IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140711

Docket: M125667

Registry:
Vancouver

Between:

Keith Barnes

Plaintiff

And

Kirk Lima

Defendant

Before:
The Honourable Mr. Justice G.C. Weatherill

Reasons for Judgment

Introduction

[1]            
The plaintiff claims damages against the defendant for personal injuries
he suffered during a motor vehicle collision that occurred on October 13,
2010 (the “Accident”).

[2]            
Liability for the Accident is not contested. The quantum of the
plaintiff’s loss is contested. The defendant contends that the plaintiff’s
injuries resolved in relative short order and that any ongoing pain symptoms
are the result of a pre-existing condition.

The Accident

[3]            
At approximately 9 pm on October 13, 2010, the plaintiff was driving
his 1995 Honda Civic westbound on Broadway Avenue in Vancouver. His then
fiancée and now wife, Kim Barnes (“Kim”), occupied the front passenger seat. Both
were wearing a seatbelt. As the plaintiff approached the intersection at
Ontario Street, the traffic light in his direction was green. As the plaintiff
was proceeding through the intersection, the defendant’s eastbound vehicle
turned left in front of the plaintiff’s vehicle. A collision occurred.

[4]            
The plaintiff described experiencing “severe force” during the collision.
Both front airbags in the plaintiff’s vehicle deployed. The plaintiff’s airbag
struck him hard in the chest. His hip struck the console. He felt immediate
pain in his chest and hip.

[5]            
Ambulance, fire and police emergency services attended. The plaintiff’s
vehicle was a total loss. The plaintiff and Kim called a friend who drove them
home from the Accident scene. The plaintiff began to “stiffen up” and the pain
in his neck and back became increasingly worse. He went to Vancouver General
Hospital where he was examined, advised to rest and discharged.

[6]            
The following day the plaintiff was very stiff and sore, with pain in
his hip, back, neck and chest. He was advised by his family physician not to
return to work for the next few days, which advice he heeded.

[7]            
The plaintiff’s hip, neck, shoulder and chest pain fully resolved within
the next several months. He continues to have upper back pain and stiffness.

The Plaintiff

[8]            
The plaintiff is currently 35 years of age. He and Kim were married in April 2011.

[9]            
At the time of the Accident, the plaintiff was a shop foreman/mechanic
employed by Carter Motors in Vancouver.

[10]        
In 1998, the plaintiff injured his neck and right shoulder in a motor
vehicle accident. His neck injury healed relatively quickly. His shoulder
injury improved over time. Neither injury affected his ability to work. However,
in 2007 and again twice in 2009, the plaintiff re-injured his right shoulder
while performing strenuous work at Carter Motors. He missed work and briefly received
workers compensation on two of those occasions. Those shoulder injuries had
resolved by the time of the Accident but the plaintiff’s right shoulder
continues to be weak and he is required to guard against overly straining it on
an ongoing basis.

[11]        
The plaintiff is a hard worker who, in his words, always tries to do all
that he can do and be all that he can be. Aaron Harvey (“Mr. Harvey”), the
plaintiff’s immediate supervisor at Carter Motors, testified that prior to the
Accident the plaintiff was a strong, charismatic person with a good work ethic
and attitude. The work performed by the plaintiff was physically demanding and
technical in nature. He was good at what he did and Carter Motors had high
expectations for him. In 2007 his skills were acknowledged when Carter Motors
assigned to him the additional duties of a shop foreman.

[12]        
There was a time quota for each job performed by mechanics at Carter
Motors. Each mechanic was paid a flat rate for performing the job regardless of
whether it was performed faster or slower than the allocated time quota. Remuneration
depended upon productivity. Mr. Harvey testified that the plaintiff often
completed his job assignments faster than the applicable time quota. Hence he
often had the opportunity to work on more jobs during the day. The more tasks the
plaintiff completed in a day, the more money he earned. The plaintiff testified
that approximately 20% of his pay was bonus pay due to his productivity and
efficiency.

[13]        
The plaintiff was paid an additional $2 per hour as compensation for his
foreman duties. He was one of the top earners among Carter Motors’ 14
mechanics.

[14]        
The plaintiff was absent from work for approximately ten days as a
result of the Accident. He then returned to work on a graduated basis. By November 29,
2010 he was back to work on a full time basis.

[15]        
The plaintiff continued to have pain and stiffness in his mid-back. His
doctor ordered an x-ray, which was performed on December 21, 2010. The
x-ray revealed that the plaintiff had sustained a mild fracture of his T-4
vertebra.

[16]        
After the plaintiff had returned to working full time, Mr. Harvey
noticed that he generally moved slower than he had prior to the Accident. It
became apparent to Mr. Harvey that the plaintiff was less able to deal
with his shop foreman role and, although he rarely complained, the plaintiff
requested less demanding jobs than he had done prior to the Accident. His
productivity decreased due to a desire not to aggravate his pain. Both the
plaintiff and Kim testified that the plaintiff often came home from work early
complaining of lower back pain. Carter Motors accommodated him in this regard.

[17]        
The plaintiff had no relevant pre-Accident injuries other than the
injury to his right shoulder. The plaintiff’s on-going right shoulder problems
were aggravated by the Accident.

[18]        
Since the Accident, the plaintiff has followed all of the treatment
recommendations made by his physicians. His chest and neck pain has resolved
but he has continuing back pain, although he has good days and bad days and his
back symptoms are not debilitating. His right shoulder injury has resolved to
its pre-Accident level.

[19]        
No active rehabilitation was prescribed to the plaintiff. Rather he was
told to keep active and “listen to his body”. He did undergo recommended massage
therapy from June to August 2001, primarily for his back, at the end
of which his massage therapy benefits were exhausted. At his final session, he
indicated to his therapist that he was “doing well”. He did not continue those
sessions on his own because he felt his recovery had plateaued. He has been
able to carry on full-time work despite his symptoms but experiences back pain
if his activities are overly strenuous. He has found that massage therapy, yoga
and jin shin do exercises help relieve his symptoms, as do stretching and other
exercises recommended by his family doctor.

[20]        
In early 2010, the plaintiff commenced extensive renovations to his
condominium. He did almost all of the physical labour himself. The only work
that was unfinished at the time of the Accident was the installation of tile on
the kitchen floor. While he was able to install the tile, he found the work to
be physically strenuous and difficult.

[21]        
In December 2012, the plaintiff sold his condominium and he and Kim
purchased a house. He was able to assist in the renovation of the basement but
had to hire others to help with the work as it was too physically demanding for
him to do on his own. He and Kim plan to do other renovations on the house but
the plaintiff does not feel he will be able to do the work himself.

[22]        
Kim does the majority of the housework and the plaintiff does the
majority of the yard work.

[23]        
The plaintiff and Kim now have a daughter, Cecilia, born in August 2012.
The plaintiff often struggles to carry her, put her in her car seat and bathe
her.

[24]        
In December 2013, the plaintiff left his job at Carter Motors and
accepted a new job as a technician at Tesla Motors in Vancouver. The plaintiff
believes in Tesla Motor’s corporate philosophy and is fascinated by its
technology. As well, the Tesla Motors job is less physically demanding than his
job was at Carter Motors. He earns $32 per hour, which is less than the $33.03
per hour he was earning at Carter Motors in December 2013. However, he earns
substantial overtime pay at Tesla Motors, mostly due to travel necessary to
service Tesla vehicles in B.C., Alberta and Saskatchewan. The plaintiff testified
that this travel often causes his back to become sore.

[25]        
I found the plaintiff, Kim and Mr. Harvey to be honest, sincere,
forthright and credible witnesses. I have no difficulty accepting their
evidence in its entirety.

Expert Medical Evidence

Dr. Donald Werry

[26]        
The plaintiff called Dr. Donald Werry, an experienced orthopedic surgeon,
who was qualified without debate as an expert on the diagnosis, cause and
prognosis of the plaintiff’s injuries as well as an appropriate treatment
regime for his injuries.

[27]        
Dr. Werry conducted an independent medical examination of the
plaintiff on February 26, 2014, which included a musculoskeletal physical
examination. In Dr. Werry’s opinion, it is probable that the Accident
caused the plaintiff to suffer a mild compression fracture of the 4^th
thoracic vertebra. His opinion is based not only upon his review of the December 21,
2010 x-ray but also upon a physical comparison of the anterior and posterior
heights of the T-4 vertebra to the T-3 and T-5 vertebrae. In Dr. Werry’s
opinion, this fracture had fully healed by May 2011.

[28]        
Based upon the plaintiff having had no previous history of neck or back
injury, Dr. Werry further opined that the plaintiff probably experienced a
soft tissue injury to his neck and back in the form of muscle strain and
connective tissue strain as a result of the Accident. Those injuries fully
healed within 6 months. He further opined that the plaintiff’s persisting
stiffness and intermittent activity associated mid-back pain is likely
myofascial in nature, arising from muscles and connective tissues. He opined
that pain can persist beyond biologic healing and that the plaintiff will
probably always experience upper back stiffness and activity-related back
pains, but his symptoms are unlikely to worsen.

[29]        
Dr. Werry opined that the plaintiff’s right shoulder pain symptoms
likely arise from impingement of one or more of the right shoulder rotator cuff
tendons and are at the pre-Accident level.

[30]        
Dr. Werry agreed on cross-examination that, based upon the records
he reviewed, the plaintiff’s post-Accident treatments and prescribed
medications were relatively few in number. However, he pointed out that there
is a great deal of variability in the stoicism of patients as well as the
prescribing practices of physicians. He noted that, although the plaintiff was
likely doing well by March 2011, his relatively quick return to full-time
work may not correlate to the severity of his injury. He also pointed out that
some patients need a lot of assistance during their healing process while
others do not.

[31]        
Dr. Werry was an impressive expert witness whose evidence and
opinions were clear and helpful. I accept his opinions.

Dr. Thomas Greidanus

[32]        
The defendant called Dr. Greidanus who is also an experienced
orthopedic surgeon. He too was qualified without debate as an expert on the
diagnosis and prognosis of the plaintiff’s injuries.

[33]        
Dr. Greidanus conducted a physical examination of the plaintiff on February 24,
2014. He found no significant evidence of anterior impingement syndrome in his
right shoulder, although he agreed that he had only conducted one of three
possible tests that could have been done.

[34]        
Dr. Greidanus opined that the plaintiff’s mid-thoracic sprain had
resolved and that the plaintiff had suffered a minor anterior compression
fracture of his T-4 vertebra, possibly from the Accident, which had healed.

[35]        
Dr. Greidanus also opined that no future treatment is required for
the plaintiff. Rather, he should exercise regularly to maintain his core
strength and avoid extreme activities and placing excessive stress on his
thoracic spine by lifting heavy weights or improper lifting, all of which is
common sense.

[36]        
In my view, the examination performed by Dr. Werry was more
thorough than that performed by Dr. Greidanus. For example, Dr. Werry
examined the plaintiff’s actual x-ray films, whereas Dr. Greidanus merely
read a brief radiologist’s report indicating that the T-4 fracture existed and
could have been “old”. Although I find that Dr. Greidanus’ opinions
do not vary significantly from those of Dr. Werry, to the extent they do,
I accept the opinions of Dr. Werry.

Analysis

Causation

[37]        
in Bulpitt v. Muirhead, 2014 BCSC 678, I wrote:

[77] The “but for” test is the general test for factual
causation: the plaintiff must prove on a balance of probabilities that but for
the defendants’ negligence, he would not have suffered his injury. The
defendant’s negligence must have been a necessary cause of the injury. This
test was most recently summarized and affirmed by the Supreme Court of Canada
in Clements v. Clements, 2012 SCC 32 at paras. 8 – 10 (see also Ediger
v. Johnston, 2013 SCC 18 at paras. 28 – 29).

[78] The classic statement of the law of causation by Mr. Justice
Sopinka in Snell v. Farrell, [1990] 2 S.C.R. 311 328 is that causation
need not be determined by scientific precision. It is a practical question of
fact that can be answered by ordinary common sense.

[79] Once factual causation is found, liability may still be
limited in the assessment of damages. I note the well-established
principle of tort law that the defendant need not place the plaintiff in a
better position than his original position and should not compensate the
plaintiff for damage he would have suffered in any event, otherwise known as
the crumbling skull rule: Blackwater v. Plint, 2005 SCC 58 at paras. 78
– 81.

[38]        
Causation is not contested save for the plaintiff’s pre-existing right
shoulder injury.

Non-Pecuniary Damages

[39]        
A non-exhaustive list of the general principles to be applied by the
court in assessing non-pecuniary damages was set out in Stapley v. Hejslet,
2006 BCCA 34, where the court stated, at para. 46:

[46] The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

I would add the following factors, although they may arguably
be subsumed in the above list:

(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: Giang
v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[40]        
The plaintiff is relatively young and has a long work-life ahead of him.

[41]        
Prior to the Accident, the plaintiff was a motivated and high performing
individual with a physically demanding job who did not avoid tasks at work. He
had no physical limitations other than a pre-existing right shoulder injury
that became aggravated on occasion. At the time of the Accident, his shoulder
injury was healed.

[42]        
It is clear that the plaintiff suffered injuries in the Accident. Indeed,
the defendant concedes that the plaintiff suffered soft-tissue injuries to his
neck and back as well as injuries to his hip and chest as a result of the
Accident. He also acknowledges that the Accident aggravated the plaintiff’s
previous right shoulder injury. However, the defendant submits that the
plaintiff’s injuries were substantially resolved within a period of a few
months and that any ongoing back stiffness or pain is either non-existent or is
not limiting in any way.

[43]        
The plaintiff is not the type of person who complains about pain. He is
stoic and works through pain. When he returned to work after the Accident, he
gave more strenuous jobs to other mechanics, occasionally asked for help
performing his jobs and often had to go home early due to his pain.

[44]        
Once the plaintiff became aware that he had a fracture in his T-4
vertebra, he felt he understood the reason for his back pain and stiffness and
followed his doctor’s recommendations in terms of exercise. He did not find it
necessary to complain any further. I am not persuaded that the lack of
visits by the plaintiff to a physician is cogent evidence of the plaintiff no
longer suffering from pain. As Smith J. said in Edmondson v. Payer,
2011 BCSC 118 at para. 37, “a plaintiff whose condition neither deteriorates
nor improves is not obliged to constantly bother busy doctors with reports that
nothing has changed, particularly if the plaintiff has no reason to expect the
doctors will be able to offer any new or different treatment.”

[45]        
Prior to the Accident, the plaintiff engaged in several recreational
activities, such as mountain biking, camping, hiking and playing squash. He has
not engaged in those activities to the same extent since the Accident, primarily
because his life has become busier since his marriage and the birth of his
daughter and to a lesser extent because he finds the physical demands to be
challenging, particularly those related to camping (setting up the camp,
chopping wood, etc.). To the extent he still participates in those activities
he will likely do so with less intensity than was the case prior to the
Accident.

[46]        
I find that, although the plaintiff is no longer as physically active as
he was before the Accident, he is not disabled from the activities of daily
living. The reduction in his recreational activities are primarily due to the
changes in his life brought about by his marriage to Kim in 2011 and the birth
of his daughter in 2012, rather than his Accident-related injuries. His
Accident-related symptoms resolved within 3 months, with the exception of his back
pain, which still persists albeit on an occasional basis only. I accept Dr. Werry’s
opinion that the shape of the plaintiff’s T-4 vertebra will not return to its
pre-Accident shape and that he will probably continue to experience upper back
stiffness and activity-related back pains. However, I find that those episodes
will be at most sporadic.

[47]        
Counsel for the plaintiff submits that non-pecuniary damages in the
range of $65,000 to $80,000 are appropriate. He relies on the following
decisions:

a)    Klein v. Dowhy,
2007 BCSC 1151 ($75,000);

b)    Strazza v.
Ryder, 2012 BCSC 1693 ($60,000);

c)     Driscoll
v. Desharnais, 2009 BCSC 306 ($55,000); and

d)    Shearsmith v.
Houdek, 2008 BCSC 997 ($60,000).

[48]        
In Klein, the plaintiff was 22 years old at the time of the motor
vehicle accident in which he suffered injuries to his neck, back, and left
shoulder. Prior to the accident the plaintiff was a physically fit person with
no relevant medical problems. The pain from his injuries interfered with his
enjoyment and ability to lift and play with his infant son, pursue his
recreational activities and work in his food service job. Although his symptoms
had improved by the time of trial, he continued to have some lingering pain,
which was expected to continue in the future.

[49]        
In Strazza, the plaintiff was 26 years old at the time of the
motor vehicle accident in which he suffered soft tissue injuries to his neck
and back. Prior to the accident the plaintiff was a physically active person
who enjoyed walking, running and working on cars. He continued to experience
pain, particularly in his mid to lower thoracic back, at the time of trial. The
pain was not expected to resolve completely in the future and interfered with
his ability and enjoyment to engage in his recreational activities and household
tasks and threatened his career goal of being a long-haul truck driver.

[50]        
In Driscoll, the plaintiff was approximately 40 years old at the
time of the motor vehicle accident in which he suffered musculoligamentous
strain and soft tissue injuries to his neck, right shoulder and back. At the
time of trial the plaintiff continued to suffer pain, sleep disturbance, and
restrictions on the recreational activities he enjoyed before the accident,
such as motorcycle riding, full-contact ball hockey, golf, and rough-housing
with his children. He also had a reduced capacity to work in his lawn
maintenance business.

[51]        
In Shearsmith, the plaintiff was 42 years old at the time of the
motor vehicle accident in which she suffered a fracture to her T12 vertebra,
and a disc injury to T11/T12 and perhaps T9/T10. At the time of trial she was
suffering from diffuse myofascial discomfort in her lower back, sleep
disturbance, depression and deconditioning. The injuries interfered with
recreational activities she enjoyed prior to the accident, such as dancing,
gardening and cycling, and made her work as a cleaner difficult.

[52]        
The defendant submits that an appropriate award for non-pecuniary
damages is in the range of $20,000 to $25,000. He relies on the following decisions:

a)    Ward v. Zhu,
2012 BCSC 782 ($20,000);

b)    Gulbrandsen
v. Mohr, 2012 BCSC 1869 ($25,000);

c)     Hill v.
Swayne, 2012 BCSC 1126 ($20,000);

d)    Lumley v.
Balilo, 2013 BCSC 1052 ($25,000);

e)    Mirsaeidi v.
Coleman, 2014 BCSC 415 ($25,000);

f)      Gallagher
v. Olsson, 2001 BCSC 589 ($13,000); and

g)    Lees v.
Compton, 2013 BCSC 1015 ($45,000).

[53]        
In Ward, the plaintiff suffered injuries when she fell on her
back when the bus she was on stopped suddenly. The plaintiff, who was 30 years
old at the time of trial, reported continued neck, shoulder and back problems. The
trial judge found that her enjoyment of life had not been significantly
compromised by the accident and found some problems with the plaintiff’s
credibility, however, accepted that the plaintiff had experienced some
difficulties or discomfort running, walking, sitting for prolonged periods of
time and performing household tasks.

[54]        
In Gulbrandsen, the plaintiff suffered a soft tissue injury in a
motor vehicle accident. After the accident she experienced dizziness that
resolved within a few weeks of the accident and ongoing upper back pain. There
was little evidence of how the injury caused suffering or loss of enjoyment of
life and the trial judge made several negative credibility findings regarding
the plaintiff.

[55]        
In Hill, the plaintiff suffered injuries to his neck, back and
paracervical muscles in a motor vehicle accident. The plaintiff, who was 35
years old at the time of trial, continued to have intermittent back pain and
problems sleeping, but the injury was not expected to be permanent. The trial
judge found that the injuries had minimally impacted his lifestyle and made his
work as a roofer difficult, but that his pain was modest and the duration of
his discomfort was uncertain.

[56]        
In Lumley, the plaintiff was 22 years old at the time of
the motor vehicle accident in which she suffered soft tissue injuries to her
neck and back. Prior to the accident she was a physically active person who
participated in many sports. At the time of trial she continued to have
stiffness and some mild discomfort in her neck and muscle tension headaches
from time to time. The trial judge found that her injuries did not incapacitate
her from work, or from any of the social and recreational activities she
enjoyed before the accident, although discomfort in her neck and back caused
her to limit her physical activities for a few months following the accident.

[57]        
In Mirsaeidi, the plaintiff was 27 years old at the time of trial.
Prior to the motor vehicle accident he was active in various sports and outdoor
activities and played soccer at a competitive level. The plaintiff had neck
pain and headaches, which resolved within three months of the accident, and back
pain for at least one year, with occasional back pain after that time. While
the plaintiff continued playing competitive soccer after the accident, the
trial judge found that he experienced pain while doing so.

[58]        
In Gallagher, the plaintiff was 29 years old at the time of trial
and had worked in several different jobs involving manual labour. Following the
motor vehicle accident the plaintiff was off work for some five months,
experienced considerable pain in his neck, shoulder, and temporomandibular jaw
and experienced headaches. The trial judge found that there had been almost
full recovery of the physical injuries within six months of the accident and
was not satisfied that the plaintiff’s condition at the time of trial was causally
linked to the accident. Again, the trial judge found there were problems with
the reliability of the plaintiff’s evidence.

[59]        
In Lees, the plaintiff was 20 years old at the time of the motor
vehicle accident in which she suffered soft tissue injuries to her neck and
back. Prior to the accident the plaintiff was an active person in good health
who played in a competitive field hockey league. At the time of trial she
continued to experience pain in her neck and upper back, headaches and sleep
disturbances and it was expected she would experience some of her symptoms into
the foreseeable future. The trial judge found that there were significant
questions concerning the plaintiff’s credibility and that her evidence
regarding the impact the injuries had on her enjoyment of life must be viewed
with caution.

[60]        
I note that in several of the cases referred to by the defendant
negative credibility findings called into question the veracity of the
plaintiff’s claims of suffering. That is not a concern in this case. As
previously stated, I have no concerns accepting the plaintiff’s evidence
in its entirety.

[61]        
In this case, the plaintiff suffered soft tissue injuries to his neck
and back as well as injuries to his hip and chest. Those injuries resolved
within 3 months. He also suffered a mild compression fracture to his T-4
vertebra that had fully healed within 7 months. He continues to have
intermittent stiffness and mild pain in his upper back. However, I am not
persuaded that any residual symptoms are likely to persist in any significant
way.

[62]        
The plaintiff’s injuries have interfered with his ability and enjoyment
to provide care for his child. The plaintiff testified that he often struggles
to carry his daughter, put her in her car seat and bathe her. Although he
carried out several renovation projects prior to the Accident, the plaintiff
does not think he will be able to carry out renovation work on his new home
without hiring people to assist him. He continues to experience discomfort when
travelling for his work.

[63]        
After considering all of the evidence including the plaintiff’s age, the
effect that his Accident-related injuries have had on him and his lifestyle,
the prognosis that he is likely to have occasional ongoing discomfort and will
have to be careful with his back, and after considering the submissions of
counsel and the case authorities, I find that an appropriate award for
non-pecuniary damages in this case is $45,000.

Past Wage Loss/Loss of Opportunity

[64]        
As a result of the Accident, the plaintiff missed 130 regular hours of
work at Carter Motors. His pay rate was $31.25 per hour. I find that the
plaintiff is entitled to $4,062.50 in respect of lost regular time pay.

[65]        
In addition I find that, but for the Accident, the plaintiff would
have earned bonus pay under Carter Motor’s flat-rate pay system due to his
demonstrated pre-Accident productivity. Although it is difficult to determine
with precision how much he would have earned before leaving Carter Motors in December 2013,
I am satisfied that it would have been approximately an additional 15% of
what he earned between the date of the Accident and the end of 2012. The
evidence satisfies me that by the beginning of 2013 the plaintiff was
physically capable of once again reaping the benefits of the flat rate pay
system.

[66]        
The plaintiff’s actual earnings from Carter Honda during the relevant years
bear that out:

[67]        
Considering the foregoing as well as the contingency that the change in
his lifestyle as a result of his marriage and the birth of his daughter would
have reduced his incentive to work as much as he did previously, I am awarding
a lump sum of $15,000 for loss of bonus pay opportunity under Carter Honda’s pay
system.

[68]        
Accordingly, the plaintiff is entitled to an award of $19,062.50 in
respect of his past wage loss and loss of opportunity.

Future Loss of Earning Capacity

[69]        
In Bulpitt, I stated the following, at paras. 110 and 111:

[110]    An award for loss of earning capacity is made in
recognition that a plaintiff’s capacity to earn income is an asset that has
been taken away. If a plaintiff’s permanent injury limits him in his capacity
to perform certain activities and consequently impairs his income earning
capacity, he is entitled to compensation: Rosvold v. Dunlop 2001 BCCA 1
at para. 8. The plaintiff must demonstrate both impairment to his earning
capacity and a real and substantial possibility that the impairment will result
in a pecuniary loss. The standard of proof is simple probability, not the
balance of probabilities: Drodge v. Kozak, 2011 BCSC 1316 at paras.
147-148.

[111]    Once that threshold is
met, the plaintiff may prove the amount of loss by one of two calculation
approaches, as set out by the British Columbia Court of Appeal in: Perren v.
Lalari, 2010 BCCA 140…[the earnings approach or the capital asset
approach]

[70]        
In assessing whether the plaintiff is entitled to an award for future
loss of earning capacity, I must first determine whether he has proven a
real and substantial possibility that his earning capacity has been impaired. In
my view, he has not done so.

[71]        
Neither the lay nor the medical evidence supports a finding of an
increased chance of the plaintiff’s income earning capacity being impaired or
that his future employment has been jeopardized in any way by the Accident.

[72]        
Any lingering back symptoms will not impair his ability to earn an
income. At most, the evidence suggests that his ongoing back symptoms might
result in some discomfort to him. I find that any small potential for loss
of earning capacity that may exist is as likely to be attributable to the
plaintiff’s pre-existing right shoulder injury as it is to back stiffness or
pain. In my view, the evidence falls far short of establishing a real and
substantial possibility that the plaintiff’s earning capacity has been impaired
by any Accident-related injury.

[73]        
I find that the plaintiff’s reason for accepting the job at Tesla Motors
in December 2013 was his interest in Tesla’s technology and the
opportunities he perceives in the electric car industry. It was not because he
was unable to continue working as a mechanic at Carter Motors or because he
wished to avoid aggravating his Accident-caused back injury. In my view, he
would have taken the Tesla Motors position regardless of the Accident. The
overtime pay the plaintiff is receiving at Tesla Motors offsets the higher
hourly pay and bonus opportunities that were available to him at Carter Motors.

Cost of Future Care

[74]        
The plaintiff suggests an award of $2,500 is appropriate under this head
of damages.

[75]        
Dr. Werry recommends that the plaintiff begin an exercise-oriented
rehabilitation program comprising a 6-week series of exercise session with a
therapist on a once or twice per week basis.

[76]        
The plaintiff testified that he would gladly participate in such an
exercise program if it was made available to him.

[77]        
Counsel for the defendant conceded during his closing submissions that
an award of $2,500 to cover the cost of an exercise-oriented physical
rehabilitation program is reasonable. Accordingly, I award the sum of
$2,500 in respect of the cost of future care.

Special Damages

[78]        
The parties agreed that the plaintiff is entitled to recover special
damages in the amount of $651.69.

Conclusion

[79]        
The plaintiff is entitled to judgment against the defendant in the
following amounts:

[80]        
Subject to any further submissions the parties wish to make, the
plaintiff is entitled to his costs at scale B.

__________ “G.C.
Weatherill, J.”__________
G.C. Weatherill, J.