IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120108

Docket: M106344

Registry:
New Westminster

Between:

Stephen Grant
Piper

Plaintiff

And

Saiyad Abdul
Hassan

Defendant

Before:
The Honourable Mr. Justice Pearlman

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff, Stephen Grant Piper, claims damages for personal injuries
sustained in a motor vehicle accident which occurred on August 31, 2006 at the
intersection of 64th Avenue and 140th Street, in Surrey, British Columbia.  The
plaintiff, who was driving a small Mazda car, had stopped at the intersection
when he was struck from behind by a three-quarter ton cargo van operated by the
defendant.

[2]            
The plaintiff is 50 years old, is married and has an adult daughter.  At
the time of the accident, Mr. Piper held the position of parts manager
with his present employer, Key Food Equipment Services Ltd.  Since October 2007,
Key Food has employed the plaintiff as a parts specialist, with no managerial
duties. The plaintiff claims that his employer demoted him because the injuries
he suffered in the motor vehicle accident prevented him from performing all of
the duties of his former position.

[3]            
Mr. Piper claims damages for non-pecuniary loss, past income loss,
loss of future earning capacity, cost of future care, and special damages.  He
claims that as a result of the motor vehicle accident he suffered soft tissue injuries
to his cervical, thoracic and lumbar spine, injuries to his knees and wrists, headaches,
sleep disruption, depression and anxiety.

[4]            
Mr. Piper maintains that he continues to suffer persistent low back
pain, occasional neck pain, depression, anger and anxiety as a result of the
August 2006 motor vehicle accident.

[5]            
Prior to the motor vehicle accident, the plaintiff was receiving
treatment for work-related depression.

[6]            
The defendant has admitted liability. However, while he admits that the
accident caused moderate soft tissue injuries to Mr. Piper, and a
temporary exacerbation of his pre-existing depression, the defendant says that
the plaintiff’s ongoing low back pain after December 2006 was not caused by the
motor vehicle accident.  The defendant says that at the time of the motor
vehicle accident, the plaintiff suffered from pre-existing degenerative changes
to his low back.  The defendant argues that the degenerative condition and a
further injury to the plaintiff’s low back, sustained when Mr. Piper
attempted to shovel snow in January 2007 account for his symptoms since that
time.  Further, the defendant contends that the plaintiff’s pre-existing
depression, although temporarily exacerbated by the motor vehicle accident, has
returned to his pre-MVA baseline, and that the depression now suffered by the
plaintiff is at a similar level to the depression he experienced in the months
leading up the August 31, 2006 motor vehicle accident.

ISSUES

[7]            
The issues raised in this action are:

(a)      What injuries did the plaintiff suffer as a
result of the August 31, 2006 motor vehicle accident?

(b)      Did the August 31, 2006 motor vehicle
accident cause or contribute to the plaintiff’s ongoing low back pain and
depression?

(c)      What
amounts, if any, are payable to the plaintiff as damages for non-pecuniary
loss, past income loss, loss of future earning capacity, cost of future care
and special damages?

BACKGROUND

The Plaintiff’s life pre-accident

[8]            
Mr. Piper was born in Calgary, Alberta. He had a difficult
childhood. Both his parents were alcoholics.  After his mother died when he was
11 years old, both he and his brother were placed in foster care.

[9]            
The plaintiff has supported himself since age 16.  He left high school
in Calgary before completing Grade 11 in order to find full-time employment.
The plaintiff held a variety of positions in shipping and receiving, and
restaurant equipment sales, before meeting his wife, who he married in 1982.  Mr. and
Mrs. Piper moved to Burnaby, British Columbia in 1988, where the plaintiff
secured a position as parts and service manager for his present employer, Key
Food. That company sells parts, and provides service for the repair and
maintenance of commercial restaurant equipment. Initially, Mr. Piper was
responsible for the supervision of four or five service technicians and a
warehouse man.  In 1993, Mr. Piper obtained his only formal trade
qualification, a Class C gas fitter’s ticket.

[10]        
In 1996, the plaintiff was involved in a tragic motor vehicle accident
in which a 12 year old boy died.  Mr. Piper who was impaired by alcohol at
the time of the collision, and is an alcoholic, pleaded guilty to causing death
by dangerous driving and served a term of imprisonment. The plaintiff accepted
responsibility for his actions. He joined Alcoholics Anonymous while in prison
and continued to attend AA meetings after his release. He has not consumed
alcohol since the 1996 accident.  Mr. Piper testified that membership in
AA has changed his life. Although he was severely depressed for several years
after the 1996 accident, with the support of AA, his family and his employer,
he was able to serve his sentence, return to work and become a functioning and
productive member of society once again.

[11]        
Over a period of about eight months preceding his reassignment to the
position of parts manager in July 2006, Mr. Piper found it increasingly
stressful to manage the service technicians.  Key Food had grown rapidly over
the years. As a consequence, the number of service technicians has expanded
from five or six to about 15, many of whom lacked experience, or were not fully
trained.

[12]        
In May and June 2006, Mr. Piper consulted with his family
physician, Dr. McGrath, complaining of work-related depression.  On June
14, 2006, Dr. McGrath inquired whether the plaintiff was experiencing
suicidal ideation, and noted that Mr. Piper saw no way out of his difficulties
in the workplace.  She increased the strength of his prescription for the anti-depressant
Efflexor, and prescribed an additional anti-depressant, Remeron.

[13]        
On July 19, 2006, at the plaintiff’s request, Key Food reassigned Mr.
Piper as parts manager, with no reduction to his annual salary of $74,354.  Mr.
Piper’s former responsibilities for management of the service department were
assumed by other members of the management team.  After Mr. Piper’s duties
were modified, he experienced a reduction in work-related stress.  The
plaintiff described the period between mid-July and August 31, 2006 as probably
the best time of his life since the accident of 1996.  He was able to manage
his work, and enjoyed his home, his family, and his friends.

[14]        
In his direct examination, Mr. Piper testified that before the
August 31, 2006 motor vehicle accident, he had only experienced low back pain
on one occasion, about three or four years earlier.  He explained that he
injured himself practicing martial arts, and experienced pain first in his left
leg, and later in his low back, for which he received physiotherapy for three
or four weeks. He gave up martial arts.  Mr. Piper testified that he had no
recurrence low back pain until the accident of August 31, 2006.

[15]        
There is a dispute concerning the plaintiff’s pre- accident history of
low back pain which I address later in these Reasons. However it is common
ground that from at least mid-July 2003 until the accident of August 31, 2006,
there is no medical record of the plaintiff seeking treatment for low back
pain. I find that Mr. Piper was free of low back pain for three years preceding
the subject accident.

[16]        
In 2003, Mr. and Mrs. Piper had purchased a home with a pool
situated on a half acre lot in Surrey. Throughout the trial, Mr. Piper referred
to this property as his family’s “dream home”. The plaintiff took pride in
owning and maintaining his home. Mr. Piper engaged in numerous home
renovation and maintenance projects, which frequently involved bending,
lifting, and the use of a wide variety of hand tools. The plaintiff constructed
new fences, a concrete and brick fire pit, built a new control panel for his
hot tub, installed a new pump system for the swimming pool, mowed the lawn and
maintained the garden. Prior to the August 2006 accident, Mr. Piper gutted
and rebuilt the master bathroom, painted all of the bedrooms, replaced the door
casings, and installed new locks and doorknobs throughout the upper floor of
the family home. He had started renovations to the laundry room and kitchen
before the accident.

The August 31, 2006 motor vehicle accident

[17]        
On August 31, 2006, Mr. Piper was the seat belted driver and sole
occupant of a small Mazda car, which he brought to a stop at or near the
intersection of 64^th Avenue and 140 Street in Surrey. The
plaintiff’s vehicle was struck from behind by a three quarter ton van operated
by the defendant. Just before the impact, the plaintiff had observed the
defendant’s approaching vehicle in his rear view mirror, and had braced
himself, with both hands gripping his steering wheel, and his foot on the
brake. The force of the impact embedded the rear bumper of the plaintiff’s
vehicle in the front grill of the defendant’s van, and resulted in a four
vehicle chain reaction collision, as the plaintiff’s vehicle was pushed into
the rear of the vehicle ahead, which in turn struck the vehicle in front of it.
As a result of the collision, the Mazda operated by Mr. Piper was a write-off.

[18]        
Based upon his brief observation of the defendant’s vehicle through his
rear view mirror, Mr. Piper estimated that the van was travelling at about 60
kilometres per hour when it struck his vehicle. Whether or not that estimate is
accurate, I find that the collision involved a significant impact, and was
caused by the negligence of the defendant, who was driving without proper care
or attention when he struck the plaintiff’s vehicle.

[19]        
Immediately following the accident, Mr. Piper experienced sharp pain
between his shoulders, neck and low back pain, and sore wrists and knees. 
Paramedics attended the accident scene.  The plaintiff did not require
hospitalization.  He telephoned his wife, who took him home.

  The aftermath of the accident

[20]        
On September 5, 2006 Mr. Piper first sought treatment from his
family physician, Dr. McGrath, for his motor vehicle accident injuries. 
He complained of sore knees and shoulders, and mid and low back pain.  Dr. McGrath
prescribed physiotherapy and pain killers and muscle relaxants, including
Tylenol 3, Celebrex, and Flexeril.  Between September 12, 2006 and April 12,
2007, the plaintiff received 45 physiotherapeutic treatments for complaints of
neck pain, mid-shoulder pain and low back pain.  Dr. McGrath also referred
the plaintiff for chiropractic treatment.  The chiropractor,
Dr. Titchener, treated Mr. Piper for his complaints of mid and low
back pain a total of 58 times between October 2, 2006 and April 17, 2007.

[21]        
Prior to the accident, Mr. Piper had booked September 1 through 17, 2006
as vacation time. As a result of his back pain, he curtailed his holiday plans,
and spent much of his vacation resting at home until he returned to work on
September 18, 2006. Between September 19 and December 31, 2006 the plaintiff
missed a total of 262 hours of work. Mr. Piper was absent from work for much of
October. Through November and December the plaintiff generally worked between
five and five and a half hours per day, rather than a full eight-hour day. 
During the afternoons, he took time off to attend his physiotherapy and
chiropractic treatments. Following the accident, Key Food continued the
plaintiff’s salary and benefits, and paid him in full for all of the time lost
from work in 2006.

[22]        
On January 12, 2007, Mr. Piper experienced severe pain in his low
back while attempting to shovel snow from his driveway. The plaintiff described
the acute low back pain he experienced that day as “like being knifed in the
back”.   Mr. Piper did not return to work for 10 months following the snow
shoveling incident.

[23]        
On January 22, 2007, Ken Beasley, the general manager of Key Food,
informed Mr. Piper that Key Food was no longer willing to pay his full
salary, and that he would have to claim employment insurance and then long-term
disability benefits if he were unable to return to work before his employment
insurance expired.

[24]        
The following day the plaintiff saw Dr. McGrath. Mr. Piper told Dr.
McGrath that he had been out shoveling snow two weeks earlier, and that his
back was a bit better. However, Dr. McGrath was concerned about the plaintiff’s
mental state. She noted that he was thinking about suicide, counselled him
about depression, and referred him to a psychiatrist, Dr. Elizabeth Luke.  When
Dr. McGrath next saw the plaintiff on January 31, 2007 she noted that mentally,
he was doing a little better, and was no longer suicidal.

[25]        
 On January 30, 2007, the plaintiff, at his employer’s request, entered
into a reimbursement agreement with Key Food, which provided for repayment from
any damage award the plaintiff might obtain of wages and benefits paid by Key
Food to Mr. Piper for time he did not work.

[26]        
From February 5 through May 12, 2007, Mr. Piper received employment
insurance benefits of $423 per week gross ($375 per week net).

[27]        
The plaintiff received long-term disability benefits for the period May
12 through December 16, 2007.

[28]        
On February 4, 2007, Mr. Piper, at his employer’s request, returned
his company pick-up truck to Key Food.  Mr. Piper resented the loss of the
company vehicle and suffered considerable anxiety after his employer terminated
his salary continuance, and insisted that he claim employment insurance and
long-term disability benefits.

[29]        
The plaintiff first saw Dr. Luke on May 9, 2007.  On his first
visit, Mr. Piper complained that he was feeling angry all the time.  Dr. Luke
noted in her clinical records that the plaintiff reported major depression for
his whole life and that he had experienced stress at work prior to the motor
vehicle accident.  She prescribed Efflexor and Resperidine and continued to see
the plaintiff from time to time over the next two years.  On March 31, 2009,
Dr. Luke noted the plaintiff’s mood was then stable, that he was not currently
complaining of depression and had no suicidal ideation.

[30]        
Mr. Piper testified that during the summer of 2007 he concluded that as
a result of his back injury he would not be able to maintain his large garden,
swimming pool and hot tub, or continue to perform repairs and renovations to
the house, and that he and his wife would have to sell their dream home, and
replace it with a property requiring less maintenance.

[31]        
In the fall of 2007, Mr. Piper returned to work on a graduated return to
work program.  On October 3, 2007, Key Food informed the plaintiff that when he
returned, he would occupy a new, non-managerial position as a parts specialist,
and that as a result of a corporate reorganization, it had eliminated his
former position of parts manager.  The gradual return to work program was designed
by the Canadian Back Institute and implemented between November 5 and December
16, 2007 with Mr. Piper’s full cooperation.  In his new position as parts
specialist, the plaintiff’s wages were reduced from $34.75 per hour to $30 per
hour.  Key Food has continued to employ Mr. Piper full time in the
position of parts specialist since December 16, 2007.

[32]        
Mr. Piper’s position as parts specialist involves a combination of sales,
clerical and parts handling functions.  The plaintiff spends about 80% of his
work day sitting at his desk, using a computer and telephone.  He spends the
remaining time handling parts for distribution.  Although prolonged sitting
causes the plaintiff discomfort in his low back, he is able to obtain relief
during the work day by stretching or walking.

[33]        
On August 25, 2008, Key Food restored the plaintiff’s hourly wage rate
to $34.75. Key Food also pays the plaintiff a performance bonus, based on sales
volume.  For 2008, 2009, and 2010, the plaintiff earned respectively $73,767,
$75,327, and $71,223 from his employment in the parts specialist position.

[34]        
On August 28, 2008, the plaintiff and his wife sold their “dream home”. 
They purchased a slightly larger house on a smaller lot where they currently
reside.  The plaintiff maintains that as a result of injuries he suffered in
the August 31, 2006 motor vehicle accident he was compelled to sell his family’s
“dream home”.  He claims real estate commission paid on the sale of his former
home, legal fees, property transfer tax on the purchase of the new home and
moving expenses as special damages. Mr. Piper submits that but for the motor
vehicle accident, he would not have incurred these expenses.

MEDICAL EVIDENCE

[35]        
The expert medical evidence for the plaintiff is limited to the reports
and testimony of Dr. Yu, an orthopaedic surgeon who saw Mr. Piper in July,
2007, and Mr. Paul Peel, the plaintiff’s treating psychologist.  Counsel for
the plaintiff sought an opinion from Mr. Piper’s treating psychiatrist, Dr.
Luke, but was unable to obtain a report prior to her retirement. The plaintiff
did not file an expert report from his family physician, Dr. Francis McGrath.

[36]        
 Although the plaintiff did not tender her as an expert witness, Dr. McGrath
was called to identify portions of her clinical records in which she recorded
particular complaints made by Mr. Piper from time to time, and the
medications and therapies she prescribed for the plaintiff.  Dr. McGrath
confirmed that she had frequent discussions with the plaintiff concerning his
depression from 1999 onward, and that she prescribed the anti-depressant, Efflexor
for several years before the motor vehicle accident.

[37]        
Following her initial treatment of the plaintiff for his motor vehicle
accident injuries on September 5, 2006, Dr. McGrath next saw Mr. Piper on
October 26, 2006.  She noted that his back was improving.  On November 16,
2006, Dr. McGrath noted that Mr. Piper was still in pain though better, and
that he still needed physiotherapy and chiropractic treatment.

[38]        
When Dr. McGrath saw the plaintiff on January 23, 2007, the day after
his employer had discontinued his salary continuance and directed that he claim
employment insurance benefits, she noted that Mr. Piper was thinking about
suicide and that she had “never seen him in a state like this”.

[39]        
On March 5, 2007, Mr. Piper complained to Dr. McGrath that he still had
pain in his knees, low back and wrists.

[40]        
Throughout the time since the August 31, 2006 accident, the plaintiff
has complained to Dr. McGrath of low back and neck pain.  On April 15,
2008, Mr. Piper complained of back pain in the lumbar area.  He was unable to
sit for periods of more than 30 minutes, but found that getting up and walking
provided relief.  On January 20, 2009, the plaintiff told Dr. McGrath that his
neck and back were still sore.  On March 27, 2009, Dr. McGrath noted that
the plaintiff was complaining that his lower back was still sore and there had
been no improvement for one year.  On December 10, 2009, Mr. Piper
complained that sitting was very bad, and that he was still having a lot of
problems with his low back and neck.

Back Pain

[41]        
Dr. William Yu, an orthopaedic surgeon, provided two medical
reports for the plaintiff.  Dr. Yu has practiced orthopaedic surgery since
1974 and is a clinical professor at the Department of Orthopaedics at the
University of British Columbia.  Dr. Yu saw the plaintiff in July 2007. 
He conducted a physical examination, including a neurological examination, and
took the plaintiff’s history.  At the time, Mr. Piper’s main problem was
persistent low back pain.  Mr. Piper also continued to experience neck
pain, with some restriction of movement, and also complained of intermittent
numbness in his hands.

[42]        
Dr. Yu found mild muscle spasms in the plaintiff’s lumbar spine,
tenderness at L5/S1, slightly limited lateral rotation and lateral flexion of
the lumbar spine, and that the plaintiff had weak abdominal and trunk muscles
as a result of deconditioning.

[43]        
Dr. Yu also reported that an MRI of the lumbar spine performed in
May 2007 showed multiple levels of disc degeneration, that he thought that the
spondylolysis at L5 and slight interior displacement of L5 and S1 were likely
pre-existing conditions, and noted Mr. Piper had reported an episode of
left sciatica in 2002 which resulted in him being off work for about a month at
that time.

[44]        
Dr. Yu concluded that Mr. Piper’s present symptoms were due to
mechanical back pain and possibly some mild irritation of nerve root from the spondylolisthesis
at L5/S1 and the bulging disc.  Spondylolisthesis is slippage of the vertebrae,
and can result in compression or impingement of the nerve roots, causing pain. He
noted that the plaintiff was deconditioned and recommended that he receive an
active rehabilitation program for his back.

[45]        
In his direct examination, Dr. Yu explained that mechanical back
pain is non-neurological pain experienced by a patient when the spine is
loaded, for example by sitting for long periods of time or by bending.

[46]        
Dr. Yu provided a second report dated March 4, 2009 after he was
made aware that in January 2007 Mr. Piper complained of experiencing
severe low back pain after shoveling snow from his driveway.  In Dr. Yu’s
opinion, the motor vehicle accident caused Mr. Piper’s low back pain,
which was made much worse after the snow shoveling incident in January 2007.

[47]        
Dr. Yu’s second report also includes these answers to questions put to
him by plaintiff’s counsel:

Did the motor vehicle
accident injuries cause or substantially contribute to the increase in pain
felt by Mr. Piper in January, 2007?

I believe there may be some
contribution.

If Mr. Piper had not been
involved in the subject motor vehicle accident, would he have experienced the
pain, or increase of pain in his low back which he did in January, 2007 and
following?

I
am unable to quantitate this.  Mechanical back pain is frequent in the general
population in individuals with degeneration of the lumbar spine and
spondylolisthesis as in Mr. Piper’s lumbar spine, as seen on MRI.  I believe he
was very deconditioned and also suffering from significant depression for many
years.  These are significant factors in his prolonged disability.

[48]        
In cross-examination, Dr. Yu confirmed that when he took the
plaintiff’s history in July 2007, Mr. Piper had not told him about the January
2007 snow shoveling incident and the accompanying sudden onset of severe pain. 
When pressed in cross-examination, Dr. Yu agreed that if a patient had a
sudden exacerbation in the severity of his back pain that disabled him from
work for the following 10 months, this could be a significant part of the
patient’s history.

[49]        
 Dr. Yu also agreed that in diagnosing soft tissue injuries, a
doctor is heavily reliant on a patient’s subjective complaints and that there
are often few or no objective findings respecting soft tissue injuries.

[50]        
Dr. Yu agreed that his diagnosis of the plaintiff’s injuries was
the same as the diagnosis of Dr. McGraw, the defendant’s expert in
orthopaedic medicine. Specifically, he agreed that Mr. Piper suffered a
grade ll soft tissue injury to his cervical spine, and soft tissue injuries to
his thoracic lumbar spine not associated with neurological impairment or fracture. 
He also agreed that the MRI performed on May 18, 2007 showed multiple level
degenerative disc disease from L3 to S1 and that the plaintiff had degenerative
changes to his cervical, thoracic, and lumbar spine.  While such degenerative
changes can be asymptomatic, Dr. Yu agreed that low back pain is common in
people with degenerative changes.

[51]        
Mr. Piper received chiropractic treatment from Dr. Michael
Titchener for his complaints of low back, mid-thoracic and neck pain from
October 2, 2006 through January 26, 2007.  Throughout that time, the plaintiff
received chiropractic treatments several times a week.  By October 16, 2006,
the plaintiff was reporting some improvement from chiropractic treatment. Mr. Piper
completed a patient assessment form using a scale where zero represented no
improvement and 10 represented total recovery. He rated his progress at seven. 
As a result of his chiropractic treatments, he experienced less pain and
improved flexibility, and found such activities as walking, sitting, standing,
bending and driving easier.  However, his principal complaint continued to be
low back pain, although he also received ongoing treatment for his cervical
spine and mid-thoracic back.  On January 12 and 17, 2007, the plaintiff
reported to Dr. Titchener that snow shoveling had aggravated his lower
back pain.  The plaintiff has not seen Dr. Titchener since April of 2007.

[52]        
Dr. Robert McGraw is a well qualified and experienced expert in
orthopaedic medicine who conducted an independent examination of Mr. Piper
for the defendant on January 15, 2009. Dr. McGraw served as head of the
Department of Orthopaedics at the University of British Columbia for 11 years
and has both practiced and written extensively the field of orthopaedic
medicine. He has testified as an expert witness for both plaintiffs and
defendants.

[53]        
In Dr. McGraw’s opinion, Mr. Piper suffered soft tissue
injuries to his cervical and lumbar spine in the August 31, 2006 motor vehicle
accident which were superimposed on a degenerating spine.

[54]        
Dr. McGraw assumed that the plaintiff had returned to work full time by
December 2006.  According to Dr. McGraw, the fact that the plaintiff was
free of back pain immediately before the accident, and was able to return to
work full time by December 2006 was consistent with the plaintiff having
sustained soft tissue injuries in a motor vehicle accident.  Dr. McGraw thought
that the plaintiff’s recovery of his level of functioning to the point where he
could return to work full time within about 12 weeks of the accident was
consistent with the normal course of recovery from soft tissue injuries to the
back following a motor vehicle accident.

[55]        
I find that Dr. McGraw incorrectly assumed that Mr. Piper had returned
to full time employment by December 2006. In November and December 2006, Mr.
Piper had returned to work on a part time basis only. During those months and
through January 2007, he continued to require time off in the afternoons to
receive physiotherapy and chiropractic treatments for his low back.

[56]        
In Dr. McGraw’s opinion, the plaintiff suffered no permanent disability
as a result of the soft tissue injuries sustained in the August 31, 2006
accident. He attributed the plaintiff’s ongoing symptoms of low back pain to
degenerative changes to his lumbar spine.  Dr. McGraw thought that the
plaintiff would benefit from a program of physical exercise and conditioning
conducted by a kinesiologist.  Weight reduction and conditioning would assist
the plaintiff in managing his ongoing pain.

[57]        
In cross-examination, Dr. McGraw agreed that the plaintiff was
injured in an accident involving high-speed impact and the application of
significant forces to his body. He agreed that amount of time the plaintiff
took off work between the time of the accident and January 12, 2007 was
reasonable for the injuries he sustained in the accident and that Mr. Piper’s
physiotherapy and chiropractic treatments to January 12, 2007 were reasonable
and consistent with the injuries he sustained in the accident.

[58]        
When Dr. McGraw examined Mr. Piper, he found some restrictions
to the range of motion of the plaintiff’s neck and lower back. The plaintiff’s
ability to bend forward was limited and his right and left rotation of the
lumbar spine was limited to approximately 50% of normal. Dr. McGraw found
no evidence of neurological damage. His orthopedic diagnosis was:

1.       Cervical
spine-grade II soft tissue injury not associated with neurological impairment
or fracture.

2.       Thoracolumbar
spine-soft tissue injury not associated with neurological impairment or
fracture.

Cervical Spine

In the motor vehicle accident of
August 31, 2006, Mr. Piper sustained a soft tissue injury not associated
with neurological impairment or fracture.  In the writer’s assessment of
January 15, 2009, Mr. Piper did not volunteer any ongoing complaints
referable to the cervical spine. It is the writer’s opinion that Mr. Piper
has made a satisfactory recovery from the soft tissue injuries that may have
occurred in the neck in the motor vehicle accident of August 31, 2006. The writer
does not anticipate there will be any long-term consequence such as the
development of post-traumatic degenerative osteoarthritis. The writer does not
anticipate there will be any need for surgery for the soft tissue injuries that
may have been experienced by Mr. Piper in the motor vehicle accident of
August 31, 2006.

Lumbar Spine

In the motor vehicle accident of August 31, 2006, Mr. Piper
had complaints referable to the low back. In the writer’s assessment on January
15, 2009, the low back continued to be an ongoing problem. The writer did not
find any neurological signs though Mr. Piper did report occasional
tingling in the left foot. Review of records indicates that this problem was
known prior to the 2006 MVA.

It is the writer’s view that Mr. Piper sustained only
soft tissue injuries to the lumbar spine area in the motor vehicle accident of
August 31, 2006. The soft tissue injuries occurred against a known history of
spondylitic spondylolisthesis at least dating back to December 30, 2002 when Dr. McGrath
ordered a radiograph of the lumbosacral spine which revealed spondylolisthesis
at L5-S1.

On May 18, 2007, Mr. Piper had MRI studies of the
cervical spine, thoracic spine and lumbar spine, all of which showed
degenerative disease.  In the case of the thoracic spine, the radiologist
reported changes that were "disproportionate to the patient’s age".
It is the writer’s opinion that the ongoing lumbar spine complaints (mechanical
back pain without neurological impairment) are related to the pre-accident developmental
and degenerative changes.  It is the writer’s opinion that the soft tissue
injury that may have been experienced in the lumbar spine in the motor vehicle
accident of August 31, 2006 will not lead to post-traumatic degenerative
osteoarthritic changes. It is the writer’s opinion that surgery will not be
necessary for the soft tissue injuries that may have occurred in the lumbar
spine in the motor vehicle accident of August 31, 2006.

…

Snow-Shoveling Incident – January
2007

It is the writer’s opinion that this episode, more probably
than not, was another minor soft tissue injury against a background of
established degenerative disease in the spine. It is the writer’s opinion that
this incident is unlikely to cause any structural change such as fracture or
neurological impairment.

Herniated Intervertebral Disc

The writer is of the opinion that Mr. Piper has not
experienced a herniated intervertebral disc.

[59]        
Dr. McGraw testified that Mr. Piper did not wish to discuss
the snow shoveling incident in any detail and told him there was “nothing to
it". Dr. McGraw explained that the amount of force required to
trigger an exacerbation of pain in a degenerative spine is often trivial.

[60]        
 Dr. McGraw was not prepared to attribute the increased pain and
time off work that Mr. Piper experienced following the snow shoveling
incident of January 12, 2007 to the motor vehicle accident. He noted that the
plaintiff has a history of degenerative changes to his back. In 1998, as a
result of another snow shoveling incident, Mr. Piper experienced three
weeks of pain, and in December 2002, following a martial arts practice, he was
transported to hospital, where he was administered morphine.  Following that incident,
Mr. Piper did not return to work for approximately three weeks.

[61]        
Dr. McGraw explained that spinal degenerative changes are
progressive. In Dr. McGraw’s opinion, in the case of soft tissue injuries of
the type suffered by the plaintiff in the motor vehicle accident, 12 weeks
normally allows someone to get back to their job, although for the next nine to
12 months they will continue to suffer pain, but not enough to prevent them
from working.

[62]        
Dr. McGraw acknowledged that the plaintiff’s symptoms over the 10
months after January 2007 were possibly related to the motor vehicle accident,
but he was not prepared to say that they were probably related to the accident.

[63]        
In cross examination, Dr. McGraw stood by his opinion that the
plaintiff suffered no permanent disability as a result of the motor vehicle
accident. He said that Mr. Piper’s spondylolysis, which causes the
lumbosacral vertebrae to drift forward on the sacrum, was a defect that had
affected the plaintiff’s spine for all of his life, and that Mr. Piper had
degenerative changes at all levels of his spine.

[64]        
 In Dr. McGraw’s opinion, even if the motor vehicle accident had
not occurred, he would expect Mr. Piper to have the complaints of low back
pain that currently afflict him. According to Dr. McGraw, the plaintiff’s
continuing mechanical back pain results from his degenerative condition and was
not caused by the motor vehicle accident.

Depression and Anxiety

[65]        
Paul Peel is a Registered Psychologist who has treated the plaintiff
since February 2007.

[66]        
On September 3, 2008, Mr. Peel recommended a continuing
psychological treatment program to assist Mr. Piper in dealing with his
pain, depression, insomnia and post traumatic anxiety. His plan called for
twice monthly psychological treatment of the plaintiff over a three-year
period. At the time, Mr. Peel developed the treatment plan he was
particularly concerned about Mr. Piper’s suicidal ideation.

[67]        
Mr. Peel also prepared a detailed medico-legal report dated May 12,
2009. The opinions and conclusions contained in his report are based upon his
sessions with the plaintiff between mid-February 2007 and late April 2009, as
well as his considerable clinical experience with the treatment of clients
suffering from pain.

[68]        
Mr. Piper reported to Mr. Peel that following the August 31,
2006 motor vehicle accident he suffered from pain in his upper and lower back,
shoulders and neck, wrists, and knees; fatigue and sleep disruption; profound
levels of depression with suicidal ideation and intrusive images of the
accident.  Dr. McGrath, the plaintiff’s family physician had prescribed
pain medications including Tylenol number three, Celebrex, Zytram, and Tamacet.
Mr. Piper had also been prescribed the anti-depressants Citalopram,
Efflexor, and Nortriptyline for pain and insomnia, as well as other medications
for the treatment of insomnia.

[69]        
In Mr. Peel’s opinion, as a result of the August 31, 2006 motor
vehicle accident, Mr. Piper suffered from a chronic pain disorder, a
chronic anxiety disorder, insomnia and depression. Mr. Peel noted that
despite the plaintiff’s pain and other current disorders he had been able to
resume full-time employment, although he continued to experience ongoing lower
back pain and fatigue. The psychologist noted that from 2007 to 2009 the
plaintiff consistently reported ongoing pain in his lower back that fluctuated
in the moderate range, particularly when Mr. Piper used medications.

[70]        
According to Mr. Peel, Mr. Piper’s prognosis was guarded due
to the interaction of his symptoms of pain and anxiety. Mr. Peel thought
it was highly unlikely that the plaintiff will become symptom-free, although he
might learn to manage his chronic pain condition with further professional
treatment involving cognitive behavioral therapy, mindfulness therapy, and
continuing medical and psychiatric treatment. Mr. Peel reported that as of
April 2009, Mr. Piper’s pain, insomnia, and anxiety interacted with his
depression, which he had under control before the accident. He thought that the
plaintiff would probably have pain and related insomnia for the rest of his
life.

[71]        
Mr. Peel recommended ongoing psychological treatment to assist Mr. Piper
in continuing to adjust to his pain and concurrent psychological disorders,
including depression exacerbated by the August 31, 2006 motor vehicle accident.
In his report of April 2009, Mr. Peel recommended two years of
psychological treatment with mindfulness-based cognitive theory at an estimated
cost of between $13,000 and $15,000. He also recommended consultation with an occupational
therapist for continuing advice respecting the plaintiff’s work, home and
recreational activities. Mr. Peel thought that although Mr. Piper had
a prior depressive disorder, his depression had been "highly
impacted" by the August 31, 2006 accident.

[72]        
In cross-examination, Mr. Peel testified that his opinion
respecting Mr. Piper’s symptoms of pain were based upon a combination of
the plaintiff’s subjective self reporting and his observations of pain
behaviour. However, to a large extent, the psychologist had to rely on the plaintiff’s
self reporting.

[73]        
Mr. Peel also acknowledged that the plaintiff had suffered from
major depression for much of his life. He understood that Mr. Piper’s
depression had been exacerbated by the August 2006 motor vehicle accident.
However, Mr. Peel did not recall receiving information that the plaintiff
had reported experiencing more anxiety and depression related to the demands of
his employment in May and June 2006, or that his anti-depressant medications had
been changed and strengthened prior to the August 2006 accident.

[74]        
Mr. Peel defended his recommendation for long-term cognitive
behaviour therapy for the plaintiff, as opposed to Dr. Vallance’s
recommendation that 10 to 15 sessions would be appropriate, on the ground that Mr. Piper
suffered from multiple interrelated disorders. He also acknowledged that Mr. Piper
may have required cognitive behavioural therapy before the motor vehicle
accident.

[75]        
Dr. Maelor Vallance, a psychiatrist, conducted an independent
examination of Mr. Piper for the defendant in June 2008, and prepared an
expert report dated June 11, 2008. Mr. Piper told Dr. Vallance that
while shoveling snow in January 2007, he developed low back pain to the extent
that he had to come off work altogether.

[76]        
Dr. Vallance diagnosed the plaintiff as suffering from dysthymia, a
chronic low-grade depression subject to exacerbation from time to time. Mr. Piper’s
dysthymia was worse leading up to the accident as a result of work-related
problems. Following the August 31, 2006 accident, his chronic low-grade
depression worsened again. In short, in Dr. Vallance’s opinion the
plaintiff suffered from clinical depression before the accident, for which he
was being treated. After the accident, his depression worsened. In Dr. Vallance’s
opinion, as a result of his difficult background, Mr. Piper carried with
him a reservoir of resentment. When his resentment increased, his depression
was liable to worsen. In cross-examination, Dr. Vallance agreed that the
accident of August 31, 2006 was a major psychiatric event for Mr. Piper.  Dr.
Vallance also identified the loss of the corporate vehicle, the plaintiff’s
demotion in the fall of 2007, and the sale of his home in August 2008 as a
result of his inability to maintain the property to his own high standards as
major stressors for Mr. Piper.

[77]        
Dr. Vallance disagreed with Mr. Peel’s opinion that the plaintiff
suffers from post traumatic stress disorder. According to Dr. Vallance, the
plaintiff displayed none of the features of that disorder.

[78]        
In Dr. Vallance’s opinion, the plaintiff was appropriately treated
for his dysthymia with the medications prescribed first by Dr. McGrath,
and later by his treating psychiatrist. He agreed that a program of cognitive
behavioral therapy would assist Mr. Piper by helping him to change thought
patterns and deal with the stressors in his life.

CREDIBILITY

[79]        
The factors to be considered when assessing credibility were summarized
by Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186,
as follows:

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.); Faryna 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 (Faryna at para. 356).

[80]        
If a plaintiff’s description of changes to his or her physical, mental
or emotional state as a result of the accident is not convincing, then the
hypothesis upon which any expert opinions rest will be undermined: Samuel v.
Chrysler Credit Canada Ltd., 2007 BCCA 431, at paras. 15, 49-50.

[81]        
Mr. Piper’s evidence at trial respecting both his symptoms and his
pre-accident medical history was often materially inconsistent with the
information he had provided to medical practitioners when seeking treatment.  I
recognize that with the passage of time the plaintiff’s ability to recall the
exact sequence of his medical history has likely diminished.  Furthermore, it
is likely that since the automobile accident of August 31, 2006, and while this
litigation has been underway, the plaintiff has focused on that event and has come
to see it as the primary cause of both his physical and psychological
complaints.  I find that the plaintiff was not able to provide an entirely
reliable history of his injuries.  For example, Mr. Piper was only able to
recall one occasion when he experienced significant back pain prior to the
motor vehicle accident.  That was the occasion, on or about December 30, 2002
when he injured his lower back after practising martial arts.  However, the
clinical records show that the plaintiff received chiropractic treatment for
low back pain in 1996 and 1997 and that in addition to the martial arts
incident, Mr. Piper also complained to Dr. McGrath of “sciatica” in July 2003.

[82]        
Mr. Piper is an intelligent man who understood the importance of
providing complete and accurate information about his symptoms and history to
his physicians and other medical care providers in order to receive appropriate
treatment.  Where there are discrepancies between Mr. Piper’s testimony at
trial and the information he provided to medical practitioners at the time of
treatment or diagnosis, I prefer the contemporaneous information he provided to
the medical practitioners.

[83]        
In cross-examination, Mr. Piper repeatedly denied that he had a
history of recurring back pain before the motor vehicle accident.

[84]        
In cross-examination, Mr. Piper was referred to the statement he
gave to ICBC on September 1, 2006 in which he said that he had back and neck
problems before, and the last time he experienced those problems was one and a
half to two years before the motor vehicle accident, when his sciatic nerve
went and he “was flat on his back for three weeks”.

[85]        
Mr. Piper denied that his reference to the “last time” indicated
that he had experienced back or neck problems on more than one occasion before
the August 31, 2006 motor vehicle accident.  When defence counsel referred Mr. Piper
to the clinical record of his attendance at a medical clinic in 1998 for a back
problem, he denied any memory of a back problem at that time.

[86]        
When confronted with the note of his general practitioner recording the
plaintiff’s complaint of sciatica in July 2003, Mr. Piper continued to
maintain that the only time he could recall injuring his back was following a
martial arts practice in or about December 2002.

[87]        
When shown the records of his chiropractor, Dr. Titchener, which
record Mr. Piper complaining of low back pain, and of his neck and back
being “locked up” in 1996, Mr. Piper asserted that he had no recollection
of seeing Dr. Titchener in 1996 and 1997 concerning treatment for low back
pain.  In his direct examination, Mr. Piper had testified that he recalled
seeing Dr. Titchener in 1996 and 1997, and that he believed he had
received treatment for a sore neck at that time.

[88]        
 Following his martial arts injury in 2002, Mr. Piper was
transported to hospital by ambulance, received treatment, including morphine,
and then missed three weeks of work as a result of the low back injury he had
sustained. Nonetheless, he maintained in cross-examination that the martial
arts injury was not serious.

[89]        
Mr. Piper denied that he discontinued martial arts as a result of
his low back pain, and maintained that denial even when confronted with his
evidence on examination for discovery:

239     Q       Just to side track slightly here, you
mentioned martial arts.  When was the last time that you had been involved in
martial arts prior to the motor vehicle accident?

A        Hmm.  About two years, I believe.

240     Q       Okay.

A        Two or three years.

241     Q       And to what extent were you involved
in that activity?

A        I would go to my martial arts classes twice a
week, sometimes on Saturday.

242     Q       And how do you describe these things? 
What level were you at with it?

A        Yellow belt, green stripe.

243     Q       What — where’s that range in the
hierarchy?

A        The lower end.

244     Q       And you discontinued that or what
happened?

A        I had had a foot injury which caused my
sciatic nerve to act up, and one day I was reaching for my cereal bowl off of
the coffee table and my back kind of locked up, and I had to go to hospital in
order to get some pain relievers and so on and so forth. That took about three
weeks for that to heal itself.

245     Q       And how long before the motor vehicle
accident was all this?

A        I don’t know for sure.  I think it’s about
three or four years.

246     Q       Okay.  So that was kind of your
martial arts career?

A        Yeah,
I had stopped it after that, yes.

[90]        
Mr. Piper was also cross-examined about his pre-accident
depression.  Although he denied that he suffered major depression all of his
life, Mr. Piper did acknowledge that Dr. McGrath had treated him for
depression from at least December 1999 to August 31, 2006 and beyond, and that
during that time he suffered from depression at varying levels of intensity.

[91]        
On discovery, Mr. Piper testified that when he suffered from bouts
of depression prior to the motor vehicle accident he would get depressed and
have no energy or motivation.

[92]        
At trial, Mr. Piper maintained that he did not let his depression
affect his work, although manifestly it did so before the accident, when he sought
treatment from Dr. McGrath, and then requested that he be relieved of the
responsibility of managing the service technicians.

[93]        
In cross-examination, Mr. Piper said that he did not believe that Dr. McGrath
asked about his suicidal ideation when he saw her on May 15 and June 14, 2006,
although her clinical records for those dates clearly indicate that she made
such inquiries.

[94]        
Despite the fact that Dr. McGrath inquired about his suicidal
ideation, prescribed the anti-depressant Remeron for the first time on June 26,
2006 and noted that Mr. Piper had reported weight loss, and saw no way out
of his work related problems, Mr. Piper maintained that his depression
preceding the motor vehicle accident was “not terribly bad”, although he was
“fairly angry” at that time.

[95]        
On his examination for discovery of July 24, 2008 at pp. 6-7,
questions 49-50, Mr. Piper testified that in the year before the motor
vehicle accident he was taking Efflexor and Remeron for depression, and that
his medication regime was stable.  At trial, when defence counsel pointed out
that the plaintiff was first prescribed Remeron in June 2006, Mr. Piper
denied that on his discovery he sought to convey the impression that his
depression and medications were stable for a year prior to the motor vehicle
accident.  Mr. Piper said that at the time of the examination for
discovery he believed his answer to be true, and asserted that he had a hard
time recalling dates.

[96]        
When defence counsel suggested to Mr. Piper that if he was unable
to remember the history of his pre-accident depression medications, he was equally
unable to accurately recall his medical history of pre-accident back injuries,
he disagreed.

[97]        
I find that Mr. Piper tended to downplay the severity of his depression
prior to the motor vehicle accident.

[98]        
Mr. Piper was shown a consultation report dated March 31, 2009
prepared by his treating psychiatrist, Dr. Luke, who reported that when
she saw the plaintiff on February 25, 2009 he was not complaining of
depression.  Mr. Piper testified that he did not believe he had a
conversation with Dr. Luke about depression on that occasion. Despite the
fact that Dr. Luke was his treating psychiatrist, and was treating him for
depression, Mr. Piper asserted that unless she asked him a very specific
question, he would not have volunteered information about his depression.
Because Dr. Luke was treating Mr. Piper for depression, it is consistent with
the probabilities of the situation at that time that Dr. Luke inquired about
his depression, and then made an accurate note of what Mr. Piper told her.

[99]        
Mr. Piper also minimized the significance of the snow shoveling
incident by claiming it was of no great concern to him despite the fact that it
produced excruciating pain in his low back and was followed by a period of 10
months during which he was disabled from work. On his discovery, Mr. Piper
identified the snow shoveling incident of January 12, 2007 as an event where he
injured his back, and said that “from there on I was off work for I believe it
was about ten months”. Although the plaintiff asserted that on discovery
defence counsel had badgered him, and examined him unfairly about the snow shoveling
incident, he was unable to identify a single question that he thought was
unfair.  I should say that there is nothing in the transcript that lends any
credence to Mr. Piper’s complaint respecting defence counsel’s conduct of
his examination for discovery.

[100]     Mr. Piper
informed Dr. Vallance that he had injured his back while shoveling snow in
January 2007. Also, during his functional capacity evaluation of Mr. Pakulak,
Mr. Piper reported a severe flare-up in his low back pain while shoveling
snow in January 2007, followed by 10 months absence from work.

[101]     The
plaintiff did further damage to his credibility when he denied that he understood
that the patient progress assessments he completed for Dr. Titchener on
October 16 and November 14, 2006 included a zero to 10 scale that measured his
recovery, rather than the degree of pain he was suffering.  In
cross-examination, Mr. Piper agreed that he read and understood all of the
other portions of the form, but was unsure whether he had read the instructions
for completing the scale, which he marked with a four on the first assessment
and a seven on the November 14, 2006 assessment.  When he marked “seven” on the
November 14, 2006 form, Mr. Piper claimed that he understood that this was
a seven on his pain scale and that he felt worse on that date than when he had
completed the first patient progress assessment the month before.  Mr. Piper’s
testimony is belied by the fact that he identified more areas of improvement on
the November 14, 2006 form than he did on the earlier form, and that on the
November 14, 2006 form he identified “less pain” as one of the changes since he
began chiropractic treatment.

[102]     Although Mr. Piper
claimed that his condition had worsened between October 16 and November 14,
2006, the physiotherapy records for the same period show that between October
20, 2006 and November 28, 2006, Mr. Piper reported that he was improving
on most visits.

[103]     On October
26, 2006, his general practitioner, Dr. McGrath, noted that Mr. Piper
was reporting that his back had improved.  On November 16, 2006, Dr. McGrath
made a notation “still pain though better”.  Mr. Piper agreed that he told
the doctor that he still had pain but probably told her he was better.

[104]     Despite
acknowledging that he had informed his physiotherapist, his family doctor and Dr. Titchener
that his back was improving through October and November of 2006, Mr. Piper
continued to deny that when he completed the patient progress assessment of
November 14, 2006 by rating himself at “seven” on the recovery status, he
understood and meant to say that his low back was seven-tenths of the way
toward total recovery.

[105]     Mr. Piper
testified that he had no recollection of seeing Dr. McGraw, the
orthopaedic surgeon who conducted an independent medical examination of him for
the defendant in January 2009. Because Mr. Piper maintained that he had no
memory of Dr. McGraw, he refused to comment on the accuracy of Dr. McGraw’s
statement in his report of January 15, 2009 that “Mr. Piper did not
volunteer any ongoing complaints referable to the cervical spine”.  I find that
Mr. Piper’s denial of any recollection of his examination by Dr. McGraw
is not credible.  The plaintiff had no difficulty in remembering other doctors
and therapists involved in the assessment or treatment of his injuries.  An
examination by a medical expert retained on behalf of the opposing party in
litigation where the plaintiff claims to have sustained serious injuries is a
significant event, and one that it is more probable than not that the plaintiff
would recall.

[106]     The fact
that the plaintiff is not an entirely reliable historian of his injuries
complicates the determination of causation and the assessment of damages in
this case.

Causation

The Plaintiff’s Position

[107]     The
plaintiff contends that the motor vehicle accident of August 31, 2006 caused or
contributed to his ongoing neck and back pain.  Mr. Piper says that the
pre-existing degenerative condition of his spine had been asymptomatic for some
time prior to the accident.  The plaintiff also contends that the motor vehicle
accident caused a severe exacerbation of his pre-existing depression and also
caused him to suffer from post-traumatic stress disorder and post-traumatic
anxiety, which were not pre-existing conditions.

The Defendant’s Position

[108]     The
defendant admits that the August 31, 2006 motor vehicle accident caused the
plaintiff to suffer a moderate low back soft tissue injury and temporarily
exacerbated Mr. Piper’s pre-existing chronic depression.  The defendant
says that the plaintiff had largely recovered from the physical injuries he
sustained in the motor vehicle accident by late 2006.  According to the
defendant, any ongoing back symptoms suffered by Mr. Piper after late 2006
result from the snow shoveling incident of January 12, 2007 and the
pre-existing degeneration of his spine.  The defendant submits that the pain
and discomfort resulting from the plaintiff’s degenerative condition would have
occurred in any event.

[109]     The
defendant also admits that the plaintiff’s pre-existing depression was
exacerbated by the motor vehicle accident but submits that by June 2008, when Mr. Piper
was examined by Dr. Vallance, his depression had improved to a level
similar to the depression he was experiencing prior to the August 31, 2006
motor vehicle accident.

The Law

[110]    
In Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333 at paras. 21-23,
the Supreme Court of Canada stated the test for causation:

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

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

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

[111]    
As the Supreme Court of Canada explained in Athey v. Leonati,
[1996] 3 S.C.R. 458 at para. 17:

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

[Emphasis
in original.]

[112]    
Causation must be established on a balance of probabilities before
damages are assessed. As McLachlin, C.J.C. stated in Blackwater v. Plint,
2005 SCC 58 at para. 78:

Even
though there may be several tortious and non-tortious causes of injury, so long
as the defendant’s act is a cause of the plaintiff’s damage, the defendant is
fully liable for that damage. The rules of damages then consider what the
original position of the plaintiff would have been.  The governing
principle is that the defendant need not put the plaintiff in a better position
than his original position and should not compensate the plaintiff for any
damages he would have suffered anyway: [Athey v. Leonati].

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

[114]     In Bradley
v. Groves, 2010 BCCA 361, at para. 20, the court explained that
divisible injuries are those capable of being separated out and having their
damages assessed independently while indivisible injuries are those that cannot
be separated or have liability attributed to the constituent causes.

Discussion

  Physical Injuries

[115]     If the
more intense and persistent low back pain that Mr. Piper has experienced since
January 2007 was caused or contributed to by the negligence of the defendant
Hassan, the plaintiff is entitled to recover all of the damages attributable to
that injury from the defendant, regardless of whether other non tortious causes
also contributed to his injury.  Thus, if the August 31, 2006 motor vehicle
accident caused or contributed to the exacerbation of the plaintiff’s
mechanical low back pain that occurred in January 2007, the defendant is liable
for the plaintiff’s damages.

[116]     Drs. Yu
and McGraw agree and I find that Mr. Piper suffered moderate soft tissue
injuries to his cervical and lumbar spine as a result of the August 31, 2006
motor vehicle accident, and that Mr. Piper experienced symptoms of mechanical
back pain, but no fracture or neurological damage to his spine.

[117]     I also
find that as a result of the August 31, 2006 motor vehicle accident the
plaintiff suffered moderate soft tissue injuries superimposed on a degenerating
spine.

[118]     I find
that at the time of the motor vehicle accident, Mr. Piper had a pre-existing
condition of degenerative change to his spine.  Radiological imaging performed
on December 30, 2002 revealed spondylolysis at L5/S1. At that time, the disc
spaces were normal.  However, the full spine MRI performed in May 2007 showed degenerative
changes at all levels.  The radiologist reported narrowing of the
intervertebral disc spaces and degenerative disc disease at multiple levels of
the lumbar spine.  The radiological studies support Dr. McGraw’s opinion, which
I accept, that the plaintiff suffers from a progressive, pre-existing
degenerative condition affecting all levels of his spine, and particularly the
lumbo-thoracic spine.

[119]     Although Mr.
Piper’s low back had been asymptomatic for approximately three years prior to
the August 31, 2006 motor vehicle accident, he had experienced significant low
back pain on several occasions.  On July 9, 2003, he complained to Dr. McGrath of
sciatica.  In December 2002, Mr. Piper suffered severe low back pain after performing
martial arts.  On that occasion, he was taken by ambulance to a hospital for
emergency medical treatment, was prescribed morphine for pain relief and missed
three weeks of work.  In 1996 and 1997, he received chiropractic treatment from
Dr. Titchener for complaints, including neck and low back pain and in December
1998, he attended a medical clinic for mechanical low back pain after shoveling
snow.

[120]     I find
that the plaintiff was well on the way to recovery from the soft tissue
injuries to his low back and neck he suffered in the motor vehicle accident
when he experienced severe low back pain while shoveling snow on January 12,
2007.  Mr. Piper had recovered to the point where he was able to return to
work part time.  Through October, November and December, he reported to Dr.
McGrath, Dr. Titchener and his physiotherapist that his low back was
improving.

[121]     I find
that since January 12, 2007 the plaintiff has experienced more severe and persistent
mechanical low back pain, which disabled him from work for 10 months, and which
continues to cause him discomfort.

[122]     I must
still consider whether the automobile accident was a cause of the plaintiff’s
ongoing and more severe mechanical low back pain.  The injuries from the motor
vehicle accident had not fully healed by January 12, 2007.  Through December
and into January 2007, the plaintiff continued to require physiotherapy and
chiropractic treatment for his low back and neck complaints.  Mr. Piper was
still healing from the injuries sustained in the motor vehicle accident.

[123]      Causation
need not be proved with scientific precision.  In Snell v. Farrell,
[1990] 2 S.C.R. 311 at p. 328, Sopinka J. cited with approval the statement of
Lord Salmon in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475 at p.
490 that causation is “essentially a practical question of fact which can best
be answered by ordinary common sense.”  As the court held in Athey at
para. 16, “[a]lthough the burden of proof remains with the plaintiff, in some
circumstances an inference of causation may be drawn from the evidence without
positive scientific proof”.  Here, the plaintiff says it makes sense to infer
from the fact that Mr. Piper sustained his injury in a collision involving the
application of considerable force to his low back and neck and had not fully
recovered from those injuries by January 2007, that the motor vehicle accident
was a material contributing factor to his ongoing complaints of low back and
neck pain.

[124]     I cannot draw
that inference without also considering the medical evidence.

[125]      Dr. Yu
was only prepared to say that the motor vehicle accident might have contributed
to the increased pain experienced by Mr. Piper in January 2007.  Although Dr.
McGraw acknowledged that it was possible that the motor vehicle accident was
related to the plaintiff’s symptoms over the 10 months from January to November
2007 that he was disabled from returning to work, he was not prepared to agree
that those symptoms were probably related to the motor vehicle accident.

[126]     I prefer
Dr. McGraw’s opinion to that of Dr. Yu concerning the relationship between the
motor vehicle accident and Mr. Piper’s ongoing symptoms after January 2007.  When
Dr. Yu prepared his first opinion, he was unaware that Mr. Piper’s low back
symptoms had increased significantly in January 2007 because Mr. Piper did not
tell him about the snow shoveling incident.  After Dr. Yu was made aware of
that event, he thought that the motor vehicle accident injury might have contributed
to the plaintiff’s increased level of pain.   Dr. McGraw stood by his opinion
that the plaintiff would have experienced low back pain as a result of the
progressive degeneration of his spine even if the August 31, 2006 accident had
not occurred   Dr. Yu has not contradicted that opinion.  He was unable to
quantify the risk that the plaintiff would have suffered increased pain after
January 7, 2007 if the motor vehicle accident had not occurred.  However, he
did offer the opinion that mechanical back pain is frequent among individuals
in the general population who, like Mr. Piper, have degeneration of the lumbar
spine and spondylolithesis.

[127]     As Dr.
McGraw noted, the plaintiff’s spinal degenerative changes are progressive, and
the amount of force required to trigger the exacerbation of pain in a
degenerative spine is often trivial. Mr. Piper experienced the immediate onset
of excruciating low back pain when he attempted to shovel snow on January 12,
2007. On the balance of probabilities, I find that the snow shoveling incident
triggered the onset of the persistent mechanical back pain which continues to
trouble Mr. Piper, and that this was and is a manifestation of his pre-existing
degenerative condition, not attributable to the motor vehicle accident.

[128]     I find that
the plaintiff has not met his burden of proving on the balance of probabilities
that but for the motor vehicle accident, he would not have suffered his current
low back pain.  I find that the motor vehicle accident did not cause or
materially contribute to the symptoms of severe and persistent low back pain
experienced by the plaintiff during the 10 months following the snow shoveling
incident of January 2007, or to his continuing complaints of mechanical back
pain.  Any contribution of the motor vehicle accident to the plaintiff’s
symptoms after January 12, 2007 did not fall outside the de minimis
range. I find that the increase in the plaintiff’s low back pain in January
2007 and his ongoing symptoms of mechanical low back pain were the result of
the pre-existing and progressive degenerative changes to the plaintiff’s lumbar
spine, rather than the motor vehicle accident of August 31, 2006.

[129]     I find
that the plaintiff also sustained contusions to his wrists and knees as a
result of the collision.  The injuries to the plaintiff’s knees resolved within
six to eight months of the motor vehicle accident. Although the soft tissue
injuries to the plaintiff’s wrists occasionally troubled him if he worked
extensively with his hands, they produced no functional impairment.

Depression

[130]     I find
that the plaintiff had a pre-existing history of chronic depression which
fluctuated in severity depending upon the stressors affecting him.  He
experienced severe symptoms of depression following the 1996 fatal motor
vehicle accident.  As a result of work-related stress, the plaintiff had been
experiencing increased anxiety for about eight months before he saw Dr. McGrath
in May 2006. She was sufficiently concerned about the severity of the plaintiff’s
depression at that time to inquire whether he was suicidal.  Dr. McGrath
changed Mr. Piper’s medication for depression in June 2006, increasing his
dosage of Efflexor and adding Remeron.

[131]     Since the
August 31, 2006 motor vehicle accident, Mr. Piper has experienced
additional stressors unrelated to the motor vehicle accident, including his
wife’s temporary loss of her employment in February 2007, and his diagnosis in
2010 for diabetes.

[132]    
Dr. Vallance described the effect of the motor vehicle accident in temporarily
exacerbating the plaintiff’s pre-existing depression in these terms:

In short, Mr. Piper, a
recovering alcoholic, has a long standing problem with low-grade depression
described as dysthymia and worsening at times of stress.  His depression
worsened with more obvious clinical depression prior to the accident and likely
also some degree of worsening following the accident when he had to deal with
pain and the frustrating limitations in his physical functioning, together with
financial pressures and then a change in his work status.  These factors
increased his reservoir of anger and it is that anger that has fueled his
depression.

Currently
his depression is likely at a level similar to the depression he was
experiencing in the months leading up to the accident of August 31, 2006 and in
reaction to the problems in the workplace.  I doubt that it will improve much
further until his anger lessens and that is not likely to happen while the litigation
is ongoing.  Only then will he make a better emotional adjustment to such
residual physical problems as he may have.  Clearly it would be in his interest
to have the litigation concluded as rapidly as is reasonable.

[133]     Dr.
Vallance based his opinion on the role of the August 31, 2006 MVA in
temporarily exacerbating Mr. Piper’s pre-existing depression on a careful
review of the plaintiff’s psychiatric history before and after the accident.  I
prefer Dr. Vallance’s opinion to that of Mr. Peel who gives little
consideration to the significant depression experienced by Mr. Piper
following his 1996 accident.  Mr. Peel was also apparently unaware of the
history of Mr. Piper’s pre-accident work-related depression, or that his
anti-depressant medications had been increased before the motor vehicle
accident.  That further diminishes the weight I attach to Mr. Peel’s opinion.

[134]     Mr. Piper
acknowledged that his depression has improved.  In cross-examination, he
described the level of his pre-motor vehicle accident depression at two to
three out of 10 and said that at the time of trial it was at three out of 10.  Mr. Piper
did not disagree with Dr. Vallance’s opinion that his depression is now at
a level comparable to his condition prior to August 31, 2006.

[135]      I accept Dr. Vallance’s
opinion and find that Mr. Piper’s depression was exacerbated by the motor
vehicle accident but had settled to its pre-accident level by the time of his
examination of the plaintiff in June 2008.  Although Mr. Peel suggested that
Mr. Piper might have features of post-traumatic stress disorder, Dr. Vallance
found nothing in the plaintiff’s history to support that diagnosis. In light of
Dr. Vallance’s more careful attention to the history of the plaintiff’s
symptoms, I prefer his opinion to Mr. Peel’s. The plaintiff has not established
on the balance of probabilities that he suffers from post traumatic stress
disorder as a result of the motor vehicle accident, or at all.

DAMAGES

Non-Pecuniary Damages

[136]     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, with fairness 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: Trites v.
Penner, 2010 BCSC 882 at paras. 188-189.

[137]    
 In
Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined the
factors to be considered when assessing non-pecuniary damages at para. 46:

 The inexhaustive list of common factors cited in
Boyd 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 plaintiff’s stoicism (as a
factor that should not, generally speaking, penalize the plaintiff: Giang
v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[138]    
I also bear in mind the caution expressed by McEachern C.J. in Price
v. Kostryba (1986), 70 B.C.L.R. 397 (S.C.) that when assessing damages for
personal injuries based on a plaintiff’s subjective complaints the court must
exercise care where there is little or no objective evidence of continuing
injury and where complaints of pain persist beyond the normal period for
recovery.

[139]     Immediately
before the August 31, 2006 motor vehicle accident, the plaintiff’s back and
neck were asymptomatic.  While Mr. Piper was taking medication for depression,
the level of stress at work had been reduced, and his ability to cope with his work
had improved since July 2006, when he had been reassigned to the position of
parts manager.

[140]     The
plaintiff’s pre-accident recreational activities included playing golf occasionally
and regularly riding his motorcycle. The soft tissue injuries sustained by the
plaintiff in the motor vehicle accident prevented him from engaging in those
past times from September 2006 through January 2007.

[141]     The
plaintiff also devoted substantial time and effort to the care and maintenance
of his home, in which he took particular pride. Following the accident, Mr. Piper’s
low back pain prevented him from maintaining the swimming pool, hot tub, and
gardens to the standard he had formerly achieved, and also interfered with his
ability to perform home renovation projects.  Mechanical low back pain
attributable to the motor vehicle accident also disabled the plaintiff from
work during most of the month of October 2006.  Although his condition improved
through November and December, he had not yet returned to work on a full time
basis when he re-injured his back while shoveling snow on January 12, 2007.

[142]     The motor
vehicle accident also exacerbated the plaintiff’s pre-existing depression.  Mr.
Piper’s evidence that his level of depression increased following the motor
vehicle accident, that he experienced anger and frustration, and became
lethargic and withdrew from social contacts, both at home and in the workplace,
is supported by the testimony of his wife and his fellow employees.

[143]     The
plaintiff’s depression worsened in November 2007 when he was demoted from the
position of parts manager to parts sales specialist.  Mr. Piper regarded his
position as a manager with Key Food as a measure of his self worth. When he was
demoted to the position of parts sales leader he experienced a loss of
self-esteem. He was depressed by the demotion and angered by the reduction in
his salary and the loss of the use of the corporate vehicle.

[144]     I have
found that by June 2008, when Dr. Vallance examined him, the plaintiff’s depression
had settled to a level similar to his depression before the motor vehicle
accident.  The defendant’s negligence caused or contributed to an exacerbation
of the plaintiff’s depression for a period of about 21 months.  The plaintiff’s
depression, lethargy and loss of libido also imposed strains on his marriage
during that time.

[145]      On his July
2008 discovery, Mr. Piper testified that his mid back had been pain free
for four or five months. I find that by early 2008, the plaintiff’s mid back
injuries were resolved.

[146]     I find
that the soft tissue injuries to the plaintiff’s cervical spine were also
largely resolved by December 2008. During his vocational assessment by Mr. Pakulak
on December 23, 2008, Mr. Piper rated his neck pain at 1 on a scale of 1
to 10 where 0 is pain free and 10 is the most extreme pain. He also reported
his highest and lowest levels of neck pain over the previous 30 days at 2 and
1.

[147]      On
January 15, 2009, when Dr. McGraw conducted his examination of the
plaintiff, he noted that Mr. Piper did not volunteer any ongoing
complaints referable to the cervical spine. I find that Dr. McGraw
accurately recorded the information he obtained from Mr. Piper during his
examination, and accept his opinion that the soft tissue injuries to the
plaintiff’s neck were largely resolved by the time he examined Mr. Piper
in January 2009.

[148]     The
plaintiff submits that an award of non-pecuniary damages of $110,000 is
appropriate in this case.  Counsel for the plaintiff referred the Court to Barnes
v. Richardson, 2008 BCSC 1349, Penner v. Silk, 2009 BCSC 1682, Shapiro
v. Dailey, 2010 BCSC 770, Zen v. Redhead, 2011 BCSC 190 and Bouchard
v. Brown Bros. Motor Lease Canada Ltd., 2011 BCSC 762.

[149]     The
plaintiff argues that Penner v. Silk is closest on its facts to this
case. In Penner, the plaintiff was a 51-year-old general service manager
of an automotive dealership who suffered soft tissue injuries to his left knee
and low back, and significant depression as a result of a motor vehicle
accident.  The court found that the plaintiff’s injuries prevented him from
carrying out home repair and maintenance projects and that five years after the
accident the injury to his left knee, together with his depression, continued
to have a major impact on the plaintiff’s domestic, social and recreational
life.  The court assessed non-pecuniary damages of $100,000 which it reduced to
$80,000 for failure to mitigate.  In Penner, unlike the instant case,
the plaintiff had no history of pre-existing chronic depression or any
pre-existing degenerative physical condition.

[150]     The
defendant submits that an appropriate award of non-pecuniary damages for the
plaintiff’s moderate soft tissue injuries attributable to the motor vehicle accident,
and for the temporary exacerbation of his pre-existing depression is in the
range of $30,000 to $40,000. Counsel for the defendant referred to Boiselle
v. McKenna, 2002 BCSC 1150, Chetal v. Honig, 2007 BCSC 1464, Hubbard
v. Saunders, 2008 BCSC 486, Kandag v. DiVora, 2007 BCSC 717 and McCreight
v. Currie, 2007 BCSC 197.  In Hubbard v. Saunders, a 37-year-old
female plaintiff with a pre-existing history of back pain and depression
claimed damages for injuries suffered in a motor vehicle accident, including
neck and lower back pain and a significant onset of depression.  Based on a
finding of 18 months mild to moderate neck, shoulder and lower back pain with
occasional ongoing flare-ups and depressive symptoms over a similar period, the
Court awarded non-pecuniary damages of $45,000.

[151]     Here, Mr.
Piper experienced a temporary but severe exacerbation of his pre-existing
depression.  By the time Dr. Vallance saw him, some 21 months after the motor
vehicle accident, his dysthymia had returned to its pre-accident level.  His
elevated depression was more serious and lasted about three months longer than
that of the plaintiff in Hubbard v. Saunders.  Mr. Piper
also suffered moderate soft tissue injuries to his low back and neck which
prevented him from working for most of October 2006, caused him considerable
pain and discomfort, interfered with his gardening and home maintenance
activities and disrupted his sleep.  I also take into account the soft tissue
injuries to his wrists, knees and mid-back, all of which were relatively minor,
and resolved unremarkably.

[152]     The
assessment of non-pecuniary damages depends on the particular circumstances of
the plaintiff in each case.  Taking into account Mr. Piper’s age, the severity
and duration of the injuries attributable to the motor vehicle accident, their
impact on his recreational activities, the significant exacerbation of his
depression, and its impact on his marital and social relationships, I find the
appropriate award of non-pecuniary damages for Mr. Piper in all of the
circumstances is $50,000.

Past Loss of Earning Capacity

[153]     The
assessment of damages for past loss of income is properly characterized as an
assessment of damages for loss of past earning capacity: Lines v. W & D.
Logging Co. Ltd., 2009 BCCA 106 at para. 153, leave to appeal ref’d 
[2009] S.C.C.A. No. 197, (S.C.C.).

[154]     Compensation
for past loss of earning capacity is to be based on what the plaintiff would
have, not could have, earned but for the injury caused by the defendant’s
negligence:  Rowe v. Bobell Express Ltd., 2005 BCCA 141; M.B. v.
British Columbia, 2003 SCC 53.

[155]     Pursuant
to s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231,
a plaintiff is entitled to recover damages for only his or her past net income
loss.  This means that in the ordinary course the court must deduct the
amount of income tax payable from lost gross earnings: Hudniuk v. Warkentin
(2003), 9 B.C.L.R. (4th) 324.

[156]     The burden
of proof of actual past events is a balance of probabilities. An assessment of
loss of both past and future earning capacity involves consideration of
hypothetical events. The plaintiff is not required to prove these hypothetical
events on a balance of probabilities. The future or hypothetical possibility
will be taken into consideration as long as it is a real and substantial
possibility and not mere speculation: Athey v. Leonati, at para. 27.

[157]     As a
result of the defendant’s negligence, the plaintiff was unable to work for a
total of 262 hours between September 19 and December 31, 2006.  In addition,
the plaintiff missed another 30 hours of week between January 1 and 12, 2007 as
a result of the motor vehicle accident.

[158]     Key Food
paid the plaintiff for all of his time lost between the time of the motor
vehicle accident and February 2, 2007.

[159]     The
defendant submits that the plaintiff has suffered no loss for the time paid between
the motor vehicle accident and February 2, 2007 and therefore is not entitled
to recover any damages for past loss of earning capacity during that period.

[160]    
In consideration for Key Food continuing his salary after August 31,
2006, Mr. Piper entered into a reimbursement agreement with his employer
dated January 30, 2007 which contained the following provisions relevant to
this claim:

1.       Piper agrees to take
all reasonable steps to recover from any other person from whom Piper may be
able to recover damages as a result of the Accident, including ICBC or its
insured motorist (the "Third Party") the Benefits which Key Food has
paid or will in the future pay to Piper relating to absences as a result of the
Accident.

2.       If Piper is able to
recover such Benefits from the Third Party, Piper will repay Key Food the
amount paid to him or on his behalf by Key Food for the Benefits.

3.       If Piper abandons any
claim he may have against the Third Party without the prior written consent of
Key Food or fails to recover damages from a Third Party, he will remain
responsible for repaying the amount of Benefits and such repayment obligations
will occur immediately upon his abandonment of or the dismissal of his claim.

…

6.       Piper
hereby irrevocably authorizes, instructs and directs any lawyer who acts for
Piper to pay Key Food the full amount of the Benefit out of any settlement
payments received on Piper’s behalf.

[161]     By the
reimbursement agreement, Mr. Piper has incurred a liability in debt  to his
employer for the amounts paid to him by Key Food for time lost from work as a
result of the motor vehicle accident.  But for the defendant’s negligence, the
plaintiff would not have incurred that liability.  In these circumstances, it
cannot be said that the plaintiff has suffered no loss.

[162]     I would
allow the plaintiff’s claim for past loss of income for the period August 31,
2006 through January 12, 2007.

[163]      I would
assess the amount of that loss as follows:

[164]    
It is necessary to determine the plaintiff’s net loss.  Mr. Piper’s
employment income in 2006 was $74,354.  On that amount he paid income tax of
$15,663.96, and CPP and Employment Insurance premiums of $1,910.70 and $729.30
respectively, for a total of $18,303.96.  That represents 25% of the
plaintiff’s gross annual income, rounded to the nearest percentage point.  The
net amount of the plaintiff’s loss is $10,147.00 x  75% = $7,610.25.

[165]     Accordingly,
I find that the plaintiff is entitled to recover damages for past loss of
earning capacity in the amount of $7,610.25.

[166]     Any past
loss of earning capacity suffered by the plaintiff after January 12, 2007 was
caused by his pre-existing degenerative condition rather than the motor vehicle
accident.  Accordingly, I make no additional award of damages under this head
for the period between mid January 2007 and the date of trial.

[167]     The
plaintiff’s demotion from his former position of parts manager to the newly
created position of parts specialist in October 2007 was unrelated to the motor
vehicle accident.  Key Food never filled the parts manager position after Mr.
Piper was injured in the motor vehicle accident.  During Mr. Piper’s absence,
the new general manager, Mr. Ken Beasley, determined, as part of his
restructuring of Key Food’s management, that the parts manager position was
redundant.  At trial, Mr. Beasley testified that Key Food intended to hire
a director of parts with specialized training in inventory management, who
would oversee the supply of parts to all of Key Food’s branches. Since the
plaintiff returned to full-time employment in the parts specialist position in
December 2007, Key Food has implemented a performance bonus for his position
and has raised his hourly rate to the same level he enjoyed as parts manager.
As both Mr. Beasley and Mr. Choquette, the president of Key Food testified, the
company regards the plaintiff as a valued employee, and intends to continue to
make use of his skills.

Loss of Future Earning Capacity

[168]     The
plaintiff claims for loss of future earning capacity.  Although Mr. Piper
continues to be employed by Key Food, he submits that he continues to suffer
from low back pain that limits his earning capacity and that in the event he
were to lose his present position he would be hard-pressed to replace it with
comparable employment.  I have found that the motor vehicle accident did not
cause or contribute to the plaintiff’s ongoing symptoms of mechanical back
pain.  Any loss of future earning capacity does not result from the defendant’s
negligence, but from the plaintiff’s pre-existing medical condition. 
Accordingly, I make no award for loss of future earning capacity.

Cost of
Future Care

[169]      Mr. Pakulak
concluded his functional capacity evaluation report by recommending that the
plaintiff have the assistance of a kinesiologist to develop regular home and
pool exercise programs and that the plaintiff would benefit from a pool pass
for continued conditioning, and an ergonomic chair for work.  However, because
the ongoing  symptoms of mechanical back pain these recommendations are designed
to alleviate result from degenerative changes to the plaintiff’s spine
unrelated to the defendant’s negligence, I cannot order the defendant to bear
the costs of these items. Similarly, I have found that by June 2008 the
plaintiff’s dysthymia had settled to its pre-accident level. The defendant is
not responsible for the cost of any future counselling that the plaintiff may
require for assistance in managing his pre-existing chronic depression.
Accordingly, I make no award for costs of future care.

Special Damages

[170]      An
injured person is entitled to recover reasonable out-of-pocket expenses
incurred as a result of an accident, in order to restore the claimant to the
position he or she would have been in had the accident not occurred: X. v.
Y., 2011 BCSC 944 at para. 281; Milina v. Bartsch at p. 78.

[171]     The
plaintiff incurred expenses of $905 for physiotherapy and $1,520 for
chiropractic treatment for injuries suffered in the motor vehicle accident. 
Mr. Piper is entitled to recover those amounts. Mr. Piper is also entitled to
his reasonable out of pocket expenses for medications prescribed for the
treatment of physical and psychological injuries resulting from the motor
vehicle accident.  I would allow $700 for prescription medications.

[172]     Mr. Piper
also paid $1,975 for the full spine MRI performed May 18, 2007. The defendant
submits this was an unnecessary expense. I disagree.  Dr. McGrath had
recommended an MRI study. At a time when the plaintiff was experiencing
increased back pain and sought medical advice to determine its cause and
possible treatment, it was not unreasonable for him to pay for a private MRI,
rather than wait in line for publicly funded radiology. The full spine MRI assisted
both Dr. Yu and Dr. McGraw in their diagnoses of the extent of the
plaintiff’s injuries attributable to the motor vehicle accident, showed the
progression of degenerative changes to the plaintiff’s spine, and aided Dr.
McGraw in forming his opinion that the plaintiff had not suffered a disc
herniation. I find that the plaintiff is entitled to recover $1,975 for the MRI
study.

[173]     The
plaintiff has claimed $11,200 for psychotherapy, at $280 per 2 hour session.  Mr.
Peel testified that Mr. Piper would likely have needed psychotherapy for his
pre-existing depression in any event.  Dr. Vallance opined that Mr. Piper
required 10 to 15 sessions of psychotherapy for the treatment of his
exacerbated depression related to the motor vehicle accident.  I would allow $
4,200 for 15 sessions.

[174]     I would
also allow the amounts claimed for fees paid to physicians to complete
insurance forms, and for the tensor back, and gym pass, in the total amount of
$347.98.  These items were medically recommended for the treatment of injuries
sustained by the plaintiff in the motor vehicle accident and were beneficial to
him.  I have disallowed the expenses claimed for the tens unit, treadmill and
fitness training because these items were acquired when the plaintiff’s
symptoms of ongoing low back pain were the result of his degenerative
condition, rather than the defendant’s negligence.

[175]     In
addition, I would allow the amount claimed of $1,750.35 for the recliner chair,
which assisted the plaintiff in coping with his disturbed sleep following the
motor vehicle accident.

[176]     Mr. Piper
has claimed a total of $2,216.88 for mileage in attending medical,
psychotherapy, physiotherapy and chiropractic treatments and appointments. 
Some of the mileage claimed relates to travel for counselling sessions and
medical attendances unrelated to the August 31, 2006 motor vehicle accident.  I
would allow the plaintiff $1,000 for mileage reasonably incurred as a result of
the motor vehicle accident.

[177]     The
plaintiff claims that as a result of the injuries he suffered in the August
2006 motor vehicle accident, he was no longer able to maintain his home in
Surrey and was compelled to sell it. Mr. Piper claims special damages in
the amounts of $22,181.26 and $1,596.92 respectively for real estate
commissions and legal fees and disbursements incurred on the sale of his former
family home.  In addition, the plaintiff claims $10,750 for property transfer
tax on the purchase of his new home, $4,016.25 for moving costs and $7,175 for
home maintenance work that he says that but for the injuries he suffered in the
motor vehicle accident, he would have performed himself.

[178]     I have
found that the plaintiff did not suffer any permanently disabling injury as a
result of the motor vehicle accident, and that increased mechanical low back
pain of which the plaintiff complained after January 2007 was caused by his
pre-existing degenerative condition rather than the motor vehicle accident.  To
the extent that the plaintiff’s ongoing symptoms of mechanical low back pain
were a factor in his decision to sell the family dream home, the motor vehicle
accident was not a cause of those symptoms, either at the time Mr. Piper made
the decision in the summer of 2007, or when he moved homes in the summer of
2008.  Similarly, the plaintiff has failed to establish on the balance of
probabilities that the out-of-pocket expenses he incurred for maintenance work
performed in 2007 and 2008 were incurred as a result of the motor vehicle
accident.

[179]     While Mr.
Piper was a manager, Key Food provided him with a company vehicle and paid for
insurance, repairs and fuel for that vehicle.  This was a non-taxable benefit
with a value of $15,200 per annum.  Mr. Piper claims for the loss of this
benefit from February 2007 until December 2009, when Key Food ceased to provide
company vehicles for its managers.  Key Food requested and obtained the return
of Mr. Piper’s corporate vehicle in February 2007 during the early stages of
his 10-month absence from the workplace caused by his degenerative disc disease
rather than the motor vehicle accident.  When the plaintiff returned to work in
the fall of 2007 as a parts specialist, he was no longer entitled to a
corporate vehicle.  I have found that his demotion was not attributable to the
motor vehicle accident.  In these circumstances, I find that the defendant’s
negligence did not cause the plaintiff’s loss of the corporate vehicle.

Summary

[180]    
In summary, damages are awarded as follows:

Costs

[181]    
If the parties are unable to agree on costs, they may speak to the
issue.

“PEARLMAN J.”