IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140919

Docket: M114317

Registry:
Vancouver

Between:

Robert Granger
Debou

Plaintiff

And

Georg Besemer

Defendant

– and –

Docket: M120073

Registry:
Vancouver

Between:

Robert Granger
Debou

Plaintiff

And

Paolo Tessarolo
and Carmela Tessarolo

Defendants

Before:
The Honourable Mr. Justice Cohen

Reasons for Judgment

I.                
Introduction

[1]            
The plaintiff, born April 24, 1946, is an
experienced courtroom lawyer. He was called to the bar in 1971, practicing in
the areas of criminal, civil, and family law.

[2]            
He started his career with the City of Vancouver
Prosecutor’s Office, after which he joined the British Columbia Attorney
General’s Department. In 1976, he and two other former prosecutors started
their own firm. In 1985, the plaintiff joined the law firm of Campney &
Murphy, where he established a busy litigation practice. In 1995, he left that
firm to start a solo practice in West Vancouver, where he practices to this day
with the assistance of his longtime paralegal, Ms. Linda Kirkham.

[3]            
The plaintiff has experienced several motor vehicle
accidents, two of which are the subject matter of this lawsuit. On August 23,
2009, while riding as a passenger in a motor vehicle being driven by his wife,
traveling westbound on Highway 10 near Chilliwack, the plaintiff sustained
injuries when the vehicle was struck from the rear by a motorhome pulling a
heavy trailer (“the 2009 accident”). Immediately after the impact, the
plaintiff felt pain on his right side, in the lower lumbar. He got out of the
vehicle and took some pain medication. The pain was with him for a few days. He
took Advil and muscle relaxants and, after a visit to his doctor, attended
physiotherapy and a chiropractor. He did not miss any time from his practice.

[4]            
On February 21, 2010, the plaintiff was involved
in another motor vehicle accident when he was on his way to Ms. Kirkham’s
home (“the 2010 accident”). He was driving eastbound on Dollarton Road, in
North Vancouver, in his 2005 Cadillac when he was struck by a vehicle
travelling westbound that veered across the centerline and struck the
plaintiff’s vehicle’s driver side door. The plaintiff’s vehicle sustained
significant enough damage that it had to be written off. The plaintiff was transported
to the Lions Gate Hospital. Upon his release, he took only two days away from
his practice as he had a trial commencing on March 1, 2010, and had to prepare
for the case. He was prescribed painkillers and anti-inflammatory medication.

[5]            
Liability for the 2009 and 2010 accidents is not
in issue. The issue to be determined is the appropriate quantum of damages.

II.              
The plaintiff’s alleged accident-related
injuries

[6]            
The plaintiff says that the pain he has suffered
constantly since the 2009 accident, which he claims was magnified by the 2010
accident, has left him struggling to continue his practice. He claims that his
chronic pain and severe spasms have interfered with his ability to properly
prepare for trials to his usual standard, that his ability to focus and retain
information is greatly reduced, and he has difficulty recalling the names of
witnesses he has been dealing with for months.

[7]            
The plaintiff says that he minimizes the amount
of medication he takes, as otherwise he would not be able to even make it to a
trial. He says that if he medicated himself sufficiently to remove his pain and
the spasms, he would not be able to cognitively function because of the side
effects. For this reason, he ingests the medication sparingly.

[8]            
He contends that his episodes of disabling pain
have interfered with his ability to practice his profession and that the
pleasure he experienced over decades of practicing law has now become
emotionally overwhelming and intolerable.

[9]            
The plaintiff says that his accident-related injuries
have made it more difficult for him to deal with the emotional stress of
litigation, including managing and supporting clients who are under extreme
emotional and financial stress. He also says that his disrupted sleep and
constant pain have, literally, on occasion brought him to his knees.

[10]        
The plaintiff says he has had to turn away a
number of prospective clients. As well, his confidence in himself as counsel
has been shaken. In particular, he mentions two former clients he represented
in lengthy matrimonial trials who have since stated that they no longer trust his
skills as counsel because of his post-accident physical and emotional condition,
and his reduced capacity to manage or finalize their disputes.

[11]        
According to the plaintiff, before the
accidents, he enjoyed the daily drive from his home in Richmond to his office
in West Vancouver, as well as his drives to attend court in locations
throughout the lower mainland, and at times outside the lower mainland. He says
that this is no longer the case. He cites as an example a recent work-related
road trip that interrupted his sleep and set in motion spasms that continued
for several days, making it necessary for him to take narcotic medication to
give him some mobility.

[12]        
The plaintiff says that, post accidents, his
entire life has been altered by pain. He notes difficulty walking down stairs
due to shooting pain, and he feels embarrassed by his disability noting that he
had to move his Canucks season tickets to seats closer to the elevator. He
plans every outing to minimize the amount of walking. He recently asked his
doctor to assist him with an application for a handicap sticker because of his
challenges with mobility.

[13]        
Because of his pain, the plaintiff says that he has
to leave social gatherings with family or friends early in the evening and
drive himself home. He cannot enjoy a glass of wine when he is taking
painkillers, and he is no longer as engaged as he once was with the activities
of his children and grandchildren.

[14]        
As well, the plaintiff’s injuries have limited
his ability to travel. In 2013, he and his wife travelled to Ottawa and Toronto,
but he was not able to participate in visiting tourist sites, so he sat while
family members engaged in tourist activities.

[15]        
As for his future plans, before the accidents,
he had not planned to take early retirement from practice. He felt that so long
as he had the physical and mental capacity, he would continue to practice,
given his love for his work and joy of working with his clients.

[16]        
The plaintiff seeks non-pecuniary damages in the
range of $135,000 to $175,000 to compensate him for his loss of enjoyment of
life given the serious impact of the accident-related injuries on his work and
personal life. In addition, he seeks $571,334 for past income loss; future
income loss of $801,677; special damages of $34,886.76; cost of future care in
the amount of $66,175; costs of future rehabilitation in the amount of $50,000;
and an in trust claim of $20,000.

III.            
The defence position

[17]        
The defence submits that the plaintiff possibly
suffered minor soft tissue injuries to his neck and back in the accident, and
probably suffered minor injuries to his neck and back in the 2010 accident. The
defence contends that non-pecuniary damages are in the range of $45,000 to $60,000;
that the plaintiff has not proven a claim for past income loss; that the
plaintiff has failed to prove that there is a real and substantial possibility
of a future event leading to an income loss; and, with respect to special
damages and future care costs, the evidence supports a self-directed exercise
regime, rather than passive therapy, or working with a personal trainer.

IV.           
The medical evidence

[18]        
The plaintiff’s accident-related injuries are
complicated by the fact that he sustained injuries in both of the two
accidents, and that four years after the 2010 accident, he still experiences
pain and discomfort. This length of recovery period, according to the medical
experts, is much longer than would normally be expected from accident-related
soft tissue injuries.

A.             
Dr. Armstrong

[19]        
Dr. John B. Armstrong, who was qualified to
testify as an expert in complex chronic non-cancer pain, earned a Ph.D. in
Neurology and Neurosurgery at McGill University. He is a former Assistant
Professor in the Faculty of Medicine at the University of Toronto, and a former
Staff Neurologist at the Hospital for Sick Children and the Montreal Children’s
Hospital where clinically he concentrated on the management of neuromuscular
disorders, epilepsy, and headache, which led him to an interest in clinical
pharmacology.

[20]        
Beginning in 1994, his interest has been focused
on the assessment and management of patients suffering from chronic non-cancer
pain and associated musculoskeletal, neurological, and psychiatric disorders.
Until his retirement in 2012, he was one of a select group of physicians
authorized by Health Canada and the College of Physicians and Surgeons of
British Columbia to prescribe methadone.

[21]        
Dr. Armstrong has also worked in multidisciplinary
pain assessment and management programs at the Thorson Pain Rehabilitation
Clinic in North Vancouver and the Metro Rehab Centre in Vancouver and Surrey
where he dealt exclusively with the assessment and management of chronic pain
arising from a wide range of disorders and conditions. For five years, he was a
consultant on the Complex Pain Service at the Vancouver General Hospital. He is
also a co-founder and co‑chair of the British Columbia Persistent Pain
Network, which is a consortium of physicians dedicated to establishing
consensus in and to improving the management of chronic pain patients in
Canada.

[22]        
Dr. Armstrong met with and assessed the
plaintiff on January 17, 2014. In his report dated January 23, 2014, the doctor
noted that following the 2010 accident the plaintiff underwent treatment that
included physiotherapy, chiropractic care, massage, acupuncture, and a personal
trainer, and that any benefits from these treatments have been temporary. Dr. Armstrong
notes in his report that he found the plaintiff to have a chronic axial
(primarily cervical and lumbopelvic) myofascial disorder and spinopelvic ring
dysfunction (SPRD) caused by a bilateral disorder of his sacroiliac joints.

[23]        
He explained that the spinopelvic ring (SPR) is
comprised of the lower two lumbar vertebral segments (L4-5 and L5-S1), the
sacrum, and sacroiliac joints at the back; the semi-circular pelvic brim around
each side; and the symphysis pubis in front. He explained that in a motor vehicle
accident, when the pelvis is relatively fixed by a lap belt, the forces applied
in the collision can cause strain or tearing in the spinopelvic ligaments and
in the anterior capsule of the sacroiliac joints. These soft tissues normally
stabilize the SPR, allowing only a few degrees of rotational and a few millimeters
of translational movement. Once loosened by injury to these soft tissues, the
SPR often becomes increasingly unstable over time as the individual continues
his or her day to day activities. Ultimately, this leads not only to instability,
but also misalignment of the SPR. The effects of misalignment can be
transmitted upwards and downwards in the body, perpetuating a variety of
otherwise enigmatic and persistent upper axial and lumbopelvic symptoms such as
neck and low back pain and stiffness.

[24]        
Dr. Armstrong opines at page 12 of his
report that the plaintiff’s chronic axial myofascial disorder is “aggravated by
persistence in normal day-to-day activities including work”. Further, he adds
at page 16 that “[t]he natural history of unresolved chronic pain is that
patients find it continuously difficult to manage physically, emotionally,
cognitively, and socially in their everyday lives and at work.”

[25]        
On the issue of causation, Dr. Armstrong
opined at page 14:

C. Causation

(90) In my opinion, the forces applied in
MVA-1 to the soft tissues of his spinal axis were probably sufficient to have
overloaded and injured these structures, causing an acute exacerbation of his
pre-existing but previously episodic axial myofascial disorder.  and (b)
initiating sacroiliac joint dysfunction.  The unresolved myofascial disorder
was exacerbated by MVA-2 and became chronic owing primarily to the perpetuating
effects of the accompanying and unresolved injury to his SPR and to a lesser
but still material extent to the increased muscle tension resulting from
ongoing stress related to the MVAs and his abnormal posturing and
deconditioning consequent to attempted pain avoidance.  There had been the
development of chronic pain and the possible occurrence of neuroplastic changes
that would likely get worse in the future if his pain persisted.

(91) Absent
MVA-2 or other similar trauma about which I am unaware, it is my opinion that Mr. DeBou
would not likely have experienced an injury to his SPR.  Absent the injury to
his SPR, SPRD would likely not have developed and the myofascial disorder
consequent to MVA-1 would likely have resolved within 12 months (as in the
previously mentioned 85-90% group).  Nor would he have developed persistent
chronic pain over the past 4 years with its complications as noted.

[26]        
Dr. Armstrong set out in his report a list
of recommendations for the plaintiff’s future care, stating that, if it is
possible to do so, resolving his myofascial disorder to a greater extent will
likely provide him with considerable relief. The doctor opined that this can be
accomplished by a more focused and carefully supervised program of
rehabilitative exercise aimed initially at correcting his sacroiliac joint
problem in order to re-stabilize the plaintiff’s SPR. Dr. Armstrong also
said the plaintiff should minimize any future chiropractic, manual, deep
massage, manipulative treatment or other forms of passive therapy, as such
modalities are to the exclusion of focused active therapy.

[27]        
Dr. Armstrong said that customized
physiotherapy sessions cost $75-100 per hour and he estimates that the
plaintiff would need about 24 sessions over the course of eight weeks. Dr. Armstrong
went on to say that the plaintiff “should remain off work at least while
efforts are underway to align and stabilize his sacroiliac joints, not only for
logistical reasons but also because meeting physical challenges on the job
could be expected to compete with his efforts in the rehabilitation clinic”
(page 15). An “eventual graduated return to work” should be at the
discretion of the plaintiff’s physiotherapist and family physician (page 15).

[28]        
If the plaintiff’s sacroiliac joints are aligned
and stable, then he should pursue a steady course of stretching and core
strengthening exercises under the supervision of a physiotherapist, eventually
graduating to a self-managed program with visits to a physiotherapist twice
monthly. Dr. Armstrong notes that this process would take up to a year of
regular daily and disciplined exercise. He suggests that maintenance work can
best be done with supervised membership at a gym which costs about $1,800 for
the first year and $1,200 annually thereafter. As well, he recommended that the
plaintiff attend counseling sessions with a clinical psychologist for 18
sessions of one hour each at $175 per hour.

[29]        
Dr. Armstrong recommended that if the
plaintiff’s pain management skills prove to be less than robust at maximum
medical improvement (which the doctor opined he has not yet reached) then he
would benefit from a group-style multidisciplinary program of pain management
at a cost of $15,000.

[30]        
In his report, under the heading of prognosis, Dr. Armstrong
said:

F. Prognosis

(109) For the foreseeable future, it is
certain (100% chance) Mr. DeBou will continue to experience chronic pain,
emotional, social and cognitive distress, sleep disorder with low energy and
daytime fatigue, and diminished physical capacity which have persisted because
of the chronic myofascial disorder, core weakness, and SPR instability and
misalignment.  The foregoing conditions are unlikely to improve in the presence
of ongoing sacroiliac joint dysfunction.  Little or no improvement is to be
expected in the foreseeable future absent successful physical rehabilitation to
re-establish SPR stability and alignment, restore axial and para-axial soft
tissue function, and build additional core strength.

(110) If these treatment and rehabilitative
goals can be achieved, his symptoms and physical capacity will likely improve
but, when I saw him, no firm prognosis could be given as to the extent of any
improvement.  Generally speaking, the longer a chronic myofascial disorder and
SPRD persist, the less favorable is the chance for significant improvement with
additional rehabilitation.  In Mr. DeBou’s case, because when I saw him,
he had had his physical problems for about 4 years, it would be my opinion that
he is less likely to obtain significant improvement with additional attempts at
targeted rehabilitation, but, in my further opinion, he should have the
rehabilitative opportunity to try reaching a higher level of recovery as much
is at stake for him.

(111) Increased sensitivity to pain is
likely to diminish over time if the pain experience becomes less severe with
additional appropriate treatment and physical rehabilitation.  Because his
chronic pain has been present for more than 4 years, there is the possibility
that increased sensitivity to pain has already developed in his nervous system
owing to neuroplastic changes.  The presence of neuroplastic change would
likely mean, even with additional successful treatment, his prognosis for
achieving a reduced pain state would be extremely guarded.  When I saw him, it seemed
unlikely he had developed such changes.  In my opinion, it is most unlikely
that, in any event, he would become pain-free and his pain possibly would get
worse if neuroplastic change has developed or does eventually develop in his
nervous system.

(112) For the foreseeable future, it is
certain (100% chance) Mr. DeBou will continue to experience a chronic
myofascial disorder, absent additional and successful physical rehabilitation
for his underlying problems of SPRD and diminished core strength.  Once again,
it is not possible to predict how much improvement, if any, he might obtain. 
The outlook for whether he could recover to his level of physical function as
it would be today, but for the MVA, is very guarded.

(113) His
overall prognosis is reflected in the prognosis of other patients with chronic
pain.  In his case, the prognosis is very guarded, indeed, in respect to him
achieving diminished pain and full recovery of physical, sleep, recreational,
social, household and occupational functions.

[31]        
The defence pointed out that in his report Dr. Armstrong
stated that the plaintiff appeared not to be experiencing “chronic pain
syndrome”, which occurs when physical incapacity and emotional distress become
cognitively overwhelming and the individual begins to think and behave in
maladaptive ways. Dr. Armstrong said, “While he was experiencing cognitive
distortions about pain, exercise and disability, his behavior remained, for the
most part, adaptive in that, for example, he was going to work regularly.” The defence
also pointed out that the doctor stated that he did not find elements of
neuropathic pain in the plaintiff’s presentation, “which leaves it uncertain as
to whether he has developed or will develop neuroplastic change should his
chronic musculoskeletal pain persist.” Dr. Armstrong also noted that he
did not find active myofascial trigger points, “but this did not rule out that
his muscles were harboring latent ones that likely become active only under
certain conditions, for example, when he is more active, fatigued or stressed.”

B.             
Dr. Quirke

[32]        
Dr. David B. Quirke was qualified to
testify as a general practitioner with special training and expertise in
musculoskeletal pain disorders. He has completed the expert M.D. program in
Rheumatology and Physical Medicine, and has special training and expertise in
the examination and treatment of soft tissue injuries to the spine. He works at
the Canadian Back Institute Clinic in North Vancouver, and has presented grand
rounds at Lions Gate Hospital on the diagnosis and treatment of whiplash
injury. His practice is entirely confined to the diagnosis and treatment of
musculoskeletal conditions for which he sees patients only on referral from
physicians and other health care practitioners such as podiatrists, mid wives,
and nurse practitioners.

[33]        
In his report dated January 18, 2014, Dr. Quirke
noted that he interviewed and examined the plaintiff on July 5, 2010, on
referral from Dr. E. Brisco, the plaintiff’s family doctor. In his
referral note to Dr. Quirke, Dr. Brisco told the doctor that the
plaintiff had, “persistent recurrent back pain, both lumbar and thoracic,
subject to muscle spasm despite Flexeril (a prescription muscle relaxant
medication usually prescribed for moderate type muscle spasm) and Dilaudid (a
narcotic analgesic medication usually prescribed for severe pain).”

[34]        
The plaintiff followed up with Dr. Quirke
on August 19, September 9, October 7, and November 9, 2010. At the latter
visit, he informed the doctor that whereas he did feel some overall improvement,
he continued to require episodic use of Morphine, Tylenol #3, and Ativan as his
sleep pattern remained significantly disturbed.

[35]        
The plaintiff followed up with the doctor in
2011 and 2012. On November 3, 2011, the plaintiff told the doctor that despite
extensive treatment his recovery had plateaued and he continued to experience
back pain particularly on rising from bed. On April 24, 2012, the plaintiff
informed the doctor that overall he had noticed some slight improvement, and
that his condition was quite variable.

[36]        
The plaintiff had several visits with the doctor
in 2013. On February 4, 2013, he informed him that he had experienced a
significant flare up of his symptoms and that he was continuing to see his
chiropractor, massage therapist, and personal trainer. On examination, the
doctor found the presence of significant lumbar muscle spasm and a significant
loss of lumbar extension.

[37]        
Dr. Quirke diagnosed the plaintiff in his
report dated January 18, 2014, as follows (page 6):

1). Whiplash Associated Disorder Grade Two
of the neck, upper and lower back.

2). Chronic mechanical neck, upper and lower
back pain presumed to be soft tissue in origin.

3). Chronic myofascial type pain,
particularly in the lumbar area and resulting in Chronic Pain Syndrome.

4). Possible
depression.

[38]        
Dr. Quirke opined on causation that “it is
more probable than not … that [the plaintiff’s] ongoing condition of neck and
back pain and psychological dysfunction can be attributed to the motor vehicle
accidents of 2009 and 2010” (page 7). In giving his prognosis at page 7, Dr. Quirke
said, “As it is now more than four years since [the plaintiff’s] motor vehicle
accident of 2009 and he continues to remain symptomatic, I believe that the
prognosis for a full recovery from his persistent symptoms is poor.” He
recommended that the plaintiff be referred to a multi‑disciplinary pain
clinic.

[39]        
In his report dated January 18, 2014, Dr. Quirke
opines at page 7 that “should [the plaintiff] increase his current work hours,
then I believe it is reasonable to presume that his symptoms may increase
further.” Consequently, Dr. Quirke is of the opinion that the plaintiff’s “future
earning potential as a lawyer has been reduced and he remains less marketable
and less attractive to future clients that might seek his services” (page 7).

[40]        
The doctor agreed in his testimony that there
are two positive signs with respect to the prospect of a full recovery, first that
the plaintiff experienced a complete recovery from his involvement in a 1995 motor
vehicle accident, at least relative to those who had had a prior injury and had
not recovered, and second being the end to this litigation. The doctor said on
cross-examination that, “anxiety increases symptoms of pain and pain
perception.” The defence also pointed to positive indicators to improvement,
such as the plaintiff’s active lifestyle and familiarity with exercise, sport,
and attending a gym.

C.             
Dr. Leith

[41]        
Dr. Jordan Leith is an Orthopaedic Surgeon
who testified for the defence. He has focused his practice to a subspecialty of
orthopaedics primarily dedicated to disorders of the upper extremity and the
hip and knee. He evaluated the plaintiff on January 13, 2014. Based on his
examination of the plaintiff, the doctor opined that the plaintiff is currently
suffering from mechanical lower back pain. He said that it is possible that the
plaintiff suffered minor soft tissue whiplash associated type symptoms to the
neck and back region following the 2009 accident. With respect to the 2010 accident
the records indicated that there were minor symptoms to the neck and lower
back. He went on to state:

The context of Mr. Debou’s clinical
presentation documented within the records is most consistent with mechanical
lower back pain and soft tissue pain.  I would expect these symptoms to recover
fully and not result in any significant physical disability.  There is no
indication for any surgical intervention or for the development of any
long-term degenerative sequelae as a result of these motor vehicle accidents. 
He should be able to function in the capacity of a lawyer.

His symptoms need to be treated on a trial
and error basis using conservative measures as there is no real sure fire
treatment that will predictably resolve his subjective symptoms.  It may be
worth his while to consider trigger point and Botox injections to see if the
spasm can be alleviated and this may be helpful to him.  Beyond this, remaining
active would be in his best interests and he may wish to pursue some pain
management counselling to help him with his coping skills.

At this point,
given the prolonged nature of his subjective symptoms in the absence of
objective structural damage over the time period since the accidents, his
prognosis is less optimistic.  Having said that, there is no sign of any major
injury that has occurred and I would normally expect a reasonable and complete
recovery from soft tissue whiplash type symptoms such as this.  There is no
medical requirement for any restrictions or any reason for there to be
permanent disability.

[42]        
The plaintiff commented that Dr. Leith’s
evidence is consistent with the evidence of Dr. Quirke and Dr. Armstrong
in that he assesses the plaintiff’s prognosis as poor, given the length of time
which has passed since the 2010 accident, and the continuation of his chronic
pain.

D.             
Dr. Elliott

[43]        
Dr. Tom Elliott was qualified to testify
for the defence as a specialist in internal medicine, endocrinology, and life
expectancy. Since 1995, the doctor has been the Assistant Medical Director at
IA Pacific Life Insurance Company of Canada, where his role has been to assist
in the underwriting of standard and sub-standard life insurance policies, and
to assess claims for short and long-term disability. In 1996, he received
certification in Mortality, Statistics and Actuarial methods from the American
Association of Insurance Medicine. As well, since 1995, he has maintained a
consultancy practice providing expert medical opinions in the context of civil
and criminal litigation.

[44]        
Dr. Elliott provided a report, dated
January 21, 2014, where he gave his opinion on the estimated life and work
expectancy of the plaintiff. The doctor did not examine the plaintiff, rather he
made his opinion based on medical documents provided to him (listed in Appendix
A of his report).

[45]        
 In Dr. Elliott’s report, he explained that
for any given individual the overall standardized mortality ratio (“SMR”) is
derived by adding the value of 1.0 (the SMR of the general population (“GP”),
by definition) to excess mortality ratios (“EMRs”) for each independent life
risk. He further explained that an EMR of 1.0 implies that the extra mortality
applicable to a specific risk is equal to the background mortality rate of the
GP (thus the overall mortality rate of an individual with an EMR of 1.0 is
double that of the GP). An EMR of 2.0 implies that the extra mortality
applicable to a specific risk is twice that of the GP (thus the overall
mortality rate is triple that of the GP).

[46]        
Dr. Elliott identified two independent life
risks for the plaintiff: his coronary artery disease, and his obesity.

[47]        
In 2002, the plaintiff underwent a quadruple
bypass for coronary artery disease. The plaintiff has remained clinically
stable since that time, and investigation has shown his heart function to be
strong with only a minimal area of poor supply of oxygen to the heart muscle.
He had not suffered a heart attack but, given his symptoms and based upon
medical advice, he decided on the surgery as a proactive step. He had a
positive outcome (but more recently has experienced some recurrences of chest
pain and carries a nitroglycerin oral spray). He quickly returned to his
practice after the bypass surgery, but for a period of time reduced his
workload and went on a weight reduction program, managing to lose some 50
pounds. Dr. Elliott noted that as of 2012, the plaintiff’s heart disease
was stable and asymptomatic. The doctor concluded that the plaintiff’s EMR with
respect to his coronary artery disease was 0.75.

[48]        
On the subject of obesity, the doctor explained
in his report that regardless of its degree, obesity significantly increases
mortality through cardiovascular and respiratory complications. In general, the
greater the obesity, the greater the risk to life. He said that the plaintiff’s
body mass index (“BMI”) adjusted EMR equals 0.59 and that to avoid double
counting of risk, considering that the plaintiff has been assessed for coronary
disease, the doctor opted to reduce his obesity specific EMR to 0.25 and that
this EMR is assumed to include any risk associated with pre-diabetes (for which
obesity is a major risk factor).

[49]        
On the subject of the plaintiff’s overall EMR,
the doctor concluded that the plaintiff’s overall EMR is the sum of the
individual independent EMRs; 0.75 (for coronary artery disease) + 0.25 (for
obesity) = 1.0. An EMR of 1.0 is equivalent to an SMR of 2.0 implying that the
plaintiff’s risk of dying in any one year is twice that of the average Canadian
man of the same age according to the doctor.

[50]        
The doctor included a table in his report
outlining age-specific mortality rates for members of the GP and the plaintiff
with accompanying life expectancies. He noted that from the table it can be
read that the plaintiff’s life expectancy is 11.9 years, with an expected
age at death of 79.6 years. Life expectancy for members of the GP at age 67.7
years is 16.8 years, and the reduction of the plaintiff’s life expectancy due
to medical risks is 4.9 years. He stated, “[the plaintiff] is estimated to live
a further 11.9 years to eventually die at the age of 79.6 years. This reduction
in life expectancy of 4.9 years compared to members of the general population
of the same age is attributable to the presence of coronary artery disease and
obesity. [The plaintiff] is expected to work as a lawyer until the age of
70.5.” 

[51]        
The plaintiff raised several criticisms of Dr. Elliott’s
conclusions. He says that Dr. Elliott’s life expectancy estimate of
the plaintiff living to age 79 does not interfere with the scenario of the
plaintiff working to age 75, and possibly beyond. In addition, he says that Dr. Elliott
has no expertise to opine on how long the plaintiff will work based on a single
study involving US males with college education.

[52]        
The plaintiff also submitted that Dr. Elliott’s report is
fundamentally flawed, in the following respects:

a.         he has
relied upon studies to reduce the plaintiff’s life expectancy but effectively
"makes up" the factor by which his life expectancy is reduced without
outlining any precise method. The plaintiff claims that while this may be
appropriate in insurance medicine to assess which arbitrary risk categories an
applicant falls into, it has little to do with a scientific assessment of
metadata;

b.         applying
the general statistical information of reduced life expectancy related to
obesity ignores the extent to which this information is relevant where an
individual is being treated, or is at a sufficient stage to require treatment
for risk factors related to obesity such as blood sugar, high blood pressure,
high cholesterol and sleep apnea; and

c.         he arbitrarily applied information
from the 1970s regarding life expectancy post triple bypass, when in fact the
patient cohort is composed of a majority of individuals who have had a series
of pre-existing health issues involving the damage to the heart muscle, heart
failure etc.

[53]        
The plaintiff says that Dr. Elliott is certainly qualified to
provide insurance company actuaries with input as to which arbitrary category
an insured person will fall into. However, determining questions of life expectancy
are much different owing to the fact that they are not based on simple
statistical information for the whole population, but rather based on arbitrary
adjustments based on studies which have little direct application to the
plaintiff.

[54]        
The plaintiff noted that the studies relied upon by Dr. Elliott are
from the early and mid-1970s, and the early 1990s. While he acknowledged his
need to modify the studies to take into account improving technology such as
angioplasty, surgery, and statin treatment, the plaintiff claims that his
adjustments are purely arbitrary and likely have more to do with his skill in
considering insurance risk, as opposed to a scientific assessment of the extent
to which actual disease operates to reduce one’s life expectancy.

[55]        
The plaintiff submits that the studies relied upon by Dr. Elliott have
no application to him given that he has been the beneficiary of statin
treatment for lipids, the beneficiary of treatment to control high blood
pressure, and he has an intact strong heart muscle.

[56]        
Dr. Elliott acknowledged in his evidence that for a very
significant percentage of individuals their first sign of heart disease is
death. The plaintiff says that he is in a very different situation in that his
heart disease has been identified early and treated with medication; additionally,
his vascular obstructions have been treated with bypass surgery, which allows
him to live a normal life.

V.             
Summary of the Lay Evidence

A.             
The Plaintiff

[57]        
The plaintiff grew up in West Vancouver. He did
not understand at his young age that his mother was bi-polar. She took her own
life when he was 20 years old and he felt quite a bit of guilt over her
decease. As well, he experienced the early death of his father, a close uncle,
and his brother. These circumstances left the plaintiff with a degree of deep
personal loss that has impacted his overall emotional and psychological health,
and, he claims, has added to the complication of him achieving a better
recovery outcome from his accident-related injuries.

[58]        
In his youth, the plaintiff led a very active
life, participating in a variety of sports. He married his wife, Lynn, in 1966.
They have four daughters, now ranging in age from 33 to 46 years. They have six
grandchildren. In the growing up years of his children, the plaintiff was
actively involved in their music, dance, and sporting activities. He has also
actively participated in his grandchildren’s activities.

[59]        
In the 2009 accident, the plaintiff did not have
prior warning of the collision and was looking out the window when the vehicle
was rear-ended. He was wearing a seat belt and felt a jolt across his hips. He
immediately felt pain in his right side, lower lumbar. He gingerly got out of
the vehicle and took some pain medication that he happened to have in the
vehicle. In the days following the accident he had court appearances scheduled,
so he attended work while taking pain medication.

[60]        
The plaintiff had a complex family law trial
scheduled to commence in March 2010. He was driving to Ms. Kirkham’s
residence to work with her in preparation for the trial when the 2010 accident
happened. The ambulance and fire responders had a difficult time removing him
from his vehicle and had to break open his driver’s side door. Once removed, he
was placed on a board and taken to emergency at Lions Gate Hospital. He was
given pain killer medication. He hurt from his hips to his neck. He had x-rays
and was sent home. He stayed home for a couple of days and then returned to
work to prepare for his upcoming trial.

[61]        
The plaintiff visited his family doctor and was
prescribed muscle relaxants and pain killer medication that he has continued to
use to this day. On the opening day of the March 2010 trial he picked up Ms. Kirkham.
She helped him place banker boxes filled with trial materials into his vehicle.
When he tried to lift them out of his vehicle, he needed the assistance of Ms. Kirkham
and together they wheeled the boxes to the courtroom on luggage carts.

[62]        
On the opening day of trial the judge scolded
the plaintiff for being late to the courtroom. He did not mention anything
about his condition, or that he was experiencing pain. He was taking his
medication and trying not to let the judge or the opposing counsel know of his
condition. However, co-counsel offered him a stool because he noticed that the
plaintiff was having a problem. The ability to semi-stand helped, but the
plaintiff had to still take his pain medication.

[63]        
The plaintiff’s sleep has been seriously
disturbed since the 2010 accident. Because he had to frequently get in and out
of the bed he shared with his wife, he decided that he should sleep in a spare
bedroom. His sleep issues have continued, and he is often awakened because of
spasms.

[64]        
After the 2010 accident, he had to give up
hiking and he cannot walk very fast or far, sometimes using walking sticks or a
cane. He chooses not to use a cane in the presence of clients or other counsel
for fear of showing signs of weakness.

[65]        
The plaintiff has regularly attended massage and
physiotherapy treatments as well as a chiropractor. Because of his discomfort,
he was not able to attend the 2010 Olympic events, so he gave his tickets to
his children. For sporting events, he uses parking close to the arena, and has had
to move his season ticket seats to be more convenient to the arena exits and
parking.

[66]        
In 2011, the plaintiff retained the services of Mr. John
Vuong, a personal trainer. Mr. Vuong has helped the plaintiff improve his
mobility, and he has experienced some other benefits. However, he is still
experiencing pain that is as bad from time to time as it was in 2010. He is
continuing with Mr. Vuong, chiropractor treatments, and massage therapy.
He regards this regime as maintenance and feels he has to do it to be able to
function.

[67]        
The plaintiff had another complex family law trial
in 2011. It was a difficult case made even more difficult by the fact that the
plaintiff was experiencing pain. He said that by the time he was able to get
the banker boxes out of his vehicle with the assistance of his client, he was
bathed in sweat from pain, and felt very embarrassed. He was taking pain
medication during the trial. He said it was obvious to the judge that he was in
discomfort and she would often inquire of him if he felt okay. He told her that
he wished to carry on with the trial. He realized that his client knew he was
hurting, but he felt she was satisfied with his performance in court.

[68]        
He recently learned that the former clients he
represented at the two complex family law trials he conducted in 2010 and 2011
were concerned that he would have to adjourn their trials and appoint a new
counsel, information that has shaken his confidence in his own capacity to
function as counsel.

[69]        
The plaintiff has attended a pain counselor who
has helped him to cope with his condition by teaching him exercises, and
addressing some of his psychological issues. He has the kind of personality
where he prides himself on being able to help others and thinking that he does
not need help. He thought he could handle the situation, but has been made to
realize that he cannot.

[70]        
Since the accidents, the plaintiff no longer
spends as much time driving his vehicle, and does not go into his office as
much. He more recently drove to the interior but found the pain to be as bad as
in past years, he suffered a complete spasm that buckled his knees and dropped
him to the floor. He had seen a doctor a week before this incident for an independent
medical exam, and at the time he was feeling pretty good.

[71]        
In early 2014, the plaintiff was retained to act
for an affluent client in a high conflict case. He flew to Victoria to work on
the case, but after a short stay he resigned from the case as he could not
handle the amount of hours or travel.

[72]        
The plaintiff had planned on working “forever”.
However, he is at a crossroads regarding what to do with his future plans as a
practitioner. He has difficulty with concentration, and Ms. Kirkham is now
doing much more of the drafting of pleadings and correspondence, which she is
good at. Socially, he is becoming more of an observer as he cannot stand or sit
for long periods of time and must leave social events early. Pain medication
means that he cannot socially imbibe alcoholic drinks, and he cannot any longer
enjoy dancing with his wife stating, “she might get a dance out of me now”.
Travel is becoming more of a challenge because of his condition, and he cannot
take an active part in touring. This means that plans he had to travel with his
wife have been made problematic and travel has lost its lustre for him.

[73]        
The plaintiff does not know what he can do to
change his circumstances. He does not think he would be good at practicing as a
solicitor, and while it is easy to tell himself to get back to work, he is
finding it hard to work. His pain is always with him, some days worse than
others. He still has difficulty with his sleep and at times his condition is as
bad as it has ever been.

[74]        
In cross-examination, the plaintiff said that
while many of the challenges he described with handling court cases are a
common condition of life as a counsel, it was now different for him. For
example, the difficulty of carrying heavy banker boxes full of materials was
extreme for him. He also acknowledged counsel’s suggestion to him that as a
person ages they become less comfortable with travel by car or plane, this was
happening to him faster and the situation was far worse than he expected. He
once relished the time he spent in his vehicle travelling to and from his
office and to attend in court.

[75]        
When counsel suggested to the plaintiff that his
practice had not been as profitable as one might expect because he did a lot of
pro bono work and unintended legal aid, he replied that he was a better lawyer
than a businessman. He said that since the accidents he had intended a purposeful
shift away from acting for pro bono clients but he still acts for clients with
insufficient funds to pay his legal fees. He said that Ms. Kirkham has
been trying to steer him away from doing so much pro bono work.

[76]        
In discussing the fact that he had been told by
his family doctor that he had borderline diabetes, the plaintiff conceded that
in 2009, his weight was 275 pounds, and that at one point it went to over 290
pounds. He now weighs 260 pounds. He also agreed with counsel that in the last
year or so he has experienced shortness of breath and chest pain, and that as a
result of this he carries nitro and went for an angiogram in February 2014. He
said that his condition is still being investigated so he could not agree that
he was headed for more heart surgery.

[77]        
The plaintiff agreed that following the 2009
accident he had a full recovery and said that is why he expected a full
recovery after the 2010 accident. He said that he is generally an upbeat and
optimistic person. He disagreed with counsel that his optimism has remained up
until just the last few months when he started preparing for his own
litigation. He said it was true that he looked favourably on his skills as a
litigator until last couple of months, which is when, in preparation for trial,
he learned of the views of his two former clients. After hearing this
information it shocked and devastated him to know that he was deluding himself
into thinking that he was handling his practice well.

[78]        
The plaintiff agreed that his first visit to see
his family doctor, Dr. Brisco, after the 2009 accident was at the end of
September 2009. He said he was not troubled too much about the accident at that
stage because he thought he would recover quickly and did not think he would
experience spasms until this day. He agreed that when he visited the doctor at
the end of October 2009 he did not mention the accident because he was
satisfied that he would get better. He did mention headaches to his family doctor
when he visited him in February 2010 and the doctor referred him to Dr. Quirke
at his request. He agreed that Dr. Brisco did not refer him to any other
doctors.

[79]        
The plaintiff testified that he did not like to
dwell on his condition and that he made regular visits to the doctor to renew
his prescriptions and was always optimistic when presenting himself to his
family and clients. He has now found out that he was not masking his condition
as well as he had thought.

[80]        
When counsel suggested to the plaintiff that he
was doing well until the month or so before trial he said that he was offended
by this suggestion insisting that he would not taint his reputation by contriving
his condition.

[81]        
The plaintiff agreed that it was not unusual for
a paralegal to draft pleadings, but said he feared he was no longer as
interested in the practice of law.

[82]        
In re-examination, the plaintiff said that
whereas he used to have about 100 active files, he now has about half a dozen
to one dozen. He said he had very few trials in 2013, and that this was possibly
due to escape, disinterest, or disinclination. He is not intentionally
discouraging new clients, but is doing so subconsciously. In the past, he has
soldiered on and would work sick or injured.

[83]        
Regarding his more recent experience with
shortness of breath, he said that the medication he is taking seems to be
helping, and that his chest pain is still being investigated.

B.             
Mr. John Vuong

[84]        
Mr. Vuong, the plaintiff’s personal
trainer, has been in the fitness industry for about 15 years. He first met the
plaintiff in 2011 when the plaintiff consulted him because of his pain. He had
difficulty reaching for a towel, tying his shoelaces, and getting up on the
table. Mr. Vuong observed that every move the plaintiff made was in pain.
The treatment plan for the plaintiff was to control his pain and to help him
move. He explained that when a person moves it can free up problems and
recovery takes place. He had to find the right spot, pressure, and move for the
plaintiff. His goal was to stretch out the pain-free time to help the plaintiff
get through the day. This takes three to six months for most persons, but in
the plaintiff’s case it took over a year to extend his pain-free time.

[85]        
Mr. Vuong saw the plaintiff for
manipulation therapy twice a week in 2011 at the rate of $75-95 per hour
depending on the package the plaintiff chose. In 2012, Mr. Vuong learned
every single technique he could think of to help the plaintiff. He said that
pain was always there, but it was less frequent and the plaintiff was more
mobile. He said that in 2012 when the plaintiff attended the gym consistently,
it helped to maintain his range of motion, but when he did not the pain
returned to the same level.

[86]        
He saw the plaintiff once a week for one hour in
2013. The plaintiff had learned quite a few techniques that he could do by
himself. If the plaintiff had a flare up he would stay another hour. He said
that if the plaintiff sat for a long period and did not stretch or made a
sudden turn he would experience pain. In 2014, the pain level has stayed the
same. It is a matter of how frequent and how much time he has for himself. Mr. Vuong
said it was crucial for the plaintiff to find time for himself and that
otherwise the pain is still with him. He said that the pain is always there for
the plaintiff and he needs more time to take care of it.

[87]        
In cross-examination, Mr. Vuong agreed that
while he cannot measure pain, he can however observe his clients. He has
learned how to listen to the body, observe movements that a person is unable to
do, and see how much effort is exerted while a person is on the treadmill. He
said that everyone has a different pain threshold. For the plaintiff to
maintain his condition, he has to get his pain under control, this means that
he needs to find the time to do more exercises. He said that he has been
teaching the plaintiff to do his own maintenance. He said it is helpful for the
plaintiff to see him, but the catch is financial. He agreed that it is a goal
to teach a client how to manage their condition so as to be able to carry out
their own maintenance.

C.             
Mr. Tom Dolo

[88]        
Mr. Tom Dolo is a former Vancouver police constable.
He met the plaintiff when the plaintiff was a Crown prosecutor. In 1993, Mr. Dolo
started his own investigation firm which has now grown to 120 investigators
doing work mainly for ICBC and WorkSafe BC.

[89]        
He said that he was very impressed with the plaintiff’s
ability as a prosecutor, and that during his police career the plaintiff was
well respected by the police force and known as the go-to defence counsel.
Later he referred clients to the plaintiff. As well, he has been involved in
cases with the plaintiff in the areas of family and criminal law.

[90]        
Mr. Dolo said that after the 2010 accident
he had a close working relationship with the plaintiff. He was familiar with
the fact that the plaintiff handled a lot of pro bono cases as well as affluent
clients. He said that when he referred a client to the plaintiff he knew that
the person would get the best representation possible.

[91]        
He recalled that in 2013 there were noticeable
signs that the plaintiff was in pain and that he had put on weight. He said that
on the occasions they travelled together, the plaintiff was in extreme pain. He
recalled that they were working together in early 2014 on a case for an
affluent client. They had to travel to Victoria where they stayed together in a
hotel suite. He said the plaintiff was in constant pain to the extent that at
one point he thought the plaintiff was having a heart attack. He said that the
plaintiff had to resign from the case and a different lawyer had to be
retained. He said that there was a lot at stake financially in the case, but
the plaintiff felt that he was not up for the task and therefore withdrew his
services. He said he had never seen the plaintiff like this before.

[92]        
In early 2013, on two occasions, the plaintiff
advised Mr. Dolo that he wanted to take his referrals for paying clients,
but because of the pain he was experiencing and his workload he felt he could
not do justice to the files. The pain was such that he could not concentrate. Mr. Dolo
has stopped referring cases to the plaintiff.

D.             
Ms. Lynda Kirkham

[93]        
Ms. Kirkham is a paralegal with 27 years’
experience. She has been the plaintiff’s paralegal since 1986. She said he
started his solo practice in 1995 because he found that he did not have the
flexibility in a large firm to conduct his type of practice that included a lot
of pro bono work. After the plaintiff’s heart surgery in 2002 he did attempt to
slow down his practice, but he had no intentions of retiring, in fact he
intended to “die with his boots on”. 

[94]        
She said that the plaintiff was a very
experienced matrimonial lawyer, and received lots of calls for his expertise.
However, she said he was not a businessman. She said that prior to the
accidents the plaintiff’s mobility was normal and he worked long hours, stating
that it was not uncommon for them to work until the wee hours of the morning.

[95]        
She testified that following the 2009 accident
the plaintiff was moving “gingerly”. He did his exercise and improved. She said
that after the 2010 accident the plaintiff was in pain a lot of the time. She
recalled that the plaintiff was not able to lift banker boxes of materials. At
the long trial in March 2010, the opposing lawyer offered his stool to the
plaintiff because he recognized that the plaintiff was having difficulty
standing. As well, unlike his former self, the plaintiff had become impatient,
cranky, and short tempered. She said that he was having a “hard time”. She
started doing more work by meeting with the clients, drafting court materials, and
reviewing pleadings. She also mentioned the long trial in 2011, and said that
the plaintiff was short tempered, frustrated, and in pain. She said he
persevered, but the trial took a toll on him. He would get red faced, appearing
hot and uncomfortable. He took his pain medication during the trial.

[96]        
She said that in 2012, he turned away clients,
which was not like him. In 2013, the plaintiff had about ten files, two of
which were large matrimonial files, and a couple that were complex criminal
files.

[97]        
Ms. Kirkham said that she thinks the
plaintiff feels defeated before he has even started to work on a file. He looks
at the future and queries how much he is going to be able to manage. He has
become defensive about what he can do, and in his quiet moments he wonders if
he will be able to carry on, which scares and depresses him.

[98]        
In cross-examination, she said that after the
plaintiff’s heart surgery it took him about six weeks to get fully back into
his practice. She said that she has always done such tasks as drafting
pleadings, but now she does these tasks to a greater extent, getting into much
more depth and detail.

[99]        
She agreed that the plaintiff had looked red in
the face even before the accidents. She also agreed that she encouraged the
plaintiff to turn away pro bono work and that she would have preferred he spent
more of his time and effort on paying clients. However, she noted that it is
the plaintiff’s practice and his choice in the end. She said that one has to
understand his personality and that he would work for free – and that he is
going to do what he is going to do – although she agreed that better paying files
would be a smart business decision.

E.             
Ms. Zelda Friesen

[100]     Ms. Zelda Friesen is a former client of the plaintiff. She saw
the plaintiff a month after his 2010 accident. She thought he looked stressed
and noticed he was having problems. In preparation for her trial in July 2011, she
had long and intense meetings with the plaintiff where she noticed that the
plaintiff was uncomfortable, and that he was grunting and groaning. She said
that over 2010 his mobility was changing. In 2011, the plaintiff was having some
difficulty lifting boxes with trial materials. She observed that things were
starting to centre around his ability, stamina, and concentration level, which
made their meetings last longer. He would furrow his brows, rub his back, and
often get up, which made her become concerned. At the trial, the plaintiff
asked her to meet him in the parking lot and help him place the banker boxes on
a dolly. She realized that his condition was not improving.

[101]     She said that at the first day of trial the plaintiff broke out in a
sweat and talked about his pain level. She thought, “oh boy, it is only day
one”. She said that everyone in the courtroom noticed the plaintiff’s
condition. She watched him gripping the podium and sipping a lot of water. He
was also being asked if he needed a break. She said the trial was bad enough
for her without worrying about the health of her lawyer and his endurance
level. She noticed him taking pills and she commented that it must have been
pretty hard for him.

[102]     The trial was adjourned over until October and she said that when
the trial resumed the plaintiff’s condition was even worse than in July. He had
mobility problems and his pain had increased. By the second or third day, it
was really bad, to the extent that on one day the judge recessed early for
lunch. She said that after the judgment was delivered there were still some
outstanding matters to be dealt with. She was becoming concerned, believing
that his ability to sew things up was being affected by his pain. Things were
dragging out and his response to her was not the same as the person she had
first met. She felt he was experiencing burnout from pain.

[103]     Ms. Friesen was asked if she had another action like the one
she experienced whether she would retain the plaintiff, and she said she would
not – that he was not getting better physically or emotionally and that it was
hard to watch him suffer. She said that she would not refer him to a friend, commenting
that a friend who attended court with her during her trial, who knew nothing
about the plaintiff’s circumstances, said to her, in reference to the
plaintiff, “that man is not well”.

[104]     In cross-examination, Ms. Friesen said she first learned of the
2010 accident in October 2011 when the plaintiff showed her the accident scene,
although she said she may have heard it mentioned at an earlier date but it
went right over her head. She said that he was trying to keep his personal life
away from her, but his body language gave away his condition. The first time
she noticed him taking pills was at the trial in July 2011.

[105]     Ms. Friesen said she was absolutely impressed with the
plaintiff’s knowledge and expertise and at the trial he achieved a good result
for her. She agreed that it was a long, difficult, grueling case that was a
“chair gripper” every day. She said this is why she retained the plaintiff. She
became worried that it would fall through because of the plaintiff’s condition
and noted that even opposing counsel asked the plaintiff if he would like to
take a break.

[106]     Ms. Friesen said that she would no longer seek the plaintiff’s
advice. She said that no matter how much she respects his acumen, she has
doubts about him. He was taking pain medication and was becoming emotionally
difficult; because of this she would not retain his services.

F.             
Ms. Gina Rossi

[107]     Ms. Rossi is another former client of the plaintiff. She
retained the plaintiff in 2007 to handle her difficult impending divorce. She
was confident after meeting the plaintiff that he understood the aspects of her
case. She was extremely stressed at the time and was relieved to have a good
lawyer who could represent her interests. The trial was scheduled for March
2010. Before February 2010, she had many meetings with the plaintiff and she
found him very focused and on the ball, with a game plan for the litigation. He
calmed her down and made her feel better about her circumstances, which was
very important to her.

[108]     She attended a meeting with the plaintiff and Ms. Kirkham
following the 2010 accident. She learned about the accident from Ms. Kirkham.
She noticed a change in the plaintiff. He was sweating a lot and highly
irritated. She could tell that he was in pain. He was not as confident as the
person she had retained. At times, he snapped at her. Also, he was not as
jovial, focused or patient with her compared to before the accident. This
raised her anxiety.

[109]     She said that prior to the accident the plaintiff did not have any
difficulty lifting objects or moving around, but after the accident, he was
slower and would sweat a lot more when moving around, standing, or moving
objects. He looked uncomfortable. She saw him taking pain medication, which she
did not see him take prior to the accident.

[110]     The plaintiff was late for the first day of the trial and the judge
was not impressed, which gave her cause for concern. He had upset the judge,
was taking pain medication, and was unfocused, all of which was of concern to
her.

[111]     During the two weeks of trial, the plaintiff was in a lot of
discomfort and throughout he was sweating and showing that he was in pain. He
was not organized and did not have the stamina that he had prior to the
accident. Before the accident, he was always on time for meetings, was well
prepared, and was ready for their discussions – he was calm, confident, and
focused. On the other hand, after the accident he was not as organized or as
well put together. She described him as looking “disheveled”.

[112]     Ultimately Ms. Rossi got a judgment in her favour. Some issues
remained outstanding, but when she contacted the plaintiff about a year later
to resolve these matters he told her to retain another lawyer and hung up on
her. She felt exhausted and frustrated. In the past he had been stern with her
on occasion, but polite and had never hung up on her. She said she would
probably not retain the plaintiff again if she was involved in a similar case. On
being asked if she would refer him to her friends, she replied, “a simpler
case, yes”.

[113]     In cross-examination, she said that she believed the plaintiff no longer
had the stamina to put in the hours or the energy to conduct a complex case.
She would refer a friend to him for legal advice, but she did not believe that
the plaintiff had the stamina to follow through with the challenges of handling
a complex case. She agreed that she had not seen the plaintiff for about three and
a half years and her views are based on what she had experienced at the time of
her litigation.

[114]     She said that she had seen the plaintiff sweating prior to the
accident, but not as much as he did following the accident. She saw him taking
medication during the trial and witnessed this more than once.“

G.            
The plaintiff’s wife

[115]     The plaintiff’s wife testified that the plaintiff always loved
practicing law, and that he worked for clients, “above and beyond”. She said
that the plaintiff’s temperament prior to the accidents was basically always
fair, patient, and tolerant. However, after the accidents he would get angry if
clients telephoned him, and at times impatient and belligerent, all traits that
she had not seen in him prior to the accidents.

[116]     After the plaintiff’s heart surgery she and the plaintiff went for
lots of walks to build up his energy. The plaintiff lost 50 pounds and had a better
blood pressure reading than she did. They continued with their social life,
going out for meals, dancing, and getting together with their neighbours.

[117]     She said that right after the 2009 accident the plaintiff got out of
the car and said, “oh no”. He had twisted his back. She said that he left that night
to attend a scheduled trial.

[118]     Before the 2010 accident the plaintiff seemed to get better. She
recalled that the plaintiff stayed in the hospital overnight following the 2010
accident, and she first saw him when he returned home. She noticed that the
plaintiff was in pain and had a lack of mobility and trouble walking. She heard
him gasp when he got up and his sleep was disturbed. She also noticed
personality changes, noting that he became very self-centered, had a short fuse,
and that his mood worsened as the drugs wore off. Activity increased his pain
and his temperament worsened.

[119]     She has not seen much improvement since the accidents, noting that
some days are better than others and the plaintiff will sometimes use different
means of coping with his pain. He does take therapy treatments and medication,
and he sleeps a lot. He also self-medicates with alcohol and she thinks it
might be a better option for him than drugs during the day.

[120]     Prior to the accidents they slept in the same bed, but a few years ago
the plaintiff moved to another bedroom because he was disturbing her sleep. At
times after taking his pain medication he would thrash around in his sleep, sometimes
violently to the point that he would strike her. Even though he has moved to
another bedroom, she can still hear him moaning and groaning at night and
moving around. She said that after the accidents the plaintiff is not as agile
or as considerate of her and that their intimate relationship is not as
satisfying as it used to be.

[121]     She said that the plaintiff leaves home for work in “semi-good”
shape, but it is when he returns after working that she finds him short
tempered, loud, and a little bit belligerent.

[122]     Prior to the accident, she and the plaintiff socialized, went out to
dance, and went for walks together. Now the plaintiff cannot walk with her for
too far a distance or move too fast. In fact, she does not enjoy walking with
him and she prefers that he use a cane. They still socialize but whereas the
plaintiff would enjoy sitting with friends and telling stories, now he moans,
gasps, and tires easily causing them to often go out in separate vehicles so
that he can return home earlier than her.

[123]     In their time together, she said he was devoted to his career and
did not do a lot around the house. She said that even before the accidents she
did the gardening and it was never a problem for her to do the household chores.
The plaintiff sometimes helped her with the lighter chores. Now the plaintiff cannot
do household chores meaning that she does everything.

[124]     She said that the plaintiff was a “lovely” father and was very
involved in raising their family, supporting the children with their activities,
and did so with their grandchildren as well. He was more active with the
grandchildren before the accidents. The plaintiff now gives their grandchildren
goodbye hugs while he is seated and she will not let him pick up the small
children (grandchildren range in age from 3 to 16 years).

[125]     They travelled prior to the accidents to places such as Disneyland,
Hawaii, and Mexico. However, about two years after the 2010 accident when they
went to Palm Springs the plaintiff sat in a lounge while she hiked and went up
in the aerial tram. When they went to Ottawa, the plaintiff used the handicap
entrance to take a tour of the Supreme Court of Canada. He did not join her
when she visited Parliament, preferring to wait in the hotel. In Toronto, he
waited on the ground floor while she toured the Casa Loma castle.

[126]     In cross-examination, she told defence counsel that the plaintiff
was at a trial that very day. She noted that he was very athletic as a young
man, was an avid swimmer, and that being physically active is not a new concept
for him.

[127]     As far as the plaintiff’s work is concerned, she said that he
planned to cut back and do only quality cases. As far as she knew, he planned
to work for as long as he could.

[128]     She said that the plaintiff’s issues are not about his aging, noting
that she is the same age and leads a very physical life looking after their
grandchildren during the week. She said that the plaintiff uses his home office
a lot more in the last couple of years, and that he mostly works at night at
home and occasionally on the weekends.

[129]     As for the plaintiff’s future, first and foremost she would like to
see him be pain free. She wants him to manage his pain so that he can have some
quality time with her and their family, and so that they can travel and do what
semi-retired people do.

H.             
Mr. Robin Grant Macdonald

[130]     Mr. Macdonald is a former member of the Vancouver Police department.
He met the plaintiff in the early 1970s. He observed the plaintiff in court
noting that he could step in and take over a file and do a very good job. He
also saw the plaintiff at social events. In 1995, he started a private
investigation business and became involved with the plaintiff. He has had lots
of contact with him “irregularly”. He explained that they will be busy working
on a file together, and then perhaps go for weeks or months without seeing each
other.

[131]     Because of his high regard for the plaintiff’s abilities he has
referred clients to him. He said that from 1995 until 2009 the plaintiff was
the same quick study and that, “he had the mind to look at what a person said
from outside the box rather than linear progression”.

[132]     Mr. Macdonald worked with the plaintiff on criminal and
matrimonial cases. He interviewed witnesses, read the file materials, and discussed
strategy with the plaintiff. He said that prior to the accidents, the
plaintiff’s mobility was fine and they played golf together a few times noting
that the plaintiff was agile, could walk, and they enjoyed the experience. He
saw the plaintiff after his heart surgery and found him more energized and
anxious to get back to work.

[133]     He said that after the 2009 accident, the plaintiff was
uncomfortable and he would squirm in his chair. He said the plaintiff tried to
hide the symptoms. After the 2010 accident the plaintiff was in pain, not
constant, but if he reached for a pen he would grimace and his condition has
worsened to this day. In Mr. Macdonald’s view, the plaintiff is in a great
deal of pain and having difficulty functioning.

[134]     Mr. Macdonald mentioned Ms. Friesen’s case and said that
over the course of the case the plaintiff’s mobility was not good. He bought
the plaintiff a luggage dolly to carry objects rather than subject his back to
lifting. He said that the plaintiff sweated profusely moving from his vehicle
to the courtroom. The plaintiff was not in good shape at all.

[135]     Following the 2010 accident, the plaintiff’s mental agility was not
the same. He would change thoughts in mid-stream and if he had a spasm he would
lose his train of thought. His memory was diminished, noting that the plaintiff
would forget to get back to him with directions. After the 2009 accident the
plaintiff was uncomfortable, but fine mentally. At Ms. Friesen’s trial,
the plaintiff’s ability to stay on track was limited and he was easily moved
off track by a spasm. The plaintiff took pain medication at the trial and his
level of detail was not what Mr. Macdonald expected of him. His pain was
overriding everything else. He was sweating and had trouble getting out of his
chair. His ability to deal with witnesses has diminished after the 2010
accident. He is not as empathetic with clients, is less patient, and is short
tempered.

[136]     Mr. Macdonald described the plaintiff as a “very good lawyer
and a very poor businessman”. He said that the plaintiff would stick with a
client to the end even though he knew he would not be paid the full amount of
his tariff. If the plaintiff did not get paid, Mr. Macdonald did not get
paid, which was fine with him as he had a decent pension.

[137]     He has attended hockey games with the plaintiff and has observed the
difficulty he has with getting in and out of his seat. He said that the
plaintiff will go well out of his way to avoid having to take stairs at the
stadium. Since the accidents, they have not played a round of golf. He has
noticed lately that the plaintiff is not happy practicing law, observing that
it is not the fun for him that it used to be.

I.                
Mr. Peter O’Reilly

[138]     Mr. O’Reilly has known the plaintiff for 22 years. He owns a
company that develops real estate in the interior and locally he does
renovations. His relationship with the plaintiff started as a professional one
and has moved to them becoming good friends. He said that prior to the 2009
accident the plaintiff had stamina and was healthy, happy, physically active,
and optimistic. He said that the plaintiff was a successful man who was his
role model. He was strong mentally and physically.

[139]     Mr. O’Reilly did not see the plaintiff for around two years
after the summer of 2009. The next time they met was in Shuswap in June 2011.
The plaintiff travelled there to represent Mr. O’Reilly’s nephew in a
criminal matter. He said that the plaintiff was definitely uncomfortable and
was not himself. He won the case for his nephew but he could see that the
plaintiff was in a lot of pain. The morning after the trial, Mr. O’Reilly
took the plaintiff and his nephew for a boat ride. He said that the water was
very calm but he noticed the plaintiff was in “pretty good pain getting in the
boat”. He said he was a strong man trying to keep his pain to himself. He said
that when the boat hit some small bumps the plaintiff was in extreme pain. It
took Mr. O’Reilly a long time to return the boat because he went slowly
given the plaintiff’s “enormous amount of pain”. The following day, Mr. O’Reilly’s
nephew drove the plaintiff back to Vancouver in the plaintiff’s vehicle because
he was not able to drive himself home.

[140]     Mr. O’Reilly spent overnights with the plaintiff from time to
time. He said that post 2011 the plaintiff had a difficult time keeping his
pain a secret, that the plaintiff would at times scream in the middle of the
night, and he was scared for the plaintiff.

[141]     Mr. O’Reilly talked about his financial issues and the fact
that the plaintiff had supported him during his financial difficulties. He noted
that the plaintiff acted as though Mr. O’Reilly was paying him, and the
plaintiff has not pushed him for payment. He said that he was in the midst of
getting refinancing and based on his assessment of the work the plaintiff has
done for him he owes the plaintiff $75,000.He fully intends to pay it to him
soon.

VI.           
Damages

[142]     I found the plaintiff, and those lay witnesses who testified on his
behalf, to be honest, straightforward, and frank about the plaintiff’s physical
and emotional condition after the accidents. I particularly found the plaintiff
to be an accurate and fair historian about his symptoms following the accidents,
his treatment regime, the progression of his pain and suffering, and the impact
of the accidents on his daily work and personal life.

[143]     There is no suggestion from any lay or expert witness that the
plaintiff is a malingerer or attempting to take unfair advantage of his
accident-related injuries to secure a high award. On the contrary, the
plaintiff is a senior experienced trial lawyer with, according to the evidence,
a stellar reputation as a competent courtroom counsel who, despite his pain and
discomfort following the accidents, continued to practice his profession to the
best of his ability. What has discouraged him is the fact that he cannot
sustain the pace he once did and he has recently come to realize that at least
two former clients no longer feel confident enough in his physical or
intellectual capacity to recommend him to others. This has come as a blow to
his level of confidence in his own ability to carry on in the practice of law
as a litigator, at least to the standard that he set for himself before he
sustained the injuries in the accidents. This has impacted him to the extent
that he has unconsciously or subconsciously looked for ways to avoid taking on
new clients, as he no longer wishes to continue in the profession if he cannot
serve his clients to his usual standard. His practice has attracted family law
clients in high conflict situations and with factually complicated cases that
require a high degree of energy, focus, and patience, qualities he feels he no
longer possesses due to his constant post‑accidents pain and discomfort.

A.             
Non-pecuniary Damages

[144]     The plaintiff cites the factors listed in Stapley v. Hejslet,
2006 BCCA 34 [Stapley], that inform an award for non-pecuniary damages,
including age, nature of the injury, severity and duration of pain, disability,
emotional suffering, and loss or impairment of life.

[145]     In the instant case, the plaintiff submits that his age presents as
a factor because the impairment of his mobility is significantly more serious
than for a younger person. Prior to the accidents, the plaintiff’s pleasures in
life focused primarily on his home life, career, and recreational and social
activities. These, he claims, have been stripped away and while at the time of
the 2009 accident he was a vibrant 62-year-old, post accidents he is a devastated
man in his late 60s.

[146]     In terms of his injuries, the plaintiff refers to the evidence of Dr. Armstrong
and his diagnosis of chronic axial myofascial disorder; chronic SPR instability
and misalignment; adjustment disorder with mixed anxiety and depressed mood; and
chronic pain with its complications of emotional, social and cognitive
distress, diminished physical capacity, and disturbed sleep with subsequent
loss of energy and daytime fatigue.

[147]     The plaintiff says that it is the effects of the injuries on his
life that are paramount in assessing the appropriate award.

[148]     The plaintiff has testified about his disturbed sleep; inability to
sit for long periods of time; constant pain in his back, shoulders, and neck;
and his inability to walk for any distance, walk up or down stairs, and drive
long distances without pain. The constant pain has affected his mood, forced
him to sleep in a spare bedroom, and, he submits, will likely lead to early
retirement. He has reluctantly applied for a disabled sign to display in his
vehicle so that he can secure convenient parking close to his destination. The
impact of his pain has shown itself in his courtroom appearances, he has had to
resort to using a cane or walking sticks, and he is taking pain medication that
is contraindicated for his heart issues and increases his blood pressure.

[149]     The plaintiff says that his condition post accidents has turned an
independent and strong individual into someone who is not as confident in his
capabilities, uncertain about his future in his profession, and less engaging
in his personal and professional relationships. He goes so far as to submit
that he has lost his career, and now takes little pleasure from practicing law,
or engaging in  social activities. His life has been permanently impaired. It
is disturbing for him to learn that he will continue to suffer from “cognitive
distress”. His identity and lifestyle has been altered, and he has suffered a
serious impairment of his family, social and professional relationships, as
well as his physical and mental abilities.

[150]     The
defence submits that no expert has opined that the plaintiff has suffered
anything more serious than soft tissue injuries. The defence notes the results
from the neurological examinations are essentially normal, there are no
neurological signs such as numbness or tingling in the buttock or down the leg,
no problems with bladder or bowel function, and no indication of involvement,
for example, of a bulging or herniated disc. Surgery is not indicated. The defence
submits the plaintiff should experience continued improvement in his experience
of pain with a self-directed exercise routine.

[151]     In support
of their submission, the defence notes the following evidence: Dr. Leith
encourages the plaintiff to remain active. Dr. Armstrong and Mr. Vuong
both encourage self-directed physical activity (as opposed to any more passive
therapy). Dr. Armstrong states on page 13 of his report, “In my opinion, [the
plaintiff] possibly had yet to reach maximum medical improvement as, again in
my opinion, he had not had treatment for his sacroiliac joint dysfunction.”

[152]     The
defence also notes that Dr. Armstrong stated at page 13 of his report that
the plaintiff does not appear to be experiencing chronic pain syndrome, which
occurs when physical incapacity and emotional distress become cognitively
overwhelming and individuals begin to think and behave in maladaptive ways. The
defence notes Dr. Armstrong’s report at page 13, where he states he did
not detect neuroplastic changes, chronic widespread pain, or fibromyalgia syndrome,
and page 12, where he states he found no active myofascial trigger points.

[153]    
Finally, the defence points to page 7 of Dr. Leith’s report, which
states as follows:

At this point, given the
prolonged nature of his subjective symptoms in the absence of objective
structural damage over the time period since the accidents, his prognosis is
less optimistic.  Having said that, there is no sign of any major injury that
has occurred and I would normally expect a reasonable and complete recovery
from soft tissue whiplash type symptoms such as this.  There is no medical
requirement for any restrictions or any reason for there to be permanent
disability.

[154]     The
defence submits that non-pecuniary damages relating to the two accidents are in
the range of $45,000 to $60,000. In their submission, the defence relies on Larlee
v. Shier, 2008 BCSC 1610. In that case, the plaintiff, who was 62 years old
at the time of trial, suffered injuries to her neck and shoulder and also to
her wrists and knees. The pain in her left neck and shoulder had not resolved
at the time of trial and medical evidence was that she would likely continue to
experience pain in the neck and shoulder. Prior to the accident, the plaintiff
was in good health and worked long hours at a high-level administrative
position in the Vancouver Coastal Health Authority. She missed two months’ work
immediately following the accident, but went back to work until a flare-up of
pain in 2008. Madam Justice Morrison awarded her $60,000 for non-pecuniary
damages.

[155]     The defence
also relies on Sylte v. Rodriguez, 2010 BCSC 207. In that case, Mr. Justice
Sewell awarded $45,000 for non-pecuniary damages to the 51-year-old plaintiff
who suffered soft tissue injuries to her lower back causing pain that was
likely to persist, and who developed depressive symptoms.

[156]     The
defence notes that the plaintiff in the instant case was injured in a motor vehicle
accident in 1996. He had “low back complaints” according to the plaintiff’s
evidence. His low back complaints “did subside”. The plaintiff said, “After two
years I started to feel quite improved.” Dr. Quirke agreed that this
history is a positive sign with respect to the prospects of the plaintiff
experiencing a full recovery from the two accidents, at least relative to those
who have had a prior injury and had not recovered. Another positive sign
pointing to improvement in symptoms is the end to this litigation, as Dr. Quirke
said on cross-examination, “Anxiety increases symptoms of pain and pain
perception”. The defence submits that other positive indicators to improvement
include the plaintiff’s active lifestyle and familiarity with exercise, sport,
and the gym setting.

[157]     In my opinion, the defence position on the evidence and the cases relied
upon are not apposite to the circumstances of the plaintiff’s injuries. In my
view, the defence position has significantly downplayed the seriousness of the
plaintiff’s injuries and their impact on his professional and personal life. In
this regard, I note the conclusion of Dr. Quirke that the plaintiff is
experiencing whiplash associated disorder, chronic mechanical pain, and chronic
myofascial pain, the latter resulting in chronic pain syndrome.

[158]     I also note that while Dr. Armstrong concluded that the
plaintiff appeared not to be experiencing chronic pain syndrome, Dr. Quirke
did include a diagnosis of chronic pain syndrome. However, Dr. Armstrong
describes the plaintiff as having chronic pain and stated that he will
experience chronic myofascial disorder for the foreseeable future. Thus, in my
view, the difference between the doctors’ opinions on this point, insofar as
their conclusions about the plaintiff’s condition are concerned, is not
material.

[159]     The plaintiff has carried on in a profession that he has loved and
has practiced with proficiency and success, although his financial rewards have
reflected his self-acknowledged realization that he has been a better lawyer
than a businessman. However, he has had to push through his constant pain, and while
he has had good and bad days, the bad days are at times as bad now as they were
in the early days following the accidents. The pain has affected his memory and
concentration which has caused him to lose confidence in himself as counsel.
Notably, two of his former clients, have lost trust in his ability to practice
to the intellectual and physical standard that he showed them when he accepted
their retainers. As a result, they would not refer clients to him, except in
one case for “simple” matters.

[160]     Despite the plaintiff taking pain medication and attempting physical
rehabilitation and therapy, his sleep remains disturbed, his energy sapped, his
daily activities (such as walking and driving) a challenge, and he no longer
enjoys the adrenalin rush of practicing law as he once did. He is now very
uncertain about his future given that he once planned to carry on with his
practice for as long as he was able to, continue traveling with his wife, and participating
in gatherings with his children, grandchildren, and friends. Social events,
attending activities of his children and grandchildren, and daily life have
become less enjoyable for him. His future is looking much less attractive, and
there is the possibility that his condition will only deteriorate with age.

[161]     It is very important in terms of assessing the plaintiff’s general
damages that Dr. Quirke concluded that his prognosis for a full recovery
from the plaintiff’s persistent symptoms is poor, given the length of time that
the plaintiff has suffered his symptoms and continues to remain symptomatic. The
doctor notes that if the plaintiff should increase his current hours of work,
then he believes that his symptoms may increase further. The doctor further
believes that his future earning potential as a lawyer has been reduced.
Moreover, the doctor opined that household chores and demanding recreational
activities are likely to increase his symptoms.

[162]     Dr. Armstrong opined that given the plaintiff’s physical
condition when he examined him, he was not able to enjoy a full and active
lifestyle. The doctor further opined that absent additional and successful
rehabilitation for his physical problems, in addition to time off work in the
pursuit of further recovery, he would not see his condition change in the
foreseeable future.

[163]     On the whole of the evidence, I find that the soft tissue injuries
sustained by the plaintiff in the 2009 accident were aggravated by the injuries
he sustained in the 2010 accident. These injuries have resulted in the
plaintiff experiencing pain and discomfort since the accidents. This pain and
discomfort has had a significant impact on his enjoyment of life. Virtually
every aspect of his daily life has been impacted; from his ability to practice
his chosen profession with the level of energy, capacity, and commitment that
he enjoyed before the accidents; to his ability to fully enjoy and engage in
social and recreational activities with his family and friends at anywhere near
the level he enjoyed prior to the accidents; and to the negative impact on his
personal relationships with his wife, family members, friends, and clients.

[164]     The plaintiff relies on a number of authorities relating to awards
of non‑pecuniary damages: Yungen v. Fraser Health Authority, 2012
BCSC 933 [Yungen] ($70,000); Ashcroft v. Dhaliwal, 2008 BCCA 352
($120,000); Bjornson v. Field, 2007 BCSC 1860 ($110,000); Love v. Pai,
2003 BCSC 900 ($100,000); Morena v. Dhillon, 2014 BCSC 141 [Morena]
($130,000); Sauer v. Scales, 2009 BCSC 1250 [Sauer] ($135,000); and
Stapley ($175,000).

[165]     The plaintiff relies particularly on the decision in Sauer.
In that case, the plaintiff (a lawyer who had retired from the practice of law
prior to his accidents due to a health condition unrelated to the accidents)
suffered a number of injuries, including thoracic outlet syndrome, and cubital
and carpal tunnel syndrome. Although the plaintiff did experience some
improvement, he suffered from chronic pain which had a significant impact on
his quality of life affecting his sleep, eating, physical fitness, and social
and personal relationships.

[166]     The plaintiff submits that although there are differences in the
nature of the injuries sustained by the plaintiff in Sauer and in the
instant case, the effect of the injuries on the plaintiff is strikingly
similar. In Sauer, the Court awarded non‑pecuniary damages of
$135,000. However, the plaintiff also noted that unlike the plaintiff in Sauer,
he has lost his professional identity from a premature loss of his active
practice.

[167]     In Yungen, the Court noted that since her accident the
plaintiff had lost interest in most activities, was less sociable, more
anxious, depressed, and pain focused. She suffered from chronic pain, headaches,
and sleeplessness. Her award was reduced from $120,000 to $70,000 to account
for her pre-accident condition, whereas in the instant case the plaintiff notes
that he was physically well, although he had some depression associated with
his loss of several family members. In any case, the plaintiff submits that he
had neither the psychological, nor the extent of physical pre-existing
conditions to warrant the negative contingencies applied by the Court in the Yungen
decision.

[168]     With regard to the circumstances of the plaintiffs in the
aforementioned cases, the defence points out that some of their injuries were
more serious than those of the plaintiff, including mild brain injuries,
depression, and post-traumatic stress disorder. However, in the plaintiff’s
circumstances, on the whole of the evidence, and upon a review of the
authorities cited by the parties, I am satisfied and find that a fair and
reasonable award to the plaintiff for non-pecuniary damages for pain,
suffering, loss of enjoyment of life and loss of amenities is $140,000.

B.             
Past and Future Income Loss

1.              
Legal Basis

[169]     Both past
and future income loss is properly considered on the basis of loss of earning
capacity: See Morena, at para. 135; Rosvold v. Dunlop, 2001
BCCA 1, at para. 8 [Rosvold].

[170]      
The Court in Rosvold sets out the basic principles in assessing
damages for loss of earning capacity, as follows:

[8] The most
basic of those principles is that a plaintiff is entitled to be put into the
position he would have been in but for the accident so far as money can do
that. An award for loss of earning capacity is based on the recognition that a
plaintiff’s capacity to earn income is an asset which has been taken
away: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R.
229; Parypa v. Wickware (1999), 65 B.C.L.R. (3d) 155
(C.A.). Where a plaintiff’s permanent injury limits him in his
capacity to perform certain activities and consequently impairs his income
earning capacity, he is entitled to compensation. What is being compensated is
not lost projected future earnings but the loss or impairment of earning
capacity as a capital asset. In some cases, projections from past earnings may
be a useful factor to consider in valuing the loss but past earnings are not
the only factor to consider.

[171]     Once
impairment of a plaintiff’s earning capacity as a capital asset has been
established, that impairment must be valued: See Rosvold, at para. 11.
As a starting point, the valuation may involve a comparison of the likely
future of the plaintiff if the accident had not happened with the plaintiff’s
likely future after the accident has happened. However, this is not the end of
the inquiry. The overall fairness and reasonableness of the award must be
considered taking into account all the evidence.

[172]    
An award for loss of earning capacity may include consideration of the
following factors (Rosvold, at para. 10):

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

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

3. whether 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. whether the plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market.

[173]     The
assessment of the plaintiff’s loss of earning capacity must deal, to some
extent, with the consideration of hypothetical events. The
standard of proof to be applied when evaluating hypothetical events that may
affect an award is simple probability, so long as they are a real and
substantial possibility and not mere speculation (Rosvold, at para. 9;
Perren v. Lalari, 2010 BCCA 140, at para. 30 [Perren]).
These possibilities are to be given weight according to the percentage chance
they would have happened or will happen (Rosvold, at para. 9). The
burden of proof for actual past events is the normal civil standard, i.e. balance
of probabilities.

[174]     If a plaintiff discharges the burden of proof for a future event
leading to an income loss, he or she may then go on to prove the quantification
of that loss of earning capacity, either on an “earnings approach” or a “capital
asset approach”: See Perren, at para. 32. The former approach will
be more useful when the loss is more easily measurable, while the latter
approach will be more useful when the loss is not as easily measurable. A
plaintiff may 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 (Perren,
at para. 32).

2.              
The Plaintiff’s Position

[175]     The plaintiff submits that, despite the fact that he continued to
work full time following the accidents, he has established, on a preponderance
of the evidence that as a result of the injuries he sustained in the accidents,
he has incurred significant past income loss, a real and substantial
possibility that he will continue to incur significant income loss, and that
his capacity to earn income has been reduced.

[176]     The plaintiff submits that despite his extensive efforts to work through
his pain, he has found that he can no longer enjoy or properly function in his
career as a trial lawyer.

[177]     The plaintiff relies on the decision in Clark v. Kouba, 2012
BCSC 1607 [Clark], a case where the Court awarded a plaintiff future
wage loss despite the fact that the plaintiff had not missed any time away from
her employment as a result of the accident, other than short periods to attend
medical appointments or having to leave work early due to her headaches. Madam
Justice Power cited both Rosvold and Perren in her reasons for
judgment for the applicable law (paras. 76-77). The decision was upheld by
the Court of Appeal: See 2014 BCCA 50.

[178]     The plaintiff notes that, in Clark, the
employer had not noticed any change in Ms. Clark’s work following the
accident, but the trial judge accepted her evidence that she experienced
significant pain that interfered with her ability to concentrate on her work. The
trial judge also accepted Ms. Clark’s evidence of future wage loss for a
two- to three-month rehabilitation period, supported by medical evidence, and
increased that period four-fold for the negative contingencies that Ms. Clark
“may be managing her chronic pain right up to the conclusion of her working life”
(para. 84). Finally, the plaintiff notes that the Court of Appeal, in
endorsing the trial decision in Clark, confirmed that the capital asset
approach in assessing damages for future income losses is appropriate when
future losses are not easily measurable.

[179]     The plaintiff in the present case compares his situation to that of
the plaintiff in Clark. He submits that, unlike the
plaintiff in Clark, he has demonstrated income loss as a direct
result of his injuries. He has had to turn away work and referrals with the
result that, post accidents, he is only able to carry about a dozen files. Like
Clark, the plaintiff in the case at bar notes he has been advised to
undergo an extensive rehabilitation. As recommended by Dr. Armstrong,
rehabilitation will involve two months away from work, and a further ten months
of extensive rehabilitation resulting in significantly reduced time at work.

[180]     Finally, the plaintiff notes that Ms. Clark had a desk job, and
the trial judge recognized the possibility of a “most optimistic outcome” that
she might be able to return to work after her period of rehabilitation in a
manner that would minimize the impact on her working life. The plaintiff says that
this optimistic outcome is unavailable to him. The very nature of litigation
practice is being attendant to one’s clients and files. One cannot simply take
a respite without displacing the files; and, as these files are the source of
income, the real and substantial risk of an event leading to future income
loss, and the attendant losses therefrom, are radically increased for the
plaintiff.

[181]     The plaintiff argues that his future losses are not mere
speculation, but have been assessed in accordance with the evidence of past
losses and the “real and substantial possibility” that he will continue to suffer
from his pain and injuries resulting in devastation of his practice. Further,
and in keeping with the reasoning of the Court in Rosvold, his past
income losses are useful as a guide to determining the extent of his future
losses, but they are not conclusive. The loss of potential lucrative referrals
is evidence that he has lost a very significant capacity to earn income, and
these estimated increases in income are events that must also be considered.

[182]     It is submitted by the plaintiff that, on a fair assessment of his
losses, his damages encompass the loss of lucrative work, the “value” of which
may be difficult to measure. He refers to the Court of Appeal decision in Clark
to assert that the valuation does not become “theoretical” or “speculative”
simply because the award is not a mathematical determination. He submits that
the loss and the potential for more and similar losses have been proven and, as
in Clark, the plaintiff is entitled to recovery for the same, despite
their uncertain and immeasurable value.

[183]     The plaintiff submits, relying on Steward v. Berezan, 2007
BCCA 150, at para. 17, that he has satisfied his onus to prove “a substantial
possibility” that he will continue to suffer from chronic pain in the future,
and that “the court must then award compensation on an
estimation of the chance that the event will occur”. Further, says the
plaintiff, such pain may in fact worsen, and it is an inextricable conclusion
that his future continuing pain will lead to future income loss. He argues that
the uncontradicted evidence from both the opinion of Dr. Leith, and that
of Dr. Quirke, shows that, chronic pain which does not resolve during a
period of six months to two years will remain indefinitely in the vast majority
of cases. Dr. Armstrong hopes that the recommended rehabilitation program may
decrease the pain somewhat; however, he is unable to say with any certainty
that the plaintiff’s pain level will improve.

[184]    
The plaintiff notes that the law is that he has
a duty to mitigate his losses. Importantly, however, the law is clear that the
burden of proof moves to the defendant if the defence alleges that the
plaintiff could have and should have mitigated his loss. The plaintiff cites Branco
v. Epshtein (2006), 213 O.A.C. 24 (S.C.J.) [Branco],
at para. 14, for the proposition that, once a plaintiff has made out a
prima facie case of actual or prospective damages, the burden lies upon the
defendant to prove circumstances whereby the loss could have been diminished.

[185]    
Relying on paras. 20-21 of Branco,
the plaintiff says the defence must bring forward “reasoned, factually based
evidence” to illustrate that the plaintiff failed to mitigate, addressing three
elements:

(1) the steps which the plaintiff might have
pursued to avert loss;

(2) the reasonableness of pursuing those
steps; and

(3) the extent
to which loss would thereby have been averted (in effect, the amount by which
the damages should be reduced).

[186]     The plaintiff submits that the defendants have failed to lead any
evidence that he can, or could have, avoided any of the past income losses.
Furthermore, says the plaintiff, they have not addressed the likelihood that
there is a real and substantial possibility of events that would lead to future
losses, or led any evidence whatsoever that he is able to mitigate these future
losses by performing some other occupation.

[187]     The plaintiff submits that the defendants have provided no evidence
of steps he could have pursued to avert his losses. The plaintiff further
submits that the defendants have shown no course of action that was a
reasonable alternative for him given his pain, injuries, skillset, and
background. Moreover, the plaintiff submits that the defendants have not shown any
course of action that would have resulted in an aversion of future losses.

[188]     The plaintiff notes, however, that he has led evidence that he has
attempted to work through his pain, even though his ability to do so has been
severely hampered. In particular, the plaintiff points to the evidence of Dr. Armstrong
and Dr. Quirke, to the effect that his prognosis is guarded and his
practice of law is likely to be adversely affected by his symptoms. The
plaintiff says that it should be remembered that Dr. Quirke and Dr. Armstrong
were dependent on his self-report and belief that he was still able to practice
law, albeit with significant difficulty.

[189]     The plaintiff submits that he has accepted his limitations and acted
reasonably in all respects. He says he has diligently followed the therapy
plans as directed, and has attempted to maintain the semblance of a legal
practice as his source of income. The plaintiff says that at age 67, he is
unlikely to be retrained in a field other than law, and that it is unreasonable
and unrealistic for him to acquire new skills or education at his age.
Furthermore, there is no evidence from the defendants that his future losses
would be mitigated by an investment into alternative employment, as there are
very real marketplace issues for a man of his advanced age.

[190]     The plaintiff submits that there simply is no evidence to suggest
that there are reasonable alternatives for him. In fact, he says it would be
most reasonable for him to simply retire, suffering further losses. To date, he
has quite unreasonably mitigated his losses to the benefit of the defendants, simply
because of his passion for the law.

[191]     In Smith v. Pang (1993), 83 B.C.L.R. (2d) 298 (S.C.), the plaintiff, a 50-year-old flight attendant was held not to
have failed to mitigate when she simply retired five years earlier than planned
as a result of injuries suffered in a motor vehicle accident. She had worked as
a flight attendant for 30 years, had no other training or education, and was no
longer able to manage the pain of being constantly on her feet. In Just v.
British Columbia (1991), 60 B.C.L.R. (2d) 209 (S.C.) [Just], the
plaintiff was a 58-year-old man with a demonstrated “motivation to work”. He was
held not to have failed in his duty to mitigate where he was not suited “by
age, language skills, training, or experience” to do any of the jobs suggested
by the defendant’s expert.

[192]     The plaintiff relies on these cases to argue it would be useless, at
his advanced age and with his chronic condition, to make attempts at new
employment.  The plaintiff says he is like the plaintiff in Just, i.e.
a person “who values work for its own sake and not merely remuneration. He
possesses a strong work ethic and like many people defines himself in part by
reference to the work that he performs”. Further, says the plaintiff, as stated
in Just, “the defendant is the tortfeasor and as such is not entitled to
argue for the imposition of an onerous responsibility on the victim to reduce
his wage loss.”

[193]     The plaintiff submits that while the formal onus of proof that may
exist on a defendant who alleges that a plaintiff did not adequately mitigate
for past income loss may not exist in the same form in relation to future
employment loss, he says that as a practical matter there is little difference.
Any contingencies for future employability must rest on evidence of capacity to
perform competitive employment. In addition, all of the foregoing comments
regarding what types of employment a plaintiff must take or the extent of pain
that is reasonable for them to endure are identical whether it relates to past
mitigation or future employment opportunities. As a result, the plaintiff
submits that where a disability impacts competitive employment generally there
is a practical onus on the defendant to not only show a real and substantial
possibility of improvement, but also that the improvement will translate into
the ability to be employed competitively.

[194]     The plaintiff argues that since the defence has not been able to
meet this practical burden, the defence has attempted unsuccessfully to
demonstrate through the evidence of Dr. Elliott that the plaintiff would
have a shortened lifespan. The plaintiff submits that, absent real medical
evidence of a condition which cannot be mitigated through modern treatment, the
defence has not provided any evidence that “but for” the accidents his work
life would have been shortened. In fact, his high motivation and love of his practice
would likely have had him working well past his mid‑70s.

3.              
The Defendants’ Position

[195]     The defence argues that the plaintiff has failed to prove his claims
for past and future income loss. They point to the evidence that the
plaintiff’s declared income from his practice was higher in 2010, and that he
has worked steadily, including evenings and weekends, since the accidents.

[196]     Regarding the plaintiff’s assertion that he has lost referrals, or
that he has turned away work and now carries fewer files than he did before the
accidents, the defence submits that this evidence does not necessarily
translate into a conclusion of lower income. The defence submits that working
on fewer, but more remunerative files can in many respects be the ideal. The
defence notes the evidence of Ms. Kirkham, specifically her efforts to
convince the plaintiff to take on fewer, but better paying clients, and to turn
away so many pro bono files.

[197]     In any event, the defence mentions the evidence of the plaintiff and
Ms. Kirkham that the plaintiff is not a good businessman. They also note the
fact that he did not produce any work related business or financial records to
substantiate his claims for large income losses.

[198]     The
defence notes the absence of an analysis from an economist or forensic
accountant regarding the plaintiff’s actual wage loss, if any, resulting from
the accidents. This is despite the fact that Mr. Darren Benning of PETA
Consultants prepared several reports at the plaintiff’s request. The defence
points out that Mr. Benning’s report did not take into account data that
specifically reflected the legal profession. The defence submits that the Court
should draw the conclusion that the plaintiff cannot establish any past loss of
income as, in the defence’s view, consulting economists and forensic economists
are trained to make these kinds of analyses.

[199]     On the
issue of future income loss, the defence cites Perren, where, at para. 32,
the Court stated that a plaintiff must first prove, “that there is a real and
substantial possibility of a future event leading to an income loss.”

[200]     The defence stresses the fact that the plaintiff did not miss any
time away from work following the 2009 accident, and only missed two days of
work following the 2010 accident. The defence submits that the plaintiff has
failed to prove that there is a real and substantial possibility of a future
event leading to an income loss. The defence also relies on Singh v.
Borejszo, 2013 BCSC 1584, where, at para. 71, the Court, citing
Dickson J. in Hardychuk v. Johnstone, 2012 BCSC 1359, said:

Insofar as 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.

[201]     In this regard, the defence relies upon the evidence of Dr. Elliott
on the plaintiff’s life expectancy. The defence notes that while plaintiff’s
counsel asked the doctor questions challenging the methodology of the studies
that he relied upon in support of his conclusions, the plaintiff’s counsel did
not put to the doctor or allow him to address the matter of how, if at all, his
response to the questions would impact on his opinion. The defence also notes
that the doctor testified that he made certain adjustments in relying upon the
studies, and that in fact he “made very substantial discounts” and was “generous”
in making discounts.

[202]     With respect to other negative contingencies, the defence points to
the evidence that the plaintiff has pre-diabetes or border-line diabetes, heart
disease, a recurrence of chest pain which is being investigated, weight related
issues, and various other health related issues.

4.              
Analysis

[203]     I accept, in principle, the plaintiff’s submission on wage loss,
including his position on mitigation. I am satisfied on the whole of the
evidence that the nature, degree, and duration of the plaintiff’s accident-related
injuries have had a profound impact on his ability to practice law at the level
he sustained prior to the accidents and that this has contributed to financial
consequences for him that must be assessed and compensated for in this action.

[204]     The evidence of several of the lay witnesses demonstrates the
difference in the plaintiff’s ability to function at work since the accidents. Mr. Dolo testified that on two occasions in early 2013, the
plaintiff advised him that he could no longer accept referrals from him. This
was because of the plaintiff’s pain, and the fact that the plaintiff felt he
could not do justice to the clients. Mr. Dolo testified that he has
stopped referring clients to the plaintiff.

[205]     Ms. Kirkham testified that in 2012 the plaintiff turned away
clients and that in 2013 he had about ten active files. Ms. Friesen, whose
trial was in July and October 2011, testified that she would not refer the
plaintiff to a friend because of his physical and emotional condition. Ms. Rossi,
whose trial was in March 2010, said that she would not retain the plaintiff
again for a complex case and would refer him to a friend for only simpler cases.
Mr. Macdonald testified about the plaintiff’s physical and emotional
condition and described the plaintiff being in pain following the 2010 accident
that has worsened to this day. He noted that the plaintiff’s mental agility
following the accidents was not the same and that his memory has diminished.

[206]     The fact is that the plaintiff is a skilled and competent counsel
who has persevered in his practice despite his pain and discomfort, but who now
cannot function as counsel with the same degree of energy and intensity as he
did prior to the accidents. I accept the evidence as a whole that he has lost
referrals from former clients and business associates, which has resulted in a
loss of income in the past and will result in a future loss of income.

[207]     Dr. Armstrong opined that the outlook for whether the plaintiff
could recover to his level of physical function “as it would be today, but for
the [accidents] is very guarded”. Dr. Quirke opined in his report that
should the plaintiff increase his current work hours, it is reasonable to
presume his symptoms may increase further. Consequently, the doctor stated that
his future earning potential as a lawyer has been reduced, and he remains less
marketable and less attractive to future clients that might seek his services.

[208]     The plaintiff testified that he is at a crossroads in terms of what
to do with his practice given that he is experiencing difficulty with
concentration and has to cope with physical challenges such as standing or
sitting for long periods of time. His condition has impacted the amount of time
he spends driving, specifically that he finds long road trips difficult. As a
result he does not attend at his office as much.

[209]     I accept the plaintiff’s submission that he has proven to the
requisite standards that he is entitled to an award for past and future income
loss.

[210]     In assessing the value of the plaintiff’s losses, I am mindful,
drawing from Rosvold, at para. 8, and Perren, at para. 30,
that the award should compensate for the loss or impairment of the plaintiff’s earning
capacity as a capital asset. His projected lost future earnings, even if
quality evidence were available to support the amounts claimed, is not
determinative of the appropriate award (Rosvold, at para. 11).

a)             
The Plaintiff’s Past Wage Loss

[211]     In his claim for past wage loss, the plaintiff reports his gross and
net income for the years 2009 to 2012 as follows: 2009 ($132,267.86 and
$28,244.49); 2010 ($193,061.85 and $106,031.96); 2011 ($112,476.83 and $24,696.19);
2012 ($180,637.86 and $97,325.92).

[212]     The plaintiff’s average net income for the period 2009 to 2012 is $64,074.64.
He claims that given his overhead increases from $65,000 to approximately
$80,000 annually, this reduces his net income based on a number of fixed cost
items including rent, insurance, practice fees, etc.

[213]     The plaintiff also notes that his gross income for 2008 was $183,517,
and net income was $16,617. He claims that this was the result of income
averaging due to losses in 2006 and 2007. He submits that if his 2008 net
income is added to his 2009 to 2012 net income, then his average net income for
the period 2008 to 2012 averages $69,970.74.

[214]     In addition, the plaintiff notes the unbilled and unpaid fees owing
to the plaintiff by Mr. O’Reilly in the amount of $75,000 over three
years, would increase his average earnings by $25,000 per year for a total of
$94,970.74. He concedes that since Mr. O’Reilly intends to pay this amount
to the plaintiff this amount should only be considered for future income loss.

[215]     The plaintiff submits that given the plaintiff’s overhead averages
about $83,000 annually (2012 amount plus an approximate valuation of $20,000
for additional secretarial) any gross income above this translates into a
direct increase in his net income as most of this cost is largely fixed with
the exception of the secretarial costs.

[216]     As a result, any increases in billing during the 2010 to 2012 period
would translate directly into increased net income. The plaintiff says that but
for his accident related injuries he would have earned an additional $80,000 to
$120,000 per year (an additional 200 to 300 hours per year at $400 per hour).
He says that a net loss of $100,000 per year times two equals $200,000 above
the income he earned while he was “disabled”.

[217]     As for the year 2013, the plaintiff had net income of $11,773.29.
This results in a further loss of $58,197.45 to increase his earnings up to his
average net income of $69,970.74.

[218]     The plaintiff submits that had he taken on the case in Victoria with
Mr. Dolo, accepted other referrals from Mr. Dolo, serviced his
existing files, and not had to turn away work, his gross income could easily
have exceeded $450,000 for 2013/2014 (based on 1120 hours at $400 per hour).

[219]     For the purposes of his submission, the plaintiff used the net
figure of $390,000 to claim wage loss from January 1, 2013 to April 30, 2014
(1.3 years times $300,000 which equals $390,000), less his income earned of
$15,697.72, for a loss of $374,302.28. This would give a total past income loss
of $574,302.28 (this loss differs from the plaintiff’s submissions due to the
value of net income for 2013 used in the plaintiff’s calculations). The
plaintiff is claiming a total past wage loss of $571,334 for past income loss.

[220]     The evidence in support of the quantum the plaintiff claims for
income loss is thin, to say the least. As noted by the defence, he has not
produced any business related records to substantiate his loss. Moreover, while
I accept the evidence that the plaintiff has turned away files and that he has
lost referrals, there is little or no evidence upon which to assess the value
of lost work. In my view, it would be unsound to extrapolate a value of lost
work based solely on the fact that the plaintiff gave up a lucrative fee
relating to a retainer from a former client in Victoria.

[221]     The evidence is clear that even when, prior to the accidents, the
plaintiff claims he was carrying 100 or more files, this volume of work did not
result in the level of income that one would anticipate from the practice of
such a senior and experienced counsel. Both the plaintiff and Ms. Kirkham testified
that the plaintiff’s practice was heavily weighted towards pro bono work for
clients. The plaintiff chose to accept many pro bono clients, even though he no
doubt had the skill and reputation, on the evidence of Mr. Dolo, Ms. Kirkham,
and the plaintiff himself, to attract affluent clients. There is no reason to
believe on the evidence that the plaintiff would have changed the management of
his practice had the accidents not occurred, given the pleasure he has always
derived from assisting litigants regardless of their ability to pay his fees. Indeed,
it is the very essence of why he preferred solo practice.

[222]     Despite the plaintiff’s longstanding practice of accepting pro bono
work, I have found that he is no longer able to accept either the number or
complexity of files with which he used to be able to work quite skillfully.
That is, he has lost the ability to take advantage of all of the client
opportunities which might otherwise have been open to him had he not been
injured. He should be compensated for the loss of that asset.

[223]     That being said, I am mindful of the caution articulated in Rowe
v. Bobell Express Ltd., 2005 BCCA 141, at para. 28, to the effect that
damages must be quantified on the basis of what a plaintiff would have,
not could have, earned absent the injury. Although that case was not
cited by either of the parties, in my view the principle expressed in that case
is most relevant here. It would not be fair or reasonable, in my view, to
assess the plaintiff’s loss of earning capacity on the basis of a rate of $400
per hour when the evidence is that he frequently accepted pro bono clients, and
it is his lack of ability to accept the same number of clients as before that
forms, in part, the basis for his claim under this head of damages.

[224]     At the end of the day, doing the best that I can with the available
evidence on this issue, I assess and fix the plaintiff’s past wage loss claim
in the amount of $175,000.

b)             
The Plaintiff’s Future Income Loss

[225]     On the issue of future income loss, the plaintiff claims he would
have made net income of $200,000 annually until the year 2016, and an average
income of $100,000 per year until the year 2021 (to age 75). He claims a
present value loss of future income (based on the calculations contained in the
reports of Mr. Benning dated January 28, 29, and May 5, 2014) in the
amount of $492,277 for the period May 1, 2014 to December 31, 2016, and $309,400
for the period January 1, 2017 to December 31, 2021, for a total loss of $801,677.

[226]     The plaintiff also submits an alternative, conservative approach to
estimating future income loss assuming wage loss of $60,000 per year to age 70,
and $30,000 per year thereafter to age 75 for a total present value loss of
$259,380.

[227]     The plaintiff also submits that if the Court finds that he is able
to work full or part time, then he says that he will need to be off work for at
least eight weeks. He relies on Dr. Armstrong’s report for this submission.
The plaintiff claims that Dr. Armstrong’s report supports a two-month work
loss plus a further ten months of reduced income to accommodate his
rehabilitation. In addition, even if the plaintiff is able to work part time
for a number of years, consideration must still be given to his significant
overhead for fixed costs. If he can only work 50% of the time, he will continue
to pay his overhead (50% of his average overhead would be $40,000 to $50,000
annually). Using this example, and based on an annual income of $100,000, the
plaintiff claims a loss of $105,000.

[228]     I am satisfied on the evidence that while the plaintiff is likely to
continue working, there is no doubt in my mind that he will not be able to
sustain anywhere near the volume of work that he did before the accidents, and
there is a strong likelihood that he may have to retire before the age of 75,
which I accept as his intended retirement date. In considering the plaintiff’s
likely date of retirement, I have not given great weight to the evidence of Dr. Elliott
with respect to the plaintiff’s life expectancy, as I agree with the
plaintiff’s position that it is not helpful in the context of the whole of the
evidence.

[229]     In assessing the plaintiff’s future income loss, I have taken into
account the lack of quality evidence in support of lost income, and the clear
evidence that the plaintiff routinely accepted pro bono clients as part of his
practice and had no apparent intention to change this practice. In doing the
best that I can to compare the plaintiff’s likely future working life if
the accidents had not happened with the plaintiff’s likely future working life
after their occurrence, I award the plaintiff $375,000 for
future loss of income. That amount reflects my weighing the positive and
negative contingencies as well as the time that the plaintiff will be away from
his work due to his attendance at programs for his rehabilitation.

C.             
Cost of Future Care

[230]     The plaintiff seeks $66,175 for the cost of future care based,
essentially, on the recommendations of Dr. Armstrong. In addition, the
plaintiff claims $50,000 for the cost of future rehabilitation.

[231]     In my view, these amounts are excessive. In particular, the
plaintiff’s claim for $50,000 for the cost of future rehabilitation is
unsupported by the evidence.

[232]     An appropriate award for the damages under this head should, in my
view, more closely reflect the recommendation of Dr. Quirke, who is very
familiar with the plaintiff’s symptoms and required therapy. In his report, Dr. Quirke
recommended that the plaintiff be referred to a multi-disciplinary pain clinic.
In his opinion, optimal treatment would include assessment by a physician
specializing in pain medicine plus assessments by a psychiatrist, psychologist
and an occupational therapist. He feels that any further treatments that the
plaintiff might require would be best assessed by these kinds of medical and
health care practitioners. Given that the waiting list in the public health
care system runs to several years, Dr. Quirke suggests that the plaintiff
attend a private facility.

[233]     I have no evidence as to the cost associated with the kind of
collaborative service recommended by Dr. Quirke. However, I note that Dr. Armstrong
estimates at page 16 of his report that a “group-style multidisciplinary
program of pain management” at a local private clinic would likely be about
$15,000. Although, he notes that the plaintiff has possibly not reached
“maximum medical improvement” and that the main objective of such a program is
to assist the patient who is at maximum medical improvement to achieve better
management skills and improve overall functionality. In any event, in my view,
a fair and reasonable amount the plaintiff should be awarded for the cost of
future care is $30,000.

D.             
Special Damages

[234]     The plaintiff seeks the amount of $34,886.76 for special damages. The
defence objects to the claim for the plaintiff’s gym membership in the amount
of $1,597.05 on the basis that the plaintiff has held a gym membership since
1995, continues to hold a gym membership, and the fact that Dr. Armstrong
recommended an end to passive therapy and an increase in self-directed exercise
activity three to four times a week.

[235]     In my view, the defence objection to it being responsible for
payment of the plaintiff’s gym membership is sound and should be sustained. In
the result, I award the plaintiff $33,289.71 for special damages.

[236]     The plaintiff’s $20,000 in trust claim for his inability to provide
assistance with household chores is unsupported by the evidence and therefore
dismissed.

VII.          
Conclusion

[237]     As set out above the plaintiff is awarded the following amounts:

B.I. Cohen J.