IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130724

Docket: M102282

Registry:
Vancouver

Between:

Thomas Jones
a.k.a. Thomas Jones Jr.

Plaintiff

And

Yankaia Arjun and Yellow
Cab Company Ltd.

Defendants

Before: The Honourable Madam
Justice Ballance

Reasons for Judgment

TABLE OF
CONTENTS

INTRODUCTION.. 4

BACKGROUND.. 4

●  Career prior to 2006. 4

●  Career change. 5

●  Toastmasters and other
activities. 6

●  Health before the 2008
Accident 7

(i)  Low back complaints. 7

(ii)  Depression, anxiety and
difficulty with sleep. 9

●  The 2008 Accident 10

●  Post-2008 Accident Medical
Evidence. 10

(i)  Symptoms from the 2008
Accident to August 9, 2009. 10

(ii)  Symptoms from approximately
August 9, 2009 until the 2011 Accident 13

(iii)  Manual Therapies before the
2011 Accident 17

●  The 2011 Accident 17

●  Medical Evidence after the
2011 Accident 17

●  ADHD Diagnosis – 2012. 19

●  Post-2008 Accident non-work
activities. 19

●  Evidence of Friends and
Colleague. 21

(i)  Berold Baijius. 21

(ii)  Jacqueline Legatt 21

(iii)  Christopher Simmons. 23

●  Dr. John le Nobel 23

●  Mr. Jones’s Credibility. 28

●  Overview of the Parties’
Positions. 35

CAUSATION.. 36

●  Basic Principles. 36

●  Analysis. 39

DAMAGES. 41

●  Basic Principles. 41

●  Non-Pecuniary Damages. 42

●  Loss of Earning Capacity. 45

●  Past Loss. 47

●  The Economic Experts. 48

(i)  Darren Benning. 48

The Earnings Approach. 49

The Ranking Approach. 50

(ii)  Kevin Turnbull 50

(iii)  Discussion. 52

●  Future Loss. 55

●  Special Damages. 57

●  Cost of Future Care. 58

●  Mitigation. 60

COSTS. 61

INTRODUCTION

[1]            
This proceeding arises from a motor vehicle accident that occurred on August 9,
2008 (the “2008 Accident”).  Liability for the 2008 Accident has been admitted.

[2]            
The plaintiff, Thomas Jones, was involved in a subsequent collision nearly
three years later on June 23, 2011 (the “2011 Accident”).  At the time of
the trial, no action had been commenced with respect to the 2011 Accident.

[3]            
Mr. Jones claims that the 2008 Accident caused him physical and
psychological injuries, which were further aggravated by the 2011 Accident, and
have led to chronic pain.  He seeks damages under the usual heads relative to
both collisions from the defendants to this action.

BACKGROUND

[4]            
Mr. Jones is currently 59 years old.  He is an educated man, having
obtained a Master’s Degree in Public Administration in 1996 from the Governors
State University in Illinois and a Master’s Degree in Organizational Management
from the University of Phoenix in 2000.

[5]            
Mr. Jones has overcome significant personal challenges throughout
his life.  He is a recovering alcoholic and drug addict and, since
approximately 1982, has been a devoted adherent to Narcotics Anonymous (“NA”). 
He also testified to having a gambling addiction.

●      Career
prior to 2006

[6]            
In 1992, Mr. Jones moved with his family from Chicago to British
Columbia to work for Envirotest Canada, the independent contractor hired to
operate the provincial AirCare program.  Within a year or so of his arrival, he
was promoted to the position of general manager.  While on a work assignment overseas,
Mr. Jones became ill with a bout of severe asthma, an affliction he has
suffered from his entire life, and returned home.  After spending several
months of recuperation, he decided not to resume his work at Envirotest and left
its employ.

[7]            
Soon after his departure from Envirotest, Mr. Jones exercised his
employee stock options from which he derived significant proceeds, totaling
approximately $523,000.  He testified that he had devised a “master plan” to
use those funds as a base from which to build a larger investment portfolio through
day trading.  He explained that within just a few months, his trading spiraled
out of control and he was essentially gambling the money away.  Mr. Jones
claimed that he lost substantially all of his stock option money within a
relatively short period of time.  To compound his deteriorating financial
situation, he failed to pay his personal income taxes attributable to the
redemption of his stock options.  Over time, his tax indebtedness swelled to
about $500,000.

[8]            
The evidence was not well-developed as to Mr. Jones’s work and
sources of income over the next two or so years after his unsuccessful foray into
day trading.  There was evidence that in about 2002, he tried his hand at
developing business plans for others, but that endeavour “never took off” and it
generated only about $3,000 to $4,000 annually.  As I understand his
evidence, he also did contract work for various companies, but was not able to reliably
recall what his earnings were in those years.

[9]            
Due to his crushing income tax indebtedness, Mr. Jones assigned
himself into bankruptcy on May 3, 2005.  According to the bankruptcy
documents in evidence, his proven unsecured debts at that time were reported to
exceed $800,000 and he had virtually no corresponding assets.

●      Career
change

[10]        
At this point in his life, in his early 50s and with no retirement
savings, Mr. Jones realized he was going to have to find a new career path
if he was ever to recover financially.  He believed that real estate would
present him with financial rewards and opportunities and decided to pursue that
goal.

[11]        
In early 2006, Mr. Jones started work as a realtor with Royal
LePage at the City Centre office.  The evidence establishes that he was a
motivated and hard-working agent.  He was in the office on a regular basis and
spent portions of his weekdays and weekends were spent with buyers and sellers,
showing and viewing properties.  Mr. Jones happily devoted between 60 and
70 hours each week to learning the business and generating a client base, and
he “loved” every minute of it.

[12]        
Christopher Simmons is a co-owner of the Royal LePage agency where Mr. Jones
works as well as two other real estate brokerage firms.  He has vast experience
in the local real estate industry.

[13]        
Mr. Simmons described the essential tasks of an agent as “finding
buyers and listing sellers”.  Noting that the majority of real estate business
is done by word of mouth referrals, Mr. Simmons explained that the
foundation to a successful career is the ability to convert meetings with people
interested in buying or selling property, into concrete business opportunities.

●      Toastmasters
and other activities

[14]        
Mr. Jones understood the need to market himself to build clientele to
succeed as an agent.  With that objective in mind, in 2006 he joined the
Tillicum Toastmasters club in New Westminster.  Mr. Simmons has high
regard for Toastmasters and the sphere of influence it offers to realtors.

[15]        
Toastmasters was a good fit for Mr. Jones.  His involvement with
the organization helped him fine tune his leadership and networking skills.  In
his first year, he was distinguished as “Rookie of the Year” and, before the 2008
Accident, he was awarded the honour of “Toastmaster of the Year” for
2007-2008.  He quickly assumed a role on the executive board.

[16]        
As mentioned, Mr. Jones is a long-standing member of NA.  Before
the 2008 Accident, he ordinarily attended two or three meetings each week.  His
favourite was the “breakfast on the step” gathering early Saturday mornings.  He
had been en route to that meeting when he was involved in the 2008
Accident.

[17]        
Every four to six weeks, Mr. Jones volunteered at various detox and
pretrial confinement facilities in order to discuss the principles of NA with
drug addicts.  Many times he acted in the role of sponsor for other NA
members.  In 2003, he became a sponsor to Berold Baijius.  They attended NA
meetings together and their association developed into a lasting friendship.

[18]        
I accept Mr. Jones’s evidence that before the 2008 Accident, he
walked “all the time”.  He walked mostly for recreation, either with friends or
alone, but also took clients on walking tours of properties in the downtown
core.

●      Health
before the 2008 Accident

[19]        
Mr. Jones disclosed that he had a pre-existing history of
complaints of anxiety, depression, panic attacks, insomnia, fatigue, stress and
low back pain, as summarized below.  He maintained, however, that his health
was generally “okay” before the 2008 Accident.

(i)             
Low back complaints

[20]        
It is not disputed that Mr. Jones experienced low back pain from
time to time before the 2008 Accident.

[21]        
In April 2001, he began seeing Dr. Victor Sam for chiropractic
treatment mainly for those symptoms.  He explained that his low back pain
would flare up intermittently, but did not impact his ability to work and typically
resolved after a few adjustments by Dr. Sam.  According to Mr. Jones,
he did not have a “major issue” with his low back before the 2008 Accident.

[22]        
Dr. Sam does not believe in performing “maintenance” treatments,
which he defined as seeing patients on a regular basis to maintain their spinal
health.  His approach is to treat his patients until the examination findings
are normal and they confirm they feel better.  Dr. Sam’s evidence, which
I found credible, supported Mr. Jones’s testimony.  He classified Mr. Jones’s
low back pain as “treatable” before the 2008 Accident, testifying that it would
ordinarily subside after just a few sessions, and there would be considerable
gaps of time between appointments.  Long intervals, sometimes well over a year,
passed between Mr. Jones’s chiropractic sessions.

[23]        
More specifically, Dr. Sam’s records show that Mr. Jones
received chiropractic treatment intermittently as follows:

·      
six times in 2001, ending on July 31;

·      
no treatment from August 1, 2001 until May 2003;

·      
three treatments in May 2003;

·      
no treatment from May 21, 2003 until October 2004;

·      
three treatments, in October 2004;

·      
no treatments from October 13, 2004 until March 21,
2006;

·      
eight treatments in 2006 between March and December;

·      
two treatments in May-June 2007;

·      
nine treatments between September and November 1, 2007;

·      
no treatments from November 5, 2007 until after the 2008
Accident.

[24]        
As will be seen, that pattern changed dramatically after the 2008
Accident.

[25]        
Dr. Andrew Birch became Mr. Jones’s family physician in January 2005
and saw him regularly throughout that year and several times during 2006.  On
none of those visits did Dr. Birch document complaints of back pain or
soft tissue/musculoskeletal pain of any kind.  According to Dr. Birch’s records,
Mr. Jones’s first complaint of low back pain was on July 12, 2007. 
Following that initial complaint, he consulted Dr. Birch about his back twice
more that year.  At that time, Dr. Birch assessed low back strain/sprain.

[26]        
Mr. Jones had two medical appointments in 2008 before the 2008
Accident where he reported low back pain, at which time Dr. Birch charted
his low back problems/pain as “chronic”.  At trial, Dr. Birch explained
that his notation of “chronic” in respect of the May 2, 2008 appointment meant
that Mr. Jones had not experienced the pain for just a few days, but had
felt it for a longer period and with fluctuating intensity on an intermittent
basis.  At that visit, Dr. Birch suggested to Mr. Jones that he
obtain a booklet called “The Back Doctor” and follow the exercises it recommended. 
He also referred Mr. Jones for an x-ray of his lumbar spine, which showed the
presence of some spasm in the low back.

(ii)           
Depression, anxiety and difficulty with sleep

[27]        
More persistent than his low back pain before the 2008 Accident were Mr. Jones’s
symptoms of depression, anxiety and insomnia.  He first reported them to Dr. Birch
when he was in the throes of declaring bankruptcy in 2005, which was obviously
an overwhelmingly stressful time for Mr. Jones.  He disclosed to Dr. Birch
that he was having suicidal ideation.  Of the seven further appointments in
2005, Dr. Birch charted feelings of depression and/or anxiety at four of
them.

[28]        
On January 7, 2006, Mr. Jones told Dr. Birch that he had
been having panic attacks.  Based on Dr. Birch’s records, Mr. Jones
next complained to him of depression some seven months later on August 8,
at which stage Dr. Birch prescribed the antidepressant Effexor.  Mr. Jones
had approximately nine further visits with Dr. Birch between August 9,
2006 and the 2008 Accident.  During the majority of them, he continued to
report symptoms of anxiety, depression and sometimes stress and insomnia.

[29]        
Mr. Jones acknowledged that he had been battling issues of
depression and anxiety before the 2008 Accident and offered, as at least a
partial explanation, the fact that he was having marital difficulties and
significant financial problems within that timeline.  His testimony finds
support in Dr. Birch’s corresponding records which contain notations of
his bankruptcy and financial concerns and “personal problems, relationship
problems” during the appointments in which Mr. Jones was complaining of
such symptoms.

[30]        
Mr. Jones maintained that, despite experiencing these symptoms
before the 2008 Accident, he remained an upbeat and positive person in general.

[31]        
In about February 2008, Dr. Birch referred Mr. Jones to
the sleep disorders program at UBC Hospital to address his sleep apnea.

●      The
2008 Accident

[32]        
The essential facts surrounding the occurrence of the 2008 Accident are
not in dispute.

[33]        
On the morning of August 9, 2008, Mr. Jones was driving to his
NA breakfast meeting in downtown Vancouver.  He was wearing his seatbelt.  He
approached the intersection on a green light and, as he proceeded through, he noticed
a yellow taxicab out of the corner of his eye just a moment before it struck
the passenger side of the front of his vehicle.  The force of the impact threw Mr. Jones’s
body to the left, causing that side of his head to strike against the window.

[34]        
Mr. Jones testified that upon impact, he felt a “pop” on the right
side of his back and immediately afterward felt extreme pain along the right
side from his waist to his hip, stiffness and an intense throbbing and shooting
pain in the area between his shoulder blades, severe neck pain and pain and
other symptoms throughout his entire back.  He also said that he had an intense
headache and felt nauseous and dazed.  He recalled being helped out of his
vehicle by emergency personnel and being attended to by the ambulance crew at
the scene.

[35]        
Mr. Jones’s vehicle was not fit to be driven.  His friend, Mr. Baijius,
picked him up and drove him to their NA breakfast meeting.  Mr. Baijius
credibly recalled that Mr. Jones complained of pain when he collected him
at the scene and that it was evident that he was experiencing pain in his low
back.  After the meeting, Mr. Baijius dropped Mr. Jones at a car
rental location and carried on with his day.

[36]        
Later that afternoon, Mr. Jones went to the emergency department of
the hospital, where he complained of nausea, headache and neck and back pain. 
He was discharged and advised to follow up with his family doctor.

●      Post-2008
Accident Medical Evidence

(i)             
Symptoms from the 2008 Accident to August 9, 2009

[37]        
As summarized below, after the 2008 Accident Mr. Jones was treated
by Dr. Birch, as well as various other practitioners, including a massage
therapist, chiropractors, an acupuncturist and a physiotherapist who performed
intramuscular stimulation therapy (“IMS”).

[38]        
Mr. Jones saw Dr. Birch within days of the 2008 Accident.  He
complained of  headaches and pain in his forehead, neck, upper back, mid back
and low back.  On examination, Dr. Birch found tenderness over the areas
complained of, along with decreased range of motion in his neck and back.  He
diagnosed neck and back sprain and strain with spasm, and muscle tension
headaches.  He prescribed a muscle relaxant and advised Mr. Jones to use
ice, Advil, and to rest and have chiropractic and massage treatments, as
required.  It is clear that Mr. Jones also sustained a bump and swelling
to the left side of his head that left him feeling dazed.  That injury resolved
within a week or so.

[39]        
In his follow-up visit approximately two weeks later, Dr. Birch charted
headaches and low back strain.  He also noted that Mr. Jones’s mood had
improved with the use of the antidepressant Effexor that he had started before
the 2008 Accident, and increased his dosage from 75 to 150 mg.

[40]        
Mr. Jones saw Dr. Birch regularly for the remainder of 2008
and throughout 2009.  Within that timeframe, he variously complained of severe headaches,
pain in his neck which he ranked as 7 on a scale of 10, and pain throughout his
back, the area between his shoulder blades, and along his lower right side.

[41]        
The defendants endeavoured to make much of the fact that certain of
these symptoms were not documented by Dr. Birch or were only charted
infrequently.  As I will discuss later in my Reasons, I conclude that
nothing turns on those omissions in this case.  This is also a convenient place
to note that, throughout his testimony, Mr. Jones quantified the intensity
of his pain throughout the relevant timeline by referring to a pain scale of 1
to 10.  Unfortunately, his understanding of the descriptors corresponding to
each level was not adequately explored at trial.  That said, he did explain
that when his pain reached a level of 7 or 8, he would take an Advil or
aspirin.  Digesting the evidence as a whole, I have concluded that Mr. Jones’s
classification of pain at the 4 to 5 level corresponded to pain on the mild to
moderate side; 6 to 8 referred to pain at a moderate to intense degree and
above 8 referred to severe pain.

[42]        
Mr. Jones testified that the pain from his headaches wrapped around
his entire head, including his forehead.  His evidence is that six months after
the 2008 Accident, their frequency tapered off to a few times per week.  He
stated that within the same period the pain between his shoulder blades likewise
became progressively less severe and more infrequent.

[43]        
Mr. Jones described the pain along his right lower flank as being constant
in the weeks following the 2008 Accident and remaining ongoing at six months, although
varying in intensity between 7 and 9 on the 10-point scale.  He testified that his
neck pain improved somewhat after the first six months, but that his neck still
“creaked” when he moved it left to right, and that turning it to the outer
extremes triggered heightened pain.  He also detailed the injuries caused by
the 2008 Accident to his back.  The pain and tightness in his upper back area
dissipated significantly and bothered him only slightly after six months or so. 
Although his mid-back was mildly tender, it was not the source of any pain and
presented no difficulties.

[44]        
Mr. Jones’s low back, however, was an entirely different story.  He
claims that it was by far the most serious of the injuries stemming from the
2008 Accident.  He testified that he felt the onset of low back pain
immediately after the 2008 Accident, and that it remained constant at a level
of about 9 or 9.5 in the weeks that followed.  He described suffering low back
symptoms at that intense degree until he started acupuncture treatments in April 2009,
which provided him some relief and reduced his pain to a level of approximately
7.

[45]        
Also in April 2009, Mr. Jones underwent a CT scan of his
lumbar spine on referral by Dr. Birch.  Dr. Birch testified that the
scan showed a slight disc protrusion at the L4-5 level.

[46]        
From time to time Dr. Birch provided Mr. Jones with samples of
pain medication and prescribed various other medications to help Mr. Jones
manage.  Dr. Birch testified that because of Mr. Jones’s history of
substance abuse, he was not keen on taking narcotic-type medication or
medication that might become addictive.

[47]        
Mr. Jones testified that he intermittently experienced nausea after
the 2008 Accident, which settled completely within six months.

[48]        
Mr. Jones had seldom slept through the night as an adult.  He testified
that because of the resultant pain from the 2008 Accident, the quality of his
sleep deteriorated even further.  He found it difficult to get into a
comfortable position and sometimes needed to get up in the middle of the night
in order to stretch as a means of coping with his discomfort.  He testified that
the adverse effect on his sleep brought on by the sequelae of the 2008 Accident
caused a decline in his mood and general demeanour.  He testified that he felt
like an entirely different person after the 2008 Accident in that he was
irritable, less tolerant of other people, and distracted by and fixated on his
pain.

[49]        
Because his soft tissue symptoms were not improving, Dr. Birch
referred Mr. Jones for an assessment by a physiatrist, Dr. Cecil
Herschler on April 9, 2009.  That appointment did not take place until October 2010.

(ii)           
Symptoms from approximately August 9, 2009 until the 2011 Accident

[50]        
At the one-year mark after the 2008 Accident, Mr. Jones’s headaches
had decreased to a frequency of once or twice a week and had considerably
diminished in intensity.  Over the course of the next year, he experienced them
only “the odd time”, perhaps a couple of times a month.

[51]        
Mr. Jones stated that from August 2009 until the 2011
Accident, he continued to have ongoing tightness and soreness to the touch
remaining in the area between his shoulder blades.  His neck pain had improved
by the first anniversary of the 2008 Accident and manifested only a few times
per week, appearing to be triggered by certain physical movements.  He
experienced less neck pain overall during the following year, although sudden
movements of his neck could bring on severe pain from time to time.

[52]        
Between August 2009 and the 2011 Accident, Mr. Jones felt
discomfort in his upper back and mild tenderness in his mid-back, but did not experience
any real pain in either of those regions.  He testified that about a year after
the 2008 Accident, the pain along his right side persisted but had lessened in
severity, depending on his activities.  In contrast, he claimed that his low
back pain remained constant, although at a reduced intensity of between 6 and
6.5.

[53]        
In the first six months of 2010, Mr. Jones saw Dr. Birch five
times with complaints of low, mid and upper back pain and right hip pain.  On May 26
that year, Dr. Birch completed a CL-19 medical report provided by the
Insurance Corporation of British Columbia (“ICBC”), in which he recorded palpatory
tenderness, pain and limitations in Mr. Jones’s neck and down the rest of
his spine.  He classified Mr. Jones’s 2008 Accident-related injuries as a
grade II injury to his neck and upper back, and a grade III injury to
his low back, and diagnosed muscle tension headaches and neck and back sprain. 
On the form Dr. Birch noted that Mr. Jones required further sessions
of physiotherapy and massage therapy.  Based on his discussions with Mr. Jones
about his work duties, he also wrote that Mr. Jones was not able to walk
or stand for prolonged periods which thereby reduced his ability to work by
about 50%.  Dr. Birch further recorded that Mr. Jones was able to
carry out non-work activities with pain as tolerated.

[54]        
In cross-examination, defence counsel attempted to challenge Dr. Birch’s
diagnosis of neck injury by putting to him that he had it not documented any
complaint of neck pain from September 2008 until the 2011 Accident, other
than in the CL-19 report itself.  Dr. Birch explained that he does not
have time during each visit to record all of a patient’s complaints.  He added
that in order to answer the question, he would have to review his records;
however, counsel did not invite him to do so.  The clear implication of Dr. Birch’s
evidence was that Mr. Jones could have complained about neck pain and
other symptoms and he simply may not have charted it.

[55]        
Moreover, the factual proposition put to Dr. Birch to the effect
that there had been no reported complaints of neck pain within this timeframe
was not entirely correct.  The records show that Dr. Birch referred Mr. Jones
to physiotherapy on April 12, 2010, for neck and back sprain.  As well,
his chart documented a complaint of neck pain on May 11, 2010.  To this
I would add, the fact that on that May visit Dr. Birch recorded
tenderness of Mr. Jones’s back but did not record tenderness of his neck,
does not mean that Mr. Jones’s complaint of neck pain was not genuine, as
the defendants appeared to suggest.

[56]        
The evidence establishes that Mr. Jones also continued to
experience problems with his sleep and symptoms of fatigue during this period
of time.  In cross-examination, Dr. Birch rejected the proposition that Mr. Jones’s
complaints of fatigue were due to his sleep apnea, explaining that connection
had been ruled out.  He went on to agree that the fatigue could be related to Mr. Jones’s
depression or pain or both.

[57]        
On October 27, 2010 Mr. Jones was seen by Dr. Herschler. 
Dr. Herschler testified at trial in the capacity of a consulting
physiatrist.  He was not called as an expert witness and provided no opinion
evidence as to causation.

[58]        
At the consult, Dr. Herschler had none of Mr. Jones’s pre-2008
Accident records or his documented medical history.  The focus of Mr. Jones’s
complaints to Dr. Herschler were his low back pain and the pain that ran
along his lower right side that had been ongoing since the 2008 Accident.  Dr. Herschler’s
understanding was that at the time of the 2008 Accident, Mr. Jones was “pain-free”
and not complaining of back pain.  At trial, Dr. Herschler elaborated that
Mr. Jones told him that he had no low back pain on the day of or before
the 2008 Accident.  Because he was unaware of any past episodes of low back
pain, he assumed that Mr. Jones had experienced none for the purposes of
his assessment.

[59]        
Mr. Jones did not mention to Dr. Herschler symptoms of any
lingering neck pain or pain in his shoulder region or upper back, or headaches. 
He testified that although he continued to experience such symptoms including
specifically, neck problems and light headaches, when he was seen by Dr. Herschler,
his paramount concern was his low back because it was the chief source of his
pain and he therefore did not raise with Dr. Herschler his less bothersome
symptoms.  His explanation is plausible.

[60]        
On examination, Dr. Herschler found that movements of Mr. Jones’s
lumbar spine were affected by pain and that he was limited in flexion,
extension, rotation and tilting to the right.  Palpitation of the lumbar spine
and adjacent right paraspinals and right buttock triggered pain.  Movements of Mr. Jones’s
head, neck and shoulders were normal.

[61]        
Based on Dr. Herschler’s physical findings on examination and what
he understood to be Mr. Jones’s relevant history, which was incomplete, Dr. Herschler
diagnosed soft tissue injuries to Mr. Jones’s right low back, as well as evidence
of a disc injury at the L4-5 of the lumbar spine, which he considered was also
a probable source of pain.

[62]        
In his report to Dr. Birch, Dr. Herschler recommended that Mr. Jones
receive nine, one-hour treatments of pulsed electromagnetic field therapy.  At
$2,000, the treatments were expensive and, according to Mr. Jones, because
ICBC refused to cover the sessions, he did not proceed with that therapy.

[63]        
Mr. Jones continued to complain to Dr. Birch of low back pain and
depression between January and June 2011.  Dr. Birch advised him
to resume his IMS treatment as it had previously provided him with considerable
symptomatic relief.  Dr. Birch assessed chronic pain and depression and
gave Mr. Jones samples of another antidepressant medication known to help
with chronic pain symptoms.  On April 12, 2011, he referred Mr. Jones
to a chronic pain clinic.

(iii)         
Manual Therapies before the 2011 Accident

[64]        
Within weeks of the 2008 Accident, Mr. Jones began massage therapy
and treatments from a new chiropractor, Dr. Truong.  In 2008, he had a total
of 64 such sessions.  The number of his combined treatments tallied 104 in 2009
and another 95 the next year.  Mr. Jones also returned to Dr. Sam for
some of his chiropractic care and received treatment from him in conjunction
with Dr. Truong from time to time between January 2010 and March 2011. 
He also continued to receive regular massage therapy throughout 2011 before the
2011 Accident.  As mentioned earlier, he also had acupuncture starting in the
spring of 2009 and received IMS therapy at least 28 times between the spring of
2010 and April 2011.  According to Mr. Jones, the above sessions
variously treated his neck, right side and low back, and provided him with
varying degrees of symptomatic relief.

[65]        
 Of Mr. Jones’s therapists, only Dr. Sam testified.  His
treatments had concentrated mainly on the low back and, to a lesser extent, the
right side/hip area and left foot.  During three appointments between February 21
and March 25, 2011, Dr. Sam documented complaints of neck pain as
well.

[66]        
Dr. Sam testified that, will unlike Mr. Jones’s back symptoms
before the 2008 Accident, he was not able to successfully treat those symptoms after
the 2008 Accident, and last saw Mr. Jones on March 25, 2011.

[67]        
The medical charts of the other therapists were not in evidence.

●      The
2011 Accident

[68]        
There was little evidence about the circumstances surrounding the 2011
Accident beyond Mr. Jones’s uncontradicted testimony that the rear of his
vehicle was struck by a truck.

●      Medical
Evidence after the 2011 Accident

[69]        
Mr. Jones saw Dr. Birch the day after this 2011 Accident.  He
reported that his neck had snapped forward and back in the collision.  Dr. Birch
noted tenderness in Mr. Jones’s neck and upper back area.  He testified
that Mr. Jones’s neck and upper back injuries were typical of a rear-end
collision and that the 2011 Accident affected those areas considerably more
than Mr. Jones’s low back.

[70]        
Throughout the ensuing six months, Dr. Birch charted complaints
relating to Mr. Jones’s neck and upper back, as well as symptoms of
depression and anxiety.  He explained that the cause of Mr. Jones’s
depression was multifactorial and included continuing relationship
difficulties, chronic pain and his reduced ability to work.  In the fall of 2011,
Dr. Birch referred Mr. Jones to a mood disorder clinic.  I find
that he made the referral because of Mr. Jones’s depression, and not to
address his symptoms that were later diagnosed as attention deficit
hyperactivity disorder (“ADHD”).

[71]        
Mr. Jones continued to see Dr. Birch in 2012 in respect of his
neck, upper back, mid back and low back pain.  Dr. Birch continued to
prescribe various medications for chronic pain and recommended that Mr. Jones
resume his IMS therapy.

[72]        
In terms of Mr. Jones’s evidence about his injuries in the
aftermath of the 2011 Accident, he testified that it caused an exacerbation of
his headaches and a worsening of his upper back, low back, right side, neck,
and shoulder area symptoms in varying degrees.  More specifically, he testified
that since the 2011 Accident, he has felt moderate pain in his temple area a
couple of times a week and, at the time of trial, was still having headaches with
that frequency and intensity.  He also described that his low back had worsened
slightly as a result of the 2011 Accident, but then had subsequently improved. 
Mr. Jones said that he continues to feel constant low back pain, which he
ranks to be mostly between 6 to 6.5, with flares a couple of times a week that feel
as high as an 8.  He testified that the pain in his right side went back up
to approximately 7.5 after the 2011 Accident.  He currently experiences pain
and even a throbbing in his right side on an almost constant basis, which he quantifies
at 6 to 6.5.

[73]        
Mr. Jones testified that after the 2011 Accident, the pain between
his shoulder blades was “bad” for about two months.  He said he felt a constant
tightness in that region which, when touched, would produce a shooting
electrical sensation down his back.  At the time of trial, that area remained
tight and painful.  Mr. Jones also testified that the 2011 Accident
aggravated his upper back symptoms, describing them at the time of trial as
tight with moderate pain.  His mid back remained tender as well.

[74]        
According to Mr. Jones, his neck pain was significantly exacerbated
by the 2011 Accident and he currently struggles with it on an ongoing basis. 
He stated that after the 2011 Accident he continued to face ongoing
difficulties with his mood and demeanour.

●      ADHD
Diagnosis – 2012

[75]        
In early 2012, Mr. Jones was diagnosed with ADHD.  He confirmed
that the symptoms related to this disorder include anxiety, difficulty
focussing, disorganization, hyperfocus, distraction and memory problems. 
I accept his evidence that he has struggled with these symptoms throughout
his life.

[76]        
Mr. Jones agreed that his distractibility, in particular, occasionally
impacted his work as a realtor to the point where, for some period of time, he
relied on an assistant to remind him of his appointments and do some of the legwork.
However, he functioned without that administrative support most of the time.  Mr. Jones
insisted that his condition did not adversely affect his job as a realtor,
explaining that his tendency to hyperfocus actually assisted his performance
with clients and that he did not miss appointments.

[77]        
Mr. Jones’s accomplishments as a realtor before the 2008 Accident
lend support to his evidence on this point, and I accept it as accurate.

●      Post-2008
Accident non-work activities

[78]        
Mr. Jones remained a member of Toastmasters after the 2008 Accident
and spent approximately ten hours per week participating in that activity. 
According to him, however, he modified aspects of his physical involvement in
Toastmasters after the 2008 Accident.  He assumed more of a leadership role in
the sense that he delegated the majority of his physical responsibilities, such
as setting up meeting rooms and lifting lecterns.  He testified that if he was
not able to delegate demanding physical tasks, he simply omitted doing them.

[79]        
Mr. Jones explained that his volunteer work with Toastmasters was
completely different from what was required of him as an effective real estate
agent.  He found Toastmasters to be the one outlet that distracted him from his
pain and he described his association with it as a “powerful thing” that
probably “saved my life” after the 2008 Accident.  He ascended the executive board
of his Toastmasters division.  In 2008-2009, he became the Lieutenant-Governor
of Marketing; in 2009-2010 he rose to the rank of Lieutenant-Governor of
Education; and the year after that, acted as the District Governor.  All were volunteer
positions.  He also received a leadership award and was part of a team that was
recognized for distinguishing itself.  At the time of trial, he held the post
of Past District Governor and was no longer an active member of the executive. 
Since the 2008 Accident, Mr. Jones has attended a small number of
Toastmasters conventions here and in the United States.

[80]        
Soon after the 2008 Accident, Mr. Jones found himself forever complaining
about his pain during work, at Toastmasters gatherings and at his NA meetings. 
He persuasively testified that he felt consumed by his pain and would
constantly “whine” about it to his clients, co-workers and friends.  His pain
distracted him during client meetings, causing him to fidget and repeatedly
modify his posture.

[81]        
Mr. Jones testified that after the 2008 Accident, he curtailed on his
involvement in NA.  He also decreased his community service such that he was
only attending one or two detox centers once every 3 to 4 months.

[82]        
Mr. Jones testified that after about two years, he grew “sick and
tired” of listening to his own incessant “whining” about his pain and made a
conscious effort to stop and refocus.  Attempting to embark on a fresh start,
he left his home division of Toastmasters and joined a new club.  He also
joined a different NA group.

●      Evidence
of Friends and Colleague

(i)             
Berold Baijius

[83]        
In a typical week before the 2008 Accident, Mr. Baijius and Mr. Jones
would see one another twice and speak regularly over the telephone.  Their
conversations covered business matters and the core ideals of NA.  Mr. Baijius
described Mr. Jones as an active, positive, outgoing, ambitious man, who
was full of hope and had a gregarious nature before the 2008 Accident.  He
regularly observed him setting up the chairs and tables for the NA meetings and
stacking them away afterwards.  He testified that periodically, approximately
every few months Mr. Jones would complain of aches and pains.  To Mr. Baijius’s
mind, those complaints were no greater or different than those made by any
other middle-aged man.

[84]        
Mr. Baijius credibly recalled that, after the 2008 Accident, Mr. Jones
complained of pain almost every time they spoke.  He noticed that Mr. Jones
became far more introverted and even reclusive.  By late 2010, he appeared to
be hiding away and tended not to return Mr. Baijius’s telephone calls. 
However, Mr. Baijius was persistent in his attempts to keep in touch with
his friend and would repeatedly dial his number until Mr. Jones would
finally answer.  On occasion, he even went to Mr. Jones’s residence in an
effort to track him down.  He recalled that Mr. Jones’s presence at the NA
home meetings became sparse about a year after the 2008 Accident.  He also
noticed that his friend was not able to set up tables and chairs or sit for
long periods of time, and would excuse himself from meetings before they had
finished.  They hardly ever attend NA meetings together anymore.

[85]        
Mr. Baijius recalled that when they did get together, they did not have
fun and “joke around” as they had before the 2008 Accident.

[86]        
Mr. Baijius was a thoroughly credible witness.

(ii)           
Jacqueline Legatt

[87]        
Ms. Legatt has known Mr. Jones since 2000 or 2001.  She, too,
was wholly credible.

[88]        
She stated that she and Mr. Jones would ordinarily chat on the
telephone several times a week, and would meet up for coffee or a bite to eat
once a week on average.  She described him as a workaholic, energetic, engaged
and stimulated by the business world.  She found that Mr. Jones looked on
the bright side of things and was generally upbeat.  She understood from him that
he felt he had made the right choice in becoming a realtor, and was excited
about building his career.

[89]        
Ms. Legatt testified to the dramatic decline she witnessed in Mr. Jones
after the 2008 Accident.  She recalled that he complained about his pain every
time she saw him, and repeatedly told her that he was in pain when he walked,
drove, slept and did other activities.  He seemed absorbed by his physical pain.

[90]        
Ms. Legatt was adamant that Mr. Jones’s mood had “absolutely
declined” after the 2008 Accident.  He became irritable, impatient and less
sympathetic to other people.  He was quick to take offense from a casual
comment and just as quick to make a snide remark.  She also noticed that his
high level of energy was easily depleted.  As had Mr. Baijius, Ms. Legatt
sensed that Mr. Jones was withdrawing and avoiding her.

[91]        
Ms. Legatt had been aware of Mr. Jones’s financial troubles that
preceded his bankruptcy in 2005.  She had loaned him the sum of about $2,500 in
that timeframe, which he repaid.  She believed it was possible that she may
have loaned him additional funds after he declared bankruptcy, but the
particulars of that loan were not explored in the evidence.

[92]        
Ms. Legatt retained Mr. Jones as her real estate agent for a short
time in November and December 2010, and found him to be impatient and
inconsistent in his performance.  Her perception was that he was applying
pressure on her to sell and buy quickly and was more concerned about his own
needs as a realtor than about hers as a client.  Mr. Jones was also
unresponsive, failing to return her calls in a timely way, and sometimes not at
all.  Ms. Legatt eventually felt that she had little choice but to sever
their working relationship and would not use him as her agent again.  These
unfortunate circumstances took a toll on their friendship and they have drifted
apart.  Ms. Legatt had not seen Mr. Jones for eight or nine months
before the trial.

(iii)         
Christopher Simmons

[93]        
Mr. Simmons described Mr. Jones before the 2008 Accident as an
affable, gregarious person with a good sense of humour and effective
communication and presentation skills.  In addition to working in sales, Mr. Jones
gave skill-based training sessions to new agents at Royal LePage on a quarterly
basis.  In his inaugural year in 2006, Mr. Jones’s gross commissions from
Royal LePage were $24,000.  His first full year as a real estate agent in 2007
turned out to be a banner year for him.  He was involved in many transactions
and ranked as the sixth highest earning agent at Royal LePage that year.  Mr. Jones
also won the Royal LePage President Gold Level Award in recognition of
performing in the top 10% tier of realtors.  Mr. Simmons explained that it
is uncommon for a junior agent like Mr. Jones to achieve such an
accomplishment in his second year.

[94]        
 In Mr. Simmons’s estimation, Mr. Jones was coming along
nicely as an agent and was a rising star in the industry prior to the 2008
Accident.

[95]        
He testified that since the 2008 Accident, Mr. Jones has been in
the office on a reduced and irregular basis.  He has observed an adverse change
in Mr. Jones’s overall mood, and noticed that he has difficulty in
sitting, standing and maintaining one position for very long.  He described Mr. Jones’s
performance as an agent after the 2008 Accident as disappointing.

[96]        
Mr. Simmons was also a credible witness.  I accept as accurate
his evidence as well as the testimony of Mr. Baijius and Ms. Legatt.

●       Dr. John le Nobel

[97]        
Dr. le Nobel is a specialist in the field of physical medicine
and rehabilitation.  He assessed Mr. Jones on October 27, 2011, and
his expert report dated November 7, 2011 was tendered by Mr. Jones as opinion
evidence.

[98]        
Dr. le Nobel had reviewed the records of Dr. Birch and Dr. Sam,
as well as other pertinent medical documentation.  He was aware that Mr. Jones
experienced musculoskeletal symptoms for some years before the 2008 Accident
and was being treated for depression and anxiety at the time of the 2008
Accident.

[99]        
Mr. Jones told Dr. le Nobel that he believed his low back
pain had been worsened by the 2008 Accident in that it had become more constant
and functionally limiting.  He also said that he believed that the pain
associated with his neck, upper body, low back and buttock were made worse by
the 2011 Accident.

[100]      In
explaining his low back pain to Dr. le Nobel, Mr. Jones described
it as being always present to some extent, although fluctuating in intensity. 
He reported that the pain was aggravated with certain postures and movements
such as sitting, driving, bending, arching backward, and crossing his right
ankle over his left knee.  Dr. le Nobel asked Mr. Jones about Dr. Birch’s
chart entries in April 2008 that recorded complaints of low back pain. 
However, Mr. Jones was not able to articulate that aspect of his history.

[101]     Mr. Jones
said that the ache and pain in his neck never fully disappeared, although it
subsided somewhat when he laid flat.  Tilting his head and even coughing could
aggravate the pain and he felt it more intensely when he was tired.  Dr. le Nobel
noted that Mr. Jones reported pain in his neck when he put his hands on
the top of his head and pushed downward.  As well, he complained of aggravated
pain at the extremes of its range of motion.  Mr. Jones reported to Dr. le Nobel
that his mood had deteriorated since the 2008 Accident.  He described himself
as becoming short-tempered and less tolerant.  He also recounted a brief period
of discontinuous memory after the 2008 Accident, and said that he currently
encountered problems with forgetfulness.

[102]     Mr. Jones
did not feel pain on palpation of his lumbar spine, nor did Dr. le Nobel
detect any spasms.  He did, however, report pain when his lumbar spine was
extended while lying down.  In cross-examination, Dr. le Nobel did
not agree that the absence of pain on palpation was unusual given Mr. Jones’s
chronic condition, clarifying that not infrequently people with chronic pain do
not complain of pain on palpation.  While his thoracic range of rotation was
lower than normal, he did not report pain with that movement.

[103]     Dr. le Nobel’s
view was that Mr. Jones’s neck was the area of greatest pain after the 2011
Accident.  That observation is consistent with Mr. Jones’s testimony.

[104]     Based on
the time elapsed since the 2008 Accident and Mr. Jones’s ongoing pain over
more than three years, Dr. le Nobel diagnosed Mr. Jones’s pain
as chronic.  He defined chronic pain as pain that persists for longer than the
10 to 12 months that it is felt tissue ordinarily requires to heal.

[105]     In Dr. le Nobel’s
opinion:

(i)             
Mr. Jones suffered injuries to his spine as a result of the 2008
Accident and has chronic pain;

(ii)            
the 2011 Accident  aggravated Mr. Jones’s spinal symptoms, with
the  greatest intensity in his cervical spine and paraspinal areas;

(iii)           
absent  the 2008 Accident, Mr. Jones would likely have been more
resilient to the effects of the 2011 Accident; and

(iv)          
absent both accidents, Mr. Jones would have potentially been better
able to cope with the psychological and emotional challenges of his difficult
marital relationship.  In this regard, Dr. le Nobel understood that Mr. Jones
separated from his wife in approximately December 2008 or early 2009, and
assumed that the relationship was stressful at the time of the 2008 Accident.  I
am satisfied that his understanding was accurate.

[106]     Mr. Jones
reported to Dr. le Nobel that he had difficulty concentrating on his
work because he was distracted by his pain and depression.  Dr. le Nobel
testified that the onset of Mr. Jones’s spinal pain from the 2008 Accident
interfered with his work productivity and focus.  In his opinion, absent both
accidents, Mr. Jones likely would not have experienced the reduction in
work productivity that he reported since the 2008 Accident, and would have been
able to maintain his capacity for interacting with others at a higher level of
connection than has been the case.

[107]     Defence
counsel described to Dr. le Nobel the various tasks associated with
the top executive positions in Toastmasters held by Mr. Jones after the
2008 Accident.  Dr. le Nobel would not agree that the performance of
any of those duties necessary entailed considerable interaction with others.  Nor
would he agree with the proposition that the fact that Mr. Jones was able
to carry on in Toastmasters after the accidents meant that the injuries he sustained
had no adverse effect on his real estate career.  Dr. le Nobel
stressed that the proposition was especially tenuous if Mr. Jones
delegated the demands of his Toastmasters obligations, which Mr. Jones had
credibly testified that he had done.

[108]     Dr. le Nobel
also opined that Mr. Jones’s present cognitive difficulties are
multifactorial and contributed to by a combination of chronic pain, sleep
difficulties, low mood and anxiety, as well as any direct cognitive effects
that may have been sustained from the 2008 Accident.  He favoured further
assessment by a neuropsychologist if a more in depth, quantitative evaluation
of Mr. Jones’s cognitive abilities was required.

[109]     Dr. le Nobel
offered a guarded prognosis for Mr. Jones.  He explained that the longer a
chronic pain condition and disability persist, the more likely they will
continue into the future.  In his opinion, barring some as yet unachieved
improvement, Mr. Jones’s account of unresolved pain for more than three
years is an indication that he will continue to suffer and feel limited in his
capabilities, most likely for the next several years and possibly longer.  He
also holds the view is that Mr. Jones has not been maximally medically
investigated, and suggested that a further review in 12 to 18 months might be
useful in providing a complete prognosis.  Dr. le Nobel also
recommended there be further imaging of Mr. Jones’s cervical and lumbar
spine and pelvis.  Those investigations had not been carried out at the time of
trial.

[110]     Dr. le Nobel
did not specifically assess Mr. Jones’s mood and agreed that he did not present
with a flat affect, was not emotionally labile, and did not appear to be
depressed during the assessment.  Even so, he recommended that Mr. Jones be
assessed by a psychiatrist, explaining that patients with chronic pain and
reduced capabilities not infrequently suffer a deterioration in mood and sleep
quality.  He cautioned that unless those aspects of the post-injury state are
addressed concurrently with attempts to reduce pain and increase tolerance to
activity, the chances of achieving successful rehabilitation are reduced.  It
is Dr. le Nobel’s view that a psychiatrist would be able to comment
on the optimum treatment of Mr. Jones’s anxiety and mood difficulty.

[111]     Additional
recommendations for Mr. Jones made by Dr. le Nobel include a
program of fitness reconditioning with strength training and stretching and
low-impact cardiovascular training several days per week.  To facilitate that
course of rehabilitation, he suggested liberal access to an exercise facility
over a period of 12 to 14 months, and that guidance from a kinesiologist
several times per month could be of help.

[112]     Recognizing
that Mr. Jones’s pain symptoms would be subject to aggravation when
performing this active rehabilitation, Dr. le Nobel also recommended
that pain modulating measures, such as pharmacological and manual treatments like
massage therapy, may be beneficial.  He also endorsed Mr. Jones’s attendance
at a multidisciplinary, exercise-based pain clinic.  As it turns out, Mr. Jones
was scheduled to begin his sessions at such a clinic after the evidence portion
of the trial had been completed.

[113]     To Dr. le Nobel’s
mind, the use of a portable TENS device may also be a helpful addition to Mr. Jones’s
regimen.  Other recommendations to help minimize his low back symptoms included
review of his work areas to determine if there could be ergonomic improvements made
to reduce the aggravation to his back with prolonged sitting, and judicious use
of a low back support, and possibly a heated seat feature in his car.

[114]     Dr. le Nobel
impressed me as a well-informed and balanced expert.  His opinions were not
assailed in cross-examination in any meaningful way, and the defendants
provided no expert evidence to contradict them.  That is so even though they
arranged for Mr. Jones to be assessed by Dr. Robert McGraw, an
orthopedic surgeon, in September 2011.

[115]     I accept
Dr. le Nobel’s opinions across the board.

●      Mr. Jones’s
Credibility

[116]     Assessing
the credibility and reliability of a witness is fundamental to the judicial
task, and yet is notoriously difficult.  It has been acknowledged that the
determination is not purely intellectual but is more an art.  The factors
involved can be challenging to verbalize: R. v. R.E.M., 2008 SCC 51
at para. 49.

[117]     Mr. Jones’s
credibility and the reliability of his evidence are key in determining his
pre-existing physical and psychological health, the nature, severity and
causation of his injuries, and ultimately the quantum of his damages.  The
assessment is also material to the weight to be given to the medical opinions to
the extent that they are fastened upon his subjective reporting, perception of
his symptoms, and the recitation of his condition before, between and after the
accidents.

[118]     The
defendants used Mr. Jones’s bankruptcy as grounds for a full-scale attack
on his credibility.  They assert that his incomplete disclosure of relevant
financial information in that proceeding is emblematic of a larger tendency to obfuscate
his true financial picture in this action.  They characterize Mr. Jones as
a vague and plainly inaccurate historian as it concerns the nature of his work
and associated earnings in the years leading up to becoming a realtor, and in
reference to his physical and emotional health before and after the collisions.
The defendants were likewise critical of his professed impairment of capacity
to work following the 2008 Accident, which they submit is not adequately supported
by the medical evidence.  They contend that Mr. Jones has not been
forthcoming on these key issues, among others, and that he embellished his
testimony with the goal of promoting his interests in this litigation over the
truth.  Below is a sampling of some of the alleged deficiencies.

[119]     Jennifer
McCracken is a senior manager with Mr. Jones’s trustee in bankruptcy, and is
a licensed trustee in her own right tasked with the responsibility of
overseeing Mr. Jones’s bankruptcy file.  She was a thoroughly credible
witness.

[120]      Ms. McCracken
explained that in 2006 the Canada Revenue Agency (“CRA”) opposed Mr. Jones’s
application to be discharged from bankruptcy due to his failure to provide straightforward
financial reports and income verification documentation.  At that time, his
discharge application was adjourned generally.  Mr. Jones’s lack of
disclosure was complicated by the fact that for a number of years before his
assignment into bankruptcy, he had evidently not operated a personal bank
account, although his testimony on the matter struck me as somewhat confused or
possibly inconsistent.

[121]     Mr. Jones
re-applied for discharge in late 2010.  On January 5, 2011, he attended a
discharge hearing that was adjourned over to May 4, 2011 to enable him to answer
questions posed by CRA, which continued to oppose his discharge, and to supply
additional information to both it and his trustee.  At the time of trial, the requested
documents had not been furnished by Mr. Jones and he remained undischarged.
Mr. Jones’s perception is that his trustee in bankruptcy concurs with the
CRA in opposing his discharge and thus no longer represents his interests.  He
questioned why he would give documents to his trustee in such circumstances, and
yet in the next breath promised that he would “take care of it really, really
soon”.

[122]     In support
of his discharge application, Mr. Jones had sworn an affidavit to which he
exhibited statements of his monthly income and expenses spanning a period of
five years, ending November 2010 (the “Monthly Statements”).  He was cross-examined
extensively about them.

[123]     Emphasizing
that the Monthly Statements reveal that his personal expenses in 2008 and 2010
significantly exceeded his reported net business income for tax purposes, the
defendants sought to ground the inference that Mr. Jones may well have
enjoyed undeclared, and potentially substantial, income in those years.   They
advanced this point as an illustration of Mr. Jones’s fundamentally
tainted credibility and to suggest, inferentially, that he has been more
capable of earning income after the accidents than he cares to disclose, and
has probably been doing just that.

[124]     The
defendants’ comparison of his 2008 and 2010 net income for tax purposes against
the expenses shown in his Monthly Statements overlooks the important fact that
in those years, Mr. Jones claims he had to borrow funds to meet or at
least assist in off-setting his personal expenses, as discussed below.  As
well, the calculation of his net business income under the income tax regime is
not necessarily equivalent to the amount of available income to cover his living
expenses.  In any case, the comparison was unhelpful.

[125]      In January 2007,
the Monthly Statements began to report that Mr. Jones’s household
consisted of just one person.  The defendants say that this indicates that his
marriage had broken down before the 2008 Accident, contrary to his assertions
otherwise, and that his three children had also left the residence.  Mr. Jones
maintained that he and his wife did not separate until December 2008. 
According to him, he simply made an error when he recorded only a single member
of his household in 2007 and 2008.  Support of Mr. Jones’s explanation can
be found in the fact that his claimed living expenses increased rather than
decreased in 2007, which is the opposite to what would have reasonably been
expected in a significantly smaller household.  While they also decreased in
2008, so too did his income and overall they were not appreciably less than the
amounts recorded on his pre-2007 Monthly Statements that had reported five
members of the household.

[126]     It is also
notable that the reported decrease in the size of his household from five
members to one coincided with a point in time that Mr. Jones appeared to
have assumed preparation of the Monthly Statements that had formerly been
completed by his trustee.

[127]     In the
end, this line of questioning went nowhere.  The probabilities of the evidence
satisfy me that Mr. Jones made an inadvertent error reporting there was
only one person in his household in his Monthly Statements.  I am also
satisfied that he and his wife did not separate before December 2008.

[128]     As
mentioned, according to Mr. Jones, a substantial portion of his living
expenses for 2008 were covered by a private loan of $21,600 that he received
from a friend.  He testified that in 2010 his expenses were similarly defrayed,
although to a lesser extent, by way of a smaller loan received from a different
friend or family member.  He recorded these loans in the line item for gifts in
his Monthly Statements.  Mr. Jones claims to have paperwork documenting these
loans, which he has yet to repay, but he did not produce it.  At trial, he
stated that he had assured the individuals who had made the loans that he would
keep their identities confidential and, on that basis, refused to tell the
Court who they were.

[129]      I am not
bothered by the fact that Mr. Jones recorded what he claims are loans in
the line item for gifts in his Monthly Statements.  That is because that is
precisely how Ms. Legatt’s advance to him was characterized in the Monthly
Statements for 2005 and I am satisfied that hers was a genuine loan.

[130]     Mr. Jones
testified that for a number of years before the 2008 Accident, and continuing
afterward, he received a modest amount of cash – somewhere between
approximately $2,000 and $4,000 annually, and averaging about $2,500 – in
payment for business plans he prepared for others.  He did not declare that
income in his personal tax return nor disclose it to his trustee in
bankruptcy.  Mr. Jones had little choice but to admit that, given this
non-disclosure, he had signed his income tax returns those years knowing that
the declaration he was making concerning his income was not entirely true.  He
agreed that those tax returns were only “fairly accurate” as they pertained to his
income.

[131]     Starting
in 2006, Mr. Jones also received a small stipend (approximately $780 per
year) from Royal LePage for the training seminars he gave to new agents.  He
testified that he believed that those monies were included in his tax slips
issued annually by Royal LePage.  Ms. Wiu, an accountant with Royal
LePage, clarified that was not the case, and that it was Mr. Jones’s
responsibility to declare the income he derived from those presentations.

[132]     The
defendants argue that the implausible explanation offered by Mr. Jones to
justify his non-disclosure of even basic particulars of the loans, his
non-compliance with court-ordered disclosure, the repeated failure to make full
financial disclosure in his bankruptcy and the inaccurate completion of his
income tax returns, not only taints his credibility overall, it also casts
confusion about the actual amount of his income and his capacity to work post-accidents.

[133]     Linked to
their criticisms of Mr. Jones’s credibility, is the defendants’ further
complaint that the symptoms he described to his healthcare providers over the
years, including Dr. le Nobel, and those that have been recorded in
the clinical records are mostly based on his subjective self-reporting and do
not amount to “objective evidence of persistent pain”.  Compounding the problem
for Mr. Jones in the eyes of the defence is that his accounts of the
nature and duration of his symptoms were often not reflected in the
corresponding medical records.

[134]     The
defence urges that Mr. Jones’s overall compromised credibility, coupled
with the lack of objective evidence to support his assertions of persistent
pain, calls for the Court to assess his evidence, and particularly the reporting
of his subjective symptoms to his medical treatment providers and this Court,
with scepticism and to discount it unless reliably corroborated.

[135]    
In Edmondson v. Payer, 2011 BCSC 118 (S.C.), aff’d 2012
BCCA 114, at paras. 34-37 N. Smith J. provided instructive commentary on
the evidentiary use of clinical records including the relevance of the patient’s
documented statements and of their absence:

The difficulty with statements in clinical records is that,
because they are only a brief summary or paraphrase, there is no record of
anything else that may have been said and which might in some way explain,
expand upon or qualify a particular doctor’s note. The plaintiff will usually
have no specific recollection of what was said and, when shown the record on
cross-examination, can rarely do more than agree that he or she must have said
what the doctor wrote.

Further difficulties arise when a number of clinical records
made over a lengthy period are being considered. Inconsistencies are almost
inevitable because few people, when asked to describe their condition on
numerous occasions, will use exactly the same words or emphasis each time. As Parrett J. said in Burke-Pietramala v. Samad, 2004
BCSC 470, at paragraph 104:

…the reports are those of a layperson going through a
traumatic and difficult time and one for which she is seeing little, if any, hope
for improvement. Secondly, the histories are those recorded by different
doctors who may well have had different perspectives and different perceptions
of what is important. … I find little surprising in the variations of
the plaintiff’s history in this case, particularly given the human tendency to
reconsider, review and summarize history in light of new information.

While the content of a clinical record may be evidence for
some purposes, the absence of a record is not, in itself, evidence of anything.
For example, the absence of reference to a symptom in a doctor’s notes of a
particular visit cannot be the sole basis for any inference about the existence
or non-existence of that symptom. At most, it indicates only that it was not
the focus of discussion on that occasion.

The same applies to a complete
absence of a clinical record. Except in severe or catastrophic cases, the
injury at issue is not the only thing of consequence in the plaintiff’s life.
There certainly may be cases where a plaintiff’s description of his or her
symptoms is clearly inconsistent with a failure to seek medical attention,
permitting the court to draw adverse conclusions about the plaintiff’s
credibility. But a plaintiff whose condition neither deteriorates nor improves
is not obliged to constantly bother busy doctors with reports that nothing has
changed, particularly if the plaintiff has no reason to expect the doctors will
be able to offer any new or different treatment. Similarly, a plaintiff who
seeks medical attention for unrelated conditions is not obliged to recount the
history of the accident and resulting injury to a doctor who is not being asked
to treat that injury and has no reason to be interested in it.

[136]     Remarks highlighting
the need to take care in the judicial treatment of clinical records along
similar lines can be found in numerous additional authorities.  For example, in
Tsalamandris v. McDonald, 2011 BCSC 1138, Griffin J. noted at para. 133,
in relevant part:

…A treating physician is not
a scribe, writing down everything the patient says verbatim in anticipation of
a future legal battle where every word and every absent word will be
highlighted for significance. Nor is the patient shown the notes at the time,
and so she has no opportunity to correct the misunderstanding of what the
patient said.

[137]     Certain shortcomings
in Mr. Jones’s testimony were the product of his terse and sometimes
abrasive style of communication, and not an attempt to be deliberately evasive
or misleading.  As well, a number of the so-called deficiencies seized upon by
the defendants pertained to minor or collateral matters often arising from
snippets in his medical chart that were of no consequence or did not serve to
impugn Mr. Jones’s credibility in an appreciable way or on central issues.

[138]      However,
I am not completely without concern.  All things considered, Mr. Jones’s
credibility did not emerge unsoiled at the end of cross-examination.

[139]     First,
there is Mr. Jones’s feeble reason purporting to justify his steadfast
refusal to reveal basic particulars of the personal loans, including copies of
the substantiating documents and the names of the persons who advance the
funds.  His testimony about wishing to preserve confidentiality was unconvincing. 
Also troubling is his lack of disclosure of the working copies of his income
tax returns for the years 2005 through 2010 inclusive, despite being ordered by
the Court to provide them.  His pattern of deficient financial disclosure
across a number of circumstances is unimpressive and belies a tendency to
follow a path of concealment and self-interest with respect to his personal
financial matters.

[140]     Cumulatively,
my concerns compel me to approach Mr. Jones’s testimony with extra
caution.  That done, the evidence as a whole is not sufficient to establish
that he has received undeclared income in an amount greater than those he has
testified to, and does not advance the defendants’ theory that he has a much
greater capacity for work than he professes.  Additionally, I am not so
troubled as to conclude that Mr. Jones is a fundamentally discreditable witness
or to require corroborative documentary evidence in order to accept his
testimony about his medical complaints or symptoms before and after the
accidents.  This is partly due to the fact that the lay witnesses called by Mr. Jones
persuasively supported a good deal of his testimony concerning the effects of
the accidents.

●      Overview
of the Parties’ Positions

[141]     Mr. Jones
contends that his pre-existing low back symptoms were infrequent and episodic
and neither they nor his depression interfered with his capacity to work or
were otherwise functionally disabling before or at the time of the 2008
Accident.  To the contrary, he says by that stage he felt that he was finally
turning his life around with his new profession which he loved and for which he
had been receiving considerable positive feedback.  He asserts that the
constellation of his injuries from the 2008 Accident caused him chronic pain
and, in a domino-effect fashion, intensified his already poor sleep, made it
more difficult to cope with his existing financial and marital stress, and
deteriorated his mood and outlook on life.  He alleges that practically all of
the 2008 Accident-induced injuries, especially his neck, were aggravated by the
2011 Accident.

[142]     Mr. Jones
claims that although he continued to work as a real estate agent after the 2008
Accident, his injuries prevented him from getting fully “back on track”,
resulting in adverse financial repercussions.  He lost self-confidence as a
realtor and no longer regarded himself as an up and coming “superstar” in the
industry.

[143]     The
defendants concede that Mr. Jones suffered soft tissue injuries to his
neck and low back as a result of the 2008 Accident.  They assert that, despite
his testimony to the opposite effect, the clinical evidence clearly indicates
that his neck injury resolved within weeks of the 2008 Accident and that he had
recovered from his remaining injuries, other than his low back, before he was
seen by Dr. Herschler on October 27, 2010.  Their position is that,
at the time of the 2008 Accident, Mr. Jones had chronic low back pain that
had been getting worse.  They contend that personal stressors unrelated to the
2008 Accident (e.g. separation from his wife, increased childcare duties, being
an undischarged bankrupt) were responsible for any exacerbation of his
depression and/or adverse impact upon his mood.

[144]     The
defendants reject outright the contention that the injuries Mr. Jones
sustained have caused him any financial loss.  They argue, among other things,
that the sizeable income he enjoyed in 2007 was essentially a stroke of luck,
and that after the 2008 Accident he made a conscious decision to pull back from
his career as a realtor in order to devote more volunteer time to his endeavours
with Toastmasters.  They also suggest that his bankruptcy and the garnishment
of his commission earnings by CRA in respect of his tax indebtedness have acted
as disincentives to continue to invest much effort in his real estate career.

[145]     The defence
also submits that a loss of future work capacity requires a permanent injury
which Mr. Jones has failed to demonstrate.  Building on that assertion,
they make the problematic submission that even if Mr. Jones had diminished
energy, concentration and stamina from the accidents, those frailties would not
impair his earning capacity.  They say further that even if Mr. Jones has
experienced discomfort in the performance of his job duties, because there is
no real and substantial possibility of actual income loss, his discomfort should
be compensated by non-pecuniary damages as was done in Mayenburg v. Lu,
2009 BCSC 1308.

[146]     The
defence also raises mitigation arguments.

CAUSATION

●      Basic
Principles

[147]     For Mr. Jones
to recover damages, there must be a causal link between the accidents and his
injuries.  The law does not draw a distinction between injuries that are
psychological in nature and those that are physical.  The primary test used in
determining causation is known as the “but for” test.  Mr. Jones bears
the burden of showing, on the balance of probabilities, that “but for” the
defendants’ negligent act or omission, his injury would not have occurred.

[148]      A
plaintiff does not need to establish that the defendant’s wrongful conduct is
the sole cause of the injury.  So long as the plaintiff proves a substantial
connection between the injuries and the defendant’s negligence beyond the “de minimus”
range, the defendant will be fully liable for the harm suffered, even if other
causal factors, which the defendant is not responsible for, were at play in
producing the harm: Athey v. Leonati, [1996] 3 S.C.R. 458; Blackwater
v. Plint, 2005 SCC 37; Resurfice Corp. v. Hanke, 2007 SCC 7; Clements
v. Clements, 2012 SCC 32.

[149]     The
causation test does not demand scientific precision and is not to be applied
too rigidly: Snell v. Farrell, [1990] 2 S.C.R. 311.  Causation is a
practical question of fact that can best be answered by ordinary common sense. 
As Dardi J. reminded in Midgley v. Nguyen, 2013 BCSC 693, at para. 172,
the legal concept of causation is different from the more rigorous standard
applied in the medical field that approaches scientific certainty.

[150]     The court
will exercise caution in inferring legal causation by exclusive or substantial
reference to a temporal sequence of events, which may take the form of
comparing the plaintiff’s condition in the pre and post-2008 Accident
scenarios: Madill v. Sithivong, 2012 BCCA 62 at para. 20; White
v. Stonestreet, 2006 BCSC 801 at paras. 74-75.  As I noted in Erickson
v. Sibble, 2012 BCSC 1880, however, it does not follow that the judicial
insistence of caution signifies judicial thinking that temporal reasoning is an
illegitimate analysis or a branch of logic to be seldom invoked: see also, Midgley.

[151]     In light of
the fact that Mr. Jones was involved in two accidents, the issue arises as
to whether the injuries he sustained are divisible or indivisible as between
the two collisions.  That determination is a question of fact and is relevant
to the question of causation as well as to damages: Moore v. Kyba, 2012
BCCA 361 at paras. 36 and 37.

[152]     Divisible
injuries are those capable of being separated and having their damages assessed
independently.  Indivisible injuries are those that cannot be separated out and
have liability attributed to the constituent causes and their damages assessed
independently: Athey; Bradley v. Groves, 2010 BCCA 361 at para. 20;
Blackwater.

[153]     At the
causation stage, the determination of the plaintiff’s injury or injuries as
divisible or indivisible is relevant to the issue of what a defendant is liable
for.  In assessing damages, the characterization is relevant to the question of
the amount of compensation the plaintiff is entitled to receive from a defendant: 
Moore, at paras. 37 and 41.

[154]     Where
there are multiple causes of the plaintiff’s injuries and they are found to be
divisible, the plaintiff can only recover from a defendant the damages
attributable to the injury caused by that particular defendant.  In contrast,
indivisible injuries, whether occasioned by a combination of non-tortious and
tortious causes, or solely by tortious ones, result in joint liability to the
plaintiff.  Absent contributory negligence, the plaintiff can claim the entire
amount from any of them.  As the Court of Appeal pointed out in Bradley
at para. 34, the tortfeasors’ rights to seek contribution and indemnity
from each other and the ultimate apportionment as between themselves under the Negligence
Act, R.S.B.C. 1996, c. 333, is a matter of indifference to the
plaintiff.

[155]     In Bradley,
at para. 37, the Court explained its rejection of the appellant’s argument
that the concepts of aggravation and the indivisibility of injury are different:

We are also unable to accept the
appellant’s submission that “aggravation” and “indivisibility” are
qualitatively different, and require different legal approaches. If a trial
judge finds on the facts of a particular case that subsequent tortious action
has merged with prior tortious action to create an injury that is not
attributable to one particular tortfeasor, then a finding of indivisibility is
inevitable. That one tort made worse what another tort created does not
automatically implicate a thin or crumbling skull approach (as in Blackwater),
if the injuries cannot be distinguished from one another on the facts. Those
doctrines deal with finding the plaintiff’s original position, not with
apportioning liability. The first accident remains a cause of the entire
indivisible injury suffered by the plaintiff under the “but for” approach to
causation endorsed by the Supreme Court of Canada in Resurfice Corp. v. Hanke,
2007 SCC 7, [2007] 1 S.C.R. 333. As noted by McLachlin C.J.C. in that case,
showing that there are multiple causes for an injury will not excuse any
particular tortfeasor found to have caused an injury on a “but-for” test, as “there
is more than one potential cause in virtually all litigated cases of negligence”
(at para. 19). It may be that in some cases, earlier injury and later
injury to the same region of the body are divisible. While it will lie for the
trial judge to decide in the circumstances of each case, it is difficult to see
how the worsening of a single injury could be divided up.

●      Analysis

[156]     Mr. Jones’s
low back pain quickly emerged as the most enduring and functionally limiting
injury stemming from the 2008 Accident.  It was also the only area of his body
in which he had experienced physical symptoms before the 2008 Accident.  Prior
to the 2008 Accident, his low back symptoms usually resolved with a few treatments
by Dr. Sam.  Despite Dr. Birch’s May 2, 2008 notation of the low
back symptoms as “chronic”, his clinical records show that in the pre-2008
Accident timeline, Mr. Jones’s low back complaints to him were infrequent and
increased dramatically in the aftermath of the 2008 Accident.  Similarly, Dr. Sam’s
chiropractic treatments were relatively intermittent before the 2008 Accident but
climbed significantly and proved to be ineffective afterwards.  I conclude that
after the 2008 Accident, the nature, severity and frequency of Mr. Jones’s low
back symptoms were different from and much worse in terms of pain and impact than
beforehand, and that his overall low back condition was significantly
aggravated by the 2008 Accident.

[157]     While the
defendants concede that Mr. Jones sustained soft tissue injuries to his
neck and low back as a result of the 2008 Accident, in my view the 2008
Accident clearly caused him additional injuries.  The evidence establishes that
he also sustained soft tissue injuries to the remainder of his back, including
the region between his shoulder blades and along the right side of his body
from his waist to his hips.  He also took a bump on the head and suffered
nausea and headaches (which were at times severe) for a period of time.  Mr. Jones’s
unresolved physical injuries caused by the 2008 Accident produced chronic pain. 
The ongoing pain had a cascading negative effect in that it weakened his
ability to cope with the other situational stressors he then faced and
contributed in a substantial way, in combination with those stressors, to
aggravate his longstanding difficulties with insomnia and cause his mood and
disposition to decline.

[158]     Although
not entirely clear from their submissions, the defendants seem to concede that Mr. Jones’s
low back problem was aggravated by the 2011 Accident and is an indivisible
injury.  Whether conceded or not, that is clearly the case.

[159]     The
defendant’s assertion that before the 2011 Accident, Mr. Jones had recovered
from all of his injuries caused by the 2008 Accident, other than his low back
symptoms, is not borne out by the preponderance of the evidence, including Mr. Jones’s
testimony on the point, which I accept.  He was still complaining of
headaches and tenderness along his entire spine when Dr. Birch completed
the CL‑19 medical report on May 26, 2010.  I find that the
symptoms Mr. Jones said he felt between his shoulder blades was probably
captured in his complaints of upper back pain.  Dr. Birch charted those
symptoms until May 11, 2010.  Moreover, there was credible evidence that
after the May 11 date, Mr. Jones received physiotherapy and
chiropractic treatments to relieve symptoms attributable to the 2008 Accident
other than his low back, including chiropractic treatment for his neck on at
least three occasions in February and March 2011.  Also important is
that during the April 2010 appointment, Dr. Birch referred
Mr. Jones to physiotherapy for his neck and back sprain.

[160]     As was
recognized by the Court in Edmondson and other like-minded authorities,
the fact that those symptoms were not charted by Dr. Birch after May 11,
2010 does not, of itself, indicate that they had resolved.  This is especially
so in this case where Dr. Birch’s practice is to not record every symptom
mentioned at each visit, and Mr. Jones’s low back represented his dominant
problem and was, therefore, understandably his main focus of discussion when
seeking medical treatment.

[161]     At the
time of the 2011 Accident, Mr. Jones had not fully recovered from the
sequelae of the 2008 Accident.  The evidence satisfies me that his neck pain,
although intermittent and fluctuating in severity, was nonetheless ongoing and
had not settled when the 2011 Accident took place.  The balance of his spinal
symptoms, the pain in his lower flank and between his shoulder blades, his headaches
and the ill-effects of the 2008 Accident on his sleep and mood similarly
lingered.

[162]     Drawing on
Dr. le Nobel’s opinions, I find that had the 2008 Accident not
occurred Mr. Jones would probably have been more resilient to the effects
of the 2011 Accident, and that the former made him more vulnerable to the
effects of the latter.  The evidence establishes that it is more likely than
not that the 2011 Accident significantly aggravated Mr. Jones’s
compromised low back and other spinal symptoms, including his neck and the
region between his shoulder blades, and the pain along his lower right side. 
It also aggravated his headache symptoms brought on by the 2008 Accident.  The
probabilities of the situation indicate that in all likelihood the exacerbation
of these ongoing symptoms adversely affected Mr. Jones’s downcast mood and
low demeanour.

[163]     The
evidence amply establishes that the injuries flowing from the 2011 Accident
merged with the residual injuries of the 2008 Accident to create an injury that
is not attributable to one particular defendant and cannot be distinguished
from one another.  Put another way, the evidence does not support a finding
that the 2011 Accident caused separate and divisible injuries to Mr. Jones. 
To the contrary, it forcefully compels the conclusion that the injuries flowing
from the 2011 Accident were indivisible from the injuries caused by the 2008
Accident and that together they constitute a single indivisible injury to Mr. Jones.

DAMAGES

●      Basic
Principles

[164]     The
essential purpose of damages is to restore, as best as is possible with a
monetary award, an injured plaintiff to the same position he or she would have
been in had the negligence not occurred.

[165]     People
have different physical and psychological susceptibility to injuries.  A
fundamental principle in the assessment of damages is that the defendant must
take the plaintiff as she is.  A plaintiff whose unique psychological makeup or
pre-existing physical condition makes him more vulnerable to sustaining injury
is to be compensated for the entire extent of his injury, both physical and/or
psychological, caused by the defendant’s negligence.  This is so even where due
to some unique feature of the plaintiff, the injury was greater or of a more
dramatic or severe or different type than one would expect an average person to
sustain.  It is no answer for a defendant to say that the plaintiff would have
suffered less injury or a different kind of injury or no injury at all if he or
she had been less susceptible or vulnerable.  It is the impact of the defendant’s
negligence on the actual plaintiff, and not on a fictional one, that is
relevant for compensatory purposes: Athey.

[166]     Equally as
fundamental is that a defendant is not expected to put the plaintiff in a
better position than the plaintiff had been in the moment before the accident
happened.  It is the difference between the plaintiff’s original position with
any attendant risks and shortcomings (e.g. a pre-existing condition) just
before occurrence of the negligent act or omission, and the injured position
after and as a result of such act or omission, that comprises the plaintiff’s
loss: Athey at paras. 34-35.

[167]     A
pre-existing condition, latent or active, is part of the plaintiff’s original
condition.  Where there is a measurable risk that a pre-existing condition
would have resulted in a loss to the plaintiff in the future without the
defendant’s negligence, then that risk of loss must be taken into account in
assessing certain heads of damages and serves to reduce the award: Athey
at para. 35; Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2012
BCCA 331.  The contingency of a pre-existing condition manifesting on its own to
cause a loss at some point does not have to be proven to a certainty – it is
given weight according to its relative likelihood: A.(T.W.N.) v. Clarke,
2003 BCCA 670.

●      Non-Pecuniary
Damages

[168]     Mr. Jones
seeks non-pecuniary damages in the range of $80,000 to $125,000.  The
defendants counter that an award of between $20,000 and $40,000, at most, would
be ample.  They submit that their suggested range reflects Mr. Jones’s
pre-existing low back deficit.

[169]     Non-pecuniary
damages are intended to compensate a plaintiff for the pain, suffering and loss
of enjoyment of life and of amenities experienced as a result of the defendant’s
negligence.  They are meant to compensate for such damages suffered to the date
of trial and those that the plaintiff will suffer into the future.

[170]     The award
should be fair and reasonable for both parties as those concepts are measured
against the adverse impact of the particular injuries on the particular
plaintiff: Hunt v. Ugre, 2012 BCSC 1704 at para. 176.  While
fairness is assessed by reference to awards made in comparable cases, because
each case is decided on its own unique facts and calls for an individualized
assessment, it is neither possible nor desirable to develop a “tariff”: Lindal
v. Lindal, [1981] 2 S.C.R. 629 at 637; Dilello v. Montgomery, 2005
BCCA 56 at 25.  The process is one of assessment and is not amenable to
mathematical precision: Drodge v. Kozak, 2011 BCSC 1316; Trites v.
Penner, 2010 BCSC 882; Lindal.

[171]     In Stapley
v. Hejslet, 2006 BCCA 34 at para. 46, Kirkpatrick J.A. set out a
non-exhaustive list of factors to be considered in awarding damages under this
head.  They include: the plaintiff’s age; the nature of the injury; the
severity and duration of the pain; disability; emotional suffering; loss or
impairment of life; impairment of family, marital and social relationships;
impairment of physical and mental abilities; loss of lifestyle; and the
plaintiff’s stoicism.

[172]     Mr. Jones
did not suffer headaches or symptoms in his mid or upper back, between his
shoulder blades or along his lower right flank prior to the 2008 Accident. 
Although he had a history of recurring episodes of low back pain, there was no
cogent evidence that before the 2008 Accident, those symptoms impaired his
ability to work or to participate to the extent he liked in NA, Toastmasters or
any other activity.  In saying this, I am mindful that Mr. Jones had
not worked on any regular basis for approximately seven years after leaving his
position at Envirotest and joining Royal LePage.

[173]     I do not
propose to reiterate my summation of the nature and progression of Mr. Jones’s
symptoms stemming from the two accidents.  Suffice it to say there is no
question that he suffered a significant aggravation to his low back as a result
of the 2008 Accident that rendered those symptoms more persistent and disabling
than they had been before and, for the first time, imposed functional limitations
on him.  The 2008 Accident also caused him headaches and symptoms to the other
aspects of his spine, the area between his shoulder blades and down his lower
right side.  The intensity and frequency of his symptoms gradually improved
until the 2011 Accident, which served to worsen and aggravate most of them.  His
injuries have caused years of varying degrees of pain which exacerbated Mr.
Jones’s existing sleep difficulties and weakened his capacity to cope with
ongoing marital and financial stress and, in combination with those situational
stressors, served to substantially contribute to a further deterioration of his
mood and formerly positive disposition.

[174]     The
evidence does not establish a relationship between Mr. Jones’s previous
low back pain incidents to the underlying degenerative changes in his lumbar
spine noted by Drs. Birch and Herschler, or that his degenerative
condition presented a measurable risk that his pre-existing low back problems
would have detrimentally affected him in the future regardless of the
accidents.

[175]     By Mr. Jones’s
own credible account, supported by his lay witnesses, he went from being
gregarious and upbeat to an irritable, intolerant man who constantly complained
of his pain and withdrew from friends.  His injuries interfered with his
ability to walk both for work and for recreation, took a toll on his
friendships, and curtailed his attendance at NA meetings and related community
volunteer work.  On the positive side, he was able to advance the executive ladder
of Toastmasters by making slight adjustments to his duties and delegating
certain tasks and to eventually join another Toastmasters club.  He has also
been able to resume walking “a little bit” every day.

[176]     The accidents
have negatively affected the quality and enjoyment of Mr. Jones’s life. 
Although his symptoms have improved over time, they had not resolved at the
time of trial.  Dr. le Nobel’s prognosis for Mr. Jones was
guarded; however, it was not bleak.  He did not forecast that Mr. Jones’s
injuries would result in permanent symptoms or limitations.  Rather, his
thinking was that Mr. Jones would continue to suffer from ongoing symptoms
for a number of years to come but, fortunately, not indefinitely.

[177]     Based on Dr. le Nobel’s
opinion and the evidence, I conclude that for the next several years Mr. Jones
will continue to suffer pain and, with it, worsened insomnia and fatigue, a
downcast mood and flattened demeanour, although all such symptoms at progressively
diminishing intensities.  Enduring pain, even when it is intermittent and its
intensity fluctuates between mild and moderate, puts a negative spin on
everyday living and detracts from the pleasures of life.

[178]     I have
reviewed all of the cases placed before me by counsel and do not propose to
review them in any detail as they provide general guidelines only.  In
assessing the quantum of Mr. Jones’s non-pecuniary damages, I must
keep in mind that his pre-existing history of low back difficulties and
problems with sleep and depression were part of who he was before the 2008
Accident.  Having considered the totality of the evidence and the application
of the governing principles, it is my opinion that a fair and reasonable award
for his non-pecuniary damages is $65,000.

●      Loss
of Earning Capacity

[179]     The legal
framework that informs an award for loss of earning capacity was helpfully
summarized by Dardi J. in Midgley at paras. 236-240:

The recent jurisprudence of the Court of Appeal has affirmed
that the plaintiff must demonstrate both an impairment to his or her earning
capacity and that there is a real and substantial possibility that the
diminishment in earning capacity will result in a pecuniary loss. If the
plaintiff discharges that requirement, he or she may prove the quantification
of that loss of earning capacity either on an earnings approach or a “capital
asset” approach: Perren v. Lalari, 2010 BCCA 140 at para. 32.
Regardless of the approach, the court must endeavour to quantify the financial
harm accruing to the plaintiff over the course of his or her working career: Pett
v. Pett, 2009 BCCA 232 at para. 19; X. v. Y at para. 183.

 As
enumerated by the court in Falati v. Smith, 2010 BCSC 465 at para. 41,
aff’d 2011 BCCA 45, the principles which inform the assessment of loss of
earning capacity include the following:

(i) The standard of proof in relation to hypothetical or
future events is simple probability, not the balance of probabilities: Reilly
v. Lynn, 2003 BCCA 49 at para. 101. Hypothetical events are to be
given weight according to their relative likelihood: Athey at para. 27.

(ii) The court must make allowances for the possibility that
the assumptions upon which an award is based may prove to be wrong: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49
B.C.L.R. (2d) 99 (C.A.). Evidence which supports a contingency must show a “realistic
as opposed to a speculative possibility”: Graham v. Rourke (1990), 75
O.R. (2d) 622 at 636 (C.A.).

(iii) The court must assess damages for loss of earning
capacity, rather than calculating those damages with mathematical precision: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43.
The assessment is based on the evidence, taking into account all positive and
negative contingencies. The overall fairness and reasonableness of the award
must be considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11.

 Although
a claim for “past loss of income” is often characterized as a separate head of
damages, it is properly characterized as a component of loss of earning
capacity: Falati at para. 39. It is compensation for the impairment
to the plaintiff’s past earning capacity that was occasioned by his or her
injuries: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30; Bradley
v. Bath, 2010 BCCA 10 at paras. 31-32; X. v. Y at para. 185.

 While
the burden of proof relating to actual past events is a balance of
probabilities, a past hypothetical event will be considered as long as it was a
real and substantial possibility and not mere speculation: Athey at para. 27.

This court in Falati at para. 40 summarized the
pertinent legal principles governing the assessment of post-accident, pre-trial
loss of earning capacity and concluded that:

[40] … the determination of a plaintiff’s
prospective post-accident, pre-trial losses can involve considering many of the
same contingencies as govern the assessment of a loss of future earning
capacity. … As stated by Rowles J.A. in Smith v. Knudsen, 2004 BCCA
613, at para. 29,

“What would have happened in the past but for the
injury is no more ‘knowable’ than what will happen in the future and therefore
it is appropriate to assess the likelihood of hypothetical and future events
rather than applying the balance of probabilities test that is applied with
respect to past actual events.”

[180]     The law
has long recognized that unknown contingencies and uncertain factors make it
impossible to calculate lost opportunities and a loss of earning capacity with
any precision: Erickson at para. 271.  It is because the occurrence
of hypothetical and future events is unknown that allowances must be made for
relevant and realistic positive and negative contingencies.

●      Past
Loss

[181]     The defendants
say that, even if the accidents caused him discomfort and diminished his energy
and stamina, his earning capacity was not adversely impacted.  Indeed, pointing
to the fact that Mr. Jones moved up the executive of Toastmasters, attended
Toastmasters meetings and annual conferences and joined a second club, produced
the odd business plan (approximately three to four annually), taught
presentation skills to realtors and started to teach public speaking skills at
a secondary school, in addition to working as a realtor, they insist that he
actually became more active after the 2008 Accident than he was before.  Tied to
this is the defence theory that the reason for the decline in Mr. Jones’s
commissions after the 2008 Accident is that he chose to shift his effort away
from his career in order to fulfill his preferred duties with Toastmasters. 
Central to their assertion is the premise that Mr. Jones’s participation
in Toastmasters after the 2008 Accident was tantamount to holding a full-time
job.

[182]     The entire
line of argument hinges on the contents of a farewell address that Mr. Jones
composed in the summer of 2011 as the departing District Governor of
Toastmasters.  The defendants parse out his remarks to the effect that the
executive offices of District Governor, Lieutenant-Governor of Marketing and
Lieutenant-Governor of Education (positions held by Mr. Jones after the
2008 Accident) are “nearly full-time jobs”.

[183]     Mr. Jones
denied spending anywhere close to full-time hours discharging his Toastmasters responsibilities,
and was adamant that he volunteered only about ten hours per week to that
endeavour.  He quite candidly, and I found persuasively, explained that
his farewell address deliberately overstated the importance of the leadership
roles in the organization in order to “inspire the troops”.  There was no
convincing evidence that after the 2008 Accident, Mr. Jones decided to
shift gears and concentrate most of his time and energy to Toastmasters
activities at the expense of his career.  His evidence about the nature of his
Toastmasters duties and the manner in which he adjusted them after the 2008
Accident, as well as his testimony about the time that he devoted in carrying
them out was credible.  I find that he engaged in hyperbole in his address when
he described the executive positions as akin to nearly full-time jobs.  My findings
effectively nullify this branch of the defendants’ argument and the
ill-conceived submissions they advanced in this context concerning Mr. Jones’s
failure to mitigate.

[184]     The testimony
of Mr. Simmons, Mr. Baijius and Ms. Legatt was forcefully to the
effect that after the 2008 Accident, Mr. Jones became an irritable,
isolated and sometimes offensive person who was difficult to be around and
interact with.  After and because of the effects of the 2008 Accident, his
energy and industriousness was diminished and his preoccupation with pain and
downward spiraling mood reduced his productivity and seeped into all facets of
his life, adversely impacting his interactions with friends, colleagues and
clients alike.  Although able to continue as a realtor, I find that Mr. Jones’s
injuries have impaired his ability to pursue leads, maintain and develop
clients and close sales transactions.

[185]     I am
satisfied that, had the accidents not occurred, there is a real and substantial
possibility Mr. Jones would have continued to gain experience in the real
estate field, enlarge his contacts and expand his book of business at a greater
rate which, in turn, would have translated into more commission earnings than
he has been able to generate.  There is no question that the injuries induced
by the accidents have compromised Mr. Jones’s earning capacity to trial.  Assessing
the real and substantial possibilities of what would have happened in the past
but for those injuries, I am satisfied that his diminished capacity would
have resulted in a pecuniary loss.  I turn next to the quantification of
that loss.

●      The
Economic Experts

(i)             
Darren Benning

[186]     Darren
Benning of PETA Consultants Ltd. provided a report dated March 28, 2012,
on Mr. Jones’s behalf, assessing Mr. Jones’s past and future loss of
income.

[187]     Mr. Benning’s
methodology relative to Mr. Jones’s past loss was to estimate his
commissions, had the 2008 Accident not occurred, on two alternative bases:

(i)     commensurate
with his earnings in 2007 (the “Earnings Approach”); and

(ii)    commensurate
with the earnings of the sixth highest ranking realtor working in the same
Royal LePage office as Mr. Jones (the “Ranking Approach”).

The Earnings Approach

[188]     Mr. Benning
considered it preferable to not include the data about Mr. Jones’s 2006 commissions
in the Earnings Approach because that was Mr. Jones’s first year as a
realtor and he was just starting to develop his business.  The legitimacy of
excluding the 2006 information was indirectly supported by the testimony of Mr. Simmons,
and was not disputed by the expert called by the defendants, Kevin Turnbull.

[189]     Mr. Benning
also removed from his analysis commissions earned in the period of time between
January 1, 2008 and the 2008 Accident, for two reasons.  First, he
believed that because an agent may have more or less sales at different times
of the year, he would obtain a more accurate sense of an agent’s annual
earnings by using an entire calendar year.  Second, to account for the fact that
there had been a decrease in sales generally in 2008 due to the downturn in the
real estate market, as confirmed by Mr. Jones and Mr. Simmons.

[190]     By
comparing Mr. Jones’s gross commissions in 2007 ($108,058) with the
average commissions earned by realtors that year in Greater Vancouver and using
the standard rate of commissions as the benchmark, Mr. Benning determined
that Mr. Jones’s 2007 revenues were equivalent to 134% of the average
commissions earned.  He next calculated Mr. Jones’s foregone commissions
for 2008 based on the assumption that they would have been equivalent to 134%
of the average commissions earned by agents in the Greater Vancouver area in
that period of time.  He ran the same analysis for 2009 and 2010; for 2011 and
2012, he assumed ongoing losses equivalent to those in 2010.  In calculating
the commissions after the 2008 Accident, he factored in changes in the real
estate market.

[191]     In
addressing the issue of Mr. Jones’s expenses for those years, Mr. Benning
divided them into two categories – variable and fixed.  Given that Mr. Jones
continued to work as an agent after both accidents, the experts agreed the savings
in expenses only applied to variable expenses which were equivalent to 14.79%
of Mr. Jones’s gross revenues.

[192]     Utilizing
the Earnings Approach, Mr. Benning assessed Mr. Jones’s cumulative net
past income loss as $120,865.

The Ranking Approach

[193]     In Mr. Benning’s
second scenario, he assumed that Mr. Jones would have continued to earn
commissions in 2008 and onwards on par with those achieved by the realtor in
his office who had standing as the sixth highest producer in each of those
years.  Mr. Benning provided a table setting out the commissions of the
sixth-ranked salespersons in Mr. Jones’s office from 2008 to 2010 and
compared them to Mr. Jones’s actual commissions.  The difference between
the two amounts was said to comprise Mr. Jones’s lost net commissions. 
Using this formulation, Mr. Benning estimated Mr. Jones’s net past
income loss at $209,623.

[194]     Mr. Jones
submits that the evidence showing him to be a rising star at Royal LePage with
a bright future in the industry before the 2008 Accident supports the inference
that he had the potential to maintain his standing as the sixth highest ranked
realtor in the office for years to come.  Accordingly, he endorses the Ranking
Approach utilized by Mr. Benning.

(ii)           
Kevin Turnbull

[195]     Kevin
Turnbull provided an economic report for the defendants dated April 17,
2012.  Although he agreed with many of the assumptions relied upon by Mr. Benning,
such as applying a tax rate of 20% on lost commissions after expenses and an
amount equivalent to 14.79% to reflect savings for variable expenses, he expressed
several concerns about the core features of Mr. Benning’s methodology.  Specifically,
he took major exception with the validity of relying exclusively on Mr. Jones’s
2007 earnings in projecting the gross commissions absent the accidents, and
offered an alternative formula to quantify the past loss.

[196]     Mr. Turnbull
analyzed Mr. Jones’s sales performance in 2007 and found that he had successfully
completed many more transactions in the first part of that year than in the
last part.  He also noted there were considerably less sales achieved in the
seven months and eight days immediately before the 2008 Accident than was the
case in the comparative period in 2007 or, for that matter, any other time
frame.  That led Mr. Turnbull to wonder whether Mr. Jones’s greater
level of activity in the early part of 2007 might indicate that the time period
was unrepresentative of his performance in the sense that he may have been
inexplicably lucky during that timeframe.  However, he also allowed that Mr. Jones’s
superior performance during that phase of 2007 may have been due to the fact
that the real estate market was “hot” at that time and subsequently cooled off
later in 2007 and into 2008.  Even making the allowance for the downturn of the
market, the implication of Mr. Turnbull’s interpretation of the data is
that Mr. Jones’s performance in the 12 months immediately preceding the
2008 Accident was not on par with his performance in the early part of 2007.

[197]     In simple
terms, Mr. Turnbull’s methodology was to examine Mr. Jones’s actual
sales results rather than his earnings as a baseline for projecting his lost
sales prior to trial.  Drawing on statistics from the Real Estate Board of
Greater Vancouver, he estimated the average units sold per month, which he then
relied on to produce a market unit sales index.  That index was intended to
show the relative market activity in terms of average monthly sales compared to
the pre-2008 Accident average.  By comparing that index to his tabulation of Mr. Jones’s
unit sales index, Mr. Turnbull calculated Mr. Jones’s expected unit
sales.

[198]     Mr. Turnbull
presented projections of Mr. Jones’s unit sales, absent the accidents,
using two time periods as a baseline: January 1, 2007 to August 8,
2008, and August 9, 2007 to August 8, 2008.  Applying the former
baseline, he determined that Mr. Jones’s actual unit sales for the remainder
of 2008 after the 2008 Accident actually exceeded the projected sales for that
time period.  For the balance of the period through to the date of trial,
however, he calculated a loss of sales of 33 units.  Applying the same
methodology, but using the 12-month period immediately preceding the 2008
Accident, resulted in a loss of only six sales to the date of trial.

[199]     Relying on
Mr. Jones’s sales history from January 31, 2006 to October 12,
2011, Mr. Turnbull then calculated Mr. Jones’s average commission
earned as $5,862 per unit.  Deducting an amount equal to 14.79% to reflect
saved variable expenses and 20% for income tax, he arrived at a net after tax
loss per transaction of $4,000 (rounded up from $3,996).  Multiplying that figure
by the 33 lost transactions resulted in a net past loss estimation of $132,000. 
Applying the same formula using the 12 month period immediately before the
2008 Accident as the baseline resulted in a significantly smaller net loss of
$24,000.

(iii)         
Discussion

[200]     Formulation
of an appropriate methodology to assess Mr. Jones’s past and future loss
that sufficiently contemplates the multiple variables at play was challenging,
even for the experts.  Their divergent approaches have commendable attributes
as well as shortcomings.  For example, neither model made allowance for the fact
that Mr. Jones had the authority to decrease his commissions to an amount
less than the standard rate (including zero), and had done so in the past.

[201]     The
Ranking Approach devised by Mr. Benning was tied to a performance
achievement that Mr. Jones had attained only once and reflected his best
year as a realtor.  The proposition that, had the 2008 Accident not occurred, Mr. Jones
would have maintained his stature as the sixth highest producer in his office,
year in and year out, is highly speculative.

[202]     Apart from
gross commission numbers, Mr. Benning did not have adequate information about
the agents who were ranked as the sixth salespersons in any given year apart
from 2007 when Mr. Jones occupied that slot.  He, therefore, had no means
of comparing who moved in and out of that placement or whether any one realtor
was able to retain that standing for more than one year at a time.  Mr. Jones
was likewise not able to shed much light on the subject beyond agreeing that
the top producers were not the same year-to-year.

[203]     Mr. Benning
likewise acknowledged that the performance of individual salespersons can
fluctuate in any given year, and from year to year.  That simple but obvious
truth undermines the Ranking Approach.  When considered in light of the fact
that Mr. Jones had a relatively brief sales history as a realtor prior to
the 2008 Accident, its validity is even more dubious.  I do not endorse
it.

[204]     Of the two
methodologies, I have greater confidence in the soundness of Mr. Benning’s
Earnings Approach.  However, it too is constructed on problematic underpinnings. 
The main one, and I consider it to be a serious deficiency, is that Mr. Benning
projected Mr. Jones’s loss before trial with reference solely to the
benchmark of his performance in 2007, which was his best year.  It, therefore,
necessarily assumes that Mr. Jones would have continued to attain those
results (subject to fluctuations in the market) had the 2008 Accident not
occurred.  In so doing, it effectively overlooks the more than seven months of
2008 predating the 2008 Accident where, according to Mr. Turnbull,  Mr. Jones’s
performance was inferior even where market place considerations are accounted for. 
To this, I would add that Mr. Jones’s earnings in that year also
represented his highest earnings not only from real estate, but from any type
of work for at least nine years preceding the 2008 Accident and perhaps ever
(leaving aside his receipt of the sizable stock options from Envirotest).

[205]     It is also
worth mentioning that Mr. Turnbull suggested that Mr. Benning had
done more than merely ignore that factor in that he had estimated the 2008 loss
on the footing that the superior 2007 results (after adjusting for market
changes) would have been achieved across the entire 2008 year.  In Mr. Turnbull’s
view, that approach not only glossed over the poor results actually achieved by
Mr. Jones in the early part of 2008.  It also appeared to inadvertently capture
the effects of those inferior results in the overall loss estimate.  The skewed
effect of using this narrow of a baseline is compounded by the fact that Mr. Benning
does not appear to have made any allowance for fees paid by the average agent
to the brokerage firm out of commissions, and yet the figures he used for Mr. Jones
were net of the fees paid to Royal LePage.

[206]     In my
view, Mr. Turnbull’s scenario that encompasses the entire time frame of January 1,
2007 until the date of the 2008 Accident as a baseline provides the most
reasonable starting point of assessment.  That said, his model is not
flawless.  For example, in tabulating the average commission of an average
realtor, Mr. Turnbull took into account the years 2006 and 2007 only, even
though he had knowledge that real estate prices, and potentially the amount of
commissions, would have increased between 2006 and 2011.  At trial, he conceded
that it would have been preferable to calculate the average commission per sale
using the period from August 9, 2008 to October 12, 2011 as it
offered a better indicator of the market.  That adjustment resulted in a net
average commission for Mr. Jones of $4,635 per unit rather than $4,000, and
increased the estimated loss accordingly.

[207]     I do not
accept that Mr. Jones merely had a “lucky” year in 2007 in the sense that
it was an aberration.  But even he agreed that one’s performance in sales is
seldom constant.  While he was certainly not insulated from a market decline,
according to Mr. Turnbull’s analysis, which I accept, he not only
slipped from the sixth spot but actually underperformed the market average in
2008 before the 2008 Accident.  In my view, expanding the baseline to encompass
the longer duration beginning on January 1, 2007 as Mr. Turnbull has
done, does not fully address that point.

[208]     Although information
about Mr. Jones’s historical earnings and sales transactions is useful in evaluating
the substantial possibilities of what could have happened in the absence of the
accidents, it is not determinative of the measure of his past or future loss. 
Contingencies both positive and negative inform the analysis.

[209]     Mr. Jones
had enjoyed a successful career with Envirotest for about six years.  Details
of his prior employment were not developed in the evidence.  Although he is an
educated man with management experience, his work ethic, at least from about
1998 to 2006, and employment achievements have been spotty and are not
impressive.  After he left Envirotest, Mr. Jones irresponsibly frittered
away an enormous sum of money, evidently triggered by his then unchecked
addiction to gambling, and thereafter spent a number of years in his own small
business enterprise that had negligible financial success.  He also
demonstrated an ineptness in applying fiscal management to his personal
financial situation.

[210]     On the
other hand, Mr. Jones has been able to overcome his substance abuse
addictions and has demonstrated a commendable level of sheer determination in pursuing
a fresh career in the face of near financial ruin.  He worked hard at honing
his presentation skills and enhancing his networking opportunities and proved
to be a motivated and high achieving salesperson in just two years.

[211]     The
unpredictable nature of the inherently volatile real estate market,
acknowledged fluctuations in the performance of individual sales agents, and
Mr. Jones’s relatively brief time spent as a realtor before the 2008
Accident, militate against assessing his past loss with the degree of precision
reflected in the mathematical formulae utilized by the experts.

[212]     Allowing
for non-speculative contingencies and aiming for overall fairness, I quantify
Mr. Jones’s net loss to trial as $70,000.

●      Future
Loss

[213]     My task is
to compare the likely future of Mr. Jones’s working life if the accidents
had not happened to his likely future working life afterwards: Gregory v.
I.C.B.C., 2011 BCCA 144 at para. 32.

[214]     The
defendants submit that Mr. Jones has failed to show, on a substantial
possibility basis, a future event leading to an income loss and that,
consequently, he is not entitled to an award under this head.

[215]     Many of
the considerations material to the assessment of past loss of earning capacity
have application to his future loss claim.  For the reasons already given in addressing
Mr. Jones’s entitlement under other heads of damages, the evidence amply
establishes that the accidents are responsible for an impairment of Mr. Jones’s
future earning capacity spanning the next several years, with a gradual
lessening of the degree of his functional impairment over that timeline.  He has
also proven a real and substantial possibility that his diminished capacity
caused by the accidents will generate a pecuniary loss into the future.  As Mr.
Jones has established a real and substantial possibility of a future event
leading to an actual income loss, there is a proper foundation to take the next
step and quantify his loss: Morgan v. Galbraith, 2013 BCCA 305.

[216]     Using January 1,
2007 to August 8, 2008 as the baseline, Mr. Turnbull estimated that Mr. Jones
would lose nine transactions per year.  Applying an average commission per
transaction of $6,797 (which he agreed at trial was the proper figure) produced
a net value per sale of approximately $5,792.  That sum, multiplied by nine
lost transactions, amounted to an estimated annual future loss of $52,128.  The
future income loss multipliers to ages 65, 70 and 75 respectively were provided
by Mr. Benning in his report.

[217]     As between
the proposed models used to assess Mr. Jones’s future loss, I prefer
Mr. Turnbull’s approach; although it too has problematic elements.  For
example, his calculations presume a static level of performance on the part of
Mr. Jones and a static degree of impaired functioning going forward, neither of
which are supported by the evidence.  The expected fluctuations in Mr. Jones’s
performance unconnected to the accidents, together with the vagaries of the
real estate market, make a predominantly mathematical assessment of
Mr. Jones’s loss inappropriate in this case.  While I accept
Mr. Jones’s intention is to continue working in real estate into the
foreseeable future and that he currently has no plans to retire given his less
than desirable financial situation, I am also mindful of the lack of any evidence
that he has ever been employed continuously for more than six years.

[218]     To my
mind, it is not appropriate to
engage the “earnings approach” to assess Mr. Jones’s damages. It is
instead preferable to quantify his loss by taking into account the factors that
inform the capital asset approach laid out in Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353 (S.C.), mindful of the fact that his diminished capacity is
not permanent and will continue to improve over time and eventually be resolved.
That assessment involves considering factors such as whether he: (i) has
been rendered less capable overall of earning income from all types of
employment; (ii) is less marketable or attractive as a potential employee;
(iii) has lost the ability to take advantage of all job opportunities that
might otherwise have been open; and (iv) is less valuable to himself as a
person capable of earning income in a competitive labour market.  The evidence
establishes that at least three, and probably all four, of these factors have
application to Mr. Jones.

[219]     As
mentioned, the evidence does not demonstrate that Mr. Jones’s pre-existing
low back difficulties or depression impaired his capacity to fulfill his duties
as a realtor, or that there is a measurable risk that either or both of those
conditions would have caused him a loss in the future, absent the accidents.

[220]     Bearing in
mind the applicable legal principles, including the Brown criteria, in
light of the evidence, I conclude that in all the circumstances the sum of
$110,000 is the present value of a fair and reasonable measure of Mr. Jones’s
loss of future earning capacity.

●      Special
Damages

[221]     Mr. Jones
is permitted recovery of the out-of-pocket expenses he reasonably incurred as a
result of his injuries.  His entitlement is derived from the fundamental
principle that an injured person is to be restored to the position he would
have been in had the negligence not happened: Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99
(C.A.) at 78.

[222]     Mr. Jones
seeks an award of $20,820.20 in special damages to cover expenses incurred for
massage therapy, acupuncture, chiropractic treatment and IMS.  He provided
supporting invoices for the majority of those items.  From the claimed sum, I
have deducted the amount of $1,000 to reflect the fact that Mr. Jones
would have had a small number of chiropractic treatments during this period
even if the accidents had not taken place.

[223]     Accordingly,
Mr. Jones entitled to special damages in the amount of $19,820.20.

●      Cost
of Future Care

[224]     The
approach to be taken in assessing future care costs was settled by the Supreme
Court of Canada in Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9,
at paras. 21-22:

Damages for cost of future care are a matter of prediction.
No one knows the future. Yet the rule that damages must be assessed once and
for all at the time of trial (subject to modification on appeal) requires
courts to peer into the future and fix the damages for future care as best they
can. In doing so, courts rely on the evidence as to what care is likely to be
in the injured person’s best interest. Then they calculate the present cost of
providing that care and may make an adjustment for the contingency that the
future may differ from what the evidence at trial indicates.

The resulting award may be said
to reflect the reasonable or normal expectations of what the injured person
will require. Jane Stapleton, “The Normal Expectancies Measure in Tort
Damages” (1997), 113 L.Q.R. 257, thus suggests, at pp. 257-58, that the tort
measure of compensatory damages may be described as the “‘normal expectancies’
measure”, a term which “more clearly describes the aim of awards of
compensatory damages in tort: namely, to re-position the plaintiff to the destination
he would normally have reached … had it not been for the tort”. The measure
is objective, based on the evidence. This method produces a result fair to both
the claimant and the defendant. The claimant receives damages for future
losses, as best they can be ascertained. The defendant is required to
compensate for those losses. To award less than what may reasonably be expected
to be required is to give the plaintiff too little and unfairly advantage the
defendant. To award more is to give the plaintiff a windfall and require the
defendant to pay more than is fair.

[225]     The
purpose of damages for the cost of future care is to compensate for a financial
loss reasonably incurred to sustain or promote the mental and/or physical
health of an injured plaintiff: Gignac v. ICBC, 2012 BCCA 351 at
para. 30.  The services and items must be justified as reasonable in the
sense of being medically required or justified, and in the sense that the
plaintiff will be likely to incur them based on the evidence: Milina; Izony
v. Weidlich, 2006 BCSC 1315; Kuskis v. Tin, 2008 BCSC 862.

[226]     Recommendations
made by a medical doctor or made by various other health care professionals are
relevant in determining whether an item or service is medically justified: Gregory
at para. 38. An evidentiary link between the medical assessments and the
recommended treatment is essential: Gregory at para. 39; Gignac
at paras. 31-32. General contingencies and those specific to the plaintiff are
to be taken into account where appropriate: Gignac at para. 52.

[227]     Mr. Jones
seeks an award in the amount of $7,500 to cover the cost of his future care. 
The breakdown is $2,000 for the pulsed electromagnetic field therapy
recommended by Dr. Herschler, with the balance allocated to the recommendations
made by Dr. le Nobel.  The latter include access to an exercise
facility, guidance from a kinesiologist, massage therapy, a TENS machine, a
heated vehicle seat and the use of back support for prolonged sitting.

[228]     I am
satisfied that the therapy recommended by Dr. Herschler would be
beneficial to Mr. Jones and is medically justified within the meaning
contemplated by the authorities and would likely be incurred by him.  I am
similarly convinced that massage therapy to alleviate his symptoms is an
appropriate and beneficial therapy that he would use.  Based on the evidence of
his special damages, I award the sum of $ 1,600 in respect of that treatment
expense.

[229]     There was
virtually no cogent evidence that Mr. Jones would avail himself of any of
the other recommendations made by Dr. le Nobel or the cost of them. 
Accordingly, there is no proper basis for any additional award under this head.

[230]     In sum, Mr. Jones
is entitled to an award of $3,600 for the cost of his future care.

●      Mitigation

[231]     Mr. Jones
has a positive duty to act reasonably in minimizing his losses caused by the
Accidents: Janiak v. Ippolito, [1985] 1 S.C.R. 146; Chiu (Guardian ad
litem of) v. Chiu, 2002 BCCA 618; Shapiro v. Dailey, 2012 BCCA 128.

[232]     The
defendants say that Mr. Jones has not mitigated his loss by failing to follow
a basic treatment option in the form of an active exercise program recommended
by Dr. le Nobel.

[233]    
In Antoniali v. Massey, 2008 BCSC 1085 at para. 31, Preston
J. discussed the concept of mitigation in the context of an alleged failure by
the plaintiff to implement a particular conditioning program:

  In
order to conclude that Ms. Antoniali’s damages should be reduced by application
of the principle that a plaintiff has a positive duty to mitigate his or her
injuries, I would have to find that the defendant has established:

1.   that a program of stretching and
conditioning under the guidance of a personal trainer would have reduced or
eliminated the effect of the injuries;

2.   that the reasonable plaintiff in Ms.
Antoniali’s circumstances would have followed such a program;

3.   that Ms. Antoniali unreasonably
failed to follow such a program and;

4.   the extent to which Ms. Antoniali’s
damages would have been reduced if she had followed such a program.

[234]     While it
is true that Mr. Jones had not taken up an active exercise program at the
time of trial, on a medical referral he had enrolled in a multi-disciplinary
program at a pain clinic and had been awaiting its start date (set to begin
after completion of the evidence portion of the trial) for a considerable
period of time.  Moreover, Dr. le Nobel clarified that it may have been
beneficial to Mr. Jones to have undertaken such a program earlier, but it also
had the potential of making him worse.

[235]     In my
view, the defendants have not discharged their onus to establish, on a balance
of probabilities, that Mr. Jones failed to act reasonably by not
participating in an active exercise program prior to trial in addition to his
enrollment at the pain clinic, or that his damages would have been reduced had he
followed such a program.

COSTS

[236]    
If the parties are unable to agree as to costs, they may file written
submissions implementing a time table of their choosing that incorporates a
final deadline of October 18, 2013.

“Ballance J.”