IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130222

Docket: 44893

Registry:
Kamloops

Between:

Harjiv Singh
Sekhon

Plaintiff

And

Dung Van Nguyen and
Manjit Gill

Defendants

Before:
The Honourable Madam Justice Ross

Reasons for Judgment

Introduction

[1]            
The plaintiff, Harjiv Singh Sekhon, claims damages arising from a motor
vehicle accident that occurred on March 18, 2006. Mr. Sekhon was 14 years
old at the time of the accident. He was a middle seat passenger in a van driven
by his aunt, Manjit Gill, that was struck from behind by the vehicle driven by
the defendant, Dung Van Nguyen.

[2]            
Liability has been admitted by Mr. Nguyen. The action against
Manjit Gill has been discontinued. To be determined is the quantum of damages
for non-pecuniary loss, past wage loss, past loss of opportunity to earn wages,
cost of future care, future loss of income earning capacity and special
damages.

The Facts

Prior to the Accident

[3]            
Mr. Sekhon is presently 21 years old. He was born in Surrey,
British Columbia. He grew up in Merritt, where he lived with his family until
August 2009. Prior to the accident, Mr. Sekhon was by all accounts, a
healthy active young man. He had no health problems, and no physical
restrictions. He enjoyed participating in many sports including hockey,
swimming, mountain biking, basketball. He had just started rugby prior to the
accident.

[4]            
At the time of the accident, Mr. Sekhon had been a member of a folk
dancing team for about three years. The team practiced two to three times a
week, more before performances. They performed at various local events
including the Taste of India, rotary functions and at some weddings.

[5]            
Mr. Sekhon was responsible for a number of chores at the family
home including shovelling snow, mowing the lawn, washing his parents’ vehicles,
vacuuming, cleaning his room and helping out around the house.

[6]            
His father owned a Dairy Queen in Merritt and Mr. Sekhon had
started working there part-time in January 2006. He was working 15 to 20 hours
a week doing cooking and cleanup duties at the time of the accident.

[7]            
Mr. Sekhon testified that from the time he was a young child cars
were his passion. He started working on cars at a very young age. He stated
that it was his dream to open a shop that specialized in customizing cars.

[8]            
Mr. Sekhon stated that he was an average student prior to the
accident except for difficulties he had with mathematics. His transcripts
reflect grades that were generally in the C to B range. Mr. Sekhon
received consistently high marks in automotive and technology related courses. It
is clear that he struggled with mathematics. Mr. Sekhon failed Math 9 in
the semester prior to the accident. He achieved a bare pass – 51% in Math 10.
He failed Math 11 in Grade 11 and managed a bare pass of that course in Grade
12.

The Accident

[9]            
The accident occurred on March 18, 2006. Mr. Sekhon was in Surrey visiting
his extended family. He was a passenger in a minivan driven by his aunt, Manjit
Gill. The van had stopped for a yellow light when it was hit from behind by a
Honda Odyssey driven by the defendant, Dung Van Nguyen. The impact drove the
vehicle forward into the intersection. Mr. Sekhon was wearing his seatbelt
at the time of the collision.

[10]        
He stated that following the accident he returned to his aunt’s house where
he relaxed and watched a movie. He returned to Merritt either that evening or
the next day. He stated that starting a couple of days after the accident, he
began to suffer from neck and back stiffness and pain and headache.

After the Accident

[11]        
Mr. Sekhon attended on Dr. McLeod, his family physician, after
he returned to Merritt, complaining of neck and back pain and stiffness and
headaches. Dr. McLeod recommended that he take massage therapy. Mr. Sekhon
attended at the Nicola Valley Massage Therapy Clinic on March 22, 2006 for a
series of treatments ending in May 2006. He returned for several treatments in
mid-2007.

[12]        
Mr. Sekhon testified that he started having headaches two or three
days after the accident. He stated that the headaches started at the back of
his neck and sometimes involved his temples and the front of his head. He said
that these headaches would occur a few times a week. He described their
intensity at one to two on a scale of zero to ten. He stated that these headaches
responded to Advil and did not interfere with his activities. It was his
evidence that the headaches declined in frequency until August 2009. By August
2009, he experienced headaches perhaps twice a week or twice in two weeks.

[13]        
Mr. Sekhon described neck pain and stiffness that also commenced a
couple of days after the accident. He stated that he experienced steady
improvement over the course of the next several months. It was his evidence
that he continues to have intermittent neck symptoms. Activities that aggravate
his neck include working on his car, reading, dirt biking, hockey and
basketball. He stated that massage therapy helps that day, but does not provide
any lasting relief.

[14]        
Mr. Sekhon testified that he experienced pain in his mid to lower
back, also commencing about two days after the accident. At first the pain was
continuous, but it gradually improved so that within a few months after the
accident it was only intermittent. He stated that he continues to experience
intermittent back pain. The back pain is aggravated by lifting heavy objects,
standing for long periods and various sporting activities such as hockey,
basketball, dirt biking and water sports.

[15]        
Mr. Sekhon stated that he had received some physiotherapy
treatments shortly after the accident. The therapist showed him some stretches
and exercises that he was to do. He has continued to do the stretches he was
taught. He stated that he has no plans to go back for more physiotherapy.

[16]        
He stated that following recommendations from Dr. McLeod, he did
exercises at the gym following the accident. It was his evidence that although
he continues to go to the gym, the exercise has not helped at all. He continues
to use the gym to stay in shape and for general health.

[17]        
Dr. McLeod completed a CL19 report for ICBC on November 20, 2008.
In that report he identified the subjective complaints as headache, neck and
lower back pain. On examination, he noted palpatory tenderness and limited
range of motion in the cervical and lumbar spine. He described Mr. Sekhon’s
current work duties as heavy and stated that he had been unable to work full
duties full-time from the date of the accident to May 15, 2006.

[18]        
Mr. Sekhon completed high school. His injuries did not cause him to
miss school except in a limited way for massage therapy or medical
appointments. As noted above, he continued to struggle with mathematics, but he
acknowledged that this was not related to the accident.

[19]        
Mr. Sekhon testified that he required accommodation in his physical
education and automotives classes. He stated that he was not able to do a
number of the activities such as running and gymnastics in physical education.
It was his evidence that he had problems with the requirements of the
automotives classes as well. For example, he stated that he had difficulty
rotating tires, installing a box on his teacher’s truck, working in a cramped
position, doing anything that required lifting heavy objects. It was his
evidence that his automotives teacher “cut him a lot of slack” and accommodated
his physical difficulties.

[20]        
Mr. Sekhon stated that it had been his intention to apply to the Automotive
Service Technician program at Thompson Rivers University (“TRU”). The first
stage of this program required completion of 1,500 hours of work under the
supervision of a mechanic. Mr. Sekhon stated that he did not believe that
he would be able to do a full day’s work as a mechanic given the pain that he
experienced doing even small things involving vehicles.

[21]        
After graduation Mr. Sekhon moved to Kamloops to enroll in a two year
business management diploma program at TRU. It was his evidence that at this
point his headaches increased in frequency and intensity. He testified that
from August 2009 on, he experienced headaches every day, starting with a one to
two intensity when he woke up and increasing in severity as the day progressed.
He stated that he frequently experiences headaches in the four to five range,
perhaps three or four times a week and from time to time he has experienced
headaches in the seven to eight range of intensity that cause him to spend the
entire day in bed in the dark.

[22]        
It was his evidence that, since August 2009, these headaches have
interfered with his activities. He stated that the headaches interfered with
his ability to read, study, concentrate and listen in class. He stated that the
lights in the classroom caused the headaches to worsen as did classroom
discussion. He stated that the headaches cause fatigue and loss of motivation. He
stated that he takes strong prescription medication for the headaches, but that
they are not relieved by even the strong medication. Finally he stated that he
has experienced difficulty falling asleep and having an uninterrupted sleep.

[23]        
The diploma program Mr. Sekhon enrolled in requires completion of
60 credits. This would entail two years being enrolled in five courses each
semester. Mr. Sekhon has still not finished his diploma. He has not
registered in five courses each semester. In addition, he has had trouble with
a number of the courses. In part this trouble arises from his difficulty with
mathematics. Mr. Sekhon testified that part of the problem is related to
headache and neck pain that interfere with his ability to read, study, attend
class and complete assignments.

[24]        
Mr. Sekhon still needs 18 more credits to complete his requirements.
He stated that he plans to complete his diploma, which will likely take two
more semesters.

[25]        
Commencing in February 2010, Mr. Sekhon took the B.C. Real Estate
course. This program is offered as distance education. There are 20 modules.
Readings and assignments are provided. Once the student reads the chapter and
does the worksheet for that module, the assignment for the module is completed
online. It is graded. If the student fails the assignment is repeated until the
student passes. Then there is a final exam which is to be written in person.

[26]        
Mr. Sekhon completed the modules, but has not succeeded in passing
the final exam, despite three attempts. He stated that there was a significant amount
of math involved and he had problems with that. There was also a considerable
amount of reading, perhaps 400 pages in total, with problems and studying. He
stated that his headaches interfered with his ability to do this work, just as
they did with his schoolwork.

[27]        
Mr. Sekhon has continued to work part-time at Dairy Queen. He
continued in the position at the Merritt Dairy Queen that he had held prior to
the accident until he moved to Kamloops. Then following his move to Kamloops, he
settled at the Dairy Queen in Kamloops.

[28]        
It was his evidence that he “guessed” that he missed about one and a
half months of work at Dairy Queen following the accident. He guessed that he
returned to work in May or June 2009. He stated that following his return he
probably returned to working 15 to 20 hours a week, but probably worked less
than that. He stated that following his return to work he had difficulty with
lifting heavy objects, standing for long periods and headaches.

[29]        
Mr. Sekhon was also employed at NL Broadcasting, the local radio
station. In September 2006, he started managing the board during broadcasts of
hockey games. He continued to work there until Grade 12. The work involved
sitting operating the computer for the duration of the pre-game and hockey
broadcast.

[30]        
Mr. Sekhon was employed at Tolko Industries Ltd. from October 2007
to July 2008. His work involved weekend cleanup and spark watch with welders.
He worked one to two shifts a week. It was his evidence that the physical labour
was problematic for him. He stated that he quit this job because the physical
work was difficult because of his injuries and because he found the pressure to
finish the work assignments difficult. His records of employment from Tolko
state that he was not available for work after July 19, 2008.

[31]        
Mr. Sekhon started at the Kamloops Dairy Queen in October 2009. His
duties were similar to those at the Merritt operation. He was working three to four
days a week, five to six hours per shift. He stated that he continued to
experience the same problems as he described at the Merritt Dairy Queen following
his return to work after the accident.

[32]        
In April 2011, the manager left and Mr. Sekhon took over the job of
managing the operation. This was essentially a full-time position requiring five
to eight hours a day. He was responsible for all aspects of running that
facility. He then cut back on his duties at Dairy Queen in the fall when school
resumed, but still works there five to ten hours a week.

[33]        
In October 2011, Mr. Sekhon started part-time work at TD Canada
Trust. He started off working 20 hours a week. He worked more time in the
summer of 2012. In the fall of 2012 he asked to have his hours cut back to 10
hours a week due to school. In his evidence he stated that it was hard to work
with headaches; however, this was not the reason that is noted on the document
requesting the change, or that Mr. Sekhon gave to his supervisor. He
stated that he had opportunities for promotion at the bank.

[34]        
About two years ago Mr. Sekhon started a website selling various
products and performance parts for vehicles. He also provides services in the
installation of the products. No documents were in evidence with respect to the
operation of this business. Mr. Sekhon stated that he probably earned
about $15,000 to $20,000 profit in the business since it started. Mr. Sekhon
continues, as well, to do work on his own car and small jobs on vehicles for
friends and family.

[35]        
At present, Mr. Sekhon takes a number of prescription medications
for pain. He had one experience with a cortisone injection for a severe
headache. It was his evidence that the injection did not help and left his neck
painful at the injection site. He does not intend to repeat that treatment.
Mr. Sekhon stated that he may consider Botox injections as recommended by
Dr. Robinson.

Expert Reports

[36]        
A number of expert reports were filed as detailed below. None of the
experts were called to testify or required for cross-examination.

Dr. D.W. Boyce

[37]        
Dr. Boyce is an orthopedic surgeon who conducted an independent
medical examination of Mr. Sekhon on December 8, 2008. His report states
in part:

… He did not recall having any immediate symptoms, however,
the next day his neck and low back became painful and stiff. This seemed to
gradually worsen over a few weeks and then seemed to subside after a few
months. However he has had persistent headaches which are his main current
complaint. He has at least one a week. He has aching in the temple region which
seems to be helped by the use of Advil and/or Tylenol as well as Naprosyn.

He stated that his neck has settled gradually, specifically
the pain and stiffness, although he still has pain extending down his back if
he moves his neck too quickly into a flexed position. He still has lower back
discomfort which is across the lower lumbar region. He stated that his shoulder
blades bother him at times when he is doing any heavy lifting or with
repetitive use.

He has returned to an active lifestyle which includes
workouts in a gym. He stated he usually uses a treadmill and/or bike and then
moves to weights, working mostly on his chest and shoulders.

. . . .

He was in no obvious distress during the examination. He
moved easily from sitting to standing and onto the examining table being able
to move from the prone to supine position without pain. He had normal range of
motion of his neck with only subjective discomfort on full flexion of the neck.
He stated that rotation towards the left seemed to cause tightness in the upper
paraspinal musculature as well. He had mild tenderness on deep palpation in the
lumbar spine region. He had no abnormality of the motor, sensory and reflex
exam in the upper or lower extremities. There was basically a normal
musculoskeletal exam of the upper and lower extremities including all joints.
He had no tension signs with normal straight leg raising.

. . . .

This patient was involved in a motor vehicle accident on the
above mentioned date in which the vehicle he was a passenger in was rear-ended
and he suffered a strain to his cervical and lumbar spine, specifically the
ligamentous and tendinous soft tissues in the paraspinal area.

He has had a delayed convalescence with full recovery being
expected at this time, being over 2 years since the motor vehicle accident.

Today he has been reassured that his soft tissue injuries
will likely fully subside and he should have no long term sequelae.

At this point in time he could optimize his conditioning
which would be very helpful with emphasis on core strengthening, with subprime
core strength being identified during the physical exam. An appropriate routine
could be set up for him by a trainer or if he is having difficulties being
compliant with this he could join a class in pilates or yoga in the community.
I would recommend that he attempt to play a sport, as he plans, so that he can
work on his overall cardio conditioning. He could also consider swimming as a
regular activity.

I have discussed with him the need for regular breaks during
his school and work shifts to work on his neck flexibility which will help to
optimize his range of motion and should help to minimize his symptoms.

Based on a review of the history
as well as the clinical findings today I see no reason for him to be concerned
about long term sequelae from the motor vehicle accident. I would recommend at
this time that he continue with activities as tolerated and attempt to return
to his pre accident functional level which would include both his work and
recreational interests. As mentioned, it would be key for him to work on his
core strengthening as well as a conditioning program which will optimize his
cardio and overall flexibility.

Dr. D.M. McLeod

[38]        
Dr. McLeod, Mr. Sekhon’s family physician, prepared a report
dated March 16, 2011 which states in part:

His injuries have certainly caused him to miss time from
employment and because of his employment requiring a lot of sitting in a chair
this will cause him problems that will progress into the future. He has a
partial disability but it seems to be quite permanent that he is not getting
over the lower back pain and some of the neck pain and headaches that he had
from the original injury.

The prognosis is guarded for him to be completely free of
this. The degree of injury is moderate and it does interfere with all his
recreational activities and with his future earnings because of the problem of
sitting in a chair and lower back pain interfering with his job and
concentration.

There was no pre-existing injury
and I don’t think there has been any acceleration of the condition due to other
problems. I think the problems that he has listed above are all from the MVA on
March 18, 2006 and his condition at the present time has been outlined above.

Dr. G. Robinson

[39]        
Dr. Robinson is a neurologist. He prepared a report dated June 27,
2011. The report states in part:

This young man was involved in a motor vehicle accident on
March 18, 2006. As a result of the accident he sustained soft tissue injury to
his neck and back. I do not believe that there was any damage to his nervous
system.

Headache related to the neck injury was present from the
outset. He recalls daily headache of a mild severity, which is consistent with
my review of his medical records. However, it was not until approximately 2
years later that his headaches became more severe.

He continues to have constant headache of at least a mild
severity. Headaches may be aggravated by school related stress, lack of sleep
and factors worsening his neck pain. He will frequently experience moderately
severe headache and occasionally will have headaches that will keep him from
being able to function.

When his headaches are moderately severe they do have
features of migraine. These include a throbbing quality, an increase with
activity such as bending, and the association of sensitivity to light and
sound.

I do not believe that there is any further investigation
would be helpful in understanding his headaches. Imaging with CT and MR
scanning of head and neck would undoubtedly be normal.

It is probable that he suffers from chronic posttraumatic
headache related to the motor vehicle accident of March 18, 2006. Headaches
were frequent from the outset and have worsened probably as a result of an
increase in school and work related stress that did not occur until after the
motor vehicle accident.

I believe that it is less likely that he has developed
migraine separate to his history of chronic posttraumatic headache. There
appears to be a minimal family history of headache suggesting that a genetic
predisposition does not exist.

From his account, and this is supported by the medical
records, he had the onset of headache in close temporal relationship to the
injuries sustained in the March 18, 2006 motor vehicle accident. From that date
forward he has continued to have headache with delayed worsening rather than
the appearance of a distinctly different headache disorder unique to his posttraumatic
headache.

Given the migrainous features of his moderate to severe
accident related headaches it is possible that he could respond to treatments
directed towards migraine. It is possible that triptan medications such as
sumatriptan (Imitrex) could be more effective in aborting his more severe
attacks than medications currently being utilized.

An additional approach would be to try daily preventative
migraine medications such as nortriptyline, nadolol or topiramate. These could
possibly reduce the frequency of his moderate to severe attacks. Botulinum
neurotoxin type A is another option that could be explored as a medically safe
means of reducing his headache disability.

Despite his accident related
symptoms he has been able to finish high school and the first two years of
university. I do not believe that his headaches, neck and back pain will worsen
further or have any substantial impact on his ability to pursue his chosen
career path.

Dr. Duncan Laidlow

[40]        
Dr. Laidlow is a specialist in physical medicine and
rehabilitation. He prepared a report dated August 15, 2012 which states in
part:

He did receive some massage therapy and physiotherapy and was
prescribed an exercise program. The exercises sound to have been those given
usually for mechanical lower back pain, but not a lot in the way of any
stretching to the upper body. Harjiv indicated to me that he did not find the
exercises to be helpful and so did not carry them on, on a regular basis.

The trend has been one of improvement, but he has still
continued to have symptoms. The headaches are predominately fronto-temporal in
nature and are aggravated by stress, prolonged positioning and prolonged
reading while relieved with relaxation efforts or Advil. They are not usually
associated with nausea, but can be associated with photophobia.

His lower back pain is variable and only comes on with
prolonged standing of five or six hours or sitting for more than one to two
hours. He finds it more difficult to come into an extension position rather
than going into a flexion position with the back. There is no radiating pain
down the legs nor is there any paresthesia or weakness associated with it.

His neck pain also is variable and tends to come on only when
he is looking down for long periods, such as while studying. There is no
radiation of pain into the arms nor any history of paresthesia.

. . . .

With respect to his headaches, I do understand that Harjiv
has seen Dr. Robinson, on the coast. I do not have Dr. Robinson’s
notes, but I would defer to his opinion regarding his headaches. To me it does
seem that Harjiv predominately has muscle tension contraction type headaches as
a source of his pain. They seem to be aggravated by stress and seem to be
present on a relatively persistent basis. There are some features suggestive of
some migraine component to it, as well.

With respect to the lower back discomfort, I feel he did
sustain a musculoligamentous strain to the lumbar spine of a Grade 2 level. As
a result of that strain he did develop myofascial tightness in the lumbar
region and still continues to have mild mechanical lower back pain at this
time. The L5-S1 slight prominence does not seem to be of significance to me and
is certainly not responsible for his symptoms at the present time.

With regard to his neck pain, I believe he did sustain a
musculoligamentous strain (Whiplash Associated Disorder Type II by the Quebec
Task Force criteria). As a result of this he has developed some myofascial
tightness in the neck and upper shoulder region and is experiencing some mild
mechanical pain in that area at this time. There is no evidence of any bony
injury and no evidence of any neurologic injury.

With respect to Harjiv’s current complaints, I do feel that
his current symptoms relate entirely to the motor vehicle accident of March 18,
2006. To my knowledge he had no similar symptoms prior to the accident and I am
not aware of any additional injury of significance. …

With respect to Harjiv’s symptoms, I feel that there may be
some room, even at this point in time, for some improvement primarily because
he still remains tight in the musculature of the upper shoulders and lower
back. I do not think that he has had a full program of stretching done on a
regular basis and as such, think it is reasonable to believe that he could make
improvements in his flexibility. If he does make improvements in his
flexibility, I think that his mechanical pain will be less than it is now.
Having said that, the fact that he continues to have pain at this point in time
makes it likely that he will still be prone to mechanical pain in the neck and
lumbar region into the future. …

Given his ongoing tendency toward mechanical pain in the neck
and lumbar region, it would be hard to be optimistic for him completing an
apprenticeship as a journeyman mechanic or working as a heavy duty mechanic.
…. I think it is possible that he could work in an office related occupation,
as he has essentially been doing that. ….

I do think that he should be able
to manage banking work or managing a small business. I do not feel he should be
capable of carrying out his education.

Non-Pecuniary Loss

[41]        
Mr. Sekhon seeks an award in the range of $70,000 to $75,000 for
non-pecuniary loss. Counsel notes that Mr. Sekhon was only 14 years old when he
was injured. He has suffered from headache, neck and back pain as a result of
the accident. It is submitted that the injuries have not resolved. Counsel
submits that at present Mr. Sekhon suffers from constant daily headaches,
chronic back pain which interferes with a number of his regular activities and
neck pain. He did not resume some activities such as the dance troupe
participation following the accident. His enjoyment and ability to participate
in other recreational activities is decreased. The injuries have caused problems
with focus, concentration, fatigue, motivation and sleep. Counsel cited Bancroft-Wilson
v. Murphy, 2008 BCSC 1035; Esau v. Myles, 2010 BCSC 43; Raun v.
Suran, 2010 BCSC 793; and Fennell v. Hiebert, 2012 BCSC 1086.

[42]        
The defendant accepts that Mr. Sekhon suffered injuries in the
accident, but submits that the gravity of those injuries, particularly at the
present, is much less than that claimed. Counsel submits that the
accomplishments, activities and lifestyle of Mr. Sekhon are at odds with
his professed disability. Counsel submits that the appropriate award for non-pecuniary
loss is $40,000, citing Henri v. Seo, 2009 BCSC 76; Dakin v. Roth,
2013 BCSC 8; Peterson v. Ram, 2008 BCSC 252; and Fifi v. Robinson,
2012 BCSC 1378.

[43]        
In this case it would have been of assistance to the court to hear viva
voce evidence from the medical experts with respect to Mr. Sekhon’s complaints
of headache. Dr. Robinson gave the opinion that all of Mr. Sekhon’s
headache complaints are the result of the motor vehicle accident. However, it
is difficult to understand how this could be so or what the causal mechanism is
said to be.

[44]        
As noted above, Mr. Sekhon testified that after the accident he
suffered from headaches that responded to treatment with Advil, that were one
to two in intensity on a scale of zero to ten. He had these headaches a few
times a week at first decreasing in frequency until August 2009. He stated that
the headaches did not interfere with his daily activities.

[45]        
By contrast Mr. Sekhon described headaches he experienced after August
2009 that differed profoundly in every respect. He stated that they now
occurred daily. He said that they were far more intense. He stated that they
interfered with his activities, leaving him unable to focus and concentrate. He
said they caused him to lose his motivation and to be unable to read and study.
While the earlier headaches responded to Advil, he said that the present
headaches are not relieved by even strong prescription medication.

[46]        
The headaches that Mr. Sekhon stated he experienced after August
2009 were of a fundamentally different character from those he described experiencing
in the period following the accident until August 2009. No plausible causal mechanism
has been proposed that would account for the dramatic escalation in quality and
quantity that he described. Dr. Robinson stated that the headaches have
probably worsened because of an increase in school and work related stress.
However, there is no evidence of any change in work related stress in August
2009 or indeed thereafter. While I accept that there may be an increase of
school related stress at TRU compared to high school, there would have been
some stress associated with school in the period from the time of the accident
until August 2009, particularly since Mr. Sekhon was, during that period,
struggling with several classes. Yet his evidence is that he did not experience
a headache of the intensity and character he describes in his evidence prior to
August 2009.

[47]        
There is another puzzling aspect of the evidence concerning headaches. Dr. Robinson
suggested that triptan medications prescribed for migraine could be more
effective in aborting severe attacks than the medications Mr. Sekhon was
currently utilizing. He suggested that a daily migraine prevention regime could
possibly reduce the frequency of moderate to severe attacks. Finally, he
suggested that botulinum neurotoxin type A was a medically safe option that
could reduce his headache disability. Dr. Robinson’s report is dated June
27, 2011. It would be reasonable to suppose that if Mr. Sekhon was
experiencing, on a daily basis, headaches of the severity and character he has
described, that he would try out Dr. Robinson’s suggestions to see if he
experienced some improvement. However, he did not.

[48]        
In my view, there has been a certain amount of exaggeration by Mr. Sekhon
with respect to his injuries. While corroboration is not required, I note that
there are many cases where Mr. Sekhon’s evidence is not corroborated by
independent evidence. For example, Mr. Sekhon testified that he required
accommodations in order to complete his high school automotive course and that
there were many activities in the class that he could not manage. Mr. Smith,
his teacher in those courses, had no such recollection. Mr. Sekhon testified
that he had to leave his part-time job at Tolko Industries because of his
physical limitation. His employment record states that he was no longer
available for work after July 19, 2008. He stated that he had told his
supervisor at TD Canada Trust about his headaches but she had no such
recollection.

[49]        
I am satisfied that Mr. Sekhon suffered soft tissue injuries to his
neck and back in the motor vehicle accident and that as a result he has
suffered from headache, neck and back pain. These injuries have gradually but
not completely resolved. The prognosis for complete recovery is guarded. I find
further that to the extent to which he has suffered from headaches of the kind
he described experiencing after August 2009, he has failed to meet the burden
to establish causation. I find that he has not suffered from headaches of the
frequency and intensity described in his testimony as occurring after August
2009 as a result of injuries suffered in the accident.

[50]        
The injuries have interfered with Mr. Sekhon’s enjoyment of many of
the activities he engaged in prior to the accident. However, he remains an
active young man, able to work, attend school and enjoy many recreational
activities.

[51]        
In all of the circumstances, I award $45,000 for non-pecuniary loss.

Past Wage Loss

[52]        
Mr. Sekhon claims the following with respect to past wage loss:

(a)      Wage
loss for the period March 18 to May 31, 2006 when he was unable to work due to
the injuries suffered in the accident. His hourly wage was $9 and he was
working 20 hours per week. He would have had no taxes deducted for the year.
This amounts to $1,980.

(b)      Wage
loss for the month of June 2006 when he was only able to work five hours per
week. This amounts to $607.50

(c)      Wage
loss for the period following June 2006. Mr. Sekhon submits that he would
regularly go home early because of his injuries following his return to work.
He estimated that this occurred once out of six shifts. It was submitted that
there is no way of calculating this loss with precision, but the estimate
advanced was $624, being two hours every sixth shift for one year.

(d)      Loss
for wages earned as an automotive tech apprentice. Mr. Sekhon submits that
but for the injuries suffered in the accident he would have entered the
automotive apprenticeship program at TRU in September 2009. Counsel submits
that he would have earned, on a conservative estimate, $84,411 from September
2009 to the date of trial as an apprentice. Mr. Sekhon has earned
$33,447.80 during this period. Accordingly, it is submitted that his loss is
$50,963.20, from which tax would have to be deducted.

(e)      In
the alternative, counsel submits that but for the accident, Mr. Sekhon
would have completed his diploma in two years and been available to work full-time
at TD Canada Trust from the date he was hired on October 28, 2011 to the date
of trial. The difference in earnings under this scenario is $15,647.35, before
deduction for tax.

[53]        
The defendant submits that there should be no award for past wage loss.
The defendant acknowledged that Mr. Sekhon was absent from his work for a
period after the accident, but submits that there is not sufficient evidence
that this absence was related to the injuries suffered. In addition, the
defendant submits that Mr. Sekhon has not established that he was unable
to undertake the apprenticeship program because of his injuries or that his
injuries are the reason Mr. Sekhon has taken longer to complete his
diploma.

[54]        
Mr. Sekhon testified that he was unable to return to work for a
period following the accident as a result of his injuries and that when he
first returned it was with reduced hours. This evidence is corroborated by a
document from his employer which confirms that he was absent following the
accident until May 31, 2006 and returned to work in June 2006 for five hours
per week until July 1, 2006 when he returned to 20 hours per week. I find that Mr. Sekhon
has established past wage loss in the amounts of $1,980 and $607.50.

[55]        
I find that Mr. Sekhon has not discharged his burden of proof with
respect to the past wage loss claimed for the period following June 2006.
First, with respect to the loss claimed for work at Dairy Queen following July
1, 2006, Mr. Sekhon’s evidence with respect to working the occasional
shorter shift because of his injuries was very vague and imprecise. However, Mr. Sekhon
testified that he was paid by the hour at Dairy Queen and that if he left early
from a shift his wages would reflect the reduced hours. Counsel suggested that
there was no way to quantify this alleged loss. However, the employer provided
a document that sets out the reduced hours worked in June 2006. I assume that
if Mr. Sekhon had worked shorter shifts on occasion following July 1, 2006,
this would have been reflected in the employer’s records. However, the letter
dated July 21, 2010 provided by the employer states only that Mr. Sekhon
returned to working 20 hours per week on July 1, 2006. I find that Mr. Sekhon
has not established past loss of wages from his position at Dairy Queen for the
period from July 1, 2006 to the present.

[56]        
The next loss claimed was for past loss of capacity to undertake the
automotive apprenticeship program. Mr. Sekhon testified that although
taking this program was his dream he did not enroll because of his physical
limitations, specifically his neck and back pain. I accept that Mr. Sekhon
suffers from pain; however, pain is not necessarily disabling.

[57]        
There is no medical evidence that Mr. Sekhon is unable to undertake
or complete the requirements of this program because of his injuries. The
closest to such an opinion is Dr. Laidlow who said it would be hard to be
optimistic about him completing the program. This is to be contrasted with the
opinion offered by Dr. Boyce that Mr. Sekhon would likely suffer no long
term sequelae from the accident. It should be noted that Dr. Boyce’s
examination occurred close to the time when Mr. Sekhon was applying to
TRU. Moreover, there is no suggestion in the history taken by Dr. Boyce
that Mr. Sekhon complained that he was experiencing disabling pain. In
addition, no functional capacity assessment was in evidence.

[58]        
Mr. Sekhon successfully completed automotive courses following the
accident. In his final school year he completed the body repair and finish and engine
and drive train auto tech courses scoring 81% and 86%. However, Mr. Sekhon
testified that he required significant accommodations during these courses.

[59]        
His instructor for those courses, Fraser Smith, testified that he
recalled no activity restrictions that he observed. He did not recall Mr. Sekhon
avoiding any physical tasks and he did not recall Mr. Sekhon making any
requests for accommodation for physical reasons. Mr. Smith acknowledged
that it was possible that such requests had been made that he did not recall
and that there were physical limitations that he does not recall. However, I
was struck with the detailed memory Mr. Smith has concerning Mr. Sekhon.
For example, he recalled Mr. Sekhon bringing his 1969 Camaro to school to
work on several projects. He recalled the genesis of this work in damage
another student had done to the door of the vehicle. He recalled Mr. Sekhon
as a polite well mannered student, a pleasure to teach, and a student who was
motivated when interested. He recalled that Mr. Sekhon was always
“wheeling and dealing” in stereos. I conclude that it is likely that Mr. Smith
would have recalled receiving requests for accommodation for physical
limitations from Mr. Sekhon. I believe that he would have recalled
observing significant physical limitations that interfered with Mr. Sekhon’s
ability to complete the requirements of the course.

[60]        
I have concluded that Mr. Sekhon has not established that he was
unable because of his injuries to undertake and successfully complete the
automotive apprenticeship program. Accordingly, I make no award for lost opportunity
to earn past wages in this regard.

[61]        
Mr. Sekhon testified that the injuries he suffered in the accident,
and most specifically the headaches, have interfered with his ability to read,
concentrate and study and as a result his completion of his diploma in business
management has been delayed. As noted above, I am satisfied that Mr. Sekhon
does continue to suffer from headaches caused by the accident to some degree
but not to the degree he claims. I have concluded that Mr. Sekhon has not
established that his injuries have been responsible for the delay in completion
of his program.

[62]        
Mr. Sekhon’s academic record from elementary and secondary school
shows a student who was not strong in academic courses. In addition, he had a
great deal of difficulty with mathematics courses. He is presently registered
in an academic program, which has a significant component of mathematics in
many of the courses. He has failed a number of these courses: Principles of Microeconomics,
Financial Accounting, Business Mathematics, Management Accounting, and Principles
of Macroeconomics. These results are not surprising given his long standing
struggles with mathematics. I do not think they can be attributed to the motor
vehicle accident. I note that with respect to the macroeconomics course,
Professor Pyne was asked if there was a component of mathematics required for
the course. His response was “it depends what you mean by math”. He noted that
Math 11 is a prerequisite for the course and that many students struggle with,
for example, the graphing required. Mr. Sekhon failed Math 11 on his first
try and on his second only managed a bare pass.

[63]        
I think that a major reason that Mr. Sekhon is not taking a full
complement of courses each semester is that he is very involved with other
activities. He has continued to work at Dairy Queen. In 2010, he completed the
real estate licence course, a substantial undertaking. Since October 2011, he
has been employed at TD Canada Trust. In addition, he operates his web based
business and continues to work on cars for friends and family.

[64]        
There is no medical evidence that supports the contention that Mr. Sekhon
would be required to modify his workload because of his injuries. Indeed, as
noted above, Dr. Boyce’s opinion is to the contrary as is Dr. Robinson’s.
Dr. Laidlow suggested that ergonomic adjustments would be helpful to Mr. Sekhon,
but did not suggest that Mr. Sekhon was not able to carry a full load at
school.

[65]        
Mr. Sekhon testified that he had complained of headaches at school
and work, and about the bright lights at school that increased his headaches. However,
neither Professor Pyne nor Whitney Johnston, Mr. Sekhon’s supervisor at TD
Canada Trust, recall such complaints. Professor Pyne stated that he would
likely have recalled complaints about the lights because it would be so
unusual. I note that Mr. Sekhon was working the equivalent of full-time
during the summer.

[66]        
As stated, Mr. Sekhon has not established that his injuries have
resulted in a delay in completion of his diploma program at TRU. Accordingly,
no award is made for loss of opportunity to earn past wages in this regard.

[67]        
In the result, I award $2,587.50 ($1,980 + $607.50) for past wage loss.

Future Loss of Income Earning Capacity

[68]        
Mr. Sekhon submits that there is a real and substantial possibility
that he will suffer an income loss in the future because of the injuries
suffered in the accident. He submitted that but for the accident he would have
enrolled in the Automotive Service Technician program at TRU and become a
journeyman mechanic. He notes his keen interest in mechanics from an early age,
excellent performance in high school automotive courses and purchase of a
project car in Grade 11 for the purposes of repair and restoration. Counsel
submits that as a result of the injuries suffered in the accident, Mr. Sekhon
was not able to enter this course.

[69]        
Mr. Sekhon submits further that as a result of the injuries he
suffered in the accident he has had difficulty completing his diploma in Business
Management and as a result his entry into the workforce has been delayed. Finally,
Mr. Sekhon submits that his injuries have left him less able to sit or
stand for prolonged periods of time without pain, engage in activities requiring
heavy lifting or repetitive lifting, read or study for prolonged periods
without headache or neck pain, work in awkward positions without pain.

[70]        
In the result, Mr. Sekhon submits that he has been rendered less
capable of earning income, less marketable as an employee, unable to take
advantage of all job opportunities that might have been available to him, and
less valuable as a person capable of earning income in a competitive labour
market. Mr. Sekhon seeks an award of $150,000 to $250,000 for the loss of income
earning capacity.

[71]        
The defendant submits that there should be no award under this head of
damages, arguing that Mr. Sekhon has failed to establish a real and
substantial possibility of a future event leading to an income loss, citing Perren
v. Lalari, 2010 BCCA 140.

[72]        
As discussed above, I have concluded that the evidence does not
establish that Mr. Sekhon was unable to undertake the Automotive Service Technician
program because of his injuries. I have also concluded that his injuries have not
interfered with Mr. Sekhon’s completion of his diploma program. The weight
of the medical evidence does not support a conclusion that the injuries he
suffered have resulted in any significant impairment in Mr. Sekhon’s
ability to pursue a career.

[73]        
While he continues to experience pain, as noted earlier, pain does not
necessarily amount to disability. Moreover, it does not appear that Mr. Sekhon
has explored ergonomic accommodations that might reduce his symptoms as
recommended by Dr. Laidlow, or a program of active rehabilitation such as
recommended by Drs. Laidlow and Boyce.

[74]        
In all of the circumstances, I find that Mr. Sekhon has not
established that there is a real and substantial possibility of a future event
leading to an income loss arising from the injuries he suffered in the accident
and make no award for loss of capacity to earn income.

Cost of Future Care

[75]        
Mr. Sekhon seeks the following:

(a)      $105 per year for
medication;

(b)      $540 per year for gym
membership; and

(c)      $90 per year for
massage therapy.

[76]        
Counsel submits that the present value of these amounts from the date of
trial to a date of death of 81, at a 3.5% discount rate including a mortality
adjustment, is $17,571. The present value to a date of death of 74 is $17,243.

[77]        
In addition, Mr. Sekhon seeks to retain the services of a personal
trainer for nine sessions pursuant to the recommendation of Dr. Laidlow at
a cost of $490. Thus, the total amount sought under this head of damages is
$17,733.

[78]        
The position of the defendant is that there should be no award under
this head of damage. Mr. Sekhon’s evidence concerning the gym membership
was that he found the exercises not helpful with respect to his injuries, but
he continued to attend for reasons for general fitness. There is no evidence
that medications have been authorized or prescribed for the future. Mr. Sekhon
did not testify that he wanted or would use a trainer.

[79]        
With respect to medications, Mr. Sekhon has testified that he uses
these on a continuing basis, as needed. There is no reason to suppose that the
prescriptions would not be renewed. I accept that $105 per year is a reasonable
estimate given the past expenditures. I do not accept the claim for massage
therapy in light of Dr. Laidlow’s opinion that massage therapy is not
recommended for patients such as Mr. Sekhon beyond the first six months. I
also do not accept the claim for gym membership since it was Dr. Laidlow’s
opinion that the program he was recommending could be done at home or in a gym.
I find that the recommendation of a series of sessions with a trainer to teach Mr. Sekhon
the appropriate stretches and exercises that he could then continue on his own
is appropriate, pursuant to the recommendation of Dr. Laidlow.

[80]        
Accordingly, with respect to the cost of future care, I award $105 per
year, the present value of which to be agreed between counsel, with liberty to
apply if agreement cannot be reached and a one-time award of $490 for sessions
with a personal trainer.

Special Damages

[81]        
Mr. Sekhon seeks $3,773.66 for special damages. The first part of
the claim is $448.66 which is for massage therapy and medications. The
defendant agrees with this component of the claim.

[82]        
The second part of the claim is $3,325 for gym membership from the date
of the accident to the date of trial. It was Mr. Sekhon’s evidence that he
was using the gym for personal fitness, not with respect to his injuries. I
find that this aspect of the claim has not been established.

[83]        
I award $448.66 for special damages.

“Ross
J.”