IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130718

Docket: M091900

Registry:
Vancouver

Between:

Erik Danielsen

Plaintiff

And

Nancy Johnson

Defendant

Before:
The Honourable Mr. Justice Silverman

Reasons for Judgment

INTRODUCTION

[1]            
This action arises out of a car accident (the “MVA”) on May 21, 2008 at
the intersection of East Hastings Street and Commercial Drive in Vancouver. 
The plaintiff was a passenger in one of the vehicles.  The defendant, the
driver of the other vehicle, has admitted liability.  The plaintiff was injured
as a result of the MVA and claims damages as compensation.

PRE-MVA

General

[2]            
The plaintiff is 37 years old.  He and his wife have a three-year-old
son, Magnus.

[3]            
As a boy, the plaintiff lived for a number of years in England with his
mother and stepfather, where he did all his schooling.  He was a poor student
and a poor learner.  He left school at age 15 after failing most of his
courses.  He had achieved the equivalent of Grade 10 in British Columbia.

[4]            
The plaintiff testified that he drank alcohol excessively and sometimes used
cocaine when he lived in England.  He said he drank on the weekends and he and
most of his friends and most of the people he knew used cocaine.

[5]            
He lied, under oath, at his examination for discovery, about whether he
had used cocaine since the MVA.  He acknowledged this in his evidence in chief.
He said he lied because he was embarrassed about it and because of the stigma
attached to drug use.  The defendant argues that the real reason the plaintiff
lied was because he thought it might have a negative effect on this claim.

[6]            
The plaintiff was an extremely active individual and had sustained
various injuries at various times prior to the MVA.  He had been knocked
unconscious before the MVA.  He was punched unconscious at one point, and he
was also "choked to the point of blacking out two or three times".

[7]            
He was also injured in a car accident in about 2002 in which he
sustained a fractured neck.  He lost consciousness in that accident.  He had to
wear a neck brace for nine months and was off work for many months.  He told a
doctor that by the time of the MVA in 2008 he was "pretty much
recovered" from the earlier accident.

[8]            
He also hurt his back in England, and hurt his back again in 2006 in
Canada, which was a severe enough injury that he told his doctor he could not
move because of severe back pain and right hip pain.  He missed a couple of
weeks from work.

Work History

[9]            
When he was about 18 he joined the British army.  After a grueling week
of testing, out of 37 who started the testing, he was one of only seven
soldiers who succeeded in becoming a member of the British Airborne.  He loved
challenging himself physically and has never lost the desire to do so.  He was
in the army for four years.

[10]        
After he left the military, the plaintiff worked at a variety of jobs,
including washing dishes, managing a hotel, selling insurance, selling
kitchens, working at a fitness gym, as a landscaper, and as a courier
delivering food products in southern England and Wales.  He stayed in jobs from
one to six months, and no longer than 1½ years.  He kept changing jobs because
he disliked them all and was trying to find a job he would love.

[11]        
He came back to Canada in 2004 at the age of 28.  He began doing general
labour work on a construction jobsite for $14 per hour.  In two years, he had
worked himself up to $36 per hour, ordering and organizing materials, and
installing T-Bar ceilings and framing.  This is a physically demanding
occupation.

[12]        
When he started installing ceilings, he knew that he had finally found a
job that he loved. He was good at it, and always passed inspection.

[13]        
In addition to his great enjoyment of the job, he thought it a wise
choice for two reasons – calculating the costs of the jobs took minutes, rather
than hours, and compared to other work like dry wall or mudding it was light
work – work which would not wear his body out prematurely.

[14]        
He decided to start his own business, Alleykey Interior Systems Inc. (“Alleykey”). 
However, his goal, once he grew his company large enough, was to only do T- Bar
ceilings as he liked the work a lot, and there was not much competition.

[15]        
He worked long hours – trying to get contacts, installing ceilings, and
doing some drywall and framing.  He always had at least one helper to do the
menial work, which left him free to do the skilled T-Bar work more quickly.

[16]        
Even though installing T-Bars is light work compared to mudding or
drywall, it involves working with his arms above his head for long periods of
time.

[17]        
The cost and profit of doing T-Bar is easy to calculate the plaintiff
says.  His profit would be two-thirds of the price he would charge if he did
the physical work himself.  He would sometimes hire someone to work “on the
tools” (the physical work) which would reduce his profit per project, but was
intended to increase the number of projects that could be taken on.

[18]        
On the morning of the MVA, the plaintiff’s intention was to work on preparing
a bid for a large project for Zellers which involved three locations. He had
met and spoken to a new superintendent at Zellers a day or so before.  He had
been encouraged by the superintendent to formalize his bid.  He testified that
he had been informally told by the superintendent that he would be the
successful bidder, but that the paperwork had to be done.  At trial, no one
from Zellers gave evidence.

THE MVA

[19]        
On the morning of May 21, 2008, the plaintiff was a right front seat
passenger in a vehicle driven by his father, Robert Danielsen.  They were on
their way home after going out for coffee.

[20]        
The MVA occurred in the intersection of Hastings Street and Commercial
Drive in the City of Vancouver.  The vehicle in which the plaintiff was seated
was headed northbound on Commercial on a green light.  The defendant was headed
westbound on Hastings, did not notice the red light, proceeded through it, and
hit the plaintiff’s vehicle on the passenger side.

[21]        
The plaintiff’s father’s evidence is that the impact was very hard and
jarring. The brunt of the impact was on the door post between the front and
back passenger doors, and the right front passenger door.

[22]        
The plaintiff argues that the impact was “serious”.  He put his hands
out toward the dashboard to brace himself because he thought they were going to
hit the median.  He was wearing his seat belt, but as a result of the impact,
his head and his right shoulder hit the window and/or door.

[23]        
The defendant argues that the impact was “minor”.  She had been driving
30 to 35 kilometers per hour when she saw the other car and braked, thereby
reducing her speed before the impact.

[24]        
Both cars were driveable.  The vehicle photographs do not reveal a
significant amount of visible damage.

[25]        
Immediately after the MVA, the plaintiff’s father asked the plaintiff
how he was.  The plaintiff said he was okay.  The father then got out of the
car and went over to the defendant’s vehicle to exchange information.

[26]        
The plaintiff testified that he does not recall the sound of the impact
or hitting his head.  His memory for that time is poor.  He felt dazed and nauseous. 
He does not recall his father asking him how he was, nor does he recall his
father getting out of the car.

[27]        
After the MVA, the plaintiff had a bump on the right side of his head,
strong neck pain, strong right shoulder and arm pain, numbness in his right
arm, right hip pain and right foot pain, and his right foot was numb.

[28]        
The paramedics who attended the scene wanted him to go to the hospital,
but he declined.  When they were able to leave the accident scene, his father
used his fatherly prerogative to take the plaintiff to Lion’s Gate Hospital.  He
said his son looked ashen, was trembling and was very quiet whereas he is
usually a very talkative individual.  By the end of their hospital visit a few
hours later, the plaintiff had better colour and has stopped trembling, and was
a bit more talkative.

POST – MVA

General

The
Plaintiff’s Argument

[29]        
The plaintiff went to the office of his family physician, Dr. Surekha
Patel, a few days after the MVA.  He sometimes saw one of her colleagues but
most of the time he saw Dr. Patel.  He saw her six times in the first year
after the MVA.  She moved her practice to Surrey in July 2009.  At that time,
she wrote a narrative medical legal report.  The plaintiff later found another
physician in Vancouver.  Dr. Patel gave evidence and was qualified as an
expert in family medicine.

[30]        
On her initial examination of the plaintiff in July 2008, Dr. Patel
noted that he had limited motion of his neck, a tight upper trapezius on both
sides and tenderness of the right anterior shoulder and collarbone area.  He
had limited range of motion and muscle spasms in his upper back between his
spine and the right shoulder blade.

[31]        
The plaintiff had 19 physiotherapy treatments, and he initially improved
considerably.  However, by about the 16^th treatment, he felt he had
stopped improving.  He felt he did not have money to continue treatment which
was not helping to improve his condition.  He stopped in September 2008.  In
place of physiotherapy treatment, he was given exercises to do at home, which
he did do.  He attended for one further treatment in 2013, approximately three
weeks before the commencement of this trial.

[32]        
On October 28, 2008, he told Dr. Patel that he needed to return to
work because he had no money.  However, if he got up off of the sofa he felt
his shoulder popping in and out.  If he did nothing with his shoulder, he had
good range of motion, and only aching of the shoulder and arm.  Dr. Patel
examined him on that date, and found his right shoulder still had a painful
limited extension, and limited internal rotation.

[33]        
She saw him again on December 16, 2008.  He had attempted to go back to
work but was unable to do the heavy work.  He told her he was abusing drugs and
alcohol.  He testified that this helped him to deal with his pain and the
frustration of being unable to work comfortably.  Dr. Patel referred him
to the Burnaby Mental Health and Addiction Clinic.

[34]        
His then-fiancée threatened to leave him because of his excessive
drinking.  He began to acknowledge and to deal with his substance abuse
problems.  By March 2009 he had completely stopped drinking.

[35]        
He worked small jobs from January 2009 to April 2010, when he started a
four-week job.  It involved working with his arms above his head.  This caused
pain and he would have to lower his arms periodically to get relief.

[36]        
When he saw Dr. Patel in July 2009, he reported improvement, but he
had to use painkillers to see him through his work because of the pain, and
grinding and popping in his right shoulder, especially with ceiling work.

[37]        
In her report dated July 21, 2009, Dr. Patel said that:

1.       It was clear that he has
sustained injuries to his neck, mid back and especially his right shoulder in
the MVA;

2.       His shoulder continued to suffer
from limited mobility even a year post MVA;

3.       Prognosis was guarded;

4.       He was at risk for
osteoarthritis.

[38]        
In 2010, Dr. Larry W. Krywaniuk, psychologist, noted that the
plaintiff was a bit low.  In 2012, he diagnosed him with a major depression.

[39]        
The plaintiff has been referred to and has taken advice from a number of
doctors who are specialists.  He has not seen his family doctor since July of
2012.

[40]        
Robert Danielsen said that he sees his son about once a week.  The
plaintiff and his family live in a completely self-contained suite in the
basement of his father’s home.  His father gave evidence about the changes he
has seen in his son since the MVA, and changes in their relationship.  He noted
the following:

1.       Pain has become a large part of the plaintiff’s
life.  He did not handle his feelings and pain well, particularly in late 2008
when he started to drink heavily.

2.       The plaintiff could not work and that was
very difficult as he had no income.  He wanted to work, but pain would not
allow it.

3.       He had become a much more serious person than
he was before.

4.       The plaintiff was much less active than he
used to be.  He was sitting around, not exercising, and gaining weight.

5.       The
plaintiff and his father did not do many of the activities together that they
used to do before the MVA, including going for coffee, playing pitch and putt,
camping, swimming, and helping his father quite a bit with repairs and renovations
to his home.  He has not done any of that since the MVA.

The Defendant’s
Argument

[41]        
The plaintiff stopped complaining of significant injury only a few
months after the MVA.

[42]        
He said that he was able to use his neck 99% by three or four months
after the MVA, and the pain he initially had in the middle of the base of his
neck was gone by a year after the MVA.  He agreed that he has not had any neck
pain since then.

[43]        
He testified that his low back pain lasted for a few months after the MVA,
and was completely gone by no more than a year after the MVA.

[44]        
He did not seek or receive extensive or ongoing treatment.  He had a few
prescriptions and had a number of physiotherapy treatments in the first few
months after the MVA.  There has been no physiotherapy in the last four years
except for one treatment three weeks before trial.

[45]        
He has not purchased any prescription pain pills or anti-inflammatory
pills in the last 4¾ years.

[46]        
In the three years since the plaintiff got his new family doctor he has
only seen him four times for reasons related to the MVA.  The last time was in
June 2012.

Specific Injuries

[47]        
The two most serious injury claims that require consideration and
analysis are:

1.       Mild Traumatic Brain Injury (“MTBI”);

2.       Thoracic
Outlet Syndrome (“TOS”).

Mild Traumatic Brain
Injury

The
Plaintiff’s Argument

[48]        
The plaintiff presents two doctors who are of the opinion that he
suffered a MTBI in the MVA.

Dr. John le Nobel

[49]        
Dr. le Nobel was qualified as an expert in physical medicine and
rehabilitation.  There was no objection to his expressing his opinion with
respect to whether the plaintiff suffered a MTBI.

[50]        
He diagnosed the plaintiff as having a MTBI as a result of the MVA.  He
noted that the plaintiff felt dazed, was unable to recall the sound of the
impact, behaved inappropriately in refusing to comply with the ambulance
personnel’s recommendation to attend the hospital, and was nauseous.

[51]        
Dr. le Nobel explained at trial that the cause of the plaintiff’s
MTBI would not merely be the blow to the right side of his head, but also the
whipping side-to-side motion of the head. There are a number of different
things that can happen to the brain in this circumstance; they include
hemorrhaging, bleeding into the brain, and the impeding of blood flow resulting
from a lack of oxygen due to swelling.

[52]        
On cross-examination, he agreed that if one hundred people had a MTBI
with the symptoms that the plaintiff experienced, the majority of those people
would not continue to suffer the effects of the MTBI for so long as the
plaintiff claims.  But some would.

[53]        
In his report, Dr. le Nobel opines that the plaintiff’s
ongoing difficulty with the organizational, bookkeeping, and administrative
aspects of his business are multifactorial but result, in part, from the MVA.
He recommended further review by a neuropsychologist to assess the quantitative
aspects of his cognitive dysfunction.

Dr. Larry Krywaniuk

[54]        
Dr. Krywaniuk was qualified as an expert in the field of
neuropsychology.

[55]        
Like Dr. le Nobel he diagnosed the plaintiff as having a MTBI as a result
of the MVA.

[56]        
Dr. Krywaniuk met with the plaintiff, and interviewed him, on two
occasions – August 2010 and November 29, 2012.  In those interviews, Dr. Krywaniuk
determined among other things that there was a gap in the plaintiff’s memory
for a brief period commencing at, or immediately after, the MVA.  According to
commonly accepted criteria, this by itself is enough to result in a diagnosis
of a MTBI.

[57]        
At the first interview, he performed extensive psychological tests. 
With respect to those tests, he stated the following:

1.       The plaintiff showed all the indices of
making a good effort on all the tests, and the testing was consistent with his complaints.

2.       The plaintiff’s prior cocaine use and alcohol
abuse was unlikely to be a factor in his cognitive profile.

3.       His cognitive scoring was uneven, a result
which is much more likely caused by a MTBI than by other factors such as
emotional disturbance, pain, or medication usage.

4.       The
plaintiff was the sort of person who did not acknowledge his problems in a very
realistic way, which is characteristic of the sort of person who has been
involved with extreme sports, the armed forces (including going into dangerous
places by parachute), and ultimate fighting.  Such people do not respond to
questions in the same way – they suppress their discomfort and factors
associated with it.

[58]        
He formed the opinion that the plaintiff suffered weaknesses in the
areas of memory, processing speed, organization, concentration, and attention.

[59]        
In addition to the diagnosis of a MTBI, Dr. Krywaniuk indicates
that the plaintiff likely qualifies for each of the following diagnoses as
well: major depressive disorder, chronic pain disorder associated with a
general medical condition, and post-traumatic stress disorder.  These are indicated
as a result of the plaintiff’s persistent low moods, fatigue, reduced libido,
diminished concentration and attention, sleep disturbance, social withdrawal,
and increasing anxiety about his future.  These have a significant effect on
his work, and his relationship with his spouse.

[60]        
Dr. Krywaniuk is of the view that the plaintiff continues to suffer
with residual difficulties and will continue to do so in the future.  He was
first seen 2½ years after the MVA, which is well beyond the accepted recovery window,
and indicates that the difficulties will be permanent.  Further, his emotional
difficulties likely stem from the disturbance to his life and the restrictions
that he is experiencing.  He will likely continue to respond in that way as
long as those problems continue to exist.

[61]        
He made the following recommendations:

1.       assistance from an occupational therapist to
identify alternative pursuits or activities of a physical nature so he does not
consistently aggravate his symptoms;

2.       psychological therapy to address his various
adjustment difficulties associated with the MVA; and

3.       psychiatric
follow-up with regard to his difficulties.

The Defendant’s Argument

[62]        
The defendant agrees that if we define “brain injury” in a certain way,
then the plaintiff has one.  However, the court’s task is not to compensate a
label, but whatever symptoms may be present.

[63]        
The defendant argues as follows:

1.       The plaintiff did not suffer a brain injury.

2.       If he did suffer a brain injury, it was mild,
transient, and there are no continuing symptoms.

3.       The
evidence is as consistent with other causes for his symptoms as it is with
those symptoms being caused by a brain injury.

[64]        
The plaintiff did not suffer a brain injury:

1.       The plaintiff was not knocked unconscious at
the MVA.  He says there is a gap in his memory. The plaintiff’s father asked
him immediately after the collision whether he was okay, and he said
"yes" and that he was "fine".   He has a recollection of
various things happening at the accident scene, and he agreed with the suggestion
that he was in good spirits and was able to stand, walk, and speak easily.

2.       Dr. le
Nobel relied on the assumption that the plaintiff refused transportation and
concluded that the plaintiff was acting inappropriately.  However, there is no
evidence of that and the plaintiff gave a reason for not going in the ambulance
(he was a macho kind of guy and did not want to be ferried off in an ambulance).

[65]        
If the plaintiff did suffer a brain injury, it was mild, transient, and
there are no continuing symptoms:

1.       Dr. Stanley Hashimoto, neurologist,
primarily gave evidence with respect to the plaintiff’s arm and shoulder
injuries.  He also expressed his opinion that the plaintiff did not suffer from
a MTBI.  In doing so, he indicated that he relied upon the same standard
criteria as did Dr. le Nobel.  There was no objection to his offering this
opinion.

2.       John Lawless is a vocational consultant who
testified that the plaintiff was an intelligent guy with "good cognitive
horsepower."  All of the test results were average or above average. 

3.       All of the testing performed by Dr. Krywaniuk
also resulted in average or above-average scores, and included some scores in
the superior range.

4.       Kevin Leaker is an occupational therapist who
testified that the plaintiff’s testing was also within the normal or average
range.

5.       By March 2010, when the plaintiff saw Dr. le
Nobel, he did not appear depressed and he indicated that he did not have any
problems with nervousness, forgetfulness, or depression.

6.       The
plaintiff has never asked for or been prescribed anti-depressant medication and
he has not felt it necessary to attend or seek out counselling for depression
or mood-related problems.

[66]        
There are other causes for the symptoms that the plaintiff claims come
from a brain injury:

1.       Dr. le Nobel’s opinion when he saw the
plaintiff in March 2010 was that the plaintiff’s ongoing cognitive impairment
was multifactorial and due to a combination of: chronic pain, medication
effects, effects from substance use, possible emotional factors such as
depression and anxiety, in addition to any residual effects from a MTBI. He
felt that the brief period of altered cognitive function which the plaintiff
described would not in itself be anticipated to cause cognitive impairment for
as long as the plaintiff has continued to complain of symptoms.

2.       Dr. le Nobel testified that the
plaintiff’s low mood and use of alcohol and cocaine contributed to his
disability.  After stopping drinking entirely for a time, the plaintiff has
resumed drinking socially, but not as much as before because it interferes with
his fitness goals. He has not used cocaine since March 2009.

3.       Dr. Patel
attributed the plaintiff’s mental stress, depression, anxiety, and insomnia to
the MVA, but she did not know about another major event which occurred at the
relevant time, the loss of the plaintiff’s girlfriend’s baby.  The plaintiff
acknowledged that it was emotionally difficult and it was obvious that this event
had a significant effect on him.  She was about two months pregnant and they
were very excited, and had even named the baby.  This happened precisely at the
time when he was using cocaine and alcohol to excess.  He said he "lost
control".

[67]        
The evidence is not sufficient to conclude that there was a brain
injury.

Thoracic Outlet Syndrome

[68]        
The parties disagree with respect to whether the plaintiff suffers from
TOS and whether it was caused by the MVA.

[69]        
The plaintiff has called a number of expert witnesses on this subject,
including:

1.       Dr. le
Nobel – qualified as an expert in physical medicine and rehabilitation;

2.       Dr. Travlos
– qualified as an expert in physical medicine and rehabilitation;

3.       Dr. Fry
– qualified as an expert in vascular surgery; and

4.       Dr. Salvian
– qualified as an expert in vascular surgery.

[70]        
The defendant called one expert on this subject:

1.       Dr. Hashimoto
– qualified as an expert in neurology.

The Plaintiff’s Argument

[71]        
All four of the plaintiff’s experts express the opinion that he suffers
from TOS, and that it was caused by the MVA.

[72]        
The combined effect of the evidence of Drs. Fry, Salvian and Travlos is
as follows:

1.       TOS
occurs when the scalene muscles on the side and front of the neck are damaged
as a result of a flexion extension (whiplash type) injury. They can bleed and
tear. They become inflamed and swell.  The swelling can affect areas of the
neck, shoulder, and sometimes even the upper chest.  Because of the swelling,
there is less room in the thoracic outlet area, which is also known as the
interscalene triangle. This is what happened to the plaintiff.

2.       When
the plaintiff does any one of several particular movements involving the arm
and shoulder area, the damaged swollen muscles then compress one or more
nerves, the artery, or veins. This compression causes him to have pain in his
arm, and “pins and needles” or numbness in the arm or fingers and/or hand, and
all feeling is lost. If the arm is then put back down, the blood returns to the
arm and hand, and considerable pain results. The hand then goes red. The
plaintiff has had all these symptoms occur while working on the tools, and at
times while sleeping.

[73]        
In March 2010, Dr. le Nobel examined the plaintiff, took a history,
and diagnosed: a low back injury that had healed, a MTBI, flexion extension
injury to the neck, adhesive capsulitis of the right shoulder, and TOS. He
recommended, among other things, that he be seen by a thoracic outlet
specialist, an orthopedic surgeon, a neuropsychologist, and have an MRI.

[74]        
Dr. Fry devotes much of his medical practice to the management and
treatment of TOS, both conservatively and with surgery.  He diagnosed the
plaintiff as suffering from TOS arising from the MVA.

[75]        
Dr. Salvian has a special interest in the diagnosis and treatment
of TOS.  He testified that often a “medical team” deals with TOS.  He considered
the plaintiff significantly symptomatic.

[76]        
Dr. Travlos diagnosed the plaintiff as having TOS and advised him
to lose weight, and do a set of back exercises to pull his shoulders back to
open up space in the thoracic outlet.  He also suggested a few drugs that the
plaintiff may choose to take that may reduce his pain while he is working, but
they cause cognitive and balance problems and he is not willing to tolerate
either.  Furthermore, he often works on stilts, or is high up on scaffolding,
so neither his balance or cognition can be impaired.

[77]        
The defence expert, Dr. Hashimoto, opined, orally and in his
report, that the plaintiff does not have TOS.  The plaintiff argues that his
opinion with respect to TOS should be rejected for a number of reasons
including:

1.       While he admitted to being one of the
foremost experts in B.C. in the field of multiple sclerosis, and has been
exposed to TOS patients, he admits that he does not believe in the diagnosis
except where the symptoms are permanent or “constant”, rather than intermittent.

2.       He did not conduct all the standard tests for
TOS.

3.       He acknowledged that he would never be on a care
team for management of TOS.

4.       He acknowledged that the only time he talks
about TOS is in the courtroom, and that is always for the defence.

5.       He
was unable to diagnose the cause of the plaintiff’s symptoms.

Botox

[78]        
Drs. le Nobel, Travlos and Fry all recommended that the plaintiff have
botox injections.  He followed that advice.  He had to purchase the Botox
himself and bring it to the office. The cost was $393 for the one treatment. It
reduced his pain for about a three-month period, and took about six months for
the effects to completely disappear.  As expected, the muscles recovered and grew
back. Dr. Travlos thought he could have another 3 injections. There is a
limit on how many times he will do the injections because of the risk involved.

The
Defendant’s Argument

[79]        
The defendant argues that the plaintiff did not, and does not, have
TOS.  Rather, he suffered a mild shoulder and arm injury and his symptoms are
of that.  In the alternative, if he did have TOS, it was of the mild variety
and has completely resolved.

[80]        
In his testimony, the plaintiff commented on his improvement at various
stages:

1.       The plaintiff said he had “pins and needles”
in his right arm after the MVA (which the defendant accepts).  By the
time he went back to work in November 2008, "it was definitely way less,
and if I was doing nothing at all it was barely there".  When he started
working again, this only became "mildly" worse.

2.       The plaintiff was able to continue working
despite the numbness that developed with overhead work by periodically lowering
his arms.

3.       The
plaintiff testified that by May 2009 (just after he finished the four-week job
during which he was working up to 16 hours a day) his shoulder pain was 70% to
80% recovered.

[81]        
At various times since the MVA, the plaintiff has told most of the
doctors that he has seen that his symptoms had improved dramatically.

[82]        
The defendant argues that the opinion of Dr. Hashimoto should not
be rejected simply on the basis that he does not believe in TOS.  Rather, his
opinion should be considered on the basis of whether or not the plaintiff has
suffered a serious injury with serious symptoms.  “TOS” is only a label.  This
Court is not being asked to compensate a label, but actual symptoms.

[83]        
Dr. Travlos’ evidence (orally and in his report) included the
following:

1.       There is a continuum of TOS symptoms, and the
plaintiff’s symptoms are at the mild end of the continuum.

2.       It is really only overhead reaching that is
problematic for the plaintiff.  If the plaintiff had a job where he could hire
people to do most or all of that overhead reaching, and supervise and do other
work himself, he would be able to continue to be employed full-time.

3.       He does not recommend surgery.

4.       The
plaintiff does not have the characteristics of chronic pain patients.

[84]        
Dr. Salvian’s evidence (orally and in his report) included the
following:

1.       The plaintiff told Dr. Salvian that his
shoulder pain "gradually subsided". Dr. Salvian felt that the
plaintiff’s shoulder was normal on examination, and, although he looked for it,
there was no muscle wasting.  He had normal strength as well.

2.       He saw the plaintiff in July 2011, one month
after the plaintiff completed the half-ironman, and noted that he was
"very fit."  Dr. Salvian agreed that the amount of exercise the
plaintiff was doing at that time was unusual for people that he saw with TOS.

3.       He testified that the plaintiff’s
post-traumatic or myogenic TOS causes only intermittent symptoms and is not
causing permanent nerve damage.

4.       He
does not need surgery.

[85]        
Dr. Fry’s evidence (orally and in his report) included the
following:

1.       Dr. Fry saw the plaintiff in June 2011,
ten days after the plaintiff completed the half-ironman.  He was not in acute
distress and did not say anything about taking time off work.

2.       He
does not recommend surgery.

[86]        
Dr. le Nobel’s evidence (orally and in his report) included the
following:

1.       The root of the plaintiff’s problem was in
the shoulder joint, not in the thoracic outlet region, although he diagnosed
adhesive capsulitis ("restriction of movement") rather than
impingement.

2.       There
are a number of possible treatments for adhesive capsulitis, principally heat
and stretches. 

[87]        
Dr. Hashimoto gave evidence on behalf the defendant:

1.       He was qualified as an expert in the field of
neurology.

2.       He expressed the opinion that the plaintiff
does not suffer from TOS.

3.       He was skeptical about the existence of a
condition commonly referred to as TOS, except where the symptoms are permanent. 
This is because there is no agreed-on criteria based on scientific study for
the diagnosis.  There are no studies which prove the hypothesis correct.

4.       Dr. Travlos
supports the view of Dr. Hashimoto to the extent that he testified that
there is no standardized objective test for TOS.

[88]        
There is no objective evidence of the plaintiff having any injury to his
shoulder.  He has had various imaging/scans of his shoulder from 2008 to 2012. 
None of the foregoing indicated abnormal findings.

Activities

The
Plaintiff’s Argument

[89]        
The plaintiff was and is a very active person.  Dr. Salvian
testified that the plaintiff had been "a very physical and high
performance individual".

[90]        
The plaintiff’s stepfather had run in the Oliver half-ironman in June
2010, and the plaintiff was inspired to try.  He also registered for the Penticton
Ironman.  It is common ground that these are both extreme sporting events.  This
coincided with Dr. Travlos’ advice in September 2010 to lose weight.  He
began training slowly in the summer.  By February 2011, he was cycling 80 – 100
kilometers two or three times per week, running 16 to 24 kilometers two or
three times per week and continuing to work on his swimming.  He suffered pain
and modified his style in an attempt to alleviate it.  He often took
painkillers, but not for runs of 10 kilometers or less.

[91]        
He was also doing the Grouse Grind two to three times per week before
June 2011.

[92]        
He completed the Oliver half-ironman in June 2011.  He was pleased with
his performance, although he suffered in all three stages.  He had to modify
his stroke for swimming, and his bicycling position.  Dr. Salvian
testified that he would have expected the crawl to be painful.  During the
bicycling phase, the plaintiff found it difficult to lean forward; Dr. Salvian
said that leaning forward with one’s head up would be painful.  During the
running phase, he found the back and forth movement of his arms caused his
already painful right shoulder to be even more painful.

[93]        
The Penticton Ironman was scheduled for August 2011.  However, after the
Oliver half-ironman, the plaintiff was unable to work for two months because of
the shoulder pain. He dropped out of the Penticton Ironman so that he could
recuperate and return to work more quickly.

[94]        
He has continued jogging, hiking, and doing the Grouse Grind since 2010,
in order to keep fit and to keep his weight down.

[95]        
As a result of his injuries in the MVA, he has lost the ability to do a
number of the recreational activities he used to love.  These activities
include playing pitch and putt with his father, snowmobiling, rock-climbing, swimming,
shooting his rifles, snowboarding, dragon boat racing, maintenance of his home,
camping with his father, exercising, and renovations and repairs on his
father’s home.

The
Defendant’s Argument

[96]        
The defendant argues that the plaintiff has been very active since the
MVA; in fact, he has taken on more strenuous physical recreational activities
than he was involved in prior to the MVA.

[97]        
The plaintiff complains of not being able to shoot.  However, he did not
own any firearms before the MVA.  Since the MVA, he has become the owner of six
rifles and become involved in shooting.

[98]        
Similarly with snowmobiling −
this was a new activity for the plaintiff, with which he had no involvement
prior to the MVA.  Since then, he has bought two different snowmobiles.

[99]        
In 2012, he was physically involved in the following:

1.       snowmobiling;

2.       dragon boat racing;

3.       riding his bicycle – he testified that in
2012 he tried to ride once or twice a week for about 100 kilometers each time;

4.       continuing to do the Grouse Grind – he had a
season’s pass in 2010 and 2012 and he was doing the Grind three to four times
per week towards the end of 2012; and

5.       running.

[100]     The
plaintiff testified that, in the coming year, he intends to enter a 10-mile endurance/obstacle
course event in Whistler called “Tough Mudder”.

Work

The Plaintiff’s
Argument

[101]     The
plaintiff argues that he has been unable, as a result of the MVA, to do as much
work as he otherwise would have done, and/or has been unable to work as
efficiently as he used to before the MVA.

[102]     After the
MVA, he made the following attempts to return to work:

1.       He never did put his bid in for the three
Zellers stores – the job that he was to bid for on the day of the MVA.

2.       On October 28, 2008 the plaintiff told Dr. Patel
that he needed to return to work because he had no money, but his shoulder hurt
when he moved it.  Dr. Patel examined him on that date, and found his
right shoulder still had a limited and painful extension and rotation to less
than 90 degrees, and limited internal rotation.

3.       He had a mudding (of drywall) job in November
2008. He knew he could not do the job, so he hired another worker to do it for
him.

4.       Finally, in late November or early December
he attempted to do what was supposed to be a lighter job at the Canadian German
Care Home. He worked for 3 – 4 days and then was unable to complete the job due
to pain. He hired another worker to finish that job for him.

5.       Dr. Patel saw him on December 16, 2008.
He had attempted to go back to work but was unable to do the heavy work.

6.       He started work again in January 2009 doing a
few small jobs, and also had some jobs in February. 

7.       In April 2009, he commenced a four-week job,
but had great difficulty working with his arms above his head for long periods
of time.

8.       After
Magnus was born in March 2010, the plaintiff took a number of months off to be
with his child and his wife. He said that but for the MVA, he would have taken
only a few weeks off work, but that he needed a rest from work given the
significant pain he had been in.

[103]     In
addition, his difficulties working have resulted in reduced hours of work and
reduced income:

1.       Before the MVA, the plaintiff usually only
took about two weeks off work a year. He usually worked about 48 weeks in a
year because of time off between jobs.  Now he works much less.

2.       He
used to be able to do up to 100 hours per week “on the tools”. In the last two
years, he has worked increasingly fewer hours on the tools. He has
subcontracted more work out as he is very worried about damaging his right
shoulder and now works about 35 hours per week on the tools. He is able to bill
himself out at $45 per hour, and his company, Alleykey, still bills the work
out at $45 per hour, but he pays someone about $35 per hour to do his work for
him, thereby reducing his profit.

[104]     His
difficulties at work also have negative effects for him after his work for the day
is finished:

1.       Even
with the fewer hours and job modifications, the plaintiff still comes home at
the end of a day of working on the tools in pain. He takes medication daily
when he is working. He “de-toxifies” and takes no medication on days he does not
work.

2.       Dr. Travlos
had suggested a few drugs he may choose to take that may reduce his pain while
he is working, but they cause cognitive and balance problems and he is not
willing to tolerate either, particularly since he often works on scaffolding.

3.       When
he comes home at the end of a work day he is in pain, irritable, moody, and
quiet, and this behaviour has negatively affected his relationship with his
wife.

[105]     In her
report dated July 21, 2009 Dr. Patel said that:

1.       His
injuries had indeed disabled him from doing heavy-duty construction work. There
was still evidence of limited recovery from his shoulder injury;

2.       He
would need to maintain strength and flexibility through ongoing structured
rehabilitation, physiotherapy and other physical modality programs;

3.       Prognosis
was guarded; and

4.       He
was at risk for osteoarthritis.

[106]     The
plaintiff considered and has been attempting other business models which do not
require him to be physically working on the tools as often.  These business
models involve:

1.       hiring others to do the physical work, while
he does the administrative and supervisory work; and

2.       forming
a partnership.

[107]     He has
made a number of attempts to hire others to do the physical work.  This is
clearly better than not having any work at all, however, his greatest skill and
pleasure is in working on the tools.  He understands that the concept of hiring
others to do the work might permit him to secure a greater number of jobs and
thereby increase his gross income.  However, he has long recognized that a
weakness in his skillset is organization and administration and he is wary
about the ability to do this successfully.  Similarly, he is wary about
successfully being able to re-train in order to learn how to do it.

[108]     His
company, Alleykey, has partnered with a friend’s company within the last year. 
They do bids together, and share expenses and profits equally.

[109]     The
plaintiff has found that he and his partner complement each other’s skills
(especially with his own disabilities), and they get along well together.  However,
he is fearful about what will happen in the future, because his partner’s family
is in the Yukon and he is talking very seriously about moving back to the
Yukon.  This will be a further significant loss to the plaintiff because he has
depended on his partner as a result of his own disability.

The
Defendant’s Argument

[110]     It is
clear that, just as the plaintiff has continued to be involved in extreme
recreational activities since the MVA, he has also not been significantly
incapacitated from his work.

[111]     There is
no medical evidence supporting the notion that he was required, for medical
reasons, to take a lengthy period of time off after the birth of his son in
2010.

[112]     Further,
he has earned more money at his work since the MVA than he did before the MVA.

[113]     There have
been a number of unexplained deposits made into the plaintiff’s or Alleykey’s
account which suggests that the plaintiff has been earning more money than he
is willing to reveal.  Further, if these represent “under the table” work, then
they say something about the plaintiff’s credibility and reliability as well.

[114]     The
plaintiff testified that he was working on a job in Squamish in March and April
2009, and at some point began working up to 16 hours a day, seven days a week. 
Out of that job, he got "one of the best jobs" he had ever had, at
Audio Video Unlimited, which lasted for two to three months.

[115]     The
plaintiff testified that he worked continuously throughout the rest of 2009
until his son was born in March 2010.  His work was busy, he did not take any
vacations, and he enjoyed what he was doing.

[116]     The
plaintiff told Dr. le Nobel in March 2010 that, over the past several
months he had been working full days and then would sometimes go to another job
to work on the evenings and weekends, and the plaintiff testified that that was
true.  He said that he was working more than 40 hours a week at that time, and
was only taking non-prescription painkillers three times a week.

[117]     Apart from
the six months the plaintiff said he took off after his son was born, and the
two months he said he took off after the half-ironman (if he did take time off
work), the plaintiff has worked continuously since he returned to his regular
work in around March 2009.  He also agreed that the time he was not work, he was
looking for work.  In other words, the plaintiff has worked continuously except
when his company did not have work.

[118]     The
plaintiff testified that most of the time when he was working in 2009, 2010,
and 2011, he was in the habit of working seven days a week for several weeks in
a row.  He said that in 2011 and 2012 he occasionally did that but had made a
conscious effort to try to take more time off.

[119]     The
plaintiff has a recurring problem with cocaine and alcohol.  This is as likely
to be responsible for any loss in income which he has suffered as are any
injuries that he may have suffered in the MVA.

Work – Future Potential

The
Plaintiff’s Argument

[120]     The
evidence suggests that the plaintiff will not be able to continue to work on
the tools:

1.       Prior to the MVA, he had tried and left a
long list of jobs. However, he has stuck with T-Bar work for several years
(commencing approximately one year before the MVA), in spite of the challenge
of his right shoulder partially disabling him and causing him pain.  This is a
strong indication that he would have continued in this job long-term.

2.       Now that he has a problem shoulder, he can
never compete as an employee doing physical work.  He will forever be less
attractive to prospective employers.  He must remain self-employed in some
form.

3.       John
Lawless is a vocational consultant who saw the plaintiff in 2010.  He was
qualified as an expert in vocational rehabilitation and assessment.  He said
that the plaintiff has been what he calls “toughing it out”, which is quite common
with for young men who are strong, physical, proud and determined. They take
painkillers.  They come home and they are sore and miserable, but they keep
pushing themselves. Things get worse.  They are so sore and miserable after
work, that they have not got the energy to retrain, to acquire new skills. 
This is the plaintiff’s dilemma.

[121]     The
plaintiff is at risk for becoming unemployed or underemployed.  Dr. Dean
Powers was qualified as an expert in vocational rehabilitation.  He testified
that:

1.       Since the plaintiff is no longer suited for
the physical work, what will he do?  Having only grade 10 education is a
barrier to becoming a manager/supervisor, whether as an owner or as an
employee.  Most employers are looking for more education for their managers.  He
is at risk for becoming unemployed or relegated to entry-level jobs, and the
low wages associated with those jobs.

2.       Because
he is a physical person, there is a further danger if he becomes a manager.  There
will be a boredom factor due to his intelligence and he is going to have to do
something challenging. However, he is not someone who has had success at, or
likes, schooling. Therefore, he has a higher risk of unemployment and
underemployment in the future due to two factors: his disability, and his personal
disposition – the boredom factor.

[122]     It is
clear that the plaintiff needs to re-train:

1.       Dr. Salvian has been very clear in his
report that too much use of the arm overhead, repetitive activities, or heavy
lifting will result in symptoms that recur and are often persistent and long-lasting.
He strongly recommends that the plaintiff retrain and do a less physically
involved job such as estimating, inspection or management.

2.       Dr. Travlos said that the plaintiff needs
to adapt and modify his work so that he is not working overhead continuously.  He
recommends that he should focus on the administrative side of work.

3.       Dr. Krywaniuk testified that the
plaintiff needs to find work that is meaningful, satisfying and interesting to
him. He is highly intelligent. If he is bored, he will not succeed in his
studies or work.  It is not that he is lazy; it is simply who he is.

4.       Dr. Krywaniuk diagnosed the plaintiff
with depression in 2012. If his condition continues to deteriorate, then,
instead of only having pain during the week when he is working, and then
recovering a day or two later, he is at risk of being in continual pain and/or
needing surgery.

5.       The
plaintiff has been told to stop working on the tools, and to re-train for management
or supervision. This is not his strong point and he is aware of it. His memory
has been getting worse in the last year. His cognitive changes frighten him.

[123]     Dr. Krywaniuk’s
opinion with respect to the plaintiff’s future includes the following:

1.       He does not have formal skills or training to
move into management within his firm or another, and his academic and
neuropsychological limitations put him at risk (for failure) both in the
training and in the work he would do;

2.       The residual aspects of his MTBI have further
compromised his abilities for schooling; and

3.       He
is not particularly suited for managerial or supervisory work, as they tend to
be more sedentary and rely on skills and abilities that represent a relative
weakness for him, rather than a strength.

[124]     A number
of career options have been suggested to the plaintiff by various
professionals.  Considering most of those options, he said that he would either
hate the job, find aspects of it physically painful, or be unable to
successfully complete the years of education required.

[125]     The
evidence suggests that the most suitable alternative for the plaintiff will be
in the field of management and supervision of more complex construction
operations ("construction operations").  The plaintiff agrees that
this is likely the best alternative for him.  Consequently, he needs training
that will assist him in this field:

1.       Dr. Powers recommends a training program
called a Certificate in Construction Operations, to learn to manage employees,
materials and contracts within the construction industry and includes marketing
skills courses, and labour relations law. The average wage of someone with this
Certificate is $50,000 per annum.

2.       Although the course can be completed in nine
months if one goes full-time, it can be completed on a part-time basis over as
long as seven years. The price for the whole course is $9,855. Courses are one
night a week in the evening.  Dr. Powers’ view is that the plaintiff
should take the course part-time. Full-time could be quite taxing because of
the plaintiff’s cognitive difficulties and soft tissue injury issues.

3.       The plaintiff’s father also does not think his
son will have the patience to see through a nine-month educational program on a
full-time basis.  He would be as overwhelmed as he was in school and would not
complete the course.

4.       The
plaintiff testified that he is concerned about this future.  He is keen to attend
the course, however, he believes that he could not do the course part-time, as
his brain is “fried by the end” of the work day. He believes that taking the
course full-time is his best and really only option.

[126]     Dr. Salvian
expressed concern about the likelihood of the plaintiff succeeding at
retraining.  He thought he should tape his lectures, to avoid too much work or
keyboarding with his hands in front of him. He thought long hours of sitting
would also cause him pain.

[127]     The
likelihood of the successful completion of this course is an issue the Court
must consider.  Further, if the plaintiff does take the nine-month re-training
course, he will have no income at all during that period, and must be
compensated for that.

[128]     Mr. Leaker,
an occupational therapist, assessed the plaintiff with regards to what
assistance he could use in his business due to his MTBI. This involves his need
for assistance with planning, organizing, problem-solving, and judgement and
difficulty with multi-tasking.  He has made specific recommendations for
occupational therapy training and services. He recommends that these should be
implemented intensively for the three months, then less intensively for the
next six months, and finally every six months after that.           He has also
recommended memory aids and a five-week CogMed program for cognitive
remediation.

[129]     Mr. Leaker
also provided the anticipated cost of all of the foregoing which is considered
under the heading of future cost of care later in this judgment.

The
Defendant’s Argument

[130]     The most
likely scenario is that the plaintiff will continue to work despite his ongoing
symptoms.  That is what he has done for the past five years.  His symptoms so
far have not prevented him from doing his job, and he has adapted to his
symptoms by structuring his work in such a way that he can continue to work. He
has demonstrated his willingness and ability to keep working.  The likelihood
is that he will supplement his continually physical work with hiring of
assistants to do the heavy work.

[131]     The
evidence indicates that:

1.       The
plaintiff is more than physically capable of earning at least as much money as
he was earning before the MVA.  There is no indication this will change.

2.       The
plaintiff is aware that he can change the model of his business to work more as
an administrator and supervisor, and hire out the physical work to employees.

3.       The
plaintiff still loves his job.  He indicated in his testimony that he is always
on time, always works hard, always reaches his deadlines, does good work, and
never fails inspections.  He actually guarantees in his marketing that
inspections will be passed.

4.       His
work standards, in terms of quality, have not suffered.

5.       He
has not really reduced the number of hours he works, just the number of hours
he works on the tools.  He still continues to work "ridiculous hours". 
Even as recently as early 2013 there was a period in which he was working every
day because his workload was "almost double".

6.       His
symptoms do not stop him from working.  As John Lawless said, the plaintiff is
toughing it out.  The defendant argues that the plaintiff is likely to continue
toughing it out, as he has done his whole life.

7.       The
plaintiff told Dr. Travlos that he was working full-time and was always
busy, to the point where he would generally hire two to four workers to assist
him.

8.       Dr. Travlos
testified that it is really only overhead reaching that is problematic for the
plaintiff.  If the plaintiff had a job where he could hire people to do most or
all of that overhead reaching, and supervise and do other work himself, he
would be able to continue to be employed full-time.

CONCLUSION AND INFERENCES
OF FACT

Credibility

[132]     When
considering the totality of the evidence, in assessing the credibility and reliability
of the plaintiff, there are, in addition to all other relevant considerations,
a number of discrete factors that I have regard to:

1.       The
plaintiff’s admission that he lied at his examination for discovery with respect
to cocaine use after the MVA.

2.       The fact that
he has received money “under the table” which he has not declared as income, on
at least one occasion, and possibly more.

3.       The
insufficiency of his, and Alleykey’s, accounting records as a basis for making
precise determinations with respect to his income and expenses.

4.       He has said to
a number of medical witnesses, from time to time, that he has been feeling much
better, which is arguably inconsistent with his ongoing complaints, and the
opinions of the experts.

5.       His strong
work ethic.  The weight of the medical evidence provides a basis for which the
plaintiff might say “Oh, woe is me.  I am hurt.  Give me money.”  However, he
does not do that.  In the words of one of the experts, he continues to “tough
it out”.

6.       The expert
evidence suggests that he is more injured than he admits to the court, or that
he is willing to admit to himself.

[133]     Some of
the foregoing considerations enhance the plaintiff’s credibility.  Some
detract.

[134]     In view of
the totality of the evidence, and the foregoing, I find the plaintiff to be
credible and reliable.  I might come to a different conclusion if the weight of
the medical evidence was not generally supportive of his claims.

General

[135]     There is a
great deal which is non-contentious that has already been referred to in this
judgment under the headings of "The Plaintiff’s Argument" or
"The Defendant’s Argument".  This includes such things as doctors’
names, dates, when the plaintiff saw doctors, and references to what doctors
said in their oral testimony or wrote in their reports.  It will be clear that
there are many other things previously referred to which are not contentious
and which I accept as facts.

[136]     I would
have great difficulty making many of the findings of fact which I do make
and/or drawing many of these inferences based exclusively upon the evidence of
the plaintiff.  Rather, it is the combination of his evidence together with the
supporting evidence of the expert witnesses which satisfies me that these are
the correct conclusions and inferences to draw.

[137]     The
plaintiff’s propensity for "toughing it out" has a number of
consequences:

1.       It suggests
that the plaintiff is not following the advice of his doctors, and may continue
in that way in the future.

2.       He may be
doing himself long-term harm when he continues to do work over his head or
participates in extreme sports.

3.       On the other
hand, his persistence in working in a manner which is contrary to his doctor’s
advice has reduced what would have otherwise been a much larger past wage loss
claim.

4.       He has a
strong work ethic.

[138]     The
defendant has stressed the evidence of a number of witnesses, including doctors
who have been told at various times by the plaintiff that he has been feeling
much better.  The plaintiff acknowledged in his evidence that he has been
feeling much better from time to time.  In this regard, I am satisfied that the
pain and other symptoms that the plaintiff has suffered, with respect to his
MTBI and his TOS, have waxed and waned from time to time and continue to do
so.  When he has been feeling better, he has stated this to be the case.  On
these occasions, he has no doubt also felt encouraged and optimistic and this
has caused him to work harder, to be involved in more extreme activities, and
the inevitable worsening of his symptoms follows.  I do not conclude that
because he has suggested he has felt better from time to time that he has ever
been completely cured or permanently relieved of his symptoms.

[139]     With
respect to both TOS and the MTBI, I reject the inference that prior injuries
may have caused his current problems.  To the contrary, the evidence is that it
is common for the long-term consequences of prior injuries to sometimes be
sitting dormant, and when a newer injury emerges, a MTBI or TOS may result.  I
am satisfied that has occurred here.

MTBI

[140]     The weight
of the medical evidence leads to the conclusion that the plaintiff suffered a
MTBI as a result of the MVA and, on a balance of probabilities, I find this to
be so.

[141]     Dr. Krywaniuk
said that just having a gap in his recollection is sufficient to prompt a
diagnosis of a MTBI, quite apart from the other cognitive symptoms.  The
definition of brain injury is met even if the patient has a very brief period
of altered consciousness and does not have any residual symptoms at all.

[142]     I accept
Dr. Krywaniuk’s opinion that, while some of the plaintiff’s scores were
close to normal, this does not mean there was not a MTBI.  The issue is whether
he suffered a deficiency in a relative sense, relative to who he had been
before.  Similarly, even if the plaintiff learns to cope better with his loss,
it is still a loss.

[143]     In
addition to the diagnosis of a MTBI, Dr. Krywaniuk opines that there are a
number of diagnoses which may be applicable, including major depressive order,
chronic pain disorder, and post-traumatic stress disorder.  I find as a fact
that this is so.

[144]     All of the
foregoing continues to affect his cognitive abilities, particularly in regard
to concentration, organization, and the paperwork of his business. He has also
suffered an emotional mal-adjustment to the pain and to the loss of his
previous physical ability to work without restrictions or pain.  He has lost
his optimism for improvement, and is suffering from depression for which he
needs therapy as a result of the MVA.

[145]     The MTBI
and the resulting neuro-psychological deficiencies that the plaintiff
demonstrates are likely to be mild.  Nevertheless, they may have a significant
effect in combination with his emotional maladjustment and his residual
physical difficulties.

[146]     I am
satisfied of the following: that the plaintiff did suffer a brain injury in the
MVA, it was a mild brain injury, he suffers from accompanying emotional
difficulties that cause additional impairment, and the consequences of the
foregoing are likely to be ongoing.

TOS

[147]     The weight
of the evidence supports the finding that the plaintiff does suffer from TOS as
a result of the MVA and, on a balance of probabilities, I find this to be so.  I
note that Dr. Fry devotes much of his medical practice to the management
and treatment of TOS, both conservatively and with surgery, and that
Dr. Salvian has a special interest in the diagnosis and treatment of TOS.

[148]     More than
a decade ago, the plaintiff had a fracture to his neck which eventually healed
completely, and he had no problems as a result of it in the five years prior to
the MVA.  The research has shown that a majority of people who suffer from TOS
have had a prior neck injury, perhaps even years before, which had long healed,
but that set them up to be vulnerable to any further injury.  I am satisfied
that this is what happened to the plaintiff.

[149]     When the
plaintiff raises his right arm to the side or above his head, or in front of
him (while driving) as well as into a position where his hands are at the
height of his head or slightly higher, TOS symptoms are provoked. Unfortunately,
he is required to do these sorts of movements at his work.

[150]     I am
satisfied that the plaintiff suffers from TOS as a result of the MVA.  He has
been able to function with his pre-MVA activities, including work and
recreational activities, although less efficiently and less comfortably than
before the MVA.  I am satisfied that the evidence indicates this will not
improve; in fact, it will worsen.  Hence, the weight of the medical opinion
that the plaintiff must re-train.

Activities

[151]     I am
satisfied, on the basis of all of the evidence, that the plaintiff continues to
be involved with recreational and extreme physical activities since the MVA. 
However, I am also satisfied that, when doing so, the ease and enjoyment with
which he used to participate are now impaired by the injuries caused in the
MVA.  These limitations involve pain which the plaintiff either makes
accommodations for (as in swimming and cycling), or which he suffers through
because of his desire to continue to be involved in the activities.

Work Since MVA

[152]     I am
satisfied that the plaintiff is partially disabled from working on the tools as
an installer of T-Bar and other ceilings, and from doing drywall and framing,
as a result of the MVA.

[153]     I am not
satisfied that the plaintiff would have obtained the job that he testified
about with respect to three Zellers stores.  There is not sufficient evidence
for me to determine that he would have been the successful bidder.

[154]     I am
satisfied that the plaintiff was required to take a number of months off work
in 2008 as a result of his injuries in the MVA.

[155]     I am
satisfied that the many months taken off work in 2010, after the birth of the
plaintiff’s son, have not been proven on a balance of probabilities to have
been medically necessary.  There was no evidence of medical support for that
amount of time to be taken off.

[156]     In the
last several years, he has continued to do the physical work that he used to do
before the MVA, but with the following limitations:

1.       He is unable
to do as much work as he otherwise would have done.

2.       He works
through pain, but “toughs it out”.

3.       He works more slowly, and as a result less
efficiently, because he is required to lower his arms to rest, something which
he did not have to do before the MVA.

4.       He sometimes hires other workers to do
aspects of the physical work, which enables him to remain involved in the
business, but which reduces his price-per-job profit.

5.       This has resulted in reduced hours and
reduced income.

6.       These
difficulties have had negative effects for him after his work day is finished,
including ongoing pain, discomfort, and negative effects on his relationship
with his wife.

Future Work

[157]     The weight
of the medical evidence indicates that the plaintiff must stop doing the overhead
physical work of his business, and must refrain from the extreme recreational
activities that bring on his symptoms. If he does not follow this advice, he is
at significant risk of his condition worsening.

[158]     I am
satisfied that, as a result of
his injuries, the plaintiff:

1.       is and will continue to be permanently, partially
disabled;

2.       will not be able to indefinitely continue to
work on the tools;

3.       is at risk for becoming unemployed or
under-employed;

4.       must re-train so that his work will involve less
physical involvement;

5.       is at risk of being unable to successfully
complete the re-training;

6.       should take the re-training course on a
part-time basis, but is inclined to take it on a full-time basis;

7.       is at greater risk of not completing it, if he
takes it on a full-time basis; and

8.       will have no income for the nine months of the
course, if he takes it on a full-time basis.

[159]     I also
find that, whatever the final result of the plaintiff’s training and whatever
job he may take in the future, he will experience a diminished capacity to work
− being less valuable to
himself and to others.  As Dr. Krywaniuk noted, even if the plaintiff learns to
cope better with his loss, it is still a loss.

DAMAGES

Non-Pecuniaries

The
Plaintiff’s Argument

[160]     The
plaintiff submits that the following cases, with similar facts and issues,
suggest the appropriate range for non-pecuniary damages in this case:

Stapley v. Hejslet, 2006 BCCA 34

Williamson v. Suna, 2009 BCSC 576

Power v. White,
2010 BCSC 1084, aff’d 2012 BCCA 197

Hooper
v. Nair, 2009 BCSC 862

[161]     The plaintiff
argues that $135,000 is the appropriate amount to be awarded.

The
Defendant’s Argument

[162]     The
defendant submits that the following cases, with similar facts and issues,
suggest the appropriate range for non-pecuniary damages in this case:

Kandag
v. Di Vora, 2007 BCSC
717

Campbell
v. Banman, 2008 BCSC
626

Dennis
v. Fothergill, 2012
BCSC 1510

Schweighardt
v. Palamara, 2003
BCSC 1149

Salvatierra
v. Vancouver (City),
2008 BCSC 537

Wery
v. Toulouse et al.,
2006 BCSC 823

Warner
v. Cousins, 2012 BCSC
1737

Sharifi
v. Chaklader, 2012
BCSC 685

Harris
v. Zabaras, 2010 BCSC
97

Naidu
v. Mann, 2007 BCSC
1313

Wiebe v.
Neal, 2004 BCSC 984

[163]     The
defendant argues that $50,000 is the appropriate amount to be awarded.

Conclusion

[164]     The
plaintiff argues he has lost his healthy body, the ability to work hard at the job
he loves, the ability to easily pursue his recreational activities, and with
them a good deal of the joy, satisfaction, and meaning in his life. He has TOS,
a MTBI and is depressed with good reason.

[165]     The
defendant argues that, despite the fact that the plaintiff missed a few months’
work in the year of the MVA and has had some ongoing aches and pains, his
injuries should be viewed as rather mild in view of the fact that he now earns
more money at work than he did before the MVA, and he is just as heavily
involved in extreme recreational activities.

[166]     The
defendant notes that the plaintiff failed to call what she describes as the
“usual type of witness” to give evidence about changes in the plaintiff’s prior
lifestyle.  While this is not an inaccurate comment, I note that it is tempered
by the fact that the plaintiff’s father did give evidence of that sort, as did
Dr. Patel, who was the plaintiff’s family doctor and had a good deal of prior
personal involvement with him.  Further, the plaintiff also called more than
the usual number of medical witnesses.

[167]     I agree
that the plaintiff demonstrates remarkable grit in continuing to work and to be
involved in extreme sporting activities, to some extent contrary to the advice
he has received from various doctors and to the surprise of those doctors. 
Having said that, I am satisfied that the plaintiff does so with much less ease
and pleasure than he did prior to the MVA.  He has suffered a loss in that
regard, and will continue to do so.

[168]     In view of
all the foregoing, I award non-pecuniary damages in the amount of $85,000.

Past Wage Loss/Loss of
Opportunity

The
Plaintiff’s Argument

[169]     The
plaintiff argues that he lost income and/or the opportunity to earn income from
the date of the MVA to the present as a result of the injuries.

[170]     The
plaintiff called as a witness G.F. Taunton.  He was qualified as an expert in
the field of economics.  In addition to his evidence, he provided several
reports, together with a number of tables and charts in support of his opinion.

[171]     His
opinions do not purport to advance an exact figure.  Rather, he notes in his
report that “… the estimates of loss found herein should be treated as being
primarily illustrative in nature.”

[172]     He bases
his opinions upon premises derived from the reports of Mr. Lawless and Dr. Powers
and documentary financial evidence from the plaintiff and Alleykey.

[173]     He formed
and provided his opinions with respect to the “five years” from the date of the
MVA until the first day of trial.  The “five years” is actually less than five
full years because 2008 was a short year (commencing May 21, the date of the
MVA) and 2013 is also a short year (from January 1 to March 4 – the first day
of trial).

[174]     He notes
that past wage loss consists of the difference between what might have been
earned and what he actually earned.

[175]     At the
risk of over-simplification, his methodology consisted of calculating the
plaintiff’s “expected – without accident income” and his “actual estimated with
– accident income” over the “five years”.  The latter amount is less than the
former amount, and the difference between those two figures represents, in Mr. Taunton’s
opinion, the best estimate that one can make of the plaintiff’s past wage loss.

[176]     He
testified that, in arriving at his opinion, he took into account the various
contingencies and adjustments that are traditionally recognized by economists
as necessary to be considered when preparing opinions of this sort.

[177]     The amount
of the difference between the two previously-noted figures is $50,945 over the
“five-year” period.  That is Mr. Taunton’s estimate of the plaintiff’s
wage loss.  That is an after-tax figure, which does not take into account court
ordered interest.

[178]     The
plaintiff argues that Mr. Taunton’s figure is actually low.  This is
because, as he testified, he was not aware that the plaintiff had spent five
months off work recuperating from his pain, after his child was born.  The
plaintiff argues that this information has the effect of increasing his past
wage loss.

The Defendant’s Argument

[179]     The
defendant argues that the plaintiff has suffered no wage loss:

1.       He has in fact made more money since the MVA than
before.

2.       The evidence indicating that he made more
money does not take into account that he also earned additional money in “under
the table” jobs.

3.       Whatever income the plaintiff may have lost
is at least partly a consequence of his abuse of alcohol and cocaine, rather
than any injuries from the MVA.

4.       The plaintiff’s and Alleykey’s paperwork is
insufficient to satisfy the court exactly how much he was earning before the
MVA.

5.       The
evidence of the plaintiff is problematic and/or suspect in its goal of
attempting to satisfy the court with respect to any wage loss.

[180]     Despite Mr. Taunton’s
calculations and opinion, the plaintiff suffered only a minor wage loss in
2008, and no wage loss in any subsequent year.

[181]     For 2008, Mr. Taunton’s
calculations suggest that, once the plaintiff’s income earned in December 2008
is taken into account, he sustained a loss of about $12,000 ($21,000 expected
income, minus $5,000 actual income, multiplied by 75% for tax).

[182]     For 2009,
there is no loss.  The plaintiff worked full-time throughout 2009, except,
perhaps, a short period of time at the beginning of the year when he was
working less for other reasons (shortage of work and disability due to
depression related to alcohol and cocaine abuse and his girlfriend’s
miscarriage).  The plaintiff’s banking records show that his business had gross
revenues of more than $167,000 (after G.S.T. collected is factored out of the
deposits).  Assuming a gross profit of 54.4% as per Mr. Taunton, and fixed
expenses of $25,000, the plaintiff actually appears to have paid himself more
than $65,000 in 2009.

[183]     For 2010,
there is no loss.  The plaintiff’s actual income was very close to his “expected-without
accident income”, certainly within the expected range. If there was any
decrease in the plaintiff’s income in 2010, it was because the plaintiff took
time off work to spend time with his newborn son, when there is no medical evidence
to suggest there was a medical need to take that time off.

[184]     For 2011,
there is no loss.  The plaintiff’s actual income was close to his “expected-without
accident income”. The numbers suggested by Mr. Taunton are little better
than guesses.  The evidence shows that the plaintiff worked full-time
throughout 2011.

[185]     For 2012,
there is no loss.  The plaintiff’s actual income was close to his “expected-without
accident income”.  He worked full-time, the entire year, except for a two-week
vacation to Spain.  He made more money in 2012 than he had ever made in his
life (and this does not take into account “under the table” earnings that he
admitted to).

[186]     For 2013,
pre-trial, there is no loss.  The plaintiff testified that he has worked full-time
so far this year.  He has adopted his new business model and makes money not
only from his own labour but also from the labour of subcontractors.

[187]     The total
net past income loss is therefore about $12,000, sustained during the six-plus
months he was off work in 2008.

Conclusion

[188]     I endorse
the approach of Mr. Taunton suggesting that an estimate of loss is the best
that can be accomplished under this heading.  This is because of the various difficulties
that arise from the fact that the plaintiff was not on salary, had been
operating his business for only a brief time before the MVA, and has financial
records which are less than satisfactory.

[189]     I consider
the defendant’s argument that the total past wage loss claim is $12,000, all
arising from the first year after the MVA.  I consider as well the opinion of
Mr. Taunton that the best estimate is $50,945 over the “five-year period”. 
Both those figures are after-tax estimates.

[190]     I consider
that some wage loss in the year after the MVA may have been the result of
alcohol and cocaine use.  It is impossible to do more than estimate what that
amount would be.  I consider as well that the period of time taken off work in
2010, after the birth of his son, is not supported by evidence of medical need,
and my conclusion under this head of damages allows for only minimal reimbursement
for that time period.

[191]     I consider
as well that the lack of sufficient paperwork, which might have provided for
estimates with a greater degree of certainty, is totally a consequence of the
plaintiff’s failure to keep and/or provide satisfactory records.

[192]     I also
consider that the trajectory of the plaintiff’s income was ascending prior to
the MVA, that he did better than the average first-year business in that year,
and that he also did better in the first year after the MVA (when one takes
into account that a number of months were missed from work immediately after
the MVA).  If not for the MVA, he would have earned more.

[193]     I am
satisfied that the plaintiff has suffered a past wage loss greater than the
$12,000 advanced by the defendant, and less than the $50,945 advanced by the
plaintiff.

[194]     Considering
all the foregoing, I am satisfied that the plaintiff’s past wage loss/loss of
opportunity for the “five-year period” following the MVA is $40,000, after
taxes.  I award damages in that amount.

Loss of Future Earning
Capacity

The
Plaintiff’s Argument

[195]     The
considerations concerning Mr. Taunton’s evidence and opinions discussed
under past wage loss are equally applicable under this heading.

[196]     Mr. Taunton
assumes, based upon the information he received from Mr. Lawless and Dr. Powers,
that the plaintiff will be changing jobs.  The plaintiff agrees that it is
inevitable that he will need to change jobs.

[197]     In his
report, Mr. Taunton notes that “future loss is calculated as the
difference between expected without-accident future employment income on the
one hand… and expected with-accident future employment income on the other…”

[198]     Again, at
the risk of over-simplification, Mr. Taunton provides charts and tables
calculating how much the plaintiff would earn from the first day of trial until
he turns 65 years old (2040), if he were able to continue working and earning
on the tools as he had been before the MVA.

[199]     He then makes
the same calculations with respect to a number of different potential jobs that
the plaintiff had expressed some interest in when speaking with Mr. Lawless
and Dr. Powers.

[200]     With
respect to all of the foregoing, Mr. Taunton took into account the various
contingencies and adjustments that are traditionally recognized by economists
as necessary to be considered when preparing opinions of this sort.

[201]     Invariably,
when the projected earnings for each of the proposed careers are compared with
the projected earnings of the plaintiff if he were able to continue his pre-MVA
work, the latter is always higher.

[202]     Therefore,
by subtracting the projected earnings of each of the other proposed careers
from those of the plaintiff’s pre-MVA career, his future wage loss arising from
each alternate proposed career can be estimated.

[203]     Projected
earnings are provided for various alternative careers − a hotel front desk clerk, a
delivery/courier driver, a retail salesman, other service supervisors, a
construction inspector, a real estate agent, and construction operations.

[204]     The
plaintiff has expressed that, if he is forced to change careers, he has a clear
preference to re-train in, and pursue a career in, construction operations. 
This is also consistent with what Dr. Powers has recommended.

[205]     Mr. Taunton
notes that if the plaintiff does become employed or self-employed in
construction operations after training, his income will far exceed what he
would earn if he simply hired workers at $45 per hour while billing them out at
$35 per hour.

[206]     Mr. Taunton’s
calculations suggest that the income he would have earned until age 65, had he
been capable of working at his pre-MVA career, would have been $1,131,809.  In
construction operations, his projected income over the same period would be
$757,025, that is, $374,784 less than what he would have earned in his current
career.  If a purely mathematical approach is taken, the latter figure is Mr. Taunton’s
estimate of the plaintiff’s future wage loss.

[207]     The
plaintiff argues that a more accurate determination of the loss would be even
greater than what Mr. Taunton’s calculations suggest.  This is because, in
determining projected earnings for the plaintiff’s current career, Mr. Taunton
used the median income as where the plaintiff would fall in comparison with
others doing the same work.  The plaintiff argues that Mr. Taunton should
not have used the median, but rather a higher percentile than 50%.  This is so
because the plaintiff performed higher than the median in his first year of
work (the only year prior to the MVA), and also higher than the median in the
first year after the MVA (when one considers that he was only able to work for
part of the year as a result of his injuries).  If a higher, and more fair,
figure were attributed to the plaintiff than the median, then his projected
income would be significantly higher for each year all the way up to age 65.

[208]     The
plaintiff submits that a more realistic and equitable award for future loss of
capacity would be in the range of $450,000.

[209]     The
plaintiff also notes that if he is required to take nine months off work to
re-train, he will receive no income during that period and should be
compensated for that as well.

The
Defendant’s Argument

[210]     The
question is whether the plaintiff has proven that there is a real and
substantial possibility of a future event leading to an income loss.

[211]     The
evidence suggests that there is not such a real and substantial possibility of
a future loss in this case.  Rather, it suggests that the plaintiff will
continue to "tough it out", work on the tools, supplement that by
hiring assistants, and thereby make more money in the future than he has ever
made in the past, and more than he would make in construction operations.

[212]     Mr. Taunton
agreed that, if the plaintiff continues to work and earn what he earned in the
most recent year (even not taking into account the “under the table” work), his
"with accident" income will look almost identical to the
"without accident" table in his report.  That is, there will be no
future income loss.

[213]     Further, Mr. Taunton’s
calculations do not take into account “under the table” income including the job
of that nature that the plaintiff admitted to in 2012.

Conclusion

[214]     I note
that Mr. Taunton concludes that the future loss will be $374,784.  The
plaintiff argues that it in fact will be closer to $450,000.  The defendant
argues that the future loss of earning capacity is zero.

[215]     There is
no dispute about the law.  It is enshrined in numerous cases which most
recently find their expression in Perren v. Lalari, 2010 BCCA 140,
recently confirmed in Morgan v. Galbraith, 2013 BCCA 305.

[216]     I am
satisfied, on the basis of the evidence, that there is a real and substantial
possibility of a future event leading to an income loss.  The loss arises from
the plaintiff’s inability to continue to work at the physical work which he was
doing pre-MVA, and has continued to do, although to a lesser extent, post-MVA. 
In my view, his ability to do that and to earn money from it will continue to
diminish in the future.

[217]    
While Mr. Taunton’s approach is useful, it is a purely mathematical
approach, and is not the dominant consideration in this analysis in this case. 
The proper approach in this case is the capital asset approach.  The four
questions in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 must be asked
regarding whether:

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

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

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

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

[218]     The answer
to each of those four questions is “yes”.  The plaintiff is less valuable to
himself and to others in all the senses that those four questions raise.

[219]     The
weakness with Mr. Taunton’s approach is that it assumes that the plaintiff will
stop working on the tools immediately and begin earning the lesser income of a
construction operations manager.   Clearly that is not what will happen.  In
that regard, the defendant is partially correct −
the plaintiff will continue to “tough it out”.

[220]     However,
it is also equally clear that the plaintiff will not be able to “tough it out”
indefinitely.  Even while toughing it out, he will earn less income than he
would otherwise have earned, and his ability to earn income in that way will
continue to decrease.  Precisely how long he will continue to do this can only
be estimated.

[221]     It is
clear that the plaintiff will need, eventually, to re-train.  When he will
decide to do that is also something which can only be estimated.  If, and when,
he finally decides to do so, he will begin to earn the lesser income of a
construction operations manager.

[222]     While it
may be true that the plaintiff has modified and adapted to his work, he will in
the meantime continue to be less valuable to himself and to those who might
hire him as a worker.  As Dr. Krywaniuk says, "a loss is still a
loss."

[223]     Mr.
Taunton estimates the plaintiff’s current annual without-accident income at approximately
$60,000.  In the circumstances of this case, I am satisfied that the
appropriate method for determination of the loss of the plaintiff’s capital
asset is 18 months of income.  Therefore, the value of the capital asset, and
the value of its loss, to the plaintiff is $90,000.

[224]     However, there
is another component to the question of his future loss.  If he takes the
re-training course in construction operations that has been recommended to him,
and if he takes it full-time, it will mean nine months without work, and
therefore without income.  The plaintiff argues that (in addition to the cost
of the program), he should be reimbursed for what will be lost income for that
entire nine months.  The defendant says that he is not likely to take the
course in any event, and if he does take it, he is not likely to complete it. 
Further, he is even less likely to complete it if he takes it full-time, than
if he takes it part-time.  The expert witnesses have recommended that he should
take it part-time and that this will maximize the chance that he will complete
the program.  If he does take it part-time, it means that he will be able to
work during the days, and therefore there will be no wage loss which arises.

[225]     He has
indicated a desire to take the program and I find that he is likely to attempt
to do so.  While it is true that the experts have recommended that he should
take it part-time, he has himself expressed doubt about his ability to complete
it on a part-time basis, precisely because will be working during the day and
too tired to bring the energy required to taking the course in the evening. 
His personal view is that he will have a better chance of completing the course
if he takes it on a full-time basis.

[226]     I am not
satisfied that his own view that there is a greater likelihood of completing
the course on a full-time basis should be rejected over the contrary review of
the experts.  In my view, he must be given the opportunity to complete the
course in the way he believes maximizes his chances to complete it.  The proper
way to accomplish that is to allow for nine months future wage loss, but to
discount that amount based on the fact that he may not complete the course.  I
am satisfied that the correct amount of that discount should be 20%.

[227]     I
calculate nine months of future wage loss in the following way.  I have already
noted that Mr. Taunton has estimated the plaintiff’s current without-accident
income at around $60,000 per year.  That amount will be discounted by 20%
resulting in a loss of $48,000.

[228]     Therefore,
the award for future wage loss is the total of $90,000 plus $48,000 equalling $138,000.

Special Damages

Plaintiff’s
Argument

[229]     The
plaintiff claims reimbursement for the cost of medication, some of which has
already been repaid.  The outstanding amounts total $119.92.

[230]     The
plaintiff also seeks reimbursement for the following outstanding medical
expenses:

Hastings Village Medical
Clinic     $ 65

Total Therapy Rehabilitation         $135

Hastings Community Centre –      $ 48

one-month gym membership

Feldenkrais Centre (physio) $
75

Total                                           $323

[231]     Therefore,
the totality of the plaintiff’s claim for outstanding special damages is
$442.92.

The Defendant’s
Argument

[232]     The
defendant agrees that the plaintiff is entitled to be reimbursed for all of the
foregoing expenses, but for one.

[233]     She
disputes the claim for the gym membership at the Hastings Community Centre,
arguing that the plaintiff acknowledged on cross-examination that his
attendance there had nothing to do with the MVA.  The plaintiff testified that
this gym membership was to assist him in training, specifically swimming, for
the Ironman.

[234]     The defendant
therefore argues that only $394.92 is properly owing.

Conclusion

[235]     The
plaintiff argues that the $48 spent at the Hastings Community Centre was, at
least in part, required as a result of the MVA.

[236]     I am
satisfied that the gym membership was required and used by the plaintiff as a
result of both his injuries from the MVA and his training for the Ironman.  The
defendant will be required to reimburse the plaintiff for $24 of that amount.

[237]     The total
of special damages to be repaid is therefore $418.92.

Cost of Future Care

Plaintiff’s
Argument

[238]     The
plaintiff claims compensation for the cost of future care in a number of areas.

Botox Treatments

[239]     The evidence
suggests the plaintiff should have three botox treatments in addition to the
one he has already had.  The cost will be $393.03 each for a total of
$1,179.09.

Kinesiology

[240]     The
evidence suggests that the plaintiff should have six sessions for a total,
including G.S.T., of $441.

Psychological Therapy

[241]     The
evidence suggests that the plaintiff should have psychological therapy.  The
suggestion is 25 sessions at $175 per session, plus G.S.T., for a total of
$4,593.75.

Occupational Therapy and
Services

[242]     Mr. Leaker
recommends occupational therapy services at a rate of $5,316 for the first
year, and thereafter follow-up visits at the rate of $623.09 per year.

[243]     Mr. Leaker
also recommends memory aides at an annual price of $336, and Cognitive Remedial
Training at a cost of $1,500 to $2,500.

[244]     Mr. Taunton
provides calculations, taking into account various contingencies and life
expectancy, and determines that the lump sum present value of all of the
foregoing is $27,330.  That is the amount claimed by the plaintiff.

Vocational Consulting

[245]     The
plaintiff claims that he requires vocational consulting with Dr. Powers
for 12 sessions at a total cost, including G.S.T., of $1,575.

Home Maintenance

[246]     The
plaintiff claims that he will be unable to do maintenance around his own home,
when he finally purchases one.  This is something that, prior to the MVA, he
would have done on his own.  He will now have to pay for it.  He will no longer
be able to do window washing, painting, wall washing, gutter cleaning, and
gardening/yard work.

[247]     The
plaintiff claims $10,000 for the future cost of this loss.

Construction Operations
Program

[248]     The
plaintiff claims the cost of the BCIT Construction Operations Program
recommended by Dr. Powers.  The cost of the program, including G.S.T., is
$10,347.75.

The Defendant’s
Argument

Botox Treatments

[249]     It might
be reasonable for the plaintiff to have more botox injections, although it has
been several years since his first injection and he has not bothered to have
another.

Kinesiology

[250]     The
plaintiff is clearly very physically fit and has already shown that he is not
interested in structured physiotherapy.  He has attended once in the last four
years, and is not likely to attend in the future.

Psychological Therapy

[251]     The
plaintiff has already demonstrated his unwillingness to attend counselling or
psychotherapy.  He agreed that he does not think he is the type of person who
needs counselling and that if he has to take time out from working and
supporting his family, he will not do it.  He is unlikely to attend for psychological
therapy.

Occupational Therapy and
Services

[252]     The OT
services recommended by Mr. Leaker are excessive and totally unnecessary. 
The plaintiff does not need constant monitoring and assistance.  He has already
demonstrated his ability to work over the past four years.  Even if they were
necessary, it is unlikely that the plaintiff would use such services.

Vocational Consulting with
Dr. Powers

[253]     The
vocational consulting with Dr. Powers is unnecessary.  There is no
evidence that the plaintiff requires any vocational counselling, let alone 12
sessions.  This is not referred to in Dr. Powers’ report, nor is there any
evidence about the cost of vocational counselling.

Home Maintenance

[254]     The
plaintiff testified that if there is maintenance to be done at the house, he
does it, although "there’s no maintenance really required".

Construction Operations
Program

[255]     The BCIT
construction operations course might be reasonable if the plaintiff were unable
to continue working in his present job.  All of the evidence, except for that
of the plaintiff himself, suggests that his greatest likelihood of success will
be if he takes the course part-time.  If he does do so, he can then continue to
work during the days.

[256]     The OT
services recommended by Mr. Leaker, the vocational consulting referred to
by Dr. Powers, and the BCIT course are somewhat duplicative.  If he attends
the BCIT course, he will not need the other two.

Conclusion

[257]     The test
for establishing a claim for cost of future care is set out in Milina v.
Bartsch, 1985 CanLII 179 (BCSC).  The test for determining the appropriate
award is an objective one based on medical evidence.  There must be a medical
justification for claims for cost of future care and the claims must be
reasonable.  Further, if the evidence shows that the plaintiff is unlikely to
use the services recommended, awards for those services should not be made: Izony
v. Weidlich, 2006 BCSC 1315, and Coulter (Guardian ad litem) v. Leduc,
2005 BCCA 199.

[258]     Cases that
support a Loss of Housekeeping Capacity are:

1. Kroeker
v. Jansen, [1995] B.C.J. No. 724 (BCCA) – see paragraphs 2 – 9, 20

2. Easton v. Chrunka, 2006
BCSC 1396 – paragraphs 43 – 47

3. McTavish v. MacGillivray, 2000 BCCA 164 –
paragraphs 24 – 52

Botox Treatments

[259]     The
plaintiff took one Botox treatment after the injury and testified that he found
it helpful and that he would take more.  I am satisfied that he would do so. 
Therefore, I allow the claim for this amount in full: $1,179.09.

Kinesiology

[260]     I agree
with the defendant that the past history of, and indications from, the
plaintiff suggest that it is as likely as not that he will not attend. 
Therefore, I am discounting the amount claimed by 50%.  The amount awarded is
$220.50.

Psychological Therapy

[261]     I agree
with the defendant that the past history of, and indications from, the
plaintiff suggest that it is as likely as not that he will not attend. 
Therefore, I am discounting the amount claimed by 50%.  The amount awarded is
$2,296.87.

Occupational Therapy

[262]     I agree
with the defendant that the past history of, and indications from, the
plaintiff suggest that it is as likely as not that he will not attend. 
Therefore, I am discounting the amount claimed by 50%.  The amount awarded is
$13,665.

Vocational Consulting

[263]     I agree
with the defendant that there is no evidence about the cost of this service. 
Therefore, the amount awarded is zero.

Home Maintenance

[264]     There is
no evidence about what these amounts would be, although I am satisfied that
this is something which I can estimate.  Having said that, there is no evidence
with respect to when the plaintiff might purchase his own home and begin to
incur such expenses.  The amount awarded is $5,000.

Construction Operations

[265]     I have
already indicated that the plaintiff must re-train in this field, but that
there is a risk that he will choose not to do so or will not succeed.  I have discounted
the wage loss to be incurred by 20%.  It is appropriate that the cost of the
program be discounted by the same amount.  The amount awarded is $8,278.20.

FAILURE TO MITIGATE

The
Defendant’s Argument

[266]     The
plaintiff’s failure to mitigate is two-fold.  First, he caused or worsened his
own psychological state by drinking and using cocaine which contributed to his
disability.  Second, he has refused or neglected to access counselling that has
been recommended.

Alcohol and Cocaine Use

[267]     The
plaintiff told Dr. le Nobel that he was drinking and using cocaine to
reduce his pain and because he was grieving about the loss of his girlfriend’s
pregnancy.  Dr. le Nobel testified that the plaintiff’s low mood and use of
alcohol and cocaine contributed to his disability.

[268]     Dr. Travlos
testified that alcohol is a depressant and that it is not a treatment for
depression or pain.

[269]     It is not
as if the plaintiff did not have access to prescription medication.  Dr. Patel
testified that in November 2008 to January 2009 he did not ask for prescription
medication or more powerful painkillers, but had he done so, she would have
given him a prescription for Tylenol 3 and would have considered Naproxen as
well.

Refusal of Counselling

[270]     Damages
are not recoverable for any loss that the plaintiff reasonably could have
avoided.  The question of whether a person has been reasonable in refusing
recommended treatment is one for the trier of fact to decide, taking into
account the degree of risk from the treatment, the gravity of the consequences
of refusing it, and the potential benefit to be derived from it: Janiak v.
Ippolito, [1985] 1 S.C.R. 146.

[271]     Both Dr. Patel
and Dr. Krywaniuk told the plaintiff that he should have counselling, but
he has not done so.  He agreed that he does not think he is the type of person
who needs counselling and that if he has to take time out from working and
supporting his family, he will not do it.

[272]     Either the
plaintiff’s problems were not so serious that such intervention was necessary,
or he has failed to mitigate.  A reduction in the plaintiff’s non-pecuniary
award is justified.

[273]     In Qiao
v. Buckley, 2008 BCSC 1782, the plaintiff suffered from chronic pain and
anxiety as a result of a car accident.  Her family doctor and psychiatrist
recommended psychotherapy, but the plaintiff declined it.  The court reduced
her non-pecuniary award by 30%.

Conclusion

[274]     The burden
is on the defendant to establish that the plaintiff has failed to mitigate his
damages.  In my view, the evidence fails to meet that burden.  I am not
satisfied that the plaintiff has failed to mitigate.

[275]     I have
already noted and considered that the plaintiff’s alcohol and cocaine use after
the MVA may have had an effect on his past wage loss/loss of earning capacity. 
I am not satisfied that it reflects a further failure to mitigate, or an
increase in his disability, in any additional compensable amount.

[276]     With
respect to his failure to take counselling, I am not satisfied that this
reflects a failure to mitigate or justifies a reduction in any portion of the
plaintiff’s damages.  His refusal to attend counselling is consistent with the
evidence I have heard about the plaintiff’s propensity to “tough it out”.  That
character trait has resulted in the plaintiff’s past wage loss/loss of
opportunity being lower than what it might otherwise be.  It would be
unreasonable, and counter-intuitive, to provide the defendant with a further
economic advantage by further discounting the plaintiff’s damages as a result
of what is essentially the same character trait.

SUMMARY

[277]    
Summary of damage awards:

“Silverman
J.”

_______________________________

The
Honourable Mr. Justice Silverman