N THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131010

Docket: M112769

Registry:
Vancouver

Between:

Laverne Charles
Peters

Plaintiff

And

Lisa Marlena
Ortner and

Enterprise
Rent-A-Car Canada Ltd.

Defendants

Before:
The Honourable Madam Justice Harris

Reasons for Judgment

Introduction

[1]            
The plaintiff, Laverne Peters, claims damages for injuries arising out
of a motor vehicle accident (the “MVA”). He seeks compensation for
non-pecuniary loss, loss due to impaired past and future earning capacity, future
care costs, and special damages, as well as costs. At the time of the MVA Mr.
Peters was 53 years of age and living in Abbotsford, British Columbia.

[2]            
Liability for the MVA is not in dispute. However, the extent of the plaintiff’s
injuries and the amount of damages is in dispute.

The MVA

[3]            
The MVA occurred on June 25, 2009. The defendant, Lisa Ortner,
rear-ended Mr. Peters’ vehicle. Ms. Ortner was driving a car she had rented from
the defendant, Enterprise Rent-a-Car Canada Ltd.

[4]            
Mr. Peters’ car was stopped at the time of the collision. Mr. Peters
was waiting to turn left at the T-intersection of Sunnyside and Old Yale Road
in the City of Abbotsford, BC. Before he could turn, the vehicle driven by Ms. Ortner,
which was travelling in the same direction as Mr. Peters, collided into the
back of Mr. Peters’ vehicle, pushing his vehicle into the intersection.
The collision caused considerable damage to the rear of Mr. Peters’
vehicle, a 1998 Volvo, and the front of the 2009 Pontiac driven by Ms. Ortner.

[5]            
Mr. Peters was wearing a lap and shoulder restraining device at the time
of the collision.

[6]            
Mr. Peters testified that immediately after impact he could feel his
vertebrae popping in sequence; his head hurt; he had neck and shoulder pain;
his lower arms were numb; his legs and feet were sore; and he felt dazed. While
he was briefly seen by an ambulance attendant at the scene of the MVA, he did
not go to the hospital. His brother drove him home. He went to work the next
day, although he took time to go to his family physician and his chiropractor.
He had a severe headache over the weekend immediately following the MVA.

Injuries to Mr. Peters

[7]            
At trial, Mr. Peters claimed the following physical injuries resulting
from the MVA:

a.     headaches,
ranging in severity and frequency;

b.      neck
pain;

c.     shoulder
pain, particularly in his right shoulder;

d.     bruising
and stiffness in his knees;

e.     numbness
and tingling in his hands; and

f.      soreness
in his chest.

[8]            
Mr. Peters acknowledged that the frequency and intensity of the
headaches has reduced significantly since the MVA. He said he initially
experienced debilitating headaches more than once a month. He described them at
a level of 10 out of 10. He said the headaches were often brought on by stress
or physical exertion. The severe headaches gradually reduced and he found a
combination of medication as well as stress management and chiropractic
adjustments helpful. However, he continued to experience headaches, which he
described at a level of 3 or 4 out of 10 on almost a daily basis, until the
summer of 2012. He said that he still has level 4 headaches once a week or
less, which are controlled by over the counter medication. He said that,
although he had previously had stress and sinus headaches for which he received
treatment, these headaches were different.

[9]            
Mr. Peters testified that the MVA caused injury to his neck. He said his
neck continues to be tight, like “a guitar string”. He said his neck pain
varies in intensity but is “never zero”. The pain flares up with physical
exertion. He, therefore, avoids heavy lifting and changes the position of his
neck and head as a means of avoiding neck pain.

[10]        
Mr. Peters also testified that the MVA caused injury to his shoulders.
He said he had pain in both shoulders following the accident, with the pain in
the left shoulder resolving itself within 18 months. He said the pain in the
right shoulder continues. He described it as feeling like having a finger nail
pressing into his shoulder, and the feeling worsens with strenuous physical
activity. He testified that he has noticed no improvement in his right shoulder
since the MVA, although he has learned to avoid activities which aggravate it.

[11]        
Mr. Peters said the stiffness in his knees and ankles resolved itself in
less than two months after the MVA.

[12]        
With regard to the soreness in his chest, Mr. Peters attributed this to
the seat belt he was wearing at the time of the collision. He said it caused no
bruising and resolved itself shortly after the MVA

[13]        
Mr. Peters also described experiencing numbness and severe tingling in
his hands, and particularly in his fingers, following the MVA. These sensations
largely resolved in about a year, although there is some numbness and tingling
in his fingers which persists. It has not affected his grip strength or use of
his hands.

[14]        
Mr. Peters testified that following the accident, he had difficulty
getting to sleep and staying asleep because of the pain in his neck and right
shoulder. He said that his habit was to sleep on his right side, which would exacerbate
the pain in his shoulder and neck. He said that he was getting less than 5
hours of sleep, and that this continued until 2011 when he received therapeutic
treatment from a psychologist, Dr. Bubber, regarding sleep routines and
relaxation techniques. At this time, he also began taking a combination of over
the counter pain medications which he found to be effective.

[15]        
In addition to the physical injuries, Mr. Peters testified to the
effects of the MVA on his work and his personal life.

[16]        
At the time of the MVA, Mr. Peters was employed as the corporate
comptroller for North West Rubber Ltd. (the “company”), where he had worked
since 2003. He had become a fully qualified certified general accountant while
employed at the company. Previously he had been employed in management and
technology related positions. Mr. Peters also had a consulting business with
his wife, which generated additional income.

[17]        
Mr. Peters testified that within two months of the MVA, he started to
experience what he described as “numeric dyslexia”. He began to make errors in
his accounting work because he could not discern the difference between
numbers. Specifically, he incorrectly entered numbers on spread sheets and had
difficulty identifying numeric errors. He first noticed this in his consulting work
for Jordair Compressors Inc. and, as a consequence, he testified that he
declined to perform certain analytical work which he had done for this company
in the past.

[18]        
He said he subsequently noticed similar errors occurring in his
accounting work for North West Rubber Ltd. As a consequence of errors he made
from time to time, he testified he had to correct and re-issue various
financial statements and reports. Although Mr. Peters was able to continue
to do his job, he became increasingly frustrated and embarrassed by the errors
he was making. He could not understand why he was making errors that he had not
made in the past. To avoid making such errors, he testified he spent
considerable time double checking his work and re-assigned some of his
accounting work to others.

[19]        
Mr. Peters also testified that, while he has always had a quick temper,
since the MVA, he has become more irritable at work, resulting in, on one
occasion, an angry “blow up” with a bank employee. He was reprimanded by the company
for this. He said that, with the help of Dr. Bubber, he has learned to
employ strategies to control his emotions at work.

[20]        
Mr. Peters said that, because of the errors he attributed to “numeric
dyslexia” and the anger issue, he felt he could not press the company for the
ownership share he believed he otherwise would have received. He was concerned
he could lose his job due to the “deficiencies” in his performance.

[21]        
Although Mr. Peters did not lose his job due to errors he had made since
the MVA, just prior to the commencement of the trial he was given notice that
his employment with the company would be coming to an end. The chief executive
officer (“CEO”) of the company, Leighton Friesen, testified that the company
decided that it required a chief financial officer (“CFO”), rather than a
comptroller, in light of the changing needs and continued growth of the
business. Mr. Friesen was not confident that Mr. Peters had the level of
financial expertise and team management skills to carry the company forward in
a period of anticipated rapid expansion. Mr. Peters agreed to continue for
a number of months to assist in the transition.

[22]        
Given his knowledge and experience, Mr. Peters testified he should be
employed as a chief financial officer earning between $140,000 and $160,000.
However, because of his “numeric dyslexia”, he now considers himself “damaged
goods”, with an earning potential he estimates as between $75,000 and $85,000.
Mr. Peters also testified that he has had to turn away consulting work as he
became “cognitively drained” after 2010. He estimates this loss due to the MVA
as between $2,500 and $4,000 a year.

[23]        
Mr. Peters is a very “handy” individual. He testified as to his
extensive involvement in home renovation projects, yard work, and vehicle
maintenance. Since the MVA, he still does this work, including heavy work such
as jack hammering, but he now has to be careful in how he does this work so as
to avoid headaches and neck pain. It generally takes him much longer to
complete the work and, on occasion, he has had to have others do work he would
have otherwise have done himself.

[24]        
Mr. Peters also testified that the injuries he sustained in the MVA
affected his leisure activities. He felt he could not do the “aggressive” water
skiing he had done before the MVA because of his concern about his neck. He,
therefore, sold the boat he owned with his brother and purchased a motorcycle.
It has a custom seat and bar raisers which allow him to ride without stressing
his neck. He said he regularly rides long distances, including a trip from
Denver to Abbotsford.

[25]        
Mr. Peters said that prior to the MVA he regularly exercised in his home
gym three times a week and would run every day. Since the MVA he testified he
has had to modify his exercise routines. He no longer uses his home gym and
walks or hikes rather than runs. He does stretching exercises recommended by
his physiotherapist.

Linda Peters

[26]        
Ms. Peters also testified to the effect of her husband’s injuries. Her
evidence corroborated Mr. Peters’ testimony about the immediate effect of the
MVA and his inability to sleep well due to his shoulder pain.

[27]        
She also testified to his complaints of headaches, fatigue, and irritability.
She stated her husband previously would get angry at things but since the MVA, that
anger has become more frequent and directed at her, which caused conflict
between them.

[28]        
Ms. Peters also gave evidence in relation to the changes which Mr. Peters
has had to make in relation to yard work and home projects. She confirmed that
Mr. Peters has had to give himself more time to do this work and that
sometimes others have to help. She testified that while he still goes walking
and hiking, he no longer water skis, which was an activity he loved.

Medical Evidence

Dr. Chan

[29]        
Dr. Chan is Mr. Peters’ family physician. Dr. Chan examined Mr. Peters
the day after the collision, at which time Mr. Peters was complaining of
soreness and pain in his right upper arm, anterior chest around the sternal
area, neck, knee and calf. Approximately one month later, on July 23, 2009, Dr. Chan
again saw Mr. Peters who then complained of a sore right shoulder and sore
neck, some left hand soreness, and some tingling and numbness in his right
hand.

[30]        
In subsequent visits to Dr. Chan during the remainder of 2009 and 2010,
Dr. Chan reported that Mr. Peters continued to complain of episodic
right shoulder pain and neck pain, as well as throbbing migraine headaches. Dr. Chan’s
examination indicated Mr. Peters had a good range of motion in the lumbar and
cervical spine. Dr. Chan prescribed muscle relaxants and migraine medication to
alleviate Mr. Peters’ shoulder and neck pain and his headaches. On May 3, 2010
Dr. Chan diagnosed a soft tissue injury with respect to the neck and upper
back. He did not recommend any restrictions on Mr. Peters’ activities at work
or outside of work and believed at that time Mr. Peters’ condition was
improving.

[31]        
However, when Dr. Chan saw Mr. Peters in 2011, Mr. Peters
still complained of right shoulder pain, tightness in his neck, some numbness
in his right lateral fingers, and tenderness in his left trapezius. Mr. Peters
reported he had difficulty sleeping and was only getting about 5 hours of sleep
per night.

[32]        
During cross-examination Dr. Chan agreed that Mr. Peters had good
range of motion in his neck and arms from the time he first examined him after
the MVA through to 2013. He also agreed that the two neurologists who
investigated Mr. Peters’ complaints of numbness and tingling could find no
neurological deficits.

Dr. Gittens

[33]        
Dr. Gittens is a neurosurgeon who examined Mr. Peters at the request of
his counsel in September of 2010. He also reviewed hospital records from July
27, 2009 to June 15, 2010; clinical records of Dr. Chan, Dr. Erickson
(chiropractor) and Dr. Singh (neurologist); extracted employment records
from the company and photographs of Mr. Peters’ Volvo. His report is dated
September 23, 2010. He was not called to give evidence at trial.

[34]        
Dr. Gittens diagnosed Mr. Peters in relation to the MVA as follows:

1. Musculoskeletal or soft tissue injury to the neck with
persistent left-sided symptoms.

2. Soft tissue injury to the shoulder girdles, left resolved
and right persistent.

3. Contusion to the chest wall, resolved.

4. Contusions and soft tissue
injury to the left knee and leg, resolved.

[35]        
With respect to the ongoing soft tissue related injury in the left side
of the neck and shoulder area, Dr. Gittens was of the opinion that “[it] could
improve over the next year or so but the longer this persists the greater the
likelihood of some ongoing chronic symptomatology.”  He said he was unable to
detect any major neurological or significant structural abnormality that would
reflect a major disability. Accordingly, he said Mr. Peters could continue with
his current occupation and with his recreational endeavours, such as walking,
cycling, swimming and some gym activities, with the exception of “aggressive
waterskiing”.

[36]        
With respect to the neurological symptoms, Dr. Gittens said the
exact cause for the neurological symptoms in Mr. Peters’ hands and fingers is
“unclear” but they are not severe and should not affect the use of his
extremities. Dr. Gittens noted that Mr. Peters reported getting
relief from stretching his fingers, which he was advised to continue to do.

[37]        
Dr. Gittens was of the opinion that Mr. Peters’ headaches “would have
been precipitated by the soft tissue injury to his cervical area”, although he noted
that it was his understanding from Mr. Peters that Mr. Peters had not had any
significant headaches in the previous month.

[38]        
Dr. Gittens referred to Mr. Peters’ concern that his memory is somewhat
impaired and that he tends to mix up numbers and at times reports incorrect
numbers or transposes digits. Dr. Gittens said he “could not demonstrate any
significant memory impairment in cursory testing”.

Dr. Vaisler

[39]        
Dr. Vaisler is an orthopedic surgeon who was called by the plaintiff’s
counsel. He examined Mr. Peters on July 9, 2010. Dr. Vaisler also reviewed
the hospital records and clinical records of Dr. Chan, Dr. Erickson, and
Dr. Singh. Dr. Vaisler’s report is dated September 3, 2010.

[40]        
Based upon his examination and review of the medical information, Dr. Vaisler
concluded that Mr. Peters “sustained a soft tissue injury to his neck, a
probable labral tear of his right shoulder and probable mild right sided carpal
tunnel syndrome as a result of the motor vehicle accident.”

[41]        
With respect to the neck pain associated with this type of injury,
Dr. Vaisler stated that it generally takes two months to two years to
settle and in the majority of cases the symptoms completely resolve. Dr. Vaisler
emphasized the importance of exercise to alleviate the neck symptoms in his
report (and in his testimony at trial):

He was continuing to complain of
significant neck pain at the time of my seeing him, in spite of undergoing a
few sessions of physiotherapy and a prolonged course of chiropractic
treatments. He needs to be reassured that although his neck may hurt with being
more active he is not doing himself harm. He should be carrying out a regular
programme of neck strengthening and postural exercises on his own and it would
be worthwhile for him to attend a repeat short course of physiotherapy to be
sure he is doing them properly. It is unlikely that further passive modalities
or treatment are going to be of benefit. He should be encouraged to be involved
in a regular physical fitness routine such as swimming, Pilates or yoga and
would be helped by obtaining an Obus Forme type back support to be used with
prolonged sitting and driving.

[42]        
In Dr. Vaisler’s opinion, with these treatment recommendations, it was
more likely than not that Mr. Peters’ neck symptoms would improve over the next
six to twelve months and it is unlikely that he was going to have any permanent
significant pain or disability – although he may occasionally experience the “non-disabling
posterior neck pain similar to what he was experiencing prior to the motor
vehicle accident.”

[43]        
With respect to Mr. Peters’ right shoulder pain, Dr. Vaisler said
his symptoms were consistent with a torn glenoid labrum, although he did not
entirely discount the possibility of a subacromial impingement. However, he
agreed on cross examination that if Mr. Peters’ had shoulder impingement it should
have been evident immediately after the MVA. Dr. Vaisler recommended an MRI
arthrogram of the right shoulder, anesthetic and steroid injections into the
shoulder bursa, and arthroscopy as means of confirming the diagnosis and
providing any treatment required.

[44]        
Dr. Vaisler pointed out that if surgery were necessary in respect of a
glenoid labral tear or subacromial impingement, there is an 85% to 95% success rate
related with this surgery in relieving shoulder symptoms. In that regard, he
noted the likelihood of Mr. Peters requiring surgery for subacromial
impingement was small.

[45]        
With respect to the sensory abnormalities in Mr. Peters’ right hand, Dr. Vaisler
said the diagnosis is “still uncertain” as he has symptoms suggestive of, but
“not diagnostic of, carpal tunnel syndrome and the physical findings are
equivocal for that diagnosis”. In his opinion “it is a little more likely than
not that [Mr. Peters] did sustain a contusion to his right palm against the
steering wheel at the time of the motor vehicle accident, resulting in some
swelling and thickening of the tissues about the carpal tunnel.”

[46]        
Dr. Vaisler made a number of recommendations to confirm the diagnosis
and provide treatment, including the possibility of surgery and avoiding heavy
labour for a 2-3 month period. In his opinion it was unlikely that Mr. Peters
will have any permanent work disability resulting from the MVA, although there
is a risk he may be permanently disabled from repetitive heavy lifting or heavy
labour if his neck or right shoulder symptoms persist.

Dr. Day

[47]        
Mr. Peters was also examined by Dr. Day at the request of counsel for
the defendant. Dr. Day is an orthopedic surgeon. He reviewed the clinical
records of Dr. Chan, Dr. Erickson, Dr. Singh, Dr. Vaisler,
Dr. Schmidt, Dr. Gittens, Dr. Bubber, the hospital records of
June 16, 2010 to July 27, 2011 and Medical Service Plan printouts. Dr. Day’s
report is dated March 5, 2013.

[48]        
Dr. Day said his physical examination of Mr. Peters revealed
discomfort on the rotation of the cervical spine to the right. He noted some
discomfort on internal rotation of the right shoulders, slight tenderness over
the right biceps tendon, and some weakness of the scapular stabilizing muscles.
There was a full range of movement of the cervical spine and full range of
motion of both shoulders.

[49]        
Dr. Day confirmed the diagnosis of soft tissue injuries to the neck,
shoulders, and lower extremities. In his opinion there is no indication for
interventional treatment. Dr. Day testified that Mr. Peters’ functioning
would improve with conditioning and strengthening of his scapular stabilizers.

[50]        
With respect to Mr. Peters’ neck pain, Dr. Day noted that there is
a history of pre-existing neck issues. He concluded that the neck pain should
respond to physical therapy, but Mr. Peters may continue to have neck issues
as he had prior to the MVA.

Dr. Bubber

[51]        
Dr. Bubber is a psychologist who provided treatment to Mr. Peters on the
recommendation of Dr. Schmidt. She saw Mr. Peters on four occasions from August
18, 2011 to November 30, 2011 in relation to his reports of irritability, pain,
sleep difficulties, and cognitive struggles.

[52]        
Dr. Bubber said she took a behavioural approach and worked with Mr. Peters
to identify triggers and develop coping strategies, including relaxation techniques,
sleep hygiene, and a review of medication with his physician.

[53]        
Dr. Bubber said Mr. Peters reported that he was employing the
recommended strategies. By the end of their sessions, Mr. Peters was
sleeping 7 hours per night and was less irritable.

[54]        
Dr. Bubber said that while she did not develop specific strategies to
assist him with his errors in his job, he had developed his own system of
checking his work to avoid errors. She testified Mr. Peters was bright
enough to create some compensatory cognitive strategies.

[55]        
As Mr. Peters’ mood, sleep, and pain were relatively stable, treatment
was ended.

Dr. Schmidt

[56]        
Dr. Schmidt is a clinical psychologist retained by the plaintiff who
conducted evaluations of Mr. Peters in 2011 and 2013. Dr. Schmidt
reviewed the records of Dr. Bubber, Dr. Chan, Dr. Erickson, Dr. Gittens,
Dr. Singh, the hospital records, the Medical Service Plan printouts, work
error samples, and the examination for discovery transcript dated March 20,
2012. Dr. Schmidt also conducted a series of tests of Mr. Peters’
cognitive, emotional, and behavioral functioning. Dr. Schmidt’s reports
are dated March 2, 2011 and February 18, 2013.

[57]        
In his 2011 report, Dr. Schmidt said he found no evidence that the
MVA had caused a traumatic brain injury, post-traumatic stress disorder, or a
generalized mood or anxiety disorder. Rather, Dr. Schmidt found Mr. Peters
shows “some emotional disruption, including generalized feelings of depression,
anxiety, and irritability” and has “fears and preoccupations regarding his
cognitive functioning”. Dr. Schmidt reported that formal cognitive testing
revealed intact functioning in most areas including “intact processing speed
and … no difficulty learning and retaining either verbal or visual information.
Although Mr. Peters did show some weaknesses in sustained attention, his
basic focussed attention was intact.

[58]        
Dr. Schmidt’s opinion was that the MVA left Mr. Peters with
physical symptoms which interfered with his ability to do his job and initially
accounted for his episodic failures of attention and/or memory. These failures
caused Mr. Peters distress and emotional disruption, which increased his
anxiety, creating a “vicious circle.”

[59]        
In his 2013 report, Dr. Schmidt confirmed that that he could not be
certain as to the cause of Mr. Peters’ cognitive problems and their
relationship to the MVA. Nevertheless he reiterated his 2011 opinion that the
episodic lapses of attention or perception were psychological in origin and
related to the MVA:

In particular, the accident left
Mr. Peters with pain and disturbed sleep. I view the sleep disturbance and pain
problems as likely accounting for his early lapses of attention. However, it is
my opinion that once the lapses started occurring they became self-generating,
being triggered by the anxiety and fears arising from them. Simply put I
believe that these episodes and his increasing awareness of them lead to
increased levels of anxiety, outside of his awareness, and this anxiety in turn
triggered more lapses.

[60]        
Dr. Schmidt also said that Mr. Peters’ episodes have not responded
to treatment and occur without Mr. Peters’ awareness. He recommended
further psychological intervention although, because intervention had not been
successful, he questioned whether it would be effective.

[61]        
In cross-examination, Dr. Schmidt agreed that he based his conclusions
regarding Mr. Peters’ lapses of attention on what Mr. Peters’ had told him. Dr. Schmidt
also agreed Mr. Peters’ emotional functioning on MMPI testing was within the
normal range. He confirmed that Mr. Peters was very bright individual who would
have the ability to compensate for any errors he was making at work.

Dr. Erickson

[62]        
Dr. Erickson is a chiropractor who treated Mr. Peters both before
and after the MVA. His report is dated November 20, 2011. There is no evidence
that Dr. Erickson reviewed the reports of the medical specialists referred to
above.

[63]        
Dr. Erickson first saw Mr. Peters in 2001 for neck pain and
headaches. Dr. Erickson provided chiropractic treatment to Mr. Peters
on a regular basis for a period of 8 years prior to the MVA for “mild soreness
or irritation”. Following the MVA, Dr. Erickson provided chiropractic
upper cervical adjustments.

[64]        
He diagnosed Mr. Peters with cervical whiplash, chiropractic
atlas-cervical-occiput subluxation, spinal postural decompensation, cervical
strain-sprain, anteriorlisthesis of cervical 2 over 3, and tearing of the
interdiscal structures of cervical 2-3. Under cross-examination Dr. Erickson
agreed that virtually 100% of his patients have chiropractic
altlas-cervical-occiput subluxation.

[65]        
Dr. Erickson described Mr. Peters’ reports of ongoing symptoms
including headaches, right shoulder pain, and neck pain, resulting in
irritability and difficulties sleeping and concentrating. Dr. Erickson was
of the opinion that Mr. Peters’ headaches have been a major contributor to
his problems. Dr. Erickson noted that the headaches have reduced in
severity from intense to low grade.

[66]        
Dr. Erickson recommended continued adjustments for several years. He
also recommended that Mr. Peters’ right shoulder and sleep difficulties be
referred to medical specialists for treatment and medication. His prognosis for
Mr. Peters was very guarded, although under cross-examination he admitted
that Mr. Peters was “getting better”.

Daniel Boss

[67]        
Mr. Boss is a physiotherapist. He saw Mr. Peters once on January 21,
2011 and again on April 29, 2013.

[68]        
On examination, Mr. Boss found restrictions in Mr. Peters’
range of motion in his neck and shoulder. He recommended that Mr. Peters
use a resistance exercise band daily to strengthen between his shoulders.

[69]        
Upon examination two years later, Mr. Boss said that there continued to
be restrictions in Mr. Peters’ upper neck and shoulder, with the C1-2
vertebrae being hyper mobile.

[70]        
On cross-examination, Mr. Boss said that while he would normally
schedule a series of physiotherapy appointments to determine if the patient is
improving and doing the exercises properly, he did not do so in this case out
of respect for Dr. Erickson who prefers that no other therapists provide
treatment while he is working on the patient.

The Parties Positions

[71]        
The plaintiff claims that the MVA substantially affected his
professional and personal life. In addition to the physical injuries he
suffered as a result of the MVA, he claims that he has experienced collateral
effects including headaches, anxiety and irritability, and “numeric dyslexia”.
He contends that he is now “damaged goods”, “less capable” and “less
marketable” than he was before the MVA. While he continued to work after the
MVA, he contends that he did not receive the increases in compensation he would
otherwise have received and, now that his position with his current employer is
coming to an end, he will not be able to attain a position as a chief financial
officer, with the higher salary paid for such positions.

[72]        
The defendants agree that the plaintiff suffered injury as a result of
the MVA. However, the defendants dispute the extent of the damages claimed. In
particular, the defendants submit that the plaintiff’s claim for past and
future loss of income should not be accepted – his episodic “failures of
attention and/or memory” are simply normal human failings and his emotional
outbursts are reflective of a long standing personality frailty. The defendants
also submit that the plaintiff has failed to mitigate his losses by not
following the advice of his physicians regarding an active exercise program
directed to strengthening his shoulder and neck.

Credibility and Reliability of Evidence

[73]        
The factors to be considered when assessing credibility were summarized
by Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff’d
2012 BCCA 296, as follows:

Credibility involves an
assessment of the trustworthiness of a witness’ testimony based upon the
veracity or sincerity of a witness and the accuracy of the evidence that the
witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452,
50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of
his memory, the ability to resist the influence of interest to modify his
recollection, whether the witness’ evidence harmonizes with independent
evidence that has been accepted, whether the witness changes his testimony
during direct and cross-examination, whether the witness’ testimony seems
unreasonable, impossible, or unlikely, whether a witness has a motive to lie,
and the demeanour of a witness generally (Wallace v. Davis, [1926] 31
O.W.N. 202 (Ont.H.C.); Farnya v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.)
[Farnya]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128
(S.C.C.)). Ultimately, the validity of the evidence depends on whether the
evidence is consistent with the probabilities affecting the case as a whole and
shown to be in existence at the time (Farnya at para. 356).

[74]        
In this case, the defendants say that the plaintiff was generally honest
and attempting to do his best in giving evidence but that, occasionally, his
self-interest interfered with the reliability of his evidence.

[75]        
I accept that the plaintiff was generally truthful and was trying to
accurately recall experiences over a period of years. On the whole, I found his
evidence to be forthright, consistent, and believable.

Causation

[76]        
The plaintiff must show on a balance of probabilities that the defendants’
negligence caused or materially contributed to his 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 minimus. As McLachlin, C.J.C. stated in
Blackwater v. Plint, 2005 SCC 58 at para. 78:

Even though there may be several
tortious and non-tortious causes of injury, so long as the defendant’s act is a
cause of the plaintiff’s damage, the defendant is full liable for that damage.
The rules of damages then consider what the original position of the plaintiff
would have been. The governing principle is that the defendant need not put the
plaintiff in a better position than his original position and should not compensate
the plaintiff for any damages he would have suffered anyway.

[77]        
The primary test for causation asks: but for the defendant’s negligence,
would the plaintiff have suffered the injury? The “but for” test recognizes
that compensation for negligent conduct should only be made where a substantial
connection between the injury and the defendant’s conduct is present: Resurfice
Corp v. Hanke, 2007 SCC 7 at paras. 21-23.

[78]        
At the end of the day the plaintiff is entitled to be placed in the
position he or she would have been if not for the defendant’s negligence, no
better or worse. The tortfeasor must take his or her victim as he or she finds
them, even if the plaintiff’s injuries are more severe than they would be for a
“normal” person. However, the defendant need not compensate the plaintiff for
any debilitating effects of a pre-existing condition which the plaintiff would
have experienced anyway: Athey v. Leonati, [1996] 3 S.C.R. 458 at paras.
32-35.

[79]        
Applying these principles to this case, I must determine whether the MVA
caused the plaintiff’s injuries and, if they did, whether there were
pre-existing conditions which would have detrimentally affected the plaintiff
in the future, regardless of the defendants’ negligence.

1. Neck Pain

[80]        
Mr. Peters had experienced neck pain prior to the MVA and had received
chiropractic treatment over a number of years, both to alleviate the pain and
as a preventative measure.

[81]        
Despite this pre-existing condition, there is no dispute on the medical
evidence that Mr. Peters sustained a soft issue injury to his neck as a
result of the MVA. I accept that the soft tissue injury caused significant pain
and discomfort for Mr. Peters in the months immediately following the MVA.
In particular, the neck pain contributed to his inability to sleep and
irritability.

[82]        
Although the intensity of the neck pain gradually diminished over time
since the MVA, I accept Mr. Peters’ evidence that he continues to
experience some tightness in his neck, which he has learned to avoid but not
eliminate by exercising care in how he positions his neck when engaged in
activities requiring physical exertion.

2. Shoulder Pain

[83]        
The medical evidence also supports a finding that Mr. Peters
suffered soft tissue injury to his shoulders as a result of the MVA. Although
there is no definitive diagnosis with respect to Mr. Peters’ continued
complaints of pain in the right shoulder, Dr. Vaisler’s opinion is that it
is likely due to a torn glenoid labrum. I accept that Mr. Peters continues
to experience a persistent pain in his right shoulder. It is not disabling pain
and Mr. Peters has learned to avoid activities which aggravate it.

3. Headaches

[84]        
Mr. Peters acknowledges that he had headaches prior to the MVA.
Nevertheless, his account of severe headaches immediately following the MVA and
decreasing in intensity over time is supported in the reports of the medical
professionals and his spouse. I find that the MVA caused an increase in the
frequency and intensity of his headaches and that by 2012 they had diminished to
their pre-injury level.

4. Impaired Mood

[85]        
I accept the evidence of Mr. Peters and his spouse that the pain
associated with his neck and shoulder injury caused Mr. Peters to be
irritable and emotional for the period immediately following the MVA.

[86]        
However, I do not accept the defendants’ contention that there is a
causal connection between the defendants’ negligence and Mr. Peters having
conflicts at work. Mr. Peters admitted to having a quick temper and his
immediate superior at the company, Mr. Friesen, testified that he had
spoken to Mr. Peters about his need to improve the manner in which he deals
with people before the MVA. This is reflected in the performance evaluations
over the years. As counsel for the defendants noted, the incident in which Mr.
Peters “blew up” at a bank employee occurred 3 years after the MVA, at a time
when his pain had largely subsided.

5. Impaired Sleep

[87]        
I accept the evidence of Mr. Peters and his spouse that his sleep
was disrupted for a significant period due to the neck and shoulder pain
associated with the MVA. On the basis of the evidence of Dr. Bubber and
Mr. Peters, I find that this situation resolved by the end of his sessions with
her in 2011.

6. Numbness and Tingling in Hands

[88]        
The medical evidence of Dr. Vaisler suggests that the numbness and
tingling in Mr. Peters’ hands may have resulted from his gripping the
steering wheel at the time of the MVA. While I accept the medical evidence
supports this condition is a result of the MVA, I find the injury to be relatively
minor and note that Mr. Peters reports he can alleviate the symptoms by
opening and closing his hands.

7. Soreness in Chest and Bruising/Stiffness in Knees

[89]        
The evidence supports the seat belt caused minor soreness in the area of
his chest and bruising and stiffness in his knees which was resolved within a
few weeks of the MVA.

8. Psychological Injury

[90]        
The most contentious issue of causation is with respect to Mr. Peters’
claim of “numeric dyslexia”. Before considering this claim, I believe it is important
to observe it was not asserted that Mr. Peters was diagnosed with a form
of dyslexia, as that condition is normally understood and defined by
psychologists or medical professionals. Rather it was Mr. Peters’ own
characterization of his condition based upon the type of mistakes he was making
in his accounting work.

[91]        
It is also important to observe there was no psychological/medical
evidence of any brain injury, concussion or major psychological disorder caused
by the MVA. Further, Dr. Schmidt confirmed that Mr. Peters did not
suffer from post-traumatic stress disorder or a generalized mood or anxiety
disorder and that, based upon the psychological tests conducted, Mr. Peters’
cognitive functioning remained intact.

[92]        
The issue remains whether the defendants’ negligence caused some form of
injury affecting Mr. Peters’ ability to function in his work and daily life.

[93]        
Counsel for the defendants contend that the examples of “numeric
dyslexia” which Mr. Peters provided are few in comparison to the large number
of financial transactions for which he was responsible. Additionally, he notes
that Mr. Peters was not criticized by his superiors for such errors.
Counsel contends that, in any event, the type of errors Mr. Peters made
were the type of errors we all make from time to time.

[94]        
I agree with counsel for the defendants’ that it may not be uncommon to
make errors of this type, however, I accept Mr. Peters’ evidence that he
genuinely believed he was making errors he had not made before. In that regard,
Mr. Peters presented himself in court as an intelligent man who holds
himself to a high standard and prides himself for his accounting skills and
facility with numeric computation. I believe Mr. Peters felt he was making
more errors than he had before the MVA and this caused him considerable distress,
to the point that it undermined his confidence in his abilities. Even if the
number of errors was relatively small when viewed objectively, he was unable to
determine why he was making mistakes and unable to easily identify the
mistakes.

[95]        
I accept the opinion of Dr. Schmidt that it is more probable than
not that the origin of Mr. Peters’ failures of attention or perception are
psychological in nature and caused by the sleep disturbance and pain problems
he experienced as a result of the MVA, and that once the lapses started
occurring they became “self-generating”, being triggered by the anxiety and
fears arising from them. Applying the “but for” test, I conclude that but for
the MVA, Mr. Peters would not have experienced the heightened anxiety and
loss of confidence about his capacity to perform his work as a comptroller.

[96]        
That said, I do not accept the plaintiff’s contention that the
consequence of this psychological condition is so severe that Mr. Peters
is now “damaged goods”. In that regard, it is significant that Mr. Peters
continued to function as the company’s comptroller for four years after the
MVA. In the evaluations conducted since the MVA, he was not criticized by the
CEO for the type of errors he identified. Indeed, Mr. Friesen did not criticize
Mr. Peters’ financial reporting or accounting.

Damages

Non-Pecuniary Damages

[97]        
Non-pecuniary damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life, and loss of amenities. The compensation
awarded should be fair to all parties, and fairness is measured against awards
made in comparable cases.

[98]        
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined
the factors to be considered when assessing non-pecuniary damages at para. 46:

The inexhaustive list of common factors cited in Boyd
[v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary
damages includes:

(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;

I would add the following factors, although they may arguably
be subsumed in the above list:

(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 BCCA
54).

[99]        
I note that the assessment of non-pecuniary damages is necessarily
influenced by the individual plaintiff’s personal experiences in dealing with
his or her injuries and their consequences, and the plaintiff’s ability to
articulate those experiences: Dilello v. Montgomery, 2005 BCCA 56 at
para. 25.

[100]    
The correct approach to assessing injuries which depend on subjective
reports of pain was discussed in Price v. Kostryba (1982), 70 B.C.L.R.
397 (S.C.) by McEachern C.J.S.C., as he then was (recently quoted with approval
in Edmondson v. Payer, 2012 BCCA 114 at para. 2). In referring to an
earlier decision at paras. 5-7, he said:

In Butler v. Blaylock, [1981] B.C.J. No. 31, decided
7th October 1981, Vancouver No. B781505, I referred to counsel’s argument that
a defendant is often at the mercy of a plaintiff in actions for damages for
personal injuries because complaints of pain cannot easily be disproved. I then
said:

I am not stating any new principle when I say that the court
should be exceedingly careful when there is little or no objective evidence of
continuing injury and when complaints of pain persist for long periods
extending beyond the normal or usual recovery.

An injured person is entitled to
be fully and properly compensated for any injury or disability caused by a
wrongdoer. But no one can expect his fellow citizen or citizens to compensate
him in the absence of convincing evidence – which could be just his own
evidence if the surrounding circumstances are consistent – that his complaints
of pain are true reflections of a continuing injury.

Position of the Parties

[101]     Counsel
for Mr. Peters submits that the non-pecuniary damages, including an amount for
loss of handyman and loss of insurability, should be $125,000.

[102]     Counsel’s
submission is based upon Mr. Peters’ lengthy recovery period since the
MVA, in which he experienced pain in his neck and right shoulder, headaches,
anger, irritability, and difficulties with sleep. Counsel asserts that anxiety
and frustration which resulted from the MVA were further exacerbated by the “numeric
dyslexia”. The MVA had consequences for core aspects of Mr. Peters’ daily
living, both at work and at home. While Mr. Peters learned to manage his
pain over time, this should not discount his entitlement to non-pecuniary
damages.

[103]     In support
of his submission, counsel relies on Stapley, where a 58 year old heavy
duty mechanic received $275,000 in an jury award for non-pecuniary damages for
chronic neck and back pain, constant headaches and numbness in his fingers and
arm, which was reduced on appeal to $175,000; Zen v. Readhead, 2011 BCSC
190, where a 45 year old businessman, who suffered soft tissue injuries,
chronic headaches, chronic mechanical pain, tinnitus, hearing loss, and an
adjustment disorder was awarded $110,000 in non-pecuniary damages; Baxter v.
Morrison, 2012 BCSC 1214, where a 52 year old truck driver received
$100,000 in non-pecuniary damages for shoulder, arm and neck pain requiring
surgery to remove a disc; and Williamson v. Suna, 2009 BCSC 576, where a
38 year old military officer received $115,000 in non-pecuniary damages for a
mild traumatic brain injury and ongoing difficulties with memory,
concentration, irritability, and headaches, even though he did not miss work
and was promoted.

[104]     Counsel
for Mr. Peters also seeks an amount for loss of insurability arising from Mr. Peters
having to incur the higher premiums associated with long term disability plans
for “entrepreneurial enterprises”, relying in this regard on Nicholls v.
B.C. Cancer Agency, [1999] B.C.J. No. 1475, where the plaintiff was awarded
$5,000 for the potential loss of long term disability benefits.

[105]     Counsel
also seeks an amount for loss of capacity to do certain handyman work around
the home, relying on the evidence that it takes Mr. Peters longer to carry
out his work around the home and, with respect to some of the heavier work, he
now requires assistance. In support of Mr. Peters’ entitlement to be
compensated for this loss, he refers to Tung v. Allen, 2008 BCSC 666, where
the plaintiff was awarded $5,000 in damages because housekeeping would take her
longer and would be more difficult for her; Ufimzeff v. Brown, 2008 BCSC
1188, where the cost for housekeeping assistance was included in the award for
non-pecuniary damages; and Davidson v. Patten, 2004 ABQB 681, where the
court awarded $20,000 for loss of housekeeping capacity.

[106]     The defendants
do not dispute the plaintiff’s entitlement to non-pecuniary damages but submit
that the amount of damages should be in the range of $45,000. Counsel for the defendants
relies on Demidas v. Poinen, 2012 BCSC 416, where a 53 year old
drywaller with persistent neck, right shoulder and low back pain as well as
headaches and sleep disturbance was awarded $45,000 in non-pecuniary damages; Jorgensen
v. Coonce, 2013 BCSC 158 where a 42 year old plaintiff was awarded $60,000
in non-pecuniary damages in circumstances where a soft tissue injury to his
right shoulder developed into a chronic pain syndrome which significantly
interfered with his work and personal activities as well as his relationship
with his children.

[107]     With respect
to Mr. Peters’ claim for damages for loss associated with handyman work,
counsel for the defendants says that any award for this loss should be included
in non-pecuniary damages.

Discussion

[108]     I have
found that Mr. Peters suffered soft tissue injuries to his shoulder and neck,
which caused him pain and discomfort that in turn resulted in headaches, loss
of sleep, and deterioration in his mood. Mr. Peters became more irritable
and emotional after the accident.

[109]     It is to
Mr. Peters’ credit that he continued to go to work immediately following the
accident and that he continued to seek out ways to adjust his activities to
minimize the pain symptoms in the years since the MVA. Although the more severe
pain diminished over time and his headaches, impaired sleep, and mood
disruption have resolved to pre-injury levels, his shoulder pain and neck pain
have persisted.

[110]     While the
pain is now at a low level and is non-disabling, it is not inconsequential. Mr. Peters
has had to adjust his activities around the house to avoid pain and headaches.
Some of the yard work takes him longer and some tasks have fallen to his wife
or others. Similarly, with respect to his home renovation projects and car
repairs, he has had to adapt how he carries out these tasks to avoid hurting
his neck or shoulder.

[111]     I note
that he has not avoided all strenuous activities and has carried out activities
such as jack hammering and a motor cycle trip from Colorado to British Columbia.
In my view, the fact that he undertook these activities does not mean he no
longer has pain in his neck and shoulder. Rather, his willingness to undertake
such strenuous activities indicates that the pain is manageable. Mr. Peters
has been largely successful in managing his remaining pain symptoms.

[112]     Mr. Peters
and his wife gave evidence that, as a result of the MVA, he had to sell his
boat and could no longer engage in water skiing as he and his family had
enjoyed in the past. While I note that the medical advice he received shortly
after the MVA only advised against “aggressive water skiing”, I accept that Mr. Peters
felt that he could no longer safely water ski given the strain it could cause
to his neck and shoulder. That said, I agree with counsel for the defendants
that the change in Mr. Peters recreational activities were likely also affected
by the change of his family dynamic resulting from his children growing up and
leaving the family home. The last child moved out of the family home in 2010,
and he sold his boat in 2011.

[113]     In
considering the authorities referred to me and taking into account all of the
circumstances, I assess the plaintiff’s non-pecuniary damages at $80,000, which
amount includes an amount for loss of capacity to do physically demanding yard
work. There was insufficient evidence to award an amount for loss of
insurability.

Duty to Mitigate

[114]     A
plaintiff has an obligation to take all reasonable measures to reduce his or
her damages, including undergoing treatment to alleviate or cure injuries: Danicek
v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111.

[115]    
Chiu v. Chiu, 2002 BCCA 618 at para. 57, sets out the test
for failure to mitigate by not pursuing recommended treatment:

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.

[116]     The onus
of establishing a failure to act reasonably is on the defendants: Gilbert v.
Bottle, 2011 BCSC 1389.

[117]     The defendants
submit that any award for damages should be reduced by 15% to reflect Mr.
Peters’ failure to follow the recommendations of Dr. Vaisler and Dr. Gittens
to pursue a course of active rehabilitation. Counsel for the defendants argues
that the reduction in the damage award for failure to mitigate is supported by Tayler
v. Loney, 2009 BCSC 742, in which the Court reduced a non-pecuniary damage
award by 15% for the plaintiff’s failure to follow the advice of the medical experts
to engage in active physical therapy.

[118]     In
considering whether Mr. Peters acted reasonably, I note that Dr. Vaisler’s
recommendation that Mr. Peters receive physiotherapy and exercise for his
neck and shoulders was contained in his 2010 report. Mr. Peters’ evidence,
which is corroborated by his physiotherapist, Dan Boss, is that he did attend
physiotherapy in 2011 and again in 2013. Mr. Peters testified that he
completed the strengthening exercises that Mr. Boss recommended on a
regular basis. Mr. Peters also testified that he did exercises recommended
by his chiropractor, Dr. Erickson.

[119]     With
respect to Dr. Gittens, although the defendants asserted that he
recommended that Mr. Peters “remain as active as possible” and “exercise
in the gym”, Dr. Gittens’ report does not contain a specific
recommendation for an active rehabilitation program. Rather, Dr. Gittens
stated he did not anticipate the need for any ongoing rehabilitation and
expressed the opinion that Mr. Peters “could” continue with his
recreational activities, other than aggressive water skiing, including walking,
cycling, swimming, and some gym activities.

[120]     While a
more intensive physiotherapy program may have been beneficial, based upon Mr. Peters’
positive experience with chiropractic treatment for neck pain and headaches in
the past, I find it was not unreasonable for Mr. Peters to believe this
form of treatment would be effective. In that regard, he attended the
chiropractor for treatment regularly, initially once a week and then every two
weeks. He testified the treatment appeared to be working, as he needed fewer
adjustments.

[121]     Furthermore,
Mr. Peters did not rely on chiropractic treatment exclusively. As noted
above, he did the exercises recommended by the physiotherapist and he remained
physically active. He continued to do most of the yard work, car repair and
home renovation projects, albeit at a slower pace, as well as walking, hiking,
and camping.

[122]     I conclude
that this is not a case where the plaintiff could be said to have “eschewed recommended
treatment” and the defendants have not proved that the Mr. Peters’ “damages
would have been reduced” had he participated in a more intensive rehabilitation
program: Chiu.

Past Income Loss

[123]     A damages
award for loss of earning capacity, whether in the past or for the future,
represents compensation for a pecuniary loss. Accordingly, compensation for
past loss of earning capacity is to be based on what the plaintiff would have,
not could have, earned but for the accident-related injuries: Rowe v. Bobell
Express Ltd., 2005 BCCA 141; M.B. v. British Columbia, 2003 SCC 53; Gregory
v. Insurance Corporation of British Columbia, 2011 BCCA 144.

[124]     In this
case, the plaintiff contends that he would have asked for an increase in his
salary and shares in the company but did not do so because he feared he would
lose his job given the mistakes he was making in his reports and his conflicts
at work, which he believed were related to the MVA.

[125]     In my
view, the plaintiff’s claim under this head assumes that he would otherwise,
but for the MVA, have received a salary increase and a share position in the company.
This is not supported on the evidence.

[126]     After the
MVA, Mr. Peters continued to be paid his normal salary, which also
included a bonus based on a percentage of the company’s profits – with one-half
based on the company’s assessment of his performance and one-half paid irrespective
of performance. Mr. Peters continued to receive mainly positive
evaluations and, according to Mr. Peters’ evidence was paid a bonus comparable
to the other employees who were entitled to receive bonuses.

[127]     While Mr.
Peters may have considered that he should have been better compensated for
duties he was performing and that he should have received shares in the
business, he had no entitlement to such improvements in his compensation. There
is no evidence that other employees received increases during the period in question
and I find it unlikely that Mr. Peters would have been promoted to a more
senior position in the company given Mr. Friesen’s concerns about his
conflict management skills. Further, the two individuals who received a share
position had more senior roles in the company.

[128]     With
respect to income from consulting, the plaintiff claims that he had to turn
away consulting work because of the effects of the MVA, which left him
“cognitively drained”. However, the plaintiff’s evidence does not persuade me
that this was the case. The evidence adduced under cross-examination shows his
income from consulting was declining even prior to the MVA. While Mr. Peters
testified he turned away work with Jordair in 2009, the only invoice which is
in evidence refers to work completed in 2010. Further, the invoices from Peak
Oilfields do not show a decline in his consulting income since the MVA.

[129]     In my
view, the downward trend in his consulting work was consistent with Mr. Peters’
evidence that he worked long hours at the company in a period of expansion
which required him to travel to plants in Ontario and Colorado. His full time
work responsibilities with the company and his other community work, which
included volunteer work with his church and running for re-election for a
contested position on the Waterworks Board, limited the time Mr. Peters
would have had to engage in consulting.

[130]     Accordingly,
I decline to award damages for past income loss.

Future Income Loss

[131]    
The principles governing loss of future earning capacity were summarized
by Mr. Justice Walker in Ruscheinski v. Biln, 2011 BCSC 1263 at paras.
114-118:

For an award under this head of damages to be made, Ms.
Ruscheinski must demonstrate a “substantial possibility that lost capacity will
result in pecuniary loss”: Perren v. Lalari, 2010 BCCA 140, at paras. 4,
7, 21, 31, and 32, 317 D.L.R. (4th) 729; Steward v. Berezan, 2007 BCCA
150 at para. 17, 64 B.C.L.R. (4th) 152. A future or hypothetical possibility
will be taken into consideration as long as it is a real and substantial
possibility and not mere speculation: Perren at para. 30.

If the plaintiff discharges the burden of proof, then he or she
may prove quantification of that loss by an earnings approach or by a capital
asset approach: Perren at para. 32; Chang v. Feng, 2008 BCSC 49
at para. 76, 55 C.C.L.T. (3d) 203.

Garson J.A. wrote in Perren at para. 11 that where the
loss cannot be measured in a pecuniary way, “the correct approach [is] to
consider the factors described by Finch J., as he then was, in Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353. In Brown, he said at para. 8:

The means by which the value of the
lost, or impaired, asset is to be assessed varies of course from case to case.
Some of the considerations to take into account in making that assessment
include whether:

1. The plaintiff has been rendered
less capable overall from earning income from all types of employment;

2. The plaintiff is less marketable
or attractive as an employee to potential employers;

3. The plaintiff has lost the
ability to take advantage of all job opportunities which might otherwise have
been open to him, had he not been injured; and

4. The plaintiff is less valuable
to himself as a person capable of earning income in a competitive labour
market.

In para. 12 of Perren, Garson J.A. said:

These cases, Steenblok, [1990]
B.C.J. No. 1158, Brown, and Kwei, [1991] B.C.J. No. 3344, illustrate the
two (both correct) approaches to the assessment of future loss of earning
capacity. One is what was later called by Finch J.A. in Pallos, [1995]
B.C.J. No. 2, the ‘real possibility’ approach. Such an approach may be
appropriate where a demonstrated pecuniary loss is quantifiable in a measurable
way; however, even where the loss is assessable in a measurable way (as it was
in Steenblok), it remains a loss of capacity that is being compensated.
The other approach is more appropriate where the loss, through proven, is not
measurable in a pecuniary way. An obvious example of the Brown approach
is a young person whose career path is uncertain. In my view, the cases that
follow do not alter these basic propositions I have mentioned. Nor do I
consider that these cases illustrate an inconsistency in the jurisprudence on
the question of proof of future loss of earning capacity.

A useful summary of the principles governing the
determination and measure of an entitlement of an award for loss of income
earning capacity is set out at para. 32 in Perren:

A plaintiff must always prove, as was noted by Donald
J.A. in Steward, by Bauman J. in Chang, and by Tysoe J.A. in Romanchych,
that there is a real and substantial possibility of a future event leading to
an income loss. If the plaintiff discharges that burden of proof, then
depending upon the facts of the case, the plaintiff may prove the
quantification of that loss of earning capacity, either on an earnings
approach, as in Steenblok, or a capital asset approach, as in Brown.
The former approach will be more useful when the loss is more easily
measurable, as it was in Steenblok. The latter approach will be more
useful when the loss is not as easily measurable, as in Pallos and Romanchych.
A plaintiff may indeed be able to prove that there is a substantial possibility
of a future loss of income despite having returned to his or her employment.
That was the case in both Pallos and Parypa, [1999] B.C.J. No.
270. But, as Donald J.A. said in Steward, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss.

[132]     In this
case, it is agreed that, should I award damages under this head, the
appropriate means of assessment is the “capital asset approach”.

Position of the parties

[133]     Counsel
for the plaintiff claims that Mr. Peters has become “damaged goods” as a
result of the MVA. Counsel does not assert that Mr. Peters lost his
employment with the company because of his injury and recognizes that there
were other reasons why that decision was made. Nevertheless, counsel submits
that, as a result of the MVA, Mr. Peters has been rendered less capable,
less marketable and less able to take advantages of opportunities or compete in
competitive labour market. He asserts, had it not been for the accident, Mr. Peters
would have been in the position of chief financial officer.

[134]     Counsel
for the defendants takes issue with the plaintiff’s characterization of Mr. Peters
being “damaged goods”. He submits that the plaintiff has suffered no loss of
earning capacity as a result of the MVA. He contends that Mr. Peters’
concerns about “numeric dyslexia” are wholly unfounded and that it has not been
established that, in the future, Mr. Peters would be paid any more than he
was paid at the company.

Discussion

[135]     The
question I must consider is whether there is a substantial possibility of
future income loss. There are two aspects of Mr. Peters’ injuries:
physical and psychological.

[136]     I find
that the medical evidence in respect of Mr. Peters’ physical injury to his
neck and shoulder does not support the existence of a physical disability that
would significantly affect his future employment as an accountant or in corporate
finance.

[137]     With
respect to the psychological effect of the MVA, I have found it is more
probable than not, based upon the evidence of Mr. Peters and the opinion
of Dr. Schmidt, that Mr. Peters continues to experience considerable
anxiety over his failures of attention or perception in carrying out accounting
related functions and that these perceived “failings” have become
“self-generating”. His anxiety has undermined his self-confidence and his sense
of his ability to be successful in the field of accounting and corporate
finance. As Mr. Peters will shortly be looking for alternate employment and
must “sell” himself to prospective employers, I find there is a real and
substantial possibility that his future earnings will be affected for a period
of time. Applying the considerations from Brown v. Golaiy (1985),
26 B.C.L.R. (3d) 353, I am satisfied that he has become less valuable to
himself as a person capable of earning income from all types of employment, and
his ability to take advantage of job opportunities which would otherwise be
open to him has been diminished.

[138]     However, I
am not persuaded that the plaintiff has proven this psychological condition is
permanent or will have a severe effect on his earning capacity. At the time of
trial Mr. Peters had had only limited psychological treatment for his “dyslexia-related”
anxiety and Dr. Bubber testified that the four therapy sessions with Mr. Peters
did not focus on developing strategies to assist Mr. Peters with his
failures of attention or perception. Further, she and Dr. Schmidt agreed that
he was clever enough to be able to develop such compensatory strategies on his
own. Mr. Peters confirmed in his evidence that he used various strategies
at work to avoid mistakes, which allowed him to continue to function as the company’s
comptroller.

[139]     While I believe
that Mr. Peters continues to struggle with anxiety related to this issue,
I find it is more likely than not that, with further psychological
intervention, he will be able to manage his anxiety and fully regain his
self-confidence in his ability to earn an income appropriate for a person with
his experience within a period of one to two years. Although Dr. Schmidt
was cautious about Mr. Peters’ prognosis, Mr. Peters has not yet had
the benefit of an extended course of psychological intervention.

[140]     I am
satisfied that the plaintiff has discharged the burden of proof of establishing
entitlement to damages for loss of future earning capacity. However, I am also
mindful that there are other factors that may negatively affect Mr. Peters’
future income which are unrelated to the defendants’ negligence. Based upon all
of the evidence, I award Mr. Peters $50,000 for future income loss.

Costs of Future Care

[141]     The plaintiff
is entitled to compensation for the cost of future care based on what is
reasonably necessary to restore him to his pre-accident condition in so far as
that is possible. The award is to be based on what is reasonably necessary on
the medical evidence to preserve and promote the plaintiff’s mental and
physical health:  Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33
(S.C.); Williams v. Low, 2000 BCSC 345; Spehar v. Beazley, 2002
BCSC 1104; Gignac v. Rozylo, 2012 BCCA 351.

[142]     The test
for determining the appropriate award under the heading of cost of future care
is an objective one based on the medical evidence. For an award of future care:
there must be a medical justification for claims for cost of
future care and the claims must be reasonable: Milina; Tsalamandris
v. McLeod, 2012 BCCA 239 at paras. 62-63

[143]     Future
care costs are “justified” if they are both medically necessary and likely to
be incurred by the plaintiff. The award of damages is thus a matter of
prediction as to what will happen in the future. If a plaintiff has not used a
particular item or service in the past it may be inappropriate to include its
cost in a future care award. However, if the evidence shows that previously
rejected services will not be or be able to be, rejected in the future, the
plaintiff can recover for such services:  Izony v. Weidlich, 2006
BCSC 1315 at para. 74; O’Connell v. Yung, 2012 BCCA 57 at paras.
55, 60, 68-70.

[144]     The
extent, if any, to which a future care costs award should be adjusted for
contingencies depends on the specific care needs of the plaintiff. In some
cases negative contingencies are offset by positive contingencies and,
therefore, a contingency adjustment is not required. In other cases, however,
the award is reduced based on the prospect of improvement in the plaintiff’s
condition or increased based on the prospect that additional care will be
required. Each case falls to be determined on its particular facts: Gilbert
v. Bottle, 2011 BCSC 1389 at para. 253.

[145]     An
assessment of damages for cost of future care is not a precise accounting
exercise: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para.
21.

[146]     The plaintiff
claims $5,000 for future psychological and chiropractic care. As counsel for
the plaintiff noted, the need for chiropractic services is no longer
recommended by a physician. I find, therefore, it is a not justified as
medically necessary. Mr. Peters may, of course, decide to continue chiropractic
treatments on the same basis as he did prior to the MVA.

[147]     As noted
above, a course of psychological intervention was recommended for Mr. Peters by
Dr. Schmidt. I, therefore, accept that the cost of psychological treatment
is recommended and reasonable in the circumstances. I assess the costs of
future care at $3,000.

Special Damages

[148]     It is well
established that an injured person is entitled to recover the reasonable
out-of-pocket expenses incurred as a result of an accident. This is grounded in
the fundamental governing principle that an injured person is to be restored to
the position he or she would have been in had the accident not occurred: X.
v. Y., 2011 BCSC 944 at para 281; Milina at para. 78.

[149]     The plaintiff
claims $10,730 in expenses related to psychological therapy; physiotherapy,
chiropractic therapy, prescriptions, MRIs, and travel for medical appointments.
The defendants did not object to the expenses claimed.

[150]     As Mr. Peters’
visits to the chiropractor following the MVA were initially recommended by his
family physician, I find these and the other claimed expenses to be reasonable.
I award $10,730 for special damages.

Conclusion

[151]     In
summary, the total damages assessed amount to $143,730:

Non-Pecuniary Damages

(including an amount for loss of
handyman capacity):            $80,000

Future Income Loss                                                            $50,000

Costs of Future Care                                                           $
3,000

Special Damages                                                                $10,730

[152]      The plaintiff
is entitled to judgment for that amount, together with interest.

[153]    
The plaintiff is entitled to recover his costs at Scale B.

“Harris J.”