IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130823

Docket: M110733

Registry:
Vancouver

Between:

Timothy David
Paller

Plaintiff

And

Gregory Steven
Regan and Teresita Racca Semilla

Defendants

Before:
The Honourable Madam Justice Fenlon

Oral Reasons for Judgment

[1]            
THE COURT: The plaintiff sues for compensation for injuries
sustained in a car accident. Liability for the accident is admitted, but the
defendants take the position that the mechanism of the accident could not have
caused the injuries claimed by the plaintiff. Causation is thus in issue, as is
the amount of damages.

BACKGROUND

[2]            
On the day of the accident, February 24, 2009, Mr. Paller was on
his way to work at the Coliseum ice rink on the grounds of the PNE. As he drove
along a narrow, two-way street, he noticed a van inching out into his lane from
a parking lot ahead and to his right. Assuming the defendant driver, Gregory
Regan, saw him approaching, he steered over the centre line slightly to give Mr. Regan’s
vehicle a wide berth. As Mr. Paller drove past, he looked back over his
right shoulder at Mr. Regan’s van. The defendant did not see Mr. Paller’s
car for some reason and accelerated into the lane, striking the rear passenger
side door and wheel well.

[3]            
After the accident, Mr. Paller continued on to the ice rink. Within
about two hours his back and neck began hurting, and by that evening the pain
was worse. The next morning he could hardly get out of bed due to neck and low
back pain and stiffness.

[4]            
Since the motor vehicle accident Mr. Paller has suffered from back
and neck pain, as well as headaches. The worst injury is to the low back, which
causes him nearly constant ongoing pain and pain that sometimes radiates to the
buttocks and down to the knees. He sometimes experiences symptoms into his arms.
Mr. Paller described the low back pain fluctuating from about 2 out of 10
to 8 out of 10 when it flares up. His neck he described as about 1 out of 10 to
7 out of 10 if it flares.

[5]            
About one year after the accident Mr. Paller began experiencing
symptoms of anxiety. He becomes panicked if he has to ride in the back of a
vehicle, has developed a fear of flying, and has to check multiple times to
ensure that doors are locked at night. He is also overly emotional and teary at
times.

[6]            
The defendants do not dispute that Mr. Paller is suffering from the
physical complaints he described at trial, but they say that the manner in
which the accident occurred could not have caused these injuries. They submit
that Mr. Paller’s problems are due to pre-existing osteoarthritis of the
spine.

CAUSATION

[7]            
I turn to the issue of causation, which is at the heart of this case. Based
on a detailed cross-examination on the motion of Mr. Paller’s body
following impact, (including a demonstration and measurements of the distance
of his shoulders and back from the back of the witness box at trial), the
defence argues that Mr. Paller’s body movement was rotational only,
resulting in torsion or twisting forces applied to Mr. Paller’s spine. The
defendants argue that with his lower back flush against the seat and his head
turned to the right looking just behind the passenger head rest at the van as
he was passing it, his left hand on the steering wheel, and his right hand down
by his leg on the gear shift, Mr. Paller’s left shoulder was only 8 to 12
inches off the seat. On impact, the defence submits, Mr. Paller’s body
rotated on its axis so that his right shoulder pressed into the seat. On this
theory, Mr. Paller’s back did not move forward. This is significant
because the medical experts relied on by the plaintiff on the issue of
causation agree that some forward flexion would be required in order to cause
an annular tear, also described as a disc herniation, which they say is the
source of Mr. Paller’s low back complaints.

[8]            
The mechanism of the accident relied on by the defence is based on this
detailed cross-examination of Mr. Paller about the motion of his body at
the time of impact. Mr. Paller did his best to model in the courtroom the
way his body moved at the time of collision, but I do not find that there was
no aspect of forward flexion when the two vehicles collided.

[9]            
First, as Mr. Paller so colourfully stated, he is not a crash test
dummy with the ability to reconstruct his body movement and recall how many
inches his left shoulder moved from the back of the car seat. He was first
asked to recall his detailed body movements at the examination for discovery in
May and July 2013, three and a half years after the accident. He had nothing to
refresh his memory and said, in redirect, that he could not recall every
movement his body went through.

[10]        
Second, the collision happened in an instant and was unexpected. It is
not reasonable to expect the plaintiff to remember precisely how his body moved
within the vehicle, including the degree of forward as opposed to lateral
movement. In my view, a defence based on this degree of specificity of movement
upon collision would require some expert opinion evidence about the forces
caused by the collision and their impact on the human body.

[11]        
Third, the damage to the two vehicles suggests that it is probable that
there was some forward movement of Mr. Paller’s body. The damage to the
defendants’ van was on the left front bumper at the left edge, which is
consistent with Mr. Regan having completed a good portion of his right
turn prior to impact with Mr. Paller, who was in the middle of the two
lanes and moving in the same direction. In short, this was not a pure T-bone
type collision at 90 degrees. Mr. Paller described Mr. Regan’s van
pushing the back end of the car, but he was also moving in the same direction
as Mr. Paller, which common sense suggests would cause a jolt forward as
well as to the side.

[12]        
Fourth, the defendants’ theory that osteoarthritis in Mr. Paller’s
spine is the cause of his ongoing pain would require the Court to find that Mr. Paller’s
pre-existing asymptomatic condition coincidently became symptomatic within two
hours of the motor vehicle accident.

[13]        
I pause here to note that it is, of course, the plaintiff’s burden to
prove on a balance of probabilities that the injuries he now has were caused by
the motor vehicle accident. I am addressing there the defendants’ alternate
explanation for how the injuries could have occurred.

[14]        
There is no dispute on the facts that prior to the accident Mr. Paller
felt well and strong. He has been an athlete most of his life, excelling in
amateur hockey and playing two levels below the NHL. Mr. Paller had
experienced various injuries from athletics, including a left shoulder
separation while playing rugby in high school (an injury which required
arthroscopic surgery in 1995); injuries to his knees (which required
arthroscopic surgery in 2000 and in April 2008); and a torn right bicep in the
fall of 2007. None of these injuries affected his ability to function at work,
perform chores at home or play hockey.

[15]        
The plaintiff must establish on a balance of probabilities that the
defendants’ negligence caused or materially contributed to an injury. The
defendants’ negligence need not be the sole cause of the injury, so long as it
is part of the cause beyond the range of de minimis. Causation need not
be determined by scientific precision: Athey v. Leonati, [1996] 3 S.C.R.
458 at paras. 13-17, and Farrant v. Laktin, 2011 BCCA 336, para. 9.

[16]        
The most basic principle of tort law is that the plaintiff must be
placed in the position he or she would have been in if not for the defendant’s
negligence, no better or worse. Tortfeasors must take their victims as they
find them, even if the plaintiff’s injuries are more severe than they would be
for a normal person. This is the “thin skull” rule. However, the defendant need
not compensate the plaintiff for any debilitating effects of a pre-existing
condition which the plaintiff would have experienced anyway, sometimes called
the “crumbling skull” rule, Athey v. Leonati, at paras. 32-35.

[17]        
While Mr. Paller experienced occasional minor low back pain over
the years, it, too, had no effect on his normal functioning. He last reported
lower back pain to his family doctor in 2006, three years before the accident. His
family doctor, Dr. Whittington, confirmed that Mr. Paller’s
occasional lower back pain was treated with a visit to the chiropractor. She
said that his flare-ups were likely due to pre-existing arthritis in his lumbar
spine. Both Dr. Whittington and Dr. Chu, a physical medicine and
rehabilitation specialist, agree that pre-existing degenerative changes to the
spine made Mr. Paller more susceptible to injury, but the defendant must
take the plaintiff as he finds him. There was no medical evidence that Mr. Paller’s
prior low back condition would have become worse or would have interfered with
his functioning in future.

[18]        
Mr. Paller’s general good health prior to the accident is evidenced
both by his regular participation in men’s recreational hockey, as well as his
demanding work schedule, which involved a full-time position as a maintenance
worker at Peace Arch Hospital, as well as casual shifts as an engineer at the
Coliseum at the time of the accident.

MEDICAL EVIDENCE

[19]        
I conclude that the medical evidence establishes that Mr. Paller’s
injuries were due to the car accident. Dr. Whittington has been Mr. Paller’s
family doctor since 2006. She is a skilled physician with a no-nonsense
attitude. Dr. Whittington has extensive experience with injuries of this
type and described Mr. Paller as stoic, who under-reported the extent of
his injuries, his pain, and the impact of those injuries on his daily
functioning. She said that she was aware of that, in part, because of the
reporting she received from Mr. Paller’s wife, who was also her patient.

[20]        
Dr. Whittington diagnosed whiplash and cervical facet injury, disc
lesions at L2, S1, ligamentous strain to the right side of his spine and SI
joints and lumbosacral disc herniations and an annular tear to the L4/L5 disc. In
addition, she reported that Mr. Paller has headaches and a panic disorder.

[21]        
As I have noted, the defendants did not seriously challenge the whiplash
and cervical facet joint injury, headaches and panic disorder. The defendants
focussed on causation of the lower back injury.

[22]        
Dr. Chu diagnosed a disc herniation or tear at the L4/L5 level and
a moderate disc protrusion. He stated in cross-examination that the disc tear
was new and more likely than not occurred after the accident. Both he and Dr. Whittington
said this was consistent with the more acute disc tear protrusion at the L4/L5
level evident on the MRI performed on July 27, 2009.

[23]        
Both Dr. Chu and Dr. Whittington were aware of the views
expressed by an orthopedic surgeon, Dr. Sweeting, who treated Mr. Paller
in 2009 at Dr. Whittington’s request. Dr. Sweeting diagnosed
musculoligamentous strain in the spine rather than a disc tear. Neither party
filed an opinion report from Dr. Sweeting in accordance with the Rules.
Accordingly, his report is before the Court only as information available to
and considered by the doctors who provided opinion evidence at trial.

[24]        
As Dr. Chu said in cross-examination, whether the cause of the pain
is musculoligamentous injury or disc lesion, the result is the same. Mr. Paller
has pain and a restriction in his lower back due to the accident.

[25]        
The only medical opinion evidence tendered by the defence is a report of
Dr. Dommisse, an orthopedic surgeon. He did not examine Mr. Paller,
but reviewed medical records, imaging, and the reports of Drs. Whittington and
Chu. Dr. Dommisse opined that it is unlikely that the accident caused a
disc tear or herniation. He stated in his written report:

As outlined above, I have not had the benefit of examining Mr. Paller.
I am therefore unable to fully comment on Dr. Chu’s report. In my opinion,
however, it is unlikely that Mr. Paller suffered a disc tear and/or disc
protrusion at L4/5 in a motor vehicle accident of this magnitude.

In my clinical experience, I have
seen approximately four lumbar disc herniations as a result of motor vehicle
accidents. These accidents were higher velocity collisions, two of which
occurred when the driver drove head on into a house.

[26]        
Dr. Dommisse assumed that the speed of Mr. Regan’s vehicle was
5 km/h, a number provided by Mr. Regan in a statement given to ICBC shortly
after the accident. In cross-examination Mr. Regan was unable to be
precise about his speed. He agreed that he was accelerating on to the street,
that his speed was moderate, and that he did not brake before the collision.

[27]        
I conclude that the opinions of Dr. Chu and Dr. Whittington
are to be preferred to that of Dr. Dommisse. As he acknowledged, Dr. Dommisse’s
opinion was restricted by lack of an examination of the plaintiff. Further, it
was largely anecdotal and was based on a fact, the speed of Mr. Regan’s
vehicle at 5 km/h, that was not proved at trial.

[28]        
Dr. Jung is a psychologist who has treated Mr. Paller on two
occasions. He provided an opinion that Mr. Paller is suffering from
Anxiety Disorder, NOS, as defined in the DSM 4, the Diagnostic and Statistical
Manual of Mental Disorders. Dr. Jung is of the opinion that the anxiety
developed as a result of a reaction to chronic injury and pain. I accept his
opinion.

[29]        
In summary on this issue, I find that Mr. Paller’s injuries,
physical and psychological, were caused by the accident on February 24, 2009.

DAMAGES

Non-Pecuniary

[30]        
I turn now to the assessment of damages. First, non-pecuniary damages. The
list of factors to be considered in an award of non-pecuniary damages was set
by the Court of Appeal 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

[31]        
All of these factors come into play in this case. Mr. Paller is 49
years old. He is, I think it is fair to say, not a complicated man. His life
centres around hockey and his family, perhaps in that order. Mr. Paller
has played hockey since he was four years old. During his teens he played
competitive hockey, obtaining a scholarship to SAIT in Alberta. He also played
in the Western Hockey League before abandoning his dream of making the NHL.

[32]        
Mr. Paller began working as an ice man at the arena at SAIT while
still a student. This led to obtaining his power engineering ticket and
eventually to the position he holds currently as the ice man responsible for
the plant and ice at the Abbotsford Recreation Centre. Mrs. Paller, who
met her husband when she was 16 years old, smilingly described herself as Mr. Paller’s
second love, hockey being his first.

[33]        
Mr. Paller has always been the bread-winner in the family, working
two jobs to cover expenses so that his wife could stay home and raise their
daughter, Lola, an arrangement important to both parents.

[34]        
Before the accident, Mr. Paller took pride in his skill as a hockey
player, his strength and fitness, and his ability to provide for his family and
to care for his home. The injuries Mr. Paller suffered in the accident
have affected all areas of his life.

[35]        
A number of men Mr. Paller played hockey with testified at trial;
some called by the plaintiff, some called by the defendants. All agreed with Mr. Paller’s
self-assessment that he no longer plays as well as he did before the accident. The
witnesses disagreed on the percentage of decline in the level of Mr. Paller’s
play, but little turns on that. It is evident that Mr. Paller was at one
time one of the best defensemen in the league. Since the accident he is
described as an average player. He plays with less intensity and plays fewer
and shorter shifts. His enjoyment of the game has been diminished.

[36]        
Mr. Paller continues to be a family man and to have a close relationship
with his wife and 8-year-old daughter, Lola, but his relationship with both of
them has been affected by his injuries. Mr. Paller broke down describing
his irritability with his daughter on days when his back is bad. He described
not being able to pick her up when she runs to him on his return home, and not
being able to play with her the way he used to, despite doing his best — for
example, sitting on a chair to play one of their favourite games of hall hockey
in the house.

[37]        
Mr. Paller is not as patient as he used to be. He has always been
easy-going, but his wife described him as worn out now and far less likely to
engage in the humour that was a big part of his personality. He does not sleep
well, often waking with pain, and walking about the house at night. Mr. Paller
can no longer do the yard work around the house and feels badly that those
chores, too, have fallen to his wife and sometimes to a friend and neighbour.

[38]        
Mr. Paller is not one to dwell on his injuries. He is a
particularly stoic individual who pushes through chronic pain and pushes
himself to keep working and playing hockey. He played hockey even in the first
two weeks after the accident while still off work, as he said, "Sometimes
forcing yourself to move and exercise, even with pain, can loosen you up and
help."  Mrs. Paller testified that she encouraged Mr. Paller to
play then, right after the accident, and to keep playing, because the weekly
games are a big part of his social life and friendships, and help improve his
mood. Dr. Whittington, too, said it was fine for Mr. Paller to play
hockey because he is sensible and will not overdo things if he starts to hurt.

[39]        
In similar vein, Mr. Paller has continued to work two jobs. About a
year and a half after the accident, he gave up the full-time work at Peace Arch
Hospital in White Rock, which involved a two-hour drive from Abbotsford, and
took a position as ice man at the Abbotsford Recreation Centre, which is only
10 minutes from home. Mr. Paller now works full-time at Abbotsford Rec Centre,
and part-time at Peace Ach, regularly working 70 to 80 hours a week.

[40]        
I accept his evidence that he pushes through the pain and tries to
spread out the physical tasks at work, for example by mopping one dressing room
and then taking a break before doing the next. I find he is becoming worn down
by the toll this is taking on him.

[41]        
The only opinion evidence of prognoses is Dr. Chu’s. He stated that
there is a poor prognosis for resolution of chronic mechanical neck and back
pain. He is of the opinion that it is unlikely to resolve, given how long it
has been present and the fact that it has plateaued for two years. I accept
that evidence and find Mr. Paller’s condition is not likely to improve and
may possibly worsen.

[42]        
Dr. Whittington recommended that the plaintiff take at least three
months off work to rehabilitate and decrease the risk of worsening. Mr. Paller
has not been able to follow that advice because of the need to continue to meet
the expenses of his family, which he can only do if he is working.

[43]        
Mr. Paller was given a painful epidural injection into his lumbar
spine, and also received prolotherapy treatment on six occasions over the
course of 2010 and 2011. This involved 25 needle injections per visit. The
injections were painful at the time, and Mr. Paller was extremely sore for
days after, at times missing work because of the treatments.

[44]        
Mr. Paller’s anxiety about not being able to continue in this way
is palpable. He and his wife have always wanted to have her at home caring for
Lola, but recently they agreed that Mrs. Paller should return to work. She
accepted a job with the City part-time in the hope of getting a full-time job
at some point in the event Mr. Paller can no longer work to meet the
family’s expenses.

[45]        
Mr. Paller also sufferers because of the anxiety disorder. He says
he would do anything just to go back to normal.

[46]        
What is an appropriate award of damages for pain and suffering and loss
of enjoyment of life in a case of this kind?  The defendants submit that $7,000
is appropriate. That figure is based on a finding that the accident caused only
a temporary ligamentous back strain. I have not accepted that underlying
premise.

[47]        
The plaintiff submits an award of $85,000 is appropriate, relying on
cases involving similar injuries and facts: Tomashewsky v. Linnebank,
2013 BCSC 814; Stull v. Cunningham, 2013 BCSC 1140; Neigel v. Weiler,
2013 BCSC 1033; and Szymanski v. Morin, 2010 BCSC 1.

[48]        
Having considered these cases, I conclude that an award of $85,000 is
appropriate, and I award the plaintiff that sum for non-pecuniary damages.

Past Wage Loss

[49]        
I turn now to past wage loss. The first question to address is whether
the plaintiff’s injuries have impaired his ability to work. I find that they
have, and continue to impair his capacity for performing work tasks. Dominic
Shew, an occupational therapist, performed a functional capacity evaluation and
gave opinion evidence at trial. Mr. Shew described the plaintiff’s work at
ARC as requiring a heavy or very heavy level of strength. He noted that over the
course of his two-day evaluation of the plaintiff, Mr. Paller demonstrated
a decreased residual capacity at the end of each day and also a greater
impairment on the second day. This is consistent with the plaintiff’s
description of his increased difficulty performing physical tasks as his work
week progresses

[50]        
In addition, the plaintiff’s supervisor, Randy Frier, testified that Mr. Paller
had been performing below the standards that he expects. He said other
employees have approached Mr. Frier to complain that Mr. Paller is
not getting the work done. Management has spoken to Mr. Frier about Mr. Paller’s
performance and has instructed Mr. Frier to push Mr. Paller harder. These
comments flowed from the most recent review of Mr. Paller’s performance at
work.

[51]        
Finally, Mr. Paller left his job at Peace Arch Hospital in October
2010 because he could no longer handle the effects of the two-hour drive
because it caused his back to seize up.

[52]        
The next question is whether the plaintiff has lost income due to the
injuries sustained in the accident. I find that he has. First, he was off work
for two weeks immediately following the accident, and has since missed work
intermittently on days when his back is bad and he is too seized up in the
morning to go to work. The plaintiff has proved the days, hours, and hourly
rates lost. I award the sum claimed of $6,475.26 in relation to his employment
with Peace Arch Hospital. Fraser Health Authority claims this under a
subrogation agreement, and therefore no tax is deducted from that sum.

[53]        
One shift was lost from work at the Coliseum, amounting to $330.40 less
25% tax, for a net figure of $240.30. As for lost income from work with the
City of Abbotsford, Mr. Paller missed nine shifts for a total gross wage
loss of $1,859.36, less 25% tax, leaving $1,394.52.

[54]        
In summary, on the claim for past wage loss, I award Mr. Paller
$7,869.87.

[55]        
Counsel for the plaintiff submits that Mr. Paller also lost the
opportunity to earn a third class engineering ticket available to him while he
worked at the larger plant at Peace Arch Hospital, an opportunity not available
at ARC. The plaintiff had not taken steps to pursue his third class ticket
while he was at Peace Arch Hospital, and there are a number of other factors
which have to fall into place before Mr. Paller could obtain such a
designation. I find that the plaintiff has failed to prove that obtaining that
level was a real and substantial possibility either up to the point of trial or
in the future.

Future Loss of Earning Capacity

[56]        
I turn now to future loss of earning capacity. Future loss of earning
capacity is a pecuniary head of damages. The plaintiff must establish a real
and substantial possibility that his injuries will result in a loss of income
in future. I conclude that the plaintiff has met that burden.

[57]        
All of Mr. Paller’s work experience has been physical in nature. He
began as an ice maintenance worker at SAIT and then repaired and maintained
airplanes and worked on location in the movie industry as a special effects
worker, setting up and moving heavy equipment. He left that work in 2007 after
his daughter was born, seeking steadier and more secure employment. That led to
the job as a general maintenance worker at Peace Arch Hospital and part-time
work as an ice facility maintenance worker at a number of ice arenas, including
the Coliseum, and ARC.

[58]        
Dr. Whittington gave evidence that Mr. Paller may not be able
to continue in his current work if the pain does not remit. Mr. Paller is
evidently doing his best to continue with this work, but I accept that he is
struggling and is becoming worn down by the effort. As set out in Morlan v.
Barrett, 2012 BCCA 66, consideration should be given to the common
experience that a person with a stable but energy draining condition will find
it more difficult to continue working as he or she grows older.

[59]        
Mr. Paller has considered real estate investment as a possibility
for future employment and has attended some lectures in this area, but he has
no experience in this type of work. In all the circumstances, I find there is a
real and substantial possibility that Mr. Paller will lose income in the
future, either because he will no longer be able to work two jobs or because he
may lose the full-time job he has because of an inability to meet its physical
demands. If that happens, Mr. Paller is less likely to find employment
given his physical limitations.

[60]        
The defendants submit that some of Mr. Paller’s issues are due to
the increased physicality of the work he took on by moving to full-time work as
an ice man at the Abbotsford Recreation Centre, i.e. moving from a less
physically demanding job at Peace Arch, a decision he made in October 2010.

[61]        
With respect, I do not accept that argument. While the job at the ice
arena is more consistently physical than the job at Peace Arch Hospital, the
latter too involved physical work and over-head work when the air and power
systems needed servicing. More importantly, I find that Mr. Paller was
unable to tolerate the two-hour drive to Peace Arch each way. The defendants’
suggestion that Mr. Paller could stop along the way to rest and stretch is
unrealistic, given both the nature of highway driving, the length of the drive,
and the need for him to report to a second job on some days.

[62]        
As set out in Perren v. Lalari, 2010 BCCA 140, loss of the
capital asset of earning capacity may be quantified on either a mathematical or
capital asset basis. Mr. Paller’s future income loss is difficult to
quantify mathematically. His annual income is $88,000. Dr. Whittington has
strongly recommended that Mr. Paller take three months off to rehabilitate
and prevent worsening of his condition. That would result in $22,000 in lost
wages. I am satisfied that Mr. Paller will do whatever is recommended by
his physicians in order to improve his health, and I award $22,000 for the lost
wages he will incur in taking time off work. I also award about one year’s annual
earnings of $80,000 as a rough assessment of the likely loss of future earning
capacity.

Special Damages

[63]        
As for out-of-pocket expenses, the defendants do not take issue with the
special damages claimed by the plaintiff. I award $1,262.64 under this head of
damages.

Cost of Future Care

[64]        
I turn now to the cost of future care. The plaintiff is entitled to
future care costs that are reasonably necessary, on the medical evidence, to
promote the mental and physical health of the plaintiff. The claims must be
both medically justified and reasonable: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (C.A.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.), at paras. 184
and 211. Dr. Chu recommends 12 sessions of psychological treatment to
address symptoms and anxiety and adjustment to dealing with ongoing pain and
limitations. The cost of each session is $200 per hour for a total of $2,400.

[65]        
Mr. Shew recommends a treatment program with a physiotherapist for
6 to 8 weeks, involving 12 to 16 sessions, at a cost of $50 to $75 per session.
Using the approximate midpoint off $65 per session for 14 sessions, the total
is $910.

[66]        
Mr. Shew recommends, as well, follow-up with a kinesiologist for 16
sessions over 8 weeks to develop an exercise program which Mr. Paller
could then continue on his own with a gym pass. I find it is highly probable
that Mr. Paller will follow such a regime, given his statement on a number
of occasions at trial that he would like to engage in an exercise program but
is concerned about injuring his back. He stated that he would like to have some
guidance about how he can exercise safely in the years ahead. I award $800,
based on $50 per session, for this future care cost.

[67]        
A gym pass is also recommended at $400 per year for one year only. I
find that to be both medically justified and reasonable, as it will permit Mr. Paller
to work with a kinesiologist and develop his ability to work out on his own and
improve his overall condition. This is a cost flowing from the injuries in this
case. Prior to the accident, Mr. Paller did not use a gym membership,
relying on hockey as his fitness regime.

[68]        
In summary, I award Mr. Paller a total of $2,400 for counselling,
$910 for physiotherapy, $800 for a kinesiologist, and $400 for a one-time gym
pass, for a total of $4,510.

SUMMARY

[69]        
In summary, the plaintiff is awarded the following damages:  Non-pecuniary
damages of $85,000; past wage loss of $7,869.87; for loss of capacity,
$102,000; for future care $4,510; and for special damages, $1,262.64. The total
damages awarded are $200,642.51.

[70]        
In terms of costs, the plaintiff has been successful and is entitled to
his costs at Scale B.

[71]        
Is there anything arising, counsel?

[SUBMISSIONS RE COSTS AND
DISBURSEMENTS]

[72]        
THE COURT:  In the absence of counsel for the defendants it would not be
fair to ask Ms. Szilagyi-Mago, a paralegal, to provide submissions. In
light of the amount of the offer, the recovery of Mr. Paller at trial, what
I know of the financial circumstances of the parties, and considering all of
the factors that must be considered in terms of an award of double costs,
including the primary question of whether the offer of $75,000 was an offer
that should have been accepted by the defendants at the time, my preliminary
view is that double costs should be awarded to the plaintiff from seven days
after the date of the offer, which was made June 28, 2013. I am going to
specify the dates so we do not have any dispute about that. June 28 was a
Friday, so it is costs incurred from July 6 on, up to and including today’s
appearance.

[73]        
The defendants are at liberty to request an oral hearing to address the
issue of costs if the parties cannot agree. My preliminary view is just that,
and is not a decision. I recognize that the defendant has a right to be heard. The
defendants therefore have liberty to set down a hearing before me at 9:00 a.m. if
the parties cannot agree on costs.

[74]        
That hearing must actually take place before me within three months. Today
is August 23, so that will be by November 23.

[75]        
MR. VILVANG:  My Lady, one last thing. The plaintiff obviously has
some financial concerns and would request that some money be provided ahead of
the final cost determination. We are at the Court’s

[76]        
THE COURT:  You are asking for a judgment to be paid prior to the
determination of costs?

[77]        
MR. VILVANG:  Yes, perhaps not the full amount of the judgment, as
depending what arises out of the costs hearing, there may be some shortfall
there; however, given the sum that was awarded, perhaps a non-pecuniary amount
or the loss of capacity amount be payable forthwith and the remainder of the
funds to be assessed upon a hearing of the costs matter.

[78]        
THE COURT:  Well, the judgment has been pronounced today; that amount is
a sum certain and in effect is due now.

[79]        
MR. VILVANG:  Okay.

[80]        
THE COURT:  Of course a cheque is not going to be issued today, but the
judgment stands as of today, even before the order is entered with the costs. So,
in my view, that should be taken up with the defendants. Certainly the costs
award has to be determined, and that may take some time. If difficulties arise,
then you may appear back before me at 9:00 a.m. I do not expect that you should
have difficulties about payment in the circumstances.

“The
Honourable Madam Justice L.A. Fenlon”