IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141204

Docket: M120523

Registry:
Vancouver

Between:

Parminder Singh
Sandhu

Plaintiff

And

Jaswinder Singh
Gabri

Defendant

Before:
The Honourable Madam Justice Maisonville

Reasons for Judgment

      
I.         
introduction

[1]            
In the early morning hours of April 7, 2010, the plaintiff,
Parminder Singh Sandhu, was a passenger in his wife’s motor vehicle, a 2007
Nissan Sentra. Mr. Sandhu had had a couple of drinks and so his friend, Harjinder
Grewal, who had not had anything to drink that evening, was driving at
Mr. Sandhu’s request. The two were driving northbound on 124^th
Street in Surrey, British Columbia, when, without warning, a southbound 1998
Honda motor vehicle, driven by the defendant, Jaswinder Singh Gabri, attempted
a left-hand eastbound turn onto 80^th Avenue and collided with the driver’s
side of the Nissan.

[2]            
The impact was violent and the airbags deployed. Mr. Sandhu’s knee
struck the dashboard and his head and neck hit against the back of the seat. He
felt his chest “was squished” when the seatbelt engaged. While no emergency
vehicles attended, the car was a write-off. The plaintiff called a friend to
pick him up and drive him home.

[3]            
Liability for the accident has been admitted.

    
II.         
Issues

[4]            
The plaintiff claims non-pecuniary damages for his injuries, which he identifies
as soft tissue injuries to his neck and upper back, low back (which resolved by
the end of 2012), knees (which resolved after seven to eight months), chest
from the seat belt (which resolved after a period of four to five months), and
headaches (which have reduced in frequency and currently occur every two
months).

[5]            
The plaintiff also claims damages for loss of earnings both past and
future, loss of earning capacity, and special damages.

[6]            
As liability has been conceded by the defendant, the issues remaining
for determination are as follows:

(1)           
identification of the injuries sustained;

(2)           
establishment of causation; and

(3)           
quantification of:

                                         
i.         
non-pecuniary damages;

                                        
ii.         
loss of past earning capacity;

                                      
iii.         
loss of future earning capacity;

                                      
iv.         
cost of future care; and

                                       
v.         
special damages.

  
III.         
The Facts

[7]            
Mr. Sandhu was 38 years of age at the time of the trial. He is
married and has two young children. His two boys are attending private school. His
mother lives with the family, and he is the primary earner for the household.
Mr. Sandhu immigrated to Canada in 2000. He has a grade nine education
from India and testified with the assistance of an interpreter in his mother
tongue, Punjabi.

[8]            
Mr. Sandhu has worked as a longshoreman since 2004.  He started off
at the casual OO Board level, but by the time of the accident, he had moved up
the casual work boards to a more senior A Board level. Mr. Sandhu has been
fortunate to be called frequently to work, given his role as the primary earner
for his family. Since the accident, he has gained further seniority, and on
January 16, 2013, he became a member of the Local 500 of the International
Longshore & Warehouse Union (“ILWU 500”). Upon becoming a union member,
Mr. Sandhu continued to work regularly at the same types of jobs.

[9]            
As a longshoreman, Mr. Sandhu primarily works two jobs: “40 ton &
rack” and “rack & S/hoist”. The first job, 40 ton & rack, involves
operating a machine to lift filled containers from piles in the yard onto
trucks. The second job, rack & S/hoist, involves operating a machine to
lift empty containers from trucks to the yard.

[10]        
Both machines are similar. To perform these jobs, the operator needs the
use of both hands, one for steering and one to operate the crane function. The
cab is fully enclosed and has only a small seat. Normally, Mr. Sandhu is
the only occupant of the cab. To enter the cab, one must climb a set of stairs
on the exterior of the machine. The ceiling of the machine is safety clear glass,
as the operator must have unrestricted vision of his environment. He must be
able to move his neck back and forth in order to see all areas and move the
containers safely.

[11]        
Mr. Sandhu currently works out of the Vancouver waterfront and is
paid on an hourly basis. Work is obtained according to seniority and he now
enjoys seniority, such that if he attends, he will get the shift work that he
needs to support his family.

[12]        
Dan Cooke, the Manager of Labour Relations for the BC Maritime Employers
Association (“BCMEA”), explained the process of obtaining shift work to the Court.
Work is ordered by the employers and then dispatched to the longshoreman by
means of the board system and physical attendance at the employment hall. To be
dispatched for a shift, longshoremen must make themselves physically available
at the hall at specified times. For a day shift, one attends at 6:45 p.m. for
dispatch and the shift then commences at 8:00 a.m. The afternoon/night shift is
dispatched at 3:00 p.m. and begins at 4:30 p.m., and the graveyard shift is
dispatched at 4:00 p.m. and commences at 1:00 a.m. the following day.
Importantly, no records are made of instances where an individual does not
attend the hall, as there is no requirement to attend unless one is seeking
work.

[13]        
However, the dispatch process is not the end of the matter. Unexpected
situations may arise, and an individual might be unable to attend at the shift
after being dispatched for it. This may be the case, for instance where the
individual has been “ordered back” for the same job on a following day, but for
whatever reason, cannot attend, or where an individual accepts a confirmed job
but subsequently cancels prior to the shift commencing. As a consequence, such
individuals are listed as “called replacement” in their employee work history,
which means they have called in for a replacement after they have been ordered
back.

[14]        
Peter Haines, the Secretary Treasurer of the ILWU 500, also testified on
the procedure, explaining that there is a collective agreement in place between
the BCMEA and the ILWU 500. This agreement remains in effect today and governs
all longshoremen in Canada.

[15]        
Mr. Haines also commented on historic work trends for
longshoremen.  He noted that work availability diminished greatly at the end of
2008 and in 2009. Falling in 2009, according to his evidence, one million hours
below the hours available in 2008. After 2009, however, work increased
steadily. During 2010 there was enough work for union and senior board members to
work on a regular basis, and continuing through 2011 and 2012, more and more
hours became available. This trend has continued, and in 2013 and 2014, there
is as much work available for union members as they wish to work.

[16]        
A union member longshoreman is allowed to work a maximum of 2,496 hours
a year. However, due to the fact that many shifts are deemed to last a certain
amount of hours, this does not necessarily correspond to the actual hours worked.
It is possible to earn for a full shift but not have actually physically worked
the entire time.

 
IV.         
Mr. Sandhu’s Health and INJURIES

1.     Injuries

[17]        
As noted earlier, the accident was violent in nature and occurred while
Mr. Sandhu was a passenger. On the day of the accident, Mr. Sandhu
attended at the offices of his family physician, Dr. Balpinder Sachdev. 
At that time, he experienced pain in his neck, upper back, and lower back
extending into his left leg.

[18]        
As a consequence of the motor vehicle accident, the plaintiff claims the
soft tissue injuries set out in greater detail below.

A.   Neck

[19]        
During his evidence, the plaintiff described his neck pain on the day
after the accident as “a sharp pain in the middle of his neck between the
shoulder areas”.

[20]        
Following the accident, Mr. Sandhu suffered from daily continuous
sharp pain in his neck that would radiate into his arms. His neck pain
continued through the month of May and for the balance of the year. Performing
his work duties increased his pain.

[21]        
He testified that physiotherapy, with Mr. Jaideep Tung, provided
some relief from his neck pain. However, he attended only once a week and his
physiotherapy concluded in September 2010.

[22]        
The plaintiff continued to work through his pain, however, particular
jobs caused him difficulties. Since the operator assigned to both the 40 ton
& rack and the rack & S/hoist jobs must manoeuver the containers and
look right, left, reverse, up and down on a repetitive basis, Mr. Sandhu
explained that completing these jobs would aggravate his neck pain. Throughout
2011 and 2012, his neck pain continued, and while he felt some improvement over
those years, his pain would wax and wane depending on the job or the amount of
work.

[23]        
The plaintiff’s neck pain continued through 2013. He testified that at
present there has been improvement to his neck pain, but he remains aware of
the pain and it is aggravated by his work.

B.    Low
Back

[24]        
The plaintiff described his low back, on the day after the accident, as
being sore, and stiff, with pain radiating into his left leg. His back pain, he
testified, remained continuous throughout 2010. As with his neck pain,
physiotherapy provided only temporary relief.

[25]        
In 2011, the plaintiff experienced minor improvement to his low back
pain, but it continued to be aggravated by work, which required him to sit for
long periods of time or perform other labour intensive jobs, such as shovelling.
In 2012, the plaintiff felt that his low back pain gradually improved, and that
it had resolved by the end of 2012.

C.    Knees

[26]        
The plaintiff’s knees were injured during the accident, since they hit
the dash at the time of the collision. He testified that he would experience
pain when bending to sit and rising to a standing position. His knee pain,
however, resolved after seven to eight months.

D.   Chest

[27]        
On collision, the airbags were deployed and the plaintiff’s chest
strained against the seatbelt. He described it as a squeezing, painful
sensation. His chest symptoms, however, resolved after four to five months.

E.    Headaches

[28]        
The plaintiff suffered from frequent headaches for a two-year period
following the collision. They were aggravated by work and usually accompanied
his neck pain. His headaches have since decreased steadily, and at the time of
trial, Mr. Sandhu testified that he has been suffering from headaches only
once every two months.

2.     Treatment

[29]        
Following the accident, the plaintiff sought treatment from his family
doctor and physiotherapist Mr. Jaideep Tung. Mr. Sandhu’s mother also
assisted by providing massages, which gave some relief from his pain.

[30]        
As noted, Mr. Sandhu’s physiotherapy continued to September 2010. Following
that, Mr. Tung gave him a regime of stretching exercises that he could
perform at home three to four times a week. He completed these exercise up
until his low back symptoms resolved in late 2012, at which time he reduced
their frequency to two to three times a week.

[31]        
Throughout 2010 and 2011, the plaintiff also regularly attended at Dr. Sachdev’s
office and was treated by a number of local physicians that were working at the
same clinic.

[32]        
At the time of trial, Mr. Sandhu walked on the treadmill at home
and continued to perform his physiotherapy-directed exercises two to three
times a week. He would also go for walks. The plaintiff had ceased going to Dr. Sachdev
on a regular basis, as he came to realize that there was little the doctors
could do for him medically. He was also taking Tylenol for pain.

3.     Pre-Accident
Health

[33]        
Mr. Sandhu testified that he did not suffer from any neck pain,
headaches or chest pain in the two years immediately preceding the accident. He
had sustained a slip and fall at his home in early June 2009, injuring his
lower back. He indicated in his evidence that the pain in his lower back
radiated down his right leg and that as a result of that fall he was off work
completely for almost five months. During that time, he received benefits from
his employer of $700 per week.

[34]        
The plaintiff underwent physiotherapy until early October 2009, and he
indicated that he did not recover from these injuries until December 2009. He
returned to work in late October 2009, and then worked full time during the
approximately five months leading up to the motor vehicle accident.

[35]        
Following the slip and fall, Mr. Sandhu received treatment from Mr. Shivraj
Sandhu, a physiotherapist at Scottsdale Physiotherapy. At trial, Mr. Shivraj
Sandhu was asked to confirm his clinical records. He confirmed that the
plaintiff had indicated that his back pain was only 50% improved by
mid-September 2009 and that the plaintiff’s range of motion had increased to 60%.
He also confirmed that his clinical records indicate that the plaintiff
reported pain in his left low back radiating into his left leg. It was noted
that Mr. Shivraj Sandhu can speak Punjabi with his patients if necessary.

[36]        
These clinical records contradicted plaintiff’s report that the slip and
fall injury affected his right leg, and the defendant submitted that, based on
these records, the plaintiff’s left low back injury pre-dated the motor vehicle
accident.

[37]        
The records were put to the plaintiff in cross-examination. He could not
account for the discrepancy, but indicated that it could have been a mistake
written by the physiotherapist.

[38]        
The plaintiff argues that regardless of this injury, there was no
medical evidence that Mr. Sandhu was symptomatic prior to the motor
vehicle accident in April 2010. Rather, the evidence from January to March 2010
was that of a fit healthy man who was going for walks and running three to four
times a week. He also testified that his weight just before the accident was
210 pounds, and that he now weighs 260 pounds.

4.     Post-Accident

[39]        
As outlined above, the plaintiff testified as to both his ongoing
difficulties following the accident as well as to those issues that have
resolved.

[40]        
His co-worker, Mr. Rajeev Sharma, also testified as to Mr. Sandhu’s
post-accident abilities. Mr. Sharma is 34 years of age and resides in the
Lower Mainland. He was not cross-examined. He testified that he began work a
longshoreman in July 2004 and that he is currently a union member. He has known
the plaintiff for approximately 10 years, since Mr. Sandhu started working
as a longshoreman in the fall of 2004.

[41]        
Following Mr. Sandhu’s return to work after the accident, Mr. Sharma
noticed Mr. Sandhu holding his neck and shoulders. Mr. Sharma asked Mr. Sandhu
what had happened, and was told that Mr. Sandhu had been involved in a
motor vehicle accident. Mr. Sharma did not want to pry any further, but he
frequently observed Mr. Sandhu massaging his neck and shoulders during
shared breaks from that point until the end of 2010. He also saw Mr. Sandhu
using an ice pack. While he could not state exactly how frequently Mr. Sandhu
rubbed his neck and shoulders, Mr. Sharma noted that it occurred quite a
bit.

[42]        
As they had approximately the same seniority, Mr. Sandhu and Mr. Sharma
frequently worked alongside each other through 2011 and 2012 and would often
share breaks. Mr. Sharma testified that he could see that Mr. Sandhu
was in pain, and in particular, that Mr. Sandhu would stretch his neck,
rub his shoulders, use an ice pack, and complain of low back pain. He noted
that most of Mr. Sandhu’s complaints were in respect of his upper back and
neck.

[43]        
Mr. Sharma recounted one recent specific incident, when Mr. Sandhu
had been assigned container lift work. Mr. Sharma advised this Court that
during that incident, Mr. Sandhu was suffering discomfort from his neck
and upper back to the extent that he was worried that he was not going to be
able to complete his assigned job. As a consequence, Mr. Sharma helped Mr. Sandhu
complete the work. Mr. Sharma further explained that both types of container
lift work are hard on the neck.

[44]        
Mr. Sharma was not cross-examined.

5.     Medical
Evidence

[45]        
The only medical expert report before this Court was that of Dr. Cecil
Hershler. Dr. Hershler was qualified as an expert witness able to give
opinion evidence in the area of physical medicine rehabilitation and the
diagnosis, management and treatment of musculoskeletal disorders, with a
speciality in chronic pain to musculoskeletal structures, such as muscles,
ligaments, and tendons.

[46]        
In his medical legal report, Dr. Hershler stated:

The history and physical findings
are consistent with injuries to the ligaments and muscles in the neck and upper
thoracic spine. There is evidence of tenderness on palpation in the ligament
structures and the adjacent trapezii. These musculoligamentous injuries have
resulted in myofascial pain. Given the duration, the injury is chronic in
nature. There is no evidence of radiculopathy or neuropathy.

[47]        
Dr. Hershler explained the difference between chronic and acute
pain. He testified that acute pain is typically of short duration, whereas
chronic pain commences after acute pain resolves and results from tiny sensory
neurofibres of the body remaining unhealed, which causes ongoing sensations of
pain. He also testified that as acute pain decreases, the level of disability
associated with that pain will decrease.

[48]        
Dr. Hershler had seen the plaintiff on June 20, 2014. He chiefly
uses palpation as his clinical tool in assessing individuals with
musculoligamentous injuries. When it was put to him in cross-examination that
the indication of involuntary withdrawal from palpation could be deliberately
achieved by a patient, he denied this assertion. His response was that withdrawal
was a physiological response which could simply not be achieved voluntarily.

[49]        
Dr. Hershler recommended an activity-based exercise program to help
the plaintiff maintain his strength. However, while such a program would
improve the plaintiff’s pain management, it would not take away or resolve his
pain. In regards to the plaintiff’s employment, Dr. Hershler stated, “I
would encourage Mr. Sandhu to continue working, but it is likely that he
will continue to lose time from work due to pain, in the foreseeable future”.

[50]        
Dr. Hershler was cross-examined about the plaintiff’s thyroid
condition, recurring cough, and bronchitis and confirmed that they were not
related in any way to the accident. He was aware that the plaintiff had
sustained a fall at home in June 2009 and indeed his report notes that “[i]n
2009, Mr. Sandhu fell at home and sustained an injury to the right lower
back and leg”.

[51]        
In cross-examination, Dr. Hershler was asked to clarify his report,
which stated that “[p]ost-Accident, Mr. Sandhu complained of pain in the
neck, shoulder, back and left leg. He saw his family doctor. In his family
doctor’s note there is documentation of pain in the neck, back and left leg, as
well as tenderness over the left side of the chest wall”. Dr. Hershler indicated
that he was referring to the April 7, 2010, clinical notes made by the
plaintiff’s family doctor, Dr. Sachdev. This clinical note noted “pain all
over”, and Dr. Hershler indicated in cross-examination that he had interpreted
this to mean pain in the lower back. Dr. Sachdev’s April 7, 2010, clinical
notes also indicated that the plaintiff experienced “pain to left leg” and
“left leg contusion mid shaft area” which Dr. Hershler agreed indicated a
bruise on the plaintiff’s leg, not radiating pain.

[52]        
Dr. Sachdev’s clinical notes became significant because two
versions of the notes exist. At one time, plaintiff’s counsel had written for a
complete copy of the doctor’s notes and received what I have referred to above
as the April 7, 2010, clinical notes. When requested again, at a later date,
there appeared to be additions to the notes, for instance, they were apparently
organized and headed “(1) the left leg”, “(2) the chest wall – left side” and
“(3) the neck range of motion” and arrows signifying a decrease in range of
motion had apparently been added. Dr. Sachdev was called to the stand and
could not explain how the note came to be changed and denied making those
changes. He noted that his April 7, 2010, note, on which he had written “pain
all over”, was the note created at the plaintiff’s first visit.

[53]        
While the plaintiff had been assessed by a physician for the defendant,
no medical expert evidence was called by the defendant. In Buksh v. Miles,
2008 BCCA 318 at para. 35, the Court of Appeal noted the threshold
consideration relevant to whether an adverse inference can be drawn from a
party’s failure to lead medical reports:

…whether, given the evidence
before the court, given the explanations proffered for not calling the witness,
given the nature of the evidence that could be provided by the witness, given
the extent of disclosure of that physician’s clinical notes, and given the
circumstances of the trial … a juror could reasonably draw the inference that
the witness not called would have given evidence detrimental to the party’s
case.

[54]        
In the case before me, the defence did not give a reason for not calling
its physician and the physician’s notes were not disclosed to the court. Given
the circumstances in this trial, in particular that the defence led no other
reports, and the nature of the evidence that could have been led, I find that
this threshold test is met and that an adverse inference could be open to me.
On the facts of this case, however, I find that such an inference was not fully
argued before me, nor would it be of use to this Court.

   
V.         
Credibility

1.     Assessing
Credibility

[55]        
Many factors must be considered by the court in an assessment of a
witness’ credibility. As stated by Justice Adair in Gichuru v. Smith,
2013 BCSC 895 at paras. 129-130, aff’d 2014 BCCA 414:

[129]    The art of assessment of credibility involves
examination of various factors such as: the witness’s ability and opportunity
to observe events; the firmness of the witness’s memory; the witness’s ability
to resist the influence of interest to modify his or her recollection; whether
the witness’s evidence harmonizes with independent evidence that has been
accepted; whether the witness changes his or her testimony during direct and
cross-examination; whether the witness’s testimony seems unreasonable,
impossible, or unlikely; whether a witness has a motive to lie; and the
demeanour of a witness generally. See Bradshaw v. Stenner, 2010 BCSC
1398, at para. 186, aff’d 2012 BCCA 296.

[130]    Moreover, the
assessment of a witness’s credibility must reasonably subject the witness’s
story to an examination of its consistency with the probabilities of the
surrounding conditions or circumstances. The real test of the truth of the
story of a witness in such a case must be its harmony with the preponderance of
the probabilities which a practical and informed person would readily recognize
as reasonable in that place and in those circumstances. See Faryna v. Chorny,
[1952] 2 D.L.R. 354 (B.C.C.A.), at pp. 356-357.

[56]        
Justice Dillon summarized other factors to be considered in any
credibility assessment in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186,
aff’d 2012 BCCA 296 as follows:

[186]    Credibility involves an
assessment of the trustworthiness of a witness’ testimony based upon the
veracity or sincerity of a witness and the accuracy of the evidence that the
witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452,
50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of
his memory, the ability to resist the influence of interest to modify his
recollection, whether the witness’ evidence harmonizes with independent
evidence that has been accepted, whether the witness changes his testimony
during direct and cross-examination, whether the witness’ testimony seems
unreasonable, impossible, or unlikely, whether a witness has a motive to lie,
and the demeanour of a witness generally (Wallace v. Davis, [1926] 31
O.W.N. 202 (Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.)
[Faryna]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128
(S.C.C.)). Ultimately, the validity of the evidence depends on whether the
evidence is consistent with the probabilities affecting the case as a whole and
shown to be in existence at the time (Faryna at para. 356).

[57]        
As set out by the Court of Appeal in Samuel v. Chrysler Credit Canada
Ltd., 2007 BCCA 431 at paras. 15, 49, if the plaintiff’s account of
his change in physical, mental and/or emotional state as a result of the
accident is not convincing, the evidentiary basis and hypothesis upon which
expert opinion rests is undermined.

2.     Credibility
Findings

[58]        
Counsel for the defendant noted the overarching importance of credibility
in this case, particularly given the concerns with respect to the notations
made by the pre-accident physiotherapist, Mr. Shivraj Sandhu, and the
differing medical records of Dr. Sachdev.

[59]        
Counsel for the defendant noted in closing argument that credibility and
reliability of evidence were the fundamental underpinnings of the plaintiff’s
claim. Similarly, counsel for the plaintiff also argued that credibility was an
important factor in this case and pointed to the plaintiff’s limited education
and his simple style of expressing himself as factors supporting his
credibility. I agree that the credibility of the plaintiff is in issue.

[60]        
The defendant argues that little weight should be given to the
plaintiff’s evidence, insofar as he complains of his injuries, given the
difficulties with the medical records, and also given his earlier fall and the conflicting
medical records pertaining to that event.

[61]        
Mr. Sandhu, who testified with the aid of an interpreter, gave his
evidence simply and in a straight forward manner. He testified as to the
difficulties he has been having and was very frank in admitting those injuries
which had resolved. I find that he did not exaggerate or give his evidence in a
manner that was argumentative or which displayed an effort to deceive. He
testified simply and endeavoured to explain the inconsistencies which were put
to him in cross-examination. Despite a rigorous cross-examination, he
maintained his ground and correspondingly admitted matters where they were put
to him and he felt it was appropriate to agree with defence counsel.

[62]        
In all of the circumstances, while he gave his evidence in a simple
manner, I find that he was candid and forthright, and I accept that he has
ongoing pain in his neck and upper back but that this pain is not disabling him
from continuing to work or perform physical activities, albeit with pain.

[63]        
With respect to his co-worker, Mr. Sharma, I find that he gave his
evidence in a direct and straight forward manner. He was not cross-examined. I
accept his evidence in its entirety. No other lay witnesses were called by the
plaintiff.

[64]        
With respect to Dr. Hershler, I accept his report. I also accept
that he has provided the plaintiff with treatment suggestions to improve the
plaintiff’s condition.

 
VI.         
Causation

1.     Plaintiff’s
Position

[65]        
The plaintiff’s position is that his ongoing injuries are caused and
directly attributable to the accident.

[66]        
The plaintiff asserts that while his low back, knee, and chest pains
have resolved, his neck pain and upper back pain continue. While there has been
improvement, he testified that he experiences constant ongoing pain, which is
aggravated by his duties at work.

[67]        
Dr. Hershler’s opinion was, respecting Mr. Sandhu’s neck and upper
back, that “the chronic musculoligamentous injuries were caused by the motor
vehicle accident on April 7, 2010”. He noted there was no prior history of
symptoms of that nature prior to that date. He also noted the resolution of Mr. Sandhu’s
pain in his low back, knees, and left leg, which was refer pain from the low
back injury. He found in terms of prognosis, that as a consequence of the motor
vehicle accident and the injuries that Mr. Sandhu had sustained in that
event, it was “more likely than not that Mr. Sandhu will experience some degree
of pain indefinitely”.

2.     Defendant’s
Position

[68]        
The defendant’s position is that the plaintiff’s injuries, notably his
low back injuries, were caused as a consequence of the fall at his home in
2009. This view is supported by the notations in Mr. Shivraj Sandhu’s
physiotherapist’s notes.

[69]        
As discussed above, the plaintiff was cross-examined on the fact that Mr. Shivraj
Sandhu’s clinical notes indicate that the slip and fall injury had resulted in
left lower back pain. Pain which was disabling in that it limited his ability
to stand for half an hour or to sit for 40 minutes. He was further questioned
on the fact that the notes indicate that as of mid-September the plaintiff was
only “50% improved”.

[70]        
The plaintiff, when confronted with these records in cross-examination,
indicated that he thought that it must have been a mistake on the part of the
physiotherapist since his pain from that incident extended to his right leg. In
any event, his back pain was completely resolved by the end of 2012.

3.     The
Law

[71]        
The plaintiff must establish, on a balance of probabilities, that the
accident caused or materially contributed to the injuries he sustained. While
causation must be established, it need not be determined with a scientific
precision: see Athey v. Leonati, [1996] 3 S.C.R. 458 paras. 13-17; Farrant
v. Laktin, 2011 BCCA 336 at para. 9.

[72]        
In Resurfice Corp. v. Hanke, 2007 SCC 7 at para. 21, the Supreme
Court of Canada put the test simply as being “but for” the defendant’s
negligence would the plaintiff have suffered injury?

[73]        
This question recognizes that there will be no compensation for an
injury sustained by negligent conduct unless there is a substantial connection
between the injury and the conduct.

[74]        
Causation must be established on a balance of probabilities before
damages are assessed. As Chief Justice McLachlin noted for the Court in Blackwater
v. Plint, 2005 SCC 58 at para. 78:

78        It is
important to distinguish between causation as the source of the loss and the
rules of damage assessment in tort. The rules of
causation consider generally whether “but for” the defendant’s acts, the
plaintiff’s damages would have been incurred on a balance of probabilities.
Even though there may be several tortious and non-tortious causes of injury, so
long as the defendant’s act is a cause of the plaintiff’s damage, the defendant
is fully liable for that damage. The rules of damages then consider what the
original position of the plaintiff would have been. The governing principle is
that the defendant need not put the plaintiff in a better position than his
original position and should not compensate the plaintiff for any damages he
would have suffered anyway: Athey. Mr. Barney’s submissions that injury
from traumas other than the sexual assault should not be excluded amount to the
contention that once a tortious act has been found to be a material cause of
injury, the defendant becomes liable for all damages complained of after,
whether or not the defendant was responsible for those damages.

4.     Discussion

[75]        
The defendant’s key argument on the causation issue is that certain notations
in Mr. Shivraj Sandhu’s clinical notes give raise to the suggestion that
the plaintiff had sustained an injury to his leg in 2009, prior to the accident,
and that those notations consequently break the chain of causation in regards
to compensation for the left leg injury. With respect, however, the plaintiff’s
injuries are chiefly, and most significantly, to his neck, shoulder and upper
back. According to Dr. Hershler, those musculoligamentous injuries are now
chronic and unlikely to improve.

[76]        
Counsel for the defendant argued that Dr. Hershler’s report should
be discounted because he relied heavily on the plaintiff’s self-reporting and a
history which could not be independently verified. Further problems, argues
counsel for the defendant, included some questions as to the plaintiff’s weight
before and after the motor vehicle accident, which the doctor was unable to
corroborate, and the fact that he was unable to say how often the plaintiff was
having headaches.

[77]        
With respect, however, these factors do not detract from the ongoing
chronic nature of the pain being suffered by the plaintiff. While the court is
mindful of the fact that there was self-reporting by the plaintiff of his
injuries, the doctor’s evidence was unchallenged by any other medical expert,
and to the extent possible, he had endeavoured to find an objective means to
assess the plaintiff by his palpation methodology. In all of the circumstances,
I find that the initial injuries and ongoing musculoligamentous injuries
were caused by the motor vehicle accident on April 7, 2010.

 VII.         
Damages

1.     Failure
to Mitigate

[78]        
Dr. Hershler and the plaintiff were both asked about treatment that
could assist the plaintiff in his ongoing pain.

[79]        
Dr. Hershler had specifically set out in his report that the
plaintiff should commence an activity based exercise program and that he should
have 20 sessions with an exercise trainer so that he could learn how to perform
exercises either at home or in a gym on a regular basis, daily if possible. In
this manner, Mr. Sandhu would hopefully lose weight and improve his core
strength in his neck and upper back, without aggravating his pain.

[80]        
Dr. Hershler was asked on cross-examination when he had recommended
that the plaintiff commence this treatment. He indicated that he had
recommended that treatment begin as soon as possible and that the plaintiff’s
pain may have improved by the date of trial had he immediately commenced the
recommended course of action. Dr. Hershler indicated that he had made
these recommendations, and noted the potential for decreased pain, to the
plaintiff, through the interpreter, at the assessment on June 20, 2014.

[81]        
The plaintiff was challenged in cross-examination about the reasons for
which he had not commenced the recommended treatment. He stated that while he
has continued his regular physiotherapy recommended exercises and treadmill walks
since the time of the accident, he had not yet followed Dr. Hershler’s
recommendations because of the short time frame to trial and because of his
limited finances.

[82]        
Failure to mitigate by not pursuing reasonable recommended courses of
medical treatment may result in reduction of damages. A leading case on this
issue is Chiu v. Chiu, 2002 BCCA 618, in which the court states at para. 57:

[57]      The
onus is on the defendant to prove that the plaintiff could have avoided all or
a portion of his loss. In a personal injury case in which the plaintiff has not
pursued a course of medical treatment recommended to him by doctors, the
defendant must prove two things: (1) that the plaintiff acted unreasonably in
eschewing the recommended treatment, and (2) the extent, if any, to which the
plaintiff’s damages would have been reduced had he acted reasonably. These
principles are found in Janiak v. Ippolito, [1985] 1 S.C.R. 146.

[83]        
In Gregory v. Insurance Corporation of British Columbia, 2011
BCCA 144 at para. 56, the court further articulates that the test is a
“subjective/objective test … [t]hat is whether the reasonable patient, having
all the information at hand that the plaintiff possessed, ought reasonably to
have undergone the recommended treatment.”

[84]        
Counsel for the defence submits that the plaintiff’s damages should be
reduced by 10%, as a consequence of failing to embark on the treatment recommended
by Dr. Hershler.

[85]        
I find, however, that Mr. Sandhu’s responses as to why he had not
started treatment to be sincere and reasonable. The plaintiff is obliged to
undergo reasonable medical treatment and follow medical advice where
appropriate. He has consistently performed the regular exercises recommended by
his physiotherapist in combination with walks on his treadmill. He has also
expressed a willingness to complete the exercise program recommended by Dr. Hershler.
Objectively, the plaintiff had only three months prior to trial in which to
adjust his finances in order to implement this program. In light of this short
time period, I do not find his delay unreasonable such that he should be found
to have failed to mitigate.

2.     Non-Pecuniary
Damages

[86]        
Non-pecuniary damages are awarded to compensate individuals for pain,
loss of enjoyment of life, and loss of amenities suffered through no fault of
their own by the negligence of the defendant. Such an award should be fair to
all parties, measured against similar awards and similar cases. Prior awards,
while helpful, only serve as a rough guide and each case depends upon its own unique
facts: Trites v. Penner, 2010 BCSC 882 at paras. 188-189:

[188]    … The compensation awarded should
be fair and reasonable to both parties: Andrews v. Grand & Toy Alberta
Ltd., [1978] 2 S.C.R. 229 [Andrews]; Jackson v. Lai, 2007
BCSC 1023 at para. 134 [Jackson]; Kuskis v. Hon Tin, 2008
BCSC 862 at para. 135 [Kuskis].

[189]    For
the purposes of assessing non-pecuniary damages, fairness is measured against
awards made in comparable cases. Such cases, though helpful, serve only as a
rough guide. Each case depends on its own unique facts: Andrews; Jackson;
Jenkins v. Bourcier, 2003 BCSC 388 at para. 87; Radford v.
Drobot et al., 2005 BCSC 293 at para. 62; Kuskis at para 136.

[87]        
The factors to be considered in assessing an award of non-pecuniary
damages were outlined by Justice Kirkpatrick for the majority of the Court of
Appeal in Stapley v. Hejslet, 2006 BCCA 34 at para. 46:

[46]      The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of
pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of
life;

I would add the following factors, although they may arguably
be subsumed in the above list:

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

(h)        impairment
of physical and mental abilities;

(i)         loss
of lifestyle; and

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

[88]        
When assessing injuries depending upon subjective reports of pain, the
court is cautioned to be exceedingly careful: see Price v. Kostryba (1982),
70 B.C.L.R. 397 at 397, 399 (S.C.). Justice Kirkpatrick for the court
considered this issue in Edmondson v. Payer, 2012 BCCA 114 at para. 2,
quoting Price with approval:

[2]        In Price v. Kostryba (1982), 70 B.C.L.R.
397 (S.C.) at 397 and 399, Chief Justice McEachern, in remarks since quoted
many times, stated:

The assessment of damages in a moderate or moderately severe
whiplash injury is always difficult because plaintiffs, as in this case, are
usually genuine, decent people who honestly try to be as objective and as
factual as they can. Unfortunately, every injured person has a different
understanding of his own complaints and injuries, and it falls to judges to
translate injuries to damages.

…

I am not stating any new principle when I say that 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.

[89]        
The plaintiff bases this portion of his claim on the fact that
Mr. Sandhu is now a different man since the accident. He no longer gardens,
he leaves certain activities to his wife and mother, he is unable to return to
recreational soccer, he is unable to run three to four times a week, he can no
longer dance at receptions for weddings, and he continues to suffer from neck
pain and headaches that are aggravated by activities of daily living.

[90]        
Dr. Hershler’s report indicates that the plaintiff will suffer from
chronic neck pain. Dr. Hershler writes:

He is currently taking plain
Tylenol (three-to-four times a week) to assist with pain management. The pain
sometimes increases with work and, on those occasions, he takes more pain
medication. The pain in the low back and the left leg have resolved, but he has
been left with pain in the neck and upper back (between the shoulder blades).
When his work is heavy, he has headaches. On average, he rates the pain and the
neck and upper back at one-to-two out of 10 (0/10 = no pain; 10/10 =
excruciating intolerable pain). When he has a particularly heavy workload, however,
the pain levels reach three-to-four out of 10.

[91]        
Dr. Hershler was cross-examined extensively and did not resile from
his opinion. He diagnosed injury to the ligaments and muscles in the neck and
upper thoracic spine and stated further:

Based on the history, physical
examination, review of documentation and description of the accident, it is my
opinion that these chronic musculoligamentous injuries were caused by the motor
vehicle accident on April 7, 2010. There is no history of Mr. Sandhu ever
having symptoms of this nature prior to the accident. The accident also
resulted in soft tissue injuries to the low back and knees, but these have
healed. Similarly, the pain he initially experienced in the left leg was
referred from the low back injury but has now resolved.

[92]        
Dr. Hershler’s prognosis, given that four years have elapsed since
the accident, coupled with the lack of improvement, was that “it is more likely
than not that Mr. Sandhu will experience some degree of pain indefinitely.
It is less likely that the pain will simply resolve in the near future”.
Consequently, Dr. Hershler was of the opinion that Mr. Sandhu will
continue to experience daily pain, for an indefinite period of time.

[93]        
The defendant’s position is that the appropriate amount for
non-pecuniary damages is $25,000 to $30,000.

[94]        
The defendant relies in large part upon Sidhu v. Johal, 2012 BCSC
587, where the plaintiff was a longshoreman with prior injuries which had
resolved by the time of the accident. In that case, the plaintiff’s accident
related back pain had continued to the time of trial, five years later, but it
was mild and depended on his exertion at work. He was awarded $30,000 under
this head of damages.

[95]        
The defendant also relies upon the following cases and non-pecuniary awards:
Rochon v. Mott, 2009 BCSC 247 ($23,000); Job v. Van Blankers,
2009 BCSC 230 ($25,000); Foo v. Masardijian, 2009 BCSC 1519, ($30,000);
and Hunter v. Yuan, 2010 BCSC 1526 ($35,000). These cases involved individuals
whose pain had largely resolved. In each, the injuries initially presented
acute symptoms but resolved over time and became intermittent.  They are
therefore distinguishable from the case before this Court in light of Mr. Hershler’s
opinion that Mr. Sandhu will continue to experience chronic pain.

[96]        
The plaintiff argues that the injuries merit an award of non-pecuniary
damages in the amount of $65,000 to $90,000.

[97]        
Mr. Sandhu relied on Michael v. Bayfield, 2014 BCSC 1602, in
which the plaintiff similarly had ongoing chronic injuries and was awarded
$65,000. However, in that case, plaintiff was also off work for a significant
period of time over a period of years. He had ongoing difficulties in his
relationship with his family, which was corroborated by other witnesses, and
was unable to return to his pre-accident activities, as testified to by his
friends. His condition was summarized as being substantially disabling twice a
month.

[98]        
The plaintiff also relied upon the decision of Esau v. Myles,
2010 BCSC 43, in which Justice Ross awarded $70,000 for non-pecuniary damages.
In that case, Justice Ross found that the plaintiff suffered soft tissue
injuries to his neck, which had resolved, as well as chronic pain in his lower
back, with flare ups of severe pain, from an anatomical anomaly, spina bifida
occulta. He was no longer able to participate in jobs requiring heavy labour.

[99]        
The plaintiff also relies upon the following cases and non-pecuniary
awards: Rayner v. David, 2012 BCSC 2048 ($65,000) in which the
plaintiff’s chronic pain led him to avoid certain work tasks and modify his
recreational activities, and Foran v. Nguyen, 2006 BCSC 605 ($90,000) in
which the plaintiff’s daily instances of moderate to severe pain led her to
discontinue one of her jobs and significantly impacted her ability to sleep. Finally,
the plaintiff relied on Miller v. Lawlor, 2012 BCSC 387 in which Justice
MacKenzie awarded $65,000 in non-pecuniary damages. In that case, the
plaintiff’s sporadic pain affected his ability to perform heavier tasks at work
and was augmented by certain tasks. His pain also affected his overall
lifestyle such that he could no longer participate in former leisure activities
or help out with heavier chores.

[100]     In the
present case, the plaintiff has been able to work, despite his ongoing neck and
upper back pain. Given the circumstances, I find that the case before me is distinguishable
from the cases where there was an inability to continue work at all, Michael,
Esau, Foran. I find instead that this case is most akin to cases
where the plaintiff has been able to maintain full time employment, such as
those found in Miller and Rayner.

[101]     Further, I
note that in some cases, notably Esau and Foran, the plaintiff
had exhausted all recommended treatment procedures. Here however, although I
recognize that only a few months had lapsed between the plaintiff’s visit to Dr. Hershler
and the commencement of trial, the plaintiff has yet to follow up on the
treatment recommended by Dr. Hershler.

[102]     I accept that,
in the circumstances of the case before me, this case is most like that of Miller
and Rayner.

[103]     Taking
into account all of the evidence and the authorities presented by both counsel,
I award $60,000 in non-pecuniary damages.

3.     Loss
of Past Earning Capacity

[104]     Between
the date of the motor vehicle accident and the date of trial, Mr. Sandhu
was unable to work a number shifts due to accident related injuries. He
initially took off two days from the accident and, as described by Mr. Sharma,
he would suffer from pain on occasion at his job, such that he was unable to
continue.

[105]     In
evidence, Mr. Sandhu estimated that he missed approximately two to three
shifts per month following the accident in 2010 and that he currently misses
three to five shifts per month as a consequence of ongoing pain. He acknowledged
that he would, on occasion, miss work due to other problems such as colds or family
matters that required his attendance. Mr. Sandhu has tendered all his work
records. They do not, however, demonstrate why he did not attend work.
Accordingly, he was unable to give a precise number of days he missed because
of accident related pain.

[106]     Plaintiff’s
counsel endeavoured to correlate the times that Mr. Sandhu had presented at the
hall and “called replacement” to indicate the number of times that he was
unable to work due to the accident. Taking into account taxes and other
contingencies, counsel submitted that an award of $35,000 for past loss of
income was appropriate.

[107]     Defence
counsel, however, pointed out that, as per the evidence of Mr. Haines,
much less work was available in the period immediately after the accident.

[108]     In order
to clarify the approach advanced by the plaintiff, I return to my earlier
description of the “called replacement” aspect of the work record. In
particular, both Mr. Cooke and Mr. Haines testified to these facts,
which I accept and which are significant in light of the calculation method
advanced by the plaintiff. First, an individual presents at the Hall for work.
If he is given a shift but cannot attend for whatever reason, the record
indicates “called replacement”. The records do not describe why a person called
replacement, and so it could be for any number of reasons: a better higher
paying shift came available, or the individual became ill, or a family or
personal matter arose.

[109]     The
evidence submitted by the plaintiff disclosed that his call replacement
frequency increased significantly in 2013, a time corresponding with the time
that he became a union member. As a union member, he would be first in line to
take a better paying shift. The defendant put the proposition that the
increased call replacement records therefore corresponded not to missed work,
but rather to the plaintiff’s decision to take better shifts to the plaintiff
in cross-examination. However, the plaintiff disagreed.

[110]     Further, I
note that the records themselves are self-limiting, because, as stated, they
only disclose where an individual has secured a shift and then called
replacement. So in addition to not disclosing the reason for calling a
replacement, no record is kept if an individual simply does not present
themselves for a shift.

[111]     The
question then arises how to assess the plaintiff’s loss of income. The
plaintiff submits that a fair manner in this case would be as a component of
loss of earning capacity.

[112]    
In Sidhu at paras. 158-159, Justice Fitzpatrick held:

[158]    The objective in assessing an award for loss of
income and earning capacity is to restore the plaintiff to the position that
they would have been in if not for the injuries caused by the defendant: Lines
v. W & D Logging Co. Ltd., 2009 BCCA 106 at para. 185, 306 D.L.R. (4th)
1; and Falati v. Smith, 2010 BCSC 465 at para. 38, aff’d 2011 BCCA 45.

[159]    Claims for past loss of
income are often characterized as a separate head of damages. However, it is
properly characterized as a component of loss of earning capacity. It is a
claim for the loss of value of the work an injured plaintiff would have
performed but was unable to perform because of the injury: Rowe v. Bobell
Express Ltd., 2005 BCCA 141 at para. 30, 251 D.L.R. (4th) 290; Bradley
v. Bath, 2010 BCCA 10 at paras. 31-32, 1 B.C.L.R. (5th) 228; and Falati
at para. 39.

[113]    
Justice Gibbs in Iannone v. Hoogenraad (1992), 66 B.C.L.R. (2d)
106 at para. 6 (C.A.), stated:

This plaintiff, like others in in
similar circumstances, had the burden of leading evidence of post-accident
wages losses. That will be a difficult burden to discharge where there is no
corroborating evidence such as income tax returns, but it is not an impossible
burden to discharge.

[114]    
The defendant’s position was that the plaintiff’s own evidence at trial
was that his pain was mild and that he will improve with an exercise program.
The defendant also stated that there was no evidence that the plaintiff
actually missed time from work due to injuries. However there was in fact
evidence, that evidence came from Mr. Sandhu and I accept Mr. Sandhu’s
evidence.

[115]    
I find that the plaintiff has established on a balance of probabilities
that he has lost earnings from the accident. This claim should not be rejected
simply because the plaintiff is unable to point to a specific number of missed shifts.

[116]    
A fair assessment of the fact of loss of income can be extrapolated from
the plaintiff’s description of his pain over the years and from the number of
days he testified he misses per month from work now, which is three to five
days. I find it is not necessary to ascertain this aspect of his claim amount
with mathematical precision, given that the nature of ILWU 500 and BCMEA
record-keeping for longshoreman work does not lend itself to definitive records
that could be put before this Court. While defence counsel argues that this loss
of earnings claim should be rejected because of the lack of evidence, with
respect, there is the testimony of the plaintiff himself.

[117]    
Another manner of assessing the plaintiff’s loss earnings is to assess
his loss of value of work. Ken Cooper-Stephenson, in Personal Injury Damages
in Canada, 2nd Ed. (Scarborough, Ont.: Carswell, 1996) at 205-206, stated:

The essence of the task under
this head of damages is to award compensation for any pecuniary loss which will
result from an inability to work. “Loss of the value to work” is the substance
of the claim — loss of the value of any work the plaintiff would have done but
for the accident but now will be unable to do. The loss framed in this way may
be measured in different ways. Sometimes it will be measured by reference to
the actual earnings the plaintiff would have received; sometimes by a
replacement cost evaluation of tasks which the plaintiff will now be unable
to perform; sometimes by an assessment of reduced company profits; and
sometimes by the amount of secondary income loss, such as shared family
income.

[118]    
Clearly, as a matter of fairness, the difficulty of the task does not
relieve the court from making an effort to measure objectively and award for
this loss.

[119]     The
plaintiff estimates that he currently misses three to five shifts per month as
a consequence of ongoing pain and that in 2010 this number was two to three
shifts a month. By way of evidence corroborating this claim, the plaintiff
suggests using the number of called replacements in his last ten months of full
time work prior to the accident as a benchmark against which I can objectively
establish an increase in the number of called replacements in subsequent years.
Due to his slip and fall, the proposed ten month period is interrupted by a
five month absence. During the ten months, the plaintiff had 3 called
replacements, the equivalent of 3.6 called replacements over a 12-month period.
Defence counsel proposes that should this method be used, 2008 would be a
fairer benchmark given that Mr. Sandhu’s slip and fall could have affected his
post absence work practices. In 2008, Mr. Sandhu’s called replacements
were 16.

[120]     In 2010,
Mr. Sandhu’s records show 14 called replacements, which includes the two days missed
immediately following the accident and one day that he acknowledges missing
before the accident. In 2011, the plaintiff called replacement 32 times. In
2012, he called replacement 33 times. In 2013, he called replacement 54 times.
During the first eight months of 2014, he has called replacement 25 times. Therefore,
in each of 2011-2014, he has consistently called replacement with a higher
frequency than the 16 called replacements recorded for 2008 and the 3.6
baseline urged by the plaintiff.

[121]     Looking at
the values in terms of monthly amounts, the plaintiff submits that a fair
assessment of Mr. Sandhu’s missed work is 1.55 shifts missed for 9 months in
2010, 2 missed shifts per month for each of 2011 and 2012, 3 shifts missed per
month for 2013, and 2.5 shifts missed per month for 8 months in 2014.

[122]     I find
based on the number of shifts self-reported as missing, in consideration of the
nature of the records led, and in consideration of the unknown effect of the
slip and fall on his baseline absences, that a fair assessment of Mr. Sandhu’s
missed work is approximately 2 shifts per month from the time of the accident
until the time of trial.

[123]    
To fairly compensate Mr. Sandhu for his loss of wages due to the
accident, the Court must also consider the different hourly wages for day,
night and graveyard shift. As per the collective agreement, the average of
those shifts was $43.90 in 2010, $44.98 in 2011; $46.12 in 2012; $47.26 in 2013
and $48.60 in 2014.

[124]    
Taking into account the factors discussed above and taking into account
various contingencies, including the fact that there are unknown reasons for
the called replacements and accepting that he reported missing two to three
days per month, I find that an appropriate award for Mr. Sandhu’s past
loss of earning capacity is $31,000.

4.     Loss
of Future Earning Capacity

The Law

[125]     To
establish a claim for loss of future earning capacity, a court must consider
whether the plaintiff’s earning capacity has in fact been impaired by his
injuries and if so, what compensation should be awarded for the financial harm
that will accrue over time. The assessment must be based on evidence, but it is
not strictly a purely mathematical calculation.

[126]     The principles that apply in assessing loss of future earning
capacity are as  stated by Justice Low in Reilly v. Lynn, 2003 BCCA 49
at para. 101:

[101]    The relevant principles may be
briefly summarized. The standard of proof in relation to future events is
simple probability, not the balance of probabilities, and hypothetical events
are to be given weight according to their relative likelihood: Athey v.
Leonati, [1996] 3 S.C.R. 458 at para. 27. A plaintiff is entitled to
compensation for real and substantial possibilities of loss, which are to be
quantified by estimating the chance of the loss occurring: Athey v.
Leonati, supra, at para. 27, Steenblok v. Funk (1990), 46
B.C.L.R. (2d) 133 at 135 (C.A.). The valuation of the loss of earning capacity
may involve a comparison of what the plaintiff would probably have earned but
for the accident with what he will probably earn in his injured condition: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not
the end of the inquiry; the overall fairness and reasonableness of the award
must be considered: Rosvold v. Dunlop (2001), 84 B.C.L.R. (3d) 158,
2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995] B.C.J. No. 644 (C.A.)
(Q.L.). Moreover, the task of the Court is to assess the losses, not to
calculate them mathematically: Mulholland (Guardian ad litem of) v.
Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Finally, since the course
of future events is unknown, allowance must be made for the contingency that
the assumptions upon which the award is based may prove to be wrong: Milina
v. Bartsch, supra, at 79. In adjusting for contingencies, the
remarks of Dickson J. in Andrews v. Grand & Toy Alberta Ltd., supra,
at 253, are a useful guide:

First, in many respects, these contingencies implicitly are
already contained in an assessment of the projected average level of earnings
of the injured person, for one must assume that this figure is a projection
with respect to the real world of work, vicissitudes and all. Second, not all
contingencies are adverse … Finally, in modern society there are many public
and private schemes which cushion the individual against adverse contingencies.
Clearly, the percentage deduction which is proper will depend on the facts
of the individual case, particularly the nature of the plaintiff’s occupation,
but generally it will be small

[Underline emphasis added.]

[127]    
In Perren v. Lalari, 2010 BCCA 140 at para. 10-32, the
Court of Appeal conducted a review of the case law relevant
to the assessment of loss of future earning and concluded at para. 32:

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

[128]     The assessment will vary from case to case: Brown v. Golaiy,
[1985] 26 B.C.L.R (3d) 353 at para. 8 (S.C); see also Pallos v. Insurance
Corp. of British Columbia, [1995] 100 B.C.L.R. (2d) 260 at para. 27 (C.A.);
Pett v. Pett, 2009 BCCA 232 at paras. 22-25. The assessment of
damages under this heading is a matter of judgment and not of calculation. But
the plaintiff must be put in a position he would have been in but for the
injuries caused by the defendant’s negligence. The earnings approach of
assessing loss of future income is more appropriate when the loss is easily
measureable, whereas the “capital asset” approach is more appropriate where the
loss is not measurable in a pecuniary way: Perren at paras. 12
and 32.

[129]     Here,
I accept that in light of the uncertainty created by the only records available
in this case, the capital asset approach is most relevant. As per Justice Finch’s
oft cited passage in Brown at para. 8, this approach involves
considering:

·                
Whether the plaintiff has been less capable
overall of earning income from all types of employment;

·                
Whether the plaintiff is less marketable or
attractive as a potential employee;

·                
Whether the employee has lost the ability to
take advantage of all job opportunities that otherwise have been open; and

·                
Whether the plaintiff is less valuable to
himself as a person capable of earning income in a competitive market.

[130]    
The Court of Appeal recently reiterated these
considerations in Morgan v. Galbraith, 2013 BCCA 305 at para. 53,
and concluded at para. 56:

[56]      If the assessment is
still to be based on the capital asset approach the judge must consider the
four questions in Brown in the context of the facts of this case and
make findings of fact as to the nature and extent of the plaintiff’s loss of
capacity and how that loss may impact the plaintiff’s ability to earn income.
Adopting the capital asset approach does not mean that the assessment is
entirely at large without the necessity to explain the factual basis of the
award: Morris v. Rose Estate (1996), 23 B.C.L.R. (3d) 256 at para. 24,
75 B.C.A.C. 263; Mulholland (Guardian ad litem of) v. Riley Estate
(1995), 12 B.C.L.R. (3d) 248 at para. 43, 63 B.C.A.C. 145.

Discussion

[131]     In the
case before me, Mr. Sandhu intends to carry on work as a longshoreman. He
has been with the Union now for several years. There was no evidence that he
was going to seek out a different position or that he was going to seek out
different duties within his present position.

[132]     As discussed above, Dr. Hershler stated in his report that he
would encourage Mr. Sandhu to continue work, “but it is likely he will
continue to lose time from work due to pain, in the foreseeable future”. At
present, Mr. Sandhu has testified that he misses three to five days of
work per month, and that his pain, while chronic, is for the most part mild. It
is important to note, that Mr. Sharma gave uncontradicted evidence that
during at least one recent graveyard shift, Mr. Sandhu was in such pain
that he was unable to complete his assigned task. It is also important to note
that, at present, there is as much work available to Union members as they wish
to take.

[133]     Based on this evidence, I find that there is a real and substantial
possibility of future income loss, and so damages for loss of future earning capacity
are appropriate.

[134]     Turning to quantification, counsel for the plaintiff asks this Court
to accept an ongoing loss of $9,915.88 per annum, apply an income loss
multiplier of 20,893, sustain this loss through to age 65, apply contingencies,
and accept that a total award of $150,000 is appropriate. I do not accept this
approach for a number of reasons.

[135]     Firstly, the 20,293 income loss multiplier value was placed before
the court by Mr. Hassan Lakhani, an economist. Mr. Lakhani was
cross-examined on which contingencies he applied to his calculation. The only
contingency he applied was premature death. He had not used other negative
labour market contingencies, including the labour force participation rate,
which reflects the potential for voluntary or involuntary disability. Had this
factor been considered, the multiplier would have been different, though I note
that that alternative multiplier was not provided to this Court.

[136]     Further, as per my discussion in relation to past loss of income above,
I have found that Mr. Sandhu’s past losses do not amount to the total
amount claimed. This of course affects my consideration of his future annual
loss insomuch as it is extrapolated from his past losses.

[137]     In addition, while I have not found that Mr. Sandhu has failed
to mitigate his losses, his evidence is that he plans to pursue the course of
exercise recommended by Dr. Hershler. As discussed above, this course of
exercise may reduce, though not resolve, Mr. Sandhu’s symptoms such that
it is still expected that he will miss work from time to time.

[138]     As per Reilly at para. 101, my task is not a purely
mathematical one, but rather to assess the plaintiff’s losses with an overall
view to fairness and reasonableness and allowing for an appropriate contingency
deduction. I accomplish this task by considering the four Brown factors
in all the circumstances of the case.

[139]     I find that Mr. Sandhu has clearly lost the ability to take
advantage of all the job opportunities presented to him since he will likely
continue to miss some shifts due to pain. He is now a union member, and so can
reliably obtain his desired form of work whenever he makes himself available.
However, his chosen career is dependent on his physical abilities and his level
of education and limited language skills leave him with few other options.

[140]     After taking into account these factors and various contingencies, I
award $90,000 for loss of future earning capacity.

5.    
Cost of Future Care

[141]     In terms of future care, Mr. Sandhu indicated that he will be
following up with the treatment that was suggested by Dr. Hershler. In
particular, the suggested treatment includes joining a gym and retaining the
services of a personal trainer. Mr. Sandhu testified that, in the past, he
had spent approximately $350 for a yearly gym account; however, he gave no
evidence of the name of that gym or an updated membership cost. In respect to
the recommended 20 sessions with a personal trainer, no amount was given for the
associated onetime cost. In addition, Dr. Hershler had recommended that
the plaintiff use a topical cream, but again, the cost of that treatment option
was not indicated.

[142]     The test for establishing a claim of future care is set out Milina
v. Bartsch, [1985] 49 B.C.L.R. (2d) 33 at 78 (S.C.) and confirmed in Rizzolo
v. Brett, 2010 BCCA 398 at para. 74. These authorities establish that there
must be a medical justification for the claims of the future care and that
those claims must be reasonable. I find that both the onetime cost for trainer
sessions and the cost of a gym membership, as recommended by Dr. Hershler,
are recoverable under this head. Accordingly, I award the amount of $2,500 for Mr. Sandhu’s
cost of future care.

6.    
Special Damages

[143]      In regards to special damages, I accept the evidence of the
plaintiff in relation to his receipts for claimed physiotherapy fees and award
$420 for that amount.

VIII.         
Summary

[144]     In summary, I find the following are appropriate damages in this
matter:

·                
non-pecuniary damages $60,000;

·                
loss of past earning capacity $31,000;

·                
loss of future earning capacity $90,000;

·                
cost of future care $2,500; and

·                
special damages $420.

[145]    
If the parties are unable to agree as to costs,
they may arrange to address costs by contacting the registry within 60 days of
these reasons.

“Maisonville J.”