IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151019

Docket: S22996

Registry:
Chilliwack

Between:

Thomas Lane Picco

Plaintiff

And

Constable John
Doe/Jane Doe,
The Minister of Justice for

Her Majesty the
Queen in Right of British Columbia

Defendants

Before:
The Honourable Mr. Justice N. Brown

Reasons for Judgment

Table of Contents

INTRODUCTION. 4

ISSUES. 5

BACKGROUND. 6

1  The
Plaintiff’s Life Pre-Accident 6

2  The
July 1, 2009 Accident 7

3  The
Aftermath of the Accident 8

EXPERT WITNESSES. 9

MEDICAL EVIDENCE. 10

1  Dr. McCarthy. 10

2  Dr. Gittens. 12

3  Dr. Hawkeswood. 16

DEBBIE PICCO.. 20

CAUSATION. 21

1  Pre-Existing
Conditions. 22

1.  Low
Back. 22

2.  Addiction
to Narcotic Analgesics and Heroin. 24

I.  Drawing of Adverse
Inference: Legal Principles. 27

II.  Prospects for Recovery from
Addictions. 29

3.  Mental
Conditions. 30

2  Intervening
Post-Accident Events. 31

3  Summary
of Findings on Causation. 33

DAMAGES. 37

1  Non-Pecuniary
Damages. 37

2  Loss
of Past Earning Capacity. 40

.1  Education. 40

.2  Employment
since the Accident 42

.3  Evidence
of Employer Costa Vassos. 43

.4  Resumption
of Apprenticeship. 45

.5  Testimony
of Jeff Brown. 46

.6  Findings
on loss of past earning capacity. 46

3  Loss
of Future Earning Capacity. 48

.1  Legal
Principles for Loss of Future Earning Capacity. 52

.2  Conclusions
on loss of future earning capacity. 54

4  Mitigation of Non-Pecuniary Damages, Past & Future Loss of
Earning Capacity. 56

5  Cost
of Future Care. 58

6  Special
Damages. 60

Award. 61

COSTS. 61

INTRODUCTION

[1]            
The plaintiff, Thomas Lane Picco, claims damages for personal injuries
sustained in a motor vehicle accident (the “Accident”) that occurred on July 1,
2009. The plaintiff’s vehicle, a GMC Yukon, was struck by a police car which
propelled the plaintiff’s vehicle into the path of an oncoming car that struck
his truck head on.

[2]            
The plaintiff is 29 years old. He was not employed at the time of the
Accident. The plaintiff claims damages for non-pecuniary loss, past income
loss, loss of future earning capacity, cost of future care, and special damages.
He claims he suffered injuries to his spine and musculature, neck, left
shoulder, entire back, left arm, right hip, right and left leg. He also claims
sleeplessness, depression, and anxiety.

[3]            
In about December 2005, the plaintiff suffered a lower back injury (at
“L4-L5”) using a sledgehammer at work. On August 6, 2006, he underwent a
discectomy. The plaintiff had a prior history of drug abuse, use of narcotic
analgesics for pain, and mental health issues.

[4]            
The plaintiff submits the medical legal reports support his position
that the Accident seriously injured his back and caused a permanent disability.
He claims this disability prevents him from pursuing a career as a journeyman
electrician and that his lower back injuries are the cause of his chronic pain.
He also claims it caused depression, the need for a second surgery, and an
addiction to prescription narcotics and heroin. He accordingly seeks enlarged
non-pecuniary damages for his heroin addiction, as in Fabretti v. Gill,
2014 BCSC 899 [Fabretti].

[5]            
The plaintiff seeks $180,000 for non-pecuniary damages, $98,162.34 for
past net income loss, and $1.431 million for loss of future earning capacity,
both engendered by his loss of capacity to complete his apprenticeship and to
work as an electrician. He seeks $20,000 for cost of future care, itemized
chiefly by the cost of a rehabilitation program and attendance at a pain
clinic. He also claims $17,891 for special damages.

[6]            
The defendants submit the plaintiff is not a reliable historian of his
activities, symptoms, and functional limitations. The defendants point to the
plaintiff’s pre-Accident history of drug abuse, to his addiction to
prescription narcotics, to his lack of commitment to his electrician
apprenticeship and to his employment generally, and to his history of
psychiatric problems. The defendants also submit that the plaintiff failed to
mitigate his damages. In essence, the plaintiff submits causation has not been
proven.

[7]            
The plaintiff called the following witnesses:

1.       Debbie Picco,
the plaintiff’s mother.

2.       Adam Van
Steinberg, a former dispatcher at the International Brotherhood of
Electrical Workers (“IBEW”), Local 213. He explained the organizational
structure of the apprenticeship program, the involvement between the IBEW and
the Electrical Joint Training Committee (“EJTC”), and the demands of the
program.

3.       Andy Cleven, the
training director of the EJTC. He testified on the plaintiff’s participation in
the apprenticeship program, his termination, and what he would have to do
before he could re-enroll.

4.       Jeff Brown, the
electrical supervisor at Canem West Services Inc. (“Canem West”), an electrical
services company. He testified about the telephone call with the plaintiff in
May or June of 2009, where they discussed the possibility of the plaintiff
working at the company again.

5.       Costa Vassos, a
location manager and film producer in the B.C. film industry. He testified
about the plaintiff’s work for him as a production assistant between 2011 and
2013, and his prospects.

ISSUES

[8]            
The issues raised in this action are:

a)       What injuries
did the plaintiff suffer as a result of the July 1, 2009 Accident?

b)       Did the July 1,
2009 Accident cause or contribute to the plaintiff’s preceding lower back pain,
drug and narcotic analgesics’ addictions, and to his depression and anxiety?

c)       Were there, if
any, intervening events after the Accident that aggravated the plaintiff’s
condition, prolonged his recovery, or superimposed new injuries upon him?

d)       What amounts, if
any, are payable to the plaintiff as damages for non-pecuniary loss, past
income loss, loss of future earning capacity, cost of future care, and special
damages?

BACKGROUND

      
1         
The Plaintiff’s Life Pre-Accident

[9]            
The plaintiff was interested in becoming a journeyman electrician, as
was his father, before he retired. The plaintiff enrolled in the apprenticeship
program administered by the EJTC for the IBEW, Local 213. The plaintiff worked
for Western Pacific Enterprises GP and Canem West, during his apprenticeship. A
work injury occurred while working as an apprentice, in late December 2005,
when he was using a sledgehammer. The injury caused a disc herniation that
produced low back pain that radiated into his left leg. On August 6, 2006, the
plaintiff underwent a discectomy, his first of two back surgeries at L4-L5.

[10]        
The plaintiff failed his Level 1 apprenticeship exam in the winter 2005
term. He later failed his Level 2 exam and had to rewrite the exam. He later
failed his Level 3 exam. The plaintiff attributed his poor academic performance
to his physical limitations following his 2005 injury and the long
convalescence from his August 6, 2006 discectomy. The plaintiff also became
depressed and discouraged following his exam failures.

[11]        
The extent of the plaintiff’s recovery from this injury prior to July 1,
2009, is much in dispute. The defendants submit the plaintiff’s recovery from
the first discectomy was unusually lengthy, that he developed a dependency on
narcotics for pain management, and that he previously used street drugs. By
contrast, the plaintiff and his mother testified that in the 12 to 18 months
prior to the Accident, the plaintiff experienced no pain or limitations, and
was not using narcotic analgesics.

[12]        
The plaintiff received wage indemnity after the 2005 workplace injury
and subsequent August 2006 discectomy. It was in dispute whether the plaintiff
ever returned to employment after his late 2005 workplace injury; a matter
these reasons will address. Little information was offered on the plaintiff’s
living arrangements and activities in the months before the July 1, 2009
Accident. At a medical legal exam, the plaintiff stated that shortly before the
Accident he was doing some electrical jobs, from 20 to 30 hours a week. But no
detail or independent confirmation of that was presented.

      
2         
The July 1, 2009 Accident

[13]        
On July 1, 2009, a police car struck the plaintiff’s vehicle and moved
his large pickup truck into the path of oncoming traffic. An oncoming car then
struck his vehicle head on. The plaintiff did not suffer a loss of
consciousness. His airbag did not deploy. He was transported to Mission General
Hospital. He complained of numbness and tingling in his left arm and the
immediate onset of pain at the left side of his neck and shoulder. X-rays at
Mission General Hospital did not reveal any spinal injury. He was released from
hospital with two Percocet pills in hand.

[14]        
On July 6, 2009, the plaintiff attended Burke Mountain Medical Centre,
in Port Coquitlam, where his family physician, Dr. M.A. McCarthy,
practiced. She was away that day, so he saw another physician, Dr. H.
Arntsen. The plaintiff reported to the doctor that since he left the hospital,
his pain had increased and had spread to his entire neck and upper back. He
also reported that the area of his lower back where he had been previously
injured seemed fine, but he did have pain in his right sacroiliac that radiated
into his hip, to his thigh, and occasionally into his ankle. He also complained
of intermittent headaches that lasted up to 40 minutes, interrupted sleep, and
left-side wrist pain. Dr. Arntsen diagnosed soft tissue injury to the neck
and back, prescribed Flexeril and Naproxen, ordered a spinal X-ray, and
referred the plaintiff to physiotherapy.

[15]        
From that point, the plaintiff’s presentation gradually became more
complex. The diagnosis of the effects of the Accident became compounded by his
significant pre-existing lower back problems, his August 6, 2006 discectomy, a
psychiatric condition, and a lengthy period of addiction to controlled
substances and narcotic analgesics prescribed for pain.

      
3         
The Aftermath of the Accident

[16]        
The court heard little about the plaintiff’s living arrangements and
activities in the months after the Accident. He did not see Dr. McCarthy
between the end of July 2009 and April 7, 2010, which amounts to a nine-month
gap. After the Accident, the plaintiff testified that he drove to Seattle,
where, relying on savings, he stayed with friends for a “few weeks”. He drove
back and forth between B.C. and Seattle, Washington, a few times; returning
when had run out of money. In Seattle, he did not engage in any recollected
activities or seek work. It was not clear where the savings he used to support
himself in Seattle came from because he had not been employed for many months
pre-Accident and his income from employment before the Accident was modest at
best.

[17]        
Although the plaintiff stated he was in pain following the Accident, in
the nine months between the last visit with Dr. McCarthy and the next, he
sought no medical attention in Seattle or at home. He recalled only his having
experienced some breathing difficulty one time that led to one visit to a
Washington hospital; the location and name of which were not recalled. He
stated he received a prescription for a painkiller that he had filled. He did
not have a copy of the receipt and could not recall the name or location of the
pharmacy. He did not take any of the medication anyway, he testified, because
he had lost it in a hot tub he was taking for therapeutic purposes. The
plaintiff recalled 16 physiotherapy treatments he attended between August 6,
2010 and May 22, 2012; and up to six physiotherapy treatments that occurred at roughly
the same time. His kinesiologist recommended exercises that he said he has
continued to perform. He also mentioned that he tried medicinal yoga once, in
2009/2010.

EXPERT WITNESSES

[18]        
The court heard opinions from the following experts:

1. Dr. Martha
A. McCarthy has been the plaintiff’s family physician since December 6,
2005. Her March 29, 2011 medical legal report encompasses her observations and
treatment of the plaintiff between 2005 and August 27, 2008, ten months before
the Accident. She was the plaintiff’s physician in August 2006, when he
underwent the discectomy to his lower back and she treated him during the
lengthy recovery period that followed.

2. Dr. Winston
Gittens is a neurosurgeon, who provided a medical legal report dated
December 2, 2012, and an addendum to it dated August 24, 2014. He performed a
second discectomy and a neurolysis at L4-L5 on October 31, 2011. He testified,
among other things, that he believed that the Accident aggravated the
plaintiff’s pre-existing degenerative changes at that location. He made
recommendations for further therapy and opined the plaintiff was employable
consistent with his abilities.

3. Dr. Jonathan
P. Hawkeswood is a physiatrist. He presented a medical legal report dated
February 26, 2014. He opined on several matters, including the possible
recurrence of lower back pain, irrespective of the Accident, and on the likely
occurrence of back pain between August 27, 2008 and the Accident. He thought
the Accident likely worsened a premorbid back condition.

4. Ms. Shannon
Smith is an occupational therapist, who assessed the plaintiff’s functional
capacity and summarized her findings in a report dated July 24, 2014. She opined
on the plaintiff’s physical capacity to work on a part-time or full-time basis
at the time of her assessment. She recommended physical activity.

5. Ms. Avita
Sharma is a vocational rehabilitation consultant. She presented the court
with a report, dated August 12, 2014, that opined on the plaintiff’s prognosis
for employment.

6. Mr. Darren
Benning is a consulting economist. He provided the court with reports that
presented a scenario of the plaintiff’s past wage loss and loss of future
earning capacity.

MEDICAL EVIDENCE

      
1         
Dr. McCarthy

[19]        
Dr. McCarthy has been in general practice since 1979. The plaintiff
has been her patient since December 6, 2005, when, she noted, she first saw him
for lower back pain after the sledgehammer work injury. In her March 29, 2011
report, she notes he went on to develop persistent lower back pain that
radiated down his left leg and eventually led to the August 2006 L4-L5
discectomy.

[20]        
She also notes his prolonged recovery and ongoing pain. She states he
was eventually weaned off of all narcotic agents in the summer and fall of
2008. The last time she saw him for back pain was on August 27, 2008, when she
prescribed 42 tablets of Oxycocet, a narcotic analgesic, to be taken every
three hours for two weeks.

[21]        
Dr. McCarthy’s colleague, Dr. Arntsen, who first saw the
plaintiff on July 6, 2009, noted the plaintiff was able to get out of his
vehicle, that his left arm felt numb and tingly, and that his left neck and
shoulder were in pain. Neck X-rays at Mission Emergency were negative for any fractures.
He was given analgesics in Emergency. On p. 2 of her report, Dr. McCarthy
notes:

Since his emergency visit his
pain had increased and spread over the entire neck and upper back. The lower
back where his previous problem had been did not seem to be involved. There was
pain in the sacroiliac joint area on the right side, radiating into the right
hip and thigh, occasionally to his ankle. Headaches were intermittent and
lasted 35-40 minutes. He was complaining of left wrist pain as well. His sleep was
interrupted. He had been using ibuprofen and Tylenol #1. He was applying
heat using a hot tub. He had no regular employment but was doing some
electrical jobs (20-30 hours per week). He had been working out daily at a gym.
Since the [A]ccident he had been home on the couch.

[22]        
Dr. Arntsen ordered an X-ray that showed mild degenerative disc
narrowing at L4-L5 without evidence of vertebral injuries. Notably, it showed
no change from images after his previous surgery in 2008.

[23]        
When the plaintiff saw Dr. McCarthy on July 21, 2009, he told
her he had been attending the gym for a year since he had last seen her on
August 27, 2008; and that he had felt happy and healthy. Post-Accident, he
reported his right leg and right hip continued to feel painful, with the pain starting
in the back and radiating around to the front. At p. 3 of her report, she
recorded:

… [H]is sleep had been severely
disturbed. He found it hard to move. He was not receiving any benefit from the
medications that Dr. Arntsen had prescribed. On examination he complained
bitterly of the pain. Any movement was painful for him. He had marked decreased
flexion of his back. His extension was normal but painful over the right
sacroiliac joint area. The reflexes of his lower limb were equal and bilateral
in the knees. Tripod examination was negative. He was tender over the muscles
of the neck bilaterally. He had normal range of motion of his neck. I agreed
with the diagnosis of a soft tissue injury. I gave him a trial of Tramacet
medication which is a combination of Tramadol, an opioid-like medication, and
acetaminophen. I continued the anti-inflammatory and the Flexeril. I encouraged
him to continue with physiotherapy. I encouraged him to incorporate more
movement into his daily life.

[24]        
On his next visit, July 30, 2009, he reported neck pain was
improving. Headaches, right lower back pain, and right hip pain that went into
the right leg continued. On examination, Dr. McCarthy found tenderness
over the right sacroiliac joint area, but did not see much change.

[25]        
As we already saw, nine months passed before Dr. McCarthy saw the
plaintiff again. He reported he had become extremely frustrated with his
condition and had moved to Seattle to stay with friends.

[26]        
Pain continued, reportedly centred in the low back with spasms, and
extended into the right hip and down the right leg. His left leg seemed okay.

[27]        
Dr. McCarthy felt the plaintiff had not had any care since his last
visit. She opined most people with the plaintiff’s reported level of symptoms
would have been seeking care.

[28]        
The plaintiff visited Dr. McCarthy on April 7, 2010, where he
reported he felt too much pain to work or attend the gym for fitness training,
but that the Robaxacet, Tylenol and ibuprofen prescribed did not help much. She
diagnosed a possible disc protrusion, ordered a CT scan, and prescribed
OxyContin, 20 mg, twice daily, she encouraged the plaintiff to continue with an
exercise program, and asked to see him again in one week. OxyContin is a
narcotic and addictive. She could not recall if the plaintiff specifically
asked for it, but as it had relieved pain following his August 6, 2006
discectomy, she prescribed it.

[29]        
When the plaintiff next saw Dr. McCarthy, she noted the CT scan did
not show any sign of right-sided nerve impingement. She again prescribed
narcotic analgesics, as had her colleague two weeks earlier. She planned to
have the plaintiff participate in an active rehabilitation program.

      
2         
Dr. Gittens

[30]        
Dr. Gittens has been a physician since 1970; and since 1976, a
Fellow of the Royal College of Physicians and Surgeons of Canada in neurosurgery.

[31]        
He saw the plaintiff on December 10, 2010, at the request of Dr. M.
Nikolakis, who earlier had seen him at the request of Dr. McCarthy for
diagnosis and management of his lower back and left leg pain. Dr. Nikolakis
did not think surgery was advisable, but referred him to Dr. Gittens for a
second opinion.

[32]        
Dr. Gittens noted the past history of a previous L4-L5 discectomy
five years earlier for sciatica. When Dr. Gittens saw the plaintiff, he
complained of pain from the buttock to the top of the foot, and of an ache in the
lumbar sacral area. The plaintiff portrayed his history post-surgery as his
having done "extremely well” and “able to resume his full activities
without any residual symptoms." He advised Dr. Gittens that he was
able to return to work and to begin to workout in a gym, which he had been
unable to do since the Accident.

[33]        
On clinical assessment, Dr. Gittens noted the plaintiff had
tenderness in the lower back at the L4-L5 level, at the site of the previous
surgery. At p. 3 of his December 2, 2012 report, he concluded that:

…[The plaintiff] had a recurrent
disc herniation at the L4-5 level with a left L5 radiculopathy along with some
mechanical lower back pain related to the changes in the spine. I concluded
that as his symptoms were primarily radicular in nature that he had a good
chance of benefiting from surgery. I also brought up the option of epidural
steroid injections. He opted for surgery.

[34]        
When Dr. Gittens saw the plaintiff on December 6, 2011, following
the surgery, the plaintiff reported a 40% reduction in nerve pain, and
continued lower back pain.

[35]        
When Dr. Gittens next saw the plaintiff on October 30, 2012, he
noted the following at p. 3 of his December 2, 2012 report:

…Although pain was less, he was
still reporting constant pain in the lower back which he indicated was 7 on the
pain scale of 1–10. He was also reporting pain in the right hip and left hip
areas and the lateral aspect of the left thigh to the knee. He reported
difficulty standing, sitting and walking for long periods of time. … The
physical examination revealed that he walked with a limp, that he had trouble
with heel and toe walking but was able to do this. When the motor testing was
done it produced pain in the lower back and this was also true for straight leg
raising. I did not find any convincing weakness in the lower extremities and
the left ankle jerk was slightly reduced. I concluded that he was stable from a
neurological standpoint as the motor findings had not changed, that we were
dealing with chronic pain. … I concluded that irrespective as to what was found
on the MRI scan that he was unlikely to achieve complete pain relief by further
surgery. I thought that some effort should be given to vocational counselling and
assessment.

[36]        
Dr. Gittens further noted at p. 4:

…[The
plaintiff] has chronic lower back pain. He has evidence of degenerative disc
disease or spondylosis L4–5 and L5–S1 and has recently had surgery for
recurrent disc herniation, left L4–5. It is my opinion that he will continue to
experience chronic pain. However, whether there are any other interventions
that may alleviate this pain I would like to await the results of his
investigations.

The history would indicate that the motor vehicle [A]ccident
of July 1, 2009 aggravated the degenerative changes at the L4–5 level and
probably resulted in the disc herniation resulting in the recurrent radicular
pain.

[37]        
When Dr. Gittens saw the plaintiff in October 2012, the plaintiff
advised that “he had been unable to work”, “was unable to go to the gym and had
suffered mental issues, and … was experiencing pain on a chronic basis 24/7, in
spite of physiotherapy and some massage therapy” [August 24, 2014 Report of Dr. Gittens,
p. 5].

[38]        
Dr. Gittens noted “multiple cutaneous lesions, some of which were
bleeding, on the right leg.” Dr. Gittens stated the plaintiff said he “had
recently fallen from his bicycle" [p. 5].

[39]        
Further at p. 5, as for range of motion, Dr. Gittens thought
“he was alert and had a good range of neck movement … and no motor deficit in
the upper extremities.” As for the lumbar spine area, he noted that the
plaintiff was “able to reach 6-8” from the floor which was an improvement” from
his last visit in 2012. Straight leg raising was “60-70 degrees bilaterally in
the lying position with lower back pain.” Dr. Gittens further opined:

[The
plaintiff] has chronic lower back pain and left lower extremity pain. The lower
back pain is clearly mechanical in nature. There does not appear to be any
evidence of an active radiculopathy although the pain in the left lower
extremity would reflect some chronic impairment in the nerve root function.

[40]        
Accordingly, Dr. Gittens diagnosed at p. 5 as follows:

1)         Chronic
pain with some pain focus, back and left lower extremity along with right hip

2)         Degenerative
disc disease L4–L5 and L5–S1 level, epidural fibrosis resulting in mechanical
lower back pain

3)         Status post L4–5 repeat dissectomy and L5
neurolysis

4)         Right hip pain of
undetermined etiology

[41]        
Then relating the diagnosis to the Accident, Dr. Gittens further
opined at p. 5 as follows:

1)         A soft
tissue injury to the neck, the symptoms of which rapidly resolved. He has no
residual symptoms as a result of that.

2)         Soft
tissue injuries to the lower back. This could be a contributing factor to his
chronic pain.

3)         Activation/aggravation of
degenerative disc disease with probable small recurrent disc herniation, left
L4–5.

[42]        
On cross-examination, Dr. Gittens clarified his diagnosis of
“activation” (as opposed to aggravation) is apt only if it is correctly assumed
the plaintiff was asymptomatic. As for the degenerative disc disease, he opined
this would be ongoing and made worse by the Accident.

[43]        
On prognosis and the effect of his ongoing pain on employment, Dr. Gittens
opined as follows at p. 7:

…
[The plaintiff] now has chronic pain and at this stage it is doubtful that any
further improvement in his symptoms will occur. He is therefore going to be
left with chronic pain unless he wants to obtain some benefit from pain
management in the setting of a pain clinic. The prognosis therefore is that the
ongoing pain is likely to prevent him from returning to his work as an
electrician apprentice.

[44]        
On the question of whether the injury suffered would have disabled the
plaintiff from his usual occupation, he opined that the plaintiff was not
totally disabled. He further opined, considering the plaintiff had not been
involved in any recent rehabilitation programs and might be somewhat
deconditioned, that "[i]mproving his general condition may result in some
reduction in his pain and some improvement in his general physical capacity”
[p. 7].

[45]        
He also opined that the plaintiff was unlikely to deteriorate further,
absent from trauma.

[46]        
On cross-examination, Dr. Gittens said he was unaware Dr. Padilla,
who had performed the first discectomy on August 6, 2006, refused to see the
plaintiff on re-referral because a CT scan showed he saw no significant changes
as compared to the plaintiff’s pre-Accident condition.

[47]        
Dr. Gittens agreed the plaintiff could have had excellent results
from epidural steroid injections, but had opted for surgery.

[48]        
He agreed that a CT scan of the lumbar spine conducted on April 30,
2010, which showed the plaintiff’s condition before the Accident, did not show
visible changes as compared to his post-Accident condition. He confirmed that
the plaintiff was deconditioned, could benefit from pain management education,
and should consider suitable employment.

      
3         
Dr. Hawkeswood

[49]        
Dr. Hawkeswood is physiatrist, certified in 2011. In addition to
his practice, Dr. Hawkeswood is a clinical instructor at the University of
British Columbia. He saw the plaintiff on February 26, 2014, and produced a
report dated February 26, 2014. On p. 3 of his report, he opined the
plaintiff suffered from mechanical low back pain, which he explained is “a
general term to describe multifactorial back pain and "pain generators”
[which] can include the vertebral body, intervertebral discs, facet joints,
sacroiliac joints, and surrounding soft tissue.”

[50]        
He noted at p. 3 that “[the plaintiff] complained of an ache and
occasional sharp pain affecting the lumbosacral region on the right worse than
left side.” He further noted as follows:

[The plaintiff] reported
worsened pain symptoms with general activity, including bending, reaching,
standing, and lifting. His physical examination was notable for a
moderate-to-severe restriction of lumbar forward flexion, relatively limited
tenderness in the affected regions, and reluctance to squat due to a painful
stretch in the lower lumbar region. He has a history of two low back surgeries
related to disc space narrowing in the lower lumbar segments, which was most
severe at L4-5 causing impingement upon the left L5 nerve root.

[51]        
At p. 4 of his report, he opined the plaintiff’s “low back pain is
chronic in nature and probably relates to the … abnormalities identified on the
lumbar spine imaging.” He also found the pattern of his “leg pain is consistent
with a chronic radiculopathy that is refractory to surgery, likely due to pain
centralization.”

[52]        
As for hip pain, he thought it was most likely ‘soft tissue’ in nature,
although he thought it could also “relate to femoral acetabular impingement”.
He also noted the physical examination showed “muscular tenderness in the
posterior hip girdle, which partially reproduced his pain symptoms." Dr. Hawkeswood
had a "low suspicion that [the plaintiff’s] hip pain … radiate[d] from the
lumbar spine” which I take to mean he thought it unlikely that was the source
of it.

[53]        
Further at p. 4 of his report, Dr. Hawkeswood commented that
the plaintiff had “provided a fairly consistent history … clouded by frequent
swearing” and what he characterized as “catastrophizing”. He noted the
plaintiff stated he could sit for 10 minutes, when he had remained seated over
the span of approximately 45 minutes to an hour for the interview. He opined
that the plaintiff’s "mood, opiate addiction, and sleep issues have
undoubtedly complicated his pain predicament.” He explained that, “[i]t is
known that individuals with adjustment issues, such as stress and anger, also
have difficulty coping with pain. I believe [the plaintiff] has fairly poor
pain-coping skills” [p. 5].

[54]        
On causation, Dr. Hawkeswood opined as follows at p. 5:

It is my opinion that the
subject [A]ccident worsened a pre-morbid low back condition. I do not have a
comprehensive set of clinical records leading up to the subject [A]ccident. I
recognize that [the plaintiff] did not seek opiate medication, nor is there a
record of any clinical encounters relating to back pain for several months
preceding the subject {A]ccident. I doubt, however, that his back pain had
completely resolved in the time leading up to the MVA.

Prior to the subject [A]ccident,
[the plaintiff] had a history of low back pain lasting a few years, lumbar
surgery with a prolonged recovery course, obsessive compulsive disorder,
polysubstance use, and probably some type of mood issue [noting that the
clinical records indicate bipolar features, as recorded by a psychiatrist].
With this information in mind, I believe [the plaintiff] was vulnerable to a
more exaggerated and protracted course of symptoms by way of future trauma.
Furthermore, these features, in combination with poor pain-coping skills, lead
me to believe that [the plaintiff] would likely have experienced a recurrence
of his low back pain of significance at some point in the future in the absence
of the [A]ccident. I have no reason to believe that this would have taken place
in the immediate future. I cannot be specific about the expected timing or
severity of future back pain symptoms.

It is my opinion that the
right hip pain is directly attributable to the subject [A]ccident. I am not
clear whether or not the right hip pain is related to the mechanism of the [A]ccident
itself, or is a manifestation of biomechanical changes secondary to his right
leg overuse on account of him favouring the left side.

[55]        
Notwithstanding that the plaintiff had already participated in numerous
sessions with a kinesiologist and a physiotherapist, Dr. Hawkeswood
recommended 10 to 15 additional sessions with a kinesiologist; continuation of
current medications; avoidance of opiate analgesics; ongoing follow-up with a
psychiatrist to monitor mood and sleep; and addictions counselling, as
necessary [p. 6].

[56]        
Dr. Hawkeswood also recommended that the plaintiff have “access to
a gym membership”. He assumed the plaintiff was “functioning well and
exercising on a regular basis prior to the subject [A]ccident”. He stated that
he believed, "this approach to physical activity probably represents [the
plaintiff’s] best chance at having meaningful improvement in his overall pain
levels, quality of life, and general functioning" [p. 6].

[57]        
As for prognosis, he expected improvement in the low back, left leg, and
right hip pain, with regular anaerobic exercise, stretching, and continued
avoidance of opiate medications. He further commented at p. 6 that he
thought it “a good prognostic sign” that:

[The plaintiff] has successfully
avoided illegal and narcotic prescription drugs over the past couple of months.
Not only does this clinical feature increase my sense of optimism – it helps to
justify renewed investment in [the plaintiff’s] rehabilitation program.

[58]        
In the longer term, Dr. Hawkeswood opined right hip pain [would]
continue to be a problem periodically, but he did not “expect a drastic
worsening … in later years” [p. 6].

[59]        
On p. 7 of his report, he opined that the plaintiff “could return
to gym activity, provided he avoids heavier lifting (for example, squats and
dead lifts), overhead lifting, and higher impact aerobic activity.” He thought
he should be able “to tolerate at least moderately intense resistance-based and
anaerobic activity provided he stretch and take short breaks as needed” [p. 7].

[60]        
As for vocational abilities and limitations, he believed the Accident
had rendered the plaintiff less able to tolerate work as an electrician on an
ongoing and indefinite basis. However, without the Accident, Dr. Hawkeswood
at p. 7 of his report, thought him “at a fairly high risk of missing
future work on account of back pain recurrences.” He further stated, "I
cannot predict the future timing or expected severity of future back pain, nor
can I be specific about an anticipated length of absence from work secondary to
this potential problem.” The plaintiff agreed with the suggestion that he has
poor coping skills when presented with difficulties and stressful situations.
If he could pick and choose his tasks, he thought he would do okay. But if he
were to end up in the cockpit, upside down, so to speak, he could not cope.

[61]        
At p. 8 of his report, Dr. Hawkeswood thought the plaintiff
“could ultimately work full time, with occasional sick days”, his tolerance
poor for: “heavy-lifting, lifting while twisting, repetitive bending, and
activities of limited opportunity for position changes.” Tolerable, would be
that allowed for: “transition[s] between sitting, standing, and intermittent
walking.” He also thought long-distance walking was unlikely to be well
tolerated by the plaintiff.

[62]        
On physical examination, Dr. Hawkeswood noted the plaintiff
tolerated intervertebral compression testing in the thoracic and upper lumbar
spine while in the prone position. In the prone position, the plaintiff
reported no significant pain with testing at the lumbosacral region and no
significant sacroiliac (“SI”) joint tenderness. Femoral stretch testing on the
right side did not reproduce his hip symptoms. Palpitation over the rectus
femoris (quadricep muscle that attaches to the hip and knee) did not
produce pain at the front of the hip.

[63]        
Dr. Hawkeswood made a good impression as a witness. I found his
report and opinion more comprehensive and informed than those of the other
experts who testified. Given the medical questions in this case, a
physiatrist’s perspective is particularly helpful. He was straightforward on
cross-examination.

DEBBIE PICCO

[64]        
Debbie Picco, the plaintiff’s mother, testified. She is a retired nurse.
She had some nurse’s training in pain management.

[65]        
She related the plaintiff’s father is a retired electrician and former
member of the IBEW, Local 213. She recalled that it was after a telephone
discussion with his father that the plaintiff decided to take preparatory
courses at the Southern Alberta Institute of Technology (“SAIT Polytechnic”).

[66]        
She recalled the plaintiff was a bright child. She granted that he had
to take off a lot of time following his surgery, but in "a year or
two" recalled he managed well and was considering a return to work. In the
1 to 1½ years before
the [A]ccident, she could not recall his having seen any doctors. After the
Accident, she recalled he was in “a fair bit of pain". She confirmed the
plaintiff went to live in Seattle for about six months and returned home
periodically. By 2011, she saw no improvement, noticing he had become
depressed, lacked appetite, did not socialize, and did not walk as he had
before. A response admittedly similar to what had happened after the plaintiff
failed his Level 3 exam. Ms. Picco testified his failures "did not
sit well" with him and he seemed to lose motivation, embarrassed at how
poorly he had done.

[67]        
She recalled his prescriptions of OxyContin for pain, which she felt had
not brought him relief and his turning to heroin. I note Ms. Picco
accompanied her son to some appointments and acted as an advocate for him, to
the extent of advocating for narcotic analgesics.

[68]        
Ms. Picco testified she paid the cost of her son’s attendance at
the Cedars Rehabilitation Centre on Vancouver Island, in December 2013. He was
supposed to attend for six months, but lasted only three weeks; expelled from
the program over the so –called ‘mushrooms on the hiking trail incident’,
discussed elsewhere in these reasons. As for the present, she confirmed the
plaintiff had been in a recovery house for about six weeks.

[69]        
Asked about his drug use as a teenager, she testified she did not recall
that.

[70]        
Asked about the presence of pain before the Accident, she noticed no
indications of pain and recalled he was going to the gym to work out.

[71]        
Ms. Picco recalled twice accompanying the plaintiff to the Pain
Clinic at St. Paul’s Hospital for assessment there by both a psychologist
and a neurologist. I cannot accept this testimony because Dr. McCarthy was
very clear that no referral was made to St. Paul’s Hospital. It would not
accept a referral because ICBC was involved.

[72]        
As for the plaintiff’s current methadone program, she felt it had
stopped the plaintiff’s cravings and gave him some pain relief. On the subject
of the plaintiff’s mood change, she testified his social connections were what
most mattered to him. She thought he did not connect with them anymore and had
lost friends. She testified that the plaintiff has been living with her and her
husband except for two months in the spring of 2013, when he lived with a
girlfriend.

CAUSATION

[73]        
The plaintiff must prove the defendants’ negligence more likely than not
caused all the damages claimed. For proof of causation, the plaintiff chiefly
relies on the medical legal reports, his own testimony and the testimony of his
mother. As noted earlier, he maintains that when the July 1, 2009 Accident
occurred, he had fully recovered from his previous lower back injury. He no
longer required narcotic medications, regularly attended the gym, was ready to
return to work, and to re-enroll in the apprenticeship program.

[74]        
The plaintiff stressed certain statements made in the medical reports of
the experts, such as Dr. Hawkeswood’s remark at p. 8 of his report,
where he wrote that the “pain symptoms lasted until the mid-portion of 2008.
[the plaintiff’s] low back pain and leg pain completely resolved in the year
preceding the subject [A]ccident.” Similar histories may be found in the other
medical legal reports, but all are based on what the plaintiff reported, not on
clinical observation.

[75]        
The plaintiff pointed to the last recorded pre-Accident complaint of any
kind about his back injury, which is contained at p. 1 of Dr. McCarthy’s
March 29, 2011 medical legal report, where she stated:

[The plaintiff] was eventually
weaned off all narcotic agents in the summer and fall of 2008. He was last seen
for any complaint with regard to his back on August 27, 2008 when he received a
prescription for narcotic analgesic.

[76]        
Dr. McCarthy has no record of the plaintiff’s activities after
August 27, 2008.

[77]        
The defendants submit the nature and extent of the plaintiff’s testimony
about his pain and disability does not accord well with medical findings, and
that the court should view the plaintiff’s testimony cautiously.

[78]        
The defendants further submit that the plaintiff’s complaints, including
soft tissue pain, depression/anxiety, and substance abuse are more plausibly
explained by the plaintiff’s pre-existing conditions. The defendants point to
the following pre-existing conditions: pre-existent degenerative disc and the
L4-L5 discectomy on August 6, 2006; pre-existent narcotic addiction to
controlled substances, including cocaine and crystal methamphetamine (“crystal
meth”); and pre-Accident episodes of depression, anxiety and a diagnosis of
obsessive compulsive disorder (“OCD”).

      
1         
Pre-Existing Conditions

    
1.         
Low Back

[79]        
When the claimant injured his lower back at L4-L5 in late 2005, while on
the job and working with a sledgehammer, he suffered from a disc generation and
herniation at that level. This produced low back pain that radiated into his
left leg. On August 6, 2006, he underwent his first discectomy. There is no
question recovery time from his August 6, 2006 discectomy took longer than the
norm and that his dependence on narcotics for pain control was abnormal.

[80]        
Although the plaintiff and his mother testified that in the 12 – 18
months that preceded the July 1, 2009 Accident the plaintiff experienced no
pain or notable functional limitations, other evidence challenges that
testimony, in varying degrees. On August 27, 2008, Dr. McCarthy prescribed
the plaintiff with enough OxyContin to last for two weeks. The plaintiff was
either still experiencing pain strong enough to require the prescription or he
was drug-seeking. It is true Dr. McCarthy recorded no prescriptions for
narcotic analgesics again until after the July 1, 2009 Accident; but in the
interval, she had no information about the plaintiff’s activities or his
physical condition.

[81]        
The plaintiff spoke to Jeff Brown about returning to Canem West for work
around May 2009. However, he never followed up and offered no plausible reason
for his having failed to do so, if he felt as well as he claimed between August
27, 2008 and July 1, 2009. He was not working anywhere; although he told Dr. McCarthy
he was working for 20 – 30 hours a week at electrical jobs before the Accident.
Not working is inconsistent with a full recovery from symptoms and a readiness
to return to work. No independent evidence of regular gym attendance was
introduced. The plaintiff did not call as a witness a girlfriend with whom he
lived with for three months before the Accident; or a friend to confirm his
pain-free and active state.

[82]        
There is no doubt the plaintiff used street drugs before and after his
August 2006 discectomy. Apart from the testimony of the plaintiff and his
mother, there is no way to confirm whether the plaintiff continued to use drugs
in the period leading up to the Accident.

[83]        
When Dr. McCarthy referred the plaintiff to Dr. Padilla, the
surgeon who performed the August 2006 discectomy, Dr. Padilla refused to
see the plaintiff because he saw no significant change in the October 12, 2010
CT scan compared to images taken after the 2006 discectomy. None of the medical
evidence supports notable changes in the L4-L5 imaging between then and now.

[84]        
The defendants stressed that in the year following the Accident, the
plaintiff complained of pain on the right side; and that it was not until
September 2010 that he complained of pain on the left side, which was similar
to his pre-Accident complaints. However, Dr. McCarthy did not see any
significance in this as she opined it was not uncommon for symptoms from soft
tissue injuries to move around like that.

[85]        
Even assuming the plaintiff had not sought opiate medication and
assuming there was no record of clinical encounters relating to back pain for
several months preceding the subject Accident, Dr. Hawkeswood nonetheless
doubted the plaintiff’s back pain from the 2005 injury had completely resolved
preceding the Accident [February 26, 2014 Report of Dr. Hawkeswood,
p. 5].

[86]        
I find the plaintiff had experienced improvement in the ten months
before the Accident, but I do not find that he made a full recovery, or that he
was symptom free.

[87]        
I find the force of the Accident caused a soft tissue injury to the
plaintiff’s lower back that aggravated an unrecovered condition.

    
2.         
Addiction to Narcotic Analgesics
and Heroin

[88]        
The plaintiff seeks augmented general damages based on an acquired
heroin addiction following the Accident: Fabretti.

[89]        
The plaintiff is currently on a methadone treatment program. There is no
question he illegally obtained heroin after the Accident and became addicted.
Regarding his addiction, Dr. Hawkeswood opined that the plaintiff was
clearly drug-seeking and began to use heroin. Dr. Hawkeswood explained
that there is a close compositional connection between prescription medications
like OxyContin and heroin. I accept that some chronic pain patients may transit
from narcotic analgesics to street use of heroin, as they both reduce pain
symptoms; but this does not necessarily incriminate the July 1, 2009 Accident
as the sole cause of the heroin addiction, considering the plaintiff’s history
of drug abuse and the fact that Dr. McCarthy was already prescribing
narcotic analgesics for pain before the Accident.

[90]        
Dr. McCarthy testified that the plaintiff started to use OxyContin
in April 2010. Before then, a locum physician prescribed Demerol, one time. On
cross-examination, she agreed that the plaintiff became dependent after the
first discectomy. She felt he weaned off his dependency successfully, again
noting her last prescription for analgesic narcotic was August 27, 2008.
Nevertheless, her information on the knowledge of the plaintiff’s activities in
the preceding year, including possible use of street drugs, is lacking; and, in
December 2013, the plaintiff saw Dr. Hedges, who specializes in the
treatment of drug addiction.

[91]        
The defendants argue that the plaintiff’s dependency on narcotic
analgesics and substance abuse was a long-standing one and extended to his
teenage years. The plaintiff acknowledged he became dependent on narcotic
analgesics after his 2006 discectomy, and that he also bought and used street
drugs then. He acknowledged use of crystal meth, a highly addictive controlled
substance “a few times” pre-Accident.

[92]        
Dr. Hawkeswood and other medical experts who testified noted the
plaintiff’s struggles with addictions in the past, an atypically prolonged
recovery, and use of narcotic analgesics after his first discectomy. Likewise
following the Accident, the experts noted extended use of prescription narcotic
analgesics and some instances of drug-seeking behaviour.

[93]        
The plaintiff told the court he had easy access to the just mentioned Dr. Hedges,
a specialist in the treatment of drug addiction who had treated him before the
Accident. Dr. Hedges was not called as a witness, but his December 17,
2013 consultation amply sets out the nature and extent of the plaintiff’s
addiction history, extending into his teenage years. At p. 2 of his
report, Dr. Hedges noted a high school history of heavy alcohol
consumption and occasional marihuana use for sleep. Marihuana use continued
into the plaintiff’s twenties (but not post-Accident). Heavy alcohol
consumption continued in Calgary, for four years. Dr. Hedges also
described the plaintiff’s abuse of a wide range of street drugs during his
apprenticeship in B.C. As for narcotics, Dr. Hedges noted their compulsive
use, especially since the Accident. Dr. Hedges stated the plaintiff’s
heroin use started three years before he saw him, which, given the date of the
report, would be roughly December 2010.

[94]        
At p. 3, Dr. Hedges noted the exceptionally negative
consequences of substance abuse for user’s social, emotional, and family life,
and on their self-perception:

The negative spiritual and
emotional consequences included anger, resentments, self-pity, fear, anxiety,
depression, frustration, helplessness, hopelessness, despair, loneliness,
boredom, remorse, guilt, shame and very low self-esteem. He added, “I am
incapable of being myself. I have almost forgotten being healthy, happy and
cheerful.”

[95]        
At pp. 5 to 6 of his report, Dr. Hedges recommended various
approaches to treatment, including detoxification, medications for pain and
depression, and regular attendance at Narcotics Anonymous. In this regard, he
noted that the plaintiff was in regular contact with several men who were in
“well-established recovery”.

[96]        
Dr. Hedges also noted that the plaintiff’s mental status had
steadily improved and that, “he responds very well to support and encouragement
and has shown real courage and persistence to get well despite the difficulties
of withdrawal” [p. 5].

[97]        
Dr. Hedges explained the challenges of treating addiction at
pp. 4 – 5 of his report:

Substance dependence is a chronic, generally progressive and
potentially fatal disease involving the physical symptom of the compulsive and
destructive use of alcohol and/or other mood-altering drugs.

It also involves critically
important mental, emotional and social factors that must all be addressed
consistently and indefinitely to prevent relapse and to facilitate
comprehensive recovery. Although complete abstinence from alcohol and all other
mood-altering drugs is not equivalent to full recovery from substance
dependence it is an absolute precondition for recovery. [The plaintiff] needs
to participate indefinitely in an abstinence-based recovery program.

[98]        
The defendants submit that the plaintiff’s pre-Accident narcotic
addiction and abuse of controlled substances never remitted before the
Accident; and that he had failed to prove on a balance of probabilities any
link between his narcotic and heroin addiction and the Accident. The defendants
therefore submit that the court ought to attribute the plaintiff’s addiction to
heroin to his pre-Accident state.

[99]        
The defendants also argue the court ought to draw an adverse inference
for the plaintiff’s failure to call Dr. Hedges as a witness without
reasonable explanation. The defendants submit that given Dr. Hedges is the
plaintiff’s treating physician for addiction issues, considering the
plaintiff’s claims and the fact that the plaintiff was referred to a
rehabilitation program on Vancouver Island in early 2014, and was then ordered
out of the program on January 21, 2014, the plaintiff ought to have called Dr. Hedges;
and that the plaintiff’s failure to do so warrants the drawing of an adverse
inference.

I.                
Drawing of Adverse Inference:
Legal Principles

[100]    
If a party fails to call a witness who might be expected to give
supporting evidence, and does not offer sufficient explanation for their having
failed to do so, the court may infer the witness was not called because their
evidence would have been detrimental to the party that ought to have called the
witness: Buksh v. Miles, 2008 BCCA 318, at para. 31 [Buksh].

[101]    
In McIlvenna v. Viebig, 2012 BCSC 218, Sigurdson J. commented on
what had become the current view on the drawing of adverse inferences,
referring to a summary in the Canadian Encyclopedic Digest, CED (West. 4^th),
vol. 26, title 61 at para. 71:

[71]  …
[T]he Canadian Encyclopedic Digest, CED (West. 4^th), vol 26, title
61, describes when an adverse inference should be drawn, and in particular,
what exactly 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 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 the evidence would have been
adverse in nature. For a time, it was generally accepted that this judgment
mandated an adverse inference to be drawn in any case where a party failed to
call a particular witness who might have had facts bearing on the case.

…

§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. In a case before a jury, the trial judge should
charge the jury that it is appropriate to infer that a failure to call material
evidence uniquely available to a party was an indication that such evidence
would not have been favourable to that party, but that jurors are not obliged
to draw such an inference.

[Emphasis added in original.]

[102]     The
defendants have valid concerns on this point. The plaintiff did not give a
sufficient reason why Dr. Hedges was not called. He was uniquely
positioned to explain the plaintiff’s progress, or lack thereof, between
December 2013 and the trial. The clinical records set out in considerable
detail the plaintiff’s conduct at the treatment centre on Vancouver Island and
the reasons for his expulsion. The reasons for his expulsion extend beyond the
plaintiff’s having falsely told other clients undergoing treatment at the
facility that he found magic mushrooms on the trail, which they then consumed.
We do not know if or how, the unflattering portrayal of the plaintiff’s conduct
impacted the plaintiff’s treatment for drug addiction or his overall recovery
from his injuries.

[103]     That said,
the lack of Dr. Hedge’s testimony does not detract much from the court’s
capacity to fairly determine whether the Accident impacted the plaintiff’s
pre-Accident position on drug addiction. The plaintiff’s long history of drug
addiction is not in issue. Dr. Hedge’s cogent statement that the
plaintiff’s addiction “involves critically important mental, emotional and
social factors that must be addressed consistently and indefinitely to prevent
relapse and to facilitate comprehensive recovery” is in evidence [p. 4].

[104]     Nothing
prevented the defendants from issuing a subpoena to Dr. Hedges.

[105]     In sum, I
do not see it as necessary to draw a strong adverse inference in the
circumstances of this case. While I agree the absence of Dr. Hedge’s
current information counsels caution regarding the plaintiff’s pre-Accident
position related to his addiction and substance abuse, his clinical report is
quite instructive on the long-term risks and effects of drug addiction. This
represents a significant negative contingency for future employment,
irrespective of the Accident, that deserves some weight.

II.              
Prospects for Recovery from
Addictions

[106]     Looking at
future positives, however, the evidence indicates that the plaintiff has taken
important steps towards treatment. I accept the plaintiff had eight visits in
total with Dr. Hedges before the Accident. Dr. Hedges was optimistic
about his progress, at least as of December 13, 2013. We know he attended the
Cedars facility on Vancouver Island in January 2014, and was discharged on
January 21, 2014. He had been a resident in a rehabilitation centre at least
three months before the trial began and continued to live there during the
trial. In short, the plaintiff sought, and continues to seek, treatment for his
addictions. Because Dr. Hawkeswood assumed the plaintiff was recovering
from addiction, his opinion on the prospects for symptom improvement with
various proposed modes of physical therapy was positive.

[107]    
On the narrow question of causation, I found Dr. Hawkeswood’s
discussion at p. 5 of his report instructive. He stated in part:

Prior to the subject [A]ccident,
[the plaintiff] had a history of low back pain lasting a few years, lumbar
surgery with a prolonged recovery course, obsessive compulsive disorder,
polysubstance abuse, and probably some type of mood issue (noting that the
clinical records indicate bipolar features, as recorded by a psychiatrist).
With this information in mind, I believe [the plaintiff] is vulnerable to a
more exaggerated and protracted course of symptoms by way of future trauma.

[108]     The
defendants must compensate the plaintiff as they found him. His position
included his polysubstance abuse, and a compulsive addiction to narcotic
analgesics for pain control. It is not unforeseeable that a plaintiff suffering
chronic pain could be treated with addictive medications for pain and become
addicted to them. However, just as the defendants must take the plaintiff as
they found him, so too must the plaintiff live with the negative aspects of his
position when it comes to consider his future prospects without the Accident.
Even if it could be found that the plaintiff made progress, or made a near
complete recovery, or even a full recovery, considering his history of
addictions, I find the plaintiff had a substantial risk of relapse,
irrespective of the Accident. On the other hand, the defendants injured a
plaintiff with poor pain-coping mechanisms and greater than normal
susceptibility to addiction to narcotic analgesics, accompanied by a risk he
could migrate to heroin, given its close chemical proximity to narcotic
analgesics, as Dr. Hawkeswood and Dr. McCarthy explained.

[109]     Therefore,
I find some augmentation for non-pecuniary damages is justifiable. The
augmentations should be moderate; however, considering all the circumstances,
including the real and substantial chance that the plaintiff would have overcome
his addiction, though remain vulnerable to it, irrespective of the Accident.

    
3.         
Mental Conditions

[110]     The
plaintiff claims the Accident caused him to suffer depression, mood
disturbance, and anxiety. The plaintiff doubtless has a relevant psychiatric
history, one that goes back to his childhood, with diagnoses that include: OCD;
possible bipolar disorder; and depression, more recently after he failed the
apprenticeship exam, three years before the Accident when, according to his
testimony, he became unmotivated and spent long periods at his parents’ home,
lying on the couch.

[111]    
Apart from the plaintiff’s unreliable evidence that he had completely
recovered at the time of the Accident, there is no independent evidence to
support a finding he no longer suffered from a psychiatric disorder when the Accident
occurred. No psychiatric opinion on that question was rendered. Dr. Victoria
Dmitrieva is the plaintiff’s treating psychiatrist. The plaintiff did not
submit a report from her. The court did however have a Fraser Health clinical record,
dictated on September 9, 2011. It does not contain a clinical psychiatric
diagnosis, but it does include Dr. Dmitrieva’s clinical observations of
the plaintiff’s state then:

…His pain is chronic,
subjectively rated as moderate. His mood is better …. On interview, he was
fully relaxed, not objectively in pain at all, cheerful and joking etc.
[Exhibit 1, page 118].

[112]     This was
an improvement compared to July 13, 2011, when he saw Dr. R. Shick, as an
outpatient.

[113]     The court
should have had a report from Dr. Dmitrieva on the plaintiff’s psychiatric
condition and an opinion on the possible linkage between the Accident and the
plaintiff’s current psychiatric functioning and prospects.

[114]     Overall,
the evidence indicates a link between the plaintiff’s emotional problems and
addiction. I cannot find the Accident solely originated depression or anxiety
in the plaintiff after the Accident. But weighing all the evidence, I accept
the chronic pain condition he developed after the Accident, combined with his
inherent inclination to catastrophize his condition beyond what his physical
injuries warranted, lowered his mood. I also find, however, irrespective of the
Accident, that unless he were to successfully participate in a drug addiction
recovery program, he likely would have suffered from some emotional/mood
problems and depression.

[115]     That
found, and on the positive side, the evidence also gives some indication that the
plaintiff is sociable, has a likeable personality, and can work with others.
These are positive characteristics for employability, both pre- and post-Accident.

       2         
Intervening Post-Accident Events

[116]     The
defendants drew the court’s attention to certain noteworthy incidents that
occurred after the Accident for which the plaintiff had little memory or
explanation. The defendants submit these events intervened in the chain of
causation and negative or diminish their responsibility for the plaintiff’s
alleged losses: Athey v. Leonati, [1996] 3 S.C.R. 458 [Athey].
The incidents are as follows:

a)    On October 26,
2010, the plaintiff saw Dr. McCarthy. The plaintiff reported that he fell
four days earlier because of a sharp pain in his leg. He banged his back. Dr. McCarthy
could not shed any light on this.

b)    On October 25,
2012, Dr. McCarthy noted the plaintiff had been involved in a single vehicle,
motor vehicle accident. The plaintiff did not remember the Accident itself. He
only recalled being in the car after impact and calling the ambulance. He
complained of neck and shoulder discomfort from the Accident.

c)     On
December 28, 2012, Dr. McCarthy recorded that on December 19, 2012, the
plaintiff fell down two or three stairs and had to attend Royal Columbian
Hospital, where he was diagnosed with multiple foot fractures. He had an
orthopedic appointment for mid-January 2013, but the court has no clinical
information on diagnoses and treatment following that appointment, although Dr. McCarthy
did note the plaintiff saw her to discuss pain he was experiencing and to
receive pain medications.

d)    On June 5, 2014,
he told to Shannon Smith, the occupational therapist who conducted the
functional capacity assessment, that he was experiencing bilateral forearm pain
in his hand related to his use of a sledgehammer two days earlier, when he was
helping a friend on some kind of demolition project [Exhibit 1, p. 541].

e)    In June 2014,
the plaintiff told Ms. Sharma, the vocational rehabilitation consultant,
that he “had recently been arrested for fighting, and was in jail for 2 weeks.
He state[d] that he has a criminal record, although [he] has not been
formally charged with the most recent arrest for assault.” Without information
about the nature of the record, the date of conviction, the sentence, the
circumstances of the offence, and the plaintiff’s age at the time, only slight
weight can be assigned to having a criminal record when it comes to assess loss
of future earning capacity without the Accident [Exhibit 1, p. 569].

[117]     These
intervening Athey events are not trifling. But as for any medical
consequences, the court has no qualified opinion to medically define the extent,
if at all, to which they aggravated the plaintiff’s condition when they
occurred. Whether these intervening incidents aggravated or prolonged recovery
from the Accident hang in the balance and require speculation to tip in favour
of the defendants.

[118]     However,
the events do raise more questions about the reliability of the history the
plaintiff gave the court. As we saw, there are already significant gaps in the
timeline of events and in the plaintiff’s activities for the period between
August 2008 and April 2010. Activities during those gaps are important. They
occur soon after the Accident; a time when one expects to see the most
complaints of pain, visits to the doctor, and a pursuit of therapy — keeping
in mind physiotherapy had been prescribed for the plaintiff early on.

[119]     These
episodes are also relevant because they intimate sufficient functional
capacity. The plaintiff was able to drive the three to four hour distance back
and forth between Seattle and the Lower Mainland, physically able enough to
help a friend demolish a building, even if for a short time. Given the
plaintiff’s claims of pain and disability, picking up and swinging a
sledgehammer stands at the bottom of a list of actions one might expect to hear
from a person so much pain that only narcotic analgesics can control it.

[120]     That
acknowledged and taken into consideration, the evidence still does not answer
the question of whether, and to what extent, those incidents impacted the
plaintiff’s Accident injuries.

      
3         
Summary of Findings on Causation

[121]     I find the
following basic facts:

a)    the plaintiff
suffered a neck and shoulder injury from the Accident that healed within two
weeks;

b)    the plaintiff
had not fully recovered from his 2005 lower back injury and the subsequent
August 6, 2006 discectomy when the Accident occurred, but he had improved and
was still in recovery mode;

c)     before the
Accident, the plaintiff became addicted to narcotic analgesics and likely used
heroin and other non-prescription drugs occasionally. By December 2013, he
began treatment with Dr. Hedges, an addiction specialist, and was making
progress. He attended a drug treatment program on Vancouver Island in January
2014, but was discharged on January 21, 2014 for unacceptable conduct;

d)    in the year
preceding the Accident, I am not persuaded the plaintiff likely completely
stopped use of non-prescription drugs, regularly attended the gym, was pain
free, and was fully prepared to return to work. Assumptions to that effect in
the medical reports are ill-founded;

e)    although not
symptom-free or fully functional again, I find the plaintiff’s lower back
condition had improved and he was on a path of recovery from his prior injuries
and symptoms;

f)      I
find the July 1, 2009 Accident had some effect on the same area of the
plaintiff’s lower back, which he injured in 2005 and for which he underwent
surgery in 2006. Specifically, I find the plaintiff suffered a soft tissue
injury that aggravated his low back at L4-L5, where he had previous surgery.
Pain was primarily right-sided, but he eventually developed left-sided pain as
well. I am not persuaded the plaintiff suffered a small disc herniation at the
L4-L5 level at the time of the Accident;

g)    the plaintiff
experienced pain in the right hip caused by a soft tissue injury. I accept Dr. Hawkeswood’s
opinion that the Accident caused the plaintiff’s right hip pain; its
biomechanical origins are not clear. I also prefer Dr. Hawkeswood’s
opinion that there is a low probability that his hip pain radiates from the
plaintiff’s spine at L4-L5;

h)    I find the
plaintiff will not fully recover from the aggravating effects of the soft
tissue injuries he sustained to his low back from the Accident. I also accept Dr. Hawkeswood’s
opinion, however, that irrespective of the Accident, the plaintiff likely would
have experienced a recurrence of his low back at an indeterminate time, and
with a severity that cannot be definitely specified;

i)       I
find that irrespective of the Accident, the plaintiff would never have fully
recovered from his previous injury to his low back and be relieved of all the symptoms
it produced; but with diligent pursuit of therapy and physical activity, he
likely would have seen improvement;

j)      as
for the plaintiff’s current injuries, I accept the common medical opinion that
with regular aerobic exercise, stretching, and continued avoidance of opiate
medications, the plaintiff’s low back, left leg, and right hip pain will
significantly improve. I also accept Dr. Hawkeswood’s opinion that low
back pain, left leg pain, and right hip pain will continue to be a problem on
an periodic basis [Exhibit 1, p. 23];

k)     I accept Dr. Hawkeswood’s
opinion that with the Accident the plaintiff could return to gym activity,
provided he avoids heavier lifting such as squats and deadlifts, overhead
lifting, and high impact aerobic activity. I also accept that his tolerance for
high-intensity workouts is permanently hindered by the effects of his Accident
injuries, but that he could tolerate moderately intense resistance-based
anaerobic activity provided he stretched and took short breaks [Exhibit 7,
p. 7];

l)       I
find the plaintiff’s testimony regarding the nature of his symptoms was
exaggerated, particularly when compared to statements he made to various
caregivers and to the clinical observations they made. For example, on November
24, 2010, when the plaintiff saw Dr. Padilla, the surgeon behind the
August 2006 discectomy, he noted in his consultation report that the plaintiff
was not in distress; that his lumbar spine range of motion was normal to
flexion; and that extension, lateral bending and rotation, did not solicit any
significant pain [Exhibit 1, p. 92]. Dr. Hawkeswood noted the
plaintiff remained seated during a 45-minute interview after his having
complained he could not sit for more than 10 minutes. However, Dr. Hawkeswood
testified on redirect that it is not uncommon to see those contradictions
because close questioning can distract the patient. He also noted the
plaintiff’s tendency to catastrophize, as mentioned earlier;

m)  I acknowledge that the
diagnosis of chronic pain and its symptoms do not always correspond to
objective findings in persons with that diagnosis. That said, I find that some
doubt is warranted regarding the plaintiff’s complaints of severe ongoing pain,
given his drug seeking behaviour, long-standing addictions, and the objective
observations of medical experts. I note the plaintiff’s statement that his pain
is mostly moderate; but I accept he has had some severe periods of pain that
have been upsetting and inclined him to become pain focused. I note as well
that the plaintiff felt his pain was sufficiently bad to undergo a second
discectomy, as opposed to the less invasive choice of steroid injections
offered to him. In short, I see evidentiary signposts that call for caution and
I find that the plaintiff sometimes exaggerated the nature and extent of his
symptoms, but also assign reasonable weight to Dr. Hawkeswood’s insight
that the plaintiff was vulnerable to more exaggerated and protracted symptoms
from future trauma because of his history and poor pain coping skills;

n)    while I find the
plaintiff did not suffer constant severe pain, moderate pain over an extended
period with episodes of severe pain, can take its toll;

o)    as for
recreational activities, I find it unlikely that but for the Accident the
plaintiff would have returned to strenuous gym workouts, lacrosse, ATVing, or
fly fishing in turbid water with a bouldered river bed. I find the plaintiff
has not been able to walk as far as he could before the Accident. I find that
but for his Accident injuries he could have been more active generally and that
he could have walked his dog further than the 1.5 km he currently does.
However, with more activity and exercise, he could end up walking as far as he
could prior to the Accident;

p)    I find the
plaintiff’s injuries did not have a remarkable effect on his daily living
activities; and

q)    as for the
plaintiff’s social life, the defendants point to inconsistencies in the
plaintiff’s case. The plaintiff told the court about his visits to Seattle to
see friends living there. Mr. Vassos told the court about the plaintiff’s
likability when he worked as a production assistant. Also notable is the
plaintiff’s statement to Shannon Smith, the occupational therapist, that he
sees his friends a lot and spends most of his time out of the house [Exhibit 1,
p. 537]. The plaintiff told the court, as well, that he had been living in
a recovery house in Surrey with his girlfriend for the past eight months. The
plaintiff’s mother gave the court a bleak portrayal of the plaintiff’s social
life; he rarely sees friends and does not socialize anymore. Overall, I find
the July 1, 2009 Accident had little impact on the plaintiff’s social life,
which consists with his outgoing personality.

DAMAGES

      
1         
Non-Pecuniary Damages

[122]    
In Stanley v. Hejslet, 2006 BCCA 34 at para. 46, the Court
of Appeal suggested a non-exhaustive list of factors that could influence an
award of non-pecuniary damages:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life;

(g)        impairment of family, marital and social
relationships;

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle.

[123]     As
intimated earlier, inconsistencies and gaps in the plaintiff’s narrative of
events and his pre-and post-Accident addiction to narcotic analgesics muddy
assessment of the nature and extent of his injuries and how they have affected
his life. Only the plaintiff, his mother, and to a limited extent, Jeff Brown,
gave some insight into his living circumstances in the eight months preceding
the Accident. Mr. Vassos shed some light on his situation between 2011 and
2013. The court has no current information from Dr. Hedges, or from the
psychiatrist who had been treating him, Dr. Dmitrieva. The assessment of
the genuineness of the pain and disability the plaintiff claimed is further
muddied by plaintiff’s drug-seeking behaviour based on claims of intolerable
pain and his tendency to catastrophize, as noted by Dr. Hawkeswood.

[124]     I should
note my view that the plaintiff’s history of addiction, while a significant
factor when assessing damages, should not negatively dominate all assessment of
his potential before and after the Accident, bearing in mind that it is a treatable
illness and that some addicts recover.

[125]     The defendants
submit the appropriate range for non-pecuniary damages lies between $40,000 and
$75,000 with a contingency reduction of 10% to 30%. Counsel referred the court
to the following cases:

1.       In Loft
v. Nat, 2013 BCSC 1568, the plaintiff was a 46-year-old male employed or
self-employed in the automotive sales business, with pre-existing degenerative
issues in his back, as well as addiction issues pre-dating his accident. The
court awarded $40,000 in non-pecuniary damages.

2.       In Crane
v. Balmforth, 2014 BCSC 1899, the plaintiff was an unmarried 47-year-old,
residing in his mother’s home. The plaintiff had pre-existing injuries and
conditions, including an addiction to opioid painkillers. The court awarded
$90,000 in non-pecuniary damages, but applied a 30% discount for an ultimate
award totalling $63,000.

3.       In MacIntosh
v. Davison, 2013 BCSC 2264, the plaintiff was a married, 57-year-old real
estate appraiser and business owner. He had undergone a prior discectomy and
suffered pre-existing back pain and soft tissue issues to his neck and lower
back from two previous collisions. At trial, he suffered from chronic pain in
his lower back and left hip; and sleeplessness and irritability which he
attributed to the third collision. The court awarded $90,000 in non-pecuniary
damages, but applied a 20% reduction for his pre-existing back condition and
prior surgery, for an ultimate award of $72,000.

4.       In Mandra
v. Lu, 2014 BCSC 2199, the plaintiff was a 53-year-old former millwright,
now unemployed and collecting a disability pension after two workplace
accidents. After the relevant motor vehicle collision, he suffered back, leg,
neck, and shoulder pain, as well as headaches, dizzy spells, and psychological
issues (namely depression and anxiety). No longer employable in any job
requiring heavy physical labour due to his injuries, the court awarded the
plaintiff $75,000 in non-pecuniary damages.

[126]     The
plaintiff submits the appropriate award for non-pecuniary damages is $150,000,
with a gross up of $30,000, to give a total of $180,000 for his heroin drug
addiction: Fabretti, para. 93. He relied on the following cases:

1.       In Al-Hendawi
v. Sidhu, 2006 BCSC 522, the 37-year-old plaintiff was a doctor, who
suffered soft tissue injuries to his knee and lower back in a motor vehicle
collision. His knee pain resolved, however his back pain continued, requiring
surgery. At the time of trial (5½
years post-accident) he remained partially disabled and would continue to
suffer chronic pain in his lower back. In 2006, the court awarded $150,000 in
non-pecuniary damages.

2.       In Zawadzki
v. Calimoso, 2011 BCSC 45, the 38-year-old plaintiff was an automobile
technician, who suffered injuries to his elbow (requiring surgery), lower back,
ribs, shoulder and right wrist. He was left with a permanent partial disability
due to his elbow injury, which subsequently led the plaintiff to alcoholism,
personality changes, and other issues. The court awarded $144,000 in general
damages.

3.       In Bains
v. Brar, 2013 BCSC 1828, the plaintiff was a 26-year-old machinist, who
suffered injuries to his neck and lower back as a result of a motor vehicle
collision. He later developed injuries in his upper back and shoulders, and
required surgery for a disc herniation in his lumbar spine. Post-surgery, the
plaintiff suffered from chronic pain and was unable to return to work. He had a
temporary major depressive disorder, but did not develop an addiction to drugs
or alcohol. The court awarded $130,000 in general damages.

[127]     I award
the plaintiff $80,000 for non-pecuniary damages, augmented by $10,000, for
heroin addiction following the Accident, for a total of $90,000. This is
reduced by 20% for a failure to mitigate a damage, which is specifically
addressed shortly in these reasons. This leaves an award of $72,000 for
non-pecuniary damages, which should be rounded up to $75,000, as assessments
are not that exacting.

      
2         
Loss of Past Earning Capacity

    
.1         
Education

[128]     The
plaintiff graduated from Grade 12 on July 20, 2002, with roughly an overall C+
average. Notably, his transcript shows B’s in grade 11 Math and Physics. Those
grades bespeak some academic ability and do not argue that his aptitudes would
impede his ability to learn technical information required for retraining.

[129]     After
graduation, he moved to Calgary, Alberta, where he worked as a cook and
bartender at the Red Lobster. He attended SAIT Polytechnic and, in his fall
2004/2005 term, completed a pre-apprenticeship electrician course.

[130]     The
plaintiff left SAIT Polytechnic after one term. He explained he left because
his father had been a member of Local 213 of the IBEW, and that it would be
easier for him to get into the Union and complete an apprenticeship in B.C.

[131]     In
January/February 2005, the plaintiff returned to British Columbia. On February
21, 2005, he entered the apprenticeship program administered by the EJTC for
IBEW, Local 213. He undertook his technical training at the British Columbia
Institute of Technology [“BCIT”].

[132]     The
plaintiff worked for Western Pacific Enterprises GP and Canem West during his
apprenticeship.

[133]     The
plaintiff’s February transcripts indicate that the plaintiff failed his
Electrical Level 2 exam in the winter 2007 term. He rewrote it before he could
move into Electrical Apprentice Level 2. In the spring/summer 2008 term, which
ran from July 20, 2008 to October 3, 2008, he failed Level 3 with a grade of
33%.

[134]     The
plaintiff explained that from the very beginning his physical limitations
inhibited his ability to complete the apprenticeship program, and gaps in his
performance occurred because of the 2005 work injury/August 2006 L4-L5
discectomy.

[135]     On March
13, 2007, the plaintiff met with Andy Cleven, who, at the time, was the
training director for the EJTC. Mr. Cleven’s interoffice memo confirms
that he met with the plaintiff about his then recently-failed exam. Mr. Cleven
noted that the plaintiff was still on wage indemnity at the time, with a
prospect for his return to work in April 2007. That never occurred. He
confirmed the plaintiff told him that he was “frustrated about having to repeat
Level 2 and was considering his career options.” According to Mr. Cleven’s
notes, he told the plaintiff that if he wished to pursue other career options,
the EJTC would terminate his apprenticeship.

[136]     The
plaintiff denied recalling receipt of a February 20, 2008 letter asking to call
the EJTC office and schedule a convenient time to discuss his apprenticeship.
He also did not recall a second letter dated October 17, 2008 requesting the
same. The plaintiff testified he found the electrical work Level 3 exam hard
and that he had been avoiding discussion about his failure at that time. He did
not want to meet anyone from EJTC or BCIT to discuss his retaking of the
electrical work Level 3 exam. When asked on cross-examination whether he could
see himself in a career as an electrician, the plaintiff explained that he felt
depressed and unsure.

[137]     When asked
to explain the work gap between the October 2008 letter and the July 1, 2009
Accident, the plaintiff stated he wanted to work again with Canem West; he did
not pursue a position with any other EJTC companies, and did not put his name
on the IBEW, Local 213 job pool.

[138]     The
plaintiff later testified he overlooked his having made a call in May or June 2009
to Jeff Brown of Canem West, and about the possibility of a return to work with
the company. Mr. Brown recalled a discussion about work then, but did not
recall when the call occurred. That conversation is the only evidence of any
pursuit of employment by the plaintiff after his claimed full recovery from the
first discectomy (before the Accident).

    
.2         
Employment since the Accident

[139]     The
plaintiff worked as a production assistant for Mr. Costa Vassos and other
unidentified production managers between 2011and 2013. His work included
setting up tents, prepping the stage area, cleaning up, controlling traffic,
and other preparatory tasks necessary before shooting started. He also called
‘quiet on set’, etc. The plaintiff testified he found work such as moving
tables and chairs around taxing and that he needed help doing this and some of
the heavier tasks. He mentioned Mr. Vassos had hired another production
assistant at the same time he was hired, implying it was his physical
limitations that had necessitated it.

[140]     The plaintiff
quit the job, although I find that significant amounts of work in that position
remained available to him. On direct examination, he explained he quit because
it was not financially feasible to keep the job, that he was handicapped, and
that Mr. Vassos no longer required him. On cross-examination, the
plaintiff explained the work lasted up to 24 hours and he found this difficult.
He told Dr. Hawkeswood the work lasted up to 15 hours. Likewise, Mr. Vassos
testified that after 15 hours, the plaintiff earned overtime. Mr. Vassos
explained production assistants at the time earned $185 a day (now increased to
$210 a day). Given this evidence, therefore, the plaintiff could have earned
roughly $3,700 in a month, more with overtime. The evidence did not address the
average number of monthly work days available to production assistants, but
considering Mr. Vassos’s testimony, I find the plaintiff could have kept
himself fairly well employed as a production assistant.

    
.3         
Evidence of Employer Costa Vassos

[141]     Costa Vassos,
a B.C. film producer, testified the plaintiff performed well as a production
assistant between what he best recalled was 2011 and 2013. He knows the
plaintiff both personally and professionally. He hired the plaintiff after the
plaintiff had contacted him on Facebook and mentioned to him he was unemployed.
Mr. Vassos suggested the plaintiff work for him as a production assistant.
He was aware the plaintiff had an accident and some physical limitations, but
he “took care of him”, as he put it.

[142]     Mr. Vassos
recalled that between 2011 and 2013, the plaintiff worked for him on four to
six movies, in addition to work performed for other producers. On direct
examination, he testified he hired an extra person to assist for some tasks
such as setting up tents, which are heavy and have to be carried around over
the shoulder. He also testified it takes two people to move tables and chairs
around.

[143]     On
cross-examination, Mr. Vassos testified that the plaintiff could perform
all the necessary duties, but could not stand for long periods or carry heavy
objects. He testified there were some times that he could not sit and needed to
move around.

[144]     He
testified that due to budget restraints, he could no longer hire two people;
that he had been criticized by the Comptroller for having two production
managers on site; and that he had to cut the plaintiff. However, his testimony
indicated some tasks, such as moving tents and heavy propane tanks, need two
people to move them around, irrespective of limitations the plaintiff had.

[145]     On direct
examination, Mr. Vassos testified that the plaintiff was good to work
with, was funny, and that the crew liked him; and on cross-examination, that
his personality “opened doors for him to networks”.

[146]     He also
testified that he recommended the plaintiff to other production managers. On
cross-examination, he testified that he advised them they would have to hire an
extra assistant; they knew this, and accepted his limitations. He stated you
have to “keep care of friends”. He stated that the plaintiff was well-liked on
the site.

[147]    
Questioning the reliability of Mr. Vassos’s testimony, defence
counsel cross-examined Mr. Vassos on the apparent contradiction between
his testimony and what he stated in his letter dated July 11, 2013 [Exhibit 1
p. 487]. In it, he stated:

Re: [The plaintiff]

To the Honourable Court,

I am a Location Manager/ Independent Contractor in the BC
Film Industry. In that role I am a member of the Director’s Guild of Canada,
the filmmaker’s union in this country.

I have operated this proprietorship for 15 years.

I frequently hire production assistants.

I have hired [the plaintiff] a number of times in the past
few years, and he is capable, reliable and honest. I am impressed with him such
that I have recommended him to other Production Management companies. I have
never had anything but complementary reports about [the plaintiff] in these
placements.

I have work for him this August (2013) in a Sci-Fi film
called “Zodiac-Signs of Destruction”. [The plaintiff] is on my call list, so
whenever I have a new project, he is one of the first production assistants I
call.

I would be pleased to provide
other information if requested.

[148]     Mr. Vassos
sought to justify the apparent discrepancies with a gloss on the difference
between the plaintiff’s work ethic and his work ability, which was in direct
contrast to his letter. Whatever his limitations, he recommended the plaintiff
to other location managers and they hired him. On cross-examination, Mr. Vassos
denied he helped build connections in the film industry, important to being
successful in the industry. He explained it was not necessary because the
plaintiff was “doing great”; that “his personality opened doors to networks”,
and that, for his part, all he had to do was open the door for him. He also confirmed
he would hire the plaintiff again in his own production company.

[149]     Mr. Vassos’s
letter does not consist with the tenor of his testimony, which focused on
limitations his letter did not mention. The impression left was that the letter
was intended as a letter of reference. In any case, he testified other managers
to whom he had recommended the plaintiff were aware of and accepted his
limitations. His testimony that he would have continued to hire the plaintiff
is inconsistent with the plaintiff’s testimony that no more work was available
to him as a production assistant. I find the testimony of both the plaintiff
and Mr. Vassos in this this area about the availability of work and the
plaintiff’s physical limitations has to be viewed cautiously.

[150]     The plaintiff
did not seek any medical advice on whether he should continue to work as a
production assistant. He never contacted Mr. Vassos or other producers to
find any available work opportunities.

     .4         
Resumption of Apprenticeship

[151]     Although
suffering from depression after he failed the Level 3 electrical apprentice
exam in October 2008; the plaintiff maintained that by July 1, 2009, everything
was going well, working out, and he was ready to go again. Yet as we saw
earlier, he never took any steps to enrol again in the apprenticeship program
before the July 1, 2009 Accident. The only independent evidence of an attempted
return to work before the Accident was the May or June 2009 conversation the
plaintiff recalled having with Jeff Brown, Canem West’s electrical supervisor.

     .5         
Testimony of Jeff Brown

[152]     Mr. Brown
confirmed the plaintiff worked as an apprentice for him in November 2007. He
recalled that he was “good” and “smart”. He recalled a fifteen minute
conversation with the plaintiff that occurred in roughly May or June 2009, full
of laughs about times they had shared at the company. He recalled the plaintiff
asked if he could get back with the company, which had previously laid him off
due to work shortages. Mr. Brown testified he told the plaintiff he was
interested; that he would recommend him; and that if he showed up, he would be
hired. The plaintiff never got back to him, however; and he never spoke to him
again, leaving him to wonder why he had not called him back. There was no clear
evidence of the nature of the work that might have been available to the
plaintiff, when it would have started, or any other particulars.

    
.6         
Findings on loss of past earning
capacity

[153]     The
plaintiff has not sought any further employment apart from his work as a
production assistant. He mentioned some interest in working as a paramedic, but
did not take any concrete steps in that direction. He did not apply for any
sedentary positions or for any of the types of work he did in Calgary, such as
waitering or bartending. The plaintiff had not prepared a new resume since the
last one he made in 2005; and has not sought further medical assistance to
foster a return to employment.

[154]     The
defendants submit the evidence shows that the plaintiff did not intend to seek
or maintain employment before or after the Accident. The plaintiff testified he
knew his limitations, and for that reason, did not try to find work, except as
previously noted.

[155]     The
plaintiff seeks an award of $98,162.34 for past net income loss. This assumes
that without the Accident, he would have completed the apprenticeship program
by January 2013 (3½
years post-Accident); and that he would have earned a scaled 60%, 70%, 80%, and
90% of the starting salary for a journeyman electrician.

[156]     The
plaintiff’s figures assume that without the Accident, he would have returned to
the apprenticeship program and earned the said percentage of the earnings an
average journeyman apprentice would have earned until he eventually earned
journeyman status. The plaintiff testified that this was his intention at the
time, but whether he would have done so is questionable. As noted, after he
failed his Level 3 exam in October 2008, he became depressed and sat around his
parents’ house and he had expressed doubt to Mr. Cleven on whether he was
able to complete the apprenticeship.

[157]     The
plaintiff’s T4 and other employment earnings for 2007 and 2008 totalled roughly
$11,700 for each year. His T4 earnings for 2012 were $10,478; and for 2013,
$4,555. He reported no earnings from 2009 to 2011. He earned $1,965 for a Workers’
Compensation Board (“WCB”) injury in 2012 (no particulars were given on that
injury). The combination of T4 earnings, other income, WCB, and social
assistance produced a total income in 2012 of $17,015. The plaintiff appears to
have received social assistance when he worked for Mr. Vassos and other
producers. In 2013, his T4 earnings were $4,555; inclusive of social
assistance, $13,233.

[158]     The
plaintiff’s earnings in the year before the Accident indicate T4 earnings of
about $11,700, which were well below full-time equivalent earnings, even for
minimum wage. He earned $1 in 2009. Except for the half-year after July 1,
2009, a year or so before the Accident, a time when the plaintiff was supposed
to have been fully recovered from his 2005 injury and his 2006 surgery.
Further, his reported earnings as a production assistant post-Accident do not
reflect the level of remuneration projected by Mr. Vassos. In any case, his
reported earnings in 2012 differ little from his 2007 and 2008 earnings.

[159]     I reject Mr. Benning’s
(the economist’s) scenario. A realistic assessment of past loss of earning
capacity in this case has to be based primarily on the plaintiff’s past
performance in the year preceding the Accident. This period also reflects a
history of apparent reluctance to work before the Accident. Considering all the
evidence, including the plaintiff’s surgery performed by Dr. Gittens on
November 2, 2011, allowing for a reasonable recovery period, and a 50%
improvement after surgery, and subject to a reduction for failure to mitigate,
which is discussed later in these reasons, I assess past loss of earning
capacity at $40,000.

      
3         
Loss of Future Earning Capacity

[160]    
A plaintiff may have a pre-existing condition that formed part of their
position when the Accident occurred. As explained in Athey, the
defendants are responsible only to restore the plaintiff to their “original
position.” They are not responsible to compensate the plaintiff for
debilitating effects of a pre-existing condition they would have experienced
anyway. The defendants are liable for the additional damage, but not
pre-existing damage or conditions. The risk that the plaintiff’s pre-existing
condition would have detrimentally affected the plaintiff in the future can be
taken into account to reduce the overall award, regardless of the defendants’
negligence.

[161]     The
plaintiff submits the court should accept the scenario calculated by the
economist, Mr. Benning, that without the Accident: the plaintiff would
have completed his Journeyman Trade Certificate by January 2013 (3½ years
post-Accident); that he would have worked in British Columbia to retirement
with average-earnings as a journeyman electrician; that over his working years,
he would have earned a total of $1,691.482. This figure has been adjusted for
average employment contingencies for electricians in B.C. Mr. Benning’s
calculations also assumed that with the Accident: the plaintiff would have
earned only $10,000 annually. Based on all these assumptions, this produced a
present day loss of $1,431,451, for loss of future earning capacity.

[162]     The
defendants submit the plaintiff failed to establish a real and substantial
possibility that but for the Accident he would have completed the
apprenticeship program and had a career as an average journeyman electrician.
They also deny he has suffered a loss of earning capacity. They say the
plaintiff’s pre-Accident history exhibits a long period of low back pain, and a
persistent pattern of a lack of motivation, with long periods of unemployment
and mental health problems. They submit that regardless of the Accident, the
evidence shows the plaintiff never would have completed the apprenticeship
program; and that his pre-Accident back problems at L4-L5, his criminal record,
and subsequent intervening events raise barriers to future employment and his
reasonably predictable earnings.

[163]     Mr. Benning
based his calculations on the combined earnings of electricians and industrial
electricians. Industrial electricians earn 31% to 32% more than regular
electricians. Removal of industrial electricians from the cohort would reduce
his projected (without Accident) earnings by $118,403. Further, as journeymen
electricians earn about 15% more than uncertified electricians and industrial
electricians (combined), removing those workers from the cohort reduced
projected without-Accident earnings by $253,722. Removal of the cohort of
industrial electricians and journeyman electricians from the projected figure
of $1,691,482 therefore, leaves a projected income of $1,319,357 and, assuming
annual with-Accident income of $10,000, would leave a total adjusted net
projected loss of $1,059,326.

[164]     The
plaintiff submits that the vocational assessment of Ms. Sharma and the
functional capacity assessment of Ms. Smith demonstrate the plaintiff’s
compromised post-Accident condition. The plaintiff highlights his diminished
stamina, sleep disorder, compromised emotional status, and his Accident-caused
drug addiction, which, in sum, leave very limited scope for future employment
prospects.

[165]     This
submission fails to account for Ms. Smith’s testimony that during testing
the plaintiff put in varying levels of effort; that his limitations in certain
areas, such as below waist bending, etc., was unclear, and that she had full
confidence only in her test results for upper body testing. Furthermore, the
plaintiff complained to Ms. Smith about an injury to his forearm that he
sustained two days earlier from use of a sledgehammer while helping a friend
demolish his house. She thought this might have affected the tests. The
plaintiff’s submission also fails to account for the fact that the plaintiff
complained of nausea during testing; that on the first day, he appeared
extremely fatigued; and that on the second day, he was more alert and completed
the testing without any issues. While Ms. Smith opined the plaintiff did
not have the physical capacity to work part-time or full-time at the time of
testing, she based this largely on the lack of physical endurance he had
exhibited on the one day. She also opined exercise would improve his
conditioning.

[166]     The
defendants submit the fatigue the plaintiff reported when tested by Ms. Smith
and Ms. Sharma likely stemmed from his lifestyle at the time, not Accident
injuries. This is speculative, but the fact the plaintiff had more energy on
the second day of testing does consist with a transitory explanation for his
fatigue on the first day. Unfortunately, Ms. Smith did not explore this
question.

[167]     None of Ms. Sharma’s
suggested future occupations required training, which artificially limits the
scope of the plaintiff’s potential earnings. Ms. Sharma commented
negatively on the plaintiff’s suitability for formal academic training. In my
view, formal academic training is not the objective. The plaintiff’s completion
of high school with good grades in subjects such as math and physics bespeaks
of some aptitude for learning technical subjects. The plaintiff presented as
quick-witted and possessed of a good sense of humour. He is liked by others
when at his best, and capable of moderately heavy work. I accept he does not
like bookwork and would not want to be stuck in an office. But with
rehabilitation and some vocational assistance – for which he has sought damages
– there is a substantial possibility he could find an alternative career that,
while it would require some post-secondary training, would offer him a better
balance of mind and body work. I note that without the Accident, the plaintiff
would have had to overcome his dislike of bookwork to successfully become a
journeyman electrician.

[168]     A
suggestion that the plaintiff is either unemployable or incapable of even
part-time work does not stand up to the scrutiny of his demonstrated capacity
over a two-year period, between 2011 and 2014. He worked satisfactorily, if at
times with discomfort, as a production assistant in the film industry. Assuming
accommodations were needed, employers were apparently willing to give them,
according to Mr. Vassos.

[169]     The weight
of medical opinion also argues that exercise, further therapy, and training
would significantly improve the plaintiff’s current earning capacity.

[170]     I find the
list of occupations suggested by Ms. Sharma do not truly represent the
plaintiff’s potential future earning capacity. Her report lacks information
about what caused the plaintiff’s reported fatigue. Notably, her report does
not allow for the positive effects of further physical rehabilitation commented
on by the medical experts; the possibility that the plaintiff will succeed in
his current drug rehabilitation program, which appears to be his first
concerted attempt to confront what is the major stumbling block in his life,
irrespective of the Accident; it does not explore the likely benefits of
further education and training in other fields that complement his aptitudes;
and it does not explore the real possibility that with rehabilitation, he could
obtain and maintain light to moderate part-time work as an electrician.

[171]     Plaintiff’s
counsel submitted that given the plaintiff’s trajectory, there is a substantial
possibility he would have become an electrician or would have engaged in some
other labour-intensive position. The defendants submit that given the
plaintiff’s pre-Accident work history and the obstacles to his successfully
completing the program, this is not a reasonable inference.

[172]     Dr. Hawkeswood
confirmed that with the Accident and with a few months of regular activity, the
plaintiff would be eligible for mild to moderately intense labour and that he could
work full-time with occasional sick days. Dr. Gittens opined the plaintiff
was capable of light to moderate employment duties.

[173]     Dr. Hawkeswood
opined the plaintiff should avoid: heavy lifting; lifting while twisting,
repetitive bending; and activities with limited opportunity for position
changes. He further opined the plaintiff should tolerate jobs that allow for
transitioning between sitting, standing, and intermittent walking. He thought
it unlikely the plaintiff would tolerate long-distance walking. I note,
however, that since the Accident, the plaintiff has been able to walk his dog
1.5 km a day.

[174]     Dr. Hawkeswood
opined that before the Accident, the plaintiff was probably physically able to
complete the apprenticeship program. Dr. Hawkeswood commented, however,
that electricians’ work encompasses a wide range of physical difficulty. He
recalled the saying popular among electricians that “rewiring is eight times
harder than wiring”. Without the Accident, the plaintiff would have faced
physical limitations to his full employment as an electrician. Dr. Hawkeswood
opined that even in a job as an electrician that offered working conditions
ideal for the plaintiff’s limitations, he would have had to take periods of
time off work. He could not say for sure when this would begin in his career.
He thought the length of the breaks due to his pre-Accident back condition
would vary and that some would have been quite lengthy.

    
.1         
Legal Principles for Loss of
Future Earning Capacity

[175]     Determination
of whether a past event occurred is based on the balance of probabilities. But
what would have happened in the past but for the injury, is not any more
knowable than what will happen in the future. Therefore, the likelihoods of
both future events and hypothetical past events are decided based first on
deciding whether there was (for past events) or is (for future events) a real
possibility. Then the judge must determine the actual likelihood of its
occurring: Smith v. Knudsen, 2004 BCCA 613, at paras. 28 – 29.

[176]     The award
for wages lost before trial is for the loss of the value of any work the
plaintiff would have done but for the Accident. This can be measured in a
variety of ways. In some clear cases, actual wages lost can be calculated. In
some cases, an opportunity to take a higher paying position has been lost. In
some cases, the plaintiff’s former position is no longer available to them, for
whatever reason, irrespective of their injuries; but their injuries have now
limited the number of job opportunities that formerly would have been within
their capacity. The court may have to consider the economy, job availability,
and any other evidence relevant to measuring what the plaintiff has lost.

[177]    
In Rosvold v. Dunlop, 2001 BCCA 1 at paras. 8 – 11, the
Court of Appeal summarized the approach that a trial judge should take in
assessing damages for loss of income earning capacity:

[8]        The most basic of those principles is that a
plaintiff is entitled to be put into the position he would have been in but for
the accident so far as money can do that. An award for loss of earning capacity
is based on the recognition that a plaintiff’s capacity to earn income is an
asset which has been taken away: Andrews v. Grand & Toy Alberta Ltd.,
[1978] 2 S.C.R. 229; Parypa v. Wickware (1999), 65 B.C.L.R. (3d)
155 (C.A.). Where a plaintiff’s permanent injury limits him in his capacity to
perform certain activities and consequently impairs his income earning
capacity, he is entitled to compensation. What is being compensated is not lost
projected future earnings but the loss or impairment of earning capacity as a
capital asset. In some cases, projections from past earnings may be a useful
factor to consider in valuing the loss but past earnings are not the only
factor to consider.

[9]        Because damage awards are made as lump sums, an
award for loss of future earning capacity must deal to some extent with the
unknowable. The standard of proof to be applied when evaluating hypothetical
events that may affect an award is simple probability, not the balance of
probabilities: Athey v. Leonati, [1996] 3 S.C.R. 458.
Possibilities and probabilities, chances, opportunities, and risks must all be
considered, so long as they are a real and substantial possibility and not mere
speculation. These possibilities are to be given weight according to the
percentage chance they would have happened or will happen.

[10]      The trial judge’s task is to assess the loss on a
judgmental basis, taking into consideration all the relevant factors arising from
the evidence: Mazzuca v. Alexakis, [1994] B.C.J. No. 2128
(S.C.) (Q.L.) at para. 121, aff’d [1997] B.C.J. No. 2178 (C.A.)
(Q.L.). Guidance as to what factors may be relevant can be found in Parypa
v. Wickware, supra, at para. 31; Kwei v. Boisclair
(1991), 60 B.C.L.R. (2d) 126 (C.A.); and Brown v. Golaiy (1985),
26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They include:

[1] whether the plaintiff has been
rendered less capable overall from earning income from all types of employment;

[2] whether the plaintiff is less
marketable or attractive as an employee to potential employers;

[3] whether 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] whether the plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market.

[11]      The task of the court is to assess damages, not to
calculate them according to some mathematical formula: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248
(C.A.). Once impairment of a plaintiff’s earning capacity as a capital asset
has been established, that impairment must be valued. The valuation may involve
a comparison of the likely future of the plaintiff if the accident had not
happened with the plaintiff’s likely future after the accident has happened. As
a starting point, a trial judge may determine the present value of the
difference between the amounts earned under those two scenarios. But if this is
done, it is not to be the end of the inquiry: Ryder (Guardian ad litem
of) v. Jubbal, [1995] B.C.J. No. 644 (C.A.) (Q.L.); Parypa
v. Wickware, supra. The overall fairness and reasonableness of
the award must be considered taking into account all the evidence.

[Emphasis in original.]

    
.2         
Conclusions on loss of future
earning capacity

[178]     I find the
submission of $1.431 million for loss of future earning capacity is
disproportionate. It does not account for the plaintiff’s pre-Accident
earnings, apprenticeship history, and the presence of conditions that diminish
his pre-Accident position. It fails to recognize the real and substantial
prospect of improvement in his post-Accident condition, were he to follow the
recommendations of Dr. Hawkeswood and other medical opinion. It also gives
no account for his failure to mitigate the effects of the Accident.

[179]     I accept
that without the Accident, the plaintiff had the physical capacity to complete
the apprenticeship program. But his pre-Accident injury, prolonged and less
than full convalescence, and other aspects of his history calculably lessen the
likelihood that he would have chosen to do so; or, had he returned, would have
successfully completed the program. Before the Accident, poor exam results led
to a protracted depression in late 2008. And although the plaintiff testified
that in the year following the Accident he had fully recovered from the effects
of his first surgery, he did not return to the program or seek employment.
Three or four months pre-Accident, he spoke to Mr Brown about working
again at Canem West as an uncertified electrician, but he did not follow up
with that in the two to three month period before the Accident. When in the
apprenticeship program, the plaintiff expressed doubt to Mr. Cleven
whether he wanted to work as an electrician. I find it doubtful that irrespective
of the Accident the plaintiff was strongly enough committed to the
apprenticeship program that he would have remained committed to it until
January 2013, 3½ years after the date of the Accident.

[180]     Assessing
the probabilities realistically leaves the plaintiff with a much lower
projected figure for without Accident earnings than those assumed by Mr. Benning.

[181]     Post-Accident
intervening events such as his hand injury while using a sledgehammer call for caution.
But as mentioned, no medical or other evidence proposes any long-term negative
implications for employment from those intervening events.

[182]     Given the
uncertainties involved, I find a loss of a capital asset approach is more
fitting. Mr. Benning’s assumptions and calculations provide useful
information. But this case does not suit an assessment of damages closely
allied with the assumptions Mr. Benning laid out.

[183]     I agree
with the defendants that the evidence calls for caution when it comes to
assessment of the plaintiff’s losses. I disagree, however, with the defendants’
position that the plaintiff has not suffered a loss of future earning capacity.
As I just stated, some of the plaintiff’s pre-Accident conditions diminished
his future earnings prospects, irrespective of the Accident. But I find the
July 1, 2009 Accident further diminished his physical capacity to earn income
as an electrician or in occupations that would have placed physical demands on
him for which he would have been more suited without the Accident. I agree the
plaintiff sometimes overstated his symptoms post-Accident, which makes it
difficult to firmly ground his limitations, but it is notable that he felt
sufficiently burdened by pain that he resorted to surgery. Further, Dr. Gittens’
diagnosis of a chronic pain condition is not contradicted. There is little
doubt the plaintiff’s addiction to narcotic analgesics magnified his focus on
pain and his reporting of it. But I accept injured persons who do not have a
history of addiction can also become addicted to narcotic analgesics, some of
them to heroin, which has similar properties to prescription narcotics. Given
his history, the plaintiff was more predisposed than the average person to
narcotic analgesics and to heroin.

[184]     In
summary, after allowing for his pre-Accident position and diminished prospects,
I find the July 1, 2009 Accident diminished the plaintiff’s prospects for
future earnings. It rendered him less capable overall from earning income as an
electrician. It rendered him less capable of completing an apprenticeship
program, despite the significant possibility he would not have done so anyway.
Nevertheless, I remain mindful of and accept Dr. Hawkeswood’s opinion on
the plaintiff’s without-Accident physical limitations and the likelihood for a
recurrence of back pain. I also accept the medical opinions that a focused
rehabilitation program would improve the plaintiff’s functioning and pain. I
find that with further training, the plaintiff can take advantage of a much
wider range of job opportunities to produce significantly higher income than
would minimum wage. The plaintiff does not lack for the intelligence needed to
pursue further technical training. Even so, the plaintiff remains significantly
less valuable to himself as a person capable of earning income in a competitive
labour market. He would have to be out of the labour market for a time to
pursue a field complementary to his limitations and to improve his earning
potential.

[185]     I award
$100,000 for loss of future earning capacity. This includes some recognition of
the time required for possible training, not overlooking the realistic
possibility that irrespective of the Accident, the plaintiff would have required
retraining.

      
4         
Mitigation of Non-Pecuniary
Damages, Past & Future Loss of
Earning Capacity

[186]    
A plaintiff owes a duty to mitigate damages avoidable if they take
reasonable steps: Janiak v. Ippolito, [1985] 1 S.C.R. 146. In a personal
injury case, the duty to mitigate encompasses the seeking and maintenance of
other suitable employment and the undertaking of medical treatment or
recommended therapies that will cure or lessen pain and disability. To the
extent a plaintiff has unreasonably failed to take steps to limit their loss,
their damages will be reduced: Graham v. Rogers, 2001 BCCA 432; Briglio
v. Faulkner, 1999 BCCA 361.

[187]     The
plaintiff failed to mitigate his damages in the following ways:

a)    the plaintiff
did not pursue medical treatment that likely would have proved beneficial for
his recovery in the nine months following the Accident;

b)    although regular
light to moderate exercise was recommended to the plaintiff, he failed to heed
that advice and attended only 16 physiotherapy and six kinesiology treatments
since the Accident;

c)     although Dr. Gittens
thought the plaintiff would have excellent results from epidural steroid
injections, the plaintiff declined to pursue that recommendation based on his
own Internet research and his mother’s advice. Instead, he chose surgery.
Although he improved by 50%. I find that, in the circumstances, a reasonable
person so informed, would have elected to pursue a course of epidural steroid
injections before undergoing surgery;

d)    the plaintiff
did not take any steps to resume his apprenticeship in 2008/2009, when he
claimed to be fully recovered;

e)    the plaintiff
quit remunerative work as a production assistant, although able to perform the
work with reasonable accommodations; and

f)      the
plaintiff did not seek any other employment, although capable of performing
full-time light to moderate work before the Accident.

[188]     I find a
reduction for failure to mitigate damages for past loss of earning capacity is
justified. That award is reduced by 20% to $32,000. For the same reasons, I
have reduced the award for non-pecuniary damages by 20% (and rounded up) to
$75,000. The future loss of earning capacity award of $100,000 assumes that, in
future, the plaintiff will mitigate his income loss by acting reasonably and
following treatment recommendations.

[189]     The award
for cost of future care will be reduced to reflect the contingency that the
plaintiff will not pursue treatment and not incur the costs awarded to him.

      
5         
Cost of Future Care

[190]     To justify
an award for cost of future care, the plaintiff relied on the treatment
recommendations that a rehabilitation program likely would benefit his
recovery. He sought an award rounded to $20,000 for a two-phase rehabilitation
program, and for attendance at a pain clinic. Dr. Hawkeswood recommended
10 to 15 sessions with a kinesiologist, with treatment focused on stretches of
the muscle groups most affected, on core-based activity focused on the lower
body, on routine aerobic activity, and on the avoidance of opiate analgesics:
he recommended the plaintiff continue with current non-narcotic pain
medications. Dr. Hawkeswood also recommended the plaintiff continue with
his psychiatrist to monitor mood and sleep, addictions counselling, and to
attend a gym.

[191]     Ms. Smith
costed out the following: a structured rehabilitation program in the range of
$2,000 to $4,000; and a multi-disciplinary pain management program between
$13,000 and $15,000.

[192]     Ms. Sharma
opined that a two-phase vocational program that would start with volunteer work
and then exploration of paid employment would prove beneficial at a cost of
between $7,000 and $7,500.

[193]     The
defendants submit no cost of future care should be awarded because the
plaintiff is unlikely to pursue the recommended treatment options and because
the plaintiff has not pursued treatment, volunteered, sought employment, or
followed advice on employment options.

[194]     The
defendants relied on Penner v. Insurance Corporation of British Columbia, 2011
BCCA 135 [Penner], at paras. 12 – 14, as authority for the
proposition that any assessment for cost of future care should consider if the
plaintiff is likely to use the items or services in the future. In Penner,
the court was looking mostly at a list of various items such as 80 cold
packs, heating pads, bath mats and a grab bar. At para. 13, Justice
Newbury, quoted the comments of Johnston J. in Travis v. Kwon, 2009 BCSC
63, paras. 109 – 111, where he noted that cost of future care awards were
originally confined to catastrophic cases and were intended to allow “a
catastrophically injured plaintiff could live as complete and independent a
life as was reasonably attainable through an award of damages.”

[195]     Newbury
J.A. noted at para. 13, “This is a reminder that a little common sense
should inform claims under this head, however much they may be recommended by
experts in the field.”

[196]     The care
items before this court are for physical therapy and vocational counselling
recommended primarily by Dr. Hawkeswood, a physiatrist. Dr. Gittens,
a neurologist, also recommended physical therapies. The occupational therapist
and vocational consultant also made recommendations. If the plaintiff follows
the recommendations, I find they will have a positive effect on his
functioning, and improve his prospects for future earnings.

[197]     The
defendants implicitly acknowledged the benefits of the recommended physical
therapy because they criticized the plaintiff for his having failed to pursue
them already and so improve his position after the Accident. The award for loss
of future earning capacity is premised on the plaintiff’s having mitigated his
damages in future. Based on the medical evidence, I find the recommended
treatment is reasonably necessary to promote the plaintiff’s mental and
physical health: Milina v. Bartsch, (1985) 49 B.C.L.R. (2d) 33 (S.C.) at
para. 44.

[198]     It is
arguably unfair to premise an award for a loss of future earning capacity on an
assumption the plaintiff would act reasonably and follow treatment
recommendations in the future, and then decline to make an award that allows
the plaintiff to pay the cost of the treatment recommendations. However, if
there is a realistic chance the plaintiff will not pursue the treatment and
incur the cost, the law calls for a reasonable deduction to reflect that future
contingency.

[199]     An appropriate
award for future cost of care is $3,000 for a structured rehabilitation program
and $13,000 for a multi-disciplinary pain management program. I also award
$6,000 for career and vocational counselling. From this amount, the plaintiff
could also choose to hire a tutor to assist in new learning required for
another recommended occupation or trade for which he would be best suited. This
was not raised, but common sense commends it more than volunteer work, given
the plaintiff’s personality. The gross award, therefore, is $22,000. This
amount is subject to a contingency reduction of $4,000 to reflect the
possibility the plaintiff will not pursue treatment. This leaves a net amount
of $18,000.

      
6         
Special Damages

[200]     First, I
note the defendants’ concerns about double counting of expense claims unrelated
to the Accident. Second, I cannot find the plaintiff’s attendance at the
Vancouver Island drug rehabilitation centre is the defendants’ responsibility.
The plaintiff required treatment before the Accident. When he attended in 2014,
he did not cooperate in the program, and disturbed the participation of others
in the program. The medical equivalent would be undergoing a medical treatment,
deliberately engaging in conduct that frustrated any benefit from it, and then
expecting the party who caused the need for the treatment to pay the bill.

[201]     I find the
defendants’ calculations of special damages and the reasons for them are
reasonable. I award the plaintiff $5,879 for special damages.

Award

[202]     Accordingly,
the plaintiff is awarded the following damages after adjustments.

COSTS

[203]     The
plaintiff is entitled to costs at Scale B, subject to any pre-trial offers that
affect the result.

[204]     The
plaintiff is entitled to court order interest on special damages and on the
award for past loss of earning capacity.

“N.
Brown J.”