IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121126

Docket: M093166

Registry:
Vancouver

Between:

Tomislav Peso

Plaintiff

And

Matthew Hollaway

Defendant

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice Wong

Reasons for Judgment

INTRODUCTION

[1]            
This action arises out of a motor vehicle
collision that occurred on July 2, 2007 on a 104^th Avenue, in
Surrey.

[2]            
Liability of the collision is disputed but the
Defendant failed to testify on his own behalf. The Plaintiff Mr. Peso and his
friend, Mr. Gardiner both testified that while their vehicle was stopped, the
Defendant backed into them. The Defendant is clearly fully at fault.

[3]            
The Plaintiff, Tom Peso, was born on January 2,
1986. Mr. Peso, now 26 years old, married his wife Tracy Peso in July of this
year. Mr. Peso currently has no dependants but he and his wife would like two
or three children in the near future. They are currently looking for a house in
the Coquitlam area. At the time of the collision, Mr. Peso worked for Home
Depot. He began working there in 2004 as a sales representative. He suffered a
back injury at work in February, 2007 when a fence panel fell on him. He
finished his shift, did not miss any work and did not make a worker’s
compensation claim. Mr. Peso did seek medical advice regarding this injury in
May, 2007 but by the time of the collision he was participating in his usual
sports activities.

[4]            
Over the next couple of days after the collision
Mr. Peso developed sharp pain in his lower back and left leg. He was never able
to recover sufficiently to return to Home Depot. In the fall of 2007, Mr. Peso
began studying at BCIT to become an electrician. He was hired as a
“pre-apprentice” at Mott Electric in March 2008 where he continues to the
present.

[5]            
On December 19, 2008 Mr. Peso underwent an L4-5
discectomy. The surgery helped his symptoms but has not brought complete
relief. The prognosis for the future is guarded.

[6]            
Mr. Peso claims damages for:

a.    
Non pecuniary damages;

b.    
Past loss of income;

c.     
Future loss of earning capacity;

d.    
Special damages; and

e.     Future cost of care.

[7]            
The Third Party Insurance Corporation of British
Columbia’s position is that Mr. Peso was suffering significant symptoms shortly
before the collision. It submits that what occurred following the collision was
a minor aggravation of a continuous disease process which was already
progressing. This argument is based on the pre-collision reference in the
clinical records to his back pain as being severe. The Third Party says this is
a “crumbling skull” case; The Plaintiff says this is a “thin skull” case of
tolerable episodic pain exacerbated by the collision into one of chronic pain.

[8]            
Which scenario is more likely? I have concluded
that it is the latter. I have had the benefit of extensive written submissions
provided by Counsel. I prefer plaintiff counsel’s analysis and adopt much of it
as apposite to my following reasons.

THE BACKGROUND

[9]            
The collision

[10]        
Mr. Peso was returning from a July to weekend in
Osoyoos with his friend, Warren Gardiner. It was about 4:30 p.m. To avoid heavy
highway traffic, Mr. Peso exited Highway 1. While westbound on 104 Avenue Mr.
Peso came across two other motorists in an altercation. He stopped and was
about to provide assistance when the Defendant reversed his vehicle and struck
Mr. Peso’s vehicle, a 1997 Jeep Wrangler. In discovery, the Defendant admitted
that he had taken industrial fans from a nearby mill. The mill owner happened
to drive by as the Defendant was leaving and cut the Defendant off. This
resulted in an altercation witnessed by Mr. Peso. The Defendant was convicted
of theft under $5,000.

[11]        
Mr. Peso’s vehicle sustained approximately
$1,500. Photographs of the Plaintiff’s vehicle show a long scratch on the hood,
presumably from the fans. Mr. Peso and Mr. Gardiner both testified that contact
between the vehicles was to the bumper and there was a small dent as a result.

[12]        
The Defendant was driving a Ford Ranger pickup.
It did not sustain any apparent damage.

[13]        
Ms. Peso was wearing his seatbelt. The driver’s
seat head rest formed part of the seat and was not adjustable. There is no
evidence of contributory negligence.

[14]        
In light of the Defendant’s criminal act resulting
in this accident, ICBC chose to be joined as a Third Party. Liability was not
conceded but the evidence overwhelmingly established fault and I so find.

INJURIES

[15]        
Mr. Peso did not experience immediate symptoms.
He was dazed and in shock from the impact but otherwise felt well. He did not
seek medical treatment on the day of the collision.

[16]        
However, over the course of the next day or two,
Mr. Peso experienced increasing symptoms in his low back. Unfortunately, time
proved that Mr. Peso sustained a significant low back injury in the collision.
Symptoms included pain that radiated down his left leg. Ultimately, this
problem required surgical intervention.

ANALYSIS

[17]        
Dr. Etela Neumann has been Mr. Peso’s family physician since September,
2000. She is the best placed medical expert to comment on Mr. Peso’s medical
condition before the collision and she has had the most time to monitor Mr.
Peso since the collision occurred. According to Dr. Neumann:

Tom Peso suffered a Grade III whiplash injury to his lower
back on July 2, 2007. As a result of this injury he required surgical
intervention in the form of L4/L5 laminectomy and left L5 nerve root
decompression. His surgeon, Dr. John Street opined that he would not need the
surgery, despite his pre-existing lower back problem, and that the injury he
suffered in the above mentioned car accident was a significant, if not a sole
reason to the surgical intervention. Tom lost time from work in excess of one
year, he had to give up most of his leisure and sports activities and he is
left with permanent partial disability related to his lumbar spine.

His prognosis is very guarded. He will require ongoing
interventional non surgical therapy and he is at a high risk of requiring
lumbar spine surgery in the future.

[18]        
As a family physician, Dr. Neumann lacks the expertise of Drs. Street
and Werry. However, she is the only physician with knowledge of Mr. Peso of
over 12 years. She noted only one visit for back pain in 2004 and then no
further visits for this issue were recorded until May, 2007. She has reported
that the collision was a material if not sole cause of the surgery and that as
a result Mr. Peso is left with a permanent partial disability and guarded
prognosis. Dr. Neumann was not cross examined on these conclusions.

[19]        
Dr. John Street is an orthopedic surgeon. He performed the surgery on
Mr. Peso’s back on December 19, 2008. Dr. Street reports that the surgery was
triggered by the collision.

Opinion on Causation, Degree of Disability and Impairment

I would say that Mr. Peso is moderately severely disabled.
This disability is likely to be long term.

Prior to the motor vehicle accident, Mr. Peso had suffered
intermittent and mild back and left leg symptoms. His symptoms had followed a
course that would be anticipated for the natural history of a disc herniation
in a young man. However, following the motor vehicle accident his symptoms
followed a pattern not anticipated by natural history alone. After the motor
vehicle accident he missed work, he was unable to partake in any recreational
activities, he suffered pain on severity of 10/10 in contrast with the 2/10
pain he had prior to the motor vehicle accident, and he ultimately required
surgical decompression to achieve some resolution of his leg pain.

This severity of intensity of pain and the failure of the
symptoms to resolve with nonsurgical treatment is not typical of disc
herniations in patients this age. Over 90% of people with sciatica will have
their leg symptoms resolve without any requirement for surgical intervention over
a period of time ranging from six weeks to six months.

It is my opinion that Mr. Peso would not likely have required
surgery were it not for the motor vehicle accident. Based on his pain behavior
prior to the accident, and to the anticipated natural history of sciatica, I do
not believe that he would have required surgery in any event. I believe that
the requirement for surgery was precipitated by the aggravation of a
pre-existing condition consequent to the motor vehicle accident.

It is my opinion that Mr. Peso will likely require both
further surgical and nonsurgical interventional treatments in the future. It is
my opinion that the risk requiring surgery in the future is probably somewhere
between 40 and 50% and that this risk is significantly higher than normal. It
is my opinion that this increased risk of requirement of surgery in the future
is as a direct consequence of the injury Mr. Peso suffered at the motor vehicle
accident.

It is my opinion that Mr. Peso
will continue to require nonsurgical treatment in the first instance and likely
surgical treatment sometime in the future. He is likely to miss a significant
amount of work, both due to recurrence of symptoms and the time required to
recover from various therapies that he will undergo.

[20]        
Dr. Street is an experienced spine surgeon. He has preformed countless
procedures similar to Mr. Peso’s surgery and he is conversant with the medical
literature on the issues applicable to this matter. His opinion is based on the
following assumptions:

1.         Mr. Peso
had a pre-existing disc herniation at L4-5 that produced mild intermittent
symptoms before the collision;

2.         Until
the collision Mr. Peso did not miss time from work due to any pre-existing
symptoms;

3.         Until
the collision Mr. Peso was able to continue with his usual activities. On the
weekend before the collision he went waterskiing, tubing and played volleyball.
He also drove from the Lower Mainland to Osoyoos and back without breaks;

4.         The
physical findings before the collision were modest or equivocal;

5.         Mr. Peso testified that his
pain before the collision was 2-4 out of 10. Dr. Street reported an estimate of
2-3/10 and not of significance. After the collision Mr. Peso’s pain became
8-10/10. Mr. Peso said he had never experience pain before the collision like
what developed afterwards.

[21]        
Dr. Street concludes that but for the collision, Mr. Peso’s natural
history of back pain would have continued, but the severe pain would not have
developed and there would have been no need for surgery. He noted that
according to studies, 90% of patients with sciatica experience resolution of
their symptoms within 6 months. By the time Dr. Werry, the Third Party’s
expert, examined Mr. Peso, 8 months had passed and there were still positive
neurological findings.

[22]        
According to Dr. Street, the collision set Mr. Peso on a different
course. He faces permanent problems and restrictions as a direct result of the
collision. Given the surgery, Mr. Peso is at increased risk of further surgery.
Studies put the increased risk at 37% within 10 years. However, young males are
particularly at risk of requiring further surgery. The risk of further surgery
is cumulative; as time passes the greater the risk additional surgery will be
required. The studies do not address the risk beyond 10 years. In light of
this, Dr. Street arrives at an overall increased risk of 40-50% for Mr. Peso.
Dr. Street was not seriously challenged on his evidence on this point and Dr.
Werry offered no opinion on the magnitude of the risk, although he acknowledged
that additional surgery was possible.

[23]        
This was the first time Dr. Street testified at trial. Under cross
examination it became apparent that Dr. Street had not produced his entire
file, and that some of the information contained in Dr. Street’s report was
based on inference, not on direct information from Mr. Peso.

[24]        
Dr. Street’s approach was unfortunate. However, Plaintiff’s counsel
submitted that does not detract from the strength of his opinions. Pain scale
values, pre-collision function, and post collision function are all matters of
opinion. Those assumptions on which the expert must base his opinion. The
assumptions must be independently proven by the Plaintiff. It is irrelevant
whether the facts collected are from the Plaintiff directly, the records, or
from assumptions provided by instructing counsel. Dr. Street understood that
before the collision, Mr. Peso was functioning well, not missing work, and able
to engage in sports. He understood Mr. Peso had some pain but that the symptoms
were mild (He rated the pain as 2-3/10). He understood that Mr. Peso developed
immediate pain following the collision (4-6/10) which developed into severe
pain (10/10). Thereafter, he had some improvement after about two months but
that after, the pain remained more severe than before the collision although
there was some variability (7-9/10). He was aware Mr. Peso improved temporarily
in 2008 after a nerve block. At trial the evidence led by Mr. Peso was
consistent with Dr. Street’s assumptions.

[25]        
The only inconsistency between these assumptions and the evidence at
trial was that Mr. Peso developed symptoms about two days after the collision.
Dr. Street testified that this delay was still well within the parameters
required to conclude there was a temporal relationship between the collision and
the onset of the new symptoms, and he confirmed this did not affect his
opinion. The history Dr. Street assumed was consistent with other presented
evidence.

[26]        
The mistakes made by Dr. Street in his approach were unfortunate and likely
contributed to the need for a lengthy cross-examination. However, they are also
to be expected in the contact of an expert unfamiliar with the legal system
providing his opinion to the Court for the first time. Overall, Dr. Street
presented as someone of vast knowledge in his area of expertise, who wanted to
lend his assistance to the Court as fairly as possible.

[27]        
Dr. Donald Werry, the Third Party’s Orthopaedic expert, does not
specialize in spinal surgery or spinal disorders. He has never performed disectomy.
He does not review the literature on a regular basis to inform himself of the
latest developments in spinal injury research. Patients in need of surgical
consult for spine injuries would be referred to a surgeon such as Dr. Street.
Dr. Werry knows Dr. Street and respects him. In fact, Dr. Werry agreed that he
would largely defer to the expertise of Dr. Street in relation to treatment of
spinal conditions and disorders. In most respects, the experts are in
substantial agreement.

[28]        
For example Dr. Werry and Dr. Street agree:

1.         The collision aggravated Mr. Peso’s pre-existing
L4-5 disc herniation;

2.         Were
it not for the collision, Mr. Peso would likely have continued to experience
mild but not disabling symptoms. (Dr. Werry noted this would be in the absence
of some other accident or traumatic insult to the lumbar spine);

3.         Mr.
Peso’s inability to work form the time of the collision until at least the time
of his assessment was reasonable;

4.         Mr.
Peso underwent appropriate treatment for his injuries culminating in surgery;

5.         The
collision was a material cause of the need for surgery; and

6.         Given the surgery, Mr. Peso
should refrain from heavy work to the extent possible. The more heavy work Mr.
Peso does the more his spine will deteriorate.

[29]        
The only area of significant difference in opinion is that Dr. Werry
maintains that Mr. Peso was headed for surgery at some point regardless of the
collision. He acknowledges that there was no way to know when surgery would be
necessary and doing so would be pure speculation. Such contingencies cannot be
taken into account when assessing damages: Athey v. Leonati 1996 CanLII
183 (SCC); (para 28)

[30]        
In any event, Dr. Werry’s opinion appeared to be based on very little
reliable evidence. He was aware before trial that this was a point of major
disagreement between Dr. Street and himself.

[31]        
He researched the area and found no research that supported his position.
His opinion is in conflict with the proposition that most of the population
recover from disc herniations without surgery. In this regard, Dr. Street
testified that 90% of patients with leg pain or sciatica secondary to disc
herniation see symptoms resolution within 6 months. Indeed in his first report,
Dr. Werry expected Dr. Peso to make a full recovery based on that same natural
history of disc herniations.

[32]        
Dr. Werry’s opinion is also in conflict with Exhibit 7, a small study of
individuals with adolescent disc degeneration (which Dr. Werry agreed is the
appropriate diagnosis of Mr. Peso’s pre-collision condition). Dr. Werry
criticized the article on several legitimate grounds. It lacks controls, and it
has a small sample size, amongst other things. Regardless, it is a published
study in a respected journal and the only scientific evidence produced
regarding this issue. Dr. Werry’s opinion is undermined where he departs from
this study, particularly in light of Dr. Werry’s limited experience in the care
and treatment of spinal injuries.

[33]        
Dr. Werry’s prognosis that surgery was inevitable regardless of the
collision appears also to be based on assumptions not supported by the
evidence. Dr. Werry agreed that he did not know Mr. Peso had driven to and from
Osoyoos immediately before the collision, or that while there he had played
beach volleyball and gone boating. He agreed these were excellent indications
of function before the collision. Dr. Werry placed emphasis on the reports of
severe pain that appears in the consultation notes and records from Dr.
Neumann. Mr. Peso testified at trial that he had never experienced anything
like his post collision pain before being injured. The description was offered
before Mr. Peso had the full context of what severe pain really was. Dr. Werry
agreed that the same patient might report the same level of pain differently
over time, if their exposure to extreme pain changed. Thus after an extremely
painful event, what was once extreme may later seem mild.

[34]        
Dr. Street’s opinion should be preferred on this question. Since Dr.
Werry offered no opinion when any such surgery might be necessary, his offered
contingency is not a substantial possibility and should be ignored.

[35]        
Finally, the opinion seems to be at odds with his admission under cross
examination that absent the collision, Mr. Peso’s ongoing symptoms would have
been mild and not disabling. Therefore the risk of surgery to Mr. Peso absent
this collision would appear to be confined to situations in which Mr. Peso sustained
additional trauma. There is no evidence on how to assess such a risk and again
would be an exercise in speculation not permitted by law.

[36]        
Mr. Paul Pakulak is an occupational therapist. He is trained to perform
functional capacity assessments. Dr. Werry agreed that such assessments were a
useful method of assessing a patient’s capacity. Testing demonstrations that
Mr. Peso is partially disabled. Mr. Pakulak concludes:

In my opinion Mr. Peso
demonstrated the capacity for activity requiring medium level strength. He
demonstrated specific limitations related to prolonged and repetitive below
waist level work. He did demonstrate the strength sufficient for some lifting
and carrying in modified heavy range but given his response to testing
(significant increases in reported pain levels during the assessment and a
reduction in speed and capacity over the course of the assessment), I would
anticipate that prolonged activity above a medium level and/or without
provisions for the above limitations will adversely impact his productivity and
safety.

[37]        
Mr. Pakulak’s testing demonstrated Mr. Peso’s greatest limitations were
with respect to lifting. Mr. Peso tested below the expected norms, floor to
knuckle lifting (which recruits leg strength) was weakest when normally it
would be the strongest, and the results declined over repeated trials. Mr. Peso
denied any problems with lifting before the collision, a fact also noted in Dr.
Anzarut’s report and given some importance by Dr. Street.

[38]        
Mr. Peso had less severe but still noticeable restrictions when bending
and crouching were tested. Although Mr. Peso met competitive standards, he
started to make postural accommodations and his symptoms increased as the
testing progressed.

[39]        
Functional capacity testing can only measure an individual’s abilities
on the day tested; there is no ability to assess capacity in the future if the
underlying medical conditions changes. In this case, it is expected that Mr.
Peso’s symptoms are permanent and likely to worsen over time. In the future, Mr.
Peso’s work capacity will decrease as he ages.

[40]        
There was no cross examination of Mr. Pakulak’s actual findings and
conclusions. Cross examination highlighted that capacity assessments do not
establish that the results are casually connected to the collision.

[41]        
Mr. Peso testified that he had no lifting restrictions before the
collision. This is borne out by evidence that Mr. Peso’s duties at Home Depot
included lifting 60-90 pound bags of cement and 120 pound drywall sheets (which
he carried with a co-worker). Mr. Peso was required to do this type of lifting
every shift, usually multiple times throughout each shift.

[42]        
Warren Gardiner, Jason Pagliaro, Tracy Peso and Jake Peso all provided
consistent testimony regarding Mr. Peso’s pre-existing health. All testified
that Mr. Peso was a competitive athlete before the collision. None observed any
problems that hindered Mr. Peso in any significant way, and none could recall
the back problems that Mr. Peso acknowledges were present from about 2002. He
played competitive hockey and soccer throughout high school.

[43]        
Warren Gardiner and Jason Pagliaro both went through school with Mr.
Peso. They testified about numerous team sports they played together. Generally
these were in competitive leagues. In Mr. Peso’s case he reached the Major B
level in hockey. He also played soccer at the gold level. At no time were
either aware of any back injury in Mr. Peso. They acknowledged that he
sometimes sustained minor injuries from the sports he played, but he always
recovered uneventfully.

[44]        
According to Mr. Gardiner, Mr. Peso was the most gifted athlete within a
group of friends that socialized together during high school. Mr. Pagliaro
observed that Mr. Peso was the fastest member of their soccer team.

[45]        
Mr. Gardiner accompanied Mr. Peso on the trip to Osoyoos. He confirmed
Mr. Peso drove both ways. While they were in Osoyoos, he recalled they played
beach volleyball. He thinks they also may have gone waterskiing or tubing. He
was not as sure if Mr. Peso played golf that year.

[46]        
Tracy Peso testified that she enjoyed physical activity. She and Mr.
Peso did many activities together before the collision. In 2006 they went to
Mexico. In January, 2007 they went to Disneyland. They did a variety of
activities together in Vancouver. Mr. Peso showed no signs of any back
problems.

[47]        
Jake Peso is Mr. Peso’s older brother. He testified that their father,
who liked to build and renovate houses, taught them construction and carpentry
skills. Mr. Peso helped Jake Peso construct two new houses. The second project
started in 2006 and continued until the fall of 2007. Mr. Peso helped an
average of 12 hours a week until the collision when his involvement ended. Jake
Peso testified about a number of physically challenging things that Mr. Peso
did during the project including hauling lumber, general clean up, fine
carpentry and other work. He saw no signs of difficulty.

[48]        
Each witness testified about dramatic changes in Mr. Peso following the
collision. All agreed that Mr. Peso had improved but there was no suggestion he
had recovered fully.

[49]        
Mr. Gardiner observed that instead of participating in a lot of sports
activities with Mr. Peso they now mostly spent time just watching sports on TV.
While staying at a friend’s cabin about 3-4 months after the collision, Mr.
Gardiner recalled watching Tracy Peso change Mr. Peso’s socks, get him
medication and generally care for him while Mr. Peso spent the weekend in a
recliner chair. He recalled that at Mr. Peso’s wedding he referred to Mr. Peso
as a "broken down old man" and a "couch potato".

[50]        
Tracy Peso testified that in the fall of 2007 she effectively acted as
Mr. Peso’s nurse. She did the same again for Mr. Peso after his surgery in
December 2008. She testified that she had to help Mr. Peso put on both socks
and pants for up to a year after the surgery.

[51]        
Tracy Peso testified there are days Mr. Peso needs to be rolled over in
his bed. At times, he cannot get out of bed without assistance. Mr. Peso gained
weight after the accident going from about 170 to 194 pounds. He was exhausted
and lethargic. Recently there has been some improvement in this area and Mr.
Peso is now down to about 180 pounds, possibly because he is watching his diet
carefully. However, there will still be days where Tracy Peso observes Mr. Peso
lying on the floor stretching his back.

[52]        
Mr. Peso always cut his parents lawn before the collision. Now someone
is paid to do it. She and Mr. Peso are looking for a home. She thinks they will
have to pay to get the lawn cut.

[53]        
Tracy Peso recalled that in 2009 she and Mr. Peso went to Europe. She
described the flight as a nightmare. They went to Disneyland in Paris but Mr. Peso did not go on any rides
and they left early. On the two year anniversary of his surgery Mr. Peso
proposed to Tracy, underscoring the obvious importance of that date and
recognizing the important role Tracy had played in Mr. Peso’s recovery.
Generally Mr. Peso’s ability to engage in activities with Tracy was vastly
curtailed after the collision. As an active person she has been frustrated by
this at times.

[54]        
Mr. Peso stopped working on Jake Peso’s house after the collision. From
time to time, Jake Peso observed Mr. Peso with his back on the ground and his
feet elevated on the couch.

[55]        
In January 2010, Jake recalls
seeing Mr. Peso’s leg give out suddenly and for no obvious reason while on a
ladder. Jake thinks that Mr. Peso is doing better now but he still noted that
Mr. Peso ends up out of commission if he over exerts himself. He has resumed
golfing with his brother but they do not do so as often now as before the
collision.

[56]        
Mr. Pagliari has observed Tracy Peso help dress her husband. He has seen
Mr. Peso lying with his feet up on the couch.   Mr. Peso has played a limited
amount of soccer since the collision.

[57]        
On many occasions, Mr. Peso has
declined his invitation to participate in soccer or hockey. Mr. Peso has gone
from the fastest player on their soccer team to one of the slowest. He has
little endurance now.

[58]        
Mr. Peso does not deny that he has had back problems before the
collision. He first started to experience back problems in 2002. Symptoms were
intermittent. Mr. Peso played competitive hockey, soccer and tennis despite his
symptoms. In 2004 the symptoms increased. A CT scan showed evidence of a disc
herniation at L4-5. According to Dr. Turnbull’s consult report of May 10, 2004
Mr. Peso began to experience pain in his thigh. There is no suggestion the pain
radiated all the way to his foot, which is a better indication of nerve root
irritation according to Dr. Street. Fortunately the symptoms improved and Mr. Peso
continued to live an active life with no restrictions. After May, 2004 he did
not receive further medical treatment for his back until May, 2007.

[59]        
In February 2007, Mr. Peso suffered a back injury when a fence panel
fell on him. He started to feel symptoms in his leg again, particularly on
sitting or standing. He was able to lift heavy objects despite his injury. He
did not miss time from work and he was able to participate in sports activities
unimpeded by his back.

[60]        
Mr. Peso describes his pain in the weeks immediately before the
collision as no more than 2/10. After the incident at work there were times the
pain had been as severe as 4/10 for short periods. After the collision his pain
reached 10/10. He had never experienced anything like it before. According to
Dr. Street if not for the collision Mr. Peso would have continued to experience
symptoms from time to time, but would likely not have required surgery.

[61]        
The Third Party has made much of a pain scale in Dr. Neumann’s records
which Mr. Peso completed before the collision. At that time, Mr. Peso indicated
that his pain ranged from 6-8 out of 10, in which 10 was the worst pain
imaginable. Dr. Neumann affirmed that she does not explain to patients how to
complete the pain scale, unless they have difficulties with the English
language. Thus the rating is purely subjective; no descriptive content is
placed on the scale as it is in the case of the scale used by Paul Pakulak,
where pain ratings are equated to levels of function. Mr. Peso testified that
when he completed this pain scale he did not have any frame of reference with
which to appreciate the severity of the pain he experienced after the
collision. He expressed that the post-collision pain was much worse than the
pain he was attempting to quantify on the pain scale. As such, his
characterization at trial of his pre-accident pain differs from what he
recorded on the pain scale. Mr. Peso has provided a reasonable explanation for
this alleged discrepancy.

[62]        
In any event, if taken at face value the pre-collision pain scale is
inconsistent with Mr. Peso’s demonstrated abilities regarding work and
recreational activities at the time. The latter are more objective and reliable
measure of Mr. Peso’s pre-existing condition.

[63]        
The Third Party has also made much of the fact that Dr. Neumann’s
records refer to Mr. Peso’s pain as “severe” and “getting worse” before the
collision. She could not specifically recall that Mr. Peso made these
statements. On the other hand, Mr. Peso denied making such statements. As such,
the record is hearsay which the Court cannot admit into evidence. It is not
enough that the records are business records or that the maker of the records
testifies that she tries to be as accurate as possible: Forget v. MacCarthy
2002 BCSC 892 (CanLII).

[64]        
In this case, the notes of Dr. Werry are illustrative. In several
instances Dr. Werry admitted that his notes are incomplete. Plaintiff’s counsel
said this is not a criticism. He uses the notes as a mnemonic tool to assist
him to remember more than what he has written. However, if the notes were used
to try to prove or disprove something attributable to Mr. Peso, it would be
misleading and unfair.

[65]        
In the circumstances, the isolated pre-collision references to “severe”
pain should be ignored. The Third Party has not introduced any evidence to
suggest that Mr. Peso was disabled before the collision. To the contrary Mr.
Peso’s family and friends testified that he was well. Mr. Peso’s own evidence
is that he suffered mild problems that did not disable him. He did not even
take medication with him to Osoyoos.

[66]        
If Mr. Peso’s evidence in this regard is accepted,
there is no basis to reduce damages for a pre-existing condition. It is not the
presence of such a condition that is relevant, it is whether that condition
negatively impacts the Plaintiff’s life. The evidence on this issue indicates
that there was no such impact. Accordingly there is no basis to reduce damages.

[67]        
The Plaintiff must establish on a balance of
probabilities that but for the Defendant’s negligence, the Plaintiff would not
have sustained the injuries and losses claimed. The test is to be applied
robustly, and with common sense. Clements v. Clements, 2012 SCC 32.
There may be more than one cause of an injury. Causation is established if the
contribution of the Defendant’s negligence was more than de minimis: Athey
v. Leonati 1996 CanLII 183 (S.C.C.) at paragraph 44.

[68]        
Where the injury caused by the Defendant is indivisible from the
injuries arising from other causes the Defendant is responsible for the whole
of the Plaintiff’s loss: E.D.G. v. Hammer 2003 SCC 52 (CanLII), Ashcroft
v. Dhaliwal 2008 BCCA 352, Bradley v. Groves 2010 BCCA 361 (CanLII).

[69]        
Mr. Peso had a condition known as adolescent disc disease. The natural
history of this condition would have caused Mr. Peso episodic back pain but
little in the way of disability. But for the collision, Mr. Peso would not have
undergone surgery and would not have been left with a back permanently
vulnerable to flare ups, deterioration, and further surgery. Thus the injuries
sustained in the collision are indivisible from those that existed before the
collision. Dr. Street opines that the collision significantly aggravated Mr.
Peso’s condition and made it permanently worse. Dr. Werry agrees with this
characterization of causation in his report dated February 14, 2008 and he
affirmed this at trial. Accordingly I am satisfied the Defendant is responsible
for the whole of Mr. Peso’s loss.

DAMAGES

NON PECUNIARY DAMAGES

[70]        
Regardless of Mr. Peso’s pre-existing condition, he was able to enjoy
his life before the collision. He was able to perform ordinary household tasks,
cook, and socialize with his friends and family. He had a long history of
competing in competitive and recreational sports and was very active on the
weekend trip to Osoyoos immediately before the collision. In addition to
working at a physical job, he participated in renovation and building projects for
his brother, putting in an estimated average of 12 hours a week.

[71]        
According to Dr. Street, in the absence of the collision Mr. Peso would
have likely continued to experience mild, non-disabling symptoms in his low
back. As a result of the collision, Mr. Peso required surgery and faces a
significant risk of additional surgery at some point in the future. He is
limited in his capacity to perform some aspects of his work. His left leg is
weaker than the right and his capacity to lift is diminished. Mr. Peso, a
gifted athlete before the collision, is unlikely to return to anything close to
his pre-collision level of activity.

[72]        
Non-pecuniary damages ought to be assessed in the context of a young man
who has sustained a permanent, life changing injury. It was clear from Mr.
Peso’s testimony that he has not let his injuries stop him. He has persevered
with school and actively hid his symptoms from his employer. He has tried all
of his former activities but he has only been able to tolerate some
successfully. It is clear that despite Mr. Peso’s determination he has real
fears about his future. He worries about recurrence of pain and he worries he
will be expected to perform tasks that he cannot do.

[73]        
Mr. Peso suffered chronic pain disability and loss of recreational
amenities for over a year until his December 2008 surgery. His scope of future
recreational enjoyment will continue to be curtailed.

[74]        
I fix pain and suffering with loss of amenities, past and future, at
$100,000.

PAST LOSS OF INCOME

[75]        
At the time of the Collision, Mr. Peso was
employed by Home Depot where he was a sales associate. His duties were physical
as in addition to providing assistance to customers, he was required to cut and
haul lumber and drywall, load deliveries for customers, conduct building
demonstrations, and stock shelves. He frequently lifted more than 100 pounds.

[76]        
Mr. Peso’s earnings for 2007 were $10,089. Mr.
Peso did not return to Home Depot after the collision so this represents his
earnings for the first 6 months of the year, an average of $1,682 per month. He
was paid $11.70 per hour. Hours varied but until the collision Mr. Peso
averaged over 30 hours per week in 2007 ($10,089 / 26 weeks / $11.70 per hour =
33.2 hours per week).

[77]        
In September 2007 Mr. Peso started studying to
become an electrician at BCIT, as planned before the collision. Home Depot
offered a benefit to its employees in which it would fund tuition costs for
employees pursuing relevant education. Mr. Peso applied for this benefit on
March 14, 2007 and received approval on March 22. To remain eligible for the
benefit, Mr. Peso was required to remain with Home Depot for 1 year after the
tuition was paid and to work a minimum of 20 hours per week while in school.
Mr. Peso intended to fulfill those commitments.

[78]        
Due to the collision, Mr. Peso never returned to
Home Depot; however he found employment with Mott Electric in March, 2008.
Therefore, Mr. Peso’s income loss associated with Home Depot is:

2 months at $1,682 per
month ($10,089/6)                                                     $3,363.00

6 months at 20 hours per week (25 weeks x 20 hrs/week x $11.70 per hr) $5,850.00

Total before tax income loss:                                                                          $9,213.00

[79]        
Since starting with Mott, Mr. Peso has alternated
between work and school. He is still an apprentice and expects to complete his
school requirements to become a journeyman electrician in October, 2012.

[80]        
Mr. Peso is a member of the International Brotherhood of Electrical
Workers local 213. A collective agreement governs the remuneration and other
employment conditions of the employees.

[81]        
In 2008 Mr. Peso required surgery on his back. He scheduled the surgery
for December when work was slow and to ensure that most of his recovery would
take place while he attended school in January 2009. Nonetheless he still
missed about 7 work days in December 2008. At the time he was paid $15.16 per
hour.

[82]        
Around Christmas 2010 Mr. Peso had another flare up in his symptoms.
This time he only missed about 3 days, largely thanks to the holidays and that
he was resuming to school rather than work after the New Year. His wage rate at
the time was $25.42 per hour. Wage schedule shows that a 4^th term
apprentice was paid $21.72 per hour in November 2007. Footnotes at the bottom
of the page indicate a wage increase of $3.70 as of April 2010.) Mr. Peso has
missed other days when his symptoms have flared but he has not kept any record
of those absences nor is there an indication of the absences in the employer’s
records. Ignoring those days, and ignoring the value of any lost benefits
associated with his missed time, Mr. Peso’s loss while at Mott is:

December 19-31 2008 (7 days x 8 hours x $15.16)     $848.96

December 2010 (3 days x 8 hours x
$25.42) $610.08

Total before tax income loss:                                     $1,459.04

[83]        
The total claim for past income loss before tax
to date is $10,672.04

[84]        
The amount to be deducted for tax will be left
for counsel to agree, or failing agreement, for consideration in a subsequent
hearing.

FUTURE LOSS OF EARNING CAPACITY

[85]        
Mr. Peso must establish that there is a substantial possibility that
lost capacity will result in pecuniary loss. This only means that the loss must
not merely be speculation: Steward v. Berezan 2007 BCCA 150, Perren
v. Lalari 2010 BCCA 140 (Can Lll). If that possibility is established,
quantification can be undertaken using either the loss of earnings approach or
the reduced capital asset approach.

[86]        
There is no reason why an injury which permits a plaintiff to
continue in a particular occupation but at a reduced level of performance and
income should not be compensated through damages for loss of earning capacity: Sinnott
v. Boggs, 2007 BCCA 267 (CanLII).

[87]        
Mr. Peso was reluctant to discuss his difficulties at work. He has been
determined to hide his symptoms from his employer to the extent possible. He is
a hard working young man who has done his best to overcome his injuries.
Nonetheless he did testify that at times he missed work after strenuous shifts.
He has avoided some of the more physical types of work available at Mott, such as climbing cell towers and working on
the industrial sites where the work is heaviest. Electricians doing this work
haul cable that weighs 3-5 pounds per foot. The cable can be 400 feet. Mr. Peso
acknowledged that avoiding this work has restricted the breadth of his
experience. It is also the work that exposes him to high voltage power that he
must have experience with to earn his "A" ticket and become a Master
electrician. He is at risk of only being restricted to only one aspect of
Mott’s work instead of being considered capable of doing all the types of work
in which Mott engages.

[88]        
Currently 26, Mr. Peso can expect to be in the workforce for another 41
years. During that time, he faces a significant risk of further surgery on his
back approaching 50%. Some aspects of his job are quite physical. To have the
broadest range of experience and to maximize the opportunity to advance the
furthest in his career, Mr. Peso will have to start doing this work, or he will
have to accept that his career may be limited. However, based on the evidence
of Dr. Street, Paul Pakulak and Mr. Peso himself, if he starts to do such work
regularly he is likely to face flare ups in his back and consequent absences
from work. In fact, Mr. Peso testified that he already experiences flare ups
from time to time even without being exposed to the heaviest industrial work.
Indeed, medical opinion is that Mr. Peso will miss a "substantial"
amount of work in the future due to flare ups. He may be unable to do the work on
a prolonged basis, damaging his employment prospects. Mr. Peso does not
personally believe that he will be able to carry out the duties expected of him
at Mott indefinitely.

[89]        
Mr. Peso is so concerned about the long term prospects for his back that
he has already decided that he will need to leave Mott. Mr. Peso testified that
even before being injured his long term goal was to start his own company.
However, he now feels that he must do so, instead of it just being an
option. Further, he feels he must do so soon, before his back gets worse, so
that he can build the business to a point where he can afford to hire others to
do the heavy labour. The outcome of such a venture is impossible to predict,
but it is known that Mr. Peso would be leaving secure employment with wages and
benefits that would exceed $40 per hour. It is difficult to imagine that with a
family to support Mr. Peso would leave Mott and the secure salary and benefits absent the collision
unless he was very sure he had the experience, contacts, and business skills to
be successful on his own. Accordingly, potential earnings at Mott are a good
proxy of Mr. Peso’s general pre-collision earnings potential.

[90]        
There are many reasons Mr. Peso may leave Mott before he retires.
The company might close, he could be laid off, or he might relocate. Few people
remain with the same employer for 40 years.
In the event Mr. Peso does leave Mott, whether voluntarily or not, he will have
fewer options available to him when compared with uninjured electricians. He will
not be considered as an attractive candidate in comparison with others because
he will likely only have experience in lighter duty positions and will only
suitable for light duty jobs.

[91]        
His capital asset is further reduced as he would not be capable of doing
the work he once did at Home Depot. While it is unlikely that absent the
collision Mr. Peso would have returned to this type of work on a permanent
basis, over the course of 40 years, it is a real possibility that he might have
done this type of work part time or on a temporary basis if work as an
electrician slowed down or lost its appeal. This is no longer an option for Mr.
Peso.

[92]        
It is not possible to quantify Mr. Peso’s loss of capacity precisely. A
starting point is to look at his potential lifetime earnings at Mott, which is
a reasonable estimate of his potential capital asset. At about $35 per hour, he
can expect to earn about $70,000. Under the collective agreement, holiday time
adds a further 12% to his compensation. From time to time, Mr. Peso would be
paid shift differential premiums, overtime and other benefits. Non-wage
benefits add a minimum of 15% to his overall remuneration, resulting in total
annual compensation of about $80,500.

[93]        
Mr. Peso did not have a history of missing work before
the collision. He is hardworking and ambitious. He is a unionized employee in
an industry that is in demand. The Pesos plan to start a family soon. Tracy
Peso will take maternity leave. It is clear that Mr. Peso will have to be the
primary income earner in the family. This is strong motivation to stay in the
workforce.

[94]        
The Court can sometimes use the Plaintiff’s annual
salary as a measure of damages. Where the evidence of future problems is
sufficiently high, and where the Plaintiff is relatively young, loss of
capacity may be fixed at two years’ current earnings: Crane v. Lee, 2011
BCSC 898 (CanLII); Sevinski v. Vance, 2011 BCSC 892 (CanLII)

[95]        
Accordingly I fix loss of future earning capacity at a
$161,000.

SPECIAL DAMAGES

[96]        
As a result of being unable to work at Home Depot, Mr. Peso was not
eligible to receive the cost of tuition. Accordingly, the tuition for Mr.
Peso’s first year at BCIT is an expense he would not have incurred but for the
accident.

[97]        
Mr. Peso submitted his medical receipts to an extended medical insurer.
He only claims the shortfall.

[98]        
The quantum of Mr. Peso’s special damages is agreed. They are:

BCIT tuition                       $
2,698.40

Physiotherapy                   $ 
220.00

Chiropractic care               $ 
219.00

Medication $ 
165.52

Total                                 $
3,302.92

COST OF FUTURE CARE

[99]        
Dr. Street notes that in addition to surgery, other
non-surgical treatments are anticipated. This includes medication, exercise,
and nerve blocks. If surgery is necessary care costs increase tremendously.

[100]     Dr. Street and Dr. Werry testified that in the event of a fusion
operation, recovery would be prolonged. Medication, physiotherapy, and rehab
would all be required. In addition, Dr. Werry confirmed that Mr. Peso would be
unable to care for his home, undertake yard work, or drive during his recovery.

[101]     An at large claim of $5,000 has been advanced as a reasonable
estimate of these damages. I agree; $5,000 is appropriate.

CONCLUSION

[102]     Liability for the accident rests fully with the Defendant.

[103]     Damages are:

Non pecuniary                                       $100,000.00

Past loss of income
(gross)                    $  10,672.04

Future Loss of
earning capacity             $161,000.00

Special damages                                   $ 
3,302.92

Future cost of
care $    5,000.00

Total                                                    $$279,974.96

[104]    
If applicable, the Plaintiff is entitled to
costs.

“Wong
J.”