IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150828

Docket: M126023

Registry:
Vancouver

Between:

Brett Kostinuk

Plaintiff

And

Gwendolyn Fellowes

Defendant

Before:
The Honourable Madam Justice B.J. Brown

Reasons for Judgment

[1]            
Brett Kostinuk was injured in a motor vehicle accident on October 7,
2010.  He seeks damages for non-pecuniary loss, past income loss, loss of
future earning capacity, cost of future care, and special damages.  Liability
for the motor vehicle accident is admitted.

Background Facts

(i) The Accident

[2]            
On October 7, 2010, at approximately 4:00 or 4:30 p.m., Mr. Kostinuk’s
vehicle was struck from behind as he was driving home on Marine Drive in
Vancouver.  His vehicle was pushed forward approximately two feet. Immediately
after the accident, he felt symptoms in his back and neck. He attended at Mount
St. Joseph’s Hospital at approximately 5:00 or 6:00 p.m. His neck and beck
were sore, tight, and achy.

(ii) Pre-Accident

[3]            
At the time of the collision, Mr. Kostinuk was 35 years old. He lived
with his parents as he had his entire life. Prior to the accident, Mr. Kostinuk
would assist with lawn care and snow removal at home. He would also wash his
truck, move furniture, put out the garbage, and do some of the cooking.

[4]            
Mr. Kostinuk is trained as an industrial painter and had been working as
a painter for much of the preceding ten years.  Prior to the accident, he had
been considering retraining for a position with correctional services, or as a
sheriff, or a border services agent. At the time of the accident, he had
recently been laid off from his job as an industrial painter.

[5]            
Prior to the accident, Mr. Kostinuk was an active volunteer. He gave his
time to the SPCA once or twice a week and he also volunteered with his church.
He enjoyed participating in sporting activities such as volleyball, basketball,
and badminton and would play pickup games once or twice a month.

[6]            
In 2009, Mr. Kostinuk began experiencing panic attacks and was prescribed
Clorazepam to manage the attacks.

[7]            
In 2010, prior to the accident, Mr. Kostinuk was diagnosed with type II diabetes.
He also had high blood pressure. These ailments were controlled with diet,
exercise, and medications. At the time of the accident, Mr. Kostinuk weighed
310 pounds. He had been advised to lose weight.

(iii) Post-Accident

[8]            
Within a week of the accident, Mr. Kostinuk saw his family physician,
Dr. Andrew Birch. By that time, he was having a lot of pain in his back
and neck.  Dr. Birch referred him for chiropractic and massage treatments.
For the following year, he continued to attend for physiotherapy and chiropractic
treatments.  He took ibuprofen and Tylenol to manage the pain. He also attended
an active rehabilitation program that included aerobics, weights, and
stretching to strengthen his back and neck.

[9]            
At first, his pain was constant although, to a certain extent,
weather-dependant. He found his neck pain was particularly aggravated by safety
equipment at work. In 2011, Mr. Kostinuk noticed his neck and back improved
slightly. He says his symptoms plateaued in October or November 2012.

[10]        
Since the accident, Mr. Kostinuk has had to reduce his activities as a
result of his pain. He does not participate in sports for fear of re-injuring
his back. At home, he no longer washes his car or mows the lawn. He attempted
to assist his parents with snow removal but the activity “tweaked” his back.

[11]        
Mr. Kostinuk continued working as an industrial painter until August
2012 when Dr. Birch advised him to stay away from heavy lifting and recommended
that he leave his current employment. From August 2012 until September 2013, he
was unemployed. During this period of time, Mr. Kostinuk focused on getting
well and attending the active rehabilitation program. He worked out two to
three hours a day five days a week. He now weighs 265 pounds.

[12]        
After August 2012, Mr. Kostinuk considered his career options. He
concluded that returning to industrial painting was probably not an option due
to the heavy lifting the occupation requires. He decided to upgrade his
education for corrections work; however, based on the physical requirements of
correctional services positions, he decided that was a “non-starter”. He took
some courses and applied to the military police. He was rejected because of his
back injury.

[13]        
In his opinion, security work was a last resort. It was easier work than
painting or corrections work but also lower paid. Mr. Kostinuk applied to
Paladin Security (“Paladin”) and was hired in September 2013. He continues to
work there.

[14]        
At Paladin, Mr. Kostinuk received two weeks of training. He currently
has a Level 1 security certificate. He applied and interviewed for a healthcare
security position at Vancouver General Hospital (“VGH”). He was rejected, in
his view, this was likely due to his back injury.

[15]        
Mr. Kostinuk started at Paladin at $11 per hour. He has had one raise
since then and now makes $12 per hour. At VGH, he would start at $13 or $14 per
hour. In correctional services, he would receive between $19 and $30 per hour.

[16]        
Mr. Kostinuk works 84 hours over two weeks at Paladin. His position
involves light duty activities. After his shift, he catches up on sleep. He
goes to bed at 8:00 p.m. and wakes up at 5:00 a.m.

[17]        
He finds his accident-related limited mobility impacts his work. He
exercises at home and sometimes at work, including stretches and exercises for
his back and neck. Sitting in a vehicle exacerbates his pain. He receives
chiropractic treatment only occasionally. He has not returned to the active
rehabilitation program since 2013, citing work commitments.

[18]        
Mr. Kostinuk expressed that he would prefer to return to work in
industrial painting.

[19]        
In 2012/2013, Mr. Kostinuk became depressed and was diagnosed with
depression. He now takes Cipralex for his depression symptoms. He was depressed
over his physical status and his finances. He was also experiencing family
issues, such as problems with his brother.  He had no money and he was unsure
what he could do for a living. He did not attend psychological counselling
because ICBC would not pay for it. He recently started seeing psychiatrist Dr. Paul
Devlin.  Dr. Devlin increased his Cipralex medication from 10 mg to 20 mg.

[20]        
Prior to the accident, Mr. Kostinuk described himself as very active and
mentally attuned, career driven, and social. After the accident he says he was
withdrawn and suffered from anger management issues.  He was not a happy person
to be around.

[21]        
He says his depression has improved with Cipralex but he is still mildly
depressed.  He still has some financial problems.  He has reduced his
activities at the SPCA because he can no longer handle dogs that are inclined
to pull on the leash.  He is also not able to do as much as he did as a
volunteer for his church.

[22]        
Mr. Kostinuk still takes medication for his diabetes and hypertension as
well as for his panic attacks.

[23]        
Mr. Kostinuk says his condition has not changed from September 2013 to
today. His current plan is to stay as a security guard.

[24]        
As of trial he was still very sore.  He could not go on road trips.  He
needed a lumbar support at work.  His pain continued.  He had severe
headaches.  His neck was stiff at times.  He continued to see Dr. Devlin for
depression and Miley Tong for chiropractic treatments.

Position of the Parties

[25]        
The plaintiff suggests that an appropriate damage award for
non-pecuniary loss is $80,000 based on his continuing complaints, young age,
and inability to return to the pain-free status he enjoyed prior to the
accident.

[26]        
With respect to past wage loss including past loss of opportunity, Mr. Kostinuk
says that his last job as an industrial painter paid $17.50 per hour.  By
contrast, he initially earned $11 per hour at Paladin, recently raised to $12
per hour.  He says that the shortfall is $53,400.

[27]        
Mr. Kostinuk also says that he has suffered a loss of future earning
capacity.  He says that he has a working life of approximately 26 years.  He
points to the medical reports that indicate he has a permanent disability
preventing him from heavy labouring work.  He says that even if he is able to
lose more weight or build core strength, he will indefinitely experience pain
in his neck and back.  Occupational medicine expert Dr. Christopher Watt opines
that Mr. Kostinuk will not be able to return to work as an industrial painter. 
Moreover, he cannot take advantage of certain jobs that were previously
available to him, but for his injuries from the accident.  Mr. Kostinuk suggests
that a loss of $12,000 per annum for 26 years, for a total of $312,000 would be
appropriate, discounted to current dollars.

[28]        
Mr. Kostinuk says that he will incur approximately $15,000 to cover the
cost of future treatments recommended by his health professionals.

[29]        
Finally, Mr. Kostinuk says that he has incurred special damages of
$14,060.30.

[30]        
On cross-examination, the plaintiff acknowledged that before the
accident he was hating what he was doing as an industrial painter and thought
that he could not do it forever.

[31]        
After the accident, Mr. Kostinuk worked as a painter for Altech Custom
Coaters from 2010 to 2011 and for S.E.W. Eurodrive from 2011 to 2012. In
September 2011, Mr. Kostinuk tweaked his back while he was carrying an object
with a co-worker. On cross examination, he acknowledged that until then he had
been feeling pretty good. His mid-back had significantly improved. He stated he
quit because of the toxic environment with his immediate supervisor. While at
S.E.W. Eurodrive he did not miss work due to the motor vehicle accident. He was
ultimately laid off due to lack of work. He then worked at Centra Windows
(“Centra”), a position that he left after a week on Dr. Birch’s advice. While
attending the gym five times a week in September 2012, Mr. Kostinuk
acknowledged that his neck and back were 60-70% improved. That autumn he had a
series of viral infections and was “laid up” for a few weeks.

[32]        
Mr. Kostinuk acknowledged that he has had 14 jobs in 15 years. He says
he was looking for more stability. He acknowledged that in order to qualify as
a corrections officer he would have to pass physical tests. These include a
significant running component. When he weighed around 300 lbs, he could not
have done it. He would need to do training. He did not actively pursue any
training or coursework toward a position in law enforcement prior to the
accident. He acknowledged it was an idea, a back-up plan if his employment failed.

[33]        
Mr. Kostinuk attended informational meetings and met with a recruiter in
fall 2012 once he discovered he could not work as an industrial painter any
longer. He was told that he was well-suited for a position as a correctional
officer; however, he would probably not pass the correctional officers’
physical abilities testing. He also looked at by-law enforcement but came to
understand that it may take years to get full-time employment. He went into
security work instead where he plans to stay for the time being. He has not
lost the hope of pursuing employment in law enforcement, depending on how his
body reacts. On cross-examination, Mr. Kostinuk maintained he would prefer
to still be an industrial painter rather than a security guard.

[34]        
The defendant agrees that the plaintiff suffered physical injuries as a
result of the motor vehicle accident.  However, the defendant says that the
plaintiff suffered only soft-tissue injuries, which did not restrict his
ability to earn income beyond a relatively short period of time.  The defendant
also says that the defendant’s depression was largely caused by factors for
which the defendant is not responsible such as the plaintiff’s ongoing
financial difficulties, numerous pre-existing medical conditions, family
illness and conflict, and work-related stress.

[35]        
The defendant says that the plaintiff’s neck and back discomfort was
largely resolved by September 2012, about two years after the accident.  The
defendant says that the plaintiff’s injuries did not prevent him from working
as an industrial painter for a year and a half after the accident.  The
defendant says that the plaintiff was not able to work through the fall of 2012
because of viral illnesses but was ready to return to work no later than
January 2013.

[36]        
The defendant says that the appropriate range for non-pecuniary damages
in these circumstances is between $40,000 and $50,000.

[37]        
The defendant says that the plaintiff has failed to mitigate his damages
by not taking steps that were recommended by treating practitioners to assist
in his own recovery, specifically participating in a regular exercise program
and losing more weight.  The defendant says that the plaintiff’s damages should
be reduced as a consequence.

[38]        
With respect to past wage loss and loss of opportunity, the defendant
says that the plaintiff’s income was consistently low in the years before and
after the accident.  He worked for a variety of employers over the years and,
in some cases, for only short periods of time.  The defendant says that the
plaintiff’s projected 2014 earnings are in the range of the plaintiff’s
earnings prior to 2012 and are likely to increase from this point on.  The
defendant says that the plaintiff should be compensated for the few months
after August 2012 where Dr. Birch was of the opinion that he should not work. 
The defence says this should expire as of December 30, 2012, deducting three to
four weeks in November/December when the plaintiff could not work as a result
of viral illness.  The defendant says that the plaintiff could have and should
have returned to work in January 2013.  The defendant says this amounts to
approximately $9,000 (with a 20% reduction for taxes and other deductions).

[39]        
With respect to loss of future earning capacity, the defendant says that
the plaintiff was considering making a change in career even before his
injury.  The defendant says that the plaintiff’s current position as a security
guard is more stable and has better career prospects than his previous
occupation as an industrial painter.  The defendant says that if the plaintiff
loses weight and gets regular exercise, there is a good possibility that his
neck and back symptoms will improve, allowing him to work in more lucrative
areas within the security industry.  The defendant says that even without the
accident, it is unlikely that the plaintiff could have pursued a career in law
enforcement work or correctional services.

[40]        
Finally, the defendant says that the plaintiff is capable of pursuing
industrial painting if he chooses.  The defendant says that industrial painting
is not universally a heavy job.  The defendant says that ongoing symptoms alone
do not mandate an award for loss of future earning capacity.  The defendant
says that if a loss is to be awarded, it should be fairly nominal.  The
defendant suggests that, at most, such an award should be $25,000.

[41]        
With respect to cost of future care, the defendant says that the
plaintiff has already received extensive instruction from personal trainers and
he does not require further supervision, but rather he just needs to start
exercising again.  The defendant submits that, at most, he should receive a gym
pass of $500.

[42]        
With respect to future medications, the defendant submits that, at most,
the plaintiff should receive $2,400 for two years’ worth of Cipralex as
recommended by Dr. Devlin.

[43]        
With respect to special damages, the defendant disputes three charges
and says that the plaintiff should receive a maximum of $12,520.

Issues

[44]        
The issues are:

1.       general
damages;

2.       past
wage loss;

3.       loss of
future earning capacity;

4.       cost of
future care;

5.       special
damages; and

6.       failure
to mitigate.

General Damages

[45]        
General damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life, and loss of amenities. The compensation
awarded should be fair to all parties and fairness is measured against awards
made in comparable cases. Such cases, though helpful, serve only as a rough
guide as each case depends on its own unique facts: Trites v. Penner,
2010 BCSC 882 at paras. 188-189. The well-known framework for the assessment of
non-pecuniary damages was outlined by the Court of Appeal in Stapley v.
Hejslet, 2006 BCCA 34 at para. 46.

[46]        
Mr. Kostinuk suffered an injury to his neck and back in the motor
vehicle accident of October 7, 2010. This has caused him ongoing pain and
discomfort. He continues to suffer from neck and back pain and stiffness. I am
also persuaded that the motor vehicle accident has contributed to the
depression he has been experiencing.

[47]        
Despite his complaints, he was able to find employment following the
motor vehicle accident and worked until August 2012. He was able to work full-time,
performing physical work, despite ongoing symptoms.

[48]        
In August 2012, he left his employment because he found it too
physically demanding. His family physician recommended that he not work for a
period of time. During that time, Mr. Kostinuk was referred to an active rehabilitation
program, which he attended five days a week for two to three hours per day for
approximately one year. Mr. Kostinuk lost a significant amount of weight and
reported an improvement in his symptoms.

[49]        
All of the medical personnel he has consulted have advised him that he
should continue an active exercise program. It is good for his health,
including his musculoskeletal complaints, hypertension, and psychological
complaints.

[50]        
I have considered the authorities provided to me by each of the parties.

[51]        
The plaintiff relies on Bearpark v. Lakhanpal, 2013 BCSC 2082; Delgiglio
v. British Columbia (Public Safety and Solicitor General), 2012 BCSC 480;
and Beggs v. Stone, 2014 BCSC 2120. The plaintiffs in these cases were
awarded between $70,000 and $80,000 in non-pecuniary damages.

[52]        
In Bearpark, the plaintiff was 30 years old at the time of trial.
Two motor vehicle accidents left him with ongoing chronic back pain, which
limited his performance of heavier work and gave him intermittent pain in his
neck and left shoulder.  He also suffered from depression and anxiety related
to the motor vehicle accident. He had pre-existing diabetes and anxiety
problems.

[53]        
In Delgiglio the plaintiff was 57 years old, deconditioned and
obese. He continued to suffer from chronic pain as well as anxiety and
depression four years after being injured in a motor vehicle accident. He had been
in seven previous accidents, had an inconsistent work history, and had pre-existing
health concerns.

[54]        
The plaintiff in Beggs was 52 years old and continued to suffer
from soft tissue and psychological injuries for years after a motor vehicle
accident. Pre-existing conditions were at issue.

[55]        
The defendant relies on Djukic v. Hahn, 2006 BCSC 154, aff’d 2007
BCCA 203; Brousseau v. John Doe, 2012 BCSC 1676; Piper v. Hassan,
2012 BCSC 189; and Fuchser v. Wilson, 2012 BCSC 176. The plaintiffs in
these cases received between $40,000 and $50,000 for non-pecuniary damages. In Djukic,
the male plaintiff was 39 years old at the time of the accident. He
suffered soft tissue injuries to his neck, left shoulder, and low back. His
complaints gradually improved over time although they were aggravated with
physical labour. He suffered from depression and anxiety. In Brousseau, the
plaintiff was 26 years old at the time of the accident. She suffered soft
tissue injuries to her back, neck, and shoulders as well as psychological
injuries. These were largely resolved two years after the motor vehicle
accident. In Piper, the plaintiff was 50 years old at the time of the
trial. He had suffered injuries to his low and mid back and neck. He also suffered
from pre-existing depression, which was severely aggravated by the accident.
His injuries were largely resolved by the time of the trial. In Fuchser,
the 35-year-old plaintiff suffered moderate soft tissue injuries to her neck,
shoulders, back, and hip with accompanying headaches. She was still
experiencing occasional neck, shoulder, lower back, and hip pain at the time of
the trial. The judge found that the plaintiff’s depression was only partially
caused by the accident.

[56]        
It is trite to say that no two cases are the same. In my view, the plaintiff’s
injuries and the damage he has suffered are more akin to the cases relied on by
the plaintiff than those relied on by the defence. Mr. Kostinuk has
ongoing complaints from the accident and is likely to continue to have
complaints throughout his life. He can no longer perform heavy duties. Although
Mr. Kostinuk suffered from type II diabetes, high blood pressure and was
significantly overweight before the motor vehicle accident, he was able to
perform heavy labour. He suffered from anxiety attacks before the accident but
had not experienced depression.

[57]        
I accept the submissions of the defence that there are a number of
factors in Mr. Kostinuk’s circumstances that are contributing to his depression.
However, I also accept the opinion of Dr. Devlin that the depression is related
to his chronic pain syndrome, which is the result of the accident.

[58]        
Considering Mr. Kostinuk’s pre-existing condition, his injuries, and his
ongoing complaints, $70,000 is an appropriate award for general damages.

Past Wage Loss

[59]        
Compensation for past loss of earning capacity is based on what the
plaintiff would have, not could have, earned but for the injury that was
sustained: Karim v. Li, 2015 BCSC 498, citing Rowe v. Bobell
Express Ltd., 2005 BCCA 141 at para. 25; M. B. v. British Columbia,
2003 SCC 53 at para. 27.

[60]        
Mr. Kostinuk was off work from late August 2012 until October 2013.

[61]        
Mr. Kostinuk’s calculation of past wage loss assumes that he would have
had full-time employment from August 2012 (when he left his job with Centra) until
October 2013 (when he started work with Paladin). As well, Mr. Kostinuk argues
that he does not earn as much at Paladin as he was earning at Centra and should
be compensated for the shortfall. He calculates his past wage loss at $53,400.

[62]        
I agree with the submissions of the defence that Mr. Kostinuk’s earnings
while at Centra are not representative of his past wage loss. He started with Centra
on August 13, 2012 and finished there on August 20, 2012. In my view, one week
of work does not accurately reflect Mr. Kostinuk’s work history and is not
a fair measure of his past wage loss. Mr. Kostinuk had a varied earnings
history as an industrial painter. His hourly wage fluctuated between $14 and
$17.50 in recent years. He was frequently unemployed.

[63]        
In 2009, his total income was $31,486 including $2,046 of Employment Insurance
(“EI”) benefits. In 2010, his total income was $26,266 including $12,070 of EI
benefits.  In 2011, his total income was $31,591 including $1,446 of EI
benefits.  In 2012, he earned $23,256 including $8,900 of EI benefits.

[64]        
Mr. Kostinuk’s income for 2011 is a fair reflection of his earnings
historically. In 2011, Mr. Kostinuk worked almost full-time throughout the
year. He did not miss time due to the motor vehicle accident. In that year, he
earned $31,591, similar to his earnings in 2009. Therefore, I use the figure of
$31,500 as the benchmark for Mr. Kostinuk’s past earnings.

[65]        
Mr. Kostinuk was off work entirely from August 2012 through January 2013
on the recommendation of his family physician. That is four months at $2,625
per month for a total of $10,500.

[66]        
At Paladin, he earned $22,880 from his date of hire until April 2014, and
then $24,960 annually. This would result in a shortfall of $5,000 from October
2013 to April 2014 and of $3,815 from April to December 2014.

[67]        
There is no medical evidence that Mr. Kostinuk was not able to work from
January 2013 through October 2013. On February 6, 2013, Mr. Kostinuk was
examined by Dr. D. G. Werry. He was of the opinion that “Mr. Kostinuk was not
likely to experience disability from mild to moderate physical work." Mr.
Kostinuk should have been able to obtain work at that time as he did later with
Paladin. Had he done so, he could have earned approximately $1900 per month as
he did when he started with Paladin. This would amount in a wage shortfall of
$725 per month. Therefore, his wage loss from January 2013 through September
2013 is $6,525.

[68]        
Mr. Kostinuk’s total past wage loss is $25,840. Counsel may calculate the
net wage loss.

Loss of Future Earning Capacity

[69]        
Mr. Kostinuk argues that his ongoing loss is approximately $12,000 per
annum, representing the difference between his earnings as an industrial
painter and what he makes as a security guard. To age 65, this totals $312,000.

[70]        
The defendant argues that, even before the motor vehicle accident, Mr. Kostinuk
was disenchanted with working as an industrial painter. The plaintiff’s current
occupation as a security guard is far more stable and has better prospects of career
advancement than his previous occupation as an industrial painter. The
defendant argues that if the plaintiff loses weight and gets regular exercise
as recommended by his doctors, there is a good possibility that his neck and
back symptoms and physical functionality will improve further and will permit
him to earn even more as a security guard. The defendant says that it was
unlikely that Mr. Kostinuk would have successfully pursued a career in law
enforcement without the motor vehicle accident as he would not have been able
to pass the physical testing for a corrections officer before the accident or
be able to perform the other physical tasks required for a position in law
enforcement.

[71]        
The defendant recognizes that Mr. Kostinuk is less attractive to future
employers because of his ongoing medical complaints resultant from the motor
vehicle accident. The defendant argues that an award of $25,000 would be
suitable.

[72]        
Mr. Justice Walker summarized the applicable principles in Ruscheinski
v. Biln, 2011 BCSC 1263:

[114]    For an award under this head of damages to be made,
Ms. Ruscheinski must demonstrate a “substantial possibility that lost
capacity will result in pecuniary loss”: Perren v. Lalari, 2010
BCCA 140, at paras. 4, 7, 21, 31, and 32, 137 D.L.R. (4th) 729; Steward
v. Berezan, 2007 BCCA 150 at para. 17, 64 B.C.L.R. (4th) 152. A future
or hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation: Perren at
para. 30.

[115]    If the plaintiff discharges the burden of proof,
then he or she may prove quantification of that loss by an earnings approach or
by a capital asset approach: Perren at para. 32; Chang
v. Feng, 2008 BCSC 49 at para. 76, 55 C.C.L.T. (3d) 203. 

[116]    Garson J.A. wrote in Perren at
para. 11 that where the loss cannot be measured in a pecuniary way, “the
correct approach [is] to consider the factors described by Finch J., as he then
was, in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353. In Brown,
he said at para. 8:

The means by which the value of the
lost, or impaired, asset is to be assessed varies of course from case to case.
Some of the considerations to take into account in making that assessment
include whether:

1. The plaintiff has been
rendered less capable overall from earning income from all types of employment;

2. The plaintiff is less
marketable or attractive as an employee to potential employers;

3. The plaintiff has lost the
ability to take advantage of all job opportunities which might otherwise have
been open to him, had he not been injured; and

4. The plaintiff is less valuable to himself as a
person capable of earning income in a competitive labour market.

[117]    In para. 12 of Perren, Garson J.A.
said:

These cases, Steenblok, Brown,
and Kwei, illustrate the two (both correct) approaches to the
assessment of future loss of earning capacity. One is what was later called by
Finch J.A. in Pallos the ‘real possibility’ approach. Such an
approach may be appropriate where a demonstrated pecuniary loss is quantifiable
in a measurable way; however, even where the loss is assessable in a measurable
way (as it was in Steenblok), it remains a loss of capacity that is
being compensated. The other approach is more appropriate where the loss,
through proven, is not measurable in a pecuniary way. An obvious example of
the Brown approach is a young person whose career path is
uncertain. In my view, the cases that follow do not alter these basic
propositions I have mentioned. Nor do I consider that these cases illustrate an
inconsistency in the jurisprudence on the question of proof of future loss of
earning capacity.

[118]    A useful summary of the principles governing the
determination and measure of an entitlement of an award for loss of income
earning capacity is set out at para. 32 in Perren:

A plaintiff must always prove, as was noted
by Donald J.A. in Steward, by Bauman J. in Chang, and
by Tysoe J.A. in Romanchych, that there is a real and substantial
possibility of a future event leading to an income loss. If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset
approach, as in Brown. The former approach will be more useful when
the loss is more easily measurable, as it was in Steenblok. The
latter approach will be more useful when the loss is not as easily measurable,
as in Pallos and Romanchych. A plaintiff may
indeed be able to prove that there is a substantial possibility of a future
loss of income despite having returned to his or her employment. That was the
case in both Pallos and Parypa. But, as Donald
J.A. said in Steward, an inability to perform an occupation that is
not a realistic alternative occupation is not proof of a future loss.

[Emphasis in the original.]

[73]        
I am not persuaded that a specific dollar figure per annum is the
appropriate measure of the plaintiff’s loss of future earning capacity in the
circumstances of this case. In my view, Mr. Kostinuk has a good future in
security. Mr. Kostinuk has received one raise while at Paladin. It is likely
that he will receive further increases, should he remain at Paladin, so that he
is earning an amount at least equivalent to what he was earning before the
motor vehicle accident. I agree with the defendant’s submissions that if Mr. Kostinuk
takes the doctor’s recommendations, engages in a regular exercise program and
is able to lose some more weight, his prospects in security are even better.

[74]        
However, I am persuaded that there will be positions at Paladin or
elsewhere that Mr. Kostinuk will not be able to take advantage of because of
his physical restrictions from the accident. Applying the factors from Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.),  I am persuaded that overall
Mr. Kostinuk has become less valuable to employers and less valuable to himself
as an employee. He has restrictions caused by his physical limitations resultant
from the motor vehicle accident and will not be able to take advantage of all
job opportunities.

[75]        
I assess Mr. Kostinuk’s loss of future earning capacity at $75,000.

Cost of Future Care

[76]        
As noted by Mr. Justice Abrioux in Karim:

[162]    The purpose of an award for future cost of care is
“to compensate for a financial loss reasonably incurred to sustain or promote
the mental and/or physical health of an injured plaintiff”: Erickson v.
Sibble, 2012 BCSC 1880 at para. 316. The basis for such an award is what is
medically justified and reasonable based on the evidence: Milina at 84; Spehar
(Guardian ad litem of) v. Beazley, 2002 BCSC 1104 at para. 55.

See also paras. 161, 163-165.

[77]        
Mr. Kostinuk seeks a global sum of $15,000 to cover the cost of future
treatments. He refers to the medical opinions where the doctors recommended:

1.       Dr. Watt:

[Mr. Kostinuk] should be referred to an IMS [acupuncture] certified
physiotherapist for a trial of IMS. These treatments typically cost about $75-$80
per session. He should undergo an initial trial of five sessions. If he
experiences at least 25% to 30% improvement, he should continue for another 12
to 20 sessions.

He should be referred to a certified fitness trainer for a 12-month
supervised progressive exercise program. This should consist of three weekly
sessions lasting 60 to 90 minutes each. … Upon completion of the program, he
should be provided with a gym pass and encouraged to continue to work out five
to seven days per week.

2.       Dr. Devlin:

Mr. Kostinuk, in my opinion,
suffers from a secondary depression related to his chronic pain syndrome. This
has been partially treated by the addition of Cipralex 20 mg a.m. by his family
practitioner, Dr. Birch.  However, I believe that these symptoms will require
ongoing treatment…for up to two years.[]He will require ongoing medication
costing $100 per month and would benefit from a course of Cognitive Behavioural
Psychotherapy with a psychologist….approximate cost $5,000. I would also
recommend, and have done so, to Mr. Kostinuk that he needs to lose a
significant amount of weight, probably 50 to 75 pounds. He may require a
personal trainer to do this over one to two years….approximate cost $5,000.

[78]        
Mr. Kostinuk says he also continues to use over-the-counter painkillers
and seek chiropractic treatments at a cost of $45 per session for flare-ups.

[79]        
The defendant argues that Mr. Kostinuk’s future care requirements are
limited to exercise and ongoing strengthening at most. He has already received
extensive instruction from personal trainers and should be able to pursue
physical training without further supervision. The defendant submits that, at most,
the plaintiff is entitled to the cost of a gym pass at $500.

[80]        
With respect to medication, the defendant says that the plaintiff is by
his own report “balanced" now. The defendant says that the plaintiff
should receive at most $2,400 for two years’ worth of Cipralex as recommended
by Dr. Devlin.

[81]        
In Bystedt v. Hay, 2001 BCSC 1735 at para. 163, Madam Justice Smith
said:

[163]    Thus, the claim must be
supported by evidence that establishes the proposed care is what a reasonable
person of ample means would provide in order to meet what the plaintiff “reasonably
needs to expend for the purpose of making good the loss"… It must also be
based an objective test of what is moderate and fair to both parties [citations
omitted].

[82]        
I accept that at this point Mr. Kostinuk will require the assistance of
a personal trainer for approximately one year to regain the conditioning he has
lost and to re-learn the techniques. However, this is not an expense that
should be laid at the feet of the defendant, as is detailed below. Had Mr.
Kostinuk attended the gym regularly since the accident, he should be in a
position to continue his exercise program without the benefit of a trainer.

[83]        
Considering the other expenditures recommended by his doctors, I assess
$7,500 for the cost of future care.

Special Damages

[84]        
The plaintiff seeks $14,060.30 as special damages. The defendant takes
issue with a charge of $26.25 for security and a charge of $20 for adult
education course registration. Deducting these two charges leaves special
damages of $14,014.05. Mr. Kostinuk will receive this amount as special
damages.

[85]        
I do not accede to the defendant’s argument that the mileage expenses
calculated by the plaintiff are excessive.

Failure to Mitigate

[86]        
After Mr. Kostinuk started work at Paladin, he stopped attending the
gym. To that point, he had significant success in losing weight and in
improving his physical condition and reducing his symptoms. He stopped
attending the gym because it was no longer convenient for him to attend the gym
that he had been attending. This is not a reasonable course of conduct. There
are many gyms that Mr. Kostinuk could have attended. He simply chose not
to.

[87]        
A plaintiff in a personal injury action has a positive duty to mitigate
by taking all reasonable measures to avoid all or a portion of his loss: Hunt
v. Ugre, 2012 BCSC 1704 at paras. 167-169. The defendant has the burden of
establishing that the plaintiff acted unreasonably and the extent, if any, to
which the plaintiff’s damages would have been reduced, had he or she acted
reasonably: Chiu v. Chiu, 2002 BCCA 618 at para. 57.

[88]        
While I am satisfied that Mr. Kostinuk did not act reasonably in
abandoning his attendance at the gym, I do not know the extent, if any, to
which his damages would have been reduced had he acted reasonably. Some of the
medical practitioners were of the view that he would likely have improved his
circumstances. Others, such as Dr. Birch, were of the opinion that continued
gym attendance might have, but not necessarily would have, improved his
complaints arising from the motor vehicle accident. Accordingly, I cannot say
that Mr. Kostinuk’s damages should be reduced by his failure to mitigate.

Costs

[89]        
The plaintiff is entitled to his costs at scale B unless there are
matters of which I am not aware.

Summary

[90]        
The plaintiff is awarded damages as follows:

“B.J.
Brown J.”