IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20121130

Docket: M093961

Registry:
Vancouver

Between:

Dean Michael Johnson

Plaintiff

And

Mervyn Shane Kitchener,
M.G. Lund Trucking Inc.,

Eugeni Dimitrou Georgiev
and Ling Gee Luk

Defendants

Before:
The Honourable Madam Justice Gerow

Reasons for Judgment

[1]            
Dean Johnson was involved in two motor vehicle accidents, one on
December 17, 2007, and the other on June 15, 2008. Liability has been admitted
by the defendants in both actions. The only issue is what amount of damages Mr. Johnson
is entitled to.

[2]            
The 2007 accident was the more serious of the two accidents. In the 2007
accident, Mr. Johnson stopped because the car ahead of him had stopped in an
intersection even though the light was green. While he was stopped, he was rear
ended by a large trailer truck driven by the defendant Mervyn Kitchener. The
2008 collision was less significant in terms of impact. Mr. Johnson’s vehicle
was sideswiped by a vehicle driven by the defendant, Ling Gee Luk.

[3]            
Mr. Johnson is claiming damages for injuries to his neck and back which he
alleges he suffered in the 2007 accident. He says those injuries were exacerbated
by the 2008 accident. Mr. Johnson seeks damages for pain and suffering, past
loss of income, past and future loss of income earning capacity, special
damages and cost of future care.

[4]            
The defendants admit that Mr. Johnson sustained soft tissue injuries to
his neck and back in the 2007 accident. However, they disagree as to the
seriousness of his injuries. They point to the fact that he was able to return
to work in May 2008 and to his regular sporting activities by the summer of
2008. They take the position that the injuries from the 2008 accident were
minor and lasted less than a week.

[5]            
The defendants say that Mr. Johnson has not proved that any of the ongoing
symptoms he has in his neck and back were caused by either accident. The
defendants assert that Mr. Johnson’s ongoing complaints are likely the result
of his pre-existing degenerative spine condition and would have developed
despite the accidents. As such the accidents have not affected Mr. Johnson’s
status going forward.

Issues

[6]            
The issues are:

1)    What are the
nature, extent and duration of the injuries Mr. Johnson suffered in the accidents?

2)    What is the
appropriate award of general damages for pain and suffering?

3)    What amount, if
any, should be awarded for the loss of past and future earning capacity?

4)    What amount, if
any, should be awarded for cost of future care?

5)    What amount
should be awarded for special damages?

Background

[7]            
The first accident occurred on December 2007, when Mr. Johnson’s vehicle
was rear-ended by a vehicle driven by the defendant, Mr. Kitchener. At the time
of the accident, Mr. Johnson was driving a Dodge pickup truck with steel bumpers
and was wearing his seatbelt. He was on his way to play golf at Fraserview Golf
Course.

[8]            
Mr. Johnson stopped because the car ahead of him stopped. Mr. Kitchener
was driving a large tractor trailer truck. The impact of the collision caused
Mr. Johnson’s vehicle to hit the car ahead of him and knock it through the
intersection. The car ahead of him suffered significant damage. Mr. Johnson did
not have any warning before the impact.

[9]            
Mr. Kitchener’s evidence is that he was approaching the intersection
travelling at 40 to 50 kph when he saw the brake lights come on in the pickup
ahead of him. He tried to stop and his vehicle started to slide. His evidence
is that his tractor trailer was unloaded at the time and would have weighed
approximately 23,000 to 25,000 kilograms. His estimate is that he was going
approximately 20 kph when he struck Mr. Johnson’s truck. Mr. Kitchener
described the impact between his vehicle and the vehicle driven by Mr. Johnson
as solid.

[10]        
Mr. Johnson testified that at the time of the impact he felt like he was
hit by a two by four in the back of the head. He was totally rattled and shaken.
He does not believe he lost consciousness but thinks he was in shock. Mr.
Johnson did not go with the ambulance attendants to the hospital because he did
not want to leave his expensive golf equipment in his vehicle. He waited until
his wife arrived, loaded his golf equipment into her vehicle, and she took him
to the hospital.

[11]        
 Mr. Johnson testified that he had a large lump on the back of his head
following the accident. Right after the accident he was very groggy, and his
wrists and shoulders were sore. As well, he felt pain in his legs, neck and
back. His neck was swollen, hot and sore. His lower back was sore and had a
burning sensation. Throughout the first week following the accident he felt the
effects from the accident more and more. Mr. Johnson took five months off from
work following the 2007 accident. His evidence is that in the years since the 2007
accident he has continued to have pain and soreness in his neck and burning
pain in his lower back. Mr. Johnson says that the injuries he sustained in the 2007
accident continue to negatively impact his life.

[12]        
The second accident occurred on June 15, 2008. Mr. Johnson was
travelling westbound on 8th Avenue in New Westminster when he was sideswiped by
a vehicle driven by Mr. Luk. Mr. Johnson takes the position that the accident
exacerbated the injuries he suffered in the 2007 accident.

[13]        
At the time of the 2007 accident, Mr. Johnson was working as a truck
driver for Summit Logistics Inc. Mr. Johnson left school after grade 8 to start
working because of his family situation. He worked at a variety of jobs until
about 1990 when he went to work for MacDonalds Consolidated in the warehouse
for Safeway. He worked in the warehouse until 1997 when he became a truck
driver for the same company. The company was taken over by Summit during the
course of his employment. After the 2007 accident, Mr. Johnson began a gradual
return to work at Summit in May 2008.

[14]        
After the 2008 accident, Mr. Johnson missed one day of work. Both Mr. Johnson
and the defendants agree that the 2008 accident exacerbated his earlier
injuries but that it was fairly insignificant. They have agreed to apportion
any damages between the accidents on a 90/10 split of liability.

[15]        
In February 2011, Mr. Johnson was laid off from his job at Summit. After
being laid off, Mr. Johnson’s original plan was to obtain work as a driver in
the movie industry. However, he was hired on a casual basis and was not getting
enough work so he decided to look for other employment. In May 2012, Mr.
Johnson was hired by Ocean Concrete as a concrete truck driver. To date, he has
worked on an on call basis, but he testified that he expects there will be more
shifts this fall. Mr. Johnson’s evidence is that he finds the job difficult
because of the physical requirements. However, he testified he takes all the
shifts that are available to him. His employment records bear out his testimony.
The only shifts he has refused have been on Saturdays when he was called at the
last minute and had prior commitments.

Nature, Extent and Duration of Injuries Suffered in the Accidents

[16]        
Mr. Johnson asserts that the evidence taken as a whole demonstrates that
he has suffered a permanent partial disability relating to his ongoing neck,
upper back and lower back pain caused by the accidents. To the extent it arose
from a pre-existing degenerative spine condition, an age related event, he
submits the condition was asymptomatic and became symptomatic as a result of
the accidents, particularly the 2007 accident.

[17]        
Mr. Johnson’s evidence is that he is suffering from ongoing neck, upper
back and lower back pain as a result of the accidents. He testified that he
also has some shoulder problems, but those are the least of his concerns. Mr. Johnson’s
evidence is that the symptoms in his neck and lower back impact his ability to
participate in his pre-accident activities.

[18]        
Mr. Johnson asserts that in the absence of the accidents, and in
particular the 2007 accident, it is unlikely that his neck and lower back
problems would be troubling him today.

[19]        
The defendants take the position that Mr. Johnson suffered a moderate
whiplash injury to his neck and upper back as a result of the 2007 accident,
with a mild exacerbation of symptoms as a result of the 2008 accident.

[20]        
The defendants submit that any ongoing neck symptoms Mr. Johnson is
suffering from were not caused by the accidents, but are the result of other
accidents or a spontaneous onset of his degenerative disc disease. They assert
that his degenerative condition was not asymptomatic prior to the 2007 accident,
and that Mr. Johnson had symptoms as identified by his own expert. As well,
they point to the fact that he has sustained other injuries both before and
after the accidents.

[21]        
In order to establish causation Mr. Johnson must prove on a balance of
probabilities that but for the accident he would not have suffered the injuries
he complains of.

[22]        
The Supreme Court of Canada recently considered causation in Clements
v. Clements, 2012 SCC 32. The Court confirmed that the basic test for
determining causation remains the “but for” test articulated in Snell v.
Farrell, [1990] 2 S.C.R. 311, and Athey v. Leonati, [1996] 3 S.C.R.
458. The plaintiff bears the burden of proving that but for the negligent act
or omission of the defendant the injury would not have occurred.

[23]        
The plaintiff is not required to establish that the defendant’s
negligence was the sole cause of his or her injuries. The tortfeasor must take
his or her victim as the tortfeasor finds them, and is liable even if there are
other causal factors, for which the defendant is not responsible, that result
in the victim’s losses being more severe than they would be for the average
person. At the same time, the tortfeasor need not put the victim in a better
position than they would have been in, and need not compensate the victim for
the effects of a pre-existing condition that the victim would have experienced
in any event: Snell and Athey.

[24]        
As stated earlier, the defendants do not dispute that Mr. Johnson
sustained soft tissue injuries to his neck and upper body as a result of the
2007 accident. However, they say that he had recovered to a substantial extent
except for some minor residual symptoms by the summer of 2008. They point to
the fact that Mr. Johnson was able to return to work as a truck driver in
May 2008 and to his regular sporting activities by the summer of 2008. The
defendants say that the evidence reveals that his residual symptoms were
improving between 2008 and into 2010, when it seems that his condition began to
deteriorate.

[25]        
The defendants’ position is that Mr. Johnson’s injuries from the 2008 accident
were minor, lasting less than a week and there is no evidence to support a
diagnosis of a right shoulder separation.

[26]        
The defendants say that any shoulder pain Mr. Johnson has is not
attributable to the accidents. As well, they say that the evidence about Mr.
Johnson’s ongoing lower back complaints does not establish that those
complaints were caused by either accident.

[27]        
The defendants assert that Mr. Johnson’s degenerative condition in his
spine was not completely asymptomatic prior to the 2007 accident. They say
there is evidence that Mr. Johnson had intermittent stiffness and soreness in
his neck prior to the accidents. He had an acute episode of neck pain in
January 2005 and Dr. David Freedman, his family doctor, was still noting
tense trapezius muscles in June 2005.

[28]        
The defendants rely on the opinion of Dr. Andrew Travlos, an expert in
physical medicine and rehabilitation retained by Mr. Johnson. Dr. Travlos’
opinion is that Mr. Johnson was an individual at risk of injury to the neck and
may have gone on to develop the spontaneous onset of neck symptoms at some
point in the absence of the accidents. Dr. Travlos suggests that Mr. Johnson
would likely have suffered a spontaneous onset of ongoing chronic neck symptoms
anywhere from three to ten years after the accidents.  The defendants say that
evidence establishes that Mr. Johnson’s ongoing current complaints are the
result of his degenerative condition and would have been present in any event.

[29]        
All of the doctors agree that Mr. Johnson was injured in the
accidents. There was an issue as to whether Mr. Johnson injured his lower back
as well as his neck and shoulders; however, it is apparent from the evidence of
his physiotherapist and his family doctor’s records that Mr. Johnson
injured his lower back as well as his neck and upper back in the 2007 accident.

[30]        
The evidence is that from the time of the 2007 accident, Mr. Johnson
sought treatment for pain and symptoms in his neck and upper and lower back. He
also complained about his shoulder from time to time. However, there is no
evidence that Mr. Johnson suffered a disability due to his shoulder symptoms. Mr.
Johnson has had trouble with one of his shoulders since he injured it playing
baseball as a teenager.

[31]        
As well, prior to the 2007 accident, Mr. Johnson had numerous injuries,
including injuries to his shoulder, dating back to his teenage years. He had
shoulder surgery prior to the 2007 accident, but was left with residual
problems in his shoulder.

[32]        
Mr. Johnson also suffered from sleep apnea and had a heart attack in
2002. Despite these problems, Mr. Johnson was physically active prior to the
2007 accident. The evidence is that Mr. Johnson has been very active during his
life. He played numerous sports, including lacrosse and soccer when he was
younger. He received many awards for sports and was an elite player in lacrosse.

[33]        
At the time of the 2007 accident, he was playing a lot of golf. Mr.
Johnson and his golf partners called themselves “the mudders” because they
played throughout the rainy season. They would frequently play more than 18
holes of golf in a day. Mr. Johnson’s work schedule prior to the accident
allowed him to pursue his sports during the day.

[34]        
Mr. Johnson’s evidence is although he has been able to return to many of
the sports he used to engage in, including golf, his level of performance has
diminished and he is unable to participate pain free, or to the same extent he
was able to, before the 2007 accident. Mr. Johnson’s evidence in that regard was
confirmed by two of his golfing partners who say that his stroke has changed
since the accident, and he now has to ride a cart as opposed to walking the
course.

[35]        
While the defendants suggest that Mr. Johnson’s ongoing lower back pain
was not caused by the accident, there is evidence that he has complained of lower
back pain on and off since the 2007 accident. Dr. Kendall, an orthopaedic
surgeon, opines that although the onset of his lower back pain was somewhat
delayed, it was likely caused by the 2007 accident.

[36]        
All of the doctors agree that Mr. Johnson had significant degeneration
in his neck prior to the 2007 accident.

[37]        
Dr. Froh, the defendants’ expert, says that in his opinion the degenerative
changes in Mr. Johnson’s spine were asymptomatic prior to the 2007 accident. The
soft tissue strains to the neck and back he suffered in the accident precipitated
symptoms that now are primarily related to the degenerative changes at both the
neck and lower back. Dr. Froh’s opinion is that the five months Mr. Johnson took
off following the 2007 accident was reasonable. While acknowledging that Mr.
Johnson has continued to suffer from both neck and lower back symptoms to
varying degrees since then, Dr. Froh’s opinion is that soft tissue injuries
such as the ones Mr. Johnson suffered should resolve in five months, and
that any ongoing symptoms are due to the degenerative changes in Mr. Johnson’s
spine and not as a result of the accidents. However, Dr. Froh conceded in
cross-examination that he did not know if the degenerative condition in Mr.
Johnson’s spine would become symptomatic absent the accidents, and if it did
become symptomatic, how significant the symptoms would be.

[38]        
Dr. Froh’s opinion is that Mr. Johnson is not disabled with regards to
work or any high demand recreational activity. However, Mr. Johnson may have
symptoms with high demand activities. Dr. Froh noted that Mr. Johnson was able
to function in his job at Summit at the time he saw him. However, he was not
aware of the physical demands of Mr. Johnson’s job at Summit or other truck
driving jobs.

[39]        
Having reviewed all of the medical evidence, I find that Mr. Johnson
suffered soft tissue injuries to his neck, upper back and lower back in the
2007 accident. Those injuries were exacerbated to a minor extent in the 2008
accident. As well, the evidence is that Mr. Johnson had significant
degeneration in his neck and some degeneration in the rest of his spine at the
time of the 2007 accident.

[40]        
While there is some evidence that his neck would have become symptomatic
in any event of the accident, it was unclear as to when and how debilitating it
would have been. Apart from Dr. Travlos, none of the experts were able to
provide an opinion as to when and if the degenerative changes in his neck would
become symptomatic. Dr. Travlos testified that while his neck would likely
become symptomatic in any event within 3 to 10 years of the accidents, he was
unable to say the degree to which it would become symptomatic and what the
effect of those symptoms would have on Mr. Johnson’s ability to work or
participate in extracurricular activities.

[41]        
As stated earlier, Mr. Johnson returned to work within five months of
the 2007 accident and returned to his sporting activities by the summer of
2008, albeit with discomfort. He apparently tried golfing on one or two
occasions in February 2008, but had an increase in his symptoms afterwards.

[42]        
Mr. Johnson’s evidence is that he now pays for any physical activity
with increased pain in his lower back and neck.  His job duties with Ocean
Concrete cause increased pain and discomfort. Mr. Johnson’s evidence is that he
is having difficulty performing the physical aspects of his job such as
shovelling and hosing down the truck. He says that his work day takes it out of
him and he is unable to do much after the work. He still participates in sports
but cannot perform at the same level and he has increased pain after he
participates.

[43]        
Mr. Johnson’s wife, Charlotte Coulson and his brother-in-law, Brent
Coulson both testified about Mr. Johnson’s abilities pre and post accident. Both
testified that Mr. Johnson still plays golf and does other activities he did
before the 2007 accident, but it is apparent to them he suffers increased pain
afterwards. Ms. Coulson described how her husband had lost the bounce in his
step following the 2007 accident. He is more likely to be sedentary than he
used to be. As well, both testified that Mr. Johnson is unable to do the heavy
work around the house he used to do prior to the 2007 accident.

[44]        
The defendants rely on some statements in letters from Mr. Johnson’s
cardiologist to his family doctor regarding Mr. Johnson’s level of physical
activity prior to the 2007 accident. The cardiologist, Dr. Cheung, did not
testify. Mr. Johnson agreed with some of the statements, but disagreed with
others. In my view, very little weight can be given to the statements contained
in those letters unless Mr. Johnson adopted them.

[45]        
Mr. Johnson’s evidence is that while he had bumps and bruises in the
past from sports and work injuries, they did not have a long term impact on his
health. The evidence of his family doctor confirms Mr. Johnson’s evidence. Mr.
Johnson had complained of one incidence of neck pain in January 2005. Between
then and the 2007 accident there were no other complaints of neck pain. One
month prior to the 2007 accident, Dr. Freedman performed a complete physical of
Mr. Johnson in which he found his neck and back to be normal.

[46]        
Dr. Freedman’s evidence is that Mr. Johnson would occasionally suffer
sports injuries but nothing of significance. In Dr. Freedman’s opinion, Mr.
Johnson had fully recovered from his heart attack by the time of 2007 accident.
Dr. Freedman reports that following the 2007 accident, Mr. Johnson continued to
have persistent lower back pain, which was made worse by the 2008 accident. He
reports that Mr. Johnson has become anxious because the symptoms have remained
for so long.

[47]        
Dr. Freedman testified that Mr. Johnson’s symptoms become worse with
activity. Activities Mr. Johnson used to do have become difficult and painful. In
Dr. Freedman’s opinion, Mr. Johnson’s shoulder problems have recovered to his
pre-2007 accident condition, but his neck and back symptoms have remained
fairly constant over the past few years.

[48]        
Although the defendants suggest Dr. Freedman agreed that Mr. Johnson’s
complaints of lower back pain in 2008 was a new injury unrelated to either
accident that suggestion was not supported by the evidence. Dr. Freedman’s
evidence was Mr. Johnson’s increase in lower back pain in October 2008 when he
got out of a chair was an exacerbation of the ongoing lower back problem from
the 2007 accident for which he was receiving physiotherapy in early 2008. He testified
that Mr. Johnson had never had any complaints about lower back pain prior to
the 2007 accident.

[49]        
The defendants submit I should put little weight on Dr. Freedman’s
evidence because he was an advocate for Mr. Johnson. I do not agree. He
explained his perspective regarding his role as a family doctor who sees a
patient on numerous occasions as opposed to specialists who just see a snapshot
of a patient’s condition. As a result, he did not agree with the suggestions
put to him by defence counsel that he should defer to specialists in regard to
certain opinions. In my view that was reasonable in the context of the
questions.

[50]        
The defendants rely on Workers’ Compensation Board records which show
that Mr. Johnson had missed work from time to time as a result of injuries in
the work place; however, there is nothing in the records which is as
significant as the time missed after the 2007 accident.

[51]        
In my opinion, the evidence establishes that Mr. Johnson suffered a
moderate whiplash injury to his neck, upper back and lower back in the 2007
accident, along with some minor injuries which resolved quite quickly. He has
suffered from symptoms to his neck and back on and off since the time of that
accident. Those injuries were exacerbated to a minor extent by the 2008
accident. Although many of his symptoms resolved by the summer of 2008, Mr.
Johnson continues to have ongoing symptoms in his neck and back five years post
accident that appear to be chronic in nature.

[52]        
In my view, the preponderance of the evidence establishes a temporal
connection between the accidents and Mr. Johnson’s ongoing symptoms of neck
pain and back pain. The whiplash injuries Mr. Johnson suffered in the accidents
caused or contributed to his degenerative disc disease becoming symptomatic
which has resulted in the symptoms he now suffers.

[53]        
To that must be added the caveat that Dr. Travlos was of the opinion that
the degenerative condition in his neck would likely have become symptomatic
within 3 to 10 years regardless of the accidents, however, he was not able to
give an opinion as to the extent Mr. Johnson would have become symptomatic,
whether the onset would be gradual or sudden, or what impact the symptoms would
have on his activities.

[54]        
The issue that must be determined in deciding the appropriate award of
damages in this case is whether there was a measurable risk that his
pre-existing disc disease would have detrimentally affected Mr. Johnson in the
future, regardless of the defendants’ negligence.

[55]        
In Athey, the court sets out the way in which a pre-existing
condition may be relevant to the assessment of damages at p. 473:

[34]      … The "crumbling
skull" doctrine is an awkward label for a fairly simple idea. It is named
after the well-known "thin skull" rule, which makes the tortfeasor
liable for the plaintiff’s injuries even if the injuries are unexpectedly
severe owing to a pre-existing condition. The tortfeasor must take his or her
victim as the tortfeasor finds the victim, and is therefore liable even though
the plaintiff’s losses are more dramatic than they would be for the average
person.

[35]      The
so-called "crumbling skull" rule simply recognizes that the
pre-existing condition was inherent in the plaintiff’s "original
position". The defendant need not put the plaintiff in a position better
than his or her original position. The defendant is liable for the injuries
caused, even if they are extreme, but need not compensate the plaintiff for any
debilitating effects of the pre-existing condition which the plaintiff would
have experienced anyway. The defendant is liable for the additional damage but
not the pre-existing damage: … Likewise, if there is a measurable risk that
the pre-existing condition would have detrimentally affected the plaintiff in
the future, regardless of the defendant’s negligence, then this can be taken
into account in reducing the overall award: … This is consistent with the
general rule that the plaintiff must be returned to the position he would have
been in, with all of its attendant risks and shortcomings, and not a better
position.

[56]        
As stated earlier, the defendants argue that Mr. Johnson’s ongoing neck
complaints are as a result of his pre-existing degeneration in his neck. They
point to Dr. Travlos’ evidence in that regard. As well, the defendants submit
his lower back problems arose spontaneously when he got out of a chair in
October 2008.

[57]        
However, there is no evidence that his lower back symptoms would have
arisen spontaneously. Dr. Froh, the defendants’ expert, testified that he
didn’t know if absent the accidents either the degenerative condition in the
neck or lower back would have become symptomatic, and if they did, to what
degree. The evidence is that the degeneration in Mr. Johnson’s low spine is in
keeping with many individuals of the same age. All of the experts agree that
degenerative disc disease is common in individuals as they age, and is most
often asymptomatic without some trauma occurring. As stated earlier, Dr.
Freedman’s evidence is that it was likely that the lower back issue in 2008 was
likely an exacerbation of the ongoing lower back problems Mr. Johnson was
having as a result of the 2007 accident.

[58]        
In my view, the evidence establishes the probable cause of Mr. Johnson’s
ongoing neck, upper back and lower back pain is that the injuries he sustained
in the 2007 accident, and the 2008 accident to a lesser extent, exacerbated his
pre-existing asymptomatic degenerative disc disease. While there was risk to
the degenerative disc disease in his neck becoming symptomatic, the medical
evidence was that the lower back would likely not have become symptomatic
absent some trauma.

[59]        
Dr. Travlos’ evidence was that he did not know exactly when the neck
would become symptomatic and could not give an opinion regarding the severity
of any symptoms. It is clear from the expert evidence that the 2007 accident
caused a serious injury to the neck which has caused pain and suffering sooner,
more frequently and to a notably greater degree.

[60]        
It is apparent from the evidence that Mr. Johnson has returned to his
sporting activities and he has a strong work ethic. He is not a man to sit
around and he continues to be active despite the pain it causes him. Mr.
Johnson’s evidence is that he will continue to work at Ocean Concrete until he finds
something more suitable despite the increase in symptoms he has from the
physical aspects of the job. As well, he will continue to engage in whatever
sports he can, knowing he will pay for it.

[61]        
Mr. Johnson’s evidence is consistent with the medical opinions. For
example, Dr. Froh’s opinion is that Mr. Johnson will not harm himself with
high demand activities; however, it will likely result in increased pain and
symptoms.

[62]        
In my opinion, Mr. Johnson’s neck symptoms fall within the crumbling
skull rule enunciated in Athey, and any award must reflect that. However,
I am of the view, the defendants are liable for his lower back symptoms even
though they may be more than severe than expected due to his pre-existing
condition. The evidence of the experts is that many individuals have
degeneration in their spines without any symptoms and that the degeneration in
Mr. Johnson’s lower back was similar to other individuals of his age.
There is no evidence that his lower back would have become symptomatic absent
the 2007 accident. Accordingly I have concluded that his lower back symptoms
fall within the thin skull rule enunciated in Athey.

Non-Pecuniary Damages

[63]        
Mr. Johnson and defendants have provided me with a number of cases to assist
in determining the appropriate award for pain and suffering. Mr. Johnson
submits that an award for general damages of $90,000 is appropriate, and that
the range is $70,000 to $90,000. The defendants submit that their authorities
support an award for general damages in the amount of $40,000, after taking
into account Mr. Johnson’s pre-existing condition. I have considered the
authorities presented by the parties. As in most cases, there are aspects of those
decisions which are helpful, but they also have features which distinguish them
from this case.

[64]        
In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, the court noted
that a non-pecuniary award will vary from case to case to meet the specific
circumstances of each case, and set out the factors to be considered in making
such an award as follows:

The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:

(a) age of the
plaintiff; 

(b) nature of
the injury; 

(c) severity and
duration of pain; 

(d) disability; 

(e) emotional
suffering; and 

(f) loss or
impairment of life; 

I would add the following factors,
although they may arguably be subsumed in the above list:

(g) impairment
of family, marital and social relationships;

(h) impairment
of physical and mental abilities;

(i) loss of
lifestyle; and

(j) the plaintiff’s stoicism (as a factor
that should not, generally speaking, penalize the plaintiff: Giang v.
Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[65]        
The defendants rely on McArthur v. Hudson, 2012 BCSC 1293; Tsang
v. Ter Borg, 2012 BCSC 1249; Carter v. Zhan, 2012 BCSC 595; Rhodes
v. Bigger, 2010 BCSC 762; Gilmour v. Machibroda, 2008 BCSC 260; Read
v. Marques, 2003 BCSC 167; Hosie v. Wilson, [1997] B.C.J. No. 2218
(S.C.), to support their assertion that the appropriate award for general
damages is $40,000, after taking into account Mr. Johnson’s pre-existing
condition. The defendants’ cases are predicated on their argument that the
injuries caused by the accidents are largely resolved except for occasional flare-ups,
and that the accidents did not cause the ongoing lower back pain. In my view,
the evidence does not establish that Mr. Johnson has recovered from his injuries
to that extent. As well, as set out earlier, the evidence establishes that the
likely cause of the ongoing lower back pain are the injuries sustained in the
accidents which rendered his asymptomatic condition symptomatic.

[66]        
In some of the cases referred to there were issues about the plaintiff’s
credibility. The defendants in this case do not take issue with Mr. Johnson’s
credibility. They point to the fact that he is not a good historian, but do not
suggest he is not suffering the symptoms he complains of.

[67]        
Mr. Johnson relies on MacKenzie v. Rogalasky, 2011 BCSC 54; Gold
v. Joe, 2008 BCSC 865; Kaleta v. MacDougall, 2011 BCSC 1259; Neumann
v. Eskoy, 2010 BCSC 1275; and Peers v. Bodkin Leasing Corp., 2012
BCSC 271, to support his assertion that the appropriate award for general
damages is $90,000. The awards for general damages in the cases relied upon by Mr.
Johnson range from $80,000 to $100,000.

[68]        
Having considered the extent of the injuries, the fact that the symptoms
are ongoing five years after the accident with little improvement, the guarded prognosis
for full recovery, as well as the authorities I was provided, I am of the view
that the appropriate award for non-pecuniary damages would be $90,000 if the
accidents were the only cause of Mr. Johnson’s ongoing symptoms. However, given
the evidence that Mr. Johnson was likely to have suffered some neck symptoms
from his degenerative condition within 3 to 10 years, that award should be
reduced by 10% to $81,000.

Past Loss of Wages

[69]        
The past loss of wages has been agreed to in the amount of $18,318 for
the period from December 17, 2007, to June 2008. At that time, Mr. Johnson
returned to work at Summit.

Loss of Past Income Earning Capacity

[70]        
Mr. Johnson is advancing a claim for past and future diminished income
earning capacity. Mr. Johnson claims $44,766 for past loss of income earning
capacity. He says, on all the evidence before the court, that he would have
obtained full-time employment by approximately June 1, 2011, in and around the
time his severance pay from Summit expired.

[71]        
In Smith v. Knudsen, 2004 BCCA 613, the court confirmed the
approach to be taken to hypothetical events such as loss of opportunity for
past earnings and loss of opportunity for future earnings. A plaintiff must
prove that an injury had an effect on his ability to earn income on a balance
of probabilities, but once that has been established, hypothetical events need
not be proved on a balance of probabilities. Rather, they are to be given
weight based on their likelihood.

[72]        
The defendants assert that Mr. Johnson has not suffered any loss of
wages since June 2008 as a result of any of the injuries he suffered in the
accidents. They admit that Mr. Johnson has earned less income over the past two
years as a result of his layoff from Summit but say that is not the fault of
the defendants. Mr. Johnson gave evidence regarding an extensive job search
without success. The defendants submit his lack of success is due to his age
and lack of education, and has nothing to do with the injuries he suffered in
the accidents.

[73]        
The evidence is that Mr. Johnson returned to work full time at Summit by
June 2008. His work absences between his return to work and his layoff in 2011
were similar to his pre-accident work absences.

[74]        
When he received his notice of layoff, Mr. Johnson decided to pursue a career
as a driver in the movie industry. As a result of his decision, he took some
courses and joined the union. It was not until the end of 2011 that Mr. Johnson
realized it was unlikely he would be able to get full-time hours at the job due
to his lack of seniority. Mr. Johnson then went on to find new employment with
Ocean Concrete. He is making more per hour than he was making at Summit. There
is no evidence that he has missed any time from work. He suffers increased
discomfort, but I have reflected that by making an award of non-pecuniary
damages at the higher end of the range.

[75]        
Mr. Johnson adduced evidence from Brian Parsons, a fellow worker at
Summit, who was able to find full-time work to support his contention that he
would have been able to find full-time work as of June 2011. However, Mr.
Parsons is 30 years old and has finished high school and some college
education. Mr. Parsons took some part-time truck driving jobs which involved
very heavy work moving containers prior to obtaining his current position.

[76]        
In my view, Mr. Johnson’s argument that he would have been employed full
time as of June 2011does not take into account Mr. Johnson’s evidence that his
plan was to be a driver in the movie industry and it was not until late 2011 when
he realized that job would not provide him with sufficient income due to his
lack of seniority. As well, he testified about a run around with the union
which resulted in a delay in his starting to work in the film industry.

[77]        
The evidence is that Mr. Johnson has been diligent in attempting to find
new employment following his layoff from Summit. The defendants argue that the
reason he has been unsuccessful is due to his age, lack of education,
pre-existing health issues and wage requirements.

[78]        
However, the defendants’ argument in that regard is not supported by the
evidence. The evidence is that there are many short haul truck jobs in the Lower
Mainland. Mr. Johnson gave evidence that he did not pursue some job opportunities
because they would be too physical or too stressful and he did not think that
he would be able to handle them. Although he eventually obtained a position at
Ocean Concrete, there were other positions, such as being a fuel truck driver,
which he did not pursue due to his neck and back problems. His evidence is that
he did not realize the job at Ocean Concrete would be as physical as it is.

[79]        
In my view, Mr. Johnson has established a likelihood of a past loss of
capacity to earn income. However, he has not established that the period to
time which should be considered is from June 2011.

[80]        
Having considered all of the evidence, including the fact that some of
his neck symptoms could have developed as early as 2010 and the fact he pursued
a career as a driver in the film industry until the end of 2011, I am of the
view that the amount of $10,000 should be awarded for loss of past earning
capacity.

Future Loss of Income Earning Capacity

[81]        
I turn next to the issue of future loss of earning capacity. Mr. Johnson
advances a claim for $225,000 under this head of damages.

[82]        
In Perren v. Lalari, 2010 BCCA 140, Garson J.A. noted that the
first inquiry in dealing with a claim of this nature is whether there is a
substantial possibility of future income loss, stating at para. 30:

Having reviewed all of these cases, I conclude that none of
them are inconsistent with the basic principles articulated in Athey v.
Leonati, [1996] 3 S.C.R. 458, and Andrews v. Grand & Toy Alberta
Ltd., [1978] 2 S.C.R. 229. These principles are:

1. A future or
hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation [Athey at
para. 27], and

2. It is not loss of earnings but,
rather, loss of earning capacity for which compensation must be made [Andrews
at 251].

[83]        
Garson J.A. noted that a plaintiff must always prove that there is a
real and substantial possibility of a future event leading to an income loss
prior to an assessment of the loss being undertaken.

[84]        
In Gregory v. Insurance Corporation of British Columbia, 2011
BCCA 144, the court discussed the assessment of an award for a loss of future
income as follows:

32        In my view comparator
cases are of limited utility in the assessment of awards for future losses,
generally. It is well settled that an individual’s earning capacity is a
capital asset: Parypa v. Wickware, 1999 BCCA 88 at para. 63. An award
for future loss of earning capacity thus represents compensation for a
pecuniary loss. It is true that the award is an assessment, not a mathematical
calculation. Nevertheless, the award involves a comparison between the likely
future of the plaintiff if the accident had not happened and the plaintiff’s
likely future after the accident has happened: Rosvold v. Dunlop, 2001
BCCA 1 at para. 11; Ryder v. Paquette, [1995] B.C.J. No. 644
(C.A.) at para. 8. The degree of impairment to the plaintiff’s earning capacity
depends upon the type and severity of the plaintiff’s injuries and the nature
of the anticipated employment at issue.

33        In valuing the award,
the judge must consider the likely duration of the plaintiff’s prospective
working life and must account for negative and positive contingencies which are
unique to each case. The final award must be fair and reasonable in all the
circumstances. This assessment requires a very fact-intensive, case-specific
inquiry. I am persuaded by what Macfarlane J.A. said in Lawin v. Jones,
98 B.C.L.R. (2d) 126, [1994] B.C.J. No. 2107 at para. 35, about the lack of
utility in comparisons to other cases:

[G]iven the fact that we cannot foresee
the future, it is impossible in a case like this to find any comfort in resort
to other cases where the future may be more predictable. Judges will differ,
perhaps widely, in making assessments in cases which have been said to depend
on what may be seen in a crystal ball. What is certain is that a trial judge
who hears and observes the witnesses is in a much better position than an
appellate judge to come to a conclusion as to what is fair and reasonable in
the circumstances. …

[85]        
Mr. Johnson asserts that he has demonstrated there is a real and
substantial possibility of a future event leading to an income loss. He says
based on the expert evidence, it is apparent he has functional impairments
which will likely impact his ability to continue to perform the physical
aspects of his job over time. He points to the fact that Dr. Hamm, a specialist
in occupational medicine, and Louise Craig, a functional capacity evaluator,
both concluded that as a result of his neck and back problems he has diminished
capacities.

[86]        
Ms. Craig opined that Mr. Johnson was limited by symptom aggravation for
sustained reaching and sustained sitting. His lift and carry capacity is
limited to the low-mid range which is not a full functional match for short haul
truck driving. Dr. Hamm diagnosed Mr. Johnson with post traumatic
mechanical neck and back pain with radiation to the hips and recent left
shoulder pain. Dr. Hamm noted that Mr. Johnson was able to sustain full-time
work as a semi-truck delivery driver after the 2007 accident until his layoff,
but was of the opinion it was unlikely he would have been able to continue to
do so up until the age of 65 because of his ongoing symptoms, including a
problem with his left shoulder. Dr. Hamm’s opinion is that Mr. Johnson’s
career as a full- time heavy delivery truck driver will likely be shortened by
five to six years.

[87]        
It is clear that some of Mr. Johnson’s present complaints, including his
increased symptoms from prolonged sitting, are a result of his lower back
problems.

[88]        
Given the expert evidence that Mr. Johnson’s back and neck problems are
chronic and the guarded prognosis, I find he has established there is a real
and substantial possibility he may not be able to continue in his job which
would lead to an income loss.

[89]        
Turning next to the assessment of his loss, it is my view that since Mr. Johnson
is continuing to work, the earnings approach is not appropriate, and the
capital asset approach is more appropriate. In Perren v. Lalari at para.
11, the court confirmed that the approach to be taken for a future loss of
earning capacity in situations where the loss, though proven, is not measurable
in a pecuniary way is the one set out in Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353 (S.C.) at p. 4:

The means by which the value of the lost, or impaired, asset
is to be assessed varies of course from case to case. Some of the
considerations to take into account in making that assessment include whether:

1.         The
plaintiff has been rendered less capable overall from earning income from all
types of employment;

2.         The
plaintiff is less marketable or attractive as an employee to potential
employers;

3.         The
plaintiff has lost the ability to take advantage of all job opportunities which
might otherwise have been open to him, had he not been injured; and

4.         The
plaintiff is less valuable to himself as a person capable of earning income in
a competitive labour market.

[90]        
In conducting the analysis under this head the court then has to
consider the contingences, both positive and negative, which are applicable in
arriving at a final sum.

[91]        
In my view, Mr. Johnson has established that there is the possibility he
will not be able to continue at the physical job he is doing. As well, he has
established that he has been rendered less capable overall from earning income
from all types of employment, he is less marketable and attractive as an
employee, and he may not be able to take advantage of all job opportunities. As
well, it was evident from his testimony, that Mr. Johnson is less valuable to himself
as a result of his diminished capacities.

[92]        
However, there are other contingencies to be factored in. As stated
earlier, it is likely that Mr. Johnson would have started to have neck symptoms
regardless of the accident which would likely have limited his ability to work
at physical jobs. Mr. Johnson does not claim that the left shoulder injury,
referred to by Dr. Hamm as being one of the limiting factors, was caused by the
accidents. To the contrary, he asserts that the left shoulder issue has
resolved. However, it is my view, that part of the period of time that Dr. Hamm
has suggested he would not be able to work must be attributed to those other
factors.

[93]        
The evidence is that Mr. Johnson is able to perform his job currently,
and he is earning more per hour than he was at Summit. His evidence is that he
takes all shifts that are available and is anticipating additional shifts
coming available this fall and winter.

[94]        
Having considered all of the evidence, including the fact that some of
his loss of income earning capacity is due to factors unrelated to the injuries
sustained in the accident, it is my view that the appropriate award for future
loss of earning capacity is $75,000.

Cost of Future Care

[95]        
Mr. Johnson is advancing a cost of future care for one-time costs and
costs for a 10-year period after the trial in the amount of $40,207.39.

[96]        
Cost of future care is established if there is a medical justification
for the claim, and the claim is reasonable: Aberdeen v. Zanatta, 2008
BCCA 420 at para. 42.

[97]        
The defendants submit that any future expenses are likely related to Mr. Johnson’s
degenerative condition and he would have incurred future expenses in any event.
The defendants assert that it is likely he would have been symptomatic between
2010 and 2017, so any costs beyond that time frame ought not to be allowed as
it would put him in a better position than he would otherwise have been.

[98]        
In any event, the defendants say that the evidence does not support the
need for psychological counselling given the evidence given by Dr. Wild, a
psychologist who saw Mr. Johnson on two occasions. As well, the defendants
point to the fact that Mr. Johnson’s own expert, Dr. Kendall, did not agree
with the need for ongoing physiotherapy.

[99]        
The defendants say that the recommendation for an exercise program or
gym pass is one that duplicates ongoing advice from his cardiologist that he
must exercise for his heart and is not new because of the accidents. The
request for the compensation for golf carts should be denied because Mr.
Johnson has to use golf carts as a result of his lower back problems which the
defendants say was not caused by the accidents.

[100]     The
defendants submit that the recommendation for vocational counselling is one
that Mr. Trainor, the vocational rehabilitation consultant, said he would
recommend to someone in Mr. Johnson’s position even if he had not been injured.
As such, the defendants argue Mr. Johnson would be put in a better position if
the defendants were ordered to pay that amount.

[101]     Mr.
Johnson claims $2,450 for psychological counselling on the basis of Dr. Freedman’s
recommendations. However, Dr. Wild’s opinion is that there is no indication
that Mr. Johnson thinks of the motor vehicle accidents as a significant
emotional trauma. In her opinion, Mr. Johnson presented with chronic pain and
there were no indications that emotional factors play a role. She does not recommend
further psychological counselling. Therefore, Mr. Johnson has not established
this is an appropriate award under this head of damages.

[102]     It is
clear that Mr. Johnson does get some relief from physiotherapy treatments and
they are recommended by his family doctor. In the circumstances, part of the
claim in that regard should be granted. A reduction in the claim under that
head takes into account that some of the physiotherapy would likely have been
needed in any event due to his prior degenerative condition. In terms of the 24
sessions he is claiming for $1,320, I am of the view that should be reduced by
10% to the amount of $1,188. In my view, Mr. Johnson should also be
awarded some amount for vocational counselling. The amount claimed of $900 is
appropriate.

[103]     Mr.
Johnson is also seeking an award of annualized care costs in the amount of $4,448
per year for 10 years. The annualized costs are as follows:

[104]     Using a
multiplier provided by Mr. Benning, an economist, Mr. Johnson says for a 10
year period the appropriate award is $35,831.79.

[105]     However,
there should be some reduction to that amount for his pre-existing degenerative
condition and the fact that he needs to exercise for his heart condition. As
well, there is insufficient evidence to justify a yard and home maintenance award
in the amount claimed. In my view, having considered all of the evidence, I am
of the view that the appropriate award for annualized costs for a 10 year
period is $25,000. The total award for future care for both one-time and
annualized expenses is the amount of $27,088.

Special Damages

[106]     Mr.
Johnson claims the amount of $4,406.26 for special damages. The defendants
accept the items being claimed, except for the cost of new pillows, some
physiotherapy in May 2011 which was recommended for his left shoulder, and the
MRI which was conducted in October 2010.

[107]     However, the
evidence is that the pillows assisted Mr. Johnson with pain management. In
2011, the physiotherapist treated his neck and lower back as well as his
shoulder so some amount should be allowed. I am of the view that appropriate
amount under that head is $60.

[108]     The second
MRI was performed at the request of Mr. Johnson’s lawyer. That should more
properly be billed as a disbursement as there was no medical requirement for
it: Ward v. W.S. Leasing Ltd., 2007 BCSC 877.

[109]     Accordingly,
I am reducing the special damages by the amount of $1,850. Mr. Johnson is
entitled to $2,556.26.

Conclusion

[110]     In
summary, I have awarded the following amounts:

·      
Non-pecuniary damages – $81,000

·      
Past loss of income – $18,318

·      
Past and future loss of income earning capacity – $85,000

·      
Future cost of care – $27,088

·      
Special damages – $2,556.26

·      
Total – $213,962.26

[111]     I will
leave it to the parties to deal with any tax implications. If they cannot agree,
they are liberty to make submissions. Mr. Johnson is entitled to pre-judgment
interest on both the past loss of income and the special damages. As well, Mr. Johnson
is entitled to his costs at Scale B, subject to submissions.

“Gerow
J.”