IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140626

Docket: M132531

Registry:
New Westminster

Between:

Hanif
Jiwani

Plaintiff

And

Crystal-Ann
Borody and Philip Campbell

Defendants

–
and –

Docket:
M133857
Registry: New Westminster

Between:

Hanif
Jiwani

Plaintiff

And

Winnie
Pang

Defendant

–
and –

Docket:
M139147
Registry: New Westminster

Between:

Hanif
Jiwani

Plaintiff

And

Aalia
Khan

Defendant

–
and –

Docket: M139149
Registry: New Westminster

Between:

Hanif
Jiwani

Plaintiff

And

Joan
Cathrine Schibild, also known as
Joan Catherine Schibild, and Marc Ira White

Defendants

Before:
The Honourable Mr. Justice Sigurdson

Reasons for Judgment

Introduction

[1]            
The plaintiff, Hanif Jiwani, a 52-year old single man, was involved in
four motor vehicle accidents for which the defendants admit liability.  The
first and most serious accident was on February 7, 2009.  The other accidents
were on April 19, 2009, July 24, 2010, and May 29, 2011.  The parties agree that
there is no need to apportion damages among the accidents.

[2]            
The plaintiff, as a result of the accidents, complained of injuries to
his neck and headaches, but mainly lower back pain radiating into his left leg
and causing sleep disturbance.  His neck pain and headaches resolved by
approximately six months from the first accident, although he says the lower
back pain persists.  The defendants dispute that the plaintiff’s lower back
pain persists, and alternatively suggest that it is due to a pre-existing
degenerative problem.

[3]            
At the time of the February 2009 accident, the plaintiff was employed as
a car salesman for West Coast Toyota where he had worked since about 2003.  In
July 2009, about five months after that accident, the plaintiff was terminated
from this employment for not meeting the minimum sales requirements of the
dealership for three consecutive months.  The plaintiff blames his poor work
performance on his injuries.  After a period of unemployment, the plaintiff
became a licensed realtor.  He has attempted to work as a realtor up to the
date of trial.

[4]            
The plaintiff claims general damages, past loss of income, loss of
future earning capacity, damages for cost of future care, cost of future
housekeeping, and special damages.

[5]            
The defendants take the position that the only motor vehicle accident of
significance was the first, in February 2009, and that the other accidents were
minimal or of no significant consequence.  The defendants’ position is that the
plaintiff’s evidence lacks credibility, that his injuries are all “subjective
soft tissue in nature”, and that his emotional upset is far short of any
psychiatric or psychological diagnosis and is likely attributable to other
causes than the accidents.  The defendants say that the plaintiff’s credibility
is a central issue and that his reports of pain, in the absence of objective
signs of injury, should not be taken at face value.  The defendants further submit
that the plaintiff has long recovered from any injuries arising from the
accident.

The Parties’ Positions

[6]            
The plaintiff seeks the following relief:

(a)           
non-pecuniary damages of between $95,000-$120,000;

(b)           
past wage loss in the range of $195,000-$220,000, an amount based on
what he would have earned had he continued employment as a car salesman at West
Coast Toyota or elsewhere;

(c)           
loss of future earning capacity in the range of $150,000-$250,000;

(d)           
loss of housekeeping capacity in the range of $20,000-$25,000; and

(e)           
cost of future care of $14,993.34.

[7]            
The defendants take the position that: non-pecuniary damages should be
$35,000; past income loss should be an arbitrary figure of $7,500; and, there
should be no amounts for loss of future earning capacity, loss of housekeeping
capacity, or cost of future care (or, at best, a nominal amount for this last
item of $1,500).

[8]            
The parties agreed that the plaintiff’s special damages should be fixed
at $733.18.

Discussion

[9]            
At the time of the first accident in February 2009, the plaintiff was a
car salesman working on a commission basis at West Coast Toyota.

[10]        
The plaintiff described himself as a “people person” and the evidence
demonstrates that prior to the accident he enjoyed normal social and sporting
activities with friends, as well as attending the mosque and visiting regularly
with his brother, sister-in-law and their son, with whom he had a tight-knit
relationship.

[11]        
Prior to the first accident, the plaintiff appears to have been in good
health.  His family doctor, Dr. Brian J. Monks, indicated that the
plaintiff had low back problems many years earlier, but not recently.

[12]        
The first accident, which is acknowledged to be the most significant in
terms of the impact of the collision, occurred on February 7, 2009.  The
plaintiff and his girlfriend were going shopping and he was a passenger in her
vehicle.  There is a question as to whether his girlfriend’s car was stopped or
starting to leave the intersection when they were hit from behind.  The
plaintiff says the impact jerked him up and back, and he hit his head on the
headrest and his hand on the door handle.  He says the impact jarred his
shoulder.

[13]        
There was about $6,000 damage to his girlfriend’s car, and he attended
his family doctor, Dr. Monks.  The plaintiff described the pain in his
left leg as “excruciating”, as well as neck pain and soreness in his back.  He
said his hand also hurt, but that resolved within a few months.

[14]        
The second accident occurred on April 2, 2009.  Although the impact in
the collision was not very hard, the plaintiff described that it caused him pain
in his lower back just below his belt and that the force of the impact was hard
enough to shake him up.  He also described how his leg had been extended and he
braced himself for the impact, which resulted in new symptoms involving his
left hip.

[15]        
The plaintiff says that he worked between the first and second accident,
but his back was acting up during that time, and he found it difficult to have
the pleasant demeanour required for him to have success as a salesperson.

[16]        
The third accident occurred over a year after the first accident on July
24, 2010, when the plaintiff was on his way to a wedding in Surrey.  He was
waiting for a traffic light, bent over tuning his radio, when he was hit from
behind.  He described an aggravation in the same area of his back and shoulders
injured in the previous two accidents.  He says he attended the wedding and
stayed, but was sore and emotionally drained, and left before he otherwise
would have.

[17]        
The fourth accident occurred on May 29, 2011, when the plaintiff was returning
from Stanley Park on Georgia Street.  This was only a very mild impact or
contact from the vehicle behind him.

[18]        
The plaintiff says he has symptoms that persist and described them as
follows.  He says he still has symptoms with his lower back radiating into his
left leg, but said that he has good and bad days.  He says he is able to work
with the pain if he takes medication.  He says he cannot sit for too long in a
chair and after two hours he has to get up and move around, but that standing
around triggers the same issues for him.  He described his sleep as being not
as good as it used to be before the accidents.

Medical Evidence

[19]        
The plaintiff called his general practitioner, Dr. Monks, who had
been his doctor since 2001.  The plaintiff also called Dr. Nairn Stewart,
an expert in physical medicine and rehabilitation.

[20]        
The defendants called two doctors who had examined the plaintiff.  Both
were orthopaedic surgeons.  Dr. Martin Grypma saw the plaintiff on April
26, 2010, and Dr. O.M. Sovio saw the plaintiff on July 9, 2013.

[21]        
Dr. Monks saw the plaintiff from time to time.  His opinion report
was dated January 17, 2011 which is after the first three accidents but before
the last accident.  He did not provide an updated report for trial.  He
described the plaintiff as suffering back and neck injuries as a result of the
accidents, and that his recovery had been slow and complicated by the
successive accidents, which he said appeared to have aggravated his symptoms. 
He noted that recent x-rays showed degenerative changes from C-2 to C-6 and
that he believed the accidents caused an aggravation of the degenerative
changes.  He opined that the other source for the back and neck pain arose from
strains to the muscles, ligaments and tendons in his neck and back area, and
stated that in his 2011 opinion:

Although Mr. Jiwani has
improved considerably he still is having low back pain.  I believe he will
continue to experience pain to a greater or lesser degree depending on the
level of his activities.  It is likely that heavy lifting, prolonged sitting or
standing will likely cause an aggravation of his pain.  Therefore I advised him
to avoid occupations that require prolonged sitting, standing or significant
lifting etc.

[22]        
He went on to say:

It is clear that Mr. Jiwani’s
job in car sales was causing him significant low back pain.  I would completely
support him in his decision that not to be working in the car sales as his
daily routines were causing him pain.

[23]        
I agree with Mr. Leong’s submission that the basis for Dr. Monks’
opinion of Mr. Jiwani having a continuing injury is essentially the plaintiff’s
reporting.

[24]        
Dr. Nairn Stewart is a physical medicine and rehabilitation
specialist who was also called to testify by the plaintiff.  Her report is
dated July 30, 2013.  Dr. Stewart opined that:

Given his history it is my
opinion that Mr. Jiwani sustained recurrent soft tissue injuries to his
neck and back in the three motor vehicle accidents.

[25]        
The “history” referred to by Dr. Stewart, above, was as follows.  The
plaintiff reported no neck or back pain prior to the first motor vehicle
accident.  Following the first and the second accident, he complained of neck
pain, lower back pain and headaches.  She thought he would be unable to do
physically demanding work and more sedentary work would be better for him, with
the flexibility to change his work tasks and position periodically during the
day.  Dr. Stewart had recommended the plaintiff obtain regular
housekeeping and psychological counselling to help with adjustment to his
injuries and the loss of his job as a result of those injuries.

[26]        
Dr. Stewart opined on whether surgery in the future was required,
stating that the plaintiff’s injuries will not result in degenerative changes
in his spine or joints.  She noted:

The degenerative changes noted on
imaging represent an incidental factor, neither resulting from his injuries in
any of the motor vehicle accidents nor contributing significantly to his
symptoms, which are compatible with soft tissue injury and which have improved
over time.

[27]        
In her evidence at trial, Dr. Stewart confirmed that she did not
think the degenerative changes were symptomatic now because of the accident.

[28]        
Dr. Grypma and Dr. Sovio, the experts called by the
defendants, were both cross-examined on their respective reports.  Dr. Sovio
gave his evidence by way of video deposition.

[29]        
As of April 26, 2010, the date of Dr. Grypma’s report and about a
year after the first accident, the plaintiff reported that his neck had
recovered within around four to six months from the first accident. He reported
occasional shoulder pain and that his biggest problem was his lower back and
pain that radiates along his pelvic rim, and that he experienced pain on a
daily basis.  Dr. Grypma said:

There are no signs of any disc
herniation based on the fact that he has no nerve root tension signs, his motor
examination was normal, his reflexes are normal and his muscle circumference
was normal.  It is my impression that Mr. Jiwani is most likely to recover
fully.  However, there is a slight possibility that he may continue to have
ongoing symptoms.  However, these symptoms are more likely than not due to the
degenerative changes in his lower back.  He has significant wear to the facet
joints and there is a possibility he may continue to have ongoing pain but it
would not be due to this motor vehicle accident.

[30]        
Dr. Sovio examined the plaintiff on July 9, 2013.  He said:

The patient appears to have had,
by all accounts, some soft tissue complaints following these particular motor
vehicle accidents, but certainly I do not feel that the patient is disabled on
a physical basis.

[31]        
Dr. Sovio said that he did not feel that the plaintiff was
“physically limited in any capacity”.

[32]        
I think Mr. Leong, counsel for the defendants, is correct that
following the initial period of about four to five months after the first accidents,
the pain that the plaintiff reports is subjective in that there is no objective
evidence of it, and that the assessment of the plaintiff’s damages involves an
assessment of his credibility and reliability.

The Plaintiff’s Credibility

[33]        
The burden of proof is on the plaintiff to establish the injuries that
he says he suffered in the accidents.  Credibility is an important issue in
this case.

[34]        
The defendants suggest I should be cautious in accepting the plaintiff’s
testimony without physical or corroborative evidence.  I will discuss some of
their submissions now.

[35]        
The defendants’ counsel argued that, with respect to the first accident,
the plaintiff told his doctors his girlfriend’s car was stopped when they were rear
ended, but indicated on cross-examination that the light had turned green and they
had just begun to move when they were “suddenly hit from behind”.  Although
that is a somewhat different account, it is not a serious contradiction.

[36]        
The defendants also pointed to inconsistencies in the plaintiff’s
evidence about his relationship with his nephew and whether he would have
continued in the car sales business but for the accident.  Both of those
examples were situations where the plaintiff gave a more nuanced answer rather
than contradictory statements and I place no weight on them as affecting the
plaintiff’s credibility.

[37]        
I agree that the plaintiff to some extent tried to blame his change of
diet on the accidents but I found that evidence not of great significance or particularly
relevant to the plaintiff’s credibility.

[38]        
The defendants place some weight in their argument on the fact that two
employees from the plaintiff’s former employer, West Coast Toyota, were called,
and did not remember discussions with the plaintiff about the accidents or his
physical condition or that the plaintiff ever gave a note to them about his
need for a medical absence from work.  Both of these witnesses were involved in
the meeting at which the plaintiff’s employment was terminated in July 2009. 
Although they did not see any physical evidence of the plaintiff’s injuries or
hear him complain, I do not think that their observations necessarily impact on
the plaintiff’s credibility.  The workplace was a performance-driven
environment where minimum sales were expected to maintain employment.  I doubt
that the plaintiff would want to exhibit his injured status in those
circumstances.  In any event, Mr. Parker, one of these West Coast
employees, gave evidence that the plaintiff’s performance started to slip after
the first part of 2009, something which is consistent with the injuries he
asserts from the first accident.

[39]        
The plaintiff was cross-examined about a statement he gave following the
first accident where he is alleged to have said to ICBC “before this accident
happened I had a herniated disc in my lumbar spine.  I was diagnosed with a
herniated disc a few years ago”.  When cross-examined on this, the plaintiff
did not remember telling ICBC that he had a herniated disc in the past or that
he remembered ever having a herniated disc.  Although the evidence does not
suggest that the herniated disc was symptomatic prior to this first accident,
the plaintiff’s strange and rather less than forthright manner in dealing with
this prior statement to ICBC raises some question about his candour.

[40]        
I have to assess the plaintiff’s credibility in light of all of the
evidence at trial.

[41]        
The plaintiff called a number of witnesses who testified about the
apparent effect of the accident on him.  These were his brother, Altaf Jiwani,
and his brother’s wife (the plaintiff’s sister-in-law), Gillian Jiwani.  They
commented on the plaintiff’s change of mood, something the plaintiff testified
about, and his loss of liveliness.  The plaintiff’s long-time friend, Harinder Pabla,
spoke of the activities that they used to do such as going to movies, shopping,
and seeing live music, but that the plaintiff now appears to have trouble
sitting through a movie or a car ride, is not as mobile, and walks
lethargically with a slight limp and very slowly.  All these witnesses
described the plaintiff’s depressed approach to life and his lack of drive.

[42]        
I appreciate Mr. Leong’s argument that these are people who would
be expected to be friendly witnesses, but they also appeared to me to be
straightforward and their evidence was not seriously challenged.  Although two are
closely related to the plaintiff, Mr. Pabla has been a member of the RCMP
for almost twenty years and appeared to be a careful witness.  He described
changes in how the plaintiff deals with being in a car, the condition of his
apartment before and after the accident, and the plaintiff’s weight gain and
lethargy.  The focus of cross-examination was that since Mr. Pabla married
his wife and started a family, his attention has been focussed on them.  Mr. Pabla
agreed that his child has taken time away from that available to do things with
friends.

[43]        
Overall, in light of all the evidence, I generally found the plaintiff
to be a credible witness.

Non-Pecuniary Damages

[44]        
My conclusion on the evidence as a whole is that the plaintiff has
suffered soft tissue injuries.  I find that he suffered soft tissue injuries in
his neck and back in the first three accidents, the main one being the first
accident, and some minor exacerbation of those injuries including mild hip pain
in the second and third accidents.  The fourth accident did not cause any injury
to the plaintiff.

[45]        
I conclude that the neck problems and the headaches resolved within
about six months of the first accident, and that the back pain continues to
some degree now five years after the first and most significant accident.

[46]        
I find that the back pain is soft-tissue related and has affected the
plaintiff’s mood, his ability to sleep, and to some degree, his disposition and
in turn his relationship with his family and friends, including his nephew.  I
think that the accident has had an impact on the plaintiff’s family and social
life and restricted the pleasure he had received from his friends and family in
the past.  The burden is on the plaintiff to prove the extent of his injuries. 
While I am persuaded that the plaintiff still has lower back pain, I am not
satisfied that he is as seriously injured as he contends.  The plaintiff’s soft
tissue injury to his lower back has persisted but I find that in due course any
back pain will improve and if it persists will be of a type that causes modest
discomfort and requires him to change positions and not sit for too long.

[47]        
That said, I am not persuaded that the plaintiff is completely pain
free.  I think that the plaintiff would benefit, as suggested by Dr. Grypma,
from an active rehabilitation program.

[48]        
In assessing the plaintiff’s damages I refer to Stapley v. Hejslet,
2006 BCCA 34 at para. 46, leave to appeal ref’d [2006] S.C.C.A. No. 100,
wherein Kirkpatrick J.A. described some of the factors to be considered when
assessing general damages, which include:

(a)      age of the plaintiff;

(b)      nature of the injury;

(c)      severity and duration of pain;

(d)      disability;

(e)      emotional suffering;

(f)       loss or impairment of life;

(g)      impairment of family, marital and social relationships;

(h)      impairment of physical and mental abilities;

(i)       loss of lifestyle; and

(j)       the plaintiff’s stoicism (as a factor that should not,
generally speaking, penalize the plaintiff).

[49]        
Both parties have put forward a number of cases illustrative of what
they say is the appropriate range of non-pecuniary damages on these facts.

[50]        
The plaintiff relies on the following cases: Fletcher v. Meyer,
[1993] B.C.J. No. 508 (S.C.); Majer v. Beaudry, 2002 BCSC 746; Stanikzai
v. Bola, 2012 BCSC 846; Johnson v. Kitchener, 2012 BCSC 1796; and Beagle
v. Cornelson, 2012 BCSC 1934.

[51]        
The defendants rely on the following cases: Williamson v.
Makashimada, 2004 BCSC 1348; Shum v. Viveiros, 2006 BCSC 158;
Willing v. Ayles, 2009 BCSC 1035; Thomas v. Wormsley, 2009 BCSC
919; Penland v. Lofting, 2008 BCSC 507; Posch v. Davies, 2010
BCSC 221; Hubbard v. Saunders, 2008 BCSC 486; Demidas v. Poinen,
2012 BCSC 416; and Keenan v. Fletcher, 2011 BCSC 520.

[52]        
Given my findings and after considering the authorities relied upon by
the parties and the factors mentioned in Stapley, the plaintiff is
entitled to the sum of $65,000 for non- pecuniary damages.

Past and Future Loss of Earning Capacity

[53]        
The principles applicable to the assessment of damages for loss of
earning capacity were expressed in Perren v. Lalari, 2010 BCCA 140 at para. 22:

A plaintiff must
always prove … that there is a real and substantial possibility of a
future event leading to an income loss. If the plaintiff discharges that burden
of proof, then depending upon the facts of the case, the plaintiff may prove
the quantification of that loss of earning capacity, either on an earnings
approach … or a capital asset approach … The former approach will be more
useful when the loss is more easily measurable …. The latter approach will be
more useful when the loss is not as easily measurable … A plaintiff may indeed
be able to prove that there is a substantial possibility of a future loss of
income despite having returned to his or her usual employment. …. But … an
inability to perform an occupation that is not a realistic alternative
occupation is not proof of a future loss. [Citations omitted.]

[54]        
As Smith J.A. said in Rowe v. Bobell Express Ltd., 2005 BCCA 141(at
para. 30):

…a claim for
what is often described as “past loss of income” is actually a claim for loss
of earning capacity; that is, a claim for the loss of the value of the work
that the injured plaintiff would have performed but was unable to perform
because of the injury.

[55]        
I will first discuss the claim for past loss of earning
capacity.

Past Loss of Earning Capacity

[56]        
This is not a conventional case of an injury causing a plaintiff to miss
work, which would involve the assessment of wage loss pending trial.

[57]        
The plaintiff’s claim is that his injuries caused him to fall short of
what he needed to keep his job at the car dealership – but for the accident he
would have been able to keep his job or perform a similar job elsewhere.  The
plaintiff’s position is that he would have continued in his position at West
Coast Toyota or somewhere else in the car sales business, and he relies on
evidence of earnings referred to in the report of Mr. Darren Benning, an
economist, dated July 25, 2013.  That report indicated that prior to the
accident, the plaintiff had earned $49,719 in 2006; $56,152 in 2007, and
$32,380 in 2008.  Mr. Benning also provided a calculation showing the
plaintiff’s average earnings between 2006 and 2008 in 2013 dollars, which
amounted to $54,075 per annum.

[58]        
According to Mr. Benning’s report, the plaintiff earned $10,565 in
2009 plus Employment Insurance benefits of $4,551; negative $501 in 2010; and $5,306
in 2011.  The plaintiff’s income for the years 2012 and 2013 was very modest as
he only made one real estate sale but incurred expenses to be licenced and
operate as a realtor.

[59]        
Mr. Benning estimated the plaintiff’s past income loss net of
Employment Insurance benefits at $193,670.  This figure comes from the 2006
Census income information for the group of employees including car salesman,
which Mr. Benning estimates after adjustment to be $212,899 net of tax and
EI premiums, less the income the plaintiff actually earned from 2009 to trial
of $19,230, also net of tax and EI premiums.

[60]        
Dealing with past loss of income, the defendants say that the plaintiff
has suffered only a nominal loss, if any.  Counsel for the defendants says that
the plaintiff did not miss any days of work following the accident and that
there is no evidence of lost sales due to missed work or reduced work
performance.  He submits that while the plaintiff’s general malaise and lack of
motivation are significant to his role as a salesperson, they may relate to any
number of factors unconnected to the accidents, such as the plaintiff’s stage
and position in life and his level of success compared to that of his siblings.

[61]        
I find that the plaintiff’s injuries affected his ability to earn income
as a car salesperson and likely lead to his lack of productivity that resulted
in his termination.  I am satisfied that the plaintiff’s injuries impaired his
ability to earn income as a car salesman.

[62]        
In assessing this loss I must determine the chance of the plaintiff
earning income and assess what he has lost by reason of the injuries he
suffered in the accidents.  I find that over time, the impact of his injuries
on his ability to earn income diminished as I find he improved.  Considering
the whole of the evidence, I conclude that the plaintiff’s injuries no longer
affect his ability or capacity to earn income as a car salesman.  I would
assess his loss for the period up to trial at $40,000.  I make that assessment
on a net of taxes basis.

Loss of Future Earning Capacity

[63]        
The plaintiff says that damages for future loss of capacity should be in
the range of $150,000 to $250,000.

[64]        
Although Mr. Jiwani is capable of performing the duties of a car
salesperson or a realtor, the plaintiff argues that when he is in discomfort
and pain it is difficult to cheerfully and patiently deal with clients.  Further,
while he has a bachelor’s degree, a diploma in computer networking, and a realtor’s
license, his physical restrictions prevent entry into certain areas of work and
restrict his ability to perform in others.  Mr. Jiwani says he could not
work as a computer networker as he cannot bend and kneel in order to access
tight spaces as required, and that he is seriously restricted in doing any job
that requires prolonged sitting.  Overall, the plaintiff says the emotional
toll the accidents have taken on his attitude and self-esteem will continue to
inhibit his success for many years.

[65]        
Mr. Benning in his report attempted to demonstrate what the
plaintiff would earn if he was employed as a realtor after the accident rather
compared to what he would have earned as a car salesman without the accidents. 
If it is assumed that the plaintiff’s earnings would be consistent with the
first quartile earnings applicable to real estate agents, his future income
loss Mr. Benning said could be estimated at $276,093.  However, if it is
assumed that the plaintiff’s earnings will be consistent with the median earnings
applicable to real estate agents, his annual future “with-accident” income will
exceed his annual future “without-accident” income in the seventh future year,
where at the end of the sixth future year the loss is estimated at $52,739.

[66]        
However, Mr. Spraggs argues that Mr. Jiwani may abandon his
career as a realtor and it is open to the court to assess his loss of earnings
from a capacity standpoint.

[67]        
The defendants however say that the plaintiff has not proven a real and
substantial possibility that he will suffer a loss in the future with respect
to his prospective potential earnings as either a car salesman or a realtor or
in any capacity.  The defendant says that the plaintiff has the capacity
according to the plaintiff’s expert evidence to be a realtor or a car
salesperson and any lack of income earning capacity is not caused by the
accidents.

[68]        
In Schenker v.
Scott, 2014 BCCA 203, Harris J.A. said:

50
The principles specific to assessing an award for loss of
future earning capacity are well settled: see, for example, Rosvold v.
Dunlop, 2001 BCCA 1, and Perren v. Lalari, 2010 BCCA 140.  These
principles were recently canvassed by this Court in Meghji v. British
Columbia (Ministry of Transportation and Highways), 2014 BCCA 105, where
Smith and Willcock JJ.A. writing for the Court said:

(ii) The approach to assessing loss of future
earning capacity

[81]      It
is correct to say that an award of damages under this head is a result of the
careful weighing of all the evidence and the application of considered judgment
to that evidence. It is not a calculation: Mulholland v. Riley Estate
(1995), 12 B.C.L.R. (3d) 248 at para. 43, [1995] B.C.J. No. 1823
(C.A.).  Because the court is required to take into account all substantial
possibilities it is necessary to use careful judgment in weighing those
possibilities.  In order to ensure that all reasonable substantial
possibilities are taken into account, however, the conventional approach is
that described in Lines [2009 BCCA 106]. In that case, at para. 57,
Saunders J.A. held:

There
are two major components to an assessment of loss of future earning capacity.
One is the general level of earning thought by the trial judge to be
realistically achievable by plaintiff but for the accident, taking into account
the plaintiff’s intentions and factors that weigh both in favor of and against
that achievement, and the other is the projection of that earning level to the
plaintiff’s working life, taking into account the positive and negative
vagaries of life. From these two major components must be applied an analysis
that produces a present value of the loss, adjusted for all appropriate
contingencies.

[82]
The standard of proof to be applied when evaluating hypothetical events such as
loss of future earnings, is simple probability rather than the balance of
probabilities: Athey v. Leonati, [1996] 3 S.C.R. 458, [1996] S.C.J. No. 102.

51        In assessing a claim for future income loss,
whether under an earnings approach or a capital asset approach, a court must
first inquire into whether there is a substantial possibility of future income
loss: see Perren v. Lalari, …[quote omitted, referred to above.]

52        In Perren, an award of $10,000 for future
loss of income was set aside where the trial judge had found that the
plaintiff was less marketable than before the accident but not in a way that
demonstrated a substantial possibility that she would suffer an associated
pecuniary loss.

[Emphasis
added.]

[69]        
Russell McNeil, an occupational therapist and work capacity evaluator, was
a witness called by the plaintiff and he provided a report dated July 29, 2013,
based on a June 17, 2013 assessment of the plaintiff.  Mr. McNeil said,
with respect to the plaintiff’s overall work capacity:

51. Demonstrated Capacity:  Based on assessment
results of June 17, Mr. Jiwani has demonstrated the capacity to perform
his work as a Car Salesman as well as a Real Estate Agent on a full time basis
at a competitively employable work pace, although there will be restrictions in
his tolerance.

52.       He has demonstrated the capacity to perform the
strength requirements of the work.  However, there will be some restrictions in
his capacity to perform the stamina requirements of the work and he would
require accommodations.

53.       Specifically, he has
demonstrated restrictions in his capacity for prolonged sitting and prolonged static
standing as well as restrictions with repetitive bending.  However, he will be
able to manage by alternating positions and he would benefit from ergonomic
accommodations while sitting.

[70]        
Mr. McNeil in his report also stated:

22.       In summary, Mr. Jiwani
demonstrated the capacity to perform activity that requires light to modified
medium level strength.  He demonstrated restrictions in his capacity for
activity requiring static vertical reaching as well as restrictions in his
capacity to perform prolonged static below waist work including bending,
crouching, and kneeling.  There were restrictions in his capacity to perform
static neck extension (looking up).  There were as a measured restriction in
his right upper extremity strength as well as restrictions in his capacity to
perform pushing/pulling, one handed carrying, two handed carrying, and two
handed lifting.  There were also restrictions in his tolerance for sitting and
static standing.

[71]        
Although there will be some continuing back discomfort for a while, I do
not find that the plaintiff has demonstrated a substantial possibility that any
continuing discomfort will cause a loss of future income.  The plaintiff says
that he is unable to return to his work as a computer networker, but the brief evidence
on that point shows that was only a hobby before the accident.  He is capable
of doing the work that he has done and the work he wishes to do and has been
for some time.  According to Mr. McNeil’s report, he has the competitive capacity
to do the lines of work he has tried – as a car salesperson or as a realtor.  I
conclude that although the plaintiff suffers some ongoing back pain, with
standing and stretching he will be able to do either the job of a realtor or
the job of a car salesman.  I accept that there is ongoing discomfort to a
degree but not to the point that there is a real and substantial possibility of
a future event leading to an income loss.  I have also taken into account the
ongoing discomfort in my assessment of non-pecuniary damages.

[72]        
I have concluded that any ongoing discomfort suffered by the plaintiff
can be accommodated by standing and shifting position.  The plaintiff has not
demonstrated any substantial possibility of a future event leading to an income
loss.  Accordingly I make no award for loss of future earning capacity.

Cost of Future Care

[73]        
The plaintiff’s claim is based upon a number of recommended items geared
to assisting with his back pain and making his workplace more ergonomically
acceptable.  Those items total $14,993.34.  In addition, the plaintiff submits he
should have a personal trainer to establish and monitor a regular gym exercise
program, emphasizing stretching and core strengthening techniques.  In total,
the plaintiff submits that the sum of $15,000-20,000 is a reasonable estimate, which
sum includes a gym pass.

[74]        
The defendants say that nominal damages for medications and sessions
with a physiotherapist are appropriate, at no more than $1,500.

[75]        
I think that the expert evidence supports that some of these devices for
ergonomic relief and rehabilitation are in fact supportable to allow the
plaintiff to accommodate any future back discomfort and to maintain a stronger
back.  I would award the amount of $4,000.

Loss of Housekeeping Capacity

[76]        
As to housekeeping, I am not persuaded that this claim is made out as to
a separate claim.  Although when the plaintiff was more symptomatic he was
unable to keep his home as clean as he would like, I am not persuaded that
there is a proven loss of capacity in that regard in the future.  In assessing
non-pecuniary damages, I have taken the difficulty he had for a time to clean
his house into account.

Special Damages

[77]        
Special damages are as agreed.

Summary

[78]        
To summarize, I award the following amounts to the plaintiff:

“J.S. Sigurdson J.”
The Honourable Mr. Justice J.S. Sigurdson