IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140404

Docket: M094782

Registry:
Vancouver

Between:

Gurdev Parhar

Plaintiff

And

Chad Wayne Dawe
and

Narinder Kumar
Bangar

Defendants

Before:
The Honourable Mr. Justice Greyell

Reasons for Judgment

[1]            
Mr. Parhar claims damages arising from a motor vehicle accident of April
24, 2008.

[2]            
The accident (which I will describe as the “Third Accident” (the
plaintiff had been involved in two previous motor vehicle accidents)) occurred
when he was a passenger in a vehicle which was struck from the rear by the
defendant Mr. Dawe’s vehicle.

[3]            
Mr. Parhar claims non-pecuniary damages, past loss of earning capacity,
impairment of future earning capacity, cost of future care, costs associated
with vocational assessment and rehabilitation treatments, special damages and
costs.

[4]            
Liability is not an issue. The only issue to be addressed in this
judgment is the assessment of the plaintiff’s damages.

[5]            
The defendant says the impact of the injuries on the plaintiff’s
employment and his overall functioning is not as great as submitted by the
plaintiff and in any event were significantly caused by a previous accident in
which the plaintiff was involved.

Background

The Plaintiff’s Background

[6]            
The plaintiff was born in India on March 26, 1964 and at the date of
trial was 49 years old.

[7]            
He is married with three children: a son aged 19 and two daughters aged
16 and 15. He and his family reside in Surrey B.C.

[8]            
Mr. Parhar came to Canada in 1980. He graduated from high school in
Nanaimo in 1983 and, after working for a year, he attended Douglas College in New
Westminster. He then took training to become an airline maintenance engineer
(“AME”) at B.C.I.T. He did not complete the course for financial reasons. He
was on a waiting list to obtain an apprentice AME position at the Vancouver
airport.

The Plaintiff’s Work History Prior to the Third Accident

[9]            
After leaving B.C.I.T. Mr. Parhar moved to Edmonton and then Toronto
looking for a position in aircraft maintenance.

[10]        
Between 1986 and 1992 he worked as an AME in the Toronto area. In 1992
he slipped and fell on spilled oil at work, injured his back and missed six
weeks of work. He returned to work but shortly thereafter his employer lost a
major contract and he was laid off.

[11]        
Mr. Parhar then returned to the Vancouver area to look for AME
positions. There were none available at the time. With a cousin, he commenced a
carpet cleaning franchise business. That business was unsuccessful and closed
in the fall of 1993.

[12]        
Between January 1994 and January 2001 Mr. Parhar worked as a letter carrier
for Canada Post in Surrey. During that time he was involved in a motor vehicle
accident in the summer of 1996 (the “First Accident”) and another more serious
accident on July 31, 1997 (the “Second Accident”). I will discuss the injuries
sustained in these accidents and the impact they had on his work in a later
portion of this decision.

[13]        
Mr. Parhar testified that following the Second Accident he found that work
as a letter carrier aggravated his lower back and the shoulder injuries he
sustained in that accident and accordingly, after consulting with his attending
physician, Dr. Parhar, (not related) decided he needed to change careers.

[14]        
The plaintiff obtained a position as an AME with Cascade Aerospace (“Cascade”)
in Vancouver commencing February 2, 2001. He continued to work for Cascade for the
next seven years (with a short layoff of two months in 2003 during which he
returned to work at Canada Post) until he resigned in August 2008. He was off
work on a disability leave between May 2005 and February 2006 as a result of
issues relating to the health of his father.

[15]        
During the time he worked for Cascade Mr. Parhar was also involved with a
cousin in owning and operating a coffee shop business in Vancouver between
February 2004 and February 2006. He worked at the coffee shop on days he was
not working at Cascade. Mr. Parhar testified his role in the business was as an
investor and that he looked after the books.

[16]        
During his employment with Cascade Mr. Parhar was a union member covered
under the provisions of a collective agreement, held his position based on
seniority, enjoyed a pension plan, RRSP contributions made by his employer and other
employer paid benefits.

[17]        
During his employment with Cascade Mr. Parhar received commendable
performance ratings and promotions, rising to the positions of senior engineer,
acting crew leader and ultimately as a quality control inspector (“QCI”).

[18]        
For a period of time after the Second Accident, Mr. Parhar found the
work he was doing at Cascade to be difficult as a result of pain in his back,
neck and shoulders. He could manage light maintenance work but had difficulty
doing the bending, twisting and lifting involved in heavy maintenance work and
moving about income of the confined spaces on aircraft in which he was required
to work. However, he testified that by the time of the Third Accident he was
90% recovered from these injuries.

[19]        
In or about the summer of 2007 Mr. Parhar applied to Chevron Canada to
operate a gas station. He testified he was of the view he could perform the
management functions required to operate the station during the days of the
week he was not working for Cascade.

[20]        
The Third Accident occurred April 24, 2008. Mr. Parhar was on disability
leave from Cascade from that date to August 26, 2008. He tried to return to
work at that time following a course of rehabilitation but found he was unable
to do so as a result of the pain which he described as back pain which was “very
strong” radiating into his left leg, shoulder pain and headaches. His injuries
interfered with his ability to perform the lifting, bending and crawling into
small spaces required of an AME.

[21]        
At the conclusion of his disability leave Mr. Parhar testified he asked
for a further leave of absence but was refused. He testified he then made the
decision to resign from Cascade and to enter into an agreement with Chevron to
operate a kiosk gas station in Surrey commencing September 3, 2008. His
resignation letter is dated and signed August 8, 2008 and reads:

It is with much regret that I will be resigning from Cascade
aerospace as QC Inspector effective August 22, 2008.

I appreciate the opportunities I
have been provided and wish the organization continued success.

[22]        
The offer from Chevron to operate the kiosk is dated June 16, 2008. In
the agreement, Mr. Parhar agreed he would be available to “assume full-time
responsibilities as Operator at the Station…”.

[23]        
That contract was abruptly terminated by Chevron on February 26, 2010
for reasons which Mr. Parhar said where not explained to him. He was given two
weeks pay in lieu of notice of the termination of his contract.

[24]        
From February to October 2010 the plaintiff was unemployed. He was hired
by Air Canada (and later its subsidiary Aveos) as an AME in October 2010 where
he worked until May 19, 2012 when Aveos closed its operations in Canada and he
was laid off.

[25]        
Mr. Parhar was not able to find other work as an AME until he commenced
taking a series of intermittent short term contracts as a “line maintenance”
AME which has continued to the date of trial. He has worked in such a capacity
in Yellowknife (July 2012 for six weeks); Kelowna (October 2012 for one month;
Saskatoon (November 2012 for six months) and Vancouver (May 2013 for six
months).

[26]        
He testified he has recently been offered further contract work and it
was his intention to accept it and bear through the pain. He felt he had little
other option financially but to do so.

[27]        
I turn now to discuss the first two accidents in which Mr. Parhar was
involved.

The First Accident

[28]        
This accident occurred in the summer of 1996 when the plaintiff’s
vehicle was struck on the left side. He testified he had mild back pain
following the accident, that he took several days off work, had massage therapy
and returned to work. I find Mr. Parhar recovered from any injuries from this
accident within a short period of time.

The Second Accident

[29]        
On July 31, 1997 the plaintiff’s vehicle was stopped at a stop sign when
it was struck by another vehicle. This accident was more significant than the
first. Mr. Parhar sustained injuries to his lower back, right shoulder, neck,
and had headaches. He was off work from his position as a letter carrier with
Canada Post for more than a year as a result of his injuries and returned to
work under a graduated return to work program whereby he commenced working several
hours a day working up to full time work over a six to eight week period. He
was working again as a full-time letter carrier by early 1999.

[30]        
During the course of his treatment and recovery Mr. Parhar received a
number of different modes of treatment including physiotherapy, massage therapy,
acupuncture, homeopathy, had attended gym and yoga sessions. On two trips he
took to India with his family in December 2004 and December 2007 he sought
“eastern” medical treatment for the relief of ongoing pain in his back and
shoulders.

[31]        
The plaintiff’s treating family physician was Dr. Gurdeep Parhar (no
relation) who had followed Mr. Parhar’s course of treatment on a regular basis
since August 2007.

[32]        
Mr. Parhar commenced an action for damages arising from the injuries he
sustained in the Second Accident. That action was ultimately settled in
September, 2004. While Mr. Parhar continued to see Dr. Parhar on a regular
basis after the Second Accident for various medical issues he did not complain to
him of any further problem with his neck, back or shoulders after settlement of
the action.

[33]        
The plaintiff says he engaged in intensive therapy treatments to try to
improve his physical limitations and pain after settling his claim for damages
including physiotherapy and what he described as healing touch treatments.

[34]        
Mr. Parhar testified he was 90% recovered from the injuries sustained in
the Second Accident when the Third Accident occurred on April 24, 2008. He
testified he stopped complaining to Dr. Parhar because there was no “legal
purpose” that required him to document his condition.

[35]        
One of the main issues raised by the defendants is that Mr. Parhar was
not as recovered as he says he was from the injuries sustained in the Second Accident
and that the proximate cause of many of his ongoing problems arises not from
the Third Accident but from the Second Accident and that those injuries would
have continued to affect him notwithstanding the Third Accident.

The Third Accident

[36]        
The Third Accident occurred when the plaintiff was being driven home
from work by a co-worker. The vehicle in which the plaintiff was a passenger
had stopped at a red light when it was rear ended by a vehicle driven by the
defendant, Mr. Dawes. The plaintiff was in a Hyundai SUV; the vehicle Mr. Dawes
was driving was a Dodge pickup truck. The Hyundai was pushed several feet into
the intersection. The damage sustained to both vehicles was substantial. The
impact was sudden and unexpected.

[37]        
The plaintiff first sought medical attention at a local medical clinic. He
saw Dr. Parhar on May 1, 2008 and on a regular basis thereafter complaining of
similar complaints to those he had arising from the Second Accident: that is
neck pain, shoulder pain, lower back pain and headaches.

[38]        
Those problems have been persistent and ongoing since the date of the Third
Accident.

Medical Evidence

1.    
Dr. Gurdeep Parhar

[39]        
Dr. Parhar had been the plaintiff’s family physician since the Second Accident
in 1997. He saw Mr. Parhar on a regular basis following both the Second Accident
and Third Accident. He performed an occupational examination on June 7, 2013 at
the request of the plaintiff’s counsel. It should be noted that in addition to
being qualified to give expert opinion evidence in the practice of family
medicine Dr. Parhar also has considerable expertise in occupational and
disability medicine. He was qualified to give expert opinion evidence in those
areas. He prepared a medical legal report dated August 21, 2013 and was cross-examined
at trial.

[40]        
In his medical legal report of August 21, 2013 Dr. Parhar described the
plaintiff’s injuries arising from the 1997 accident as musculoligamentous
injuries to his cervical and lumbar spine and an annular tear at L5-S1 with
muscles tension headaches, a labyrinthine contusion and some anxiety/depression
with disturbed sleep. He noted Mr. Parhar had “improved ninety percent” and had
been functioning “fairly well prior to the Third Accident. He noted:

…Specifically, he had not been
receiving any ongoing treatment for any of these conditions. In fact, during
visits in 2006 and 2007, Dave had not presented for any complaints of neck pain
or back pain, and during his visits with me in 2005, 2006, and 2007, Dave had
not presented with any complaints of neck pain, back pain, or headaches. This
leads me to conclude that for approximately three years prior to the motor
vehicle collision of April 24, 2008, Dave had been well.

[41]        
Dr. Parhar made the following diagnoses of conditions resulting from the
Third Accident: lumbar spine disc herniation at the L4 – L5 level; right
shoulder traumatic tendinitis/tendinopathy; right shoulder osteoarthritis of
the AC joint which pre-existed the Third Accident but which was aggravated by
the accident and made the condition symptomatic; aggravation of osteoarthritis
of the lumbar spine; musculoligamentous injuries of the cervical spine and
lumbar spine; headaches caused by muscle tension; disrupted sleep; depressed
mood and anxiety.

[42]        
Dr. Parhar opined the plaintiff’s prognosis was “rather poor”. He drew
this conclusion because of the “multiple modalities of treatment that have been
attempted unsuccessfully over the five years since the accident”. It was his
view the plaintiff’s ongoing injuries to his cervical and lumbar spine had
plateaued. He noted that “while a further treatment in the form of medications,
physiotherapy, massage therapy and acupuncture may offer some temporary symptom
control, they are unlikely to resolve these conditions”. He said “these
conditions will continue for the foreseeable future and are likely permanent”.
He noted the L4 –5 disc protrusion was a new injury and that he had referred the
plaintiff to a spinal surgeon to consider options such as injections and/or
spinal surgery

[43]        
As to the plaintiff’s ability to continue to work as an AME Dr. Parhar
opined:

Thus, for the foreseeable future,
I would expect Dave to have difficulty with prolonged sitting, prolonged
standing, bending, reaching, carrying, stooping, and squatting. At the current
juncture, I would deem Dave to permanently partially disabled from returning to
work as an aviation mechanic/technician.

[44]        
Dr. Parhar made a number of recommendations including participating in a
personal fitness program with initial involvement of a kinesiologist or
personal trainer to assist with a proper program, access to get him started, access
to gym equipment, assistance with household duties and yard work involving
repetitive reaching sustained bending and lifting. He opined such assistance
would involve home care of four to six hours per week and seasonal assistance
of eight to ten hours four times per year.

[45]        
Dr. Parhar also recommended Mr. Parhar be assessed in a two -two hour
sessions by a vocational rehabilitation consultant as he did not think he would
be able to continue working as an AME “for the foreseeable future”: that he was
struggling to perform the job and was being accommodated by his employer. He
also recommended an assessment by an occupational therapist to get
recommendations about ergonomic changes and occupational assistive devices that
would help the plaintiff function better both at work and at home.

[46]        
In cross-examination Dr. Parhar agreed that, notwithstanding regular
office visits between September, 2004 (the date the plaintiff’s claim for
damages arising from the Second Accident had been settled) and the date the
plaintiff attended his office following the Third Accident the plaintiff had
not complained of any symptoms about his lower back, neck, left shoulder, and
headaches or difficulties he was having at work as a result of injuries
sustained in the Second Accident. Dr. Parhar had no knowledge of the plaintiff
taking “healing touch” therapy or other treatment for his back after September
2004.

[47]         
Dr. Parhar agreed he had authorized two medical reports
concerning the impact of the injuries suffered by the plaintiff in the Second Accident:
the first written February 25, 2003 and the second January 13, 2004. In the
former report he had opined:

Given that over 5 years have
elapsed since the MVA of July 31, 1997, Dave is still having ongoing problems
with back pain, neck pain, and headaches. One is led to conclude that he will
likely have problems with back pain, neck pain and headaches sometime into the
future.

[48]        
In his January 13, 2004 report Dr. Parhar noted the back pain was
aggravated by bending and twisting. As defendant’s counsel pointed out, Mr.
Parhar was working as an AME at the time of the assessments leading to the two
reports.

[49]        
Dr. Parhar also agreed in cross-examination he had seen the plaintiff
frequently for complaints arising from the second motor vehicle accident and
that that the last complaint was during an office visit of September 2, 2004.

[50]        
Dr. Parhar agreed he was not aware the plaintiff was undertaking any treatment
for the injuries sustained in the Second Accident between 2005 and the date of
the Third Accident.

2.    
Dr. Russell O’Connor

[51]        
Dr. O’Connor is a specialist in physical and rehabilitative medicine. He
saw the plaintiff for an independent medical assessment on May 13, 2013 and
prepared reports of that date and September 9, 2013 following the receipt of
further information. In his report of May 13, 2013, Dr. O’Connor opined the Third
Accident had aggravated Mr. Parhar’s right shoulder problems with right
shoulder tendinopathy, describing the AC joint as “quite worn” and right
shoulder joint arthropathy; aggravation of a pre-existing low back problem with
residual irritation and scaring around the L-5 nerve root resulting in
intermittent left leg symptoms.

[52]        
Dr. O’Conner recommended Mr. Parhar become involved with a more “active”
assessed treatment (rather than the passive treatment he had been taking) and
that he work with a personal trainer. He also suggested should such treatment
not give relief that he try an injection or facet block at L4-5.

[53]        
Dr. O’Conner opined that Mr. Parhar was capable of working as an IME as
he had been actively working in that capacity “albeit with some shoulder and
back discomfort”. He wrote that “with further active rehab it is more likely
than not he will be able to improve his physical conditioning,” but that given
the length of time his problems had persisted it was “exceedingly unlikely his
symptoms are going to completely resolve at this point”. He concluded:

It is my opinion he is capable of
doing his job in modified ways. His tolerance for heaving bending, twisting or
lifting and his risk for reinjury with regard to his right shoulder and left
low back are higher as a result of the MVA. The motor vehicle accident had
aggravated these preexisitng symptoms and to what extent these symptoms had
actually settled or whether they continued to grumble along is not clear to me
by history or review of his information.

[54]        
In his updated report of September 9, 2013 in which Dr. O’Conner had
reviewed further medical records of Dr. Parhar he concluded the injuries Mr.
Parhar suffered in the Second Accident had “largely settled” at the time of the
Third Accident and that he was managing at work but he would “have been at
increased risk of problems with his neck, shoulder, and back as a result of
these pre-existing problems and prior injuries that had improved and settled to
the point where he was able to cope at work”.

3.    
Dr. Douglas Hamm

[55]        
Dr. Hamm is a specialist in occupational medicine. He was retained by
the plaintiff’s counsel to examine the plaintiff and provided opinion
concerning the plaintiff’s employability as an AME.

[56]        
Dr. Hamm examined Mr. Parhar on February 3, 2013 and reviewed his
medical history (with the exception of Ms. Craig’s Functional Capacity Evaluation)
and prepared an opinion dated March 2, 2011.

[57]        
At the time Mr. Parhar saw Dr. Hamm he was primarily complaining of right
shoulder and lower left back pain. Dr. Hamm diagnosed Mr. Parhar as having
sustained an exacerbation of his right shoulder tendinopathy and an
exacerbation of mechanical lower back pain.

[58]        
It was Dr. Hamm’s opinion that Mr. Parhar was “likely” to suffer
long-term symptoms and related restrictions which “would adversely affect his
employment opportunities and recreational activities involving repetitive or
forceful reaching with his right arm and repetitive or forceful lifting and
bending.” He was of the opinion Mr. Parhar was unable to undertake heavy
physical demands at work on a sustained basis. He thought Mr. Parhar was
working at the physiological limits of his tolerance for his work as an AME and
that if he continued to perform such work he “will continue to have
exacerbations of his right shoulder and lower back pains”. He noted, “I expect
that he will not be able to pursue this (AME) career for the rest of his
working life: that if his pain continued Mr. Parhar would need to find work of
a less pain provoking nature”.

[59]        
Dr. Hamm opined he did not think Mr. Parhar required assistance with
activities of daily living, or with respect to regular housework or yard work
but had required assistance with heavier or seasonal household and yard work
from the accident to date of trial and would require such assistance into the
future.

[60]        
Dr. Hamm recommended Mr. Parhar undertake a program of active
rehabilitation under the guidance of a personal trainer or other professional.

Other Expert Evidence

1.    
Mr. Richard Carlin

[61]        
Mr. Carlin is a specialist in vocational rehabilitation. He was retained
by the plaintiff’s counsel to interview and conduct testing of the plaintiff
and to prepare a report setting out his opinion of the plaintiff’s work
capabilities.

[62]        
Mr. Carlin interviewed and did vocational testing of the plaintiff on May
8, 2013. An associate did a follow-up interview on August 2, 2013. His report
is dated August 26, 2013.

[63]        
Mr. Carlin wrote:

…Mr. Parhar was 95% recovered when the April 2008 accident
occurred. At that time Mr. Parhar was reportedly working full-time hours and
managing well in his work as an Aircraft Maintenance Quality Control Inspector
and would have been expected to continue to do so in the future.

In the absence of the accident in question, Mr. Parhar would
likely have continued to work as an Aircraft Maintenance Quality Control
Inspector with Cascade Aerospace for the foreseeable future.

Unfortunately, Mr. Parhar
experienced a significant exacerbation of low back and right shoulder pain as a
result of the subject accident. Following the accident, he quit his job with
Cascade Aerospace due to concerns about the physicality of his work and because
they were reportedly unwilling to give him the time off he required for
recovery.

[64]        
He said he made the above assumptions based on what he read in the
medical reports and what Mr. Parhar told him.

[65]        
Mr. Carlin concluded from his testing of Mr. Parhar that “the occupation
of (AME) is a poor long-term solution for Mr. Parhar’s remaining years in the
labour market” because of the continued exacerbation of his shoulder and neck
pain levels: that under the current situation, with Mr. Parhar continuing to
“soldier on” he would likely reach a point where “the combination of pain,
aging and willpower” will cause him to cease such employment.

[66]        
Mr. Carlin found there was a “low” labour market availability for
lighter work in the industry (for example as a Quality Control Inspector) and
that the range of employment options open to him significantly reduced with
likely jobs available being in the $12 to $16 range, many of which were part
time. He said:

In my opinion vocational training would represent a viable
option for Mr. Parhar if he was unemployed and unable to continue working in
his pre-accident occupation. However, such training would likely require
between 6-12 months to be completed and would be very unlikely to result in
work with wages appreciably greater than $16 per hour. As such, I am left with
the opinion that for a gentleman in Mr. Parhar’s position, retraining is not a
particularly realistic option to help him out of his current dilemma.

In the final analysis, I am of
the opinion that Mr. Parhar has sustained a significant loss in his capacity to
work in a competitive labour market. As a result of the subject accident, at 44
years of age he was forced to sacrifice a well-paying, full-time, unionized job
as his employer was reportedly unwilling to provide him with sufficient time
off work to aid recovery. In consequence, he has been unsuccessful in finding
long-standing full time work and has been left with part-time heavy maintenance
contract jobs with no benefits and no guarantee of continued employment. More
critically, Mr. Parhar continues to experience pain and physical limitation
that make his daily work regime difficult to sustain.

[67]        
In cross-examination Mr. Carlin testified that the plaintiff told him he
had a good job and wanted to continue to do AME work. He said the plaintiff
told him his intent had been to manage the Chevron kiosk and at the same time
to work as a full-time FTE with Cascade.

[68]        
Mr. Carlin also disagreed AME’s generally were retiring earlier. He
testified in his experience, such workers often worked up to retirement if not into
their 70s.

2.    
Ms. Louise Craig

[69]        
Ms. Craig is a physiotherapist and functional capacity evaluator. At the
request of plaintiff’s counsel she conducted a functional capacity assessment
of Mr. Parhar on January 19, 2011 and produced a report of her findings and
opinion and recommendations dated January 21, 2011 and was cross-examined at
trial.

[70]        
Ms. Craig noted in her report that Mr. Parhar used “good and consistent
physical effort” during the course of the testing.

[71]        
She opined the plaintiff did not meet the physical demands of his job as
an AME. She was of the view the tasks he was required to perform as an AME significantly
affected his lower back and right shoulder and that he had to adapt his work
pace to compensate for these limitations and to manage his pain. She concluded
the plaintiff’s ability for sustained reaching was limited by pain and that he
did not tolerate stooping, lifting or carrying well. She concluded that Mr.
Parhar’s “competitive employment is certainly decreased. His ability to work at
his current occupation and any occupation in the medium to heavy physical
demands is decreased, limiting his job options…”.

[72]        
Ms. Craig recommended a 12 week individualized rehabilitation program
guided by a physiotherapist with sessions being one hour in duration two -three
days per week as well as home help for chores involving repetitive lifting,
reaching, sustained bending or twisting (vacuuming, groceries, cleaning,
mopping) to assist in recovery time and home help for regular and seasonal
gardening and house maintenance.

[73]        
She noted that she did not think Mr. Parhar had reached maximum physical
rehabilitation at the time of her assessment.

3.    
Mr. Marco Aquila

[74]        
Mr. Aquila is a kinesiologist who assessed the plaintiff’s fitness to
work at the request of plaintiff’s counsel. Mr. Aquila interviewed and
conducted a functional capacity evaluation on June 7 and 11, 2013 on Mr. Parhar
and prepared a Functional Capacity Evaluation dated August 21, 2013. Mr. Aquila
was cross-examined at trial.

[75]        
Mr. Aquila opined from the testing that performed that Mr. Parhar had
limited ability to statically stand, that he reported right shoulder pain and
lower back pain on peg turning test and difficulty stooping. He demonstrated
limited ability to walk during a five minute walk test and difficulty sitting
for any length of time. He demonstrated limitations lifting, carrying, pushing,
climbing, with balance, stooping, crouching, crawling, prolonged neck
positioning and repetitive reaching forward and above his shoulders. Based on
the above Mr. Aquila opined Mr. Parhar “is currently unable to dependably
perform the job duties of an (AME or inspector) without limitation”).

Lay Witnesses for Plaintiff

1.    
Mr. Dexter Cabagnot

[76]        
Mr. Cabagnot is an aircraft maintenance engineer, who worked with the
plaintiff at Cascade between 2006 and 2007 (he thought until December, 2007).
He described the work as being heavy maintenance work which included the
removal of flight controls, rigging, engine panels the inspection and removal
of rudder systems and hydraulic systems and the requirement to work in confined
spaces including crawling into the aircraft’s tail section to carry out
repairs. Some jobs involved one person; others involved several, particularly
where heavy lifting of parts and panels was required.

[77]        
Mr. Cabagnot worked closely with the plaintiff when the latter was
employed as a QCI. He had carpooled with the plaintiff for about a month when
the two took a course together to obtain an aircraft endorsement.

[78]        
Mr. Cabagnot testified he worked on the same crew as the plaintiff
(three times a week on an eight hour shift) and observed him to be in “good
physical condition: he was happy all the time – generally”. He testified Mr. Parhar
had no problem performing the tasks of an AME; that he did not hear the
plaintiff complain about any physical limitations or pain or ask for assistance
performing work.

[79]        
Mr. Cabagnot commenced an orientation for employment with Air Canada at
the same time as the plaintiff in October 2010. He testified he noticed at that
time the plaintiff was complaining of back, shoulder and neck pain.

[80]        
He said he worked with Mr. Parhar on Fridays and Saturdays. He testified
Mr. Parhar “always” complained of back pain; that he had regularly asked other
employees for assistance in lifting components (panels, to this, flaps, slats)
and that he asked for help even if the task was a one person task. He testified
he regularly saw Mr. Parhar stretching in the locker room.

[81]        
Mr. Cabagnot was laid off from Air Canada in March 2012. He obtained a
new job several weeks later as a service technician with a heavy equipment
rental firm. He testified there was “no work” for AMEs in Vancouver. He knew
there was contract work available (such as that currently being done by the
plaintiff) but did not want to be away from his family.

[82]        
In cross-examination Mr. Cabagnot testified there were a number of AMEs employed
at Cascade who were 64 years of age.

2.    
Mr. Roland Hobbs

[83]        
Mr. Hobbs is an AME crew chief, who had worked with the plaintiff during
periods in 2007 and up to April, 2008. The plaintiff had worked directly under
him as a QCI, who was the senior mechanic on the crew. Mr. Hobbs described Mr. Parhar
as “a very capable mechanic. I (could give him) any job… and not worry about it
getting done… He could handle any job physically and see it to completion”. Mr.
Hobbs could not recall the plaintiff ever asking for assistance to perform a
one-person job

3.    
Mandip Parhar

[84]        
Mandip Parhar, the plaintiff’s 19 year old son testified about his
relationship with his father and the activities the latter engaged in around
the home. Mandip’s evidence was that before the Third Accident he and his father
played soccer, volleyball, basketball and engaged in general horseplay and
wrestling. He said he never heard his father complain about any physical
problems. He recalls his father helping around the home, doing housework,
cleaning the gutters and mowing the lawn. He did recall he took medication but
did not know what for. He recalled his parents having an active social life
before the Third Accident.

[85]        
Mandip testified that subsequent to the Third Accident he noticed what
he described as a “really significant change” in his father. He no longer
engaged in the sporting activities; that he appeared “stationary”, that is,
that he could not bend, no longer danced and could not sit at the temple they
attended; that he had difficulty vacuuming, mowing the lawn, grocery shopping
and lifting groceries. In cross-examination Mandip thought his father’s
physical condition was “fine in the winter of 2005 – 2006 when the family
traveled to India.

4.    
Mrs. Sukhvir Parhar

[86]        
Mrs. Parhar is the plaintiff’s wife. She and the plaintiff were married
in 1996. They have three children aged 19 (Mandip), 16 and 15.

[87]        
Mrs. Parhar testified her husband’s health had been very good but that
he had had “a lot of back problems” after the second motor vehicle accident
which continued for a number of years but was better before the Third Accident.
She testified that in the two to three years before the Third Accident the
plaintiff was very involved in household activities such as cleaning, shopping
and cooking.

[88]        
She testified that prior to the Third Accident the plaintiff did all the
upkeep work on the house including cleaning the windows, gutters, painting etc.
She testified that prior to the accident she and her husband shared most
household chores but the plaintiff now could only do about 15 to 20% of such
chores because of the pain in his shoulder and back.

[89]        
Mrs. Parhar described her husband’s current condition as being in a lot
of pain, being unable to sleep at night. She testified his injuries impacted on
the quality of their sex life which had become infrequent because of the
discomfort caused to the plaintiff and their social life. She testified that before
the Third Accident the plaintiff was able to laugh, they went out socially and
the plaintiff was active in sports but that after the accident he becomes
easily agitated, does not go out socially with friends or family or play sports
because of the pain in his back and shoulders. She said he could only sit in
the temple for about 15 minutes.

[90]        
In cross-examination Mrs. Parhar agreed her husband was in considerable
pain until at least 2004 or 2005 arising from the second motor vehicle accident
but said he got better in 2006 or 2007. She testified that after the plaintiff
settled his claim for damages in 2004 arising from the second motor vehicle
accident that and he continued, between 2005 and 2008, to take acupuncture
treatments, massage therapy, physiotherapy yoga and to attend the gym. She said
she could not remember when it was after the settlement he actually improved.

5.    
Mr. Michael Laverty

[91]        
Mr. Laverty is the Employee Relations Manager with Cascade Aerospace. He
started in the position in September 2012 and had no personal knowledge of Mr.
Parhar but attended court with Mr. Parhar’s personnel file.

[92]        
The file confirmed Mr. Parhar commenced employment with Cascade in
February 2001, that he resigned in August 2008, that he had been appointed a
senior engineer in or about May 2007 and a QCI in November 2007. As a senior
engineer Mr. Parhar was earning $64,625 per annum.

[93]        
Mr. Laverty testified that under the current collective agreements
between cascade and its union a QCI earned $75,401 per annum with benefits.
Those benefits (some of which are employer paid: others are shared or employee
paid) include medical, dental, life insurance, health and disability benefits
and a defined contribution pension plan.

[94]        
Mr. Laverty testified that based on Cascades employee seniority list,
had the plaintiff not resigned in August 2008, he would still be working for
Cascade.

[95]        
In cross-examination Mr. Laverty confirmed Cascade had “always done its
best” to accommodate employees with disabilities. He described the company as
being “way in front of the curve”: that some 60 of its 360 employees are being
accommodated for various disabilities in one way or another. He said the
company had never reached the stage of having to terminate an employee for
“undue hardship” as it had always been able to find duties, including part-time
duties, for a disabled employee to perform.

Defendant’s Lay Witnesses

1.    
Owen Sheedy

[96]        
Mr. Sheedy is employed by Sun Wing Airlines and oversees maintenance on Sunwing’s
aircraft in Western Canada. The maintenance is performed through a third party
contractor but Mr. Sheedy hires the AMEs to do the maintenance work.

[97]        
Mr. Sheedy engaged the plaintiff to perform contract work on Sun Wing
planes as they arrived and left the Vancouver International Airport on various
charter flights. The plaintiff commenced working in May 2013 and was to
continue to work into the winter of that year but left in September. He told
Mr. Sheedy he was not getting enough hours and he intended to seek employment
elsewhere.

[98]        
Mr. Sheedy testified he was approached by the owner of another
maintenance company for a reference for the plaintiff and readily gave it. Mr.
Sheedy said he had no performance issues with the plaintiff’s work.

2.    
Christine Bradley

[99]        
Ms. Bradley works for Chevron BC as a business consultant. She was
responsible for the kiosk which Mr. Parhar operated.

[100]     Ms. Bradley
had no recollection of dealing with Mr. Parhar either when the agreement to
operate the kiosk was signed or when it was terminated, although she agreed she
was Chevron’s representative and present when it was terminated.

The Defendant’s Failure to Call Dr. Lapp

[101]     The
plaintiff says the court should draw an adverse inference against the
defendants for failing to call Dr. Lapp, a physician who conducted an
independent medical examination at the request of the defendant.

[102]     I decline
to do so as the onus remains on the plaintiff to prove all elements off its
case throughout. There is no onus on the defendant to call any evidence unless
it raises a defence to the action. The defendant is free to rely on
inconsistencies raised in the evidence called at trial by the plaintiff: Love
v. Lowden, 2007 BCSC 1007 at paras. 35, 58.

The Condition of the Plaintiff at the Time of the Third Accident

[103]     The
defendant says it should only be responsible for those injuries attributable to
the Third Accident. This latter proposition is trite law but important in its
application in this case. The plaintiff settled his claim for damages against
those at fault for the Second Accident. He is not entitled to double recovery.
He is only entitled to recover damages for injuries caused by the defendant in
this case.

[104]     The
defendants submit the plaintiff was still suffering significantly from the injuries
he sustained to his neck, right shoulder and lower back in the Second Accident
and was receiving treatment for those injuries until just before the Third Accident
occurred. The plaintiff testified while he still had some neck and back pain,
he was 90% recovered at the time of the third accident. He says that after the Second
Accident was settled he engaged in intensive therapy including yoga,
physiotherapy, healing touch therapy and relied on “eastern medical treatments”
on his two trips to India. He testified he was able to function well at work
prior to the Third Accident.

[105]      While the
court must examine  the plaintiff’s declaration from the perspective of whether
it is simply a self-serving attempt to bolster his claim for damages, the
evidence which I have set out earlier satisfies me Mr. Parhar was, as he
testified, 90% recovered from the effects of the Second Accident. His evidence
is supported not only by his wife and son, but more importantly, by two
co-workers who had no vested interest in the outcome of this case. Both Mr.
Cabagnot and Mr. Hobbs testified that in 2007 and 2008 that Mr. Parhar had no
limitations of his working abilities and was a fully capable of fulfilling the
functions of the positions of AME and QCI when each worked with him between
2006 and April, 2008.

[106]     I turn to
the issue of damages.

Non-Pecuniary Damages

[107]    
The principle factors a court must take into account in determining
non-pecuniary damages were set out in Stapley v. Hejslet, 2006 BCCA 34
at para. 46. Those factors include the age of the plaintiff, the nature of the
injury, the severity and duration of the pain, disability, emotional suffering,
loss or impairment of life, the impairment of family, marital and social
relationships, the impairment of physical and mental abilities, loss of
lifestyle, and the plaintiff’s stoicism.

[108]    
In my view it is clear the plaintiff has ongoing problems with neck,
left shoulder, lower back and leg pain which has persisted from the date of the
Third Accident to the date of trial and that these problems are aggravated by
the nature of the work he is required to perform as an AME.

[109]    
I accept when the Third Accident occurred in April, 2008 he was 90%
improved from the injuries sustained in the Second Accident and that he was
able to perform well at work, that he enjoyed a normal relationship with his
wife and family and that he contributed to various household tasks on at least
an equal basis with his wife. I find he also enjoyed an active social life
before the Third Accident and that he no longer does. These facts are well
supported by the evidence of his co-workers and his family.

[110]    
The medical evidence is that Mr. Parhar will likely continue to suffer
pain and be restricted in his physical abilities into the future although he
has been referred to a neurologist for an opinion whether injections or surgery
would relieve some of his pain. His care providers are unanimous in
recommending a program of continued exercise under the supervision of a
professional kinesiologist, physiotherapist or personal trainer. Ms. Craig
opined Mr. Parhar had not yet “reached maximum physical rehabilitation”. The
fact Mr. Parhar has faced his injuries with stoicism and soldiered on finding
AME contract work as and where he can is a testament to his dedication to his
family responsibilities but it is also a double edged sword as the work likely
aggravates his injuries and the pain he suffers.

[111]    
I note Mr. Parhar improved from similar injuries after the Second Accident
when he focused on recovery by taking a concentrated series of treatments. His
efforts at that time proved reasonably successful.

[112]    
Counsel for the plaintiff relied on Alden v. Spooner, 2002 BCCA
592; Bains v. Brar, 2013 BCSC 1828; Bouchard v. Brown Bros. Motor
Lease Canada Ltd., 2011 BCSC 762; Bouchard v. Brown Bros. Motor Lease
Canada Ltd., 2012 BCCA 331; Fox v. Danis, 2005 BCSC 102; Fox v.
Danis, 2006 BCCA 324, Knight v. Belton, 2010 BCSC 1305, Mazzuca
v. Alexakis, [1994] B.C.J. No. 2128; Mazzuca v. Alexakis, [1997]
B.C.J. No. 2178; Midgley v. Nguyen, 2013 BCSC 693; Nelson v. Coyle,
2013 BCSC 896; Peso v. Hollaway, 2012 BCSC 1763; and Prince-Wright v.
Copeman, 2005 BCSC 1306.

[113]    
Plaintiff’s counsel suggests non-pecuniary damages should be assessed in
the amount of $110,000.

[114]    
Counsel for the defendant relied on Power v. Carswell, 2011 BCSC
1672; Bearpark v. Lakhanpal, 2013 BCSC 2082 and suggested damages should
be assessed in the vicinity of $70,000.

[115]    
While the cases provided by counsel; are, of course a useful guide to
the range of damages, it must be remembered that while the same principles for
assessing damages apply, the facts of each case are different and require an
individual assessment.

[116]    
Based on the principles set out above and after a review of the cases
cited by counsel, I am of the view non-pecuniary damages should be assessed at
$90,000.

Loss of Past Income

Chevron

[117]     The
plaintiff testified he had intended to operate the kiosk for Chevron during his
days off from Cascade. The defendant says that as a result of the lingering
effects of the Second Accident the plaintiff planned to explore a new business
venture when he initially applied to operate a Chevron gas station in 2007. The
defendant says the plaintiff resigned from Cascade voluntarily and the
resignation had nothing to do with the injuries in either the second or Third Accident.

[118]     The plaintiff
applied to Chevron to operate a gas station in 2007. He knew several people who
had operated such stations and said he thought it might be a good fit with his
work – which at the time was mostly on weekends. The initial offer he received
from Chevron in August, 2007 was to operate a full service station. He turned
this offer down as he would have had to devote full time attention to such an
endeavour which, of course, he couldn’t do because of his employment with
Cascade.

[119]     Mr. Parhar
accepted Chevron’s offer of June 16, 2008 to operate the Chevron Kiosk station
on 6th St. in New Westminster. The contract was to start September 3, 2008. Mr.
Parhar resigned from Chevron on August 8, 2008.

[120]     I find Mr.
Parhar made a voluntary choice when he decided to resign and accept the Chevron
position.

[121]     Mr. Parhar
was off work on a disability leave from April 24, 2008 to August 26, 2008. He
had tried to return to work at the end of July and said he could not because of
left leg, neck, shoulder, and back pain. Mr. Parhar testified he stopped his
disability benefits because he did not think it was “the right thing” to
collect benefits and go to work at Chevron at the same time. He testified he
asked Cascade for a leave of absence and was advised by the Human Resources Department
that he could not have a leave if he was going to work somewhere else. Mr.
Parhar testified it was “all my decision” to resign: that if he couldn’t get a
leave of absence from Cascade, he could work at the kiosk doing the books and
management work more easily with his injuries.

[122]     He
testified his wife disagreed with his decision to resign and give up a steady
job, and his benefits and seniority rights.

[123]     I find Mr.
Parhar’s decision to resign puzzling. The evidence is clear he was covered
under a collective agreement which contained disability benefits, seniority
provisions and, of course his employer had an obligation to accommodate him in
the event of a disability affecting his ability to perform his work. Mr. Parhar
clearly would have qualified for such benefits (there was no evidence his would
not have qualified) yet chose not to pursue such benefits but rather chose to
resign to accept the contract with Chevron.

[124]     I find the
consequences of the plaintiff’s decision to resign from Cascade cannot be
visited on the defendants. The plaintiff did not resign because of the effect
of his injuries. He had the choice of remaining at Cascade on leave until he
had recovered sufficiently to return to work or was accommodated under Cascades
benefit plans which were described by Mr. Laverty. The effective cause of Mr.
Parhar resigning was his decision to take the position with Chevron.

[125]     Mr.
Parhar’s position under contract with Chevron lasted until February, 2010 when
the contract was terminated.

[126]     Mr. Parhar
then searched for work for some ten months, including applications to Cascade,
until he found employment as an AME with Aveos, the maintenance division of Air
Canada. His employment with Aveos continued until March 2012 when that company
ceased its operations in Canada.

[127]     Mr. Parhar
is entitled to the net income he lost from the time of the Third Accident to
the date of his resignation from Cascade. The defendant has calculated this
amount to be $21,175.60 I will leave this amount to counsel to determine. If
they are unable to do so they will have liberty to apply.

Loss of Income Earning Capacity

[128]    
In Perren v. Lalari, 2010 BCCA 140 at para. 32 the court:

[32] A plaintiff must always
prove, as was noted by Donald J.A. in Steward [Steward v. Berezan,
2007 BCCA 150], by Bauman J. in Chang [Chang v. Feng, 2008 BCSC
49], and by Tysoe J.A. in Romanchych [Romanchych v.
Vallianatos, 2010 BCCA 20], that there is a
real and substantial possibility of a future event leading to an income loss.
If the plaintiff discharges that burden of proof, then depending upon the facts
of the case, the plaintiff may prove the quantification of that loss of earning
capacity, either on an earnings approach, as in Steenblok [Steenblok
v. Funk (1990), 46 B.C.L.R. (2d) 133 (C.A.)], or a capital asset approach,
as in Brown [Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353]. The
former approach will be more useful when the loss is more easily measurable, as
it was in Steenblok. The latter approach will be more useful when the
loss is not as easily measurable, as in Pallos [Pallos v. Insurance
Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260] and Romanchych.
[Underline emphasis in Perren.]

[129]     In Rosvold
v. Dunlop, 2001 BCCA I, 84 B.C.L.R. (3d) 158 at paras. 8-9,  Huddart J.A stated:

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

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

[130]     The
defendant submits the plaintiff’s injuries are an exacerbation of pre-existing injuries
sustained in the Second Accident but acknowledges such exacerbation has
resulted in a claim for loss of future earning capacity. The defendant argues
the award should be based on the difference between his loss of capacity prior
to the Third Accident and his loss of capacity following the Third Accident. The
defendant submits an award of $130,000 is appropriate.

[131]     I agree
with the defendant’s position I must consider the ongoing effect of the
plaintiff’s injuries from the Second Accident and differentiate them from those
sustained in the Third Accident. I must also consider the extent to which
injuries sustained in the Second Accident were aggravated in the Third Accident
and the extent such aggravated injuries may impact the award under this head of
damage.

[132]     As stated,
I have found the plaintiff was not suffering from the effect of the injuries
sustained in the Second Accident to the extent submitted by the defendant.

[133]     The
plaintiff submits that regardless of whether the court takes an income or a
capital asset approach to the assessment of damages, the plaintiff’s loss is
between $391,000 and $605,000 depending on the court’s assessment of his annual
income level and the figures provided to the court by Mr. Benning and Mr.
Laverty for a current QCI pay scale at Cascade.

[134]     There is
no doubt Mr. Parhar has sustained significant ongoing injuries arising from the
Third Accident. I have found he had significantly recovered (90%) from the Second
Accident and was functioning well at work at the time the Third Accident
occurred.

[135]     Mr. Parhar
has just turned 50 years of age. He has at least another 15 years of his
working life ahead of him. Mr. Parhar still has a young family who he and his
wife are committed to assisting through university to pursue professional
careers. Mr. Parhar is motivated to work to provide for his family as
demonstrated by his undertaking contract work as an AME which involves travel,
being away from his family and is painful for him to do.

[136]     I am
satisfied Mr. Parhar would inevitably have searched for work as an AME when, or
if, his position with Chevron was terminated. He applied to return to Cascade
without success and has pursued contract work as an AME as and when it has
become available.

[137]     It is
clear from the assessments conducted by Ms. Craig, Mr. Carlin and Mr. Aquila
that Mr. Parhar is not able to function physically in the position of an AME or
any other occupational position involving similar physical effort.

[138]     I find
there is a high likelihood that, notwithstanding the recommendations made for
continued treatment, there will be no significant enduring recovery in his
lower back, neck and right shoulder injuries and that his ability to continue
to work as an AME or to obtain and maintain a similar level of income from
employment in the future will be severely limited. Even had he chosen to remain
in employment with Cascade he would likely have been accommodated for his
physical limitations. In undertaking such accommodation it is likely, probably
sooner rather than later, he would have had to take a lesser position, a lesser
wage and ultimately work fewer hours.

[139]     The
evidence was that even with vocational retraining, given his age, education and
physical limitations Mr. Parhar is limited in the work he will be able to do. Mr.
Carlin’s evidence was that what limited positions might be available to him
would be in the $12 to $16 range.

[140]     In my view
this is an appropriate case to apply the capital asset approach to the
assessment of loss of earning capacity.

[141]      I find
Mr. Parhar has been rendered less capable overall from earning income from all
types of employment; that he is less marketable or attractive to potential employers
as a result of his injuries; that for the same reason he has lost the ability
to take advantage of all job opportunities which might otherwise have been open
to him had he not been injures and that he is less valuable to himself as a
person capable of earning income in a competitive labour market: Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353.

[142]     Taking
into account these factors including the contingencies I have earlier discussed,
the above principles, the case law relied on by counsel and the mathematical
calculations of Mr. Benning, I award the plaintiff $250,000 as future loss of
earning capacity.

Cost of Future Care

[143]     The
preponderance of the medical evidence (Drs. Parhar and O’Conner and Ms. Craig)
is that Mr. Parhar will require assistance in performing home upkeep and
assistance with the regular household duties he performed. As well Dr. Parhar,
Dr. O’Conner Dr.Hamm and Ms. Craig have each recommended an ongoing exercise
program supervised by a kinesiologist, personal trainer or other professional.

[144]     I find the
following to be reasonable and medically justified future care service costs:

1.     Structured
rehabilitation program under supervision of a kinesiologist, physiotherapist or
personal trainer: $2,400 (the average of Ms. Craig’s figures).

2.     Annual gym
membership of $700 per year to age 65 discounted for contingencies: $8,500.

3.     Allowance
for periodic physiotherapy or massage therapy related to flare-ups of myofacial
pain at $75 per treatment discounted for contingencies arising from flare-up of
Second Accident injuries and for potential beneficial effects of structured
rehab program: $6,500.

4.     Vocational
Rehabilitation Consulting. The evidence established Mr. Parhar would likely
need some assistance in retraining. Dr. Parhar suggested Mr. Parhar be assessed
by a vocational consultant in two two hour sessions. Ms. Craig testified the
cost of such consultant was $105/hr. In my view it is reasonable to provide Mr.
Parhar with this assistance and award him $420.

Housekeeping Services

[145]     I am
satisfied that based on the medical evidence, the plaintiff has made out a
claim for lost housekeeping services. He will require assistance in the future
for ongoing heavier housekeeping including seasonal upkeep of his home that he
had been able to do before the accident. Applying the present value table which
Mr. Benning produced in evidence and taking into account the contingencies I
have referred to above I award $100,000 for this head of damage.

Special Damages

[146]     Special
damages have been agreed by counsel in the amount of $5,336.68.

Summary

[147]     In summary
then I award the following amounts:

[148]    
The plaintiff is entitled to costs unless there are circumstances either
counsel needs to bring to the Court’s attention. If such is the case either
counsel have liberty to apply within 30 days of this decision being issued.

“Greyell
J.”