IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150402

Docket: S144359

Registry:
New Westminster

Between:

Bachittar Singh
Dhaliwal

Plaintiff

And

Kandaya Pillay,
Jeyachandra Pillay

and Marygrace
Annapuranam

Defendants

–
and –

Docket: S144361

Registry:
New Westminster

Between:

Bachittar Singh
Dhaliwal

Plaintiff

And

Nicolas Castro
Rossel

Defendant

Before:
The Honourable Mr. Justice Truscott

Reasons for Judgment

Background

[1]            
Mr. Dhaliwal was involved in two separate motor vehicle accidents
which are the subject of these two claims.

[2]            
The first motor vehicle accident was on October 24, 2010 at the
intersection of 88th Avenue and 168th Street in Surrey, British Columbia when Mr. Dhaliwal’s
vehicle was stopped on 88th Avenue at the intersection and rear-ended by a
vehicle driven by the defendant Kandaya Pillay with the consent of the joint
owners of that vehicle, Jeyachandra Pillay and Marygrace Annapuranam.

[3]            
The second motor vehicle accident was on February 14, 2011 at or near
the intersection of Cambie Street and 39th Avenue in Vancouver, British
Columbia when Mr. Dhaliwal’s vehicle, travelling south on Cambie Street,
was struck from the left side by the defendant’s vehicle which was travelling
west across Cambie Street on 39th Avenue.

[4]            
Liability is admitted by both sets of defendants for their motor vehicle
accidents but they advance the defence of Mr. Dhaliwal failing to mitigate
any damages he may have sustained in both accidents.

Mr. Dhaliwal

[5]            
Mr. Dhaliwal was born in 1949 in India and came to Canada in 1972. He
had completed Grade 10 in India and had excelled in sports as a younger man.

[6]            
He came to Canada on his own and met his wife here and they raised three
children. The oldest is a daughter who lives across the street from their
residence in a house owned by his wife and daughter. A second son lives with Mr. Dhaliwal
and his wife while a third son unfortunately passed away from a heart attack in
2012.

[7]            
In Canada, Mr. Dhaliwal worked originally in the lumber industry in
various sawmills but retired from that employment at age 48 or 49.

[8]            
In retirement he concentrated on Sikh religious studies for which he
held gatherings at his home where he read the Holy Book to the gatherings every
day for sometimes two or three hours each day while sitting cross-legged on the
floor behind the Holy Book and reading it slowly to explain its contents to the
gatherings.

[9]            
Mr. Dhaliwal explains that it is a requirement to sit this way on
the floor as the priests in the temples sit this way.

[10]        
The Holy Book is six inches thick and has dimensions of 22 inches x 14–16
inches and weighs approximately 20–22 pounds.

[11]        
Mr. Dhaliwal also regularly attended the Sikh temples himself.

[12]        
In 2008 he was doing some volunteer work for his son’s company on home
construction and renovation when he fell 10-15 feet from a ladder onto grass,
landing on his left side and turning onto his back, injuring his back, neck and
left shoulder.

[13]        
He says for two or three days after the ladder fall he could only sit
for two or three minutes but by three or four months after he had fully
recovered and was back to the gymnasium lifting weights at his former level.

[14]        
Mr. Dhaliwal is a weightlifter by history and says he also has a
home gym where he uses exercise machines and free weights.

[15]        
He visited his family doctor, Dr. Harjee, for these complaints and initially
says he does not recall the specific treatment he received from him. He was
referred to Dr. Badii in September 2009 but he says he does not recall the
treatment he received there either.

[16]        
He says during treatment he found out he has significant osteoarthritis
in his spine.

[17]        
He agrees he could have had neck pain and low back pain in 2009 but he says
he does not recall.

[18]        
When asked whether he told Dr. Badii in September 2009 that he had
a level of back pain of seven out of ten he says he cannot recall but says he
did have a degree of back pain although he had no problems sitting cross-legged
on the floor until his first accident.

[19]        
He says he may have had stiffness and pain in his low back before the
first accident but says it was not severe, although he agrees he had injections
in his low back and recalls being told to attend physiotherapy prior to the first
accident.

[20]        
In the first accident on October 24, 2010 Mr. Dhaliwal says he was
stopped on 88th Avenue at 168th Street for the traffic light when he felt a
bump to the rear of his vehicle. He was wearing a seatbelt which restrained his
forward movement but says his turban fell off.

[21]        
He says he picked up his turban, opened his seatbelt, exited his vehicle
and telephoned 9-1-1. The police attended but after talking to them he drove
his vehicle home.

[22]        
He says he was feeling pain but was able to control it. At home the pain
increased in his back and in his neck and the next morning he says he was in
more pain and could not do his prayers or his exercising.

[23]        
He visited Dr. Harjee’s office where he originally saw another
doctor but does not recall what treatment he received from that doctor.
Thereafter he continued with Dr. Hajee where he was prescribed medicine
and sent for three or four sessions of physiotherapy for his neck and upper
back, before he could no longer afford these treatments.

[24]        
He says after the first accident he could no longer sit on the floor cross-legged
for prayers because of the pain and he has not used the Holy Book in that
position since that time.

[25]        
He denies it was arthritis in his right knee that prevented him from
sitting cross-legged on the floor although he agrees that he did have an MRI on
his right knee in 2005 and had pain in that knee for which he was taking
medicine as prescribed by his physician.

[26]        
He also says he took medication for arthritis in his hands prior to the
first accident but he says that did not prevent him from handling the Holy Book
cross-legged on the floor.

[27]        
He says he cannot recall if he hurt his right wrist in either accident.

[28]        
In the second accident of February 14, 2011 he was travelling south on
Cambie Street when a pickup truck suddenly crossed in front of his vehicle
travelling west on 39th Avenue. He says he tried to stop but his front bumper
impacted the other vehicle’s rear bumper.

[29]        
In the second accident he says he felt pain in his neck and back as well
as pain in his right groin area and right foot.

[30]        
He consulted Dr. Harjee again who gave him more medication but he
told Dr. Harjee he did not have any money for physiotherapy. Instead he
did stretching at home and walking.

[31]        
Dr. Harjee referred him to Dr. Sudol, a physical medicine and
rehabilitation specialist who saw him five times prior to preparing a medical
legal report of October 3, 2011.

[32]        
Mr. Dhaliwal says Dr. Sudol sent him to the Vancouver General
Hospital for an injection in his low back and to the UBC hospital to get
another injection.

[33]        
Mr. Dhaliwal says he feels like a handicapped person after the
second accident. He says he cannot lift up his grandson nor run with him and he
sits on a bench in the Sikh temple and feels like the elderly people who sit
there as well.

[34]        
He says he can still do a small amount of weight lifting and can go for
walks but he cannot sit cross-legged on the floor.

[35]        
He says following the second accident he can still teach religious
studies at his home by standing or sitting on a chair but not by sitting on the
floor cross-legged.

[36]        
He was sent by the defence for an independent medical examination by Dr. Telfer,
an orthopedic surgeon. He denies telling Dr. Telfer that his neck had
recovered before the second accident.

[37]        
Mr. Dhaliwal says he has a long-term connection with Kelowna
through family and has visited there many times in the past ten years. There
are two Sikh temples in Kelowna and Mr. Sandhu was a member of the
executive committee operating one of the temples. Mr. Dhaliwal met Mr. Sandhu
in 2009 or 2010 and talked to him about his future plans.

[38]        
He says he told Mr. Sandhu of his desire to teach people at a temple
and he says Mr. Sandhu offered him a job as a priest at one of the temples
in Kelowna. They discussed how he would be paid and that he would live in a
house on the temple grounds. He says he told Mr. Sandhu he would accept
the position and he says his wife agreed.

[39]        
He says his wife told him she would come to Kelowna from time to time to
see him and he says he was prepared to leave his grandson behind to take this
position in Kelowna.

[40]        
However Mr. Dhaliwal never took this employment in Kelowna because after
the first accident occurred in 2010 he could no longer sit cross-legged behind
the Holy Book on the floor because of the pain in his back extending up into
his neck.

[41]        
He says a priest has to be able to sit cross-legged on the floor for at
least two hours in the temple and he is not able to do this.

[42]        
He says he would have remained a priest indefinitely if he had been able
to take the job and would have been able to support his family on his earnings.

[43]        
He says he still does gardening as much as he can around his residence
but not as much as he did before the motor vehicle accidents and he obtains
help from his son.

[44]        
He tries to use the exercise equipment at home but otherwise he says he
socializes with his wife and friends.

[45]        
His 2010–2012 tax returns indicate he is separated. Mr. Dhaliwal
says he did not want to stay in the family home all the time and he lives at
another residence owned by another woman whenever he wants.

[46]        
He says he is presently receiving CPP disability benefits in an amount
he cannot recall but he will receive regular CPP benefits at age 65 and he gets
an IWA pension of $525 per month.

[47]        
Presently he says he still gets pain in his groin when he sits but not
when he walks.

[48]        
In his Examination for Discovery he said he could not recall how long his
groin bothered him before it went away completely. At trial he says this is
true for walking or jogging but not for sitting when he still has this pain.

[49]        
He says he can sit in a chair for a couple of hours and does not
experience serious pain. He says he can walk for 40 to 50 minutes two to five
times a week and is able to work out in his home gym approximately three times
a week.

Dr. Harjee

[50]        
Dr. Harjee prepared a report of November 25, 2012. He is Mr. Dhaliwal’s
family physician since 1998 having cared for him following the retirement of Mr. Dhaliwal’s
former family physician.

[51]        
His medical report details joint problems for Mr. Dhaliwal in his
hands and knees in the years prior to 1998 and thereafter through to 2009. He
says in the period 2004–2012 Mr. Dhaliwal was becoming more symptomatic
and limited with his hand and knee problems.

[52]        
He reports Mr. Dhaliwal suffered a fall from a ladder in 2008
leading to a back injury and he referred Mr. Dhaliwal to Dr. Badii, a
rheumatologist/spine specialist in 2009 for further investigation and
management which was conservative, although Dr. Badii did give Mr. Dhaliwal
some injections.

[53]        
Dr. Harjee says as of November 2008 Mr. Dhaliwal was more
disabled from his knees and hand problems and medical disability forms were
completed by him for benefits from the Government of Canada income security
program for these problems, described as degenerative changes.

[54]        
On this form under the heading “relevant physical findings and
functional limitations” Dr. Harjee recorded “progressive pain and
stiffness due to arthritis affecting hands and knees contributing significant
impairment of function unlikely to improve and will likely deteriorate.”

[55]        
On November 13, 2008 Dr. Harjee completed a form for private
medical insurance in which he said Mr. Dhaliwal had difficulty sitting,
standing, bending and lifting but physiotherapy was limited by cost and he had
not yet started.

[56]        
Dr. Harjee believes that Mr. Dhaliwal still would have been
able to do his religious teachings from a cross-legged seating position after
the ladder fall, before the first accident.

[57]        
Dr. Harjee’s records that on February 6, 2009 Mr. Dhaliwal was
getting easily upset and impatient and unable to focus.

[58]        
He records on March 3, 2009 Mr. Dhaliwal complaining of pain in his
back and neck with a range of movement of both with pain.

[59]        
He records on March 13, 2009 Mr. Dhaliwal having complaints of
problems of focus and concentration and neck and back painful ranges of
movement with long-standing fragmented sleep.

[60]        
His record of April 14, 2009 indicates Mr. Dhaliwal saying he did
not feel normal, but confused and had neck and back ranges of movement with
pain.

[61]        
His record of April 28, 2009 indicates Mr. Dhaliwal still complaining
of back pain that he said was killing him.

[62]        
His record of May 26, 2009 records Mr. Dhaliwal complaining of low
back pain that he said he could not tolerate.

[63]        
His record for April 16, 2010 records Mr. Dhaliwal’s sleep as
inadequate and Mr. Dhaliwal as moody and upset. The record indicates he
referred Mr. Dhaliwal for a psychiatric examination for a mood disorder
but he says at trial no such psychiatric report was ever received by him and he
assumes Mr. Dhaliwal did not go for this referral.

[64]        
In his medical legal report Dr. Harjee says that following the
first accident he assessed Mr. Dhaliwal on November 2, 2010 when he noted
marked tenderness in his neck and back with markedly restricted movements of
both.

[65]        
He says he advised Mr. Dhaliwal to continue with Tylenol and
Flexeril which had initially been prescribed by another doctor, and he referred
Mr. Dhaliwal for physiotherapy.

[66]        
He says Mr. Dhaliwal started his physiotherapy and continued on his
medication but he reported severe pain and stiffness involving his neck and
back as well as shoulder and wrist pain and significant headaches.

[67]        
Dr. Harjee referred Mr. Dhaliwal for x-rays and added more
medications and in December 2010 he encouraged Mr. Dhaliwal to change to another
physiotherapist for more active treatment.

[68]        
In December 2010, Dr. Harjee noted physiotherapy was delayed due to
cost and he advised Mr. Dhaliwal of the need to proceed with this. He also
suggested acupuncture, cautious chiropractic treatment and pool activities.

[69]        
Dr. Harjee says the medical condition of Mr. Dhaliwal remained
the same through February 2011 with tenderness and pain in his neck and back
and shoulders and marked restrictions of movement.

[70]        
He saw Mr. Dhaliwal on February 22, 2011 after the second motor
vehicle accident and on examination noted he moved slowly and gingerly. Neck
and back movements were limited with pain as were shoulder movements. Again Dr. Harjee
referred Mr. Dhaliwal for x-rays.

[71]        
Dr. Harjee says Mr. Dhaliwal continued to have the same
complaints but was not able to attend physiotherapy therapy through May 2011. Mr. Dhaliwal’s
treatment amounted to taking medications and doing exercise independently as
well as doing some walking.

[72]        
In July 2011 Dr. Harjee reviewed Mr. Dhaliwal again and on
examination observed movement of his neck, shoulders and back were markedly
restricted with pain.

[73]        
Mr. Dhaliwal had seen Dr. Sudol by then who had treated him
with an injection to his neck which helped briefly and this was repeated in September
2011. Mr. Dhaliwal still was not involved in formal rehabilitation due to
a lack of insurance coverage for it.

[74]        
In December 2011 Mr. Dhaliwal underwent two injections of his lower
spine which helped and he reported 40–50% pain improvement.

[75]        
By January 2012 Dr. Harjee reported Mr. Dhaliwal saying he had
slow improvement and had resumed teaching as a volunteer, but still could not
sit on the floor as required.

[76]        
As of July 2012 Mr. Dhaliwal continued to struggle with neck and
back pain with stiffness though he was trying to do light exercises and also do
some gardening.

[77]        
This remained Mr. Dhaliwal’s medical condition up to the time of Dr. Harjee’s
report.

[78]        
In the portion of the report dealing with “impression and prognosis” Dr. Harjee
says Mr. Dhaliwal had problems prior to the motor vehicle accidents with
his hands and knees as well as problems with his back. He was incapable of
doing heavy work but was functioning otherwise and capable of completing simple
and light activities at home.

[79]        
Dr. Harjee says in the first accident Mr. Dhaliwal sustained
soft tissue strain-type of injuries involving his neck and upper and mid back
as well as worsening of his lower back. He also sustained injuries to his
shoulders and left wrist and as a result of his injuries developed headaches
and difficulty sleeping.

[80]        
In the second accident Mr. Dhaliwal suffered worsening of his neck
and back as well as shoulder injuries. While he had received some injections
from Dr. Sudol that were not particularly effective he eventually underwent
injections under imaging which were more effective with further injections to
be considered.

[81]        
Dr. Harjee says Mr. Dhaliwal’s inability to get coverage for
physiotherapy rehabilitation has likely affected his recovery. He says it is
his opinion Mr. Dhaliwal would still benefit from physiotherapy and
consideration should be given to a personal trainer to assist him with a
recovery program. He also believes Mr. Dhaliwal would benefit from pool
therapy.

[82]        
Dr. Harjee says his prognosis for Mr. Dhaliwal at the time of his
report was not clear but he was prepared to say he would likely endure a
further period of pain and stiffness and would likely continue to be impaired
by the accident-related injuries which would continue to limit him and affect
his ability to pursue activity as desired including occupational pursuits he
had intended.

[83]        
Dr. Harjee says Mr. Dhaliwal will need to focus on a routine
exercise program to sustain any improvement and will continue to require
medications to treat pain, to treat and prevent headaches, and improve his
sleep. This requirement may continue on a long-term basis.

Mrs. Dhaliwal

[84]        
Mrs. Dhaliwal came from India in 1971 with a Grade 7 education and
married Mr. Dhaliwal in 1973 in Vancouver.

[85]        
She says she has worked at the Holy Family Hospital as a dietitian in
the kitchen Sunday to Thursday for the last ten years. She says she was
planning to retire at age 65 when she would get a pension. I assume this was
the plan prior to the motor vehicle accidents of Mr. Dhaliwal.

[86]        
Prior to his motor vehicle accidents Mr. Dhaliwal’s daily routine
was to get up at approximately 5 a.m. or 6 a.m. and read the Holy Book for two
or three hours while sitting cross-legged on the floor. Other people who wanted
to learn would come to the house to learn from him.

[87]        
Prior to his motor vehicle accidents he helped her doing vacuuming,
grocery shopping, cleaning, sometimes cooking, occasionally doing laundry, and
doing the yard work outside.

[88]        
She says his health was good prior to the first accident and he worked
out at the gymnasium.

[89]        
Following the first motor vehicle accident he did not get up until 10
a.m. or 11 a.m. and did not do his morning prayers and he has never done them since.
The Holy Book was put away and he now sits in a chair or on a bed with pillows
at his back holding a small prayer book.

[90]        
He does his prayers standing up and writing on a board and people still
come to their home to learn from him. He is not able to stand or sit for long
periods of time and does not go to the gym any longer. She says he takes
medication and there is a lot of difference in his personality as he now gets
easily irritated.

[91]        
She says she is aware of the offer made to him prior to his two motor
vehicle accidents of a position as a priest in Kelowna and she supports this
move.

[92]        
She does not recall the year that Mr. Dhaliwal was offered a job in
Kelowna by Mr. Sandhu nor does she know when he was to start nor how much he
was to be paid.

[93]        
She does know he was to live on the temple grounds in Kelowna and she
says they were both prepared to leave their grandson, daughter and son in the
lower mainland.

[94]        
Their daughter lives across the street now and their son has his own son
who she says it is important the grandparents spent time with.

[95]        
She says she would have continued working where she is now if he had moved
to Kelowna but she would have visited him in Kelowna until her retirement when
she would have moved to Kelowna to live with him.

[96]        
She says he lives with her most days but also lives at another woman’s
place one or two days a week where he also teaches religious studies.

[97]        
She recalls his fall from the ladder in 2008 and hurting his neck and
low back but she says he recovered sufficiently to go back to work voluntarily for
her son’s renovation company.

[98]        
She says prior to his motor vehicle accidents it was not that difficult
for him to sit though he had arthritis in his low back, knees and neck.

[99]        
Following the motor vehicle accidents she says he also had problems with
his head and when he spoke on radio India he said things that he should not say.

Gurjaggdeep Dhaliwal

[100]     Mr. Dhaliwal’s
son is 28 years of age and has two years of an apprenticeship program in
carpentry from BCIT in 2007 and 2008.

[101]     He says he
started a renovation business in 2008 which has since folded. He lives with his
parents presently.

[102]     He says
his father is a strong person who was always involved with athletics prior to
his motor vehicle accidents and was responsible for the general maintenance of
the property where his parents live.

[103]     He says
his father cut the grass and looked after the flower beds while his mother
looked after the vegetable garden.

[104]     Following
the first accident he says his father stopped taking care of the flowers and
they died and he, the son, started doing the outside maintenance.

[105]     Prior to
his first motor vehicle accident his father used to do his prayers twice a day
sitting cross-legged behind the Holy Book.

[106]     He
confirms his father fell from a ladder in 2008 while helping him in his
renovation business and he says for three or four months his father did not
take care of the grass.

[107]     He says
after the ladder accident in 2008 his father could not lift the Holy Book for
three or four months but thereafter there were no issues until the first
accident occurred.

[108]     He says he
does not know that his father had ongoing back problems or any injury after the
ladder accident and he did not notice his father having problems of confusion
or impatience or being moody. He says his father worked out at the gymnasium four
or five days a week. He says he never saw his father use the equipment at home.

[109]     He says
his father changed after the first accident. He no longer went to the gym to
work out, had difficulty walking upstairs, and could not sit cross-legged on
the floor to read the Holy Book.

[110]     Once the
first motor vehicle accident occurred his father could no longer pray using the
Holy Book and it was put away. Presently his father uses parts of the scripture
when he reads standing up and uses a board to write on.

[111]     He has not
seen his father pick up his grandson and play with him.

Mr. Sandhu

[112]     Mr. Sandhu
is 50 years of age and has lived in Kelowna since 1998. He is a member of a
Sikh temple in Kelowna and is on the executive committee and has served three
terms of two years as general secretary. He says he is the one responsible for
hiring the priests.

[113]     He says he
first met Mr. Dhaliwal in 2009 in Kelowna and met him again in 2010. In
the winter of 2010 or 2011 he says he talked to Mr. Dhaliwal to find out
if he was interested in being a priest at the Kelowna temple. Mr. Dhaliwal
is bilingual and had been acting already as a priest would act.

[114]     He says
the temple has three priests and a vacancy existed at that time.

[115]     He was
satisfied Mr. Dhaliwal was suitable and offered him the job as a priest in
Kelowna and Mr. Dhaliwal accepted. He says the remuneration was to be
$1500 per month with Mr. Dhaliwal to live on the temple grounds with his
wife.

[116]     He
confirms the priest sits on a carpeted floor with his legs crossed behind the Holy
Book as this has been the protocol for generations. Sitting on a chair is not
allowed. Sometimes the priest goes to private residences where the seating is
the same.

[117]     He says Mr. Dhaliwal
never came to Kelowna and he never knew why.

[118]     He says
the oldest priest he has now is 47 or 48 years of age and the youngest 40–42
years of age but there is no requirement to retire at age 65 and in fact the
older the priest the better, as people feel more comfortable with an older
priest.

Dr. Sudol

[119]     Dr. Sudol
is an expert in the field of physical and rehabilitation medicine.

[120]     She
describes herself as a treating specialist for Mr. Dhaliwal and initially
saw him on February 17, 2011 on referral from Dr. Harjee. She also saw him
subsequently through 2011 and more times in 2012 before preparing her to
reports of October 3, 2011 and February 14, 2013.

[121]     She is on
staff at G.F. Strong Rehabilitation Centre and the Vancouver Coastal Health.

[122]     She says
she saw Mr. Dhaliwal for neck and back pain. He reported his fall from a
ladder in 2008 resulting in low back and neck pain and she says he reported
ongoing low back pain with fluctuating neck pain following the ladder fall.

[123]     Mr. Dhaliwal
described his neck and back pain and limited range of motion to her and his
headaches from both accidents as well as right groin pain, right ankle
symptoms, elbow pain and left wrist pain.

[124]     He told
her he was taking Tylenol 3 and Cyclobenzaprine and had taken Tylenol 3 prior
to his motor vehicle accidents.

[125]     On her
initial physical examination of February 17, 2011 following the second motor
vehicle accident, Dr. Sudol observed Mr. Dhaliwal walked with a
hesitant and slowed gait, his back range of motion was significantly limited in
all directions from diffuse pain, as was his neck range of motion. He was
tender in the right groin area and painful in the right ankle area.

[126]     In follow-up
visits Mr. Dhaliwal had the same complaints of pain and Dr. Sudol
encouraged him to continue walking and start a pool type program, continue to
progress with his exercise program, and she gave him a prescription for
physiotherapy as well as a prescription for his disrupted sleep. She also noted
that his mood and energy were low and his low energy level had started prior to
his motor vehicle accidents.

[127]     Mr. Dhaliwal
reported to her that he was walking, stretching and doing light weights at home
for exercise and his neck pain was slightly better although his headaches
continued.

[128]     On subsequent
examination Dr. Sudol observed his neck range of motion was improved and less
painful and she gave him Xylocaine injections in his mid-occipital regions and
in his upper trapezius muscle region.

[129]     He
subsequently reported to her the injections were only helpful for one day and
she therefore injected his suboccipital regions with steroid and lidocaine.

[130]     He
reported to her that with the suboccipital steroid injection he was better and
he had improvement in his neck range of motion, less pain at the base of the occiput
and his headaches had improved by approximately 50%.

[131]     However he
reported an increase in lumbar pain in the left lower lumbar region. His right
groin pain had improved and was not restricting, his right ankle symptoms were still
bothersome but his elbow and left wrist pain had resolved.

[132]     In
September 2011, Dr. Sudol referred Mr. Dhaliwal for left lower lumbar
region blocks which he said worked for four to five months with up to 50%
benefit. He was able to do more exercise and jogging.

[133]     Dr. Sudol
observed occupational therapy records from May 2009 which indicated Mr. Dhaliwal
had reported cognitive symptoms since the ladder fall.

[134]     A CT scan
of the cervical spine on October 6, 2011 disclosed evidence of significant
degenerative changes especially at the C4-5 and C5-6 levels.

[135]     In her
opinion Mr. Dhaliwal continues to be restricted in activities that place
increased strain through his upper extremities and neck, and activities
requiring prolonged sitting, standing, bending, and moderate to heavy lifting which
would likely exacerbate his lumbar symptoms.

[136]     In her
opinion he is partially disabled from pursuing further religious teaching if it
requires prolonged sitting on the floor.

[137]     Her prognosis
is that he is likely to continue to have neck and low back pain which, based
upon his prior history of neck and back pain symptoms from the ladder fall,
were aggravated by the motor vehicle accidents, and his headaches are related
to both motor vehicle accidents.

[138]     A CT scan
of the lumbar spine on December 24, 2009 shows degenerative changes throughout
his lumbar region.

[139]     She says his
neck pain symptoms have improved but he is still symptomatic and will likely be
limited into the future.

[140]     While his
headaches have improved they still occur a few times per week and are worse
with increases of neck pain and will continue into the future.

[141]     She
recommends a structured and guided exercise program which she says would likely
cause further improvement in his neck and back pain as well as some positive
benefit to his headaches.

[142]     She
recommends an exercise program with a physiotherapist, one on one, for
approximately two months for his neck and shoulder girdle, core and pelvic
girdle strengthening, followed by a referral to a kinesiologist for 12–16
sessions, one on one, for four to six months focused on strengthening his neck
and shoulder girdle as well as back and core.

[143]     She also
recommends and has referred Mr. Dhaliwal for more medical branch blocks
for lumbar pain. She says these types of interventions often need to be
repeated.

[144]     She
recommends a referral to a spine pain specialist for an assessment for blocks
in the upper cervical region.

[145]     She also
recommends a gym pass for Mr. Dhaliwal as well as his medication at night
being increased for pain and headache symptoms.

[146]     She says
hospital records after the second accident indicate he was complaining of right
ankle pain, but she understands he has been referred to a podiatrist so she
leaves this issue to his treating physicians.

Dr. Telfer

[147]     Dr. Telfer
examined Mr. Dhaliwal at the request of the defence on July 8, 2014. He
says he had no difficulty understanding Mr. Dhaliwal.

[148]     Dr. Telfer
is an orthopedic surgeon and says he took a history from Mr. Dhaliwal and
reviewed a number of medical records.

[149]     Mr. Dhaliwal
indicated he was 65 years of age and roughly 220 –225 pounds in weight.

[150]     He told Dr. Telfer
in roughly 2005, prior to the first accident, he was working with one of his
sons doing renovation work but was having some trouble with arthritis in his
knees and hands.

[151]     He told Dr. Telfer
he fell off a ladder in 2008 and hurt his left shoulder but he specifically
denied to Dr. Telfer that the fall led him to have any neck or back
problems.

[152]     Dr. Telfer
says in his report he asked Mr. Dhaliwal this question several times and
each time he stated the fall from the ladder did not cause him any trouble with
his neck or back. Dr. Telfer does not know why Mr. Dhaliwal denied
this.

[153]     He denied any
issues with his back and neck prior to the first motor vehicle accident.

[154]     Mr. Dhaliwal
told Dr. Telfer prior to his motor vehicle accidents he was taking Tylenol
3 at night for the arthritis in his knees and hands.

[155]     When
questioned about the nature of the first motor vehicle accident Dr. Telfer
says Mr. Dhaliwal became quite vague with answering questions and the
interview became slightly confrontational. Dr. Telfer considers Mr. Dhaliwal
to have been uncooperative and vague about the first accident.

[156]     When
questioned about the second accident, Dr. Telfer says Mr. Dhaliwal
told him that before this accident he had not improved enough to work, but he
could wash his own dish and maybe do a little floor cleaning. He could not
recall if his back and neck pain were any worse from the second accident than
the back and neck pain he had after the first accident.

[157]     He told Dr. Telfer
he had some new problems from the second accident with some pain in his right
groin and right foot with the foot initially swelling a bit when he walked but
no longer swollen at the time he saw Dr. Telfer.

[158]     He also
told Dr. Telfer the right groin pain had completely disappeared.

[159]     He told Dr. Telfer
his neck was much better and he was able to do light exercises and some
stretching but his back pain remained the same and worsened after five to ten
minutes of walking.

[160]     He told Dr. Telfer
he no longer had headaches.

[161]     He said he
does some gardening including planting, weeding, and kneeling down for this. He
also vacuums and irons clothes.

[162]     Overall Dr. Telfer
says he found the history taking to be frustrating as Mr. Dhaliwal was
guarded and vague.

[163]     On
examination Dr. Telfer’s impression was that Mr. Dhaliwal had some
stiffness of his neck without pain such as one might see in someone with some
degenerative disc disease.

[164]     He also
had low back pain and stiffness and he had some pain in his right foot arch and
his hips were slightly stiff.

[165]     The low
back discomfort seemed to be the major ongoing limitation for Mr. Dhaliwal.

[166]     Mr. Dhaliwal
made no complaint about his fingers and knees and denied any pain there when
asked about this. He showed full range of motion in both fingers and knees with
no tenderness.

[167]     Following
the examination Dr. Telfer reviewed the medical records and saw that Dr. Harjee
had ordered Tylenol 3 for Mr. Dhaliwal’s hands and knees prior to his
motor vehicle accidents and had referred Mr. Dhaliwal to two rheumatologists,
Dr. Badii and Dr. Watterson.

[168]     He also
observed that Dr. Harjee had filled out a Canada pension disability
application for Mr. Dhaliwal on November 12, 2008.

[169]     Dr. Telfer
reviewed x-rays of Mr. Dhaliwal’s lumbar spine and a bone scan of November
5, 2009 that showed findings consistent with degenerative disc disease in the
lower lumbar spine.

[170]     Another CT
scan of the lower lumbar spine on December 24, 2009 showed multilevel
degenerative disease.

[171]     Dr. Telfer
reviewed a note of Dr. Badii’s of May 6, 2010 in which he described
continuing very severe neck and back pain and Dr. Telfer reviewed a
December 15, 2011 x-ray of Mr. Dhaliwal’s ankles and feet indicating the
right foot and ankle were normal but with some degenerative changes noted in
the left first metatarsal phalangeal joint.

[172]     PharmaCare
records indicated Mr. Dhaliwal was consuming significant quantities of
Tylenol 3 right up to the time of the first motor vehicle accident. Throughout
2008 and 2009 the prescription was for 100 Tylenol 3s every month, increased to
120 in September 2010 which continued to the end of November 2012.

[173]     Dr. Telfer
said the medical records show Mr. Dhaliwal had significant back and neck
pain stemming from the ladder fall in 2008 with a complaint to Dr. Badii
in May 2010 of severe pain in both those areas and injections in the lumbar
area that were carried out.

[174]     This led Dr. Telfer
to consider highly unlikely the symptoms would have resolved in six months
leading up to the first accident.

[175]     He
concludes the accident of October 2010 caused some exacerbation of a
pre-existing condition consisting of discomfort and stiffness of the neck and
low back related to the previous injury from the fall from the ladder, together
with associated degenerative changes.

[176]     The second
accident caused a more severe exacerbation of the symptoms related to the neck
and caused significant headaches which had disappeared by the time of Dr. Telfer’s
assessment, along with the neck pain, leaving Mr. Dhaliwal with neck
stiffness.

[177]     He
concluded Mr. Dhaliwal has ongoing pain in the lumbar spine that he
considers is related to Mr. Dhaliwal’s degenerative changes.

[178]     Dr. Telfer
concludes by saying there is an issue with right-sided planter fasciitis which
may be related in some degree to the second accident for which he may receive
benefit with an arch support.

Mr. Worthington-White

[179]     He is an
occupational therapist with expertise in functional assessments. He saw Mr. Dhaliwal
on May 22, 2013 for an interview and work capacity testing and reported to Mr. Dhaliwal’s
counsel.

[180]     He had
read at least portions of the reports of Dr. Harjee and Dr. Sudol.

[181]     The
physical testing satisfied him that Mr. Dhaliwal presented with reasonable
levels of effort although he says it is possible Mr. Dhaliwal is capable of
short periods of slightly greater ability than demonstrated during testing.

[182]     He also
noted there were some observations on distraction of increased fluidity of
movement and reduced pain behaviours although he could not assess the intent
with this inconsistency.

[183]     He
concluded Mr. Dhaliwal is not functional to sit unsupported in the same
position while maintaining a mildly forward flexed spinal posture.

[184]     Overall Mr. Dhaliwal
presented to him with the ability for limited and light strength work, but not
capable of full-time work at that time.

[185]     He made a
number of cost of care recommendations that he says were with the aim of restoring
Mr. Dhaliwal to as close to pre-injury functional level as is reasonably
possible. He says the goal was to eventually return him to physically suitable
full-time work in the future if improvements are made with overall physical
conditioning and pain management.

[186]     He
acknowledges some recommendations of his likely address pre-accident
symptomology as well as post-accident symptomology.

[187]     He agrees
with the recommendations of Dr. Harjee and Dr. Sudol for a
physiotherapist for approximately two months followed by a kinesiologist and
also the provision of a gym pass.

Gym pass

[188]     He costs a
gym pass at $400 – $600 per year (which he says is typically reduced by half at
age 65 and then to be replaced yearly thereafter if medically recommended and
considered accident-related).

Kinesiologist/personal trainer

[189]     He
recommends a time-limited service of a kinesiologist or personal trainer to
design an appropriate exercise program for Mr. Dhaliwal to focus on the
areas of concern and liaise with the treating physiotherapist regarding
appropriate exercises and to ensure safety and independence with required
equipment and exercises.

[190]     He puts
this as a onetime cost of the kinesiologist/trainer service for 12–16
one-on-one sessions at $480–$880 plus mileage of $220–$440.

Physiotherapy

[191]     He
recommends a contingency funding for 8-12 sessions of physiotherapy at $50–$80
per session for a total of $400–$960 per year, to be repeated yearly.

[192]     He puts
this recommendation on the basis of a contingency funding only because he
questions the long-term benefit of passive modalities and he also says there
may be some sharing of pre-and post-accident needs.

Psychological intervention

[193]     He
recommends consideration to a trial of psychological intervention with a
therapist with expertise in pain management although he defers to the medical
professionals on this.

[194]     He sets
out current billable rates for psychological intervention of $175 per hour for 10-15
sessions or $1750 –$2625 total with ongoing treatment as recommended by his
treating therapist.

Occupational therapist

[195]     He
recommends an occupational therapist at $100 per hour for 8-10 hours to work
with Mr. Dhaliwal to increase his involvement in the household tasks,
explore alternative techniques for homemaking or changes of setup, and possible
ergonomic equipment to improve overall activity, tolerance and financial
independence in his home and community. He suggests this might be split between
pre-accident and post-accident complaints.

Vocational consulting

[196]     He
recommends 16 hours of vocational consulting at $100 per hour to assist Mr. Dhaliwal
in exploring future career paths, both gainful and possible volunteer
placements to promote structure in his life and a sense of contribution to his
community.

Botox injections

[197]     He sets
out a possible cost of $1,600 per year and replacement based on a medical recommendation
considered to be related to the motor vehicle accidents.

Homemaking/household cleaning

[198]     He
recommends two hours every other week at $20-$22 per hour of $1,040-$1144 per year
and yearly thereafter.

Yard work

[199]     His
recommendation is for 16 hours per year at $25-$30 per hour or $400-480 yearly
to age 70.

Home maintenance

[200]     His
recommendation is for 10-15 hours of a handyman per year at $35 per hour for
$350-$525 a year cost and yearly thereafter to at least age 70.

Orthotics

[201]     His recommendation
is for orthotics at a cost of $300-$500 and possibly split between pre-accident
and post-accident issues on the basis a podiatrist has recommended this to Dr. Harjee
at a cost of $1500 which Mr. Worthington-White considers to be exceedingly
high.

Submissions

Plaintiff

[202]     Plaintiff’s
counsel submits an appropriate award for Mr. Dhaliwal for general damages
would be $85,000.

[203]     He submits
the award for past wage loss should be based on Mr. Dhaliwal’s intention,
at least by March 1, 2011, to take the employment as a Sikh priest in Kelowna
and therefore he has lost a gross amount to the start of trial on November 1,
2014 of $110,000 to include his expected base pay of $1500 per month, plus room
and board of $500 per month plus MSP coverage of $72 per month plus gratuities
and honoraria of $430 per month.

[204]     It is
submitted his marginal tax rate is no greater than 20% so the net figure for
past wage loss should be $88,000.

[205]     For future
loss of income earning capacity it is submitted Mr. Dhaliwal would have
worked as a priest until age 75, or for another 110 months after November 1,
2014. Applying the discount rate required under the Law and Equity Act,
R.S.B.C. 1996, c. 253 of 1.5%, it is submitted the present value of his
loss would be in the order of $270,000.

[206]     Alternatively
it is submitted a present value based on an analysis of survival possibilities
would bring it to an amount of $241,000.

[207]     For future
cost of care expenses reliance is placed on the report of Mr. Worthington-White
where he set out his analysis of Mr. Dhaliwal’s needs, for which Mr. Peever
of Associated Economic Consultants Ltd. has calculated a present value of all Mr. Worthington-White’s
dollar figures of between $26,726 and $52,944, subject to the court making a finding
of entitlement.

[208]     On the issue
of special damages it is said the parties have agreed on a figure of $99.89 to
be paid by the defendants.

Defence

[209]     Defence
counsel submits the plaintiff was a poor witness in failing to deal with many
questions by saying he simply could not remember, and his evidence is totally
unreliable.

[210]     He was also,
it is submitted, inconsistent in his evidence with the medical records. He told
Dr. Telfer he had no neck and back pain from the ladder fall in 2008 when
the medical evidence clearly indicates otherwise.

[211]     He made no
complaint to Dr. Telfer of hand or knee pain at the same time he was
receiving disability benefits for arthritis in his fingers and knees.

[212]     He then said
that any neck and back pain from the ladder fall only affected him for three or
four months when the medical evidence clearly indicates he was still complaining
of neck and back pain through 2009 and into 2010.

[213]     It is
submitted as a result of the two motor vehicle accidents the plaintiff
sustained only in aggravation or exacerbation of pre-existing neck and back
pain which originated with the ladder fall in 2008 and has continued thereafter.

[214]     It is
submitted the exacerbation has likely resolved by now and any ongoing complaints
are related to his pre-existing condition of degenerative changes in his spine.

[215]     Alternatively
any ongoing exacerbation it is submitted is minimal and does not impair his
function in any significant way.

[216]     The
submission is that non-pecuniary damages should be assessed in the range of
35,000–$40,000.

[217]     For the
claim of loss of future income earning capacity, related to the loss of
employment as a priest in Kelowna, it is submitted that while the preponderance
of evidence is that the offer of the position was made to Mr. Dhaliwal
prior to his first motor vehicle accident, he was never going to take that job
because he had not sought any other comparable position or any other employment
at all since he had retired over ten years prior in 1998.

[218]     In
addition it is submitted that he was never going to leave the Lower Mainland to
move to Kelowna as he had shown no inclination to move in the previous in ten
years and he had never followed through on his agreement with Mr. Sandhu to
take the position as a priest in Kelowna.

[219]     It is also
submitted his injuries from the first motor vehicle accident did not prevent
him from taking the position as a priest in Kelowna as it was his continuing
pre-existing back pain from the ladder fall in 2008 that prevented this, as
well as the arthritis he had in his hands and knees for which he was receiving
CPP disability benefits.

[220]     Accordingly
it is submitted there is no evidentiary basis to award anything for a loss of
future income earning capacity.

[221]     For the
claim of future care costs it is submitted none of Mr. Worthington-White’s
recommendations should be accepted as some are not supported by any evidence,
others are due to pre-accident back and neck pain, and not post accident back
and neck pain, and some are simply unnecessary and a waste of money.

[222]     It is
submitted that in the four years since the first motor vehicle accident the
plaintiff has not sought any of these aids for which Mr. Worthington-White
sets out the costs, and any future care award should be proportionate to the
amount of care that Mr. Dhaliwal has undertaken to this date.

Analysis and decision

Non-pecuniary damages

[223]     I am
completely satisfied from the medical evidence that Mr. Dhaliwal hurt his
back and neck in the 2008 ladder fall and it caused him significant continuing
pain right up to and including to the time of the first motor vehicle accident.

[224]     It is my
conclusion the two motor vehicle accidents only aggravated or exacerbated his
existing active back and neck pain that preceded the first accident.

[225]    
The applicable law has been set out by the Supreme Court of Canada in Athey
v. Leonati, [1996] 3 S.C.R. 458 where Mr. Justice Major, writing for
the Court, said this at p. 473:

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, 74 D.L.R. (4th) 1; Malec v. J. C. Hutton
Proprietary Ltd., 169 C.L.R. 638; 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.

[226]     Mr. Dhaliwal
has pre-existing active back and neck pain which was due to degenerative
changes in his spine and injury from the ladder fall, as well as arthritis in
his hands and knees, and with Mr. Dhaliwal having only aggravated his back
and neck pain in the two motor vehicle accidents and sustained headaches and
right groin pain and right ankle pain, I consider an appropriate award for pain
and suffering to be $50,000.

Past wage loss

[227]     It is my
conclusion Mr. Dhaliwal had an agreement with Mr. Sandhu to take on
the position of priest in Kelowna very shortly prior to his first motor vehicle
accident of October 24, 2010.

[228]     I conclude
the wife of the priest, whose position he was to assume, passed away shortly
prior to the first motor vehicle accident and it makes the most sense to me
that Mr. Sandhu and Mr. Dhaliwal agreed to his employment shortly
after her death because Mr. Sandhu says he began to look for a replacement
at that time. Mr. Dhaliwal was never able to take up that position because
of the consequences of the first motor vehicle accident.

[229]     I am
satisfied, however, that he would have taken up this position if it were not
for his first motor vehicle accident and the injuries he aggravated in that
accident and the fact that as a result of the first motor vehicle accident he
could no longer sit cross-legged before the Holy Book to preach to the people
coming to the temple, which was a requirement as stated by Mr. Sandhu.

[230]     I accept
the opinions of Dr. Harjee and Dr. Sudol that Mr. Dhaliwal can
no longer sit cross-legged on the floor and read from the Holy Book but I
accept the evidence of Dr. Harjee that he would have been able to continue
his religious teachings from a cross-legged seating position after the ladder
fall and prior to the first motor vehicle accident.

[231]     I award Mr. Dhaliwal
a past income loss amount for the period March 1, 2011 to November 1, 2014, or
44 months, at $2000 per month, being the base figure that Mr. Sandhu
offered to Mr. Dhaliwal of $1500, plus $500 for the value of his free room
and board, plus his MSP premiums which Mr. Sandhu said were $57 per month,
for a total of $88,250 gross or $70,600 net after applying a 20% marginal tax
rate.

[232]     The issue
of the amount of gratuities or honoraria Mr. Dhaliwal may have received in
Kelowna in my view is too speculative to support any figure for these claims.

Loss of future income earning capacity

[233]     I have
determined Mr. Dhaliwal would have taken the employment in Kelowna as of
March 1, 2011 and being able to do it, were it not for the effect of the two
motor vehicle accidents on his back and neck.

[234]     Mr. Dhaliwal
says he would have worked there until age 75.

[235]     Mr. Dhaliwal
was born on January 26, 1949 so he will reach age 75 on January 26, 2024, nine
years and three months after the start of trial in November 1, 2014. If he worked
to the age of 75 he would have earned a gross amount over that period of approximately
$216,000.

[236]     Contingencies
must be applied, however, including the prospect of early retirement by design,
or early retirement because of increasing arthritis in his hands and knees or
progressive degenerative changes in his spine increasing his back and neck pain
from the 2008 ladder fall, without the two motor vehicle accidents.

[237]     I consider
a reasonable figure in all the circumstances for this claim to be $175,000.

Future care costs

[238]     Out of the
list of future care costs that Mr. Worthington-White has set out in his
report I accept the following:

Gym pass

[239]     At $400
per year Mr. Worthington-White says his cost figures are typically reduced
by one-half at age 65 and Mr. Dhaliwal has already reached that age.

[240]     I agree a
gym pass is needed to encourage Mr. Dhaliwal to work on the injuries from
his two motor vehicle accidents.

[241]     I will
allow a gym pass at $100 yearly because at least half the cost should be
attributed to his neck and back complaints prior to his first motor vehicle
accident.

Physiotherapy sessions

[242]     Dr. Harjee
recommended physiotherapy for Mr. Dhaliwal’s pre-accident injuries and Mr. Worthington-White
questions the value of a long-term benefit from passive modalities.

[243]     Dr. Sudol
only recommends work with a physiotherapist for two months before transfer to a
kinesiologist for 12-16 sessions.

[244]     I will
accept a one-time amount for physiotherapy sessions of $800 attributed to the
motor vehicle accidents because Dr. Harjee had recommended it prior to the
motor vehicle accidents.

Kinesiologist/trainer

[245]     Mr. Worthington-White
proposes 12-16 one-on-one sessions at $480–$880 plus travel costs of $240-$460.

[246]     Again, Dr. Sudol
suggests sessions with the kinesiologist after physiotherapy of 12-16 times.

[247]     I will
accept a one-time payment of $700 for the service as due to the motor vehicle
accidents.

Psychological intervention

[248]     There is
no evidence of any physician recommending psychological intervention for injury
from these two motor vehicle accidents. Dr. Harjee recommended it prior to
the two motor vehicle accidents.

[249]     This claim
is denied as not proven due to the two motor vehicle accidents.

Psychiatric follow-up

[250]     For the
same reason as given for denying psychological intervention, this claim is
denied as well.

Occupational therapy intervention

[251]     An occupational
therapist is not recommended by any of the physicians.

[252]     Mr. Worthington-White
recommends it to increase Mr. Dhaliwal’s abilities around the household,
improve his activity tolerance and functional independence, and assist him in
his efforts for future employment.

[253]     The evidence
is that he still does some work around the home. He told Dr. Telfer he
still did some gardening, vacuuming and ironing.

[254]     It is my
conclusion all of these recommendations are partially attributable to his pre-accident
injuries as well.

[255]     I have
already concluded that he lost the opportunity to take the priest job in Kelowna
so he would not have needed any assistance from an occupational therapist for
future employment.

[256]     At the
time Mr. Dhaliwal was completely retired and other than the position as a
priest in Kelowna, there is no evidence he was seeking any other kind of
employment at all.

[257]     Because he
lost some of his housekeeping abilities and yard maintenance abilities from the
injuries in these two accidents, I will award him a total of $500 for this
service.

Vocational counselling

[258]     Since I
have already based Mr. Dhaliwal’s past income loss and loss of future
income earning capacity on his loss of his priest position in Kelowna, this
service is irrelevant and is denied.

Injections

[259]     Mr. Worthington-White
only refers to these as possibilities, payable if not funded by MSP, which she
says is typically the coverage for this.

[260]     Dr. Harjee
says Mr. Dhaliwal was receiving injections prior to the two motor vehicle
accidents.

[261]     This claim
is denied as not being due to the injuries in the two motor vehicle accidents and
also because it is covered by MSP for which I have allowed Mr. Dhaliwal
recovery of premiums as part of his loss of income earning capacity claim for
missing out on the employment in Kelowna as a priest.

Botox injections

[262]     No
physician recommended Botox injections and it is therefore denied.

Homemaking/household cleaning

[263]     Mr. Dhaliwal’s
wife does a lot of the in-house cooking and cleaning and his son does the yard work.
Mr. Dhaliwal still contributes to a lesser extent than he did prior to his
motor vehicle accidents.

[264]     Mr. Dhaliwal
is not entitled to rely on his wife and son to do his work that he could have
done before the first motor vehicle accident and I award him $1000 for this
outside service to take account of his evidence that he still does some
gardening, vacuuming and ironing.

Yard work

[265]     I have
included this in the homemaking/household cleaning section of this judgment and
will not award anything further under this heading.

Home maintenance

[266]     Mr. Worthington-White
says Mr. Dhaliwal is still able to do some home maintenance.

[267]     I will
award him $500 for this service.

Orthotics

[268]     Mr. Worthington-White
says typically costs are $300-$500.

[269]     He says Dr. Harjee
said in his report “the podiatrist had recommended orthotics at a cost of
$1500.”

[270]     In the
context of this statement this may have been nothing more than a report by Mr. Dhaliwal
and not a direct report from the podiatrist to Dr. Harjee.

[271]     No
podiatrist report was produced in evidence at trial and I have no idea what the
podiatrist says the problem is with the foot, nor whether that problem is due
to the motor vehicle accidents, or due to Mr. Dhaliwal’s pre-accident
condition.

[272]     As it is, Dr. Harjee
says he would consider orthotics appropriate if it was thought orthotics would
assist the mechanics of Mr. Dhaliwal’s foot and lower extremities and
would aid his back provoked by the two motor vehicle accidents.

[273]     I am not
prepared to award the cost of orthotics based on a report from Dr. Harjee
of what Mr. Dhaliwal said or even what the podiatrist said to Dr. Harjee
without hearing from the podiatrist and being able to determine the answers to
the questions I have posed.

Ergonomic chair/steno chair

[274]     I agree
with defence counsel there is insufficient evidence that Mr. Dhaliwal has
problems sitting in a chair that would justify this expenditure, and there is
no evidence of any physician recommending these items.

[275]     This claim
is denied.

Medication

[276]     Mr. Dhaliwal
took Tylenol 3s in considerable quantities for his complaints prior to the
first motor vehicle accident and it is therefore improper to assign any of that
cost to the two motor vehicle accidents.

[277]     There is
no evidence of any ongoing use by Mr. Dhaliwal of non-prescription medication
and that is denied as well.

“The Honourable Mr. Justice Truscott”