IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140721

Docket: M116629

Registry:
Vancouver

Between:

Dagan Peter Haba
Nish

Plaintiff

And

Lynda Patricia
McLaughlin also known as Linda Patricia McLaughlin
Patricia Mary Johnstone and David Hale Johnstone

Defendant

– and –

Docket: M120796

Registry:
Vancouver

Between:

Dagan Peter Haba
Nish

Plaintiff

And

Robert Charles
Redden

Defendant

Before:
The Honourable Madam Justice Gropper

Reasons for Judgment

Introduction

[1]            
Dagan Nish claims damages for personal injury arising out of two motor
vehicle accidents: the first on January 27, 2010 and the second on March 30,
2010. Mr. Nish claims for non-pecuniary damages, past loss of income, loss of
income-earning capacity, special damages, and cost of future care.

[2]            
The defendants in the first accident seek a finding of contributory
negligence. The defendant in the second accident admits liability.

Liability for the First Accident

Evidence

[3]            
Mr. Nish describes the circumstances of the first accident. He left his
home at Carolina Street and East 6th Avenue in Vancouver by bicycle before 8:00
am. His plan was to take a photograph at a location in east Vancouver and then
go on to work from there. He reached the northwest corner of East 12th Avenue
and Commercial Drive. He stopped, on his bicycle, on the sidewalk. He saw that
the walk light to cross Commercial eastbound was illuminated. He observed the
defendant McLaughlin’s vehicle pulled about halfway into the crosswalk and
appeared to be making a right hand turn from Commercial to 12th Avenue
westbound. Mr. Nish says that he does not recall there being a right turn
signal on the vehicle. Mr. Nish stopped at the corner for about three to
five seconds. During that time the vehicle did not move and the driver was
watching traffic to her left (looking east). Mr. Nish waited to see if he
could establish eye contact but he could not. He proceeded into the crosswalk
and was on the line on the south end of the crosswalk. Mr. Nish says that
he entered the crosswalk on his bicycle while the pedestrian light remained
illuminated.

[4]            
Mr. Nish says that he passed in front of the defendant’s vehicle and
reached a point where his front tire was just past the front driver’s-side
corner of the car. Mr. Nish says he was facing forward looking at the
light. As he continued along the line of the intersection he said he suddenly
felt his body being pushed. He braced his right foot on the ground to prevent
himself from falling. His bike was moving. He held his hands on the handlebars
and turned to look over his left shoulder. He then saw the vehicle starting to
move. The left side of the car pushed him forward out of the crosswalk into the
intersection. He says the vehicle was still moving when he looked at it, though
not very fast. He and the defendant McLaughlin established eye contact. She
stopped her vehicle. Mr. Nish got off the pedals of the bicycle and stood
there. The driver looked at him and asked if he was okay. Mr. Nish says he
was angry and he threw his hands up. By then the walk sign was flashing and he
picked up his bike and “hobbled behind the vehicle” and back to the sidewalk
that he had come from. The vehicle did not move until he got back to the
sidewalk and then the vehicle finished the turn.

[5]            
Mr. Nish memorized the license plate number as the vehicle moved. He
got up and walked around the corner to see if the driver was there. The vehicle
was gone.

[6]            
Lynda McLaughlin, the driver of the vehicle, gave evidence that she was
driving south on Commercial and moved into the right lane in order to make a
right hand turn at 12th Avenue. As she approached the intersection the light
facing her was yellow and then turned red. She said she stopped at the
intersection and waited for the traffic going west on 12th Avenue. She then
pulled forward into the crosswalk to see around the corner. She was waiting for
the traffic and saw a break in the westbound traffic. She turned her head to
the right. She says there were no pedestrians to be seen. She says she looked
again to the left and then turned forward and released her brake. At that
moment she saw Mr. Nish in front of her and she reapplied her brake.

[7]            
Ms. McLaughlin says that she asked Mr. Nish if he was okay and he
said “yeah yeah” and then he went back to the sidewalk. The light for the
traffic going southbound on Commercial then turned green and
Ms. McLaughlin turned right. Ms. McLaughlin does not believe that
contact was made between her vehicle and Mr. Nish. She inspected her
vehicle and saw nothing.

[8]            
Mr. Nish said that immediately following the first accident he was
not in pain. As he made his way to work by bicycle he noticed discomfort in his
knees and left ankle. When he arrived at work he observed them to be swollen. He
applied ice and attempted to carry on with his work.

[9]            
Mr. Nish attended a walk in clinic the following day where he was seen
by Dr. Sander Chew, whose examination revealed tenderness in the lateral
right ankle, slight tenderness under both knee caps and some fluid in the right
knee joint. He diagnosed a sprained ankle and bilateral knee strains.

[10]        
The defendant McLaughlin’s evidence is that her vehicle did not strike
the plaintiff or his bicycle. Alternatively, Ms. McLaughlin submits that
Mr. Nish was contributorily negligent. He was riding his bike through the
crosswalk contrary to the Motor Vehicle Act, R.S.B.C. 1996, c. 318,
s.183(2)(b), which permits riding across a crosswalk only if authorized by a
bylaw or a sign. No such sign existed at the crosswalk of Commercial and 12th
Avenue. Mr. Nish was unaware that cycling through a crosswalk is
prohibited.

[11]        
Ms. McLaughlin asserts that Mr. Nish may have arrived at the
northwest corner of Commercial and 12th by cycling east along 12th Avenue
instead of south along Commercial as he said in his evidence. Mr. Nish
described that route in his February 1, 2010 statement to the Insurance
Corporation of British Columbia (“ICBC”). In his statement, Mr. Nish describes
arriving at the northwest corner of the intersection, which is the corner that
he describes in his evidence. Ms. McLaughlin submits that if the plaintiff
arrived at this corner by travelling east on 12th Avenue the building on the
corner would have blocked her view of his approach.

[12]        
The defendant says that if the court finds that Mr. Nish traveled
south on Commercial, Ms. McLaughlin was looking to her right and her left
for approaching traffic, not behind her. Ms. McLaughlin argues that
Mr. Nish was negligent in crossing as he did: he knew Ms. McLaughlin
intended to make a right turn; he tried to make eye contact and did not do so
but began to cross anyway. He made no other attempt to get
Ms. McLaughlin’s attention before crossing.

Analysis

[13]        
I accept Mr. Nish’s version of the events. I consider that in his
statement to ICBC, he was confused about his directions. In his evidence in
chief he had the opportunity to view photographs of the intersection and was
able to say precisely where he was. Having found that Mr. Nish was in the
place that he said he was, I do not accept the evidence of Ms. McLaughlin.
She says that she did not see him there, but, I find, he was there to be seen.

[14]        
In respect of Ms. McLaughlin’s position that there was no contact
between her vehicle and Mr. Nish and/or his bicycle, I accept
Mr. Nish’s evidence that there was contact. If there was no contact,
Mr. Nish had no reason to be angry. Further, the observations of
Dr. Chew the following day, and his diagnosis of Mr. Nish’s injuries
are consistent with there having been an impact.

[15]        
The fact that Mr. Nish was riding his bicycle in a crosswalk, which
is prohibited under s. 183(2)(b) of the Motor Vehicle Act, is not
determinative of Mr. Nish’s negligence.

[16]        
In Deol v. Veach, 2011 BCSC 1437, Madam Justice Dardi stated at
para. 23:

[23]      It is also well-settled
that a breach of the provisions of the MVA in itself does not establish
negligence: Dickie Estate v. Dickie (1991), 5 B. C. A. C. 37
(C.A.). In order to find negligence the court must find that an individual did
not exhibit the standard of care which was required in the circumstances and
that the negligence contributed to the accident.

[17]        
I find that Mr. Nish did not demonstrate any lapse of care. He was
crossing in accordance with a pedestrian light, he was trying to get the
defendant McLaughlin’s attention, and while he did not do so, it was reasonable
to expect that the defendant McLaughlin would look to her right before
executing her right turn.

[18]        
Mr. Nish’s riding his bicycle in the crosswalk did not cause this
motor vehicle accident or the injuries he sustained. The fact is that
Ms. McLaughlin’s vehicle hit Mr. Nish, and he was injured as a result.
This would have occurred whether he was on a bicycle or walking through the
intersection.

[19]        
I find Ms. McLaughlin to be 100% at fault for the first accident.

Damages

Facts

[20]        
Mr. Nish was 23 years old in 2010 when the accidents occurred.

The First Accident

[21]        
Mr. Nish describes his health before the accidents as very good. He
broke his left foot in high school and he broke his wrist in the late spring of
2009. Both had fully recovered before the first accident occurred.

[22]        
Mr. Nish was involved in skateboarding and had been doing that for
approximately a year. It was his method of transportation.

[23]        
Mr. Nish was also doing volunteer work every second or third Sunday
soliciting donations and recruiting volunteers. He was enthusiastic about stenciling
and had started selling some of his work.

[24]        
In the summer of 2009, Mr. Nish started actors’ training at a small
studio. He also went to the gym frequently working with weights. He did rock
climbing and played pool. He enjoyed attending live music concerts.

[25]        
At the time of the accidents the plaintiff worked nearly full time at Dekora
Staging Inc., a house staging company. He started in September 2008 and he
worked between 30 and 40 hours a week on an on-call basis. His pay was $18 an
hour. He worked as a “swamper” or labourer and performed various duties
including selecting and assembling furniture and accessories from Dekora’s
warehouse, packing it into a moving van, and accompanying the van’s driver to
the staging locations, unloading the items and bringing them into the house,
apartment or boat being staged. He would arrange the items inside under the
guidance of the project’s designer. The entire home/apartment/boat was staged. After
the staging project was complete, he and the driver would remove the items from
the location, put them back in the truck and unload them at the warehouse. Mr. Nish
says he enjoyed the job at Dekora, being around the designers and seeing the
properties that were staged and learning about design.

[26]        
As noted, after the first accident Mr. Nish noticed some discomfort
in his knees and left ankle and when he got to work he found they were swollen.
He applied ice. He reported the accident to his supervisors and attempted to
carry on with his work for the day. He left work early that day. Mr. Nish
also attended his regularly scheduled acting class, but he left early due to
discomfort.

[27]        
Mr. Nish attended Dr. Chew’s office the following day. Dr. Chew
advised him to attend physiotherapy, which he found to be of some benefit. He also
took January 28 and 29, 2010 off work on Dr. Chew’s advice.

[28]        
When Mr. Nish returned to Dekora on February 1, 2010 his employer found
lighter work to accommodate his pain. He was packing light items. He worked for
three and a half hours on February 1 and then took the following four days off
(February 2 to 5). He worked on February 8 and 9 for four to four and a half
hours. He took February 10 off as a vacation day. The day after is noted as a
“work share” day for which he got paid.

[29]        
Between the first and second accident Mr. Nish had some continued discomfort
in his knees and ankle and developed stiffness in his back.

The Second Accident

[30]        
Mr. Nish says that he returned to his full duties at Dekora after
about four to six weeks. He says that he was getting to the level of his
pre-accident performance. His back, knees and ankle were sore but he would take
Advil and use ice. He was not disabled from working. By March 14, 2010 he was
back to his full time hours. Mr. Nish was on the road to recovery after
the first accident. His injuries would have resolved but for the occurrence of
the second accident on March 30, 2010 when Mr. Nish was a passenger in the
Dekora moving van. He and the driver were returning from a staging job,
traveling eastbound on Hastings Street, when they were struck from behind by a
large pick-up truck driven by the defendant, Robert Redden.

[31]        
Mr. Nish describes himself as being in the slouched position in the
passenger seat when the impact occurred. It was unexpected. When he got out of
the Dekora vehicle he describes himself as “pretty sore” in his back and knees.

[32]        
Following the second accident Mr. Nish returned to the warehouse
and helped the driver unload the truck. He says that his neck was sore as were
his lower and mid back up to his shoulder blades. It was hard for him to squat
and pick up the heavier pieces. After he completed his day of work he went back
to the walk in clinic.

[33]        
Mr. Nish noted other symptoms arising after the second accident. He was
in a lot more pain in terms of severity and frequency. He changed the way his
body moved to compensate for the pain that affected his hips and lower back.

After the Accidents

[34]        
Mr. Nish says that after the second accident it was harder to sleep. He
had trouble performing sexually from the pain in his knees and his back. He had
to be selective of how he would lie down. The pain occurred daily and was part
of his life every day for eight to twelve months following the second accident.
He would have pain in his low back every day on both sides but more on the
right and in between the shoulder blades. He had to be careful sitting or
standing. The pain was worse on some days, others it was a dull tension and ache.
He took Advil steadily.

[35]        
Mr. Nish describes that the kind of pain changed from the first to the
second accident. After the first accident it was more of a tension and after
the second accident it was frequent and stronger pain.

[36]        
Mr. Nish found that he was getting depressed after the second accident. He
says that he was stressed because he could not perform his work at Dekora even
though he was trying to increase his work and attempting to get a permanent
full-time position. He began fighting with his then girlfriend and that also
depressed him. He continued to have physiotherapy approximately twice per week.
Mr. Nish continued to see Dr. Chew and followed his recommendations
including the pursuit of massage therapy. The cost of the therapy was too expensive
and Mr. Nish could only go for two or three weeks. Dr. Chew also
recommended yoga and acupuncture. Mr. Nish pursued yoga but could not
afford the cost of the acupuncture.

[37]        
Mr. Nish describes certain triggers which cause pain symptoms including
sitting and standing, turning and bending at the same time, lifting and
jogging. He limited his volunteer work, stopped skateboarding and bicycling. He
stopped attending live music events and did not get back to stenciling.

[38]        
Mr. Nish says that his symptoms have improved: the severity of pain has
decreased and is not debilitating. Pain is frequent but not as severe. His
lower back and the area between the shoulder blades continue to bother him. He gets
knee and ankle pain from time to time. His sleep has improved. He says that the
pain is “now part of life as I know it”. Mr. Nish says that he has
achieved 85% of his former self on his best day but never experiences that for
an entire day.

[39]        
Mr. Nish acknowledged in cross-examination that since the accidents in
2010, he has had certain stresses in his life. He broke up with the girlfriend
he was with when the accidents occurred, although he is now in a committed
relationship. His grandmother’s health and his girlfriend’s mother’s health has
been a source of concern over the last year or so.

[40]        
Mr. Nish continued to work at Dekora after the second accident. He
returned to work right away. His employer provided him with light duties or he
would be placed in a three person crew to stage jobs. Because heavy lifting was
difficult, and Dr. Chew had emphasized that he should not do it, someone
else would be called to do the twisting and lifting duties. He noticed that
Dekora was calling in other employees to be on the truck and he was receiving
fewer calls. His weekly hours decreased. He exhausted his employment insurance
and sought employment counselling. He was advised to pursue a government funded
program to determine a new career path. As a result of that program, he left
with an interest in emergency management.

[41]        
He worked for Dekora on and off over the following years. In the summer
of 2011 he did a cooking job for eight weeks, but could not continue due to an
earlier wrist injury. In September 2011 he was accepted into a program at the
Justice Institute in emergency and security management. It is a four year
program, of which he has done two and one-half years. He acknowledges that his
career in emergency management is more sedentary than working at Dekora, it
will likely pay better and it will be more challenging.

[42]        
In his testimony, Mr. Nish describes the effects of injuries on his
studies as follows:

It affects my concentration and
how long I can study at one time. I have had to be strategic about the times I
work and then getting a break. There is a rising pressure of pain and tension
in my lower back – I can deflate it in 10-15 minutes – and then sit down again
and it starts again. I can study for about 40 minutes and then get up for 10
minutes- sometimes that doesn’t work – depending on what I am doing and what I
have to do.

[43]        
Mr. Nish also works at an Apple retail store, 16-19 hours per week for
which he is paid $17 per hour.

[44]        
Mr. Nish has attempted to pursue his acting career and has obtained
several roles. His acting coach, Kate Twa, considers Mr. Nish to be good
at what he does, but his physical limitations restrict the work he can do in
the studio and prevent him from obtaining any role that is very physical.

Medical Evidence

Dr. Chew

[45]        
Dr. Chew provided a report on October 20, 2013. His evidence was
heard by deposition.

[46]        
In his report, Dr. Chew describes each appointment with
Mr. Nish following the first accident. In February and March 2010 he or
another doctor in his office saw Mr. Nish four times. He confirms
Mr. Nish’s evidence following the first accident including that he
recommended physiotherapy, rest, ice and anti-inflammatory medications and that
Mr. Nish stay off work for another five to seven days. He also confirms
that Mr. Nish attended physiotherapy six times and that Dr. Chew
recommended that he continue that.

[47]        
Dr. Chew notes that on March 5, 2010 Mr. Nish stated that his knees
were much improved and his ankle was asymptomatic. His back symptoms were
improving slowly.

[48]        
After the second accident Mr. Nish saw Dr. Jonas Samson,
another physician at Dr. Chew’s office, on March 31, 2010. Dr. Samson’s
examination revealed decreased neck fluxion because of pain although neck range
of motion was normal as was a neurological exam. Dr. Chew describes that
Mr. Nish was “tender in the para-cervical (neck), para-thoracic (mid and
upper back), and para-lumbar (low back) muscle groups bilaterally. Dr. Samson
diagnosed him with muscle strain injuries and recommended that he continue
physiotherapy and take ibuprofen 600mg three times daily”.

[49]        
According to Dr. Chew’s report Mr. Nish saw him approximately
once per month from April 2010 to February 2011. He noted some improvement of
his symptoms but noted that Mr. Nish was still sore, his sleep was still
disturbed, and that he should continue with massage therapy and light duty at
work.

[50]        
Mr. Nish saw Dr. Chew on five appointments between August 2011 and
May 2012.

[51]        
There was a gap between the May 1, 2012 appointment and the next on
September 3, 2013. At the September appointment Dr. Chew’s examination
revealed moderate spasm in the para lumbar muscles, worse on the left side with
visible scoliosis (lateral curvature of the spine), that was presumably due to
muscle spasm. Dr. Chew noted that Mr. Nish was tender in the left
para-lumbar muscles. Dr. Chew diagnosed him with an exacerbation of a soft
tissue back injury and suggested that he go back to massage to relieve the
spasm. Mr. Nish saw Dr. Chew three more times before Dr. Chew
wrote his report. In his report, Dr. Chew provides the following opinion:

Mr. Nish was totally disabled from January 27, 2010 to about
February 8, 2010. He has been partially disabled since then and continues to be
partially disabled and limited in his activity level, specifically due to the
lumbar and thoracic injuries. Since February 2010, he has been unable to do
heavy lifting and repetitive bending motions. He has had significant trouble
with sleep, and pain associated with prolonged standing and prolonged sitting. He
is currently sleeping well in certain positions. He has suffered through
significant pain, especially in the first 2 years since the [motor vehicle
accidents]. He has improved since then and his activity level is increasing but
he still remains unable to do heavy lifting and repetitive bending in any
prolonged fashion. He is however capable of working full time in occupations
that involve light to moderately physically demanding tasks.

Mr. Nish is also currently still disabled from being able to
pursue his more vigorous non-work related activities such as skateboarding and
rock climbing. He is very interested in martial arts training, but has been
avoiding it. I agree with this decision. He is able to do some jogging and is
able to go the gym as long as he avoids certain exercises.

Mr. Nish continues to suffer from stiffness and pain [in] the
lumbar and thoracic regions due to the soft tissue injuries. His prognosis is
fair. Over the next year or two, he should gradually improve and regain a
significant percentage of the pre-MVA function, if not full function. However,
I am unable at this time to anticipate whether he will be left with residual
symptoms long term.

Mr. Nish’s back injuries are at
risk of re-aggravation. If he reinjures his lumbar or thoracic back in any
significant trauma, such as a fall or another [motor vehicle accident],
especially within the next few years, he will likely have a more severe injury,
take longer to heal, and require more physical forms of therapy than if he had
not been injured in the first place.

Dr. G. H. Hirsch

[52]        
Dr. Hirsch is a specialist in physical medicine and rehabilitation. He
examined Mr. Nish on April 12, 2013, which is the date of his report.

[53]        
His opinion, beginning at page 6 of his report is:

1.     Mr. Nish
strained his knees and left ankles in the first accident. He made a full
recovery of the left knee injury.

2.     Mr. Nish
described intermittent fairly short lasting pain involving the lateral aspect
of his left ankle as well as the front and back of his right knee. Those
symptoms should not adversely affect Mr. Nish’s day to day activity.

3.     Dr.
Hirsch’s examination of the left ankle and right knee did not disclose any
findings.

4.     Mr. Nish
made an “excellent recovery” of the injuries to his left ankle and right knee. He
may have intermittent discomfort and pain but the symptoms are not expected to
negatively impact his social, vocational or recreational endeavours. He is not
at risk of developing degenerative arthritis in his knees or left ankle.

5.     Mr. Nish
sustained injuries to his neck in the second motor vehicle accident that
resolved within approximately two months. The injuries were limited to soft
tissue structures and completely healed. Dr. Hirsch does not anticipate
any long term untoward sequelae.

6.     Mr. Nish
injured his thoracic spine and lumbar spine in the first accident. Before the
second accident his back was still symptomatic and “probably more vulnerable to
any superimposed trauma.”

7.     Mr. Nish
sustained superimposed injuries to the thoracic and lumbar spine as a result of
the second motor vehicle accident that were also limited to soft tissue
structures. He did not suffer any significant structural damage to his thoracic
or lumbar spine nor a traumatic brain injury.

8.     Dr. Hirsch
refers to Mr. Nish’s complaint of persistent pain in his thoracic and
lumbar spine for more than three years. He considers that Mr. Nish’s back
pain is mechanical and there appears to be a superimposed myofascial pain
component. Dr. Hirsch considers that the onset and persistence of
Mr. Nish’s reported back injury is causally related to the two motor
vehicle accidents.

9.     Dr. Hirsch
opines that the second accident was probably more significant than the first
“with respect to the perpetuation of Mr. Nish’s back symptoms with lesser
contribution being assigned to the injuries he sustained to his back in the
first … accident.”

10. Dr. Hirsch recommends an
exercise program consisting of core back strengthening exercises, truncal and
hip girdle stretching exercises, upper and lower body strengthening exercises with
the focus on repetition versus resistance and an appropriate cardiovascular
workout routine, as a means of future management.

11. Dr. Hirsch suggests that
Mr. Nish have 10 to 15 treatment sessions with a personal trainer or
kinesiologist and that he thereafter continue with a maintenance program on his
own at a well-equipped gymnasium. He recommends that Mr. Nish consider
other exercise programs such as Thai Chi, yoga, Pilates or aqua exercises.

12. Dr. Hirsch does not recommend any
passive treatment including chiropractic, cranial sacral therapy, massage or
physical modalities.

13. Dr. Hirsch considers that Mr. Nish
may benefit from trigger point injections into the upper trapezius, rhomboid
and para lumbar muscles.

14. Dr. Hirsch considers that it may
be helpful for Mr. Nish to have his desk setup assessed by an occupational
therapist to optimize its ergonomic layout.

[54]        
Dr. Hirsch considers that presently, Mr. Nish is physically capable
of performing tasks of sedentary, light, medium and entry level heavy physical
demands. He has the ability to work in full time occupations with sedentary,
light and moderate physical demands, possibly with some limitations.

[55]        
In the long term, Dr. Hirsch states: “I expect him to make a very
good recovery. It is possible that he will be left with residual back symptoms,
however, I would not anticipate that these symptoms would significantly affect
his level of function.”  Dr. Hirsch does not consider Mr. Nish to be
at risk of developing degenerative arthritis in his neck or back.

Dr. Marc Boyle

[56]        
Dr. Boyle is an orthopedic surgeon. He prepared a medical report at the
request of the defence. He conducted a medical assessment of Mr. Nish on
December 5, 2013. His report is dated December 6, 2013.

[57]        
Dr. Boyle also prepared a report on January 28, 2014, in which he
provides his review of the reports of Drs. Hirsch and Chew.

[58]        
The second report demonstrates Dr. Boyle’s disagreement with the
other physicians, but does not change his December 2013 opinion. On that basis,
I will refer to the December 2013 report only.

[59]        
Dr. Boyle provides the following opinions in his report:

1.     In respect
of the left ankle injury Dr. Boyle describes the physical examination as
“totally unrewarding”. He suggests that Mr. Nish may have sustained a
minor contusion at most but does not feel he suffered soft tissue strains. He
considers that there were no restrictions necessary regarding work, leisure or
household activities.

2.     In respect
of Mr. Nish’s complaints about his knees, Dr. Boyle again describes
the physical examination as “totally unrewarding”. He says that there is no
evidence that Mr. Nish suffered a contusion or that he suffered soft
tissue strain. He considers that there are no restrictions anticipated in the
future.

3.     In respect
of the lumbar spine, Dr. Boyle considers it “unlikely that [Mr. Nish]
suffered a strain following the [first motor vehicle accident]”. If an injury
was sustained, Dr. Boyle considers it would have been “at most a mild myofascial
strain.”  Dr. Boyle is of the view that following the second motor vehicle
accident Mr. Nish may have again suffered a minor soft tissue strain. If
there was a soft tissue injury, it would have been myofascial strain. Dr. Boyle
would have recommended anti-inflammatory medication, stretching and
strengthening exercises, core stabilization exercises and gentle but
progressive aerobic fitness.

4.     Regarding
the thoracic spine, Dr. Boyle refers to Mr. Nish having some minor
mid back complaints, less so than in the lumbar spine. Dr. Boyle opines
that “at most he might have sustained a myofascial strain.”

5.     In respect
of the cervical spine Dr. Boyle considers that Mr. Nish’s symptoms have
resolved. He considers that this segment of the spine is most at risk for
extension/fluxion stresses and subsequent myofascial strains.

[60]        
In respect of disability Dr. Boyle says that after the first
accident there would be “little, if any, disability”. Dr. Boyle notes that
Mr. Nish was working on an on-call/casual/part-time basis for a staging
company and that a day or two after the accident no further time loss would be
considered necessary or appropriate. He says that Mr. Nish could have
continued his employment as he had previously.

[61]        
Following the second accident a period of time off work of one to two
weeks would have been appropriate “at most”. Dr. Boyle continues:

It is felt that he could have
returned to his employment, as he had previously. Had full-time work been
available to him, he could have done so. There would not be any loss of
employability. It is felt that he could have worked as he had previously or as
a cook, in retail or teaching.

[62]        
In cross-examination, Dr. Boyle agreed that some individuals who
present with completely normal examinations can be suffering from soft tissue
injuries. Some individuals with soft tissue injuries never recover. If one has
symptoms for several years after the event which caused the symptoms to occur,
this is a factor which militates against future recovery, particularly if the
symptoms are constant rather than intermittent.

[63]        
Dr. Boyle suggested that Mr. Nish work with a kinesiologist
over a period of 12 weeks, followed by an annual gym pass.

Discussion

[64]        
Mr. Nish must demonstrate, on a balance of probabilities, that but for the
defendants’ negligence his injuries would not have occurred. The test to be
applied was explained in Clements v. Clements, 2012 SCC 32 at paras.
8-10:

[8] The test for showing causation is the "but for"
test. The plaintiff must show on a balance of probabilities that "but
for" the defendant’s negligent act, the injury would not have occurred.
Inherent in the phrase "but for" is the requirement that the
defendant’s negligence was necessary to bring about the injury – in
other words that the injury would not have occurred without the defendant’s
negligence. This is a factual inquiry. If the plaintiff does not establish this
on a balance of probabilities, having regard to all the evidence, her action
against the defendant fails.

[9] The "but for" causation test must be applied in
a robust common sense fashion. There is no need for scientific evidence of the
precise contribution the defendant’s negligence made to the injury. [citations
omitted.]

[10] A common sense inference of
"but for" causation from proof of negligence usually flows without
difficulty. Evidence connecting the breach of duty to the injury suffered may
permit the judge, depending on the circumstances, to infer that the defendant’s
negligence probably caused the loss. [citations omitted.]

[65]        
I find that Mr. Nish’s evidence is consistent internally and with
the evidence of Drs. Chew and Hirsch. I accept that Mr. Nish suffered the
injuries that he described, which would not have occurred but for the two
accidents. Both accidents caused and contributed to the injuries Mr. Nish sustained,
such that the injuries are indivisible (Bradley v. Groves, 2010 BCCA 361
at para. 37).

[66]        
With respect to Dr. Boyle, I note that in his report he described
Mr. Nish’s injuries as “may have” occurring. In his cross-examination he
agreed that Mr. Nish did have the injuries that he had described to him.

[67]        
Dr. Boyle relied on certain facts to support his opinion, when he
did not appear to have had the necessary factual background. For example, he
considered that Mr. Nish could return to his pre and post-accident
functioning without determining what the plaintiff did, including the actual
job title, the number of hours worked, the details of the job duties, and the
level of lifting or bending required. He also did not know what light duties
were available to Mr. Nish or that he was accommodated by his employer providing
him with light duties. Dr. Boyle’s conclusion that Mr. Nish has
returned to employment as he had previously is simply incorrect.

[68]        
In his report Dr. Boyle suggested that there was a likelihood of
complete resolution of Mr. Nish’s symptoms. Dr. Boyle also
acknowledged that individuals can present with completely normal examinations
but be suffering from soft tissue injuries. He acknowledged that some
individuals with such injuries never recover and that after almost three years
post-accidents, if Mr. Nish continues to experience ongoing continuing
symptoms, it is unlikely that he will fully recover.

[69]        
The defence asserts that Mr. Nish had other stressors in his life
which caused or contributed to his symptoms. I do not accept that position. Everyone
has stressors in their lives. Those that Mr. Nish suffers are in addition to
the injuries that I have found Mr. Nish to have sustained in the accidents.

Non-pecuniary Damages

[70]        
Non-pecuniary damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life and loss of amenities. The list of factors
to be considered by the court generally include the plaintiff’s age, the nature
of the injury, the severity and duration of the pain, the level of disability,
the emotional suffering, the loss of lifestyle and impairment of life: Stapley
v. Hejslet, 2006 BCCA 34 at para. 46. Compensation should be fair to all
parties. Fairness is measured against awards made in comparable cases that
provide general guidance. Ultimately each case must be decided on its own facts.

[71]        
Mr. Nish submits the appropriate range of damages in this case is
$50,000. He bases his position on the nature of his injuries, the various diagnoses
and prognosis, his continuing symptoms and the significant impact that the
accidents have had on his lifestyle, at home and at work, his relationships and
his extracurricular activities.

[72]        
I have reviewed the authorities provided by the plaintiff and the
defendants. I consider that the accidents and the injuries that Mr. Nish
sustained have negatively impacted his enjoyment of life. They are likely to
continue to affect him. In considering the cases that the parties have
provided, I assess non-pecuniary damages at $45,000.

Past Loss of Income

[73]        
Before the first accident, Mr. Nish averaged approximately 36 hours
per week at Dekora. After the first accident and on Dr. Chew’s advice he
took 7.25 days off work. Some of the days were noted as vacation and others as
sick days. Mr. Nish said he worked fewer hours following the first
accident and even fewer after the second accident. The plaintiff claims
$10,223.32 before tax as a loss from April 2010 to September 2011. The defence
argues that the days which Mr. Nish did not work but received pay through
sick leave or vacation pay are not compensable by the defendants. They also
insist that there should be no income loss award arising from the second
accident.

[74]        
I find that in these circumstances Mr. Nish is entitled to compensation
for the sick days and vacation days that he took as a result of the injuries he
suffered in the accidents, which he could have used for some other purpose (Bjarnson
v. Parks, 2009 BCSC 48 at paras. 55-61). In addition, I am convinced that
Mr. Nish’s loss of hours from Dekora are attributable to the injuries he
sustained in the two accidents. I accept that when Mr. Nish could not
maintain his share of heavy duties, Dekora called in other employees and his
weekly hours decreased. The claim of $10,223.32 is allowed.

[75]        
Mr. Nish also claims for loss of income from September 2011 until he
concludes his course in emergency management. The basis of that claim is that
because of the injuries he sustained in the accident he was forced to retrain.

[76]        
I accept the plaintiff’s evidence that he was unable to continue with a
very physical job and he looked for other more sedentary opportunities. He
chose the emergency management course and it addresses his physical limitations.
He acknowledges that it will likely pay more and be more challenging. I do not,
however, consider that the defendants are responsible for Mr. Nish’s loss
of income related to this attendance at the Justice Institute. I consider that
Mr. Nish’s continuing symptoms were the impetus for his pursuing retraining;
however, I cannot find that he would have remained at Dekora performing heavy
physical work but for the accidents. In other words, his decision to retrain in
September 2011 was motivated by the injuries he sustained in the accidents, but
I consider that he would have pursued retraining in any event. His position at
Dekora was not full time, it required a great deal of physical stamina and
while Mr. Nish hoped to become a permanent employee, he had not after
almost 2 ½ years working there.

[77]        
I cannot find that Mr. Nish was entitled to damages for loss of
income from September 2011 until he concludes his course in emergency
management.

Future Loss of Earning Capacity

[78]        
Despite my finding that the defendants are not responsible for Mr. Nish’s
loss from after the enrolment at the Justice Institute until he graduates in
the spring of 2015, before the accidents, Mr. Nish was a young man who had
not established a career path. He enjoyed working at Dekora and at the time had
not considered ending that job.

[79]        
Nonetheless, Mr. Nish has suffered the loss of a capital asset due
to his accident related injuries. He can no longer perform jobs involving
physically heavy work which he previously performed. There has been a
limitation in his ability to pursue and succeed in more physical roles as an
actor. There may be jobs in his field of emergency management which he will
find difficult if they involve heavy physical work.

[80]        
It is that loss for which Mr. Nish must be compensated.

[81]        
The legal framework regarding a claim for loss of future earning
capacity was described by Madam Justice Dickson in Hardychuk v. Johnstone,
2012 BCSC 1359 at paras. 192-198:

[192] A claim for loss of future earning capacity raises two
key questions: 1) has the plaintiff’s earning capacity been impaired by his or
her injuries; and, if so 2) what compensation should be awarded for the
resulting financial harm that will accrue over time? The assessment of loss
must be based on the evidence, and not an application of a purely mathematical
calculation. The appropriate means of assessment will vary from case to case: Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353; Pallos v. Insurance Corp. of
British Columbia (1995), 100 B.C.L.R. (2d) 260; Pett. v. Pett, 2009
BCCA 232.

[193] The assessment of damages is a matter of judgment, not
calculation: Rosvold v. Dunlop, [2001 BCCA 1].

[194] Insofar as is possible, the plaintiff should be put in
the position he or she would have been in, from a work life perspective, but
for the injuries caused by the defendant’s negligence. Ongoing symptoms alone
do not mandate an award for loss of earning capacity. Rather, the essential
task of the Court is to compare the likely future of the plaintiff’s working
life if the accident had not happened with the plaintiff’s likely future
working life after its occurrence: Lines v. W & D Logging Co. Ltd.,
2009 BCCA 106; Moore v. Cabral et. al., 2006 BCSC 920; Gregory v.
Insurance Corp. of British Columbia, 2011 BCCA 144.

[195] There are two possible approaches to assessment of loss
of future earning capacity: the “earnings approach” from Pallos; and the
“capital asset approach” in Brown. Both approaches are correct and will
be more or less appropriate depending on whether the loss in question can be
quantified in a measureable way: Perren v. Lalari, 2010 BCCA 140.

[196] The earnings approach involves a form of math-oriented
methodology such as i) postulating a minimum annual income loss for the
plaintiff’s remaining years of work, multiplying the annual projected loss by
the number of remaining years and calculating a present value or ii) awarding
the plaintiff’s entire annual income for a year or two: Pallos; Gilbert
v. Bottle, 2011 BCSC 1389.

[197] The capital asset approach involves considering factors
such as i) whether the plaintiff has been rendered less capable overall of
earning income from all types of employment; ii) is less marketable or
attractive as a potential employee; iii) has lost the ability to take advantage
of all job opportunities that might otherwise have been open; and iv) is less
valuable to herself as a person capable of earning income in a competitive
labour market: Brown; Gilbert.

[198] The principles that apply in assessing loss of future
earning capacity were summarized by Low J.A. in Reilly v. Lynn, 2003
BCCA 49:

101      The relevant principles may be briefly summarized.
The standard of proof in relation to future events is simple probability, not
the balance of probabilities, and hypothetical events are to be given weight
according to their relative likelihood: Athey v. Leonati, [1996] 3
S.C.R. 458 at para. 27. A plaintiff is entitled to compensation for real and
substantial possibilities of loss, which are to be quantified by estimating the
chance of the loss occurring: Athey v. Leonati, supra, at para. 27, Steenblok
v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.). The valuation of the
loss of earning capacity may involve a comparison of what the plaintiff would
probably have earned but for the accident with what he will probably earn in
his injured condition: [Milina] v. Bartsch (1985), 49 B.C.L.R.
(2d) 33 at 93 (S.C.). However, that is not the end of the inquiry; the overall
fairness and reasonableness of the award must be considered: Rosvold v.
Dunlop, 2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995] B.C.J.
No. 644 (C.A.) (Q.L.). Moreover, the task of the Court is to assess the losses,
not to calculate them mathematically: Mulholland (Guardian ad litem of) v.
Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Finally, since the course
of future events is unknown, allowance must be made for the contingency that
the assumptions upon which the award is based may prove to be wrong: Milina
v. Bartsch, supra, at 79…

[82]        
To establish this head of damages the plaintiff must demonstrate a real and
substantial possibility that he will suffer a loss of income in the future as a
result of his injuries. The Court of Appeal pointed out in Morlan v. Barrett,
2012 BCCA 66 at paras. 39-41 that is a matter of common sense that a person
with constant and continuous pain will, over time, experience a detrimental
effect on their ability to work.

[83]        
Applying these principles to the case, I award Mr. Nish $20,000
under this head of damage.

Future Care

[84]        
An award for cost of future care must be based on medical evidence as to
what is reasonably necessary to preserve and promote the plaintiff’s mental and
physical health. In assessing cost of future care, the court should consider
whether the plaintiff would likely use the items or services in the future (Prempeh
v. Boisvert, 2012 BCSC 304 at para. 107).

[85]        
The doctors agree that Mr. Nish would benefit from attending a gym
and between 9 and 15 sessions with a kinesiologist. Dr. Boyle recommends
that the cost of this would total $890 and Dr. Hirsch anticipates that the
cost is $1,250. Mr. Nish claims $1,900 to include a two year annual gym
pass as well as ongoing yoga.

[86]        
I award Mr. Nish $1,100 under this head of damages.

Special Damages

[87]        
The parties agree that special damages are $1,290. The plaintiff claims
a further $500 for the cost of yoga treatment that he has incurred to date.

[88]        
I award Mr. Nish $1,500 under this head of damage.

Summary

“Gropper J.”