IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130508

Docket: M137999

Registry:
New Westminster

Between:

Grant Brian
Tomashewsky

Plaintiff

And

Richard Linnebank
and Gerry Linnebank

Defendants

Before:
The Honourable Mr. Justice Truscott

Reasons for Judgment

[1]            
Mr. Tomashewsky was involved in a motor vehicle accident on October
22, 2009 in the City of New Westminster. At the time he was operating his motor
vehicle on 12^th Avenue proceeding to the intersection of Columbia
Street where he came to a stop at a red light. While stopped there he was
rear-ended by a Cadillac Escalade SUV driven by the defendant Richard
Linnebank.

[2]            
Liability for the accident and any resulting injury to Mr. Tomashewsky
has been admitted by the defendants. The issue at trial was the quantum of Mr. Tomashewsky’s
loss.

[3]            
Mr. Tomashewsky says he felt the impact to the rear of his vehicle
and it felt like the rear of his vehicle was lifted up. He says he turned to
his right to look over his shoulder behind him and he was hit again three or
four seconds later, causing his vehicle to bump the back end of another vehicle
in front of his.

[4]            
He identifies a dent in his rear bumper shown in a photograph of his
vehicle after the accident as being caused by the impact of the defendants’
vehicle.

[5]            
He also identifies two creases to the left rear of his vehicle shown in
the photograph and two more creases to the right rear as also being caused by
the impact, although it is difficult to tell from the glare on the photograph
whether these are additional damage points on the rear of the vehicle.

[6]            
The defendant driver Richard Linnebank says he brought his vehicle to a
stop 10 or 15 feet behind the plaintiff’s vehicle at the intersection of 12^th
Avenue and Columbia Street but his foot then slipped off the brake pedal and
his vehicle rolled forward, bumping the rear of the plaintiff’s vehicle.

[7]            
He says the only damage to his own vehicle was to the cover of his front
licence plate.

[8]            
I accept the evidence of the plaintiff over the evidence of Mr. Linnebank
as to the severity of the first impact to the rear of the plaintiff’s vehicle.

[9]            
I do not know whether it was so severe as to lift up the rear of Mr. Tomashewsky’s
vehicle but I do accept his evidence that it was significant enough to put a
dent in his back bumper shown in the photograph he identified at trial.

[10]        
In my opinion this is more damage to the plaintiff’s vehicle than I
would have expected with a mere bump from the defendants’ vehicle moving forward.
I also question whether this impact occurred when the defendant’s foot slipped
off the brake pedal and his vehicle merely rolled forward. If his foot slipped
off the brake pedal I would think he would have been able to react in time to
have avoided any impact with the plaintiff’s vehicle.

[11]        
Accordingly I reject the impact occurred in the manner explained by the
defendant and accept that the impact was significant enough as described by the
plaintiff.

[12]        
Whether the defendants’ vehicle struck the plaintiff’s vehicle once only
or twice I conclude Mr. Tomashewsky suffered neck and low back injuries
from the accident.

[13]        
Initially Mr. Tomashewsky says he decided to wait a few days to see
if his pain subsided but when it didn’t he attended on Dr. Klein, a family
physician, on October 24, 2009.

[14]        
Dr. Klein gave evidence at trial on behalf of the plaintiff.

[15]        
In his first report of December 28, 2011, he says the plaintiff
initially complained on his first visit of neck and right shoulder blade pain
and Dr. Klein found slight right-sided lumbar muscle tenderness. The
plaintiff did not complain at that time of any low back pain.

[16]        
Dr. Klein continued to treat the plaintiff thereafter and on
November 21, 2009 the plaintiff returned complaining that his back pain had
increased over the previous three days.

[17]        
Dr. Klein says that the back pain was stated to be in both the
lower and upper areas of the plaintiff’s back and in his lower back it was
stated to be on both sides of his spine.

[18]        
Dr. Klein does not say in his report nor at trial when he learned
the back pain had started, only saying that on November 21, 2009 the plaintiff
came in complaining that his back pain had increased over the previous three
days.

[19]        
On that day Dr. Klein recommended physiotherapy and over a period
of time November 24, 2009 to November 7, 2011 Mr. Tomashewsky took over 50
sessions of physiotherapy.

[20]        
On December 17, 2009 Dr. Klein saw the plaintiff again and at that
time the plaintiff complained that his back hurt every so often and he was
experiencing more stiffness and back pain after physiotherapy. He also
complained that he had noted his right jaw would pop and crack when eating
candies although he had not noticed this discomfort when eating other foods.

[21]        
On January 8, 2010 Mr. Tomashewsky came back complaining of
continued right-side jaw pain with the complaint of pain and cracking of the
right temporomandibular joint. A TMJ x-ray was ordered.

[22]        
Thereafter Dr. Klein continued to see the plaintiff and the
plaintiff continued to complain of back, neck and jaw pain. The plaintiff had
decreased lumbar flexion but without any distinction made between the right and
left side.

[23]        
An x-ray of the TMJ was done January 8, 2010 indicating no significant
abnormality.

[24]        
On September 9, 2010 Mr. Tomashewsky told Dr. Klein that his back
hurt when he was required to do a lot of lifting and bending but on
presentation he said at the moment he was okay.

[25]        
Mr. Tomashewsky’s complaints to Dr. Klein of back pain
continued with any lifting and bending or sitting for long periods of time.

[26]        
A lumbar spine x-ray of November 29, 2011 indicated severe L5-S1
degenerative disc disease which Dr. Klein concluded was not caused by the
motor vehicle accident.

[27]        
A subsequent lumbar spine MRI on May 17, 2012 did not indicate Mr. Tomashewsky
required any surgery for this degenerative disc disease.

[28]        
In a second report of January 5, 2013 Dr. Klein says that Mr. Tomashewsky
continues to complain of low back pain which is not constant but flares up
frequently and Mr. Tomashewsky had reported the pain being significantly
worse after driving for long periods of time.

[29]        
In both reports Dr. Klein concludes that Mr. Tomashewsky’s
prognosis is for full recovery. He does recommend that Mr. Tomashewsky
avoid any heavy lifting or repeated bending and continue to strengthen his core
musculature and lose weight.

[30]        
He also says Mr. Tomashewsky continues to experience back and neck
pain for which no surgical treatment is required.

[31]        
Mr. Tomashewsky is 48 years of age presently and not an elderly person.
The evidence is that he had no physical disability prior to this motor vehicle
accident.

[32]        
I question what Dr. Klein considers to be full recovery when he
says Mr. Tomashewsky is still experiencing back and neck pain over three
years later and when Dr. Klein feels it necessary to caution Mr. Tomashewsky
about heavy lifting and excessive bending.

[33]        
At trial Dr. Klein acknowledges that a lot of Mr. Tomashewsky’s
complaints are subjective in nature and not objective, but he says he believes Mr. Tomashewsky.
He says his overall impression is that Mr. Tomashewsky’s back is always in
pain but the pain fluctuates, presumably depending upon his activities.

[34]        
Mr. Tomashewsky is a supervisor with a plumbing wholesaler in the
lower mainland. He earns approximately $40,500 per year and additional bonuses
depending on the company’s performance.

[35]        
He says he runs a union shop for production of plumbing parts and in his
job he basically supervises the employees who actually do the work but he also
helps out with labour duties from time to time.

[36]        
He has worked there full-time for the past seven years but on and off
for ten years or longer.

[37]        
He says he had no health issues that affected his employment duties or
his lifestyle prior to this accident and says he could run and jump and felt
like a young man.

[38]        
This accident occurred at a very unfortunate time for Mr. Tomashewsky
because he was about to get married in the Ukraine on November 5, 2009 to a
woman that he had met there previously.

[39]        
He says the plane trip to the Ukraine was very painful for him as his
injuries made him feel like an old man and during the trip he had to get up and
walk around to relieve the pain.

[40]        
When he arrived at the Ukraine and was met by his fiancée they had to
drive another five hours or so to another city and during the vehicle trip they
had to stop every two hours so he could get out and relieve his pain. He says
the pain was so severe it made him cry.

[41]        
The evidence of his wife is that when she met him at the airport upon
his arrival he seemed to be a very different man than when she last had seen
him. He was upset, bent over and talked of constant back pain.

[42]        
She confirms his evidence that they had to stop many times on the drive
home so he could relieve his pain and she also confirms that he cried.

[43]        
The wedding took place on November 5, 2009. His wife says their
honeymoon plans had to be abandoned and he couldn’t even lift her up to carry
her away as part of her custom.

[44]        
When she joined him in Canada after the marriage in May 2010 she says he
looked the same, he was bent forward and couldn’t even pick up her suitcases
for her.

[45]        
They began living together and at first she says he tried to help with
the house duties but it appeared hard for him to wash dishes or vacuum so she
banned him from housework because she couldn’t stand watching him.

[46]        
Mr. Tomashewsky confirms the only housework he does presently is to
clean the bathtub after he uses it.

[47]        
After the accident he returned to his job as a supervisor at the
plumbing wholesaler without missing any time and he has continued at that work
full-time since then up to the present time, other than for physiotherapy
sessions he attended.

[48]        
His evidence is that he has always been a very careful person to watch
his health but after the accident he has had to be even more careful to watch
his movements so he does not aggravate his back injury.

[49]        
He denies ever helping a friend move and injuring his back, as suggested
to him at trial.

[50]        
His friend Mr. Ryll confirms that prior to the accident Mr. Tomashewsky
was a friendly, healthy, happy-go-lucky person but after the accident became a
bit depressed and indicated he couldn’t do many things that he had done before.

[51]        
Mr. Ryll describes Mr. Tomashewsky as a stoic person who
doesn’t like to complain.

[52]        
Mr. Tomashewsky’s evidence is that the physiotherapy sessions
improved his back and neck only a little bit but no more.

[53]        
He says he can no longer run anymore and has to watch every move he
makes including going up and down stairs, lifting anything, or any movement
that may jolt his back. He says he performs all his functions slowly.

[54]        
For the first two years after the accident he says his back remained
very painful all of the time but after that the back eased off unless he
aggravated it by lifting or bending suddenly.

[55]        
His one activity that he continues to engage in is a lot of walking
because that relieves his back pain. He says he likes to go to the beach with
his wife to sit and enjoy the boats going by or to take drives to Whistler or
Kelowna, for instance.

[56]        
He says his neck recovered better than his back. Initially his neck was
painful when sitting at a computer or to look up in the warehouse for plumbing
inventory but he says the neck has been really good since about
one-and-one-half years after the accident and now he considers any neck pain he
has just part of life.

[57]        
Following two years after the accident he says his back pain became
intermittent with good and bad days although when he walks he says he feels
free of back pain at least momentarily.

[58]        
He says his back has gotten better over time but he also says that he
knows now how to manage the pain better. He describes his low back pain presently
as mild but says his back pain doesn’t help his love-making with his wife.

[59]        
He says his social life has not really been changed by his injuries. He
describes himself as a low-key person, a homebody, although he says he loves to
travel.

[60]        
His wife says that she loves her husband and would do anything for him.

[61]        
Dr. Helper, a physical medicine and rehabilitation specialist, also
gave evidence for the plaintiff at trial. He was retained by plaintiff’s
counsel to give an opinion on the plaintiff’s back complaints.

[62]        
He saw the plaintiff for two or three hours on January 24, 2013 and
prepared a report dated January 31, 2013 which was put into evidence by the
plaintiff.

[63]        
He concludes that Mr. Tomashewsky’s left-sided low back pain is
most in keeping with a combination of mechanical back pain and soft tissue
mediated pain.

[64]        
He says Mr. Tomashewsky did not present to him with any right-sided
low back pain.

[65]        
He describes mechanical pain as pain related to the discs or joints of
the spine.

[66]        
He concludes as does Dr. Klein that Mr. Tomashewsky’s pain
complaints are not related to his disc degeneration at L5-S1 of his spine.

[67]        
He concludes that Mr. Tomashewsky’s primary pain is left-sided back
pain at approximately the thoracolumbar junction.

[68]        
An MRI of the plaintiff’s thoracic spine dated January 28, 2013
demonstrated mild to moderate degenerative disc changes at T9-10. Dr. Helper
believes Mr. Tomashewsky is likely experiencing symptoms of mechanical
back pain from T9‑10 or a lower adjacent segment at the next level or two
down. This combined with soft tissue pain from the same region continues to
form his current clinical presentation.

[69]        
He outlines a procedure of investigation to determine with medical
certainty whether it is a single disc or a single joint that is the primary
pain generator for Mr. Tomashewsky’s low back pain complaints.

[70]        
He explains the investigation depends on Mr. Tomashewsky’s
understanding of the risk/benefit profile of the diagnostic tests offered and
his understanding of the risk/benefit profile of the therapeutic measures that
may be offered as a result of the testing.

[71]        
This testing would include a block of the facet joints through
anaesthetic injections into the joints. If that improved Mr. Tomashewsky’s
pain complaints Dr. Helper believes it would indicate the joints are the
source of Mr. Tomashewsky’s complaints.

[72]        
If that is the result Dr. Helper says the next procedure would be
to burn a portion of the sensory nerve fibres carrying pain signals from the
involved joint. He says the success rate for this is about 60% with little or
no pain one year after operation.

[73]        
He also says that greater than 50% of patients will experience a return
of pain sometime thereafter and if they go through a repeat procedure the
success rate is about 90%.

[74]        
If the testing of the joints indicates that the joints are not the
source of the pain complaints, then Dr. Helper says the potential
diagnosis of back pain from the T9-10 discs would be strengthened by deduction.

[75]        
To conclusively determine whether a disc is causing the pain problem, he
says a further procedure would have to be undertaken with a needle put in the
suspect disc and adjacent discs and if Mr. Tomashewsky’s pain complaints are
produced at the suspect disc but not at the adjacent discs then the diagnosis
of low back pain from the suspect disc would be confirmed with medical
certainty.

[76]        
Dr. Helper also says however that treatment for discogenic low back
pain is controversial, that none of the treatment options available in North
America and Europe have been proven as the standard of care and the success
rate of needle-based treatment procedure is 40% or less.

[77]        
He goes on to say that if there is a negative response to this disc procedure
as well as the joint procedure then the joints and discs can be eliminated as
the sources for pain and the diagnosis at that point would be of soft tissue
pain and a prognosis for conservative treatments such as physiotherapy.

[78]        
While Dr. Helper emphasizes that these procedures will produce
medical certainty, presently his impression which he says is his opinion is that
Mr. Tomashewsky does have an underlying mechanical pain generator at or above
the thoracolumbar junction of T9-10 combined with soft tissue pain.

[79]        
He does not consider that the existence of degenerative disc changes at
T9-10 shown on the MRI of January 28, 2013 tells the whole story.

[80]        
He says it is quite common to have thoracic degenerative disc changes in
the asymptomatic population.

[81]        
While he allows that over time it is possible that without the accident Mr. Tomashewsky
could have gone on to pain in this area anyway, he does not consider it is
common and he would not have expected it for Mr. Tomashewsky.

[82]        
He considers the most likely scenario to be that Mr. Tomashewsky
had pre-existing thoracolumbar disc changes at the T9-10 level that were
asymptomatic prior to the motor vehicle accident but his involvement in the
accident likely aggravated or worsened the pre-existing aging spine segments
that likely converted Mr. Tomashewsky from an asymptomatic state to a
symptomatic state.

[83]        
He considers Mr. Tomashewsky’s prognosis at over three years
post-accident to be guarded. It is his opinion that when patients with back
pain demonstrate ongoing pain symptoms without any significant turn towards
improvement or resolution, their prognosis deteriorates.

[84]        
He does acknowledge however that some patients can see spontaneous
recovery for up to five years following an accident.

[85]        
Accepting these two generalized statements he concludes Mr. Tomashewsky
has been experiencing symptoms of pain since the accident and overall the
duration of chronic pain negatively impacts his prognosis.

[86]        
Dr. Helper does not place any significance on the force or momentum
of the impact in the accident in terms of whether a person would likely have
the onset of back pain. He does agree with the general proposition that the
bigger the impact the more likelihood there would be of experiencing a back
injury but in his opinion the momentum may or may not be a factor in the onset
of back pain.

[87]        
In addition he did not consider the extent of damage to the vehicle to
be of any significance to his opinion and while he also agrees with the general
proposition that back pain is more likely to occur from two impacts than from
one impact, he says the second impact may only be a minor factor.

[88]        
His attention was brought to the fact that Mr. Tomashewsky
complained to Dr. Klein on his first visit on October 24, 2009 of neck and
right shoulder blade pain and right-sided lumbar muscle weakness, and at
physiotherapy sessions he had complaints of right-sided low back pain.

[89]        
Dr. Helper also acknowledges that Mr. Tomashewsky told him he
couldn’t recall whether he had symptoms of low back pain immediately following
the impact or in the day following. Mr. Tomashewsky had told him he
recalled there being some delay of days or weeks.

[90]        
Dr. Helper says Mr. Tomashewsky did not present to him with
any right-sided low back pain.

[91]        
He does acknowledge that with initial right-sided complaints, together
with a report that his back pain was delayed days or weeks, and on the
assumption that he helped a friend move, that could be another cause of his
injury from the motor vehicle accident.

[92]        
He disagrees that there is any significance to Mr. Tomashewsky’s
pain that he did not attend on Dr. Klein between May 28, 2010 and
September 3, 2010. He says that does not necessarily mean that Mr. Tomashewsky
had no pain complaints in this time as it could be that he saw no point in
seeing Dr. Klein during that period of time just to complain again about
his pain.

[93]        
Mr. Tomashewsky demonstrated severe guarding behaviour to Dr. Helper
on his examination. Dr. Helper considers it excessive relative to the average
person presenting in his office for assessment and treatment.

[94]        
His impression is that Mr. Tomashewsky’s pain experience is
negatively impacted by his apprehension for causing aggravation of his daily
back pain and it is his opinion that Mr. Tomashewsky’s fear avoidance
behaviour is resulting in greater inability and a worsened pain experience
relative to the average person with similar mechanical/ soft tissue pain
complaints.

[95]        
However he disagrees that Mr. Tomashewsky is intentionally
embellishing or exaggerating his pain. He says that is possible but is not his
impression.

[96]        
He expects that over time Mr. Tomashewsky will experience a further
small degree of natural improvement in his back pain experience, but with a low
probability of demonstrating any marked partial improvement (less than 30% of
80% improvement) and a very low probability of any spontaneous complete
resolution of his back complaints (less than 10%).

[97]        
He believes he spoke to Mr. Tomashewsky about the pros and cons of
the investigative procedures that he outlines but he says that Mr. Tomashewsky
is not his patient so he doesn’t know how much detail he went into with him.

[98]        
He considers it likely that he provided full counselling if not near
full counselling although his report only says that he briefly counselled Mr. Tomashewsky
on the risks and benefits.

[99]        
He says Mr. Tomashewsky expressed interest in the treatment
although he can’t be certain about this.

[100]     His
attention is brought to the opinions of Dr. Klein that his prognosis for Mr. Tomashewsky
is for full recovery. Dr. Helper says that with the diagnosis of
mechanical back pain Mr. Tomashewsky is less likely to recover and
three-and-one-half years later it is a problem with continued pain.

[101]     He agrees
that if Dr. Klein were basing his prognosis on any trend then he would
agree, but if there is no diagnosis then no prognosis can be given.

[102]     He agrees
no one knows for sure what is causing Mr. Tomashewsky’s back pain and he
allows that muscle pain could be a possibility.

[103]     He also
agrees that if Mr. Tomashewsky has not done any core training as Dr. Klein
recommended in the last one-and-one-half years it is worth trying although he
points out that Mr. Tomashewsky did take a number of physiotherapy
sessions.

[104]     He says
there is no medical emergency to have his investigative procedures done and Mr. Tomashewsky
could work out conservatively while he waits for an opening for these
procedures in six months to one year.

[105]     The costs
of these investigations are apparently covered by the BC public medical
services plan.

[106]     He says if
Mr. Tomashewsky wants to try more physiotherapy he would not object to
that but he says the odds are against getting better results after a full
session of therapy when the pain is still being experienced three-and-one-half
years later and he would not recommend it.

[107]     He is of
the opinion that considering Mr. Tomashewsky is participating in his
previous vocation at an acceptable level of compliance, the probability of him
maintaining a reasonable quality of life moving forward is improved and
hopefully through time and reassurance the psychological component of his
current pain can be lessened which would not resolve his thoracolumbar pain
condition but would lessen the severity of his inhibition and guarding
behaviour with typical provocative activities.

The Plaintiff’s Submissions

[108]     The
plaintiff seeks an award of between $80,000 and $100,000 for non-pecuniary
damages, relying heavily on the opinions of Dr. Helper.

[109]     For loss
of his future income-earning capacity he seeks an award of $75,000, relying on
the factors set out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353,
where it was said that a claimant’s loss of future earning capacity as a
capital asset should take into consideration the following:

(a)      whether
the plaintiff has been rendered less capable overall from earning income from
all types of employment;

(b)      whether
the plaintiff is less marketable or attractive as an employee to potential
employers;

(c)      whether
the plaintiff has lost the ability to take advantage of all job opportunities
which might otherwise have been open to him, had he not been injured; and

(d)      whether
the plaintiff is less valuable to himself as a person capable of earning income
in a competitive labour environment.

[110]     The plaintiff
submits that there should be no reduction in his damage award for any failure
to mitigate by not participating in a physical exercise program as he has
followed the recommendations of his medical providers, walks a lot, and
exercise with weights and a balance ball.

The Defendants’ Submissions

[111]     The
defendants submit the plaintiff is an unreliable witness because of a number of
alleged inconsistencies in his evidence.

[112]     It is
submitted that given the apparent delay in reporting his jaw complaints until
December 17, 2009 to Dr. Klein, there can be no causal connection proven
to the motor vehicle accident.

[113]     The
defendants submit the award for non-pecuniary damages should be in the order of
$16,000-$19,000 and Dr. Klein’s prognosis of full recovery should be accepted
by the Court.

[114]     It is
submitted the plaintiff substantially recovered within two years and any
continuing symptoms of low back pain are intermittent, infrequent and minor in
nature.

[115]     The
defendants also submit the plaintiff has failed to mitigate his damages by
failing to attend for chiropractic treatment as Dr. Klein had recommended
and failing to increase his physical activity and core musculature as Dr. Klein
has also recommended.

[116]     The
defendants seek a reduction of 20% of the non-pecuniary award for the
plaintiff’s failure to mitigate.

[117]     As to the
claim for loss of future income-earning capacity the defendants claim the
plaintiff has failed to prove there is any real and substantial possibility of
a future event leading to an income loss as the Court of Appeal set out as the
test in Perren v. Lalari, 2010 BCCA 140.

[118]     For future
care costs it is submitted that a reasonable amount should be no more than
equal to the cost of a six-month gym membership or six months of physiotherapy
treatments in order to strengthen his core muscles and help him lose weight.

Analysis and Decision

[119]     I accept
the opinions of Dr. Helper that Mr. Tomashewsky suffers from a
combination of mechanical back pain and soft tissue mediated pain from the
motor vehicle accident.

[120]     I accept Mr. Tomashewsky’s
evidence that he continues to suffer from back pain when he puts any kind of
stress on his low back such as bending or twisting his back suddenly, getting
up from a chair, or in or out of a vehicle, where he has to use his back to
manoeuvre himself, or any other movement of his back that puts any stress on
his lower back area.

[121]     I accept
that he has managed to keep his back pain to a minimum at the present time but
only because he has learned how to survive a day without back pain.

[122]     I accept
his evidence that he has always tried to protect his body even prior to the
accident, but that since the accident he has had to increase his effort
substantially to ensure his back is protected.

[123]     I accept Mr. Ryll’s
evidence that Mr. Tomashewsky is a stoic person who is not prone to
complain.

[124]     I cannot
explain the complaints of Mr. Tomashewsky to Dr. Klein or to the
physiotherapists about right-sided back pain without some explanation from Dr. Klein
at trial. I do note that when Mr. Tomashewsky saw Dr. Natarajan on
March 11, 2010 he did complain of left muscle tenderness and thereafter there
does not appear in Dr. Klein’s report to be any distinction made between
the right and left side.

[125]     In any
event I am satisfied that the source of Mr. Tomashewsky’s back pain is the
mild to moderate disc changes that were revealed at T9-10 on the MRI of his
thoracic spine on January 28, 2013.

[126]     I accept
that Mr. Tomashewsky suffered no back pain prior to the accident and that
these disc changes were asymptomatic for him at the time of the accident.

[127]     I accept
the opinion of Dr. Helper that these disc changes were not likely to
become symptomatic in the future without the impact of the accident.

[128]    
Mr. Tomashewsky is a classic thin skull plaintiff within the
meaning of that phrase in Athey v. Leonati, [1996] 3 S.C.R. 458, where Mr. Justice
Major, giving judgment for the Court, said at p. 473:

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

[129]     I also
accept Dr. Helper’s prognosis for Mr. Tomashewsky’s back pain as
guarded at this point in time more than three years post-accident and after
more than 50 physiotherapy sessions.

[130]     I reject Dr. Klein’s
prognosis of full recovery when he acknowledges in his reports that Mr. Tomashewsky
has ongoing pain at the present time.

[131]     I also
point out that Dr. Klein’s second report is dated January 5, 2013, prior
to the MRI done on Mr. Tomashewsky’s thoracic spine on January 28, 2013,
so Dr. Klein did not have the benefit of being able to review this MRI.

[132]     I accept Dr. Helper’s
opinion that in this case the degree of impact to the plaintiff’s vehicle has
no bearing on the back injury he has suffered nor does the issue of whether
there are two impacts between the vehicles or only one impact.

[133]     I accept Mr. Tomashewsky’s
evidence that he never helped a friend move his belongings and I reject the
submission that the back injury is in any way related to any incident other
than the motor vehicle accident.

[134]     It is also
an application of the doctrine of the thin skull that the defendants have to
take Mr. Tomashewsky as he is with his tendency to be excessive at
guarding against pain. Dr. Helper is of the opinion that Mr. Tomashewsky
is not intentionally embellishing or exaggerating his pain. Although he allows
that is possible, it is not his impression and I accept his opinion.

[135]     I accept
his opinion also that while he expects Mr. Tomashewsky will experience
some small degree of natural improvement in his back pain over time, the
probability of any marked improvement is only 30% of an 80% improvement and
less than 10% of a spontaneous complete resolution.

[136]     Mr. Tomashewsky
says in his evidence that he wants to undergo the investigative procedures
outlined by Dr. Helper, but on considering Dr. Helper’s evidence of
his counselling of Mr. Tomashewsky, I am not confident that Mr. Tomashewsky
has had the full picture explained to him yet.

[137]     Dr. Helper
agrees that if Mr. Tomashewsky has not done any core training in the last
one-and-one-half years it is worth trying at this stage, even though he has
taken so many physiotherapy sessions already.

[138]     At the
same time he says that the odds are against Mr. Tomashewsky experiencing
better results in a second session of physiotherapy when he remains in pain
today three-and-one-half years later. I accept this opinion as well.

[139]     In
addition to his low back pain caused by the disc changes at T9-10, Mr. Tomashewsky
experienced neck pain from this accident which Dr. Klein says in his
report of December 28, 2011 was still present at that time, over two years
after the accident.

[140]     I will
accept Mr. Tomashewsky’s evidence however that his neck pain had cleared
up in about one-and-one-half years and he now considers it just part of life in
general, although I have to question whether this is simply another
manifestation of his stoicism.

[141]     Mr. Tomashewsky
first complained of a right TMJ injury on December 17, 2009 to Dr. Klein.
This complaint was of popping and cracking of his jaw and these complaints
continued through to May 2011 according to the reports of Dr. Klein.

[142]     Mr. Tomashewsky
says he took 26 sessions of physiotherapy for his jaw and he has recovered 95%
improvement.

[143]     Dr. Klein
expresses the opinion in his report of December 28, 2011 that as a direct
consequence of the motor vehicle accident Mr. Tomashewsky suffered right
TMJ pain.

[144]     I never
heard at trial any evidence of any impact to Mr. Tomashewsky’s jaw area in
this motor vehicle accident. I have no basis on the evidence for concluding
that it was an injury caused by the accident. In addition there is no complaint
of it to Dr. Klein in October or November 2009 after the accident.

[145]     I am
unable to conclude this injury is caused by the motor vehicle accident.

Non-pecuniary Damages

[146]     Mr. Tomashewsky’s
most serious injury is to his low back area. It has caused him pain for
three-and-one-half years now to differing degrees, starting with continuous
pain and progressing to moderate and mild pain, because he has learned to
adjust his life to avoid as much pain as possible.

[147]     I accept Dr. Helper’s
opinion that it is chronic pain now and unlikely to be relieved in the future.

[148]     Mr. Tomashewsky
will always be required to watch how he moves so as not to disrupt his back and
increase the pain.

[149]     I am not
satisfied he is going to take the investigative procedures outlined by Dr. Helper
and even if he does there is a significant risk associated with them.

[150]     This is a
very serious injury for Mr. Tomashewsky at his age and with a fairly new
wife. It has severely affected their enjoyment of life.

[151]     As stated
he also had a soft tissue injury to his neck for at least one-and-one-half
years after the accident.

[152]     I have
reviewed all the cases cited by both counsel. I find the cases of Neumann v.
Eskoy, 2010 BCSC 1275; Stanikzai v. Bola, 2012 BCSC 846; and Clark v. Kouba,
2012 BCSC 1607, to be particularly helpful.

[153]     I assess Mr. Tomashewsky’s
non-pecuniary damages in the amount of $85,000, to include any loss of
enjoyment of life he will experience if he does take the risks of the
procedures outlined by Dr. Helper.

[154]     On the
issue of mitigation I reject the submission of the defence that Mr. Tomashewsky
has failed to mitigate his injuries by failing to attend for chiropractic
treatments. Dr. Klein on his own evidence did not recommend chiropractic
treatments, it was Mr. Tomashewsky who said he wanted to take them.

[155]     I reject
that it is a failure on his part to mitigate his injuries by failing to take
these treatments. There is no medical opinion that they would have helped him
at all and with the opinion of Dr. Helper that I have accepted I have
great doubts it would have been of any benefit to Mr. Tomashewsky.

[156]     Mr. Tomashewsky
says up to one month before the trial he was doing his recommended home
exercises at which time he says he reached a plateau. In these circumstances I
decline to apply any discount for failure to mitigate by failing to do more
exercises.

Loss of Future Income-Earning Capacity

[157]     I consider
the appropriate way to measure any loss suffered by Mr. Tomashewsky is by
application of the factors set out in Brown v. Golaiy as already stated.

[158]     Mr. Tomashewsky
is continuing to work as a supervisor at his employer’s business. I have
no evidence he is having any difficulty in fulfilling his responsibilities and
no evidence of any complaint from his employer.

[159]     He is only
48 years of age presently and only has a high school education. He has a long
way to go in the workforce. He does not have yet any significant years of
service with his present employer and there still remains the risk of a
downturn in the economy that might affect his security or some other negative
impact to his security.

[160]    
Loss of future income-earning capacity is loss of a capital asset in
these circumstances. In Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44,
Madam Justice Southin said at p. 59:

Because it is impairment that is
being redressed, even a plaintiff who is apparently going to be able to earn as
much as he could have earned if not injured or who, with retraining, on the
balance of probabilities will be able to do so, is entitled to some
compensation for the impairment. He is entitled to it because for the rest of
his life some occupations will be closed to him and it is impossible to say
that over his working life the impairment will not harm his income earning
ability.

[161]     Mr. Tomashewsky
is required to prove that there is a real and substantial possibility of a
future event leading to an income loss for him.

[162]     I am
satisfied that he has suffered a permanent back injury that will cause him a
measure of pain to different degrees depending on his activities for the rest
of his life.

[163]     I am
satisfied that he has suffered a real and substantial possibility of a future
event leading to an income loss for him.

[164]     I assess
his loss of future income-earning capacity in the amount of $25,000.

[165]    
There being no future care costs proven nor any special damages proven,
judgment will be entered for $85,000 for non-pecuniary damages and $25,000 for
loss of future income-earning capacity.

“The
Honourable Mr. Justice Truscott”