IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Paschalidis v. Stutely, |
| 2013 BCSC 1611 |
Date: 20130903
Docket: M095566
Registry:
Vancouver
Between:
Ignatios
Paschalidis
Plaintiff
And
Joseph
Marcel Andre Lalonde, Heinz Gunter Gaska,
Mark Stutely, Jill Andrea Veats, and
S-232 Holdings Ltd. doing business as Lansdowne Saturn Saab
Defendants
Before:
The Honourable Madam Justice S. Griffin
Reasons for Judgment
Counsel for the Plaintiff: | George Mouzourakis |
Counsel for the Defendants: | Fernanda Batista |
Place and Date of Trial: | Vancouver, B.C. February 12-15, |
Place and Date of Judgment: | Vancouver, B.C. September 3, 2013 |
Table of Contents
2. Work and Health Prior to
the Accident
4. Treatment, Diagnosis, and
Prognosis Post-Accident
5. Causation: What Injuries
Were Caused by the Accident?
6. Mitigation: Did The
Plaintiff Fail to Mitigate his Damages?
a.-b. Past
and Future Loss of Earning Capacity
Future Loss of Earning Capacity
Introduction
[1]
The plaintiff, Ignatios Paschalidis, was injured in a motor vehicle
accident on November 28, 2007. He was the front seat passenger in a vehicle
travelling northbound on Highway 99, just south of Lillooet, B.C., when the
driver lost control due to icy conditions. The vehicle was struck on the
passenger side by an oncoming vehicle.
[2]
The plaintiff claims against the defendants Mark Stutely, Jill Veats,
and S-232 Holdings Ltd. doing business as Lansdowne Saturn Saab (the
defendants) for damages for the injuries he suffered in the accident. The
defendants admit liability for the accident.
[3]
The claims against Joseph Lalonde and Heinz Gaska were discontinued.
[4]
The plaintiff was born in February 1964, in Greece. He was 43 years old
at the time of the accident, and 49 years old at the time of the trial.
[5]
The plaintiff worked in various jobs in restaurants and bars owned by
his family, including as a cook. Often, his work was physically demanding and
required lifting heavy objects. He claims that the injuries he suffered in the
accident have significantly limited his ability to work.
[6]
The defendants dispute that the accident caused the plaintiff to suffer
damages to the extent he claims. While the defendants admit he suffered some
injuries, they say that he had pre-existing medical problems. They also submit
that some of his health problems were made more serious by his failure to
follow medical advice.
[7]
The plaintiff seeks damages of approximately $537,000. The defendants
say that the most appropriate quantum of damages would be in the range of
$72,000 – $103,000.
[8]
I will deal with the issues raised by the evidence in the following
order:
1.
credibility;
2.
work and health prior to the accident;
3.
details of the accident;
4.
treatment, diagnosis, and prognosis post-accident;
5.
causation: what injuries were caused by the accident?
6.
mitigation: did the plaintiff fail to mitigate his damages?
7.
assessment of damages:
a.
past loss of earning capacity;
b.
future loss of earning capacity;
c.
costs of future care;
d.
non-pecuniary damages; and,
e.
special damages.
1. Credibility
[9]
The plaintiff was a poor historian, by any measure. His recollection of
past events was unreliable.
[10]
Some allowance must be made for the fact that English is not the
plaintiffs first language. However, the plaintiff always had the option of
using an interpreter at trial, but chose not to do so. It was also my
observation that it was not the choice of language that caused the plaintiff
the most difficulty.
[11]
The plaintiff from my observation is a man of few words. Open-ended
questions did not generate much evidence in response. His lawyer usually had to
lead him through his evidence, repeatedly cuing him to give more information to
assist him in his claims. The weight of his evidence has to be assessed in
light of the fact that he was so often led by questions of his counsel. This
is not a criticism of his legal counsel, but an acknowledgment that evidence is
more likely to be self-serving and selective when the plaintiff is unable to
recount his history in his own way.
[12]
The defendants argue that the plaintiff is not just a poor historian, he
is a selective historian who shaped his evidence in a self-interested and
less-than-truthful way, conveniently omitting information that might be harmful
to his case. Several examples were given of this tendency. The defendants
argue that the plaintiff is therefore not credible.
[13]
The plaintiff may be one of those people who go through life not paying
much attention to the details, but that does not necessarily mean he is
deliberately untruthful. Nevertheless, I do conclude that his memory was
unreliable.
[14]
As understanding as a trier of fact might be to the different
personalities that come before the courts, ultimately, and in fairness to both
sides to a lawsuit, a court has to base its decisions on the evidence. A court
cannot assume there is more evidence that could have been called had the
plaintiff chosen to provide it. Unfortunately, there were areas of the
plaintiffs evidence that were lacking in sufficient detail to support the
plaintiffs arguments.
[15]
Furthermore, regardless of whether or not the issue is one of
credibility or reliability, the weakness in the plaintiffs ability to describe
accurately his medical and other history undermined the whole of his evidence,
including that of his medical experts. With respect to the latter, his
examining physicians necessarily had to rely on the plaintiffs history when determining
the cause and implications of his medical conditions. He often did not tell
physicians of a prior history of medical problems relating back to a 1995 car
accident.
[16]
These observations on the plaintiffs reliability as a witness influenced
the conclusions that follow.
2. Work and Health Prior to the Accident
[17]
The plaintiff was born and grew up in a small town in Greece. After
graduating from high school, he worked for his father who had a company
drilling for water. He also served fourteen months mandatory military
service.
[18]
Around the age of 21 or 22, the plaintiffs father helped him establish
a café or restaurant business which the plaintiff also described as a
pizzeria. The plaintiff worked in this business with his two brothers and one
sister, and their mother also helped.
[19]
The plaintiff said that his mother taught him how to cook. In addition
to cooking in the restaurant/café, he also acted as a server and bartender. He
described working ten or twelve hours a day during the busy summer months and
seven days a week.
[20]
Around 1986 the plaintiff came to Canada. Six of his mothers brothers
lived in Canada and owned and operated a number of restaurants and nightclubs.
The plaintiff started working in one of the restaurants cooking and preparing
food. He described the work preparing pizza, sauces, salads, and meats,
including lamb and souvlaki. The one restaurant he was working in eventually
closed and he moved to another restaurant owned by an uncle. He described
working an average of eight hours per day, six days per week. Also, at times
he worked at his uncles nightclubs, bartending or watching the bar as a bar
manager.
[21]
In 1995, the plaintiff was in a motor vehicle accident which caused him
to suffer injuries. He advanced a claim for damages in relation to those
injuries.
[22]
The plaintiff admits that the 1995 accident caused him to take time off
work for several months, but he provided no details in his evidence.
[23]
There is a dearth of medical evidence regarding the injuries suffered in
the 1995 accident. However, the clinical records of Dr. Peter Marr,
family physician, record three visits on February 7, March 7, and April 4,
2001. These visits record that the precipitating factor for the complaints
identified on the first of those visits was the 1995 car accident, and work.
Those records document complaints of low back pain, headache, dizziness, and
numbness on the plaintiffs left anterior leg.
[24]
The plaintiff admitted in cross-examination at trial that he had
numbness in his left thigh arising out of the accident in 1995. He admitted
that when he saw Dr. Marr in 2001, he was complaining of neck pain, back
pain, dizziness and a feeling of loss of consciousness.
[25]
The plaintiff also agreed that when he saw Dr. Marr in March of 2001, he
reported having significant low back pain. He also told Dr. Marr that
physiotherapy was not providing much assistance.
[26]
The plaintiff admitted that he told Dr. Marr in 2001 that his work was
causing problems with his neck and back and that wet and cold weather made the
back pain worse. The plaintiff agreed that Dr. Marr recommended that he return
to work on part-time hours, four hours per day. The plaintiff agreed that when
he returned to work it would have been on that schedule. However he could not
recall when he returned to work although he thought it was sometime before he
had seen Dr. Marr. He could not recall whether he had returned to work
and then gone off work again due to his problems.
[27]
The plaintiff agreed that Dr. Marr recommended that he take
non-steroidal anti-inflammatory drugs such as Advil. He also recommended the
use of heat and ice.
[28]
Shortly after the plaintiffs visits to Dr. Marr ended, in May 2001, he
settled his claim in relation to the 1995 car accident.
[29]
The defendant attempted to rely on an insurance adjusters notes of
medical opinions referred to in the mediation of the plaintiffs claim in
relation to the 1995 accident. These hearsay notes were selective and not
admissible for the truth of their contents. When put to the defendant, the
defendant could not recall what his medical reports said in relation to the
1995 accident. He was unsure whether it was the opinion of Dr. E.A. Condon, a
physician who assessed the plaintiff after the 1995 accident, that he had
suffered a head injury in that accident. The plaintiff did agree that he had
headaches as a result of the 1995 accident for a long time. He also agreed
that he had bad back pain as a result of the 1995 accident.
[30]
The plaintiff agreed that he received $65,000 as a settlement in relation
to the 1995 accident.
[31]
Shortly after he received the settlement in relation to the 1995
accident, the plaintiff moved back to Greece in June or July 2001.
[32]
The plaintiff remained in Greece during the years 2001-2006. He worked
in the family restaurant business while he was there, as well as managing an
open-air night club. His family also owned a mini-market but they had
employees running it and his sister was the person more in charge of that part
of the business.
[33]
The plaintiff says that he was physically active when he was in Greece,
engaging in sports like beach racket, hiking, and soccer. He also did some spear
fishing.
[34]
The plaintiff called evidence from two friends who knew him in Greece
and Canada, to support the plaintiffs evidence as to his activity levels prior
to the 2007 accident.
[35]
One friend, Yiannis Priskos, said he left Greece to come to Canada in
1996 and in August 2007 moved to Vancouver. He did not notice any problems
with the plaintiffs health when they socialized together or when he saw him
working at the restaurant in Vancouver, pre-accident.
[36]
Another friend, Aris Georgeosopoulos, also gave evidence at trial. He
met the plaintiff in Greece in 2003 and saw him working at the family
restaurant and at the nightclub. On occasions they would play beach rackets
and go for hikes together.
[37]
Mr. Georgeosopoulos is a personal trainer. He said that in the period
2003-2005, when he and the plaintiff were friends in Greece, the plaintiff was
leaner and more muscular than he is now.
[38]
Mr. Georgeosopoulos agreed in cross-examination that the total number of
hikes that the plaintiff and he did in the two years they were friends in
Greece was perhaps four or five.
[39]
In 2006, the plaintiff and Mr. Georgeosopoulos reconnected in Canada.
They did not engage in sporting activities together. However, Mr.
Georgeosopoulos thought the plaintiff looked about the same as he had looked
when he had last seen him in Greece.
[40]
The plaintiff returned to Canada in 2006. He worked for one of his
uncles restaurants as a cook from approximately May until November 2006. He
then went to Alberta and helped out a friend in a restaurant there. The
plaintiff returned to Vancouver to work in his uncles restaurant from April to
October 2007.
[41]
The plaintiff agreed that winter months were slow in the restaurant
business, and he was often laid off and collected Employment Insurance (EI).
This is what happened in October 2007. It was during the time that the
plaintiff was laid off and collecting EI that he was in the 2007 accident.
[42]
At the time of the accident, the plaintiff was on his way to Edmonton,
Alberta, and he did not know whether he would be there for a few days or a few
months.
[43]
In filling out his application for EI benefits in 2007, the plaintiff
answered no to the question of whether he was related to any of his
employers. When cross-examined at trial, he agreed that this answer was not
true. However he said he did not recall the question and filled out the form
on a computer with the help of a friend.
[44]
I found the plaintiffs evidence less than convincing in his attempt to
distance himself from the information filled out in his EI application in
2007. This issue reflects on his credibility as it indicates a tendency on the
plaintiffs part to be sparse with the truth when it might cost him, a tendency
which the defendants argued was apparent from the vagueness of the plaintiffs
recollection of his 1995 accident and injuries and of his work history.
[45]
In summary, the plaintiff claims not to recall how long his injuries had
lasted after the 1995 accident, but he agreed when clinical records were put to
him that he was still reporting symptoms in 2001.
[46]
The evidence the plaintiff did call from a couple of friends suggesting
that he was physically active was not inconsistent with the possibility that he
could engage in occasional physical activity, but nevertheless had continuing
symptoms from the 1995 accident. In my view neither Mr. Priskos nor Mr.
Georgeosopoulos had sufficient experience observing the plaintiff in sports or
at work to support any conclusions that he was not continuing to suffer ongoing
symptoms after the 1995 accident.
[47]
Medical evidence at trial also suggested that if the plaintiff was
having continued symptoms in 2001 relating to the 1995 accident, it is likely
he would continue with having these symptoms intermittently thereafter.
[48]
There was no evidence at trial of anyone who worked with the plaintiff
in the period between the 1995 accident and the 2007 accident. Thus, there was
no witness to say whether or not the plaintiff was able to perform tasks at
work that required a lot of standing or significant lifting at a full-time
level year-round, or whether he could perform such tasks relatively
complaint-free, prior to the 2007 accident.
[49]
The evidence of the plaintiff did not persuade me that he was in robust
physical health prior to the 2007 accident. Rather, I conclude that it was
more likely than not that he had some lingering health problems related to the
1995 accident, including intermittent headaches, severe back pain, neck pain,
and numbness along his left leg.
[50]
Nevertheless, I do accept that these problems did not keep him from
working to some extent, and I accept the evidence that he was working at least
in the 2001-2007 timeframe. However, I think it likely that due to his ongoing
complaints that he did suffer from some discomfort during his work and from
time to time either cut back on his hours of work, as suggested by Dr. Marr in
2001, or simply limited his hours of work.
3. Details of the Accident
[51]
The accident occurred late at night on November 28, 2007.
[52]
The plaintiff was in the front passenger seat wearing his seatbelt. He
and his two friends, the driver Mark Stutely, and another passenger, were on
their way to Edmonton. As mentioned, Mr. Stutely lost control of the vehicle
on ice, and another vehicle smashed into them on the front passenger side.
[53]
The plaintiff was trapped in the vehicle with the front side passenger
door glass broken. His friends called for help and they waited in the cold for
the first emergency responders. The plaintiff felt his whole right side was
very sore, including his shoulder, rib, and leg. He had difficulty and pain
breathing.
[54]
The emergency responders had to use equipment to open up the plaintiffs
side of the vehicle and get him out.
[55]
The plaintiff was taken to Lillooet Hospital where he spent
approximately two nights before being released. He was released with some
prescription painkillers and returned to his home in Vancouver.
[56]
The vehicle the plaintiff was in was written-off as beyond repair.
4. Treatment, Diagnosis, and Prognosis
Post-Accident
[57]
At the time of the accident, the plaintiff did not have a regular
physician.
[58]
On December 3, 2007, he became a patient of Dr. Stephen Roberts, who has
a family practice in Vancouver, not far from where the plaintiff was living.
[59]
The plaintiff saw Dr. Roberts several times in December 2007 and then
continued to see him regularly in 2008.
[60]
Dr. Roberts testified as a witness at trial and prepared two medical
opinion reports dated August 23, 2010 and September 19, 2012, respectively.
[61]
In the course of his treatment, the plaintiff also saw Dr. Condon, a
physician at the Echelon Rehabilitation Clinic, which treats patients suffering
from musculoskeletal injuries and degenerative musculoskeletal disorders. Dr.
Condon had also seen the plaintiff after the 1995 motor vehicle accident.
Unfortunately, Dr. Condon passed away prior to the trial of the
plaintiffs claim. His opinion report dated September 19, 2008 was admitted as
evidence, subject to any concerns as to the weight to give it, given that Dr.
Condon was not available at trial for cross-examination.
[62]
In this regard, Dr. Condon made comments about the plaintiff losing
consciousness at the time of the accident and being held in Lillooet Hospital
because of concern regarding traumatic brain injury and concussion. No other
medical evidence supported that evidence and no other physician provided an
opinion that the plaintiff had suffered a concussion. Because of the early
date of his report, and the fact that the plaintiff had multiple treating
physicians and other sources of medical evidence afterwards, it would be
dangerous to give this isolated opinion by Dr. Condon any weight and I decline
to do so.
[63]
The plaintiff was also subjected to a number of diagnostic tests
including:
·
chest x-rays in November and December 2007;
·
an x-ray of his skull and right shoulder in December 2007;
·
an x-ray of his cervical spine in January 2008;
·
an ultrasound of his right shoulder in February 2008;
·
a CT scan of his head without contrast in February 2008;
·
nerve conduction studies related to his left thigh in April 2008;
·
a CMI-MRI of his right shoulder in May 2008;
·
a CT scan of his lumbar spine in January 2009;
·
an x-ray of his shoulders in August 2010; and
·
an MRI of his thoracic spine on October 28, 2011.
[64]
Dr. Roberts continued to see the plaintiff as a patient over the years.
The last visit prior to Dr. Roberts September 19, 2012 report was June 15,
2012.
[65]
The immediate injuries suffered by the plaintiff as a result of the 2007
accident were rib fractures and injuries causing right lower neck pain
extending over his right shoulder and down his right arm; right low back pain;
and numbness in his left thigh. He also began suffering headaches after the
accident.
[66]
The plaintiff was referred to a number of specialists to treat his
various symptoms. Many of these medical specialists provided opinion reports
which were admitted as evidence at trial, and testified at trial.
[67]
The physicians who prepared reports and who testified at trial were as
follows:
·
as mentioned, Dr. Stephen Roberts, the plaintiffs family
physician;
·
Dr. Siân
Spacey, a neurologist, who addressed the plaintiffs headaches and who prepared
opinion reports dated August 25, 2010 and November 9, 2012;
·
Dr. Tim Kostamo, an orthopaedic surgeon, who dealt with the
plaintiffs right shoulder and prepared an opinion report dated August 31,
2010;
·
Dr. Russell OConnor, a specialist in physical medicine and
rehabilitation, who saw the plaintiff on August 9, 2012 and prepared a report
of the same date; and
·
Dr. Thomas Zwimpfer, a neurologist, who dealt with the
plaintiffs symptoms of numbness and tingling in his left leg and prepared a
report dated November 16, 2012.
[68]
In addition, Dr. Patrick Chin, an orthopaedic surgeon, conducted a
medical legal assessment of the plaintiff and examined him on November 20,
2008, preparing a report of the same date. His report was tendered but he was
not required to testify at trial.
[69]
Also, the plaintiff was examined by Dr. Pankaj Dhawan, a specialist in
physical medicine and rehabilitation, on February 9, 2011 and Dr. Dhawan
prepared a medical report dated the same day. His report was tendered but he
was not required to testify at trial.
[70]
The medical evidence establishes that following the accident, the rib
fractures resolved within the year.
[71]
The plaintiff has reported ongoing and then intermittent back and neck
pain after the 2007 accident. His more significant complaints appear to be in
relation to headaches, shoulder pain, and numbness and tingling in his left
thigh.
[72]
At some point the plaintiff began to suffer from left shoulder pain. He
did not claim that this was caused by the accident and indeed given that it
showed up much later, the medical evidence supports the conclusion that it was
not caused by the accident. Dr. OConnor agreed that the plaintiffs left
shoulder was resolved when he saw him in the summer of 2012.
[73]
The plaintiff has received various treatments for his symptoms.
[74]
In July 2010, Dr. Spacey treated the plaintiffs headaches with Botox
therapy. This treatment was quite effective and the headaches became much more
intermittent.
[75]
It was Dr. Spaceys opinion that with Botox injections every three
months, the plaintiff should be able to indefinitely control his migraine
headaches. However, it was her opinion that it is likely he will require the
Botox treatments indefinitely.
[76]
Dr. Spacey reported that in November 2012, the plaintiff told her that
his headaches were no longer a problem as long as he got Botox treatments. The
plaintiff confirmed this in cross-examination.
[77]
It was Dr. OConnors opinion that there was a chance that the headache
symptoms would, with continued Botox injections over the next one to two years
(post Dr. Russells August 2012 report), likely improve similarly to what they
had done in the past in 2001, pre the 2007 accident. Dr. OConnor estimated a
40% chance that the headache symptoms would persist indefinitely, but it was
more likely than not they would improve to the point where they would bother the
respondent only intermittently and to a less significant extent.
[78]
As for the plaintiffs right shoulder, the medical experts agree that he
suffers from significant calcific tendinopathy and right shoulder traumatic
impingement. There is also joint arthrosis in that shoulder.
[79]
The plaintiff has undergone a number of treatments with respect to his
right shoulder, including radio-shockwave therapy, barbotage therapy and an
arthroscopic subacromial decompression, the last procedure taking place in
November 2011.
[80]
The latter surgery appears to have been largely successful.
[81]
When Dr. OConnor saw the plaintiff in August 2012 it was approximately
nine months after his right shoulder surgery. He found that the plaintiffs
shoulder had improved.
[82]
Dr. OConnor noted that with an initial round of physiotherapy after
surgery, the plaintiffs shoulder improved considerably. For this reason, Dr.
OConnor was optimistic that his shoulder could continue to improve with
further strengthening and conditioning.
[83]
Dr. OConnor concluded that the plaintiff still had some mild residual
restrictions with repetitive reaching and lifting at shoulder height or above,
and mild pain when sleeping on his right shoulder. He noted that physical
activity increased the pain mildly and heavy repetitive reaching would likely
be more difficult for the plaintiff.
[84]
The plaintiff reported different things to different medical personnel
regarding the sensation in his left leg: sometimes he described it as numbness
and occasional burning; other times he described it as a constant burning
sensation that worsened with prolonged standing or sitting.
[85]
The medical evidence also leads to the conclusion that this problem
became worse for the plaintiff over time, and corresponded with him gaining
weight and becoming more physically deconditioned. He has probably gained at
least 30 to 40 pounds since the 2007 accident. He was advised as his first
form of treatment for the left thigh problem to lose weight and to engage in a
conditioning program.
[86]
As of November 2012, one physician reported that the plaintiff weighed
235 pounds, which for his height of 5 feet 10 inches is regarded as clinically
obese. He subsequently lost about 11 pounds but it was recommended that he
lose 30 pounds.
[87]
Dr. Zwimpfer recommended that if weight loss did not improve the
plaintiffs symptoms, the next potential treatment could be surgery and decompression
of the nerve. This would not likely completely cure the problem but it was Dr.
Zwimpfers opinion that the chance of success for a positive response is likely
to be over 70%. At the time of trial, the left leg surgery was planned for the
future.
[88]
Dr. OConnor estimated that 50% was a conservative prognosis outcome for
the nerve pain, following surgical decompression, although he would defer to
Dr. Zwimpfers opinion. However, both physicians agreed that even if
surgery improves the pain, it would not likely improve the numbness in the
plaintiffs left leg.
5. Causation: What Injuries Were Caused by
the Accident?
[89]
The usual test for causation in personal injury cases is that the
plaintiff must prove that that the injury of which he complains would not have
occurred but for the defendants negligence: Athey v. Leonati, [1996] 3
S.C.R. 458 (Athey), at para. 14. The onus is on the plaintiff to
prove this on a balance of probabilities.
[90]
There is an obvious link between the test for causation and the
assessment of damages. In assessing damages for injuries caused by the
defendant, the basic principle is that the plaintiff is to be placed in the
position he would have been but for the defendants negligence (the original
position): Athey at para. 32.
[91]
Where this assessment of damages involves consideration of hypothetical
scenarios, such as what the plaintiff would have earned absent the accident and
what the plaintiff is capable of earning in the future due to the injuries
caused by the accident, the court does not require proof on a balance of
probabilities. Rather, the court assesses hypothetical events on the basis of
their relative likelihood, so long as they are based on a real and substantial
possibility and not mere speculation: Athey at para. 27.
[92]
The plaintiff is not to be put in a position better than his original position.
The defendants are not required to compensate the plaintiff for any damages he
would have suffered anyway: Blackwater v. Plint, 2005 SCC 58 (Blackwater), at para. 78. If
due to other medical conditions unrelated to the accident, the plaintiff would
have suffered some health problems even absent the accident, the defendant is
not required to compensate for those problems. This is known as the crumbling
skull rule: Athey, at para. 35; Blackwater, at para. 80.
[93]
Nonetheless, defendants must take the victims of their negligence as
they find them, and will be liable for the plaintiffs injuries even if the
injuries are unexpectedly severe owing to a pre-existing condition. This is
known as the thin skull rule: Blackwater, at para. 79; Athey at
para. 34.
[94]
This means the court must determine not only what the plaintiffs
original position would have been, but also the injured position, and it is the
difference between these two positions that is the measure of the plaintiffs
loss: Athey at para. 32.
Neck and Back Pain
[95]
The plaintiff still had severe low back pain from the 1995 accident when
he saw Dr. Marr in 2001 and some neck pain.
[96]
The plaintiff told Dr. Spacey he had continued to have low back problems
after the 1995 accident, up to the 2007 accident.
[97]
In cross-examination, Dr. OConnor agreed that if the low back pain
still existed five or six years post the 1995 accident, it is unlikely the
problem would resolve entirely and it probably would continue to be
intermittent.
[98]
The plaintiff complained of increased neck and low back pain following
the 2007 accident, and I find that these were credible complaints.
[99]
By the time of the plaintiffs assessment by Dr. OConnor in 2012, the
neck pain was mild and only intermittent, not requiring further treatment.
[100] The
plaintiff identified the low back pain as being manageable and of a lesser
magnitude to Dr. Dhawan on February 9, 2011.
[101] In short,
the neck and back pain was not as significant a problem following the accident
as the right shoulder pain and left thigh numbness.
[102] Further,
regarding the low back pain, the medical evidence suggests that the plaintiff
had a pre-existing abnormality at the L5-S1 area of his spine and degenerative
changes unrelated to the accident.
[103] It
appeared that the plaintiff began to complain more often of low back pain in
recent years. In the meantime, he had gained a considerable amount of weight
and had been mostly physically inactive since the 2007 accident.
[104] The common
medical reaction to the plaintiffs complaints of neck and back pain was that
he should lose weight and become more physically conditioned, including
engaging in a kinesiology or personal trainer directed exercise program.
[105] I find the
evidence establishes that the accident caused an aggravation of a pre-existing
but continuing back and neck pain condition and that this aggravation was minor
by early 2011.
Headaches
[106] The
plaintiff still complained of headaches when he saw Dr. Marr in 2001, which was
following the 1995 accident.
[107] It was Dr.
Spaceys opinion that while the plaintiff did not report headaches immediately
after the accident, but did so within one month, they were likely caused by the
accident. Dr. Spacey also noted that the plaintiff had some double vision
associated with the headaches.
[108] The
plaintiff did not tell Dr. Spacey that he had a history of headaches prior to the
2007 accident, and following the 1995 accident. However, when she did learn of
this history, she testified that people with a greater migraine history are
more likely to have a post-traumatic migraine.
[109] In his
evidence, Dr. OConnor gave the opinion that given the plaintiff had
musculoskeletal complaints bothering him after the 1995 accident for at least
five years, it was unlikely that the headache symptoms reported by the
plaintiff to Dr. Marr in 2001 would have dramatically improved
thereafter. He also stated that patients with a history of these types of
injuries have the risk of more flare-ups down the road.
[110] I find
that the plaintiff was vulnerable to headaches prior to the 2007 accident, but
that the accident exacerbated his headache condition.
Shoulders
[111] The
plaintiff had calcific tendinitis in his right shoulder prior to the 2007 accident
but it was asymptomatic.
[112] Dr. Chin
was of the opinion that the plaintiff had pre-existing calcific tendinitis in
his right shoulder, and acromion-clavicular (AC) joint arthrosis, as a result
of chronic repetitive strain injuries to the right shoulder. Based on the
assumption there were no prior symptoms, his shoulder was likely asymptomatic
before the accident.
[113] Dr.
OConnor explained that often something sets off the symptoms caused by
calcific tendinitis, such as a trauma, a fall or bang, throwing a ball, or a
particularly strenuous activity. It was his opinion that the accident set off
the plaintiffs right shoulder symptoms. This was consistent with the evidence
of Dr. Kostamo that a jarring injury could release some of the calcium and
cause inflammation in the shoulder. I accept this evidence and find that the
2007 accident caused the plaintiffs right shoulder injury.
[114] There was
no explanation as to what set off the calcific tendinitis in the plaintiffs
left shoulder a few years after the accident but there is no doubt that this
later became a significant problem for the plaintiff. Dr. OConnor recalled
the plaintiff telling him that both shoulders were a problem after the
accident. However, other medical doctors record the fact that the plaintiff
did not have a left shoulder problem for a least one year after the accident,
if not longer.
[115] The
medical evidence provided by physicians who knew that the left shoulder
complaints came on much later was that the left shoulder complaint was not
caused by the 2007 accident. I accept that evidence.
Left Thigh
[116] While the
plaintiff had some numbness in the areas of the left thigh earlier, as noted in
Dr. Marrs clinical records in 2001, likely attributable to the 1995 accident,
the evidence establishes that this problem worsened considerably after the
accident.
[117] The
plaintiffs evidence was that the pain and numbness he experienced in his left
thigh was more of a problem following the 2007 accident. I accept his evidence
in this regard.
[118] The
medical evidence supports the conclusion that the plaintiff likely suffered a
seatbelt injury in the 2007 accident that caused compression of his lateral
femoral cutaneous nerve of the left thigh. This was also described as meralgia
paresthetica.
[119] Unfortunately,
without full medical records regarding the plaintiffs problems with his left
thigh following the 1995 accident, it is difficult to know to what degree this
condition was exacerbated by the 2007 accident. Nevertheless, it is entirely
logical that the 2007 accident made this problem worse, given that there was a
significant impact to the passenger side of the vehicle and the plaintiff was
wearing a seatbelt at the time.
[120] The
plaintiffs complaints of left thigh numbness and burning have worsened over
time since the 2007 accident. So too has he gained weight over this time. Nevertheless,
I do not consider that the weight gain caused the problem. Rather, I conclude
on the evidence that the 2007 accident caused an exacerbation of a pre-existing
condition that the plaintiff had regarding his left thigh.
[121] However, I
consider the plaintiffs weight gain to be an issue of mitigation in that he
did not undergo the conditioning and weight loss programs recommended by his
physicians. I will take this into account when I consider mitigation.
Conclusion on Causation
[122] Coming
back to the basic principles of causation and damages assessment, the plaintiff
is entitled to claim damages in relation to the aggravation of his medical
conditions and the new injuries caused by the accident. However, he is not
entitled to be compensated for medical complaints he would have endured
regardless of the accident.
[123] It is
obvious that the plaintiffs broken ribs were caused by the accident. However,
these resolved and while I will take them into account in the assessment of
damages, they did not contribute much to the plaintiffs overall losses
relative to his other injuries.
[124] I have
found that the plaintiff had long-standing continuing symptoms of severe low
back pain, neck pain, intermittent headaches, and numbness in his left thigh prior
to and at the time of the 2007 accident. There is therefore a real and
substantial possibility that the plaintiffs original position, had the
accident not occurred, would have involved ongoing complaints of pain in these
areas.
[125] However,
the whole of the evidence persuades me that the 2007 accident caused a
worsening and aggravation of all of these pre-existing conditions, with the
most significant aggravation being to the left thigh and to his headache
condition, and less significant aggravation to his back and neck.
[126] I find
that the plaintiffs right shoulder was asymptomatic and only became
symptomatic as a result of the 2007 accident, and that this injury was caused
by the accident. I find that there is no measureable risk that he would have
suffered that right shoulder pain but for the accident.
[127] The
accident did not cause the plaintiffs left shoulder pain which occurred later,
and the plaintiff is not entitled to any compensation in respect of this injury.
The left shoulder pain was a major complaint of the plaintiffs and will be
factored in when assessing his evidence as to his inability to work
post-accident.
[128] Therefore,
the defendants are liable for damages caused by the new right shoulder injury
and by the exacerbation of the following conditions: his headaches, numbness
and burning in his left thigh, and back and neck pain.
6. Mitigation: Did The Plaintiff Fail to
Mitigate his Damages?
[129]
The defendants submit that the assessment of the plaintiffs damages
should be reduced because he failed to mitigate.
[130]
The guiding principle behind the law of mitigation is that plaintiffs in
personal injury actions have a positive duty to limit their losses. If the
defendant proves an unreasonable failure by the injured party to do so, the
plaintiffs damages will be accordingly reduced (Graham v. Rogers, 2001
BCCA 432, leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 467).
[131]
The legal test for mitigation was set out by the Court of Appeal in Chiu
v. Chiu, 2002 BCCA 618 at para. 57:
The onus is on the defendant to
prove that the plaintiff could have avoided all or a portion of his loss. In a
personal injury case in which the plaintiff has not pursued a course of medical
treatment recommended to him by doctors, the defendant must prove two things:
(1) that the plaintiff acted unreasonably in eschewing the recommended
treatment, and (2) the extent, if any, to which the plaintiff’s damages would
have been reduced had he acted reasonably. These principles are found in Janiak
v. Ippolito, [1985] 1 S.C.R. 146.
[132]
Our Court of Appeal in its decision of Gregory v. Insurance Corp. of
British Columbia, 2011 BCCA 144, described the test articulated in Chiu as
follows:
I would describe the mitigation test as a
subjective/objective test. That is whether the reasonable patient, having all
the information at hand that the plaintiff possessed, ought reasonably to have
undergone the recommended treatment. The second aspect of the test is "the
extent, if any to which the plaintiff’s damages would have been reduced"
by that treatment.
(emphasis
in original)
[133] The
defendants argue that the plaintiff failed to mitigate his damages in two ways:
a) he failed to
follow treatment recommended by Dr. Spacey for his headaches;
b) he failed to
exercise and lose weight, as recommended by multiple experts.
[134] Dr. Spacey
prescribed certain medications to address the plaintiffs headaches, and asked
him to keep track of his headaches in a diary. The plaintiff did not take the
medications but misled Dr. Spacey that he had been doing so. She only found out
he was not taking them after some considerable time had passed, when she did a
Pharmanet check to see what medications the plaintiff was on. He also did not
keep track of his headaches in a diary.
[135] The
plaintiff testified at trial that medications he was given by Dr. Spacey after
his first and second visits to her made him throw up and were no good. The
plaintiff claimed that he did tell Dr. Spacey he was not taking the
medications, but he could not recall when. His evidence that he discussed this
with her was not at all convincing. It was also not convincing that he tried each
of the medications he was prescribed, as some of the prescriptions were never
filled.
[136] I accept
Dr. Spaceys evidence that the plaintiff actively misled her as to the
medications he was taking, and did not follow her repeated advice regarding
taking prophylactic medications. I accept her evidence that she explained to
him the importance of treating the headache symptoms early.
[137] Dr. Spacey
explained at trial that if such treatments are followed early on, one can often
avoid central sensitization and the headaches becoming chronic. However, there
is a limited window in which migraine headaches may be amenable to such
therapy.
[138] The
plaintiff did not have a good reason for not taking the prescribed medications
or talking to Dr. Spacey about his reluctance to do so. He did not have any
philosophical reason not to take medication. He was quite active in taking
painkillers, namely Oxycodone.
[139] While the
plaintiffs counsel attributes language barriers as part of the reason the plaintiff
did not follow Dr. Spaceys advice, I do not consider that was the likely
reason, as the plaintiff seemed to be able to appreciate what other physicians
recommended to him over time. For example, he was able to recall Dr. Zwimpfer
explaining that the risks associated with nerve decompression surgery included
a 1% risk of infection, that the surgery would last one hour, and that the
burning sensation might go away but maybe not the numbness. This shows an
appreciation for the advice he received.
[140] I conclude
that the plaintiff was unreasonable in choosing not to follow Dr. Spaceys
advice. To put it another way, the plaintiff, acting reasonably, ought to have
followed Dr. Spaceys advice. The next question is whether or not his damages
would have been reduced had he followed her advice.
[141] Dr. Spacey
was clear in her evidence that the plaintiffs failure to take the prescribed
prophylactic medications contributed to his headaches becoming chronic. Two things
flow from this: the plaintiffs refusal to follow recommended treatment means
that he may have suffered longer with intermittent headaches in 2008 and 2009
and before the Botox treatments began in 2010; and he also may have contributed
to the need for ongoing Botox treatments, as opposed to the migraines resolving
entirely.
[142] I conclude
that the defendant has proven that the plaintiff failed to mitigate by failing
to follow Dr. Spaceys advice, and that had he done so, it would have reduced
his headache symptoms to some extent.
[143] As for
weight loss and exercise, a number of physicians, including Drs. Chin, Spacey,
OConnor, and Zwimpfer, recommended to the plaintiff that he lose weight and
begin a re-conditioning program, and were of the opinion that this could cause
his low back, leg, and shoulder symptoms to decrease.
[144] Dr. Chins
report of November 20, 2008, completed one year after the accident, contained
the advice that the plaintiff take part in a well-structured active exercise
program.
[145] Dr. Zwimpfer
agreed in cross-examination that obesity can cause symptoms of meralgia
paresthetica to worsen, while loss in weight could cause symptoms to decrease.
In his report of November 16, 2012 he recommended that the plaintiff lose 30
pounds, and stated that such weight loss may improve his symptoms.
[146] The
plaintiff said based on medical advice he did go to the gym to ride a
stationary bike but that it was very, very difficult for him because he was
in pain all over. This struck me as exaggerated, as having pain all over was
not in keeping with his injuries or the medical evidence. He also said he went
to the gym a few times only. His friend Mr. Georgeosopoulos briefly tried to
give him some exercise advice but this did not go anywhere. The plaintiff
testified that he is trying to walk more.
[147] Unfortunately,
I must conclude that the plaintiff has yet to make a serious and whole-hearted
effort to follow doctors recommendations for weight loss and conditioning. This
is despite repeated recommendations for the same over the years. I find that
his failure to do so was unreasonable, and that had he done so, it would have
helped to reduce his complaints in relation to his back, thigh and shoulder
symptoms.
[148] In
conclusion, I find that, on a balance of probabilities, had the plaintiff
followed the medical advice of Dr. Spacey, he would have suffered less intense
and frequent headache symptoms; and had he followed the medical advice to lose
weight and engage in re-conditioning he would have suffered less intense
symptoms in respect of his thigh, shoulder and back. I also conclude that his
failure to follow this medical advice was unreasonable. This failure to
mitigate must be taken into account in the assessment of damages.
7. Assessment of Damages
[149] I have
concluded that the accident did cause the plaintiff to suffer injuries. In
this case, the assessment of damages is very complicated as a number of factors
must be taken into account, keeping in mind the important principle that the defendants
are only responsible for the damages caused by the 2007 accident.
[150] In
assessing damages, I have concluded that but for the 2007 accident, there is a
real and substantial possibility that the plaintiffs original position would
have been that he would have suffered to some extent from symptoms of:
a) headaches;
b) intermittent low
back and neck pain;
c) numbness
in his left thigh; and,
d) left shoulder
pain.
[151] As for his
injured position caused by the accident, I find that the accident caused the
plaintiff to suffer significantly more severe symptoms in relation to the
headaches, and numbness in his left thigh, including a burning sensation, and
some milder exacerbation of back and neck pain. In addition, I find that the
accident caused the plaintiff to suffer right shoulder pain. It also caused
him to suffer broken ribs which healed relatively quickly.
[152] In
assessing the damages to which the plaintiff is entitled, I have also
considered the plaintiffs failure to mitigate his damages.
[153] I have
concluded that the most reasonable and fair way to take all of these factors
into account is to keep them in mind in assessing each category of damages, and
I have done so, rather than by applying percentage discounts to damages across
the board.
a.-b. Past and Future Loss of Earning Capacity
[154] The
plaintiff claims he has suffered a loss of earning capacity from the date of
the accident to trial of approximately $132,000 less 14% on account of income
tax, for a net loss of $107,000. He claims that he suffered no loss of income
in 2007 because the accident occurred late in the year when he had started to
collect EI already; that he was unable to work for most of 2008; that he was
unable to work at all in 2009; that he worked full-time in 2010 and did not
suffer a loss that year; that he was unable to work after 2010 through to
trial.
[155] As for the
future, the plaintiff claims he has either no earning capacity, or very little
residual earning capacity due to the accident, and that his damages should be
assessed in the range of $40,000 to $45,000 per year for the next 17 or 22
years plus 12% fringe benefits.
[156] This aspect
of the claim requires a review of the plaintiffs work history before and after
the accident, leading up to trial, and a consideration of what his original
capacity was for work, given his other health issues unrelated to the
accident.
[157] A
significant impediment to this assessment of damages is the lack of evidence
independent of the testimony of the plaintiff establishing his physical
capacity for work in a sustained way, before the 2007 accident. I found that
the plaintiffs own evidence was unreliable, due to its sparseness and the
plaintiffs poor memory.
Past Loss of Earning Capacity
2007
[158] The
plaintiff had always worked for his relatives businesses when he was employed
in Canada.
[159] In 2006,
the plaintiff worked for his uncles restaurant from May to November. He then
did not work from mid-November 2006 until April 2007, a gap of about five
months. The plaintiff agreed that things would slow down in the family
restaurants towards the end of the year, and he would be laid off and collect
EI.
[160] He said in
the gap in his work for his uncles restaurant in 2006-2007, he went to work
for his friend in Alberta for a few months.
[161] He said
when he was in the accident in November 2007, he had been off work for almost
one month and was on his way to Edmonton to visit friends. He had just started
to collect EI benefits.
[162] The
plaintiff was laid off employment before the accident sometime in October
2007. Although the accident occurred in late November of that year, there was
no evidence that he would have been working in November or December, but for
the accident (indeed, he was collecting EI). Thus, the plaintiff suffered no
loss of income in 2007 due to the accident.
[163] The
plaintiffs income earned in 2007 was reported to Canada Revenue Agency as
$26,684 comprised of $25,858 in employment income and $826 in EI. There was
some reference in the evidence to the plaintiff receiving tips but the evidence
was far too vague to treat this as being in excess of his reported income. Likewise
there was some evidence that he received extended health benefits but this was
too vague to affix a value to it.
2008
[164] The
plaintiff was in considerable pain recovering from his fractured ribs and other
injuries in the immediate aftermath of the accident, at the end of 2007 and
beginning of 2008.
[165] The
plaintiffs evidence is that he tried to return to work part-time in 2008,
working as a line cook at his uncles restaurant. He said he worked only for a
few months but he did not recall this exactly. His employment income in 2008
was $4,200 and he also received EI and other benefits for a total income of
$8,077 in 2008.
[166] The
plaintiff said when he returned to work in 2008, he needed help from his co-workers
to lift things. His evidence in this regard was not very spontaneous and was
led extensively by his counsel. He agreed that he had headaches, backache, and
a shoulder ache when he was working. When asked why he stopped working, he
said it was because he couldnt do it anymore.
[167] In 2008,
the plaintiff collected EI benefits until he began working in June 2008, and he
worked until November 2008. He worked the dinnertime hours, part-time, perhaps
three, four, or four and a half hours, depending on how busy the restaurant
was.
[168] Given the
plaintiffs need for ongoing medical treatment, and his rehabilitation from
serious injuries, I find that the plaintiff was unable to work as many hours in
2008 as he could in 2007, due to the injuries caused by the accident.
[169] The
defendants concede that the plaintiff lost income in 2008 due to the injuries
suffered in the accident. However, they disagree on how that should be
calculated. They suggest his income loss should be $18,400 that year; the
plaintiff argues it is better estimated at $22,000.
[170] In my
view, the best evidence of what the plaintiff might have earned in 2008 but for
the accident can be determined by looking at what he earned in 2007. His loss
of income for 2008 can be roughly assessed as the difference between what he
earned in 2007, and what he actually earned in 2008. The difference between
these two amounts more accurately corresponds with the submissions of the
defendants, especially taking into account the EI received by the plaintiff in
2008. The difference between the reported incomes for 2007 and 2008 is
$18,607. I therefore estimate the loss of income of the plaintiff in 2008, as
a result of the injuries caused by the 2007 accident, to be $18,607 gross.
2009
[171] In 2009,
the plaintiff did not earn any income. However that year he accompanied one of
his uncles to Florida for some period of time, because he and other members of
his family were investing in a business in Florida.
[172] In his
evidence the plaintiff said he was gone at most four weeks; the defendant
suggests that the plaintiff was gone longer than this given that there was a
long gap in his visits to his B.C. doctors in 2009. For example, the plaintiff
did not see any doctor for a period of approximately three months, between
January and April 2009, saw a number of doctors over a short period in April,
and then did not see any doctors until September 2009. This is to be
contrasted with his visits to doctors in 2008 and 2010, when he saw doctors
practically monthly if not more often.
[173] The
plaintiff said he went to Florida I think three times in 2009 in respect of
the investment in the family business, a nightclub business. He was living
with one of his uncles and aunts rent-free, and they were also feeding him when
he lived in Vancouver during that year.
[174] The
plaintiff was also away in Greece for approximately three weeks at a minimum in
2009.
[175] I found
the plaintiffs evidence as to how long he was in Florida or Greece in 2009 to
be unreliable and not credible. His memory as to past events was generally
unreliable, and he had no records or other markers such as credit card expenses
or flight documents on which to base his evidence of his estimated time away. Also,
he appeared to have no reason to be in Vancouver, as he was not working and he did
not appear to try to seek even part-time paid employment in 2009. He had
experience managing a family nightclub business in Greece and was not limited
to working as a chef. It is not credible that he was not providing some
services of value to the new business in Florida since he was going there
frequently.
[176] The plaintiff
admitted that while he did not earn employment income in 2009, his family did
pay him his expenses for going to Florida and an annual bonus. The bonuses
paid by his family were usually between $10,000 and $20,000 per year. He did
not explain what was meant by payment of expenses and whether this included
all living expenses because he was not otherwise working.
[177] It was
impossible to determine on the plaintiffs evidence how much money he was paid
by his family in 2009. Certainly if he went to Florida to assist the family in
their joint investment in a Florida business, and in return he received money
from his family or benefits of economic value, this should be considered as
equivalent to employment income.
[178] The burden
of proof is on the plaintiff to establish that the accident caused him a loss
of income in 2009. I find that he failed to prove this as his evidence as to
what he did that year was simply too vague. I was therefore not persuaded that
the plaintiff suffered a loss of income due to his injuries in 2009.
2010
[179] The
plaintiff does not advance a claim for loss of income in 2010. Nevertheless it
is important to look at what occurred that year when assessing his claim for
loss of earning capacity.
[180] In 2010,
the plaintiff earned more income than he had in the previous years prior to the
accident. In that year, he earned $37,487 working for the family restaurants.
[181] The
plaintiff began working at one of the newer family restaurants on Granville
Street in downtown Vancouver in February 2010. Around this time the winter
Olympics were held in Vancouver, resulting in significant numbers of people
visiting downtown Vancouver.
[182] Recalling
that typically the plaintiff was laid off in the wintertime, and indeed did not
commence work in 2007 for a family restaurant until April of that year, it is
fair to infer that February would have been the earliest he would have worked
in 2010, regardless of his injuries.
[183] When the
plaintiff returned to work in February 2010, he worked long hours. The
plaintiff worked throughout the rest of 2010 until December, not even taking a
holiday. He worked six days a week, eight hours a day, approximately.
[184] He said
that his mood at work was very angry and that he was taking considerable
painkillers to manage his pain, mostly Oxycodone although I note he was taking
these painkillers before and since.
[185] The
plaintiff testified that working the hours he did in 2010 was very painful for
him. He testified that he stopped working at the end of 2010 because I cant
do it anymore.
[186] Mr.
Priskos was one of the plaintiffs employers in 2010, as he co-owned the
Granville Street restaurant with one of the plaintiffs uncles. He described
the plaintiffs work as a chef in that kitchen, which included heavy lifting
and reaching. Mr. Priskos said that he would often have to help the plaintiff
with the lifting aspect of the job. He testified that the plaintiff often took
breaks or took off time to attend doctors appointments. The plaintiff reported
experiencing headaches.
[187] Mr.
Priskos did not know what the plaintiff was like as an employee pre-accident,
as they had never worked together. However, his evidence suggests that he
would not want to hire him again full-time, if the plaintiffs condition was
unchanged since 2010.
[188] Another
employee of the restaurant in 2010, Meaghan Brannagan, gave evidence on behalf
of the plaintiff. She was a server. She said that the plaintiff could not
lift kegs and needed help with lifting other heavy things as well, such as
stacks of dishes. She saw him exhibit behaviour that suggested he had pain in
his back and shoulders. He had a terrible angry mood. She did not know what
he was like pre-accident.
[189] The
absence of clear evidence as to the plaintiffs prior earning capacity, from
witnesses other than the plaintiff, is not a minor point, given that the 2001
clinical records of Dr. Marr suggested that the plaintiff was having
difficulties at work due to his injuries from the 1995 accident.
[190] It seemed
from Mr. Priskos and Ms. Brannagans observations that the plaintiffs main
problems in working in 2010 had to do with lifting and his main complaints had
to do with pain in his shoulders, back and also with headaches. This is
important because the medical evidence is that the shoulder and headache
problems are now largely resolved or managed. Further, these are complaints
that the plaintiff could have lessened through the use of medication or
adherence to a conditioning program, but he failed to do so. Most importantly,
the left shoulder complaint was not caused by the accident. Also, he had a headache
problem as well as intermittent back problems pre-existing the accident.
[191] It seems
unlikely, given the difference in earnings, that the plaintiff worked as many hours
pre-accident, in 2007, as he did in 2010. He worked two fewer months in 2007
than he did in 2010. It is likely that 2010 was an unusually busy year for
him, as he was working at a new restaurant during an exceptional year for
tourists.
[192] It is likely
that even absent the 2007 accident, the plaintiff still would have complained
of some pain in 2010 given the hours he was working in 2010 and given his
pre-2007 health complaints and his left shoulder problems, which were not
caused by the 2007 accident. I find that even absent the accident, there is a
strong possibility that the plaintiffs health problems that were not caused by
the accident would have plagued him working the hours he did in 2010, and
caused him discomfort and pain.
[193] I find that
the plaintiffs earnings in 2010 are not a realistic benchmark of his usual
earning capacity. I find that it was an exceptional year for him in that he
worked more hours than usual and more than he was comfortable in sustaining,
and that this would have been so regardless of the accident. I am not
persuaded that in the years following 2010 the plaintiff would have chosen to
work the hours he did in 2010, even absent the accident, given his original
health condition.
[194] In his
original position, pre-accident, I find the most realistic possibility to be
that the plaintiff would have reduced his hours of work in the years after
2010, to more closely approximate his hours of work in 2007.
[195] I
therefore find that the plaintiffs pre-accident employment earnings for 2007
to be a more accurate benchmark for assessing his original earning capacity,
absent injury caused by the accident. The plaintiff had limited employment
opportunities in Canada due to his education level and his limited English
language skills. There was nothing in the evidence to suggest there was
anything unusual about the plaintiffs work habits in 2007, unlike 2010.
[196] The
plaintiff called expert evidence from Derek Nordin, a vocational consultant.
He agreed in cross-examination that the plaintiffs employability pre-accident
was limited to unskilled work or semi-skilled work such as a cook. It was his
view that the plaintiffs 2007 earnings were comparable to the average full-year/full-time
earnings for male cooks in B.C.
[197] When
considering what earnings the plaintiff might have generated in the years 2011
to 2013, absent the 2007 accident, I find that his earnings in 2007 provide a
more realistic scenario than do his earnings in 2010.
2011-2013
[198] The
plaintiff did not work at all in 2011. However he did receive EI benefits and
a last cheque from his previous years work (perhaps vacation pay) totaling $8,355
in 2011.
[199] He also
went to Greece for perhaps a month in 2011.
[200] The
defendants concede that around the time of the plaintiffs right shoulder
surgery, which was in November 2011, he would not have been able to work, both
because of the surgery and the recovery period. However, they point out that
this was a time when he normally did not work and typically collected EI.
[201] There is
evidence that the plaintiff was suffering pain in 2011 due to injuries caused
by the 2007 accident and I find that this would have impacted his ability to
work somewhat. But the evidence does not support the conclusion that the
plaintiff could not have worked at least some hours in 2011, even if not at the
same pace as he did in 2010 or 2007.
[202] The
plaintiff introduced evidence of an occupational therapist, Jane Burns, at
trial. She conducted a physical capacity evaluation of the plaintiff in
February 2011, and produced a report dated March 3, 2011. One of the dominant
issues with the plaintiffs performance during this evaluation had to do with
his right shoulder.
[203] Ms. Burns
also recorded the plaintiff reporting his left leg feeling numb and then a
burning sensation. She felt he would be better in a job where he could move
around. However, the evidence suggested to me that the plaintiff could move
around when working in a restaurant.
[204] Ms. Burns
main recommendation, back in 2011, was that the plaintiff undergo a work
conditioning program to improve his overall strength and endurance with respect
to his low back and shoulders. He had received similar recommendations before
and he treated her recommendations in the same way as he had before: he did not
follow them.
[205] Since the
evaluation by Ms. Burns, the plaintiff has undergone successful treatment for
his right shoulder and ongoing successful treatment for his headaches.
[206] Ms. Burns
agreed in cross-examination at trial that if the plaintiffs pain in his right
shoulder was reduced to the same level as in his left shoulder, he would be
fully functional in the upper extremities. The medical evidence is that this
has occurred since her evaluation.
[207] After the
November 2011 right shoulder surgery, the defendants concede that the plaintiff
would have been in recovery for approximately the first month of 2012, but
again submit that this was normally the time when he would be collecting EI.
After that, the defendants say that the plaintiff would have been able to work
had he chosen to do so.
[208] The
plaintiff did work briefly in August 2012, for the same Granville Street
restaurant where he had worked in 2010, filling in for the chef who was on
holidays. He worked perhaps three weeks, earning $2,200. This is all of his
reported employment income for that year.
[209] Asked why
he could not work in 2012 before August, the plaintiff said his whole body was
sore and he did not have the power in his hand to do the work, such as lifting
things.
[210] The
medical evidence does not support the conclusion that the plaintiffs injuries
left him without power in his hands or left him sore all over. Since his
shoulder surgery especially, it should be expected that if he engaged in a
re-conditioning program he would recover any lost strength in his hands and
arms.
[211] Asked what
is stopping him from working now, in 2013, the plaintiff said I cant do it.
I do not accept this evidence as sufficient to support a conclusion that the
plaintiff could not earn some income.
[212] There was
no evidence of the plaintiff looking for or trying different, less onerous jobs
than as a full-time cook, such as a part-time job or a less physically
demanding full-time job; or trying to engage in a rehabilitation program; or
trying to engage in a graduated return to work program in 2012 or 2013. I am
not persuaded on the evidence that his injuries left him completely unable to
work at all.
[213] I do not
accept the plaintiffs approach to the assessment of damages for loss of
earning capacity, past and future, which is premised on the plaintiff having
virtually no residual capacity to earn income. The evidence was not sufficient
to persuade me of this premise.
[214] I am of
the view that the plaintiffs loss of earning capacity, past and future, in
this case can only be very generally assessed based on the impairment of
capital asset approach identified in Brown v. Golaiy (1985), 26 B.C.L.R.
(3d) 353 (Golaiy).
[215] I accept
that with the injuries caused by the 2007 accident, including the exacerbation
of past injuries, the plaintiff would have found it more difficult to perform
the same amount of heavy work in the kitchen that he could have done before the
accident. I do not accept that he was or is unable to work at all, just that
his ability to do so was impaired to some extent due to the injuries caused by
the 2007 accident, so that he is less valuable to himself or to an employer
than he was before the accident.
[216] Given the
plaintiffs pre-accident earnings of just under $27,000 in 2007, I consider it
fair to conclude that with the plaintiffs pre-accident health, he could have managed
to earn roughly $30,000 working to his full pre-accident capacity in each of
the years 2011, 2012, and 2013. I note that the plaintiff had already worked
for several years as a chef as of 2007 and so consider it realistic that he
would have earned only modest wage increases over time after that date.
[217] As for 2011,
I find that while the plaintiff was awaiting surgery for his right shoulder and
in pain pending that surgery, his ability to work in a kitchen was compromised
to some extent. However, had he tried to mitigate by conditioning before then,
he may have been able to work some part-time hours, perhaps one-third of what
he normally worked pre-accident. Also, there was no evidence to suggest he did
or did not have opportunities to assist the family business in some way other
than doing heavy lifting work in the kitchen that year. Taking into account
all of the circumstances of his injuries, his pre-accident health conditions and
failure to mitigate, I assess his past loss of earning capacity for 2011 to be $20,000.
[218] As for
2012 and 2013, I consider it reasonable to assume that the plaintiff was unable
to work full-time in the kitchen until he had sufficient time to recover from
the November 2011 shoulder surgery and to follow doctors recommendations to
re-condition, and so it would have been reasonable for him to be on a graduated
return to work program. One way of assessing his damages is to consider that his
full-time ability to work was reduced by one-third in 2012 and by one-fifth in 2013,
representing a part-time level of work. One-third of $30,000 (what I have roughly
assessed as his pre-accident capacity) is $10,000; one-fifth of $30,000 is $6,000.
I assess the plaintiffs past loss of earning capacity for the two years 2012
and 2013, to be $16,000 gross.
[219] The total loss
of past earning capacity I have assessed for the years 2008, 2011, and 2012 to 2013,
is therefore $18,607 plus $20,000 plus $16,000 for a total of $54,607 gross.
[220] Pursuant
to s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, a
plaintiff is entitled to recover damages only for his or her past net income
loss. This means that, in the ordinary course, the court must deduct the
amount of income tax payable from lost gross earnings: Hudniuk v. Warkentin,
2003 BCSC 62. In Lines v. W & D Logging Co. Ltd., 2009 BCCA
106, at para. 184, the Court of Appeal held that it was the intention of the
Legislature to give a discretion to the judge to determine what period or
periods are appropriate for the determination of net income loss in all of the
circumstances.
[221] The
plaintiff submits that a 14% reduction should be made with respect to past
income loss on the basis of s. 98 of the Insurance (Vehicle) Act.
Adopting that submission, 14% of $54,607 is $7,645 leaving a net loss of past
earning capacity for the years 2008 and 2011 – 2013 of $46,962.
[222] The
insurer, ICBC, paid disability benefits of $6,600 to the plaintiff. It is
agreed that these would need to be deducted from any past income loss claim.
The total damages for past loss of earning capacity is therefore $40,362.
Future Loss of Earning Capacity
[223] To obtain
an award for loss of future earning capacity, the onus is on the plaintiff to
demonstrate that the injuries sustained in the 2007 accident resulted in an
impairment of his earning capacity, as well as a real and substantial
possibility that this reduced earning capacity will result in a pecuniary
loss. Once the plaintiff has satisfied the court of these criteria, the amount
of that loss is to be determined using either an earnings or capital asset
approach (Perren v. Lalari, 2010 BCCA 140 (Perren) at
para. 32). The capital asset approach will be useful when the anticipated loss
is not easily measurable (Perren, para. 32).
[224] The court
must assess damages for loss of earning capacity considering the overall
fairness and reasonableness of the award, and taking into account all positive
and negative contingencies (Rosvold v. Dunlop, 2001 BCCA 1 at para. 11).
[225] The
defendants argued that the plaintiff received compensation for future loss of
earning capacity when he settled his claim in relation to his 1995 accident. That
has not been proven. Regardless, my approach to assessing damages is to only
award damages to compensate for injuries that were caused by, including those exacerbated
by, the 2007 accident. There is no double recovery on this approach.
[226] In
assessing past loss of earning capacity, I considered that had the plaintiff
mitigated his damages he would have taken some time to recondition in 2012 and
2013, after his right shoulder surgery. On this basis, his shoulder should
have been reconditioned by now.
[227] The
plaintiffs headaches are currently well managed by the Botox therapy.
[228] The most
severe ongoing complaint of the plaintiff by the time of trial was with respect
to his left thigh numbness and burning sensation. While some aspect of these
symptoms existed prior to 2007, the extent of this problem was made worse by
the 2007 accident.
[229] I do not
consider that the plaintiffs medical conditions caused by the accident will
impede his future earning capacity, other than the possibility his left thigh
problem will do so: his other problems have been successfully treated or
managed to the extent that I conclude in the future they will not impair his capacity
to work as he did prior to the accident.
[230] As for the
left thigh, Dr. Zwimpfer was of the opinion that if weight loss did not cause
improvement in the burning pain sensation that the plaintiff reported in his
left thigh, then the upcoming surgery would be more likely to improve the
symptoms. He estimated a surgical success rate of 70% in patients such as the
plaintiff. He was of the opinion that numbness would not be cured by surgery,
but that numbness alone would be less likely to impact the plaintiff in his
activities, including in working. He also said there was a possibility that if
surgery did not work, the plaintiffs pain would limit his ability to return to
work full-time or return to work as a chef.
[231] Any
ongoing pain and discomfort when the plaintiff works long hours and the
possibility that the numbness in his thigh will not go away will be compensated
under the heading of non-pecuniary damages.
[232] Regardless
of the ultimate outcome of the surgery, the plaintiff will need some allowance
for time in the future for recovery from his surgery in relation to his left
leg. Dr. Zwimpfer agreed that four to six weeks was a reasonable recovery
time. I award $3,000 for this recovery time, roughly just under six weeks
earnings based on an estimated salary of $30,000.
[233] Ultimately,
I conclude that the plaintiff has proven on a balance of probabilities that
there is a real and substantial possibility that the extent of the injury to
his left thigh caused by the 2007 accident could modestly impair his
income-earning capacity in the future. However, this impairment must be
weighed against the 70% possibility that the surgery will be successful, and
the plaintiff will be able to return to work full-time as a chef. Also, the
plaintiffs failure to mitigate by failing to lose weight and condition has to
be taken into account.
[234] For the
same reasons as with the assessment of past loss of earning capacity, I
consider the best approach is to assess this category of damages by considering
that the plaintiffs earning capacity is a capital asset that has been impaired
by the injuries suffered in the 2007 accident, and to consider the
possibilities that this impairment will or will not continue. He is somewhat
less marketable and somewhat less valuable as a person capable of earning
income than he used to be.
[235] Given the
real possibility of a loss of earning capacity, but only of a modest loss, and
considering all of the positive and negative factors I have already identified
(the possibility the surgery will be successful, his pre-existing health problems,
and a failure to mitigate), I assess the plaintiffs damages for loss of future
earning capacity as $30,000. The total award for loss of future earning
capacity is $33,000.
c. Costs of Future Care
[236] The test
for determining the appropriate award for cost of future care is an objective
one based on medical evidence. There must be a medical justification for
claims for cost of future care, and such claims must be reasonable: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), at paras.
198 – 199. Also, there must be evidence that the plaintiff is likely to use
the services recommended: Danielson v. Johnson, 2013 BCSC 1261, at
para. 257.
[237] The
plaintiff claims for the cost of hiring experts to assist him in
reconditioning, and in assessing and modifying his workplace to maximize his
ability to return to work. In this regard, the plaintiff relies on the
evaluation by Ms. Burns and estimates the costs will be close to $10,000.
[238] The
defendants concede that some rehabilitation program should necessarily be
undertaken by the plaintiff and can be attributed to the injuries he suffered
as a result of the 2007 accident. The defendants submit that a more reasonable
cost assessment is $4,000.
[239] It is
unlikely that the plaintiff will commit to a lengthy rehabilitation program,
given his past history, but the defendants position is a concession that he
will likely engage in a limited program. Ms. Burns recommendations were made
before the plaintiff had successful shoulder surgery.
[240] In
addition, the plaintiff seeks to recover the costs of ongoing Botox therapy for
his headaches, as administered by Dr. Spacey. He submits that the annual cost
is $2,400 and a reasonable assessment of a lifetime of treatments is $50,400.
[241] The
defendants say that had the plaintiff followed Dr. Spaceys recommendations
regarding medication, the Botox therapy would not have been needed, and the
cost of the same should be reduced by 40% to reflect failure to mitigate. I
find the defendants position too extreme.
[242] The
plaintiff seeks $20,000 in total for future care costs, including the
rehabilitation program and Botox therapy. I find this claim to be reasonable
and supported on the evidence, after taking into account all of the negative
and positive contingencies, including the possibility of recovery from his
ongoing headache condition and the plaintiffs past failure to mitigate.
[243] I
therefore assess the plaintiffs damages for the cost of future care to be
$20,000.
d. Non-Pecuniary Damages
[244] Non-pecuniary
damages are awarded to compensate for intangible losses such as pain and
suffering, loss of amenities, and loss of enjoyment of life. The court must
arrive at an award that is fair and reasonable to both parties taking into
account awards given in comparable cases, but keeping in mind that each case is
unique and will turn on its own particular facts.
[245]
An in-exhaustive list of factors to be considered in assessing damages
under this heading was set out in Stapley v. Hejslet, 2006 BCCA 34 at
para. 46:
(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of pain;
(d) disability;
(e) emotional suffering; and
(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; and
(j) the plaintiff’s stoicism (as a
factor that should not, generally speaking, penalize the plaintiff: Giang
v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).
[246] The
plaintiff submits that an award of $90,000 is reasonable; the defendants submit
a more appropriate award is $60,000. They have each referred me to a number of
authorities which I have considered, but all are of course subject to the
observation that each case turns on its own unique facts.
[247] Here I
give considerable weight to the many different types of injuries the plaintiff
suffered, his ongoing pain issues, his multiple visits to physicians and
multiple tests and surgeries over several years. No one can doubt that he has
been through a very difficult time due to the injuries sustained in or
exacerbated by the 2007 accident.
[248] Further,
when I assessed the plaintiffs loss of earning capacity, I concluded that it
was likely he could earn an income post-accident, even though he had pain and
discomfort, and so too in the future. Thus, this award of non-pecuniary
damages takes into account the fact that the plaintiffs enjoyment of work will
have been negatively impacted by the pain he has suffered due to the injuries
caused by the 2007 accident and this may continue into the future.
[249] I have
considered the significant limitations in the evidence as to the plaintiffs
pre-accident lifestyle versus his post-accident lifestyle. In my view this is
not one of those cases where the court can conclude that the plaintiffs life activities
and relationships changed dramatically after the accident.
[250] I have
also taken into account the plaintiffs failure to mitigate, and the fact that there
is a strong possibility he would have had some pain and suffering in his life
in any event due to pre-existing medical conditions which pre-dated the 2007
accident and his left shoulder problem that was not caused by the accident.
[251] I conclude
that a reasonable and fair award of non-pecuniary damages is $70,000.
e. Special Damages
[252] Injured
persons are entitled to recover the reasonable out-of-pocket expenses they
incurred as a result of an accident: Redl v. Sellin, 2013 BCSC 581 at
para. 55.
[253] The
parties agree that the plaintiff has incurred out-of-pocket expenses of
$3,728.75, which are recoverable as special damages.
[254] In
addition, the plaintiff incurred $1,500 in medical fees paid to Dr. Spacey.
The defendants argue that these ought not to be recoverable, or not recoverable
in full, due to the plaintiffs failure to mitigate which contributed to these
expenses.
[255] I consider
it appropriate to reduce the past expenses paid to Dr. Spacey by 15% for
failure to mitigate, on the basis that had the plaintiff followed Dr. Spaceys
advice, these treatments likely would have been reduced. The plaintiff is
entitled to recover the balance of $1,275 in relation to these fees. The total
awarded to the plaintiff as special damages, rounded to the nearest dollar, is
therefore $5,004.
Conclusion
[256] The
plaintiff suffered injuries caused by the 2007 accident. He is entitled to the
following damages:
Past loss of earning capacity | $40,362 |
Future loss of earning capacity | $33,000 |
Costs of future care | $20,000 |
Non-pecuniary damages | $70,000 |
Special damages | $5,004 |
TOTAL | $168,366 |
[257]
The plaintiff is also entitled to Court Ordered Interest which I expect
legal counsel to be able to work out, but if not they have liberty to apply.
[258] Normally
the plaintiff would be entitled to his costs on an ordinary scale. However, if
there are facts affecting the entitlement to costs of which I am not aware, the
parties may seek a further hearing before me.
_________________________________________
The Honourable Madam Justice Susan A. Griffin