IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120127

Docket: M085351

Registry:
Vancouver

Between:

Texas Rutter

Plaintiff

And

George William
Allen and

Jeremy Brian
Boileau

Defendants

Before:
The Honourable Mr. Justice Joyce

Reasons for Judgment

I.        INTRODUCTION

[1]            
Mr. Rutter sues for damages arising from a four-vehicle accident
that occurred on December 15, 2006. At approximately 11:45 a.m., Mr. Rutter
was returning to his home in Coquitlam from work in Langley. He was travelling westbound
on the Trans-Canada Highway on the Johnston Hill, approaching the Port Mann
Bridge. The traffic was quite heavy.

[2]            
The vehicle immediately ahead of Mr. Rutter, which was being driven
by a Mr. Beckley, came to a sudden stop when traffic ahead of him slowed
or came to a stop. There is an issue whether Mr. Rutter’s vehicle, came to
a stop or struck Mr. Beckley’s vehicle. The third vehicle, driven by the
defendant, Mr. Allen, struck the rear of Mr. Rutter’s vehicle and the
fourth vehicle, driven by the defendant, Mr. Boileau, struck the rear of Mr. Allen’s
vehicle.

[3]            
Mr. Rutter alleges that he suffered a number of injuries as a
result of the accident, including injury to his low back, hips, neck and left
wrist. He suffered headaches, loss of sleep and reduced concentration for a
time after the accident. Mr. Rutter says that most of the injuries
resolved fairly quickly, but that the injury to his back and wrist persisted
for a considerable period of time. Eventually, Mr. Rutter had an operation
on his wrist that was successful in resolving his complaints regarding his
wrist. He complains that his back pain persists.

[4]            
Mr. Rutter claims damages, including non-pecuniary damages, loss of
future earning capacity, cost of future care and special damages. His claim for
special damages includes a claim for extra costs incurred by him in connection
with the construction of a house in Houston, Texas, that Mr. Rutter was
building at the time of the accident.

[5]            
The defendants submit that the plaintiff’s injuries or some of them were
caused at least in part by Mr. Rutter’s contributory negligence in failing
to stop in time and colliding with the rear of Mr. Beckley’s vehicle. The
defendants also deny that Mr. Rutter’s back and wrist injuries were caused
by their negligence. They submit as well that Mr. Rutter had pre-existing
back problems. They dispute Mr. Rutter’s entitlement to any special costs
related to the construction of his house in Texas. The defendants also submit
that Mr. Rutter failed to mitigate his loss.

II.       ISSUES

[6]            
The following issues have to be determined in this action:

1.       Liability for the injury
and loss suffered by Mr. Rutter;

2.       Causation of injury to Mr. Rutter’s
wrist and low back;

3.       Quantum of the
non-pecuniary damages;

4.       Whether
Mr. Rutter is entitled to damages for loss of future earning capacity,
and, if so, the quantum of those damages;

5.       Whether
Mr. Rutter is entitled to damages for the cost of future medical care,
and, if so, the quantum of those damages;

6.       Whether
Mr. Rutter is entitled to special damages for any increased costs incurred
by him in the construction of the house in Texas; and

7.       Whether Mr. Rutter failed to
mitigate his loss, and, if so, the amount by which his damages should be
reduced.

III.       DISCUSSION AND FINDINGS OF FACT

1.       Circumstances of the accident

[7]            
Mr. Rutter’s evidence of the circumstances of the accident was as
follows. He was driving in his Chevy Blazer automobile heading home after
having been at work. He was wearing his lap and shoulder belt. He said the
traffic was quite heavy. He was picking up speed going down Johnston Hill towards
the Port Mann Bridge when he saw some police lights in the eastbound lanes. He
saw the brake lights on a small white car that was ahead of a large Ford F350
truck that was immediately ahead of him. The white car came to a stop, as did
the Ford F350. Mr. Rutter braked, geared down and came to a stop with the
front of his vehicle just touching the trailer hitch of the Ford F350, which he
thought stuck out about 14 inches from the bumper of the truck. Mr. Rutter
looked in his rear-view mirror and saw a pick-up truck coming towards him. The
pick-up truck struck the rear of the vehicle and pushed him into the Ford F350
causing the front of his vehicle to get caught up in the rear of the Ford F350.
He was then propelled forward again by another collision behind him.

[8]            
Mr. Rutter said that the estimate of the damage to his vehicle was
$18,000.00 and it was written off.

[9]            
Mr. Beckley, the driver of the Ford F350, testified as follows. He
was driving in the centre lane and had reached a speed of about 80 kilometres
per hour when he was forced to stop suddenly because traffic in front of him
came to a sudden stop. Mr. Beckley’s vehicle was then struck from behind.
He felt what he thought were two impacts from behind a matter of seconds apart.
He heard the sound of a third impact as he was moving to get out of his truck. Mr. Beckley
said the first impact moved his truck a bit and the second was just a bump that
did not move his truck forward. He did not feel a third impact.

[10]        
Mr. Beckley testified that the trailer hitch on the rear of his
truck stuck out about six inches from the bumper. He agreed that after the
collisions, Mr. Rutter’s vehicle was impaled on his.

[11]        
Neither Mr. Allen nor Mr. Boileau testified at trial, but the
plaintiff read in evidence from their examinations for discovery as part of his
case.

[12]        
Mr. Allen’s testimony on discovery was as follows. He was driving
his Toyota Tundra pick-up truck westbound on the Trans-Canada Highway,
approaching the Port Mann Bridge, when the vehicle in front of him came to an
abrupt stop. He said he was stopped for between 30 seconds and one minute
before his vehicle was struck by a Honda car behind him and pushed into the
Chevy Blazer.

[13]        
Mr. Boileau’s testimony on discovery was as follows. He was driving
a 1995 Honda Civic. The truck in front of him, which I understand to be the
Toyota Tundra, stopped suddenly. Mr. Boileau tried to stop but slid into
the back of the truck, with a single impact. He was going 50 to 60 kilometres
per hour before he applied his brakes. Mr. Boileau’s car was written off.

[14]        
The photographs taken of the four vehicles do not assist in determining
the mechanics of the collisions. They show the Chevy Blazer impaled onto the
back of the Ford F350, damage to the front and rear of the Toyota Tundra and
severe damage to the front of the Honda Civic.

[15]        
Whatever the exact sequence of collisions, I am satisfied that they all
occurred within a very short time span. Traffic was heavy and was moving at
between 60 and 80 kilometres per hour before the lead vehicle came to a very
sudden stop. It is unlikely that there were any lengthy gaps between the
vehicles before the drivers were forced to brake suddenly.

[16]        
There are three possible scenarios for the mechanics of the collisions that
may arise from this evidence. The first scenario would involve the Chevy Blazer
coming to a stop just touching the trailer hitch of the Ford F350, without any
significant impact; followed by the Toyota Tundra striking the back of the
Chevy Blazer and driving it into the Ford F350 at significant force to impale
it on the trailer hitch (impact #1); followed by the Honda Civic striking the
rear of the Toyota Tundra, which in turn struck for a second time the Chevy
Blazer, which by that time was stuck to the Ford F350 (impact #2). This
scenario involves only two impacts of any significance upon the Ford F350,
which accords with Mr. Beckley’s recollection. It also accords with his
recollection that the first impact he felt was greater than the second impact.
It does not, however, explain the third impact that Mr. Beckley said he
heard but did not feel.

[17]        
The second scenario would involve the Chevy Blazer striking the rear of
the Ford F350 with enough force to impale it onto the trailer hitch of the Ford
F350 (impact #1); followed by the Toyota Tundra striking the rear of the Chevy
Blazer, causing it to strike the Ford F350 a second time (impact #2); followed
by the Honda Civic striking the Toyota Tundra without the Toyota Tundra transferring
any significant energy to the Ford F350. This scenario accords with Mr. Beckley
hearing three impacts but feeling only two impacts. However, in my view,
considering the extent of the damage to the front of the Honda Civic and the
rear of the Toyota Tundra and the likely proximity of the four vehicles to one
another, it is unlikely that the impact of the Honda Civic with the Toyota
Tundra did not transfer energy to the Chevy Blazer and Ford F350, which, by
that time, would have been stuck together.

[18]        
The third scenario would involve the Chevy Blazer striking the rear of
the Ford F350 with sufficient force to impale it on the trailer hitch (impact
#1); followed by the Toyota Tundra coming to a stop without striking the Chevy
Blazer; followed by the Honda Civic striking the rear of the Toyota Tundra and
driving it into to the Chevy Blazer, which was stuck to the Ford F350 (impact
#2). This scenario also accords with Mr. Beckley’s evidence that he felt
two impacts, the first of which was greater than the second. However, it
depends on a finding that the Toyota Tundra came to a stop without striking the
Chevy Blazer. No one testified to that effect at trial and such a finding is
contrary to the evidence of Mr. Rutter, who was in the best position to
observe, feel and hear a collision between the Toyota Tundra and his vehicle.

[19]        
I find, on the balance of probabilities that the first scenario I
described is what, in fact happened. In my view, it is likely that Mr. Beckley’s
recollection of feeling two impacts is accurate, but that he is mistaken in
thinking that he heard a third impact that he did not feel as he was getting
out of his truck.

[20]        
I am satisfied that the impacts to Mr. Rutter’s vehicle were caused
by the negligence of both Mr. Allen and Mr. Boileau. Mr. Rutter
was able to come to a stop when traffic slowed suddenly in front of him. Mr. Allen
and Mr. Boileau were not able to stop because they were travelling too
close to the vehicles directly ahead of them given their speed to permit them
to stop safely in an emergency situation or failed to stop because they were
not paying proper attention.

[21]        
It is also my view that the impact to Mr. Rutter’s vehicle caused
by Mr. Allen and the impact caused by Mr. Boileau both caused the injuries
suffered by Mr. Rutter as a result of the collisions. They are concurrent,
several tortfeasors and are jointly and severally liable for the loss and
damage caused by their negligence.

2.       Nature of Mr. Rutter’s Injuries and
Causation

[22]        
Mr. Rutter declined an invitation from the emergency personnel who
attended the scene of the accident to go to the hospital. He first sought
medical treatment on December 18, 2006, from Dr. Jacobs, his family
doctor. Since then, Mr. Rutter has seen Dr. Jacobs and other medical
practitioners for a number of complaints that he attributes to the accident. Dr. Jacobs
prepared two medical-legal reports that were tendered in evidence, one dated
November 5, 2009 and the other dated March 8, 2011. I will discuss Mr. Rutter’s
complaints below.

(a)                Headaches

[23]        
Mr. Rutter testified that he developed a headache soon after the
collision. He complained of headaches when he saw Dr. Jacobs on December
18, 2006, but reported to him on January 16, 2007, that the headaches had
decreased. On March 7, 2007, Mr. Rutter reported to Dr. Jacobs that
he no longer had headaches.

(b)                Neck pain

[24]        
Mr. Rutter testified that he had a sore neck, but that it resolved
within about three weeks. This is corroborated by his reporting to Dr. Jacobs
on January 16, 2007, that he no longer had neck pain.

(c)                Injury to right knee

[25]        
Mr. Rutter testified that for quite a long period of time he had a
sore right knee when he bent down. He noticed it most when he was in the shower
and bent down to clean the shower with a “squeegee”. He said that the knee pain
has subsided within the last year.

(d)                Injury to left wrist

[26]        
Mr. Rutter alleges that he sustained an injury to his wrist as a
result of the accident, specifically an “ulnar carpal impaction with a tear of
the triangular fibrocartilage”. In January 2010, Dr. Perey, an orthopaedic
surgeon, operated on Mr. Rutter’s wrist to shorten the ulnar bone, which largely
resolved the problem with the wrist, although Mr. Rutter testified that he
still had occasional sharp pains in his wrist.

[27]        
The plaintiff did not provide any expert opinion evidence from Dr. Perey.

[28]        
The defendants submit that Mr. Rutter’s wrist problem is unrelated
to the accident. They point to the fact that there is no mention in Dr. Jacobs’
clinical records of any complaint with regard to the wrist until June 15, 2009,
nearly two and one-half years after the accident. Mr. Rutter saw Dr. Jacobs
on 22 occasions during that time span for matters concerned with the accident.
The defendants also refer to the fact that Mr. Rutter could not recall
mentioning any problem with his wrist to the physiotherapist when he attended
for physiotherapy for his back on 18 occasions between January 2007 and April
2007, and three times in August and September 2007.

[29]        
Not surprisingly, when he testified at trial, Dr. Jacobs had no
independent recollection of the office visits. He testified that he tries to
make a note of all subjective complaints and believes that if he saw any
bruising he would have made note of it. However, he also said that sometimes it
is difficult to make note of every complaint and that he focuses on the most
significant complaint.

[30]        
In his medical legal report, Dr. Jacobs expressed the opinion that Mr. Rutter
suffered the tear of the triangular fibrocartilage in his left wrist as a
result of the accident, but conceded that his opinion is based solely on Mr. Rutter’s
self-report. He testified that this sort of injury is usually caused by some
sort of compression or impact or sudden force. Jacobs testified that he would
expect pain to develop soon after the trauma. He said that it would be very
unlikely that the tear to the cartilage would remain dormant for two years
before becoming painful, although it is possible that there could be soreness
soon after the trauma, then subsidence of pain for a time and reoccurrence of pain
as a result of some event.

[31]        
Mr. Rutter testified that he felt pain in his left wrist
immediately after the accident. He said that he mentioned it to Dr. Jacobs
on December 18, 2006, and on other occasions in 2007. He said that the pain in
his wrist got worse and worse from the time of the accident until he had the
operation.

[32]        
On January 22, 2007, Mr. Rutter gave a statement to an adjuster
with the Insurance Corporation of British Columbia (“ICBC”), in which he
described his injuries. In that statement he said:

My left hand must have hit
something because my baby finger and ring finger were badly bruised for about 5
days and were stiff and sore. They are fine now.

[33]        
Mr. Rutter said that bruising to his hand had gone away by the time
he gave the statement to the ICBC adjuster.

[34]        
Mr. Rutter’s wife testified that she saw bruising to her husband’s
left hand or fingers within a few days of the accident. She also testified that
she accompanied her husband on many occasions when he went to see his doctor
and confirmed that he told Dr. Jacobs about the problem with his wrist.

[35]        
Mr. Rutter testified, in particular, that on the weekend of April
28-29, 2007, he was helping his wife with some yard work and experienced pain
in his wrist. He testified that on July 24, 2007, there was a discussion with Dr. Jacobs,
when his wife was present, about the wrist. He also testified that on January
15, 2008, when he was doing back exercises that were prescribed by his
physiotherapist, he found that the exercises put pressure on his wrist and made
it sore. He testified that on May 30, 2008, while playing in a golf tournament
he felt unbearable pain. He said it felt like it was broken.

[36]        
The plaintiff tendered a report from Dr. le Nobel, a specialist in
physical medicine and rehabilitation. Dr. le Nobel expressed the opinion
that the accident is the cause of the wrist injury, assuming Mr. Rutter
suffered pain and bruising of his left wrist within a few days of the accident.
In his report he elaborated, saying:

Tex Rutter’s account of his left
hand being on the steering wheel at the time of impact and of left wrist
bruising and swelling within days of the motor vehicle collision, is consistent
with the December 15, 2006 motor vehicle collision being a factor in terms of
his left wrist condition.

[37]        
Dr. le Nobel agreed that the fact that Mr. Rutter was an avid
golfer and, at least before the accident, played 100 rounds or so of golf per
year, could be a potential cause of the wrist problem.

[38]        
In cross-examination, Dr. le Nobel agreed that if Mr. Rutter
had not experienced any pain in his wrist during the two years after the
accident, that fact would certainly affect his opinion with regard to the cause
of the wrist injury.

[39]        
I accept the evidence of Mr. Rutter that his left hand sustained
some sort of impact trauma as a result of the accident. I accept his evidence
that his left pinkie and ring finger were sore and bruised for a time after the
accident. I think it is also probable that the initial pain subsided after
several days and that Mr. Rutter was being honest when he told the
insurance adjuster on January 22, 2007, that his hand was fine. I also accept Mr. Rutter’s
evidence that he experienced wrist pain on occasion in 2007 and 2008, when he
put pressure on his wrist through certain activities, such as yard work,
exercise and golfing, although I am not satisfied that it was a constant,
debilitating pain.

[40]        
In my view, there is a body of evidence, which I accept that supports
the opinions of the medical experts. The evidence as a whole supports a
finding, on balance, that the accident was the underlying cause of the problem
and that but for this accident, Mr. Rutter would not have developed the
wrist problem that was eventually corrected by surgery. The defence has not
suggested any other cause for what they admit was a tear in the cartilage,
other than frequent golfing, nor have they put forward any contradictory expert
opinion evidence. Mr. Rutter had been an avid golfer for many years before
the accident and had not experienced any problems with his wrist.

[41]        
I find, on a balance of probabilities, that the accident was the cause
of Mr. Rutter’s wrist injury.

(e)                Injury to low back

[42]        
Mr. Rutter’s primary complaint concerns low back pain and the
effect that it has had on his overall functioning. He submits that apart from
some episodes of back pain in the past which were relieved by chiropractic
treatment, before the accident he was a healthy and very active man in his
forties. Mr. Rutter submits that because of the accident he suffers
chronic low back pain that is not improving with time; if anything, it is
getting worse. He submits that it affects his ability to work, to engage in
recreational pursuits, particularly running and golfing, which he frequently
enjoyed before the accident, and has affected his ability to sleep, to
concentrate and generally enjoy life.

[43]        
The defendants do not dispute that Mr. Rutter sustained a soft
tissue injury to his low back but submit that he exaggerates the injury and its
effect on his functioning.

[44]        
Mr. Rutter has attended the clinic where Dr. Jacobs practises
since November 1991 and Dr. Jacobs has been his family doctor since
January 1999. Prior to the accident, the only time that Mr. Rutter sought
medical attention from Dr. Jacobs or other physicians at the clinic was in
August 2003, when he saw Dr. Jacobs once because of low back pain as a
result of stepping in a pot hole when golfing.

[45]        
Mr. Rutter testified that after this incident in 2003, he
experienced episodes of back spasm every three months or so. He admitted that
he had episodes of low back pain in 2003, 2004 and 2005. He did not see his
doctor on those occasions, but did have some chiropractic treatments.

[46]        
Following the accident, Mr. Rutter saw Dr. Jacobs frequently
because of low back pain. The following excerpts relating to low back pain are
taken from Dr. Jacobs’ reports:

January 16, 2007

 He also stated that his low back pain was improving on the
right side. There was no radiation to his legs. … Assessment at that time was
soft tissue injury to his neck which had resolved but persistent low back pain.
He was referred to a physiotherapist.

March 7, 2007

…he stated that his neck was okay with no headaches. He
still had low back pain.

April 11, 2007

 still complaining about low back pain, which seemed to be
less painful. He found that the pain was worse when he went golfing and also
with running.

June 1, 2007

 still complaining about low back pain. He wanted an
MRI. On examination he had tenderness of the LI area and bilateral sacroiliac
joints, right greater than left. Assessment at that time was persistent soft
tissue injury to his low back. An x-ray was ordered.

June 7, 2007

… x-ray … showed lumbar degenerative disc disease. He was
sent for a CT scan.

July 19, 2007

…CT scan … showed a grade I anterolisthesis.

August 20, 2007

…still complaining of a sore low back.

December 3, 2007

…complained of right sacroiliac pain. … Assessment at that
time was soft tissue injury to his low back.

March 27, 2008

…still complaining about a sore back. … Assessment at that
time was soft tissue injury of his low back. He was referred to Dr. Dommisse.

May 26, 2008

… stat[ed] that his chronic low back pain was actually
getting worse. … Assessment at that time was soft tissue injury to his
low back with grade I anterolisthesis of L5/S1. He was to have repeat x-rays
and CT scan and sent to Dr. Dommisse.

September 19, 2008

…CT scan … showed L4/5 spondylolisthesis unchanged from the
previous CT scan.

December 4, 2008

…stat[ed] that he still had intermittent low-back pain.

January 12, 2009

…Assessment was that of flare up of his low back pain….

April 6, 2009

…still complaining about variable low back pain.

April 14, 2009

… he stated that his back was improving slowly ….

April 20, 2009

…stated his back was getting worse.

August 6, 2009

… he saw Dr. Dommisse who suggested a steroid injection
and deferred surgery.

September 28, 2009

… he returned to the clinic stating that he still had back
pain.

October 20, 2009

… he returned to the clinic stating that he still had
intermittent low back pain when he lifts weights or runs. Therefore, he avoids these
activities.

March 8, 2011

… His main problem is
persistent low back pain, which has not responded to steroid injections or
physiotherapy.

[47]        
Mr. Rutter received a course of physiotherapy treatments for his
low back during the period January to April 2007 and some further physiotherapy
treatments in August and September 2007, but they were largely ineffective.

[48]        
Dr. Jacobs referred Mr. Rutter to a specialist, Dr. Dommisse.
I did not hear from Dr. Dommisse and no report authored by him was filed.
According to Dr. Jacobs, Dr. Dommisse contemplated surgery at one
time, but ultimately recommended against surgery. Dr. Dommisse used
steroid injections to try to reduce the pain, but they were largely
ineffective, according to Mr. Rutter.

[49]        
In his most current report of March 8, 2011, Dr. Jacobs summarized
as follows:

In summary, Texas Rutter was involved
in a motor vehicle accident on December 15, 2006. He suffered from soft tissue
injuries to his neck, low back and his left wrist. The neck pain has completely
resolved. The left wrist injury has been partially relieved with an ulnar
osteotomy by Dr. Perey. However, he still gets occasional sharp pain in
his left wrist with certain movements. His main problem is persistent low back
pain, which has not responded to steroid injections or physiotherapy. It has
curtailed many of his activities including running, golf, and home maintenance
renovation and has had an impact on his sexual relationship with his wife. He
has also had to change his career within the same company as a result of this
injury. He has learned to cope with the pain without medication. His prognosis
is guarded. He has had this pain now for four years and it is very unlikely
that his pain is going to improve over time. However, he has learned to tolerate
the pain with changes in his personal and professional endeavors.

[50]        
Dr. le Nobel’s report contains the following opinions regarding Mr. Rutter’s
back pain and its cause:

It is now over four years and five months since the December
15. 2006 motor vehicle collision in which Texas Rutter was injured. Based on
the time elapsed since the motor vehicle collision and based on his symptoms
ongoing, I diagnose his pain as chronic. (Chronic pain is pain which persists
for longer than tissue healing is felt to require. Tissue healing is generally
felt to occur within 10 to 12 months of injury).

I diagnose his low back pain as mechanical spinal pain.
(Mechanical spinal pain is pain felt primarily in the spinal column, at times
referred from the spinal column to adjacent areas of the trunk and limbs, made
worse by changes in posture and changes in position. The understanding is that
mechanical spinal pain is generated in injured structures in and near the
spinal column).

Texas Rutter’s account of being able to play golf, as much as
100 times a year and being able to run between 6 and 13 miles a day several
times a week, indicates he made a symptomatic and functional recovery from the
low back pain earlier in his life.

…

Absent the December 15, 2006 motor vehicle collision, Texas
Rutter would not have been anticipated to develop the chronic limiting low back
pain, which he has felt over the past four years and five months and more.

Texas Rutter has not recovered
from the December 15, 2006 motor vehicle collision. He is deconditioned with
weight gain and reduced physical capabilities based on his account today. His
examination today shows restriction of ranges of motion in his cervical spine
and in his hips. He reports as well pain at his right and left hips. His deconditioning
is multifactorial and contributed to by injuries from the motor vehicle
collision.

[51]        
Dr. le Nobel recommended that Mr. Rutter engage in a program
of physiotherapy and exercise, including core muscle strengthening, overseen by
a kinesiologist and exercise-based physiotherapist. He was of the opinion that
some improvement is reasonably anticipated, but that a full return to all of
his pre-accident capabilities is not likely.

[52]        
Mr. Rutter has an underlying spondylolisthesis, which is a
condition in which the vertebrae are out of proper position, but this was
largely asymptomatic prior to the motor vehicle accident.

[53]        
I find that Mr. Rutter’s suffers chronic back pain that was caused
by the accident of December 15, 2006. I find further that it is unlikely that
he will return to his pre-accident level of activity, although it is likely
that he can achieve some improvement with regular exercise, including core
muscle strength training.

3.       Impact of Mr. Rutter’s
injuries on his employment, recreational pursuits and daily life

[54]        
Mr. Rutter was 49 years old at the time of the accident and is now 54
years old. He was employed by a large, multi-national food company as a Chain
Development Manager. His job involved selling food products that his company
manufactured to large restaurant chains. Mr. Rutter spent part of his time
working in his office, but he also spent time attending trade shows, giving
presentations and meeting with clients away from his office. He spent a
significant amount of his time travelling throughout Canada and the United
States. In October 2010, Mr. Rutter accepted a new position as a Sales
Training Manager with the same employer. He now works from an office in his
home as well as attending training sessions for salesmen. While this change
resulted in much less travel, I can see nothing in the evidence to suggest that
Mr. Rutter’s employer made the change to accommodate him for a loss of his
capacity to perform his job. In my view, the change of position had nothing to
do with the accident.

[55]        
Mr. Rutter has not missed any time from work since the accident and
he does not advance a claim for past loss of income. Mr. Rutter testified
that he was able to do his job, although it took him longer to perform certain
tasks. Sometimes he had to cancel business trips because his back could not
tolerate long flights, but he was able to rearrange appointments to get his
work done. Mr. Rutter’s employment performance reviews since the accident
suggest that he was able to maintain a high level of performance at his job.
His 2007 performance rating was “fully meets expectations”. In 2008, his
performance rating was “often exceeds expectations”. For the review period
2009-2010, his performance rating was “often exceeds expectations”. His most
recent review indicated that his supervisor felt that Mr. Rutter’s
interpersonal skills were somewhat lacking, but there is no indication that
physically he is impaired from performing his job.

[56]        
Mr. Rutter described an incident during a business trip in May 2008,
when his legs gave way and he collapsed while checking into a hotel in Chicago
for a trade show. He said that after a few minutes he was able to move around,
but his back was very sore and he walked hunched over. He also described a
couple incidents when he was bending over and found that he could not stand up
again for several minutes. On one of these occasions he spent about three days
in bed.

[57]        
A significant part of Mr. Rutter’s employment involved golfing with
his customers’ representatives to promote and market his company’s products. Mr. Rutter
estimated that he played somewhere between 75 and 125 rounds of golf a year,
much of it in connection with his employment.

[58]        
Mr. Rutter continued to golf after the accident but on a much
reduced frequency. When he changed jobs in 2010, Mr. Rutter was no longer required
to play golf as part of his employment. Mr. Rutter has continued to play
golf occasionally on a recreational basis. He testified that, in 2010, he
played golf in connection with his employment on about twelve occasions. He had
played about eight rounds of golf in 2011, up to the time of the trial. Mr. Rutter’s
handicap has dropped from 9 to 18 since the accident.

[59]        
In addition to being an avid golfer, before the accident, Mr. Rutter
ran on average six to 13 miles per day. He ran in the annual Vancouver Sun Run
and in other charity runs. Mr. Rutter said that he tried running after the
accident, but found it very difficult. In January 2007, Mr. Rutter
participated in a charity 5 kilometre run, walking part of the time. Mr. Rutter
also participated in the Vancouver Sun Run in April 2007, although he had to
walk parts of the course. He was able to complete the race in 58 minutes compared
to times of 55 minutes in 2005 and 2006. He said that immediately after completing
the run he literally collapsed and had to be helped to his wife’s car to be
driven home. He said he was exhausted, his back was extremely sore and he spent
the rest of the day in bed. Mr. Rutter said that he now walks and
sometimes jogs on a treadmill.

[60]        
Mr. Rutter was also on a curling team prior to the accident. After
the accident he was unable to tolerate the sweeping, so he became a skip, where
he did not have to sweep.

[61]        
Mr. Rutter testified that his back pain prevents him from doing
yard work that he used to engage in, including cutting the lawn, edging,
trimming the trees in his yard twice a year, trimming shrubs, working in the
flower beds and pressure washing. He has also not been able to assist in the
physical labour when he and his wife re-insulated their house and had new
windows installed.

[62]        
Mr. Rutter testified that, in addition to the other physical
effects of his injuries, he experienced some erectile dysfunction after the
accident that affected his sexual relations with his wife. Mrs. Rutter
confirmed that their sexual intimacy was negatively impacted as a result of Mr. Rutter’s
discomfort. It appears that Mr. Rutter raised this issue with his doctor
on only one occasion, on July 24, 2007, when Dr. Jacobs suggested that he
use Viagra to improve his sexual performance. It appears that Mr. Rutter
was never referred to a urologist to further investigate this issue.

[63]        
Mr. Rutter’s injuries, particularly his chronic low back pain, have
affected his ability to sleep soundly and have, at times, caused him to be
grumpy at times. He also complains that he is less able to concentrate,
although his difficulty in this regard seems to have been associated with his
use of certain pain medication, particularly Ralivia, which is an opioid
analgesic. Mr. Rutter testified that taking that medication clouded his
judgment, so he stopped using that medication. He now uses Tylenol for pain
relief.

[64]        
Mr. Rutter’s wife, his daughter and his friend, Ms. Renee
Kinnear, all confirmed the significant change in Mr. Rutter’s level of
activity since the accident.

4.       Non-pecuniary damages

[65]        
Mr. Rutter led a very active life before the accident and was
involved in a number of sports, particularly golf and running. His injuries,
particularly the back injury, have led to a significant change in lifestyle for
Mr. Rutter. Since the accident, Mr. Rutter has had to reduce his
sporting activities substantially. He is also curtailed somewhat in his
day-to-day activities, including assisting with housework and household maintenance.
He has difficulty sleeping and, at times, is more irritable than he was before
the accident. Fortunately, Mr. Rutter has been able to maintain his
full-time employment despite his symptoms. I am satisfied that Mr. Rutter
finds his life today more frustrating and less enjoyable than previously. Mr. Rutter
suffers chronic back pain that is likely to continue well into the future,
although Dr. le Nobel is of the opinion that if Mr. Rutter engages in
an exercise regime that is developed and maintained with the assistance of a
physiotherapist and kinesiologist some improvement in his symptoms is probable.

[66]        
The plaintiff submits that an appropriate award of general damages for
pain, suffering and loss of amenities would be in the range of $65,000.00. He
refers to three cases in support of his submission on quantum: Kuskis v. Tin,
2008 BCSC 862; Kerr v. Macklin, 2004 BCSC 318; and Lo v. Thompson,
2007 BCSC 1330.

[67]        
Ms. Kuskis was a 38-year-old operations manager at a large travel
agency. She was involved in a car accident, which exacerbated a pre-accident
condition involving migraine headaches, neck and shoulder pain. The court found
that with treatment the plaintiffs would probably improve over the next five
years, but that the neck and shoulder pain would probably persist indefinitely.
The court summarized the affects of the plaintiff’s injuries at paras. 141
– 143:

141 Ms. Kuskis has suffered a significant
worsening of her painful pre-existing migraine disorder and a new form of
headache due to her soft tissue injuries. She has also suffered a new form of
low grade, but persistent, neck and shoulder pain. As a result of her increased
headaches and pain, she is sometimes exhausted, irritable and unhappy. She is
also less able to produce large volumes of computer-based work in short periods
of time. Given her changed employment circumstances this compromised work
capacity, though minimal, is a source of potential frustration and stress.

142 Ms. Kuskis is a stoic and determined
person. Despite her increased headaches and neck pain she remains physically
active, upbeat and productive most of the time. She requires painful steroid
injections, however, to control her increased neck and shoulder pain and
associated symptoms. She also occasionally requires strong medication such as Oxycodone
to manage her pain.

143 Although Ms. Kuskis
can work, travel and socialise most of the time without significant impairment,
her personal life has been diminished by her increased headaches and pain. In
particular, Ms. Kuskis’ ability to form and maintain intimate
relationships has been compromised by her increased irritability and fatigue.
This, too, is a source of frustration and stress.

[68]        
The court awarded $65,000.00 in non-pecuniary damages.

[69]        
Mr. Kerr was a 51-year-old man who suffered a soft tissue injury to
his neck and back as a result of a car accident that resulted in persistent
pain descending from the left of his neck down his back in a reverse-L pattern,
as well as discomfort and numbness in left pinkie and ring fingers. The court
found that these symptoms would be with the plaintiff for the rest of his life.
The plaintiff also suffered frayed nerves, sleep disturbance, tiredness and
irritability. The injury resulted in the plaintiff having to stop playing
rugby, a sport that he loved playing, and mountain biking. The injury also
reduced his ability to control his Type 2 diabetes through exercise. The court
assessed non-pecuniary damages at $65,000.00.

[70]        
Ms. Lo was a 27-year-old woman at the time of the accident. She was
physically fit and enjoyed excellent health. She worked out regularly and
enjoyed mountain biking and snowboarding. As a result of the accident, Ms. Lo
suffered soft-tissue injuries resulting in neck and back pain, and headaches
which were likely to persist indefinitely. Her symptoms forced her to greatly
reduce her former active lifestyle. Non-pecuniary damages were assessed at
$65,000.00.

[71]        
The defendants’ submission with regard to non-pecuniary damages put
forward three scenarios:

1.       Short-lived
soft tissue injuries to the plaintiff’s neck and back caused by the accident,
but the wrist injury not caused by the accident. The defendants submitted that
if the court found that this scenario was accurate, non-pecuniary damages in
the range of $7,500.00 to $12,000.00 would be appropriate.

2.       Soft-tissue
injuries with chronic low back pain caused by the accident, but the wrist
injury not cause by the accident. The defendants submitted that if the court
found that this scenario was accurate, non-pecuniary damages in the range of
$35,000.00 to $40,000.00. The defendants relied on Elgood v. Ellison,
2010 BCSC 442; Sharpe v. Tidey, 2009 BCSC 948; and Sandher v. Hogg,
2010 BCSC 1152.

3.       Soft-tissue
injuries, chronic low back pain and wrist injury, all caused by the accident.
In this scenario, the defendants submitted that the appropriate range of
non-pecuniary damages would be $45,000.00 to $50,000.00. The defendants rely on
the decisions in Mawji v. Hendry, 2007 BCSC 1880 [Mawji]; and Perez
v. Vancouver (City), 2002 BCSC 1773 [Perez] as illustrative of this
range of damages.

[72]        
I have found that it is the third scenario referred to by the defendants
that actually occurred.

[73]        
In Mawji, the plaintiff suffered soft-tissue injuries to her
neck, back and left knee and right wrist. The injury to the wrist was the most
serious of the injuries. At the time of trial, some four years after the
accident, the plaintiff had only flare-ups in her neck back and knee, but complained
of persistent the problem with her wrist, which restricted her ability to participate
in sports to the same degree that she enjoyed before the accident. The medical
evidence concerning the prognosis with regard to the wrist was “inexact”, but
the court found that there was no evidence that the plaintiff’s problems with
her wrist would persist in the long term. Non-pecuniary damages were assessed
at $45,000.00.

[74]        
In Perez, the plaintiff fell on uneven pavement and fractured her
wrist, requiring surgery to repair the damage. The plaintiff claimed a
permanent disability in her left hand and wrist that forced her to give up
certain sports that she used to enjoy, namely tennis and volleyball, and
affected her ability to perform many day-to-day activities. The plaintiff also
claimed that the injury also impaired her ability to type, which affected her
employment. The court had serious reservations about the reliability of the
plaintiff’s evidence concerning the impact of the injury on her ability to work
and her life. The court also found that the plaintiff was intending to undergo
further surgery for which there was a 75% chance that the plaintiff’s pain
would be improved or significantly eliminated.

[75]        
At paras. 86-89, the trial judge summarized the impact of the
accident on the plaintiff:

86 The plaintiff nevertheless has since the
accident suffered pain and the loss of mobility of her wrist which has had a
significant impact on her lifestyle.

87 She was an active person before the fall,
and, even though the injury was not to her dominant hand, it has affected her
ability to play and enjoy tennis, volleyball and to do gardening and housework.
I think the injury has also affected the plaintiff’s ability to enjoy work to
the extent that she did prior to the accident.

88 Ms. Gillespie has developed reactive
stiffness in her left neck, shoulder and elbow. She also has developed
osteoarthritis. The further surgery requires a bone graft from her hip and
there will further pain and discomfort and a period of convalescence.

89 Although I have
noted in my comments on credibility that her evidence must be treated with
caution, the accident has clearly had a significant effect on her enjoyment of
life and will continue to have an impact in the future.

[76]        
Non-pecuniary damages were assessed at $50,000.00.

[77]        
In my view, the chronic low back pain which Mr. Rutter experiences
has a more significant impact on his life and the prognosis for significant
improvement is not as good as was the case in Mawji and Perez. In
my view, the authorities cited by Mr. Rutter are more representative of an
appropriate range of non-pecuniary damages considering the nature and effect of
his injuries. I assess non-pecuniary damages at $65,000.00.

5.       Claim for loss of future earning capacity

[78]        
The plaintiff advances a claim for loss of earning capacity, which he
says should be valued at $75,000.00. He advances two bases for his claim of
loss of earning capacity. The first basis is that he was reassigned from a
position as a Chain Development Manager to one as a Sales Training Manager. Mr. Rutter
says that while his base salary remained the same, the position he is now in does
not offer him as great a potential to earn bonuses as did his former position,
having been reduced from 0 to 37.5% to 0 to 15% of his base salary. Thus far,
however, he has not suffered any reduction in salary. Mr. Rutter also says
that he does not feel that his performance in the new position is as good as it
was in his former position and he is concerned about job security. He says that
if he loses his current job he will be less marketable and that he has
therefore suffered a loss of capacity.

[79]        
The second basis upon which Mr. Rutter advances his claim for loss
of earning capacity is that he has lost the opportunity to start his own
renovation business. His evidence was that before the accident he had
thoughts of retiring at age 55 and starting a renovation business with a friend
of his. He says that he is no longer able to carry out the physical work that
would be required to operate such a business. 

[80]        
The defendants submit that the plaintiff has failed to establish an
evidentiary basis for a claim for loss of earning capacity. They say that Mr. Rutter
has not established that the accident has caused a real and substantial
possibility of a future event that might lead to an income loss.

[81]        
The question of what is required to establish claim based on loss of
earning capacity was considered by the Court of Appeal recently in Perren v.
Lalari, 2010 BCCA 140 [Perren]. In that case, the plaintiff was
involved in a motor vehicle accident and suffered neck and back injuries. She
developed chronic pain which rendered her unable to participate to the same
extent in normal physical family life, housekeeping and recreational
activities. These symptoms were likely to continue indefinitely. After the
accident the plaintiff continued to be employed by the same employer as before
the accident. The trial judge found that the impact of the accident on the
plaintiffs’ future earnings was minimal because of her chosen career path, but
awarded her $10,000.00 for future income loss on the basis that she was less
marketable as an employee.

[82]        
On appeal, Garson J.A., giving the judgment of the Court, stated the
question for determination at para. 4, as follows:

4 [T]he question
is whether a plaintiff who demonstrates a diminishment in her earning capacity
no matter how slight, is entitled to some award of damages, even where she
cannot demonstrate any substantial possibility that that lost capacity will
result in a pecuniary loss.

[83]        
Garson, J.A. then reviewed a number of prior judgments in this area and
discussed the two approaches that emerge from the authorities. One approach,
which she termed the “real possibility” approach is illustrated by Steenblok
v. Funk (1990), 46 B.C.L.R. (2d) 133 (C.A.) [Steenblok], where a
demonstrated pecuniary loss is quantifiable in a measureable way.

[84]        
In Steenblok, the plaintiff had been employed as a raker on a
paving crew before he was injured. He returned to that employment for a time,
but found the work too strenuous. He found work as a security guard but gave up
that job because he did not like it. The trial judge dismissed the plaintiff’s
claim for loss of future earning capacity on the ground that he had failed to
show that his chronic pain was irreversible. Hutcheon J.A., at. p. 136,
stated what he considered to be the governing principle:

[I]n dealing with future loss
substantial possibilities must be considered by estimating the chance of the
event occurring and the balance of probabilities is confined to determining
whether it did in fact happen in the past.

[85]        
Hutcheon J.A. further said:

The question then is what is the
chance that "the affliction of chronic debilitating pain is indeed
irreversible" to use the words of the trial judge. That chance is
certainly a substantial possibility if Steenblok attempts to work full time in
his job as a raker on an asphalt paving crew.

[86]        
The appeal was allowed by increasing the damages awarded by the trial
judge by $150,000.00  for loss of future earning capacity based on the
difference between the plaintiff’s rate of pay from his former employment and
that of a security guard for a period of time up to age 60.

[87]        
The other approach, which Garson J.A. referred to as the “capital asset”
approach is illustrated by the decision in Pallos v. Insurance Corp. of British
Columbia (1995), 100 B.C.L.R. (2d) 260, 53 B.C.A.C. 310 [Pallos]. In
that case, the plaintiff suffered a fracture of his leg when he was struck by a
car. He had permanent pain that would limit his capacity to perform certain
activities in the future. However, the plaintiff remained employed by his
pre-accident employer. The trial judge declined to make any award for loss of
earning capacity on the ground that the plaintiff failed to establish, as
required by Steenblok, that there was a "real possibility" of
his being unable to work at his present job at some future date.

[88]        
Finch J.A. held this to be an error, saying at para. 29:

29 In my respectful
view, a consideration of this issue should not have been limited to the test
established in Steenblok v. Funk (supra). The plaintiff’s claim
in this case, properly considered, is that he has a permanent injury, and
permanent pain, which limit him in his capacity to perform certain activities
and which, therefore, impair his income earning capacity. The loss of capacity
has been suffered even though he is still employed by his pre-accident
employer, and may continue to be so employed indefinitely.

[89]        
Finch J.A. assessed damages for loss of earning capacity at $40,000.00.

[90]        
Madam Justice Garson also referred to Steward v. Berezan, 2007
BCCA 150, 64 B.C.L.R. (4th) 152 [Steward]. In Steward, the trial
judge awarded the plaintiff $50,000.00 as compensation for the impairment of
his earning capacity, even though the plaintiff remained employed in the same
occupation and there was no suggestion that he had any intention to go into a
career in which his injuries would be an impediment. At paras. 17-18,
Donald J.A. observed:

17 … The claimant bears the onus to prove at
trial a substantial possibility of a future event leading to an income loss,
and the court must then award compensation on an estimation of the chance that
the event will occur: Parypa [1999 BCCA 88] para. 65.

18 When the record
is examined according to that approach, I cannot see the basis for a
substantial possibility giving rise to compensation for diminished earning
capacity. There being no other realistic alternative occupation that would be
impaired by the plaintiff’s accident injuries, the claim for future loss must
fail.

[91]        
Based on her review of the case law, including Steenblok, Pallos
and Steward, Garson J.A. concluded, in Perren, as follows at paras. 30-33:

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.

33 On the facts of this case, the trial judge
found that there was no substantial possibility of a future event leading to an
income loss. That should have been the end of the enquiry. That was a
reasonable conclusion on the evidence because there was no evidence that she
was limited in performing any realistic alternative occupation.

[Emphasis in original.]

[92]        
It appears to me, based on Perren, that the question that I must
first answer is this: has the plaintiff proven that there is a real and
substantial possibility of a future event leading to an income loss? He says,
first, that there is a real and substantial possibility that he will lose his
job, and that if he does there is a real and substantial possibility that he
will not be able to find employment with comparable remuneration that he can
undertake given his chronic back pain.

[93]        
I am satisfied that if the plaintiff were to lose his job, it would not
be because of the accident. He has proven himself capable of working, without
missing any time, since the accident. He has performed his job well, according
to his periodic assessments. If he requires improvement with regard to his current
position, it is with regard to interpersonal skills and communication. In my
view, Mr. Rutter is an intelligent man with a good work ethic and is very
capable of improving in these areas. In my view, his fears regarding the
security of his employment with his current employer are not well-founded.

[94]        
Mr. Rutter submits, however, that circumstances other than his
performance might result in the loss of his job and, if that were to occur, he
would be less marketable as an employee. That would certainly be the case with
respect to jobs requiring significant physical capacity, but Mr. Rutter’s
experience is in the field of sales and management, where he has proven himself
capable, both before and after the accident. In my view, there is no realistic
possibility of his pursuing or attempting to pursue a career that would require
a physical capacity beyond that which his present job requires, which he has
been able to handle.

[95]        
With regard to the lost opportunity to start up a renovation business, I
am not satisfied that there was a real and substantial possibility that he
would have pursued such an undertaking. Mr. Rutter said he had thought of
starting such a business when he turned 55. He said he talked to his friend
about going into business, but the friend did not testify. No plan was put
forward concerning the proposed business. Mr. Rutter has done some
home renovations and did some work on the house that he built in Houston, which
I will deal with more fully later in these Reasons, but he is not a qualified
tradesperson. Further, I do not believe it is reasonable to suppose that Mr. Rutter
could have established and run a renovation business that could provide
remuneration greater than that which he has enjoyed and can continue to enjoy
from his current occupation.

[96]        
I am not satisfied that there is any basis upon which Mr. Rutter is
entitled to compensation for loss of opportunity or capacity to earn income in
the future.

6.       Cost of future care

[97]        
The plaintiff advances a claim for cost of future care supported, in
part, by the report of Ms. Linda Waithman, an occupational therapist, who
conducted a work capacity evaluation for Mr. Rutter. Ms. Waithman
provided an opinion with regard to Mr. Rutter’s future care needs based
upon her interview and evaluation of Mr. Rutter and her review of Dr. Jacobs’
medical reports. Ms. Waithman identified a number of future care items and
provided her estimate of the cost of the items and frequency of replacement.
They are set out in Appendix C of Ms. Waithman’s report, which is
reproduced below:

[98]        
According to a report prepared by an economist, the forgoing services
would have a present value of between $77,068.00 and $113,707.00. Counsel for Mr. Rutter
suggests an award of $50,000.00 would be reasonable compensation for the cost
of future care.

[99]        
The defendants submit that Mr. Rutter does not require
physiotherapy or kinesiology services. They point out that Mr. Rutter has
not attended physiotherapy in the past four years. He had been trained how to
do home exercises. They say that if it is a matter of motivation, Mr. Rutter
has a duty to apply himself. The defendants submit that Mr. Rutter does
not need a gym pass, since he has a gym in his home that is equipped with two
treadmills, a recumbent bicycle, a stair climber, a set of weights and a
Bowflex machine.

[100]     Dr. le
Nobel recommended that Mr. Rutter work with a kinesiologist and an
exercise based physiotherapist to help develop an exercise program. It seems to
me that once the program is developed and Mr. Rutter is monitored over a
reasonable period of time, there should be no need for ongoing physiotherapy as
suggested by Ms. Waithman. Dr. le Nobel recommended access to a
physiotherapist and kinesiologist several times a month for ten to twelve
months.

[101]     I accept
that Mr. Rutter needs the services of a kinesiologist and physiotherapist
to work with him to develop an effective exercise program. I accept that this
will involve more than simply showing Mr. Rutter what exercises to do; it
will require follow-up for some period of time to ensure that Mr. Rutter
stays on track. On the other hand, Mr. Rutter does have a duty to mitigate
his loss and to find the self-motivation to maintain the program. I would think
that if Mr. Rutter works in tandem with a physiotherapist and
kinesiologist, once a week over a period of six months, he should have
developed a program and a routine that will maximize his potential recovery.
Such a program would have a cost of between $2,400.00 and $3,240.00, based on
the cost estimates provided by Ms. Waithman.

[102]     I will
allow $2,820.00 for the future cost of physiotherapy and kinesiology services.

[103]     I agree
with the submission of the defendants that Mr. Rutter does not need a gym
pass considering the equipment that he already has.

[104]     With
regard to the costs associated with an ergonomic assessment and special
furniture and equipment for his work, Mr. Rutter is not stuck at a desk or
computer station for lengthy periods of time without the ability to move
around. He works from a home office. He is able to sit, stand and walk around
to relieve tensions as he desires. It is of some considerable significance, in
my view, that Mr. Rutter has demonstrated the ability to perform his work
without losing any time from work. I am not satisfied that the need for most of
these items of future care has been proven. I do agree that an Obus Forme Back
Support is reasonable. The present value of the cost of two back supports every
five years is approximately $750.00.

[105]     With
regard to housecleaning, Ms. Waithman is of the opinion that Mr. Rutter
is capable of performing the majority of the basic household tasks between
waist and shoulder height, but would have difficulty with lower and higher
level tasks. This would primarily involve vacuuming/mopping floors and washing
windows. Mr. and Mrs. Rutter share the household chores. Thus far,
they have not engaged any outside services to do the housecleaning. I am not
satisfied that Mr. Rutter is entitled to compensation in respect of
regular household chores.

[106]     I agree,
however, that Mr. Rutter is no longer able to perform some of the more physical
home maintenance that he used to and that he is entitled to be compensated so
that he can hire others to perform these services. These maintenance items
include washing the outsides of windows, pressure washing decks and walks,
cleaning gutters, touch-up painting and major pruning. I think a reasonable
allowance for these tasks would be ten hours, twice per year at a rate of
$40.00 per hour or $800.00 per year. I think it would be reasonable to suppose
that without the accident, Mr. Rutter would have ceased doing these
heavier tasks by the time he reached age 70. Using the multiplier table provided
by the economist, I calculate that this claim has a present value of $9,269.00.

[107]     With
regard to regular lawn mowing, the Rutters have a lawn in front of their house that
is about 60 by 40 feet in size and some grass along one side of the house that
is about 12 by 60 feet in size. Mr. Rutter testified that it takes about
an hour to mow the grass. Ms. Waithman agreed that Mr. Rutter is
capable of general yard clean up and is capable of pushing a lawn mower over
flat ground. I am not persuaded that Mr. Rutter requires assistance with
mowing his grass every ten days or so from spring until fall.

[108]     In summary
with respect to this head of damage, I award the sum of $12,839.00 for the cost
of future care.

7.       Extra costs associated with house in Houston

Background

[109]     In 2003, Mr. Rutter’s
daughter, Amanda, received a swimming scholarship at a university in Houston,
Texas. For a time, Ms. Rutter lived in a dormitory at the university but
was dissatisfied with that arrangement and wanted a place of her own. In 2005, Mr. Rutter
and his wife decided to build a house in Houston where their daughter could
live while attending university. They purchased a lot in or around June 2005, and
construction on the house began in the summer of 2006. By December 15, 2006,
construction had reached the stage where the house had been largely framed. Mr. Rutter
testified that before the accident he went to Houston once or twice a month,
usually extending a business trip for a day or two over a weekend. He hired
casual labourers from time to time. He supervised the labourers as well as
doing physical labour himself. The house was completed by December 2007.

Nature of the claim

[110]     Mr. Rutter
testified that after the accident he realized he could not carry on with the
construction on his own and that, in or around March 2007, he hired a general contractor,
Mr. Pratt, to supervise the balance of construction and provide skilled
labour. Mr. Pratt remained on the job until late 2007, when the majority
of the work had been completed. Mr. Rutter testified that there was only
some finishing work left to do, which he was able to complete with the help of
his daughter and son-in-law. Mr. Rutter asserts that if he had not been
injured in the accident he would have completed the construction of the house
himself, hiring skilled labourers only when he did not have the necessary
skills to do the work. He claims that he is entitled to compensation for the
cost of hiring Mr. Pratt and other persons to do work that, but for the
accident, he would have done himself.

[111]     At trial,
the plaintiff put in evidence a document that summarized the value of the
services paid by him for work that he said he would have done if he had not
been injured. That summary amounted to $98,384.75. During closing submissions,
counsel for Mr. Rutter revised the summary, reducing the claim to a total
of $74,567.87.

[112]     The table
below sets out the particulars of Mr. Rutter’s original and revised claim:

Documentary evidence

[113]     Mr. Rutter
was unable to provide any receipts or other documents to substantiate many of the
payments to third persons regarding this claim. He provided invoices in support
of items 15-16, 19-20, 22-25 and 30, which was work that was done by persons
other than Mr. Pratt.

[114]     Mr. Rutter’s
explanation for his inability to provide documentary evidence is as follows. Mr. Rutter
testified that in the early summer of 2008 his adjuster at ICBC, Ms. Levy,
requested receipts in support of his claim for the extra construction costs. He
said that he and his wife compiled the receipts and showed them to Ms. Levy,
but she told him that she did not require the receipts at that time. He said
that subsequently Ms. Levy called him asking for the receipts and he asked
his wife to deliver them to Ms. Levy’s office. Ms. Rutter testified
that as requested by her husband, she took a large envelope full of receipts to
ICBC in the summer of 2008, and left the envelope, addressed to Ms. Levy,
with a woman at the counter in Ms. Levy’s office. She said she did not
make copies of the receipts because she thought they would be returned.

[115]     Ms. Levy
testified that she met with Mr. Rutter on March 19, 2008, told her about
the house he was building in Houston and said that he would be spending an
extra $50,000 to $60,000 in costs for the construction because of his injuries
and would be making a claim in that amount. She said that she advised Mr. Rutter
that he would have to produce documents to support the claim and that he did
not have any documents with him at the meeting. On July 2, 2008, Ms. Levy
spoke to Mr. Rutter asking for the documents and he told her that his wife
had dropped off the receipts. Ms. Levy made enquiries of the receptionist
and mail clerk in her office, but no documents were located.

[116]     Mr. Rutter
testified that he was unable to locate Mr. Pratt and a number of other
workers whom he paid in order to obtain confirmation of the amounts paid to
them.

[117]     Mr. Rutter
said that he paid Mr. Pratt and the other workers whom he retained in
cash, using a US bank account into which he periodically transferred money from
his Canadian bank account. Mr. Rutter was unable to provide any records
from the US bank and testified that he was told by the bank that they did not
keep records past two years. Mr. Rutter was able to produce only a few
documents relating to his Canadian bank account. He acknowledged that he received
electronic statements from his Canadian bank, but said that he had been unable
to obtain copies of the statements from the bank. The documents that Mr. Rutter
did produce indicate the following payments into the US bank account (all
amounts in US dollars):

Discussion re items of claim

[118]     The
evidence with regard Item 1 was confusing at best. As I indicated previously, Mr. Rutter
testified that he hired Mr. Pratt to both supervise the construction and
to provide skilled labour, which Mr. Rutter would have undertaken had he
not been injured. The implication is that whatever Mr. Rutter could have
done, Mr. Pratt would do. According to Mr. Rutter, Mr. Pratt was
to hire other skilled workers only where the job was outside of Mr. Pratt’s
expertise. Mr. Rutter testified that he and Mr. Pratt agreed on a
price to complete the work.

[119]     Mr. Rutter
testified that Item #1, as initially put forward, was for payments made to Mr. Pratt
for his skilled labour and for managing the project. He did not say what
portion of the claim represented labour and what portion represented management
of the project. During his examination in chief, Mr. Rutter testified that
Item #1 should be reduced by one-half because he conceded that he could have
performed the supervisory part of what Mr. Pratt did, but he would still
have had to hire skilled labourers to do the work that Mr. Pratt did. He said
that he estimated the value of Mr. Pratt’s skilled labour was about one-half
of what Mr. Pratt charged, but provided no basis for the estimate. Mr. Rutter
did not identify what types of skilled labour Mr. Pratt provided or how he
valued that labour.

[120]     Item #5 is
a claim for the cost of having Mr. Pratt design and build a curved
staircase. Mr. Rutter testified he would have been able to do one-quarter
of that work, but would have needed someone with more expertise to design it
and take the lead role in its construction. Hence, he reduced the claim to 25%
of the total charged by Mr. Pratt. However, if Item #1 was to cover the
work that Mr. Rutter would otherwise have done, 25% of the cost of
constructing the staircase ought to be included in item #1 and rather than
being a separate item.

[121]     There are
a number of other items which Mr. Rutter testified he would have done,
even though they involved special skills and that Mr. Pratt had to do in
his place and would, therefore, fall under Item #1. It appears to me that these
items would include at least part of Items 6, 8, 10, 11, 16 and 26. It also
appears to me that these items would have included Items 14, 15, 18, 19, 20,
22, 23, 24, 25, 28, 29 and 30. Some of these items, namely Items 15, 16, 19,
20, 22 – 25, and 30, were apparently completed by someone other than Mr. Pratt
because Mr. Rutter provided invoices from other persons. Mr. Rutter
gave no explanation why Mr. Pratt did not do this part of the work. With
regard to the other items, Mr. Rutter did not testify whether Mr. Pratt
or someone else did the work. If Mr. Pratt did the work, it should come
within Item #1. If Mr. Pratt did not do the work, there is no explanation
for why he did not do it.

[122]     Mr. Rutter
testified that Item #2 represents the cost of transferring permits from Mr. Pratt’s
name into his own name before obtaining the final occupancy permit. He
maintained that he could not obtain any documentary evidence to confirm this
claim because the City of Houston did not retain any records relating to them
for more than two years. I find that to be simply incredible.

[123]     There are
other circumstances in addition to the forgoing that cause me to doubt the
validity of Mr. Rutter’s claim for extra costs of building as presented. Mr. Rutter
makes a claim under Item #8 for one-half of the cost of $4,300.00 relating to
the heating and air conditioning system for work that he says he would have
done, yet he produced an invoice from a contractor in the amount of $3,451.00
purportedly for installing HVAC ducting and water lines and installing a
Heat/AC exchanger in the attic for which he makes no claim, on the basis that
the work covered by the invoice was beyond his expertise. There appears to me
to be an overlap in that both Item #8 and the invoice refer to installing
ducting and water lines.

[124]     Mr. Rutter
asserts that he and his son-in-law would have installed all of the drywall in
the house, including that placed on the ceilings; although he concedes he would
have hired someone to do the mudding, taping and sanding. He therefore claims
one-half of the total cost for the drywall. I do not believe that Mr. Rutter
would have done that work. It involves very heavy sheets, requiring special
tools and experience. Further, I do not believe that Mr. Rutter would have
had the time to do the work. He testified that it would have taken him ten days
just to install the drywall. He was working full-time in 2007 and had only four
weeks of holiday that year, plus whatever weekends he might have been able to
arrange around a business trip that took him to the US.

[125]     Mr. Rutter
testified that he was able to drill all of the holes in the studs where
electrical cable was to pass through, but was unable to pull the cables from
where the electrical panel would be located to their destinations. If he was
drilling holes, I cannot see why his daughter, a very athletic woman and his
son-in-law could not have worked with him to pull the cables. I do not believe
it was necessary to hire anyone to do this work if Mr. Rutter did not want
to. Further, there is no evidence as to who he paid to do this work. It is not
skilled labour and even at $25.00 per hour, the claim represents 260 hours or
over one month of labour. I cannot believe it took that long. If it did, Mr. Rutter
could not have spent that much time pulling cable.

[126]     Mr. Rutter
agreed that texturing the walls was an art, that he would have had to rent
special equipment and that he had never done that type of texturing before. He
said he would have tried to do it and that if he was not able to do the job he
would have contracted it out. I do not believe that he would have taken that
chance when he was building a custom home.

[127]     Mr. Rutter
was living in British Columbia and working full-time when the house was under
construction. As I have already noted, he had only four weeks of vacation in
2007. In the six month before the accident he made some trips to Houston on
weekends but his business did not take him to Houston so he made the trips by
extending business trips to other locations, particularly Chicago. Mr. Rutter
could not have afforded to travel to Houston every weekend to work on the
house, nor would it have made any sense economically.

[128]     Mr. Rutter’s
revised claim for labour that he says he would have done but for the accident
totals $74,567.87. At a labour rate of $50.00 per hour, that represents 1,491
hours or 186 eight hour days or 26 weeks. At $100.00 per hour, the claim still
represents 93 eight-hour days or over three months of full-time labour, seven
days per week, eight hours per day. Mr. Rutter could not possibly have
done all of this work by the end of 2007. It would likely have taken at least
an additional year to complete construction. Mr. Rutter testified that he
was in no rush to complete the house, but the purpose of the house was to
provide a home for his daughter so they must have wanted to complete the
construction sooner rather than later.

[129]     In the
end, having considered all of the evidence, I simply am not satisfied, on the
balance of probabilities, that Mr. Rutter would have done the work for
which he has claimed extra costs and that has incurred the extra costs as he
has alleged. This part of the claim is dismissed.

8.       Special damages

[130]     Mr. Rutter
claims special damages of $2,675.10, including a claim of $2,100.00 for
obtaining bank statements and other financial documents to substantiate his
claim regarding the extra costs associate with the house in Houston. As I have
dismissed that aspect of the claim, this portion of the special damages claim cannot
succeed. I therefore award special damages in the amount of $575.10.

90.     Failure to mitigate

[131]     The
defendants allege that the plaintiff has failed to mitigate his loss in that he
failed to follow Dr. Jacobs’ advice in December 2007 to continue with physiotherapy
and that, if he had done so, some of his low back symptoms might have been
relieved. They also submit that he failed to mitigate with regard to any
erectile dysfunction that he may have suffered by not using medications to deal
with the issue.

[132]     A
plaintiff cannot recover for losses which arose through the defendant’s wrong
but which could have been avoided had the plaintiff taken reasonable steps to
minimize the loss.

[133]     The onus
is on the defendant to prove that the plaintiff acted unreasonably in not
taking mitigative steps.

[134]     Mr. Rutter
testified that the course of physiotherapy he had during the period from
January to March 2007 did not relieve his symptoms of back pain. In August
2007, Mr. Rutter returned to a physiotherapist, who recommended an
exercise regime. Mr. Rutter said that he did the exercises for four or
five months. He said that he stopped doing the exercises after consulting with Dr. Jacobs.
He told Dr. Jacobs that he had difficulty doing the exercises because of
the amount that he travelled in connection with his work.

[135]     In
December 2007, Dr. Jacobs recommended that Mr. Rutter continue with
physiotherapy. In cross-examination, Dr. Jacobs testified that if Mr. Rutter
had continued with physiotherapy and home exercises it is possible that they
would have relieved some of his symptoms.

[136]     I am not
satisfied that Mr. Rutter acted unreasonably in not continuing with
physiotherapy and exercises recommended by the physiotherapist when he honestly
believed that he was not deriving any relief of symptoms from them. Further,
even if Mr. Rutter had continued with the physiotherapy, I am satisfied
that he would have continued to experience pain and discomfort and significant
interference with his pre-accident lifestyle. At most, Dr. Jacobs offered
the opinion that it is possible that if Mr. Rutter had continued with the
physiotherapy and exercise his symptoms would have been relieved somewhat.
While Dr. le Nobel opines that some improvement in symptomology can be
expected if Mr. Rutter maintains an exercise program designed and
supervised by a kinesiologist and physiotherapist, it is clear on the evidence
that Mr. Rutter cannot expect to return to his pre-accident condition.

[137]     While Mr. Rutter
and his wife both testified about some decrease in Mr. Rutter’s level of
sexual performance, it appeared to me that this was a relatively minor issue
compared to his continuing back problem and it is only a minor component of his
non-pecuniary damages.

[138]     I have
assessed Mr. Rutter’s damages for the cost of future care on the basis
that Mr. Rutter follows Dr. le Nobel’s advice.

[139]     I am not
persuaded that Mr. Rutter’s damages should be decreased on account of a
failure to mitigate.

V.       SUMMARY

[140]    
The plaintiff is entitled to judgment in the following amounts:

[141]    
Unless there are relevant circumstances of which I am not aware, the
plaintiff is entitled to his costs at Scale B.

“B.M.
Joyce J.”