IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140327

Docket: M123275

Registry:
New Westminster

Between:

Clement Hart

Plaintiff

And

John Hansma

Defendant

– and –

Docket: M130347

Registry:
New Westminster

Between:

Clement Hart

Plaintiff

And

Juriaen Videler,
Franciscus Videler,
and Paula Pravica

Defendants

Before:
The Honourable Mr. Justice Verhoeven

Reasons for Judgment

I.                
Introduction

[1]            
The plaintiff Mr. Clement Hart claims damages arising out of
injuries sustained in two motor vehicle accidents:  (1) November 15, 2007, and
(2) September 23, 2009.  Liability is admitted for both accidents.

[2]            
The plaintiff’s major ongoing complaints of injury arising from the
accidents are to his left knee, his right shoulder, and the right side of his
neck.

[3]            
In April 2013 an MRI revealed a torn meniscus in his left knee, for
which the plaintiff is expected to undergo surgery in the next few months.

[4]            
In November 2013 an MRI of his right shoulder showed an extensive tear
in the top of the labrum (the ring of cartilage surrounding the socket of the
shoulder joint), as well as a partial thickness articular surface tear of the
supraspinatus tendon (that is, damage to a part of the rotator cuff tendon in
the shoulder).  There is a possibility of shoulder surgery as well; however no
final decision has been made about this.

[5]            
Neither the knee surgery nor the shoulder surgery is expected to
completely resolve the plaintiff’s knee and shoulder complaints.

[6]            
The defendants concede that the plaintiff continues to suffer from neck
and right shoulder pain and dysfunction, and left knee pain.  They dispute the
extent of his injuries and their consequences, particularly in relation to the
plaintiff’s claims for past and future loss of earnings and earning capacity.

II.              
Background Facts

A.             
The Plaintiff

[7]            
The plaintiff was 48 years of age when the first accident occurred.  He
is now 54.  He was born and raised in Guyana, where he was trained as a
machinist and fitter.  He is also a skilled welder.  He immigrated to Canada in
1982.  He is married, and has two adult daughters, Amelia and Bernicia, who are
now aged 30 and 26.  Bernicia lived at home until her marriage in 2009.  Amelia
continues to reside at home but will move out in 2015 when she marries.  The
plaintiff resides in a single family home Maple Ridge he and his wife acquired
approximately 20 years ago.

[8]            
He operates a business, Haven Tooling Inc. (“Haven Tooling”), which he
owns through a holding company, together with his wife. Haven Tooling is a
machining and fabricating business with a shop and office in Maple Ridge, near
the family residence.  He started the business in the late 1980’s.  The company
was incorporated in the early 1990’s.  90% of the company’s business is in
manufacturing specialized equipment and tools for the aviation industry.  The
plaintiff contends that his accident injuries have resulted in loss to the
business, and hence to him, and that the losses will continue indefinitely.

B.             
The Accidents

1.              
First Accident – November 15, 2007

[9]            
On November 15, 2007 Mr. Hart was driving his 2002 Dodge Ram pickup
truck.  He was going to a supplier to obtain some welding gas for his shop.  His
vehicle was stopped, facing northbound at the intersection of 113B Avenue and
Stewart Crescent in Maple Ridge, while he waited to turn left from 113B Avenue
onto Stewart Crescent.  While stopped his vehicle was struck from the rear by a
1995 Jeep Cherokee owned and operated by the defendant John Hansma.  There was
substantial damage to both vehicles.  The estimated repair costs were $4,350
for Mr. Hart’s pickup truck and $5,532 for Mr. Hansma’s Jeep, which
was considered a total loss.

[10]        
The first accident occurred about half a block from the location of
Haven Tooling.  At the scene Mr. Hart did not sense any injury.  He walked
to his shop, where his wife was working.  She drove him back to the accident
scene.  Another employee of Haven Tooling drove his pickup truck to the shop.

[11]        
By the time he arrived at his shop, Mr. Hart felt soreness in his
neck and shoulders, especially the right shoulder, and a headache.  He went to
see his G.P., Dr. Kaumi, the same day.  In his testimony at trial the
plaintiff stated that by the time he saw his doctor he was also experiencing
pain in his back, especially his low back, and numbness in his right arm.  Dr. Kaumi
noted complaints of pain on the right side of his neck, trapezius and right
interscapular muscle region.  Dr. Kaumi sent him for X-rays and prescribed
pain relieving medications.  The X-rays of his neck showed spondylotic disc
disease at C5-6.  Dr. Kaumi also prescribed physiotherapy, which Mr. Hart
commenced on December 6, 2007 with Ms. Anita Trip at Golden Ears
Orthopaedic and Sports Physiotherapy clinic.  In the meantime he made a single
visit to a chiropractor on November 27.

[12]        
He continued with physiotherapy with Ms. Trip until May 26, 2008. 
Also in May 2008 he underwent four laser treatments.  On June 14, 2008 he
attended an acupuncture treatment.  In July 2008 Dr. Kaumi referred him
for treatment with a kinesiologist, but Mr. Hart did not attend.  He had
three further acupuncture treatments: two in 2008 and one in April 2009.  After
the first accident Mr. Hart continued to see Dr. Kaumi regularly for
follow-up during 2008, and somewhat less frequently after October 28, 2008,
about one year post-accident.

[13]        
 Mr. Hart continued to work in his business on a daily basis
following the first accident; however he states he was unable to work to his
former capacity.  He states that for the first few days he avoided working on
the machines, such as the lathe and milling machine.  In general he states that
his stamina decreased, and he reduced his working hours.

[14]        
He acknowledges some improvement in his condition prior to the second
accident, but states that his pain never went away.  He states his neck, right
shoulder and low back were the major areas of complaint prior to the second
accident.  The low back pain varied with activities, and on some days was
tolerable. However his neck pain and right shoulder pain were constant.  In
numerical terms he says that if his neck pain was at “10” after the first
accident, it dropped to “7” before the second accident, then rose to “9” after,
and is now at “8”.

2.              
Second Accident – September 23, 2009

[15]        
On September 23, 2009 Mr. Hart was again the driver of his Dodge
Ram pickup truck when it was involved in a collision.  His recently married daughter
Bernicia was his front seat passenger.  He was on his way to drop off some
parts at a shop, and was planning to have coffee with Bernicia at a Tim
Horton’s restaurant.  He was travelling southbound on Westwood Street in Coquitlam,
intending to turn left onto Lougheed Highway.  He drove into the outer, right
hand lane of the two left turning lanes on Westwood Street as he approached the
intersection.  The signal for traffic on Westwood Street showed a red light.

[16]        
As he approached the intersection, a Chrysler 300 operated by the defendant
Juriaen Videler exited a gas station to the west of the intersection, and proceeded
through several lanes of traffic towards Mr. Hart’s lane, in a direction
perpendicular to the direction of the traffic.  In an effort to avoid a
collision with the Chrysler, Mr. Hart applied his brakes forcefully while
swerving to his left into the other turning lane, where his truck was struck by
a Volkswagen Jetta driven by the defendant Paul Pravica.  There was no impact
with the Chrysler.  There was a minor impact with the Jetta, which struck Mr. Hart’s
vehicle in the left rear bumper area.  The repair costs for Mr. Hart’s
vehicle were estimated at $381, and were estimated at $1,460 for the Jetta.

[17]        
Mr. Hart testified that his vehicle stopped violently.  He states
that he twisted his whole body in the incident. His right foot was on the
vehicle brake pedal.  He hit his left leg on the door panel of his truck.

[18]        
Mr. Hart states that his neck injury and low back injury were
aggravated in the second accident, and he sustained injuries to his left knee
and his left hip.

III.            
Analysis

A.             
Medical Evidence

1.              
Dr. F. M. Villasenor – General Practitioner

[19]        
Mr. Hart had been treated by his general practitioner, Dr. C.P.
Kaumi, for approximately 14 years prior to the first accident, and continued to
be treated by him until September 25, 2009, two days after the second accident,
when he began treatment with Dr. F. M. Villasenor, who remains his general
practitioner.  Dr. Kaumi has since retired from the practice of medicine
and was unable to provide a medical-legal report.  However his clinical records
were available.  They were carefully reviewed by Dr. Villasenor and were
available for review by other doctors as well.

[20]        
In his November 26, 2013 report Dr. Villasenor diagnosed the
following conditions:

1.     cervical
spine osteoarthritic changes at C5-7 (MRI);

2.     mild
foraminal stenosis on the left at C5-6 from osteophyte formation (MRI);

3.     myofascial
cervical pain and possibly plexus related … (Dr. Heran) October 1, 2010;

4.     chronic
headaches;

5.     bilateral
chronic knee pain;

6.     vertigo;

7.     insomnia;

8.     syncope
with extension and rotation; and

9.     anxiety
disorder.

[21]        
In more general terms, Dr. Villasenor diagnosed chronic multiple
musculoskeletal symptoms since the MVAs.  Dr. Villasenor states that his patient’s
main areas of complaint arising from the MVA injuries are to his neck, right
shoulder, and left knee.  Lesser complaints relate to lumbar pain, [left] hip
pain, insomnia, and anxiety disorder.  In Dr. Villasenor’s opinion, his
complaints were caused by the MVAs, as he did not suffer from these complaints
prior to the accidents.

[22]        
Dr. Villasenor observed that his recovery has been slow, and at
times stagnant, despite multiple treatment approaches including physiotherapy
and medicines.  Dr. Villasenor recommended continued physiotherapy,
anti-inflammatory medications, and exercise.  His prognosis is “very guarded”,
given that Mr. Hart has not sustained significant improvement in the six
years since the first MVA.  His prognosis for a full recovery is poor.

[23]        
Dr. Villasenor referred Mr. Hart to an orthopedic surgeon at
Vancouver General Hospital, Dr. Pierre Guy, in relation to his left knee
pain.  An MRI of his left knee conducted in April 2013 showed a tear in the
medial meniscus of his left knee.  In early December 2013, about three months
prior to trial, Dr. Guy recommended arthroscopic surgery to remove the
medial meniscus, which was thought to be the source of Mr. Hart’s left
knee pain.  Dr. Villasenor states that the surgery will take place in the
next few months.  Surgery is expected to improve function and relieve pain in Mr. Hart’s
knee, but he does not expect 100% pain relief or return to full function.

[24]        
As noted, the MRI of Mr. Hart’s right shoulder conducted November
28, 2013 showed an extensive tear in the top of the labrum and also a partial
thickness articular surface tear of the supraspinatus tendon.  According to Dr. Villasenor,
the plan is to deal with Mr. Hart’s knee first, and then his shoulder.  He
will be referred to an orthopaedic surgeon regarding treatment options for his
shoulder.  Surgery is a possibility.

2.              
Dr. N. S. Heran – Neurosurgeon

[25]        
Dr. Heran saw Mr. Hart at the request of his G.P., initially Dr. Kaumi,
and later, Dr. Villasenor, for his neck pain.  He saw Mr. Hart on
three occasions: June 3, 2010, September 24, 2010, and July 5, 2011.  Dr. Heran
diagnosed “myofascial pain syndrome [chronic pain arising from the muscles and
connective tissues] involving the cervical spine axis with extension into his
upper extremities and upper torso.”  He also thought that there was likely
nerve root irritation.  However there was no structural abnormality of his
spinal axis or evidence of nerve root impingement.  He states that there are no
surgical recommendations available. He suggested steroidal injection therapy
which could provide symptomatic relief, and pain medication.  In his view
further physiotherapy, massage therapy or exercise programs were unlikely to be
of further benefit.  However there was no contraindication to exercise or
physical activities.  In his view Mr. Hart is not functionally limited by
his pain, but continues to suffer through it.  He expects that his capacity to
function with pain will diminish over time, as he ages.

3.              
Dr. A. Mutat – Neurosurgeon

[26]        
Dr. Mutat saw Mr. Hart at the request of Dr. Villasenor.  He
saw him on three occasions:  June 4, 2012, September 27, 2012, and February 28,
2013.  He was referred to Dr. Mutat for his complaints of neck and right
arm pain.

[27]        
Dr. Mutat diagnosed whiplash type soft tissue injuries to his neck,
which aggravated pre-existing cervical disc disease and facet osteoarthropathy,
rendering these pre-existing but asymptomatic (based upon Mr. Hart’s
reports) conditions symptomatic.  He agreed in his testimony at trial that
these pre-existing conditions are common findings in people over the age of 45
or 50.  He also diagnosed low back pain due to lumbosacral soft tissue injury, aggravating
pre-existing lumbar degenerative disc disease.  His prognosis was for a
continuation of the plaintiff’s symptoms and pain.  There is a small risk (10%
to 15% within 10 years) of his condition worsening to the point where spinal
discectomy surgery could be indicated.  Unlike Dr. Heran, he did not
favour steroidal injections, due to their temporary benefits and risks of
serious side effects, including the risk of stroke.  Also unlike Dr. Heran,
whose report he reviewed prior to writing his own report, he favoured periodic
courses of physiotherapy depending upon normal variations such as flare-ups in Mr. Hart’s
condition.

4.              
Dr. Andrew S. Dawson – Physical Medicine and Rehabilitation

[28]        
Dr. Dawson saw Mr. Hart on a single occasion in October 2010,
on a referral from Dr. Villasenor.  Degenerative changes in his cervical
spine as shown on a July 9, 2010 MRI and January 2010 CT scan were noted.  He
diagnosed myofascial pain, which he defined as soft tissue pain of muscle and
fascia in the right shoulder region, and associated abnormal posturing and
function of the shoulder.  He recommended an exercise and strengthening
program.  He foresaw no permanent disability.

5.              
Dr. Peter A. Kokan – Orthopaedic Surgeon

[29]        
Dr. Kokan saw Mr. Hart on two occasions, for purposes of an
independent medical examination, at the request of plaintiff’s counsel.  The
first examination was January 24, 2012 and the second was November 14, 2013.  On
the first occasion Mr. Hart complained of pain in his neck, right
shoulder, lumbar, right buttock, hip, and left knee.  On the second occasion he
continued to have complaints of pain in his neck, right shoulder and left
knee.  His knee pain had worsened. His lumbar pain and buttock and hip pain had
improved.

[30]        
On the second examination Dr. Kokan diagnosed: (1) medial meniscus
tear in the left knee; (2) lumbo-sacral transitional vertebrae (LSTV) producing
mechanical low back pain and L-4, L-5 facet joint arthrosis and possible L-4,
L-5 disc bulge; (3) right shoulder pain, with a differential diagnosis (that
is, uncertain, alternative possibilities) of rotator cuff tendonitis or
possible labral tear; (4) degenerative cervical spondylosis; and (5) right
upper limb numbness and tingling, without proven neurogenic origin.  Dr. Kokan’s
opinion was that the plaintiff’s complaints were caused by the motor vehicle
accidents.  In particular the first accident precipitated neck pain, right
shoulder pain, and low back pain.  The second accident caused the left knee pain,
and aggravation of the neck and low back pain.  Specifically he was of the view
that the meniscal tear in the left knee was caused by the second accident.  The
accidents produced low back pain by aggravating a pre-existing congenital
anomalous condition in his lumbar spine (the LSTV).

[31]        
Dr. Kokan was of the view that Mr. Hart would require
arthroscopic surgery to his knee.  Recovery could be expected to take from six
weeks to six months, and perhaps as long as one year.  Surgery would result in
a 90% chance of improvement in his condition.  Meniscectomy results in an
increased risk of osteoarthritis eight to 15 years after surgery.

[32]        
Following preparation of his second report, Dr. Kokan reviewed the
MRI images and report relating to Mr. Hart’s shoulder conducted on
November 28, 2013.  In a third report, he agreed with the findings of a large
labral tear and signs of tendonitis in the supraspinatus tendon with some
partial tearing.  He also noted swelling and degenerative changes in the
acromioclavicular joint.  In his view based upon the findings, arthroscopic
surgery was an option for Mr. Hart, if he found he could not live with the
symptoms.  Recovery time would be at least three to six months.  Dr. Kokan
would expect improvement in his condition, but could not be sure that his
shoulder strength and function would return to his pre-injury state.

[33]        
At trial, based upon a review of the relevant clinical records, Dr. Kokan
acknowledged the possibility that the plaintiff’s low back complaints were
unrelated to the accidents, as the records appeared to show very few complaints
of low back pain prior to February 24, 2010, several months after the second
accident.

[34]        
With respect to restrictions, Dr. Kokan noted that Mr. Hart
was able to continue his former work, but with reduced capacity and with pain. 
He expected that at most he would be able to continue with similar work
capacity to age 65 but there was a chance his capacity would decrease with
time.

6.              
Dr. Robert W. McGraw – Orthopaedic Surgeon

[35]        
Dr. McGraw saw Mr. Hart on November 1, 2011, at the request of
defence counsel, and provided a report dated December 12, 2011. Subsequently he
was provided with further medical records and reports, including Dr. Kokan’s
first report and the 2013 MRI reports relating to the plaintiff’s left knee and
right shoulder. Dr. McGraw commented on the further material that he
reviewed.

[36]        
Mr. Hart complained to Dr. McGraw of neck pain on a daily
basis, focussed on the right trapezius area, with associated headaches, and
pain and numbness radiating to his right arm and hand.  Dr. McGraw
diagnosed an uncomplicated musculoligamentous soft tissue injury to his
cervical spine resulting from the first accident.  With respect to the second
accident, Dr. McGraw diagnosed aggravation of the soft tissue injury to
the neck, and a contusion to the left knee.  He observed that the pre-existing
degenerative disc disease or spondylosis in the plaintiff’s cervical spine
undoubtedly contributed to the chronicity of his neck symptoms.  Dr. McGraw
gave a guarded prognosis for recovery of the plaintiff’s neck condition.  He
did not expect complete resolution of the neck symptoms.  This condition
resulted in a significant impairment in the plaintiff’s neck with ongoing pain
and neurological symptoms in the right upper limb.

[37]        
He found no clinically significant findings with respect to the
plaintiff’s left knee.

[38]        
Dr. McGraw recommended a supervised active exercise program, and
did not favour any passive treatment modalities.

[39]        
In response to Dr. Kokan’s first report, Dr. McGraw stated
that when he saw Mr. Hart he did not complain of low back pain, right
elbow pain or right hip pain, and therefore he was of the view that these areas
were not injured in the accidents.

[40]        
Dr. McGraw agrees that Mr. Hart has a torn meniscus in his
left knee, based on the April 20, 2013 MRI report.  He states that there were
no clinical findings to support that condition when he examined Mr. Hart
in 2011.  He doubts whether the torn meniscus was caused by the accident injuries,
and, further, whether the plaintiff’s pain is caused by the meniscus
condition.  On that basis, he also questions the benefits of the proposed
meniscectomy surgery, which can make matters worse in the long run.  In his
view, Mr. Hart probably injured his patella (kneecap) and that is the
likely source of his ongoing pain.  In his view the damaged meniscus is likely
the result of degenerative processes.

[41]        
Dr. McGraw states that on his 2011 examination he noted no
abnormalities in either shoulder, aside from tenderness in the area of the
right rotator cuff, and he states that Mr. Hart did not state that his
right shoulder had been injured in either accident.  In his view if a labral
tear occurred in one or other accident, there would likely be immediate acute
symptoms such as pain localized to the joint area and loss of function of the
joint, which was not the case.  He therefore concluded that the November 28,
2013 shoulder MRI findings were not causally related to either accident.  However
in more general terms he agrees that Mr. Hart has an injured right
shoulder and that it continues to be symptomatic.  He doubts whether surgery
will benefit him.

[42]        
In cross examination, Dr. McGraw elaborated that in saying Mr. Hart
suffered a neck injury, he was including injury to the right shoulder area
generally.  He also acknowledged that it was possible that the labral tear
could have existed in 2011 when he examined Mr. Hart but was asymptomatic
and not detected on the examination.

B.             
Other Expert Evidence Relating to Physical Condition

[43]        
From December 6, 2007 to May 26, 2008, Mr. Hart received 16
physiotherapy treatments from Ms. Trip, for complaints relating to his
right side neck, right scapular and shoulder pain, headaches and right hand
tingling.  He was prescribed exercises in addition to the clinical treatments. 
He experienced some improvement in his symptoms but his condition was
variable.  Among her conclusions, Ms. Trip was of the view that Mr. Hart
sustained a supraspinatus strain which developed into more chronic rotator cuff
difficulties.  Mr. Hart has recently returned for more physiotherapy
treatments with Ms. Trip.

[44]        
On the suggestion of a family member the plaintiff began treatment for
his neck and shoulder pain with a naturopathic physician, Dr. Jason
Hughes, in May 2013.  Dr. Hughes administers “prolotherapy” which consists
of injections of a sugar solution into the affected area.  According to Dr. Hughes,
the treatments have resulted in slow, steady improvements in Mr. Hart’s
complaints.  Mr. Hart continues with the treatments as needed.  Dr. Hughes
questioned the benefits to Mr. Hart of shoulder surgery.

[45]        
Mr. Hart saw a physiotherapist, Jeff Slatten, in 2010, mostly for
pain in both knees.  In 2011 he complained to Mr. Slatten of right sided
neck pain, for which he was treated, and referred for acupuncture.

[46]        
Mr. Hart underwent functional capacity testing on February 23, 2012
and October 7, 2013, with Mr. Paul Pakulak.  In Mr. Pakulak’s
opinion, Mr. Hart demonstrated capacity for activities requiring modified
medium and some medium level strength.  He had specific limitations with some
activities.  Prolonged activities above a modified medium level would be
expected to adversely impact his productivity and safety.  Mr. Pakulak
states that the NOC (National Occupation Classification) indicates that the
occupation of a metal worker or welder requires medium level strength, which
relates to handling loads up to 44 pounds.  However Mr. Pakulak was of the
view that on the basis of the work described by the plaintiff and Mr. Pakulak’s
own information, the work would better be described as heavy.  In Mr. Pakulak’s
view, while acknowledging that Mr. Hart has carried on with his welding and
other physical work with limitations, Mr. Hart does not have the capacity
to work as a welder or metal worker at a competitive or sustainable pace.  He
could do lighter household work and maintenance activities, but not more
physically demanding household chores or activities.

C.             
Extent of Injuries Sustained and Prognosis

[47]        
Mr. Hart was generally healthy prior to the accidents, aside from a
thyroid condition.  The evidence is clear that he was very physically fit and
active, and had no limitations of function.  As noted, he was 48 years of age
at the time of the first collision.  He had pre-existing and common
degenerative changes in his cervical spine, and a pre-existing congenital
abnormality and degenerative changes in his low back, but these conditions were
not symptomatic.  There is no basis in the evidence beyond speculation to conclude
that there was a realistic chance that any of his injuries sustained in the
accidents would have occurred at some point in the future, absent the
accidents.

[48]        
In my view Mr. Hart did not exaggerate his physical problems and
was generally credible as a witness.  None of the experts who examined him
noted any concerns regarding the credibility of his complaints.  More
specifically, the defence expert Dr. McGraw said that Mr. Hart did
not exhibit any non-organic activity or pain magnification behaviour.  Dr. Kokan
formed the same opinion.  Mr. Pakulak states that the plaintiff’s level of
effort during functional capacity testing was high and the testing results were
consistent and reliable.

[49]        
I was advised in submissions by defence counsel that there is in this
case no practical, legal necessity for distinguishing between the injuries
sustained in the two accidents for purposes of allocation of liability for
damages between the defendants, all of whom are insured by the same insurer. 
All defendants were represented by the same counsel at trial.

[50]        
In this regard, the circumstances are the same as in Athey v. Leonati,
[1996] 3 S.C.R. 458, in that there are two accidents, both tortious, with no
allegations of contributory negligence and both defendants are represented by a
common insurer; thus, there was (and is here) no practical need to allocate
damages for each defendant.

[51]        
For the most part the evidence of the medical and other experts
regarding Mr. Hart’s condition and prognosis do not materially conflict.

[52]        
As noted, Dr. McGraw questioned whether the labral tear in the
plaintiff’s shoulder and the meniscus tear in his knee were caused by the
accidents.  However, Dr. McGraw did not dispute that Mr. Hart injured
his right shoulder and left knee in the accidents, and he did not dispute that
they continue to be injured at present.  He had the disadvantage of only seeing
Mr. Hart once, more than two years prior to trial, and without the benefit
of later examinations including the MRIs conducted in 2013.  On the basis of
the plaintiff’s evidence of a steady worsening in these conditions, they may
have deteriorated since he saw Dr. McGraw.  In relation to these questions
I place more weight on the testimony of Dr. Kokan, who had the benefit of
examining the plaintiff twice, with the last examination being quite recent.

[53]        
The plaintiff states that the current state of his injuries is as
follows:

1.     Constant
neck pain, little or no better than shortly after the second accident.  He has
a burning sensation in his neck and the upper part of his shoulder.  The pain
is aggravated by activities such as working on the computer.  He takes Advil
and Tylenol for pain relief during the daytime.  In the evening he takes
Lyrica, on average, about 4 times per week. He limits his use of Lyrica as it
causes grogginess the following day, but it helps him sleep;

2.     Headaches,
associated with the neck pain.  He has some degree of headache pain at all
times.  He takes Advil or Tylenol and sometimes both at once, in the morning
and again in the mid afternoon.  He finds that acupuncture and prolotherapy
therapies allow him to function but do not provide complete relief;

3.     Right
shoulder: gradual worsening since the second accident, to the present.  The plaintiff
describes very sharp, intense pains that last for a few minutes, and leave him
with a dull aching soreness;

4.     Right
upper limb: right hand numbness, elbow and wrist pain, and right arm numbness
when sleeping;

5.     Left knee:
much worse over time since the second accident.  His knee locks in the
nighttime, and is extremely sensitive to touch.  The knee feels loose when he
goes for walks.  He walks with a slight limp.  A full knee bend produces a
painful snap.  He believes that when he tries to compensate for the knee pain,
it causes pain in his right knee;

6.     Low back:
occasional pain.  The condition has improved.  There is some slight pain daily
but the plaintiff can manage, with treatment, which is effective;

7.     Left hip:
periodic, occasional pain, dependant on activities; and

8.     Psychological,
emotional consequences:  at times he feels depressed and frustrated with his
condition, and with his reduced ability to function both at work and
domestically.  He feels that he is irritable.  He feels that his relationship
with his wife has suffered.

[54]        
I find that the most significant injuries suffered by the plaintiff in
the accidents are as follows:

1.     soft
tissue injuries to his neck, particularly the right side, resulting in chronic
neck pain;

2.    
chronic headaches, associated with
the neck pain;

3.     right
shoulder injury, including a labral tear and tendonitis with a partial rotator
cuff tear; and

4.     left knee
injury, including a meniscus tear.

The foregoing injuries continue to cause significant ongoing
pain and disability currently.

[55]        
I find that the plaintiff also suffered from the following, less serious
injuries sustained in the accidents:

1.     right
upper limp numbness and pain;

2.     low back
injury, and associated pain (that is not presently bothering him) in the right
hip and buttock area;

3.     right knee
pain (although it is now substantially resolved); and

4.     left hip
pain (although it is now substantially resolved).

[56]        
The neck, headache, right shoulder, right upper limb, and low back injuries
occurred in the first accident, and were aggravated in the second accident. 
The left knee, right knee and left hip injuries occurred in or as a result of
the second accident.

[57]        
Dr. Villasenor also mentions other conditions, including vertigo,
insomnia, syncope, and anxiety disorder.

[58]        
I accept that the accident injuries have interfered with the plaintiff’s
sleep, and continue to do so.  His chronic pain interferes with his ability to
sleep.  Due to his right shoulder injury he can no longer sleep on his right
side as was his habit.

[59]        
I accept as well that the plaintiff has suffered psychological and
emotional consequences of his injuries, including feelings of depression, and
frustration.  His daughter Bernicia and his wife testified that he is more
irritable and less patient than he used to be, and that he is no longer as
cheerful, engaged, and positive as he used to be.  However he has not been
diagnosed with clinical depression or any other formal psychological condition.

[60]        
In Mr. Hart’s case “syncope” refers to a transient loss of
consciousness related to certain postures of his neck.  The plaintiff says that
this started happening after the second accident.  It can occur when he is at
work, working on the computer, or at home, watching television.  The plaintiff
says that after he realized what postures tend to bring it on, he is largely
able to avoid its occurrence, but it still occurs.  The plaintiff is not being
actively treated for the condition currently.   There was limited evidence
about this condition at trial.  On the evidence I am not satisfied that the
plaintiff has proven that the condition was caused by the accident injuries. 
It is not one of his major complaints.

[61]        
The plaintiff did not specifically mention vertigo in his testimony.  Dr. Villasenor
agreed that there are no complaints of vertigo in his clinical records, but he
recalled the plaintiff complaining of vertigo.  It is not clear to me whether Dr. Villasenor
intended to say that this condition was accident related.  In any event it is
not a major complaint.

[62]        
The defendants contend that contrary to the plaintiff’s testimony, he
did not experience low back pain until 10 months after the first accident, as
he did not report this concern to Dr. Kaumi until September 28, 2008, and
made no mention of low back pain to Ms. Trip while undergoing
physiotherapy from December 2007 to May 2008.  The defendants point out that Dr. Villasenor
did not make a note of lumbar pain until February 24, 2010.  However as Dr. Villasenor
testified, he cannot record everything in his clinical records and he also
relies on his memory.  The low back pain is not among the plaintiff’s major
areas of complaint.  I accept that as the plaintiff states and as Dr. Villasenor
opines he has suffered from low back pain since the first accident.

[63]        
I also accept that the left hip pain and right knee pain were caused by
the accident injuries, probably indirectly, as result of the plaintiff
compensating for his other injuries by altering his gait and posture.  Both of
these conditions have now substantially resolved.

[64]        
As noted, the plaintiff complains at trial of pain in his left hip.  In
his report Dr. Villasenor refers to complaints of right hip pain.  However
his summaries of his clinical records consistently refer to complaints of left
hip pain, so I have inferred that Dr. Villasenor’s reference to right hip
pain is likely an error.  Dr. Kokan referred to right buttock/hip pain in
his first report (January 24, 2012) which he reports was improved by the time
of his second examination of Mr. Hart on November 14, 2013.  I conclude
that Mr. Hart also had right hip and buttock pain for a period of time but
the condition is not presently bothering him.  The condition appears to be related
to his low back injury.

[65]        
The prognosis for full recovery is negative.  It is unlikely that his
neck injury will ever fully recover.  There is a risk that his neck condition
will deteriorate to the point where cervical discectomy surgery will be
required.  The headaches he suffers from are related to his neck injury.  The
plaintiff finds that treatment such as acupuncture, physiotherapy and the
prolotherapy provide short term relief for his neck pain and headaches.  He
takes a variety of medications in order to allow him to cope.  The planned knee
surgery may provide some benefit for his left knee pain, but may have long term
negative consequences, such as the risk of osteoarthritis. His shoulder
condition is also chronic.  The plaintiff has the choice of enduring the pain
and limitation of function in his shoulder, or undergoing surgery which may
offer some benefit.

IV.           
Assessment of Damages

A.             
Non-Pecuniary Damages

[66]        
I reviewed the purpose of an award of non-pecuniary damages and the
principles of assessing them in Gillam v. Wiebe, 2013 BCSC 565 at paras. 68-71,
where I stated:

[68]      The purpose of an award of non-pecuniary damages is
to compensate the injured person for his or her pain and suffering, loss
amenities of life, and loss of expectation of life. However, the law recognizes
that money cannot provide true restitution, because what has been lost is
irreplaceable, and in any event there is no market in which the value of the
loss can be objectively determined. The award is intended to provide solace,
not in the sense of sympathy, but in the sense that money can be used to make
the injured person’s life more endurable. 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. As was explained in Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33, at para. 171:

For those losses which cannot be made good by money, damages
are to be awarded on a functional basis to the end of providing substitute
pleasures for those which have been lost. This is the philosophical
justification for awarding damages for non-pecuniary loss.

[69]      Of necessity, the award must be arbitrary or
conventional. The award must be fair and reasonable, fairness being gauged by
earlier decisions: Andrews v. Grand and Toy, [1978] 2 S.C.R. 229, at paras. 87
– 89.

[70]      The general principles relating to assessment of
non-pecuniary loss are set out in the decision of the B.C. Court of Appeal in Stapley
v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19 [Stapley], at paras. 45
and 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, supra, 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,
[1978] 2 S.C.R. 267, at p. 284 of S.C.R.).

[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, 2005 BCCA 54).

[71]      The overriding
consideration is "appreciation of the individual’s loss". As a
result, the award will vary in each case to "meet the specific
circumstances of the individual case": Stapley, at para. 45.

[67]        
The plaintiff’s health and lifestyle have been severely adversely
affected by the accident injuries.  Previously, he was fit, strong, healthy,
and active.  He was able to work long hours in his physically-demanding
occupation, while operating the business at the same time.  He exercised
vigorously, daily, at home in his own basement gym.  He was able to run or jog,
or go for long walks. He was a cheerful, positive and dynamic individual.

[68]        
He is now unable to run. He still walks regularly, but his walking
ability is limited. He is no longer able to work long hours each day as he did
before.

[69]        
He continues to exercise at home regularly, but less frequently than
before, and less vigorously.  He often prefers to use a home sauna he has
purchased.

[70]        
While at work, his endurance and his capacity are limited.  He works with
pain, and endures pain in order to earn a living and keep his business
operating successfully.

[71]        
He formerly was responsible for all home maintenance and repair work on
the family home.  He is no longer able to do heavier household work.  The
family hires help for significant home maintenance and repair work, such as
pressure washing or carpet cleaning.

[72]        
As he says, he is no invalid, however.  He can still do many of the
things he did before, but in a limited way, and with pain.  He is now dependant
on treatments such as physiotherapy and acupuncture to help him cope.  He takes
substantial quantities of several pain medications on a regular basis.  Although
there are treatments that offer the prospect of some degree of improvement,
such as the knee surgery and the shoulder surgery, these carry risks and are
not expected to provide complete cures.

[73]        
The plaintiff’s personality has been negatively affected, as has his
relationship with his wife and daughters.  However he and his wife continue to
be quite involved with their church.  They continue to take annual vacations to
Quadra Island together.

[74]        
In overall terms, the plaintiff’s health will never be completely
restored.

[75]        
Plaintiff’s counsel submits that non-pecuniary damages of $125,000 to
$150,000 would be appropriate.  The defence submits that $75,000 would be reasonable.

[76]        
In support of an award in this range, the plaintiff cites: Stapley v.
Helsjet, 2006 BCCA 34 ($175,000); Prince-Wright v. Copeman, 2005
BCSC 1305 ($100,000); Steward v. Berezan, 2005 BCSC 1812 ($90,000);
Maillet v. Rosenau, 2006 BCSC 10 ($110,000); Hanson v. Yun, 2013
BCSC 2313 ($130,000); and Wong v. Hemlings, 2012 BCSC 907 ($100,000).

[77]        
Scoates, as the plaintiff concedes, involved “horrific” injuries
and an award at the “extreme upper limit”.  Similarly, in Stapley, the
plaintiff was awarded $175,000 non-pecuniary damages in unique circumstances:
the consequences of the injuries were more serious as the plaintiff had to move
from the ranch where he lived, worked, and planned to retire, which was described
as a particularly “unique loss” in the circumstances of that case.  Further,
the Court of Appeal was substituting an unreasonable jury award with the
highest possible one, in circumstances they recognized would normally not
warrant an award of non-pecuniary damages above $100,000.

[78]        
Maillet, Potrie, and Wong involve circumstances markedly
different from those at bar such that they are not helpful.  The circumstances
in Prince-Wright are similar in that the plaintiff went from an active,
highly-motivated and skilled business person to having chronic pain and being
unable to work fulltime, continually fatigued and unable to sleep.  However,
the plaintiff was younger than Mr. Hart and also suffered from diagnosed
post-traumatic stress disorder and clinical depression after the accident, the
latter of which she was at risk of redeveloping. Hanson involved a
permanent and progressively deteriorating injury to the shoulder of the
plaintiff’s dominant arm which would likely require surgery with an uncertain
outcome.  The plaintiff similarly lost the ability to take care of the home,
play with his children, and maintain a positive attitude at home.  The
plaintiff had chronic pain; however, unlike Mr. Hart, he was addicted to
the morphine-based medication he used to treat it.  Also distinguishable in Hanson
was that the plaintiff had already undergone two surgeries to correct the
shoulder injury, neither of which was effective, and he suffered from bouts of
diagnosed depression.  He was also 43 years old at the time of trial.

[79]        
Of the cases cited by the plaintiff, Steward offers the most
guidance.  In that case, the 50 year old, stoic plaintiff suffered from a
number of injuries including on-going arm, back, and neck pain, and weekly
headaches, and he had undergone shoulder surgery and a painful recovery.  By
the time of trial he was able to work again and his relationship with his wife,
which had suffered as a result of the accident, was improving, but he was still
unable to participate in activities or perform home maintenance.

[80]        
In support of their submission, the defendants cite the following cases:
 Bradshaw v. Matwick, 2009 BCSC 564 ($70,000); Garcha v. Duenas,
2011 BCSC 365 ($70,000); Trites v. Penner, 2010 BCSC 882 ($75,000); and Gold
v. Joe, 2008 BCSC 865 ($80,000).

[81]        
In Bradshaw, the plaintiff suffered injuries to his back, neck,
shoulder and left knee, causing him to experience on-going, significant pain
and reduced abilities in his job as a metal fabricator, and he could no longer
participate in the recreational activities he enjoyed, contribute to housework,
or maintain his positive relationships with his family.  In Garcha, the
52 year old (48 at the time of the accident) plaintiff’s ability to contribute
to housework, maintain positive relationships with family members, and
participate in exercise and activities was permanently and significantly
limited by ongoing neck, back and right shoulder pain.  The injuries also
affected his ability to perform his labour-intensive job at which he had
excelled, and at which he had been kept on only with substantially-modified
duties.  In Trites, the plaintiff continued to experience headaches,
neck, and back pain that required prescription pain medication to treat four
years after the accident. His work as a plumber aggravated his injuries and
exhausted him by the end of the day, and he was unable to engage in the
activities, household chores, and social life he had before the accident.  In Gold,
the plaintiff’s severe and chronic neck and back pain and headaches, continued
to affect his performance at his physically-demanding job four years
post-accident.  He also suffered a loss of lifestyle and recreational activity.
In all of these cases, the plaintiff’s injuries were permanent or likely to
persist indefinitely.  The plaintiffs were stoic and continued to work through
pain.

[82]        
Taking into account the factors in Gillam as they apply to Mr. Hart’s
circumstances, and the above awards in Prince-Wright, Hanson, Steward,
and the cases cited by the defendants, adjusting for inflation, I find that an
award of $95,000 is appropriate in this case.

B.             
Loss of Earning Capacity

[83]        
The plaintiff claims compensation for past loss of earning capacity of $150,000
to $200,000.  The defendants submit that the plaintiff’s net after tax loss for
past loss of earnings capacity is in the range of $67,787.04 to $90,160.

[84]        
The plaintiff claims future loss of earnings capacity of $850,000.  As
an example of the magnitude of the loss of future profits, the plaintiff submits
that the loss of ability to sell just one identified product (a large stand
used to remove and reinstall a landing gear door for a Boeing 787 aircraft)
will result in a loss of profits of approximately $990,000 over the course of
the next 14 years.

[85]        
The defendants deny that the plaintiff has established the basis for any
loss of future earnings capacity award.  Alternatively, they contend that the
loss should be assessed at between $96,250 and $199,492.

[86]        
100% of the shares of Haven Tooling are owned by a holding company,
which in turn is owned in equal parts by Mr. and Mrs. Hart.

[87]        
Mr. Hart contends that due to his accident injuries he has lost
income and will continue to lose income indefinitely.  He contends that his
inability to work to his former capacity, as a machinist and especially as a
skilled welder, has resulted in lost income to Haven Tooling and hence to him
as the proprietor and, indirectly, as part owner of the company.

[88]        
A plaintiff who carries on business through a company of which he is a
substantial shareholder, is entitled to claim in his own name for the value of
the loss of earning capacity to the company directly caused by the injuries
sustained: Rowe v. Bobell Express Ltd., 2005 BCCA 141; Everett v.
King (1981), 34 B.C.L.R. 27 (S.C.), aff’d (1983), 53 B.C.L.R. 144 (C.A.).  A
personal plaintiff is entitled to the whole of the business losses of a family
company even when he not the sole shareholder but only an equal 50% shareholder
along with his wife because in these family businesses, the money all goes into
the family “pot”: D’Amato v. Badger (1994), 95 B.C.L.R. (2d) 46 (C.A.),
rev’d in part on other grounds [1996] 2 S.C.R. 1071.

[89]        
I recently summarized the principles applicable to claims for past and
future loss of earning capacity in Sendher v. Wong, 2014 BCSC 140, at paras. 158-163
(past) and paras. 171-177 (future).  I adopt those passages here.

[90]        
Haven Tooling is a machining and fabricating shop which manufactures
metal products.

[91]        
Haven Tooling moved to its present premises in a Maple Ridge industrial
park in the 1990’s.  Its premises consist of a shop and office.  As of the
first accident date it had four employees, including Mr. Hart. Mr. Hart
primarily worked hands on, on the shop floor, as a machinist and welder.  Until
February 2009 Mrs. Hart worked at the business, in the office. 
Unfortunately at that time she was diagnosed with a serious chronic illness and
as a result she no longer works in the business.

[92]        
As noted, approximately 90% of Haven Tooling’s business lies in
manufacturing products for the aviation industry.  Its aviation products are
referred to as “ground support” equipment, meaning that they do not form
components of the aircraft, but are used to service and maintain aircraft. 
They are specialized products, built to designs prepared by others.  In his
evidence Mr. Hart referred to the company’s products as “ground support
tools.”  He explained that such “tools” can range in value from as little as
$300 to $400 for an item, to $70,000 for a large complex piece of equipment,
built by welding together (fabricating) a number of components or parts.

[93]        
In addition to ground support equipment, the company also manufactures
equipment parts.  During the course of the trial I heard evidence concerning a
wide variety of parts and tools, ranging from small parts worth just a few
dollars each, aluminum wrenches worth $30, or hammers or pullers or helicopter
blade balancing tools worth $150 to $400, to large and relatively complex high
precision wheeled transportation stands used to remove and reinstall major
components on large jet aircraft, such as shrouds for the thrust reversers or
the landing gear doors on a Boeing 787, worth $10,000 to nearly $40,000.  The more
complex and larger products were also referred to as “weldments” due to the
fact that the assembled components are welded together.  A weldment can also be
referred to as a fabrication or fabricated product because it involves assembly
of several components.  However weldments can also be smaller, simpler
fabricated items.

[94]        
As a machine shop Haven Tooling uses various pieces of equipment to
manufacture its products, such as lathes and milling machines.  In a lathe a
rounded object is turned while metal is removed.  A milling machine removes
metal from a stationary object which is not rounded.  Milling machines are
either manual or computer controlled, referred to as “computer numerical
control” or CNC machines. CNC machines require programming to produce the
finished object, whereas manual milling relies on the skill and handiwork of
the operator.  CNC machines are well suited to repetitive work, such as
manufacturing a number of like products.

[95]        
Haven Tooling has a network of machine shop subcontractors, most or all
of whom have CNC milling machinery.  It is not difficult for Haven Tooling to
subcontract non-fabrication work.

[96]        
Haven Tooling is capable of both metal machining work and fabricating.  By
all accounts Mr. Hart is a skilled welder.

[97]        
Although there have been some intervening changes in personnel, Haven
Tooling continues to operate with four employees at present, including Mr. Hart.
Mr. Hart continues to spend most of his time working on the shop floor. The
company currently employs two machinists and a general duty employee.  The shop
was described in the evidence as small.  In 2007 it had four lathes, four
milling machines, two welding machines, and three saws of various kinds.  Its
current equipment was not described in detail in the evidence, but I infer that
it is similar to what it had in 2007.  It has at least one CNC milling
machine.  There is no managerial or sales staff other than Mr. Hart
himself.  It is a small company with a limited capacity.

[98]        
 Haven Tooling’s largest and most important customer is Farwest
Aircraft, (“Farwest”) based near Tacoma, Washington. Farwest manufactures and
sells ground support equipment and tooling for Boeing aircraft, for Boeing
itself, and for airlines and maintenance facilities worldwide that service
Boeing aircraft.  It is also planning to expand its business to include support
for aircraft manufactured by Airbus and Mitsubishi.  Farwest’s Vice president
and General Manager is Mr. Frank Gutfrucht. Mr. Gutfrucht testified
at the trial.  He has known Mr. Hart for 30 years, since they worked
together as machinists at Decade Industries in Richmond, B.C., in the early
1980’s.  Both were young immigrants to Canada at the time, Mr. Gutfrucht
from Germany and Mr. Hart from Guyana.  Decade Industries was also in the
business of manufacturing ground support equipment for the aviation industry.  In
his testimony Mr. Gutfrucht praised Mr. Hart’s skills as a machinist
and fabricator.  Mr. Gutfrucht joined Farwest in 2002, and invited Haven
Tooling to become a Farwest supplier.

[99]        
Mr. Hart contends that due to his limitations the company now has
to contract out to other machine shops much work that it would otherwise do
itself.  It therefore makes less profit on this work.

[100]     Mr. Hart
further contends that due to his injuries he (and hence the company) is no
longer able to produce the large, complex weldment products typified by the
passenger jet aircraft transportation stands that it had previously and would otherwise
in future have sold to Farwest. Mr. Hart contends that this kind of work
involving precision fabrication and specialized welding is more profitable than
more straightforward machining work that his other employees can do or that the
company could contract out to other machine shops.

[101]     I accept
that Mr. Hart is no longer as capable as he formerly was of undertaking
machining and welding work. Welding work is strenuous.  There is consistent
evidence that Mr. Hart was formerly capable of welding for long periods of
time, as much as four to five hours.  Now he is limited to an hour or two of
welding at a time, with pain.

[102]     I accept
as well that Mr. Hart’s welding skills are missed by the company. 
Aviation quality welding work requires a very high degree of skill, due to the
nature of the materials, and the strength and precision of the welding work
product required.  Such welding skills are not easily obtained in the
marketplace.  The significant restrictions in Mr. Hart’s ability to weld
have limited the company’s capabilities.

[103]     However on
the state of the evidence it is difficult to assess how this loss has affected
the company’s profits, or how it may do so in future.

[104]     The
plaintiff contends that the past loss of earning capacity should be assessed at
$200,000, calculated as follows:

1.     $404 paid
to Daniel Chadwick post accidents, in late 2007, and in 2008 and 2009;

2.     $12,795
paid to Artem Kouznetsov, one of the company’s employed machinists, as extra
subcontracted labour over the period from late December 2007 to early 2011;

3.     Machining
work that Haven Tooling subcontracted to others, totalling in the range of
$72,565 to $108,116; and

4.     Loss of
profits on lost sales of transportation stands to Farwest Aviation: $67,785.

Total: $153,550 to $189,100

Less corporate tax of 13%

Net calculated loss – $133,588 to
$164,571.

[105]     To this,
the plaintiff submits there should be added an amount to reflect the loss of Mr. Hart’s
full abilities, which could be considered a capital asset of the company, as
Fenlon J. did in Zen v. Redhead, 2011 BCSC 190.  The plaintiff submits
that the overall loss of past opportunity claim should therefore be assessed at
between $150,000 and $200,000.

[106]     I am not
convinced that Mr. Hart’s abilities should be assessed as a capital asset
independently of the losses the plaintiff already set out as this approach
appears to me to be double counting the losses.  I do not accept that Mr. Hart’s
reduced abilities have caused any losses to Haven Tooling not already included
in the plaintiff’s specific calculations and evidence called, such as the loss
of the machining and transportation stand work.  In contrast, in Zen the
general valuation of the plaintiff’s sales skills as a capital asset was the
only way to calculate the losses to the company as there was no other, specific
evidence of business lost due to the plaintiff’s injuries.

[107]     The
position of the defendants is that the past loss should be assessed as follows:

1.     $404 paid
to Daniel Chadwick, less income tax of 30%:  $283;

2.     A.
Kouznetsov subcontracted work: $11,745 less 30%:  $8,222;

3.     Subcontracted
machining work:  $54,541, less 30%: $38,179, or alternatively, up to approximately
$50,000;

4.     Loss of
profits on sale of stands: range of $21,103.33 to $31,655;

Total: range of $67,787 to
$90,160.

[108]     The
plaintiff contends that his loss of future earnings capacity should be assessed
on the “capital asset” approach, as referred to in Perren v. Lalari, 2010
BCCA 140.  As guidance, he contends that, for example, the loss to Farwest of
the sale of transportation stands for the main landing gear doors for the Boeing
787 could translate into a potential loss of profits of as much as $1,095,000,
based upon a loss of 60 such sales.

[109]      Using
the average profit and based on making one stand per year over the next 11
years, the plaintiff submits that these losses amount to $990,000.

[110]     Mr. Gutfrucht
testified that perhaps a total of 120 such stands will be required worldwide in
order to service the Boeing 787, on the basis of two such stands being required
for each of about 60 customers.  However the need would be from the present to
2028.

[111]     Mr. Gutfrucht
testified that Haven Tooling was especially adept at production of such stands. 
He estimated that prior to 2008 Haven Tooling had produced perhaps 12 thrust
reverser stands for Farwest, in addition to other weldments.

[112]     In 2008
there was a recession in Farwest’s industry, in part at least due to the delays
in the start of production of Boeing’s 787 model (the “Dreamliner” which earned
the nickname “Lateliner”).  Notwithstanding their own difficulties Farwest
continued to send work to valued subcontractors such as Haven Tooling, as it
wanted to ensure such subcontractors would survive.  Farwest expected its
business slowdown to be temporary, as it waited for Boeing’s new aircraft to
begin production.  Farwest accumulated inventories, such as tooling produced by
Haven Tooling.  It ordered fewer weldments.  However business has improved
dramatically since 2008, and the company is now expanding rapidly.  The company
is expanding its premises and building its own large fabricating shop.  As
noted it is in discussions with other aircraft manufacturers such as Airbus and
Mitsubishi.  It is clear to me that at present the outlook for Farwest’s
business is rosy.

[113]     Mr. Gutfrucht
testified that in approximately 2008, Mr. Hart advised Farwest that his
company was no longer capable of doing the large weldment work due to his
injuries.  As a result, Farwest has provided Haven Tooling with more CNC
tooling work.  This is work that does not require fabrication welding.  Farwest
is indifferent as to whether Haven Tooling does this work in house or uses its local
network of machine shop contractors, in which Farwest has confidence, with the
benefit of Mr. Hart’s overall quality assurance.  In other words Farwest remains
confident in the quality of the products Haven Tooling provides whether it does
the work itself or it is subcontracted.

[114]     Mr. Hart
states that his company can no longer do the Farwest weldment work.  However
there is little detailed evidence and no comprehensive analysis of the weldment
work done by Haven Tooling for Farwest either before or after the accidents.  No
records or analysis of any kind is in evidence concerning the weldment work
done pre-accidents.  The post-accidents records are also incomplete.

[115]     There is a
discrepancy in the evidence, in that Mr. Gutfrucht states that Mr. Hart
told Farwest in or about 2008 that he could no longer do the large complex
weldments.  However in early 2010 Haven Tooling produced a Boeing 787 thrust
reverser stand for Farwest.  (Usually referred to in the evidence as “the
yellow stand” because of its colour in the photograph in evidence.)  Mr. Hart
states that Farwest ordered two more of the same product, but he had to advise
them that he could not do the work.  However at some later time, not clearly in
the evidence, Haven Tooling produced a series of three costly ($37,000 each) 787
landing gear stands for Farwest.  (Usually referred to in the evidence as the
“white stand” or stands.)  Some or all of the welding work done on these stands
was not done by Mr. Hart.  One of the stands was rejected due to poor
quality welding.  The substandard welding on this stand was performed by a former
employee of Farwest, or by subcontractors.  Farwest backcharged Haven Tooling
some undisclosed amount.  The episode was potentially catastrophic to Haven
Tooling’s relationship with Farwest, on which the success of the business
largely depends.

[116]     The
defendants contend that on the evidence Haven Tooling has replaced the
fabricating work such as the large transportation stands for Farwest with other
work that it remains capable of doing in house, or that it can contract out to
other machine shops.  The defendants point out that Haven Tooling is currently
more profitable than ever and that Mr. Hart is personally earning more
than he was before the accidents.

[117]     While not
denying that there is a basis for an award of past loss of earning capacity,
the defendants say that there is no basis for an award in respect of future
loss of earning capacity.  Alternatively, the defendants suggest that the award
should be in the range of $96,250 (based upon Mr. Hart’s average personal
income in 2011 and 2012) or $199,492 (based upon the present value of the loss
of profits for two transportation stands per year from now to Mr. Hart’s
65^th birthday in 10 years).

[118]     Neither Mr. Hart
personally nor the company has actually lost income following the accidents, in
comparison with prior years.  Indeed, both Mr. Hart’s personal income and
the income of the company have risen substantially since the accidents.  In the
years 2005 to 2007, Mr. Hart earned an average of $54,733 per annum, paid
to him as employment income from Haven Tooling.  In 2008 he earned $66,000, and
in 2009 he earned $80,000, also as employment income from the company.  Net
profits of the company in these years (2005 to 2009) were negligible or
slightly negative.  (There is some discrepancy in these numbers, as Mr. Hart’s
income is calculated on a calendar year basis, while the company’s fiscal year
end is September 30, but this is not material to the analysis, as the overall
picture is clear enough.)

[119]     In the
circumstances of this case the income from Mrs. Hart from the company
should also be taken into account.  However Mrs. Hart’s income from the
company for the years 2005 to 2007 is not in evidence.  Mrs. Hart was paid
$66,000 in 2008 and $49,000 in 2009 as management fees.

[120]     Beginning
in 2010 the company’s financial structure was changed, and it began retaining
net profits in the company, some of which were received by Mr. Hart as
dividends.  The evidence as to payment of dividends by the company (and the
holding company) is incomplete.

[121]     In the
years 2010 through 2012 Mr. Hart earned on average $93,166 as employment
income and dividend income.  Net profits before taxes for the company were on
average $51,640 in 2010 and 2011.

[122]     After 2011
the company’s profits increased dramatically.  In 2012 and 2013, the company’s
net profits (before taxes) averaged $278,058 ($279,928 in 2012 and $276,189 in
2013).  The company’s income is taxed at the corporate small business rate of
13.5%.  The company’s net profits after tax are available, of course, to be
paid to its shareholder (and then to Mr. and Mrs. Hart, through the
holding company) as dividends, at a time of their choosing.  After tax income
of the company in 2012 was $242,133, and in 2013 it was $239,000.

[123]     In 2013 Mr. Hart
was paid employment income of $80,000.

[124]     In
summary, Mr. Hart’s income paid to him directly as salary or dividends,
combined with the income available to him and Mrs. Hart as dividends in
2012 and 2013, is much higher than the income he had available in the years
2005 to 2007, which averaged $54,733 per year, and even assuming that some like
amounts were paid to Mrs. Hart during those years.

[125]     This
recent prosperity is largely explained by increases in sales to Farwest
Aviation.  The sales figures to Farwest prior to 2011 are not in evidence.  However
Mr. Gutfrucht orally provided the following sales figures for calendar
years 2011 to 2013 (all figures in U.S. dollars):

1.     2011 –
$337,802;

2.     2012 –
$470,289; and

3.     2013 –
$666,848.

[126]     The
breakdown of these sales as between machined tools of the type that Haven
Tooling can continue to provide as compared with the more complex weldments is
not in evidence.

[127]     It is
clear that in recent years Farwest Aircraft has accounted for well over 50% of
Haven Tooling’s sales. Given the robust state of Farwest’s current business
outlook, and the obvious value that Mr. Gutfrucht and Farwest places on
the business relationship with Mr. Hart and Haven Tooling, it is
reasonable to expect that Farwest will continue to provide Haven Tooling with
considerable sales for the foreseeable future.  Mr. Gutfrucht testified
that although Farwest will not be sending any more weldment orders to Haven
Tooling, it will continue to provide Haven Tooling with other work.

[128]     Indeed, Farwest
has very recently provided Haven Tooling with a large contract to provide 100
dispatch kits.  These are tools used aboard an aircraft temporarily if there is
a malfunction.  Each kit is worth $1200.  There will be a 40 more required.  Mr. Hart
testified that each kit takes about 5 or 6 hours to make.

[129]     Haven
Tooling is still carrying out fabricating work, and Mr. Hart is still
doing welding.  His speed and stamina are much reduced.  For example, Mr. Vladimir
Kouznetsov,  Haven Tooling’s longest serving employee (and the father of Artem
Kouznetsov), testified about a staircase used to conduct repairs inside an
airplane that the company recently manufactured for which Mr. Hart did the
welding.

[130]     I am
hampered both by significant gaps in the evidence, and the absence of any
comprehensive, reliable analytic evidence of the type that might have been
compendiously provided to the Court by way of an accountant’s report.  So for
example, in the context of the plaintiff’s contentions that his business has
had to contract out more work since the accidents, resulting in reduced
profitability, there is no analysis of the amount of work contracted out before
the accidents, compared with after, and how this has affected profits.  The
plaintiff acknowledged in his evidence that work was contracted out previously,
and that much work would have still been contracted out afterwards, whether he
was injured or not.

[131]     Much of
the evidence depends completely on Mr. Hart’s assertions which are
difficult to test given the nature of the evidence presented.  While it
appeared to me that Mr. Hart was doing his best in this regard, it was also
apparent to me that the reliability of his evidence in this area was poor.

[132]     For
example Mr. Hart produced a book of invoices from 12 subcontractors which
he says represent work that Haven Tooling would otherwise have done itself in
house.  Based upon the invoices the loss relating to subcontracted work was
initially presented at $155,482.  However in his evidence at trial Mr. Hart
conceded that some 30% or 40% of the work represented by the invoices would
have been subcontracted in any event.  In his oral testimony he was taken
through the invoices individually and expressed uncertainty about much more of
the work, in terms of whether he could confidently testify that the work
represented by the invoice would have been done by Haven Tooling but for his
injuries.  There were also some clear errors, for example, of double counting. 
After deducting these items the net amount of lost profits on such contracted
out work is approximately $60,600, using Mr. Hart’s asserted gross profit
margin of 55%.  The defendants contend that the more accurate rate of gross
profits is 45%, relying on the company’s financial statements and the evidence
of Mr. Douglas Hildebrand. On this basis the net amount of this claim
would be $54,541.

[133]     Despite my
difficulties with the state of the evidence, I accept that the company and
hence Mr. Hart have suffered a past loss of income earning capacity.  In
general terms there is considerable support for this in the evidence.  The
company’s sales diminished significantly in the fiscal years 2009 through 2011,
before increasing dramatically in 2012 and 2013.  It is clear that in recent
years the company has contracted out much work that it could have done. It is
also clear that it has given up the sales of weldments to Farwest, described by
Mr. Gutfrucht in his evidence as Haven Tooling’s forte previously.  However
quantification of these losses is problematic.  In the circumstances I must do
the best I can on the basis of the evidence available, while being mindful that
the onus of proof lies with the plaintiff, and that it was open to him to
produce better and more thorough and persuasive evidence.

[134]     I accept
that due to the accident injuries the company incurred extra labour costs for
Daniel Chadwick ($404) and Artem Kouznetsov ($12,795) as claimed.

[135]     I accept
that the company has lost income due to subcontracting work that it would
otherwise do itself in-house, through Mr. Hart’s own labour.  I accept
that the amount of lost profit on such work that was specifically identified by
Mr. Hart in his evidence is $54,541.  I accept that the company’s gross
margin figure that should be used for this assessment is 45%.  (That percentage
is likely generous, as the company’s statements do not include management
salaries paid to Mr. Hart within its direct labour costs calculations, as
the company’s accountant Mr. James Fitzpatrick confirmed in his evidence.)

[136]     This
amount should be adjusted upwards somewhat, as I accept that some further
proportion of the work represented by the invoices should be included. Mr. Hart
testified that he compiled the invoices with the benefit of various drawings
that he did not have readily available to him when he testified at trial.  In
final submissions counsel for Mr. Hart submits that the loss of gross
profits in this “uncertain” category is $35,551.  One third of this amount at
the gross profit rate of 45% rather than 55% is approximately $10,000.  I
conclude that the lost profits in this category are therefore $64,541 ($54,541
plus $10,000).

[137]     I accept
that the company has lost income due to the loss of sales of weldments to
Farwest.  The plaintiff calculates this on the basis of loss of gross profits
at the rate of 45% on the sales of 13 transportation stands (or other types of
large stands) for which Mr. Gutfrucht produced invoices for sales to
Farwest by other companies.  The invoices add to $150,635 U.S.  On this basis
the plaintiff claims 45%, or $67,785 (ignoring exchange rate issues).

[138]     The 45%
gross profit rate is supported by Mr. Hart’s analysis of his costs to
manufacture the one 787 thrust reverser stand (the “yellow stand”) that Haven
Tooling made, and for which he turned down an order for two more.  On his
analysis the company earned $4,306 on an invoice price of $9,500 on that stand.

[139]     However
some the invoices produced represent a higher degree of finishing of the
product than would have been done by Haven Tooling.

[140]     The defence
suggests that the lost profits for a total of 15 stands not sold to Farwest
(the 13 stands in Mr. Gutfrucht’s invoices plus the two other thrust
reverser stands) could be assessed at $51,681.  Somewhat generously the defence
includes the two additional thrust reverser stands in its analysis, whereas the
plaintiff does not, for some reason.

[141]     However
the defence argues that against this amount there should be a number of
offsets.  The defence says that there should be an offset for other work that
Haven Tooling was able to do because it was not doing the labour intensive
weldments.  In his analysis Mr. Hart states that production of the thrust
reverser stand took 76 man hours, including 41 hours of his own time.  The work
was done in January and February of 2010 based upon the date of the order and
delivery dates set out in the invoice.  The stand was a prototype and it is
possible that labour hours would be reduced somewhat on subsequent, similar
projects.

[142]     The
defence argues that Haven Tooling did not have the capacity to do all this work
while still doing all its other work, at least without hiring other, additional
workers, which it failed to do or declined to do.  The defence also contends
that Mr. Hart had to take on more administrative work because Mrs. Hart
stopped working for the company in February 2009, and because the increased
subcontracting work the company has been doing of late results in more
administrative work.

[143]     I accept
the validity of these arguments in general terms.  Translating them into
precise numbers is not possible on the evidence.  The defence suggests a
reduction of 25% to 50% is appropriate.

[144]     All of the
13 stands set out in the invoices produced by Mr. Gutfrucht were produced
during Haven Tooling’s fiscal 2012 year, at which time its tooling sales to
Farwest were expanding rapidly.  Even absent the accidents, with its limited
capacity, Haven Tooling could not have done all of the work it actually did,
plus the subcontracting work it is claiming for the loss of, and the weldment work.

[145]     Taking all
factors into account, a fair assessment of the loss of profits on weldments
prior to trial is $30,000.

[146]     Thus I
assess the pre-tax past business loss as follows:

[147]     The
defendants contend that all past loss amounts must be reduced for income tax,
and submit that the appropriate rate is 30%.  The plaintiff contends that the
reduction for tax should be only 13.5%, based upon the corporate small business
tax rate.  This argument assumes that all profits could be paid as dividends in
future, and likely well in the future, to Mr. and Mrs. Hart, tax
free.  I do not accept that this is a realistic assumption.  While Mr. Hildebrand
used a 35% rate in his assessment, the defendants suggest that 30% is
reasonable.  Obviously there are many potential variables.  I accept that the
30% rate is appropriate on the evidence.

[148]     Therefore
the past calculated loss of earning capacity is $75,418.

[149]     While this
is a calculated amount, and could in principle be increased or decreased on the
basis of positive or negative contingencies or other factors, in my view in the
circumstances of this case $75,418 represents a fair and reasonable assessment
of the value of the plaintiff’s past loss of earning capacity.

[150]     In order
to establish a claim for future loss of earning capacity, the plaintiff must
prove that there is a real and substantial possibility of a future event
leading to an income loss.

[151]     I am not
satisfied that the plaintiff has met this burden in this case.

[152]     As I have
already observed, Haven Tooling is a small company with a limited capacity. 
While it has lost the benefits of Mr. Hart’s endurance in welding work and
other strenuous physical work, it has adapted its business and is lately more
successful than ever.  It has transitioned the focus of its business from large
fabrication work as in the Farwest weldments to machining work that it can
continue to do or that it can subcontract out.  It has a special relationship
with Farwest Aviation, which continues to demonstrate great confidence in and
loyalty to Mr. Hart and his company.  Although it is no longer receiving
weldment orders from Farwest, the company’s sales to Farwest are larger than
ever and will very likely continue to be robust and profitable for the
foreseeable future.  I am not persuaded that but for the accidents the company
would have continued with the large weldment work for Farwest, and at the same
time increased its other sales to Farwest in the area of tooling.  Mr. Hart
will be 55 years of age this year, and given his retirement plans the relevant
time horizon is only about 10 years.

[153]     Haven
Tooling has never grown beyond four employees and a small shop with no
administrative or managerial staff.  Mr. Hart has shown no inclination to
enlarge the scope of the enterprise.  It remains essentially a one person
enterprise.  The company presently continues doing labour intensive work, as
exemplified by the recent Farwest contract for 100 dispatch kits.  This work
will take up 500 or 600 hours of employee time, equivalent to 12 to 15 weeks of
an employee’s labour, at 40 hours per week, unless the work is contracted out.

[154]     There is a
possibility that the company’s sales to Farwest and otherwise could diminish in
future, and that in that scenario, the loss of Mr. Hart’s personal
physical capabilities could translate into a loss, in that the company would
not be able to take on complex or large weldment work, or would have to somehow
find, and pay for, replacement skills.  However on the evidence I do not find
that this scenario is a real and substantial possibility.  There is, as noted,
no reason on the evidence to conclude that Farwest’s business will not continue
to thrive over the relevant time frame or that Haven Tooling’s sales to Farwest
will diminish.  In fact, a more likely scenario is that Haven Tooling’s
business with Farwest will continue to flourish and its profits will continue
to be much higher than they were before the accidents.  Mr. Hart will be
required to spend more of his time in administrative work, as he already has.

C.             
Loss of Housekeeping Capacity

[155]     The
plaintiff claims for loss of housekeeping capacity. Specifically, he points to
three expenses that will be incurred, that he would have otherwise carried out
himself:

[156]     The
defendants dispute the medical necessity for housekeeping expenses.

[157]     However, the
award is for the loss of capacity, which is a compensable asset and does not
require proof the expenses will be incurred: O’Connell v. Yung, 2012
BCCA 57, at para. 67.

[158]     Dr. Villasenor
states that Mr. Hart’s ability to engage in activities of daily living has
“definitely [been] compromised” due to his injuries.  He refers to several
specific activities, including gardening.

[159]     Lately Mr. Hart’s
daughter Amelia has mowed the lawn but that will end next year when she moves
out.

[160]     I accept
the evidence of the plaintiff, his wife and daughter that he formerly did
substantially all of the regular household tasks such as yard work, and home
repair and maintenance, including renovations to the house.  He was in the
process of renovating a bathroom at the time of the first accident. He was
unable to complete the project.  Mr. Hart struck me as a person who would
want to do such tasks himself if he were able to do them. I accept that his
household capacity has been restricted by his injuries, and will likely remain
restricted, and that this loss translates into a real loss in future, of which
the items suggested in submissions are only examples.  The present value of a
loss of $1,500 per annum to age 75 is $20,776.  By age 75 I would expect that Mr. Hart
would have required assistance with heavier household tasks in any event.  In
my view $20,000 is a reasonable assessment of the lost value of Mr. Hart’s
housekeeping capacity.

D.             
Costs of Future Care

[161]      I adopt
the legal principles relating to the assessment of claims for costs of future
care set out in Sendher, at paras. 192-195.  I add that a
physician’s evidence of the necessity of each item claimed is not required.  Rather,
there must be a medical connection, that is, evidence linking the physician’s assessment
of the plaintiff’s injuries to the treatment recommended by the other qualified
healthcare professional, such as a physiotherapist: Gregory v. Insurance
Corporation of British Columbia, 2011 BCCA 144, at paras. 36-39.

[162]     Currently
the plaintiff is undergoing prolotherapy with the naturopathic physician, and
physiotherapy and acupuncture.  He is taking over the counter medications daily
as well as prescription medications such as Lyrica frequently.  In his most
recent report Dr. Villasenor recommends continuation of physical therapy
and massage therapy, as well as pain medications taken orally and diclofenac
gel applied topically.  On the other hand Dr. Kokan suggests physiotherapy
only for limited periods of time following surgery.  Dr. Mutat is in
favour of physiotherapy as needed, for flare-ups in symptoms.  Dr. McGraw
was against passive therapies, but in favour of an active exercise program
supervised by a kinesiologist or personal trainer with appropriate knowledge.

[163]     Knee
surgery will result in the need for significant physiotherapy, as would
shoulder surgery.  Physiotherapy sessions cost $55 and prolotherapy costs
$107.  The plaintiff submits that physiotherapy following surgery will cost
$2,300 for two seven-week sessions of three visits per week.

[164]     In
general, the evidence is that the plaintiff finds relief and is better able to
cope using therapies such as acupuncture, prolotherapy, and physiotherapy.  His
family doctor is in favour of at least some continued therapies.  His ongoing
need for pain medications is clear. He will undergo knee surgery and may
undergo shoulder surgery, which will result in costs for therapy and for medications.
On the totality of the medical evidence I am satisfied that the plaintiff will
necessarily incur significant costs of care in future, as he has in the past,
for therapeutic treatments and for medications.

[165]     The
plaintiff submits that cost of care should be awarded at approximately $35,000
(net of the claims which are more properly characterized as household
capacity).  The defendants contend that cost of care should be awarded only for
kinesiology, prescriptions, and over the counter medications in the amount of
$2,680 to $3,780.  The plaintiff’s claim is far too high, and the defendants’
submission is far too low.  In my view the sum of $20,000 is a reasonable
amount to cover future medications and treatment therapies that the plaintiff
will require, and is likely to utilize.

E.             
Special Damages

[166]     Special
damages are agreed to in part, at $10,435.  The expenses agreed to relate to
such things as prescriptions, physiotherapy, acupuncture, prolotherapy, and
transportation.  The plaintiff claims for an additional amount of $7,485 for
various expenses.  These are disputed.  The items in dispute may be summarized
as follows:

[167]    
The home sauna was not purchased on medical advice and no medical
professional (including Dr. Villasenor) states that it is necessary or
beneficial.  However Dr. Villasenor was not asked about it.  Mrs. Hart
ordered the sauna because she thought it would help him and would be cheaper
than other treatments.  Mr. Hart uses the sauna nightly and he testified
that it provides symptomatic relief.  He is in pain daily due to aggravation of
his injuries by his work, and needs to be able to cope the next day.  Based
upon the evidence of Mr. and Mrs. Hart in the context of all of the
evidence in the case, in my view the expense is reasonable and justified.

[168]     Mr. Hart
replaced his home gym because the old one he had pre-accidents, and regularly
used, was worn out.  This is an expense he would have incurred in any event.

[169]     The home
expenses are for pressure washing ($2,811), lawn care ($743), carpet cleaning
($330) and repairs to an outside staircase that was rotted ($761).  $2,100 of
these claims are not supported by receipts and are at least in part of
questionable reliability.  The staircase invoice includes some undisclosed
amount of materials.  In my view an award of $2,500 is reasonable in relation
to these claims.

[170]     In
summary, the proven special damages are $15,175.

V.             
Summary and Conclusions

[171]     My assessment
of damages is as follows:

VI.           
Costs

[172]     Unless
there are matters of which I am unaware the plaintiff is entitled to costs.

[173]    
If the parties wish to speak to costs they must make arrangements to do
so with trial scheduling within 30 days.

“Verhoeven J."