IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150122

Docket: M131922

Registry:
New Westminster

Between:

Ram Krishna Reddy

Plaintiff

And

Shawn W. Staples

Defendant

Before:
The Honourable Mr. Justice Blok

Reasons for Judgment

I.              
Introduction

[1]           
The plaintiff was injured in a car accident on February 13, 2009.  The
defendant has admitted liability for the accident, so only damages are in
issue.

[2]           
The plaintiff has ongoing problems with his right knee which he
attributes to the accident.  He had problems with that same knee prior to the
accident, though he contends those were different and less significant than the
accident-related problems.  The issues in this case are the nature of the
plaintiff’s present knee complaints, the extent to which these were caused by
the accident, and the extent to which the accident-caused injuries will affect
him in future.

II.            
Facts

A.           
Overview

[3]           
Mr. Reddy, 31 years old at the time, was the driver of a Chevrolet
Blazer that was T-boned at an intersection in Delta, B.C. when the defendant,
driving a 1997 Buick Century, ran a red light.  Evidence was led that both
vehicles were “totalled”, that is to say written off as total losses, although I
make the observation that this does not necessarily tell us much about the
severity of the impact without also knowing the value of the vehicles or the estimated
cost of repairs, neither of which was led in evidence.  The post-accident
photos of the Buick show a moderately crumpled front end, so the collision does
seem to have been a substantial one.

[4]           
Mr. Reddy said that his body was thrown forward in the collision.  Although
his forward motion was stopped by his seatbelt assembly, his right knee hit the
dashboard.  Mr. Reddy explained that since he is fairly short (5 feet, 6
inches) he puts the car seat fairly close to the steering wheel.  In
cross-examination he agreed that he was able to get out, stand and walk around
at the scene of the accident.

[5]           
Mr. Reddy’s wife and cousin were passengers in his car.  Mr. Reddy’s
immediate concern was for his wife, who was pregnant.  She was taken to Surrey
Memorial Hospital to be checked out.  Once home, Mr. Reddy said that his
neck, shoulders and back started to tighten up and his right knee was stiff and
sore.  He attended at a walk-in medical clinic the next day where he reported
right knee pain and left shoulder pain.  Mr. Reddy saw his own family
doctor, Dr. Chao, on February 16, 2009.  Dr. Chao found tenderness and
limited range of motion in Mr. Reddy’s left shoulder, decreased range of
motion in his neck, tightness and tenderness in his upper back, and tenderness
around his right knee in the medial (inside) and front areas.  Mr. Reddy
said that Dr. Chao recommended that he take time off work and undergo
massage therapy.

[6]           
Mr. Reddy takes Tylenol 3 medication for a chronic bowel condition
known as IBS.  Around the time of the accident he was taking three Tylenol 3s
per day.  When he saw Dr. Chao on February 16, 2009, after the accident, Dr. Chao
did not prescribe any other pain medication and Mr. Reddy did not ask for
any.  He said, “I didn’t have that significant amount of pain”.  In
re-examination Mr. Reddy said that he believed the clinic doctor, whom he
saw on February 14, had recommended that Mr. Reddy take Ibuprofen for any
necessary pain relief.

[7]           
Mr. Reddy, who at the time of the accident was a warehouse parts
man with Honda Canada, was off work for about two months.  He found the massage
therapy too hard on him so instead he went to physiotherapy.

[8]           
Mr. Reddy saw an orthopedic surgeon, Dr. Erik Calvert, in May
2009.  Mr. Reddy had been referred to Dr. Calvert for a specialist
consultation in December 2008, prior to the accident, as a result of
difficulties he was having with his right knee at that time.  I will refer to
these in more detail later.

[9]           
Mr. Reddy’s other injuries, which were to his back, neck and
shoulders, resolved in June or July 2009.

[10]       
In his consultation report of May 19, 2009 Dr. Calvert assessed Mr. Reddy’s
symptomatic right knee as being due to a possible medial meniscus tear.  He referred
Mr. Reddy for an MRI.  The MRI was performed on June 17, 2009.  The MRI
disclosed both a medial meniscus tear as well as a chondral irregularity.  In
his testimony at trial Dr. Calvert explained that a chondral irregularity
is an abnormality on the smooth surface that overlies the bone; here it was
located on the tip of the femur as well as on the facet of the patella, or
kneecap.

[11]       
Arthroscopic surgery was performed on October 15, 2009.  In his report
of April 18, 2011 Dr. Calvert described his surgery and findings as
follows:

He thereafter underwent right
knee arthroscopy and partial medial meniscectomy, chondroplasty of the medial
femoral condyle.  The medial patellar facet as well as the medial femoral
condyle chondral irregularity was diagnosed and confirmed.  These were dealt
with through a debridement and microfracture.  The medial meniscus was torn
which was managed with a partial medial meniscectomy.

[12]       
Mr. Reddy said that his knee was better after the arthroscopic
surgery but after returning to work within a month or so symptoms in his right
knee returned.  He found that he was unable to kneel and that bending and
squatting hurt.

[13]       
Because of ongoing problems, Mr. Reddy was referred for a further
MRI examination, which took place on November 29, 2010.  According to Dr. Calvert’s
2011 report, that MRI disclosed a possible small loose body present in the
knee.  Because of Mr. Reddy’s ongoing symptoms Dr. Calvert performed
a further arthroscopic procedure on January 27, 2011.  In his 2011 report Dr. Calvert
reported his findings on that arthroscopy as follows:

There was no loose body
detected.  The medial femoral chondral change had expanded and there was some
mild fraying with fibrocartilage coverage.  The area of chondral change was
approximately 20 x 25 mm.  As well, a fissure running obliquely across the
lateral tibial plateau was demonstrated to approximately 5 mm in depth.  He was
prescribed analgesics in the post-operative phase.

[14]       
As noted earlier, Mr. Reddy attempted a return to work with Honda
Canada about two and a half months after the car accident, as evidenced in Dr. Chao’s
report of April 21, 2009, where Mr. Reddy is reported to have said he had limitations
on his work duties due to his knee.  Mr. Reddy returned to work on
modified hours that ranged from two to four hours a day.  He found the work
hard as there were no light-duty positions available, and so he had to take
additional time off.  He again attempted a return to work in June or July 2009,
without success, and then again in August, now working four to six hours per
day.  He kept this schedule until his surgery in October 2009.  Following his
surgery he was off work until November 30, 2009.

[15]       
Mr. Reddy described his pre-accident activities.  He married in
June 2008.  His children were born in 2010 and 2011.  Since the marriage was an
arranged marriage, Mr. Reddy said he and his wife “got married, then
dated”.  He said they made a point of going out once a week.

[16]       
Mr. Reddy was active in sports.  He played occasional touch
football with friends and in soccer season practiced with a team, although he
did not play in their games.  He enjoyed other sports like rollerblading and
basketball.  He was a keen golfer and played in a golf league.

[17]       
Around the house he did the yard work and handyman-type work.  He would
help with the vacuuming and laundry and enjoyed cooking for special occasions.

[18]       
After the accident he found he could not do activities with his wife. 
They had no free time and did not go out, and this created occasional
tensions.  There was tension as well with his father (Mr. Reddy’s parents
live in the same house) who did not understand his son’s limitations.  Mr. Reddy
found it painful to participate in physical play activities with his children,
such as kicking a soccer ball or ice skating.  As for sports, Mr. Reddy
stopped playing golf for 18 months.  He played golf just four times in 2013. 
He does not participate in any of the soccer practices anymore and he is
limited to the mere tossing of a football around if football is being played.  His
social activities have been limited because his sporting activities provided a
means to interact with friends.

[19]       
When asked if there were things he now cannot do around the house, he
said “pressure washing and painting”.  Other things he can do, but with pain. 
He agreed that Dr. Chao’s note of May 11, 2009 was correct, where Mr. Reddy
was noted able to do things such as mowing the lawn and laundry.  Another of Dr. Chao’s
notes, this one dated January 19, 2010, indicated that Mr. Reddy told Dr. Chao
he had run on a track for 20 minutes in what appears to have been the week
prior.  Mr. Reddy agreed that he might well have run on a track as
indicated in the note.

[20]       
His inactivity has caused him to gain weight.  He has gone from 180 –
190 lbs. to 207 lbs.  He agreed that Dr. Chao has encouraged him to be as
active as possible, though discouraging him from impact sports and
weight-bearing at work.  Dr. Chao also encouraged him to take up swimming,
but he said he has no time available, saying “I have to tend to my knee”.  He
said he does as much as he can but he has his family to take care of.

[21]       
Mr. Reddy said that up to recently he had been taking seven to ten
Percocet pills daily, although he has now cut these back to six daily.  He said
his knee is getting worse.  His knee throbs in the cold.  He finds that at
times he cannot perform his work duties and has to take time off.  He has to
work to keep his job so he struggles through the pain and discomfort.

[22]       
In cross-examination he acknowledged as true his answer at a 2012
discovery that if he is lying around watching television all day his knee is
generally pain-free.

[23]       
His knee problems cause him to worry about his job.  He also worries
about the effect these problems have on his family, his health and his future.

B.           
Past Health Problems

Prior
Back Problems

[24]       
Mr. Reddy acknowledged that he had occasional back problems prior
to the accident, where stiffness might require him to take “the odd day off
work”.  Dr. Chao said that Mr. Reddy attended on him with complaints
of back problems in 2001, 2006 and 2007, but Mr. Reddy recovered from
these events.

Prior
Shoulder Problems

[25]       
Mr. Reddy said he was off work “a week or two” in July 2008 due to
a problem with his shoulder.  Dr. Chao said that Mr. Reddy came to
see him for neck and shoulder pain on July 9, 2008 and July 15, 2008.  Dr. Chao
said that Mr. Reddy was off work for his shoulder problem starting July 8,
2008 and he returned to work on August 5, 2008.

Prior
Knee Problems

[26]       
In the autumn of 2008 Mr. Reddy played a game of touch football and
the inside of his right knee was sore the next day.  He saw a doctor for this
in both November and December 2008.  The first visit, to a walk-in clinic, took
place on November 14.  The attending physician recorded Mr. Reddy
complaining of knee pain lasting three days, with onset coming the day after
playing football.  The physician noted further that the pain had first appeared
a month prior, again following a football game.

[27]       
Dr. Chao saw Mr. Reddy on December 16, 2008 for an unrelated
matter but the subject of Mr. Reddy’s knee was also discussed.  Mr. Reddy
told Dr. Chao that his right knee pain arose the month prior (actually, it
arose in October) after playing football and “he couldn’t move it the next
day”.  It had gradually improved since.  Dr. Chao queried “meniscal
lesion” in his chart notes.

[28]       
Mr. Reddy returned to Dr. Chao on December 31, 2008 with
complaints of right knee pain.  He reported that symptoms had been a bit better
but then he went running for 30 minutes and the next day his knee was worse.  In
addition to reporting knee pain Mr. Reddy said “it clunks to walk” and
that his knee “binds” for a second while walking.  Dr. Chao ordered an
x-ray and made an orthopedic consultation referral to Dr. Calvert.

[29]       
Mr. Reddy saw Dr. Chao’s locum physician on January 9, 2009
for an unrelated issue, but on that occasion Mr. Reddy again mentioned soreness
in his knee.

[30]       
In his testimony Mr. Reddy said that the knee pain he experienced
prior to the accident was only in the inside area of his knee, but after the
accident the pain was in the top of his knee and his kneecap.  This is the area
that is affected by cold temperature.  He said he always has pain on the inside
of his kneecap, a pain made worse by kneeling or by walking up an incline.

C.           
Current Employment

[31]       
As already noted, at the time of the accident Mr. Reddy was a parts
man or warehouseman with Honda Canada.  The work involved the unpacking and
shipping of parts and loading containers onto forklifts.  The work could be
physical as some parts, transmissions for example, could weigh as much as 150
lbs.

[32]       
Honda Canada closed its Richmond warehouse in June 2010.  Mr. Reddy’s
employment with Honda Canada ended the month earlier, specifically on May 19,
2010.  Thereafter he found work with the City of Richmond (“the City”),
effective June 21, 2010.  He was hired as an attendant in the Stores
department.  When he was hired he signed a medical certification by which he
certified that, to his knowledge, he did not have any illness, disability or
handicap that would prohibit or interfere with him doing the job he was hired
to do.

[33]       
Initially, his employment status was that of an auxiliary employee,
which meant that he had no benefits (other than being paid 12% in lieu of
benefits) and no job security.  He advanced to being a Temporary Full-Time
(“TFT”) employee a month later, which meant he was entitled to employment
benefits, although these benefits do not include disability coverage.

[34]       
TFT employees are appointed initially for a set term and then renewed
from time to time.  The renewal letters sent to, and signed by, Mr. Reddy
contain terms, evidently standard terms, that the term of the appointment is
contingent on performance of duties, budget considerations and operational
needs.

[35]       
Currently, Mr. Reddy works 40 hours per week as a TFT.  His duties
involve warehouse work and deliveries.  He receives and stocks incoming items,
and retrieves items either by hand or with a forklift.  Some items, for example
pipe fittings, can weigh up to 150 lbs.  For these items he pulls them from
their storage place and places them on a pallet.  For deliveries he has to pull
or push a manual pallet-jack with the delivery items on it from the truck to a
delivery location, for example a fire hall.

[36]       
Mr. Reddy finds the work too much for him at times.  He sometimes
has to ask for help with heavy items, something he feels does not go over well
with his co-workers.  On some delivery days he has asked to be able to defer
deliveries to the following day because he felt he could not do the delivery
that day.  He believes that in future there will be less scope to defer
deliveries in this way.  He takes pain medication during the work day.  Sometimes
he has to sit to get off his feet, and sometimes he has taken sick days.  In 2013
he used 20 sick days, although this included time off for unrelated eye
surgery.  He attributed 15 of the sick days to his knee problems.  In 2012 he
missed just one day due to those problems.

[37]       
Mr. Reddy is entitled to 19 sick days a year.  Unused sick days can
be carried over to subsequent years.  Because of this he has not had any wage
loss associated with his knee issues in either 2012 or 2013.

[38]       
He has an accommodating supervisor, who has allowed him to do more sedentary
data-entry work than some of the other employees.  Mr. Reddy thought he
could not do the work required in his job without the accommodations allowed by
his supervisor and the pain medication he takes.  In cross-examination,
however, he agreed that most of the time he is able to manage his work duties.

[39]       
Also in cross-examination Mr. Reddy agreed that, through a series
of employment contracts with the City, he has performed his work in Stores for
three and a half years, and that his employer has brought him back because of
his special skills.  He agreed that his employer was happy to have him work
there.

[40]       
At the end of a work day he goes to the couch at home and puts his feet
up for a minimum of an hour.  If he is “super sore” he will take pain
medication and if his knee is swollen he will ice it.  He said this happens two
or three times a week.

[41]       
While Mr. Reddy likes his present job, he would have liked to pursue
work in the Roads or Water departments, as these positions pay more.  The
starting pay rate in Stores is $22.94 per hour, whereas the starting pay rates
in the other two departments is $25.00 per hour.  In addition, employees in the
Roads and Water departments often work in “acting” positions on a temporary
basis, which entitles them to the increased hourly rate associated with those
more senior positions.  Mr. Reddy said that these “outside” employees also
get overtime work, one to two hours of overtime every other day, a point
confirmed by another witness, Bryan Shepherd, the acting Water department
manager.

[42]       
Mr. Reddy made some inquiries about a job change and determined
that he could move to the Water department, but he has not done so because he
feels he cannot do the trench work or crouching work associated with Water
department jobs.

[43]       
While it has been recommended that Mr. Reddy do office work of some
sort, he said he did not do very well at school, with only a C average in
marks, and he has no confidence to pursue that kind of employment.  His Stores
work was the first work he had done with a computer and he had to be trained
for it.  He feels he is not good at computer work.  However, Mr. Reddy acknowledged
in cross-examination that his supervisor has said he needed him for his
“special skills, including PeopleSoft”, a computer program used in the Stores
department, and that using that program is now easy for him, “like throwing a
ball”.

III.          
Other Witnesses

A.           
Bryan Shepherd

[44]       
As noted earlier, Mr. Shepherd is the acting manager of the Water
department for the City.  He confirmed that there have been job openings recently,
seven openings in the past year, for which they had 25 applicants.  But for his
knee injury Mr. Reddy would have been an eligible candidate and probably
would have been hired.  He would not be hired now because labouring jobs with
the Water department are very physically demanding, involving confined space
work and use of ladders, as well as a lot of crawling and heavy lifting.  Though
he did not say so expressly, it was clear that Mr. Shepherd felt that Mr. Reddy
was not up to those physical demands.

[45]       
In cross-examination Mr. Shepherd said that TFT employees in Water
and Roads have seasonal layoffs each year.  Typically the layoff time is two
months, but this can vary depending on available budget and the capital works
that are being undertaken.

B.           
Stephen Mulgrew

[46]       
Mr. Mulgrew worked with Mr. Reddy at Honda Canada and, like Mr. Reddy,
he secured work with the City upon the closure of Honda’s parts distribution
centre.

[47]       
Mr. Mulgrew was an order picker/packer at Honda Canada.  He
sometimes worked in the same area as Mr. Reddy.  The work involved a lot
of walking, bending and lifting.  Smaller items might weigh 12-15 lbs. but a
transmission could weigh 150 lbs.  In cross-examination he clarified that a
transmission would not be carried by the employee but rather would be lifted
onto a dolly lift.

[48]       
Mr. Mulgrew noted no change in Mr. Reddy’s work performance up
to the time of Mr. Reddy’s car accident.  As a union official Mr. Mulgrew
was given production records for the 40 or so employees at the warehouse, and Mr. Reddy
was “probably in the top five” in production.  This changed in June 2009, when Mr. Reddy
slipped into the bottom half of employees in terms of productivity.

[49]       
On one occasion after the accident Mr. Mulgrew assisted Mr. Reddy
in “picking” a number of automobile rims, a term I took to be synonymous with
“retrieving”.

[50]       
Mr. Mulgrew secured employment with the City in June 2010.  He is
now a Rakerman in the Roads department, which carries with it an hourly wage of
$31.94, though he has held this position just four months.  Formerly he was a
Rollerman with an hourly wage of $29.20.  In 2013 he was a Labourer 2, with an
hourly wage of $26.61.

C.           
Paul Bath

[51]       
Mr. Bath is the supervisor in the Stores department for the City. 
He is Mr. Reddy’s direct supervisor.

[52]       
There are four attendants in the Stores department, two regular
full-time employees and two TFTs.

[53]       
Mr. Reddy was given light duties – more desk work than usual – for
a couple of months after his surgery in January 2011.

[54]       
Mr. Bath said that Mr. Reddy complains of knee pain “quite
often”, perhaps once or twice a week.  On those occasions Mr. Bath tries
to accommodate Mr. Reddy by deferring Mr. Reddy’s deliveries to
another day or by getting him lifting assistance with heavy items.  These
accommodations have become more frequent.  Next year it will not be possible to
defer delivery days as was formerly done.

[55]       
On some days, Mr. Reddy goes home early, taking “sick time” for the
rest of the day.  Mr. Reddy’s physical difficulties would be a problem if
he were to be a “new hire” as an outside applicant.  If Mr. Reddy becomes
unable to do the job his TFT appointment will not be extended.

D.           
Tom Stewart

[56]       
Mr. Stewart is the director of public works for the City.

[57]       
In March 2013 Mr. Stewart wrote to Mr. Reddy concerning his
inquiry about transferring to the Water department.  He indicated he would be
happy to have him join that team, subject to his passing the physical testing
requirements.  At trial Mr. Stewart said that Mr. Reddy has a good
reputation as a worker and has sufficient seniority to secure a position.  A
transfer has not occurred because “we don’t want to set him up for failure”.

[58]       
Mr. Stewart said that the Water and Roads employees get a lot of
overtime due to the nature of their work, and they typically bump up into
“acting” positions.  Stores is the least physically-demanding department the
City has, and it does not have a lot of overtime work.

[59]       
There are 140 employees on the City’s TFT list.  In 2013 the City did
its annual layoff of TFT workers after the top 29.  Mr. Reddy is #47 on
the list, although he was likely to get an extension to the end of the year due
to department need.

E.            
Ranjani Reddy

[60]       
Ms. Reddy is Mr. Reddy’s wife.  She said that his IBS
condition was his only pre-accident physical problem.  Before the accident Mr. Reddy
participated in golf, skating, football and volleyball.  Around the house he
helped with housework (mopping, dishes and laundry) and he did all the outside
chores, such as lawn mowing and cleaning gutters.  He also cooked once in a
while.

[61]       
Ms. Reddy was in the rear passenger seat when the accident
occurred.  She was pregnant at the time.  She hit her head in the collision and
had back pain.  She was nervous and scared and wanted her husband with her at
the hospital.

[62]       
In the months following the accident Mr. Reddy was “totally
resting” at home, putting his leg up.  He did not help her as much and
complained of pain in his knee.  He was icing it a lot.  When he helped around
the house it was with difficulty.  Pre-accident Ms. Reddy did an hour of
housework each day; after the accident she did two and a half hours of
housework each day.  Mr. Reddy no longer cooks.

[63]       
When he was back at work he would come home from work and put his leg
up.

[64]       
Socially, Ms. Reddy and Mr. Reddy “used to go out a lot”
because they wanted to get out of the house and away from the in-laws.  This
stopped after the accident.  Their intimate relations suffered as well.

[65]       
The accident affected his time with the children.  They would want to
play by, for example, chasing a ball but Mr. Reddy was unable to
participate.

[66]       
Ms. Reddy said that the situation became worse after the second
operation.  When he comes home from work he is “done”.  He wakes up during the
night due to pain.  Ms. Reddy is worried about how much medication Mr. Reddy
takes, about the effects of the accident on their marriage, and what will
happen with him five or ten years from now.

IV.          
Medical Evidence

A.           
Dr. Kelvin Chao

[67]       
Dr. Chao, Mr. Reddy’s family physician, prepared a medical-legal
report dated June 3, 2011.  Mr. Reddy has been a patient of Dr. Chao’s
since 1994.

[68]       
Dr. Chao saw Mr. Reddy three days after the accident.  Mr. Reddy’s
initial complaints were neck, shoulder and right medial knee pain.  Mr. Reddy
told him that his right knee pain was worse than it had been pre-accident.  Dr. Chao
noted that the right knee was not swollen but was tender over the medial aspect
and kneecap.  Dr. Chao diagnosed soft tissue injuries to Mr. Reddy’s
neck and left shoulder area and blunt trauma to his right knee as a result of
impact with the dashboard.

[69]       
Dr. Chao saw Mr. Reddy for knee complaints on numerous
occasions throughout 2009, 2010 and 2011.  Mr. Reddy’s last visit with Dr. Chao
was on May 20, 2011.  He reported to Dr. Chao that he was still having
knee pain in the medial aspect of his right knee.  He experienced pain after
standing for 5 to ten minutes or sitting in certain positions.  He told Dr. Chao
that his activities at home were about 75% of normal and he was having knee
pain with some work activities.  At work he was lifting between 40 and 70
pounds but had knee swelling on a daily basis, which required him to ice his
knee.

[70]       
Dr. Chao prescribed an unloader brace for Mr. Reddy in March
2011 (though Dr. Chao had first recommended an unloader brace in August
2010) and on May 20, 2011 Mr. Reddy reported that he was wearing a knee
brace at work and finding it quite effective.  In his last visit with Dr. Chao
Mr. Reddy reported that his right knee was improving slowly following the
second surgery.

[71]       
Dr. Chao concluded that the injuries to the medial femoral condyle,
which is the weight-bearing surface of the femur, and medial patellar facet
were caused by the impact of Mr. Reddy’s knee on the dashboard during the
subject accident.  Although Mr. Reddy’s pre-accident symptoms caused Dr. Chao
to suspect a meniscal lesion prior to the accident, Dr. Chao felt it was
not possible to determine whether there was a right knee medial meniscus tear
prior to the accident.

[72]       
Dr. Chao felt that Mr. Reddy’s vocational disability would
worsen over time because of the degenerative nature of the condition.  At
trial, Dr. Chao said that the two MRIs and the findings on the two
operative procedures (on October 15, 2009 and January 27, 2011) showed
progressive degeneration.  He was of the opinion that the degenerative nature
of his knee condition would likely lead to worsening of his right knee symptoms
and function over time.  He recommended that Mr. Reddy use an unloader
knee brace to reduce the weight load on the joint.

[73]       
Dr. Chao first prescribed Percocet for relief of pain in January
2011.  Initially it was four or five tablets a day, but it increased to as much
as 10 a day.  Dr. Chao is trying to taper Percocet use to six a day.  He said
he reviews Mr. Reddy’s medication use every month or two.

[74]       
In cross-examination Dr. Chao agreed that Mr. Reddy might have
required knee surgery even absent the accident.  While Dr. Chao said he
would defer to the expertise of an orthopedic surgeon in some respects, he said
that he was very familiar with degenerative conditions such as osteoarthritis
and felt he had the expertise to address questions such as the anticipated
degree of degeneration and disability.  In particular, he did not agree with Dr. Calvert’s
lengthy time frame for increasing symptoms (“20-30 years”), observing that this
seemed to be inconsistent with the degree of progression of the degenerative
condition noted in Dr. Calvert’s report on the second surgical procedure. 
Dr. Chao said he also put great weight on Mr. Reddy’s contemporaneous
reports in coming to his conclusion.

[75]       
Dr. Chao agreed in cross-examination that he did not note any
swelling in Mr. Reddy’s knee until March 30, 2009 (six weeks after the
accident).  He also agreed that chondral lesions are often difficult to
diagnose because they often exhibit symptoms similar to meniscus damage symptoms.

B.           
Dr. Erik Calvert

[76]       
Dr. Calvert is an orthopedic surgeon.  He performed two
arthroscopic surgeries on Mr. Reddy’s knee.

[77]       
Dr. Calvert first saw Mr. Reddy on May 19, 2009 following a
December 2008 referral from Dr. Chao.  An MRI was conducted on June 17,
2009.  This showed both a medial meniscus tear and irregularities on the
femoral condyle and patella facet areas.  A knee arthroscopy was performed on
October 15, 2009, which confirmed the MRI findings.  The medial meniscus was
torn and unstable, so it was shaved back to a stable edge.  The patellar facet
was irregular in that it was not smooth and had crevasses.  The irregularity to
the femoral condyle was a chondral slough with dimensions of 5 mm x 5mm.

[78]       
Mr. Reddy continued to have knee problems after this surgery and a
further MRI showed a possible loose body, so a second arthroscopic surgery was
conducted on January 27, 2011.  No loose body was found.  The femoral condyle
chondral change had expanded to 20 mm x 25 mm.

[79]       
In his report of April 18, 2011 Dr. Calvert said:

It is unlikely he will have a complete
recovery from this injury.  There is a permanent chondral damage that will
never reverse itself.  His knee had demonstrated fibrocartilage formation which
is encouraging however this is a secondary healing response that does not yield
same function as native cartilage.  He is likely to have persistent medial knee
pain with weightbearing activity.  As stated above, this will impact his
location, activities of daily living and recreational activities for the
foreseeable future.  This chondral injury on the medial femoral condyle and
patella will affect his right knee permanently.  There is unlikely to be any
recovery to the extent that would allow him to engage in repetitive impact
activities.  With the spectrum of his injury including a chondral injuries as
well as the medial meniscus tear, it is likely, he will develop increasing
symptomology in keeping with right knee postraumatic osteoarthritis in the next
20-30 years.  He may require repeat arthroscopic surgery and/or total knee
arthroplasty in the future.  This would require postsurgical recovery time
which would impact occupational and recreational activities.

[80]       
Dr. Calvert wrote a supplementary report dated September 22, 2013. 
He noted that in writing his first report he had understood that Mr. Reddy
had no knee problems prior to the accident, which he now understood was
incorrect.  He provided a revised opinion as follows:

Given these facts, it is my opinion that it is probable his
initial medial knee pain from the football game in late 2008 caused a medial
meniscal injury which would correspond to medial joint line tenderness.  This
issue did improve to a certain degree until he was in the motor vehicle
accident.  Then he experienced a dashboard injury which provides a mechanism
for an anterior knee impact.  Such an impact to the anterior knee can injury
the patello-femoral joint, which corresponds to the medial femoral condyle
chondral injury.  The medial patellar facet cartilage abnormality and crepitus
may or may not be due a dashboard injury as there is a subset of the population
who do have patellar chondral irregularity.  However given his dashboard injury
it is possible the motor vehicle accident is a causative factor for the
patellar changes.  Therefore it is probable his medial femoral condyle chondral
injury and possibly the patellar chondral irregularity are due to the accident
of February 13, 2009.  In addition it is probable he did suffer an exacerbation
of his meniscal symptoms as a result of the motor vehicle accident.

The degree of symptomatology from
the medial meniscal tear can vary depending on the patient.  The majority of
patients with an isolated meniscal injury do recover a good portion of their function
post surgery.  His function did not improve significantly following surgery. 
Post meniscal injury and partial meniscectomy, there is an increased risk of
symptomatic osteoarthritis over 25-30 years.  After a chondral injury such as
the one described above, which had expanded, from one arthroscopy to another,
there is a risk of osteoarthritis as well.  His chondral injury could in fact
be described as focal or localized osteoarthritis.  He does therefore have two
reasons for the development of osteoarthritis.  The probability of his treated
medial meniscus tear causing ongoing dysfunction at work and affecting
activities of daily living is low.  The chondral injury the most likely the
cause of persistent daily pain and impairment versus the meniscus pathology
previously described.  In turn, it is also more likely that the chondral injury
to the medial femoral condyle will lead to further worsening symptoms leading
to further surgery such as osteotomy or arthroplasty.

[81]       
In cross-examination Dr. Calvert said:

a)    the meniscal
injury probably predated the accident;

b)    he recorded that
Mr. Reddy had told him he had no knee symptomatology prior to the
accident;

c)    the medial
patellar facet area is on the left side of the knee, and he would consider that
to be a separate area from the medial joint line (which was the area of pain
prior to the accident);

d)    he estimated
that the size of meniscus removal was about 20% of the whole;

e)    a femoral
condyle irregularity is typically caused by an impact, or perhaps by an
extremely forceful quadriceps muscle contraction;

f)      it
could happen in a football game only by impact, or massive muscle contraction,
and it would most likely cause a lot of pain;

g)    Mr. Reddy’s
pre-accident report to Dr. Chao of “clunking” and “binding” in his right
knee suggests a mechanical or internal derangement issue;

h)     a loss of
cartilage volume followed by articular cartilage defects may lead to further
joint degradation and possibly the development of osteoarthritis;

i)      the
ingestion of three Tylenol 3s per day would to some extent mask the amount of
knee pain Mr. Reddy was experiencing prior to the car accident;

j)      the
removal of meniscus from Mr. Reddy’s knee increases the risk of
osteoarthritis even absent any chondral injury;

k)    at the end of
his 2011 report Dr. Calvert said “I’d like to see him for follow-up in
four weeks”, but he has not been asked to see Mr. Reddy again;

l)      there
are other ways to address any worsening knee symptoms, including using an
unloader brace (which would be Dr. Calvert’s usual first recommendation), possibly
some cartilage re-growth or regeneration, and surgical options including, if
the problem area is localized as it is here, a high tibial osteotomy;

m)  other surgery that might be
considered prior to full knee replacement surgery might be unicompartmental
surgery, or partial knee replacement, which involves the replacement of about
one-third of the knee.  Candidates for this sort of surgery must have limited
arthritis, which is the case with Mr. Reddy, whose knee surfaces overall
were reasonably healthy;

n)    before any
surgery was contemplated, however, the patient would typically be advised to
use a knee brace;

o)    in his July 30,
2010 report to Dr. Chao, he reported Mr. Reddy’s complaints of medial
joint line tenderness, which is the same area of pain he reported to Dr. Chao
prior to the accident, although he also noted pain in other areas of the joint;

p)    in that same
2010 report, he noted that Mr. Reddy had told him he plays recreational
soccer, although there is pain in his knee afterwards;

q)    while meniscal
surgery can often return a patient to good functioning, this is not always the
case;

r)     with
patients who have had meniscus removed he typically recommends that they avoid
high-impact activities, including for example jumping into ditches on a regular
basis;

s)    the presence of
effusion (swelling) following an incident can be an important factor in
determining whether there is an osseous, ligamentous or meniscal injury.  The
absence of effusion in Mr. Reddy’s case introduces some “greyness” or
uncertainty to the analysis, although if only a small area is involved there
might not be an effusion;

t)      the
proximity of the chondral injuries to the femoral condyle and the corresponding
patellar facet (the underside of the kneecap) caused him to conclude that Mr. Reddy
had suffered a “kissing-type” impact.  Such an injury would not occur at that
location with a plant-and-twist injury and it is more probable that this sort
of injury would be caused by a car accident;

u)    with
osteochondrosis varying degrees of pain and stiffness are present, with the
progression of joint line congruity, sensations of locking, catching or giving
way develop.  Initially symptoms are intermittent, associated with exertion.

C.           
Dr. Peter Kokan

[82]       
Dr. Kokan is an orthopedic surgeon who examined Mr. Reddy at the
request of the defendant.

[83]       
Dr. Kokan prepared two medical-legal reports.  The first, dated
August 31, 2010, was very general insofar as he did not have available to him
any clinical records, the reports of Dr. Calvert, or any imaging records
or reports.

[84]       
In his report of September 19, 2013 Dr. Kokan noted that in 2010 Mr. Reddy
“specifically told me that his knee was not painful prior to this accident”. 
This was important information for him to know.  Dr. Kokan said that in
comparing the mechanism of injury between a twisting sports injury and a knee
injury from hitting the dash, the torque of a football injury was more likely
to produce a meniscal tear, “even a chondral injury”.

[85]       
Dr. Kokan questioned whether Mr. Reddy’s knee would have hit
the dash at all, given the likelihood that his knee would have been extended,
not flexed, in order to operate the pedals.  He concluded that all of Mr. Reddy’s
knee problems were likely due to a sports injury.

[86]       
In cross-examination Dr. Kokan was referred to a clinical note of
November 14, 2008 which indicated that Mr. Reddy “played football the day
before but no injury” and he agreed this made it less likely Mr. Reddy’s
knee problems were caused by a football injury.

[87]       
When referred to a plastic model of a knee that was a demonstrative aid
at trial, and on which the areas of the patellar and femoral condyle irregularities
had been marked by Dr. Calvert, Dr. Kokan agreed than when the joint
was extended the two marks did not correspond, but when bent to 90 degrees the
marks were much closer.  Asked if this showed that these chondral injuries were
caused by the accident, he said “except I would have expected some bruising or
swelling”.  He agreed, however, that cartilage in the knee is not
well-vascularized.  He also agreed that the marks on the model were consistent
with an impact injury, although there were other ways of having this type of
osteochondral injury, “so it is not absolute”.  He agreed that if it were
established that Mr. Reddy’s knee hit the dash “it would be much more
likely [the injury] was caused by the accident”.

D.           
Dianna Robertson

[88]       
Ms. Robertson is an occupational therapist who conducted a
functional capacity evaluation of Mr. Reddy on August 5, 2011.

[89]       
Ms. Robertson concluded that Mr. Reddy demonstrated the
ability to tolerate work activities at the light to medium work levels, with various
restrictions including lifting at various heights, carrying ability, pushing
and pulling, kneeling and crouching, walking, stair climbing and balance.  The
most severe restrictions were kneeling and crouching (“limited to rare
frequency”), and walking (“limited to rare to occasional frequency, depending
on nature of surface, use of knee brace, etc.”).

[90]       
Ms. Robertson concluded that Mr. Reddy was employable on a full-time
basis, with the potential to work in Sedentary to Light strength occupations,
though with numerous restrictions.  She considered that Mr. Reddy’s
current position might involve physical tasks beyond his safe work abilities.

E.            
John Banks

[91]       
Mr. Banks is a specialist in vocational evaluation.  He assessed Mr. Reddy
on July 8, 2013.

[92]       
In his report, Mr. Banks said that Mr. Reddy told him he is
able to perform household chores, including washing dishes, cooking meals and
laundry, although many of these tasks are done by his wife.  As for activities:

He reports he is able to walk
without limitation and plays golf and recreational volleyball occasionally.  He
tries to work out at the gym twice a week.  He also reports occasionally
enjoying a game of snooker and recreationally skate.  He is able to ride a
bicycle and hike.

[93]       
Mr. Banks concluded that, from a vocational perspective, Mr. Reddy
demonstrated sufficient strength, body dexterity and limb coordination to
perform full-time work at the lower end of the Heavy range prescribed in the
National Occupational Classification (NOC).  He noted that Mr. Reddy
exhibits protective behaviour and weight offloading when kneeling on the right
knee and on both knees, and when in a full crouch or squat.  For this reason
these activities were rated as “marginally functional”.  A test of static
pushing and pulling from a cart height of 42” was measured in the Heavy
strength range, but with increased knee discomfort.

[94]       
Mr. Banks said:

It is obvious this man is
struggling at times when he is required to weight load the right lower
extremity.  It was also observed that with heavy loading there is observable
swelling in the right knee at the top of the patella.  As the assessment day
progressed there was some slight limping and right leg offloading witnessed.  Mr. Reddy
reports this is common when he has heavier material handling to complete such
as delivering materials to firehouses each week.

[95]       
Mr. Banks said that Mr. Reddy demonstrated sufficient
strength, coordination and dexterity to safely satisfy most of the physical
demands of his current occupation, which is considered in the NOC to be a Heavy
strength occupation.  He also concluded that, due to concerns about re-injury,
realistically Mr. Reddy has the ability to safely perform work in the
Medium strength range without limitation.  In this he differed from Ms. Robertson,
whose evaluation of only Sedentary capability was, in his view, overly cautious
based on Mr. Reddy’s current performance.

[96]       
Mr. Banks used a different occupational standard (the NOC) than Ms. Robertson,
who used the U.S.-based standard, the Dictionary of Occupational Titles (DOT). 
Mr. Banks said the NOC is the preferable standard because it is the
government standard in Canada, it is more up to date (the NOC was revised in
2006 whereas the DOT was last revised in 1991) and it is important that job
classifications keep pace with occupations in the current economy.  The DOT has
a five-tier system (Sedentary to Very Heavy) whereas the NOC has four.

V.            
Positions of the Parties

A.           
Plaintiff

[97]       
The plaintiff submits that the accident caused a permanent and
degenerative chondral injury to his right knee.  In addition, he suffered
soft-tissue injuries to his back, shoulder and neck that resolved within a
year.

[98]       
The plaintiff submits that his accident-caused knee injury prevented him
from working at all until May 2009, when he began a graduated return to work. 
He was still not working full-time when he had arthroscopic surgery in November
2009.  After Honda Canada closed its warehouse in 2010 Mr. Reddy secured
work with the City, but did not seek higher-paid employment in outside
positions because of the limitations caused by his knee.

[99]       
Mr. Reddy submits that it is “highly probable” that due to his
increasing knee symptoms and limitations he will lose his job with the City in
the next few years.  Because the medical advice is that Mr. Reddy should
do everything he can to reduce the wear and tear on his knee, the plaintiff
submits that he should be compensated on the basis that he leave his current
job immediately.  The alternative work he can do would only be minimum-wage
work.

[100]     Mr. Reddy
claims damages totalling $1,256,460.90, made up as follows:

B.           
Defendant

[101]     The
defendant submits that, aside from the soft-tissue injuries to the plaintiff’s
neck back and shoulder, which resolved within months, the accident aggravated a
significantly symptomatic and debilitating pre-existing injury to the
plaintiff’s right knee.

[102]    
The plaintiff has continued to work some years after the accident and he
engages in recreational and domestic activities.  To justify such a high damages
award the plaintiff ought to have adduced current medical and functional
capacity evidence and not relied on reports that were years out of date.  Ms. Robertson
assessed the plaintiff in 2011.  Dr. Calvert also last saw the plaintiff
in 2011; although Dr. Calvert wrote a report dated September 13, 2013 this
was only to deal with the new information provided to him about the plaintiff’s
pre-accident knee problems and did not provide an updated prognosis.  As Dr. Calvert
said:

I have not assessed him in the
recent past therefore cannot provide further details on his current function. 
The previous statement [about prognosis] is based on his previous assessments.

[103]     The
defendant submits that the plaintiff’s meniscal injury was present prior to the
accident.  That injury and its repair would have led to the development of
arthritis.  For that reason Dr. Calvert would have recommended against
high-impact activity on a permanent basis.  He would not have been able to
pursue heavy City outside work in ditches or trenches.

[104]     The
defendant’s position on damages is as follows:

VI.          
Discussion

A.           
Credibility

[105]     I begin
with a discussion of the plaintiff’s credibility.  While Mr. Reddy
presented relatively well in the witness box, his credibility did not fare well
generally because in his dealings with others he has not been forthright about
his pre-accident knee problems and specifically, he did not reveal his
pre-accident knee problems to either Dr. Calvert or Dr. Kokan.  His
explanation concerning Dr. Calvert was that he assumed Dr. Calvert
knew about these problems already, but Dr. Calvert’s report of April 18,
2011 indicates that Mr. Reddy told him he did not have any pre-accident
knee symptoms.  Thus the issue does not seem to be one of mere non-disclosure
due to a misunderstanding but instead is one of active misrepresentation.

[106]     The same
thing happened with Dr. Kokan.  In his report of September 19, 2013 Dr. Kokan
said, in relation to his earlier interview of Mr. Reddy, “he specifically
told me [then] that his knee was not painful prior to this accident”.  When Mr. Reddy
was asked in cross-examination if he said that to Dr. Kokan he merely said
he did not recall.

[107]     In his
statement to an insurance adjuster made on February 16, 2009 (three days after
the accident) Mr. Reddy said the accident left him sore in his upper back,
shoulder, neck and right knee, and “I have never before injured the above
areas”.  The evidence at trial revealed that he had prior problems in all or
most of those same areas.  His explanation for his statement, given in cross-examination,
was “I had never injured myself in this way in a car accident”.  This answer
did not reflect well on Mr. Reddy.

[108]     One
incident of non-disclosure might be attributable to a misunderstanding or
miscommunication, but three incidents constitute a troubling pattern.  For this
reason I approach with caution both Mr. Reddy’s evidence and the opinions
that rely on the accuracy of the information he supplied.

B.           
Principal Findings

[109]      Having
considered all of the evidence I conclude that: (1) Mr. Reddy suffered a
meniscal tear in his right knee prior to the subject accident; (2) the meniscal
tear would have required arthroscopic surgical repair even if the accident had
not happened; (3) Mr. Reddy’s right knee struck the dashboard of his car
in the accident; and (4) the chondral injury later identified was, more likely
than not, caused by that impact.

[110]     Conclusions
1 and 2 above are fairly obvious from the evidence.  Conclusion 1 follows primarily
from the opinion evidence of Dr. Calvert and the plaintiff’s various pre-accident
knee complaints and, specifically, that his knee would “clunk” and “bind” while
walking.  Dr. Calvert concluded it was probable his pre-accident knee symptoms
were caused by a medial meniscal injury.  Conclusion 2 is based on the nature
and seriousness of the pre-accident problems, including “clunking” and
“binding” that occurred merely when walking.  After one pre-accident incident the
plaintiff could not move his knee the next day.  The symptoms were serious
enough to prompt a referral to an orthopedic surgeon as well as advice from Dr. Chao
for Mr. Reddy to modify his work activities.  Although Dr. Calvert said in
his report it is probable that Mr. Reddy suffered an exacerbation of his
meniscal symptoms (my emphasis) as a result of the accident, he did not
say that the accident caused additional meniscal damage.  These matters
satisfy me on a balance of probabilities that arthroscopic surgery would have
taken place even absent the accident.  Conclusion 3 is based on Mr. Reddy’s
evidence, and although there were credibility concerns with his testimony
generally, his evidence on this point is corroborated by the reports he made,
shortly after the accident, of his knee hitting the dashboard, both to a clinic
physician (the day after the accident) and to Dr. Chao (three days after
the accident).  Conclusion 4 follows, in part, from the earlier conclusion that
Mr. Reddy’s knee hit the dashboard.  The locations of the chondral
irregularities on the patellar facet and femoral condyle correspond when the
knee is in a bent position, but not otherwise; Dr. Calvert said that this
sort of injury is typically caused by impact, and in cross-examination Dr. Kokan
eventually came to much the same conclusion.  There is the contrary indicator of
lack of effusion post-accident, but I accept Dr. Calvert’s comment that this
is not an inevitable result of such an injury particularly if the area involved
is small, as it seems to have been here.

[111]     There was
considerable debate between the parties about the significance of Mr. Reddy’s
past knee problems.  The plaintiff asserts that his right knee had no effect on
any of his work, domestic or recreational activities, his knee was getting
better, it did not require any pain medication, and he could run for 30
minutes.  This is not an accurate picture.  On four occasions in the three
months prior to the accident Mr. Reddy complained of right knee problems
in visits to physicians.  When his symptoms first arose (after playing football)
he could not move his knee the next day.  Later, he thought his knee was getting
better but when he ran for 30 minutes his knee was made worse.  His knee would
“clunk” and “bind” when he walked.  Dr. Chao had told him he should modify
his work activities.  Contrary to the submission of the plaintiff it is clear
that his knee was getting worse.  It was because Mr. Reddy’s knee was
getting worse that Dr. Chao made the referral to Dr. Calvert in late
December 2008.  As for pain medications, Mr. Reddy was already taking a
powerful analgesic, Tylenol 3, three times a day for an unrelated condition. 
So while it is perhaps true that he was not taking extra pain medication
for his knee (as he did later), to assert that the plaintiff did not require
pain medication prior to the accident, without saying more, conveys the
inaccurate impression that he was taking nothing that had the effect of
dampening pain symptoms.

[112]     The
defendant’s characterization of the plaintiff’s pre-accident knee problems was
much closer to the mark, but I do not accept that this case involves a
“crumbling skull” situation or a situation where the plaintiff would have
suffered the same or a similar loss in the absence of the defendant’s tort.  I
consider it more accurate to say that there are two conditions in Mr. Reddy’s
knee joint that contribute to his overall knee problems, one stemming from his
pre-accident meniscal tear and its subsequent removal and repair, and the other
from the chondral injuries to the medial femoral condyle and the patellar
facet.  Although in cross-examination the defendant tried to get Dr. Calvert
to agree that the area of pain was the same both before and after the accident,
Dr. Calvert said that he considered the two areas (the medial patellar
facet and the medial joint line) to be separate.

[113]    
As to the cause of the patellar facet injury, Dr. Calvert’s report
was somewhat equivocal, but I understood him to be much more conclusive in his
testimony.  In his report of September 22, 2013 he said:

The medial patellar facet cartilage abnormality and crepitus
may or may not be due a dashboard injury as there is a subset of the population
who do have patellar chondral irregularity.  However given his dashboard injury
it is possible the motor vehicle accident is a causative factor for the
patellar changes.  Therefore it is probable his medial femoral condyle chondral
injury and possibly the patellar chondral irregularity are due to the accident
of February 13, 2009.

[Emphasis added.]

[114]     In cross-examination,
however, Dr. Calvert said that because of the location of the chondral
injuries on both the patellar facet and medial femoral condyle he concluded
there had been a “kissing” type of impact between those structures.  I took
this to mean that Dr. Calvert was now of the view that both chondral
injuries were caused by that impact.

[115]     It is
difficult to assess the contribution of each condition to the plaintiff’s
current knee symptoms because the experts addressed this issue only in general,
sometimes vague, terms.  It is reasonably clear that the meniscus damage that
was already present at the time of the accident would have caused problems for
the plaintiff, even absent the accident, until it was repaired in October 2009,
and it might have continued to cause problems after that.  As Dr. Calvert
said, “the majority of patients with an isolated meniscal injury do recover a
good portion of their function post surgery”, thus suggesting that some do
not.  Dr. Calvert said that even with just the meniscal damage and removal
he would have counselled, post-surgery, against activities that involved
repetitive impacts.  It is also clear from the evidence, however, that the
chondral injuries to his patella and medial femoral condyle are more
significant than was the pre-existing meniscal damage.  I also conclude that
the risk of degenerative arthritis associated with just the meniscal injury was
and is materially lower, and with a longer time frame, than it is with the
chondral injuries, where osteoarthritis is already present.

[116]     Doing the
best I can on an assessment of the whole of the evidence I would apportion the source
of Mr. Reddy’s current and probable future knee problems as follows: 85%
to the chondral injuries caused by the accident and 15% to his pre-existing
meniscus damage.

VII.        
Damages

A.           
Non-Pecuniary Damages

[117]     Non-pecuniary
damages are awarded to compensate a plaintiff for pain, suffering, loss of
enjoyment of life and loss of amenities.  In Stapley v. Hejslet, 2006
BCCA 34 at para. 46, the Court of Appeal set out the following
non-exhaustive list of the factors to be considered in making this type of
award:

a)   
the age of the plaintiff;

b)   
the 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, though as a factor that should not, generally speaking,
penalize the plaintiff.

[118]     I am
satisfied that Mr. Reddy, 31 years old at the time of the accident,
suffered a significant injury to his knee (the chondral injuries) as a result
of the accident.  In addition, he had pain and stiffness in his back, neck and
shoulder areas for a period of about four or five months.  His knee condition
generally (that is, involving both pre-accident and accident-related causes) is
frequently painful, restricts his activities and enjoyment of life, and causes
him stress and anxiety.  On my assessment, 85% of those problems are
attributable to the injuries he suffered in the accident.  The accident-caused
injuries are degenerative, as is his pre-existing knee condition, though the
degeneration associated with the accident injuries has already manifested
itself and the degeneration associated with his pre-accident condition is
likely to occur later, perhaps much later.

[119]     As Dr. Calvert
noted, it is likely that the plaintiff will have persistent knee pain with
weight-bearing activity.  He is likely to have increasing knee symptomatology
in keeping with osteoarthritis and he may also require further arthroscopic
surgery or even partial or full knee replacement surgery at some point in the
future.

[120]     In arguing
for an award of non-pecuniary damages of $125,000 the plaintiff refers to the
following cases as being appropriate comparators: Agar v. Morgan, 2005
BCCA 579 (where on appeal non-pecuniary damages of $125,000 were awarded); Meghji
v. Lee, 2011 BCSC 1108 ($125,000); Hall v. Cooper Industries, Inc.,
2004 BCSC 188 ($150,000, though the plaintiff’s action was dismissed outright
on appeal); Dufault v. Kathed Holdings Ltd., 2007 BCSC 186 ($110,000);
and Majchrzak v. Avery, 2013 BCSC 1626 ($95,000).

[121]     The
defendant cites Zacharias v. Leys, 2005 BCCA 560 ($60,000) and Daitol
v. Chan, 2012 BCSC 209 ($60,000), submitting that non-pecuniary damages
should be in the range of $55,000 to $65,000.

[122]     In general
I found the cases cited by the plaintiff to involve injuries or consequences of
injuries that were more serious than those in the case at bar. Majchrzak
was the most similar, the main differences being that the plaintiff in that
case was 51 years old (thus there was going to be a shorter period of pain and
suffering than in the case at bar) and both his injuries and the consequences
of those injuries were somewhat more serious than those suffered by Mr. Reddy.

[123]     In Daitol,
cited by the defendant, the 36 year old plaintiff suffered various injuries,
the most serious of which were ongoing jaw pain and left knee pain evidently
caused by meniscus damage.  Griffin J. found that the plaintiff’s knee injury
limited her in the one activity (walking) that she enjoyed prior to the
accident, although because she had a sedentary job her ability to earn income
was unaffected.  There was no mention of the possibility of future surgery as there
is in Mr. Reddy’s case.

[124]     The other
case on this damages issue cited by the defendant, Zacharias, involved a
plaintiff with a long history of knee problems.  She had cartilage removed from
her knee while in her 20s and underwent a high tibial osteotomy at age 36.  She
was 49 years old at the time she was injured in the subject accident.  An award
at trial of non-pecuniary damages of $80,000 was reduced to $60,000 to reflect
the prospect that that the plaintiff’s pre-existing knee problems would have
required further surgery in any event of the accident.  Aside from the case
being a bit dated, Zacharias is not of great assistance because: (1) the
case is really not about assessment of non-pecuniary damages as such but is
more to do with what reduction should be made to a trial judge’s assessment for
other reasons; and (2) the plaintiff in that case had a complicated
pre-accident history with her knee that was much more serious than Mr. Reddy’s
pre-accident knee history.

[125]     Based on
the cases cited and a consideration of all of the Stapley v. Hejslet
factors, and bearing in mind the 85-15 apportionment made previously concerning
the cause of Mr. Reddy’s ongoing knee problems, I consider that
non-pecuniary damages are appropriately assessed in the amount of $80,000.

B.           
Past Income Loss

[126]     The
defendant does not dispute the figure of $12,715.92 advanced by the plaintiff under
this damages heading but says it must be reduced to reflect the effect of
taxes.  The plaintiff says this sum already includes an appropriate adjustment
for income taxes.  I do not have any note that this debate was resolved. 
Either the claimed figure is net of income tax or it is not.  I conclude that
the appropriate course is to award the sum of $12,715.92, but to grant leave to
the defendant to address this issue further if need be.

[127]     The
plaintiff also claims for past prospective wage loss and past prospective loss
of overtime pay, based on the inability of Mr. Reddy to avail himself of
higher-paying City positions in the Roads or Water departments.  This is much
heavier work than in Stores and it involves activities such as jumping in and
out of ditches and crawling or kneeling.  Even if the accident had not happened
Dr. Calvert would have advised Mr. Reddy against this sort of work
because of his pre-accident meniscus damage and subsequent surgery.  I conclude
that it is likely Mr. Reddy would have followed Dr. Calvert’s advice
and so he would not have pursued this heavy work and risked further damage or
degeneration to his knee, even if the accident had not happened.  Although
there is a chance that Mr. Reddy might not have followed this advice, such
that an award might be appropriate for that prospect, I conclude that even if
this accident had not occurred, engaging in heavy outside work would likely increase
or accelerate the prospect of degenerative arthritis and related problems.  This
would mean that what Mr. Reddy might gain at the front end of his working
career could well be lost nearer the end of it.

[128]     I assess
at 20% the chance that Mr. Reddy would have gone against his doctor’s
advice and obtained a heavy outside job with the City.  He quantifies his
entire past extra wage/overtime claim at about $50,000, so that amount multiplied
by the chance it would come about results in the figure of $10,000.  The potential
adverse effect of the heavy labouring work on his later-year earnings is not
mathematically quantifiable, but even if the early gain was equal to the later
loss there would be a difference due to the present value effect, that is, the
recognition that awards for future losses must be discounted to reflect the
notion that invested money accrues value over time.  Doing the best I can on
the basis of the available evidence I assess damages for the lost opportunity
to earn increased wages and overtime pay at $5,000.

C.           
Future Income Loss/Loss of Income-Earning Capacity

[129]     In Perren
v. Lalari, 2010 BCCA 140, the court reviewed various authorities dealing
with loss of future earning capacity and concluded as follows:

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

[Emphasis in original.]

[130]     I am
satisfied that there is a real and substantial possibility of a future event
leading to an income loss.  These possible future events include the following:
(1) Mr. Reddy’s knee symptoms may cause him to lose time from work that is
in excess of the sick days he has available; (2) Mr. Reddy may require
knee surgery of some sort, ranging from arthroscopic surgery to full knee
replacement, thus disabling him from work for a time; and (3) whether following
surgery or otherwise, Mr. Reddy may be unable to carry on with his present
job and will be forced to find other work, possibly requiring a period of time
to retrain.

[131]    
The plaintiff submits that this case lends itself to the mathematical or
“earnings” approach because his only viable option is to immediately leave his
job and take up minimum-wage work and because the “evidence clearly establishes
the precise rates of pay that the Plaintiff is currently earning as compared to
the acting and base rates of pay available to him from the same employer”.

[132]    
The defendant submits that the earnings approach is inappropriate in
this case because the multitude of uncertainties and contingencies makes the
loss too difficult to measure this way.  Instead, the defendant says that the
“capital asset” approach should be used.

[133]     I agree,
substantially for the reasons submitted by the defendant, that the earnings
approach is inappropriate in this case.  There are too many uncertainties. 
Some of those uncertainties are as follows:

a)    although aspects
of his current job aggravate Mr. Reddy’s knee symptoms, to the date of
trial he had continued in that employment (a period of three years), albeit with
the help of an accommodating employer and with the aid of medication and rest. 
He told the vocational consultant, Dean Powers, that he wanted to maintain his
present job with the City and eventually move into a more senior position.  I
conclude that it is likely that Mr. Reddy will continue with his City job
for the meantime, at least.  This evidence contradicts the plaintiff’s
submission that his only viable option is to leave this job and take up a
minimum wage position.  It may be that it is his most conservative
option, but it is not his only viable option, and it is not the option Mr. Reddy
is likely to pursue in the short to medium term;

b)    Mr. Powers
recommended an assessment of Mr. Reddy’s workplace by an occupational
therapist for recommendations about equipment and body positioning, etc. that
would reduce the loading or other adverse effects on Mr. Reddy’s knee.  In
this regard I note Mr. Reddy said the main work activity that bothered his
knee was pushing and pulling a loaded manual pallet jack when making deliveries
to City facilities.  An electric pallet jack would be a likely solution as it
would eliminate the physical aspect of this activity.  In short, an assessment
by an occupational therapist may well address aspects of his work such that his
employment is more likely to be maintained and maintainable in the long term;

c)    the potential alternative
vocations identified by Mr. Powers varied widely in their nature and
associated incomes.  Some, perhaps most, will involve retraining.  It is not
simply a matter of only one alternative — minimum-wage employment — as submitted
by the plaintiff.  The calculations would be many, and would involve much
forecasting if not outright speculation;

d)    the degree to
which Mr. Reddy’s knee will deteriorate due to osteoarthritis, and the
time frame for that, are matters that are not known with any degree of
certainty.  The most concrete evidence on the subject is Dr. Calvert’s
assessment of a 20 to 30 year time frame.

[134]     If the
future loss cannot be measured in a pecuniary way, as in the case at bar, the
proper approach is to assess the loss as a form of capital asset by considering
the factors described in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353
(S.C.).  In that case the Court said the proper inquiry is whether:

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

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

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

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

[135]     Brown
v. Golaiy was endorsed by the Court of Appeal in Kwei v. Boisclair
(1991), 60 B.C.L.R. (2d) 393.

[136]     From the
evidence it is clear that Mr. Reddy meets all four of the Brown v.
Golaiy elements.  The real debate is the extent of the loss.

[137]     The
plaintiff submitted that Mr. Reddy is struggling to keep up with the
demands of a job that is well beyond his physical capabilities, a job that he
should end immediately for health reasons, and if he does not resign
immediately he will likely be let go by the City within the next few years
anyway.  His evidence was that his knee was getting worse.  For the reasons given
on credibility discussed earlier, I view with caution both Mr. Reddy’s evidence
and the opinions that rely on his evidence.  There is force in the defendant’s
argument that since the expert opinion evidence supporting the plaintiff’s case
was over two years old by the beginning of trial it was too dated to be a
reliable basis for an assessment of Mr. Reddy’s future capacity.  When Dr. Chao
was asked at trial about his more current (post-2011) observations,
observations which of course are based in large measure on Mr. Reddy’s own
reports, he did not say Mr. Reddy’s condition was getting worse; instead
he merely said “his condition has not improved”, though he did say that Mr. Reddy’s
Percocet use had increased (which Dr. Chao was in the process of
decreasing).  Dr. Chao also said he “still recommended an unloader knee
brace”, which introduced an element of uncertainty as to whether Mr. Reddy was
continuing to use a knee brace, but since that evidence was unclear, and since
there was other evidence indicating he had been using a knee brace at some
points at least, I draw no conclusions from it.

[138]     However,
other evidence does tend to undermine the plaintiff’s claim.  Dr. Calvert
said he last saw Mr. Reddy in February 2011 and at that time he asked that
Mr. Reddy return in four weeks.  He did not.  Mr. Reddy’s failure to
return to the orthopedic specialist is, in the circumstances, inconsistent with
his assertion of substantial workplace difficulties and suggests that Mr. Reddy’s
capacity for his present work is not as bad as he portrays.

[139]     This is
not to say that Mr. Reddy is not without difficulties with his knee at
work.  Ms. Reddy testified that “things got worse” with her husband in
2012 and 2013 in that he is often “done” after work, which I took to mean “done
in”.  I accept her evidence.  She also noted that Mr. Reddy had missed
more time from work than in previous years, though based on the dates in some
of the experts’ reports at least some of the days lost appear to have been
litigation-related.

[140]     There is
some objective evidence in the form of testing by Ms. Robertson and Mr. Banks. 
Ms. Robertson’s tests were done in August 2011 so again that assessment
was somewhat out of date.  Mr. Banks’s tests were done in July 2013.  When
read closely I did not detect a lot of difference between the opinions of the
two evaluators, though based on the ongoing performance of the plaintiff in his
current job I agree with Mr. Banks’s conclusion that an evaluation of Mr. Reddy’s
capabilities as being merely in the Sedentary category, which was the opinion
of Ms. Robertson, was overly cautious.

[141]     As noted
earlier, I accept that there is a real and substantial possibility of future
events, detailed earlier, that may lead to an income loss.  These potential
future events vary in terms of their financial consequences.  Some of the
numbers generated from the economist’s report illustrate the magnitude of the
potential loss in certain scenarios.  If Mr. Reddy maintains his
employment for five more years and then secures minimum-wage work, his future
loss will total $472,000 on a present-value basis.  If he continues in his
present job for 10 years and then gets a minimum-wage job, the loss is
$326,000.  The 15-year and 20-year figures are $202,000 and $101,000
respectively.  Of course these numbers are merely illustrative because they are
based on only one type of scenario that would bring about an income loss. 
Other scenarios include work time lost due to retraining, for surgery and
subsequent recovery, or due to change of employment — at some point in the
future — to a job that pays more than minimum wage.

[142]     The
plaintiff also claims damages for the loss of future earning capacity relating
to the income he might have earned had he worked in one of the outside
occupations with the City.  The analysis of this claim is similar to the
earlier analysis of the same opportunity.  The meniscus surgery would have
taken place even without the accident and Dr. Calvert would have told Mr. Reddy
not to take on work that involved repetitive impacts to his knee.  Again I
conclude that Mr. Reddy would likely have followed Dr. Calvert’s
advice, although the accident meant he lost the opportunity to ignore his
doctor’s advice and take an outside job anyway, with its attendant long-term
risks to his knee.

[143]     Doing the
best I can in the circumstances, I assess damages for loss of future
income-earning capacity at $150,000.  Although there is no arithmetic basis for
this sum, in a very general sense it is derived from: (1) the sums involved in
a medium-term loss but with higher residual earnings; (2) a modest element for
loss of overtime and higher-wage work (discounted by the 80% chance he would
not have made this choice and by factoring in the risk of a concomitant loss
due to excessive knee wear and tear near the end of his working career); and
(3) taking into account the 85-15 apportionment between accident-related causes
and pre-accident causes.

D.           
Cost of Future Care

[144]     The
plaintiff claims for the future costs of the following: (1) psychological
counselling; (2) physiotherapy; (3) an annual fitness membership; (4) the annual
pressure-washing of his house; (5) the painting of the interior of his house
every five to seven years; (6) periodic knee brace strap replacement; and (7)
medications.

(1)      Psychological
Counselling

[145]     The
recommendation for psychological counselling came from Ms. Robertson, the
functional capacity evaluator.  I would not have expected that an occupational
therapist would give, or be able to give, such a recommendation as this is
usually the purview of a plaintiff’s family physician, other medical
practitioner or a mental health specialist.  I am not satisfied Ms. Robertson
has the expertise to assess the need for psychological counselling and
therefore I conclude that basis for this item has not been made out.

(2)      Physiotherapy

[146]     This is
based on the 2011 recommendation of Dr. Chao, where he said “His future
treatments may include physiotherapy as necessary”.  The monetary claim for
this expense ($7,800) is presented on the basis that physiotherapy will be
required six times per year to age 80 or so.  Dr. Chao’s recommendation is
out of date and is too vague to rely on for that type of arithmetic calculation. 
I accept, however, that should Mr. Reddy require further knee surgery then
physiotherapy will likely be required.  I assess this amount at $750, taking
into account that this expense will likely not be incurred for some time.

(3)      Annual
Fitness Pass

[147]     There is
no specific recommendation for this in the evidence.  Mr. Pakulak, the
occupational therapist who prepared a cost of care report, simply says “the
importance of ongoing exercise efforts has been stressed throughout the medical
documents”.  I do not see that Mr. Reddy needs a fitness pass every year
until he is 65 or older in order to stay physically active.

(4)      Annual
Pressure Washing of House

[148]     Mr. Reddy
said that this was one of the two household jobs that he cannot do anymore.  Mr. Reddy
did not explain how his knee problems affect his ability to run a pressure
washer and I am unable to understand why he would be restricted from this
activity.  This is disallowed.

(5)      House
Painting

[149]     Mr. Reddy
said that their house was built in 2006 and he planned to paint it every five
years.  At some point after the accident he was unable to paint the interior of
the house so he hired someone to do it at a cost of $6,160.  On an ongoing
basis, Mr. Reddy claims the cost of repainting the interior of the house
every five to seven years.

[150]     Mr. Reddy
said before his injury he could paint the whole house in two weekends, but now
he is too tired from work and he needs the weekends to recover.  Mr. Reddy
was questioned closely on this subject and, it must be said, did not come off
well.  Counsel asked him why he could not paint just one room at a time, to
which he answered, “Who wants to paint one room at a time for the next year?” 
It was notable that he did not mention knee issues that interfered with
painting but instead he spoke only of the unsatisfactory (and highly
exaggerated) delay in completing the work by painting just one room at a time.

[151]     I suspect
that Mr. Reddy’s reluctance to engage in painting and pressure washing
relates more to bilateral wrist and shoulder pain (mentioned in Mr. Pakulak’s
report) than it does to his knee problems.  The basis for this claim has not
been made out.

(6)      Knee
Brace Strap Replacement

[152]     On the
assumption that Mr. Reddy is using or will use a knee brace, the need for this
has been established.  The cost is about $140 every five years, with an
associated present value of $814.

(7)      Medication

[153]     I am
satisfied that Mr. Reddy has an ongoing need for some pain medication.  At
present levels he says the cost is about $2,000 per year, mostly for Percocet. 
The defendant notes that there is no current medical evidence of the need for
this medication.  I share this concern, particularly in view of the references
in Mr. Pakulak’s report to the significant pain Mr. Reddy has in both
shoulders (“constant burning and occasional shooting pain”) and both wrists
(“intermittent and activity dependent”), neither of which is related to the
subject car accident.

[154]     In his
report of June 3, 2011 Dr. Chao said he first prescribed Percocet in February
2011 to address calf pain — notably, not knee pain — experienced by Mr. Reddy
after his January 2011 surgery.  In his testimony Dr. Chao said he prescribed
Percocet for “pain control”.  Although he did not expressly say it was for knee
pain (and obviously it was not, at least at first, given what he said in his
report), his testimony at that point was to do with knee pain and I conclude
that the continuing prescriptions of Percocet were at least in part to address
ongoing knee pain.  The initial prescription was for four or five tablets a
day, though Mr. Pakulak testified Mr. Reddy told him (presumably on the date of
assessment, November 18, 2011) he only took three Percocets a day.  At trial Dr.
Chao said he was trying to reduce Mr. Reddy’s consumption of Percocet to
six a day.

[155]     These matters
make it very difficult to assess this future care cost.  Doing the best I can
on the basis of somewhat unsatisfactory evidence, I conclude that medication
cost related to accident-related knee injuries over Mr. Reddy’s expected
lifetime will average $1,000 per year.  The present value of that total expense
is $21,731.

(8)      Summary
of Future Care Costs

[156]     The total
of the future care costs awarded is $23,300, rounded.

[157]     There is
one further matter.  Earlier I mentioned the possibility that an electric
pallet jack might relieve Mr. Reddy of the burdens of the one work
activity that bothers his knee the most.  Leave is granted to the plaintiff to
address a claim for the cost of this item if it turns out to be recommended, by
an occupational therapist or otherwise, and acceptable to the employer.  Of
course the parties are free to come to an agreement on the matter.

E.            
Loss of Housekeeping Capacity

[158]     The
plaintiff claims $45,000 under this head of damages.  The plaintiff bases this
claim on the evidence that Ms. Reddy now does more hours of housework each
week than she did prior to the accident.

[159]    
The principles relating to an award for loss of housekeeping capacity were
recently summarized by Dardi J. in X. v. Y., 2011 BCSC 944, at paras. 246-248,
as follows:

[246] In Dykeman v. Porohowski, 2010 BCCA 36, Newbury
J.A. at para. 28 summarized the governing principles with respect to
awarding damages for the loss or impairment of housekeeping capacity. She
affirmed that damages for the loss of housekeeping capacity may be awarded even
though the plaintiff has not incurred any expense because housekeeping services
were gratuitously replaced by a family member. Recovery may be allowed for both
the future loss of the ability to perform household tasks as well as for the
loss of such abilities prior to trial. The amount of compensation awarded must
be commensurate with the plaintiff’s loss: Dykeman at para. 29.

[247] In McTavish v. MacGillivray, 2000 BCCA 164, the
Court of Appeal endorsed the replacement cost approach to the valuation of lost
housekeeping capacity. Madam Justice Huddart’s comments at paras. 67-68
are instructive:

[67] … The loss of the ability to
perform household tasks requires compensation by an award measured by the value
of replacement services where evidence of that value is available.

[68] In my view, when housekeeping
capacity is lost, it is to be remunerated. When family members by their
gratuitous labour replace costs that would otherwise be incurred or themselves
incur costs, their work can be valued by a replacement cost or opportunity cost
approach as the case may be. That value provides a measure of the plaintiff’s
loss.

[248] In assessing the damages on the replacement cost
approach, the court must carefully scrutinize the gratuitous services done by
the family member. A relatively minor adjustment of duties within a family will
not justify a discrete assessment of damages: Campbell v. Banman, 2009
BCCA 484 at para. 19. In Dykeman at para. 29, Madam Justice
Newbury cautioned that:

Instead, claims for gratuitous services must be carefully
scrutinized, both with respect to the nature of the services – were they simply
part of the usual ‘give and take’ between family members, or did they go ‘above
and beyond’ that level? – and with respect to causation – were the services
necessitated by the plaintiff’s injuries or would they have been provided in
any event?

[160]     In Ladret
v. Stephens, 2013 BCSC 1999, at para. 103, Sigurdson J. noted that
claims of this type are invariably difficult to assess.

[161]     The
evidence on this issue is not extensive.  Mr. Reddy said that before the
accident he helped with household cleaning and other chores; since the accident
he tries to help but does not do as much as before.  Ms. Reddy said that
in the months after the accident Mr. Reddy was only able to help a little,
and with difficulty.  She said she was doing the housework “all by myself”.  Before
the accident she did housework for one hour each day; now she does 2.5 hours of
housework each day.

[162]     Mr. Banks
said that Mr. Reddy told him he is able to perform household chores,
including washing dishes, cooking meals and laundry, although many of these
tasks are done by his wife.  In cross-examination Mr. Banks agreed that Mr. Reddy
said he can do these things, but “with pain”.

[163]     The
plaintiff’s calculation of this claim appears to be based on a misunderstanding
of Ms. Reddy’s evidence about the number of extra hours she puts in.  Leaving
that aside, the claim is presented simply as an arithmetic calculation of hours
times $15.00 per hour until age 80, without any consideration of present
values.

[164]     I accept
that Ms. Reddy has borne a greater share of the household tasks as a
result of the accident, and I accept that this will continue.  This was more
than a minor adjustment or typical “give and take” between family members. 
Bearing in mind both the 85-15 causation apportionment previously discussed and
the fact that the award here ought to be based on present-value concepts, and
following the general approach adopted in Ladret, I assess this aspect
of damages at $7,500.

F.            
Special Damages

[165]     The
plaintiff claims sums totalling $10,483.30.  The only disputed amount is the
cost of interior house painting ($6,160).  This item is rejected on the basis
outlined earlier.  The amount allowed is $4,323.30.

VIII.      
Summary

[166]     The
plaintiff is awarded the following sums:

[167]     The
parties have leave to address two items, past wage loss (whether the figure is
net of taxes), and under cost of future care, the cost of an electric pallet
jack.

[168]    
The plaintiff will have his costs on the ordinary scale unless there are
matters which the parties wish to draw to my attention.

“Blok
J.”