IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140508

Docket: 07-1107

Registry:
Victoria

Between:

Spencer Albert
Francis Land, an infant, by his
Litigation Guardian, Georgina Dawn Land

Plaintiff

And:

Anthony Joseph Di
Maddalena

Defendant

Before:
The Honourable Mr. Justice B.D. MacKenzie

Reasons for Judgment

[1]            
This is a claim for damages, arising from injuries Spencer Land, an
infant, suffered as a result of a motor vehicle accident that occurred on April
22, 2005. The claim is advanced by his mother and litigation guardian, Georgina
Dawn Land. The defendant admits liability and acknowledges that the plaintiff
is entitled to compensation but says the award should be much more modest than
what the plaintiff says is fair and reasonable.

The Accident

[2]            
The accident occurred near Coombs, British Columbia, on the Alberni
Highway, and involved the collision of motor vehicles driven by Spencer’s
mother and the defendant. Ms. Land’s vehicle was written off as beyond repair.

[3]            
Spencer was eight years old at the time of the accident. He was seated
in the middle rear seat of Ms. Land’s motor vehicle, wearing a lap seat
belt. To his right was a young friend who was also injured. Both Ms. Land and
Spencer were transported to a local hospital. Spencer was released later that
evening but Ms. Land remained in the hospital for five days.

Testimony

Ms. Land, Mother

[4]            
Ms. Land testified that prior to the accident Spencer was very active in
soccer, tennis, Tai Kwan Do, would always be running “full on” and did not
complain of knee problems or back or neck pain.

[5]            
She described the collision as a “huge impact” that threw her forward
and then back. She saw that Spencer’s right leg was “down and bent” and that he
was in a “twisted condition” but that his visible injuries were limited to a
large “goose egg” on his forehead.

[6]            
When she returned home after the accident she says Spencer was highly
emotional and the way he moved “really stood out.” She testified that he was in
quite “bad shape” emotionally and physically and complained of headaches, aches
and pains, and did not want her to leave his bedroom in the evening, behaviour
Ms. Land had not observed before the motor vehicle accident.

[7]            
Ms. Land says that Spencer described his headaches like a “balloon
popping” and, although he had gone to the hospital on one occasion before the
accident because of a headache associated with the flu, he had not previously
used the term “popping” when describing a headache.

[8]            
Ms. Land recalls that after the accident her family doctor, Dr. Biglow,
advised her to keep Spencer as active as possible to strengthen his core and referred
Spencer to physiotherapy and chiropractic treatments. Ms. Land says these
treatments have provided Spencer with some relief from his back and neck pain and
that his anxiety about going to bed lasted about three years after the motor
vehicle accident.

[9]            
Ms. Land agreed that Spencer has remained very physically active since
the accident. He has been playing soccer, tennis, baseball and basketball as
well as playing football for his high school varsity team in the fall of 2013. The
only significant problem he has had with sports was in 2007 when, at
approximately the age of 10, he began playing box lacrosse on cement. This
activity caused him to experience a lot of pain in his knees. As a result he
stopped playing lacrosse.

Spencer Land, Plaintiff

[10]        
Spencer is now 17 years old. Even though he was only eight years old at
the time of the accident, Spencer recalled that his right knee was lodged under
the front seat and was painful. He said he does not remember having headaches,
knee, neck or back pain prior to the accident. Spencer confirmed that he resumed
playing sports less than a year after the accident and remained very active in basketball,
soccer and tennis until very recently.

[11]        
As far as school is concerned, Spencer acknowledges that, while he
excels in physical education and all sports, he has trouble with some of his academic
courses, especially math, science and English, and that he used to skip classes
and this affected his performance in school. In addition to skipping classes,
Spencer also testified that he would frequently have difficulty getting up in the
morning for school, which often resulted in him being late because he would
miss the bus. He said this was because of pain in his knees and back. However,
given all the circumstances, I am of the view his being late for school was a
combination of his less than enthusiastic approach towards school and his aches
and pains.

[12]        
In contrast with his attitude towards school, Spencer appears to be
committed to work. He confirmed that in 2012 he had a job at Silver Meadows
Farm that was, according to Spencer, “brutal” work, requiring him to be up at
6:00 o’clock every morning, throw 70 pound bales of hay onto a truck and
sometimes chuck and pack 300 sacks of corn a day. However, Spencer was able to
get up for work and perform all of these tasks without any medication for pain.
He did, however, say that he received some physiotherapy because of being sore
after putting in these hard days as a farm labourer.

[13]        
Spencer also worked in 2013. Beginning in May, he worked after school as
a dishwasher/prep cook at Cuckoo’s restaurant in Coombs. He says this too was a
very physically demanding job, requiring him to work four or five days a week
into the late hours of the night. Spencer did not miss any days of work at the
restaurant because of pain but quit when he did not get a raise. After leaving
the job at Cuckoo’s, he worked during the summer of 2013 in the kitchen at
another restaurant. When school started, he reduced his work hours because he
was “committed to football.”

[14]        
In regard to playing high school football, Spencer was a defensive end
and played on the kick-off and punt return teams. He testified that practicing four
to five days a week was too much of a commitment and that football was “taxing
on my body.” He also said that his knees were better prior to playing football
but, after he started playing, they became sore again.

[15]        
At the present time Spencer claims that he is more motivated and
focussed on his studies in the hope of achieving sufficient academic success to
permit him to pursue criminology courses after high school and become a police
officer. As a result, he has stopped playing sports for the time being in order
to focus on improving his school grades.

Supporting Witnesses

[16]        
The plaintiff called other witnesses who basically confirmed that before
the accident Spencer was a high energy boy who did not complain of aches and
pains.

[17]        
Lorraine Gentry is Spencer’s aunt. She saw him the day after the
accident and confirmed that Spencer was fatigued and in pain for some time
afterwards. She has not spent much time with Spencer for the last two and
one-half years and was unaware of all of the jobs Spencer has had during that
time.

[18]        
Morgan Poole is Spencer’s girlfriend. They have been dating since May
2013. Ms. Poole testified Spencer has pain and stiffness in his neck and
back when he gets up in the morning, resulting in her giving him massages. She
recalls Spencer experiencing only one significant migraine since they have been
together.

[19]        
Denise Smehal is Ms. Land’s friend who helped her and Spencer at home
after the accident. At the request of Ms. Land, she has also given Spencer 10‑20
“gentle” massages since the accident in an attempt to relieve Spencer’s neck
and back pain.

[20]        
Andy Sharman has been Spencer’s basketball and soccer coach for several
years. He testified that after the accident Spencer was “not quite the same”
and he needed periodic rests during games because of pain. Mr. Sharman confirmed
Spencer did not play soccer or basketball last year because he played football,
but anticipates Spencer will play basketball and soccer this year.

[21]        
All in all, I accept the general observations of these witnesses as to
Spencer’s complaints of pain and soreness, consistent with much of the evidence
provided by Spencer and his mother.

Medical Evidence – Dr.
Biglow, Family Doctor

[22]        
Dr. Biglow is a general practitioner and Spencer’s family doctor. He has
been a practitioner in Qualicum Beach, British Columbia, since 1991 and was
Georgina Land’s family doctor prior to Spencer’s birth. Dr. Biglow confirmed he
was aware that Spencer was a very active young person and engaged in many
sports.

[23]        
Dr. Biglow testified that he saw Spencer a few days after the motor
vehicle accident on April 28, 2005, and approximately 14 more times before August
2007.

[24]        
Dr. Biglow’s records include a note in early May 2005, approximately two
weeks after the accident, that Spencer made no complaints of pain and that a bruise
on Spencer’s knee was resolving. However, several days later, on May 11, 2005,
there is a note that Spencer, despite having a normal range of motion in his
shoulder, complained of aches or pains to his neck and shoulder. A couple of
months later, on June 9, 2005, Dr. Biglow referred Spencer to a chiropractor
for treatment. Dr. Biglow’s notes from Spencer’s visit on September 15,
2005, indicate that there were “no headaches” at that time.

[25]        
In January 2006, Dr. Biglow referred Spencer to Dr. Penny, an orthopaedic
surgeon in Victoria. The only other significant record from 2006 was made in December
indicating that either Spencer or his mother stated that Spencer “always” had a
sore back.

[26]        
I pause here to note that in January 2006 Dr. Penny diagnosed Spencer’s
knee problems as osteochondritis dessicans (“OCD”) and concluded there were no
serious pathology issues at that time. This diagnosis was also confirmed by
Dr. Cameron, an orthopaedic surgeon, in his consultation report dated
February 20, 2008. Dr. McCollister, a specialist in pediatric medicine,
also confirmed the diagnosis of OCD in Spencer’s knees in his medical report
dated February 9, 2010.

[27]        
In August 2007, Dr. Biglow referred Spencer to Dr. Cameron. Dr. Biglow
noted that Dr. Cameron was “not convinced of any significant or serious injury
or illness in his knees.” There were notes regarding headaches and nightmares.
In January Dr. Biglow noted that Spencer complained of headaches of varying
severity. In June and August 2007, Dr. Biglow recorded that Spencer was
experiencing nightmares. In his testimony, Dr. Biglow stated he recalled being informed
of the nightmares in January 2007 despite not mentioning them in the records
until June 2007. Dr. Biglow’s opinion is that Spencer’s anxiety and “sleep
disturbances” were because of the traumatic motor vehicle accident of 2005, and
the resulting hospitalization of his mother.

[28]        
In August 2007, Dr. Biglow performed a physical examination of Spencer.
He subsequently prepared a brief report on October 9, 2007. Dr. Biglow wrote on
May 29, 2008, that Dr. Cameron confirmed Spencer had OCD, “a congenital
condition of his lower limbs,” which Dr. Biglow stated “is not as a consequence
of the motor vehicle accident but may have been aggravated by his disabilities
following the motor vehicle accident and slow recovery.”

[29]        
Dr. Biglow testified that in his most recent visit with Spencer in
August 2013, the only complaint from Spencer having anything to do with the
motor vehicle accident was infrequent migraine headaches. As a result, the
defendant submits that Spencer’s injuries from the accident have pretty much
resolved.

Dr. Cockwill, Chiropractor

[30]        
Dr. Cockwill is the first chiropractor Spencer saw after the accident. He
initially saw Spencer for four visits, each approximately two weeks apart.

[31]        
The first visit, on June 1, 2005, about six weeks after the accident,
involved Dr. Cockwill administering specific spinal adjustments to “balance”
Spencer’s spinal musculature and reduce the postural distortions observed on an
X-ray and during an initial physical examination.

[32]        
The next visit was June 16, 2005. At that time, measurement of Spencer’s
posture showed a “good” reduction in the postural distortions, although Spencer
said that he was experiencing pain in his legs while riding his bike.

[33]        
During the third visit, on June 30, 2005, Dr. Cockwill observed further
improvement and Spencer stated that he was “feeling good.”

[34]        
On the fourth visit, on July 15, 2005, Dr. Cockwill indicated that
Spencer had significantly improved in the three months post-accident. Dr. Cockwill
reported, “he stated that he was feeling good. He had no headaches or leg pain
and just occasionally experienced some neck pain.”

[35]        
Approximately six months later, on January 14, 2006, Spencer again visited
Dr. Cockwill, complaining of pain in his right knee and left heel. A
spinal assessment disclosed the return of postural distortions: a left head
tilt, a low left hip and a functionally short left leg. Dr. Cockwill performed a
spinal adjustment and advised Spencer to return two weeks later, on
January 28, 2006. At that visit, Spencer again presented with “small
spinal distortions” and stated that he was “feeling good now.”

[36]        
On May 2, 2006, Spencer again visited Dr. Cockwill, this time complaining
of pain in his left Achilles tendon and left knee. Dr. Cockwill noted that this
pain was affecting Spencer’s running and walking and that Spencer told him this
pain was not present prior to the accident. However, Spencer told him that
“everything else was feeling pretty good.” By this time Spencer had orthotics
for flat feet and, despite being only nine years old, was running and training
for a half marathon, although he was unable to participate in the ultimate
event because of pain in his knees. Dr. Cockwill noted, “he was adjusted
and again was recommended to return for a check-up in two months or sooner if
symptoms worsened.”

[37]        
Spencer did not return for a check-up with Dr. Cockwill until almost two
years later, on April 3, 2008, this time complaining of bi-lateral knee pain,
headaches, lower back pain and neck pain. During this visit, Ms. Land apparently
informed Dr. Cockwill that an MRI had been performed that showed
“developmental problems with his knees.” Spencer told Dr. Cockwill that he
was still playing soccer but no longer playing lacrosse. At this time,
Dr. Cockwill advised Spencer and his mother that it was important that he
had regular chiropractor treatments to “keep his spine balanced and hopefully
ensure recovery.”

[38]        
Less than two weeks later, on April 16, 2008, counsel requested that
Dr. Cockwill provide a chiropractic medical-legal report. In this report,
dated June 26, 2008, Dr. Cockwill states:

The symptomatic complaints of neck pain, headaches and lower
back pain as well as objective findings of vertebral fixations, muscular
hypertonicities, swelling, and postural distortion can be attributed to the
motor vehicle accident. Trauma frequently initiates these symptomatic and
objective findings.

As for his leg pains and problems running, I am unable to
offer an opinion. If his knee pains are developmentally related, he would have
developed leg pains regardless of the accident. If his pains are due to
osteochondritis dessicans, trauma to the knee is frequently the cause of
developing an interrupted blood supply. In this case his knee problems may
possibly be related to the accident. If his leg pains and problems running,
standing, and walking are due to prolonged postural distortion and sub-optimal
vertebral and pelvic kinematics, then the accident can also be a causative
factor.

Spencer is presently 30% impaired. He is not limited in activities
of daily living but is impaired in activities which excessively stress his
spine or knees. If left untreated I would expect future impairment which I
estimate there is a 60% probability of worsening over time. Young adolescents
who have been experiencing a worsening of symptoms over a three-year period are
unlikely to spontaneously recover. Young people with symptomatic spinal
conditions usually turn into adults with worse symptoms and impairment. If the
problem with his knees is truly from osteochondritis dessicans, he may either
spontaneously recover, or require surgical intervention to avoid problems later
in life. In any case, stopping repetitive activities may be the only positive
treatment.

As for recommendations; regular
treatment and monitory of his condition in our clinic is advisable if recovery
is to be expected. Objective and symptomatic improvement was seen in the past
when regular visits were seen. After prolonged intervals between visits we have
seen a regression in his condition.

[39]        
The defendant says that Dr. Cockwill’s report notes that as early as July 4,
2005, Spencer stated that he was feeling good and had no headaches or leg pain
and was only occasionally experiencing some neck pain at that time. The
defendant also says that, although the plaintiff received three chiropractic
treatments in 2005, he received no physiotherapy treatments at that time and,
moreover, there was no pain medication required in the “acute phase” of his
recovery in 2005.

Dr. Larry Smith,
Chiropractor

[40]        
During the two year interval between seeing Dr. Cockwill, Spencer was
referred to another chiropractor, Dr. Larry Smith, who first performed
manipulation on Spencer on January 5, 2007.

[41]        
Dr. Smith saw Spencer again on February 16, 2007. At that time Spencer
confirmed he was able to play basketball and Dr. Smith “objectively noted an
improvement in his posture in both the anterior/posterior and lateral views.”

[42]        
On March 30, 2007, Spencer complained that he felt sore while sitting at
school and Dr. Smith noted, “persistent posterior joint restriction from T3-T5
bilaterally, and at both side joints.” Once again, spinal manipulative therapy
to the thoracic spine and S1 joints was performed.

[43]        
Spencer’s next visit was April 27, 2007. He received further spinal
manipulation. Dr. Smith also noted Spencer’s mother advised him that Spencer
was having consistent nightmares over the last three months.

[44]        
On July 30, 2007, Spencer attended Dr. Smith and said he had sore knees
after playing lacrosse. Ms. Land again stated that Spencer was experiencing
nightmares and anxiety. Dr. Smith performed an examination of both knees and
“detected a mild amount of tenderness on the superior patellae bilaterally and
also mild ligamentous instability on anterior-posterior and lateral-medial
joint challenge testing.”

[45]        
Dr. Smith prepared a report on October 14, 2007, in which he opined:

It is a possibility that
Spencer’s knee pain could be an epiphyseal plate (growth plate) injury. In
layman’s term, growth plates are areas of growing tissue located near the ends
long bones of children.

At p. 4,
Dr. Smith wrote:

Spencer has suffered whiplash
associated disorder (WAD) grade 1-2 injuries to his cervical spine, thoracic
spine and Jumbo pelvic regions. It is most likely caused by the motor vehicle
accident of April 22, 2005. Spencer has persistent subjective complains of pain
and tenderness in the mid back and low back regions. These subjective findings
correlate well to my consistent objective examination findings of posterior
joint fixations and palpable muscular hypertonicity. The question that needs to
be answered at this point is the cause of Spencer’s sore knees, limping and
abnormal gait. Did the MVA of April 22, 2005 cause damage to the epiphyseal
plates in Spencer’s tibia and femur? The most common cause of epiphyseal
(growth) plate injuries are due to accidents and overuse. Since this type of
injury falls outside my expertise, I would highly recommend that Spencer be
examined by an orthopaedic surgeon to determine the exact nature of the injury.
It is very unusual for a 10 year old boy to be limping for over 3 months. If
the above problem can be properly addressed and resolved, it is my opinion that
Spencer will show further improvement and recover sufficiently from his
injuries.

[46]        
The defendant points out that despite testimony from Spencer and his
mother that Spencer had seen Dr. Smith as late as July 2013, the only chiropractic
opinion from Dr. Smith is from 2007. The defendant says that it is reasonable
to infer that Dr. Smith had nothing more to add to his October 2007
opinion where he concluded Spencer had “suffered whiplash associated disorder
grade 1-2 injuries to his cervical spine, thoracic spine and Jumbo pelvic
regions,” as well as bilateral sacroiliac syndrome. The defendant says this
supports his submission that Spencer suffered only mild to moderate soft tissue
injuries as a result of the accident.

Dr. Chris McCollister

[47]        
Dr. McCollister is a specialist in pediatric and adolescent medicine who
initially saw Spencer for knee complaints and later for headaches. Regarding Spencer’s
headaches, Dr. McCollister could not offer a prognosis with respect to
Spencer’s complaints and acknowledged that “it is difficult to award direct
causation of headaches to the MVA, but I feel strongly that the MVA is a
contributing factor.”

[48]        
Dr. McCollister prepared a report, dated February 9, 2010, that
addressed soft tissue injuries although, as the defendant points out, there was
no mention or discussion of soft tissue injuries on an April 1, 2008, visit,
nor any recommendation for chiropractic treatment or physiotherapy. In his report,
Dr. McCollister opined that Spencer suffered “a long-term soft tissue injury”
and “that is the key injury related to the MVA.” He also wrote that “Spencer’s
soft tissue injury of the neck, shoulders and back disrupts his normal day to
day functioning.”

[49]        
Dr. McCollister noted that, despite an MRI from February 10, 2008, indicating
OCD “without any abnormality of the menisci and no intra-articular loose body,”
he could not provide an opinion on the cause of the OCD. He wrote that “[u]nfortunately
the cause of OCD is often unknown, although trauma or overuse have both been
implicated” and that “[a]lthough OCD may have been precipitated by the MVA,
direct causation is impossible to say.”

[50]        
The defendant submits that this evidence supports his position that the
plaintiff has not established that the OCD was caused by the accident or
triggered a pre-existing condition of OCD, especially because Dr. McCollister
noted on May 26, 2009, that Spencer’s knee pain “had really improved” and only
occurred in connection with “intense physical activity.” This observation is consistent
with Spencer’s testimony that playing lacrosse on cement triggered recurring knee
pain in 2007.

Dr. Kemble

[51]        
Dr. Kemble, a neurologist, prepared a medical report dated August 24,
2010, in which he wrote:

The headaches have probably been
provoked by the significant closed head injury and cervical soft tissue injury although
there may well have been a pre-existing underlying migraine tendency. The
probability is that with time the headaches will become less although it is
probable that Spencer will continue to have headaches intermittently throughout
his life.

Dr. Kemble’s report also stated:

Spencer describes cervical pain,
which has occurred since the automobile accident. The cervical pain is due to a
soft tissue injury caused by that accident. The cervical pain has probably
slightly improved and the probability is that given time the cervical pain will
reduce significantly further.

With respect to Spencer’s back
pain:

The probability is that given
time the lumbar pain will significantly reduce although I envisage that in
future years he will be prone to episodic lower back pain as a result of the
automobile accident.

With respect
to his opinion on Spencer’s future:

I therefore envisage that in the
future Spencer will be prone to headaches, cervical and low back pain although
the pain will not be as troublesome to him in future years as it is in
the present time.

[52]        
Dr. Kemble testified that, although there are other potential
causes for Spencer’s headaches, his opinion is that the motor vehicle accident
was the probable and most likely contributing factor to the ongoing headaches.

[53]        
In cross-examination, Dr. Kemble noted that Spencer had not received any
sort of treatment to deal with stress and that in his opinion Spencer’s stress
may well be “a significant factor in perpetuating Spencer’s headaches, cervical
and low back pain.” Dr. Kemble stated that he believes ongoing treatment to
deal with Spencer’s stress could reduce his complaints of headaches, cervical
and low back pain.

[54]        
Dr. Kemble concluded that preventive migraine medication would not be
recommended because Spencer’s headaches are so sporadic, once or twice a month “at
most.” As a result, the defendant says that there is little evidence to
indicate that Spencer suffers from consistent headaches that are of a
“debilitating nature.”

Dr. MacKean

[55]        
Dr. MacKean is a specialist in physical medicine and rehabilitation who
has been practicing for approximately 20 years. She provided opinion evidence
on the diagnosis and prognosis of injuries as well as causation. She also
prepared a report in 2010, some five years after Spencer was injured in the
motor vehicle accident. Dr. MacKean acknowledged that, because the report
was prepared five years after the accident, she had to rely to a great extent
on the medical documentation she was provided.

[56]        
With respect to the relationship between OCD and Spencer’s knee problems,
Dr. MacKean acknowledged that Dr. Penny is a well-known and respected
orthopaedic surgeon specializing in sports medicine. She accepted his January
2006 diagnosis that Spencer’s knee problems were because of the onset of OCD
and agreed, or at least had no quarrel, with Dr. Penny’s conclusion that
Spencer had no serious “pathology” at that time.

[57]        
Dr. MacKean based her report on an August 26, 2010, interview with
Spencer and his mother, lasting approximately 45 minutes, when Spencer
was 13. She noted that Spencer, at that time, reported he had “occasional”
headaches, neck and back pain and some knee pain. However, during the physical
examination Spencer complained only of pain to the inside of his knee and she
saw no objective signs of injury to his neck and back and no significant loss
of range of motion.

[58]        
Dr. MacKean testified that she was “not saying” the OCD in Spencer’s
knees is from the motor vehicle accident. She said that there was no specific
objective finding to establish that Spencer’s knee pain was caused by the accident
and that because she relied on Spencer’s self-reporting, she could not form an
opinion regarding whether his pain was, or was not, a result of the injuries
arising from the motor vehicle accident.

[59]        
Moreover, Dr. MacKean agreed with the defendant that much of Spencer’s
knee pain could possibly be attributed to the fact that he is a very active and
dedicated athlete who has participated in significant sporting activities over
the years and may have overdone his athletic endeavours. Additionally, under the
heading “Impression”, Dr. MacKean confirmed in her report that she was not
saying the presence of OCD in both of Spencer’s knees “is from the motor
vehicle accident.”

[60]        
In reference to Spencer’s complaints of soft tissue pain in his back and
shoulders, she concluded that he was being forthright and honest when
describing this pain and took what Spencer and his mother had to say at “face
value.” As such, Dr. MacKean opined that, in her view, as Spencer said he was
asymptomatic before the accident, it is reasonable to conclude the accident was
responsible for Spencer’s neck and back pain. However, she found no significant
loss of range of motion.

[61]        
Dr. MacKean also opined that the motor vehicle accident was “partly
responsible” for Spencer’s headaches, and that trauma, along with stress and
diet, is “one of the factors” that can contribute to headaches. She agreed, in
cross-examination, that it is usual for headaches to be most severe in the
first six months following trauma and would usually decrease in severity and
frequency after that period of time but pointed out that Spencer reported his
headaches were persistent and not totally resolved in 2010. She stated that, in
general, headaches are all too common and headaches can develop without injury
or trauma.

[62]        
As far as the future is concerned, she confirmed that most children get
better after experiencing moderate soft tissue injuries. However, she noted
that Spencer, while not severely disabled, was still describing some soft
tissue pain five years after the motor vehicle accident and suggested he could have
possible future problems. Dr. MacKean did concede however that it is
difficult to “assess” children and until Spencer is 21 years of age or older,
she will be unable to give a concrete prognosis.

Spencer’s Present Physical
Condition and Circumstances

[63]        
At the present time Spencer says his knees are “better” and have been
“fine” the last two years. The last time he felt pain in his knees was when he
was playing football. On the other hand, Spencer says that although his knees
are better, and things have improved, his neck and back still cause him pain
and he still occasionally gets headaches. These headaches are not as frequent
or severe as in the past, and what he describes as “migraines” occur at the
most once or twice a month. Spencer testified that he has not had a migraine
for approximately three months and that sporting activities seem to “trigger”
his headaches. He says that he does not get headaches every time he plays
sports, but every time he does get a headache, it is after he plays sports or
strenuously exercises.

[64]        
In the context of taking preventative medicine for his headaches,
Spencer testified that, like his mother, he does not like to take medication.
As a result, he only takes Tylenol or Advil when he is in “severe pain.” In the
past he has taken medication when Dr. Biglow gave him samples, including Relpax
and Axert, however Relpax worked only two out of the three times he tried it,
and on the two occasions that he used Axert, it did not provide any relief.

[65]        
Spencer acknowledged that the only treatment he receives for his neck
and back pain is chiropractic treatment from Dr. Smith. His last
appointment with Dr. Smith was July 3, 2013, for treatment for
shoulder, neck and back pain. Spencer says he intends to take further
chiropractic and massage treatment in the future, as these treatments offer
significant relief to his neck, back and shoulder pain. As far as massage is concerned,
Spencer confirms his mother used to give him massages but his girlfriend now
gives him some massage from time to time. Spencer agreed he has not been to any
physiotherapy since August 2012.

[66]        
Finally, Spencer says that his anxieties have disappeared. He says he is
still a little “scared” of driving but did obtain his driver’s licence late
last year and has driven once since then.

Causation

[67]        
The plaintiff must prove that, “but for” the defendant’s negligence, he
would not have suffered an injury. Causation “is essentially a practical
question of fact which can be best answered by ordinary common sense” and the
applicable standard of proof is on the balance of probabilities: Athey v.
Leonati, [1996] 3 S.C.R. 458, paras. 14 and 16.

[68]        
In the more recent case of Farrant v. Laktin, 2011 BCCA 336, citing
Resurfice Corp. v. Hanke, 2007 SCC 7, the Court of Appeal confirmed at
paras. 49 and 56 that if a court determines that the defendant’s conduct was
not the sole cause of the plaintiff’s injury, the judge must also consider
whether there is a “substantial connection,” beyond de minimus, between
the defendant’s conduct and the injury.

[69]        
The plaintiff says the evidence establishes that the motor vehicle
accident caused, or is substantially connected to, the plaintiff’s injuries and
the pain he has endured since the date of the motor vehicle accident.

Knee
Pain

[70]        
The plaintiff says his knee pain is “related to the MVA.” Specifically,
the plaintiff submits that the most “severe” pain after the motor vehicle
accident was felt in his knees and that his mother and friends noticed an
“abnormal gait” when he ran or walked.

[71]        
The plaintiff says that his knee pain started after the motor vehicle
accident and lasted “for a number of years after.” On this point, I accept the
plaintiff is credible when describing his knee pain as persisting for a number
of years after the accident.

[72]        
The plaintiff acknowledges that his knee pain subsided in 2011, six
years after the accident, although he also says that it flared up in the fall
of 2013 when he played on his high school football team. Nevertheless, the
plaintiff agrees that he now walks without knee pain.

[73]        
On this issue, the defendant expressly concedes that Spencer “must have”
sustained bruising to both knees and that the initial trauma would account for
Spencer’s knee pain for a period of time after the accident, but after that
time, the defendant submits the pain in Spencer’s knees was most probably
related to OCD.

[74]        
What is therefore in dispute is whether the motor vehicle accident was
the cause of Spencer’s OCD, or is substantially connected to the onset of Spencer’s
OCD, beyond the de minimus level.

[75]        
The plaintiff submits that Dr. Cockwill, Dr. MacKean, and Dr.
McCollister all implied that Spencer’s OCD could be related to injury sustained
in the accident. He highlights that Dr. McCollister reported “trauma or overuse
have both been implicated” as a cause of OCD, that Dr. MacKean testified, “if”
Spencer had a prior OCD tendency or condition, “it is possible” that the
accident could have aggravated it, and that Dr. Cockwill observed:

If his pains are due to
osteochondritis dessicans, trauma to the knee is frequently the cause of
developing an interrupted blood supply. In this case his knee problems may
possibly be related to the accident.

[76]        
The plaintiff says that, based on these opinions and the circumstances,
there is a probable connection between the pain associated with Spencer’s OCD
and the motor vehicle accident. Counsel says the common sense conclusion is
that there is a relationship between the motor vehicle accident and the several
years of knee pain Spencer has suffered since then.

[77]        
The defendant, on the other hand, says that the totality of the evidence
does not support a finding, on a balance of probabilities, that Spencer’s OCD
condition was caused or contributed to by the motor vehicle accident.

[78]        
The defendant says that the expert opinions do not support a
determination that the accident is causally connected to the OCD. He points out
that Dr. McCollister agreed in cross-examination that there are multiple
theories about the “etiology” of OCD and stated, “although OCD may have been
precipitated by the MVA, direct causation is impossible to say.” The defendant highlights
the fact that Dr. MacKean did not opine that Spencer’s OCD was caused by the accident.
In cross-examination, Dr. MacKean agreed that at no time did she opine
Spencer’s OCD was “the result of the accident.” In addition, Dr. MacKean agreed
that it is “impossible to say” if any trauma and bruising to Spencer’s knees as
a result of the accident “aggravated the OCD.” The defendant submits that
Spencer’s pain appears to be connected with sports and intense physical
activity and is not caused by the accident.

[79]        
The defendant also points out that when Spencer saw Dr. Van Rensburg, a
pediatrician in Nanaimo in October 2005, while Ms. Land was “concerned” about
Spencer’s knees, there was no note of complaints by Spencer about knee pain.
The defendant says this is consistent with the submission that the OCD in
Spencer’s knees developed some time after the accident and which was not
triggered by the accident.

[80]        
In these circumstances, given the totality of the medical evidence, I
agree with the defendant’s submission that the evidence has not established, on
a balance of probabilities, that the accident is causally connected with the
onset of OCD in Spencer’s knees. I am satisfied that Spencer’s extensive sporting
activities are more likely to have caused or triggered the onset of OCD than
the motor vehicle accident.

[81]        
However, while I find the plaintiff has failed to establish the OCD in
his knees was caused or was substantially connected to the accident, I agree
with the defendant that some of Spencer’s post-accident knee pain in general
was caused by the accident and should properly be considered when determining what
would be a fair and reasonable award for non-pecuniary damages.

Soft Tissue Injuries

[82]        
The defendant concedes that Spencer “certainly has had complaints of
pain in his neck and back and shoulder as well as his knees from time to time
since the accident occurred,” but says:

It is far from clear on the
evidence produced by the plaintiff if in fact his current and ongoing complaints
in these areas are as a result of his involvement in the accident or if he is
describing genuine pain he experiences in these areas due to the physical
nature of his sporting activities, having recovered from the stiff and sore
state he was in immediately following the accident.

[83]        
The plaintiff submits that it is “clear”, given the medical evidence and
his testimony, that the accident caused his neck, back and shoulder pain and that
it was the catalyst for his headaches. The plaintiff says the subsequent concussions
he suffered may have contributed to his headaches but they are insignificant
compared to the injury suffered during the motor vehicle accident.

[84]        
On this point, the plaintiff refers to Dr. Cockwill who “estimated”
there is an 80 percent chance the plaintiff’s neck and back pain and
headaches were caused by the accident. Spencer’s first chiropractor, Dr. Smith,
says that Spencer suffered a whiplash-type injury as a result of the motor
vehicle accident.

[85]        
Similarly, Dr. McCollister opined that the soft tissue injuries “are
strongly related to the motor vehicle accident.” Dr. MacKean and Dr. Kemble
provided similar opinions.

[86]        
While the defendant does not specifically concede this point, he does
say, “whatever long-term soft tissue injury Spencer may have suffered in the
motor vehicle accident has had a relatively minimal effect on his lifestyle and
especially on his sporting activities.”

[87]        
In my view, this is an acknowledgement that, as far as Spencer’s soft
tissue injuries are concerned, the issue is more the assessment of damages
rather than a determination of causation.

[88]        
The defendant also notes that Dr. MacKean did not describe the
plaintiff’s soft tissue injuries as mild, moderate or severe. This, of course, is
something that I have to determine with respect to the ultimate award for
non-pecuniary damages. The defendant also says that there are no fractures or
anything “more sinister other than muscular or soft tissue damage.” Again, this
submission relates more to quantification of damages than to causation.

[89]        
Finally, I appreciate that not every visit to a medical practitioner has
resulted in a clinical note that Spencer was complaining of neck or back pain.
In my view, this is not determinative of the issue and does not mean he did not
have pain from time to time from the soft tissue injuries that he suffered in
the motor vehicle accident. See Carvalho v. Angotti, 2007 BCSC
1760; Stull v. Cunningham, 2013 BCSC 1140.

[90]        
I am satisfied that the evidence establishes that Spencer’s soft tissue
injuries were directly caused by the motor vehicle accident.

Anxiety

[91]        
Ms. Land testified that after the motor vehicle accident Spencer
suffered from anxiety, some psychological difficulties and sleep problems.

[92]        
Fortunately, these difficulties resolved approximately two and one-half
to three years after the accident. The plaintiff therefore says that his “mental
health” was “disturbed” for this period of time because of the accident and the
fact that he witnessed his mother suffer serious injuries.

[93]        
The defendant again does not disagree with this submission but points
out Spencer’s psychological difficulties resolved without treatment or
medication.

[94]        
As a result, while the defendant accepts these difficulties were caused
by the accident, he says they should have a modest impact on the award for non‑pecuniary
damages. I accept the defendant’s submission on this point.

Headaches

[95]        
The plaintiff stated it is clear the accident caused or contributed to
the headaches he has suffered since the accident, some of which have been
migraine headaches requiring rest for one or two days and, at the extreme,
three days.

[96]        
Dr. McCollister stated the accident was a “very different mechanism of
injury” than other incidents when Spencer hit his head and that he “strongly” believes
that Spencer hitting his head during the motor vehicle accident is a
contributing factor to Spencer’s headaches.

[97]        
Similarly, Dr. Kemble wrote, “the headaches have probably been provoked
by the significant closed head injury and cervical soft tissue injury, although
there may well have been a pre-existing underlying migraine tendency.” Dr.
Kimble says “it is possible but not probable” that the two concussions Spencer has
suffered, one while playing soccer and the other as a result a playground
mishap, are the cause of Spencer’s current headaches but that his opinion is
that the accident is the “probable cause.”

[98]        
The defendant, in written submissions, does “concede that on the
totality of the evidence it would appear that the plaintiff suffered a mild
concussion or bruise to his brain in this accident which fortunately did not
appear to have resulted in any significant consequences.” However, the
defendant submits that the increase in the frequency and intensity of the
headaches over the years indicates that they were not caused by the motor
vehicle accident.

[99]        
In support of this submission, the defendant points out that there were
no medical notes regarding headaches with “migrainous nature” until between one
and one-half and two years after the motor vehicle accident. On this point,
Dr. McCollister agreed that, if the accident was the cause of the headaches,
he would expect them to manifest within six months of the motor vehicle
accident. However, he also stated that soft tissue injuries, such as those
suffered by Spencer in the motor vehicle accident, may trigger migraines “some
years” post-motor vehicle accident.

[100]     The
defendant says that because of the physical nature of Spencer’s sporting
activities, the two concussions he has suffered from sports and playing on the
school ground, both post-accident, and the opinion of Dr. Kemble, the evidence
is insufficient to establish that the motor vehicle accident directly caused or
contributed to Spencer’s headaches. The defendant submits Spencer would have
suffered headaches intermittently throughout the rest of his life,
notwithstanding the accident.

[101]     Given the
totality of the medical evidence, I am unable to agree with the defendant on
this point. I am satisfied the plaintiff has established that there is a
substantial connection between the motor vehicle accident and Spencer’s
headaches, which fortunately have abated to a significant degree.

Non-Pecuniary Damages

[102]    
While both parties agree that Spencer is entitled to non-pecuniary damages
because of the injuries he has suffered in the 2005 motor vehicle accident, the
comments of Verhoeven J. in Power v. White, 2010 BCSC 1084, provide a useful
review of the law:

67.       An award of non-pecuniary damage does not depend
upon the seriousness of the injury, but on its ability to ameliorate the
condition of the victim considering his or her particular situation. The
gravity of the injury alone is not determinative. An appreciation of the
individual’s loss is the key. There is no "tariff". An award will
vary in each case to meet the specific circumstances of the individual case: Lindal
v. Lindal, [1981] 2 S.C.R. 629 at 637.

68.       A non-exhaustive list of common factors that may influence
an award of non-pecuniary damages are: age of the plaintiff; nature of the
injury; severity and duration of pain; disability; emotional suffering; loss or
impairment of life; impairment of family, marital and social relationships;
impairment of physical and mental abilities; loss of lifestyle. Stoicism of the
plaintiff should not reduce the award: Stapley v. Hejslet, 2006 BCCA 34
at para. 46.

69.       Comparison with awards
made in other cases may be of assistance in determining the appropriate amount
of an award.

[103]    
At the same time, I am mindful of the need to consider whether the
complaints of pain extend beyond the expected recovery period. Chief Justice
McEachern in Price v. Kostryba, [1982] 70 B.C.L.R. 397 (S.C.), repeating
his observations in Butler v. Blaylock Estate, [1981] B.C.J. No. 31,
stated it this way:

18.       I am not stating any new principles when I say that
the Court should be exceedingly careful when there is little or no objective
evidence of continuing injury, and when complaints of pain persist for long
periods extending beyond the normal or usual recovery period.

19.       An injured person is
entitled to be fully and properly compensated for any injury or disability
caused by a wrongdoer. But no one can expect his fellow citizen or citizens to
compensate him in the absence of convincing evidence — which could be just his
own evidence if the surrounding circumstances are consistent — that his
complaints of pain are true reflections of a continuing injury.

[104]     As I have
found that the plaintiff has failed to establish, on a balance of
probabilities, that his OCD was causally connected to the 2005 motor vehicle
accident, the award for non-pecuniary damages must necessarily focus on Spencer’s
soft tissue injuries, his anxiety in the early years following the accident,
his ongoing headaches, and some minor pain in his knees prior to the onset of
OCD.

[105]    
When considering what would be a fair and reasonable award, it is
important to recognize that the medical reports are quite dated and the
opinions contained within them must be considered in light of Spencer’s present
circumstances. For example, Dr. MacKean stated in her 2010 report:

He is still growing and as he
continues to grow I expect he will continue to have problems with chronic neck
and back pain as well as knee pain and headaches.

She also
stated:

It is unlikely that these pain
symptoms will settle down over time since it has been over five years following
the date of the motor vehicle accident and these pain symptoms have been
chronic and ongoing.

[106]     This
opinion must be viewed in relation to Spencer’s own testimony that prior to
2011 he was able to play through any pain which may have occurred over the
years, with the exception of lacrosse played on concrete. He also says he has
had little knee pain since 2011, except when playing football. As the defendant
points out, this indicates that his pain has settled down and should not be considered
“chronic and ongoing.” In fact, Spencer testified his knees “are better now.”

[107]     The
defendant also says that the record regarding Spencer’s participation in
physiotherapy and chiropractic treatments supports a conclusion that any
ongoing pain he experiences cannot be significant. The defendant notes that
since June 2010 Spencer has only sought physiotherapy treatment twice in August
2012, because of pain and soreness after tossing around bales of hay at the
farm and not because of injuries related to the accident. The defendant also points
out that Spencer has not attended for chiropractic treatment since July 3, 2013,
and as such, it is again appropriate to conclude the pain and distress from his
soft tissue injuries have diminished dramatically over the last year or two.

[108]     In these
circumstances, the defendant agrees that Spencer should not be penalized for
his stoicism and should be commended for continuing to be actively involved in
intensive sporting activities and for working at his summer jobs, while also
noting that the only extra-curricular activity that Spencer could not continue
to pursue over the years was lacrosse. The defendant points out that Dr.
Kemble’s report from the summer of 2010 indicated that Spencer’s neck, back and
headaches should significantly improve, although he concedes that Dr. Kemble
did not go so far as to say that Spencer would recover “completely” from these
injuries. As a result, the defendant submits that Spencer suffered only minor
to moderate soft tissue injuries as a result of the accident.

Position of the Plaintiff

[109]     In these
circumstances, the plaintiff submits that an appropriate range for
non-pecuniary damages is between $140,000 and $176,500, claims $175,000, and cites
the following cases in support of this submission:

  Schenker v. Scott,
2013 BCSC 599;

  Skoda v. Kim,
[1997] B.C.J. No. 2568;

  Sekihara v. Gill,
2013 BCSC 1387; and

 Morlan v. Barrett,
2010 BCSC 1767.

[110]     In Schenker
the plaintiff suffered spinal fractures in four different areas of the spine
requiring surgery as well as significant soft tissue injuries. In that case,
the pain from her injuries interfered significantly with her active lifestyle.
The plaintiff was awarded $150,000 for non-pecuniary damages.

[111]     In Sekihara,
the plaintiff was diagnosed with early degenerative disc changes and a disc
injury, as well as soft tissue injuries, which resulted in even gentle exercise
causing pain. The plaintiff was awarded $130,000 for non-pecuniary damages.

[112]     In Skoda,
the plaintiff suffered from a cervical sprain, upper back sprain and a left hip
injury which resulted in all “normal” activity such as sitting, walking, and
reclining, being painful. Additionally, the hip injury seriously impaired the
plaintiff’s active lifestyle and most bodily movement was associated with
“debilitating pain.” The plaintiff was awarded $140,000 for non-pecuniary
damages.

[113]     In Morlan,
the plaintiff had a significant decrease in her energy level, was in constant
pain that was endurable only by “the ingestion of vast amounts of drugs” and
required psychological counselling. The plaintiff was awarded $125,000 for
non-pecuniary damages.

Position of the Defendant

[114]     The
defendant submits that $50,000 would be an appropriate award for non-pecuniary
damages.

[115]     Several
cases were cited by the defendant in support of this position. These cases
involved plaintiffs who were quite young when the relevant motor vehicle accident
occurred and were awarded damages some years later at trial. The awards in
these cases range from $30,000, which the defendant admits is inappropriately
low given the circumstances in this case, to $45,000. The cases relied on by
the defendant include:

  Nair
(Litigation guardian of) v. Cindric, 2013 BCSC 2128;

  Sahota (Guardian ad
litem) v. Ho, 2013 BCSC 639;

  Sekhon v. Nguyen,
2012 BCSC 281;

  Hahn v. Barnes,
2012 BCSC 724;

  Dutchak v. Fowler,
2010 BCSC 128;

  Fennell v. Hiebert,
2010 BCSC 824;

  T. (S.) v. K. (S.),
2010 BCSC 1564; and

  Lowen v. Kovacevic,
2005 BCSC 1520.

These authorities are helpful of course, but I bear in mind,
as the court said in Lindal, an appropriate award must be based on the
specific circumstances of the particular case.

[116]     A fair assessment
of damages is difficult in the present case because of the passage of time
since the accident, the changes in symptomology over many years, the fact that Spencer
is currently 17 years old and not yet fully grown or mature, the possible
relationship between his present physical condition and his participation in
strenuous sports such as basketball, tennis, soccer, lacrosse and football,
especially when Spencer told me he “likes physical contact.” The fact that the
medical evidence in this case is very dated has also complicated this analysis.
In these circumstances, it is no surprise the evidence and medical opinions as
to Spencer’s future physical condition are somewhat equivocal. The extent to
which Spencer’s present deficits will affect him in the future is difficult to
predict.

[117]     With the
above factors in mind, and having regard to the totality of the circumstances,
I am satisfied that because of the accident, Spencer suffered modest soft
tissue injuries, initial knee pain, headaches and anxiety. These have affected
his lifestyle to a certain degree, but have now significantly resolved.
Fortunately, they have had a relatively modest impact on his activities over
the last two years. In my view, a fair and reasonable award for non-pecuniary damages
is $70,000.

Loss of Earning
Capacity

The Possibility of Future
Income Loss

[118]     In order
to be awarded damages for a loss of earning capacity, the plaintiff must prove
there is a real and substantial possibility of a future event leading to an
income loss: Perren v. Lalari, 2010 BCCA 140, para 29, citing Tysoe
J.; Romanchych v. Vallianatos, 2010 BCCA 20, para 10.

[119]     The
plaintiff submits that the evidence establishes there is a real and substantial
possibility of a future event leading to an income loss and as a result he is
entitled to an award of damages under this head, even though he is just turning
17 and still in Grade 11.

[120]    
The defendant concedes that Spencer satisfies the threshold question,
namely that there is a real and substantial possibility of a future event
leading to an income loss. The defendant says:

…that future event is the
opportunity to take employment in a heavy physically demanding job which, on
the evidence, the plaintiff may still pursue and obtain, however may perform
with some limitations due to pain.

[121]     I agree
with the defendant that the threshold question has been met. The foundation for
this conclusion is Spencer’s testimony describing the pain he experienced after
doing physically demanding work on the farm in the summer of 2012 as well as at
the two restaurants in 2013. In addition, there is a functional capacity
evaluation performed by Mr. Vandenboer that resulted in a report dated
July 26, 2011, as well as Mr. Vandenboer’s testimony.

[122]     When Mr.
Vandenboer conducted his examination of Spencer, Spencer was 14 years old. Mr.
Vandenboer acknowledged that any future suggestions for occupations that
Spencer might be able to perform are somewhat difficult and stated,
“Mr. Land’s physical suitability for a particular line of work is not
entirely a black and white issue as he has not yet reached physical maturity.”

[123]    
Based upon the results of the functional capacity testing and Spencer’s
“reported symptom responses,” Mr. Vandenboer concluded that:

He would not be suited for jobs that require one or more the
following physical/functional occupational requirements:

1.         prolonged overhead activity;

2.         prolonged periods of static neck flexion and/or
extension; and

3.         significant levels of
body dexterity (stooping/crouching).

[124]     However,
as the defendant has properly pointed out, since being evaluated by Mr.
Vandenboer, Spencer has been employed in heavy farm labour and at restaurants
doing strenuous kitchen work, including lifting heavy drying racks above his
head. The defendant says it is clear Spencer can do significant work involving
overhead activity and prolonged periods of static neck flexion. Furthermore,
Spencer has provided no evidence as to how his future career as a police
officer may be compromised by his accident-related injuries. At the same time, while
Dr. MacKean opined that Spencer could face limitations because of pain in
heavier lifting overhead work and “construction type work,” she agreed with the
defendant that lifting 70 pound bales of hay is heavy, physical work.

[125]     Nevertheless,
the defendant acknowledges that with respect to future employment that might be
available to Spencer, he would be less capable of earning income by an
inability to do heavy construction type jobs without limitations. In these
circumstances, even though Spencer’s future is clearly not as bleak as once
predicted, as the defendant has properly acknowledged, there could be certain
job opportunities that would exceed Spencer’s physical capacity. Accordingly, I
am satisfied the plaintiff has established that there is a real and substantial
possibility of a future event leading to a loss of earning capacity.

Quantifying Potential
Future Loss

[126]     As the
parties agree that Spencer’s earning capacity has been diminished, only the
assessment of the loss is at issue. They again differ, however, on what is a
fair and reasonable assessment.

[127]     There are
two possible methods for quantifying loss of earning capacity: the earnings
approach and the capital asset approach: Perren, at para. 32. In Hardychuk
v. Johnstone, 2012 BCSC 1359, at para. 195, the court stated that “[b]oth
approaches are correct and will be more or less appropriate depending on
whether the loss in question can be quantified in a measurable way.”

[128]     The
earnings approach is generally used in cases where the evidence allows for easy
measurement, such as in cases where the plaintiff had already embarked on a
career path or had steady employment and a known rate of pay prior to the
accident.

[129]     The
capital asset approach is usually applied in situations where the uncertainty
of the plaintiff’s future renders quantification difficult or there is a lack
of past earnings. It asks whether the plaintiff’s earning capacity, as a
capital asset, has been diminished because: (a) the plaintiff has been rendered
less capable overall of earning income from all types of employment; (b) has
been rendered less marketable or attractive as an employee to future employers;
(c) has lost the ability to take advantage of job opportunities which might
otherwise have been open to him; or (d) 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 (S.C.) at para. 8. Although
quantification under this heading may be more difficult, this does not mean
that the assessment is entirely at large. The court should consider these
factors and make findings of fact as to the nature and extent of the loss of
capacity and its relation to the plaintiff’s ability to earn income: Morgan
v. Galbraith, 2013 BCCA 305 at para. 56.

[130]     Both
counsel agree that because Spencer is still in high school, has no significant
employment history, and the functional capacity report is dated, that the
capital asset approach should be employed in the present case to assess what
would be a fair and reasonable award under this head of damages.

[131]     The
challenge inherent in this assessment is to compare the plaintiff’s likely
future working life, if the accident had not occurred, and his likely working
life after the accident, “taking into account the positive and negative
vagaries of life,” must be compared: Lines v. W & D Logging Co. Ltd.,
2009 BCCA 106 at para. 57; see also Westbroek v. Brizuela, 2014 BCCA 48
at paras. 64 to 66. This comparison is not a mathematical calculation and it
must account for contingencies, both positive and negative, to recognize the
possibility that the assumptions on which the award is based may prove to be
wrong: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff’d
(1987), 49 B.C.L.R. (2d) 99 (C.A.). Furthermore, the court’s task is to assess
the plaintiff’s damages, not calculate them with mathematical precision, and
the overall fairness and reasonableness of the award must be considered: Rosvold
v. Dunlap, 2001 BCCA 1 at para. 11; Mulholland (Guardian ad litem of) v.
Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.) at para. 43.

[132]     The plaintiff
submits that an appropriate award for loss of earning capacity is $200,000,
whereas the defendant submits that $35,000 would be a fair, just and reasonable
award.

[133]     Although
loss of earning capacity is a pecuniary loss and therefore is a determination
based on the individual plaintiff, the parties have provided me with several
authorities in support of their respective positions. While I have read these
with interest, they are of limited usefulness because the future prospects of
each plaintiff are different in every case and the positive and negative
contingencies that may be relevant are never the same.

[134]     The
plaintiff relied on Schenker, Skoda, and Sekihara, all described
above, in support of his submission that a significant award under loss of
future earning capacity is justified and reasonable. However, I find that these
cases are not particularly helpful because they concern individuals whose
future prospects are far gloomier than I have found Spencer’s to be. In my
view, I find Spencer is only marginally less employable than he would have
been, but for the accident. He has demonstrated the ability to perform
physically demanding work in the last two years, and it may be his physical
capacities will improve. Even if they do not, I am not satisfied Spencer’s
earning capacity has been diminished to the extent suggested by counsel. As a
result, I am not satisfied the circumstances in this case justify an award in
the range submitted by the plaintiff.

[135]     The cases
relied on by the defendant include: Sinnott v. Boggs, 2007 BCCA 267;
Lubke v. Mattin, 2009 BCSC 709 and Sahota (Guardian ad litem of)
v. Ho, 2013 BCSC 639. I have considered these authorities as well.
However, as the court stated in Jurczak v. Mauro, 2013 BCCA 507, when it
comes to future earning capacity, “the assessment of a loss is a fact-intensive
case-specific inquiry” (para. 11).

Contingencies

[136]     I have
taken into consideration a number of contingencies in assessing Spencer’s loss
of earning capacity. These contingencies include Spencer’s intention to pursue
a relatively physically demanding career, the limitations or additional
hardships that his injuries may pose in gaining employment in that type of
career, the effect that his injuries may have on his success in his career of
choice, and the positive contingency that he may pursue a career that is not
affected at all by his injuries, as well as the contingency that as Spencer
approaches maturity, he may well not have any future physical limitations, as
evidenced by his knees now being dramatically improved.

[137]     In the
final analysis, the fundamental guiding principle, when assessing loss of
future earning capacity, is that a “final award must be fair and reasonable in
all the circumstances”: see Gregory v. Insurance Corporation of B.C.,
2011 BCCA 144. at para. 33; Jurczak, paras. 35-38.

[138]     Given the
totality of the evidence, I am satisfied a fair and reasonable assessment for loss
of future earning capacity is $50,000.

Cost of Future Care

[139]     Spencer also
seeks an award for cost of future care.

[140]    
The test for establishing a claim for the cost of future care is set out
in Milina where McLachlin J., as she then was, said at p. 84:

The test for determining the appropriate award under the
heading of cost of future care, it may be inferred, is an objective one based
on medical evidence.

These authorities establish (1)
that there must be a medical justification for claims for cost of future care;
(2) that the claims must be reasonable. … The award for cost of care should
reflect what the evidence establishes is reasonably necessary to preserve the
plaintiff’s health.

[141]    
The recent decision of the Court of Appeal in Gignac v. Rozylo,
2012 BCCA 351, is instructive with respect to this aspect of the plaintiff’s claim.
Bennett J.A., writing for the court, said:

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

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

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

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

[142]     The
plaintiff submits that the decision in Chiu v. Chiu, 2002 BCCA 618,
stands for the proposition that it is not necessary that “specific items of
cost of future care be approved by medical experts.” As a result, the plaintiff
relies on the report and evidence of Ms. Carol Talley, who is an occupational
therapist and provided a future care cost report, and the report of Geoffrey
Young, a consulting economist who calculated the present value for the items
outlined by Ms. Talley. The plaintiff submits that the award for items
necessary for Spencer’s future wellbeing should be in an amount ranging between
$153,500 and $158,800.

[143]     However, Gignac,
which was decided almost 10 years after Chiu, clearly states that it is
an error of law to not determine if there is an “evidentiary link” between a
physician’s assessment and the item the plaintiff claims will promote his or
her mental or physical health:

31.       ICBC says that the trial judge did not examine each
request and determine if there was an evidentiary link between the medical
assessment and the care recommended by the occupational therapist and
rehabilitation consultant. As Garson J.A. said in Gregory v. Insurance
Corporation of British Columbia, 2011 BCCA 144 at para. 39:

I do not consider it necessary, in
order for a plaintiff to successfully advance a future cost of care claim, that
a physician testify to the medical necessity of each and every item of care
that is claimed. But there must be some evidentiary link drawn between the
physician’s assessment of pain, disability, and recommended treatment and the
care recommended by a qualified health care professional: Aberdeen at
paras. 43, 63.

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

[144]     Following
the direction in Gignac, I must consider all of the various categories
and items sought by the plaintiff under this heading and determine if there is an
evidentiary link between the medical assessment of pain, disability, or a recommended
treatment and the care recommended by Ms. Talley.

[145]    
In analyzing the various items and categories that Ms. Talley has noted
in her report, I have considered the comments of Johnston J. in Travis v.
Kwon, 2009 BCSC 63:

109.     Claims for damages for cost of future care have
grown exponentially following the decisions of the Supreme Court of Canada in
the trilogy of decisions usually cited under Andrews v. Grand & Toy,
Alberta Ltd., [1978] 2 S.C.R. 229, [1978] 1 W.W.R. 577.

110.     While such claims are no longer confined to
catastrophic injury cases, it is useful from time to time to remind oneself
that damages for future care grew out of catastrophic injuries and were
intended to ensure, so far as possible, that a catastrophically injured
plaintiff could live as complete and independent a life as was reasonably
attainable through an award of damages.

111.     This is worth mentioning
because the passage of time has led to claims for items such as, in this case,
the present value of the future cost of a long-handed duster, long-handed
scrubber, and replacement heads for the scrubber, in cases where injuries are
nowhere near catastrophic in nature or result.

[146]     I have
approached Ms. Talley’s report and recommendations with caution because, as
with all of the other reports filed in this litigation, her report is dated. As
an example of how this affects her report, on p. 19 she predicted that “Spencer
may have difficulty maintaining a part-time job while attending school due to
his chronic pain.” This turned out not to be the case. Far from it. Spencer has
been able to work consistently at physically demanding jobs after Ms. Talley
completed her report. Consequently, Ms. Tally’s report must obviously be
read in light of Spencer’s present physical and mental condition and personal
circumstances, not as they were some years ago. An assessment for cost of
future care must also take into consideration the positive and negative
contingencies that I have already referred to.

[147]     The
plaintiff’s claim for future cost of care includes the following items.

Medication

[148]     The
recommendation that there be an award of $10,700 to cover the cost of Axert or
Relpax for the rest of Spencer’s life is not justified. Spencer and his mother
testified that he does not want to take prescription medication. Moreover, regardless
of his aversion to medication, Relpax only worked two of the three times
Spencer used it, and Axert did not work at all on the two occasions he took it.
As a result, I am not satisfied the evidence establishes the necessary medical
justification for this part of his claim for cost of future care.

[149]     There is,
however, some medical justification for an award for non-prescription
medication because Spencer says he infrequently uses Advil or Tylenol and salmon
oil and Vitamin B in an attempt to get some pain relief. I therefore agree with
the defendant’s submission that there is evidence to justify the expense
associated with non-prescription pain medication and I award $300 as a result.

Chiropractor

[150]     There is
significant medical evidence to justify ongoing chiropractic treatment for a
reasonable period of time to support Spencer’s physical and mental health in
the future.

[151]     The
difficulty I have with Ms. Talley’s report is that she suggests chiropractic treatments
should be ongoing until Spencer is age 85.

[152]     I am not
satisfied in these circumstances that it is appropriate or reasonable for Spencer
to have chiropractic treatment, as a result of these injuries, until age 85.
However, given the significant benefit Spencer has received from chiropractic
treatment, I am satisfied he should be compensated for chiropractic treatment
for a reasonably significant period of time. Using Dr. Young’s calculations,
counsel has calculated that 12 chiropractic treatments per year would result in
a present value of approximately $6,000 for the next 10 years. In these
circumstances, I find it is reasonable to award $6,000 for this item.

Physiotherapy Treatment

[153]     Although
Dr. McCollister suggested in February 2010 that “it would be reasonable to
restart physiotherapy” and Ms. Talley recommended that Spencer should have
physiotherapy treatment for the rest of his life, at a cost of approximately
$1,500 a year, Spencer testified that he does not take physiotherapy because it
is of no help to him, consistent with the fact that since June 2010 Spencer has
had only two physiotherapy sessions, August 21 and 23, 2012, when he was
working on the farm. There is insufficient medical evidence to justify an award
for physiotherapy.

Fitness Center or Gym
Membership

[154]     Given the
totality of the medical evidence and the fact Spencer will not have access to
the high school gym after graduation, I am satisfied that a gym membership is
justified by the evidence but I do not agree it should be until age 85.

[155]     In the
circumstances, based on a $230 fee for gym membership per annum, I award $2,300
for gym membership.

Kinesiology Treatment

[156]     There is
insufficient medical evidence to justify this recommendation.

Occupational Therapy

[157]     Ms. Talley
suggests an occupational therapy assessment with an initial cost of $700 while
Spencer is a student, the same cost four times in the future for assessments
when Spencer is in university, and further assessments when he is in the work
place. On this point, I am not satisfied that the evidence supports a
conclusion that this cost is medically justified or reasonable, especially when
Spencer’s future career aspirations do not suggest whether or not university is
actually in his future plans or for how long he might be enrolled in a
post-secondary institution.

Psychology

[158]     While I
accept that Spencer has suffered from stress and pain because of injuries he
received in the motor vehicle accident, there is no evidence that he required,
or sought out, any psychological counselling or treatment. Indeed, the evidence
is more consistent with a conclusion that Spencer’s anxiety is a thing of the
past. At the same time Spencer very fairly stated he has “never been sad or
depressed.” As a result, I am not satisfied there is sufficient medical
evidence to support this aspect of the claim.

Massage Therapy

[159]     The
medical evidence clearly supports massage therapy as reasonably necessary to
promote Spencer’s mental and physical health, both now and in the future. Once
again, Ms. Talley suggests that Spencer should participate in this form of
therapy until he is 85 years of age, resulting in a present value of over
$24,000. I find that it is inappropriate and unreasonable to conclude Spencer
will need massage therapy for that length of time as a result of the accident,
partly because I am satisfied he has been improving on a fairly regular basis
over the last two to three years. Using Mr. Young’s cumulative continuing
factor, counsel has calculated that 10 years of regular massage therapy to age 27
would result in a present value of approximately $8,000. I will therefore order
that there be an award for massage therapy in the amount of $8,000.

Tutoring and Tutoring
Assessment

[160]     There is
insufficient evidence that Spencer needs a tutoring “assessment” as a result of
the accident.

[161]     I am also not
satisfied that the evidence justifies a conclusion that tutoring is necessary
for Spencer. I find that the primary reason Spencer has not achieved academic
success is because of his busy sports schedule and his lack of motivation,
neither of which has anything to do with the accident. This is why Spencer has
stopped playing sports for the time being and has focused on his studies. He
expressed confidence that he will be successful in this endeavour and I applaud
his present dedication to school.

[162]     Therefore
an award of $18,000 for further tutoring, including post-secondary tutoring, is
neither reasonable nor justified.

Acupuncture

[163]     There is
no medical evidence to support the conclusion that acupuncture is a justifiable
and reasonable future care expense. Since Spencer has not received any
acupuncture treatment in the past, there is no medical evidence that it would
be beneficial, and Spencer has not suggested he would participate in such
treatment.

Dental

[164]     I am not
satisfied there is sufficient evidence to justify a claim for any dental costs.

Psycho-Vocational
Assessment

[165]     Ms. Talley
suggests a psycho-vocational assessment to help Spencer determine “his career
direction,” and to “assist him with matching up his academic abilities with his
physical abilities to choose the most appropriate career path for him.” Leaving
aside the fact that there is insufficient medical evidence to support this as a
reasonable and justifiable cost of future care, Spencer has testified that his
future career plans are to become a police officer. As a result, in my view
there is no justification for the $15,000 outlined by Ms. Talley for
a psycho‑vocational assessment.

Equipment for Positioning and
School/Vocational

[166]     Under this
heading, Ms. Talley suggests an ergonomic chair, a special computer desk,
wireless keyboard and mouse, a docking station, a Mac laptop and a copy holder.

[167]     There is
no question in my mind that the evidence establishes that a proper ergonomic
chair would promote Spencer’s mental and physical health. I agree with Ms. Talley
that a single expenditure of $730 is reasonable and appropriate. I am also
prepared to accept that a computer desk, tailored to Spencer’s height and back
and neck issues, is medically justified and reasonable. I award $500 for a
computer desk.

[168]     I am not
satisfied, however, that the laptop and accessories are reasonably necessary.
In fact, Spencer has received a computer in the recent past as a result of
negotiations between the parties.

Home Exercise Equipment

[169]     While
Spencer has acknowledged he gets most of his exercise from activities and working
out at the school gym, and despite awarding him a gym membership under this
head of damages, I am of the view that purchasing an exercise bike, weights and
a floor mat to allow him to exercise at home may very well accelerate his continuing
recovery. I award $1,500 for this equipment.

Transportation

[170]     Ms. Talley
suggested approximately $3,300 for mileage to drive Spencer to tutoring and physiotherapy,
as well as to the chiropractor and gym.

[171]     While I am
satisfied it is reasonably necessary that Spencer attend a gym and a
chiropractor, how often he would attend and what distance would be involved is
quite speculative. I am not satisfied that Ms. Talley’s mileage
calculation for this expenditure is reasonable. The defendant agrees that the
evidence supports “some provision” for transportation costs and suggests $500
as a reasonable amount for future transportation costs. I agree with the
defendant and so order.

Future Considerations

[172]     The final
category outlined by Ms. Talley is “future considerations.” This heading involves
a possible root canal and a $1,000 vehicle upgrade every few years so Spencer can
purchase a motor vehicle with heated seats. Ms. Talley says that, as a result
of her investigation, it costs an additional $1,000 to upgrade a new vehicle to
include heated seats. The evidence does not support a conclusion that either of
these items is medically justified or that these expenses are reasonably
necessary to promote Spencer’s mental and physical health in the future.

Conclusion for Cost of
Future Care

[173]    
Therefore, the final award for cost of future care will be as follows:

In-Trust Claim

[174]    
Both parties agree that the decision in Bystedt (Guardian ad litem
of) v. Hay, 2001 BCSC 1735, sets out the factors that should be considered
in assessing an in‑trust claim:

180.     From a review of these authorities one can construct
a summary of the factors to be considered in the assessment of "in trust"
claims:

(a)        the
services provided must replace services necessary for the care of the plaintiff
as a result of a plaintiff’s injuries;

(b)        if the
services are rendered by a family member, they must be over and above what
would be expected from the family relationship (here, the normal care of an
uninjured child);

(c)        the
maximum value of such services is the cost of obtaining the services outside
the family;

(d)        where
the opportunity cost to the care-giving family member is lower than the cost of
obtaining the services independently, the court will award the lower amount;

(e)        quantification
should reflect the true and reasonable value of the services performed taking
into account the time, quality and nature of those services. In this regard,
the damages should reflect the wage of a substitute caregiver. There should not
be a discounting or undervaluation of such services because of the nature of
the relationship; and,

(f)         the family members providing
the services need not forego other income and there need not be payment for the
services rendered.

[175]     I accept
without hesitation that over the last nine years Spencer’s mother has been
devoted to providing extra care for Spencer and is a dedicated and loving
mother.

[176]     As a
result, Ms. Land has personally taken Spencer to many different appointments
with medical specialists, chiropractors and other treatment providers. The
plaintiff submits that all of this travel and appointment time has detracted “from
her hours available to work or to train for new career opportunities” and she has
therefore suffered an economic loss. On this particular point, even though Bystedt
states that family members providing services do not have to forego other
income in order to make an in-trust claim, I cannot find Ms. Land has suffered
a pecuniary loss. For example, in the early days of Spencer’s convalescence in
2005, Ms. Land was able to drive to Victoria to take her aromatherapy
course.

[177]     Moreover,
I agree with the defendant that transportation costs have been included under the
claim for special costs and there is no need to compensate Ms. Land
pursuant to an in-trust claim for these automobile expenses.

[178]     The
plaintiff also submits that because Ms. Land is a single mother with limited
income, she has been unable to fund massage therapy for Spencer over the years
and has performed it herself on an ongoing basis. The plaintiff submits that
the evidence is sufficient for me to conclude that for approximately eight
years after the accident, Ms. Land performed “a few massages per week” which
the plaintiff says “equates” to approximately 150 massages per year for a
period of eight years. The plaintiff says that over the last nine months his
girlfriend has been giving him some massages and Ms. Land has only given
approximately 45 massages during this period. The plaintiff says that each
massage should be valued at $80 and the value of 195 massages provided by Ms.
Land is $99,600.

[179]     However, the
evidence does not establish that Spencer would have received professional massage
treatment at the rate of “a few massages per week,” thereby undermining the
costs analysis as presented by the plaintiff. Additionally, I am not satisfied
it is fair or reasonable to conclude that Ms. Land provided the equivalent
of professional massage services to Spencer. Instead, I conclude that she rendered
assistance and massages to Spencer which one would expect from a concerned and
caring mother.

[180]     I am
prepared, however, given the factors outlined in Bystedt, to conclude that
there should be some quantification under this head of damages that reflects a
reasonable value of the services performed by Ms. Land, taking into account
“the time, quality and nature of those services.”

[181]     On this
point the defendant submits that if the court is “inclined to make an award
under this head of damage, it should be a modest one” and suggests the sum of
$2,000 would be appropriate as opposed to the $25,000 the plaintiff claims for
an in-trust award.

[182]     Given the
totality of the circumstances, I am satisfied a fair and reasonable award under
this heading would be $5,000.

Special Damages

[183]     The
defendant submits that there should be an award of special damages in the
amount of $3,459.09. The plaintiff does not dispute the accuracy of this
calculation. There will be an award for special damages in this amount.

Summary

[184]    
In summary, I award the following under the various heads of damages:

Costs

[185]    
Unless there are factors of which I am unaware, the plaintiff is
entitled to his costs and disbursements.

                    “B.D.
MacKenzie, J.”                   

The
Honourable Mr. Justice B.D. MacKenzie