. Brady points to the scope of her practice based
on the guidelines contained in the Health Professions Act, R.S.B.C.
1996, c. 183, and the Occupational Therapist Regulation, B.C. Reg.
286/2008 which provides in section 4 that an occupational therapist may assess
occupational performance. “Occupational performance” is defined in s. 1
as:

… the ability to choose,
organize and effectively and safely perform everyday activities necessary for
self-care and participation in educational, leisure, home management and work
activities.

[161]     The
admissibility of Ms. Brady’s report was a matter of controversy at the
trial. Notwithstanding Ms. Brady’s occupation and expertise as an
occupational therapist and not a medical doctor, Ms. Brady waded into the
medical arena in terms of stating opinions on certain emotional symptoms and
cognitive impairments and also recommending certain medical therapies, procedures
and medication, including cognitive behavior therapy and hand therapy. She was
clearly not qualified to do so.

[162]     After a voir
dire, I ruled that Ms. Brady’s report would be accepted on the basis
of the plaintiff having excised certain portions of the report relating to any
medical diagnosis and also treatment recommendations that would only be
acceptable from a qualified medical practitioner. Accordingly, Ms. Brady’s
report was to be considered only in respect of her opinions regarding future
care recommendations and the cost of those recommendations.

[163]     Ms. Brady,
in preparing her report, reviewed the medical reports of Drs. Behroozi,
Badii, Kendall, and Verdejo together with the clinical records of Dr. Behroozi.
She also reviewed clinical records and treatment plans from Mr. Milburn’s
physiotherapist, clinical records from the hospital, Pharmanet records and the
MRI report.

[164]     In
addition, Ms. Brady attended at Mr. Milburn’s apartment on
May 3, 2011 for approximately two hours to prepare a home occupational
therapy assessment and she had a further follow up conversation with Mr.
Milburn on May 12, 2011.

[165]     During her
visit, she observed Mr. Milburn performing certain household tasks and living
in his home. Mr. Milburn also completed certain questionnaires. In those
questionnaires, Mr. Milburn reported on a number of subjective factors –
that he was functioning at 75% of normal function in activities, roles and
relationships or that 25% of those were restricted. He also indicated “[n]one
of these activities is pain free. Some are worse than others but I am still
able to do them”. He confirmed that he had pain in his neck, left shoulder
blade area, upper, mid and lower back, left hip/upper leg and left wrist.

[166]     It is
apparent to me that Ms. Brady’s assessment came, for the most part, from the
subjective reports from Mr. Milburn on the extent of his injuries and the
effect on his lifestyle and her limited observation of him during their brief
meeting. She did not do any testing of Mr. Milburn. She indicated that she
relies on the reports from the patient being truthful.

[167]     One
particular troubling aspect is Mr. Milburn’s report of left wrist pain, an
injury which he suffered as a result of coming down on the handlebars of the
motorbike. Ms. Brady considered that this injury affected Mr. Milburn’s
driving, grooming, housework, household maintenance, yard care and gardening.
As a result of these complaints, Ms. Brady took it upon herself to recommend
that Mr. Milburn should undergo hand therapy, something that had not been
addressed, let alone recommended by any medical practitioner during the last
three years. What is more startling, however, is that the evidence supported
that this injury was resolved shortly after the accident, as I have noted and
found above. In Dr. Behroozi’s report of September 9, 2009, he notes that
immediately after the accident, Mr. Milburn reported that he had discomfort in
his left wrist. No complaints appear to have been made by Mr. Milburn after
that point concerning his wrist and he sought no medical treatment in respect
of any such ongoing difficulty in that respect. Why Mr. Milburn would be complaining
to Ms. Brady about such an injury some three years after it was resolved is
troubling.

[168]     The same
can be said for his then complaints about pain in his hip and upper leg. No
such injury was reported to the doctors.

[169]     In
addition, the general description in Ms. Brady’s report of Mr. Milburn’s subjective
complaints appears to be a more extensive description of his injuries beyond
what he was reporting to his own doctors and Dr. Kendall one year earlier. He
indicated or rated his average pain as 6/10 which I consider to be an elevated
rating again given the reports to his doctors given by him during earlier
visits.

[170]     Given all
of these circumstances, I have concluded that the reporting by Mr. Milburn to
Ms. Brady of the difficulties that he was experiencing and may experience in
the future in respect of various activities has been generally exaggerated and
is to be regarded with caution.

[171]     Arising
from her review and assessment, Ms. Brady concluded that
Mr. Milburn’s physical symptoms significantly limit his capacity for work
and adversely impact his overall activity tolerance, mood, sleep and quality of
life. For the most part, she found that Mr. Milburn had limited tolerance to
various activities by reason of back pain – such as lifting, carrying,
sitting, standing, walking, bed transfers, using public transportation,
driving, self care (such as grooming, toileting, dressing, showering, bathing),
meal preparation, housework, laundry, shopping, recreation and leisure,
household maintenance, yard care and gardening and childcare. She concluded
that he experiences chronic pain at his neck, upper, mid and lower back, left
wrist and left hip/upper leg and the reported difficulties with daily living
activities were consistent with his medical diagnoses and symptoms.

[172]     Based on
her review, Ms. Brady opined that Mr. Milburn will require
accommodations and equipment to continue employment in the restaurant industry.
She recommended a functional capacity evaluation in relation to his workplace that
would outline his physical capacity and restrictions and could be provided to
employers.

[173]     Finally,
she concluded that Mr. Milburn requires rehabilitation services to prevent
functional decline, maintain optimal health, and where possible, facilitate
occupational performance within his current physical capacity with regards to daily
living tasks, work, household management and recreation. She recommended
support services to assist with tasks outside of his physical capacity. As with
the doctors, Ms. Brady considered that participation in therapeutic
exercise would be required ongoing throughout his life to assist in managing
pain, maximizing function and minimizing the risk of injury. Lastly, Ms. Brady
concluded that when Mr. Milburn moves to a family home and has children
(as he indicated was his intention), he would require assistance with childcare
and household maintenance given his physical limitation (including yard care if
that applies).

[174]     The
entirety of Ms. Brady’s report was the subject of an objection by the
defence on the basis that the matters addressed in that report are entirely
speculative and not supported by the other evidence.

[175]     There is
authority to the effect that there must be medical justification for claims of
cost of future care and those claims must be reasonable and fair to both
parties. The Court must determine the services, medications and aids that are
reasonably necessary to promote the health of the plaintiff and assess the
likelihood he will use them in the future: see Bouchard at
paras 182-198.

[176]     I will
address each of the items outlined in Ms. Brady’s report and claimed by
Mr. Milburn in turn:

Medication and Supplies:  $318 per year

[177]     The
recommendation is for various medications, including over the counter pain
medication. A heating pad is also included every seven years.

[178]     It is
agreed that Ms. Brady is not qualified to prescribe medication.
Nevertheless, Dr. Behroozi’s report of September 9, 2009 does
acknowledge that Mr. Milburn was using anti-inflammatories and I believe
it is a reasonable prediction that those will be needed in the future in
certain situations to alleviate any pain that Mr. Milburn may be
suffering. There was no evidence as to what multiplier is appropriate in
respect of this yearly cost, given contingencies or present value. Nor was any
argument made on this point.

[179]     Doing the
best I can, allowing the heating pad and allowing for the contingency of a
reduction in the medications required and present values, I would allow this
claim at $1,000.

Therapeutic Modalities: $6,023 and $160 per year

(i)       Occupational Therapy

[180]     An
occupational therapy assessment was said to be necessary to assess, identify
and facilitate modifications under development of new leisure interests that
are within his capacity. Nevertheless, it is abundantly clear that
Mr. Milburn has essentially returned to his previous leisure interests
except for snowboarding, rollerblading and mixed martial arts. Given the
physical requirements relating to these activities, I do not consider it likely
that Mr. Milburn will ever return to them.

[181]     In these
circumstances, I do not therefore see that it is reasonable or fair that these
costs, which are projected to be a onetime cost of $1,703, be allowed.

(ii)      Physiotherapy

[182]     Ms. Brady
recommended further physiotherapy sessions based on the recommendation of Kerry
Maxwell, Mr. Milburn’s current physiotherapist, who was not called to give
evidence. She recommended physiotherapy sessions for eight to ten weeks
followed by sessions once per month for three years, for a total cost of $2,708.
In addition, she recommended assessments and six to eight sessions be completed
every three years to address new problems and update his therapeutic exercise
program to manage pain, maximize function and minimize risk of injury, for a
yearly cost of $160.

[183]     It is
apparent that Mr. Milburn has availed himself of physiotherapy sessions
since the date of his accident; however, from late 2008 to the date of the
trial, that therapy has been sporadic at best. Nevertheless, I accept that Mr.
Milburn will have some need for physiotherapy sessions in the future.

[184]     Mr. Milburn
did not indicate for how many years he claimed this amount. I allow this aspect
of the claim at $1,500.

(iii)      Kinesiology

[185]     Ms. Brady
recommended a kinesiologist to carry out a therapeutic exercise program and she
recommended a program three times per week for one month, two times per week
for one month and one time per week for four months and then to be continued
independently. The total cost is estimated at $540.

[186]     This
followed from Dr. Badii’s recommendation about participating in core
strengthening and stabilizing exercises. Nevertheless, Mr. Milburn’s
evidence was clear in that he was already undertaking an exercise program in
his home and as stated above, had essentially recovered to the point where he
was participating in most of his recreational activities. I do not therefore
consider that this onetime cost is appropriate.

(iv)     Massage Therapy

[187]     Ms. Brady
recommended massage therapy once per month for 12 months to address muscle
dysfunction and pain. This followed from Dr. Badii’s recommendation in his
March 19, 2010 report for acupuncture, IMS or deep tissue massage if
Mr. Milburn did not pursue more invasive procedures.

[188]     In my
view, this is an appropriate expense and the amount of $1,080 is allowed.

Support Services:  $46,800 and $7,433 per year

[189]     Ms. Brady’s
recommendations in this respect relate to homemaking, moving support, childcare
and yard or home maintenance. As will be discussed in more detail below, these
recommendations are based on speculation by Ms. Brady as to how
Mr. Milburn’s future personal life will unfold.

[190]     Ms. Brady
relies on census information as to when he might move, she relies on his
personal intention to have children in the future and finally, she relies on
his personal intention to at some point acquire a home that requires him to
complete home and yard maintenance. With respect to the yard and home
maintenance, she relies on statistical information as to how much time is
typically spent on those activities.

[191]     For the
most part, in my view, this rationale is entirely too speculative upon which to
rest any damage award. There is no medical evidence to support the proposition
that without support in relation to these activities, Mr. Milburn will not
be able to complete them. In fact, both Drs. Behroozi and Badii said that with
a proper exercise program, Mr. Milburn will be able to function provided he
avoids lifting excessive weights or turning suddenly. Mr. Milburn may also have
to address any ongoing pain with medication, which is addressed above.

[192]     I will
deal with those claims separately:

(i)       Homemaking ($2,600 per year)

[193]     Ms. Brady
has indicated in her opinion, Mr. Milburn requires assistance to complete
housekeeping tasks due to his physical impairments. She recommends two hours
per week of assistance at a cost per week of $50 for a total cost per year of
$2,600.

[194]     Mr.
Milburn gave evidence that he did have difficulty standing at the sink for too
long. Yet, it is apparent to me that Mr. Milburn to this point in time has
required no assistance in respect of his homemaking tasks following the four years
since the date of the accident. He did not give any evidence that he obtained
any such assistance during that time.

[195]     In
addition, there is no medical evidence to suggest that he is not able to
complete normal household tasks, including cooking and cleaning, as long as he
is careful to avoid lifting or turning in a manner that would exacerbate his
condition, such as recommended by Dr. Behroozi.

[196]     As noted
above, I do not accept the underlying subjective complaints of Mr. Milburn
about this activity, particularly as to the wrist pain which he says he now
experiences. It seems odd to me that Mr. Milburn can stand at work for extended
periods of time, do weightlifting and sit on a motorcycle or ATV for hours, all
with some stretching from time to time, yet cannot stand in front of a sink for
even 30 minutes. Ms. Brady herself said that people with back pain would find
sitting more challenging that standing.

[197]     In my
view, it has not been shown that these services are necessary, let alone
medically necessary. At the very least, they are completely speculative. They
are not allowed.

(ii)      Moving Support ($183 per year)

[198]     This
recommendation is based on Mr. Milburn moving every seven years, based on
census data, at a cost of $1,280, and that he will require assistance in
packing, unpacking and moving boxes.

[199]     This is
the type of activity that Drs. Behroozi and Badii specifically mentioned would
be one where Mr. Milburn would have to be careful given his back condition.
Presumably, his fiancée (now wife) could share in the workload to accomplish
any moves.

[200]     I would
allow this claim at $1,500.

(iii)      Child Care ($46,800)

[201]     This
recommendation is based on Mr. Milburn requiring assistance with childcare when
he has children due to his difficulty with lifting and activities requiring
awkward postures. Ms. Brady estimates eight hours of assistance per week for three
to six years at a cost of $25 per hour based on him having a partner and having
one to two children.

[202]     I do
consider that there is a possibility that Mr. Milburn will have children in the
future but beyond that, it is my view that any childcare costs, arising from
the accident, are entirely speculative. No medical evidence has been introduced
in support of this claim.

[203]     This claim
is not allowed.

(iv)     Yard Maintenance ($2,800 per year)

[204]     This
recommendation is based on Mr. Milburn moving to a residence with a yard and
needing to complete yard maintenance due to his difficulty with lifting and
activities requiring awkward postures. Ms. Brady estimates 56 hours per year of
assistance until age 80 at a cost of $50 per hour. Mr. Milburn anticipates that
he would have difficulty because of back pain and wrist pain. The same problem
with respect to his subjective complaints about wrist pain apply to this item.
He did recently mow his mother’s yard and did experience some aggravation of
his back pain.

[205]     I do
consider that there is a possibility that Mr. Milburn will have a yard in the
future but beyond that, it is my view that any yard tasks and any associated
costs, arising from the accident, are entirely speculative. No medical evidence
has been introduced in support of this claim.

[206]     This claim
is not allowed.

(v)      Home Maintenance ($1,850 per year)

[207]     This
recommendation is based on Mr. Milburn requiring assistance to complete home
maintenance due to his difficulty with lifting and activities requiring awkward
postures. Ms. Brady estimates 37 hours per year of assistance until age 80 at a
cost of $50 per hour. As with the yard maintenance, Mr. Milburn anticipates
that he would have difficulty because of back pain and wrist pain. The same
problem with respect to his subjective complaints about wrist pain apply to
this item. I was not advised that during the three and a half years since the
accident that Mr. Milburn had completed any home (or in his case, apartment) maintenance
projects or that he was unable to complete any.

[208]     It is my
view that any home maintenance tasks and their associated costs, to the extent
that Mr. Milburn is otherwise capable of and inclined to do them, but is unable
to now do them arising from the accident, are entirely speculative. No medical
evidence has been introduced in support of this claim.

[209]     This claim
is not allowed.

Health and Strength Management:  $6,665 and $350 per year

[210]     Ms. Brady
recommended an annual membership to a community gym to allow Mr. Milburn
to participate in a therapeutic exercise program. The estimated cost is $350
per year to age 65 and $245 per year from age 65 to age 85.

[211]     Dr. Behroozi
and Dr. Badii did recommend that Mr. Milburn maintain an exercise
program. Nevertheless, I heard no evidence from Mr. Milburn on the matter
of a gym membership and in fact, his evidence was to the effect that he was
completing an exercise program at his home, including lifting weights. He has
clearly not seen the need to join a gym to complete his exercise program, as
recommended by his doctors.

[212]     In the
circumstances, I do not view a gym membership as necessary.

[213]     Ms. Brady
also recommends a Pilates program to address core strength, as recommended by
Dr. Behroozi and Dr. Badii. The recommendation from Ms. Brady is
for five to six private sessions, followed by group sessions once per week for
three to five years, for a cost of $6,665. Again, Mr. Milburn appears to
be exercising on his own and did not indicate in his evidence that the program
that he was completing, based on the recommendations of his doctors, was not
sufficient or was not being followed without independent instruction.
Accordingly, I would not allow this item.

Rehabilitation Supplies:  $73.50 per year

[214]     Ms. Brady
recommends a number of supplies, including a long handled sponge for washing
his legs in the shower, a long handled shoe horn, a sock aid, a dressing stick
and an Obus-Forme type back support. These items have not been recommended by
any medical professional (save that Dr. Behroozi recommended a lumbar support),
nor did Mr. Milburn in his evidence indicate that he required or acquired
any of these aids to complete his daily tasks.

[215]     Accordingly,
these items are not allowed.

Vocational:  $1,395 and $206 per year

[216]     Ms. Brady
recommends a functional capacity evaluation at this time to determine physical
capacity and limitations with respect to job demands. The cost is $1,395.
Nevertheless, this has not been recommended by any medical professional. In
addition, Mr. Milburn appears to be quite cognizant of his physical
limitations at work given his “frank” discussion with the Donnelly Group before
he undertook the general manager position at The Calling. I do not therefore
see that this is a reasonable expense and it is not therefore allowed.

[217]     In
addition, Ms. Brady recommends an occupational therapy assessment, which
involves a worksite assessment and equipment recommendations for a yearly cost
of $131. Again, I do not see that this is required given that Mr. Milburn
is aware of his limitations and the Donnelly Group appears to be also quite
aware of them. Even if Mr. Milburn changes his job, in my view, he is quite
capable of outlining his limitations to any new employer just as he did with
the Donnelly Group.

[218]     Ms. Brady
finally recommends a high quality ergonomic chair to be used in the restaurant
office to increase sitting tolerance and managing pain. In my view, this is a
reasonable recommendation and will likely benefit Mr. Milburn to the
extent that he is performing management functions in the office. This expense is
in the amount of $650 to $850 every 10 years which equates to $75 every year.

[219]     I would
allow this expense in the amount of $850.

[220]     Accordingly,
I find that a fair award for the cost of future care is the sum of $5,930,
summarized as follows:

Special damages

[221]     Mr. Milburn
has given evidence of various expenses that he incurred in attempting to deal
with his symptoms.

[222]     His
out-of-pocket expenses include:

a)       physiotherapy
sessions: the cost was $55 per session and as stated above, these sessions
began immediately after the accident in March 2007 and continued to the
date of trial at a cost of $50 to $60 per session. While some of the time at
the sessions may have also related to his knee injury, I am satisfied that this
cost of $1,175 was an expense reasonably incurred by Mr. Milburn in
relation to the injuries from the accident and was as recommended by his
medical practitioners;

b)       travel
expenses: the cost was $18 for transit tickets to attend the physiotherapy,
which I also believe was reasonable in the circumstances so that he could
minimize his physical exertion in respect of attending those appointments; and

c)       MRI:
the two MRIs were conducted in July 2009 on the recommendation of
Dr. Behroozi. This total amount is $2,397.82, which includes the cost of
the scans and interest charges to August 2011. I also consider these expenses
as reasonable in these circumstances.

[223]     Accordingly,
special damages are allowed in the sum of $3,590.82.

Conclusion

[224]     I find
that Mr. Milburn is entitled to damages consisting of the following:

(a)      Non-pecuniary damages:
$50,000;

(b)      Past wage loss:  $17,150;

(c)      Diminishment of
earning capacity:  $75,000;

(d)      Cost of future care:  $5,930;

(e)      Special damages:  $3,590.82.

[225]     Mr.
Milburn is entitled to pre-judgment interest on the wage loss claim and special
damages. Mr. Milburn is also entitled to his costs, unless the parties seek to
make further submissions in that respect. If further submissions are to be
made, they must be filed within 30 days of the delivery of this judgment.

“The
Honourable Madam Justice S.C. Fitzpatrick”