IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130807

Docket: M104222

Registry:
Vancouver

Between:

Michael Clemas

Plaintiff

And

Rose Gabrlik and Ronald
Gabrlik

Defendants

Before:
The Honourable Mr. Justice Skolrood

Reasons for Judgment

Introduction

[1]            
This is a claim for damages for personal injuries suffered as a result
of a motor vehicle accident that occurred on September 16, 2008 at the
intersection of 176^th Street and 32^nd Avenue in Surrey,
British Columbia (the “accident”). Liability is not in issue.

The Accident

[2]            
The accident occurred at approximately 4:00 p.m. The plaintiff, Michael
Clemas, was heading north on 176^th Street and had stopped at the
traffic light at 32^nd Avenue. He was driving a 1995 Pontiac
Transporter minivan. His vehicle was the first in line at the traffic light and
he estimated that he was stopped for approximately 15 seconds when his vehicle
was struck from behind by a vehicle driven by the defendant Rose Gabrlik and
owned by the defendant Ronald Gabrlik. Mr. Clemas testified that the force of
the collision compelled his vehicle six to eight feet into the intersection
where it came to rest. As will be discussed below, the defendant driver
testified that the force of the impact was, in fact, minimal.

[3]            
No police or ambulance attended the accident scene. No independent
witnesses were called to give evidence about the accident.

[4]            
Mr. Clemas testified that he contacted the Insurance Corporation of
British Columbia (“ICBC”) following the accident and that ICBC paid him $1,500.00
in respect to the damage sustained to his vehicle. In cross-examination, Mr.
Clemas agreed that in fact the damage to his vehicle, as identified by ICBC,
totalled just over $1,000.00 ($1,046.93). Photos of the rear of Mr. Clemas’
vehicle tendered in evidence did not reveal any significant damage to the
vehicle. Indeed it was difficult to discern any damage in the photos.

The Parties’ Positions

[5]            
It is the plaintiff’s position that as a result of the accident, he has
suffered a significant ongoing injury to his lower back that has caused him,
and continues to cause him, damages which he quantifies as follows:

[6]            
The defendants concede that the plaintiff was injured in the accident,
however they take issue with both the severity and duration of his injuries. The
defendants submit that the following damages are appropriate in this case:

The Plaintiff’s Evidence

[7]            
Mr. Clemas was 44 years old at the time of the accident and 49 years old
at the time of trial. At the time of the accident, he was a single father with
shared custody of his two children with his former common law spouse. Mr.
Clemas has since married and currently resides with his spouse and stepson.

[8]            
Mr. Clemas is a plumber by trade. Following his graduation from high
school in 1982, he commenced employment with R.C. Installations, a plumbing business
operated by his father, and in 1985 or 1986, he obtained his journeyman
plumber’s certificate. In 1988, he left R.C. Installations and moved to
Montreal with the hope of making the Canadian Olympic team in the sport of judo.
As a result of an injury to his wrist suffered in training, Mr. Clemas returned
to British Columbia in 1990 and resumed his employment with R.C. Installations.

[9]            
In 1990, R.C. Installations had three employees: Mr. Clemas, his father
and his brother. Mr. Clemas’ mother did the books for the business. At some
point after his return from Montreal, Mr. Clemas’ brother left the business and
it continued with Mr. Clemas and his father. In the early 2000s, Mr. Clemas’
father began to work less for health reasons and he effectively retired from
the business in 2006. From 2007 to the date of the accident, Mr. Clemas
operated R.C. Installations on his own, albeit with ongoing bookkeeping
assistance from his mother. He testified that his intention was to continue in
the business until retirement and that hopefully at some point his son would
join him as he had his own father.

[10]        
Mr. Clemas testified that as a result of the force of the accident, his
right shin struck the dash board. Following the accident, he experienced pain
in the back of his head, neck, left shoulder and lower back. The headaches,
neck pain and shoulder pain resolved within approximately six weeks of the
accident, but the back pain has persisted and is the primary basis for his
claim for damages in this action. The severity and duration of his alleged back
problems, and their impact on his life and his ability to earn income, are the
central issues in the case.

[11]        
Following the accident, Mr. Clemas was away from work for approximately
two weeks. During that period, his brother assisted with some service calls and
he also enlisted the help of his nephew. Approximately two to three weeks after
the accident, his father returned to the business to help as well. Mr. Clemas
attempted to ease back into work, starting with two hours per day and then
increased to four hours per day. However, when he tried to work six hours per
day he says that he found it too painful and he was unable to continue. Mr.
Clemas never returned to work full time at R.C. Installations.

[12]        
Mr. Clemas testified that in or about November or December, 2008 he had
a falling out with his father over R.C. Installations. According to Mr. Clemas,
his father did not appreciate the pain he was in and did not understand why he
was not able to work more. From Mr. Clemas’ perspective, his father was not
doing enough to maintain the business while Mr. Clemas was unable to work. For
example, Mr. Clemas thought that his father was favouring his historical
customers and was not providing adequate service to new customers that Mr.
Clemas had developed.

[13]        
According to Mr. Clemas, the result of this dispute was initially a
threat by Mr. Clemas’ father to sell the business, which Mr. Clemas
supported on the expectation that he would receive money from the sale. Instead,
however, his father gave Mr. Clemas what he described as a “severance payment”
comprised of four cheques for $1,500.00 spread over a few months.

[14]        
Following his departure from R.C. Installations, Mr. Clemas testified
that he applied for in excess of 30 plumbing jobs. He was eventually hired by E
& P Construction which was doing plumbing installation work in a new
townhouse development. Mr. Clemas testified that while he was hired as a
plumber, he essentially functioned as a foreman because he was the senior
plumber on the site and had a number of apprentices under him. The foreman
duties involved answering to the site supervisor and solving problems as they
arose. He also did plumbing work on the site with the assistance of the
apprentices. He agreed that he was able to fulfill the physical requirement of
the plumbing work.

[15]        
Mr. Clemas’ employment with E & P Construction was terminated just
shy of three months after it commenced following a confrontation with another
employee. Mr. Clemas thought his termination was unfair but there was little he
could do to challenge it.

[16]        
Mr. Clemas was cross-examined at some length on his description,
provided to various medical and other professionals, of his position at E &
P Construction as a “foreman.”  It was put to him that he used that term to
disguise the fact that he was doing, and was able to do, plumbing work. Mr.
Clemas testified that he described himself as a foreman because that was
essentially the role that he performed, even though he was hired as a plumber. I
accept his evidence that while he did perform plumbing work at the job site, as
the senior person on site he also performed a number of supervisory or
foreman-like functions. I do not believe that his description of the job as
being a foreman was intended to mislead. However, the fact that Mr. Clemas
was able to function in a job that involved both plumbing and supervisory
duties, and the fact that the extent of the physical requirements of that
position were not fully disclosed to the medical experts, is relevant to his
claim for loss of income which will be addressed below.

[17]        
Mr. Clemas applied for a number of other jobs and was ultimately hired
in June 2009 by PRL Pacific Reconstruction Ltd. (“PRL”), a company owned and
operated by a friend of his. According to Mr. Clemas, his friend was aware of
Mr. Clemas’ limitations and was prepared to accommodate them, primarily by
hiring an assistant to work with Mr. Clemas to do most of the heavy work. PRL
is engaged in the business of building envelope repair work. Mr. Clemas’
particular responsibility was to cut and install Hardie board which is a form
of siding.

[18]        
Mr. Clemas stayed employed at PRL for about three years but left in
July 2012. Mr. Clemas said that he quit because his assistant had been
laid off and he found the work too difficult. In May of 2012, Mr. Clemas had an
incident with his back when his back “locked up” and his regular treatment
regime was not working to relieve the pain. The ongoing pain, together with the
loss of his assistant, led him to quit PRL. He testified, as well that, the
owner of PRL wanted him to renew his Workers Compensation Board registration
and that he did not want to incur approximately $1,700 cost to do so.

[19]        
In October 2012, Mr. Clemas obtained employment at a Home Depot store in
White Rock in the plumbing department where he continued to be employed at the
time of trial. While he continues to experience pain and occasional spasms, he
is able to function at that job. Mr. Clemas testified that there is no heavy
lifting involved in the position.

[20]        
Summaries of Mr. Clemas’ taxable income were introduced into evidence
and revealed net income in the years preceding the accident as follows:

[21]        
Mr. Clemas testified that the increase in income in 2007 was due to the
fact that by that time he had taken over sole operation of R.C. Installations. His
income in 2008 reflects the fact that he did not return to work at R.C.
Installations in any meaningful way after the accident in September of that
year. Mr. Clemas estimated that he had approximately $50,000.00 in work lined
up for the balance of 2008 that he was unable to perform. No documents or other
corroborating evidence was adduced to substantiate that figure

[22]        
Mr. Clemas testified that he has not filed income tax returns for the
years after 2008 due to an outstanding income tax bill owing to the Canada
Revenue Service as well as a significant GST debt. However, he agreed in
cross-examination that his earnings from PRL were approximately $55,000 in 2010
and $60,000 in 2011.

[23]        
Mr. Clemas’ current position at Home Depot pays $14.00 per hour. He is
not classified as a full time employee but he said that he works full time
hours. He would like to ultimately be promoted into the position of designated
supervisor which pays $18.00 per hour.

[24]        
Mr. Clemas testified that the problems with his back have negatively
impacted his life in a number of respects. He and his wife currently live in a
house located next door to his parents that they rent from his parents. Mr.
Clemas testified that he relies on his father to do much of the home
maintenance. The situation has improved somewhat in recent times and he now is
able to cut the lawn approximately 60% of the time. He said that his wife does
the majority of the housework.

[25]        
Mr. Clemas testified that he is now limited in a number of recreational
pursuits that he used to enjoy. Mr. Clemas’ father owns a judo club and prior
to the accident, Mr. Clemas used to teach judo. As part of the teaching he
would demonstrate judo moves to students and would occasionally spar with
students. He has recently returned to teaching judo at the club but is no
longer able to demonstrate or spar. Rather, he teaches students through verbal
direction.

[26]        
Prior to the accident, Mr. Clemas was quite involved in paintball. In
the late 1990s he participated at a competitive level. Later, he played on a
more recreational basis, playing every week or two when the weather permitted. After
the accident, Mr. Clemas stopped playing paintball due to the physical
demands and he sold his paintball equipment.

[27]        
Prior to the accident, Mr. Clemas also played tennis with his son a
couple of times per week. He has not played tennis since the accident as he
believes the motion of hitting the tennis ball would cause problems with his
back. Mr. Clemas also used to play golf. He testified that he would go to the
driving range once or twice per week and would try to play once per week
depending on friends’ availability. Since the accident, he has gone to the
driving range a few times and has played one round of golf on a par 3 course
with his son.

[28]        
Also prior to the accident, Mr. Clemas and his wife enjoyed taking dance
lessons together. As he described it, this was an attempt to develop a hobby
that they could participate in together. Mr. Clemas said that they have not
resumed dance lessons since the accident, although his evidence was vague as to
why that is.

[29]        
Mr. Clemas also testified that he used to enjoy throwing a baseball or
football with his son but he does not do that anymore. He also has not gone to
a movie with his children since the accident for fear that he could not sit
still for the duration of the film.

[30]        
Mr. Clemas denied that he had any pre-existing injuries of any significance.
Specifically, he testified that while he had tweaked his back from time to time
while engaging in judo, he had no significant prior back issues. He had
orthoscopic surgery on one knee and separated both shoulders, again in relation
to his judo activities, but he does not consider this material to his current
complaints. He also experiences occasional problems with the wrist he injured
in judo.

[31]        
In cross-examination Mr. Clemas admitted that he was involved in four
subsequent motor vehicle accidents after the accident, all of which appear to
have been very minor. He denied that he was injured in any of these subsequent
accidents or that they have any bearing on his current claim. No independent
evidence was adduced about these accidents. Counsel for the defendants
cross-examined various expert witnesses called by Mr. Clemas about the fact
that he did not disclose to them these subsequent accidents. However, in the
absence of any evidence of the severity of these accidents (which might be more
accurately described as incidents) I find that they are not material to my
consideration of Mr. Clemas’ claims in this case. For the same reason, I
do not find that his failure to disclose them to the medical and other
professionals undermines his credibility or in any way negatively impacts on
the experts’ reports.

[32]        
Mr. Clemas also testified that he has in the past received treatment and
counselling for cocaine use. He was cross-examined on a number of entries in
his family doctor’s clinical notes that refer to occasional relapses. Mr.
Clemas was forthright about the issue and did not attempt to hide from the fact
that he once had a problem with the drug. Counsel for the defendant
cross-examined a number of the witnesses on this issue, including a number of
experts who were not aware or had not been told by Mr. Clemas about his past
drug problem. The defendants did not lead any evidence to suggest an ongoing
problem or to indicate that drug use was a factor in Mr. Clemas’ job
performance. Absent such evidence, I do not consider it relevant to the claims
being advanced in this case.

[33]        
Mr. Clemas describes his current condition as experiencing a dull pain
in his back every day with the intensity of the pain varying from day to day. He
experiences sharp pains from time to time, sometimes twice per day and other
times he will go a couple of days without such pain. He treats the pain with
over the counter medication.

The Plaintiff’s Lay Witnesses

Laurie Cummings

[34]        
Laurie Cummings is Mr. Clemas’ former common law spouse and the mother
of his two children. Ms. Cummings met Mr. Clemas in late 1988 or early 1989 in
Montreal when he was training there in pursuit of his Olympic judo aspirations.
Ms. Cummings moved to British Columbia for a period in 1990 then moved
here permanently in 1991. She maintained a common law relationship with
Mr. Clemas until they separated in May 2004. Their daughter was born in
1996 and their son in 1997.

[35]        
Ms. Cummings testified that prior to the accident Mr. Clemas was a very
active father to his children. They lived near the beach and Mr. Clemas regularly
took them on hikes and played on the beach. Their son was active in sports and
Mr. Clemas would often throw a football or baseball with him.

[36]        
Pursuant to a separation agreement entered into at the time of
separation, Mr. Clemas paid approximately $550 to Ms. Cummings in child support.
She testified that before the accident, Mr. Clemas made the payments on time
and was very generous to the children, often paying for extras over and above
the required amount. Mr. Clemas did not pay spousal support.

[37]        
Since the date of the accident, Ms. Cummings testified that Mr. Clemas
has occasionally struggled to make the child support payments and has sometimes
had to borrow money from her between pay cheques.

[38]        
Mr. Clemas’ activity level with the children has decreased, for example
he no longer throws balls with their son. Since the accident, he has seen the
children less frequently. Their daughter no longer regularly attends scheduled
weekend visits due to medical issues she has experienced. Their son also does
not see Mr. Clemas as frequently given that Mr. Clemas no longer engages
in the same level of activity with him.

[39]        
Ms. Cummings testified that when she first met Mr. Clemas and up until
the time of the accident, he was always a big, strong and athletic man who was
very outgoing. Since the accident, Ms. Cummings’ impression is that he has
“aged beyond his years” and is more of an introvert. On occasion she has
witnessed him display apparent stiffness in his back and a limp.

[40]        
In cross-examination, Ms. Cummings agreed that since their separation
she has seen less of Mr. Clemas although she said that they would continue to
see each other two to three times per week because of child exchanges, pick-ups
and drop-offs etc. Her only knowledge of the accident is through Mr. Clemas and
things that her children have told her. She testified that occasionally Mr.
Clemas would cancel a visit with the children or would bring their son home
early from a visit because he was not feeling well. She understood this to mean
that he was having back problems.

[41]        
It was suggested to Ms. Cummings in cross-examination that she was
sympathetic to Mr. Clemas and supportive of him. While Ms. Cummings agreed that
she wished him well, I did not find that she in any way tailored her evidence
to assist Mr. Clemas in his current claim. That said, her evidence is of
minimal assistance in determining the extent and severity of Mr. Clemas’
ongoing difficulties with his back.

Richard Clemas

[42]        
Richard Clemas is Michael Clemas’ father and the founder of R.C. Installations.
He is currently 73 years old and has been a plumber since the age of 21. He and
his wife have two sons: Michael Clemas and his brother Steve. Both sons
followed Richard Clemas into the plumbing business and both apprenticed with
him.

[43]        
R.C. Installations has always operated as a sole proprietorship. It has
never been incorporated and there are no shareholders.

[44]        
Both sons worked with R.C. Installations in the 1980s but at some point
Steve left to pursue other opportunities. Michael continued to work at R.C. Installations
through until 2008. Richard Clemas testified that he started to slow down in
2005 and then in 2006 he was diagnosed with prostate cancer. Due to his illness
he was largely away from the business in 2006-2007 during which time Michael
ran the business on his own. In the words of Richard Clemas, Michael kept the
business going.

[45]        
Richard Clemas returned to the business in the fall of 2008 following
Michael’s accident. He wasn’t looking to return to work at that time but Michael
asked for his help. After a period of time, Michael came back to work and would
follow him around to jobs, although Michael would direct him on what needed
doing as the work at that time was all on jobs that Michael had generated. According
to Richard Clemas, Michael worked until mid-November 2008 at which time he left
and did not return. On December 15, 2008, Michael announced to Richard Clemas
that he was quitting.

[46]        
There was some inconsistency between Michael and Richard Clemas’ version
of events surrounding Michael’s departure from R.C. Installations. For example,
in cross-examination, Richard Clemas denied that there was any dispute between
the two or that he had threatened to sell the business. He agreed that he made
payments to Michael in December 2008 but said that the money was money that
Michael had earned on jobs that he had done. He did not agree with Michael’s
characterization of these payments as severance.

[47]        
Following Michael’s departure from R.C. Installations, Richard Clemas
kept the business going for some time. Initially, he worked on completing jobs
for which Michael had signed contracts. He continued on with R.C. installations
through 2011 and brought his other son Steve back on a full time basis for a
year in 2010-2011. He has since slowed down again and is currently working on a
reduced hourly/daily basis servicing two historical clients.

[48]        
Richard Clemas expects that when he steps away permanently from the
business, R.C. Installations will simply be folded. He does not see hiring an
apprentice or an experienced plumber as an option to continue the business. In
his view, the only option would be for a family member to take it over. Steve
is employed elsewhere and isn’t interested and, according to Richard Clemas,
Michael is not capable of doing so due to his condition.

[49]        
Richard Clemas testified that in his estimation the average annual
income earned by R.C. Installations over the past three years is approximately
$130,000. No financial statements or other documents were produced to
substantiate this figure.

Julie Clemas

[50]        
Julie Clemas is Mr. Clemas’ wife. They have been married for about seven
months but have lived together for five years. They met approximately seven
years ago.

[51]        
Ms. Clemas testified that prior to the accident she and Mr. Clemas
participated in a number of recreational activities together including taking
trips, walking on the beach and hiking. She said that Mr. Clemas regularly
played golf and tennis and participated in judo three times per week.

[52]        
She described his mood and personality prior to the accident as happy,
light-hearted and full of energy.

[53]        
Since the accident they have not been on any trips together. Financially
they cannot afford it and they have to be careful not to engage in activities
that cause Mr. Clemas difficulty with his back. Ms. Clemas testified that
mood-wise, he is often sad and depressed. She described him as a proud man who
does not like to show pain and who feels that he is not adequately providing
for his family.

[54]        
Ms. Clemas testified that on a typical day, Mr. Clemas will wake up
after a difficult sleep and take some Advil for the pain. If it is a work day,
he will go to the Home Depot and she will often get texts throughout the day
from him saying that he is having a bad back day. When he comes home, he will
often position himself on the love seat to alleviate pressure on his back or
will play some X-box in the basement.

Paul Sahota

[55]        
Mr. Sahota is a department supervisor in the plumbing department at the
White Rock Home Depot store and is Mr. Clemas’ direct supervisor. Mr. Sahota
was promoted to that position in April 2013. Previously he was a sales
associate in the plumbing department at Home Depot.

[56]        
Mr. Sahota testified that a typical sales associate position involves
interacting with customers, restocking shelves with product, bringing product
down from shelves and some maintenance in the department. Placing and removing
product on and off shelves involves climbing ladders and using the “order
picker” which is a machine to which an associate is strapped that lifts the
associate in the air.

[57]        
According to Mr. Sahota, Mr. Clemas is not asked to use the “order
picker” or to climb ladders. Mr. Sahota and other sales associates in the
plumbing department are aware of Mr. Clemas’ back problems and will assist him
when lifting is required. Mr. Sahota is supportive of Mr. Clemas’ employment at
Home Depot and happy to assist him or accommodate his needs. For example, he
testified that occasionally he will allow Mr. Clemas to go lie down on a cot in
the first aid room or will excuse him early from a shift when his back is
hurting.

[58]        
Mr. Sahota described Mr. Clemas as being good at customer service. He
interacts well with the customers and the fact that he is knowledgeable in the
plumbing field is an asset. Mr. Clemas is the only ticketed plumber employed in
the plumbing department at the store.

[59]        
Mr. Sahota testified that Mr. Clemas is not a full time employee. He is
a part time employee who splits his time between the plumbing department and
the kitchen and bath department. According to Mr. Sahota, he can provide Mr.
Clemas with about 8-12 hours per week in the plumbing department and he gets
additional hours in the kitchen and bath department.

[60]        
In order for Mr. Clemas to become a full time employee, head office
would have to approve more hours for the department. If that occurred, Mr.
Clemas and other interested candidates would have to apply and go through an
interview process. Mr. Sahota indicated that due to Mr. Clemas’ knowledge and
experience he has the potential to advance in the company, however his back may
be an issue as department supervisors still must undertake the same physical
tasks as sales associates.

The Plaintiff’s Expert Evidence

Dr. Purtzki

[61]        
Dr. Jacqueline Purtzki is a licensed physician with a specialty in
physical medicine and rehabilitation. She examined Mr. Clemas on three
occasions at the request of his counsel and she prepared three reports which
were entered into evidence.

[62]        
Her first report dated July 27, 2012 summarizes her assessment of
Mr. Clemas based on an examination that took place on June 28, 2012. Based
on that assessment, Dr. Purtzki found Mr. Clemas to be suffering from lower
back pain “of mechanical type, compatible with recurrent flare-ups related to
activity, likely from facet joint dysfunction.”  She also noted that:

Mr. Clemas, likely had an increased risk of developing lower
back arthritis and degenerative changes over time. He was a high level athlete
in an extremely physically demanding sport (judo) before the MVA. His
musculoskeletal system likely took a lot of physical strain, and small
repetitive injuries that may have taken place despite the apparent absence of
significant injury to his spine. This is coupled with the physical demands of
being a plumber in a job that generally involves quite a bit of lifting and
pulling, pushing, crouching.

Prognosis for recovery even with
appropriate intervention, I believe, is still guarded. I think it is unlikely
that he will be able to return to a physically demanding or moderately
demanding labor job.

[63]        
Dr. Purtzki’s second report is dated August 14, 2012 and is an addendum
to her first report following a CT scan of Mr. Clemas’ lumbar spine. On
reviewing the CT report, Dr. Purtzki noted the presence of “bilateral spondylolysis
at L5 with grade 1 anterolithesis of L5 over S1, and then stated:

Mr. Clemas’ CT report provides evidence of an anatomical
defect in the low back, which corresponds to the clinical location of his pain
on examination and by description. His current symptoms are, in my view,
compatible with pain generation due to the instability of the spine at the
L5/S1 level. Given Mr. Clemas’ past history of vigorous physical activity and
the possible occurrence of a pars defect related to non-traumatic causes alone,
it is likely that the spondylolysis and possibly the spondylolisthesis were
present at some time before the MVA. Pars defects occur often during
adolescence and are often not recognized.

Given the history of onset of
much more severe, disabling low back pain after the MVA, it appears likely that
the pars defect became clinically symptomatic related to the MVA…Given the
available information, I think that Mr. Clemas incurred an injury to the low
back as a result of the MVA, which triggered the current disabling low back
pain.

[64]        
Dr. Purtzki’s most recent report is dated January 28, 2013 and it
summarizes her findings following a reassessment of Mr. Clemas on January 14,
2013. In this report, Dr. Purtzki essentially confirms her original opinion,
noting as follows under the heading “Prognosis”:

Mr. Clemas has significant general degenerative changes at
all lumbar spine levels, which are likely a combination of his age, his
previous work and his previous recreational activities such as competitive judo.
In addition, he has symptomatic grade 1 spondylolisthesis which seems to be
mainly limiting him. This debilitating back pain reportedly started after the
MVA in question. He continues to be limited and needed to make work and
lifestyle changes as a result.

The prognosis for resolution of
pain and regarding further back mobility is poor. The prognosis for long-term
functional employment is guarded and he likely will have flare ups of back
pain, especially if he suffers any additional trauma. He is at higher risk of
being laid off or having to take time off work due to back pain.

[65]        
In cross-examination, Dr. Purtzki agreed that much of the personal
history description set out in her reports is based on what Mr. Clemas told her.
For example, she agreed that he told her that he got a job for three months as
a foreman and that he later got a job through an acquaintance for a window and
siding company and that the company hired an assistant for him to do the heavy
carrying and lifting. She also agreed that her description of the accident was
based on what Mr. Clemas told her, including her reference to his vehicle being
pushed into the intersection.

[66]        
Dr. Purtzki did not recall whether Mr. Clemas had told her what he
actually did at his then current job, including shovelling rocks, lifting wood,
pouring concrete and lifting siding.

[67]        
In response to a question from counsel for the defendants, Dr. Purtzki
indicated that she did not agree that Mr. Clemas had improved significantly and
consistently from the date of the accident through until early 2013. She was
then questioned on Dr. Frobb’s clinical notes that show a pattern of
improvement over time with periodic flare-ups of his back requiring treatment
over a number of days. In Dr. Purtzki’s view, this pattern, that she described
as “remission and relapse”, does not suggest overall improvement in Mr. Clemas’
condition.

Dr. Frobb

[68]        
Dr. Mark Frobb is a licensed physician in British Columbia with
extensive experience in the treatment and management of chronic back pain and
acceleration/deceleration spinal injuries. Dr. Frobb is also accredited to
perform neural acupuncture and to practice osteopathic medicine which he
described as the non-surgical treatment of spinal problems using manual
treatments. Dr. Frobb has been a treating physician of Mr. Clemas since
November 2008 when Mr. Clemas was referred to Dr. Frobb by his family doctor.

[69]        
Dr. Frobb prepared a report dated June 27, 2012 that was entered into
evidence. In his report, Dr. Frobb noted:

Clinical examination reveals evidence of persistent findings
of a biomechanical dysfunctional vertebral movement disorder affecting the
spinal segmental areas of the lumbar spine associated with an accompanying
chronic myofascial pain syndrome in the supporting paravertebral muscles.

These clinical findings are superimposed on underlying
chronic degenerative changes of the lumbar spine and sacroiliac joints, a
condition that likely predates the motor vehicle accident in question.

In my opinion the accident of
September 16^th , 2008, is a significant causative factor with
respect to Mr. Clemas’s ongoing chronic pain disorder, physical restrictions
and diminished functional capacities as outlined in this report.

[70]        
Under the heading “Prognosis” Dr. Frobb states:

It is my clinical opinion that Mr. Clemas’s failure to show
significant improvement in his chronic pain disorder affecting the lumbar spine
following the accident in spite of multiple modalities of therapy places his
complete recovery at significant risk.

In my opinion, although there is
the possibility that functional capacity will improve over time as it relates
to physical workload and consequences of pain associated with this workload, in
light of the chronic nature of the complaints this outcome is not certain,
indicating that Mr. Clemas’s present clinical condition on the balance of
probabilities likely represents a status of maximum medical improvement.

[71]        
Dr. Frobb confirmed his medical opinion as set out in his initial report
in a subsequent report to Mr. Clemas’ counsel dated August 2, 2012 which he
prepared after reviewing various additional medical records.

Timothy Winter

[72]        
Mr. Timothy Winter is an occupational therapist employed by Back in
Motion Functional Assessments Inc. Mr. Winter conducted a functional capacity
evaluation of Mr. Clemas on January 8, 2013 and the results of his evaluation
are set out in a report that was entered into evidence.

[73]        
The functional capacity evaluation involved subjecting Mr. Clemas to a
number of tests intended to measure his ability to perform activities and tasks
associated with his occupation as a plumber. The testing also measured
Mr. Clemas’ effort in performing the various tasks in order to ensure that
the results of the tests are an accurate indicator of work capacity. Mr.
Winter’s findings are summarized at pp. 27-28 of his report as follows:

Evaluation findings indicate that Mr. Clemas is not
physically capable of his pre-motor vehicle accident occupation at this time.

Specifically, he presents as limited for the Heavy strength
requirements, as well as prolonged exposure periods to non-neutral body
postures (i.e. bending, twisting, outer range reaching, crouching, and
kneeling). Such non-neutral work demands are further complicated by concurrent
exposure to forceful handling and loading functions as are routinely encounter [sic]
in this occupation. Consequently, this is a poor occupational choice for Mr.
Clemas at this juncture.

With respect to work positions in
general, I am of the opinion that Mr. Clemas is capable of full-time employment
positions, provided the physical demands of such work are within the guidelines
and limitations outlined in this report.

[74]        
The limitations identified by Mr. Winter include some capacity for
select aspects of medium strength work and full capacity for light strength
work. According to Mr. Winter, medium strength work is work in which the
employee would be expected to lift up to 25 pounds frequently whereas light
strength work would involve occasional lifting of up to 20 pounds and frequent
lifting of 10 pounds.

[75]        
In his report, Mr. Winter notes, based on his interview with Mr. Clemas,
that since leaving R.C. Installations, Mr. Clemas has not returned to plumbing
work. He further notes that Mr. Clemas reported working as a foreman on a new
townhouse construction project where he periodically engaged in aspects of
plumbing work but left the physically arduous work to tradesmen and apprentices.
Mr. Winter also records that Mr. Clemas told him that he subsequently moved
into installing commercial siding for approximately two years but his tolerance
for such work deteriorated over time.

[76]        
In cross-examination, Mr. Winter agreed that he was not told by
Mr. Clemas about the extent of the physical demands involved in those two
jobs, many of which would fall within the classification of heavy strength
work.

Kevin Turnbull

[77]        
Kevin Turnbull is a chartered accountant and economist who prepared two
reports that were entered into evidence. The first is dated August 13, 2012 and
provides his opinion on the loss of earnings, both past and future, suffered by
Mr. Clemas. The second report is dated August 14, 2012 and he sets out a
methodology for calculating the cost of future care for Mr. Clemas.

[78]        
For the purpose of calculating Mr. Clemas’ lost income, Mr. Turnbull
assumed that but for the accident, Mr. Clemas would have continued to operate
R.C. Installations through until retirement at age 65. Accordingly, Mr. Turnbull’s
calculation of Mr. Clemas’ past income loss to the date of trial is based on
the difference between what he estimates Mr. Clemas actually earned from his
other employment between the date of the accident and November 7, 2012 (the
anticipated trial date as of the date of his report), which employment was
principally with PRL.

[79]        
Records provided by R.C. Installations revealed that Mr. Clemas
continued to be paid through until the end of 2008 thus Mr. Turnbull assumed no
income loss for 2008. I would note that this is inconsistent with Mr. Clemas’
evidence that once he left R.C. he received four “severance” cheques from his
father of $1500.00 each.

[80]        
For 2009, Mr. Turnbull calculated Mr. Clemas’ actual income based on a
T4 slip issued by E & P Construction for the almost three months that he
worked there and invoices issued by Mr. Clemas to PRL for the period of June to
December 2009. Because Mr. Clemas did not provide Mr. Turnbull with a complete
set of invoices covering the entirety of his time at PRL, Mr. Turnbull
estimated Mr. Clemas’ “actual” income in 2010, 2011 and 2012, up to the time he
left PRL in 2012, by reference to average hours worked and amounts billed to PRL
as reflected in the invoices Mr. Clemas did provide.

[81]        
In order to calculate the income that Mr. Clemas would have otherwise
earned from R.C. Installations, Mr. Turnbull used Mr. Clemas’ reported income
in 2007 and averaged it with his annualized pre-2008 earnings to come up with a
figure for 2009. For 2010 and subsequent years, Mr. Turbull assumed that Mr.
Clemas’ income from R.C. Installations would be $110,548, which is the amount
reported on Mr. Clemas’ 2007 Income Tax return and which reflects the net
income for R.C. Installations for that year as calculated by Mr. Turnbull.
The figure is significantly higher than the income reported on any previous
return filed by Mr. Clemas.

[82]        
Using this methodology, Mr. Turnbull calculated a past loss of income of
$149,843 net of tax from the date of the accident to November 7, 2012 as set
out in table six in his report:

[83]        
He testified that this figure would be slightly higher, by a few
thousand dollars, given that the trial in fact commenced on June 17, 2013.

[84]        
Mr. Turnbull calculates Mr. Clemas’ future income loss based on his
estimated loss in 2012, which he calculates to be $63,196 on an annualized
basis, extrapolated to age 65. Applying standard discounting factors, Mr. Turnbull
estimates Mr. Clemas’ future income loss to age 65 as $815,102. Counsel for
Mr. Clemas points out that this figure arguably understates Mr. Clemas’
loss in that it is based on his earnings at PRL when, in fact, he earns
considerably less at Home Depot.

[85]        
Mr. Turnbull notes in his report, and agreed on cross-examination, that
his calculation does not account for contingencies for unemployment, early
retirement or other factors, negative and positive, that might affect Mr. Clemas’
future employability and earning capacity. Nor does it account for the
possibility of diminished income from the plumbing business due to changes in
the economic climate, decreased demand for services, reduced work load etc. Further,
implicit in Mr. Turnbull’s calculation is the assumption that Mr. Clemas’
current earnings at the time of writing the report represent his maximum likely
earning potential.

Derek Nordin

[86]        
Mr. Nordin is a certified vocational evaluator who conducted a
vocational assessment of Mr. Clemas on January 24, 2013, the results of which
are set out in a report dated February 21, 2013 which was entered into
evidence.

[87]        
The vocational assessment consists of an interview of the client for 1.5
hours followed by a battery of tests intended to measure the subject’s academic
achievement, aptitude and vocational interests. In preparing his report,
Mr. Nordin also reviewed a number of the medical reports for Mr. Clemas as
well as Mr. Winter’s functional capacity evaluation report and Mr. Clemas’
income tax information for the years 2003-2008.

[88]        
As set out in his report, it is Mr. Nordin’s opinion that Mr. Clemas
“…is not currently employable as a plumber, in either a full or part-time
capacity.”  He further opined that a “best case” scenario for Mr. Clemas is
that he will be able to continue with Home Depot for the foreseeable future;
but he noted that even if this occurs, Mr. Clemas will stand to earn less
in such an occupation than he would have working as a plumber with his father
or at another company.

[89]        
In cross-examination, Mr. Nordin agreed that in fact the “best case”
scenario would be for Mr. Clemas to find work as a plumbing foreman. However,
he qualified that answer by noting the limited availability of such positions
given Mr. Clemas’ minimal experience in a supervisory function and the fact
that most companies will only employ one foreman who is typically the owner or
a senior employee.

The Defendants’ Evidence

[90]        
The defendant Rose Gabrlik testified about the accident. Ms. Gabrlik has
since married and I will refer to her by her married name, Rose Kleinsasser. Ms. Kleinsasser
is currently 25 years old and, to use her words, is a stay-at-home wife and
mother.

[91]        
Ms. Kleinsasser was the driver of the vehicle that struck the rear of
Mr. Clemas’ vehicle on September 16, 2008. Ms. Kleinsasser testified that
at approximately mid-day she was driving her father’s Honda Civic north on 176^th
Street in Surrey in the curb lane. She was coming from White Rock beach and was
heading home. In the rear of the vehicle there were two young girls, ages
approximately three and five years old, who Ms. Kleinsasser babysat. Ms. Kleinsasser
testified that she was stopped at the traffic light at the intersection of 176th
Street and 32^nd Avenue. The light changed to green for the vehicles
to turn left onto 32^nd Avenue. The vehicle in front of her started
to move as well but then stopped and she ran into the rear of the vehicle.

[92]        
Ms. Kleinsasser estimated that she was travelling about five kilometres
per hour. She does not recall hearing any screeching of tires and she said that
she travelled only a short distance before striking the rear of the vehicle in
front of her. She described it as a “quick start and stop.”

[93]        
Ms. Kleinsasser testified that there was not much of an impact and she
does not remember her body moving or striking any part of her car as a result
of the collision. She does not recall any significant sound on impact. She was
wearing a seatbelt at the time and does not recall it tightening as a result of
the impact. Ms. Kleinsasser testified that she does not believe that the vehicle
that she struck was pushed forward by the impact.

[94]        
According to Ms. Kleinsasser, after the collision, the vehicle in front
of her pulled forward through the intersection and parked across the street. The
driver (Mr. Clemas) then came back to her vehicle. She indicated that she
looked at the bumper of the other vehicle through her windshield before it
pulled ahead and from that vantage point did not observe much of anything in
terms of damage.

[95]        
Ms. Kleinsasser testified that the other driver appeared fine. He did
not complain of any pain at that time and she does not believe that he said
that he was injured. No police or ambulance was called because the collision,
in her view, was so minor that it was unnecessary. Ms. Kleinsasser testified
that her father’s vehicle sustained about $4,700.00 in damage, principally to
the front bumper and the area by the front licence plate. The vehicle was
repaired and her parents continue to drive it today. Ms. Kleinsasser identified
the photographs in evidence of her father’s vehicle.

[96]        
In cross-examination, Ms. Kleinsasser said she does not recall if
Mr. Clemas first got out of his vehicle after the impact and told her he
was pulling forward across the street because he was blocking traffic.

[97]        
It was put to Ms. Kleinsasser that there was more damage to her father’s
vehicle than simply to the bumper and licence plate as she described. Ms. Kleinsasser
was shown a copy of the ICBC damage report that indicated that the repairs undertaken
on the vehicle were more extensive than she initially suggested.

[98]        
It was also put to Ms. Kleinsasser that when she reported the accident
to ICBC, she reported experiencing a stiff neck and back. She did not recall,
however she agreed that the ICBC accident report reflects those complaints.

[99]        
It was also put to Ms. Kleinsasser that her description of a “quick
start and stop” was not accurate and that she had “squealed off” when she
started to move forward. Ms. Kleinsasser denied this suggestion.

The Defendants’ Lay Witness

Peter Glinnum

[100]     Mr.
Glinnum is the President of E & P Construction where Mr. Clemas was
employed for approximately three months in January to March 2009. Mr. Glinnum
testified that E & P Construction is a plumbing contractor that is engaged
in all aspects of the plumbing business including service calls and new
construction projects. It generally employs eight to ten people depending on
the workload at any given time.

[101]     Mr.
Glinnum testified that Michael Clemas responded to an ad that Mr. Glinnum
had put in the paper for a journeyman plumber. Mr. Glinnum interviewed Mr.
Clemas about his work history, his experience, past injuries, financial issues
and any other matters that might interfere with his ability to do the work. No
problems were identified and Mr. Glinnum hired Mr. Clemas as a journeyman
plumber.

[102]     Mr. Clemas
was hired in January 2009. He was hired on a full time basis with the
expectation of a 40 hour work week. Mr. Clemas worked full time for E & P Construction
until his termination at the end of March 2009.

[103]     Mr.
Glinnum testified that he was impressed with Mr. Clemas’ qualifications and
that he knew what he was talking about when it came to plumbing. Mr. Glinnum
also testified that he does not recall Mr. Clemas ever telling him about the accident,
any injuries he had, or any pain he suffered, nor did Mr. Clemas ever say that
he could not do the plumbing work. Mr. Glinnum testified that had Mr. Clemas raised
those issues, he would not have hired him as he needed a full time journeyman
plumber.

[104]     For the
entire duration of his employment at E & P Construction, Mr. Clemas
worked at a new townhouse development called the Azzure. According to Mr. Glinnum,
Mr. Clemas’ duties at the site included all aspects of plumbing work
including cutting wood, drilling holes, digging, carrying pipe and lifting up
to about 50 pounds. Mr. Glinnum testified that he would attend the
site every day and would observe Mr. Clemas doing physical work such as
carrying pipe, drilling holes and installing pipe. In Mr. Glinnum’s words, Mr.
Clemas did “basically what I expected him to do as a journeyman plumber.”  In
his view, Mr. Clemas fulfilled all of his required duties and was a good
employee.

[105]     Mr.
Glinnum testified that Mr. Clemas was fired for apparently pushing another
employee and threatening to punch him. According to Mr. Glinnum,
E & P Construction does not put up with any physical abuse
on a work site so they had to let him go. There was no other reason for his
termination as his work was good.

[106]     In response
to a question from counsel. Mr. Glinnum testified that Mr. Clemas was
hired as a journeyman plumber not as a foreman.

[107]     In
cross-examination, Mr. Glinnum indicated that in 2009, in addition to the
Azzure project, E & P Construction also had a hotel project ongoing in
Langley and was finishing a job in White Rock. Mr. Glinnum would move amongst
the sites. He would be at the Azzure site every day, usually for an hour but
sometimes he would stay longer and sometimes shorter. If he was not there in
the morning, Mr. Clemas was responsible for unlocking the lock box,
getting out the tools and instructing the apprentices.

[108]     Mr.
Glinnum was asked whether, in his absence, the on-site general contractor would
speak to Mr. Clemas about issues that arose. Mr. Glinnum said that whenever
issues arose, the contractor would call him directly although he agreed that
the contractor might also speak to Mr. Clemas because Mr. Clemas was the lead
journeyman plumber on site.

[109]     With
respect to the incident that led to Mr. Clemas being fired, Mr. Glinnum
testified that he had a vague recollection of there being some issue about
whether a water test had been completed but he could not recall the specifics. He
also testified that there is no formal probation period for new employees.

The Defendants’ Expert Evidence

Anthony Upton

[110]     Mr. Upton
is an accountant retained by the defendants to provide opinion evidence
concerning the plaintiff’s claim for lost earnings and to comment on the plaintiff’s
expert accounting report prepared by Mr. Turnbull.

[111]     Counsel
for Mr. Clemas challenged the admissibility of Mr. Upton’s expert report on the
grounds that i) it is argument in the guise of opinion, ii) it makes
conclusions of fact that are more properly within the realm of the trial judge,
and iii) it includes a number of inappropriate comments that go beyond the
proper scope of an expert report. While I agree that there are a number of
flaws in Mr. Upton’s report, I found that taken in its entirety, it did not
cross the line from opinion into advocacy and I admitted it into evidence.

[112]     The main
thrust of Mr. Upton’s report is his assertion that due to the inadequacy of the
financial information available to him, he is not able to assess whether any
income loss actually occurred in the years following the accident nor is he
able to determine potential future income losses. He notes in particular the
absence of income tax returns for Mr. Clemas in the years 2009 to 2012 and
supporting business and financial records for R.C. Installations.

[113]     Mr. Upton
was cross-examined extensively on his report. He was asked why in several
instances in his report he departed from the assumptions provided to him in the
letter of instruction from the defendants’ counsel. For example, despite being
told by counsel for the defendants to assume that as of two years prior to the
date of the accident Mr. Clemas was running R.C. Installations, Mr. Upton notes
at page 5 of his report that the information he has reviewed does “not suggest
that Michael Clemas was the owner of RC, in any year.”

[114]     Mr. Upton
also noted the lack of a complete set of invoices issued by Mr. Clemas to
PRL which in his view impeded his ability to assess income loss. Mr. Upton’s
report is dated March 19, 2013 and was written at a time when the parties did
not have complete information about Mr. Clemas’ earnings at PRL. Apparently,
about one week before the commencement of the trial, a complete set of invoices
was received from PRL. As a result, by the time Mr. Upton testified at trial,
he had reviewed the invoices and done a calculation of Mr. Clemas’ earnings from
PRL (and one other company for which Mr. Clemas did some minor work) for the
period of June 2009 to July 2012.

[115]    
Based on his review of the complete invoices, Mr. Upton calculated
Mr. Clemas’ gross income for those years as follows:

[116]    
Counsel for Mr. Clemas also submitted a tally of the invoices which showed
slightly different figures:

[117]     In his
written submission, counsel for Mr. Clemas points out that the above figures do
not include other income earned by Mr. Clemas, specifically the amount of
$13,896.48 that he earned from E & P Construction in 2009, the $1,300.00 he
earned doing some small contract work in 2010 and the $1,736.00 he earned from
Home Depot in 2012.

[118]     Another
critical opinion expressed by Mr. Upton in his report is that the 2007 reported
earnings for R.C. Installations were unusually high when compared to other
years, and therefore could not safely be used as the baseline for what Mr.
Clemas could or would have earned in future years had he continued to operate
R.C. Installations. As noted above, the 2007 figure formed the basis for Mr. Turnbull’s
opinion about Mr. Clemas’ income loss both pre and post-trial.

Dr. Duncan McPherson

[119]    
Dr. McPherson is an orthopaedic surgeon who examined Mr. Clemas on
July 12, 2012 at the request of counsel for the defendants. His finding
are set out in a report dated July 23, 2012 that was entered into evidence. Based
on his interview and examination of Mr. Clemas and his review of available
records, Dr. McPherson notes in his report as follows:

The patient has a continuing localized complaint in his low
back, however, retains smooth movement ability. He has a disability in the
sense of having arthritic changes in both acromioclavicular joints and he has had
a significant injury to his right wrist in the past which limits the range of
movement of his right wrist. Power, however, is present in his upper limbs and
his hands reflect heavy manual work at this time.

The available medical records
suggest that the patient had a mild low back strain which steadily improved. He
has also had periodic recurrences related to doing heavy work but seems overall
to have managed well and to remain physically active. One would not expect any
lasting disability as a result of this motor vehicle accident.

[120]    
Dr. McPherson provided an addendum to his initial report dated August
13, 2012 where he states:

We know that the patient has a
flexible back within the range of what is acceptable or necessary for manual
work. The patient apparently was involved full-time in plumbing work up to 2008
and the reason he stopped was because he and his father had some sort of
disagreement. It perhaps can be resolved. There seems to be no reason why Mr.
Clemas could not return to his plumbing occupation which is a special trade,
but he may prefer to carry on in his current occupation, applying siding to
homes.

[121]     Dr.
McPherson admitted in cross-examination that at the time he wrote both of his
reports, he did not have access to either the X-Ray report dated June 13, 2012
or the CT report dated August 3, 2012. With respect to the observation in his
second report that there is no reason that Mr. Clemas could not return to his
plumbing occupation, Dr. McPherson agreed that pain would be a reason that
Mr. Clemas may not be able to work. He suggested that pain was not a
“physical” reason and he noted the absence of any restriction in movement on
his examination of Mr. Clemas.

Analysis

Findings on the Accident and the Plaintiff’s Condition

[122]     As set out
above, Mr. Clemas and Ms. Kleinsasser differ on the magnitude of the impact of
the collision and there is no independent evidence to support either version.

[123]     On balance
however, given the difference in size of the two vehicles, the fact that both
were stopped prior to the impact, and the limited damage to Mr. Clemas’
vehicle, I think that the force of the impact can only be described as minimal
and that it is unlikely that it was sufficient to project Mr. Clemas’ vehicle
forward into the intersection to the degree that he testified.

[124]     Nonetheless,
there is no doubt that there was some impact and, as set out below under the
discussion of causation, I find that the impact was sufficient to trigger Mr.
Clemas’ back problems.

[125]     In terms
of Mr. Clemas’ condition, the evidence establishes that since the date of the
accident he has suffered from low back pain of varying degrees. As noted by Dr.
Purtzki, a CT scan performed in August 2012 revealed “bilateral spondylolysis
at L5 with grade 1 anterolithesis of L5 over S1.”  Spondylolysis refers to a
vertebra fracture, which can exist in many people without them being aware of
it, whereas spondylolisthesis refers to slippage of one vertebra over the next.
The degree of slippage is graded between 1 and 4 with 1 (which is what Mr.
Clemas was diagnosed with) being the lowest level.

[126]     Dr. Frobb,
in his June 27, 2012 report opines that Mr. Clemas suffers from chronic
myofascial pain syndrome and chronic pain disorder.

[127]     Counsel
for the defendants invited me to draw an adverse inference from the fact that
Mr. Clemas did not call as a witness his family physician, Dr. Cheyne, who
treated Mr. Clemas both before and after the accident. However, given the full
disclosure of Dr. Cheyne’s clinical records and the extensive medical evidence
before the Court from Dr. Frobb, who assumed the role of primary treating
physician, I am not prepared to draw such an inference. See Kemle v. McRae, 2013
BCSC 935 at paras. 87 – 89.

[128]     As noted
above, Dr. McPherson, the expert called by the defendants has a different view
of Mr. Clemas’ condition. In his opinion, Mr. Clemas suffered a mild low back
strain which has steadily improved.

[129]     I prefer
the evidence of Dr. Purtzki and, in particular, Dr. Frobb, who has had a treating
physician relationship with Mr. Clemas. Dr. McPherson’s opinion is based on a
relatively superficial examination of Mr. Clemas and he did not have available
to him the X-Ray report dated June 13, 2012 or the CT report dated August 3,
2012 when he authored his report.

[130]     That said,
I have difficulty with Dr. Purtzki’s assertion that Mr. Clemas has not improved
over time. The evidence established that Dr. Frobb has been Mr. Clemas’
primary treating physician for his back problems starting in November 2008. Following
the initial consult with Dr. Frobb on November 7, 2008, Mr. Clemas underwent an
intensive course of treatment involving manual therapy and neural acupuncture
that continued through November, December and into early January 2009. Dr.
Frobb noted steady improvement through that period.

[131]     Mr. Clemas
returned to see Dr. Frobb on July 2, 2009 complaining of paravertebral spasm.
He received six treatments over a two week period with Dr. Frobb noting in
his records that as of July 17, 2009, Mr. Clemas had returned to his “best
level”.

[132]     Mr. Clemas
next saw Dr. Frobb in October 2009 for four treatments, the final one on
October 26, 2009 when Dr. Frobb noted that Mr. Clemas was back to his best
level, that no further treatment was required and that he was discharged.

[133]     Mr. Clemas
returned to see Dr. Frobb on July 5, 2010 complaining of paravertebral muscle
soreness. He was treated five times with Dr. Frobb again noting on July 12,
2010 that Mr. Clemas had returned to his best level.

[134]     Mr. Clemas
subsequently sought treatment four times in April 2011, once in August 2011 and
five times in June 2012. On June 18, 2012, Dr. Frobb noted that Mr. Clemas
showed an excellent response to treatment and had improved to 7-8/9 status,
which Dr. Frobb testified reflects Mr. Clemas’ subjective assessment of his
condition (meaning that Mr. Clemas classified himself as at a level of seven or
eight out of nine, with nine representing the optimal level of pain). Thereafter,
Mr. Clemas saw Dr. Frobb once in August 2012, once in September 2012 and
four times in early April 2013.

[135]     According
to Dr. Purtzki, this treatment history does not indicate improvement over time,
rather it shows a pattern of remission and relapse. With respect, I disagree. It
is apparent that Mr. Clemas required extensive treatment shortly after the
accident but that his condition has improved over time to the point where both
the frequency and duration of treatment by Dr. Frobb has diminished.

[136]     It should
also be noted that during the period of early 2009 to June 2012, Mr. Clemas
was employed first by E & P Construction and then by PRL and was able to
function in these positions notwithstanding the fact that both involved a
relatively significant amount of physical work, albeit with periodic flare-ups
that required treatment.

[137]     In
summary, I find that Mr. Clemas suffered a low back injury that caused him
considerable pain and discomfort early on. I find that his injury has improved
over time but that going forward he is likely to continue to experience some
ongoing back pain as well as occasional flare-ups of greater severity.

Causation

[138]    
The principles governing the causation analysis are well established. A
helpful summary of those principles was provided by Madam Justice Martinson in Barnes
v. Richardson, 2008 BCSC 1349 at paras. 17 – 23:

[17] Determining the cause of loss and damage must be kept
separate from the assessment of damages to compensate for that loss and damage,
since different principles govern the two questions: A. (T. W. N.) v.
Clarke, 2003 BCCA 670, 22 B.C.L.R. (4th) 1 at para. 16. Causation
concerns whether the accident caused the pre-existing condition to be activated
or aggravated. The assessment of damages considers whether there was a
measurable risk that the pre-existing condition would have detrimentally
affected the plaintiff in the future, regardless of the defendant’s negligence:
Hosak v. Hirst, 2003 BCCA 42, 9 B.C.L.R. (4th) 203 at para. 10.

[18] Causation is established where the plaintiff proves to
the civil standard on a balance of probabilities that the defendant caused or
contributed to the injury: Athey v. Leonati, [1996] 3 S.C.R. 458
at para. 13, 140 D.L.R. (4th) 235.

[19] The Supreme Court of Canada considered the principles
that apply to causation in Resurfice Corp. v. Hanke, 2007 SCC 7,
[2007] 1 S.C.R. 333. The “but for” test applies, except in very limited
circumstances. Mr. Barnes bears the burden of showing that, but for the
negligent act of the driver, the injuries of which he complains would not have
occurred. In special circumstances, the law has recognized exceptions to the
basic "but for" test and applied a "material contribution"
test: see Resurfice at paras. 24-25 [and Clements v.
Clements, 2012 SCC 32 at para. 46]. Those circumstances do not apply in
this case. See also Bohun v. Sennewald, 2008 BCCA 23, 77 B.C.L.R.
(4th) 85, a medical malpractice case.

[20] However, neither test requires that the plaintiff
establish that the defendant’s negligence was the sole cause of the injury. A
defendant is liable as long as he or she is part of the cause of an injury,
even though his or her act alone was not enough to create the injury: Athey
at para. 17.

[21] There is no reduction of liability because of the
existence of other preconditions. The defendants remain liable for all injuries
caused or contributed to by their negligence: Athey at para. 17.
A non-tortious cause that precedes the accident but contributes to the injury,
a precondition, is not relevant to causation unless symptomatic at the time of
the accident: Larwill v. Lanham, 2003 BCCA 629, 190 B.C.A.C. 13
at para. 22. Even if a minor impact causes the plaintiff’s symptoms, it is no
answer for the defendant to say that the plaintiff was peculiarly vulnerable to
injury because of a pre-existing susceptibility: Rai v. Wilson
(1999), 120 B.C.A.C. 122 at para. 6, 196 W.A.C. 122.

[22] The law does not excuse a defendant from liability
merely because other causal factors for which he or she is not responsible also
helped produce the harm. It is sufficient that the defendant’s negligence was a
cause of the harm: Athey at para. 19.

[23] The finding of a
contribution outside of the de minimis range is a material contribution
and sufficient to render the defendant fully liable for the damages: Athey
at para. 44. The British Columbia Court of Appeal clarifies in Sam
v. Wilson, 2007 BCCA 622, 78 B.C.L.R. (4th) 199 at para. 109 that
“material contribution”, as used in Athey, is
synonymous with “substantial connection”, as used in Resurfice,
and should not be confused with the “material contribution test”.

[139]     Applying
these principles in the context of this case, I find that while Mr. Clemas
likely had a pre-existing back condition, that condition was asymptomatic at
the time of the accident. I find as well that Mr. Clemas’ low back pain was
triggered by the accident and that accordingly the defendants are liable for
the damages suffered.

Non-Pecuniary Damages

[140]    
The factors that the court must consider when assessing non-pecuniary
damages are well known and have been set out in a number of cases including by
the Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34 as follows (at
para. 46):

a)     age of the
plaintiff

b)     nature of
the injury

c)     severity
and duration of pain

d)     disability

e)     emotional
suffering

f)       loss
or impairment of life

g)     impairment
of family, marital and social relationships

h)     impairment
of physical and mental abilities

i)       loss
of lifestyle

j)      
the plaintiff’s stoicism (a factor that should not, generally speaking,
penalize the plaintiff: Giang v. Clayton, 2005 BCCA 54).

[141]    
In this case, Mr. Clemas relies on a number of authorities to support a
claim for non-pecuniary damages in the range of $85,000-$125,000. Specifically,
Mr. Clemas cites the following cases:

a)     Barnes
v. Richardson et. al, 2008 BCSC 1349

b)     Eccleston
v. Dresen, 2009 BCSC 332

c)     McKenzie
v. Sidhu, 2013 BCSC 925

d)    
Slocombe v. Wowchuk, 2009 BCSC 967.

[142]    
In response, the defendants rely on the following cases as supporting an
award in the $40,000-65,000 range:

a)     Kailey
v. Dhaliwal, 2007 BCSC 759

b)     Lowen
v. Kovacevic, 2005 BCSC 1520

c)     Miller
v. Lawlor, 2012 BCSC 387

d)     Noon v.
Lawlor, 2012 BCSC 545

e)     Solowoniuk
v. Morash, 2000 BCSC 1840

f)      
Wernicke v. Logan, 2007 BCSC 1899.

[143]     Awards of
non-pecuniary damages in other cases provide a useful guide to the court,
however the specific circumstances of each individual plaintiff must be
considered as any award of damages is intended to compensate that individual
for the pain and suffering experienced by that person (Trites v. Penner,
2010 BCSC 882 at para. 189). Moreover, the compensation award must be fair and
reasonable to both parties (Miller v. Lawlor, 2012 BCSC 387 at
para. 109 citing Andrews v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229).

[144]     In this
case, I accept that the pain associated with Mr. Clemas’ lower back condition
has caused a diminishment in his enjoyment of life, including his participation
in various recreational pursuits. However, I do not accept that the
interference is as extensive as Mr. Clemas claims so as to warrant an award of
damages in the $100,000 range.

[145]     In this
regard, I found Mr. Clemas’ evidence of his pre and post-accident activities
somewhat vague and lacking in detail. Further, the claim that he has been
unable to engage in any meaningful way in virtually any recreational pursuits,
or activities of any kind, is inconsistent with the fact that he was able to
function in a relatively physical job for almost four years after the accident.

[146]     That said,
the nature of Mr. Clemas’ condition and its associated pain supports an award
greater than the $50,000 proposed by the defendants.

[147]     Taking all
of the circumstances into account and bearing in mind the factors identified by
the Court of Appeal in Stapley, supra, I find that a reasonable
award of non-pecuniary damages in this case is $75,000.

[148]     The defendants
submit that the award for non-pecuniary damages should be reduced on account of
the significant risk that, given Mr. Clemas’ pre-existing condition, he would
have become symptomatic regardless of the accident. On this point, it is useful
to recall the evidence of Mr. Clemas’ own medical experts. For example, Dr.
Purtzki noted in her report dated August 14, 2012 that the spondylolysis and
possibly the spondylolisthesis were likely present at some time before the
accident. Similarly, Dr. Frobb stated in his report dated June 27, 2013 that
Mr. Clemas’ current condition was “superimposed on underlying chronic
degenerative changes of the lumbar spine and sacroiliac joints, a condition
that likely predates the motor vehicle accident in question.”

[149]     In Barnes
v. Richardson, supra, Madam Justice Martinson applied a 15% reduction to
the plaintiff’s damages to take account of the likelihood that an unrelated
event might have triggered his condition, in accordance with the “crumbling
skull” principle.

[150]     In my view
a similar approach is warranted here given my finding that Mr. Clemas would
likely have experienced similar symptoms in the future without the accident. I
would accordingly reduce Mr. Clemas’ damages by 15%, leaving a net award of
$63,750.00.

Past Income Loss and Loss of Future Earning Capacity

[151]     I will
deal with Mr. Clemas’ claims for past income loss and loss of future earning
capacity together because both involve assumptions about what he would have
earned had he not been injured in the accident.

[152]     The
central thrust of Mr. Clemas’ claim is that he can no longer work in his chosen
profession as a plumber. In support of this claim, he relies on the evidence of
Drs. Frobb and Purtzki, the functional capacity evaluation of Mr. Winter and
the vocational assessment of Mr. Nordin, all of which support the notion that
Mr. Clemas needs to switch careers.

[153]     The
difficulty is that it is apparent from the evidence that Mr. Clemas was able to
function as a lead journeyman plumber while at E & P Construction in 2009,
albeit the position lasted only three months. Similarly, he was able to function
for approximately three years at PRL, with some intermittent flare-ups with his
back that required treatment from Dr. Frobb. Further, it appears that none of
the experts relied on by Mr. Clemas were aware of the extent of the physical
requirements of either of the E & P or PRL positions.

[154]     Further,
what was not adequately explained in the evidence is why Mr. Clemas could
not assume a similar lead journeyman plumber role within the existing R.C.
Installations business. Both Mr. Clemas and his father Richard were adamant
that they would never hire a plumber from outside the family to work in the
business because they could not trust the work product. As a result, Mr. Clemas
is prepared to give up on the plumbing business entirely rather than adjust his
expectations in a way that might enable him to continue in the business in a
supervisory capacity and take advantage both of his skills and experience and
the good will of an existing business.

[155]     In light
of these factors, I do not accept that Mr. Clemas’ current employment at Home
Depot represents Mr. Clemas’ maximum or optimal earning potential.

[156]     Mr.
Turnbull in his report assumes that beginning in 2010, Mr. Clemas would have
earned $110,548 annually had he continued to operate R.C. Installations. That
figure reflects the estimated net income for R.C. Installations in 2007 which
is the highest net income figure by a significant margin for the years
2005-2010 as calculated by Mr. Turnbull. He then uses that figure to calculate
both Mr. Clemas’ past and future income loss.

[157]     In my
view, it is not reasonable to use the 2007 earnings as the benchmark by which
to assess Mr. Clemas’ potential annual income that he would have earned from
R.C. Installations. Mr. Clemas’ explanation for the 2007 result was that this
was the first year in which he operated the business by himself and he worked
extra hard to develop the business. No evidence was adduced to establish that a
similar level of productivity would continue into the future.

[158]     I think a
better approach, keeping in mind again that the assessment of damages is not
intended to be a mathematical calculation, is to average the net income for
R.C. Installations over the period 2005-2008. I would note that there is some
uncertainty about the accuracy of the figures used in Mr. Turnbull’s report
given that, as noted by Mr. Upton, Mr. Turnbull was not provided with income
tax returns or other financial information for R.C. Installations. Nonetheless,
Mr. Turnbull had access to the ledgers for R.C. Installations and I am
satisfied that I can rely on his figures for the purposes of this assessment.

[159]     Mr. Upton
took issue with the attribution of R.C. Installations’ net income to Mr. Clemas
for the purpose of assessing Mr. Clemas’ income. As Mr. Upton noted, there is
no clear indication that Mr. Clemas was ever the “owner” of R.C. Installations.
However, I agree with counsel for Mr. Clemas that legal ownership is largely
irrelevant here where R.C. Installations was run as an unincorporated family
business and where the income would flow directly to the person operating the
business.

[160]    
Mr. Turnbull estimates the net income for R.C. Installations as follows:

[161]     The 2008
figure is an annualized figure based on the income received in the pre-accident
period. The average annual net income for R.C. Installations based on the above
figures for the period of 2005-2008 is $78,631.50.

[162]     Taking all
of the above into account, I think it is reasonable to assume that Mr. Clemas would
have earned on average $80,000 annually as a plumber, either self-employed at
R.C. Installations or in a similar capacity had the accident not occurred. I
would note that this figure is similar to the $78,642 that Mr. Turnbull
estimated that Mr. Clemas would have earned in 2009 absent the accident and the
$81,988 that Mr. Turnbull projected as the net income of R.C. Installations in
2010.

[163]     Turning
then to Mr. Clemas’ claim for past income loss, the correct approach is to
compare what Mr. Clemas did earn in the period leading up to the trial, to what
he would have earned as a plumber, which I have found to be $80,000 per year.

[164]    
Using the figures provided by Mr. Clemas’ counsel, I calculate Mr.
Clemas loss as follows:

[165]     Mr.
Clemas’ claim for past income loss continues through 2012 and up until the
trial date of June 17, 2013. The difficulty is that Mr. Clemas quit his
employment with PRL in July 2012 and, in my view, he has been under-employed
ever since. Thus, it is not reasonable to use his earnings for a partial year
in 2012 or his earnings from Home Depot in 2013 to calculate his loss.

[166]     During the
years 2010 and 2011, when he worked full time at PRL, he earned on average
about $60,000, which includes some minor independent contract work. In my view,
this reasonably reflects what Mr. Clemas can be expected to earn from alternate
employment or in plumbing-related employment, for example in a supervisory
capacity.

[167]     Accordingly,
I would assess Mr. Clemas’ income loss for 2012 as $20,000 plus an additional
$10,000 for the approximately one-half of 2013 up to the date of trial. Adding
these amounts to the figures for 2009-2011, Mr. Clemas’ past income loss totals
$110,099.31. Adjusted for income tax, using the rate of 33.7% supplied by
counsel, the result is a net award of $72,995.

[168]    
Turning to the claim for loss of future earning capacity, the principles
governing an assessment of such a claim are well described by Mr. Justice Voith
in Brewster v. Li, 2013 BCSC 774 at para 142:

[142] The legal
framework for the assessment of the plaintiff’s future wage loss claim has been
described numerous times. The decision of Reilly v.
Lynn, 2003 BCCA 49, 10 B.C.L.R. (4th) 16 contains a
useful summary of some of the principles and approaches that are to be used
when assessing future earning capacity:

[100] An award for
loss of earning capacity presents particular difficulties. As Dickson J. (as he
then was) said, in Andrews v. Grand & Toy Alberta Ltd.,
[1978] 2 S.C.R. 229 at 251:

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

[101] The relevant
principles may be briefly summarized. The standard of proof in relation to
future events is simple probability, not the balance of probabilities, and hypothetical
events are to be given weight according to their relative likelihood: Athey
v. Leonati, [1996] 3 S.C.R. 458 at para. 27. A plaintiff is entitled to
compensation for real and substantial possibilities of loss, which are to be
quantified by estimating the chance of the loss occurring: Athey v.
Leonati, supra, at para. 27, Steenblok v. Funk
(1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.). The valuation of the loss of
earning capacity may involve a comparison of what the plaintiff would probably
have earned but for the accident with what he will probably earn in his injured
condition: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33
at 93 (S.C.). However, that is not the end of the inquiry; the overall fairness
and reasonableness of the award must be considered: Rosvold v. Dunlop
(2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1 at para. 11; Ryder v.
Paquette, [1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task of
the Court is to assess the losses, not to calculate them mathematically: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248
(C.A.). Finally, since the course of future events is unknown, allowance must
be made for the contingency that the assumptions upon which the award is based
may prove to be wrong: Milina v. Bartsch, supra, at 79. In
adjusting for contingencies, the remarks of Dickson J. in Andrews v.
Grand & Toy Alberta Ltd., supra, at 253, are a useful guide:

First, in many respects, these contingencies implicitly are
already contained in an assessment of the projected average level of earnings
of the injured person, for one must assume that this figure is a projection
with respect to the real world of work, vicissitudes and all. Second, not all
contingencies are adverse … Finally, in modern society there are many public and
private schemes which cushion the individual against adverse contingencies. Clearly,
the percentage deduction which is proper will depend on the facts of the
individual case, particularly the nature of the plaintiff’s occupation, but
generally it will be small[.][Underlining added in Reilly v. Lynn.]

[169]    
In Morgan v. Galbraith, 2013 BCCA 305, the Court of Appeal,
citing its earlier decision in Perren v. Lalari, 2010 BCCA 140, described
the approach to be taken by the trial judge when assessing a claim for loss of
future earning capacity. Madam Justice Garson stated at para. 53:

…in Perren, this Court
held that a trial judge must first address the question of whether the
plaintiff had proven a real and substantial possibility that his earning
capacity had been impaired. If the plaintiff discharges that burden of proof,
then the judge must turn to the assessment of damages. The assessment may be
based on an earnings approach…or the capital asset approach[.]

[170]     The
earnings approach is generally appropriate where the plaintiff has some
earnings history and where the court can reasonably estimate what the likely
future earning capacity will be. This approach typically involves an assessment
of the plaintiff’s estimated annual income loss multiplied by the remaining years
of work and then discounted to reflect current value, or alternatively,
awarding the plaintiff’s entire annual income for a year or two: Pallos v.
Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.); Gilbert
v. Bottle, 2011 BCSC 1389 at para. 233. While there is a more
mathematical component to this approach, the assessment of damages is a matter
of judgment not mere calculation.

[171]     The
capital asset approach, which is typically used in cases in which the plaintiff
has no clear earnings history, involves consideration of a number of factors
such as whether the plaintiff:  i) has been rendered less capable overall of
earning income from all types of employment; ii) is less marketable or
attractive as a potential employee; iii) has lost the ability to take advantage
of all job opportunities that might otherwise have been open; and iv) is less
valuable to herself as a person capable of earning income in a competitive
labour market: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.);
Gilbert v. Bottle, 2011 BCSC 1389.

[172]     In this
case, given that Mr. Clemas has an established earnings record both pre and
post-accident, I am satisfied that the earnings method is appropriate for
assessing his claim. As noted, Mr. Turnbull estimated Mr. Clemas’ loss under
this head by comparing what Mr. Clemas earned at PRL in 2012 to what he could
have earned at R.C. Installations, again using the figure of $110,548. He
calculated an annual loss of $63,196 which he extrapolated until Mr. Clemas
reached age 65 which resulted in a present value of Mr. Clemas’ alleged loss of
$815,000.

[173]      I have
found, however, that it is not reasonable to use the figure of $110,548 as the
benchmark for assessing Mr. Clemas’ loss. Rather, I have found $80,000 to be a
more accurate figure of what Mr. Clemas would have earned. Further, given
Mr. Clemas’ pre-existing condition and the likelihood that it would have
been triggered even without the accident, I think it doubtful that Mr. Clemas
would have continued as a plumber until age 65. I think it more likely that he
would have had to change occupations by age 60.

[174]     I
therefore find that Mr. Clemas will suffer an income loss annually of
approximately $20,000 until age 60. Using the multiplier provided by Mr.
Turnbull, which was not challenged by the defendants, I estimate his future
income loss to be $204,400, rounded to $205,000.

[175]     I would
note that had I employed the capital asset approach to assessing Mr. Clemas’
loss, I would have arrived at a similar figure. Taking account of the factors
identified by the Court in Brown v. Golaiy, supra, I think that
approximately $200,000 would be a reasonable amount to compensate Mr. Clemas
for his diminished earning capacity.

Cost of Future Care

[176]     Mr.
Clemas’ claim under this head of damages includes the cost of two types of
treatment identified by Dr. Frobb as being of possible benefit to Mr. Clemas. The
first is prolotherapy which involves a series of injections intended to
strengthen the connective tissues of the back. Dr. Frobb’s evidence was that a
course of six treatments would cost $1,500 and that this treatment is not
covered under the public medical services plan. The second possible course of
treatment is a facet rhizotomy, which involves using an electric current to
deaden the nerves in the affected area so as to reduce pain. According to Dr.
Frobb, this treatment costs between $5,000-10,000 every 6 to 18 months. The
cost of this treatment is covered by the medical services plan, however there
is a one to two year wait time for the treatment.

[177]     In my
view, the cost of these treatments is not recoverable from the defendants. Neither
treatment has been recommended by a treating physician. Rather, Dr. Frobb
simply identifies the treatments as a possible course of action, and with
respect to the facet rhizotomy, he notes that Mr. Clemas would have to be
assessed by a spinal pain interventionalist to determine if he is a suitable
candidate for the procedure. There is no evidence that Mr. Clemas has done
anything to investigate the possibility of pursuing either or both of the
treatments or that he has been assessed for suitability. Further, the facet
rhizotomy is available in the public health system. While this would not
necessarily disqualify someone from claiming the cost of the procedure if done
privately, there would have to be evidence supporting the need for the
procedure to be done quickly. No such evidence exists in this case.

[178]     I do
accept that Mr. Clemas will continue to require some treatment going forward
including periodic manual therapy from Dr. Frobb or a chiropractor, acupuncture
and pain medication. I think Mr. Clemas’ estimate of $540 on average every 12
months is reasonable. Using the multiplier set out in Mr. Turnbull’s second
report, which was not challenged by the defendants, results in a future care
cost to age 60, by my calculation, of $5,500.00. I have limited Mr. Clemas’
recovery to age 60 given my finding that he would have experienced similar
symptoms in the future without the accident.

Special Damages

[179]     Mr. Clemas
claims damages in the amount of $2,903.19. Some of this amount is supported by
invoices with the balance based on Mr. Clemas’ estimates of what he spends on
pain medication. He submits that his estimates are conservative. In the
circumstances, I think that a reasonable amount under this head is $2,500.00.

Loss of Housekeeping Capacity

[180]     Mr. Clemas
submits that as a result of the injury to his lower back, and the corresponding
physical limitations, he has had to cut back on housekeeping and yard
maintenance work. He says that his father does much of the yard work and that
his wife does virtually all of the housework. Mr. Clemas seeks an award of
$20,000 under this head.

[181]     In his evidence,
Richard Clemas testified that Michael was never required to do much in the way
of house maintenance on the house that he rents from Richard. Michael Clemas
himself testified that he would cut the grass at the house and that he is now
to the point that he cuts the grass about 60% of the time and that his stepson
does it the rest of the time. With respect to housework, Julie Clemas testified
that prior to the accident, she did most of the housework and that she
continues to do so after the accident.

[182]    
In Jones v. Davenport, 2008 BCSC 18, Mr. Justice Halfyard stated,
at para. 92, that the plaintiff must:

…establish a real and substantial
possibility that she will continue in the future to be unable to perform all of
her usual and necessary household work. It would also need to be shown that the
work that she will not be able to do, will require her to pay someone else to
do, or will require others to do it for her gratuitously.

[183]     Based on
the evidence, I am not convinced that there has been a significant impact on
Mr. Clemas’ involvement in house or yard maintenance and I decline to award
damages under this head.

SUMMARY

[184]    
In summary, Mr. Clemas is awarded the following:

[185]     If the
parties are unable to agree on costs, they may speak to the issue.

“Skolrood J.”