IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120608

Docket: M091770

Registry:
Vancouver

Between:

Mohammed Hamed
Stanikzai

Plaintiff

And

Balwinder K. Bola
and Jaswinder Singh Bola

Defendants

Before:
The Honourable Mr. Justice N. Smith

Reasons for Judgment

[1]            
The plaintiff Mohammed Stanikzai seeks damages for injuries in a motor
vehicle accident that occurred on August 25, 2007. The
plaintiff’s car struck the rear of a vehicle driven by the defendant Balwinder
Bola, but the plaintiff says that was because the defendant suddenly moved into
his lane while attempting a u-turn. The defendants deny that and say the
plaintiff was at fault for a simple rear-end collision.

[2]            
The plaintiff suffered a low back injury that he says
will permanently restrict his work and recreational activities. The defendants
say the plaintiff had a history of back problems and a degenerative condition
that would have worsened even without the accident.

1. Liability

[3]            
The accident occurred on King George Highway in Surrey.
The plaintiff testified that he was driving in the left northbound lane when a
van in front of him signaled that it was going to change lanes, moved to the right
lane, then suddenly and without signaling again moved back into the left lane
while attempting a u-turn. He said he did not have a chance to react and the
vehicles collided. The plaintiff’s wife Rehana Stanikzai was a passenger in his
car and gave a similar description of the accident.

[4]            
The plaintiff testified that his car hit the van on the
side near the gas cap. That is not consistent with the photographic evidence,
which shows damage to the defendant’s vehicle on the left rear bumper. The
damage to both vehicles appears to have been minor.

[5]            
The Defendant Ms. Bola was driving a van owned by the other defendant, Jaswinder
Bola. She testified that shortly before the accident she had made a left turn onto
King George Highway, turning first into the left lane, then moving to the right.
After signalling, checking her mirrors and looking over her shoulder, she said
she moved back into the left lane. When traffic in front of her slowed for a
traffic light, she slowed as well and was hit from behind. She said by the time
of the collision she had been in the left lane for “a couple of minutes” and
had not noticed the plaintiff’s vehicle before impact. She denied making a
u-turn, but said she turned to the left on impact, thinking that was the safest
course.

[6]            
The only independent witness called was Mr.
Tiwana, a truck driver who was behind the plaintiff in the left lane. Like the
plaintiff, he described the defendant’s van moving into the right lane, then
quickly attempting a u-turn in front of the plaintiff’s vehicle, leaving the
plaintiff no time to react. However, one significant difference between the
plaintiff’s evidence and that of Mr. Tiwana is that Mr. Tiwana said he saw the
left turn signal on the defendant’s vehicle before what he described as the
attempted u-turn.

[7]            
There is no doubt that when one vehicle hits another
from behind, the onus is on the driver of the rear vehicle to show that the
collision was not caused by his or her fault: Barrie v Marshall,
2010 BCSC 981. A driver following other vehicles is expected to keep his
vehicle under sufficient control to be able to deal with sudden stopping or
slowing of the vehicle in front: Pryndik v. Manju, 2001 BCSC 502.

[8]            
But while liability for a rear end collision usually rests
entirely with the following driver, that is not an invariable result. For
example, in Saffari v Lopez, 2009 BCSC 699, both drivers were found to
be equally at fault for a rear end collision. In that case, the front driver
stopped or slowed suddenly, ostensibly to retrieve a fallen cigarette, but the
court found that the rear driver was travelling either too fast or too close
behind to stop when confronted with the hazard.

[9]            
The plaintiff and the defendant in this case
give conflicting evidence that cannot be reconciled. In attempting to determine
what happened, on the balance of probabilities, I prefer the evidence of the
only independent witness, Mr. Tiwana. He describes the defendant moving
suddenly into the plaintiff’s lane in circumstances where the plaintiff did not
have time to stop. That is not consistent with the defendant’s evidence of the
lapse of time between her lane change and the collision and I do not accept her
evidence on that point. I do accept her evidence that she had no reason to be
making a u-turn and was not attempting one, but I find that her turn to the
left on impact likely created the mistaken impression of a u-turn.

[10]        
Based on Mr. Tiwana’s description of the
accident, I find that the defendant, in changing lanes, failed to notice or
properly assess the position of other vehicles and failed to ensure that she
had sufficient room to change lanes safely. Section 151(a) of the Motor
Vehicle Act, R.S.B.C. 1996, c. 318 reads:

151 A driver who is driving a vehicle on a laned roadway

(a) must not drive from one lane to another when a broken
line only exists between the lanes, unless the driver has ascertained that
movement can be made with safety and will in no way affect the travel of
another vehicle,

[11]        
I therefore find that the accident was caused or
contributed to by the negligence of the defendant. However, on the basis of Mr.
Tiwana’s evidence, the plaintiff must also bear some responsibility because he
failed to see the defendant’s turn signal. Although the defendant’s move was a
sudden one, seeing her turn signal would likely have given the plaintiff an
earlier opportunity to either apply his brakes or to at least use his horn to
warn the defendant of his presence.

[12]        
Because it was the defendant who created the
dangerous situation, I find that she must bear the greater share of blame and
apportion liability 75 per cent to the defendant and 25 per cent to the
plaintiff.

Injuries

[13]        
The plaintiff, now 49, was born and educated in Afghanistan, but
lived in Pakistan for 10 years before coming to Canada in late 2001. He then
worked in a number of labouring-type jobs until 2005, when he became a
self-employed delivery driver, working on contract for a single client. He testified that he understands basic English, can read a newspaper
and understands about 50% of an English language news broadcast. At trial, he
testified through an interpreter.

[14]        
The plaintiff testified that, almost five years after the
accident, he still has shoulder and neck pain, but those pains are minor
compared to ongoing back pain, which interferes with his ability to sleep and
to participate in a variety of activities that he enjoyed before the accident. The
plaintiff is not a good historian and has a poor memory for the details of his
medical condition, although that may be to some extent the result of language
and translation difficulties.

[15]        
The plaintiff says that before the accident he regularly played
basketball, soccer and, most frequently, volleyball with other members of the
Afghan community, but has not been able to play any of those sports since the
accident. That evidence was confirmed by three witnesses who played with him
and who described him as a vigorous, competitive player.

[16]        
Prior to the accident, the plaintiff’s wife was primarily responsible
for household tasks, but she testified she has since had to take on an even
greater burden. She said her husband is no longer able to help with chores that
require heavy lifting, is unable to sit for an extended period, does not walk
very far and does not sleep well.

[17]        
Functional capacity testing performed by Mr. Kyi, an occupational
therapist, confirms that the plaintiff has significant physical limitations and
restrictions, particularly for lifting, carrying and bending and that his standing
and walking tolerance is “highly limited.”

[18]        
The plaintiff described himself as having been healthy before the
accident, although he had occasional incidents of back pain that he did not
consider to be major. The clinical records of his family physician, Dr. Sidhu
indicate that the plaintiff reported back pain on a number of occasions in the
five years preceding the accident, but his complaints of pain since the
accident appear to have been much more frequent, persisting and severe.

[19]        
The plaintiff reported the accident and
resulting pain to Dr. Sidhu on August 27, 2007­–two days after the accident–and
returned on August 31. On the latter occasion, Dr. Sidhu recorded a complaint
that the low back pain was extending into the left leg. It is common ground
that such leg pain, frequently referred to as sciatica, may be the result of a
ruptured spinal disc compressing or damaging the relevant nerve.

[20]        
As the plaintiff continued to see Dr. Sidhu on
numerous occasions through the fall of 2007, low back pain became the dominant
complaint. A CT scan on November 5, 2007 was interpreted as revealing severe
degenerative change of the lumbosacral disc, with possible disc herniation and
nerve root impingement. Dr. Sidhu referred the plaintiff first to an orthopedic
surgeon, Dr. Maloon, then to Dr. Hershler, a physical medicine and
rehabilitation specialist (physiatrist) for a second opinion.

[21]        
Although the records and consultation reports of
both those doctors were before the court and Dr. Hershler testified, neither
provided an expert opinion. The plaintiff relies on expert opinions of Dr. Yu,
an orthopedic surgeon, and Dr. Caillier, a physiatrist.

[22]        
Dr. Caillier believes the plaintiff suffered
soft tissue injuries in the neck and upper back, but these have improved and do
not significantly limit or restrict him, although he will have
intermittent symptoms in future. The major problem is ongoing low back pain. She
says:

It is my opinion that the motor vehicle accident of August
25, 2007 likely resulted in aggravation of pre-existing degenerative changes
within the lumbar spine, which were asymptomatic at the time of the motor vehicle
accident.

It is my opinion that the motor
vehicle accident of August 25, 2007 likely resulted in that of a S1 nerve root
injury secondary to that of the lower back injury and subsequent disc
herniation.

[23]        
On cross-examination, Dr. Caillier agreed that the plaintiff’s
low back pain has been more severe than his leg pain, which is the opposite of
the usual, although not invariable, pattern in younger patients with sciatica. She
agreed that, when she saw the plaintiff in January, 2011, his condition appeared
to have deteriorated from what Dr. Maloon and Dr. Herschler recorded in 2008.

[24]        
Dr. Yu also believes the accident caused a low
back injury that resulted in left sided sciatic pain with “obvious clinical
signs of an S1 nerve root irritation.” Like Dr. Caillier, he said the plaintiff
had pre-existing degenerative disc disease, but that is a very common condition
and does not necessarily cause pain or other symptoms. However, Dr. Yu agreed on
cross-examination that the plaintiff’s disc degeneration is severe for a
person his age. Dr. Yu and Dr. Caillier also agreed that the
disc degeneration put the plaintiff at increased risk for back pain and
sciatica and that disc herniation and resulting pain can occur without
any significant trauma.

[25]        
Dr. Caillier said the pre-accident medical records are consistent
with “episodic back pain” of a kind that naturally resolves, although there was
one episode of pain radiating into the left leg in 2005. She and Dr. Yu, who
also reviewed the pre-accident records, remained firm in their opinion that the
plaintiff’s current problems are the result of the accident.

[26]        
Dr. Caillier said that given the chronic nature
of the plaintiff’s symptoms, he is likely to have ongoing low back and
radiating leg pain as well as sensory disturbance and weakness in the left leg.
Although she says some improvement may be possible with medication and a
physical reconditioning program, his prognosis “remains quite guarded.” She
said his ability to work will be effected by his low back symptoms and resulting
limitations in “sitting, standing, lifting, carrying, bending, twisting,
crouching, as well as any other impact activities.” She concludes:

It is my opinion
that Mr. Stanikzia’s injuries sustained in the motor vehicle accident of August
25, 2007 have had a significant negative impact upon his future employability
as well as lifestyle, and in this regard I am in agreement with Dr. Yu. I am
also in agreement that there will be some longterm disability associated with
his symptoms, whether he chooses to go forward with surgical or nonsurgical
options.

[27]        
Dr. Yu said the plaintiff’s symptoms will likely
“persist for the foreseeable future.” Although surgery could be performed to
remove the bulging disc, Dr. Yu said even that is unlikely to provide complete
relief.

[28]        
The opinions of Dr. Caillier and Dr. Yu are not
contradicted by any other medical opinion. At trial, the defendant sought to
enter a medical report from an orthopedic surgeon, Dr. Ponsford, that had not
been served within the 84 day notice period required by Rule 11-6(3). I
declined to exercise my discretion to shorten the required notice period and
admit the report, largely because I found it would not be of assistance in any
event.

[29]        
The essence of Dr. Ponsford’s opinion was that he was unable to provide
a firm medical opinion because of what he regarded as inconsistencies and
contradictions within the plaintiff’s history. Credibility is, of course, a
matter for the court, not the expert witness.

[30]        
The plaintiff was involved in three subsequent motor
vehicle accidents, all in 2011. No claim is made in respect of those injuries,
which were described as causing a temporary aggravation in symptoms. The low
back pain has continued to be his main problem throughout.

[31]        
The Defendants agree that the plaintiff suffered some injury, but
say his spine was already in a severely degenerated condition and the accident
only aggravated or accelerated that pre-existing condition. They also say there
was a significant risk that condition would have detrimentally affected the
plaintiff in the future even without the accident. Those are issues to be
considered on assessment of damages. Based on the only medical evidence that is
before me, I find that the plaintiff has a low back injury, with associated
nerve root involvement, that was caused or contributed to by the accident.

[32]        
I also find that the plaintiff has experienced and will continue
to experience low back pain. Based on his evidence and that of other witnesses,
I find that he remains able to do a variety of day-to-day tasks, but is
restricted from more strenuous activities, including his former recreational
activities, and that the pain significantly interferes with his quality of life.

2. Damages

a) pre-existing condition

[33]        
The defendants argue that damages must be reduced because the plaintiff
was at high risk for back problems in any event. An
asymptomatic non-tortious precondition, while not relevant to causation, may be
taken into account in assessing contingencies. The question is whether the
plaintiff would have become symptomatic at some point as a result of the
pre-condition if the tort had not occurred: Larwill v. Lanham,
2003 BCCA 629.

[34]        
 That is an application of the principle summarized by the Supreme Court
of Canada in Athey v. Leonati, [1996] 3 SCR 458, at para. 35:

The so-called "crumbling
skull" rule simply recognizes that the pre-existing condition was inherent
in the plaintiff’s "original position". The defendant need not put
the plaintiff in a position better than his or her original position.
The defendant is liable for the injuries caused, even if they are extreme, but
need not compensate the plaintiff for any debilitating effects of the
pre-existing condition which the plaintiff would have experienced anyway. The
defendant is liable for the additional damage but not the pre-existing damage:
Cooper-Stephenson, [Personal Injury Damages in Canada (2nd ed. 1996)],
at pp. 779-780 and John Munkman, Damages for Personal Injuries and Death
(9th ed. 1993), at pp. 39-40. Likewise, if there is a measurable risk that the
pre-existing condition would have detrimentally affected the plaintiff in the
future, regardless of the defendant’s negligence, then this can be taken into
account in reducing the overall award: Graham v. Rourke, [75 O.R. (2d)
622 (C.A.)]; Malec v. J. C. Hutton Proprietary Ltd., [169 C.L.R. 638];
Cooper-Stephenson, supra, at pp. 851-852. This is consistent with the
general rule that the plaintiff must be returned to the position he would have
been in, with all of its attendant risks and shortcomings, and not a better
position. [Emphasis in original.]

[35]        
Athey was also a case involving a disc herniation, although one
that occurred after the motor vehicle accident at issue. The court said at para.
48:

Had the trial judge concluded
(which she did not) that there was some realistic chance that the disc
herniation would have occurred at some point in the future without the
accident, then a reduction of the overall damage award may have been
considered. This is because the plaintiff is to be returned to his
"original position", which might have included a risk of spontaneous
disc herniation in the future. However, in the absence of such a finding, it
remains "speculative" and need not be taken into consideration: Schrump
v. Koot, [(1977), 18 O.R. (2d) 337 (C.A.)]; Graham v. Rourke, supra.
The plaintiff is entitled to the full amount of the damages as found by the
trial judge.

[36]        
In Zacharias v. Leys, 2005 BCCA 560, the Court of Appeal
said at para.16:

The crumbling skull rule is
difficult to apply when there is a chance, but not a certainty, that the
plaintiff would have suffered the harm but for the defendants’ conduct. Major
J. addressed this issue in Athey when he wrote, at paragraph 35, that damages
should be adjusted only when there is a "measurable risk that the
pre-existing condition would have detrimentally affected the plaintiff in the
future, regardless of the defendant’s negligence." Such a risk of harm
need not be proved on a balance of probabilities, which is the appropriate
standard for determining past events but not future ones. Future
or hypothetical events should simply be given weight according to the
probability of their occurrence. At paragraph 27, Major J. wrote that "if
there is a 30 percent chance that the plaintiff’s injuries will worsen, then
the damage award may be increased by 30 percent of the anticipated extra
damages to reflect that risk." In the same paragraph, he went on to say
that a future event should be taken into account as long as it is a "real
and substantial possibility and not mere speculation." [Emphasis in
original.]

[37]        
The plaintiff argues that there is no basis beyond pure speculation to
suggest he would have suffered back problems in the future. With respect, I cannot
agree. This is not a case where, following an accident, the plaintiff is found
to have a pre-existing condition that has never been and may never have become
symptomatic.

[38]        
Certainly, Dr. Yu and Dr. Caillier made clear that there is no necessary
correlation between degeneration of the spine and the presence or severity of
symptoms and neither suggested that future back problems were inevitable. However,
they agreed the plaintiff was at increased risk, particularly as he got older,
and Dr. Yu agreed the degeneration was unusually severe for a person of the
plaintiff’s age.

[39]        
The plaintiff had previous episodes of back pain, although he was having
no symptoms at the time of the accident. The relationship of those previous
incidents to his underlying condition has not been established, but Dr.
Caillier agreed that a history of recurring episodes of back pain, particularly
with leg pain, is an important predictor of future back pain.

[40]        
In my view, those factors, combined with the physical nature of the
plaintiff’s work, take the matter beyond one of speculation and establish a
measurable risk of future back problems that must be taken into account in
assessing damages.

b) Non-Pecuniary Damages

[41]        
The plaintiff seeks non-pecuniary damages in the range
of $78,000 – $140,000, relying on Raun v. Suran et al, 2010 BCSC 793, Majer
v. Beaudry et al, 2002 BCSC 746, Crane v. Lee, 2011 BCSC 898, Fox
v. Danis, 2005 BCSC 102 aff’d 2006 BCCA 324 and Larwill v. Lanham, 2001
BCSC 1597 var’d on other grounds 2003 BCCA 629. The defendants say that
non-pecuniary damages should be assessed in the $50,000 to $60,000 range. They
rely on Haag v. Serry and GMAC Leaseco Corporation, 2009 BCSC 187, Corrado
v. Mah, 2006 BCSC 1191, Zaruk v. Simpson et al, 2003 BCSC 1748, Pope
v. Williams, 2001 BCSC 1657, Solowoniuk v. Morash, 2000 BCSC 1840.

[42]        
Apart from what I have found to be a real possibility
of future back problems in any event, I find Majer and Crane to
be the most comparable. Both cases involved ongoing and likely permanent back
pain that, while not completely disabling, severely limited the plaintiff’s
work and recreational activities. Both involved pre-existing conditions that
were asymptomatic at the time of the accident, although the plaintiff in Crane
had, like this plaintiff, a previous history of back pain. The court awarded
non-pecuniary damages of $95,000 in Majer and $100,000 in Crane.

[43]        
If I had not found the plaintiff to have been at
significant risk for back problems, I would have assessed non-pecuniary damages
of $100,000. In recognition of that risk, I apply 15 per cent reduction and
assess non-pecuniary damages at $85,000.

c) Past Income Loss

[44]        
At the time of the accident the plaintiff was
working as a delivery driver on contract with a company that supplied certain
packaged food items to Costco stores. He began that work as an employee of a
cousin, but took over the contract in 2005 when his cousin moved to Toronto.

[45]        
The work involved picking up boxes of product,
each weighing between 15 and 25 pounds, from a storage location and
transporting them to four Costco Stores. The plaintiff loaded the boxes into
his vehicle and unloaded them by hand. He was required to ensure that these
deliveries were made seven days a week, hiring replacements for any days he
wished to take off.

[46]        
The evidence is not clear how much work the plaintiff was able to do in
the months following the accident. He testified that he was required to see
that deliveries to Costco under his contract continued and he did so by
increasing his use of friends as subcontractors to work in his place. He said
he still had to work when others were not available, although he found that to
be painful and difficult.

[47]        
The plaintiff continued at his job and by at least May 2011 was doing it
mostly without assistance. However, the employer terminated the contract in
October 2011 for commercial reasons unrelated to the plaintiff’s injury or
performance.

[48]        
Although the plaintiff testified that he maintained the delivery
contract following the accident by paying others to do the work for him, he has
no complete record of how much he paid and when. Some cheques evidencing
payments were produced, but the plaintiff said payments were more often made in
cash.

[49]        
I accept that the plaintiff paid for others to do his work or to assist
him from time to time, but that was also true before the accident. It is
difficult to determine the extent to which this practice increased after and as
a result of the accident. Two of those who frequently replaced him were the
plaintiff’s friend Taib Sayed and Mr. Sayed’s brother Arash. They both
testified to working together for six or seven days a week for a period
beginning in 2007, but could not recall when that period ended.

[50]        
The plaintiff’s income tax returns show that in 2006 he had gross income
of $43,320 and net income of $16,268. In 2007, the year of the accident, gross
income increased by almost $4,000 but net income dropped by more than $2,000. Given
the nature of the plaintiff’s operation, in which the only other significant
expense was the cost of vehicle operation, it is reasonable to infer that the
declining profitability reflects, at least in part, an increased use of
subcontractors.

[51]        
In 2008, the plaintiff’s gross income increased to $56,275–the result of
an additional Costco store being added to the delivery route–and his net income
was $17,230. But in both 2009 and 2010, on virtually the same gross income, the
plaintiff’s net income increased by more than $7,000. In the latter two years,
net income, expressed as a percentage of gross income was approximately what it
had been in 2006–just over 40 per cent. In 2007 and 2008, net income was
reduced to about 30 per cent of gross.

[52]        
The evidence is far from perfect, but in my view it is sufficient to
support an inference that for a period after the accident until well into 2008
the plaintiff was paying for increased help in his work and I accept his
evidence that this was made necessary by his injury. I find that during 2007
and 2008, the plaintiff was required to spend approximately an additional 10
per cent of his gross income on hiring this additional help and I assess his past
income loss at $10,000.

d) Loss of Future Earning Capacity

[53]        
The plaintiff is currently unemployed because of the termination of his
delivery contract. That termination was for reasons unrelated to his injuries
or physical condition and is not the responsibility of the defendants. However,
the question is how long would he have been able to continue in that job, if
the contract had not been terminated.

[54]        
Mr. Kyi the occupational therapist, tested the plaintiff before the
termination, but concluded he was no longer physically suited to the job and
had been able to continue only with assistance and by being willing to work
with some degree of daily pain. Derek Nordin, vocational consultant, also
assessed the plaintiff and prepared a report before the delivery contract was
terminated. He said that if the plaintiff was unable to continue in the
delivery job, “I have to express doubts about Mr. Stanikzai obtaining
alternative employment”.

[55]        
Since coming to Canada, all of the plaintiff’s jobs have involved
physical labour and I accept Mr. Nordin’s opinion that, given the plaintiff’s
limited fluency in English and his performance on vocational testing, that type
of employment represented his best pre-injury earning opportunity. On the basis
of the medical opinions and Mr. Kyi’s functional testing, I find he is no
longer capable of that kind of work. Although he was able to persist in his
former job until the contract was terminated, I find it unlikely that he would
have been able to continue on a long-term basis. I also accept Mr. Nordin’s
opinion that, in view of the plaintiff’s age and language difficulty,
retraining is not a viable option.

[56]        
I find that, but for the accident, the plaintiff would have been able to
find other labouring-type jobs when the delivery contract was terminated,
although perhaps at a lower income and probably with a greater risk of periodic
unemployment. He would also have been at risk of becoming unable to do that
kind of work at some point because of his pre-existing back condition.

[57]        
Although the plaintiff is not completely unemployable, Mr. Nordin’s
opinion is that his prospects are limited to unskilled sales and service
positions “that require less than medium strength for the bulk of a work shift (examples
being food counter attendants and parking lot attendants).” While he may be
physically capable of those jobs, his age and language difficulties will place
him at a competitive disadvantage in obtaining them. I find that, although the
plaintiff is likely to be employed from time to time in the future, he will be
subject to long periods of unemployment and jobs he does find are likely to be
part-time and/or temporary.

[58]        
In Rosvold v. Dunlop, 2001 BCCA 1, the court said, at para.11:

The task of the court is to assess
damages, not to calculate them according to some mathematical formula: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.).
Once impairment of a plaintiff’s earning capacity as a capital asset has been
established, that impairment must be valued. The valuation may involve a
comparison of the likely future of the plaintiff if the accident had not
happened with the plaintiff’s likely future after the accident has happened. As
a starting point, a trial judge may determine the present value of the
difference between the amounts earned under those two scenarios. But if this is
done, it is not to be the end of the inquiry: Ryder (Guardian ad litem of)
v. Jubbal, [1995] B.C.J. No. 644 (C.A.) (Q.L.); Parypa v. Wickware [(1999),
65 B.C.L.R. (3d) 155 (C.A.)]. The overall fairness and reasonableness of the
award must be considered taking into account all the evidence.

[59]        
From 2002 through 2006–the last full year before the accident–the
plaintiff’s average annual income was approximately $16,400. That includes
years when he was working on the delivery contract and years when he was doing
other jobs. The economic evidence indicates that the present value of that
annual income to age 65 is approximately $210,000. In my view, that is an
appropriate starting point for the assessment. Having lost the delivery
contract, the plaintiff would likely have been at increased risk of periods of
unemployment, but would also have had some opportunity to eventually obtain higher
paying work.

[60]        
Even in the absence of the accident, the plaintiff was at risk of losing
time at work or being forced out of the workforce early as a result of further
degeneration of his pre-existing back condition. Taking into account those
factors, and allowing for the plaintiff’s remaining, although limited, earning
capacity, I assess his loss of future earning capacity at $125,000.

e) Other Damages

[61]        
I accept the evidence of Dr. Caillier that the
plaintiff will likely obtain some relief and improve his functional ability through
a reconditioning program and ongoing work with a trainer knowledgeable in
kinesiology. Mr. Kyi has provided an opinion on the cost of those services,
including the necessary gym membership, and has recommended the purchase of a
back support, orthopedic pillow and ergonomic chair. I find the need for those
items to be established on the medical evidence and award the present value of
those costs, which Ms. Clark, the economist, calculates as approximately
$31,000.

[62]        
The evidence does not support a further award
for loss of housekeeping services. Defence counsel agrees to special damages of
$2,000 and the evidence does not support a higher award under that head.

f) Conclusion

[63]        
The plaintiff is awarded damages as follows:

[64]        
Costs will follow the event, unless counsel need
to address matters I am not aware of.

“N. Smith J.”