IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120727

Docket: 19093

Registry:
Cranbrook

Between:

Lenord Russell

Plaintiff

And

Kenneth Manson
Parks

Defendant

Before:
The Honourable Mr. Justice Abrioux

Reasons for Judgment

I         INTRODUCTION

[1]            
Lenord Russell seeks damages for the injuries he sustained in a motor
vehicle accident which occurred on August 21^st, 2008 (the “Accident”).

[2]            
The Accident occurred at the Trackside Mall in Cranbrook B.C. after Mr. Russell
had exited a bakery store. He had just crossed over a concrete barrier which
delineates parking stalls and entered onto the mall’s parking lot. He was
struck by a vehicle owned and operated by the defendant which was in the
process of being parked.

[3]            
Liability for the Accident is in issue. The plaintiff seeks damages for
pain and suffering, past and future loss of earning capacity and cost of future
care.

II        THE PLAINTIFF PRIOR TO THE ACCIDENT

[4]            
Mr. Russell was born in Cranbrook on November 17, 1960. He is now
51 years old. He has lived in Cranbrook most of his life. Since 2006 he has
lived with his mother, Margaret Russell, in the family home. Mrs. Russell
has sustained a series of strokes. According to the plaintiff she is “not too
good on her own”. The plaintiff’s father passed away before the plaintiff moved
back in with his mother.

[5]            
Mr. Russell graduated from Mt. Baker Senior Secondary in Cranbrook
in 1979. He was in the Specified Employment Training Program. This provided the
student with work experience in various occupations. In Mr. Russell’s case
this involved labouring work including removal of railroad ties, working on a
Christmas tree farm, etc.

[6]            
Following high school, the plaintiff worked in these and other
occupations including a saw mill, fire fighting and fire suppression. He also
worked at a wrecking yard stripping cars for parts to be resold, doing
“slashing”, that is clearing land for the installation of gas lines, and other
forms of heavy physical work.

[7]            
The plaintiff’s pre-Accident earnings history was modest. Although he
did have a union paid position many years prior to August of 2008, in the years
leading up to the Accident his income was derived from doing yard work in the
summer, primarily mowing lawns, snow shovelling in the winter, and performing
motor vehicle repairs from time to time for family and friends.

[8]            
Mr. Russell did file income tax returns for some of the years prior
to the Accident. He reported little or no income. In 2009, he filed an income
tax return for 2008. He reported total earnings from employment of $11,500 for
that year. It was his evidence this was his approximate income for the years
leading up to the Accident and he probably should have reported his correct
income but had not done so. The plaintiff did not have any documents
substantiating the amounts he received for the work he had done such as
invoices or receipts for expenses incurred. There was evidence led on his
behalf, however, from a number of individuals, including family members, who
had hired him over the years. By and large, the plaintiff was paid $10 per hour.

[9]            
There was considerable variation in the amounts the plaintiff would earn
on a monthly basis prior to the Accident. This is shown by the fact he would
pay his mother $300 to $400 per month for room and board when he could. When he
had extra money he would contribute additional monies to the household
expenses. He had not owned his own vehicle for some time.

[10]        
Mr. Russell was described by several of the witnesses as a big man
or “big guy”. At the time of the Accident he weighed approximately 280 pounds.
He is 6’ 4” tall. His weight increased to as much as 320 pounds after the
Accident. It was the plaintiff’s evidence his weight had remained stable for
approximately 10 years prior to August 2008. He was described by his family
physician as being deconditioned prior to the Accident although the extent of
this deconditioning on his day-to-day activities is in dispute.

[11]        
When Mr. Russell was working in the bush, either while performing
his fire fighting or suppression duties or slashing trails, he had to transport
equipment. This included hoses, generators, and other pieces of heavy
equipment. It was his evidence he would often be required to carry equipment
for a considerable distance. At times he had also worked for a moving company,
which involved moving deep freezers. He had been able to perform all of these
activities.

[12]        
The plaintiff says he was an avid outdoorsman. He hunted, did river fishing,
and would go on hikes, some of which would last as long as eight hours over
difficult terrain. His fishing would involve going up and down steep river
banks. The hunting activities included having to transport large game animals
such as deer and elk back to his vehicle. It was his evidence and that of
friends who testified on his behalf, that he could perform these activities
with little or no difficulty. Although he was big, he could keep up with most
of them.

[13]        
The plaintiff’s pre-Accident medical history is relevant to the
following extent. He sustained an injury to his left leg as a youth when a car
apparently rolled over on him. In addition, he had two left ankle ligament
injuries in 1981 and 1984. Furthermore, in May 2004 he sustained a fracture to the
left ankle. This latter injury caused him to be off work for approximately
seven months. According to Mr. Russell, his left leg/ankle did continue to
be painful from time to time prior to the Accident but he did not let the pain
bother him. He did walk with a slight limp but the injury did not impede his
ability to do the work he was performing or interfere with his strenuous
recreational activities.

[14]        
It became known as a result of medical imaging taken following the
Accident that the plaintiff had osteoarthritis in both knees. Mr. Russell
denied having any symptoms to his right knee prior to the Accident and there is
nothing in the pre-Accident records which suggests otherwise.

[15]        
In July 2009, prior to the plaintiff undergoing arthroscopic surgery for
an injury to the right knee alleged to result from the Accident, it was noted
he had a markedly elevated blood pressure. This resulted in his being treated
for hypertension. The evidence of the cardiologist Dr. Saul Isserow was
that the hypertension was longstanding and predated the Accident. Furthermore
the onset of this condition was not caused or contributed to by the injuries
sustained in the Accident.

III        THE ACCIDENT

[16]        
The plaintiff testified the Accident occurred around 11:00 a.m. He had
walked to the Trackside Mall. He had been there on many occasions over the
years. There was a bakery he would go to eight to ten times a year. There was
also a Windsor Plywood store at the mall which he would attend from time to
time to purchase supplies.

[17]        
The mall generally runs in a north-south direction. Windsor Plywood is
the last store on the south side. The last business on the north side is a
medical supply store. The bakery in question is several doors down, to the
north of Windsor Plywood.

[18]        
As a person exits from any of the stores at the mall, there is a walkway
of approximately four and a half feet in width. The boundary of the walkway is
a series of low concrete blocks which form a barrier from the parking area. This
walkway also goes in a north-south direction and is parallel to the store
fronts of the various businesses.

[19]        
On the parking lot side of the barrier are painted lines which indicate
parking spaces. The lines are angled to the north of the mall, that is, in the
general direction of the medical supply store. There are lined parking spaces
on the other side of the parking lot. They are also angled towards the north.

[20]        
The plaintiff stated that as he left the bakery, he turned to his left
and proceeded down the walkway in the direction of Windsor Plywood. He stayed
in the walkway and then proceeded on a diagonal and onto the parking lot. He
was approximately six feet down one of the parking spaces when the Accident
occurred. He recalled getting hit on the right knee by the front passenger side
of the defendant’s van. He fell down and to his left. He could not say what the
defendant’s speed was. The impact “chewed up” the sole of his left shoe. He was
sitting on the ground after he was hit. He could not recall much else.

[21]        
On cross examination Mr. Russell acknowledged there was good
visibility that day and he was aware there could be traffic in the mall. He
stated he could not recall if he was looking up or down just before the impact.
He was then referred to his evidence on examination for discovery and in
particular his statement to the effect that immediately prior to the Accident
he “just looked up and was hit . . . Kind of looking down and looked up, bang,
and I walked right into it. The van was right there.” He said this evidence was
“pretty well true”.

[22]        
Robin Webber also testified. Mr. Webber serviced dry cleaning machines.
His employer had an office at the mall. He said he was just about to enter the
office. He did not actually see the Accident occur. He looked up and saw the plaintiff
on the hood of a car. He rolled off the side of the car and fell into an empty
parking space. He was screaming in pain and holding his knee. Mr. Webber
estimated the plaintiff and defendant were approximately 10 feet away from the
buildings in the mall.

[23]        
The defendant Kenneth Parks testified. He was well familiar with the
mall. His business had previously had its office there. In the time frame
leading up to August 2008 he would still attend the mall two or three times a year
to go to Windsor Plywood.

[24]        
Mr. Parks testified that he entered the mall from the south
entrance way. He was intending to park in front of Windsor Plywood. There was
one vehicle which was parked in front of the store. He decided to park in the
neighbouring stall. He did a shoulder check over his right shoulder as he made
the wide turn to get around the parked vehicle. In doing so he observed a man
in front of the entrance to Windsor Plywood. He then did two additional
shoulder checks before starting to enter the parking space. He estimates he was
proceeding at approximately one to two miles per hour.

[25]        
As he entered the parking space “the next thing I know he was right in
front of me.” He said the plaintiff put his hands on the front of his van. He
immediately braked. When he got out of his van the plaintiff was on the ground.
His mouth was full of food. Mr. Parks was concerned the man would choke. Mr. Parks
stated that when he first observed the plaintiff he was in front of his van. By
the time he reached him, the plaintiff was to the right of the front fender.

[26]        
On cross examination, the defendant agreed that due to the angling of
the parking stalls, it would have been easier to park had he entered the mall
at the northern entrance. He acknowledged he wore progressive lenses and did
not have good peripheral vision when looking to the right.

IV       THE PARTIES’ POSITION REGARDING LIABILITY

[27]        
The plaintiff’s position is that although the defendant was entitled to
enter the mall parking lot where he did, he was negligent in that he failed to
see the plaintiff who was clearly there to be seen. The parking lot met the
definition of “highway” as set out in section 1 of the Motor Vehicle Act,
R.S.B.C. 1996, c. 318 (the “Act”), which was the applicable
legislation in effect at the date of the Accident. Section 181 of the Act
imposed “an overriding duty” on the defendant to take proper care not to injure
the plaintiff. He should bear the entire or, in the alternative, the majority
of the responsibility for the Accident. I note the words “overriding duty” do
not appear in the Act.

[28]        
The defendant’s position is that he was there to be seen. The plaintiff
had left a place of safety, being the walkway. Pursuant to section 180 of the Act
he had to yield the right of way to the defendant. The plaintiff breached both
his statutory and common law duties, the latter including the obligation to
take reasonable steps in the furtherance of his own safety. He submits the plaintiff
was entirely responsible for the Accident. In the alternative, a comparison of
the parties’ relative blameworthiness should result in an apportionment of
liability of 75% to 90% against the plaintiff and 10% to 25% against the defendant.

V        DISCUSSION AND ANALYSIS REGARDING LIABILITY

[29]        
The applicable sections of the Act are the following:

Rights of way between vehicle and pedestrian

179 (1) Subject to section 180, the driver of a vehicle
must yield the right of way to a pedestrian where traffic control signals are
not in place or not in operation when the pedestrian is crossing the highway in
a crosswalk and the pedestrian is on the half of the highway on which the
vehicle is travelling, or is approaching so closely from the other half of the
highway that he or she is in danger.

(2) A pedestrian must not leave a curb or other place of
safety and walk or run into the path of a vehicle that is so close it is
impracticable for the driver to yield the right of way.

Crossing at other than crosswalk

180 When a pedestrian is crossing a highway at a point not in
a crosswalk, the pedestrian must yield the right of way to a vehicle.

Duty of driver

181 Despite sections 178, 179 and 180, a driver of a vehicle
must

(a) exercise due care to avoid colliding with a
pedestrian who is on the highway,

(b) give warning by sounding the horn of the vehicle
when necessary,

. . .

[30]        
Breach of a statutory duty under the Act is neither negligence
per se nor prima facie evidence of negligence. Rather it is simply
evidence of negligence. Canada v. Saskatchewan Wheat Pool, [1983] 1
S.C.R. 205 at 222-26.

[31]        
Although I was referred to several authorities which deal with the
competing duties of pedestrians and the operator of a motor vehicle, these
types of cases are highly fact specific.

[32]        
In my view, the defendant was in breach of both his statutory and common
law duties which he owed the plaintiff. His breach of his statutory duties is
evidence from which I can conclude in consideration of all the evidence that he
was negligent. In particular, although Mr. Parks did have the right of
way, he failed to keep a proper lookout for persons, such as the plaintiff, who
he either saw or, acting reasonably, ought to have seen prior to the Accident
occurring.

[33]        
I find that Mr. Parks was proceeding slowly immediately prior to
the Accident. He was likely going somewhat faster than his estimate of one to
two miles per hour but still at a safe and slow speed considering the fact he
was bringing his vehicle to a stop while in the process of parking.

[34]        
I accept he made three separate checks over his right shoulder, the
first as he made his wide turn to get around the vehicle which was parked, the
others after he saw the individual in front of the Windsor Plywood store. But I
also find it was likely the last two checks took place just before and as the defendant
entered the parking space which diverted his attention from the fact the plaintiff
had crossed over the concrete barrier and had placed himself directly in front
of his van. Had the defendant been keeping a proper lookout he would have seen
the plaintiff who was clearly there to be seen.

[35]        
In so far as causation is concerned, I find that the defendant, at the
speed he was travelling, could have brought his vehicle to a stop without
coming into contact with the plaintiff had he been keeping a proper lookout as
to what was taking place in front of him.

[36]        
I also conclude the plaintiff was contributorily negligent. I find he
left a place of safety, being the walkway, and stepped over the concrete
barrier. By doing so, he immediately placed himself right in front of the defendant’s
vehicle which was in the process of being parked. Mr. Russell was unable
to provide any explanation for his actions. His counsel suggested there may
have been an open door to one of the businesses which impeded the plaintiff’s
passage or a concern that at the end of the walkway near Windsor Plywood there
was a ‘blind corner” as a reason for the plaintiff’s actions. He then indicated
it would be shear speculation to conclude this was the reason for the plaintiff
acting as he did. I agree.

[37]        
 Based on the plaintiff’s evidence on examination for discovery referred
to above, I conclude he was looking downwards as he stepped over the concrete
barrier and, when he looked up, realized the defendant’s vehicle was right in
front of him. He was not, in my view, paying attention when he did so and, accordingly,
failed to take reasonable care for his own safety.

[38]        
The issue then becomes how liability should be apportioned. In
considering this question from the perspective of relative blameworthiness, some
of the criteria referred to in Aberdeen v. Langley (Township),
2007 BCSC 993, varied on other grounds 2008 BCCA 420, are germane. These are
summarized at para. 62 and 63:

[62] Thus, fault is to be determined by assessing
the nature and extent of the departure from the standard of care of each of the
parties. Relevant factors that courts have considered in assessing relative
degrees of fault were summarized by the Alberta Court of Appeal in Heller
v. Martens, supra, at ¶ 34 as follows:

1. The nature of the duty owed by the tortfeasor to the
injured person

2. The number of acts of fault or negligence committed by a
person at fault

3. The timing of the various negligent acts. For example,
the party who first commits a negligent act will usually be more at fault than
the party whose negligence comes as a result of the initial fault

4. The nature of the conduct held to amount to fault. For
example, indifference to the results of the conduct may be more blameworthy… Similarly,
a deliberate departure from safety rules may be more blameworthy than an
imperfect reaction to a crisis

5. The extent to which the conduct breaches statutory
requirements. For example, in a motor vehicle collision, the driver of the
vehicle with the right of way may be less blameworthy

[Authorities omitted.]

See also Vigoren v. Nystuen, supra, at
¶ 90 (summarizing these same factors). 

[63] Many of the above-noted factors are
discussed in Chiefetz, Apportionment of Fault in Tort, supra, at
pp. 102-104. Considering that, I conclude it would be appropriate to add the
following as relevant factors:

6. the gravity of the risk created;

7. the extent of the opportunity to avoid or prevent the
accident or the damage;

8. whether the conduct in question was deliberate, or
unusual or unexpected; and

9. the knowledge one person had or should have had of the
conduct of another person at fault.

[39]        
In Aberdeen, it was stated that, “[a]nother important factor in
assessing the relative degree of blameworthiness of the parties is the
magnitude of the departure from the standard of care” (para. 66).

[40]        
I conclude the plaintiff’s degree of fault is greater than the defendant’s.
The defendant was entitled to take the route he did in order to park his
vehicle. He was travelling at an appropriate rate of speed under the
circumstances. Ironically, it was his performance of a safety check to his
right which resulted in his momentarily not seeing what was occurring in front
of him.

[41]        
The plaintiff, on the other hand, had no reason to leave the walkway
when he did. He was looking down as he was in the process of crossing the
concrete barrier and entering the parking lot. When he looked up the defendant’s
vehicle was right in front of him.

[42]        
In my opinion liability should be apportioned 66 ⅓% against the plaintiff
and 33 ⅓% against the defendant.

VI       DAMAGES

A        The Nature and Extent of the Injuries Sustained by the Plaintiff

[43]        
The plaintiff sustained a soft-tissue injury to the right knee and a
fracture of the 5th metatarsal of the left foot. The consensus of the medical
evidence is the Accident did not cause an acceleration of the osteoarthritis in
the right knee which predated the Accident. In dispute, however, is whether it
caused the right knee which was asymptomatic before the Accident to become
symptomatic.

[44]        
When Mr. Russell was admitted to East Kootenay Regional Hospital
following the Accident his immediate complaints related to his right knee. The
following day when he went to see his family physician, Dr. Cutler, he had
a bruised and tender left foot. He was then re-admitted to hospital where the
diagnosis of the fracture was made. His foot was placed in a cast. Approximately
a month later it was placed in an air cast boot.

[45]        
The plaintiff’s injuries resulted in his being in a wheel chair for two
to three months. His knee problems did not improve. He was referred to an
orthopedic specialist, Dr. Chan, who was of the view there should be a
right knee arthroscopy.

[46]        
Within three to four months of the Accident the plaintiff no longer had
any complaints relating to the left foot. It was now back to its pre-Accident
state. By February 2009, however, Mr. Russell was experiencing pain in
both knees. In fact the left knee pain was said to be worse than the right. MRIs
of both knees were performed in May 2009. They were interpreted to show a torn
medial meniscus of the right knee with degenerative changes in both knees.
Arthroscopic surgery of the right knee was performed in December 2009. Dr. Chan’s
operative report noted there was not, in fact, a meniscus tear. A subsequent
MRI which was performed in June 2010 had similar findings as the first.

[47]        
It was the plaintiff’s evidence that he continued to have disabling
right knee pain up to the time of trial. This has greatly impeded his ability to
perform his usual activities. With the exception of some sporadic lawn cutting
for family and friends from whom he obtained only a nominal income, he has been
unable to work. He can no longer participate in the activities he performed
regularly prior to the Accident. Although he has increased his ability to walk
and can now do so for up to two miles a day, he has to take rests. He has
become deconditioned and his weight has increased significantly. His life is
not at all what it was prior to the Accident.

[48]        
At the request of his counsel the plaintiff was examined by the
orthopedic specialist, Dr. Richardson, on January 27, 2012. At that time Mr. Russell
stated the following:

·      
right knee: pre-Accident he had no pain. Immediately post Accident
it was 8 on a pain scale of 0 to 10. Since the surgery it will vary from 3 out
of 10 to 8 out of 10 depending on his activity level.

·      
left knee: prior to the Accident the pain was 3 on the pain
scale. In 2008 it was also at 3 out of 10 and that remained the situation at the
date of the assessment.

·      
left foot and ankle: pre-Accident this pain was 7 out of 10.
Following the Accident it increased to 8 out of 10 and then went back to 7 out
of 10.

·      
back pain: Dr. Richardson noted the plaintiff had some low
back pain prior to the Accident as documented in the chiropractor’s records.
Following the Accident he had back pain which varied from a 0 out of 10 to 8
out of 10. He had not had any low back pain for several months prior to the
assessment.

[49]        
What the plaintiff reported to Dr. Richardson is generally
consistent with his evidence at the trial with the exception of increased pain
to the left knee after the Accident. His description of pain and the manner in
which it continues to affect his day-to-day activities was corroborated, to a
large extent, by the lay evidence led on his behalf.

[50]        
Dr. Richardson’s evidence at the trial was to the effect that the
ongoing pain in the left leg originates in the ankle and is not causally
related to the Accident.

[51]        
Furthermore, the ongoing pain in the right knee results from the effect
of the Accident on a pre-existing degenerative condition which was quiescent or
asymptomatic. In his opinion the causal relationship to the Accident is shown
by the fact there were no complaints to the right knee beforehand.

[52]        
Dr. Richardson was of the opinion Mr. Russell could perform
housekeeping and other activities around the home. The only rehabilitation
which could be helpful would be a three-month aqua fit program.

[53]        
In December 2010 the plaintiff was assessed at the request of his
counsel by the physiatrist Dr. Craig. When he testified, Dr. Craig
indicated he recalled Mr. Russell since it was unusual to see a person out
of breath when getting on and off an examination table. It was his
understanding the plaintiff was overweight and deconditioned prior to the
Accident. He was unable to link the chondromalacia (irritation of the cartilage
under the kneecap) to the Accident.

[54]        
Dr. Craig agreed with Dr. Richardson and Dr. Leith, who
assessed the plaintiff on behalf of the defendant, that normally a soft-tissue
injury to the right knee would not lead to a long-term disability. He was of
the view, however, that the plaintiff’s pre-existing right knee and left ankle osteoarthritis,
together with obesity and deconditioning, made him susceptible to a poorer
outcome from the injuries sustained in the Accident. The cause of the injuries
was “multifactoral” but the pre-existing osteoarthritis played a role. It was
hard to say what ongoing symptoms were caused by the direct injury of the
Accident and what had occurred over time.

[55]        
It was also Dr. Craig’s opinion that Mr. Russell was at risk
of a total right knee replacement even if the Accident had not occurred.

[56]        
In July 2010, Mr. Russell was due to undergo a functional capacity
evaluation by the occupational therapist Tatiana Petrov. This had been arranged
by his counsel. After the assessment commenced, Ms. Petrov ascertained the plaintiff
was feeling unwell and had high blood pressure. She stopped the assessment and
it was rescheduled to September of that year. By that time she was aware of his
“cardiac issues”.

[57]        
In both September 2010 and March 2012 Ms. Petrov concluded the plaintiff
was exhibiting full effort. She was of the view he perceived himself to be
capable of being more functional than was the case.

[58]        
It was Ms. Petrov’s opinion that further vocational or rehabilitation
intervention would not assist the plaintiff in improving his overall work
capacity or level of employability. She was of the view that certain care items
such as nutritional and weight reduction counselling, a recumbent bicycle, and
short-term physiotherapy and kinesiology treatments would be beneficial. She
recommended braces for the right knee and left ankle together with some
assistance for yard maintenance and snow removal.

[59]        
The orthopaedic specialist Dr. Leith assessed the plaintiff on
behalf of the defendant in October 2011. He concluded Mr. Russell’s
arthritis in the right knee had not been rendered symptomatic by the Accident.
He based this conclusion on the fact the arthritis was located in the medial,
that is the inside portion of the knee. The direct injury had occurred to the
lateral or outside portion which was also the location of the plaintiff’s
ongoing right knee complaints.

[60]        
It was also Dr. Leith’s opinion that the Accident likely caused a
minor soft-tissue injury to the right knee together with a fracture to the left
foot. The pre-existing osteoarthritis was causing some of the ongoing
disability but the Accident had not altered its natural progression. He would
have expected the prognosis for recovery from an accident of this minor nature
to be excellent. The plaintiff’s overall health and general lack of physical
fitness were the main reason for his lack of ability to sustain any form of
exertion. He also had osteoarthritis involving the right knee more than the
left and osteoarthritis to the left ankle absent the Accident would still be
causing him symptoms and problems. The Accident had not contributed “all that
much” to these symptoms or to Mr. Russell’s overall ability to work.

[61]        
Dr. Leith opined that the right-knee injury caused by the Accident
could reasonably have resulted in an absence from work of two to six weeks with
up to 12 weeks for the left foot fracture.

B        Conclusions on the Evidence

[62]        
There was much lay evidence led which pertained to the plaintiff’s level
of functioning several years prior to the Accident. But there was very little
detail provided, even by Mr. Russell himself, as to what his day-to-day
activities consisted of in the year or so before August 2008.

[63]        
I make the following findings of fact based on my consideration of the
evidence both lay and expert as a whole:

(a)      the plaintiff’s
“original position” immediately prior to the Accident included the following:

·      
being significantly overweight and deconditioned;

·      
having a hypertension condition which had existed for many years;

·      
asymptomatic degenerative osteoarthritis to both knees, more
significant to the right than the left; and

·      
symptomatic left foot and ankle difficulties.

(b)      prior to
the Accident, the plaintiff’s weight and deconditioning, together with the left
foot and ankle difficulties caused him to live a rather sedentary lifestyle.
Although he was able to work from time to time and participate in certain
leisure activities, these were lessening as he grew older.

(c)      the
Accident did not cause the degenerative osteoarthritis in the right knee to
become symptomatic. It did, however, cause a soft-tissue injury which continued
to affect the plaintiff to some extent at the time of trial.

(d)      the plaintiff’s ongoing difficulties are
multifactoral. They include:

·      
his ongoing weight and conditioning problems. Although Mr. Russell’s
pre-Accident weight and lack of conditioning would likely have affected his
work and enjoyment of the amenities of life even if the Accident had not
occurred, the injuries which he did sustain exacerbated that pre-existing
condition;

·      
the plaintiff’s pre-existing but quiescent cardiac condition
would have materialized the way it did even if the Accident had not occurred.
This condition would have affected his long term day-to-day functioning
including his ability to earn an income;

·      
notwithstanding this, the injuries sustained in the Accident,
particularly the right knee, continue to affect his ongoing reduced
functioning. This will continue indefinitely, to some degree, although some
weight loss and an exercise rehabilitation program will likely assist him;

·      
an exercise and weight loss program would have been of benefit to
the plaintiff even if the Accident had not occurred.

C        Discussion and Analysis

[64]        
In Dhaliwal v. Tomelden, 2010 BCSC 612, Russell J. stated:

[148] The role that damages plays is to place the plaintiff,
as much as possible, in his original position. It is not the obligation of the
defendant to put the plaintiff in a better condition than he was in. As noted
in Athey v. Leonati, [1996] 3 S.C.R. 458 at 473-474, 140 D.L.R. (4th)
235, per Mr. Justice Major:

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
for the pre-existing damage. … 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. … 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.

[149] Also, as noted by the British Columbia Court of Appeal
in T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670 at para. 28,
22 B.C.L.R. (4th) 1:

 [28]. …. a pre-existing condition, whether it is
quiescent or active, is part of the plaintiff’s original position.

The Court goes on, at para. 48, to say:

[48]. …. Whether manifest or not, a weakness inherent in a
plaintiff that might realistically cause or contribute to the loss claimed
regardless of the tort is relevant to the assessment of damages. It is a
contingency that should be accounted for in the award. Moreover, such a
contingency does not have to be proven to a certainty. Rather, it should be
given weight according to its relative likelihood.

[65]        
It is within the context of these legal principles and the findings of
fact I have made that the plaintiff’s damages should be assessed:

Non pecuniary Damages

[66]        
The plaintiff submits the award for general damages for pain and
suffering should be in the range of $60,000 to $80,000.00. The defendant’s
position is that an appropriate award would be $40,000 to $45,000 less a
significant reduction to take into account the plaintiff’s original position,
the measurable risk it would have detrimentally affected his life in the future
and the fact the cardiac condition did in fact materialize post-Accident. Under
the circumstances $15,000 would represent fair compensation under this heading.

[67]        
Both parties referred to various authorities in support of their
respective positions.

[68]        
I have found that the plaintiff lived a somewhat sedentary life prior to
the Accident. Yet his evidence, that of his mother, his niece Tanya Abbey and
to a limited extent the other lay witnesses, has led me to the conclusion the Accident
did cause the plaintiff some significant difficulties in the first year or so
after it had occurred.

[69]        
The defendant submits, based in part on Dr. Leith’s opinion
referred to above, that the injuries caused by the Accident were of a limited
duration. I disagree. I have concluded they still do affect his day-to-day
functioning and will continue to do so into the future. Yet the ongoing effects
are not as significant an element in Mr. Russell’s ongoing difficulties as
he alleges. In relation to the “multifactoral” causes which continued to the
time of trial, those which are related to the Accident, in my view, are
outweighed by those which are not.

[70]        
In Jackson v. Jeffries, 2012 BCSC 814, Greyell J. summarized the
law with respect to non-pecuniary damages :

[77]  In Trites, Madam Justice Ker outlined the
purpose and principles of non-pecuniary damages at paras. 188-189.

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 and reasonable to
both parties …

For the purposes of assessing non-pecuniary
damages, 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 …

[Citations omitted.]

[78]  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:

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).

[79] The assessment of
non-pecuniary damages is necessarily "influenced by the individual
plaintiff’s personal experiences in dealing with his or her injuries and their
consequences, and the plaintiff’s ability to articulate that experience": Dilello
v. Montgomery, 2005 BCCA 56 at para. 25.

[71]        
There is a useful summary of the potential range of damages for injuries
similar to those sustained by the plaintiff in Gray v. Ellis, 2006 BCSC
1808. Taking into account inflation, the range would now be approximately
$45,000 to $75,000.

[72]        
In my view, the plaintiff’s situation, before contingencies are taken
into account is generally comparable to the midpoint of this range. They are
less serious than those described in Ibbitson v. Cooper, 2010 BCSC 1916,
being $70,000; and Zimmerman v. Beattie, 2005 BCSC 502; they are
generally more similar to those in Lipinski v. Mein, 2004 BCSC 1389 (the
latter two awards requiring an adjustment for inflation).

[73]        
From the mid range amount of approximately $60,000 I must take into
account the plaintiff’s original position and the measurable risk the pre-Accident
condition would have affected the plaintiff’s life had the Accident not
occurred. Accordingly, I award non pecuniary damages in the amount of $45,000.

Past Loss of Earning Capacity

[74]        
Claims for damages for past and future loss of earning capacity are
based on the recognition that a plaintiff’s capacity to earn money was an asset
which has been taken away: Rowe v. Bobell Express Ltd., 2005 BCCA
141 at paras. 23 – 24.

[75]        
As was stated in Rowe at paras. 30 – 31:

… a claim for what is often
described as "past loss of income" is actually a claim for loss of
earning capacity; that is, a claim for the loss of the value of the work that
the injured plaintiff would have performed but was unable to perform because of
the injury.

Evidence of this value may take
many forms. As was said by Kenneth D. Cooper-Stephenson in Personal Injury
Damages in Canada, 2nd ed. (Scarborough, Ont.: Carswell, 1996) at 205-06,

… The essence of the task under this head of damages is to
award compensation for any pecuniary loss which will result from an inability
to work. "Loss of the value of work" is the substance of the claim —
loss of the value of any work the plaintiff would have done but for the
accident but now will be unable to do. The loss framed in this way may be
measured in different ways. Sometimes it will be measured by reference to
the actual earnings the plaintiff would have received; sometimes by a replacement
cost evaluation of tasks which the plaintiff will now be unable to perform;
sometimes by an assessment of reduced company profits; and sometimes by
the amount of secondary income lost, such as shared family income.

[Underlining added in Rowe.]

[76]        
The plaintiff’s position is that his 2008 income tax return reported
income for the year of $11,500 or approximately $1000 per month. He recognized
prior returns had been inaccurate but submitted that when the evidence
regarding what he had in fact earned in the past for mowing lawns, shovelling
snow, performing mechanical work for friends and family, etc. was taken into
account this was a “bottom end of the range” amount. Forty-six months had
elapsed since the Accident. Accordingly damages under this heading should be
$46,000.

[77]        
The defendant’s position is that the acute phase of the injuries caused
by the Accident was over within three to four months. Even if the Court were to
accept a pre-Accident monthly income of $1000, then the award should be
restricted to this timeframe. In any event it had been admitted by the plaintiff
that he received the following amounts from social assistance:

·      
2008:  $2361

·      
2009:  $7355

·      
2010:  $1220

It is submitted these amounts should be deducted from any
award for past loss of earnings or earning capacity McIntyre v. Forsythe,
2000 BCSC 461.

[78]        
There is a paucity of evidence upon which any precise conclusions can be
reached as to the plaintiff’s income in the timeframe of a year to two years
prior to the Accident. What the evidence on this issue really comes down to is
that Mr. Russell would get paid $10 per hour from a variety of friends and
family members for the various services he provided to them. In the summer of
2006 he did earn approximately $600 per month when he was employed by his
friend, George Nelligan, cutting lawns. Mr. Nelligan did not hire the plaintiff
the summer before the Accident, being 2007. Rather he hired the plaintiff’s
brother. Mr. Nelligan’s business is now dormant.

[79]        
Several of the lay witnesses testified they would have hired the plaintiff
after the Accident as they had before had he been capable of doing the work. An
example is his sister, Laurie Russell. She did hire her brother in the summer
of 2011 to mow her lawn. She testified it took him much longer to do the work
as a result of his physical condition. As for payment, she stated:  “I gave him
$20 or $30, whatever he wants”.

[80]        
It was the plaintiff’s evidence he has not done any heavy jobs since the
Accident. He has tried to mow the grass for his mother but it takes twice the
time it did before. His left leg is “not too bad”. It is the right knee which
makes it difficult to walk. He can walk up to two miles a day but only if he
“breaks it up”. He stated that walking on grass is easier than on a hard
surface such as concrete. He can now not squat like he could prior to the
Accident. This makes it impossible for him to get under vehicles to do repairs.

[81]        
When I consider this evidence within the context of the legal principles
to which I have referred, I conclude the plaintiff has established a loss of
earning capacity to the date of the trial which is causally related to the
injuries sustained in the Accident. But I am unable to accept that in the
timeframe of approximately a year or so leading up to the Accident the
plaintiff was earning $1,000 per month. That would be approximately $250 per
week. If one assumes an hourly wage of $10 and that the average length of the grass
mowing or snow shovelling jobs was two to three hours then that would amount to
two jobs per day, five days a week. The evidence led by the plaintiff, in my
view, could not form the basis for such a conclusion.

[82]        
I consider a monthly income of $600, that is 60 hours of work per month
or approximately 15 hours or $150 per week as being reasonable. That would
amount to gross loss of income to the time of trial of approximately $27,500.

[83]        
When I take into account the findings of fact I have made as to the plaintiff’s
original position and the multi-factoral causes of his difficulties at the time
of the trial, I conclude $21,000 is appropriate compensation under this head of
damages. After making a deduction for the approximate amount of $11,000 for the
social assistance benefits received, that results in an award of $10,000.

(c)      Loss of Future Earning Capacity

[84]        
The law with respect to this head of damages was also recently
summarized in Jackson above :

106 In Simmavong v. Haddock, 2012 BCSC 473, I
discussed the law regarding future loss of income:

[95] A claim for loss of future
earning capacity raises two key questions:

(1) has the plaintiff’s earning capacity been impaired by
his or her injuries; and, if so,

(2) what compensation should be awarded for the resulting
financial harm that will accrue over time?

[96] The assessment of loss must be
based on the evidence and is a matter of judgment. It is not an application of
a purely mathematical calculation. The appropriate means of assessment will
vary from case to case: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353
(S.C.); Pallos v. Insurance Corp. of British Columbia (1995), 100
B.C.L.R. (2d) 260 (C.A.); Pett v. Pett, 2009 BCCA 232; Rosvold v.
Dunlop, 2001 BCCA 1.

[97] The essential task of the
court is to compare the "likely future of the plaintiff if the accident
had not happened and the plaintiff’s likely future after the accident has
happened": Gregory v. Insurance Corporation of British Columbia,
2011 BCCA 144 at para. 32. I also note that "insofar as is possible, the
plaintiff should be put in the position he or she would have been in if not for
the injuries caused by the defendant’s negligence": Lines v. W & D
Logging Co. Ltd., 2009 BCCA 106 at para. 185.

[98] The principles that apply in
assessing loss of future earning capacity were summarized by Low J.A. in Reilly
v. Lynn, 2003 BCCA 49 at para. 101:

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

[99] The test is set out in Perren
v. Lalari, 2010 BCCA 140, at para. 32:

A plaintiff must always
prove, as was noted by Donald J.A. in Steward, [2007] B.C.J. No. 499, by
Bauman J. in Chang, [2008] B.C.J. No. 48, and by Tysoe J.A. in Romanchych,
[2010] B.C.J. No. 168, that there is a real and substantial possibility of a
future event leading to an income loss. If the plaintiff discharges that burden
of proof, then depending upon the facts of the case, the plaintiff may prove
the quantification of that loss of earning capacity, either on an earnings
approach, as in Steenblok, or a capital asset approach, as in Brown.
The former approach will be more useful when the loss is more easily
measurable, as it was in Steenblok. The latter approach will be more
useful when the loss is not as easily measurable, as in Pallos and Romanchych.
A plaintiff may indeed be able to prove that there is a substantial possibility
of a future loss of income despite having returned to his or her usual
employment. That was the case in both Pallos and Parypa, [1999]
B.C.J. No. 270. But, as Donald J.A. said in Steward, an inability to
perform an occupation that is not a realistic alternative occupation is not
proof of a future loss. [Emphasis in original.]

[100] There are two possible
approaches to assessment of loss of future earning capacity: the "earnings
approach" discussed in Steenblok v. Funk (1990), 46 B.C.L.R. (2d)
133 (C.A.); and the "capital asset approach" discussed in Brown.
As noted in the above quote from Perren, both approaches are correct and
will be more or less appropriate depending on whether the loss in question can
be quantified in a measureable way: at para. 32.

[101] The earnings approach and the
capital asset approach were described in Gilbert v. Bottle, 2011 BCSC
1389, by Madam Justice Dickson, at para. 233:

In Perren v. Lalari, 2010 BCCA 140, Garson J.A. identified
the two approaches to assessment of loss of future earning capacity commonly
adopted by courts in British Columbia. One is the "earnings approach"
described in Pallos; the other is the "capital asset approach"
described in Brown. The earnings approach involves a form of
math-oriented methodology such as i) postulating a minimum annual income loss
for the plaintiff’s remaining years of work, multiplying the annual projected
loss by the number of remaining years and calculating a present value or ii) awarding
the plaintiff’s entire annual income for a year or two. The capital asset
approach involves considering factors such as i) whether the plaintiff has been
rendered less capable overall of earning income from all types of employment;
ii) is less marketable or attractive as a potential employee; iii) has lost the
ability to take advantage of all job opportunities that might otherwise have
been open; and iv) is less valuable to herself as a person capable of earning
income in a competitive labour market.

[85]        
The plaintiff’s position is that the starting point of the analysis
should be an assumed loss of $1,000 per month until his 65th birthday. Based on
the multiplier contained in the economist Robert Carson’s report of February 14,
2012, being $11,020, this results in a loss of approximately $110,000. The plaintiff
submits his income could have been above $1000 per month. Offsetting that would
be the impact of his hypertension on his ability to work and the possibility of
there being less work for him to do in the future. The positive and negative
contingencies essentially offset each other. He seeks $110,000.

[86]        
The defendant points to the lack of evidence pertaining to this issue.
In particular, he says there were no invoices substantiating work done prior to
the Accident, no receipts pertaining to expenses incurred in relation to the
work, such as gas, equipment purchases or rentals, etc. He submits any amount
awarded would be speculative.

[87]        
The defendant’s alternative submission is that in considering the value
of the loss of a real and substantial possibility the following should be taken
into account:

·      
the plaintiff’s mother’s evidence which was to the effect that
when he moved back into the family residence in 2006, her son “was not doing
much for work”;

·      
the lay witness’ evidence regarding the sporadic work performed
before the Accident;

·      
the causal link between any future loss and the injuries
sustained in the Accident;

·      
the weight and conditioning issues identified by Ms. Petrov in
her reports and the apparent improvement in the plaintiff’s condition at the
time of her second assessment in March of 2012.

[88]        
In my view the plaintiff has proven a real and substantial possibility
of a future event leading to a financial loss which is causally related to the
injuries sustained in the Accident. His inability to earn an income in the
future and to which the Accident’s injuries have contributed is not mere
speculation. Although others may have recuperated from a soft-tissue injury to
the right knee in the timeframe identified by Dr. Leith, that is not the appropriate
barometer. I have found that of the multifactoral causes of the plaintiff’s
ongoing condition and disability, these include the injury to the right knee.
This conclusion is supported by the opinions of Dr. Richardson, Dr. Craig and Ms.
Petrov. Although the plaintiff’s weight did apparently return to its pre-Accident
level a few months after the Accident, it then increased significantly. More
recently it has been reduced. This is consistent with the plaintiff being
inactive, then attempting to exert himself more as he perceived his knee
condition to be improving.

[89]        
The right knee, however, is not what it was prior to the Accident and the
Accident injuries which continued at the time of trial are one of the causes of
the situation in which Mr. Russell now finds himself.

[90]        
I am of the view the loss of a capital asset approach as outlined in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), is the approach to be used
in valuing this future loss. The plaintiff has been rendered less capable of
earning an income overall as a result of the Accident. He is also less
marketable and has lost many if not all of the opportunities which were
previously available to him. Finally, he is less valuable to himself as a person
capable of earning an income in a competitive labour market.

[91]        
In arriving at an amount which I consider to be fair to both parties I
have considered the same factors I outlined above with respect to the claim for
loss of past earning capacity. In addition, I am of the view that if the plaintiff
does increase his level of conditioning he will likely be able to accept some
of the mowing and other work opportunities which are still available to him.

[92]        
 Dr. Richardson and Ms. Petrov were of the view Mr. Russell was capable
of sedentary work. Yet there was no evidence before me that such work was
available and/or the plaintiff was a suitable candidate for retraining. In
fact, with the plaintiff’s educational background and work history, Ms. Petrov
was of the view the plaintiff could not be retrained. I accept that evidence.

[93]        
Notwithstanding the above, I do not consider the $110,000 amount sought
by the plaintiff based on Mr. Carson’s multiplier as being reasonable in this
case. First of all, it is an actuarial not economic multiplier. It does not
take into account labour market contingencies. Secondly, and more importantly,
is that the estimate of $10,000 income per year, for the reasons I outlined in
paragraphs 81 and 82 above, does not accord with the evidence led on this issue,
in particular, the amounts earned in the year or two prior to the Accident.

[94]        
 I am also unable to accept the range submitted on behalf of the defendant.
Although there are other causes to the plaintiff’s ongoing inability to earn an
income, the right-knee injury remains and will likely continue to be a factor
to some extent.

[95]        
 I conclude a reasonable amount for this head of damages, taking into
account the measurable risk of certain of the components of the plaintiff’s pre-Accident
condition materializing and the certainty of the cardiac condition having occurred
is $30,000.

Cost of Future Care

[96]        
Greyell J. also summarized the law in this area in Jackson:

124 The plaintiff is entitled to compensation for the
cost of future care based on what is reasonably necessary to restore her to her
pre-accident condition in so far as that is possible. When full restoration
cannot be achieved, the court must strive to assure full compensation through
the provision of adequate future care. The award is to be based on what is
reasonably necessary on the medical evidence to preserve and promote the
plaintiff’s mental and physical health: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (S.C.); Williams v. Low, 2000 BCSC 345; Spehar et
al. v. Beazley et al., 2002 BCSC 1104.

125 In his text The Law of Damages, loose-leaf
ed. (Toronto: Canada Law Book, updated November 2011, release 20), Professor
Waddams states, at 3-63:

. . . the tenor of Dickson J.’s
judgment in Andrews v. Grand & Toy, [1978] 2 S.C.R. 229, makes it
clear that the court will lean in favour of the plaintiff in judging the
reasonableness of his claim. The court made it plain that the restraint imposed
on damages for non-pecuniary losses was an added reason for insuring the
adequacy of pecuniary compensation.

126 The test for determining the appropriate award
under the heading of cost of future care is an objective one based on medical
evidence. For an award of future care: (1) there must be a medical
justification; and (2) the claims must be reasonable: Milina, at 84.
Furthermore, future care costs must be likely to be incurred by the plaintiff.
The award of damages is thus a matter of prediction as to what will happen in
future. If a plaintiff has not used a particular item or service in the past it
may be inappropriate to include its cost in a future care award: Izony v.
Weidlich, 2006 BCSC 1315 at para. 74.

127 Contingencies must also be considered when assessing
cost of future care. In Gilbert, the court discussed adjusting for
contingencies at para. 253:

The extent, if any, to which a
future care costs award should be adjusted for contingencies depends on the
specific care needs of the plaintiff. In some cases negative contingencies are
offset by positive contingencies and, therefore, a contingency adjustment is
not required: see Spehar (Guardian ad litem of). In other cases,
however, the award is reduced based on the prospect of improvement in the
plaintiff’s condition or increased based on the prospect that additional care
will be required: see Morrison (Committee of). Each case falls to be
determined on its particular facts.

128 An assessment of
damages for cost of future care is not a precise accounting exercise: Krangle
(Guardian ad litem of) v. Brisco, 2002 SCC 9 at para. 21.

[97]        
The plaintiff’s position is that damages should be awarded in accordance
with the recommendations of Ms. Petrov in her report of March 12, 2012. These
include one-time costs for such items as nutritional and weight reduction
counselling, physiotherapy, a recumbent bicycle and braces totalling $6829. Annual
future costs for weight reduction maintenance, physiotherapy, yard maintenance
and snow removal etc. were also recommended.

[98]        
The defendant submits there was little, if any, medical evidence with
respect to this head of damages. His position is that the plaintiff had not
proven medical justification for the items claimed. Furthermore, the plaintiff’s
evidence was that he had discontinued physiotherapy since it was not assisting
him. He had also not established the causal relationship between what was
claimed and the injuries sustained in the Accident.

[99]        
Several of the medical experts were of the opinion the plaintiff would
benefit from significant weight loss. The only medical evidence, however,
pertaining to the need for assistance outside the home was that of Dr. Craig
and Dr. Richardson. Dr. Craig opined the plaintiff would require some help with
heavy yard work but was capable of doing light to medium yard tasks, although
with some discomfort. He recommended a referral to an orthodist such that
braces for the left leg and right knee could be considered. There was no evidence
from such an expert led at the trial. As referred to above, Dr. Craig was also
of the view the plaintiff was at risk of a total right knee replacement even if
the Accident had not occurred, although the risk had been heightened by the
Accident.

[100]     For his
part, Dr. Richardson recommended an exercise and rehabilitation plan although
no details were provided.

[101]     When I
consider this evidence in light of my findings of fact and the legal principles
referred to above, I conclude the plaintiff has failed to satisfy the onus to
prove medical justification for his claim for future care costs causally
related to the Accident.

V        CONCLUSION

[102]     I award
the plaintiff the following:

 Non-pecuniary damages:             $45,000.00

 Past loss of earning capacity:       $10,000.00

 Loss of
Future earning Capacity:  $30,000.00

  TOTAL:                                      $85,000.00

[103]     In
accordance with my conclusions regarding liability for the Accident, the plaintiff
will recover 33 ⅓% of this amount. In addition there will be court order
interest pursuant the Court Order Interest Act, R.S.B.C. 1996, c.79, on
the award for past loss of earning capacity.

[104]     The
parties shall have their respective costs of this action at Scale B in
accordance with the apportionment of liability unless there are other factors
which may impact the question of costs. If such is the case either party has
liberty to apply to speak to the matter of costs.

“Abrioux
J.”