IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140805

Docket: 47093

Registry:
Kamloops

Between:

Colin
Miley

Plaintiff

And

Ashraf
Abulaban and Hisham Al-Ahmad

Defendants

Before:
The Honourable Madam Justice Hyslop

Reasons for Judgment

INTRODUCTION

[1]            
On Tuesday, May 18, 2010, the plaintiff, Colin Miley was driving his car.
His car was stopped, waiting in a long line of vehicles (15 to 20) on the King
George Highway in Surrey, British Columbia, when his vehicle was struck in the
rear by a white minivan driven by the defendant, Ashraf Abulaban. Mr. Abulaban
was driving the vehicle with the consent of the defendant and owner of the
minivan, Hisham Al-Ahmad.

[2]            
Mr. Miley testified that he saw the minivan in his rear-view mirror. He
testified that in anticipation of his vehicle being hit, he locked his arms and
braced his legs. His airbag did not deploy. He stated that his car jumped
forward. He was wearing his seatbelt. The driver’s seat of his car was equipped
with a headrest. He testified that his neck snapped back. He does not recall
hitting his head but he felt dazed. Mr. Miley got out of his car and he and Mr.
Abulaban exchanged information.

[3]            
Upon inspecting his vehicle, Mr. Miley noticed scuff marks on the left
side of the car’s rear bumper as well as some cracking on the rear bumper. The
hood of the minivan was pushed in and crumpled.

[4]            
After the accident, Mr. Miley called his wife and then went home. Within
hours he felt nauseous and queasy.

[5]            
As a result of the accident, Mr. Miley developed stiffness in his neck,
which went away within two weeks. He developed pain on the left side of his
back which became worse over time. He remained away from work for a few days
and returned to work on the first day of work the following week.

[6]            
Liability is not in issue. The issues are causation and damages. Mr.
Miley seeks damages for the injuries that he suffered in the accident. The
heads of damage are:

1.     non-pecuniary;

2.     special
damages;

3.     loss of
earning capacity; and

4.     loss of
future care.

[7]            
On March 2, 2011, Mr. Miley was on his way to a physiotherapy
appointment when he was involved in a second motor vehicle accident. This
accident occurred at an intersection when a vehicle owned and operated by Anita
Horkoff struck the front passenger side of the Miley vehicle. Mr. Miley
commenced an action against Ms. Horkoff. It was ordered that this action and
the Horkoff action (Kamloops Registry No. 47333) be tried together. On the
first day of trial, the Horkoff action was discontinued. Mr. Miley’s evidence
is that he was not injured in the Horkoff accident, except that he experienced
a sore neck and general stiffness in his back for about two weeks, the latter
settling back to its original condition as a result of the first accident.

[8]            
Mr. Miley’s position is that the injuries suffered in this accident are
indivisible in accordance with the principles set out in Bradley v. Groves,
2010 BCCA 361, leave to appeal ref’d [2010] S.C.C.A. No. 337. The defendants
argue that in accordance with the damage to Mr. Miley’s car in the second
accident, which was far more than the damage to his car in the first accident,
Mr. Miley was injured in the second accident. The defendants argue that despite
being described as an aggravation to his back, the extent of the aggravation
must be factored in when making an award of damages.

ISSUE

[9]            
The main issue for determination is the extent and duration of Mr.
Miley’s injuries that were caused by the motor vehicle accident that occurred
on May 18, 2010.

POSITIONS

[10]        
Mr. Miley argues that the back injury that he suffered in the first
accident has impacted all aspects of his life and that the injury is permanent.
He argues that his neck injury from the first accident healed quickly and is of
little significance. He argues that in the second motor vehicle accident his
neck was sore and was of no consequence as it only exacerbated his back, but
did not injure it.

[11]        
The defendants acknowledge that Mr. Miley suffered a low back injury in
the accident but take issue with the impact that the plaintiff alleges the
injury has taken on his day-to-day activities, on his employment and its
prognosis.

[12]        
The defendants argue that there was little damage to Mr. Miley’s vehicle
in the first accident, compared to writing off of his vehicle in the second
accident, which suggests that his injuries in the first motor vehicle accident
were not as severe as he alleges.

[13]        
The defendants further argue that Mr. Miley did not follow medical
advice, which was to lose weight and strengthen his core.

BACKGROUND

Mr. Miley

[14]        
At the time of the accident, Mr. Miley was age 38 and at the beginning of
trial he was age 41. Mr. Miley is married with two daughters, ages five and a
year and a half. At the time of the accident his eldest daughter was a few
months short of her second birthday; his second daughter had not been born. Mr.
Miley has an 18 year old son from a previous relationship. His son has
graduated from high school and he lives away from home.

[15]        
At the time of the accident and at the time of trial, Mr. Miley resided
in Surrey. In February of 2011, Mr. Miley and his spouse, Azadeh, left their
rented duplex and they purchased a single family home. Their home is situated
on one-third of an acre in a forested area. It is an older home with five
bedrooms and three bathrooms. It meets their needs and is one block away from a
school. The home requires some repairs; the grounds require ongoing
maintenance.

[16]        
At the time of this trial, Mr. Miley was employed by Coast Capital
Savings Credit Union (“Coast Capital”) in Surrey, as a corporate communications
officer. He started his employment with Coast Capital on February 7, 2009. Mr. Miley
lost his position with Coast Capital when his employer learned that he did not
have a university degree though his resume stated that he did. This was
revealed during the trial.

[17]        
After completing high school, Mr. Miley attended the University of
Victoria for a period of three years. From 2003 to 2005, he attended Douglas
College where he received a diploma in professional writing and editing.

[18]        
During the summers while going to high school and university, Mr. Miley
worked as a landscaper.

[19]        
He was employed by BC Hydro’s Power Smart Program where he installed
water and energy saving devices. This was a physical job. He was required to
wrap hot water tanks and install weather-stripping which required the use of
power tools. He was required to work nights. He had no difficulty performing
these tasks.

[20]        
He worked for Telus from 1988 to 2003 as a customer service
representative.

[21]        
After completing his diploma in professional writing and editing, he
started his own business in which he did free-lance writing. He contracted to a
number of companies, societies and other organizations for which he provided
his services.

[22]        
In 2007 and 2008, he worked as a communications officer for a homeowner
protection office.

State of Mr. Miley’s Health and Activities Before the Accident

[23]        
Mr. Miley was a talented volleyball player. He attended his first year
at the University of Victoria on a volleyball scholarship. The team was
disbanded after the first year. Mr. Miley continued to play competitive men’s
volleyball. He played in a league and he belonged to a team that won the Canadian
Club Championship for two years. At the time of the accident he was still
playing in a league and he would also play pickup co-ed volleyball.

[24]        
While in high school and playing rugby, he fractured his arm. He also
fractured his ankle playing volleyball. In 2007, he was tested for congenital
heart conditions and has had no further issues since. From 2005 to 2006, Mr.
Miley suffered from drug addiction. He sought treatment and is free of that
addiction. None of these medical conditions interfered with his work, his
lifestyle or pursuit of his athletic endeavours. Mr. Miley viewed himself as
being in excellent physical shape.

[25]        
Mr.  Miley’s best friend, whom he has known since grade 8, sees Mr.
Miley once or twice a week. He said that before the accident he and Mr. Miley
watched sports together, took short trips together and participated in lots of
social activities. He described Mr. Miley as very athletic emphasizing his
pursuit in volleyball. He said that Mr. Miley was fun to be around.

[26]        
Mr. Miley and his wife enjoyed walking trails and camping.

[27]        
With the arrival of his first daughter, Mr. Miley spent considerable
time with her, including bathing her as part of the nighttime routine. In
addition, he cared for his elderly father.

[28]        
I conclude that prior to the accident Mr. Miley was in good health. He
was able to participate in all his sporting activities, particularly
volleyball. He was able to participate in social activities and meet his family
obligations. I also find that Mr. Miley intended, in the future, to continue to
pursue all of his activities, including volleyball.

Medical Treatment

[29]        
Initially, Mr. Miley was treated by Drs. Nolte and O’Brien at a walk-in
clinic. He was prescribed medication and physiotherapy. Mr. Miley had spasms
and pain in the lower left side of this back. He thought initially that his
back problem was a short term, acute problem. He found that physiotherapy was
not helping. On June 10, 2010, he saw his family doctor, Dr. Spangehl and
thereafter remained in his care. Mr. Miley’s complaints relating to his neck
resolved within a couple of weeks. This is confirmed by the evidence as he made
no complaints to Dr. Spangehl about his neck until the second accident, when he
complained of neck and back pain. He said the lower back pain “intensified
throughout the day”.

[30]        
Mr. Miley underwent a series of treatments with two different
physiotherapists. From June 14 to 16, 2010, Mr. Miley had nine physiotherapy
sessions with Salveen Lalli and a further 26 sessions with Julie Sopko. From
the time of the second accident to the time of trial, he had a further 14
sessions with Ms. Sopko. He had some needling treatment (intramuscular
stimulation), together with therapeutic exercise and a home exercise program.
On the recommendation of his physiotherapist, he wore a belt or brace intended
to reduce the pain. Mr. Miley testified that this provided temporary relief.
The needling was painful but it provided a few days of relief.

[31]        
It was during the second round of physiotherapy that Mr. Miley was
involved in the second motor vehicle accident on March 2, 2011.

[32]        
At the request of Mr. Miley’s lawyer, Dr. McKenzie provided opinions as
to Mr. Miley’s injuries. Dr. McKenzie concluded that the pain in Mr. Miley’s
lower back, groin and lower leg (not below the knee) is a result of an injury
to the left L5/S1 facet joint of his spine. This opinion was confirmed by Dr.
Vincent as a result of treatment that Dr. Vincent provided Mr. Miley. Dr. McKenzie
pointed out that MRIs, although good at picking up discs and nerve root problems,
do not pick up pain.

[33]        
Dr. Vincent is an anesthetist with a special interest in pain
management. He practices in Victoria. He first saw Mr. Miley on March 12, 2012.
After examining Mr. Miley, he concluded that Mr. Miley would benefit from a
diagnostic medial branch block of the L5/S1 facet joint to determine the source
of his pain and discomfort. Included in the procedure was a corticosteroid for
therapeutic purposes. Mr. Miley had three facet joint blocks. They occurred in
the months of March, June and September of 2012. Mr. Miley described the
effects of these blocks as if he was suffering from a “mini flu”. The first and
third blocks took away the stabbing pain. The second block was less effective. This
provided relief from pain which wore off after about three weeks.

[34]        
Dr. Vincent treated Mr. Miley’s lower back with a medial branch
radiofrequency neurotomy, called a cryoanalgesia, on December 13, 2012. This
treatment does not cure the injury, but rather is a:

…tool to assist in enhancing
lower back function and reduction of pain. Neural regeneration which a natural
process of healing can take place as early as 4 months and as a late as 2 years
post treatment (Dr. Vincent’s report dated June 12, 2013).

[35]        
The neurotomy provided significant improvement in that there was no pain
in Mr. Miley’s groin. He had “flare-ups” in his back which, in his words, “did
not stop me in my tracks”. The pain is described by Dr. Vincent as low grade
and that Mr. Miley’s pain had been reduced. This treatment can be repeated.

Prognosis

[36]        
Dr. McKenzie provided written medical legal opinions in letters dated
December 9, 2010, January 11, 2011, June 21, 2011 and October 23, 2012
concerning Mr. Miley’s injured back. Dr. McKenzie did not treat Mr. Miley. Dr. McKenzie
has seen and examined Mr. Miley on three different occasions – December 19,
2010, October 23, 2012 and September 5, 2013. He stated that his physical
examination of Mr. Miley and its result “was not significantly changed.”

[37]        
Initially, Dr. McKenzie recommended that Mr. Miley lose the weight that
he had gained since the accident. He also stated that Mr. Miley appeared
deconditioned and needed to exercise his core “within the limits of his pain”.
He cautioned Mr. Miley about the use of Tylenol 3 due to his history of
addiction. When Dr. McKenzie saw Mr. Miley on December 9, 2010, he was of the
view at that time that Mr. Miley had not reached his maximum improvement and he
will not reach that level until approximately two to two and a half years from
the date of the accident.

[38]        
When Dr. McKenzie saw Mr. Miley on October 23, 2012, Mr. Miley continued
to have pain on the left side of his lower back with occasional right upper
lumbar pain. The pain will go into the left buttock and left groin. Mr. Miley
told Dr. McKenzie that the leg pain had decreased and he attributed this
decrease of pain to the injections administered by Dr. Vincent.

[39]        
At the time of seeing Dr. McKenzie on October 23, 2012, Mr. Miley told
Dr. McKenzie that he has not missed work due to his back in the last six
months. He stated that he is a more active participant in doing housework, but
he has increased pain when loading the dishwasher, vacuuming and picking things
up. He operates a lawnmower, but it is difficult and he must be vigilant as to
his position. He cannot play volleyball. He is able to play with his children
and his walking is better. He told Dr. McKenzie that his sleep has improved and
he wakes up only once in the night so as to adjust himself. He told Dr. McKenzie
that he does not feel that he has any problems with anxiety or depression.

[40]        
On September 5, 2013, Mr. Miley told Dr. McKenzie that he had some
physiotherapy and a “flare-up” in February or March, and two “flare-ups”
between May and July of 2013. The one in February or March was quite
significant and lasted three days. He described the results of the neurotomy as
reducing his back pain to virtually no back pain for a period of about two to
three months. He described to Dr. McKenzie some “low level pain starting to
creep back up again”. He described it as 1 out of 10, with 10 being the worst
pain.

[41]        
In his letter of September 5, 2013, Dr. McKenzie described Mr. Miley’s
pain on that date as follows:

He continues to have one ongoing
problem which is some low grade lower back pain. That has been quite improved
since I last saw him due to the radiofrequency ablation. His pain is now in the
left lumbosacral area. He has had no groin pain of significance since the
radiofrequency ablation and no buttock pain with the exception of 2 or 3 minor
episodes which were short lived. His thigh pain has “subsided”.

[42]        
In comparing the results of his September 5, 2013 physical examination
to past physical examinations, Dr. McKenzie states:

He had some mild tenderness at
the left side of L4/5 and L5/S1. There were no other areas of tenderness.
Comparing this to my previous examination, he has a smaller area of tenderness
and it seems to be less significant.

Employment

[43]        
Mr. Miley advised his employer of his accident. It made accommodations
for him. He could take work home. He was permitted to work from home when his
back pain was severe. At meetings, he was permitted to stand up or sit,
alternating these positions during the meetings. His employer accommodated his
attendance at medical and physical therapy appointments during working hours.

[44]        
Ms. Halum, who is head of communications at Coast Capital, testified.
She stated that the communications department that Mr. Miley was part of is
fast-paced; work has deadlines and shifting priorities. Mr. Miley performed
well in his job.

[45]        
Ms. Halum observed Mr. Miley’s discomfort. She noticed that he shifted
from a sitting to a standing position during meetings and used an empty meeting
room to lie down to relieve the pressure. She testified that positions such as
Mr. Miley’s are not secure as the communications department had been downsized;
an employee with more seniority than Mr. Miley had been let go, thus the length
of service provides no assurance of continued employment. This, of course, has
become moot as Mr. Miley has lost his job for reasons that cannot be laid at
the feet of the defendants.

Physical Assessment

[46]        
Karen Winkler is an occupational therapist who provided a report
consisting to two parts: the first dealt with Mr. Miley’s “physical strengths
and limitations regarding employability and is determined by conducting a
Physical Capacity Evaluation.” The second part of her report is an opinion as
to the cost of future care.

[47]        
Ms. Winkler evaluated Mr. Miley on October 15, 2012. The evaluation
consumed eight hours, which included 35 minutes for breaks; one for five
minutes, the other for 30 minutes.

[48]        
Ms. Winkler’s assessment was to assess Mr. Miley’s physical capacity
relating to:

…sitting, standing, walking,
balancing, bending/stooping, crouching, kneeling, handling, reaching, upper
extremity strength and endurance, climbing, lifting, carrying, pushing and
pulling, and tolerance to activity.

[49]        
Ms. Winkler concluded that Mr. Miley’s range of motion and all major
joints were within normal limits with the exception of his trunk, which she
found flexion was moderately restricted. She found that he had normal muscle
strength except flexion in the right hip. His grip strength was between below
average and average strength. After observing and timing Mr. Miley in sitting,
standing and walking positions and situations, Ms. Winkler concluded:

Mr. Miley qualifies for job titles requiring sitting on both
an occasional and a frequent basis, provided that he is able to shift his
weight in his chair and to stand and stretch for micro breaks, as tolerated.
Mr. Miley does not qualify for job titles requiring sitting for prolonged
periods (i.e., approximately greater than 41 minutes) without allowing for a
change in body position.

Standing. Mr. Miley was observed while standing over a period
of 2 hours and 18 minutes, with a maximum sustained duration of 1 hour and 15
minutes.

His standing tolerance is
dependent upon the types of activities he performs. During dynamic standing
tasks, where Mr. Miley was free to move about, there were no observed
difficulties related to standing. He did not report an increase in symptoms
related to dynamic standing.

[50]        
As to bending, Ms. Winkler stated follows:

During assessment of lifting, which required bending at the
trunk to reach the lifting box on the floor, Mr. Miley was observed to hold his
back upright. He reported an increase in low back pain with lifting from the
floor.

Mr. Miley qualifies for job
titles requiring crouching and kneeling on an occasional basis, intermittently
and sustained for short durations. In keeping with his tolerance to bending at
the trunk, if working at lower levels (below knee level), he would perform best
in tasks that can be completed with one hand so that the opposite hand can
provide positional support. He does not qualify for job titles requiring
crouching and kneeling on a frequent basis.

[51]        
Ms. Winkler concluded that Mr. Miley had good balance. She concluded
that he qualified for jobs that required climbing stairs on an occasional basis
and walking on even terrain.

[52]        
Mr. Miley was able to reach, including interchangeably with both arms.
He exceeded expectations. Any difficulties arose when he was required to twist
his torso and when he was required to work below the waist, when at such times
he was required to use his hands to support his upper body. He showed good
tolerance as to neck flexion. Ms. Winkler states that Mr. Miley qualifies for
job titles requiring reaching to all levels on both an occasional and frequent
basis and he performs best at tasks in front of him. He was tested for handling
and Ms. Winkler stated he had no difficulties in this area.

[53]        
As to his ability to lift, Mr. Miley was fit to lift 50 pounds from the
floor to shoulder level and occasionally carry 40 pounds. Ms. Winkler states
that Mr. Miley showed no obvious signs of fatigue, but his tolerance decreased
in bending and crouching activities. He complained to her of low back pain in
prolonged sitting and prolonged standing activities:

Mr. Miley is considered to be
employable (i.e., with some physical restrictions) on both a part-time and a
full-time basis, with the potential to work in limited strength occupations and
he has the potential to handle loads with light and medium strength
occupations. His physical restrictions are listed below and relate primarily to
any work that requires prolonged sitting and standing, and tasks that require
bending through the trunk (bending/stooping, crouching, and lifting).

[54]        
I also conclude that since the writing of Ms. Winkler’s report, Mr. Miley’s
treatment from Dr. Vincent has reduced the pain Mr. Miley experienced. This, in
some respects, tempers her report as to the pain he experiences and his ability
to perform his job.

[55]        
In Ms. Winkler’s report dated September 3, 2013, she refers to Dr.
Vincent’s neurotomy treatment. Ms. Winkler states at page 2:

Cost of Future Care
Recommendations

I have reviewed my report dated November 1, 2012, and based
on my review of this new medical information, I support my initial
recommendations.

With respect to replacement times, my initial recommendation
for ongoing physiotherapy treatments to manage symptoms is set at 4 sessions
per year; given the guarded prognosis, this will likely be required for the
foreseeable future.

With respect to housecleaning,
home maintenance, and yard maintenance, the initial recommendations for
services to assist Mr. Miley to perform these tasks was based on his needs at
the time of the evaluation. Over time, and with participation in an exercise
program, occupational therapy, and physiotherapy, it is anticipated that Mr.
Miley’s participation in these areas will improve. The extent to which Mr.
Miley is able to increase his participation in these areas is difficult to
predict as there is such an individual response to treatment. Given the guarded
prognosis and the potential for re-activating the mechanical back pain, it is
anticipated that Mr. Miley will continue to benefit from assistance with these
roles for the foreseeable future. I defer to my original report for information
regarding the impact of age, and other life changes, on replacement of these
services.

[56]        
In addition, she changes some of her recommendations as to
physiotherapy, occupational therapy and some equipment. These changes are
acknowledged in these reasons.

NON-PECUNIARY DAMAGES

[57]        
Non-pecuniary damages compensate for a loss of the amenities, pain,
suffering and loss of enjoyment of life. They are intended to compensate a
person for those damages up to the date of trial and also for damages that the
person will suffer in the future. The award must be fair and reasonable to both
parties as set out Stapley v. Hejslet, 2006 BCCA 34, leave to appeal
ref’d [2006] S.C.C.A. 100, where Madam Justice Kirkpatrick stated:

[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).

[58]        
At the same time, in determining the amount of the award, it is not the
seriousness of the injuries, but rather “the amount of an award for non-pecuniary
damage should not depend alone upon the seriousness of the injury but upon its
ability to ameliorate the condition of the victim considering his or her
particular situation”: Lindal v. Lindal, [1981] 2 S.C.R. 629 at 237
cited in Stapley at para. 45 [emphasis in Stapley].

[59]        
An award for non-pecuniary damages is not intended to make the exercise
into a form of tariff, rather it is as stated by Mr. Justice Halfyard in Turner
v. Coblenz, 2008 BCSC 1801 at para. 94:

[94]      It is well accepted
that previously-decided cases have limited value which usually consists in
establishing a general range of damages within which the award in a particular
case may fall. No two plaintiffs will ever be the same in age, previous state
of strength and health, occupation and other activities. The injuries sustained
by one plaintiff will never be the same as those received by another, in kind
or severity. The reaction of any two persons to the pain of a similar injury,
or to particular treatments, will be different. The length of time that has
passed between the date of the injury and the date of trial will vary from case
to case, and can be a significant distinguishing feature.

[60]        
The plaintiff seeks an award of $60,000.00 to $75,000.00 to satisfy his
non-pecuniary damages.

[61]        
In support of his claim, Mr. Miley relies on Prempeh v. Boisvert,
2012 BCSC 304. In Prempeh, the female plaintiff’s predominant injuries
related to her low back and right wrist. She received a considerable amount of
physiotherapy. She was away from her work as a care aide for about three
months, returning to work on a graduated basis for about two months. The wrist
injury did not completely recover and her wrist was subject to periods of
aggravation. The plaintiff used a splint on her wrist at work. She continued to
experience persistent and varying levels of pain, discomfort and episodic flare-ups
of low back pain which were aggravated by lifting and prolonged sitting.
Working as a care aide, she was required to wear a lumbar corset. Her back pain
was described as chronic. Flare-ups to her back required her to take time away
from work and on those days she used vacation time. The court found that the
back pain would persist indefinitely and awarded non-pecuniary damages of
$60,000.00.

[62]        
In Devilliers v. McMurchy, 2013 BCSC 730, Ms. Devilliers was a
mother and wife. She suffered chronic, severe back pain arising from a rear-end
motor vehicle collision. Her initial complaints were neck, back and shoulder
pain. The neck and shoulder injuries were resolved for the most part within
five months. Despite her substantial weight loss, the low back pain persisted.
She took some treatments which provided some relief. However, her condition
returned to its original state. The court observed:

[44]      While Ms. De Villiers has
retained some considerable level of function, through the use of medication,
the intensity of her pain when she is not medicated is a distinguishing feature
of this case. The recent increase in her dosage is also a concern, as it points
to the prospect of long-term loss of efficacy. If her pain cannot be
effectively controlled, it appears possible that it may become disabling. I
also take judicial notice of the fact that dependency is a risk with any
opioid, though presumably she will continue to be closely monitored by her
physician.

[63]        
The court awarded Ms. Devilliers non-pecuniary damages in the amount of
$75,000.00.

[64]        
The defendants rely on the following cases as to the amount of general
damages to satisfy Mr. Miley’s claim: Lumley v. Balilo, 2013 BCSC 1052 –
$25,000.00; Rattenbury v. Samra, 2009 BCSC 207 – $30,000.00 and Verhnjak
v. Papa, 2005 BCSC 1129 – $40,000.00.

[65]        
In Lumley, the plaintiff, Ms. Lumley was age 25 at the time of
trial. Her injuries were to the neck and back, and she suffered headaches. The
back injury resolved within two weeks of the accident. Her complaints were
tightness and pain. She had good range of motion. Ms. Lumley was able to pursue
significant physical activities and her injuries were largely resolved within a
year of the accident.

[66]        
In Rattenbury, the plaintiff was age 25 at the time of trial. At
the time of the accident, he was playing soccer at a high level. The plaintiff
alleged that he suffered a concussion exhibited by headaches which resolved in
three days, neck and shoulder injuries that resolved in a few weeks, back
strain and aggravation of a previous shoulder injury. The plaintiff continued
to play soccer at the level he was playing prior to the accident and resumed
playing golf. The court concluded:

[90]      I do conclude, however,
this chronic back pain is only mild in nature, in the nature of a nagging back
pain that does not disable the plaintiff from pursuing his soccer at the
highest level or his golf or any other sports that he used to enjoy, and does not
prevent him from working full time at the business in a more supervisory role.

[67]        
In Verhnjak, the plaintiff was 55 years old when she was
broadsided in a motor vehicle accident. She suffered soft tissue injury to her
neck, shoulder and lower back. She was involved with the care of her husband
until his death and she was so tired after work that she was unable to do many
activities. Her pain was diagnosed as chronic. She was restricted in her
movements by 25 percent. Her prognosis was uncertain and it was not expected
that she would fully recover.

Discussion

[68]        
The defendants argue that the impact in the first accident is
insignificant when compared to the impact in the second accident, suggesting
that any injuries suffered in the second accident by Mr. Miley were more than
transitory. This has been addressed by the court many times. I do not accept
this argument. The defendants provided no evidence, expert or otherwise, which
compared the speeds of the vehicles and the impact forces upon Mr. Miley. An
inference cannot be drawn that if there is insignificant motor vehicle damage
that amounts to little personal injury: Christoffersen v. Howarth, 2013
BCSC 144 at paras. 53-60.

[69]        
Mr. Miley’s back injury is permanent. The most difficult part of the
injury is the pain which he suffered which has been significantly alleviated as
a result of the treatments provided by Dr. Vincent.

[70]        
Mr. Miley’s back pain has been reduced, though he had flare-ups three
times in 2013, none of which exceeded four days.

[71]        
It is anticipated that any reoccurrence of pain will not be as severe.
He will continue to have some difficulties with his recreation, work and house
and yard activities. He will have to be careful not to aggravate his back. In
order to minimize his pain, he will be required to exercise, which includes
“stretching, physiotherapy and low impact aerobics” (Dr. Vincent’s report dated
May 26, 2013). The defendants argue that Dr. Vincent changed his prognosis from
his report of May 26, 2013 to his report on June 12, 2013. Dr. Vincent’s opinion
does not change. Mr. Miley has permanent back injury. Improvement for Mr. Miley
is the degree of pain he will experience.

[72]        
The defendants argue that Dr. Spangehl filled in an ICBC CL19 form which
“noted that Mr. Miley’s low back was stiff and had slightly decreased range of
motion and flexion and extension but that his neck and shoulders were fine.”
That is a form intended to be a summary and not intended to Dr. Spangehl’s last
word on Mr. Miley’s low back injury.

[73]        
The case that is most helpful in assessing Mr. Miley’s non-pecuniary
damages is Prempeh. In that case, there were two injuries. The plaintiff
had to cope with mechanical low back pain and a wrist injury, both of which
affected her work. The plaintiff had flare-ups like Mr. Miley. Mr. Miley’s
other injury was to his neck, which was insignificant. Ms. Prempeh’s wrist
injury was not insignificant and it was subject to episodic flare-ups.

[74]        
I find that considering Mr. Miley’s circumstances and the effect his
injury had on him, a fair and reasonable award for non-pecuniary damages is
$52,500.00.

CREDIBILITY

[75]        
Mr. Miley acknowledged that he was not truthful in his resume when he
applied to Coast Capital for employment. Despite this, Mr. Miley was accurate
and truthful in his evidence. Much of his evidence is supported by medical
evidence, as well as those witnesses such as his wife, his best friend and his
employer.

DIVISIBLE AND INDIVISIBLE INJURIES

[76]        
Mr. Miley discontinued his action against Ms. Horkoff. As a result, it
will not be known who is responsible for the injuries. The defendants argue
that they are not responsible for “any aggravation however long that
aggravation lasted.” The defendants argue that despite it being short-lived, aggravation
should be factored into the award that I make.

[77]        
Mr. Miley stated that he had neck pain after the first accident. His
doctors did not treat him for a neck injury. He had neck pain after the second
accident for which he did not receive medical treatment either. Mr. Miley’s
evidence is that his back pain was aggravated in the second accident.

[78]        
In B.P.B. v. M.M.B., 2009 BCCA 365, leave to appeal ref’d [2010]
S.C.C.A. No. 90, Mr. Justice Chaisson identified divisible and
indivisible injuries at para. 33:

[33]      In a case such as this
where there are multiple causes of a plaintiff’s injury, the core question is
whether the injury is divisible. If it is, a plaintiff can recover from a
defendant only the damages attributable to the injury caused by that defendant.
If the injury is indivisible, subject to considerations I shall discuss, a
plaintiff can recover 100% from the defendant of the damages attributable to
the injury which is caused or contributed to by the defendant regardless of the
contribution to the injury by others (Athey, paras. 17-20).

[79]        
His doctors did not treat Mr. Miley for a neck injur,y which lasted as
little as two days to two weeks, after the first accident. It is even less
significant after the second accident. His neck injuries placed no limitations
on him and did not factor into his activities and recreation, his work or his
activities at home. Dr. McKenzie states:

It remains my opinion that with
this accident this man will have no ongoing problems in his neck. He also had
some neck pain with an accident in March 2011. In my opinion neither of those
accidents will give him any long term neck pain.

[80]        
Given the insignificance of the neck injuries, I do not find it
necessary to state that the injury is divisible. The second accident aggravated
the first injury, which, according to Mr. Miley, lasted about one to two weeks.
The medical evidence does not support a divisible injury.

MITIGATION

[81]        
The defendants argue that Mr. Miley failed to mitigate his damages by
allowing himself to become deconditioned and gain weight after the accident.
Mr. Miley was not participating in volleyball as he was unable to due to his
injuries.

[82]        
On December 9, 2010, Dr. McKenzie recommended that Mr. Miley should be
“very careful with his weight” and that he “looks quite deconditioned”. He
recommended that Mr. Miley lose weight and continue to exercise his core
“within the limits of his pain”.

[83]        
Mr. Miley is 6’ 2 ½“.
At the time of the accident, he weighed 185 pounds. He weighed as much as 205
pounds when he saw Dr. McKenzie on October 23, 2012. At the time of trial, he
weighed 189 pounds.

[84]        
Dr. McKenzie stated that some people had difficulty following the advice
to exercise as pain prevents them from pursuing exercise. He stated that there
has to be some control over the pain before a person can successfully exercise.

[85]        
The defence has not produced any evidence to suggest that Mr. Miley’s
pain would be less severe had he lost weight and exercised.

[86]        
The onus is on the defendants to prove that Mr. Miley would have been
better off had he followed all recommendations as to the exercise and weight
loss program. In order to be successful for failure to mitigate, the defendants
must prove two things: first, that the plaintiff acted unreasonably by not
following the recommended treatment and, second, the extent, if any, that Mr.
Miley’s damages would have been reduced had he acted reasonably: Chiu v.
Chiu, 2002 BCCA 618 at para. 57.

[87]        
In fact, Mr. Miley now has control over his pain. He has lost weight. He
is engaged in a home exercise program. He has taken over 32 physiotherapy
treatments.

[88]        
The defence have failed to prove that Mr. Miley failed to mitigate his
damages.

SPECIAL DAMAGES

[89]        
Mr. Miley has proven his special damages in the amount of $7,517.36. I
award special damages to Mr. Miley in that amount.

LOSS OF EARNING CAPACITY

[90]        
Mr. Miley seeks damages for loss of earning capacity. He seeks the
equivalent of one year’s earnings: $65,000.00. This amount is based on an
average of Mr. Miley’s earnings before bonuses and employment benefits. I have
concluded that this calculation must be based on his earnings with Coast
Capital in 2010, 2011 and 2012. Mr. Miley’s earnings prior to his employment
with Coast Capital were significantly less.

[91]        
The defendants argue that there is no real or substantial possibility
that Mr. Miley will suffer a loss of future income.

[92]        
The defendants argue that Mr. Miley, since the accident, completed the
necessary training to become a certified business communicator. Further, since
the accident, he missed very few days of work and has not suffered any loss of
income. He performed his job well and worked hard. His back injury will not
interfere with his ability to do his job.

[93]        
In seeking damages for loss of earning capacity, the test is not whether
the person is still earning income or able to earn income: Jurczak v. Mauro,
2013 BCCA 507 at para. 24:

…damages for loss of future
earning capacity does not compensate projected future earnings, but the
capacity to earn. In other words, it compensates for the loss or impairment of
a capital asset: Rosvold v. Dunlop, 2001 BCCA 1.

[94]        
The legal burden that is imposed on Mr. Miley is that there is a real
and substantial possibility that he will suffer a future loss of income as a
result of the injuries that he suffered in the motor vehicle accident. The
proof is based on a possibility, not on a balance of probabilities. The court
conducts an assessment based on either the earnings approach or the capital
asset approach.

[95]        
The court in Perren v. Lelari, 2010 BCCA 140 stated:

[32]      A plaintiff must always
prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, that there is a real and substantial
possibility of a future event leading to an income loss. If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown. The former approach will be more useful when the loss is
more easily measurable, as it was in Steenblok. The latter approach will
be more useful when the loss is not as easily measurable, as in Pallos
and Romanchych. A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment. That was the case in both Pallos and Parypa.
But, as Donald J.A. said in Steward, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a future
loss. [Emphasis in original]

[96]        
After the accident, Mr. Miley continued his employment as a corporate
communication officer with Coast Capital with very little time missed from
work. He relied upon his training and experience as a professional writer and
editor, which he obtained prior to the accident and his employment with Coast
Capital.

[97]        
Mr. Miley continued his work and received bonuses and pay raises after
the accident. As well, he was able to qualify as a certified business
communicator.

[98]        
Despite this, Mr. Miley has a permanent injury to his back which causes
him pain. Even though he remained employed by the same employer pre-accident,
that is not a reason to foreclose a claim for loss of earning capacity: Morgan
v. Galbraith, 2013 BCCA 305 at paras. 24, 53 and Pallos v. Insurance
Corp. of British Columbia, [1995] B.C.J. No. 2 at paras. 37-44 (C.A.).

[99]        
The medical evidence confirms Mr. Miley’s back injury. Dr. Vincent and
Dr. McKenzie both agree; despite Dr. Vincent’s successful treatments to reduce
pain, the treatment does not cure the injury. They agree that Mr. Miley will
have some degree of low back pain which will affect his work and other
activities. It is anticipated that he will likely have reoccurring pain. He
cannot participate in activities that would aggravate his back. He will be
required to maintain his weight and keep himself conditioned. Mr. Miley is
likely to require further neurotomy treatments.

[100]    
At the time of trial, Mr. Miley’s back pain had reduced, however, he
will always be subject to flare-ups. He had several of them in 2013. These
“flare-ups” could cause him to miss work or prevent him from functioning as he
should in the event of a flare-up. This would interfere with his work if he
were self-employed versus employed with an institution such as Coast Capital.
Mr. Miley is “employable” with some restrictions. Ms. Winkler, the occupational
therapist, states:

…In other words, Mr. Miley
would not have the physical capacity to be able to access, in an open labour
market, any jobs that have requirements for those restrictions as given below,
despite being qualified in other ways (for example, by education, training,
interests and aptitudes). He may require modified job duties or other
environmental/ergonomic intervention related to the restrictions listed below,
and this may limit the number of job titles that he is able to obtain or
maintain.

The restrictions which place Mr.
Miley within the category of employable are as follows:

1. Sitting. He is
restricted from job titles requiring sitting for prolonged periods (i.e.,
greater than 45 minutes) without allowing for a change in body position.

2. Standing. He is
restricted from job titles requiring static standing on a frequent basis, or
static standing for period of more than 24 minutes before allowing for a change
in position.

3. Bending. Mr. Miley is
restricted from job titles requiring bending on a frequent basis, or sustained
bending without the ability to use support from his arms.

4. Crouching. He is
restricted from job titles requiring crouching and kneeling on a frequent
basis, or sustained crouching without the ability to use support from his arms.

5. Strength. Mr. Miley is
restricted from job titles requiring lifting loads weighing more than 50 pounds
on an occasional basis, and carrying loads weighing more than 40 pounds on an
occasional basis. He is restricted from material handling on a frequent basis.

With respect to Mr. Miley’s
current occupation as a writer/editor for Coast Capital Savings, this position
is considered a sedentary job title, defined by the NOC as requiring handling
loads weighing up to 11 pounds. Mr. Miley meets the strength requirements of
this position.

His job position requires
sitting on a constant basis, that is sitting is the primary positional
requirement. Mr. Miley has assessed limitations to sitting. He requires regular
micro breaks to stand for short durations so that he can manage his symptoms,
and therefore, he is considered employable versus competitively employable in
this position. Mr. Miley is in part able to continue to work in his current
position that requires constant sitting because:

1.         He is currently able to manage
his symptoms by shifting his weight in his chair, and standing up from his work
station; and

2.         His work flow allows for him to
take such breaks.

However, should Mr. Miley’s
current strategies of regularly changing his posture and position no longer be
effective for him, he would have difficulty meeting the job demands of this
position.

[101]    
The definition that Ms. Winkler uses as “employable” is as follows:

The individual meets most of the
requirements of work within given strength categories but has limitations that
restrict access to the full range of occupations for which he is otherwise qualified.
He may require a sympathetic employer, modified work hours or
environmental/ergonomic intervention.

[102]     There is
no evidence before me that Mr. Miley intends on changing his occupation as a
professional writer. In fact, the evidence is that he intends to continue with
that occupation or something similar to it.

[103]     At the
same time, in considering Mr. Miley’s loss of earning capacity, it is not
realistic that Mr. Miley would pursue labour jobs or jobs not from his chosen
field and for which he has not been educated.

[104]    
The best method in assessing Mr. Miley’s loss of earning capacity is to
consider those factors in Brown v. Golaiy, [1985] B.C.J. No. 51
(S.C.):

[8]        The means by which the value of the lost, or
impaired, asset is to be assessed varies of course from case to case. Some of
the considerations to take into account in making that assessment include
whether:

1. The plaintiff has been rendered
less capable overall from earning income from all types of employment;

2. the plaintiff is less marketable
or attractive as an employee to potential employers;

3. the plaintiff has lost the
ability to take advantage of all job opportunities which might otherwise have
been open to him, had he not been injured; and

4. The plaintiff is less valuable to himself as a person
capable of earning income in a competitive labour market.

[105]     Mr. Miley
is less capable in jobs where he is required to sit, stand or crouch. This means
any physical activity which requires his trunk to have flexion. These
difficulties make him less marketable. It cannot be said that Mr. Miley can
take advantage of job opportunities where flexibility in his trunk is required.

[106]     Mr. Miley
is less valuable to himself in that if he were self-employed he may not be able
to take advantage of all potential earning contracts if his injury caused
fatigue or a flare-up.

[107]     Mr. Miley
did not say when it was that he would retire. Whether Mr. Miley will retire
early due to his injuries, at age 63 as suggested by his counsel, is unknown.
Whether his injuries will affect his earning capacity over the course of the
next 24 years is also unknown. Further, there are negative contingencies such
as unemployment, and other health problems not related to his injuries as a
result of the motor vehicle accident.

[108]     In all of the
circumstances which include Mr. Miley’s past earnings, his limitations which
did not exist prior to the motor vehicle accident and the vagaries of life that
are not predictable, I award Mr. Miley $52,000.00 for damages for loss of
earning capacity. In coming to this amount, I have used a salary of $50,000.00
per year and have used the multipliers based on Mr. Carson, the economist’s income
loss multipliers.

FUTURE COST OF CARE

[109]    
Ms. Winkler has prepared a future cost of care analysis. She states:

The purpose is to address the
effects of Mr. Miley’s injuries on his ability to perform activities of daily
living and to provide recommendations for services, equipment and supplies to
enable him to function at a level that is as close [as] possible to his
pre-injury status.

[110]     She bases
her opinions on the physical capacity testing which she did and her interviews
with Mr. Miley on October 15 and 18, 2012. In coming to her opinions, Ms.
Winkler relied on Dr. McKenzie and Dr. Vincent’s medical reports, reports from
physiotherapists, clinical records, an MRI report and an x-ray report. In
giving her opinion as to cost of future care, she assumed that Mr. Miley’s role
in the home relating to homemaking and housekeeping had been impacted by the
motor vehicle accident and that Mr. Miley and his wife share household duties.

The Law

[111]     The
purpose of an award of cost of future care is to restore the injured person to
his or her position as if the accident had not occurred. The courts must award
cost of future care so as to ensure the injured person has adequate future
care: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 78-79 (S.C.),
aff’d [1987] B.C.J. No. 1833 (C.A.).

[112]     The
injured person must establish medical justification for each expense and each
expense must be reasonable: Aberdeen v. Langley (Township), 2007 BCSC
993 at para. 198, varied an issue of contributory negligence; 2008 BCCA 420.

[113]    
Medical justification is not limited to doctors’ opinions, but such
evidence may come from qualified health practitioners: Gregory v. Insurance Corp.
of British Columbia, 2011 BCCA 144 at para. 39:

[39]      I do not consider it
necessary, in order for a plaintiff to successfully advance a future cost of
care claim, that a physician testify to the medical necessity of each and every
item of care that is claimed. But there must be some evidentiary link drawn
between the physician’s assessment of pain, disability, and recommended
treatment and the care recommended by a qualified health care professional: Aberdeen
at paras. 43, 63.

[114]    
In Meghji v. Lee, 2011 BCSC 1108 at para. 306, varied 2014 BCCA
105, Johnston J. states:

[306] Milina makes it
clear that every effort must be made to avoid duplication between awards for
cost of future care and awards for loss of future income. To the extent that
items recommended as part of a future care claim are items that might
ordinarily have been purchased in any event out of the plaintiff’s earnings, a
court must be careful to avoid duplication. Duplication can be avoided by
awarding only the increase in costs beyond those that would ordinarily have
been incurred by a plaintiff if an accident had not occurred, and by awarding
as close to full indemnity for future earnings loss as is reasonable.
Duplication can also be avoided by awarding reasonably full indemnity for the
future care expenses and then reducing the future earnings loss claim to reflect
that portion of future income that would ordinarily have been spent on items
that have been awarded as part of the future care claim.

[115]     The test
for an appropriate award of future care costs is objective based on medical
evidence.

[116]     Dr.
McKenzie was familiar with Ms. Winkler’s report. He recommends that Mr. Miley
have a home-based exercise program and, once he is familiar with it, the
requirements of physiotherapy will not be needed. Dr. McKenzie recommends
physiotherapy when Mr. Miley has “flare-ups”. Dr. McKenzie recommends that Mr.
Miley have the services of a kinesiologoist in his exercise program. He agrees
with Ms. Winkler’s recommendation of a gym pass.

[117]     He further
recommends that Mr. Miley have the services of an occupational therapist for ergonomic
assessment of his office station. Dr. McKenzie agrees that Mr. Miley should
have some assistance with the heavier aspects of housework and yard work as
these acts will likely cause “flare-ups” to his back. Dr. McKenzie does not see
the need for an electric height adjustable desk, but rather suggests a higher
desk and stool.

[118]     The
defendants criticize Mr. Miley for the purchase of his home which he knew, due
to its age, would require some work and, further, the size of the lot requires
a lot of yard maintenance. The home Mr. Miley and his wife purchased is not
unreasonable. Mr. Miley is not the only person in the family. The home was
purchased to meet his needs and the family’s needs, which have to be considered.
Mr. Miley’s wife is capable of doing housekeeping and yard maintenance. It is
Mr. Miley’s limitations that the court must address as it relates to his home.

[119]     Ms.
Winkler, in making her recommendations, was clear that she was dealing only
with Mr. Miley’s role in housecleaning.

[120]     The
defendants argue that neither Drs. McKenzie nor Vincent merely endorse Ms.
Winkler’s report without independent thought or testing.

[121]     Dr.
McKenzie has followed Mr. Miley’s back injury for approximately four years. Dr.
Vincent has treated Mr. Miley for about two years. Dr. McKenzie’s diagnosis of
facet joint injury was confirmed by Dr. Vincent as a result of tests and
treatment.

[122]     These are
independent assessments of Mr. Miley. Drs. Vincent and McKenzie are not
occupational therapists. I find that Ms. Winkler’s tests on Mr. Miley support
the findings of Dr. Vincent and Dr. McKenzie.

[123]     The
defendants argue that Mr. Miley does not need to travel to Victoria for
treatment with Dr. Vincent and that other doctors can provide the care that he
needs. I accept Mr. Miley’s argument that he has confidence in Dr. Vincent
based on Dr. Vincent’s previous successes. As with the choice of counsel, Mr.
Miley is entitled to a choice of his doctor so long as it is reasonable. I find
it reasonable that Mr. Miley travel to Victoria for the treatments from Dr.
Vincent.

[124]     The future
care cost sought by Mr. Miley and as compiled by Ms. Winkler and translated
into present value calculations, are set out in Mr. Miley’s counsel’s written
submissions based on Mr. Carson’s cost of care multipliers.

[125]     I accept
the need for a one-time consultation with a kinesiologist in the amount of
$1,827.00, a gym pass to age 70 of $7,515.00 and a one-time consultation with
an occupational therapist of $1,398.00, together with travel costs of $96.00,
non-prescription drugs of $601.00, cost of a height adjustable desk of $950.00,
together with delivery and set-up of $90.00 and a sit and stand stool of
$349.50.

[126]    
The recommendation of physiotherapy is not in keeping with Dr.
McKenzie’s comments, nor for that matter, Dr. Vincent’s. The need for
physiotherapy should be limited to times when Mr. Miley has “flare-ups”. In
2013, Mr. Miley had three “flare-ups”. Using the measure of three times a year
at $55.00 per session equals $165.00 per year until age 70. I see no need for
an assessment by a physiotherapist as Mr. Miley’s conditions and back problems
are well known and documented. I find that physiotherapy costs based on $55.00
per session at its present day value is $2,835.53.

[127]    
The evidence before me is not that Mr. Miley cannot do certain housecleaning
activities, but rather he is limited in some aspects of housekeeping. Those
tasks, as identified by Ms. Winkler, are:

Such tasks include cleaning the
bathrooms and floors as well as vacuuming: they are tasks that involve standing
combined with bending and crouching, for which Mr. Miley has assessed
limitations.

[128]     I would
exclude vacuuming from that list. As a result, I will use the lowest figure of
$1,700.00 per year that Ms. Winkler used, rather than an average of the highest
and lowest figures. As a result, up to age 70, the present value calculations
for housekeeping, including GST, is $30,675.23.

[129]     Mr. Miley
seeks present value calculations of $37,981.00 for home maintenance. This
amount is based on skilled and unskilled labour balanced equally. The
assumption is that Mr. Miley will own this home or another home with similar
requirements up to age 70. This, of course, is unknown. For purposes of such
contingencies, I have discounted the amount sought by 25 percent. I award Mr.
Miley $28,485.75 for home maintenance.

[130]     Mr. Miley
seeks a present day value for yard maintenance of $25,395.00 up to Mr. Miley
reaching age 70. I reduce this amount by 25 percent for the same reason I
reduced home maintenance. In addition, I would reduce the amount keeping in mind
that the home is also owned by Mr. Miley’s wife, who is capable of performing
some yard maintenance. She maintains a flower bed that she enjoys working on,
including its weeding. I heard no evidence to suggest that she would not be
able to mow the lawn.

[131]    
In Pierce v. Pandhi, 2002 BCSC 791, Mr. Justice Rogers made this
comment:

[14]      Mrs. Pierce also claims for the cost of having a
gardener repair and maintain her rock gardens. While looking after one’s house
is a necessity and so, in the proper circumstances, might bottom an award to
pay someone else to do the work, keeping a decorative garden is an exercise in
aesthetics. Mrs. Pierce may not now derive as much enjoyment as she used to
when she looks out the window of her house, and for that loss she is entitled
to compensation in non-pecuniary damage. It is not an item of future care as
contemplated by McLaughlin J (as she then was) when she said in Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 (B.C.S.C.):

The test for determining the
appropriate award under the heading of cost of future care, it may be inferred,
is an objective one based on medical evidence. These authorities establish, (1)
that there must be a medical justification for claims of cost of future care
and, (2) that the claims must be reasonable.

and:

It follows that I must reject the plaintiff’s submission
that damages for cost of future care should take into account amenities which
serve the sole function of making the plaintiff’s life more bearable or
enjoyable. The award for cost of care should reflect what the evidence
establishes is reasonably necessary to preserve the plaintiff’s health. At the
same time it must be recognized that happiness and health are often
intertwined.

[132]     I would
expect Mr. Miley and his wife would require someone annually to do the heavier
work. Mr. Miley by all accounts, prior to the accident, was capable of doing
this work and after the accident was not. Taking into consideration all the
factors to which I have referred, using the least amount in the annual range of
yard maintenance used by Ms. Winkler; that is, $740.75, dividing it in half to
reflect Mrs. Miley’s share, I allow the sum of $6,681.79 as present day value,
which includes GST.

SUMMARY

[133]     The
damages award are:

COSTS

[134]    
Unless the parties address me on the matter of costs within 30 days of
receiving these reasons, I order that the plaintiff will have his costs and
reasonable disbursements pursuant to Appendix B, Scale B of the Supreme
Court Civil Rules, B.C. Reg. 168/2009.

“H.C.
Hyslop J.”

HYSLOP J.