IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120719

Docket: M135857

Registry:
New Westminster

Between:

Eric Hoy

Plaintiff

And

Matthew Harvey and
John Harvey

Defendants

Before:
The Honourable Madam Justice Fitzpatrick

Reasons for Judgment

Introduction

[1]            
In the early evening of June 22, 2010, the plaintiff, Eric Hoy, was
driving along West Georgia Street in Vancouver with his then girlfriend (now
fiancée) Georgette Gutierrez in the passenger seat. They had come to a stop at
a red light at Nicola Street.

[2]            
Shortly thereafter, the vehicle Mr. Hoy was driving was struck from
behind by a vehicle being driven by the defendant, Matthew Harvey, and owned by
the defendant John Harvey.

[3]            
Liability for the accident is admitted by the defendants.

[4]            
Mr. Hoy asserts that as a result of the collision he has suffered injuries
principally related to his neck, shoulders and back. He claims non-pecuniary
damages, damage for loss of income and special damages.

[5]            
The defendants say that this was a minor collision which did not cause any
injuries as asserted by Mr. Hoy. In the alternative, the defendants submit
that Mr. Hoy’s injuries were relatively minor and were resolved shortly
after the accident and that accordingly, a modest damage award is appropriate.

Issues

[6]            
The issues for determination are:

1)    Were Mr. Hoy’s
injuries caused by the accident?

2)    If injuries were
caused by the accident, what was the extent of those injuries and when were
they resolved?

3)    What is the
appropriate damage award for any injuries caused?

4)    If causation is
shown, what costs are appropriate?

The Facts

Prior to the Accident

[7]            
Mr. Hoy is currently 29 years of age. At the time of the accident,
he was living with his girlfriend Georgette Gutierrez in Coquitlam, B.C. Ms. Gutierrez
is now his fiancée and they continue to live together in Surrey, B.C.

[8]            
Mr. Hoy was and is an active and fit person. He regularly engages
in various sporting activities, principally relating to basketball, tennis,
running and weightlifting.

[9]            
Mr. Hoy is employed as an aircraft mechanic having graduated some
years ago from BCIT. His job is physically demanding in that he is regularly
required to participate in lifting heavy airplane parts and carrying heavy
tools. In addition, the actual maintenance tasks that he is required to perform
on aircraft require physical bending and lifting and some of that work requires
that he work in restricted spaces, such as fuel tanks.

[10]        
At the time of the accident, Mr. Hoy was employed at Cascade Aerospace
as an aircraft mechanic but he had been laid off in January 2010. He did not
work in the six months leading up to the accident save for a temporary callback
for work at Cascade for a one month period in May 2010.

[11]        
Mr. Hoy had been involved in a previous motor vehicle accident, approximately
two years before the accident that is subject matter of these proceedings. The
vehicle he was driving was rear-ended by another vehicle but he did not suffer
any injuries as result of that accident.

[12]        
It is conceded by the defendants that at the date of the subject accident,
Mr. Hoy had no pre-existing injuries from that previous accident or
otherwise. In addition, it is conceded that Mr. Hoy did not have any pre-existing
health issues relevant to this action.

The Accident

[13]        
The accident occurred around 9:30 p.m. on June 22, 2010 while Mr. Hoy
and Ms. Gutierrez were traveling westbound in Mr. Hoy’s 2000 Pontiac
Sunfire on West Georgia Street in Vancouver just west of the downtown core. Both
Mr. Hoy and Ms. Gutierrez testified that they were on an errand to
purchase a PVR and were looking for a particular address to make that purchase.
As such, they were both generally aware of traffic in front of and on the sides
of their vehicle.

[14]        
Mr. Hoy testified that he came to a stop at the Nicola Street
intersection, for a red light on West Georgia Street.

[15]        
Mr. Hoy testified that after he stopped at the light, he checked
his rear view mirror but did not notice any vehicle behind him. After
approximately 15 seconds, Mr. Hoy testified that he heard screeching tires
just seconds before his vehicle was rear-ended by the vehicle driven by Matthew
Harvey. Ms. Gutierrez does not recall any screeching of tires immediately
before the impact. Mr. Hoy estimates that he was stopped at the light
approximately 30 seconds prior to the impact.

[16]        
Both Mr. Hoy and Ms. Gutierrez testified that the impact felt
like someone had pushed them hard in the back or, as Mr. Hoy said,
“tackled” him.

[17]        
Mr. Harvey’s testimony differed as to the circumstances by which he
rear ended Mr. Hoy’s vehicle. He was similarly traveling westbound on West
Georgia Street in his father’s 2007 Infiniti G35. He came to the same red stop light
at Nicola Street. Mr. Harvey testified that he came to a complete stop at
the red light immediately behind Mr. Hoy’s vehicle. He then testified that
he became distracted when talking to his friend who was in the passenger seat.
He mistakenly thought that the stop light had turned green and took his foot
off the brake. His friend noticed his mistake and started yelling at him to
stop but unfortunately, the impact occurred seconds after.

[18]        
Mr. Harvey testified that there is a slight down slope on West
Georgia Street near Nicola Street where the collision occurred such that his
car would have picked up some momentum simply by reason of taking his foot off
the brake. The momentum would have been quite minor however, given the short
distance – some five feet – between the two vehicles. Mr. Harvey does not
recall any screeching of tires.

[19]        
Mr. Harvey’s vehicle was not repaired.

[20]        
Mr. Hoy advances the theory that Mr. Harvey would have pressed
the accelerator on his vehicle which would explain the forceful impact that
both he and Ms. Gutierrez reported. Mr. Harvey was not able to say
whether or not he had reapplied the brakes before the collision given the short
period of time before impact. Mr. Harvey denied putting his foot on the
accelerator just prior to the accident.

[21]        
Notwithstanding the evidence of Mr. Hoy and Ms. Gutierrez, the
evidence of the damage to the vehicles supports that this was not a major
collision. The rear bumper cover of Mr. Hoy’s vehicle required repair of a
slight bulge and paint scratches and chips for a total cost of $689.48. Mr. Hoy
described the damage as “cosmetic”. Mr. Harvey’s car had some minor damage
to the left front bumper which he described as being hardly noticeable. The
cost of repairing the defendant’s vehicle was $654.25.

[22]        
Mr. Hoy’s vehicle was not pushed forward into any other car as a
result of the accident.

[23]        
It is apparent that neither Mr. Hoy nor Ms. Gutierrez was
aware as to how the collision occurred. Neither of them was looking behind Mr. Hoy’s
vehicle immediately prior to the collision. Mr. Harvey’s evidence as to
how the accident occurred – that his vehicle was in a slight rolling motion
immediately prior to impact – is consistent in terms of the level of damage
sustained by each of the vehicles. If Mr. Harvey was, as alleged by Mr. Hoy,
accelerating into the back of his car, one would have expected to have seen
damage to the vehicles well beyond what was actually suffered. Ms. Gutierrez
did not hear any screeching of tires.

[24]        
In the circumstances, I accept the evidence of Mr. Harvey as to how
the accident occurred and the level of impact that occurred between the two
vehicles.

After the Accident

[25]        
No emergency vehicles were called to the accident. Nor did Mr. Hoy
or Ms. Gutierrez visit any hospital that day.

[26]        
After the exchange of information between Mr. Hoy and Mr. Harvey,
both drivers got back into their cars and drove away.

[27]        
Mr. Hoy testified that immediately after the accident he had
ringing in his ears for about 2-3 minutes. In addition, he testified that he
and Ms. Gutierrez both felt nauseous and dizzy as result of the accident.
Accordingly, after they had completed their errand, they both returned home and
went to bed. The nausea and dizziness lasted overnight and was resolved by the
next day.

[28]        
Mr. Hoy’s main injuries were to his neck and shoulder area and also
his back. He noticed these injuries on the day following the accident. Mr. Hoy’s
injuries in this respect, which are supported by his evidence as described in
more detail below, are supported by the evidence of his doctor and his physiotherapist.

[29]        
Mr. Hoy did not have his own doctor at the time of the accident.
Accordingly, Mr. Hoy saw a family physician, Dr. Peter Yong. Dr. Yong
had been the family physician for Ms. Gutierrez for some time and Dr. Yong
in fact had treated and continues to treat many of Ms. Gutierrez’s family
members. Mr. Hoy saw Dr. Yong the day after the accident. Ms. Gutierrez
also saw Dr. Yong that same day with respect to injuries that she says she
sustained in the collision.

[30]        
Dr. Yong provided medical-legal reports dated February 22, 2011 and
March 20, 2012. His qualifications were not challenged.

[31]        
On the initial visit, in addition to Mr. Hoy’s subjective
complaints of pain in his neck and back, Dr. Yong noted tenderness in the
cervical area and also in the lumbar area. By his definition, tenderness meant
stiffness, spasms and tenseness. There was some restriction in the range of
motion in the neck area. Range of motion testing in the back area indicated
some minor restriction or no restriction at all. Dr. Yong’s diagnosis was
that of a soft tissue injury. Dr. Yong advised Mr. Hoy to take Advil
or Tylenol for pain.

[32]        
Dr. Yong saw Mr. Hoy again on June 29, 2010. Dr. Yong
still noted Mr. Hoy’s subjective complaints of neck and back pain. Again,
objective findings arising from a physical examination included tenderness in
the cervical and lumbar areas. Further testing found the same restricted range
of motion in the neck. The same findings with respect to range of motion in the
lumbar area were also noted. Dr. Yong made a diagnosis at that time of
soft tissue injuries of “moderate" severity. The difference between
“moderate” and “mild” severity appears to arise from Dr. Yong’s finding of
tenderness and spasms. Dr. Yong also noted that due to the nature of Mr. Hoy’s
work, he would have "classified [Mr. Hoy] as totally disabled at this
point and if Mr. Hoy was working at that point, he would have been advised
to be off work".

[33]        
Mr. Hoy began seeing Christina Mattiello, a physiotherapist, on
July 12, 2010. Ms. Mattiello similarly noted subjective reports by Mr. Hoy
of pain in his neck and back. Like Dr. Yong, Ms. Mattiello found on
an objective physical examination increased tone (her word for tenderness where
there was pain or physical withdrawal upon touch) and decreased range of motion.
Further treatments with Ms. Mattiello continued through July and into
August with Mr. Hoy reporting gradual improvement over that period of
time.

[34]        
Improvement in Mr. Hoy’s neck and back pain was also noted after a
visit with Dr. Yong on July 22, 2010. Dr. Yong advised Mr. Hoy
to do an exercise program.

[35]        
On August 24, 2010, Mr. Hoy was continuing to report further improvement
with the neck pain to Dr. Yong. His last treatment by Ms. Mattiello for
that neck pain occurred on August 18, 2010. On his visit to Dr. Yong, the
back pain was noted as not constant and improving. On this visit, Dr. Yong
advised Mr. Hoy to consider returning to work on a gradual return to work
program.

[36]        
Mr. Hoy visited Dr. Yong on September 11, 2010. Dr. Yong
noted that the back and neck pain was improving. Range of motion was better and
the tenseness had eased. Dr. Yong advised him to return to work. In fact, Mr. Hoy
returned to work on or about September 13, 2010, having been recalled by
Cascade.

[37]        
In September 2010, Mr. Hoy continued to visit Ms. Mattiello in
respect of his back issues. The physiotherapy visits consisted of Ms. Mattiello
having Mr. Hoy complete more and more difficult exercises to improve his
strength. That continued until October 25, 2010 when Mr. Hoy’s last visit
occurred.

[38]        
Mr. Hoy visited Dr. Yong again on February 5, 2011. At that
time, Mr. Hoy reported that he was still experiencing some lower back pain
about once a month when the pain would be described as “sharp". Mr. Hoy
also confirmed at that time that he had no neck pain as of December 2010.

[39]        
On May 24, 2011, Mr. Hoy saw Dr. Yong for the last time in
relation to the accident. Dr. Yong reported at that time that Mr. Hoy
had made a full recovery. Dr. Yong advised Mr. Hoy to continue to do
his stretching and strengthening exercises in addition to his employment
activities and his regular sporting activities.

Causation

[40]        
The plaintiff must establish on a balance of probabilities that the
defendant’s negligence caused or materially contributed to an injury. The
defendant’s negligence need not be the sole cause of the injury so long as it
is part of the cause beyond the range of de minimus. Causation need not
be determined by scientific precision: Athey v. Leonati, [1996] 3 S.C.R.
458 at paras. 13-17.

[41]        
The primary test for causation asks: but-for the defendant’s negligence,
would the plaintiff have suffered the injury? The “but-for” test recognizes
that compensation for negligent conduct should only be made where a substantial
connection between the injury and the defendant’s conduct is present: Resurfice
Corp. v. Hanke, 2007 SCC 7 at paras. 21-23.

[42]        
The most basic principle of tort law is that the plaintiff must be
placed in the position he or she would have been in if not for the defendant’s
negligence, no better or worse. The tortfeasor must take his or her victim as
they find them, even if the plaintiff’s injuries are more severe than they
would be for a normal person (the thin skull rule).

[43]        
Mr. Hoy contends that he has met this test based on his evidence,
the evidence of Ms. Gutierrez and the independent medical evidence of Dr. Yong
and Ms. Mattiello.

[44]        
The defence submits that Mr. Hoy could not
have sustained his claimed injuries from such a minor impact. The defendants rely
on the comments made by the Court in Sinclair v. Norman, 1996 CarswellBC
1761 (Prov. Ct.) where the Court dismissed the claim where there had only been
a “light touch” or “nudge”:

[16]      Common
sense will tell me that surely there has to be a threshold of impact for any
soft tissue injury. Given the evidence in this case of a light touch of the
independent witness or imperceptible nudge of the Defendant. I cannot on
balance conclude that the Claimant has the causation established necessary to
find in her favour.

[45]        
Evidence of the damage caused and the impact
generally can be one of many factors considered by the Court in the
determination of what injuries, if any, were caused by the accident. In Miller
v. Darwel, 2005 BCSC 759, the Court stated:

[9]  On
appeal, the claimant argues that the trial judge erred in considering the force
of the impact of the collision on the issue of liability. In support of this
position the claimant relies upon the case of Gordon v. Palmer (1993), 78 B.C.L.R.
(2d) 236 (B.C.S.C.) in which Thackray J. (as he
then was) said at para. 4:

I do not subscribe
to the view that if there is no motor vehicle damage then there is no injury.
This is a philosophy that the Insurance Corporation of British Columbia may
follow, but it has not application in court. It is not a legal principle of
which I am aware and I have never heard it endorsed as a medical principle.

[10]  As
other judges who have considered this passage have already said, these words
should not be taken to mean that the extent of damage in a collision is
irrelevant to causation. It is some evidence of impact, which is not logically
unrelated to injury.

[11]  I
agree with Taylor, J. in Yeh v. Ford Credit Canada Ltd., [1996] B.C.J. No. 1400 (B.C.S.C.), when he said at para. 7:

Such evidence is therefore relevant with
respect to what injuries resulted from the impact and to the issue of the
credibility of the plaintiff who asserts such injuries, by reason of the fact
that such injuries often do not have objective symptoms. Such evidence may,
depending upon the extent of the property damage, either contradict or
corroborate evidence of personal injury.

[46]        
As in most motor vehicle injury cases involving
soft tissue injuries, the defence cites the oft quoted decision in Price v.
Kostryba (1982), 70 B.C.L.R. 397, where Chief Justice McEachern, as he then
was, stated that the Court must exercise caution in respect of subjective
complaints of pain in respect of those soft tissue injuries (at 399).

[47]        
I agree that the extent of this collision is relatively
minor and that this is a factor to be considered when assessing Mr. Hoy’s claims
of injury. However, it is equally clear that even low impact collisions may
cause injuries. In Lubick v. Mei and another, 2008 BCSC
555, Mr. Justice Macaulay stated:

[5]        The Courts have long debunked as myth the
suggestion that low impact can be directly correlated with lack of compensable
injury. In Gordon v. Palmer, [1993] B.C.J. No. 474 (S.C.), Thackray
J., as he then was, made the following comments that are still apposite today:

I do not subscribe to the view that
if there is no motor vehicle damage then there is no injury. This is a
philosophy that the Insurance Corporation of British Columbia may follow, but
it has no application in court. It is not a legal principle of which I am aware
and I have never heard it endorsed as a medical principle.

He goes on to point out that the presence and extent of
injuries are determined on the evidence, not with "extraneous philosophies
that some would impose on the judicial process". In particular, he noted
that there was no evidence to substantiate the defence theory in the case
before him. Similarly, there is no evidence to substantiate the defence
contention that Lubick could not have sustained any injury here because the
vehicle impact was slight.

[6]        I am
satisfied that Lubick sustained an injury in the collision in spite of the low
impact.

[48]        
Generally speaking, I found Mr. Hoy to have
given his evidence in a straightforward and direct manner. His subjective
complaints of pain were confirmed by objective testing by both his family
physician, Dr. Yong, and his physiotherapist, Ms. Mattiello. It is
accepted that prior to the accident, Mr. Hoy was in good health and was
suffering none of the complaints that arose just after the accident.

[49]        
In these circumstances, I am satisfied that the
injuries suffered by Mr. Hoy in the accident were caused by the accident
and that accordingly, causation has been proven.

Damages

[50]        
As previously stated, Mr. Hoy had some injuries immediately
following the accident in the form of a ringing in his ears which resolved
within a matter of minutes. The feelings of nausea and dizziness continued for
the remainder of the evening after the accident and were resolved by the next
morning.

[51]        
The most significant injuries of Mr. Hoy related to the neck and
shoulder area and the back area.

[52]        
This neck and shoulder pain was noticed by Mr. Hoy the day after
the collision. He described the pain as being at the base of the skull. He described
the pain as sharp and throbbing. This neck/shoulder pain was also noted by both
Dr. Yong and Ms. Mattiello. However, by August 19, 2010, Ms. Mattiello
was no longer treating Mr. Hoy’s neck.

[53]        
Mr. Hoy conceded in his evidence that the neck injury was essentially
resolved by August 19, 2010. Thereafter, until December 2010, he would
experience flare ups of his neck pain approximately once per month. Those flare
ups would last approximately 10-20 minutes. By December 2010, the neck issues
were fully resolved.

[54]        
Accordingly, with respect to Mr. Hoy’s neck and shoulder pain, the
injury lasted for approximately eight weeks with transient pain thereafter for
approximately four episodes of short duration.

[55]        
Mr. Hoy also described his back pain following the collision. He
described this pain as “sharp”, “piercing” and “throbbing”. After three months,
the back pain was substantially resolved such that Mr. Hoy was able to return
to all of his sporting activities. He was also able to return working full-time
at Cascade on September 13, 2010. Mr. Hoy changed jobs on October 21, 2010
by securing employment at MTU, also working as an aircraft mechanic.

[56]        
From that time forward, Mr. Hoy described his back symptoms as
occurring once a month and being aggravated by bending and lifting. He was able
to manage these symptoms despite his return to work at Cascade and then MTU. These
final periodical episodes of pain or stiffness in his back were ultimately
resolved in May 2011.

[57]        
I consider that any impact from his back injuries on Mr. Hoy’s
daily activities were, for the most part, resolved within 11-12 weeks of the
motor vehicle accident.

[58]        
In relation to the severity of Mr. Hoy’s injuries, the defendants
submit that I should disregard or give little weight to the medical-legal report
of Dr. Yong dated February 22, 2011. The defence submits that Dr. Yong
was not impartial and essentially acted as an advocate for Mr. Hoy given
the contention that he had been long associated with Ms. Gutierrez and her
family. In fact, Dr. Yong was the person to assess Ms. Gutierrez’s
injuries arising from the collision and it was asserted that it would be
strange not to support the proposition that both had been injured by the same
accident.

[59]        
It is correct to say that there were some issues concerning Dr. Yong’s
testimony. A decision of this Court criticizing Dr. Yong’s testimony and
in particular, his lack of objectivity, in a previous case (Dhaliwal v.
Tomelden, 2010 BCSC 612 at paras. 13, 101 to 105) was put to Dr. Yong.
He indicated that he did not remember any such event. While it is difficult to
imagine a professional person, having knowledge of that decision, forgetting
about it, the evidence does not establish that the reasons for judgment were
ever brought to his attention.

[60]        
Dealing with Dr. Yong’s evidence itself, I am of the view that at
times he was evasive in answering certain questions that were asked of him on
cross-examination. In addition, he gave no satisfactory evidence as to his initial
and continuing diagnosis of Mr. Hoy’s “moderate" soft tissue injury
when it might reasonably have been better characterized as “mild",
particularly by February 2011 when the neck pain had resolved and the back pain
was only present once a month.

[61]        
Despite these failings in his evidence, I am satisfied that Dr. Yong
did objectively find that Mr. Hoy had suffered soft tissue injuries. While
I might otherwise have been skeptical of his findings on their own, I accept
them to the extent that they are also corroborated by Mr. Hoy’s evidence
and that of Ms. Mattiello.

[62]        
The defence submitted no medical evidence in support of their contention
that Dr. Yong made an error in his medical diagnoses.

[63]        
As previously stated, Mr. Hoy was a very active person prior to the
accident. His activities included tennis, basketball, running and
weightlifting. I accept on the evidence that Mr. Hoy’s curtailment of
these activities was for a period of time of approximately three months. He had
returned to fully participate in these activities by six months after the
accident.

[64]        
In addition, Mr. Hoy’s injuries had some affect on his personal
life. Mr. Hoy did not normally perform household tasks, leaving those to Ms. Gutierrez.
However, he did attempt vacuuming and cleaning washrooms during the time that Ms. Gutierrez
was also said to be suffering injuries from the accident. Ms. Gutierrez also
reported that Mr. Hoy was somewhat temperamental in the first while after
the accident when he was unable to participate in his sporting activities.

[65]        
Finally, both Mr. Hoy and Ms. Gutierrez reported that Mr. Hoy’s
injuries had some affect on their intimate relationship for approximately six
weeks following the accident, although it should be noted that Ms. Gutierrez
herself was reporting significant injuries during that period of time so it may
have been a combination of the two.

Non-Pecuniary Damages

[66]        
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. Although fairness is measured against
awards made in comparable cases, each case is unique and previous cases, though helpful, serve only as a rough guide: Trites
v. Penner, 2010 BCSC 882 at paras. 188-189.

[67]        
In Stapley v. Hejslet, 2006 BCCA 34, leave to appeal to SCC
refused, 31373 (October 19, 2006), the Court of Appeal outlined the factors to
be considered when assessing non-pecuniary damages:

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

[68]        
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.

[69]        
Mr. Hoy seeks a damage award in the range of $20,000-$30,000. He
relies on the following authorities:

Thomson v. Hunt, 2010 BCSC 1858
Accident in December 2007. Most injures (pain and discomfort in back, left
shoulder, left arm to his elbow, neck and shoulder blades) substantially resolved
with his eventual return to work in March 2008. Also anxiety and stress related
to missing work. Despite return to work, symptoms persisted in one form or
another for total of eight months. Award of $20,000.

Parwani v.
Sekhon, 2009 BCSC 1280
Accident in October 2004. The plaintiff was found to have suffered soft tissues
injuries to his neck, left shoulder and arm and low back. The court declined to
attribute a knee injury to the accident. His abilities to work, write, interact
with his family and engage in prayer were restricted for a period. His symptoms
had largely resolved, subject to some minor flare-ups, within five months of
the collision. Award of $25,000, despite concerns regarding the plaintiff’s
credibility.

Berry v. LaBelle, 2010 BCSC 239
Accident in March 2006. The court found that the only injury the plaintiff
suffered in the accident was a strain to the soft tissues on the left side of
his neck which caused him discomfort for several months after the accident.
However, seven months after the collision he returned to dirt biking. The
discomfort caused him difficulty when lifting heavy materials as a drywaller,
engaging in strenuous recreational activities and having intimate relations
with his wife. Award of $30,000.

[70]        
The defendants take the position that the non-pecuniary damages
should be in the range of $3,500 and $10,000. They cite the following cases:

Way v. Frigon,
2001 BCSC 573 
Two accidents, February and August 1997. First injuries resulted in 2-5 months
of discomfort, neck stiffness and tenderness in the spine that interfered to
some extent with activities. Second injuries resulted in symptoms in left
shoulder, back and headaches and tenderness lasting about 5 months. Total
symptoms for 7 – 10 months. Award of $3,500.

Lee v. Dueck,
2012 BCSC 530
Accident November 2009. Pain in ankle resolved within 10 days. Pain in wrist
resolved within 7 months except for flare ups. At risk for chronic future flare
ups. Award of $5,000.

Dolha v. Heft,
2011 BCSC 737
Accident June 2008. Neck and back injuries began to resolve within a couple of
months and completely resolved within 6-9 months. Headaches over year following
which decreased in frequency and intensity. Injuries did not affect life except
for running for 2-3 months. Award of $7,000.

Dolha v. Heft, 2011 BCSC 738
Accident June 2008. Nausea and dizziness for about a week. Neck and back
injuries constant for first year but began to resolve slowly and completely
resolved within 2 ½ years. Headaches severe for first month and then resolved
within 6 months. Some emotional difficulties. Award of $10,000.

[71]        
In this case, Mr. Hoy’s most significant injuries can be said to
have been resolved fairly quickly. His neck injury was only significant for a
period of approximately two months which coincided with his last treatment by
his physiotherapist, Ms. Mattiello. Thereafter, he would have pain only
once per month for four further episodes. His back pain persisted to the point
of affecting his lifestyle only for a period of approximately three months,
when he returned to work full-time and began to resume his sporting activities.
All symptoms were completely resolved by May 2011, or within 11 months.

[72]        
There was no evidence that his injuries caused him discomfort when he
returned to his working life in mid-September 2010 beyond some occasional
tightness in his back. Mr. Hoy was also said to be occasionally tired after
work but that is something that happens to most people particularly in
physically demanding jobs such as his. I would also note that he had not worked
for many months prior to returning to work at that time so that may have been a
factor in that respect.

[73]        
Mr. Hoy’s return to his sporting activities in September 2010 was
recommended by Dr. Yong. Even so, his inability to participate before that
time was not such that it directly and negatively affected his life on a daily
basis – he played tennis 2-3 times per week with friends or family, he played
basketball about two times per month and ran about once per month. His most
intensive sport was weightlifting which he did 1-2 times per week.

[74]        
Mr. Hoy’s recovery was no doubt aided greatly by the fact that he
is an active and fit person. In addition, this was not a case where
prescription medication was needed to assist in pain management.

[75]        
In all of these circumstances, I am of the view that Mr. Hoy’s
injuries have had a minor impact on his life or lifestyle. By all intents and
purposes, his injuries were substantially resolved within three months and he
was back to his regular working life and lifestyle. While there may have been
occasional bouts of pain thereafter, they were very sporadic and of little
duration.

[76]        
The cases cited by Mr. Hoy on this issue involved, in my view,
injuries of greater magnitude or of longer duration. The Lee and Dolha
cases cited by the defendants more closely parallel the circumstances found
here.

[77]        
I award the sum of $7,000 for non-pecuniary damages.

Past Loss of Earning Capacity

[78]        
Compensation for past loss of earning capacity is to be based on what
the plaintiff would have, not could have, earned but for the injury that was
sustained: Rowe v. Bobell Express Ltd., 2005 BCCA 141; M.B. v.
British Columbia, 2003 SCC 53.

[79]        
Pursuant to s. 98 of the Insurance (Vehicle) Act, R.S.B.C.
1996, c. 231, a plaintiff is entitled to recover damages for only his or
her past net income loss. This means that in the ordinary course the Court must
deduct the amount of income tax payable from lost gross earnings: Hudniuk v.
Warkentin (2003), 9 B.C.L.R. (4th) 324.

[80]        
The burden of proof of actual past events is a balance of probabilities.
An assessment of loss of past earning capacity involves consideration of
hypothetical events. The plaintiff is not required to prove these hypothetical
events on a balance of probabilities. The future or hypothetical possibility
will be taken into consideration as long as it is a real and substantial
possibility and not mere speculation: Athey at para. 27.

[81]        
At the time of the motor vehicle accident, Mr. Hoy was employed by Cascade.
He had been laid off at the time of the accident, but had been called back for
a one month period of time in May 2010.

[82]        
In August 2010, another temporary work opportunity at Cascade became
available for Mr. Hoy. Trina Simard, a maintenance resource coordinator
for Cascade, described that it was a full-time position, working approximately
40 hours per week, plus overtime. The position was to begin on August 20, 2010
and was to last for approximately one month.

[83]        
When Ms. Simard phoned Mr. Hoy to offer him the position, he
felt he had to decline due to his injuries. There was some confusion in the
evidence as to whether or not there was a discussion between Ms. Simard
and Mr. Hoy as to a gradual return to work program for this temporary work
so that Mr. Hoy could ease back into the job with his injuries. Mr. Hoy
says that he discussed such a work program with Ms. Simard, but that she advised
that no such program was available in the circumstances. Ms. Simard denies
that there was any discussion between her and Mr. Hoy of a gradual return
to work program being available to Mr. Hoy.

[84]        
This issue is complicated further by the fact that there is no reference
in Dr. Yong’s report to him recommending to Mr. Hoy a gradual return
to work program by the date of this discussion with Ms. Simard. In fact,
it makes sense that none would have occurred at that time since Mr. Hoy had
been laid off for some time and no further work was on the horizon. Dr. Yong
denied that there was any discussion with Mr. Hoy about a gradual return
to work program during the July 22 visit, which immediately preceded the date
of this discussion with Ms. Simard.

[85]        
What is equally curious is that some four days after Mr. Hoy had this
discussion with Ms. Simard, Dr. Yong provided Mr. Hoy with a
note on August 24, 2010 indicating that in Dr. Yong’s opinion, Mr. Hoy
was able to return to work on August 30 under a gradual return to work program.
Dr. Yong even denied that there was a specific discussion with Mr. Hoy
about him being recalled to work or such a program on August 24, when he wrote
the note.

[86]        
Despite the confusion in the evidence, I conclude on the facts that
there was no mention by Mr. Hoy to Ms. Simard about the possibility
of a gradual return to work program being available. It appears to me that Mr. Hoy
only later obtained the note from Dr. Yong in an attempt to justify his
refusal to take the job offered at Cascade just prior to August 20.

[87]        
Nevertheless, Ms. Simard was clear in her evidence that in any
event there was no possibility of Mr. Hoy returning to work at Cascade on
a gradual return to work program. Ms. Simard said that the work being
offered was the usual type of aircraft maintenance work performed by Mr. Hoy,
and that there was no basis upon which Cascade could offer “light duties" or
some reduced work schedule. Cascade’s expectations were that Mr. Hoy would
perform full shifts on both a daily and weekly basis. Accordingly, Ms. Simard
was unequivocal in stating that if Mr. Hoy had been unable to commit to
working full-time she would have passed him over and moved to the next person
on the seniority list that was physically able to do the job.

[88]        
I conclude that Mr. Hoy has proven on a balance of probabilities
that he would have accepted the temporary work offered by Cascade but for his
injuries sustained in the accident. The parties have agreed that in the event
of that finding the quantum of the loss is $1,251 on an after-tax basis.

Special Damages

[89]        
It is well established that an injured person is entitled to recover the
reasonable out-of-pocket expenses they incurred as a result of an accident.
This is grounded in the fundamental governing principle that an injured person
is to be restored to the position he or she would have been in had the accident
not occurred: X. v. Y., 2011 BCSC 944 at para. 281; Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 78.

[90]        
In this case the parties are agreed as to the amount of special damages in
the event that I concluded that Mr. Hoy was injured as a result of the
collision. Those damages relate to costs of the physiotherapy sessions.

[91]        
Accordingly, special damages are awarded in the amount of $540.

Conclusion

[92]        
In summary, damages are awarded as follows:

a)    Non-pecuniary
damages of $7,000;

b)    Past wage loss
of $1,251;

c)     Special
damages of $540.

Costs

[93]        
It is apparent from my findings above that the total award in favor of Mr. Hoy
is less than the statutory limit that would have applied had he commenced this
action in Small Claims Court. As such, Supreme Court Civil Rule 14(10)
provides:

A plaintiff who recovers a sum within the jurisdiction
of the Provincial Court under the Small Claims Act is not entitled to
costs, other than disbursements, unless the court finds that there was
sufficient reason for bringing the proceeding in the Supreme Court and so
orders.

[94]        
Whether there is a “sufficient reason” to bring an action in the Supreme
Court as opposed to the Provincial Court is assessed in relation to the time of
the initiation of the action: see Cairns v. Gill, 2011 BCSC 420 at para. 24.

[95]        
In Cairns, the Court confirmed that there may be many factors supporting
a decision to file the action in the Supreme Court even if the claim or
potential claim does not exceed the monetary limit:

[40]      The recent decision of
our Court of Appeal in Gradek (at para. 19) makes it clear that
“sufficient reason” to proceed in this Court may exist, “despite the fact that
it is apparent from the outset that the award will fall within the monetary
jurisdiction of the Provincial Court.”  In the context of the present
case, that means even if it was apparent from the outset that the plaintiff’s
claim was within the jurisdiction of the Provincial Court that, in and of
itself, does not constitute sufficient reason for the plaintiff to become disentitled
to costs. Because of how the appeal was framed in Gradek, the Court of
Appeal was not called upon to comment upon the reasons the trial judge relied
upon to constitute sufficient reason for Mr. Gradek to have brought his
action in Supreme Court.

[96]        
In Liu v. Thacker, 2012 BCSC 612, Mr. Justice Shultes made
this same point:

[77]      While the likely value
of the claim at the outset is a very significant factor, there may be other
sufficient reasons to bring the matter in Supreme Court, even when it is obvious
that the award will never exceed the Provincial Court limit: Gradek v.
DaimlerChrysler Financial Services Canada Inc. and Fletcher, 2011 BCCA 136.
Examples might be the need for counsel, which is not as economical in
Provincial Court, because of the complexity of the issues, the positions in the
litigation that are being taken by the defendant, or the value of pre-trial
procedures that are not available in Provincial Court, most notably
examinations for discovery.

[97]        
Shultes J. awarded the sum of approximately $11,620. He concluded in
that case that there was not a sufficient reason to have brought the matter in
the Supreme Court, particularly where it was clear from the outset that no
award would have exceeded $25,000 and where the plaintiff was capable of
presenting his case in Small Claims Court.

[98]        
This action was filed in June 2011. Liability was admitted by the
defendant’s when their response was filed in August 2011. The defendants submit
that prior to the filing of the notices of civil claim in this action on June
2011, it was clear to Mr. Hoy that any damage claim he may have had
clearly did not exceed $25,000.

[99]        
In fact by June 2011, Mr. Hoy’s injuries had all fully resolved. Dr. Yong’s
medical report of February 22, 2011 was in hand. His later report of March 20,
2012 reported only on a further visit in May 2011 which confirmed his complete
recovery and a further visit in March 2012 which also confirmed his complete
recovery.

[100]     In
addition, the amount of the wage loss from Cascade in August/September 2010 was
known or could have been calculated when the claim was filed. The amount of the
physiotherapy sessions from July to October 2010 was also of course known.

[101]     Mr. Hoy
points to the fact that the response to the civil claim filed on August 5, 2011
was made subject to Supreme Court Civil Rule 15 which provided for more
expedient and cost-effective methods of prosecuting and defending the claim. That
may be so, but the procedures in the Provincial Court for small claims are also
implemented with the intention of achieving these same goals.

[102]     Mr. Hoy
points out that the defendants conducted an examination for discovery of Mr. Hoy
on February 24, 2012. Mr. Hoy also sought to employ the mediation
provisions in April 2012; however, the mediation did not proceed. Nevertheless,
these procedures only occurred after the claim was commenced and therefore can
have no bearing on whether, at the time the claim was filed, there was a
sufficient reason to do so.

[103]     The crux
of Mr. Hoy’s argument is his submission that Dr. Yong’s medical
report of February 22, 2011 suggested an award in excess of $25,000. With
respect, I disagree. While Dr. Yong’s report contained some hyperbole
suggesting in some instances more injury than was the case (a “moderate”
severity soft tissue injury or that Mr. Hoy was “totally disabled”), the
actual facts of Mr. Hoy’s injuries and the resolution of those injuries
were needless to say, readily apparent. As stated above, I do not consider Mr. Hoy’s
reliance on his non-pecuniary damage cases cited above as justifying his
requested award. Nor do they stand as a “sufficient reason” to file the claim
in this Court.

[104]    
I am unable to conclude that there was any sufficient reason for Mr. Hoy
to bring these proceedings in this court. Accordingly, Mr. Hoy is entitled
only to his disbursements.

“Fitzpatrick J.”