IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20141009

Docket: M121790

Registry:
Vancouver

Between:

Kelly Patrick
Crane

Plaintiff

And:

Matthew Andrecito
Balmforth, Estate of Francis E. McCracken, Rupinder Ali, and Teresa Jeannette
Woodward

Defendants

Before: The Honourable Mr. Justice
D.M. Masuhara

Reasons for Judgment

Introduction

[1]            
This action arises from a motor vehicle accident that occurred on March 29,
2010 on Highway 99 in Delta, B.C. (the “Accident”).  The plaintiff stopped
his vehicle suddenly due to an accident in front of him and was subsequently
rear ended and pushed into the vehicle in front of him.  The collision was of
significant force as evidenced by the substantial damage to the rear of the
plaintiff’s vehicle.  He was transported by ambulance to Peace Arch Hospital. 
He was found with no acute fractures or injuries and released.  The plaintiff
asserts that he suffered soft tissue injury to his mid- and upper back, to his
neck, and suffers on a continuing basis pain from these injuries including
headaches.

[2]            
The plaintiff’s claims are for general damages, past wage loss, and loss
of earning capacity.  He does not seek special damages or damages for future
cost of care.

[3]            
At the start of trial, liability was admitted by the defendant
Balmforth.

[4]            
The issues at trial relate to whether the Accident was the cause of the
plaintiff’s injuries and the assessment of damages to which the plaintiff is
entitled.

[5]            
Witnesses in the plaintiff’s case were:  Mr. Crane, the plaintiff; Dr. Simkus,
the plaintiff’s family physician; Mr. Schur, a long-time friend of the
plaintiff; Ms. Brailean, the plaintiff’s mother; Ms. Nickel, a family
friend; Dr. H.F. Shane, psychiatrist who provided an expert opinion (he is
not related to plaintiff’s counsel); and Dr. T. Giantomaso, physiatrist
who provided an expert opinion.  At the start of trial, plaintiff’s counsel
indicated that a witness from Home Depot (the plaintiff’s last employer) was
contemplated.  However, at the end of the plaintiff’s case, counsel advised
that no one from Home Depot would be called.

[6]            
Witnesses in the defendant’s case were: Dr. C. Robertson,
psychiatrist who provided an expert opinion; and Dr. K.J. Favero,
orthopedic surgeon who provided an expert opinion.

Background

[7]            
The plaintiff is 47 years old.  He is single, has never married, has no
children and lives in his mother’s home.

[8]            
From a young age he was involved in many activities, including baseball,
skiing, snowboarding, BMX cycling, skateboarding and motorcycling.  He was a
sponsored BMX contestant for many years.  His participation in these activities
led to many injuries.  He has suffered 33 fractures and 5 broken ankles.  Mr. Crane
testified that he had three skull fractures and several concussions.  He has
had ongoing chronic pain issues with his ankles and knees.  He also suffered a
fractured sternum in 1984 while riding his motorcycle in a wooded area.  His
tire struck some tree roots and he was dislodged from his motorcycle and struck
a tree with his chest.  At some later point he fractured his sternum again
while wrestling with his mother’s boyfriend, who in the process fell on his
chest.

[9]            
He also is deaf in one ear due to a childhood illness.  He has had a
long history of anxiety and mood issues.  He was diagnosed with ADHD during his
childhood and has had medications for this condition as an adult.  The
plaintiff has had an opioid addiction for many years.  An extensive complex medical
history of the plaintiff was provided at trial.  The medical record indicates
several other medical problems which need not be itemized.

[10]        
In terms of the plaintiff’s work history, his counsel described it as sporadic. 
After graduating from high school at the age of 17 years he went to work for
White Spot first as a sandwich maker and later as a griller.  He worked there
for about three years.  He then worked part time at Kmart for about a year.  He
then worked in construction for about 10 years.  He also worked in an antique
store.  Around the age of 28 he enrolled at Douglas College and took sociology,
political science and kinesiology courses but lost interest.  He subsequently
found work as a baggage handler for Hudson General and was employed there from
1997 to about 2000.  There he had work-related back injuries and had to take
time off and filed Workers Compensation claims.

[11]        
Dr. Giantomaso in his review stated that “[t]here is significant
documentation from Dr. Robson (the plaintiff’s family physician)
indicating that as early as the mid-1990s Mr. Crane was being seen for
chronic anxiety and chronic pain issues, predominantly chronic ankle, knee and
wrist pain”.

[12]        
In the late 1990’s or early 2000’s, Mr. Crane was prescribed
medication, including Ritalin, for Attention Deficit Disorder and
Hyperactivity.  His mother testified that he was diagnosed with the disorder in
grade school.  Mr. Crane seemed to think he was diagnosed with this in his
adulthood.

[13]        
His medical records indicated that he has been prescribed opioid
painkillers since 1999.  They include Demerol and OxyContin for pain in ankles;
anti-depressants; and benzodiazepine anti-anxiety medications.  He continued to
request and was provided these medications.  In 2005, Mr. Crane was placed
on methadone by Dr. Chan.  This carried on through 2010.

[14]        
In October 2002, Mr. Crane fell while riding his BMX bike in a
concrete bowl at a skateboard park in Surrey.  He was 35 years old at the
time.  He fractured his right clavicle, right scapula, and suffered sprains to
his right hip, lower back and groin.  Mr. Crane sued the City of Surrey. 
The bowl had been recently painted by the City.  Mr. Crane alleged his
fall was caused by the wet paint.  I presided over the trial and dismissed the
claim on the basis that liability on the part of the City had not been
established.  My Reasons are indexed at 2008 BCSC 274.

[15]        
Around 2003, Mr. Crane enrolled in a massage therapy program.  He
stated that he completed two semesters but failed the third.  He stated this failure
was due to not being able to cope with problems in his family, the passing of
his grandfather, and being over medicated by his family physician.

[16]        
In 2003, Mr. Crane was admitted to Edgewood Treatment Centre for
two months.  The materials indicate that this was because of excessive alcohol
dependence or abuse of opiates and benzodiazepines.  Mr. Crane was
diagnosed with alcohol dependence in 2003.

[17]        
In the mid-2000’s Mr. Crane worked as a labourer as a member of the
boilermaker union and was sent on various jobs out of the union hall.  He was
fired from a job in April 2006 and was fired from a subsequent job in
October 2006.

[18]        
Mr. Crane has had numerous work-related back injuries, several
relating to his back, in which he made Workers’ Compensation claims, i.e. 2003,
2004, 2007, and 2008.  He also had reconstructive surgery on his right ankle in
the late 1990’s or early 2000’s.

[19]        
In 2007 he was hired as a sales associate at Home Depot but missed
substantial blocks of time from work due to stress and anxiety; and pain issues
with his knees and ankles.  His job required him to be standing or walking for
most of a shift.  The income he earned from Home Depot for the years he worked
was as follows:

[20]        
In December 2009, Mr. Crane had surgery performed on his right
ankle to remove a loose piece of tissue from an earlier performed
reconstruction.  He took time off work as a result.  It was during this time
off work that the Accident occurred.

[21]        
Prior to the Accident, Mr. Crane stated that he had formed the
intention to enroll again at the same massage therapy school he had dropped out
of in 2004.  He stated that he was planning to start in the fall of 2010 to
study to become a physiotherapy assistant.  His plan was to take out a Canada
Student Loan to fund his education.  I was advised by counsel that no claim is
advanced regarding the inability to become a physiotherapy assistant.

[22]        
Socially, prior to the Accident, Mr. Crane regularly engaged in
various physical activities such as cycling and playing his drums, went to
concerts, and had an active social life.

[23]        
Mr. Crane attempted a return to work at Home Depot sometime in 2010
but was unsuccessful.  He tried again in early 2011 on a graduated basis;
initially at four hours a day, three times per week and then at six hours a
day, three times a week.  Mr. Crane stated that the pain in his mid- and
upper back, neck and headaches was too great.  He tried a short return to work
in 2012 but his pain was as before and he could not continue.  He stated that
he could not cope physically or mentally.  A further return to work was
attempted in 2013 with the same lack of success.

[24]        
Following the Accident, the plaintiff was involved in several other
accidents.

[25]        
In August 2010, the plaintiff was involved in a single-vehicle
accident.  He lost control of his vehicle, crossed the median of Highway 99,
spun, hit a ditch and came to a rest (the “August 2010 Accident”).  There
was heavy damage to the right front corner of his car as well as the left rear
corner, and the rear window was shattered.  Apparently, his loss of control was
due to low blood sugar.  He was not working at the time.  The plaintiff told Dr. Giantomaso
that the left side of his head struck the interior of the car in the accident. 
The plaintiff also said that his headaches increased significantly and the increase
in headaches was the main reason he was not able to return to work.  At trial, Mr. Crane
confirmed that his report to Dr. Giantomaso was true.  Mr. Crane also
confirmed that he was receiving disability benefits from Manulife at the time
of the August 2010 Accident.  He confirmed that he telephoned Manulife on
September 8, 2010 and told the claims representative that in the August 2010
Accident that he “reinjured his back badly” and was lucky to have survived.  He
stated at trial that this statement was true.

[26]        
He also confirmed that he told Manulife, in a form entitled Report of
Accident – BC Resident dated September 13, 2010, that he was knocked
unconscious during the August 2010 Accident.  He confirmed at trial that
at the time he made the report that he believed that he had been knocked
unconscious but was did not recall this at trial.  At trial, he stated that he
believed that he had passed out.

[27]        
In late 2010, his family physician of many years, Dr. Robson
retired.  He went to one or two doctors and then found Dr. Simkus who
agreed to take him on as a patient and has been his family physician since
December 2011.  Dr. Simkus related his treatment of the plaintiff
since.  It included gabapentin for neuropathic pain, Cymbalta for depression,
diazepam for anxiety, Propranolol for anxiety, Delatestryl for low testosterone
and low libido and Marcaine injections for back pain.

[28]        
On February 24, 2011, Mr. Crane told his therapist at Back in
Motion that in the August 2010 Accident he injured his ankles, mid back,
and neck.  Further, he confirmed that he had stated to the therapist that he been
almost ready to return to work, when the August 2010 Accident occurred. 
At trial he confirmed that he made this statement and that it was true.

[29]        
In May 2011 while riding his bike, he was cut off by a larger
vehicle and fell off his bike.  He was wearing a helmet which protected his
head as his head hit the concrete curb.  He stated that his right side was sore
including his right shoulder as well as his head from the fall.  He stated that
the injuries aggravated his pain but it only lasted a couple of weeks.

[30]        
From June 2011 to September 2012, Mr. Crane was in a
methadone treatment program with Dr. Miremadi.  It appears that Mr. Crane
was terminated from the program.

[31]        
In late 2012 to early February 2013, Mr. Crane’s disability
benefits from Manulife were cut off.

[32]        
In February 2013, that same month he fell down some stairs and
wrenched his neck.

[33]        
On April 10, 2013, the car in which the plaintiff was travelling as
a passenger, was involved in an accident (the “April 2013 Accident”).  His
girlfriend was the driver.  The car was hit on the front driver’s side.  The
next day he attended a physician complaining of upper, mid, and lower back
pain, jaw pain, neck pain, left knee pain, headache, upper right shoulder pain.

[34]        
Mr. Crane was also involved in a motor vehicle accident where he
rear-ended a car.  The specific date is unknown though it most likely was in
2013.

[35]        
For a period of approximately six weeks from mid-September 2013, Mr. Crane
had an extreme anxiety culminating in a visit to the Emergency department of
Peace Arch Hospital.  The medical report indicates Mr. Crane’s anxiety
seemed to be focused on his concerns of a flea infestation in his apartment,
despite his unit having been fumigated four times.

[36]        
In late 2013, Mr. Crane was given injections of Marcaine, Xylocaine
and cortisone which provided relief to his trapezius area and neck and
headaches.  However, the plaintiff testified that the relief lasted only for
four to six hours.

[37]        
In December 2013, he was involved in a physical fight with his
brother.  He was punched in the head several times and told Dr. Simkus that
his neck was very sore and was having more headaches.  There appear to be other
earlier incidents of fights between the plaintiff and his brother.

[38]        
Recently, Mr. Crane has taken up tai chi and yoga.  He has also
taken up an interest in Taoism.

[39]        
Mr. Crane testified that the injuries from the Accident have
continued to cause him pain and suffering.  He stated that he has had to
curtail his activities such as cycling to a very low level, he has lost
interest in hobbies such as his drumming, has lost a desire to socialize, has
trouble sleeping, has headaches, and is unable to work.  While he has had
accidents subsequent to the Accident which caused him difficulties he testified
that they were only temporary and that he returned to his baseline.

Family and Friends

[40]        
Mr. Schur has known Mr. Crane for 17 years.  They first met
while working at Hudson General.  He now works for the Coast Guard.  The two
men were best friends and socialized regularly – not less than once every two
weeks.

[41]        
Mr. Schur stated that prior to the Accident, Mr. Crane was
outgoing, positive, and active.  The two would skateboard and cycle together
regularly.

[42]        
After the Accident, the first Mr. Schur saw Mr. Crane was in
July 2010 where the Schurs were hosting a barbecue party at their home.  Mr. Schur
described the odd behaviour of Mr. Crane asking to borrow money from
friends at the party, including Mr. Schur.  The frequency of get togethers
reduced to once or twice a month.  The visits also reduced significantly from
homes and overnights to just about an hour.

[43]        
Ms. Nickel has known Mr. Crane for about 16 years.  This has
been through his mother as the two are teachers and came to know each other
through teacher associations.  She would see Mr. Crane about once a
month.  After the Accident, she described a change in Mr. Crane as seeming
more frustrated, moody and less active.

[44]        
Ms. Brailean is the plaintiff’s mother.  Mr. Crane has been
living in her home since October 2009.  Prior to this, he had lived with
her in 2000.  She described the plaintiff as active, happy, cheerful, and
hardworking prior to the Accident.  She stated he helped her with chores around
the house including cleaning and cooking.  Following the Accident she described
the plaintiff as grumpy and reclusive.  He also lost interest in drumming.

Expert Medical Evidence

A.             
Dr. Shane

[45]        
Dr. Shane is a psychiatrist retained by the plaintiff.  He saw Mr. Crane
on June 20, 2013.  His report is dated July 4, 2013.  He revised his
report on August 17, 2013 regarding Mr. Crane’s recall of the April 2013
Accident.  A further addendum was provided dated August 27, 2013 regarding
that April 2013 accident.  In addition to the plaintiff’s many physical
injuries over the years, he noted the ongoing course of opiates, tranquilizers
and medication for ADHD and problems the plaintiff has had with these
medications over many years.

[46]        
Dr. Shane diagnosed Mr. Crane with various problems.  They
are:

(a)           
Severe Opioid Use Disorder, which in Dr. Shane’s opinion has had a
significant impact upon his physical, psychological and occupational
functioning;

(b)           
Moderate Psychological factors affecting other medical conditions;

(c)           
Chronic mild to moderate Attention Deficit Hyperactivity Disorder;

(d)           
Moderate Chronic Adjustment Disorder with Mixed Anxiety and Depressed
Mood; and

(e)           
Symptoms of personality disorder configurations such as narcissistic,
antisocial, borderline, paranoid personality disorders but no definitive
diagnosis.

[47]        
In terms of understanding and communications, Dr. Shane found that
the plaintiff had some impairment.  He stated:

He is unable to concentrate on
doing things for at least ten minutes as a rule.  At times this can be
impaired.  He remembers to do important things in general.  He is able to
analyze and find solutions to problems in his day to day life expect [sic] in
an occupational setting where this appears to be extreme and he cannot do it. 
As well, he has demonstrated impaired judgment by abusing medication which has
resulted in antisocial behaviour.  His ability to learn a new task is fairly
intact but at times it may be impaired.  He understands what people say
generally and he starts and maintains conversations.

[48]        
Dr. Shane reported that in terms of Mr. Crane’s functioning at
work that he is “severely impaired in terms of his being able to function in an
occupational sense”.  Dr. Shane further opined that “[Mr. Crane]
being able to work in a stable ongoing fashion is unpredictable as he had
periods of significant work instability related to drug problems and
interpersonal relationships resulting in significant absenteeism from work at
Home Depot previous to the accidents of 2010.

[49]        
Dr. Shane also reported that the plaintiff told him that the
August 2010 Accident exacerbated his previous physical problems and that
he found it difficult to do household tasks such as vacuuming and tasks
involving lifting and reaching.

[50]        
Dr. Shane spoke of the effects of both the Accident and the August 2010
Accident on the plaintiff but did not attribute any particular degree of
contribution to either accident.

[51]        
In terms of Post Traumatic Stress Disorder, Dr. Crane opined that “[a]ny
symptoms of PTSD are relatively mild and have not prevented him from continuing
to drive.  The negative emotional state that he experienced and any change in
his psychological adjustment could certainly not be attributed totally to his
accidents”.

[52]        
Dr. Shane, in an addendum to his report dated August 27, 2013
which follows a revision to his report dated August 17, 2013, noted that Mr. Crane
advised him during a further interview of August 25, 2013 that at the time
of the April 10, 2013 accident that:

He recalled they were driving on a very crowded highway. 
Suddenly he saw a car turning into the car in which he was a passenger.  He
yelled at his girlfriend to look out.  This was a terrifying moment for him. 
The other vehicle hit them on the driver’s side.  There were no airbags
deployed.  His neck moved in a whiplash fashion, back and forth.  He knows that
he was thrown around.  There was no loss of consciousness.  He felt quite in
shock.  He began to feel pain immediately in his back, between his shoulder
blades and neck.  He was able to extricate himself from the car and his
girlfriend also was able to extricate herself from the vehicle.  Information
was exchanged.  The car was ultimately was written off but they were able to
drive to his house.  He did not go to the doctor for some days.  Over the
ensuing four to six weeks he indicated he experienced an increasing level of
musculoskeletal pain, in particular his lower spine, between his shoulder
blades and neck.  After that period of time the pain returned to the baseline
which he has been experiencing previous to the accident subsequent to the
former accidents.

For some weeks he was not able to do a great deal of work
around his home such as doing the dishes, carrying out the garbage, etc.

His symptoms of the Post
Traumatic Stress Disorder were markedly accentuated.  He was able to begin to
drive his own car within a few days he said but he continued to experienced
anxiety, panicky feelings, fears, apprehension about being hit especially from
behind.  He had intrusive thoughts and ongoing flashbacks, hypervigilance and
was continuing to shoulder checking and generally was feeling very apprehensive
about driving.  Regardless he was able to return to driving as indicated and at
this point still continues to experience significant anxiety and symptoms of
the Post Traumatic Stress Disorder as noted when he drives.

[53]        
This above account is to be contrasted with what Dr. Shane reported
in his July 4, 2013 opinion.  In that regard he wrote:

Motor Vehicle Accident of
April 10, 2013

Mr. Crane indicated his car
was stationary at a stop sign.  Apparently the driver of the other vehicle
backed up and hit his car.  He indicated that there was minor damage to his
car.  His symptoms were mildly exacerbated and he returned to baseline within a
month.  He drove away on his own.  There was no particular symptoms of the Post
Traumatic Stress Disorder that evolved from this accident.

[54]        
The above accounts are to be compared to a further account of Mr. Crane’s
as reported by Dr. Shane in his August 17, 2013 report which reads as
follows:

Motor Vehicle Accident of
April 10, 2013

Mr. Crane indicated his
vehicle was stopped at a stop sign.  There was a car in front of him that had
previously stopped but then proceeded into the intersection.  Suddenly the car
in front of him reversed and rolled backwards in order to avoid a collision in
front of him.  This vehicle backed into the front end of his car.  In spite of
this the car in front of him was still hit.  He indicated he immediately felt
discomfort in his back and neck.  He had no loss of consciousness.  He did not
hit his head.  He was able to extricate himself from the vehicle.  He did not
go to the hospital.  The police ambulance arrived.  He was able to drive his
car away.  Subsequently he had an increase in his back pain, headaches and
insomnia for some weeks.  Ultimately this resolved and he returned to the
baseline level of pain and physical symptoms he had been experiencing before
this accident.  As well there was no significant issue regarding the
development of Post Traumatic Stress Disorder.

[55]        
I note Dr. Shane’s comments in prefacing the two revisions.  On
August 17 he wrote:

At your request I again reviewed
the details of the accident of April 10, 2013 with Mr. Crane.  After
speaking to Mr. Crane I have revised my original report regarding his
memory of the car accident of April 10, 2013.

[56]        
On August 27 he wrote:

I reviewed this matter again with
Mr. Crane at your request.  In your original view of my report you
indicated that the information he gave me about the April 10, 2013
accident was incorrect.  It appeared that Mr. Crane that he had been
confused in spite of my reviewing this on several occasions with him.

B.             
Dr. Giantomaso

[57]        
Dr. Giantomaso is a physiatrist.  He assessed Mr. Crane on
September 14, 2012.  He noted Mr. Crane’s complaints as constant pain
in the left mid-back; pain in the neck and cervical thoracic junction; and that
this neck pain is sometimes associated with headaches.  He noted that Mr. Crane
stated that he has a constant low grade or mild headache however, occasionally
experiences severe headaches with migraine-type features – once a week of on a
less frequent basis.  Aside from this Dr. Giantomaso found all other body
systems to be normal.

[58]        
Dr. Giantomaso opined that Mr. Crane’s chronic pain is
temporally related to the Accident, subsequently exacerbated by the August 2010
Accident.  He specifically opines under the heading of “Causation” that Mr. Crane’s
“injuries are directly related to the March 29, 2010 and subsequent August 10,
2010 motor vehicle collisions”.

[59]        
His report regarding causation is broken into three sections which read
as follows:

Diagnoses Likely Causally
related to the Motor Vehicle Collision of March 29, 2010:

1.     Cervical
sprain-strain injury consistent with WAD-II injury.  Chronic.

2.     Thoracic
sprain-strain injury grade 1 to 2.  Chronic.

3.     Posttraumatic
cervicogenic headaches.  Chronic.

Diagnoses Likely Causally
Related to the Motor Vehicle Collision of August 10, 2010:

1.     Exacerbation
of previously existing cervical WAD-II injury.  Ongoing.

2.     Exacerbation
of previously existing thoracic sprain-strain injury.  Ongoing

3.     Exacerbation
of previously existing cervicogenic headaches.  Ongoing.

4.     Mild
traumatic brain injury.  Likely concussion.  Recorded loss of consciousness and
decreased level of consciousness related to hypoglycemia.

Diagnoses Previously
Existing and Unrelated to the Motor Vehicle Collisions in Question:

1.     Anxiety
disorder.

2.     Opioid
dependence.

3.     Chronic pain
related to multiple orthopaedic injuries to the upper and lower extremities.

4.     Prior
history of hypoglycemia.

5.    
Previous history of lumbar spine pain with documentation of previous
Workers’ Compensation injury.

[60]        
Dr. Giantomaso’s prognosis was that the “vast majority of
improvements through natural history and rehabilitation would have occurred in
the first 6 months to 12 months post-injury”.  He opined that Mr. Crane
had met “maximal medical improvement and will have ongoing issues in the
future”.

[61]        
Dr. Giantomaso’s report was written in 2012 and as a result his
opinion did not reflect the April 2013 Accident or the other 2013 accident
in which Mr. Crane is said to have been involved.

C.             
Dr. Robertson

[62]        
Dr. Robertson is a psychiatrist.  He examined the plaintiff on
February 27, 2014.  His report is dated March 21, 2014.

[63]        
He stated that Mr. Crane’s primary diagnoses were opioid and
benzodiazepine use disorder.  The secondary diagnoses included Unspecified
Anxiety Disorder and an Unspecified Mood Disorder.

[64]        
In regard to the primary diagnoses he stated that:

These were present for years
prior to the subject motor vehicle accident.  They do not appear to have
worsened beyond what would have been expected in the absence of the accident
since the accident.  They may be slightly improved in the last few months

[65]        
In regard to the secondary diagnoses he stated:

These were present for years prior to the motor vehicle
accident.  I have left them unspecified primarily because there is likely a
major contribution from substance abuse and other factors to these disorders.

There appears to have been a brief worsening of his mood and
anxiety difficulties in the few months following the March, 2010 accident. 
This appears to have been caused in part by worsened physical pain following
this accident.  There may have been some contribution from PTSD symptoms as
well.  since that time, his mood and anxiety difficulties have returned to
their baseline, with expected fluctuations in the context of stressors.

***

Mr. Crane has likely had contributions from
psychological factors to his pain for many years.  This has continued following
the accident.  This would qualify him for a diagnosis of Psychological Factors
Affecting a General Medical condition.  Moderate.  There does not seem to be a
significant change in the severity of this condition following the accident.

***

Mr. Crane reports
difficulties with Posttraumatic Stress Disorder Symptoms since the accident.  I
do not think that diagnostic criteria for the Disorder itself are met but he
does have some symptoms that arose from the March 2010 Accident.

[66]        
He opined that he expected that Mr. Crane would continue to have
significant difficulties with substance use disorders, mood and anxiety
disorders, ADHD and psychological conditions to his physical pain, as he would
have in the absence of the accident.  His Post Traumatic Stress Disorder
symptoms appear to be improving but may not remit fully.  It was Dr. Robertson’s
view that Mr. Crane developed new PTSD symptoms as a result of the accident
and that there was a brief aggravation of mood and anxiety disorders following
the Accident, with a return to baseline by late 2010 to early 2011.

[67]        
Dr. Robertson was further of the view that the Mr. Crane’s
psychiatric condition or addiction issues will continue to impact his
vocational, social and interpersonal functioning.  He agreed with Dr. Shane’s
assessment that the plaintiff’s psychological and addiction difficulties
contribute significantly to difficulties in maintaining even medium term
employment and limit his ability to pursue educational advancement, as they did
prior to the accident; and that he would best be suited for less demanding work
with a supportive employer until such time as his addictions, attention, mood
and anxiety symptoms are under better control and have been for an extended
period of time.

[68]        
Mr. Crane did not tell Dr. Robertson of the Post Traumatic
Stress Disorder symptoms he suffered after the April 2013 Accident.

D.             
Dr. Favero

[69]        
Dr. Favero is an orthopedic surgeon.  He examined the plaintiff on
July 22, 2013.  His report is dated September 3, 2013.  He opined
that Mr. Crane suffered a moderate soft tissue injury to his neck and
upper back from the March 29, 2010 Accident.  He stated that symptoms from
such an injury would have significantly improved/resolved within the first 6-12
weeks post-accident and that Mr. Crane would have been expected to have
been capable of returning to work, had he been working, between 8 and 12 weeks
post-accident.  He found no significant objective orthopaedic reasons for Mr. Crane
to remain physically disabled from working as a sales associate at Home Depot.

[70]        
Dr. Favero opined that Mr. Crane’s ongoing musculoskeletal
complaints regarding his neck and back (upper and lower) are multifactorial in
causation, a combination of the following factors:

1.              
Mechanical neck/low back pain secondary to degenerative disc and facet joint
disease;

2.              
Nonspecific neck/low back pain;

3.              
Neck/upper back muscle discomfort secondary to deconditioning, anxiety,
poor pain-coping skills, etc.;

4.              
A significant pre-accident (e.g. March 29^th, 2009 MVA)
history of multiple accidents/orthopaedic trauma with neck and back injuries; and

5.              
Psychosocial issues (e.g. anxiety, multiple drug addictions, etc.).

[71]        
Dr. Favero also opined that psychosocial factors have likely
contributed to the subjective severity and reported duration of the plaintiff’s
musculoskeletal pain complaints.

[72]        
Dr. Favero determined that other than mild degenerative disc
disease in the lower cervical spine (C4 to C7) and the L5-S1 disc space in the
lumbar spine “there were no significant findings to suggest any trauma-related
changes or clinically significant disc herniations/protrusions” and that no
further investigations into Mr. Crane’s residual/recurrent neck and back
complaints were required.

[73]        
Dr. Favero recommends that Mr. Crane receive 8-12 sessions of
individualized exercise therapy under the guidance of a physiotherapist or
kinesiologist.  The goal would be for Mr. Crane to become self-sufficient
with his own exercise program.

[74]        
Dr. Favero was also of the view that the plaintiff would benefit
from some postural education and pain-coping strategies, as well as enrollment
in an addiction program given the plaintiff’s long list of narcotic/benzodiazepine
dependence and misuse.

[75]        
Dr. Favero concluded that Mr. Crane should not develop any
further orthopaedic problems as a result of the Accident.  His opinion was that
any future neck or low back pain that Mr. Crane might experience would have
occurred regardless of the Accident given the plaintiff’s pre-accident history
of episodic back pain, the evidence of degenerative disc and facet joint
disease affecting the cervical and lumbar spine, poor pain-coping skills, and
physical deconditioning.

[76]        
In terms of work, Dr. Favero was of the view that Mr. Crane
had a significant physical disability relating to his chronic ankle and knee
pain prior to the Accident that limited him from performing moderate/heavy
manual or labouring work.  Also, the chronic ankle problem would likely have
prevented him performing occupations that required prolonged standing, walking,
climbing, crouching or kneeling.  Dr. Favero opined, therefore, that even prior
to the March 29, 2010 Accident, based on the history provided by Mr. Crane’s
medical records, he was restricted in many vocational opportunities because of
his ankles.  The same would apply for Mr. Crane’s house/yard maintenance
and physical recreational activities.  In other words, Dr. Favero does not
believe that the Accident would likely have had any material effect on
rendering Mr. Crane any more physically disabled than he already was (or
purported to be).  Dr. Favero discounted the ankle surgery performed just
prior to the Accident would have resolved Mr. Crane’s chronic ankle pain
that he had complained of continuously for years.

[77]        
I note that Mr. Crane did not tell Dr. Favero of the
April 2013 Accident.

Discussion

[78]        
Mr. Crane’s credibility was an issue raised by the defendant’s
counsel.  Given the nature of the injuries claimed, this is a key aspect to the
plaintiff’s case.  I will address this matter first.

[79]        
Defence counsel identified several instances which served to reduce the
reliability of Mr. Crane’s evidence:

·                
The “confusion” surrounding the 2013 accidents which is evident
in the various versions Mr. Crane described to Dr. Shane; and the plaintiff’s
failure to disclose the April 2013 Accident to Dr. Favero;

·                
The plaintiff telling Dr. Giantomaso of only one
work-related back injury, which happened long ago during his employment as a
baggage handler, and failing to disclose the various other work-related back
injuries and episodes of back pain;

·                
The plaintiff’s evidence that he lied to Dr. Miremadi and
the methadone clinic about having used heroin on the day of his admission to
the program;

·                
The plaintiff’s admission that at one point he used another
person’s urine to hide the fact that he had used illicit morphine during the
methadone maintenance program;

·                
The plaintiff’s denial of pre-Accident knee pain, subsequently
proven by multiple entries in Dr. Robson’s records;

·                
The plaintiff’s self-serving statement in direct examination that
during the attempted return-to-work in 2011, he “stuck it out stoically”;

·                
The plaintiff’s attempt to get objectionable hearsay statements
into evidence through an answer in direct examination, despite his own counsel,
defendant’s counsel and the court instructing him not to (he continued speaking
while the court was instructing him not to give such evidence — this was in the
context of questions regarding a 2013 emergency room visit arising from a flea
infestation in the plaintiff’s home);

·                
The plaintiff’s internally inconsistent, entirely unsatisfactory
and obviously disingenuous attempt to explain away Dr. Shane’s report
regarding a shoplifting incident in which the plaintiff threatened a security
guard with a small knife (the defendants submit it was clear that the plaintiff
was making it up as he went along, trying to invent an explanation); and

·                
The plaintiff’s evidence that at the time of the Accident he was
days, or at most a couple of weeks, away from returning to work, when in fact
no return to work date had been set and he did not know how long he would be
off work due to the ankle surgery.

[80]        
In addition to the foregoing, Dr. Shane stated that, based on his
review of Mr. Crane’s circumstances, the plaintiff has a long pre and
post-Accident history of “doctor-shopping” (seeing multiple doctors in order to
get more drugs than his treaters intend) and telling obviously untrue tales to
get more drugs (e.g., repeated claims that his drugs were lost, stolen, flushed
down the toilet by someone, etc.).

[81]        
In my view, the above in total along with my own assessment of concerns
with Mr. Crane’s testimony serve to reduce the reliance that can be placed
on Crane’s testimony in respect to his injuries and their source.  It is
apparent that Mr. Crane has problems with recall; as well as, the evidence
demonstrates weaknesses with credibility.  This is significant because of the
nature of the injuries from the Accident that Mr. Crane has asserted and which
he says continue to impact his life.

[82]        
I now turn to the question of causation.

A.             
Causation

[83]        
Causation is established where the plaintiff proves that the defendant
caused or contributed to the defendant’s injury.  The test to be applied in
this case is the general “but for” test: Athey v. Leonati, [1996] 3 SCR
458, Clements v. Clements, 2012 SCC 32, Resurfice Corp. v. Hanke,
2007 SCC 7, and Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5.

[84]        
The defendants dispute that their negligence sufficiently caused any of Mr. Crane’s
injuries such that their actions attract liability.  This defence was not
strongly advanced.  In final argument the defendants wrote: “Clearly, the March 2010
Accident was significant and the Defendants recognize that the Plaintiff
suffered some injuries and pain as a result”.  Even the defendant’s medical
expert, Dr. Favero, attributed soft tissue injury to Mr. Crane’s neck
and upper back to the  Accident.  Similarly, the defendants’ psychiatric expert
attributed a worsening of the plaintiff’s mood and anxiety problems to the Accident.

[85]        
There seems to be a general consensus among the medical experts, then,
that the Accident did cause Mr. Crane injuries that he would not have
suffered but for the Accident.  This also accords with common sense given the
nature of the collision.

[86]        
I find that Mr. Crane suffered a cervical strain-sprain injury, a
thoracic sprain-strain injury, post-traumatic cervicogenic headaches and mild post-traumatic
stress as a result of the Accident.

[87]        
I find that the August 2010 Accident exacerbated all of these injuries
to be worse than they otherwise would have been.  The medical evidence reveals
that the Accident and August 2010 Accident had almost identical effects on
Mr. Crane.

[88]        
I also find that subsequent accidents further exacerbated his injuries. 
I also find that Mr. Crane’s contention that the events subsequent to the
Accident only briefly exacerbated his injuries and that he returned to a
baseline to be simply not credible.

[89]        
I find that the injuries from his Accident and the August 2010 Accident
are indivisible insofar as his upper back pain, neck pain and headaches are
concerned.

[90]        
It is beyond human ability to attribute with precision the degree of
injury and suffering caused by each accident, however, such a calculation is
required in order to award damages.  Based on the description of the Accident
and medical evidence, my conclusion is that 70% of the plaintiff’s suffering can
be attributed to the Accident.

[91]        
I find that, given Mr. Crane’s pre-existing vulnerabilities, the
effects from the Accident and August 2010 Accident would have persisted no
greater than two years which period fits within the submission of the
defendant.  I find this particularly taking into account Mr. Crane’s
statements to third parties that he has progressed considerably in his recovery
from the Accident, the opinion evidence of Dr. Favero regarding the mild
degeneration in Mr. Grant’s spine and recovery period from his
Accident-related injuries, and weaknesses in the plaintiff’s reliability and
credibility.  Symptoms extending beyond this period have not been
satisfactorily linked to the Accident.

[92]        
I now turn to quantum of damages.

Damages

[93]        
The function of tort damages is to restore a plaintiff back to his
original, pre-Accident position.  He is not to be compensated in a manner which
would put him a better position than he would have been but for the defendants’
tortious conduct.  This latter principle is significant in this case given the
plaintiff’s complex pre-existing conditions as well as his post-Accident
accidents.  In assessing damages, it is the Court’s task to sort through Mr. Crane’s
various physical complaints and attribute as best as possible the degree of
suffering that is directly attributable to the Accident.  In doing so, the
Court must also take into account vulnerabilities in Mr. Crane’s original
position that may have made the effects of the Accident worse for him: Athey
at para. 35.

[94]        
Mr. Crane has suffered many injuries in his life.  He is also has
chronic disorders and addictions pre-dating the Accident.  It is not disputed
that as a result of his various pre-Accident conditions as outlined above, Mr. Crane
was a more vulnerable individual than the average.  His anxiety disorder no
doubt would cause his experience of pain to be greater than the average person. 
He also had subsequent accidents from which he suffered injuries.  All of these
factors must be taken into account in assessing damages.

[95]        
It is largely agreed, and I have found, that Mr. Crane suffered a
moderate soft tissue injury to his upper back and neck and mild traumatic brain
injury as a result of the Accident.

[96]        
As is common with soft-tissue injuries, there is no objective evidence
of this injury.  There is only Mr. Crane’s subjective description of the
pain he suffers.  Dr. Favero opined that the plaintiff would have been
expected to have recovered from the injuries suffered from the Accident and
returned to work all within 8 to 12 weeks of the Accident.  Mr. Crane
asserts that his pain is ongoing.

[97]        
In circumstances such as this where there is little to no objective
evidence of continuing injury, the courts are to be “exceedingly careful” when
complaints of pain persist for long period extending beyond the normal or usual
recovery.  There must be evidence of a convincing nature to overcome the
improbability that pain will continue, in the absence of objective symptoms: Maslen
v. Rubenstein, [1993] B.C.J. No. 1813 (C.A.) at para. 16.  I
alluded to this earlier in my discussion regarding reservations as to the
plaintiff’s reliability.

A.             
Non-Pecuniary Damages

[98]        
The non-exhaustive listing of factors in assessing general damages is
set out in Stapley v. Hejslet, 2006 BCCA 34 at para. 46.

(a)           
age of the plaintiff;

(b)           
nature of the injury;

(c)           
severity and duration of pain;

(d)           
disability;

(e)           
emotional suffering;

(f)             
loss or impairment of life;

(g)           
impairment of family, marital and social relationships;

(h)           
impairment of physical and mental abilities;

(i)             
loss of lifestyle; and

(j)             
the plaintiff’s stoicism (as a factor that should not, generally
speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163
(QL), 2005 BCCA 54).

[99]        
In terms of quantum for non-pecuniary damages, the plaintiff referred to
the following cases: Gosal v. Singh, 2009 BCSC 1471; Foran v.
Nguyen et al, 2006 BCSC 605; Harvey v. Yanko et al, 2007
BCSC 216; Pelkinen v. Unrau, 2008 BCSC 375; Kardum v.
Asadi-Moghadam, 2011 BCSC 1566; and Zawislak v. Karbovanec, 2012
BCSC 666.

[100]     The range
from these cases is $60,000 to $100,000 in non-pecuniary damages.  The
plaintiff submits in this case that the appropriate amount is $100,000.

[101]     The
defendants say that while the plaintiff should have recovered from the effects
of the Accident in approximately 12 weeks at the outside, the factors inherent
in the plaintiff’s original position could have slowed his recovery.  In
assuming this to be the case, the defendants say that a generous period of
recovery could be assumed to be one to two years.  For this period of time, the
defendants submit that the appropriate range of non-pecuniary damages $25,000
to $35,000.

[102]     The
defendants referred to the following cases: Kandag v. Di Vora, 2007
BCSC 717; Brown v. Raffan, 2013 BCSC 114; and Johal v.
Conron, 2013 BCSC 1924.

[103]     The
defendants also argue that consideration must be given to where the plaintiff
would have been absent the Accident.  They submit that given the multitude of
pre- and post-motor vehicle accident issues, that it is very likely — even a
near certainty — that the plaintiff would be where he is today, even if the
Accident had never happened.  Accordingly, they say, a percentage reduction of
60% to 70% is warranted.  The following cases were in support of a reduction: Randhawa
v. Hwang [2008] B.C.J. No. 630 (S.C.); and Sanders v. Janze
[2009] B.C.J. No. 1567 (S.C.).

[104]     The
following cases were cited in relation to the application of the 60% to 70%
reduction: MacAulay v. Field [2013] B.C.J. No. 1045 (S.C.); and Carreon-rivera
v. Zhang [2014] B.C.J. No. 736 (S.C.).

[105]     In my
view, the plaintiff’s cases under this head better approximate the plaintiff’s
injuries.  I am mindful that each case is determined by its own unique
circumstances.  In this case, I find Mr. Crane’s experience was more
intense and longer in duration given his various conditions.

[106]     The
injuries and their effects, warrant an award of non-pecuniary damages in the
amount of $90,000.

[107]     However,
as discussed above, I found as a fact that his injuries were indivisible
insofar as they relate to the Accident and the August 2010 Accident.  Accordingly,
in order to ensure that the defendants are only held liable for the damage they
caused, this amount must be reduced by 30%.  The net result under this head is an
award of $63,000.

B.             
Loss of Past Wages

[108]     The
plaintiff’s average earnings were $15,000/year or $1,250/month gross.  The
plaintiff submits that he would have been able to return to work full time at
the end of May, which is about two months following his family doctor’s note
written before the Accident concerning his recovery from ankle surgery.  The
plaintiff submits that for 2011 through 2013 the plaintiff would have earned
$15,000/year which is Mr. Crane working essentially working half time. 
Thus, to the date of trial it is submitted that the plaintiff’s past wage loss
would be $61,250 gross or approximately $52,000 net.

[109]     The
defendants submit that nominal damages should be awarded under this head
because of the uncertainty of the plaintiff’s return to work, i.e., the date of
the return and the success of the return; that Mr. Crane was intending to
quit his job in any event in the fall to go to massage therapy school; the fact
that his family physician was calling for a gradual return to work; as well as the
plaintiff’s original position and the intervening events.

[110]     Given my
finding as to the Accident related recovery period, his gross income based on
$15,000/year would be $27,500.  However, consideration of positive and negative
conditions is required in this case; as well as the indivisible injuries from subsequent
events.

[111]     The
plaintiff’s submission assumes that Mr. Crane would have suffered
absolutely no negative impact on his work from the continuing effects of his
ankle surgery, his chronic knee and ankle pain, his disorder, or any of the
negative effects of his subsequent accident in this period.

[112]     In my
view, it is unlikely that Mr. Crane would have been able to return to work
at the same level as he had prior to his surgery.  Mr. Crane was even
struggling to maintain his level of work attendance before his surgery and the
Accident.  I note that his family physician had advised him to find another job
because of the impact of his work requirements on his well-being.  Though I
find that he would have likely worked some shifts, it is more likely than not
his physical and mental condition would have led to him missing a substantial
amount of work and perhaps even leaving the workforce.  The medical evidence
supports this.  I also take into account his stated intent to leave Home Depot
and to start studies in massage therapy and other contingencies positive and
negative.

[113]     As a
result, I am of the view that an award of $16,000 gross would be a fair
assessment as regards loss of past wages attributable to the Accident.

C.             
Loss of Future Earning Capacity

[114]     To obtain
an award for loss of future earning capacity, or future wage loss, the
plaintiff must first establish on a balance of probabilities that he has
suffered a loss of capacity to earn income.  The question is whether the
plaintiff’s injuries and symptoms from the Accident caused an ongoing
impairment that will affect his ability to earn income at occupations that were
realistic options for him; in other words, has the plaintiff suffered the loss
of a capital asset.  Given my findings earlier, entitlement under this head has
not been established.

Conclusion

[115]    
The plaintiff is entitled to the following damage awards:

(a)           
non-pecuniary – $63,000; and

(b)           
past income loss – $16,000 (gross)

[116]     Court
order interest as is applicable is also to be included in the order.  Unless
there are issues with respect to entitlement to costs, the plaintiff is awarded
costs at Scale B.

“The
Honourable Mr. Justice Masuhara”