IN THE SUPREME COURT OF BRITISH COLUMBIA

Date:  20150609

Docket:  M126676

Registry:
Vancouver

Between:

Ramezan
Ali Salehi Hajikolai

Plaintiff

And

Daniel
Lewis and Chanel Ann Lewis

Defendants

Before:
The Honourable Mr. Justice Fitch

Reasons for Judgment

A.       Introduction

[1]
This action arises out of a motor vehicle accident that occurred
February 8, 2011 (the “2011 accident”).  The plaintiff, Ramezan Ali
Salehi Hajikolai, was rear-ended by a vehicle driven by the defendant Daniel
Lewis with the permission of the vehicle’s owner, the defendant Chanel Ann
Lewis.

[2]
The plaintiff was 51 years of age at the time of the accident and 55
years of age at the time of the trial.  He was born in Iran.  He immigrated to
Canada in 1989 with his wife and two young sons, Mazdak and Siamak.  The couple
celebrated the birth of their third child, a daughter named Nazak, in 1994.

[3]
The defendants have not formally admitted liability for the accident.
The plaintiff seeks a judicial determination that the defendants are wholly
liable for the accident.

[4]
The plaintiff also seeks damages under the following heads:  non-pecuniary
damages; past wage loss; future loss of earning capacity; past loss of
housekeeping capacity; cost of future care; and special damages.

[5]
The plaintiff called nine witnesses at trial:  Dr. Thomas Jacobs
(the plaintiff’s general practitioner); Dr. Ravesh Sahjpaul (a
neurosurgeon); Derek Nordin (an expert in vocational rehabilitation); Curtis
Peever (an economist); Haley Tencha (an occupational therapist); Syamak Jahan-Bakhsh
(packaging coordinator with Uprising Breads, for whom the plaintiff worked for
a time prior to the accident) Mahrokh Ghadimi (the plaintiff’s wife); Siamak
Salehi (the plaintiff’s son); and Nazak Salehi (the plaintiff’s daughter).

[6]
The defendants called three witnesses:  Dr. Gabriel Hirsch (a
physiatrist); Daniel Lewis; and Chantelle Ryerson (graduate program assistant
and advisor to the Departments of Sociology and Anthropology at Simon Fraser
University (SFU)).

[7]
By agreement, two further expert reports were filed at trial:  an
Ergonomic Assessment Report prepared in relation to the plaintiff in April 2009
by Paul Pakulak, an occupational therapist; and a pharmacological report dated
February 15, 2015 and prepared by Dr. Thomas Perry, a medical doctor with
a sub-specialty in clinical pharmacology.  Neither Mr. Pakulak nor Dr. Perry
was cross-examined on the content of their reports.

[8]
Among the more contentious issues that arise for determination in this
case are:

·
The extent to which the plaintiff’s capacity to compete for work,
particularly work involving manual labour that demands something more than
sedentary or light level strength and activity levels, and perform household
chores, has been compromised by the 2011 accident, as distinct from the effects
of a 2007 motor vehicle accident the plaintiff was involved in (the “2007
accident”);

·
The plaintiff’s residual earning capacity, his entitlement to an
award for past and future loss of income earning capacity and, if entitlement
is established, how the loss should be valued;

·
Whether the plaintiff’s soft tissue neck injuries suffered in the
2007 accident would have eventually resolved had the subsequent 2011 accident
not occurred (as testified to by Dr. Sahjpaul);

·
Whether the plaintiff’s neck pain complaints and associated
numbness/tingling in his arms (attributable to cervical degeneration) were
aggravated or made more symptomatic by the 2011 accident (as testified to by Dr. Sahjpaul),
or whether these complaints reflect the natural progression of a cervical
degenerative process that was uninfluenced by the soft tissue injuries the
plaintiff sustained in the 2011 accident (as testified to by Dr. Hirsch);

·
Whether the plaintiff’s L4-5 disc herniation is traumatic due to
the 2011 accident, or pre-existing and rendered symptomatic by that accident
(as testified to by Dr. Sahjpaul) or, on the other hand, either not
causally related to the motor vehicle accident, or causally related to the
accident only to the extent that the natural progression of the plaintiff’s
pre-existing lumbar (and cervical) disc degeneration was accelerated by several
years as a result of the accident (as testified to by Dr. Hirsch);

·
Whether, in the alternative, the plaintiff’s L4-5 disc herniation
is not attributable to the 2011 accident, but to a fall down some stairs the
plaintiff experienced in June 2012; and

·
Whether the fall in June 2012 was caused by dizziness associated
with an increase in the dosage of Gabapentin (a pain relief medication the
plaintiff was taking to assist him with the symptoms he was experiencing after
the 2011 accident) prescribed for the plaintiff a short time before the fall
occurred.

B.       Chronology of
Events Leading up to the 2011 Accident

(a)      The
Plaintiff’s Life in Iran

[9]
The plaintiff’s undeveloped work history is explained in large measure by
his unusual life experiences.

[10]
He was a student participant in the Iranian revolution of 1978/79.  His
involvement in the youth movement resulted in him being “kicked out”
of school before attaining his grade 12 equivalent.

[11]
After the revolution, he tried to go back to school but was told by an
official of the Iranian Education Department that he did not deserve an
education.  The plaintiff was then about 19 years of age.  He was determined to
obtain an education.  In the interim, the plaintiff worked on his family’s
farm, and as a welder.

[12]
He was married in 1981.  Mazdak was born in 1983.  Siamak was born in
1986.

[13]
As the promise of the Iranian revolution faded, the plaintiff and his
wife became activists for enhanced democratic rights and gender equality.  In
1986, the plaintiff became a person of interest to the Iranian authorities.  He
narrowly escaped being captured, but the authorities took his wife and infant
son, Siamak, into custody.  Mazdak was permitted to stay with the plaintiff’s
in-laws.  The plaintiff became a fugitive.

[14]
The plaintiff’s wife and infant son were eventually permitted to visit
her parents.  She used the opportunity to flee Iran with her two sons and relocated
to Istanbul, Turkey.

[15]
The plaintiff managed to obtain documents to get out of Iran in 1989 and
joined his wife and two sons in Turkey.  They were able to obtain refugee
status and were approved for immigration to Canada.

(b)      The
Plaintiff’s Early Years in Canada:  1989-1999

[16]
The plaintiff, his wife and two sons arrived in Winnipeg in December
1989.  Both enrolled in ESL courses.  The plaintiff’s wife attended the
University of Manitoba for two years in a general science program before being
admitted to the nursing program in 1994.

[17]
The plaintiff completed his high school education in Manitoba.

[18]
Nazak was born in Winnipeg in 1994.

[19]
As it was not feasible for the plaintiff and his wife to attend
university at the same time, the plaintiff worked in a variety of different
jobs in Manitoba while his wife (who was more advanced in the English language)
completed her nursing degree.  The plaintiff worked in a restaurant and did
cleaning at night.  On weekends, he delivered pizza.  Later, the plaintiff
worked 12-hour shifts (from 5:00 a.m. to 5:00 p.m.) driving a taxi.  He
looked after the children in the daytime.

(c)      Relocation,
Schooling and Work in Vancouver:  1999-2007

[20]
The plaintiff’s wife graduated with a degree in nursing in 1999.  After
she secured work as a nurse in the Vancouver area, the family moved to the
Lower Mainland.  They lived in Port Moody between 1999 and 2001, before
purchasing and moving into their current home in Port Coquitlam.

[21]
After relocating to Vancouver, the plaintiff continued to take ESL
courses as well as courses in computers, environmental studies, sociology and
anthropology at Douglas College.

[22]
In early 2000, the plaintiff obtained, through some Iranian friends, a
job working for an Iranian newspaper.  He worked 30-32 hours per week at $12 an
hour.  Throughout this period, he continued to attend Douglas College.  In
2004, the newspaper business was taken over by the proprietor’s children and
the plaintiff was let go.

[23]
In 2004, the plaintiff began taking courses at SFU.

[24]
Through contacts in the Iranian community, the plaintiff also managed to
obtain part-time work in 2004 at Uprising Breads, a bakery in Vancouver.  The
plaintiff initially worked nights (7:30 p.m. to 7:30 a.m.) packaging bread.
The job involved pushing large, heavy metal racks of baked bread to slicing
machines, packaging the sliced bread, putting the loaves in bingos and loading
the bingos onto trucks for delivery in the morning.  The plaintiff described
the tasks associated with this work as “heavy duty”.

[25]
Towards the end of 2007 or in early 2008, the plaintiff began working
day shifts in the bakery, three days a week for eight hours per day, as a baker’s
helper.  He described this position as a heavy job involving making dough,
putting it on heavy racks and pushing the racks to the ovens.  He said he was
occasionally required to lift over 50 pounds.

[26]
The physical demands of both baking and bread packaging work were
confirmed by Mr. Jahan-Bakhsh, who is the co-ordinator of bread packaging
for Uprising Breads.  He worked with the plaintiff on the bread packaging night
shift which he said was from 8:00 p.m. to 4:00 a.m.

[27]
Mr. Jahan-Bakhsh testified that bakers lift metal pans weighing
between 6 and 7.5 kgs when loaded with loaves of bread.  He said bakers
hit the pans to free the loaves of bread from the pan and that the job of a
baker involves frequent twisting, turning, leaning over and carrying away from
the body as the pans of baked bread are loaded onto racks.

[28]
The racks, which are on wheels, are moved by the packaging shift and,
when fully loaded, can weigh about 250 kgs.  When the plaintiff worked a
packaging shift, he would package between 1,500 and 2,000 loaves of bread, sort
them into bingos and load the bingos onto trucks for delivery.  The plaintiff
would push stacks of bingos loaded with bread to the delivery trucks.  The
total weight of each stack would be between 7.5 and 12 kgs.  When the trucks
were being filled with orders for delivery in the morning, the packaging shift
workers, who would either be on the loading bay or in the trucks, switched
places every 15 minutes because loading was heavy work.  Mr. Jahan-Bakhsh
said packaging work also involved repetitive lifting, bending and twisting.  He
testified that every Thursday and Friday, the packaging shift used hand carts
to load 22 kg bags of granola boxes destined for retail outlets onto the
trucks.

[29]
Mr. Jahan-Bakhsh was very satisfied with the plaintiff’s work
performance.  He described the plaintiff’s mood as being good while at work.

[30]
The plaintiff graduated from SFU with a Bachelor of Arts degree in the
late spring of 2007.

(d)      The
Plaintiff’s First Motor Vehicle Accident:  February 14, 2007

[31]
On February 14, 2007 a vehicle the plaintiff was driving was sandwiched
when the plaintiff rear-ended a car that stopped in front of him and was, in
turn, rear-ended.

[32]
In cross-examination, the plaintiff testified that the 2007 accident was
the more significant of the two.  I understand the plaintiff’s evidence on this
point to relate to the mechanics of the accident (two impacts as opposed to
one), not to the comparative severity of the injuries he suffered in the two
accidents.

[33]
The plaintiff suffered soft tissue injuries to his low back and neck in
the 2007 accident.  It is common ground that the plaintiff’s low back injuries
quickly resolved; the neck injuries did not.  After this accident, the
plaintiff could not look up or down.  The plaintiff’s wife testified that the
2007 accident impaired the plaintiff’s ability to do things that caused him to
extend (lift and lower) his neck.

[34]
In March and April 2007, the plaintiff reported to Dr. Jacobs that
he was experiencing numbness and tingling radiating into his right middle
finger.  The plaintiff testified he has no recollection of making these
reports.  Dr. Jacobs attributed these symptoms to the plaintiff’s neck
injuries sustained in the 2007 accident.

[35]
On July 25, 2007, an X-ray of the plaintiff’s cervical spine revealed he
was suffering from moderate to severe cervical spondylosis (degenerative
changes that can include disc bulges, bone spurs and foraminal stenosis, or
loss of disc height resulting in a narrowing of the nerve tunnel).  Dr. Sahjpaul
testified that moderate foraminal stenosis is the point at which one begins to
see nerve compression.

[36]
The plaintiff advised Dr. Jacobs in 2007 that he was having
difficulty studying due to his ongoing symptoms.  In December 2007, the
plaintiff sought to have a disappointing mark he obtained on an undergraduate
course withdrawn on grounds that ongoing neck pain was impairing his ability to
study.

[37]
In April 2009, an Ergonomic Assessment Report was prepared by Paul
Pakulak, an occupational therapist.  The purpose of the report was to assess
the plaintiff’s current and future need for assistive/ergonomic devices to
compensate for his physical deficiencies arising from the 2007 accident.  The
plaintiff advised Mr. Pakulak that his neck symptoms had improved but that
he was still experiencing daily intermittent neck pain with bouts of sharp,
pinching pain.  Mr. Pakulak made specific recommendations for ergonomic
improvements to the plaintiff’s home office.  The plaintiff testified he did
not purchase some of the items recommended because he had no money to buy
them.  With respect to other recommendations, the plaintiff made makeshift,
no-cost adjustments to his workstation.

[38]
In June and August 2009, the plaintiff complained to Dr. Jacobs of
pain on the left side of his neck radiating into his left hand.  He reported
experiencing tingling in the first three fingers of his left hand.  The
plaintiff testified he has no current recollection of experiencing these
symptoms in 2009.

[39]
In October 2009, the plaintiff told Dr. Jacobs he was having
problems doing household chores involving over-the-head activity or heavy
lifting.  The plaintiff testified he was limited in terms of doing housework
after the 2007 accident because he could not look up or down.

[40]
The plaintiff reported to Dr. Jacobs having problems doing heavy
work at the bakery.  He plaintiff testified that whatever neck pain he
experienced following the 2007 accident, it never prevented him from doing his
job at the bakery.

[41]
In a medical/legal report dated November 6, 2009 Dr. Jacobs offered
this prognosis with respect to the neck injuries the plaintiff sustained in the
2007 accident:

Since these soft tissue injury
symptoms from his neck have been persistent for the past two years and have not
really changed much, these are most likely permanent.  He will have to modify
his ergonomic workstations such that he does not spend a lot of time in either
flexion or extension with reading or other activities.  Hopefully, these
symptoms can be somewhat controlled with home exercises and Tylenol for
intermittent headaches at night which prevent him from sleeping.

[42]
Dr. Jacobs agreed that the neck injuries the plaintiff sustained in
the 2007 accident affected his ability to do manual labour.

[43]
By the time of the accident that is the subject of this litigation, the
plaintiff agreed that, in terms of his neck symptoms, he felt 60% to 70%
recovered.

(e)      The Plaintiff’s Work
History:  January 2008-February 8, 2011

[44]
The plaintiff’s employment with Uprising Breads came to an end in May
2008.  He earned $6,641 working for Uprising Breads in 2008.  The plaintiff
reported earning $138.46 from Uprising Breads in 2009.

[45]
In June 2008, the plaintiff was assisted by friends in securing a job in
a group home for developmentally delayed adolescents.  He was paid $15.25 per
hour.  The adolescents with whom the plaintiff worked were low functioning and
behaviourally challenged.  Some were aggressive and, on occasion, had to be
restrained until they calmed down.  The plaintiff testified that his ongoing
neck complaints did not affect his ability to work in the group home.  The
plaintiff earned $8,441.07 working for the group home in 2008.  His total
income in 2008 from the bakery and group home was $15,082.

[46]
In January 2009, the plaintiff started working towards a Master’s degree
in Latin American studies at SFU.  He was 50 years of age.  The plaintiff
testified that he was driven to achieve the education denied to him in Iran.
His Master’s thesis is entitled “Forced Government Change:  A
Comparative Study of the Historical and Social Forces Involved in the 1953
Iranian and 2002 Venezuelan Coups D’état“.
When asked what his plans were following completion of his Master’s degree, the
plaintiff testified he wanted to find a job in his area of study but,
realistically, his hopes were not high this would happen.  He said he had only
done menial jobs in the past.

[47]
The plaintiff’s wife similarly testified that while his educational
pursuits were not a direct route to finding a job, she supported him in
pursuing his educational goals.  She said he had worked for a newspaper, bakery
and group home and that, if necessary, he could still go back to these jobs
after completing his Master’s degree.

[48]
The plaintiff worked in the group home until May 2009.  He left because
it was too difficult having a job while studying in a Master’s program.  The
plaintiff earned $1,708.31 working in the group home in 2009.

[49]
By the time of the 2011 accident, the plaintiff had completed the
coursework towards his Master’s degree and was in the process of revising his
thesis.

[50]
The plaintiff testified that he and his wife enjoyed an active social
life before the 2011 accident.  They were active in the Iranian community and
took ballroom dancing lessons.  The plaintiff was also involved in Nazak’s
recreational endeavours and played sports, particularly basketball, with her.

[51]
The plaintiff testified that before the 2011 accident, his health was
good except that he continued to have difficulty moving his neck up and down.
His sleep was good.  He continued to get headaches which he treated with
Tylenol.

(f)       The
Motor Vehicle Accident of February 8, 2011

[52]
On February 8, 2011 the plaintiff was driving a Mitsubishi Outlander, a
sports utility vehicle.  He picked up his wife from Royal Columbian Hospital in
New Westminster.  He was stopped at a red light.  When the light turned green
the plaintiff started moving forward.  He was travelling about 5 km/h when he
was rear-ended.  He was shocked by the impact.

[53]
The plaintiff’s wife was more descriptive of the accident itself.  She
testified that the impact caused a huge sound, and that the force of it suddenly
pushed them back and forth.  She braced herself against the dashboard during
the forward thrust.

[54]
The plaintiff said the driver of the other vehicle (Daniel Lewis) got
out, apologized and asked if they were okay.  The plaintiff’s wife gave similar
evidence.  The plaintiff testified that the other driver explained he was
daydreaming.

[55]
Mr. Lewis testified he was driving a 1992 Toyota Paseo.  He said he
was probably not paying as much attention as he should have been.  When he saw
the plaintiff’s vehicle he applied the brakes, but too late to avoid a collision.
He described the force of the impact as mild to light.  He said that his body
moved forward on impact, but did not hit the interior of the vehicle.  He
testified that his front bumper went under the rear bumper of the plaintiff’s
vehicle, and that the front hood of his vehicle crumpled in the collision.  Mr. Lewis’s
vehicle was not repaired after the accident.  He sold it for between $200 and
$300.

[56]
Photographs of the plaintiff’s vehicle taken following the accident
depict scuff marks along the rear left bumper but no significant dents or other
damage.  Photographs of the vehicle being driven by the defendant taken
following the accident depict significant damage to the front bumper and hood
of the Paseo.  The hood of the Paseo is folded back on itself from the front
bumper to the windshield.  The damage to the two vehicles is likely explained
by the fact that the front end of the Paseo went under the rear bumper of the
Outlander driven by the plaintiff.

[57]
After exchanging information with Mr. Lewis at the scene, the
plaintiff and his wife went home.  Both were experiencing headaches, neck and
back pain.

[58]
The plaintiff testified that one hour after the accident he had a
headache and was feeling pain in his neck.  In addition, he was experiencing
lower back pain, which was new for him.

[59]
When Nazak got home later that evening she described her parents as
looking broken, drained, exhausted and in physical pain.  As the plaintiff’s
symptoms were progressively getting worse, he attended a walk-in clinic with Nazak
that evening but it was closed.  The plaintiff decided to wait to see Dr. Jacobs
the next day.

(g)      The Course of the Plaintiff’s Symptoms:  From
the 2011 Accident to June 17, 2012

[60]
The next day, the plaintiff could not move his neck left or right and
was experiencing pain in his shoulders and low back.  He was prescribed an
anti-inflammatory and painkiller by Dr. Jacobs.  He testified that the
first few weeks after the accident were very hard.  He experienced burning
headaches all the time for which he took Tylenol 3.  His neck pain was constant
and he experienced shoulder pain from the neck to the shoulder joints.  He
described his low back pain as pounding and burning and testified he could not
move or bend.  He was unable to sleep more than three hours at a time and could
not think clearly or work on his thesis.  Nazak helped them around the house.
Friends took Nazak to her basketball games.  Siamak, who had been teaching in
Korea, returned home a few weeks after the accident and helped his parents shop
and cook.

[61]
At the end of February 2011, the plaintiff requested from his university
department an extension of time to complete his thesis.  He did not want to
take a leave from the program as he wanted to continue working towards his
Master’s degree.  He knew that if he took a leave, he would not be able to use
the graduate student facilities or continue working with his thesis
supervisor.  He testified he was told he could obtain an extension, but had to
pay tuition for the summer and fall of 2011.  He paid SFU $1,068.55 for tuition
in the summer and $1,498.23 for tuition in the fall of 2011.

[62]
Chantelle Ryerson testified that graduate students at SFU can apply for
leave in extenuating circumstances, including for reasons relating to an
injury, and that in this type of situation tuition is usually waived.  Having
said this, Ms. Ryerson confirmed that a student on leave who is not paying
tuition is expected to stop working on their thesis.  They are prohibited from
accessing SFU facilities, using its libraries for research, and meeting with
their faculty advisor.  Students who apply for leave have to submit a written
request to the university confirming that they will not do work on their thesis
or make use of SFU facilities while on leave.  She confirmed that a graduate
student who continues to work on their thesis despite intermittent limitations
would have to remain enrolled.

[63]
The plaintiff started taking physiotherapy treatments in May 2011.  The
treatments ended in late July 2011.  He did not find the treatments
particularly helpful.  He continued to suffer from pain in his neck, shoulders
and low back.  He had difficulty walking normally due to his low back pain.
Around this time, the plaintiff resumed working on his Master’s thesis but
found it difficult to sit for extended periods.

[64]
By mid-July 2011 the plaintiff’s low back pain was radiating into his
hips, buttocks and down the back of his legs to his knees.  He reported these
symptoms to Dr. Jacobs on more than one occasion and as early as February
24, 2011.

[65]
In the spring of 2011 the plaintiff also started getting pain, numbness
and electric shock sensations in his hands that worsened by working on the
computer.  He reported these symptoms to Dr. Jacobs repeatedly and as
early as February 24, 2011.  Dr. Jacobs testified that while there can be
multiple reasons for a person experiencing numbness in their fingers, he
presumed that the plaintiff’s symptoms were radiating from his neck and were
attributable to compression or irritation of the nerve.

[66]
Despite the gradual worsening of his symptoms, the plaintiff forced
himself to continue studying.  He successfully defended his Master’s thesis in
December 2011.  Obtaining a Master’s degree was the realization of one of his
life goals.

[67]
The plaintiff’s symptoms continued to deteriorate in the first half of
2012.  He described his low back pain as being constant, and was experiencing
pain and electric shocks in his hips and buttocks.

[68]
The plaintiff described his mood as not being good.  He was unable to
reach above eye level and could not bend.  He was relying on Siamak and Nazak
to clean the house, do yard work and shop for groceries.

[69]
Dr. Jacobs testified that a CT scan of the plaintiff’s lumbar spine
was undertaken in March 2012.  It showed multi-level degenerative disc disease
with moderately severe disease at L5-S1 and neuroforaminal stenosis of moderate
severity.  The plaintiff was also noted to have moderately severe spinal
stenosis in his cervical spine at C5-6 and C6-7.

(h)      The
Plaintiff’s Post-Graduation Efforts to Find Employment

[70]
Following graduation, the plaintiff applied for teaching positions in
colleges located in British Columbia and Alberta.  He also applied to NGOs to
do humanitarian work.  Siamak assisted the plaintiff with many of his
employment applications.  The plaintiff was unable to find work related to his
field of study.  The plaintiff expanded his job search but said he was told by
doctors he could not do physically demanding work.

[71]
In terms of his job search methodology, the plaintiff described looking
at postings online that involved light work duties and submitting resumes with
a covering letter describing the kind of job he was looking for, or capable of,
and asking a prospective employer if they had something to offer in that area.
He testified that since graduating he has sent in over 100 job applications,
including for a position as a bank teller.  He has not applied to work in the
group home because he says the job application they use has two questions about
an applicant’s physical ability.  The plaintiff testified that he would have to
be truthful about his current limitations.  Clearly, the plaintiff has
concluded his limitations would disqualify him from any type of work in the
group home setting.  The plaintiff testified he has not applied for
administrative positions because he does not feel qualified for them.  Despite
sending in 100 job applications, the plaintiff has not been offered a single
interview.

[72]
The plaintiff testified he currently looks online for employment
opportunities once or twice a day.  He described his search for job
opportunities as random.

(i)       The
Plaintiff’s Fall:  June 17, 2012

[73]
The plaintiff testified that by June 2012, he was experiencing constant
low back pain.  His condition was deteriorating.  Siamak testified that by the
end of May 2012, his father seemed to be in more pain.  He was doing
physiotherapy exercises at home and constantly rubbing his arms and legs.
Nazak similarly testified that in 2012 she observed her father exhibiting
behaviours she interpreted as being pain-related.  She saw him grab his legs
and take a short breath.  She also said he had tears in his eyes.

[74]
The plaintiff saw Dr. Jacobs on June 14, 2012 and was told to
increase his dosage of Gabapentin from 800 mg per day to 2,100 mg per day and
continue increasing the dosage by 300 mg every five days until reaching a
maximum daily dosage of 3,600 mg.  One side effect of Gabapentin is dizziness.

[75]
On June 17, 2012, the plaintiff had a dizzy spell at home and fell down
a flight of stairs.  The plaintiff testified he landed on his left shoulder and
left buttock.  He was examined at Eagle Ridge Hospital in Port Moody after the
fall but was not admitted.  He said his condition worsened for a few weeks
before going back to the way he was before the fall.  Siamak testified that one
or two weeks after the fall, the plaintiff was back to where he was in May
2012.  Siamak said the fall did not seem to make the plaintiff’s condition any
worse.

[76]
The defendants tendered a report authored by Dr. Thomas Perry, a
medical doctor with a specialty in clinical pharmacology, addressing whether a
change in the plaintiff’s Gabapentin dosage from 1,800 to 2,100 milligrams per
day was likely the cause of the plaintiff’s dizziness prior to the fall.  The
plaintiff did not seek to cross-examine Dr. Perry on the content of his
report.  For a variety of cogent reasons, Dr. Perry concluded it is very
unlikely the increased Gabapentin dosage caused the plaintiff to fall.  I
accept that opinion.

[77]
Dr. Hirsch testified that a CT scan of the plaintiff’s lumbar spine
on March 10, 2012 (pre-fall) showed moderately severe disc space narrowing at
L5-S1 in conjunction with a bone spur formation and a very small
circumferential disc bulge.  It is common ground that an MRI scan of the
plaintiff’s lumbar spine on July 5, 2012 (post-fall) showed a slightly left-sided
disc protrusion or herniation at L4-5.

(j)       The
Plaintiff’s Symptoms:  June 17, 2012 to the Present

[78]
In October 2012, Dr. Jacobs took the plaintiff off Gabapentin and
put him on another pain relief medication called Lyrica.  Lyrica is more
expensive than Gabapentin.

[79]
The plaintiff reported feeling “much better” while on Lyrica.
In 2013, the plaintiff learned his health insurance plan would no longer cover
the additional cost of Lyrica.  As the plaintiff could not afford to pay for
Lyrica, he reported this to Dr. Jacobs who put him back on Gabapentin in July
2013.

[80]
In November 2012, the plaintiff received the first of three lumbar
epidural steroid injections.  While the plaintiff experienced some short-term
improvement after the first injection, the second and third injections only
gave him temporary relief.

[81]
Between March and June or July of 2014, the plaintiff attended what I
understand to be a rehabilitation program at Back in Motion in Burnaby.  He
experienced some reduction in pain through participation in the program.

[82]
While the plaintiff continues to regularly exercise in the pool and do
home-based stretching exercises for his neck, shoulder and low back, he
testified his symptoms have essentially plateaued over the last two years.  He
still experiences flare-ups and has to lie down until the pain subsides.

[83]
In mid-2014, Mr. Jahan-Bakhsh called the plaintiff and offered him
two bread packaging shifts per week.  He told the plaintiff that the baking
shift could offer him one day a week and suggested that the position would
become a permanent one (five days per week) after six months if he worked out.
The plaintiff’s salary would be $14-$15 per hour plus a $1.75 hourly shift
premium for work performed after 10:00 p.m.  The plaintiff declined this
work as he did not consider himself to be physically capable of doing it.

[84]
The plaintiff testified that he continues to search for work online, but
advises prospective employers that he is not able to do physical work.

(k)      The
Plaintiff’s Life Before and After the February 8, 2011 Accident

[85]
The plaintiff testified his sleep is still affected by his symptoms, and
that he continues to experience headaches.  He is restricted in playing with
and picking up his two grandchildren.  He has been unable to find employment he
considers himself to be physically capable of doing.

[86]
The plaintiff’s wife gave a more descriptive account of the changes in
her husband since the accident.  Before the accident, they took ballroom
dancing classes together and were socially active, particularly within the
Iranian community.  They no longer dance together.  She said the accident “aged”
the plaintiff.  He is more easily irritated and not nearly as active, energetic
or joyful.  He no longer follows the news.  He is more withdrawn.  The
plaintiff’s wife described them as becoming isolated after the accident.  As
she put it:  “Who wants to see you when you talk about pain?”

[87]
Siamak testified that when he came home after completing his teaching
contract in Korea it was a “different world”.  His father needed
assistance with household tasks.  His father was constantly grimacing and
rubbing his arms and legs.  Siamak testified that his father is frustrated and
down on himself.  His father played soccer and basketball with the children
when they were growing up.  Now, he goes up the stairs one step at a time,
pausing at each step and using the hand railings.  He said it is as if his
father has prematurely aged since the accident.

[88]
Nazak testified that it is like the plaintiff “lost a bit of
himself” in the accident.  He is more closed-off and less communicative.

C.       Medical Opinions

(a)      Dr. Jacobs

[89]
In his medical/legal report of August 2, 2013 Dr. Jacobs provided
this opinion:

[The plaintiff] was involved in a
motor vehicle accident on February, 2011 sustaining mechanical soft tissue
injuries to his neck and low back.  He had residual neck pain from a previous
motor vehicle accident in 2009 [sic] prior to his latest accident.  He has
tried both formal physiotherapy and home exercises but these have not helped in
his symptomatology.  He has been assessed by neurosurgeons…Both feel that
surgery would not benefit his neck or low back symptoms… He is quite markedly
restricted in what he can do.  He is unable to walk or sit for a prolonged
period of time.  His symptoms have been going on now for two years and most likely
will be permanent.  This will prevent him from seeking employment requiring
manual [labour] or repetitive flexion/extension maneuvers of both his lumbar
and cervical spine.  He will also be limited on his domestic duties that
require the use of his low back.

[90]
In a follow-up medical/legal report dated October 24, 2014 Dr. Jacobs
said:

In summary, diagnosis at this
time remains chronic neck and low back pain with associated degenerative disc
disease and some neuroforaminal and spinal stenosis in the neck and low back,
which has been evaluated by two neurosurgeons who feel that surgery may not be
the best treatment at the present time.  His pain is reasonably well controlled
with Gabapentin… along with Tylenol No. 3 at night to prevent headaches.
With respect to his low back pain, he has tried physiotherapy and an active
rehab program with no benefit…His injuries are most likely mechanical in nature
and he has now developed a chronic pain syndrome.  It is very unlikely that he
will ever be able to work.  Hopefully the second opinions may shed some light
on further treatment options.

[91]
Dr. Jacobs confirmed that he switched the plaintiff from Gabapentin
to Lyrica because some patients benefit more from Lyrica.  If cost had not been
an issue, Dr. Jacobs would probably have left the plaintiff on Lyrica to
see if it gave him better pain relief.

[92]
Dr. Jacobs agreed in cross-examination that given the persistent
neck pain the plaintiff experienced after the 2007 accident, it was hard to
imagine him being able to get back to work full time following that accident in
situations where he had to sit for prolonged periods while reading or using a
computer.  Dr. Jacobs testified that while the 2007 accident disqualified
the plaintiff from some types of work (heavier manual labour involving looking
up and down) the 2011 accident restricted the plaintiff’s employment options by
virtue of now having two sources of pain – his neck and low back.

(b)      Dr. Sahjpaul

[93]
Dr. Sahjpaul assessed the plaintiff on July 7, 2012.  At the time
of the assessment, Dr. Sahjpaul had the following imaging reports:  a
cervical spine X-ray report dated July 25, 2007 reflecting a diagnosis of
moderate to severe cervical spondylosis (degenerative changes); an MRI of the
cervical spine done July 5, 2012 reflecting multi-level cervical spondylosis;
and, an MRI of the lumbar spine reflecting a small L5-S1 disc bulge and a
left-sided L4-5 disc herniation.  Dr. Sahjpaul explained that the
difference between a disc bulge and a disc herniation is a matter of degree.  A
disc bulge is a common occurrence and is frequently detected in asymptomatic
patients.

[94]
Dr. Sahjpaul testified that the L4-5 disc herniation was mildly
compressing the nerve root.  Disc herniations can be caused by the aging
process or a trauma, including a fall.

[95]
Dr. Sahjpaul testified that disc herniations can also show up in
patients who are asymptomatic.  He testified that degenerative disc disease is
a progressive condition, but patients will not necessarily experience symptoms
in proportion to the progression of the disease.

[96]
Dr. Sahjpaul testified the plaintiff did not tell him the tingling
and numbness in his lower extremities only emerged after his fall down the
stairs.  Rather, the plaintiff told him that his pre-existing symptoms were
temporarily worsened by the fall.

[97]
Dr. Sahjpaul thought the plaintiff to be capable of sedentary or
light employment and light household work.

[98]
Dr. Sahjpaul offer the following opinion:

[The plaintiff] was involved in a motor vehicle accident in
2007 which caused neck pain and intermittent arm symptoms, in addition to low
back pain.  The low back pain resolved but he was left with persistent cervical
spine complaints.  The motor vehicle accident on February 8, 2011 aggravated
his neck pain complaints which in my opinion are primarily myofascial and soft
tissue related.  The motor vehicle accident also aggravated his arm symptoms
which in my opinion are secondary to the cervical spondylosis, i.e.
degenerative disc/osteophyte changes seen on the MRI scan.  These changes, in
my opinion, are probably pre-existing but were rendered more symptomatic by the
February 8, 2011 motor vehicle accident.  The February 8, 2011 MVA also caused
low back pain which in my opinion is primarily myofascial, i.e. soft tissue,
but a portion of the back pain is probably related to the L4-5 disc
herniation.  This disc herniation, which is either traumatic due to the
February 8, 2011 MVA or was pre-existing and rendered symptomatic by the
February 8, 2011 MVA, is probably causing his lower extremity symptoms.

Surgery is not recommended at the present time… Surgery may
be indicated in the future if his arm symptoms become more substantial or if
his leg symptoms become more substantial to the point that he would like to
consider surgical intervention.

More likely than not, his neck and back pain complaints will
continue on a permanent basis.  I do not anticipate significant improvement.
His arm and leg symptoms may improve either on a spontaneous basis due to
natural healing of discs and natural recovery of nerve root compression
syndromes, but resolution cannot be predicted.  If he eventually requires
surgery, there is a more predictable chance of improvement but, again, complete
resolution is not guaranteed.

With regards to functional
limitations, it is my opinion that [the plaintiff] probably will not be able to
perform a manual labour-type job or jobs that require repetitive lumbar
flexion/extension or cervical flexion/extension maneuvers.  He will probably be
limited in terms of his domestic responsibilities if they require heavy lifting
or lifting interesting maneuvers.  Similar restrictions apply for recreational
pursuits.

[99]
Dr. Sahjpau testified that while degenerative changes generally
progress over time, he could not say with probability, let alone certainty,
whether the plaintiff’s cervical spondylosis would progress.  Further, he
testified that the impact of degenerative changes on patients is variable and
that there is no necessary correlation between the progression of degenerative
changes noted through imaging tests and the clinical manifestation of symptoms.

(c)      Dr. Hirsch

[100]  Dr. Hirsch
formulated his opinion on the understanding that the motor vehicle accident of
February, 2011 was “relatively minor”.  In addition, Dr. Hirsch
interpreted the clinical records as reflecting “delayed onset” of
upper right extremity sensory symptoms, followed by sensory symptoms in his
left upper extremity and in both legs.  He agreed in cross-examination that if
upper and lower extremity sensory symptoms started within a couple of weeks of
a trauma, this would likely not qualify as a delayed onset of those symptoms.

[101]  He
accepted that the plaintiff’s low back symptoms following the 2007 accident
were short-lived and completely resolved by the 2011 accident.  At the time of
the 2011 accident, the plaintiff had persistent activity limitations pertaining
to his chronic and painful neck condition attributable to the 2007 accident.

[102]  The opinion
of Dr. Hirsch as to the etiology of the plaintiff’s symptoms is:

·
The 2011 accident aggravated the plaintiff’s soft tissue injury
to his neck and recurrent headaches and “probably” caused soft tissue
injuries to his low back;

·
The plaintiff had pre-existing neck pain, as well as
radiographically documented multi-level cervical spondylosis.  These factors
possibly predisposed him to a more significant injury, and possibly contributed
to his protracted clinical course;

·
The plaintiff’s reported symptomatic regression with respect to
his neck and low back complaints are atypical for soft tissue injuries and
probably primarily accounted for by his pre-existing multi-level cervical and
lumbar spondylosis;

·
Imaging studies of the plaintiff’s cervical spine undertaken in
2007 and 2012 show progression of his pre-existing cervical spondylosis.  This
progression reflects the natural, progressive history of the degenerative
process and was not influenced by the injuries the plaintiff sustained in the 2011
accident;

·
The L4-5 disc protrusion (herniation) is “probably not
causally related to the subject motor vehicle accident”.  Dr. Hirsch
testified that no abnormality was detected at the L4-5 levels in the CAT scan
of March 2012, but a disc protrusion (or herniation) was identified in an MRI
conducted July 7, 2012.  The inference the defendants seek to have drawn from
this evidence is that the plaintiff’s fall in June 2012 caused the disc
herniation at L4-5; and

·
Imaging studies of the lumbar spine taken after the 2011 accident
showed multi-level degenerative changes.  These degenerative changes pre-dated
the 2011 accident.  The presence of multi-level lumbar spondylosis possibly
predisposed plaintiff to a more significant injury and may have contributed to
the protracted clinical course.

[103]  Dr. Hirsch
summarized his opinion this way:

On balance of all the evidence, it is my opinion that [the
plaintiff] has mechanical neck pain and mechanical low back pain.  According to
today’s obtained history and review of the forwarded clinical records, [the
plaintiff] experienced worsening neck pain and headaches, as well as the new
onset of low back pain after the February 2011 motor vehicle accident.  The
question arises what the situation would be absent the effects of the injuries
[the plaintiff] sustained to his neck and low back in the motor vehicle
accident in question.

It is my opinion that [the plaintiff] had pre-existing
multilevel cervical and lumbar spondylosis.  On balance of all the evidence, it
is my opinion that [the plaintiff] would have continued to experience neck pain
and recurrent headaches, even if the accident would not have occurred.  In the
context of his multilevel lumbar spondylosis and age, he would have been at
risk of developing low back pain with or without sciatica, even if he had not
been involved in the February 2011 motor vehicle accident.

On balance of all the evidence, I
think it reasonable to conclude that the natural history of [the plaintiff’s]
pre-existing cervical and lumbar spondylosis was accelerated by several years
as a result of these two injuries he sustained to his neck and low back in the
subject motor vehicle accident.  It is impossible to prognosticate how his life
would have ended up if he had not been involved in this motor vehicle accident,
however I think it likely that within several years from the time of the
subject motor vehicle accident he would have experienced similar neck, low back
as well as upper and lower extremity symptoms he describes at present even if
he had not been involved in the February 2011 motor vehicle accident.

[104]  In
cross-examination, Dr. Hirsch agreed that a number of patients who present
with physical abnormalities are asymptomatic.  He agreed you cannot predict the
patient’s symptoms based on imaging tests.  He said that 50% of the population
has degenerative disc disease by age 50.  There is variability in the
progression of the disease.  He acknowledged it is impossible to predict which
patients will develop symptoms from degenerative disc disease.  He said that between
the 2007 X-ray and the 2012 CT scan, the plaintiff’s degenerative disc disease
had progressed.  He also agreed that radiologists read X-rays differently.  For
example, it was reported in February 2012 that the plaintiff showed mild
multilevel degenerative changes from L2 to S1.  Four months later, it was
reported that X-rays revealed moderately advanced degenerative changes at
L5-S1.  Dr. Hirsch testified that the reports were likely identical and
that if the same radiologist looked at them, no significant difference would
have been identified in a four-month period.

[105]  Significantly,
Dr. Hirsch agreed in cross-examination that when he expressed the opinion
in his report that the plaintiff would likely have experienced similar neck,
low back and upper and lower extremity symptoms through the natural progression
of his disease, he was engaging in a high degree of speculation and guesswork.

[106]  In
re-examination, Dr. Hirsch testified that when he used the word “likely”
in his report, it was intended to reflect a probability of an event occurring
that was more than 50%.  Having said this, it was still speculation and “an
educated guess”.  Dr. Hirsch testified that deterioration of the
plaintiff’s condition was not explained by his soft tissue injuries and could
only be explained by the progression of an underlying degenerative process.

[107]  Dr. Hirsch
opined that the plaintiff has the physical ability to work in occupations which
are sedentary or require light physical demands.

[108]  He also
expressed the view that while the plaintiff should be able to perform the
majority of domestic tasks, including reasonable yard-related activities, he
will probably require some assistance doing the more physically strenuous
activities in and around his home.

D.       Functional
Capacity Evaluation and Cost of Future Care Report

[109]  Haley
Tencha, an occupational therapist, assessed the plaintiff on September 25,
2014.  Ms. Tencha’s first report addresses the plaintiff’s functional
capacity and cost of future care.  Her second report provides additional cost
of future care information based on a change in the plaintiff’s prescription
pain medication from Gabapentin to Lyrica.

[110]  Ms. Tencha
concluded that the plaintiff demonstrated the capacity for activity requiring
sedentary to light level strength through full body range but that, given his
limitations, he is best suited for tasks that require at or below a light
strength and activity levels.

[111]  The
plaintiff was found to be capable of performing light housekeeping chores such
as sweeping, mopping, washing dishes and cooking, as long as he paced himself
appropriately.  Moderate to heavy housekeeping chores and tasks that place
strain on his neck, shoulders, upper and lower back would, however, likely
result in increased symptoms.

[112]  Using
Canadian and American occupational classifications, categorizing the plaintiff
as a baker/baker’s helper or labourer in food processing, and based on the
plaintiff’s self-reports as to his job demands as a baker/baker’s helper, Ms. Tencha
concluded that while the plaintiff likely demonstrated the functional strength
capacity to perform a majority of the day-to-day tasks associated with the
position, he would require assistance in maneuvering heavier items, such as
large bags of flour.  As noted earlier, Mr. Jahan-Bakhsh testified that
employees working the baking shift lift 20 to 25 kg bags of flour, and
employees on the packaging shift load onto delivery trucks 22 kg bags of
granola.

[113]  Ms. Tencha
concluded that the plaintiff’s demonstrated decline in function and speed with
tasks requiring prolonged standing and repetitive horizontal reaching and
bending suggest that he would likely have difficulty managing these activities
over time.

[114]  The
plaintiff was determined to be capable of part-time and full-time gainful
employment as a college instructor.

[115]  Ms. Tencha
was not asked to assess the plaintiff’s suitability for work in a group home
setting.

[116]  Ms. Tencha
summarized her opinion as to the impact the accident had on the plaintiff’s
overall work capacity:

It is my opinion that his overall
capacity to compete for work in an open job market has also been reduced due to
his ongoing difficulties related to pain in his neck, shoulders, upper back,
lower back and headaches.  That is, the overall number of jobs that he would be
able to compete for and sustain is limited compared to individuals without his
physical and functional restrictions.  Specifically, he would not be suitable
for jobs that require fast paced walking, climbing, prolonged standing,
prolonged sitting, prolonged or repetitive horizontal reaching, vertical
reaching, bending, crouching or prolonged kneeling.  He will require
accommodations built into any occupation, such as the flexibility to take
frequent breaks to change positions and stretch in order to remain productive.
He is best suited for work that requires at or below light level strength and
activity.  In the future, if he obtained an occupation that required static
sitting or static standing, he will require appropriate ergonomics and
ergonomic equipment in order to limit strain to his neck and spine.

[117]  Ms. Tencha
also offered specific recommendations and costs likely to be associated with
the plaintiff’s future care.  I will address this evidence when I turn to
consider the details of the plaintiff’s claim for damages for cost of future
care.

E.       Vocational
Assessment

[118]  Barry
Nordin undertook a vocational assessment of the plaintiff on August 28, 2014.

[119]  Based on a
test administered to assess vocabulary, reading comprehension and reading rate,
the plaintiff scored at the 1^st percentile compared with others who
have attained a similar educational level.  The plaintiff scored at the 9^th
percentile when tested for non-verbal problem-solving ability as compared
against individuals his age.  Both scores are well below average, and well
below what Mr. Nordin expected.  Cultural factors and language skills can
have an impact on test results.  Further, Mr. Nordin noted that the
plaintiff did inform the test administrator he was having difficulty
concentrating on the tests.

[120]  The
plaintiff said that when the tests were administered he was in pain, had a
headache, and became increasingly anxious and unable to perform within the time
limits mandated.  I accept the plaintiff’s evidence on this point.  He had been
assessed as being moderately anxious just months prior to this assessment.  The
test scores are inexplicable in any other way.  The plaintiff testified before
me over several days.  He is a thoughtful and intelligent person.  His educational
accomplishments underscore the point.  I am satisfied that these tests are not
reliable measures of the plaintiff’s reading ability or intellectual
functioning.

[121]  In any
event, Mr. Nordin did not rule out employment options for the plaintiff
based on his reading skills, but on his physical limitations as reflected in
the medical reports before him.  Mr. Nordin did not have Ms. Tencha’s
functional capacity evaluation report when he undertook his assessment of the
plaintiff.  He read it before testifying and said it did not change his
opinion.

[122]  The
plaintiff completed his Master’s degree at the age of 52 and is without a
related work history.  Mr. Nordin said the plaintiff’s age and the fact
that he has been out of the workforce negatively affect his employability.

[123]  Mr. Nordin
noted in his report that, absent the accident, the plaintiff may have been
challenged to secure employment related to his level of education.  Having said
this, his cultural background, second language, life experience and educational
level could have been marketable assets had he chosen to pursue options such as
a researcher or aid in a MLA or MP’s office, or with a non-profit group with a
focus on topics the plaintiff is familiar with (immigration, Iranian issues and
issues related to Latin America).

[124]  Mr. Nordin
noted the plaintiff was capable of working at a bakery and a group home before
the 2011 accident.

[125]  Mr. Nordin
also noted in his report that, to be successful in the job search, the
plaintiff would have to give his full attention to the task of marketing
himself, versus simply submitting applications.  This would involve joining
related organizations, networking, seeking out unadvertised opportunities, and
tailoring his resumé to
each specific job.  Mr. Nordin did not see the plaintiff’s resumé.  He agreed, however, that
the plaintiff needs help finding a job.

[126]  Mr. Nordin
said he was, “unable to identify any competitive employment options which
I think [the plaintiff] could realistically be considered suitable for.”

F.       Liability

[127]  Although
liability was not formally admitted by the defendants, the evidence establishes
that the defendant driver is wholly responsible for the accident.  By his own
admission, he rear-ended the plaintiff’s vehicle because he was not paying as
much attention as the situation called for.

G.       General
Principles of Causation

[128]  The test
for causation applicable to this case demands that this question be answered:  but
for the defendant’s negligence would the plaintiff have suffered the injuries?  The
defendant’s negligence need not be the sole cause of the injury.  As long as a
defendant is part of the cause of an injury, the defendant is liable, even
though his act alone was not enough to create the injury.  As noted in Athey
v. Leonati, [1996] 3 S.C.R. 458 at paras. 14 and 17, “There is no
basis for a reduction of liability because of the existence of other
preconditions:  defendants remain liable for all injuries caused or contributed
to by their negligence.”

[129]  The
plaintiff must establish causation for both injury and loss.  The basic
principle of tort law is that the defendant must put the plaintiff back in the
position he or she would have been in had the defendant’s tortious acts not
occurred.  The corollary is that the defendant need not compensate the
plaintiff for any loss not caused by his or her negligence or for “the
debilitating effects of [a] pre-existing condition which the plaintiff would have
experienced anyway”: Athey at paras. 32-35.

[130]  The “crumbling
skull” rule recognizes that a tortfeasor is liable for the plaintiff’s
injuries even if those injuries are unexpectedly severe owing to a pre-existing
condition.  Where, however, there is a “measurable risk” or “realistic
chance” that a pre-existing condition would have detrimentally affected
the plaintiff in the future, regardless of the defendant’s negligence, this can
be taken into account in determining whether to reduce the overall award.  This
is because the plaintiff is to be returned to his or her original position,
which might have included a risk that a pre-existing and potentially
debilitating condition would have become symptomatic and affected the plaintiff’s
future life had the negligent act not occurred.

[131]  A
defendant need not prove on a balance of probabilities that the pre-existing
condition would have actually caused the loss had the accident not occurred.  A
weakness inherent in the plaintiff that might realistically cause or contribute
to the loss claimed, regardless of the tort, is relevant to the assessment of
damages and is a contingency that should be accounted for in the award.  It is
a contingency that should be given weight according to its relative likelihood:
T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670 at para. 48.

H.       Factual Findings
Relevant to the Assessment of Damages

[132]  I make the
following factual findings relevant to the assessment and quantification of
damages:

1.
The plaintiff suffered soft tissue injuries to his neck in the 2007
accident.  Those injuries had not resolved at the time of the 2011 accident,
and were likely permanent. I accept the opinion of Dr. Jacobs on this
point.  The plaintiff’s neck symptoms had persisted for four years between accidents.
The plaintiff testified he was 60% to 70% recovered from the injuries he
sustained in the 2007 accident when the 2011 accident happened;

2.
The plaintiff’s neck injuries caused in the 2007 accident permanently
disqualified him from doing some types of heavy manual labour, particularly
jobs that required him to look up and down. I accept the opinion of Dr. Jacobs
on this point;

3.
While the plaintiff remained symptomatic at the time of the 2011
accident, his injuries were not functionally limiting in the sense that the
plaintiff was able to discharge the physical responsibilities associated with
his work at the bakery and, subsequently, in the group home. While I
accept that the plaintiff may have encountered more difficulties in discharging
the responsibilities of his job at the bakery after the 2007 accident due to
his neck-related complaints, there is no evidence before me that the plaintiff
was rendered incapable of doing that work as a result of the 2007 accident.  I
make the same observation about the plaintiff’s work in the group home.
Further, although the plaintiff’s neck injury remained symptomatic at the time
of the 2011 accident, the last time he saw Dr. Jacobs for treatment in
relation to this issue was October 13, 2009.  There was a 16-month period
between the plaintiff’s last attendance at Dr. Jacobs’ office for
complaints relating to his neck, and the date of the 2011 accident.  In this
intervening 16 months, there is no evidence the plaintiff was being treated
with prescription painkillers.  He was treating his pain on an as needed basis
with over-the-counter Tylenol and Advil;

4.
The plaintiff’s low back complaints following the 2007 accident resolved
within a couple of weeks of that accident;

5.
The plaintiff had no low back symptoms between the 2007 and 2011
accidents;

6.
The plaintiff suffers from degenerative disc disease in his cervical
and lumbar spine;

7.
The plaintiff’s pre-existing cervical degenerative disc disease had
become symptomatic prior to the 2011 accident, but the plaintiff’s symptoms
were aggravated by that accident. As early as March 2007, the plaintiff
was reporting numbness and tingling in the fingers of his right hand.  X-rays
taken of the plaintiff’s neck in July 2007 revealed moderate to severe cervical
spondylosis.  By the summer of 2009, the plaintiff was complaining of pain and
tingling in his left hand.  As Dr. Sahjpaul testified, the 2011 accident
aggravated the plaintiff’s arm symptoms, which are secondary to his cervical
spondylosis.  The plaintiff’s neck and upper extremity ailments were rendered
more symptomatic by the 2011 accident;

8.
The plaintiff’s pre-existing lumbar degenerative disc disease had not
become symptomatic prior to the 2011 accident.  There is no evidence of any
low back complaint until immediately after the 2011 accident.  I accept the
plaintiff’s evidence that his post-2011 low back symptoms were “new”
for him and emerged immediately following the accident.  I note that the
plaintiff’s credibility was not seriously challenged at trial, including on this
point;

9.
The plaintiff’s low back pain is partly myofascial, and partly
related to the L4-5 disc herniation.  As testified to by Dr. Sahjpaul, the
disc herniation is either traumatic due to the 2011 accident, or was
pre-existing and rendered symptomatic by that accident.  I am satisfied
that, but for the 2011 accident, the plaintiff would not have suffered
significant aggravation of his neck injuries and related upper extremity
ailments, nor would he have suffered the low back pain and lower extremity symptoms
he has experienced more or less constantly since the 2011 accident.  I am
unable to accept Dr. Hirsch’s opinion that the plaintiff’s neck and low
back pain, including the L4-5 disc herniation, and associated symptoms in his
upper and lower extremities, are probably not causally connected to the 2011
accident, but the result of a natural degenerative process.  There is no doubt
the plaintiff has degenerative disc disease.  But, in so far as the plaintiff’s
low back complaints are concerned, acceptance of Dr. Hirsch’s opinion
would entail acceptance of the notion that, through coincidence, the plaintiff’s
lumbar spine became symptomatic the day after the accident.  That conclusion is
not reasonably open to me on the evidence.  Further, my preparedness to rely on
Dr. Hirsch’s opinion on this point is weakened by two aspects of the
factual foundation upon which Dr. Hirsch relied in coming to that
opinion.  Dr. Hirsch’s opinion rests on factual assumptions that:  (1) the
accident was a relatively minor one; and (2) the plaintiff experienced “delayed
onset” of upper and lower extremity symptoms.  With respect to the first
assumption, it is apparent that Dr. Hirsch did not have the benefit of
seeing photographs depicting the extent of the damage this rear-end collision
caused to the front of the vehicle being operated by the defendant, Daniel
Lewis.  In my view, these photographs do not depict a collision that can
properly be characterized as “relatively minor”.  With respect to the
second assumption, within about two weeks of the accident, the plaintiff
re-attended at Dr. Jacobs’ office complaining of pain and numbness
radiating bilaterally into his posterior thighs.  While I understand that there
is room for disagreement in the medical community about what qualifies as “delayed
onset” symptoms, I cannot accept that the plaintiff’s reporting of these
symptoms, in close temporal proximity to the accident, constitutes a delayed
onset making it more likely that the symptoms are attributable to a natural
degenerative process rather than to the traumatic insult caused by the 2011
accident.  Having said this, I do accept Dr. Hirsch’s opinion that it is
likely the plaintiff’s multi-level cervical and lumbar spondylosis predisposed
him to more significant injury and a more protracted clinical course;

10.
I reject the notion that the plaintiff’s fall down the stairs in his
home was caused by an increase in the dosage of Gabapentin prescribed to him by
Dr. Jacobs.  I accept the opinion of Dr. Perry that it is very
unlikely this modest increase in dosage caused the plaintiff to fall.  I think
it likely the plaintiff fell because his pain symptoms attributable to the 2011
accident had escalated in June 2012, and he was in a compromised physical and
emotional state;

11.
I also reject the notion that the disc herniation was caused when the
plaintiff fell down the stairs in his home.  Although the timing associated
with identification of the disc herniation tends to support the defendants’
theory on this point, the plaintiff testified that his symptoms returned to
their pre-fall state a few weeks after this incident.  The plaintiff’s
credibility on this point was not seriously challenged.  Indeed, his evidence
on this issue was supported by Siamak who, despite his relationship to the plaintiff,
gave his evidence in an even-handed and credible fashion.  In addition, the
plaintiff had repeatedly made complaints of radiating pain and numbness
bilaterally down his thighs well before the June 2012 fall;

12.
The plaintiff’s current symptoms are likely permanent.  There is
no real dispute on this issue;

13.
The plaintiff is capable of work that requires at or below light
level strength and activity-related duties.  I think it likely the
plaintiff sees himself as being somewhat less physically capable than he
actually is.  For example, the report of Ms. Tencha suggests that the
plaintiff’s capacity to sit and stand for prolonged periods exceeded the
plaintiff’s self-assessment.  In addition, the assessments of Ms. Tencha
and Dr. Hirsch as to the plaintiff’s capacity to do household chores
appear to significantly exceed the plaintiff’s self-reports, including his
October 2, 2014 report to Dr. Jacobs that he could only do dishes while
standing for one or two minutes before needing to sit down, and was incapable
of doing any vacuuming or yard work.  Even though the plaintiff’s self-reports
may be the product of his experience of symptoms on a particular day, the
plaintiff’s self-reports, collectively viewed, suggest that he perceives
himself as being somewhat less capable than he is;

14.
The plaintiff’s prospects for obtaining work in his field after
obtaining his Master’s degree at the end of 2011 were poor. The plaintiff
was 51 years of age when he graduated with a degree in Latin American studies.
He had no history of related employment and an undeveloped work history since
moving to Canada in 1989;

15.
What the plaintiff has lost in terms of future earning capacity is
the ability to fall back on physically demanding jobs requiring something more
than light level strength and activity levels. I am satisfied the
plaintiff cannot now discharge the demands of working in the baking or
packaging departments of Uprising Breads.  I am also satisfied that the
plaintiff could not work as a taxi driver (something he did in Winnipeg)
because of the long periods of sitting associated with that job.  But I am
unable to accept the opinion given by Mr. Nordin.  In my respectful view, Mr. Nordin’s
inability “to identify any competitive employment options which … [the
plaintiff] could realistically be considered suitable for” speaks more to
the lack of depth of the assessment than it does to the plaintiff’s actual
future wage earning prospects.  Mr. Nordin’s opinion appears to me to
ignore the fact that the plaintiff was able to come complete and defend his
Master’s thesis within 10 months of the accident.  There are other aspects of Mr. Nordin’s
opinion that diminish the weight I am prepared to give it.  First, it is
difficult to square Mr. Nordin’s opinion with the results of the
functional capacity evaluation.  Second, Mr. Nordin concluded that in the
unlikely event the plaintiff did secure employment, he would be unable to
maintain it.  The opinion appears to encompass all types of work.  In my view,
this opinion is speculative and unsupported by any other evidence, including
the functional capacity evaluation undertaken by Ms. Tencha.  Third, Mr. Nordin
concluded that, based on his review of the medical information, it seems
unlikely the plaintiff would have been capable of committing the required level
of attention to his post-2011 job search.  Apart from the fact that the opinion
likely falls outside Mr. Nordin’s expertise, this opinion appears to be
based on an extrapolation the witness made from headaches the plaintiff has
experienced since the accident to a more generalized inability to look for a
job.  The opinion is inconsistent with the plaintiff’s evidence that he has
made over 100 job applications since his graduation and continues to do so to
this day.  Finally, Mr. Nordin did not assess the plaintiff’s capacity to
work as a support worker in a group home, despite the fact that it represents
the last job the plaintiff held; a job that paid him roughly what he earned as
a baker’s assistant.  There is no evidence before me that the plaintiff is
disabled in his ability to work as a group home support worker;

16.
The plaintiff has a residual earning capacity. I am
satisfied the plaintiff has an ability in the future to work in a job that
requires light to sedentary strength and activity levels.  The plaintiff’s age
and undeveloped employment history will certainly present obstacles to finding
future employment.  The plaintiff’s diminished employment prospects, and the
additional length of time it will likely take him to secure employment, are
factors that should be taken into account in assessing his claim for loss of
future earning capacity.  Having said this, the plaintiff is an intelligent and
thoughtful man with a good deal of life experience.  He has much to contribute
to a prospective employer.  He has more than one language and extensive
knowledge of the recent history of troubled regions.  All of these things are
marketable assets.  Unfortunately, the plaintiff has no experience looking for a
job.  There is no evidence before me that he has ever engaged in a competitive
process for a job.  His approach to finding a job has been passive (doing
Internet-based searches and filing online applications) and the plaintiff has
likely highlighted his inabilities to the exclusion of his considerable
abilities.  The plaintiff requires vocational mentoring to assist him in
marketing his abilities, skills and aptitudes.  Unfortunately, no attention has
been paid to this obvious need to date;

17.
The plaintiff is capable of performing the majority of domestic
tasks such as sweeping, mopping, washing dishes, cooking and light level yard-related
activities provided he paces himself appropriately.  He probably will require
assistance to perform more physically strenuous activities in and around his
home. In coming to this conclusion I rely on the fairly consistent
opinions of Ms. Tencha, Dr. Hirsch and Dr. Sahjpaul;

18.
On the evidence before me, I cannot conclude that the plaintiff’s
degenerative disc disease in his lumbar spine would likely have become
symptomatic had the accident not occurred. Dr. Sahjpaul was clear in
his evidence that while degenerative disc disease is a progressive ailment,
this does not necessarily mean that the patient will become symptomatic.  Dr. Hirsch
similarly testified that it is impossible to predict whether a patient will
develop symptoms as a consequence of degenerative disc disease.  In his report,
Dr. Hirsch confirmed that, “It is impossible to prognosticate how his
life would have ended up if he had not been involved in this motor vehicle
accident…”  Despite this, Dr. Hirsch later testified that it was “likely”
the plaintiff would become symptomatic within several years.  He then testified
that he did not know when the plaintiff would likely have become symptomatic,
but was able to say that his symptoms would have progressed.  Dr. Hirsch
then qualified his response noting that whether the plaintiff would have become
symptomatic absent the accident was still speculative and guesswork.  As I
understand Dr. Hirsch’s evidence on this point, he was of the view that
the plaintiff would have become symptomatic had the accident not occurred
because of:  (1) the progressive nature of the disease; and (2) the fact that
the plaintiff reported a recent deterioration of his symptoms, atypical of soft
tissue injuries, and more likely to be explained by the progression of an
underlying degenerative process.  I am not prepared to rely on Dr. Hirsch’s
evidence on this point, in part because I found his evidence to be internally
contradictory, and in part because he had the distinct disadvantage of
assessing the plaintiff at a point in time.  The plaintiff testified that his
symptoms were variable, and that when he saw Dr. Hirsch he was having good
days and bad days.  I cannot discount the possibility that the plaintiff’s soft
tissue injuries flared before he saw Dr. Hirsch.  The fact that he was
referred for attendance at Back in Motion a few months after seeing Dr. Hirsch
suggests his symptoms were particularly acute at that time.  On the evidence
before me I cannot conclude that it is likely the plaintiff’s low back would
have become symptomatic, or would have become symptomatic during his working
years, had the accident not occurred due to advancement of degenerative disc
disease in his lumbar spine.  In my view, the evidence goes no further than to
establish a risk that the plaintiff would have become symptomatic at some point
due to the advancement of degenerative disc disease in his low back.  On the
evidence before me, I am unable to say whether the plaintiff would likely have
become symptomatic soon after the accident, in old age, or not at all.  What
can be said is this:  the plaintiff at the age of 51 had developed no low back
symptoms associated with degenerative disc disease despite working in jobs
where he had to lift, bend, twist, crouch, and push and pull relatively heavy
objects.  In so far as his low back complaints are concerned, the evidence is
clear the plaintiff only became symptomatic after the 2011 accident.

I.        Assessment of
Damages

(a)      Non-Pecuniary
Damages

[133]  The
plaintiff submits that the appropriate award for non-pecuniary damages is
$85,000.  He relies on: Clark v. Kouba, 2012 BCSC 1607; Paller v. Regan,
2013 BCSC 1672; Kilian v. Valentin, 2012 BCSC 1434; and Hoy v. Williams,
2014 BCSC 234.

[134]  The
defendants submit that the appropriate award for non-pecuniary damages is
$25,000.  They rely on: Olynyk v. Turner, 2012 BCSC 1138; Gendron v.
Moffat, 2010 BCSC 1231; Anderson v. Dwyer, 2010 BCSC 526; and Cail
v. Spinks, 2005 BCSC 441.

[135]  Non-pecuniary
damages are awarded for intangible losses, such as pain and suffering, loss of
amenities, and loss of enjoyment of life.  Such damages are, by their nature,
less susceptible to scientific itemization.  The award must be fair and
reasonable to both parties.  Fairness takes its meaning from awards given in
comparable cases, although each case is unique and will turn on its own
particular facts.

[136]  The
factors to be considered in assessing non-pecuniary damages were reviewed in Stapley
v. Hejslet, 2006 BCCA 34 at para. 46.  They include:  the age of the
plaintiff; the nature of the injury; the severity and duration of the pain
experienced by the plaintiff; any mental or physical disability resulting from
the injury; any emotional suffering caused by the injury; any loss of lifestyle
flowing from the injury; and, any impairment of life including in marital,
family and social relationships.

[137]  Since the
2011 accident, the plaintiff has experienced an elevated level of pain in his
neck, and an increase in pain and numbness symptoms in his upper extremities.

[138]  In
addition, the plaintiff has experienced persistent low back pain and radiating
pain and numbness in his lower extremities.

[139]  The
plaintiff’s pain symptoms have plateaued but are relatively constant.  He
requires prescription medication to manage his pain.  His symptoms are likely
to be permanent.

[140]  The
plaintiff underwent the discomfort of three epidural steroid injections in an
unsuccessful effort to provide long-term relief.

[141]  The
plaintiff continues to experience headaches four years after the accident.  His
sleep is still disturbed.

[142]  By all
accounts, the plaintiff’s enjoyment of life has been significantly diminished
by the accident.  He is withdrawn and more socially isolated.  He is less
active.  He is less engaged.  He is less joyful.  He no longer takes pleasure
from activities (like following and debating current events) to the extent he
did before the accident.  The plaintiff’s pain has interfered with his ability
to physically interact with his grandchildren.  The plaintiff’s self-image and
emotional state have also been impaired by the 2011 accident.

[143]  The
plaintiff would have continued to experience neck-related pain from the 2007
accident and associated upper extremity discomfort had the 2011 accident not
occurred.  The plaintiff’s degenerative disc disease in his cervical spine had
clearly become symptomatic before the 2011 accident and, having become
symptomatic, there is a realistic risk that the disease and its associated
symptoms would have progressed and impacted on the plaintiff’s enjoyment of
life.  Having said this, the plaintiff’s neck pain and related symptoms from
the 2007 accident were not nearly as acute as the symptoms the plaintiff has
experienced since the 2011 accident.  Further, whether symptoms associated with
the disc degeneration in the plaintiff’s cervical spine would have progressed
rapidly as he aged, or plateaued, is something that cannot be foretold.  While
the disease would likely have advanced, the evidence supports a conclusion that
the symptoms had stabilized before the 2011 accident.

[144]  Without
factoring in the permanent neck-related symptoms the plaintiff would have
experienced from the 2007 accident, and the risk that his cervical spondylosis
would have become increasingly symptomatic had the 2011 accident not occurred,
I would have awarded $75,000 in non-pecuniary damages.  A reduction in the
award is necessary to factor in these considerations.  But I am also satisfied
that the reduction in the award for non-pecuniary damages on this account ought
to be relatively modest.  Although the plaintiff’s symptoms from his 2007
accident would have been a permanent feature of his life, they were manageable
at the time of the 2011 accident and did not significantly impair his
activities or social relationships.  Further, while there is a risk his
cervical spondylosis would have become increasingly symptomatic had the 2011
accident not occurred, it is not a quantifiable risk.  In my view, a 10%
reduction in the award for non-pecuniary damages is necessary and appropriate
to take into account the permanent nature of the plaintiff’s symptoms from the
2007 accident, and the risk that his cervical spondylosis would have become
increasingly symptomatic, impairing his quality of life.

[145]  In my
view, no further reduction is warranted on grounds that there is a measurable
risk or realistic chance that the plaintiff’s asymptomatic degenerative disc
disease in his lumbar spine would have become symptomatic, and impaired the
plaintiff’s enjoyment of life, had the 2011 accident not occurred.  Most people
in the plaintiff’s age group have degenerative disc disease.  Unlike the
plaintiff’s cervical spine disease, there is no evidence that the plaintiff was
exhibiting symptoms associated with degenerative disc disease in his lumbar
spine before the accident.  There is no evidence before me as to the rate at
which the plaintiff’s lumbar spine disease was progressing before the accident.
In a case of this kind, the gradual deterioration of the condition over many
years would support, at best, only a modest reduction in damages.  But in this
case, there is no evidence upon which I am prepared to rely that the plaintiff’s
lumbar spine condition would have become symptomatic in his lifetime.  On the
evidence before me, it is speculation to say it would have.  In my view, there
is no “measurable risk” that the plaintiff’s lumbar spine disease
would have become symptomatic in his lifetime had the accident not occurred.  I
note that similar conclusions were reached on the facts in Eblaghie v. Lee,
2010 BCSC 703 at paras. 34-35 and Johal v. Meade, 2013 BCSC 2381 at
para. 57; rev’d on other grounds 2014 BCCA 509.

[146]  In the
result, I award the plaintiff $67,500 in non-pecuniary damages.

(b)      Past
Wage Loss and Loss of Future Earning Capacity

[147]  I turn
next to the plaintiff’s claim for past and future loss of income.

[148]  The
plaintiff’s claims are complicated by a variety of factors, including his age
and the absence of any developed work history since his move to Canada.

[149]  Because
the plaintiff has no recent employment history, and was not employed at the
time of the accident, his claim for past wage loss is, analytically, akin to
his claim for loss of future earning capacity: Kumar v. Elpidio, 2013
BCSC 236 at para.  41.  For this reason, I will consider these two claims
together.

[150]  A claim
for loss of future earning capacity raises two key questions:  1) has the
plaintiff’s earning capacity been impaired by his injuries; and, if so 2) what
compensation should be awarded for the resulting financial harm that will
accrue?  The appropriate means of assessment will vary from case to case: Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); Pallos v. Insurance Corp.
of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.); Pett v. Pett,
2009 BCCA 232.

[151]  The
assessment of damages is ultimately a matter of judgment, not calculation: Rosvold
v. Dunlop, 2001 BCCA 1 at para. 18.

[152]  In so far
as possible, the plaintiff should be put in the position he would have been in
but for the injuries caused by the defendants’ negligence: Lines v. W &
D Logging Co. Ltd., 2009 BCCA 106 at para. 185.  The essential task of
the Court is to compare the likely future of 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.

[153]  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 v. Leonati,
[1996] 3 S.C.R. 458 at para. 27.  A plaintiff is entitled to compensation
for real and substantial possibilities will him of loss, which are to be
quantified by estimating the chance of the loss occurring: Athey v. Leonati,
supra, 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.

[154]  There are
two possible approaches to assessing loss of future earning capacity:  the “earnings
approach” from Pallos; and the “capital asset approach”
in Brown.  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.

[155]  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: Pallos; Gilbert v. Bottle, 2011 BCSC
1389 at para. 233.

[156]  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 himself as a
person capable of earning income in a competitive labour market: Brown;
Gilbert at para. 233.

[157]  Regardless
of which approach is more suitable to the circumstances of the case, the
plaintiff must always prove that there is a real and substantial possibility of
a future event leading to an income loss: Perren, at para. 32.

[158]  The
plaintiff seeks an award for past wage loss between $45,000 and $50,000, plus a
$200,000 award for loss of future earning capacity.

[159]  The
defendants submit the plaintiff has failed to prove a past wage loss.  In
addition, the defendants submit the plaintiff has not proven, on a balance of
probabilities, that the accident diminished his future earning capacity.

[160]  While the
two approaches to the quantification of loss of earnings are not mutually
exclusive, in the absence of an earnings history, I consider the capital asset
approach to be more appropriate in this case.

[161]  What the
plaintiff has lost in this case is the ability to access employment
opportunities requiring strength and activity levels above those associated
with light level duties.  The plaintiff’s ability to access this kind of
employment was reduced, to some extent, by the 2007 accident, which resulted in
neck injuries limiting his ability to look up and down.  This must be taken
into account.  At the same time, it must be recalled that the plaintiff was,
after the 2007 accident, able to manage the physical demands of working as a
baker’s assistant.  He cannot do so now, nor could he pursue employment that
has similar physical demands.  Further, the evidence supports a conclusion that
this type of employment opportunity was open to the plaintiff following the
accident.  He was offered work at Uprising Breads in the summer of 2014 – work
he was unable to accept due to his physical limitations.

[162]  I am
satisfied that a capital asset has been lost.  The plaintiff is, as a
consequence of the 2011 accident:  less attractive as a potential employee to
new employers; unable to take advantage of all job opportunities previously
open to him; and less valuable to himself as a person capable of earning income
in a competitive labour market.

[163]  I am also
satisfied that there is a real and substantial, not merely abstract,
possibility of future income loss.  At his age, and with a sparse employment
history, the plaintiff will always be challenged to compete with younger, more
qualified job applicants.  It will likely take him longer to find employment.
It is also more likely he will be considered for part-time and temporary
positions.

[164]  That the
plaintiff faces a future of scrambling to find work was a reality he faced
before the 2011 accident.  What the 2011 accident took away from the plaintiff
was the ability to fall back during periods of unemployment on less desirable,
unskilled jobs requiring medium strength and activity levels, like the job the
plaintiff had at Uprising Breads.

[165]  Clearly,
the plaintiff is not disabled.  He has an as yet unrealized residual earning
capacity.  The challenge in this case is valuing the portion of the plaintiff’s
capital asset that has been lost as a consequence of the 2011 accident.

[166]  With
respect to the pre-trial period, I am satisfied that but for the accident the
plaintiff would have completed his Master’s degree in April 2011 and spent the
remainder of the year unsuccessfully looking for work in his area of study.  It
is reasonable to assume that by January 2012 the plaintiff would have been
working in alternative employment while he continued to search for jobs that
aligned with his academic credentials.

[167]  The
plaintiff had personal contacts at Uprising Breads and was well thought of as a
previous employee of this business.  I think it likely that the plaintiff would
have been able to secure part-time employment at Uprising Breads or an
equivalent bakery.  The plaintiff submits that he would have earned between
$15,000 and $16,500 per year.  In my view, the plaintiff would have made
somewhat less than that to start as it is likely his work would have been part time.
As the plaintiff re-established himself at work, it is likely he would have
been offered additional hours and would have made annual income in the range
noted above in 2013 and 2014.

[168]  While I
agree with the defendants’ assertion that the plaintiff has a residual earning
capacity, they do not assert, as an alternative position, that the plaintiff
failed to mitigate his damages pending the trial by more aggressively pursuing
alternative employment he is capable of doing.  Clearly, the plaintiff has
tried to find employment pending trial.  His inability to secure work is, in
part, attributable to the absence of an established work history.  But it is
also fair to say that the plaintiff’s inability to secure work is less
attributable to the absence of marketable skills, than it is to his lack of
experience and knowledge as to how to market the skills and attributes he has.

[169]  Moving
forward, it is reasonable to assume that the observations of Mr. Nordin
(that the plaintiff has to market himself versus simply submitting an
application, join related organizations, network, seek out unadvertised
opportunities and tailor his resumé
to each specific job) will assist the plaintiff in tapping into his residual
earning capacity.  For this reason, I do not regard the plaintiff’s past wage
loss as a reliable predictor of what his future wage loss is likely to be.

[170]  I award
the plaintiff $40,000 for past wage loss.  A plaintiff is, of course, only entitled
to recover damages for past net income loss.  I will leave to the parties the
task of endeavouring to agree upon an approach to netting out this award.  If
necessary, directions may be sought from the Court.

[171]  Turning to
the future, I am satisfied that once the plaintiff has adjusted his job search
methodology, his without-accident earning potential is not significantly more
than what he probably will earn.  The plaintiff has the capacity to work full
time and, once he learns to market his skills to their full potential,
including his life experience and language skills, it is likely he will be able
to secure employment and earn income roughly equivalent to his without-accident
earning potential.

[172]  Again,
what the plaintiff has lost is the ability, when it becomes necessary for him
to do so, to fall back on more demanding types of work he is no longer capable
of doing.  In addition, that the plaintiff has lost access to some of the work
previously open to him likely means it will take him longer to secure
employment, not only initially but when temporary jobs and part-time work comes
to an end.

[173]  I am
satisfied that this loss is real and likely to arise, and not something that
merely exists in the abstract.  But valuing it is a challenge and the award can
do no more in this case than provide a rough and ready estimate of the
plaintiff’s loss.

[174]  The
assessment of loss must also take into account the negative contingencies
addressed in paragraph 144 that risked disqualifying him from some types of
work requiring flexibility and more than light level strength and activity levels.

[175]  Factoring
in these considerations, I award the plaintiff $30,000 for loss of future
income earning capacity.  The plaintiff submits he would have earned about
$15,000 per year in 2012, 2013 and 2014 had the 2011 accident not occurred.
The award I make for loss of future income earning capacity compensates the
plaintiff for between 1 1/2 and two years of lost future income.

(c)      Loss
of Housekeeping Capacity

[176]  The
plaintiff claims for loss of both past and future housekeeping capacity.  This
head of damages compensates the person for lost ability to do work of economic
value inside the home.  The award reflects the loss of a personal capacity and
is not dependent upon whether replacement housekeeping costs are actually
incurred: O’Connell v. Yung, 2012 BCCA 57 at para. 67.

[177]  The
plaintiff seeks an award of $5,000 to compensate him for past loss of
housekeeping capacity for the four-year period from the date of the accident to
the date of trial.  The evidence is clear and uncontested that in the weeks
following the 2011 accident the plaintiff’s friends assisted with housekeeping
tasks.  Since that time Siamak and Nazak have regularly assisted the plaintiff
with housekeeping tasks.  I acknowledge that the plaintiff was, to some extent,
restricted in performing housekeeping tasks after the 2007 accident.  But his
capacity to do so was further decreased by the 2011 accident.  I am satisfied
that $5,000 is a reasonable sum to compensate the plaintiff for past loss of
housekeeping capacity.

(d)      Cost
of Future Care

[178]  As noted
in Fifi v. Robinson, 2102 BCSC 1378 at para. 151, the purpose of an
award for cost of future care is to restore, as best as possible with a
monetary award, the injured person to the position he or she would have been in
had the accident not occurred.  The award is based on what is reasonably
necessary on the medical evidence to promote the mental and physical health of
the plaintiff.  In addition, compensation should be restricted to expenses the
plaintiff is likely to incur: Krangle (Guardian ad litem of) v. Brisco,
2002 SCC 9 at para. 23; Izony v. Weidlich, 2006 BCSC 1315 at para. 74.

[179]  The
plaintiff’s claim for cost of future care is supported primarily by the reports
of Ms. Tencha and Dr. Jacobs.  Those future care costs have been
itemized and valued over the plaintiff’s life expectancy in a cost of future
care report prepared by Mr. Peever.

[180]  The plaintiff
submits that $125,000 is an appropriate award for cost of future care.

[181]  The
defendants submit that a cost of future care award should be limited to about
$1,800 and should only cover:  the cost of an active rehabilitation program;
Tylenol 3 as may be required by the plaintiff in the future; and a small
contribution to the cost of a gym membership.

[182]  Ms. Tencha
makes provision in her cost of future care report for a supportive pillow,
memory foam topper and supportive backrest, as well as replacement costs for
these items every two to five years.  As the plaintiff would have needed to
purchase a pillow had the accident not occurred, Ms. Tencha has identified
in her report a cost range representing the difference between a regular and
supportive pillow for the plaintiff’s neck.  No allowance is made in her report
for the impact on the plaintiff of the 2007 accident, particularly on his neck,
or the risk that his cervical spine complaints would increase as a consequence
of the natural progression of his disc disease and would eventually require the
incursion of care costs.  Mr. Peever estimates that the present value of
these future care costs are, at the low end, $2,698, and at the high end, $3,348.
I consider that an award of $2,000 properly addresses these costs taking into
account the likelihood that the plaintiff would eventually have required at
least a supportive pillow (the least expensive of these costs) for his neck
symptoms.

[183]  Ms. Tencha’s
report includes provision for supportive athletic shoes she believes the
plaintiff will benefit from to reduce the stress in his lower back while
participating in his exercise program.  Her cost estimates again reflect the
differential between regular running shoes and the more expensive running shoes
she recommends for the plaintiff.  Ms. Tencha recommends replacement of
these shoes every year.  While the differential in cost is something that
should be recognized in an award, it is unlikely that the plaintiff will, or
will need to, replace his running shoes every year.  I award $500 for this
item.

[184]  The
plaintiff claims an award for future housekeeping costs ranging from
$47,000-$72,000.  I am satisfied there is a permanent impairment of the
plaintiff’s ability to do some types of household tasks, particularly those
that are more physically demanding or require twisting and bending.  This
conclusion is supported by Ms. Tencha and by all of the medical experts
who testified at trial.

[185]  Ms. Tencha’s
opinion with respect to the plaintiff’s functional capacity is that he is
capable of performing light homemaking chores such as sweeping, mopping,
washing dishes, and cooking as long as he paces himself appropriately, but will
likely experience more difficulty and an increase in his symptoms with tasks
requiring moderate to heavy demands, or those that place strain on his neck,
shoulders and lower back.  Having reached this conclusion, Ms. Tencha then
cost out a future care award that includes regular inside housekeeping,
including sweeping and mopping.  I am unable to reconcile this aspect of Ms. Tencha’s
functional capacity evaluation with her cost of future care recommendations.
Having said that, I am satisfied the plaintiff will require assistance with
heavier duties associated with home maintenance.

[186]  This
aspect of the future cost of care award must also take into account:  the fact
that the plaintiff’s 2007 accident permanently prevented him from discharging
household tasks requiring him to extend his neck; the risk that his cervical
spine disease would become increasingly symptomatic; and, that ICBC is
currently paying for the plaintiff’s wife to receive three hours of inside
cleaning assistance every two weeks.  As to the third factor, there is no
evidence before me that the provision of housekeeping assistance to the
plaintiff’s wife is a permanent arrangement.  I am, as a consequence, unable to
assign this consideration much weight.

[187]  I am
satisfied the plaintiff can do most inside housekeeping tasks if he paces
himself.  He will, however, need assistance with heavier home and yard
maintenance tasks including trimming trees, cleaning gutters, washing outside
windows, power washing, and minor household repairs requiring flexibility,
reaching, twisting, crouching and/or bending.

[188]  Taking the
midway point between the high and low cost estimates, or approximately $60,000,
and taking into account the following positive and negative contingencies:  the
plaintiff can do most inside household related chores; his ability to do some
outside household chores was impaired by his 2007 accident; the risk that the
advancement of the plaintiff’s cervical disc degeneration would have eventually
required him to engage future assistance with household tasks; and his capacity
to perform housekeeping tasks will likely be further reduced once he returns to
work, I award the plaintiff $30,000 for future loss of housekeeping capacity.

[189]  As
recommended by Ms. Tencha, I award the plaintiff $200 to attend
kinesiology sessions to ensure he is performing exercises correctly.  I note
that this recommendation is supported by Dr. Hirsch.

[190]  The
present value of a gym membership over the plaintiff’s life expectancy, and
factoring in the annual rates he would pay at different ages, is $7,788.  I
would reduce this modestly to take into account the contingency that the
plaintiff would have joined a gym as a consequence of the need to stretch and
exercise after his 2007 accident.  I award $7,000 to address these costs.

[191]  Ms. Tencha’s
cost of future care report addresses the future cost of:  massage therapy;
chiropractic sessions; pulsed electromagnetic field treatments; and ergonomic
assessment and ergonomic equipment.  In closing argument, the plaintiff
conceded the evidence does not support a future care cost inclusive of these
services and items.

[192]  Ms. Tencha’s
cost of future care report also includes estimated costs associated with
occupational therapy sessions.  There is no evidence that the plaintiff has
engaged in occupational therapy in the past and I am not satisfied, on the
evidence before me, that he will do so.

[193]  With
respect to the plaintiff’s future medication needs and costs, Ms. Tencha
addresses the plaintiff’s future need for and reliance on Gabapentin/Lyrica and
Tylenol 3.

[194]  Ms. Tencha’s
assumes the plaintiff takes one Tylenol 3 tablet three or four times per week.
The frequency with which the plaintiff takes Tylenol 3 in addition to his
regular prescription pain relief medication is unclear on the evidence before
me.  While the plaintiff occasionally uses Tylenol 3 to manage his bad days, I
am not satisfied that he uses this medication three or four times a week in
addition to his regular prescription pain relief medication.  In addition, the
award for the future cost of Tylenol 3 must take into account the risk that the
plaintiff’s cervical spine degeneration would have caused him at least
occasional periods of discomfort he would have treated with a prescription pain
relief medication.  I award the plaintiff $300 for future costs associated with
Tylenol 3.

[195]  With
respect to the plaintiff’s regular prescription pain relief medication, the
estimated yearly cost of Gabapentin is $1,248.  Using the applicable
multiplier, the lifetime cost of Gabapentin is $25,569.  The estimated yearly
cost of Lyrica is $2,825.  Using the same multiplier, the lifetime cost of
Lyrica is $57,800.  The plaintiff testified that he experienced better symptom
relief while on Lyrica.  Dr. Jacobs testified he would likely have
continued to treat the plaintiff with Lyrica, but switched back to Gabapentin
because the additional, and uncovered, costs associated with prescribing Lyrica
gave rise to an insurmountable cost barrier.  The plaintiff seeks a future cost
of care award that includes the sum of $30,000 for additional costs associated
with Lyrica.

[196]  In my
view, making provision in the cost of future care award for Lyrica has been
shown to be reasonably necessary to support the plaintiff’s physical and
emotional health.  Allowing the plaintiff’s claim on this account is also
consistent with the rationale underlying a cost of future care award – to
restore, as best as possible, the plaintiff to the position he would have been
in had the accident not occurred.  I award the plaintiff $30,000 for the
lifetime difference in cost as between Gabapentin and Lyrica.

[197]  Ms. Tencha’s
report also addresses costs that may be incurred if the plaintiff requires
surgical intervention in the future.  The plaintiff did not press, in written
or oral submissions, this component of his cost of future care claim.

[198]  There is
no evidence the plaintiff will require surgery.  If his symptoms deteriorate,
surgery may be considered at some point.  The uncovered costs to the plaintiff
following a future surgical intervention are relatively modest.  In addition, Dr. Sahjpaul
testified that if surgery goes ahead, there is a more predictable chance of
improvement.  In other words, the allowance for cost of future care made herein
may well exceed the plaintiff’s future needs in the event that his situation
improves through surgical intervention.  Weighing these factors as best I can,
and taking into account the position of the plaintiff on this point, I make no
allowance for future care costs based on the contingency that the plaintiff may
require surgery at some future date.

[199]  The total
award for cost of future care is, therefore, $70,000.

(e)      Special
Damages

[200]  The
parties agree the plaintiff incurred special damages totaling $581.63 for:  one
prescription; parking; recreational passes; exercise equipment; and mileage.

[201]  The
plaintiff incurred an additional $2,566.78 in tuition fees as a consequence of
his decision to extend the completion date for his Master’s thesis.  In my
view, it was reasonable for the plaintiff to incur these additional tuition
costs so he could continue to work on his thesis with access to his supervisor
and the academic facilities at SFU.  I do not accept the defendants’ position
that the plaintiff ought to have applied for a leave, or that it is appropriate
to engage in an ex post facto analysis about what the plaintiff was
actually able to accomplish by way of progress on his thesis during the time
covered by his academic extensions.  The plaintiff could not possibly have
forecast how he would progress immediately following the accident and adopted a
reasonable course of conduct by incurring additional tuition fees to extend the
completion date of his thesis.  I am satisfied that the academic extension
obtained by the plaintiff is attributable to the 2011 accident.  Accordingly, I
award the plaintiff $3,148.41 in special damages.

J.       Conclusion

[202]  I award
the plaintiff:

[203]
Unless there is some reason that makes such an order inappropriate, in
which event I may be spoken to, the plaintiff will have his costs at Scale B.

“FITCH J.”