IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130625

Docket: M110296

Registry:
Vancouver

Between:

Jeffrey John
Wilson

Plaintiff

And

Honda Canada
Financial Inc.,

Harpal Kaur Goria,
and Ronald Leigh Howe

Defendants

Before: The Honourable Madam
Justice Fitzpatrick

Reasons for Judgment

Introduction

[1]            
This action involved the assessment of damages sustained by the
plaintiff, Jeffrey Wilson, arising from a motor vehicle collision on April 8,
2009. He was rear-ended by the vehicle driven by the defendant, Ronald Leigh
Howe, who immediately before had been rear-ended by the defendant Harpal Kaur
Goria’s vehicle, which was leased by the defendant Honda Canada Financial Inc.

[2]            
Mr. Wilson suffered soft tissue injuries as a result of the
accident. Liability is not in issue.

[3]            
Mr. Wilson claims damages as follows: non-pecuniary, past
wage loss, loss of earning capacity, cost of future care, and special damages.

Issues

[4]            
The most significant issue for determination is the extent and
duration of Mr. Wilson’s injuries. He says that he continues to suffer
from neck and shoulder pain and headaches, and that he requires ongoing and extensive
massage therapy to address his symptoms.

[5]            
The defence contends that Mr. Wilson was, to a large extent,
fully recovered by spring 2010 and that he would have fully recovered within
approximately two years of the accident but for his failure to mitigate his
damages by following the advice of his medical doctors. Following from that
position, the defence says that Mr. Wilson is entitled to a modest
non-pecuniary reward, wage losses while off work following the accident, and
some minor special damages.

Facts

Prior to the Accident

[6]            
Mr. Wilson was 45 years old at the time of the accident. He
has a sister and two younger brothers.

[7]            
Mr. Wilson’s father, Robert Wilson, is a retired
firefighter. Robert Wilson has also been involved in real estate over his
working career, buying and renovating houses and then purchasing apartment
buildings. He operates through his company, Taja Investments Ltd. (“Taja”). At
present, Taja owns one apartment building with 28 suites in the West End of
Vancouver.

[8]            
Robert Wilson did many tasks relating to his real estate
properties over the years, with some assistance from his firefighting colleagues.
All of his children were also involved from time to time from a young age, first
doing odd jobs and then more difficult tasks as they grew up. Mr. Wilson
has worked for Taja since he was 10 years old, assisting his father in managing
and maintaining the apartment units by performing various tasks, including
gardening, painting, electrical, plumbing, repairs, and janitorial work. Mr. Wilson
described much of this work as physically demanding.

[9]            
Mr. Wilson was very involved in athletics from a young age.
He played soccer at a very high level. After competing in national
championships in his late teens, he made some effort to become a professional
soccer player without success. He also played handball at a very high level, competing
in certain world championships in the early 1990s. He continued to play
handball at this level for a few more years until it interfered with his
employment.

[10]        
In 1993, when he was around 30 years of age, Mr. Wilson started
working as a firefighter with the City of Burnaby. There are two divisions in
the fire department: fire suppression and fire investigation. Fire suppression
is the very physical task of donning substantial equipment and attacking a fire
to put it out.

[11]        
At the time of the accident, Mr. Wilson was working as a
fire investigator having moved from fire suppression due to his asthma
condition. In this role, Mr. Wilson was required to investigate and
determine the cause and origin of fires. This involved preparing reports and
participating in scene reconstruction. He was working on a rotating schedule
involving two day-shifts, two night-shifts, followed by four days off. This
type of work was much less physically demanding. Mr. Wilson indicated that
only light lifting was required.

[12]        
In addition to his work as a firefighter, Mr. Wilson
continued to work for Taja from 1993 through his company, Billboard Enterprises
Ltd. (“Billboard”). Billboard was paid for Mr. Wilson’s labour at the rate
of $50 per hour.

[13]        
While in the fire department, Mr. Wilson continued his
athletics to some extent by competing in the World Police and
Fire Games that are held every two years. He first competed in 1995 and
then in 1997, winning gold for certain events in soccer and handball. He did
not compete in 1999 and 2001 by reason of cost and health issues. In 2003, he
attended but did not do well at that competition. He did not compete in 2005 because
of injury. In 2007, he again competed on a soccer team and won gold, but did
not compete in handball.

[14]        
Mr. Wilson was married in August 1991. He has two children,
ages 12 and 20. Mr. Wilson and his first wife separated in January 2006
and were divorced in October 2008. They have shared custody of their children.
At the time of separation, Mr. Wilson’s time with his children was
scheduled to align with his shift schedule with the fire department as set out
above.

[15]        
Starting in late 2005, due to his marital difficulties, Mr. Wilson
began to do less work for Taja. Robert Wilson tried to call on his other
children, but they did not pick up the level of work that Mr. Wilson had
done in the past. Robert Wilson then stepped in and did what he could and hired
others to assist.

[16]        
Mr. Wilson began a relationship with someone else in 2007.
Beginning in November 2008 and at the time of the accident, Mr. Wilson was
living with his girlfriend in a house they owned in Port Moody. Mr. Wilson’s
children were also staying at this house from time to time. Mr. Wilson
began working more for Taja in 2008, as will be discussed in more detail below.

[17]        
At the time of the accident, Mr. Wilson was still involved
in athletics, but at a level significantly below his earlier pursuits. He was
playing on an “over 40” soccer team and was still competing at the World Police and Fire Games every two years in both handball
and soccer, as his schedule, health and inclination dictated. In addition, he
played a weekly pickup hockey game and golf from time to time.

The Accident

[18]        
The collision occurred on April 8, 2009 around 4 p.m. on Canada
Way near Edmonds Street in Burnaby, B.C. Mr. Wilson was driving southbound
on Canada Way in the curb lane and was stopped to make a right turn. There were
a few cars in front of him. The defendant Goria, driving a 2008 Honda CRV, rear-ended
a 2005 Subaru Outback being driven by the defendant Howe. Upon impact, Howe
accidentally hit the gas, causing him to rear-end Mr. Wilson’s car.

[19]        
Mr. Wilson had no warning of the impending collision and was
not able to brace or prepare for the impact. His car was pushed ahead, but he
did not hit the vehicle in front of him. Mr. Wilson described the impact
as being sucked back into the seat and having the seat wrap around his
shoulders. He immediately felt tightness on the right side of his neck and
shoulder area. He also had a slight jarring feeling in his low back.

[20]        
Fire and ambulance personnel arrived in due course. Mr. Wilson
was checked out by the ambulance attendants. When asked, Mr. Wilson
declined to go to the hospital, although he immediately proceeded to his family
doctor’s medical clinic to have his injuries assessed.

After the Accident

[21]        
Mr. Wilson’s family physician is Dr. Keith Symon. Dr. Symon
was not at the clinic when Mr. Wilson arrived after the accident, so he saw a locum there. At that time, Mr. Wilson had pain in his
neck and upper back and a slight headache. He was told to use ice and take pain
medication to alleviate his symptoms. He was given a note to be excused from
work until April 15, 2009.

[22]        
Mr. Wilson returned to see Dr. Symon
on April 17, 2009 about continuing pain in his neck and upper back. The low
back pain had resolved soon after the accident and was no longer an issue after
that time. He was given another note to be excused from work until May 4, 2009.
He began physiotherapy sessions with Eddie Cannon at New West Orthopaedic &
Sports Medicine on April 15, 2009, which treatment he discussed with Dr. Symon
at his later visits. Mr. Wilson continued these physiotherapy treatments
on a regular basis until June 2011 and received further treatment in November
2011.

[23]        
In June 2009, Mr. Wilson was referred by Dr. Symon
for acupuncture and massage therapy. He did intramuscular stimulation treatment
for approximately four months and also received massage therapy from June to
September 2009, although he stopped the massage therapy when he thought that he
was doing too much with both physiotherapy and massage therapy.

[24]        
Mr. Wilson had ongoing headaches and pain
in his neck and upper back for the remainder of 2009. Given these complaints, Dr. Symon
supported Mr. Wilson being off work for the remainder of 2009.

[25]        
Furthermore, throughout 2009, Mr. Wilson
was not able to participate in his sporting activities. In particular, Mr. Wilson
says that he was unable to participate in the 2009 World Police and Fire Games
due to his injuries.

[26]        
In the summer of 2009, Mr. Wilson’s
relationship with his girlfriend ended for reasons unrelated to the motor
vehicle accident. They eventually sold the house they owned in November 2009.

[27]        
By September 2009, Mr. Wilson was still
having constant headaches and pain in his neck and upper back, which symptoms he
relayed to Dr. Symon. For the rest of the year, Mr. Wilson regularly
attended physiotherapy on average 12 times a month. He said that he obtained
temporary relief from this treatment.

[28]        
In November 2009, while off work from the fire
department, Mr. Wilson accepted a position to continue working as a fire
investigator under the fire prevention arm of the fire department. As a result,
his hours were changed to 10-hour shifts from Monday to Thursday, with Friday
off. He decided to change positions because as the most senior applicant, he
would receive an increase in his usual salary to that of a captain. As well,
the fire department agreed to allow him to attend his medical appointments
during his lunch hours.

[29]        
By early 2010, Mr. Wilson was continuing to
have headaches and pain in his neck and upper back. Nevertheless, in early
January 2010, Mr. Wilson embarked upon a graduated return to work program
with the fire department, returning to full duties in February 2010. Despite
his return, there were certain restrictions in his duties relating to lifting,
prolonged sitting, pushing/pulling, climbing ladders, and repetitive twisting,
turning and bending.

[30]        
While he was off work, Mr. Wilson was paid
disability benefits through the Burnaby Municipal Benefits Society (the “Society”).
The parties agree that the Society has a subrogated claim in respect of
benefits paid to Mr. Wilson to the extent that a wage loss is established during
that time.

[31]        
In February 2010, Mr. Wilson met his current wife, Debra
Avis. Ms. Avis lives and works in Calgary. They began a long-distance
relationship shortly after that time and were married in July 2011. As of the
date of the trial, they continued to have a long-distance relationship whereby
they would see each other on the weekends, with one of them flying either to
Vancouver or Calgary for visits.

[32]        
Mr. Wilson takes the position that his injuries arising from
the motor vehicle accident have been ongoing since that time. He says that the
initial massage helped with certain “trigger points” and “fascia release”, but
that his headaches and neck and shoulder pain were constant for about a year.
He says that he was approximately 70% recovered by May 2010, at which time he
was getting flare-ups and headaches. Also, he indicated that the physiotherapy
was helping minimize his “trigger points” and “fascia release”. By the summer
and fall of 2011, his symptoms had essentially plateaued and he embarked on an
extensive massage therapy program. He also exercises in a gym on a regular
basis now.

[33]        
He says that he still gets intermittent headaches and that he has
pain and instability in his neck and upper back and “trigger point flare-ups”.
He says that these symptoms are usually in conjunction with these headaches. He
says that he is slightly above a 70% recovery now. He is unable to relate any
factor that causes these symptoms, whether it be treatments, exercise, lack of
treatment or exercise, or any other activity.

Credibility and Reliability of Mr. Wilson’s Evidence

[34]        
The factors to be considered when assessing credibility 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).

[35]        
If a plaintiff’s account of his or her change in physical,
mental, or emotional state as a result of the accident is not convincing, then
the hypothesis upon which any expert opinions rest will be undermined: Samuel
v. Chrysler Credit Canada Ltd., 2007 BCCA 431 at paras. 15, 49-50.

[36]        
The defence takes serious issue with Mr. Wilson’s
credibility in relation to his evidence at trial.

[37]        
As will become apparent during my discussion of the medical
evidence, Mr. Wilson’s complaints are by and large subjective. There is
little, if any, objective evidence from the medical professionals who have
given opinions in this matter. In light of these circumstances, it is necessary
to carefully consider Mr. Wilson’s subjective evidence as to the extent of
his injuries.

[38]        
A cautious approach to assessing injuries which depend on
subjective reports of pain was discussed by McEachern C.J. in Price v.
Kostryba (1982), 70 B.C.L.R. 397 at 399 (S.C.):

In Butler v. Blaylock, decided 7th October 1981,
Vancouver No. B781505 (unreported), I referred to counsel’s argument that
a defendant is often at the mercy of a plaintiff in actions for damages for
personal injuries because complaints of pain cannot easily be disproved. I then
said:

I am not stating any new principle
when I say that the court should be exceedingly careful when there is little or
no objective evidence of continuing injury and when complaints of pain persist
for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer. But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence – which could be just his own evidence if the surrounding
circumstances are consistent – that his complaints of pain are true reflections
of a continuing injury.

[39]        
The second aspect of the defence’s challenge to Mr. Wilson’s
credibility arises from the manner in which he gave his evidence. I agree with
the defence that Mr. Wilson refused to respond to direct questions,
instead giving a speech that he thought was more favourable to his case. Further,
his direct evidence at trial concerning the level of sports that he played at
just prior to the accident certainly was crafted to and did give the impression
that he played at a very high level. On cross-examination, however, it became
apparent that, in fact, he was only playing at a “social” level.

[40]        
It was also apparent that Mr. Wilson’s discovery evidence
concerning his accomplishments at the World Police and Fire Games was simply
incorrect, and one of his incorrect answers was simply volunteered. In my view,
there was no reasonable explanation provided by Mr. Wilson as to why he
gave this incorrect evidence. I conclude that he was not particularly diligent or
careful in providing truthful answers.

[41]        
There were many other issues raised with respect to Mr. Wilson’s
evidence, particularly as it related to the medical evidence.

[42]        
Suffice it to say, I am convinced by the defence’s arguments that
there are serious issues regarding Mr. Wilson’s credibility in light of
his evidence and in the context of the overall evidence presented at the trial.
Accordingly, I approach his evidence with caution.

The Course and Nature of Mr. Wilson’s Injuries and Medical Treatment

[43]        
Given his involvement in sports and his work as a firefighter, it
is unsurprising that Mr. Wilson has had his share of injuries over the
years. In addition, as I noted above, he was diagnosed with asthma in 2001.
Nevertheless, I accept his evidence that prior to the motor vehicle accident,
he had no history of ongoing headaches and neck and right shoulder pain
consistent with the injuries he suffered as a result of the accident.

[44]        
The plaintiff must establish on a balance of probabilities that
the defendant’s negligence caused or materially contributed to an injury. The
defendant’s negligence need not be the sole cause of the injury so long as it
is part of the cause beyond the de minimis range. Further, causation
need not be determined by scientific precision: Athey v. Leonati,
[1996] 3 S.C.R. 458 at paras. 13-17.

[45]        
The primary test for causation asks: but for the defendant’s
negligence, would the plaintiff have suffered the injury? The “but for” test
recognizes that compensation for negligent conduct should only be made where a
substantial connection between the injury and the defendant’s conduct is
present: Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21-23.

[46]        
Causation must be established on a balance of probabilities
before damages are assessed. In this regard, McLachlin C.J.C. stated in Blackwater
v. Plint, 2005 SCC 58 at para. 78:

[78]      …Even though there may
be several tortious and non-tortious causes of injury, so long as the
defendant’s act is a cause of the plaintiff’s damage, the defendant is fully
liable for that damage. The rules of damages then consider what the original
position of the plaintiff would have been. The governing principle is that the
defendant need not put the plaintiff in a better position than his original
position and should not compensate the plaintiff for any damages he would have
suffered anyway: [Athey v. Leonati].

[47]        
The defence does not contest that Mr. Wilson suffered soft
tissue injuries to his neck, shoulder and back and that he experienced
headaches, all as a result of the motor vehicle accident.

The Medical Evidence

[48]        
The defence takes the position that the medical
opinion evidence tendered by Mr. Wilson does not support his claims. The
defence did not present any medical evidence, nor did it call any of Mr. Wilson’s
doctors to attend for cross-examination.

[49]        
Mr. Wilson presented opinions from his
family doctor, Dr. Symon, and three specialists, all of whom saw Mr. Wilson
at the request of his counsel, not Dr. Symon. Although there is nothing wrong
with counsel doing this, it highlights that the purpose for these further
reports was to substantiate Mr. Wilson’s claims in this action.

[50]        
It will also become apparent that Mr. Wilson
undertook an extremely extensive physiotherapy and massage therapy program
involving some 390 separate attendances for treatment between the date of the
accident and March 29, 2013. Yet no clinical records or reports from any of the
treating therapists were submitted. Nothing is known about the qualifications
of these treating therapists, although there is reference on some slips from
the massage therapists that they are registered massage therapists (“RMTs”). Unsurprisingly,
the defence challenges most of these visits.

[51]        
The defence further takes the position that none
of the doctors have identified any objective basis for Mr. Wilson’s
ongoing complaints and that their opinions fundamentally depend upon Mr. Wilson’s
truthfulness in reporting his symptoms and disabilities to them. Further, the
defence says that if Mr. Wilson’s evidence is unreliable in respect of his
reporting to the doctors, the factual foundation for their opinions is
undermined.

[52]        
Interestingly, even Mr. Wilson challenges
some aspects of these medical reports since they are inconsistent with his own
complaints and his course of treatment, which was largely self-directed.

[53]        
I will summarize the medical evidence below. These reports begin in
the spring of 2010, which follows from the period of time when it is agreed
that Mr. Wilson was suffering these symptoms and unable to work.

Dr. Robert McGraw

[54]        
Dr. McGraw, an orthopaedic surgeon, saw Mr. Wilson
once on April 22, 2010 and prepared his report dated May 7, 2010. Mr. Wilson
reported to Dr. McGraw at the time that he was continuing to experience
accident-related headaches which were getting less severe and less frequent. Mr. Wilson
was also said to report on pain in the upper neck and the base of his skull. Mr. Wilson
advised that his trapezius muscles were very tender and tight and that he had
some upper back pain.

[55]        
Dr. McGraw stated that Mr. Wilson
should return to his pre-accident condition without disability:

Cervical Spine

In the motor vehicle accident of April 8, 2009, Mr. Wilson
sustained soft tissue injuries in the cervical spine not associated with
neurological impairment or fracture. He is improving but not yet
asymptomatic. The principal problem associated with the persistent neck pain is
the potential for headache and cervicogenic headache. This has recently
shown improvement.

The long-term prognosis is good.

Thoracolumbar Spine

Mr. Wilson is experiencing only intermittent
discomfort in the upper back now. There is no low back component.

The long-term prognosis for recovery in the upper back is
good. The writer does not anticipate there will be any long-term
consequences…

Time Off Work

It is the writer’s opinion that the time taken off work
was appropriate. During the period of time off work, Mr. Wilson was
complying with the treatment program recommended by his physician. Mr. Wilson
has unique employment requirements; that is to say, he is not able to return to
his pre-accident employment if he has restrictions on activity. He has now
returned to work but does have restrictions which present a barrier to
promotion.

Causation

It is the writer’s opinion that the current complaints
referable to the neck and upper back are causally related to the motor vehicle
accident of April 8, 2009.

Long-Term Prognosis

It is the writer’s opinion that Mr. Wilson has the
potential to return to his pre-accident physical status without impairment or disability.

[Emphasis added.]

[56]        
Dr. McGraw also included his view of Mr. Wilson’s past
treatments and his recommendation for the future. He noted the “constant”
physiotherapy and massage therapy treatments that Mr. Wilson had received
since the accident. Dr. McGraw recommended that Mr. Wilson get
involved in an active exercise program conducted by a kinesiologist or personal
trainer. The objective of the program was to improve his physical condition and
teach Mr. Wilson how to deal with his episodes of pain without
pharmaceuticals. Mr. Wilson was said to be open to that recommendation. Dr. McGraw
specifically said in his report that all passive modalities should be
discontinued, by which I take it to mean that he specifically advised Mr. Wilson
that the ongoing and extensive physiotherapy sessions should stop. I also take
this to mean that he recommended against massage therapy.

[57]        
Dr. McGraw was of the opinion that after three or four months
in such an exercise program, Mr. Wilson should join a gym and continue a
self-directed exercise program. He also advised Mr. Wilson to be assessed two
to three times a year by a kinesiologist or personal trainer to ensure that the
program was appropriate and that Mr. Wilson was complying with the
program.

[58]        
Despite Dr. McGraw describing Mr. Wilson as being very
“motivated” by these recommendations, Mr. Wilson entirely rejected Dr. McGraw’s
advice. He continued taking physiotherapy sessions approximately ten times a
month during 2010, with a further eight sessions to November 2011. He did not
hire a kinesiologist or personal trainer in respect of an exercise program.

[59]        
On February 27, 2013, Dr. McGraw was asked to review further
records which indicated that despite his advice, Mr. Wilson had continued
with extensive physiotherapy and had also undertaken extensive massage therapy since
his visit. Dr. McGraw did not alter his opinions.

Dr. Keith Symon

[60]        
Dr. Symon, who practices in family
medicine, is Mr. Wilson’s family physician. He is the only doctor who had
seen Mr. Wilson for any length of time during his recovery and who
provided a report, which is dated June 6, 2011.

[61]        
Dr. Symon indicated that as of Mr. Wilson’s
last clinic visit on May 5, 2011, he was greatly improved but was experiencing
intermittent flare-ups of symptoms. Dr. Symon indicated that the long-term
prognosis for his condition was good. No permanent disability was anticipated. Dr. Symon
stated, however, that Mr. Wilson continued to experience intermittent
flare-ups of pain and some residual chronic neck pain and headaches, which
could lead to periods of temporary disability.

[62]        
In terms of treatment, Dr. Symon stated:

Mr. Wilson will need intermittent physiotherapy
treatments for the foreseeable future. He would also benefit from occasional
massage therapy, acupuncture, personal training and supervised sports
activities. He will not be a candidate for surgical intervention.

[Emphasis added.]

[63]        
It can be seen that, as with Dr. McGraw, Dr. Symon’s
diagnosis and treatment recommendation were largely predicated on Mr. Wilson’s
reports of his symptoms.

[64]        
In addition, like Dr. McGraw’s advice
regarding ongoing treatment, Mr. Wilson completely ignored Dr. Symon’s
advice. Mr. Wilson had already begun an extensive massage treatment
schedule beginning in January 2011 (against Dr. McGraw’s advice). Further,
despite Dr. Symon advising that he should obtain only “occasional”
therapies, by July 2011 he had received four treatments. This would eventually
increase to twice-weekly treatments beginning in the fall of 2011. Mr. Wilson
stated that this treatment program arose from “his view” of how he should deal with
his injuries.

[65]        
Mr. Wilson also did not hire a personal
trainer after receiving Dr. Symon’s advice. He explained that he did not
understand what a kinesiologist was and that he thought his physiotherapist had
the qualifications of a personal trainer. Both explanations belie belief.

Dr. Gordon Robinson

[66]        
Dr. Robinson is a medical doctor who
specializes in neurology. His practice is entirely devoted to the assessment
and management of patients with headache disorders. He met once with Mr. Wilson
in December 2011 and prepared his report on January 25, 2012. At that time, the
headaches were certainly intermittent since Mr. Wilson reported that he
had been essentially headache free for two months before the visit, with only a
mild headache a week before. He found:

This man was involved in a motor vehicle accident on April 8,
2009. As a result of the accident he sustained soft tissue injury to his
neck, shoulders and upper back. I do not believe that there was any damage
to his nervous system.

Headache related to his neck injury was present from the
outset. Headaches were constant for the first 6 months and could be severe.
Since that time there has been gradual improvement in head pain, and during the
last 6 months his headaches have become considerably less frequent.

He did not have a history of headache prior to the motor
vehicle accident.

I believe that his history and examination is consistent
with a diagnosis of chronic headache related to whiplash.

Although many patients may recover within weeks to months
there is a substantial number that continue to have headache and neck pain
years after the injury. Most at risk for chronic difficulties are females,
probably due to their longer, more slender neck with less developed musculature.
Other negative prognostic factors include patients who were struck without
warning, while the head was turned, the presence of a previous neck injury,
underlying degenerative neck disease and/or advanced age.

Although most patients do not have substantial benefit to
treatment such as physical therapy, massage, acupuncture and chiropractic
manipulation, he is experiencing considerable benefit with massage treatments.
I believe it reasonable for these to be continued over the next 3-6 months, and
if his improvement continues I would suggest that they gradually be tapered
off.

His prognosis for recovery is good. Even though he has had
a prolonged course there has been considerable improvement within the last 6
months. It is probable that he will become headache free over the next 3-5
years but may continue to have discomfort in his neck, right shoulder and mid
back.

For the most part his activities will return to normal.
However, the capacity to return to high-performance athletics may not be
possible given the potential lingering effects of the motor vehicle accident.

[Emphasis added.]

[67]        
Dr. Robinson was asked to provide another report based on
certain factual “clarifications” provided by Mr. Wilson’s counsel. On February
28, 2012, Dr. Robinson stated that nothing had altered his opinions.
Further, Dr. Robinson confirmed his previous opinions on February 28, 2013
after reading updated clinical records, including those from the massage
therapist, and Dr. Feldman’s report, discussed below.

Dr. Rubin Feldman

[68]        
Dr. Feldman is a medical doctor who
specializes in physical medicine and rehabilitation, with an expertise in
post-trauma rehabilitation. He saw Mr. Wilson once and prepared a report
on July 4, 2012. He thought Mr. Wilson’s prognosis would be a complete
recovery by the end of 2012:

9.         …He still had pain in the
occipital area of his head bilaterally present particularly after doing
exercise with increased movement. He also noted the presence of constant back
pain for which he was treated with Advil. He was frequently awakened at night
by pain as well, at which time he also had a sensation of stiffness in his
muscles. He never had any numbness. He did note the presence of pain also in
the upper thoracic area and provoked pain when he tried to stretch his
pectoralis muscles. He seemed to have trigger points to the right and left of
the midline in his thoracic area and from there spreading into the occipital
area of his head with radiation of this into his axillae.

16.       This man was noted to have
sustained soft tissue injuries in the subject accident which seemed to be
resolving at the time I saw him. The only abnormalities which seemed to persist
were related to the musculature in his neck.

31.       This 48-year-old man was reviewed at your request
for the purpose of providing you with the results of an independent medical
examination performed approximately three years after he had been involved in a
motor vehicle accident, the details of which have been described in this
report.

32.       His history indicated gradual improvement in
function after an initial period in which pain was constant and interfered with
his work for a period of about six months. A graduated return to work seemed to
be successful in allowing him to return to his previous employment but he still
experienced exacerbations of pain periodically on certain movement particularly
involving his neck and shoulders.

33. My examination when I saw him did
not really reveal too much in the way of abnormalities. Any abnormalities that
were seen were related to problems of movement of the neck with range of motion
being normal but muscle spasm intervening with some movements at times.

34.       Towards
the latter portion of time prior to my seeing him, he seemed to be making some
improvement and was returning to a certain amount of normal function. This
observation by other examiners together with my findings would indicate that in
fact, the prognosis for a complete return of function probably by the end of
2012 could be expected.

37. As to the diagnosis, in response to question
(5a), he had the same soft tissue injuries to the muscles of his neck and upper
back. As to prognosis, in the same question, I would suggest that the prognosis
is good for a complete recovery by the end of 2012.

38. There is no doubt that these injuries were
sustained as a result of the subject motor vehicle accident.

39.       In response to question (5b), the accident is the
only causal incident which could have caused this.

40. In response to question (c), I do not expect him
to be permanently disabled. I have also identified the length of time that he
will be temporarily disabled, suggesting that by the end of 2012 there should
be no disability.

41.       In response to question (d), he is working full
time and had begun this in January 2010. He should be able to continue this
activity with very few restrictions mainly related to possible provocation of
pain on a temporary basis.

[Emphasis added.]

[69]        
Dr. Feldman saw no problem with Mr. Wilson continuing
with his firefighting work. He believed that Mr. Wilson should continue this activity
with only a few restrictions mainly related to the possible provocation of pain
on a temporary basis. Dr. Feldman’s advice concerning ongoing
treatment was the same as that given by Dr. McGraw back in May 2010,
namely that he start a supervised exercise program followed by a self-directed
exercise program at a gym.

[70]        
Again, this advice for a supervised exercise program was rejected
by Mr. Wilson. In addition, Dr. Feldman’s prognosis of a complete recovery by the end of 2012 is disputed by Mr. Wilson,
who says that he has not recovered completely.

Conclusions Regarding Injuries

[71]        
From the foregoing, it is clear that there is no
medical evidence to support Mr. Wilson’s claim of future disability from
the time of trial. No doctor has opined on Mr. Wilson’s assertions that
his symptoms are continuing at this time.

[72]        
Indeed, all of Mr. Wilson’s self-reporting
to his medical doctors indicates that his headache and neck and shoulder pain
symptoms were intermittent by May 2010. Mr. Wilson confirmed on cross-examination
that he generally cannot tell what brings on his symptoms. Some of Mr. Wilson’s
notes of his headaches during 2011 even suggest that it was the massage
treatments that were bringing on the headaches. He further confirmed that he
can go long periods of time without any symptoms whatsoever. As stated above, Dr. Robinson
noted in January 2012 that he had had only a mild headache a week prior and
that nothing had happened before then in the two months before the visit.

[73]        
A number of lay witnesses, including his friend
Kevin Lynn, testified that Mr. Wilson talks about his pain and the therapy
when they are together. His friend, Jeffrey Bray, said that Mr. Wilson had
almost an overriding concern about his health after the accident. His brother,
Anthony Wilson, said that Mr. Wilson talked about his injuries and
indicated that he hurt and had headaches often.

[74]        
Mr. Wilson says that this evidence
indicates “surrounding circumstances” which are consistent with his assertions
of ongoing symptoms and continuing injury.

[75]        
I conclude and find as a fact the following with
respect to Mr. Wilson’s injuries:

a)    Mr. Wilson suffered soft tissue injuries to his neck, shoulder
and back areas as a result of the motor vehicle accident.

b)    Mr. Wilson’s low back injuries resolved very quickly after the
accident.

c)    
Mr. Wilson suffered from fairly constant
neck and shoulder pain and headaches for the first six months, but these
symptoms gradually became more intermittent and less severe until his return to
work in early 2010.

d)    By May 2010, Mr. Wilson’s neck and shoulder pain and headaches
were continuing on an intermittent basis, but were continuing to improve.

e)    At the time of the trial, Mr. Wilson continued to experience
pain in his neck and shoulder area and was experiencing headaches, all on a
very intermittent basis.

Mitigation of Damages

[76]        
The
defence submits that Mr. Wilson’s failure to act in accordance with the
medical advice he received constitutes a failure to mitigate and that this
failure to mitigate affects virtually Mr. Wilson’s entire claim. Specifically,
the defence says that Mr. Wilson acted contrary to Dr. McGraw’s
advice from as early as May 2010, some one year from the accident.

[77]        
A plaintiff has an obligation to take all reasonable measures to
reduce his or her damages, including undergoing treatment to alleviate or cure
injuries: Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC
1111 at para. 234.

[78]        
Once the plaintiff has proved the defendant’s liability for his
or her injuries, the defendant must prove that the plaintiff acted unreasonably
and that reasonable conduct would have reduced or eliminated the loss. Whether
the plaintiff acted reasonably is a factual question and it involves a
consideration of all of the circumstances: Gilbert v. Bottle, 2011 BCSC
1389 at para. 202.

[79]        
As described above, all of the doctors’ reports
include various recommendations with respect to ongoing treatment. Those
recommendations are largely consistent. All of the doctors, except for Dr. Robinson,
recommended a supervised exercise program of some kind. Dr. McGraw
recommended a discontinuance of passive modalities of treatment at an early
stage and an active and supervised exercise program. Dr. Symon suggested
“intermittent” physiotherapy and “occasional” massage therapy. Dr. Feldman
concurred with Dr. McGraw regarding the exercise program and made no
recommendations with respect to other therapies.

[80]        
Dr. Robinson advised that most patients do
not benefit from treatment such as physical therapy or massage therapy.
However, since Mr. Wilson said that he had “considerable benefit” from
massage treatments, it was reasonable to continue them over the next three to
six months before tapering off. The defence points out, however, that Mr. Wilson’s
evidence does not disclose any “considerable benefit” from the treatments. Rather,
he stated that he received only temporary relief.

[81]        
When Mr. Wilson reported to his massage
therapist in June 2011, his major complaint was identified as neck, shoulder
and back pain. Although he was asked to identify any other conditions,
including headaches, he did not indicate that headaches were a problem. As
noted above, in some cases in 2011, Mr. Wilson’s notes indicate that he
actually blamed the massage treatments for the onset of his headaches. I
therefore have some doubt as to the basis upon which Dr. Robinson arrived
at his opinion regarding the reasonableness of continuing with massage
treatments.

[82]        
What clearly emerges from the evidence of Mr. Wilson,
his lay witnesses and the doctors is that Mr. Wilson was and is, as his
counsel submitted to the court, “immersed in his therapy”. This therapy is
largely based on Mr. Wilson’s own views as to what treatment he needs in
order to obtain temporary relief from his symptoms. It is also based on his
clearly expressed “opinion” in terms of disagreeing with the medical advice he
received over the years since the accident.

[83]        
Mr. Wilson’s evidence concerning his
ongoing and extensive massage therapy is not supported by any evidence from his
massage therapists. I am not aware of their qualifications, although some
indicate that the services were provided by a RMT. None of the massage
therapists who have been treating him over these many years testified as to his
ongoing treatment and their observations or opinions on that course of
treatment. Mr. Wilson’s evidence was replete with references to these
massages addressing his “trigger points” and “fascia release”, but no
explanation was provided as to what these were and what they had to do with his
ongoing symptoms. In fact, at one point, Mr. Wilson indicated that his
massage therapy was directed at parts of his body that were not related at all
to his head, neck and shoulder area. Mr. Wilson indicated that these
treatments were helping him “understand this”, a puzzling phrase which, if
nothing else, indicates that Mr. Wilson is acting as his own medical
advisor.

[84]        
I have already indicated that from as early as
May 2010, Mr. Wilson has plainly ignored the medical advice he was given
and that he has continued to ignore that advice until only recently. It appears
that at a dinner party, he was convinced by another guest to undertake
treatment by a kinesiologist. He obtained Dr. Symon’s support for this and
he undertook six treatments in February and March 2013, just before the trial.
This therapy had been recommended to him by Dr. McGraw some three years
ago and was later recommended in Dr. Symon and Dr. Feldman’s reports.
It is unbelievable that Mr. Wilson was finally prepared to take such
advice from a dinner party guest in terms of his treatment, after having
ignored the same advice from his medical doctors for several years. The close
proximity of these treatments to the date of the trial also suggests that he
was trying to avoid any suggestion that he had entirely ignored the previous
medical advice.

[85]        
Mr. Wilson testified that he noticed gains
while taking the kinesiology treatments, but that he had discontinued them
because ICBC would not agree to fund the program. I find this excuse for not
proceeding with the kinesiologist program to be equally unbelievable. It
is clear that expense is not particularly an issue when Mr. Wilson is
seeking treatment. The cost per visit to the kinesiologist was
nominal ($33.60), while the massage visits, which he still continued, cost
$95.20 per visit. In fact, Mr. Wilson’s special damage claim for
massage therapy alone is over $17,000. Within that amount, he has claimed $344.50 for a couple’s massage that he (and
presumably his wife) had in Calgary in February 2011. He has also claimed over
$1,700 for massages in Hawaii at the Four Seasons Resort in Maui while on
holidays there in November 2012 and later in January 2013. One of these bills
alone totals $771.05 for a visit that included another couple’s massage,
replete with special robes and, like the others in Maui and in Calgary, a
generous gratuity.

[86]        
Dr. McGraw recommended a supervised
exercise program at his examination of Mr. Wilson on April 22, 2010. He
identified the nature of the program that was recommended (kinesiologist or
personal trainer). He indicated the duration of the program that was expected
(3-4 months, 2-3 times per week, with follow-ups 2-3 times a year). Mr. Wilson
was said to have been very motivated to pursue such a program. Dr. McGraw
also expressly advised the plaintiff to discontinue passive modalities of
treatment.

[87]        
Mr. Wilson gave further evidence to the
effect that he did not understand Dr. McGraw’s recommendations. I completely
agree with the defence’s submissions that this evidence should not be accepted.
I do not accept his contention that he did not know what a kinesiologist or a
personal trainer was, or what passive modalities of treatment were. If he was
unclear, there is no indication that he sought clarification. In addition, he
presumably discussed these same matters with both Dr. Symon and Dr. Feldman,
who recommended the same thing. He acknowledged receiving and reading all of
these reports afterward, but he did not seek any clarification if he was unsure
about what was being recommended.

[88]        
I agree with the defence that Mr. Wilson
chose to ignore Dr. McGraw’s recommendations and instead self-directed his
rehabilitation along a different path.

[89]        
Dr. Symon confirmed that Mr. Wilson
should undertake a supervised exercise program in June 2011. Nonetheless, the
plaintiff continued to act contrary to that advice. Despite that advice and Dr. Symon’s
report, Mr. Wilson maintained that Dr. Symon supported his decision
to have massage therapy two times per week seemingly without end. There is no
evidence from Dr. Symon to that effect, and I reject that Dr. Symon
advised Mr. Wilson to take that course of action.

[90]        
The defence also submits that Mr. Wilson’s damages
should be assessed on the basis that if he had properly mitigated his condition,
he would have achieved almost full recovery from his injuries and symptoms
within 18 to 24 months, with a possibility of some intermittent pain or
flare-ups thereafter.

[91]        
I accept the defence’s submissions and find that
they have met the burden of proving that Mr. Wilson has failed to mitigate
his damages. I also agree that the evidence establishes not only the failure to
follow medical advice and recommendations, but also the strong likelihood that
if Mr. Wilson had followed the recommendations he would have fully
recovered long ago. A determination of when that would have occurred can be
made by a review of the medical evidence.

[92]        
Dr. McGraw identified a three to four month
program in May 2010 when Mr. Wilson’s symptoms were only intermittent. He
clearly was of the opinion that Mr. Wilson could undertake the program and
that it would improve his symptoms to the point that Mr. Wilson would, as Dr. McGraw
put it, “return to his pre-accident physical status without impairment or
disability”. Although Dr. McGraw did not say when this recovery would be
made, I surmise that it must have been some time after the recommended program
and a certain follow-up period.

[93]        
Dr. Symon said in June 2011 only that the physiotherapy
would be needed for the “foreseeable future”, and only occasionally after that.
Of course, by that time, Mr. Wilson should have completed his program with
the kinesiologist or personal trainer. Dr. Feldman’s advice in July 2012
was to undertake the same program with the idea of a complete recovery within six
months.

[94]        
I find that if Mr. Wilson had adequately responded to the
medical advice he received and had undertaken the program recommended, he would
have been fully recovered by the summer of 2011, with the possibility of
occasional flare-ups after that time.

Damages

Non-Pecuniary Damages

[95]        
Non-pecuniary damages are awarded to compensate the plaintiff for
pain, suffering, disability, inconvenience, loss of enjoyment of life, and loss
of amenities: Dikey v. Samieian, 2008 BCSC 604 at para. 139. The
compensation awarded should be fair to all parties, and fairness is measured
against awards made in comparable cases. Such cases, though
helpful, serve only as a rough guide. Each case depends on its own unique facts:
Trites v. Penner, 2010 BCSC 882 at paras. 188-189.

[96]        
 In
Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined the
factors to be considered when assessing non-pecuniary damages:

[46]      The inexhaustive list of common factors cited in Boyd
[v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary
damages includes: 

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of
pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of
life;

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

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

(h)        impairment of physical
and mental abilities;

(i)         loss of lifestyle; and

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

[97]        
The assessment of non-pecuniary damages is necessarily influenced
by the individual plaintiff’s personal experiences in dealing with his injuries
and their consequences, and the plaintiff’s ability to articulate that
experience: Dilello v. Montgomery, 2005 BCCA 56 at para. 25.

[98]        
Mr. Wilson is now 49 years of age. He suffered soft tissue
injuries, which I have outlined above. I have also outlined my findings on the
severity and duration of his symptoms.

[99]        
Mr. Wilson was off work with disabling neck and shoulder
pain and headaches for approximately 10 months after the accident, returning to
work in January 2010. During that time, Mr. Wilson had to curtail his
sports activities, which included playing soccer and occasionally golf and
hockey. He was unable to participate in the 2009 and 2011 World Police and Fire
Games. Mr. Wilson was also unable to act as the head coach for his son’s
soccer team in September 2009, although he switched to being the assistant
coach.

[100]    
The inability to play sports was perhaps the most significant
impact advanced by Mr. Wilson in support of an award of non-pecuniary
damages. I accept that his injuries curtailed his activities for some period
and that they would have continued to curtail them until the summer of 2011 and
perhaps occasionally afterwards. After that time, Mr. Wilson has only
himself to blame for the lack of progress in his symptoms. In any event, I
would again note that despite Mr. Wilson’s direct evidence, and despite
what he told Dr. McGraw, he was not playing sports at an “elite” level
prior to the accident. He was only playing in a recreational soccer league and
had the occasional hockey and golf game with friends and family. I expect that
if Mr. Wilson begins to follow the medical advice at some point, he will
return to these activities.

[101]    
The lay witnesses, including his father, Robert Wilson, testified
that Mr. Wilson is not as “happy go lucky” after the
accident. Mr. Wilson’s brother, Anthony Wilson, said their relationship
had changed after the accident, but I consider that their relationship changed by
reason of time and different priorities arising in each person’s life. There is
a normal shift in relationships over time.

[102]    
I have already indicated that Mr. Wilson’s friends,
Mr. Lynn and Mr. Bray, while commenting on his generally positive
disposition, say that he is less gregarious and outgoing and that he is quite
focused on his health. I have no doubt as to the latter, but for the reasons
articulated above in respect of mitigation, I consider that Mr. Wilson is
unduly focused on his own ideas about his health and ways to recovery ‒ all to the point that he has ignored medical advice and has instead
embarked on his own “journey”, as he calls it, in dealing with his medical
symptoms. In any event, it appears that Mr. Wilson continued with social
activities with his friends as before, except for a game of golf with Mr. Bray
which had to be cut short when Mr. Wilson had a headache.

[103]    
There was no evidence that the injury negatively
affected his relationships with his girlfriend or Ms. Avis, his new wife.
In fact, it appears that Ms. Avis occasionally enjoys having a massage at
the same time that Mr. Wilson does.

[104]    
There is also no evidence that his injuries
affected his work in the fire department. He was able to return after
approximately 10 months and because of the seniority system in place, he was
able to continue in a position that afforded him the same benefits and
opportunities as before.

[105]    
As for his lifestyle, Mr. Wilson had
presented no evidence that the accident negatively affected that aspect of his
life. He continued to travel quite extensively without difficulty, including to
South America, Calgary and Hawaii.

[106]    
Mr. Wilson cites three cases in support of an award of
$125,000, as being within a range of $112,000 and $145,000 for chronic soft
tissue injuries to the neck and back that are accompanied by headaches.

[107]    
In Parfitt v. Mayes et al, 2006 BCSC 125, the 17-year-old plaintiff
was injured in an October 24, 2000 motor vehicle collision. She was a “type A
personality” and participated in athletic and sports endeavors, both
recreational and organized. She was in excellent health, fit, and conditioned.
The collision caused a severe whiplash injury to her neck and a moderate to
severe strain of her lower back. The plaintiff experienced initial headaches,
neck pain, and back pain. Her injuries improved, but she was left with ongoing
pain. Some five years later, she continued to suffer from headaches caused by
muscle tension. The court found that the plaintiff’s migraine headaches were not
caused by the collision and that the plaintiff would not have any permanent
disability as a result of the injuries from the collision. Non-pecuniary damages
were awarded at $120,000.

[108]    
In Knauf v. Chao, 2009 BCCA 605, the 35-year-old
female accounts payable clerk and part-time server suffered injuries as a
result of two motor vehicle collisions which occurred in the fall of 2002,
within two months of each other. Prior to the collisions, the plaintiff was
active and played badminton, skied, ran, and dragon boated. In the first collision,
the plaintiff suffered severe neck and back pain, restriction of motion in her
neck, and headaches. The second accident aggravated these injuries. The
plaintiff did not miss work as a clerk, but she quit her job as a server. The
plaintiff was unable to participate in recreational activities for
approximately six months. Although the plaintiff’s symptoms improved, she
continued to suffer from ongoing pain and stiffness. These ongoing symptoms were
not expected to resolve. The jury awarded $235,000 for non-pecuniary damages.
This was reduced on appeal to $135,000.

[109]    
In Zen v. Readhead, 2011 BCSC 190, the 40-year-old male
business owner suffered injuries as a result of a 2005 motor vehicle collision.
The plaintiff suffered soft tissue injuries and pain in his lower back, pelvis,
and elbow, along with ongoing headaches, sleep disturbance, mood disturbance,
dizziness, and some minor cognitive effects. The plaintiff’s ability to be
productive in his business was negatively impacted. Prior to the collision, the
plaintiff participated extensively in athletics and was described as an
“exercise junkie”. Following the collision, the plaintiff was no longer able to
do so. His relationship with his family also suffered. Although many of his
injuries resolved, the plaintiff experienced chronic pain, which resulted in
impaired sleep, dizziness, depressed mood, back pain, and headaches. Non-pecuniary
damages were awarded at $110,000.

[110]     The defence submits that an appropriate award for non-pecuniary
damages is $40,000.00, citing:

a)   
Wilkinson
v. Whitlock,
2011 BCSC 1781: The plaintiff suffered a mild to moderate soft tissue injury to
her lower back. It was painful for six months and plateaued at the time of
trial. Her injuries affected her recreational activities and her ability to do
chores and renovations. The plaintiff failed to mitigate damages with treatment
programs, and the court found that a fitness program would improve function.
The award was $40,000.

b)   
Eng v.
Titov,
2012 BCSC 300: The plaintiff suffered soft tissue injuries to his neck and
shoulders and had headaches. These injuries were symptomatic three years after
accident, with chronic pain and headaches about once per month. His injuries
affected his day-to-day activities and his work. The court awarded $40,000.

c)    
Rozendaal
v. Landingin,
2013 BCSC 24: The first accident caused neck and shoulder pain and headaches. The
second accident four months later exacerbated these symptoms. The symptoms had
not resolved by the time of trial. They affected the plaintiff’s recreational
activities and her family and social life. The award was $40,000.

d)   
Bissonette
v. Horn,
2012 BCSC 518: The plaintiff suffered injuries such as an injured finger and
broken tooth and headaches which were resolved after the accident. She also
suffered left leg or hip and lower back pain, which had diminished following
the accident but remained symptomatic at trial some four and a half years
afterward. Her injuries continued to affect her work, recreation and sleep. The
prognosis was guarded. The award was $50,000.

[111]    
I consider that the cases cited by Mr. Wilson involve
injuries far more severe than those suffered by Mr. Wilson in this case.
The cases cited by the defence are more in line with Mr. Wilson’s injuries
and the expected course of recovery if Mr. Wilson had mitigated his
damages in accordance with his medical advisors’ advice. Even accepting his
evidence of occasional headaches and neck pain at this time, I do not accept
that these symptoms are interfering with his working or social life to the
extent of the plaintiffs cited in his cases.

[112]    
I award the sum of $40,000 for non-pecuniary damages.

Past Wage Loss

[113]    
Compensation for past wage loss is based on what the plaintiff
would have, not could have, earned but for the injury that was sustained: Rowe
v. Bobell Express Ltd., 2005 BCCA 141; M.B. v. British Columbia,
2003 SCC 53.

[114]    
Pursuant to s. 98 of the Insurance (Vehicle) Act,
R.S.B.C. 1996, c. 231, a plaintiff is entitled to recover damages for only
his or her past net income loss. This means that, in the ordinary course, the
court must deduct the amount of income tax payable from lost gross earnings:
Hudniuk v. Warkentin, 2003 BCSC 62.

[115]    
Although actual past events must be proved on a balance of
probabilities, an assessment of loss of both past and future earning capacity involves
a consideration of hypothetical events. Therefore, the plaintiff is not
required to prove these hypothetical events on a balance of probabilities. The
future or hypothetical possibility will be taken into consideration as long as
it is a real and substantial possibility and not mere speculation: Athey v.
Leonati at para. 27.

[116]    
There is no issue between the parties concerning the wage loss
suffered by Mr. Wilson due to his injuries in relation to his firefighting
position and his base salary arising from that position. From April 2009 until
January 2010 his gross earnings were $53,074. Additional wages of approximately
$4,300 were lost during the gradual return to work program. It is agreed that
the net benefits paid by the Society during both time frames is $47,076.66.

[117]    
The only issue between the parties arose in relation to the
further amounts that Mr. Wilson says he would have been paid while acting
as a captain during that period of time. It is agreed that he did act as a
captain occasionally. Mr. Wilson submits that his base salary should be
increased by 15% to reflect the approximate period of time in which he would
have been acting as a captain and therefore, entitled to the increased wage. However,
there is no evidentiary basis for the proposed 15%.

[118]    
In contrast, the defence has referred to Mr. Wilson’s actual
experience as to how often he worked at this higher wage rate just before the
accident. In my view, this is a much more supportable method by which to
calculate these further amounts. In contrast to Mr. Wilson’s approach, it
is grounded in the evidence. Based on this approach, Mr. Wilson worked 163
hours of a total of 504 hours, or approximately 32.3% of the time, as a captain.
Multiplying this number by the hourly increase of $4.167 and the total hours
worked, being 1,659 hours, yields a gross figure of $2,235. The parties can
calculate the net amount owing from this gross amount.

[119]    
Accordingly, Mr. Wilson’s wage loss in relation to his
firefighting position is $47,076.66, together with the net amount from a gross wage
loss of $2,235.

[120]    
Mr. Wilson also claims that as a result of the accident, he
was unable to work for Taja. From the outset of the trial, it was repeated that
this was Mr. Wilson’s major claim.

[121]    
I have already indicated that Robert Wilson’s company, Taja,
owned and operated various apartment buildings and other units around the Lower
Mainland over the course of his firefighting career. All of Robert Wilson’s children
were involved in the business and learned various jobs from time to time. In
particular, Mr. Wilson did various maintenance and repair work on the
apartments and the building itself. The work done by Mr. Wilson
involved tasks such as plumbing (fixing small leaks, chasing leaks,
snaking pipes, changing toilets), electrical (changing lights, installing fans,
changing switches and outlets), painting (rooms, parking stall lines), tiling,
landscaping/gardening (stump removal, lawn care, pressure washing), window
cleaning, roofing, moving and changing appliances, garbage duty, and flooring. Much
of the work was physically demanding.

[122]    
In the years prior to the accident, Mr. Wilson reported the
following gross / net business income arising from his work for Taja through
Billboard, as follows: 2000: $37,550 / $19,394; 2001: $37,022 / $9,933; 2002:
$34,095 / $15,221; 2003: $47,066 / $29,551; 2004: $47,060 / $37,061; 2005:
$52,042 / $42,488. He later abandoned doing work through Billboard and
performed the work under his personal name. The gross / net figures after that
date are as follows: 2006: $9,500 / $9,500; 2007: $4,120 / $3,700; 2008:
$24,315 / $19,062.

[123]    
Robert Wilson says that Mr. Wilson did the most work for
Taja. In his words, his other children helped from time to time, but they “had
their own lives”.

[124]    
The explanation for the lower income levels commencing in 2006 is
that Mr. Wilson was spending more time dealing with his marital situation
following his separation from his first wife. Robert Wilson says, however, that
once those difficulties were sorted out, his son started to work more for Taja
in 2008. Robert Wilson says that in the period of time leading up to the
accident, Mr. Wilson could work as much as he wanted.

[125]    
There is also a three-month period in early 2009 just before the
accident where no time was spent by Mr. Wilson on Taja matters. Mr. Wilson
contends that this was as a result of him completing certain renovations to the
house that he and his girlfriend had purchased in November 2008. This evidence
is supported by his father’s evidence.

[126]    
Since the accident, Mr. Wilson has not worked for Taja
except for the odd occasion when his father needed something done and his
brothers were not available. On those occasions, Robert Wilson has asked Mr. Wilson
to collect the rent, do some banking, and show apartments. Robert Wilson
confirms, however, that Mr. Wilson has not done anything physically demanding
for Taja from the time of the accident.

[127]    
It is Mr. Wilson’s contention that but for the injuries
arising from the accident, he would have worked, at a minimum, one day per week
on Fridays for Taja. At eight hours a day at $50 an hour, this would have
generated a gross income of $20,000 per year. This is said to be a conservative
estimate given that Mr. Wilson was still on shift work up until the time
that he obtained his new position in January 2010, which would have allowed him
even more time to complete work for Taja.

[128]    
Robert Wilson produced a list of expenses incurred by Taja from
2009 to 2013 totaling $151,071.81, representing amounts paid to third-party
providers. These items would have included such things as venetian blind
repair, painting, janitorial work, tile repair, general repair work, and
collecting rents and deposits. Robert Wilson estimated that Mr. Wilson
would have had approximately 90% of this work available should he have wanted
it. The defence was unable to challenge the accuracy of this evidence because
this was a specific list prepared by Robert Wilson and Mr. Wilson for the
purpose of this litigation. There was little backup documentation to support
any of these listed expenses or any other expenses incurred by Taja during this
period of time. At no time did Taja produce any income statements other than
the ones ending December 31, 2008 and 2009, and even those years indicated that
the amounts billed by Mr. Wilson to Taja represented a smaller percentage
than 90%. Further, the backup documentation given by Mr. Wilson to Taja or
recorded by Taja as to work done by Mr. Wilson before the accident was not
provided. This documentation might have indicated, at the very least, the split
between labour and supplies for amounts previously paid by Taja to Mr. Wilson.

[129]    
From 2000 to 2005, Billboard earned an average annual net income
of $25,608. In 2008, when Mr. Wilson returned to Taja, he earned $19,062
in net business income. Mr. Wilson therefore submits that a minimum loss
of $20,000 per year is consistent with the evidence and with his past
performance.

[130]    
However, a comparison of this yearly amount to Mr. Wilson’s
2008 tax return indicates that this is not a direct comparison. When Mr. Wilson
filed his 2008 return, he claimed business expenses of $5,253, which expenses
related to business tax, fees and licenses, telephone, utilities, and delivery
freight and express. No amount was claimed for supplies. There is no evidence of
what his business expenses would have been from 2009 to 2013 that would enable
a calculation of the net income figure that is the appropriate figure from
which to start.

[131]    
Accordingly, Mr. Wilson’s analysis and calculations can only
be described as “rough and ready”. He says that in the four years since the
collision, he has lost, at minimum, $80,000 gross income from Taja. From that
figure, he applies a notional 25% discount for taxes and the potential for work
beyond eight hours per week to arrive at a net income loss of $60,000.

[132]    
Aside from the calculation difficulties with
this claim, there are also difficulties in light of Mr. Wilson’s assertion
that he otherwise would have worked for Taja in the period following the
accident if he had not been injured.

[133]    
Mr. Wilson returned to his fire-fighting
job on January 20, 2010 with certain restrictions. Even after his return to
full-time duties, various restrictions remained, particularly relating to heavy
lifting. Dr. McGraw’s May 2010 report specifically noted the restrictions
that were put in place upon his return to work. Dr. Symon was, of course,
well aware of the fact that he was off work, the basis upon which he returned
to work and the restrictions on his work duties. Similarly, Dr. Robinson
in his January 2012 report commented on his back to work program and the
restrictions Mr. Wilson was under. Finally, Dr. Feldman in his July
2012 report commented on Mr. Wilson’s history in terms of his work and his
return to work.

[134]    
Despite the ongoing treatment being provided by Dr. Symon
over these last four years, at no time did Dr. Symon mention in his report
anything about Mr. Wilson’s past employment with Taja or any restrictions
that he felt might be appropriate in respect of that type of employment. There
is absolutely no mention of Taja at all in Dr. Symon’s report.

[135]    
Similarly, there is absolutely nothing in the
reports of Dr. McGraw, Dr. Robinson or Dr. Feldman commenting on
any aspect of Mr. Wilson’s previous employment with Taja or whether Mr. Wilson
was able to continue with that type of employment.

[136]    
Mr. Wilson
specifically obtained these reports for the purpose of this litigation. He
would have known that he would be advancing a wage loss claim (and loss of
capacity claim) relating to Taja. In those circumstances, it is inexplicable
that he would not have mentioned that his injuries were impacting his ability
to work for Taja if he was truly suffering a loss in that respect. The defence
submits and I agree that the only inference to be drawn is that he did not
raise it with the medical professionals because it was not an issue to him
given his life circumstances. Regardless of his injuries, he was not in a
position to do work or had chosen not to do work for Taja.

[137]    
Mr. Wilson’s evidence was that he considered
that the same restrictions on his work duties at the fire department would
apply to his work for Taja. I accept that Mr. Wilson believes that he has
been physically unable to work for Taja since the time of the accident. However,
a plaintiff’s own perception is not sufficient at law to support a finding of
disability. Some expert medical evidence is always necessary to assist the
court: Eddie
v. Unum Life Insurance Co.,
1999 BCCA 507 at para. 86.

[138]    
Moreover, one of the questions that was raised,
yet remained unanswered based on the evidence, was why Mr. Wilson did not
complete other less physically challenging tasks for Taja that were equally
available to him. Mr. Wilson gave evidence on his direct examination that
this was a family business and that it was his intention to take over this
business for the benefit of the family once his father, now 76 years of age,
retired. His brother, Anthony Wilson, confirmed this evidence. In that case,
why would Mr. Wilson not remain as involved as he possibly could?

[139]    
Mr. Wilson did not obtain any functional
capacity evaluation to address the issue of what work, if any, he could
complete for Taja. No reason was advanced for the lack of this evidence.

[140]    
There are also other circumstances that put in
doubt Mr. Wilson’s contention that he would have been ready, willing and
able to undertake work for Taja but for the accident. It is agreed that in the
years following his separation and divorce, he was less available to do work
for Taja. By 2007, he began a relationship with his girlfriend, which even by
his evidence still meant that he was principally caring for his children when
he had custody of them. This became an even starker reality when the
relationship with his girlfriend foundered in the summer of 2009 and he was put
to the task of arranging new living arrangements. No one could challenge the
proposition that extra demands are put on a parent where there are shared
custody arrangements. That would include getting children to and from school
and perhaps other activities on Fridays. And there can be no doubt that Mr. Wilson
would have had such demands on his time even after the accident that would have
trumped any available time that he could have spent working for Taja.

[141]    
Furthermore, when Mr. Wilson met his
current wife in February 2010, they almost immediately began a long-distance
relationship. That meant flying back and forth between Vancouver and Calgary,
which would have meant flying on Friday.

[142]    
In addition, aside from the occasional
collecting of rents, there is no evidence that Mr. Wilson even tried to
return to work for Taja. Such attempts would have been of some assistance in
determining whether he was precluded from completing all Taja tasks because of
his injuries.

[143]    
The defence also raises the fact that Mr. Wilson
may not be financially motivated to complete this extra work for Taja, given
that his new wife earns a substantial income. Although Mr. Wilson in his
own evidence indicated that he was financially motivated to work for Taja, this
remains a factor to be considered in assessing his true motivations.

[144]     Perhaps the most telling evidence on this point arises from Mr. Wilson’s
examination for discovery in November 2011, about two and a half years after
the accident:

509      Q         … your free time is
spent, a large amount of it, in Calgary with   your new wife, right?

 A          How do arrive at
that?

510      Q         Well, you’ve told me
you go to Calgary two or three times a month.

 A          Yeah. So my free
time also constitute any time after work, correct? So I generally have to
raise my children, as I have a full-time child living with me. I do come home
at 6 p.m., cook dinner like every other parent, make lunches, read them
stories, do homework with them. The only time I go away is on weekends when
I don’t have the kids and there’s not something that keeps me here for the
kids, because Michelle can handle the situation.

511      Q         All
right. My point is that you’re not actually available to work for your dad’s
company because you have other obligations now.

 A          Right
now I’ve made new choices, that’s correct.

738      Q And
do you foresee yourself returning to doing any of that work, or do you feel you’ve
made other choices now?

 A
It depends — it depends how long he wants to keep the building. I
mean, right now I don’t foresee myself in the short term returning because
of the choices that I’ve made. But if he wishes to keep the business going
in the future, there could be an opportunity for me, if I choose, and that may
depend on if my wife comes here and/or if —

739      Q         You take retirement?

 A          —
after retirement. You know, that possibility is — it will still be there.

[Emphasis
added.]

[145]    
I conclude and find as a fact that Mr. Wilson
was able to work for Taja, but that he made other “choices” as to how he wanted
to spend his time.

[146]    
Further, Mr. Wilson has not satisfied the
burden to prove that he had any disability preventing him from working for Taja
at any point in time. Even if I had accepted that Mr. Wilson had some
current disability, I find that he has failed to provide the necessary evidence
upon which the court could base an award for past wage loss.

Loss of Future Earning Capacity

[147]    
A claim for loss of future earning capacity raises two key
questions: 1) has the plaintiff’s earning capacity been impaired by his or her
injuries; and 2) if so, what compensation should be awarded for the resulting
financial harm that will accrue over time? The appropriate means of assessment
will vary from case to case: Brown v. Golaiy (1985), 26 B.C.L.R.
(3d) 353 (S.C.); Pallos v. Insurance Corp. of British Columbia (1995),
100 B.C.L.R. (2d) 260 (C.A.); Pett v. Pett, 2009 BCCA 232.

[148]    
Insofar as it is possible, the plaintiff should be put in the
position he or she would have been in but for the injuries caused by the
defendant’s negligence: Lines v. W & D Logging Co. Ltd., 2009
BCCA 106 at para. 185. The essential task of the court is to compare the
likely future of the plaintiff’s working life if the accident had not happened
with the plaintiff’s likely future working life after the accident has happened:
Gregory v. Insurance Corporation of British Columbia, 2011 BCCA
144 at para. 32.

[149]    
The plaintiff must always prove that there is a real and
substantial possibility of a future event leading to an income loss: Perren
v. Lalari, 2010 BCCA 140 at para. 32. If that burden is met, then there
are two possible approaches to assessing the loss of future earning capacity:
the “earnings approach” from Pallos; and the “capital asset approach” in
Brown. Both approaches are correct and will be more or less appropriate
depending on whether the loss in question can be quantified in a measureable
way: Perren at para. 32.

[150]    
The earnings approach involves a form of math-oriented
methodology such as (i) postulating a minimum annual income loss for the
plaintiff’s remaining years of work, multiplying the annual projected loss by
the number of remaining years, and calculating a present value, or (ii)
awarding the plaintiff’s entire annual income for a year or two: Pallos;
Gilbert at para. 233.

[151]    
The capital asset approach involves considering factors such as
whether the plaintiff: (i) has been rendered less capable overall of earning
income from all types of employment; (ii) is less marketable or attractive as a
potential employee; (iii) has lost the ability to take advantage of all job
opportunities that might otherwise have been open; and (iv) is less valuable to
herself as a person capable of earning income in a competitive labour market: Brown;
Gilbert at para. 233.

[152]     The
principles that apply in assessing loss of future earning capacity were
summarized by Low J.A. in Reilly v. Lynn, 2003 BCCA 49 at para. 101:

[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.

[153]     Recently,
in Parker v. Lemmon, 2012 BCSC 27, Mr. Justice Savage summarized
the principles from Perrin to be applied:

[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.

[154]    
Mr. Wilson advanced this claim not in relation to his
firefighting position, which is secure, but in relation to his contention that
he would have worked for Taja but for his injuries suffered in the accident.

[155]    
In large part, Mr. Wilson’s contention is based on his
argument that he continues to suffer chronic soft tissue pain in his neck and
upper back together with headaches. He cites three cases in support: Bancroft-Wilson
v. Murphy, 2008 BCSC 1035, aff’d 2009 BCCA 195, Pratt v. Barlow,
2008 BCSC 1764, and Driscoll v. Desharnais, 2009 BCSC 306. In all these
cases, the plaintiffs had chronic pain or headaches or both. The plaintiff in Bancroft-Wilson
presented evidence that his injuries were not likely to be permanently
disabling, and the doctors predicted that there would be substantial
improvements, if not full recovery, within three to five years.

[156]    
Mr. Wilson claims the amount of $100,000 under this head of
damages on the basis that it reflects five years of earnings from Taja,
assuming again that Mr. Wilson would work a minimum of one day per week.

[157]    
The difficulty with this argument arises from the same
circumstances in relation to past wage loss. That is, there is absolutely no
medical evidence to suggest that Mr. Wilson is unable to complete any of
the tasks that might arise from his work for Taja, including physical ones.
Again, Mr. Wilson relies upon his own assessment of his abilities. In all
the cases cited by Mr. Wilson, the court relied on medical evidence in
support of its finding that there was both a disability and a substantial
possibility that the disability would result in a future income loss.

[158]    
As outlined above, Dr. McGraw’s medical evidence indicated
that in May 2010, he anticipated that Mr. Wilson would make a full
recovery. Dr. Feldman also considered that Mr. Wilson would make a
full recovery within six months by the end of 2012, although that was in
conjunction with the recommended treatment program, which Mr. Wilson had
not been undertaking to that time.

[159]    
The only medical evidence that Mr. Wilson relies on is that
of Dr. Robinson, who said that he anticipated that Mr. Wilson would
become headache free over the next three to five years and that he may continue
to have discomfort in his neck, right shoulder and mid back. However, Dr. Robinson
gave no opinion that, even assuming that Mr. Wilson continued to have
headaches and discomfort from time to time over the next three to five years,
this would be disabling to the point of Mr. Wilson being unable to
complete any tasks for Taja. People have headaches and discomfort all the time.
In most cases, people take some medication and otherwise get on with their
lives, including going to work. I am not prepared to simply assume that Mr. Wilson’s
headaches and discomfort would have negatively affected his ability to work.

[160]    
Unlike here, in Wilson-Bancroft, the headaches were
generally described as “debilitating”, which clearly was a factor that would
have affected the plaintiff’s ability to work.

[161]    
Further, I have found that Mr. Wilson failed to mitigate his
losses by ignoring the medical advice he received as to an appropriate course
of treatment. I have found that but for his failure to undertake the
recommended program, he would have achieved a full recovery by summer 2011.

[162]    
Finally, I have found that Mr. Wilson made a deliberate
choice not to pursue work with Taja as a result of other things going on in his
life, including his children, his new wife, his new job, and his obsession with
his self-prescribed treatment program. I acknowledge that it appeared to be
Robert Wilson’s wish to pass this business along to his children and that Mr. Wilson
appeared to be a likely candidate to take that over. Nevertheless, even
accepting that Mr. Wilson needs further time to recover from his injuries,
it has not been shown that this decision is likely to be made by Mr. Wilson
in the time before he achieves full recovery.

[163]    
I find that Mr. Wilson has failed to establish a substantial
possibility that he will suffer income loss in the future in relation to Taja
as a result of his injuries.

Costs of Future Care

[164]    
The plaintiff is entitled to compensation for the cost of future
care based on what is reasonably necessary to restore him to his pre-accident
condition insofar as that is possible. When full restoration cannot be
achieved, the court must strive to assure full compensation through the
provision of adequate future care. The award is to be based on what is reasonably
necessary on the medical evidence to preserve and promote the plaintiff’s
mental and physical health: Milina v. Bartsch (1985), 49 B.C.L.R. (2d)
33 (S.C.); Williams v. Low, 2000 BCSC 345; Spehar et al. v. Beazley
et al., 2002 BCSC 1104, aff’d 2004 BCCA 290.

[165]    
The test for determining the appropriate award under the heading
of cost of future care is an objective one based on medical evidence. For an
award of future care: 1) there must be a medical justification
for claims for cost of future care; and 2) the claims must be reasonable: Milina
v. Bartsch at 84.

[166]    
Future care costs must be justified because they are both
medically necessary and likely to be incurred by the plaintiff. The award of
damages is thus a matter of prediction as to what will happen in the future. If
a plaintiff has not used a particular item or service in the past, it may be
inappropriate to include its cost in a future care award: Izony v. Weidlich,
2006 BCSC 1315 at para. 74.

[167]    
The extent, if any, to which a future care costs award should be
adjusted for contingencies depends on the specific care needs of the plaintiff.
In some cases, negative contingencies are offset by positive contingencies and a
contingency adjustment is not required. In other cases, however, the award is
reduced based on the prospect of improvement in the plaintiff’s condition or
increased based on the prospect that additional care will be required.

[168]    
Overall, an assessment of damages for cost of future care is not
a precise accounting exercise: Krangle (Guardian ad litem of) v. Brisco,
2002 SCC 9 at para. 21. Each case falls to be determined on its particular
facts: Gilbert at para. 253.

[169]    
Mr. Wilson’s claim for future care relates solely to his
ongoing and extensive massage therapy treatment. He is presently obtaining treatments
twice a week. At $95.20 per visit, this results in an annual cost of $9,900.
Accordingly, he seeks an award in the amount of $30,000, principally on the
basis of Dr. Robinson’s opinion, which anticipated that he would become
headache free over the next three to five years.

[170]    
Dr. Robinson’s report was authored in January 2012. He
considered that it was reasonable for Mr. Wilson to continue with his
massage therapy over the next three to six months. However, he did not comment
on how frequent those treatments should be. Nor did Dr. Robinson change
his opinion concerning Mr. Wilson’s treatments in February 2013, despite
having reviewed the clinical records of the massage therapists to July 2012 (by
which time he anticipated that these treatments would have stopped).

[171]    
Accordingly, I reject Mr. Wilson’s claim for the massage
treatments that he proposes for the future. There is no medical evidence to
support such an ongoing claim. Furthermore, even leaving aside the mitigation
issues discussed above, there is nothing to justify this as a reasonable claim.
On the face of it, Mr. Wilson’s massage program is excessive and is driven
more by his personal and abiding interest in these massage treatment sessions,
which he (not his doctors) prescribed as the appropriate treatment program.

[172]    
I have already referred to the opinions of Dr. McGraw, Dr. Symon
and Dr. Feldman, who all recommended a supervised exercise program. Mr. Wilson
did undertake the start of such a program earlier this year, attending five
treatments with a kinesiologist for total cost of $160. Mr. Wilson may
benefit from continuing such therapy, since it was originally recommended by
his doctors some years ago. Relying on Dr. McGraw’s recommendation for the
exercise program, and using Mr. Wilson’s previous costs incurred for the
program in early 2013, I award the sum of $2,000 so that he might undertake
such a program.

Special Damages

[173]    
It is well established that an injured person is entitled to
recover the reasonable out-of-pocket expenses they incurred as a result of an
accident. This is grounded in the fundamental governing principle that an
injured person is to be restored to the position he or she would have been in
had the accident not occurred: X. v. Y., 2011 BCSC 944 at para. 281;
Milina v. Bartsch at 78.

[174]     Mr. Wilson
says his expenses were reasonable and medically justified, relying on Mitchell
v. We Care Health Services Inc. et al., 2004 BCSC 902:

[33]      The general approach to special damages is based on
the same principles as the approach to loss of earning capacity and cost of
future care. The plaintiff “is to be restored to the position he would have
been in had the accident not occurred, insofar as this can be done with money”: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at 78, aff’d (1987),
49 B.C.L.R. (2d) 99 (C.A.).

[34]      A court should award special damages if the expense
incurred was reasonably necessary. In Brennan v. Singh, [1999] B.C.J. No. 520 (S.C.)
(QL), the defendants argued that the test for determining whether the cost of
care was appropriate was “medical necessity”. Mr. Justice Harvey pointed
out that this standard was rejected in Zapf v. Muckalt (1996),
26 B.C.L.R. (3d) 201 (C.A.) as being too stringent. The Court of Appeal
preferred a reasonableness test. The court in Zapf made its
comments in the context of housing costs but Mr. Justice Harvey concluded
that this approach should be applicable to other components of care as well.
After having reviewed Milina and Mann v. MacCaig-Ross,
[1998] B.C.J. No. 592 (S.C.) (QL), Mr. Justice Harvey formulated
the test for special damages in this way at para. 91:

[I]t is what a reasonably minded person of ample means would
be prepared to incur as an expense; and cannot in the remotest sense be considered
a squandering of money; and for which there is a medical basis.

[175]    
Mr. Wilson claims $31,895.52, representing the total of
$37,143.22 less the amount of $5,247.70 already paid by ICBC. The totals
initially claimed are as follows:

a)    Physiotherapy:
$6,725.25 (representing treatments from April 2009 to November 2011);

b)    Massage therapy:
$17,286.60 (representing treatments from June 2009 to September 2009, and from
January 2011 to March 2013);

c)     Miscellaneous:
$7,487.69 (representing various physical therapy items such as ice packs, foam
rollers, Pilates treatment, kinesiology treatments and finally, moving expenses
in the amounts of $2000 in July 2010 and $4,700 in September 2011); and

d)    Mileage expense
to attend treatments: $5,643.68.

[176]     I
start again from the proposition that Mr. Wilson has indeed embarked upon
his own treatment program with little, if any, regard for the actual
recommendations given by his medical doctors. The defence relies on the
statements of the court in Redl v. Sellin, 2013 BCSC 581, which have
some relevance as to how Mr. Wilson has approached his injuries and
treatment:

[55]      Generally speaking, claims for special damages are
subject only to the standard of reasonableness. However, as with claims for the
cost of future care (see Juraski v. Beek, 2011 BCSC 982; Milina v.
Bartsch (1985), 49 BCLR (2d) 33 (BCSC)), when a claimed expense has been
incurred in relation to treatment aimed at promotion of a plaintiff’s physical
or mental well-being, evidence of the medical justification for the expense is
a factor in determining reasonableness. I accept the argument expressed through
Dr. Frobb, that a patient may be in the best position to assess her or his
subjective need for palliative therapy. I also accept the plaintiff’s counsel’s
argument that in the circumstances of any particular case, it may be possible
for a plaintiff to establish that reasonable care equates with a very high
standard of care. In the words of Prof. K. Cooper-Stephenson in Personal
Injury Damages in Canada, (2d ed., 1996) at p. 166:

Even prior to the Supreme Court’s
endorsement of the restitution principle [in Andrews v. Grand & Toy
Alberta Ltd. and Arnold v. Teno], in the area of special damages the
courts had been prepared to allow optimum care, and damages were awarded for
expenses of a character that stretched far beyond the resources of even an
affluent Canadian.

That being said, and while Dr. Frobb’s paradigm of the
patient becoming their own physician may have at least a superficial appeal, plaintiffs
are not given carte blanche to undertake any and all therapies which
they believe will make them feel good.

[Emphasis added.]

[177]     The
circumstances described by the court in Redl were very similar to that
of Mr. Wilson:

[56]      In the present case, Ms. Redl
undertook an extraordinarily wide variety of therapies, some without advice,
and some less conventional than others. She did so at considerable expense. It
is probable, in my view, that she undertook this course of action in part
through a desire to recover quickly and in part on the basis of her positive
past experience, pre-accident, with massage therapy and chiropractic. However,
her firm beliefs notwithstanding, there is no medical evidence that the
therapies she undertook accelerated her return to work or have otherwise
improved her physical condition. … Ultimately, the evidence does not persuade
me on a balance of probabilities that Ms. Redl’s physical or mental
well-being is or could reasonably have been expected to be any greater as a
result of undertaking these frequent therapies, than it would be if she had
stuck to her pre-accident pattern of weekly or bi-weekly massage and monthly
chiropractic treatments.

[178]    
With respect to the physiotherapy, Dr. McGraw indicated that
that treatment should have been discontinued in May 2010. Despite receiving
that advice, approximately two weeks later on May 25, 2010, Mr. Wilson
visited Dr. Symon to obtain a note that Mr. Wilson should continue to
receive “intermittent” physiotherapy treatments. He apparently told Dr. Symon
about Dr. McGraw’s conclusions. Needless to say, Mr. Wilson points to
Dr. Symon’s note as the basis for the continuing physiotherapy treatments.

[179]    
Mr. Wilson puts the court in a difficult position in
determining which medical practitioner is right in terms of the medical
justification for this expense. Be that as it may, in my view, Dr. McGraw’s
opinion should be accepted since he is specialized in the field of orthopaedics
as opposed to Dr. Symon’s focus on family medicine. On the face of things,
it appears that Mr. Wilson disagreed with Dr. McGraw’s
recommendations and went “doctor shopping”. Dr. Symon gave no evidence at
this trial in terms of why he referred Mr. Wilson for physiotherapy in
June 2010 and how long he anticipated this treatment was to continue.

[180]    
I am allowing the sum of $4,200 with respect to physiotherapy
treatments, which equates to the period of time prior to Dr. McGraw’s
recommendations.

[181]    
The basis for Mr. Wilson’s claim for his extensive massage
therapy is based on his contention that it provided temporary relief of his
symptoms and that the symptoms worsened if he did not attend. As I stated
earlier, this statement is suspect given his own recording of notes that
indicate that the massage treatment at times brought on the headaches. Again, he
relies on Dr. Robinson’s opinion which, in large part, is simply based on Mr. Wilson’s
contention that the massage therapy was of “considerable benefit” to him. As
noted above, I do not accede to Mr. Wilson’s contention in this regard.

[182]    
Once more, on the basis that Mr. Wilson should have accepted
Dr. McGraw’s recommendations, I allow the sum of $1,500 for massage
therapy for the period of time to May 2010.

[183]    
With respect to the miscellaneous items, the only items that are
supported by the medical evidence are the ice pack, foam roller and kinesiology
treatments for a total of $658.40. The remainder of the items are either unreasonable
or not justified by any medical evidence. In particular, the moving expenses
have not been shown to arise from any disability that Mr. Wilson was
suffering or should have been suffering at the time.

[184]    
In addition, I allow the sum of some $2,600 in respect of mileage
claimed by Mr. Wilson for the purpose of attending his treatments to May
2010 in accordance with Dr. McGraw’s recommendation.

Summary

[185]    
In summary, damages are awarded as follows:

(a)      Non-pecuniary damages:  $40,000;

(b)      Past
wage loss:  $47,076.66 together with the net amount from a gross wage loss of
$2,235;

(c)      Cost of future care: 
$2,000;

(d)      Special
damages:  $3,710,70, which is $8,958.40 net of the $5,247.70 paid by ICBC.

Costs

[186]     Mr. Wilson
is entitled to pre-judgment interest on the past wage loss claim and special
damages awarded. Mr. Wilson is also entitled to his costs, unless the
parties seek to make further submissions in that respect. If further
submissions are to be made, they must be filed within 30 days of the delivery
of this judgment.

“Fitzpatrick
J.”