IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120417

Docket: M110108

Registry:
New Westminster

Between:

Tajinder Singh
Bansi

Plaintiff

And

Bradley Pye

Defendant

Before:
The Honourable Mr. Justice Jenkins

Reasons for Judgment

[1]            
This trial was a hearing of two actions in which Tajinder Singh Bansi is
plaintiff claiming damages suffered in two separate motor vehicle accidents. By
order of the Master made December 30, 2008, these actions were directed to be
heard at the same time, subject to direction of the trial judge.

[2]            
The first motor vehicle accident (the “2005 MVA”) occurred on December
13, 2005 while the plaintiff was travelling in his van in a southbound
direction on the King George Highway near 128 Street when he was rear-ended without
warning by the defendant vehicle owned and driven by the defendant Pye. The
impact pushed the plaintiff’s van into another vehicle stationed ahead of his
van. The force of the impact broke the back of the plaintiff’s seat and caused
approximately $7,000 damage to the plaintiff’s vehicle. The plaintiff stated he
was shocked, felt nauseous and remained sitting in his vehicle for several
minutes. He stated he was shaking for several minutes.

[3]            
The second motor vehicle accident (the “2008 MVA”) occurred on April 25,
2008 while the plaintiff was driving eastbound on the Trans-Canada Highway near
Bridal Falls, B.C. In his vehicle with him was his sister, Rupinder Bansi, who
was sitting in the front passenger seat, and his mother, who was sitting in the
back seat. The plaintiff’s vehicle was travelling at approximately 100 km/h in
the inside lane, next to the defendant Garrard’s vehicle, a Jeep Grand Cherokee,
which was towing a trailer loaded with hay. Suddenly, the trailer began to
weave and “fishtailed” into the right rear of the plaintiff’s vehicle, causing
the plaintiff to temporarily lose control. Once the plaintiff again gained
control of his vehicle, the trailer again swung sideways into the plaintiff’s
vehicle causing him to lose control and spin out, eventually hitting a concrete
barrier.

[4]            
The plaintiff was stunned and stayed in his vehicle for several minutes
while his sister got out to assess the situation. The plaintiff’s vehicle, a
2005 Pontiac Montana mini-van, was considered by ICBC to be a write-off.

[5]            
The defendants in both actions have admitted liability.

THE PLAINTIFF PRIOR TO THE 2005 MVA

[6]            
At the time of the 2005 MVA, the plaintiff was 30 years old and
generally in good health. Although he had been injured in motor vehicle
accidents in 1992 and 1998, Mr. Bansi’s evidence and that of his family doctor,
Dr. McGrath, was that he had recovered from the injuries shortly after those
accident and long before the two motor vehicle accidents which resulted in his
current injuries.

[7]            
In 1998 Mr. Bansi graduated from Simon Fraser University with a Bachelor
of Arts, with a major in Criminology, having previously attended Kwantlen
College in Surrey until 1995. For several years he worked as a private
investigator and formed a company, Allied Investigations, with two associates
and remained active as a private investigator for Allied Investigations until the
early spring of 2005. As the business of Allied slowed in early 2005, Mr. Bansi
considered other options for work including the field of construction
management.

[8]            
Starting in the year 2000, the plaintiff managed renovations for the
family home. He maintained an interest in construction and in 2003 renovated an
uncle’s home, performing much of the work himself. He later renovated a
separate home in Surrey which was eventually sold and then, after working on
another home, renovated the home he and his family live in now on 89A Avenue in
Surrey (the “family home”). He continued to renovate homes which were purchased
by his mother and sold, presumably for profit and to cover family expenses.

[9]            
All the while the plaintiff has lived with his family in Surrey which
includes his parents, his sister as well as his brother’s family which include
his wife and two young children.

[10]        
The plaintiff was widowed in May 2005 after the passing of his wife
which was clearly a very upsetting time.

[11]        
The plaintiff’s family members have been very supportive of each other
and share responsibilities and expenses around the home. Prior to the 2005 MVA,
the plaintiff spent considerable time performing yard work, maintaining the
garden bed in the front and back of the home, mowing the lawn and regularly performing
other household tasks requiring physical exertion.

[12]        
His leisure time up to the 2005 MVA included time spent cycling,
especially with his sister, some jogging, attending a gym three to four times
per week and supervising his young niece and nephew at play. He also regularly
attended family functions and often participated in services at his temple.

[13]        
In 2005 the Allied Investigations business appeared to be slowing down
and the plaintiff enrolled in a real estate course while continuing, albeit
with a lesser commitment, as a private investigator. In June 2005 he and a
friend, Perry Dulai went into the real estate business and purchased some
residential lots in Cloverdale. The properties were purchased with financing
assistance from Mr. Dulai’s parents and others, and eventually they purchased
six lots on which the plaintiff and his partner Perry Dulai were to build homes
for resale. The plaintiff and Mr. Dulai worked through a company which had been
incorporated by Mr. Dulai’s father, IKON Properties. The plaintiff’s
responsibilities on those homes was to obtain plans from the consultants; work
with the consultants to approve those plans; retain structural engineers and
other professionals; and file applications to the City for building permits.
They worked through IKON as that company was licensed under the Residential
Construction Warranty Program. The plan was for the plaintiff and his friend
Perry Dulai to each be 50% owners of IKON. The plaintiff would earn his shares
in IKON Properties by contributing his management fee during the company’s
start-up period in 2005 and 2006. In addition to the Cloverdale properties,
there was another home in Panorama Ridge which was to be built by the plaintiff
and Mr. Dulai through IKON.

[14]        
The plaintiff has never had formal construction management training but
had clearly spent considerable time learning the business through renovation
work and planning and coordinating the construction of homes with IKON
properties.

[15]        
Prior to the 2005 MVA, the plaintiff and Mr. Dulai had commenced
construction of one home on 70 Avenue in Surrey to the foundation stage. He had
supervised the excavation, worked with the surveyor, worked on estimates and
permits, and organized and received the drawings. He also worked to keep the
site and nearby streets clean. In addition, he dealt with inspectors from the
City and undertook considerable physical work on site. He undertook tasks such
as arranging for and delivering generators to the construction site, purchasing
and bringing in miscellaneous materials, securing the site, stripping form
work, traffic control, dealing with trade contractors in correcting deficiencies,
installing insulation, vapor barrier, fire stopping and other miscellaneous
tasks. As the construction manager on small residential sites, the plaintiff in
essence became not only a manager but also a “handy man” to assist and
facilitate the trades and others working on site which necessarily involved considerable
physical work.

[16]        
What is also clear is that at the time of the 2005 MVA, the plaintiff
was just in the process of embarking upon his career as a construction manager
or supervisor. It cannot be said that he had established himself as an
experienced construction manager at the time of the 2005 MVA, but based upon
his hands on experience, his arrangement with Mr. Dulai and his dedication to
hard work, he had an opportunity for a promising future in residential
construction management. His work ethic, contacts and friends in the
construction business and his interest in the business were all positive
factors which could have assisted his career. His lack of formal construction
management experience at the time was also a factor which would likely have
placed limitations on his progress.

[17]        
Proof that the plaintiff was embarking on a new career can be found in
his income tax returns up to and including that for 2005 which will be
referenced later in these Reasons in the discussion on damages. Even
considering Mr. Bansi was “banking” some of his income to accrue equity in IKON
Properties late in 2005, his income from providing construction management
services prior to the 2005 MVA was nominal.

[18]        
Also, it is relevant that Dr. Caillier, a Physical Medicine and
Rehabilitation specialist who gave evidence at the trial, determined that Mr.
Bansi, prior to the 2005 MVA, was suffering from asymptomatic pre-existing
degenerative changes involving his lumbar spine region with the result that
“the physical deconditioning which occurred following the first motor vehicle
accident of which was likely worsened after the second motor vehicle accident
probably placed him at increased risk of developing such issues secondary to
the loss of spinal stability through that of loss of muscular strength”.

THE PLAINTIFF’S INJURIES ARISING FROM THE 2005 MVA

[19]        
Mr. Bansi sought treatment from Dr. McGrath on the day following the
accident. His complaints at that appointment and in others soon after included
neck, lower back, left arm and right knee pain, dizziness, abdominal pain, pain
in both hips while climbing stairs, severe headaches and shoulder pain, especially
after looking up. During 2006, 2007 and up to the time of the 2008 MVA, Mr.
Bansi paid several visits to Dr. McGrath, all of which are mentioned in Dr.
McGrath’s report of November 28, 2008. Over time, the dizziness and headaches
abated, however, the pain in his lower back, shoulder, trapezii and neck in
particular continued to persist. He also reported problems sleeping.

[20]        
In his report of November 28, 2008, Dr. McGrath concluded:

In summation, Mr. Bansi was injured in a rear end collision
on December 13, 2005. In addition to various contusions of knee, shoulder, and
abdomen, he sustained spinal injuries which I believe could be classified under
ICBC’s Soft Tissue Injury Classification as Grade III:Neck/Back neurological
signs: decreased reflexes, decreased sensation, and decreased strength.

He was not even close to fully recovered at the time of the
new crash and there is no way of knowing if he was heading for a permanent
partial disability. He had a relative small total disability because he is
self-employed. . .

I think on the balance of
probabilities he did sustain ongoing permanent injury.

[21]        
During the time up to the 2008 MVA, Dr. McGrath had written several
prescriptions for Naprosyn, Tylenol 3, Voltaren SR 75, Flexaril, Sere and Emtec
for pain, muscle relaxation and dizziness among other things. Up to that time,
Dr. Bansi had not been assessed by any specialist physicians and had relied
only on the advice of his long time family doctor, Dr. McGrath.

[22]        
Mr. Bansi returned to work about a month after the 2005 MVA and resumed
his duties, albeit with some difficulty. According to the Dr. McGrath’s report,
Mr. Bansi was able to return to his full duties which included some physically
demanding work on job sites.

[23]        
As of May 2, 2006, Mr. Bansi had received 20 physiotherapy treatments at
Sun God Physiotherapy. He had exercised at Fleetwood Recreation Centre three or
four times a week. In June 2006 he was given a referral to the Canadian Back
Institute (the “CBI”) and continued with treatment at that facility until
mid-September 2006. At CBI he was given work simulation treatment while
continuing full time with his employment with IKON. Pain in his lower back
continued to be his major source of pain. In October 2006, Mr. Bansi was
referred to a physiotherapist, Cliff Fowler, of Twin Rinks Physiotherapy where
he received 73 treatments from Mr. Fowler through to at least November 2008.
During that time he continued to suffer from back pain, shoulder pain, numbness
in his left leg and sleep problems. Mr. Bansi’s evidence was that he would have
continued with physiotherapy treatments and ceased treatments due only to
financial constraints.

[24]        
In June of 2007, Mr. Bansi reported severe pain and numbness into his
left leg and foot following time spent “digging a trench 40 feet by 2 feet” on
a job site. Mr. Bansi stated that what he had been doing was cleaning out a
ditch dug by a small excavator and was not actually undertaking the heavy
lifting of actually digging a ditch. Whatever he was doing, it clearly
aggravated his injuries. This incident was also indicative of his desire to
continue work as a construction manager. On March 19, 2008, Mr. Bansi reported
that he back pain had been worse and that he had been working 10 to 11 hours
per day in that period of time, resulting in pain in the area of the left
sacro-iliac joint and sought acupuncture treatment which never did materialize,
likely due to the 2008 MVA. I also agree that this incident was not the cause
of any of the injuries suffered by Mr. Bansi, it was the result.

[25]        
There was also evidence that Mr. Bansi had “ripped open the wall of a
house” on one of his projects built in 2011. On cross examination, Mr. Bansi
described how he used a knife to cut drywall and a sabre saw to cut studs and
drywall to extend a laundry room. The defence cites these examples to suggest
that by performing that physical work, his injuries are not as debilitating as
his descriptions suggest. Based upon Mr. Bansi’s evidence, I find that these
efforts are more indicative of his determination to continue working as a
construction manager. He volunteered this information to his physicians and
other consultants which suggests a serious effort to continue performing tasks
which had previously been fairly easy for him and which he wanted to continue
in order to keep his work performance at an acceptable level. His evidence was
also that when he made efforts at more demanding work, he suffered with more
pain than otherwise. Based upon the medical-legal evidence before me and Mr.
Bansi’s evidence, I do not accept that these two incidents are indicative of Mr.
Bansi exaggerating his symptoms.

[26]        
In January of 2011 Mr. Bansi was further assessed by Dr. Lisa Caillier,
a Physical Medicine and Rehabilitation specialist who gave evidence for the
plaintiff.  After a review of Mr. Bansi’s medical records and her assessment of
him, Dr. Caillier listed Mr. Bansi’s “Injuries or Problems Related to MVA No. 1
dated December 13, 2005” as follows:

1.         Cervicogenic headaches.

2.         Cervicogenic dizziness.

3.         Soft
tissue musculoligamentous injury involving the neck, upper back and posterior
shoulder girdle regions.

4.         Soft tissue musculoligamentous injury involving
the lower back.

5.         Aggravation
of pre-existing asymptomatic degenerative changes within the lower back region.

6.         Soft tissue injury involving the right knee with a
contusion.

7.         Abdominal soft tissue injury, likely secondary to
the seatbelt.

8.         Disrupted sleep.

9.         Decrease in physical capabilities.

10.       Decrease in ability to fulfil
his home, vocational and recreational roles /duties.

[27]        
Leading up to the time of the 2008 MVA, Mr. Bansi’s evidence was that
the dizziness had subsided, his shoulders were “close to normal”, he had
overcome the injuries to his right knee and abdomen, and his headaches and his
left hip had improved. His major symptom prior to the 2008 MVA was the
continuing pain in his lower back which Dr. McGrath believed, on a balance of
probabilities, to be an “ongoing permanent injury”.

[28]        
At page 8 of her report dated January 16, 2011, under the heading of
“Diagnoses and Differential Diagnoses” Dr. Caillier made the following statement
regarding Mr. Bansi’s injuries arising from the 2005 MVA:

1. Chronic pain. It is my opinion that Mr.
Bansi does have chronic pain involving the neck, upper back, posterior shoulder
girdle and low back regions.

It is my opinion that the symptoms within the neck, upper
back and posterior shoulder girdle region are predominantly soft tissue,
although there is probably that of a component of mechanical neck pain. It is
my opinion that these particular symptoms are attributable to and a direct
result of the motor vehicle accident of December 13, 2005 and subsequently
aggravated by the motor vehicle accident of April 25, 2008.

It is my opinion that, given Mr. Bansi continued to have
intermittent symptoms involving his neck, upper back and posterior shoulder
girdle prior to the second motor vehicle accident of April 25, 2008, and given
the chronicity of the symptoms at that point in time, he was likely to have
ongoing intermittent symptoms involving this area, had he not been involved in
the second motor vehicle accident.

It is my opinion that he continued to be limited in regards
to these particular symptoms with what he was able to do; thus, it is my
opinion that there likely would have been limitations in regards to his
vocation and functional and recreational capabilities, even prior to the second
motor vehicle accident, given the chronicity of his symptoms.

It is my opinion that Mr. Bansi’s lower back symptoms are
mechanical as well as soft tissue in nature.

It is my opinion that the low
back symptoms are directly attributable to and a result of the motor vehicle
accident of December 13, 2005 and the subsequent soft tissue musculoligamentous
injury, as well as the aggravation of pre-existing degenerative changes within
the lumbar spine region. It is my opinion that his symptoms were subsequently
further exacerbated by that of the motor vehicle accident of April 25, 2008.

THE PLAINTIFF’S INJURIES ARISING FROM THE 2008 MVA

[29]        
Mr. Bansi stated in evidence that as between the 2005 and 2008 MVAs, his
symptoms were more severe following the 2008 MVA. His description of his physical
injuries following the 2008 MVA can be summarized as follows:

·      
Neck – his symptoms were the same as after the 2005 MVA, although
more severe and more acute on the left side with daily neck pain at first then
reducing to three or four times per week. Upper body work aggravated his neck
pain.

·      
Ear – Related to his neck pain was a pain in his left ear that
continued to his left shoulder and shoulder blade. There was soreness at the
top of his shoulders and more pain in his shoulder blades than he experienced
after the 2005 MVA. Mr. Bansi also reported impaired hearing in his left ear
which resulted in a referral to Dr. Longridge, an Ear, Nose and Throat
specialist.

·      
Low Back – he experienced considerable pain above his buttocks
with the left side being worse than the right. The pain continued from his back
down his legs to his feet and the back pain was the most acute of all of his
pain. At times he felt numb in his left leg from his knee and down to his feet.
He also suffered a pinching sensation in his spine, muscle spasms to his
thighs, legs and sides of his knees. The soreness, according to Mr. Bansi, was
constant.

·      
Headaches – Mr. Bansi initially suffered daily headaches which
subsided to three to four times per week. Mr. Bansi stated the headaches seemed
to be brought on at times by the pain on the left side of his neck and left
shoulder.

·      
Right Knee – his right knee was sore immediately after the 2008
MVA and for a time Mr. Bansi had difficulty climbing stairs and using the step
machine in the gym.

[30]        
Following the 2008 MVA, Mr. Bansi continued with treatment from Dr.
McGrath. In her report of November 28, 2008, Dr. McGrath stated, at page 4:

He was not even close to fully
recovered at the time of the new crash and there is not any way of knowing if
he was heading for a permanent partial disability… I think on the balance of
probabilities he did sustain ongoing permanent injury.

[31]        
Dr. McGrath continued to see Mr. Bansi through 2010 and made several
reports of his low back and leg pain including muscle spasms, headaches three
to four times per week, significant pain in his left shoulder and muscle spasms
in his right shoulder and continuing pain and loss of hearing in his left ear.

[32]        
Dr. McGrath also wrote a further report on September 17, 2010, which
included reports of the symptoms referred to above and the following assessments
of Mr. Bansi’s injuries:

Examination that day [December 11, 2008] revealed a decrease
in the Range of Movement of his neck and back. He reported tenderness on
palpation over his neck and back. The Diagnosis was soft tissue injury.

In conclusion, Mr. Bansi
continues to have marked symptoms of pain and limitation of movement of his
neck, shoulders, and entire back radiating into buttocks and legs. He has loss
of hearing in his left ear after the second very major crash. . . . . After
such a long period of time it looks as if the symptoms may be permanent and
ongoing.

[33]        
Also at page 7 of her report of January 11, 2011, Dr. Caillier listed
“The Injuries of Issues Related to the MVA No. 2 dated April 25, 2008” as
follows:

1.         Cervicogenic headaches

2.         Cervicogenic dizziness

3.         Left hearing complaints. . .

4.         Exacerbation
of pre-existing symptoms involving the neck, upper back, and lower back
regions.

5.         Soft
tissue musculoligamentous injury involving the neck, upper back, and posterior
shoulder girdle and lower back region.

6.         Further aggravation of degenerative changes within
the lumbar spine.

7.         Altered mood and anxiety.

8.         Worsening of sleep disturbance.

9.         Further decrease in ability to
participate in the functional, recreational, and vocational activities of his
choosing.

[34]        
Further at page 9, Dr. Caillier stated:

It is my opinion, given the
chronicity of Mr. Bansi’s physical symptoms, both following that of the first
motor vehicle accident as well as ongoing since the time of the second motor
vehicle accident, the likelihood of him becoming pain-free is very poor.

[35]        
In addition to the pain and suffering due to the above injuries, the
most significant changes to Mr. Bansi’s health after the 2008 MVA were
emotional. After the long, slow improvement from the injuries suffered in the
2005 MVA, Mr. Bansi was clearly very frustrated at having to start recovery
over again, especially since he had made significant progress from the injuries
arising from the 2005 MVA. His mood deteriorated significantly and he admitted
that he had become depressed. The thought of recommencing treatments, renewal
of many prescriptions for pain and the other consequences of his injuries
deeply affected his ability to be able to cope with daily activities. his
relationships with others and with his obligations at work.

[36]        
Dr. Caillier commented at length on Mr. Bansi’s mood and depression at
page 11 of her report of January 16, 2011:

5. Mood and anxiety.  It is my opinion that
Mr. Bansi’s bood and anxiety became an issue following that of the second motor
vehicle accident of April 25, 2008

It is my opinion that Mr. Bansi was reportedly experiencing
some improvement of his physical symptoms prior to the second motor vehicle
accident in question, and following the second motor vehicle accident began to
experience that of mood difficulties in the form of depression as well as
anxiety when driving.

It is my opinion that Mr. Bansi’s mood and anxiety continue
to be an issue and are negatively impacting upon his ability to be functional
and active, as well as to cope and manage with his physical symptoms.

It is my opinion that Mr. Bansi requires that of improved
mood and sleep. It is my opinion that he would likely benefit from
psychological assessment and counselling, and in this regard I am recommending
this be done. I will defer to my colleagues in Psychology to discuss that of
the number of sessions that would prove to be beneficial for him.

It is my opinion that Mr. Bansi
requires that of improved mood. He describes himself as being depressed. His
family has reportedly noticed a difference in his behaviour. It is my opinion
that he would likely benefit from a trial of either Cymbalta or Effexor, as
this may benefit him in regards to mood and anxiety, as well as in pain
management. I recommend that this be started once he has been assessed by his
family physician. I have encouraged him to talk to his family physician about
his mood today, as this is certainly a concerning portion of the assessment
today.

[37]        
Commenting further on Mr. Bansi’s mood and depression after Mr. Bansi
had consulted Dr. Dean C. Powers, a Vocational Rehabilitation Consultant, who
had noted Mr. Bansi was suffering “depression in the severe stage and anxiety
in the moderate range”, Dr. Caillier stated at pages 3 and 4 of a later
addendum report dated November 25, 2011:

I am in agreement with the recommendation stated by both Dr.
Powers as well as the occupational therapy assessment which included that of a
chronic pain program. This is important for allowing Mr. Bansi to have improved
management of his physical symptoms and improving upon his psychological and
emotional symptoms given that these programs typically have a psychologist and psychiatrist
available. Given the long wait list for the public programs, I am in agreement
with Dr. Powers in that it would be beneficial for him to be enrolled in a
chronic pain program within the private sector and these types of programs are
found at Orion Health.

I am in agreement with Dr. Powers that he would likely
benefit from a physiologic assessment and counselling and I am continuing to
recommend this. I had previously noted that Mr. Bansi required improved mood in
the January 16, 2011 medical legal report and at that time recommended Cymbalta
or Effexor be stared pending a review with a psychologist.

I have previously recommended that Mr. Bansi participate in
an active rehabilitation program which he has. There has been improvement in
his physical symptoms with the participation in such a program. However, these
symptoms have not completely resolved and this is something which was expected
as the goal of such a program was improved management of his physical symptoms
and to be more functional and active. On review of the reports from
Mountainview kinesiology there does appear to be improved management of his
physical symptoms.

It continues to be my opinion
that Mr. Bansi’s underlying emotional and psychological factors are also likely
impacting the chronicity of his physical symptoms, as well as the ability to
cope and manage with his physical symptoms. Dr. Powers noted in his October
2011 report that there was ongoing severe depression and moderate anxiety with
the testing that was completed during the assessment. Ongoing management of Mr.
Bansi’s physical symptoms does involve that of regular independent exercise
program, as well as improvement of mood, anxiety and sleep.

[38]        
Dr. Caillier also stated, in cross examination, that although Mr. Bansi
will continue to have chronic pain and mechanical back pain, if his mood were
to improve, he would be more able to be functional and active at work,
exercising and in carrying out day-to-day chores. Dr. Caillier also stated that
mood correction would also result in improvements in his physical condition and
his pain.

[39]        
To date, the evidence shows that Mr. Bansi has not sought out a
psychological assessment or counselling and it is the defendant’s position that
Mr. Bansi’s failure to seek treatment for his mood, depression and anxiety is a
mitigating factor in the assessment of damages in this case. Under cross
examination Mr. Bansi confirmed his awareness of Dr. Caillier’s recommendation
to obtain counselling but did not follow through as he could not afford the
counselling. Also, when asked if he had asked someone to assist him and pay for
the counselling, he indicated he had not done so. Mr. Bansi had previously
answered a question in cross-examination about who had paid for physiotherapy
in 2011 and responded that “someone did”; from this, counsel for the defendant
inferred that money must have been available to Mr. Bansi from “someone”, so he
should have pursued whether that “someone” was prepared to pay for the psychological
testing and treatment.

[40]        
I should also point out that Dr. Caillier has been clear that she is not
a psychiatrist or psychologist and she deferred to colleagues in those fields
who would be able to provide assessments of Mr. Bansi’s state of mind. Although
Dr. Caillier had had extensive experience dealing in particular with
rehabilitation, she is not an expert in the psychiatric or psychological fields
and no experts from those disciplines gave evidence in the case at bar. Also,
although Dr. Caillier may be quite correct in her statements to the effect that
psychiatric and psychological treatment could help reduce pain symptoms and improve
Mr. Bansi’s quality of life in the future, the likelihood of improvement is far
from clear to me.

[41]        
Dr. Caillier had recommended Cymbalta and Terrazadone and Mr. Bansi did
give evidence that he started to take Cymbalta in August of 2011 and that he
had also previously taken Terrazadone at the suggestion of Dr. McGrath on the
understanding that drug would help is mood and sleep problems. Also, it is
significant to point out that it was only in 2011 that Mr. Bansi first saw Dr.
Caillier who then recommended treatment for his depression and although he has
been following her advice on the prescriptions for depression and sleep
problems, his evidence is that he intends to seek psychiatric help as soon as
possible.

[42]        
The two MVAs have had a significant negative impact on Mr. Bansi’s
lifestyle and quality of life. Mr. Bansi had previously been very active and
energetic whether in working on home renovations, exercising at the gym, cycling,
washing family vehicles, participating in family events, services and prayers
at the temple, working at household chores including maintenance of the gardens
and yard, driving family members for appointments, shopping and much more.

[43]        
Since the MVAs, he has had considerable difficulty driving for any
significant time, he no longer looks after the family gardens and yard, rarely
socializes with family or at the temple, lacks motivation, spends more time
alone in his suite at the family home, rarely takes care of his young niece and
nephew, no longer goes on bike rides with his sister and has clearly had
significant problems in carrying out his duties on construction sites. Not only
has he had difficulty performing the work, his productivity is considerably
impaired and what were simple physical tasks now take much longer. His employers
have also noted his decrease in production and energy on the work site which I
will address further in his claim for past loss of income and diminished
earning capacity.

ASSESSMENT OF NON-PECUNIARY DAMAGES

[44]        
Firstly, the medical-legal evidence before me, ie. that of Drs. McGrath
and  Caillier, attribute the injuries described above to the 2005 and 2008
MVAs. That evidence is not contradicted.

[45]        
In assessing non-pecuniary damages, the leading case is Stapley v. Hejslet,
2006 BCCA 34, 263 D.L.R. (4th) 19. At paragraph 45, Kirkpatrick, J.A. stated as
follows:

[45]      Before embarking on that task, I think it is
instructive to reiterate the underlying purpose of non-pecuniary damages. Much,
of course, has been said about this topic. However, given the not-infrequent
inclination by lawyers and judges to compare only injuries, the following
passage from Lindal v. Lindal, supra, at 637 is a helpful reminder:

Thus the amount of an award for
non-pecuniary damage should not depend alone upon the seriousness of the injury
but upon its ability to ameliorate the condition of the victim considering his
or her particular situation. It therefore will not follow that in
considering what part of the maximum should be awarded the gravity of the
injury alone will be determinative. An appreciation of the individual’s loss
is the key and the "need for solace will not necessarily correlate with
the seriousness of the injury" (Cooper-Stephenson and Saunders, Personal
Injury Damages in Canada (1981), at p. 373). In dealing with an award of
this nature it will be impossible to develop a "tariff". An award
will vary in each case "to meet the specific circumstances of the
individual case" (Thornton at p. 284 of S.C.R.).

[Emphasis
included]

[46]        
In other words, in assessing non-pecuniary damages, it is not only a
matter of comparing the injuries suffered but also the effect of those injuries
on the lifestyle and personality of each person.

[47]        
Counsel for the plaintiff has referred me to two cases and argues that
damages for pain and suffering should be in the range of $70,000 to $100,000.

[48]        
Counsel referred firstly to Haag v. Serry, 2009 BCSC 187,
[2009] B.C.J. No. 276. In that case, the extent of pain and suffering was much
less than that which Mr. Bansi has suffers as a result of the 2005 and 2008
MVAs and the injuries have had a much greater impact on Mr. Bansi. In Haag,
the plaintiff was also engaged in the construction industry in a similar
capacity to that of Mr. Bansi, i.e. as a construction superintendent or
construction manager. By the time of trial in Haag, the plaintiff was
able to physically perform the tasks included in his job description but experienced
pain in doing so. Like Mr. Bansi, Mr. Haag also tired easily, had to curtail
some recreation, was less able to care for his ailing mother, had more
difficulty walking and his demeanour was subsequently more “curt and clipped”.
He was also considered to be stoic as is Mr. Bansi. In Haag, the award
for non-pecuniary damages was $70,000 reduced by 10% due to pre-existing facet
joint arthritis.

[49]        
In the second case relied upon by counsel for the plaintiff, Smaill v
Williams, 2010 BCSC 73, [2010] B.C.J. No. 91, in which the plaintiff,
similar in age to Mr. Bansi, was involved in two accidents resulting in more
serious injuries than those of Mr. Bansi. In Smaill, it was the opinion
of the family physician that the plaintiff would not be able to return to any
form of moderate to heavy labour. The plaintiff in that case was also suffering
from street drug use which at one point resulted in his incarceration. In that
case the plaintiff was awarded $100,000. This award seems inordinately high in
the circumstances in the case at bar.

[50]        
The defendant relies on four decisions where the awards range from
$40,000 to $55,000. One of those cases, where there was an award of $55,000,
was Morrison v. Gauthier, 2009 BCSC 1271, [2009] B.C.J. No. 1860.
The injuries in that case had a drastic effect on the plaintiff as Stewart J.
found at para. 41:

[41]  … by [the defendant’s]
negligence on September 27, 2006 he managed to reduce a woman operating at an
athletic level undreamt of by 99% of the population to a woman who must now,
often, be helped out of a chair. That woman’s compensable loss is overwhelming.

[51]        
The other authorities put forward by counsel for the defendant were
situations where there were similarities in the injuries, but the injuries were
suffered for shorter durations up to trial and did not appear to have as big an
impact on the plaintiff’s lifestyle as is the case with Mr. Bansi, let alone in
comparison to the plaintiff in Morrison. The differences between Morrison
and the case at bar are that in Morrison, the plaintiff was considerably
older at the time of the accident, Mr. Bansi suffered the impact of two
accidents in just over two years and Mr. Bansi was having difficulty performing
simple tasks at work. In Morrison, there was no indication the plaintiff
had difficulty performing at work as a sales representative and the impacts
were primarily to her personal life.

[52]        
As a result, I do not find the authorities argued before me to be
particularly helpful. Considering that the injuries sustained by Mr. Bansi are
not seriously challenged, his lower back injury is likely permanent, having to
start his rehabilitation over again after the 2008 MVA will have an impact on
his psyche, the difficulties he is having in performing previously simple tasks
which were part of his job as a construction manager, the likelihood of him
having to persevere with chronic pain in the future, and the resulting loss of
enjoyment of life, I find an appropriate award of non-pecuniary damages to be
$75,000.

MITIGATION

[53]        
Counsel for the defendant has referred me to decisions where a plaintiff
has failed to mitigate by not following up on prescribed or recommended
treatment. In Wahl v. Sidu, 2011 BCCA 111, 302 B.C.A.C. 180, the BC
Court of Appeal confirmed that the correct test for failure to mitigate by not
pursuing recommended medical treatment is that set out in Chiu v. Chiu,
2002 BCCA 618, 8 B.C.L.R. (4th) 227 at para. 57:

[57] …In a personal injury
case in which the plaintiff has not pursued a course of medical treatment
recommended to him by doctors, the defendant must prove two things: (1) that
the plaintiff acted unreasonably in eschewing the recommended treatment, and
(2) the extent, if any, to which the plaintiff’s damages would have been
reduced had he acted reasonably.

[54]        
The recommendations to Mr. Bansi to obtain psychological or psychiatric
counselling and that such counselling could assist his pain management was
emphasized for the first time by Dr. Caillier in her first report of January
16, 2011. Since that time Mr. Bansi has not undertaken any such counselling and
has not investigated such treatment. His stated reason for not pursuing this
counselling has been that he could not afford the fees for the counselling
sessions. He also admits he has not asked any third person to provide him funds
for this counselling after it had been suggested that his family may assist him
financially in this regard.

[55]        
Mr. Bansi did state that he intended to follow up with psychological
and/or psychiatric counselling. There was no evidence that he had approached
the defendant for funding for the counselling.

[56]        
In Qiao v. Buckley, 2008 BCSC 1782, [2008] B.C.J. No.2533, Sinclair
Prowse J., having found the defendant had proven that the plaintiff had failed
to mitigate, stated at para. 66:

[66] As far as the cost of the
treatment is concerned, the evidence was not sufficient to prove that the Plaintiff
was precluded from receiving this treatment because of it. The evidence fell
short of showing that the Plaintiff had taken any steps to address this
problem. For example, she never mentioned this difficulty to any of her
treating doctors nor did she raise it with the Defendants.

[57]        
I find that Mr. Bansi did fail to follow up, investigate and pursue
possible counselling and failed to sufficiently pursue funding for such
counselling. However, this failure should only be considered as commencing a
reasonable time after Dr. Caillier’s initial advice to obtain counselling and
that a reasonable time would have been four months. In the circumstances, I am
reducing damages by 10% for Mr. Bansi’s failure to mitigate.

PAST LOSS OF OPPORTUNITY

[58]        
The plaintiff claims for lost opportunities to earn income as a
construction manager or superintendent during the approximately five years
since the first of the two MVAs. During the vast majority of that time, Mr.
Bansi was self employed. As of August 2010 he switched from working on a
contract basis for Kooney Homes to permanent staff. Prior to that time, some of
his earnings came from Allied Security where he worked and at one point was a
partner, which was a company providing security and private investigator
services. Actual time lost from earning income was nominal as Mr. Bansi
continued to work when possible.

[59]        
Counsel for the plaintiff refers to the decision of Paki v. Muni,
[1995] B.C.J. No. 2315, 1995 CarswellBC 2344 (S.C.) [cited to QL] at para.
53 which states:

[53]      There is no dispute
that the plaintiff is entitled to be compensated for the loss of an opportunity
to earn income because of an injury. In determining if such a loss has
occurred, the court may consider if “the plaintiff has lost the ability to take
advantage of all job opportunities which might otherwise have been open to him,
had he not been injured”: Brown v. Golaiy et al [1985] B.C.J. No. 31,
December 13, 1985, Vancouver Registry B831458 (S.C.).

[60]        
In considering this claim, I have noted that at the time of the 2005
MVA, Mr. Bansi was still relatively new to the construction industry and the
site management of construction projects. Other than work performed by himself
and managed by him on some of his family homes and other homes purchased by his
mother, his experience up to December 2005 was very limited and his earnings
from the construction work were very low. In the years leading up to the 2005
MVA, his primary source of income was from Allied Security. Although Mr. Bansi
had always expressed interest in the construction industry, he had no formal
training, no record of past performance and was basically self-taught to be a
site manager or superintendent on single family home projects. Capable, hard
working and willing to learn but nevertheless he was a relative newcomer to the
field.

[61]        
Mr. Bansi’s income in the years leading up to the 2005 MVA reveal very
low earnings. Counting all of his 2005 earnings as having been earned before
the 2005 MVA which occurred on December 13, 2005, his income ranged from a
maximum of $26,333 in 2002 to a minimum of $1,050 net of business expenses in
2005. During 2005 he entered the construction industry with his friend, Pari Dulai
and started managing a project which included 11 or 12 similar homes in a
subdivision in Cloverdale, B.C. Work actually started on that project in
November of 2005, although there was considerable work involving planning,
working with the consultants, securing permits and arranging for trade
contractors which had to be completed before work started on site. During the
latter part of 2005, Mr. Bansi was waiving his fee or any income so as to be
able to build up some equity in IKON Properties, the corporate vehicle which he
and Mr. Dulai were using to build the homes. They had reached an agreement to
be equal partners in the business. Had Mr. Bansi been earning a salary from IKON
Properties, his income in 2005 would no doubt have reflected the value of his
services during that year.

[62]        
Following the 2005 MVA, Mr. Bansi’s earnings actually increased. His
total income, net of business expenses, between 2006 and 2011 ranged from just
over $17,000 in 2007 to $58,000 in 2010. In every other year since the 2005 MVA,
Mr. Bansi’s earnings have been in the low to mid $20,000s.

[63]        
However, the test, according to Paki is not to compare
pre-accident income to post-accident income, it is to compensate a plaintiff
for the lost ability “to take advantage of all job opportunities which might
otherwise have been open to him, had he not been injured” (at para. 53).

[64]        
During the trial, I heard considerable evidence of Mr. Bansi’s poor
performance, including his depression, during the years after the 2005 MVA,
which resulted from his injuries. He worked fewer hours since the 2005 MVA; he
and his employers and businesses including Kooney Homes and IKON Properties had
to employ labourers as a result of his limited capacity for physical work on
site; he forfeited some income by charging less than his agreed monthly rate
due to his admitted lack of performance; and he passed up opportunities for
additional projects which he could have managed had he not been injured.

[65]        
Mr. Bansi claims the sum of $85,000 for past loss of opportunity. There
is no expert testimony before me regarding this head of damages and no manner
of calculating such loss has been presented in evidence. According to Mr.
Bansi’s evidence, there were opportunities open to him and it is reasonable to
presume that as he gained skills and as long as the construction market
continued to be active, the number of opportunities would grow. Unfortunately
for Mr. Bansi, the residential construction market came to a sudden halt in the
fall of 2008 and continued in a slump in 2009 when there would have been few,
if any, opportunities for further earnings.

[66]        
As Madam Justice Sinclair Prowse stated at para. 65 in Paki:

[65]      To say the least, it
is difficult to calculate the plaintiff’s loss for past earning capacity.
Although the evidence shows he would probably have worked during this period,
it is difficult to establish the amount of work that he would have done given
the demands of his courses and his family life.

[67]        
However, difficulty in calculating damages with precision does not mean
a reasonable amount cannot be awarded to a litigant and there is evidence to
justify an award under this head to Mr. Bansi.

[68]        
Mr. Bansi did not have the same demands as did the plaintiff in Paki as
he was not taking courses and he was not limited by family obligations. His
family had always been supportive of him and continued to be so during this
difficult time. Accordingly there would have been few constraints on Mr. Bansi
in taking on additional work and new opportunities. Considering Mr. Bansi did
miss several days of work as a result of both accidents, he most likely could
have performed his work more efficiently had he not been injured and hence
could have put himself in a position where he could have charged additional
fees and earned profits. In reality, he reduced invoices to Kooney Homes in
particular, and hired labourers to take over some of his work at an additional
cost to Mr. Bansi, Kooney Homes and IKON.

[69]        
Considering all of the above and considering the lack of detailed
evidence regarding possible opportunities, I find Mr. Bansi entitled to $20,000
gross income for loss of past opportunity for the years 2006 through 2011, save
for 2009.

[70]        
Counsel for the defendant has referred me to ss. 95 and 98 of the Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231, s. 180 of the Insurance
(Vehicle) Regulation, B.C. Reg. 447/83, and Lines v. Gordon, 2009
BCCA 106, 306 D.L.R. (4th) 1, as authority for the principle that such awards are
to be calculated as the plaintiff’s net loss of earnings, by determining the
gross loss of earnings less income tax and other common deductions such as WCB
premiums. I have read Lines and as the income award under this head
cannot be easily compartmentalized (save for 2009), the award is to be paid as
if the gross income award, i.e. $20,000, was received by Mr. Bansi on the first
day of trial. I will leave it to counsel to make the necessary calculations to
determine the net amount due under this head. If agreement is not reached in
that respect, the parties will have liberty to apply. I expect the amount
involved would not require further court time.

SPECIAL DAMAGES

[71]        
The plaintiff claims a total of $11,413.34 for special damages which
includes fees for physiotherapy, prescriptions, kinesiology, mileage, and
miscellaneous other matters; this claim is not contested.

FUTURE ECONOMIC LOSS / DIMINISHED EARNING CAPACITY

[72]        
Plaintiff’s counsel refers to Perren v. Lalari, 2010 BCCA
140, 317 D.L.R. (4th) 729, as the leading authority regarding claims for
diminished earning capacity. The words of Garson, J.A. at para. 32 set out the
findings of the court as follows:

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

[73]        
As well, at para. 11Garson J.A. made reference to the test in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (B.C.S.C.) which is applicable:

[11] Kwei v. Boisclair (1991), 60 B.C.L.R. (2d)
393, 6 B.C.A.C. 314, was cited by Finch J.A. in Pallos. In Kwei,
where it was not possible to assess damages in a pecuniary way as was done in Steenblok,
Taggart J.A., speaking for the Court, held that the correct approach was to
consider the factors described by Finch J., as he then was, in Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353. Mr. Kwei had suffered a significant
head injury with significant permanent sequelae that impaired his intellectual
functioning. However, both before and after the accident, he worked at a
variety of low paying jobs, thus making it difficult for him to demonstrate a
pecuniary loss. Mr. Justice Taggart cited the Brown factors with
approval:

[25] The
trial judge, as I have said, referred to the judgment of Mr. Justice Finch in Brown
v. Golaiy. Future loss of earning capacity was at issue in that case. It
stemmed from quite a different type of injury than the injury sustained by the
plaintiff in the case at bar. But I think the considerations referred to by Mr.
Justice Finch at p. 4 of his reasons have application in cases where loss of
future earning capacity is in issue. I refer to this language at p. 4 of Mr. Justice
Finch’s judgment:

The means by which
the value of the lost, or impaired, asset is to be assessed varies of course
from case to case. Some of the considerations to take into account in making
that assessment include whether:

1.         The
plaintiff has been rendered less capable overall from earning income from all
types of employment;

2.         The
plaintiff is less marketable or attractive as an employee to potential
employers;

3.         The
plaintiff has lost the ability to take advantage of all job opportunities which
might otherwise have been open to him, had he not been injured; and

4.         The plaintiff is less valuable
to himself as a person capable of earning income in a competitive labour
market.

[74]        
Turning to the evidence, at p. 4 of her report of November 28, 2008, Dr
McGrath stated, “I think on the balance of probabilities he did sustain ongoing
permanent injury” and Dr. Caillier, at page 9 of her report of January 16, 2011,
that “the likelihood of him becoming pain free is very poor.” There was no
evidence to contradict the seriousness of the injuries as stated by Dr. McGrath
and Dr. Caillier.

[75]        
Under this head of claim, the plaintiff relied upon the evidence of Jane
Burns, a Registered Physiotherapist who performed a Physical Capacity
Evaluation on Mr. Bansi in September of 2011 and the previously mentioned Dr.
Dean Powers, a Vocational Rehabilitation Consultant.

[76]        
The evidence of Ms. Burns was not particularly helpful. The Physical
Capacity Evaluation was to provide Ms. Burns with information to be able to
evaluate Mr. Bansi’s physical strengths and limitations regarding
employability. I will not review her evidence in detail but she does conclude
that Mr. Bansi meets the strength requirements for his occupation of “general
contractor”. In fact, in some cases he exceeded what may be required for his
occupation. She does however indicate he is limited to light strength
categories, has restrictions if speed of work is a factor and is best suited
for those positions that permit him to alternate between sitting and walking.

[77]        
What is not clear from Ms. Burns’ evidence is Mr. Bansi’s endurance and
the pain he would suffer from performing some of the tasks of his occupation. She
did recommend further physiotherapy and that Mr. Bansi attend a pain program or
pain counselling.

[78]        
Dr. Powers undertook a vocational assessment regarding the employability
of Mr. Bansi and, based upon his background, medical information and
experiences, to determine positive vocational avenues for Mr. Bansi. The report
covers some 88 pages and includes much information relating to the test results
and criteria considered by Dr. Powers. At p. 6 of his report, after discussing
Mr. Bansi’s job description as a “General Contractor” and listing many of his
regular tasks in that role, Dr. Powers states this in the section of his report
entitled “Vocational Opinion and Recommendations”:

In my experience and opinion,
the aforementioned work demands and duties described by Mr. Bansi are typical
in this occupation as a self-employed general Contractor. Based on the
limitations noted above and Mr. Bansi’s unresolved chronic pain and physical
difficulties, in my experience and in my opinion, Mr. Bansi is not presently
suited to full time work as a self-employed General Contractor given his
medical difficulties and limitations. In my experience and in my opinion, Mr.
Bansi could perform this occupation but likely only on a part time basis
adopting compensatory strategies in order to maintain self-employment: frequent
rests and stretch breaks, interchanging sitting and standing as needed, not
performing heavy lifting, and not performing activities which require bending
and stooping, such as picking up and carrying site materials.

The tasks listed by Dr. Powers are all consistent with a job
description of a construction manager on smaller residential construction sites
and consistent with Mr. Bansi’s description of his typical tasks. Based on the
opinion quoted above, I understand Dr. Powers to be saying that Mr. Bansi will
have difficulties performing those tasks and he is currently not well suited to
the position of construction manager.

[79]        
At p. 18 of Dr. Powers’ report of October 21, 2011, some of the test
results relied on by Dr. Powers indicate that Mr. Bansi’s “theme preferences
are Conventional, Enterprising, Realistic and gives a list of his top five
interest areas as well as Mr. Bansi’s top 10 Strong occupations. Although one
of the top five interest areas includes “Mechanics and Construction”,
construction type occupations are not included in his top 10 Strong
occupations.

[80]        
The defendant correctly points out that Dr. Powers’ opinions are not
particularly helpful and do not tend to be supported by some of the test
results gathered by Dr. Powers and his assistant. For example, Dr. Powers did
not complete a transferable skills analysis which would have identified the
skills and experience of Mr. Bansi which could transfer to an occupation other
than that of construction manager or superintendent. There are no
recommendations or opinions indicating positions other than in the construction
industry which would interest Mr. Bansi and allow him to take advantage of his
skills, education, experience and preferences.

[81]        
I should also point out that Dr. Powers was assessing Mr. Bansi “as he
is”, that is, with his current injuries, depression and anxiety. Based on the
evidence of Dr. Caillier in particular, there could be improvement in Mr.
Bansi’s depression and mood following counselling and improvements in that
regard will assist him in his pain management and could allow Mr. Bansi to
perform those tasks which in recent years have been difficult.

[82]        
Mr. Bansi is intelligent and as mentioned above, is a university
graduate. This fact no doubt reinforced Dr. Powers in his opinion expressed at
p. 7 as follows:

Mr. Bansi stated in an interview
he has a strong interest in pursuing post secondary education in the field of
project management, such as the Bachelor of Construction Management program
offered through BCIT which would open up alternative employment venues to that
of self-employment in residential home building…

Dr. Powers goes on to discuss the cost of the program as approximately
$10,000 or less, depending on the candidate’s previous qualifications. He
concludes that such a program would expand vocational options for employment
that would be more suitable to Mr. Bansi’s limitations.

[83]        
Dr. Powers’ recommendation is likely a good option for Mr. Bansi but
fails to consider other occupations for which, based on the test results
compiled by him, would likely be more suitable for Mr. Bansi considering his experience,
education and accommodating his injuries. This omission leaves me in a bit of a
vacuum as to how to assess future economic loss, which is always an estimate at
best. Mr. Bansi could very well be suited to well-paying occupations which are
more accommodating to him considering his injuries.

[84]        
Clearly Mr. Bansi has been rendered less capable overall as a result of
his injuries and, based on the medical-legal evidence, it is clear that symptoms
of his injuries will continue. He is also less marketable than he would have
been prior to these accidents. I also take into account the likelihood that
although some injuries will likely be permanent, there is a reasonable prospect
that Mr. Bansi’s condition will improve, both physically and emotionally.

[85]        
Considering the criteria for assessing loss of future earning capacity
as set out in Brown v. Golaiy, which includes a capital asset approach
as opposed to an income approach, the uncertainties facing Mr. Bansi and
his health and the rather incomplete opinions of Dr. Powers, I am prepared to
make an award of loss of future earning capacity of $65,000.

COST OF FUTURE CARE

[86]        
The decision of the Court of Appeal in Aberdeen v. Zanatta, 2008
BCCA 420, 84 B.C.L.R. (4th) 220, recently reviewed the authorities regarding an
assessment of the cost of future care, including Andrews v. Grand & Toy
Alberta Ltd. [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452, Thornton v. School
District No. 57 (Prince George) [1978] 2 S.C.R. 267, 83 D.L.R. (3d) 480,
and Milina v. Bartsch, 49 B.C.L.R. (2d) 33, [1985] B.C.J. No. 2762
(S.C.), aff’d 49 B.C.L.R. (2d) 99, [1987] B.C.J. No. 1833 (C.A.) [Milina cited
to QL]. In Milina, McLachlin J., as she then was, quoted from Andrews
and stated at paras. 198-199:

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

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

and at para.
201:

[201]    …The award for cost
of care should reflect what the evidence establishes is reasonably necessary to
preserve the plaintiff’s health. At the same time, it must be recognized that
happiness and health are often intertwined.

[87]        
The first item claimed is the cost of a chronic pain clinic which has
been recommended by Dr. Caillier. Ms. Burns also made reference to such a
program or counselling and that this may benefit Mr. Bansi. Based upon all of
the evidence, there is a clear medical justification for the cost of a pain
clinic. The evidence is that an initial assessment would cost $2,500 plus HST
and that the program itself would cost up to $11,060 plus HST.

[88]        
The defence expresses concern hinging on evidence from Dr. Caillier that
pain programs typically have a psychologist and psychiatrist available and as a
result the content of a pain program may cross over into the claim for the cost
of a psychological assessment and counselling, which is another item claimed by
Mr. Bansi. As well, the defence claims that there has not been an opinion from
a “qualified expert” as to what sort of program the plaintiff may need.

[89]        
I have no hesitation in granting judgment for the cost of the assessment
and the estimated cost of the pain control program which will be included in
the lump sum I will set out below. Considering Dr. Caillier’s qualifications
and her work experience, it is evident that she deals with pain issues with
many of her patients and is most qualified to determine whether a patient is a
good candidate for a pain clinic. Also, the costs as presented through the
report of Dr. Powers appear to be reasonable.

[90]        
The second item claimed is the cost of a psychological assessment and
treatment which have been recommended by Dr. Caillier. Again, the defence takes
the position that there is no opinion from a qualified psychiatrist or
psychologist as to whether the assessment and in turn any treatment is
justified and reasonable. This argument relates more forcefully to the treatment
costs, since any treatment program could only be determined after a complete
assessment. In the circumstances it is clear to me that the recommendation by
Dr. Caillier for an assessment meets the test to prove such a head of damages
although I agree with counsel for the defendant that any costs relating to
treatment are too uncertain and vague to be included in this head of damages.

[91]        
Thirdly, Mr. Bansi claims for ongoing treatment for physiotherapy and
acupuncture and ongoing medication for pain, presuming it will take some time
to obtain treatment through a pain clinic and there is a possibility Mr. Bansi
will have to continue with medication in any event, even if he obtains
treatment at a pain clinic.

[92]        
Again, an award for the costs of future care are not always calculable
as the extent of future care required will always be an estimate. Overall, for
each of the items referred to for future care, I find the plaintiff entitled to
a further $25,000.

[93]        
In conclusion, the plaintiff is entitled to the following damages:

a)       Non-pecuniary
damages of $75,000

b)       Past
loss of opportunity of $20,000

c)       Special
damages of $11,413.34

d)       Future
economic loss of $65,000

e)       Cost of
future care of $25,000

[94]        
The defendant has shown a failure on the part of the plaintiff to
mitigate his loss and accordingly these awards will be adjusted downwards by
10% of the awards.

[95]        
The plaintiff will be entitled to costs under Scale B.

“Jenkins J.”