IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130828

Docket: M110420

Registry:
New Westminster

Between:

Glenn Loft

Plaintiff

And

Baljinder Singh
Nat and Rajinder Sandhu

Defendants

Before:
The Honourable Mr. Justice Jenkins

Reasons for Judgment

[1]            
The plaintiff, Glenn Loft, claims for damages for injuries suffered in a
motor vehicle accident which occurred October 2, 2007. Liability is admitted.

[2]            
Mr. Loft claims damages for pain and suffering including chronic pain arising
from the accident and for damages related to his claim that the accident has
exacerbated or contributed to his pre-existing degenerative problems and the
plaintiff’s pre-existing psychological / emotional problems. As well, the
plaintiff alleges that he has not been able to work since the motor vehicle
accident and as a result seeks lost income to date and future wage loss, future
care costs and special damages.

[3]            
The defendants admit the plaintiff is entitled to non-pecuniary damages
for pain and suffering resulting from the soft tissue injuries and to some
special damages but vigorously contest that Mr. Loft is entitled to any award
for loss of income, past or future, or for cost of future care.

[4]            
In order to appreciate both the claims made by Mr. Loft and the
positions taken by the defendants, it is necessary to review Mr. Loft’s
pre-existing health and addiction issues and his employment history leading up
to the motor vehicle accident.

I.                
Background of the Plaintiff to October 2007

[5]            
Mr. Loft was 46 years old on the date of the accident and was 51 years
old as of the trial date. His history has been very tumultuous and has been
marked by psychiatric or personality disorders, substance abuse and a very
unsettled employment record.

[6]            
Mr. Loft experienced a problematic childhood, which his counsel admits
likely included substance abuse. He achieved only a grade 9 education and was
deemed at a young age to have a psychiatric disorder. He spent time in a group
home in his teens. His substance abuse continued for several years, however,
Mr. Loft testified as to how he was able to overcome those problems after
attending rehabilitation programs in the mid-1980s.

[7]            
Through most of his working life, Mr. Loft has been employed or
self-employed in the automotive sales business. Since the early to mid-1990s
Mr. Loft has worked for many automotive dealerships, either in his personal
capacity or through various corporate vehicles. It is notable that Mr. Loft has
rarely continued to work with or be associated with any dealership for any
extended period of time. No doubt, Mr. Loft’s aggressive manner, psychiatric
and personality disorders have contributed to his inability to maintain stable
business relationships with others.

[8]            
In his evidence, Mr. Loft spoke at length of his successes in automotive
sales. He stated at one point that he had been told by the owner of one of the
dealerships he worked with that “no one had ever earned as much as him in cars
in western Canada”, and that he had been “very successful”. He also spoke of
how much he enjoyed the work, especially when he was able to close a sale. Mr.
Loft also testified that since he was so successful and was able to close so
many sales, he would receive a larger than usual commission rate on the sales.

[9]            
Mr. Loft claims that over the course of his career in automotive sales he
has developed a specialty in what has been referred to as “sub-prime”
automobile sales. Sub-prime sales are not the conventional sales off of a
dealer’s lot but rather involve extensive advertising directed at persons with
poor credit ratings, securing sales with little up-front investment by the
purchasers and culminate in high risk, high interest rate financing contracts
entered into by the purchasers. Mr. Loft’s role included receiving credit
information of potential purchasers of vehicles and providing the same to
lenders.

[10]        
Mr. Loft’s personal life has not been conventional. He married a woman
named Debbie in the early 1990s and they had two children, both of whom are now
teenagers. The marriage ended in divorce in 2002. During the entire time of his
marriage to Debbie, save for a period of approximately 5 months, Mr. Loft
maintained a “double life”, what he referred to as a “life of sin”, by also
living separately and secretly with another woman named Joanne, who he
supported financially. He testified that the “double life”, once exposed, was the
root cause of his divorce from Debbie. Mr. Loft lived with Joanne for certain
periods after the divorce from Debbie and she gave birth to Mr. Loft’s third
child. Eventually his relationship with Joanne also came to an end in or about
2005.

[11]        
Following his separation and divorce from Debbie, Mr. Loft testified of
his financial difficulties and that he worked only occasionally. He lost,
through repossessions, several of the “toys” he had collected during the latter
years of his marriage including, inter alia, a motorcycle and a yacht. In
his evidence Mr. Loft referred to the period between 2002 and 2005 as a “mental
holiday”. Unfortunately, in 2004 or 2005 he relapsed into cocaine use and he
also testified that in 2006 he entered recovery before returning to the
automotive sales business later that year. There was evidence at trial that he
entered more than one recovery centre during 2006.

[12]        
 In August of 2006 Mr. Loft joined Dueck, a large dealership in
Vancouver and he continued with Dueck until January 31, 2007. Mr. Loft
testified that he left Dueck after the company wanted him to lease a vehicle from
Dueck for his use whereas he felt he was entitled to have the use of a vehicle at
no cost to him during the course of his employment with Dueck. He refused to
enter into a lease and testified that Dueck then terminated his employment. He
further testified that the owner of the company, Mr. Keith, wanted him to stay
and as well, that at Dueck he was only earning a 22% commission whereas the
average commission for his type of work was 60%. Mr. Loft earned a total of
$46,141(gross) during the 4.5 months he was employed as a commission salesman
at Dueck.

[13]        
David Kent, a vice-president in used car sales for Dueck, was called as
a witness for the plaintiff. At one point, Mr. Kent had written a letter
directed to this Court at the request of Mr. Loft setting out what his income
had been in a 3.5 month period and provided an estimate of $5,500 to $6,000 per
month as what a salesperson of his experience “should make”. It would appear as
though that letter was provided to assist Mr. Loft in some litigation, presumably
his family law issues, however, Mr. Kent had no recollection of why he signed
the letter which was undated but was clearly sent before Mr. Loft’s employment
with Dueck was terminated.

[14]        
On cross-examination, Mr. Kent testified that Mr. Loft had been fired by
Dueck for allowing vehicles to leave the premises in the possession of clients
without having received payment and the appropriate documentation. Mr. Kent was
not aware of any attempt by Dueck to have Mr. Loft lease a vehicle or that he
had been terminated as a result of the failure to enter into a lease. Mr. Kent
also testified that during the time Mr. Loft was employed by Dueck, he became
aware of Mr. Loft’s reputation, that it was necessary to “watch his paper work
and his dealings with clients” and that they could not allow Mr. Loft to deal
with the banks and other lenders. He learned during the time Mr. Loft was with
Dueck that the lenders would not deal with Mr. Loft and so paper work and
applications for credit would go through the business managers. Mr. Kent
concluded by stating that Dueck “would not re-hire him”.

[15]        
Mr. Loft’s explanation as to being terminated for not agreeing to enter
into a lease with Dueck does not ring true, and in fact seems entirely
incredible. Based upon the evidence of Mr. Kent and the evidence relating to
Mr. Loft’s reputation, including the reputation that the banks and other
lenders would not deal with him in in the “sub-prime” market where financing
was a major factor in the sales, I find that Mr. Kent’s evidence as to the
reasons for Mr. Loft’s termination is far more credible.

[16]        
Upon leaving Dueck, Mr. Loft went to work at Richmond Chrysler from
January 22, 2007 to March 13, 2007 during which time his gross earnings were
approximately $23,000. According to Mr. Loft, he was terminated when the person
who had been his superior at Dueck stole his job. Also, Mr. Loft referred to
Travellers Financial, a lending institution, having “drummed up” evidence that
he was forging documents in order to obtain sales. Mr. Loft steadfastly denied
those allegations.

[17]        
After leaving Richmond Chrysler, Mr. Loft joined “Automarket”, which
consisted of two dealerships in South Surrey known as SK Automarket and KS
Automarket, which were owned by Ken Shalinsky, who also testified for the
plaintiff at trial. Mr. Shalinsky acknowledged that Mr. Loft was “good in a
specialized area”, ie. sub-prime, and Mr. Loft worked at Automarket between
March 17, 2007 and the end of September 2007. During that time, Mr. Loft earned
commissions of approximately $50,000. In spite of Mr. Loft’s productivity, Mr.
Shalinsky placed Mr. Loft under suspension and stated, “I was going to let
him go – he was not working for me at the time of the motor vehicle accident,
he was on suspension”. He also testified that Mr. Loft was suspended for a lack
of reliability because he was unreachable at times and that he never came back
to work after the motor vehicle accident.

[18]        
On cross-examination, Mr. Shalinsky stated that with Mr. Loft on staff
he had difficulty with the lenders who told Mr. Shalinsky to “keep him in the
background” and as a result Mr. Shalinsky and another staff member oversaw all
sales in which Mr. Loft was involved. During the summer of 2007 Mr. Shalinsky
was also aware of Mr. Loft’s past difficulties with drug addiction and began to
suspect that he was once again “back on drugs”.

[19]        
The final pay cheque from SK Automarket to Mr. Loft (who was carrying on
business at the time as “That’s Credit”) was dated September 30, 2007.

[20]        
Finally, Mr. Shalinsky testified that one year after the motor vehicle
accident, Mr. Loft came back to the dealership seeking a job and Mr. Shalinsky told
him “no”.

[21]        
Prior to Mr. Loft’s terms of employment with the dealerships mentioned
above, Mr. Loft had been employed or contracted with other dealerships in the
1990s and for periods operated his own automobile sales operations under various
corporations incorporated by him.

[22]        
Mr. Loft testified that by the time of the accident he “was intending to
leave SK to join Avenue Auto Sales which had offered him 70% commission instead
of the SK rate of 35%”. Later Mr. Loft stated that as of the date of the
accident he had made arrangements with Mr. Gerard Prins, owner of Avenue Auto
Sales, to commence work with him on October 7, 2007. However, Mr. Loft stated
that “SK Auto Sales found out” he had made plans to join Avenue Auto Sales and
terminated his employment with SK Auto Sales. He further testified that as of
just before the accident he had recovered, ie. from his drug problems, was
regularly attending church and “life was good”, had “no cocaine issues” and was
“looking forward”, meaning that he was looking forward to doubling his income
with Avenue Auto Sales.

[23]        
Mr. Prins was a witness for the plaintiff at trial. He testified that he
had known Mr. Loft since 1989 when Mr. Loft worked for him at an auto
dealership in North Vancouver. He stated of Mr. Loft that he “had never seen
anyone close as many deals, usually over 15 per month [and that] the profit per
deal was substantially above average . . .”

[24]        
However, Mr. Prins also stated in his direct evidence that he had no
recollection of having discussed with Mr. Loft any arrangement for him to go to
work for Avenue Auto Sales prior to the motor vehicle accident of October 2,
2007. Under cross-examination, Mr. Prins stated that he had no recollection of
discussing any business plans with Mr. Loft in the month before the motor
vehicle accident. I conclude that Mr. Loft did not discuss employment nor had
he concluded an agreement with Mr. Prins to work for Mr. Prins commencing in early
October 2007.

[25]        
Mr. Loft has not worked since the date of the accident.

II.              
The Motor Vehicle Accident of October 2, 2007

[26]        
On October 2, 2007 Mr.Loft was driving a 2005 Dodge Caravan vehicle
owned by SK Automarket and came to a stop at an intersection on the King George
Highway in Surrey. Shortly after coming to a stop his vehicle was struck without
warning from behind by a Mack truck which Mr. Loft estimated to have been
traveling at the time of impact at a speed of 50 km/hour. His vehicle was
pushed into the vehicle in front of him. He testified that the vehicle he was
driving was “written off” due to extensive damage. Mr. Shalinsky, owner of SK
Automarket, disagreed and said the vehicle was repaired.

[27]        
Mr. Loft testified that after the accident, his “body went numb” and he
was placed into an ambulance with assistance and taken to Surrey Memorial
Hospital. In the ambulance he testified that he began to feel pain in his head,
neck, between his shoulder blades, left hip, knees and ankles, lower back and
to the top left part of his head. He stated the pain was excruciating and he
begged for morphine to kill the pain but “Surrey Memorial Hospital said there
was nothing wrong and sent me home”. He said the hospital staff took no scans
of him.

A.             
Post-Accident Evidence of the plaintiff

[28]        
Mr. Loft testified that the day following the accident he continued to
experience soreness, especially in his neck and also in his left hip. Because
of the pain, he stated he went to a drop-in clinic where he received a “high
narcotic sedative for pain” which he continued to take for a period of six
months. Eventually the medication caused him to re-lapse on cocaine in or about
March of 2008. Subsequently he attended various clinics and rehabilitation
centres including Belkin House, Harbour Light Rehabilitation Clinic (from which
he stated he was “kicked out for being too self-righteous”), Creekside Detox
Centre and another rehabilitation centre referred to as Phoenix Centre, all of
which treatment continued over many months.

[29]        
In addition to blaming his relapse on the strong narcotic sedative he
also stated that his former wife’s relocation to Port Alberni with his two
children caused him to relapse.

[30]        
Mr. Loft testified that he has been “clean”, ie. drug free, since April
19, 2008

[31]        
Mr. Loft did not see his family doctor, Dr. Rebeyka, until two weeks
after the accident when he said his pain continued to be severe, mainly in his
neck and hips. He continued to describe his inability to sleep, constant
headaches, inability to sit for long periods without his legs going numb,
ringing in his ears, mid-back pain, and much more.

[32]        
Mr. Loft stated that his employment by Avenue Auto Sales was “put off in
the air” but that Gerard Prins visited him regularly while he was recuperating
from the accident.

[33]        
Reviewing Mr. Loft’s evidence of the state of his injuries since the
accident, he firstly described the problems and pain in his neck. He testified
that he still suffers neck pain, that his “rotation” has improved but his neck
tightens up and the pain lasts longer, that at no time is he without neck pain
and that he had seen a chiropractor for 2.5 years which only worsened the pain.
Mr. Loft referred to recent treatment from Dr. Karse, an “Integrated Body
Specialist”. Mr. Loft describes the vibratory and electronic pulse treatments,
performed by Dr. Karse, as “fantastic”. Mr. Loft concluded the discussion
of his neck pain by stating he has been taking “9 or 10 medications to help
lower the swelling” which sounds rather incredible.

[34]        
Regarding his back, Mr. Loft testified he still suffers sharp “knife like”
pain all the time, “especially when standing on [his] left leg” and since
seeing Dr. Karse the pain has been much better.

[35]        
Regarding his left hip, Mr. Loft described “knife like pain, like the
muscle has separated from the bone and needs wire and meshing back onto the
bone” which, he says, “will require a 6 month hospital stay”. He also stated
his hip pain is worse and that “when it is raining, there is pain all the time”
and he often has to lean on his right side.

[36]        
Mr. Loft stated that he still experiences constant sharp pain in his
left knee and says that it has worsened since the accident.

[37]        
As for his headaches, he testified that they have been constant all day
and night. He described his head as having been “smashed” and he understood
that his “brain had impacted with his skull and he had suffered a traumatic
brain injury” according to Dr. Yeoman. There is no medical evidence to support
the statement attributed by Mr. Loft to Dr. Yeoman, who had previously been his
chiropractor. Mr. Loft also stated that if he takes “lots of medication,
he feels nothing but he feels horrid without medication.”

[38]        
Mr. Loft also testified as to his sleep problems which he stated have
been worse lately. He stated he had “doubled-up” medications so that he sleeps
16-18 hours per day and gets up at 2 p.m. Mr. Loft listed many of the
prescriptions he has been prescribed by Dr. Rebeyka and other doctors.

[39]        
Regarding treatment, Mr. Loft received chiropractic adjustments from Dr. Yeoman
between February 2009 and September 2012 when he eventually stopped seeing Dr.
Yeoman. He also stated that the adjustments added to the chronic pain in his
lower back. Mr. Loft remains indebted to Dr. Yeoman in an amount of $14,806 for
several hundred sessions and has made no payments to Dr. Yeoman. In his
direct evidence, Mr. Loft described in some detail the treatments received from
Dr. Yeoman and in the end stated that the treatment “added to my chronic pain,
was unsuccessful and made it worse” and ultimately, “was of no use whatsoever”.
He did receive some relief on the day of the treatment but found that by the
following day his pain had all returned. When asked on direct examination why
he would continue with chiropractic treatments for four years if they were not
relieving the pain, Mr. Loft was unable to provide an explanation. It is also a
mystery as to how Mr. Loft was able to continue to receive chiropractic
treatment for over three years without making any payments.

[40]        
Mr. Loft was referred by his “downtown physician”, [as opposed to his
family physician] Dr. Eng, for massage therapy in December of 2012 and received
a total of three treatments, attended a gym which caused more pain and as a
result he did not continue with the treatment. Apparently Dr. Eng’s office was
more convenient for Mr. Loft to attend and so when he sought prescriptions
including renewals, he would go to Dr. Eng as opposed to Dr. Rebeyka for
reasons of convenience. Mr. Loft also attended a physiotherapist once in
January 2013 but stated he never “took it up” as he had no money for the
treatment.

[41]        
Mr. Loft also received acupuncture treatments from a Dr. Goog, which he
said helped him for six hours at a time.

[42]        
Mr. Loft testified that his doctor has told him he cannot work and he
has not worked since the accident. Mr. Loft has, however, obtained a license as
a professional musician and has taken up “busking” in certain areas of
Vancouver with little success. His busking pursuits have yielded run-ins with
the City inspectors and considerable negative reaction from the passing public.
In May of 2011 he was designated by the Ministry of Social Development as a
“person with disabilities” and  has received disability and social assistance
ever since. Mr. Loft lives in a two bedroom townhouse in what was referred to
as the Olympic Village and testified his accommodation is paid for by the City
of Vancouver. Mr. Loft also stated that his condition was “not acceptable for
CPP disability payments” but did not explain why he was not able to obtain a
disability status with the CPP.

[43]        
In summarizing his direct evidence regarding his current condition, Mr.
Loft emphasized that “he has to be heavily medicated to get through the day”,
that he has little or no energy for household chores, is not able to work in
the automobile industry, as a musician or in any other occupation due to his
pain and his continued reliance on medications. Mr. Loft listed at least 10
prescription medicines he continues to use as treatment for sleep problems, pain,
headaches, the “fluid dripping from [his] brain”, depression, bipolar disease
and muscle tension.

[44]        
There is little doubt that Mr. Loft is dependent on prescribed medicine
for several ailments or pain all of which contribute in a negative manner to
his ability to work and to “get through the day”. What needs to be decided is
the extent to which the injuries suffered in the motor vehicle accident have caused
the symptoms and have resulted in the need for medication which, in turn,
affect his ability to cope with daily life.

[45]        
Mr. Loft also stated that prior to the accident he did not suffer from
any physical problems.

[46]        
The defendants do not dispute that the plaintiff is entitled to
non-pecuniary damages for pain and suffering arising from the accident and is entitled
to compensation for the same and special damages arising from the injuries
suffered by Mr. Loft. The defence does say, however, that those damages are
limited and that Mr. Loft had fully recovered from his injuries by some point
in time in 2008 or 2009 and that the continuing pain and suffering he claims to
experience is unrelated to the motor vehicle accident.

[47]        
The defendants take great issue with Mr. Loft’s credibility and challenge
the extent to which any pre-existing degenerative conditions were exacerbated
by the motor vehicle accident and the extent to which the accident may have
caused or contributed to his psychological problems.

[48]        
During the balance of these reasons and before making my award, I will
review my findings on the credibility, or lack thereof, of Mr. Loft, the
relevant medical evidence before me relating to his physical injuries,
psychiatric assessments and pre-existing degenerative and psychiatric injuries,
followed by a summary of the evidence and findings on each head of damages
claimed by Mr. Loft.

B.             
Credibility of the Plaintiff

[49]        
In his written submissions, counsel for the plaintiff agreed that Mr.
Loft is  “prone to grandiose statements” and it is acknowledged that Mr. Loft suffers
from psychiatric / personality disorder and that as a result, during those
times Mr. Loft’s statements “should be viewed with extreme caution”.

[50]        
Related to the allegations regarding Mr. Loft’s lack of credibility are
allegations that Mr. Loft lacks any integrity in his business practices and
hence affects his employability in the field of automotive sales business. It
is submitted that since his soiled reputation pre-dates the accident, his
claims for lost income and future income resulting from his injuries are not
made out.

[51]        
After a careful review of the evidence, I have no hesitation in finding
that Mr. Loft’s evidence is lacking credibility overall. I am satisfied that he
has not just exaggerated any pain and suffering he has encountered but that he
has tailored his evidence to suit the claims he is advancing. Counsel for the
defence has provided many examples of Mr. Loft’s lack of credibility and I will
now review some of the most pertinent examples and other evidence of Mr. Loft
which I do not accept as credible:

a)    I
have previously mentioned that Mr. Loft stated he left Dueck as the employer
was requiring him to lease a vehicle from them to use during his employment.
Presumably Mr. Loft was expecting a vehicle for no charge or lease payments but
even if he were under that expectation, it would not make sense to leave a job
with a long-established and successful dealer over such an issue. I also accept
the evidence of Mr. Kent of Dueck that Mr. Loft was dismissed for allowing
vehicles to leave the lot without payment and that Dueck was unable to allow
Mr. Loft to deal with financial institutions including banks due to his
reputation. Mr. Loft’s evidence as to the reason for his departure from Dueck
is simply beyond belief.

b)    Mr.
Loft testified that prior to the motor vehicle accident he was planning to
leave his job at SK Auto Market and the owner of SK Auto Market fired him after
finding out Mr. Loft was about to join Mr. Prins working at Avenue Auto Sales.
Mr. Prins, who was called as a witness for Mr. Loft, denied the existence of
any agreement having been made with Mr. Loft to join Avenue Auto Sales in the
fall of 2007 and that he had not seen Mr. Loft since Mr. Loft worked for
him in the early 2000s at Carter GM and shortly after the accident. Mr. Loft
also stated that Mr. Shalinsky of SK offered him a greater commission which was
refused by Mr. Loft; this was denied by Mr. Shalinsky, whose evidence I accept.
Again, Mr. Shalinsky was called as a witness for the plaintiff and yet his
evidence significantly contradicted Mr. Loft’s evidence.

c)     Mr.
Loft also stated that he was not consuming cocaine in the months before the
accident. At one point he denied having used cocaine in the 8 – 10 weeks
preceding the accident, only to later admit he had used cocaine in that period
of time. Mr. Shalinsky believed, based on Mr. Loft’s behaviour leading up to
the accident that he had been using drugs and testified he was considering letting
him go due to drug use. Also, evidence put before Mr. Loft on cross-examination
of his admission to several hospitals including Royal Columbian Hospital and
Chilliwack General Hospital, the Colony Farm Forensic Psychiatric facility,
Last Door recovery centre and “Together We Can”, where he failed in recovery
attempts in 2004-2006 and later admitted to using cocaine in 2007 lead me to
believe that Mr. Loft was more likely than not using cocaine in and around the
time of the accident.

d)    Mr.
Shalinsky stated that the vehicle driven by Mr. Loft in the accident was
repaired whereas Mr. Loft stated the vehicle had been written off. Mr. Loft’s
evidence was most likely tailored to make the accident appear to be of greater
impact than was actually the case.

e)    Mr. Loft
testified that since the accident, exercise had caused him pain and as a result
he had to stop his workouts. That evidence conflicts with the records put into
evidence from March of 2009 at Belkin House, an addiction centre, which
attributed statements from Mr. Loft as follows:

Feeling well.

Going to Steve Nash’s gym to work
out.

Working out a lot.

Working out with Rodney Beemish
from HL (also going to be a soldier)

 . . . . . . If it all goes well,
will get employed with Tug Boat Union

and on March 15, 2009:

Doing very well.

Working out a lot! Built like a
truck now.

Still going to many SF classes.

f)      The
quotation above also is evidence of Mr. Loft’s intention to go to work on a
tugboat which contradicts his evidence that he was unable to go to work,
especially work that would have physical demands as would be the case working
on a tug boat.

g)    Under
cross-examination Mr. Loft at first denied having been injured in a motor
vehicle accident in December of 2006 but eventually admitted to having been
“broadsided in a Cavalier”. His injuries, as reported to Dr. Rebeyka on
January 29, 2007 included swelling of the left knee, lower back pain and knee
pain.

h)    On several
occasions when one would have expected Mr. Loft to advise persons of the
injuries he alleges were the result of the October 2, 2007 accident, he did not
do so. For example, on being admitted to the Salvation Army Harbour Light
facility in May of 2008 he completed a questionnaire which included only a
“heart murmur – monitored regularly – physically fine” with no reference to
injuries suffered in the motor vehicle accident. Mr. Loft was discharged from
Harbour Light after one month after confrontational behaviour with roommates
and a counselor. Shortly thereafter in late June of 2008 Mr. Loft attended upon
Dr. MacEwan, a psychiatrist, who reported to Dr. Rebeyka:

Glenn very openly stated that part of his motivation for
being assessed psychiatrically is he was hoping he could obtain a letter to be
able to bring into court stating his psychiatric problems that were preventing
him from being able to meet his financial obligations. He also stated that he
was hoping he could get on to disability as a way of supporting himself.

Although Dr. MacEwan reported on several
stressors described by Mr. Loft which he believed were contributing to his
psychiatric problems, there was no mention in Dr. MacEwan’s report of any
physical problems or any disability relating to injuries he had suffered in the
motor vehicle accident of October 2, 2007. If Mr. Loft had been experiencing
the extent of pain he has described at trial, the pain would no doubt have been
mentioned to Dr. MacEwan as one of the many contributors to his emotional
state. It was not reported.

i)       It
is also clear on all of the evidence that Mr. Loft has “burned bridges” within
the automotive sales industry, especially with financial institutions lending
on auto purchases and yet he insists he could work in that industry and earn
sums of up to $100,000 per year. Based on the evidence of Mr. Kent, Mr.
Shalinsky and even Mr. Loft’s self-report to Dr. Rebeyka as recorded in Dr.
Rebeyka’s clinical notes of June 23, 2009 as follows:

work is a problem – car industry – my reputation will not
let me work there

It is abundantly clear that Mr. Loft’s
reputation precedes him.

j)      Mr.
John Doornbosch testified for the defendants. Mr. Doornbosch had 37 years of
experience with Ford dealerships including a dealership named Zephyr between
1975 and 2000 when he met Mr. Loft. After Mr. Loft left the employment of
Zephyr, management asked Mr. Doornbosch to investigate why the dealership had
$2.2 million in receivables. Mr. Doornbosch was handed an envelope which
contained 20-25 cheques which had been received from purchasers by Performance
Leasing, a company owned by Mr. Loft which was handling lease contracts for the
Ford Motor Company and Zephyr Ford. Many of the cheques had never been
submitted to the banks on which they had been drawn and some had been returned
for non-sufficient funds. The cheques were all correlated to sales or lease
agreements in which Performance Leasing had been involved. The cheques were for
down payments or security deposits on leases. Eventually all of the amounts
reflected in the cheques were written off as losses by Zephyr and Ford and the
vehicles had been delivered to leasees. These dealings support the reputation of
unreliability and dishonesty that Mr. Loft has received in the automotive sales
industry and supports the position of the defendants that Mr. Loft is
essentially unemployable in the field where he once had success, ie. in auto
sales and leasing.

k)     Mr. Loft
testifed that Mr. Strato Malamas was going to finance the opening of a Maserati
dealership for Mr. Loft but that after the accident and the injuries he
suffered in the accident, that business venture did not proceed. Mr. Malamas
was called as a witness for the plaintiff and stated that he decided not to go
into business with Mr. Loft as something was “not right” about Mr. Loft,
without reference to the injuries suffered in the accident. It was apparent to
me that Mr. Malamas was referring to something being “not right” about Mr. Loft
as a business partner or someone with whom he would consider making a
significant investment.

l)       Mr.
Loft also stated that after the accident the pain was “excruciating” and he
begged for morphine. The pain complaint rings hollow as the personnel at the
hospital did not even take any images of Mr. Loft to investigate his complaints
and instead sent him home.

[52]        
There were several other instances throughout Mr. Loft’s evidence which
reinforce my finding of his utter lack of credibility but for the sake of
moving forward, I believe sufficient examples have been provided.

[53]        
Included in my finding of Mr. Loft’s lack of credibility, I am of the view
that Mr. Loft has grossly exaggerated the pain he has suffered and I do
not accept that pain from the soft tissue injuries has continued to worsen as
alleged by him.

III.            
Medical Evidence of Mr. Loft’s Injuries

[54]        
 Dr. Walter Rebeyka, who has been Mr. Loft’s family doctor for many
years, Dr. William Yu, an orthopaedic surgeon, and Dr. Roy O’Shaughnessy, a psychiatrist,
all testified in support of the plaintiff’s claim.

A.             
Dr. Walter Rebeyka

[55]        
Dr. Rebeyka was a very credible witness whose clinical records of his
many consultations with Mr. Loft both before and after the motor vehicle
accident were very helpful. Those entries in his records of most significance
in this matter are referred to below. Where Dr. Rebeyka has used abbreviations
I have expanded his notes:

·      
December 1, 2003 – Left hip sore – two years

·      
August 5, 2004 – slipped disc in back – drug use

·      
September 11, 2006 – complaint of left side back pain – muscle
pain he had had for years

·      
January 29, 2007 – low back – hip clicks when rolling over in
bed, tender [back] to left hip

·      
October 15, 2007 – ICBC – was rear-ended by Mack truck on an
intersection on October 3, 2007 – no ongoing problems – immed complaint
headache, neck pain and left arm pain – Also in the interval between the
accident and October 15 his problems included neck soreness with some swelling
front and back, low back pain, middle back pain, left arm

·      
June 17, 2008 – complaints re back of left hip – left hip had a
normal range of motion

·      
January 27, 2009 – going to the gym regularly – left knee sore

·      
June 23, 2009 – work is a problem – car industry – my reputation
will not let me work there

[56]        
It is noted from these records that the first mention of a left hip
injury in Dr. Rebeyka’s records after the motor vehicle accident was in
June of 2008, approximately 8.5 months after the accident. There had been a
prior complaint of “left hip sore” in 2003 and the complaint of his left hip
“clicking” when rolling over in bed was made in January 2007.

[57]        
In his report of January 21, 2010 Dr. Rebeyka stated:

As noted above, given the
complexity of his mood disorder and emotional state along with his physical
complaints, the exact determination of disability as a consequence of the motor
vehicle accident of October 2007 is extremely difficult to make. . .

B.             
Dr. William Yu

[58]        
In his report of June 25, 2010, Dr. Yu stated:

Immediately [after the accident] he had severe pain all over
but specifically he had a headache and pain in his neck, upper back, left
shoulder, low back, hips (left more than right), left knee and both feet.

X-ray of the cervical, thoracic and lumbar spine done on
December 9, 2009, at GMIS showed multiple levels of degenerative changes with
straightening of the normal lordosis. . . . There are degenerative changes and
mild disc space narrowing at L3/4, L4/5 and L5/S1.

This gentleman sustained significant soft tissue injuries
involving his cervical, thoracic and lumbar spine in an accident on October 2,
2007. There are no neurological findings in his cervical, thoracic or lumbar
spine. He also complained of pain in his left shoulder and left hip.

On review of Dr. Rebeyka’s
clinical records, Mr. Loft has complained of episodes back pain, described as
muscle pain, for years prior to a motor vehicle accident in December 2006. Mr.
Loft was more likely to have increasing symptoms following a fairly significant
rear end collision.

[59]        
It should be noted in reference to the report by Mr. Loft following the
accident and pain to his hips that the first report of any hip pain was during
the June 17, 2008 appointment Mr. Loft had with Dr. Rebeyka.

[60]        
Although Dr. Yu is an orthopaedic surgeon and not a psychiatrist, he
also offered the following words in his report:

I believe the soft tissue
injuries he sustained in the accident are significant factors in his relapse
into drug addiction and his ability to overcome both his physical and emotional
difficulties is uncertain

I give no weight to those comments as I find them to be
beyond the scope of Dr. Yu’s area of qualified expertise.

[61]        
On cross-examination, Dr. Yu stated that a labral tear in the area of
his hip, if there was in fact such a tear, was not likely the result of the
motor vehicle accident of October 2, 2007. Dr. Yu also agreed on
cross-examination that it is common in males over 40 years of age to have some
evidence of labral tears, although he was not prepared to estimated such a
condition in as many as 50% of the male population at 40 years of age.

[62]        
Dr. Yu also agreed that if the accident caused any hip pain, such pain
would normally be experienced closer in time to the date of the motor vehicle
accident. In this case, Mr. Loft first reported the hip pain in June of 2008,
contrary to the information on which Dr. Yu gave his opinions.

C.             
Dr. Roy O’Shaughnessy

[63]        
As stated above, Dr. O’Shaughnessy is a psychiatrist. He met with Mr.
Loft on May 3, 2011. Dr. O’Shaughnessy’s evidence was pre-recorded prior to
trial and a DVD of his direct and cross-examinations was played at the trial.

[64]        
In his report dated August 15, 2011, Dr. O’Shaughnessy stated he had
been retained “for an independent psychiatric assessment to determine if [Mr.
Loft] has suffered any mental disorder or aggravation of psychiatric illness
resulting from injuries sustained in the motor vehicle accident of October 2,
2007”.

[65]        
Statements of significance included in the report of August 15, 2011
include the following:

Unfortunately, at the time he had no financial resources and
could not continue in physiotherapy. Ultimately he has never had any definitive
treatment for his soft tissue injuries.

Over the years there has been evidence of underlying
personality dysfunction with mixed features. It is difficult in retrospect to
determine how much of his difficulties were directly related to his substance
use problems over the years versus personality traits bringing him into
conflict with others as well as occasionally into conflict with the law. He has
been diagnosed as having mixed antisocial and narcissistic traits and I think
this is appropriate.

In addition to personality difficulties, he has also shown
evidence of Mood Disorder that is again interwoven with his Substance Use
Disorder and somewhat difficult to evaluate in retrospect. Certainly there is
evidence that he has had periods of anxiety and depression and Dr. Rebeyka has
treated him with both Effexor and Paxil at various times. It would appear from
the way the prescriptions were given this was more for anxiety than true
depression although it is entirely possible he did have some form of Mood
Disorder in years past.

His greatest psychiatric difficulties have been related to
substance use.

In piecing together the material, it is clear this man had a
pre-existing psychiatric illness meeting the threshold for the following
diagnoses:

1.         Cocaine dependency.

2.         Alcohol dependency in
remission.

3.         Possible Mood Disorder
NOS or Bipolar Affective Disorder in remission on medications at the time of
the accident.

In addition, it is clear this man did have underlying
personality difficulties likely stemming directly from his adverse childhood
experiences. These symptoms are characterized by a mixture of narcissistic and
antisocial traits.

From my review of the material, there does not appear to be
any aggravation of his pre-existing Mood Disorder post accident. …I generally
concur with Dr. Baker’s observations that he probably was psychologically
destabilized post accident given the pain he was experiencing coupled with
other stressful situations in his life including financial problems as well as
ongoing litigation with his former wife over child support etc. It is entirely
possible that the injuries and the stress related to the above-noted problems
did aggravate his pre-existing Substance Use Disorder. By the same token, it is
equally possible that he could have continued using substances in any event until
he finally came to grips with his addiction in April 2008. I do not believe
there is any empirical way of knowing this either way nor is there any clear
medical methodology that can clarify the situation further.

I am more impressed that his Substance Use Disorder and other
psychosocial difficulties complicated his abilities to recover from the soft
tissue injuries sustained in this accident. While it is certainly clear he
likely suffered soft tissue injuries and that his pain would have been worse in
any event given the pre-existing underlying degenerative disc disease, it is
also clear that his perceived pain and disability were greater than one would
have anticipated given the circumstances. I take note of Dr. Schweigel’s
observations of a number of non-organic signs. Non-organic signs simply
indicate that a person’s complaints of pain are not organic or medical in basis
and that likely other factors are playing a role. These other factors can be
psychosocial or more direct exaggeration of complaint. Given the circumstances,
it is clear this man was under a great deal of psychosocial stresses [sic] both
before and after the accident with the combined difficulties of dealing with
his addictions, dealing with his relationship breakdown with his second wife
and the problems related to child access and custody, and problems financially.

Since the accident, there has been substantial disruption to
his lifestyle. In large measure this was due to his ongoing struggle with the
substance use requiring him to spend lengthy periods of time in residential
treatment centres. While there may have been some aggravation of his substance
use post accident, it is clear that the majority of his difficulties all
existed before the accident and were unrelated to it.

At this point I am impressed that he has had little in the
way of actual physical treatment for his soft tissue injuries and the ongoing
degenerative disc disease. He is preoccupied with his pain and I suspect
perceives his disability as much greater than it actually is.

Current diagnoses include:

1.         Cocaine dependency in
remission.

2.         Alcohol dependency in
remission.

3.         Mood Disorder NOS in
remission.

4.         Pain Disorder.

The disorders in remission, i.e. his cocaine and alcohol
dependency and Mood Disorder, simply mean that there are no current signs or
symptoms of those disorders present.

A Pain Disorder is a somatoform
illness in which the person’s complaints of pain may have a significant
psychological component. There are three subtypes of Pain Disorder with the
most common being mixed causation where both biological or organic factors and
psychological factors are at play. It is evident in this case that he has clear
biological factors with regard to his pain including underlying degenerative
disc disease as well as superimposed soft tissue injuries from the accident. In
my opinion, however, there are obviously psychological factors also at play
including his ongoing anger and bitterness over his situation and his social
stresses with current litigation and conflict with ex-partners as well as a
general sense of dysphoria and unhappiness over his life circumstances related
to losing his job, having no income, being financially dependent, and overall
losing his status that he previously enjoyed. Certainly he appears to be
perceiving himself to be much more disabled physically than the medical record
would suggest is warranted. Again I note the observations of Dr. Schweigel who
documented multiple non-organic findings, again suggestive of some psychosocial
factors playing a role in his perceptions of pain.

[66]        
Counsel for the plaintiff has emphasised Dr. O’Shaughnessy’s reference
to a somatoform illness and states “[t]his is unconscious – ie. that the
plaintiff is genuinely experiencing the pain he is reporting”. This subject was
canvassed further in Dr. O’Shaughnessy’s evidence on both examination-in-chief
and on cross-examination, extracts of which are re-produced below:

Q         And I’m
going to just ask you a question specifically about number 4, which is pain
disorder. Two paragraphs down, you say, A pain disorder is a somatoform illness
in which a person’s complaints of pain may have a significant psychological
component. Can you explain what you mean by somatoform.

A.         Somatoform
illnesses are a group of psychiatric diagnoses that share in common a
presentation of what appear to be physical complaints where there is no
adequate medical explanation for the difficulties and in which psychological
factors are assumed or presumed to playing a significant role, either in the
onset or the perpetuation of them, so things such as conversion disorders,
where they have symptoms that appear to be neurological in the absence of any
actual neurological damage is an example. A more general somatization disorder
would have all panoply of different complaints where there was no medical cause
are examples.

 In
the pain disorder subset of that, the predominant presentation is a focus on
pain but in which there is inadequate or insufficient medical explanation to
justify the preoccupation or complaints. The psychological factors that can be
playing a role are varied. The most common are other mental disorders, mood
disorders, anxiety disorders, PTSD, things of that type.

 In
addition, we often see, as I think we see more in Mr. Loft, alternative kind of
perceptions, if you will, or belief systems that emerge. They perceive
themselves to be more disabled than they really are. They focus on the pain
excessively, they can’t suppress the pain, they can’t move on with their lives.
They perceive themselves as invalid or disabled. They are often engaging in
behaviours to minimize the pain, they avoid activities that may trigger or
precipitate, things of that type. So they alter their life in a substantial
fashion.

Q.        These
perceptions that you’ve mentioned, on the basis of your definition, are these
conscious perceptions or unconscious perceptions?

A          No, by
definition all the somatoform illnesses, the belief, if you will, the false
beliefs are unconscious. Again, with a grain of salt because it’s hard for us
to determine unconscious from conscious, and so you do that through a variety
of kind [sic] of looking at their life, where you’re seeing things go, because
obviously some people can, in fact, consciously complain of pain that doesn’t
exist, especially in litigation cases.

 What
you look for in these cases are critical issues such as the person’s lifestyle
and functioning. As an example, people who consciously exaggerate complaints
will still generally have a full life. They’ll be able to do things that give
them pleasure and joy and complain they can’t do things they don’t want to do.
Whereas the person with an unconscious pain disorder experiences dysfunction in
virtually all domains, recreationally, work, socially, things of that type.

CROSS-EXAMINATION BY MR. MACKOFF:

Q         Thank
you. Dr. O’Shaughnessy, I might as well start with the issue of the pain
disorder. So if I understood what you just said, it is an unconscious — it is
unconscious perception — sorry. The person is unconsciously stating that they
have pain when they have no pain; is that right?

A          Basically, yes

Q         And is
a pain disorder something that a person can switch on and switch off?

A          No,
generally it’s there most of the time. Now, like anybody else with real pain,
if you’re doing pleasant activities, it will be less evident or apparent than
say work activities, you know — you know, so if you’re relaxing or enjoying
something that you can take your mind off the pain and function better, more
demanding tasks that are unpleasant, you’ll experience the pain greater, but
there should be evidence of the pain there at all times in all circumstances.

Q         and he
has — he expressed to you that owing to his injuries, he felt incapable of
doing work as a car salesman?

A          Yeah,
I wasn’t impressed — I mean, that’s what he said. I mean, I wasn’t impressed
the physical injuries were quite as much apparent there as the other
psychological ones that — you know, to be a salesman, you have to have a lot
of self-confidence, present well to the public, be able to speak, you know, you
have to be a salesman. He was disgruntled, irritable, anxious, with dysphoric
moods, and focussed on his pain. I think — I took it as the conglomeration of
those different traits would have interfered with his abilities to be a
salesman

Q         In
fact, what he told — I’m going to get to some specifics about the various
problems he had, but he — if I could just have a moment. He had aspirations in
the last two years to become a bridge watchman. Are you familiar with what that
is?

A          No, I’m not.

Q         That’s
a person that is employed on large ships, deploying lines and working on
emergency evacuation procedures. That sort of aspiration, especially when
vocalized to a number of people, is inconsistent with a person having an actual
pain disorder, isn’t it?

A          I
would assume so, I mean, with that assumption, I assume there is some lifting
to do with those lines and some physical, you know, aspects to it. I don’t know
the details, but yeah, he didn’t discuss that with me.

Q         He did tell you that he was busking, correct?

A          I do recall that. Yes.

Q         Again,
a person who on a daily basis loads up a cart with amplifier and guitar and
microphones and pedals off to a spot, sets those up, and stands for a matter of
hours playing music, that’s also inconsistent with the presentation of a pain
disorder, isn’t it?

A          Yeah,
they would — normally would not have the kind of tolerance for long period of
doing that kind of activity.

Q         And you
have to, in those circumstances, to some degree, place reliance that he’s
trying to be accurate and truthful in what he’s telling you?

A          Yeah,
I think the general principle is the opinion is only as good as the accuracy of
the information upon which it’s based, sure.

Q         And so
your — you face an additional challenge in circumstances where a person has a
demonstrated history of untruthfulness?

A          Yes.

Q         If I
were to suggest to you that for at least ten years before this subject
accident, he lost his positions either due to failing to follow the company’s
rules or misrepresenting — making misrepresentations to lenders, that, you
would agree, would be a persistent pattern of dishonesty?

A          That’s my understanding of what he was doing, yes.

Q         And
that makes your job more difficult in arriving at a diagnosis that you can feel
comfortable with?

A          It does. I mean, it makes you
want to rely more heavily on more objective data as opposed to purely
subjective information.

[67]        
I generally accept the opinions of Dr. O’Shaughnessy including his
opinion that Mr. Loft’s substance abuse disorder and other psychological
difficulties have complicated his abilities to be able to recover from the soft
tissue injuries suffered in the October 2007 accident. I also accept the
comments of Dr. O’Shaughnessy regarding the somatoform disability, at least
insofar as it is possible for a patient to experience pain when there is no
organic explanation for the pain. As well, Dr. O’Shaughnessy indicated
that a good measure of whether a person suffers from somatoform disorder is to
look at objective lifestyle data, including whether a person is performing
pleasant tasks which would be more likely to take one’s mind off of any pain as
opposed to subjective statements.

[68]        
Finally, I find it significant that Mr. Loft failed to disclose
activities to Dr. O’Shaughnessy which included the transport by bicycle
and trailer of speakers, guitars and other equipment in his busking activities,
and the application by Mr. Loft through a union to work as a bridge watchman on
tug boats. Furthermore, other evidence before this court, including the
physical altercation with Mr. Linde on March 24, 2012 who described Mr.
Loft as quick, mobile and fit and the observations of Mr. Walker who has
seen Mr. Loft run on occasion undermines the reliance which can be placed on
the information that Mr. Loft provided to Dr. O’Shaughnessy in making his assessment.
On the occasions referred to above there was no indication that Mr. Loft was
experiencing, consciously or unconsciously, any type of pain disorder.

[69]        
Under cross-examination, Dr. O’Shaughnessy agreed that if the events described
in the preceding paragraphs were true – i.e. that Mr. Loft had made significant
omissions as to his activities- and that if Mr. Loft had been terminated with
various employers due to acts of dishonesty, such a documented history of
untruthfulness would indicate a persistent pattern of dishonesty. In other
words, a persistent history of untruthfulness would make it very dangerous to
rely on the statements of Mr. Loft to support his allegations of chronic pain
when there is little if any organic evidence to support the allegations of
pain. Essentially, it would be difficult to assess whether his perceptions of
pain were unconscious manifestations of a somatoform disorder, or conscious
fabrications.

[70]        
Ultimately, through no fault of his own, I am unable to put very much
weight on Dr. O’Shaughnessy’s diagnosis of Mr. Loft’s pain disorder. Given the
grave concerns I have with Mr. Loft’s credibility and his general propensity to
conduct himself in a deceitful manner I find that Mr. Loft is conscious of his
ability to provide self-serving evidence whenever he sees an opportunity to
gain an advantage by doing so. The complaints that underlie his pain disorder
must be considered with the utmost of caution, particularly in light of the
apparent inconsistency in his pain, in particular Mr. Loft’s ability to carry
out tasks associated with more pleasurable activities such as carrying,
loading, or towing his musical equipment.

[71]        
The defence has relied upon reports and oral evidence of those doctors
referenced in the following paragraphs.

D.             
Dr. Ray Baker

[72]        
Dr. Baker was a witness for the defence. He is an experienced general
practitioner who has specialized for over 23 years in problems of substance
abuse, chronic pain and stress-related problems. In his written report dated
December 10, 2010, Dr. Baker noted at p.4:

 In the clinical
records of the many treatment programs Mr. Loft attended following the October
2007 MVA in which the causes of Mr. Loft’s recurring relapses were explored and
documented, neither the October 2, 2007 MVA or pain were listed as causes or
triggers of his relapses.

[73]        
Dr. Baker’s opinion included the following:

Mr. Loft has experienced serious social and vocational
consequences due to his substance use disorders and his psychiatric problems.
He was involved in several motor vehicle accidents and suffered at least soft
tissue injuries in the rear-end collision of October 2, 2007. I will defer to
other medical experts more qualified than myself for the opinion with respect
to whether he suffers any current symptoms due to the October 2007 MVA or
whether his current musculoskeletal symptoms are due to prior conditions.

It is my opinion that the reason
Mr. Loft has been unable to work for most of the period of time between October
2, 2007 and the present time has been due to his substance use disorders
complicated by his behavours and emotional status. It is my opinion that these
conditions were pre-existing and, although perhaps he may have become
emotionally destabilized for a brief period of time by the October 2007 MVA,
the majority of his symptoms are due to his addictive disorders and his
underlying personality and psychological problems. At the time of the MVA of
October 2, 2007 I do not believe Mr. Loft was in stable abstinent remission
from substance dependence as he had been experiencing a serious of periods of
abstinence punctuated by cocaine binges. Mr. Loft had, prior to the accident,
and has continued since the accident to struggle with emotional volatility and
disturbing psychiatric symptoms severe enough to interfere with his ability to
work. I do not believe that the MVA of October 2, 2007 had a significant effect
on the course of his addictive disorder or his psychiatric symptoms.

[74]        
In his evidence at trial, Dr. Baker stated:

Based upon his chaotic history, the relative importance of
the motor vehicle accident was minor . . . .

I got no sense [from his
interview with Mr. Loft] that in October 2007 he had entered recovery. . . he
was not in a stable abstinent remission.

[75]        
Among several questionnaire based tests administered by Dr. Baker, a
Global Assessment of Function (“GAF”) test was administered to try to see how
Mr. Loft was coping. That test is referred to in the report of Dr. Baker of
December 10, 2010 and indicates Mr. Loft achieved a GAF score of 65. Dr. Baker
stated that at a score of 60 one is able to function sufficiently to allow him
or her to be able to go work. He continued “based upon what I see he is
functioning well enough to look after himself and do many types of work”.

E.             
Dr. Richard Kendall

[76]        
Dr. Kendall was one of two orthopaedic surgeons who testified for the
defence.

[77]        
Dr. Kendall was told by Mr. Loft of problems with his left hip and left
knee. Included in the alleged problems were self-reported “claims that he has a
hip tear on the left-hand side. He also claims that his spinal cord impingement
in his low back has affected his cognitive function”. Dr. Kendall’s opinions on
complaints by Mr. Loft regarding his left knee and left hip are as follows:

In regard to his left hip, it is apparent that he had
longstanding left hip complaints prior to the accident in question with early
osteoarthritis noted. Again, there is no reference to hip pain following the
accident in question. He has gone on to develop arthritis in the left hip. This
is not a result of the accident in question.

Similar comments can be made for the left knee where he has also
developed some osteoarthritis. These arthritic changes seen in his knee, hip
and spine are more likely related to aging and perhaps age and a predisposition
to generalized osteoarthritis.

(see p.4, Tab 17, Ex. 4)

[78]        
I conclude from the above statements, the late reporting by Mr. Loft to
Dr. Rebeyka of a problem with his left hip and the evidence of Dr. Yu that
the left knee and hip complaints are not related to the motor vehicle accident
of October 2, 2007.

[79]        
Also in his report, Dr. Kendall concluded, in respect of the
degenerative disease in the cervical and lumbar spine, that “It is unlikely
that this MVA has altered the “natural history” of his pre-existing condition”.

[80]        
As to an assessment of Mr. Loft’s complaints of ongoing pain, Dr.
Kendall admitted that it “is difficult to say with any certainty whether he has
been pain-free since the accident in question”, but noted, “[t]here are no
objective findings on today’s physical examination and pain report is
inconsistent when he is distracted”.

[81]        
As Dr. Kendall is an orthopaedic surgeon and not a psychiatrist, his
comments on the effect of Mr. Loft’s psychological and substance abuse problems
are not within his realm of expertise and accordingly I am not relying on the
same in my conclusions in this case.

F.             
Dr. J.F. Schweigel

[82]        
Dr. Schweigel is the other orthopaedic surgeon called by the defence.
Dr. Schweigel has a long history in his field of practice but under
cross-examination it was revealed that in previous decisions of this court, he
has been found to be an advocate for the defence as opposed to an independent
specialist, that his evidence lacked balance and objectivity and in one case
that he tailored his evidence to the party that called him. I am not saying
that any of those criticisms are applicable to this case as it was not apparent
that Dr. Schweigel had tailored evidence or was more of an advocate than an
expert witness. Dr. Schweigel examined Mr. Loft in March of 2008, roughly six
months after the accident and had few reports or clinical records to assist him
in his opinions.

[83]        
Dr. Schweigel acknowledged that Mr. Loft had suffered soft tissue
injuries but stated:

It is difficult to know how disabled
this gentleman was, after the MVA as I had no documents of what he was like in
those first few weeks. From a physical point of view, this gentleman is
probably capable of returning back to work. From a psychological point of view
I doubt very much he could return to work. This gentleman has some emotional
problems that require therapy. He probably should have a psychological or
psychiatric assessment.

[84]        
As was the case with Dr. Kendall, Dr. Schweigel is an orthopaedic
surgeon and not a psychiatrist or psychologist and accordingly I am not relying
on him for any analysis in the latter disciplines. More than anything else, he
acknowledges the soft tissue injuries which are generally acknowledged by the
defence in any event.

IV.           
Causation and Findings regarding the Plaintiff’s Injuries

[85]        
I agree that the appropriate test to determine causation of the
plaintiff’s injuries is the “but for” test which was most recently confirmed by
the Supreme Court of Canada in Clements v. Clements, [2012] S.C.J. No.
32 at paragraph 13:

[13]      To recap, the basic
rule of recovery for negligence is that the plaintiff must establish on a
balance of probabilities that the defendant caused the plaintiff’s injury on
the “but for” test. This is a factual determination. Exceptionally, however,
courts have accepted that a plaintiff may be able to recover on the basis of
“material contribution to risk of injury”, without showing factual “but for”
causation . . .

and continued at paragraph
15:

[15]      . . .material contribution
as a substitute for the usual requirement of “but for” causation only applies
where it is impossible to say that a particular defendant’s act in fact caused
the injury. It imposes liability not because the evidence establishes that the
defendant’s act caused the injury, but because the act contributed to the risk
that injury would occur.

[86]        
It is not disputed that in the accident of October 2, 2007 Mr. Loft
suffered soft tissue injuries involving his cervical, thoracic and lumbar
spine. Mr. Loft would not have suffered the soft tissue injuries but for the
October 2, 2007 accident. For various reasons, I am of the opinion that the
soft tissue injuries did cause the plaintiff pain and suffering but I am not
satisfied that Mr. Loft has suffered to the extent he has stated in his
evidence or for as long as he claims.

[87]        
Mr. Loft has testified that at the hospital after the accident the pain
was “excruciating” and he “begged for morphine to kill the pain” but staff at
the hospital told him nothing was wrong and sent him home. I find it very
difficult to accept if a patient was describing pain so bad that he was begging
for morphine that the hospital staff would send him home without medication or
further physical investigation.

[88]        
Mr. Loft describes “knife like” pain in his back “all the time”,
“especially when standing on my left leg.” If Mr. Loft continues to suffer such
pain it is highly unlikely that he would be loading and unloading his
amplifier, guitars and other equipment and busking for several hours. It would
be equally improbable that he would have engaged in the altercation with Mr. Linde
without claiming great pain and he would not be as active as his neighbour at
the Olympic Village, Mr. Walker, described.

[89]        
I am not satisfied on a balance of probabilities that Mr. Loft suffered
injuries to his left shoulder, left knee and left hip in the accident and find
it more likely that if Mr. Loft did have injuries to those areas, those
injuries were more likely caused by the accident of December 2006. Mr. Loft’s
complaints of a sore left hip were made either before the October 2, 2007
accident or almost 9 months thereafter.

[90]        
Mr. Loft also stated that he still has sharp pain in his left knee and
left hip, and in some areas of his body the pain is getting worse, which, even
if those injuries were caused by the accident, which I have found they were
not, would be highly unusual.

[91]        
If Mr. Loft is reliant on medication, I find it is likely that such
reliance is not due to the injuries suffered in the October 2, 2007 accident
and is more likely to be due to his longstanding issues with addiction.

[92]        
Regarding his headaches, there Is little evidence other than Mr. Loft’s
own words to support a continuing and constant problem of headaches and as I
generally do not accept the evidence of Mr. Loft, I find his evidence of
headaches to be grossly exaggerated and not reliable.

[93]        
I do accept, based upon the evidence of several of the doctors that Mr.
Loft’s degenerative condition was likely exacerbated by the accident but again,
I find that he has grossly exaggerated the pain that he has suffered as a
result.

[94]        
Regarding Mr. Loft’s claims that his emotional condition, psychiatric
problems and his lapse back into addiction were caused by the motor vehicle
accident, the plaintiff has failed to prove causation on a balance of
probabilities. Dr. O’Shaughnessy stated:

It is entirely possible that the injuries and the
stress related to the above-noted problems did aggravate his pre-existing
Substance Use Disorder.

[Emphasis
added]

It may well be “possible”
that the accident could have contributed to these problems but “possibility” is
not the test. On a balance of probabilities I find it more likely that Mr. Loft
would have suffered the emotional, psychiatric and other problems including a
setback on his addiction problems even if the accident had not occurred.
Dr. O’Shaughnessy stated:

Since the accident, there has
been substantial disruption to his lifestyle. In large measure this was due to
his ongoing struggle with the substance use requiring him to spend lengthy
periods of time in residential treatment centres. While there may have been
some aggravation of his substance use post accident, it is clear that the
majority of his difficulties all existed before the accident and were unrelated
to it.

[95]        
Based on all of the evidence I find that the plaintiff had substantially
recovered from his moderate soft tissue injuries attributable to the 2007 accident
in a period between 18 months to two years after the accident.

[96]        
Having made my findings as to the injuries suffered by Mr. Loft in the
accident of October 2, 2007, I turn to the several heads of damages claimed by
Mr. Loft.

V.             
Assessment of Non-Pecuniary Damages

[97]        
Plaintiff’s counsel submits that the pre-existing degenerative problems
and the pre-existing psychological problems both made it very difficult for Mr.
Loft to deal with the pain and that as a result Mr. Loft has developed a
somatoform chronic pain disorder. I have previously stated that I agree that
the pre-existing degenerative problems experienced by Mr. Loft would have
contributed to his pain and suffering but that he has grossly exaggerated the
extent of his pain. I have also dismissed the suggestion that the injuries
suffered in the accident contributed to his psychological problems.

[98]        
Plaintiff’s counsel seeks damages for pain and suffering in a range
between $100,000 and $150,000. One of the decisions on which the plaintiff
relies for the claim for psychological stresses flowing from the physical
injuries is Scott v. Erickson 2009 BCSC 1298, which is a decision of Mr.
Justice N. Smith. At paras. 73-75 of that decision Mr. Justice Smith stated:

[73]      Although there were some stresses in the
plaintiff’s life before the accident, the evidence indicates she was able to
manage them without the difficulties she now experiences. There is no evidence
of any other mechanism or event that can be identified as a cause of the
plaintiff’s condition and Dr. Solomons agrees that there were probably
adjustment difficulties at least in the period immediately following the
accident.

[74] I find that, on a balance of probabilities, the
plaintiff’s current condition is due to a psychological response or reaction to
the accident. Put in other terms, but for the accident she would not be in the
psychological stated in which she now finds herself.

[75]      It may be that one
would normally expect a person who experienced such a reaction to have
recovered by now, but the clear fact is that, in the plaintiff’s case, he
symptoms have persisted. These symptoms have probably made her less able to
deal with other pre-existing stresses in her life and those other stresses have
likely aggravated her condition.

In that case, Mr. Justice Smith found the physical
injuries to be “minor” and the psychological issues, which were possibly the result
of a brain injury or post- traumatic stress syndrome suffered as a result of
the accident, although the evidence was not clear on the latter point. The
plaintiff in that case was found to be entitled to damages for pain and
suffering, which included psychological issues resulting from the accident, in
an amount of $85,000.

[99]        
In the case at bar, the injuries were not significant and could also be
described as “minor” but aggravated by the pre-existing degenerative problems
and so I would consider the injuries could more accurately be described as
“moderate”. On the other hand, the plaintiff’s psychological problems pre-dated
the accident and cannot be said to have worsened as a result of the collision.

[100]      The other
decisions referred to me by plaintiff’s counsel include findings of
psychological issues caused by the accident or impacted by the accident which
is not the case with Mr. Loft.

[101]     Defendant’s
counsel submits that taking the evidence as a whole, I should consider a range
of non-pecuniary damages in the range of $25,000 to $40,000. Those decisions
all deal with injuries similar to those I have found Mr. Loft to have suffered.
Of those decisions, I find that the decision of Sangha v. Chen, 2012
BCSC 749, [2012] B.C.J. No. 1022 is most closely aligned to the extent of
injuries suffered by Mr. Loft. In that case, Madam Justice Boyd found the
plaintiff had suffered moderate soft tissue injuries which had resolved in
approximately two years but also that the accident had aggravated the
plaintiff’s pre-existing chronic depression. In that case, Madam Justice Boyd
awarded non-pecuniary damages of $40,000.

[102]     Considering
all of the authorities where the plaintiff was found to have comparable
injuries and other factors such as my finding that the injuries did aggravate
the pre-existing degenerative problems of Mr. Loft and that he would have
recovered within approximately two years, I find the plaintiff entitled to
$40,000 in damages for pain and suffering.

VI.           
Special Damages

[103]     The
plaintiff claims special damages amounting to $17,220 which includes $15,040
for the cost of chiropractic treatments by Dr. Yeoman which has not been paid
by Mr. Loft. Considering Mr. Loft stated that over three years of chiropractic
treatments had been useless other than for some temporary relief, the vast
majority of this claim is not reasonable. It must have been apparent to Mr.
Loft at an early stage that the treatments were of little if any value to him.
Accordingly, I award a total of $400 for the cost of chiropractic treatments. There
was no satisfactory evidence advanced that these treatments were medically
necessary or reasonable for the treatment of Mr. Loft’s injuries.

[104]     Other
items of special damages claimed included further recent chiropractic treatment
by a Dr. Karse, massage and gym costs all totalling just over $2,000.
Considering all of the evidence relating to the claim for special damages I
award the plaintiff a further $1,500 which brings the total of special damages
to $1,900.

VII.          
Past and Future Loss of Income

[105]     I find
that Mr. Loft had left the employment of SK AutoMarket shortly before the date
of the accident. According to Mr. Shimansky, Mr. Loft had received his final
pay cheque prior to the accident. If I am incorrect in that Mr. Loft had, as of
October 2, 2007, left his employment, I find that he was about to be terminated
by Mr. Shimansky for SK AutoMarket in any event.

[106]     I also
find that there is no credibility to the evidence of Mr. Loft that as of
October 2007 he was about to enter into a business venture with Mr. Prins. The
evidence of Mr. Prins, despite being a witness for the plaintiff, significantly
contradicted that of Mr. Loft on whether or not they were about to go into business
together.

[107]     It is also
apparent to me that since the motor vehicle accident, Mr. Loft has made little
if any effort to find employment, has suffered from addiction problems and
other personality problems including bipolar disorder and that those addiction
and psychological problems have been the main cause of his inability to return
to the work force. The letter of Dr. MacEwan is supportive of this finding as
is much of the medical and psychological evidence before me.

[108]     I also
find that Mr. Loft has “burned bridges” in the field of automotive sales. His
record of short term employment over the years when he was supposedly not controlled
by his addictions and the general reputation he had achieved throughout the
industry meant that Mr. Loft was very unlikely to achieve further prolonged success
in automotive sales. Mr. Loft admitted to Dr. Rebeyka that he could not return
to the automotive industry.

[109]     Mr. Loft
has not worked since the accident, apart from “busking”, and I find that the
reasons for his inability to work are clearly attributable to his issues with
addictions, his bipolar disorder and other personality problems which are
unrelated to the accident.

[110]     I am left
to consider whether there is any merit to the claim for past loss of income
earning capacity for the 18-24 month period that I have found Mr. Loft to have been
recovering from his soft tissue injuries.

[111]     A claim
under this head of damage requires an assessment of the value of the work that
the plaintiff would have performed but for the injuries arising from the
accident, for the period up until the date of trial. The plaintiff is not
required to prove the loss of earnings on a balance of probabilities, but
rather, must establish that there is a sufficient causal connection between the
pecuniary loss claimed and the injuries caused by the accident: see Athey v.
Leonati, [1996] 3 S.C.R. 458 and Smith v. Knudsen, 2004 BCCA 613. In
assessing the loss, consideration must be given to all relevant factors arising
from the evidence, “with real and substantial possibilities to be given weight
according to the percentage chance they would have happened or will happen”: see
Juraski v. Beek, 2011 BCSC 982 at para 94 citing Rosvold v. Dunlop,
2001 BCCA 1.

[112]     In this
case I am satisfied that the plaintiff’s injuries would have prevented him from
working as a car salesman for a period of no longer than six to seven months. I
note that there is no functional work capacity assessment in evidence to assist
me in finding otherwise. In this case there are various negative contingencies
that must be accounted for. First, the plaintiff had either left or was about
to be terminated from his pre-accident employment whether or not the accident
occurred. I find that it would likely have taken him three to four weeks to
secure another similar position. Mr. Loft’s employment history shows that despite
his questionable business practices, there were dealerships that would give him
a chance; however, I also accept that his reputation was dwindling at a rapid
pace. With this in mind, and considering the evidence of Mr. Loft’s employment
history in the year and a half before the accident, it is extremely unlikely
that he would have kept this position for more than two to three months. I
estimate that he would have had a net income of approximately $7,000/month. Finally,
the evidence of Mr. Rebeyka discloses that by the summer of 2008 Mr. Loft’s
mood disorder and addiction issues were the cause of his continued
unemployment. In consideration of the foregoing, I assess Mr. Loft’s net past
loss of income earning capacity as a result of his accident injuries at $21,000.

[113]     Given my
findings, the claim for future loss of income is dismissed.

VIII.        
Future Care Costs

[114]     As I have
found Mr. Loft would have recovered from his soft tissue injuries within 18
months two years of the accident, the claim for future care costs is also
dismissed.

IX.           
Costs

[115]    
The defendants have been largely successful in all areas of the claim
and are entitled to their costs. Unless there is other information not
currently at my disposal, I award costs to the defendant on Scale B. If there
are other issues relating to costs, I will accept written submissions from
counsel by September 5, 2013.

“Jenkins J.”