IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130422

Docket: M115224

Registry:
Vancouver

Between:

Scott Midgley

Plaintiff

And

Tan Hai Nguyen and
Tan Trung Nguyen

Defendants

Before:
The Honourable Madam Justice Dardi

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff, Scott Midgley, alleges he was injured in a motor vehicle
accident on March 26, 2004 (the “2004 Accident”). The defendants have admitted
liability for the 2004 Accident. At issue in this action is the assessment of Mr. Midgley’s
claim for damages.

[2]            
The defendant, Mr. Tan Nguyen, hit the rear end of the motor
vehicle driven by Mr. Midgley. While there is an allegation that the defendants’
vehicle sustained some damage, it is uncontroversial that there was no damage
to Mr. Midgley’s vehicle.

[3]            
In 2011, Mr. Midgley was diagnosed with a torn labrum in his right
hip, which injury he alleges he sustained in the 2004 Accident. He also alleges
that, as a result of the 2004 Accident, he continues to suffer from a lumbar
spine injury, chronic pain disorder, depression and anxiety. The principal
controversy is whether there is a causal connection between the 2004 Accident
and Mr. Midgley’s current complaints. The primary contention of the defendants
is that Mr. Midgley has failed to prove his case; their submissions are
anchored in an attack on Mr. Midgley’s credibility.

[4]            
This case, which was heard over 27 days, was hard fought on all fronts. The
parties are far apart in the various heads of damages, including non-pecuniary
damages, loss of past and future earning capacity, cost of future care and
special damages.

[5]            
Mr. Midgley sustained personal injuries in a subsequent motor
vehicle accident on October 10, 2006 (the “2006 Accident”). In this action,
Mr. Midgley is not seeking damages in relation to the 2006 Accident; his
lawsuit in relation to that accident settled prior to the commencement of this
trial. Mr. Midgley takes no issue with the defendants’ submission that the
injuries he sustained in the 2006 Accident are indivisible and that the
appropriate manner to assess damages in this action is to assess damages
globally and to deduct any settlement arising from the 2006 Accident from any damage
award: Ashcroft v. Dhaliwal, 2008 BCCA 352; Bradley v. Groves,
2010 BCCA 361.

[6]            
The complexity of this case was compounded by the fact that witnesses
were recalling material events more than seven years after those events
occurred.

[7]            
Before addressing the damages analysis, I turn to the facts established
on the evidence. I will address the facts in the following order:

·       General
Background;

·       Preliminary
Comments on Mr. Midgley’s Evidence;

·       The
2004 Accident;

·       Mr. Midgley’s
Return to Work at Weyerhaeuser after the 2004 Accident;

·       The
2006 Accident;

·       The
2006 Accident to Date of Trial;

·       Expert
Medical Evidence;

·       Conclusions
on Mr. Midgley’s Condition.

My findings on these matters
will then guide the determination of Mr. Midgley’s damages.

FACTS

General Background

[8]            
Mr. Midgley lives in Rosedale, British Columbia, with his wife, Maxine
Midgley. Mr. Midgley is currently operating a gym in Chilliwack, but at the
time of the 2004 Accident he was employed as a mill worker at the Trus Joist Weyerhaeuser
plant on Annacis Island, B.C. (“Weyerhaeuser”).

[9]            
As a teenager, Mr. Midgley became very accomplished in martial
arts; he became a professional kickboxer at age 17. He rose to become
world-ranked in that field and when he retired at the age of 21, he was ranked
fourth in the world in his category. He was named athlete of the year in
Chilliwack in 1986.

[10]        
Mr. Midgley worked throughout his high school years. After completing
high school, he was employed in a variety of jobs, including in the bakery department
of a grocery store and as a security doorman for a Chilliwack businessman,
Mr. Yates, who had been a supporter of his kickboxing career. In 1987,
Mr. Midgley obtained his certification for underwater welding, but other
than performing demonstrations at Expo 86, he never obtained any employment in
that field. In approximately 1988, Mr. Midgley moved to Calgary where he
worked in various capacities, including at a grocery store, as a deliveryman
and as an entry-level office worker for an oil company. He also took some night
school post-secondary courses in pipe-design at a vocational institute in
Alberta.

[11]        
In 1988, he was in a motor vehicle accident in Calgary, in which he
sustained an injury to his left shoulder. He recovered from his injuries,
although his shoulder injury continues to be aggravated intermittently by
certain activities such as shoulder-checking when he is driving.

[12]        
In 1993, Mr. Midgley returned to Chilliwack. For approximately four
years he worked as a sprinkler system installer, which was very physically
demanding work. From approximately 1993 to 1996, Mr. Midgley seriously
pursued body-building but he ultimately decided to quit that pursuit. While he
was pursuing body-building, for a two-year period, he took steroids under
the supervision of his doctor. From 1997 to 2001, he worked in various sales
positions and pursued various entrepreneurial ventures, all of which eventually
failed.

[13]        
On June 1, 2001, Mr. Midgley began to work as a mill worker with
Weyerhaeuser. The company manufactures multi-strand wooden polymeric structure
elements for use in residential and industrial construction.

[14]        
At Weyerhaeuser, prior to the 2004 Accident, Mr. Midgley worked 12-hour
shifts, four days per week, as a green end/veneer operator. In the almost three
years he worked at Weyerhaeuser, prior to the 2004 Accident, Mr. Midgley
never missed a shift.

[15]        
Prior to the 2004 Accident, Mr. Midgley was very physically active
and pursued various sporting activities with his wife, such as baseball, golf,
skiing and water sports. He took great pride in maintaining his physical
fitness and regularly attended the gym. He enjoyed a happy marriage and an
active social life. The evidence shows that he was an outgoing and gregarious
individual who had a positive outlook on life.

Preliminary Comments on
Mr. Midgley’s Evidence

[16]        
The defence provided extensive submissions regarding Mr. Midgley’s
credibility.

[17]        
While initially suggesting that Mr. Midgley was “less than careful
when giving evidence under oath”, in final submissions, the defendants urged
this Court to find that Mr. Midgley fabricated aspects of his evidence. They
allege a multitude of inconsistencies in the way Mr. Midgley described the
2004 Accident, his kickboxing instruction, his income, and his return to work at
Weyerhaeuser after the 2004 Accident. According to the defendants, Mr. Midgley’s
testimony “largely depends on what he was asked and what information he was
trying to convey”.

[18]        
Mr. Midgley’s counsel, contra, says that Mr. Midgley was a
sincere witness, who genuinely tried to provide accurate testimony. He
emphasized that Mr. Midgley’s evidence was supported by the credible testimony
of other witnesses. Mr. Midgley strenuously asserts that the accusations
made by the defence that he engaged in fabrication and enlisted others to do so,
was without foundation.

[19]        
The assessment of Mr. Midgley’s credibility and reliability is key
in determining the causation of his injuries and the nature and severity of
those injuries. This assessment is also critical to the weight to be given to
the various medical opinions to the extent that they are predicated upon Mr. Midgley’s
reporting of material facts.

[20]        
The court summarized the factors to be considered in the assessment of
credibility in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186,
aff’d 2012 BCCA 296:

186      Credibility involves an
assessment of the trustworthiness of a witness’ testimony based upon the
veracity or sincerity of a witness and the accuracy of the evidence that the
witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452,
50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of
his memory, the ability to resist the influence of interest to modify his
recollection, whether the witness’ evidence harmonizes with independent
evidence that has been accepted, whether the witness changes his testimony
during direct and cross-examination, whether the witness’ testimony seems unreasonable,
impossible, or unlikely, whether a witness has a motive to lie, and the
demeanour of a witness generally (Wallace v. Davis (1926), 31 O.W.N. 202
(Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) [Faryna];
R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para. 128 (S.C.C.)). Ultimately,
the validity of the evidence depends on whether the evidence is consistent with
the probabilities affecting the case as a whole and shown to be in existence at
the time (Faryna at para. 356).

[21]        
When a plaintiff is accused of deliberate deceit, more than mere
speculation and innuendo is required. As the court aptly observed in Hardychuk
v. Johnstone, 2012 BCSC 1359 at para. 9, “[a] charge of deliberate deceit
under oath is a serious attack on an individual’s integrity which should not be
lightly treated or lightly made”. Moreover, fairness requires that a plaintiff
be afforded an opportunity to address the allegations upon which the attack on
his or her credibility is based: Browne v. Dunn (1893) 6 R. 67
(U.K.H.L.); Hardychuk at para. 11; Gill Tech Framing Ltd. v. Gill,
2012 BCSC 1913 at paras. 31-33. While this principle has been described in
the jurisprudence as a “sound principle of general application”, it is not an
absolute rule. Ultimately, the extent of its application is “within the
discretion of the trial judge after taking into account all of the
circumstances of the case”: R. v. Lyttle, 2004 SCC 5 at para. 65.

[22]        
I will endeavour to outline below some aspects of Mr. Midgley’s
evidence which were highlighted by the defence, but I do not propose to address
each of the alleged deficiencies of Mr. Midgley’s evidence. I will
address what I have found to be the most pertinent allegations in my reasons in
the context in which they arise.

[23]        
Mr. Midgley testified that he served as an auxiliary officer with
the RCMP in Chilliwack and that he was invited to attend “depot”. He testified
that he wore a uniform and carried a gun. The defence asserts that this
evidence is “incredible and not believable”. However, the defence did not call
any evidence to refute Mr. Midgley’s testimony. I am not persuaded that
this Court can take judicial notice of the fact Mr. Midgley would not have
been permitted to carry a gun in 1988, when he says he served as an auxiliary
RCMP officer. The defence also says that Mr. Midgley’s testimony that he
received papers to attend “depot” in Ottawa was untrue because the RCMP “depot’
is not located in Ottawa. However, Mr. Midgley’s evidence was that depot
was “in Ottawa or back east”.

[24]        
I do not find that Mr. Midgley’s description of the hiring process and
the physical demands of his Weyerhaeuser job was an exaggeration, as is alleged
by the defence. In fact, Mr. Bill Paul, the human resources manager at
Weyerhaeuser, confirmed that Mr. Midgley’s description of the competitive
hiring process was accurate.

[25]        
The defendants submit that Mr. Midgley’s evidence regarding his
kickboxing instruction is not reliable, cannot support his claim, and
dramatically changes. Mr. Midgley testified that he has given private lessons
periodically, to both children and adults, from the time he first became an
accomplished kick-boxer. In cross-examination, he clarified that he “seriously
began teaching after the Accident”, when he started teaching and training out
of his garage in Chilliwack. However, because of his injuries, it became too
painful for him to demonstrate his kicks and he eventually had to shut down
that operation. He was forthright in acknowledging that he was unsure of the
time frame in which he eventually ceased his kickboxing instruction. I note
that he readily acknowledged that he continued providing instruction in
weight-lifting and personal training after he ceased his kickboxing
instruction.

[26]        
After the 2004 Accident Mr. Midgley sustained an injury to his left
foot while trying to demonstrate a “round kick”. The defendants suggest that
Mr. Midgley’s ability to demonstrate a kick confirms that he was
continuing to kick box and “likely able to pivot on his right leg or support
himself on his right leg while striking with his left leg at the level of an
adult’s elbow”. Mr. Midgley was not cross-examined on this incident. The
evidence does not show the circumstances in which Mr. Midgley sustained
this injury, including on whom Mr. Midgley was performing his kicks – adult
or child – nor whether this particular activity afterwards caused
Mr. Midgley pain in his hip and back.

[27]        
I accept Mr. Midgley’s evidence that after the 2004 Accident,
he tried to work through what he genuinely believed was a soft tissue injury from
which he would recover. Sometime later, he came to the realization that certain
activities were causing him severe pain and he came to terms with the reality
of his limitations, including how those limitations related to instructing and
demonstrating kickboxing.

[28]        
In assessing the plausibility of Mr. Midgley’s evidence, I have
kept in mind that as a former professional athlete, he is a “grin and bear it”
type of individual. In a kickboxing match, after sustaining a compound fracture
to his jaw in the first round, Mr. Midgley continued to fight a further
six rounds. In my view, this demonstrates his capacity for enduring
considerable physical pain.

[29]        
The defence points out what they allege is an inconsistency in Mr. Midgley’s
evidence regarding his description of his training of various individuals in
kickboxing. I am not persuaded that Mr. Midgley’s evidence regarding his
kickboxing “speciality” was inconsistent. It was apparent from his testimony
that his speciality in teaching differed in some aspects from the type of
martial arts he competed in. In my view, defence counsel has misconstrued his
evidence on this point. In any case, any discrepancy in Mr. Midgley’s
evidence regarding his speciality in kickboxing is of no moment.

[30]        
The defence spent considerable time in cross-examination reviewing
Mr. Midgley’s tax returns, starting from 2001. He readily acknowledged
that he could not recall the details of his income and expenses.
Mr. Midgley stated in cross-examination that he had not reviewed these
income tax returns for several years. I have also considered that Mr. Midgley
did not prepare his own income tax returns; he relied upon his accountant – to
whom he provided the pertinent information – to prepare the returns. I cannot
conclude that Mr. Midgley’s imprecise memory in recalling his income and
expenses from several years earlier was a deliberate attempt to mislead the
court on his activities or income, either prior to or after the 2004 Accident.
It is more likely that he was genuinely mistaken.

[31]        
On a related point, it clearly emerged on Mr. Midgley’s
cross-examination that his estimates of his earnings from his kickboxing
instruction before the 2004 Accident were inaccurate or his stated income and
related expenses were not accurately reflected on his income tax returns. If
Mr. Midgley failed to accurately report his income from kickboxing or any
other income or inaccurately claimed expenses on his income tax returns, he
cannot be excused. However, I am not persuaded that any failure on his part in
this regard diminishes the credibility of his evidence on the central issues at
trial.

[32]        
The defence also points out that Mr. Midgley gave inconsistent
evidence regarding his ability to “work out” in the gym following the 2004
Accident.

[33]        
Mr. Midgley testified regarding the importance to him, prior to the
2004 Accident, of exercising and maintaining an active lifestyle. He had worked
out regularly since he was 14 years old and derived considerable enjoyment and
positive emotional benefit from maintaining a high level of physical fitness.

[34]        
In his examination in chief, Mr. Midgley testified that there was a
period – “a good year plus” – after the 2004 Accident, that he was not able “to
work out”. The defence points out that his entries in his pain diary, which
were admitted by agreement at trial, show that in fact he attended the gym on a
few occasions in 2004 and then on a more regular basis in February through May 2005,
prior to his graduated return to work in June 2005.

[35]        
On cross-examination, Mr. Midgley explained that his doctor had
recommended that he attend the gym for rehabilitation purposes, in order to
attempt to return to work. The preponderance of the evidence supports a finding
that his attendances at the gym were focused on rehabilitation efforts and did
not constitute the strenuous “work-outs” he routinely performed prior to the
2004 Accident. The fact that he had a faulty recall of precisely when he may
have attended the gym for this purpose some seven years earlier  does not
undermine his credibility. Nor do I find the fact that he was providing
personal training and weight-lifting instruction after the 2004 Accident
inconsistent with his evidence on his physical limitations.

[36]        
The defence points out that Mr.  Midgley went on a motorcycle trip
to the Kootenays with his friends in 2010 and has taken vacations with his wife
since the 2004 Accident. During the motorcycle trip, Mr. Midgley stopped
frequently to rest and, because of his pain symptoms, left his friends to go
home early. His wife corroborated that he can only ride his motorcycle for
short periods of time. In any case, there is no medical evidence that a person
with his injuries would be incapable of either the motorcycle trip or the
vacations. The court was left with the impression that Mr. Midgley suffered
through pain and discomfort during his vacations with his wife, in order to
avoid any further strain on his marriage.

[37]        
I found it troubling that Mr. Midgley admitted telling his family
physician, Dr. Klassen, that he was well enough to try to return to his regular
duties at Weyerhaeuser, when in fact he was not. However, the fact that Mr. Midgley
told his doctor this does not cause me to disbelieve his evidence at trial. At
the time, Mr. Midgley may have convinced himself that he would be able to
resume work and he clearly made this representation in a determined effort to
keep his job at Weyerhaeuser.

[38]        
During his testimony, Mr. Midgley sometimes struggled to maintain
his train of thought and remain focused. On occasion, he had faulty recall or
only partial recall of dates and specific events. On the other hand, he was
forthright when he could not remember details about any particular matter and
he readily acknowledged when he was mistaken. Given that he was being asked to
recall matters over a time frame of many years, his mistakes in the
chronological order of events did not cause me to generally disbelieve him. I
am not persuaded Mr. Midgley engaged in any deliberate attempts to be
misleading. Overall, he left the court with the impression that he was genuinely
attempting to answer questions truthfully and endeavouring to provide a
forthright account of pertinent events.

[39]        
In the final analysis, despite the frailty of some aspects of Mr. Midgley’s
testimony, I conclude, on the evidence as a whole, that Mr. Midgley’s
general credibility under oath on key matters was not successfully impugned.
His evidence was largely consistent with the testimony of the non-party lay witnesses.
On some points  Mr. Midgley was not given an opportunity to address the
allegations upon which the attack on his credibility was based. I found some of
the criticism of his evidence levelled by the defence unpersuasive. While I
find that there were shortcomings and inconsistencies in Mr. Midgley’s
evidence, I am not persuaded that they were particularly significant in the
context of the evidence as a whole.

The 2004 Accident

[40]        
On March 26, 2004, Mr. Midgley, while driving his subcompact
vehicle to work at the Weyerhaeuser mill, was rear-ended by a full-size sports
utility vehicle operated by the defendant, Mr. Nguyen. Mr. Midgley was
wearing a seatbelt. Mr. Midgley’s vehicle did not sustain any damage in
the collision.

[41]        
There is a conflict on the evidence as to whether the defendants’
vehicle sustained any damage in the collision. Mr. Nguyen maintains that there
was no damage to the vehicle. In contrast, Mr. Midgley says he observed
“black plastic pieces” on the roadway, in front of the defendants’ vehicle and
damage to the front bumper of that vehicle. There was no opinion evidence
tendered at trial that the force of the impact in this case could not have
produced the injury alleged by Mr. Midgley. In absence of such evidence,
it is not necessary for me to make a finding as to the extent of the damage, if
any, to the defendants’ vehicle.

[42]        
Mr. Midgley’s body position at the time of impact is the subject of
considerable controversy. The defence forcefully asserts that Mr. Midgley
has fabricated his evidence on this point.

[43]        
Mr. Midgley testified that at the moment of impact, he had loosened
his seat belt with his left hand and was leaning forward to the right to
retrieve his water bottle on the passenger’s side of his vehicle. His water
bottle had slid off the front passenger’s seat as he stopped for an amber
traffic control light at the intersection. He stated that the impact knocked
his baseball hat off his head. He sat back up and pulled his car over to the
side of the road. When he got out of his car, he realized that he was in shock
and that “there was something wrong”; he felt pain down to his knees and it was
painful for him to walk.

[44]        
It is uncontroversial that, after the collision, Mr. Midgley exchanged
information with Mr. Nguyen. He immediately proceeded to attend the
emergency department at Surrey Memorial Hospital. He was discharged after being
assessed and given a prescription for pain medication. The next day, he
described his hips and lower back “aching like a toothache”.

[45]        
Mr. Midgley was thoroughly cross-examined on the statement prepared
by an ICBC employee on April 5, 2004, regarding the 2004 Accident (“the
Statement”), as well as on a diary entry he prepared shortly after the 2004 Accident
.The Statement was admitted by agreement.

[46]        
The defence forcefully asserts that there are significant
inconsistencies between the Statement he gave shortly following the 2004 Accident
and his evidence in trial. For the reasons that follow, I do not agree.

[47]        
Prior to impact, Mr. Midgley testified that he had been talking to
his wife on his cell phone. He says he was holding the cell phone and releasing
his seatbelt at the same time. The defence points out that, in the Statement,
he states that he was holding his cell phone in his right hand and at trial he
stated that he was holding it in his left hand. I find that nothing turns on
this discrepancy.

[48]        
The defendants also say there is a significant discrepancy between his
Statement and his evidence in trial, in that the Statement refers to him
travelling at 10 to 15 kph and that he was slowing down for a yellow light when
he was hit. At trial, Mr. Midgley maintains that he was stopped. Notably,
this accords with the defendant, Mr. Nguyen’s testimony at trial. In any
case, this is not a discrepancy to which I attach any weight.

[49]        
The defence points out that his Statement did not refer to his body
position at the time of impact. He maintained that when he provided the
Statement it did not occur to him that his body position was a relevant detail.
I found his explanation entirely plausible.

[50]        
In cross-examination, Mr. Midgley was referred to and adopted the
portion of the Statement in which he stated that “as soon as I went to get out
of the car, I felt like I was twisted. My mid-back and lower hips were sore.” I
also note the fact that his hat dropped off his head is consistent with him
leaning over to the right at the time of impact.

[51]        
I cannot conclude that the hand-written entry in his diary that Mr. Midgley
prepared shortly after the 2004 Accident reveals any inconsistencies that are
significant in the context of the evidence a whole. That entry states in part:

I was hit and screamed probably
because I didn’t know what was happening. I pulled over onto King George HWY. I
found myself stumbling around to organize things on the front seat, water
bottle was now on the floor, lunch, nuts, hat, was knocked off my head to the
floor. …

[52]        
I do not find Mr. Midgley’s testimony, that he was reaching for the
water bottle at the time of impact, inconsistent with his notation that, after
the impact, the water bottle was in fact on the floor.

[53]        
I reject the defence contention that Mr. Midgley fabricated his
evidence regarding his body position, after he was told in January 2005 that a
CT scan had revealed a mild protrusion on his left lumbar spine. According to
the defence, he viewed this scan as “his ticket”.

[54]        
On my review of the medical records, the first time Mr. Midgley
reported his body position to a health care professional was on July 25, 2005. In
the assessment form for the Fraser Valley Physiotherapy and Rehabilitation
Centre Ltd., he reported that he was rear-ended in “odd position (slammed on
brakes), 1 hand on wheel, 1 hand reaching for H₂O bottle.” Notably, the
first medical-legal report that refers to any causal link between his body
position and the injuries he sustained in the 2004 Accident is that of
Dr. O’Connor, which was not prepared until 2011.

[55]        
Mr. Midgley struck me as a somewhat unsophisticated individual, who
lacked sufficient guile in 2005, before he received any medical opinion of a
causal connection between his body position and his injury, to fabricate his
evidence regarding his body position.

[56]        
In short, I accept Mr. Midgley’s evidence that he was bent forward
and twisted to the right, reaching to the passenger’s side when his vehicle was
struck from behind. In reaching this conclusion, I have considered the entire
body of evidence and, in my view, it best harmonizes with the probabilities of
this case.

Mr. Midgley’s
Return to Work at Weyerhaeuser after the 2004 Accident

[57]        
There was considerable trial time spent on Mr. Midgley’s return to
work at Weyerhaeuser after the 2004 Accident.

[58]        
Prior to the 2004 Accident, Mr. Midgley worked at Weyerhaeuser as a
“green end/veneer dryer” operator. He worked 12-hour shifts four days on/four
days off with two-day shifts per week. Mr. Midgley worked on what is
typically described as the “green end” or “green chain” on a variety of
machines. His job entailed feeding and unloading sheets of eight-foot veneer
sheets from the dryer machine. When working on “the dryer infeed”, he shifted
the veneer from a conveyer onto the dryer belt. On the “dryer outfeed”, he
removed the dried veneer off the belt and placed it on a cart. Once the veneer
cart was loaded it would have weighed approximately 1,500 pounds. He then pushed
the loaded cart into position for pick-up by a forklift. Several times per
shift, Mr. Midgley was also required to clear jams in the dryer outfeed
machines. He also performed regular maintenance work in the mill as was
required.

[59]        
The work on an assembly line as a dry-operator was repetitive and
machine-paced and required long hours of standing, twisting and turning,
lifting, stooping, as well as occasional heavy maintenance work. The evidence
as a whole, including that of Mr. Roger Williams, Mr. Ryan Simonson, and
the job function analysis commissioned by Weyerhaeuser, supports a finding that
the work was physically demanding. To the extent that the defence asserted
otherwise, I reject those submissions.

[60]        
Although the evidence was confusing on this point, on balance, the
evidence shows that after the 2004 Accident, Mr. Midgley took approximately
three weeks off work, including a week of previously scheduled vacation time. Mr. Paul
confirmed that the initial period after the 2004 Accident was recorded as short-term
disability (up until April 12, 2004) and thereafter, Mr. Midgley took his
scheduled vacation.

[61]        
The central dispute is whether in April 2004, Mr. Midgley returned
to working his regular shift on the green chain on a sustained basis. This is a
pivotal issue in this lawsuit, because of Mr. Midgley’s reports to the
various health care professionals who assessed him that he was not able to
return to his “regular job” after the 2004 Accident.

[62]        
Mr. Midgley maintains that in May 2004, shortly after he returned
to Weyerhaeuser, he was chosen to be the summer relief worker in the remanufacturing
department at Weyerhaeuser. The regular crew members in the remanufacturing
department vote as to who they would like to elect to be temporary holiday
replacement workers, primarily based on what they perceive to be a worker’s
compatibility with the “reman” team. The various witnesses who testified
referred to the work in the remanufacturing department as “reman” and
therefore, for convenience, I will refer to it as “reman” in these reasons. It
is not disputed that this work, which involved packaging the finished work
product, was considerably lighter work than the green chain work that
Mr. Midgley had performed prior to the 2004 Accident.

[63]        
Mr. Midgley explained that, although he was assigned to “reman” for
summer relief, he nonetheless reported first to the green chain on each shift
before he would be called to reman. He stated that during the time he was
temporarily assigned to reman, he would perform relief work on the green chain
for 25 minutes, up to three times per day. He says that during the pertinent
period, he may have done the “odd shift” at the green chain but that he never
did a full four-day rotation. In October 2004, when he was required to return
to his regular shift rotation on the green chain, he could not perform those
duties on a sustained basis.

[64]        
In October-November 2004, Mr. Midgley attended the mill and
performed light or restricted duties for some period of time. However, he found
that attendance at the mill aggravated his injuries and he discontinued working.
He attempted a graduated return to work in September-October 2005, which was
unsuccessful. His last day of work at Weyerhaeuser was October 26, 2005.

[65]        
The defendants say that Mr. Midgley fabricated his evidence about
his return to work. They rely on the Weyerhaeuser time cards and assert that when
Mr. Midgley returned to work in 2004, he continued to work at his regular
on-call job, on the shifts assigned to him, in the areas that were assigned to
him, without accommodation, until October 21, 2004. They strenuously argue that
he was never assigned to “reman” as he alleges, but rather that he continued to
work his regular rotations on the green chain. They do not dispute that, from
time to time, he would be moved to the reman area and that the time cards may
not accurately reflect each and every time that happened.

[66]        
Mr. Paul, who is the human resources manager at Weyerhaeuser, was
called by the defence. He acknowledged in cross-examination that when
completing pertinent documentation he indicated that Mr. Midgley’s
condition appeared to first affect his work in April 2004, within days of the 2004
Accident. He also confirmed that, as a result of his condition, Mr. Midgley’s
performance on the job changed and, for some period of time, he was temporarily
assigned to light duties. Mr. Paul confirmed that green chain workers routinely
perform vacation relief work in the reman department and that, in particular, in
2004, Mr. Midgley provided vacation relief in the reman department.

[67]        
I turn to address the Weyerhaeuser time cards which were produced after
Mr. Midgley was examined for discovery. According to Mr. Paul, the
time cards were produced by the time card entry system for hourly production
workers. This information generated the payroll for the production workers. The
hours were entered by the associates and approved by the supervisors.

[68]        
Mr. Paul testified regarding the different coding for the reman
department and the green end. Insofar as the reliability of the department
coding, Mr. Paul explained that “any time entry system is subject to
errors”. According to Mr. Paul, it was more probable that Mr. Midgley’s
work in a pertinent period was coded incorrectly in the green end, when he was
actually working in the reman department than “vice versa.” This was because
the green end was Mr. Midgley’s regular assignment and changing it would
require someone to manually amend the department coding. The tenor of Mr. Paul’s
evidence was that, although it was the associate’s responsibility to enter the
correct hours into the correct department and the supervisor’s responsibility
to approve an accurate time card, there was clearly room for error in the time
card entries.

[69]        
In cross-examination, Mr. Paul candidly acknowledged that there
were “glitches” in the payroll system that had been installed shortly before
the 2004 Accident. He further clarified that any issues would have been
compounded by the fact that the system called upon the various supervisors and
associates to actually specify or itemize which department they were working in
on any given day.

[70]        
The defence also called Mr. Duane Postles, who is currently the
safety manager with Weyerhaeuser. Prior to being promoted to safety manager, he
was a shift supervisor. He was Mr. Midgley’s shift supervisor when
Mr. Midgley had worked “on call” and periodically rotated through his
shift. I note parenthetically that Mr. Postles acknowledged in
cross-examination that prior to the 2004 Accident, Mr. Midgley was well-liked
and a highly capable worker with a good attitude. He also described
Mr. Midgley as very dynamic, driven and reliable. Mr. Postles has no
recollection of working with Mr. Midgley in October 2004, when
Mr. Midgley was assigned to his shift.

[71]        
In cross-examination, Mr. Postles admitted that, although the time
cards and shift lists suggest that Mr. Midgley was working on the green
chain after the 2004 Accident, it was “quite possible” he was in fact working
doing summer relief in the reman department during that time.

[72]        
On the totality of the evidence, I cannot conclude that either the time
cards or the shift list roster are determinative of whether Mr. Midgley
was assigned as a holiday relief worker “in the reman department” after the
2004 Accident. I note that the shift list dated June 17, 2004, has a “VR”
placed next to Mr. Midgley’s name. It can reasonably be inferred that this
refers to Vacation Replacement or Vacation Relief.

[73]        
Contrary to the defence assertions, the evidence falls short of
establishing that the fact that Mr. Midgley worked some night shifts and
performed some overtime in this period, is inconsistent with him having been
assigned summer relief work in the reman department.

[74]        
In assessing the evidence on this point, it is important to appreciate
that Mr. Midgley was recalling his work schedule in 2004, some seven and a
half years prior to trial. As a general observation, Mr. Midgley was clearly
confused at certain points with respect to the time frames in which he was on a
graduated return to work program, working light duties, or when he was
performing his duties on a regular shift. He candidly admitted when he could
not recall dates and time frames. Moreover, when a document showed that he had
been inaccurate in his recollection as to specific dates or time frames, he
readily acknowledged any inaccuracies in his testimony.

[75]        
Initially in his evidence, Mr. Midgley testified that he had been
posted on a regular shift in the spring of 2004, but a review of his employment
record shows that he was not placed on shift on any permanent basis until
October 19, 2004. I find that Mr. Midgley was genuinely mistaken as to
when he was permanently placed on shift. This is not surprising, as it was
established through the evidence of Mr. Paul and Mr. Postles that Mr. Midgley
in fact, by June 1, 2004, had been placed on “shift 2” temporarily, to replace
another shift member who was on leave. Mr. Midgley worked on that shift
through to October 2004.

[76]        
During cross-examination, Mr. Midgley was also referred to his “pain
diary”. Some of the pain diary entries clearly refer to “at work” or “back to
work”. The defendants contend that if Mr. Midgley had not been working on
the green chain through the summer of 2004, he would have recorded that in his
diary. According to Mr. Midgley, when he made those notations, his
reference to “work” meant attending at the Weyerhaeuser mill. I found his
explanation plausible.

[77]        
Mr. Midgley steadfastly maintained in cross-examination that after
the 2004 Accident, he did not resume working regular rotations on the green
chain on any sustained basis. In cross-examination, Mr. Midgley testified
as follows as to what he meant when he explained his return to “work” to the
various health care professionals who assessed him:

Q         Do you acknowledge that you did not tell any
of the doctors who have seen you about your injuries in this accident that you
were working for six months after the accident?

A          Well, I wasn’t working in my job for six
months afterwards is what I’m trying to say. Reman is not my permanent
position, I can’t stay there. I wish I could. I might still be there today. But
not in my job.

Q         You didn’t tell them that you were working for
that six-month period?

A          That’s not
working to me, I’m not in my – – it’s an easy, light duty job, that’s not what
my job entitled. They asked me what my job entitled, it’s a hard labour job.
That’s my job. The green – – or the Reman is not my job, it’s not a permanent
position. You wish it was but it’s not.

[78]        
I found the evidence of Mr. Simonson, who was called as a witness
by Mr. Midgley, persuasive. He testified regarding working with Mr. Midgley
at the same shift in the summer of 2004 in the reman department at Weyerhaeuser.
He was a credible and objective witness who provided clear and convincing
testimony. I accept his evidence.

[79]        
According to Mr. Simonson, Mr. Midgley held the summer relief
position from the end of April/early May 2004 for five or six months. The team
within which he worked in the reman department chose Mr. Midgley for the
summer relief position because of his likeability and compatibility.

[80]        
He recalled that Mr. Midgley worked with him on “shift 2”, doing
packaging and that Mr. Midgley, during the summer of 2004, was not
required to do any heavy lifting. He described packaging the lumber packages on
a conveyer belt like wrapping a large Christmas present. Mr. Midgley could
stand or sit as he preferred. He had a clear recollection that Mr. Midgley
wore a back brace and a belt during this period. He also corroborated Mr. Midgley’s
evidence that members of the reman department performed break-relief work on
the green chain and that working in the reman department was nowhere near as
strenuous as working on the green chain. The employees could move around freely,
they had longer breaks and it did not involve machine-paced repetitive work,
which Mr. Simonson described as “extremely physical”. In short, the work
in the “reman department” was preferred to the green chain by all workers
because it was considerably less physically demanding work.

[81]        
Despite his imprecise recall of the dates, on balance, I found Mr. Midgley’s
evidence regarding his return to employment to be credible. In my view,
Mr. Midgley’s answers at trial did not appear to be tailored. If indeed he
had fabricated his testimony at trial one would have expected his evidence on
this point to be more honed. I cannot conclude that he deliberately intended to
deceive or mislead the court as is alleged by the defence.

[82]        
In summary, the preponderance of the evidence supports a finding that in
the period following the 2004 Accident until October 2004, Mr. Midgley did
not resume working regular shift rotations on the green chain on a sustained
basis; shortly after his return he was assigned summer relief work in the reman
department. Thereafter, until October 2004, he worked for the most part in the
reman department, routinely wearing a back brace and a weight-lifting belt for
support.

[83]        
On this point, I find no significant inconsistencies or inaccuracies in
what he reported to the various health professionals who assessed him. In my
view, none of the doctors who assessed him demonstrated any significant
misunderstanding of Mr. Midgley’s return to work after the 2004 Accident.
In reaching this conclusion, I have considered the entire body of evidence and,
in my view, it best harmonizes with the preponderance of probabilities of this
case.

The 2006 Accident

[84]        
Mr. Midgley sustained injuries in a motor vehicle accident which
took place on October 10, 2006. After a passing truck dropped cargo onto
Highway 1, his vehicle spun and hit a barricade and then slid off the highway
into a median. He was taken from the scene in an ambulance but was released
from the hospital the same day. Notably, at the time of the 2006 Accident, Mr. Midgley
was not working.

[85]        
As a result of the 2006 Accident, Mr. Midgley suffered from
headaches and the prior injury to his left shoulder was aggravated. He also
sustained an aggravation of his low back pain. The headaches and aggravation of
his back and shoulder injuries subsided a year or so after the 2006 Accident;
Mr. Midgley eventually recovered to his pre-2006 Accident condition.

2006 Accident to the Date
of Trial

[86]        
After he left Weyerhaeuser Mr. Midgley worked in various positions.
He worked in an investment office for approximately two to three months. He
also worked for Mr. Miller in a steel company for one month and worked as
a personal trainer for Mr. Miller’s staff and family for eight months. He
also worked for Mr. Yates in a private liquor store in Sardis for some six
weeks. I note parenthetically that both Mr. Miller and Mr. Yates
testified at trial and I will refer to their evidence later in these reasons.

[87]        
Mr. Midgley sought counselling in 2006 for his psychological issues
through an employee assistance program.

[88]        
Mr. Midgley opened a gym facility in Chilliwack on January 5, 2009.
Since that time, he has operated the gym as a sole proprietorship with three
employees. He greets clients and offers limited personal training sessions.

[89]        
In late 2011 Mr. Midgley was involved in a motor vehicle accident in
which he rear-ended another vehicle. He did not sustain any injuries in that
accident.

Expert Medical Evidence

Plaintiff’s Experts

[90]        
Mr. Midgley relied on the expert evidence of Dr. Klassen, Dr. Shuckett,
Dr. McKenzie, Dr. Hamm, Dr. O’Breasail and Dr. O’Connor.
Dr. Klassen, who was Mr. Midgley’s family doctor, died tragically
while on vacation in 2009. Each of the other doctors attended for cross-examination
at trial. The key portions of their reports are summarized below:

(i)         Dr. Klassen

[91]        
Dr. Klassen prepared a report dated May 17, 2006, five months
before the 2006 Accident. It was his opinion that Mr. Midgley, as a result
of the 2004 Accident, sustained an injury to his lumbar spine, which caused him
pain, tenderness, spasms and limitation of movement. As of May 2006,
Mr. Midgley’s condition had not improved. He opined that Mr. Midgley
was unable to return to his former job at Weyerhaeuser and that Mr. Midgley
demonstrated probable “permanent disability”. However, he was of the view that Mr. Midgley
could perform a job which did not strain his lumbar spine.

(ii)        Dr. Shuckett

[92]        
Dr. Shuckett, a rheumatologist, assessed Mr. Midgley on
October 2, 2007. In her report dated October 23, 2007, she states that her
diagnoses, as a result of the two motor vehicle accidents in 2004 and 2006, included
right sacroiliac joint dysfunction with tenderness and stress pain and
mechanical low back pain, “which is likely musculo-ligamentous in origin”. She
also noted that an acetabular labral tear of Mr. Midgley’s right hip
should be ruled out.

[93]        
Insofar as prognosis, she states that Mr. Midgley likely had made “maximum
medical recovery” by October 2007.

(iii)       Dr. Gerard McKenzie

[94]        
Dr. McKenzie is an orthopedic surgeon who assessed Mr. Midgley
on October 3, 2007. In his report dated October 7, 2007, he states his
diagnosis was “unspecific low back pain”, which was triggered by the 2004
Accident. He opined that even prior to the 2006 Accident, Mr. Midgley’s
pain had become chronic and that Mr. Midgley suffers from chronic pain
syndrome.

[95]        
In his view, the prognosis for Mr. Midgley’s lower back pain is
poor and that there is a very high likelihood that he will continue to suffer persistent
discomfort.

(iv)       Dr. Douglas Hamm

[96]        
Dr. Hamm, an occupational medicine specialist, assessed Mr. Midgley
on June 8, 2010. In his report dated July 2, 2010, he concluded that as a
result of the 2004 Accident, Mr. Midgley developed persisting lumbar pain
with occasional shooting pains up the right paravertebral area and also in his
left leg. In Dr. Hamm’s view, Mr. Midgley suffers from post-traumatic
chronic mechanical low back pain, which is aggravated by prolonged postures and
repetitive forceful movements. He states as follows:

It is my own opinion that it is
the accident of March 26, 2004 which has resulted in Mr. Midgley’s current
level of symptomatology and disability as noted above. In my opinion, the
accident of October 10, 2006 caused additional pain intensity but did not
essentially alter the pattern of Mr. Midgley’s pre-existing pain and
disability.

[97]        
As of 2010, Mr. Midgley was not able to tolerate prolonged sitting
or prolonged walking without developing increased pain. In Dr. Hamm’s
opinion, Mr. Midgley is not capable of tolerating his former work as a
dryer-operator nor is he suited for work which requires heavy strength physical
demands.

[98]        
He concluded that for the foreseeable future, Mr. Midgley will
likely continue to experience mechanical low back pain, with exacerbation from
over-exertion or prolonged postures. According to Dr. Hamm, this will
“adversely impact his options for employment.”

(v)        Dr. O’Breasail

[99]        
Dr. O’Breasail is a psychiatrist who assessed Mr. Midgley on
June 14, 2010.

[100]     In his
report dated December 23, 2010, he states that Mr. Midgley is suffering
from chronic pain and following the 2004 Accident, he suffered a Major
Depression, which is now in partial remission. Mr. Midgley experienced
depressed mood, decreased drive and motivation, cognitive difficulties with
impairment in concentration and memory, irritability and a generally low
frustration tolerance. He has become more socially withdrawn and enjoys life
much less.

[101]     He opined
that Mr. Midgley will likely suffer chronic pain in the long term and will
continue to experience mood difficulties. His opinion is that Mr. Midgley
has a permanent partial disability.

[102]    
He concluded that, in addition to the physical problems it caused, the
2004 Accident was primarily responsible for Mr. Midgley’s disabling
psychological injuries.

(vi)       Dr. Russell O’Connor

[103]     Mr. Midgley
was assessed by Dr. O’Connor, a physical medicine and rehabilitation
specialist, on June 1, 2011.

[104]    
In his report dated June 1, 2011, he stated that, because of
Mr. Midgley’s complaints of deep right buttock pain that worsened with
rotation of the hip and the mechanism of the injury in the 2004 Accident, he
suspected Mr. Midgley had sustained a labral tear in the right hip in the
2004 Accident. He recommended that an MRI arthrogram be carried out to
determine if that was the case. In his first report, he states as follows:

During the accident, the
mechanism of injury to his hip was loading of the hip inn (sic) full flexion where
he was bent forward and off to the right, putting his right hip in a maximum
hip impingement-type position and then was rear-ended. For this reason a hip
arthrogram should be done to look for this type of hip injury.

[105]     A right
hip MRI arthrogram which was performed on July 27, 2011, confirmed Dr. O’Connor’s
suspicion that Mr. Midgley had sustained a tear to the labrum of the right
hip. The labrum is the connective tissue or cartilage that surrounds the ball
and socket joint in the hip. The MRI arthrogram showed that Mr. Midgley
had a cam-type impingement in his hip socket -a boney bump on the ball of the
femur that sits inside the hip joint – which put him at an increased risk for a
labral tear. Dr. O’Connor’s opinion is that the 2004 Accident caused Mr. Midgley’s
labral tear. Dr. O’Connor also opined that the 2004 Accident aggravated
the pre-existing degenerative changes in Mr. Midgley’s back and caused an
increase in the severity and frequency of Mr. Midgley’s low back pain, particularly
on the right side.

[106]     In
Dr. O’Connor’s opinion, Mr. Midgley was unable to return to his
previous occupation as a dryer-operator in Weyerhaeuser and would never be able
to do so. In his view, Mr. Midgley is capable of moderate level work but
not on a full-time basis.

[107]     With respect
to prognosis, he stated that it is possible, with surgery, Mr. Midgley’s hip
and buttock pain would improve, but without further surgery, in all
probability, there will be no improvement in his condition. It is his opinion
that without further intervention, Mr. Midgley’s back pain should be
considered to have plateaued. However, given that the hip pain is the trigger
for the flares of pain he experiences six to seven times a year, there may be
some improvement with his back pain if the labral problem is addressed
surgically.

[108]     In his August
10, 2011, report, Dr. O’Connor concludes as follows:

The surgery for the hip labral
repair and removal of the bones causing the impingement will not return the hip
to normal. But getting rid of the bone spurs may slow the deterioration of the
hip down. The repair of the labrum may decrease the frequency and severity of
the flares of pain. We will know more after the surgery. He will need physio
and strength and conditioning after the hip surgery for about 6 months.

Defendants’ Experts

(i)         Dr. Miller

[109]     Dr. Miller,
a psychiatrist, conducted an assessment of Mr. Midgley on September 30,
2011. He addressed the opinion of Dr. O’Breasail on behalf of the defence.

[110]     In his
assessment dated September 30, 2011, Dr. Miller essentially agreed with
Dr. O’Breasail’s opinion. Although Mr. Midgley’s depressive symptoms
have remitted to a significant extent, he agreed that some of the symptoms he presents
with, such as disturbance of mood, anger and frustration and anxiety regarding
his current circumstances, are depressive in nature. He also observed that
there may well have been times in the past few years that there had been
sufficient depressive symptoms to warrant a diagnosis of Major Depression.

[111]     Dr. Miller
also stated that Mr. Midgley has chronic pain symptoms that are sufficient
for a diagnosis of chronic pain disorder. He also opined that
Mr. Midgley’s self-esteem and his coping mechanisms, which included
exercising at a high intensity, have both been reduced because of his inability
to maintain a high level of physical activity.

[112]     In his
opinion, Mr. Midgley, who enjoys physical activities, is capable of
“limited and relatively low-stress work” that is consonant with his physical
limitations.

[113]     Insofar as
treatment, he agrees with Dr. O’Breasail that Mr. Midgley requires
further treatment for his psychological issues, including cognitive behavioural
treatment. However, in contrast to Dr. O’Breasail, Dr. Miller does
not recommend anti-depressant medication for Mr. Midgley. He is of the
view that if Mr. Midgley, after ceasing the use of anabolic steroids,
continues to have mood problems, there should be consideration of the usage of
a mood stabilization medication.

(ii)        Dr. Schweigel

[114]     Dr. Robert
Schweigel, an orthopedic surgeon, who assessed Mr. Midgley on behalf of the
Defendants on August 8, 2011, prepared a report dated August 8, 2011.

[115]    
In his report, he described Mr. Midgley as cooperative through the
history and physical assessment. According to his report Mr. Midgley did
not complain of any pain during the examination of his hips.

[116]    
Dr. Schweigel emphasized that Mr. Midgley has degenerative
disc disease in his lumbar spine; he has a mild disc protrusion at L5-S1and
some mild disc bulging at L4-5. It is his view that the degenerative disc
disease pre-existed the 2004 Accident. However, he also notes that, on review
of his family doctor’s notes, Mr. Midgley was “relatively asymptomatic”
with respect to the lumbar spine prior to the 2004 Accident.

[117]     Dr. Schweigel
stated in his report that Mr. Midgley’s ongoing mechanical back pain
symptoms and the pain he persistently experiences in his right buttock region are
likely from the degenerative disc disease in his lumbar spine.

[118]    
Dr. Schweigel concluded that Mr. Midgley did sustain soft
tissue injuries in both the 2004 and 2006 accidents. In his view, Mr. Midgley
would have been limited with respect to impact and heavy activities for
probably three to six months after sustaining these soft tissue injuries, after
which he would have expected that Mr. Midgley could have worked.

Response Report of Dr. O’Connor
to Dr. Schweigel

[119]    
In response to the report of Dr. Schweigel, Dr. O’Connor, in
his report dated September 9, 2011, explains why he disagrees with
Dr. Schweigel’s opinion that Mr. Midgley’s degenerative changes in
his spine are the cause of Mr. Midgley’s complaints. He states as follows:

The reason I disagree with Dr. Schweigel
on this point is Mr. Midgley was relatively asymptomatic, functioning well
and in fact at an elite level of physical activity prior to the accident. Mr. Midgley
was showing no signs of being limited by his back pain according to the medical
information I have available to me at the time of this report. Mr. Midgley
was involved in a motor vehicle accident and subsequently had ongoing back and
hip pain that became incapacitating and prevented him from both competing and
working in a competitive environment. The main change, in my opinion, was the
motor vehicle accident. The mechanism of injury of the 2004 MVA (despite it
being a low velocity impact) is important with regards to helping make the
diagnosis. Mr. Midgley described being hyperflexed at both the back and
the hip, and twisted to the right getting something off the floor on the passenger
foot well. This puts his right hip into a hyperflexed, internally rotated, and
relatively adducted position to his trunk, which put him at prime risk for
injury to his labrum on the right side and injury to his low back. It is my
opinion he suffered a labral and hip injury as a result of the MVA.

Adverse Inference

[120]     Since
2009, Mr. Midgley has been treated by Dr. J. Coppin. Dr. Coppin
did not give evidence and the defence asked that I draw an adverse inference
from the plaintiff’s failure to call him.

[121]     It is well-established
on the authorities that an inference adverse to a litigant may be drawn if that
litigant fails to call a witness who could reasonably be expected to provide
supporting evidence. In Buksh v. Miles, 2008 BCCA 318, the British
Columbia Court of Appeal provides guidance on the factors which inform the
analysis of whether an adverse inference should be drawn for the failure to
call a treating physician. The factors include the following: the explanations
proffered for not calling a witness, the nature of the evidence that could be
provided by the witness and the extent of disclosure of that physician’s
clinical notes.

[122]     Dr. Coppin’s
complete records were disclosed to the defence. I have no grounds for assuming
that Dr. Coppin’s evidence could not have been obtained by the defence.

[123]     Mr. Midgley’s
counsel points out that Dr. Coppin first became involved with
Mr. Midgley’s care more than five years after the 2004 Accident and only
when his long-term family physician died suddenly. Dr. Coppin apparently provides
homeopathic hormonal balancing and anti-aging treatments at his clinic.
Mr. Midgley testified that Dr. Coppin treated him regarding his heart
palpitations and hormone balancing. It is not alleged that this condition is
related to the 2004 Accident.

[124]     I accept
Mr. Midgley’s counsel’s submission that, given the nature of the treatment
Dr. Coppin provided, it cannot reasonably be inferred that Dr. Coppin
could have provided cogent evidence in this case, particularly in light of the
multitude of other medical opinions proffered by Mr. Midgley.

[125]     In my
view, this is not an appropriate case to conclude that an adverse inference
should be drawn against Mr. Midgley for his failure to call
Dr. Coppin.

Conclusions on
Mr. Midgley’s Condition

[126]    
Mr. Midgley contends that, as a result of the 2004 Accident, he
sustained the following injuries:

·       injuries
to his neck;

·       a
torn labrum in his right hip;

·       injuries
to his low back;

·       chronic
pain disorder, depression and anxiety.

[127]     In this
section, I will set out my findings on Mr. Midgley’s condition, including
the assessment of the severity of his persisting symptoms. I will address
causation in the next section of these reasons.

[128]     I note
that Mr. Midgley is not seeking to prove that the mild disc protrusion at
L5/S1 initially revealed by the CT scan of his lumbar spine in December 2004
was caused by the 2004 Accident. I also note parenthetically that neither does
his counsel assert that the cardiac problems Mr. Midgley experienced in
2008 are related to the 2004 Accident.

[129]     It is key
to observe that the medical experts who assessed Mr. Midgley relied on
him, to varying degrees, to describe his history and the multiple medical
opinions adduced in this case have been based to a large extent on
Mr. Midgley’s subjective reporting of his symptoms.

[130]     As was
emphasized by defence counsel, the weight that can be given to those experts
opinions ultimately turns on the court’s assessment of Mr. Midgley’s
evidence at trial and the consistency of that evidence with the information
that he previously communicated to the various professionals who treated and
assessed him; Edmondson v. Payer, 2011 BCSC 118 at para. 21, aff’d
2012 BCCA 114.

[131]    
Insofar as the defence submissions relating to Mr. Midgley’s
evidence at trial and the alleged inconsistencies with the information he
previously provided to various medical professionals, the court’s observations
in Edmondson are instructive:

[34]      The difficulty with
statements in clinical records is that, because they are only a brief summary
or paraphrase, there is no record of anything else that may have been said and
which might in some way explain, expand upon or qualify a particular doctor’s
note. The plaintiff will usually have no specific recollection of what was said
and, when shown the record on cross- examination, can rarely do more than agree
that he or she must have said what the doctor wrote.

[132]     These
observations are particularly apt in this case, in which Mr. Midgley has
seen a multitude of health care professionals and physicians over an eight-year
period, “particularly given the human tendency to reconsider, review and
summarize history in light of new information”: Burke-Petramala v. Samad,
2004 BCSC 470 at para. 104. In the circumstances, it is not surprising
that some variation can be found between Mr. Midgley’s testimony and the
entries in the clinical records, which purport to record his history.

[133]     The
overarching submission of the defence is that Mr. Midgley is exaggerating
the severity of his current complaints.

[134]    
The following hospital record from July 25, 2008, was put to
Mr. Midgley in cross-examination:

He is still very active, though,
doing a lot of weights. He had a very hard work out the preceding
afternoon/morning and he had no chest pain during it.

[135]     The
context of this entry must be kept in mind. Mr. Midgley was attending the
hospital in the middle of the night for an unrelated medical issue – heart
palpitations. We do not know the questions posed by the doctor that elicited
the recorded information and the notation does not purport to be a direct
quotation. This may have been the doctor’s words, not Mr. Midgley’s, and Mr. Midgley
would not have had any opportunity to correct any misunderstanding of what he
said. Nor do we know everything that Mr. Midgley may have said to the
attending physician.

[136]     On the
totality of the evidence, I cannot conclude that Mr. Midgley attempted to
mislead the court or exaggerate or embellish the extent of his injuries or the
severity of his current symptoms to advance his litigation objectives. I find
that Mr. Midgley was and is motivated to be as physically active as
possible. In my view feigning injuries or a contrived disability would be incompatible
with Mr. Midgley’s life-long focus on maintaining his physical
conditioning and the pride he took in his physical achievements. Notably, none
of the physicians who assessed Mr. Midgley have found any amplification of
his symptoms or exaggerated pain behaviour.

[137]     I next
address the injuries Mr. Midgley alleges he sustained in the 2004
Accident.

[138]     The
evidence shows that in the 2004 Accident, Mr. Midgley sustained a mild
cervical and thoracic spine injury which resolved within a matter of weeks.

[139]     At trial,
Mr. Midgley’s primary complaint was the persistent pain that is centered
in and around his right buttock. Mr. Midgley described a “toothache” type
of sensation deep in his right hip in the buttock area which has persisted
since the 2004 Accident. It is worse with the internal or external rotation of
his hip. The pain sometimes radiates into his legs. Walking and standing for a
prolonged period aggravates his symptoms.

[140]    
In cross-examination, Dr. O’Connor testified that buttock pain can
emanate from either the back or the hip. His explanation was as follows:

Patients with back pain can have
buttock pain and patients with hip pain can have buttock pain, so the buttock
to me means that either one of those things are on the list of possibilities as
far as the possible cause of buttock pain.

[141]     It is
uncontroversial that the medical evidence establishes that, as of 2011,
Mr. Midgley had a torn labrum in his right hip.

[142]     Since the
2004 Accident, Mr. Midgley has also experienced persistent low back pain
and tenderness with intermittent spasms. He routinely wears a back brace and
belt for support. It is the right side of his back that bothers him more. He
continues to experience discomfort and stiffness on a daily basis in his lumbar
spine and paralumbar spine.

[143]     Since the
2004 Accident, Mr. Midgley described having a pattern of “good days” and
“bad days”. On a good day, he is able to perform his routine activities, but on
his bad days, which are at least twice a week, his daily activities are
severely restricted by his symptoms.

[144]     The
evidence also shows that since the 2004 Accident, about six or seven times a
year, Mr. Midgley has experienced an aggravation of symptoms in his right
buttock and lumbosacral junction and paraspinal muscles. I accept
Mr. Midgley’s evidence that two to three episodic aggravations per year
cause him to experience severe pain, which is debilitating. These episodic aggravations
usually last two to three days. His symptoms are more intense in the colder
months of the year.

[145]     I find
that, after the 2004 Accident, Mr. Midgley took reasonable steps to try to
improve his condition. After the 2004 Accident, Mr. Midgley used, on the
recommendation of his doctor, anti-inflammatories and muscle-relaxant
prescription medication. Mr. Midgley also attended physiotherapy,
chiropractic and acupuncture treatments and prolotherapy and massage therapy.
Having found that none of these modalities resulted in any significant
improvement in his condition, he now follows a regime of homeopathic medication
and hormone therapy. For the most part, he now eschews prescription pain
medication.

[146]     There is
no cogent evidence that the symptoms of Mr. Midgley’s injuries and, in
particular, the labral tear in his hip, would have improved if he had continued
to pursue the traditional modalities of treatment.

[147]     Mr. Midgley
also followed his doctor’s recommendation to perform light gym workouts. His
workouts continue to be focussed at maintaining his fitness level but not
aggravating his back and hip injuries. He is clearly motivated to maintain his
fitness level as high as possible. The intensity of his current workout regime
varies with his symptoms, but I find that the intensity and duration of his
sessions are considerably less than those workouts and activities that he
enjoyed prior to the 2004 Accident. His wife summarized the changes in his
workout regime with her candid observation that he no longer “sweats” at the
gym.

[148]     I accept
that Mr. Midgley suffers from chronic pain symptoms that Dr. Miller,
the psychiatrist for the defence, stated would be “sufficient for a diagnosis
of chronic pain disorder.” He also has suffered from depression and anxiety
symptoms since the 2004 Accident. Dr. O’Breasail and Dr. Miller agree
that in 2006, Mr. Midgley likely suffered a Major Depression, although his
depressive symptoms have remitted to a significant extent.

[149]     In the
years following the 2004 Accident, Mr. Midgley experienced severe mood
difficulties and suffered bouts of irritability and anxiety. As a result, the
relationship with his family deteriorated and his marriage was strained.
Notably, Mr. Midgley’s then teen-age son moved out of his home during this
period. Mr. Midgley’s social life has diminished because of his
limitations.

[150]     Mr. Midgley
also began consuming alcohol and, on his own admission, he drank daily and to
excess, in order to alleviate his physical and mental distress and his
frustration with his level of function. He did stop drinking alcohol for
approximately six months, but he has resumed consuming alcohol in an effort to
alleviate his symptoms.

[151]     My best
assessment is that Mr. Midgley currently continues to suffer from chronic
pain, anxiety and depression symptoms, as well as some mood disturbance. He
also continues to suffer from sleep disturbances.

[152]     I am
fortified in my conclusions regarding Mr. Midgley’s current condition by
the evidence of the witnesses called by Mr. Midgley. Without exception, I
found them to be credible witnesses and I found their evidence reliable
regarding their respective observations about the changes in Mr. Midgley
after the 2004 Accident.

[153]     Ms.
Midgley candidly testified regarding her observations about the changes in her
husband after the 2004 Accident. She noted his mood changes and irritability
and the difficulties he encounters with his episodic flare-ups. She has also
observed his sleeping difficulties and his problems with standing and sitting
for any prolonged periods of time. She corroborated that he sometimes is
required to rely on his disability sticker when parking his car, which causes
him some embarrassment. This is to ensure that he has sufficient room to
ingress and egress his vehicle. Her distress over Mr. Midgley’s self-medication
with alcohol after the 2004 Accident was palpable in her testimony.

[154]     Mr. Yates,
a Chilliwack businessman, who has known Mr. Midgley since approximately
1986, also gave credible testimony about his observations of the significant
changes in Mr. Midgley following the 2004 Accident. In the years prior to
the 2004 Accident, Mr. Yates played golf and baseball with
Mr. Midgley and worked out at the same gym. He never observed
Mr. Midgley having any physical limitations with regard to any activities.
He described Mr. Midgley prior to the 2004 Accident as “vibrant and
tough”. Since the 2004 Accident, he has never seen Mr. Midgley without his
back support. He has observed that Mr. Midgley’s gym workouts are
significantly restricted. According to Mr. Yates, Mr. Midgley is
“broken” and “not the same guy”.

[155]     In 2007,
Mr. Yates hired Mr. Midgley to work at one of the private liquor
stores he owns in Sardis. After approximately six weeks, Mr. Yates and
Mr. Midgley mutually agreed that was not suitable employment for
Mr. Midgley, because he could not perform the repetitive lifting of the
heavy cases.

[156]     Mr. Bill
Miller, another Chilliwack businessman and former neighbour and employer of
Mr. Midgley, also testified about the changes in Mr. Midgley after
the 2004 Accident. Prior to the 2004 Accident, he described Mr. Midgley as
very strong, active and driven. Subsequent to the 2004 Accident, he observed
that Mr. Midgley appeared to be in a lot of discomfort because he was
walking and sitting differently.

[157]     In 2006,
Mr. Miller had offered Mr. Midgley a desk job in his steel brokerage
business, but found after a month or so that Mr. Midgley was not able to
focus nor endure the sitting requirements. He then hired Mr. Midgley to
provide personal training instruction to his staff and family members. They
too, mutually decided to part ways in 2007, because Mr. Midgley was
routinely cancelling the scheduled training sessions on account of his pain
symptoms.

[158]     Andy
Sylvester has known Mr. Midgley since approximately 1987 and has seen him
regularly since 1993, both socially and at the gym. He described
Mr. Midgley as a “grin and bear it” type of individual. Prior to the 2004
Accident, he described Mr. Midgley as being in top physical shape and that
he was a very outgoing, charismatic and positive individual. Mr. Sylvester
observed significant negative changes in both Mr. Midgley’s physical
abilities and mood following the 2004 Accident. In his testimony, he described
Mr. Midgley, who was then wearing a back brace, encountering difficulties
getting in and out of a motor vehicle. According to Mr. Sylvester,
Mr. Midgley’s exercise routine at the gym has changed substantially and it
appears that he has engaged in more of a “rehabilitation type” program.

[159]     A careful
review of the videos of surveillance submitted by the defence does not
demonstrate any inconsistencies with my findings. Moreover, there was no
evidence that any of the medical experts were asked to comment on what the
videos may have indicated about Mr. Midgley’s condition.

[160]     In summary
on this issue, I find Mr. Midgley’s symptoms are genuine. He has endured
significant and chronic pain, notwithstanding his efforts to minimize his
symptoms. He regularly experiences varying degrees of pain and discomfort in
his hip, back and buttock and he suffers from episodic flare-ups of his
symptoms. He also suffers from depressive and anxiety symptoms.

[161]     In the
end, the question of Mr. Midgley’s prognosis is difficult because, as of
the date of trial, although Dr. O’Connor had recommended a referral to a
surgeon for consideration of labral hip repair/resection and removal of the
cam-type boney impingement, Mr. Midgley had not yet seen a surgeon.

[162]     I accept
Dr. O’Connor’s opinion that without surgery, Mr. Midgley is unlikely
to experience any measurable improvement in his condition. There is a
possibility that with surgery, Mr. Midgley will experience a decrease in
the frequency and severity of his episodic aggravations of his hip, buttock and
back pain. The preponderance of the psychiatric evidence, along with the lay
evidence that I accept, supports a finding that if Mr. Midgley continues
to suffer chronic pain, he will likely continue to experience mood difficulties
and depressive and anxiety symptoms. The cognitive therapy recommended by the
psychiatrists may bring him some relief of his psychological symptoms.

[163]     In my
view, on balance, it is more likely than not that Mr. Midgley’s symptoms will
persist and limit his functions indefinitely.

[164]    
I will address the functional capacity evaluations and whether Mr. Midgley’s
injures have impacted his income-earning capacity in the section on damages.

CAUSATION

[165]     In order to
justify any compensation for his condition, Mr. Midgley must establish a
causal connection between the defendants’ unlawful acts and his condition.

[166]     Causation
is a central issue in this case. Mr. Midgley submits he has met the burden
of proving that the defendants’ negligence caused the constellation of symptoms
from which he now suffers. The defence forcefully submits that Mr. Midgley
has not discharged his burden.

Legal Framework

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

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

[169]     The “but
for” test need not be determined with scientific precision. Rather, causation
is a practical question of fact which can be best answered by ordinary common
sense: Snell v. Farrell, [1990] 2 S.C.R. 311 at 328.

[170]     A plaintiff
need not establish that a defendant’s tortious conduct is the sole cause of the
injury. A defendant will be fully liable for the harm suffered by a plaintiff,
even if other causal factors for which he is not responsible were at play in
producing the harm, as long as the plaintiff establishes a substantial
connection between the injuries and the defendant’s negligence beyond the “de minimus”
range: Farrant v. Laktin, 2011 BCCA 336 at paras. 9 and 11; Athey
v. Leonati, [1996] 3 S.C.R. 458; Resurfice Corp v. Hanke, 2007 SCC
7; Clements v. Clements, 2012 SCC 32; Hunt v. Ugre, 2012 BCSC
1704 at para. 120.

[171]     The court
must be cautious when inferring causation from a temporal sequence; that is,
from a consideration of pre-accident versus post-accident condition. In cases
where causation is asserted primarily on a temporal relationship between the
negligent conduct and injury in question, the authorities mandate that a “close
scrutiny of the evidence is required because the inference from a temporal
sequence to a causal connection is not always reliable”: Hardychuk at para. 130.
See also: Madill v. Sithivong, 2012 BCCA 62 at para. 20; White
v. Stonestreet, 2006 BCSC 801 at paras. 74-75. However, the
authorities recognise that temporal reasoning is not an illegitimate analysis
if invoked in the appropriate circumstances: Erickson v. Sibble, 2012
BCSC 1880 at para. 223.

[172]    
When assessing medical evidence, the court must be mindful that in the
legal context the “but for test” need only be established on a balance of
probabilities; a plaintiff must show that it is more likely than not that,
without the tort, the injury or medical condition would not have occurred. This
is to be contrasted with the more exacting standard that approaches scientific
certainty in the medical context. The court in Tsalamandris v. MacDonald,
2011 BCSC 1138 at paras. 145-146 (var’d on other grounds, 2012 BCCA 239),
provides the following instructive formulation of the governing principles:

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

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

(Emphasis added.)

Discussion

[173]     The primary
contention of the defendants is that Mr. Midgley has failed to prove that
he sustained anything other than a minimal injury in the 2004 Accident.

[174]     The
overarching submission of the defence was that “this was a nothing accident”.
The tenor of the defence submission was that, since there was no damage to
Mr. Midgley’s motor vehicle, he could not have sustained the damage he
alleges in the 2004 Accident.

[175]     There is
no legal principle that holds that if a collision is not severely violent or if
there is no significant damage to a motor vehicle, the individual seated within
that vehicle at the time of the impact cannot have sustained injuries. The authorities
clearly establish that, while the lack of vehicle damage may be a relevant
consideration, the extent of the injuries suffered by a plaintiff is not to be
measured by the severity of the force in a collision or the degree of the
vehicle’s damage. Rather, the existence and extent of a plaintiff’s injuries is
to be determined on the basis of the evidentiary record at trial: see Gordon
v. Palmer (1993), 78 B.C.L.R. (2d) 236.

[176]     As I
referred to earlier, the defence led no opinion evidence to support the
assertion that the force of the impact in this case was incapable of producing the
injury alleged by Mr. Midgley. I accept Mr. Midgley’s evidence
regarding his body position at the time of impact and that, as far as he was
concerned, the collision was jarring. In any case, there is expert medical
evidence, which I find persuasive, that supports the relationship between the
2004 Accident – and, in particular, Mr. Midgley’s body position at the
time of impact – and the existence of his injuries.

[177]    
On the totality of the evidence, I am persuaded that Mr. Midgley
sustained an injury in the 2004 Accident, in spite of the fact that his vehicle
apparently was not damaged.

(i)         Was
the hip labral tear and low back injury caused by the 2004 Accident?

[178]     A right
hip MRI arthrogram performed on Mr. Midgley on July 27, 2011, showed
femoral acetabular impingement and a labral tear.

[179]    
Mr. Midgley’s submissions are grounded in Dr. O’Connor’s
opinion that Mr. Midgley’s labral tear was caused by the 2004 Accident. He
opines in his report dated August 10, 2011 as follows:

This MRI confirms my clinical
findings of femoral acetabular impingement and my suspicion of a labral tear.
The labral tear was caused by the accident. The tear is what is causing the flares
of pain he gets 6-7 times a year. Once he gets into these flares, back pain
also flares. This is a typical finding in patients with labral problems.

[180]     For the
reasons set out earlier, I do not accept the defence contention that
Dr. O’Connor was “misled” by Mr. Midgley about his body position at
the time of impact and his difficulties returning to work on the green chain
after the 2004 Accident. In cross-examination, Dr. O’Connor demonstrated a
sufficiently accurate understanding of Mr. Midgley’s work history after
the 2004 Accident. I also find that Mr. Midgley accurately reported to
Dr. O’Connor regarding the onset and severity of his symptoms.

[181]     The
medical evidence shows that the symptoms of labral tears often do not present
in a straightforward fashion and are often difficult to diagnose. I accept Dr. O’Connor’s
evidence that patients with hip labral tears often poorly or vaguely describe a
variety of non-specific symptoms, such as an ache or burning in the knees or
sacroiliac joint, or as low back pain.

[182]     According
to Dr. O’Connor the link between Mr. Midgley’s deep buttock pain and the
aggravation of his back pain was a key factor. Dr. O’Connor explained that
patients who have a significant hip labral injury often describe back and
buttock pain that develops as the hip gets aggravated. Frequently, as in
Mr. Midgley’s case, the back pain becomes the main focus. I found his testimony
compelling.

[183]     Mr. Midgley’s
testimony regarding his symptoms is consistent with Dr. O’Connor’s
observation that patients who have a significant hip labral injury often
imprecisely describe pain in the hip, back and buttock, particularly when the
hip injury is aggravated. Dr. McKenzie also affirmed that some individuals
may not identify pain in the correct anatomical structure and that pain in the
hip and back is often difficult to distinguish. Notably, Ms. Zinck, an
expert witness who was called by the defence, affirmed that many patients
cannot distinguish between hip pain and back pain.

[184]     Dr. O’Connor
points out that the mechanism of the injury in the 2004 Accident, despite it
being a low velocity impact, was an important factor in his analysis. According
to Dr. O’Connor, Mr. Midgley’s position of being twisted to the right
put his right hip into a hyperflexed, internally rotated, and relatively
adducted position to his trunk, which placed him at “prime risk for injury to
his labrum on the right side and injury to his low back.”

[185]     Dr. O’Connor
described Mr. Midgley’s particular injury as a separation or pulling away
of the labrum or cartilage rim around the socket on the lateral side of the
right hip, as well as a complex tear of the anterior aspect of the labrum.

[186]     Although Dr. O’Connor
initially suspected a posterolateral tear, the arthrogram confirmed a labral
tear of the anterior margin. In cross-examination Dr. O’Connor persuasively
discounted the defence postulation that pain from this type of labral tear
would be more to the anterior than the posterior of the body. He reiterated that
symptoms from a labral tear often do not present in a straightforward fashion
and that patients who describe vague, non-descriptive hip pain sometimes
describe that pain “as front, sometimes lateral, sometimes posterior or buttock
and sometimes all the way up quite close to the back or low back.”

[187]     I found
Dr. O’Connor to be a very careful and objective witness. It was clear from
his testimony, that he had thoroughly reviewed Mr. Midgley’s records. His
opinion was not weakened in the face of a thorough cross-examination.

[188]     For the
reasons that follow, I do not accept the defence submission that Mr. Midgley’s
complaints of hip pain did not “really come forward until he was diagnosed with
a labral tear in the summer of 2011”.

[189]     I find
Mr. Midgley’s evidence on the onset of his symptoms persuasive. I accept
his testimony that, immediately after the 2004 Accident, he knew “something was
wrong” and he felt pain down to his knees. He described his hips and lower back
“aching like a toothache”. He attended the emergency room immediately after the
Accident.

[190]     As was
referred to by Dr. O’Connor in his cross-examination, in his first
clinical entry, on March 29, 2004, following the 2004 Accident,
Dr. Klassen referred to pain with “right hip flexion”. It was the right
hip in which the MRI arthrogram showed Mr. Midgley had sustained a labral
tear. On April 6, 2004, Dr. Klassen notes right “SI” or buttock pain,
right leg pain and pain in both hips.

[191]     In August
2006, Mr. Midgley reported to Ms. Fischer tightness in his groin
muscles and a “burning” sensation in his hips.

[192]     It is also
noteworthy that Dr. Shuckett, when she examined Mr. Midgley in 2007,
noted that flexion of his right hip elicited groin pain. She pointed out that
soon after the Accident, he complained of right hip pain and there is no
indication that he had those complaints before the 2004 Accident. She testified
in cross-examination that the acetabular labral tear in Mr. Midgley’s
right hip revealed by the MRI arthrogram in 2011, was “most likely causally
due” to the 2004 Accident.

[193]     Neither  Dr.
Klassen, Dr. Hamm nor Dr. McKenzie diagnosed the labral tear.
However, as I mentioned earlier, the medical evidence supports a finding that
labral tears are notoriously difficult to diagnose. Dr. Hamm, who
diagnosed Mr. Midgley with chronic mechanical low back pain, testified
that on the examination, Mr. Midgley reported hip and buttock pain. He
also testified that Mr. Midgley’s body position was more important in
assessing his injury than the damage to the vehicle. Dr. McKenzie, who
diagnosed Mr. Midgley as suffering from “non-specific low back pain” as a
result of the 2004 Accident, noted that Mr. Midgley had anterior hip pain
when he adducted his hips during his assessment. Notably, the arthrogram showed
a labral tear in the anterior margin. He also noted that Mr. Midgley
reported hip pain which he described as a burning sensation and that on
examination he was tender over the sacroiliac joints.

[194]     The
defence has not suggested a plausible alternate event which would explain the
development of Mr. Midgley’s symptomatology in this case .The defence
submission that the labral tear was a function of Mr. Midgley’s
long-standing history of kickboxing is based upon speculation and is not
supported by the evidence. Dr. O’Connor discounted this theory in
cross-examination, pointing to Mr. Midgley’s pre-2004 Accident level of
functioning. I accept Dr. O’Connor’s evidence that labral tears are rarely
asymptomatic.

[195]     I turn to
address the opinion of the defence expert, Dr. Schweigel. Dr. Schweigel
did not diagnose a labral tear, although it clearly existed when he examined
Mr. Midgley.

[196]     He opined
that Mr. Midgley’s current low back symptoms are mechanical in nature and are
caused by his pre-existing condition – the degenerative changes shown on his imaging
results. He says that Mr. Midgley’s current symptoms are not due to any
injuries he sustained in the 2004 Accident. He also stated in his report that
Mr. Midgley’s pain in his right buttock was “probably from the
degenerative disc disease in his lumbar spine”.

[197]     In
cross-examination, Dr. Schweigel conceded that, based on degenerative
changes on imaging, he is not able to predict when an individual will develop
back pain. He also acknowledged that it is normal for individuals to develop
degenerative changes in their spine as they age and that not all of those
individuals with degenerative changes will develop back pain.

[198]     Dr. Schweigel,
in cross-examination, also conceded that if Mr. Midgley’s hip was in a
flex position at the time of the impact, it could “potentially cause a labral
tear” but that it would be more suspicious if his knee struck the dash. He also
testified that Mr. Midgley’s description of pain was atypical and that,
usually with a labral problem, patients complain of groin pain that goes through
to the buttock. However, in cross-examination, Dr. Schweigel conceded that
hip problems do not always manifest themselves as groin pain. This is
consistent with the evidence of Dr. O’Connor on this point.

[199]     In my view
Dr. O’Connor, as well as Dr. McKenzie, persuasively discounted
Dr. Schweigel’s opinion regarding Mr. Midgley’s current complaints.

[200]     In his
report dated September 9, 2011, Dr. O’Connor sets out why he disagrees
with Dr. Schweigel. In discounting Dr. Schweigel’s postulation, Dr. O’Connor
points to the fact that Mr. Midgley was relatively asymptomatic and
functioning at a high level prior to the 2004 Accident. Dr. O’Connor also
affirmed in his testimony that medical professionals cannot predict the
manifestation of back pain from degenerative changes shown on imaging.

[201]    
In cross-examination, Dr. McKenzie also disagreed with the notion that degenerative changes are causing Mr. Midgley’s
back pain. He testified as follows:

I explained, that the fact that
he has pre-existing areas of degenerative changes do not translate into pain
now, or even pain in the future. (Emphasis added.)

[202]     I accept Dr. McKenzie’s
evidence on this point.

[203]     Based on
the foregoing and the significant concessions Dr. Schweigel made in
cross-examination, I do not consider it safe for the court to rely on
Dr. Schweigel’s opinion. The preponderance of the evidence does not
support his conclusions regarding causation. I have far greater confidence in
the opinion of Dr. O’Connor as to causation, which I prefer to the opinion
of Dr. Schweigel on all fronts where their opinions diverge.

[204]     In
determining causation, I have not overlooked the defence assertion that
Mr. Midgley had pre-existing problems with his low back and hips. He had
on occasion visited a chiropractor for what Mr. Midgley had described as
“tune-ups” for his back, primarily in the period he was training as a
body-builder. There were no visits recorded between 1997 and July 2003. There
is one visit in 2003 and one visit in March 2004, prior to the 2004 Accident. Notably,
Dr. O’Connor was aware of Mr. Midgley’s prior chiropractic treatments
when formulating his opinion.

[205]     In support
of their assertion, the defence primarily relies on a note taken by a
chiropractor, Dr. Maier, regarding a visit from Mr. Midgley on August 17,
2004, some five months after the 2004 Accident. The notation refers to “back
and hip pain for four to five years”. In my view, it would be inappropriate to
attach much significance to this single clinical entry. We do not know the
questions Dr. Maier asked Mr. Midgley. The defence, although having
subpoenaed him, chose not to call Dr. Maier.

[206]     The
context of this notation must be considered. Mr. Midgley explained in
cross-examination, that since it was the first time he had seen Dr. Maier,
he gave him a full medical history. Mr. Midgley’s testimony on this point,
which I accept, was as follows:

That I had just another motor vehicle accident four or five
months ago and how that was affecting my lower back and hips and then once
in a while I would have, over the last four to five years, I would have
a tweak in my lower back. But nothing that I felt needed or warranted a
doctor visit or chiropractor visit. So I just told him about everything that I
had.

[207]     Nor am I
persuaded that one entry in the clinical records in 2002, wherein Dr. Klassen’s
locum notes back pain is significant in the context of the evidence as a whole.
Notably, Dr. Schweigel comments in his report that prior to the 2004 Accident,
Mr. Midgley was “relatively asymptomatic in his family physician’s notes with
respect to the lumbar spine”.

[208]     The
preponderance of the evidence supports a finding that prior to the 2004
Accident, Mr. Midgley was very physically active recreationally and
performing a manual labour job. I do not find persuasive the fact that an
individual such as Mr. Midgley, who was engaged in physically rigorous
activities, on occasion sought chiropractic treatment for his back and very
infrequently his left hip. In the years prior to the 2004 Accident, his back
symptoms bothered him only very occasionally. The preponderance of the evidence
and the probabilities in this case do not demonstrate that prior to the 2004 Accident
Mr. Midgley’s back symptoms were significant or seriously interfered with his
lifestyle, his employment, or recreational pursuits. In contrast, after the
2004 Accident, his back symptoms were much more persistent and severe.

[209]     In short, I
have concluded that the defence position is not supported by the whole of the
evidence. I am not persuaded that prior to the 2004 Accident, Mr. Midgley
experienced significant symptoms with either his back or hips.

[210]     I
recognize the dangers inherent in applying temporal reasoning in determining
legal causation. However, when the timeline of the pertinent events is
scrutinized in the context of the totality of the evidence, the inference of
causation is compelling.

[211]     Based on
the opinion of Dr. O’Connor and Dr. Shuckett’s testimony, in
conjunction with the preponderance of the lay evidence material to the issue of
causation that I accept, I conclude that Mr. Midgley sustained a labral tear in
his right hip in the 2004 Accident. Based on the opinions of Dr. O’Connor,
Dr. Shuckett, Dr. McKenzie, Dr. Hamm and Dr. Klassen, in
conjunction with the lay evidence material to causation that I accept, I also
conclude that Mr. Midgley sustained an injury to his low back in the 2004
Accident, which has caused him to experience chronic low back pain. For the
purposes of causation, it is not necessary for the court to determine, as a
matter of medical diagnosis, a precise description for the lumbar spine injury
he sustained.

[212]     In summary
on this issue, I have concluded that Mr. Midgley has met the “but for”
test mandated in the authorities. I am satisfied that it is more likely than
not that Mr. Midgley sustained injuries to his hip and back in the 2004
Accident. Mr. Midgley would not have sustained these injuries and the
constellation of symptoms in his hips, back and buttocks I have described
earlier in these reasons, but for the negligence of the defendants.

(ii)        Did the 2004 Accident cause
psychological injury?

[213]     The
principles which inform the analysis of causation of physical injury apply to
causation of psychological injury: Hunt at para. 123.

[214]     The
psychiatric evidence clearly establishes that Mr. Midgley suffers from a
chronic pain disorder; he also suffers from some mood disturbance, and he
continues to experience depression and anxiety symptoms.

[215]     Mr. Midgley
did not have any psychiatric history prior to the 2004 Accident.

[216]     Mr. Midgley
has resumed taking anabolic steroids in 2009, under the direction of
Dr. Coppin. Mr. Midgley had taken steroids previously but had ceased
doing so some years prior to the 2004 Accident. His mood disturbance, sleep
disturbance and anxiety symptoms pre-dated his resumption of steroid use. While
both psychiatrists who testified at trial were in agreement that
Mr. Midgley’s emotional lability is likely detrimentally influenced by his
continued usage of anabolic steroids, I am not persuaded that in the
absence of the 2004 Accident, Mr. Midgley would have developed the
constellation of psychological symptoms and sleep disturbance from which he now
suffers.

[217]     Based on the
psychiatric evidence, in conjunction with the preponderance of the lay evidence
material to the issue of causation, I conclude that Mr. Midgley has
satisfied the “but for” test mandated by the authorities. On balance, I find
that absent the 2004 Accident, Mr. Midgley would not have developed his
current constellation of psychological symptoms.

DAMAGES

[218]    
I next address Mr. Midgley’s claim for damages under the following
headings:

(a)           
non-pecuniary damages;

(b)           
loss of past and future earning capacity;

(c)           
cost of future care;

(d)           
loss of housekeeping capacity;

(e)           
special damages.

Non-Pecuniary Damages

[219]     Mr. Midgley
seeks an award of $125,000 for non-pecuniary damages. The defence submits that
non-pecuniary damages should be assessed in the range of $20,000 to $70,000 and
that if Mr. Midgley’s evidence is accepted his injuries could attract
damages in the range of $100,000.

[220]     Non-pecuniary
damages are intended to compensate a plaintiff’s pain, suffering, and loss of
enjoyment of life. While recognizing that the loss of good health cannot be
valued in monetary terms, the “functional approach” attempts to assess the
compensation required to provide a plaintiff with reasonable solace for his
injuries. The award should compensate a plaintiff for the non-pecuniary loss he
has suffered up to the date of the trial and for that loss he will suffer in
the future. An award for non-pecuniary damages must be fair and reasonable to
both parties: Lindal v. Lindal, [1981] 2 S.C.R. 629 at 637; Hmaied v.
Wilkinson, 2010 BCSC 1074 at para. 55; Farand v. Seidel, 2013
BCSC 323 at para. 69.

[221]     While
fairness is assessed by reference to awards made in comparable cases because of
the requirement for an individualized assessment, it is impossible to develop a
“tariff”. Each case must be decided on its own unique facts because no two individual
plaintiffs’ personal experiences in dealing with their injuries and the adverse
consequences of those injuries are identical: Lindal at 637; Kuskis
v. Hon Tin, 2008 BCSC 862 at para. 136; Kapelus v. Hu, 2013 BCCA
86 at para. 15; Dilello v. Montgomery, 2005 BCCA 56 at para. 25.

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

[223]     The
essential principle in the assessment of damages is that the plaintiff must be
placed in the position he or she would have been in absent the defendants’
negligence. It is also fundamental to the assessment of damages that a defendant
must take the plaintiff as he is, even where because of a unique susceptibility
or vulnerability, the injury was more dramatic or unexpectedly severe than one
would expect an average person to sustain: Athey; Erickson at para. 250.

[224]     I have
concluded that the injuries Mr. Midgley sustained in the 2004 Accident
have caused him years of significant pain, suffering and loss of enjoyment in
life. Earlier in these reasons, I have set out my findings on the
progression of his symptoms.

[225]     As a
result of the injuries he sustained in the 2004 Accident, and the persistent
pain he experiences, Mr. Midgley’s level of participation in his
recreational activities and sports has been significantly curtailed. He is no
longer able to enjoy his previously active lifestyle. He is no longer capable
of performing strenuous manual labour.

[226]     Prior to
the 2004 Accident, Mr. Midgley, a former professional athlete, took
considerable pride in his superlative level of physical fitness and his ability
to engage in an active lifestyle. He was a robust and energetic individual with
a positive outlook on life. He has lost much of the joy he associated with
work, socializing and physical pursuits. The impact of his injuries has
dramatically and adversely impacted the quality and enjoyment of his life. As a
consequence of his physical limitations, he has developed self-image problems
and associated psychological symptoms. He experiences mood disturbances,
depression and anxiety symptoms.

[227]     Mr. Midgley’s
marriage is strained. Mr. Midgley has experienced difficulties with
physical intimacy since the 2004 Accident and the pain and discomfort from his
injuries has contributed to those problems. His distress over the limitations
caused by his injuries and its adverse impact on his marriage was palpable in
his testimony.

[228]     As of the
trial, it was not certain whether Mr. Midgley would have surgery to repair
his hip. If Mr. Midgley has surgery, the likelihood for any improvement in
his condition is uncertain. Without surgery, it is unlikely that he will ever
be pain-free. There is a real and substantial possibility he will be left with
a permanent partial disability.

[229]     If there
was a measurable risk that Mr. Midgley’s pre-existing but formerly largely
asymptomatic degenerative condition in his spine would have resulted in a loss
absent the 2004 Accident, then that pre-existing risk of loss must be taken
into account in assessing damages: Moore at para. 43. This is
pertinent because Mr. Midgley must be restored to the position he would
have been in absent the 2004 Accident, and not a better position: Athey
at para. 35.

[230]     In my
assessment of damages, the evidence I accept does not establish any measurable
risk that Mr. Midgley’s low back symptoms would have manifested themselves
as they have, absent the injuries he sustained in the 2004 Accident.
Accordingly, there is no principled basis on which to reduce the award for
damages.

[231]     I have
reviewed all of the authorities provided by both counsel. Although the cases
are instructive, I do not propose to review them in detail as they only provide
general guidelines. Considering Mr. Midgley’s unique circumstances, I
conclude a fair and reasonable award for non-pecuniary damages is $110,000.

Loss of Past Earning
Capacity and Loss of Future Earning Capacity

[232]     The
parties are significantly far apart on this head of damages. This head of
damages constitutes the most significant and complex aspect of Mr. Midgley’s
claim.

[233]     Mr. Midgley
seeks compensation of $380,120 gross or $266,084 (net of taxes) for loss of
past earning capacity and $700,000 for loss of future earning capacity. He is
also seeking compensation of $100,000 for the business loss he alleges he has
incurred as a result of his injuries.

[234]     The
defence disputes Mr. Midgley’s assertion that his income earning capacity
was impaired as a result of the injuries he sustained in the 2004 Accident. The
defendants argue that Mr. Midgley did not suffer any wage loss, except for
the few weeks of work he missed following the 2004 Accident and that his loss should
be assessed as $2,500. The essential contention of the defence is that
Mr. Midgley ceased working and went on short-term disability benefits in
October 2004, because he was tired of working at Weyerhaeuser and “this was his
ticket out.”

Legal Framework

[235]     The legal
principle that governs the assessment for loss of earning capacity is that,
insofar as is possible, the plaintiff should be put in the position he or she
would have been in but for the injuries caused by the defendants’ negligence: Lines
v. W & D Logging Co. Ltd., 2009 BCCA 106 at para. 185. It is
well-settled that an award for future loss of earning capacity represents
compensation for a pecuniary loss: Gregory v. Insurance Corporation of
British Columbia, 2011 BCCA 144 at para. 32. Compensation must be made
for the loss of earning capacity and not for the loss of earnings: Andrews
v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; X. v. Y, 2011
BCSC 944 at para. 188.

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

[237]    
As enumerated by the court in Falati v. Smith, 2010 BCSC 465 at para. 41,
aff’d 2011 BCCA 45, the principles which inform the assessment of loss of
earning capacity include the following:

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

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

(iii)      The court must assess
damages for loss of earning capacity, rather than calculating those damages
with mathematical precision: Mulholland (Guardian ad litem of) v. Riley
Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43. The assessment is
based on the evidence, taking into account all positive and negative
contingencies. The overall fairness and reasonableness of the award must be
considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11.

[238]     Although a
claim for “past loss of income” is often characterized as a separate head of
damages, it is properly characterized as a component of loss of earning
capacity: Falati at para. 39. It is compensation for the impairment
to the plaintiff’s past earning capacity that was occasioned by his or her injuries:
Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30; Bradley
v. Bath, 2010 BCCA 10 at paras. 31-32; X. v. Y at para. 185.

[239]     While the
burden of proof relating to actual past events is a balance of probabilities, a
past hypothetical event will be considered as long as it was a real and
substantial possibility and not mere speculation: Athey at para. 27.

[240]    
This court in Falati at para. 40 summarized the pertinent
legal principles governing the assessment of post-accident, pre-trial loss of
earning capacity and concluded that:

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

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

Functional Capacity
Evaluations

[241]     Before
turning to the analysis of this head of damages, it is necessary to summarize
the key aspects of various functional capacity evaluations of Mr. Midgley.

(i)         Jodi Fischer

[242]     Ms. Fischer,
who is an experienced occupational therapist, assessed Mr. Midgley on
August 3, 2006; she prepared a report dated March 23, 2007.

[243]     She
concludes that as of the date of her assessment, Mr. Midgley was not
physically capable of returning to his pre-injury occupation of green
end/veneer dryer operator. She states in her report that “he did not
demonstrate the ability to tolerate the prolonged static standing, forwarding
reaching or static trunk bending required” for that occupation.

[244]     In her
opinion, Mr. Midgley did not present with any “non-organic findings and
his reported level of pain enduring testing was consistent with the objective
test findings.” In her view, his subjective reports suggest that he has become “over-protective
of his lower back, thus avoiding activities and particular movements in fear of
symptom exacerbation and re-injury.”

[245]    
Ms. Fischer opined that Mr. Midgley was capable of work
activity in Sedentary (limited), Light, and Medium strength categories in the
National Occupation Classification (NCC), Dictionary of Occupations Titles
(DCT), and that he was capable of occasional lifting only in the entry level of
Heavy Strength ranges. In cross-examination, she acknowledged that there were
probably many jobs Mr. Midgley could do based on the physical abilities he
demonstrated during his assessment.

(ii)        Louise Craig

[246]     Ms. Craig,
who is a qualified physiotherapist, performed a functional capacity evaluation
on Mr. Midgley on June 11, 2010. Her report is dated June 28, 2010.

[247]     She also
concluded that Mr. Midgley did not meet the functional demands of a mill
worker or veneer/dryer operator.

[248]     She found Mr. Midgley
is limited for prolonged sitting, sustained and repetitive walking, heavy
lifting and carrying and that he has difficulty working at low levels,
crouching and sustained overhead reaching.

[249]     In her
view, he met the majority of occupational demands of a personal trainer and gym
owner, except that he had reduced tolerance for working at low levels. He could
not tolerate a sedentary occupation due to sustained sitting requirements.

[250]     Ms. Craig
observed that Mr. Midgley demonstrated instability in his right hip. She
found that, although Mr. Midgley may have underestimated his physical
abilities at times, he used high effort and exhibited competitive test
behaviour, and that her assessment findings generally supported his subjective
reports of pain.

[251]    
Ms. Craig concluded that Mr. Midgley’s competitive
employability had been reduced by his demonstrated functional limitations.

(iii)       Kim Zinck

[252]     Ms. Zinck
is not a functional capacity evaluator; she is a registered kinesiologist. She
performed an assessment of Mr. Midgley on April 10 and 12, 2007, on behalf
of his long-term disability insurer. The defence relied on her April 19, 2007,
report at trial.

[253]     In her
opinion, Mr. Midgley functioned at a “medium physical demand capacity.”
Based on her assessment, Mr. Midgley was primarily limited with activities
“involving forward bending/squatting to the ground”, frequent walking and
static standing. She concluded that Mr. Midgley would be suited for work
that allowed him flexibility to rotate between standing and sitting positions
and that limited the amount of walking to an occasional basis.

[254]     She
observed an increased altered gait at the end of both testing days and she
observed Mr. Midgley to demonstrate limitations with movements involving
right hip rotation.

[255]    
She concluded that Mr. Midgley’s reports of pain were magnified.
She found pain behaviours throughout testing and commented on his poor
“psychodynamics.” He appeared cautious and fearful of re-injuring himself.

(iv)       Rajni Dhiman

[256]     Ms. Dhiman
is an occupational therapist who conducted a functional capacity evaluation of Mr. Midgley
on June 8, 2005, at the request of Weyerhaeuser. She was called by the defence
to address her observations of Mr. Midgley at his assessment. Her opinion
was not tendered in evidence.

[257]     Notably
Mr. Midgley terminated the dryer outfeed tasks during the evaluation, reporting
increased “pulling” in his low back and a “raw” feeling in his buttocks, and
commenting that he should have ceased the activity earlier.

[258]    
She found no signs of exaggerated pain behaviour.

Was Mr. Midgley able to return to his former
position at Weyerhaeuser?

[259]     Mr. Midgley
was off work from October 2004 through to August 2005. Although I find that Mr. Midgley
was very motivated to return to Weyerhaeuser, his graduated return to work was
unsuccessful and he ceased working at Weyerhaeuser on October 26, 2005. I
reject the defence characterization of his efforts to return to his former
position at Weyerhaeuser as unreasonable. The weight of the evidence, both lay
and expert, amply supports a finding that because of the pain and physical
restrictions occasioned by the injuries he sustained in the 2004 Accident, Mr. Midgley
was incapable of fulfilling, on any sustained basis, the repetitive job demands
of a green end/veneer operator.

[260]     The
evidence of Dr. O’Connor, Dr. Hamm, Dr. Klassen,
Ms. Fischer and Ms. Craig, all support this finding. The consistency
of findings in the four functional capacity evaluations conducted over a
five-year period fortifies my conclusion.

What is Mr. Midgley’s residual earning
capacity?

[261]     For the
reasons set out below, I conclude that the preponderance of the evidence
overwhelmingly shows that Mr. Midgley’s competitive employability has been
reduced by his functional limitations.

[262]    
Dr. McKenzie, Dr. O’Connor, Dr. Hamm, Ms. Fischer,
Ms. Craig, Dr. Schweigel and Ms. Dhiman did not find pain
behaviour during their assessments of Mr. Midgley – however,
Ms. Zinck did. I prefer their evidence on this point to that of Ms. Zinck.
While I accept that, on occasion, Mr. Midgley may underestimate his
physical capabilities, I am not persuaded that, in view of his chronic pain,
that is surprising. He was and is protective of his injury because, on his own
admission, he was “afraid” of aggravating his injuries which he described as a “stabbing”
sensation in his right buttock/back. Moreover, there was no cogent evidence
that he could engage in activities at a more intense level without suffering additional
pain and discomfort.

[263]     Dr. Hamm
who, as I referred to earlier, is an occupational medicine specialist, opined
that Mr. Midgley was and is restricted from performing heavy strength,
physically demanding jobs. In his opinion, Mr. Midgley, because of his low
back pain, must avoid occupations demanding overexertion, “prolonged postures
or forceful repetitive bending and lifting activities.” While he stated in
cross-examination that Mr. Midgley, subject to skills, training and
experience, could do light and medium strength and sedentary jobs, he
emphasized that he would require ergonomic devices, and the ability to change
his postures as needed. He described Mr. Midgley as needing a sympathetic
and accommodating employer.

[264]     Dr. O’Connor’s
opinion is that Mr. Midgley is capable of moderate-level work but not on a
full-time basis. Accordingly, he did not recommend a return to full-time
employment but rather recommended that Mr. Midgley continue with his
entrepreneurial type of work.

[265]     Dr. O’Breasail
opined that Mr. Midgley has a permanent partial vocational disability
because of the injuries he sustained in the 2004 Accident. Dr. Miller, the
defence psychiatrist, opined that in his assessment, Mr. Midgley was capable
of limited work of “relatively low stress.”

[266]     The
functional capacity evaluation reports show that Mr. Midgley is capable of
performing light and medium-strength work. However, I accept Dr. O’Connor’s
opinion that performing at an evaluation does not necessarily equate with a
durable return to full-time employment. Mr. Midgley’s performance in a single
day of testing does not necessarily equate with his ability to repeat that
performance day in and day out for an extended period: Scoates v. Dermott,
2012 BCSC 485 at para. 193.

[267]     Moreover,
Mr. Midgley has limitations insofar as prolonged sitting, static standing
and sustained and repetitive walking. I also recognize that the episodic
aggravations Mr. Midgley experiences would detrimentally impact his attendance
at his employment with set hours. It can reasonably be inferred that Mr. Midgley
will be required to request some accommodation which permits him some
flexibility in whatever occupation he pursues.

[268]     In summary
on this issue, Mr. Midgley has proven that the injuries he sustained in
the 2004 Accident have impaired his earning capacity. However, that is only the
first step in the analysis. I must next consider whether or not there is a real
and substantial possibility that this impairment will generate a pecuniary loss.

Loss of Earning
Capacity to the Date of Trial

[269]     I turn to
address whether the impairment in Mr. Midgley’s capacity generated a pecuniary
loss in the post-Accident, pre-trial period.

[270]     After the
2004 Accident, Mr. Midgley worked for an investment office as a stock consultant
for approximately two months but he found he could not tolerate the prolonged
sitting. He also worked for his friend, Mr. Miller, in a steel company,
for approximately one month and as a personal trainer for Mr. Miller’s
staff and family, for about eight months. He also worked for his friend, Mr. Yates,
in a private Sardis liquor store for about six weeks. However, he could not perform
the heavy lifting required for the job. He also worked briefly as a
tree-topper.

[271]     In January
2009, Mr. Midgley established his own business by opening a gym and personal
training studio in Chilliwack (“the Gym”). The essential contention of Mr. Midgley
is that, having failed in his efforts to return to his Weyerhaeuser job and
having failed at working in a number of sedentary to moderate physically
demanding jobs provided by sympathetic employers, it was reasonable for him to open
the Gym.

[272]     If the
court accepts that Mr. Midgley suffered a loss of income earning capacity
because of the 2004 Accident, the defendants are not seeking to deduct from the
wage loss claim any of the short-term and long-term disability payments
received by Mr. Midgley. They assert, however, that even if the 2004
Accident had not occurred, he would likely have lost his job in December 2007 at
Weyerhaeuser, due to the lay-offs. Alternatively, they argue that he would have
likely lost his job in February /March 2009, when there was a further
downsizing at Weyerhaeuser.

[273]     Further,
the defence contends that Mr. Midgley has failed to mitigate his loss. They
say he made minimal, if any, effort to find alternate suitable employment that
would provide him with replacement income, other than short-term employment
from friends. They contend that Mr. Midgley, because of his lack of
experience, was bound to fail in the employment endeavours he did pursue.

[274]     I will
address each of these submissions in turn.

Likelihood of Lay-off from Weyerhaeuser

[275]     Mr. Paul’s
evidence established that there was a series of lay-offs and terminations at
Weyerhaeuser in December 2007. He explained that in 2007, there was a downturn
in the demand for Weyerhaeuser lumber products. Eighteen on-call list
associates and six on-shift associates were let go. Four of the six associates
who were terminated opted to take severance packages as they were near
retirement age. In February 2009, there were further lay-offs and by March
2009, 42 production associates were terminated.

[276]     Mr. Paul
explained that, because the Weyerhaeuser mill is non-union, the lay-offs and
ultimately the terminations were not determined by virtue of seniority alone. Weyerhaeuser
considered performance-related criteria which look at critical skills, attendance,
as well as a seniority or service component which made up 20 percent of the
overall assessment.

[277]     The uncontroverted
evidence shows that when Mr. Midgley was working at Weyerhaeuser, the mill
operated with 220 associates, salaried and hourly, and that those associates
worked seven days a week, 24-hours a day. By March 2009, there were only two
shifts, with a total of 110 employees. Mr. Paul explained that in March
2009, all but four of the 42 associates who were terminated had more service
than Mr. Midgley. He also pointed out that 20 of the terminations were
voluntary, presumably to benefit from the severance package.

[278]     In my
view, the preponderance of the evidence supports a finding that there was a
real and substantial possibility that absent the 2004 Accident,
Mr. Midgley likely would have continued to work at Weyerhaeuser. I find,
however, that there is a real and substantial possibility that Mr. Midgley’s
employment with Weyerhaeuser would have been terminated in December 2007 and a
greater possibility of such a termination occurring by March 2009. This is a significant
negative contingency in assessing Mr. Midgley’s claim for his future loss
of earning capacity, as well as his claim for loss of earning capacity in the
post-Accident, pre-trial period.

Alternate Replacement
Employment in the Pre-Trial Period

[279]     The recent
jurisprudence from the Court of Appeal in Bradley has clarified that a
claim that is often described as “past loss of income” is actually a claim for loss
of earning capacity.

[280]     In Parypa
v. Wickware, 1999 BCCA 88 at para. 67, the court stated that there is
a duty on a plaintiff to mitigate his damages by seeking, if at all possible, a
line of work that can be pursued in spite of his injuries: See also Graham v.
Rogers, 2001 BCCA 432 (leave to appeal to S.C.C. refused, [2001] S.C.C.A.
No. 467).

[281]     In Mazzuca
v. Alexakis, [1994] B.C.J. No. 2128 (S.C.) (appeal dismissed) in assessing
future income loss, the trial judge cited Southin J.A.’s comments in Palmer
v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.), and observed that a
plaintiff must prove that the earnings from the vocation which he has lost the capacity
to perform cannot be replaced by a substituted vocation.

[282]     After the
2004 Accident, Mr. Midgley was obliged to take reasonable steps to find
employment at a level he reasonably could have been expected to achieve in
light of his injuries. Doctrinally, whether this postulation is articulated and
analyzed as mitigation of losses or an assessment of Mr. Midgley’s residual
earning capacity, in this case, the result is the same.

[283]     In
assessing Mr. Midgley’s pre-trial loss of his earning capacity, I must consider:

(a)      what
Mr. Midgley would have earned in the pre-trial period had he not been
injured in the Accident,

(b)      what,
in light of his injuries, Mr. Midgley could have reasonably earned in the
pre-trial period; and

(c)      what in fact
Mr. Midgley earned in this period.

(a)      Earnings in pre-trial
period with no injury

[284]     This
assessment must begin with a consideration of what Mr. Midgley would have
earned during the loss period, had he not been injured by the defendants’
negligent conduct.

[285]     In the
absence of the 2004 Accident Mr. Midgley likely would have continued to
work at Weyerhaeuser as a mill worker, and would have earned the 2005 base
salary of $60,060.00 plus 15 percent for a “shift premium”, which equates to
$69,069.00 per year. He would also have been entitled to benefits. The evidence
shows that in 2005, his benefits were approximately $2,800.

[286]     I note
parenthetically that there was no evidence to show if the 2004 Accident had not
occurred Mr. Midgley would have suffered any income loss as a result of the
2006 Accident.

[287]     Given my
findings that there was a real and substantial possibility that
Mr. Midgley would have been laid-off from Weyerhaeuser in December 2007,
and a more substantial possibility he would have been laid-off by March 2009, I
must consider, in the absence of the 2004 Accident, what work Mr. Midgley
would have performed if he was no longer working at Weyerhaeuser.

[288]     The
evidence does support a finding that Mr. Midgley has some history of
failed entrepreneurial endeavours. However, I reject the defence submission
that Mr. Midgley was not a hard-working individual. The fact that two
apparently successful businessmen in the Chilliwack community offered him
employment and loaned him monies for the Gym stands a testament to his work
ethic. The testimony of the personnel from Weyerhaeuser clearly establishes
that he was a well-regarded and hard-working team member. Mr. Paul
confirmed that his work-performance reviews were stellar.

[289]    
Mr. Midgley’s employment, for the most part, except for his failed
entrepreneurial pursuits and his work at the oil companies in Alberta, has been
largely physical in nature, including employment as a delivery man, sprinkler
installer, and security doorman. There is a real and substantial possibility
that he would have continued to do physical work if he had been laid off from
Weyerhaeuser. However, the totality of the evidence supports a finding that
Weyerhaeuser paid high wages for a labour job. The evidence as a whole supports
a reasonable inference that absent the 2004 Accident, there was a real and
substantial possibility that Mr. Midgley would have found an equivalent
vocation, but it was unlikely that Mr. Midgley would have earned as much
as he was earning at Weyerhaeuser.

[290]     The
evidence does not support a finding that absent the 2004 Accident,
Mr. Midgley would have opened the Gym.

[291]     On my best
assessment, there is a real and substantial possibility that absent the 2004
Accident, Mr. Midgley, if he had ceased employment with Weyerhaeuser by
2009, would have earned thereafter in the range of $50,000-$55,000 per annum.

(b)      In light of his
injuries, what could Mr. Midgley have reasonably earned in the pre-trial
period?

[292]     Given Mr.
Midgley’s age, work history and injuries, there was a real and substantial
possibility that, had he not pursued employment opportunities through his
friends, Mr. Midgley would have experienced difficulties re-entering the
labour force after the termination of his employment with Weyerhaeuser in
October 2005. The evidence shows that in 2006, he was suffering from
significant depressive symptoms. Mr. Midgley’s reasonable prospects for
employment must be viewed through the lens of his physical limitations,
psychological issues, chronic pain and episodic flare-ups of his symptoms. He
clearly required some flexibility in his occupational endeavours.

[293]     I find
nonetheless that the preponderance of the evidence shows that Mr. Midgley
had some residual earning capacity from 2006 to the date of trial.

[294]     Neither
party led any expert evidence to establish what particular occupations Mr. Midgley,
given the circumstances I have summarized above, could have otherwise
reasonably pursued in the post-accident pre-trial period. I have given limited
weight to the 2005 census data provided by the defence. The listing of NOC
occupations does not provide any information as to what training or experience
would be required for those positions, nor the potential for flexibility
associated with each position. The wages only refer to income in 2005 for
full-time work. It is difficult to extrapolate from this information in any
meaningful way.

[295]     Mr. Midgley
testified about the possibility of selling cars and offered that, working six
days a week, six hours per day, one could earn $30,000 per year.

[296]     On my best
assessment, I conclude that there was a real and substantial possibility that Mr. Midgley,
after he left Weyerhaeuser — with his limitations and if he had not pursued
the employment he did — would have been realistically able to earn $25,000 to $35,000
annually. This reflects slightly more than the approximate income that he would
have earned from either full-time work at minimum wage in British Columbia or some
part-time work at a higher wage.

[297]     In my
assessment, I have taken into account that Mr. Midgley may have had some
difficulty in immediately finding employment after his termination from
Weyerhaeuser.

(c)      What did Mr. Midgley
earn in the post-Accident, pre-trial period?

[298]     The next
step in my assessment is to consider what Mr. Midgley did in fact earn in
the post-Accident, pre-trial period.

[299]    
Although the evidence on this point was somewhat thin, it supports a
finding that Mr. Midgley did in fact earn the following amounts in the
following years:

[300]    
Mr. Midgley testified that he earned $10,000 when he worked for
Blue Chip, a friend’s investment company. It is difficult to determine from Mr. Midgley’s
2005 income tax return whether this income was reported. The defence submits
that the $10,000 he apparently earned in 2005 must be taken into account in my
assessment. I agree.

[301]     Commencing
in January 2009, Mr. Midgley commenced the Gym business. This has
permitted him flexibility in his work hours and, it can reasonably be inferred,
the ability to delegate the heavier tasks to his staff members. The evidence
shows that while Mr. Midgley has paid his staff and equipment lease
payments, he has remained in arrears for the rent. Although he has withdrawn up
to $6,000 per year, and paid his car expenses he says that he has never earned
enough to pay himself a regular salary. As I referred to earlier in these
reasons, the monthly lease payments of $5,200 for the equipment were to be paid
off in January 2012. It can reasonably be inferred that the business has the
potential to pay rent and generate some profit, assuming that the membership
numbers are sustained and no new capital expenditures are required.

[302]     In all the
circumstances I am satisfied that it was not unreasonable for Mr. Midgley
to have pursued his own Gym business. The field of physical fitness and
training is a suitable vocational option for him. He acted reasonably in
pursuing an endeavour which could yield a potentially higher income than
alternate entry-level or part-time positions that he may have otherwise
pursued. However, by January 2012 it is reasonable to assume that he could earn
in the range of $25,000 – $35,000 either in the gym business or some other
competitive employment.

[303]     I have
also factored into my assessment what Mr. Midgley did in fact earn during this
period and what he could have reasonably earned in the period prior to opening
the Gym.

[304]     Given the
various contingencies and the substantial negative contingency that his
employment at Weyerhaeuser would have been terminated by 2009, I exercise my
discretion based on the principles articulated in Lines as follows: I
assess his loss as $12,500 in 2004; as $40,000 for 2005, as $105,000 for
2006-2008 and $115,000 from 2009 to date of trial.

[305]     In summary
on this issue, I conclude that the 2004 Accident has resulted in a total past
loss of income of $272,500 to Mr. Midgley for the period from the date of 2004
Accident to trial.

[306]     As Mr. Midgley
is only entitled to recover his net income losses, I direct counsel to carry
out the necessary calculations in order to determine the appropriate net loss. Counsel
have liberty to apply if they are unable to agree as to this amount.

Business Losses

[307]     Mr. Midgley
asserts that, in his attempts to mitigate his loss of earnings by operating the
Gym, he suffered significant financial losses.

[308]     Mr.
Midgley claims compensation of $100,000 for his losses which is comprised of the
$70,000 Mr. Yates and Mr. Miller loaned to Mr. Midgley for his
business start-up and the $30,000 in rental arrears, owing to Mr. Yates for
the last two years of operation of the Gym. The $100,000 business loss claim
does not include any claim for the $72,000 in rental arrears arising from the Gym’s
first year of operation, since Mr. Yates testified he was prepared to
waive recovery of that amount from Mr. Midgley.

[309]     For the
reasons set out below, I am not persuaded that this amount should be assessed
against the defendants.

[310]     At its
core, this claim engages an inquiry of reasonable foreseeability and remoteness
in the recovery of damages.

[311]     The Supreme
Court of Canada in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27,
clarified the principles of foreseeability in tort damages. Chief Justice
McLachlin clarified that the key to the remoteness inquiry is whether “the harm
[is] too unrelated to the wrongful conduct to hold the defendant fairly
liable”. She also affirmed at para. 12 that since the Wagon Mound
(No.1), “it is the foresight of the reasonable man which alone can
determine responsibility.” Reasonable foreseeability is determined at the time
of the tort and the question of what harm the plaintiff or a person of ordinary
fortitude would suffer, is to be determined objectively; Milliken v. Rowe,
2012 BCCA 490.

[312]    
The Court’s comments at para. 16 are instructive:

…the law of tort imposes an
obligation to compensate for any harm done on the basis of reasonable
foresight, not as insurance. The law of negligence seeks to impose a result
that is fair to both plaintiffs and defendants, and that is socially useful. In
this quest, it draws the line for compensability of damage, not at perfection,
but at reasonable foreseeability. [Emphasis in original.]

[313]    
It follows that in order to succeed in this claim , Mr. Midgley
must show that it was foreseeable that a person of ordinary fortitude would
suffer the business loss he alleges as a result of his injuries. In my view, he
has failed to do so. This possibility was not a “real risk” in the mind of a
reasonable man in the position of the defendant; Milliken at para. 10.

[314]    
In short, the loss claimed is too remote to be reasonably foreseeable
and consequently is not recoverable from the defendant. It follows that Mr. Midgley’s
claim for $100,000 business loss must fail.

[315]    
I also note that, while the business in 2009 through 2011, in its
start-up phase, was showing an operating loss, it appears that by 2012 – with
the equipment having been paid off – it had the potential to become a
profitable business.

Loss of Future Earning
Capacity

[316]     As I have
referenced earlier, Mr. Midgley submits that he is entitled to an award of
$700,000 for loss of future earning capacity. The defence forcefully submits
that Mr. Midgley has not met the burden of proof in establishing that he
has suffered a diminishment of his future earning capacity attributable to the 2004
Accident.

[317]     The
essential task of this Court is to compare the likely future of Mr. Midgley’s
working life if the 2004 Accident had not happened with Mr. Midgley’s
likely future working life after the 2004 Accident: Hunt at
para. 204.

[318]     I have
concluded earlier in these reasons that Mr. Midgley’s 2004 Accident-related
injuries have impaired his earning capacity. The limitations caused by his
injuries in the 2004 Accident have rendered him less capable overall from
earning income, have rendered him a less marketable and attractive employee,
and have taken from him the ability to take advantage of all job opportunities
that might otherwise have been open to him. The preponderance of the evidence
demonstrates that this impairment will likely harm Mr. Midgley’s earning
capacity in the future. For the reasons that follow, I have also concluded
that, on account of his 2004 Accident-related injuries and consequent
impairment of his earning capacity, there is a real and substantial possibility
that Mr. Midgley will suffer some future pecuniary loss.

[319]     Mr. Midgley
was 46-years old as of the date of trial.

[320]     Earlier in
these reasons, I have found that absent the 2004 Accident there was a real and substantial
possibility that Mr. Midgley would have been laid off from Weyerhaeuser
somewhere in the period between 2007 and 2009. Absent the 2004 Accident and if
his employment with Weyerhaeuser had been terminated by 2009, I find a real and
substantial possibility that he would have found alternate employment albeit at
a lower wage and that he would have continued to earn in that range up until
age 65.

[321]     I am satisfied
on the evidence that at his age, his future prospects for attracting and
holding employment that he can perform with his physical limitations, chronic
pain and episodic flare-ups has been diminished. There is a real and
substantial possibility that this impairment will impact his future earnings.

[322]     On my best
assessment of the evidence, there is also a real and substantial possibility
that Mr. Midgley will now retire earlier than age 65. There is a real
chance that his chronic pain will take a toll and, over time, will
detrimentally impact his ability to work, regardless of what accommodations any
future employer is prepared to make: Morlan v. Barrett, 2012 BCCA 66 at para. 41.

[323]     From 2009
up until the end of 2011, I found it reasonable to permit Mr. Midgley the
opportunity to continue to operate his business in anticipation that it would
eventually generate a better level of income for him. I recognize that it
remains uncertain whether Mr. Midgley, with the Gym equipment now having
been paid off, will be able to earn more money operating his gym or whether he
would be better served trying to secure employment in the marketplace.

[324]     Whatever
occupational endeavour he pursues, for purposes of assessing his future loss, I
find that that there is a real and substantial possibility that Mr. Midgley
is capable of earning $25,000 to $35,000 per annum.

[325]     Having
found that Mr. Midgley’s future earning capacity is diminished and that
there is a real and substantial possibility that the impairment of his capacity
will generate a pecuniary loss over time, I must now decide the companion issue
of what, in all the circumstances, he should be awarded as compensation.

[326]     Each party
provided future income loss multipliers from their respective economists which
were intended to assist the court in the evaluation of Mr. Midgley’s
future income loss. The future income loss multipliers included an adjustment
for survival and discount rates, as well as labour market contingencies for
average BC males with a high school diploma.

[327]     The
economists’ evidence is of limited assistance in this case because I accept the
defence submission that the assessment of Mr. Midgley’s impairment of
earning capacity must be done on the basis of a loss of capital asset. This
approach is appropriate given the uncertainty associated with Mr. Midgley,
in the absence of the 2004 Accident, having continued to work at Weyerhaeuser
after the significant layoffs and terminations in 2007 and 2009.

[328]    
In this case, I must forecast Mr. Midgley’s future losses. It is
well-recognized that unknown contingencies and uncertain factors make it
impossible to calculate future earning capacity with any precision. Damages
must be assessed, not calculated and must be fair to both parties: Power v.
Carswell, 2011 BCSC 1672 at para. 211. The evidence in this case
mandates that in my assessment I take into account the following contingencies
which reflect the likelihood of the future loss occurring:

             
(i)                   
Mr. Midgley, absent the 2004 Accident, may not have maintained
full-time employment with Weyerhaeuser and may not have continued to earn as
high wages as he was earning as of the date of the 2004 Accident. This is a
significant negative contingency.

            
(ii)                   
Mr. Midgley would have withdrawn from employment before age 65 or
had reduced earnings because of illness, injury or disability, unrelated to the
2004 Accident.

           
(iii)                   
In the future, Mr. Midgley may earn a higher wage from the Gym
business or competitive employment than is reflected in the range of wages I
have discussed above.

[329]    
Taking into account all of the evidence and relevant negative and
positive contingencies, I assess Mr. Midgley’s loss of future earning
capacity from the date of trial as $160,000. I am satisfied that in all the
circumstances this is a fair and reasonable award.

Pension Loss

[330]     Mr.
Midgley’s counsel submits that, but for the 2004 Accident, Mr. Midgley
stood to be able to benefit from one of “the most attractive pension benefits
protection available to workers in the forest products industry.” He asserts
that the present value of Mr. Midgley’s pension loss flowing from the 2004
Accident is $240,000. The pertinent calculations are set out in his written
submissions.

[331]     Mr.
Midgley testified that during the time he was employed by Weyerhaeuser, the
company contributed to the employee pension plan on his behalf as part of his
compensation and benefits package and that he was periodically provided with
credits to purchase or maximize his benefits under the plan. However, he could
not recall any particulars as to whether he made any such contributions.

[332]     Mr. Paul
explained that the Weyerhaeuser pension was a defined pension plan but could
provide no information on Mr. Midgley’s potential entitlement. There was
no evidence led as to when Mr. Midgley’s pension may have vested. There
was no pertinent documentation regarding the Weyerhaeuser pension plan or any
calculations from an economist advanced at trial.

[333]     Counsel
applied to re-open his case after the conclusion of closing submissions but
prior to judgment, for the purpose of deducing further evidence – namely an
economist’s report – to address Mr. Midgley’s claim for loss of pension
benefits. I concluded that he had not established the likelihood of a
miscarriage of justice if he was not permitted to open his case and I dismissed
the application.

[334]     In the
end, in light of the deficiencies in the evidence, I am unable to make any
award for loss of pension benefits.

Cost of Future Care

[335]     Mr. Midgley
seeks compensation of $29,000 for the cost of anti-depressant medication and
the cost for counselling treatment. The defence submits that the evidence does
not support any future care award because they assert Mr. Midgley likely
would not use the medication or access counselling treatment.

[336]     The purpose
of an award for future care is to compensate a plaintiff for costs which reasonably
may be expected to be incurred to preserve and promote the plaintiff’s mental
and physical health: Milina at para. 78; Gigmac v. Insurance
Corporation of British Columbia , 2012 BCCA 351 at para. 30. The items
or services claims must be medically justified and the claims must be
reasonable: Milina at p. 84. In assessing what is reasonably
necessary to promote the plaintiff’s health, the court should also consider
whether the plaintiff would likely use the items or services in the future: Penner
v. Insurance Corporation of British Columbia, 2011 BCCA 135 at paras. 12-14;
Drodge at para. 194.

[337]     The
quantification of damages for the cost of future care is an assessment and not
a precise accounting exercise; adjustments must be made for “the contingency
that the future may differ from what the evidence at trial indicates”: Krangle
(Guardian ad litem of) v. Brisco, 2002 SCC 9 at para. 21;
Prempeh v. Boisvert, 2012 BCSC 304 at para. 108.

[338]     Mr. Midgley
submits that $20,000 is appropriate compensation for the future cost of
medication. He relies on Dr. O’Breasail’s recommendations that he, in the
long term, would benefit from daily anti-depressant medication.
Dr. Miller, the psychiatrist for the defence, disagrees with
Dr. O’Breasail’s recommendation regarding anti-depressant medications.
Dr. O’Breasail estimated the monthly cost for this medication to be in the
range of $60 to $80. On counsel’s calculation, the present value of the medication
costs to be incurred over 30 years (to age 76) is $20,000.

[339]     Insofar as
the medication, Mr. Midgley has expressed some reservation with respect to
using prescription medication. Whether a plaintiff would accept a recommendation
is a relevant consideration; O’Connell v. Yung, 2012 BCCA 57 at
para. 60. On the evidence, I am not persuaded that Mr. Midgley would
use anti-depressant medication and I decline to make any award for this item.

[340]     Dr. O’Breasail
also recommended counselling or psychotherapy to assist Mr. Midgley in
coping with his chronic pain. He suggested weekly sessions for three to six
months, decreasing in frequency to once every two to four weeks over the
following 18 months. Dr. O’Connor also recommended psychological counselling
for Mr. Midgley, as well as Dr. Miller, who was of the view that Mr. Midgley
would benefit from cognitive behavioural treatment.

[341]     Mr. Midgley
has undergone counselling when it was available to him through his employment
at Weyerhaeuser. I am satisfied that counselling is reasonably necessary on the
medical evidence and that with the elimination of any obvious financial
impediment Mr. Midgley would access such treatment.

[342]     In the
result, and on the totality of the evidence and taking into account the
relevant contingencies, I assess an award for the cost of counselling in the
amount of $7,500.

Loss of Housekeeping
Capacity

[343]     I next
turn to address whether Mr. Midgley is entitled to compensation for
impaired housekeeping capacity. The defence submits the evidence does not support
such a claim.

[344]     In Dykeman
v. Porohowski, 2010 BCCA 36 at para. 28, Newbury J.A. summarized
the governing principles with respect to awarding damages for the loss or
impairment of housekeeping capacity. She affirmed that damages for the loss of
housekeeping capacity may be awarded even though the plaintiff has not incurred
any expense, because housekeeping services were gratuitously replaced by a
family member. Moreover, since the award recognizes the impairment of
housekeeping capacity, whether a plaintiff is likely to hire such assistance in
the future, does not inform the analysis; X. v. Y. at para. 256; O’Connell
at para. 67. Recovery may be allowed for both the future loss of the
ability to perform household tasks as well as for the loss of such abilities
prior to trial. The amount of compensation awarded must be commensurate with
the plaintiff’s loss: Dykeman at para. 29; X. v. Y. at para. 246.

[345]    
In assessing damages under this head, the authorities mandate that the court
must carefully scrutinize the gratuitous services provided by the family
member. A relatively minor adjustment of duties within a family will not
justify a discrete assessment of damages: Campbell v. Banman, 2009 BCCA
484 at para. 19. In Dykeman at para. 29, Newbury J.A.
cautioned that:

Instead, claims for gratuitous
services must be carefully scrutinized, both with respect to the nature of the services
– were they simply part of the usual ‘give and take’ between family members, or
did they go ‘above and beyond’ that level? – and with respect to causation –
were the services necessitated by the plaintiff’s injuries or would they have
been provided in any event?  [Emphasis in original]

[346]     Mr. Midgley’s
counsel asserts that the expert evidence identifies permanent limitations in Mr. Midgley’s
ability to carry out the heavier aspects of his household duties. He seeks
$30,000 compensation calculated at approximately $1,500 per year to age 75,
when they say some of the needs may have arisen even in the absence of the 2004
Accident.

[347]     Dr. Hamm
was of the view that Mr. Midgley will require some occasional assistance
with respect to heavier and/or seasonal household and yard work. Ms. Craig,
the occupational therapist who conducted a functional capacity evaluation of Mr. Midgley
on June 28, 2010, suggested that he may require help for some maintenance and
heavier chores, as long as his symptoms persist.

[348]     I find
that Mr. Midgley has resumed mowing the lawn and performing lighter
household maintenance. He and his wife provided only the most general evidence
as to what household service she now performs that would have been performed by
Mr. Midgley prior to the 2004 Accident. Mr. Midgley referred to his
inability to shovel the driveway. Ms. Midgley testified that she now takes
out the garbage and performs the lifting and yard work including the weeding.
There was no cogent evidence of them hiring outside help to perform these services.

[349]     While I
accept that, because of Mr. Midgley’s physical limitations there has been
some adjustment of household duties between he and his wife since the 2004
Accident, I am not persuaded on the evidence that it justifies a discrete award
of damages. Moreover, there was no evidence tendered as to the market value of the
provision of those household services that Mr. Midgley can no longer
perform.

[350]     In all the
circumstances, I have concluded that Mr. Midgley’s loss is properly
considered as a factor in the assessment of his non-pecuniary damages; this is
reflected in the non-pecuniary damages award I have assessed.

[351]     In the
result, I make no award for loss of housekeeping capacity.

Management Fee

[352]     The
parties have agreed that determination of whether the management fee is
appropriate and a quantification of the management fee will be the subject of
further submissions once these reasons have been released.

Special Damages

[353]     Mr. Midgley
seeks special damages totalling $5,861.07 plus $4,042.50 for services provided
by Rosaroma Therapy.

[354]     It is
well-established that an injured person is entitled to recover the reasonable
out-of-pocket expenses they incurred as a result of an accident. This is
grounded in the fundamental governing principle that an injured person is to be
restored to the position he or she would have been in had the accident not
occurred: Milina at 78; X. v. Y. at para. 281.

[355]     I accept
the defendants’ submission that the $4,042.50 for therapy treatments claimed by
Mr. Midgley for the services provided by Rosaroma Therapy for the period
October 12, 2005, to November 21, 2008, are not properly recoverable, as there
is no indication such treatments were provided by a registered massage
therapist or were medically approved treatments.

[356]     Mr. Midgley
has also submitted prescriptions in the amount of $2,184.34 and $556.39 for
Pregnenolone, Daga, and 7-Keto-DHEA and unspecified compound prescription from Dr. James
Copp. It is not established on the evidence that this medication was reasonably
necessary to treat the injuries Mr. Midgley sustained in the 2004 Accident.

[357]     Mr.
Midgley is awarded the balance of the items claimed. In the result, I find that
Mr. Midgley is entitled to re-imbursement for special damages of
$3,120.38.

CONCLUSION

[358]    
Mr. Midgley’s damages are assessed at $553,120.38 consisting of the
following:

[359]    
I find that the injuries Mr. Midgley sustained in the 2006 Accident
are indivisible. I have assessed damages globally. Any damages arising from the
2006 Accident should be deducted from my award.

COSTS

[360]     Mr. Midgley
is entitled to his costs at Scale B unless there are any pertinent
circumstances that should be brought to the court’s attention. If a hearing is
required, I request that counsel make attempts to schedule a hearing date
within six months from the date of the release of these reasons.

“Dardi J.”