IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120423

Docket: M084875

Registry:
Vancouver

Between:

Mohan Singh Sidhu

Plaintiff

And

Chintjit Kaur
Johal and Paramjit Kaur Sandhu

Defendants

Before:
The Honourable Madam Justice Fitzpatrick

Reasons for Judgment

Introduction

[1]            
The plaintiff Mohan Singh Sidhu was injured in a motor vehicle accident
on May 30, 2007, arising from a collision between his vehicle and the vehicle
driven by the defendant Chintjit Kaur Johal and owned by the defendant Paramjit
Kaur Sandhu. Liability is admitted by the defendants.

[2]            
Mr. Sidhu maintains that while most of his soft tissue injuries
have resolved, he still suffers from back pain as a result of the accident.  He
seeks judgment under various heads of damages: non-pecuniary damages; past wage
loss/loss of opportunity; diminishment of earning capacity; past and future
loss of housekeeping capacity; cost of future care and special damages.

[3]            
The issues raised by the defence relate to the determination of the
severity of the injuries suffered by Mr. Sidhu and the impact of those
injuries on Mr. Sidhu, particularly to the extent that those injuries are based
on the subjective complaints of Mr. Sidhu.  The defendants say that the
damage award must reflect that the injuries were resolved shortly after the
accident or alternatively, were relatively minor in nature and should resolve
in the near future.

Background Facts

Before the Accident

[4]            
Mr. Sidhu was born in India and is presently 49 years of age. While
in India, he completed a high school education and attended college.  He
immigrated to Canada in December 1980, when he was 18 years old.  After
arriving in Canada, he obtained his high school equivalency in 1982 and also
took courses at BCIT shortly thereafter.

[5]            
Mr. Sidhu commenced employment in 1981 working as a part-time
dishwasher at a Denny’s restaurant in Richmond while he was also going to
school.  He soon worked his way up in the organization and ultimately, in 1989,
he became a manager of the Coquitlam restaurant.  In 1992, Mr. Sidhu
decided to start his own business and he subsequently bought a Pantry Family
Restaurant franchise which he owned and operated in North Delta with his
brother until 1996.  In 1996, Mr. Sidhu decided to change his restaurant
operation from the Pantry Family Restaurant back to Denny’s. Mr. Sidhu
recently bought out his brother and presently, he and his wife own 80% of the
restaurant.  His general manager owns the remaining 20% interest.  At the date
of the accident, in addition to general restaurant management, Mr. Sidhu only
worked as the on-site manager of his restaurant on Saturdays.

[6]            
In June 2000, Mr. Sidhu also began a career as a longshoreman. 
There are three boards that establish various ranks for longshoremen.  Workers
begin on the Surplus Board, then move to the Casual Board at levels A through
H, and finally, and hopefully, reach the highest level, attaining union
membership.  He began working on the Surplus Board which involved, for the most
part, labour jobs.  Mr. Sidhu eventually moved up in seniority, becoming a
member of the Casual A Board in 2004 or 2005, and eventually becoming a union
member in October 2009.  At the time of the accident, Mr. Sidhu was a
member of the Casual A Board doing checking jobs and he continues to do checking
jobs at this time.  Checking does not involve heavy labour.

[7]            
It is important for a longshoreman to work his way through the various
board levels given that the levels dictate the quality of the work that is
received by the employees.  Union membership affords the longshoremen more
control over the hours worked and the ability to work what are considered
premium shifts.  Benefits are payable to employees only upon reaching the
Casual A Board.

[8]            
Mr. Sidhu has been married for approximately 23 years to Parminderjit
Sidhu. They have three children, a son and a daughter who are both in
university, and a 17-year-old daughter who is in Grade 12.  They live in
Richmond, British Columbia.

[9]            
Mr. Sidhu contends that injuries arising from the accident in
question include headaches, dizziness, driving anxiety, neck pain, left
shoulder pain, pain in his ribcage or chest area, and back pain. 
Mr. Sidhu says that in the two years prior to the accident in May 2007, he
experienced no such symptoms.

[10]        
It is conceded that Mr. Sidhu was involved in motor vehicle accidents
prior to 2007.  In 1991, his vehicle was hit by a pickup truck as a result of
which his car was written off.  He was injured, with lower back and neck
injuries.  He eventually recovered after being off work for about two years.  A
further accident occurred in 1998 when his vehicle was rear ended.  He
sustained injuries at that time to his shoulder, neck and back.  It took
approximately one year to recover from those injuries.

[11]        
In addition to the motor vehicle accidents, Mr. Sidhu suffered two
work-related injuries prior to the 2007 motor vehicle accident.  In 2001, he
suffered an injury to his shoulder, which resulted in him being off work for
two to four weeks.  The second injury occurred in the summer of 2006, when he
twisted his right hand and was subsequently off work for two weeks.  The
symptoms from this hand injury lasted for two to three months.  Mr. Sidhu
contends that he had fully recovered from both of these accidents by 2007.

The Accident

[12]        
The motor vehicle accident in question occurred on May 30, 2007.  Late
in the afternoon, Mr. Sidhu was driving his 1998 Honda Accord southbound
on 120th Street (Scott Road) in Delta, B.C.  It appears that Ms. Johal
made a left turn into a shopping mall while travelling northbound on 120th
Street at which time the collision with Mr. Sidhu’s vehicle occurred. 
Ms. Johal’s vehicle hit the driver’s side of Mr. Sidhu’s vehicle and
Mr. Sidhu described the impact as “very strong”.  In fact, Mr. Sidhu’s
vehicle was pushed at about a 45-degree angle from its original path of travel
and he was unable to open the driver’s door as it was jammed.  He was only able
to exit the vehicle with assistance through the passenger door. 
Mr. Sidhu’s vehicle had to be towed away.

[13]        
Eventually, the general manager of his Denny’s restaurant picked him up
from the scene and took him back to the restaurant to rest.  Mr. Sidhu’s
wife later picked him up from the restaurant and drove him home.  He did not
attend at any hospital or receive any medical assistance that day.

After the Accident

[14]        
Mr. Sidhu contends that he suffered multiple injuries in the accident,
as follows: headaches, dizziness, driving anxiety, injury to his ribcage/chest
area, a musculo-ligamentous injury to the cervical spine and injury to the left
shoulder, all of which have now resolved.  However, he also contends that he
suffered from a musculo-ligamentous injury to the lumbar region of the spine
(or back) which is still painful and symptomatic at this time.

[15]        
At trial, Mr. Sidhu described the various symptoms that he suffered
immediately following the accident.

[16]        
He describes having driving anxiety in that he was afraid of getting hit
again, a matter that was confirmed by the evidence of his wife.  Accordingly,
for the first few days, his wife drove him to various medical appointments. 
Eventually he began driving again.  He was driving by the time he went back to
work in late July 2007, although he described having a lingering fear of
driving until that time.

[17]        
He says that, following the accident, he got headaches first thing in
the morning, which were quite severe for a few days.  Treatment included rest
and Advil.  Those headaches lasted from a few weeks to two months.

[18]        
Mr. Sidhu describes the pain in his neck, which began the day after
the accident, as severe and constant.  He described the pain in his neck and
shoulder areas as lasting for approximately six months.  After six months, the
pain was not as constant but was resolved totally within the year.  Similarly,
the pain in his ribcage or chest, which approximates where his seatbelt would
have crossed his body, caused pain which again is described as both severe and
constant.  He says that that pain was very constant in the first two weeks but
gradually went away and was fully resolved in six months.

[19]        
By far, the back pain experienced by Mr. Sidhu is the most
significant injury.  He describes his pain as being very “severe, sharp, and
constant”.  He says that this pain began the morning after the accident.

[20]        
In the first days after the accident, Mr. Sidhu saw his family doctor,
Dr. Gandham, regarding his injuries.  Dr. Gandham recommended that Mr.
Sidhu take over-the-counter medication, Robaxacet.  Dr. Gandham also
recommended that Mr. Sidhu see a physiotherapist.  Mr. Sidhu did see a
physiotherapist in June and July 2007, with the last visit taking place on July
24, 2007.

[21]        
As a result of this pain, Mr. Sidhu says that he did not work for
approximately two months after the accident.  He says that during that time,
his back pain was constant and severe.

[22]        
Mr. Sidhu continued to see Dr. Gandham on an almost weekly basis
after the first visit.  When he returned to work in late July 2007, he
described the pain as still being present and he still described this pain as
constant and severe and occurring on a daily basis.  Dr. Gandham advised
him to stay active with an exercise program.  Mr. Sidhu began personal training
sessions in late 2007.

[23]        
The evidence of Mr. Sidhu at trial as to his recovery from his back
injury can be described as follows:

·      
August 2007 to December 2007:  Mr. Sidhu has constant severe
daily pain.

·      
January to June 2008:  Mr. Sidhu is still experiencing back
pain daily.  Mr. Sidhu is taking Advil a number of times per day.  The
pain is not as severe at this time but is still enough to affect
Mr. Sidhu’s lifestyle.

·      
July to December 2008:  Mr. Sidhu’s symptoms are still the
same but the exercise program is helping.  Pain is still there and severe.

·      
January to June 2009:  Mr. Sidhu still has back pain but not
daily.  The exercises are assisting and Mr. Sidhu at this time began to
take Bikram’s yoga.  He is still taking Advil three to four times a week,
depending on the pain and the pain is still described when present as being
“severe”.

·      
July to December 2009:  Mr. Sidhu is continuing to take
Bikram’s yoga to help with the pain.  The pain is now not as constant in that
it occurs only three to four times per week.  He is still describing the pain
at this time as “severe” when it is present.

·      
January to June 2010:  Mr. Sidhu describes the back pain as
continuing.  He is still taking yoga lessons but still experiencing pain some
three to four times per week arising from “flare ups” which are described as
still “severe”.

·      
July to December 2010:  Mr. Sidhu describes the pain as
still existing.  He is still unable to sit or stand for too long.  Depending on
the level of his activity, he can experience “sharp” pain three to four times
per week.

·      
January to April, 2011:  His symptoms have plateaued in the sense
that he saw no improvement in his symptoms from that time forward.  Mr. Sidhu
describes himself as still living with back pain.  He has tried to change his
lifestyle to include exercise and to be generally more active, but the pain is
still there.  He is still taking Advil about three to four times per week but
the pain can be “sharp” at times.

[24]        
Mr. Sidhu began taking Bikram’s yoga classes in May 2009.  He began
taking lessons three to four days a week and by 2010 was taking sessions two or
three days per week.  As of the April 2011 trial dates, he had purchased yoga
sessions that would take him well into 2011.

[25]        
Mr. Sidhu was referred to a physical medicine and rehabilitation
specialist, Dr. Hershler in late 2009.  At the suggestion of Dr. Hershler,
Mr. Sidhu began taking personal training sessions again with Mr. Siqueira,
having completed some earlier sessions on the advice of Dr. Gandham in 2007.  His
first session with Mr. Siqueira took place in January 2010, at which time the
trainer designed a program for him.  This program was designed to alleviate
Mr. Sidhu’s complaints about lower back pain and in particular, was
intended to strengthen his core muscles.  The personal training sessions took
place through to May 2010, and some follow-up sessions took place in December
2010 and January 2011.

[26]        
Throughout 2010, Mr. Sidhu was also, on the recommendations of
Dr. Hershler, continuing to do various exercises at home.

[27]        
As of 2011, Mr. Sidhu’s treatment regimen has consisted of yoga two
or three times per week, an exercise routine at home, and taking medication
when he has pain.  He contends that his pain is always there but the exercises
help to manage the pain.  This treatment plan is based in part on the advice of
Dr. Gandham who, commencing immediately following the accident,
recommended that he treat his symptoms with exercise and medication as needed.

[28]        
On the recreational front, Mr. Sidhu indicates that his injuries
have prevented him from an outdoor soccer recreation day that he normally
organized for his family every year.  He has also been unable to go with his
family to the water slides at Cultus Lake.  He and his wife also normally
attended various sports activities of his children including practices, games
and tournaments.  He indicated that when he did attend these events, the back
pain bothered him in relation to sitting or standing such that he brought a
special chair to sit on.  I note, however, that Mr. Sidhu’s youngest child
is now 17 years old and it is likely that attendance at these events will
lessen or cease in the future, just as it has for his two older children.

[29]        
Mr. Sidhu also indicates that his back pain has affected him on
trips involving long flights.  He and his wife enjoyed trips to the United
Kingdom and India in 2008 and a subsequent trip to the United Kingdom, and
finally, a trip to Fiji and Australia in December 2010.  He indicated that
these longer flights caused him great discomfort and pain.

[30]        
Mrs. Sidhu was called by her husband to give evidence on the outward
signs of pain he was experiencing after the accident. She says that immediately
following the accident she observed him taking Advil every four hours for pain.
He would also wake up in the middle of the night to take more medicine or
stretch and this lasted for a period of up to one and a half years after the
accident.  In the daytime, she said that she would also observe him taking
Advil and stretching on a regular basis.  She also observed in the yoga classes
that they took together that he was not able to complete certain poses
involving his lower back.  She confirmed his evidence about the curtailment of
some of his social activities, difficulty with travel and also added that since
the motor vehicle accident, he can no longer go shopping.  Finally, she gave
evidence regarding Mr. Sidhu’s contention that he can no longer help with the
vacuuming around the house.

The Medical Evidence

Dr. Satnam Gandham

[31]        
Dr. Satnam Gandham gave evidence on behalf of Mr. Sidhu. 
Dr. Gandham is Mr. Sidhu’s family physician and has been since
January 1991.  Dr. Gandham did not provide an expert report but his
extensive clinical notes were admitted into evidence and discussed at length by
Dr. Gandham.

[32]        
Dr. Gandham was aware of Mr. Sidhu’s injuries from the 1991
and 1998 motor vehicle accidents when Mr. Sidhu suffered injuries to his back.  Dr.
Gandham initially confirmed that shortly after those accidents, Mr. Sidhu
was no longer seeing him for any symptoms arising from those accidents.  Dr.
Gandham was also aware of and treated the shoulder injury that Mr. Sidhu
sustained at his work in 2001.  Shortly after that accident, on July 24, Dr.
Gandham examined Mr. Sidhu in respect of that injury and also noted in his
records at that time complaints by Mr. Sidhu of “lower back pains …
especially when working on the booms – docks … lots of bending etc.”.  Mr.
Sidhu explains that this was at the time when he was working on mostly labour
jobs as a longshoreman but that he had no lower back pain when he began moving
into the checking jobs, as is discussed in more detail below.

[33]        
Leaving aside that note, Mr. Sidhu’s evidence is that he had fully
recovered from his back injuries within one or two years after those accidents,
which would mean a full recovery no later than 2003, well before the motor
vehicle accident in question.

[34]        
Dr. Gandham saw Mr. Sidhu the day following the accident on
May 31, 2007.  At that time, he took a full history and noted that
Mr. Sidhu was complaining that his whole body was stiff.  He also
complained of nausea, headaches, neck and back pain.  On this day, Dr. Gandham
confirmed that he completed the normal examination procedures, including
subjective and objective findings, an assessment and treatment plan (known by
its acronym, SOAP).  He confirms that objectively, there was a full range of
movement and no muscle spasms, tenderness on palpitation, or spine
deformities.  Accordingly, he concluded that there were no objective signs of
injury.  Nevertheless, given that Mr. Sidhu was complaining of pain,
Dr. Gandham then looked for objective indications that he was experiencing
this pain.  Dr. Gandham indicated that as part of his examination he would
have watched Mr. Sidhu’s expression while doing the movements and looked
for consistency.  He would watch how he sits, stands, gets up and leaves the
room.  Not infrequently, Dr. Gandham would watch patients in the hallway to
determine whether their actions were consistent.  Ultimately, Dr. Gandham
diagnosed Mr. Sidhu on May 31, 2007 with a neck and lower back sprain.  He
recommended that Mr. Sidhu take Robaxacet, an over-the-counter medication
which is both an analgesic and a relaxant.

[35]        
There was no determination by Dr. Gandham at this time that
Mr. Sidhu needed to take time off work arising from the accident.  Nevertheless,
Mr. Sidhu did not return to his longshoreman job.

[36]        
Mr. Sidhu returned to see Dr. Gandham on June 1, 2007, complaining
that he was now worse.  He said that his whole body was stiff and that he was
still suffering neck and lower back pain.  Another full examination was
completed which again indicated no objective abnormalities.  Again,
Dr. Gandham recommended over-the-counter medications such as Advil or
Tylenol.  He also recommended physiotherapy, referring specifically to muscle
strengthening and stretching exercises with a plan for early work return.  At
that time, Dr. Gandham’s initial optimism regarding the severity of Mr.
Sidhu’s injuries continued in that he thought that Mr. Sidhu would be off
work for two weeks.

[37]        
Visits by Mr. Sidhu to Dr. Gandham continued throughout June 2007
for a total of four visits.  During this time, Dr. Gandham did further
full examinations of Mr. Sidhu and confirmed his previous diagnosis.  He
noted no objective signs of injury.  He continued to recommend exercise,
physiotherapy and over-the-counter pain medication.  By June 8, 2007,
Mr. Sidhu was back at his restaurant job and consistent with his earlier
assessment, Dr. Gandham anticipated that Mr. Sidhu would be back at his
longshoreman job by June 18.

[38]        
Mr. Sidhu continued to visit Dr. Gandham throughout July 2007
for a total of three visits.  The notes of the July 3 visit indicated no
complaints regarding the neck.  A later visit on July 9 resulted in a continued
referral for physiotherapy by Dr. Gandham that re-emphasized the same treatment
(strengthening and stretching exercises) with the intention that Mr. Sidhu
would return to work in three weeks.  There was some worsening from the initial
examination but by the July 23 visit, Dr. Gandham noted that the lower
back pain was 75% better and that Mr. Sidhu should probably be able to
return to work by July 30.

[39]        
By early August 2007, Mr. Sidhu had returned to work but he was
still complaining of lower back pain.  Dr. Gandham saw Mr. Sidhu three
times in August.  The same treatment was recommended.  On August 31,
Dr. Gandham was advised by Mr. Sidhu that he was going to see a personal
trainer, following which Dr. Gandham recommended that he see the trainer for
six weeks to strengthen his core, including his lower back muscles, with the
intention that after those sessions, Mr. Sidhu could complete an exercise program
on his own.

[40]        
In his medical report to ICBC on September 28, 2007 following a visit by
Mr. Sidhu, Dr. Gandham indicated a diagnosis of a Grade II neck and lower back
sprain after recording Mr. Sidhu’s subjective complaints of pain in the lumbar
spine area and objective findings of full range of motion with some pain.  This
was acknowledged by Dr. Gandham to be based on Mr. Sidhu’s subjective
complaints of pain, but tested against his normal procedures in making
objective findings based on whether these complaints were consistent.  His
treatment plan confirmed the previous recommendation of the physiotherapy
sessions.  Dr. Gandham also confirmed that the personal trainer was to continue
for one more week.  Dr. Gandham indicated that Mr. Sidhu was not prevented from
working his full duties, full time and that in fact, he had returned to his
restaurant job in early June 2007 and his longshoreman job on July 29, 2007.  Finally,
Dr. Gandham indicated that Mr. Sidhu was capable of carrying out his non-work
activities.

[41]        
By September 28, 2007, Dr. Gandham noted that Mr. Sidhu’s neck
was fine “now” and that the only condition being treated was the lower back
condition.

[42]        
Four more visits to Dr. Gandham occurred from October to December 2007.

[43]        
By October 2007 and following to December 2010, all of
Dr. Gandham’s sessions with Mr. Sidhu were essentially the same and
based on the SOAP procedures.  There would be a complaint by Mr. Sidhu of lower
back pain and Dr. Gandham would complete the same testing, including looking at
range of motion and seeing whether there were spasms, tenderness on palpation
or spine abnormalities.  These tests did not indicate any abnormalities.  Treatment
recommendations would always include exercise, over-the-counter pain
medication, and what Dr. Gandham called “back care”.  Essentially, “back
care” involved avoiding certain movements such as twisting, heavy lifting, or
repetitive exercises.

[44]        
By December 10, 2007, Dr. Gandham described the lower back pain as
“generally better”, noting that there was full range of motion although with
pain.

[45]        
Mr. Sidhu continued to regularly visit Dr. Gandham, seeing him ten times
in 2008.  On September 10, 2008, Dr. Gandham noted that the “upper back, neck
resolved”.  In October 2008, Dr. Gandham wrote a note to Mr. Sidhu advising him
to continue exercising for his lower back.

[46]        
Mr. Sidhu continued to regularly visit Dr. Gandham, seeing him nine
times in 2009.  On April 16, 2009, Dr. Gandham prescribed the only prescription
medicine (Ibuprofen) relating to Mr. Sidhu’s complaint of pain that day.  The
notes on this date refer to complaints by Mr. Sidhu of ongoing lower back pain
and a reference to work and gardening.  Dr. Gandham again found full range of
motion and slow painful low back movements.  By June 2009, Mr. Sidhu advised
Dr. Gandham that he was going to yoga classes.  Dr. Gandham agreed that
yoga would be helpful and on September 25, 2009, he recommended that Mr. Sidhu
continue with the Bikram’s yoga based on advice from Mr. Sidhu that he found it
helpful.

[47]        
Mr. Sidhu’s regular visits to Dr. Gandham abated somewhat in 2010, with
only five visits.  On April 7, 2010, Dr. Gandham again found full range of
motion and slow painful low back movements.  At his last visit on December 3,
2010, Dr. Gandham’s basic message to Mr. Sidhu had not changed for the last three
years since the fall of 2007; in other words, he continued to recommend “back
care”.  Mr. Sidhu confirmed on that date his view that yoga helped him.

Peter Lamla (Lansdowne Physiotherapy)

[48]        
As noted above, Dr. Gandham referred Mr. Sidhu for physiotherapy shortly
after the accident.  He engaged Peter Lamla of Lansdowne Physiotherapy for that
purpose.

[49]        
Mr. Lamla’s first visit with Mr. Sidhu occurred on June 4, 2007, just
days after the accident.  At that time, Mr. Lamla conducted a SOAP
assessment/plan, similar to what Dr. Gandham did.  On the subjective side, Mr.
Sidhu completed a diagram which indicated pain in the lower back and neck and
shoulder area.  Mr. Lamla noted that Mr. Sidhu was already reporting that his
pain had diminished from what he had experienced just after the accident.  Further,
he noted that Mr. Sidhu’s symptoms eased with rest, medication, exercise and
heat.  Sitting, standing and walking all increased pain.  Objectively, Mr.
Lamla noted some spasms in the low lumbar spine and some tenderness on
palpation.  Mr. Sidhu’s weak core muscles and tight hamstring and quadriceps
muscles, and the fact that Mr. Sidhu was overweight, were noted by Mr. Lamla as
factors that would predispose someone to back pain and prolong a back injury.

[50]        
Overall, Mr. Lamla’s analysis was that Mr. Sidhu had suffered a moderate
soft tissue injury.  He also concluded that Mr. Sidhu was overweight and
exhibited poor posture and poor fitness.  He applied some treatments at the
session and recommended exercises.

[51]        
Visits to Mr. Lamla continued every few days for the remainder of June.  During
the June 6 and 8 visits, Mr. Sidhu said his back was getting better.  A small
amount of neck pain was evident on June 6 but by June 15, Mr. Sidhu advised
that his neck was “OK” and treatments to the neck stopped.  On June 15, Mr.
Lamla noted that Mr. Sidhu was definitely better although there was occasional
back pain.  On June 20, the back was continuing to improve but Mr. Sidhu was
complaining about occasional back pain with walking more than half an hour.  On
June 25, Mr. Sidhu was said to have advised Mr. Lamla that he was better.

[52]        
By July 9, 2007, Mr. Sidhu said he was feeling better.  Mr. Lamla felt
he was getting better but not fast enough.  He had concerns surrounding Mr.
Sidhu’s overall fitness and conditioning which resulted in Mr. Lamla
recommending he get active at the gym.  There were only four more visits to Mr.
Lamla.  On July 11, Mr. Sidhu reported that he was good but had lower back pain
with walking a lot.  On July 19, Mr. Sidhu advised that the lower back was
“definitely better”.  The last visit was on July 24, 2007 when Mr. Sidhu
advised that he was much better.  He was discharged from physiotherapy with a
home exercise program and a recommendation that he lose weight and improve his
overall fitness.  Despite the offer to see him again, Mr. Sidhu never followed
up with Mr. Lamla in terms of any further problems.

[53]        
Mr. Lamla’s decision to discharge Mr. Sidhu from the sessions was based
not only on the substance of the reports from Mr. Sidhu but also the positive
trend he saw in the improvements being made over time following the treatment
of Mr. Sidhu’s symptoms, both by Mr. Lamla and by Mr. Sidhu himself.

[54]        
The accuracy of Mr. Lamla’s note taking was raised at the trial.  Mr.
Lamla indicated that his notes regarding the physiotherapy sessions were set
out in his records either immediately after he saw a patient or at the end of
the day.  However, the subjective elements of his testing, including recording
comments of Mr. Sidhu, were noted contemporaneously after being advised by Mr.
Sidhu.

[55]        
I am satisfied that Mr. Lamla’s notes are an accurate record of his
sessions with Mr. Sidhu.

Andre Siqueira

[56]        
Mr. Siqueira describes himself as a “post rehabilitation fitness
trainer”.  Mr. Siqueira did not give evidence at the trial.

[57]        
Mr. Sidhu put into evidence a “Fitness Report” of Mr. Siqueira dated
July 22, 2010.  I was advised that this report was created for review by his
expert, Dr. Hershler in terms of the doctor’s examination and second assessment
of Mr. Sidhu later that very day.

[58]        
Mr. Siqueira saw Mr. Sidhu from January 8 to June 16, 2010 and made
various observations.  The report purports to be a summary of Mr. Siqueira’s
physical findings in relation to Mr. Sidhu, along with an assessment of his
increase in strength and flexibility over the time of the visits to him.  In
particular, Mr. Siqueira made certain findings relating to Mr. Sidhu’s range of
motion and found that it was restricted.  Mr. Siqueira also reports on what Mr.
Sidhu advised him regarding his pain tolerance and the presence of pain. 
Finally, Mr. Siqueira provides his opinion that Mr. Sidhu should continue to
see a fitness trainer.

[59]        
There are various difficulties with this “report”.  Mr. Siqueira’s
records were agreed by the parties to be business records and as such, his
observations and findings on the physical examinations were admitted for the
truth of their contents.  Nevertheless, Mr. Siqueira, although describing
himself as a “post rehabilitation fitness trainer”, did not set out any of his
qualifications that would allow this Court to understand or assess his ability
to observe a client and provide “physical findings”.

[60]        
In addition, his findings regarding a restricted range of motion are
contradicted by the findings of Dr. Hershler in his second report even though
the dates of each report are only a day apart.  These findings of a restricted
range of motion are similarly contradicted by the findings of Dr. Gandham in
that respect, based on tests he performed during 2010.  Although it is unclear
from his report whether Mr. Siqueira found tightness in the back (along with
the hamstrings and IT band), this is also contradicted by Dr. Hershler’s own
findings that there was no tightness in the back during his examination on July
22, 2010.

[61]        
I do not accept the “findings” of Mr. Siqueira to the extent that they
are contradicted by the examination results of either Dr. Hershler or Dr.
Gandham.

[62]        
Mr. Siqueira also made certain treatment recommendations that Mr. Sidhu
should continue with his training.  No basis was provided for the conclusion
that there was a need for future personal training sessions, beyond Mr.
Siqueira’s opinion.  The report was not introduced as opinion evidence and any
such opinion is inadmissible.

[63]        
Lastly, the relaying of subjective advice from Mr. Sidhu concerning his
pain is hardly admissible for the truth of those matters.

[64]        
In the circumstances, I agree with the submissions of the defence that
there is little weight to be put on this report, save to the extent that it
confirms that the training sessions occurred and also save as it relates to Mr.
Siqueira’s objective observations relating to Mr. Sidhu’s physical condition,
unless contradicted by the medical evidence.

Dr. Cecil Hershler

[65]        
Dr. Hershler was called by Mr. Sidhu and he was the only medical expert
called as a witness at the trial.  He is a specialist in physical medicine and
rehabilitation and has been practising in Vancouver since 1985.  There was no
objection to his qualifications.  His practice involves the treatment of
chronic muscular skeletal conditions and chronic pain related to those
conditions.

[66]        
Dr. Hershler provided two reports, each following visits by Mr. Sidhu,
on December 17, 2009 and July 22, 2010.  Accordingly, the first visit occurred
some two and a half years following the accident.

[67]        
At each visit, Dr. Hershler conducted a physical examination which
lasted between one hour and one and a half hours.  Mr. Sidhu’s subjective
complaints were noted and Dr. Hershler stated, not surprisingly, that he relied
heavily on the accuracy and honesty of this type of information from his
patients, including Mr. Sidhu.  Notwithstanding Mr. Sidhu’s complaint of
tightness and discomfort and Dr. Hershler’s own observation of tension, he
found a full range of motion and no evidence of tenderness or spasm in the
spine or muscles.  Mr. Sidhu’s complaints of pain were mainly historical in
that Mr. Sidhu did not complain of pain during the examinations.  There was no
evidence of any neurological injury.

[68]        
Dr. Hershler’s diagnosis was one of mechanical low back pain,
“mechanical” meaning that the weak core muscles in the back were inhibited from
firing and controlling movement of those muscles.  He found that:

The pain is episodic and is
triggered by certain activities (prolonged sitting or standing, lifting or
carrying, running), indicating that [Mr. Sidhu] has developed a weakness in the
core muscles of the low back. He is able to manage the pain reasonably well so
long as he maintains a certain level of exercise (three-to-four sessions weekly
of Bikram’s Yoga or cardio workouts), but the exercise has not resulted in any
resolution of the low back pain. It is still triggered by the aforementioned
activities.

[69]        
Dr. Hershler indicated that in his opinion, the low back pain (with
resulting core weakness) was caused by the motor vehicle accident in May 2007.

[70]        
Dr. Hershler’s prognosis was that Mr. Sidhu would continue for the
foreseeable future to experience this low back pain, but that further effort
should be made to work on specific core exercises, through sessions with a
personal trainer once a week for six months.  He also recommended that he
continue with the Bikram’s yoga two to three times per week.  Dr. Hershler was
also of the view that Mr. Sidhu could continue his job as a checker since he
was not required to sit or stand for long periods of time and he had the
ability to stand, stretch and move around to enable him to avoid any pain.

[71]        
At the follow-up visit some seven months later in July 2010, Dr.
Hershler noted improvement following the 18 sessions with a personal trainer
and also the Bikram’s yoga sessions completed by Mr. Sidhu.  Dr. Hershler’s
prognosis was similar to the previous report – that Mr. Sidhu’s condition
would continue for the foreseeable future, with Mr. Sidhu having been able to
return to his pre-accident work activities and that Mr. Sidhu would continue to
be able to do so provided he maintained his exercise regimen.  Dr. Hershler
did, however, state that Mr. Sidhu would remain limited in his ability to do
the heavy physical labour type jobs.

[72]        
Finally, he recommended that Mr. Sidhu see a fitness trainer about four
times a year (for “scrutiny” to ensure that he was continuing to do his core
exercises properly) and that he attend yoga two to three times a week.  On
cross-examination, Dr. Hershler confirmed that his view was that the yoga was
not specific enough for the core muscles and that the addition of the exercises
to be learned through a personal trainer was important.

[73]        
On cross-examination, Dr. Hershler agreed that he relied heavily on his
patients to give an accurate history and also relay symptoms in an accurate
manner.  To that extent, the subjective information from Mr. Sidhu was
foundational in respect of his assessment.

[74]        
Dr. Hershler’s view was that if treated effectively, and the back heals,
the pain will improve over time.  Dr. Hershler stated that 80% of acute cases
resolve and heal within three years and a further 10% heal within five years.  By
“resolve”, Dr. Hershler means that the episodes become less frequent and pain
lessens to the point where the patient can return to full function.  Only 10%
have permanent symptoms.  He stated that there was still a chance that Mr.
Sidhu would resolve his symptoms, particularly with the exercise regimen
recommended.

Adverse Inference

[75]        
The defendants submit that since no medical legal report was tendered by
Dr. Gandham at the request of Mr. Sidhu, I should draw an adverse inference.

[76]        
The defendants cite Buksh v. Miles, 2008 BCCA 318 at
paras. 30-35, 296 D.L.R. (4th) 608.  Other cases addressing this topic
include: Bronson v. Hewitt, 2010 BCSC 169 at paras. 323-337, 58
E.T.R. (3d) 14 and Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2011
BCSC 762 at paras. 118-122.  In Buksh, at para. 31, the Court
cites from Barker v. McQuahe (1964), 49 W.W.R. 685 (B.C.C.A.) at 689,
that in a personal injury claim, the plaintiff “ought to call all doctors who
attended him in respect of any important aspect of the matters that are in
dispute, or explain why he does not do so.”

[77]        
In my view, this is not an appropriate case in which an adverse
inference should be drawn.  Dr. Gandham was called as a witness and testified
at length during the trial.  His clinical records were fully disclosed and
admitted into evidence at the trial:  see Bouchard and also
para. 35 of Buksh.  I am advised that Dr. Gandham was interviewed
by counsel for both parties prior to the trial.  It was fully open to the
defendants to seek a medical report from Dr. Gandham if they wished.

[78]        
I also note that the Court refused to draw an adverse inference in Foran
v. Nguyen, 2006 BCSC 605 at paras. 52-54, where the family doctor’s
clinical records were uncontroversial and were tendered into evidence.

[79]        
Finally, while not specifically stated by Mr. Sidhu’s counsel, it is
apparent that Dr. Hershler provided his report from the perspective of his
physical medicine expertise regarding these types of injuries, as opposed to
the more general family practice expertise of Dr. Gandham.  As was noted by the
Court in Bronson at para. 329, an adverse inference can only be
drawn if such testimony would be superior in respect of the facts to be
proved.  It is not apparent to me that Dr. Gandham’s opinion would have been
superior to that of Dr. Hershler in these circumstances.

[80]        
I decline to draw any adverse inference by reason of the fact that Mr.
Sidhu did not tender an expert report from Dr. Gandham.

Assessment and Conclusions re Injuries

[81]        
It is the position of Mr. Sidhu that he is experiencing episodic chronic
low back pain which continues to impact his vocational, recreational and
domestic activities.

[82]        
It is the position of the defendants that any injuries suffered by Mr.
Sidhu were soft tissue injuries that healed relatively soon after the accident
or alternatively, were relatively minor in nature and should resolve in the
near future.

[83]        
Mr. Sidhu’s credibility is very much in issue in this matter.  The
defence contends that Mr. Sidhu’s evidence contradicts his evidence given at
discovery and also contradicts statements he made to various healthcare
providers.  As such, they say that his evidence was selective and lacking
candour.  The defendants submit that Mr. Sidhu has clearly exaggerated the
duration and severity of his symptoms and that little weight should be attributed
to his evidence.

[84]        
The defendants rely on the oft-quoted comments of Chief Justice McEachern
(as he then was) in Price v. Kostryba (1982), 70 B.C.L.R. 397 at 399
(S.C.), as to the correct approach to assessing injuries which depend on
subjective reports of pain.  In referring to an earlier decision, he said:

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

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

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

[85]        
The principle from Price that the Court should approach the
evidence of an injured person in a case such as this with caution was recently
affirmed by the British Columbia Court of Appeal in Edmondson v. Payer,
2012 BCCA 114 at para. 2.

[86]        
In addition, factors to be considered when assessing credibility were
summarized by Madam Justice Dillon in Bradshaw v. Stenner, 2010 BCSC
1398:

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

[87]        
Throughout the cross-examination of Mr. Sidhu, counsel continually
challenged Mr. Sidhu in terms of his discovery evidence and the history of his
complaints to the various medical professionals as compared to his assertions
at this trial in terms of the severity of his symptoms and when, if ever, they
were resolved.

[88]        
There were numerous inconsistencies in Mr. Sidhu’s evidence.  While some
of the inconsistencies were not great, or alternatively, standing alone would
not have been conclusive, the number and degree of these inconsistencies
displays a certain pattern that puts Mr. Sidhu’s evidence into question.

[89]        
By the time of the trial, Mr. Sidhu indicated that his headache symptoms
had lasted for two months and that they were severe at the outset.  He took
Advil to help the pain.  Nevertheless, at his examination for discovery, he
indicated that he only had headaches for a few weeks and not months.

[90]        
His current contention is that he was suffering constant and severe
symptoms in his ribcage and chest for the first few weeks and that the pain
decreased over time and was resolved within six months.  This evidence at trial
was contradicted, to a minor degree, by his evidence at examination for
discovery when he said that it only lasted for two to six months.

[91]        
Regarding the neck and shoulder pain symptoms, Mr. Sidhu gave evidence
at trial that these were constant and severe for six months and were resolved
within a year.  Nevertheless, at his examination for discovery, he indicated
that these symptoms were resolved within six months to a year, a statement that
contradicts his evidence at trial.

[92]        
The physiotherapy records indicate that Mr. Sidhu advised Mr. Lamla that
his neck was “OK” by June 15, 2007, after having specifically treated the neck
area earlier in the month.  Mr. Lamla did not record any complaints regarding
the neck after that date and stated that he would have treated the neck if
complaints were continuing.  Similarly and consistent with Mr. Lamla’s notes,
Dr. Gandham’s notes indicate that Mr. Sidhu had stopped complaining about his
shoulder symptoms after June 1 and stopped complaining about his neck symptoms
after June 21, 2007.  A notation by Dr. Gandham on September 28, 2007 indicates
“neck fine now”.  Similarly, a notation on October 22, 2007 indicates “neck,
normal self now”.

[93]        
On cross-examination, Mr. Sidhu conceded that it was fair to say that
the day he stopped complaining to his doctor about neck pain was the time when
he stopped having neck pain.

[94]        
All of these records suggest that the neck and shoulder problems were
resolved within the first month or so, and were not “constant and severe” for six
months, as now contended by Mr. Sidhu at trial.

[95]        
Dr. Gandham’s records include an entry in September 2008 to the effect
that “upper back, neck resolved”.  Mr. Sidhu advances the proposition that this
meant that it was only on this date that these problems were resolved.  This
contradicts Mr. Sidhu’s own current evidence that these symptoms were resolved
no later than May 2008.  I do not see that entry as evidencing the fact that
these problems were resolved around September 2008 as opposed to some earlier
date.

[96]        
The clinical records of Dr. Gandham and Mr. Lamla are not the records of
Mr. Sidhu.  In light of that, the Court must have regard to the inherent
reliability – or unreliability – of these clinical records in terms
of forming an accurate record as to what actual symptoms Mr. Sidhu may or may
not have been experiencing at the time.  The significance of any statement
recorded, inconsistency or even absence of any recording must be considered
from a practical point of view in light of the circumstances in which these
notes were taken.

[97]        
In Edmondson v. Payer, 2011 BCSC 118, aff’d Edmondson v. Payer,
2012 BCCA 114, Mr. Justice N. Smith made the following observations:

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

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

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

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

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

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

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

[98]        
Mr. Sidhu suggests that the absence of any record in Dr. Gandham’s notes
regarding neck and shoulder pain complaints can be explained in that the doctor
must not have recorded them.  In Edmondson (BCSC), Smith J. stated:

[37]      The same applies to a
complete absence of a clinical record.  Except in severe or catastrophic
cases, the injury at issue is not the only thing of consequence in the
plaintiff’s life.  There certainly may be cases where a plaintiff’s
description of his or her symptoms is clearly inconsistent with a failure to
seek medical attention, permitting the court to draw adverse conclusions about
the plaintiff’s credibility.  But a plaintiff whose condition neither
deteriorates nor improves is not obliged to constantly bother busy doctors with
reports that nothing has changed, particularly if the plaintiff has no reason
to expect the doctors will be able to offer any new or different
treatment.  Similarly, a plaintiff who seeks medical attention for
unrelated conditions is not obliged to recount the history of the accident and
resulting injury to a doctor who is not being asked to treat that injury and
has no reason to be interested in it.

[99]        
The statements of this Court in Edmondson at paras. 36-37,
as above, were recently stated by the Court of Appeal to be propositions that
reflect a common sense approach to these types of arguments concerning clinical
records in the face of credibility arguments: Edmondson (BCCA), paras. 29-30.

[100]     While it
may be true that the absence of a record of symptom means that Dr. Gandham did
not record it, there are other circumstances here that support a conclusion
that there is no record because there were no symptoms reported by Mr. Sidhu at
the time.  These circumstances include Mr. Sidhu’s other curious response to
the various statements in these clinical records which are attributed to Mr.
Sidhu.  Generally speaking, Mr. Sidhu does not disagree that he made the
various statements recorded in the notes of both Mr. Lamla and Dr. Gandham. 
Rather, he says that the neck pain simply would have been “OK” only “on that
day” when the visit occurred and the note was made.  This is an explanation
that was repeated for other symptoms, particularly those related to his back,
as is discussed in more detail below.

[101]     By far,
Mr. Sidhu’s major complaint now is his back or lower back pain.  At trial, Mr.
Sidhu described his back pain as “constant and severe” until the end of 2008,
about one and a half years after the accident.  Yet, on his examination for
discovery held in July 2009, at a time when he admitted that his memory would
have been better, he described it as constant for about a year and then it
became intermittent.  At discovery, Mr. Sidhu confirmed that once the symptoms
became intermittent, they “continued to get better over time”.

[102]     In fact,
the medical records confirm that Mr. Sidhu’s reported symptoms of back pain
became better fairly shortly after the accident, particularly with the
physiotherapy sessions.  The physiotherapy records of Mr. Lamla, which Mr.
Sidhu concedes is an accurate record of his complaints on the various visits, indicate:

·       
On June 15, 2007, Mr. Sidhu was complaining of occasional back
pain, not constant and severe back pain.

·       
On June 20, 2007, Mr. Sidhu advised that he had occasional
complaints of lower back pain with walking for ½ hour.

·       
On July 11, 2007, Mr. Sidhu advised that he had been good but
that he had increased lower back pain with walking for longer time.

·       
On July 19, 2007, Mr. Sidhu again noted improvements when he
reported doing much better and that his lower back was “definitely feeling
better”.

·       
On July 24, 2007, Mr. Sidhu reported that he was doing much
better.

[103]     Mr. Sidhu,
in cross-examination, agreed with the accuracy of these records and conceded
that by the time of the physiotherapy sessions, there were “good days, and bad
days”, not that the pain continued to be severe and constant during that time
as he stated in his direct testimony.  Despite his direct evidence that when he
began to experience only intermittent back pain it was always severe or sharp,
on cross-examination he conceded that it was not always severe or sharp.

[104]     As noted
above, Mr. Sidhu did not continue the physiotherapy sessions after the end of
July 2007 even though he was invited to do so by Mr. Lamla if he needed further
treatment.  In other words, despite his current contention that he continued
still to have severe and constant pain in his back, he did not seek to continue
treatments with Mr. Lamla.

[105]     The
clinical records of Dr. Gandham also describe improvements in
Mr. Sidhu’s complaints about back pain as reported by him.  Mr. Sidhu
generally confirmed that Dr. Gandham’s notes were correct in terms of his
back being “substantially improved” by July 2007 and that his lower back
pain had improved by 75% by that time.

[106]     As with
his neck and shoulder complaints, Mr. Sidhu continued to maintain that
this was his way of describing his level of back pain only “on that day”.
In other words, he does not disagree that he advised the medical professionals
as described in the records.  Nevertheless, at trial he continued to maintain
that he was in constant back pain for the week and that it would only have been
on that particular day that he was feeling somewhat better, as recorded
by Dr. Gandham or Mr. Lamla.

[107]     Mr. Sidhu
submits that any inconsistencies between his current evidence and the clinical
notes are attributable to the vagaries and inherent frailties of human memory
and perception.  I agree that, as discussed in Edmondson,
inconsistencies are to be expected.  This is particularly so given that the
events in question took place some four years prior to Mr. Sidhu giving his
evidence at trial.

[108]     However,
in my view, Mr. Sidhu’s current contentions are not consistent with the
overall circumstances in this case.  Firstly, Mr. Sidhu retained counsel in mid-June
2007 immediately following this accident, and while he is not to be faulted in
that respect, it must be inferred that he was well aware of the importance of
recording his symptoms in terms of proving his claim.  Secondly, as it relates
to the complaints of ongoing back pain, if Mr. Sidhu was feeling better on
a particular day, it begs the question as to why Mr. Sidhu was going to
see Dr. Gandham or Mr. Lamla in the first place particularly after his
other major complaints, relating to his neck and shoulder, were resolved.

[109]     These
exceedingly regular visits to Dr. Gandham were not because the doctor asked Mr.
Sidhu to come back, but because Mr. Sidhu chose to continue the visits.  Despite
seeing Dr. Gandham numerous times over the ensuing years after the
accident, Dr. Gandham’s examinations, diagnosis, prognosis, and treatment
recommendations were consistent throughout that period and did not change.  I
formed the view that Dr. Gandham seemed somewhat puzzled as to why Mr. Sidhu
continued these visits in those circumstances.

[110]     The answer
to this question came from Mr. Sidhu himself.  Significantly, Mr. Sidhu
indicated that he saw Dr. Gandham on such a regular basis following the
accident so as to “document his symptoms”.

[111]     Nevertheless,
if these visits were to “document his symptoms” for this court case, it is
difficult to see why Mr. Sidhu would have relayed not only how he was
feeling on that particular day, but for the remainder of the week when
he says these constant and severe symptoms continued.  Quite incredibly, Mr.
Sidhu gave the following evidence:

Q         So just to be clear, you’re saying that you
wouldn’t have told him if you were having, the day before, lots of pain, or the
day before that, lots of pain, you wouldn’t have said that if on the day that
you saw him, you were feeling good that day?

A          Yes.

Q         Is that what you’re saying?

A          Probably.

[112]     Instead,
Mr. Sidhu has again the curious explanation that he was focusing only on
that particular day.  Dr. Gandham indicated in his evidence that he
quite carefully prepared his notes, including subjective comments of the
patient based on the SOAP approach, after seeing each particular patient.  There
is some basis upon which to consider his clinical records as accurately
recording Mr. Sidhu’s symptoms particularly in light of the fact that
Mr. Sidhu did not disagree with Dr. Gandham’s evidence in terms of
what Mr. Sidhu told him on the particular days of the examinations.  I do consider
that Dr. Gandham’s notes accurately record the results of Mr. Sidhu’s visits
and in particular, what Mr. Sidhu was describing as his current symptoms on
those times.

[113]     In
addition, as noted above, I am equally satisfied that Mr. Lamla’s notes stand
as an accurate record of what was relayed during Mr. Sidhu’s visits.  I accept,
in particular, Mr. Lamla’s evidence that if there was a current complaint, he
would not have ignored it, but would have treated it and made a record of
such.  For example, in relation to the neck issues, no such complaints were
made after June 15, 2007 and Mr. Lamla did not treat the neck from that time
forward.

[114]     I also
consider that the notes of both Dr. Gandham and Mr. Lamla are also generally
consistent in relation to each other, in terms of their findings and treatment
recommendations.

[115]     Mr. Sidhu
advanced the alternative argument that the improvement of his back symptoms
occurred after the accident only because of the physiotherapy sessions and
because he was not working during that time in his longshoreman job.  However,
this is contradicted by Dr. Gandham’s notes in December 2007 where he
recorded Mr. Sidhu advising that “ongoing lower back pain generally better”
despite him having stopped the physiotherapy sessions and having returned to
his work as a longshoreman some five months earlier.  In fact, at no time did
Mr. Sidhu complain to Dr. Gandham of any pain arising from his checking
position as a longshoreman.

[116]    
In direct examination, Mr. Sidhu suggested that there was improvement in
his back symptoms up until December 2010 but after that there was a plateau and
no further improvement.  He denied that he became symptom free as long as he
maintained his exercise regimen.  But Mr. Sidhu admitted that he had
advised Dr. Hershler that his lower back pain symptoms resolved with
exercise, as noted in Dr. Hershler’s second report:

… So long as he maintains his exercise schedule, he has
improvement in the low back pain.  Prior to embarking on his fitness program,
he experienced episodes of low back pain and stiffness on an almost daily
basis.  These symptoms were present on waking each morning, but gradually
resolved through the day. These low back symptoms resolve with regular
exercise. If he stops doing Yoga and the core strengthening exercises, the low
back pain returns.

[Emphasis
added.]

[117]     Although
not directly related to the determination of when Mr. Sidhu experienced pain
and to what degree, Mr. Sidhu also advanced the somewhat incredulous
proposition that he did not know that Dr. Hershler was going to prepare a
report for use in this litigation (presumably prior to just receiving the
reports), even though his counsel had arranged for the examinations.

[118]     Having
considered the totality of the evidence, and in particular, the many
inconsistencies in Mr. Sidhu’s evidence, I am drawn to the conclusion that Mr.
Sidhu’s credibility at this trial has been seriously undermined.  While some
inconsistencies in the reporting of symptoms over the last four years after the
accident are to be expected as normal, the very many inconsistencies here on
almost every front cannot be ignored.  His evidence is contradictory as between
his direct testimony, that given on cross-examination and also his discovery
evidence.  In addition, his direct testimony is contradicted by the clinical
records of Dr. Gandham and Mr. Lamla in a significant way, despite his current
contention that they accurately record his advice to them.

[119]     In
addition, I find that the many explanations advanced by Mr. Sidhu for the
current inconsistencies are also not credible.  I conclude that in most
respects, Mr. Sidhu has exaggerated both the length of time he experienced
his symptoms and the degree of those symptoms.  Where there is a discrepancy
between Mr. Sidhu’s evidence and that of the clinical records, I prefer the
latter.

[120]     The
credibility of Mrs. Sidhu did not fare much better.

[121]     Mrs. Sidhu
testified in early December 2011 after the trial resumed from the April 2011
trial dates.  Mr. Sidhu was under cross-examination during that hiatus and he
was cautioned by the Court not to speak to anyone regarding his testimony.  Despite
that admonition, Mr. Sidhu did admit to speaking to his wife during that break
regarding an issue relating to the Bikram’s yoga classes.  Both of them denied
speaking about anything else relating to this case during the adjournment
period.

[122]     Mrs.
Sidhu’s evidence was strikingly similar to the evidence of her husband.  As
noted by counsel for the defendants, one would have expected some
inconsistencies in their respective memory of and perspectives of events after
the accident, but there was little difference in their evidence.  While it is
possible that they spoke about their respective evidence well before the trial
began in April 2011, Mrs. Sidhu contended that she had not discussed this claim
with her husband at all prior to the commencement of the trial.  In fact, she
testified that she did not even know that her husband was going to trial in
this matter until the very morning it started and only because she noticed that
he was getting dressed in a suit and tie to come to court.

[123]     I do not
find this explanation given by Mrs. Sidhu, presumably made to convince the
Court of her “independence”, to be believable.  The Sidhus are obviously a
close knit family, a fact that they concede.  In addition, Mrs. Sidhu agreed
that she knew she was on the witness list well before the trial, as was
evidenced by the Trial Brief filed by Mr. Sidhu.

[124]     Similar to
her husband, Mrs. Sidhu’s testimony was successfully challenged in many
respects.  Her evidence about Mr. Sidhu taking a certain amount of medication
after the accident (every four hours) was contradicted during cross-examination
when she conceded that she did not observe him taking any medication except at
home or while in her presence.  She clearly had no knowledge of what
medication, if any, he took while at work or when he was not in her presence. 
Regarding her contention that he could no longer go shopping, it became
apparent during cross-examination that Mr. Sidhu never even attempted any
longer shopping trips so she was not sure if he could do it.

[125]     Mrs. Sidhu
also gave evidence in relation to her husband’s contention that he used to help
her vacuum the house, but that he could no longer do it.  Her evidence about
the vacuuming changed during the trial – initially from Mr. Sidhu helping
her two to three times a month to later, Mr. Sidhu doing it most of the time
and then her having to assume responsibility for that chore as a result of the
accident – the latter explanation contradicting even that of her husband.  Finally,
Mrs. Sidhu stated that on a trip to Montreal, Mr. Sidhu was unable, because of
his injuries, to climb stairs to a church, a matter which was contradicted by
Mr. Sidhu’s own evidence that he regularly climbed stairs some two to three stories
high to complete his checking jobs as a longshoreman.

[126]     I
similarly find that Mrs. Sidhu had not been completely forthcoming in terms of
her knowledge of Mr. Sidhu’s injuries and that she has simply attempted to
bolster her husband’s case, rather than giving truly independent evidence about
his symptoms.

[127]     I
accordingly find that both Mr. and Mrs. Sidhu were not generally credible at
trial in terms of describing the injuries suffered by Mr. Sidhu and what
effect, if any, those symptoms may have had on Mr. Sidhu’s enjoyment of various
activities.

[128]    
Having found that Mr. and Mrs. Sidhu’s credibility is lacking, the Court
is put in the difficult position of trying to determine the true state of
affairs in relation to Mr. Sidhu’s injuries.  In that respect, the defendants
rely on the comments of Madam Justice Southin (as she then was) in Le v.
Milburn, [1987] B.C.J. No. 2690 (S.C.) at para. 2:

When a litigant practises to
deceive, whether by deliberate falsehood or gross exaggeration, the court has
much difficulty in disentangling the truth from the web of deceit and
exaggeration.  If, in the course of the disentangling of the web, the court
casts aside as untrue something that was indeed true, the litigant has only
himself or herself to blame.

[129]     There is
no doubt that Mr. Sidhu was injured in the accident and suffered some injuries.
The difficult question here is the determination of when those injuries were
resolved, if ever, and the degree of symptoms suffered by Mr. Sidhu.

[130]     Mr. Sidhu
submits that I should find that he continues to suffer back pain despite there
being no objective evidence of that fact: Butler v. Blaylock Estate,
[1983] B.C.J. No. 1490 at paras. 12-13 (C.A.).  I would note,
however, that in Butler, the trial judge had accepted the evidence of
the plaintiff to the effect that he continued to suffer pain.  Similarly, Mr.
Sidhu also relies on Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131,
33 B.C.A.C. 182 and Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318, 73
B.C.A.C. 253, for the proposition that the Court may conclude that there is
ongoing pain despite no outward physical symptoms.  Both those cases involved
psychological symptoms that persisted long after the physical symptoms
resolved.  Yet both cases rested on the preliminary conclusion that the
complaints of pain were found to be truthful and credible: Maslen at
para. 3; Yoshikawa at para. 112.

[131]     I have
found Mr. Sidhu’s evidence to be less than truthful and lacking credibility.

[132]     As before,
I accept that Mr. Sidhu was injured in the accident, but I approach his and his
wife’s evidence with extreme caution in terms of their description of his
ongoing symptoms.

[133]     In light
of my credibility findings, I must consider Dr. Hershler’s reports.  In the
first instance, the defendants submit that, save for certain portions of Dr.
Hershler’s reports, as noted above, the reports are biased.  Yet, I have not
heard any evidence that would suggest that Dr. Hershler’s reports are biased in
respect of his opinions.

[134]     Mr. Sidhu
submits that I should accept Dr. Hershler’s report in its entirety in terms of
his medical diagnosis.

[135]     The
defendants submit that, save for certain portions of the reports, as noted
above, the reports should be given little weight.  In particular, the
defendants say that since Dr. Hershler did acknowledge relying heavily on the
self reporting of Mr. Sidhu, and the defence’s contention that Mr. Sidhu has
exaggerated his symptoms (which I accept), the Court should be cautious in
accepting Dr. Hershler’s opinion.  The contention of the defendants regarding
weight to be ascribed to the reports, based on Mr. Sidhu’s self reporting of
his symptoms, does bear further scrutiny.

[136]     I conclude
that the opinion evidence of Dr. Hershler must be considered in light of my
findings regarding Mr. Sidhu’s credibility, particularly since Dr. Hershler did
rely heavily upon the subjective complaints of Mr. Sidhu in arriving at his
opinion: Edmondson (BCSC) at paras. 71-74, 77.  The foundation of
Dr. Hershler’s reports must also be considered in light of the fact that they
arose after two relatively short examinations of Mr. Sidhu, in which the
majority of the time was spent in obtaining Mr. Sidhu’s history.  In contrast,
the extensive clinical notes of Dr. Gandham over the many years of his
treatment of Mr. Sidhu provide a much more consistent and in my view, accurate
record of Mr. Sidhu’s symptoms or lack of symptoms over the years after the
accident.

[137]     In
addition, there were also some discrepancies between the reports and the
evidence in that Dr. Hershler was advised that Mr. Sidhu’s checking jobs were
mainly sedentary or of short duration in relation to sitting and standing.  In
fact, Mr. Sidhu is required to sit or stand for extended periods of time.  I
would note, however, that the evidence suggested that Mr. Sidhu was able to
manage this work environment because he was able to get up and move around when
he was required to sit for prolonged periods of time and that standing for
prolonged periods of time also allowed him to move around.

[138]     It is to
be noted that the defendants did not offer any contradictory expert medical
report at the trial.

[139]     Dr.
Hershler’s report on his physical findings indicated a normal examination, save
for noting some tightness during range of motion testing of the back during the
initial examination in December 2009.  This is consistent with Mr. Sidhu’s
complaints of tightness.  No such tightness was noted in the later examination
in July 2010.  Other than this earlier finding of tightness, there was no
physical manifestation or objective basis upon which to find continuing pain.  In
light of these findings, it is apparent that Mr. Sidhu’s subjective complaints
formed a significant basis upon which Dr. Hershler formed his diagnosis.

[140]     In my view,
the weight that I would ascribe to Dr. Hershler’s report has to be lessened in
light of my findings of credibility concerning Mr. Sidhu.  While I accept Dr.
Hershler’s diagnosis of mechanical low back pain, I am also of the view that
the conclusions in his reports regarding Mr. Sidhu’s limitations must be
tempered by my finding that Mr. Sidhu has, to a certain extent, exaggerated his
symptoms in terms of the length of time he has suffered them and the severity
of those symptoms.  I note in any event that Dr. Hershler has found that Mr.
Sidhu can manage the pain with a proper exercise regime that in fact results in
a resolution of the pain in the sense of a lessening of symptoms both in terms
of frequency and severity.  Finally, Dr. Hershler notes that there is still
hope for further improvement even at this late date.

[141]     After
having considered the evidence from Mr. Sidhu and Dr. Gandham, I find that
Mr. Sidhu was not experiencing any of the symptoms that arose as a result of
the accident prior to May 2007.  Accordingly, I find that Mr. Sidhu’s symptoms
following the accident were caused by the accident and not by some pre-existing
condition: Athey v. Leonati, [1996] 3 S.C.R. 458.

[142]     After
having considered the evidence from Mr. Sidhu, the evidence of his
independent witnesses and the medical evidence referred to above, I also find as
a fact that Mr. Sidhu suffered the following injuries as a result of the
accident and that those injuries were and are as follows:

a)       he
suffered driving anxiety for a few days;

b)       he suffered
headaches for approximately three weeks;

c)       he
suffered pain to his ribcage or chest which was severe in the first three weeks
but decreased from that time and was resolved within six months;

d)       he
suffered shoulder pain which was resolved within a few weeks and neck pain
which was resolved within two months;

e)       he suffered
constant and severe pain in his back or lower back immediately following the
accident which gradually became intermittent in the two months following the
accident;

f)        since
August 2007, Mr. Sidhu’s back problems have continued to improve; and

g)       following
December 2007, Mr. Sidhu’s back pain was resolved for the most part, however,
Mr. Sidhu continues to experience discomfort and mild pain in his back or lower
back from time to time on a fairly infrequent basis, which increases to the
point of severity depending on his physical fitness (based on his exercise
regimen) and depending on the amount of exertion of heavy physical labour.

[143]     I
specifically reject Mr. Sidhu’s contention that he experienced constant and
severe back pain for one and a half years after the accident and that he
continues at this time to suffer sharp or severe back pain three to four times
per week.

Analysis

[144]     Mr. Sidhu
seeks damages under the following headings:

Non-pecuniary damages

[145]     Mr. Sidhu
submits that the injuries he suffered in the accident have limited him in his
vocational, recreational and domestic pursuits.  Specifically, he says that his
enjoyment of life has been negatively affected in relation to his family
vacations and trips, his yearly soccer game and his attendance at his
children’s sporting events.  He seeks an award between $50,000 to $80,000 and
more specifically, $65,000.

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

[147]    
In Trites, Madam Justice Ker recently summarized the factors that
are to be considered in assessing non-pecuniary damages:

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

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

a.         age of the plaintiff;

b.         nature of the injury;

c.         severity and duration of
pain;

d.         disability;

e.         emotional suffering; and

f.          loss or impairment of
life.

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

g.         impairment of family,
marital and social relationships;

h.         impairment of physical
and mental abilities;

i.          loss of lifestyle; and

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

[148]     The assessment
of non-pecuniary damages is necessarily influenced by the individual
plaintiff’s personal experiences in dealing with his injuries and their
consequences, and the plaintiff’s ability to articulate that experience: Dilello
v. Montgomery, 2005 BCCA 56 at para. 25, 250 D.L.R. (4th) 83.

[149]     Mr. Sidhu
relies on the following cases: Lee v. Metheral, Metheral and ICBC, 2006
BCSC 1841 (constant pain and headaches and medication including morphine –
$75,000); Hartnett v. Leischner, 2008 BCSC 1589 (substantial negative
effects on active lifestyle and on job abilities – $60,000); Foran (constant
and chronic neck pain and headaches which impact daily life – $90,000); Krell
v. Saari, 2003 BCSC 699 (daily pain and headaches – $50,000); Klein
v. Dowhy, 2007 BCSC 1151 (ongoing pain that negatively affected ability to
work and interact with his children – $75,000); Patel v. Ling, 2007
BCSC 1570 (shoulder and neck pain and headaches triggered by physical
activities but generally able to perform activities – $60,000); Kasic
v. Leyh, 2009 BCSC 649 (serious and chronic back pain with medication and
reduction of activities and family life – $70,000); and Predinchuk v.
Spencer, 2009 BCSC 1396 (substantial ongoing pain and headaches that had a
substantial effect on lifestyle – $80,000).

[150]     Having
reviewed those cases, I consider that most, if not all, of them involved
situations where the plaintiffs had their lives disrupted on a more significant
basis than that of Mr. Sidhu.  The closest case on the facts is that of Patel,
where the Court found that the plaintiff was left in a condition in which
shoulder and neck pain and headaches were triggered by physical activities that
put stress on the neck and shoulders: Patel at para. 67.  I do,
however, consider that the ongoing pain experienced by Ms. Patel was more than
what I have found is being experienced by Mr. Sidhu.

[151]     The
defendants submit that the appropriate amount for non-pecuniary damages is
$25,000.  They rely on the following cases, which involved injuries giving rise
initially to acute symptoms but which symptoms resolved over time and became
intermittent: Rochon v. Mott, 2009
BCSC 247 ($23,000); Job v. Van Blankers, 2009 BCSC 230 ($25,000);
Foo v. Masardijian, 2009 BCSC
1519 ($30,000); and Hunter v. Yuan, 2010 BCSC 1526 ($35,000).

[152]     As noted
above, while Mr. Sidhu had more severe symptoms immediately following the
accident, they were, for the most part, resolved within a few months.  I find
that any lingering symptoms have had and continue to have a minimal effect on Mr.
Sidhu’s activities.

[153]     As it
relates to his back pain, even by Mr. Sidhu’s evidence, he is not now in
constant pain.  Both Dr. Gandham and Dr. Hershler confirm this and say that as
long as Mr. Sidhu maintains his exercise regimen and avoids heavy labour, he
should be able to manage or even avoid any pain that he would otherwise have. 
Maintaining that exercise regimen in the future is not a negative factor in Mr.
Sidhu’s life and based on the assessment of Mr. Lamla, is one that he should
have commenced well before the accident.

[154]     Regarding
his work, Dr. Gandham and Dr. Hershler have advised that he should avoid heavy
labour jobs, but those types of longshoreman jobs have not been the types of
jobs that he has been doing for some years now, even before the accident.  He
did not complain to Dr. Gandham that he was experiencing pain during his
checking jobs as a longshoreman.

[155]     I accept
that the accident has had some minimal impact on Mr. Sidhu’s recreational
pursuits, particularly as it relates to his inability to participate in his
yearly soccer game and go to the waterslides at Cultus Lake.  In addition,
while his injuries may have somewhat affected his involvement at his children’s
sporting activities, he continued to participate.  I do not in any event see
that as a significant negative factor in Mr. Sidhu’s future life given the age
of his children and that their involvement in these activities (and/or his
participation) will likely diminish.  As for discomfort on long airline
flights, that is something that most people experience.  Mr. Sidhu continues to
plan and enjoy vacations and to the extent that long flights may cause him some
discomfort, I do not see that as a very negative factor.

[156]     I also
accept that the injuries have had some impact on Mr. Sidhu’s ability to
complete certain household chores where there is heavy lifting to do, such as
the gardening.  It appears that with a proper approach, consistent with Dr.
Gandham’s “back care”, he is able to mow the lawn and do pressure washing.  In
light of the conflicting evidence from both Mr. and Mrs. Sidhu regarding the
vacuuming, I do not find that there has been any negative impact on the ability
of Mr. Sidhu to assist in that from time to time.

[157]     I find
that Mr. Sidhu is entitled to non-pecuniary damages in the amount of $30,000.

Past wage loss/loss of opportunity

(i)       Past wage loss

[158]     The
objective in assessing an award for loss of income and earning capacity is to
restore the plaintiff to the position that they would have been in if not for
the injuries caused by the defendant: Lines v. W & D Logging Co. Ltd.,
2009 BCCA 106 at para. 185, 306 D.L.R. (4th) 1; and Falati v. Smith,
2010 BCSC 465 at para. 38, aff’d 2011 BCCA 45.

[159]     Claims for
past loss of income are often characterized as a separate head of damages.  However,
it is properly characterized as a component of loss of earning capacity.  It is
a claim for the loss of value of the work an injured plaintiff would have
performed but was unable to perform because of the injury: Rowe v. Bobell
Express Ltd., 2005 BCCA 141 at para. 30, 251 D.L.R. (4th) 290; Bradley
v. Bath, 2010 BCCA 10 at paras. 31-32, 1 B.C.L.R. (5th) 228; and Falati
at para. 39.

[160]     Mr.
Sidhu’s accident had little effect on his job at the Denny’s restaurant.  By
2006, he had a full time manager.  His duties were overall management of the
restaurant operations in addition to acting as the on duty manager every
Saturday.  His injuries from the accident caused him to miss only the following
Saturday shift at the restaurant.  He does not advance any loss of income claim
relating to his position at the restaurant.

[161]     Mr. Sidhu
also alleges that his injuries have affected his employment as a longshoreman. 
By the date of the accident in 2007, Mr. Sidhu was on the Casual A Board
and was receiving benefits in his job.  While on the Casual A Board,
Mr. Sidhu has the option of declining any labour jobs.  In addition, by
this time, Mr. Sidhu had been trained as a checker.  The checker jobs
involve screening trucks with containers as they are coming into the port facilities. 
From a physical point of view, the various roles of a checker required that Mr.
Sidhu, for the most part, sit on a chair or if working at the gate, stand 80%
of the time.  Mr. Sidhu did not report any pain to Dr. Gandham in relation to
his checking jobs since he was able to stand and stretch to relieve any
discomfort.

[162]     Despite
the lack of any recommendation by Dr. Gandham, Mr. Sidhu took approximately two
months off as a longshoreman and resumed his duties on July 29, 2007.  Mr.
Sidhu took this time off because of the benefits that he was entitled to in the
event of an injury.  He indicated that he is expected to refund any monies
received in this action to the Union in the event that he is successful in
respect of the wage loss claim.  He claims the sum of $15,323.94 for this two-month
period, based on his average monthly salary immediately prior to the accident.  The
defendants provided a more detailed calculation of the weekly earnings during
the year leading up to this period of time, and arrived at a total of
$13,942.64.  I accept the calculations of the defendants.

[163]     After
reviewing the evidence, I am satisfied that Mr. Sidhu did suffer a wage loss in
the two months immediately following the accident in the sum of $13,942.64.  That
figure is a gross figure and is awarded subject to the usual statutory
deductions in respect of taxes, which shall be worked out between counsel.

[164]     In
addition to his checking jobs, as of 2007, Mr. Sidhu was also obtaining labour
jobs as a longshoreman from time to time.  He gave evidence that as a result of
the accident, he missed a number of these labour type jobs, as follows:  2007 –
15 days, 2008 – 8 days, 2009 – 9 days, 2010 – 9 days, and 2011 –
2 days to April 2011.  He says he did this given the recommendations of either
or both Dr. Gandham and Dr. Hershler to avoid heavy lifting and bending.  Although
his math does not add up to the days lost given this evidence, Mr. Sidhu claims
for 39 days relating to lost labour jobs from August 2007 to December 2010.  Based
on his hourly rate and based on eight hours per day, this totals $14,040.

[165]     Yet again,
inconsistencies were apparent in relation to Mr. Sidhu’s evidence.  The
employment records of Mr. Sidhu indicate that the number of labour jobs that he
was taking before the accident were nominal:  2004 – one shift, 2005 –
one shift, 2006 – four shifts and 2007 – two shifts.  This is
consistent with his evidence that as his seniority increased, he had more and
more opportunities to take checking as opposed to labour type jobs.

[166]     Mr. Sidhu
called Chris Verbeek, who is also a longshoreman.  Mr. Verbeek worked up from
the Surplus Board to the Casual Board and then to union membership.  By 2004,
he was working as a dispatcher.  Mr. Verbeek said that checking jobs were
generally available during the relevant times.

[167]     The
evidence also establishes that the average number of days worked by Mr. Sidhu
has not significantly varied from 2005 to 2010.  Mr. Sidhu also gave evidence
at his discovery in July 2009 that he had taken a labour job approximately one
month earlier and was able to complete that job.  In other words, while it may
increase Mr. Sidhu’s pain, he is able to do these types of jobs.

[168]     There was
conflicting evidence between his discovery and his cross-examination as to
whether he had recorded in some fashion the labour shifts that he had turned
down.  No such record was produced in this litigation to substantiate this
claim.

[169]     The only
corroborating evidence is that of Mr. Verbeek who said that Mr. Sidhu turned
down about two or three labour shifts in the 2007/2008 timeframe.  He did not
relate why those shifts were turned down by Mr. Sidhu to the extent that he
knew.  This 2007/2008 timeframe would be around the time of the accident and
may be related to Mr. Sidhu’s recovery in the immediate time period following
the accident when his ability to withstand the physicality of such jobs would
be more compromised.  In addition, Mr. Verbeek did not indicate any current
incidents in which Mr. Sidhu was offered a labour job and turned it down.

[170]     The
defendants rely on the comments of Mr. Justice Gibbs in Iannone v. Hoogenraad
(1992), 66 B.C.L.R. (2d) 106 at 107 (C.A.), in stating that “[t]his plaintiff,
like others in similar circumstances, had the burden of leading evidence of post-accident
wages losses.  That will be a difficult burden to discharge where there is no
corroborating evidence such as income tax returns, but it is not an impossible
burden to discharge”.

[171]     With
respect to the lost labour days, I am not convinced that Mr. Sidhu has established
any loss beyond two shifts, which is consistent with Mr. Verbeek’s evidence in
the timeframe following the accident.

[172]     I
accordingly award the sum of $720.

(ii)      Loss of opportunity

[173]    
In Reilly v. Lynn, 2003 BCCA 49, 178 B.C.A.C. 69,
Mr. Justice Low, writing for the majority, summarized the relevant
principles to apply in assessing damages for loss of future earning capacity:

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

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

[Emphasis
in original.]

[174]     Insofar as
is possible, the plaintiff should be put in the position he or she would have
been in but for the injuries caused by the defendant’s negligence: Lines at
para. 185.  The essential task of the Court is to compare the likely
future of the plaintiff’s working life if the accident had not happened with
the plaintiff’s likely future working life after the accident: Gregory v.
Insurance Corp. of British Columbia, 2011 BCCA 144 at para. 32,
303 B.C.A.C. 92.

[175]     There are
two possible approaches to assessment of loss of future earning capacity:  the
“earnings approach” from Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133,
[1990] 5 W.W.R. 365 (C.A.), leave to appeal to S.C.C. refused [1990]
S.C.C.A. No. 327 and the “capital asset approach” in Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353 (S.C.).  Both approaches are correct and will be
more or less appropriate depending on whether the loss in question can be
quantified in a measureable way: Perren v. Lalari, 2010 BCCA 140, 317
D.L.R. (4th) 729.

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

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

[178]    
In Perren, Madam Justice Garson upheld the principles from Athey:

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

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

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

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

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

[Emphasis
in original.]

[179]     To
quantify a loss of earning capacity, courts conduct assessments, based on the
evidence, rather than applying purely mathematical calculations: Rosvold v.
Dunlop, 2001 BCCA 1 at para. 11, 147 B.C.A.C. 56; Kuskis v.
Hon Tin, 2008 BCSC 862 at para. 153; and Durand v. Bolt, 2007
BCSC 480 at paras. 71-82, 71 B.C.L.R. (4th) 261.

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

[181]     Relevant
contingencies can include such things as the potential for improvements in
health, opportunities for advancement, decline in the economy and loss of
employment, as well as the usual chances and hazards of life: Djukic v.
Hahn, 2006 BCSC 154 at para. 105, aff’d 2007 BCCA 203, 66 B.C.L.R.
(4th) 314; and Kuskis at para. 155.

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

[183]     Turning to
the facts in this case, at the time of the accident, Mr. Sidhu was employed,
for the most part, as a checker.  By October 2009, Mr. Sidhu had achieved union
membership.  He gave evidence that this milestone afforded him opportunities to
be trained for other types of longshoreman jobs, known as rubber tire gantry
and dock gantry.  The rubber tire gantry position requires a person to operate
a machine that moves containers within the yard.  The operator is required to look
down from the machine to perform this task for the entire shift.  Similarly,
the dockside gantry position is a position whereby the operator of a machine
moves containers on or off a ship, while looking forward and through a clear
floor to see the operations below.  A dockside gantry operator must have rubber
tire gantry training.  Both the rubber tire gantry and the dockside gantry
positions afforded higher benefits than that of a checker.

[184]     Mr. Sidhu
states that he did not seek to be trained for either the rubber tire gantry or
the dockside gantry positions.  His explanation was somewhat vague in that he
said that he described his back pain to some persons and was told that he would
not be suitable for the jobs given his condition.  It was not disclosed who
told him that beyond that it was “some operators”.  Nor was it clear from the
evidence what exactly was said during this discussion.

[185]     Mr.
Verbeek confirmed that Mr. Sidhu could have had a gantry position in 2009 but
he also confirmed that Mr. Sidhu never asked to be trained for these positions.
Further, he stated that if Mr. Sidhu had been trained and then accepted for
these positions, but was ultimately found not physically able to do the jobs,
he could have returned to his checking positions.

[186]     At no time
did Mr. Sidhu consult a doctor as to whether he could perform these gantry jobs
or not.

[187]     In
addition, these types of positions were available to Mr. Sidhu as soon as he
achieved the Casual A Board, which occurred in 2004, some three years prior to
the accident.  No explanation was provided as to why he did not apply for those
positions even years before the accident.

[188]     Mr. Sidhu
now submits that he continues to lose income as a result of the subject
accident, which can only be founded on the proposition that but for the
accident, Mr. Sidhu would have applied for and been granted positions at the
higher job levels of rubber tire gantry or dockside gantry.

[189]     In these
circumstances, I conclude that Mr. Sidhu has failed to establish any past wage
loss in relation to the rubber tire gantry and the dockside gantry positions.

[190]     Mr. Sidhu
also stated, on a very general basis, that it was his future plan to apply for
a foreman position.  He contends that he would have achieved this position by
December 2011.  These types of positions are posted by the companies hiring the
longshoremen.  Applicants are required to go through an interview process.  Mr.
Sidhu stated that the work is physically demanding but that a foreman makes
substantially more money with higher pay rates than the other positions.  Also,
as a foreman there are opportunities to work overtime.  Nevertheless, Mr. Sidhu
did not apply for a foreman position at any time.  No explanation was provided
as to why he did not apply for this position.

[191]     Mr. Sidhu
called his brother-in-law, Jatinder Johal.  Mr. Johal joined the longshoremen’s
union in 2004 and became a foreman in April 2005.  He confirmed that while he
was asked to put his name forward for a foreman position, anyone can just put
their name forward even if they have not reached union membership status.  He
confirmed that the position of a foreman involves some physical activities in
terms of helping the crew load and unload ships from the docks.  Mr. Johal
earned approximately $191,670 in 2010 while working only about five days a
week, with substantial holiday time.

[192]     Mr. Sidhu
also called Mr. Verbeek on this point.  Mr. Verbeek said that generally
speaking, you have to be a union member to get a foreman position.  He has
known Mr. Sidhu for some time now and is of the view that he is a good worker.  After
the accident, he asked Mr. Sidhu to put his name forward for a foreman position
but received only a noncommittal answer from Mr. Sidhu.  Mr. Sidhu did not give
evidence himself as to any such invitation from Mr. Verbeek.  Mr. Verbeek
confirmed the substantially higher rates of pay for foremen and the ability to
work double shifts.

[193]     There is
some suggestion in the evidence that Mr. Sidhu might have lost some job
opportunities to work at the Westshore Terminal, although Mr. Sidhu did not
give any evidence in that regard.  Mr. Verbeek stated that Mr. Sidhu was
unlikely to ever obtain a regular position there.  Mr. Verbeek confirmed that
Mr. Sidhu was not trained to work at Westshore Terminals (which would involve a
different collective agreement) nor was he trained at Fraser Surrey Docks where
different and higher rates of pay would apply to handling of sensitive cargo.  Mr.
Sidhu is only trained to work as a checker at Deltaport.

[194]     Mr. Sidhu
gave evidence that it is his intention to work to age 65.

[195]     Similar to
the gantry positions, Mr. Sidhu submits that he continues to lose income as a
result of the accident by reason of the fact that he would have applied for and
been granted a foreman position by December 2011.  Mr. Sidhu’s evidence on this
point is hardly convincing in light of the fact that he never applied for these
positions, nor did he seek any medical advice concerning his ability or
inability to work at this position.

[196]     In any
event, there is no evidence to establish that even had he obtained these
various longshoreman positions, what the difference in pay would have been
beyond very general statements about the hourly rate differences in pay between
the various positions.  In the case of the foreman position, a copy of the
relevant collective agreement was not put into evidence to establish any rate
differential.

[197]     In these
circumstances, I also conclude that Mr. Sidhu has failed to establish any past
wage loss in relation to the foreman position.

[198]     Hassan
Lahkani of PETA Consultants Ltd. was called by Mr. Sidhu.  Mr. Lahkani is an
economist who was asked to give expert opinion evidence on the calculation of a
future employment income loss multiplier in the event that the Court found that
a yearly income loss was established.  The multipliers calculated in respect of
Mr. Sidhu indicate a multiplier of $8,307 for each $1,000 of loss for the first
ten years (to age 57) and $10,300 thereafter assuming that he lives to age 105.
The only contingency applied was in respect of premature death.

[199]     On cross-examination,
it became apparent that Mr. Lahkani had not used other labour market
contingencies for a British Columbia male with a high school education.  Those
contingencies would include a labour force participation rate, an unemployment
rate and a part time factor.  Using those contingencies would reduce the
multiplier by 25.6% and produce a cumulative adjusted multiplier figure of
$9,703 to age 65.

[200]     Mr.
Lahkani rejected the application of the negative contingencies, contending that
positive factors would, in his opinion, balance those out.  Those positive
factors would include benefits that Mr. Sidhu would be entitled to in his
employment and the job security that he has with the union position.  However,
Mr. Lahkani was unable to give any specific figure that might apply to Mr.
Sidhu as a longshoreman to take these matters into account.

[201]     In any
event, Mr. Sidhu did not advance the argument that a mathematical calculation
was appropriate based on an earnings approach as discussed in Perrin.

[202]     Mr. Sidhu
submits that his injuries have diminished the value of his capital asset in the
sense that the range of employment options available to him has been narrowed.  That
this remains a consideration is apparent from the decisions noted above which
stand for the proposition that a capital asset may be reduced even if there is
no present income loss (or even an increase in income, such as the case here): Pallos
v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260 at
para. 41, 53 B.C.A.C. 310.

[203]     Mr. Sidhu
seeks an award of $90,000 for loss of capacity.  I am advised by his counsel
that this is roughly equal to the yearly salary of Mr. Sidhu.

[204]     With the
limitations noted above, I have accepted the diagnosis of Dr. Hershler in terms
of Mr. Sidhu having mechanical back pain at this time.  I have also accepted
that Mr. Sidhu has flare-ups from time to time on a fairly infrequent basis
depending on his level of fitness and exercise regime.  The evidence was clear
that his checking position, while not physically taxing, required continual
physical movement to avoid any pain that he might be experiencing.  In
addition, the evidence is also clear that he continues to do some labour type
jobs from time to time, although not very frequently.  Despite him experiencing
some discomfort in doing so, it appears that Mr. Sidhu will continue to perform
those types of jobs in the future.

[205]     I find
that there is a real and substantial possibility that Mr. Sidhu’s condition
will negatively affect Mr. Sidhu’s income in the future from time to time as it
relates to these labour jobs, particularly as he ages.  To address the factors
discussed in Brown, I find that Mr. Sidhu has shown that he has been
rendered less capable overall from earning income from all types of employment,
that he is less marketable or attractive as a potential employee and that he
has lost the ability to take advantage of all job opportunities that might
otherwise have been open, all arising from his physical limitations and his
inability to fully participate in an industry sector which requires that
employees be physically very active on the job.  Finally, I find that Mr. Sidhu
is less valuable to himself as a person capable of earning income in a
competitive labour market.

[206]     Nevertheless,
I consider that the degree of this loss is minimal.  As I stated earlier in
these reasons, I conclude that the difficulties that Mr. Sidhu experiences from
time to time are very intermittent and depend on his own actions, or inactions,
as the case may be, in terms of the types of activities he undertakes and his
level of fitness.  In addition, these labour jobs are taken by him on a very
infrequent basis.

[207]     In
addition, I note the chance of further improvement as stated by Dr. Hershler.

[208]     I award
the sum of $20,000.

Loss of housekeeping capacity

[209]    
Mr. Sidhu claims for loss of housekeeping capacity.  He cites Tombe
v. Stefulj, 2002 BCSC 154, in respect of general principles relating
to this claim:

[78]      The law with respect to this head of damages is
well- stated in Kroeker v. Jansen (1995), 4 B.C.L.R. (3d) 178 (C.A.)
where the majority held that the loss of a housekeeping capacity was
compensable as damages in a manner distinct from non-pecuniary damages for
"pain and suffering". It further concluded that such an award, where
appropriate, should be made irrespective of whether help was acquired. It is
the loss of capacity that is to be compensated.

[79]      As Madam Justice Huddart subsequently observed in
the Court of Appeal in McTavish v. MacGillivray (2000), 74 B.C.L.R. (3d)
281 at para. 63:

As we have seen, it is now well established that a plaintiff
whose ability to perform housekeeping services is diminished in part or in
whole ought to be compensated for that loss. It is equally well established
that the loss of housekeeping capacity is the plaintiff’s and not that of her
family. When family members have gratuitously done the work the plaintiff can
no longer do and the tasks they perform have a market value, that value
provides a tangible indication of the loss the plaintiff has suffered and
enables the court to assign a specific economic value in monetary terms to the
loss. This does not mean the loss is that of the family members or that they
are to be compensated. Their provision of services evidences the plaintiff’s
loss of capacity and provides a basis for valuing that loss. The loss remains
the plaintiff’s loss of economic capacity.

[210]     That it is
the loss of a capacity – an asset – that is to be compensated, which
is not dependent on whether replacement housekeeping costs are actually
incurred, was recently reconfirmed in O’Connell v. Yung, 2012 BCCA 57 at
paras. 64-67.  The authorities also state that compensation may be
provided even where services to perform household functions were gratuitously
provided by family members.  In addition, an award may be made in respect of
loss of capacity in relation to future household functions that a person would
perform.

[211]     Mr. Sidhu
also quite candidly submits that any such award will be modest, citing Kroeker
v. Jansen (1995), 4 B.C.L.R. (3d) 178, 123 D.L.R. (4th) 652 (C.A.) at para. 29,
which cautions that any award must be restrained and reasonable.

[212]     Mr. Sidhu
advances his claim on the basis of past and future loss of capacity.  He seeks
a global sum in the amount of $7,500.

[213]     Mr. Sidhu
and his family have lived in their home in Richmond, B.C. for the last 13
years.  The house in Richmond is a two-level house on a lot comprising
approximately 3,300 square feet on a 50 x 135 feet lot.  There is a front yard,
some 10 x 15 feet, which contains some lawn area.  The backyard, some 50 x 40
feet has various foliage, a vegetable garden and lawn area also.  The lower
level of the house includes a garage, sitting area, some bathrooms, and a
suite.  That suite is rented out.  In the upper level, there is a living room,
dining room, kitchen, bathrooms, and four bedrooms.  The area of both the upper
and lower level is approximately equal.

[214]     Mr. Sidhu
gave evidence that the pain arising from the accident has impacted his ability
to complete various household activities.  Prior to the accident, his list of
chores around the house consisted of various outdoor activities, such as
preparing the garden, taking care of the lawn, and pressure washing the sun
deck.  He gave evidence that after the accident, he was not able to take care
of the garden in the manner which he had previously done but has relied on his
brother-in-law to assist.  He indicates that he will ask his son to assist in
the future.  With respect to the lawn mowing, Mr. Sidhu’s son helped him
out until last year when Mr. Sidhu began to do some of the lawn mowing. 
He also indicated that he was not able after the accident to pressure wash his
driveway and sidewalks or wash the sun deck and his son has assisted in this
respect in the past.  He is now able to complete his pressure washing chores as
long as he takes sufficient breaks in accomplishing that task.  The evidence of
Mr. Sidhu was that he expected his son to assist in respect of chores around
the house in the ordinary course.

[215]     Mr. Johal
confirmed in his evidence that he has assisted Mr. Sidhu in the gardening work
for the last four years.  He has also assisted Mr. Sidhu in moving various
appliances and furniture since the accident.

[216]     Mr. Sidhu
also indicated that he used to help his wife with vacuuming the house about
once or twice a month but he has not been able to do that after the accident.  This
evidence conflicted with that of Mrs. Sidhu, as discussed above.  I do not
accept the evidence of either of them that there has been any change in their
roles in relation to the vacuuming.

[217]     With
respect to the yard work, Mr. Sidhu is physically able to clean his own
gutters, although he now hires a company to do it principally for safety
reasons.

[218]     There was
no medical evidence to suggest that Mr. Sidhu could not do any of these
household or outdoor activities, save for Dr. Gandham’s advice to avoid heavy
lifting, which would be involved in the garden work that Mr. Sidhu had
performed.

[219]     In these
circumstances, I am of the view that the only loss of household capacity proven
by Mr. Sidhu relates to his ability to perform heavy lifting in relation to the
gardening, which was an activity that Dr. Gandham recommended he should avoid. 
The fact that other members of Mr. Sidhu’s family have and will assist him in
that respect is not a factor upon which to deny an award.

[220]     Accordingly,
I award the sum of $1,000 under this heading.

Cost of future care

[221]     Mr. Sidhu
is entitled to compensation for the cost of future care based on what is
reasonably necessary to restore him to his pre-accident condition insofar as
that is possible.  When full restoration cannot be achieved, the Court must
strive to assure full compensation through the provision of adequate future
care.  The award is to be based on what is reasonably necessary on the medical
evidence to preserve and promote the plaintiff’s mental and physical health: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), aff’d (1987), 49 B.C.L.R.
(2d) 99 (C.A.); Williams v. Low, 2000 BCSC 345; Spehar v. Beazley,
2002 BCSC 1104, aff’d 2004 BCCA 290, 31 B.C.L.R. (4th) 223; and O’Connell,
paras. 67-68.

[222]     The test
for determining the appropriate award under the heading of cost of future care
is an objective one based on medical evidence.  For an award of future care: (1) there must be a medical justification for claims for cost
of future care; and (2) the claims must be reasonable: Milina at
84.  However, it is not necessary that the specific items be approved by
medical experts; the award may be based on the evidence as a whole, including
evidence of the plaintiff, the medical opinions, the collateral evidence and the
assistance of other reports on assistance required: Chiu v. Chiu, 2002
BCCA 618 at paras. 40-41, 8 B.C.L.R. (4th) 227.

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

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

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

[226]     Mr. Sidhu
advances this claim in relation to any future Bikram’s yoga classes, the use of
medication and follow-up sessions with a personal trainer.  He seeks the sum of
$10,000.

[227]     As noted
above, Dr. Gandham recommended that Mr. Sidhu take over-the-counter pain
medication to alleviate any ongoing symptoms.  Initially, Mr. Sidhu was taking
Advil and Robaxacet, but is now taking only Tylenol.  The only evidence
submitted regarding this cost were two receipts for Robaxacet in 2007 totalling
$42.  I do consider that it will be necessary for Mr. Sidhu to continue to take
pain medication from time to time in the future.

[228]     With
respect to the Bikram’s yoga classes, there is little, if any, medical
justification for that expense.  As stated above, Mr. Sidhu started those
classes on his own accord and not on the recommendation of Dr. Gandham.  I do
recognize that Dr. Gandham endorsed the taking of these classes but that was
simply consistent with his advice that Mr. Sidhu should remain active and
exercise.  Similarly, Dr. Hershler adopted the same approach, while
specifically noting that yoga was not an adequate exercise in relation to the
core muscles that Mr. Sidhu needed to strengthen and that other exercises were
needed.  I do not therefore consider that Bikram’s yoga is a reasonable expense.

[229]     Dr.
Hershler did recommend in July 2010 that Mr. Sidhu see a personal trainer four
times a year to reinforce his exercise regime and make sure he stayed on track.
In my view, that is excessive given the similar recommendations of Dr. Gandham
concerning Mr. Sidhu doing personal training for a specific and short period of
time with a view to being taught to do exercises at home on his own.  Mr. Lamla
also took this same approach.

[230]     I do not
consider the self-serving recommendation of Mr. Siqueira that Mr. Sidhu should
take more personal training sessions to be a sufficient justification for
ongoing regular sessions.  I do accept that it would be helpful for Mr. Sidhu
to see a personal trainer about once a year into the future, for the reasons
stated by Dr. Hershler.

[231]     I award
the sum of $2,000 for the cost of future care.

Special damages

[232]     Mr. Sidhu
has given evidence regarding various expenses that he incurred in attempting to
deal with his symptoms.  The defendants accept that special damages relating to
physiotherapy in 2007 ($900), parking charges ($24) and a charge from Dr.
Gandham ($30) are appropriate for a total of $954.

[233]     Upon a
review of the schedule provided by Mr. Sidhu, it appears that other costs
incurred by Mr. Sidhu, such as those relating to an exercise ball ($29.99) and
the 2007 personal training sessions with Murray at the South Arm Community
Centre ($297.20), have already been reimbursed to Mr. Sidhu.

[234]     Further
out-of-pocket expenses claimed by Mr. Sidhu but which are contested by the
defendants include:

·              
Personal training – Mr. Siqueira:  $945

[235]     Mr. Sidhu
also claimed the cost of personal training sessions with Mr. Siqueira from
January to April 2010 at a cost of $687.50 and from June 2010 to January 2011 at
a cost of $257.50, for a total cost of $945.

[236]     As was
stated earlier in these reasons, it was originally the idea of Mr. Sidhu to see
a personal trainer in 2007 but Dr. Gandham concurred in that respect for a
limited period of time so that Mr. Sidhu could receive some training in
exercises for his back condition.  After that Dr. Gandham considered that he
could do exercises at home.

[237]     In
addition, in December 2009, Dr. Hershler also recommended a personal trainer
once a week for six months and in July 2010, he recommended that Mr. Sidhu see
a trainer about four times a year.  It is not clear to me that Dr. Hershler was
aware that Mr. Sidhu had already had specific personal training sessions after
the accident in order to learn exercises to target his core area to aid in
strengthening his back muscles.

[238]     Nevertheless,
it does appear that Mr. Sidhu was simply following medical advice from Dr.
Hershler in respect of his sessions with Mr. Siqueira.  Accordingly, I would
award the sum of $945.

·              
Membership expenses for Watermania Community Centre:  $404 and
South Arm Community Centre:  $277.35

[239]     Mr. Sidhu
claims that in October 2007, he purchased a one-year facility pass at another
community centre, Watermania, for a cost of $404 and also incurred certain
costs at the South Arm Community Centre for $277.35.

[240]     However,
Mr. Sidhu was a member of the Richmond Community Centre even before the
accident, having purchased a one year membership in January 2007.  Dr. Hershler
noted that he was attending a gym prior to the accident about two to three
times per week.

[241]     Most
people, including medical professionals, would agree that it is beneficial to
have an exercise regime, particularly as we age and physical fitness is more
difficult to achieve and maintain.  This applies equally to a middle-aged man
like Mr. Sidhu who, at the time of the accident had fitness issues as
identified by Mr. Lamla.  Mr. Sidhu was already clearly on some track to
address these issues at the time of the accident given his membership at the
Richmond Community Centre.

[242]     In
addition, Mr. Sidhu was advised by his medical professionals to complete
various exercises for his back and he could choose to do that at home or at a
gym.  It is therefore difficult to see how his choice to be a member of another
community centre, Watermania, after the accident could be tied to the accident.

[243]     The
claimed expenses in relation to the South Arm Community Centre in the amount of
$277.35 incurred from October 2008 to February 2009 are not reasonable since it
was already the practice of Mr. Sidhu to be member of a gym in respect of his
fitness needs.

[244]     I reject
these claims on the basis that they are not reasonable.

·              
Bikram’s yoga:  $2,494.91

[245]     Mr. Sidhu
began doing Bikram’s yoga in 2009 on his own volition.  He began in May,
purchasing 80 classes for $499.91.  Further passes were purchased in October
2009 and November 2010 for $1,155 and $840 respectively.

[246]     Dr.
Gandham agreed that Mr. Sidhu should continue the yoga, as did Dr. Hershler.  However,
their agreement on this matter was more directed at Mr. Sidhu’s need to get
more exercise and address his overall fitness.  Both of them emphasized that it
was really necessary for Mr. Sidhu to do core strengthening exercises for his
back issues and that yoga did not provide this type of exercise.

[247]     I conclude
that there is no medical justification for this claim and it is rejected.

·      
Cost of travel to various medical appointments:  $500

[248]     Mr. Sidhu
advances this claim on the basis that he had to incur expenses to drive to the
various appointments that arose from the treatment of his injuries.  However,
there were no details provided in support of the amount claimed, such as a per
kilometer charge that might make sense in the circumstances.  If the claim is
being advanced on the basis of time spent travelling to various appointments,
similarly no detail or rationale is provided in support.

[249]     I reject
this claim on the basis that there is no evidence to support the amount
claimed.

Conclusion

[250]     I find
that Mr. Sidhu is entitled to damages in the amount of $69,561.64 consisting
of the following:

[251]     Mr. Sidhu
is entitled to pre-judgment interest on the wage loss claim and special
damages.  Mr. Sidhu is also entitled to his costs, unless the parties seek to
make further submissions in that respect or the parties agree otherwise.  If
further submissions are to be made, the party seeking a different award of
costs must do so within 30 days of the delivery of this judgment with a reply
to be filed within 15 days of that date.  If so, I would expect counsel to
address any issues arising from the fact that this case proceeded under Rule
15-1 of the Supreme Court Civil Rules, the fast track litigation rule,
despite the fact that the trial was scheduled to complete in five days but did
not complete in that time, requiring a further five days, for a total of ten
days.

“The
Honourable Madam Justice S.C. Fitzpatrick”