IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Raymer v. Brar, |
| 2013 BCSC 1222 |
Date: 20130710
Docket: M115310
Registry:
Vancouver
Between:
Robert
Leo Raymer
Plaintiff
And
Sukhvir
Brar and Mandeep Kaur Brar
Defendants
Before:
The Honourable Mr. Justice Fitch
Reasons for Judgment
Counsel for the Plaintiff: | J.F. Raymond |
Counsel for the Defendants: | Joseph Wong |
Place and Date of Trial: | Vancouver, B.C. June 3-7, 2013 |
Place and Date of Judgment: | Vancouver, B.C. July 10, 2013 |
A. Introduction
[1]
On October 17, 2009 the plaintiff, Robert Raymer, a self-employed
restorer of vintage and other collectible automobiles, was injured in a motor
vehicle accident that occurred on 24th Avenue in Langley, British
Columbia. The defendants admit liability for the accident. Mr. Raymer
seeks non-pecuniary damages, damages for past and future loss of earning
capacity, special damages and a modest award for the cost of future care.
[2]
The defendants acknowledge that the plaintiff suffered soft tissue
injuries in the accident, most significantly to his neck and lower back, and
that the force of the impact caused an umbilical hernia for which the plaintiff
will require surgery. The defendants submit that apart from the untreated
umbilical hernia, the plaintiff fully recovered from the neck and low-back soft
tissue injuries. The defendants submit that the evidence does not support a
finding that the plaintiff’s injuries resulted in a past income loss. In
addition, the defendants submit that, apart from recovery time that will be
required if the plaintiff determines to undergo surgical repair of the
umbilical hernia, the evidence does not support a real and substantial
possibility that the accident-related injuries will give rise to a future loss
of earning capacity. It is the position of the defendants that if there is a
future income loss or loss of earning capacity, it will be caused by the
inevitable progression of the plaintiff’s left hip degenerative osteoarthritis,
which became symptomatic about 20 months after the motor vehicle accident. The
parties agree that the plaintiff’s left hip osteoarthritis was not caused or
contributed to by the accident. In other words, it is common ground that
arthritic changes to the plaintiff’s left hip became symptomatic in the normal
time frame and are unrelated to the accident. Finally, the defendants submit
that while the plaintiff may well require future care as his osteoarthritis
progresses, he is not entitled to an award for future care costs as a
consequence of his now healed accident-related injuries.
[3]
The plaintiff called six additional witnesses at trial: his wife,
Audrey Hall; his family physician, Dr. Comeau; his physiotherapist,
Florence Yip; two of his soccer teammates, Joel Grymaloski and Philip Cote; and
Grant Hoffman, who has worked as an auto body repair technician in the
plaintiff’s shop since the mid-1990s.
[4]
The defendants called one witness – Dr. McKenzie, an orthopedic
surgeon who examined the plaintiff at the defendants’ request in January, 2013.
B. The Motor Vehicle
Accident
[5]
On October 17, 2009 at about 1:30 p.m. the plaintiff was driving to work
eastbound on 24th Avenue between 210th and 216th
Streets in the City of Langley. He was operating a right-hand drive 1992
Toyota Soarer. The defendant, Sukhvir Brar, while travelling westbound, turned
left into the plaintiff’s direction of travel striking the left front passenger
side of the Soarer. The impact pushed the plaintiff’s vehicle off the road and
into a water-filled ditch. The Soarer came to rest in the ditch on the driver’s
side door. Fortunately, the plaintiff was able to extract himself from the
vehicle. His next memory is standing on the bank of the ditch.
[6]
Police, ambulance and fire personnel attended the scene. Despite the
recommendation of emergency personnel, Mr. Raymer decided not to go to the
hospital. The Soarer was pulled from the ditch and towed to the plaintiff’s
shop. It was heavily damaged and subsequently written off. The plaintiff
first went to see his family physician, Dr. Comeau, on October 21, 2009,
four days after the accident.
C. The Plaintiff’s Evidence
[7]
At the time of the accident, the plaintiff was 52 years of age. He is
now 55. He is married to Audrey Hall. They have been together for about 35
years and have two teenage children, a boy and a girl. They reside in a
four-story duplex in Burnaby. They rented out the other side of the duplex
until 2008 but then took over that additional space for their family. They are
in the process of renovating the other side of the duplex to rent it out again.
[8]
The plaintiff is a self-reliant, physically fit, athletically gifted
person. He is competitive by nature and passionate about sports, particularly
soccer.
[9]
When the plaintiff was in grade six, he was awarded a full scholarship
to the National Ballet School of Canada. He studied in the program for six
years before a leg injury in a skiing accident forced him to give up his
aspirations to pursue dance as a career.
[10]
On his return to Vancouver, the plaintiff apprenticed as an auto
mechanic before opening his own auto restoration business. He is mechanically
inclined, largely self-taught and has traditionally relied on word-of-mouth and
his good reputation in the field to attract business.
[11]
The plaintiff is primarily responsible for the mechanical and electrical
side of his business. The body work is done by his assistant, Grant Hoffman.
[12]
The plaintiff testified, and I accept, that his work is physically
demanding. It requires intense effort in confined spaces, including under the
dashboards of vehicles. It also requires a good deal of weight-bearing
activity. In the course of his work, the plaintiff is obliged to hold his arms
above his head for extended periods while effecting repairs.
[13]
With respect to the accident itself, the plaintiff testified that he "seemed
okay" immediately thereafter and declined transportation to the hospital. He
went to work instead.
[14]
Later that day, the plaintiff noticed that he had an abrasion on his
forehead, which later turned into two black eyes, a sore left hand (with which
he had been holding the stick shift at the time of impact), a bruise on his
right knee, and pain in his neck and lower back. While he tried to work, he
was "uncomfortable" and experienced pain getting up and down off the
ground, including getting on and off the creeper – a rolling flatbed used by
auto mechanics to work underneath vehicles. In addition, the plaintiff noticed
a protrusion in the area of his belly button. This was later diagnosed as an
umbilical hernia, which the defendants admit was caused by the force of the
impact.
[15]
Grant Hoffman, the plaintiff’s auto body repairman, testified that he
was in the shop when the plaintiff arrived after the accident. Although the
plaintiff testified that Mr. Hoffman was not present in the shop when he
got there after the accident, I accept Mr. Hoffman’s testimony on this
point and attribute the inconsistency to the post-accident trauma the plaintiff
was experiencing that day. Mr. Hoffman described the considerable damage
done to the left side of the Soarer and testified that the plaintiff was "shaken
up" and limping. He "looked green". Mr. Hoffman testified
that the plaintiff stayed in the shop until about 4:00 p.m., at which time Mr. Hoffman
drove him home.
[16]
The plaintiff testified that the injuries to his forehead, hand and knee
resolved quite quickly after the accident.
[17]
He continued, however, to have trouble getting up and down from the
creeper because of pain in his neck and lower back. In addition, neck pain
impaired the plaintiff’s ability to complete wiring jobs in the pedal box area
underneath the dashboards of vehicles he was working on. He also testified
that his neck and low-back pain impaired his ability to do mechanical work in
the shop. In the months following the accident, the plaintiff’s pain slowed
him down to "a snail’s pace". He found it frustrating to be suddenly
so slow moving. He explained that auto restorers charge a flat rate per job
and that it is not an option to charge a customer more if the job takes more
time than anticipated. He testified that in order to make money, those who
work in the automobile restoration business cannot "lollygag".
[18]
After the accident, the plaintiff also experienced discomfort
attributable to the umbilical hernia. That discomfort continues and, absent
surgical intervention, will not resolve itself. He testified that he feels it
when he lifts and the hernia is sensitive to touch. The plaintiff consulted with
a specialist in May 2011 but has not yet scheduled a date for surgery.
[19]
The plaintiff testified that following the accident he enlisted the
assistance of Mr. Hoffman to do the mechanical work that he would
ordinarily do and the assistance of another part-time employee, Dan Arsenault,
with tasks that required heavy lifting.
[20]
The plaintiff testified that his symptoms were at their worst for the
first six months following the accident and struggled with pain. He testified
that he did not require the assistance of Mr. Hoffman with mechanical work
in the shop for more than six months after the accident but he still requires
assistance with heavy lifting.
[21]
The plaintiff was an avid skier before the accident. He held season
passes at Grouse Mountain and would enjoy outings there with his family. He
tried skiing once after the accident in the winter of 2011 but experienced
low-back and hip pain. I note Mr. Hoffman also testified that he
occasionally went skiing with the plaintiff and suggested to him on one occasion
after the accident that the two of them go skiing together. He testified that
the plaintiff looked at him "like I was crazy". It is not clear from
the evidence when this conversation occurred.
[22]
The plaintiff did not attempt to resume playing outdoor soccer after the
accident until June 2011. When he did, he experienced excruciating pain in his
left hip 15 minutes into the match. The plaintiff is right-hand dominant, but left
footed. The plaintiff testified that although he had noticed a lack of mobility
in his left leg and changes in his gait since the accident, the pain he
experienced during the game was unlike anything he had felt before. It
eventually forced him to walk off the pitch. The plaintiff testified that his
hip pain subsided about two weeks after the game and did not bother him again
unless he ran hard.
[23]
The plaintiff testified that he attributed his hip pain to a pulled
muscle and assumed it would heal over time. As it did not resolve, and as he
continued to experience low-back and neck pain, he went to see Florence Yip, a
physiotherapist, in December 2011. Before seeing Ms. Yip, he noticed that
his hip was "clunking like two blocks of wood coming together." The
plaintiff testified that Ms. Yip told him something was wrong with his hip
and that he should have it further investigated.
[24]
The plaintiff was subsequently referred for x-rays which led to the
diagnosis of osteoarthritis in his left hip.
[25]
The plaintiff testified that he wanted an MRI to get a more accurate
diagnosis and paid for it himself. The diagnosis of moderate to severe
osteoarthritis in his left hip was confirmed.
[26]
The plaintiff testified that about two years after the accident he felt
his work capacity was 80 to 90 per cent of what it was prior to the accident
but that it fluctuates.
[27]
The plaintiff testified that his neck and low-back symptoms improved
somewhat between the date of the accident and the summer of 2011 but he
continued to experience good and bad days.
[28]
The plaintiff agreed in cross-examination that while he continues to
have limited range of motion in the cervical spine which he describes as
stiffness, his neck has not been painful and is almost back to normal. He also
testified that his back was better until he tried to lift a 70-pound tire a
month before trial and experienced an intense shock of pain. He testified that
he could not remember having back pain in August 2012 and he had no difficulty
with either his neck or back in January 2013, when he was assessed by Dr. McKenzie.
The plaintiff testified that he has been careful not to aggravate or reinjure
his neck and back.
[29]
In cross-examination, the plaintiff refused to agree with a suggestion
that his neck and low-back injuries have completely resolved. He agreed that
both have improved and some days he feels good but that he still occasionally
experiences pain, as he did when he recently attempted to lift the 70-pound
tire. The plaintiff testified that he aggravated his low-back pain on three
other occasions since June 2011 when lifting or shovelling gravel or snow.
[30]
I would note that on his examination for discovery in August 2012, the
plaintiff testified that his neck and back were "good" and that
neither hurt. When asked if his neck and back were 100 per cent, the plaintiff
replied that while his doctor says he continues to have a limited range of
motion of the right side of his neck, he feels much better. When asked if he
had neck and back pain "now or not really", the plaintiff replied, "not
really".
[31]
The plaintiff testified that physiotherapy has helped him a lot with his
neck and back pain but not with his hip condition.
[32]
The plaintiff confirmed that his worst ongoing complaint is left hip
pain. The symptoms associated with his osteoarthritis have worsened since the
end of 2011 or beginning of 2012. He now occasionally experiences sudden,
excruciating hip pain while standing. He treats the symptoms with Advil and
ice. He also goes for acupuncture on his hip, which numbs the joint and allows
him to play some soccer. He testified that he is also taking glucosamine and
the symptoms associated with his hip condition have plateaued. While he is a
candidate for hip replacement surgery, he testified that he will postpone
having surgery and deal with the pain as long as he can to continue playing
sports.
[33]
The plaintiff testified that he now does fewer household chores and
repairs around the house and regards time at home as pure recovery time in
order to preserve his energy and strength for work.
[34]
The plaintiff testified that his business is struggling now and that
while he has work waiting to be done, he is having trouble finishing tasks
because he is not as productive as he once was.
[35]
The plaintiff has always paid himself $33,600 annually from his
business. His income has not changed since the accident.
[36]
The plaintiff’s sales from services rendered as reported on his
corporate income tax return have fluctuated but remained relatively stable in
the years before and after the accident. In 2006, he reported sales of $69,594
and gross profit of $46,351. In 2007, he reported sales of $53,428 and gross
profit in the same amount. In 2008, he reported sales of $68,342 and gross
profit of $66,628. In 2009, he reported sales of $63,369 and gross profit of
$54,702. In 2010, he reported sales of $54,324 and gross profit of $80,483. The
plaintiff testified that he finished and was paid for a big job in 2010. In
2011, the plaintiff reported sales of $54,739 and gross profit in the same
amount. In 2012, he reported sales of $58,199 and gross profit in the same
amount.
[37]
The plaintiff agreed in cross-examination that he has paid his
assistant, Grant Hoffman, along with his other part-time help, the same amount
in wages since the accident. He testified that their wages did not change –
what changed was the nature of the work they were doing. While Mr. Hoffman
had done bodywork almost exclusively in the past, after the accident he
assisted the plaintiff with mechanical work for about six months. Mechanical
work had been the exclusive domain of the plaintiff prior to the accident.
[38]
The plaintiff testified that the downturn in the economy did not have
much of an effect on his business. While he continued to have work, he was
struggling to be as productive as he once was and was having difficulty
completing the work in as timely a fashion as he did before the accident.
[39]
The plaintiff testified that the other side of the duplex in which the
plaintiff resides with his wife and two children is being renovated for rent
because the family is now struggling financially. The plaintiff’s office,
which was on the side of the duplex to be rented, has been moved into the master
bedroom.
C. The Evidence of
the Plaintiff’s Wife
[40]
Audrey Hall testified that the plaintiff is "not the same guy"
since the accident. She testified that his back hurts and he does not do
things around the house or with the children to the extent that he did before
the accident.
[41]
Ms. Hall testified, as did the plaintiff, that they took on an
additional $20,000 in debt by refinancing their property in August 2010. She
testified that they refinanced their home in order to pay for ongoing living
expenses.
[42]
She testified that renovations on the other side of the duplex will be
completed by July 2013 and that the suites will be rented out because they need
the money. She testified that the plaintiff started the renovations but has
since hired others to complete the work. She testified that, but for the
accident, the plaintiff would have done the work himself as he is a very
capable handyman. As a result of renting out the other half of the duplex, she
testified that the family will lose space and privacy, and her daughter will
lose her bedroom.
[43]
Ms. Hall stayed home after the birth of their second child but went
back to work in September 2011. She admitted that she may have gone back to
work anyway and that even though she had not been actively looking for
employment, this opportunity, which she considered to be a good one and
consistent with her values, essentially fell into her lap.
[44]
She testified that there is tension in the household now, attributable
to financial pressures the family is facing.
[45]
Ms. Hall also testified that before the motor vehicle accident, the
family would sometimes play hacky sack together. Hacky sack is a game which
involves two or more players who try to keep a small foot bag off the ground
without using their hands. She testified that the family does not play this
game together anymore. The plaintiff tried to play again this past Easter but
was unable to do so.
[46]
Much of the testimony of Ms. Hall was directed to the condition and
behaviour of the plaintiff now. She testified that he comes home now and is
tired and exhausted. He participates less in family life. Everyone in the
house tries to give the plaintiff the space he needs because they know he is in
pain. While the plaintiff was "super strong" and "full steam
ahead on everything" before the accident, his condition has deteriorated
and she sees him now in pain with tears welling up in his eyes.
[47]
Ms. Hall also testified that the plaintiff’s injuries have impacted
on the intimacies they previously enjoyed as a couple. She was clear in her
evidence that this emerged as an issue in their relationship shortly after the
motor vehicle accident. She testified that while the plaintiff is reluctant to
admit to experiencing pain or complain, it is difficult for him because he is
very sore, including in the area of his umbilical hernia. In the last seven or
eight months, the plaintiff has taken to sleeping on a La-Z-Boy chair
downstairs because he is not comfortable sleeping in their bed.
[48]
In cross-examination, Ms. Hall testified that she had no
recollection of the plaintiff reporting to her that he was experiencing left
hip pain prior to June 2011 – the month the plaintiff resumed playing outdoor
soccer and experienced excruciating pain. She has no recollection of him being
pain free after this date.
D. The Evidence of
the Plaintiff’s Soccer Teammates
[49]
Joel Grymaloski, a clinical psychologist by profession, has played
soccer with the plaintiff for over 20 years. The plaintiff is one of the
organizers of the games. He described the group of men who come out to play
indoor and outdoor soccer as a sort of fraternity.
[50]
He testified that the plaintiff was perhaps the most athletic player in
the group. Since the accident, he testified that the plaintiff is "half
the man he used to be" and "not as joyful as he was". He is not
as fast, does not tackle as aggressively as he once did, and does not stay on
the field nearly as much. Unfortunately, the evidence is unclear as to when
these observations were made. Mr. Grymaloski testified that the plaintiff
did not play soccer for some time after the accident and that the first time he
saw the plaintiff playing soccer after the accident was at an indoor game. The
indoor season starts in September and runs through until April or May. On all
the evidence, I infer that Mr. Grymaloski first saw the plaintiff playing
indoor soccer after the accident in the fall of 2010 or spring of 2011.
[51]
Mr. Grymaloski testified that Mr. Raymer complained to him of
hip pain and that this was the only complaint specifically identified by the
plaintiff. He was fairly certain that each time the plaintiff complained to
him about pain he specifically mentioned hip pain. He had no recollection of
the plaintiff making more generalized complaints of body pain but pretty much
always attributed the discomfort he was experiencing to his hip.
[52]
Philip Cote provided similar evidence. He, too, has played soccer with
the plaintiff for 20 years and knows the plaintiff to be a quick, aggressive
and skilled player. Mr. Cote testified that he saw the plaintiff play at
an indoor soccer game probably within a year of the accident and observed that
he was "not the person or soccer player I knew him to be". He has
played indoor soccer with the plaintiff eight to ten times since the accident.
The plaintiff either quits or substitutes out of the game. He did neither
prior to the accident.
[53]
Mr. Cote testified that the plaintiff’s soccer-playing ability has
continued to decline. He last saw the plaintiff playing outdoor soccer in
about 2011. He testified that the plaintiff was noticeably wincing during play
and said that his hip was injured. Aside from the hip injury, the plaintiff
never mentioned to Mr. Cote any other specific complaints.
E. The Evidence of
Grant Hoffman
[54]
Grant Hoffman has worked in the plaintiff’s shop since the mid-1990s as
an auto body repair technician.
[55]
Mr. Hoffman testified that he knew the plaintiff was in grave pain
after the accident but that the plaintiff is not a complainer and just "sucks
it up".
[56]
Mr. Hoffman testified that for two weeks following the accident,
the plaintiff came into work but did nothing. He would prop himself up on a
bench and repeatedly ask Mr. Hoffman for Advil. Mr. Hoffman
testified that the plaintiff was "not with it". Mr. Hoffman
testified that three months after the accident the plaintiff, who was usually a
happy person, was miserable. He recalled that there was a period of six months
to a year after the accident when the plaintiff did not touch a tool and could
not do the mechanical work he usually did in the shop. During this time, the
plaintiff had Mr. Hoffman do the mechanical work. Mr. Hoffman
testified that a year after the accident the plaintiff was still miserable,
complaining about pain and not climbing under cars or doing over fender work.
[57]
In cross-examination, Mr. Hoffman testified that the plaintiff
slowly began doing the mechanical work again but still required help. He then
testified that he thought this occurred about 12 to 24 months after the
accident.
[58]
Mr. Hoffman testified that prior to the collision the plaintiff
would design and build parts necessary to complete a restoration project. Now,
the plaintiff designs the template and has Mr. Hoffman make the parts. In
addition, the plaintiff does not use the creeper anymore because of the
difficulty he experiences in getting up from it. Instead, the plaintiff now
uses a hoist to work underneath vehicles. Mr. Hoffman recalled one
occasion sometime after September 2011 when he had to give the plaintiff
assistance getting up from the floor of the shop. Mr. Hoffman also
testified that the plaintiff no longer does work in the pedal box area of
vehicles underneath the steering wheel.
[59]
Mr. Hoffman testified that the plaintiff is less agile, energetic
and positive in his outlook than he was before the accident. He testified that
the plaintiff now sits in the shop "not doing much".
[60]
Mr. Hoffman testified that while his duties changed after the
accident, the hours that he worked and his income remained the same until 2011.
[61]
Mr. Hoffman testified that until 2011 he averaged about $29,000 a
year and that the majority of his income came from work in the plaintiff shop.
His tax returns confirm that his annual income is in the range of $29,000 a
year. In 2011, Mr. Hoffman’s income dropped to $21,500. He testified
that his income in 2012 was about $20,000.
[62]
Mr. Hoffman testified that in 2011 he started looking for other
work because the plaintiff’s business was suffering and no new work was coming
in. He noticed work starting to get slower about six months after the accident.
I note that his evidence on this point conflicts with that given by the
plaintiff that business continued to be good after the accident but that he was
struggling to be as productive as he was before it occurred.
[63]
Mr. Hoffman testified that he has spent very little time so far
this year working in the plaintiff’s business and most of his time working at
another auto body shop.
[64]
In cross-examination, Mr. Hoffman was asked to explain why his
income declined in the years between 2010 and 2012 when, according to his work
calendar, he put in more hours in the plaintiff’s shop in 2012 than he did in
2010. Mr. Hoffman explained that he continued to work on projects to keep
busy, including on a vehicle owned by the plaintiff, but was not being paid for
his services.
[65]
In 2012, Mr. Hoffman brought two automobile renovation projects to
the plaintiff’s shop. Mr. Hoffman is paying the plaintiff for services
the plaintiff is providing in relation to these two projects. Mr. Hoffman
testified he had never done this before and that it represents a complete role
reversal given that the plaintiff had previously brought in the work and paid Mr. Hoffman
for his services. The plaintiff gave similar evidence on this point.
F. The Medical
Evidence
(a) Dr. Comeau
[66]
Dr. Comeau, the plaintiff’s family physician for the past 28 years,
saw the plaintiff four days after the accident. In addition to transient bumps
and bruises, she diagnosed soft tissue injuries to the plaintiff’s neck and low
back as well as a post-traumatic, egg-sized, umbilical hernia.
[67]
Dr. Comeau prepared a medical-legal report concerning the plaintiff’s
injuries, which was introduced in evidence at trial.
[68]
Dr. Comeau is aware of the plaintiff’s love of soccer and testified
that the time frame for the plaintiff’s return to playing soccer was "not
on the table in the early days" following the accident. She told him to
go slowly.
[69]
On September 15, 2010, approximately one year after the accident, the
plaintiff continued to report to Dr. Comeau symptoms associated with his
neck, lower back and hernia. The plaintiff reported that his neck and
umbilical hernia symptoms were essentially unchanged but that his low-back pain
had significantly improved, at least in terms of its frequency. The plaintiff
advised that his low-back pain could still be severe at times. The plaintiff
also informed Dr. Comeau that he had returned to his pre-accident level of
work capacity in July 2010, although he continued to experience discomfort with
certain types of work-related activities.
[70]
By March 16, 2011, about 17 months after the accident, the plaintiff
reported that his neck pain, although still not entirely gone, was much less
intense and that his back was almost back to normal.
[71]
On November 10, 2011, the plaintiff attended Dr. Comeau’s offices
for his two-year post-accident checkup. The plaintiff reported that he was
still experiencing neck pain with certain work duties and household chores. In
addition, the plaintiff advised that following his visit in March 2011, he
attempted to resume doing some of the things he had been unable to do after the
motor vehicle accident. He experienced significant back pain with these
activities which interfered with his work and recreational pursuits.
[72]
On January 12, 2012, two years and three months after the accident, the
plaintiff reported to Dr. Comeau that with physiotherapy his neck pain had
eased a bit but his low-back pain persisted. There was no change in the status
of his umbilical hernia.
[73]
Dr. Comeau reported that an x-ray done on the plaintiff’s left hip
in January 2012, which was ordered following his attendance for physiotherapy,
showed moderate to severe arthritic degeneration of that joint. As noted
above, a follow-up MRI confirmed those findings.
[74]
The plaintiff was last seen by Dr. Comeau on August 3, 2012, two
years and nine months after the accident. The plaintiff reported that his neck
symptoms had greatly improved with physiotherapy and that the only remaining
symptom in this area concerned a slightly reduced range of motion. He also
reported that his low-back was much improved, although he still noticed pain
with heavy use which he experienced about once a week.
[75]
Dr. Comeau reported that the plaintiff’s prognosis was complicated.
She summarized her conclusions in this way:
[His] neck and
low back may fully resolve but may be affected by his ongoing problem with his
left hip, which will not resolve. The hernia and left hip problem will not
resolve, and both may require surgery. I note the following considerations:
1. He
still carries the risk of future surgery for his umbilical hernia, which
represents, at its worst, a risk of death (operations under general anesthetic
always carry this risk), as well as the risk of complications like infection or
failed wound healing from the surgery itself. Also, there’s the recovery
period, which would entail time off work, especially for a hernia in a patient
whose work is physical, and the resultant loss of income, as well as the pain
while recovering, and the loss of his help to his family during this period.
Finally, with regard to this, he carries a risk of emergency surgery if the
hernia twists (this is life-threatening without surgical intervention) for as
long as he goes without surgery.
2. I
anticipate that his neck and low back will eventually fully recover from the
injuries sustained in this MVA, and, indeed, are nearly there. I do note,
however, that he has needed to work hard at rehab physiotherapy and will need
to continue to do so for some time to get back into his pre-MVA shape…
3. He will, unfortunately, continue
to have difficulty with his left hip, and the specialist makes note that he
eventually will need major surgery to replace the joint.
[76]
Dr. Comeau testified that the plaintiff’s neck and low-back
injuries had not fully resolved when she saw him for the last time in August
2012.
(b) Dr. McKenzie
[77]
The plaintiff was examined by Dr. McKenzie at the defendant’s
request on January 29, 2013. Dr. McKenzie is an orthopedic surgeon and a
Clinical Assistant Professor in the Orthopedics Department of the Faculty of
Medicine at the University of British Columbia.
[78]
Dr. McKenzie’s report reflects that the plaintiff complained to him
only of left hip pain and an umbilical hernia. He confirmed in his testimony
that the plaintiff mentioned no additional symptoms that were not addressed in
his report.
[79]
In Dr. McKenzie’s medical-legal report, he notes that on physical
examination the plaintiff was observed to have some mild loss of range of
motion of the cervical spine but that this was considered to be normal for his
age. In addition, the plaintiff had mild tenderness in the paraspinal
musculature but advised Dr. McKenzie that he was not experiencing neck
pain. The lumbar spine showed a full range of motion. The plaintiff had some
tenderness on palpation in the midline at L4 but advised Dr. McKenzie that
he was not experiencing pain in this area.
[80]
Dr. McKenzie provided the following assessment of the plaintiff’s
injuries in his report:
In my opinion
with the accident of October 17, 2009 this man did have an injury to his neck,
his lower back as well as left hand and knee. Those problems have all
completely resolved. In my opinion he will not have any long-term problems in
his right knee, left hand, lower back or neck as a result of this motor vehicle
accident.
His only current
symptoms are in the left hip. In my opinion his left hip osteoarthritis and his
current symptomatology has not been caused by the motor vehicle accident
In my
opinion this man had some pre-existing but asymptomatic arthritic changes in
his left hip. In my opinion that became symptomatic in the normal timeframe
unrelated to the accident
In other words, in my opinion the symptoms
that he is currently having in his left hip as well as the issues that he is
having with regards to his house and yard work and his recreational activities
are unrelated to the motor vehicle accident and are solely due to the arthritic
left hip which has neither been caused by nor aggravated by this motor vehicle
accident.
[81]
Dr. McKenzie testified that at the time of the examination, he
specifically asked the plaintiff about ongoing neck and back pain and did not
move him along quickly through the appointment or prevent him from fully
describing his symptoms. Dr. McKenzie testified that the plaintiff told
him the physiotherapy he received was immensely helpful and that his neck and
back had been asymptomatic for a number of months and had resolved.
[82]
Dr. McKenzie testified that of those patients who continue to be
symptomatic two years after an event, about 70 per cent will remain the same,
15 per cent will get worse, and 15 per cent will get better.
[83]
Dr. McKenzie also testified that determining whether a person’s
pain symptoms are related or unrelated to a previous accident comes down to an
assessment of that person’s exact case history. If a person never returns to
normal following an injury and subsequently experiences pain in the same area,
it is likely attributable to the original injury-causing event. If, on the
other hand, that same person is asymptomatic for six months, and then
experiences pain, it is more likely that the pain is attributable to a new
event.
[84]
Dr. McKenzie further testified that low-back pain can be triggered
by osteoarthritis of the hip.
G. Credibility Findings Respecting the Evidence
of the Plaintiff and Grant Hoffman
[85]
The plaintiff gave his evidence in a straightforward and candid fashion.
In addition to the umbilical hernia, I have no doubt that he suffered soft
tissue injuries to his low-back and neck in the accident and that those
injuries seriously impaired his ability to do the work he had done in the past
for about six months after the accident.
[86]
I do not believe that the plaintiff exaggerated the nature or extent of
the pain he has experienced since the accident. He is stoic by nature, a
person who is unlikely to complain to others about his ailments, and an
individual who takes great pride in his athleticism and ability to heal on his
own. His evidence was supported by the testimony of Grant Hoffman, his soccer
teammates and his wife, Audrey Hall.
[87]
The difficulties in this case arise as a consequence of the need to
distinguish between the injuries the plaintiff sustained in the motor vehicle
accident and the pain he has experienced since the summer of 2011 with the
natural advancement of his left hip osteoarthritis.
[88]
Despite the testimony of Dr. McKenzie and the agreement of counsel
at the conclusion of the trial that the evidence does not establish that the
plaintiff’s ongoing left hip pain was caused by the accident, I have no doubt
that the plaintiff sincerely believes that his hip pain, or some of it, is
attributable to the collision. I do not believe that the plaintiff’s
continuing belief in this regard or his evidence on this point in any way
detracts from his credibility as a witness. It is understandable that the
plaintiff, whose business and personal life has been negatively impacted, first
by the accident and then by the natural progression of his osteoarthritis, is
frustrated and concerned about what the future may hold for him and his family.
[89]
There are only two aspects of the plaintiff’s evidence that I do not
accept. First, the plaintiff testified that Dr. Comeau "blew him off"
when he attempted to report to her some of the early symptoms he was
experiencing with respect to his hip. Second, the plaintiff testified that Dr. McKenzie
never asked him about any complaints he had other than those related to his hip
and umbilical hernia. It was clear to me that Dr. Comeau cares very much
about the plaintiff’s well-being. I do not accept the plaintiff’s evidence on
this point and attribute it to his understandable frustration with the
situation he finds himself in. Further, I am satisfied that Dr. McKenzie,
who spent 45 minutes taking an oral history from the plaintiff and 20 minutes
physically examining him, specifically asked the plaintiff about whether he was
experiencing ongoing symptoms in relation to his neck and back and did not move
the plaintiff away from these areas or in any way shut him down or prevent him
from fully describing his condition.
[90]
With respect to Mr. Hoffman’s testimony, I note that he is a good
friend of the plaintiff. Mr. Hoffman was anxious to assist the plaintiff
in the advancement of his claim and, on some points, his evidence reflected
this motivation. For example, Mr. Hoffman adhered to the view that the
plaintiff was unable to do much of anything, including the mechanical work in
the shop, for one to two years after the accident. His evidence with respect
to the duration and extent of the plaintiff’s disability by far exceeds the
plaintiff’s own account. I do not consider that Mr. Hoffman was
deliberately embellishing the extent of the plaintiff’s injuries in order to
assist him in this litigation. Rather, I believe that his evidence was the
product of the empathy he feels for his friend and an unconscious human desire
to portray events in such a way as to assist in alleviating his friend’s
burden.
H. Factual Findings
[91]
I make the following findings of fact with respect to the injuries
suffered by the plaintiff in the automobile accident of August 17, 2009:
1.
In addition to the umbilical hernia which was caused by the accident,
the plaintiff sustained abrasions to his forehead, left hand and right knee
that healed quickly, and fairly significant soft tissue injuries to his neck
and low back that did not;
2.
The more significant of these latter injuries prevented the plaintiff
from doing his regular work, at his usual level of productivity, for about six
months;
3.
The plaintiff continued to experience, on a fairly regular basis,
symptoms associated with these injuries for about 18 – 24 months after the
accident;
4.
Since that time, and with therapy, the plaintiff’s neck and low back
have returned to something very close to normal, save for intermittent and
non-debilitating bouts of low-back pain he occasionally experiences when
lifting heavy objects;
5.
The occasional discomfort the plaintiff has experienced in his low back
when lifting is now overshadowed by the ongoing and intense hip pain he began
experiencing in the summer of 2011 and will continue to experience as a
consequence of the progression of his arthritic condition;
6.
The plaintiff’s occupation requires him to engage in strenuous physical
activity, including lifting, and it is likely that he will continue to suffer
future intermittent bouts of non-debilitating, work-related, low-back pain
attributable to the accident. I do not consider this finding to be in any way
inconsistent with the evidence of Dr. McKenzie. It is not surprising that
in the face of increasingly frequent and intense hip pain, the plaintiff would
fail to report intermittent neck or low-back pain he may not have experienced
for some time when he was examined by Dr. McKenzie in 2013. At the same time,
the plaintiff’s report to Dr. McKenzie and the evidence he gave on his
examination for discovery confirms that any neck or low-back pain he currently
experiences is intermittent, non-debilitating and arises only when he engages
in very heavy work-related lifting;
7.
The plaintiff’s hernia continues to cause him discomfort in his daily
activities and it would certainly be prudent for the plaintiff to have this
issue addressed surgically;
8.
The injuries described above impaired the ability of the plaintiff to
pursue his recreational interests, including his passion for soccer, for about
18 months;
9.
For about 18 – 24 months following the accident these injuries also
impaired the plaintiff’s social and familial relationships, including with his
wife;
10.
The plaintiff’s left hip osteoarthritis became symptomatic in the summer
of 2011 and, save for intermittent and non-debilitating bouts of back pain
brought on by heavy work-related lifting, the physical barriers and social and
interpersonal impairments the plaintiff has experienced since that time, many
of which were detailed by Ms. Hall in her testimony, are wholly
attributable to his arthritic condition and not to the motor vehicle accident.
I. The Assessment
of Damages
(a) Non-Pecuniary
Damages
[92]
Non-pecuniary damages are awarded for intangible losses, such as pain
and suffering, loss of amenities and loss of enjoyment of life. Such damages
are, by their nature, not susceptible to scientific itemization. The award
must be fair and reasonable to both parties. Fairness takes its meaning from
awards given in comparable cases, although each case is unique and will turn on
its own particular facts.
[93]
The factors to be considered in assessing non-pecuniary damages were
reviewed in Stapley v.Hejslet, 2006 BCCA 34 at para. 46. They
include: the age of the plaintiff when the injury was sustained; the nature of
the injury; the severity and duration of the pain associated with that injury;
any disability or emotional suffering arising from the injury; impairment of
life, family, marital and social relationships; impairment of physical
abilities; and loss of lifestyle. The stoic plaintiff should not, generally
speaking, be penalized in assessing damages under this head: Giang v.
Clayton, 2005 BCCA 54.
[94]
The plaintiff submits that an award for non-pecuniary damages in the
range of $85,000 would be appropriate in this case. In support of this
position he relies on Borgfjord v. Penner, 2010 BCSC 1809, Garcha v.
Duenas, 2011 BCSC 365, Jackson v. Mongrain, 2010 BCSC 1866 and Ortega
v. Pena, 2012 BCSC 1884.
[95]
The defendants submit that a fair assessment of non-pecuniary damages in
this case would be reflected in an award in the range of $25,000. In support
of their position, the defendants rely on Manson v. Kalar, 2011 BCSC 373,
Olianka v. Spagnol, 2011 BCSC 1013, Gendron v. Moffat, 2010 BCSC
1231 and De Abreu v. Huang, 2013 BCSC 398.
[96]
While I am satisfied that the plaintiff’s ongoing pain, and the source
of his current physical and work-related barriers, as well as his social and interpersonal
impairments, are attributable to the progression of osteoarthritis in his left
hip, I am also satisfied that the soft tissue injuries caused by the accident
significantly affected the plaintiff’s enjoyment of life for about 18 months. In
short, I am satisfied that the impact of the accident on the plaintiff was
considerable even before his osteoarthritis became symptomatic.
[97]
Specifically, I accept that the plaintiff was in considerable physical
distress, particularly in the six months following the accident. He was unable
to ski or pursue his passion for soccer for about 18 months because of the
injuries he sustained in the accident. For the plaintiff, this was not simply
the loss of an opportunity to engage in physical activity. The plaintiff lost
access to the fellowship that goes along with participation in team sports. In
addition, the plaintiff is a person who derives considerable self-worth from
excelling in competitive sports – something he could not do in the 18-month
period following the accident. As noted above, I am also satisfied that the
motor vehicle accident had an impact on the plaintiff’s social life and
familial relationships, including with his wife. While the plaintiff continues
to experience these challenges, which are no longer attributable to the
accident but to the advancement of osteoarthritis, I am satisfied that for the
first 18 months or so following the accident, the discomfort he experienced
resulted in loss of enjoyment of life which must be reflected in the award for
non-pecuniary damages. Finally, the plaintiff requires surgery to repair his
umbilical hernia. I am satisfied that the plaintiff will eventually have this
surgery and experience the anxiety and risks associated with that procedure as
well as the discomfort and isolation associated with recovering from it.
[98]
In my view, the plaintiff’s claim for damages under this head is
inordinately high and factors in considerations attributable not to the
accident but to the progression of his osteoarthritis. At the same time, I am
of the view that the defendant’s position on the issue of non-pecuniary damages
does not fully reflect either the nature or extent of the plaintiff’s injuries
that were caused by the accident or the degree to which those injuries have
impacted on his life.
[99]
In light of these factual findings, I conclude that $60,000 is an
appropriate award for non-pecuniary damages.
(b) Loss
of Past Earning Capacity
[100] An award
of damages for loss of earning capacity, whether in the past or for the future,
represents compensation for a pecuniary loss. The goal is to restore the
plaintiff to the position he would have been in but for the defendant’s
negligence. Accordingly, compensation for past loss of earning capacity is to
be based on what the plaintiff would have earned but for the accident-related
injuries: Rowe v. Bobell Express Ltd., 2005 BCCA 141; M.B. v.
British Columbia, 2003 SCC 53.
[101] The
plaintiff claims $35,000 for loss of past earning capacity from the date of the
accident to the date of trial as a consequence of the injuries he sustained in
the accident. Counsel for the plaintiff acknowledges that the plaintiff’s
financial picture is not easily quantified and argues that a capital asset
approach to the calculation of Mr. Raymer’s loss of capacity is most
appropriate. He notes that the effect of the accident was to slow production
in the plaintiff’s shop. Work traditionally done by the plaintiff was
re-assigned to Mr. Hoffman. Counsel for the plaintiff suggests that a
past loss of earning capacity is supported by the evidence of the plaintiff and
Mr. Hoffman, as well as by the evidence of diminishment in the plaintiff’s
sales following the accident and the fact that the plaintiff and his wife had
to refinance their home in 2010 to the extent of $20,000 to pay their bills.
[102] Counsel
for the defendants submits that, taken as a whole, the evidence does not
support a finding that the plaintiff’s soft tissue injuries and umbilical
hernia resulted in a past income loss. He submits that the plaintiff was able
to avoid a loss by redeploying Mr. Hoffman and Mr. Arsenault to other
tasks until he was able to resume his usual work. He submits that there is no
evidence that either Mr. Hoffman or Mr. Arsenault worked longer hours
or was paid more by the plaintiff between the accident and the date of trial. Further,
he reminds me of the plaintiff’s evidence that there has not been a significant
change in the amount of work available to him since the accident, at least
until very recently. Finally, he submits that while there have been
fluctuations from year-to-year in revenue and gross profits as reflected on the
plaintiff’s corporate tax returns, the plaintiff’s corporate earnings do not
account for the dire financial straits the plaintiff and Ms. Hall testified
they experienced in 2010 when they refinanced their property.
[103] The
plaintiff has satisfied me on the evidence that he lost income from his
business that would have been earned had the accident not occurred. Specifically,
I am satisfied that the plaintiff’s capacity to turn around work projects was
impaired for a six-month period following the accident because of the injuries
he sustained in the collision. This conclusion is supported by the evidence of
the plaintiff and Mr. Hoffman. In addition, it is confirmed by evidence
demonstrating some diminution in the plaintiff’s revenue from sales between
2009 and 2011. In my view, it is not an answer to say that the plaintiff’s
revenues fluctuated but remained fairly stable in those years. I am satisfied
that the plaintiff had work available to him and that his sales revenues would
have been higher, particularly in 2010, had the accident not occurred.
[104] In my
view, however, the evidence does not support the submission of the plaintiff
that $35,000 should be awarded for past loss of income. It would amount to
awarding the plaintiff close to 50 per cent of the gross sales of his best year
between 2006 and 2012. It would effectively compensate the plaintiff for a
much greater degree of work-related disability than has been shown to have
resulted from the accident.
[105] I am
satisfied, however, that the plaintiff’s capacity to earn income was impaired
by about 50 per cent for the first six months following the accident. As the
plaintiff’s sales revenues were in the range of $5,000 per month in 2009 and
2010, I am satisfied that the plaintiff lost gross revenues of about $15,000
($2,500/month x six months). As the defendants are only liable for net income
loss, I would award the plaintiff $11,250 for past loss of income.
(c) Loss
of Future Earning Capacity
[106] To obtain
an award for loss of future earning capacity, the plaintiff must demonstrate
both an impairment of his earning capacity resulting from the injuries he
sustained in the accident as well as a real and substantial possibility that
this diminished earning capacity will result in a pecuniary loss. If the
plaintiff discharges that requirement, he may prove quantification of that loss
of earning capacity either on an earnings approach or a capital asset approach:
Perren v. Lalari, 2010 BCCA 140 at para. 32.
[107] The
assessment of damages is a matter of judgment, not calculation. Nevertheless,
the award involves a comparison between the likely working life of the
plaintiff 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. Insofar as possible, the
plaintiff should be put in the position he 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.
[108] Counsel on
behalf of the plaintiff submits that a capital asset approach to the
calculation of the plaintiff’s loss of future earning capacity is appropriate
in this case. He argues that an award of $70,000 would adequately reflect his
loss of capacity to earn income in the future. The plaintiff submits that the
injuries he suffered in the accident and, in particular, his persistent
low-back pain, have impaired his efficiency and limited his ability to get in
and out of cars and work underneath them. He submits that as a result of his
accident-related injuries he has been rendered less capable overall of earning
income, less marketable as a potential employee, he has lost the ability to
take advantage of all job opportunities that might otherwise have been open to
him, and he is less valuable to himself as a person capable of earning income
in a competitive labour market.
[109] Counsel
for the defendants submits that, save for a short recovery period following
surgical repair of the plaintiff’s umbilical hernia, the evidence at trial does
not support a real and substantial possibility of future income loss
attributable to any of the plaintiff’s accident-related injuries. He submits
that if there is any future income loss or loss of earning capacity, it will be
caused by the progression of the plaintiff’s left hip degenerative
osteoarthritis – a debilitating condition not caused by the defendant’s
negligent act but by a pre-existing condition, which became symptomatic in the
normal time frame.
[110] I should
note that the parties are agreed that if the plaintiff determines to undergo
surgery to repair his umbilical hernia, he will need one month of post-surgical
recovery time.
[111] In my
view, and except for the surgery required to address the plaintiff’s umbilical
hernia, the evidence does not support a real and substantial possibility that
the injuries the plaintiff suffered in the accident will give rise to a future
loss of earning capacity.
[112] Dr. Comeau
reported in November 2012 that she anticipated the plaintiff will eventually
fully recover from the neck and low-back injuries he sustained in the accident
and that he is "nearly there". She testified that the plaintiff was
back to full working capacity at the time of the trial, but perhaps not with
full comfort. As I understand Dr. Comeau’s evidence, while the plaintiff
may continue to experience some non-debilitating, low-back pain with strenuous
lifting in the future, his future working impairments would be attributable to
his degenerative hip condition. Consistent with this, Dr. McKenzie
testified that the plaintiff reported experiencing no ongoing neck or back pain
at the end of January 2013. I note, as well, that in his examination for
discovery on August 28, 2012 the plaintiff confirmed that apart from some
limited range of motion in his neck, his neck and back were "good"
and that neither were causing him pain. Further, the plaintiff acknowledged in
his evidence that his back and neck pain eventually got better with therapy,
but that his hip did not.
[113] I
recognize the plaintiff testified that two years after the accident (October
2011) his work capacity was about 80 to 90 per cent of what it was before the
accident. I do not doubt the plaintiff’s evidence on this point. It must be
recalled, however, that by October 2011 the plaintiff was experiencing
increased symptoms associated with the progression of his osteoarthritis. I am
satisfied that, by this time, any diminution in the plaintiff’s working
capacity was attributable to the advancement of his arthritic condition, not
the soft tissue injuries he suffered in the accident.
[114] Against
this body of evidence as a whole, I cannot find that the plaintiff will suffer
a future income loss attributable to the neck and low-back injuries he
sustained in the accident. Although the plaintiff may well experience a loss
of future earning capacity attributable to the progressive deterioration of his
arthritic left hip, the defendants did not cause or contribute to that
condition and are not liable for any future income loss flowing from it.
[115] I am
satisfied, however, that the plaintiff will, at some point in the course of his
working life, undergo surgery to address the umbilical hernia caused by the
accident. I accept his evidence that he has not done so to date to avoid
triggering an income loss he can ill afford. As noted above, the parties are
agreed that the plaintiff will need one month to recover from this surgery. He
will not be working during this time. Accepting that the plaintiff’s revenues
from sales are in the range of $5,000 per month, I award this amount for loss
of future earning capacity.
[116] As the
plaintiff has not established that there is a substantial possibility of a
future income loss attributable to any of his other accident-related injuries,
his claim for loss of future earning capacity must otherwise be dismissed.
(d) Cost
of Future Care
[117] The
plaintiff seeks a modest $2,000 award for the cost of future care. Specifically,
he seeks compensation for future physiotherapy treatments he says he will need
to address the occasional aggravation of his low-back injury.
[118] The
defendants submit that the medical evidence does not establish a future care
claim for physical therapy for any of the soft tissue injuries sustained by the
plaintiff in the accident.
[119] I am
satisfied that the plaintiff will experience occasional, non-debilitating
low-back pain in the future due to the physically demanding nature of his work.
Given the persistence of the plaintiff’s soft tissue injuries in this area and
the occasional aggravation with lifting he has experienced since the accident,
I am satisfied that the plaintiff will experience a relatively small,
accident-related pecuniary loss relating to future physiotherapy treatments
directed at his low-back. I consider the plaintiff’s claim to be reasonable
and justified on the evidence. I award $2,000 for the cost of future care.
(e) Special
Damages
[120] The
plaintiff claims $4,293 in special damages attributable primarily to
physiotherapy treatments he received and paid for out of his own pocket between
December 2011 and April 2013. Included in this claim is a bill for $895
representing the cost of the MRI undertaken on February 28, 2012 and paid for
by the plaintiff to further investigate his left hip condition. I note that
the plaintiff undertook this further diagnostic step after x-rays taken in
January 2012 confirmed that he was suffering from moderately severe left hip
osteoarthritis. He testified that the symptoms he experienced for the first
time in June 2011 were intense and unlike anything he had felt before. He
testified that he felt that he needed an MRI to confirm the diagnosis. In
addition, it is clear from the plaintiff’s evidence that he wanted an MRI, and
was prepared to pay for it himself, to further investigate whether the sudden
onset hip pain he experienced in June 2011 was in some way connected to the
injuries he sustained in the accident.
[121] Counsel
for the defendants’ agrees that an award of special damages should be made but
submits that the plaintiff’s last five visits to his physiotherapist were
primarily for treatment of his hip and that the cost of those five treatments
should be backed out of the special damages award. In addition, he submits
that the MRI paid for by the plaintiff was not a medically necessary test and
could, in any event, have been arranged in time within the public health care
system at no cost to the plaintiff. He submits that the plaintiff simply
directed his own medical care because he refused to believe what the results of
the x-ray unequivocally told him – that his left hip pain was attributable to
osteoarthritis.
[122] I do not
accept the position of counsel for the defendants on either of these two points.
First, the evidence of the physiotherapist, Florence Yip, was that at least
some treatment was provided on every appointment, including all of the last
five, to the soft tissue injuries the plaintiff sustained in the accident to
his neck and/or lower back. While I accept that the treatment of those soft
tissue injuries had, by then, become secondary to treatment that was being
given in relation to the plaintiff’s left hip, I do not consider that the
secondary nature of those complaints disqualifies them from inclusion in an
award of special damages. I would also grant the plaintiff reimbursement for
the cost of the MRI. The question of whether the plaintiff’s hip pain was
somehow associated with the accident was a live issue until the conclusion of
this trial. As Dr. McKenzie confirmed in his evidence, osteoarthritis can
become symptomatic immediately as a consequence of some other trauma to the
joint. While the parties agreed at the conclusion of this trial that causation
had not been established in this case insofar as the plaintiff’s degenerative
left hip condition is concerned, I do not believe that it was unreasonable for
the plaintiff, on the information he had, to act immediately to obtain more
detailed diagnostic information about his condition. I include this amount in
the special damages award of $4,293.
J. Conclusion
[123] To
summarize, I make the following award to the plaintiff:
Non-pecuniary damages | $60,000.00 |
Past Income Loss | 11,250.00 |
Loss of Future Earning Capacity | 5,000.00 |
Cost of Future Care | 2,000.00 |
Special Damages | 4,293.00 |
Total | $82,543.00 |
[124]
Unless there is some reason that makes such an order inappropriate, in
which case I may be spoken to, the plaintiff will have his costs at Scale B.
"FITCH J."