IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140528

Docket: M122017

Registry:
Vancouver

Between:

Ivan Sergeevich
Pichugin

Plaintiff

And

Gabriela Ileana
Stoian

Defendant

Before:
The Honourable Mr. Justice Skolrood

Reasons for Judgment

Introduction

[1]            
The plaintiff, Ivan Pichugin, claims damages for injuries suffered in a
motor vehicle accident that occurred on July 24, 2010 (the “accident”).

[2]            
At approximately midnight that evening, Mr. Pichugin’s vehicle was
rear-ended by a vehicle driven by the defendant while he was stopped at a red
light. The accident occurred at the intersection of West Cordova Street and
Thurlow Street in Vancouver.

[3]            
Liability for the accident is admitted.

Background

[4]            
Mr. Pichugin was born on July 11, 1956 in the Ukraine. At the time of trial
he was 57 years old.

[5]            
From an early age Mr. Pichugin had an interest in the sea. From
1973-1979 he attended marine school and, on completion, he moved to Latvia
where he joined the Latvia Shipping Company.

[6]            
Mr. Pichugin started as a junior officer but over time worked his way up
through the ranks and in 1990 he became a ship captain, typically working on
tanker ships. As captain, Mr. Pichugin said that he was responsible for all
aspects of the ship’s operation.

[7]            
Mr. Pichugin married his wife Svetlana in 1981. They have two children: 
Vladimir born in 1982 and Anastasia born in 1984.

[8]            
In his job as a ship captain, Mr. Pichugin was often at sea for long
stretches, typically four to six months at a time. While he was away, Mrs.
Pichugin would remain behind and care for the children.

[9]            
In 1991, the Soviet Union collapsed and Mr. Pichugin says he started
working for shipping companies all over the world.

[10]        
In 2001, the family moved to Canada. Mr. Pichugin says that there were
limited opportunities for him in Latvia due to his Ukrainian heritage. He
thought the opportunities would be better in Canada. Mrs. Pichugin testified
that they moved to Canada to make a better life for their children.

[11]        
After arriving in Canada it was difficult for Mr. Pichugin to find
regular employment. Initially he got work as an insurance salesman, then as a
marine surveyor. In 2005, he completed the necessary examinations and obtained
his master marine certificate.

[12]        
Once he had his certificate, he began working as a captain on charter
boats operating out of Vancouver Harbour. This typically involved taking groups
of people for pleasure cruises of four to five hours duration.

[13]        
In 2007, Mr. Pichugin was hired by the British Columbia Institute of
Technology (“BCIT”) as an instructor of nautical science. This involves
teaching practical courses relevant to the shipping industry, including marine
emergency procedures, ship stability, use of ship electronics, international
navigation rules and radio communications.

[14]        
Some of the courses, for example the marine emergency procedures course,
involve hands-on training and are very physical, whereas other courses are more
classroom based.

[15]        
Mr. Pichugin was involved in a previous motor vehicle accident in 2006
when he was also rear-ended. As a result of that accident, he suffered pain in
his neck and back and strong headaches. He says that the symptoms lasted for
about a year with some occasional ongoing problems. The symptoms had largely
resolved by the date of the July 24, 2010 accident.

[16]        
As noted, the accident occurred at about midnight. Mr. Pichugin had
taken a boat out for a harbour cruise for the Celebration of Light fireworks
show. The boat returned to the dock in Coal Harbour between 10:45 and 11:00 pm.

[17]        
After locking up the boat, Mr. Pichugin got in his car to drive home to
New Westminster. Normally he would drive down Georgia Street but the traffic
was very heavy that evening as people were trying to get home from the firework
show, so he took side streets.

[18]        
Mr. Pichugin testified that as he approached the intersection, the light
was red. There was one car stopped in front of him. He stopped his car about
1.5 meters behind that car. After coming to a stop, he was struck from behind
by the defendant’s vehicle.

[19]        
Mr. Pichugin says that he did not see the other vehicle approaching and
so did not have time to brace himself. However, the impact was relatively minor
and it did not cause his body to strike any part of his car.

[20]        
There was minimal damage to his car. In cross-examination, he agreed
that the cost of repair to his car was approximately $750.00.

[21]        
Mr. Pichugin says that he got out of his car and exchanged information
with the other driver. They did this quite quickly as there was still a lot of
traffic around and people were honking at them to move.

[22]        
The defendant driver of the other vehicle, Ms. Stoian, also testified
about the accident. She said that on July 24, 2010 she was driving home to
North Burnaby from the firework show. She was travelling with her sister, who
was in the passenger seat, and her daughter, who was in the rear seat.

[23]        
She was driving east along Cordova Street when she came to a red light. She
says she stopped at the red light behind another car. After stopping, she says
she became distracted by something, likely her phone, as a result of which she
took her foot off the brake, inched forward and bumped the back of the car in
front.

[24]        
According to Ms. Stoian, she put her car in park and got out to speak
with the other driver. They both looked at the cars and did not see any damage.

[25]        
Ms. Stoian did not have her car repaired. She says the car already had a
number of scratches on it and that there was no new damage to repair.

[26]        
Mr. Pichugin testified that he did not feel any immediate symptoms at
the scene and that he was able to drive home, which took about 30 minutes. However,
the next day he felt pain in his upper and lower back and in his neck. He also
had a strong headache.

[27]        
These symptoms continued for approximately three weeks until he started
massage therapy, which helped to ease the pain.

[28]        
After three weeks, he returned to work on the charter boats. He said he
had difficulty doing the work but the owners wanted him back. He says he got
the boat engineer and the crew to do much of the work for him.

[29]        
In the week following the accident, he returned to work at BCIT. He was
scheduled to teach the marine emergency course that week and there was no one
else able to do it. After teaching that course, he went on short term disability
for one and a half months.

[30]        
Mr. Pichugin says that he continued to experience back and neck pain as
well as headaches throughout the fall of 2010, although his condition improved
from right after the accident as a result of massage therapy and physiotherapy.
He describes his condition as having some good days and some bad days. On the
good days, he would still experience some pain but was generally able to
function.

[31]        
Mr. Pichugin missed five or six charter boat shifts due to the pain, including
one long cruise to Victoria.

[32]        
Throughout 2011 his condition continued to improve to the point where,
by the fall of 2012, he described his condition as “much better”.

[33]        
In July of 2012, Mr. Pichugin suffered a heart attack while teaching at
BCIT. An ambulance was called and he was taken to St. Paul’s Hospital. Mr.
Pichugin says that he was largely recovered within a month of the heart attack.

[34]        
He says that after a month, there were no restrictions on what he was
able to do. However, the heart attack caused him to assess how hard he was
working and he decided to quit his job captaining the charter boats. He felt
that by working two jobs, he was pushing himself too hard. He would often start
work at BCIT at 8:30 am and then, if he had a charter that evening, he would
not get home until 11:30 pm.

[35]        
When questioned about whether his decision to quit the charter boats was
related in any way to the accident, Mr. Pichugin said that he likely would have
quit regardless of the accident because of his heart attack and the fact that
he was working too hard. He also said that after quitting the charter boats, he
had more good days than bad in terms of his physical condition.

[36]        
Later in his evidence, in response to questions from his counsel, Mr.
Pichugin said again that he left the charter boats because he was pushing
himself too much, although this time he added that the long hours were
affecting his back and neck.

[37]        
Mrs. Pichugin testified that even prior to the heart attack, she was
encouraging Mr. Pichugin to give up the charter boats in order to spend more
time at home.

[38]        
Following his recovery from the heart attack, in the second half of
2012, Mr. Pichugin undertook some more massage therapy which he says helped relieve
his pain considerably. After about one and a half months of therapy he stopped
and never went back. He says that he would return for further treatment in the
future if necessary but doesn’t need any treatment right now.

[39]        
Mr. Pichugin testified that from that point on, he felt much better and
only had minor problems from time to time. He says that his condition is about
the same today in that he experiences neck and back pain from time to time,
perhaps once a month, usually associated with physical activity. He says that
the headaches have largely disappeared. He has had no treatment for his
symptoms since his last round of massage therapy in November 2012.

[40]        
He has continued with his employment at BCIT, although he says that
after the accident he requested that he not teach the more physically demanding
courses but rather that he do more classroom teaching. He says that he does
teach the more physical courses when necessary, for example when there is no
other instructor available to do so. There was no evidence that Mr. Pichugin’s employment
with BCIT is in jeopardy because of this shift in his teaching
responsibilities.

[41]        
Apart from the pain issues discussed above, Mr. Pichugin’s other
complaint arising out of the accident is a persistent ringing noise in his
ears, a condition known as tinnitus. He says that he first started experiencing
the ringing two to three days after the accident. He describes the noise as
similar to what one would hear if they put their ear to a sea shell.

[42]        
Mr. Pichugin sought treatment for this condition and was prescribed
hearing aids designed to filter out the noise. This was unsuccessful and he
says he now just lives with the condition.

[43]        
The tinnitus does not cause him problems in the classroom where there is
other surrounding noise but it bothers him at night, often causing difficulty
sleeping.

[44]        
In terms of his activities and lifestyle, Mr. Piguchin was not terribly
active prior to the accident, no doubt due in large part to his heavy work
schedule. He testified that he enjoys photography, in particular walking and
taking photographs. He also enjoys building model ships. He likes to help his
wife with chores around their home, primarily vacuuming, and with grocery
shopping.

[45]        
He says that since the accident, he is able to do less around the house.
For example, his wife now does most of the vacuuming. He again said that he
experiences symptoms about once per month, typically associated with pushing,
pulling or lifting activities.

[46]        
However, Mr. Pichugin agreed in cross-examination that since his heart
attack, he is more physically active than he was prior to the accident. For
example, he tries to walk 30-40 minutes per day, he stretches and occasionally
uses weights. This increase in activity was on the recommendation of his doctor
and is directed at improving his cardiac health.

[47]        
Mrs. Pichugin testified about her husband’s condition and generally
confirmed his evidence about the nature and duration of his symptoms.

[48]        
She said that prior to the accident, Mr. Pichugin liked to help her
around the house and that he was responsible for vacuuming. She said that now
she tries to vacuum during the week so that he doesn’t have to do it when he is
home on the weekends. She also does more of the grocery shopping by herself to
save him from having to lift things.

[49]        
Mrs. Pichugin testified that she also does more of the driving now. She
said that they used to enjoy driving around Vancouver but they don’t do that as
much anymore.

[50]        
Evidence was also provided by Mr. Daniel Damian, who works with Mr.
Pichugin as an instructor at BCIT in the nautical science program. Essentially,
Mr. Damian confirmed that many of the practical courses taught in the program
involve physical requirements on the part of the instructors. He also testified
that there are only two instructors at BCIT who have experience on tankers, he
and Mr. Pichugin. As a result, they are the only ones able to teach those
courses.

[51]        
Mr. Damian had little to say about Mr. Pichugin’s condition after the
accident other than that Mr. Pichugin told him at one point after the accident
that he had a stiff neck.

Medical Evidence

[52]        
Mr. Pichugin relies on the evidence of three doctors:

a)    Dr. Vorobeychik,
his family physician;

b)    Dr. Brooks, a
specialist in disability medicine and occupational medicine; and

c)     Dr.
Longridge, an expert in otology.

Dr. Vorobeychik

[53]        
Dr. Vorobeychik’s evidence is set out in a report dated October 14,
2013.

[54]        
She first saw Mr. Pichugin after the accident on July 28, 2010. He
attended at her office complaining of neck and back pain. On examination, Dr. Vorobeychik
noted that Mr. Pichugin was tender in the neck and upper and mid back and that
he had reduced range of motion in his cervical spine. She advised him to take
anti-inflammatory medications and to start physiotherapy.

[55]        
Dr. Vorobeychik’s report then documents Mr. Pichugin’s visits to her
office through until October of 2013. From July 2010 to June 2011, Mr. Pichugin
attended Dr. Vorobeychik’s office 12 times, consistently complaining of neck
and back pain and headaches.

[56]        
From June 2011 to October 2013, the visits for reasons related to the
accident were less frequent. He was seen for symptoms relating to the accident
twice in November 2011 and once in January 2012, following which he was not
seen again for accident-related symptoms until September 30, 2012 and then again
October 2, 2013.

[57]        
In concluding her report, Dr. Vorobeychik opines that:

Mr. Pichugin was involved in a
motor vehicle accident on July 24, 2010, as a result of which he sustained soft
tissue injury to his neck and back, and developed tinnitus. His neck and back
symptoms mostly improved by now, although he still complaints [sic] about neck
and back spasms, especially after prolonged sitting or physical exertion. His
tinnitus plateaued and an improvement is unlikely. The ringing sensation is
likely the source of insomnia and a possible cause of headaches.

Dr. Brooks

[58]        
Dr. Brooks examined Mr. Pichugin on July 2, 2013 at the request of Mr.
Pichugin’s counsel, and his findings are set out in a report dated September 16,
2013 that was entered into evidence.

[59]        
It is Dr. Brooks’ opinion that Mr. Pichugin suffers from chronic back,
neck and shoulder pain resulting from soft tissue injuries suffered in the
accident. Specifically, he diagnosed Mr. Pichugin as suffering from chronic
myofascial pain syndrome in his back, neck and trapezius region. He also notes
that Mr. Pichugin has developed persistent tinnitus.

[60]        
It was Dr. Brooks’ view that Mr. Pichugin would benefit from a more
aggressive treatment plan, specifically physiotherapy combined with
intramuscular (IMS) needle therapy.

[61]        
It is interesting to note that in his testimony, Dr. Brooks
characterized Mr. Pichugin’s pain symptoms as more severe than did Mr. Pichugin
himself. According to Dr. Brooks, Mr. Pichugin is a stoic individual who likely
underreported his symptoms.

Dr. Longridge

[62]        
Dr. Longridge examined Mr. Pichugin on August 9, 2011 and the results of
his examination are set out in a report dated September 14, 2011 that was
entered into evidence.

[63]        
In his evidence, Dr. Longridge noted that the severity of any tinnitus
condition is largely dependent upon the self-report of the particular patient
because studies have generally been unable to measure the sound reliably. He
also indicated that, typically, tinnitus is usually at its worst when it first
comes on and then will improve for a year or so, after which it is likely to
plateau and remain permanently.

[64]        
It is Dr. Longridge’s opinion that Mr. Pichugin’s tinnitus was most
likely caused by the accident. He bases this opinion on the fact that the
tinnitus first occurred shortly following the accident, that there were no
prior symptoms and that there is no other satisfactory explanation.

[65]        
I would note that the defendant sought to tender a report ostensibly in response
to Dr. Longridge’s report, however I ruled the report inadmissible on the basis
that it was not truly responsive and, in any event, it failed in numerous ways
to comply with the requirements of Rules 11-2 and 11-6 of the Supreme Court
Civil Rules.

Analysis

Findings of Fact as to Mr. Pichugin’s Condition

[66]        
I find on the evidence that Mr. Pichugin suffered soft tissue injuries
to his neck and back as a result of the accident. Those injuries caused him
pain and discomfort for approximately one and a half years after the accident
but he improved steadily and his symptoms were largely resolved by the fall of
2012. However, I accept that he continues to experience periodic pain and
discomfort in his neck and back, of relatively minor severity, largely related
to physical activity.

[67]        
With respect to Mr. Pichugin’s tinnitus, he relies on the opinion of Dr.
Longridge that the condition was caused by the accident.

[68]        
The defendant challenges that opinion on the ground that it is based
simply on the proximity in time between the accident and the onset of Mr.
Pichugin’s condition. She also submits that the article relied on by Dr.
Longridge in support of his opinion that a whiplash injury can result in
tinnitus is of little assistance because the sample group studied for the
purposes of the paper comprised people who have suffered from tinnitus for a
longer period of time than Mr. Pichugin and because the paper does not purport
to establish a causal relationship between whiplash and tinnitus, but rather
assumes such a relationship (see R.L. Folmer & S.E. Greist, “Chronic
Tinnitus Resulting From Head or Neck Injuries” (2003) 113 Laryngoscope 821).

[69]        
In cross-examination, Dr. Longridge agreed that the patient population
studied in the paper involved people who had suffered tinnitus for longer
periods of time but he disagreed that the paper did not specifically address
the issue of causation. As he put it, the paper and the underlying study gave
scientific support to what physicians had previously known anecdotally, that
being the causal relationship of whiplash type injuries to tinnitus.

[70]        
It was also put to Dr. Longridge in cross-examination that tinnitus
might also be caused by conditions such as diabetes and hypertension. Dr.
Longridge agreed that it was possible, however he noted that such conditions
typically do not result in a sudden onset of tinnitus as occurred with Mr.
Pichugin.

[71]        
I am satisfied that Mr. Pichugin’s tinnitus was caused by the accident. Dr.
Longridge’s opinion to this effect is supported by the scientific literature as
reflected in the Folmer and Greist paper. Even absent the findings in that
paper, Dr. Longridge noted again that physicians have long recognized that
whiplash can cause tinnitus. The defendant has not established any other
likely, or even possible, cause that would serve to undermine Dr. Longridge’s
opinion.

[72]        
In terms of the impact of his condition on his activities and lifestyle,
Mr. Pichugin testified that he is less able to help his wife with things like
vacuuming and grocery shopping. However, it was also clear from the evidence that
overall Mr. Pichugin is more active than he was prior to the accident as he has
increased his activity level following his heart attack.

[73]        
With respect to the tinnitus, he testified that while it sometimes
causes him difficulty in getting to sleep, once he is asleep it does not
interfere with the quality of his sleep. Moreover, he was unable to say with
any degree of certainty how much sleep he loses as a result of the condition.
Apart from some disruption while reading, there was no evidence that the condition
otherwise interferes with his work or his recreational activities.

Agreed Damages

[74]        
The parties agree that Mr. Pichugin is entitled to recover special
damages in the amount of $3,755.00 and damages for past wage loss in the amount
of $3,932.00 (gross). The parties agreed at trial that this latter amount will
be reduced by 25% for income tax purposes, resulting in a net award for past
wage loss of $2,949.00.

[75]        
The past wage loss amount is comprised of wages lost due to a number of
missed charter boat trips as well as the difference in what Mr. Pichugin
received in short term disability benefits from BCIT compared to what his
normal salary would have been.

Non-Pecuniary Damages

[76]        
Mr. Pichugin submits that an award of $60,000 in non-pecuniary damages
is appropriate in this case. He cites Yang v. Chan, 2012 BCSC 1753 and Maddex
v. Sigouin, 2013 BCSC 1338, in support of this position. Both cases involve
claims by plaintiffs who suffered from tinnitus and various soft tissue
injuries following a motor vehicle accident.

[77]        
In Yang, the plaintiff was 58 years old at the time of trial. As
a result of the accident, he suffered acute pain from his soft tissue injuries
that affected both his personal and working life for six months following the
accident and intermittently thereafter. He also suffered from tinnitus, which
the court found was caused by the accident, and which the evidence established
was of moderate severity, meaning that it is capable of significantly diminishing
the plaintiff’s enjoyment of life.

[78]        
The court awarded $60,000 in non-pecuniary damages.

[79]        
In Maddex, the court found that as a result of a motor vehicle
accident, the plaintiff suffered minor soft tissue injuries that resolved in
short order, some psychological distress that required counselling and ongoing
tinnitus. With respect to the tinnitus, the court found that it caused the
plaintiff some discomfort in his daily life, particularly with respect to his
ability to sleep and to listen to television or music, but that there was no
meaningful interference with his work or recreational and social activities.

[80]        
The court awarded $42,000 in non-pecuniary damages.

[81]        
The defendant submits that an award of $20,000 – $25,000 is appropriate
based solely on Mr. Pichugin’s soft tissue injuries. Alternatively, if the
court finds that the tinnitus was caused by the accident, which I have found,
the defendant proposes damages in the range of $30,000 – $35,000.

[82]        
The defendant also relies on Yang and Maddex as useful
authorities that consider the combined effect of soft tissue injuries and
ongoing tinnitus.

[83]        
Awards of non-pecuniary damages in other cases provide a useful guide to
the court, however the specific circumstances of each individual plaintiff must
be considered as any award of damages is intended to compensate for the pain
and suffering experienced by that person. Moreover, the compensation award must
be fair and reasonable to both parties; see Miller v. Lawlor, 2012 BCSC
387 at para. 109 citing Andrews v. Grand & Toy Alberta Ltd., [1978]
2 S.C.R. 229 and [Trites v. Penner, 2010 BCSC 882 at paras. 188 – 189].

[84]        
The factors that the court must consider when assessing non-pecuniary
damages are well known and have been set out in a number of cases, including by
the Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34 at para. 46. I
have taken those factors into consideration.

[85]        
In my view, the severity and effects of Mr. Pichugin’s tinnitus are less
than what was experienced by the plaintiff in Yang and more in line with
the condition suffered by the plaintiff in Maddex. However, Mr.
Pichugin’s soft tissue injuries were more severe than those of the plaintiff in
Maddex. Taking all of the circumstances into account, I find that an
appropriate award of non-pecuniary damages is $48,000.

Loss of Earning Capacity

[86]        
The principles governing the assessment of a claim for loss of future
earning capacity are similarly well established. For example, in Morgan v.
Galbraith, 2013 BCCA 305, the Court of Appeal noted that a plaintiff must establish
a “real and substantial possibility” that his or her earning capacity has been
impaired (para. 53).

[87]        
The issue of causation is also relevant. As acknowledged by counsel for
Mr. Pichugin, a plaintiff must establish causation both for an injury and for
the resulting loss. This principle was stated succinctly by Mr. Justice Voith
in Brewster v. Li, 2013 BCSC 774 at para. 80:

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

[88]        
It is not necessary for a plaintiff to establish that the injury was the
sole cause of the loss, only that it was a cause. Once causation is
established, the defendant is liable for all of the losses flowing from the
injury (Brewster at para. 82).

[89]        
In the case at bar, I have found that the accident caused Mr. Pichugin’s
injuries. The issue therefore is whether those injuries have in turn caused a
loss of earning capacity. In the words of the Court of Appeal in Morgan, has
Mr. Pichugin established a real and substantial possibility that his earning
capacity has been impaired?

[90]        
Mr. Pichugin submits that, but for the injuries sustained in the accident
and the resulting myofascial pain syndrome and ongoing tinnitus, he would not
have given up his work captaining the charter boats. He submits that prior to
the accident, he was able to work at that job along with his work at BCIT
without limitation or difficulty. While acknowledging that he returned to working
on the charter boats after the accident and up until the time of his heart
attack in July of 2012, he submits that ultimately it was the effects of his
injuries from the accident that caused him to quit working on the charter boats.

[91]        
Mr. Pichugin claims damages in the range of $60,000 – $75,000 based on
the assumption that he would have continued to work on the charter boats until
age 65, with some adjustment for the negative contingency that he may not have
continued to work both jobs to age 65.

[92]        
Mr. Pichugin relies on the evidence of Dr. Brooks who opined that due to
his condition, Mr. Pichugin does not fully meet the requirements for the
position of ship’s master according to the National Occupational Classification
(NOC). According to Dr. Brooks, Mr. Pichugin expressed particular concern about
the possibility of having to assume awkward positions during potential onboard
emergencies.

[93]        
The problem with Dr. Brooks’ opinion on this point, and with Mr.
Pichugin’s claim generally for loss of earning capacity, is that it does not
accord with Mr. Pichugin’s own evidence.

[94]        
Mr. Pichugin testified that after the first few weeks following the
accident, he was able to return to working on the charter boats with no real
limitations or restrictions.

[95]        
This is supported by the fact that in the two years after the accident,
there was no marked decrease in the number of hours worked by Mr. Pichugin on
the charter boats.

[96]        
The defendant provided the following comparative analysis of hours
worked by Mr. Pichugin for the period of March 15 to July 15, in each of the
years 2010, 2011 and 2012, taken from his pay stubs:

2010   124 hours
2011   163 hours
2012   120 hours

[97]        
As can be seen, 2011, the year following the accident, was his busiest
year, at least in the months of March to July.

[98]        
A comparison of the September 15 to December 15 period in the years
2009, 2010 and 2011 shows a similar consistency in the hours worked each year.

[99]        
Apart from stating that, in reference to his pain, he has more good days
than bad since quitting his job on the charter boats, Mr. Pichugin did not
testify to any problems or limitations associated with his work on the boats.

[100]     Further,
he stated candidly in his direct evidence that he would likely have quit the
charter boats regardless of the accident due to his heart attack and his desire
to spend more time with his family. This evidence was consistent with Mrs.
Pichugin’s evidence that she and their children had been asking him to quit the
boats for some time.

[101]     On all of
the evidence, I find that Mr. Pichugin’s decision to stop working as a captain
on the charter boats was the result of his heart attack in July 2012 and the
desire to work less and spend more time with his family. Any loss of income
associated with that decision was not caused by the accident.

[102]     Mr.
Pichugin did testify that if he had his preference, he would choose working as
a captain on the charter boats over being an instructor at BCIT, given his
affinity for the sea. However, he acknowledged that he could not earn
sufficient income to support his family solely as a charter boat captain. This
is consistent with the finding that he decided to limit himself to one job, and
that he made the practical decision to choose the job that paid the most and
better enabled him to support his family.

[103]     I find
therefore that Mr. Pichugin has not established that he is entitled to an award
of damages for loss of earning capacity.

Cost of Future Care

[104]     Mr.
Pichugin seeks an award of $2,000 for the cost of future care. This is based on
Dr. Brooks’ recommendation that Mr. Pichugin would benefit from 24 – 30
physiotherapy treatments, which would include IMS therapy, plus 10 – 12
sessions of Pilates. Dr. Brooks estimated the cost of the physiotherapy at $50 –
$60 per session and the Pilates at $50 per session.

[105]     The
defendant submits that Mr. Pichugin has not established that any award for
future care costs is warranted. He notes that while Dr. Brooks made his
recommendations in his report dated September 13, 2013, Mr. Pichugin has taken
no steps to follow up on the recommendations and pursue treatment. The
defendant points as well to Mr. Pichugin’s own evidence that his ongoing
symptoms occur only periodically, that they are minor in nature and that he
deals with them by stretching. It is noteworthy on this point that Mr. Pichugin
has not had any treatment for his symptoms since November of 2012.

[106]     I agree
with the defendant’s position and I decline to award damages for the cost of
future care.

Summary

[107]     In
summary, Mr. Pichugin is entitled to the following:

[108]    
Unless there are circumstances of which I am unaware, Mr. Pichugin is
entitled to his costs at Scale B.

“Skolrood
J.”