IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121022

Docket: M110276

Registry:
Vancouver

Between:

Gaspere Bossio

Plaintiff

And

Yee M. Li

Defendant

Before:
The Honourable Mr. Justice Butler

Reasons for Judgment

[1]            
On January 21, 2009, Gaspere Bossio was rear-ended while driving on Como
Lake Road in Coquitlam. He suffered soft tissue injuries in the accident which
had an immediate and significant impact on him. The defendant driver, Ms. Yee
Li, has admitted liability. The trial proceeded before me for an assessment of
damages. The parties do not have significant disputes between them regarding
the facts. The defendant does not take issue with the plaintiff’s credibility.
There are limited disputes about the medical findings. Those disputes relate to
whether Mr. Bossio has substantially recovered from his injuries and whether he
is suffering from a chronic pain disorder. Accordingly, the real issues in this
case are the extent to which Mr. Bossio has, to date, recovered from his
injuries, and the extent to which he is likely to continue to experience
episodic pain and have functional difficulties as a result of those injuries.

[2]            
I commence my reasons by setting out the positions of the parties. I
then review Mr. Bossio’s evidence regarding his injuries, the evidence of the
lay witnesses, and the medical evidence. On the basis of that evidence, I
arrive at findings of fact regarding the nature and duration of Mr. Bossio’s
injuries. I conclude my reasons by giving my decision on the following issues:

1.       What
amount should be awarded to Mr. Bossio for non-pecuniary damages?

2.       What
amount should be awarded for past income loss?

3.       What
amount should be awarded for future income loss or for loss of capacity to earn
income?

4.       What
amount should be awarded for special damages?

5.       What
amount should be awarded for the cost of future care?

Position of the Parties

Mr. Bossio

[3]            
As a result of the accident, Mr. Bossio suffered soft tissue injuries to
his cervical and lumbar spines, his shoulders and an injury to his right knee.
He says that the symptoms from the injuries have gradually improved but have
persisted now for three and a half years. He has suffered frequent flare-ups of
neck and bilateral shoulder and arm pain. He says that his condition has been
seriously affected by his psychological condition which was caused by the
accident: he has suffered minor depression and has developed a chronic pain
disorder. As it is now three and a half years since the accident, Mr. Bossio
argues that he will likely continue to experience flare-ups and suffer ongoing
episodes of pain. He says it is unlikely that he can expect complete recovery
this long after the accident.

[4]            
At the time of the accident, Mr. Bossio was working as a community
liaison officer for an agency of the federal government involved in the
Residential School compensation program. He missed almost a full year of work.
In addition to his past loss of income, he says he will suffer a loss of
capacity to earn income in the future. He says this will occur in part because
he missed out on a promotion that he would have received but for the accident,
and in part because he is limited in the work he can do as a result of his
ongoing symptoms. He also says he requires future care in the form of massage therapy,
physiotherapy, and counselling sessions.

The Defendant

[5]            
The defendant admits that Mr. Bossio suffered soft tissue injuries in
the accident and that he continued to suffer symptoms related to his injuries
for some time following the accident. However, the defendant asserts that Mr.
Bossio has gradually recovered so that he is now almost symptom free. The
defendant does not take issue with most of the medical diagnoses but says that
Mr. Bossio did not and does not suffer from a pain disorder. Rather, she says
he suffered an adjustment disorder for a period of time after the accident but
that disorder is not chronic. In addition, the defendant argues there is no
evidence to support a future income loss or loss of capacity claim. The
defendant also disagrees with Mr. Bossio as to the appropriate amount to cover the
cost of future care claims.

Evidence of Mr. Bossio and the Lay Witnesses

[6]            
Mr. Bossio is currently 37 years old. He was raised in Kamloops but now
lives in Vancouver with his aging parents. He has a Business Administration
degree with a specialty in Human Resources. He worked for the Royal Bank of
Canada for seven years and was laid off when the bank shut down the mortgage
centre where Mr. Bossio worked. That turned out to be a blessing in disguise as
he found a job in 2006 with Indian Residential Schools Resolution Canada, an
agency of the federal government. He was trained as an administrative
assistant, but was soon given the position as a Group Claim Consultant for the
Indian Residential Schools Adjudication Secretariat. Since 2007, he has worked
with native communities on issues relating to residential school claims. It was
evident from his testimony that he cares passionately for the work he does to
support individuals in native communities as they work their way through the
federal bureaucracy. He has facilitated hundreds of applications for claims by
residential school victims throughout the western provinces and the north. In
addition, he has provided assistance to communities to enable them to obtain
resources to assist with their healing process.

[7]            
It is fair to say that Mr. Bossio’s work was the focus of his evidence.
He is extremely proud of what he has accomplished. However, he also harbours
feelings of guilt because he feels he could have accomplished much more if he
had not been injured. Coincidentally, the deadline for the filing of
residential school claims – September 19, 2012 – passed during the
trial. Mr. Bossio felt he could have assisted many more victims of residential
school abuse had he been able to fully apply his time and energy to his work.

[8]            
Prior to the accident, Mr. Bossio took part in a variety of sporting and
social activities. Many of these were done with his cousin, Alfonso Palermo.
Until a couple of years before the accident, he played soccer competitively in
Men’s Division 1 with his cousin. They also went hunting, hiking and
backpacking with a group of friends. Mr. Bossio was fit and healthy without any
physical limitations on the activities he could perform. Mr. Palermo described
his pre-accident personality as positive and upbeat.

[9]            
At the time of the accident, Mr. Bossio was going to a cousin’s house
for dinner. He continued to her home but felt nauseous and dizzy from
headaches. He stayed awake all night and could not go to work the next day. His
neck was extremely painful and within a short period of time he began to
experience pain radiating down his arms. He attended his doctor and was
prescribed Naproxen and physiotherapy.

[10]        
Mr. Bossio began physiotherapy almost immediately and went for
treatments eight to ten times per month until September 2009. He continued to
see his doctor regularly for assessment and treatment of his injuries. The
level of pain did not diminish and he was prescribed narcotic pain medication
for a period of time. The healing progressed very slowly as a result of which
he was unable to work. He suffered a series of flare-ups during which he
experienced severe pain in his neck, shoulders and arms. He also noted a couple
of weeks after the accident that he had suffered a strain to his right knee.
This took some time to recover but was not the focus of his complaints.

[11]        
Shortly after the accident, on Valentine’s Day 2009, Mr. Bossio met
Stephanie Candiago. They have dated continuously since that first meeting. She
described the difficulties Mr. Bossio has experienced recovering from the
accident. Their relationship had a slow start as they could not take part in
most activities together because of his persistent pain. He was unable to go to
movies or do outdoor activities and so they spent a great deal of time talking.
Those sessions were always punctuated by Mr. Bossio squirming, moving about and
stretching as he attempted to deal with his discomfort.

[12]        
Ms. Candiago described in some detail the changes in Mr. Bossio’s
ability to function. Throughout 2009 he was able to do very little; his
progress was very gradual. By 2010, they were able to attend movies and take
part in more activities. In February 2010, she bought him a Wii which he used
somewhat sparingly. Ms. Candiago described how Mr. Bossio suffered additional
pain and discomfort after taking part in physical activities. In 2011, they
went on their first holiday together to Hawaii. They began to go on walks
together at Burnaby Lake. At the present time they are able to do more. Their
activities include bowling, short games of tennis and frequent walks. He has
played social soccer games with members of his family. Ms. Candiago says that
Mr. Bossio is able to perform most household tasks. He can now maintain the
home and do the necessary daily chores for himself and his elderly parents.

[13]        
Both Ms. Candiago and Mr. Palermo described Mr. Bossio’s emotional
state. They say he is generally sad and subdued which they attribute either to
his level of pain or his inability to do the things he would like to do both at
work and leisure. Mr. Palermo says that there is a marked difference in his
affect; before the accident he was more cheerful and outgoing. In spite of his
subdued emotional state, Ms. Candiago says that when she met Mr. Bossio they had
an instant connection. Her relationship with him has remained strong and
continues to thrive. They are planning to get married, although no date has
been set.

[14]        
Mr. Bossio described his return to work. In late 2009, he obtained a
laptop and started to do some work from home. In 2010, he began a graduated
back to work program and by the spring he was back to work full time. This was
accomplished through significant accommodations to his work. He was permitted
to work from home two days per week. He was given less travel and allowed to
take breaks as needed. His shoulder and neck pain were aggravated by working,
in particular, by doing computer work. He started the sessions of massage
therapy shortly after his return to work.

[15]        
His work over the last two years has involved a fair amount of travel,
often to remote locations. He has managed to carry out the work, although he
has done less travel than he would have liked to do. The long airplane trips
and car travel over rough roads caused significant aggravation of his symptoms.
He often has to carry baggage which he finds difficult and painful.

[16]        
In spite of his difficulties at work, he was a valued employee both
before and after the accident. His supervisor, Michael Simpson, spoke highly of
the work he did. Most of the examples Mr. Simpson gave to describe exceptional
work done by Mr. Bossio referred to the time period after the accident. Indeed,
Mr. Simpson did not work directly with Mr. Bossio until after the accident. Mr.
Bossio’s performance review in 2011 was very good.

[17]        
Mr. Bossio described the gradual improvement of his symptoms. He said
that in 2010 after he returned to work he was getting headaches once or twice
per week. By the end of 2011, this had reduced to one to three per month. Most
did not last for more than an hour or two. At that time he still did not
experience pain free days but if he was not working at the computer the pain
would be quite minor.

[18]        
At the present time, he continues to experience some pain in his right
shoulder which radiates into his arm. He also experiences pain in his neck and
back. He is still accommodated at work. He works at home two days per week on
average. He needs to move and stretch frequently, particularly when he is doing
computer work. Each day he does a 15 to 20 minute exercise routine he was given
by his physiotherapist. He also walks between 30 and 60 minutes most days. He
lifts weights three times per week. While he has returned to some leisure
activities including soccer, tennis and fishing, he is not able to perform at
the same level or for the same length of time that he could before the
accident.

Medical Evidence

[19]        
There is no suggestion that Mr. Bossio failed to mitigate his damages.
He has followed the recommendations of his doctors and has faithfully attended
numerous physiotherapy, massage therapy and counselling sessions since the
accident. He personally paid the cost of the latter two therapies. At the
present time he continues to attend massage therapy once or twice a month and
psychological counselling approximately once a month.

[20]        
The physiotherapist and the psychologist were not called as witnesses.
Ms. Verletti, the massage therapist, gave evidence. I need not review her
evidence in any detail. She confirmed that Mr. Bossio attended on the dates
noted and that she provided treatment to him. She noted his complaints and
found areas of tightness and muscle spasm. The areas affected seem to have
varied over time. Her therapy provided some short term relief. Her evidence
provides some support for Mr. Bossio’s complaints of pain.

Dr. Moccia

[21]        
The only treating physician called at the trial was Dr. Moccia, Mr.
Bossio’s family physician for approximately nine years before the accident. He
saw Mr. Bossio two days after the accident and has followed his care since that
time. He is of the opinion that Mr. Bossio suffered sprains to the cervical and
dorsal lumbar spines, shoulders and right knee. In his report of June 19, 2012,
he described in some detail Mr. Bossio’s course of recovery including the
therapy undertaken since the accident. In February 2010, Dr. Moccia noted that
Mr. Bossio was depressed and recommended that he attend counselling. He has
done so ever since.

[22]        
At the end of his report, Dr. Moccia succinctly summarizes the course of
recovery and his current prognosis. He notes that Mr. Bossio was initially
totally disabled and that his recovery was prolonged by depression and anxiety.
He quotes from the imaging reports which show no abnormalities except for a
slight straightening of the spine due to spasm shortly after the accident. He
also comments on the difficulty that Mr. Bossio has experienced because of
frequent flare-ups of neck, shoulder, and arm pain which have been exacerbated
by typing and more strenuous activities. He concludes as follows:

It is my opinion that Mr. Bossio
will continue to gradually improve and his symptoms continue to resolve over
the following 6-12 months.  It is unlikely that he will require any surgical
treatments but he will probably require further sessions of massage and
physiotherapy because he will probably continue having flare-ups of muscle
spasm along with neck and bilateral arms symptoms on a longer term basis.  It
is also my opinion that he will require intermittent counseling support over
the next 4 months to avoid a relapse of his depression and further support his
continued recovery.

Dr. Horlick

[23]        
Dr. Horlick is an orthopaedic surgeon who saw Mr. Bossio in February
2012 for the purpose of preparing a medical legal report at the request of
plaintiff’s counsel. The report provides a good history of the medical
investigations and treatment received by Mr. Bossio since the accident. Dr.
Horlick identifies the three areas of ongoing complaint as his neck, right
shoulder and right knee. At p. 3 of his report he states, somewhat in contrast
to Mr. Bossio’s evidence, that the “complaints referable to his neck, shoulder
and knee have not limited his ability to work for the most part and have not
required him modifying significantly his vocational or avocational pursuits.”

[24]        
Dr. Horlick’s findings and prognosis are set out under the heading
“Assessment”:

I could find no evidence on his history, physical examination
or subsequent imaging studies, to document significant injury to his osseous or
neurologic structures.  Management of chronic myofascial pain disorder is
through appropriate range of motion and strengthening activities as well as
modalities such as massage therapy, physiotherapy and perhaps acupuncture to
facilitate reduction in pain and improvement in range of motion and
reconditioning….

Mr. Bossio’s symptoms, in
general, in his neck and upper extremity have improved over time and I would
expect further improvement with distance from the time of injury and
introduction of ongoing exercises and reconditioning.  The potential for
significant impairment and subsequent disability is minimal; in my opinion
significantly less than 51%.  The intermittent numbness that he gets in his
upper extremities are difficult to explain on an anatomic basis but in my
opinion do not represent any significant neurologic deficit or potential for
progressive impairment and disability.

[25]        
Dr. Horlick goes on to state that the right knee complaints are caused
by an iliotibial band friction syndrome. He opines that the potential for
significant impairment and subsequent disability associated with that condition
is minimal. He does not anticipate significant vocational or avocational
restriction arising from the knee.

Dr. Joy

[26]        
Dr. Joy opines that the proper diagnosis for Mr. Bossio on Axis I of the
DSM-IV-TR is Pain Disorder Associated with Both Psychological Factors and a
General Medical Condition. This diagnosis assumes both a psychological and
physical contribution to the pain. He found that Mr. Bossio presented with
mixed anxiety and depressive symptomatology, although his level of depression
is in the “minimal” range. Mr. Bossio’s depression was at its worst shortly
after the accident but Dr. Joy is of the opinion that he never had a
diagnosable Major Depression. Dr. Joy finds that Mr. Bossio’s anxiety levels,
based on his self-report, are on the low side for someone with chronic pain.
Taking all of those factors into account he is of the opinion that the
diagnosis of Pain Disorder Associated with Both Psychological Factors and a
General Medical Condition “offers the most explanatory power in terms of
post-accident and current presentation.”

[27]        
The DSM Axis V represents an impairment rating (Global Assessment of
Functioning or “GAF” score) regarding the overall level of psychological,
social and occupational functioning. Dr. Joy opines that Mr. Bossio’s current
rating is approximately 55 out of a score of 100 which indicates moderate
impairment in social and occupational functioning. He recommends that Mr.
Bossio continue with psychological counseling with Dr. Illsley and
participation in a comprehensive conditioning program. He also recommends a
comprehensive vocational assessment and counseling.

Dr. Gouws

[28]        
Dr. Gouws is a physician who has worked extensively in the field of
occupational health. He saw Mr. Bossio for an independent medical examination
and prepared a report for trial. He is of the opinion that Mr. Bossio continues
to have a functional impairment due to the injuries sustained in the accident.
He concludes as follows:

In view of the fact that he
continues to have widespread symptoms 3 years post-injury, his prognosis for a
full resolution of his symptoms is becoming increasingly guarded. It is more
likely that Mr. Bossio will be able to control and improve his symptoms, than
it is that his symptoms will be “cured”. In view of this it is likely that Mr.
Bossio will be left with some degree of functional impairment. Mr. Bossio has
not reached the point of maximal rehabilitation yet and may experience a
further improvement in his symptoms with appropriate rehabilitation.

[29]        
Dr. Gouws also concluded that Mr. Bossio did not require any further
medical evaluation. Rather, he requires physical rehabilitation and further
access to a clinical psychologist. Dr. Gouws was of the opinion that Mr. Bossio
suffered from thoracic outlet syndrome and that any further therapist should
exercise caution as a result of this diagnosis.

[30]        
Dr. Gouws relied in part on the Functional Capacity Evaluation prepared
by Louise Craig. She found that Mr. Bossio was able to fulfill the physical
demands of his job but concluded that his employability was compromised because
his employer provided accommodations which permitted him to work at home and
modify his workday when at the office. She found that he had limitations
associated with sustained sitting and with repetitive typing and mouse work at
the computer. He also had difficulty with lifting and carrying. She concluded
that Mr. Bossio appeared deconditioned and was of the opinion that he had not
reached his maximum rehabilitation.

Dr. Robertson

[31]        
Dr. Robertson is a psychiatrist who prepared a rebuttal report for the
defendant. He did not interview or assess Mr. Bossio. His report comments on
Dr. Joy’s diagnosis and provides an alternative diagnosis. He is of the opinion
that Dr. Joy is mistaken in his application of the DSM criteria to the symptoms
and history reported by Mr. Bossio to Dr. Joy. He accepts the information
regarding Mr. Bossio’s symptoms set out in Dr. Joy’s report and in the clinical
records relied upon by Dr. Joy. He sets out in detail the DSM criteria and
opines that a proper Axis I diagnosis for Mr. Bossio is that he suffered from
an Adjustment Disorder for a period of time after the accident but that he is
not suffering from such a disorder at present. The criteria for an Adjustment Disorder
require the development of emotional or behavioural symptoms (such as
depression or anxiety) in response to a stressor. Here, the stressor would be,
in part, the pain caused by the accident.

[32]        
Dr. Robertson rejects the diagnosis of Pain Disorder because he opines
that Mr. Bossio does not meet criterion C which requires that “Psychological
factors are judged to have an important role in the onset, severity,
exacerbation, or maintenance of the pain.” He says that Dr. Joy’s report and
supporting appendices make almost no mention of psychological factors having an
important role in the onset, severity, exacerbation or maintenance of Mr.
Bossio’s pain. He acknowledges Dr. Moccia’s comment that Mr. Bossio’s recovery
was “prolonged because it was complicated by the onset of depression and
anxiety as a result of Mr. Bossio being unable to perform his usual duties.”
However, he says that this does not suggest that the psychological factors had
an “important” role in the maintenance of the pain as required to meet the
criteria. He says that Dr. Joy’s lengthy report does not describe how anxiety
and depression have impacted on the pain experienced by Mr. Bossio.

[33]        
Dr. Robertson also contests Dr. Joy’s opinion regarding Mr. Bossio’s GAF
score. Dr. Robertson sets out the criteria for the ranges from 51-60, 61-70 and
71-80. He would place Mr. Bossio at a score of approximately 70. He says that
Mr. Bossio definitely does not fall in the lower range as suggested by Dr. Joy
as the criteria requires “Moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate difficulty in
social, occupational, or school functioning (e.g., few friends, conflicts with
peers or co-workers).”

Dr. Piper

[34]        
Dr. Piper is an orthopaedic surgeon who saw Mr. Bossio for an
independent medical assessment at the request of the defendant. He agreed
“essentially with the assessment of Dr. Horlick.” He offered the opinion that
at the time of his assessment, June 19, 2012, Mr. Bossio continued to suffer
from a mild to moderate degree of symptomatology from the soft tissue injuries
suffered in the accident. He believes that Mr. Bossio will continue to recover
with the passage of time and that he will not require surgery either for his
back or knee. He was adamantly of the view that Mr. Bossio does not suffer from
thoracic outlet syndrome.

Conclusions regarding Nature and Duration of Mr. Bossio’s Injuries

[35]        
Mr. Bossio is sensitive, empathetic and thoughtful. He has had a
difficult time recovering from his injuries. However, with the assistance of
counselling and massage therapy, he persisted with his rehabilitation and has
managed to return to full time work and full time management of the home he
shares with his parents. He retains some feelings of guilt regarding his failure
to meet his expectations at work, but it is evident that he has accomplished a
great deal and that the feelings of guilt are not warranted. In the same way
that he undervalues his achievements at work, he seems to undervalue his
success at his own rehabilitation. I conclude this is simply his nature. As I
will set out below, I conclude that he has made a substantial recovery and that
his medical condition will likely continue to improve. I also conclude that he
will not suffer any permanent injury or disability as a result of the accident.

[36]        
While I found all of the medical evidence instructive, the report of Dr.
Moccia is of the most assistance to the court. He was the only treating
physician and has followed Mr. Bossio’s care for many years. Accordingly, he is
the only doctor who had an opportunity to fully assess the progress of Mr.
Bossio and the severity of the symptoms at various stages through the healing
process. He is the only doctor who could compare his pre and post-accident
conditions. Dr. Moccia’s report and oral evidence were impartial. He was frank
and direct, both orally and in writing. I have no hesitation in accepting his
opinions.

[37]        
I find that Mr. Bossio suffered a moderate to severe soft tissue injury
as a result of the collision. I accept the opinion of Dr. Moccia, which was
confirmed by the opinions of the orthopaedic specialists, that Mr. Bossio
suffered no significant injury or damage to his bone or nerve structures. In
addition, I accept the views of the orthopaedic specialists that Mr. Bossio
does not suffer from thoracic outlet syndrome. I also accept the view that Mr.
Bossio’s recovery has been prolonged and is not yet complete.  Specifically, I
accept Dr. Moccia’s opinion that Mr. Bossio “will continue to gradually improve
and his symptoms continue to resolve over the following 6-12 months.” I also
accept his view that Mr. Bossio will “probably continue having flare-ups of
muscle spasm along with neck and bilateral arms symptoms on a longer term
basis.”

[38]        
I also accept the view from the orthopaedic specialists that Mr. Bossio
will likely make a full recovery with the passage of time. Dr. Moccia’s opinion
also implies that full recovery is likely. I accept this opinion because of
findings I can make based on all of the evidence. There is no question that Mr.
Bossio has continued to improve with the passage of time. Virtually all of the
doctors were of the view that his fitness and general medical condition will
continue to improve. Dr. Horlick expects “further improvement with distance from
the time of injury and introduction of ongoing exercises and reconditioning.”

[39]        
I did not find Dr. Gouws’ report to be of much assistance. He was
willing to venture into areas beyond his personal expertise as was evident by
his incorrect diagnosis of thoracic outlet syndrome. However, even Dr. Gouws
was of the view that Mr. Bossio has not reached the point of maximum
rehabilitation and may experience further improvement. Others, including Ms.
Craig, remarked that Mr. Bossio was deconditioned and agreed his condition
would continue to improve. I infer from all of these comments that Mr. Bossio
requires further conditioning and with that conditioning he will continue to
recover.

[40]        
I also consider it likely that he will fully recover psychologically.
Based on the evidence of Dr. Joy and Dr. Robertson, it is clear that if the
physical condition recovers so will his psychological condition. There is no
question that Mr. Bossio’s psychological condition has ameliorated through
counselling and with time. If the underlying physical condition improves, so
will his psychological condition and his level of functioning. Indeed, that is
what has happened.

[41]        
With regard to Mr. Bossio’s psychological condition, I prefer the
opinion of Dr. Robertson to that of Dr. Joy. I must conclude that Dr. Joy
approached his assessment with a bias towards a finding of a continuing
disability. I arrive at this conclusion because I agree with Dr. Robertson’s
criticisms of Dr. Joy’s application of the DSM-IV-TR to the history and
findings as described in his report and appendices. When the actual DSM
criteria (which were omitted from Dr. Joy’s report) are compared to the history
and findings made by Dr. Joy, it is difficult to see how he could have arrived
at his opinions both as to Mr. Bossio’s Axis I condition and Axis V impairment
rating.

[42]        
I agree with Dr. Robertson that if the history taken by Dr. Joy is
accepted, the proper diagnosis for Mr. Bossio is that he suffered from an
Adjustment Disorder for some time after the accident, but that he did not and
does not suffer from a chronic pain disorder. There is little in the history of
Mr. Bossio or in the records which would allow one to conclude that
psychological factors have played an “important role” in the onset, severity,
exacerbation, or maintenance of the pain. Indeed, there is almost nothing in
the record which ties Mr. Bossio’s psychological condition to the pain he is
experiencing. Rather, the evidence indicates strongly that Mr. Bossio’s
psychological condition – anxiety or depression – is a response to
the pain. This was evident throughout his evidence. He has experienced guilt as
a result of his inability to perform the work he wanted to do. The pain has
caused him to experience the anxiety or depression. The psychological
conditions have not played a large role in the onset, severity or maintenance
of the pain.

[43]        
In summary, I conclude that Mr. Bossio has experienced a lengthy period
of full and partial disability as a result of the accident and that he is not
fully recovered. I accept the opinion of Dr. Moccia and conclude that Mr.
Bossio will continue to recover. In the next year or two his injuries will
substantially resolve, particularly if he accomplishes the reconditioning that
is required. He may, however, continue to have minor flare-ups of neck and
shoulder pain from time to time.

Issue 1.   What amount should
be awarded to Mr. Bossio for non-pecuniary damages?

Position of the Parties

[44]        
Mr. Bossio submits that the range for non-pecuniary damages is $75,000
to $100,000. Given the length of the continuing disability and the possibility
that it will continue for some time, he argues that he should be awarded an
amount at the high end of that range.

[45]        
The defendant submits that Mr. Bossio has substantially recovered and
accordingly the appropriate range for non-pecuniary damages is $35,000 to
$40,000.

Award

[46]        
I have reviewed the cases relied upon by both parties. Mr. Bossio
referred to Bansi v. Pye, 2012 BCSC 556; and MacKenzie v. Rogalasky,
2011 BCSC 54. The defendant referred to Kirk v. Frocklage, 2003 BCSC 922;
Johnston v. Day, 2002 BCSC 480; and Chalmers v. Barck, 2003 BCSC
322. The cases are helpful in the sense that they provide interesting
illustrations of the application of legal principles to the assessment of loss
in the circumstances found in those decisions. However, it is important to
remember that the amount of an award does not depend solely on the seriousness
of the injury but also on the award’s ability to ameliorate the condition of
the plaintiff and to provide him or her with solace: Lindal v. Lindal, [1981]
2 S.C.R. 629 at 637. The award must be tailored to the particular circumstances
of the plaintiff.

[47]        
All of the cases referred to by counsel involve similar injuries to
those suffered by Mr. Bossio. However, there are significant differences in the
length and severity of the symptoms suffered by the plaintiffs and the extent
to which the psychological problems experienced were caused by the accident.
More significantly, there are differences between the impact of the injuries on
the plaintiffs’ loss of enjoyment of life and need for solace.

[48]        
In Bansi, the court found that the plaintiff, who received an
award of $75,000, was likely to suffer lower back symptoms for the rest of his
life. Further, the alteration of the plaintiff’s mood was more severe than that
experienced by Mr. Bossio. Mr. Bansi no longer socialized and rarely took part
in family activities. In MacKenzie, the plaintiff, who was awarded
$100,000, suffered from chronic pain for more than seven years as of the date
of trial. He was no longer able to work at his chosen occupation as a chef and
his lifestyle changed dramatically.

[49]        
All of the cases cited by the defendant were dated and so the amounts
awarded would have to be adjusted for inflation. However, it is my assessment
that the impact of the injuries on the enjoyment of life for the plaintiffs in
all three cases was less than suffered here by Mr. Bossio. In Johnston, the
plaintiff was awarded $32,500. She had substantially recovered in eight months,
although had ongoing symptoms for two years that involved a psychological
component. In Chalmers, the plaintiff was awarded $40,000 and suffered
from the soft tissue injuries for six years. The court found that she suffered
a degree of emotional upset related to the accident although her anxiety and
depression did not play a role in her ongoing disability.

[50]        
Mr. Bossio was impacted very seriously by the injuries suffered in the
accident. He was totally disabled for almost a year. His frustration at being
unable to take part in his usual activities and his work was extreme. He has
required ongoing counselling to deal with these issues. He has taken a long
time to recover from the soft tissue injuries. After the period of total
disability, he continued to suffer ongoing flare-ups of the pain symptoms for
another two and two-thirds years. His work life and leisure activities
continued to be impacted. I have concluded that he will likely continue to
experience symptoms including flare-ups for the next couple of years.

[51]        
However, Mr. Bossio’s condition has improved significantly with a
resulting improvement in his ability to enjoy his life. He has now managed to
return to most of his pre-accident activities. I conclude from his evidence and
that of Mr. Simpson that he has performed extremely well at work. He is also
functioning well at home; he is able to maintain the home for himself and his aging
parents. He has also been able to start and develop a serious and fulfilling
personal relationship with Ms. Candiago. He has returned to many of the sports
he did before the accident even though he does so with reduced intensity and
duration. In short, he has made a substantial recovery and has functioned at a
high level, especially over the past 12 to 18 months.

[52]        
Mr. Bossio also suffered from an Adjustment Disorder which persisted for
some time after the accident. However, any remaining anxiety and depressed mood
will disappear as his physical condition resolves. The fact that he was able to
start and successfully develop his relationship with Ms. Candiago is a
significant factor in my conclusions regarding his emotional state.

[53]        
When I take all of the circumstances into account, I conclude that an
award of $65,000 for non-pecuniary damages is appropriate for Mr. Bossio.

Issue 2.   What amount should be awarded for past income loss?

[54]        
Mr. Bossio missed a considerable amount of work as a result of the
injuries suffered in the accident. I was not provided with full details of the
time missed as Mr. Bossio continued to receive his full pay throughout the
entire period. As of the start of trial his employer and disability insurer had
not responded to Mr. Bossio’s inquiries as to the amount of the past loss and
extent to which he will have to reimburse the insurer. However, there is no
dispute between the parties that the defendant is responsible to compensate Mr.
Bossio for the income loss he suffered, if any, for the time he missed from
work between the date of the accident and his return to full time work in the
spring of 2010.

[55]        
At the start of the trial, I ordered the employer to provide details to
the plaintiff as to the amount of the loss and the extent to which Mr. Bossio
is required to reimburse the employer or insurer pursuant to the terms of his
employment. I was advised towards the end of the trial that the amount of wage
replacement provided by the employer to Mr. Bossio was $60,000. The details of
the employment agreement had yet to be provided at the end of the trial. I
expect that the parties will be able to agree on the appropriate amount of the
past income loss (with respect to the wage replacement) once the information is
provided. For the purpose of these reasons, I order that the defendant must pay
the plaintiff for past income loss suffered as a result of the accident. If the
parties are not able to arrive at an agreement as to the amount of the order,
they are at liberty to provide further evidence and submissions on this issue.

[56]        
Mr. Bossio seeks damages for past income loss on two bases in addition
to the amount determined for wage replacement. He says that he would have
earned overtime during the period he was off work. He also says he would have
received additional overtime in the period from 2010 through 2012 if he had
been able to work to his pre-accident capacity. He also claims past income loss
based on a lost opportunity. Mr. Simpson testified that he considered Mr.
Bossio for a manager’s position in 2010, which would have seen him promoted to
the SI-5 level with an income of about $79,000. Mr. Bossio argues he has
established that there was a substantial likelihood that he would have received
the promotion and claims $20,000 per year for three years.

[57]        
The defendant argues that the plaintiff has not met the burden of proof
for either of these claims. With regard to overtime, she says that Mr. Bossio
presented no reliable evidence of the amount of overtime he earned in the past
or could have earned in 2009 when he was off work. She also argues that he
earned substantial amounts of overtime once he returned to work and there is no
basis for an additional claim. With regard to the opportunity for a promotion,
she says that the evidence does not establish that there was a real possibility
Mr. Bossio lost an opportunity as a result of the accident.

Overtime Claim

[58]        
There was no documentary evidence regarding the overtime pay earned by
Mr. Bossio. The testimony given by him lacked precision, but he indicated the
approximate amount of overtime he earned in each year. He said that prior to
the accident, he earned about $5,000 per year in overtime and that the amount
of overtime available increased after the accident. He also said that he earned
approximately $10,000 in overtime pay in 2011 and would earn a similar amount
in 2012. He was not precise about what he earned in 2010 but claims a loss for
that year and 2011 of $5,000.

[59]        
I accept that Mr. Bossio has proved a substantial likelihood that he
lost the opportunity to earn overtime income when he was off work in 2009. I
also accept that he lost the opportunity to earn additional overtime income in
2010. I do not accept that he has shown a loss of overtime after 2010. He
earned twice as much in annual overtime income in 2011 and 2012 as he did
before the accident. It would be pure speculation to conclude that he could
have worked more overtime but for the accident. He provided no evidence of
specific opportunities for overtime that he was not able to take advantage of.
There was no evidence regarding overtime paid to others in his department.

[60]        
Of course, the assessment requires consideration of all of the evidence,
not a calculation. When I consider the evidence, I conclude that a reasonable
award for his gross loss of income from overtime is $6,500 for 2009, and $2,500
for 2010.

Lost Promotion

[61]        
Mr. Bossio’s claim for the lost opportunity of a promotion is a classic
claim based on a hypothetical event. As such, it need not be proven on a
balance of probabilities. As noted in Gill v. Probert, 2001 BCCA 331, at
para. 9, there is no reason to distinguish between claims based on hypothetical
events after trial and those that might have occurred before trial. In Athey
v. Leonati, [1996] 3 S.C.R. 458, at para. 27, the Court described the
proper approach to claims based on hypothetical events:

Hypothetical events (such as how
the plaintiff’s life would have proceeded without the tortious injury) or
future events need not be proven on a balance of probabilities. Instead, they
are simply given weight according to their relative likelihood… For example,
if there is a 30 percent chance that the plaintiff’s injuries will worsen, then
the damage award may be increased by 30 percent of the anticipated extra
damages to reflect that risk. A future or hypothetical possibility will be
taken into consideration as long as it is a real and substantial possibility
and not mere speculation… [Citations omitted.]

[62]        
The task here is to examine the evidence of Mr. Simpson, as he is the
only one who knew of the opportunity for a promotion, and determine if Mr.
Bossio has met the onus to show that the promotion was a real and substantial
possibility and not mere speculation. If I conclude that he has met that onus,
then I must consider the likelihood that Mr. Bossio would have obtained such a
promotion if he had not been injured.

[63]        
The task is difficult given the imprecision of Mr. Simpson’s evidence.
It was lacking in particulars on basic matters such as dates and the process
for hiring for the positions to which Mr. Bossio might have been promoted. Mr.
Simpson had difficulty answering questions directly. His evidence was full of
comments and statements of opinion on tangential matters. Nevertheless, he was
well intentioned and held a high opinion of Mr. Bossio’s abilities.

[64]        
Mr. Simpson indicated that Mr. Bossio was considered for a manager’s
position in the summer of 2008. The executive director, to whom Mr. Simpson
reported, asked if he thought Mr. Bossio could take over the position as group
manager of the Alternative Dispute Resolution (“ADR”) process. Mr. Simpson
responded favourably but the funding never came available for the position
because a necessary Memorandum of Understanding (“MOU”) with the interested
parties was not finalized until the end of 2009. By that time, Mr. Simpson had
lost track of what happened and he no longer considered Mr. Bossio for that position.
However, that was not because of Mr. Bossio’s accident.  It was because the
Independent Assessment Process (“IAP”) had started.

[65]        
By the spring of 2010, Mr. Simpson considered Mr. Bossio for a different
SI-5 position which would have been with the IAP program. The position would
have required Mr. Bossio to travel quite frequently and would have involved
dealing directly with many victims of residential school abuse. Mr. Simpson
noted a change in Mr. Bossio’s personality after the accident and was concerned
about his wellbeing. He believed that Mr. Bossio seemed somewhat depressed. Mr.
Simpson was concerned that he would have difficulty traveling and listening to
the stories of abuse. Mr. Simpson said he was also concerned about the politics
of the situation and had to be careful about how he proceeded.

[66]        
While it was left somewhat unclear, it appears that Mr. Simpson never
actually took any steps to put Mr. Bossio forward for a promotion to a
manager’s position. Mr. Simpson did not describe the process that would have
been required to have Mr. Bossio promoted. He did not ask Mr. Bossio if he
would have problems listening to stories of abuse or whether he could handle
the additional travel. Mr. Bossio testified that he did not have any difficulty
dealing with the victims’ stories. Indeed he felt honoured to be in a position
to listen.

[67]        
While Mr. Simpson did not have any authority to offer Mr. Bossio a
promotion, he would have had some influence over Mr. Bossio’s chances for
promotion. He was his direct supervisor and believed that Mr. Bossio was ready
for a managerial position in 2008. He was seriously considered for the position
in the ADR program that never came available. Had the MOU been signed in 2008,
he would have been on the short list for the position. In 2010, when Mr. Bossio
became involved in the IAP, Mr. Simpson was in an even better position to help
him obtain a promotion. However, he decided not to explore that possibility
because of changes he saw in Mr. Bossio. There is no question that those changes
were attributable to the injuries suffered in the accident.

[68]        
I am satisfied on the basis of this evidence that Mr. Bossio has proved
there was a real and substantial possibility that he would have been seriously
considered for a promotion had he not been injured. He has also shown there was
a good chance that he could have been successful given the strong support he
had from Mr. Simpson. The chance of the hypothetical event – a promotion –
occurring, but for the injury, is beyond mere speculation.

[69]        
Mr. Bossio argues that the relative likelihood of his promotion was very
high. I do not agree. Mr. Simpson did not have the ability to decide the issue.
Any position would have been posted and open to other candidates within the
government. It is possible he would not have been the successful candidate. It
is also possible that no position would have come available. There was no
evidence regarding the creation of manager’s positions within the IAP. Even if
one was contemplated, it could have taken a lengthy time before it would have
been filled. Funding may not have been obtained for a proposed position. Of
course, this is what happened with the ADR position in 2008.

[70]        
I must assess the loss suffered by Mr. Bossio taking into account these
circumstances. He argues that I should award the full amount of $60,000 which
represents $20,000 per year for three years. This assumes he would have been
promoted early in 2010. However, that has to be discounted by all of the
matters I referred to above to take into account the relative likelihood of the
occurrence of the promotion. As I have indicated, a promotion was by no means
certain. There were many reasons why it may not have happened. In my view, it
is fair to award Mr. Bossio $15,000 which is 25% of that figure. That takes
into account both the relative likelihood of such a promotion and the
possibility that if he had been promoted it would have been for a shorter
period of time.

[71]        
In summary, for past income loss, Mr. Bossio is entitled to the wage
replacement amount for which he must reimburse his employer or insurer. In
addition he is entitled to $9,000 for lost overtime pay in 2009 and 2010. He is
also entitled to $15,000 for the lost opportunity of promotion. Those figures
are gross amounts which do not take income tax into account.

Issue 3.   What amount should
be awarded for future income loss or for loss of capacity to earn income?

[72]        
Mr. Bossio argues that his earning capacity has been seriously
compromised and that it will continue to be compromised in the foreseeable
future. He says that merely because he returned to his existing work does not
mean that he cannot prove a future income loss. He says that there are two main
reasons his capacity to earn income has been reduced. First, he says the
medical evidence establishes a 10 to 15% loss in his capacity to work. He
argues that one way to look at this is to assume that Mr. Bossio will continue
to suffer an inability to perform overtime just as he was unable to do after
the accident. Second, he says that the loss of the promotion will likely affect
him in the future. He is not starting off his future earnings from the level he
should have.

[73]        
The defendant argues that Mr. Bossio has failed to prove a loss of
future capacity. She says that Mr. Bossio has not only continued to work for
the last two and a half years but has received praise and recognition from his
employer for the work he has done. In addition, he received a salary increase
in 2010 and will likely continue to advance his position. The defendant argues
that with his qualifications and experience he is well placed to further his
career as he moves forward after the winding up of the IAP.

Analysis

[74]        
Like the past loss of an opportunity for a promotion, the loss of
capacity claim does not have to be proven on a balance of probabilities. In Rosvold
v. Dunlop, 2001 BCCA 1, the court described the test for assessing damages
for loss of earning capacity at para. 9:

Because damage awards are made as
lump sums, an award for loss of future earning capacity must deal to some
extent with the unknowable. The standard of proof to be applied when evaluating
hypothetical events that may affect an award is simple probability, not the
balance of probabilities: Athey v. Leonati, [1996] 3 S.C.R. 458.
Possibilities and probabilities, chances, opportunities, and risks must all be
considered, so long as they are a real and substantial possibility and not mere
speculation. These possibilities are to be given weight according to the percentage
chance they would have happened or will happen.

[75]        
While Mr. Bossio’s work with the IAP was coming to an end during the
week of the trial, there was no suggestion that he will lose his current job.
His employer is currently providing training for him as a mediator through the
B.C. Justice Institute. It is anticipated that there will be other residential
school claim processes that will be handled by the agency. There are apparently
two class actions which could be resolved through some process similar to the
IAP. As a result, it seems likely that Mr. Bossio will be able to find work in
his chosen field with the federal government.

[76]        
In light of this situation, I conclude that Mr. Bossio will continue to
be a valued employee and that he will have opportunities for promotion in the
near future. He has shown an ability to handle difficult political situations
with some First Nation communities and the ministry. He has no difficulty
listening to and responding effectively to victims of residential abuse. Any concerns
that Mr. Simpson had in 2010 regarding Mr. Bossio’s ability to carry on with
the work have been satisfied.

[77]        
My conclusion regarding the nature and extent of Mr. Bossio’s injuries
means that the first basis on which he relies to establish a loss of future
capacity has not been proved. I have found that he is now substantially
recovered and that he will fully recover in the next couple of years. I also
concluded that Mr. Bossio did not suffer any overtime loss in the last two
years. In other words, I reject his argument that he has proved an ongoing loss
of capacity of 10 to 15%, or any other amount. While he has had some difficulty
when traveling out of town, he has managed to deal with those issues. As he
will continue to improve, he cannot establish a future loss on the basis of an
inability to carry out the kind of work tasks he will likely perform. Of
course, Mr. Bossio will not be engaged in work that will require extended or
vigorous physical activity. As Mr. Simpson noted in his evidence, Mr. Bossio is
well qualified for future opportunities within the ministry or elsewhere given
his education, work experience and skills.

[78]        
The second basis for the loss of capacity claim has more merit. If Mr.
Bossio had obtained the promotion, he would have been better positioned for the
transition he must now go through at the end of the IAP. He would have had a
better chance of obtaining a job at a higher level. In other words, the loss of
the past opportunity, to the extent that it was likely, will continue in the
future. The impact of this lost opportunity has the potential to continue for
more than a short time. Given his passion for the work and the support of his
employer, it is highly likely he will continue to be a success. However, even
though I conclude that Mr. Bossio will likely obtain a promotion to a manager’s
position, he will suffer a further loss because his pay level will be a step or
two behind what it might have otherwise been. Quite simply, I find that Mr.
Bossio has proved there is a real and substantial possibility he will suffer a
continuing loss for a period of time as a result of the lost chance of an early
promotion.

[79]        
The assessment of the loss is more difficult than the assessment of the
past loss. I assessed the likelihood of a promotion prior to trial at 25%. A
similar factor must be applied to any future loss arising from that loss of a
promotion. When I take into account all of the circumstances, I would award
$20,000 as a future loss of capacity arising from the delay in promotion and increases
in pay levels.

Issue 4.   What amount should be awarded for special damages?

[80]        
The defendant did not contest the special damage expenses. The special
damages for physiotherapy, massage therapy, psychological counselling,
prescriptions, parking and transportation total $15,258.66. Mr. Bossio is
entitled to an award for special damages in that amount.

Issue 5.   What amount should be awarded for the cost of future care?

[81]        
Mr. Bossio will continue to require counselling, physiotherapy and
massage therapy. He argues that a fair amount to award in light of the
recommendations of the physicians is $10,000. The defendant argues that the
proper range based on those recommendations is $3,000 to $5,200.

[82]        
The defendant’s calculation based on the recommendations is closer to
the mark. I award $5,500 for the costs of future care.

Summary

[83]        
In summary, I award the following amounts under the noted heads of
damages:

[84]        
Mr. Bossio is entitled to costs at Scale B, subject to any submissions
the parties wish to make regarding offers of settlement.

“Butler J.”