IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130516

Docket: M112935

Registry:
Vancouver

Between:

Afzal Rahim

Plaintiff

And

Abdullah Al Jundi and
Margaret Al Jundi

Defendants

Before: The Honourable Madam
Justice Maisonville

Reasons for Judgment

[1]            
The plaintiff, Afzal Rahim, brings a claim for damages arising from a
motor vehicle accident which occurred on October 27, 2009.

[2]            
The plaintiff was driving a grey 4-door Honda Civic and was approaching
the Alex Fraser Bridge when he stopped due to traffic.  While stopped, he was
rear-ended by the vehicle which was being driven by the defendant, Abdullah Al Jundi,
and which was owned by Craig Dwayne Swanson.  The action has been discontinued
as against Mr. Swanson.

[3]            
As a result of the accident, the plaintiff suffered back, neck and
shoulder injuries, as well as headaches and difficulty sleeping.

I.                
The Plaintiff

[4]            
Mr. Rahim is 41-years of age.  He is 5’11”, and he has been at his
normal weight of 175 to 180 pounds for a number of years.  He is the youngest
of six children.

[5]            
The plaintiff is married to Sharda Rahim and they have two children, a
son, Akil, born February 1998 who is now 15-years of age and a girl, Liaya,
born April 2002, who is now 11-years old.  He lives in Surrey with his family
which includes his father-in-law and mother-in-law, who are 72 and 70
respectively.  In 2005, the plaintiff built the house that he and his family
live in.

[6]            
The plaintiff had sustained injuries in 1992, when he was involved in a
motor vehicle accident.  In 1998, he was involved in a workplace accident
wherein he also sustained injuries.  In 2006, he was involved in a second motor
vehicle accident, and in 2007, he was injured in a third motor vehicle
accident.  The accident of this action occurred in October 2009.

[7]            
Mr. Rahim had been employed as a structural mechanic since 1997,
first with Canadian Airlines, then with Air Canada and, finally, with Aveos Fleet
which has since gone out of business.  He was laid off in March 2012, he then
went to work for Aqua-Guard Spill Response, in North Vancouver (“Aqua-Guard”),
a company which provides oil spill response services and creates machinery to
effect oil spill cleanups.  In July 2012, after working at Aqua-Guard for three
months, he was lured away by his former supervisor, Mark Roesler, who had
worked with him when he was with Canadian Airlines/Air Canada, and who now
worked at Pacific Avionics.  Mr. Roesler recommended the plaintiff to his
employers, and the plaintiff was hired.  He has been working there since July
2012 as a customer service representative, earning $55,000 a year.  He no
longer works as a structural mechanic.

II.              
The Accident

[8]            
The plaintiff was returning home from work on the afternoon of
October 27, 2009.  It was a sunny day, and he was thinking of doing lawn
care, as well as other chores in his back yard.  Traffic was backed up going
onto the Alex Fraser Bridge, a route which would take him to his home in
Surrey, B.C.  He was in the left lane when he noticed that the car ahead of him
had stopped and he braked suddenly to avoid hitting it.  He saw the car ahead
of him strike the car immediately in front of it.  He then looked in the rear
view mirror and saw the grille of a yellow Mercedes Benz bearing down on him,
and he realized that he was going to be hit.  There was no evasive action that
he could take.  He braced himself by holding onto the steering wheel when he
was struck.  His car was forced into the car ahead by the impact of that
collision.

[9]            
After he was hit, he saw in the rear view mirror that the hood of the
Mercedes Benz had crumpled.  His own car was ultimately considered to be a
write-off.  Photos of the vehicles involved in the collision were entered into
evidence.  They depicted substantial damage to the cars, with his car deformed
and distorted in various areas.  The vehicle which had been in front of him was
also damaged.

[10]        
Liability for the accident has been admitted.

III.            
The plaintiff’s Injuries

[11]        
The plaintiff had a telephone in his vehicle, which had been thrown
across the seat.  He noticed, when he reached over for it, that his hands were
shaking.  He called 9-1-1 and reported the accident.  He saw steam coming up
from his vehicle and from the crumpled hood of the Mercedes behind him.

[12]        
Firefighters were the first responders on the scene.  They asked Mr. Rahim
if he was okay and he indicated that his neck and his arm were hurting and they
advised him to stay still.  The ambulance then came and the paramedics opened
the door.  They took his seatbelt off and, with the assistance of the
firefighters, he was put into a neck brace, wheeled into an ambulance, and
transported to Surrey Memorial Hospital, where he stayed for some time before he
was released.

[13]        
His injuries from the accident are to his right hand, right shoulder,
from the base of his skull on the right side along his neck, to his shoulder
blades where there is stiffness and pain.  His right shoulder also hurts from
his neck to his arms, and he feels tightness and pain.  Towards the midback, there
is tension and tightness.  When he is using his right arm and looking up, his
neck and shoulder hurt just below the shoulder blade, causing him difficulties,
particularly in his upper back just below the shoulder blades, where it feels
tight.  His right shoulder, when it pulls, causes him to have bad posture,
which in turn hurts his lower back.  The right side of his facial muscles also
tighten up.  People had commented to him that this eye appears smaller, likely
a consequence of his muscles tightening up.

[14]        
His sleep pattern is different than before, though he does, at night,
wear an apparatus to help him with sleep apnea.

[15]        
The night of the accident, the plaintiff stayed at home.  The next day
he felt very sore and in pain.  He called in sick to work, and obtained an
appointment to see his family physician, Dr. Luay Dindo.  He had a lot of
pain in his neck, including a swollen shoulder and a sore lower back.  He was
driven to the doctor as he could not drive.

[16]        
Since this accident, the plaintiff has sought help from a variety of
individuals.  Any treatment that may help, he testified, he has tried.  He
takes naproxen or anti-inflammatories.  He has also followed a course of
physiotherapy at Rehab Max in Surrey.

[17]        
The plaintiff stayed off work initially for three weeks after the accident
and continued to see his family doctor, Dr. Dindo, who also works as an
emergency room physician at the Surrey Memorial Hospital.  As a consequence of Dr. Dindo
increasing the amount of time he worked at Surrey Memorial Hospital, it became
increasingly difficult to him.  He started to see Dr. Philip Chemerika.

[18]        
The plaintiff had to be cleared by the occupational therapy team at Air
Canada prior to returning to work, and in late November or early December 2009,
he did return to work.  However, that return to work involved performing
restricted duties at reduced hours.  For the first two weeks of his return, he
would work four hours a day doing light duty work, then after that period he
worked for six hours for a few more weeks, then he was working an eight hour
day, but again at restricted light duties.  He continued to consult with Air
Canada occupational health during that period of time and he continued
receiving physiotherapy.

[19]        
By early February 2010, he was getting back into his work environment, which
he found helpful.  It distracted him from his physical difficulties, but he was
still having pain.  He was doing no overhead work, and he was on bench duties,
doing computer work and other paperwork, which did not require him to be overly
physically exerted as before, particularly doing work, which was physically
over his head, or work that required him to be in tight spots, which he had
done previously as a mechanic.

[20]        
From early February 2010 to the period of his layoff in April 2010, he
was still dealing with pain.  He was having flare-ups, but on paper he was
cleared to work.  He was not doing really well, however.  His crew was
sympathetic to his problem and allowed him to do research and liaising with
engineers and working on repair schemes.  He was not really pushed to his
limits.  He only did a few hours of overtime during this period.  He continued
to take anti-inflammatories, notably naproxen, at 500 mg if he had
flare-ups.

[21]        
During his physiotherapy treatments, he was taught stretches that he
could do.  He was unable, however, to carry on full work duties without pain. 
He would return home from work, take a shower, and take pills.  He tried
acupuncture from a local practitioner.

[22]        
In his yard, he did not do much work.  He had his brother-in-law cut his
lawn with the help of his 70-year old father-in-law.

[23]        
He could not play sports with his son.  If he tried to throw a ball, he
would be in pain.  He had been helping the team out before and helped coach
basketball; however he was unable to perform the same tasks that he had before,
such as raking the pitcher’s mound.

[24]        
His father had sadly passed away in January 2010, and he missed a few
days from work at that time.

[25]        
On April 20, 2010, he was laid off from Air Canada.  He contemplated
doing contract work.

[26]        
The plaintiff went to job counselling following his lay-off.  In June
2010, a friend, Lee Marshall, recommended that he start work at Aqua-Guard. 
There was no hiring in the aviation field so the plaintiff felt this would be a
good job for him in the circumstances.  He started working for Aqua-Guard in
June 2010.

[27]        
In 2010, in the fall, he was re-called to Air Canada, which had sold off
the maintenance part of its business to Aveos.  Although he performed for the
most part the same type of work, there were different pressures working for a
company in which he held a different seniority rank that had different
locations, in which he felt there was a competition between the separate
divisions of the company.

[28]        
He continued to see Dr. Dindo and Dr. Chemerika, as well as a
chiropractor, Dr. Sunny Sandhu.

[29]        
He was ultimately called back to work in November 2010.

[30]        
The physical components of his job at Aqua-Guard involved working around
a floatation device on water that had a long tow hose to collect the oil on the
water.  There were cast iron pumps that had to be put into place with different
hydraulic lines some six inches in diameter.  The job required him to do a lot
of pulling and physical positioning.  The comparison to Air Canada was that,
with aircraft, the tools were smaller and there were tight spots to crawl into,
whereas Aqua-Guard had larger tools, including a 3-inch wrench, and much bigger
and heavier equipment.  He was not, however, crawling into tight spaces.  On
one occasion, he overextended himself and put his back out.  His sciatic nerve
was inflamed, and he was pulling his back in the wrong manner.  He was
physically hurting and in a lot of pain, but he did what the job required in
order to support his family and to pay the mortgage.

[31]        
The plaintiff worked at Aqua-Guard from June to October 2010, at which
time he was happy to be called back by Air Canada.  By this time, he was
approximately one year out from the accident.

[32]        
In December 2010, his mother passed away.  He had arranged to travel to
Guyana while she was ill to try to get her back to Canada for medical
attention. Regrettably, however, she passed away one day prior to when she was
supposed to fly out with him.

[33]        
Regarding his household chores, in October 2010, he was still not able
to do very much around the house.  He used to clean the four bathrooms in the
house.  After the accident, when he returned home from work, he would have to
have a hot shower, have dinner and take his anti-inflammatories.  He also used
ointments and rubs, and either ice or heat packs on his neck.

[34]        
In February 2011, the plaintiff fractured his right hand attempting to
fix a light fixture in the master bathroom of his house.  He broke the 5^th
metacarpal bone in his right hand.  As a consequence of this injury, he was off
work for four months, from February 22, 2011.  After the third month, the
cast was removed.  This injury was unrelated to the accident.

[35]        
In June 2011, he returned to work.  He was feeling much better, although
he could not use his hand.  The occupational health department had him on light
duties for two weeks until he was completely cleared for work, and by
June 17, when he had a surprise birthday party, he was feeling very much
better and positive.

[36]        
When he started back to work full-time, rather than work in situ
on the aircraft, often on his feet and with his arms above his shoulders and staring
up, he would, in contrast, take what he could back to a bench and work on it there. 
He was not as efficient and he saw his apprentice working faster than him.  He
found it to be a very humbling experience.  He continued to seek medical
assistance through this period of time, including seeing Dr. Chemerika and
Dr. Dindo, and he tried anything else that made sense as he needed them,
including chiropractic and physiotherapy, acupuncture and acupressure.  Within
two weeks of starting back full-time, the plaintiff started having back pain.

[37]        
Meanwhile, the Air Canada maintenance division remained in a state of
change.  In July 2011, there was a corporate restructuring and Air Canada
separated their maintenance division and sold it to Aveos Performance Aéronautique
Inc. (“Aveos”).  When the choice was given to him, the plaintiff chose to go
with Aveos because he felt he did not have sufficient seniority with Air
Canada.  At Aveos, it was to be the same work and he continued to be in the
same union.

[38]        
With Aveos, however, there was not the opportunity, as there had been
with Air Canada, to work in the same way with a team who were looking out for
him and allowing him to perform less strenuous physical duties.

[39]        
The plaintiff applied for training with respect to a new computer system
with the plan that he would be one of the trainers for the new system.  He
completed his training, travelling to Montreal to do so; however, the program
ultimately was scrapped.  At this time, those involved with the Aveos company felt
its future was very uncertain and there was fear that the little work the
company did have was going to be lost.  Ultimately, on March 18, 2012,
Aveos when bankrupt.  On March 17, 2012, the plaintiff was advised that he
was laid off, and he was not to come back to work.  He was told there would be
an arrangement for the employees to come to get their tools.  The layoff came
as a shock.  It was his wife’s birthday, and he did not tell her until after
her birthday party about the layoff.

[40]        
Following the layoff, many people went to work as contractors; however,
unlike the union jobs he was used to, contractors did not always have WorkSafe
standards, depending on where they chose to work, and one could be working in
different countries with different standards.  As a contractor, the rate of pay
would have been varied.  Had he gone, for instance, to the Middle East, it was
his understanding he could have earned as much as $90,000 a year, tax free. 
However, for a number of reasons, including his concern over safety issues, as
well as potential separation from his family, he did not choose that path.

[41]        
The plaintiff was asked in detail about contract work.  He stressed more
than once that the working conditions vary.  As well, he tried to network in
order to obtain local contract work, but he had no success in the contract
world.

[42]        
In March 2012, the plaintiff took a job as foreman at Aqua-Guard.  At Aqua-Guard,
the plaintiff’s rate of pay was $50,000 a year, compared to $70,000 at Air
Canada.

[43]        
Then, one Friday afternoon in June 2012, the plaintiff received a call
from his friend, Mark Roesler, who told him to send his curriculum vitae
to Pacific Avionics. Mr. Roesler worked there as a quality assurance
manager.  The plaintiff sent in his résumé that Friday.  On Monday he was interviewed. 
He was frank with the interviewers, telling them that he had no customer
relations experience; however he did explain about his varied background
working with machines.  Mark Roesler had also put in a word and told them that
he was very familiar with the plaintiff and knew that he was a personable
individual, with a calm demeanour, who was easy to get along with.  He was
hired, and started work at Pacific Avionics on July 3, 2012.

[44]        
Pacific Avionics is a repair facility for instruments in the cockpit,
including the black box and new installations for smaller airlines, such as
Yukon Air, Air North and Pacific Coastal.  The company works out of the
Vancouver Airport at the South Terminal.  There are 27 technicians and ten
managers.  They are part of larger group, the INP Group, and there is an
opportunity for growth and advancement within the company.

[45]        
The plaintiff’s salary at present is $55,000.  From Aqua-Guard to
Pacific Avionics, he has enjoyed a pay raise.  He has more free time.  His pain
is being managed and it is easier to spend time with his children, and he feels
better overall.

[46]        
As a customer service representative, he liaises with the customer while
the aircraft is being serviced.  Although he rarely does any physical work
himself, he will put a vest on and go out with the pilot-owner to inspect the
aircraft.  He oversees the craft when it is in for repair, verifying serial
numbers, inspecting for needed repairs and signing off on necessary repairs and
maintenance, which he is trained and certified for.  The plaintiff’s window
looks out onto the runway.  He still feels the call to work on an aircraft, but
he understands that this current job is far better for his physical condition.

[47]        
On cross-examination, the plaintiff agreed that the job at Pacific
Avionics was a very good job for him in terms of both physical activities and
benefits.  The difficulty for the plaintiff is that it does not pay as well as
what he received at Air Canada; however the reality is that the Air Canada job
has ceased to exist and the only possibility for employment would have been on
a contract basis.

[48]        
For the same reasons that the plaintiff wanted to return to his family
from Toronto, he stated that he was wary of doing contract work overseas.

IV.           
The plaintiff’s Early Background

[49]        
Mr. Rahim was born in Georgetown, Guyana, and moved to Canada at
the age of 11.  One of his older brothers had come to Canada first and
sponsored the family.  It was a difficult decision for the family to choose to
leave Guyana for Canada, but the political climate was such that business
owners such as their family were being forced out.  At first, he stayed with
his brother in Scarborough, Ontario.

[50]        
The trip from Guyana to Canada, the plaintiff’s first time in an
airplane, was exciting for him.  It was arranged for him to visit  the cockpit
to meet the pilots and to see the instrumentation.  This time had a profound
and lasting impact on him, and was one of the cardinal moments in his life, as
it determined his future vocation.  He had first wished to be a pilot, but
because of vision difficulties, he was unable to go into a program that would
have seen financial assistance for the training.  Had he wished to pursue
flying, given his vision, he would have had to train privately.  As a
consequence, he decided to change course and pursue training in structural
mechanics, which he did with success.

[51]        
Following his graduation from high school in 1990, the plaintiff
attended Seneca College in North York, Ontario, where he studied electronics
and aviation in a two-year program which he completed in 1992.  His initial
certification was aircraft maintenance technician with a designation in
electronics.

V.             
CAREER IN AVIATION MECHANICS

[52]        
He had initially wanted to work for Ward Air in 1992.  However, in 1992,
Ward Air closed operations in a corporate takeover.  The aviation industry, generally
at this time, had taken a downturn.  Mindful of his responsibilities, and
having married Sharda in August of 1991, he worked other jobs, such as at the
Ford Motor Company, doing quality control for airbags, but then again he was
laid off.  At that time, Sharda also had similarly been laid off from her
position.  They decided to take the opportunity to travel to the west coast in
British Columbia.  The plaintiff’s sister-in-law lived here and also Canadian
Airlines was located in British Columbia.

[53]        
What was a vacation ended up being the foundation of their decision to
move to British Columbia, because the plaintiff obtained an interview with Canadian
Airlines and he was greeted with enthusiasm.  However, his interviewer told him
to go back to school and to upgrade his training.  The plaintiff followed that
advice and took further education at the British Columbia Institute of
Technology  (“BCIT”) in Vancouver.  In 1996, he started at BCIT on a 9-month
course in aircraft maintenance with a structural maintenance designation.

[54]        
Aviation in 1996 was on the upswing and as soon as he had a
certification and he had his résumé in hand following his graduation in
December 1996, he called his contact at Canadian Airlines and gave him his
résumé.  He received a phone call from Canadian Airlines in the New Year and
the decision was made.  In March 1997, he became an aircraft structural
engineering apprentice with Canadian Airlines.

[55]        
There were many physical elements to the job that required unusual
physical positions.  Working on an airplane, everything in the aircraft is
accessible from underneath; however absolutely everything has to be checked. 
Some parts are only accessible with one’s hands and there were often times when
he would be using a mirror and would only see his hands working on screws by
way of the mirror and flashlights.  He would be using drills in tight areas and
inspecting areas that were tight fits.  Panels had to be removed.  There were
on average 50 screws in an average panel.  He would have to remove all the
screws and each of those panels, in order to perform the necessary inspection
and maintenance.  Frequently entailing a good look at all of the aircraft would
require the use of mirrors because the areas were so small or crawling and
wiggling to get into the areas deep in the wing.  Often the plaintiff would
have to twist and he would be wearing a respirator.

[56]        
Aircrafts are made chiefly of aluminum and there is corrosion which
occurs.  Sometimes, the metal will have to be cut out with cutting tools, which
entails getting into really tight spots.  He had to use air tools as well,
frequently using these tools above shoulder height and over his head.  He is
looking up and holding up the panels while he is unscrewing them and putting
them back into position.

[57]        
In heavy maintenance, he has four to six weeks for the airplane to be
inspected and fixed.  During the course of that period, in the first few weeks,
every single panel of the airplane comes off and every single screw has to come
out.  For this, he used an air gun and ratcheting tools, and these are held
overhead.  The screws get rusted in place and the task is difficult.

[58]        
The plaintiff was also licensed with Transport Canada to perform
inspections, and he had the authorization and certification to sign off on
inspections.  As a licensed mechanic he had the authority to confirm that the
aircraft was fit for and in conformity to all the regulatory bodies’ rules and
regulations and that the integrity of the aircraft was not compromised.

[59]        
In 2007, there was a downturn in the economy and Air Canada laid off
approximately 1,000 workers.  In April 2007, he was offered the option to
transfer to Toronto, so he chose to remain employed and commenced work for Air
Canada in Toronto, where he continued until June 2009.  He worked the night
shift there, readying planes and doing overnight maintenance, which was unlike
the maintenance work that he performed in Vancouver which were major
maintenance schedules of the aircraft.

[60]        
As a consequence of his decision to work in Toronto, he and his wife
decided that he would commute between Vancouver and Toronto but the family
would continue living in Vancouver.  He worked on for four days and off for
four days, and, having finished a shift in the morning, he would catch the
earliest flight he could to Vancouver which, because of the time difference,
would enable him to be in the Lower Mainland in the mid-afternoon and available
to pick up his children from school.  He found the time difference understandably
fatiguing, however, and effectively he only enjoyed two quality days before he
had to return to Toronto.

[61]        
He is a handyman, and in May 2005, he helped to build his own house.  Because
he had taken on the responsibility of caring for his in-laws and providing them
with a place to live, he wanted to build a dream home to his ideals which, as
they are not very mobile and have difficulty with stairs, would include a place
for them with a full bathroom.  He also wanted to have a kitchen with
sufficient space for the large extended family.  His sister-in-law and her
husband live only a five-minute walk away and the plaintiff’s house became the
gathering place for the family.

[62]        
His father-in-law’s health has not been good and that was an additional
consideration for the plaintiff’s decision to commute rather than staying long
periods back east.

[63]        
Following an extended period of time commuting in this way and leaving
his wife to do everything at home, it was decided leading up to Christmas in
2008, that his wife and two children would move to Toronto.  However, because
they were unsure how long the situation would last, it was decided they would
only rent a basement suite.  His in-laws would remain in the house in Surrey.  Mr. Rahim
continued to pay the mortgage on the Surrey home, and the family rented a
basement suite in Toronto in January 2009.

[64]        
Fortunately, a new contract with Air Canada was obtained in April 2009,
which enabled the plaintiff to return to Vancouver.  At the end of the school
year in June 2009, the family returned to Vancouver.  His wife first flew the
children back to the Lower Mainland and then returned to Toronto, so that she
and the plaintiff could drive back to Vancouver.  During that trip, they
discussed how they wanted their new life to be.  They used that time to reflect
and reconnect.

[65]        
The plaintiff had many projects that he had put on hold, including
building a tool shed and properly looking after his lawn, and in August 2009,
he was preparing to start on those projects when he was involved in the accident.

[66]        
When he first came back to Vancouver, the plaintiff did overtime work,
but he did not do any overtime work when he was living in Toronto and commuting,
in order that he could spend the time with his family.  The work he was doing
in Vancouver, commencing in June 2009, was exactly as he had been doing before
the move to Toronto.

[67]        
He had plans to work more overtime, which was banked, and then, after
accruing 100 hours, was paid out.  He earned $33.20 an hour, and for overtime, he
earned time and a half for the first eight hours and double time after that. 
He normally worked a 40-hour week.

[68]        
He fractured his right hand on February 27, 2011, changing a light
fixture in the bathroom.  He fractured a metacarpal bone in his right hand,
requiring him to wear a cast on his hand for three months.  He was completely
off work during a four-month period.  During this period, the enforced rest
caused him to feel greatly improved.  He found, however, on his return to work
the aches and pains returned.

VI.           
Prior Motor Vehicle Accidents

[69]        
In 1992, the plaintiff was involved in a motor vehicle accident from
which he suffered injuries, including low back pain and tightness.  He recalled
going to physiotherapy for a short period of time but then he recovered.

[70]        
He sustained injuries in another accident in May 2006, which included
headaches, neck and shoulder pain, and he was off work for what he believes was
a two to three week period.  Physiotherapy greatly helped him after this
accident.

[71]        
In December 2007, he was injured in another motor vehicle accident, when
he was rear-ended at a stop light.  He suffered neck, back and shoulder pain
and headaches.  He was referred to physiotherapy and he was off work for some
time, but was soon back to full physical activities.

[72]        
He testified that, prior to this accident, he was well into his recovery
from the previous accidents.  He was able to do most of what he did before the
motor vehicle accidents.

[73]        
His has a history of diabetes in his family.  Because of his diabetic
risk, he is very mindful of his health, but he has no general health problems. 
He does suffer from sleep apnea, but has an apparatus for that, as noted.  He
has no other illnesses which would impact on the injuries here.

VII.          
The plaintiff’s EARNINGS and Lifestyle

[74]        
The plaintiff’s earnings are as follows:

2006                   $74,253.65

2007                   $72,273.51

2008                   $70,348.50

2009                   $65,280.60

2010                   $39,734.78

2011                   $64,342.96

[75]        
The 2008 earnings reflect a small amount of RSP income.  Mr. Rahim’s
earnings for the year were $69,875.50.

[76]        
The 2010 earnings reflect the year that the plaintiff was employed by
Air Canada but laid off, whereupon he found work at Aqua-Guard.  He also
received some disability payments and employment insurance in that year.

[77]        
In 2011, his net employment income was $51,678.38.  This was composed of
$26,634.53 from Aveos, as well $25,043.55 from Air Canada. He also had
disability earnings from Great-West Life.

[78]        
In 2012, he earned $19,268.17 from Aveos, $10,432.88 from Aqua-Guard,
$25,174 from Pacific Avionics and $970.00 from employment insurance.  He also
received a one-time payment of $18,590 in December 2012, which reflected an
amount that the union had negotiated, were Aveos to go under within one year,
and that had in fact happened.

[79]        
The plaintiff agreed that the last time he worked overtime was
February 9, 2009.  Because of his involvement with his son and coaching,
he would not have been working much overtime.  He usually would confer with his
wife prior to taking on any overtime.

[80]        
The plaintiff was asked about his plans for retirement.  He has RESPs
for his children’s education and he contributes annually to an RRSP.  With Air
Canada, he had a pension but that is locked in until he is 65 years of age.  At
the age of 52, he can retire with a reduced pension, and at 55 he can retire
with a full pension.  He plans to work until he is 65.

[81]        
In describing his lifestyle, he testified that in the past he splurged
with the family vacations.  While he was still at Air Canada, the family took
three vacations a year, including a Hawaii trip.  However, their last vacation
was in 2010.

[82]        
In terms of his present health, just before he started at Pacific
Avionics, he had a flare-up and he went to see a chiropractor who prepared a
whole treatment plan for him.  He does stretches.  He continues to take the
anti-inflammatory naproxen.  However, he stresses that his current employment
is substantially less physical, so his pain is not the same as before, when he
worked at Air Canada.  Pacific Avionics has enabled him to reduce his physical
activity.  There is no hands-on as there was when he was a mechanic.  If
everything is okay with his health, he might go back to Air Canada, as he
prefers to work as a structural engineer, he testified.

[83]        
In terms of activities that are not work-related, his wife does the
majority of the driving, and ensures that their children are taken to their
activities.  There are days when he does this, and he enjoys good quality time
with his children.  In terms of the household projects, he still has to do
build his tool shed.  His house, which he helped to construct, is now several
years old and requires ongoing maintenance, including dealing with leaky
faucets, nail pops, the pressure washing of the exterior, and for all of these
projects, he will need help.

[84]        
Overall, he testifies that his life has worked out well.  He has been
able to pursue his dreams, get an education, build a family, build his dream
home and have a career.  While he was unable to fulfill his dream of becoming a
pilot, he remains optimistic and calls it a dream that has been “put on hold”. 
His dreams have evolved.

[85]        
Mr. Rahim had never planned on going into the management field, and
he still hopes one day to regain his physical capacity to work as a structural
mechanic.

[86]        
Mr. Rahim was assessed by Dr. Daniel Gouws who focuses on
occupational medicine.  He told Dr. Gouws that he wanted to get into
management, but that it took him away from his real desire which was to return
to mechanics.  The plaintiff is managing with his pain, he knows his body well,
and he agrees that he can go for long periods now without pain.  He is managing
his household chores.  His son cuts the grass.  Both he and his father-in-law
help his wife with other chores.

[87]        
He is aware, and conceded in his evidence, that the aviation industry is
a volatile one, with a number of people remaining unemployed from Air Canada’s
first lay off, and he obtained secured employment with Aqua-Guard.

VIII.        
plaintiff’s Previous Accidents

[88]        
The plaintiff has on and off symptoms in his lower back.  From his accidents
in 1992 and 1998, he agreed that he always had pain, but nothing significant
until 1998, when he had a workplace accident.  A diagnosis of spondylothesis
was later made due to an L5 disc degeneration which was causing him some pain
on and off from 1998 to 2006.  He has experienced some pain and tightness as a
consequence.

A.            
Workplace Accident – 1998

[89]        
The workplace accident of 1998 occurred when he was working in the upper
level of a 737 Boeing airplane.  When he was stooped over, bending between the floor
beams, he felt like he could not get up, that he was stuck.  He needed
assistance to get to first aid.  He believes he was off for a couple of weeks,
but he is not sure.  He knew following that, that there would be times of
aggravation.

[90]        
He discussed his WCB claim injury with his physicians, and they knew
that he had ongoing neck and right shoulder pain as a consequence.

B.             
Motor Vehicle Accident – 2006

[91]        
On May 22, 2006, the plaintiff was involved in a front-end
collision with a car that was turning left.  He injured the right side of his
neck and his right arm, and his right shoulder was also sore.  Following that,
he complained to his doctor, and he was referred to Surrey Sports Medicine.  He
has received 14 physiotherapy treatments.

[92]        
After he completed this course of treatments, his pain had improved, but
he was not completely healed, and he had some residual problems for a period
after that.  By September 2007, he has had occasional flare-ups, and he still
had a recurrence of a stiff neck.  He had difficulty sleeping, and his sleeping
pattern was off a bit, but he does not recall having major sleep disruption.

C.             
Motor Vehicle Accident – 2007

[93]        
In the December 2007, he was rear-ended in Surrey.  Injuries to his
right neck and right shoulder caused him pain.  He attended Moez Dahanji for
physiotherapy.  He also went to a chiropractor in Newton for his low back and
neck pain.  On March 29, 2008, he was still having symptoms and occasional
flare-ups.

D.            
Prior Litigation

[94]        
These two earlier motor vehicle accident cases were the subject matter
of litigation.

[95]        
The plaintiff’s injuries during that time included injuries to his
cervical spine and his shoulder girdle from the accident of May 2006, with
continuing intermittent symptoms up to the second accident in 2007.  From the
2007 motor vehicle accident, he suffered soft tissue injury to his lower back
and midback, and he also experienced aggravation of his low back injuries he
had sustained in the previous accident.  He agreed that there were times that
his work aggravated his low back symptoms after 2007.  He continued to have
ongoing low back problems up until the time of the October 2008 motor vehicle
accident.  While he did not recall the exact sequence, as stated by the
plaintiff, “I would always have a little bit of a flare-up here and there”,
particularly after work.

[96]        
The plaintiff agreed he had occasional pain in his neck and right
shoulder.  His neck and right shoulder were not completely healed by the time
of the 2009 accident.  While the plaintiff agreed that there had been slight
improvement, in his words, “it was not 100%”.  He was questioned whether he was
still improving, and whether his neck, right shoulder and back were “a work in
progress”, and he responded, “yes, they’re definitely a work in progress” and
were getting better.  He agreed that his progress was gradual and continual.

[97]        
In cross-examination, Mr. Rahim was questioned about an incident
that resulted in his having to go to the hospital.

[98]        
One day in August 2010, when he was at home, the plaintiff’s back seized
up after he sneezed.  He attempted stretching to relieve the pain, but after
they proved ineffective, he attended at the Surrey Memorial Hospital, where
x-rays were taken, he was given an injection of painkillers, and his doctor
told him to take it easy.  After that incident, his back was sore for about a
week or so, but then returned to normal.

[99]        
Mr. Rahim also had headaches as a consequence of the October 2009 accident. 
Initially, after the accident, they were very short.  With the help of the
physiotherapy and the medication he was taking, they did eventually go away. 
But in the night, if he sleeps in the wrong position, the pain will come,
including the headaches.

IX.           
ADDITIONAL Witnesses:

A.            
Mark Roesler

[100]     Mr. Roesler
testified on behalf of the plaintiff.  He was the quality assurance manager
with Pacific Avionics and had worked with the plaintiff when he was at Aveos. 
He was a supervisor and oversaw the maintenance crews responsible for the
required checks of the aircraft.  Mr. Rahim reported to him on specific
projects.  Mr. Roesler would assign Mr. Rahim to crews.  He planned
the assignment and additionally dealt with overtime issues, including the
allocation assignment and dispute resolution.

[101]     Mr. Rahim
contacted Mr. Roesler about available overtime from the period of
October 31, 2009 to the end of February 2010.  He felt Mr. Rahim
would be a good customer service representative as he dealt with people well,
he had taken on a number of projects at Aveos and he was keen to do tasks.  Mr. Roesler
had assigned him overtime in October, November and December, which are
traditionally high vacation months that normally exceed the number of available
workers.

[102]     According
to Mr. Roesler, Mr. Rahim was a good worker.  He was calm and good
with others.  He had done well in his work.  Mr. Roesler knows that,
physically, at present, Mr. Rahim suffers from limitations.  The plaintiff
has expressed his discomfort to him.  Mr. Roesler arranged to have proper
seating for Mr. Rahim, with his computer screen at the proper level
height, but no other accommodations were necessary for him in his new job.

[103]     In
cross-examination, Mr. Roesler was asked if he was a friend of Mr. Rahim’s. 
Mr. Roesler replied he was more of an acquaintance.  He had been
authorized by Air Canada to provide the information respecting overtime and was
aware of what the use of it was going to be for.  He was aware of the number of
aircraft maintenance individuals who had been laid off, which was just under
400.  He noted that not all of those who were laid off were lucky enough to get
jobs, and he is aware that some have left the industry entirely.  The climate
of the industry is not good, and there is little chance for advancement.

B.             
Sharda Rahim

[104]     Mr. Rahim’s
wife, Sharda Rahim, was called as a witness.  At the time of trial, she had
just turned 41.  She lives in Surrey, British Columbia, with her husband, their
children and her parents.  She was born in Fiji in March 1972, and came to
Canada when she was 13 years of age in 1985.  The family initially went to
Toronto, where she went to school.

[105]     She and
her husband dated on and off for five years before marrying in 1995.  She found
the plaintiff to be charming and friendly.  They had the same values and they
were both family-oriented.  They decided to move from Ontario to British
Columbia in the fall of 1995.  She was aware of his passion for aircrafts and
that he had two opportunities, one with Air Canada in Montreal and one with
Canadian Airlines in British Columbia.  As they were newly-married and neither
were employed at that time, they were able to go anywhere, and they chose to go
to where her sister lived, which was on the west coast.

[106]     Mr. Rahim
decided to go to the British Columbia Institute of Technology to study aircraft
maintenance structure, she testified.  During that period of time, they lived
with her sister.  In February 1998, Akil was born and in April 2002, Liaya was
born.

[107]     Ms. Rahim
testified that their children adore their father and go to him for comfort.  He
has all kinds of pet names for them and sings lullabies to them.  They want
their “daddy” when they are in distress.

[108]     She testified
they wanted a home only a couple of blocks from Ms. Rahim’s sister in
Surrey. They decided to build a home to better suit their needs.  Mr. Rahim
designed the house with a two-bedroom basement suite to ensure that her parents
could comfortably live with them.  He was aware that his father-in-law is a
cook who needs a kitchen to prepare his speciality dishes in a particular way,
so he built the kitchen to those specifications.

[109]     She
explained to the court that Mr. Rahim is the handyman for the family.  She
recalls that during the time Mr. Rahim was working in Toronto, her parents
continued to live in the Surrey house.  When the family moved to be with the
plaintiff in Toronto, her parents stayed behind and lived in the family
residence.  When Mr. Rahim was able to return to work in Vancouver, Ms. Rahim
took the children home by air, and then returned to Toronto so she and her
husband could drive back together.

[110]     The two
used the time during that trip to make plans, which included Mr. Rahim fixing
up the house, which was beginning to show its age.  As well, he had a long list
of projects, including building a tool shed and doing heavy yard work, to
undertake.

[111]     After the
accident, Ms. Rahim said she felt she had “lost” her partner, in a way. 
She was used to him being active around the house and to people being around
the house all the time, visiting and planning activities.  After the accident, Mr. Rahim
was unable to socialize the way that he did before.  He would return home from
work and require either ice packs or a heating bag.  Their children would ask
him if he needed a massage.  It was hard to get him out of the house to
socialize.  She was mad at him, but she knew her anger was misplaced, as it was
not his fault for being in pain.

[112]     When he
was laid off in April 2010, Mr. Rahim started looking for work, which he
secured at Aqua-Guard in North Vancouver, which was a long commute from
Surrey.  Meanwhile, their son was involved in baseball, but Mr. Rahim was
unable to help much with that.

[113]     Ms. Rahim
also testified that, as a consequence of the accident, their relationship has
suffered due to his pain.  She feels like she has lost her best friend.

[114]     Since Mr. Rahim
started his job at Pacific Avionics, she knows that he is physically doing
better.  He is less stressed.  However, he is currently not doing much around
the house, and he supervises the family instead in doing the chores.  He is
home in the evenings.

C.             
Radha Naidu

[115]     Radha
Naidu, Sharda Rahim’s sister, testified.  She resides a five-minute walk away
from the Rahim residence.  She testified to her relationship with Mr. Rahim
whom she feels is like a brother to her.

[116]     In 2009,
when Mr. Rahim moved to Toronto, and his family came to join him, the yard
work was done by Ms. Naidu’s husband, who would help her father.  Mr. Rahim
is the handyman for the family which includes his sister-in-law.  During his
absence in Toronto, it was very difficult for Ms. Naidu.

[117]     After the
motor vehicle accident, there was a big celebration for her husband’s 50^th
birthday.  Normally, this was the type of event that the plaintiff would be
very active in putting together.  He was considered a good organizer for such
family events.  However, he was unable to help plan this important family
event.  He was in pain, seeing the doctor regularly and taking medication.  He
can no longer do home improvement.  He used to want to socialize a lot and have
people over; however, after the accident, his sister-in-law noted the change in
his mood and his demeanour.

[118]     Since he
started working with Pacific Avionics, however, she has noticed a degree of
improvement.  He is calmer and it is not as often that he requires massages of
his back to assist his pain management.

X.             
Medical opinions

Pre-Accident

[119]     As noted,
the plaintiff had been injured in earlier motor vehicle accidents.  During this
process, he was asked by the defendants in those cases to see Dr. Hugh
Anton, a physiatrist who specialized in rehabilitation and physical medicine,
which he did on February 5, 2009.  Dr. Anton supplied a medical legal
report on the plaintiff’s condition.  That report was not tendered in these
proceedings.

[120]     Mr. Rahim
was questioned about this and asked whether, in the medical legal report,
Dr. Anton had diagnosed a myofascial condition in the plaintiff’s neck and
right shoulder.  Mr. Rahim was unsure of the medical terminology but noted
he had been diagnosed with soft tissue injuries.

[121]     The
plaintiff also saw Dr. Donald G. Werry, an orthopaedic surgeon prior to
the 2009 accident.  He recalls that at that time he was told that he had a good
prognosis.

Dr. Philip Chemerika

[122]     Dr. Chemerika
was qualified as an expert witness able to give opinion evidence in the area of
family medicine, including the diagnosis, prognosis, treatment and management
of injuries and the extent of disability and future care required.  His
qualifications were not challenged by counsel for the defence.

[123]     Dr. Chemerika
works at the Kings Cross Medical Clinic in Surrey, British Columbia.  He
prepared a report on the plaintiff and his report was tendered as an exhibit in
this trial.  It was dated February 4, 2013.  It reviewed the injuries and
his care and treatment of the plaintiff.

[124]     Dr. Chemerika
first saw the plaintiff on August 30, 2011, when he was complaining of
pain to his right shoulder and neck while performing his job duties.  He found,
on examination of the plaintiff, that there was tenderness to his right
trapezius muscle and that his range of motion was normal in his shoulder and
neck, but the movement caused the plaintiff to suffer pain.  An x-ray revealed mild
degenerative changes at the C6-7 level.

[125]     Dr. Chemerika
next saw the plaintiff on February 20, 2012, when the plaintiff complained
of pain to his neck and shoulder when he was doing heavier duties at his work. 
He complained of tenderness to his right trapezius and cervical muscles. 
Dr. Chemerika noticed decreased rotation to the neck area.  He prescribed
naproxen, an anti-inflammatory analgesic, and advised Mr. Rahim to
exercise regularly.

[126]     Mr. Rahim
returned to see Dr. Chemerika on June 15, 2012, again complaining of
low back pain.  On examination, there was tenderness to the lumbar muscles, and
Dr. Chemerika noted a decreased range of motion to the lumbar spine.  He
advised the plaintiff to continue with his regular exercises.

[127]     Dr. Chemerika
last saw the plaintiff before preparing the report for this trial, on
January 16, 2013.  Mr. Rahim complained at that time of continued
pain to his right shoulder and low back, including intermittent spasms.  He
told Dr. Chemerika that he was unable to play sports.  He also explained
he could not do any kind of overhead work, so he had changed to a more
sedentary desk job.  Dr. Chemerika found no neurological symptoms.

[128]     On the
physical examination, Dr. Chemerika noted tenderness to the right
trapezius and cervical muscles.  The examination also revealed a decreased
range of motion to the neck and to the lumbar spine.  While the plaintiff could
move his right shoulder within a normal range of motion, this caused him pain.

[129]     Magnetic
Resonance Imaging (“MRI”) testing conducted in January 2013 of the plaintiff’s
cervical and lumbar spine and his right shoulder, revealed cervical spondylosis
with moderate spinal stenosis at C5-6 with “posterior disc/osteophyte
complex”.  Dr. Chemerika explained that those are degenerative changes
which result from age and previous trauma.  The MRI also revealed mild
tendinopathic changes to the supraspinous tendon in the right shoulder and mild
facet arthropathy at multiple levels of the lumbar spine.  It also showed a
disc protrusion at the L4-5 level which resulted in encroachment and
compression of the thecal sac which were contacting the nerve roots.  There was
also a disc protrusion at the L5-S1 level.

[130]    
In conclusion, Dr. Chemerika stated:

… Mr. Rahim had been
involved in two prior motor vehicle accidents in 2006 and 2007 in which he
sustained injuries to his low back, neck and right shoulder and these injuries
were exacerbated as a result of the October 27, 2009 motor vehicle
accident.  After the October 27, 2009 accident he was off work for a few
months and then gradually returned to full-time work.  This is a reasonable
timeframe for his injuries.

[131]    
Regarding the MRI examinations, Dr. Chemerika stated that it was
difficult to know if the disc bulging of the lumbar spine was a result of the most
recent accident, given there was no previous MRI to compare it to.  They were,
nonetheless, symptomatic and caused ongoing back pain for the plaintiff and, in
the words of Dr. Chemerika, “at the very least” were aggravated
“significantly” by the accident of October 2009.  He wrote:

It is my opinion that he suffers
from chronic myofascial pain syndrome involving his neck and right shoulder
girdle as a result of the cumulative effect of his previous injuries in the
2006 and 2007 motor vehicle accidents and his most recent accident on
October 27, 2009.  He is unable to do overhead work, heavy lifting,
repetitive bending or work in confined spaces which is required in his previous
line of work.  Therefore he has had to change employment to more sedentary one
in which he is functioning well.  He also has been limited in his ability to
play sports because of these injuries.  It is my opinion that his condition has
plateaued and is unlikely to recover any further as he is more than three years
post injury.  He is more likely than not to have intermittent exacerbations of
his condition which is quite common.  During these exacerbations he may need
short courses of physiotherapy or massage therapy as well as medication such as
anti-inflammatories and muscle relaxants.  He needs to do regular active
exercises to minimize recurrence of his injuries.  As for the lumbar disc
bulges I do not believe that these are surgically amenable at this time.  If
they become more symptomatic he may benefit from a neurosurgical consult with a
view to surgery or steroid injection.

[132]     Dr. Chemerika
believed the plaintiff to be symptom-free prior to the October 2009 accident. 
He indicated that he did not know the plaintiff was having ongoing symptoms in
2007, nor did the plaintiff discuss with him the 1998 Workers Compensation
Board back injury claim or the 1992 accident.

[133]     Dr. Chemerika
agreed that being an aircraft mechanic could cause strain to the joints and
back, particularly working overhead with power tools, and being in sustained
contorted positions would be a strain.  With prior neck and shoulder strain,
even without the October 2009 motor vehicle accident, he “may” have had
flare-ups.

[134]     With
respect to his finding of osteophyte complex, Dr. Chemerika explained that
narrowing of the spinal canal, which the osteophyte complex caused, would
affect the neck and right shoulder region.  He agreed that the osteophyte
complex could be due to the earlier accident.  As for the mild tendinopathic
changes, he cannot say if they were related to the October 2009 accident.  In
any event, they would be an aggravating factor but not the sole cause of his
shoulder complaints.  The disc bulge, he explained, could be due to aging and
can occur without reason, and that they can improve.  Cumulative effects caused
by the myofascial pain, he said, played a role in the plaintiff’s current
condition stemming from the October 2009 accident.  It is possible that he
would have had these problems even without the accident.  He did not agree,
however, that the plaintiff’s work alone would cause the pain that he is now
suffering.

[135]     In
re-examination, the plaintiff clarified that he had pain from the 1992 accident
but it was not significant until the workplace injury in 1998 brought on the
spondylothesis diagnosis.  The L5 disc degeneration caused pain and tightness
on and off from 1998 to 2006.

Dr. Daniel Gouws

[136]     Dr. Gouws
was called as an expert witness in the area of occupational medicine. 
Occupational medicine forms the lion’s share of his practice.  He was qualified,
as an expert, to give opinion evidence on the diagnosis, prognosis, treatment,
management and extent of disability and future care of injuries.  While he has
worked extensively in the field of occupational health as a clinician and in
managerial positions, he is not a specialist in occupational medicine.  His
main area of expertise is performing medical assessments regarding
rehabilitation and diagnosis, and clarification of an individual’s fitness for
work.

[137]    
Dr. Gouws opined that Mr. Rahim had pre-existing longstanding
low back pain as well as ongoing pain from injuries to his neck and right
shoulder areas in the accidents of May 22, 2006 and September 17,
2007:

51.       Following the motor
vehicle accident of October 27, 2009, Mr. Rahim experienced an
exacerbation of his back, neck and shoulder pain and also had headaches.  As a
result of this accident Mr. Rahim had another setback and had to take time
off work to recover.  It is my opinion that the accident of October 27,
2009 significantly aggravated Mr. Rahim’s pre-existing symptoms and that
he sustained additional injuries to his neck causing him to develop headaches
as well.  Mr. Rahim also lost time off work as a result of the fracture
that he sustained to his hand, and has also had some situational depressive
symptoms related to the death of his parents and being laid off from his job at
Air Canada.

[138]    
He also rendered the opinion that Mr. Rahim is permanently
impaired:

61.       It is my opinion that Mr. Rahim has a
permanent functional impairment, and that he will not be suited to go back to
aircraft maintenance work.  It is my opinion that the third accident that
occurred on October 27, 2009, in addition to the previous two motor
vehicle accidents, has had the cumulative effect of disabling Mr. Rahim to
a point where he is not able to work as an aircraft maintenance technician.  It
is my opinion that Mr. Rahim should avoid activities such as sustained and
repetitive above shoulder reaching and handling that aggravate his symptoms. 
This will preclude him from returning to working as an aircraft maintenance
technician.  It is my opinion that Mr. Rahim now has less employment
options as a result of his ongoing physical impairment, than he would have had,
were it not for the third motor vehicle accident of October 27, 2009.

62.       Mr. Rahim has
appropriately taken on lighter, less physically demanding work where he now
works in an administrative/managerial capacity.  It is my opinion that this
offers him a work situation that will be durable and sustainable and where he will
have a reasonable degree of symptom control.

[139]     It was
Dr. Gouws’ opinion that the plaintiff has reached his point of maximum
medical improvement but that he would benefit from ongoing active
rehabilitation in the form of a self-directed exercise program.

XI.           
Credibility

[140]    
When assessing credibility, the Court must consider a number of
factors.  These were summarized by Dillon J. in Bradshaw v. Stenner,
2010 BCSC 1398, as follows:

[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. 152 (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).

[141]     In this
case, I find that the plaintiff was a credible witness.  He gave his answers
with care and thought.  He readily conceded certain matters when they were put
to him.  He appeared to me to be endeavouring, straightforward and give honest
answers.  Importantly, he admitted to feeling better and improving.  I accept
his evidence.

[142]    
Counsel for the defendants referred the court to Jezdic v. Danielisz,
2008 BCSC 1863 and Faryna v. Chorny (1951), 4 W.W.R. (N.S.) 171 (B.C.C.A.)
at p. 174, where the Court of Appeal stated:

In short, the real test of the
truth of the story of a witness in such a case must be its harmony with the
preponderance of the probabilities which a practical and informed person would
readily recognize as reasonable in that place and in those conditions. Only
thus can a Court satisfactorily appraise the testimony of quick-minded,
experienced and confident witnesses, and of those shrewd persons adept in the
half-lie and of long and successful experience in combining skilful
exaggeration with partial suppression of the truth.

[143]     Sigurdson
J. adopted this passage, adding the considerations that “evidence in harmony
with the probabilities a practical person would readily recognize as
reasonable” is appropriate.

[144]     In that
case, Sigurdson J. found the plaintiff to have “exaggerated” and her evidence
to be significantly inconsistent internally and with the facts.

[145]     Additionally,
the Court was reminded of Chief Justice McEachern’s reasoning in Price v.
Kostryba (1982), 70 BCLR 397, in which the Chief Justice cautioned the
Court to be mindful of the surrounding circumstances in claims of “whiplash”,
as there was no objective evidence.

[146]     Here,
however, there is indication on an objective basis of the ongoing source of Mr. Rahim’s
trouble, as seen in the MRI showing mild facet arthropathy and disc protrusion
at the L4/5 level and the L5/5-1 level. Dr. Chemerika, indicated it was
difficult to say this particular accident caused the injuries.  However, given
that he was, for the most part, asymptomatic before and working hard at his job,
the accident, more probably than not, aggravated his injuries.  I find the
accident caused his back problems to become symptomatic.  This, in combination
with his myofascial pain involving his neck and right shoulder girdle, have
resulted in his ongoing problems.

[147]     With
respect to his wife, Sharda Rahim, I accept her evidence respecting her
husband, and find that there is nothing that she testified to which detracts
from his overall credibility.  She testified to the nature of the work he does
for her family.  It is clear that Mr. Rahim is an anchor for their family
and their extended family.

[148]     With
respect to Mark Roesler I find that he, too, is a credible witness.  He
testified to Mr. Rahim’s work ethic and stated that he persuaded Mr. Rahim
to leave Aqua-Guard to work for Pacific Avionics, and that he is a good
employee there.  I accept his evidence and find that he testified in a
credible manner.

[149]     I note
that he outlined the overtime hours available to the plaintiff between
October 31, 2009 and February 14, 2010, when they had both been
working at Aveos.

[150]     The
defence sought to make much of certain comments in an email that Mr. Rahim
sent to Mr. Roesler, in which he requested information required for his
law suit.  I find that this was simply an inappropriate joke made in
circumstances where he is asking Mr. Roesler to take time out of his busy
day.  Mr. Rahim was endeavouring to joke but it was in poor taste.  I do
not find it impacts on his credibility, nor do I find that it is an indicator
that he did not suffer an injury.

[151]     The e-mail
and past experience with claims were cited, inter alia, as reasons why
his evidence must be viewed carefully for inconsistency and exaggeration.

[152]     I find
that Lee Marshall was a credible witness.  He had recommended Mr. Rahim
for his position with Aqua-Guard on the basis that he knew that he would make a
good employee, and he had worked with him at Air Canada prior to
Mr. Marshall being laid off in 2007.  He gave his evidence in a
straightforward manner, without hesitation, and was not challenged in
cross-examination.  I accept his evidence.

[153]     Mr. Rahim’s
sister-in-law, Radha Naidu, testified as well.  I similarly accept her
evidence, and find that she testified in a credible manner as to the family
activities that Mr. Rahim would undertake.  I accept her evidence.

XII.          
Liability

[154]     Early in
this matter, the defendant who was driving the vehicle ahead of the plaintiff
was released from the action by way of notice of discontinuance.  Liability is
admitted for the accident by the defendant Abdullah Al Jundi, who was the
driver of the Mercedes.  The defendants, however, contest causation in respect
of the injuries alleged by the plaintiff and, rather, claim aggravation to the
plaintiff’s pre-existing injuries and conditions.

XIII.        
causation

[155]     Both
doctors Chemerika and Gouws note that the plaintiff did suffer from
pre-existing pain and had suffered neck and right shoulder injuries in his
earlier accidents.  However, this motor vehicle accident exacerbated his back,
neck and shoulder pain and caused headaches.

[156]     In finding
this, I am mindful of the activity level attested to by his employers and his
family in particular.  There was no issue that the plaintiff was a hard-working
individual, who, at his spare time, was his extended family’s handyman.  He was
also social and very involved in his children’s activities.  All of these areas
have been impacted by the accident.  I also regard the plaintiff’s candid
admission that whereas he is not as physically active as before as when he was
off work and now, given his employment, to be important factors in the overall
assessment of his evidence.

[157]     In
summary, I find the plaintiff continues to suffer pain from this accident.  In
brief, however, his pain is far less than before, as was conceded by him.  While
I am mindful, as stressed by defence counsel, that Dr. Gouws conceded Mr. Rahim’s
prior accidents put him at increased risk for occasional flare-ups of pain
indefinitely and would require modification or restrictions for work and
household chores, it remains that prior to the accident of October 27, 2009,
the plaintiff was working at 100% capacity and had an active social and family
life.

[158]    
The leading case on causation is Resurfice Corp. v. Hanke, 2007
SCC 7 para. 21:

First, the basic test for
determining causation remains the "but for" test. This applies to
multi-cause injuries. The plaintiff bears the burden of showing that "but
for" the negligent act or omission of each defendant, the injury would not
have occurred.

[159]     I find the
plaintiff has proven the injuries to his neck, right shoulder, headaches and
back and ongoing occasional pain, consequent on these injuries on a balance of
probabilities.

[160]     The
plaintiff must be compensated to place him in the same position he was before
the accident.  The defendant does not have to compensate him for any condition
the plaintiff would have suffered anyway: Athey v. Leonati, [1996] 3 S.C.R.
458.

XIV.       
DAMAGES

A.            
Non-pecuniary damages

i.      Plaintiff
position on non-pecuniary damages

[161]    
The plaintiff cited Stapley v. Hejslet, 2006 BCCA 34, for the factors
a court must consider in a non-pecuniary damage assessment.  Citing Lindal
v. Lindal, [1981] 2 S.C.R. 629, 129 D.L.R. (3d) 263, the Court noted as a
helpful reminder:

[45]      Before embarking on that task, I think it is
instructive to reiterate the underlying purpose of non-pecuniary damages.  Much,
of course, has been said about this topic.  However, given the not-infrequent
inclination by lawyers and judges to compare only injuries, the following
passage from Lindal v. Lindal, … at 637 is a helpful reminder:

Thus the amount of an award for non-pecuniary damage
should not depend alone upon the seriousness of the injury but upon its ability
to ameliorate the condition of the victim considering his or her particular
situation.  It therefore will not follow that in considering what part of
the maximum should be awarded the gravity of the injury alone will be
determinative. An appreciation of the individual’s loss is the key and the “need
for solace will not necessarily correlate with the seriousness of the injury”
(Cooper-Stephenson and Saunders, Personal Injury Damages in Canada (1981), at
p. 373).  In dealing with an award of this nature it will be impossible to
develop a “tariff”. An award will vary in each case “to meet the specific
circumstances of the individual case” (Thornton at p. 284 of S.C.R.).

[emphasis in Stapley]

[162]    
The court noted in Stapley that the common factors that have to
be considered by a court in awarding an amount for non-pecuniary damages:

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

(a)  age of the plaintiff;

(b)  nature of the injury;

(c)  severity and duration of
pain;

(d)  disability;

(e)  emotional suffering; and

(f)  loss or impairment of life;

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

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

(h)  impairment of physical and
mental abilities;

(i)  loss of lifestyle; and

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

[163]     For the
quantum for non-pecuniary damages, the case of Garcha v. Duenas, 2011
BCSC 365, before Boyd J. was cited.  In that case, the plaintiff also
worked in the aeronautics industry.  The accident in that case had occurred
January 27, 2007.  By September 2007, the plaintiff had returned to work
full-time, but was avoiding heavy work.  In February 2008, he suffered a hernia
injury at work but he still had not returned to his normal work duties.  In
February 2009, while lifting an object at work, he suffered a further inguinal hernia
injury.  He returned to work after a week, on modified duties, and then four to
six weeks after he underwent hernia repair surgery in April 2009, he was laid
off with WCB benefits.  He attended a full-time ten-week rehabilitation program
and then was ready to return to work.  By August 2011, he was back to work
full-time but performing modified work.

[164]     In
November 2010, he fell at home and cracked a few ribs.  He was advised to rest
and at the time of trial in February 2011, he was waiting to return to work
full time commencing March 14, 2010.

[165]     At the
time of trial, the plaintiff’s injuries were resolved, except for his neck,
back and shoulder pain.  His neck was painful one or two times a week, and it
radiated down both sides of his neck.  Over the course of two years, his left
shoulder pain had gradually improved.  His headaches were triggered only by
neck pain.  The trial judge found that his right shoulder posed the greatest
problem for him, in that he had ongoing pain aggravated by overhead
activities.  His midback continued to hurt him.

[166]     The trial
judge found that the plaintiff’s ongoing complaints were legitimate and
causally related to the injury suffered at the time of the motor vehicle
accident or that they were related to the hernia injury.  As here, the
plaintiff had to discontinue his favourite activities and to cut back on
housework and yard work.  His pain had impacted on his relationship with his
wife.  In those circumstances, the trial judge awarded $70,000.

[167]    
In the case of Vagramov v. Zipursky, 2010 BCSC 414, non-pecuniary
damages were awarded in the amount of $70,000.  It was accepted by the trial
judge that the plaintiff suffered minor transitory injuries to his knee, jaw,
chest and arm as a result of the motor vehicle accident.  As noted by Gaul J.:

[145]    What is more challenging however, is determining the
causation of his back, neck and shoulder pain.  It is challenging, because I
find Mr. Vagramov suffered from back, neck and shoulder pain prior to the
motor vehicle accident.  I reach this conclusion based upon the clinical
records of Newport as well as those of Dr. Tosefsky’s office.  These
records indicate that Mr. Vagramov attended at Newport complaining of
back, neck and shoulder pain in June 2004.  Dr. Tosefsky’s records confirm
that in July 2004, Mr. Vagramov attended at his office complaining of pain
in his upper back.  In cross-examination, Mr. Vagramov confirmed that the
pain being complained of had not subsided following the chiropractic treatments
he received and by the time he saw the physician in Dr. Tosefsky’s office.

[146]    Notwithstanding this
prior pain, I accept that the back and neck pain that Mr.  Vagramov
complained of following the accident was attributable to the accident.  However,
having reached this conclusion, I also find that these injuries were
significantly healed, with only some occasional mild pain and or stiffness, by
December 2004.  I also find that the intermittent discomfort and stiffness Mr. 
Vagramov has been enduring in recent years is largely attributable to the
nature of his present work where he is seated at a desk speaking on the
telephone for most of the day.

[168]     In those
circumstances, the award of $70,000 was granted.

[169]     The
plaintiff also cited the case of Rutter v. Allen, 2012 BCSC 135, a
decision of Joyce J.  Non-pecuniary damages in the amount of $65,000 were
awarded.

[170]     This
plaintiff had enjoyed a very active life before the accident, and was involved
in a number of sports.  His back injury, however, had significantly altered his
life.  In all the circumstances, the court awarded $65,000 non-pecuniary
damages.

[171]     Also cited
was the case of Fell v. Morton, 2012 BCSC 428, which awarded non-pecuniary
damages of $65,000.  The trial judge found that the plaintiff used to be a cheerful,
outgoing individual – see paras. 35-36.  The trial judge additionally
found that the plaintiff was a stoic and she should not be penalized for that.

[172]     In all the
circumstances, plaintiff’s counsel submits an appropriate award is in the range
of $60,000 to $70,000.

ii.   
Defence position on non-pecuniary damages

[173]     The
defendant cites the case of Pennykid v. Escribano, 2004 BCSC 954, a
decision of Slade J. in which $14,000 was awarded for non-pecuniary damages. 
The court was not satisfied that the plaintiff’s injuries in that case were as
severe as she believes: see para. 55.  Additionally, the plaintiff’s
injuries were severe enough to require her to be absent from work.

[174]     The
defence also cites Williamson v. Nakashimata, 2004 BCSC 1348.  This was
a summary trial application wherein non-pecuniary damages were assessed at
$20,000.  The court did not agree that the soft tissue injuries sustained by
the plaintiff in that case were in the moderately severe category.

[175]     The
defence also cites the case of Golam v. Fortier, 2005 BCSC 598, where
Powers J. awarded non-pecuniary damages of $25,000.  The facts before the
court were that the plaintiff continued to have some ongoing problems two years
after the accident, but the court determined that he would not suffer from
permanent disability but would continue to suffer pain which would interfere
with work from time to time.

[176]     An award
for $25,000 was similarly awarded in Lopez v. VW Credit Canada Inc.,
2008 BCSC 320, a decision of Chamberlist J.  The trial of that matter was
in December 2007 and partly one day in February 2008.  The accident had
occurred on February 3, 2005.  The accident had caused concern and pain to
the plaintiff’s neck, back, shoulder and arms, primarily the upper left area. 
A specialist in rehabilitation medicine provided a report indicating that the
plaintiff had sustained a moderately severe soft tissue injury and had suffered
pain for over two and a half years which had never completely resolved.  In all
of those circumstances, the court awarded non-pecuniary damages of $25,000.

[177]     The
defence also cited the case of Majewska v. Partyka, 2009 BCSC 175.  In
that case, non-pecuniary damages of $30,000 were awarded for injuries sustained
in a motor vehicle accident.  Initially after the accident, the plaintiff
suffered headaches, neck pain and tingling in her hands, and numbness in her
leg, as well as nausea and dizziness in the first few days after the accident. 
At the time of the trial in February 2009, after the accident on May 4,
2007, the plaintiff was 80% recovered.  In those circumstances, the court
awarded $30,000 in non-pecuniary damages.

[178]     The last
case cited by the defence was that of Ryan v. Klakowich, 2011 BCSC 835. 
In that case, there was an accident in December 2008.  The plaintiff suffered
from a congenital condition, scoliosis which she testified was asymptomatic
prior to the accident.  The court found, however, that she was receiving
chiropractic treatment for scoliosis on a fairly routine basis prior to the
accident.  There were also comments from her family doctor in September 2005
that she required a personal trainer due to the severe scoliosis.  In all the
circumstances, it was the conclusion of the court that the plaintiff had
exaggerated the extent of her injuries and their impact on her life.  The court
awarded $25,000 in non-pecuniary damages:  see paras. 82-83.

[179]     In
summary, counsel for the defence submits an appropriate amount for
non-pecuniary damages is $20,000 to $30,000.

B.             
Discussion on Non-Pecuniary Damages

[180]     Given the
peculiar facts of his case, that the plaintiff had sustained earlier accidents
that aggravated his injuries, it is difficult to find Mr. Rahim’s
circumstances akin to those cited by counsel.  I have additionally made the
determination that Mr. Rahim is credible (unlike the plaintiff in Ryan
v. Klakowich, supra, for example).

[181]     It is now
approximately three and a half years following the accident.  The plaintiff
still suffers ongoing headaches and back and neck and right shoulder pain.  His
pain, I find, is far less than it was initially, and while his doctors opined he
has “plateaued”, the plaintiff candidly admitted he continues to improve.

[182]     He has
lost out, however, on much of his family and social life.  Household chores are
left for other members of his family.  He is no longer as active in his
children’s activities as before.  He no longer works in the area he loved.

[183]     In all the
circumstances, given that Mr. Rahim worked through his pain and now is
working at a job which does not exacerbate his pain, and additionally taking
into account his pain-free periods, I find $50,000 is an appropriate award for
non-pecuniary damages.

C.             
Past Income Loss

[184]     The past
regular income loss is agreed at $7,967.58 between counsel.  What is not agreed
is the amount of overtime.

[185]     The
plaintiff, I find, did work some overtime in the past but the exact amount was
unclear.  Mark Roesler testified that he did assign him overtime.  That fact,
coupled with the plaintiff’s priority of spending time with his family, would
dictate that while he would likely have worked some overtime to finance his
household projects, which I accept, he would not have done so much as to
negatively impact on his time with his children, their activities and his time
with his extended family and his wife.  Accounting for this, together with the
negative contingencies, I assess lost of overtime at $5,000.

D.            
Loss of Income Earning Capacity

[186]    
The BC Court of Appeal in Kwei v. Boisclair (1991), 60 B.C.L.R.
(2d) 393 (C.A.) reviewed the framework for assessing loss of income earning
capacity at para. 25.

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

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

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

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

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

[187]    
Smith J. considered the factors Ashmore v. Banicevic, 2009 BCSC
211 where he noted:

[139]    The defence position is that the “substantial
possibility” test articulated in Steward v. Berezan, 2007 BCCA 150, 64
B.C.L.R. (4^th) 152, has not been met and that no award for past lost
income or for lost future earning capacity should be made.

[140]    While a literal reading of that statement might
indicate a change in the law, embodying an express direction to inquire first
into whether there is a substantial possibility of future income loss before
embarking on assessment of the loss (see Chang v. Feng, 2008 BCSC 49; 55
C.C.L.T. (3d) 203, and Naidu v. Mann, 2007 BCSC 1313, 53 C.C.L.T. (3d)
1), the Court of Appeal in Djukic v. Hahn, 2007 BCCA 203, 66 B.C.L.R.
(4th) 314 (at para. 14) limited Steward v. Berezan to its facts,
stating: 

…The error of the trial judge in Steward was in
awarding damages for loss of earning capacity based on the plaintiff’s
inability to work as a carpenter in circumstances where he had not worked as a
journeyman carpenter for twenty years prior to the trial and, at age 55, did not
contemplate any return to the trade.  The case turned on its facts and did
not establish any new principle of law.  Conversely here, the assessment
was based on a business actively pursued by both respondents when the accidents
intervened and not on any long abandoned occupation without a prospect of their
return to it.  I am satisfied that Steward has no application in
the case at bar. 

…

[143]    I conclude that the
approach I should take to the assessment of lost earning capacity has not
changed.  Accordingly, I must consider, with reference to the factors
listed in Brown v. Golaiy, whether the evidence establishes the basis
for an award in this case, and if so, at what level.

[188]    
Plaintiff’s counsel additionally cited Reilly v. Lynn, 2003 BCCA
49, paras. 100-101:

[100]    An award for loss of earning
capacity presents particular difficulties.  As Dickson J. (as he then was)
said, in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at
251:

We must now gaze more deeply into the crystal ball. 
What sort of a career would the accident victim have had?  What were his
prospects and potential prior to the accident?  It is not loss of earnings
but, rather, loss of earning capacity for which compensation must be made: The
Queen v. Jennings, supra. A capital asset has been lost: what was
its value?

[101]    The relevant principles may be
briefly summarized. The standard of proof in relation to future events is
simple probability, not the balance of probabilities, and hypothetical events
are to be given weight according to their relative likelihood: Athey v. Leonati,
[1996] 3 S.C.R. 458 at para. 27.  A plaintiff is entitled to compensation
for real and substantial possibilities of loss, which are to be quantified by
estimating the chance of the loss occurring: Athey v. Leonati, supra,
at para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135
(C.A.).  The valuation of the loss of earning capacity may involve a
comparison of what the plaintiff would probably have earned but for the
accident with what he will probably earn in his injured condition: Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is
not the end of the inquiry; the overall fairness and reasonableness of the
award must be considered: Rosvold v. Dunlop (2001), 84 B.C.L.R. (3d)
158, 2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995] B.C.J. No. 644
(C.A.) (Q.L.). Moreover, the task of the Court is to assess the losses, not to
calculate them mathematically: Mulholland (Guardian ad litem of) v. Riley
Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.).  Finally, since the course
of future events is unknown, allowance must be made for the contingency that
the assumptions upon which the award is based may prove to be wrong: Milina
v. Bartsch, supra, at 79.  In adjusting for contingencies, the
remarks of Dickson J. in Andrews v. Grand & Toy Alberta Ltd., supra,
at 253, are a useful guide:

First, in many respects, these contingencies implicitly are
already contained in an assessment of the projected average level of earnings
of the injured person, for one must assume that this figure is a projection
with respect to the real world of work, vicissitudes and all.  Second, not
all contingencies are adverse … Finally, in modern society there are many
public and private schemes which cushion the individual against adverse
contingencies.  Clearly, the percentage deduction which is proper will
depend on the facts of the individual case, particularly the nature of the
plaintiff’s occupation, but generally it will be small …

[emphasis
added]

[189]     In Peren
v. Lalari, 2010 BCCA 140, the Court of Appeal held at para. 12:

[12]      These cases, Steenblok,
Brown, and Kwei, illustrate the two (both correct) approaches to the
assessment of future loss of earning capacity.  One is what was later
called by Finch J.A. in Pallos the ‘real possibility’ approach.
 Such an approach may be appropriate where a demonstrated pecuniary loss
is quantifiable in a measurable way; however, even where the loss is assessable
in a measurable way (as it was in Steenblok), it remains a loss of capacity
that is being compensated.  The other approach is more appropriate where
the loss, though proven, is not measurable in a pecuniary way.  An obvious
example of the Brown approach is a young person whose career path is
uncertain.  In my view, the cases that follow do not alter these basic
propositions I have mentioned.  Nor do I consider that these cases
illustrate an inconsistency in the jurisprudence on the question of proof of
future loss of earning capacity.

[190]    
In the apt words of Huddart J.A. in Rosvold v. Dunlop, at para. 9:

[9] Because damage awards are
made as lump sums, an award for loss of future earning capacity must deal to
some extent with the unknowable. The standard of proof to be applied when
evaluating hypothetical events that may affect an award is simple probability,
not the balance of probabilities: Athey v. Leonati, [1996] 3 S.C.R. 458.
Possibilities and probabilities, chances, opportunities, and risks must all be
considered, so long as they are a real and substantial possibility and not mere
speculation.

[191]     Additionally,
as noted by defence counsel, there must be a comparison between what the
plaintiff would probably have earned to what he will earn post-accident: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.).

[192]    
As well, there must be a consideration of the overall fairness of an
award.  In Parker v. Lemmon, 2012 BCSC 27, Savage J. summarized the
steps and the ultimate approach to be considered at para. 42:

[42]      The approach to such claims is well set out in the
decision of Garson J.A. in Perren v. Lalari, 2010 BCCA 140 at
paras. 25-32, which I summarize as follows: 

(1)        A plaintiff must first prove
there is a real and substantial possibility of a future event leading to an
income loss before the Court will embark on an assessment of the loss; 

(2)        A future or hypothetical
possibility will be taken into consideration as long as it is a real and
substantial possibility and not mere speculation;

(3)        A plaintiff may be able to
prove that there is a substantial possibility of a future income loss despite
having returned to his or her employment;

(4)        An inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss;

(5)        It is not the loss of earnings
but rather the loss of earning capacity for which compensation must be made;

(6)        If the plaintiff discharges the
burden of proof, then there must be quantification of that loss;

(7)        Two available methods of
quantifying the loss are (a) an earnings approach or (b) a capital asset
approach;

(8)        An earnings approach will be
more useful when the loss is more easily measurable;

(9)        The capital asset approach will
be more useful when the loss is not easily measurable.

[193]     Plaintiff’s
counsel submits an appropriate assessment here is $100,000 for two years, taking
into account less negative contingencies.

[194]     Defence
counsel submits that no appropriate award can be made under this head of damage.

[195]     In this
case, the plaintiff was a resilient worker – when laid off he demonstrated he
could find work rapidly – notably the speed with which he started work at
Aqua-Guard following his lay-off from Air Canada.

[196]     He now
works in a management position in his desired area, the aviation industry, however,
he is not doing what he loved – being an aircraft technician.  From the evidence
in his filed income tax returns, I find there is evidence establishing he is
earning less in his present situation than as an aircraft maintenance
technician.  But the plaintiff’s own history serves as a stark reminder of the
precariousness of the airline industry.  He endured layoffs, long-distance
commuting and wrestling with the decision of whether to be an independent
contractor, in possibly less safe conditions, or to continue that work.

[197]    
I find on the evidence that when able to work and to function pain-free
as a mechanic, and the work was available, he earned more than he does as a
manager.  I also find the plaintiff to be the type of individual who would
persevere and find employment in his field, were it to be available.  However, taking
that into consideration, I must factor his stated desire to reside in the Lower
Mainland with his family for all the reasons noted above and not relocate to
where work may be.  In all the circumstances, including the significant
volatility in the airline industry, I award the plaintiff $40,000 for future
loss of earning capacity and $5,000 for past loss of earning capacity.  I am
also mindful of the fact that the plaintiff may advance in his position thus
earning more. In awarding past loss of earning capacity, I am mindful of Garson
J.A.’s comments in Ibbitson v. Cooper, 2012 BCCA 249 at para. 19 where
Garson J.A. held for the court:

[19]      While in many cases the
actual lost income will be the most reliable measure of the value of the loss
of capacity to earn income, this is not necessarily so. A hard and fast rule
that actual lost income is the only measure would result in the erosion of the
distinction made by this Court in Rowe: it is not the actual lost income
which is compensable but the lost capacity i.e. the damage to the asset. The
measure may vary where the circumstances require; evidence of the value of the
loss may take many forms (see Rowe). As was held in Rosvold v. Dunlop,
2001 BCCA 1 at para. 11, 84 B.C.L.R. (3d) 158, the overall fairness and
reasonableness of the award must be considered taking into account all the
evidence. An award for loss of earning capacity requires the assessment of
damages, not calculation according to some mathematical formula.

[198]     I find in
all the circumstances, this award compensates the plaintiff for his inability
to return to his higher-paying job of aircraft maintenance technician.

E.             
Cost of Future Care

[199]     Dr. Chemerika’s
evidence, which I accept, is that the plaintiff, during exacerbations “may need
short course of physiotherapy or massage therapy, as well as medication such as
anti-inflammatories and muscle-relaxants.  He needs to do regular active
exercises to minimize the recurrence of his injuries.”

[200]    
Dr. Gouws wrote similarly:

Mr. Rahim would benefit
from ongoing active rehabilitation in the form of a regular self-directed
exercise program. In this regard, I would recommend that he initially work
under the supervision of a kinesiologist who is well versed in the management
of individuals with chronic pain and who can help him work around his injuries.

[201]     To
determine an appropriate award for the cost of future care, the court must
objectively consider the medical evidence.  There must be both a medical
justification for the award and the claims must be reasonable: Milina v.
Bartch (1985), 49 BCLR (2d) 33 (S.C.).  They must be likely to be incurred
by the plaintiff.  Here, the plaintiff has demonstrated his use of various
modalities to help him when he suffers pain.  Such an assessment is not a
precise accounting. See Krangle (Guardian ad litem of) v. Brisco, 2002
SCC 9 at para. 21.

[202]     In all
circumstances, I award $5,000 for cost of future care.

F.             
Special Damages

[203]     For
special damages, the plaintiff is claiming $150 paid as a fee to Dr. Luay
Dindo for filling out a form for Great-West Life as well $160 for acupuncture
fees and a herbal medicine applied as a rub.  It is settled law that a person
injured in an accident by a defendant is entitled to reasonable out-of-pocket
expenses incurred as a consequence of the accident – this places them to the
extent possible, where it is reasonable to do so in the position they were
pre-accident: X. v. Y., 2011 BCSC 944 at para. 281; Milina v. Bartsch
at p. 78. I allow those claims.

XV.         
Summary

XVI.       
Costs

[204]     In the
event that counsel is unable to reach an agreement respecting costs, counsel
may within 60 days of the release of this judgment, speak to costs by advising
the Registry.

______________________
Maisonville J.