IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141007

Docket: M125590

Registry:
Vancouver

Between:

Donald William
Farbatuk

Plaintiff

And

Norberto Lagrimas,
Richmond Imports Ltd. and Stephen Allen

Defendants

Before:
The Honourable Madam Justice Kloegman

Reasons for Judgment

[1]            
On December 24, 2011, in Richmond, B.C., the plaintiff was rear-ended
while at a full stop on Highway 91. The defendant has admitted liability
for the accident and the plaintiff claims compensation commensurate with a
severe whiplash, together with damages for loss of past and future earnings
from his 25 years of employment at Scott Paper Mill (now Kruger Paper
Mill). He also claims for cost of future care, and loss of housekeeping or
renovation services. Special damages have been agreed to in the amount of
$1,997.73.

[2]            
The defendant concedes that the plaintiff sustained soft tissue injuries
to his neck and back in the accident, but says these injuries were of moderate
severity only. The defendant takes the position that the plaintiff had
substantially recovered by July 2012, or alternatively by July 2013,
and has no lasting disability that will impair his earnings or enjoyment of
life in the future. The defendant submits that any losses suffered by the
plaintiff after July 2012, or July 2013, were not caused by the
accident but were either the result of the plaintiff’s personal choice to
change employment, or alternatively, the result of a pre-existing degenerative
condition that would have manifested itself in any event.

I.                
The accident

[3]            
On December 24, 2011, at about 8:25 a.m., the then 47-year-old
plaintiff was driving his wife’s Ford Explorer on Highway 91 towards the
centre of Richmond, when he came to a full stop for traffic that had backed up
due to an accident further up the highway. The defendant was driving his Honda vehicle
in the same lane as the plaintiff but one car behind him. When the car directly
behind the plaintiff changed lanes, the defendant slowed down, but was unable
to stop before colliding with the rear end of the plaintiff’s vehicle. The
defendant estimated that he was travelling about 20 to 30 kilometres per
hour when he collided with the plaintiff.

[4]            
The rear of the Ford Explorer was smashed in and its bumper was hanging
off. The driver’s seat broke on impact and the doors would not open or shut
properly. It was later characterized as a “write off” by the insurance company.

II.              
injuries

A.             
The Plaintiff’s Evidence

[5]            
The plaintiff testified in chief that at the scene he got out of his car
unassisted and surveyed the damage. He was not visibly injured, and not in immediate
pain. He sustained no cuts, bruises or loss of consciousness. He felt stunned
and an adrenalin rush more than pain. He declined the paramedic’s invitation to
take him to the hospital to be checked out. He tore off the dislodged bumper
and drove himself home.

[6]            
The plaintiff testified that as the day progressed, he started to
stiffen up and his back got tighter. He had to leave Christmas Eve celebrations
early because of the way he felt. Christmas Day was difficult. This testimony was
corroborated by his wife, Maria Farbatuk.

[7]            
The plaintiff testified that on Boxing Day he went into a walk-in clinic
because of “extreme issues” with his back and neck. He went to see his family
physician Dr. Miki on January 3, 2012, who eventually sent him to a
chiropractor.

[8]            
The plaintiff described the first two weeks after the collision as
“quite debilitating” from back spasms and headaches. He spent the next six
months off work attending chiropractic treatment and a nine-week Back in Motion
rehabilitation course. He said the chiropractic treatment gave him some relief,
but only temporarily.

[9]            
The plaintiff returned to work gradually in July 2012, on the
recommendation of the Back in Motion therapist, but said at trial that he had
not felt ready to return to work. The plaintiff worked in a paper mill as a
third hander, and sometimes as a back tender. He described his job duties as
spinning reels of paper weighing 3000 lbs., which took enormous physical
effort and a certain amount of crawling, lifting, torqueing and finger dexterity.
Half of a 12 hour shift was spent on the machines and half was spent
driving a forklift outside over potholes and debris.

[10]        
The plaintiff started in July 2012 with light duties for about three
weeks, and then performed his normal heavy duties for another six months. In
January 2013 he stopped working for another six month period. He said the
reason for this second period of absence was because the cold weather bothered
his neck and he did not feel safe driving the forklift. He returned to work in
August 2013 but decided he could not deal with his job anymore, so in
January 2014 he transferred out of the machine division of the mill into
the shipping and receiving department, which was far less physically demanding.

[11]        
I tend to agree with defence counsel that it was difficult to get a
clear picture of the plaintiff’s symptoms throughout his recovery period, or
his current condition, from his own evidence. He testified in chief that he had
ongoing concerns with his neck and back that varied day to day. On bad days, he
said he had headaches and “absolutely no movement in his neck side to side.” On
cross-examination he stated he could not recall a day without pain. In his
examination for discovery he said he had pain most days, but not every day. On
cross-examination he said that before he changed jobs he had headaches more
than once a week; on examination for discovery he said he had headaches once a
week, depending on the weather. On cross-examination he denied going months
between back spasms, but at examination for discovery he said his last spasm
could have been months ago. He denied that his sleep disruption was only
occasional, but that is what he told Dr. Werry in April 2014.

[12]        
The plaintiff was adamant that he had had to attend Back in Motion for
two nine-week rehabilitation sessions; one while he was off work in 2012 and
one while he was off work in 2013. Even when confronted with the Back in Motion
intake report of June 2013 showing he only attended there on one day in
2013, he continued to disagree. Defence called Carly Cannata from Back in
Motion to clarify that the plaintiff had never attended Back in Motion for a
second rehabilitation program.

[13]        
In addition to the above inconsistencies, the plaintiff claimed that:

1)    he had only one
or two safety violations in his employment at Kruger, but was obliged to admit
to several more than that on cross-examination;

2)    he had pulled
the bumper off his vehicle at the accident scene at the request of the Highways
Department. He then said that he thought the Highways Department had done it.
His counsel read in examination for discovery evidence from the defendant, who
stated that he observed the plaintiff remove the bumper; and

3)    he had not
missed any time at work due to back pain prior to the accident, but the unanswered
notice to admit filed by defence counsel reflects work absences due to back
pain on multiple occasions prior to the subject accident.

[14]        
These inconsistencies in the plaintiff’s evidence, and his tendency to
speak in hyperbole, called the plaintiff’s reliability as a witness into
question. There was some corroborating evidence from the medical experts on the
nature of his injuries and their effect on his function, but where the expert
evidence relied solely on the plaintiff’s subjective self-reporting, I have had
to apply a healthy dose of scepticism.

B.             
The Medical Evidence

[15]        
Dr. Miki diagnosed the plaintiff with Grade II whiplash associated
disorder of the neck, middle and lower back as a result of the accident.

[16]        
In his medical report dated February 14, 2014, Dr. Miki opined
that:

The physical examination has been
consistent with a significant decrease in cervical lordosis as demonstrated by
physical examination and x-ray and also decreased range of motion particularly
in the neck as recorded by myself, physiotherapy, and my locum tenens.

[17]        
On cross-examination Dr. Miki admitted that some of his findings
and opinions regarding the plaintiff’s ongoing symptoms were merely
restatements of what the plaintiff told him. He also admitted to having misread
his locum’s notes, which in fact reflected improvement in the plaintiff’s
condition over what had been assumed by Dr. Miki. Overall Dr. Miki
tended to advocate for his patient, and was less than impartial in his
evidence.

[18]        
In addition to diagnosing the plaintiff with Grade II whiplash, Dr. Miki
also diagnosed the plaintiff with a pre-existing asymptomatic diffuse
idiopathic skeletal hyperostosis (D.I.S.H.). He explained that this is a very
rare condition without a known cause. Simply put, it is a bony formation, or
fusing, of the ligaments that attach each vertebrae of the spine which causes
them to become very stiff with a decreased range of motion.

[19]        
In his report, Dr. Miki stated:

It is uncertain as to whether the
condition [D.I.S.H.] pre-existed the trauma but [the plaintiff] did not have
any symptoms. It is known that this condition can cause pain and it can be
aggravated by trauma. Whether the trauma will increase the deterioration of
this condition is not known but the possibility is definitely there.

[20]        
Plaintiff’s counsel sent the plaintiff to an independent medical
evaluation by Dr. Richardson, orthopaedic surgeon, in November 2013.
Dr. Richardson concluded:

1.         Mr. Farbatuk had pre-existent degenerative changes
in his cervical and thoracic spine that were asymptomatic prior to the date of
accident injury. The initial x-ray of the lumbar spine did not report any
degenerative changes but at the time of examination, degenerative facet joint
changes were suspected.

2.         As a result of the motor vehicle accident of
December 24, 2011 Mr. Farbatuk sustained:

a          soft tissue injury to the cervical spine;

b          soft tissue injury to the thoracic spine and

c          soft tissue injury to the lumbar spine.

The soft tissue injuries to the
cervical and thoracic spine were on top of pre-existent degenerative changes
that were quiescent prior to the date of accident injury.

[21]        
Finally, in April 2014, defendants’ counsel sent the plaintiff to an
independent medical evaluation by an orthopaedic surgeon of their choice –
Dr. Werry. He concluded:

Mr. Farbatuk’s MVA of December 24, 2011 caused soft
tissue injury to his neck, and upper and lower back. The nature of the injury
was probably moderately severe muscle strain and ligamentous sprain. Plain
x-rays he had made in January 2012 showed mild degenerative changes in his neck
in the facet joints (small interconnecting joints between adjacent vertebrae),
at 2 levels in the upper cervical spine. X-rays of his thoracic spine showed
degenerative change….

His symptoms of neck pain and stiffness and back stiffness
and muscle spasm were typical for soft tissue injury.

Mr. Farbatuk’s persistent pain in
his neck and low back is myofascial pain – arising from muscles and connective
tissues.

[22]        
It appears from the medical evidence that all three expert witnesses
agreed that the plaintiff suffered a moderate to severe whiplash to his neck
and back in the accident. It also appears that the medical experts agree there
is evidence of a pre-existing degenerative condition in the plaintiff’s back
and neck, whether D.I.S.H. or something else.

III.            
Prognosis

[23]        
Dr. Miki described the plaintiff’s prognosis as “extremely guarded”,
particularly in relation to the work the plaintiff has done for the previous
25 years. Dr. Richardson’s prognosis for the plaintiff’s neck and
back was moderate, with no increasing risk of developing osteoarthritis.
Dr. Werry stated in his report that the plaintiff will probably continue
indefinitely to experience variable neck and low back pain and stiffness, but that
he probably has not reached maximum medical improvement.

[24]        
As stated earlier, Dr. Miki’s evidence was given in an advocational
manner and he relied heavily on the plaintiff’s self-reporting. His prognosis
of “extremely guarded” was not consistent with some of his clinical notes that
had been omitted from his report. These showed steady and continuous
improvement in the plaintiff’s position. His prognosis was also not consistent
with the evidence of Louise Craig, functional capacity evaluator, who opined
that the plaintiff’s main limitation is in his range of motion in his neck. She
reported that the plaintiff felt an increase in symptoms from sustained sitting
and stooping, but that he showed a tolerance for exertion of low to upper range
of heavy physical strength, very good core strength and aerobic fitness, no
limitation in standing, walking, crawling, kneeling, crouching, managing
stairs, balancing, reaching, gripping and most importantly; he was able to
carry a medium load of 50 lbs on a frequent basis which placed his ability
to work in the Heavy category of occupations.

[25]        
In my view, the plaintiff’s prognosis is more optimistic than either Dr. Miki
or he would admit. Although 2½ years have passed since the accident and the
plaintiff still complains about neck pain, back pain and limited range of motion,
I am not satisfied, on a balance of probabilities, that these subjective
complaints are sufficiently supported by any objective evidence of continuing
injury. Simply put, he has not established that his ongoing complaints are
serious enough to debilitate or impair him in any way.

IV.           
causation

[26]        
Regardless of the plaintiff’s degenerative condition at the time of the
accident, I find there is no doubt that the plaintiff received
musculo-ligamentous injuries from the accident which were moderately severe.

[27]        
There is also an issue whether the plaintiff’s symptoms of which he has
complained since the accident and of which he continues to complain, were
caused by these soft tissue injuries sustained in the accident, or an
activation or aggravation of the plaintiff’s pre-existing spinal condition, or
a combination of both. Dr. Miki diagnosed the pre-existing condition as
D.I.S.H. and said it was “possible” that the trauma of the accident increased
the deterioration of this condition. Dr. Richardson described the
pre-existing condition as suspected degenerative facet joint changes in his
lumbar spine and said it was “probable” that the plaintiff’s middle and upper
back symptoms were due to a soft tissue injury activating or aggravating this
pre-existing condition. Dr. Werry opines that it is “unlikely” that the
pre-existing spinal change noted in the neck and back of the plaintiff was
responsible for the plaintiff’s symptoms.

[28]        
Neither Dr. Richardson nor Dr. Werry were called to testify.
Their qualifications and reports are of equal weight, and their opinions with
respect to the plaintiff’s pre-existing condition cancel each other out.
Dr. Miki speaks in terms of possibility, not probability. He is not a
specialist in the area, and admitted to gaining his information about D.I.S.H.
from a Wikipedia article. In any event, the D.I.S.H. condition is located in
the plaintiff’s back, not his neck, which is the area of his lingering current
complaint.

[29]        
In my view, the plaintiff has not proved on a balance of probabilities
that he suffered any aggravation or acceleration of a pre-existing condition
from the accident. This is not a case that invokes the thin skull rule or
crumbling skull rule discussed in Athey v. Leonati, [1996] 3 S.C.R. 458.

[30]        
Similarly, the evidence falls short of establishing a connection between
his pre-existing condition and the plaintiff’s ongoing symptoms of neck pain
and decreased range of motion. I tend to agree with plaintiff’s counsel that
the plaintiff’s pre-existing degenerative condition was a “red herring” at
trial.

[31]        
In summary, I find that the only injuries that have been proved to have
been caused by the accident were soft tissue injuries to the plaintiff’s
cervical, thoracic and lumbar spine. I further find that the plaintiff’s
current complaints are the result of myofascial pain arising from muscles and
connective tissues that were injured in the accident, not from any pre-existing
degenerative condition.

V.             
NON-PECUNIARY DAMAGES

[32]        
Prior to the accident, the plaintiff was in good health and led an
active life. He was a long time gym member and had installed gym equipment in
his home. He golfed and cycled regularly. He had a talent for woodworking and
enjoyed doing home renovations. He enjoyed travel that involved hiking and
physical activity.

[33]        
He was newly married and he and his wife maintained their prior homes.
He lived an independent lifestyle.

[34]        
After the accident, the plaintiff’s physical activity was significantly
curtailed for the first six months and some time thereafter. His wife described
how he was agitated, frustrated and slow moving. He had difficulty sleeping and
she had to help him dress for months. When he returned to work in July 2012, he
complained of pain and exhaustion. He would come home and lie down. She
testified that his sleep and mood have improved since he changed jobs, but he
has not returned to renovations or his prior physical activities to the same
degree as before the accident.

[35]        
The plaintiff’s sister described the renovations that the plaintiff did
for her before the accident and how, after the accident, he could not even
change her blinds without experiencing neck pain. Their family get-togethers
were not as frequent because the plaintiff used to do the cooking and wanted to
do it less now. She described a mood change in the plaintiff since the
accident.

[36]        
The plaintiff’s father testified to the number of renovations that the
plaintiff had performed over the years. He said that before the accident the
plaintiff had always been in a good mood without physical complaints, but after
the accident he had numerous complaints.

[37]        
I am satisfied that the plaintiff incurred a moderate to severe whiplash
in the accident and that he has suffered pain and a loss of enjoyment of life
as a result thereof, but I am not satisfied that his discomfort will continue
indefinitely into the future. I am satisfied that the plaintiff has no
permanent physical or emotional impairment, and that his relationships or
lifestyle have not been permanently impaired.

[38]        
Plaintiff’s counsel submitted that the appropriate range of
non-pecuniary damages is between $85,000 and $95,000. He relies on Bulpitt
v. Muirhead, 2014 BCSC 678; Shipley v. Bye, 2014 BCSC 201; and Neumann
v. Eskoy, 2010 BCSC 1275.

[39]        
In Neumann, the court found that the plaintiff suffered from
chronic pain syndrome which would present itself indefinitely, despite medical
treatment. He was awarded $90,000 non-pecuniary damages.

[40]        
In Shipley, the plaintiff was in his early 20s and suffered an
L4-5 discogenic injury and an aggravation of a previously asymptomatic
congenital dysplastic L3-4 facet joint from the accident. He was an aggressive
athlete who had undergone extensive physiotherapy and cortisone injections, but
was still left with residual lower back pain and the inability to perform heavy
physical tasks or engage in risky sports activities. He was awarded $85,000.

[41]        
In Bulpitt, the 46-year-old firefighter plaintiff continued to
have pain and limited upper body movement. His tolerance for sitting, lifting,
climbing and repetitive arm movements was limited. There was a possibility that
his pain and restrictions would increase in the future. He was awarded $85,000
for non-pecuniary damages.

[42]        
I find that the plaintiff’s situation in the case at bar is not as
serious as any of the plaintiffs in Neuman, Shipley or Bulpitt.

[43]        
Defence counsel submits that the appropriate range of non-pecuniary
damages is $40,000 to $50,000. She relies on Maltese v. Pratap, 2014
BCSC 18; Rozendaal v. Landingin, 2013 BCSC 24, and Helgason v. Bosa,
2010 BCSC 1756. In Rozendaal, the plaintiff was rear-ended in two
accidents and suffered soft tissue injuries to her neck and shoulder in both.
She missed no work other than for medical appointments, she stopped attending
physiotherapy, and she visited her doctor infrequently. She was awarded $40,000
non-pecuniary damages.

[44]        
Helgason is a 2010 decision wherein the court found that the
plaintiff suffered moderate soft tissue injuries with ongoing neck and shoulder
pain and anxiety from the accident, but not as severe as she described. Her
family doctor opined that she had not yet reached maximum medical improvement
and would continue to improve. She was awarded $60,000 non-pecuniary damages.

[45]        
The plaintiff in Maltese had a lot of similarities to the
plaintiff in the case at bar. He was 44 at the time of the accident and active
recreationally. He missed seven months’ work due to soft tissue injuries,
headaches and other symptoms of abdominal pain and short term memory loss. At
trial he continued to experience pain and discomfort in his neck and lower
back. He was physically unable to perform his past duties at work and had to switch
to a sales position with the same company. He was awarded $40,000 non-pecuniary
damages.

[46]        
I find that the plaintiff’s situation is closer to those of the
plaintiffs in the above cases cited by defence. In my view, an award of $60,000
is fair compensation for the plaintiff’s non-pecuniary losses.

VI.           
past income loss

[47]        
The plaintiff claims the total sum of $75,655 as the net earnings he
lost during his two periods of absence from work in 2012 and 2013, and from the
decrease in income after changing in January 2014 to his current position in
the shipping department.

[48]        
The defendants take no issue with respect to the plaintiff’s net loss of
earnings during his first period of absence from work in 2012 in the amount of
$33,379. However, the defendants argue that the second period of absence,
between January 15, 2013 and June 3, 2013, was neither necessary nor
reasonable, but rather the result of a unilateral and arbitrary decision by the
plaintiff.

[49]        
I agree that the plaintiff’s choice to simply not work at all between
January 15, 2013 and June 3, 2013, appears to be a unilateral and
personal choice and not one made because his injuries from the accident
rendered him functionally unable to do any work. He never sought any medical
advice about whether he should leave his job or change his job. He performed
his regular duties full time in the prior six months between July 2012 and
January 2013, and only mentioned difficulty working to Dr. Miki on one
occasion in November 2012.

[50]        
Dr. Miki never made any medical recommendation that the plaintiff take
more time off work. Dr. Miki was never asked for his advice by the
plaintiff. The plaintiff’s employer never recommended he take time off; and there
was no evidence about any complaint of the employer about the plaintiff’s work
up to January 2013. There was no evidence that the plaintiff sought lighter
duties or accommodation from his employer, or that this would not have been
available to him. Mr. Service, human resources manager, testified that
Kruger Paper does have an accommodation process for employees with physical
limitations, but the plaintiff never asked for accommodation.

[51]        
The plaintiff did not seek medical treatment, nor did he take any prescribed
medication during the second period of absence. He did not do his home exercise
program. He did not do a Back in Motion rehabilitation program (despite saying
he did under oath at trial), and in fact declined the recommendation of Back in
Motion to do further rehabilitation, which Dr. Miki agreed on
cross-examination would have been beneficial to the plaintiff. He did not lose
weight, which Dr. Werry reported was key to improving his symptoms.

[52]        
In my view, the plaintiff has clearly failed to mitigate his loss of
income during the period between January 15, 2013 and June 3, 2013, by failing
to seek out or attempt less demanding work, and by failing to use reasonable
efforts to rehabilitate during this time period. His claim of $34,689 for loss
of income between January 15, 2013 and June 3, 2013, should be
discounted by 40% for failure to mitigate.

[53]        
Finally, there is the amount of $7,588 claimed by the plaintiff for wage
loss from January 2014 to the date of trial, due to the plaintiff’s change
in job position.

[54]        
I agree with the defendants that the plaintiff has not established on a
balance of probabilities that it was his injuries from the accident that caused
him to change his job position resulting in a loss of income to him. As a past
event, the onus is on the plaintiff to prove on a balance of probabilities that
his job change was caused by an inability to continue working as a mill hand
due to his injuries, and not some other reason. The overwhelming evidence is
that the plaintiff likely changed his job position from mill hand to the less
lucrative one of shipper in the warehouse for the following reasons:

1)    Kruger Paper
Mill announced a significant restructuring in March 2012, which restructuring
took place in September 2012. Four paper machines were reduced down to two. One
hundred eighty-seven people were laid off. The plaintiff lost his regular
posting as third hand and was relegated to the spare board where he was at risk
of only working as a machine hand when a posted machine hand was not available.
He was still on the spare board at the time he took his second extended absence
from work. The plaintiff testified that while he was on the spare board he
still worked as a third hand as much as before, but Mr. Service testified
that generally being on the spare board means decreased access to the higher
paying positions of third and fourth hand.

2)    Mr. Service
testified that since the restructuring, the shipping department has been the
one of choice. Mr. Mattis, fellow employee of the plaintiff, was of roughly
the same age as the plaintiff and ahead of him in seniority by six or seven
places. Mr. Mattis testified that he was next in line for a posting as a
machine tender, but he transferred to shipping at the same time as the
plaintiff did because of the better working conditions. He said the work in the
shipping department was cleaner, with less exposure to dust and chemicals, and
required less physical output. The warehouse is brand new and he did not have
to work outdoors. Mr. Service testified that there was a big difference in
the environment between the mill and the shipping warehouse. He corroborated
Mr. Mattis that the mill was dustier, wetter and more humid. The machines
set the pace of work. The warehouse was primarily indoor work and the pace of
work was not controlled by others. It was primarily forklift work in the
warehouse. In addition, the shipping department was not subject to periods of
layoff that occurred when the mill shut down due to excess inventory.
Mr. Service also explained that the warehouse had a preferable social
environment, complete with badminton courts and barbeques.

3)    The plaintiff
returned to work on June 3, 2013, after his second period of absence. He
worked at the mill for seven months before he transferred to the warehouse. During
these seven months, the plaintiff completed his full duties, and did not ask
for an accommodation or lighter duties. Neither Mr. Mattis nor
Mr. Vernon, his co-workers who both testified at trial, said anything
about the plaintiff having difficulty working or exhibiting symptoms or needing
assistance during his time at the mill before he went off to the warehouse. There
were no complaints from the employer about the plaintiff’s ability to do his
job.

4)    Before making
the decision to transfer to the warehouse, the plaintiff did not seek the
advice of his medical advisors or his employer. Neither of those bodies
recommended he change his position. He received no medical treatment for his
injuries between June 2013 and January 2014, nor sought any medication for
them. He saw Dr. Miki on December 13, 2013, but never discussed
changing jobs with him. Once again, the decision of the plaintiff to change his
work environment and job duties appears to have been a unilateral, personal
decision.

5)    The defendant
argues that another reason the plaintiff took the lower paying position at the
warehouse was because his wife received a coincidental raise in income
approximately equal to the decrease in the plaintiff’s income. While it appears
that the timing of his wife’s raise coincides exactly with the voluntary
transfer of the plaintiff to the warehouse, this is only one more factor to
take into account.

6)    None of the
medical witnesses opined that the plaintiff was not capable of performing his
job duties. They all refer to it in terms of “his tolerance.” Even Ms. Craig,
the functional capacity evaluator, said he met the heavy strength requirements
of employment. Due to my concerns about the plaintiff’s credibility, I cannot
accept his word alone that his injuries rendered him incapable of continuing to
work at the mill. As the late Chief Justice McEachern said in both Price v.
Kostryba (1982), 70 B.C.L.R. 2d 397 (S.C.) at paras. 6-7, and Butler
v. Blaylock, [1981] B.C.J. No. 31 (B.C.S.C.) at paras. 18-19:

…the court should be exceedingly
careful when there is little or no objective evidence of continuing injury and
when complaints of pain persist for long periods extending beyond the normal or
usual recovery.

An injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer. But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence – which could be just his own evidence if the surrounding
circumstances are consistent – that his complaints of pain are true reflections
of a continuing injury.

[55]        
For the reasons given earlier and above, I do not find that the
plaintiff’s subjective complaints of pain are consistent with the evidence he
gave at trial, or his conduct during the time in question. Therefore, I am not
prepared to award him any compensation for losses arising out of his decision
to change his job position.

[56]        
The plaintiff is entitled to the full sum of $33,379 for the first
period of wage loss between December 24, 2011 and July 13, 2012. He
is entitled to the discounted sum of $20,813.40 for the second period of wage
loss between January 15, 2013 and June 3, 2013. He is not entitled to
any loss arising from his transfer to the warehouse.

VII.          
Loss of income in the future

[57]        
The plaintiff submits that he was on a clear path to promotion at Kruger
Paper and would have eventually attained the higher paying positions of machine
tender on machine 3, and subsequently on machine 4. The plaintiff
submits that I should apply the earnings approach to calculate the plaintiff’s
loss of future earning capacity. He presents a calculation to show that the
present value of his loss is about $319,000, and $30,000 for loss of pension
contribution. Alternatively, he submits that I could award him three years of
the plaintiff’s annual income of $83,000 per annum.

[58]        
Defendants’ counsel submitted a plethora of reasons why an award of this
magnitude was not supported by the evidence. While I do not agree with all the
reasons submitted by the defendants, I agree that the plaintiff has not
established a real and substantial possibility that he will incur a future loss
of income arising from the motor vehicle accident. Perren v. Lalari,
2010 BCCA 140, stands for the proposition that if an award is to be made for a
future loss of earning capacity, a plaintiff must always prove that there is a
real and substantial possibility of a future event leading to an income loss.

[59]        
As I have stated earlier, I do not accept that the change of the
plaintiff’s job position was due to his injuries, or that he was incapable of
performing the duties of a millhand or machine tender.  The National Occupational
Classification (“N.O.C.”) for paper makers is “light”, although the evidence of
the plaintiff and his co-workers, which I accept, was that sometimes the role
of machine hand was physically demanding and required heavy lifting. However,
Ms. Craig found that the plaintiff was capable of occasional heavy lifting
up to 80 or 90 pounds, and frequent medium lifting up to 40 pounds.
She explained that because the plaintiff was capable of frequent medium weight
lifting, he would be classified as capable of jobs in the Heavy work category,
but not the Very Heavy category of the N.O.C. There was no evidence to suggest
that there was a real and substantial possibility of the plaintiff ever needing
to seek, or seeking, work in the Very Heavy category of jobs. In my view, given
the availability of the new, attractive, warehouse position and the potential
effect of the mill restructuring, together with all the other reasons cited earlier
in para. 54, the plaintiff would have secured a position in the warehouse
regardless of the motor vehicle accident.

[60]        
I make no award to the plaintiff for future loss of earnings.

VIII.        
future care

[61]        
The two orthopaedic experts, Drs. Werry and Richardson, state that
there is no benefit to chiropractic or massage therapy for the plaintiff. They
both recommend a home exercise program, which the plaintiff had already been prescribed
by Back in Motion. The plaintiff testified that he already has a home gym and a
long standing membership to a fitness club. Ms. Craig concluded that the
plaintiff is able to take care of his own home care. There was no evidence that
he had to hire anyone to perform tasks that he was incapable of doing. He was
not intending on doing any further renovations to his property, because it is
likely to be sold as a development property. My impression from the plaintiff
was that working around the home was more of an enjoyable hobby than a means by
which to conserve income. Therefore any loss related to this is more properly
the subject of non-pecuniary damages, and I have taken this into account in my
award to the plaintiff of $60,000 for non-pecuniary damages.

IX.           
special damages

[62]        
The parties have agreed to special damages at $1,997.73.

X.             
conclusion

[63]        
I make the following award to the plaintiff for compensation for losses
suffered as a result of his injuries in the motor vehicle accident:

[64]        
Subject to the Rules of Court, the plaintiff is entitled to costs
on a party/party basis.

“Kloegman
J.”