IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150409

Docket: M124296

Registry:
Vancouver

Between:

Tejinder Singh

Plaintiff

And

Yong Ling Wu

Defendant

Before:
The Honourable Madam Justice Devlin

Reasons for Judgment

Introduction

[1]            
The plaintiff, Tejinder Singh, claims damages for injuries sustained as
a result of a motor vehicle accident on July 19, 2010, at the intersection of
Willingdon Avenue and Maywood Street in Burnaby, British Columbia.

[2]            
At the time of the accident, Mr. Singh was driving southbound on
Willingdon Avenue. As he approached Maywood Street, his vehicle was struck on
the driver’s side by Ms. Yong Ling Wu’s vehicle.

[3]            
Liability is not an issue in these proceedings. At issue are Mr. Singh’s
claims for non-pecuniary damages, past and future wage loss, special damages
and the cost of future care. Accordingly, the Court must determine the nature
and extent of the injuries suffered by Mr. Singh and the quantum of
damages for those injuries.

[4]            
The defendant, Ms. Wu, concedes that Mr. Singh suffered
minor/mild soft tissue injuries which resulted in some neck and upper back pain
which have now been resolved. In addition, Mr. Singh suffered pain in the
left wrist and left middle finger which have also resolved.

[5]            
However, causation is very much in dispute respecting the anterior wedge
compression fracture of Mr. Singh’s L1 vertebra and the findings noted on
the MRI of September 2014. The defendant maintains that the findings are not
causally related to the accident. Thus, a key issue to be determined is the
extent of the injuries suffered in the motor vehicle accident and the extent to
which the symptoms Mr. Singh has complained of are the result of that
accident or attributable to subsequent causes unrelated to the motor vehicle
accident.

The Facts

Prior to the Accident

[6]            
Mr. Singh was born on March 1, 1977 in India. He married Parminder
Kaur in October 2002 and they immigrated to Canada in 2003. They have a
five-year old son.

[7]            
Mr. Singh was educated in India and trained as a professional chef.
He became a certified chef in 1997 and was employed in that profession full
time in various positions in India until he moved to Vancouver, British
Columbia in 2003. Upon his arrival in Vancouver, Mr. Singh worked for two
years as a chef for the Handi Restaurant in West Vancouver. Between 2005 and
2007, Mr. Singh worked for Sanjay Foods as a supervisor for the food
preparation section. In 2007, he returned to the Handi Restaurant as full time chef,
and then moved to become a chef at Saffron Restaurant in Burnaby, B.C. As a
chef, he worked at least nine to ten hours per day, six to seven days per week.
His work was physically demanding, and involved lifting, bending and standing
for prolonged periods of time.

[8]            
In February 2009, Mr. Singh, together with Sufi Noor, opened the
Mezbaan Restaurant on Kingsway Avenue in Vancouver, B.C. Mr. Singh and Mr. Noor
had worked together at both the Handi and the Saffron Restaurant. They entered
into a 50/50 partnership agreement and incorporated the company Mezbaan
Restaurant Ltd. (the “Mezbaan”). The Mezbaan was approximately 1,000 square
feet with ten tables, holding a maximum of 32 customers. In addition to the sit
down service, they also offered take-out and delivery service during certain
periods of the day.

[9]            
Between February 2009 and March 2010, Mr. Singh and Mr. Noor
operated the Mezbaan from 11:30 a.m. to 10 p.m., serving a lunch and dinner
buffet, menu service as well as take-out and catering. During this period, Mr. Singh
performed all the duties related to a chef running a kitchen. These duties
included purchasing and storing the supplies, preparing the food and managing
the overall kitchen operation.

[10]        
The lunch hour at the Mezbaan would be busy between noon and 1:30 p.m., and
fairly steady till 2:00 p.m. After the lunch hour rush, Mr. Singh would
spend time cleaning up and preparing items for the dinner.

[11]        
Preparation for dinner would commence about 4:30 p.m. each day. A
similar routine as that for the lunch preparation would take place. The busy
dinner period was 5:30 until 8 p.m. Between 8 and 10 p.m., he would clean-up
the kitchen and prepare some items for the following day. His day usually ended
between 10:30 and 11 p.m. During this period, Mr. Jonathon was hired to
assist with a variety of tasks three to four days per week.

[12]        
When time allowed, Mr. Singh would also go out into the community
to promote his restaurant. He would visit the Sikh temple, the community centre
and nearby stores. He would also participate in door-to-door distribution of
flyers advertising the restaurant menu.

[13]        
In March 2010, Mr. Noor sold his 50% share in the Mezbaan to Mr. Singh.
Mr. Singh then sold these shares to Kewal Mehay, who became a partner in
the restaurant business as of April 2010. Between April and July 2010, Mr. Singh
continued to perform the chef duties while Mr. Mehay assumed the role
previously occupied by Mr. Noor. During this time, Mr. Singh continued
to work nine to ten hours per day, seven days per week.

[14]        
At the time of the accident, Mr. Singh was residing in a two
bedroom basement suite in Vancouver together with his wife, son and his
mother-in-law. He was in good health and enjoying a healthy and active
lifestyle, although the demands of his job limited his ability to engage in
frequent recreational activity. Prior to the accident, Mr. Singh would
occasionally play soccer and cricket and would jog as often as he could,
particularly during the summer months. In addition, he also went to Fitness
World gym where he engaged in a variety of exercises. Mr. Singh also
shared some of the usual duties of running a household, and spending quality
time with his son was a priority for him.

The Accident

[15]        
On July 19, 2010, Mr. Singh was driving southbound on Willingdon Avenue
in Burnaby, B.C. As his vehicle approached Maywood Street, he was struck on the
driver’s side by Ms. Wu’s vehicle. Mr. Singh’s son was in a car seat
in the back seat of the car. While the damage to both vehicles was relatively
minor, Mr. Singh’s vehicle was deemed a total loss. Both Mr. Singh
and Ms. Wu testified that after the collision, they got out of their
vehicles and exchanged information. After doing so, both left the scene in
their vehicles. The police were not contacted.

[16]        
Mr. Singh gave some evidence as to the impact of the collision,
although the extent of the impact is disputed. He testified that he was jolted
forward and that his left hand struck the inside of his vehicle. During his
examination for discovery, Mr. Singh testified that he had no specific
memory of his body movements inside the vehicle other than he hit his hand and
there was a sudden jolt. On cross-examination, Mr. Singh maintained that
his upper body moved forward, but that his seatbelt held him in place. Understandably,
Mr. Singh’s primary concern was the well-being of his son after the
collision.

After the Accident

[17]        
Mr. Singh testified that he suffered injuries to his left wrist and
hand, neck pain, upper and lower back pain, as well as headaches. Mr. Singh
testified that he was initially in shock after the accident and mostly concerned
about the well-being of his son. Later that same evening, Mr. Singh and
his spouse took their son to the emergency at Vancouver General Hospital to
ensure that he had not suffered any injury from the accident. Fortunately, his
son was uninjured and did not require any medical assistance. At this time, Mr. Singh
sought no medical assistance for himself.

[18]        
Mr. Singh testified that after they returned from the emergency he
noticed that he had significant pain and discomfort, causing him to experience
difficulty sleeping. On July 20, 2010, the day following the accident, Mr. Singh
went to the Carepoint Medical Centre where he saw Dr. Bergman, a locum
filling in for his family doctor, Dr. Love. Mr. Singh complained of
tenderness and decreased range of motion during his visit with Dr. Bergman.

[19]        
On August 5, 2010, Mr. Singh saw Dr. Love. He testified that
he told Dr. Love that later that night, in reference to the July 19, 2010
accident, he noticed he had a sore left middle finger and wrist, as well as a
sore left lower back and neck. Mr. Singh continued to see Dr. Love
for several months and also attended physiotherapy sessions, first with South
Fraser Physiotherapy in 2010 and early 2011, then with Point Grey Physiotherapy
in March and April 2012 and then with Central Park Physiotherapy in August and September
2012.

[20]        
Mr. Singh testified that he obtained some relief through the
physiotherapy treatments, exercises and the pain medication. Clearly the
treatments decreased his symptoms and increased his mobility. About a month
after the accident his headache resolved. Initially, his neck pain was between seven
and eight on a ten-point scale, and overtime this too resolved. Similarly, the
left wrist and finger pain resolved fairly quickly after the accident.

[21]        
However, Mr. Singh testified that his upper and lower back pain
persisted. He testified that initially the upper back pain was seven to eight
on the ten-point scale, but by 2012 his pain had reduced significantly. With
respect to the lower back pain, Mr. Singh testified that he first noticed
the pain in the early morning after the accident and that it was a “ten out of
ten”. The pain medication prescribed by Dr. Love provided temporary relief.
Eventually, the lower back pain also decreased in severity and by 2012 the
intensity was reduced to six, although the more work he did, the greater pain
he experienced. Mr. Singh testified that the pain continues today, although
it is not as severe.

[22]        
On cross-examination, Mr. Singh was challenged with respect to the
duration and severity of his pain. Mr. Singh denied the suggestion that
the pain had been reduced to slight or mild, although he had testified at the
examination for discovery that the pain was light and the pain had improved.
When challenged why he did not continue with physiotherapy in 2011 if the pain
persisted, Mr. Singh testified that he was doing the exercises at home and
taking his pain medication, although his last prescription for pain medication
was in December 2010. He acknowledged that the physiotherapy session did
provide him with temporary relief, but he was never pain free.

The Restaurant Business

[23]        
Mr. Singh only missed one day of work immediately following the
accident. Between July and December 2010, Mr. Singh had the assistance of
his friend, Sudhir Kumar, who would come to the restaurant periodically to help
him in the kitchen. In cross-examination, Mr. Singh agreed that Mr. Kumar
would assist two or three days per week, but that he continued to perform the
chef duties. Mr. Singh’s partner, Mr. Mehay, would also assist with
the heavy lifting work. During this time, Mr. Singh testified he was
experiencing pain in his left hand, his neck and back.

[24]        
In early 2011, Mr. Singh and Mr. Mehay hired Avtar Dhamrati to
assist them with running the restaurant. Mr. Dhamrati had some experience
in the restaurant business and Mr. Singh trained him to assist with the
heavy work and preparation in his kitchen. The documentary evidence filed at trial
established that Mr. Dhamrati’s hours of work in 2011 ranged from 160
hours in January and February to 52 hours for October and November.

[25]        
Mr. Singh testified he continued to suffer significant pain in his
upper and lower back while working in the kitchen, making it difficult for him
to perform the physical requirements of a chef. In early 2012, Mr. Dhamrati
left the Mezbaan and was replaced by Mandeep Singh. Mandeep Singh assisted Mr. Singh
with all duties related to running the kitchen. During this period, the Mezbaan
continued to operate during the same hours.

[26]        
In June 2012, a decision was made to hire Harminder Singh, a certified
chef and Mr. Singh’s brother-in-law, to work in the restaurant. At this
time the partners decided to restructure the Mezbaan to focus on increasing
marketing in order to generate more business. With Harminder Singh in the role
of the chef and Mandeep Singh assisting him, Mr. Singh was able to concentrate
on expanding and upgrading the business through working in the service area focusing
on customers and marketing. Mr. Mehay did not seem to have an active role
in the restaurant business at this stage. As a result of the increased marketing,
there was a significant impact on the business. However, in cross-examination, Mr. Singh
acknowledged that the Mezbaan had been using various on-line advertising sites
like JustEat.ca and LazyMeal to both advertise and take on-line orders at least
as early as 2011, and that the services advertised included take-out and
delivery.

[27]        
In terms of his future plans, Mr. Singh testified that he always
planned to work as a chef in the restaurant business. Due to the problem with
his back, he does not think he will ever be able to work full-time as a chef
again.

[28]        
In cross-examination, Mr. Singh acknowledged that he had always had
others assisting him in the kitchen in his role of chef. He also agreed that he
continued to fulfill all of the duties of a chef after the accident, although
with some pain and discomfort. Although the evidence is not clear, I find that
the amount of time Mr. Singh actually performed chef duties was reduced once
Harminder Singh was hired as the full-time chef.

[29]        
With respect to restaurant finances, according to the statement of
income filed at trial, there was an increase in the Mezbaan’s sales from 2012
to 2013. During this time, Mr. Singh was dealing with the customer service
and marketing aspect of the restaurant, while Harminder Singh assumed the
duties of the chef. Mr. Singh agreed on cross-examination that Mr. Mehay
did not receive any remuneration between 2012 and 2014, and he was only
periodically at the restaurant.

The Medical Evidence

Dr. Love

[30]        
Dr. Love, Mr. Singh’s family physician at Care Point Medical
Centre, first saw him on August 5, 2010. The clinical records from Care Point
Medical Centre were admitted into evidence and Dr. Love testified,
providing a detailed explanation of his clinical notes and the progression of Mr. Singh’s
symptoms. Mr. Singh had been to the clinic on July 20, 2010, where he was
seen by Dr. Bergman who was filling in for Dr. Love. Dr. Love
reviewed the file entry made by Dr. Bergman in which Mr. Singh had
advised that he had tenderness, pain and a decreased range of motion in his third
finger and wrist, left hand and upper back. Upon conducting his exam, Dr. Bergman
noted “upper back and neck tender on palpation; range of motion normal” and his
assessment was “soft tissue injury”.

[31]        
At the first appointment with Dr. Love on August 5, 2010, Mr. Singh
reported that “later that night” he had a sore hand and wrist as well as a sore
left lower back, which had not been improving and had been keeping him awake. In
cross-examination and in argument, the defendant focused on the notation “later
that night” to support the position that the accident had not caused the lower
back injury. However, Dr. Love was firm in his testimony that the
reference in his clinical note was to the night of the accident. Dr. Love
conducted a physical examination of Mr. Singh, including his lumbar spine.
Dr. Love found that the lumbar spine backward extension was decreased and
moderately sore. Dr. Love also noted that Mr. Singh had moderate
paravertebral muscle spasm and lateral flexion was mildly decreased bilaterally
and moderately sore. Dr. Love prescribed Naproxen and Tylenol 3 for the
pain, Zopiclone to assist him with sleep and recommended physiotherapy.

[32]        
Mr. Singh saw Dr. Love again on September 8, 2010 and reported
that his neck was still sore and his lower back was sore all day, every day,
which restricted what he could do at work. Dr. Love found the extension
and flexion of his low back to be markedly decreased, sore and painful with
palpation at L3 to S1 to be severe. Dr. Love recommended that Mr. Singh
continue with physiotherapy and prescribed more Tylenol 3’s for pain.

[33]        
On November 1, 2010, at the request of Dr. Love, Mr. Singh
came to see him in order for Dr. Love to complete a CL19 form for ICBC. Mr. Singh
reported that the cervical spine was improving and was not sore every day, but
that there was little improvement to the lumbar spine, which continued to be
sore daily, although not for the entire day. Mr. Singh also reported that
the pain continues to keep him up at night. Dr. Love’s physical
examination confirmed that Mr. Singh was tender and mildly sore,
especially in the lower back. Dr. Love recommended a continuation of the
physiotherapy and prescribed more Tylenol 3’s. Dr. Love also noted that Mr. Singh
advised that he could not do certain activities like run and he could not play
as much with his son.

[34]        
Dr. Love testified about the entries he made on the ICBC CL19 form
and explained that the entries were based on his findings during the November
1, 2010 examination. In particular, he noted that the lumbar spine was still
sore daily, although not all day. In cross-examination, Dr. Love admitted
that he made an error on the form and that he should have noted that the
injuries were preventing his patient from working full duties because he could
not do the heavy lifting as required for his job. Dr. Love explained that
given Mr. Singh was a chef, the only thing he could tell him to do, other
than not working at all, was to recommend he not do any heavy lifting.

[35]        
On December 14, 2010, Mr. Singh saw Dr. Imperial at the clinic
and obtained a further recommendation for physiotherapy due to his continuing soft
tissue injuries to his lower back lumbar region.

[36]        
Approximately 15 months passed before Dr. Love saw Mr. Singh
again on March 9, 2012. He reported that he continued to get sore at least four
day per week, especially if he worked in the kitchen harder than usual, and
that the pain continues to wake him up at night. Dr. Love next saw Mr. Singh
on August 16, 2010, at which time he reported that he was very busy at work and
when he cooks for large functions he can be very sore at the end of the night. He
also reported that he had no pain for the last two months and physiotherapy had
helped. Dr. Love found that Mr. Singh’s lumbar spine extension was
decreased and sore and flexion increased his pain. Dr. Love also noted Mr. Singh
had muscle spasms in the lower back area. He prescribed Tylenol 3 and
recommended he continue with physiotherapy.

[37]        
Dr. Love received an initial report from Central Park Physiotherapy
dated August 25, 2012. The report, written by Melissa Mercado, advised that her
initial findings were that Mr. Singh sustained lumbar strain with
potential injury to the lumbar spine discs. According to Ms. Mercardo’s
report, Mr. Singh reported that two weeks prior he had a sudden increase
lumbar spine pain in the middle of the night and that since then the pain had
been constant and increased. In addition, the symptoms were more aggravated in
the evening.

[38]        
On October 10, 2012, Mr. Singh met with Dr. Love and reported
that he had been sorer recently, although he was doing his normal work which
involved a little lifting and driving. Dr. Love noted all range of motion
was decreased and Mr. Singh had pain at the lower part of the neck, but
his back had improved. Dr. Love recommended that the physiotherapy focus
on both his lower back and neck pain. Dr. Love prescribed Empracert, which
is similar to Tylenol 3.

[39]        
After the October 10, 2012 appointment, Dr. Love did not see Mr. Singh
until August 8, 2013. Mr. Singh reported that the physiotherapy had
assisted him and that he was doing the physiotherapy exercises at home five
times a week, morning and night. Mr. Singh also reported that his lower
back was sore periodically, particularly if he had been driving or if he had to
lift a lot while at work. The physical exam revealed his condition had improved
overall and lumbar spine extension was full but mildly tender.

[40]        
On November 7, 2013, Dr. Cheah examined Mr. Singh and the
records indicate that he had a tender lower back and was prescribed Tylenol 3
and Naproxen.

[41]        
On September 18, 2014, Dr. Love again saw Mr. Singh, who
reported that he had a lot of pain two to three days per week that worsened
with increased activities at work. Mr. Singh advised that his lumbar spine
pain was seven or eight out of ten on those days he worked longer hours. Dr. Love
testified by this time Dr. Hershler had referred Mr. Singh for an MRI.
Dr. Love prescribed 60 Tylenol 3’s and some other anti-inflammatory
tablets. At this session, Dr. Love also recommended Mr. Singh try to
lose weight and gave him a note to enrol in a physiotherapy or rehabilitation
program to learn core exercises.

[42]        
Dr. Love testified that his last session with Mr. Singh was
on  December 16, 2014, at which time he reported that his lower back was no
better but that he was still working ten to twelve hours per day, six days per
week, and was sore whenever he had to bend and lift or after a busy day of
cooking. Mr. Singh also advised that due to his pain he was unable to
attend Fitness World or play cricket. Dr. Love conducted a physical
examination and found Mr. Singh exhibited pain to palpation in his lower
back and his lumbar spine was still deviated to the right. Dr. Love again noted
that he was overweight and advised him to start exercising to lose weight.

[43]        
In cross-examination, Dr. Love explained that while Mr. Singh was
doing the specific exercises the physiotherapist gave him, he was not doing
enough cardiovascular conditioning to enable him to lose weight.

Mr. Karim Sanati

[44]        
Mr. Sanati is a physiotherapist who works as a full-time associate
at South Fraser Physiotherapy. Mr. Sanati first met with Mr. Singh on
August 11, 2010 as a result of a referral from Dr. Imperial of Care Point
Medical Centre. Between August 11, 2010 and January 14, 2011, Mr. Sanati
treated Mr. Singh approximately 30 times, and his clinical notes detail
the progression of the treatment. In his initial assessment, Mr. Sanati
noted that Mr. Singh’s chief complaint was a sharp pain in his back from
his neck to the bottom of his back, as well as headache. Mr. Singh
reported that he was in constant pain which decreased with medication.

[45]        
Mr. Sanati testified that Mr. Singh had pain with movement of
the lumbar spine but that mobility was different depending on the direction. He
also noted that the range of motion in both neck and back was limited and
painful. Mr. Sanati engaged different modalities to reduce the pain, spasm
and inflammation including laser treatments, heat and inferential current
therapy. He also showed Mr. Singh core strengthening exercises. Mr. Sanati
testified that by August 31, 2010 Mr. Singh reported that pain was a
little better, and that by December 2010 he continued to feel better, although
the pain would increase after longer days of sitting and standing. Mr. Singh’s
symptoms significantly improved after attending treatment with Mr. Sanati.
Mr. Sanati did not treat Mr. Singh after mid-January 2011.

Melissa Mercado

[46]        
Ms. Mercado was a physiotherapist with Central Park Physiotherapy
and Sports Injury Clinic. She began seeing Mr. Singh on August 23, 2012
based on a referral from Dr. Love. Ms. Mercado treated him on eight
occasions between August 23, 2012 and September 25, 2012. At the first session,
Mr. Singh advised Ms. Mercado that approximately two weeks earlier he
started to have increased lumbar spine pain in the middle of the night and the
pain always increased at night and towards the end of the day. During the
examination, Mr. Mercado found that the lumbar spine range of motion was
significantly limited and painful in all directions. Ms. Mercado’s initial
assessment was that Mr. Singh had sustained lumbar spine strain with
potential injury to the lumbar spine discs. She recommended he continue with
physiotherapy treatments as well as performing strength and conditioning
exercises. During the course of her treatment, Ms. Mercado noted that Mr. Singh’s
condition did improve, although he continued to have some pain in the lumbar
spine area.

Expert Witnesses

Dr. William Siu

[47]        
Dr. Siu is a radiologist who was called as an expert by the
defendant, Ms. Wu. Dr. Siu examined the August 25, 2010 lumbar spine
x-ray report, the September 26, 2014 MRI lumbar spine report, as well as the
Care Point Medical Centre records from July 20 to September 8, 2010 and the
clinical records of both South Fraser Physiotherapy and Central Park
Physiotherapy.

[48]        
Dr. Siu found that the lumbar spine x-ray performed one month after
the accident showed no evidence of traumatic injury. In particular, the L1
vertebral body was normal in height and contour with no fracture evidence. Dr. Siu
found that the MRI performed in September 2014 showed the L1 vertebral body had
a mild wedge compression deformity. The MRI appearance of the L1 vertebral body
suggested the deformity was due to a fully healed fracture. Based on the amount
of edema (swelling), the trauma that caused the L1 injury was likely at least six
months prior to the MRI study.

[49]        
In Dr. Siu’s opinion, if the accident had caused the L1 compression
fracture, Mr. Singh would have experienced immediate, severe, debilitating
pain with marked tenderness on palpation and decreased range of motion
immediately following the accident, and the clinical records would reflect that.
Considering that the July 20, 2010 clinical report of Dr. Bergman did not
contain any reference to symptoms or signs related to the lumbar region; the
force of the accident was not enough to cause the airbags to deploy; and there was
only minor damage to the vehicles, Dr. Siu’s opinion was that it was
unlikely the collision had enough impact to cause a fracture to Mr. Singh’s
lumbar spine.

[50]        
Dr. Siu also considered the sudden increase lumbar spine pain noted
in the August 2012 physiotherapy report as further support for his conclusion
that the L1 compression fracture shown on the 2014 MRI was caused by a
traumatic event sometime in 2012.

[51]        
In cross-examination, Dr. Siu explained that he considered the
reference to “later that night” in Dr. Love’s August 5, 2010 clinical
report to be a reference to August 4, 2010, and not the night of the accident. Dr. Siu
testified that he would expect to see comments of “sore left side, lower back”
in the July 20, 2010 clinical report if the former were the case. The fact that
the August 5, 2010 report makes reference to lower back pain supports Dr. Siu’s
opinion that Mr. Singh had musculoskeletal ligamentous type injury known
as whiplash. Dr. Siu was adamant that a person suffering from a
compression fracture would immediately report severe pain.

[52]        
Dr. Siu maintained his opinion that the L1 fracture was not caused
by the accident on July 19, 2010 and was likely caused by another traumatic
event, possibly in 2012.

Dr. Jason Clement

[53]        
Dr. Clement is a radiologist who was called as an expert by Mr. Singh.
Dr. Clement examined the results of the August 25, 2010 x-ray of the lumbar
spine and the September 26, 2014 MRI of the lumbar spine. In addition, he
reviewed the medical/legal reports of Dr. William Siu dated November 27,
2014 and of Dr. C. Hershler dated October 15, 2014. Dr. Clement also
reviewed the clinical notes of Care Point Medical Centre dated July 20, 2010 to
November 7, 2013.

[54]        
Dr. Clement’s examination of the MRI report found a mild anterior
wedge compression fracture of the superior portion of the L1 element, which is
a fracture that involved the front portion of the L1 vertebral body. The L1 is
the uppermost lumbar spine. Dr. Clement described the fracture as mild
because of the degree of severity and, specifically, the anterior portion of
the vertebral body lost approximately 15 percent of its height. Dr. Clement
explained that these types of fractures are generally caused by violent forward
flexion, such as in a car accident.

[55]        
Dr. Clement explained after a traumatic injury there will be bone
marrow edema, which is swelling which appears as increased fluid within that
portion of the vertebral body that has been affected. After a period of time,
sometimes weeks and usually months, the bone marrow edema subsides and the
vertebral body usually turns to fat marrow. The MRI revealed that Mr. Singh’s
bone marrow had already been replaced by fat at the L1. In Dr. Clement’s
opinion, the fracture would have occurred anytime up to early 2014.

[56]        
Dr. Clement also explained the x-ray imaging taken on August 25,
2010 revealed a mild curvature at the upper lumbar spine. However, due to the
limitations of x-ray images, it would be easy to miss a compression fracture.
Unlike the x-ray, the MRI provides a cross-sectional image which is more
sensitive to detecting undisplaced fractures.

[57]        
With respect to the timing of the injuries, Dr. Clement’s opinion
states that Mr. Singh “fractured his L1 vertebral body between May 2010
and early 2014” and that “the trauma of July 19, 2010 was very likely
responsible for the vertebral compression fracture demonstrated on the MRI”.

[58]        
Dr. Clement’s opinion was aggressively challenged on cross-examination,
including the basis for Dr. Clement’s assumption that these fractures are generally
caused by “violent” forward flexion. Dr. Clement testified that he had
read a description of the accident in Dr. Love’s notes and Dr. Hershler’s
report, and that was part of what he relied on to form his opinion. Dr. Clement
explained that he meant “in general, most patients who have vertebral
compression fractures from MVA’s that affect the anterior elements are from a
flexion type mechanism which is violent”.

[59]        
In cross-examination, Dr. Clement agreed that in general patients,
even with a mild wedge compression fracture of the L1 vertebrae, would have
significant pain on the day of the accident. Dr. Clement testified that it
is likely that patients will complain of pain at the time and shortly
afterwards of even a mildly displaced fracture assuming that there are not
significant, distracting elements. Dr. Clement testified that in this
particular case he assumed that Mr. Singh’s greatest concern was the
well-being of his young son immediately after the accident and that concern
together with the pain in the left wrist could explain why Mr. Singh did
not immediately report the back pain.

[60]        
Dr. Clement further testified if the MRI had been performed
immediately after the accident the MRI would have identified the fracture. Further,
if the accident did cause the fracture it would not be unusual for the x-rays
to look exactly as they did.

[61]        
Dr. Clement agreed that a portion of Mr. Singh’s injuries were
soft tissue injuries but that usually someone’s pain is multifactorial. In Mr. Singh’s
case, he could have soft tissue injuries in addition to the vertebrae fracture.
Dr. Clement also agreed that the clinical records revealed that Mr. Singh’s
condition improved over the next five months as a result of physiotherapy,
which is consistent with a resolution of a compression fracture.

[62]        
Dr. Clement maintained his opinion that the trauma resulting in the
MRI detected fracture occurred sometime after May 2010 and prior to early 2014.
Further, Dr. Clement’s opinion was it is almost certain that the July 19,
2010 trauma resulted in the L1 compression fracture.

Dr. Cecil Hershler

[63]        
Dr. Hershler was called as an expert witness by Mr. Singh and
his evidence was tendered by way of a video deposition on consent. Dr. Hershler
is a specialist in physical medicine and rehabilitation who provided an expert
medical opinion regarding the nature and extent of the injuries sustained by Mr. Singh
in relation to the accident. Dr. Hershler based his opinion on a single
assessment of Mr. Singh on September 11, 2014, which included an interview
and physical examination, a review of the clinical records provided to him as
well as the x-ray and MRI reports.

[64]        
In his report, Dr. Hershler agreed that the x-ray performed one
month after the accident did not show evidence of the compression fracture at
L1. In his opinion, this was not uncommon because x-rays are limited with
respect to the evaluation of undisplaced or mildly displaced compression
fractures. As well, it is not uncommon, as deformity secondary to compression
fractures can gradually develop and progress overtime.

[65]        
The MRI of the lower back showed a mild anterior wedge compression
fracture of L1 with approximately 15 percent vertebral body height loss. In Dr. Hershler’s
opinion, the wedge compression fracture at L1 was more likely than not caused
by the July 2010 accident. Dr. Hershler based his opinion on the fact that
Mr. Singh had no history of trauma to the lower back prior to the motor
vehicle accident in July 2010, nor had he ever complained of back pain.

[66]        
Dr. Hershler’s prognosis was Mr. Singh would probably remain
symptomatic for the foreseeable future, and it is more likely than not that his
symptoms are permanent and will continue to impact on his ability to work in
the future. Dr. Hershler recommended that Mr. Singh continue with his
home based exercise program and ongoing assistance in his work environment. Dr. Hershler
recommended various topical anti-inflammatory creams as a possible treatment
option.

[67]        
Dr. Hershler was challenged on cross-examination regarding the fact
that Mr. Singh did not immediately report lower back pain. Dr. Hershler
testified that it was not uncommon in his practice to have people who went
through a certain traumatic event to report pain later, just as it was not
uncommon for patients to report that they felt pain immediately.

[68]        
Dr. Hershler testified that Mr. Singh appeared to him to be
the type of person who would not go back to complain to his doctor every time he
experiences pain, which accounts for the 14 month gap between doctor visits. With
respect to the gaps in his physiotherapy treatments, Dr. Hershler
testified that in his experience physiotherapy does provide patients
improvement in pain but on a temporary basis, so they will often only resume
physiotherapy to deal with an increase in pain.

[69]        
The defendant urges me to give little weight to Dr. Hershler’s
opinion for two main reasons. Firstly, Dr. Hershler relied on Mr. Singh’s
description with respect to the accident, the injuries, his recovery and
ability to work, which could be self-serving. Secondly, Dr. Hershler did
not review the clinical records in detail prior to meeting with Mr. Singh.
While Dr. Hershler may not have reviewed all of the medical reports before
he met with Mr. Singh, it is clear from his evidence that he did review
the reports before writing his final opinion. Further, while Mr. Singh may
not have told Dr. Hershler every detail of his recovery and the day to day
working arrangements at the restaurant, I am not persuaded that the foundation
for Dr. Hershler’s report renders it unreliable. When considering the
utility of a doctor’s expert report it is helpful to consider the following
passage from Edmondson v. Payer, 2011 BCSC 118; aff’d 2012 BCCA 114 [Edmondson]
at para. 77:

Simply put, the doctor’s job is to take the patient’s
complaints at face value and offer an opinion based on them. It is for the
court to assess credibility. Of course, if there is a medical or other reason
for the doctor to suspect the plaintiff’s complaints are not genuine, are
inconsistent with the clinical picture or are inconsistent with the known
course of such an injury, the court must be told of that. But it is not the
doctor’s job to conduct an investigation beyond the confines of the examining
room.

Credibility and Reliability of Evidence

[70]        
The factors to be considered when assessing credibility were summarized
by Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398; aff’d 2012 BCCA 296,
as follows at para. 186:

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

[71]        
If the plaintiff’s account of his or her change in physical, mental and/or
emotional state as a result of the accident is not convincing, then the
hypothesis upon which any expert opinions rest will be undermined: Samuel v.
Chrysler Credit Canada Ltd., 2007 BCCA 431 at paras. 15 and 49-50.

[72]        
Counsel for the defendant submits that Mr. Singh’s evidence is not
consistent or reliable. The defendant cautioned me that Mr. Singh’s
complaints about pain levels are not objectively measureable and therefore I
should be careful about accepting his evidence, absent some corroboration. In
support of the submissions respecting the findings I should make in relation to
Mr. Singh’s credibility, counsel for the defendant relies on the
cumulative impact of the following considerations:

1.       Mr. Singh
did not seek immediate medical attention for his injuries on the night of the
accident on July 19, 2010, despite the fact he attended VGH emergency
department with his son. Nor did he report his lower back pain when he saw Dr. Bergman
the next day;

2.       Mr. Singh
did not report any lower back pain until he saw Dr. Love on August 5,
2010. The defendant argues this is inconsistent with an injury that was causing
him constant excruciating pain. Further, the defendant argues when Mr. Singh
reported that “later that night” he had significant back pain, it was in
reference to August 4, 2010. Dr. Love noted that Mr. Singh had a
moderately sore lower back;

3.       The
evidence from the physiotherapists was that Mr. Singh reported a reduction
in pain with treatment and exercises. Physical examination of Mr. Singh
also revealed an improvement in his condition. Yet Mr. Singh was reluctant
to admit that he noticed any improvement from attending physiotherapy;

4.       There
were significant gaps in Mr. Singh’s attendance at both his doctor and
physiotherapy treatments. Mr. Singh did not request a prescription for
pain medication between December 2010 and March 2012. Nor did he see a doctor
during that period;

5.       Mr. Singh
continued to work as a chef, although with some pain and discomfort. Mr. Singh
usually had an assistant in the kitchen even before the accident;

6.       Mr. Singh’s
evidence regarding the severity and frequency of his lower back pain was
inconsistent with his examination for discovery;

7.       Mr. Singh
testified that he exercised four to five times per week, but on examination for
discovery he said he exercised two to three times per day. Further, the
defendant argues the exercises he did were different from what the
physiotherapist had recommended;

8.       Mr. Singh
did not disclose during examination in chief that he lives with his
mother-in-law and that she looks after his son and assists with the household
chores while he and his spouse work full-time; and

9.       Mr. Singh
testified that Mr. Mehay bought his shares of the restaurant from Mr. Noor,
when in fact the shares were purchased from Mr. Singh himself.

[73]        
I found Mr. Singh to be an honest and straightforward witness who
was doing his best to provide detailed testimony. I do not find that he
exaggerated the nature and extent of his injuries, nor did he deliberately
withhold details regarding his personal situation. I do not find a significant
inconsistency or contradiction between Mr. Singh’s evidence at trial and
on examination for discovery.

[74]        
The defendant pointed to the gaps in Mr. Singh’s medical treatment
and the lack of certain details in the clinical records to support the
defendant’s position that Mr. Singh had recovered from any injury incurred
as a result of the accident. I disagree with the defendant’s position that the
medical treatment Mr. Singh sought was inconsistent with someone suffering
from persistent lower back pain. I acknowledge that there may be cases where
the plaintiff’s failure to seek medical attention will result in the court
drawing an adverse inference about the plaintiff’s credibility. I do not
consider this one of those cases.

[75]        
In Roy v. Storvick, 2013 BCSC 1198, Madam Justice Gropper
rejected a similar theory. At para. 100, Gropper J. stated the following:

I disagree with the defence’s theory that the medical treatment
sought by the plaintiff demonstrates that Mr. Roy’s “problems were not as
bad as [he] would lead us to believe.” I expressed my view of this theory in Myers
v. Leng, 2006 BCSC 1582 at para. 50:

I am not troubled by the gap in the
plaintiff seeking treatment. His decision not to continue to see a doctor about
his neck and back complaints was clearly based on a reasonable conclusion that
the doctors could only provide temporary relief from the pain by prescribing
medication and physiotherapy. The plaintiff did not consider either to be
helpful. It is a sensible and practical approach to medical treatment. If
continuous medical treatment can cure you, or make you feel better, then it is
worthwhile to attend on a regular basis. If it cannot, there really is no point
in taking the doctor’s time. The purpose of a seeing a doctor is not to create
a chronicle of complaints for the purpose of proving that you have ongoing pain
from an injury arising from a motor-vehicle accident. Rather than detract from
the accuracy of the plaintiff’s complaint, I consider the plaintiff’s course of
conduct, in not seeing the doctor on a continuous basis, to enhance his
evidence.

[76]        
In Edmondson, Mr. Justice Smith expressed a similar view at para. 37:

…There certainly may be cases where a plaintiff’s
description of his or her symptoms is clearly inconsistent with a failure to
seek medical attention, permitting the court to draw adverse conclusions about
the plaintiff’s credibility. But a plaintiff whose condition neither
deteriorates nor improves is not obliged to constantly bother busy doctors with
reports that nothing has changed, particularly if the plaintiff has no reason
to expect the doctors will be able to offer any new or different treatment. Similarly,
a plaintiff who seeks medical attention for unrelated conditions is not obliged
to recount the history of the accident and resulting injury to a doctor who is
not being asked to treat that injury and has no reason to be interested in it.

[77]        
As noted above, I do not believe that Mr. Singh exaggerated the
nature or extent of the pain he has experienced since the accident. I find the
clinical records and testimony of Dr. Love and the physiotherapists Mr. Sanati
and Ms. Mercado serve to corroborate Mr. Singh’s testimony regarding
his injury and recurring pain. Further, Dr. Hershler testified that in his
experience treating patients with chronic pain, physiotherapy does provide
relief from pain but often the symptoms return once a person goes back to a
normal work routine. Thus, I decline to draw an adverse inference, and accept Mr. Singh’s
testimony relating to the nature and severity of his injuries.

Causation

The Law

[78]        
The plaintiff must establish on a balance of probabilities that the
defendant’s negligence caused or materially contributed to an injury. The
defendant’s negligence need not be the sole cause of the injury so long as it
is part of the cause beyond the range of de minimus. Causation need not
be determined by scientific precision: Athey v. Leonati, [1996] 3
S.C.R. 458 [Athey] at paras. 13-17; Farrant v. Laktin,
2011 BCCA 336 at para. 8.

[79]        
In Mirsaeidi v. Coleman, 2014 BCSC 415, Harris J. further
outlines the principles of causation at para. 50:

The primary test for causation asks: but-for the defendant’s
negligence, would the plaintiff have suffered the injury? The “but-for” test
recognizes that compensation for negligent conduct should only be made where a
substantial connection between the injury and the defendant’s conduct is present:
Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21-23.

[80]        
In special circumstances, the “but-for” test proves unworkable, and the
law has applied a “material contribution” test. As Chief Justice McLachlin
wrote in Clements v. Clements, 2012 SCC 32 at para. 46:

…Exceptionally, a plaintiff may succeed by showing that the
defendant’s conduct materially contributed to risk of the plaintiff’s injury,
where (a) the plaintiff has established that her loss would not have occurred
"but for" the negligence of two or more tortfeasors, each possibly in
fact responsible for the loss; and (b) the plaintiff, through no fault of her
own, is unable to show that any one of the possible tortfeasors in fact was the
necessary or "but for" cause of her injury, because each can point to
one another as the possible "but for" cause of the injury, defeating
a finding of causation on a balance of probabilities against anyone.

[81]        
Causation must be established on a balance of probabilities before
damages are assessed. As McLachlin C.J.C. stated in Blackwater v. Plint,
2005 SCC 58 at para. 78:

Even though there may be several tortious and non-tortious
causes of injury, so long as the defendant’s act is a cause of the plaintiff’s
damage, the defendant is fully liable for that damage. The rules of damages
then consider what the original position of the plaintiff would have been. The
governing principle is that the defendant need not put the plaintiff in a
better position than his original position and should not compensate the
plaintiff for any damages he would have suffered anyway: [Athey].

[82]        
The most basic principle of tort law is that the plaintiff must be
placed in the position he or she would have been if not for the defendant’s
negligence, no better or worse. In accordance with the “thin skull rule”, tortfeasors
must take their victims as they find them, even if the plaintiff’s injuries are
more severe than they would be for a normal person. However, under the
“crumbling skull rule”, the defendant need not compensate the plaintiff for any
debilitating effects of a pre-existing condition which the plaintiff would have
experienced anyway: Athey at paras. 32-35.

Discussion

[83]        
The defendant concedes that Mr. Singh suffered minor/mild soft
tissue injuries as a result of the collision which resolved within six or seven
months following the accident. The defendant argues the anterior wedge
compression fracture of Mr. Singh’s L1 vertebra and the finding noted in
the September 2014 MRI are not causally related to the accident.

[84]        
Mr. Singh’s position is that the defendant caused the multiple
injuries he sustained, including the compression fracture of the L1 vertebra. Prior
to the accident, Mr. Singh was a heathy, active and hard-working 33-year-old
man who was performing all duties associated with the physically demanding job
of a chef. According to Mr. Singh, there is no alternative explanation or
cause for his injuries but-for the accident.

[85]        
There is a significant difference in opinion between the two
radiologists who testified at trial. Although their interpretations of the
August 2010 x-ray and the September 2014 MRI images are essentially the same,
they disagree in their opinions regarding the cause of the injuries. The
defendant’s witness, Dr. Siu, was adamant that any person who suffered a
fracture of the spine would experience immediate, severe pain in the region of
the fracture. Dr. Siu’s conclusion was the mild compression fracture of
the L1 vertebral body was not caused by the accident on July 19, 2010. Dr. Siu
attributes his conclusion to a number of factors including Mr. Singh’s
lack of reporting of pain to the lumbar spine area to Dr. Bergman on July
20, 2010, and his view that the collision was of such low impact it was
unlikely to cause a compression fracture.

[86]        
Dr. Clement agreed that a compression fracture would normally
result in immediate, severe pain which would cause a person to seek medical
attention. However, in Dr. Clement’s opinion it is reasonable to assume Mr. Singh
had been distracted immediately after the accident due to his concern for his
son and the pain from his other injuries. Based on his review of the medical
evidence, including the fact that there had been no evidence of other
significant trauma causing injury, Dr. Clement concluded that the trauma
of July 19, 2010 was likely responsible for the compression fracture
demonstrated on the MRI.

[87]        
Mr. Singh also called Dr. Hershler, who is an expert in
physical medicine and rehabilitation, and the only expert who actually
conducted a physical examination of Mr. Singh. Dr. Hershler found
that Mr. Singh’s history and physical findings are consistent with an
injury to the lumbar spine. The injury includes ligaments, facet joints and
discs of the lumbar spine. Dr. Hershler agreed that injuries to the neck,
upper back, left wrist and hand have all resolved. In his report, Dr. Hershler
concludes:

Based on the fact that Mr. Singh had no history of
trauma to the low back prior to the motor vehicle accident on July 19, 2010,
nor had he ever complained of back pain, it is my opinion that the wedge
compression fracture at L1 was more likely than not caused by that accident. Although
it is most certainly possible for the changes identified at L4/5 & L5-S1
(on MRI) to have predated the accident, the fact that these changes indicate
disc protrusion that are contacting nerve roots and the fact that there is an
annular tear at L5-S1 leads me to opine that it is more likely than not the
accident has resulted in these disc injuries, and that these injuries are the
primary reasons why Mr. Singh (a) has been unable to return to his full
functioning level as a chef, (b) has difficulty sitting and driving, and (c)
now requires assistance, particularly with bending, lifting and carrying.

[88]        
The defendant argues that the foundation upon which both Dr. Clement
and Dr. Hershler base their opinions is flawed because they relied on Mr. Singh’s
description of the accident and his body movements following the collision. The
defendant relies on a portion of the examination for discovery where Mr. Singh
stated he did not know exactly what happened at the time. However, Mr. Singh
also stated at the examination for discovery that there was a “sudden jolt”. Dr. Hershler
testified that Mr. Singh reported to him that he was “jolted by the
impact” and Dr. Hershler inferred that meant Mr. Singh’s body went
forward and backwards but was somewhat restrained by the seat belt.

[89]        
I prefer the opinion of Dr. Clement and Dr. Hershler to that
of Dr. Siu. Of particular significance is the fact that Dr. Siu
viewed the lack of mention of any symptoms or signs related to the lumbar
region in the July 20, 2010 medical records as indicative of a lack of fracture
to the lumbar region. However, the testimony of both Dr. Love and Mr. Singh
established that he did report experiencing pain in the lumbar area the night
of the accident. I accept the opinion of Dr. Clement that a person could
be distracted by other events at the time immediately following the accident
which could result in a delay in reporting the extent of the injuries. The
evidence established that immediately following the accident, Mr. Singh
was focused on the well-being of his young son. It was not until after his
return from the emergency later that night that he first noted the pain in his
lower back.

[90]        
I am satisfied that Mr. Singh has established on a balance of
probabilities that the injuries, including the compression fracture of his L1
vertebra, were caused by the motor vehicle collision on July 19, 2010.

Assessment of Damages

Non-Pecuniary Damages

Law

[91]        
Non-pecuniary damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life and loss of amenities. The compensation
awarded should be fair to all parties, and fairness is measured against awards
made in comparable cases. Such cases, though helpful, serve only as a rough
guide. Each case depends on its own unique facts: Trites v. Penner, 2010
BCSC 882 at paras. 188-189.

[92]        
In Stapley v. Hejslet, 2006 BCCA 34 [Stapley], Kirkpatrick
J.A. outlined the factors to be considered when assessing non-pecuniary damages
at para. 46:

The inexhaustive list of common factors cited in [Boyd v.
Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages
includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of
pain;

(d)        disability;

(e)        emotional suffering;
and

(f)         loss or impairment of
life;

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

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

(h)        impairment of physical
and mental abilities;

(i)         loss of lifestyle; and

(j)         the
plaintiff’s stoicism (as a factor that should not, generally speaking, penalize
the plaintiff: Giang v. Clayton, 2005 BCCA 54).

[93]        
The assessment of non-pecuniary damages is necessarily influenced by the
individual plaintiff’s personal experiences in dealing with his or her injuries
and their consequences, and the plaintiff’s ability to articulate that experience:
Dilello v. Montgomery, 2005 BCCA 56 at para. 25.

[94]        
The correct approach to assessing injuries which depend on subjective
reports of pain was discussed in Price v. Kostryba (1982), 70 B.C.L.R.
397 (S.C.) by McEachern C.J. (recently quoted with approval in Edmondson
at para. 2). In referring to an earlier decision, he said:

In Butler v. Blaylock, [1981] B.C.J. No. 31,
decided 7th October 1981, Vancouver No. B781505, I referred to counsel’s
argument that a defendant is often at the mercy of a plaintiff in actions for
damages for personal injuries because complaints of pain cannot easily be
disproved. I then said:

I am not stating any new principle
when I say that the court should be exceedingly careful when there is little or
no objective evidence of continuing injury and when complaints of pain persist
for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be
fully and properly compensated for any injury or disability caused by a
wrongdoer. But no one can expect his fellow citizen or citizens to compensate
him in the absence of convincing evidence – which could be just his own
evidence if the surrounding circumstances are consistent – that his complaints
of pain are true reflections of a continuing injury.

Conclusion

[95]        
Mr. Singh submits that his injuries warrant an award for
non-pecuniary damages of $100,000. Counsel cites Stapley; Roy v.
Storvick, 2013 BCSC 1198; Majer v. Beaudry et al, 2002 BCSC 746 and Caldwell
v. Ignas, 2007 BCSC 1816, in support of a range of non-pecuniary loss of
between $75,000 and $110,000.

[96]        
Counsel for the defendant contends that the award for this head of
damages should be $35,000. In support of this submission, defendant’s counsel
cites Gulbrandsen v. Mohr, 2012 BCSC 1869; Lumley v. Balilo, 2013
BCSC 1052; Kelly v. Yuen, 2010 BCSC 1794; Carter v. Zhan, 2012
BCSC 595; Manson v. Kalar, 2011 BCSC 373 and Jones v. Ma, 2010
BCSC 1125.

[97]        
I have considered the impact of the injuries on Mr. Singh’s general
well-being in coming to a decision on the appropriate award under this category.
I accept that Mr. Singh will continue to experience some periodic back
pain which will impact on his mobility and overall well-being. With respect to
the impact on Mr. Singh and his family, I accept that his relationship
with his son has suffered due to his injuries from the motor vehicle accident,
but only with respect to the manner in which he is able to physically interact
with his son during playtime. There is no evidence to support a finding that
the injuries have actually reduced the amount of time Mr. Singh can spend
with his son.

[98]        
I accept that Mr. Singh’s recreational activities have been
curtailed, but again, this is not entirely due to the results of the motor
vehicle accident. Given the various demands on his time, including the number
of hours Mr. Singh continues to work at the restaurant and his desire to
spend time with his young son, there is little time left in his day for any
other activities. Prior to the accident, Mr. Singh engaged in what can best
be described as periodic or casual recreational activities.

[99]        
I do not accept Mr. Singh’s submission that his ability to perform
housekeeping chores, such as the laundry, justifies an award.

[100]     Having
reviewed the cases provided by both parties, I assess Mr. Singh’s
non-pecuniary damages at $75,000.

Past Loss of Earning Capacity

Law

[101]     Compensation
for past loss of earning capacity is to be based on what the plaintiff would
have, not could have, earned but for the injury that was sustained: Rowe v.
Bobell Express Ltd., 2005 BCCA 141 at para. 30; M.B. v. British
Columbia, 2003 SCC 53 [M.B.] at para. 49.

[102]     The burden
of proof of actual past events is a balance of probabilities. In contrast, an
assessment of loss of both past and future earning capacity involves
consideration of hypothetical events. The plaintiff is not required to prove
these hypothetical events on a balance of probabilities; rather, the future or
hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation: Athey at para. 27;
Morlan v. Barrett, 2012 BCCA 66 at para. 38.

Conclusion

[103]     Mr. Singh
seeks an award for past income loss totaling $72,000.

[104]     The
defendant takes the position that Mr. Singh is not entitled to an award
for past income loss, as Mr. Singh is self-employed and continued to work
full-time at the restaurant following the accident. Further, the defendant
argued there is no evidence before the Court to establish that the restaurant
suffered any loss as a result of the accident.

[105]     Mr. Singh
tendered a report prepared by Ronald Tidball, a Chartered Accountant and
Chartered Business valuator, addressing past loss of net income. Mr. Tidball
was called as a witness at trial. The key assumptions underlying Mr. Tidball’s
evidence is that the restaurant sustained a loss of revenue due to Mr. Singh’s
injuries and that the restaurant revenue would have grown at 5 percent per year
if he had been injury-free. Mr. Tidball also assumed the loss of gross
profit net of food costs to be 60 percent based on the actual gross profits
achieved in 2010 to 2013. The estimated loss of gross profit was $60,000. Mr. Tidball
also assumed that the lost revenue could have been earned injury-free without
incurring additional labour costs. Mr. Tidball also assumed that the
typical restaurant operating costs are one-third to food and one-third to
labour.

[106]     Mr. Tidball
considered the cost of extra labour to be $68,000. This accounts for the cost
of hiring Mr. Dhamrait and Mandeep Singh, who were hired to assist Mr. Singh
with the heavy activities associated with the kitchen. In addition, Harminder
Singh was hired in June 2012 when a decision was made to redesign the operation
of the business.

[107]     Accordingly
to Mr. Tidball, after accounting for the income reported by Mr. Singh
in 2011 and a correction of some of the figures in his report, the past loss of
earning capacity suffered by Mr. Singh up to December 31, 2013 was $56,500.
Mr. Singh submits that if the losses incurred in 2014 are pro-rated based
on the losses until December 31, 2013, the amount of damages for past loss of
income should be $72,000.

[108]     The
defendant tendered a report by Mark Szekely, an economist, addressing the
findings in Mr. Tidball’s report. Mr. Szekely was called as a witness
at trial. Mr. Szekely was questioned on some of the assumptions Mr. Tidball
relied upon in his report regarding gross profit margins and cost of additional
wages. For example, Mr. Szekely explained that if the cost of additional
wages was not a result of the accident, or even partially a result of the
accident, then the loss calculated by Mr. Tidball would have to be reduced.
As well, Mr. Szekely explained that Mr. Tidball did not seem to
consider other contingencies that might affect the net profit, including things
such as a downturn in business. According to Mr. Szekely, these factors
would impact on the net profit, although there was no further evidence as to
the potential impact.

[109]     Mr. Singh
testified both at trial and on examination for discovery that he always had
others working with him in the restaurant. While I accept that Mr. Dhamrait
and Mandeep Singh assisted him with tasks such as heavy lifting, I am not
persuaded that the reason they were hired was solely as a result of Mr. Singh’s
injuries. Mr. Singh testified that Harminder Singh was hired in June 2012
when he and his business partner, Mr. Mehay, decided to redesign their
operation. After that date, Mr. Mehay appears to have had limited
involvement in the business and no longer took a share of the profits. While
the reorganization may have been initiated as a result of Mr. Singh’s injuries,
it actually resulted in an increase in the profits in 2013. Therefore, it is
appropriate to reduce the amount of loss of revenue from extra labour costs
calculated by Mr. Tidball in his report.

[110]     Accordingly,
I would award Mr. Singh $45,000 for past loss of income.

Loss of Future Earning Capacity

Law

[111]     A claim
for loss of future earning capacity raises two key questions: 1) has the
plaintiff’s earning capacity been impaired by his or her injuries; and, if so
2) what compensation should be awarded for the resulting financial harm that
will accrue over time? The assessment of loss is a matter of judgement that must
be based on the evidence, rather than an application of a purely mathematical
calculation. The appropriate means of assessment will vary from case to case: Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) [Brown]; Pallos v.
Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.) [Pallos];
Pett v. Pett, 2009 BCCA 232; Rosvold v. Dunlop, 2001 BCCA 1 at para. 18.

[112]    
The principles that apply in assessing loss of future earning capacity
were summarized by Low J.A. in Reilly v. Lynn, 2003 BCCA 49, at para. 101:

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

[113]    
There are two possible approaches to assessing loss of future earning
capacity: the "earnings approach" discussed in Steenblok v. Funk (1990),
46 B.C.L.R. (2d) 133 (C.A.) [Steenblok] and applied in Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) [Milina]; and the
"capital asset approach" outlined in Brown and Pallos.
Both approaches are acceptable. Reliance on the capital asset approach will be
more useful where, as in this case, the loss in question is not easily
measureable: Perren v. Lalari, 2010 BCCA 140 [Perren].

[114]     The
earnings approach involves a form of math-oriented methodology such as: (i)
postulating a minimum annual income loss for the plaintiff’s remaining years of
work, multiplying the annual projected loss by the number of remaining years
and calculating a present value; or (ii) awarding the plaintiff’s entire annual
income for a year or two: Gilbert v. Bottle, 2011 BCSC 1389 [Gilbert]
at para. 233; Milina at para. 245-249.

[115]     The
capital asset approach involves considering factors such as: i) whether the
plaintiff has been rendered less capable overall of earning income from all
types of employment; ii) is less marketable or attractive as a potential
employee; iii) has lost the ability to take advantage of all job opportunities
that might otherwise have been open; and iv) is less valuable to herself as a
person capable of earning income in a competitive labour market: Brown
at para. 8; Gilbert at para. 233; Pallos at para. 24-26.

[116]     Insofar as
possible, the plaintiff should be put in the position he or she would have been
in but for the injuries caused by the defendant’s negligence. The essential
task of the court is to compare the plaintiff’s working life if the accident
had not happened with the plaintiff’s likely future working life after the
accident: Gregory v. Insurance Corp. of British Columbia, 2011 BCCA 144
at para. 32.

[117]    
It is incumbent upon the plaintiff to demonstrate a real and substantial
possibility of a future loss of earning capacity: Perren at paras. 30-32.
If the plaintiff discharges this burden and proves a real and substantial
possibility that his or her lost capacity will result in pecuniary loss, the
plaintiff may prove quantification of that loss. The award is based on a
projection of the plaintiff’s actual future income prospects at the time of the
accident. As noted by McLachlin C.J.C. in M.B. at para. 50:

These damages are not, then, based on a fixed value that has
been assigned to an abstract capacity to earn. Rather, the value of a
particular plaintiff’s capacity to earn is equivalent to the value of the
earnings that she or he would have received over time, had the tort not been
committed.

[118]    
Contrary to the submissions of the defendant, even if a plaintiff
continues working at the same job for relatively the same rate of pay, he or
she may still have a diminution of earning capacity and career options.

[119]    
For example, in Pallos, Finch J.A. discusses how trial judges can
consider the factors outlined in Brown to determine whether the
plaintiff has suffered a loss of a capital asset. The plaintiff in Pallos continued
to be employed at his prior workplace, and actually earned more per year than
he did prior to the accident, although he had some limitations in what he could
perform (at para. 38). Although there was no direct medical evidence
showing that the plaintiff would have a diminished capacity to earn in that
field, Finch J.A. noted the following at para. 41:

On the other hand, there is uncontradicted medical evidence
of partial permanent physical disability which could have an effect on his
capacity to work, and on his employability. I would conclude that his earning
capacity has been reduced, even though he presently earns more than he did
before he was injured.

[120]    
Finch J.A. concluded that despite the fact that the plaintiff continued
to be employed by his pre-accident employer, and could continue to be so
employed indefinitely, an award of $40,000 for loss of future earning capacity
was appropriate in the circumstances.

[121]     Further,
in Fiust v. Centis, 2005 BCSC 1067 [Fiust] , Madam Justice
Fisher found that although the plaintiff had continued to receive wage
increases post-accident, his on-going injuries had still limited his ability to
advance his career and his future work choices would be limited, resulting in a
loss of a capital asset. He was awarded $30,000 (at paras. 32-35). Also,
in Letourneau v. Min, 2003 BCCA 79 [Letourneau], the plaintiff
was awarded $72,000 in similar circumstances.

Conclusion

[122]     Mr. Singh
submits that as a result of the persistent back pain he continues to experience
and the resulting functional limitations as a chef, he will continue to require
assistance to perform his duties as a chef in the future. Mr. Singh relies
on the opinion of Dr. Hershler that he will probably remain symptomatic
for the foreseeable future and this will impact on his ability to work.

[123]     The
defendant submits that the Court should not allow an award for loss of future
earning capacity, as Mr. Singh has not shown a real and substantial
possibility of a loss of earning capacity attributable to the accident. The
defendant submits Mr. Singh was able to return to his job at the
restaurant following the accident and continues to work full-time in his chosen
field.

[124]     Mr. Singh
urges me to calculate his loss under the earnings approach using the actuarial
multipliers prepared by Mr. Lakhani. However, I find in the circumstances
of the present case that the capital asset approach is appropriate. Mr. Singh
is self-employed, and the nature of his business does not promote a consistent
or reliable yearly salary. This is the very type of case that the capital asset
approach contemplates, as it allows the Court to consider whether Mr. Singh
has been rendered less capable or marketable overall due to a loss of his
income earning capabilities, rather than rely upon a strict mathematical
calculation.

[125]     The
capital asset approach does not, however, sanction an assessment at large
without the need to explain the factual basis of the award. It is necessary for
the Court to consider the four questions in Brown and make factual
findings as to the nature and extent of Mr. Singh’s loss of capacity and
how that loss will probably impact his future ability to earn income: Morgan
v. Galbraith, 2013 BCCA 305 at para. 56.

[126]     I find Mr. Singh
has been rendered less capable overall from earning income from all types of
employment, particularly employment that entails physically demanding work.
While Mr. Singh may be able to continue to work in the restaurant industry,
his ability to perform the physical demands of a full-time chef is reduced. As
a result, Mr. Singh has lost the ability to take advantage of all job
opportunities that might otherwise have been available to him had he not been
injured, is less marketable or attractive as an employee to all potential
employers and is less valuable to himself as a person capable of earning income
in a competitive labour market.

[127]     Additionally,
I find that the fact that the Mezbaan actually increased in profitability
during 2013 does not deny Mr. Singh a remedy under this head of damages,
as the court in Pallos, Fuist and Letourneau have awarded damages
to plaintiffs who similarly remained employed in their field or received pay
increases following their injury.

[128]     In these
circumstances, taking into account the negative and positive contingencies of
life, I assess Mr. Singh’s future loss of earning capacity at $150,000.

Costs of Future Care

Law

[129]     Mr. Singh
is entitled to compensation for the cost of future care based on what is
reasonably necessary to restore him to his pre-accident condition in so far as
that is possible. When full restoration cannot be achieved, the court must
strive to assure full compensation through the provision of adequate future
care. The award is to be based on what is reasonably necessary on the medical
evidence to preserve and promote the plaintiff’s mental and physical health: Milina;
Williams v. Low, 2000 BCSC 345; Spehar v. Beazley, 2002 BCSC
1104; Gignac v. Rozylo, 2012 BCCA 351 at paras. 29-30.

[130]     The test
for determining the appropriate award under the heading of cost of future care
is an objective one based on medical evidence. For an award of future care
there must be a medical justification for the claim, and the claim must be
reasonable: Milina at para. 84.

[131]     Future
care costs are “justified” if they are both medically necessary and likely to
be incurred by the plaintiff. The award of damages is speculative, and thus requires
a prediction as to what will happen in future. If a plaintiff has not used a
particular item or service in the past, it may be inappropriate to include the cost
of that service in a future care award. However, if the evidence shows that
previously rejected services will not be rejected by the plaintiff in the
future, he or she can recover for such services: Izony v. Weidlich, 2006
BCSC 1315 at para. 74; O’Connell v. Yung, 2012 BCCA 57 at paras. 55,
60, and 68-70.

[132]     The
extent, if any, to which a future care costs award should be adjusted for
contingencies depends on the specific care needs of the plaintiff. In some
cases, negative contingencies are offset by positive contingencies and,
therefore, a contingency adjustment is not required. In other cases, however,
the award is reduced based on the prospect of improvement in the plaintiff’s
condition or increased based on the prospect that additional care will be
required. Each case falls to be determined on its particular facts: Gilbert at
para. 253.

[133]     An
assessment of damages for cost of future care is not a precise accounting
exercise: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para. 21.

Conclusion

[134]     Mr. Singh
submits that an award of $12,000 ought to be granted for this head of damages. He
submits that the cost of future care consists of $450 for Tylenol and/or other
prescription medication, which would include the topical cream recommended by Dr. Hershler.
Mr. Singh relies on the cost of future care multipliers provided in Mr. Lakhani’s
report.

[135]     The
defendant submits that there is no evidence to suggest Mr. Singh will
incur any future care costs. In particular, he has not purchased any
prescription medication nor has he gone for physiotherapy since 2012. There is
no evidence to indicate that Mr. Singh will require these items in the
future.

[136]     I find
that Mr. Singh will experience occasional, non-debilitating low-back pain
in the future due to the physically demanding nature of his work. I am
satisfied that Mr. Singh will experience a relatively small pecuniary loss
relating to future physiotherapy and/or rehabilitation treatments and pain
medication. However, I find Mr. Singh’s submission as to the quantum of
future care costs to be excessive. Accordingly, I award $1,500 for the cost of
future care.

Special Damages

Law

[137]     It is well
established that an injured person is entitled to recover the reasonable
out-of-pocket expenses he or she incurred as a result of an accident. This is
grounded in the fundamental governing principle that an injured person is to be
restored to the position he or she would have been in had the accident not
occurred: X. v. Y., 2011 BCSC 944 at para. 281; Milina at
78.

Conclusion

[138]     Mr. Singh
submits that an award of $1,600 should be made based on the cost for
physiotherapy and pain medications.

[139]     The defendant
submits that an award of $800 for special damages for expenses incurred before
January 14, 2011 is appropriate.

[140]     I find
that Mr. Singh is entitled to reimbursement for his special damages in the
amount of $1,600.

Summary

[141]     In
summary, I award Mr. Singh damages as follows:

·      
Non-pecuniary Damages – $75,000;

·      
Past Wage Loss – $45,000;

·      
Loss of Future Earning Capacity – $150,000;

·      
Cost of Future Care – $1,500;

·      
Special Damages – $1,600.

Total Damages Award = $273,100

Costs

[142]     If the
parties are unable to agree on costs, they may speak to the issue.

“The
Honourable Madam Justice Devlin”