IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140721

Docket: M072885

Registry:
Vancouver

Between:

Mohsen Saadati, by
his Litigation Guardian, Sara Zarei

Plaintiff

And

Grant Iain
Moorhead, Able Leasing (2001) Ltd. and

Thi Hao Hoang

Defendants

Before:
The Honourable Mr. Justice Funt

Reasons for Judgment

Table of Contents

I.  INTRODUCTION. 3

II.  Injuries Arising from the
July 2005 Accident. 4

A.  The
Accident 4

B.  Physical
Injuries Arising From The Accident 5

C.  Psychological
Injuries Arising from the July 5, 2005 Accident 9

III.  Injuries Arising From
The September 17, 2005 Accident. 12

A.  The
Effect of the September 17, 2005 Accident on the Injuries Arising from the
July 5, 2005 Accident 14

IV.  Assessment of Damages. 15

A.  Non-pecuniary. 15

B.  Past
Wage Loss. 16

V.  CONCLUSION. 19

I.                
INTRODUCTION

[1]            
This action is the result of an accident that occurred around 10:00 p.m.
on July 5, 2005. At that time the plaintiff was driving a 2000
Freightliner tractor-truck (without trailer) on Front Street approaching Begbie
Street in New Westminster when the plaintiff’s vehicle was hit by a Hummer (a
truck-like sports utility vehicle) driven by the defendant, Mr. Moorhead.
The accident resulted in the plaintiff’s tractor-truck sustaining approximately
$10,000 in damage, primarily to the right front side.

[2]            
The plaintiff has been involved in four other motor vehicle accidents.
One predates the accident at issue and occurred on January 28, 2003. The
other three occurred afterwards, on September 17, 2005, March 28,
2008 and March 23, 2009.

[3]            
The plaintiff filed his Writ of Summons and Statement of Claim after the
September 17, 2005 accident but before the March 28, 2008 and March 23,
2009 accidents. The evidence at trial focused on injuries suffered in the July 5,
2005 accident and the effect that the September 17, 2005 accident had on
those injuries. Complicating the evidentiary aspects is the fact that the
plaintiff was declared mentally incompetent in 2010.

[4]            
In argument, plaintiff’s counsel stated that the plaintiff was not
asking for compensation from the defendants for the “rest of the (plaintiff’s)
life” or “years and years and years”. Specifically, the plaintiff seeks damages
in the range of $244,000 to $294,000, composed of:

[5]            
The defendants admit liability for the accident but say that the
plaintiff suffered no damages as a result.

[6]            
For the reasons that follow the Court awards the plaintiff $100,000.

II.              
Injuries Arising from the July 2005 Accident

A.             
The Accident

[7]            
The plaintiff’s cousin, Mr. Reza Saadati, was in the tractor-truck’s
sleeper berth at the time of the accident. He did not see the accident occur
but testified he heard the plaintiff say immediately after the accident, “my
head, my head”.

[8]            
The defendants challenged the reliability of Mr. Reza Saadati’s
testimony. In particular, the defendants questioned Mr. Reza Saadati’s
reliability as to whether the plaintiff said “my head, my head” at the time of
the accident.

[9]            
A key attack was based on an interview by an investigator hired by the
defendants, Mr. Gurj Mangat. Mr. Mangat interviewed Mr. Reza
Saadati at a neighbourhood coffee shop approximately a month before trial. Immediately
after the interview he prepared and sent to defence counsel an email report. He
did not record the interview. He did not have Mr. Reza Saadati sign a
statement. He did not provide Mr. Reza Saadati with a copy of his notes or
reporting email. Mr. Mangat agreed that he did not ask Mr. Reza
Saadati whether he had heard the plaintiff say “my head, my head”. Despite some
difficulties with respect to Mr. Reza Saadati’s recollection of matters,
Mr. Mangat’s testimony and his interview of Mr. Reza Saadati are not
sufficiently cogent to discredit Mr. Reza Saadati’s testimony.

[10]        
Police and ambulance personnel attended the accidence scene. The
ambulance crew noted that the plaintiff was “shaken emotional”. The ambulance
crew did not observe any injuries that warranted taking the plaintiff to the
hospital. A Glasgow Coma Score of 15 was recorded (in other words no abnormal
signs which would reflect a brain injury).

[11]        
One of the attending police officers, Officer Correa, recorded in his
police report “02” or “agitated” with respect to the plaintiff. He recorded no
apparent injuries.

[12]        
The ambulance crew left the scene of the accident after approximately 30
minutes. Shortly after, Mr. Reza Saadati and the plaintiff went to the
emergency room of a nearby hospital “to be checked out”. Mr. Reza Saadati
could not recall how they got to the hospital. The plaintiff was not kept for
observation.

[13]        
Two days later, on July 7, 2005 the plaintiff provided a written
statement to Mr. Wong, an Insurance Corporation of British Columbia (“ICBC”)
employee. As part of the statement the plaintiff wrote:

“I was going 30-35 km/hr.”

“When I got to Begbie
I felt sort of an explosion, I didn’t know what happened”

“My head, neck and back and
left upper leg are sore”

“I’m missing work”

“About 2-1/2 years ago I got
injured. I still had pain in the right side of my shoulder and low back
and neck when this accident on 5 July 05 occurred.”

B.             
Physical Injuries Arising From The Accident

[14]        
As previously noted, the plaintiff was in a prior accident on January 28,
2003. The same day as that accident the plaintiff went to Dr. S. Milne for
treatment and subsequently Dr. Milne became his family physician (his
previous physician was Dr. K.S. Gill). After the January 28, 2003
accident the plaintiff had a variety of complaints relating to his back, neck,
arms, hands and legs. He also complained of headaches. He saw Dr. Milne over
30 times between the January 28, 2003 and the July 5, 2005 accidents
and key summary extracts of Dr. Milne’s clinical notes were accepted as
evidence.

[15]        
At trial, the parties filed an Agreed Statement of Facts that included a
detailed list of prescribed medications that the plaintiff received throughout
the period between the January 28, 2003 and the July 5, 2005 accidents.
From the extensive list it is apparent that the plaintiff was prescribed a
variety of painkillers and muscle relaxants (such as Tylenol #3 with codeine,
Naprosyn, and Ratio-Cyclobenzaprine).

[16]        
The plaintiff also received physiotherapy from Ms. Kari Barnett, a
kinesiologist with Karp Rehabilitation.

[17]        
In the spring of 2004, Dr. Milne seeking assistance to determine
the appropriate treatment for the plaintiff, referred the plaintiff to Dr. A.L.
Chu, a physiatrist, “for an assessment of the [plaintiff’s] right worse than
left low back pain, right-sided neck and shoulder girdle pain and headaches
following the [January 28, 2003 accident]”.

[18]        
In a May 6, 2004 reporting letter to Dr. Milne, Dr. Chu
stated (in part):

Mr. Saadati was involved in a motor vehicle accident a
year and a half ago. He probably suffered some soft tissue injuries to his back
and neck with a whiplash injury but he has gone on to develop a significant
chronic pain syndrome. The widespread nature of the pain is a poor prognostic
indicator. He also has some emotional and psychological difficulties with the
pain.

I think the majority of the pain is probably soft tissue
myofascial pain. I do not think there are significant mechanical problems
with the back or neck. He has pretty good range of motion and the CT scan was
really quite unremarkable.

I think the best we can do is to
control the secondary problems such as the sleep disturbance and try to move
him on to his own regular exercise program. He is already taking Amitriptyline.
You might want to try a little bit more dose or in combination with Flexeril.

[19]        
Dr. Milne’s subsequent observations and the plaintiff’s complaints
to him are consistent with Dr. Chu’s opinion.

[20]        
It is clear that prior to July 5, 2005, the plaintiff reported
experiencing headaches and sleeplessness. However, the medical evidence does
not show that the plaintiff reported or experienced cognitive difficulties, such
as memory problems or slowed speech, nor were such symptoms observed by any
medical professional.

[21]        
After the July 5, 2005 accident, the plaintiff returned to Dr. Gill
(the plaintiff’s family physician prior to switching to Dr. Milne after
the January 28, 2003 accident). Dr. Gill prepared a medical-legal
report and gave expert medical testimony at trial.

[22]        
In his report, Dr. Gill opines that the plaintiff developed “a
chronic pain condition” as a result of the injuries suffered in the July 5,
2005 accident. At the time of preparing his report Dr. Gill was not aware
that the plaintiff had been treated by Dr. Milne since the January 28,
2003 accident. He assumed that any injuries suffered in the January 28,
2003 accident had resolved quickly. For this reason, the Court gives no weight
to Dr. Gill’s opinion that the chronic pain was caused in whole or in part
by the July 5, 2005 accident.

[23]             
Dr. Gill also diagnosed the
plaintiff as having suffered a concussion as a consequence of the July 5,
2005 accident. This diagnosis was based on the plaintiff telling him about his
irritability, memory and concentration problems. Earlier in these proceedings,
I ruled that the plaintiff’s complaints to Dr. Gill were inadmissible
hearsay, see Saadati v. Moorhead, 2013 BCSC 636. I give little
weight to Dr. Gill’s opinion that the plaintiff suffered a concussion as a
result of the July 5, 2005 accident; although some weight is given because
the plaintiff’s complaints to Dr. Gill are consistent with the testimony of the
plaintiff’s family and friends.

[24]        
In August 2005 Dr. Gill referred the plaintiff to the G.F.
Strong Rehabilitation Centre for assessment and treatment. No admissible
evidence of any assessment conducted by staff at the G.F. Strong Rehabilitation
Centre was placed before the Court.

[25]        
Dr. Mok, a psychiatrist, provided a medical-legal report and
testified at trial. He did not diagnose the plaintiff with a concussion. During
his examination in chief, he testified that the July 5, 2005 accident may
have played some role in the plaintiff’s chronic pain. In cross-examination Dr. Mok
acknowledged that with respect to the chronic pain diagnosis he could not say
whether the July 5, 2005 accident made the plaintiff’s pain better or
worse. In his report he stated that he would “defer to the expertise of my
colleagues in medicine and surgery with regard to [the plaintiff’s] physical
prognosis”.

[26]        
Dr. A. Prout, a neurologist, provided medical-legal report and
provided expert testimony at trial. In his opinion the July 5, 2005
accident did not result in a concussion or other brain injury. In forming his
opinion he relied primarily on the clinical and medical records.

[27]        
In cross-examination Dr. Prout said he would consider the
possibility of a concussion based on the plaintiff’s personality change in the
period after the July 5, 2005 accident and before the September 17, 2005
accident but that in order to formulate a diagnosis of a concussion he would, at
the least, need evidence that the accident caused either a loss of
consciousness, a loss of memory, or mental dysfunction at the time of the
accident.

[28]        
As noted, there was some evidence the plaintiff experienced some mental
dysfunction at the scene of the accident in that Officer Correa recorded the
plaintiff to be “agitated” and the ambulance crew described him as “emotional
shaken” despite his favourable Glasgow Coma score. This evidence, however, is
not sufficient to satisfy the Court that on the balance of probabilities the
plaintiff necessarily suffered a concussion in the July 5, 2005 accident.

[29]        
In contrast with what he told medical professionals, before July 5, 2005
the plaintiff did not complain about physical injury to his friends and family.
The defendants say that this creates a significant issue for the Court, because
if the injuries are as the plaintiff disclosed to the medical professionals
there is no evidence of any physical injury arising from the July 5, 2005
accident. The defendants say, on the other hand, if what the plaintiff led his
family and friends to believe – that he was physically fine – is true, then he
must have been fabricating the complaints he made to medical professionals in
the pursuit of secondary gain.

[30]        
Plaintiff’s counsel argued that it was not an “either or” proposition.
It is plausible that a person would describe his or her pains to a doctor while
hiding such pains from his or her family and friends. Plaintiff’s counsel
stated that the defendants’ allegations of secondary gain (financial) as
motivating the plaintiff’s complaints should be treated by the Court with
caution, especially in light of no evidence as to whether any claim arising
from the January 28, 2003 accident was settled and, if so, when it was
settled.

[31]        
The law presumes that a person is honest and a good neighbour. With
regard to the allegations of secondary gain I find that the evidence
presented falls short of establishing that the plaintiff misled the medical
professionals through his complaints. This finding is based, in part, on the
fact that the medical professionals, in particular Dr. Milne, continued to
prescribe medications and refer the plaintiff to other professionals. I find
that the plaintiff simply attempted to hide his physical complaints from his
friends and family while seeking assistance from medical professionals.

[32]        
In conclusion, the Court finds that the plaintiff suffered no further
physical injuries nor any aggravation of pre-existing physical injuries related
to his significant chronic pain as a result of the July 5, 2005 accident. The
plaintiff’s complaints to his medical professionals, the prescriptions he
received, and Dr. Chu’s opinion, in particular, support the Court finding
that all of the physical injuries of which the plaintiff complained after the
accident were present prior to July 5, 2005. I find that prior to the
July 5, 2005 accident the plaintiff had developed a significant chronic
pain syndrome (as described by Dr. Chu in his May 6, 2004 report)
that had not resolved prior to the July 5, 2005 accident.

C.             
Psychological Injuries Arising from the July 5, 2005 Accident

[33]        
The Court does find that the plaintiff suffered psychological injury as
a result of the July 5, 2005 accident. In reaching this conclusion the Court
has considered that although the particular medical cause of the psychological
injury is not known the testimony of the plaintiff’s family and friends leads
to finding that the July 5, 2005 accident, for which the defendants have
admitted liability, caused a psychological injury. This finding is in
accordance with the direction provided by the Supreme Court of Canada in Clements v. Clements, 2012 SCC 32, at para. 46:

As a general rule, a plaintiff
cannot succeed unless she shows as a matter of fact that she would not have
suffered the loss “but for” the negligent act or acts of the defendant. A trial
judge is to take a robust and pragmatic approach to determining if a plaintiff
has established that the defendant’s negligence caused her loss. Scientific
proof of causation is not required.

[34]        
As previously stated, the plaintiff saw Dr. Milne more than 30
times prior to the July 5, 2005 accident. Dr. Milne testified that
the plaintiff had not reported mood or memory problems to him or his office and
that if he had done so it would be recorded in Dr. Milne’s notes. He testified
that he prescribed Amitriptyline to elevate the plaintiff’s pain threshold and
not as an anti-depressant. If the plaintiff did have memory problems,
pragmatically viewed, Dr. Milne would have observed such problems.

[35]        
I have noted that on page 4 of Dr. Chu’s May 6, 2004 report he
recorded that the plaintiff had “some emotional and psychological difficulties
with the pain”. Dr. Chu described this as a note to himself. He testified
it was not a diagnosis but a reminder that there was the possibility that psychological
factors could be contributing to the plaintiff’s reporting of widespread pain.

[36]        
Specifically, Dr. Chu testified that he was not aware of any issues
with respect to the plaintiff’s attention, memory, and concentration prior to
the July 5, 2005 accident.

[37]        
Similarly, Dr.Gill’s comment in cross-examination that not sleeping well
could cause memory problems does not support a finding that the plaintiff was
suffering from a psychological injury prior to the July 5, 2005 accident.

[38]        
 The fact that the July 5, 2005 accident resulted in significant
changes to the plaintiff’s personality and created cognitive difficulties was apparent
to his family and friends.

[39]        
Ms. Sara Zarei is the plaintiff’s niece and a very accomplished
person. She now lives in San Diego, California and works for the U.S.
Department of Defense as a mathematician. Ms. Zarei is also a part-time
faculty instructor at San Diego State University and is undertaking
post-doctoral studies.

[40]        
When Ms. Zarei immigrated to Canada in 1996 (at sixteen years of
age) her father remained in Iran. She described the plaintiff as “like a father”
to her. He helped her learn English upon her arrival in Canada and helped her
with her studies. He guided her in her late teenage years and they became very
close.

[41]        
In 2000, Ms. Zarei moved to California but visited Vancouver 3 or 4
times per year to visit her sister, until her sister’s most tragic death in
July 2006. Ms. Zarei saw the plaintiff during each of these visits. She also
testified that she would speak by phone with the plaintiff at least twice a
week.

[42]        
Ms. Zarei was a forthright, careful and candid witness. She readily
admitted that she was not aware of the January 28, 2003 accident prior to
this litigation. During the period after her move to California in 2000 until
the July 5, 2005 accident Ms. Zarei was not aware that the plaintiff
had any medical concerns other than some back pain which she understood was “nothing
severe”. She was not aware that the plaintiff had any serious pains or
headaches.

[43]        
Ms. Zarei understood that during the period from 2000 to July 5,
2005 the plaintiff had a business of buying and selling cars and also his own
company operating delivery trucks. She knew very few details. The other
witnesses who were either family or friends also were not aware of the
plaintiff having any significant health concerns or the details of the
plaintiff’s financial affairs.

[44]        
Ms. Zarei described the plaintiff, prior to the July 5, 2005
accident, as “funny and energetic”, “charming”, always with the “most
up-to-date jokes”, and bringing “energy” into any group. This description of
the plaintiff’s disposition accords with the testimony of the other witnesses
who were either family or friends.

[45]        
Ms. Zarei testified that after the July 5, 2005 accident the
plaintiff had “very slow” speech, was not “charming as before” and was a “totally
different person”. During this period Ms. Zarei would telephone the
plaintiff at least once a week. The plaintiff “wasn’t able to talk too much”,
especially in the first days after the July 5, 2005 accident. She could
not recall whether she visited him during this period.

[46]        
Ms. Zoleikha Alanvar, the plaintiff’s spouse at the time of the July 5,
2005 accident also testified. Although they are now divorced, she was married
to the plaintiff for many years and they have 2 sons together.

[47]        
Ms. Alanvar testified that after the July 5, 2005 accident the
plaintiff was completely different “especially with the youngest boy”. He had
mood swings. The plaintiff complained of “huge headaches”.

[48]        
She says that the plaintiff’s behaviour was so different after the July 5,
2005 accident that she suspected that the plaintiff might be having an
extramarital affair. At trial she readily added that this suspicion was not
correct because he was not that type of man. In sum, she says the plaintiff was
no longer the “active, happy, cheerful, outgoing, very nice” man she described
the plaintiff to be prior to the July 5, 2005 accident.

[49]        
The testimony of other family and friends was generally consistent with Ms. Zarei’s
and Ms. Alanvar’s testimony.

[50]        
Taking a “robust and pragmatic” approach, I find that the July 5,
2005 accident caused the plaintiff psychological injuries, including
personality change and cognitive difficulties, despite there not being enough
evidence to satisfy me that there was a physical injury or concussion. The
plaintiff’s personality change and cognitive difficulties such as slowed
speech, which could not be hidden from his friends and family, are observable
consequences of the plaintiff’s psychological injuries.

III.            
Injuries Arising From The September 17, 2005 Accident

[51]        
Despite his physical and mental condition, by September 2005 the
plaintiff could again drive (co-driving long hauls); many people with cognitive
difficulties drive.

[52]        
Both parties acknowledge that the September 17, 2005 accident was a
serious accident. With respect to the September 17, 2005 accident in the
Agreed Statement of Facts the parties agreed:

38.       In the September 17,
2005 accident, the plaintiff was a passenger in a tractor trailer when the
trailer rolled onto the driver side. There were no other vehicles involved in
this accident.

39.       The plaintiff was
the registered owner of the single vehicle involved in the September 17,
2005 accident.

40.       Following the September 17,
2005 accident the plaintiff was brought by ambulance to Golden Medical Clinic.

41.       Dr. Barb Picken
provided to MSP Claims Department a summary of emergency care by Golden Medical
Clinic to the plaintiff by letter dated September 21, 2005 (the “Letter”).

42.       In the Letter, Dr. Picken
told MSP Claims Department that the plaintiff sustained moderately a (sic) severe
head injury in the September 17, 2005 accident.

43.       In the Letter, Dr. Picken
told MSP Claims Department that the plaintiff had a Glasgow Coma Score of 8 on
admission to Golden Medical Clinic.

44.       Following admittance
of the plaintiff to Golden Medical Clinic, he was flown by air ambulance from
Golden Hospital to Calgary.

45.       Following the September 17,
2005 accident, the Workers’ Compensation Board accepted a claim by the
plaintiff for the following injuries:

46.       Following the September 17,
2005 accident, the plaintiff completed an Independent Operator’s Application
for Compensation and submitted it to the Workers’ Compensation Board for
consideration (the “Application”).

47.       The plaintiff
reported in the Application that the cause of the September 17, 2005
accident was “I am sure the cause of the accident was involving chassie and
container, from my knowledge there was not any speeding. The only cause of
accident was chassie.” (verbatim)

(stylistic changes for consistency made by the Court)

[53]        
Despite the severity of the September 17, 2005 accident it is
clear, based on a September 12, 2007 traffic ticket, that the plaintiff
was certainly driving again by that time.

A.             
The Effect of the September 17, 2005 Accident on the Injuries
Arising from the July 5, 2005 Accident

[54]        
I accept that after the September 17, 2005, the plaintiff’s
condition worsened. As Ms. Zarei described: the plaintiff was having
physical pain, “more depression”, and “couldn’t continue the conversation with
us now even getting worse”.

[55]        
In re-examination Dr. Prout testified that if it were assumed that
the July 5, 2005 accident resulted in a mild concussion, that the September 17,
2005 concussion would “overwhelm” the July 5, 2005 concussion. His opinion
is that the severity of the September 17, 2005 concussion would make the July 5,
2005 concussion “unmeasurable” and that, in other words, the July 5, 2005
concussion could have no bearing on the plaintiff’s psychological injury after
the September 17, 2005 accident.

[56]        
The plaintiff argues that the injury suffered in the July 5, 2005
accident is indivisible from any injury arising from the September 17,
2005 accident.

[57]        
An indivisible injury was addressed by our Court of Appeal in Bradley
v. Groves, 2010 BCCA 361. In reviewing the law relating to indivisible
injuries the court stated that the aggravation of a pre-existing
tortiously-caused injury should be considered as an indivisible injury. The court
also observed (para. 37):

It may be that in some cases, earlier injury and later injury
to the same region of the body are divisible. While it will lie for the trial
judge to decide in the circumstances of each case, it is difficult to see how
the worsening of a single injury could be divided up.

[58]        
While Dr. Prout’s opinion that a moderate or severe concussion
would overwhelm a mild concussion gave the Court pause, the Court is satisfied
that the psychological injury arising from the July 5, 2005 is indivisible
from any psychological injury the plaintiff had after September 17, 2005.
Pragmatically viewed, the cause of the change to the plaintiff’s personality
and his cognitive difficulties cannot be divided based on the events before and
after September 17, 2005. Consequently, the assessment of which portion of
the injury arose from July 5, 2005 accident and which portion arose from
the September 17, 2005 accident “is a matter of indifference to the
plaintiff, who may claim the entire amount from any defendant”, Bradley,
at para. 34.

[59]        
In making this determination I have rejected the defendants’
argument that the September 17, 2005 accident was a novus actus
interveniens. The September 17, 2005 accident simply was not so
substantially responsible for the plaintiff’s personality change and cognitive
difficulties so as to “cut off the liability” of the defendant, see Roberge
Bros. Transport Ltd. v. Postnikoff, 44 Sask R. 297 at para. 45.

[60]        
I have also rejected the defendants’ argument that the plaintiff was
required to have pleaded that there was an indivisible injury. As is typical in
personal injury litigation, the defendants had the opportunity to request
particulars and they should not have been taken by surprise by this issue.

[61]        
The Court is satisfied that the psychological injury suffered by the
plaintiff in the July 5, 2005 accident is indivisible from any
psychological injury suffered in the September 17, 2005 accident.

IV.           
Assessment of Damages

A.             
Non-pecuniary

[62]        
In considering the award for non-pecuniary damages I have used March 28,
2008 as an appropriate end date because it was on that date that the plaintiff
was involved in another very serious motor vehicle accident. It was apparent
shortly after July 5, 2005 that the plaintiff was not his former self and
immediately before March 28, 2008 there was no reason to anticipate any
significant recovery.

[63]        
In assessing an appropriate non-pecuniary award I accept that
during the period from July 5, 2005 to March 28, 2008 the plaintiff
had changed from the “funny”, “charming” and energetic man he was before July 5,
2005. He had cognitive difficulties such as slowed speech. He had mood swings.
He was irritable. His close personal relationships with his friends and family
dissolved.

[64]        
Plaintiff’s counsel referred the Court in particular to Brown v.
Lalani, 2005 BCSC 785 and Repole v. Bakker, 2007 BCSC 592 as support
for an award of $100,000 to $150,000.

[65]        
Although these decisions are useful guides, the plaintiff’s
circumstances are unique. Having particular regard to the plaintiff’s
personality change, his loss of close personal relationships with family and
friends, his age, and the period involved, the Court awards $100,000 as fair
and just in the circumstances. He was a changed man with his irritability
likely reflecting a dark realization that he was not the man he once was.

[66]        
The defendants submitted that benefits the plaintiff received from the
Workers’ Compensation Board after September 17, 2005 “fully compensate him
for any wage loss that could have arisen.” They stated that any award should
take into account the benefits received from the Workers’ Compensation Board
because otherwise a double recovery would result.

[67]        
An award for non-pecuniary damages is distinct from an award for past
wage loss, loss of future earning capacity, special damages or the cost of
future care. The Court will not reduce the non-pecuniary award to account for
any benefits received by the plaintiff from the Workers’ Compensation Board.
Such accords with s. 5(5) of the Workers Compensation Act, RSBC, 1996 c.
492.

B.             
Past Wage Loss

[68]        
The plaintiff seeks an award of
$144,000 for past wage loss based on a loss of $6,000 per month over a period
of 24 months.

[69]        
The $6,000 per month revenue
figure was based on the testimony of a principal of a large trucking company, Butterworth’s
Transport Ltd. (“Butterworth’s”), that a typical truck driver would generally
enjoy revenue of $5,000 to $7,000 per month. The monthly revenue is before the
deduction of most expenses.

[70]        
The 24 months is plaintiff’s
counsel’s estimate of the number of months the plaintiff was not able to drive
between the July 5, 2005 and the March 28, 2008 accidents. It is known that on
September 12, 2007 approximately 26 months after the July 5, 2005 accident the
plaintiff received a traffic ticket.

[71]        
It is also known that the
plaintiff, with a co-driver, was hauling loads for Butterworth’s in September
2005. Plaintiff’s counsel conceded, quite properly, that the plaintiff must
have been driving some of the time in order to comply with the applicable
trucking regulations. Accordingly, in at least one of the 26 months the
plaintiff was driving. Without the plaintiff able to testify at trial,
plaintiff’s counsel’s 24 months estimate is a good faith estimate.

[72]        
I also note that the plaintiff was
driving on November 30, 2007, March 13, 2008, March 18, 2008 and
March 23, 2008 because he received traffic tickets on each of those days.
Driving logs also show that the plaintiff was driving regularly from February 18,
2008 until May 26, 2008 for a Chohan Carriers Ltd. In sum, the plaintiff
was also driving in the months before and some of the months following the March 28,
2008 accident.

[73]        
As noted above, the Agreed Statement
of Facts included that the plaintiff received benefits from the Workers’
Compensation Board for concussions and injuries to his back and neck that were the
result of the September 17, 2005 accident. The monetary benefits received
were $5,970 and $16,971 for 2005 and 2006 respectively.

[74]        
It is also clear that the
plaintiff earned very little income during his 2001 to 2004 taxation years. The
plaintiff did not report any income for his 2001, 2002 and 2003 taxation years
and for 2004 only $12,796 in taxable capital gains was reported. In sum, his
tax returns for the years prior to the accident show very little income. I note
that in 2007 the plaintiff reported $22,500 in employment income.

[75]        
There was evidence that the plaintiff during the years prior to
the July 5, 2005 accident did not appear to
be in financial difficulties and was able to provide for his wife and two sons.
The Court will not impute income to the plaintiff for these years. He filed tax
returns which he would have certified to be correct (the Income Tax Act,
RSC, 1985, c. 1(5^th supp.) also provides significant penalties for a
false tax return). As many people do, he may have kept his financial affairs to
himself. The imputation of income would be tantamount to finding possibly gross
negligence or tax evasion which is unwarranted, especially having regard to the
fact that the plaintiff is not able to testify to explain matters and defend
his reputation.

[76]        
In Hoy v. Williams, 2014 BCSC 234, Justice Kent set forth
the test to determine whether an award for past income loss should be made.

[141]    Compensation
for past loss of earning capacity is to be based on what the plaintiff would
have, not could have, earned but for the injury that was sustained: Rowe v.
Bobell Express Ltd., 2005 BCCA 141 at para. 30;
M.B. v. British Columbia, 2003 SCC
53 at para. 49. The burden of proof of actual past events is a balance of
probabilities. An assessment of loss of both past and future earning capacity
involves consideration of hypothetical events. The plaintiff is not required to
prove these hypothetical events on a balance of probabilities. The future or
hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation: Athey v. Leonati at
para. 27; Morlan v. Barrett, 2012
BCCA 66 at para. 38.

[77]        
As stated previously, I have found that the July 5, 2005
accident did not aggravate the plaintiff’s pre-existing physical injuries but
that it did cause a personality change and cognitive difficulties.

[78]        
The plaintiff has not provided sufficient evidence that “by reason of
his [psychological] injuries, [he was] unable to do many things that, but for
his injuries, he could have done to earn income” (Rowe v. Bobell Express
Ltd., 2005 BCCA 141, at para. 34) or would have earned income.

[79]        
The Court, therefore, dismisses the plaintiff’s claim for an award for
past wage loss.

V.             
CONCLUSION

[80]        
The Plaintiff is awarded $100,000 as non-pecuniary damages. The claim
for past wage loss is dismissed.

[81]        
If counsel wish to speak to costs, they may contact Trial Scheduling to
arrange a 9:00 a.m., one-hour Chambers hearing within 90 days of the release of
these Reasons.

__________ “Funt,
J.” _________
Funt, J.