IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20140328

Docket: 34970

Registry:
Penticton

Between:

Jason Ostrikoff

Plaintiff

And

Daniel Diogo
Oliveira

Defendant

Before:
The Honourable Mr. Justice Kent

Reasons for Judgment

Table of Contents

Introduction. 3

The Plaintiff’s Testimony. 3

The Financial
Information/Documentation. 6

The Accident and the Injuries. 10

The Lay Witnesses. 12

John Zamalynski 12

Richard Sheridan. 14

Paul Hoeree. 14

Lee Flegel 15

Greg Beattie. 17

Chris Sankey. 18

Ms. Jana Hill 19

The Medical Witnesses. 21

Dr. William Regan. 21

Dr. John Oliver 24

Dr. James Johnston. 26

Dr. Troy Pinsonneault 26

Dr. Adam Konanz. 28

Other Expert Witnesses. 29

Mr. Derek Nordin. 29

Ms. Susan Barnes. 30

Ms. Hilary Drummond. 32

Mr. Robert Carson. 34

Causation and the Assessment of
Damages in a Negligence Case. 34

Findings as to Injury and Causation. 37

Mitigation and the Shoulder Surgery
Contingency. 38

Non-pecuniary General Damages. 42

Past and Future Loss of Earning
Capacity. 44

Loss of Future Earning Capacity. Error! Bookmark not defined.

Loss or Impairment of Opportunity to
form an Interdepency Relationship. 53

Cost of Future Care. 54

Summary. 58

Introduction

[1]            
The plaintiff was involved in a motor vehicle accident on August 15,
2009, on Highway 97 near Peachland, B.C. He and a friend were riding their
motorcycles on the highway when a Volkswagen, owned and operated by the
defendant, suddenly pulled into their path and a collision ensued. The
plaintiff had been travelling at approximately 60 kilometres an hour. He
described how his motorcycle “bounced off” the front door and fender of the
defendant’s vehicle, “hit the dirt”, and how he was ejected over the top of the
handlebars and into a nearby ditch.

[2]            
Liability for the accident is admitted by the defendant. The issues for
determination in this action center around the nature and extent of the
injuries sustained by the plaintiff and particularly the compensable losses
caused by same. The major issue in dispute relates to past and future loss of
earning capacity in the context of the plaintiff’s rather unique occupation as
a self-employed designer and fabricator of expensive, custom-built motorcycles.

The Plaintiff’s Testimony

[3]            
The plaintiff is 51 years old, having been born December 28, 1962. He is
single, never having been married. He graduated high school with a Grade 12
education in 1980.

[4]            
The plaintiff has had a varied employment history. He has worked as a
janitor and a DJ in a bar. He worked in his father’s construction company
running heavy machinery, welding and the like. He worked as a sound technician
at a recording studio. He was employed and received some training at his
uncle’s shoe repair store in New Westminster. He obtained training and
qualifications at “sharpening school” in Kansas City and then set up a mobile
tool-sharpening business with his father. He obtained his Class 4 licence and
was employed as a limousine driver for some time (he still has that licence).

[5]            
The plaintiff’s father apparently offered his son the opportunity to
take over the construction company, but the plaintiff says that he “foolishly
refused it”. His father shut the company down and moved with the plaintiff’s
mother to Summerland, B.C., where he opened a business for shoe repair,
tool/skate sharpening, and hockey equipment retail.

[6]            
In 1990, the plaintiff opened his own audio and video business in Kelowna.
However, his father became ill and he left that enterprise. After his father
died, he moved in with his mother at the family home in Summerland and
re-opened the shoe repair business. He also bought an interest in an existing
U-Brew business located in Penticton Plaza.

[7]            
The U-Brew and shoe repair business were the plaintiff’s primary source
of income from 1994 onwards. However, the plaintiff’s first love has always
been motorcycles, and the plaintiff used the separate garage building on his
mother’s property to operate a motorcycle repair business.

[8]            
Over the years, he became increasingly involved in the custom designing and
manufacture of motorcycles, building them from scratch all by himself. He has
designed and built an awarding‑winning prototype for a performance
motorbike that is less costly than a Harley Davidson, which he had hoped to bring
into production at a small plant, which he planned to set up in the Okanagan.
That dream, says the plaintiff, now lies in ruins as a result of the motor vehicle
accident.

[9]            
In 2005, the plaintiff purchased a 6,000 square foot commercial building
at 288 Westminster Avenue West, Penticton, B.C., for $342,000. His plan was to
consolidate all three businesses under one roof, albeit in separate units of
differing size. The property was subject to a mortgage which, in 2006, was
replaced by a further mortgage with the Bank of Montreal pursuant to which the
plaintiff was advanced $180,000. The purpose of these funds was to assist with
the payout of the existing first mortgage, to provide approximately $50,000 for
renovations to the building, and to provide a $60,000 revolving demand loan
facility to assist with the operating expenses of the business.

[10]        
By 2008, the plaintiff says, “business was booming,” and he was working a
minimum of 12 to 14 hours per day. The motorcycle business was doing very
well. Apart from the custom design and fabrication projects, he was also doing
more routine repair and maintenance work on motorcycles, and retail sale of related
clothing, equipment and parts. He had become so busy, he says, that he decided
to close the U-Brew business, sell the shoe repair business (both in the spring
of 2008), and concentrate on the custom motorcycle enterprise. As well, the
plaintiff intended to renovate and rent out the remaining commercial space in
the building on Westminster Avenue.

[11]        
Once he had acquired his own commercial building, the plaintiff also
constructed and opened a small tattoo shop “Unique Image”. Many of his
motorcycle customers were also interested in tattoos, and the plaintiff’s
entrepreneurial interest was triggered. He did a few tattoos himself, but
eventually the space was made available for other “artists” who generally paid
the plaintiff 10 percent of their earnings.

[12]        
The tattoo parlour was effectively closed in the spring of 2010 when the
“artist” in residence was arrested for murder. The space in the building
customized for the tattoo parlour has since remained vacant.

[13]        
The custom design, fabrication, construction and finishing of a motorbike
takes many months and requires much skill and craftsmanship. These bikes can
cost anywhere from $25,000 to $100,000 to build. The plaintiff did all the work
himself, albeit with occasional assistance from a large circle of friends and
motorcycle enthusiasts. Before the accident, he says that he could build two to
three such custom bikes a year, depending on the complexity of the design and
specialized fabrication required.

[14]        
The plaintiff received many awards and accolades for his designs and
craftsmanship. Entered as exhibits at the trial were copies of various awards
received, magazine covers and articles featuring the plaintiff, and photographs
of motorcycles constructed by the plaintiff which had garnered “Best in Show”
awards at motorcycling shows and events over the past decade. The exposure had
a positive impact upon the plaintiff’s reputation and he says he was attracting
customers from all over western Canada and even from Germany and California.

The Financial Information/Documentation

[15]        
The plaintiff operated all of his businesses as a sole proprietorship.
He appears to have relied on his independent accountant to look after the
annual accounting. That accountant prepared the annual income tax returns for
the period 2004 to 2012 which were entered into evidence by consent.

[16]        
The plaintiff did not maintain separate ledgers for any of the
businesses. For tax reporting purposes, all of the businesses were
consolidated and treated as a single entity. There was no documentary
evidence adduced as to the breakdown of revenues and segregated expenses as
between the motorcycle business, the U‑Brew business, the shoe repair shop,
or the tattoo operations. On cross‑examination, the plaintiff
acknowledged his previous examination for discovery testimony to the effect
that in the year 2007 (gross revenues of approximately $169,000), fully
one-third of that amount (i.e., $50,000 to $60,000) was derived from the shoe
repair and U-Brew businesses in equal measure (approximately $25,000 to $30,000
from each).

[17]        
Quite apart from the reporting that is evidenced in the income tax
returns, the plaintiff acknowledged that some of the cash generated by the
business activities was neither recorded nor reported. He claimed the amounts
involved were modest, perhaps in the range of $3,000 to $5,000 in 2008. He also
claimed that all cash which has been received in the business since 2009 has
been declared on his income tax returns.

[18]        
No documentary evidence was tendered respecting the rental income
derived from the plaintiff’s commercial building on Westminster Avenue in
Penticton. Indeed, the only document tendered as evidence was a summary which
the plaintiff had himself prepared that purported to list for the years 2008 to
2013 the tenants in the building, along with the amount they had paid for rent for
each year.

[19]        
In the year 2008, there was only one tenant in the building. In the
years 2012 and 2013, there were five different tenants in the building,
although not all at the same time. The annual rents received during these years
were said to be as follows:

·      
2008 ‑ $4,200

·      
2009 ‑ $7,000

·      
2010 ‑ $13,800

·      
2011 ‑ $25,900

·      
2012 ‑ $27,850

·      
2013 ‑ $25,900 (to October, estimated approximately $30,000
for the year)

[20]        
As indicated above, the plaintiff’s tax returns for the years 2004 to
2012 were put into evidence. Some, but not all, of the returns included the
standard Revenue Canada form “Statement of Business Activities”, which were
evidently prepared by an accounting firm from Penticton, B.C., and which
purported to set out the plaintiff’s aggregate gross annual income, as well as
a breakdown/allocation of “gross profit” after deducting cost of goods sold,
and “net income” after further deducting other business expenses such as
advertising, interest, motor vehicle expenses, professional fees, and the like.
Again, no supporting documentation was put into evidence corroborating either
the income or the expenses claimed; however, the plaintiff testified these
income tax returns were an accurate accounting of the business finances during
the years in question.

[21]        
The annual income reflected in the income tax returns for the years 2008
and thereafter includes the rental income received in those years, presumably in
the amounts set out above. The following chart sets out the plaintiff’s gross
and net income for the years 2004 to 2012 as reflected in the income tax
returns:

[22]        
The plaintiff’s tax returns for 2013 have not yet been prepared. He
testified, however, that the income from his motorcycle business was $32,000
and the rental income from the commercial business was $30,000 for an aggregate
gross income of $62,000 for that year. He does not know what the net income
will be for 2013.

[23]        
The accident happened in August 2009. As a result of the injuries sustained,
the plaintiff says he has been unable to return to his full former physical
capacities in the motorcycle business. Pervasive pain prevents him from doing
the heavy lifting and some of the more arduous tasks. He cannot operate the
“English wheel”, which is the equipment that rolls and shapes the steel to be
fabricated for the bike. He can no longer lift motors, transmissions, or other
heavy components of the motorbike. His energy level has been radically changed,
and he is unable to work as long or as hard as he used to.

[24]        
Because his motorcycle enterprise was essentially a “one-man shop”, the
plaintiff says his injuries have resulted in a steady decline in business (and
related revenue), as increasingly dissatisfied customers have become frustrated
with the amount of time it takes for the motorbike to be built or repaired and
many customers have drifted away. Although it is still open, it is claimed the
business is on the verge of failure.

[25]        
Before the accident, the plaintiff says that he enjoyed an impeccable
credit rating. While he had six or seven credit cards, the accounts were always
paid when due and he had an excellent relationship with his bank (Bank of
Montreal).

[26]        
Various documents were put into evidence to illustrate the plaintiff’s
financial difficulties. On a document dated May 5, 2012, forming part of
materials sent to “Cambridge Life Solutions Inc.”, a debt consolidator, the
plaintiff listed approximately $75,000 in overdue debt on seven credit cards.
He had debts with HSBC, the Royal Bank of Canada, CIBC, and a credit union.
Both CIBC and the Royal Bank issued law suits and obtained judgments for
approximately $15,000 and $35,000, in respect of which they “liened my
building”. The property taxes on the commercial building have gone unpaid, and
in August 2013, the City of Penticton issued official notice of intent to sell
the property to recoup tax arrears. The plaintiff has paid the City enough
money to defer that eventuality for the time being, but he says, “It will be
listed again in September 2014.”

[27]        
The plaintiff attributes all of these financial woes to the motor
vehicle accident and, in particular, the injuries sustained which have
prevented him from carrying on the motorcycle business in the same manner as he
was doing in 2008 and 2009. On cross-examination, however, he was confronted
with a so-called “Financial Hardship Affidavit”, which formed part of the May
2012 Cambridge Life Solutions documentation in which he “verified as an
accurate summary” the following handwritten reasons for financial hardship:

Business is gone.

Economic downturn.

Building bikes are toys, nobody has money for toys.

Retail is gone because of internet.

Customers buy product cheaper
online than at store

[28]        
On re-direct examination, the plaintiff purported to explain all of the
above on the basis that he did not want to disclose the injuries arising from
the motor vehicle accident and wanted to provide a rational excuse which would
be acceptable to Cambridge and would encourage them to take him on as a client.
He claims that Cambridge’s “client acceptance rate” is very low.

The Accident and the Injuries

[29]        
The plaintiff was rendered unconscious at the scene of the accident. He
woke up to find a passerby, who turned out to be a nurse from the Vancouver
General Hospital, trying to remove his gear. An ambulance was called. He was
put in a neck brace and on a board and transported to the Kelowna General
Hospital, where he was treated and released after several hours. Rather
remarkably, the plaintiff did not sustain any orthopedic fractures; however, he
suffered extensive musculoskeletal injury, much of which has not resolved and
which has in the years since become a chronic pain condition.

[30]        
The list of body parts/areas claimed to have been injured in the
accident is long and includes the neck, the shoulders, the ribs, the lower back
and right hip, the right elbow, and the right ankle. The left shoulder injury
seems to be the only one that has completely resolved. All of the others remain
to this date, although each has undergone varying degrees of improvement. In
addition to the trauma to the various body parts referred to above, the
plaintiff also blames the accident for the following:

·      
the development of a large lump in his right chest, which is
extremely tender to the touch;

·      
driving anxiety which has effectively prevented him from riding a
motorcycle, except for two or three times in the summer for short duration;

·      
erectile dysfunction (“the pain overcomes the emotion and
desire”); and

·      
disrupted sleep – the pain causes tossing and turning and broken
sleep patterns.

[31]        
The plaintiff appeared credible and sincere in describing his injuries.
He exhibited clear distress during that part of his testimony. At one point, he
broke down and was sobbing with his face resting on his arms. There is
obviously an emotional overlay to the plaintiff’s symptomology yet none of the
physicians have prescribed, nor has the plaintiff sought out, any psychological
treatment or assistance.

[32]        
In addition to his family physician, Dr. Johnston, the plaintiff
has been assessed by no less than three orthopedic surgeons. They all appear to
agree on the diagnosis and the defendant does not dispute same, namely:

1.     Scapulothoracic
bursitis/”snapping scapular syndrome” (right shoulder);

2.     Myofascial
pain, periscapular muscles and anterior pectoral muscles;

3.     Lipoma on
the anterior chest wall (lump on chest);

4.     Right
elbow medial and lateral epicondylitis (golfer’s/tennis elbow); and

5.     Soft
tissue injury, right hip and right ankle.

[33]        
None of the physicians doubt that the plaintiff suffers pain as a result
of these various conditions, and indeed they all suggest the symptomology is
not likely to change and may be permanent.

[34]        
It should be noted that the plaintiff refuses to take pain medication,
anti‑inflammatories or, indeed, any manufactured pharmaceutical
medication. Based on his own research, he is convinced that the “petro-chemical
base” of such medications is “destroying our minds” and “causes Alzheimer’s
Disease”. The plaintiff, whose mother suffers from Alzheimer’s Disease, says
such prescription medicines are harmful and “don’t cure anything” and so he not
only refused pain medication while in hospital but has also refused anti-inflammatory,
analgesic and cortisone injections/treatments suggested by the orthopedic
surgeons.

[35]        
Notwithstanding his stated aversion to prescription medications, the plaintiff
has nonetheless sought and obtained numerous prescriptions to treat his
erectile dysfunction. Nine such prescriptions (albeit for relatively low
quantities of pills) have been prescribed by his family doctor between the
period April 2011 and April 2013 according to the PharmaNet Patient Record
entered into evidence. The plaintiff says that even though Cialis, Viagra and
Levitra are all “made from petro chemicals and have carcinogens” and even
though they are “harmful” and can cause Alzheimer’s, it is also “hard not to be
intimate” and “I just want a bit of manhood back”.

[36]        
The plaintiff claims to have become withdrawn and introverted. He says his
“dreams have slowly faded away”. His relationship with his fiancée fell apart
and the two separated in late 2012.

[37]        
His hopes of being a successful businessman, the “limelight of the motorcycle
industry”, married to his fiancée and living a fulfilled life have, he claims,
all fallen away. He blames the accident for all of this.

[38]        
The plaintiff acknowledges that the pain in his right shoulder is his
main issue. He was present in court when Dr. Regan testified that his
specialized arthroscopic shoulder surgery (“partial scapulectomy and debridement
of the subacromial bursa”) would probably help the majority of the plaintiff’s
pain symptomology in that area. On cross examination, the plaintiff said he intends
to pursue surgical treatment of the shoulder and then rather enigmatically
stated, “I have been for four years”.

[39]        
The plaintiff says that if his business fails, he has “no idea what I
will do”. While he is still able to do what he called “the piddly stuff” (minor
maintenance and some repairs), the big money is in the speciality of building a
motorcycle from scratch, something he simply cannot do anymore in a timely way,
and even then he requires the assistance of friends for the heavy work. He says
he cannot afford to hire employees, and in any event, it was his craftsmanship
that customers were purchasing, not technical assistance from a mechanic.

The Lay Witnesses

John Zamalynski

[40]        
Mr. Zamalynski has known the plaintiff for 21 years, including the
past 10 years when he has been living in Penticton. Mr. Zamalynski is
a millwright of some 35 years’ experience, and he is also the owner of a prized
2003 Harley Davidson apparently named “Jezebel”. The plaintiff has performed a
wide variety of work on Mr. Zamalynski’s motorbike, including some major
customized repairs following a serious accident some five years ago.

[41]        
Like many of the plaintiff’s other customers, Mr. Zamalynski would
attend at the plaintiff’s motorcycle shop to hang around and be social,
approximately twice a week if not more. He has spent a fair bit of time with
the plaintiff over the years and has observed him on many occasions both before
and after the accident.

[42]        
Mr. Zamalynski described the plaintiff’s pre-accident disposition
as happy-go-lucky, smiling and laughing. He was an extremely hard worker,
seeming to work day and night (“I don’t think he ever slept!”).

[43]        
The motorcycle shop was always “packed” with people and bikes being
repaired. Sometimes the place was so busy the plaintiff was even working on the
sidewalk.

[44]        
The plaintiff was a real “go getter”. He would work in a shoe shop from
8 a.m. to 11 a.m., open the bike shop at 11 a.m. and still go back and forth to
the U-Brew Wine Shop at various times.

[45]        
Mr. Zamalynski describes the difference between the pre and post-accident
plaintiff as “Jekyll and Hyde”…he has become a “whole different person”, grumpy
and sometimes even nasty in his attitude towards people. His business at the
motorcycle shop has become “a lot slower”, and it seems the plaintiff only
really works for a couple of hours in the morning before running out of energy.

[46]        
Before the accident, the plaintiff basically did all of the work
required in the motorcycle shop. Today he works far less and seems much more
tired. He appears to be in pain and has much difficulty holding, lifting and
moving heavy things such as engines, transmissions and the motorcycles
themselves. Mr. Zamalynski has seen the plaintiff wincing, grabbing his
shoulder and the like, although he does not complain much but appears to “suck
it up”.

[47]        
The plaintiff has given up riding his motorbike and no longer joins them
on motorcycle trips. He does not go out socializing anymore. Mr. Zamalynski
does not know anything about the plaintiff’s personal finances, but before the
accident, he always seemed to have money available, whereas these days he
understands the situation is “pretty dire” and the plaintiff is on the verge of
losing his house and his business.

Richard Sheridan

[48]        
Mr. Sheridan is a retired military veteran who also lives in
Penticton. He, too, has been a friend of the plaintiff for approximately 10
years. He, too, has owned motorcycles on which the plaintiff has worked over
the years.

[49]        
He has also spent quite a bit of time at the plaintiff’s motorcycle
shop.

[50]        
Mr. Sheridan says that before the accident, there was a constant
stream of people coming in and out of the motorcycle shop. The plaintiff had
“amazing energy” working “silly” hours, late into the night and early morning. The
plaintiff was a happy, likeable guy for whom motorcycles, both building and
riding, were a passion.

[51]        
Since the accident, Mr. Sheridan says the plaintiff has changed. He
is quiet, emotionally drained, and no longer very active. It now takes him six
months to do something in the motorcycle shop that he would have done in a few
hours before the accident. The shop still seems busy but nothing is coming out
of it in terms of work product: “It is more like a storage place than a
mechanics shop,” he said.

[52]        
Mr. Sheridan has personally witnessed the plaintiff break down and
even start to cry on a couple of occasions. He had never seen anything like
this before the accident.

Paul Hoeree

[53]        
Mr. Hoeree is a full-time truck driver of some 33 years’ experience.
He has known the plaintiff for 15 years. He owns an older 1979 Harley Davidson
which he has taken to the plaintiff since the latter’s shop was opened. The
plaintiff has carried out extensive custom work on the bike which, according to
Mr. Hoeree, is “the best looking of its type”.

[54]        
Before the accident, Mr. Hoeree describes the plaintiff as an “energizer
bunny”, a dynamo who was very social and outgoing and who had a large circle of
friends. Mr. Hoeree spent a lot of time on the road as a truck driver, but
whenever he was home, he would go for motorcycle rides with the plaintiff at
least once a month.

[55]        
Mr. Hoeree described the plaintiff’s talent and creativity in the
customization work. He was very creative but also very hardworking, and on many
occasions, Mr. Hoeree saw the plaintiff still at work late into the night.

[56]        
After the accident, Mr. Hoeree has seen the plaintiff at the
motorcycle shop quite often. He is unable to do what is expected of him in
terms of heavy lifting, pulling motors out of frames, or, indeed, whatever work
might be required with respect to the use of his right arm. This has not only
severely affected the plaintiff’s work but other facets of his life as well.

[57]        
Mr. Hoeree says the plaintiff is “not the same guy” and his whole demeanour
has changed. He described the plaintiff as depressed and reclusive, afraid even
of riding a motorcycle.

[58]        
Mr. Hoeree has no knowledge of the plaintiff’s financial affairs
but he believes the plaintiff is struggling. His observation is that the
plaintiff’s business was very much a going concern before the accident, but the
volume today is probably 25 percent of what it once was. While the
plaintiff’s support group was quite large after the accident, people have been
losing interest as things have not changed and “fewer folks are showing up”.

Lee Flegel

[59]        
Mr. Flegel is a licenced automobile technician and also a qualified
automobile/motorcycle inspector who has known the plaintiff for approximately 16
to 17 years. He has been a full-time employee of Penticton Toyota for the past
five years and before that was an apprentice at that location for some four
years. He is paid $28 an hour plus bonuses based on productivity.

[60]        
Mr. Flegel purchased his first motorcycle, a Yamaha R-6 street bike
from the plaintiff, and the plaintiff has done maintenance and repair work on
both that bike and its subsequent replacement over the years.

[61]        
Mr. Flegel started helping the plaintiff from time to time in his
motorcycle shop from 2003 onwards. Immediately following the accident in August
2009, he was hired by the plaintiff, and paid $45 an hour, to provide
assistance in the shop in the months of August and September 2009. He did not
work at the shop thereafter because ICBC was apparently unprepared to fund any
further payments.

[62]        
Mr. Flegel observed that there is more heavy manual labour involved
in working on motorcycles rather than automobiles. The latter has the benefit
of hoists and cranes to remove engines and other heavy components, whereas in
motorcycle work, it is necessary to unbolt and hand-lift out of the frame such
heavy components.

[63]        
Mr. Flegel described the plaintiff as a fun-loving guy but one who
worked very hard. He always displayed great energy, a radio was always blasting
in the motorcycle shop and there was a good mood. There were always lots of
people coming and going at the motorcycle shop, including out-of-towners on the
weekends, people who had come to learn of the plaintiff’s excellent reputation
as a custom motorcycle craftsman.

[64]        
Mr. Flegel says that although he is qualified to work on
motorcycles, there are many aspects of skilled customization work that he
simply cannot do. This includes working the “English wheel” to bend and shape
metal (“a fine art”), welding, detailed painting, fabrication design and the like.
The plaintiff was meticulous in these things, always adamant about doing the
difficult work himself.

[65]        
Mr. Flegel has noticed significant changes in the plaintiff since
the accident. He complains that his shoulder “is killing him” and he simply
cannot do any of the heavy work that he used to do. He cannot operate the English
wheel, so there is no customization. He does not use his right arm as much as
he used to and seems to have trained himself to use the left arm more. There
seems to be a posture change, a drop in the right shoulder. He is not so upbeat
but is subdued, sticks to himself and has pretty much become a home body.

[66]        
Mr. Flegel notes that there are not as many people around the
plaintiff’s shop as there used to be.

Greg Beattie

[67]        
Mr. Beattie has known the plaintiff since he moved to Penticton
with his 1975 custom Harley Davidson in February 2009. His bike had already
been customized on Vancouver Island before he moved, but the plaintiff did some
finishing work which was of excellent quality.

[68]        
When Mr. Beattie arrived in Penticton, he went to both of the two
shops in that city that worked on Harley Davidsons. He chose the plaintiff’s
shop because of recommendations from others, the awards and photographs
displayed on the walls, and the “better vibe” about the enterprise.

[69]        
Mr. Beattie described how the plaintiff has been unable to do much
of the work required by his customers after the accident. With respect to Mr. Beattie’s
bike, Mr. Beattie pays the plaintiff for the materials but does a lot of
the work himself using the plaintiff’s equipment. He says other customers are
doing the same thing with the plaintiff performing more of the coaching role to
help them.

[70]        
Mr. Beattie referred to a joke that was circulating about how the
name of the business should be changed to “C. G. Motorcycle Storage” because it
was taking so long for work to get done there.

Chris Sankey

[71]        
Mr. Sankey has known the plaintiff for 10 to 15 years. He has a
2006 Harley Davidson “Street Glider” which has been customized extensively. The
plaintiff did all of the work on Mr. Sankey’s motorcycle.

[72]        
Before the accident, he and the plaintiff would spend a lot of time
together riding their bikes, attending bike shows and so on. The plaintiff did
“amazing work” was “always on the go” and the line-ups at his shop were huge.

[73]        
Mr. Sankey’s motorcycle is in the plaintiff’s shop at present and
has been for quite some time. He says that he has to do the work on his bike
himself because the plaintiff is unable to do much of it. The plaintiff coaches
him on how to do things. He said that customers who go to the plaintiff’s shop
must understand they have to help themselves out.

[74]        
Mr. Sankey described how the plaintiff’s involvement in the work of
the shop has radically changed. He used to build from scratch, shaping and
fabricating all of the components, but all of that has changed because “he
can’t do the work”. Mr. Sankey has not seen the plaintiff build a motor or
even pull one out of a motorcycle since the accident.

[75]        
Mr. Sankey has helped the plaintiff in the motorcycle shop from
time to time. He does this in exchange for being charged cost on parts he
requires and also access to the shop so he can work on his bike himself.

[76]        
Mr. Sankey describes the plaintiff’s changed personality. Having a
bike, he says, is a lifestyle…it is all about having similarly minded friends,
going riding together, having fun and getting away. The plaintiff no longer
participates in any of this since he no longer rides a bike.

[77]        
He does not seem as happy anymore, and no longer jokes around.

Ms. Jana Hill

[78]        
Ms. Hill is a 47-year-old hairdresser who operates her own salon
business as a sole proprietorship in Penticton. She has known the plaintiff for
approximately 12 years firstly as a good friend, shortly before the
accident as a romantic couple, and thereafter until relatively recently as the
plaintiff’s fiancée.

[79]        
Of all the witnesses who testified at the trial, Ms. Hill is the
one who perhaps knows him best. She provided compelling and emotional testimony
as to the plaintiff’s lifestyle and character both before and after the motor
vehicle accident.

[80]        
Ms. Hill first met the plaintiff when she took a pair of shoes to
be repaired at his shoe repair shop. She found him to be a “neat, cool, dynamic
guy” and they became close friends.

[81]        
She described the plaintiff as a “renaissance man”, someone who was
capable of doing just about anything. He knew wines, built shoes, loved music,
was an organic gardener and food connoisseur, and could design, draw and build
just about anything.

[82]        
Socially, the plaintiff was a friendly, outgoing charismatic individual
who exuded positive energy and who had a wide circle of friends. He was
energetic and a very hard worker who took great pride in his painstaking craftsmanship.

[83]        
The plaintiff’s motorcycle shop became a “social mecca” for motorcycle
enthusiasts. People, including Ms. Hill, would go there after work just to
socialize. Often times the social circle at the motorcycle shop would morph
into barbecues with people just hanging out and having fun.

[84]        
The plaintiff rode his motorcycle all the time, and he and Ms. Hill
went on plenty of riding trips. They would attend trade shows which were lots
of fun and where the plaintiff knew all sorts of people. The plaintiff was
“renowned” as a custom bike builder and so well known that hanging around with
him at these events was “kinda like being with a rock star”.

[85]        
Ms. Hill said that both she and the plaintiff were A-type
personalities who liked to do lots of different things. They were an excellent
match, and each stimulated the other and made the other feel special. After
they started dating, there was much happiness, regular intimacy and exciting
positive prospects and expectations.

[86]        
All of this changed in the years following the motorcycle accident. Ms. Hill
described the plaintiff as being “crippled” and “broken”. The last few years
have been “like watching someone age before your eyes”.

[87]        
She describes the plaintiff as being “depressed, unhappy and managing
his pain all the time”. He is simply not capable of doing the things that gave
him so much pride before. It has been “heart-breaking to watch him struggle”. The
plaintiff is a proud individual who “pretends really well”, but “everything has
become harder and harder for him”.

[88]        
The relationship between the plaintiff and Ms. Hill suffered and
eventually fell apart. She says the plaintiff has become unhappy, completely
depressed and hopeless and that it increasingly became “harder to be a
cheerleader for so long”. Their intimate life changed radically. The plaintiff
became impotent even though he tried some “enhancing drugs”. They could not
even snuggle in bed because of his pain issues.

[89]        
The bike shop business has completely changed. It used to be a thriving
enterprise with lots of bikes parked outside and lots of people around. After
the accident, he was unable to do a lot of the work and his productivity became
less and less. He started asking people for help with different tasks, and
while his friends were initially happy to assist, over time they have become
tired of it. Today, she says maybe three guys go regularly to the shop to give
the plaintiff a hand, but essentially there is nobody there anymore and people
no longer take their bikes to the plaintiff’s place of business.

[90]        
Ms. Hill described the plaintiff as a “pig-headed, stubborn” man
who “shouldn’t be doing 90 percent of the things he does”. She doubts he will
ever retire but will continue working on motorcycles until he is 90 years old. However,
although she does not know the details of his personal finances, she knows he
has sold off almost everything in the past three years. All of his “toys” are
gone such as wave-runners, trailers, bikes and even furniture. It appears to
have been a “yard-sale” just to survive.

[91]        
On cross-examination, Ms. Hill was asked whether she and the
plaintiff had ever sought counselling. She said both had, albeit separately. The
plaintiff has been friends for many years with someone who is either a
psychologist or a psychiatrist, and he has been speaking to that person about
his difficulties. She does not know the details of these sessions.

[92]        
Ms. Hill was also asked about the economic downturn and its impact
upon both her own business and the environment in Penticton generally. She said
her hairdressing business has declined. She used to work 40 hours a week but
these days it is only 12 hours a week. She said she had been “focussing on
other things” although she did not elaborate. She commented, “Penticton is not
a thriving place right now, and it is getting worse.”

[93]        
When it was suggested to Ms. Hill that the plaintiff’s business had
also been affected by the economic downturn, she expressed opinion to the
contrary. She wryly observed people who ride motorcycles are exceptionally
committed to keeping them in great shape and that people would prefer to put
their money into their bike rather than their hair.

The Medical Witnesses

Dr. William Regan

[94]        
Dr. Regan conducted an independent medical examination of the
plaintiff and prepared a detailed report dated July 20, 2012. He is an
orthopedic surgeon who has a rather unique sub-speciality with disorders of the
shoulder and, in particular, the surgical treatment of “scapulothoracic bursitis”.

[95]        
Dr. Regan has a very impressive résumé. He obtained his medical
degree in 1981 and his orthopedic fellowship in 1986. He has been a professor
of orthopedics in the faculty of medicine at UBC since 1991. He is the Head of Arthroscopic
Reconstruction and Joint Preservation in the Department of Orthopedics and has
a practice at the University Hospital – UBC site that is dedicated to orders of
the upper extremity and knee. He has written and lectured extensively with a
particular emphasis on elbow and shoulder arthroscopy both in Canada and
internationally.

[96]        
There are very few orthopedic surgeons who have expertise in arthroscopic
surgery involving the removal of the bursa between the scapula and the chest
wall. Such surgery is only performed infrequently and most orthopedic surgeons
are not comfortable performing it. Dr. Regan has performed this surgery 30
to 40 times. As the other orthopedic surgeon witnesses in this case testified, Dr. Regan
is the expert in Canada for this type of surgery and they defer to his
opinion on the subject.

[97]        
No challenge was made to Dr. Regan’s qualifications as an expert
witness nor to the admissibility of any portion of his July 20, 2012 report.

[98]        
Dr. Regan obtained a history from, and performed a physical
examination of, the plaintiff on July 3, 2012. He reviewed the MRI and x-ray
imaging of the plaintiff performed at various dates in late 2009 and 2010.

[99]        
Dr. Regan’s diagnosis of the plaintiff’s medical problems caused by
the accident are described in his July 20, 2012 report and are set out verbatim
in paragraph 32 of these reasons above.

[100]     Dr. Regan
testified that 70 percent of the plaintiff’s chronic pain condition is derived
from the scapulothoracic bursitis in the right shoulder. He notes that the
majority of cases involving this condition gradually settle, but because there
has not been any change in the plaintiff’s condition for a number of years,
“the problem is a permanent part of his pain cycle unless something is done for
him”.

[101]     The
balance of the plaintiff’s pain condition is derived from right shoulder
myofascial pain, epicondylitis in the right elbow, right buttock pain, right
ankle pain (peroneal tendonitis), and diffuse chest wall pain. With respect to
these other conditions, Dr. Regan is of the view that no surgical
intervention is required but that most of these symptoms will likely gradually
settle over time and especially so if the periscapular pain problem can be
eliminated or improved.

[102]     The
question, then, is whether the scapulothoracic bursitis can be corrected or
improved through surgery, in particular “arthroscopic partial scapulectomy plus
debridement of the subacromial bursa”. Dr. Regan thinks it can and he
recommends the surgery.

[103]     The
surgery involves the administration of a general anaesthetic, and two or three
holes are drilled into the scapula. A “shaver” is then used to remove part of
the bone, as well as the bursa (the sheath between the scapula and the chest
wall).

[104]     Another conservative
way of attempting to treat this condition is by way of corticosteroid
injection, which one of the other orthopedic surgeons had suggested to the
plaintiff and which the latter had refused. Dr. Regan says such injections
can “blunt the inflammation of the bursa but in the majority of cases it is not
curative”. It can solve the problem for three months but might make matters
even worse thereafter. There are also small risks (less than one percent) of
side effects such as allergic reactions, infection at the injection site, even necrosis
if the treatment is repeated too much.

[105]     Dr. Regan
points out that most of his patients have had a lot of conservative treatment
already before they are referred to him. The referrals come from other
physicians, often other orthopedic surgeons. He describes himself as the
“treater of last resort”. However, he says the arthroscopic surgery approach to
treatment of this condition is a “real advance” in the field, and if he
proposes such surgery for any of his patients, he is confident the patient will
be helped.

[106]     Dr. Regan
says he is “not tooting my own horn”, but he has had patients with pain for
over 25 years who have been “written off” and his surgery has “transformed
them”. Ten years ago, the success rate in his cases was 70 percent but he is
now having a doctoral student update the subsequent data, which he believes
will show the success rate is now in the 80 to 90-percent range.

[107]     As
indicated earlier in these reasons, the plaintiff was present in court when Dr. Regan
was giving his testimony, and thereafter on cross-examination, the plaintiff
testified that he does indeed intend to pursue surgical treatment of his shoulder.
One very important question in this case is, therefore, what is the likely
outcome of such surgical treatment?

[108]     The
question was squarely put to Dr. Regan during his testimony. He said he
“can’t honestly answer” if the plaintiff will be able to return to custom
motorbike fabrication, including all the heavy work involved in that occupation.
He said that if the plaintiff “had a great result” and “did extremely well”,
then in his opinion the plaintiff has “more than a 50-percent chance” that he
could return to such work. Even then, of course, the plaintiff would not be
completely pain free because of the pain emanating from the other parts of his
body, but Dr. Regan opines that these other complaints would probably
prove sufficiently tolerable to the plaintiff to allow him to continue working
in this area.

[109]     Following
any surgery recommended by Dr. Regan, it will take approximately 12 weeks
for the plaintiff to recover his motion and strength in the shoulder area.

[110]     Dr. Regan
acknowledged that there are the usual risks associated with surgery of this
nature; however, “the complication rate is relatively low in experienced
hands”.

Dr. John Oliver

[111]     Dr. Oliver
is an orthopedic surgeon from Kelowna, B.C., who conducted a medical
examination of the plaintiff and prepared a report for plaintiff’s counsel
dated January 11, 2012. His report was based on an interview and physical
examination of the plaintiff conducted in Kelowna on January 9, 2012.

[112]     No
objection was taken to either Dr. Oliver’s qualifications as an orthopedic
surgeon nor to the admissibility of any portion of his report.

[113]     In Dr. Oliver’s
opinion, the plaintiff’s symptomology with his right elbow, back of the neck,
and right ankle are all attributed to “irritability of the soft tissues”, for
which no specific treatment is recommended and in respect of which the
conditions are “not likely to change”.

[114]     Dr. Oliver
expressed essentially the same opinion with respect to the right scapula
condition, which he believed to be caused by “irritation of the bursa between
the scapula and the chest”. Here, he suggested there might be an option for
surgical intervention by an “expert in arthroscopic treatment of shoulder
conditions and who has experience with removal of the bursa between the scapula
and the chest”. He observed this type of surgery is “infrequent” and the results
are individual. He also opined that in the absence of any such surgery, the
current condition at the right shoulder was not likely to change.

[115]     On cross-examination,
Dr. Oliver confirmed that Dr. Regan was “absolutely” an expert in the
area of the suggested surgery and that he would defer to Dr. Regan’s
opinion regarding any likely outcome of such surgery. He also testified:

·      
the ankle condition was stable and the plaintiff should be able
to walk properly;

·      
there was a full range of motion in the plaintiff’s neck;

·      
the lump in front of the right shoulder was not related to the
motor vehicle accident;

·      
self-supervised activities such as stretching, strengthening and
fitness should be enough to treat the balance of the plaintiff’s conditions and
chiropractic, massage and physiotherapy treatments were not necessary in that
regard; and

·      
treatment by anti-inflammatory medication might assist with
symptom management and improve function (although it will not correct a
permanently inflamed bursa).

[116]     On
redirect examination, Dr. Oliver clarified that chiropractic, massage or
physiotherapy modalities might possibly provide temporary relief of
symptomology from time to time.

Dr. James Johnston

[117]     Dr. Johnston
appears to be the plaintiff’s family physician, although I was advised by
counsel that the plaintiff did not visit physicians very often, and hence no
report or evidence was obtained from Dr. Johnston regarding treatment in
the period of time immediately following the accident.

[118]     Nonetheless,
at the request of plaintiff’s counsel, Dr. Johnston did prepare a November
28, 2013 letter which was tendered into evidence without objection by the
defendant. The letter was evidently requested to address the etiology of the
lipoma (lump) on the plaintiff’s right chest and the opinion is as follows:

“It is my opinion that Mr. Ostrikoff’s
observed right pectoral soft tissue mass was caused by the above noted MVA. Mr. Ostrikoff
denies the presence of this mass prior to the MVA. In the accident he suffered
a direct blow to the region where the mass has grown. Comprehensive radiologic
investigation including x-ray, ultrasound, CT scan and MRI indicates the mass
is benign, appearing suggestive of a lipoma. Definitive pathologic diagnosis
can only be confirmed by biopsy. Further management with surgical excision
should be considered if Mr. Ostrikoff continues with disabling symptoms in
relation to this mass. In my experience I have observed that lipoma growth can
occur in areas of blunt trauma most typically in males vulnerable to lipoma
formation”

Dr. Troy Pinsonneault

[119]     Dr. Pinsonneault
is an orthopedic surgeon who has prepared three reports dated December 28, 2011;
May 21, 2013; and June 20, 2013, respectively. Dr. Pinsonneault is not a
treating physician of the plaintiff but, at the request of Dr. Johnston,
saw the plaintiff on two occasions, July 29, 2010 and August 26, 2010.

[120]     No
objection was taken to Dr. Pinsonneault’s qualifications as an orthopedic
surgeon, nor as to the admissibility of any portion of his three reports.

[121]     Dr. Pinsonneault
first examined the plaintiff on July 29, 2010. At that time, his diagnosis, as
set out in his December 28, 2011 report, was:

1.     blunt
trauma with subsequent crepitus of the scapulothoracic joint right shoulder;

2.     supraspinatus
tendonopathy (inflammation and pain in one of the four tendons comprising the rotator
cuff); and

3.     a benign
lipoma anterior axillary region.

[122]     At that
time, the CT scan of the scapula and scapulothoracic joints was normal. Dr. Pinsonneault
was of the opinion that the crepitus was secondary to a “thickened”
scapulothoracic bursa, and he recommended a cortisone injection in that area
which the plaintiff declined.

[123]     Dr. Pinsonneault
recommended non-surgical management modalities such as massage, chiropractic
and MIS treatments. He was of the opinion the plaintiff could continue to work
“and was not likely doing any likely further harm to his shoulder or to the
scapulothoracic articulation”.

[124]     In his
second report of May 21, 2013, Dr. Pinsonneault elaborated upon the
diagnosis and treatment of the post-traumatic scapulothoracic bursitis and the
supraspinatus tendonitis. The former is “inflammation and thickening of the
tissue between the scapula and the rib-cage which can occur after blunt trauma”.
The doctor opined “the vast majority of cases resolved with the passage of time
and modality such as physiotherapy”. A cortisone injection into the bursa can
decrease inflammation and symptoms, and in his oral testimony, he noted such
injections are generally not curative although sometimes they can be.

[125]     Dr. Pinsonneault
noted the palpable and audible crepitus that occurs with the rotation of the
scapula can be “disconcerting”; however, “it is rarely associated with any
permanent harm or irreversible damage”.

[126]     With
respect to the supraspinatus tendonitis, Dr. Pinsonneault commented it was
“likely secondary to dysfunctional scapular mechanics and poor posture”. In his opinion,
both conditions generally improve over the course of time with non‑operative
care and the degree of disability is generally not high.

[127]     In the May
21, 2013 report, Dr. Pinsonneault expressed the opinion “I would expect
that [the plaintiff] should be able to carry on in his occupation doing
motorcycle customization and repair”.

[128]     The third
report from Dr. Pinsonneault dated June 20, 2013, was evidently in
response to the report by Dr. Regan. Dr. Pinsonneault seems somewhat
less enthusiastic about the recommendation for surgery to address the
plaintiff’s scapulothoracic bursitis. He notes that such surgery is most
successful when there is an identifiable boney or soft tissue mass in the
diagnostic imaging. No such mass was found in Mr. Ostrikoff’s imaging, and
Dr. Pinsonneault suggested any surgery should be “a last resort”.

[129]     On cross-examination,
Dr. Pinsonneault acknowledged that Dr. Regan was one of only a
handful of shoulder experts in this province who deal with the most complex
shoulder surgeries. Dr. Pinsonneault has not done the surgery himself, and
he said he would defer to Dr. Regan’s opinions regarding appropriateness
of such surgery and likely outcomes.

Dr. Adam Konanz

[130]     Dr. Konanz
is a duly licenced chiropractor who prepared a report dated June 12, 2013,
regarding the plaintiff’s 11 visits for treatment starting May 8, 2013. No
objection was taken either to Mr. Konanz’s qualifications nor to the
admissibility of any portion of his report.

[131]     Dr. Konanz
did not appear to be aware of the plaintiff’s various consultations with
orthopedic surgeons. He purports to diagnose “lower cervical C5-C7, T2, T4-T6, right
L5 and right sacroiliac segmental dysfunction”.

[132]     Dr. Konanz
opines that following the plaintiff’s eleven chiropractic visits there was
“marked improvement to the plaintiff’s lower back and lower cervical spine”, no
significant improvement for the thoracic complaints and no improvement in the
right shoulder. He says the prognosis for the plaintiff is guarded, but he
recommends maintaining the current level of care for the next 10 to 12 weeks
and “ongoing care to treat periodic recurrence of his complaints, the frequency
of which will depend on the physical stress Mr. Ostrikoff is exposed to in
future”.

[133]     There is
nothing in Dr. Konanz’s report which indicates the cost of either his past
or proposed future treatment of the plaintiff.

Other Expert Witnesses

Mr. Derek Nordin

[134]     Mr. Nordin
is a vocational rehabilitation consultant and following an April 22, 2013 interview
with the plaintiff and the administration of a full battery of vocational
testing, he prepared a report dated May 9, 2013.

[135]     Mr. Nordin
has been qualified as an expert witness in vocational rehabilitation in the
courts of B.C., Yukon, Alberta, Saskatchewan and New Brunswick. No objection
was taken to his qualifications as such an expert in this case nor to the
admissibility of his report.

[136]     Much of Mr. Nordin’s
report recites the medical opinions and the subjective self-reporting of Mr. Ostrikoff.
More helpful are Mr. Nordin’s observations based on the actual test
batteries, which include the following:

·      
the results on the occupational interest questionnaire indicate
the plaintiff is more interested in “realistic” activities: i.e., working with
or repairing machines;

·      
on the academic achievement tests, the plaintiff scored at less
than a Grade 9 level for all of the areas tested;

·      
on the aptitude test battery, the plaintiff scored in the bottom
third of the normative population for seven of the nine aptitudes tested;

·      
the results indicate the plaintiff is not a suitable candidate
for formal training programs;

·      
given his test results, age, current and likely chronic symptoms,
the plaintiff’s vocational alternatives are limited (Mr. Nordin “assumes”
the plaintiff does not consider a return to shoe repair or tool sharpening as a
feasible option); and

·      
the plaintiff’s best option is to continue with his repair
business for as long as he can, as the self-employment permits a flexibility to
accommodate symptoms not likely available if working for someone else.

[137]     On cross-examination,
Mr. Nordin acknowledged he had not been advised of the U-Brew business, the
tattoo parlour enterprise, nor the operation of a tanning booth by the
plaintiff at various times over the years. He did reiterate that the plaintiff
is “a bit of a character” and “likely won’t do very well working for others”.

[138]     He
believes self-employment is the best option for the plaintiff.

Ms. Susan Barnes

[139]     Ms. Barnes
is a physiotherapist who has been trained and certified to perform functional capacity
evaluations since 1993. She has undertaken approximately 150 such evaluations
over the years, including one performed on the plaintiff March 19 and 20, 2012,
in respect of which she prepared a formal report dated March 30, 2012.

[140]     No
objection was taken to Ms. Barnes’ qualifications as a functional capacity
evaluation expert nor to the admissibility of any portion of her March 20, 2012
report.

[141]     The
plaintiff’s functional capacity evaluation involved an assessment which took
place over two days during which time questionnaires were completed, a history
was taken, medical records were reviewed, and a battery of tests were
performed.

[142]     Some of
the plaintiff’s self-reporting to Ms. Barnes illuminates his functional
difficulties at work. Bearing in mind this reporting occurred approximately two
and one-half years after the accident, the following paragraphs resonate:

When asked to describe a typical day, Jason reported that he
usually gets up at 6 am and stated that he does not sleep well. He stated that
he gets up, has coffee and breakfast and does some work at home until 9:30am
when he opens his store. Jason reported that he has a spray booth at his home
and this is where he preps and paints the bikes. Jason stated that he stays at
the store from 9:30am to 6pm and usually does not take a lunch break. He stated
that he leaves the shop at 6pm and goes home and makes dinner. Jason reported
that he spends the evening doing a few more hours of work and usually goes to
bed between 1 to 2am

…Jason stated that he is currently 60% as productive as he
used to be at work; Jason reported that he does not have the strength,
endurance and mobility in his right upper limb or the tolerance for continuous
heavy arm use that is required to work full time building and repairing
motorbikes. He stated that his back pain and right buttocks symptoms also limit
his general mobility, and walking and standing tolerance. He stated that he is
less productive because he needs to manage his symptoms by frequently changing
position, pacing the use of his right arm and using his left (non-dominant) arm
more often. Jason stated that he currently works alone and has approximately 40 hours
per month of help from friends

…Jason stated that he is
currently working 72 to 82 hours a week, but due to having to pace and
frequently interrupt tasks, estimating that he is 30 – 40% less productive.

[143]     Ms. Barnes’
conclusion is that the plaintiff’s demonstrated ability level does not meet the
functional requirements of an owner/operator of a motorcycle repair shop,
namely, a “medium/heavy level of functional strength, good overall mobility,
good tolerance to constant upper limb use, prolonged standing and the ability
to work long hours”. She recommended that if the plaintiff continues with this
line of work, he be provided with assistance with the heavier and more
demanding aspects of the job. She also noted, however;

Jason may need alternate
employment, modification of activities and ongoing management of his symptoms
on a long term basis. In regards to these changes in his life, and adjustment
in expectations, coming to terms with new limits and embarking on some new
activities may be a good new direction for him at this time. Some counselling
regarding these issues may be helpful to Jason.

Ms. Hilary Drummond

[144]     Ms. Drummond
is a registered occupational therapist with 35 years’ experience in that
profession. She has been preparing cost of future care reports for insurers,
health trusts, the legal profession and individuals since 1989, and has
previously been qualified in the Supreme Court of British Columbia as an expert
in the field of occupational therapy.

[145]     Ms. Drummond
prepared a report dated June 20, 2013, in which she sets out the cost of
various services and supports which have been recommended to the plaintiff by
other health professionals and in a couple of instances by Ms. Drummond
herself based on her own assessment of the plaintiff’s functional ability. No
objection was taken to Ms. Drummond’s qualifications nor to the
admissibility of any portion of her June 20, 2013 report.

[146]     Ms. Drummond
interviewed and assessed Mr. Ostrikoff on June 10, 2013. Although a full
occupational therapy assessment was completed by her, it was apparently not
documented “due to time constraints” and the report is what she called a “cost
of care summary” only. In that regard, Ms. Drummond identifies the
following costs for the following “interventions”:

1.     physiotherapy
following Dr. Regan’s arthroscopic surgery: $840 to $1,680;

2.     10
sessions of intramuscular stimulation (“to determine if they are helpful”):
$335 to $610;

3.     physiotherapy
(“7 treatments to determine if the plaintiff would benefit from treatment”): $350
to $490;

4.     massage
therapy (based on recommendations from a massage therapist from whom no
evidence was provided): $1,960 (initial use therapy), $960 annual cost
thereafter;

5.     chiropractic
treatment (based on speaking to a chiropractor in Summerland who did not give
evidence): $620 to $740;

6.     gym
program (membership at a fitness facility in Penticton with several sessions
with a fitness instructor): $1,002.75 for a nine month program;

7.     MRI (one
MRI for the elbow): $895;

8.     ankle
boots (annual cost for custom-made boots to be replaced each year): $1,000 to
$1,500;

9.     tennis
elbow brace: $41.95 annually;

10. ankle stabilization brace: $52.45
to $90.55 annually;

11. snow removal ($40, four to six
times per year): $160 to $240;

12. sit/stand stool:  $469.28 to $588;
and

13. self-propelled lawn mower with
electric starter (to be replaced every four years following expiry of warranty):
$671.98.

[147]     Even
though no formal objection was taken to this report, some of Ms. Drummond’s
evidence suffers from foundational deficiencies. Recommending treatments to
“determine if they are helpful” is not a solid basis for awarding future care
costs. Similarly, speaking to a chiropractor who has never treated or assessed
the plaintiff as the basis for recommendations regarding chiropractic treatment
that “may benefit” the plaintiff is wholly inadmissible evidence. Recommendations
based on an “occupational therapy assessment” which was completed but the
details of which were not actually put into evidence are similarly of limited
value.

Mr. Robert Carson

[148]     Mr. Carson
is an economist who has been qualified many times as an expert before the
Supreme Court of British Columbia for the purpose of calculating present values
of both cost of future care claims and claims for past and future income loss. For
the purposes of the present case, Mr. Carson has prepared two reports,
each dated February 18, 2014, providing present value multiplier tables for
both cost of future care calculations and loss of future income scenarios.

[149]     In his
report respecting present value calculators of future loss of income, Mr. Carson
also expresses opinions specific to sole proprietors of small business such as
the plaintiff:

Sources of loss in the event that a sole proprietor of a
small business is injured include decrease in the level of business activity,
which can be observed as decreases in gross revenue, and increases in costs. With
regard to decreases in gross revenue these will exceed actual losses by the
amount of gross revenue that would normally cover the variable costs of doing
business. With regard to increased costs these will typically be in the form of
wage expenses incurred to perform work tasks that the proprietor wouldn’t
ordinarily do

With regard to the duration of loss, if the effects of an
injury are expected to be permanent then the period of loss continues to the
age of retirement…self employed people tend to retire later than the average
labour force participant

Business owners may write off
interest on business debt as a business expense. Thus, a portion of the cash
flow of the business will finance the purchase of assets belonging to the
owner, for this reason it may be better for a business owner to continue to
operate a business, even if net business income is modest and could be largely
replaced by transfers from public income security programs for older people.

Causation and the Assessment of Damages in a
Negligence Case

[150]     In Hoy
v. Williams, 2014 BCSC 234, I had occasion to summarise causation
principles as follows:

[112]    Much judicial ink has been spilled on this subject.
Fortunately, a very useful and recent summary of the law in this area can be
found in Brewster v. Li, 2013 BCSC 774 as follows:

[77]      In cases of negligence,
the plaintiff must establish: (1) that the defendant was the “cause in fact” of
the damage suffered and (2) that the defendant was a “proximate cause” of the
damage, “in other words, that the damage was not too remote from the factual
cause. … The remoteness inquiry assumes that but for the defendant’s wrongful
act, the plaintiff’s loss would not have occurred, but places legal limits on
the defendant’s liability” (Hussack v. Chilliwack School District No. 33,
2011 BCCA 258 at para. 54, 19 B.C.L.R. (5th) 257).

[78]      The plaintiff must
establish causation for both injury and loss. If a defendant did not
cause an injury, (s)he is not liable for the losses flowing from that injury.
Even if a defendant did cause an injury, (s)he is not liable for any losses or
damages that were not caused by the injury. In Blackwater v. Plint, 2001
BCSC 997 at para. 364, 93 B.C.L.R. (3d) 228 [Blackwater BCSC],
Chief Justice Brenner, as he then was, adopted the following dichotomy between
“injury” and “loss”:

"injury" refers to the
initial physical or mental impairment of the plaintiff’s person as a result of
the [defendant’s act], while "loss" refers to the pecuniary or
non-pecuniary consequences of that impairment.

[79]      The basic principle of
tort law is that the defendant must put the plaintiff back in the position she
would have been in had the defendant’s tortious act not occurred (Athey v.
Leonati, [1996] 3 S.C.R. 458 at para. 32). The corollary of this
principle is that the defendant need not compensate the plaintiff for any loss
not caused by his/her negligence or for “debilitating effects of [a]
pre-existing condition which the plaintiff would have experienced anyway” (Athey
at para. 35).

[80]      Since the burden is on
the plaintiff to prove causation, she must establish that the defendant’s
tortious act caused both an injury (i.e. her pain disorder and/or
her depression) and a resulting loss (e.g. non-pecuniary loss or lost
wages). “The former is concerned with establishing the existence of liability;
the latter with the extent of that liability” (Blackwater BCSC at
para. 363). In the case at hand, if the plaintiff cannot establish that
one of her injuries was caused by the MVA, then she cannot recover from
the defendant for the losses that flowed from that injury. Additionally, if the
plaintiff cannot establish that the injury caused by the defendant, in turn,
caused a certain loss, then she cannot recover from the defendant for that
loss.

[81]      The test for causation in
Canada is the “but-for” test (Bradley v. Groves, 2010 BCCA 361 at para. 37,
8 B.C.L.R. (5th) 247; Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21-22,
[2007] 1 S.C.R. 333; Blackwater v. Plint, 2005 SCC 58 at para. 78,
[2005] 3 S.C.R. 3 [Blackwater SCC]; Clements v. Clements, 2012
SCC 32 at para. 8, [2012] 2 S.C.R. 181). To assess whether the defendant
caused an injury, the trial judge asks if, without the defendant’s tortious
act, the injury would have resulted. If the answer is “yes”, the defendant is
not liable for the injury or the losses flowing from it (Athey at para. 41).
If the answer is “no”, the defendant is liable to the plaintiff for the whole
of the losses flowing from the injury (Athey at paras. 22 and 41).

[82]      Once causation for an
injury is established, the defendant is liable to the plaintiff for all
of the loss(es) flowing from that injury. The losses “flowing” from an injury
are those losses which the plaintiff proves, on a balance of probabilities,
would not have occurred “but-for” the defendant’s act (Blackwater SCC at
para. 78; Smith v. Knudsen, 2004 BCCA 613 at para. 26, 33
B.C.L.R. (4th) 76).

[83]      It is
also necessary to recognize that this case engages both “thin skull” and
“crumbling skull” principles. Both these principles were succinctly summarized
in Athey:

[34]      …The "crumbling
skull" doctrine is an awkward label for a fairly simple idea. It is named
after the well-known "thin skull" rule, which makes the tortfeasor
liable for the plaintiff’s injuries even if the injuries are unexpectedly
severe owing to a pre-existing condition. The tortfeasor must take his or her
victim as the tortfeasor finds the victim, and is therefore liable even though
the plaintiff’s losses are more dramatic than they would be for the average
person.

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

[84]      Recent cases from both the B.C. Court of Appeal
and B.C. Supreme Court continue to paraphrase this language. Some examples
include: T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670
at paras. 26-37, 22 B.C.L.R. (4th) 1; Zacharias v. Leys, 2005 BCCA
560 at paras. 13-21, 219 B.C.A.C. 88; Penland v. Lofting, 2008 BCSC
507 at paras. 93-97, 60 C.C.L.T. (3d) 265; Carr v. Simpson, 2010
BCSC 1511 at paras. 113-117.

[151]     The
discussion above respecting the plaintiff’s burden to prove both injury and
loss is central to the present case. The defendant does not seriously contend
that the accident did not cause the injuries referred to in paragraph 32 of
these reasons (with the exception of the chest lipoma in respect of which there
are opposing opinions by Dr. Johnston and Dr. Oliver as to etiology). However,
the defendant strenuously contends that the defendant has failed to meet the onus
of proof respecting the nature and extent of any resulting pecuniary loss,
particularly insofar as any decline in the motor cycle business is concerned.

Findings as to Injury and Causation

[152]     I have no
hesitation in finding that all of the physical injuries described by the
plaintiff and the medical doctor were caused by the accident. The evidence to
that effect is overwhelming.

[153]     Insofar as
the chest lipoma is concerned, I prefer the opinion of Dr. Johnston set out in
paragraph 118 of these reasons. There is no doubt that the plaintiff sustained
a blunt trauma to his chest as a result of the accident and Dr. Johnston’s
observation that lipoma growth can occur in persons, typically males,
vulnerable to such formation following trauma leads to the common sense
conclusion that the two are related in this case.

[154]     I also
accept the plaintiff’s evidence respecting the nature and extent of the pain he
has suffered and continues to suffer as a result of the injuries and I find
that, because there has not been any meaningful change in the plaintiff’s
condition for a number of years, the pain is chronic and will remain permanent
unless improvement is triggered by the shoulder surgery recommended by Dr.
Regan.

[155]     I also
accept the plaintiff’s evidence, and in particular that of Ms. Hill, respecting
the resulting changes in the plaintiff’s mood, demeanour, and decreased
functionality arising from both the injuries and the resulting chronic pain.

[156]     I accept
the plaintiff’s evidence and that of the other lay witnesses respecting diminished
energy levels and reduced ability to lift and move heavy objects. The evidence
in that regard was overwhelming and none of it was rebutted whether through
cross examination or by meaningful evidence to the contrary.

[157]     In short,
I find that the plaintiff has proved both the existence of the injuries and
physical impairments alleged in the action and that the same were caused by the
defendant’s negligent operation of the vehicle and the ensuing collision. But
that is not the end of the matter; the nature and extent of the loss i.e. the
pecuniary or non-pecuniary consequences of the injuries is more problematic. This
speaks to issues of mitigation, the shoulder surgery contingency, and more
broadly as to the quality of the evidence respecting any decline in the
plaintiff’s motor cycle business and any other pecuniary loss that might have
been caused by the accident. These issues are addressed below.

Mitigation and the Shoulder Surgery Contingency

[158]     While
related, these are different issues requiring separate treatment. The plaintiff
has already stated that he intends to undergo the shoulder surgery recommended
by Dr. Regan. The question, then, becomes the manner in which the likely
outcome of that surgery might impact the assessment of damages. It is a contingency
that clearly has to be taken into account.

[159]     On the
other hand, mitigation or more correctly, any failure to mitigate, involves a
different set of principles and a different onus of proof.

[160]     In a tort
case, damages will not be recoverable for any loss that the claimant reasonably
could have avoided. Such failure to mitigate is frequently argued in personal
injury cases in the context of medical treatment recommended by physicians or
other medical professionals which the plaintiff has either refused or failed to
follow.

[161]     The
leading case is Janiak v. Ippolito, [1985] 1 S.C.R. 146, in which the
Supreme Court of Canada held that the question of whether a person has been
reasonable in refusing recommended treatment is one for the trier of fact to
decide, taking into account the degree of risk from the treatment, the gravity
of the consequences of refusing it, and the potential benefit to be derived
from it. The court stated (at para. 36) that mitigation is not so much a “duty”
that a plaintiff owes to a defendant, but rather a failure to mitigate is a
defence to the amount of damages that the defendant is obligated to pay.

[162]     In Morgan
v. Gailbraith, 2013 BCCA 305 at para 78, the Court of Appeal recently
affirmed that Chiu v. Chiu, 2002 BCCA 618 is the “guiding authority” on
the question of mitigation. In the latter case, the court stated at para. 57:

The onus is on the defendant to prove that the plaintiff
could have avoided all or a portion of his loss. In a personal injury case in
which the plaintiff has not pursued a course of medical treatment recommended
to him by doctors, the defendant must prove two things:

(1)        that the plaintiff acted unreasonably in eschewing
the recommended treatment and;

(2)        the extent, if any, to
which the plaintiff’s damages would have reduced had he acted reasonably.

[163]     In Gregory
v. ICBC, 2011 BCCA 144, a case where the allegation of failing to mitigate
involved a refusal to undergo cortisone injection treatment, the court stated
that it:

…. would describe the mitigation
text as a subject/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.

[164]     In this
case, the failure to mitigate alleged by the defendant, on with whom the onus
of proof resides, relates to the plaintiff’s refusal:

(1)        to take analgesic medication for pain and;

(2)        to undergo the
cortisone injection treatment for the shoulder                         recommended
by the orthopedic surgeons.

[165]     It has
been noted earlier in these reasons that the plaintiff refuses to take pain
medication, anti-inflammatories or indeed any manufactured pharmaceutical
medication. The refusal is based on the plaintiff’s belief that the
“petro-chemical base” of all such manufactured pharmaceutical medication is
harmful because it “destroys the mind” and “doesn’t cure anything”.

[166]     It is
certainly arguable that the proverbial “reasonable” patient with the
plaintiff’s injuries and chronic pain ought to undergo or partake of analgesic
or anti-inflammatory treatments/medication. Their very purpose is to possibly provide
at least temporary relief.

[167]     It is also
arguable in this context that the defendant must take the “thin skulled”
plaintiff as he finds him. Here the so-called thin skull would be the
plaintiff’s possibly irrational aversion to manufactured pharmaceutical
medication. Of course, the defendant quite rightly notes the plaintiff is
prepared to compromise his “principles” insofar as erectile dysfunction is
concerned and that it is illogical and unreasonable for the plaintiff to invoke
those same principles to refuse medication that might alleviate chronic pain.

[168]     At the end
of the day, however, the failure to mitigate allegation founders on the second
aspect of the defence, namely, proof that the treatment would have
reduced or improved the plaintiff’s symptomology. As in the Gregory case,
the evidence is that the suggested treatment is not curative and that it might
afford some temporary relief and, in the case of the cortisone injection, only
sometimes with long term benefits. As in the Gregory case, this evidence
“does not meet the threshold for reducing an award”.

[169]     The
shoulder surgery contingency is qualitatively different from any issue
regarding failure to mitigate. The surgery has been recommended by Dr. Regan, a
foremost expert in this area, and the plaintiff accepts the recommendation. The
question then, is not whether there is a failure to mitigate, but rather the
likelihood of a successful outcome and the extent to which it might permit the
plaintiff to re inject new life and vigour into the allegedly failing motor
cycle business or to improve the prospects of other occupational pursuits.

[170]     In Janiak,
the plaintiff’s main injury was disc protrusion of the cervical spine. The
medical experts recommended course of treatment was a discectomy with a spinal
fusion. That type of operation entailed an approximately 70% change of success
and, if successful, could result in an almost 100% recovery for the plaintiff
who could thereafter return to work as a crane operator. However, the plaintiff
suffered a great fear of surgery of any kind and insisted on an assurance of
100% chance of success before consenting to undergo the procedure. Since no
physician was prepared to give such an absolute guarantee, he refused the
surgery. His back injury did not improve and he continued to be disabled and
out of work.

[171]     The
Supreme Court of Canada devoted most of its judgment to the question of
unreasonableness, onus of proof, and how it impacted the plaintiff’s cause of
action. Having thus addressed the principles respecting failure to mitigate,
the question then arose how this impacted the assessment of damages. In that
regard, the court endorsed certain “first principles” namely:

in determining what did happen in the past, a court decides
on the balance of probabilities….. anything that is more probable than not is
treated as certain; but in assessing damages which depend on the court’s view
as to what will happen in the future, the court must make an estimate as to
what are the changes of the relevant event occurring and those chances are to
be directly reflected in the amount of damages” (at para 42).

[172]     Ultimately,
the Supreme Court adopted the approach taken by the majority of the Ontario
Court of Appeal in the case. The Court of Appeal had taken into account the
fact that the recommended surgery entailed only a 70% chance of success and had
adjusted the award for loss of income upward in order to take into account the
fact that, even if the respondent had acted reasonably in the circumstances,
his recovery would not have been assured. A series of adjustments were then
made to reflect the contingencies entailed in the surgery and the respondent’s
future job prospects had he undergone the operation.

[173]     This
particular case is not unique. There have been other cases where plaintiffs
were planning to undergo recommended surgery following the trial and the court
took that eventuality into account in the assessment of damages. Examples
include:

·       
Perez v. Vancouver (City), 2002 BCSC 1773 (75% chance the
plaintiff’s hand and wrist pain would be alleviated or significantly reduced by
surgery);

·       
Milliken v. Rowe, 2011 BCSC 1458 (outcome of recommended
surgery surgery uncertain but plaintiff had no option but to undergo same);

·       
Paschalidis v. Stutely, 2013 BCSC 1611 (medical evidence
of a surgical success rate of 70% in patients such as the plaintiff).

[174]     In all of
these cases no mathematical formula was brought to bear. Rather, the chance of
surgery either eliminating or reducing the plaintiff’s symptomology was factored
in as a potentially positive contingency reducing the amount of damages that
might otherwise been awarded.

[175]     There is
no doubt Dr. Regan is confident the shoulder surgery will help the plaintiff. His
success rate has historically been 70% but he believes it is now in the 80% to
90% range. For some patients with chronic pain, the surgery has been
transformative. Dr. Regan cannot guarantee that the surgery will permit the
plaintiff to fully return to his work as a custom motor bike fabricator, but if
the surgery goes well there is “more than a 50% chance” that this will occur.

[176]     As in the
cases referred to above, this is a positive contingency that must be factored
into the assessment of damages.

Non-pecuniary General
Damages

[177]     Non-pecuniary
general damages are intended to compensate the injured party for pain and
suffering, loss of enjoyment of life, and/or loss of amenities. The
compensation awarded should be fair to all parties, and fairness is often
measured against awards made in comparable cases. Such cases, though helpful,
serve only as a rough guide as each case depends on its own unique facts.

[178]     A useful,
often cited, list of factors that may influence an award of this type of
damages can be found in Stapley v. Hejslet, 2006 BCCA 34, and 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;

(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)

[179]     The
defendant cites cases suggesting an award of non-pecuniary damages in the range
of $50,000. The cases include:

·       
Hauer v. Clendenning, 2010 BCSC 366 (45 year old plaintiff
with chronic shoulder pain, rotator cuff tendonitis, rejection of orthroscopic
surgery and cortisone injections due to aversion to same…. $50,000, reduced by
30% on account of the plaintiff’s failure to mitigate by refusing injections in
surgery);

·       
Hayes and Cabrera v. Lanphier, 2003 BCSC 1126 (26 year old
plaintiff with fractured scapula, nerve injury and left shoulder impingement
syndrome, successful surgery (by Dr. Regan), but residual pain and impairment: 
$50,000);

·       
Letourneau v. Min, 2001 BCSC 1519 (33 year old plaintiff
with chronic pain arising from soft tissue injuries to neck, right shoulder and
thoracic spine:  $40,000).

[180]     The
plaintiff cites authorities supporting non pecuniary damage awards in the range
of $85,000 to $150,000;

·       
Hoy v. Williams, 2014 BCSC 234 (36 year old fire fighter
with chronic low back pain, persistently depressed mood, irritability and
fatigue:  $85,000 before deduction for pre-existing “crumbling skull” issues);

·       
Power v. White, 2010 BCSC 1084, (50 year old plaintiff
with torn pectoral muscle incapable of surgical repair causing ongoing pain and
disability related to use of right arm and significant loss of highly active
lifestyle, negative effect on mood and emotional well-being, as well as marital
relationship: $135,000);

·       
Soligo v. Turner, 2002 BCCA 73, (27 year old school
teacher and elite curler with soft tissue injuries to left shoulder resulting
in constant pain notwithstanding surgery and cortisone injections, complex
regional pain syndrome and post-traumatic adhesive capsulitis of left
shoulder:  $150,000).

[181]     There is
no doubt that the plaintiff in this case has suffered disabling pain for
several years and that it has resulted in a significant impairment of lifestyle
as well as romantic and social relationships. There appears to have been
significant emotional suffering, although no treatment has been prescribed or
sought.

[182]     The
shoulder surgery contingency must be factored into the non-pecuniary general
damage award in this case. The plaintiff states he will be undergoing the
surgery recommended by Dr. Regan and the latter opines there is a significant
likelihood that the surgery will alleviate, if not completely eliminate, the
shoulder complaints which form the significant majority of the plaintiff’s pain
syndrome.

[183]     Having
regard to the case law cited, the Hejslet factors, and the shoulder
surgery contingency, I assess the plaintiff’s award for non-pecuniary general
damages in the amount of $105,000.

Past and Future Loss of Earning Capacity

[184]     Compensation
for past loss of earning capacity is to be based on what the plaintiff would
have, not could have, earned but for the injury that was sustained: Rowe v.
Bobell Express Ltd., 2005 BCCA 141 at para. 30; M.B. v. British
Columbia, 2003 SCC 53 at para. 49. The burden of proof of actual past
events is a balance of probabilities.

[185]     However, an
assessment of loss of both past and future earning capacity also involves
consideration of hypothetical events. The plaintiff is not required to prove
these hypothetical events on a balance of probabilities. The future or
hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation: Athey v. Leonati at
para. 27; Morlan v. Barrett, 2012 BCCA 66 at para. 38.

Loss of Future Earning Capacity

[186]     In Hoy,
the relevant principles were reviewed as follows:

[187]     With
respect of loss of future earning capacity, the relevant damage assessment
principles were reviewed in Hoy as follows:

[153]    A claim for loss of future earning capacity raises
two key questions: 1) has the plaintiff’s earning capacity been impaired
by his or her injuries; and, if so 2) what compensation should be awarded for
the resulting financial harm that will accrue over time. The assessment of loss
must be based on the evidence, and not an application of a purely mathematical
calculation. The appropriate means of assessment will vary from case to case: Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); Pallos v. Insurance Corp.
of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.); Pett v. Pett,
2009 BCCA 232.

[154]    The assessment of damages is a matter of judgment,
not calculation: Rosvold v. Dunlop, 2001 BCCA 1 at para. 18.

[155]    Insofar as possible, the plaintiff should be put in
the position he or she would have been in but for the injuries caused by the
defendant’s negligence: Lines v. W & D Logging Co. Ltd., 2009 BCCA
106 at para. 185. The essential task of the Court is to compare the likely
future of the plaintiff’s working life if the accident had not happened with
the plaintiff’s likely future working life after the accident: Gregory v.
Insurance Corp. of British Columbia, 2011 BCCA 144 at para. 32.

[156]    There are two possible approaches to assessment of
loss of future earning capacity: the “earnings approach” from Pallos,
and the “capital asset approach” in Brown. Both approaches are correct.
The “earnings approach” will generally be more useful when the loss is easily
measurable: Perren v. Lalari, 2010 BCCA 140 at para. 32. Where the
loss “is not measurable in a pecuniary way”, the “capital asset” approach is
more appropriate: Perren at para. 12.

[157]    The earnings approach involves a form of
math-oriented methodology such as i) postulating a minimum annual income loss
for the plaintiff’s remaining years of work, multiplying the annual projected
loss by the number of remaining years and calculating a present value or ii)
awarding the plaintiff’s entire annual income for a year or two: Pallos v.
Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.); Gilbert
v. Bottle, 2011 BCSC 1389 at para. 233.

[158]    The capital asset approach involves considering
factors such as i) whether the plaintiff has been rendered less capable overall
of earning income from all types of employment; ii) whether the plaintiff is
less marketable or attractive as a potential employee; iii) whether the
plaintiff has lost the ability to take advantage of all job opportunities that
might otherwise have been open; and iv) whether the plaintiff is less valuable
to herself as a person capable of earning income in a competitive labour
market: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); Gilbert
v. Bottle, 2011 BCSC 1389 at para. 233; Morgan v. Galbraith,
2013 BCCA 305 at paras. 53 & 56.

[159]    Though the capital asset approach is not a
“mathematical calculation”, the trial judge must still explain the factual
basis of the award: Morgan v. Galbraith, 2013 BCCA 305 at para. 56.

[160]    The principles that apply in assessing loss of
future earning capacity were summarized by Low J.A. in Reilly v. Lynn,
2003 BCCA 49 at para. 101:

The relevant principles may be
briefly summarized. The standard of proof in relation to future events is
simple probability, not the balance of probabilities, and hypothetical events
are to be given weight according to their relative likelihood: Athey v.
Leonati, [1996] 3 S.C.R. 458 at para. 27. A plaintiff is entitled to
compensation for real and substantial possibilities of loss, which are to be
quantified by estimating the chance of the loss occurring: Athey v. Leonati,
supra, at para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d)
133 at 135 (C.A.). The valuation of the loss of earning capacity may involve a
comparison of what the plaintiff would probably have earned but for the
accident with what he will probably earn in his injured condition: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is
not the end of the inquiry; the overall fairness and reasonableness of the
award must be considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11;
Ryder v. Paquette, [1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover,
the task of the Court is to assess the losses, not to calculate them mathematically:
Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R.
(3d) 248 (C.A.). Finally, since the course of future events is unknown,
allowance must be made for the contingency that the assumptions upon which the
award is based may prove to be wrong: Milina v. Bartsch, supra, at 79.

[161]    The plaintiff may be
able to prove a substantial possibility of future loss of income despite having
returned to his or her usual employment and even where he has received a raise
or obtained a promotion: Perren v. Lalari, supra; Combs v.
Bergen, 2013 BCSC 321. There is no principle of law requiring the medical
evidence to establish an impairment of earning capacity; rather, such
impairment is established on the totality of the evidence: Miscisco v. Small,
[2001] B.C.J. No. 2042.

[188]     The
application of these principles to the plaintiff’s claims for both past and
future loss of earning capacity is made difficult because of the quality of
evidence respecting the plaintiff’s earnings over the years. It is submitted
that it would be “unfair to punish Mr. Ostrikoff by virtue of the fact that he
is a self-employed small business person” and I agree with that sentiment. However,
while the assessment of damages for loss of income earning capacity is an
exercise in the proverbial “crystal ball gazing”, there must still be a
reasonable evidentiary platform for analysis.

[189]     In this
case, matters are complicated because of a variety of factors including:

·      
the plaintiff operated several separate small business to
different extents over the different years including, the shoe repair shop, the
U-Brew business, and the motor cycle customizing/repair business;

·      
no evidence was adduced respecting segregation of revenues and
expenses as between the various businesses;

·      
although the plaintiff evidently relied on an accounting firm to
prepare an annual “Statement of Business Activities” for income tax reporting,
no witnesses were called from that accounting firm to provide any corroboration
or analysis respecting history, growth, decline, or allocation of revenues and
expenses over the years;

·      
in 2005, the plaintiff purchased a commercial building with a
plan to consolidate all three businesses all under one roof, thereby altering
the previous model of renting space for two of the businesses and operating one
(a motor cycle business) out of his garage;

·      
the revenue generation structure again changed in 2008 when the
plaintiff decided to close the U-Brew business and the shoe repair shop to
focus on the motor-cycle business and the rental of other parts of the
commercial building to tenants;

·      
the net income derived from the businesses over the years before
the accident has been highly variable (a low of $5,000 in one year to a high of
$24,000 in another) but invariably has been modest;

·      
vague evidence was proffered respecting the economic downturn in
2008 and its negative impact upon the business environment in the Penticton
area generally and on the custom motor cycle manufacturing/repair business in
repair;

·      
in at least one instance, the plaintiff has himself attributed
the decline in his business to both that economic downturn and the availability
of cheaper on line retail shopping; and

·      
the only evidence as to revenue and expenses for 2013 is a
“guestimate” by the plaintiff without any corroboration of any sort.

[190]     Against
this back-drop, the plaintiff claims $350,000 for past loss of earning capacity
and $1.3M for loss of future earning capacity. Two mathematical models are
proposed in support of the claims. The first is a “labour replacement cost”
model and the second is a model based on projected net earnings derived from
the business. The numbers generated under both models are very substantial and
in my opinion have no air of reality.

[191]     The cost
of replacement labour approach to valuing a loss of earning capacity was
recently utilized by the Court in Reynolds v. Sangara & Sons Trucking
Ltd., 2014 BCSC 212 (“Reynolds”). Mr. Reynolds, who was 46 years old
at the time of the accident, was the owner of a home-based aromatherapy products
company. As a result of the accident he suffered neck injuries, low back
injuries, dizziness along with mood anxiety, sleep disruption and ongoing
persistent pain. As a result of the injuries, Mr. Reynolds could no longer do
the heavy lifting of product involved in the storage and mixing processes and
he was unable to work as fast or as productively as was the case before the
accident. However, notwithstanding the debilitating effects of the injuries
suffered, Mr. Reynolds was able to carry on with the business without any significant
losses by careful use of replacement labour, both paid and unpaid.

[192]     The loss
of capacity claim was presented on the basis of the cost of funding one full
time employee who would be able to undertake the tasks that Mr. Reynolds was no
longer able to do. A wage of $15.00 per hour generated a replacement cost of
approximately $33,000 per annum giving rise to an actuarially calculated
present “value” of $145,000 for loss of earning capacity to trial and $885,000
for future loss of earning capacity to an assumed retirement age of 70.

[193]     The court
agreed that attributing the cost of one full time employee at the suggested
rate as the value of the plaintiff’s diminishment of his ability to work
productively in all facets of the company business would reasonably and
appropriately compensate Mr. Reynolds for his past loss of income earning
capacity. $145,000 was awarded under this heading subject to the deductions
required by virtue of sections 95 and 98 of the Insurance (Vehicle) Act,
R.S.B.C. 1996, c.231.

[194]     However,
the court was reluctant to accept a purely mathematical model with respect to
the claim for loss of future earning capacity. Although it found replacement
labour cost might be an appropriate way to value loss of capacity in some cases

I do not, however, accept that the various calculations of
[the plaintiff’s] alleged loss of future earning capacity, based upon the
present value of money, should be applied in this case.

I say that because, in my
opinion, the loss of future earning capacity award in this case should not be
based upon an income stream analysis. It is, in my view, more appropriately
assessed as the loss of a capital asset with the valuation of the cost of
replacement labour being considered but not arithmetically extrapolated. In my
view, such a mathematical approach does not adequately reflect still unknown
contingencies which may positively affect the plaintiff’s future capacity to do
more or more efficient work for the company. (at paras. 106-107)

[195]     The court awarded
$300,000 for future loss of income earning capacity rather than the $885,000
posited under the mathematical model.

[196]     In the
present case, the plaintiff claims that the “value” of his pre-accident working
capacity was $45 an hour being the sum that was paid to Mr. Flegel to provide
assistance in the plaintiff’s shop in the months of August and September 2009
following the accident. This generates a “value” of approximately $94,000 per
annum and under what the plaintiff calls the “Reynolds approach” yields
a gross figure for the 55 months since the accident in excess of $400,000
before any deduction on account of taxes or contingencies.

[197]     Adopting a
similar approach to the future loss of earning capacity claim and using the
appropriate actuarial multiplier to an assumed retirement age of 70, gives rise
to a posited “value” in the range of $1.3M to $1.5M.

[198]     The
alternative approach is a mathematical model premised upon anticipated gross
income in the plaintiff’s business of  $150,000 to $175,000, the deduction of
anticipated annual rental income from that figure, and deducting historically
“averaged” expenses to give rise to an anticipated net business income figure
that would have been derived before the accident. The problem with the model,
quite apart from its purely mathematical nature, is that the numbers used are
theoretical or inaccurate. They are premised upon the plaintiff’s evidence that
he “hoped” to earn gross income of $150,000 to $175,000 but for the accident
and they assume a level of expense that is not supported by any forensic
analysis of the actual costs associated with building custom motor cycles.

[199]     For his
part, the defendant says the plaintiff has simply not proven any past financial
loss that is causally related to the accident. The absence of supporting
documentation, combined with unreliable self-reporting and the down turn in the
economy militates, so the defendant says, in favour of the finding that the
plaintiff has not met the onus of proof respecting any past loss of earnings
claim.

[200]     With respect
to the claim for loss of future earning capacity, the defendant submits this is
“difficult to assess because the plaintiff’s actual earning capacity is
obscured by his complicated employment history and lack of detailed business
records” and the claim should in any event be substantially reduced because of
the shoulder surgery contingency and a failure to mitigate by refusing analgesic
medication. The defendant submits that an appropriate award for the plaintiff’s
loss of earning capacity in this case would be $30,000.

[201]     There is
no question the plaintiff was a vigorous, hard working individual before this
accident and that he was a custom motor cycle builder of considerable repute. He
had decided to close the other businesses in favour of concentrating on the
custom motor cycle business and renting out the balance of the space in the
commercial building that he had purchased. This decision was only a year and a
half old when the accident occurred so it is not surprising that there is
little evidence available from that period on which to assess the profitability
and potential success of the business model.

[202]     There is
no doubt that the plaintiff was injured in the accident and that the injuries
have resulted in chronic pain and a significant impairment of the plaintiff’s
ability to carry out many of the tasks associated with custom motor cycle
fabrication and the heavy manual labour elements required for same.

[203]     The
evidence from the plaintiff, his former fiancée Ms. Hill, as well as from the
other lay witnesses as to the change in the plaintiff and the decline in the
motor cycle business is both compelling and convincing. I have no doubt that,
had the accident not occurred, the plaintiff would have persevered notwithstanding
any negative impacts arising from the economic downturn and that he would have
continued to attract loyal customers and a steady, perhaps even increasing,
book of business. All of this has changed as a result of the accident and there
is no doubt that the plaintiff has and will likely continue to suffer some
financial loss as a consequence.

[204]     The
difficulty in this case lies with the valuation of the plaintiff’s loss. He had
a history of fairly modest net income derived from his business and there is no
rational evidentiary basis on which to speculate that this would have
substantially changed. The arithmetical models proposed by the plaintiff for
assessing the loss generate figures which do not bear any resemblance to the
net income that the plaintiff would likely have received from the business had
the accident not happened, whether before or after the date of trial.

[205]     With
respect to the claim for past loss of earning capacity, a fair approach to
valuing that loss would be to award the difference between actual net income
derived from the business and a reasonable projected net income had the
accident not occurred. I recognize this is largely speculative, given the
absence of forensic accounting, but a fair and sensible scenario reflecting
some increased success with the recently changed business models would posit a
net income from the motorcycle business in the range of $20,000 for 2009
increasing to approximately $30 – $35,000 in 2013-14. I note, parenthetically,
that these numbers also approximate the annual cost of a full time employee
assistance at the rate of $15 an hour or half time assistants at $30.00 an hour.
In the result, taking into account actual earnings over the same period, I
assess the plaintiff’s claim for past loss of income earning capacity in the
amount of $95,000. If the parties are unable to reach agreement on the amount
to be deducted from the award by reason of the provisions of section 95 and 98
of the Insurance (Vehicle) Act, they may apply for further direction.

[206]     With
respect to the claim of future earning capacity, as was the case in the Reynolds
decision, the award should not be based on any net income stream analysis. It
is more appropriately assessed as the loss of a capital asset with some net
income stream analysis being taken into account as an indicator of overall
fairness and common sense.

[207]     On a
“traditional” approach, there is no doubt that the plaintiff’s injuries have
rendered him less capable overall of earning income from all types of
employment having regard to each of the factors identified in Brown v.
Golaiy. One of the realities in this case, however, is that,
notwithstanding a tremendous work ethic, the plaintiff’s academic achievements
and ability are best described as modest, the plaintiff does not have any
meaningful history of working for others, and that as the vocational experts
testified, both his character and his aptitudes were best suited for
self-employment options both before and after the accident. Assessing the
future loss of earning capacity on an arithmetical basis reflecting an hourly
value of his skill sets, whether at the suggested $45.00 an hour or any other
number, is not a realistic approach. More appropriate would be an approach
which involves a comparison of what the plaintiff probably would have earned in
the future but for the accident with what he likely will earn in his injured
condition subject, of course, to a consideration of overall fairness and
reasonableness as well as positive and negative contingencies, including in particular
the shoulder surgery contingency.

[208]     Having
regard to all of the relevant factors, including the positive contingencies
arising out of the possibility of a successful shoulder surgery significantly
reducing the plaintiff’s pain symptomology and resulting physical impairment, I
conclude that an award of $325,000 would appropriately compensate Mr. Ostrikoff
for his future loss of income earning capacity.

Loss or Impairment of Opportunity to form an
Interdepency Relationship

[209]     The
plaintiff claimed $150,000 as damages for alleged loss or impairment of
opportunity to form a permanent interdependency relationship which might
reasonably have been expected to have produced financial benefits.

[210]     This type
of claim has been recognized by the courts in appropriate cases. The claim must
be specifically pled and the appropriate evidence must be adduced: Moll v.
Parmar, 2012 BCSC 1372. Cases where such awards have been made generally
involve modest amounts.

[211]     There is
both a pecuniary and non-pecuniary aspect to any loss of opportunity to form a
permanent interdependency relationship. Care must be taken to distinguish
between the two so as to avoid double compensation. Loss of the rich emotional
benefits of a loving relationship must be compensated for under the heading of
“non-pecuniary loss” or not at all.

[212]     The
evidence in this case does not support any award for damages for loss of
financial benefits that might be derived from a permanent interdependency
relationship. The plaintiff has never been married. For sure, Ms. Hill his
former fiancée gave compelling evidence as to the strength of her affection for
and relationship with the plaintiff which eventually came to an end as a result
of the difficulties and changes wrought by the accident and its aftermath. I
have taken into account, albeit in a conservative way, the non-pecuniary aspect
of the loss of this relationship in the award for non-pecuniary damages.

[213]     An award
for the loss of any financial benefit to be derived from the relationship with
Ms. Hill, or indeed, any other possible relationships in the future that may
have been lost, is entirely speculative and is not in any way supported by the
evidence in this case.

Cost of Future Care

[214]     The
principles applicable to the assessment of claims and awards for the cost of future
care might be summarized as follows:

·      
the purpose of any award is to provide physical arrangement for
assistance, equipment and facilities directly related to the injuries;

·      
the focus is on the injuries of the innocent party… fairness to
the other party is achieved by ensuring that the items claimed are legitimate
and justifiable;

·      
the test for determining the appropriate award is an objective
one based on medical evidence;

·      
there must be: 1. a medical justification for the items claimed;
and 2. the claim must be reasonable;

·      
the concept of “medical justification” is not the same or as
narrow as “medically necessary”;

·      
admissible evidence from medical professionals (doctors, nurses,
occupational therapists etc) can be taken into account to determine future care
needs;

·      
however it is not necessary for specific items of future care to
be expressly approved by medical experts…… it is sufficient that the whole of
the evidence supports the award for specific items;

·      
still, particularly in non-catastrophic cases, a little common
sense should inform the analysis however much particular items might be
recommended by experts in the field; and

·      
no award is appropriate for expenses that the plaintiff would
have incurred in any event.

See: Andrews v. Grand & Toy Alberta Ltd [1978] 2
S.C.R. 229; Krangle v. Brisco, 2002 SCC 9; Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 (S.C.), affirmed (1987), 49 B.C.L.R. (2d) 99 (C.A.);
Aberdeen v. Langley Township 2008 BCCA 428; Gregory v. ICBC, 2011
BCCA 144; Jacobsen v. Nike Canada Ltd (1996), 19 B.C.L.R.), (3^d)
63 (S.C.); Penner v. ICBC, 2011 BCCA 135; Shapiro v. Dailey, 2012
BCCA 128.

[215]     Dr. Regan
gave evidence that the shoulder surgery he was recommending could be provided
on an expedited basis if privately funded at an estimated cost of between
$4,000 to $5,000. The defendant takes no exception to $4,500 as being an
appropriate award for this procedure. I agree and I award that amount as a
reasonable cost of a medically justified future care procedure.

[216]     The
balance of the plaintiff’s claims for future care items are derived primarily
from the evidence of the registered occupational therapist, Hillary Drummond. While
the courts will have regard for the admissible evidence of an occupational therapist
with respect to these types of matters, I have commented earlier in these
reasons on some of the frailties in Ms. Drummond’s evidence and report
regarding recommended supports. In particular, I do not accept her
recommendations respecting physiotherapy (other than such therapy following Dr.
Regan’s orthroscopic surgery), massage therapy, or chiropractic treatment.

[217]     I
recognize, however, there was testimony from the physicians that, although the
treatment might not be curative, physiotherapy and massage therapy might well
provide temporary relief of pain symptomology and applying a common sense
approach based on the whole of the evidence, some award for the cost of
obtaining such treatment in the future is appropriate. In that regard, an
annual cost of $1,000 is reasonable.

[218]     I also
accept that active participation at a fitness facility with occasional
assistance from a fitness instructor would likely help with the plaintiff’s
overall fitness and ability to cope with, if not ameliorate, some of the ongoing
pain symptomology. Again, adopting a common sense approach to this item, an
annual cost of $650 is reasonable.

[219]     The
defendant agrees with certain items of future care claimed by the plaintiff,
although disagrees with ongoing claims for some:

·      
physiotherapy following arthroscopic surgery – $1,260

·      
tennis elbow brace – $120

·      
snow removal – $200

·      
sit/stand stool – $500

·      
lawn mower upgrade differential – $250

[220]     I am
prepared to make an one time award for each of these items in the amounts
stated above, with the exception of snow removal, which is logically an annual
expense, albeit subject to the shoulder surgery contingency discussed below.

[221]     Another contentious
item relates to the cost of custom footwear. The plaintiff gave evidence that
before the accident he wore customized boots, which he made himself, to address
a pre-existing orthotic condition involving the arch of his foot. His evidence
was that he wore these boots most of the time. Mr. Ostrikoff made the boots
himself (given that he was running a shoe repair business at the time) and the
raw materials apparently cost $300 to $400 for each pair. He testified that
since the accident he has worn out seven pairs of custom boots that he made
before he sold his shoe shop and is currently wearing his last pair.

[222]     Mr.
Ostrikoff’s evidence is that the boots provide support for the pain and
weakness (peroneal tendonitis) and Dr. Regan did testify that these boots would
“best manage” this condition. He also testified that these particular symptoms
“will likely gradually settle over time”. While a future treatment of this
injury is obviously not subject to any shoulder surgery contingency, the
prospect of the condition resolving over time must be factored into any award
for future custom footwear.

[223]     Of course,
the occupational therapist also recommended the use of an ankle stabilization
brace at an annual replacement cost of approximately $50 to $90. There was
obviously some duplication between the recommendations for custom high topped
boots on the one hand and an ankle stabilizer on the other. Only one is
necessary, although the boots also help address the pre existing orthotic
problems.

[224]     The
plaintiff has testified that he will not wear any ankle stabilization brace. He
insists on wearing custom high topped boots and wishes to be reimbursed for the
full future cost of replacing such boots on an annual basis. I assess the
reasonable cost of replacing such boots at $1,000 per annum but I am not
prepared to make an award for this full amount given the plaintiff’s pre-existing
condition and his refusal to consider the alternative and less costly
stabilization brace. I am prepared to make an award of $500 per annum under
this heading.

[225]     Based on
the plaintiff’s life expectancy, the actuarially calculated present value
multiplier applicable to annual future care costs is approximately 18.3. Hence
the present value of a $500 annual future footwear cost for the balance of the
plaintiff’s life is $9,150.00. Factoring into the equation, an allowance that
the ankle condition may indeed settle over time, I am making an award for
future footwear costs in the amount of $4,000.

[226]     The other
annual future care costs referred to above are physiotherapy/massage treatments
($1,000), fitness ($650), and snow removal ($200). Applying the same multiplier
to these amounts generates a present value award of approximately $34,000,
however, these items and any award for same are subject to contingencies
including, of course, the significant  positive shoulder surgery contingency
discussed earlier in these reasons. I recognize there is an element of “rough
justice” in making a final award under this heading but, on the whole of the
evidence including an allowance for the contingencies and common sense, an
award for these items that is fair to both parties would be $20,000.

[227]     The
breakdown of the final award for future care costs is therefore as follows:

1.     Shoulder
surgery – $4,500

2.     Physiotherapy
following surgery – $1,260

3.     Tennis
elbow brace – $120

4.     Sit/stand
stool – $500

5.     Lawn mower
$250

6.     Footwear –
$4,000

7.     Other
ongoing treatments/assistance modalities – $20,000

TOTAL:   $30,630

Summary

[228]     In the
result, damages are awarded to the plaintiff in the following amounts:

1.     Non-pecuniary
general damages – $105,000;

2.     Past loss
of earning capacity – $95,000 (subject to “netting” for income tax but also
court ordered interest);

3.     Loss of
future earning capacity – $325,000;

4.     Cost of
future care – $30,630;

[229]     Costs will
follow the event unless there are any particular circumstances which should be
brought to my attention in that regard, in which event the parties may make
further submissions within 30 days.

“Kent J.”