IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130626

Docket: M62767

Registry:
Nanaimo

Between:

Derek
Stull

Plaintiff

And:

Robin
Brian Cunningham and
Shawn Jason Emerson Weldon

Defendants

Before:
The Honourable Mr. Justice B.D. MacKenzie

Reasons for Judgment

[1]            
This is a claim for damages by Mr. Stull for personal injuries
arising out of a motor vehicle accident which occurred on September 18,
2009, in Nanaimo, B.C.

[2]            
Liability has been admitted by the defendants. As a result, the primary
issues are the assessment of non-pecuniary damages, past wage loss and loss of
future earning capacity.

The
Accident

[3]            
This was a significant motor vehicle accident. Mr. Stull’s work van
was struck just behind the driver’s door by a speeding vehicle. It was pushed
forward a significant distance before coming to rest against a Hydro pole. There
was extensive damage to his vehicle.

[4]            
Mr. Stull was transported to hospital by ambulance. He testified
that his lower back hurt immediately after the accident. He says this pain
increased the next day and has continued to the present time.

[5]            
He also testified he had neck pain within a few days after the accident.
Mr. Stull says his neck pain is constant and is aggravated when he is
working for prolonged periods of time. He also had mid-back pain but testified
it resolved “after a few months”.

[6]            
Mr. Stull further testified that he had significant headaches
immediately following the accident. These headaches continue to today whenever
he exerts himself at work. He takes pain medication which resolves his
headaches within a few hours.

[7]            
Mr. Stull testified that his low back pain “is always there” and is
“pretty constant” to this date.

Personal
Circumstances

[8]            
Mr. Stull is 36 years of age and is married with two children, a
boy of six years of age and a girl who is eight years old.

[9]            
Mr. Stull obtained a Grade 10 education but notwithstanding
this lack of education, has been a consistently hard worker since he was a
young man. When he was 13 and 14, he washed dishes at a local dining
establishment. At 15 and 16, while still in high school, he was a warehouse
person at a lumber yard. When he left school he drove a truck and worked at a
local floor company as a labourer. He also worked at a local tree service
company. He obtained other construction and labouring jobs but in due course
commenced his own tree business and floor installation company.

[10]        
Mr. Stull eventually scaled back his tree business and since
approximately 2005 has focused solely on the flooring company.

[11]        
In the start-up years, Mr. Stull worked primarily on his own, but
as business increased he hired Mr. Shane Stocking as an assistant. Both he
and Mr. Stocking testified that the business “was growing” and in 2009, before
the accident occurred, Mr. Stocking was getting more hours. He said they
were “doing quite well for ourselves.” Mr. Stull was getting significant
work from Slegg Lumber. He was Slegg Lumber’s number one floor installer prior
to the accident.

[12]        
Mr. Stull testified that at the time of the motor vehicle accident
he had other contracts to install flooring in Nanaimo. He was scheduled to
complete these contracts in the fall/winter of 2009 and the early part of 2010.
Mr. Stull testified that between 2008 and 2009 business was very good. He
said there was a “construction boom” in Nanaimo during 2007 even though
Mr. Nordin, the vocational evaluator, agreed with defendants’ counsel that
there was a fairly significant downturn in the economy “at the end of 2007 and into
2008”; however, as elsewhere, a recession hit the Nanaimo area in 2009 and
renovation work replaced new construction work. Mr. Stull explained this
was because of the government rebate to assist homeowners to renovate their
homes in an attempt to spur economic activity.

[13]        
As a result, Mr. Stull testified that immediately before the motor
vehicle accident occurred he was extremely busy. He testified he was working
six days a week, 10 to 12 hours a day. Mr. Stocking testified they were
working as much as 16 hours a day. Given this testimony, I agree with the
defendants when they say Mr. Stull and Mr. Stocking were operating at
“full capacity” prior to the motor vehicle accident.

[14]        
After the accident, Mr. Stull was off work completely. He attended
the Canadian Back Institute for rehabilitation. He then embarked on a graduated
return to work program. He started working in April 2010 and was deemed fit to
resume full-time work in June of that year.

[15]        
While it clearly was somewhat of a struggle because of Mr. Stull’s
work ethic and his reputation as an excellent installer, in 2011 his gross
revenue was similar to what he had earned before the accident.

[16]        
However, Mr. Stull testified that his business has slowed down in
the last year. He submits this is because he is taking longer to do jobs
because of his inability to do a lot of the installation work which, after the
motor vehicle accident, he had to delegate to Mr. Stocking. As a result, Mr. Stull
has had to revert to a more managerial role. He also sets up the “layouts”
rather than doing all of the continuous bending, kneeling, stooping and nailing
he did before the accident.

[17]        
Unfortunately, work slowed down to such a degree that he had to lay off
Mr. Stocking in early December 2012. Mr. Stull submits that the reason
his business has slowed to this degree is because of the injuries he suffered
in the motor vehicle accident, not because of a downturn in the construction
and flooring industries in the Nanaimo area as the defendants have argued. As
such, he makes substantial claims for past wage loss and loss of future earning
capacity.

The
Plaintiff’s Pre-Accident Health

[18]        
This action is complicated somewhat because of Mr. Stull’s
relatively significant pre-accident medical history. On the one hand, the
plaintiff says all of his pre-accident issues had resolved and had not
presented any difficulties for approximately eight to nine years prior to the
motor vehicle accident.

[19]        
The defendants, on the other hand, submit that the medical evidence
supports their submission that Mr. Stull’s low back pain would have
eventually occurred irrespective of the motor vehicle accident because of his
prior medical history, and the stress his particular line of work puts on even
a healthy back.

[20]        
This history includes a slip and fall down an embankment in 1991 where
Mr. Stull landed on his bottom. He testified it was painful. He had a
wedge compression fracture at L1-2 and L4. The recommended treatment was bed
rest. This pain resolved in a “couple of months.”

[21]        
He had other back complaints in 1992 and 1995 and shoulder soreness in
1997. Rest, ice and Ibuprofen were generally the recommended treatment.

[22]        
In 1999 Mr. Stull, who is a motorcycle enthusiast, fell off a bike
and landed on his back. An X-ray was taken. The plaintiff says that Dr. Cameron,
an orthopaedic surgeon, in September 1999 found no significant deformity. The defendants
say that this accident “may” have resulted in minor compression fractures of T1
and T2 as well as L1-2 and L-2, as well as minor anterior “wedging” in these
areas “consistent” with either minimal recent or old anterior compression
fractures.

[23]        
The defendants note that Mr. Stull had a condition in his spine
known as spinabifida occulta, “a congenital condition which entails the
narrowing of the space between his lumbar vertebrae at L4-5.” The defendants
also point out that Mr. Stull had “an anterior limbus fracture at L4-5”
but which was “clearly old.” Swimming, stretching and physiotherapy were
recommended to deal with these issues.

[24]        
The defendants also point out that on May 3, 2000, Mr. Stull
attended Dr. Marback complaining of “long-standing back problems from
recurrent injuries.” On January 12, 2001, he attended Dr. Dorsey who
noted recurrent lumbosacral back strain, “low grade”. An X-ray report dated
December 10, 2001, “indicates no bone, joint or soft tissue
abnormalities.”

[25]        
New X‑rays taken after the motor vehicle accident in September
2009 confirmed the old injuries and, according to the report, showed
Mr. Stull had “mild” pre-existing degenerative changes in his lumbar
spine, as well as facet osteoarthritis noted on the right side of his lower
lumbar spine.

[26]        
However, the plaintiff submits there is no evidence that there had been
any progression of any degeneration that might have existed at the time of the
1999 or 2001 X‑rays and points out Dr. Roe described Mr. Stull’s
past back injuries as “healed”.

[27]        
The plaintiff also says the uncontradicted medical evidence supports his
submission that he had not seen a medical practitioner for muscle pain or bone
problems in his back since 2001 until the accident on September 18, 2009.
While I agree with the defendants when they say this prior history is relevant
when considering Mr. Stull’s “likely future condition,” I agree with the
plaintiff when he submits that the evidence has established these “distant”
back injuries had “healed” well before the 2009 accident.

[28]        
Finally, the plaintiff acknowledged that he had some difficulty sleeping
in the past. He testified he initially thought it was in 2007 that he was
referred to the Nanaimo Sleep Clinic and underwent a form of therapy. The
medical documentation, however, shows that this occurred in early 2009.

[29]        
Mr. Stull testified that it was his opinion that his sleep was
interrupted because his children had health problems at the time and were awake
during the night, but as his children now sleep throughout the night, his sleep
has improved as well.

[30]        
I accept Mr. Stull’s testimony that his sleeping habits were
relatively routine some time prior to the motor vehicle accident.

Pre-Motor Vehicle
Accident Activities

[31]        
Mr. Stull testified that he was “in fine shape” prior to the motor
vehicle accident and, in fact, could work seven days a week. He had no neck or
back pain, he could cut his own firewood and trim the large cedar hedges on his
property. He testified that he used to enjoy dirt biking with his children and
Mr. Stocking. He said he was financially “stable” and that his wife was
able to stay at home and care for the children, rather than being compelled to
enter the work force for financial reasons, as she did after the accident. He
testified he and the family used to go camping and boating on a regular basis.
He went fishing and dirt bike riding as much as his work schedule would allow, and
enjoyed relatively strenuous hikes.

[32]        
Mr. Stull testified he and his wife had a good relationship and
were not troubled by significant financial issues. He testified he was “paying
my debts and bills,” although he naturally would have liked to have earned more
income.

Post-Motor
Vehicle Accident Activities

[33]        
Mr. Stull testified that since the accident his activities around
the house have been curtailed to a reasonably significant degree. One of the
primary sources of heat at his home is wood. He used to chop four to five
chords a year. Now he can only do part of this work. He needs help from
acquaintances or his brother. He testified that as far as his household chores
are concerned, he has to plan ahead and limit what work he does so he is able
to put in a full day at work the next day. He testified he used to do all the
pruning of his large cedar hedges by himself but now has to engage friends who
have a bucket truck in order to complete this work.

[34]        
Mr. Stull testified that he has had increased stress and arguments
with his wife because of the financial stresses placed on the family after the
motor vehicle accident.

[35]        
He also testified that he has not been able to do as much dirt bike
riding as he had in the past. Mr. Stocking confirmed the plaintiff could
not ride on the more vigorous trails due to his lower back pain.

[36]        
Mr. Stull says his pre-accident weight was 245 pounds but increased
to 267 pounds after the accident. He testified that, because of changing
his diet and doing exercises, he weighed 260 pounds in June 2012.

[37]        
Conversely, the defendants say the only way the motor vehicle accident
has affected Mr. Stull’s recreational activities is that he does not ride
his dirt bike as vigorously as he did prior to the accident. The defendants
acknowledge that Mr. Stull said he did not use his larger boat for fishing
and family boating excursions but note that it was because he was unable to
afford the insurance, not because of injuries. On this point the plaintiff
states the obvious. He cannot afford the insurance because his income has
decreased because of the injuries he suffered in the accident.

[38]        
The defendants point out however that Mr. Stull informed Mr. Vandenboer,
an occupational therapist, that he continued to carry out his duties around the
house and yard, although they do acknowledge Mr. Stull said he must pace
himself to complete these chores.

Medical
Evidence

Dr. Sidky

[39]        
Dr. Sidky saw the plaintiff at the request of the defendants on
July 16, 2012.

[40]        
Dr. Sidky’s opinion was that “as a result of the motor vehicle accident…
Mr. Stull sustained a soft tissue injury to his neck and back.” He reported
that “this soft tissue injury was superimposed on two prior spine fractures
(1991 and 1999) and has resulted in some ongoing symptoms of pain and
disability.”

[41]        
Dr. Sidky expressed the opinion that these two prior fractures, as
well as the work Mr. Stull is engaged in, would likely have resulted in
some ongoing “chronic back pain and disability.”

[42]        
The plaintiff disputes this on the basis he had no difficulties with his
neck and back for several years prior to the motor vehicle accident. Dr. Sidky
also stated:

With respect to Mr. Stull’s
work I feel that he can complete his full duties at work however he may note
some limitations and discomfort with specific activities or with heavy lifting.
I would not place any restrictions on Mr. Stull’s work or recreational
abilities. Given the pre-existing spine fractures as well as the pre-existing
back pain and the repetitive strains placed on Mr. Stull’s spine at work;
I would recommend that Mr. Stull attempt to find a line of work that does
not involve constant bending and repetitive motions as this will undoubtedly
result in ongoing flares of his back pain in the future.

[43]        
Dr. Sidky was not cross-examined at trial.

[44]        
The plaintiff submits that Dr. Sidky formed the opinion that he
sustained soft tissue injury to his neck and back in the motor vehicle accident
and that the timeframe when the neck pain was first felt by Mr. Stull was
consistent with soft tissue injuries suffered in the motor vehicle accident.
Dr. Sidky also noted that while he felt Mr. Stull could complete full
work duties “he may note some limitation and discomfort with specific
activities on heavy lifting.”

[45]        
The plaintiff also points out that Dr. Sidky noted that the X-ray
report of December 10, 2001, indicated no bone, joint or soft tissue
abnormalities. Moreover, there is nothing further from Dr. Sidky with
respect to any complaints or difficulties outlined by Mr. Stull since 2001.
In fact, Dr. Sidky noted at p. 4 of his report that the clinical records
from Dr. Cameron in September 1999 “noted that Derek is employed as a tree
topper and is not having issues with his job.”

Dr. Martin

[46]        
Dr. Martin is a sports and occupational physician. In his May 31,
2012, report, he stated:

His function is now reduced
because of his current complaints. Based on the fact that they have been
maintained for this length of time, it is unlikely that his clinical
presentation will change. Specifically, it is more likely than not that his
symptom presentation will continue into the future.

Dr. Martin also wrote:

It is likely that MMI has been
reached, as Mr. Stull has had no progression of his symptoms, yet no
relief of his symptoms (and therefore one would consider that his conditions
have reached the point of maximum medical improvement).

[47]        
Dr. Martin testified that he diagnosed the plaintiff as having neck
pain and low back pain based on Mr. Stull’s reporting to him. He
acknowledged that there were no objective findings outside of minimal
restrictions of range of motion but that Mr. Stull “was fairly consistent
throughout his presentation.” Dr. Martin confirmed that the X‑ray
taken after the motor vehicle accident indicated compression fractures which
were “likely old” and that there was “mild to moderate degenerative disc
changes at L3-4 with facet osteoarthritis on the right side of the lower lumbar
spine.” He described these old fractures as “healed”.

[48]        
Dr. Martin also expressed the following observation. He states at
p. 4 the following:

Mr. Stull has presented with
these symptoms now since the point of accident of September 18, 2009.
Although I note that he has had prior back complaints and some bony changes to
his spinal column since his teenage years, there is no indication that he had
any ongoing issues with this in terms of affecting his function.

[49]        
Dr. Martin testified at trial that there is a “possibility” that a
person with degenerative changes in their spine will experience back pain over
the long term and that this was especially so with people like Mr. Stull who
are involved in an occupation involving repetitive and sustained stooping and
heavy lifting. Dr. Martin testified, “Yes, eventually it’s going to catch
up.”

[50]        
Finally, the defendants point out that Dr. Martin acknowledged that
if Mr. Stull lost more weight, this would assist him in his rehabilitation
in alleviating his back symptoms and that a rehabilitation program focussed on
improving his strength, endurance and posture would also possibly be helpful.

Dr. Roe

[51]        
Dr. Roe is Mr. Stull’s family physician. In his report of
August 20, 2012, under the heading of “Prognosis”, he wrote:

It is coming up 3 years since the
accident. You asked if I agreed with opinion of Dr. Martin that Mr. Stull
has reached maximum medical improvement. I do not know if he will get better, I
do not know if he’ll get worse. His symptoms and work capacity have plateaued.

Mr. Stull has shown
consistent reduced ability to maintain the level of work required to lay
hardwood flooring all day repeatedly.

[52]        
Dr. Roe noted that Mr. Stull reported he had no significant
symptoms or restrictions related to his back or neck for many years prior to
the accident. He agreed it was reasonable to conclude therefore that all of the
musculoskeletal problems that Mr. Stull suffered from before the accident
had resolved.

[53]        
The defendants however emphasize that Dr. Roe’s diagnosis that
Mr. Stull suffered soft tissue injuries in his neck and lower back as a
result of the accident are again based on Mr. Stull’s subjective presentation.
Similarly, when Dr. Roe says Mr. Stull’s work capacity has plateaued, this
is again based on Mr. Stull’s reporting to Dr. Roe.

[54]        
The defendants also note that Dr. Roe confirmed that losing weight
would be of assistance to Mr. Stull. He also agreed that a program
focussed on improving strength and endurance as well as cardiovascular exercise
would improve Mr. Stull’s chances for a full recovery. Moreover, Dr. Roe
confirmed that the type of work Mr. Stull is engaged in is likely to cause
wear and tear on the lumbar spine over the long run, which is why “we tend not
to see older people doing floor laying.”

Mr.
Vandenboer

[55]        
The defendants acknowledge Mr. Stull suffered some soft tissue
injuries as a result of the motor vehicle accident. They, however, emphasize
the totality of the evidence and especially the May 2011 report of Mr. Fred
Vandenboer, the occupational therapist, in support of their submission that
Mr. Stull’s injuries are relatively modest at this point in time and his
future is not as bleak as he suggests.

[56]        
Mr. Vandenboer saw Mr. Stull on May 4 and 5, 2011. His mandate
was to determine Mr. Stull’s physical tolerances and work capacity.
Mr. Vandenboer was aware of Mr. Stull’s past medical history, and
apart from the sleep and fatigue issues, noted that the last significant issue
involving the plaintiff’s neck or back pain appeared to end in early 2001.

[57]        
Again, the defendants submit that all of the plaintiff’s symptoms are
subjective. As a result, they point out the medical practitioners have relied
primarily on the accuracy and reliability of Mr. Stull’s reporting to them
of his pain levels and functional tolerances when providing their opinions and
prognosis.

[58]        
The defendants note that Mr. Stull reported to Mr. Vandenboer
that his pain level prior to May 2011 was relatively stable and that at that
time he believed he had achieved an overall improvement of approximately 75
percent since the motor vehicle accident.

[59]        
Mr. Vandenboer confirmed that Mr. Stull manages his pain and
symptoms by limiting certain activities and postures, by stretching and soaking
in his hot tub and by taking Emtec 30 medication and anti-inflammatory
medication.

[60]        
Mr. Vandenboer completed significant and detailed testing of
Mr. Stull’s functional capacity. The defendants understandably emphasize
that Mr. Vandenboer concluded that the “overall outcomes of lifting,
carrying, pushing and pulling tests indicate Mr. Stull is able to manage
activity in the heavy strength category (by NOC standards).”

[61]        
Mr. Vandenboer also noted in his report that Mr. Stull’s
“functional performance in strength areas was limited by a combination of
muscle strength, endurance and symptoms recurring in the lower back region.”

[62]        
The defendants say this is significant and submit that if Mr. Stull
increases his endurance and strength, it would enhance or improve his overall
functioning and get him beyond the “plateau” he says he has reached because of
his back problems.

[63]        
Mr. Vandenboer also noted that with respect to body positions, Mr. Stull
was fully functional and that his balance and quality control of movement were “excellent”.

[64]        
Noting that Mr. Stull has some degenerative disc disease of the
lumbar spine, Mr. Vandenboer testified that, in his experience, people
with disc problems and osteoarthritis can have ongoing pain symptoms over the
long term, irrespective of any trauma to that part of the body.

[65]        
Perhaps most importantly, the defendants noted that Mr. Vandenboer
testified that sustained and repetitive stooping will potentially, over the long
term, create wear and tear on any lower spine because this is not an ideal
working position. He testified he would not recommend this sustained activity
for anyone, whether or not they had a back injury or were a healthy individual.

[66]        
In conclusion, and notwithstanding this caveat, Mr. Vandenboer was
of the opinion Mr. Stull was physically capable of continuing in his
present occupation as a floor installer but that the physical requirements of
this occupation may exceed Mr. Stull’s demonstrated activity tolerances
“on occasion”.

[67]        
Mr. Vandenboer also noted that, even though Mr. Stull has been
able to work, albeit in the limited hands-on role, he continues to report some
degree of daily discomfort with resulting impact on his non-work activities,
although he did testify Mr. Stull told him he was walking, swimming and
camping and playing with his children.

[68]        
Nevertheless, Mr. Vandenboer concluded at p. 8:

Mr. Stull is likely working
at his maximum capacity at the present time (see p. 15) and will likely
continue to experience ongoing events specific and cumulative low back and
posterior neck symptoms response in the foreseeable future (in the absence of
further improvement).

Credibility
of Plaintiff

[69]        
As in every case dealing with soft tissue injuries, the credibility of
the plaintiff is of paramount importance.

[70]        
In this case, I have carefully considered the testimony of Mr. Stull,
observed him in the witness box and compared his testimony at trial with
answers he gave at his examination for discovery, as well as his statements to
the various medical practitioners he has seen over the years.

[71]        
On this issue, it is helpful to recall the comments of N.H. Smith J.
in Carvalho v. Angotti, 2007 BCSC 1760. At para. 15 he states:

The attack on the plaintiff’s
credibility is based, in part, on various contradictions and inconsistencies
within her evidence at trial and between that evidence and her discovery
evidence, documents she prepared for other purposes, or statements recorded in
clinical records. It is a rare case of this kind where such inconsistencies
cannot be found. By the time a personal injury case gets to trial, the
plaintiff typically will have provided information to a number of people –
including doctors, adjusters and disability insurers – on a number of occasions
over a period of years. This provides fertile ground for cross-examination
precisely because very few people will have perfect and identical recollection
on each of those occasions.

[72]        
On this point, I agree with Smith J. that inconsistencies in what a
patient says to a medical practitioner sometime prior to testimony at trial
will not, in and of itself, determine the credibility of any particular
plaintiff.

[73]        
Similarly, many years ago in Diack v. Bardsley, (1983) 46 B.C.L.R
240, McEachern C.J.S.C., had this to say at para. 30:

I wish to say that I place
absolutely no reliance upon the minor variations between the Defendant’s
discovery and his evidence. Lawyers tend to pounce upon these semantical
differences but their usefulness is limited

[74]        
Having regard to the totality of the evidence, I am satisfied that
Mr. Stull is a credible and reliable witness who was doing his best to
outline the injuries he suffered in the motor vehicle accident as well as his
ongoing symptoms.

[75]        
I accept his evidence as to the pain and symptoms he has reported since
the accident as they pertain to his lower back and neck as well as his
headaches.

[76]        
At the same time, it was reasonable for defendants’ counsel to point out
apparent inconsistencies in Mr. Stull’s testimony ̶ for example, what he has said to the
various experts and medical personnel about his weight issues, alcohol
consumption and ability to complete his home maintenance projects ̶ and to say they should
affect Mr. Stull’s reliability and the weight I give to his testimony.

[77]        
In my view, however, the relatively minor discrepancies between
Mr. Stull’s discovery answers or prior statements and his testimony at
trial have been adequately explained by Mr. Stull.

[78]        
When I view his evidence in its totality, I am not satisfied that any
inconsistencies in his testimony are of such significance that Mr. Stull’s
overall credibility or reliability is undermined.

Causation

[79]        
The leading case for causation remains Athey v. Leonati, [1996] 3
S.C.R. 458. The plaintiff must prove that the defendant’s negligence caused or
contributed to her injuries (Athey, para. 16). The test for
causation is whether the plaintiff’s injuries would not have occurred “but for”
the defendant’s negligence (Athey, para. 14). Given the totality of
the circumstances, I am satisfied that the plaintiff has established that the
ongoing pain and discomfort he presently suffers is as a result of the accident
in September 2009. I make this finding in light of all of the medical evidence
canvassed above and on the basis of the plaintiff’s testimony, which I find to
be credible, that for several years prior to the accident he was symptom-free,
and that his pain and discomfort arose directly after the accident.

[80]        
As Dr. Roe testified at p. 15:

He injured his — he — he last presented
with back pain approximately a decade prior to the motor vehicle accident. And
although the pain is indistinguishable, in my mind the fact that he was
working, by his report, in his own business, doing flooring 50 hours a week,
six days a week. … and he was able to do that without seeking any attention
for back pain, suggests that the source of his back pain after the accident was
related to the accident.

Non-Pecuniary
Damages

[81]        
Factors that the court has to take into account with respect to this head
of damages have been set out in the often quoted decision of our Court of
Appeal in Stapley v. Hejslet, 2006 BCCA 34. In that case, the Court of
Appeal acknowledged that a non-pecuniary damage award will vary from case to
case depending on the specific circumstances of the plaintiff and each case
will depend on its own circumstances.

[82]        
The factors that must be considered are set out at para. 46:

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

 (a)        age
of the plaintiff;

 (b)        nature
of the injury;

 (c)        severity
and duration of pain;

 (d)        disability;

 (e)        emotional
suffering; and

 (f)         loss or
impairment of life;

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

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

 (h)        impairment of physical and mental
abilities;

 (i)         loss of lifestyle; and

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

Position
of the Plaintiff

[83]        
In support of his submission, the plaintiff has provided the court with
the following authorities:

 1. Szymanski
v. Morin, 2010 BCSC 1:  55 year old self-employed hardwood floor installer;
out of work for only four weeks but chronic pain and less able to do household
chores: $75,000;

 2. Grigor
v. Johal, 2008 BCSC 1823:  49 year old welder, lower back injury resulting
in nerve root impingement; chronic pain which is aggravated by work activities;
“likely” permanent partial disability; $90,000;

 3. Peso
v. Hollaway, 2012 BCSC 1763:  20 year old employee at Home Depot suffering
a back injury at work. Even though there was a pre-existing condition, this did
not negatively impact the plaintiff’s life, therefore there was no basis to
reduce damages; the plaintiff suffered chronic pain disability and loss of
recreational amenities until surgery; the court awarded $100,000 in
non-pecuniary damages;

 4. Slocombe
v. Wowchuk, 2009 BCSC 967:  25 year old carpenter with pre-accident disc
narrowing caused by wear and tear of the joints. The court found that there was
no evidence to indicate that this particular plaintiff had a measurable risk
that the pre-existing condition would have had a detrimental effect on him
regardless of the accident. There were no grounds to reduce the plaintiff’s
award. There was a mild traumatic brain injury which seemed to have resolved
itself. The court found that there was a soft tissue injury and the prognosis
for any “further recovery was poor.” The main complaint of the plaintiff was
the injury to the lumbosacral spine area. The court concluded the plaintiff was
in constant pain and would probably be for the rest of his life and awarded
$125,000 in non-pecuniary damages.

[84]        
Counsel for the plaintiff acknowledges the injuries suffered by
Mr. Slocombe were more serious than those suffered by Mr. Stull.

[85]        
Nevertheless, Mr. Stull’s low back and neck pain are constant. His accident-related
injuries continue to affect his work function and his ability to perform all of
his household chores at the same pace as before. His recreational activities
have been somewhat curtailed. He and his wife experienced relatively significant
marital stress after the accident because of financial problems. Given the
authorities and the factors outlined in Stapley v. Hejslet,
Mr. Stull submits a reasonable award for non-pecuniary damages would be
$110,000.

Position
of the Defendants

[86]        
The defendants submit that the purpose of an award for non-pecuniary
damages “is to compensate the plaintiff for pain and suffering he has
experienced to the date of trial as well as any which may be experienced in the
future.”

[87]        
The defendants also submit that the plaintiff’s pre-existing condition
in his back, the nature of his occupation and his weight “are all factors which
should be taken into account in assessing the ‘plaintiff’s original position’”
for the assessment of damages. I agree with this general proposition.

[88]        
Moreover, the defendants submit that because there were no objective
findings from any of the medical practitioners, apart from minimum restrictions
in range of motion, and that none of the experts have recommended that
Mr. Stull change his occupation and he has continued to operate his
business “at full capacity”, a more modest award is appropriate. Additionally,
the functional capacity evaluation shows that Mr. Stull was able to exceed
all requirements in the strength category. The defendants say these are all
relevant factors in determining what is a fair and reasonable award.

[89]        
The defendants also say that Mr. Stull has not suffered a
significant loss of his previous recreational activities or lifestyle as he has
only had to restrict his dirt biking and boating. Finally, his marital
relationship is now good, primarily because he is working full-time and his
wife is now working because the children are older.

[90]        
In support of their submission that an appropriate award for
non-pecuniary damages would be $50,000, reduced to $40,000 for measurable risk,
the defendants cite the following cases as reasonable comparables:

 1. Stone
v. Kirkwood, 2008 BCSC 1295:  25 year old carpenter and roofer. Previous
back complaints related to a rugby injury and moderate heavy work soft tissue
injuries. The court awarded $40,000 in non-pecuniary damages;

 2. Sidhu
v. Liang, 2009 BCSC 1697:  Injuries to the neck, back, hips and elbows
resulted in chronic persistent pain to a 31 year old longshoreman. The court
was convinced that the plaintiff would make a full recovery and ordered $36,000
for non-pecuniary damages, given the good prognosis for recovery;

 3. Hutchinson
v. Cozzi, 2009 BCSC 243:  The court concluded the plaintiff was not
completely recovered and had occasional or sporadic pain which had become
chronic. The court concluded this pain was no longer “of significant impact
upon his ability to work or his recreational activities.” Non-pecuniary damages
were assessed at $40,000;

 4. Chang
v. Feng, 2008 BCSC 49:  A 28 year old plaintiff sustained a fractured
clavicle, fractures in his foot and soft tissue injuries to his neck and back.
The court concluded the plaintiff suffered some serious injuries in the
accident but ongoing complaints of shoulder pain were not attributable to the
accident. The court awarded $45,000 in non-pecuniary damages.

Conclusion
on Non-pecuniary Damages

[91]        
Having regard to the totality of the circumstances, I accept the
evidence of the plaintiff that he still suffers reasonably moderate neck and
back injuries and that this has affected, to a certain degree, his ability to
do the same type of work around the house that he once enjoyed, that it has
affected his recreational activities to a modest extent, and most
significantly, his ability to perform at full capacity in his chosen
occupation.

[92]        
I accept that Mr. Stull is permanently partially disabled because
of the injuries incurred in this accident and that his pain is constant and
relatively significant. I find that the injuries he suffered in the accident
have prevented him from doing all of the installation work he used to be able
to do throughout his full work day.

[93]        
I also accept the evidence of both Mr. and Mrs. Stull that the
financial impact of the motor vehicle accident caused significant stress and
disharmony in their marriage.

[94]        
I also agree with counsel for the plaintiff that, by their very nature
soft tissue injuries are not always manifested by objective signs. Complaints
of soft tissue pain and headaches are subjective in nature. I do note, however,
that Dr. Martin saw Mr. Stull in late May 2012 and noted “a mild
decreased range of motion.” I accept Mr. Stull’s evidence with
respect to the ongoing significance of these symptoms and find that they were
caused by the accident and are not a result of normal wear and tear on a back
that had been traumatized many years before.

[95]        
Given the totality of the circumstances, I am satisfied a fair and
reasonable assessment of non-pecuniary damages would be $85,000.

Measurable
Risk

[96]        
Referring to the Supreme Court of Canada decision in Athey v. Leonati,
[1996] 3 S.C.R. 458, [1996] S.C.J. No. 102, at para. 35, the
defendants submit that the pre-existing spine fractures, the degenerative
changes and osteoarthritis in his lumbar spine and the repetitive strains
placed on Mr. Stull’s back at work should result in a reduction in the
damages that it would be otherwise appropriate to award.

[97]        
As Pearlman J. stated in Bouchard v. Brown Bros. Motor Lease
Canada, Ltd., 2011 BCSC 762,
at para. 123 (the percentage deduction varied 2012 BCCA 331):

In Athey at para. 35,
the Supreme Court of Canada held that "if there is a measurable risk that
the pre-existing condition would have detrimentally affected the plaintiff in
the future, regardless of the defendant’s negligence, then this can be taken
into account in reducing the overall award." The Court explained that this
is consistent with the general rule that the plaintiff must be returned to his
original position, with all of its risks, rather than to a better position.

[98]        
Moreover, in T.W.N.A. v. Canada (Ministry of Indian Affairs),
2003 BCCA 670, at para. 48, Mr. Justice Smith stated:

… Whether manifest or not, a
weakness inherent in a plaintiff that might realistically cause or contribute
to the loss claimed regardless of the tort is relevant to the assessment of
damages. It is a contingency that should be accounted for in the award.
Moreover, such a contingency does not have to be proven to a certainty. Rather,
it should be given weight according to its relative likelihood.

[99]        
The defendants submit that because the plaintiff should not be put in a
better position than his original position, they should not have to compensate
the plaintiff for any damages he would have suffered anyway, regardless of the
accident.

[100]     The
defendants say that in this case:

… the plaintiff’s pre-existing
condition of his lumbar spine, together with the expected deterioration of the
plaintiff’s low back as a result of the nature of his occupation are inherent
in his “original position”.

[101]    
The defendants submit that Mr. Stull was, prior to the motor
vehicle accident, at risk for future development of back pain because of
pre-existing spine fractures, degenerative changes in his lumbar spine,
osteoarthritis and the repetitive strains placed on his back because of work,
as well as his significant weight.

[102]     The
defendants say that the testimony of Drs. Roe and Martin and
Mr. Vandenboer confirm that the plaintiff was at risk for future problems
with his back. The defendants note that Dr. Sidky said in his report that
his prior fractures, coupled with the repetitive nature of Mr. Stull’s
work, “would likely have resulted in some ongoing chronic back pain and
disability.”

[103]     In
response, the plaintiff says the circumstances in this case do not support a
reduction in the damage award simply because of the possibility Mr. Stull
might have had back problems in the future, absent the accident. The plaintiff
submits that Mr. Stull’s testimony was that he had no residual pain or
limitations from any previous injuries. He testified that he was working six to
seven days a week, 10 to 12 hours per day, at full capacity at the time of the
accident. There is no issue with respect to this aspect of his evidence.

[104]     What is
most significant in this analysis is the fact that I have accepted
Mr. Stull’s testimony as to the lack of any symptomology prior to the
accident, that he was symptom-free for a period of approximately eight years,
and the fact that his pain and disability occurred at the time of the motor
vehicle accident and continue to the present time.

[105]     I
acknowledge that Mr. Vandenboer agreed that repetitive stooping could
potentially cause back pain and that Dr. Roe agreed that floor laying is
hard on a person’s back. But as Dr. Roe testified, because Mr. Stull says
his last significant pain was nearly “a decade” earlier and he was able to
perform his work without a problem, this supports the conclusion the post-motor
vehicle accident pain is attributable to the accident, not to any pre-existing
condition.

[106]     Moreover,
I agree with plaintiff’s counsel that the medical evidence falls short of
demonstrating that any ongoing chronic back pain and disability or any ongoing
“flares of his back pain in the future” that might occur even without the
accident would be sufficiently serious to render the plaintiff unable to
continue as a hardwood floor installer to the same degree he was working prior
to the accident.

[107]     Given the
totality of the circumstances, I am not satisfied the defendants have
established that there is a measurable risk that Mr. Stull would have
developed pain and disability absent the motor vehicle accident that would have
contributed to the losses at issue in this trial, even though as Dr. Martin
and Dr. Roe acknowledged, repetitive bending and stooping is hard on any
back, even a healthy, non-traumatized back. I am not satisfied this evidence is
sufficient to reduce any award that might be made. As plaintiff’s counsel has
pointed out, in cases such as Bouchard and Sanders v. Janze, 2009
BCSC 1059, there was evidence of significant or severe on-going symptomology (Sanders,
paras. 44‑46, 84) “that was already in play” (Bouchard,
para. 127) or had manifested itself by the time of trial.

Past
Income Loss

[108]    
Damages under this heading, like loss of future earning capacity,
represent compensation for loss of pre-trial earning capacity. However:

… the loss of the past earning
capacity is quantified by the amount of the wages or salary the plaintiff would
have earned at the job if his or her capacity had not been impaired by the injuries
sustained in the accident. (See Bradley v.
Bath, 2010 BCCA 10, para. 33).

[109]     At the
same time, the plaintiff has acknowledged that “[t]he overall fairness and reasonableness
of the award must be considered taking into account all the evidence” (see Rosvold
v. Dunlop, 2001 BCCA 1), and further, that “the task of the court is to
assess damages not to calculate them on some mathematical formula” (Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248,
at para. 43).

[110]     The
plaintiff seeks a significant award of damages under this heading on the basis
that, given Mr. Stull’s pre-accident annual revenues, it would be
reasonable to assume his business would grow “in general accordance with the
pattern of growth experienced by the business prior to the accident.”

[111]     The
plaintiff says that, utilizing this analysis, it would be reasonable to assume
that, but for the accident, Mr. Stull’s business would have continued to
grow at 12 to 13 percent each year until approximately 2012 and then because he
has no desire to grow into a “large enterprise”, level off. The plaintiff also
says it is reasonable to conclude that net profit would have been 45 percent of
revenue based on past financial statements. Mr. Stull says that by using
this analysis, a reasonable award for past wage loss would be $110,322.

[112]     The
defendants’ position is that Mr. Stull should be compensated on the basis
of being off work completely from the date of the accident to April 2010, and
then on the basis of working part-time until June. The defendants therefore say
a reasonable award for past loss of income would be approximately $20,000.

[113]     On this
issue, the defendants say the assumption that Mr. Stull’s business would
have grown by a compounded 13 percent per year is unreasonable and does not
bear a relationship with the financial documents that have been provided. The
defendants also say this submission fails to recognize the evidence that
Mr. Stull and his employee, Mr. Stocking, were working at “maximum”
capacity right before the motor vehicle accident occurred. On this point, it is
important to recall Mr. Stull’s evidence that immediately before the
accident he was working 10 to 12 hour days, six days a week. In
cross-examination Mr. Stull testified he “was working more than full-time
hours.” Mr. Stocking testified that in the summer of 2009, he and the
plaintiff were working “probably” 12 to 16 hour days. As a result, the
defendants submit that, while they concede Mr. Stull lost specific
installation contracts he was due to complete in the months following the
accident, the court should recognize that these jobs would have precluded
Mr. Stull from doing other jobs, such as Slegg Lumber jobs, so as not to
overcompensate Mr. Stull under this head of damages. I agree with that general
observation.

[114]     The
defendants say the totality of the evidence is such that the court cannot
reliably presume there would be a 13 percent increase in revenue each and every
year based on the financial figures that have been presented in this case. The
defendants say this is especially so when this analysis is based on a
26 percent increase in revenue in 2005 and a 12 percent increase in
2007/2008 with little or no increase in 2006. They say it is important to
recall that Mr. Stull himself acknowledged that these were boom times in
Nanaimo, especially 2007 to 2008. Moreover, the increase in revenue of 0.21 percent
in 2006/2007 highlights the vagaries of the construction industry in general
and in Nanaimo in particular. As such, the defendants say the decline in gross
revenues in 2012 cannot be attributed to Mr. Stull’s reduced capacity to
work but rather is because of the downturn in the economy and in the industry.

[115]     In
addition, the defendants say that given that Mr. Stull was able to
generate revenue in 2011 similar to revenue in the “boom” year of 2008, the
decrease in 2012 was not because of the motor vehicle accident but rather the
state of the industry. They say this is especially so when revenue in 2011 was
$83,200, higher than any prior year apart from 2009.

[116]     The
defendants also say that Mr. Stull’s net profit for 2009 was approximately
$21,200, which, when extrapolated over the full year, suggests net income of
around $30,000, much less than what the plaintiff says he could have earned
absent the accident.

[117]     Therefore,
the defendants say the assumption that his business would grow at 13 percent
each year is not consistent with the reality of the economic climate. The decrease
in revenue was simply because the work was not there. On this point the
evidence of Mr. Stocking is again significant. He confirmed he was laid
off in early December 2012 “because there is really nothing out there now.”

[118]     I accept
the defendants’ submission on this issue. Given the totality of the
circumstances I am unable to conclude that Mr. Stull’s past loss of
earning capacity can properly be based on a compounding 13 percent increase in
projected revenues for the three years from the date of the accident to the
date of the trial, before he would have reached maximum earning capacity.

[119]     I also
agree with the defendants that the evidence of Mr. Carson, based on the
2006 Census data which reflects 2005 income for similar occupations throughout British
Columbia, is not helpful with respect to a fair determination of damages under
this head. Similarly, the vocational expert, Mr. Nordin, agreed that
Mr. Stull’s actual past earnings would be a “better measurement” tool for
future earning estimates than the 2006 Census which would not take into
consideration the recession in 2008.

[120]     I do
however accept the plaintiff’s submission that it is reasonable, based on the
financial documentation, to conclude that Mr. Stull’s average net profit
percentage in the past is indicative or a reasonable predictor of what his
average net profit percentage would have been after the motor vehicle accident.
I accept that a reasonable estimate of Mr. Stull’s net profit from year to
year would be the 45 percent of his overall revenue as advanced by
Mr. Stull’s accountant, Ms. Barber.

[121]     On this
point, the defendants have conceded that the plaintiff lost contracts with
three contractors when he was injured in the motor vehicle accident. These
specific contracts were with Watercress Developments Inc., Saywell Contracting
Ltd. and Wingren Floor and Supply Co. Ltd.

[122]     With
respect to these specific contracts, I accept the plaintiff’s calculations that
Mr. Stull suffered a net profit loss of $18,610 in the year 2009 as a
result of not being able to complete these projects.

[123]     The
plaintiff also submits that because the federal Government’s home renovation
program in 2009 created much work for people such as Mr. Stull, it is
reasonable to take into consideration as best as one can, what Mr. Stull
might have lost due to his inability to work from September 19, 2009, through
to February 1, 2010, when the home renovation program expired. It is
however important to remember that Mr. Stull would have been busy with the
specific contracts already referred to as well as any work from Slegg Lumber that
might be accounted for.

[124]     In support
of his submission that there should be some compensation for loss of earning
capacity during this period of time, Mr. Stull has averaged his revenue
from September through to December for the years 2007 to 2011 and, based on a 45 percent
average net profit, has calculated that, but for the motor vehicle accident, he
lost revenue from September 20 to December 31 in 2009 of $9,504 and
for the one month, January 1, 2010, to January 31, 2010, $2,030, for
a total of $11,534.

[125]     Moreover,
even though I have accepted the defendants’ submission that Mr. Stull and
Mr. Stocking were working long days just before the motor vehicle
accident, I am of the opinion it is fair and reasonable to take into
consideration the difference between the work that Mr. Stull received from
Slegg Lumber when he was their number one installer and the work he received
after the accident, and to compare that to the work that the new number one
installer, Mr. Karl Weir, obtained from Slegg Lumber in the years 2010,
2011 and 2012, with a view to incorporating an assessment of this income loss
into the overall award.

[126]     On this
point, I am satisfied that but for the accident Mr. Stull would still have
been capable of performing all of the work for Slegg Lumber, even though, as in
the past, he would have other work to do at the same time. I therefore accept
the plaintiff’s assessment that for 2010 Mr. Stull lost a net profit of
$6,336 that would have otherwise come his way pursuant to his relationship with
Slegg Lumber.

[127]     I am also
satisfied that for the year 2011 Mr. Stull suffered a loss of net profit because
of reduced work from Slegg Lumber of $4,071 and in 2012 suffered a loss of net
profit of $8,403. These two amounts total $12,474. From 2010 to 1012, the loss
of net profit from Slegg Lumber is $18,811.

[128]     In
conclusion, by considering these calculations along with the past financial
statements, I am satisfied that a fair and reasonable assessment of
damages for past wage loss would be $50,000.

[129]     As counsel
have requested, my analysis of the evidence suggests that these amounts of past
wage loss can be broken down as $29,000 for 2009, $8,500 for 2010; $4,000 for
2011 and $8,500 for 2012.

Loss of
Future Earning Capacity

[130]     I now turn to Mr. Stull’s claim for loss of future earning
capacity.

[131]     In Wong v. Hemmings, 2012 BCSC 907, at paras. 146-151,
Fitch J. summarized the legal principles pertaining to this head of
damages:

[146]    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, if so
2) 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.

[147]    The
assessment of damages is a matter of judgment, not calculation: Rosvold v.
Dunlop, 2001 BCCA 1 at para. 18.

[148]    Insofar
as 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: Gregory v. Insurance Corp. of British Columbia, 2011
BCCA 144 at para. 32.

[149]    There
are two possible approaches to assessing of loss of future earning capacity:
the “earnings approach” from Pallos; and the “capital asset approach” in
Brown. Both approaches are acceptable. Reliance on the capital asset
approach will be more useful where, as in this case, the loss in question is
not easily measureable: Perren v. Lalari, 2010 BCCA 140.

[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 v. Bottle, 2011 BCSC 1389 at
para. 233.

[151]    The
capital asset approach involves considering factors such as: i) whether
the plaintiff 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.

[132]              
In Andrews v. Grand & Toy Alberta Ltd., [1978]
2 S.C.R. 229 at 251, the Court said:

We must now gaze
more deeply into the crystal ball. What sort of a career would the accident
victim have had? What were his prospects and potential prior to the accident?
It is not loss of earnings but, rather, loss of earning capacity for which
compensation must be made: The Queen v. Jennings, [1966] S.C.R. 532, supra.
A capital asset has been lost: what was its value?

[133]    
In Reilly v. Lynn, 2003 BCCA 49 at para.
101, the court stated:

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.).

[134]     The court in Bhadlawala v. Baxter, 2012 BCSC 366, at para.
138, stated:

The
assessment of loss of future earning capacity is not a mathematical exercise,
and must deal to some extent with the unknowable. As Huddart J.A. put it
in Rosvold v. Dunlop, 2001 BCCA 1 at para. 9, ‘[p]ossibilities and
probabilities, chances, opportunities, and risks must all be considered, so
long as they are a real and substantial possibility and not mere speculation’.”

[135]    
Mr. Stull says the evidence has established that there is a real
and substantial possibility that he will suffer a loss of future earning
capacity as a result of the injuries suffered in the motor vehicle accident. He
submits a fair and reasonable assessment in these circumstances would be an
award in the neighbourhood of $478,000, this figure being reduced from the
original submission that $600,000 would be appropriate.

[136]    
The plaintiff says that it is reasonable to expect that Mr. Stull
will achieve only future net income of between $20,000 and $30,000 year over
year, as opposed to the $56,000 he would have earned if there had been no
accident based on the 2006 Census data for floor layers and a
“contractor/manager”, the projected 12 to 13 percent increase in annual gross
revenue, and that he will retire sometime between ages 65 and 70. The plaintiff
therefore submits that:

… a reasonable assessment of
Mr. Stull’s future income loss is somewhere between the figures of
$351,788.80 ($30,000 net income to age 65) and $605,157.60 ($20,000 net income
to age 70). The mid-point between these two figures is $478,468.20.

[137]     The
plaintiff says that this amount is reasonable, applying a:

…math-oriented methodology of
postulating a minimal annual income loss of the plaintiff’s remaining years of
work, multiplying the annual projected loss by the number of remaining years
and calculating a present value.

[138]    
As such, the plaintiff submits that using the capital asset approach and
simply applying an award based on Mr. Stull’s annual income for a year or
two is inappropriate on the facts of this case.

[139]     Conversely,
the defendants submit that given the uncertainties in the construction and
renovation business in general and hardwood floor installation in particular,
the earnings approach is not appropriate. They say the correct approach, if
indeed the court is satisfied that there should be an award for loss of future
earning capacity, is the capital asset approach.

[140]     In support
of this submission, the defendants say the plaintiff’s loss is not easily measurable.
This is because the defendants say Mr. Stull’s business is subject to
fluctuating gross revenues as well as expenses related to labour and materials.
Moreover, his business is susceptible to changing market conditions. Mr. Nordin
also noted that during a downturn in the economy, people “tend to put off”
flooring and these “kinds of businesses do suffer.”

[141]     Moreover,
I have already determined that it is inappropriate to measure Mr. Stall’s past
income loss based on the assumption that Mr. Stull’s revenues would have
grown on a compounding basis at 12 to 13 percent per year and then remain
fairly constant, or that he will achieve a specific maximum level of income. I
make the same determination when considering any loss of future earning
capacity if, in fact, the evidence establishes a real and substantial
likelihood that Mr. Stull’s future earning capacity has been impaired by
his accident-related injuries.

[142]     When
considering this question, I am satisfied that the mere fact that Mr. Stull,
through stoicism and dedication, has returned to his usual employment is not
sufficient to conclude he has failed to establish there is a real and substantial
possibility of a future income loss.

[143]     Given the
evidence I have accepted, I am satisfied Mr. Stull has met the initial
burden of establishing that there is a real and substantial possibility of
income loss, as required by our Court of Appeal in such cases as Perrin v.
Lalari, 2010 BCCA 140.

[144]    
First, I have accepted Mr. Stull’s testimony that he has difficulty
with respect to the heavier aspects of the floor installation business due to
the soft tissue injuries he suffered in the motor vehicle accident. Having
accepted Mr. Stull’s testimony, I cannot agree with the defendants that he
stands to suffer no future losses under this head. Mr. Nordin’s opinion at
p. 16 is helpful:

As a result of his ongoing
symptoms Mr. Stull will not be able to access labouring jobs such as
construction helper, warehouse man, deck hand, etc. (jobs that would have been
potential options for him pre-accident).

I believe, therefore, his
residual vocational options have been significantly diminished by his ongoing
symptoms.

[145]     While it
is true that Mr. Nordin agreed in cross-examination that because Mr. Stull
is presently earning a reasonable income, his best option is to continue to
operate his flooring business, he did observe that this would require
Mr. Stull “to make adaptions.”

[146]     Similarly,
Mr. Vandenboer expressed the opinion that Mr. Stull will likely
continue to experience ongoing symptomology, depending on any particular
activity he might undertake, and that this will focus on his low back and neck.

[147]     Dr. Martin
expressed the opinion that Mr. Stull has reached maximum medical
improvement and that, while he will be able to carry on in his business and
improve his symptomology or decrease his pain and discomfort if he moves into
more supervisory activities and reduce his heavy labouring, it is only by way
of these modifications in his business activities that he will be able to work
to full capacity in this occupation.

[148]     Finally, as
I have mentioned, Dr. Sidky expressed the opinion that Mr. Stull
should attempt to find a different occupation that does not involve constant
bending and stooping and repetitive motions as these activities might result in
“ongoing flares” of his back pain in the future.

[149]     In my
view, this latter opinion from Dr. Sidky undermines the defendants’
submission that “the plaintiff has not received any medical advice to change
his occupation as a result of the injuries he sustained in the accident.”

[150]     Given that
I have found that Mr. Stull’s present difficulties in his back are a
result of the accident, I cannot accept the defendants’ submission that
Mr. Stull’s future earning capacity has not been impaired as a result of
the accident.

[151]     I also
accept Mr. Stull’s evidence that, while he has not turned down any jobs he
is “qualified” to do, he is not as busy now as he was partly because he is
taking longer to complete the jobs he has taken on since his return to
full-time work, as well as because of the vagaries of the construction
industry.

[152]     Finally,
because of the accident, he is no longer Slegg Lumber’s number one installer.

[153]     Given the
totality of the evidence, I am satisfied that Mr. Stull has established
that he has been rendered less capable of earning income from all types of
employment. He has lost the ability to take advantage of all job opportunities
which might have otherwise been open to him had he not been injured and he is
now less valuable to himself as a person capable of earning income in a
competitive labour market.

[154]     As a
result, Mr. Stull’s future earning capacity has been impaired. Even though
it would appear Mr. Stull will carry on as best he can in the floor laying
business, it would be at reduced efficiency because of the injuries caused by
the motor vehicle accident.

[155]     Having
concluded that Mr. Stull has established that there is a real and
substantial possibility he will suffer a loss of income earning capacity, I now
turn to consider what is the appropriate methodology for determining a fair and
reasonable award of damages under this heading.

[156]     On this
point, the multiplier tables utilized by the economist, Mr. Carson, are of
some assistance to the court in assessing what would be a fair and reasonable
assessment under this heading of damages. They are useful to a certain extent
in illustrating “at least in a broad sense” the claim relating to loss of
earning capacity. See Wong v. Hemmings, 2012 BCSC 907, at
para. 157.

[157]     However, given
the totality of the circumstances, I agree with the defendants that the capital
asset approach is appropriate in these circumstances, notwithstanding the fact
that Mr. Stull has been engaged in this business for approximately seven
or eight years.

[158]     At the
same time, it is necessary to acknowledge the potential for various positive
and negative contingencies occurring over the working life of any plaintiff. Positive
contingencies would include potential improvements in health and an expansion
of Mr. Stull’s business.

[159]     Conversely,
I must take into consideration the negative contingencies that the construction
industry could suffer another significant downturn, or that Mr. Stull,
even without the accident, might not continue to work as a floor layer to 65 or
70 years of age. On this latter point, I note Mr. Stull’s own testimony
that his intention, before the accident, was to “retire early.” There are also
the usual chances and hazards of life. See Trites v. Penner, 2010 BCSC
882, at para. 228.

[160]     The
defence submits that, even if I do conclude that Mr. Stull has a partial
disability because of injuries suffered in the accident that affect the heavier
aspects of the floor installation work, he would still likely be able to
replace any lost income, and perhaps earn more, by taking on more of a
managerial role, or that he might be able to find other jobs that do not
require as much stooping, bending over and heavy lifting, “although he tested
readily capable of that.”

[161]     As a
result, the defendants say that, because the overriding principle is the
fairness and reasonableness of the award to both the plaintiff and the
defendants, the award under this head of damages should be $30,000 to $60,000.
This award would approximate one or two years of Mr. Stull’s average
annual net income.

[162]     In my
opinion, such an award is unduly low, but at the same time the amount suggested
by the plaintiff is not supportable having regard to the totality of the
evidence.

[163]     However, Mr. Stull
is a relatively young man and can reasonably expect to remain in the workforce
for many years. Given his occupation as a floor layer, one of his most valuable
assets was the resilience and ability of his body to do physical labour. The
motor vehicle accident has affected that asset and Mr. Stull should be
compensated. Given all of the evidence and taking into consideration the
various contingencies I have referred to, I am satisfied a fair and reasonable
award for loss of future earning capacity is $150,000.

Mitigation

[164]    
The defendants say that Mr. Stull’s damage award should be reduced
because of a failure to mitigate his losses. The Supreme Court of Canada in Janiak
v. Ippolito, [1985] 1 S.C.R. 146, spoke about the burden of proof as it
pertains to mitigation. The court there stated:

32.       While a plaintiff has
the burden of proving both the fact that he has suffered damage and the quantum
of that damage, the burden of proof moves to the defendant if he alleges that
the plaintiff could have and should have mitigated his loss.

The court also said:

36.       Turning now to the
implication of a finding of unreasonableness for the plaintiff’s recovery, it
is clear that the so-called “duty to mitigate” derives from the general
proposition that a plaintiff cannot recover from the defendant damages which he
himself could have avoided by the taking of reasonable steps.

[165]     The
defendants say that in the circumstances of this case, primarily because
Mr. Stull has not embarked upon a rehabilitation program as recommended by
Ms. Carrie Wright, an occupational therapist, the court should find that
he has failed to take reasonable steps to mitigate his damages, and that his
award should be reduced accordingly.

[166]     The
plaintiff says that the evidence does not establish he failed to mitigate his
losses, given that he engaged in a strenuous rehabilitation program with the
Canadian Back Institute that resulted in him eventually participating in the
“Graduated Return to Work Program” and that he returned to the work force,
albeit in a limited capacity, by April 2010.

[167]     On this point
I note that Dr. Martin concluded:

Mr. Stull
has had the benefit of multidisciplinary rehabilitation programs, and at this
point, in my opinion, he would not benefit from further attendance.

[168]     On this issue,
both counsel have referred to the decision of our Court of Appeal in Chiu v.
Chiu, 2002 BCCA 618, where Low J.A. set out the following tests with
respect to the issue of a duty to mitigate:

57.       The onus is on the
defendant to prove that the plaintiff could have avoided all or a portion of
his loss. In a personal injury case in which the plaintiff has not pursued a
course of medical treatment recommended to him by doctors, the defendant must
prove two things: (1) that the plaintiff acted unreasonably in eschewing the
recommended treatment, and (2) the extent, if any, to which the plaintiff’s
damages would have been reduced had he acted reasonably. These principles are
found in Janiak v. Ippolito, [1985] 1 S.C.R. 146.

[169]     Moreover,
the defendants cite Southcott Estates Inc. v. Toronto Catholic District School
Board, 2012 SCC 51, a recent decision of the Supreme Court of Canada that
states the correct test is whether mitigation was possible, not probable.

[170]     At paragraph 24,
the court stated:

As a general rule, a plaintiff
will not be able to recover for those losses which he could have avoided by
taking reasonable steps. Where it is alleged that the plaintiff has failed to
mitigate, the burden of proof is on the defendant, who needs to prove both that
the plaintiff has failed to make reasonable efforts to mitigate and that
mitigation was possible (Red Deer College v. Michaels, [1976] 2 S.C.R.
324).

At paragraph 25, the court
concluded by stating:

Mitigation is a doctrine based on
fairness and common sense, which seeks to do justice between the parties in the
particular circumstances of the case.

[171]     The
primary basis for the defendants’ submission is that Mr. Stull attended
Ms. Wright for the “express purpose of assessment of his rehabilitation
needs.” Ms. Wright made recommendations for an exercise program with a kinesiologist,
as well as other pain management strategies. The defendants submit that
Mr. Stull has acknowledged that he did not follow the specific
recommendations advanced by Ms. Wright, and when combined with the
evidence of Drs. Roe and Martin, and Mr. Vandenboer, Mr. Stull’s
chances of improvement would increase if he were to undertake the
recommendations for improving his strength, endurance and posture. Indeed, all
the medical witnesses agreed that exercise and weight loss would assist in
improving Mr. Stull’s chances of relieving his back pain in the future.

[172]     Conversely,
the plaintiff says he has not failed to mitigate his damages given that he
participated in the CBI Rehabilitation Program and has continued to engage in
an independent exercise program, albeit not supervised by an independent kinesiologist.
Once again I find Mr. Stull a credible witness when he says he is
embarking upon a reasonable exercise program in an attempt to increase his
strength and endurance in order to allow him to deal with the heavier aspects
of his work. I accept his evidence when he says he follows the recommendations he
has received from other physiotherapy personnel and has increased his core
strengthening exercise program from three times a week to every day.

[173]     In these
circumstances, and while a more stringent rehabilitation regime probably would
assist Mr. Stull in his rehabilitation, I am not satisfied that the defendants
have established that Mr. Stull was acting unreasonably by not addressing
the specific recommendations made by Ms. Wright or that the defendants
have established that Mr. Stull’s damages would have been reduced had he
in fact done so. I am satisfied he has taken reasonable steps to mitigate by
embarking upon the comprehensive CBI Program, by returning to work and working
as hard as he can, given his limitations, by attempting to reduce his weight by
dieting and by stepping up his home exercise program.

[174]    
I am therefore not satisfied that the defendants have established
Mr. Stull has failed to mitigate his loss. There will be no reduction in
damages on the basis of a failure to mitigate.

Special Damages

[175]     I am
satisfied that the amount claimed by the plaintiff for special damages were
reasonably incurred as a result of the accident. There will be an award for special
damages in the amount of $2,123.57.

Cost of Future Care

[176]     As the
defendants submit, any award for future care is based on what is reasonably
necessary on the medical evidence to promote the mental and physical health of
the plaintiff. Moreover, there must be a medical justification for claims for
cost of future care and the claims must be reasonable: Milina v. Bartsch,
[1985] 49 B.C.L.R. (2nd) 33 at 78 (B.C.S.C.), aff’d [1987] 49 B.C.L.R. (2nd) 99,
paras. 184 and 211 (B.C.C.A.). On this point, the plaintiff submits that
an amount of $5,000 would be reasonable for the cost of future care on the
basis that there is medical evidence to suggest that some physiotherapy and
massage would be of assistance to Mr. Stull in the future irrespective of
whether he has actively participated in such physiotherapy in the past. Dr. Martin
stated that Mr. Stull would benefit from periodic chiropractic or massage
therapy. Dr. Roe agreed with Dr. Martin’s recommendations.

[177]     The
plaintiff acknowledges that this is a purely arbitrary figure. Even though the
plaintiff did not provide any specific evidence about the actual cost of massage
treatment or physiotherapy, I am satisfied a reasonable award for the cost of this
future care would be $1,000.

Summary

[178]              
The award will be as follows:

Costs

[179]     Unless
there are facts unknown to me which could reasonably affect the issue of costs,
I am satisfied the plaintiff is entitled to his costs at Scale B.

                   “B.D.
MacKenzie, J.”                   

The
Honourable Mr. Justice B.D. MacKenzie