IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20150723

Docket: Vancouver

Registry: M125464

Between:

David
Derksen

Plaintiff

And:

Stacey Leanne
Nicholson

Defendant

And:

Insurance
Corporation of British Columbia

Third
Party

–
and –

Docket: Vancouver

Registry: M136954

Between:

David Derksen

Plaintiff

And:

Zakir A. Kassam
and Al Karim Kassam

Defendant

Before: The Honourable Mr. Justice
Grauer

Reasons for Judgment

INTRODUCTION

[1]            
This claim for damages arises out of two motor vehicle accidents.  The
first occurred on October 11, 2010, while the second happened on May 28,
2013.  In both of these accidents, the plaintiff was a driver whose vehicle was
struck from behind: the first time with light to moderate force; the second
time with very little force.

[2]            
The plaintiff was involved in a third accident on July 9, 2013,
this time at an intersection where he had advanced from a stop sign under the
mistaken impression that it was a four-way stop intersection.  It was not, and
he collided with a vehicle coming from his right that had the right-of-way. 
The impact of this collision, although not from behind, was of greater force
than the other two.

[3]            
Liability for the first accident, while not admitted (the driver being
in breach of her insurance conditions), is not seriously contested.  Liability
for the second is admitted, subject to a plea of contributory negligence.  The
real question is damages.  The principal issues are the degree to which, if
any, the other two accidents contributed to any injury caused by the first
accident, and whether the plaintiff suffered a past loss of income earning
capacity.  No future loss of earning capacity is claimed.

LIABILITY

[4]            
Liability is straightforward.  In both the first and second accidents,
the plaintiff was struck from behind.  There is no evidence that he did
anything at all to contribute to either collision, and it is clear that he was
wearing his seatbelt and had his headrest adjusted on both occasions.

[5]            
I find the defendant Nicholson wholly at fault for the first accident. 
On the evidence, she was following too close for safety in the circumstances. 
I find the defendant Kassam wholly at fault for the second accident.  He was in
a stopped line of traffic behind the plaintiff.  The plaintiff started forward
and so did Mr. Kassam.  The plaintiff stopped and Mr. Kassam did
not.  He was paying insufficient attention.

[6]            
It is not disputed that the plaintiff was wholly at fault for the third
accident.

DAMAGES

A.             
The Plaintiff

[7]            
The plaintiff, Mr. Derksen, is now 42 years old.  He is employed as
an account executive in the field of information technology services,
specializing in data centre infrastructure solutions.  His job is sales.  He is
good at it and earns a substantial income.  The work is stressful and requires
long hours, averaging in the range of 60 hours per week.  He is married, and
has two young daughters: Isabel, born June 29, 2011, and Kadence, born
April 8, 2014.  His wife, Sophia Derksen, is employed by Great West Life
as a rehabilitation consultant.

[8]            
Mr. Derksen began his career at age 15 as a stock boy for London
Drugs.  He gradually moved into the IT division of London Drugs, becoming an
assistant manager.  He then joined Doppler Computer Superstores, working in
Vancouver and Calgary, where he became vice president of sales.

[9]            
While working, Mr. Derksen enrolled in a Business Administration
program at Kwantlen University.  After two years in the program, during which
he worked full time, he left school and carried on with his employment.

[10]        
Mr. Derksen joined DTM Systems Corporation in Vancouver in 1999, a
company that promoted higher end solutions in the information security area. 
There, Mr. Derksen became a client executive (corporate sales), and
remained until June 2009, when he joined Scalar Decisions (“Scalar”) in
Vancouver as an account executive (the same sort of position he had occupied at
DTM, but in a different context).  He was employed at Scalar throughout the
time material to this action.  He was dismissed from Scalar “without cause” in
October 2014, and had no difficulty finding a new position.  He is presently
productively employed at Mainland Information Systems as an account executive.

[11]        
Mr. Derksen married on April 13, 2010.  He and Sophia began
living together about six months before this, sharing her apartment downtown.  Mr. Derksen
moved there from North Vancouver where he had been living with a friend.  He
and Sophia continued to live downtown until April 2011, when they moved to
a house they had acquired in New Westminster that they share with Mr. Derksen’s
father, who lives in the basement suite.

B.             
Injury, Treatment and Recovery

[12]        
That the plaintiff suffered a whiplash-type soft tissue injury in the
first accident is beyond doubt.  To deal with this injury, Mr. Derksen saw
his family doctor, Dr. Meenaz Rasool, whose report was entered into
evidence without the necessity of Dr. Rasool being produced for cross
examination.

[13]        
Mr. Derksen saw Dr. Rasool once in 2010 before the accident,
and 22 times between October 19, 2010, and December 3, 2014, in
relation to his whiplash injury.  He testified to that, due to poor
appointment/waiting room management, each of these appointments would occupy
about four hours of his time, including waiting, treatment, travel and parking.

[14]        
According to Dr. Rasool:

The first injury suffered by Mr. Derksen on October 11,
2010 was a flexion-extension type of injury to the cervical-dorsal axis from a
rear-ender.  Mr. Derksen was showing improvement in his status when he was
involved in two more accidents on May 28, 2013, another rear-ender and a
side hit on July 9, 2013.  The injury of October 11, 2010 would make him
more susceptible to further injury even with lesser trauma.  While Mr. Derksen
felt that there was no aggravation of his former injury, the recurrence of his
symptoms bear it out that there was a temporary aggravation of his injury and
symptoms.  Mr. Derksen has done well in his recovery and when seen on September 29,
2014 he had made significant progress and was in fact planning to winding down
his treatments.

I feel that Mr. Derksen has
made a good recovery from his injuries and that he should continue to improve
barring any further injury.  He still continues to have minor residual symptoms
but those should continue to improve with exercise, massage and time.  I do not
foresee any long-term disability.

[15]        
At the request of the defence, Mr. Derksen was assessed by an
orthopedic surgeon, Dr. Thomas Greidanus of Cira Medical Services.  Dr. Greidanus
saw Mr. Derksen on March 24, 2015.  His report was admitted without
requiring Dr. Greidanus to attend for cross examination.  I found it
unhelpful given Dr. Greidanus’s very limited “snapshot” involvement, late
in the day.  In Dr. Greidanus’s view, Mr. Derksen had suffered
cervical sprain and suspected lumbar sprain, both resolved, with “no objective
findings of an orthopedic problem that would relate to the MVA”.  He stated
that a normal or average time period for recovery from such injuries was in the
range of 3 to 6 months, and described Mr. Derksen’s prognosis as “very
good”.  He recommended that Mr. Derksen continue with a regular exercise
program, and opined that physiotherapy, chiropractic and massage “are not medically
essential”.

[16]        
In the time since the first accident, Mr. Derksen attended on a
number of therapists who specialize in treating whiplash-type injuries.  As
these treatments are relevant both to his claim for special damages and to his
claim for past loss of income earning capacity, as well as his claim for
non-pecuniary damages, I will review them in some detail.

[17]        
With the one exception, Mr. Derksen’s involvement with all of the
therapists came as a result of his own research, and the recommendations of his
wife and other friends involved in rehabilitation consulting.  The treatments
were not initiated as a result of medical referral.  Dr. Rasool was,
however, kept informed, and advised Mr. Derksen “to continue with his
treatments”.

[18]        
The first therapist he saw was Ms. Lesli Smith, a Registered
Massage Therapist.  He has seen her regularly, although with declining
frequency, from October 22, 2010 to the present.  The total cost of her 187
treatments through May 14, 2015, is $20,861.05.  These sessions, according
to Mr. Derksen, were an hour in length, typically scheduled for Thursday
mornings from 9:00 AM to 10:00 AM, and would occupy two hours of his
time once travel time and parking were taken into account.

[19]        
Ms. Smith testified.  She explained that Mr. Derksen first
became a client in October 2010, after the accident, and that her
treatment dealt primarily with spine alignment, soft tissue problems in the
neck, shoulders and upper back, his complaints concerning the top of his head,
and restrictions in motion.  Secondarily, she treated his hips and pelvis.  She
carried out postural analysis and designed a sequence of exercise programs for
him to do at home.  The last program she designed was in January 2012,
following which his direction and exercise was taken over by the
physiotherapist and kinesiologist.  Throughout this time, he appeared to be
getting stronger and his alignment improved.

[20]        
By the time of the second accident, Mr. Derksen was stronger and
his posture had improved.  She expected him to continue treatment and to keep
improving.  After the second accident, there may have been a bit more tension,
but there were no significant changes from the previous five months.  She saw
no changes following the third accident.

[21]        
According to Mr. Derksen, he kept going with Ms. Smith’s
massage therapy because he continued to need the relief it supplied, which
would last from a few hours to a whole day.  This would allow him to carry out
his exercises and make progress in his recovery.

[22]        
In December 2010, Mr. Derksen began seeing two additional
therapists, Janey Cole-Morgan, a semi-retired but highly recommended whiplash
physiotherapist, and John Davis, a Doctor of Chiropractic, to whom he was
referred by Ms. Smith.  Ms. Cole-Morgan’s five treatments came to a
total of $520 (December 13, 2010-February 8, 2011) while Dr. Davis’s
49 treatments totalled $2,737.03 (December 21, 2010-November 18,
2014).

[23]        
Mr. Derksen testified that appointments with Ms. Cole-Morgan
occupied two hours of his time including treatment time, travel and parking,
while, on average, appointments with Dr. Davis occupied three hours due to
less than ideal waiting room management, treatment time, parking and travel.

[24]        
Ms. Cole-Morgan prescribed particular exercises, including eye
movements, to help align his neck and relieve tension.  Dr. Davis’s
chiropractic treatment was frequently painful, but provided significant relief,
particularly when adjustments were carried out.  The relief would last a week
or so, and then for longer periods.

[25]        
Added to the stable, in June 2011, was Matthew Bern Powell, also a
physiotherapist, and in November 2011, Carmen Graham, a kinesiologist.  Mr. Powell’s
treatments cost $2,342.67 (June 21, 2011-September 16, 2013).  Mr. Derksen
saw Ms. Graham on the recommendation of Dr. Rasool, and attended 16
sessions beginning November 30, 2011, and ending June 21, 2012.  As
far as I can see, the schedule of special damages (Exhibit 3, Tab 4)
does not include any fees charged by Ms. Graham.  I understand that they
were covered by no-fault benefits.

[26]        
Mr. Derksen testified that he would generally take Mr. Powell’s
first appointment, at 8:30 AM, and would travel from home.  The treatments
would take 40 minutes, with an additional half hour for parking and
travelling to work after the treatment.  Appointments with Ms. Graham were
at a Fitness World close to his office, and consisted of one-hour sessions
beginning at 8:00 AM.  An additional 40 minutes would be occupied with cleaning
up and getting to work afterwards.

[27]        
Mr. Powell also did adjustments and physical manipulation.  He
applied therapies such as transcutaneous electrical nerve stimulation (TENS),
and intramuscular stimulation (IMS), and prescribed yoga exercises.  Yoga was
also prescribed by Dr. Rasool, and Mr. Derksen signed up for a class
of five sessions of yoga.

[28]        
Ms. Graham acted in the role of a personal trainer, taking Mr. Derksen
through an exercise of program designed to strengthen and stretch his muscles
and ligaments, increasing mobility.

[29]        
The defence does not dispute the fact that Mr. Derksen was injured
in the first accident, but submits that, on the evidence, he had experienced
significant improvement within 18 months (coinciding, in essence, with the
conclusion of his treatment with Carmen Graham in mid-2012).  Thereafter, the
defence asserts, his complaints were minimal.  Somewhat inconsistently, the
defence further asserts that the third accident was more aggravating than Mr. Derksen
lets on.

[30]        
Defence counsel refers me to Price v Kostryba (1982), 70 BCLR 397
(CA), which cautions the court to be “exceedingly careful where there is little
or no objective evidence of continuing injury and when complaints of pain
persist for long periods extending beyond the normal or usual recovery”.  I
accept the correctness of the proposition, but do not consider it applicable in
the present case.

[31]        
I find that there is a good deal of evidence to support Mr. Derksen’s
complaints, and nothing meaningful to refute them.  I found Mr. Derksen’s
testimony to be generally credible.  Alleged inconsistencies between his
evidence on discovery and his evidence at trial proved, on inspection, to be
illusory.  I do not consider the offhand comment of Dr. Greidanus that the
average time for recovery from “such injuries” was 3 to 6 months, given that he
saw the plaintiff precisely once, after he was mostly recovered, to be meaningful,
and I am unable to give any weight to it for the apparently intended purpose of
generating suspicion as to Mr. Derksen’s credibility.

[32]        
The defence argues that a note in Dr. Rasool’s chart from Mr. Derksen’s
one pre-accident visit in 2010 is evidence that not all of his symptoms
following the first accident are attributable to it, and that he suffered from
a similar problem before the accident.  That note, dated September 29,
2010, indicates that Mr. Derksen complained of tightness in the neck and
shoulder, and requested a prescription for massage.  There is no previous
record of such a problem.

[33]        
Mr. Derksen explained that he had been hiking with a heavy pack in
Washington State just prior to this and assumes (because he cannot recall) that
the tightness was one of the after-effects of that hike.  He never went for the
massage prior to the motor vehicle accident.  On the basis of Mr. Derksen’s
evidence, which I accept, together with photographic and other evidence that
shows he was physically unrestricted the weekend before the accident, I
conclude that this visit had nothing to do with the symptoms he suffered
following the accident.

[34]        
On the basis of all of the evidence, I find that Mr. Derksen
suffered a moderate whiplash injury in the first accident that has improved
slowly over the ensuing years.  By late 2012, he was recovered to the point
that he was able to function at a level that was close to his pre-accident
state, but had not yet fully recovered.  Then, in May and July 2013, he
suffered a minor aggravation of that state as a result of the second and third
accidents.  By the time of trial, he was essentially back to normal with a few
lingering symptoms, which I have every reason to expect will eventually
disappear.

C.             
Causation

[35]        
The question arises as to what impact, if any, the plaintiff’s
responsibility for the third accident should have on the defendants’ liability
for the consequences of his injuries.  This is a deceivingly complicated
question that did not receive the attention it deserved in argument, although,
to be fair to counsel, its impact on the outcome was, in the circumstances of
this case, destined to be relatively minor.

[36]        
As I indicated above, the evidence establishes that the primary cause of
Mr. Derksen’s injury was the first accident of October 11, 2010.  He
was approaching his pre-accident state by the time of the second accident on
May 28, 2013, and the third accident followed shortly thereafter on July 9,
2013.  On the evidence, the second and third accident each caused but minor
aggravation of his symptoms.  By the time of the third accident, which was his
fault, Mr. Derksen’s status had returned to the state he had been in
before the second accident.  On the basis of the evidence of Mr. Derksen, Ms. Smith
and Ms. Idema, I find that the degree of aggravation caused by the third
accident was minor and very limited in duration.

[37]        
The defence expert evidence would suggest that Mr. Derksen had
fully recovered by the time of these accidents any event, but I accept the
evidence of Dr. Rasool that both of them caused some minor aggravation,
and that the first accident had rendered Mr. Derksen susceptible to that
aggravation.

[38]        
The plaintiff submits that his injury is indivisible among the three
accidents, and therefore, following Bradley v Groves, 2010 BCCA 361,
liability is joint and several against the defendants in the first two
accidents.  The contribution of the third accident, he maintains, is immaterial
to this analysis as Mr. Derksen cannot be a tortfeasor to himself, and the
third accident is therefore like any other non-tortious contributing cause as
discussed in Athey v Leonati, [1996] 3 SCR 458.  On this analysis,
the defendants in the two accidents that are the subject of this lawsuit remain
jointly and severally liable for the whole.

[39]        
I note that Bradley did not deal with the situation where the
plaintiff was at fault for one of the accidents that contributed to the
indivisible injury.

[40]        
Notwithstanding its position that Mr. Derksen was entirely
recovered before the second accident, on this issue, the defence agrees that
the injury is an indivisible one, but maintains that his damages should be
apportioned between the two accidents for which he was not at fault, and the
one accident for which he was at fault.  The defence points to Athey,
where at para 24 the Court articulates as a fundamental principle in the
law of causation the proposition that “[a] defendant is not liable for injuries
which were not caused by his or her negligence”.

[41]        
The defence further relies on Andrews v Mainster, 2014 BCSC 541,
in which the plaintiff suffered from pre-existing mood and anxiety disorders
that were aggravated by a car accident, and further complicated by subsequent
traumatic events unrelated to the car accident.  Mr. Justice Pearlman, who
did not refer to Bradley, found that 50% of the plaintiff’s symptoms
were attributable to the accident, 40% to her previous health problems, and 10%
to the subsequent events.  The plaintiff’s non-pecuniary damages for
psychological injury were accordingly reduced by 50%.  As I read that case,
Pearlman J. found, in effect, that the injuries were divisible.

[42]        
In this case, the defence submits that the plaintiff’s non-pecuniary
damages should similarly be reduced in the range of 10%-20% to account for both
his prior complaints (which I have found to amount to nothing) and the
aggravation of injuries arising from the third accident.

[43]        
The proposition that the plaintiff’s injury must be considered to be an
indivisible one, at least from a non-pecuniary perspective, has considerable
force.  As the court noted in Bradley at para 37, “it is difficult
to see how the worsening of a single injury could be divided up”.  I say “from
a non-pecuniary perspective” because I am satisfied on the evidence that the
aggravation arising from the second and third accidents had no causative
relationship, on a “but for” analysis, to the plaintiff’s claim for past loss
of income earning capacity.

[44]        
Neither side suggests that a contributory negligence analysis should be
applied in accordance with the Negligence Act, RSBC 1996, c 333. 
That approach was followed in Bilanik v Ferman, 2014 BCSC 732,
where the court considered a claim arising out of two accidents where the
injury was indivisible.  Mr. Justice Harvey found that while the defendant
in the first accident was 100% at fault, the plaintiff was 20% at fault for the
second accident based on relative blameworthiness.  The second accident was,
however, the major contributor to the plaintiff’s principal residual complaint.

[45]        
In the circumstances, Harvey J. apportioned liability 15% to the
first defendant, 70% to the second defendant, and 15% to the plaintiff,
commenting that the first defendant’s lapse was relatively minor.

[46]        
But applying a strict Negligence Act analysis in the
circumstances before me would require a substantial apportionment against the
plaintiff in this case, given the relatively equal degrees of fault in the
three accidents, notwithstanding the minimal relationship between the Mr. Derksen’s
negligence and his injuries.  It would have the effect, contrary to section 1(3)
of the Act, of making Mr. Derksen liable for loss to which his fault
had not contributed.  This is because fault on his part did not contribute in
any way to the considerable damage and loss he suffered prior to the date of
the third accident, and only minimally to loss and damage suffered thereafter.

[47]        
A different approach was taken in Demidas v Poinen, 2012 BCSC 416,
where the plaintiff claimed as damages for injuries suffered in four accidents
in which liability was admitted.  He had also been in a fifth accident for
which he was at fault.  Like our case, that fifth accident was not a subject of
the trial, and had caused aggravation of the plaintiff’s injuries.  In
considering the contribution problem, Madam Justice Humphries said this:

[50]      Counsel for the plaintiff approached the fifth
“at-fault” accident as a question of contributory negligence which would reduce
the non-pecuniary award to some extent.  When questioned about this by the
court, he could provide no cases to support such an approach.  Counsel for the
defendant said this was not a matter of contributory negligence but did not
have an alternative approach.

[51]      The effect of the at-fault accident on the overall
damage award is not a matter of contributory negligence, although the effect on
the overall result may be similar.  It is a matter of ensuring that the
defendants are responsible only for the loss and damage they caused to the
plaintiff.

[52]      None of the cases cited to me by the plaintiff deal
with sequential accidents, and none have at-fault accidents in the midst of
accidents for which the plaintiff can claim damages.  In [MacGillivary v.
Amar Trucking et al, 2002 BCPC 0437], the provincial court judge applied Long
v. Thiessen, (1968) 65 W.W.R. 577 and assessed damages separately for each
of three accidents.  Where the effects of the injuries are not divisible, as
here, that approach is not appropriate as between tortfeasors (Bradley v.
Groves 2010 BCCA 1507).  On the other hand, the defendants are not
responsible for the injuries Mr. Demidas caused to himself, so the effects
of that accident have to be accounted for.

[55]      The effect of the accidents is cumulative, each one
exacerbating the symptoms that remained from the previous one to a collective
whole.  Therefore it is not appropriate to simply take one figure and multiply
it by four as the defendant suggests.

[56]      While this is not a situation where damage is
divisible and capable of individual apportionment, nevertheless the loss and
damage caused by the accident for which Mr. Demidas is at fault must be
considered and removed from the overall award so that the defendants are not
held responsible for that amount.

[57]      This is an imperfect
exercise, dealing with intangibles and hypotheticals.  Although each accident
was fairly minor, the recurrence of accidents contributed to Mr. Demidas’
ongoing symptoms.  However, those symptoms are not as severe as those in the
cases cited to me by the plaintiff.  Considering the authorities presented to
me, the injuries sustained in the four accidents, and adjusting the amount for
the effects of the at-fault accident, I set non-pecuniary damages at $45,000.

[48]        
It must be remembered that in Athey, when the Supreme Court
declined to apportion any part of the causation of the plaintiff’s injuries to
the exercise that resulted in his disc herniation, it noted at para 39:

The “Fitness World incident” was
not a cause; it was the effect.  It was the injury.  Mere stretching
alone was not sufficient to cause disc herniation in the absence of some latent
disposition or previous injuries.  There was no suggestion that it was
negligent of the appellant to attempt to exercise or that he exercised in a
negligent manner.

[49]        
In both this case and Demidas, then, what Mr. Derksen would
describe as a ‘later non-tortious cause’ as in Athey, his at-fault
accident, was in fact tortious.  Moreover, the contribution of Mr. Derksen’s
at-fault accident was a minor aggravation of a defined pre-existing injury.  In
Athey, the injury arose from the later non-tortious event due to the
combined effect of the two incidents.

[50]        
The principal distinguishing feature between Demidas and Bilanik
is that in Bilanik, the plaintiff claimed against two sets of defendants
involved in two accidents, for one of which the plaintiff was partly at fault,
whereas in Demidas, like this case, the accident for which the plaintiff
was at fault was not part of the litigation, as the plaintiff cannot claim
against himself.  In this latter situation, counsel agree, the Negligence
Act has no application.

[51]        
Analytically, it is difficult to justify a difference in result between
a situation where one of several contributing accidents was only partly the
plaintiff’s fault, and forms part of the litigation, and a situation where one
of the contributing accidents was entirely the plaintiff’s fault, and therefore
forms no part of the litigation.  But whether that necessarily follows (given
the reasoning in Bradley) is a question I do not need to resolve in this
case.

[52]        
What is different about this case is that notwithstanding that the third
accident aggravated a pre-existing injury, and notwithstanding the position of
counsel, I find I am able to divide up the injuries.    This is not a case like
Bradley, Athey or Demidas where the injury was the result of
consecutive cumulative incidents leading to a collective whole.  Rather, there
were two blips of exacerbation, each of which dissipated, leaving the plaintiff
in a state referable entirely to the first accident.  Accordingly, I conclude
that the effects are divisible.

[53]        
On the evidence, I find that the second accident caused a minor
aggravation in the form of increased pain and stiffness, for a period of
approximately one month.  Mr. Derksen testified, and I accept, that it
increased his (by then considerably improved) symptoms by 10%, and that this
aggravation had resolved completely before the third accident.  I find that it
had no effect on Mr. Derksen’s income earning capacity, housekeeping
capacity, future care needs or residual symptoms.  I find that it caused Mr. Derksen
to incur the expense of two massage therapy treatments and one chiropractic
treatment, which he would not have required but for that accident.

[54]        
I find that the third accident caused a very minor aggravation in the
form of increased emotional stress and associated stiffness, for a period of
approximately two weeks.  I am unable to relate it to any expenses, and I am
satisfied that, like the second accident, it had no effect on Mr. Derksen’s
income earning capacity, housekeeping capacity, future care needs or residual
symptoms.

D.             
Non-Pecuniary Damages

[55]        
I have already discussed the nature of the plaintiffs’ injuries, and
will now review their impact on his life.

[56]        
Before the first accident, Mr. Derksen was physically very active. 
He exercised five days a week, divided between swimming and the gym, and on
weekends he liked to spend as much time outdoors as possible, principally
hiking and biking.  He did many of these activities with his wife.

[57]        
After the accident, he did very little exercise other than that
prescribed by his treatment providers, and took no part in recreational
activities for many months.  The treatments and exercises he did undertake
assisted in his recovery, but necessitated rest to cope with their effect on
his symptoms.  He required his father’s assistance in maintaining the garden at
the new house in New Westminster, and when he and his wife moved to that house,
he was unable to assist notwithstanding that his wife was advanced in her
pregnancy.

[58]        
During that time, and following the birth of his first daughter, the
burden of home and childcare fell entirely on his wife’s shoulders.  This was
stressful to their relationship.  He was unable to paint his child’s bedroom in
anticipation of her arrival, and was a limited in his ability to hold her after
she was born.  By the time of the birth of his second daughter in April 2014,
things were different.  He was able to paint the bedroom, and participate fully
in caring for the new baby (to the point, Sophia Derksen observed, that she has
become a true “Daddy’s girl”).

[59]        
Mr. Derksen’s injuries also affected his working life, which I will
review in more detail in connection with his claim for past loss of income
earning capacity.  For now, it is sufficient to note that he was significantly affected
in his mood, stamina and concentration, ultimately parting ways with his
employer.

[60]        
The defence submits that non-pecuniary damages should be assessed on the
basis of a mild to moderate whiplash injury, lasting 12-18 months, and proffers
a number of cases assessing damages for an injury of that nature in the range
of $25,000-$30,000: Loik v Hannah, 2009 BCSC 1996; Lopez v VW
Credit Canada Inc, 2008 BCSC 320; Boutin v MacPherson, 2012
BCSC 1814; Tong v Sidhu, 2009 BCSC 305; and Ludwig v
Frighetto, 2012 BCSC 1721.

[61]        
The plaintiff refers to Unger v Singh, 2000 BCCA 94, which
reduced a jury award, as authority for the proposition that in cases involving
primarily soft tissue injuries with some emotional affect, the awards range
from $35,000 to $125,000, which, adjusted for inflation, would amount today to
a range of approximately $46,000 to $167,000.

[62]        
The plaintiff submits that, bearing in mind the factors set out in Stapley
v Hejslet, 2006 BCCA 34 at para 46, an “appropriate and
conservative non-pecuniary award would be in the $75,000 to $85,000 range,
which is under the mean average of the Unger v Singh range”.  The
plaintiff refers to the wide-ranging effects of his symptoms and the fact that
he continues to suffer mild residual symptoms nearly five years later.  He
supports the suggested range by reference to the following cases: Blackman v
Dha, 2015 BCSC 698; Beagle v Cornelson Estate, 2013 BCSC 933;
Smith v Moshrefzadeh, 2012 BCSC 1458; and Griffith v Larsen,
2014 BCSC 1687.

[63]        
I find the Unger case of little assistance in assessing the claim
of a particular plaintiff, as it was addressing a different kind of issue – not
the assessment of individual damages per se, but whether an award was
inordinately high.

[64]        
Turning to the cases relied upon by counsel, and a bearing in mind that
while every claim is different, like cases should be decided alike, I consider
that the authorities submitted by the defence are all fairly easily
distinguishable on the basis of the lesser degree of injury and shorter
duration of symptoms.  On the other hand, some of the cases offered by the
plaintiff are more serious. Beagle, for instance, where the award was
$85,000, was a case of chronic pain with a very poor prognosis for the future.

[65]        
On the other hand, Griffith, where the award was $75,000, is a
case that has several similarities, albeit complicated by issues concerning
whether the plaintiff suffered a thoracic outlet syndrome and other injuries,
in addition to those that were undisputed. Blackman, where the award
was $80,000, also has some similarities, although the overall level of recovery
appears to have been less than that enjoyed by Mr. Derksen.

[66]        
Weighing all the factors as best I can, I assess non-pecuniary damages
in this case in the amount of $70,000.  Of this amount, I apportion $4,000 to
the second accident and $2,000 to the third accident.  The remainder,
attributable to the first accident, includes Mr. Derksen’s claim for loss
of housekeeping capacity, which I consider to be modest and not susceptible of
precise pecuniary assessment.  The net award for non-pecuniary damages in this
action, then, is $68,000.

E.             
Past Loss of Earning Capacity

[67]        
The plaintiff did not take time off work as a result of the accident,
other than to attend treatments.  He continued to earn a healthy income, and
indeed his income increased over the years 2010, 2011 and 2012, dipping
slightly in 2013.  He submits, however, that his capacity to earn income was
reduced by the injury he suffered in the first accident.  This is because, he
asserts, he was unable to devote the time, attention to detail and positive
energy to his work that were essential to maximizing success in sales.  He
points out that he was obliged to devote many hours to treatments during the
workweek, when meetings with clients were normally scheduled, and generally was
able to work for only 40 or so hours a week, instead of the customary 60, until
late 2012.

[68]        
Because of the sales cycle, Mr. Derksen contends, his injuries had
an impact on his income beginning in approximately mid-2011 and lasting through
to early 2014.

[69]        
Mr. Derksen points to a number of deals he was unable to close, and
to clients whose departure he was unable to prevent, during the time in
question.  There was evidence of personality clashes and inappropriate
behaviour towards other employees which, on the evidence, was uncharacteristic. 
As his remuneration was commission-based, these missed opportunities had a
lasting impact.  If successfully completed, they would have led to income not
only in the year in which the deal would have been closed, but also in
subsequent years over which the contract would have continued to produce
profit.

[70]        
As noted in Rowe v Bobell Express Ltd, 2005 BCCA 141:

[30]      …a claim for what is often described as “past loss
of income” is actually a claim for loss of earning capacity; that is, a claim
for the loss of the value of the work that the injured plaintiff would have
performed but was unable to perform because of the injury.

[31]      Evidence of this value may take many forms.  As was
said by Kenneth D. Cooper-Stephenson in Personal Injury Damages in Canada,
2nd ed. (Scarborough, Ont.: Carswell, 1996) at 205-06,

…The essence of the task under this head of damages is to award
compensation for any pecuniary loss which will result from an inability to
work.  “Loss of the value of work” is the substance of the claim – loss of the
value of any work the plaintiff would have done but for the accident but now
will be unable to do. The loss framed in this way may be measured in
different ways.  Sometimes it will be measured by reference to the actual
earnings the plaintiff would have received; sometimes by a replacement
cost evaluation of tasks which the plaintiff will now be unable to perform;
sometimes by an assessment of reduced company profits; and sometimes by
the amount of secondary income lost, such as shared family income.

[My underscoring; other emphasis in original]

[71]        
The plaintiff is required to establish, on a balance of probabilities,
that his injuries in fact impaired his capacity to earn income.  Once that
causal connection has been demonstrated, the court may, in assessing that loss,
take into account real and substantial possibilities in the form of past
hypothetical events: Smith v Knudsen, 2004 BCCA 613; see also Reynolds
v M. Sanghera & Sons Trucking Ltd, 2015 BCCA 232.  In the end, the
method of valuing a claim for past loss of income earning capacity will depend
upon the circumstances of the case: Beagle v Cornelson, 2012 BCSC 1934
at para 40.

[72]        
On the evidence, including the testimony of the plaintiff and others who
worked at Scalar, I am satisfied that Mr. Derksen’s ability to maximize
his income as an account executive was impaired by his injuries.  He was unable
to devote as much time as he customarily did, he was distracted and unable to
provide the level of focus to which he was accustomed, his mood was affected,
making him more irritable and less engaging, and his level of energy was
reduced.  I am satisfied that these are all factors that impact the ability of
a salesperson to maximize his income.

[73]        
The question is how to assess this impact.  The defence argues that it
was minimal, because Mr. Derksen’s income kept going up.  But this must be
viewed in the context of a company that was growing exponentially, with greatly
expanding opportunities for its sales force.  I am satisfied that, but for the
accident, Mr. Derksen would have been able to earn a greater amount than
he did over the time in question by bringing in contracts providing greater
profit to Scalar, and higher commissions to himself.

[74]        
At the same time, I am not greatly impressed by the approach of
attempting to establish an hourly rate based on historic earnings, and
multiplying that by the hours spent in treatment and by the reduced hours of
work.  Nor did I find enlightening the comparison to the performance of another
sales executive at Scalar, given the enormous variables at play.  While it is
useful to look at the opportunities Mr. Derksen believes he was unable to
exploit because of his injuries, I cannot find that the accident can be blamed
for all of these misses.  Moreover, given the evidence of witnesses such as Ms. Idema,
Mr. Sharpe and Mr. Gardner, all of whom worked at Scalar at the same
time, I am unable to accept that Mr. Derksen’s potential in this regard
was as positive as he sincerely believes.

[75]        
Taking into account the projects to which Mr. Derksen referred, and
the contingencies that arise both positive and negative, together with his
average commission rate of 25%, I find it reasonable to assess his past loss of
income earning capacity at the equivalent of $30,000 per year in gross income
over the years 2011, 2012 and 2013, for a total of $90,000.

F.             
Loss of Housekeeping Capacity

[76]        
I accept that Mr. Derksen’s housekeeping capacity was impaired from
the time of the first accident through to the end of 2012.  Given his devotion
to work, however, it was not a capacity that was greatly exercised
pre-accident, and I find this claim to be modest in its scope.  The plaintiff
did not suggest otherwise, valuing it in the range of $3,500-$7,000.  In my
view, it is the lower end of that range that is appropriate.  In the
circumstances, I have included it in my assessment of his claim for
non-pecuniary damages.

G.            
Special Damages

[77]        
I reviewed above the treatments undertaken by Mr. Derksen, and
their cost.  The amount expended is not contested, but the defence argues that
most of these treatments were neither prescribed nor recommended by Mr. Derksen’s
physician, and that the massage treatments, in particular, were excessive.

[78]        
Explicit medical recommendation is not a prerequisite to establishing a
claim for special damages: Gosselin v Neal, 2010 BCSC 456 at paras 83
and 101.  As I said in Zhang v Ghebreanenya, 2015 BCSC 938 at para 38,
once causation is established, the test for allowing special damage claims is
whether the expenses were reasonable.  See also Lee v McGuire, 2005
BCSC 241 at para 16.

[79]        
I conclude that the costs for all of the treatments Mr. Derksen
undertook would not have been incurred but for the first accident, with the
exception of those three that I attribute to the second accident as discussed
above.  I further find that these expenses were reasonably incurred, based on
the following factors that the evidence established:

(a)           
the treatments all involved practitioners with appropriate expertise in
the area of injury that the accident caused;

(b)           
with respect to the massage therapy treatments in particular, Ms. Smith
described the nature of her treatments and Mr. Derksen’s progress, all in
relation to the injuries sustained in the accident;

(c)           
Dr. Rasool was kept aware of these treatments.  He recommended that
Mr. Derksen continue with them, and specifically referred Mr. Derksen
to physiotherapy, kinesiology and yoga.  He also supported attendance on a
chiropractor; and

(d)           
the treatments, in combination, were successful.

[80]        
I further observe there was no evidence to the contrary.  Dr. Greidanus’s
statement that physiotherapy, chiropractic and massage “are not medically
essential” does not reflect the relevant legal test, let alone the relevant
period of time.

[81]        
The defence relies upon cases where large claims for special damages
were significantly reduced, such as Redl v Sellin, 2013 BCSC 581,
and Costello v Rafique, 2010 BCSC 441.  In Redl, however,
the court found that there was no medical evidence that the therapies improved the
plaintiff’s physical condition, while in Costello, the treatments were
found to be excessive and unnecessary.  Neither of those findings is available
here.

[82]        
Accordingly, it follows that Mr. Derksen is entitled to an award of
special damages in the amount claimed of $27,029.20, subject, of course, to the
subrogated claims of his insurers.

H.             
Future Care Costs

[83]        
The plaintiff claims the future cost of ongoing massage therapy every
two weeks for the next two years, the present value of which is $5,597.02. 
While the law does not require such treatment to be “medically essential” to
use Dr. Greidanus’s phrase, it does require the treatment to be both “medically
justified” and reasonable: Milina v Bartsch (1985), 49 BCLR (2d) 33 (SC),
“a judgment that has withstood the test of time”: Aberdeen v Zanatta,
2008 BCCA 420 at para 41.

[84]        
In this case, the only relevant medical evidence is that of Dr. Rasool,
who wrote that Mr. Derksen’s “minor residual symptoms” should continue to
improve with “exercise, massage and time”.

[85]        
Viewing this opinion in the context of the evidence as a whole, I find
that the plaintiff has demonstrated that ongoing massage therapy, every two
weeks, is medically justified and reasonable for a further period of one year. 
Beyond that, it becomes a matter of solace.

[86]        
In these circumstances, the plaintiff is entitled to damages for the
costs of future care in the amount of $2,829.

CONCLUSION

[87]        
The plaintiff is entitled to damages flowing from the two accidents at
issue in this litigation in the following amounts:

[88]        
I will leave it to counsel to calculate the appropriate net figure for
the damages for past loss of income earning capacity.

[89]        
The plaintiff is entitled to his costs at Scale B, subject to any
applicable Offers to Settle.

“GRAUER, J.”