IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140108

Docket: M126794

Registry:
New Westminster

Between:

James
Dean Maltese

Plaintiff

And

Krishneel
Pratap

Defendant

Before:
The Honourable Mr. Justice Kelleher

Reasons for Judgment

Introduction

[1]            
This trial concerns the action of James Maltese for damages arising out
of a motor vehicle accident.  The accident occurred on November 12, 2008. 
Liability has been admitted by the defendant, Krishneel Pratap.  The only issue
is the measure of damages to be awarded to the plaintiff.

[2]            
The accident occurred on Hastings Street in Burnaby.  The plaintiff was
proceeding east, driving home from a Vancouver Canucks hockey game.  His uncontradicted
evidence is that the defendant was driving northbound on Rosser Street and
failed to stop at the intersection with Hastings Street.  The defendant struck
the passenger side of the plaintiff’s vehicle in a T-bone fashion.

[3]            
After the accident, Mr. Maltese did not go to the hospital or
receive attention from ambulance personnel.  He was able to drive home.

Pre-Accident Circumstances

[4]            
Mr. Maltese was 44 years old when the accident occurred.  He
started working at Shaw Cable in 2001 and had been a technical field
representative there since approximately 2003.  This is a union position.  Mr. Maltese
said it was an enjoyable and well-paying job.

[5]            
The position involved being paid on a “per call” or “piece work” basis. 
The work consisted of attending at customers’ homes to install cable, internet
or telephone service.  A technical field representative also received bonus or
commission pay if she or he was able to sell the customer other services.

[6]            
Mr. Maltese was in a long-term, common-law relationship with Lisa
Hughes at the time.  They have two children, a son and a daughter.  They owned
a home in Port Coquitlam and recreational property on Hatzic Lake.

[7]            
Mr. Maltese testified that he enjoyed hockey, softball, golf,
biking and water sports, such as waterskiing, wakeboarding and surfing.  He
played on two different hockey teams.

[8]            
Hockey was, and is, important to Mr. Maltese.  He is a participant,
enjoys watching it and coaches his son’s hockey team.

[9]            
Mr. Maltese testified that he was in good health at the time of the
accident.  However, he did receive some serious injuries in a motor vehicle
accident in 1988 in Alberta.  He suffered a broken right femur, a partially
collapsed lung and injuries to both knees.

[10]        
He has also endured two work-related injuries: a slip and fall in 2004
and a strain in 2007. He received Workers’ Compensation benefits.

[11]        
Mr. Maltese’s evidence is that he was not having any ongoing symptoms
from any of these prior injuries at the time of the accident. In conjunction
with the medical evidence, I am inclined to accept this point.

Plaintiff’s Condition After the Accident

[12]        
Mr. Maltese testified he felt a “little stiff” when he got home on
the evening of the accident.  He said he was “extremely stiff” the following
morning.  He did not go to work.  He had dull pain in his neck and lower back. 
He found bending to be awkward and uncomfortable.  He also injured his left
shoulder.

[13]        
Mr. Maltese saw his physician two days after the accident.  Dr. Texeira
diagnosed:

1.       low back strain;

2.       post-traumatic migraine headache;

3.       abdominal tenderness;

4.       dizziness; and

5.       post-traumatic stress
disorder.

[14]        
Dr. Texeira advised Mr. Maltese to stay off work for one week
and try massage therapy.  He was prescribed medication: an anti-inflammatory
and a muscle relaxant.

[15]        
Mr. Maltese was in fact off work for approximately 7 months.  He
saw his physicians on November 17 and 26.  Dr. Chan, who is his regular
physician, saw him on the latter date.  He found the plaintiff to have suffered
neck and back soft tissues strain, tension headaches, decreased short-term
memory, moodiness and abdominal pain.  The plaintiff was advised to continue
massage therapy and try physiotherapy.

[16]        
Mr. Maltese saw his physicians some 10 times between December 2008
and November 2009, approximately once a month.

[17]        
On August 17, 2009, Dr. Chan noted that the plaintiff’s symptoms
were not improving over time.  He advised Mr. Maltese to begin an active
rehabilitation program with a kinesiologist.  Mr. Maltese did not do so. 
He reported to Dr. Chan that he could not set up appointments due to his
busy work schedule.

[18]        
Mr. Maltese also encountered emotional difficulties.  On November
23, 2009, Dr. Chan prescribed him Pristiq, an anti-depressant.

[19]        
Mr. Maltese, although he testified that his symptoms did not
improve over time, did not see his physician again until January 27, 2011, and
not again until November 20, 2012.

[20]        
In November 2012, he complained that he still suffered neck and back
pain every day, most of the time.  He described his pain as a dull ache which
worsened with activities.  He never got into an active rehabilitation program.

[21]        
Mr. Maltese testified about the emotional effect of the accident on
his self-esteem.  In his words, he went from being an “alpha male” and the breadwinner
for his family to “virtually nothing”. His financial situation began to stress
him out.  He became moody and angry and his relationship with his partner
deteriorated.

[22]        
In the spring of 2009, Mr. Maltese was in a depressed state of mind.  He
and his partner were not spending time together.  During the weeks the children
were with Ms. Hughes, he stayed at the Hatzic Lake property.  He conceded that he
consumed excessive amounts of alcohol during these stays.

[23]        
Mr. Maltese testified that he had planned to be a technical field
representative until his retirement.  The job was well-paying and flexible.  It
was also near his home.

[24]        
Mr. Maltese returned to work on or about May 19, 2009, as a sales
representative with Shaw Cable. The income is lower, the hours are less flexible
and his commute is longer. He said with the lower pay and the breakup of his
relationship with Ms. Hughes, his retirement looks bleak.

[25]        
Mr. Maltese and Ms. Hughes separated in April 2011.  He
attributes the failure of this relationship to have been caused by: first, the
effect of the medication on his mood, and second, the effect of the accident on
his financial status.

[26]        
The plaintiff said that massage therapy was “pretty decent”.  He felt
that physiotherapy was unhelpful and made his pain worse.  He tried
chiropractic treatment, but found it to be worse than physiotherapy.

[27]        
The plaintiff was asked in cross-examination about the recommendations
of several physicians that he engage in an active rehabilitation program with a
kinesiologist.  Mr. Maltese’s response was that he did not recall such a
recommendation.  He said that caregivers speak too quickly so he does not
always grasp what is said.  I do not accept that evidence.

[28]        
Mr. Maltese’s view is that the accident is what caused the
disruption to his relationship with Ms. Hughes and, more specifically, the
financial losses that he has suffered.  However, the evidence shows his
finances appear to have been difficult even before the accident.  There was
considerable overhead with the recreational property.  He withdrew approximately
30% of his Registered Retirement Savings Plan in the months immediately
preceding the accident in 2008.

[29]        
Indeed, it is difficult to gain an understanding of the plaintiff’s
financial state, both before and after the accident.  He rents out part of his
house where he lives; however, he was quite evasive about the rent he
receives.  Moreover, he has not filed income tax returns for the last three
years.  He receives income in the form of a small Alberta Workers’ Compensation
pension from his 1988 injury, yet it is not reported as income in his 2006
return.

[30]        
Mr. Maltese’s evidence is that his former job was far superior to
the non-union position he now holds.  But he agreed in cross-examination that
the new position has a pension plan and a share purchase plan.

[31]        
Mr. Maltese continues to experience ongoing pain and discomfort in his
neck and lower back.

Medical Evidence

Dr. Chan

[32]        
Dr. Paul Chan is Mr. Maltese’s treating physician.  He testified
that Mr. Maltese saw him on many occasions in the year or so following the
accident, but only once in each of 2010, 2011 and 2012.  By the start of the
trial in October 2013, he had not seen Mr. Maltese this year.

[33]        
On November 26, 2012, Mr. Maltese reported to Dr. Chan that his neck
and back pain persisted.  He denied being depressed at the time of the visit
and did not want to take any more anti-depressant.

[34]        
Dr. Chan summarized his conclusions at that time:

In summary, Mr. Maltese suffered:

(1)        neck
and back (thoracic, lumbar, and sacral spine regions) soft tissues strain;

(2)        tension
headaches;

(3)        decreased
short-term memory and moodiness (probably secondary to insomnia and stress);

(4)        abdominal
pain (probably secondary to stress and/or Naprelan); and

(5)        clinical
depression (a major depressive episode) as a result of the MVA that occurred on
November 12, 2008.

[35]        
He also described treatments and a prognosis:

Mr. Maltese’s treatments included:

(1)        medications:
Naprelan, Flexeril, Prevacid, Imovane, Celebrex, Tylenol, Advil, and Pristiq;

(2)        massage therapy;

(3)        physiotherapy;

(4)        counseling by a psychologist; and

(5)        chiropractic treatment.

With treatments, Mr. Maltese’s symptoms had improved
over time but they had persisted.

Due to the fact that it has been more than four years now
since the motor vehicle accident, Mr. Maltese’s prognosis is guarded and
complete resolution of his symptoms is doubtful.  He will probably have
persistent pain in his neck and back, and decreased short-term memory as a long
term consequence of the MVA that occurred on November 12, 2008. However,
his symptoms may improve further (or even disappear) if he can be enrolled in
an active rehabilitation program guided by a kinesiologist. He will also
benefit from seeing a rehabilitation specialist for additional treatment such
as local steroid injections.  As for his emotional symptoms, it is my opinion
that he should resume counseling by a psychologist and that he may benefit from
taking Pristiq again.

[Emphasis added.]

[36]        
Dr. Chan reported that on August 17, 2009, ten months after the
accident, he advised the plaintiff to enroll in an active rehabilitation
program with a kinesiologist.  Mr. Maltese did not do this.  He said his
busy work schedule precluded it.

[37]        
Further, Dr. Chan’s report suggests Mr. Maltese’s attendance at massage
therapy, physiotherapy and chiropractic appointments since the accident was, at
times, sporadic.

Dr. Kokan

[38]        
Dr. Paul Kokan is an orthopaedic surgeon.  On May 20, 2009, he
conducted an independent medical examination of Mr. Maltese at the request of
the defendant.  Dr. Kokan reported:

I believe the Plaintiff still has soft tissue pain in the
neck and back when exposed to physical activities.  The development of
psychological illness probably has contributed to slow recovery and his current
symptoms in his spine.

[39]        
He went on:

I believe that there is no medical contraindication to the Plaintiff
gradually returning to his work.  Initially he should be on light duties and
with the passage of time I expect that with an appropriate rehabilitation
exercise program he will improve to the point where he will be able to return
back to his previous job as a technical field representative, within two to
three months.

Based on the information I have at this time, I do not expect
any permanent disability arising from this car accident.

[40]        
Dr. Kokan said this about future treatment:

The Plaintiff would benefit from being provided with the
services of a kinesiologist. After about 10 sessions he is expected to be
able to self administer those rehabilitation exercises.  Once he is on his own
the kinesiologist could review his rehabilitation exercise program at three
weekly intervals, in case there is some modification in the exercise routine
required.

[Emphasis added.]

Dr. Dost

[41]        
Dr. Rehan Dost is a neurologist who conducted an independent
medical examination of the plaintiff on June 5, 2012.  He concluded there was
no traumatically based neurological impairment or diagnosis.  There is no
dispute between the parties in this regard.

Dr. le Nobel

[42]        
Dr. John le Nobel assessed the plaintiff on February 3, 2010, at
the request of plaintiff’s counsel.  In his report dated April 10, 2010, he
expressed the following diagnosis:

It is now over one year and two months since the November 12,
2008 motor vehicle accident.  Based on the time elapsed since being injured, my
diagnoses is of a chronic pain condition (a chronic pain condition is one which
persists for longer than tissue healing is generally felt to require.  Tissue
healing is generally felt to occur within 10 to 12 months of injury).  He has
neck and low back pain which I diagnose as mechanical spinal pain (mechanical
pain is pain felt primarily in the spinal column, at times referred from the
spinal column to the limbs, made worse by changes in posture and changes in
position.  The understanding is that mechanical spinal pain is generated in
injured structures in and near the spinal column).

[43]        
Dr. le Nobel made a number of recommendations in his report.  They
centered on active rehabilitation:

I recommend that James Dean Maltese participate in an
active reconditioning programme with the supervision of a kinesiologist. I
recommend he have access to pain reducing measures during such an active
reconditioning programme.  I recommend that the active reconditioning program
be individually tailored to the physical requirements of his work and
recreational pursuits.  I recommend allowance for a program in the range of 6 to
8 months or possibly longer if he has not plateaued in that time.  Further
review after completion of such a program may help in regard to a more
definitive prognosis.  He will be subject to increases in his pain level from
time to time with carrying out such an active exercising programme.  In order
to help reduce the chances that such increases in pain prevent him continuing
with the active exercise programme, he should have access to medications and
physical therapy treatments. … It is, however, possible that with trying to
increase his activity level, James Maltese may experience intolerable increases
in his pain to the point that the active rehabilitation program has to be
abandoned.

[Emphasis added.]

[44]        
Dr. le Nobel saw the plaintiff again on April 10, 2012, two years
later.  He updated his diagnosis:  he diagnosed Mr. Maltese’s spinal pain as
mechanical spinal pain; headaches as cervicogenic headache or pain referred to
his head from the cervical spine; and deconditioning on account of his reduced
activity level and reduced activity tolerance since November 12, 2008.  He said
the following about the plaintiff’s conditioning:

James Maltese has not been exercising to maintain his
physical fitness and has felt unable to schedule regular fitness reconditioning
activities. Such regular fitness reconditioning would be the first step in
trying to improve his activity tolerance and return to his previous job as a
technical field representative.  He indicates time constraints as a barrier to
active fitness rehabilitation.  He reports there has been some reduction in his
time constraints in that his son’s hockey schedule has reduced.

[Emphasis added.]

Dr. O’Shaughnessy

[45]        
Dr. Roy O’Shaughnessy, a psychiatrist, conducted an independent
medical examination at the request of plaintiff’s counsel. Dr. O’Shaughnessy
conducted a psychiatric interview on January 28, 2011, and reviewed the
plaintiff’s medical records which were provided to him.  In his report of
February 1, 2011, he wrote:

Diagnostically, [the plaintiff] meets the criteria for the
following:

1.         Adjustment Disorder with depressed mood.

2.         Possible sleep apnea.

3.         Post-Traumatic
Stress Disorder (distant) with some residual symptoms.

4.         Alcohol abuse.

[46]        
Dr. O’Shaughnessy did not feel sleep apnea or post-traumatic stress
disorder were related to the accident.  However, he said this about the
adjustment disorder:

…In this situation, I think the car accident was a
significant stressor, leading both to pain and aggravation of sleep disturbances
as well as financial stress.  I do not get the impression that he suffered
significant anxiety directly from the accident itself; i.e. he did not
experience recurrence of PTSD or onset of new PTSD symptoms.  It is clear,
however, that from the outset he was experiencing problems with irritability,
depressed mood, and insomnia well documented in Dr. Chan’s records.  In my
view, this is a direct consequence of the accident.

[47]        
Dr. O’Shaughnessy recommended counselling, the ongoing use of
Pristiq and refraining from alcohol consumption.

Dr. Travlos

[48]        
Finally, Mr. Maltese was seen by a physiatrist, Dr. Andrew Travlos,
for an independent medical examination at the request of the defendant.  The
evaluation took place on November 1, 2012.

[49]        
Dr. Travlos diagnosed neck and upper back pain of soft tissue
origin and lower back pain which is mechanical in nature.  Dr. Travlos
made these recommendations:

Treatment for the mechanical back pain and in the upper
body really does entail a structured conditioning program. Mr. Maltese
is overweight and could certainly do with some pound loss and improved
fitness.  This should positively impact on his symptoms. To that end, I would
recommend that Mr. Maltese get himself into a local community centre or gym.
Although he could exercise at home, I have found that patients with
longstanding pain symptoms who exercise at home do not really exercise
effectively. When they are in the gym, they are there just to exercise and
there are no other distractions. …  Once he has been doing his own program for
six to eight weeks and his fitness level has improved, then I would recommend
that he start working with a trainer in the gym over some 12 to 15 sessions.

[Emphasis added.]

[50]        
Dr. Travlos also recommended stretching, perhaps with yoga, as well
as overall weight loss in order to assist Mr. Maltese in getting better.

Mitigation

[51]        
The plaintiff is under a duty to mitigate, that is, to take reasonable
steps to minimize his loss.  The defendant bears the onus of proving the
plaintiff could have avoided all or a portion of his loss.

[52]        
When doctors recommend treatment and the advice is not followed, the
defendant must prove: first, that the plaintiff acted unreasonably in not
taking the treatment, and second, the extent to which the plaintiff’s damages
would have been reduced.  See: Chiu v. Chiu, 2002 BCCA 618 at para. 57;
Janiak v. Ippolito, [1985] 1 S.C.R. 146 at 166-72.

[53]        
In Gregory v. Insurance Corporation of British Columbia, 2011
BCCA 144 at para. 56, the Court of Appeal recently wrote:

[56]      I would describe the mitigation test as a
subjective/objective test.  That is, whether the reasonable patient, having all
the information at hand that the plaintiff possessed, ought reasonably to have
undergone the recommended treatment.  The second aspect of the test is “the
extent, if any, to which the plaintiff’s damages would have been reduced”
by that treatment.

[Emphasis in original.]

[54]        
On the facts of that case, the Court of Appeal found the trial judge
erred in holding there had been a failure to mitigate:

[58]      … The physicians testified only that [cortisone]
was a reasonable treatment to try, and it might afford some relief.  In my
view, such an opinion does not meet the threshold for reducing an award as
described in Chiu.

[55]        
The facts of this case represent a textbook example of a failure to
mitigate.  There is a consensus among the professionals who assessed and
treated the plaintiff that Mr. Maltese needed to undertake a program of
physical rehabilitation and fitness with a kinesiologist or personal trainer. 
Their recommendations are remarkably similar.  Mr. Maltese has chosen to
ignore them.

[56]        
In Latuszek v. Bel-Air Taxi (1992) Limited, 2009 BCSC 798, the
plaintiff’s award for non-pecuniary damages was reduced by 40% for a failure to
mitigate. Madam Justice Stromberg-Stein (as she then was) found that the
plaintiff did not comply with the recommendations for an exercise regime:

[85]      There is a duty at law to take reasonable steps to
minimize your loss, particularly where, as here, conservative treatments have
been recommended. … Dr. Jaworski recommended exercises in the pool and gym and
brisk walking.  Mr. Latuszek says he swam once in a while, but he did not go to
the gym or do brisk walking. … Mr. Latuszek does very little regular exercise
of any kind, except once or twice a week.  He did not try yoga, massage
therapy, relaxation therapy or the medications as recommended by his psychiatrist.
[H]e understands that … exercise, may improve, if not cure, his symptoms. 
The plaintiff has not prioritized his recovery.

[57]        
The plaintiff in that case suffered from more serious physical and
psychological issues than Mr. Maltese’s diagnoses.

[58]        
In Abdalle v. British Columbia (Public Safety and Solicitor General),
2012 BCSC 128, the plaintiff was recommended an exercise program, among other
things. At paras. 61-85, Madam Justice Ross found that the failure to become
more active was unreasonable and that it would likely have reduced the effect
of the plaintiff’s injuries. She reduced non-pecuniary damages by a factor of
25%.

[59]        
I am satisfied that the first stage of the test in Gregory has
been met: I have no difficulty concluding that Mr. Maltese, having all the
information at hand that he possessed at the time, ought reasonably to have
undergone the recommended treatment of active rehabilitation through a
kinesiologist or personal trainer.

[60]        
Among other reasons, Mr. Maltese submitted that because he felt worse
after attending physiotherapy, he made a decision to not pursue an active
rehabilitation program. I cannot accede to this argument. The medical evidence
taken as a whole also establishes that, on a balance of probabilities, there
would have been a significant improvement in the plaintiff’s condition or a reduction
in his damages.

[61]        
On such a clear case, a reduction of 30% in the awards for non-pecuniary
damages, wage loss after his return to work and loss of future earning capacity
is appropriate.

Non-Pecuniary Damages

[62]        
The basic principle of non-pecuniary damages was expressed by
Mr. Justice Dickson (as he then was) in Andrews v. Grand & Toy
Alberta Ltd., [1978] 2 S.C.R. 229 at 261-62:

…There is no medium of exchange for happi­ness. There is no
market for expectation of life. The monetary evaluation of non-pecuniary losses
is a philosophical and policy exercise more than a legal or logical one. The
award must be fair and reasonable, fairness being gauged by earlier deci­sions;
but the award must also of necessity be arbitrary or conventional. No money can
provide true restitution.

Money is awarded because it will serve a useful function in
making up for what has been lost in the only way possible, accepting that what
has been lost is incapable of being replaced in any direct way.

[63]        
While the compensation is restitutionary in nature, the law recognizes
that nothing can directly replace what a plaintiff has lost due to an
accident.  A court is not capable of reaching back in time and removing the physical
or emotional pain and suffering.  A plaintiff is entitled to be compensated for
her or his non-pecuniary loss, as far as money is capable.  The general
principles were reiterated by Madam Justice Dickson of this Court in Kuskis
v. Hon Tin, 2008 BCSC 862 at paras. 135-36:

[135]    Non-pecuniary damages are awarded to compensate the
plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities.
The compensation awarded should be fair and reasonable to both parties: Andrews
v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. [229]; Jackson v. Lai,
2007 BCSC 1023 at para. 134.

[136]    For purposes of
assessing non-pecuniary damages, fairness is measured against awards made in
comparable cases. Such cases, though helpful, serve only as a rough guide. Each
case depends on its own unique facts: Andrews; Jackson; Jenkins
v. Bourcier, 2003 BCSC 388 at para. 87; Radford v. Drobot, 2005 BCSC
293 at para. 62.

[64]        
The specific factors to be considered were set out in the decision of
our Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46:

[45]      … I think it is instructive to reiterate the
underlying purpose of non-pecuniary damages. Much, of course, has been said
about this topic. However, given the not-infrequent inclination by lawyers and
judges to compare only injuries, the following passage from Lindal v. Lindal,
[[1981] 2 S.C.R. 629], at 637 is a helpful reminder:

Thus the amount of an award for
non-pecuniary damage should not depend alone upon the seriousness of the injury
but upon its ability to ameliorate the condition of the victim considering his
or her particular situation. It therefore will not follow that in
considering what part of the maximum should be awarded the gravity of the
injury alone will be determinative. An appreciation of the individual’s loss
is the key and the "need for solace will not necessarily correlate with
the seriousness of the injury" (Cooper-Stephenson and Saunders, Personal
Injury Damages in Canada (1981), at p. 373). In dealing with an award
of this nature it will be impossible to develop a "tariff". An
award will vary in each case "to meet the specific circumstances of the
individual case" (Thornton [v. School Dist. No. 57 (Prince
George) et al., [1978] 2 S.C.R. 267] at p. 284 of S.C.R.).

[Emphasis added.]

[46]      The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

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

(g) impairment of family, marital
and social relationships;

(h) impairment of physical and
mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as a factor that should not,
generally speaking, penalize the plaintiff: Giang v. Clayton, [2005]
B.C.J. No. 163 (QL), 2005 BCCA 54).

[65]        
The plaintiff referred me to: Fletcher v.
Meyer, 1993 B.C.J. No. 508 (S.C.); Majer v. Beaudry, 2002 BCSC
746; Stanikzai v. Bola, 2012 BCSC 846; Johnson v. Kitchener, 2012
BCSC 1796; and Beagle v. Cornelson, 2012 BCSC 1934.  The non-pecuniary awards
in those cases, adjusted for inflation to 2013 dollars, ranged from
approximately $91,000 to $122,000.

[66]        
The defendant referred me to: Co v. Watson,
2010 BCSC 950; Cripps v. Overend, 2010 BCSC 1779, Jenkins v. Bourcier,
2003 BCSC 388; and Nicholson v. Pham and Nguyen, 2005 BCSC 1527.  The non-pecuniary
damages awards in those cases ranged from $27,500 to $75,000.

[67]        
Mr. Maltese has neck and lower back pain
persisting from the accident.  He testified that the shoulder injury,
headaches, leg pain and sleep troubles had largely resolved by the time of
trial. He agreed under cross-examination that his overall mood became better by
the beginning of 2011.

[68]        
There was a lengthy period of time following the
accident when Mr. Maltese was unable to participate in any recreational
activities. His evidence is that he used to play hockey and golf for sport but
now he participates more for the social interaction. Some activities, such as
water sports, are too jarring and no longer enjoyable.

[69]        
As well, Mr. Maltese’s change of career has
impacted him. His commute is longer and his hours are less flexible, reducing
the time he can spend with his children.

[70]        
The accident caused, in addition to pain and
discomfort, a measure of emotional suffering.  I am satisfied that he enjoyed
life less for a period of time.  On the other hand, Mr. Maltese is able to
play and coach hockey and golf, although not as often or aggressively as before,
as well as generally attend work and enjoy day-to-day life.  While
Mr. Maltese has also gone through the difficult and life-changing experience
of a marital break-up, the evidence does not establish that the accident caused
the marriage to fail.  Mr. Maltese’s uncorroborated testimony to this
effect falls far short of proving causation.

[71]        
Taking all these circumstances into account and
on reviewing the medical evidence and similar jurisprudence, an appropriate
award for non-pecuniary damages is $40,000, subject to the 30% reduction.

Past Wage Loss from November 12, 2008 to May 19, 2009

[72]        
The plaintiff decided to stay away from work for just over six months. 
He did not seek a graduated return to work.  He did not seek an assignment of
light duties.  The material from his employer indicates that light duties were
offered to him and declined.

[73]        
My conclusion is that his wage loss for this period, $37,500, should be
awarded.  With hindsight, it may appear that Mr. Maltese should have and
could have tried an earlier return with light duties.  However, the plaintiff’s
emotional state no doubt played an important role in his failure to do that. Under
these circumstances, Drs. le Nobel and Kokan both opined that Mr. Maltese’s
time off work was “reasonable”. Accordingly, this award is not subject to a
reduction for the plaintiff’s failure to mitigate.

Past Wage Loss from May 19, 2009 to October 1, 2013

[74]        
The plaintiff suffered a loss based on his inability to return to the
technical field representative position.  Although that position paid higher than
his current sales position, he had to pay union dues and now has a pension plan. 
In all the circumstances, I assess his loss for this period at $75,000.  This
award, however, is subject to the reduction as outlined above.

Cost of Future Care

[75]        
The applicable principles were described in Kuskis v. Hon Tin, 2008
BCSC 862 at paras. 163-64:

[163]    An award for the cost of future care is notional and
imprecise in nature: Strachan (Guardian ad Litem of) v. Reynolds, 2006
BCSC 362. The court must consider evidence regarding what care is likely in the
injured person’s best interest and calculate its present cost, with appropriate
adjustment for contingencies in all of the circumstances of the case: Courdin
v. Meyers, 2005 BCCA 91.

[164]    In making an award for
future care costs the court must take into account both what is medically
required and what expenses the plaintiff will likely incur. Items and services
that the plaintiff is unlikely to use in the future cannot be justified as reasonably
necessary aspects of the cost of future care: Izony v. Weidlich, 2006
BCSC 1315.

[76]        
The quantification of future care costs was discussed by the Supreme
Court of Canada in Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9
at para. 21:

[21]      Damages for cost of
future care are a matter of prediction.  No one knows the future.  Yet the rule
that damages must be assessed once and for all at the time of trial (subject to
modification on appeal) requires courts to peer into the future and fix the
damages for future care as best they can.  In doing so, courts rely on the
evidence as to what care is likely to be in the injured person’s best
interest.  Then they calculate the present cost of providing that care and may
make an adjustment for the contingency that the future may differ from what the
evidence at trial indicates.

[77]        
In this regard, the plaintiff relies on the fact that Drs. Travlos, le
Noble, Chan and Kokan all recommended an active rehabilitation program.  The
plaintiff argued that there is a consensus among these physicians that he needs
to recondition himself and would benefit from the assistance of a kinesiologist
or personal trainer.

[78]        
But there must be a likelihood that a plaintiff will incur costs before
an award can be made under this head of damages.  I conclude that it is
entirely unlikely that Mr. Maltese will avail himself of these services in the
future.  After all, the plaintiff has been advised by medical professionals on
numerous occasions to engage in active reconditioning.  He has not done so.  I
conclude an award for cost future care costs in these circumstances is
inappropriate: Izony v. Weidlich, 2006 BCSC 1315 at para. 74.

Special Damages

[79]        
Mr. Maltese has not kept receipts for the expenses
he incurred as a result of this accident.  The plaintiff’s position is that
$500 to $1,000 ought to be awarded.  The plaintiff testified that he hired a
maid to assist with his housekeeping and paid to have his lawn cut.  He also
hired his neighbour at Hatzic Lake to perform various tasks at the recreational
property. 

[80]        
His further evidence is that he has taken medication
from time to time.

[81]        
In the absence of documentation, I am prepared
to award a small amount towards the cost of medication and other expenses that
Mr. Maltese likely incurred:  $300 is awarded.

Loss of Future Earning Capacity

[82]        
Any claim for loss of future earning capacity
raises two issues:  first, have the plaintiff’s injuries impaired her or his
earning capacity, and second, if so, what compensation should be awarded. The
claim is not based on a balance of probabilities.  Rather, the issue is whether
there is a real and substantial possibility of the loss occurring.

[83]        
Recently, Garson J.A. in Perren v. Lalari,
2010 BCCA 140, reviewed the law in this area and reached the following conclusions:

[30]      Having reviewed all of these
cases, I conclude that none of them are inconsistent with the basic principles
articulated in Athey v. Leonati, [1996] 3 S.C.R. 458, and Andrews v.
Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229.  These principles are:

1.         A
future or hypothetical possibility will be taken into consideration as long as
it is a real and substantial possibility and not mere speculation [Athey
at para. 27], and

2.         It is
not loss of earnings but, rather, loss of earning capacity for which
compensation must be made [Andrews at 251].

[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.

[Emphasis in original.]

[84]        
She went on:

[32]      … 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.

[85]        
The evidence in this case establishes a real and
substantial possibility of a future event leading to an income loss.  In my
view, the facts of Mr. Maltese’s future capacity loss lead to an assessment
based on the “earnings approach”.

[86]        
Dean Powers, a vocational rehabilitation
consultant, assessed Mr. Maltese on September 17, 2012, and published his
report on September 30, 2012.  He concluded:

Mr. Maltese is
not presently suited to his pre-injury employment as a Technical Field
Representative with Shaw Cable due to the injuries sustained in the November
2008 MVA.  Limitations were indicated in prolonged or repetitive horizontal
reaching, vertical reaching, bending, kneeling, repetitive or prolonged
crouching, and carrying heavy loads, all of which would be required as a
Technical Field Representative.

[87]        
Dr. Powers also concluded that Mr. Maltese’s
present position is “physically sustainable for the foreseeable future”. 

[88]        
Mr. Maltese’s evidence is that his job as a
technical field representative was the best job he ever had. He stated that he
would go back to it if he could, but he is physically unable to do so.

[89]        
The challenge in this case is attempting to
quantify the plaintiff’s future loss.  This task is complicated by Mr.
Maltese’s failure to file income tax returns over the last several years. 

[90]        
There was vague and rather non-specific evidence
from Robert Bounds, a manager at Shaw Cable, that some technical field
representatives can make a substantial amount of money if they work evenings
and weekends. Those shifts are more lucrative as customers generally schedule
appointments for service calls during those times.

[91]        
That evidence is of limited assistance.  There
is no evidence that Mr. Maltese ever made $150,000 or more in that position. 
In fact, the probabilities indicate the opposite.  In cross-examination, Mr.
Maltese agreed that he preferred working Monday to Friday.  After all, Mr.
Maltese enjoyed having a life outside work and expended considerable time and
energy coaching his son’s hockey team. 

[92]        
I conclude that an assessment of his loss of
future earning capacity must be based on the difference in pay between what he
received as a technical field representative and what he now receives in his
present sales position.  According to the material provided by Shaw Cable, his
gross earnings in the year preceding the accident were approximately $75,000.  The
salary for the new position he started in 2009 was $55,000 per annum.  His
position is now non-union without a flexible schedule or an opportunity to earn
bonus income. He is approximately 15 years from retirement.  Should Mr. Maltese
cease working as a sales representative at Shaw Cable, he would be less
attractive as an employee for many of the jobs he has held in the past as a
result of his ongoing physical limitations.

[93]        
In all the circumstances, I assess his loss of
future earning capacity at $225,000.  This will be subject to the reduction as
outlined above.

Loss of Housekeeping Capacity

[94]        
It has been accepted in British Columbia that
loss of housekeeping capacity is a separate head of damage: Kroeker v.
Jansen (1995), 4 B.C.L.R. (3d) 178 (C.A.), leave to appeal to SCC refused,
24763 (June 5, 1995); McTavish v. MacGillivray, 2000 BCCA 164.  It is
the loss of an asset which an individual had prior to the accident and no
longer has.

[95]        
The plaintiff seeks an award of $25,000 to $40,000. 
He testified that before the accident he worked hard on his lawn and his
garden.  His evidence is that he is no longer able to do so.  Similarly, when
he engaged in remodeling, he did many of the physical tasks himself and hired
contractors to do the skilled work.  He had a goal to renovate a bathroom and
bedroom in his house.  He can no longer do this.  He is also no longer able to
wash his car by hand.  He finds bending difficult so he uses automated car
washes. 

[96]        
The medical evidence is that he was physically prevented
from performing these tasks for a period of time.  Mr. Maltese’s evidence is
that they continue to cause him pain and discomfort so he does not perform
them.

[97]        
His partner, Ms. Riczu, does provide assistance
with household tasks. 

[98]        
I conclude that Mr. Maltese has suffered some
loss of housekeeping capacity.  He will be forced to incur expenses in the
future as a result.  However, it is difficult to quantify the loss.  He has
provided no receipts for expenses of this kind.

[99]        
I award $20,000 for loss of housekeeping
capacity.  This will be subject to the deduction for failure to mitigate.  In
my view, if he had done active rehabilitation, he would have been able to
perform many of these tasks himself. 

Conclusion

[100]     To summarize, I award:

[101]     This award is subject to a reduction for failure to mitigate of 30%
on: non-pecuniary damages, past wage loss after May 19, 2009, loss of future
earning capacity and loss of housekeeping capacity.

[102]     Costs may be spoken to.

Kelleher
J.