IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150728

Docket: M123896

Registry:
Vancouver

Between:

Daren Hancott

Plaintiff

And

Erin Barnes

Defendant

Before:
The Honourable Madam Justice Fleming

Reasons for Judgment

Introduction

[1]            
The plaintiff Daren Hancott seeks damages for injuries suffered in a
motor vehicle accident. The accident occurred on July 27, 2010 in Burnaby, BC
while the plaintiff was on his way to work. His wife was driving him to a sky
train station. They were stopped at a light when struck from behind by the
defendant who admits liability.

[2]            
The plaintiff alleges the accident caused him to suffer soft tissue
injuries to his neck, upper and mid back, his left knee and left jaw, as well
as headaches, nausea, and dizziness. He seeks non-pecuniary damages, damages
for past and future wage loss or loss of capacity, the cost of future of care
and special damages. The defendant submits the injuries suffered by the plaintiff
were not as severe or as long lasting as he claims and takes position there
should be no award for past wage loss or past and future loss of earning capacity.

[3]            
Throughout the trial both counsel referred to the plaintiff as Dr. Hancott
so I will do the same in these reasons.

Plaintiff’s Circumstances Prior to the Accident

[4]            
Dr. Hancott is 48 years old. He lives with his wife and two
children in Burnaby BC.

[5]            
He was born in Ontario, but grew up in Newfoundland. He completed a
bachelor’s degree in commerce in 1989, an MBA in 1998, and then a doctorate in
organizational management with a leadership speciality at Capella University in
Minneapolis.

[6]            
After completing his MBA, Dr. Hancott worked for a division of
Maple Leaf Foods as a project and regional manager. He then took a position in
BC with the same company as the vice president (“VP”) and general manager.
Approximately three years later, he joined the University of Phoenix located in
Burnaby. Teaching initially, he then became the campus director and completed
his doctorate at the same time. He was promoted to VP director and then VP of
Canadian operations. According to Dr. Hancott, over time the University
became very focused on the US market and a decision was made to pull out of Canada.
By then he had been with the University for about 10 years. He negotiated what
he described as a good severance package and looked for other opportunities.

[7]            
In or about 2009, the plaintiff became involved with another private,
for profit educational institution called University Canada West (“UCW”), newly
acquired by the Emanata Group. He was brought on initially as an advisor to the
president of the Emanata Group and the chair of the board. Dr. Hancott had
been with UCW for about a year when the accident occurred. He described having three
titles at that time: strategic advisor to the board, acting dean of business
and management and acting senior academic advisor. In cross-examination he
seemed to acknowledge a progression from the position of acting dean to acting
senior academic officer after the accident. His job with UCW was demanding both
before and after the accident. He estimated working between 50 to 60 hours per
week, sometimes more.

[8]            
Dr. Hancott described his general health as very good. In his 20s
he had been a competitive weightlifter, and completed triathlons as well as
marathons. In the two years prior to the accident, he said he was active – running
two to three times a week, cycling about the same amount, attending the driving
range and riding his motorcycle in nice weather. Just before the accident he
started playing floor hockey which he said was just for fun, mostly social and
not competitive.

[9]            
He acknowledged having a “neck and shoulder issue” before the accident,
but said it did not slow him down. In cross-examination, Dr. Hancott
confirmed in the year before the accident he attended 19 appointments for
chiropractic treatment as well as massage therapy on multiple occasions for right
sided neck, shoulder, and thoracic back pain. He indicated that although the
chiropractic treatments were not effective, he would likely have continued them
for a brief time regardless of the accident. He doubted that he would have
continued with massage because there was a change in staff at the clinic and
the treatments had not been all that beneficial.

The Accident

[10]        
Dr. Hancott testified that just before the accident occurred, he
was reaching for his briefcase. He said he hit his left knee in the backward
motion caused by the impact of the collision. His neck and back hit the back of
the seat and the head rest. He described himself as stunned and shocked. There
was some damage to their car, but his wife was able to drive away and he
proceeded to work by sky train

[11]        
The evidence of the defendant is that shortly before the accident, she
was stopped directly behind a car waiting at the red light. She was planning to
turn right onto Lougheed Highway. Ms. Barnes testified as the car ahead of
her inched forward, so did she. She failed to notice when the car stopped again
and rolled into it at a very low speed. At that point the defendant panicked,
hit the accelerator instead of the brake, and so a second impact occurred which
she said was slightly larger than the first. In cross-examination she agreed
the damage to her car was quite significant, costing about $6,000 to repair.
She also acknowledged the accident “irritated” a previous injury she had
suffered.

Post-Accident Complaints, Treatment and Activities

[12]        
Dr. Hancott testified that after the accident, he carried on with
his day because he was scheduled to attend meetings in Victoria and had a
flight to catch. He described becoming lightheaded and nauseous, but he was
determined to make it through the meetings. He left a little early and went to
a medical clinic that evening. The plaintiff estimated that he took four or
five days off from work and then went back in what he said was a somewhat
reduced capacity, although he did not specify the reduction and his other evidence
was that he continued to work very long hours.

[13]        
The plaintiff described himself as in constant pain, unfocused, very
frustrated, nauseous, dizzy and struggling to concentrate or sit for any length
of time after his return to work. He continued to commute by public transit
although he found the trips awful – really crowded, there was no place to sit,
and the movement made him very nauseous. He testified it took hours to recover.
He said he vomited at work on three or four occasions. He also gave evidence
that his symptoms from early on included headaches sometimes in the back of his
head and sometimes at the front, pain in the back of his neck on the upper
right side extending down into the middle of his back, cracking, popping and
difficulty chewing with his left jaw, pain in the outer part of his left knee, constant
nausea and dizziness, an overwhelming urge to throw up and insomnia. The plaintiff
testified that people close to him told him he rambled and repeated things when
he spoke. He said colleagues mentioned it a couple of times as well as family
members but he could not recall a specific incident.

[14]        
The plaintiff said he had to reduce his physical activities due to pain
and dizziness. He hired a gardener to do the yard work, although he
acknowledged in cross-examination he received the same help before the accident
because of his busy work schedule. He was able to continue performing household
chores such as laundry and cooking modifying to some extent how he completed
them because of his symptoms. He said he took six to nine months off from floor
hockey, did very little running and no biking. Once he returned to floor hockey,
he testified to attending inconsistently, due to pain from injections he was receiving
to treat his injuries. By the time of trial, he had not been for almost two
years.

[15]        
The plaintiff took a variety of mostly over found counter medications to
deal with his symptoms, including Gravol for nausea but none of them were very
helpful. His family doctor provided him with a range of therapies including
acupuncture and trigger point therapy which provided some relief. He said
injections into his jaw helped a little.

[16]        
Dr. Hancott said he pressed his family physician for referrals. He described
massage therapy and chiropractic treatments ineffective. An MRI was done. He
testified to seeing a number of medical specialists including a physiatrist, a
psychiatrist, a neurologist and an ear nose and throat specialist (ENT). Dr. Hancott
said that none of them was able to provide him with a diagnosis or treatment
plan.

[17]        
In the fall of 2010 Dr. Hancott participated in a rehabilitation
program called Karp. After six to seven sessions he sought funding for more,
but heard nothing for 12 to 13 months. In 2012 he returned to the program. After
the end of the second set of sessions, he said he noticed his flexibility had
improved, his left knee felt better and there was a “slight” reduction in his
neck, shoulder and back pain and longer time frames between episodes of pain. His
left jaw pain also improved. He testified that he was still dizzy and nauseous.
The nausea was worse in the mornings. Dr. Hancott described his dizziness
as feeling light headed and seeing black spots. He said his balance was affected
but he had not fallen.

[18]        
After completing the Karp program, the plaintiff continued to do many of
the exercises he learned there for strengthening and increasing flexibility –
between 12 to 14 of them, three or four times a week.

[19]        
In cross-examination the plaintiff acknowledged that in January or
February 2013, he developed an anal fistula that caused severe pain and a high
fever. He attended the ER screaming in pain, but was sent home and the fistula
“exploded” several days later. Since then, he has undergone three surgeries to
repair the fistula, one in the spring of 2013; the second in October 2014 and
the third in January 2015, each requiring a five to six week recovery period.
The plaintiff testified the symptoms of the condition itself included ongoing
pain from an open wound, draining and chafing.

[20]        
Dr. Dawan a specialist in physical medicine and rehabilitation
treated Dr. Hancott from July 4, 2013 to July 21, 2014. He provided the plaintiff
with facet blocks and trigger point injections as well as prolotherapy.

[21]        
Dr. Hancott also received and continues to receive injections for
treatment of pain symptoms from Dr. Taylor, a Chinese medicine specialist
and or naturopath. The plaintiff was and remains unaware of the contents of the
injections provided by Dr. Taylor. He described them as particularly
painful and requiring several days’ recovery but providing temporary relief.
The plaintiff testified he continues to endure them because they seem to be the
only thing that is “really working” and he is starting to see “slight
improvements”.

[22]        
In or about 2013, Dr. Hancott travelled to San Francisco to be
assessed by a neuropsychologist in the hope of finding some help with the
dizziness. He testified the specialist was not able to provide him with a
treatment plan.

[23]        
In November 2013, Dr. Hancott underwent an independent medical
examination conducted by Dr. Longridge an ear, nose throat specialist (“ENT”)
or otolaryngologist who specializes in tinnitus, hearing loss and dizziness. Dr. Hancott
described Dr. Longridge’s report as long and complicated. He said he could
not remember seeing a treatment plan. In fact, Dr. Longridge offered the
opinion the plaintiff would benefit from vestibular physiotherapy for balance rehabilitation
which Dr. Hancott did not pursue.

[24]        
The plaintiff testified that by the time of his examination for
discovery in March 2014 his right shoulder complaints were much improved – he said
they bothered him once or twice a week, and the pain was mild to moderate. He
described his neck pain by then as moderate, sometimes less and sometimes more.

[25]        
Dr. Hancott also testified his headaches have improved. He described
them ambiguously, as always there but coming and going. He said further his problem
with low energy was improving slightly. He said little it anything about his
experience of back symptoms over time.

[26]        
Dr. Hancott gave evidence that his dizziness, nausea and balance
problems persist to today. He said he wakes up nauseous and dizzy, making it
very difficult for him to function for several hours. Sometimes he is more dizzy
than nauseous or vice versa. According to Dr. Hancott they both vary in
intensity, but are constant. As a result, he continues to limit his activities.
He does not climb up to high places, he is not riding his bike or motorcycle, or
going to the driving range and he does very little driving. In cross-examination
he was confronted about testifying at his examination for discovery in March
2014 that his feelings of dizziness and nausea were improving. He asserted they
remained moderate and persistent at that point with the nausea improving more
than the dizziness.

Post-Accident Employment

[27]        
Dr. Hancott testified that after the accident, he told his boss Dr. Magee
Shepherd about the issues he was experiencing. He described her as very
understanding and flexible. He said he returned to work when he did and kept on
working because his doctor advised him to and because of the volume of work he
had to do, as well as his sense of obligation.

[28]        
The plaintiff testified that he took on the role of acting dean shortly
before the accident, reporting to both Dr. Magee Shepherd and the head of
the Emanata Group. He was not aware of any complaints about his performance in
that role. He was then made acting Senior Academic Officer which required him
to hire and train faculty, establish a program advisory council for each degree
program, liaise with the Ministry of Education on new program applications, and
obtain re-approval of the UCW’s programs and curriculum every five years. Dr. Hancott
successfully obtained that re-approval. In August 2011 Dr. Hancott became
an employee of the UCW, having worked up to that time as an independent
contractor. He was offered and accepted the position of Chief Administrative
Officer (CAO). In cross examination, he was reluctant to acknowledge this was a
promotion, other than “from the outside”. He stated his administrative duties
did not really change other than he lost an academic department which had been
important to him. Dr. Hancott admitted as the CAO he was responsible for
developing international target markets of great importance to UCW, but stated another
person within the Emanata Group did most of marketing for several months after
he assumed the position.

[29]        
Despite his symptoms, Dr. Hancott said he thought he was managing
at work and doing a good job. He continued to work very long hours sometimes as
many as 65 hours per week. He was not aware of any concerns about his work
performance as CAO.

[30]        
He estimated there were about 200 students attending UCW when he started
there and about four or five hundred by the time he left. In cross-examination
he indicated he was prepared to accept he was somewhat responsible for the
growth in student population.

[31]        
In the spring of 2012 Dr. Magee Shepherd resigned. In late July
2012 he met with the new acting president who raised issues about his
performances. Dr. Hancott testified that he was shocked and very
surprised. He provided no evidence about what those issues were. He said only
that after the meeting he attempted to address them for a couple of weeks and it
was acknowledged things were going well. In cross examination he agreed he had
expressed feeling undervalued and some dissatisfaction about the structure of
his position before being terminated. In particular he told the head of the
Emanata Group that he was frustrated with his plans being changed by others in
authority, leaving him with no decision having been made.

[32]        
On or about August 2012, Dr. Hancott’s employment with UCW was
terminated. The plaintiff was told it was because of restructuring and a
shortage of work. His record of employment provides the termination was due to the
latter. The plaintiff said he did not accept the reasons but took no steps to
challenge the decision because he thought he needed some time to rest.

[33]        
A few weeks later, however, he began looking for another job. Dr. Hancott
testified that he sent his resume to the New York Institute of Technology
(Vancouver Campus) (NYIT) and Simon Fraser University (SFU) several times and
he made a number of specific applications for administrative positions with the
BC Institute of Technology (BCIT) including President, VP and Director. He said
he has been short listed but has not received any job offers yet. He specified
that most of the applications have been made on-line and when he applies for a
job he does not disclose “his limitations”.

[34]        
In cross-examination Dr. Hancott confirmed that in the winter of
2013 he was hired by Yorkville University to develop an online introduction to
business course. After he prepared the course he was hired to teach it by
giving online lectures from November 2013 to January 2014.

[35]        
Dr. Hancott testified that he continues to seek employment, mostly
positions with academic institutions, but provided no more specific evidence. In
cross-examination he acknowledged that in the spring of 2014 he was working on
a book on the topic of leadership which he had been writing for five or six years.
He agreed that between 2011 and 2014 he spent three or four evenings per month
and some weekends on the project. In addition the plaintiff had been a member
of the board of directors for the Burnaby North-Seymour riding association and
has remained involved with some charitable organizations.

[36]        
In 2013 Dr. Hancott considered seeking the federal conservative
party nomination for the Burnaby North-Seymour riding. Ultimately a veteran city
councillor was nominated. In the spring of 2014 he chose to run as a candidate
for mayor of Burnaby in the fall civil election as part of the Burnaby First
Coalition. He testified he thought there was only a small chance he could win,
but he saw it as important to give the voters a democratic choice. He also
indicated he was prepared to take on the job of mayor, having worked hard all
his life and wanting to be helpful to people.

[37]        
The plaintiff’s evidence was that he struggled with election events
during the campaign because of his nausea, dizziness and pain; he worked sporadically
and for limited hours – two to three hours per day. He testified that he never
put in a long day. He took breaks and would go home and lie down. He said he was
part of a team of 15 that knew he was not feeling well, but “not all of my
issues”. When he went out knocking door to door, he chose flat streets. During
the campaign the plaintiff hosted four town hall meetings. He also participated
in a televised mayoral debate.

[38]        
The defendant relied upon video recordings of the plaintiff’s
participation in a town hall meeting on September 30, 2014 and the mayoral
debate on or about the third week of October 2014 that were viewed during his
cross-examination. The recordings show the plaintiff actively participating in
the town hall meeting, speaking articulately and confidently about the party’s
platform. The plaintiff estimated 30 to 40 people were present. The plaintiff
could not recall if he felt dizzy and nauseous during the meeting, but he said
he was exhausted after the event and went home to bed.

[39]        
With respect to the mayoral debate, the plaintiff said he took various
steps to prepare. The debate was moderated. There was no audience but it was
televised. Each candidate was called upon to respond to questions followed by an
open debate. The plaintiff testified he felt very dizzy and nauseous during the
event. He had taken pain medication because he was recovering from surgery and
was fighting an infection. He had also taken Tylenol to deal with a headache.
He arranged for his wife to drive him. Again the plaintiff presented very well.
He gave cogent answers to the questions put to him about a variety of local
issues and then actively engaged in free flowing debate with the incumbent
mayor. He testified the strength of his performance was due to well-rehearsed
answers to anticipated questions on topics for which the party had developed
platforms. Dr. Hancott said he was so exhausted by the event he went home
to bed where he spent the rest of the afternoon.

Lay Witnesses

[40]        
The plaintiff relied upon the evidence of his former supervisor Dr. Verna
Magee Shepard and Dr. Sidney Scott, a colleague from UCW.

Dr. Sidney Scott

[41]        
Dr. Scott worked at UCW from 2006 to 2013. At the time of the
accident she and the plaintiff worked in offices that were side by side and had
been colleagues for about 18 months. The location of his office moved after the
collision. She testified they saw each other many times a day in a typical
week. Dr. Scott described the plaintiff as having no difficulty with his
work duties before the accident. In fact she testified that his “political” and
interpersonal skills were the best she had ever seen. Afterwards he appeared to
be in pain, his mood changed, he could not sit still and had to stand during
meetings. She observed him drinking green tea to combat nausea. He became more
easily frustrated. Dr. Scott stated that she tried to buffer others from
his “negative energy”. She described his symptoms as “removing him from
excellence”, but provided no further details. When asked about the change(s) in
his position following the accident, she testified he was no longer responsible
for academics where he would have preferred to stay, either not acknowledging
or being unaware of his promotion. She had no knowledge of the circumstances
involved in his termination.

Dr. Verna Magee Shepard

[42]        
Dr. Magee Shepherd worked at UCW from December 2009 to March 2012. She
was the interim president at the time of the accident. She testified her office
was also located beside Dr. Hancott’s. Typically she saw him every day at
work. She described him as undergoing a very observable weight loss following
the accident and becoming very slight, although the plaintiff’s evidence is
that his weight actually increased from about 195 to 200 lbs before the accident
to 213 lbs afterward. Dr. Magee Shepherd also testified the plaintiff had difficulty
concentrating, vertigo and signs of depression without providing any specifics.
She commented that he had real trouble in the mornings with nausea and long
meetings were difficult for him to endure. He was however for the most part
able to complete tasks. She confirmed he continued to work very long hours. Dr. Magee
Shepherd struggled to recall with any certainty the plaintiff’s job titles and
various duties prior to him assuming the position of CAO about a year after the
accident. Initially she described Dr. Hancott’s job as the CAO as a change
in title, but a continuation of much of the work he had already been doing. She
ultimately agreed his responsibility for international markets was one that
came with being CAO.

[43]        
Dr. Magee Shepherd testified she had not reported any concerns
about his ability to perform the role. She confirmed he was able to complete all
of the tasks required of him satisfactorily and some of them well both before
and after the accident, although it was a struggle for him afterwards. Dr. Magee
Shepherd too had no knowledge of the circumstances surrounding the plaintiff’s
termination, having resigned from the UCW in the spring of 2012.

The Burnaby First Coalition Members

[44]        
The defendant relied upon the evidence of Dr. Hancott’s former administrative
assistant Ms. Glorina Mate and two members of the Burnaby First Coalition,
Mr. Benjamin Seebaren and Mr. Bruce Friesen, who testified to their observations
of the plaintiff during the civil election campaign.

Mr. Benjamin Seebaren

[45]        
Mr. Seebaren, a candidate for city council, was present at regular
party meetings as well as the town hall meetings during the campaign. He
recalled the plaintiff missing only one meeting toward the end because of
surgery. Mr. Seebaren testified to observing the plaintiff having “normal
discomfort” after surgery in October 2014 but not before. The plaintiff had no
trouble speaking in front of a crowd or any other apparent difficulties.

Mr. Bruce Friesen

[46]        
Mr. Friesen gave similar evidence. He was the chair of the Burnaby
First Campaign and first met the plaintiff in the fall of 2013 when the plaintiff
began to attend bi-weekly meetings. Mr. Friesen was aware the plaintiff was
seeking the federal conservative party nomination at the time. He saw Dr. Hancott
as a very capable, interesting person. Mr. Friesen described the plaintiff
as optimistic about winning the election for mayor, stating the party would not
have accepted him as their candidate if he was not going to do everything
possible to win. Mr. Friesen’s involvement with the party diminished after
Dr. Hancott was selected as their candidate to allow him to lead the
campaign. He continued to provide the plaintiff with briefings. Mr. Friesen
saw no signs of physical problems, although he said he is not all that observant.
The plaintiff did not tell him about his surgery.

[47]        
Neither Mr. Friesen nor Mr. Seebaren was aware that Dr. Hancott
suffered from nausea or dizziness.

Ms. Glorina Mate

[48]        
Ms. Mate was Dr. Hancott’s administrative assistant at UCW from
November 2011 until he left about nine months later. She confirmed the plaintiff
complained to her of feelings of dizziness and headaches from time to time, but
she was not aware of him struggling with work. Ms. Mate described the
plaintiff as very professional.

Medical Evidence

Dr. Thomas Buouassisi – ENT

[49]        
Dr. Buouassisi an ENT specialist, testified as a fact witness. He
examined Dr. Hancott on June 3, 2013 in relation to nausea and “motion
sickness” at the request of the family doctor. Dr. Buouassisi gave
evidence that Dr. Hancott told him his symptoms had worsened in the few
months prior. He suggested to the plaintiff’s family doctor that vestibular
exercises be pursued and a gastrointestinal cause for his complaints be
investigated.

Dr. Neil Longridge – ENT – Otolaryngologist

[50]        
Dr. Longridge prepared a medical report at the request of the
plaintiff dated January 30, 2014 based on an evaluation that occurred November
6, 2013. In setting out his opinion, Dr. Longridge noted the plaintiff’s
symptoms of dizziness arose subsequent to the accident and while fluctuating in
severity had been constant. In his opinion, the accident is the probable cause
of the dizziness given its onset post-accident and the absence of any other
satisfactory explanation. Based on abnormal results from some of the testing
and his examination of the plaintiff, Dr. Longridge concluded Dr. Hancott’s
balance system has been injured leaving him more vulnerable to vestibular
damage from a further injury. He noted that one of the balance tests, the
Cervical Vestibular Evoked Myogenic Potentials, found abnormality on both sides
from which he concluded “the prognosis” must be guarded. This was not well
explained or clarified in his report or his testimony. Otherwise Dr. Longridge’s
predictive opinion was as follows at p. 9:

My experience with dizziness is
that if it present for two years, in my opinion, it I likely to be present on a
long-term, permanent basis.

[51]        
He suggests in other words the plaintiff’s dizziness would likely be
present long term. Elsewhere in his report he also writes it is probable the
plaintiff will be more likely to have difficulties with balance and
unsteadiness as he ages.

[52]        
Dr. Longridge also concluded the plaintiff suffers from visual
vestibular mismatch, a form of visually induced dizziness which occurs
following trauma. In the plaintiff’s case, his dizziness was worse in busy shopping
malls or grocery stores which he therefore avoids. He provided no opinion about
the potential impact of Dr. Hancott’s dizziness on his ability to work. Dr. Longridge’s
other opinions were that the accident probably caused bilateral tinnitus for
the plaintiff that persisted for three to six months and slight hearing loss in
the plaintiff’s left ear although his hearing remains within the normal range.

[53]        
During cross-examination Dr. Longridge confirmed the plaintiff
described his dizziness as “a rocking lightheaded black spots like he may pass
out feeling and a rocking sensation on the Skytrain”, a reasonable explanation
in his experience, for a person having problems with the balance system of the
inner ear and dizziness. Dr. Longridge explained that trying to convey the
internal feeling of dizziness is like verbalizing the “unverbalizable”. According
to Dr. Longridge the plaintiff completed a questionnaire during the
evaluation in which he indicated: “constant good day 50% of the time”, which
the doctor interpreted as 50% of the time is a good day, then “60 to 65 to 75
— 70 percent of the time it is more intrusive” which he did not interpret and
is difficult to understand. Dr. Longridge also testified the plaintiff
told him his dizziness is constant but fluctuates in severity. The doctor then
suggested the plaintiff’s dizziness ranged from mild to substantially
incapacitating. He clarified the latter was an inference he was drawing and not
something the plaintiff said, nor does that language appear in his report. The
questionnaire completed by the plaintiff is not in evidence.

[54]        
Dr. Longridge strongly denied the defendant’s suggestion that the
plaintiff’s anal fistula could explain his symptoms of dizziness.

Dr. Pankaj Dhawan – Physical Medicine and Rehabilitation Specialist

[55]        
Dr. Dhawan, as set out above is a specialist in rehabilitation
medicine who treated the plaintiff from July 2013 to July 2014. In his medical
legal report dated August 2, 2014, he noted his initial impressions of Dr. Hancott
were that he had suffered soft tissue injuries to the cervical facets and
possibly the thoracic spine, and instability of the ligaments could not be
ruled out.

[56]        
At the first appointment, the plaintiff had full cervical and thoracic
range of motion. He reported pain in the right thoracic area, but it was not
tender to touch. He was tender over the right second to fifth cervical facet
joints and palpation triggered his headaches.

[57]        
Dr. Dhawan treated the plaintiff initially with injections into the
right second to seventh cervical and first to third trapezoidal facet joints with
anesthetic alone and trigger point injections in the right trapezius and
rhomboid muscle groups. The plaintiff reported no improvement and Dr. Dhawan
proceeded with the same facet block injections and prolotherapy over the
interspinous ligaments in the same distribution. This combination of injections
was repeated three more times. According to Dr. Dhawan the plaintiff
reported the injections helped each time; he was feeling more stable with
reduced pain and larger periods between flare ups of pain.

[58]        
After an appointment in November 2013, the plaintiff did not see Dr. Dhawan
again until March 2014. At paragraph 24 of his report, he wrote the following
in part:

I saw him in follow up on March
10, 2014. He reported improvement. He told me he was doing better than he had
been in the past. He told me he had definite improvement with prolotherapy. His
neck cracked less and he felt more stable about his neck. He had more injections
done locally by the naturopath, Dr. Taylor, which also helped him as well
to some extent. He had been exercising regularly and was feeling more positive.
He was planning to enter politics and he was excited about that. He was
considering either local city or provincial or federal level politics. He was
communicating better. He was more of a reflective listener. He had less
word-finding difficulties and he felt less clouded in his cognition … He was
still getting some dizziness but he was getting better…

[59]        
Dr. Dhawan’s last appointment with the plaintiff was on July 21,
2014. At paragraph 25 of his report he describes the plaintiff’s circumstances
at that time as follows:

He had solidified his plan to
enter more local, city council level politics. He was slowly improving. He was
still having occasional dizziness and nausea. He was still having naturopathic
injections by Dr. Taylor which were helping. He was exercising,
stretching, watching his posture and living an active lifestyle, hiking
regularly. His mood was stable. Dizziness was reduced. He had normal range of
motion.

[60]        
In cross-examination, Dr. Dhawan confirmed the plaintiff reported
the information about his progress as described in his report.

[61]        
Dr. Dhawan’s opinion was that by the end of his treatment, the
plaintiff was showing good improvement from his soft tissue injuries. Dr. Dhawan
expected him to continue to make improvements and to be symptom free in a few
months to one year. He did not arrange for any further follow up. His view also
was the plaintiff should be able to “continue on” with either his
administrative job or enter politics as planned. Dr. Dhawan deferred to Dr. Longridge
regarding the prognosis for Dr. Hancott’s dizziness.

[62]        
In cross-examination Dr. Dhawan confirmed the plaintiff told him at
the first appointment that he had no past medical or surgical history other
than a colonoscopy. Later Dr. Dhawan received records of the plaintiff’s
chiropractic and massage therapy treatment for pain in the right side of his
neck and thoracic area in the year prior to the accident. In cross-examination
he said it was possible that the plaintiff’s post-accident complaints of pain
and discomfort in those same areas could have been a continuation of his pre-accident
complaints. He also agreed there was no objective evidence of a soft tissue
injury to the plaintiff’s cervical faucets or ligamentous instability.

Dr. Paul Bishop – Orthopaedic Surgeon

[63]        
Dr. Bishop, is a medical doctor and a professor in the Orthopaedics
Department, Spine Division at the University of British Columbia. He completed
a PhD in pathology focusing on diseases of the spine and has extensive clinical
experience assessing and treating patients with acute and chronic spinal pain. His
medical report prepared at the request of the defendant is dated November 10,
2014, the same day he assessed the plaintiff.

[64]        
At the time Dr. Hancott complained of symptoms involving his neck,
upper back and mid back as well as frequent headaches. He described his headache
symptoms as involving an intermittent dull aching pain that was sometimes sharp
and pounding. Similarly he described his neck symptoms as a constant dull
aching pain that was sometimes sharp in character. He estimated the intensity of
his neck, upper back and mid back symptoms in the 30 days prior ranged from five
to seven out of ten. He also reported difficulty concentrating, feeling mixed
up in his words and being tired all the time.

[65]        
With respect to pre-existing problems, Dr. Bishop states Dr. Hancott
denied any past history of persisting neck, upper back or mid back symptoms. He
reported suffering injuries to those areas in previous accidents from which he
had fully recovered prior to this one.

[66]        
Dr. Bishop found the plaintiff’s range of motion in his cervical
spine was globally restricted in all planes, but no associated pain or
tenderness with either the range of motion testing or palpation. The range of
motion in his right shoulder was full and pain free in all planes.

[67]        
Dr. Bishop’s report sets out a diagnosis of chronic non-specific
neck, upper back and mid back pain without any objective basis. With respect to
the cause of the injuries, he wrote: “It is not unreasonable to conclude that
the patient suffered soft tissue injuries to his neck, upper and mid back as a
result of his involvement in (the Accident)”. He then stated that soft tissue injuries
of this nature heal within 12 to 16 weeks and therefore do not provide an
explanation for the spine related symptoms the plaintiff reported after that
period.

[68]        
Among the medical records Dr. Bishop reviewed was a radiologist’s
report regarding an MRI scan of Dr. Hancott’s cervical spine dated
September 21, 2012. He summarized the report as describing mild, multilevel
degenerative changes consistent with a longstanding degenerative process and
inconsistent with acute post traumatic change. Neither the scan nor the
radiologist’s report is in evidence. Dr. Bishop’s report also reviewed in
some detail the report of Dr. Dhawan. In his opinion, there was
“absolutely no objective evidence” that any of the plaintiff’s symptoms were
arising from “cervical facet dysfunction or ligamentous instability”. He was
also critical of Dr. Dhawan’s interim recommendations, namely the
continuation of naturopathic injections, as well as his own use of facet block
and prolotherapy injections, which Dr. Bishop opined were without proven
value and highly inconsistent with the standard of care.

[69]        
Dr. Bishop recommended the plaintiff undergo a nuclear medicine
bone scan (SPECT) to rule out the presence of an underlying active inflammatory
process involving his spine. He explained that a SPECT is readily available and
would clarify whether the degenerative changes in his spine described in the radiologist’s
report had been rendered symptomatic by the trauma of the accident.

[70]        
There is no evidence the plaintiff underwent a SPECT.

[71]        
In cross-examination Dr. Bishop agreed that pain is a subjective
experience.

Mr. James Blatchford – Forensic Accountant

[72]        
Mr. Blatchford is a forensic accountant retained by the plaintiff
to provide a report that assesses his past and future loss of wages and earning
capacity. The report is summarized further on in these reasons.

Causation

[73]        
The burden is on a plaintiff to prove causation. He must establish the defendant’s
negligence caused both his injuries and the resulting losses (e.g. non-pecuniary
loss or lost wages): “The former is concerned with establishing the existence
of liability; the latter with the extent of that liability” (Blackwater v.
Plint, 2001 BCSC 997, at para. 363).

[74]        
The general test used to determine causation is the “but for” test.
Accordingly, Dr. Hancott bears the onus of proving, on a balance of
probabilities, that “but for” the defendant’s negligence, his injuries would
not have occurred: Athey v. Leonati, [1996] 3 S.C.R. 458; and Blackwater.
The test for causation is not to be applied too rigidly and is to be contrasted
with the more exacting standard that approaches scientific certainty in the
medical context: Snell v. Farrell, [1990] 2 S.C.R. 311; and Midgley
v. Nguyen, 2013 BCSC 693 at para. 172. It is essentially a practical
question of fact which can best be answered by ordinary common sense (Athey
para. 16).

[75]        
If causation for injuries is established, the defendant is liable for all
of the losses that flow from them. Such losses are those which the plaintiff proves
on a balance of probabilities would not have occurred “but-for” the defendants’
negligence (See: Blackwater at para. 78; and Smith v. Knudsen,
2004 BCCA 613, at para. 26).

Credibility

[76]        
I observe at this stage the medical experts who evaluated Dr. Hancott
relied on his descriptions of his history and symptoms to varying degrees in
coming to their opinions.

[77]        
The weight to be given to those experts opinions, to the extent they are
based upon his subjective reporting, ultimately turns on the court’s assessment
of the credibility and reliability of Dr. Hancott’s evidence at trial.

[78]        
As in any case where there are few objective findings of continuing
injury, I must be “exceedingly careful” when I examine Dr. Hancott’s
evidence: Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), at 397 and
399

[79]        
The factors to be considered when assessing credibility were summarized
in Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296, at para. 186.
They include the firmness of the witness’s memory, the ability of the witness
to resist the influence of interest in modifying his recollection, whether the
witness’s evidence harmonizes with independent evidence that has been accepted,
whether the witness changes his evidence during direct examination and
cross-examination (or between examination for discovery and trial) or is
otherwise inconsistent in his recollections. Other factors are whether the witness’s
evidence seems generally unreasonable, impossible or unlikely, and the
witness’s demeanour. At bottom, the question is whether the witness’s evidence
is consistent with the probabilities affecting the case as a whole.

[80]        
The starting point in a credibility assessment is to presume
truthfulness: Van Halteren v. Wilhelm, [1997] B.C.J. No. 1959,
aff’d 2000 BCCA 2, at para. 207.

[81]        
The defendant challenges the plaintiff’s credibility. She takes issue
with his failure to testify about important events during direct examination or
to discuss them with Dr. Dhawan his treating specialist. Examples of those
events include his recent job with Yorkville University and his pre-accident
history of treatment for right sided neck shoulder and back pain. She also
complains he did not inform his own economic expert Mr. Blatchford about
his teaching position with Yorkville University. Accordingly, his report sets
out the plaintiff had no income in 2013. The defendant further argues the
plaintiff failed to inform Dr. Longridge about the full extent of his
physical activities.

[82]        
Conversely the plaintiff takes the position he provided credible,
reliable evidence without any attempt to exaggerate his symptoms or injuries.

[83]        
I agree the plaintiff did not appear to exaggerate during the course of
giving evidence. He was calm, polite and restrained throughout his testimony. He
seemed believable. Not infrequently, however, his answers lacked detail or were
ambiguous, including many of those relating to the nature and extent of his symptoms
overtime.

[84]        
On occasion during cross-examination, the plaintiff’s answers were also
somewhat unreasonable, not in tone but in content. He testified, for example,
to gaining weight after the accident. He then resisted acknowledging that Dr. Magee
Shepherd must have been mistaken when she testified that he had lost a
significant amount of weight during that time, his answers becoming almost coy.
Another example of this tendency is found in some of his responses to the
defendant’s questions about his decision to run for mayor of Burnaby:

Q So you recognized that there was a chance that you — that
you could win.

A Small, but yes.

Q. You recognized that the position of being mayor of Burnaby
is a position of high responsibility?

A. From what I can see, no.

Q. And sir, you would agree that the mayor of Burnaby,
through the way he or she does his or her job can affect the lives of thousands
of people?

A I’d say more council that the mayor, but in some ways, yes.

Q. And the job of mayor of Burnaby, that’s a demanding job
that requires the office holder to work long hours?

A I’m not sure. I’ve never been
in that position.

[85]        
Although I share the defendant’s concern about the plaintiff not
discussing his pre-accident treatment for right sided neck, shoulder and back
pain with Dr. Dhawan, particularly given his role as a treating
specialist, I am more concerned by the inconsistency between the plaintiff’s
evidence at trial and Dr. Dhawan’s account of the improvements he reported
in his condition. I identify this concern bearing in mind the comments of Mr. Justice
Smith in Edmondson v. Payer, 2011 BCSC 118, aff’d 2012 BCCA 114
regarding the difficulties with statements of a plaintiff contained in a clinical
record at para 34 and 35. As outlined above, Dr. Dhawan’s report provides that
in March 2014 the plaintiff advised him about how his condition had improved.
Significantly, he reported he was still getting some dizziness but he
was getting better. In July 2014, Dr. Dhawan writes the plaintiff was
still having occasional dizziness and nausea and his dizziness was reduced.
At trial, the plaintiff described his symptoms and injuries much more
negatively including his dizziness and nausea, both of which he said were
constant and made it difficult for him to function for several hours each
morning.

[86]        
Dr. Hancott did not suggest that Dr. Dhawan’s report
inaccurately described what he reported during their appointments. Nor was there
any acknowledgment of the inconsistency between the report and his evidence at
trial. Instead the plaintiff relies upon Dr. Dhawan’s expert opinion.

[87]        
I am left to conclude that I must approach the plaintiff’s evidence with
some caution.

[88]        
The defendant also submits the evidence of Drs. Magee Shepherd and Scott
is not reliable. Given Dr. Magee Shepherd’s inaccurate evidence about the
plaintiff’s “very observable” weight loss, the defendant argues her testimony
in general ought not to be believed. She makes much the same submission about Dr. Scott’s
evidence arising from her testimony about office locations which conflicted
with that of the plaintiff’s. Accepting the plaintiff’s evidence about his
weight gain which to some extent was confirmed by Dr. Dhawan, I conclude Dr. Magee
Shepherd could not have observed the plaintiff suffering a loss of weight after
the accident thus affecting the reliability of her evidence more broadly. I also
agree with the defendant’s other submission that both witnesses gave rather vague
evidence about the negative changes to the plaintiff each observed after the accident.
I agree. To the extent their observations were consistent however I find the
testimony of Drs. Magee Shepherd and Scott to be reliable but lacking
specificity. I am not concerned that either provided anything other than their
honest recollections of working with the plaintiff before and after the
accident.

Adverse Inference

[89]        
The defendants submits the court should draw an adverse inference
because the plaintiff reviewed transcripts of the testimony of Drs. Shepherd,
Dhawan and Longridge given by way of video deposition prior to trial, and was
present for the testimony of Dr. Scott before giving his own evidence. The
defendant relies on Ram v. Rai, 2012 BCSC 1718, where the plaintiff testified
after listening to the evidence of her mother and sister. Madam Justice Holmes
said as follows at para. 36:

A plaintiff is free to call her
witnesses in the order she and her counsel choose. However, I agree with the
defendants that for a plaintiff to testify after hearing other witnesses
testify may affect the weight that can be given to the plaintiff’s own evidence
about matters the earlier witnesses addressed. It may be difficult for the
trier of fact to be confident that the plaintiff’s account of events is her
own, and is not coloured by or adapted to the preceding evidence.

[90]        
Despite the risk the plaintiff here may have adapted his evidence, I am
not sufficiently concerned to draw an adverse inference, noting in particular
the inconsistencies between the evidence of the plaintiff and that of the witnesses
whose testimony he reviewed or heard prior to testifying.

[91]        
The defendant also asks that an adverse inference be drawn from the
plaintiff’s failure to call his wife and other collateral witnesses to testify
about his condition after the accident and in particular after he lost his
employment in August 2012. In McIlvenna v. Viebig, 2012 BCSC 218, Mr. Justice
Sigurdson summarized the doctrine in part as follows with reference to the
Canadian Encyclopedic Digest, CED (West. 4^th), vol 26, title 61, at para. 71
(quote from Harvey J.):

Similarly the Canadian Encyclopedic Digest, CED (West. 4^th),
vol 26, title 61, describes when an adverse inference should be drawn and in
particular exactly (at ss. 199 – 200) what the inference is that is drawn
(at ss. 199-200):

199 While the parties to a civil action have complete
discretion regarding which witnesses to call, there are dangers in not
advancing certain testimony. Where the plaintiff chooses not to tender
important witnesses, it may result in a failure to meet the burden of proof. In
a significant early decision, the Supreme Court of Canada indicated that the
failure to call a witness with potentially important evidence to a party’s case
was grounds for the trier of fact to presume that he evidence would have been
adverse in nature

200 More recently, the courts have qualified this approach,
recognizing that an adverse inference should not arise in every case where a
party failed to call a witness with evidence material to its case. Advances in
disclosure and exchange of documents between parties mean that both sides now
have equal access to information and can call witnesses who might assist them. Today
the adverse inference is discretionary and should not be drawn unless it is
warranted in all the circumstances. In particular, the judge should consider
whether: there is a legitimate explanation for failing to call the witness; the
witness is within the exclusive control of the party or is equally available to
both parties; and the witness has key evidence to provide or is the best person
to provide the evidence in question.

(Emphasis added in McIlvenna.)

[92]        
Is drawing an adverse inference from the plaintiff’s failure to call his
wife and other post-employment collateral witnesses warranted in all the
circumstances here? I agree with the defendant that the plaintiff’s wife was in
the best position to provide material evidence about the impact of the
plaintiff’s injuries on his day to day life, apart from him. The plaintiff
provided no explanation for his decision not to call her. With respect to other
potential collateral witnesses he complained about the delay that would have
been involved in “calling everyone under the sun” and described himself as a
private person who prefers to keep things to himself. Throughout the trial the
plaintiff was critical, frankly unduly so, of the defendant for what he saw as gratuitous
attempts to extend the length of the trial. He urged me to find his evidence
credible and reliable based on the “big picture”: Why would an always gainfully
employed, hardworking person stop working unless significantly injured. I was
left with the strong impression that the plaintiff and his counsel simply saw
it as unnecessary to rely upon the evidence of collateral witnesses, including
the plaintiff’s wife, to prove his claim. In these circumstances I am not
prepared to infer their evidence would have been adverse to his claim, but it
may well be that choosing not to do so, has negatively affected his ability to
meet the burden of proof in light of the limits of his own evidence and my
assessment of his credibility.

What Injuries Did the Accident Cause to the Plaintiff?

[93]        
In his amended notice of claim the plaintiff alleged the defendant’s
negligence caused a number of injuries including some about which there was
very little if any evidence. Those injuries include post-concussion syndrome, temporomandibular
joint (TMJ) injury, and insomnia which I turn to consider first.

[94]        
In his evidence the plaintiff said he had problem with word finding or
using incorrect language after the accident. He did not complain of any other
cognitive symptoms other than brief references to feeling foggy. There is no
medical evidence before me that would indicate the plaintiff suffered from a
concussion or any cognitive difficulties as a result of the accident. I am
aware that Dr. Bishop’s report reviews the records and reports of a number
of other practitioners, among them a form of report prepared by the plaintiff
family doctor which referred to a concussion and slow thinking. In addition Dr. Dhawan
comments in March 2014 the plaintiff was having less word finding difficulties
and felt less clouded in his cognition. He provides no opinion on those issues.

[95]        
During his testimony, the plaintiff was unable to point to any specific
instances in which he struggled with language. He said that it is something the
people close to him had commented upon. In cross examination a suggestion was
made that the issue may have been commented upon by one of his superiors in a
memo from which I can derive nothing.

[96]        
The plaintiff was an articulate witness, who displayed obvious
intelligence. He also presented this way during the recorded campaign events in
2014 that are in evidence. To the extent he continues to assert the accident
caused him to suffer any injury that impacted his cognitive function, I
conclude the plaintiff has not proven he suffered from post-concussion syndrome
or any difficulties with speech or language as a result.

[97]        
With respect to a TMJ injury, the plaintiff testified that after the
accident his left jaw was cracking and popping and he had difficulty eating and
chewing. He said nothing further about jaw symptoms other than by the summer of
2012 his left jaw as well as his left knee were notably improved. He then said,
“they were still bothering me but it was less bothersome and more manageable”. The
only other evidence he gave in relation to his jaw was that he received
injections to the area. I note Dr. Bishop’s report indicates the plaintiff
told him he saw a dentist regarding his complaints of jaw pain but the symptoms
were “not a major pain now” and he controls his symptoms by eating soft foods. He
did not testify to these circumstances. There is no medical evidence the plaintiff
has been diagnosed as suffering a TMJ injury. I accept the accident caused the
left jaw symptoms he described in his evidence but conclude any remaining
symptoms are not significant.

[98]        
The plaintiff also testified to suffering from insomnia soon after the
accident which he described as only sleeping for four or five hours each night
on a “pretty constant basis”. After that he said little if anything about sleep
difficulties. Although Dr. Bishop’s report indicates Dr. Hancott
reported ongoing sleep difficulties, he did not give this evidence at trial.
Based on the evidence, I find that accident caused the plaintiff some loss of
sleep.

Right Sided Neck, Shoulder and Back Pain

[99]        
The plaintiff alleges he suffered and continues to suffer from ongoing right
sided neck, shoulder and back pain as a result of the accident. The defendant
argues any such symptoms must have been mild because they did not prevent him
from working long hours for two years post-accident and he was able to return
to floor hockey within less than a year.

[100]     She points
out that Dr. Bishop opined and Dr. Dhawan concurred there is no
objective evidence to support his diagnosis that the plaintiff’s suffered soft
tissue injuries to the cervical facets or the thoracic spine, or ligamentous
instability. She also suggests the plaintiff’s symptoms may have been affected
by degenerative changes to his spine identified in an MRI. In addition, the
defendant submits, the accident aggravated the plaintiff’s pre-accident right
neck, shoulder and back complaints.

[101]     Both Dr. Bishop
and Dr. Dhawan agreed the MRI findings were consistent with a longstanding
degenerative process. Dr. Bishop also said they were inconsistent with
acute, focal changes following trauma. Absent medical evidence about whether in
fact the degenerative changes were made symptomatic by the accident or were
likely to or become symptomatic in any event, I am not prepared to reach either
conclusion. I will discuss further the significance of the plaintiff’s pre-existing
right sided neck and back symptoms below in the context of his claim for non-pecuniary
damages.

[102]     Dr. Bishop
does not dispute the accident caused soft tissue injuries to the plaintiff’s neck,
upper and mid back.

[103]     Given the
plaintiff’s evidence with respect to the pain he experienced in his neck,
shoulder, upper and mid back shortly after the accident, and the opinions of Dr. Dhawan
and Dr. Bishop, I find the accident caused soft tissue injuries to those
areas.

[104]     The extent
and duration of the pain resulting from his soft tissue injuries is more
difficult to determine. I am not prepared to conclude they must have been short
lived based upon Dr. Bishop’s bore assertion that all soft tissue injuries
heal within 12 to 16 weeks. I have no trouble accepting that pain arising from
such injuries may well continue after physical healing is expected to occur.
Again Dr. Bishop’s diagnosis was of chronic pain without any objective
basis.

[105]     The
plaintiff testified that by the summer of 2012 there was a slight reduction in
his neck, shoulder and back pain and longer time frames between episodes of
pain. He did not provide evidence however about how often the episodes of pain
occurred or how severe they were. His only other testimony regarding the
progression of these symptoms was that his shoulder was much improved by March
2014, meaning he had mild to moderate pain in the area once or twice a week. He
described his neck pain by then as “moderate”, sometimes less, sometimes more:
vague evidence in my view. The plaintiff also testified about the pain he
experienced during the mayoral campaign but he did not specify its location, intensity
or frequency except to say that it was different from the pain caused by the
anal fistula. After October 4, 2014, in addition to any ongoing symptoms
arising from his injuries, he also recovering from surgery and fighting an
infection.

[106]     The
plaintiff testified he continues to receive very painful injections to relieve pain
symptoms but again he did not specify the location, frequency, or severity of
the pain. He asks me to infer from his willingness to undergo such treatment
that his complaints of pain are credible.

[107]     As set out
above, by July 2014 Dr. Dhawan regarded the plaintiff‘s soft tissue
injuries as showing good improvement. He expected Dr. Hancott to be
symptom free within a few months to one year and did not recommend any further
treatment. He had normal range of motion both at the outset and the conclusion
of Dr. Dawan’s treatment.

[108]     When the
plaintiff was examined by Dr. Bishop about five months later, he
complained of much more significant neck, upper back and mid back symptoms. The
account he gave as set out in Dr. Bishops report is fair more detailed
than his evidence at trial which included a negative, but vague account of his
current level of pain.

[109]     Again, the
plaintiff did not suggest that Dr. Dhawan mischaracterized his statements
to him about improvements in his condition as set out above, nor did he assert
that his neck shoulder and back symptoms worsened after the summer of 2012 or
after July 2014. I have considered whether the plaintiff’s detailed account of
his symptoms to Dr. Bishop likely reflects the thoroughness of his
interview as compared to that of Dr. Dawan; however in my view an
inconsistency remains between the two accounts; in addition to the
inconsistency between what he told Dr. Dhawan and his evidence at trial.

[110]     In all of
the circumstances, I find the pain and discomfort arising from the soft tissue
injuries to the plaintiff’s neck, right shoulder and back were not
insignificant but never severe enough to prevent him from working very long
hours. Those symptoms improved over time and by the Summer 2012 if not before, the
pain was less intense and occurred at less frequent intervals. By July 2014 if
not earlier the pain he continued to experience was reduced to the point he was
enjoying an active lifestyle. I am not able to accept his evidence regarding
the pain and discomfort he endured during the 2014 mayoral campaign was as he
described. I find that any ongoing pain the plaintiff continues to experience
is not significant.

Headaches

[111]     The
plaintiff testified that he experienced headaches sometimes in the back of his
head and sometimes in the front soon after the accident. Although he described
ongoing headaches in some detail to Dr. Bishop, the plaintiff’s only other
testimony on this point was very vague – although they have improved they are
“always there” and “continue to come and go”. Accordingly, while I accept the
accident caused the plaintiff to some suffer headaches, I am not able to
conclude they have been severe, remain frequent, or had a significant impact on
his ability to function.

Dizziness and Nausea

[112]     The
plaintiff’s evidence is that dizziness and nausea have been the most enduring
and difficult symptoms resulting from the accident. He described feeling
nauseous and lightheaded during meetings he attended shortly after the
accident. Once he returned to work four or five days later, he specified that
he felt constant nausea, dizziness and an overwhelming urge to throw up which
he did three or four times at work. He stated his dizziness, nausea and balance
problems persist to today. According to the plaintiff, he wakes up nauseous and
dizzy, making it difficult for him to function for several hours. Although both
vary in intensity, he says both are constant. He testifies he has and continues
to rely on Gravol to treat the symptoms.

[113]     The
defendant makes much of the apparent absence of dizziness complaints in the
plaintiff’s clinical records until sometime after the accident, but those
records are not in evidence.

[114]     Although I
have concerns about the credibility of the plaintiff, I accept his evidence
that he experienced both dizziness and nausea after the accident. He mentioned
his dizziness to Ms. Mate. Both Drs. Scott and Magee Shepherd were aware
he experienced nausea or dizziness (vertigo) after the accident. Dr. Longridge
found Dr. Hancott’s description of his dizziness consistent with the
reasonable difficulties patients generally have in articulating the experience.

[115]     The
defendant disputes Dr. Longridge’s opinion that the probable cause of the
plaintiff’s dizziness is the accident, critical of the testing results he
relies upon in coming to his opinion. I am not persuaded by those criticisms
and conclude Dr. Longridge appropriately interpreted and relied upon the testing
results, along with other factors in determining the plaintiff’s balance system
was injured in the accident, causing dizziness. I also accept his opinion that
the accident caused the plaintiff visual vestibular mismatch which made his
dizziness worse in some busy places. Finally I accept his opinion that the
accident caused the plaintiff’s complaints of tinnitus for three to six months
after the accident and a slight hearing loss in the left ear, although his
hearing remains normal.

[116]     The more
difficult question is determining the extent of the plaintiff’s dizziness and
nausea. It is not my impression that Dr. Longridge’s opinion about the
plaintiff’s dizziness depends upon that his report that the dizziness was
constant and or severe. Common sense dictates that symptoms of constant and significant
if not intense dizziness and nausea would have prevented the plaintiff from
working as he did for 50 to 60 hours each week and more for two years after the
accident. Although Dr. Longridge’s report of January 2014 seemed to offer
the prognosis that Dr. Hancott’s dizziness was likely permanent, a few
months later, in March 2014, the plaintiff told Dr. Dhawan he was still
experiencing some dizziness but he was getting better. In July 2014 he
reported he was still having occasional dizziness and nausea but they
were reduced.

[117]     In
addition to the inconsistency between the plaintiff’s evidence at trial and
what he reported to Dr. Dhawan regarding these symptoms, the plaintiff’s
decision not to engage in the vestibular physiotherapy recommended by Dr. Longridge
also leads me to conclude his dizziness was no longer significant, constant or
unimproved by the time of his report. Dr. Longridge identified vestibular
physiotherapy – aimed at increasing tolerance for the condition by habituating
a person to symptoms of dizziness – as the only available treatment for
dizziness. He described it as helpful to about half of patients. The plaintiff
testified that ongoing dizziness and nausea have continued to make it very
difficult for him to function. Characterizing himself as almost desperate, he indicated
he has gone to great lengths to find an explanation and treatment for his
dizziness, including attending a neuropsychologist in California. If his symptoms
were and continue to be as he described in his evidence at trial, I am at a
loss to understand why he did not participate in vestibular physiotherapy
therapy. I say that keeping in mind his bare submissions as to its high cost.

[118]     In my view
the only reasonable inference to draw in all of these circumstances is that the
plaintiff’s dizziness and nausea were never as severe as he described and his
dizziness in particular had improved by the time Dr. Longridge made his recommendation
or soon thereafter. Consequently, the plaintiff did not regard the vestibular physiotherapy
as necessary.

[119]     I conclude
therefore the accident caused the plaintiff to suffer ongoing, but not severe
symptoms of dizziness and nausea that did not prevent him from working more
than full time up to August 2012, and were much improved by July 2014 at which
point the plaintiff experienced only occasional dizziness and nausea to a
modest degree.

Damages

[120]     The
essential purpose of damages is to restore as best as possible with a monetary
award an injured plaintiff to his original position, that is, the same position
he would have been in had the negligence not occurred: see Athey from paras. 31
– 36.

[121]     A
fundamental principle in the assessment of damages is that the defendant must
take the plaintiff as she finds him. A plaintiff whose pre-existing physical
condition makes him more vulnerable to sustaining injury is to be compensated
for the entire extent of the injury caused by the defendant’s negligence. It is
no answer for a defendant to say that the plaintiff would have suffered less
injury or a different kind of injury or no injury at all if he had been less
susceptible or vulnerable. At the same time, the defendant is not required to
put the plaintiff in a better position than he would have been in but for the
accident and compensate the plaintiff for the effects of a pre-existing
condition which the plaintiff would have experienced anyway.

Failure to Mitigate

[122]     The
defendant argues Dr. Hancott failed to mitigate his losses, by not
complying with the recommendations of Dr. Buonassisi and Dr. Longridge.

[123]     It is well
settled that a plaintiff in a personal injury action has a positive duty to act
reasonably in mitigating his losses: Chiu v. Chiu, 2002 BCCA 618 at para. 57.
However once the plaintiff has proved the defendant’s liability for his
injuries, to succeed in a mitigation defence, the defendant has to show the
plaintiff acted unreasonably and that reasonable conduct would have reduced or
eliminated the loss.

[124]    
In Gregory v. Insurance Corporation of British Columbia, 2011
BCCA 144 [Gregory], the Court outlined a subjective/objective mitigation test at para. 56:

…whether the reasonable patient, having all the information
at hand that the plaintiff possessed, ought reasonably to have undergone the
recommended treatment. The second aspect of the test is “the extent, if any to
which the plaintiff’s damages would have been reduced” by that
treatment

[Emphasis in original.]

[125]     Dr. Buonassisi,
an ENT, testified as a fact witness only. The clinical records he kept
regarding the one visit he had with the plaintiff are not in evidence. Although
his testimony establishes he recommended to the plaintiff’s family doctor that
a gastrointestinal cause for his nausea be investigated, there is no medical evidence
of the extent to which compliance with the recommendation would have reduced
the plaintiff’s loss. Accordingly this aspect of the mitigation defence cannot
succeed.

[126]     Turning to
the plaintiff’s failure to comply with Dr. Longridge’s recommendation that
he undergo vestibular physiotherapy, the relevant evidence is summarized above.
In submissions the plaintiff argued vestibular physiotherapy is expensive and
after two years it is not that effective. There is no evidence as to the cost
of the treatment. The suggestion as to its limited efficacy after two years, I
assume, the plaintiff draws from Dr. Longridge’s opinion that the damage
to the plaintiff’s inner ear resulting in dizziness is likely permanent given
it has persisted for over two years. It was in the context of that opinion
however that Dr. Longridge offered the recommendation.

[127]     In
determining whether the plaintiff has failed to mitigate, the question to be
answered is what would be expected of a reasonable person in the circumstances
having regard to the plaintiff’s medical condition at the material time and the
advice given concerning treatment. Having found the plaintiff’s symptoms of
dizziness were not as serious as he described and were resolving by the time of
Dr. Longridge’s report and only occasional by July 2014, I find the
vestibular physiotherapy would likely have had little impact on the plaintiff’s
recovery. Had the plaintiff’s symptoms of dizziness been as severe as he
described and persisted as predicted by Dr. Longridge, I would have
concluded the plaintiff had failed to mitigate.

Should the plaintiff’s award of damages be reduced owing to pre-existing
soft tissue injuries to his neck, shoulder and upper back?

[128]     The
defendant submits if the court finds the defendant is responsible only for an
aggravation of pre-existing soft tissue injures to the plaintiff’s neck,
shoulder and upper back, then he should be granted an award in the range of
$35,000.

[129]     Where
there is a measurable risk that a pre-existing condition would have resulted in
a loss to the plaintiff in the future without the defendant’s negligence, then
that risk of loss must be taken into account in assessing certain heads of
damages and serves to reduce the award (Athey at para. 35).

[130]    
As explained in T.W.N.A. v. Canada (Ministry of Indian Affairs),
2003 BCCA 670 at para. 48, a measurable risk need not be proved on a
balance of probabilities:

Whether manifest or not, a
weakness inherent in a plaintiff that might realistically cause or contribute
to the loss claimed regardless of the tort is relevant to the assessment of
damages. It is a contingency that should be accounted for in the award. Moreover,
such contingency does not have to be proven to a certainty. Rather, it should
be given weight according to its relative likelihood.

[131]     Here the
plaintiff acknowledged having a “neck and shoulder issue” before the accident
but said it did not slow him down. The pre-accident massage therapy records
dating from July 2009 to March 2010 indicate Dr. Hancott sought treatment
for numbing and tingling pain on the right shoulder blade up to the base of the
neck. He received 10 treatments. On July 8, 2009, at the outset of the massage
therapy sessions, Dr. Hancott reported that the pain was affecting his
daily activities: “(It) makes me tired and sitting for long periods is
difficult/uncomfortable”. He also wrote the condition had occurred before and
had not resolved. At the same time however Dr. Hancott indicated that he
was satisfied with his ability to relax, exercise, overall health, energy level
and sleep. The clinical record for his last pre-accident massage appointment on
March 27, 2010, with respect to his symptoms reads: “doing all right generally,
has R side L (low) back spasm, no sciatica”. He continued to receive chiropractic
treatments until May 2010. The clinical records for that treatment are not in
evidence.

[132]     Dr. Dhawan
had the plaintiff pre-accident massage records by the time he prepared his report,
but offered no opinion about whether the plaintiff would have suffered the same
or similar symptoms absent the accident. In cross-examination he described this
as a possibility. Dr. Bishop, although asked to provide an opinion on this
question by the defendants in his report, and despite expressly reviewing the
pre-accident massage therapy and chiropractic records, did not do so. In his
report, he said only that the plaintiff denied any prior history of persistent
neck, upper and mid back symptoms.

[133]     The
plaintiff testified that he stopped massage therapy prior to the accident for
reasons other than improvement in his condition. Given he was experiencing some
right sided neck and shoulders symptoms starting in July 2009 and up to and
including May 2010, those symptoms may well have continued and contributed to a
limited extent to the loss he claims for injuries to the same areas suffered in
the accident. However, given the plaintiff’s evidence that his prior neck and
shoulder issue did not “slow him down”, the absence of evidence to the
contrary, and the wide range of other injuries he suffered in the accident, the
most significant being dizziness and nausea, I conclude any negative contingency
to be applied to the portion of his claim relating to his soft tissue injuries
to be negligible. Therefore no reduction will be made to his award of
non-pecuniary damages.

Non Pecuniary Damages

[134]     Non-pecuniary
damages are awarded to compensate a plaintiff for his pain, suffering, loss of
enjoyment of life, and loss of amenities caused by the defendant’s negligence.
The jurisprudence provides that the award should be fair and reasonable to both
parties. Fairness is measured against awards made in comparable cases which may
offer a rough guide. Each case however calls for individualized assessment and
must be decided on its own unique facts: Trites v. Penner, 2010 BCSC 882
at para. 188; see also Stapley v. Hejslet, 2006 BCCA 34.

[135]     The
plaintiff seeks an award of $100,000 in non-pecuniary damages relying largely
on Moukhine v. Collins, 2012 BCSC 118 [Moukhine].

[136]     The
defendant submits the court should award the plaintiff $50,000 for non-pecuniary
damages for soft tissue injuries and dizziness, if the court concludes the
plaintiff’s dizziness was mild, relying on Dial v. Grewal, 2010 BCSC 759.
She submits an award of $65,000 would be appropriate in the event the court
concludes the plaintiff’s dizziness is more severe, relying as the plaintiff
does on Moukhine.

[137]     In Dial
the plaintiff suffered dizziness for the first couple of months after the
accident when she stood up. It gradually reduced in frequency over the
following several months. Dr. Hancott’s symptoms of dizziness were far
more pervasive and long lasting, making Dial distinguishable.

[138]     In Moukhine,
the plaintiff was awarded $90,000 for non-pecuniary damages. His injuries also included
headaches, soft tissue injuries, dizziness, nausea and balance problems. He was
unable to work at all for six months and by the time of trial, was not yet
fully recovered. The court accepted the expert evidence of Dr. Longridge
who was of the view the plaintiff suffered from visual vestibular mismatch and
was unlikely to recover, his symptoms having persisted for four years after the
accident. In addition to his own evidence, which the court found credible, the
plaintiff relied upon the testimony of his family members and friends to
establish the very serious ongoing impact of his injuries on various aspects of
his enjoyment of life, including being unable to return a wide range of outdoor
activities or working full time in a job that he loved. He was no longer
cheerful and outgoing. He was limited to working for just over two hours a day.

[139]     I agree
with the defendant’s assertion that the pain and suffering experienced by Dr. Hancott
is significantly less severe than that of Mr. Moukhine although the nature
of their injuries is very similar. Unlike Mr. Moukhine, Dr. Hancott was
able to return to working very long hours shortly after the accident. Nor do I
have the same quality of evidence regarding the ongoing impact of his injuries
on various aspects of his life. Each case is to be assessed on its own
particular facts. Considering all of the circumstances, including the wide range
of symptoms, pain and discomfort the plaintiff experienced while working for
two years after the accident, and the factors identified in Stapley, I regard
an award of $68,000 for non-pecuniary damages to be fair and reasonable.

Past Wage Loss

[140]     The plaintiff
seeks $249,000 in past loss of income. He asks the court to draw the inference that
his injuries contributed materially to the loss of his job with UCW. In the
alternative the plaintiff argues his claim under this head of damage ought to
succeed because his ongoing symptoms “must surely” have impacted on his lengthy
unemployment which cannot otherwise be explained. The defendant submits there
is no evidence the plaintiff was unable to work because of his injuries and
therefore he is not entitled to any damages for past loss of income or earning
capacity.

[141]    
The plaintiff bases the amount of his claims for both past and future
loss of income or earning capacity on a report prepared by Mr. James
Blatchford, a forensic accountant. The report considers past loss of income from
July 28, 2010 to February 10, 2015. It compares Dr. Hancott’s “actual
post-accident earnings” with his “expected post-accident earnings”, based on Mr. Hancott’s
earnings in the years preceding the accident. Mr. Blatchford concludes the
plaintiff’s after tax loss of income was in a range from $219,000 to $279,000. Mr. Blatchford
also concludes Dr. Hancott suffered no loss of income in 2010 or 2011. His
analysis assumes the plaintiff’s injuries reduced his ongoing work capacity and
his employment with UCW was terminated because he was unable to fulfill all of
his responsibilities as CAO due to the injuries suffered in the accident.

[142]    
Claims for past loss of income or loss of capacity are subject to the
same legal test as those for loss of future earning capacity. The plaintiff
must prove that his injuries impaired his ability to earn income. While the
burden of proof relating to actual past events is a balance of probabilities,
hypothetical events including those that are past will be considered as long as
there was or is a real and substantial possibility they would occur, and not
mere speculation: Athey at para. 27. The Court of Appeal in Smith
v. Knudsen, supra, put the matter this way at para. 29:

…What would have happened in the
past but for the injury is no more “knowable” than what will happen in the
future and therefore it is appropriate to assess the likelihood of hypothetical
and future events rather than applying the balance of probabilities test that
is applied with respect to past actual events.

[143]     The
plaintiff is entitled to compensation based on what he would have, not could
have, earned but for the injuries caused by the accident: see Munoz v. Singh,
2014 BCSC 567.

[144]     The
plaintiff’s evidence is that he missed five or six days from work after the
accident because of his injuries. There is no evidence he suffered any loss of income
as a result. Nor does the plaintiff claim to have lost any income due to his
injuries prior to the termination of his job with UCW in August 2012.

[145]     Although
the plaintiff testified that he experienced significant ongoing pain, dizziness
and nausea following his return to work after the accident, he continued to
work long hours and he was not aware of any complaints or concerns about his
work performance. After the accident, the plaintiff’s position changed from
acting dean to senior academic officer and then to CAO, promotions that
involved increasing levels of responsibility. The plaintiff thought he was
managing and in fact doing a good job as CAO. He was very surprised and shocked
when he was terminated. Dr. Hancott’s evidence about his job performance
is consistent with that of Dr. Magee Shepherd. She testified he continued
to complete the tasks required of his positions satisfactorily and in some
instances well both before and after the accident. Neither Dr. Magee
Shepherd nor Dr. Scott was able to give any evidence about the
circumstances surrounding Dr. Hancott’s termination.

[146]     There is
no medical evidence that the plaintiff was unable or ought not to have worked or
perform some of his job duties due to the injuries he suffered in the accident.

[147]     In all of
the circumstances, I conclude the plaintiff has not established the injuries he
suffered in relation to the accident caused or materially contributed to his
loss of employment in August 2012.

[148]     I also
conclude the plaintiff has not established that his injuries and symptoms
contributed to his ongoing unemployment up to the time of trial or his capacity
to earn income had he found employment. In other words, he has not proven that
the injuries he suffered in the accident impaired his ability to earn past
income after the termination. Although the plaintiff testified he did not
challenge his dismissal from UCW because he thought he needed time to rest and
recover, he also testified that within a few weeks he began making applications
for positions with other academic institutions including SFU, NYIT and BCIT and
has continued to seek employment. He indicated he has records to confirm his
efforts but his evidence on this point was not very specific. In any event, he
did not suggest he has been unsuccessful in his job search because of his
injuries or symptoms. In fact, Dr. Hancott confirmed that he has not
revealed his symptoms to any potential employer and he provided no evidence
that his injuries or symptoms have interfered in any way with his efforts to
look for a job. I infer from the positions he testified to seeking and his
decision to enter politics, that he regarded himself as capable of fulfilling
such roles. Based on the evidence regarding his long hours of work up to his
termination in 2012 and the absence of evidence that his symptoms subsequently worsened
after that, I conclude Dr. Hancott has not established his injuries caused
him to suffer past wage loss or past loss of earning capacity.

Loss of Future Earning Capacity

[149]     The
plaintiff seeks an award of $1,000,000 for loss of future earning capacity. Mr. Blatchford,
in his report, concludes that he cannot offer an unqualified opinion of the
present value of Mr. Hancott’s loss of future income, given the
“indeterminate” nature of the “timing and completeness of his full recovery”.
Instead the report sets out a calculation method for assessing the present
value of the plaintiff’s future loss of income from the period from February
10, 2015 to February 18, 2031 (the plaintiff’s 65^th birthday). The calculation
method is based on the same assumptions that underlie the assessment of the
plaintiff’s loss of past wages set out above.

[150]     The cases
make clear that in advancing a future loss of capacity claim, the plaintiff
must first prove a real or substantial possibility of a future event leading to
a loss of income, as opposed to a theoretical loss: Perren v. Lalari,
2010 BCCA 140 at para. 32. The onus on the plaintiff is not heavy but must
nonetheless be met in order to justify a pecuniary award: Kim v. Morier,
2014 BCCA 63 at para. 7. If the plaintiff discharges the
burden of proof, then depending upon the facts of the case, the plaintiff may
prove the quantification of that loss of earning capacity, on an earnings
approach or a capital asset approach.

[151]     Dr. Hancott’s
claim for future loss of earning capacity is based largely on what he refers to
as Dr. Longridge’s view that his “vestibular problem” is a permanent
partial disability. The plaintiff argues that because of this partial
disability there is a real and substantial possibility he will suffer income
loss into the indefinite future. The plaintiff submits he has lost 50% of his
earning capacity, relying on his own evidence regarding his ongoing symptoms,
his struggles during the mayoral campaign, the limits he continues to place on
his own activities and some of the information he reported to Dr. Longridge
about his experience of dizziness.

[152]     Again none
of the medical evidence expresses the view that Dr. Hancott’s capacity to
earn income has been diminished by the injuries he suffered in the accident. Dr. Dhawan’s
opinion in July 2014 was that the plaintiff should be able to continue on with
either his administrative job or enter into politics. Dr. Bishop found no
reason for the plaintiff not to either return to or continue with all his pre-accident
work related and recreational activities.

[153]     I have
already found Dr. Longridge’s prognosis – expressed in terms of his experience
that where symptoms of dizziness continue for two years or more they are likely
permanent – proved to be inaccurate.

[154]      To the
extent the plaintiff continues to suffer from some intermittent pain or
discomfort in his neck and upper back or occasional dizziness and nausea, based
on the evidence, I find those symptoms even when taken together are not
sufficient to establish a real and substantial possibility of a future
pecuniary loss. Accordingly, I conclude the plaintiff has not suffered an
ongoing injury caused by the accident that would impair his ability to earn
income in the future.

[155]     Having
failed to discharge his burden of proof, there is no loss of capacity to
quantify. Accordingly, I grant no award for loss of future earning capacity.

Future Care

[156]     The
plaintiff seeks $7,000 for the cost of future care based upon half of what he
claims in special damages for medical and rehabilitation expenses. He submits
this amount will provide him with a “contingency fund” to draw upon for
medication such as Gravol and Tylenol, injections, and stability devices as he
ages with a balance disorder. He argues the award will help him manage his
symptoms and relate to his ability to function.

[157]     At law, the
plaintiff is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore him to his pre-accident condition, if
possible. When full restoration cannot be achieved, the court must strive to
assure full compensation through the provision of adequate future care: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), at para. 172; Gignac
v. Insurance Corporation of British Columbia, 2012 BCCA 351 at paras. 29
– 30. In addition to being reasonable, a claim for the cost of future care must
be medically justified: Milina at para. 199; Tsalamandris v.
McLeod, 2012 BCCA 239 at paras. 62 – 63. The analysis is an objective
one but it is not an exercise in accounting.

[158]     Recommendations
from a medical doctor and health care professionals are relevant in determining
whether an item claimed is medically justified: Gregory at para. 38.
An evidentiary link between the physician’s assessment of pain, disability, and
recommended treatment is essential: Gregory at para. 39; Munoz
at para.189.

[159]     Dr. Hancott
made no submissions as to the cost of or the medical justification for the
expenses he identified as falling within the scope of the “contingency fund” he
seeks. With respect to injections, the evidence is the plaintiff received facet
blocks and prolotherapy from Dr. Dhawan up to November 2013 as well as injections
from his family doctor. In addition Dr. Taylor has provided him with
ongoing injections, the contents of which are unknown. Although Dr. Dhawan
advised the plaintiff in July 2013 it was safe to continue with Dr. Taylor’s
injections, by the their last appointment in July 2014, he deferred to Dr. Taylor
regarding the need for further injections. In his report, Dr. Bishop
recommended the plaintiff avoid all forms of non-evidence based treatment. It
is clear this would include Dr. Taylor’s injections. While the plaintiff
testified the injections provide him with some temporary pain relief, in these
circumstances I am not able to conclude they are medically justified.

[160]     The
plaintiff provided some evidence about continuing to use Gravol and Tylenol to
deal with symptoms of nausea and pain, respectively. I note however his highly
particularized special damages claim seeks very limited compensation for their
purchase since the accident, causing me some doubt as to how necessary they are
likely to be in the future. I am left to conclude that Dr. Hancott has
actually used very little of either of these over-the-counter medications up to
this time and therefore he is unlikely to use them to manage any ongoing
symptoms he may have, in the future, despite his evidence.

[161]     Finally
the plaintiff mentions a stability device for use in the future. Dr. Longridge’s
report sets out that as the plaintiff ages it is probable “he is more likely to
run into difficulties” with balance and unsteadiness than someone who has not
suffered an injury to his balance system. He made no recommendations in
relation to this increased risk other than optimizing “osteoporosis management”.
The plaintiff’s own evidence regarding problems with balance was scant. He said
only that it was affected but he had not fallen. In the absence of a medical
justification and any estimate of cost, I conclude this item is not part of a valid
future cost of care claim.

Special Damages

[162]     The
plaintiff claims $14,000 in special damages. His claim includes the cost of
massage, acupuncture, chiropractic treatment, injections, supplements,
prescriptions, non-prescription medications, an exercise program, two MRI,
dental fees, the cost of a neuropsychological assessment, gardening services,
parking and travel costs including those related to the assessment which occurred
in San Francisco.

[163]     The
defendant disputes many of the items claimed, but not the cost of the two MRIs
or the cost of massage therapy provided by the Austin Avenue Therapeutic Massage
Clinic in 2010 (further to a referral made by the plaintiff’s family doctor).

[164]     Claims for
special damages are subject to a standard of reasonableness in the context of
the injuries suffered: Redl v. Sellin, 2013 BCSC 581 at para. 55. Medical
justification for an expense that relates to treatment aimed at promoting the
plaintiff’s physical or mental well-being is a factor in determining whether it
is reasonable. Subjective factors can also be considered, including whether the
plaintiff believes the treatments were medically necessary. With respect to
cost, the courts have been prepared to allow claims for expenses at the level
of optimum care, although plaintiffs are not entitled to recovery for the cost
of any procedure they believe will make them feel better.

[165]     There is
little evidence of a medical justification for most of the disputed expenses
claimed by the plaintiff, excepting the treatment provided by Dr. Taylor
up to July 2014 based on Dr. Dhawan’s evidence. However I conclude the
disputed expenses claimed by the plaintiff, and excepting those set out below, are
reasonable in so far as it apparent they were aimed at treating the plaintiff’s
symptoms and injuries related to the accident and promoting his physical well-being,
as well as subjective factors. I include the cost associated with the dentist Dr. Samson
Ng on March 23, 2013. Although the plaintiff has not proven he suffered TMJ injury
as a result of the accident, I have found he did suffer the jaw symptoms he
described and I accept he saw Dr. Ng for this reason.

[166]     The cost
of the assessment completed by the neuropsychologist in San Francisco however
is not recoverable. The plaintiff testified that none of his medical
practitioners recommended he be assessed by Dr. Angelone. Further, there
is no evidence that any such assessment was ever suggested. It was not made
clear to me why the plaintiff sought out Dr. Angelone, except to say he
hoped for some help with his dizziness given the psychologist’s “credentials”.
The cost of the assessment was $4,000 (US). The plaintiff’s travel and
accommodation costs were an additional $4,125.00. In my view these expenses are
not reasonable.

[167]     I accept
the defendant’s submission that the cost of gardening services claimed by the
plaintiff is also not reasonable. The evidence is the gardener provided
services both before and after the accident; the plaintiff would have continued
to require the services in any event because of his work schedule. I also
decline to award the plaintiff the cost of any prescription medications
unrelated to pain, dizziness or nausea. I trust counsel will be able to agree upon
which of those medications may therefore be compensated and to calculate the
precise amount of the special damages I have awarded.

Costs

[168]    
The parties are at liberty to make submissions regarding the issue of
costs, if unable to agree. I will require each of them to file brief written
submissions in advance of a costs application.

“Madam
Justice M. Fleming”