IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131210

Docket: M137710

Registry:
New Westminster

Between:

James Robert
Stewart MacIntosh

Plaintiff

And

James William
Davison, Allan Murray Marston and Ana Maria Marston

Defendants

Before:
The Honourable Mr. Justice Davies

Subject
to Rule 15-1

Reasons for Judgment

I.                
introduction

[1]            
On October 9, 2009, the plaintiff, James Robert Stewart (“Stew”) MacIntosh
and his wife, Susan MacIntosh, were travelling from Vancouver to Kelowna for
the Thanksgiving weekend.

[2]            
On Highway 1, just east of the Port Mann Bridge, their vehicle was
struck from behind by a vehicle driven by the defendant, James Davison. The
Davison vehicle was then struck from behind by a vehicle driven by the defendant
Allan Marston that caused a second impact with the plaintiff’s vehicle.

[3]            
Mr. and Mrs. MacIntosh continued their planned trip to Kelowna after
renting a vehicle but the long weekend and its aftermath were far less than
enjoyable. Both were dominated by the pain Mr. MacIntosh endured from the
injuries he had suffered in the collision.

[4]            
The defendants’ liability for the collision has been admitted and this
judgment concerns the assessment of the damages suffered by Mr. MacIntosh
as a consequence of the defendants’ admitted negligence.

II.              
ISSUES

[5]            
Mr. MacIntosh claims substantial non-pecuniary damages for his pain and
suffering and loss of enjoyment of life resulting from the effects of the
collision.

[6]            
He also seeks:

a)    Damages for his
loss of future income earning capacity;

b)    Special damages
primarily related to unpaid health care costs incurred by him prior to trial;
and

c)     Damages
for those costs of his future care that he says are necessitated by the lasting
effect of the injuries he suffered in the collision.

[7]            
Although the defendants have admitted liability, they say that the damages
claimed by Mr. MacIntosh are excessive. They also say that many of his
post-collision and present health concerns arise from pre-existing conditions
for which they have no obligation to compensate him.

III.            
BACKGROUND

[8]            
At the time of the collision, Mr. MacIntosh was almost 57 years old
and is now almost 61. He has been married to Mrs. MacIntosh for 23 years.
They have two adult sons.

[9]            
Mr. MacIntosh is a well-qualified professional real estate appraiser who
operates a successful appraisal company owned jointly by himself and his
business partner of 18 years, Mr. Richard Yoshida, with whom he
shares responsibilities and profits.

[10]        
Before the collision, Mr. MacIntosh led a very active social, business,
and physical life. He was very fit physically and worked on both strength and
aerobic aspects of that fitness through regular exercise as well as extensive
hiking. His recreational passion was golf, a pursuit which also allowed him to
pursue and cement ongoing business opportunities in addition to the social
aspects of the game. Mr. MacIntosh testified that in 2008 he played back-to-back
rounds of golf on most Saturdays and Sundays during the golf season as well as
at least one other time per week.

[11]        
In part, Mr. MacIntosh’s devotion to exercise and fitness as a way of
life arose because, at age 20, he had back surgery (an L4-5 discectomy) that
may have been related to skiing. The causation issues raised by the defendants
in this case have their genesis in the cause and effect of that deficit
requiring surgery.

[12]        
In addition to the L4-5 discectomy, Mr. MacIntosh’s pre-accident
medical history relevant to the causation issues now raised by the defendants includes:

1)    a 1997 motor
vehicle accident in which Mr. MacIntosh sustained soft tissue injuries to his
neck and lower back;

2)    a September 2003
motor vehicle accident in which he suffered injuries to his neck and back;

3)    a February 2007
“flare-up” of low back pain which either arose spontaneously or as a consequence
of a change in Mr. MacIntosh’s exercise regime; and

4)    a history of
migraine headaches.

IV.           
AFTERMATH OF THE COLLISION

[13]        
At the time of the collision, Mr. MacIntosh immediately felt pain in his
neck and back as well as some pain in his right hand. He had difficulty
sleeping and the number of migraine headaches he suffered increased.
Subsequently, pain in his left shoulder also materialized which his treating
physician, Dr. Michael Kates, considered to be secondary to the neck injury he
had suffered in the collision.

[14]        
Mr. MacIntosh did not miss any work after the collision but did attend
upon Dr. Kates after returning from Kelowna. He subsequently also attended
upon many other health professionals who have assessed and treated his injuries
over the years since the collision.

[15]        
Dr. Kates’ clinical records as well as those of Dr. Quirke, a physician
with an interest in the treatment of back pain to whom Dr. Kates referred Mr. MacIntosh,
offer a reliable and detailed chronological history of the progress of Mr. MacIntosh’s
injuries after the accident.

[16]        
A brief summary of the effects of the collision upon Mr. MacIntosh’s
health and the medical treatment for it in the years after the collision
follows.

A.             
2009

[17]        
On October 16, 2009, one week after the collision and his return from
Kelowna, Mr. MacIntosh attended upon Dr. Kates, who diagnosed soft tissue
injuries to Mr. MacIntosh’s neck and back and, to a lesser degree, his right
hand. Dr. Kates referred Mr. MacIntosh to active physiotherapy which Mr.
MacIntosh then undertook twice weekly as well as an exercise regime recommended
by his physiotherapist. In addition, Dr. Kates advised Mr. MacIntosh to
take Tylenol “as needed” for pain.

[18]        
On November 17, 2009, Mr. MacIntosh again attended upon Dr. Kates,
still complaining of pain across his upper back as well as lower back pain on
his left side. Dr. Kates advised him to continue physiotherapy and the
recommended exercise program.

[19]        
On December 18, 2009 (now about two and one half months’ post collision),
Dr. Kates saw Mr. Macintosh again, at which time he continued to complain of
pain in his upper back and neck, as well as symptoms of left shoulder weakness
which Dr. Kates considered to be related to the neck injuries suffered in
the collision.

B.             
2010

[20]        
Physiotherapy continued, and Mr. MacIntosh next saw Dr. Kates on
January 11, 2010, with continued neck pain complaints and some numbness in
his left shoulder area, as well as persisting spasm in the left lumbar region
of his low back. In his report of that visit, Dr. Kates wrote:

He was continuing with
physiotherapy and I decided to obtain a cervical spine x-ray to assess his
shoulder and neck symptoms. A cervical spine x-ray was obtained on
January 12, 2010, the following day, and other than some mild degeneration
which was to be expected in a patient Mr. MacIntosh’s age, there was no
significant pathology noted in the cervical spine x-ray.

[21]        
On January 27, 2010, Dr. Kates reviewed that x-ray with Mr. MacIntosh
who was then still suffering persistent pain radiating into his left arm as
well as lower back pain, especially in the left lumbar region. Dr. Kates
continued to have Mr. MacIntosh see the physiotherapist for the back pain
as well as a hip flexor that had developed. Dr. Kates also referred Mr. MacIntosh
to another physiotherapist who specialized in shoulder injuries concerning his
shoulder and arm pain.

[22]        
Mr. MacIntosh followed those recommendations by attending upon both
physiotherapists as directed.

[23]        
Mr. MacIntosh next saw Dr. Kates on March 24, 2010, more than five
months post collision. He was then still suffering from left lower back and
left hip flexor pain. His shoulder symptoms were, however, improving under the
direction of the specialist shoulder physiotherapist to the point where he was
starting to take easy golf swings in preparation for a return to golfing.

[24]        
By June 18, 2010, when he next saw Dr. Kates more than nine months after
the collision, Mr. MacIntosh reported some general improvement but also persistent
low back pain for which he continued to take physiotherapy once each week. Dr. Kates’
objective findings confirmed significant tightness in the lumbar spine area, especially
with rotation. Mr. MacIntosh also advised that in attempting to return to golf
he found it difficult to play 18 holes because the activity exacerbated
the pain he was still suffering in his low back. Dr. Kates recommended
continued physiotherapy as well as home exercise as instructed by the
physiotherapist.

[25]        
On his next visit to Dr. Kates on August 31, 2010, Mr. MacIntosh advised
that his left arm and shoulder symptoms were resolving under the care of the
shoulder specialist physiotherapist, but he continued to complain of persistent
left side lower back pain and spasm that were affecting his ability to swing a
golf club or hike in the forest (as he had previously routinely done before the
collision) because of the exacerbation of pain caused by such activities.

[26]        
Mr. MacIntosh also described the pain as radiating from his low back
into the front part of his left hip or hip flexor area. Dr. Kates and Mr.
MacIntosh decided that if the low back symptoms did not significantly improve, he
would be referred to Dr. Quirke, the physician with an interest in
treating back injuries, whom Mr. MacIntosh had seen in 2007 when he had had
a “flare up” of low back pain that had arisen either spontaneously or from a
change in exercises.

[27]        
On October 4, 2010, almost exactly one year after the collision, Mr. MacIntosh
again saw Dr. Kates with no change to his lower back pain symptoms. They still persisted,
notwithstanding the intensive physiotherapy and exercise regime which he had
been following for treatment as recommended.

[28]        
Dr. Kates then referred Mr. MacIntosh to Dr. Quirke for spinal
manipulation therapy, and did not again see Mr. MacIntosh during the next
approximately eight months while Mr. MacIntosh was in Dr. Quirke’s care.

[29]        
The referral to Dr. Quirke is significant for two reasons. Firstly, Dr. Kates
made the referral because he believed that his own ability to assist Mr. MacIntosh
was limited due to the persistence of the lower back injuries since the collision.
Secondly, Mr. MacIntosh was familiar with Dr. Quirke and his treatment methods
involving spinal manipulation because he had been successfully treated by Dr. Quirke
in 2007 for the low back problems that had manifested in February of that year.

[30]        
My review of all of the medical evidence and Mr. MacIntosh’s own
evidence leads me to find that as of the date of that referral to Dr. Quirke,
the injuries to Mr. MacIntosh’s upper back, shoulder, neck and hand that
were caused by the collision had largely resolved. I also find that the
increase in the frequency of his migraine headaches ended after about three
months and then returned to pre-accident frequency.

[31]        
Thus, when referred to Dr. Quirke, Mr. MacIntosh’s only serious
remaining injuries attributable to the collision were those related to his
lower back.

[32]        
On October 14, 2010, after first seeing Mr. MacIntosh, Dr. Quirke
reported to Dr. Kates that:

“On examination inspection of his spine did not reveal any
abnormal curvature but a well healed lumbar discectomy scar was noted (surgery
was in 1972). Forward lumbar flexion was finger tips to eighteen inches and
extension was quite limited at twenty degrees. Hips were both somewhat tight
but the restriction was probably muscular. Straight leg raising, right was
equal to left at about seventy degrees. Pelvic obliquity was noted with the
left hemi pelvis being posterior and superior and significant dysfunction was
noted in the area of the left sacroiliac ligaments”

“I have explained the findings to him and given him
appropriate stretches and I will subject him to a trial of spinal manipulation,
however at this late date prognosis will have to be guarded”.

[Emphasis added.]

[33]        
After that initial consultation with Dr. Quirke in October 2010, Mr. MacIntosh
attended upon him on five further occasions in October of that year, as well as
two times in November and two times in December.

C.             
2011

[34]        
In the first half of 2011, Mr. MacIntosh saw Dr. Quirke three times in
January, as well as once in each of February, May, and June of 2011.

[35]        
Concerning those attendances and the progress of his treatment of Mr.
MacIntosh, Dr. Quirke wrote in a medical-legal report dated April 23,
2013:

Mr. MacIntosh was subjected to
spinal manipulative techniques targeting his lumbar spine. Mr. MacIntosh did
not have any sustained improvement as a result of these treatments and due to
persistent symptoms underwent a contrast enhanced CT scan at Lions Gate Hospital
on June 9, 2011. Mr. MacIntosh was also referred for a trial of epidural
steroid injections but after consultation with the anesthetist and as Mr.
MacIntosh’s severe symptoms had resolved somewhat it was decided not to proceed
with these invasive injections. Mr. MacIntosh was also referred to the Spine
Clinic at Lions Gate Hospital for neurosurgical consultation and this was also
cancelled due to improvement in his symptoms.

[36]        
Shortly before seeing Dr. Quirke in June of 2011, Mr. MacIntosh also again
attended upon Dr. Kates on May 31, 2011, whom he had not seen since the
referral to Dr. Quirke.

[37]        
Concerning that visit, Dr. Kates reported in his medical-legal report
dated May 2, 2012, that:

He attended me on May 31, 2011 with ongoing complaints of low
back pain increasing in severity. The low back pain was initially localized to
the left side of his back but on this occasion was more on the right side. He
had been seeing Dr. Quirke, as was mentioned previously, for manipulation
and Dr. Quirke decided to order a CT scan to assess his prolonged symptoms. The
CT scan was booked for early June. Dr. Quirke had also referred him to
Lions Gate Hospital for possible steroid injections, but the radiologist at LGH
felt that due to previous scar tissue, an injection would be difficult and
decided against it. On his visit with me on May 31, 2011 Mr. MacIntosh
continued to complain of pain in his lower back, radiating into his right
buttock. He told me that he was only able to golf sporadically due to the pain.
On examination there was definite reduction in the range of motion of his
lumbar spine, but no significant neurological dysfunction was noted.

He continued to complain of some mild left arm and shoulder
pain but felt that it was considerably improved. He expressed his frustration
with his inability to enjoy golf which was his main recreational activity. He
complained of the fact that the pain was continuing to wake him at night and he
was also finding it difficult sitting for any prolonged period of time.

I expressed to him my view that
his prognosis was somewhat guarded due to the fact that he had previous MVA’s
and also had disc surgery at age 20. I did not think that he was a surgical
candidate and that he might need referral for pain control management.

[38]        
The radiologist who read the June 9, 2011 CT Scan referred to by both
Drs. Quirke and Kates wrote:

“multi level lumbar spondylosis.
Segmentation anomaly. Any surgery should correlate the CT sagital images with
intra-operative lateral radiograph of the lumbar spine. There is evidence of
previous left L-4-5 mini hemilaminotomy and microdiscectomy. Suspected focal
right disc herniation with inferior migration within the right lateral recess”

[39]        
Mr. MacIntosh next attended upon Dr. Kates on June 27, 2011. Dr. Kates’
report of that visit, as recorded in his May 2, 2012 report, reads:

He attended me again on June 27,
2011 at which time we reviewed the CT scan that had been done on June 9, …. The
CT scan report mentioned multi-level degenerative changes in his low back which
would be quite normal in a man his age. The report also mentioned the previous
L4-5 disc surgery and that there was some disc bulging at that level. Dr.
Quirke had apparently initiated a referral to the LGH spinal clinic to have him
assessed by the surgeons there. He continued to complain of low back pain
radiating down his right leg. I gave him some samples of LYRICA 25 mg to try at
night. LYRICA is a pain medication that is sometimes useful for neurogenic
pain. I also advised him to use TYLENOL #3 as needed for pain during the day.

[40]        
Mr. MacIntosh’s next visit to Dr. Kates was on July 11, 2011, when he
reported that the pain radiating down his right leg had subsided and that he
had been pain free for three or four days prior to that visit. He also advised
that he was walking 40 minutes a day and feeling very positive due to the
improvement of his condition. As a consequence, a referral to the spinal clinic
for assessment was held in abeyance in favour of further assessment by Dr.
Kates.

[41]        
On July 27, 2011, Mr. MacIntosh again saw Dr. Kates. He reported that he
was told by Mr. MacIntosh that he was still feeling well; was walking every day
and continuing his home exercise program; and was very encouraged by his
progress and the alleviation of severe low back pain.

[42]        
On his next visit to Dr. Kates on August 23, 2011, Mr. MacIntosh
advised that the more significant symptoms of low back pain had not recurred.
Although he was continuing his walking program, his hip flexor was limiting his
ability to walk for prolonged periods. Mr. MacIntosh also advised that he had
returned to playing golf on weekends and was tolerating it but experienced some
soreness after 18 holes.

[43]        
Dr. Kates reported that on examination there was still some restriction
in the range of motion of Mr. MacIntosh’s lumbar spine and he recommended
continued physiotherapy. In his testimony, Dr. Kates stated that in his opinion
the hip flexor problems then endured by Mr. MacIntosh were likely a
manifestation of the low back injuries he had suffered in the collision.

[44]        
On September 6, 2011, Mr. MacIntosh again advised Dr. Kates that he was
golfing but that he now needed to use a golf cart due to the aggravation of his
right hip flexor. He also reported that he was continuing with the recommended
physiotherapy treatment.

[45]        
On October 12, 2011, Mr. MacIntosh again saw Dr. Kates and complained of
pain radiating down from his right leg to his foot with some mild numbness. On
examination, Dr. Kates noted there was no neurological dysfunction and also
noted no weakness.

[46]        
On October 18, 2011, and November 10, 2011, Mr. MacIntosh revisited Dr. Quirke
who reported that “despite persistent symptoms his overall condition improved.”
Mr. MacIntosh attributed that improvement to “intense and frequent” workouts
with his physiotherapist.

[47]        
In addition to seeing Dr. Quirke, on November 10, 2011, Mr. MacIntosh
also again saw Dr. Kates. Dr. Kates reported that:

I saw Mr. MacIntosh on November
10, 2011 with continued subjective improvement in that the symptoms of numbness
in his right leg had subsided. He had stopped golf for the season and the pain
in his lower back had now switched back over to his left side. He was
continuing with physiotherapy and a core exercise program three times a week.
On examination there was again noted to be some reduced range of motion of his
low back especially with flexion. Straight leg raising was 90 degrees
bilaterally and there was no weakness of any significance noted.

D.             
2012

[48]        
Mr. MacIntosh next saw Dr. Kates on January 3, 2012, after a holiday in
Maui. He advised that he felt subjectively much improved but that he still had
ongoing low back spasm exacerbated by prolonged walking. Mr. MacIntosh also
advised Dr. Kates he had returned to his physiotherapist and was advised
to continue with his core strengthening program to prepare for the upcoming
golf season. Dr. Kates reported that on examination Mr. MacIntosh still
had “a restricted range of motion in his low back.”

[49]        
Mr. MacIntosh again saw Dr. Kates on February 14, 2012, who reported:

He had continued with
physiotherapy treatments at the Lynn Valley Physiotherapy Clinic where they
were working on his core strength and stretching. He was also participating in
a one day a week personal program at home involving light weight resistance
training. He advised me that he felt subjectively that his general strength and
conditioning was improving, although he had had a flare-up one week previous to
his visit with me with a flare-up of right low back pain and left hip flexor
pain, which may have been brought on by a new exercise that he had been
participating in in order to prepare him for golf.

[50]        
Mr. MacIntosh’s next attendance upon Dr. Kates was on April 24,
2012. He reported that he was now attending physiotherapy sessions twice a week
and was involved in an at-home exercise program once per week. Dr. Kates
reported that:

On that visit he continued to complain of some persisting low
back pain on the right side which has stabilized. It occurs on a daily basis
and he often wakes up with it in the morning but it tapers off as he begins
moving around. He then states that [it] comes on again later in the day
especially after any prolonged sitting at his office. He also complains of
persisting left hip flexor pain and tightness. He continues to complain with
some problems with sleeping at night as he often wakes up in the middle of the
night and has to take a Tylenol for back pain. He advised me that his shoulder
and neck issues had resolved completely.

He had returned to golf this
season and had golfed a full 18 holes the previous weekend. He was able to
tolerate it but there was some back spasm after playing a full 18 holes.
We discussed the fact that his condition had more or less plateaued and that he
will have to deal with flare-ups of chronic low back pain on an ongoing basis.
I advised him that physiotherapy will be needed from time to time for flare-ups
of back pain and I felt that he should continue with physiotherapy at least on
the short term on the twice weekly regime that he is currently doing. I also
advised him that any future trauma could result in a much more severe back
issue as he has had multiple motor vehicle accidents.

[51]        
Over the next six months Mr. MacIntosh attended upon Dr. Kates three
times commencing on June 18, 2012. Concerning those visits, in his second
medical-legal report dated October 26, 2012, Dr. Kates wrote:

I saw Mr. MacIntosh again on June 18, 2012. We discussed the
fact that his symptoms had more or less plateaued and the fact that he was
continuing with physiotherapy on a twice weekly basis as well as therapeutic
massage on a weekly basis which he felt was helping him significantly. His
symptoms remained unchanged with respect to his low back pain. He had been
golfing but with some difficulty.

I saw him again on August 8, 2012. He mentioned to me he was
attempting to golf on a regular basis but found that if he golfed for two or
three days in a row he had a significant exacerbation of his symptoms. The pain
again was mainly localized to the right lower lumbar region. He was continuing
with physiotherapy. He also mentioned that he had had some intermittent
radiation of pain down his right leg but on examination the physical findings
were unchanged. He had 90 degrees of straight leg raising bilaterally and
there was no weakness noted. Again I attempted to reassure Mr. MacIntosh.

Mr. MacIntosh saw me for the last
time [pre-report] concerning his injuries on October 15, 2012. As of that visit
he was continuing with physiotherapy and massage therapy on a once weekly
basis. He mentioned that he was getting flare ups of pain after golfing on the
weekend and that the physiotherapy and massage therapy were helping to control
the symptoms. He was continuing with the home exercise program as recommended
by his physiotherapist. He also mentioned to me that the physiotherapist was
using some traction technique at the end of their sessions which he felt was
very helpful. His symptoms had more or less plateaued with continued complaints
of daily back pain, mostly in the right lower lumbar region. The pain occurs on
a daily basis and is often aggravated by golf or prolonged sitting. He
mentioned that the pain often wakes him at night at which time he uses an extra
strength Tylenol or the occasional TYLENOL #3 or 222 for control of the pain.
The physical findings on examination in my office that day were unchanged. He
still had some reduced range of flexion in his lumbar spine, but straight leg
raising was normal in 90 degrees bilaterally.

[52]        
In the last two months of 2012, Mr. MacIntosh saw Dr. Kates on November 13
and December 10. About those attendances, Dr. Kates wrote in his third
medical-legal report dated May 17, 2013:

I saw him again concerning his injuries on November 13, 2012.
On that visit he requested that I refer him to a personal trainer in order that
he may learn some golf specific exercises which might help him control the pain
and flare-ups of pain exacerbated by his attempts to golf. A re-referral was also
put through to the Lynn Valley Physiotherapy Clinic for ongoing rehabilitation.

I saw him again on December 10,
2012 at which time I completed a CL19 report for the Insurance Corporation of
British Columbia. As of that visit Mr. MacIntosh continued to complain of the
same symptoms of low back pain on the right side as well as tight hip flexors
on the left side. On examination the range of motion of his lumbar spine was
unchanged, he still had some mild restriction to both flexion and right and
left lateral flexion of the lumbar spine.

E.             
2013

[53]        
In his third medical legal report, Dr. Kates recorded that he saw Mr. MacIntosh
on February 26, 2013, April 24, 2013 and May 8, 2013. Concerning those visits
he wrote:

Mr. MacIntosh attended me again in my office on February 26,
2013. As of that visit his symptoms remained unchanged with persisting right
sided lower back pain and left hip pain. He had no complaints of neck pain. He
was again attending the physiotherapist once weekly and the massage therapist
once weekly. He was about to begin a program for active training under the
guidance of a personal trainer to help improve his level of fitness and
hopefully to continue with golf. On examination in my office that day he still
had some limited range of motion of his lumbar spine. His pain occurred on a
daily basis and he was taking Extra Strength Tylenol tablets up to
approximately eight per day. He was also using Advil, or Ibuprofen, before and
after playing golf. He continued to complain of the problem of waking up at
night with pain and with severe episodes being forced to a Tylenol with Codeine
to relieve the pain.

I saw Mr. MacIntosh again on April 24, 2013. Prior to this
visit he had seen a counseling psychologist the week before. I emphasized to
him that I think counseling is something he should follow up with to help him
cope with his chronic pain issue and the frustrations related to the chronic
pain. He was continuing to wake up at night despite taking Tylenol with Codeine
before bed. He would often wake up in the early mornings of the hour with pain
and have to take another Tylenol. He was frustrated with the fact that this was
occurring on a regular basis. On this visit I decided that it might be
worthwhile giving him a trial of another medication, which is sometimes used to
control chronic pain, namely Cymbalta. I advised him to begin with 30mg for one
week and if tolerated to increase to 60mg. Cymbalta is an anti-depressant
medication that is also indicated for chronic pain.

I saw him for the last time on May
8, 2013 in order to review his symptomatology, in preparation for the medial
report. His current symptoms were that he continued to complain of chronic back
pain on a daily basis. It is localized to his right lumbar region with some
radiation into his right buttock and occasionally down his leg. The pain is
aggravated whenever he plays golf. He continues to complain of problems with
sleep as he [is] awakened almost every night with pain and has to take pain
medication in the middle of the night. He emphasized to me that his sleep is
significantly interrupted on a regular basis and this was very frustrating for
him. The previous weekend he had also had a flare-up of his hip flexor on the
left side which [has] also been an ongoing problem since his accident. Mr.
MacIntosh is attempting to maintain a regular fitness program, but it appears
in his words that ‘he takes one stop forward and the pain is exacerbated, and
then he takes another step backwards’. He continues to be very frustrated with
his ongoing chronic symptoms. I emphasized to him that I felt he should
consider ongoing counseling with a psychologist to help him cope with the
changes and adaptations he is going to have to make in regards to what appears
to be a chronic pain syndrome and a permanent partial disability. He continues
with massage therapy every couple of weeks which appears to give him some
relief, and he attends the physiotherapist on a weekly basis for IMS and core
strengthening. Mr. MacIntosh was not able to tolerate the Cymbalta I had
prescribed for him because of nausea. I decided to try him on another
medication, AMITRYPTALINE, or ELIVILE 25mg at bedtime as this is sometimes also
helpful in controlling chronic pain.

[54]        
In addition to his treating physicians Dr. Kates and Dr. Quirke, both of
whom provided medical legal opinions and testified at trial, Mr. MacIntosh
attended upon a psychiatrist, Dr. Hiram Mok, on April 17, 2013; a physiatrist,
Dr. Russell O’Connor, on April 20, 2013; and an orthopaedic surgeon, Dr. Gerard
McKenzie, on May 31, 2012, for medical legal examinations.

[55]        
The opinions of Dr. Mok and Dr. O’Connor arising from those attendances were
filed as expert reports and both attended at trial for cross-examination at the
request of the defendants. Dr. McKenzie provided a report but at the close
of the plaintiff’s case, counsel for Mr. MacIntosh elected not to tender
his report in evidence.

[56]        
At the request of the defendants, Mr. MacIntosh attended upon Dr. Duncan
McPherson, an orthopaedic surgeon, on April 30, 2013, for an independent
medical examination. Dr. McPherson’s opinion was filed as an expert report and he
attended at trial for cross-examination on that report at the request of the
plaintiff.

[57]        
I will review and consider the expert opinions of all of the doctors who
testified, when addressing the issues of causation raised by the defendants and
the submissions of the parties with respect to Mr. MacIntosh’s damage claims.

V.             
CAUSATION: legal principles

[58]        
Although the defendants have admitted they are liable for the injuries
suffered by Mr. MacIntosh, caused by their negligence in the October 9, 2009
collision, they contest the extent to which those injuries were caused by the
collision.

[59]        
The position advanced by the defence is that while Mr. MacIntosh did
suffer some injury in the collision, the pain and suffering derived from his
low back symptomology which he has endured over the last more than three years
are in large measure attributable to his pre-existing back condition rather
than to the collision.

[60]        
That position requires consideration of the principles addressed by the
Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R 458 [Athey],
and cases decided thereafter which discuss difficult questions involved in the
quantification of damages in cases where the evidence establishes that the
plaintiff suffered from pre-existing injuries or conditions.

[61]        
In Athey, on the issue of quantification generally, as a matter
of first principles, Major J. wrote at para. 32 for the Court:

…The essential purpose and most
basic principle of tort law is that the plaintiff must be placed in the
position he or she would have been in absent the defendant’s negligence (the
“original position”). However, the plaintiff is not to be placed in a position better
than his or her original one. It is therefore necessary not only to determine
the plaintiff’s position after the tort but also to assess what the “original
position” would have been. It is the difference between these positions, the
“original position” and the “injured position”, which is the plaintiff’s loss.

[62]        
More specific to the issue of pre-existing injuries or conditions raised
by the defendants in this case, in Athey, Major J. then went on to
discuss the “Thin Skull” and “Crumbling Skull” doctrines. At paras. 34 and
35 he wrote:

34        The respondents argued that the
plaintiff was predisposed to disc herniation and that this is therefore a case
where the “crumbling skull” rule applies. The “crumbling skull” doctrine is an
awkward label for a fairly simple idea. It is named after the well-known “thin
skull” rule, which makes the tortfeasor liable for the plaintiff’s injuries
even if the injuries are unexpectedly severe owing to a pre-existing condition.
The tortfeasor must take his or her victim as the tortfeasor finds the victim,
and is therefore liable even though the plaintiff’s losses are more dramatic
than they would be for the average person.

35        The
so-called “crumbling skull” rule simply recognizes that the pre-existing
condition was inherent in the plaintiff’s “original position”. The defendant
need not put the plaintiff in a position better than his or her original
position. The defendant is liable for the injuries caused, even if they are
extreme, but need not compensate the plaintiff for any debilitating effects of
the pre-existing condition which the plaintiff would have experienced anyway.
The defendant is liable for the additional damage but not the pre-existing
damage: Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages
for Personal Injuries and Death (9th ed. 1993), at pp. 39-40. Likewise, if
there is a measurable risk that the pre-existing condition would have
detrimentally affected the plaintiff in the future, regardless of the
defendant’s negligence, then this can be taken into account in reducing the
overall award: Graham v. Rourke, supra; Malec v. J. C. Hutton
Proprietary Ltd., supra; Cooper-Stephenson, supra, at pp.
851-852. This is consistent with the general rule that the plaintiff must be
returned to the position he would have been in, with all of its attendant risks
and shortcomings, and not a better position.

[63]        
The defendants submit that Mr. MacIntosh’s pre-existing low back
difficulties require that his post-accident condition be assessed as a
“crumbling skull” case.

[64]        
The defendants further submit that Mr. MacIntosh would have suffered low
back pain in future in any event because of those pre-existing back conditions and
further suggest that in 2012 he aggravated his back during pre-golf season
twisting exercises that lead to a recurrence of the same conditions treated by
Dr. Quirke about five years earlier at about the same time of year.

[65]        
The defendants submit that there was a measurable risk that Mr.
MacIntosh’s pre-existing back conditions would have detrimentally affected him
in the future, notwithstanding their negligence and that such measurable risk
must be taken into account in awarding a significantly lower measure of damages
than that sought by Mr. MacIntosh.

[66]        
Counsel for Mr. MacIntosh disputes that Mr. MacIntosh’s pre-existing
lower back condition should negatively impact the damage award which would
otherwise be appropriate in this case as a consequence of the severity of Mr. MacIntosh’s
suffering, the length of time that it has endured and the evidence that it will
continue well into the future at its present level.

[67]        
The difficulty in assessing damages in an alleged “crumbling skull”
situation was addressed by our Court of Appeal in Zacharias v. Leys,
2005 BCCA 560 [Zacharias], at para. 16 as follows:

[16] The crumbling skull rule is
difficult to apply when there is a chance, but not a certainty, that the
plaintiff would have suffered the harm but for the defendants’ conduct. Major
J. addressed this issue in Athey when he wrote, at paragraph 35, that
damages should be adjusted only when there is a "measurable risk that the
pre-existing condition would have detrimentally affected the plaintiff in the
future, regardless of the defendant’s negligence." Such a risk of harm
need not be proved on a balance of probabilities, which is the appropriate
standard for determining past events but not future ones. Future
or hypothetical events should simply be given weight according to the
probability of their occurrence. At paragraph 27, Major J. wrote that "if
there is a 30 percent chance that the plaintiff’s injuries will worsen, then
the damage award may be increased by 30 percent of the anticipated extra damages
to reflect that risk." In the same paragraph, he went on to say that a
future event should be taken into account as long as it is a "real and
substantial possibility and not mere speculation."

[68]        
Determination of whether there was a “measureable risk” that Mr. MacIntosh’s
pre-existing low back conditions “would have detrimentally affected” him in the
future “regardless of the defendants’ negligence” requires an assessment of all
of the evidence including, of particular note, the medical evidence adduced by
the parties measured against the applicable burden of proof.

VI.           
CAUSATION: EVIDENTIARY ANALYSIS

[69]        
My review of all of the totality of the evidence leads me to conclude
that as of the date of the collision on October 9, 2009:

1)    Mr. MacIntosh
was not suffering any symptoms of lower back pain arising from either the 1997
or 2003 motor vehicle accident in which he sustained soft tissue injuries to
his neck and lower back; and

2)    There was no
measurable risk that the injuries suffered in either or both of those
collisions would have affected him detrimentally in future or played any part
in the extent of the injuries that he suffered in 2009.

[70]        
That leaves for consideration whether the evidence establishes a
measurable risk that Mr. MacIntosh’s pre-existing back conditions related to:

1)    the L4-5
discectomy he was required to undergo at about age 20; and/or

2)    the “flare-up”
of low back pain in February of 2007 which had required approximately six
months of intervention by Dr. Quirke,

would have affected him detrimentally in future, notwithstanding
the 2009 collision.

[71]        
The totality of the medical evidence concerning the potential impact of
the L4-5 discectomy which Mr. MacIntosh required when he was 20 years
old leads me to conclude that while neither that surgery nor the underlying condition
which it addressed were directly causative of the injuries suffered by Mr. MacIntosh
in the 2009 collision, his lower back was compromised at the time of the
collision, at least to some extent, by some degeneration in the area of the
surgery.

[72]        
I reach that conclusion because:

1)   
Dr. Kates reported on May 2, 2012, that a May 1, 2007 CT Scan taken
approximately four months after referral to Dr. Quirke in February of 2007 “showed
existence of the discectomy” and “some recurring disc herniation at that level.”

2)   
Dr. Kates further reported that a subsequent referral to Dr. Maloon, an
orthopaedic surgeon who saw Mr. MacIntosh in June of 2007, resulted in a
diagnosis by Dr. Maloon that Mr. MacIntosh was at that time “suffering from
symptoms of a mechanical or activity related low back pain along with some
symptoms of lumbar radiculopathy related to the L5 nerve root.”

3)   
Dr. Kates also, however, reported that at the time of that consultation
with Dr. Maloon, Mr. MacIntosh’s symptoms had almost completely resolved and
that Dr. Maloon reassured him that “there was no serious pathology in his back,
encouraged him to continue with his normal activities and did not believe there
was “any indication for surgical intervention.”

4)   
Most significantly, Mr. MacIntosh did not return to see Dr. Kates for
any back-related issues until after the 2009 collision that is the subject of
this proceeding.

5)   
In his medical-legal opinion dated April 23, 2012, Dr. Quirke
reported the following concerning his 2007 treatment of Mr. MacIntosh:

Mr. MacIntosh was previously referred to me by Dr. Kates in
2007 and underwent a trial of spinal manipulation for a flare up of mechanical
low back pain with a possible discogenic element. Mr. MacIntosh was treated
using spinal manipulative techniques targeting his lumbar spine. Mr. MacIntosh
did under go a CT scan of his lumbar spine in May of 2007 with similar findings
reported to his later CT scan in June of 2011.

6)   
Concerning that June 2011 post-collision CT Scan, as noted above,
Dr. Quirke reported:

“multi level lumbar spondylosis. Segmentation anomaly. Any
surgery should correlate the CT sagital images with intra-operative lateral
radiograph of the lumbar spine. There is evidence of previous left L-4-5
mini hemilaminotomy and microdiscectomy. Suspected focal right disc herniation
with inferior migration within the right lateral recess”

[Emphasis added.]

7)   
As to his diagnosis with respect to the origin of Mr. MacIntosh’s low
back problems in 2009, Dr. Quirke opined that Mr. MacIntosh was then suffering
from “[c]hronic low back pain presumed to be soft tissue and superimposed
upon a pre-existing condition of episodic mechanical low back pain”
(emphasis added).

8)   
Dr. O’Connor stated in his medical-legal opinion dated April 20, 2013,
that:

James (Stewart) MacIntosh is a 60-year-old right-handed man
who works as a real estate appraiser who owns his own business with a partner
and has been doing so for many years. He has a past history of low back pain
and had discectomy at L4-5 at approximately the age of 20. He had another flare
of his back pain back in 2006 [2007] for which he was diagnosed as having a
focal disc herniation at the L4-5 level causing some irritation of the L5 nerve
root. He was seen by Dr. Maloon. His examination was normal at that point. No
surgery was recommended and essentially by the time he saw Dr. Maloon he was
essentially asymptomatic and was recommended to return to his physical
activity as usual. He got back to doing high-level physical activity. He was
doing P90X workouts at home which is a high level intense strength and
conditioning program in a home gym as well as golfing regularly and walking
with his wife most days. He was tolerating this and managing well.

Because of his past history of back pain he was at increased
risk of reinjury or developing problems with his back again in the future.
It is difficult to predict who will develop further symptoms. It is possible
that he would have developed some sort of symptoms in the future. It is
difficult or impossible to predict if and when. Some patients will go on
and not have back pain again and develop significant or dramatically limiting
symptoms although the majority would have intermittent or grumbling symptoms
based on his history to date. The minority however, in fact, it is more
likely than not, that he would not have developed disabling back symptoms where
he was not able to work or maintain his conditioning. This is based on the fact
that he was doing high level physical activity and was showing no signs of
being limited in any way.

It is my opinion that had the accident not occurred he
still would have been able to maintain his prior level of physical activity
with a slow, age-related decline in his physical capabilities that would occur
as it does with everyone with the passage of time so that in his late 60s and
70s he is less capable of doing higher level or more intense physical activity,
but this would be a slow decline with age.

As a result of the motor vehicle accident on October 9, 2009
he developed the abrupt onset of back and buttock pain which was initially
left sided and then eventually right sided as well as some groin-related pain.

It is my opinion that initial left-sided low back pain and
leg pain was as a result of the accident. He then tried to maintain his level
of physical activity, but his back pain never really did go away and then again
in approximately 2011 in the summer he developed right leg symptoms that
worsened and continued to bother him since.

It is my opinion the motor vehicle accident aggravated
his preexisting and relatively asymptomatic low back pain. Had the accident not
occurred he more likely than not would have been able to maintain his level of
activity for the foreseeable future. He did have intermittent back pain in
the past to the point he has back surgery many years ago. This problem resolved
and only really bothered him again significantly in 2006 but then again
spontaneously resolved. He was not being bothered by regular back pain in the
years leading up to the accident.

[Emphasis added.]

9)        
I find that the history reported by Dr. O’Connor is sufficiently
consistent with the other medical and lay evidence led by the plaintiff in this
case that I can safely rely on his opinions.

10)     
I also do not find that any evidence led by the defendants undermines Dr. O’Connor’s
opinion. I say that because:

a)  In his initial medical-legal
report dated May 13, 2013, filed by the defendants, Dr. McPherson stated that:

This patient was a fully restrained driver in a Lexus in a
rear end collision of apparent violence who describes pain in multiple areas.
He is aware of a limitation in his activities such as golf.

The patient is basically a stiff-jointed person but his
examination of the back suggests significant degenerative change in the thoracic
and lumbar spine with consequent reduction of range. There is no neurological
deficit. He has had a distant laminectomy with full recovery. However, it would
imply a reduced range related to the level of the discectomy at L.4-5.

His physiotherapy plan seems to be trying to make him more
flexible, however, in the face of what clinically appears to be extensive
degenerative changes in his spine that is not likely to happen.

b)  In that same report, Dr.
McPherson also opined:

The complaints shortly after the motor vehicle accident of
October 9, 2009, are consistent with a mild neck strain. He had some arm
symptoms that resolved. Dr. Quirke observes on October 14, 2010, that “left
side low back pain came on several weeks after the motor vehicle accident” but
neck and shoulder pain largely resolved. There are repeated observations of the
reduced range of motion of the back in other examiners.

c)  In a supplemental opinion
dated July 2, 2013, delivered after reviewing further information (including
Drs. Kates, Quirke, and O’Connor’s medical opinions), Dr. McPherson wrote:

The relatively small amount of information that relates to
examination of the lumbar spine has been reviewed. The patient has had an L.4-5
discectomy which would produce some limitation of range of movement, but more
than that he has a developmental sacralization of L.5 on the sacrum, which
produces a more marked restriction of forward flexion of the spine. On top of
that, from CT scan reports he has a documented spondylosis affecting the spine.
That is, wear and tear and alteration of shape of bones, thus reducing the
range of movement.

In my own examination I considered the patient had a
relatively stiff spine. I found that he had very limited rotation of his
thoracic spine and lumbar spine.

d)  To the
extent that Mr. McPherson’s opinions may tend to attribute Mr. MacIntosh’s
post-collision suffering more to degenerative change rather than to the
collision as well as its impact on his pre-existing essentially asymptomatic
low back conditions, I do not find that to be the case.

e)  Such a
finding would be inconsistent with not only the opinions of those professionals
who have treated Mr. MacIntosh for his injuries; the CT scan evidence from both
2007 and 2011 showing little, if any, additional degenerative change in that
period; and Dr. O’Connor’s far more thorough analysis and opinion which I do
accept.

VII.          
CAUSATION: CONCLUSION

[73]        
As I have noted above, my consideration of the totality of the evidence
I consider reliable leads to the conclusions that:

1)    As of the date
of the October 9, 2009 collision, Mr. MacIntosh was not suffering any symptoms
of lower back pain arising from either the 1997 or 2003 motor vehicle accident
in which he sustained soft tissue injuries to his neck and lower back, and there
was no measurable risk that the injuries suffered in either or both of those
collisions would have affected him detrimentally in future or played any part
in the extent of the injuries that he suffered in 2009.

2)    Mr. MacIntosh’s
increased incidence of migraine headaches caused by the 2009 collision resolved
within approximately three months.

3)    By the time of
his referral to Dr. Quirke by Dr. Kates in October of 2010, the injuries caused
to Mr. MacIntosh’s upper back, shoulder, neck and hand that were caused by the
collision had also largely resolved within the prior year.

[74]        
My review of the totality of the evidence that I consider reliable also
leads me to conclude that:

1)    At the time of
the collision in October 2009, although Mr. MacIntosh did have some recurring
disc herniation at the L4-5 level that had been subject to the earlier surgery
that had caused or contributed to a flare-up of pain low back pain in February
of 2007, that flare-up and any effects of it upon his health had come to an end
by mid-2007.

2)    In the two or
more years that followed before the 2009 collision he was asymptomatic with
respect to low back difficulties and able to lead a high level of physical
activity including strenuous exercise, hiking and pain-free golf.

3)    Notwithstanding
that period in which he was free of low back symptomology, Mr. MacIntosh was at
an increased risk of developing future back problems at the L4-5 area either
spontaneously or by injury. To that extent while his condition was then
asymptomatic it was only “essentially so” because of that increased risk.

4)    It is, however,
more likely than not that Mr. MacIntosh would not have suffered the
relatively severe and now chronic back problems that he has suffered but for
the collision. In reaching that conclusion, I accept and rely upon the opinions
of Dr. O’Connor and Dr. Quirke.

5)   
I also find that all of the low back pain and suffering, as well as the
hip flexor difficulties suffered by Mr. MacIntosh since October of 2009, were
either directly caused or materially contributed to by the 2009 collision and
the defendants’ negligence. As stated by Dr. O’Connor in his medical-legal
opinion:

With the motor vehicle accident he developed chronic back
pain that started after the accident and persisted on a daily basis afterward.
The trigger was due to the motor vehicle accident. The flare in his back pain
in 2011 in the summer was on the opposite side and likely represents further
deterioration in his back. He had added or increased risk of developing this
type of problem given the fact that the motor vehicle accident had aggravated
his back pain and led him to have ongoing or chronic symptoms.

6)    Because of the
measurable increased risk of developing future back problems associated with his
essentially asymptomatic pre-existing low back conditions in 2009, those
conditions must be given some weight in determining Mr. MacIntosh’s “original”
position in the assessment of damages, as required by Athey.

7)    So too, however,
must the prognoses expressed by Drs. Kates and Quirke that because of the 2009
collision Mr. MacIntosh is now more vulnerable to future back injury because of
the aggravation of his pre-existing conditions caused by the 2009 collision.

8)    On balance,
having considered the totality of the evidence I consider reliable, I have concluded
that after consideration of the measurable risk of future back problems
inherent in Mr. MacIntosh’s “original” position but considering also the
increased risk of further exacerbation of his present post-accident condition
because of the defendants’ negligence in the 2009 collision, a reduction of 20%
of the award of damages that would otherwise appropriately compensate Mr.
MacIntosh for the injuries he has endured since October 2009 is necessary to
ensure that he is only compensated for the difference between his “original”
and his “injured” condition.

[75]        
In reaching all of those conclusions I have considered and rejected the
defendants’ submission that I should draw an adverse interest against Mr. MacIntosh
on both the issues of causation and the appropriate quantum of damages to be
awarded in this case because of his failure to call Dr. Gerard MacKenzie as a
witness or file his opinion.

[76]        
Although Dr. MacKenzie was on the plaintiff’s list of witnesses and was
not called to testify, he was available to be called by the defendants had they
chosen to avail themselves of the opportunity. Also, Dr. MacKenzie was not a
treating physician.

[77]        
In those circumstances I am not prepared to draw an adverse inference
against the plaintiff for the failure to tender evidence from Dr. MacKenzie.

[78]        
With all of those considerations in mind I now turn to my assessment of
the damages suffered by Mr. MacIntosh in the 2009 collision arising from the
defendants’ negligence.

VIII.        
ASSESSMENT OF DAMAGES

[79]        
As noted above, the damages claimed by Mr. MacIntosh arising from the
defendants’ negligence are with respect to:

1)    Non-pecuniary
damages for his pain and suffering and loss of enjoyment of life;

2)    Damages for his
loss of future income earning capacity;

3)    Special damages
primarily related to unpaid health care costs incurred by him prior to trial;
and

4)    Damages for the
costs of his future care which he says are necessitated by the lasting effect
of the injuries he suffered in the collision.

A.             
Non-pecuniary damages

[80]        
The purpose of non-pecuniary damages in personal injury cases is to
compensate the injured party for their pain and suffering, loss of enjoyment of
life and loss of enjoyment of amenities caused by the fault of a tortfeasor.

[81]        
In Stapley v. Hejslet, 2006 BCCA 34 [Stapley] at
para. 46, Kirkpatrick J.A. set out a useful, non-exhaustive list of
factors that offer guidance as to what may influence an award of non-pecuniary
damages. The list included the:

(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;

[82]        
Kirkpatrick J.A. went on to say:

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] B.C.J. No. 163 (QL), 2005 BCCA 54).

[83]        
With those considerations in mind I will now assess the compensation to
which I consider Mr. MacIntosh is entitled for his pain, suffering, and
loss of enjoyment of life for the injuries he suffered as a consequence of the
defendants’ negligence.

[84]        
Mr. Morishita on behalf of Mr. MacIntosh asserted that an appropriate
award of non-pecuniary damages in this case would be from $85,000 to $100,000
(without deduction for pre-existing conditions). In support of that submission
he referred me to the following decisions which assessed damages for similar
injuries: Clark v. Kouba, 2012 BCSC 1607; Paller v. Regan, 2012
BCSC 1672; and Witt v. Vancouver International Airport Authority, 2012
BCSC 1185.

[85]        
Mr. Yuen on behalf of the defendants suggested that an award in the
range of $40,000 (less deduction for his pre-existing back condition) would
adequately compensate Mr. MacIntosh for his injuries. In making that
submission he referred me to: Khalon v. Prasad, 2006 BCSC 2039; Costello
v. Rafique, 2010 BCSC 441; Olianka v. Spagnol, 2011 BCSC 1013; and Singh
v. Shergill, 2010 BCSC 323.

[86]        
Other cases are of some, but limited, assistance in determining an award
for non-pecuniary damages. Each person who endures a debilitating injury is
unique and the nature of the injuries suffered by plaintiffs and their life
circumstances will rarely be identical.

[87]        
The cases cited by counsel do, however, establish that for a serious
back injury such as that suffered by Mr. MacIntosh, especially with the
existence of chronic pain which is likely to continue for the rest of his life,
a substantial award will be necessary and appropriate to compensate for his
non-pecuniary losses.

[88]        
To that extent I find the cases relied upon by the defendants concerned
plaintiffs who had suffered less debilitating and less long-lasting injuries
than that which the evidence establishes Mr. MacIntosh has suffered to date and
will continue to suffer in future.

[89]        
I am thus satisfied that the evidence in this case supports an award of
damages for Mr. MacIntosh’s pain and suffering at a more substantial level
than that suggested by the defendants and the cases relied upon by their
counsel.

[90]        
I say that because:

1)    Mr. MacIntosh’s
testimony and that of the medical and lay witnesses establishes that although
injuries arising from the collision other than his low back injuries were
largely resolved within one year, the low back injuries suffered in the
collision have continued with only limited and sporadic abatement over time.

2)    I accept the
opinions of Drs. Kates, Quirke and O’Connor that Mr. MacIntosh’s condition
has now “plateaued” and will not likely deteriorate further, except for
occasional flare-up of more intense and debilitating pain.

3)    However, the
“plateau” which Mr. MacIntosh has reached renders him a far different person
than the one he was prior to the collision.

4)    Mr. MacIntosh’s
life in the four years since the collision has been dominated by the effects of
the collision as he has followed all of the medical advice he has received to
attempt to regain his health.

5)    While he has
continued to golf regularly, his enjoyment of the game is much lessened. He also
now golfs at significant rehabilitative cost and discomfort requiring much
ongoing physical therapy.

6)    In that regard,
while I note Dr. MacPherson’s opinion that the golfing exacerbates Mr.
MacIntosh’s condition, I also note that his treating physicians have encouraged
him to attempt to golf and undertake therapy as necessary to alleviate more
acute symptomology related to it.

7)    I accept that to
be a reasonable course of both advice and treatment because if Mr. MacIntosh
had to restrict his golfing more than he has done, the result would be a larger
award for non-pecuniary losses related to his ability to enjoy that which he
previously enjoyed before the collision.

8)    The medical “plateau”
at which Mr. MacIntosh now finds himself and which will likely endure for the
balance of his active life also includes an inability to exercise as rigorously
as he once did or hike with the enjoyment he once had. He is also far more
irritable due to sleep deprivation caused by his injuries. That has an impact
on his social life as he has become more reclusive than before.

9)    All of those
aspects of his present life significantly negatively impact his overall
enjoyment of life not only physically but also socially and emotionally. Coping
with and trying to ameliorate the lasting effects of those injuries now are the
focus of his daily life in place of the healthy and well-rounded physical,
emotional and social life he previously enjoyed.

[91]        
In all of the circumstances I find that an award of $90,000 would
appropriately compensate Mr. MacIntosh for his past, present, and future pain
and suffering and loss of enjoyment of life. By application of the 20%
reduction I have previously found to be necessary to compensate him only for
the change from his “original” position that arises from the defendants’
negligence, I award Mr. MacIntosh $72,000 to compensate him for his
non-pecuniary losses.

B.             
Loss of Future Income Earning Capacity

[92]        
In Perren v. Lalari, 2010 BCCA 140, our Court of Appeal settled
the question of how claims for lost impaired earning capacity can be addressed.
After a long discussion and review of different approaches that had been
applied in past cases, Garson J.A. stated for the court at para. 32:

[32] 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 usual employment. That was the
case in both Pallos and Parypa. 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.

[93]        
Counsel for Mr. MacIntosh submits that an award of from $150,000 to
$250,000 is necessary to compensate Mr. MacIntosh for his impaired earning
capacity based upon the impaired capital asset approach.

[94]        
Counsel for the defendants submits that Mr. MacIntosh has not proven
that he will suffer any future earnings losses on either a loss of earnings or
an impaired capital asset approach.

[95]        
In summary, the defendants base that argument on the propositions that:

1)    Since the
collision, the plaintiff has continued to work in his chosen field in the same
business that he began to operate in 1989 without proof of any past loss of
income before trial.

2)    It is unlikely
that that successful business or Mr. MacIntosh’s receipt of earnings from it
will change.

3)    Although Mr.
MacIntosh says he is doing less marketing, his business partner, Mr. Yoshida, now
does much of the same work and the company not only has many longstanding
clients but has gained new clients and likely increased its market share since
the collision.

4)    Mr. MacIntosh
has recently taken on a new paid position with an advisory board.

5)    Mr. MacIntosh
has no set date for retirement and is unlikely to quit or sell a successful
business that he has operated for more than 24 years.

6)    Mr. MacIntosh’s
work is largely sedentary, set in an office environment in which he mostly
manages the administration of his business rather than engage in field work,
most of which is sub-contracted to appraisers.

7)    Mr. MacIntosh can
control his own schedule by coming in to work later to accommodate his exercise
or physiotherapy needs.

8)    Mr. MacIntosh
has not hired anyone to do his work for him since the accident.

9)    Any future
inability to work would more likely be related to Mr. MacIntosh’s pre-existing
back condition than to the injuries he suffered in the collision.

[96]        
Although I do not accept that Mr. MacIntosh has suffered an impairment
of his earning capacity as great as that suggested by his counsel, I do not
agree with the defendants’ submission that he has suffered no loss.

[97]        
A useful discussion of the loss of an earning capacity as the loss of a
capital asset and the approach to be taken in assessing such a loss is found in
the our Court of Appeal’s decision in Rosvold v. Dunlop, 2001 BCCA 1 at paras.
8 to 11, in which the Court stated:

[8] The most basic of those principles is that a plaintiff is
entitled to be put into the position he would have been in but for the accident
so far as money can do that. An award for loss of earning capacity is based on
the recognition that a plaintiff’s capacity to earn income is an asset which
has been taken away: Andrews v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229; Parypa v. Wickware (1999), 65 B.C.L.R. (3d) 155 (C.A.).
Where a plaintiff’s permanent injury limits him in his capacity to perform certain
activities and consequently impairs his income earning capacity, he is entitled
to compensation. What is being compensated is not lost projected future
earnings but the loss or impairment of earning capacity as a capital asset. In
some cases, projections from past earnings may be a useful factor to consider
in valuing the loss but past earnings are not the only factor to consider.

[9] Because damage awards are made as lump sums, an award for
loss of future earning capacity must deal to some extent with the unknowable.
The standard of proof to be applied when evaluating hypothetical events that
may affect an award is simple probability, not the balance of probabilities: Athey
v. Leonati, [1996] 3 S.C.R. 458. Possibilities and probabilities, chances,
opportunities, and risks must all be considered, so long as they are a real and
substantial possibility and not mere speculation. These possibilities are to be
given weight according to the percentage chance they would have happened or
will happen.

[10] The trial judge’s task is to assess the loss on a
judgmental basis, taking into consideration all the relevant factors arising
from the evidence: Mazzuca v. Alexakis, [1994] B.C.J. No. 2128 (S.C.)
(Q.L.) at para. 121, aff’d [1997] B.C.J. No. 2178 (C.A.) (Q.L.). Guidance as to
what factors may be relevant can be found in Parypa v. Wickware, supra,
at para. 31; Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 126 (C.A.); and Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They
include:

[1] whether the plaintiff has been
rendered less capable overall from earning income from all types of employment;

[2] whether the plaintiff is less
marketable or attractive as an employee to potential employers;

[3] whether 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] whether the plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market.

[11] The task of the court is to
assess damages, not to calculate them according to some mathematical formula: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.).
Once impairment of a plaintiff’s earning capacity as a capital asset has been
established, that impairment must be valued. The valuation may involve a
comparison of the likely future of the plaintiff if the accident had not
happened with the plaintiff’s likely future after the accident has happened. As
a starting point, a trial judge may determine the present value of the
difference between the amounts earned under those two scenarios. But if this is
done, it is not to be the end of the inquiry: Ryder (Guardian ad litem of)
v. Jubbal, [1995] B.C.J. No. 644 (C.A.) (Q.L.); Parypa v. Wickware, supra.
The overall fairness and reasonableness of the award must be considered taking
into account all the evidence.

[98]        
In making his submissions as to the quantum of Mr. MacIntosh’s loss
under this head of damages, Mr. Morishita relied upon an historical analysis of
Mr. MacIntosh’s share of income from MacIntosh Appraisals Ltd. for the
years 2007 through 2012 in which Mr. MacIntosh received an average of $171,546
per year.

[99]        
That approach is flawed for at least two reasons:

1)    Inclusion of the
years 2007 and 2008 before the worldwide recession, which the evidence
establishes seriously hurt the real estate market in British Columbia as well
as the appraisal business, significantly distorts the company’s earnings when
compared to the more relevant period of years including the year of the
collision and the following three years. Mr. MacIntosh’s earnings in that more
relevant period averaged slightly less than $128,000.

2)    The suggestion
that the company’s earnings will now rebound to pre-recession levels is based
upon conjecture rather than reliable evidence.

[100]     I
accordingly find that to the extent the company’s past performance is a
relevant barometer of Mr. MacIntosh’s future earnings losses, yearly earnings
of approximately $128,000 should be considered, not the higher amount
postulated by Mr. MacIntosh.

[101]     Mr.
MacIntosh’s submissions also fail to give sufficient weight to his proven ability
to continue to earn income as he has done while injured, notwithstanding the toll
it has taken upon him and the extent to which it has affected the hours he
works and the extent to which he has been able to carry on marketing
activities.

[102]     His
submissions also do not sufficiently address the relatively short time which should
reasonably be considered in determining the length of time for which a future
loss of earning capacity should be assessed.

[103]     Mr.
MacIntosh is now almost 60 years old and while he had no retirement plans
before the collision and still has no specific ones, I am satisfied that age 70
is a likely pre-accident retirement age to consider when assessing Mr. MacIntosh’s
loss under this head of damages, not age 75 as suggested by him.

[104]     Having
said all of that, however, the defendants’ submission that Mr. MacIntosh
has suffered no loss fails to account for:

1)    The chronicity
of Mr. MacIntosh’s injuries.

2)    The limited
prospects for his recovery from them.

3)    The toll they
take on Mr. MacIntosh’s daily functioning at work, including the irritability
he now displays with staff.

4)    The effect of
that irritability upon his marketing efforts and client development, both of
which were his long suits and important to the continued growth of his
business.

5)    The extent that Mr.
MacIntosh must still miss work or adjust his hours to undertake the physiotherapy
sessions and exercise programs needed to sustain his ability to work.

6)    The effect of
lack of sleep upon all of Mr. MacIntosh’s work-related endeavours.

7)    The fact that
notwithstanding he and Mr. Yoshida share profits equally, Mr. MacIntosh
does not now share equally in the workload of the company.

[105]     Concerning
that last factor, Mr. Yoshida impressed me as not only a capable businessman
but also as one who has been unswervingly loyal to Mr. MacIntosh in helping him
through the difficult years since the collision. He did, however, acknowledge
that as the situation continues or if it worsens, adjustment to income sharing will
probably occur.

[106]     Mr.
Yoshida did not suggest that such an alteration would necessarily emanate from
him. It is more likely to occur because of Mr. MacIntosh’s own sense of
fairness which may well give rise to a change of profit distribution to account
for inequality in the sharing of work.

[107]     In
addition, Mr. MacIntosh has testified that his present lack of enjoyment of
work arising from his irritability and inability to contribute efforts equal to
those of Mr. Yoshida, may well lead to an earlier retirement than would
otherwise have been the case.

[108]     While that
evidence may be self-serving, given my assessment of Mr. MacIntosh’s
character, I find it to be credible.

[109]     Mr.
MacIntosh is not someone who will always take more than he is able to earn
through his own efforts to the disadvantage of his business partner and good
friend Mr. Yoshida.

[110]     In the
totality of the circumstances, I have concluded that the evidence supports an
award for Mr. MacIntosh’s impaired earning capacity of $130,000. That award
reflects not only the income the company has been able to earn on a yearly
basis but also addresses my assessment of the likelihood that Mr. MacIntosh’s
share of income will drop as he continues to be a less than equal contributor
to the company’s earnings, as well as my finding that he is now likely to
retire earlier than had the collision not occurred.

[111]     In making
that award I have also considered loss of earnings that could arise from
business losses or other causes unrelated to the collision that would not be
compensable, as well as the possible (but unlikely) potential that
Mr. MacIntosh could garner other more remunerative opportunities to earn
income.

[112]     That otherwise
appropriate award of $130,000 must be reduced by the 20% I have previously
found to be necessary to compensate him only for the change from his “original”
position that arises from the defendants’ negligence.

[113]     I accordingly
award Mr. MacIntosh $104,000 to compensate him for his loss of income earning
capacity.

C.             
Special damages

[114]     At the
conclusion of the evidence, in his written argument on behalf of Mr. MacIntosh,
Mr. Morishita submitted that an award of approximately $12,500 is necessary to
compensate Mr. MacIntosh for his out-of-pocket costs arising from his injuries
suffered in the collision.

[115]     All of
those costs, other than $817 related to housekeeping services provided by third
parties in the recent months before trial, were health-related costs.

[116]     Those
special damages now claimed as compensable health-related expenses are:

1)    Physiotherapy
(137 sessions): $5,765

2)    Active
rehabilitation (10 sessions): $150

3)    Massage therapy
(40 sessions from June 2012 to present): $4,032

4)    Psychological
interventions (2 sessions): $525

5)    Medication:
$284.10

6)    Fitness
equipment and expenses: $499

[117]     The
defendants accept that the active rehabilitation charges, psychological
interventions and medication in the amounts claimed were necessarily incurred
by Mr. MacIntosh as a consequence of the collision. They further accept
that $400 of the claimed fitness equipment and expenses should be reimbursed.

[118]     The
defendants do, however object to:

1)    Payment for
physiotherapy session other than the 42 sessions attended before September
24, 2010. They object to the balance of the 95 sessions claimed as being
“out of proportion to his injuries” and “not being medically necessary,”
because Dr. Quirke stated he was not aware of any treatments that would
definitely improve Mr. MacIntosh’s condition.

2)    Payment for any
massage therapy undertaken because: Mr. MacIntosh only started with massage
therapy three years after the collision and only at the suggestion of his
physiotherapist; massage therapy was not initiated by Dr. Kates, or any
other medical specialist; Dr. Quirke stated he was not aware of any treatments
that would definitely improve Mr. MacIntosh’s condition; and, Dr. O’Connor
did not recommend massage therapy and also stated that he considered it to be
“$100 Tylenol”. In the alternative, the plaintiffs submitted that 40 treatments
in a span of 15 months “is excessive and unreasonable”.

3)    The costs of
fitness equipment and fitness-related expenses of $100 not agreed to by the
defendants were expenses related to the need for different equipment,
necessitated by a downsizing of Mr. MacIntosh’s home to an apartment, not
the collision;

4)    Housekeeping
services were not recommended by a doctor and should not be paid for since, before
downsizing, Mr. MacIntosh and his wife were able to cope with a larger
home without help.

[119]     The
defendants’ submission concerning the need for any special damages to not only
be medically recommended or necessary but also capable of improving a plaintiff’s
condition before they would be compensable also permeated their submissions
concerning Mr. MacIntosh’s claims for the cost of his future care.

[120]     Given the
importance of those submissions to both the special damages and the cost of
future claims made by Mr. MacIntosh, I requested written supplemental
submissions from counsel for both parties on the issues raised by the
defendants.

[121]    
In his supplemental submissions filed on behalf of Mr. MacIntosh, Mr. Morishita
referred to the following excerpts from the recent decision of Saunders J.
in Redl v. Sellin, 2013 BCSC 58 [Redl]:

[55] Generally speaking, claims for special damages are
subject only to the standard of reasonableness. However, as with claims for the
cost of future care (see Juraski v. Beek, 2011 BCSC 982; Milina v.
Bartsch (1985), 49 BCLR (2d) 33 (BCSC)), when a claimed expense has been
incurred in relation to treatment aimed at promotion of a plaintiff’s physical
or mental well-being, evidence of the medical justification for the expense is
a factor in determining reasonableness. I accept the argument expressed through
Dr. Frobb, that a patient may be in the best position to assess her or his
subjective need for palliative therapy. I also accept the plaintiff’s counsel’s
argument that in the circumstances of any particular case, it may be possible
for a plaintiff to establish that reasonable care equates with a very high
standard of care. In the words of Prof. K. Cooper-Stephenson in Personal
Injury Damages in Canada, (2d ed., 1996) at p. 166:

Even prior to the Supreme Court’s endorsement of the
restitution principle [in Andrews v. Grand & Toy Alberta Ltd. and Arnold
v. Teno], in the area of special damages the courts had been prepared to
allow optimum care, and damages were awarded for expenses of a character that
stretched far beyond the resources of even an affluent Canadian.

That being said, and while Dr.
Frobb’s paradigm of the patient becoming their own physician may have at least
a superficial appeal, plaintiffs are not given carte blanche to undertake
any and all therapies which they believe will make them feel good.

[122]    
In addition to Redl, Mr. Morishita referred me to the
earlier decision of Powers J. in Clark v. Kouba, 2012 BCSC 1607 at para. 95
in which she observed:

[95] A schedule of special
damages set out the amounts with supporting receipts that were paid for and
were pursued by Ms. Clark as a result of the accident. Although some of those
expenses have not proven to be successful and are not now recommended by Dr.
Armstrong, I accept that they were genuinely pursued and judged to be
reasonably necessary by Ms. Clark and her treating physicians, in an attempt to
obtain pain relief from the accident. I have also considered that some of the
chiropractic and massage therapy pursued by Ms. Clark may have been required in
any event as part of her running tune ups, as she was pursuing long distance
running since the accident.

[123]    
Following receipt of the plaintiff’s submissions, in his written
supplemental submission delivered on behalf of the defendants, Mr. Yuen
retracted the submission that only special damages which cure a condition ought
to be awarded.

[124]    
The defendants still, however, asserted that not only is medical
necessity a major factor in awarding special damages, but also that the cost of
passive treatment should rarely be allowed.

[125]    
In doing so, Mr. Yuen relied upon the decision of Melnick J. in Costello
v. Rafique, 2010 BCSC 441 at para. 27, where he stated:

[27] I have no doubt that Mr.
Costello has relied excessively on the relief he believes he experiences from
passive therapy. To date he has apparently not been dissuaded from that belief
by any member of the medical profession. Because he has relied for years on
such passive therapy he may have just continued with his past practice. That
said, there is a limit to which a defendant should be responsible for
treatments where the court is not satisfied they were medically required, even
if no one suggested otherwise. A defendant will not be liable for excessive or
unnecessary treatments. In all the circumstances, I award Mr. Costello $5,000
for compensation for physiotherapy and massage therapy. In my view this amount,
approximately 35% of his claim, is reasonable in the face of the nature and
extent of his injuries from the motor vehicle accident and likely even somewhat
generous.

[126]     In his
supplemental submissions Mr. Yuen also continued to assert that Mr. MacIntosh’s
resort to physiotherapy and massage treatment to the extent he has in seeking
to obtain relief from his injuries was unreasonable.

[127]     Having
reviewed all of the authorities to which I was referred, I have concluded that
Saunders J.’s decision in Redl encapsulates the considerations
which should bear upon the assessment of Mr. MacIntosh’s special damages claims
in this case.

[128]     In summary,
I am satisfied that when assessing special damages the standard is the
reasonableness of the expense claimed in the context of the injuries suffered.
Medical justification for any expense is a factor to be considered, but not the
only one. Subjective factors can also be considered including whether the
plaintiff believed the treatments were reasonably necessary.

[129]     Applying those
considerations to the still-disputed claims of special damages, I am satisfied
that:

1)    Physiotherapy
treatments. The physiotherapy treatments taken by Mr. MacIntosh were
taken throughout on the advice of his treating physician Dr. Kates, and
appeared to be helping him throughout. The defendants’ complaint about the
unreasonableness of the number and duration of the physiotherapy treatments
undertaken is at odds with the ongoing conditions Mr. MacIntosh was seeking to
alleviate. Had Mr. MacIntosh not done so, it is entirely likely that his
non-pecuniary losses would have been greater due to unalleviated pain and
suffering. I allow Mr. MacIntosh’s claim for past physiotherapy treatments in
the amount of $5,765 as presented.

2)   
Massage treatments. The massage treatments undertaken by
Mr. MacIntosh should also be allowed as special damages. They were taken
on the advice of his treating physiotherapist and were known to Dr. Kates who
did not recommend against them. They also offered relief that allowed Mr. MacIntosh
to participate more fully in the activities (primarily golf) that he enjoyed
before the collision. Mr. MacIntosh’s subjective belief in the benefits of
the massage treatments undertaken by him is also medically supported by the
evidence of the psychiatrist Dr. Mok, who stated in his medical legal opinion:

It also seems to me that he has already exhausted his own
personal coping mechanisms in terms of dealing with grief and loss of his
physical functioning, as well as chronic pain. I am in agreement that he will
require maintenance physical fitness and conditioning exercises and treatment
to keep his body on track, and certainly recommend that he should continue with
his current exercise program, and that he should continue seeing his
physiotherapist/personal trainer and his registered massage therapist at the
current intervals for maintenance treatment, as further worsening of his
chronic pain complaints will have detrimental effects his mood and sleep.

Having said all of that,
however, I do find that the cost of massage therapy claimed based upon 40 sessions
in about 15 months is not reasonable given its limited medical usefulness.
I allow this claim in the amount of $3,000, based upon approximately two
sessions per month.

3) Fitness equipment. The
$100 fitness equipment issues remaining in dispute concern the purchase of a
stability ball and a “grumbler”. The medical evidence is replete with
recommendations that Mr. MacIntosh continue an exercise regime and he has
done so assiduously while also incurring out of pocket costs that he considered
necessary to relieve the pain and suffering caused by the defendants’ negligence.
I find that the disputed $100 for fitness equipment was a reasonable
expenditure which has benefitted both the plaintiff in ameliorating his
suffering and to that extent also benefitted the defendants who are responsible
for his losses. In result, I award the total sum of $499 for fitness equipment
and related expenses.

4) Housekeeping services.
I find that the evidence as a whole supports Mr. MacIntosh’s claim for
$817 for housekeeping services. I accept Mr. MacIntosh’s evidence that he
has difficulty in washing windows and doing vacuuming which he had done before
the collision because of his wife’s injuries. Dr. Quirke’s evidence also
supports Mr. MacIntosh’s need for housekeeping assistance. The defendants’
submission that because housekeeping services were not engaged before Mr. MacIntosh
downsized the previous family home and because his wife is still an
accomplished equestrian do not persuade me to the contrary.

[130]     In result,
I am satisfied that a total award of $10,567 is necessary to compensate Mr.
MacIntosh for the special damages he has incurred. That award must, however, be
reduced by 20% because of his pre-existing low back condition, resulting in an
award of $8,454.

D.             
Cost of Future Care

[131]     Many of
the factual and legal issues which I have discussed in determining the
necessary award to compensate Mr. MacIntosh for the special expenses he has
incurred since the collision are also relevant to the determination of the
award to which he is entitled for the cost of his future care for which the
defendants are liable.

[132]     Recently,
in Gignac v. Insurance Corporation of British Columbia, 2012 BCCA 351 [Gignac],
our Court of Appeal reviewed principles that govern the assessment of cost of
future care awards.

[133]    
In Gignac at paras. 28-30, Bennett J.A., for the Court, stated:

[28] In Andrews v. Grand & Toy Alberta Ltd.
(1978), 83 D.L.R. (3d) 452 at 462, Dickson C.J.C. said:

In theory a claim for the cost of future care is a pecuniary
claim for the amount which may reasonably be expected to be expended in putting
the injured party in the position he would have been in if he had not sustained
the injury. Obviously, a plaintiff who has been gravely and permanently
impaired can never be put in the position he would have been in if the tort had
not been committed. To this extent, restitutio in integrum is not
possible. Money is a barren substitute for health and personal happiness, but
to the extent, within reason, that money can be used to sustain or improve the
mental or physical health of the injured person it may properly form part of a
claim.

[29] The purpose of the award for
costs of future care is to restore, as best as possible with a monetary award,
the injured person to the position he would have been in had the accident not
occurred.

[30] The award is “based on what
is reasonably necessary on the medical evidence to promote the mental and
physical health of the plaintiff: (Milina v. Bartsch (1985), 49 B.C.L.R.
(2d) 33 (B.C.S.C.) and adopted in Aberdeen v. Zanatta, 2008 BCCA
420 at para. 41.

[134]    
Bennett J.A. also went on to state at para. 32:

[32] The failure of the trial
judge to perform an analysis of each item sought by the plaintiff with respect
to whether there was “some evidentiary link between the physician’s assessment
of pain, disability and recommended treatment and the care recommended by a
qualified health professional” was a legal error.

[135]     In this
case, Mr. MacIntosh seeks an award for the following “one-time” and “ongoing”
costs of his future care that he says are reasonably necessary on the medical
evidence to promote his mental and physical health as a consequence of the
defendants’ negligence:

1)    One-time costs:

2)   
Ongoing costs:

[136]     The
defendants dispute the future care costs claimed by Mr. MacIntosh are all
medically necessary and reasonable.

[137]     They say
that his total future care award should be limited to $1,724, comprised of:
psychology costs of $800 (eight sessions at $175 per session); $284 for
medications (for the next four years); and, physiotherapy of $840 (12 sessions
at $70 per session.

[138]     In making
those submissions the defendants relied for the most part on the same alleged lack
of medical support or recommendations for the further care postulated by Mr. MacIntosh
that they relied upon in disputing his claims for special damages.

[139]     More
specifically, they asserted that:

1)    Housekeeping
services are not necessary because they were not a cost incurred before
downsizing and have not been established as being medically necessary.

2)    Attendance at a
chronic pain clinic is not necessary if the eight psychology sessions accepted
by the defendants in addition to the four already attended by Mr. MacIntosh are
reimbursed and also because further treatment can be sought by way of a medical
referral from his family doctor if needed. Further, no doctor “in the field of
musculoskeletal injuries” has recommended attendance at a pain clinic.

3)    The medication
costs sought by Mr. MacIntosh are excessive because of the duration for which
they are sought and when compared to the costs he has incurred for medication
in the four years before trial. The defendants also submit that his present
medical conditions and needs for medication do not fit “with the normal
progression of these types of injuries,” so that any need for them should be
attributed to his pre-existing injuries rather than the injuries suffered in
the collision.

4)    Because
physiotherapy is only medically recommended for flare-ups and psychological
well-being and will not make him any better, only a further 12 sessions would
be reasonable.

5)    Further massage
treatment is neither recommended nor reasonable because other methods of pain
relief can be utilized at a much lower price.

6)    There is no need
for a yearly gym/pool membership because Mr. MacIntosh has always been
very active and has done and can continue to do exercises at home with the
equipment he has there as well as walk and golf to keep fit.

[140]     Having
considered the totality of the evidence, I reach the following conclusions with
respect to the appropriate cost of future care which the medical evidence
establishes as being reasonably necessary to promote Mr. MacIntosh’s mental and
physical health:

1)    Medication
(Total $10,205) comprised of:

a)  $1,328
for Celebrex (for one year only) due to Dr. O’Connor’s hope to be able to wean
Mr. MacIntosh off anti-inflammatories and on to Tramadol;

b)  $1,575
for Nortriptylene as recommended by Dr. O’Connor, but only to age 65 because
there is no evidence that it will be needed for the whole of Mr. MacIntosh’s
lifetime and also to account for post-accident factors related to aging and
natural reduction of physical activity, as well as the possibility of some
improvement;

c)  $7,302
for Tramadol as recommended by Dr. O’Connor, but also only to age 65 for the
same reasons as the limitation on the period for which Nortriptylene is
allowed.

In reaching these conclusions
I reject the defendants’ assertions that Mr. MacIntosh’s future medication
needs should be based upon his past use of over-the-counter painkillers and
painkillers with codeine which Dr. O’Connor has specifically now
discouraged, giving rise to his present recommendations. Also, the defendants’
submission that the present need for medication does not fit “with the normal
progression of these types of injuries” is without evidentiary foundation.

2)    Physiotherapy at
a total amount of $8,000. Although recommended by both Drs. Kates and Mok, I
have reduced the claimed amount from 32 to 15 sessions per year at $70 per
session and made allowance only to age 65 which I consider to be a more
realistic age at which to anticipate a natural reduction in physical activity
requiring physiotherapy intervention for either Mr. MacIntosh’s mental or
physical health. The defendants’ submission that only 12 further lifetime
sessions are medically necessary is without evidentiary foundation.

3)    Massage therapy
at a total of $2,500 for approximately 25 sessions in total over the next
three years due to the recommendations of Dr. Mok. I am satisfied that extensive
sessions beyond that time are not medically necessary since newly instituted adjustments
to his medications, as well as psychological counselling should reduce the need
for continued massage therapy beyond the amount awarded for him to be able cope
with the mental aspects of his pain and suffering.

4)    Psychological
services of $2,000 in place of attendance at a chronic pain clinic because of
Dr. Mok’s evidence that both psychological counselling to deal with the effects
of pain on Mr. MacIntosh’s well-being and attendance at a pain clinic are not
necessary. I have increased the amount from $800, agreed to by the defendants
(which is not an amount in keeping with Dr. Mok’s evidence), to $2,000 to
reflect the chronicity of Mr. MacIntosh’s suffering and the relatively
late start in obtaining counselling for its effects.

5)    Homemaking
services of $11,000 as claimed on the basis of the evidence of Dr. Quirke and
the assumption that, unlike physiotherapy and massage which will be needed less
as Mr. MacIntosh’s physical activity decreases with age, his need for
assistance with daily living attributable to the collision will continue at
least until age 70. I specifically reject the defendants’ assertions that
homemaking assistance is neither medically unnecessary nor reasonable, for the
same reason I rejected them when considering Mr. MacIntosh’s special damages
claim.

6)    Gym/Pool
memberships at a total of $2,500 to age approximately 70, to continue with an
optimum exercise program until that age to allow Mr. MacIntosh to fulfil
the continued medical recommendations of all doctors concerning the benefits of
exercise for his well-being and to account for his now limited ability to hike
for exercise. The defendants’ submission that Mr. MacIntosh should
“make-do” with his prior walking regime and golfing for cardio exercise is not
supported by the medical evidence.

[141]     In
summary, I find that a total award for Mr. MacIntosh’s future care costs in the
amount of $36,205 is both supported by the medical evidence and necessary for
his mental and physical well-being. That amount must be reduced by 20% to
reflect Mr. MacIntosh’s “original” position as previously discussed.

[142]     I
accordingly award Mr. MacIntosh $28,964 for the costs of his future care caused
by the defendants’ negligence.

IX.           
SUMMARY OF AWARDS

[143]     In result,
Mr. MacIntosh is entitled to payment by the defendants of the following amounts
for the damages he has suffered as a consequence of their negligence.

1)    Non-pecuniary
damages: $72,000;

2)    Loss of earning
capacity: $104,000;

3)    Special damages:
$8454

4)    Cost of future
care: $28,964.

Total: $213,418.

X.             
COSTS

[144]     Unless
there are matters of which I am unaware which may require further submissions
the plaintiff is entitled to recover his assessable costs and disbursements throughout
related to this proceeding.

“Davies
J.”