IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20121119

Docket: S095976

Registry:
Vancouver

Between:

George Hunt

Plaintiff

And

Jasbir Sing Ugre,
Sultant Sweet Shop & Restaurant and
DaimlerChrysler Financial Services Canada Inc.

Defendants

And

Docket: M063844

Registry: Vancouver

Between:

George Hunt

Plaintiff

And

Aung Tin and Mar
Lar Win

Defendants

Before: The Honourable Madam
Justice Dardi

Reasons for Judgment

INTRODUCTION

[1]            
The 58-year old plaintiff, George Hunt, was involved in two motor
vehicle accidents, one on October 28, 2004 (the “2004 Accident”), and the
other on November 28, 2007 (the “2007 Accident”).  In these reasons, I
will refer to these two accidents collectively as the “Accidents”.  The
defendants admit liability for the Accidents.

[2]            
At issue in this action is the assessment of Mr. Hunt’s claim for
damages.

[3]            
It is uncontroversial that Mr. Hunt suffered injuries in the
Accidents but the defendants vigorously dispute the quantum of damages he
claims. The principal controversy is whether Mr. Hunt currently suffers
from a disabling somatoform disorder and, if so, whether the Accidents caused that
condition. The primary contention of the defence on this point is that Mr. Hunt
has failed to prove his case. The defendants also assert that Mr. Hunt has
failed to mitigate his damages.

[4]            
The unfortunate constellation of Mr. Hunt’s various medical afflictions
compounds the complexity of the assessment of damages in this case.

[5]            
It is common ground that the injuries sustained by Mr. Hunt in the
two Accidents are indivisible and that for purposes of this trial the Court
need not consider an apportionment of damages between the defendants: see Bradley
v. Groves, 2010 BCCA 361 at para. 32.

FACTS

[6]            
Before addressing the damages analysis, I turn to the facts established
on the evidence.  I will address the facts in the following order:

·      
general background;

·      
Mr. Hunt’s medical condition pre-2004 Accident;

·      
the 2004 Accident;

·      
the 2007 Accident to date of trial;

·      
Mr. Hunt’s current circumstances;

·      
Expert Evidence.

General Background

[7]            
Mr. Hunt, his wife and six-year old son emigrated from Russia to
Canada in October 1996, primarily for political reasons.

[8]            
In Russia, Mr. Hunt attended university and acquired the
credentials to become a geologist.  Thereafter, until his immigration to
Canada, he worked in various positions which generally related to geology.

[9]            
Mr. Hunt’s English skills were modest and after arriving in Vancouver,
both he and his wife enrolled in ESL courses.  His wife obtained employment as
a library assistant and she eventually became a teacher.  From approximately
1998 through 2001, Mr. Hunt was the primary caregiver for his son.  From
1997 to 2002, Mr. Hunt enrolled in a number of courses to upgrade his education
and skills.

[10]        
Mr. Hunt was unable to find work as a geologist and in 2002 he
began working as a security patrol officer with Paladin Security Group Ltd.
(“Paladin”).

Mr. Hunt’s Medical Condition Pre-2004 Accident

[11]        
In the late 1990s, Mr. Hunt developed symptoms related to loss of
balance, dizziness and ringing in his ears.  He was diagnosed with Ménière’s disease
in 2001.

[12]        
In December 2002, Dr. Vorobeychik became Mr. Hunt’s family
doctor and he has continued to see her on a regular basis since that time. The
evidence shows that from December 2002 up until the date of the 2004 Accident, Mr. Hunt
saw Dr. Vorobeychik 35 times.  In the same period, Dr. Vorobeychik
made 7-8 specialist referrals for Mr. Hunt.

[13]        
Mr. Hunt was involved in a prior motor vehicle accident on January
3, 2003 (“the 2003 Accident”).  Although Mr. Hunt did not miss any work
following this accident, he did attend physiotherapy treatments for the
injuries he sustained.  In Mr. Hunt’s written report dated March 30, 2003,
to Dr. Vorobeychik regarding the 2003 Accident, he described his symptoms as
numbness/tingling in his left arm, mid-back pain, difficulties sleeping, memory
loss and groin pain. In cross-examination, Dr. Vorobeychik agreed that
most of these symptoms pre-existed the 2003 Accident.

[14]        
On February 3, 2003, during his bike patrol at Paladin, Mr. Hunt fell
off his bike.  He reported complaints of left arm numbness.

[15]        
On January 11, 2004, he reported to Dr. Vorobeychik that he had fallen
and suffered back pain.

[16]        
Mr. Hunt sustained another work-related injury when he fell off his bike
on July 1, 2004.  His complaints included headaches and abrasions.

[17]        
The evidence shows that prior to the 2004 Accident, Mr. Hunt sought
medical treatment for:

                       
(i)         
neck and back pain;

                      
(ii)         
leg and groin pain;

                     
(iii)         
left arm numbness;

                    
(iv)         
shin splints;

                     
(v)         
wrist problems;

                    
(vi)         
pain in his feet;

                   
(vii)         
sleep and anxiety problems for which he was periodically prescribed
medication, including Clonazepam;

                 
(viii)         
headache and memory issues; and

                    
(ix)         
tenderness throughout his body.

[18]        
Mr. Hunt acknowledged in cross-examination that prior to the 2004
Accident he had always been concerned with managing his own health.  He
contacted his doctor regarding “any disturbance” to his body and sought
consultations with various specialists “just in case.”

2004 Accident

[19]        
Mr. Hunt and his wife were travelling on East 22 Avenue – near the
intersection of East 22 Avenue and Rupert Street – in Vancouver, B.C., when
their vehicle which was stationary, was hit by a Jeep which emerged from an
alley on their left.  Mr. Hunt was wearing a seatbelt.  The defendant’s
vehicle collided with the left front corner of Mr. Hunt’s vehicle, and his
vehicle sustained approximately $5,000 in damage.  Mr. Hunt exchanged
information with the driver and drove home.

[20]        
Mr. Hunt suffered soft tissue injuries primarily to his mid-back.  In
addition, Mr. Hunt initially complained of chest pain, dizziness, shortness
of breath, nausea and weakness and numbness in his legs, but those symptoms
resolved after a few days.

[21]        
Within a few days of the 2004 Accident, Mr. Hunt returned to work
as a site supervisor at Paladin, however, his attempted return to work was
unsuccessful.  He continued to report back pain, headache symptoms and problems
with insomnia to Dr. Vorobeychik.  She prescribed anti-inflammatory and
sleeping medication.  Mr. Hunt attended physiotherapy, massage therapy,
chiropractic treatments and acupuncture.

[22]        
Mr. Hunt returned to his job at Paladin on or about January 25,
2005.  After a few days of work, he was asked to meet with his superiors.  At
the meeting, which Mr. Hunt described as “an interrogation”, he was
dismissed.  As a result of the incident on January 25, 2005, the evidence shows
that Mr. Hunt experienced an acute anxiety attack and was taken to the hospital
by ambulance.  His termination clearly was a very significant and stressful
event for Mr. Hunt.

[23]        
In a letter dated January 31, 2005 (‘the Letter”), Mr. Hunt informed
Dr. Vorobeychik that:

For two years, I have had acquired health problems with my
Company’s Labour Conditions. This has made me an invalid now. (emphasis
added.)

[24]        
In the Letter, Mr. Hunt describes the various conditions that he
acquired while working with Paladin, including “neuroses”, digestive system
problems due to lack of lavatory facilities and shin-split pain.

[25]        
He concludes his Letter as follows:

All the above and my health
problems, I have acquired working with Paladin Security Group…That has made
me not only able to any job now but also living with pains on pills.

[26]        
Mr. Hunt remained off work for three months.  In March 2005, Dr. Vorobeychik
found Mr. Hunt to be fit to return to work.  Mr. Hunt conceded in
cross-examination that by April 2005 his back pain had improved and that he was
sleeping better.

[27]        
Although Dr. Vorobeychik does not recall this incident, Mr. Hunt
says that he injured his back in 2005 when he was disembarking from a bus.  In
his testimony, Mr. Hunt described “very strong back pain.”

[28]        
According to Mr. Hunt, in April 2005, he had missed the seasonal
opportunity to apply for positions as a geologist.  He therefore applied for
security guard jobs but without any success.  Mr. Hunt received unemployment
insurance benefits and in late 2005, he was referred to the Neil Squire
Society, an organization which assists unemployed persons to return to the
workplace.  They assisted Mr. Hunt in pursuing employment with geological
companies.

[29]        
In March 2006, Mr. Hunt obtained a geology-related position with
Gibraltar Mines Ltd. (“Gibraltar”).  He was employed at a mine site from March
12, 2006, to June 1, 2006.  He was not asked to return for reasons that were
not established on the evidence at trial.

[30]        
In the early fall of 2006, Mr. Hunt was in the process of securing
further employment as a geologist and he had received expressions of interest
from various recruiting firms and exploration companies.

[31]        
Unfortunately, in September 2006, Mr. Hunt’s wife and son left him.
This resulted in an incident in which police officers attended his home. The
reasons for his marital separation were not established on the evidence.  It is
common ground that this was a very devastating and traumatic experience for Mr. Hunt. 
Mr. Hunt became very depressed and he recounted an incident in September
2006 when he broke down crying in a job interview. The evidence supports a
finding that Mr. Hunt became socially isolated after the separation.

[32]        
In October 2006, Dr. Vorobeychik referred Mr. Hunt to a
psychiatrist, Dr. Levin, who treated Mr. Hunt from October 2006 until
April 1, 2008.  I will discuss Dr. Levin’s diagnosis later in these
reasons, in the section on Expert Evidence.

[33]        
Mr. Hunt was unemployed from June 2006 until May 16, 2007, when he
secured work as a geologist with Coast Mountain Geological Ltd (“Coast
Mountain”).

[34]        
In October 2007, Mr. Hunt’s home was robbed, which he found stressful.

2007 Accident to Date of Trial

[35]        
On the evening of November 28, 2007, Mr. Hunt was returning from
the airport from his flight home from a northern work camp.  The taxi in which
he was a passenger was rear-ended on Marine Drive, in Vancouver, B.C.  Mr. Hunt
conceded that the accident involved minimal impact.  No emergency vehicles
attended the scene and Mr. Hunt did not seek any immediate medical treatment.  Mr.
Hunt reported the accident to Dr. Vorobeychik the following day.

[36]        
At trial, Mr. Hunt maintained that his primary symptom following the
2007 Accident was inflammation of his whole body.  He described “excruciating
pain.”  He also described sleeplessness, headaches, memory loss and increased sensory
sensitivity to noise, light and smell.

[37]        
Dr. Vorobeychik’s December 15, 2007, report makes no mention of the 2007
Accident.  By the time Mr. Hunt reported this accident to Dr. Levin on December
24, 2007, his energy and motivation had improved and he had discontinued all
medication except for the pre-accident prescription for Clonazepam.

[38]        
Mr. Hunt returned to work at Coast Mountain on February 28, 2008. 
He continued to work there until he was laid off on October 3, 2008, because of
economic conditions.  He has not worked since.

[39]        
In October 2008, Mr. Hunt was diagnosed with a hearing loss.  In late
2008 Mr. Hunt was diagnosed with Type 2 diabetes.  In February 2009, a
consulting general practitioner, Dr. Venter, diagnosed Mr. Hunt with
fibromyalgia.

[40]        
In September 2010, Dr. Vorobeychik again referred Mr. Hunt to
Dr. Levin for treatment of his psychological issues.

[41]        
Although he was able to walk normally without a cane, Mr. Hunt, for
some period of time, persisted in using a cane for support.  He initially used a
cane on an occasional basis but for some period after April 2009, until at
least January 2012, he used it on a more frequent basis.  According to
Mr. Hunt, after Dr. Vorobeychik advised him that the cane would
aggravate his wrist, he eventually ceased using the cane.

[42]        
I will return to Mr. Hunt’s overall health condition later in
these reasons in the section on Expert Evidence.

Mr. Hunt’s Current Circumstances

[43]        
Mr. Hunt currently lives alone in a rented apartment in Burnaby.  He
is unemployed and he receives social assistance disability benefits because of
his Ménière’s disease.

[44]        
Mr. Hunt’s existence is primarily devoted to chronicling and seeking
treatment of his various symptoms.  He takes prescription and non-prescription
medication.  He periodically updates a lengthy document for his treating
doctors, in order that they can adjust his treatments to the “proper level.”  In
this document, he records his condition, his daily schedule and a list of his prescription
and non-prescription medication.  Mr. Hunt takes his vital signs daily and
records the results in a database.  The photographs of his self-help devices and
equipment were tendered in evidence. He has even set up a system of fans in his
bathroom where he can blow warm air on himself when he is taking a bath.  His
array of self-help devices was aptly described by Mr. Hunt’s counsel as “prodigious”.

EXPERT EVIDENCE

Plaintiff’s Experts

[45]        
The plaintiff relied on the expert evidence of Dr. Vorobeychik, Dr. Levin
and Dr. Venter.  Each of the doctors attended for cross-examination at
trial.  The key portions of their reports are summarized below.

i)      Dr. Vorobeychik

[46]        
Dr. Vorobeychik, Mr. Hunt’s family doctor prepared three reports dated December 15,
2007, July 6, 2010 and November 6, 2011.

[47]        
 In her first report dated December 15, 2007, she addresses the physical
injuries that Mr. Hunt sustained in the 2004 Accident.  On physical
examination following the 2004 Accident, Mr. Hunt was tender in the
paracervical and paravertebral muscles.  The range of motion in his cervical
and lumbar spine was reduced.  As I mentioned earlier, she recommended that Mr.
Hunt take anti-inflammatory medication and attend physiotherapy treatments.

[48]        
Although Dr. Vorobeychik acknowledged in cross-examination that
Mr. Hunt was injured in the 2003 Accident, she stated that he did not
complain of back pain immediately prior to the 2004 Accident.

[49]        
As I mentioned earlier, Dr. Vorobeychik makes no mention of the 2007
Accident in her first report.

[50]        
As of December 2007, Mr. Hunt reported only marginal improvement in
his condition and he continued to complain about chronic back pain, weakness in
his legs, depression and headaches.  According to Dr. Vorobeychik, he
developed psychological symptoms, such as sleep and mood disorders,
irritability and loss of confidence and motivation.

[51]        
As of December 15, 2007, Dr. Vorobeychik was of the opinion
that despite his medical problems, Mr. Hunt was able to work.

[52]        
Although Dr. Vorobeychik stated that Mr. Hunt experienced
subsequent secondary losses relating to his marital and employment problems, she
concluded as follows:

Since he had no pre-existing
psychiatric disorders, his depression is most likely related to the MVA and is
compounded by the lack of visible improvement in his symptoms.

[53]        
On July 6, 2010, Dr. Vorobeychik updated her December 15, 2007,
report.  In her second report, she stated that Mr. Hunt’s complaints of
chronic neck and back pain and stiffness, memory problems, headaches, disturbed
sleep, fatigue, emotional distress, depression, anxiety, diabetes,
hypertension, multiple chemical skin sensitivities and Ménière’s disease with
episodic vertigo attacks, were triggered by the physical trauma incurred as a
result of the 2004 and 2007 Accidents and “subsequent psychological stressors.” 
However, in cross-examination, she acknowledged that his diabetes,
hypertension, skin sensitivities and Ménière’s disease were not related to the Accidents.
She also conceded that the chronic neck and back pain stiffness (worse with
exertion or sustained static postures), memory problems, headaches, disturbed sleep,
fatigue, emotional distress, depression and anxiety, all “generally” pre-existed
the 2004 Accident.

[54]        
In her final report dated November 6, 2011, Dr. Vorobeychik
opined that Mr. Hunt’s condition has not improved, and that he continued
to suffer from multiple health and related social problems which she described
as follows:

(i)             
fibromyalgia; chronic neck and back pain;

(ii)            
fatigue; sleep disturbance; depression; emotionability; anxiety;
decreased concentration;

(iii)           
headaches;

(iv)          
diabetes;

(v)           
hypertension;

(vi)          
balance; dizziness;

(vii)         
functional disability managing daily affairs; and

(viii)       
problems with returning to work resulting in social problems and
interpersonal issues (2010-2011).

In her final report, Dr. Vorobeychik
stated that her general assessment of Mr. Hunt’s health issues had not
changed; she concluded that his health issues are “intertwined with adverse
social and psychological factors and litigation.”

ii)     Dr. Venter

[55]        
Dr. Venter is a family practice physician, with a special interest
in fibromyalgia.  He assessed Mr. Hunt on February 20, 2009.  He
prepared a report dated March 25, 2010.

[56]        
According to Dr. Venter, fibromyalgia syndrome is not clearly
understood; he described it as a chronic pain illness in which the central
nervous system is hypersensitive or overactive.

[57]        
Dr. Venter diagnosed Mr. Hunt with fibromyalgia syndrome because he
found 11 out of 18 tender points “as per the 1990 American College of
Rheumatology Criteria.”  He opined that there is a high probability that Mr.
Hunt’s fibromyalgia syndrome was “triggered or flared-up” by the two Accidents. 
Dr. Venter’s opinion was founded upon Mr. Hunt’s self-report that prior to
the Accidents he was a “very active geologist” and had not experienced any
chronic wide-spread pain.

iii)   Dr. Levin

[58]        
Dr. Levin is Mr. Hunt’s treating psychiatrist.  As I mentioned
earlier, Dr. Vorobeychik initially referred Mr. Hunt for psychiatric
assessment and treatment in October 2006, after his marital separation.

[59]        
In the initial psychiatric assessment with Dr. Levin on October 27,
2006, Mr. Hunt attributed his psychological and emotional problems to his
marital separation.

[60]        
Dr. Levin prescribed Seroquel and Celexa and reduced Mr. Hunt’s
dosage of Clonazepam which he had been taking prior to the 2004 Accident.

[61]        
Dr. Levin saw Mr. Hunt on December 18 and December 27, 2006,
and then on a monthly basis from February through June, on August 7, 2007, and
October 26, 2007.  They had a follow-up appointment on April 1, 2008.

[62]        
In his first report dated March 2, 2010, Dr. Levin concluded
as follows:

Overall, it seems that Mr. Hunt’s physical injuries and
chronic perception of pain caused him the development of adjustment disorder. 
His stressors accumulated and he most likely at some point developed a major
depressive episode complicated by chronic pain. It is evident that Mr. Hunt’s
psychiatric condition was mainly caused by the pain related to the injuries
that he sustained in these motor vehicle accidents (October 28, 2004 and
November 28, 2007).  Mr. Hunt’s underlying situational stressors
and family dynamics probably also played a significant role in his somatization
phenomena and in the development of pain disorder as a psychiatric condition. 
However, with treatment he was able to return to gainful employment.  Given Mr. Hunt’s
tendencies for somatization, his prognosis for recovery, however, remains
guarded. (emphasis added.)

[63]        
As I mentioned earlier, in September 2010, Dr. Vorobeychik referred
Mr. Hunt to Dr. Levin for a continuation of his psychiatric
treatment.  Since September 2010, Dr. Levin has seen Mr. Hunt
regularly, on approximately a monthly basis.  Dr. Levin prepared a second
report dated October 3, 2011.

[64]        
In September 2010, Dr. Levin’s diagnostic impression was that Mr. Hunt’s
major depressive disorder was complicated by a psychiatric diagnosis of pain
disorder.  At that time, he suggested that Mr. Hunt start treatment with
Cymbalta; he also prescribed Clonazepam.

[65]        
In 2010, Mr. Hunt presented with complaints of depression, anxiety,
significant fatigue and with what Dr. Levin described as a “significant
preoccupation with pain”.  Dr. Levin was also of the view that Mr. Hunt, who is
overweight, presented with features of metabolic syndrome.  Dr. Levin
attributed the change in Mr. Hunt’s metabolism to his depression.  Mr. Hunt
also presented with underlying obsessive-compulsive and perfectionist
personality traits which complicated his clinical presentation.  Mr. Hunt
reported to Dr. Levin that he was spending the majority of his time
managing his pain with different mechanical devices, self-massage with needles,
and other unusual therapeutic methods.  In his second report, Dr. Levin
observed that “Mr. Hunt’s conviction of having an incurable medical
condition which, in his opinion, doctors cannot adequately diagnose but call ‘fibromyalgia’
seems to have delusional intensity.”  Dr. Levin remarked that Mr. Hunt
appeared to completely devote his life to activities directed at managing his
pain and perceived disabilities, was socially withdrawn and did not appear to
have any interest other than researching new methods of “treatment.”

[66]        
In Dr. Levin’s opinion, from a psychiatric perspective, Mr. Hunt presented
with a somatization disorder not otherwise specified, the clinical features of
which he explained by referring to the following definition from The
Comprehensive Textbook of Psychiatry:

Characteristics of somatoform
disorders are two enduring clinical features: 1. Somatic complaints that
suggest major medical maladies yet have no associated serious, demonstrable, peripheral
organ disorder; and 2. Psychological factors and conflicts that seem
important in initiating, exacerbating, and maintaining the disturbance…Because
of their intense bodily perceptions, restricted level of physical functioning
and morbid beliefs, the patients have become convinced they harbor serious
physical problems. Moreover, the symptoms are not wilfully controlled. Whatever
their faults and problems, the patients are not malingerers. Yet their
physicians’ physical and laboratory examinations persistently fail to evince
significant substantiating data about physical infirmity save for the patient’s
vigorous and sincere complaints.

[67]        
Dr. Levin concluded as follows:

Therefore, from a diagnostic perspective, Mr. Hunt
presents with a complicated clinical presentation characterized by a
combination of chronic depression, somatization disorder NOS [not otherwise
specified] and metabolic syndrome resulting in ongoing social/occupational
dysfunction.

In my clinical opinion, Mr. Hunt’s motor vehicle
accidents of October 28, 2004 and November 28, 2007 and related
physical injuries triggered the onset of his somatic preoccupations and most
likely resulted in the development of a somatization disorder NOS complicated
by chronic depression and anxiety.

Mr. Hunt seems to have underlying obsessive-compulsive
personality traits, which predisposed him to the development of maladaptive
coping strategies and a propensity to dwell/obsess on somatic complaints,
expressing his emotional disturbances through physical pain. With time he seems
to have become pervasively preoccupied with numerous somatic complaints and
physical pain to the extent that he stopped socializing, became socially
withdrawn, spending the majority of his time trying to manage his
subjectively-perceived pain.

Mr. Hunt seems to have co-existent situational stressors
(complicated family dynamics, being abandoned by his family), unemployment or
loss of employment, etc.

It is most likely that the motor
vehicle accidents in question played a most prominent role in initiating or
triggering the onset of his psychiatric disorder and related disabilities.

Mr. Hunt’s depressive
disorder seems to have diminished in its severity but represents chronic
depression with underlying anxiety.  It seems, however, that the combination of
so-called existential depression (with underlying pervasive negativism),
tendencies for somatization and maladaptive coping strategies related to his
obsessive-compulsive personality disorder makes his prognosis guarded.  In my
clinical opinion, Mr. Hunt remains disabled from his own occupation or any
other occupation for which he is suited by his education and experience. (emphasis
added.)

[68]        
In Dr. Levin’s opinion, Mr. Hunt’s belief that he has a severe
physical disability is of “an unconscious derivation.”

[69]        
Dr. Levin expressed the view that Mr. Hunt is reluctant to
assume an aggressive psychopharmacological treatment for his underlying chronic
depression, as he is convinced that his physical problems are real and would
not respond to treatment with any psycho-active agents.  Additionally, from a
psychotherapeutic perspective, Dr. Levin observed that Mr. Hunt appears to
be resistant to any attempts of cognitive restructuring.

[70]        
Finally, Dr. Levin opined that Mr. Hunt’s prognosis for
recovery and/or return to a more productive lifestyle remains guarded.  As
referenced above he is of the view that Mr. Hunt is disabled from working
as a geologist or from any other occupation for which he is suited by his
education and experience.

Consultation Reports

[71]        
The parties agreed that the consultation reports of the various
specialists that Mr. Hunt saw on the recommendation of his family
physician would serve as opinion evidence at trial.  None of these doctors were
required to attend for cross-examination.  Their respective reports may be
summarized as follows:

i)     
Dr. O’Connor, Physical Medicine and Rehabilitation

[72]        
In his consultation report dated March 22, 2005, Dr. O’Connor stated
that Mr. Hunt presented with low and mid back pain with sub-occipital
headaches that were improving.  On physical examination, Dr. O’Connor noted
some reduced range of motion in Mr. Hunt’s back. He also noted tenderness over
the lumbosacral junction and the left side of his paraspinal musculature as
well as mild tenderness over the thoracolumbar junction.  Dr. O’Connor
recommended an exercise program and weight loss program for Mr. Hunt.

[73]        
In a subsequent report dated November 3, 2008, Dr. O’Connor
diagnosed chronic and mechanical low back pain and observed that Mr. Hunt’s
symptoms “seem unchanged.”  His recommendation was that Mr. Hunt
participate in a strength and conditioning program and that, given his “risk
factors of morbid obesity and hypertension,” he be referred to the
rehabilitation program at Burnaby General Hospital.  Dr. O’Connor opined
that Mr. Hunt did not meet the qualifications for fibromyalgia.  He made
no arrangements to follow up with Mr. Hunt.

ii)    
Dr. Luongo, Rheumatologist

[74]        
Dr. Luongo examined Mr. Hunt on April 2, 2008, and noted
that Mr. Hunt had multiple chronic pain symptoms and positive tender
points.  Dr. Luongo concluded that there was no clinical or radiographic
evidence of objective rheumatologic pathology to explain Mr. Hunt’s ongoing
symptoms.  He observed evidence of abnormal pain behaviour and exaggerated pain
response and that Mr. Hunt was not cooperative with the range of motion
testing of his spine.  Dr. Luongo made no arrangements for any further
follow-up.

iii)  
Dr. Samad, Otolaryngologist

[75]        
Mr. Hunt was referred to Dr. Samad in relation to his Ménière’s
disease.  He noted that Mr. Hunt was experiencing episodes of imbalance, associated
with nausea and vomiting.  On May 28, 2008, Dr. Samad notes that his
hearing impairment had become progressively worse and that on audiometric
testing Mr. Hunt had a “rather severe profound hearing loss.”

iv)  
Dr. Blokmanis, Otolaryngologist

[76]        
On October 20, 2008, Dr. Blokmanis diagnosed a significant
sensorineural hearing loss in Mr. Hunt.

v)   
Dr. Masé, Endocrinologist

[77]        
On February 24, 2009, Mr. Hunt consulted Dr. Masé with
respect to Mr. Hunt’s recent diagnosis of diabetes.

[78]        
On April 10, 2010, Dr. Masé sent a letter to Mr. Hunt’s
lawyer confirming his opinion that Mr. Hunt’s back pain was not related to
his diabetes.

vi)  
Dr. Prout, Neurologist

[79]        
On September 15, 2009, Dr. Prout assessed Mr. Hunt regarding
his complaints of memory difficulties arising from the 2007 Accident.  He notes
that Mr. Hunt provided an “unusual history.”

[80]        
He found Mr. Hunt’s cognitive testing was within normal limits.  Dr.
Prout was of the view that Mr. Hunt presented with significant non-organic
functional issues and a chronic pain problem.

[81]        
In Dr. Prout’s opinion, Mr. Hunt did not sustain a brain
injury in the 2007 Accident, nor did he diagnose any neurological disorders.

Defendants’ Experts

i)     
Dr. Hill, Orthopaedic Surgeon

[82]        
On April 19, 2010, Dr. Hill conducted an independent medical examination
of Mr. Hunt.  He was not required to testify at trial.

[83]        
 In his report dated April 20, 2010, he opined that in the Accidents Mr. Hunt
sustained soft tissue injuries to the cervicothoracic lumbar spine and that Mr.
Hunt’s “musculoligamentous complaints therefore resulted accordingly.”  Dr.
Hill’s diagnosis included “myofascial back pain.”

[84]        
It was his opinion that Mr. Hunt’s prognosis is very guarded.  He
concluded as follows:

It is my view that Mr. Hunt
has had adequate treatment from a physical point of view.  He has been reviewed
by Dr. O’Connor on two occasions and recommendations made for addressing
his physical symptoms.  However, this is coloured by his mental status which
has been described by Dr. Levin and therefore I think this is impacting on
his recovery accordingly.  He also demonstrated signs of illness behaviour
during the course of my examination which only supports the unresolved psychological
and emotional issues.

[85]        
Dr. Hill was of the view that other than counselling, there were no
further therapeutic measures which would be helpful to Mr. Hunt.

ii)    
Dr. Chernick, Psychiatrist

[86]        
Dr. Chernick conducted an assessment of Mr. Hunt on
June 14, 2010, at the request of the defendants.  His report is dated June
16, 2010.  Dr. Chernick attended for cross-examination at trial.

[87]        
Mr. Hunt refused to stay for a three-hour interview, and imposed a
two-hour limit on Dr. Chernick’s assessment.

[88]        
In Dr. Chernick’s opinion, Mr. Hunt has several narcissistic and
obsessive-compulsive personality traits which render him susceptible to stress
and interpersonal difficulties.  He concluded that Mr. Hunt demonstrated the
use of somatization as a defence.  Dr. Chernick was unable to diagnose a
pain disorder within a reasonable degree of medical certainty because he could
not opine whether Mr. Hunt’s pain was intentionally produced or feigned. 
In any case, Dr. Chernick opined that neither the 2004 Accident nor the 2007
Accident were the cause of any pain disorder.  Dr. Chernick was of the
view that the primary psychological stressors for Mr. Hunt were his
marital separation and the loss of his employment.  He concluded as follows:

Mr. Hunt’s main disability
now is his back pain, which may be representative of a Pain Disorder, however
if it is, the psychological stressors are multiple, including his wife leaving
him, and the fact that he has no contact with his son, and not directly due to
the motor vehicle accidents, which were minor psychological stressors.

FINDINGS ON MR. HUNT’S CONDITION

Comments on Mr. Hunt’s Evidence

[89]        
The defence forcefully asserts that Mr. Hunt’s description of his
symptoms, both to the consulting specialists and to the Court, is “distorted, unreliable
and not credible.”  A somewhat unique feature of this case is that Mr. Hunt’s
counsel does not dispute this assertion.  He submits that, rather than being
fatal to the claim, Mr. Hunt’s lack of reliability is vital to the
somatoform disorder diagnosis.

[90]        
It is key to observe that the medical experts who assessed Mr. Hunt
relied on him, to varying degrees, to describe his history. Their respective medical opinions have
been largely based on the constellation of symptoms reported by Mr. Hunt himself.
The observations of the Court in Fan v. Chana, 2009 BCSC 1127 at
para. 73 (var’d on other grounds, 2011 BCCA 516), are apt in this case:

…
As courts have observed on any number of occasions, the approach taken by
medical professionals is not forensic: they assume that the patient is
accurately reporting to them and then set about a diagnosis that plausibly fits
the pattern of the complaint.

[91]        
The Court’s assessment of the credibility and reliability of
Mr. Hunt’s account of his symptoms to the various professionals who assessed
him is a pivotal issue because the conclusions of the experts are premised upon
his subjective reporting and perception of his symptoms.  The weight that can
be given to those experts’ opinions ultimately turns on the Court’s assessment
of Mr. Hunt’s evidence at trial and the consistency of that evidence with the
information that he previously communicated to the various professionals who
treated and assessed him: Edmondson v. Payer, 2011 BCSC 118 at para. 21,
aff’d 2012 BCCA 114.

[92]        
It is trite to observe that truthfulness and reliability are not
necessarily the same.  I find that, for the most part, Mr. Hunt truthfully
and accurately testified about matters unrelated to his medical condition.  With
respect to his medical condition and the various symptoms that he attributes to
the Accidents, his evidence can only be described as unreliable.  Mr. Hunt’s
reporting of his symptoms that arose from the Accidents to the various healthcare
professionals he consulted was strikingly inconsistent.  At trial, Mr. Hunt was
unable to convey pertinent information relating to his medical condition and
treatments in a coherent fashion.  His testimony in this regard was on occasion
unresponsive and replete with irrelevant details.  On several occasions, Mr. Hunt
was impeached on prior inconsistent statements from his examinations for
discovery.  For the most part, Mr. Hunt was unable to provide a satisfactory
explanation for the inconsistencies and he attributed them to either a misunderstanding
of the question, his faulty memory or his inability to maintain concentration
through his examination for discovery.

[93]        
By way of example, Mr. Hunt testified at his examination for discovery
that the contents of the Letter that he sent Dr. Vorobeychik were true. 
However, he denied this at trial.  Initially, he attributed this inconsistency
to his “memory loss” at the examination for discovery.  Later in his testimony,
Mr. Hunt recanted his explanation on “memory loss” and instead asserted that he
wrote the Letter while he was depressed and “in shock.”  He also contended that
when he wrote the Letter, he had “misunderstood” the cause of his health
problems; he maintained that the health problems he enumerates in the Letter
were actually caused by the 2004 Accident.  His explanation strains credulity
and is demonstrably unreliable.

[94]        
 The following observations of the Court in Hardychuk v. Johnston,
2012 BCSC 1359 at para. 10, are instructive:

When a witness’ evidence is
demonstrably inaccurate, the challenge from an assessment perspective is to
identify the likely reason for the inaccuracy, in a cautious, balanced and
contextually sensitive way.

[95]        
In the end, I approach Mr. Hunt’s evidence with considerable caution.  I
found many aspects of Mr. Hunt’s evidence regarding his health unreliable but I
am not persuaded that Mr. Hunt was deliberately untruthful.

[96]        
I will address whether Mr. Hunt’s complaints of debilitating physical
symptoms are genuine in the next section.

Does Mr. Hunt Have a Psychiatric Condition?

[97]        
As a starting point, I note that, as I understood his submissions, Mr.
Hunt’s counsel is not strenuously asserting that there is an organic basis for
Mr. Hunt’s current chronic pain complaints or that there is any medical
pathology to support the notion that Mr. Hunt’s symptoms from his soft tissue
injuries have persisted.  Rather, the primary contention of Mr. Hunt’s counsel
is that Mr. Hunt currently suffers from a disabling psychiatric condition which
his counsel characterizes as either a pain disorder or somatization disorder.  The
overarching assertion of the defence is that Mr. Hunt has not proven that his
complaints are genuine.  At the heart of the matter is the question of whether
Mr. Hunt currently suffers from a genuine psychiatric condition.

[98]        
I note parenthetically that I have not overlooked that Mr. Hunt suffers from
a variety of medical maladies which have an organic cause, including hearing
loss, Ménière’s disease and diabetes.  However, his counsel does not assert
that those conditions are related to the Accidents.

[99]        
The courts in this province have endorsed the notion that claims of
debilitating pain that persist long past the actual recovery period are
notoriously difficult for the Court to assess: Sandegren v. Hardy (1999),
67 B.C. L. R. (3^rd) 123 at para.1 (C.A.); Hardychuk at para.
131.  The expert evidence of the psychiatrists in this case underscores the complexity
of making such a determination.

[100]     Initially,
Dr. Levin diagnosed Mr. Hunt with an adjustment disorder.  Dr. Levin explained
that an adjustment disorder is a psychiatric condition which is characterized
as the presence of depressive symptoms and anxiety which are caused by
well-identifiable stressors.  Adjustment disorder is a transient psychiatric
condition.  When the stressor disappears, it is also anticipated the adjustment
disorder will disappear and will resolve spontaneously.  In clinical practice,
psychiatrists refer to this condition as a “normative reaction to stress.”

[101]     Dr. Levin
went on to explain that once an individual has developed depressive and anxiety
symptoms in the context of an accumulation of stressors, those symptoms can
progress and develop into a more profound clinical depression or major
depressive disorder.

[102]     A patient
who presents with different symptoms or somatic complaints may be diagnosed
with somatoform disorder.  According to Dr. Levin, those patients express
emotions through physical symptoms.  The initiation or maintenance of symptoms
– including pain – is related to emotional disturbances or underlying and
unconscious psychological conflict.  The correlation between emotional issues
and the expression of physical symptoms is key to the diagnosis.  A
somatization disorder can develop in response to a particular event or it can
develop gradually over time, in the absence of a specific event.

[103]     According
to Dr. Levin, somatization comprises a continuum with non-volitional on one end
of the spectrum and intentional malingering on the other end of the spectrum.  A
somatoform disorder diagnosis requires that a patient’s symptoms not be
intentionally produced or feigned.  Individuals who intentionally exaggerate
their symptoms for an external objective such as litigation are diagnosed as
malingerers.  Psychiatrists diagnose individuals who exaggerate or produce their
symptoms with the goal of remaining in the sick or dependent role for internal
gain such as sympathy as having a factitious disorder.  Dr. Levin acknowledged
that it is sometimes difficult to identify the conditions and that sometimes
all three conditions can co-exist.

[104]     It emerges
from the expert evidence that psychological issues drive the presenting
symptoms in a patient with somatoform disorder.  The key criterion to the
diagnosis of a genuine somatoform disorder is that the patient must have an
unconscious and involuntary belief that they are experiencing the presenting
symptoms.  Somatization does not require an injury; it only requires that a patient
perceive pain or somatic symptoms.  If a patient presents with a variety of
somatic complaints such as headaches or gastrointestinal problems, the proper
diagnosis is somatization disorder.  According to Dr. Chernick, a pain
disorder is a subtype of somatoform disorder.  A diagnosis of pain disorder usually
requires some form of physical problems but the pain must be out of proportion
to the objective medical evidence of physical injury.

[105]     The expert
evidence establishes that a psychiatric diagnosis of somatoform disorder is fundamentally
grounded in the psychiatrist’s understanding of the patient’s background and
the identification of the emotional distress that has initiated a contribution
to the worsening of his or her somatic complaints.  As I mentioned earlier the key
criterion for such a diagnosis is that the presentation not be volitional.  Dr.
Levin characterized this as a “tricky, tricky question.”

[106]     Dr. Chernick
emphasized in his testimony that he was unable to diagnose whether or not Mr.
Hunt suffers from a pain disorder because he could not determine whether or not
Mr. Hunt was feigning his symptoms.

[107]     In
contrast, Dr. Levin, although acknowledging that there may be volitional
aspects to his presentation, opined that Mr. Hunt’s belief in his physical
disability is of an “unconscious derivation.”

[108]     Ultimately,
this is a question to be determined by the Court, taking into account all of
the evidence.

[109]     Dr. Levin
observed that Mr. Hunt who has a tendency to underestimate most physicians’
knowledge and experience and to question their competence.  The Court’s
impression is that Mr. Hunt to a large extent has assumed responsibility for
healing himself because he genuinely believes that he has not received proper
treatment from the numerous physicians that have assessed him.  He presented as
being distrustful of many healthcare professionals and increasingly frustrated
with their inability to make an accurate diagnosis.

[110]     The complexity
of assessing Mr. Hunt’s preoccupation with his health is compounded by the fact
that Mr. Hunt has medical conditions which demonstrably have organic causes. 
On my best assessment, however, Mr. Hunt currently experiences physical
symptoms, for which there is no medical explanation or demonstrable organic
cause; his perception of his symptoms does not accord with his physical
condition.  By way of illustration, in some assessments and consultations, Mr.
Hunt insisted that he was experiencing difficulties with memory loss.  This is
not supported by any objective evidence.  Notably, Mr. Hunt experiences
numbness and weakness in his legs as a reaction to stress.  In his March 2, 2010,
report Dr. Levin notes a correlation between Mr. Hunt’s emotional distress and
his perception of pain.

[111]     Dr.
Levin’s opinion that Mr. Hunt expresses emotional disturbances through somatic
complaints is consistent with the findings of many of the specialists to whom
Mr. Hunt has been referred to over the years.  Frequently, those specialists
were unable to find a basis for Mr. Hunt’s complaints within the context of
their own discipline.  As Dr. Levin pointed out, he would expect to see
reports from consulting specialists which express skepticism regarding the
physical basis of Mr. Hunt’s complaints.

[112]     The
evidence overwhelmingly establishes that Mr. Hunt is preoccupied with his
health.  As I have previously referenced, he utilizes a vast array of self-help
devices.

[113]     On the
totality of the evidence and applying the principles established by the Court
of Appeal in Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318, I have
concluded that Mr. Hunt does have a genuine psychiatric condition.  I find
some of Mr. Hunt’s somatic complaints are too outlandish to be feigned. I
accept that Mr. Hunt genuinely experiences pain and other somatic symptoms
for which there is no demonstrable organic cause. He has genuinely persuaded
himself that he suffers from a debilitating physical condition which is very
real to him and causes him significant distress.

[114]     Dr.
Chernick’s view was that – if Mr. Hunt is found to be not feigning his symptoms
– his complaints of back pain could be representative of a pain disorder.  Dr.
Levin diagnosed chronic depression and the type of somatization disorder which
plagues Mr. Hunt as NOS, not otherwise specified.  A careful review of the
evidence shows that while Mr. Hunt complains of back pain, he also reports
pain throughout his body.  In his testimony at trial, he referred to his daily
thigh pain.  In cross-examination, Mr. Hunt described as suffering from pain
and wide-spread tenderness throughout his body including his toes.  Mr. Hunt
continues to report a variety of somatic complaints – including numbness in his
left arm, leg weakness and a shin-split problem – to both Dr. Levin and Dr. Vorobeychik.

[115]     On my best
assessment, I find that Mr. Hunt suffers from a psychiatric condition and that
he is not feigning his symptoms.  I conclude that it is not necessary to
determine whether Mr. Hunt suffers from a pain disorder, major depressive
disorder, or somatoform disorder NOS, or for the Court to determine as a matter
of medical diagnosis how Mr. Hunt’s psychiatric condition is properly described:
Scott v. Erickson, 2009 BCSC 1298 at para. 69.

Causation

[116]     In order
to justify any compensation for his psychiatric condition, Mr. Hunt must establish
a causal connection between the defendants’ unlawful acts and his condition.  This
is a factual question; Yoshikawa at para.14.

[117]     Causation
is very much at issue. Mr. Hunt submits that he has met the burden of
proving that the defendants’ negligence caused the development of his current
psychological problems.  The defence forcefully submits that he has not
discharged his burden.

Legal Framework

[118]     It is
crucial to keep in mind the analytical distinction between determining
causation and assessing damages, since difference principles govern the two
questions: T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA
670 at para. 16; Drodge v. Kozak, 2011 BCSC 1316 at para. 79; Moore
v. Kyba, 2012 BCCA 361 at paras. 35-36.  Whether a defendant is liable to a
plaintiff for an injury is a matter of causation.  I will return to the
principles which govern the assessment of damages later in these reasons in the
section on damages.

[119]     The
primary test to be applied in determining causation is commonly articulated as
the “but for” test.  The plaintiff bears the burden of showing that “but for”
the negligent act or omission of the defendant, the plaintiff’s injury would
not have occurred.

[120]     The “but
for” test need not be determined with scientific precision.  Rather, causation
is to be proven on a balance of probabilities: the plaintiff must show that it
is more likely than not that, without the tort, that the injury or medical
condition would not have occurred.  The plaintiff need not establish that a
defendant’s tortious conduct is the sole cause of the injury.  The defendant
will be fully liable for the harm suffered by a plaintiff, even if other causal
factors for which he is not responsible were at play, as long as the plaintiff
establishes a substantial connection between the injuries and the defendant’s
negligence beyond the “de minimus” range: Farrant v. Laktin,
2011 BCCA 336 at paras. 9 and 11; Athey; Resurfice Corp v. Hanke,
2007 SCC 7; Clements v. Clements, 2012 SCC 32.

[121]     The Court
must be cautious when inferring causation from a temporal sequence; that is,
from a consideration of pre-accident versus post-accident condition.  In cases
where causation is asserted primarily on a temporal relationship between the
negligent conduct and injury in question, the authorities mandate that a “close
scrutiny of the evidence is required because the inference from a temporal
sequence to a causal connection is not always reliable”: Hardychuk at
para. 130. See also: Madill v. Sithivong, 2012 BCCA 62 at para. 20; White
v. Stonestreet, 2006 BCSC 801 at paras. 74-75.

[122]    
When assessing medical evidence how should the courts approach
causation?  The Court in Tsalamandris v. MacDonald, 2011 BCSC 1138 at
paras. 144-146 (var’d on other grounds, 2012 BCCA 239), provides the following
helpful formulation of the principles which inform the Court’s analysis:

Because the “but for” test is to
be proved on a balance of probabilities, rather than a standard of scientific
certainty, great care must be had in assessing medical evidence.  The human
condition is incredibly complex.  The precise biological, biochemical or
molecular mechanisms causing many medical conditions are often not known and
may not be known for lifetimes to come, and for the same reason, prognosis and
treatment is also often not certain.  In cases where medical causation cannot
by its very nature be proven with certainty, medical experts may not be
comfortable stating a black-and-white opinion as to what “caused” a patient’s
condition.  Often medical evidence refers to known “risk factors” for medical
conditions, or a number of causes, precisely because of the expert’s discomfort
in assigning one “cause” to a complex medical issue.

In determining causation in the
legal context, courts must be mindful to assess the import and substance of the
expert opinion evidence, and to be cautious about the wording used by the
experts so as to not unduly discount or over-weigh the expert’s choice of
language when describing medical causation. Ultimately causation is a
question for the court, taking into account the evidence.

It is important for the court to keep in mind that all that
is required to determine these complex medical issues in the context of causation
is for the plaintiff to prove what is more likely than not.  This is what is
meant by the “but for” test: it is more likely than not, that without the tort,
the injury or medical condition would not have happened.

(emphasis added.)

[123]    
The Court of Appeal in Yoshikawa, at para. 13 affirmed that the
principles which inform the analysis of causation of physical injury apply to
causation of psychological injury.  In Yoshikawa, Mr. Justice Lambert
summarized the governing principles as follows:

14  What is meant when
Mr. Justice Taylor and Mr. Justice Spencer say that the plaintiff’s
psychological problems must have their cause in the defendant’s wrongful act?
The answer to that question is twofold. First, it must be shown that the
defendant’s unlawful act was a "cause-in-fact" of the plaintiff’s
psychological symptoms. That means that the plaintiff must establish that
"but for" the defendant’s unlawful act the plaintiff’s psychological
symptoms would not have occurred or would not have occurred in the way they
did. That is a factual question. Second, it must be shown that the defendant’s
unlawful act was a "proximate cause" that is, a legally relevant
cause-in-fact, as a matter of law, of the plaintiff’s psychological symptoms.
That is a legal question. (See Hart and Honoré, Causation in the Law 2nd ed.
c.VI, "The Law of Tort: Causing Harm"; Fleming, The Law of Torts 6th
ed. c.9, "Remoteness of Damage").

15 So if the
psychological symptoms from which the plaintiff is suffering after the accident
are symptoms from which the plaintiff would have been suffering in any event,
even if the defendant’s wrongful act had not occurred, then the plaintiff cannot
meet the cause-in-fact test and the defendant is not liable for the loss
represented by those symptoms.

16 But if the
psychological symptoms from which the plaintiff is suffering after the accident
would not have occurred if the defendant’s wrongful act had not occurred, then
the cause-in-fact test is met and consideration must be given to the question of
"proximate cause" in law.

17 …Questions of
"proximate cause", sometimes called "remoteness of damage"
are essentially questions of legal policy and not questions of strict logic.

Discussion

[124]    
As a starting point in the analysis, I observe that the human psyche is very
complex and somewhat enigmatic, which renders the Court’s task in determining
the causation of Mr. Hunt’s psychiatric malady particularly challenging.  The
Court’s observations in K.T. v. A.S., 2009 BCSC 1653 at para. 232 are
apposite in this case:

To pinpoint with any degree of
precision the impact of some factors over others in relation to the development
or aggravation of psychiatric maladies is an elusive undertaking, even for the
experts.

[125]     The
authorities establish that the Accidents need not be the only cause of
Mr. Hunt’s psychiatric condition, as long as his condition would not have
developed but for the Accidents.  Therefore, the essential question is this:
but for the defendants’ negligent acts, would Mr. Hunt have developed the
psychiatric malady he now suffers from?

[126]     There are
opinions on causation from three physicians: Dr. Levin, Dr. Vorobeychik
and Dr. Chernick.  I will address each of their opinions in turn.

[127]     Mr. Hunt’s
submissions are anchored in Dr. Levin’s opinion.  .As I mentioned earlier,
Dr. Levin opined that it is most likely that the Accidents “played a most prominent
role in initiating or triggering the onset of his psychiatric disorder and the
related disabilities.”

[128]     The key
factual underpinning of Dr. Levin’s opinion was that the Accidents triggered
the onset of Mr. Hunt’s somatic preoccupations.  Dr. Levin clearly founded
his opinion on the assumption that Mr. Hunt’s physical complaints arose after
the 2004 Accident.  This assumption was based on Mr. Hunt’s self-reports, in
which he attributes all his symptoms to the Accidents.  However, this is inaccurate
and contrary to the weight of the evidence which shows that Mr. Hunt had a
preoccupation with his health prior to the 2004 Accident.

[129]     The
evidence of Mr. Hunt’s condition before the 2004 Accident is found in Dr. Vorobeychik’s
records.  Those records demonstrate the prolificacy of medical visits Mr. Hunt
had with a plethora of health professionals.  It emerged on her cross-
examination that Mr. Hunt has always complained of a multitude of symptoms
from at least December 2002 to the date of the 2004 Accident.  The complaints
of arm problems and weakness which Mr. Hunt reported to Dr. Levin pre-dated the
2004 Accident.  Mr. Hunt had complained of memory problems in 2003.  Mr. Hunt
complained of back pain prior to the 2004 Accident.  Mr. Hunt had seven to
eight specialist referrals prior to the 2004 Accident.  Prior to the 2004
accident, Dr. Vorobeychik had prescribed Mr. Hunt medication for anxiety
and sleeping issues.  Most significantly, in my view, Mr. Hunt in his 2005 Letter
attributed a wide-range of physical symptoms and ailments as being attributable
to the unsatisfactory work conditions at Paladin for the two preceding years.  As
I mentioned earlier, in this letter, Mr. Hunt indicated that he had
acquired health problems at Paladin that “make me an invalid now.”

[130]     It emerged
during the course of Dr. Levin’s cross-examination, that in formulating his
opinion on causation, he had relied heavily on the accuracy of Mr. Hunt’s
reports.  Dr. Levin did not have all the relevant information about the
events affecting Mr. Hunt’s physical and mental health before the 2004 Accident
which I have outlined above.  In particular, when Dr. Levin prepared his
report, he had not been aware of Mr. Hunt’s 2005 Letter to
Dr. Vorobeychik in which he enumerates all his health problems as the
result of working in Paladin.

[131]     Dr. Levin
conceded, once he was confronted with Mr. Hunt’s records, that Mr. Hunt
was someone who appeared to focus on pain and somatic complaints prior to the
Accidents.  He candidly acknowledged that psychiatry is not a “black and white”
science and that he based his conclusions on his knowledge of Mr. Hunt and Mr.
Hunt’s attribution of his complaints to the Accidents.

[132]     Dr.
Levin’s opinion on causation is seriously undermined by the incomplete
disclosure made to him by Mr. Hunt and in part by him not having reviewed
Mr. Hunt’s medical records prior to the 2004 Accident.  Earlier in these
reasons, I have found that many aspects of Mr. Hunt’s evidence were not
reliable as it related to his health.   Moreover, I find his reports to Dr.
Levin as to his history and condition were not accurate.  It follows that the hypothesis
and factual underpinnings to Dr. Levin’s opinion concerning the causation
of Mr. Hunt’s psychiatric disorder have not been proved at trial.  This renders
Dr. Levin’s opinion on causation of little assistance to this Court.  In
the end, I accord it little, if any, weight.

[133]     I turn to
consider the evidence of Dr. Vorobeychik.  Dr. Vorobeychik has been Mr. Hunt’s
treating physician for over nine years.  As I mentioned earlier, it clearly
emerged on her cross-examination that prior to the 2004 Accident, Mr. Hunt had
always complained of various somatic complaints and sought numerous
specialists’ assessments.  Mr. Hunt had been reporting, on an intermittent
basis, wide-spread tenderness throughout his body since she became his doctor
in 2002.  Dr. Vorobeychik also admitted at trial that she was not
suggesting all the problems listed in her report of July 6, 2010, were caused
by the Accidents and in fact her report is a recitation of the plaintiff’s
general health.

[134]     Although
Dr. Vorobeychik does not mention it in her reports, she acknowledged in
cross-examination that Mr. Hunt’s significant psychiatric change did not come
about until September 2006 when Mr. Hunt’s family left him.  It was at
that time that she referred him for psychiatric treatment.  I do not accept the
accuracy of the statement in her report in which she describes Mr. Hunt’s marital
and work-related problems as “secondary issues.”  The evidence overwhelmingly
established that his separation from his family and termination from Paladin
were very significant life events for Mr. Hunt.  Dr. Vorobeychik also agreed
in cross-examination that his matrimonial litigation in 2009 and 2010 was a significant
stressor for Mr. Hunt.

[135]     It was Dr.
Vorobeychik’s opinion that Mr. Hunt’s “depression is most likely related to the
MVA [2004] and is compounded by the lack of visible improvement in his
symptoms”.  Given the significant concessions she made in cross-examination and
the omission in her report that the referral to Dr. Levin was precipitated by
his marital breakdown, I consider it unsafe to rely on her opinion on
causation.  Overall, the frailties in her report render it of little assistance
to the Court.

[136]     I prefer
Dr. Chernick’s opinion that neither of the Accidents were significant
psychological stressors that caused Mr. Hunt’s current psychiatric condition.  Dr. Chernick
opined that even if it were to be found that Mr. Hunt suffers from a pain
disorder, it is his opinion that it was caused by multiple psychological
stressors, including his wife leaving him, his only child refusing to speak to
him and the loss of his job, and not the motor vehicle accidents which were, in
Dr. Chernick’s view, minor psychological stressors.  His report demonstrates
that he thoroughly reviewed Mr. Hunt’s medical reports and records, including
Dr. Vorobeychik’s records which date back to December 2002.

[137]     Dr.
Chernick presented as an objective witness who was careful and fair-minded in
his testimony.  I found his evidence compelling and his opinion was not
weakened in cross-examination.  In my view, his opinion on this point harmonizes
with the preponderance of probabilities in this case.

[138]     Dr.
Chernick acknowledged that a pre-existing injury could be a contributing factor
to the development of a somatoform disorder.  However, he also clarified that the
pain that contributed to the development of a pain disorder could pre-exist the
injury to which the patient attributes his pain.  Moreover, according to Dr.
Chernick, it would be possible for an individual with obsessive-compulsive and
narcissistic traits, such as Mr. Hunt, in the face of significant psychological
stressors to develop a pain disorder in the absence of an injury.

[139]     Dr.
Chernick acknowledged that if Mr. Hunt lost his job because of the pain from
his 2004 Accident, then the 2004 Accident may have indirectly caused his
psychiatric condition.  However Mr. Hunt did not prove that he lost his job at
Paladin because of his accident-related injuries.

[140]     While
Mr. Hunt may have reported to Dr. Levin that his chronic pain from the
2004 Accident contributed to his marital breakdown Mr. Hunt did not testify on
this point at trial.

[141]     In any
case, the evidence at trial falls short of establishing that either Mr. Hunt’s
termination from Paladin or his marital separation was caused directly or
indirectly because of the injuries he sustained in the 2004 Accident.

[142]     The
evidence shows that Mr. Hunt attributes his current symptoms to the injuries he
sustained in the Accidents.  This is illustrated by Mr. Hunt’s referencing
his ICBC claim numbers on all correspondence to his medical advisors.  He
acknowledged in cross-examination that he blames all his problems on the 2004
Accident.  On my best assessment, he has genuinely convinced himself that this
is the case.  However, this is not sufficient to establish a connection in law
between the injuries he sustained in the Accidents and his current condition.

[143]     Considering
the totality of the evidence, I reach the following conclusions regarding
Mr. Hunt’s current psychiatric condition.

[144]     Mr. Hunt
was initially referred to Dr. Levin in October 2006, following his marital
separation.  At the time, Mr. Hunt was impaired by his anxiety and
depressive symptoms.  Dr. Levin diagnosed Mr. Hunt “overall” with an adjustment
disorder.  In his first report, Dr. Levin also referred to Mr. Hunt’s
tendencies for somatization and the development of a pain disorder as a
psychiatric condition. However, Mr. Hunt’s condition improved under Dr.
Levin’s care and he was eventually able to return to employment in May 2007.

[145]     The
evidence shows that Mr. Hunt’s psychiatric condition had deteriorated when
he was re-referred to Dr. Levin in 2010.  Mr. Hunt had not seen his son
since September 2006 but had maintained some telephone communication with him. 
His son terminated all communications in October 2010.  Mr. Hunt was also
embroiled in matrimonial litigation with his wife in 2009 and 2010 which was
extremely stressful for him.   Mr. Hunt conceded in cross-examination that he
resumed treatment with Dr. Levin in 2010 because of the distress associated
with his matrimonial proceedings and the lack of contact with his son.

[146]     It was in
2010 that Dr. Levin diagnosed Mr. Hunt with a debilitating somatization
disorder.  This was some six years after the 2004 Accident and three years
after the 2007 Accident. While I recognize the dangers inherent in
applying simple temporal reasoning when determining legal causation-
particularly when assessing psychological injury- I am not persuaded on
the balance of probabilities that it was the injuries Mr. Hunt sustained in the
Accidents that have caused his current constellation of psychological problems.

[147]     On the
preponderance of the evidence, including Mr. Hunt’s circumstances prior to
and after the Accidents, I find that the primary source of Mr. Hunt’s emotional
distress was his marital separation and the ensuing litigation in 2009 and 2010,
the lack of contact with his son and his termination from Paladin employment
which Mr. Hunt found so stressful that he had to be taken to the hospital. 
Dr. Levin conceded in cross-examination that these were major stressors for Mr.
Hunt.  Mr. Hunt would have had to contend with these devastating stressors
absent the Accidents.

[148]     As I have
outlined earlier in these reasons, the evidence clearly demonstrates that Mr.
Hunt’s preoccupation with somatic complaints pre-dated the 2004 Accident.  In
January 2005, Mr. Hunt maintained that it was his working conditions at Paladin
for the preceding two years that had rendered him “an invalid.”

[149]     I have
concluded that, on the totality of the evidence, Mr. Hunt has not satisfied the
“but for” test mandated by the authorities.  On balance, I find that, in light
of Mr. Hunt’s significant stressors and preoccupation with somatic complaints, it
is just as likely that, absent the Accidents, Mr. Hunt would have developed his
somatization psychiatric problems.  I cannot find that the Accidents
contributed to the development of his psychiatric malady beyond the de
minimus range.  Therefore, I cannot find the causal connection that the law
requires between Mr. Hunt’s psychiatric problems and the Accidents.

[150]     In summary
on this issue, I am not persuaded that Mr. Hunt has discharged his burden of
proof.  In reaching this conclusion, I have considered the entire body of
evidence and in my view it best harmonizes with the preponderance of
probabilities.

[151]     In view of
my findings, I need not consider the application of the principles of “proximate
cause” which were articulated by the Court in Yoshikawa.

Soft Tissue Injuries

[152]     I conclude,
and indeed it is uncontroversial, that Mr. Hunt sustained soft tissue injuries
in the 2004 and 2007 Accidents.  I summarize below my findings as to those
injuries.

[153]     In view of
my findings on the reliability of Mr. Hunt’s evidence, I have placed the most
weight upon the medical evidence and upon Mr. Hunt’s statements to his doctors wherein
he reported some improvement in his condition. I find those statements accurately
reflected his symptoms at the time.

[154]     On the
totality of the evidence, I conclude that Mr. Hunt sustained soft tissue
injuries primarily to his mid-back in the 2004 Accident.  Those injuries were
severe enough that he was disabled from working for three months.

[155]     After the 2004
Accident, Mr. Hunt underwent conventional treatment for his injuries.  He
attended chiropractic, massage and acupuncture treatments which he found
beneficial.  In April 2005, Mr. Hunt reported to Dr. Vorobeychik that his back
pain was better.  By June 2005, he was reporting occasional back pain to
Dr. Vorobeychik and in July 2005, Dr. Vorobeychik sent him for massage
treatments which he found helpful.  In September 2005, he had chiropractic
treatments for his mid-back.

[156]     By January
2006, Mr. Hunt’s condition had improved.  At his examination for discovery, he
admitted that by January 2006 his condition was “much better.”  Mr. Hunt
was able to work as a geologist from March to June 2006.  While I am not
persuaded that Mr. Hunt’s back pain was the significant limitation he contends,
I accept that he had episodic aggravations of his back pain, particularly
when lifting the core boxes.  In June 2006, he reported to Dr. Vorobeychik that
the acupuncture treatments he underwent on her recommendation alleviated his back
symptoms.  In November 2006, he reported to Dr. Levin that his back pain
had improved.

[157]     In
summary, I find that Mr. Hunt gradually recovered from his soft tissue injuries
and by March 2006 he was left with residual symptoms of occasional back discomfort
and episodic flaring pain.

[158]     The
evidence supports a finding that the 2007 Accident was relatively minor but
resulted in some exacerbation of Mr. Hunt’s soft tissue injuries, primarily in
the mid-thoracic region of his back.  On his own evidence, the 2004 Accident
was the primary cause of his injuries and not the 2007 Accident.  Mr. Hunt was able
to resume employment at Coast Mountain in February 2008.  In April 2008, he
reported to Dr. Levin that he continued to experience occasional back pain but
his mood and energy level had improved.

[159]     On the
totality of the evidence, I find that any residual symptoms from the Accidents
were largely resolved by February 2008, but that through 2008 Mr. Hunt
continued to experience some episodic back discomfort and occasional flaring
pain.

[160]      In short,
Mr. Hunt’s injuries are consonant with moderate soft tissue injuries to his
back which had substantially resolved by 2008.  On balance, the evidence
supports a finding that Mr. Hunt would have experienced the manifestation of
his soft tissue injuries with greater intensity because of his pre-existing personality
traits and his pre-occupation with somatic complaints.

Fibromyalgia

[161]     In my view,
the totality of the evidence falls short of establishing on a balance of
probabilities that Mr. Hunt suffers from fibromyalgia.

[162]     Dr. O’
Connor, a well-qualified physiatrist who saw Mr. Hunt in November 2008,
opined that Mr. Hunt “does not meet the qualifications for fibromyalgia.” 
Dr. O’ Connor was not required to attend for cross-examination.

[163]     Dr. Luongo
noted that Mr. Hunt had tender points but he did not provide any elaboration on
the significance, if any, of such a finding.  He observed that Mr. Hunt displayed
abnormal pain behaviour and an exaggerated pain response.  Dr. Luongo’s
report is of little assistance to Mr. Hunt in proving his assertion that he
suffers from fibromyalgia.

[164]     I consider
it unsafe to rely on Dr. Venter’s opinion.  I found him on occasion to be unresponsive
in cross-examination and he displayed a somewhat compromised objectivity in his
diagnosis of fibromyalgia.  Most significantly, the Court was left with the
impression that he did not conduct a thorough examination of Mr. Hunt and that
he based his diagnosis on an inaccurate and incomplete medical history which was
related to him by Mr. Hunt.

MITIGATION

[165]     In view of
my findings on causation, I need only address mitigation as it relates to Mr.
Hunt’s soft tissue injuries.

[166]     The
defence submits that Mr. Hunt’s damages should be reduced because of his
failure to mitigate his losses.  In particular, they point to the fact that Mr. Hunt
has not engaged in a weight loss or exercise program as recommended by the various
physicians who have assessed him.

[167]    
It is well settled on the authorities that a plaintiff in a personal
injury action has a positive duty to mitigate by taking all reasonable measures
to avoid all or a portion of his or her loss.  In order to succeed, the
defendant must prove that the plaintiff acted unreasonably in eschewing the
recommended treatment for his or her injuries and the extent, if any, to which
the plaintiff’s damages would have been reduced, had he or she acted reasonably:
Chiu v. Chiu, 2002 BCCA 618 at para. 57.

[168]     In Gregory
v. Insurance Corporation of British Columbia, 2011 BCCA 144, the Court
describes the mitigation test as a subjective/objective one; the defendant must
establish that a reasonable patient in the shoes of the plaintiff, having all the
information at hand that the plaintiff possessed, ought reasonably to have
undergone the recommended treatment.  The law requires that a plaintiff make
“contextually reasonable and sincere efforts” to avoid all or a portion of his
or her loss: Gilbert v. Bottle, 2011 BCSC 1389 at para. 203.  The Court’s
assessment of whether a particular plaintiff acted reasonably turns on all of
the relevant circumstances.  For example, in Gilbert, the Court observed
that a plaintiff who has struggled with life-long obesity may not be expected
to lose weight even though weight loss would assist recovery.  See also Delgiglio
v. British Columbia (Public Safety and Solicitor General), 2012 BCSC 480 at
paras. 87-89.

[169]     The Court in
Gregory emphasized at para. 53 that the defendant must prove “the
extent, if any, to which the plaintiff’s damages would have been reduced” by
the recommended treatment.

[170]     Having
reviewed the legal principles, I now turn to the consideration of the evidence.

[171]     Firstly,
Mr. Hunt, from his perspective, has diligently pursued medical treatment
for the soft tissue injuries he sustained in the Accidents.  He regularly sought
assistance from Dr. Vorobeychik.  On her recommendation, he attended
physiotherapy, massage and acupuncture treatments.  He took the medication she prescribed.
He tried swimming but discontinued that activity because he found that it
aggravated his symptoms.  He maintains that he has followed a routine for
exercising at home.  His main form of exercise was and continues to be walking.
While I cannot find that Mr. Hunt struggled with life-long obesity, the medical
evidence shows that he was significantly overweight prior to the 2004 Accident.
He believes his weight is a “complicated” issue.

[172]     I am not
persuaded that a plaintiff in Mr. Hunt’s shoes, with his particular psychological
issues and perceptions and pre-accident history ought reasonably to be expected
to have undertaken a structured weight loss and exercise program.  Moreover,
the evidence falls short of establishing that had Mr. Hunt undertaken such programs,
the symptoms from his soft tissue injuries would have improved or resolved any
sooner than I have found those injuries did in fact resolve.

[173]     I cannot
conclude, in the circumstances, that the defence has met the threshold mandated
in the authorities for reducing Mr. Hunt’s damage award.

DAMAGES

[174]     I next
address Mr. Hunt’s claim for damages under the following headings:

(a)       non-pecuniary
damages;

(b)       loss
of past earning capacity and loss of future earning capacity; and

(c)       special
damages.

Non-Pecuniary Damages

[175]     Mr. Hunt
seeks an award of $100,000 for non-pecuniary damages.  The defence submits that
non-pecuniary damages should be assessed in the range of $25,000 to $40,000.

[176]     Non-pecuniary
damages are intended to compensate a plaintiff’s pain, suffering, and loss of
enjoyment of life.  The award should compensate a plaintiff for those damages
he has suffered up to the date of the trial and for those he will suffer in the
future.  The essential principle derived from the authorities is that an award
for non-pecuniary damages must be fair and reasonable to both parties and
should be measured by the adverse impact of the particular injuries on the
individual plaintiff: Hmaied v. Wilkinson, 2010 BCSC 1074 at para. 55.

[177]     While
fairness is assessed by reference to awards made in comparable cases, it is
impossible to develop a “tariff”; each case is decided on its own unique facts:
Lindal v. Lindal, [1981] 2 S.C.R. 629 at 637; Kuskis v. Hon Tin,
2008 BCSC 862 at para. 136.

[178]     The B.C.
Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34 at para. 46
enumerated the factors to be considered in awarding non-pecuniary damages.  The
non-exhaustive list includes: the age of the plaintiff; the nature of the
injury; the severity and duration of pain; the degree of disability; emotional
suffering; the impairment of family, marital, and social relationships;
impairment of physical and mental abilities; loss of lifestyle and the
plaintiff’s stoicism.

[179]    
I have concluded that the soft tissue injuries Mr. Hunt
sustained in the Accidents have caused him pain, suffering and loss of
enjoyment of life.  Earlier in these reasons, I have set out my findings
on the progression of his symptoms

[180]     In
accordance with Athey, at para. 36, I must consider Mr. Hunt’s
pre-existing condition and whether there was a “measurable risk” that any
pre-existing condition would have detrimentally affected him regardless of the
defendants’ negligence.  This is pertinent because the defendants need not
restore Mr. Hunt to a position better than his original position.

[181]    
There is no cogent evidence that Mr. Hunt would have experienced
the symptoms I have described in the preceding section-with the same frequency
and intensity- absent the soft tissue injuries he sustained in the Accidents.  Accordingly,
there are no grounds on which to reduce the award for non-pecuniary damages.

[182]     In the
2004 Accident, Mr. Hunt sustained moderate soft tissue injuries to his
back, which were exacerbated by the 2007 Accident.  Although his injuries from
the Accidents had resolved for the most part by early 2008, Mr. Hunt continued
to experience occasional discomfort and episodic flare-ups through 2008.

[183]     I find
that his injuries took a toll on Mr. Hunt and negatively affected the quality
and enjoyment of his life.  He suffered from symptoms which varied in frequency
and intensity for some four years.

[184]     I have
reviewed all of the authorities provided by both counsel.  Although the cases
are instructive, I do not propose to review them in detail as they only
provide general guidelines.  In considering Mr. Hunt’s unique
circumstances, I conclude a fair and reasonable award for non-pecuniary damages
is $40,000.

Loss of Past Earning Capacity and Loss of Future
Earning Capacity

[185]     Counsel
for Mr. Hunt submits that Mr. Hunt is unemployable.  He seeks compensation
of $131,709 net for loss of past earning capacity and $315,772 for loss of
future earning capacity.

[186]     The
defence asserts that the plaintiff is entitled to compensation for the loss of
three months’ wages following the 2004 Accident and that there should be no
award of past wage loss for the 2007 Accident.  They argue that Mr. Hunt is not
entitled to any compensation for loss of future earning capacity.

[187]     In view of
my finding that Mr. Hunt’s current psychiatric condition was not caused by the
Accidents, my analysis of Mr. Hunt’s claim for the loss of earning capacity is
limited to any loss he sustained as a result of his soft tissue injuries.

Legal Framework

[188]     An award
for future loss of earning capacity represents compensation for a pecuniary
loss: Gregory at para. 32.  The legal principle that governs this
assessment for loss of earning capacity is that, insofar as is possible, the
plaintiff should be put in the position he or she would have been in but for
the injuries caused by the defendants’ negligence: Lines v. W & D
Logging Co. Ltd., 2009 BCCA 106 at para. 185.  Compensation must be
made for the loss of earning capacity and not for the loss of earnings: Andrews
v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; X. v. Y, 2011
BCSC 944 at para. 188.

[189]     The recent
jurisprudence of the Court of Appeal has affirmed that the plaintiff must
demonstrate both an impairment to his or her earning capacity, and that there
is a real and substantial possibility that the diminishment in earning capacity
will result in a pecuniary loss.  If the plaintiff discharges that requirement,
he or she may prove the quantification of that loss of earning capacity either
on an earnings approach or a “capital asset” approach: Perren v. Lalari,
2010 BCCA 140 at para. 32.  Regardless of the approach, the Court must
endeavour to quantify the financial harm accruing to the plaintiff over the
course of his or her working career: Pett v. Pett, 2009 BCCA 232 at
para. 19; X. v. Y at para. 183.

[190]     As
enumerated by the Court in Falati v. Smith, 2010 BCSC 465 at
para. 41, aff’d 2011 BCCA 45, the principles which inform the assessment
of loss of earning capacity include the following:

(i)       The
standard of proof in relation to hypothetical or future events is simple
probability, not the balance of probabilities: Reilly v. Lynn, 2003
BCCA 49 at para. 101.  Hypothetical events are to be given weight
according to their relative likelihood: Athey at para. 27.

(ii)      The
Court must make allowances for the possibility that the assumptions upon which
an award is based may prove to be wrong: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.). 
Evidence which supports a contingency must show a “realistic as opposed to a
speculative possibility”: Graham v. Rourke (1990), 75 O.R. (2d) 622 at
636 (C.A.).

(iii)      The
Court must assess damages for loss of earning capacity and not calculate them
mathematically: Mulholland (Guardian ad litem of) v. Riley Estate
(1995), 12 B.C.L.R. (3d) 248 at para. 43.  The assessment is based on the
evidence, taking into account all positive and negative contingencies.  The
overall fairness and reasonableness of the award must be considered: Rosvold
v. Dunlop, 2001 BCCA 1 at para. 11.

[191]     Although a
claim for “past loss of income” is often characterized as a separate head of
damages, it is properly characterized as a component of loss of earning
capacity: Falati at para. 39.  It is a claim for the loss of value
of the work that an injured plaintiff would have performed but was unable to
perform because of the injury: Rowe v. Bobell Express Ltd., 2005 BCCA
141 at para. 30; Bradley at paras. 31-32; X. v. Y at
para. 185.

[192]    
This Court in Falati at para. 40, summarized the pertinent
legal principles governing the assessment of post-accident, pre-trial loss of
earning capacity and concluded that:

[40]      … the determination of a plaintiff’s prospective
post-accident, pre-trial losses can involve considering many of the same
contingencies as govern the assessment of a loss of future earning capacity.
… As stated by Rowles J.A. in Smith v. Knudsen, 2004 BCCA 613, at
para. 29,

“What would have happened in the past but for the injury is
no more ‘knowable’ than what will happen in the future and therefore it is
appropriate to assess the likelihood of hypothetical and future events rather
than applying the balance of probabilities test that is applied with respect to
past actual events.”

Loss of Earning Capacity to the Date of Trial

[193]     The
evidence shows that after the 2004 Accident, the plaintiff was ready and able
to return to work in January 2005.  Within a few days, he was terminated by
Paladin.  He went on medical unemployment insurance after what he described as
an “interrogation” at Paladin.  On his own evidence, his subsequent medical
leave was attributable to the stress reaction to his termination.

[194]     On the
totality of the evidence, I have concluded that Mr. Hunt has proved that the
injuries he sustained in the 2004 Accident have impaired his earning capacity.  He
has proved that but for his injuries he would have continued to work at Paladin
until his termination in January 2005.  He is entitled to be compensated for
those three months of wages he lost at Paladin.  On my calculations, that
equates to $5,200 in gross income loss.

[195]     Mr. Hunt
acknowledged in cross- examination that if he had not been terminated, he would
have been capable of continuing to work at Paladin after January 2005.  When
his medical and regular employment insurance terminated in 2005, Mr. Hunt
continued his job search but he was unable to secure employment.  On the
evidence, Mr. Hunt’s unemployment from January 2005 through to March 2006, when
he obtained work at Gibraltar cannot be attributed to the 2004 Accident.

[196]     In March
2006, Mr. Hunt obtained geology-related employment with Gibraltar.  The
evidence falls short of establishing that the termination of his employment in
June 2006 with Gibraltar was related to the injuries he sustained in the 2004
Accident.  On his own admission, Mr. Hunt does not know why his contract
with Gibraltar was not extended.

[197]     According
to Mr. Hunt, there were no geology-related jobs available in the summer of 2006
after his job with Gibraltar terminated.  The evidence shows that in the period
commencing in September 2006, Mr. Hunt had a number of potential job
opportunities in the geology field.  Mr. Hunt conceded on
cross-examination that it was the distress from his marital situation that
rendered him incapable of working in the period from September 2006 to May
2007.  In May 2007, Mr. Hunt secured employment as a field geologist with Coast
Mountain.  He worked a four-week on and two-week off rotation.

[198]     After the
November 2007 Accident, Mr. Hunt took three months off work and he resumed
his employment with Coast Mountain on February 29, 2008.  However,
Dr. Vorobeychik’s report dated December 15, 2007, indicates that Mr. Hunt
was capable of working as of December 15, 2007.  Moreover, in his consultation
with Dr. Levin, one month after the 2007 Accident, he reported that his
energy and motivation had improved and that he had discontinued all medication
except for his Clonazepam, which he had taken since before the Accidents.

[199]     In all the
circumstances, I find that Mr. Hunt is entitled to compensation for the
loss of two weeks’ wages following the 2007 Accident.  At $400 a day, I award
him $5,600.

[200]     Mr. Hunt
worked at Coast Mountain from February 28, 2008, until October 3, 2008.  It is
uncontroversial that he was laid off from Coast Mountain in October 2008 as a
result of economic conditions.

[201]     Mr. Hunt
went on disability benefits for his Ménière’s disease in October 2009.

[202]     The
evidence falls short of establishing that there was a real and substantial possibility
that from October 2008 to the date of trial Mr. Hunt would have been employed
absent the Accidents.

[203]     In summary
on this issue, I conclude the Accidents have resulted in a total past loss
of income to Mr. Hunt for the period from the date of the Accidents to trial of
$10,800.  As Mr. Hunt is only entitled to recover his net income losses,
I direct counsel to carry out the necessary calculations in order to
determine the appropriate net loss.  Counsel have liberty to apply if they are
unable to agree as to this amount.

Loss of Future Earning Capacity

[204]     The
essential task of this Court is to compare the likely future of Mr. Hunt’s working
life if the Accidents had not happened with the plaintiff’s likely future
working life after the Accidents: Gregory at para. 32; Rosvold at
para. 11; X. v. Y at para 188.

[205]    
This claim raises two essential questions:

(a)      has Mr.
Hunt’s earning capacity been impaired by his injuries and, if so;

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

[206]     The
starting point in the analysis is whether Mr. Hunt has demonstrated any
impairment of his earning capacity because of the injuries he sustained in the
Accidents.  Mr. Hunt contends that he cannot work as a geologist because of his
pain and physical limitations, in particular his low tolerance for prolonged
walking.

[207]     Given my
findings that his soft tissue injuries had substantially resolved by 2008 I
conclude that Mr. Hunt is not disabled from working on account of those
injuries. In any case  his return to work as a geologist
after both Accidents negates any claim that his soft tissue injuries caused a
permanent impairment of his earning capacity.

[208]     For
completeness I address the expert evidence adduced by Mr. Hunt on income loss.

[209]     Mr. Hunt
relies on the report dated November 3, 2011, of Mr. Nordin, a vocational
rehabilitation consultant.  Mr. Nordin opined that, currently, Mr. Hunt is
competitively unemployable.  Mr. Nordin concluded that the “sequelae of the
October 2004 and November 2007 [A]ccidents have prevented Mr. Hunt from working
as a field geologist, absent provision of the kinds of accommodations he
describes for his time with Coast Mountain Geology.”  I note parenthetically
that the evidence does not show the accommodation, if any, that was made for
Mr. Hunt at Coast Mountain.

[210]     Mr. Nordin
did not conduct any vocational assessments and his report is primarily based upon
Mr. Hunt’s self-reports and Dr. Vorobeychik’s and Dr. Levin’s opinions.

[211]      In so far
as his reliance on Dr. Levin’s opinion that Mr. Hunt is disabled from
working because of his psychiatric illness I have found that any such
disability was not caused by the Accidents.  Moreover, the key factual
underpinnings to Mr. Nordin’s report were based on Mr. Hunt’s self-reports
regarding the sequelae of the Accidents and were not proven at trial.

[212]      In the
result, I have given no weight to Mr. Nordin’s opinion, as I found it to have
an insufficient evidentiary foundation.

[213]     Mr.
Taunton, an economist, prepared a report on behalf of Mr. Hunt, calculating his
past and future income loss.  He factored in various negative contingencies,
including non-participation in the labour force and premature death; he
provided comparative illustrations in his report.  The key assumptions in Mr. Taunton’s
report are that, absent the 2004 and 2007 Accidents, Mr. Hunt would have been
employed as a security guard through 2005 and as a geological technologist
doing field work in Canada from January 1, 2006 onwards.

[214]     As with
Mr. Nordin’s report, the assumptions in Mr. Taunton’s report have not been
proven, which fundamentally undermines the hypothesis of his report.

[215]     It follows
that neither his nor Mr. Nordin’s report is of any assistance to the Court.

[216]     It is also
crucial to observe the stubborn fact that, on his own evidence Mr. Hunt is
currently on disability benefits because of his Ménière’s disease.  Dr. Levin
has opined that Mr. Hunt is disabled from working because of his psychiatric
condition which I have concluded was not caused by the Accidents.

[217]     Mr. Hunt
is only entitled to be restored to his original pre-accident position.  On the
totality of the evidence, Mr. Hunt has not proved that, absent the defendants’
negligence, and given his unrelated medical conditions, there is a real and
substantial possibility that, he would nonetheless have participated in the
work force in the future.

[218]     In summary
on this issue, I am not persuaded that there is a real and substantial
possibility that if Mr. Hunt had not been injured in the Accidents he would be
working now or that his future earnings would have been higher than they now will
be. I therefore cannot conclude that there is a real and substantial
possibility that Mr. Hunt will suffer a future pecuniary loss because of
the Accidents.

[219]     In the
result, Mr. Hunt is not entitled to any compensation for future loss of
earning capacity.

Special Damages

[220]     The
plaintiff submits he is entitled to special damages of $3,000.  He has
submitted invoices for various medication, chiropractic, physiotherapy and
acupuncture treatments which invoices a total of $580.07.  He has also
submitted receipts for inversion tables and home treatment devices totalling
$563.98.  Mr. Hunt’s uncontradicted evidence is that the equipment was
approved by his doctors.  He testified that he has misplaced other invoices for
similar equipment which is shown in the photographs.  He estimates his total
expenditures are in the range of $3,000.

[221]     It is well
established that an injured person is entitled to recover the reasonable
out-of-pocket expenses they incurred as a result of an accident.  This is
grounded in the fundamental governing principle that an injured person is to be
restored to the position he or she would have been in had the accident not
occurred: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.),
aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.) at 78; X. v. Y. at para.
281.

[222]     I find
that the expenses Mr. Hunt incurred for medication and acupuncture,
chiropractor and physiotherapy treatments are reasonable.  He has produced
receipts which support a claim of $1,144.05.  There is no evidentiary
foundation upon which I can grant anything more than a nominal increase over
the amount supported by documentation.  In all the circumstances, I award Mr. Hunt
$2,000.

[223]     Insofar as
the injuries sustained in the Accidents, Mr. Hunt has not proved that there is
a real and substantial possibility that he will incur any future costs that are
medically justified and reasonable.

CONCLUSION

[224]    
The plaintiff’s damages are assessed at $52,800 consisting of the
following:

COSTS

[225]    
Mr. Hunt is entitled to his costs at Scale B unless there are any
pertinent circumstances that should be brought to the Court’s attention.

“Dardi J.”