IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Grewal v. Naumann, |
| 2015 BCSC 1147 |
Date: 20150703
Docket: M112472
Registry:
Vancouver
Between:
Pardeep Grewal
Plaintiff
And:
Stefan
Gerhard Naumann, En Vogue Nail Systems Inc. and Chrysler Financial Services
Canada Inc.
Defendants
Before: The Honourable Mr. Justice
D.M. Masuhara
Reasons for Judgment
Counsel for Plaintiff: | R.E. McCardell S.R. Lerner |
Counsel for Defendants: | C. Godwin |
Place and Date of Trial: | Vancouver, B.C. October 6-10, 14-17, January 15-16, 2015 March 3, 2015 |
Further Written Submissions: | March 9 and 13, 2015 |
Place and Date of Judgment: | Vancouver, B.C. July 3, 2015 |
Table
of Contents
V. Functional Capacity
Evaluation
IX. Diminished Earning
Capacity – Past and Present
A. Past
Loss of Income Opportunity
X. Loss of Future Income
Capacity
XI. Diminished
Housekeeping Capacity-Future Cost of Care for Housekeeping Services
I.
Introduction
[1]
The plaintiff, Mr. Grewal seeks damages arising from a motor
vehicle accident that occurred on June 28, 2007 in the intersection of 64th
Street and 200th Avenue, Langley, B.C. (the Accident). He was 26
years old at the time and is now 33 years old. Mr. Grewal was driving a
1997 Honda Civic and was attempting to turn left at the intersection; Mr. Naumann
was driving a 2007 Dodge Ram pickup and was going through the intersection
travelling in the opposing direction. Mr. Grewal was T-boned by Mr. Naumann
on the passenger side of the Honda he was driving. Mr. Grewal was
transported by ambulance to Langley Memorial hospital. Mr. Grewals
vehicle was declared a total loss. The Dodge Ram sustained damage valued at $14,608.81.
The plaintiff seeks damages for his injuries caused by the Accident including
chronic pain around his right shoulder, right wrist, right knee, right ankle,
and neck; and recurrence of depression.
[2]
At the hospital Mr. Grewal was diagnosed to have right arm
lacerations, chest abrasion, abdomen injury, and fractured right ribs 10-12 with
ribs 11-12 being comminuted fractures. He was found to have a small renal
contusion, and mild retro-peritoneal hemorrhage. Shortly after his release
from hospital he saw his family doctor Dr. Singh. She found a right elbow
laceration, right lateral thigh pain, right flank and lateral axilla pain, and
a bruise on the right lower back. She found on the cervical spine decreased
forward flexion, decreased lateral rotation, decreased extension and decreased
lateral flexion. The medial side of the right knee was tender with mild
swelling. Bruises and abrasions were noted on his torso.
[3]
At the time of the Accident Mr. Grewal was employed as a mobile
security guard and was engaged in the course of his work duties travelling from
one site to another. His injuries were not covered by the Workers
Compensation regime.
[4]
Apportionment of liability including contributory negligence has been
settled between the parties. These reasons deal with causation and quantum of
damages.
[5]
An Agreed Statement of Facts was tendered at the start of trial.
[6]
The witnesses called in the plaintiffs case, in addition to the
plaintiff were: Mr. B. Gill, a friend of the plaintiff; Dr. H. Mallavarapu,
the plaintiffs treating psychiatrist; Dr. D. Gouws, an occupational
medicine specialist; Ms. Louise Craig, a functional capacity evaluator; Ms. R.
Johal, the plaintiffs cousin; Dr. C. Hershler, a physiatrist; Mr. A.
Grewal, the plaintiffs father; Mr. G. Mahal, the plaintiffs uncle; Dr. D.
Powers, a vocational rehabilitation consultant; Mr. R. Carson, an
economist; Dr. S. Lui, an orthopedic surgeon, who appeared by video deposition;
Dr. K. Singh, the plaintiffs family physician; and Mr. T. Horne, the
plaintiffs former manager.
[7]
The witnesses called in the defence case were: Mr. D. Hildebrand,
an economist; and Dr. M. Boyle, an orthopedic surgeon.
II.
Issues
[8]
The issues to be determined are to what extent the Accident caused Mr. Grewals
injuries; and to the extent it did, the quantum under each head of damage
claimed namely: general damages, past loss of income opportunity, loss of
future earning capacity, diminished housekeeping capacity, and cost of future
care. Entitlement to special damages and the amount has been agreed to by the
parties.
III.
Background
[9]
Mr. Grewal grew up in Surrey, BC. He was a good student in
elementary school. He developed symptoms of depression in Grade 9 or Grade 10
which carried on through high school. He did not complete his Grade 12 requirements
and did not graduate. He attributes his depression to this.
[10]
Following high school in 1999 he assisted his father for a few months in
his delivery business. He then returned to high school to complete the courses
he needed to graduate. Unfortunately, he dropped out and did not complete the
courses. From August 2000 to January 2001, he worked for a jean
manufacturer as a sandblaster/sorter; from July 2001 to
November 2001, he worked as a sales representative selling vacuum
cleaners; and from June 2003 to September 2003, he worked as a
production worker for a glass and ceramics company. In November 2003 he
found work as a cashier at a fast food restaurant and worked there to March 2006.
More recently he learned that, as a result of the courses he took for one
semester in 1999 at Vancouver Film School, he had enough credits to receive his
adult high school diploma and he has now obtained it.
[11]
In 2000, his family physician Dr. Singh diagnosed Mr. Grewal
with major depression which included extended bouts of insomnia. He began to
see a psychiatrist (Dr. Sandhu) in 2000 or 2001. He was prescribed
antidepressants and received therapy for about two years. Mr. Grewal
described that he had been suffering from depression for several years,
starting in Grade 9 or Grade 10, prior to seeing Dr. Sandhu and
that by the time he saw the psychiatrist things had gotten bad. In the
summer of 2002 he stopped taking antidepressants on his own decision. He
stated he did so because of side effects and that his mood had improved. He
attributed his improvement to lifestyle changes such as regular exercise –
running and weight lifting, proper nutrition and mediation. He would run 2 to
3 times a week. He would weight train 3 to 6 times a week. Socially, he
described himself as an introvert but had a small tight group of friends he
would socialize with.
[12]
Mr. Grewal was involved in two motor vehicle accidents prior to the
Accident, 1999 and 2003. They were low speed and did not require any
physiotherapy or massage therapy treatments.
[13]
In October 2006, Mr. Grewal found full time work as a security
guard for Core Specialized Investigations. He worked at events, pubs and
hotels. Around this time, Mr. Grewal and Mr. Gill, his friend of
many years, discussed careers including a mutual interest in policing. Mr. Gill
several years later took the RCMP written exam in around early 2011 and passed,
by this time Mr. Gill held a teaching position. He took a practice
physical exam. He did not do well and did not take further steps towards a
policing career.
[14]
In February 2007, Mr. Grewal left Core Specialized
Investigations and began working full time as a Mobile Security guard for
United Protection Services (United).
[15]
As a mobile security guard he earned a higher hourly rate than a static
security guard. The position required a good level of fitness, frequent stair
climbing, driving, getting in and out of vehicles, and significant walking. Mobile
patrollers during a shift travel by car between several client locations to
ensure security. Mobile patrollers are also first responders to emergencies
like residential and commercial alarms. The gist of Mr. Hornes evidence
(Mr. Grewals manager at United) was that the position involved a higher
level of fitness and of responsibility than that of a static guard who essentially
sit there and watch something to make sure it is secure.
[16]
Mr. Horne viewed Mr. Grewal as a very good mobile patroller. He
credited Mr. Grewals diligence with significantly reducing the crime on
his assigned route and improving customer good will by paying attention to the
details throughout his patrol shifts. He testified that Mr. Grewals
prospects for promotion to field manager were very good before the Accident.
[17]
Mr. Grewal has always lived with his parents and does so to this
day. He assisted with food preparation, cooking, mowing the lawn, and doing
other general housework such as vacuuming. He says he does so now but in a
much more limited way because of his injuries.
[18]
Mr. Grewal prior to the Accident was physically fit. He weight
lifted in his home gym and also frequently went jogging. He had no trouble
with sitting or driving and had no limitations for standing, crouching or
climbing. He would play with his younger nieces and nephews. He lived a quiet
life.
[19]
Around the time of the Accident Mr. Grewal had not determined his
career aspirations. He testified that his goals were not clear but that he was
weighing options which included returning to school to complete Grade 12
to and pursue a degree. His considerations included a career in policing, firefighting
and fitness instructing. In the months prior to the Accident, Mr. Grewal
borrowed from the public library three books on policing. He stated that he
did so to gain insight and knowledge about the area.
[20]
He weighed 165 to 170 lbs prior to the Accident. Today he weighs between
155 to 160 lbs. His height is 5 feet 9 inches.
[21]
As stated at the outset, on June 28, 2007 while on his shift the
plaintiff was involved in the Accident.
[22]
The injuries suffered by the plaintiff in the Accident were fractures to
three ribs, the right 10th, 11th and 12th;
internal injuries to his kidney and duodenum. At the hospital the plaintiff
began to notice right knee and right shoulder pain. Further, details are
discussed later in these Reasons.
[23]
He was hospitalized for his injuries for four nights and five days at
Langley Memorial Hospital. He remained completely off work until
January 28, 2008.
[24]
For the first few months after the Accident, Mr. Grewal rarely left
his home. He spent his days either in bed or on the sofa or, according to his
father, lying on the floor. By the time he began physiotherapy in August 2007,
he estimated a walking tolerance of 150 metres. Mr. Grewal began
physiotherapy on August 23, 2007 and attended 33 treatments through to
January 7, 2008. The treatments were focused on his shoulder, knee, neck
and back pain. Initially he attended three times a week. The treatment
focused on pain control using various modalities and mobilization. By January 2008
his attendances were once every few weeks. He terminated his treatments on
January 27, 2008. He was in pain and maintained a very low activity
level. Sleep was difficult because of the pain caused from his injuries
particularly his damaged ribs.
[25]
His rib fractures healed by September 2007 and by the end of 2007
his rib pain began to lessen and Mr. Grewal started to regain some of his
mobility.
[26]
Mr. Grewal returned to work in January 2008 on a graduated
basis which lasted until April 2008. At first he spent a few half-shifts
riding with a mobile patroller but thereafter was assigned static guard work at
a high-rise apartment building in Burnaby. Mr. Horne had concluded at the
time of his return that Mr. Grewal as a result of his condition would not
be suited for mobile security work. In May 2008, Mr. Grewal was
working full time as a static security guard – 40 hours/week.
[27]
He was then assigned to the Triton Transport site. He worked there 5
days a week at 8 hours/day. Mr. Horne assigned this site to Mr. Grewal
because compared to other sites it could be patrolled with less physical effort
and there was a lower chance of encountering an emergency. Mr. Horne
testified that he had to negotiate with the lot owners of Triton to maintain Mr. Grewals
pre-Accident mobile security guard rate of $12.00 per hour. There was little
opportunity for overtime contrasted to his job as a mobile patroller.
[28]
By the summer of 2008 Mr. Grewal had resumed weight training and
was working out two to three times per week. The weights were lighter than he
lifted before the Accident and the workouts focused on cardiovascular and
overall body fitness.
[29]
Throughout 2008, Mr. Grewal on multiple occasions sought treatment
from Dr. Singh for right knee pain, right shoulder and upper back pain,
neck pain, low back pain and right wrist pain. In September 2008, Dr. Singh
referred Mr. Grewal to Dr. Jaworski, a physiatrist, because of the
ongoing nature of the symptoms. At the end of 2008, Dr. Singh referred Mr. Grewal
to Dr. Lui, an orthopedic surgeon regarding his right knee complaints.
[30]
Throughout 2008, Mr. Grewal continued to work and continued his gym
exercises. He also required regular pain and anti-inflammatory medications.
He was taking two doses of Tylenol 3 on working days until the summer when
he switched to over-the-counter Tylenol and Advil on the advice of Dr. Singh.
His evidence was that he took the maximum dose of over-the-counter Tylenol (two
pills, four times per day) and Advil a few times per week.
[31]
Mr. Grewal had been prescribed Meloxicam as an anti-inflammatory
from the time of the Accident through his graduated return to work. When he
returned to work full time, Dr. Singh noted increased symptoms (right
knee, right ankle, ribs and low back) so she prescribed Naproxen and Diclofenac
(Voltaren) in April 2008. Dr. Singh increased the Diclofenac dose in
June from 50 mg to 75 mg.
[32]
Sleep disturbance became an issue in the summer of 2008 as finding a
comfortable sleeping position was a challenge. Dr. Singh began
prescribing the antidepressant Elavil (Amitriptyline), to help him sleep. By
the end of 2008, Mr. Grewal was complaining of low energy.
[33]
Through summer 2008 and into early 2009, Mr. Grewal had been
maintaining a workout regime and was back at work full time. His pain had been
improving over the previous year and a half; however by early 2009, he noticed
it was no longer improving.
[34]
Dr. Singh again referred the plaintiff to Dr. Jaworski, a
physiatrist. Examinations and x-rays and tests were conducted. In March 2009,
Dr. Jaworski diagnosed Mr. Grewal with chronic musculoskeletal pain
and advised him to do regular exercises, maintain a positive frame of mind and
to use plain analgesics as needed.
[35]
From June 2009, Mr. Grewal and Dr. Singh began regularly
prescribing Cipralex for depression as well as Clonazepam for sleep. Mr. Grewal
has remained on antidepressant medication since.
[36]
Throughout 2009 Mr. Grewals right knee continued to be a
persistent problem. Through this time he ranked it among his most troubling
physical symptoms. Dr. Lui suspected a meniscal tear and contusion of the
knee cartilage. An MRI done in April 2009 was inconclusive in this
respect and continued conservative measures were recommended.
[37]
Over the second half of 2009, Mr. Grewals dosage of Cipralex was
increased from 10 mg to 15 mg and then to 20 mg. He also was
being prescribed Ativan.
[38]
Through 2010, Mr. Grewals depression was medically managed under
the care of Dr. Singh with Cipralex and Clonazepam. After an unsuccessful
attempt to lower the Cipralex dose in January 2010, it was moved back up
to 20 mg and stayed there through the year.
[39]
Mr. Grewal gave evidence that his mental health seemed to stabilize
somewhat in 2010, particularly toward the end of the year that it was no
longer getting worse. However, his physical injuries, particularly his right
knee pain continued. Dr. Lui administered three injections of hyaluronic
acid in July, September and October in 2010. Other than some temporary relief
on the first try, Mr. Grewal said the injections did not alleviate the
knee pain.
[40]
In November 2010, Dr. Singh was prescribing Tylenol 3
again for pain and in December she added Diclofenac back to Mr. Grewals
prescription.
[41]
In 2010, one of the lot owners at Triton went bankrupt and the hours
available to Mr. Grewal at that site were cut to three days a week.
[42]
Mr. Horne was in charge of scheduling and site assignments during
this time. Mr. Grewal had advised that he was available for work at other
locations twenty four seven but advised Mr. Horne that he was not
comfortable with assignments that involved significant driving. Mr. Horne
testified that due to physical demands at other sites, Mr. Grewal could
not simply be reassigned to make up the hours elsewhere.
[43]
Where opportunities arose that were within Mr. Grewals capacity,
he took advantage of them. He obtained temporary assignments at a downtown
site during the Olympics in early 2010. He worked a number of one-off
assignments as well. After 2010 he took some short-lived temporary
assignments.
[44]
Mr. Grewal agreed in cross-examination that he worked all the
shifts made available to him after his hours were cut at Triton.
[45]
By January 2011, Dr. Lui was recommending surgery for Mr. Grewals
knee. In May 2011, Mr. Grewal agreed to the procedure and was placed
on the waiting list.
[46]
Through early 2011 Mr. Grewals right sided musculoskeletal
complaints continued. Dr. Singh continued to prescribe Tylenol 3 and
Diclofenac.
[47]
In April 2011, Dr. Singh suspected a return of major
depression and anxiety. He had presented to her that month in a state of
anxiety, his mind racing. She changed his medication to Effexor. In June of
2011, Dr. Singh increased the dose to 150 mg and referred Mr. Grewal
to Dr. Mallavarapu, a psychiatrist.
[48]
Dr. Mallavarapu saw Mr. Grewal in October 2011 and
diagnosed a major depressive disorder and a chronic pain disorder. He
prescribed Effexor at 225 mg.
[49]
Mr. Grewal had been back on Effexor for six months by this time. Mr. Grewal
had experience with Effexor in about 2000 during his earlier depression. His
experience was that after a certain time it was only effective at higher doses
and it tended to blunt the highs and lows of life. He was experiencing this
muted feeling again so in about November 2011, he attempted to discontinue
his antidepressant medication without obtaining medical advice. While Dr. Mallavarapu
testified that he had likely told Mr. Grewal to come off the Effexor,
this evidence is inconsistent with the consult report he provided to Dr. Singh.
In any event, Mr. Grewal by the next appointment with Dr. Mallavarapu
on December 1, 2011 was feeling slightly better as far as his mood. Dr. Mallavarapu
noted that Mr. Grewal was at that time not taking any psychotropic
medications. In September 2012, Dr. Mallavarapu stated that Mr. Grewals
sleep was good.
[50]
In February 2012, Dr. Mallavarapu started Mr. Grewal on a
new antidepressant, Cymbalta (30 mg.). Dr. Mallavarapus opinion was
that Mr. Grewals condition included longstanding chronic pain and that,
if not properly addressed, would continue to activate the depression in a
vicious cycle. Cymbalta was a drug that could address both conditions.
[51]
The prescribed dose of Cymbalta went from 30 mg to 60 mg in
March 2012, then from 60 mg to 90 mg in September and from 90 mg
to 120 mg in November 2012.
[52]
At the higher doses, Mr. Grewals evidence was that the depression
was still there but he started to feel better. Instead of being focused only
on his pain he began to focus on his future and career plans. His levels of
motivation and interest and energy were not at their pre-Accident level but
were better than they had been in some time.
[53]
On February 17, 2012, Mr. Grewal underwent arthroscopic knee
surgery with Dr. Lui. It involved shaving off rough cartilage at the
distal part of the patella as well as cutting away a torn area on the meniscus.
[54]
Mr. Grewal was off work for about a month recovering from the
surgery and was not paid in that time. Mr. Grewal continued to do home
exercises for his knee as instructed by Dr. Lui and he believes that he
had recovered from the surgery by summer of 2012.
[55]
Mr. Grewals evidence is that the symptoms in his right knee did
improve following the surgery but it was not a drastic improvement and not a
complete recovery. His evidence was that the symptoms were the same and were
triggered by the same types of activities but that the pain levels had
decreased.
[56]
Dr. Lui followed Mr. Grewals progress after surgery seeing
him on three more occasions that year. He noted that the surgery was free of
complications but opined that Mr. Grewal would continue to have symptoms
and would likely have continued difficulty with function such as squatting,
kneeling and climbing. He also noted that the reduction of the meniscus
rendered Mr. Grewal more vulnerable to a further tear than he otherwise
would have been and put him at increased risk of osteoarthritic degeneration
requiring a full knee replacement.
[57]
By the end of 2012 there had been little to no progress with Mr. Grewals
other musculoskeletal symptoms. With improvement to the knee, Mr. Grewals
right shoulder was now his most painful area, followed by continuing pain in
his right wrist and right ankle and, to a lesser extent, his neck and lower
back.
[58]
Through 2012, Mr. Grewal continued to take Tylenol 3 and Diclofenac
for pain and inflammation. He continued to take Clonazepam for sleep
difficulties as well.
[59]
After Mr. Grewal recovered from his knee surgery in 2012, he was
able to increase the length of his walks which had become his only regular
exercise. He walks usually for an hour or longer, several times per week. He
also does daily stretching for his back, neck, legs, arms, wrists, knees and
shoulders. He weight trains about twice a month. He is able to drive. His
longest drive has been about 1.5 hours. He continues to assist in the kitchen;
however chopping and peeling vegetables, stirring, washing dishes and taking
things in and out of the oven cause him pain in his wrist and shoulders. He
has back, right shoulder pain when vacuuming. He is unable to do the entire
house at one time compared to the past. Yardwork such as mowing the lawn,
sweeping and shovelling cause him difficulties in his shoulders.
[60]
Mr. Grewal also says experiences pain in his back, shoulders and
knees with daily activities such as brushing his teeth, shaving, washing hands,
sitting at a computer and reading.
[61]
Mr. Grewal says the things that cause him difficulties today relate
predominantly with pain in his right shoulder. He says that he has full to
almost full range of motion but at certain positions he has pain at the front
of his shoulder joint such that he has limited duration of extending his right
arm out, such as driving or vacuuming. He has to take breaks in order to do
these things. He has never tried to use his left arm for things as an
alternative.
[62]
In May 2013, Mr. Grewal enrolled in an online Canadian
Securities course provided by the Canadian Securities Institute. His goal was
to become a financial advisor. He stated that his interest in this area was to
assist the many people who needed help in financial planning. His intention is
to provide a service which protected peoples investments through ethical
advice and service. He stated that he had been planning to enroll in the
program for some time. He passed the required two exams with good marks, 77%
and 82%, a passing grade is 60%. His second exam was in March 2014. As a
result he now holds a certificate of completion which allows him to sell mutual
funds in Canada. Immediately following this he started studying a second
course, Investment Management Techniques. He hopes to complete the course in a
few months. Following this he intends to take a portfolio management
techniques course. Thereafter he hopes to attain the designation of a
chartered investment manager.
[63]
In June 2013, United became insolvent and shut down. As a result, Mr. Grewal
lost his job. The shut down and loss of work came without warning and
abruptly. He learned of his job loss when he arrived at his work location and
was told by a security guard from another company on shift there that United
had been replaced. Upon visiting Uniteds office the next day he found it
locked with a notice of bankruptcy on the window.
[64]
Since then he has not worked but has continued with his Canadian
Securities Institute studies.
[65]
It has been about 16 months to trial since Mr. Grewal last worked.
[66]
In terms of seeking out employment, Mr. Grewal stated that he
intends to apply for an entry level job in the financial industry after the end
of this trial. He stated that he had hoped to have started his search earlier
this past summer but felt too stressed by the litigation to do so and is
awaiting the end of trial.
[67]
Mr. Grewals annual gross income has been as follows:
Year | Amount |
2005 | $15,687 |
2006 | $9,103 |
2007 | $12,702 |
2008 | $17,490 |
2009 | $24,813 |
2010 | $15,259 |
2011 | $18,425 |
2012 | $17,957 |
2013 | $8,622 |
|
|
[68]
In addition to the plaintiffs testimony of his injuries and their
effects on his life, as well as his plans, the plaintiff called his father,
cousin, his uncle and a friend who testified as to their observations of the
plaintiff before and after the Accident.
[69]
Mr. Gill has known the plaintiff since high school and during that
time said that they hung out daily at school. He stated that Mr. Grewal
worked out in his home gym and that the plaintiff was in good shape and had a
fairly muscular physique. After high school they continued to have frequent
contact by phone. By 2008, contact was usually monthly and has in the last
three years reduced to three or four times a year.
[70]
Following the Accident, the two men would get together about every
month. They would get together for dinner or watch UFC televised events at a
pub. Mr. Gill noticed that Mr. Grewal would be talkative but would
then suddenly get quiet. He stated that Mr. Grewal would express his
worry about his body and knee pain. He observed Mr. Grewal getting up
from the table to stretch his arms, shoulders and legs. This carried on 2010.
He also noted that Mr. Grewal walked in the same way as pre-Accident but
now slower. He also stated that Mr. Grewal appeared to have lost muscle
around his chest and had bit more of a stomach showing.
[71]
Ms. Johal is the plaintiffs cousin. She saw the plaintiff often
during high school years. She described him as friendly and polite. She
stated that he was close to his mother and helped in the kitchen and around the
house. She stated that Mr. Grewal did not participate in sports but
worked out with weights in his home gym and was thin and in good shape. She
was not aware of Mr. Grewals depression prior to the Accident. She saw Mr. Grewal
once or twice within six months of the Accident and noted that he was walking
slower, had lower energy, and did not make tea or do dishes anymore. After six
months, she observed him sleeping most of the time and also would see him
stretching his neck, shoulders and arms. She acknowledged that his sleeping
could be related to graveyard shift work. She observed that he was now more
irritable, had lower energy than before the Accident and did not help around the
house. When she learned of Mr. Grewals depression in the summer of 2013,
she spoke to him about it and shared with him her own experience with it.
[72]
Mr. Mahal is the plaintiffs uncle. Prior to the Accident, he
spoke of the walks he would take with the plaintiff of about two times a month
of approximately 1 to 1.5 hours, that he observed the plaintiff working
out in his basement, that the plaintiff was pretty cheerful, that he helped in
food preparation, cooking, vacuuming and doing yard work. He also testified
that the plaintiff spoke of returning to school mentioning criminology and
teaching but that the plaintiff was uncertain about what his plans were.
Following the Accident, Mr. Mahal testified to hearing the plaintiff
complaining about his knee and observing the plaintiff stretching his legs and
arms and rubbing his knee regularly. The two would still walk regularly but
the duration has lessened to 20 to 30 minutes. Mr. Mahal has also noticed
that Mr. Grewal facially appears mostly sad now and has less energy.
However, he noted that Mr. Grewal seemed interested in his computer
studies.
[73]
Mr. Avtar Grewal is the plaintiffs father. He is truck driver.
He spoke of noticing changes in the plaintiffs mood in about Grade 11.
He stated that after high school the plaintiff appeared to be fine and happy.
He stated that prior to the Accident the plaintiff assisted with cooking,
washing dishes, cleaning and vacuuming the house, cutting the lawn and keeping
the yard tidy. He would also assist his mother in her seamstress business by
folding garments and putting them in bags. Mr. Grewal also stated that
the plaintiff spoke of his son thinking of going back to school, and the
mention of studying criminology as well as becoming a teacher or police
officer. He spoke of the plaintiffs frequent and regular weight training and
runs prior to the Accident and the changes after it. He spoke of the
plaintiffs constant pain, his stretching, live rubbing of his knee, his
irritable mood, lack of energy, no ability to work out, absence of running,
trouble with walking up the stairs, inability to mow the lawn, infrequent
assistance in the kitchen, and limited vacuuming after the Accident. He stated
that his son studies at his computer 4 to 5 hours a day, five times a week. Mr. Grewal
and his wife went to India in 2006, 2009, and 2013. They left for two months each
time.
IV.
Medical Evidence
A.
Dr. Hershler
[74]
Dr. Hershler provided a report dated January 5, 2012 and an
addendum report dated May 20, 2014. Dr. Hershler saw the plaintiff
on January 5, 2012 and May 12, 2014. He opined that Mr. Grewal
had suffered fractures to his 10th, 11th and 12th
ribs on the right rib cage and renal contusion. He also found soft tissue
injuries due to the Accident at the insertion of the right bicipital tendon to
the right shoulder capsule and in the soft tissue of the right wrist. He also
found pain affecting the lateral joint space of the right knee and the lateral
aspect of the patellofemoral joint. At the January 5, 2012 assessment, he
found that the plaintiff was limited in full sustained squatting by pain that
started to develop in the right knee. Dr. Hershler also wrote that:
Movements of the lumbar spine,
and neck, were fluid, pain free and attained full range. He did not complain
of any particular pain during these movements, except for mild tightness which
was evident in neck movement and low back movements.
[75]
Dr. Hershler testified that there were no complaints of pain in the
neck and back areas. He found a mild reduction in right hand grip. He also
found some tightness in the muscles of the neck, shoulders and low back. Dr. Hershler
found no evidence of radiculopathy or neuropathy. He was of the opinion that
the plaintiff had likely developed chronic soft tissue pain. He opined that Mr. Grewals
symptoms were caused by the Accident. Mr. Grewals neck, back, shoulder,
wrist, and ankle symptoms, being in existence for seven years at this point are
chronic, are extremely likely to be permanent, and will not resolve of their
own accord over time.
[76]
Dr. Hershler in his second report noted that Mr. Grewal stated
to him that following his knee surgery that he noticed an improvement in his
right knee, but not completely and that he was able to sit, stand and walk
indefinitely, but had difficulty with driving. After thirty minutes of using
the right foot (on the brake pedal or accelerator), he begins to experience
pain diffusely over the knee cap (patella). Dr. Hershler found
improvement in the plaintiffs condition from the first assessment. By example
he reported that Mr. Grewal was able to squat fully and did not complain
of pain in the right knee revealed full range of motion, with no evidence of
effusion or discolouration. However, downward pressure on the patellofemoral
joint and pressure at the insertion of the patella to the tendon caused the
plaintiff to indicate pain. The plaintiff was similarly tender with pressure
into the anterior region of the right shoulder capsule. He had regained
strength in the right handgrip compared to the previous finding. He had full
shoulder movements and there was no pain response to palpation of soft tissues
in the right wrist. Dr. Hershler recommended a referral to a vocational
counsellor, three sessions; an activity based rehabilitation program; and a
trial of anti-inflammatory gel for six weeks with a review.
B.
Dr. Mallavarapu
[77]
Dr. Mallavarapu is the plaintiffs treating psychiatrist and saw
the plaintiff on October 27, 2011; May 9, 2012; September 4, 2012;
November 14, 2012; February 19, 2013; May 6, 2013; July 30,
2013; December 5, 2013; March 17, 2014; May 22, 2014; and August 21,
2014. He wrote two reports dated December 10, 2012 and August 11,
2014.
[78]
Dr. Mallavarapu opined that when he first saw Mr. Grewal he
diagnosed him with a major depression disorder and that it was associated with
the trauma of the Accident. With further treatment overtime he found that the
major depression had gradually improved, was in remission by December 5,
2013 and that Mr. Grewal had returned to a stable happy mental state and
that the next stage was to begin reducing the level of Cymbalta prescribed and
hopefully eliminating its use completely. The period of remission, except on
one occasion, had been for a period of 1.5 years to August 2014 (his
last visit with the plaintiff). Dr. Mallavarapu testified that this was a
positive prognosticator. However, he opined that Mr. Grewal is at greater
risk to suffer a recurrence of symptoms of anxiety and depression when compared
to the general population who did not suffer from major depressive disorder and
chronic pain disorder as a result of a motor vehicle accident.
C.
Dr. Gouws
[79]
Dr. Gouws, an occupational physician, assessed Mr. Grewal on
June 11, 2013.
[80]
Findings from his physical examination based on his report and testimony
included:
(a)
sensory systems: no functional limitation
(b)
cardiorespiratory: no functional limitation
(c)
Chest: no functional limitation
(d)
cervical spine: neck movements were somewhat guarded but was in the
functional range of motion. Neck flexion was to 40°. Extension was to 45°. Lateral flexion was 35° bilaterally. Rotation was 70° bilaterally. There was tenderness
on palpation of the right nuchal strap and into the superior border of the
right trapezius muscle. He had mild tenderness over the base of the scalene
muscle on the right.
(e)
Shoulders: he had a full
range of motion of both shoulders. His shoulders were symmetrical and he was
able to shrug his shoulders equally. There was no functional limitation.
(f)
Upper arms: Upper arm
girths were symmetrical. There was no functional limitation.
(g)
Wrists and hands: Maximum grip strength was 42 KgF on the left and
36 KgF on the right. Mr. Grewal demonstrated weaker hand grip
strength compared to population norms of 50.1 KgF on the left and 55.2 KgF
on the right. He has essentially normal ulnar and radial deviation and normal
wrist extension and flexion.
(h)
Back – thoracic/lumbar/sacral: Mr. Grewal stands with a level
pelvis. He has normal thoracic and lumbar curves. Back flexion brought his
fingertips to 3 inches from the floor with normal segmental excursion on Modified
Schobers Test. Lateral flexion brought his fingertips to the upper pole of
the patellae bilaterally. Extension was to 15° with no complaints of pain.
Straight leg raising was 70° bilaterally. Femoral stretch test was negative.
(i)
Hips: Hip flexion was to about 135° bilaterally. Hip extension was 25°
bilaterally. Hip external rotation was 40° bilaterally. Hip internal rotation
was 15° bilaterally. Sacroiliac joint stress testing was negative. There was
good strength against resistance of the hip movements in all axes. There was
no functional limitation.
(j)
Legs and knees: Knee flexion was full bilaterally. Knee extension was
zero degrees bilaterally. Mid thigh girths and mid calf girths were
symmetrical. There was no wasting of the quadriceps muscles. McMurrays
testing is negative. All major ligaments were intact. He was mildly tender
over the articular surface of the right patella more on the lateral aspect and
medially. Patellar Test was negative. Mr. Grewal was able to squat, rise
from a squat and duck walk.
(k)
Ankles and feet: He was able to toe raise and heel walk. Heel to toe
walk was normal. There were no abnormalities of the feet. There was no
functional limitation.
(l)
Central and peripheral nervous system: Deep tendon reflexes were
normal. There was no impairment of tone, power or feeling. Romberg testing
was normal. There was no functional limitation.
[81]
His opinion by this stage was that:
(a)
The Accident had left Mr. Grewal with much reduced occupational options
and opportunities and he was not as competitively employable as he otherwise
would have been;
(b)
Mr. Grewal would never be suited to work requiring heavier strength
demands or sustained and repetitive crouching and stooping;
(c)
Mr. Grewal was confined to light strength work with occasional low
medium strength demands; and that
(d)
Given the chronicity of his symptoms to that point, Dr. Gouws was
of the view that Mr. Grewal would not return to his pre-Accident level of
function.
[82]
Dr. Gouws opined as well that:
Mr. Grewal continues to have
a functional impairment as a result of his chronic pain condition and
associated emotional comorbidities. It is my opinion that he does have room
for improvement of his physical abilities with aggressive management of his
pain condition and physical rehabilitation. His relatively young age will
hopefully also allow him to improve his strength and endurance over time,
pursue more suitable career options and is considered a positive prognostic
factor. His ongoing physical impairment and the extent and chronicity of his
symptoms are poor prognostic factors for a recovery to the point where he will
be able to return to his pre-accident level of function.
[83]
Dr. Gouws saw the plaintiff only two weeks after his knee surgery.
He also was not aware the plaintiff had obtained his high school diploma.
[84]
In cross examination, Dr. Gouws agreed that his impression of the
employability and chronic pain of Mr. Grewal would change if he understood
that his depression had gone into remission on a sustained basis. His view was
that employability would improve as would the chronic pain. He also agreed
that his view of employability opinion would be more positive had he known that
Mr. Grewal had obtained high school graduation diploma as well as his successful
completion of two securities courses.
D.
Dr. Lui
[85]
Dr. Lui was Mr. Grewals treating orthopedic surgeon for his
right knee. Mr. Grewal had been referred to him by his family physician, Dr. Singh.
He acknowledged in his video deposition that his comments in his report are in
relation specifically to the plaintiffs right knee. Dr. Lui opined that Mr. Grewal
suffered direct injuries of his right knee which is the main intra articular
damage to his joints. His disability was related to and is the result of the
MVA impact, with damage to the patellofemoral joint as well as the medial
meniscus with a tear of the anterior horn with extension to the body of the
meniscus.
[86]
Dr. Lui treated Mr. Grewal for his knees. Initially, Dr. Lui
recommended a strengthening exercise program as well as analgesics for pain.
In July 2010 because of unresolved knee pain, he started hyaluronic acid
injections but this led to only short term relief. Because of the continued
complaint of pain in the right knee Dr. Lui recommended arthroscopic
surgery to determine the cause. He performed arthroscopic surgery in February 17,
2012. Unlike the finding in an MRI report that had been ordered by the
plaintiffs family physician; Dr. Lui found a meniscus tear and repaired it.
He found also chondromalacia patella. He opined that the cause of these
injuries was the Accident. Following the surgery Dr. Lui reported that Mr. Grewal
told him that there was improvement in the knee less pain, more mobility and
function of the joint.
[87]
In terms of the future regarding the plaintiffs right knee Dr. Lui,
he opined:
The damage being intra articular
in nature, would likely progress in time and can cause osteoarthritis in the
end, more likely than not. The meniscal tear, although it was treated at this
time, has rendered the meniscus weak and exposing it for further tearing in the
future for which the patient might require further surgery. The risk of this
occurring is greater than an uninjured knee. With losing the cushioning effect
of the meniscus, the knee would therefore be exposed to the possibility
increasing osteoarthritis to require knee replacement surgery a lot sooner than
normally anticipated without any incident. A knee replacement surgery would
imply an open surgery by removing part of the knee and replacing it with
artificial parts.
[88]
In cross-examination Dr. Lui stated that the risk of requiring a
knee replacement in the case of Mr. Grewal was only slightly more than a
person who had not suffered a tear as the plaintiff.
E.
Dr. M. Boyle
[89]
Dr. Boyle is an orthopedic surgeon who has been retired from active
practice since 2009. Since then he only performs medical-legal examinations and
then exclusively for I.C.B.C. He performs so many of these examinations that
he is unable to estimate how many. He examined Mr. Grewal at the
Defendants request on August 13, 2013.
[90]
In terms of Mr. Grewals upper body, Dr. Boyle diagnosed mild
soft tissue strains to the cervical and lumbar spine areas which he ranked as
grade 1. In cross examination he explained that grade 1 simply
denoted no elongation or tearing of the ligaments surrounding the vertebrae in
these areas.
[91]
Dr. Boyle further explained that this grading system was based of
the degree of stretching of ligaments and was geared at determining how much
spinal stability remained following the trauma. It is submitted that this is a
very narrow criteria for diagnosing a soft tissue injury.
[92]
With respect to the other longstanding upper body symptoms Mr. Grewal
reported having experienced since the Accident (right shoulder, right wrist) Dr. Boyle
diagnosed no injury because, as he explained, he could not identify any organic
findings or objective evidence to support them. Interestingly, he did find
tenderness at the right shoulder in the same place Dr. Hershler found on
both of his assessments and did note tenderness to palpation at the dorsoradial
border in Mr. Grewals wrist. Dr. Boyle also neglected to consider
the post-Accident examination findings of Dr. Singh and Mr. Grewals
physiotherapist, each of whom noted loss of strength and reduced range of
motion in the months immediately following the Accident.
[93]
Dr. Boyle agreed that as an orthopedic specialist he was not
qualified to evaluate or comment on the mechanism of soft tissue pain described
by Dr. Hershler as central sensitization. He did admit, however, that
pain can persist after soft tissues have healed and even in the complete
absence of examination findings.
[94]
Dr. Boyle also admitted, in the face of his prognosis that the neck
and back strains he found would likely resolve completely, that if a person has
suffered from soft tissue pain for 7 years, resolution is not going to
happen.
[95]
Regarding Mr. Grewals right knee, Dr. Boyle gave an opinion
that the condition of Mr. Grewals patellofemoral joint was degenerative
and that the degeneration within that joint was likely to spread within that
joint, in that the cartilage will continue to break down over time. He also agreed
that to the extent that the condition of Mr. Grewals knee affected his
ability to squat, climb, stand and walk, those functions would further diminish
as the degenerative process progressed over time.
F.
Dr. K. Singh
[96]
Dr. Singh is the plaintiffs family physician. She has been his
physician since 1989 though she has his medical records that date back to March 1981.
She reported that he has a significant history of depression and was diagnosed
with major depression on February 12, 2000 at the age of 19. She noted
that he had told her that he had been depressed for the past five years. He
was referred then to a psychiatrist who saw him on a regular basis and prescribed
an antidepressant. Dr. Singh reported that to the best of her knowledge Mr. Grewal
had been in in remission for his major depression for more than five years at
the time of the Accident.
[97]
Dr. Singh did not disagree with anything contained in the
medical-legal report of Dr. Lui and deferred to his prognosis. Dr. Singh
agreed with the conclusions of Dr. Mallavarapu. She agreed with his
opinion that Mr. Grewal had reached a plateau and with the prognosis is
guarded as the plaintiff continues to be depressed after more than six years
from the date of the accident. She has referred Mr. Grewal to a pain
clinic is awaiting an appointment.
[98]
She reviewed the functional capacity report of Ms. Craig and the
reports of Dr. Gouws and Dr. Hershler. She opined that Mr. Grewals
job choices are limited by his lack of education and skills as he had yet to
complete Grade 12. Mr. Grewal is certainly capable of doing jobs
similar to those that he has held in the past since leaving high school. Mr. Grewals
job choices will be limited by his ongoing knee pain. He should avoid jobs
that require prolonged standing (more than two hours), or repeated crouching
and stair climbing. He is able to drive for 30-45 minutes at a time. Mr. Grewal
should be able to handle jobs with light to moderate physical demands.
V.
Functional Capacity Evaluation
[99]
Ms. Craig conducted a functional capacity evaluation on
June 3, 2013.
[100] She reported
that Mr. Grewal would not tolerate occupations with repetitive bending
(for instance, getting in and out of cars repeatedly), repetitive
reaching/gripping, or heavier physical demands. In respect to work as a
static security guard, the concern is that the cumulative effect of working
daily on a full time basis may cause symptom aggravation, sufficient to require
time off to manage symptoms. In respect to his move to the area of finance
and a sedentary role, Ms. Craig commented that he will have to manage
lumbar stiffness and pain with proper ergonomic set up and with
breaking/stretching at regular intervals.
[101] Ms. Craig
found that Mr. Grewal demonstrates limitations to his knee, low back and
upper left arm that reduce his options to work at more physically demanding
jobs. Sedentary occupations will need to be accommodated with frequent
positional and task changes, regular stretching and with proper ergonomics to
reduce lumbar stiffness and symptom aggravation. As such, the scope of
occupations once viable from a physical perspective for Mr. Grewal, is now
significantly reduced leaving him with reduced competitive employability.
[102]
Ms. Craig listed Mr. Grewals limitations/abilities as
follows:
·
the capacity for light and some medium physical strength demands.
·
right knee symptoms increase with lifting/lowering to lower
levels (waist to floor);
·
limited for crouching and kneeling due to right knee symptom
aggravation;
·
right knee is bothered by single leg stance (balancing) on the
right and with stair climbing;
·
increase in right knee symptoms when starting to walk;
·
low back symptom increase with stooping and sustained sitting;
·
limited for repetitive gripping and handling/twisting with right
hand due to symptom increase including longer periods of writing;
·
limited for upper level reaching due to symptom increase in right
shoulder;
·
right shoulder pain is increased with work intensive sitting and
completing paper work;
·
increased right shoulder pain increase with forceful pushing,
carrying and lifting at upper levels;
·
loss of speed of movement of low back and right knee,
asymmetrical movement, reduced fluidity/smoothness of movement of low back and
right knee, reduced strength and endurance.
[103] Ms. Craig
reported that Mr. Grewal in a self-report of abilities and limitations described
himself as severely limited in kneeling down, crouching down, jogging or
running.
[104]
She opined that:
Mr. Grewal is faced with ongoing physical challenges, which
are not expected to significantly improve as based on the medical information
provided. Further treatment is suggested to at least maintain or prevent
deterioration in Mr. Grewals condition. The goal of further treatment is
to maximize residual function but I do not expect significant functional gains to
occur. He has participated in a course of physiotherapy but has not had
specific treatment of his right knee. He reports the only treatment for his
shoulder was IMS. He continues to be quite stiff in the low back. Further
manual treatment to the low back is suggested to improve lumbar mobility
(approximately 12-15 treatments). HE may also benefit from treatment and rehabilitation
to the right knee using the McConnell approach which targets the
patella-femoral joint using taping and muscle retraining techniques
(approximately 12-15 treatments). An individualized rehabilitation program
guided by a physiotherapist is suggested after pursuing the above treatment to
maximize/maintain strength and functional capacity as follows:
·
4-6 weeks individualized program;
·
2-3 days per week;
·
2-3 hours per day.
It is recommended that the rehabilitation program address
muscular strength, endurance, flexibility and aerobic fitness.
***
Mr. Grewal is independent with activities of self-care.
Mr. Grewal does not require home help for regular
household cleaning at present. Mr. Grewal currently resides in his
parents home with little responsibility for household chores/tasks. Should
this situation change and he is required to help at home, he will need to pace
himself or perform aggravating tasks for short intervals at a time thus
extending the time to complete tasks. Should he elect to live on his own or
start his own family, he may have difficulty with repetitive bending/reaching
cleaning tasks, leading him to require regular outside help to maintain his own
home (mopping, sweeping, cleaning bathroom, vacuuming).
Again, Mr. Grewal does not
have responsibilities in the yard or garden at present. Should Mr. Grewal
move away from the family home he will require assistance for seasonal cleaning
(approximately 10-15 hours per year). Mr. Grewal will require assistance
for heavier or very repetitive garden and yard care.
VI.
Vocational Assessment
[105] Dr. Powers
conducted vocational testing of the plaintiff on September 16, 2013 and
provided an assessment on the employability of Mr. Grewal. His report is
dated September 30, 2013. Dr. Powers opined that the plaintiffs
unresolved medical issues following the Accident have rendered him unfit for
the physical demands as a security guard, or other similar employment in the
fields of security and law enforcement, such as police officer and private investigator,
two occupations identified by Mr. Grewal on the career interest inventory
administered as part of the assessment. Dr. Powers concluded that the
plaintiff was not employable at a competitive or sustainable level as a mobile security
guard and nor as a stationary security guard.
[106] Dr. Powers
also opined that a substantial number of alternative occupations were also now
closed to Mr. Grewal given his unresolved medical condition. The employment
options open to Mr. Grewal were from a vocational capacity viewpoint were predominantly
light work strength demand occupations. Dr. Powers stated that to access
lighter work strength demand careers, educational upgrading is needed in order
for Mr. Grewal to attain the hiring requirements of careers in this
category. Dr. Powers identified the careers included legal assistant,
addictions counsellor, and securities analyst. Retraining for a suitable
career/occupation was advised. Dr. Powers stated that Mr. Grewal
would benefit with vocational counseling services to assist in identifying
alternative careers suitable to his medical condition and in determining
pre-hire educational requirements. He further said that Mr. Grewal would
benefit with vocational rehabilitation services which typically includes mining
employment leads with potential employers, assisting with interviews, as well
as negotiating with employers and providing education, monitoring and mentoring
at the work site to assist with ergonomics and other concerns.
[107] Dr. Powers
testified that Mr. Grewal had the academic ability and physical capability
to work as a financial analyst or a bank employee.
VII.
Economic Evidence
[108] Two
reports authored by Mr. Carson were entered by the plaintiff. The first
provided evidence with respect to the quantification of future care costs.
[109]
The second report addressed the quantification of past and future income
loss. Assumptions were provided by counsel. The economic scenarios he was
requested to produce were as follows:
1. Future
Scenario 1: Mr. Grewal would have worked with earnings equal to the
averages of earnings among high school graduates;
2. Future
Scenario 2: Mr. Grewal would have worked with earnings equal to the
average of police force members to retirement;
3. Future
Scenario 3: Mr. Grewal would have earned as much as the average post
secondary certificate or diploma holder.
With regard to his with-accident
earnings, Mr. Grewal is currently finishing courses related to his goal to
work as chartered investment advisor, I have produced an earnings projection,
in Table 3, in which it is assumed that Mr. Grewal will return to
the paid labour force in 2014, at about the time of the trial date. The
earnings values in Table 3 are based on level of educational attainment
(college diploma, more than one year) and not on occupational earnings. I
comment on employment and earnings information in occupations related to
investment and financial management in Section 2.3.
[110] Mr. Carsons
estimates of the above scenarios are summarized in a table in his report
reproduced below:
Table
A
Estimates of Past and Present Values of Future Wages and Benefits
Source Table | Full Time Full Year Earnings | Earnings Net of Contingencies | Net Plus 10% or 15% for Benefits |
(1) | (2) | (3) | (4) |
Table 1 – High School Graduation Certificates or Equivalents | |||
Sum | $210,376 | $181,534 | $199,700 |
Present | $1,697,953 | $1,243,582 | $1,367,900 |
|
|
|
|
Table 2 – Police Officers |
|
|
|
Sum | $357,422 | $327,303 | $370,300 |
Present | $2,501,177 | $2,017,836 | $2,313,800 |
|
|
|
|
Table 3 – College Program of 1 to 2 years, Completed by Mid 2014 | |||
Sum of past: | $157,278 | $135,112 | $148,600 |
Present | $1,733,111 | $1,248,880 | $1,373,800 |
|
|
|
|
Table 4 – College | |||
Present | $1,528,881 | 1,070,907 | $1,178,000 |
Note: | |||
|
|
|
|
[111] Mr. Carson
also discussed earnings for individuals in the financial advisory area. He
noted the difficulties with the data in that there is an unusual distribution
of earnings for occupations in the area.
[112] Mr. Hildebrand
wrote two reports in response to Mr. Carsons reports which deal with the
cost of future care and past and future income loss.
[113] Mr. Hildebrands
report sets out projected earnings tables that line up with the various
scenarios in Mr. Carsons report. The results for reasons set out in the
report are lower.
[114] His report
also contains projected earnings tables for occupations in the financial
industry.
VIII.
Discussion
A.
Findings on Injuries
[115] The key
issue, as argued by the plaintiff, is whether the pain from the plaintiffs
injuries suffered in the Accident will ever resolve and may even worsen; or
whether as submitted by the defendants that the plaintiffs complaints of
continued pain in his neck, lower back, right shoulder, right wrist, right knee
and right ankle, along with psychological complaints in the form of depression
are minor, have largely resolved, and are exaggerated or have little effect on
his ongoing vocation or avocational capabilities
[116] The
defendants arguments include: the late appearance of Mr. Grewal in his
case as opposed to being the first witness. The defence points to the fact
that most of the lay and expert evidence in the plaintiffs case was called
before the plaintiff took the stand. In the context of a case substantially
focused on soft tissue, the defence argued that the plaintiffs credibility,
the weight of his evidence and the medical should be considered with the
caution expressed by Madam Justice Humphries in Yeung v. Dowbiggin, 2012
BCSC 206 and by Mr. Justice McEwan in Charles v. Dudley, 2012
BCSC 1301.
[117] I agree
with the general view that a plaintiff should be called if not first then early
on in the case. In this case, the fact that a substantial part of the
plaintiffs case including cross-examination of his witnesses had occurred
before his appearance created some difficulty on my part in considering the
evidence in context and raised in my mind questions as to whether there were
difficulties with the plaintiffs own evidence thus requiring his late
appearance. I note however the defence did not in any significant way confront
the plaintiff on credibility. I have kept all of the foregoing in mind in my
analysis of the case.
[118] I am also
mindful of the general approach that in the absence of objective evidence of
continuing injury when complaints of pain persist for long periods extending
beyond the normal or usual recovery, the court should be exceedingly careful:
Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.) at 399. Though there
has been significant focus in medicine and a greater understanding on chronic
pain since that decision, the caution as identified in that case remains
applicable. There are no objective measures to prove the complaints or the
degree of the pain they are subjective. Each case is to be determined on its
own specific the facts and circumstances.
[119] In
considering the evidence of the observations of the plaintiff by Mr. Horne,
Mr. Grewal (his father), Mr. Mahal, Ms. Johal and Mr. Gill,
spoke of the difficulties the plaintiff had with pain, his need to stretch, his
emotional state, limitation in activities; however, this evidence requires
assessment against such things as the observations and findings of the experts,
the frequency and the time period the observations were made, the occasions
when the observation was made and the degree of sympathy of the witnesses
towards the plaintiff. In certain aspects, the witnesses observations of
limitations were greater than what the plaintiff stated them to be. In such
circumstances, I accept that the plaintiffs own evidence.
[120]
My findings of the injuries suffered by the plaintiff from the Accident
are:
(a)
three fractured ribs two of which were comminuted, and internal injuries
which physically healed by January 2008;
(b)
chondromalacia patella and a small tear to the anterior horn of medial
meniscus; which was repaired by surgery; there is some risk of arthritic
degeneration but only slightly greater than the general population. The range
of motion in his right knee has always been normal; though at times there has
been the presence of fluid buildup which has never been assessed as more than
minimal.
(c)
soft tissue injuries to neck, right shoulder, lower back, right wrist
and right ankle.
(d)
chronic pain. While I find that there is chronicity to some of Mr. Grewals
reported pain. I find that the pain is at the low end of the range.
(e)
the recurrence of a major depression which is now in remission. Mr. Grewal
had a pre-Accident history of depression, including major depression and that
the Accident caused him to experience significant depression and anxiety. The
Accident related depression arose in around June 2009 and became a major
depression in April 2011, gradual improvement was occurring which by
February 2013 no depression was detected and was deemed to be in remission
by December 2013 where Mr. Grewal was found to be in a happy stable
state. Mr. Grewals sleep was said to be good by September 2012.
He has remained in remission since and that reducing his medications is a
potential. Mr. Grewal however is at higher risk to suffer from recurrence
of anxiety and depression as a result of the Accident.
[121] Notwithstanding
his injuries and chronic pain, the evidence establishes that he has full range
of motion in his right shoulder; he has had full range of motion in his lower
back since January 2008; he also has full function of this lower back; and
he can stand and walk indefinitely. He is pain-free in neck and lower back
with full range of motion. He also has full knee function, can squat and duck
walk. He also has full function in his wrist.
[122] Mr. Grewal
is able to drive a car, mow the lawn, climb and descend stairs (his main
complaint is that he has trouble with going up stairs but not down), prepare
meals, and sit. The difficulty he has with some of these activities is that he
cannot do some of them for a prolonged period of time and needs at times to
take a break to rest. He also needs to get up and do stretches for relief. I
do not find that this pain to be as debilitating as submitted by the plaintiff
and his limitations are not as great as submitted and is stabilized by
medication. I say this recognizing that chronic pain can continue past the physical
recovery of an injury.
[123] I accept
the medical evidence that Mr. Grewal as at trial was physically
deconditioned with a low aerobic fitness level; that his maximum physical
rehabilitation has not been reached; that this can be improved with
rehabilitation and exercise and that by doing so his chronic pain can be
decreased. I find that with physical rehabilitation and cognitive behavioural
therapy, his chronic pain condition can be improved, that his physical
limitations can be improved, and that he will be physically capable of performing
some medium strength demand jobs and will not be limited to just lighter work
with occasional mid-range strength demands.
[124] I accept Dr. Luis
opinion that there is an increased possibility of osteoarthritis and knee
replacement surgery sooner than normally anticipated without any incident but
that the risk is only slightly more than a person who had not suffered a
tear.
[125] I do not
find that the plaintiffs condition is so debilitating as to reduce his ability
to succeed in his chosen career in financial planning.
B.
General Damages
[126] Assessments
under this head are guided by many factors. A non-exhaustive listing of
factors to considerations was listed in Stapley v. Hejslet, 2006 BCCA
34:
·
age of the plaintiff;
·
nature of the injury;
·
severity and duration of pain;
·
disability;
·
emotional suffering;
·
impairment of life;
·
impairment of family, marital and social relationships;
·
impairment of physical and mental abilities;
·
loss of lifestyle; and
·
the plaintiff’s stoicism (as a factor that should not, generally
speaking, penalize the plaintiff: Giang v. Clayton, 2005 BCCA 54).
[127] The
plaintiff submits that given Mr. Grewals relative young age (26 years old
at the time of the Accident), the prognoses which in effect provide that his
pain will almost certainly never resolve and may very well worsen in the years
to come (at least in terms of Mr. Grewals knee); the long past and
projected future battles with depression; and the fact that pain and limitation
have detrimentally affected virtually all aspects of his life, from recreation,
to work, to housekeeping, to even his sleep, $120,000 – $150,000 would
constitute an appropriate award with respect to the plaintiffs non-pecuniary
damages.
[128] The
plaintiff cites the following cases as guides in assessing damages under this
head: Bruno v. Diamzon, 2014 BCSC 1270; Morena v. Dhillon,
2014 BCSC 141; Cook v. Symons, 2014 BCSC 1781; Khosa v.
Kalamatimaleki, 2014 BCSC 2060; and Cumpf v. Barbuta, 2014 BCSC 1898.
[129] In these
cases all of the plaintiffs suffered from constant pain and depression
as a result of motor vehicle accidents. These ailments were found to impact on
almost all aspects of the plaintiffs lives. In Khosa, Saunders J.
awarded $140,000 in non-pecuniary damages emphasizing that while the plaintiff
was likely to make an eventual recovery there was a distinct possibility that
symptoms would persist indefinitely. The long-term poor prognosis of full
recovery was also a significant factor in Morena justifying a
non-pecuniary award of $130,000. In Cook, the plaintiff was awarded
$140,000 for non-pecuniary general damages; as with Mr. Grewal, the
plaintiff in Cook suffered a serious knee injury that required surgery
as well as a significant depressive disorder.
[130] The
defendant submits that an appropriate award for non-pecuniary damages is
$55,000. The defendant cites the following cases as guides in assessing
damages under this head: Hillman v. Esaryk, 2014 BCSC 170; Grudzien
v. Hu, 2013 BCSC 720; Yip v. Saran, 2014 BCSC 1283;
Cabrera v. Sandhu, 2009 BCSC 1321; and Daitol v. Chan,
2012 BCSC 209.
[131] In Hillman,
the Court found that the plaintiffs soft tissue injuries were not
particularly troubling, there was also a question of whether knee surgery was
even medically necessary. In Grudzien, the plaintiff had a very low
amount of chronic pain in his lower back, although the Court did find that this
was likely to persist indefinitely. In Yip, the plaintiff suffered mild
soft tissue injuries and there were emotional and psychological problems associated
with the accident but these had been effectively treated. In both Cabrera
and Daitol, the plaintiffs suffered from serious knee injuries with
persistent pain after the accident. All of these cases awarded non-pecuniary
damages in the $40,000-$60,000 range. There are some similarities between the
injuries in these cases and those sustained by Mr. Grewal. However, in
none of these cases is there a plaintiff who has suffered from the confluence
of a significant knee injury, chronic pain and depression.
[132] Based on
my findings of Mr. Grewals injuries from the Accident including the likelihood
of future effects, my view is that the defence cases cover injuries which are
not as extensive as the plaintiffs and that the injuries approximate closer to
the cases handed up by the plaintiff. However, his depression continued for
some time before going into remission; the knee injury and resulting surgery,
and ongoing chronic pain (though at the low end) are factors which require added
recognition.
[133] I assess
damages at $110,000.
IX.
Diminished Earning Capacity – Past and Present
[134] The
essential purpose of an award for past loss of opportunity and diminished
earning capacity is to provide the plaintiff with full compensation for all of
his pecuniary losses, subject to rules of remoteness and mitigation: Andrews
v. Grand & Toy Alberta Ltd., (1978), 83 D.L.R. (3d) 452, [1978] 2
S.C.R. 229, [1978] 1 W.W.R. 577, 8 A.R. 182, 3 C.C.L.T. 225, 19 N.R. 50. It is
to restore, as best as is possible with a monetary award, an injured plaintiff
to the same position he or she would have been in had the negligence not
occurred. It is the difference between the plaintiffs original position just
before occurrence of the negligent act or omission, and the injured position
after and as a result of such act or omission, that comprises the plaintiffs
loss: Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 34-35.
[135] As an
initial threshold issue, the plaintiff must demonstrate both impairment to his
or her earning capacity and that, in this case, there is a real and substantial
possibility that the diminishment in earning capacity will result in a
pecuniary loss. It is not to be an exercise in the abstract though at the same
time is described in Andrews v. Grand & Toy Alberta Ltd., as gazing
deeply into the crystal ball. If established, quantification of the loss can
be by either an earnings approach or a capital asset approach: Perren v.
Lalari, 2010 BCCA 140 at para. 32.
[136]
In Brown v. Golaiy, (1985), 26 B.C.L.R. (3d) 353 (S.C.),
Finch J. as he then was stated:
The means by which the value of the lost, or impaired, asset
is to be assessed varies of course from case to case. Some of the
considerations to take into account in making that assessment include whether:
1. The plaintiff has been rendered less
capable overall from earning income from all types of employment;
2. the plaintiff is less marketable or
attractive as an employee to potential employers;
3. the plaintiff has lost the ability
to take advantage of all job opportunities which might otherwise have been open
to him, had he not been injured; and
4. The plaintiff is less valuable to
himself as a person capable of earning income in a competitive labour market.
[137] Under any
approach to assessing damages, the court is to make an assessment as opposed to
applying a mechanical mathematical or statistical exercise.
[138] Ultimately,
the court must base its decision on what is fair and reasonable in all the
circumstances: Parypa v. Wickware, 1999 BCCA 88.
[139]
The position of the plaintiff is that but for the psychological and
physical injuries that he suffered in the Accident, Mr. Grewal:
(a)
most likely would not have been forced to transition from work as a
mobile security guard to a static security guard in 2008;
(b)
most likely would not have continued working in a low-paying and
occasionally a part-time static security job until June 2013 and would
have instead transitioned to work as a police officer, or a similar class of
jobs such as a court sheriff, or at the very least would have soon either upgraded
his education and accessed jobs requiring a diploma or certificate or moved to
a job that at least would produce earnings equivalent to average earnings for a
high school graduate;
(c)
most likely would not have been affected by Uniteds bankruptcy and thereby
lost earnings since June 2013, having transitioned away from United years
prior, or alternatively, if he did stay with United until June 2013, he
would have been far more employable both at United and within a much wider
range of fields following Uniteds bankruptcy;
(d)
most likely would not have contemplated the financial advisor or
investment management fields which he now finds himself studying, and thus
would most likely would not be subjected to a strong likelihood of finding
himself unable to succeed in his chosen field, or alternatively, if he did
choose to seek employment in the financial advisor or investment management
fields, he would have tried and likely failed with this endeavour far earlier
in his career and by now would likely be settled in a suitable career.
[140] It is
submitted on behalf of Mr. Grewal that he will pursue work in the
financial advisor or investment management fields until he realizes that he is
not reasonably suited to perform the work required to accomplish his goal. At
that point, a further bout of depression is not just a foreseeable risk but,
combined with Mr. Grewals lingering symptoms, is likely to persist,
thereby requiring another course of aggressive treatment and management and
time. From there, assuming a well-managed psychological state, it is submitted
that the most likely with Accident scenario has Mr. Grewal finding work at
or near his current capacity as demonstrated through his work at United, namely
a job in security earning about $12-$15 per hour.
[141] While Mr. Grewal
acknowledges having the capacity to work as a static security guard essentially
full time, at least with accommodations that allow him to avoid overly
extensive walking or stair-climbing and at least until or unless the condition
of his right knee degenerates to such an extent that walking and standing
become much more painful, it is submitted that the evidence does not
demonstrate Mr. Grewal having the current capacity to perform much more.
[142] It is
further submitted that his knee condition can only worsen and his psychological
state is at great risk of getting worse, thereby affecting his long-term
employability significantly.
A.
Past Loss of Income Opportunity
[143] The
plaintiff submits that a reasonable range for past loss is $300,000 – $350,000.
His actual earnings from the date of the Accident at the end of 2014 is
$102,566. Thus it is between $197,434 to $247,434 (gross).
[144] Plaintiff
submits that the range in earnings represents a reasonable assessment of Mr. Grewals
potential earnings between the date of the Accident and the end of 2014. Such
an award it is argued falls a fair ways short of the potential earnings which
suppose a January 2010 transition into a position as a Sheriff/Bailiff or
a Police Officer position, but fall squarely within the potential earnings
within a conservative scenario which would have seen Mr. Grewal work at
United until sometime between 2009 and 2011 without the Accident but then, at
age 28-30, act as a rational economic worker would act and transition into a
job which would have permitted him to obtain at least average earnings of a
B.C. High School Male.
[145] The
plaintiff submits that this projects a very conservative scenario as it
essentially assumes an equal likelihood of Mr. Grewal having become a
police officer in the most optimistic but realistic scenario, and his having
simply remained as a mobile patrol officer but for the Accident, in the most
pessimistic realistic scenario.
[146] My
assessment is that the more conservative scenarios are appropriate in this
case. I find it likely based on Mr. Hornes evidence that Mr. Grewal
would have been promoted at some point to a field manager position which came
with a higher hourly rate of pay. My view is that a reasonable assessment of
his potential earnings is $310,000. After deducting his actual earnings for
the same period, the net figure is $207,434.
[147] In my
view, I do not find the lack of income for the entire period from June 14,
2013, when he lost his job as a result of the United insolvency, to the date of
trial as justified by the plaintiff. I can see based on Mr. Grewals
psychological circumstances that a period would be required to adjust to the
shock of losing his job and the manner how he learned of it; however, to not
take action to seek out employment for 1.5 years is inordinate. I do not
find persuasive his need to focus on his Canadian Securities courses. Mr. Grewal
has worked as a static security guard since his return to work despite being
diagnosed with a major depression and with chronic pain since at least
April 2011. His major depression has been at an improved state since
February 19, 2013. His depression was in remission since
December 2013, where in addition the plaintiff was said by Dr. Mallavarapu
to be mentally, in a happy and stable state. In my view, he could have found
work as a static security guard or some equivalent type work and concurrently studied
for his Canadian Securities courses. While I accept the plaintiffs argument
that it was reasonable for Mr. Grewal to continue as a static guard during
the period, I do not accept his decision not to work after Uniteds
insolvency. In my view, Mr. Grewal should have been able to earn $20,000
during that period.
[148] Accordingly,
in regard to a reasonable assessment of Mr. Grewals actual earning
capacity from the date of the Accident to the present. The amount awarded
under this head is $187,434.
X.
Loss of Future Income Capacity
[149] The
plaintiff submits that loss of future income opportunity falls in the range of
$650,000 – $750,000. This is based upon the plaintiffs submissions that on a capital
asset approach and the comparable case of Stevanovic v. Petrovic, 2011
BCSC 2, where $600,000 was awarded for diminished earning capacity to a
photocopier technician, age 30 at trial, who suffered a serious right knee
injury, chronic pain, anxiety, headaches and sleep difficulties.
[150] The
plaintiff submits that the $650,000 to $750,000 range approximates a scenario
whereby Mr. Grewal would have worked as a court sheriff to age 60 and
with average earnings for a graduate from a 3-12 month college program to age 70
but for the Accident, and instead because of the Accident has a residual
capacity to earn average earnings for a graduate of a 1-2 year college program
after a delayed entry to mid-2017. Such assessment it is submitted also
reasonably balances the negative contingencies with contingencies that would
increase Mr. Grewals assessment of diminished earning capacity, such as Mr. Grewals
potential to have been a police officer, his potential to have earned much
greater than average earnings for a certificate or diploma holder by accessing
more physically demanding and thus more remunerative unskilled and semi-skilled
work but for the Injuries, the potential because of the Accident, he will be
unable to retrain adequately and will thus be limited to essentially
entry-level positions such as work as a bank teller, cashier, or a return to
work as a static security officer, and the potential of Mr. Grewals knee
will degenerate quicker than anticipated and thereby significantly damage his
residual earning capacity in the decades to follow.
[151] The
plaintiffs evidence on economic loss did not include scenarios or projections
of income for the career in finance being pursued by Mr. Grewal. However,
Mr. Carsons report, did discuss three occupational groups in finance:
·
financial investment advisors (includes chartered financial
planners);
·
securities agents, investment dealers and brokers (includes
sellers of stock, bonds, and other securities); and
·
other financial officers (includes financial planners).
[152]
Mr. Carson reports that based on 2010 data:
(a)
the average income for males in British Columbia in the first category
was $109,408 (equivalent to $120,000 in 2014 dollars), the median value was
$89,264. In 2014 the equivalent amount according to his calculations would be
$97,906.
(b)
for the second category the average of full time full year earnings was
$134,850 (the 2014 equivalent value is $147,660) and the median was $69,926
(equivalent to $76,570).
(c)
for the third category, those with college diplomas the average full
time full year earnings was $105,520 in 2010 (the current equivalent is
$115,540) while the median was $69,971 ($76,620 in 2014).
[153]
Mr. Carson stated that:
The earnings information set out above does indicate that if
a person does become established in work related to investment and financial
management, there are chances that earnings would exceed the average amounts
earned by college graduates generally (as in Tables 3 and 4). However, in most
instances large differences between median and average earnings values indicate
that there are some in these occupations who are very successful and many who
are less so.
It will be evident from the
statistics cited above that successful entry to work in the financial
occupations could, potentially, lead to earnings well in excess of the amounts
set out in Tables 3 or 4. It is noted, as well, that averages of earnings
exceed the average amounts earned by police force members. However the
distributions of earnings tend to be positively skewed (relatively small
numbers of high earners have strongly positive effects on average earnings
values) and all earnings values refer to those who have made the transition
from training to work in financial occupations and who have established
themselves in work on a full time full year basis. Nothing can be said about
the number of people who aspire to the work, but do not either successfully
enter into the work, or find that they are unable to sustain themselves in it.
[154] Given Mr. Grewals
positive achievements to this point in his pursuit of a career as a financial
planner; his positive desire and motivation to seek such a career as I observed
at trial; that there is occupational and functional evidence that supports that
he is suited for this line of work; and that with an award for activities to manage
his chronic pain such as active rehabilitation and cognitive behavioural
therapy, his potential for success can be enhanced; I find that there is a real
and substantial possibility of the plaintiff having a successful career as a
financial planner and chartered financial planner and that this scenario is the
most likely outcome. The median income for the occupation group that includes a
financial planner was $69,971 in 2010 and would be currently $76,620. I am not
persuaded by the pessimistic outlook as set out in the plaintiffs closing submissions.
Mr. Grewals depression has been improving since approximately mid-2012.
His depression has been controlled by medication and has been in remission
since at least February 2013 in which month no depression was detected and
that he has been essentially in a happy and stable state as per Dr. Mallavarapu.
Further, his chronic pain is at the low end. It is unfortunate that Mr. Grewal
has chosen not to seek out employment even though he was able to do so since
March 2014. I did not find his explanation persuasive regarding his
stress and other reasons precluding him from seeking employment.
[155] In finding
Mr. Grewal would likely succeed in the financial planning field, there is however
a lesser but real and substantial possibility that Mr. Grewal could suffer
another bout of depression and be required to seek employment and earn income
that approximates that is lower than a financial planner. I do not accept that
he will be limited to that of a static guard as argued for by the plaintiff.
He is capable of more given my findings of his limitations. In this regard,
the support of a lesser income relies significantly on the reports that
pre-dates the remission of Mr. Grewals depression as well as his
knowledge that he had obtained his high school diploma and his qualification to
be a financial planner. My view in weighing this likelihood is that the loss
of capacity for more physical employment results in an assessment of $150,000
based on an income difference estimate of $600,000 rather than the $650,000 to
$700,000 identified by the plaintiff.
XI.
Diminished Housekeeping Capacity-Future Cost of Care for
Housekeeping Services
[156] The
plaintiff seeks $50,000 under this head of damages.
[157] Though
submissions were made in respect to past loss of housekeeping capacity and
future loss of housekeeping capacity, no amount was specified for the past
loss. The submission on past loss was that a modest award only was being
sought. The award summary as set out in the plaintiffs written submission under
this head specifies $50,000.
[158] The
plaintiff submits that there was an adjustment of duties within the family to
compensate for Mr. Grewals Accident related limitations. The plaintiff
argues that prior to the Accident, he assisted his parents with doing chores in
the kitchen such as washing dishes, putting groceries away, and assisting with
cooking and food preparation for meals; vacuuming in the house; laundry and
folding clothes; and yard work, mowing the lawn and washing cars. Following
the Accident, the plaintiff argues that he does not assist in the mentioned
tasks and when he does he is slow and inefficient and leads to flare ups of
pain.
[159] It is
future loss of capacity which is most concerning to the plaintiff. In this
regard, it is submitted that Grewal, being now 33 years old and receiving some
financial security with the award of damages in this matter, will eventually
live independent of his parents. Alternatively, with his parents aging, Mr. Grewal
will eventually be unable to take advantage of the housekeeping and yard work
assistance that his parents currently provided, even if the family continues to
live together.
[160] Though Mr. Grewal
has some limitations in cooking, housekeeping and yard activities, I find that the
limitations are not that he cannot do them; rather his endurance in these
activities are somewhat limited and thus takes more time to do them. I note
that the medical evidence is that Mr. Grewal is deconditioned and has not
reached optimal condition. This should improve with the physical
rehabilitation and cognitive behavioural therapy and perhaps by the resolution
of this litigation. In terms of cooking I have found that Mr. Grewal is
capable of preparing foods for meals and is able to cook. Mr. Grewal
cooked for himself during the extended vacations of his parents to India
post-Accident. He also testified that he predominantly eats separately from
his parents and prepares meals for himself. He also stated that he assists his
mother with cooking even when he does not eat with his parents.
[161] In the
circumstances, the claim to the date of trial is one which is better reflected
in the award of general damages and has been.
[162]
In terms of future costs the housekeeping and yardwork amount claimed is
$50,000. As observed by Ms. Craig, at present:
Mr. Grewal does not require home help for regular household
cleaning at present. Mr. Grewal currently resides in his parents home
with little responsibility for household chores/tasks. Should this situation
change and he is required to help at home, he will need to pace himself or
perform aggravating tasks for short intervals at a time thus extending the time
to complete tasks. Should he elect to live on his own or start his own family
he may have difficult with repetitive bending/reaching cleaning tasks, leading
him to require regular outside help to maintain his own home (mopping,
sweeping, cleaning bathroom, vacuuming).
Again, Mr. Grewal does not
have responsibilities in the yard or garden at present. Should Mr. Grewal
move away from the family home he will require assistance for seasonal cleaning
(approximately 10-15 hours per year). Mr. Grewal will require assistance
for heavier or very repetitive garden and yard care.
[163] Ms. Craig
notes that in the future Mr. Grewal may have difficulty
leading him to require
regular help. As well, should Mr. Grewal move away from the family
home he will require assistance for seasonal cleaning and heavier or very
repetitive garden/yard care. The garden/yard care assumes that Mr. Grewal
will move into a residence where such work is required.
[164] The
plaintiffs claims for housekeeping and yard work are made to extend for the
plaintiffs lifetime and after assumed knee surgery. The defence submits that
the plaintiff in this case is able to do all housekeeping and yard work that is
necessary, but he sometimes has to accommodate by taking micro breaks while,
for example, vacuuming or cutting the grass. As in Travis v. Kwon, 2009
BCSC 63, it is submitted that any claim for housekeeping assistance is not
medically justified and is better dealt with, if at all, in non-pecuniary
damages.
[165] The assessment
here requires the application of likelihood of such requirements arising and to
what extent given my findings regarding Mr. Grewals limitations. In my
view, Mr. Grewal would even without his injuries require some assistance
before 75 years, the assistance may not be required for many years it at all and
that any such assistance would be less than the amount claimed. I recognize
that the $50,000 is a reduced amount however, my view is that by adjusting for
the more positive condition of the plaintiff that I have found, my assessment
of what is reasonable is $10,000.
XII.
Special Damages
[166] The
parties have agreed that the plaintiff is entitled to recover $9,328 under this
head.
XIII.
Cost of Future Care
[167] An award
under this head is governed by the principles set out in Milina v. Bartsch,
(1985), 49 B.C.L.R. (2d) 33 (S.C.); affd (1987), 49 B.C.L.R. (2d) 99 (C.A.),
namely that: (a) there must be a medical justification for the claim; and (b)
that the claim must be reasonable.
[168] The
plaintiff seeks the amount of $114,552 under this head.
[169]
Items sought are:
(a)
rehabilitation -supervision – $1,822;
(b)
active rehabilitation – $2,422;
(c)
ongoing rehabilitation – $14,040;
(d)
YMCA membership $13,609 to age 75;
(e)
analgesic medication;
–
Diclofenac – $7,893;
–
Tylenol #3/Lenoltec/Over-the-counter Tylenol – $10,564;
–
sleep aids – $1,342;
–
anti-depressants – Cymbalta – $25,000;
(f)
cognitive behaviour therapy – $10,898;
(g)
vocational services – $2,228;
(h)
pain clinic – $14,500; and
(i)
retraining costs – $5,858.
[170] The
defence submits that few of the items claimed are medically justified on the
evidence, and certainly not for the length of time assumed by Mr. Carson
in his report. For example, the claims include a supervised exercise program
and a gym membership for the plaintiffs lifetime, along with special
physiotherapy after an assumed knee replacement. Medications in the form of
Tylenol #3, diclofenac and clonazepam are calculated for the plaintiffs
lifetime, despite the evidence being that those medications are for use only as
needed and are not recommended for long term use. Cymbalta is calculated for
the plaintiffs lifetime, despite the evidence being that the plaintiff dose
has already been halved due to the remission of his depression, and the
expectation is that the medication will be weaned further and discontinued if
possible.
[171] In terms
of the claim for cognitive behavioural therapy for the plaintiffs lifetime, the
defence submits the claim is entirely inconsistent with the plaintiffs success
in achieving a sustained remission from his depression. None of the experts,
aside from Dr. Mallavarapu, suggested cognitive behavioural therapy and
even he did not suggest that it continue for the plaintiffs lifetime. It is
submitted that the claim is not medically justified.
[172] In terms
of the cost of a private pain clinic. The defence submits that the only
suggestion that he attend a pain clinic is by Dr. Singh, his family
physician, who referred him to a pain clinic under the provincial health plan.
The defence notes that Dr. Hershler does not make such a recommendation,
nor does Dr. Mallavarapu and that Dr. Singh was clear in her evidence
that she defers to specialists with regard to the plaintiffs care. It is
submitted that in the circumstances of the recommendation, particularly in
light of the now- sustained remission of the plaintiffs depression, there is
no medical justification for a private pain clinic despite the referral by Dr. Singh.
[173] In terms
of the costs of another retraining program, the defence submits that there was
no evidence from anyone but Dr. Powers about the suitability of such
programs or whether the plaintiff had any interest in enrolling in them. With
the plaintiffs almost complete financial management courses there is no reason
for such additional courses. In addition, the plaintiffs evidence was that he
considered the security job to be a stepping stone to further educations and
training in any event. He clearly would have been required to take additional
training to further his career even had the Accident not occurred.
[174] Dr. Lui
spoke of knee replacement risk of this happening is slightly greater than a
person who had not suffered the type of meniscus tear that Mr. G did.
[175]
I am satisfied that the medically justified and reasonable costs under
this head are as follows:
(a)
rehabilitation and gym access $2,422. For future rehabilitation and gym
membership, the amount is reduced to reflect the likelihood of flareups
occurring further out than year two as argued for the by the plaintiff. As a
result, I assess additional active rehabilitation at $10,000. In terms of gym
memberships, the evidence is limited as to such a need as well as to the cost.
However, such a membership can be justified on the basis of the medical
evidence. A community centre recreation annual pass would be lower than the $500
to $672 argued for by the plaintiff. Taking into consideration that Mr. Grewal
has a home gym assessment of a reasonable award is $6,000.
(b)
analgesic medications. In terms of Diclofenac and Tylenol #3,
Lenoltec, over the counter Tylenol, some recognition that Diclofenac may be all
that is required in the future, or that the combination may be lessened is
warranted. Accordingly, I find $13,000 to be reasonable.
(c)
anti-depressant – Cymbalta. The plaintiff seeks $1,525 for the next
year and $770 for the second year. For the remaining lifetime of the plaintiff
$25,000 is sought. The plaintiff says this last amount reflects a discount of
a 40% recurrence contingency and a further reduction to reflect that relapse
may not come about for some time. I think this is reasonable. Accordingly,
$27,295 is awarded.
(d)
pain clinic – though the plaintiffs family has referred Mr. Grewal
to a publicly funded pain clinic and that he is on a waitlist, the plaintiff
argues that a private clinic is justified at a cost of $14,500. Given, the
awards for active rehabilitation, gym membership, cognitive therapy, the
psychiatric care, the medications provided, that his chronic pain is found to
be at the low end, that Mr. Grewals depression is in remission, and that
none of Dr. Mallavarapu, Dr. Gouws, or Dr. Hershler recommend a private
pain clinic, my view is that an award for this item is unwarranted.
[176] In terms
of vocational services and retraining costs though I have found the plaintiffs
career pursuit in financial planning to be the most likely, I have also
determined a negative scenario as a lesser likelihood. Discounting for this,
the amount of $2,000.
XIV.
Conclusion
[177]
The plaintiff is awarded the following:
(a) General | $110,000 |
(b) Past | $187,434 |
(c) Future | $150,000 |
(d) Housekeeping | $10,000 |
(e) Special | $9,328 |
(f) | $48,295 |
TOTAL | $515,057 |
|
|
[178] If the
parties require matters relating to costs, management fees, and income tax
gross-ups to be addressed by the court, a hearing should be arranged through
scheduling.
The
Honourable Mr. Justice Masuhara