IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150211

Docket: S22880

Registry:
Chilliwack

Between:

Kenneth Joseph
White

Plaintiff

And

Harry Wiens

Defendant

Before:
The Honourable Mr. Justice Truscott

Reasons for Judgment

[1]            
Mr. White was injured in a motor vehicle accident that took place
on December 31, 2009 at the intersection of Evans Road and Stephensons Road in Chilliwack,
British Columbia, while he was stopped on Evans Road to make a left-hand turn
onto Stephensons Road. At that point his vehicle in which he was the driver was
rear-ended by a vehicle driven by the defendant Mr. Wiens.

[2]            
Mr. Wiens has admitted liability for the accident and any resulting
injury to Mr. White and the trial proceeded solely on the issue of the
quantum of damages to which Mr. White is entitled as a matter of law.

[3]            
At the time of the accident Mr. White was 49 years of age and
unemployed.

[4]            
He had last been employed at Coast Mountain Dairy Ltd. where he had
worked as a cleaning in place operator from June 8, 2009 to November 4, 2009.

[5]            
He was terminated from that employment and told that while he was a good
worker he did not get along with other employees and was creating a stressful
environment. He was told he was not working out and was dismissed.

[6]            
Mr. Shippman was Mr. White’s supervisor at Coast Mountain
Dairy Ltd. and he says Mr. White was a good worker, was able to do the
physical aspects of his job without difficulties and got along with the other.

[7]            
He says Mr. White’s job was to clean, scrub and reassemble
equipment after it was sanitized. Some of the equipment was moderately heavy
and he did not see Mr. White have any problems with bending, stooping,
crouching or kneeling daily in the job.

[8]            
He also heard of no complaints of Mr. White not getting along with
other employees. He says Mr. White was easy to get along with and was not
aggressive and he has no idea why Mr. White left in November 2009.

[9]            
Mr. White earned $15,261.37 in this employment and received $760 in
lieu of notice. He disputes the allegation of the employer as to the reason why
he was dismissed.

[10]        
Prior to Coast Mountain Diary, he had worked as a pasteurizer for
Vitalus Nutrition Inc., between January 12, 2009 and April 12, 2009, earning
$7,527.51 in income. His job was a physical one in the production department and
he was let go when he was told his services were no longer required.

[11]        
Ms. Vander-Wyk was the plant manager for Vitalus and hired Mr. White
through I S 2 Staffing Services. She says there were six employees in the
pasteurizing department, and after three months of Mr. White’s work she concluded
he did not fit into their work culture.

[12]        
She says he had some aggressive behaviour within the group of six
although there were no documented complaints from the other employees.

[13]        
She agrees he was a hard worker. His job had a light to moderate
physical requirement and he never complained of back problems.

[14]        
Prior to Vitalus Mr. White worked for three days between November
14, 2008-November 17, 2008 for Sunset Food Processors, before being let go as
not working out, although Mr. White says this was not a good fit for him.

[15]        
Prior to this Mr. White had worked long-term for Saputo Foods from
February 6, 1981 to February 7, 2008. He had been a production supervisor since
2006 earning approximately $70,000 per year with benefits.

[16]        
He was terminated from this employment over a workplace harassment issue
with a younger female employee.

[17]        
Mr. Branch was a fellow worker at Saputo with Mr. White as of
1984. He did not see Mr. White have any difficulties with his neck and
back performing any of his responsibilities. He says Mr. White got along
with other employees and there were no complaints about him.

[18]        
Mr. Branch also played softball and golf with Mr. White and
says he observed no problems Mr. White had with his neck or back during
these sports.

[19]        
He says as a production supervisor Mr. White’s primary duty was
stabilizing and overseeing the work force with not a lot of physical work
required of him.

[20]        
Mr. White was given a buy-out amount from Saputo of approximately
$90,000 in 2008.

[21]        
Mr. White is married to Connie White and at the time of his
termination from Saputo lived with her in their own single-family dwelling.
They are the parents of two adult children.

[22]        
Subsequent to his termination from Saputo, Mr. White decided to
take some time off before looking for other employment, in the dairy industry,
which he eventually took up with Sunset Food Processors for three days in
November 2008, followed by Vitalus for three months, and then Coast Mountain
Dairy for five months before his motor vehicle accident of December 31, 2009.

[23]        
Prior to his motor vehicle accident, Mr. White had applied at
Rogers Food, a grain company, a field in which he had no experience. He was
sent for a pre-employment physical evaluation to Fraser Valley Physiotherapy
and Rehabilitation Centre where he underwent this assessment on January 15,
2010, after his motor vehicle accident.

[24]        
The assessment was conducted to determine Mr. White’s ability to
perform the physical demands of work as a flour-packer and warehouseman at
Rogers Food. This evaluation determined Mr. White had no physical
limitations in performing the physical requirements of the position.

[25]        
The pre-employment evaluation reported that Mr. White presented
with overall general good health and did not report any significant previous
illnesses or any significant back injury or other significant physical injuries
in his history.

[26]        
Mr. White did report his motor vehicle accident of December 31,
2009 resulting in some lumbar, cervical and left-shoulder challenges, but
reported that he had fully recovered and was not limited in any way. He said he
was physically healthy with no present ailments and no limitations with regards
to any physical activity.

[27]        
A general musculoskeletal screening assessment was performed as part of
this evaluation and it reported a normal range of motion of neck, mid and low
back, left arm joints bilaterally, normal functional strength for major muscle
groups, a normal neurological evaluation for cervical and lumbar nerve roots,
negative tests for carpal tunnel syndrome and wrist tendonitis, and normal pinch
grip strength for both hands and all fingers.

[28]        
The summary of the evaluation reported that Mr. White performed all
his testing with good biomechanics and without any reported or observed
difficulties. It was reported his heart rate exceeded the maximal acceptable
limit several times but despite this he was able to complete each task as
requested and did not present with any safety or biomechanical concerns.

[29]        
This evaluation was signed by a registered physiotherapist and a
registered kinesiologist. Neither of these authors was called to give evidence
at trial.

[30]        
Mr. White denies being able to do the physical evaluation of
January 15, 2010 with any ease. He says it was physically painful for him
because of his motor vehicle accident injuries to do the required testing but
he persevered on the tests after taking a lot of medication, lied on the
questions of his physical capabilities, and only indicated he had recovered
from his motor vehicle accident in the hopes of getting the employment at
Rogers Food. He did not get the job.

[31]        
After the accident he says he was dazed, and for the next day or two
mostly slept prior to seeing his family doctor, Dr. Chow. He says his neck
and low back were bothering him, he had some headaches, his hands were tingling
and he had sciatica down his left leg to his foot.

[32]        
He says the tingling in his hands resolved fairly quickly but by the
time of trial his neck and back pain were intermittent, he still had sciatica
and he developed headaches when he had to look right.

[33]        
Mr. White is a long-standing power lifter who prior to his motor
vehicle accident attended the local fitness centre on a daily basis to lift
weights and improve his physical fitness. He has a Grade 12 education.

[34]        
He says at that time of the accident he weighed 200-205 lbs but at trial
had added another 20 lbs or so over his 5 foot 8 inch frame.

[35]        
He also says he played golf, although he was a bit of a duffer, as well
as played softball, hockey and squash until 2008.

[36]        
He says he never had any back issues following a flare-up of his back while
playing squash in 2007, until the motor vehicle accident of December 31, 2009.

[37]        
Mr. White says when he had this flare-up with his back playing
squash in 2007 he was referred by his general practitioner at that time to Dr. Medvedev,
a neurologist, who reported on March 19, 2007 that Mr. White came to him
with a long-standing history of back pain and reported the first time he had
severe pain in his low back radiating down his left leg was approximately 15
years prior, although the pain resolved spontaneously within a few months.

[38]        
He agrees he told Dr. Medvedev that two years prior he had been
playing squash and suddenly developed pain in his low back radiating down the
left leg and since that time the pain had been present virtually daily with
some days better than others but on most days causing him trouble in walking
because of the back pain.

[39]        
Dr. Medvedev recommended a MRI of Mr. White’s lower lumbar
spine while prescribing a pain medication, Lyrica.

[40]        
The MRI was done on July 25, 2007 with the result showing moderate to
severe multi-level degenerative disc disease with severe disc space narrowing,
particularly prominent at L2-3, L3-4, L5-S1 levels, with concentric disc bulges
resulting in mild canal stenosis and mild mass effect on some of the exiting
nerve roots.

[41]        
Following the motor vehicle accident and following his failure to obtain
the Rogers Food employment, Mr. White applied for the position of cheese
manufacturing supervisor at Alberta Cheese Company Ltd. in Calgary, Alberta. He
was offered an interview in person in Calgary and following that interview was
offered employment.

[42]        
The employment offered on March 8, 2010 was a full-time permanent
position as a plant supervisor/cheese maker with an early morning start at 2:00
a.m., a rotating shift with the other cheese maker on shifts of two weeks at
2:00 a.m., followed by two weeks at 5:00 a.m.

[43]        
A starting salary was offered of $5,000 per month, a performance review
after six months, dental and health premiums to be paid by the company after
six months, moving expenses to be paid after three months, and two weeks
holidays after one year of employment.

[44]        
Unfortunately Mr. White countered this offer instead of accepting
it and this resulted in the company walking away and Mr. White moved on
with his job search.

[45]        
The next employment he took on was for Domino’s Pizza as a production
team leader but he only lasted a little over one week between November 8, 2010
and November 19, 2010 before he quit because he says he found the physical work
he was required to do to be too much for his back condition.

[46]        
In cross-examination he denies having to lift 700, ten pound trays a
shift and 52, 80 pound racks a shift, although that was exactly what he said on
his examination for discovery.

[47]        
He says that since Domino’s Pizza he has continued to look on the
internet for dairy industry jobs but has found nothing up to the time of trial.
He has no memory of how many jobs he has applied for.

[48]        
Ms. White has been diagnosed with cancer although she continues to
work.

[49]        
Mr. White says that prior to his motor vehicle accident he had no
intention of retiring at age 65, although on his examination for discovery in
January 2012 he said 65 years of age has always been his goal for retirement.

[50]        
He now says that with his wife’s medical issues he has no idea when he
can financially retire.

[51]        
After the motor vehicle accident he and his wife went to Mexico in March
of 2011 to an all-inclusive resort for seven days but he says he was not able
to do all the activities he wanted to do on that trip.

[52]        
On his examination for discovery he was asked the same question and said
he could do all the activities he wanted to do, which was lie around.

[53]        
At trial Mr. White says he is on CPP permanent disability payments
of $1,185 per month.

[54]        
Friends and acquaintances of Mr. White confirm that prior to his
motor vehicle accident they did not observe any problems he had with his neck
or back areas. These include the Snutch brothers who worked out with Mr. White
in the weight room, golfed and played squash with Mr. White and saw no
problems anywhere with his neck or back.

[55]        
They do say after the motor vehicle accident, he put on weight and
squirms when he sits for a long period of time.

[56]        
Mr. Davidson has known Mr. White since 2005 and also worked
out with Mr. White in the gym prior to the accident, and says he never
observed any problems with Mr. White’s neck or back either prior to this
accident.

[57]        
He also played squash with Mr. White prior his accident and so no
problems there either.

[58]        
He has seen Mr. White only very occasionally since his accident and
says Mr. White tends to lean back when he walks, and is no longer the very
joking person he was prior to the accident.

[59]        
Mr. Bates played on the same hockey time as Mr. White for a
year prior to the accident around 2006-2007 and says Mr. White made no complaints
that year about his neck or back.

[60]        
Mr. White’s son Craig confirms all this prior to the motor vehicle
accident. He confirms his father was involved in a number of sports including
hockey, squash and baseball, as well as working out in the gym and also
confirms that since the accident his father has put on weight and seems more
subdued.

[61]        
Mrs. White is 53 years of age and has been married to Mr. White
for 35 years.

[62]        
She also confirms that he was in good health prior to his accident.

[63]        
Prior to the accident, they lived in their own home but following the
accident they had to sell their house in 2010 because Mr. White was unable
to work. They also had to reduce their vehicles down to one vehicle, cashed in
their RRSPs and sold her jewellery. She says they take no vacations now. They
live with his mother now in a house with two bedrooms in a seniors’ complex.

[64]        
Prior to the accident she says Mr. White and she split the
housekeeping duties and he cleaned up after dinner and did all the yard work,
but after the accident it is she who looks after the yard, a neighbour mows the
grass while their sons help out, and Mr. White only does some weeding.

[65]        
She says she observes her husband complaining constantly of back pain
and trying to stretch his back and she says that following the Rogers
evaluation on January 15, 2010 he returned to home beaten and lethargic.

[66]        
She says Mr. White has good and bad times but the good times may
only last a half day or so and whereas he used to be a happy go lucky person he
now gets depressed.

[67]        
She worked at a Carlton Card store between 2007 and 2010 before she
found out she had cancer. Following initial treatment she returned to Marks
Work Warehouse for five months in 2012 until her cancer returned but following
further treatment again she now works in an accounting office in Chilliwack
making $16.00 per hour.

Dr. Chow

[68]        
Mr. White saw Dr. Chow, his family physician, on January 4,
2010, following the motor vehicle accident. Dr. Chow noted Mr. White
was walking stiffly. His initial diagnosis was of an acute cervical strain and
an acute lumbar strain with left sciatica.

[69]        
He sent Mr. White for x-rays of his neck, lumbar spine and left
shoulder and put Mr. White on Naproxen, an anti-inflammatory drug used to
treat pain and inflammation. He also referred Mr. White for physiotherapy.

[70]        
On his second attendance Mr. White complained to Dr. Chow of
frequent intermittent headaches on a daily basis, which Dr. Chow
considered were mainly cervicogenic secondary to neck strain.

[71]        
Dr. Chow noted Mr. White’s history of low-back pain for
approximately two years and observed a note from his previous family doctor of
August 18, 2006 of left sciatica symptoms.

[72]        
Dr. Chow also referenced the MRI of the lumbar spine that had been
performed in July 2007.

[73]        
Dr. Chow considers it significant he did not see Mr. White
with complaints of any problem with his low-back, nor for renewals of his
Lyrica prescription, between a previous appointment of September of 2007 and
his first visit after the motor vehicle accident on January 4, 2010.

[74]        
By June 8, 2010, Mr. White had discontinued his physiotherapy and
had switched to chiropractic treatments. He continued to complain of increased
bi-lateral tingling in both hands and legs and had a new symptom of tingling in
his right leg from his right knee to his foot.

[75]        
On July 6, 2010 he was switched back from chiropractic treatments to
more physiotherapy treatments.

[76]        
Mr. White says that for regular EI payments as of the end of July
2010, he indicated that he was available and capable of doing the same type of
work under the same conditions as in his previous employment.

[77]        
He says this statement was true but in re-examination says it is not
true.

[78]        
Dr. Chow suggests Mr. White is not suitable for any heavy type
occupation in the future. By January 2011 he felt Mr. White clinically had
developed a chronic pain syndrome secondary to his ongoing chronic neck pain and
chronic low back pain and one of his treatment goals was to manage his chronic
daily pain.

[79]        
Dr. Chow says Mr. White’s chronic neck and low-back pain with
left sciatica type symptoms are a result of the motor vehicle accident.

[80]        
Dr. Chow is of the opinion that the injuries Mr. White
sustained in the motor vehicle accident made a previously asymptomatic
condition now symptomatic.

[81]        
Dr. Chow also says it is highly likely Mr. White sustained a
minor concussion with a short episode of post-traumatic amnesia.

[82]        
He is also of the opinion Mr. White’s headaches resolved by
February 2011.

[83]        
As of May 5, 2011 Dr. Chow believes Mr. White’s condition plateaued
and he was moderately severely functionally impaired at the time with it more
likely than not that he would have ongoing chronic neck and back pain, perhaps
permanently.

[84]        
Dr. Chow considers Mr. White to be disabled from all
employment from the date of the accident to May 2011.

[85]        
It is Dr. Chow’s opinion Mr. White cannot return to any
physically demanding occupation in the future and a supervising position would
be most suitable for him or he should possibly retrain.

[86]        
In a follow-up report in 2012, Dr. Chow says Mr. White
attended an independent exercise program through Fraser Physiotherapy and Rehabilitation
Centre between February 2011 and May 2011 and reported the program decreased
the frequency of his discomfort although he still had constant low-back and
neck symptoms.

[87]        
At trial, Dr. Chow expresses the opinion Mr. White is
currently capable of light physical duties including lifting, pushing, pulling
and carrying up to 10 kg occasionally. He is not suited for moderate to heavy
labour. He has ongoing problems with poor sitting and standing tolerance of
more than 20-30 minutes and his walking tolerance is also limited. He
experiences burning in his buttocks and pain radiating down both legs while
driving only for 10-15 minutes.

[88]        
Dr. Chow does not expect any further improvement given it has been
almost three years since his motor vehicle accident and his symptoms remain
essentially unchanged.

[89]        
There is no indication by Dr. Chow of surgery as a means of
treatment for his condition and Mr. White is not currently taking any
medication.

[90]        
Mr. White says he has been taking Tramadol for pain for the last
four or five months but he is not taking any physiotherapy or massage
treatments because he cannot afford them any longer.

[91]        
On a referral to Dr. Hershler, Dr. Hershler recommended pulse
therapy but Mr. White says he cannot afford that either.

[92]        
While Dr. Chow agrees a patient’s symptoms of pain and tenderness
are subjective signs, he says his tests on Mr. White for restricted range
of motion confirmed Mr. White’s complaints and he says Mr. White has
been consistent about his complaints since the motor vehicle accident. He denies
Mr. White has been exaggerating his complaints.

[93]        
Dr. Chow was not told of Mr. White’s physical assessment of
January 15, 2010 for his interview with Rogers Foods and he agrees he would
have liked to have known about this assessment as it could be important as part
of Mr. White’s history.

[94]        
He agrees Mr. White’s sciatic symptoms could be as severe as they
were in the period 2005-2007.

[95]        
He also agrees he urged Mr. White to follow-up with Dr. Medvedev
after the MRI of July 25, 2007, as Dr. Medvedev had recommended, because Mr. White’s
significant disc disease and back pain had been ongoing for two years at that
time.

[96]        
Dr. Chow agrees that as of February 2010 Mr. White had fairly
good range of motion of his neck and his neck was 90% better overall.

[97]        
Dr. Chow agrees Mr. White’s tingling in his right leg may or
not be related to the motor vehicle accident.

[98]        
Dr. Chow confirms his note of August 6, 2010 indicates Mr. White
had some minor neck pain off and on prior to his motor vehicle accident but
persistent pain after the motor vehicle accident.

[99]        
There were no changes between Mr. White’s MRI scans of July 25, 2007
and December 21, 2010.

[100]     Dr. Chow
says the condition of Mr. White’s back indicated in the July 25, 2007 MRI
is a permanent condition. He says it is hard for him to predict whether it would
have become symptomatic over time when Mr. White made no complaints to him
for over two years prior to his motor vehicle accident. He says Mr. White
could have remained asymptomatic for only one or two years after 2007 or for
ten or 20 years thereafter, although the fact he was asymptomatic for over two
years prior to the accident leads him to expect Mr. White would have suffered
a very slow decline in his back condition, without the impact of the motor
vehicle accident.

[101]     In his
opinion Mr. White had a fragile spine prior to his accident but he was
doing heavy weight lifting with no back symptoms and he is unable to say that
the repetitive stress of lifting would have accelerated Mr. White’s
symptoms.

[102]     He does
however agree Mr. White has a degenerative disc disorder and the natural
result is to get worse over time although the rate of decline is unknown.

[103]     It is agreed
by the parties that Mr. White’s treatments consist of 12 massage therapy
treatments, 38 physiotherapy treatments, 44 chiropractic treatments, one
physiotherapy work hardening assessment at Fraser Valley Physiotherapy on
January 27, 2011 and three independent exercise program sessions on February 4,
2011.

[104]     Expenses
are agreed to in the amount of $38.00 for prescription medications in 2010 and
2011, $545.49 for prescription medications in 2012 and 2014, $89.60 for a
membership fee to attend a gym, $187.00 for user fees for massage therapy and
physiotherapy treatments, and $366.60 for travel expenses driving to and from
medical specialist’s appointments.

Dr. Wickham

[105]     Dr. Wickham
is an orthopedic surgeon in the Abbotsford area and a clinical instructor in
the Department of Orthopedics at UBC. In his practice he deals with the
injuries and disorders of the upper extremities including the shoulders,
elbows, wrist and hand. He is also involved in the general orthopedic surgical
treatment of musculoskeletal trauma, sports injuries and general other
disorders.

[106]     In
rendering his opinions he has accepted Mr. White’s medical history and
current account of his medical condition are honest and accurate because he
found no evidence of any pain exaggeration by Mr. White.

[107]     He
confirms Mr. White’s medical history of multiple level degenerative disc
disease and spondylosis of the lumbar spine and of the cervical spine at C5-6
and C6-7.

[108]     It is his
opinion the motor vehicle accident did not cause the degenerative disc disease
of the lumbar spine but significantly exacerbated it.

[109]     It is also
his opinion likely the degenerative disc disease of Mr. White’s cervical
spine pre-dated the vehicle accident but his injuries in the motor vehicle
accident resulted in his neck becoming symptomatic, although he says it
improved since the motor vehicle accident and on his examination of December 3,
2012 he found little evidence of significant restriction of Mr. White’s
cervical spine and could not re-create any of the symptoms.

[110]     He does
not consider Mr. White has any capacity to perform any type of work whose
duties require repetitive heavy lifting, pushing or pulling or prolonged
sitting.

[111]     Dr. Wickham
says Mr. White is able to perform all his activities of daily living
currently, such as the light housework and domestic chores, but any type of
heavy lifting or moving will cause him further pain to the point where he is
unable to perform these activities.

[112]     While he
did have and reviewed the functional evaluation of January 15, 2010, in his
opinion a two hour examination two weeks after the motor vehicle accident is
not equivalent to being required to carry out these functions during
employment, and he understands how Mr. White could have done these
functions on the examination in order to get employment.

[113]     He does
agree, however, that he should have dealt with these January 15, 2010 findings
in the functional part of his report as it is relevant, although he does not
believe it changes his opinions.

[114]     He says he
can speculate that at some time in Mr. White’s life he could expect lumbar
pain, even without the motor vehicle accident, but he says it is very difficult
to say when that might be.

[115]     He says Mr. White’s
condition can be expected to worsen over time and develop symptoms as that is
the natural progression of a disc condition, but he cannot say this with any
certainty, although there is a high probability of Mr. White having more
symptoms over time.

[116]     He says if
Mr. White had been doing more heavy physical and repetitive labour prior
to the accident at Saputo Foods, given his pre-existing lumbar disc disease, he
may very well have experienced pain and limitation in doing this more physical
repetitive work, prior to the accident.

Dr. Watt

[117]     Dr. Watt
is a general practitioner with a speciality in sports medicine and was
qualified to provide opinions on soft-tissue injuries.

[118]     He
provided two reports of April 21, 2011 and December 14, 2012.

[119]     His
initial assessment of Mr. White was on April 11, 2011 and his second
assessment was on December 10, 2012.

[120]     Dr. Watt
works with a functional evaluator, Mr. Nguyen, who does 95% or more of the
functional testing although Dr. Watt says he is also familiar with the
functional evaluation testing as he has done it himself.

[121]     He says he
has reviewed over 200 of Mr. Nguyen’s functional testings and from his
training he can interpret the testing and determine whether a true effort has
been made by the subject.

[122]     Mr. Nguyen
does not interpret the data produced from his functional testing as that is
left to Dr. Watt.

[123]     In his
reports Dr. Watt observed all the pre-existing degenerative disc disease
in Mr. White and observed the evidence that it was non-disabling prior to
the motor-vehicle accident at least in the previous six to 12 months.

[124]     He
observed on his attendances that Mr. White is slightly overweight but is
extremely well-muscled but he walks with a limp favouring his left leg and
during his examinations he repeatedly altered his body position.

[125]     Dr. Watt
found no evidence of symptom magnification.

[126]     Dr. Watt
concludes Mr. White is probably capable of working at a light level but is
unable to perform repetitive tasks of above eye level, reaching, stooping,
kneeling or crouching as these activities exacerbate the pain in his low back.
Sitting and standing also is limited to 15 minutes or so.

[127]     In Dr. Watt’s
opinion, Mr. White’s motor vehicle accident aggravated his pre-existing
neck and back impairments, which on the medical history were asymptomatic and
non-disabling prior to the accident, but become symptomatic and moderately to
severely disabling from the accident.

[128]     In his
opinion Mr. White has reached maximal medical improvement without any
possibility of further improvement.

[129]     In Dr. Watt’s
opinion if the accident had not occurred Mr. White would have experienced a
progressive gradual increase in his symptoms and physical limitations over the
next 20-30 years of his life in any event, but the accident accelerated this
deterioration in his symptoms and functional level and quality of life.

[130]     At the
same time Dr. Watt agrees he does not have a crystal ball indicating what
will happen in the next 20-30 years of Mr. White’s life and he says ten
doctors might give five different opinions.

[131]     In his
opinion Mr. White is theoretically fit to return to his long-term
managerial position at Saputo Foods which was a light-duty position but he
could not do the job of a dairy plant labourer as the physical demands exceed
his functional capacity.

[132]     Dr. Watt
thinks Mr. White would benefit from a lumbar support during long drives or
flights and recommends a home Tens unit as well as gentle yoga exercises for
three to six months.

Mr. Nguyen

[133]     Mr. Nguyen
produces two functional evaluation reports of April 15, 2011 and December 11,
2012 as well as two rebuttal reports of March 8, 2013 and November 25, 2013.

[134]     He was qualified
to give evidence as an expert in kinesiology and functional capacity evaluation
and testing.

[135]     Mr. White
declined to do a test for Mr. Nguyen measuring the agility of a person’s
gross body movements as they relate to the functional ability to perform certain
job tasks of sustained reaching above the eye level, sustained and repetitive
stooping, prolonged kneeling and manual dexterity while crouching, and standing
requiring continuous reaching between floor and eye levels.

[136]     Mr. White
reported by that point in the testing he had reached his psychophysical end
point of exacerbated pain symptoms.

[137]     Mr. Nguyen’s
reaction is that Mr. White had a right to decline this test.

[138]     He says Mr. White
provided a consistent and high-level of effort for all but two tests and the
low results in those two tests are not sufficient to determine the overall
level of validity and reliability. It is the overall performance of all
components that is important for the level of Mr. White’s consistency and
effort.

Dr. Grypma

[139]     Dr. Grypma
is an orthopedic surgeon qualified to give opinions on musculoskeletal injuries
and soft-tissue injuries. He examined Mr. White on August 1, 2012 and
prepared a report of that date for trial.

[140]     He says on
examination Mr. White walked with a limp but when Mr. White left his
office he observed Mr. White and he was not walking with a limp.

[141]     He says during
his examination of Mr. White he appeared in no distress. Mr. White
said he could only flex his neck 10 degrees but Dr. Grypma observed a full
flexion of the neck with no signs of discomfort. It was the same for neck
extension and neck rotation. Mr. White said he could only extend and
rotate his neck a limited degree but Dr. Grypma says he observed a full
extension and rotation of the neck with no discomfort.

[142]     While Mr. White
told him all these motions hurt him, Dr. Grypma says he observed greater
motion showing no signs of discomfort.

[143]     When Dr. Grypma
did a test on Mr. White’s wrists, Mr. White said it caused lower back
pain, although Dr. Grypma saw no signs of distress and says there is no
anatomical explanation for this.

[144]     Mr. White
complained of numbness along his sciatic nerve but with no pain and Dr. Grypma
considered this a highly unusual complaint with no anatomical explanation for
it.

[145]     Mr. White
told Dr. Grypma he had lower back pain with only ten degrees of trunk
rotation to the right and left which Dr. Grypma considers to be a positive
Waddell sign or non-organic sign.

[146]     Dr. Grypma
also says Mr. White had a contradictory straight leg raising test which is
also a positive Waddell sign.

[147]     He also
refers to Mr. White’s complaint of low back pain with restricted right and
left hip flexion at the same time he was able to sit comfortably with his hips
flexed 80 degrees on the edge of the examining table showing no signs of
discomfort, and later flexing his hips 80 degrees on both sides saying this
felt better. Dr. Grypma says this makes no sense.

[148]     He found Mr. White
to have an excessive amount of non-organic signs and inconsistent findings on
physical examination.

[149]     At the
same time, Dr. Grypma says this does not necessarily mean Mr. White
was malingering and did not feel pain.

[150]     Dr. Grypma’s
impression of Mr. White is that Mr. White sustained a soft-tissue
injury to his neck in the motor vehicle accident which aggravated pre-existing
degenerative changes and osteoarthritis in his neck. He says the osteoarthritis
is a progressive condition over time.

[151]     With the
amount of disc degeneration and osteoarthritis he observed in Mr. White he
is very surprised if Mr. White would be symptom free at the time of the
motor vehicle accident.

[152]     He says Mr. White
is at the peak age of having recurring neck symptoms in the absence of any
injury and would likely have had these symptoms in the absence of the motor
vehicle accident.

[153]     He points
out that on March 1, 2010 Dr. Chow said Mr. White’s neck was 90%
better with full range of motion.

[154]     Dr. Grypma
says if Mr. White’s neck symptoms became worse after that date, he
considers it far more likely this was due to osteoarthritis and not likely due
to injuries in the motor vehicle accident.

[155]     He
considers Mr. White’s enduring neck symptoms to be due to functional
overlay, deconditioning and degenerative disc disease and osteoarthritis.

[156]     He says Mr. White’s
complaints were not supported by his injuries in the accident and his pain
perception did not meet his presentation to him.

[157]     Dr. Grypma
believes Mr. White also sustained a soft-tissue injury to his low back
area in the motor vehicle accident aggravating his pre-existing degenerative
changes in his low back. As with the neck, he believes Mr. White was at
the peak age of having recurring low back pain in the absence of the motor
vehicle accident.

[158]     Dr. Grypma
considers it likely Mr. White would have had recurring low back pain in
the absence of the motor vehicle accident.

[159]     It is Dr. Grypma’s
impression Mr. White’s enduring symptoms are due to spinal stenosis (a
narrowing of the spinal canal) caused by degenerative disc disease and
osteoarthritis that significantly preceded the accident and is not due to the
accident.

[160]     Dr. Grypma
says the motor vehicle accident may have affected Mr. White’s
employability for about six to eight weeks but his current medical status is
due to advanced degenerative changes and osteoarthritis involving his neck and
spine and not due to any soft tissue injury from the accident.

[161]     He was
likely totally disabled for about four to six weeks and partially disabled
thereafter for another two to four weeks.

[162]     Dr. Grypma
does not see any contradiction for Mr. White being able to work although
with some limitation not related to the motor vehicle accident.

Dr. Sovio

[163]     Dr. Sovio
is another orthopedic surgeon. He was qualified to give opinions on
musculoskeletal injuries and soft-tissue injuries. He prepared three reports
dated December 15, 2011, January 28, 2013 and January 31, 2013, the last two
reports being respectively two and one page reports only.

[164]     Dr. Sovio
is almost fully retired, having done so at age 65 in 2012 and now works only
one day a week.

[165]     He says he
works mainly for law firms on the defence side and has billed ICBC significant
amounts over the years.

[166]     When Dr. Sovio
examined Mr. White on December 13, 2011, he says Mr. White was a
healthy looking person somewhat overweight. On examination, his neck motion was
restricted but when distracted he had much better neck movement.

[167]     He rotated
Mr. White’s pelvis, not involving a rotation of his spine, and says it
should not have produced pain in Mr. White’s spine, although Mr. White
said it did.

[168]     Dr. Sovio
concludes this is a Waddell sign.

[169]     He
performed axial compression on Mr. White’s spine consisting of pushing on
the top of his head, to which Mr. White said this produced pain in his
back, which again Dr. Sovio says is not anatomically possible.

[170]     He also
found Mr. White to have non-anatomic type sensory changes in his left leg
not supported on his examination.

[171]     Dr. Sovio
says it is very difficult to know how much disability Mr. White actually
has. He had pre-existing low-back problems from 2005-2007, but with no evidence
of having seen his family physician between 2007 and 2009.

[172]     While Dr. Sovio
says it is open to question whether Mr. White saw another doctor between
2007-2009, he says it is hard to imagine that someone with such significant
degenerative changes in his spine would spontaneously clear-up after two years
of daily pain.

[173]     Dr. Sovio
makes particular mention of the January 15, 2010 Rogers pre-employment physical
evaluation where it was reported Mr. White had no physical signs of limitation,
complained of no pain and performed the functional capacity evaluation tests
without limitation.

[174]     With Mr. White’s
multi-level disease in his cervical and lumbar region, Dr. Sovio says he
would not be advised to be taking on any type of labouring type employment.

[175]     He says
that absent the motor vehicle accident he suspects, which at trial he says
means “more likely than not”, Mr. White would not be able to manage in a
labour-intensive environment.

[176]     He does
not recommend any treatment for Mr. White.

[177]     He
observes on Dr. Wickham’s examination he noted a change in performing the
straight-leg raising test in a supine and seated position.

[178]     Dr. Sovio
also says there should be no difference between the two positions and this is a
Waddell sign. However, he says it is not for doctors to say whether it is due
to malingering as that is for the Court to determine, and there could be
psychological issues at play.

[179]     Dr. Sovio
says if Mr. White is not capable of returning to work in any physical capacity
as suggested by Dr. Wickham it is more likely than not this is on the
basis of his degenerative disc disease rather than any soft-tissue injury he
may have suffered in the motor vehicle accident.

[180]     He
believes any soft tissue injury from the motor vehicle accident would have
cleared up long before now and he says Mr. White is not in the category of
that small percentage of people whose soft-tissue injuries go on forever.

[181]     He says
anyone lifting as much weight as Mr. White was in the gymnasium would be
expected to have significant degenerative changes over time and he would be
very surprised and consider it extremely unusual if Mr. White did not have
symptoms in the future from the time of his MRI in 2007, from his activities.

[182]     He says Mr. White
likely had some symptoms pre-accident but if he says he was pain-free prior to
the accident and then injured in the accident, that fails to explain the Rogers
pre-employment evaluation of January 15, 2010 and the Waddell signs.

[183]     He says Mr. White
may have needed a job when he went to the Rogers work evaluation on January 15,
2010 but he questions how Mr. White could get through that evaluation. He
says if Mr. White had any significant injuries from the accident he would
not be able to complete the evaluation.

[184]     While Dr. Sovio
says he has to accept the possibility Mr. White was pain-free prior to the
accident, he is not prepared to alter his opinion that it is the disc
degeneration and osteoarthritis that is presently causing him pain and not a soft-tissue
injury.

Mr. Nordin

[185]     Mr. Nordin
is a vocational rehabilitation consultant who is qualified to give evidence on
the employability of injured workers.

[186]     He met
with Mr. White on June 30, 2011 for four to four-and-one-half hours and
produced a report of July 14, 2011.

[187]     His mental
testing found Mr. White to have an overall reading rate of below average
at the 17^th percentile indicating he would have difficulty with the
reading requirements of an academically-based post-secondary program.

[188]     He
determined Mr. White’s general learning ability score was in the 34^th
percentile suggesting he is best-suited for very short practical training
programs rather than for more lengthy academically-based programs.

[189]     Mr. White’s
highest basic interest area for work was in the manual/skilled trades.

[190]     Mr. Nordin
says that initially any new work for Mr. White would likely require he
work in the production side of a company in order to fully understand the job
requirements of production workers prior to becoming a supervisor. If he is
unable to work in production, it will likely make him ineligible for any
prospective supervisory position.

[191]     He says
current food and beverage production supervisor job postings in the lower mainland
and Fraser Valley require a post-secondary education and significant
supervising work experience as hiring requirements.

[192]     With Mr. White
in his 50s and having had only two years in a supervisory role with Saputo, and
with no higher education and possibly no reference, Mr. Nordin thinks Mr. White
would have difficulty getting a supervisory job with competition coming from
younger applicants.

[193]     If Mr. White
is unable to maintain sitting or standing for longer than 15-20 minutes at a
time, Mr. Nordin is of the opinion this likely makes him competitively
unemployable, the opinions of Dr. Watt and Dr. Chow notwithstanding.

[194]     Mr. Nordin
is unable to identify any occupation he believes Mr. White would be able
to do on a competitive and sustained basis given his age, his vocational test
results and his ongoing medical symptoms, and he does not have any re-training
recommendations for Mr. White either.

[195]     He says a
dairy food operation is a small pool of possibility for work in the Fraser
Valley and in BC in general.

Ms. Quee Newell

[196]     Ms. Newell
works for Vocational Pacific Ltd., a vocational rehabilitation consulting firm.

[197]     She was
qualified to give opinion evidence on the employment capability and vocational
prospects of injured workers.

[198]     She has a
doctorate of counselling psychology and she is a registered clinical
counsellor.

[199]     She
prepared a report dated October 31, 2013 after reviewing a number of employment
records and medical records for Mr. White, but she did not interview nor
test Mr. White personally which she says would have been ideal to complete
her assessment.

[200]     She says
her review of current food/beverage production supervisor job postings in the
Lower Mainland/Fraser Valley region identifies post-secondary education and
significant supervisory work experience as hiring requirements.

[201]     She says
an individual of Mr. White’s age with no formal post-secondary education
and only two years of supervisory work experience, without any employment
references, would be expected to have difficulty competing for work as a
production supervisor against younger, more educated applicants who can provide
positive employment references.

[202]     She says
the type of production labour positions Mr. White worked in between 2008
and the 2009 motor vehicle accident are likely an accurate reflection of the
occupations an individual with his background could have competed for absent
the 2009 motor vehicle accident and assuming the degenerative disc disease did
not become symptomatic.

[203]     Current
job postings for production worker and machine operator positions in the food
and beverage industry cite wages ranging from $10.86 to $15.00 per hour.

[204]     In the
Lower Mainland/Southwest region, the low, median, and high wages for labourers
in food, beverage and tobacco processing are $10.25 per hour, $15.26 and $20.58
per hour respectively.

[205]     She says if
assuming the reviewed medical information provides an accurate description of Mr. White’s
functional abilities and limitations there are a number of direct entry
occupations an individual such as he could compete for. Some occupational
examples include employment as a security guard, retail sales clerk, inventory
clerk, and selective machine operator positions in the food/beverage industry
not requiring repetitive or heavy lifting.

[206]     Wages for
a security guard range from $10.25 per hour to $23.00 per hour, for a retail
sales clerk, $10.25 per hour to $21.03 per hour, for an inventory clerk, $12.50
per hour to $30.29 per hour and for a food/beverage machine operator $10.25 per
hour to $23.00 per hour.

[207]     She says
these employments require light strength while other employments requiring
medium strength would be greater in number.

[208]     She says
an individual of Mr. White’s age who has been away from the labour market
for a number of years may benefit from the provision of vocational rehabilitation
treatment to assist with return to work activities and that would involve the
services of a job placement worker which would involve 15-20 hours of
professional time at a rate of $75-$150 per hour.

Dr. Cooke

[209]     Dr. Cooke
is a work capacity evaluator and functional capacity evaluator and was
qualified to give opinions in these areas.

[210]     He is not
a medical doctor and did not interview nor test Mr. White.

[211]     He
prepared three reports dated January 29, 2013, August 27, 2013 and December 14,
2013 commenting on the reports of Dr. Watt and Mr. Nguyen.

[212]     He
reviewed the assessment of the Fraser Valley Rehabilitation Centre of Mr. White
of January 15, 2010.

[213]     In his
reports, he criticizes the systems used by Mr. Nguyen to assess Mr. White
and raises concerns about this and about the accuracy of his recommendations to
Dr. Watt and in turn Dr. Watt’s opinions of Mr. White’s
potential of returning to work.

[214]     He points
out that Mr. White’s decision to not participate in a number of tests to
be conducted by Mr. Nguyen is at odds with his participation in those same
tests in the evaluation of January 15, 2010.

[215]     He says
the missing data for these tests makes Mr. Nguyen’s assessment of Mr. White’s
functional capacity incomplete and rendered Dr. Watt’s ability to comment
on Mr. White’s overall work capacity and employability extremely
difficult.

[216]     He
reviewed the section of Mr. Nguyen’s report dealing with pinch-grip
strength that shows three of the six pinching tests for the right and left
hands above 10%. He suggests this indicates a less than consistent effort on
the part of Mr. White.

[217]     He also
says an analysis of Mr. White’s heart rate response while lifting
indicates he may not have given a maximal effort according to the National
Institute of Occupational Safety and Health.

[218]     In total
he says Dr. Watt’s statement that Mr. White gave a generally good
effort throughout the functional testing and his performance was a generally
reliable reflection of his current physical abilities does not appear
consistent with the level of variability in Mr. Nguyen’s data.

[219]     He says
his review of Mr. White’s results from lifting confirms his ability to
lift at a medium strength level and not at a light strength level as Dr. Watt
has said.

[220]     Overall he
says Mr. White’s refusal to participate in portions of the tests
administered by Mr. Nguyen and some inconsistencies in the data collected
is suggestive of inconsistent effort or less than full effort by Mr. White
and casts doubt on the accuracy of the recommendations Dr. Watt made of Mr. White’s
employability.

[221]     He also
compared a number of Mr. White’s results from Mr. Nguyen’s testing of
April 15, 2011 with Mr. Nguyen’s subsequent testing of December 11, 2012
and concluded these results do not support Dr. Watt’s conclusion that Mr. White
has a progressive condition that will probably result in increasing pain and
disability over time, because the results are much the same.

Mr. Peever

[222]     Mr. Peever
is an economist qualified to give opinions on past and future wage loss.

[223]     He relied
on the assumption that absent the motor vehicle accident Mr. White would
have found full-time employment in the food production industry as either a
labourer on the plant floor or in a supervisory position, as of March 1, 2010,
and his potential for full-time earnings would have been between $45,000 and
$70,000 per year with retirement at age 65 or 70.

[224]     He
calculated the present value of the loss of a future stream of income for these
assumed incomes to age 65 or 70 for Mr. White and he also produced
calculations for a possible past-wage loss at different incomes.

Mr. Benning

[225]     Mr. Benning
is the President of Peta Consultants Ltd., a firm of consulting economists.

[226]     In a
report of February 5, 2014, he reviewed the opinions of Mr. Peever of
Associated Economic Consultants filed on behalf of Mr. White.

[227]     Commenting
on Mr. Peever’s estimates of past loss of employment income from the date
of the accident to time of trial, Mr. Benning points out that Mr. Peever’s
figures are prior to any deduction for income Mr. White actually made in
that time period, as well as for any income tax and employee EI premiums that
he would have been required to pay on any income that he made in that time
period.

[228]     Past loss
of employment income by law must be a net amount after taxes and EI premiums
and not a gross amount.

[229]     Mr. Benning
says Mr. Peever’s figures for past loss of employment income should be
reduced by 17.9% for these income taxes and premiums.

[230]     Mr. Benning
also points out that Mr. Peever’s figures for the present value of a
future loss of employment income are based on Mr. White being unable to
take on any employment after his motor vehicle accident.

[231]     Depending
on the value of any employment it is decided Mr. White can still engage in
after his motor vehicle accident, Mr. Benning says Mr. Peever’s
figures have to be reduced by the present value of that income over his remaining
working life.

Submissions

[232]     The
plaintiff, who was 53 years of age at trial, submits that he has chronic debilitating
injuries and his recreational activities as well as vocational capabilities have
been significantly reduced.

[233]     He submits
he is not employable in any physical capacity and his lack of formal education
makes it difficult if not impossible to get any management position.

[234]     He submits
that he was asymptomatic before this motor vehicle accident and only became
symptomatic as a result of the accident with his pre-existing disc
degeneration, mostly in his back area, but also in his neck area.

[235]     But for
the accident he submits that he would not feel the pain he is presently
experiencing as the accident is the root cause of his injuries and the symptoms
he is experiencing to this day.

[236]     He submits
the Court should not accept the opinions of Dr. Grypma and Dr. Sovio
as they acted as advocates and their reports are not objective.

[237]     The
plaintiff does acknowledge, however, that his pre-existing disc degeneration in
his back, on the evidence of the doctors, would have deteriorated further on a gradual
basis in the absence of the motor vehicle accident, to become symptomatic and
disabling over time, but without any indication of when that might be in the
future.

[238]     He submits
that his non-pecuniary damages should be assessed in the order of $120,000
based upon previous decisions in law: Larwill v. Lanham, 2001 BCSC 1597;
2003 BCCA 629; Slocombe v. Wowchuk, 2009 BCSC 967; Bouchard v.
Brown Bros. Motor Lease Canada Ltd., 2011 BCSC 762; 2012 BCCA 331, and Ayoubee
v. Campbell, 2009 BCSC 317.

[239]      He also
seeks an award for past loss of income, based upon the figures in Mr. Peever’s
report of January 2, 2014, of gross earnings of $50,000 per year from March 1,
2010 to January 27, 2014 at the beginning of trial, in a net amount equal to Mr. Peever’s
calculation of $172,600 gross.

[240]     On Mr. Peever’s
calculations of the rate of income tax and EI premiums for Mr. White this would
work out to a figure in the order of $140,000 for his claim for past net loss
of income to trial.

[241]     In
addition he seeks future loss of income earning incapacity of $491,400 to age
65 based upon Mr. Peever’s figures again, at $60,000 per year from January
27, 2014 to age 65.

[242]     He relies
upon the decisions of Clark v. Kouba, 2012 BCSC 1607; Hildebrand v.
Musseau, 2010 BCSC 1022; Roberts v. Scribner, 2009 BCSC 1761, and Jackson
v. Rooney, 2007 BCSC 761.

[243]     He also
seeks an award for the cost of future care/loss of housekeeping ability of
$30,000 and special damages of $1,226 that he says is an agreed-upon amount.

[244]     He submits
this is a thin skull case along the lines of Athey v. Leonati, [1996] 3
S.C.R. 458 [Athey] and not a crumbling skull case as is discussed in Athey.

[245]     The
defendant accepts that the plaintiff sustained soft tissue injuries to his neck
and back in this motor vehicle accident but submits they are not nearly as
severe and long-lasting as the plaintiff makes them out to be.

[246]     He submits
the plaintiff has serious credibility issues and there are multiple
contradictions in his evidence and in the evidence of his witnesses, leading to
a result that the evidence is not to be believed as to the extent of his
injuries and the length of their duration as the plaintiff and his witnesses
say.

[247]     It is
submitted the video taken of Mr. White indicates that he has good mobility
in his neck and back getting in and out of his vehicle and walking around.

[248]     It is
submitted his problems of getting employment after he left Saputo on February
7, 2008 up to the time of his accident indicates that he was not suited to
doing heavy labour prior to the accident as he is not suited after the accident.

[249]     It is
submitted this is a crumbling skull case and not a thin skull case and the
plaintiff’s award for non-pecuniary damages should only be in the order of $30,000-$40,000
relying on the decisions: Olianka v. Spagnol, 2011 BCSC 1013; Pavlovic
v. Shields, 2009 BCSC 345, and Mazur v. Lucas, 2014 BCCA 19.

[250]     It is
submitted Mr. White has not sustained any past loss of wages because he
could still have done the supervisory type of work he did at Saputo Foods even
though any labouring jobs he would not have been able to do because of the
degenerative disc disease in his back.

[251]     For loss
of future earning capacity it is also submitted that the award should be nil
because Mr. White has failed to mitigate his damages by looking for and
accepting positions as Ms. Newell says in her report of October 31, 2013 Mr. White
would be qualified for.

[252]     It is
submitted Mr. White cannot satisfy his onus of proving a substantial
possibility of a future event leading to an income loss as the Court of Appeal
in Steward v. Berezan, [2007] B.C.J. No. 499; 2007 BCCA 150;
and Perren v. Lalari, [2010] B.C.J. No. 455; 2010 BCCA 140, have
explained as the requirement for a future award.

Decision

[253]     I accept Mr. White
was free of pain to his back and neck at the time of his motor vehicle accident
on December 31, 2009.

[254]     However I
do not accept he is as physically disabled by pain from the accident as he and
his witnesses make out.

[255]     I accept
the opinions of Dr. Grypma and Dr. Sovio that Mr. White presents
with a number of inconsistent results on examination that may or may not be Waddell
signs, but at least offer of no medical explanation.

[256]     I have no
idea if these inconsistent results represent efforts by Mr. White to
obtain more compensation for his claim, or represent psychological issues that
he has that should be investigated further as Dr. Sovio has suggested.
Either way at the present time they are unexplained.

[257]     Mr. White
agrees he told Dr. Medvedev in 2007 that two years prior, which would be
in 2005, he had been playing squash and suddenly developed pain in his low back
radiating down his left leg, and since that time the back pain had been present
virtually daily with some days better than others, but on most days causing him
trouble walking.

[258]     Accordingly
it is clear that he did have aggravation of his low back disc degeneration
right through to 2007.

[259]     Mr. White
moved from a labouring job with Saputo to a supervisory job with Saputo in
2006. I expect that having a supervisory job with Saputo until he left on
February 7, 2008 served to protect his low back from the risk of becoming again
symptomatic from his degenerative disc disease prior to his motor vehicle
accident.

[260]     After
leaving Saputo, and after taking a break from all work, Mr. White joined Sunset
Food Processors where he was let go after three days as not working out,
followed by Vitalus in January- April 2009 where he was let go as not fitting
into their work culture, followed by Coast Mountain Dairy Ltd. from June 8,
2009 to November 4, 2009 where he was let go because he did not get along with
other employees and was creating a stressful environment.

[261]     These
employments prior to his motor vehicle accident indicate to me that he could
still carry on labouring jobs after Saputo without any evidence of any back or
neck problems as none of these reasons were given for letting him go from these
employments.

[262]     I accept
as well that Mr. White’s continuing back pain to the present day is due to
ongoing aggravation of his degenerative disc disease caused by the motor
vehicle accident.

[263]     I reject
the opinions of Dr. Grypma and Dr. Sovio to the contrary that Mr. White’s
soft tissue injuries from the motor vehicle accident have been replaced before
now by ongoing symptoms of degenerative disc disease.

[264]     Dr. Chow
and Dr. Wickham, whose opinions I do accept, say that his chronic neck and
low back pain are a result of the motor vehicle accident and it is impossible
to say when his back would have become symptomatic from his degenerative disc
disease, in the absence of the accident.

[265]     I found Dr. Chow
and Dr. Wickham to both be very good honest witnesses, and I accept their
opinions.

[266]     I also
accept Mr. White’s evidence that he was only able to perform the January
15, 2010 assessment with considerable pain because he wanted to qualify for the
Rogers food employment but I conclude that if he had obtained that employment
he would not have been able to carry out the physical requirements of it.

[267]     At the
same time I must consider whether his award for non-pecuniary damages as well
as his claim for loss of future income earning capacity should both be
discounted somewhat for the chance that his degenerative disc disease would
become symptomatic at some time in his life, regardless of his motor vehicle
accident.

[268]    
The Supreme Court of Canada decision in Athey at para. 27 said
that:

Hypothetical events (such as how
the plaintiff’s life would have proceeded without the tortuous injury) or
future events need not be proven on a balance of probabilities. Instead, they
are simply given weight according to their relative likelihood … A future or
hypothetical possibility will be taken into consideration as long as it is a real
and substantial possibility and not mere speculation.

[269]    
Under the heading “Independent Intervening Events” the Supreme Court of Canada
emphasized at para. 32 that:

The essential purpose and most
basic principle of tort law is that the plaintiff must be placed in the
position he or she would have been in absent the defendant’s negligence … However
the plaintiff is not to be placed in a position better than his or her original
one. It is therefore necessary not only to determine the plaintiff’s position
after the tort but also to assess what the "original position" would
have been. It is the difference between these positions, the "original
position" and the "injured position", which is the plaintiff’s
loss.

[270]     Dr. Chow
says Mr. White could have remained asymptomatic for only one or two years
after 2007 or ten to 20 years thereafter.

[271]     Dr. Wickham
says Mr. White’s condition can be expected to worsen over time and develop
symptoms as that is the natural progression of a disc condition. However he
cannot say this with any certainty but says there is a high probability of Mr. White
having more symptoms over time.

[272]     Dr. Watt
says if the accident had not occurred Mr. White would have experienced a
progressive gradual increase in his symptoms and physical limitations over the
next 20-30 years of his life in any event.

[273]     It is my
conclusion from these opinions there is a measurable risk that Mr. White’s
pre-existing degenerative disc disease would have detrimentally affected him in
the future, apart from the injuries he sustained in his motor vehicle accident,
and this should be taken into account in reducing his overall award for non-pecuniary
damages.

[274]     I assess his
non-pecuniary damages in an amount of $100,000 from this motor vehicle accident.

Past wage loss

[275]      Mr. White
assesses his past wage loss from March 1, 2010 to the date of trial. March 1,
2010 is shortly prior to Mr. White having received the offer from Alberta Cheese
Company to be a plant supervisor/cheese maker at $60,000 per year, which
employment never came to pass.

[276]     I agree
that even if Mr. White had accepted this offer he would not have been able
to handle the cheese making part of the job physically because of the injuries
in his accident.

[277]     Defence
counsel has not taken any position on this employment so I will not consider it
further.

[278]     Mr. White
has assumed an annual income of $50,000 per year for past income loss prior to
trial, to arrive at Mr. Peever’s gross figure of $172,600 for the period
March 1, 2010 to January 27, 2014.

[279]     This is a
gross figure for income and must be reduced for provincial and federal income
taxes and Mr. White’s requirement to pay employment insurance premiums.

[280]     I conclude
Mr. White would not have obtained a supervisor position prior to trial
following his employment at Saputo foods. All the employments he did have before
trial were labouring type employments.

[281]     Ms. Quee
Newell says her review of current food/beverage production supervisor job
postings identifies post-secondary education and significant supervisor work
experience as hiring requirements.

[282]     She goes
on to say an individual of Mr. White’s age with no formal post-secondary
education and only two years of supervisory experience, without employment
references, would be expected to have difficulty competing for work as a
production supervisor against younger, more educated applicants, who can
provide positive employment references.

[283]     I accept
her opinion of this and I consider at Mr. White’s age, with his limited
education, with only two years of experience as a production supervisor, and
with little or no chance of getting any employment reference from Saputo, he
would have fallen into this category that Ms. Quee Newell has set out in
her opinion.

[284]     I consider
at best up to the time of trial Mr. White would have earned no more than
$45,000 per year at labouring employments up to trial.

[285]     From this
figure must be deducted the actual net amounts Mr. White did receive in
the years prior to trial. His tax returns show that he made gross income of
$24,945 in 2010, $8,564.94 in 2011 and $25,677 in 2012. The evidence is that he
was not employed at all after that point up to the time of trial.

[286]     In
addition, the submission must be considered that Mr. White did not
mitigate his claim for past income loss by pursuing the type of occupations Ms. Quee
Newell has stated in her report, being such employments as security guard,
retail sales clerk, inventory clerk, or food/beverage machine operator.

[287]     The rough
average of these occupations she has set out in her report would produce a
gross income for Mr. White of approximately $25,000 per year.

[288]     I agree Mr. White
has not mitigated his damages by pursuing these sorts of employments prior to
trial.

[289]     Mr. Peever
sets out income tax rates and employment insurance premium rates for a person
whose partner earns about $11,000 or more per year, at table B of his report.

[290]     Accepting
that absent his motor vehicle accident Mr. White could have earned $45,000
per year at a labouring job in the years 2010-2013 inclusive and deducting from
these losses the amounts that he did actually receive in employment income in
those years, I arrive at a total loss of gross income for those years of
$120,813.06.

[291]     Applying Mr. Peever’s
figures for income tax rates and EI premium rates for Mr. White at Table B
of his report for those years at 16.5% and employing his method of determining the
effect of these rates, produces a figure for net past loss of income of
approximately $108,000.

[292]     Mr. White’s
past net loss of income for 2010-2013 would be $108,000 before taking into
account the contingencies Mr. Peever has taken into account up to trial.

[293]     I assess
Mr. White’s past wage loss claim at $95,000.

Loss of future income earning capacity

[294]     For the
claim for loss of future income earning capacity Mr. Peever supplies
present value figures for a loss of $1,000 per year to age 65 or age 70. Mr. White
seeks a figure to age 65 so I will consider his loss of future earning capacity
only to age 65.

[295]     Again I
conclude that the maximum Mr. White would have earned into the future from
2014 onwards to age 65 is $45,000 per year.

[296]     From this
amount must be deducted the value of work that he could still do which I
consider to be in the order of $25,000 per year as Ms. Quee Newell has set
out in her report as well as the measurable risk his pre-existing degenerative
disc disease may have become symptomatic before age 65 requiring him to quit
all work.

[297]     For future
loss of income earning capacity I assess Mr. White’s loss per year at
$20,000 per year, being the difference between $45,000 per year and $25,000 per
year that he should be able to earn, and accept Mr. Peever’s multiplier of
$9,671 per $1,000 to age 65. A loss of 20 times that amount to age 65 results
in a present value of his loss to age 65 of $193,420.

[298]     I deduct
no amount for the measurable risk of symptomatic disc disease before age 65
because there is insufficient evidence to say it would take place before that
age. However, I must take into account Mr. Peever’s contingencies again.

[299]     I assess
this claim at $175,000.

Cost of future care/housekeeping

[300]     The
evidence is that Mr. White did half the housework and most or all of the
outside work prior to his accident and Dr. Watt thinks Mr. White
would benefit from a lumbar support during long drives or flights and
recommends a home Tens unit as well as gentle yoga exercises for three to six
months.

[301]     I award Mr. White
his claim of $30,000 for loss of housekeeping ability/cost of future care.

Special damages

[302]     I also
award him the $1,226 for special damages that he claims.

Costs

[303]    
Finally he will have his costs of this action in the absence of any applicable
offer to settle or payment into court.

“The Honourable Mr. Justice Truscott”