IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150217

Docket: M123489

Registry:
Vancouver

Between:

Baikjoon Park

Plaintiff

And

Maikel Maher Sanad
Abd El Malak

Defendant

Before:
The Honourable Mr. Justice Davies

Reasons for Judgment
Subject to Rule 15-1

I.                
introduction

[1]            
The plaintiff, Baikjoon Park, is a successful businessman whose primary
employment is in the management of a gas station and convenience store in
Valemount, B.C.

[2]            
Mr. Park was injured in a low velocity collision on September 18, 2010,
when, while leaving a shopping mall in North Vancouver, B.C., the vehicle he
was driving was struck from behind by a vehicle driven by the defendant Maikel
Maher Sanad Abd El Malak.

[3]            
The collision occurred when Mr. Park stopped his vehicle shortly after
leaving a stop sign at a marked exit from the shopping mall. Mr. Park made that
second stop because of concerns with oncoming traffic from the left on Westview
Drive onto which he was planning to make a right hand turn.

[4]            
The defendant who had also left the stop sign where he had been stopped
behind Mr. Park’s vehicle failed to stop at the Westview Drive intersection when
Mr. Park did and struck Mr. Park’s vehicle causing less than $1,000 in
damage.

II.              
ISSUES

[5]            
Mr. Park seeks recovery of damages for the injuries he has suffered. He
claims:

1)    Non-pecuniary
losses for pain and suffering and loss of enjoyment of life;

2)    Damages for loss
of future income earning capacity;

3)    Damages for the
cost of his future care; and

4)    Special damages.

[6]            
The defendant denies that he was negligent in failing to stop and in
striking Mr. Park’s vehicle.

[7]            
In the alternative, the defendant says that Mr. Park’s claims for
damages allegedly suffered in the collision are unproven, exaggerated and
unreasonable.

[8]            
The defendant also says that any damages suffered by Mr. Park must be
substantially reduced because of Mr. Park’s pre-existing medical conditions
which would have eventually caused him to suffer the same medical difficulties
which Mr. Park says were caused by the collision.

III.            
LIABILITY

[9]            
Mr. Park explained that the second stop after leaving the stop sign was
because of obscured vision caused by a McDonalds restaurant sign that prevented
full view of possible approaching traffic from the left in the curb lane on
Westview Drive into which he would have to enter to complete a right hand turn
from the parking lot onto Westview Drive.

[10]        
The defendant admitted on examination for discovery and at trial that
both his car and that of the plaintiff were stopped at the stop sign on that
part of the shopping centre that allows vehicles to exit the centre and enter
Westview Drive. He also admitted that Mr. Park’s car moved forward and that Mr.
Park brought the car to a second full stop before entering onto Westview Drive.

[11]        
The defendant further admitted that he saw Mr. Park bring his vehicle to
that second stop while his own vehicle was still moving forward from the stop
sign. He then hit the brakes of his own vehicle which did not stop until it
impacted the rear bumper of Mr. Park’s vehicle.

[12]        
In Cue v. Breitkreuz, 2010 BCSC 617 at para. 15, N. Smith J.
wrote:

[15] Where there has been a
rear-end collision, the onus shifts to the following driver to show that he or
she was not at fault: Robbie v. King, 2003 BCSC 1553 at para. 13. It is
also the case that the driver of a following vehicle must allow a sufficient
distance to stop safely in the event of a sudden or unanticipated stop by the
vehicles ahead: Pryndik v. Manju, 2001 BCSC 502 at para. 21, aff’d 2002
BCCA 639; and Rai v. Fowler, 2007 BCSC 1678 at para. 30.

[13]        
I find that the defendant has failed to discharge the onus to show he
was not at fault in following too closely behind Mr. Park’s vehicle after
leaving the stop sign and before colliding with Mr. Park’s lead vehicle.

[14]        
I also find that Mr. Park was not negligent in proceeding cautiously or
in stopping the second time before completing the right hand turn onto Westview
Drive, given the obstructed view of the street.

[15]        
In result, I find that defendant is 100% at fault for his negligence
that caused the collision and for the damages suffered by Mr. Park as a
consequence of the negligence.

IV.           
DAMAGES AND CAUSATION

[16]        
When the collision occurred on September 18, 2010, Mr. Park was 56 years
old. He is now 61.

A.             
Mr. Park’s Pre-accident Condition

[17]        
At the time of the collision Mr. Park was in generally good health and
led an active lifestyle both at work and otherwise. He testified that before
the collision in addition to his work he enjoyed an active outdoor lifestyle in
which he enjoyed golfing, snowmobiling and skating. For more sedentary leisure
time he particularly enjoyed reading historical treatises.

[18]        
In many respects Mr. Park’s life and enjoyment of it was driven by the
business ventures in which he was involved, including a gas station and
convenience store in Valemount which he operated and in which business he was
the primary employee.

[19]        
For many years after coming to Canada from Korea, Mr. Park, his wife and
their two children all lived in Valemount where he and his wife owned and operated
the gas station and convenience store.

[20]        
About 18 years ago, however, Mrs. Park and their children (a son now 28
and a daughter now 23) moved to Vancouver. Mr. Park still continued to operate
the gas business and since then Mr. and Mrs. Park have had a long distance
relationship.

[21]        
Before the collision Mr. Park would travel the 672 km from
Valemount to the Lower Mainland once every two or three months for visits and
would also take annual vacations in Korea and other parts of Asia.

[22]        
Mr. Park still lives in Valemount where he still works seven days a week
when he is not visiting his family or on vacation. Mr. and Mrs. Park now own a
home in West Vancouver where she resides full time.

[23]        
At the time of the collision Mr. Park and his son were also the owners
and operators of a restaurant in Kamloops at which Mr. Park occasionally
worked.

[24]        
Mr. Park testified that before the collision he was not bothered by the
lengthy driving trips from Valemount to Vancouver of about 7 hours, or to
Kamloops of about 3.5 hours which he took to be with his family or to attend at
the Kamloops restaurant.

[25]        
Mr. Park says that his ability to work is now compromised by his
injuries which preclude as much heavy lifting as he once did and has required
him to hire more staff because of that, as well as because of his far more
frequent absences for medical appointments.

B.             
Mr. Park’s Post-accident Condition

[26]        
After the collision of September 18, 2010, Mr. Park drove from Vancouver
to Valemount. A few days after his arrival in Valemount he noticed increasing
stiffness and pain in his neck and low back.

[27]        
When the pain persisted he went to a walk-in clinic in Valemount on
September 23, 2010. After examination at that clinic he was prescribed Ibuprofen
for pain.

[28]        
Mr. Park subsequently decided that he wished to be looked after by a
Korean doctor and to that end drove to Vancouver where he saw Dr. Juan Kim for
the first time on September 28, 2010.

[29]        
Thereafter Dr. Kim became Mr. Park’s treating physician. Dr. Kim
also provided a medical legal report and testified on Mr. Park’s behalf at
trial.

[30]        
Dr. Kim was an honest and forthright witness whose evidence was largely
consistent with Mr. Park’s own evidence.

[31]        
I find that I can safely rely upon Dr. Kim’s clinical records and
testimony as accurately recording Mr. Park’s complaints to him over the course
of his attendances. I also agree with Dr. Kim’s assessment of Mr. Park as being
“quite stoic in nature and not the type to complain too much.”

[32]        
That assessment informs and supports my own assessment of Mr. Park as a
credible witness who did not exaggerate his injuries, his suffering from them
or their effect upon his work and life.

[33]        
I accordingly do not accept the defendant’s submission that I should
treat Mr. Park’s evidence with caution because of the relatively low
impact of the injury causing collision, or otherwise generally question his
credibility.

[34]        
I also specifically reject the propositions hinted at by counsel for the
defendant but not squarely put to Mr. Park that he had not driven to Vancouver
on the many trips he recorded, that he worked and resided in Valemount less
than he testified, or that his mileage expenses should not be accepted because
they were not verified by gas receipts.

[35]        
While, as I will later discuss, I am of the view that some of the
mileage costs claimed are unreasonable when examined from a special damages
perspective (because some similar treatment could likely have been obtained in
Kamloops rather than in Vancouver) I do not doubt that Mr. Park made each of
the trips for medical appointments for which he claimed mileage compensation
and about which he testified.

[36]        
I find that he made those many trips notwithstanding disruption to his
life and work and the discomfort caused by them because he was comfortable in
dealing with the medical practitioners in the Lower Mainland to whom he was
referred.

[37]        
When Mr. Park first saw Dr. Kim on September 28, 2010, he complained
primarily of headaches, neck pain, and pain in both his upper and lower back.
Dr. Kim ordered x-rays and also prescribed muscle relaxants for pain and
stiffness.

[38]        
Mr. Park returned to see Dr. Kim on October 15, 2010. He then still
suffered from neck and back pain including lower back pain and stiffness but
was now also experiencing numbness of his right buttock, some tingling in his
lower extremities primarily on the right side, and poor sleep. He reported that
while his symptoms varied in intensity they were for the most part constant.
Dr. Kim continued prescribing muscle relaxants.

[39]        
Concerning the x-rays which Dr. Kim had ordered on September 28, 2010, that
were taken on September 30, 2010, Dr. William Craig (an expert in physical and
rehabilitative medicine who testified at trial) wrote in his report of August
15, 2012, that:

He had x-rays of his lumbar spine September 30, 2010. There
were moderate degenerative changes at L4/5 with lesser changes at L1 – L4.
There was a moderate curvature convexed right with an apex at L2/3 and left
apex at L4/5. There were moderate degenerative changes in the facets at L4/5.
The facets are the posterior spinal joints.

X-rays of his neck that day
revealed moderate degenerative changes at C4 –C7 with associated foraminal
encroachment. The foramen is the exit point for the spinal nerves. There was a
decrease in the normal cervical curvature. There were mild degenerative changes
in the C3 – C7 facets. There was a moderate scoliosis convexed left with an
apex at C5.

[40]        
After that second visit to see Dr. Kim on October 15, 2010, Mr. Park did
not again see Dr. Kim for issues related to the collision for 11 months.

[41]        
In the meantime, however, he had, as recommended and referred by Dr. Kim,
attended at approximately 20 chiropractic sessions with Dr. Scott Park in
Coquitlam between October 15, 2010 and April 26, 2011.

[42]        
On September 28, 2011, when Mr. Park did re-attend upon Dr. Kim, he was
again assessed as having suffered a whiplash injury in the collision.
Concerning that visit and others that followed regularly thereafter, Dr. Kim wrote
in a report dated June 9, 2014:

Throughout his course of injury, his symptoms of neck pain,
back pain, leg pain and paresthesia, sleep disturbance, irritability, and
functional impairment have persisted to varying degrees.

Treatment:

As for treatments, he has been treated with the following
measures:

Somatic pain: pain killers, muscle
relaxants, medication for neuropathic pain. he has seen a chiropractor,
acupuncturist, registered massage therapist, physiotherapist, active
rehabilitation. His symptoms of neck and back pain have responded to the above
mentioned treatment modalities and he finds relief from such treatments however
relief is temporary, until symptoms return or relapse.

He has consulted a neurosurgeon and
has also been evaluated by a specialist in physical medicine and
rehabilitation. As per Dr. Heran’s report, Mr. Park reports overall that he is
still symptomatic.

For sleep impairment: nortriptyline, amitriptyline.

[43]        
Those observations are consistent with Mr. Park’s evidence, as well as with
Dr. Kim’s clinical notes of the 12 attendances upon Dr. Kim between September
28, 2011 and May 14, 2014, during which time Mr. Park’s symptoms “waxed and
waned,” but remained largely unalleviated.

[44]        
That is so notwithstanding Dr. Kim’s recommendations that Mr. Park would
benefit from the various passive treatments for which he was referred,
including acupuncture, massage, shiatsu and deep tissue massage, all of which
Mr. Park attended for a total of more than 36 sessions over the period
from October 8, 2011 to October 21, 2014.

[45]        
All of those treatments were given to Mr. Park in the Lower Mainland and
many required him to travel from Valemount.

[46]        
As well as those attendances upon acupuncturists, massage therapists and
other medical professionals, Mr. Park also attended physiotherapy and active
rehabilitation sessions as recommended by Dr. Kim in attempting to obtain
relief from his physical suffering.

[47]        
In addition to his numerous attendances upon Dr. Kim, Mr. Park was also
seen by Dr. William Craig for medical legal assessment at the request of his
counsel and by Dr. Navraj Heran, a neurosurgeon on referral from Dr. Kim.

[48]        
Both Dr. Craig and Dr. Heran provided expert reports and appeared
at trial for cross-examination. The evidence of both was largely consistent
with that of Mr. Park and Dr. Kim, and I find I can safely rely upon the
evidence of both experts, notwithstanding the suggestions to the contrary made
by counsel for the defendant who did not adduce any contradictory medical
evidence.

[49]        
It is also important to note that at the request of Dr. Kim, during the course
of his treatment, Mr. Park attended upon Dr. Jason Clement of Canadian Magnetic
Imaging (“CMI”) on December 24, 2012, for an MRI.

[50]        
The evidence from that December 24, 2012 MRI and the interpretation of
it is important because of its impact upon the issues of causation which I will
soon discuss in more detail.

[51]        
I accept the following evidence from Dr. Heran’s report of May 15, 2014,
concerning his interpretation of the results of that MRI:

Reviewing the MRI scan of his
lumbar spine performed December 24, 2012 at CMI there is degenerative disc
disease at multiple levels with height loss at L1-2 with a disc protrusion
posteriorly that migrates somewhat inferiorly, less so superiorly with mild
left sided foraminal narrowing but no significant right sided involvement. There
is also some lateral recess narrowing on the left side with contact of the left
sided L2 nerve root. The L2-3 level demonstrates generalized bulging of the
disc but no significant foraminal narrowing nor lateral recess stenosis.
Similar findings are identified at L3-4 but, as a consequence, there is a
moderate degree of right sided foraminal stenosis and only mild on the left. At
the L4-5 level there is severe loss of height of the disc with severe narrowing
of the right exiting foramen and compression of his right L4 nerve root. The
radiologist mentioned that the nerve root looks swollen. I find it hard to
establish this. The L5-S1 level demonstrates bilateral pars defects with no
slip of L5 on S1. There is no evidence of nerve root impingement at this level.

[52]        
Dr. Heran then went on to observe:

This gentleman presented clinical
with a right sided L4 radiculopathy. This was supported by the imaging with
evidence of a right L4 nerve being impinged within the foramen at the L4-5
level. From a management standpoint a consideration for decompression would
have been premature given that the majority of disc problems do heal, albeit
sometimes over many years. Furthermore, the multiple levels of pathology would
increase the likelihood of postoperative need for further surgery which would
be then complicated by scarring. Furthermore, the muscle spasms and surgical
intervention may result in accentuated strains upon his back. I recommended to
him further conservative therapy given that he was not requiring significant
management for this i.e. no medications. If his symptoms were to worsen, a
consideration for a right sided L4 nerve root block could be made. It would be
reasonable to have a follow up MRI scan if his symptoms were to persist to see
what the state of his spine was like a year from this last study i.e. December
2013. We put in a request for this.

[53]        
No follow-up MRI was obtained in December of 2013 but Dr. Heran
testified that the length of time in the public system to obtain one could be
very long and there is no evidence that Mr. Park refused to cooperate in relation
to any follow-up.

[54]        
There has never been any surgery or other invasive procedures performed
on Mr. Park to date and I disallowed expert evidence concerning the prospects
or impact of such on Mr. Park’s prognosis for further loss.

[55]        
I did so because of late delivery of a further report from Dr. Heran, as
well as the speculative nature of the opinion from him that counsel for Mr.
Park sought to adduce.

[56]        
Concerning the history of Mr. Park’s injuries, the present state of his
health, as well as his prospect for future recovery, I accept the following
opinion evidence from Dr. Kim in his report of June 9, 2014, which I find to be
consistent with the entirety of the evidence:

Diagnosis and Clinical Impression

Considering the past history and clinical findings, response
to treatment, age and general health of the patient, it is my clinical
impression that Mr. Park suffered:

1.               
An injury to the cervical spine, thoracic spine and lumbar spine
as a consequence of the above noted motor vehicle crash. He reveals clinical
and radiological findings that indicate injury to the cervical and lumbar facet
joints and associated soft tissue elements (i.e. ligaments, tendons, muscles,
fascia, and joint capsules), as well as to the cervical and lumbar
intervertebral discs. There is evidence of nerve root compression of the fourth
right lumbar nerve root as it exits the bony foramen, due to compression by
disc material. Mr. Park has clinical symptoms of right leg paresthesias and
right buttock numbness which clinically correlate with MRI findings of his
lumbar spine.

2.               
Myofascial and discogenic pain with associated pain referral and
protective muscle spasm.

3.               
Secondary Insomnia.

Prognosis:

You have asked my opinion with respect to his prognosis. Mr.
Park has attended our clinic since September of 2010. During that time his
progress has been gradual but positive.

Despite all measures his symptoms do persist. The mobility of
his spine is still restricted by pain and there are still residuals emanating
from cervical and lumbar paraspinal muscles. He does report improvement with
respect to sleep.

It is my opinion that his symptoms will continue to persist
and improvement is likely to continue however gradually. In the long term I
expect his to improve with continued active rehabilitation and reinforcement
with returning to work and staying as functional as possible.
The extent of this recovery is unknown. Should Mr. Park pursue regular physical
fitness and activity as well as a healthy lifestyle, the likelihood of future
complications such as flair ups will be reduced in my opinion. Despite this,
having sustained injury to his spine, predisposes him to continued and
accelerated degeneration of his spine in part due to altered biomechanics and
neurological motor function and control as he compensates for pain, immobility
and spinal dysfunction.

Follow up MRI scan of his lumbar
spine, along with neurosurgical opinion will re assess whether neurosurgery is
a valid option in the future for Mr. Park; at this time there is no clear
surgical option.

[57]        
I also find the evidence of Dr. Craig to be of assistance in assessing
Mr. Park’s present condition and prognosis. In his report of June 26, 2014,
Dr. Craig wrote:

Mr. Park is now over three and a half years out from the
September 18, 2010 accident and continues to be symptomatic in his neck, low
back, and right leg. Given the significant degenerative changes in his
lumbosacral spine, the prognosis is fair to poor for resolution of his leg
symptoms, even with further treatment. I feel that there is some room for
improvement in his symptoms with further treatment. I would expect that there
is a reasonable probability that he will be less symptomatic with prolonged
sitting and standing with further treatment. I suspect though that he will
continue to be symptomatic with more vigorous physical activities such as
lifting or carrying, or attempted running or if he was to return to skiing. I
would agree with Dr. Heran that given the moderate to significant degenerative
changes in his lumbosacral spine that he would have been at risk for developing
a radiculopathy in the future even if he had not had the September 18, 2010
accident. I would agree with Dr. Heran that this likely would have been further
in the future. Had he not been involved in the September 18, 2010 accident, on
the balance of probabilities, he likely would not be having right lumbar
radicular symptoms at present.

He would be at risk of aggravation of their current symptoms
or a more prolonged period of recovery if there was another work, recreational,
or motor vehicle related injury, due to injuries from this accident. There is a
slightly increased risk of accelerated degenerative changes in his neck and
back, due to injuries from this accident.

With further treatment, I would expect that he should be able
to tolerate driving better. I would expect that he should be able to increase
his hours over time, but given that symptoms have been present for this long,
the prognosis is guarded for a return to the hours he was working previously,
and being able to do all elements of his work.

I would expect with further treatment he should be able to
return to playing full games of golf, but the prognosis for a return to skiing
is fair to poor. He would be at risk of aggravation of his current symptoms if
he had a fall skiing and the jarring motions would likely exacerbate his low
back symptoms.

With further treatment, I would expect that he should be
capable of the majority of light to household tasks and light yard tasks.

He is likely at increased risk of
requiring back surgery due to injuries from the September 18, 2010 accident.

C.             
Causation

[58]        
As I noted above, evidence of the existence of degenerative disc disease
affecting areas of Mr. Park’s spine as identified by x-rays taken on September 30,
2010, after the collision, and by the MRI conducted on December 24, 2012,
at Dr. Kim’s request, raise issues concerning the extent that Mr. Park’s
injuries were caused by the collision and, if so, whether and to what extent any
pre-existing conditions should limit his claims for damages in this case.

[59]        
I am assisted in deciding those causation issues by the expert evidence
of Dr. Kim, Dr. Craig, and Dr. Heran, all of whom offered their medical
opinions on the issue of causation.

[60]        
As a background to those opinions it is necessary to observe that prior
to the collision of September 18, 2010, which is the subject of these
proceedings, Mr. Park had attended on Dr. Timothy Kam who was then his family
doctor on July 22, 2008, concerning complaints of right-sided hip pain as well
as pain in his right large toe and lower back.

[61]        
At that time Mr. Park’s wife and children resided in the Kerrisdale area
of Vancouver where Dr. Kam had his practice. Mr. and Mrs. Park subsequently
moved to West Vancouver and Mr. Park did not see Dr. Kam after the July 22,
2008 complaints.

[62]        
There is no record of any recurrence of such complaints until after the
collision of September 18, 2010, which is the subject of this proceeding.

[63]        
Mr. Park testified that the episode of pain for which he visited Dr. Kam
on July 22, 2008, was a one-time occurrence. Under cross-examination he
explained that he did not return to see Dr. Kam as his family physician after
the September 18, 2010 collision because he felt more comfortable with a
Korean doctor and therefore saw Dr. Kim who also became his family physician.

[64]        
Dr. Kam did not testify at trial but his clinical notes were produced
and were the subject of comment by both Dr. Craig and Dr. Heran.

[65]        
Concerning the July 22, 2008 episode, Dr. Craig opined in his report of
June 26, 2014:

I have had the opportunity to
review some additional records from Dr. Kam. The September 6, 2008 note
commented on pain in his right great toe and right low back. On examination, he
was tender with palpation of the right first toe and had mild pain in the right
lumbar muscles. Dr. Kam’s impression was the pain was soft tissue in nature.
The July 22, 2008 note comments on pain behind his right hip that was affecting
his walking. He would get this if he was sitting more than 20 minutes. He was
having pain down his right leg. There was occasional right leg weakness
recorded. Dr. Kam’s impression was that Mr. Park had inflammation of his right
lateral hip.

[66]        
Concerning causation, Dr. Craig went on to say:

Neck: It is my opinion that Mr. Park likely had a moderate
soft tissue injury to his right neck as a result of the September 18, 2010
accident with a cervical facet arthropathy lower on the differential. He may
have had an acute injury to the posterior spinal joints or alternatively
developed an arthropathy due to persisting muscle spasm in this region.

Low Back: It is my opinion that
Mr. Park likely had a moderate soft tissue injury to his low back and possible
lumbosacral disc injury as a result of the September 18, 2010 accident. I would
agree with Dr. Heran that the 2008 records suggest a prior right lumbosacral
radiculopathy. He would have, therefore, been more susceptible to a recurrent
radiculopathy from subsequent injury.

[67]        
Dr. Heran’s opinion on the injuries suffered by Mr. Park in the 2010
collision and on causation is found in his report of May 14, 2014, where he
wrote:

SUMMARY

Mr. Park is an older male who presents with an episode in
2008 of right sided hip region pain. Reviewing the records, this episode
appeared to span two months but the exact duration is not clear. He then had
recurrence of this following the motor vehicle accident of 2010. There was in
addition, myofascial injuries to the neck and low back which have been well
documented by the physicians involved in his care as well as the other treating
practitioners. He appears to have had intermittent problems with a
radiculopathy as it was not well delineated by the assessment of Dr. Craig
during the independent medical examination. It was quite clearly evident at the
time of my examination in 2013.

DIAGNOSES

1) Myofascial injuries involving
cervical and lumbar spine

2) Re-aggravation of right sided L4
radiculopathy

CAUSATION

Upon review of the records and the background of having
seen Mr. Park before, I am convinced that the myofascial injuries are directly
as a consequence of the motor vehicle accident of 2010. Had this motor vehicle
accident not occurred, Mr. Park would not have been rendered symptomatic with
these diagnoses. He has demonstrated significant improvement. He did have a
prior motor vehicle accident that rendered him transiently symptomatic. This
did not have any long term or permanent sequelae. He returned back to his
baseline. Had the 2010 motor vehicle accident not occurred, Mr. Park would not
have been rendered symptomatic in these areas.

The right sided L4 radiculopathy is more difficult to
delineate in terms of etiology. Based on my review of the records I do believe
that the episode in 2008 was a radiculopathy into his right leg. Given the
imaging findings that he has subsequently demonstrated in the distribution
vaguely described in the clinical records, it is likely that was either an L4
or an L5 radiculopathy. It is unlikely it was S1. The problem
appeared to have resolved and was asymptomatic for approximately two years
before the motor vehicle accident of 2010. This motor vehicle accident
rendered him again symptomatic in the same distribution although not
immediately. It is likely the combination of the myofascial strains upon his
spinal axis acting upon an already tight neuroforamen at the L4-5 level on the
right side that redeveloped his symptoms. However, had the motor vehicle
accident not occurred, Mr. Park was probably at risk for development of such
problem with time. The likelihood is that he would have been rendered
symptomatic with an L4 radiculopathy at some point had the motor vehicle accident
not occurred either way, but this would have likely been many years later,
possibly between 5-10 years. His persistent features have demonstrated that
this was not likely related to a focal disc herniation although I did hope that
he would improve with time if a focal disc herniation were evident.

[Emphasis added.]

[68]        
I accept Dr. Heran’s opinions both as a treating physician and an expert
witness.

[69]        
Dr. Heran’s opinions, as well as those of Dr. Craig and Dr. Kim, lead me
to conclude that in assessing Mr. Park’s damages caused by the defendant’s
negligence, deduction for an otherwise appropriate award must be made for his
pre-existing but then asymptomatic medical conditions which put him at risk for
the development of some of the injuries from which he has suffered at some
point in the future even if the collision had not occurred.

[70]        
The need to make such a deduction is founded upon the analysis of
causation and damages enunciated by the Supreme Court of Canada in Athey v.
Leonati, [1996] 3 S.C.R 458 [Athey], and cases decided
thereafter which discuss difficult questions involved in the quantification of
damages in cases where the evidence establishes that the plaintiff suffered
from pre-existing injuries or conditions.

[71]        
In Athey, on the issue of quantification generally, as a matter
of first principles, Major J. wrote at para. 32 for the Court:

…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 (the
“original position”). 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.

[72]        
Concerning the issue of pre-existing injuries or conditions raised by
the evidence in this case, in Athey, Major J. then went on to discuss
the “Thin Skull” and “Crumbling Skull” doctrines. At paras. 34 and 35 he wrote:

34        The respondents argued that the
plaintiff was predisposed to disc herniation and that this is therefore a case
where the “crumbling skull” rule applies. The “crumbling skull” doctrine is an
awkward label for a fairly simple idea. It is named after the well-known “thin
skull” rule, which makes the tortfeasor liable for the plaintiff’s injuries
even if the injuries are unexpectedly severe owing to a pre-existing condition.
The tortfeasor must take his or her victim as the tortfeasor finds the victim,
and is therefore liable even though the plaintiff’s losses are more dramatic
than they would be for the average person.

35        The
so-called “crumbling skull” rule simply recognizes that the pre-existing
condition was inherent in the plaintiff’s “original position”. The defendant
need not put the plaintiff in a position better than his or her original
position. The defendant is liable for the injuries caused, even if they are
extreme, but need not compensate the plaintiff for any debilitating effects of
the pre-existing condition which the plaintiff would have experienced anyway.
The defendant is liable for the additional damage but not the pre-existing
damage: Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages
for Personal Injuries and Death (9th ed. 1993), at pp. 39-40. Likewise, if
there is a measurable risk that the pre-existing condition would have
detrimentally affected the plaintiff in the future, regardless of the
defendant’s negligence, then this can be taken into account in reducing the
overall award: Graham v. Rourke, supra; Malec v. J. C. Hutton
Proprietary Ltd., supra; Cooper-Stephenson, supra, at pp. 851-852.
This is consistent with the general rule that the plaintiff must be returned to
the position he would have been in, with all of its attendant risks and
shortcomings, and not a better position.

[73]        
Counsel for the defendant has submitted that all aspects of Mr. Park’s
ongoing back problems are related to his pre-existing disc problems that would
have occurred in any event. He also submits that the low velocity of the
collision supports that finding.

[74]        
I do not agree.

[75]        
The defendant’s submission ignores the overwhelming cumulative effect of
the evidence of Dr. Heran, Dr. Craig and Dr. Kim, all of whom have opined that
Mr. Park’s injuries were caused by the collision and that his pre-existing
back conditions were asymptomatic at the time of the collision and were
rendered symptomatic by the collision.

[76]        
In the alternative, the defendant submitted that given that Mr. Park is
now more than six years from the first episode of radiculopathy suffered in
2008 and more than four years from the 2010 collision, his present complaints
would likely have manifested in any event so that his damages should be very
substantially reduced.

[77]        
Counsel for Mr. Park acknowledged that some deduction must be made for
Mr. Park’s pre-accident back conditions and the evidence of Dr. Heran that Mr. Park
was at risk of suffering at least some of the back and radiculopathy problems
from which he now suffers. He also, however, noted that the time frame for any
likely onset of back injuries arising from disc degeneration of from 5 to 10
years given by Dr. Heran was admitted by Dr. Heran to be an arbitrary assessment
and also that Dr. Heran testified that the period would run from 2013 when he
first saw Mr. Park.

[78]        
Mr. Park’s counsel accordingly submitted that any deduction for
pre-existing medical frailty should be minimal and applied only to matters that
arise from his present back conditions which would likely not have arisen but
for the accident until at least 2018 to 2023. Mr. McIntosh submitted that in all
of the circumstances a deduction of “no more than 10% of the total damages
award” should be made for Mr. Park’s pre-existing conditions.

[79]        
After considering the totality of the evidence, including the facts that
Mr. Park’s injuries, other than those that are back related, have improved
significantly since the collision and that the extent to which his present back
conditions would likely have occurred on or after the age of 70, even without
the exacerbation and acceleration of those injuries by the collision, I have
determined that a 20% reduction of the otherwise appropriate awards in this case
is necessary to ensure that Mr. Park is not overcompensated with respect to his
post collision conditions not caused by the collision.

D.             
Non-pecuniary Damages

[80]        
The purpose of non-pecuniary damages in personal injury cases is to
compensate the injured party for their pain and suffering, loss of enjoyment of
life and loss of enjoyment of amenities caused by the fault of a tortfeasor.

[81]        
In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, Kirkpatrick J.A.
set out a useful, non-exhaustive list of factors that offer guidance as to what
may influence an award of non-pecuniary damages. The list included the:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

[82]        
Kirkpatrick J.A. went on to say:

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

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

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

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

[83]        
With those considerations in mind I will now assess the compensation to
which I consider Mr. Park is entitled for his pain, suffering, and loss of
enjoyment of life for the injuries he suffered as a consequence of the
defendant’s negligence.

[84]        
On behalf of Mr. Park, Mr. McIntosh asserted that an appropriate award
of non-pecuniary damages, without deduction for his pre-existing conditions,
would be $90,000.

[85]        
In support of that submission he referred me to the following decisions
involving plaintiffs who had suffered serious soft tissue neck and back
injuries including some cases involving exacerbation of pre-existing disc
problems: Zawislak v. Karbovanec, 2012 BCSC 666 ($100,000); Valuck v.
Challandes, 2012 BCSC 324 [Valuck] (100,000); MacAulay v. Field,
2014 BCSC 937 ($75,000); Peso v. Hollaway, 2012 BSCS 1763 ($100,000);
and Crane v. Lee, 2011 BCSC 898 ($100,000).

[86]        
Mr. Neumann, on behalf of the defendant, suggested that any award of
damages should be minimal because of the low impact velocity of the collision
caused by the defendant and what he says is at best a “mild to at one time
moderate whiplash injury” which should have resolved far earlier than Mr. Park and
his doctors have suggested.

[87]        
As I have earlier discussed, Mr. Neumann also suggested that Mr. Park’s
pre-existing degenerative disc conditions should preclude any recovery because his
ongoing back problems are related to pre-existing disc problems that would have
occurred in any event.

[88]        
In support of those submissions Mr. Neumann provided authorities which
included awards for non-pecuniary damages from a low of $3,500 to a high of
$25,000.

[89]        
Other cases are of some, but limited, assistance in determining an award
for non-pecuniary damages.

[90]        
Each person who endures a debilitating injury is unique and the nature
of the injuries suffered by plaintiffs and their life circumstances will rarely
be identical.

[91]        
I must, however, observe that the authorities relied upon by the
defendant are of little assistance in this case.

[92]        
To the extent that the defendant relies on the relatively low velocity
impact of the collision in which Mr. Park suffered his injuries as a basis for
discrediting the seriousness of his injuries, that submission ignores the
medical evidence and does a disservice to Mr. Park.

[93]        
While counsel suggested that I should disbelieve Mr. Park, and accused
him of “case building” by reason of his frequent attendance upon medical
professionals, that proposition was never directly put to Mr. Park and is
contrary to the totality of the evidence, including Dr. Kim’s assessment, with
which I agree, that Mr. Park is “quite stoic in nature and not the type to
complain too much.”

[94]        
On the other hand, the cases cited by counsel for Mr. Park establish to
my satisfaction that for injuries akin to those suffered by Mr. Park an award
in the range of $75,000 to $100,000 (before deduction for his pre-existing
medical conditions) is necessary and appropriate to compensate for his
non-pecuniary losses.

[95]        
I reach that conclusion with specific reference to the following
evidence which I accept:

1)    Dr. Kim’s
prognosis that despite all medical measures undertaken, Mr. Park’s
symptoms persist and have now persisted for more than five years and will
continue to with perhaps some (but gradual) improvement.

2)   
Dr. Heran’s prognosis and recommendations as recorded in his opinion of
June 26, 2014, that:

The recommendations that Dr. Craig
makes for management based on the fact that he does not believe that Mr. Park
has reached maximal medical improvement in his primary medical legal report are
somewhat conflictual as clearly Mr. Park has developed L4 radiculopathy into
his right leg likely before and definitely after the assessment with Dr. Craig
and this confounds any abilities to recover overall. The myofascial components
of his pain definitely have improved. The optimistic approach to him being able
to do all of his usual activities back in a setting where only intermittent
exacerbations would be incurred is therefore not supported by the presence of
the L4 radiculopathy either. Dr. Craig does appropriately note that there is
potential for slightly increased risk of accelerated degenerative changes in
his neck and back due to the injuries from this accident. This is more
importantly for the lumbar spine where he already has prominent degenerative
changes already resulting in narrowing of the space where the nerves pass
through in a setting where he has already been symptomatic in such
distribution.

In my opinion Mr. Park is now well
over two to three years out from the motor vehicle accident which is the time
one would expect him to be plateaued from his myofascial injuries. Your records
support that he has reached a point where he has intermittent neck pain, albeit
not a major concern by the time he saw me, as well as persistent low back pain,
albeit much improved than when it first started following the motor vehicle
accident. What I don’t know is whether the L4 radiculopathy i.e. the radiation
into his right leg, will improve with time. This is possible, however, not
probable, given the imaging abnormalities. Subsequent MRI scan has not yet been
performed. A comparative MRI scan which I have already ordered, requesting this
to be performed around December 2014, will be valuable for further delineation
of true causation for the right sided L4 radiculopathy as it is likely to be
from height loss, disc settling and osteophytes as opposed to a disc
herniation, with the former not getting better with time. If it were to
persist, then a recommendation for intraspinous device for decompression
of the nerve root indirectly is what I would propose. I would not recommend an
aggressive surgery with instrumentation or aggressive open surgery with
laminectomy for decompression. For this reason I would like to see Mr. Park
following his MRI scan of around December 2014.

At this point in time I feel that Mr. Park is limited from
all moderate to heavier activities yet is able to participate in all of his
usual daily activities of light to moderate nature. Assistance would be
required for heavier lifting, repetitive activities requiring bending and
twisting maneuvers. His recreational activities have also been affected and
this is well outlined.

3)    Dr. Craig’s
prognosis to which I earlier referred and quoted at para. 57 of these
reasons.

4)    Mr. Park’s
evidence which I accept, that he is now able to be less physically active and
unable to enjoy outdoor activities that he used to enjoy, is burdened by
headaches when trying to read historical treatises which he used to very much
enjoy, and finds that he is more tired from the standing his work requires and
also less able to do the heavier lifting that he previously did.

[96]        
I do, however, find that Mr. Park’s pain and suffering and loss of
enjoyment of life are less than that suffered by the plaintiffs in those cases
in which the plaintiffs were awarded general damages of $100,000.

[97]        
Although Mr. Park has suffered pain that is chronic, it does however, wax
and wane. He is also still able to enjoy travel to Asia although of a more
sedentary nature than before the collision. He is still also able to make the
long drive from Valemount to Vancouver although with more frequent stops and
discomfort. The sparse evidence of the need for future surgical or other
invasive medical intervention is also insufficient to establish entitlement to
compensation for such eventualities.

[98]        
In all of the circumstances I find that an award of $80,000 would
appropriately compensate Mr. Park for his past, present, and future pain and
suffering and loss of enjoyment of life.

[99]        
By application of the 20% reduction I have previously found to be
necessary to compensate him only for the change from his “original” position
that has been caused by the defendant’s negligence, I award Mr. Park $64,000 to
compensate him for his non-pecuniary losses.

E.             
Loss of Future Earning Capacity

[100]     This case
is unlike many others in that Mr. Park has advanced a claim for loss of future
income capacity but has not pursued one for past loss of earnings.

[101]     Mr. Park’s
decision to not pursue a past loss of earnings is somewhat puzzling since he
did testify about the need to hire more staff to operate his gas station and
convenience store in the years that followed the collision because of its
effect upon his own ability to do all of that which he had previously done.

[102]     In part,
the work limitations about which he testified as requiring the hiring of more
casual staff than had previously been the case arose with respect to his more
limited physical capacity to do work stocking shelves with heavier items, as
well as his lack of stamina and discomfort arising from many hours of standing
at a cash register on a seven day per week basis.

[103]     More
significantly, his many attendances away from his business in Valemount to
attend in Vancouver for medical treatments since the collision, all of which
involved at least two to three days away from his business in Valemount, resulted
in the need to hire more staff to cover work he could otherwise have done as he
had in the past.

[104]     Mr. Park
also led some evidence about his inability to devote as much time as he
previously had to the restaurant business in Kamloops. I am, however, satisfied
by the totality of the evidence that the loss of profit from that venture was
probably caused more by business factors rather than his physical limitations
caused by the collision.

[105]     The only
financial information that Mr. Park produced related to the additional staffing
costs which the gas station business incurred post collision were his own
income tax returns which showed that historically in the tax years from 2005
until 2010 (except in 2007) he had been attributed T4 income from his business
ventures of approximately $25,000 to $27,000.

[106]     For some
reason unknown and unexplained to me, in the tax year 2007 he paid tax on T4 attributed
income of only $11,250.

[107]     After the
collision for the tax year 2011, Mr. Park was attributed T4 income of $17,800;
in 2012, T4 income of $448; and in 2013, T4 income of $10,000.

[108]     No income
information was provided for 2014.

[109]     Mr. Park
testified that the much reduced attribution of T4 income to him in 2012 and
2013 was a result of increased costs and reduction of profits arising because
he could not do the work he would otherwise have done in his business ventures
which at least in part had to be replaced by casual staff.

[110]     All of
that evidence could have been tendered in support of a modest claim for past
loss of earnings but, as I have noted, no such claim was pursued.

[111]     Counsel
for Mr. Park did, however, rely on that same evidence as the basis for a claim
for a modest award of future income earning capacity.

[112]     He
advanced that claim based upon Mr. Park’s testimony that he intends to work for
another nine years (until he is 70) and is still limited by his injuries in the
work he can do, and hurts himself when he does too much.

[113]     Mr.
McIntosh submitted that an award of one year of T4 income of about $25,000
(similar to that lost in 2012) would appropriately and reasonably compensate
Mr. Park for the risk of future loss earnings.

[114]     In
response to that claim the defendant submits that there is no independent proof
of Mr. Park’s reduced work capacity, including no specific evidence of those
casual employees who had to be hired to replace work Mr. Park might otherwise
have done.

[115]     The
defendant submits that the lack of that readily available corroborative
evidence should cause me to wholly discount the T4 evidence relied upon by Mr. Park
to support a theory of income loss attributable to the collision.

[116]     The
defendant submits that since no past loss has been reliably proven, any claim
for future loss is speculative at best and no award should be made for loss of
future earning capacity.

[117]    
In Perren v. Lalari, 2010 BCCA 140, our Court of Appeal settled
the question of how claims for lost impaired earning capacity can be addressed.

[118]    
After a long discussion and review of different approaches that had been
applied in past cases, Garson J.A. stated for the court at para. 32:

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

[119]     It is
unfortunate that counsel for Mr. Park failed to adduce corroborative evidence
of the cost of employing past replacement labour to support Mr. Park’s evidence
about what he could no longer do in his business enterprises.

[120]     I do not,
however, doubt that Mr. Park’s business did incur costs in substituted labour
because of his limitations and his frequent absences for work caused by the
collision. The sheer number of absences from the business alone substantiates
the reliability of his evidence.

[121]     Even if
the number of trips to Vancouver was unreasonable from a special damages
perspective (as I will later discuss) he would still have had to take many
trips (although of perhaps shorter duration) to Kamloops to receive the medical
treatments that he received on the advice of Dr. Kim.

[122]     I have accordingly
concluded that the lack of corroboration of the cost of replacement workers
arising due to Mr. Park’s injuries caused by the defendant is not fatal to his
claim for loss of future income earning capacity.

[123]     Also, Mr.
Park’s tax returns and his own evidence which I accept do offer some evidence
of loss.

[124]     I find
that the evidence establishes a real and substantial possibility that Mr. Park
will suffer a future income loss because of a continuation of the effect of his
injuries upon his work capacity, as well as the risk of accelerated
degenerative change or aggravation from future traumatic or non-traumatic
events.

[125]     Having
said that, I am also satisfied that the quantification of that loss must be
approached with caution given Mr. Park’s failure to adduce available
independent corroborative evidence.

[126]     In all of
the circumstances I find that an award of $15,000 will appropriately compensate
Mr. Park for his future loss of earning capacity. That award must be reduced by
the 20% I have previously found to be necessary to compensate him only for the
change from his “original” position caused by the defendant’s negligence.

[127]     I
accordingly award Mr. Park $12,000 to compensate him for his loss of income
earning capacity.

F.             
Special Damages

[128]     Because
Mr. Park’s claims for special damages are similar in substance to his claims
for compensation for his future care costs I have determined to first address his
special damages claim. The determination of that claim will inform the decisions
I have reached concerning the appropriate compensation for his future care
costs.

[129]     Mr. Park’s
claim for special damages is comprised of two parts: the unpaid costs of past
medical interventions totalling $2,403.14; and, uncompensated mileage costs of
$23,642, based upon 47,284 kilometers of travel (primarily between Valemount
and Vancouver) for medical interventions at $.50 per kilometer.

[130]     The
defendant initially objected to almost all treatment costs incurred after
September 2011 (the date when unpaid claims commenced) on the basis that they
were not initiated by medical professionals or necessary.

[131]     However,
as I understood the defendant’s submissions in argument, the defendant no
longer took that position and did not oppose Mr. Park’s special damages claim
except with respect to mileage.

[132]    
To the extent I may have misapprehended the defendant’s position in
argument, I am in any event satisfied that even without any concession all of
the special damages claimed by Mr. Park with respect to medical intervention
and treatment after September 28, 2011, have been proven as special damages,
entitling Mr. Park to an award of $2,403.14, as claimed under that aspect of
his claim.

[133]    
I reach that conclusion by application of the principles recently
enunciated by Saunders J. in Redl v. Sellin, 2013 BCSC 58 [Redl],
in which he said:

[55] Generally speaking, claims for special damages are
subject only to the standard of reasonableness. However, as with claims for
the cost of future care (see Juraski v. Beek, 2011 BCSC 982; Milina
v. Bartsch (1985), 49 BCLR (2d) 33 (BCSC)), when a claimed expense has been
incurred in relation to treatment aimed at promotion of a plaintiff’s physical
or mental well-being, evidence of the medical justification for the expense
is a factor in determining reasonableness. I accept the argument expressed
through Dr. Frobb, that a patient may be in the best position to assess her or
his subjective need for palliative therapy. I also accept the plaintiff’s
counsel’s argument that in the circumstances of any particular case, it may be
possible for a plaintiff to establish that reasonable care equates with a very
high standard of care. In the words of Prof. K. Cooper-Stephenson in Personal
Injury Damages in Canada, (2d ed., 1996) at p. 166:

Even prior to the Supreme Court’s endorsement of the
restitution principle [in Andrews v. Grand & Toy Alberta Ltd. and Arnold
v. Teno], in the area of special damages the courts had been prepared to
allow optimum care, and damages were awarded for expenses of a character that
stretched far beyond the resources of even an affluent Canadian.

That being said, and while Dr.
Frobb’s paradigm of the patient becoming their own physician may have at least
a superficial appeal, plaintiffs are not given carte blanche to undertake
any and all therapies which they believe will make them feel good.

[134]     All of the
medical interventions claimed by Mr. Park after September 28, 2011, were
recommended by either Dr. Kim or another professional to whom Mr. Park was
referred to by Dr. Kim.

[135]     Except
with respect to where those interventions were incurred (which impacts on the
mileage claim) all of the expenses incurred were also reasonable.

[136]     That
proven damage award of $2,403.14 award must, however, be reduced by 20% to take
account of his pre-accident conditions as previously discussed, resulting in an
award of $1,923.

[137]     I do,
however, agree with the defendant that the mileage claim aspect of special
expenses is in its totality unreasonable.

[138]     While I
agree that case law supports a mileage charge of $.50 per kilometer for the use
of a private vehicle for necessary medical attention (see: Valuck at
para. 86), I am not satisfied that it was reasonable to travel the
distances which Mr. Park travelled.

[139]     I say that
because while it was reasonable to travel to Vancouver to see Dr. Kim as a
Korean speaking physician in whom to repose his care, as well as to see Dr.
Craig and Dr. Heran, it was not reasonable to take all chiropractic,
acupuncture, massage, active rehabilitation and shiatsu treatment in the Lower
Mainland, rather than in the nearer centre of Kamloops or other larger centres
than Valemount (including the much nearer Jasper, Alberta) where practitioners
of such passive therapy would almost certainly have been available to provide
such services and ought to have been considered.

[140]     I am also
satisfied that Mr. Park did not sufficiently account in his mileage claim for
the number of visits to Vancouver he would likely have made in any event for
family purposes.

[141]     After
discounting his claim by the amount of travel that I consider to have been
unreasonable, I find that an award of $10,000 will fairly compensate Mr. Park for
his costs of his necessary travel arising as a consequence of the collision.

[142]     I will
also adjust that award downward by 20% to account for his pre-existing medical
conditions, resulting in an award of $8,000 for this aspect of his special
damages claim.

[143]     Mr. Park’s
special damages will accordingly be allowed in the total amount of $9,923.

G.            
Costs of Future Care

[144]     Mr. Park
claims a total of $4,610 for the costs of his anticipated future medical care
arising from the lasting impact of the collision.

[145]     Mr. Park’s
specific claims are for:

1)    10 sessions of
psychotherapy at a cost of $2,000;

2)    24 sessions with
a kinesiologist at a cost of $1,440; and

3)    18 sessions of
physiotherapy at a cost of $1,170.

[146]     In
addition to those costs, Mr. Park claims $5,000 in future mileage costs (10,000
km at $.50 per km) in order to attend upon the referenced medical professionals
to obtain that future care.

[147]    
In Gignac v. Insurance Corporation of British Columbia, 2012 BCCA
351 [Gignac], our Court of Appeal reviewed principles that govern the
assessment of cost of future care awards. At paras. 28-30, Bennett J.A., for
the court, stated:

[28] In Andrews v. Grand & Toy Alberta Ltd.
(1978), 83 D.L.R. (3d) 452 at 462, Dickson C.J.C. said:

In theory a claim for the cost of future care is a pecuniary
claim for the amount which may reasonably be expected to be expended in putting
the injured party in the position he would have been in if he had not sustained
the injury. Obviously, a plaintiff who has been gravely and permanently
impaired can never be put in the position he would have been in if the tort had
not been committed. To this extent, restitutio in integrum is not
possible. Money is a barren substitute for health and personal happiness, but
to the extent, within reason, that money can be used to sustain or improve the
mental or physical health of the injured person it may properly form part of a
claim.

[29] The purpose of the award for costs of future care is to
restore, as best as possible with a monetary award, the injured person to the
position he would have been in had the accident not occurred.

[30] The award is “based on what
is reasonably necessary on the medical evidence to promote the mental and
physical health of the plaintiff: (Milina v. Bartsch (1985), 49 B.C.L.R.
(2d) 33 (B.C.S.C.) and adopted in Aberdeen v. Zanatta, 2008 BCCA
420 at para. 41.

[148]    
Bennett J.A. also went on to state at para. 32:

[32] The failure of the trial
judge to perform an analysis of each item sought by the plaintiff with respect
to whether there was “some evidentiary link between the physician’s assessment
of pain, disability and recommended treatment and the care recommended by a
qualified health professional” was a legal error.

[149]     Counsel
for Mr. Park asserts that all of the future care costs sought have been
established as being medically necessary because of the recommendations made by
Dr. Craig and Dr. Kim for the future treatment of Mr. Park’s pain and suffering
arising from the collision which continue to wax and wane on a persistent basis,
notwithstanding the numerous similar treatments he had already received for his
injuries.

[150]     The
defendant submits that none of the costs sought should be awarded. He correctly
states that Dr. Heran does not promote ongoing passive therapy and that while
Dr. Craig does recommend such treatment he suggests that those recommendations
should be read as being related primarily to neck related treatments, not the
low back ailments which have been Mr. Park’s main concern since the collision.

[151]     The defendant
also says there is no up-to-date evidence about either the number or duration
of treatments which Dr. Craig and Dr. Kim have recommended in the past so that
if any such treatments are allowed as future care costs their number should be
more limited than suggested by counsel for Mr. Park.

[152]     As
required by Gingas, I will now consider each of the items
of future care for which Mr. Park suggests an award should be made.

1.              
Ten sessions of psychotherapy at a cost of $2,000

[153]    
This claim emanates from the third recommendation in the report of Dr.
Kim dated June 9, 2014, in which he said:

In order to help optimize future improvement and minimize
flair ups as well as improve Mr. Park’s quality of life the following
recommendations are made:

1.         Continued
supervised physical activity and exercise so that intensity and duration of
exercise is graduated appropriately and he does not [reinjure] himself.

2.         Pharmacological
management of his musculoskeletal symptoms.

3.         Psychotherapy for symptoms of
stress due to frustration and impairment. Provision for referral for
psychiatric assessment which also may include pharmacological management for
symptoms.

[154]     The
difficulty with the claim for future care costs presented by counsel for Mr. Park
is that the evidence does not support the quantification of the claim other
than as to the hourly cost of the type of treatment sought.

[155]     Given the
length of time during which Mr. Park has suffered from stress due to
frustration and impairment to which psychotherapy would be addressed without previously
resorting to such treatment, I am not satisfied that the 10 sessions for which
compensation is sought by counsel are all medically necessary.

[156]     Dr. Kim’s
recommendations are, however, worthy of some consideration. I will allow one half
of the amounts claimed, reduced by 20%, by reason of Mr. Park’s pre-existing
medical conditions.

[157]     The award
will be $800.

2.              
Twenty-four sessions with a kinesiologist at a cost of $1,440

[158]     Dr. Craig
recommended active rehabilitation treatment for Mr. Park’s injuries. He also
testified that he did not consider such treatment to be passive and in any
event stated that ongoing active rehabilitation would aid in Mr. Park’s
recovery. Dr. Kim agreed.

[159]     I will accordingly
allow the compensation sought for this therapy of $1,440, reduced by 20%, by
reason of Mr. Park’s pre-existing medical conditions.

[160]     The award
will be $1,150.

3.              
Eighteen sessions of physiotherapy at a cost of $1,170

[161]     Dr. Heran
is not in favour of such further passive treatment while Dr. Craig is, as is
Dr. Kim.

[162]     The
evidence also does establish that physiotherapy offers short term relief of Mr.
Park’s suffering which is still ongoing.

[163]     I find
that the number of sessions sought is also not unreasonable given the waxing
and waning of Mr. Park’s injuries since 18 sessions would comprise only two
sessions per year until age 70.

[164]     I have
concluded that the treatment sought is medically necessary to promote Mr.
Park’s physical and mental health by offering him occasional relief. I
accordingly award the amount claimed, less 20%, by reason of Mr. Park’s
pre-existing medical conditions.

[165]     The award
will be $935.

4.              
Mileage claims for further medical treatment

[166]     In total I
have allowed 47 additional treatment sessions to be taken over a period of
about 10 years. I am satisfied that most of those sessions can be pursued
either in Kamloops which is closer to Valemount or, alternatively in Vancouver often
when Mr. Park makes his usual trips to visit his wife and family.

[167]     An award
of $2,000, reduced by 20%, will in my opinion adequately compensate Mr. Park
for mileage for the ongoing care I have allowed.

[168]     The award
for future mileage cost will be $1,600.

[169]     The total
award for the cost of Mr. Park’s future care needs caused by the defendant’s
negligence is $4,485.

V.             
SUMMARY OF AWARDS

[170]     In result,
Mr. Park is entitled to payment by the defendant of the following amounts for
the damages he has suffered as a consequence of the defendant’s negligence.

Non-pecuniary damages: $64,000;

Loss of future earning
capacity: $12,000;

Special damages: $9,923;

Cost of future care: $4,485.

Total: $90,408

VI.           
COSTS

[171]    
Unless there are matters of which I am unaware which may require further
submissions, the plaintiff is entitled to recover his assessable costs and
disbursements throughout related to this proceeding.

“Mr. Justice Davies”