IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120727

Docket: M127912

Registry:
New Westminster

Between:

Michael James Hill

Plaintiff

And

Timothy Swayne

Defendant

Before:
The Honourable Mr. Justice Armstrong

Reasons for Judgment

[1]            
In December 2009 the plaintiff was injured in a collision with a small
Honda leaving the driveway of a residence adjacent to Champlain Crescent near
Hollyhock Lane in Vancouver, B.C.

[2]            
The driver side corner of the defendant’s vehicle hit the right front
fender of Mr. Hill’s vehicle resulting in injuries to Mr. Hill’s neck, back and
paracervical muscles.

[3]            
Mr. Hill developed a stiff and sore neck and lower back.

[4]            
The defendant admitted liability for the accident and this trial concerned
the assessment of the plaintiff’s damages.  Mr. Hill claims general damages,
damages for past loss of income, future income loss, costs for future care and
other special damages.

Michael Hill

[5]            
Michael Hill is a 35-year-old father of two children. He lives with his
spouse Jolene in a house in Burnaby, British Columbia.

[6]            
In December 2009, he was employed as a foreman for Marine Roofing Repair
and Maintenance Service. He was described as a conscientious, punctual
employee. He was paid $30 per hour plus 10% for vacation pay and worked an
average of 35 hours per week.

[7]            
He was injured in the subject car accident on December 12, 2009 and was
off work from December 14, 2009 until January 4, 2010.

The Accident

[8]            
Mr. Hill was traveling north on Champlain Crescent in Vancouver in his
wife’s Chevrolet Blazer when the defendant’s Honda entered the roadway from a
townhouse complex and collided with the right front corner of his Blazer. Although
the vehicle remained drivable at the time, it was not repairable because of its
age and the measure of damage sustained. I cannot reach a conclusion about the
force of impact from the fact that it was not repairable.

The Injuries

[9]            
Following the accident, Mr. Hill noticed pain in his low back and his
neck.

[10]        
His neck pain is substantially improved; he said his neck bothers him only
once in a while but his back ache is more continuous.

[11]        
He described his pre-accident employment as a roofing foreman. He said
it involved bending and heavy lifting. He could be required to lift bags
weighing as much as 150 pounds but would normally lift weights of approximately
85 pounds. In addition to lifting and bending his work also involved reaching out.

[12]        
His injuries caused pain in his neck and low back. The back injury
prevented him from performing all the heavy lifting required at his work for
several months following the accident. As foreman, he had the authority to
direct the work of others and he was able to instruct his staff to do the heavy
lifting.

[13]        
Mr. Hill testified that for six to seven months after the accident, he directed
others to do the lifting; he returned to heavy lifting after that interval. As he
returned to lifting the usual weights again, he noticed ongoing discomfort in
his low back. Nevertheless, he continued to do his work in spite of his low
back pain. He said it was important to continue earning his income.

[14]        
Mr. Hill discussed some injuries he had suffered to his mid and low back
prior to December 2009. He had been carrying an 85 pound load and slipped on an
embankment. This injury did not appear to affect him at the time of the accident.
He also said that roofing is one of the most demanding trades and it was usual
for him to have aches and pains at the end of the day.

[15]        
However, since the accident, he takes 10 to 15 minutes each morning to
stretch which seems to afford him some benefit. As foreman, he continues to use
subordinates to carry the heavier loads but he does lift heavy loads himself when
necessary. On a regular basis, he said he cannot lift as much as before the
accident and has difficulty working the same length of day. He finds driving
causes exacerbation of his back pain. His ongoing symptoms are intermittent.

[16]        
Mr. Hill described limitations in his housework. He said that before the
accident, he could vacuum daily, cut his grass every two weeks and garden every
other day. Since the accident, he has not done this work and leaves it to his
wife. He said the garbage is too much to carry out insofar as it aggravates his
back. He does not rake leaves, or shovel snow and there has been a general
decline in the work done outside of his house. He said this was in contrast to
his pre-accident activities which he did without concern. He used to cook
frequently before the accident; he has hardly cooked since that time.

[17]        
Before the accident he “played golf once in a while” and “skied a bit”.
He has not returned to golf or skiing.

[18]        
Mr. Hill acknowledged giving a statement to an ICBC adjuster on December
14, 2009 at which time he reported that the injury did not prevent him from doing
any of his usual activities.

[19]        
Mr. Hill did not give detailed evidence as to the level of improvement he
has had since the accident. Overall, I concluded from his evidence that his
neck pain is largely resolved and his back pain has improved. He is able to
manage the heavier loads at work but feels limited in the weight of objects he
is required to lift. He has increased back discomfort at the end of his work
days.

[20]        
After the accident, Mr. Hill received massage/physiotherapy treatments
which he said were discontinued because he could not afford the treatments. He
attended twice a week for approximately one to one and a half months.

[21]        
Mr. Hill visited Dr. Hassam on December 14, 2009 for an assessment of
his condition and continued to visit him thereafter. Dr. Hassam testified that
during his final assessment of Mr. Hill on February 2, 2010, Mr. Hill reported
that he was back to work and fully recovered and there was nothing he could not
do physically. Mr. Hill did not recall telling the doctor he was fully
recovered when seeing him on that date.

[22]        
In March 2010, Mr. Hill was referred to a chiropractor by his solicitor.
Mr. Hill said the chiropractor helped him more than his physiotherapist.

[23]        
He said that he is still experiencing pain levels that fluctuate. It is
worse when he drives for a long time or takes airplane trips. The pain
interferes with his sleep; he wakes up almost every night. He described
intermittent throbbing pain but noticed that he is pain free for several days
after his chiropractic treatments.

[24]        
Mr. Hill discussed some very general plans to relocate to Ontario where
his extended family lives. His evidence indicates that this is an uncertain
plan but if he pursued the opportunity he would likely lose $10,000 per year in
income. He was speculating that continued work in his current position as a
roofing supervisor might be limited in the future. There is no evidence to
suggest that he will not be able to continue in his current position for the years
remaining prior to his retirement or that his income is threatened by the
injuries sustained in the accident.

Jolene Prill

[25]        
Ms. Prill has lived with Mr. Hill for nine years. She works full time
outside the home.

[26]        
They rent their home from the city of Burnaby. It is a three bedroom
residence with two bathrooms measuring approximately 1600 square feet. Before
the accident Mr. Hill was responsible for daily vacuuming, some cooking,
managing the dogs, and depositing the garbage for the municipal collectors.

[27]        
They occupy their house on a five-year lease, and have continued to
renew that lease in spite of Mr. Hill’s physical difficulties. They have not
contemplated moving due to his physical limitations.

[28]        
She confirmed that Mr. Hill attended physiotherapy and then chiropractic
treatments. She believed he stopped going to treatments because they could not
afford the charges. Although she has an extended health plan at her employment,
her partner was not able to access these because his injuries are due to a
motor vehicle accident. She said that Mr. Hill was taking over-the-counter pain
medications and some prescription painkillers. Ms. Prill’s evidence on this
point conflicted with Mr. Hill’s evidence who said he never took prescription
medications.

[29]        
Ms. Prill also said that Mr. Hill had taken daily treatments until six
months before trial; he said she was wrong on this point as he had not taken
daily treatments. He stopped physiotherapy treatments in February 2010 and
eventually took chiropractic treatments but never on a daily basis.

[30]        
Before the accident Ms. Prill and Mr. Hill would walk their dog every
night but since the accident they walk every second week only. She said the
backyard of the house is full of blackberries and Mr. Hill has not done the
pruning or yard work done for two years. Mr. Hill does not shovel snow or rake
the leaves. Prior to the accident he would work around the house most days
after work. Now, he is able to do only half the yard work.

[31]        
She said that they were intending to move across Canada to allow Mr.
Hill to pursue a job opportunity in Sudbury, Ontario because of the affects of
his injury superimposed on the onerous demands of his current job. Mr. Hill
contradicted Ms. Prill’s report that they” are now moving” to eastern Canada
due to his physical condition.

[32]        
She said that prior to the accident, Mr. Hill was energetic in the
mornings but now is grumpier and takes about twenty minutes to stretch before
starting his day.

Mr. Johnson

[33]        
Mr. Hill’s employer, Robert Johnson, described the plaintiff’s job as
physically demanding but observed that Mr. Hill asked to be on limited work
duties for only two to three months after his return to work.

[34]        
Mr. Johnson described Mr. Hill as a punctual and conscientious journeyman
roofer. As supervising the removal and replacement of roofs, Mr. Hill was able
to ask other laborers on the job to do some of the work he was unable to do on
his return. Mr. Johnson told Mr. Hill to be careful when he was having
difficulty lifting heavier loads. Mr. Johnson is not often on job sites and
does not have a great deal of firsthand knowledge about Mr. Hill’s work
performance.

[35]        
Mr. Hill described his work as involving bending and heavy lifting of
weights up to 150 pounds. He said that before the accident he would generally
lift objects weighing 85 pounds. Mr. Johnson said that the job required lifting
between 70 and 90 pounds. He said that since the accident, Mr. Hill does not
lift as much as before but there was no indication he is unable to lift either
heavy loads or that any physical limitations might affect his current and
future prospects.

Medical Evidence

Dr. I. Hassam

[36]        
The defendant tendered a report by Dr. I. Hassam who attended for
cross-examination on that report.

[37]        
Dr. Hassam was a family physician who practiced in a walk-in clinic. He
completed a CL 19 report addressed to ICBC in which he chronicled the
plaintiff’s injuries and recovery up to February 2, 2010. In cross-examination,
he confirmed that on his initial consultation, the plaintiff complained of low
back stiffness, and was observed to be tender in the para-cervical and
para-lumbar areas.  He testified that Mr. Hill’s grade one soft tissue injury involved
no objective evidence of injury or physical findings other than his complaints
of neck and low back stiffness. Dr. Hassam had recommended over-the-counter
muscle relaxants and manual therapy.  He noted that Mr. Hill had been off work
for three weeks and returned to work on January 5, 2010. Mr. Hill described his
occupation to the doctor as “heavy work”. Dr. Hassam observed that Mr. Hill was
fully recovered by February 2, 2010 and by that date Mr. Hill was back at work.

[38]        
Mr. Hill’s physiotherapy treatments ended around February 2, 2010 and
this date corresponds to Dr. Hassam’s last consultation and observation that
the patient was fully recovered. As at the completion of his report, he noted
that Mr. Hill was not disabled from working full time nor was he incapable of
performing his non-employment activities.

[39]        
I accept Dr. Hassam’s observations that by February 2, 2010, Mr. Hill
was back at work and he was not experiencing any limitations on his ability to
work or to perform the duties and physical demands of his job.

Dr. O’Neill

[40]        
Dr. O’Neill is a chiropractor with 20 years experience in the field of
diagnosing and treating injured patients. Defense counsel conceded that Dr. O’Neill
was qualified as a chiropractor to give opinion evidence in the assessment and
treatment of musculoskeletal injuries and back pain arising from non-complicated
back injuries and mechanical back pain.

[41]        
The plaintiff was referred to Dr. O’Neill by his solicitor. During their
first meeting on March 2, 2010, he obtained a history of the plaintiff’s
injuries, his pre-accident history and he conducted a physical examination of
the plaintiff. On that day, he observed the plaintiff had tenderness and pain
“on palpation in the paraspinal muscles in the suboccipital muscle groups at
the base of the skull and the left posterior and anterior paraspinal muscles.”
He noted some restriction in motion in that area as well as tenderness in the
right shoulder muscles.

[42]        
On his first visit, Mr. Hill reported to Dr. O’Neill that his  symptoms
were improving and his pain was worse in the evenings but not constant.

[43]        
Dr. O’Neill observed a limitation in the range of motion in the
plaintiff’s lumbar spine with paraspinal muscle guarding and asymmetrical
motion about the right sacroiliac joint. His posterior lateral muscles were extremely
tender. There was tenderness in the hip flexors and internal rotator muscle
groups.

[44]        
The doctor concluded that, as of his first interview, the plaintiff had
symptoms consistent with moderate chronic or late whiplash syndrome. He said
that given the nature of the trauma sustained by the plaintiff, the motor
vehicle collision is the logical cause of Mr. Hill’s ongoing complaints. The
diagnosis was summarized as:

·      
chronic neck pain

·      
mechanical low back pain in the lumbar spine

·      
sacroiliac syndrome

·      
upper dorsal /interscapular pain

[45]        
Dr. O’Neill prescribed exercises to improve Mr. Hill’s core stability
along with chiropractic manual therapy used to improve his spinal motion. The
plaintiff noted some improvement with the integrated therapy approach and his leg
length discrepancy (about 1 cm) returned to normal. His recovery was
significant at times but he reported to Dr. O’Neill some continuing limitations
in his work, recreation and household work.

[46]        
Dr. O’Neill completed a Nachies test of Mr. Hill which indicated that the
patient had some joint dysfunction or a disc injury accounting for the
chronicity of low back pain. He noted it was not possible to establish
causation of any pertinent findings on diagnostic imaging. Based on his
clinical assessment, however, he said that some permanent impairment is likely in
Mr. Hill’s case with respect to the sacroiliac joint and the lumbar and
cervical spine.

[47]        
Dr. O’Neill’s history of Mr. Hill’s injuries included this report from
Mr. Hill:

Pain was progressive and
increased significantly in intensity in the following weeks.

[48]        
Dr. O’Neill said that Mr. Hill’s condition was chronic but he was unable
to identify any facts in his report that would support this conclusion. He said
that his diagnosis was likely derived from his observation after March 1, 2010
but could not say what those observations might have been.

Analysis of Medical Evidence

[49]        
There are several limitations with respect to Dr. O’Neill’s report. The
facts and assumptions in Dr. O’Neill’s written opinion dated October 2, 2011
came solely from his examination on Mr. Hill’s first attendance at his office
on March 1, 2010.

[50]        
Dr. O’Neill did not report any findings relating to Mr. Hill after March
1, 2010. He said that he would have made observations of the patient but he had
not recorded them and they did not form the basis of the opinion he gave at
trial. Other than the repetition of the Nachies test, his opinion did not
reflect any differences in the plaintiff’s health or observations of changes
that may have occurred after the initial visit in March 2010.

[51]        
Dr. O’Neill seemed quite puzzled when questioned about the fact that he
based his opinion solely on the observations made at his first interview with
Mr. Hill. There was no evidence of subsequent examination results. The only
follow-up diagnostic mentioned in the report was the Nachies test; every other
observation besides the initial exam was based on Mr. Hill’s self-reporting.

[52]        
Dr. O’Neill was not made aware Mr. Hill saw his general practitioner
only three times regarding his injuries. He was not informed of Dr. Hassam’s
opinion that Mr. Hill was fully recovered by February 2, 2010 nor did he review
the physiotherapist records indicating that Mr. Hill had no symptoms six weeks
after the accident.

[53]        
There are apparent discrepancies between the opinions of Dr. Hassam and
Dr. O’Neill. Dr. O’Neill said that at the time of his first visit, the
plaintiff indicated that he was back to work doing minimal duties. Dr. O’Neill
qualified that response by saying that Mr. Hill had returned to work doing some
but not all regular duties; however, Dr. Hassam had reported that Mr. Hill was
doing his regular duties in January 2010. Dr. O’Neill indicated that his
opinion would have been influenced by the fact that Mr. Hill was at work doing
normal duties in January 2010 if that fact had been brought to his attention.

[54]        
In my view, Dr. O’Neill’s acceptance of Mr. Hill’s statement that his
symptoms became progressively worse in the weeks after the accident is not
supported by the evidence of Dr. Hassam. It is quite clear that Mr. Hill’s
symptoms improved over the weeks after the accident. It is also apparent that
Dr. O’Neill was not accurately informed of the circumstances under which Mr.
Hill returned to work and the state of his health when he finished his
physiotherapy treatments.

[55]        
The defendant urges the Court to conclude that Mr. Hill was fully
recovered from the car accident injuries by February 2, 2010. He argues that
Dr. Hassam observed no objective signs of injury and incorporated Mr. Hill’s
reports in concluding that he was fully recovered. It is difficult to reconcile
Mr. Hill’s condition on February 2, 2010 with his assertions at trial of
ongoing discomfort that limits his function.

[56]        
In view of the limitations of Dr. O’Neill’s report, I accept that Mr.
Hill may have some ongoing low back pain but that the evidence does not satisfy
me, on the balance of probabilities that the severity and extent of his
reported symptoms relate to injuries sustained in the accident. I am unable to
accept the proposition that the car accident left Mr. Hill with significant
ongoing symptoms that might disable him from doing his normal work duties. I
make this observation in particular reference to Dr. O’Neill’s acknowledgment
in cross-examination that the symptoms upon which he based his report were
limited to those extant on March 1, 2010.

Conclusion

[57]        
I accept that Mr. Hill was injured while driving his spouse’s 1991
Blazer on December 12, 2009 when his vehicle was struck on the front right side
by the defendant’s car. The damage was sufficient to render the vehicle beyond
repair. I am satisfied that Mr. Hill took medical advice from Dr. Hassam over
three visits commencing December 14, 2010. I note that he was prescribed
over-the-counter muscle relaxants and took manual therapy on the advice of his
physician. I accept that he took physiotherapy treatments from Performax Health
Group on December 14, 2009, December 16, 2009 and February 2, 2009. In total,
Mr. Hill took 13 physiotherapy treatments commencing December 14, 2009 and
ending February 2, 2010.

[58]        
I am satisfied that Mr. Hill’s disability from the immediate aftermath
effects of the accident ended by January 5, 2010 and that he had returned to
his normal duties at work.

[59]        
I accept Mr. Hill suffered a whiplash injury causing pain to his neck,
low back and lumbar spine. For the reasons mentioned above, I do not accept Dr.
O’Neill’s opinion that Mr. Hill has suffered a permanent injury or that he has
a permanent impairment of his physical function as a result of the accident.

Non-pecuniary damages

[60]        
The plaintiff seeks non-pecuniary damages of $35,000. The defense argued
that the plaintiff’s non-pecuniary damages should be measured at $3,500 to
$4,000.

[61]        
The plaintiff referred to the following cases involving moderate
whiplash injuries:

·      
Carter v. Beeksma (17 July 1995), Vancouver B920112
(B.C.S.C.): This case is quite unlike the plaintiff’s circumstances in that Mr.
Carter suffered a mild to moderate whiplash injury coupled with anger and
stress which caused depression and anxiety and real pain. He was awarded $45,000;

·      
King v. Horth, 2009 BCSC 1114: Mr. King’s injuries were
mild to moderate injuries two and a half years after the accident. Mr. King
received a nerve block injection which provided immediate improvement for his
neck pain. His whiplash injuries were significant and required treatment over a
longer period of time. He also had headaches and shoulder discomfort. He was
awarded $35,000 in non-pecuniary damages;

·      
Dedic v. Deschenes, 2005 BCSC 433: This case is
significantly different from the evidence presented by Mr. Hill. Mr. Dedrick
was involved in two car accidents resulting in symptomatic neck pain for three
years. He suffered a hernia that was repaired by surgery. He suffered
psychological stresses. He was awarded $35,000; and

·      
Filimek v. Braaten, 2009 BCSC 866: The plaintiff was an
extremely active athlete who was prevented from continuing those activities due
to the injury. He returned to some of his athletic pursuits, but continued to
have pain in his neck and back, including back spasms. He continued to do
physiotherapy for two years after the accident. He was awarded $30,000;

[62]        
The defendant relied on the following four authorities to support their
argument that the damages ought to be assessed in the range of $3,500-$4,000:

·      
Wong v. Leung, 2005 BCSC 617: This case deals with the
deduction of Part 7 benefits after the assessment of damages in a tort action.

·      
Brar v. Kaur, 2010 BCSC 1220: This was a summary judgment
and assessment for damages arising from a very minor accident. The plaintiff
suffered a mild soft tissue injury to his neck and back. The plaintiff was
fully recovered within six months. He was awarded $4,000;

·      
Bagasbas v. Atwal, 2009 BCSC 512: Mr. Bagasbas suffered a
whiplash injury to his neck, shoulder and upper back that resolved within three
months. He was awarded $3,500;

·      
Saluja v. Wise, 2007 BCSC 706: Ms. Saluja suffered a soft
tissue injury to his neck, left wrist and forearm. Her injuries improved within
one month and generally resolved within three months after which she had
intermittent pain. She was awarded $2,500.

[63]        
To these authorities I add the following case:

·      
Reichennek v. Archibald, 2008 BCSC 1304: The plaintiff was
off work for three weeks with neck and back pain that significantly resolved
within three to four months after the accident. She continued to experience
some discomfort and limitation of her activities, albeit on a gradually
improving basis over time up to the point of trial. At trial, her headaches
had resolved but there was some lingering discomfort and stiffness in her neck
and back. That discomfort was essentially resolved at the time. She was awarded
$22,000.

[64]        
The compensation awarded must 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: Trites v. Penner, 2010 BCSC 882 at paras. 188-189.

[65]        
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined
the factors to be considered when assessing non-pecuniary damages at para. 46:

[46]      The inexhaustive list of common factors cited in 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 BCCA 54).

[66]        
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.

[67]        
The correct approach to assessing injuries which depend on subjective
reports of pain was discussed by McEachern C.J. in Price v. Kostryba (1986),
70 B.C.L.R. 397 (S.C.). There he refers to his earlier decision, Butler v.
Blaylock (7 October 1981), Vancouver B781505:

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.

[68]        
Mr. Hill suffered a neck strain and lumbar strain and received 13 physiotherapy
treatments ending February 2, 2010. He was absent from work from December 14,
2009 to January 4, 2010.

[69]        
Dr. Grant O’Neill, a chiropractor, treated Mr. Hill from March 1, 2010
seven times until April 14, 2010, followed by treatments on July 25, August 3
and October 5, 2011.

[70]        
I accept Dr. O’Neill’s initial diagnosis was that Mr. Hill’s symptoms
were consistent with a moderate chronic or late whiplash syndrome. This was
supported by the facts set out in his opinion discussed above. I do not accept
Dr. O’Neill’s opinion that Mr. Hill is suffering from a permanent impairment
from injuries related to this car accident. The positive Nachies test implicates
a facet joint dysfunction or disc injury. These are not proven to be caused by
the accident and, as I have observed, the evidence leads me to conclude on the
balance of probabilities that the severity of the plaintiff’s ongoing
complaints of ongoing symptoms are not caused by the accident.

[71]        
I am concerned about the reliability of Mr. Hill’s evidence,
particularly as he discussed his inability to do all of the chores around the
house. His job involves heavy lifting and hard physical work and I do not
accept that he is disabled or impaired from doing housework type activities
such as taking the trash from his house to the collection point. He was either
exaggerating the impact of his symptoms or taking unreasonable measures to
avoid very modest efforts at domestic chores around his house.

[72]        
Ms. Prill’s evidence touching on Mr. Hill’s medications and treatment
suggested that she was exaggerating the effects of his injuries. I was also
concerned about the vigor with which she asserted that Mr. Hill would be
pursuing lower paying work in Ontario because of his physical condition when
Mr. Hill was much less precise or certain about his plans, and the connection between
those plans and his injuries.

[73]        
Mr. Hill earned income in the amount of $58,840 in 2008 and $58,731 in
2009. His 2010 income was $61,472. His rent is $2,000 per month. This income
coupled with the fact that his wife is working full time, was inconsistent with
his evidence that he stopped taking therapy because he could not afford the
expense.

[74]        
I accept that an injury of the type suffered by Mr. Hill was
particularly troublesome in light of the heavy work in his role as a
journeyman/foreman roofer. A back injury to a person in his circumstances, even
if not disabling in itself, would require extra care and watchfulness on the
job to ensure that the injury is not exacerbated. In considering the criteria
in Stapely, it is significant that Mr. Hill, who was a heavy
lifting labourer, injured his back and that the injury has lingering effects.
The injuries have minimally impacted his lifestyle, and he has dealt stoically
with his employment.

[75]        
The severity of his pain was modest and the extent to which the duration
of his discomfort was related to the accident is uncertain. However, I accept
that there is some connection between the collision and his ongoing complaints.

[76]        
I have considered various cases cited by counsel and additionally
referred to the Reichennek case. Although comparisons are of some
assistance, I am to focus on the factors set out by the Court of Appeal and the
specific circumstances of the plaintiff in this particular case. In the final
analysis, I would award the plaintiff non-pecuniary damages of $20,000.

Past Income Loss

[77]        
The defendant agrees that the plaintiff’s net wage loss is $2,446. The
plaintiff assessed the net past wage loss of $1,631. Given the concession
offered by the defendant, I will award the plaintiff $2,446 for past income
loss.

Impaired Income Earning Capacity

[78]        
There was no evidence that suggests that Mr. Hill’s future income is
compromised as a result of the injuries. There was some discussion about him
looking at a new position in Ontario where he had originally come from to British
Columbia.

[79]        
There is no evidence of a real or substantial possibility that Mr. Hill
will suffer a loss of income or that his overall ability to earn income has been
compromised by the accident.

[80]        
Therefore, I do not think any claim has been made out for damages for
loss of income earning capacity assessed as a capital asset. In order for there
to be a foundation for such damages, there must be a finding of a “substantial
possibility of a future event leading to an income loss” (Perren v. Lalari,
2010 BCCA 140 at para. 32). I have found that the plaintiff has suffered
injuries that have not significantly interfered with his ongoing employment. He
has not shown that the injuries arising from the accident pose a real or
substantial possibility of leading to a future loss of income or an impairment
of his earning capacity. Lastly, Mr. Hill has been able to carry on at work
through the more acute phase of the injuries properly attributable to the
accident, and there is no reason to believe that his ability to perform
strenuous occupations is apt to be impaired in the future as a result of the
injuries suffered in the accident, directly or indirectly. There will therefore
be no award for damages for loss of income earning capacity.

Special Damages/Cost of Future Care

[81]        
The plaintiff argued that his claim for special damages incurred to date
was $830 for physiotherapy treatments and between $700 and $800 for
chiropractic and massage treatments. The defendant argues that any amount to be
awarded to the plaintiff for past special damages will be deducted pursuant to s.
83 of the Insurance Vehicle Act, R.S.B.C. 1996, c. 231. He says that the
endpoint for special damages is February 1, 2010 and that expenses incurred
after that date are not compensable.

[82]        
In my view, the costs of the plaintiff’s attendance with Dr. O’Neill
until May 12, 2010 are properly compensable as special damages and amount to
$1,530.

[83]        
I am not satisfied that the evidence of Dr. O’Neill’s chiropractic
treatments from June 1, 2011 to October 5, 2011 are compensable as treatment
expense necessitated by the injuries due to the motor vehicle accident.
Similarly, I do not accept the plaintiff’s calculation that he has proven on
the balance of probabilities a need for ongoing treatment due to the accident
that would justify an award of $8,407 as requested.

[84]        
I do not accept that the plaintiff will suffer future costs of care and
dismiss that claim.

Summary

[85]        
Accordingly, the plaintiff will recover non-pecuniary damages of $20,000,
past income loss of $2,446 and $1,530 for special damages.

[86]        
The plaintiff will be entitled to costs. If the parties are unable to
agree on the measure of costs they have liberty to speak to this issue.

“Armstrong J.”