IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151021

Docket: M136517

Registry:
Vancouver

Between:

Davinderpal Singh
Litt

Plaintiff

And

Ijaz-Ul Hassan and
Faisal Aftab

Defendants

Docket: M143364

Registry:
Vancouver

Between:

Davinderpal Singh
Litt

Plaintiff

And

Munyee Emily Leung
and Toyota Credit Canada Inc.

Defendants

Before:
The Honourable Mr. Justice G.C. Weatherill

Reasons for Judgment

I.                
Introduction

[1]            
The plaintiff, a taxi driver, claims damages for injuries he suffered in
two separate motor vehicle collisions involving his taxi vehicle (“Taxi”).

[2]            
The first collision was on October 18, 2011 (“First Accident”).  While
exiting a gas station parking lot in Surrey, B.C. and waiting for traffic to
clear, the Taxi was rear-ended by a vehicle being driven by the defendant
Ijaz-Ul Hassan (“Hassan”) and owned by the defendant Faisal Aftab (“Aftab”).  The
plaintiff’s claim for damages in respect of the First Accident is the subject
of Action No. M136517 and includes the following heads of damages:

a)    non-pecuniary
damages;

b)    past wage
loss/loss of earning capacity;

c)     future
loss of income and earning capacity;

d)    cost of future
care;

e)    past and future
loss of housekeeping capacity; and

f)      special
damages.

[3]            
The second collision (“Second Accident”) was on September 28, 2013,
at the intersection of Granville Street and West 16^th Avenue,
Vancouver, B.C. when a vehicle driven by the defendant, Munyee Emily Leung (“Leung”),
failed to stop at a red light and struck the driver’s side of the Taxi.  The
plaintiff alleges that the Second Accident aggravated the injuries he suffered
in the First Accident, but did not cause him to suffer any new injuries.  The
plaintiff’s claim for damages in respect of the Second Accident is the subject
of Action No. M143364.

[4]            
Liability has been admitted by the defendants in both actions.

[5]            
By Consent Order dated December 3, 2014, the two actions were
ordered to be tried together.

II.              
Evidence at Trial

A.             
Background

[6]            
The plaintiff is 36 years old.  He immigrated to Canada from India in
1996 at the age of 17.  He has no formal education beyond having completed
grade 11.  He was married in 2003 in India.

[7]            
The plaintiff currently resides in Surrey, B.C. with his wife, two young
children, his mother and his sister.

[8]            
From 1998 to 2008, the plaintiff worked at various jobs, including
berry-picking and kitchen cabinet manufacturing.  He also worked as a security
guard.  He received Employment Insurance benefits from time to time when he was
laid off from these jobs.  For several months in each of 2007, 2009, 2010 and
2011, the plaintiff returned to India.

[9]            
Since April 2008, the plaintiff has worked as a taxi driver for
Surdell Kennedy Taxi Ltd. (“Surdell”).  The work involves long periods of
sitting as well as bending and lifting luggage into and out of the Taxi.

[10]        
The plaintiff purchased the Taxi new in 2008 and, although he continued
to be the beneficial owner, the registered ownership was transferred to Surdell
as part of an arrangement whereby the plaintiff leases the Taxi license from Surdell.

[11]        
In addition to making lease payments to Surdell, the plaintiff is
required to pay dispatch, airport and other fees as well as the vehicle maintenance
and insurance costs.  He is also responsible for gasoline costs.

[12]        
The plaintiff drives the “day shift”, which during the period 2008 to
2012 was from 5 am to 5 pm.  Thereafter, his day shift changed to 6 am to 6
pm.

[13]        
He arranges for other drivers to drive the Taxi during the 12 hour night
shift.  When the Taxi was not being driven on the night shift, the plaintiff
occasionally worked a longer shift in order to take advantage of peak customer opportunities. 
During his 2009 and 2010 trips to India, he arranged for others to drive the Taxi
during the day shift.  He was paid $80 per shift by the other day and night
shift drivers.  Those other drivers paid for the gasoline consumed during their
shifts but kept the revenues they received from their taxi fares.

[14]        
Prior to the First Accident, the plaintiff was in relatively good
health, was able to perform all vocational, recreational and household
activities without any unusual limitation.  He worked his 12-hour taxi shifts 5
to 7 days per week without any meaningful functional limitations.  In 2005, the
plaintiff had x-rays of his lower back for what was described in the clinical
records as “chronic low back pain”, however, he insisted on cross-examination
that his sore back condition fully resolved before the First Accident.  Although
the plaintiff had occasional headaches and shoulder or other back pain, all were
resolved with over-the-counter pain medication.  He strained a back muscle in
2010 while playing with his daughter but fully recovered within several weeks.

[15]        
In 2010, the plaintiff was the victim of an assault and robbery while
driving his taxi.  His injuries were minor and resolved quickly.

[16]        
Commencing approximately 15 years before the First Accident the
plaintiff developed a condition known as restless leg syndrome, also known as
Willis-Ekbom disease, which is a neurological disorder characterized by an
irresistible urge to move one’s body to stop uncomfortable or odd sensations. 
The disease caused the plaintiff to have problems sleeping.  The plaintiff testified
that, by the time of the First Accident, the syndrome had significantly improved
with the use of medication.

[17]        
Prior to the First Accident, the plaintiff planned to continue working
as a taxi driver until the age of 65 or 70.

B.             
The First Accident

[18]        
The plaintiff testified that, during the First Accident, he felt a “strong
jolt” and hit his head on a CD cover that was attached to the driver’s sun
visor.  Various contents inside the vehicle “scattered”.  Hassan testified that
the Taxi was on a slight downwards ramp from the gas station to the street and
that his vehicle struck the Taxi underneath its rear bumper.  He did not
provide any evidence regarding the force of the impact.

[19]        
After the collision, the plaintiff felt disoriented for a short period
of time.  The Taxi sustained damage that cost $1,922.45 to repair but continued
to be drivable.  The plaintiff acknowledged that he was probably not wearing
his seatbelt at the time of the First Accident.

[20]        
Curiously, the plaintiff described the pain he has suffered since the
First Accident in detail, broken into the following distinct periods:

a)    the date of the
First Accident to December 31, 2011;

b)    January 1,
2012 to June 30, 2012;

c)     July 1,
2012 to December 31, 2012;

d)    January 1,
2013 to September 28, 2013;

e)    September 28,
2013 to December 31, 2013;

f)      January 1,
2014 to June 30, 2014;

g)    July 1,
2014 to December 31, 2015;

h)    January 1,
2015 to June 30, 2015; and

i)       July 1,
2015 to the date of trial.

[21]        
He testified that the First Accident resulted in him suffering the
following pain symptoms:

a)    headaches which
started in his forehead immediately after impact and later moved to the left
side of his head and to the back of his neck.  For the first few months, the
headaches lasted 5-6 hours each day and were of a severity of 5-6 on a scale of
0-10.  Thereafter, the headaches occurred 4-5 days per week with a severity of
3-4 or 5-6 out of 10 and lasted 4-5 hours each occurrence.  Once the plaintiff started
physiotherapy, rehabilitation and home exercises, the frequency and intensity
of the headaches improved marginally;

b)    pain on both
sides and the back of his neck that started approximately two hours after the
First Accident.  For the first several months the pain was continuous with a
severity of 8 out of 10.  Thereafter to the present time, the pain occurs
approximately 4 to 5 times per week at a severity level of 5-6 out of 10 with
each occurrence lasting 5 to 6 hours;

c)     pain in
the area of his shoulder blades down to his mid-back, again continuously for
several months after the First Accident and thereafter 4-5 times per week at a
severity level of 5-6 out of 10 with each occurrence lasting 5 to 6 hours;

d)    lower back pain
which started two days after the First Accident.  For the first several months,
the pain was constant at a severity level of 9 out of 10.  Thereafter, its
severity decreased to 6-7 out of 10 after he began physiotherapy and home
exercises.  However, the pain increased to a severity of 9 out of 10 when the plaintiff
was working and sitting for long periods, which then required him to reduce his
work hours or to take time off from work altogether and rest; and

e)    sharp pain
radiating down the right leg.  For several months after the First Accident the
pain occurred 4-5 days per week at a severity level of 5-6 out of 10 and lasted
for 5-6 hours.  Since then the severity of the pain has fluctuated from between
5-6 to 7 out of 10, but the frequency and the duration have remained the same.

[22]        
The plaintiff saw his family physician, Dr. Verma, the day after
the First Accident.  He testified that, thereafter, he followed the treatment
regime recommended by Dr. Verma.  The plaintiff attended 24 physiotherapy
sessions between November 7, 2011 and January 31, 2012.  He commenced
massage therapy on November 17, 2011, and continued with numerous sessions
until January 7, 2014.

[23]        
MRIs of the plaintiff’s back were performed on January 22, 2012 and
June 24, 2015.  They revealed an “annular tear at the right posterolateral
position of the L5/S1 disc, with a slight associated disc bulge”.

[24]        
On March 27, 2012, the plaintiff was assessed by an orthopedic
surgeon, Dr. Weber, who recommended continued physical therapy.  From September 6,
2012 until November 10, 2012, the plaintiff attended 9 sessions with a
chiropractor for treatment primarily focused on his lower back.  On November 21,
2012, the plaintiff was assessed by a physiatrist, Dr. Hershler.  On December 15,
2012, the plaintiff was assessed by a neurosurgeon, Dr. Sahjpaul.

[25]        
The plaintiff testified that, throughout the period from November 7,
2011 until the present time, he performed the home exercises that were
recommended by his physiotherapist and massage therapist, which he did and
continues to do 2-3 times per day.  He also testified that he does stretching
exercises at home as well as while working when he is able.  He also has
relieved his pain symptoms by taking Advil, Tylenol and prescription Tylenol
3.

[26]        
The plaintiff testified that the pain he experienced and continues to
experience from his injuries related to the First Accident causes him to wake
up 2-3 times a night, 3-4 nights per week.

C.             
The Second Accident

[27]        
The plaintiff was not wearing a seatbelt at the time of the Second
Accident.  He testified that, during the Second Accident, he felt a “jolt” and
that each of the injuries he sustained as a result of the First Accident was
aggravated.  Leung testified but she did not provide any evidence regarding the
actual impact of the collision.  The repair cost for the damage to the Taxi
caused by the Second Accident was $584.13.  The Taxi continued to be drivable.

[28]        
The plaintiff was off work for approximately three days after the Second
Accident due to increased pain in his lower back, neck, upper back and right
leg.

[29]        
The plaintiff resumed his physiotherapy sessions after the Second
Accident at the recommendation of Dr. Verma for 9 sessions.  In February,
2014, Dr. Verma recommended that the plaintiff stop his massage therapy
sessions because they were not providing the plaintiff with much benefit.  He
recommended that the plaintiff attend yoga sessions instead, which the
plaintiff tried for three months from February 26 to May 25, 2014,
but to no avail.

[30]        
Commencing May 23, 2014 until October 2, 2014, on the
recommendation of Dr. Verma, the plaintiff attended 19 sessions of a
structured exercise program with a kinesiologist.  The plaintiff testified that
there was little improvement in his condition.

[31]        
The plaintiff attended follow-up assessments with Dr. Hershler and Dr. Sahjpaul
on November 20, 2014 and June 3, 2015 respectively.

D.             
Loss of Work Hours

[32]        
The plaintiff testified that, as a result of the First Accident, he was
off work from October 18, 2011 until December 9, 2011 when he returned
to work on a part time basis.  Thereafter, he worked 3-5 days per week between
3 and 9 hours per day, depending upon his level of pain, which he attempted to
manage with medication.  His work activities exacerbated his pain such that, on
occasion, he was unable to work for up to a week.

[33]        
The plaintiff juggled his work hours with his various medical and other
appointments.

[34]        
At the time of the Second Accident, the plaintiff was working 3 to 5
days per week, between 3 to 11 hours per shift.

[35]        
The plaintiff’s partner in the lease of the Taxi from January 2013
to September 2014, Mr. Kular, testified that, occasionally, the
plaintiff told him that he was in pain and that, if Mr. Kular wished, he
could work a portion of the plaintiff’s shift.  Mr. Kular did so but not
often.  When he did, he paid the plaintiff $80.  When he did not, the plaintiff
requested a replacement driver through Surdell’s dispatch system.

[36]        
Commencing January 1, 2013, the plaintiff reduced his lease
obligations on the Taxi from 100% to 50%.  He continues to drive the Taxi on
the day shift only, which is now 6 am to 6 pm.  His co-lessor of the Taxi drives
during the night shift. The plaintiff no longer has the option of working
longer shifts when there is no driver for the Taxi during the night shift.

[37]        
The plaintiff testified that the frequency and intensity of his headaches,
neck pain, back pain and leg pain increases with work and other activities but
decreases with physiotherapy, massage, home exercises, medication and rest.

[38]        
The plaintiff’s historical business income from his income tax returns
is as follows:

E.             
Day-to-Day Living

[39]        
The plaintiff testified that the First Accident has impacted his ability
to perform household chores.  Prior to the First Accident, the plaintiff
assisted with vacuuming, laundry and grocery shopping.  He testified that, as a
result of the First Accident, he is no longer able to perform these tasks
because they cause increased pain in his lower back.  His wife and his sister
perform them in his stead.

[40]        
Since the First Accident, the plaintiff and his family have moved from
rented accommodation to a house that they purchased.  The plaintiff testified
that, because of his First Accident-related pain, he is unable to cut the lawn
or wash the windows at the new house.  These chores are performed by his cousin
and, his wife/sister respectively.

[41]        
Prior to the First Accident, the plaintiff went to movie theatres
approximately twice per month, attended a gym approximately 3-4 times per week
and went to the Sikh Temple 2-3 times per month.  He testified that, as a
result of his First Accident-related pain, he is only able to tolerate sitting
in a movie theatre approximately 1-2 times per year and going to his temple
approximately once per month.

[42]        
The plaintiff  does not attend personal trainer sessions because he
cannot afford them.  He would do so if money was made available for that
purpose.

F.             
Medical Evidence

1.              
Dr. Kumid Verma

[43]        
Dr. Verma has been the plaintiff’s family physician since October 2006. 
He testified as a fact witness regarding his various clinical assessments of
the plaintiff before and after the First Accident.

[44]        
Dr. Verma confirmed that the plaintiff had a history of complaints
of low back pain as well as restless leg syndrome dating back to at least 2005,
for which he had been treated.

[45]        
Dr. Verma treated the plaintiff after the First Accident for pain
due to a mild soft tissue injury to his neck and lower back.  By early 2012,
the plaintiff had full range of movement in his neck and lower back and,
although the plaintiff complained of pain at the end points of the ranges of
motion and reported only 20-30% relief in his lower back pain, Dr. Verma
found no objective indications of continuing injury.  The plaintiff had no
difficulty walking, squatting, standing up or sitting down.  Those findings
stayed consistent during no less than 48 clinical assessments of the plaintiff
between February 7, 2012 and August 15, 2015, with the exception of June 2,
2015 when he assessed the plaintiff’s lower back range of movement as 80% of
normal.

[46]        
The plaintiff did not at any time complain to Dr. Verma of mid-back
pain.

[47]        
Dr. Verma stressed to the plaintiff the importance of yoga and
other exercises.

[48]        
Counsel for the defendants spent considerable time on cross-examination attempting
to elicit opinions from Dr. Verma without him having been qualified to
provide opinion evidence.  To the extent he gave opinion evidence, it is not
admissible.  The factual evidence provided by Dr. Verma was, however,
provided in a helpful, objective and straightforward manner.

2.              
Dr. Cecil Hershler

[49]        
Dr. Hershler is a physiatrist who was called by the plaintiff as an
expert witness.  He specializes in physical medicine and rehabilitation.  He
examined the plaintiff on November 21, 2012 and again in November 2014. 
He prepared two expert reports relating to his examinations, dated November 22,
2012 and November 26, 2014 respectively.  His expertise and expert reports
were admitted without debate or qualification.

[50]        
Based upon the plaintiff’s past medical history, his physical
examination of him as well as two MRI reports of the plaintiff dated January 22,
2012 and June 24, 2015, it was Dr. Hershler’s opinion on November 22,
2012 that the plaintiff suffered the following injuries at a result of the
First Accident:

a)    injury to the
disc at L5-S1 comprising an annular tear (tear in the lining surrounding the
disc) and a small right paracentral bulge.  Although the bulge is not impacting
on the nerve root, it likely increases in size when the plaintiff bends or sits
for long periods of time which causes him increased pain; and

b)    muscular
(myofascial) injury to the neck, causing headaches and neck pain.

[51]        
Dr. Hershler found during his follow up examination approximately
two years later that the plaintiff’s symptomology as determined during the
first consultation remained unchanged.  He was also of the opinion that the
Second Accident aggravated the plaintiff’s First Accident symptoms and probably
led to a prolongation of his pain.

[52]        
Dr. Hershler does not believe that the plaintiff’s symptoms are
age-related or degenerative in nature.  Rather, in his experience, an annular
tear such as that suffered by the plaintiff usually occurs after trauma. 
Although x-rays of the plaintiff’s L5 spine dated 2005 and 2007 suggest the
presence of spondylosis, no confirmatory CT scan was performed.  Indeed, the more
recent MRIs showed no signs of spondylosis.  Regardless, Dr. Hershler testified
that spondylosis is commonly found in the absence of trauma and that it is
highly unlikely to have led to the plaintiff’s spine instability and pain,
although he did concede on cross-examination that its presence would make the
plaintiff more vulnerable to spine instability after a trauma.

[53]        
Dr. Hershler acknowledged on cross-examination that the plaintiff
did not advise him of his pre-accident complaints of lower back pain and pain
radiating down his right leg, restless leg syndrome or sleep deprivation
issues.  However, Dr. Hershler read the pre-accident clinical records of
the plaintiff’s family physicians which referenced those complaints.  Because the
clinical records indicated there were long periods during which the plaintiff
was able to work without reports of pain, Dr. Hershler assumed that these issues
were sporadic and did not resemble the chronic symptoms he assessed.

[54]        
Dr. Hershler was cross-examined at length on mitigative measures
that could be taken to resolve the plaintiff’s pain symptoms.  In Dr. Hershler’s
opinion, pain that radiates down the plaintiff’s right leg, in and of itself, is
insufficient reason to perform surgery.  Moreover, he would not recommend the
use of non-steroidal anti-inflammatory medicines for chronic pain such as the
plaintiff’s as they can cause side effects.  Nor would he recommend the use of
benzodiazepines.

[55]        
Dr. Hershler agreed that an increase in the plaintiff’s weight can
increase the load on his damaged L5-S1 spine area.  He opined that management
of the plaintiff’s pain is crucial to optimizing his rehabilitation,
functioning and overall wellbeing.  He recommended that the plaintiff continue
with an active, consistent and regular rehabilitation program as well as an
intense period of core strengthening for his neck and lower back consisting of
weekly sessions with a physical trainer for six months and monthly for another
six months thereafter.  Dr. Hershler also recommended a topical
anti-inflammatory/muscle relaxant cream be applied at least twice per day
before and after work.

[56]        
Dr. Hershler recommends that the plaintiff sleep on his back with a
foam wedge to support bended knees.

[57]        
Dr. Hershler’s prognosis is that the plaintiff’s activities will
continue to be limited by pain for the foreseeable future.  He agreed on
cross-examination that an insert placed on a driver’s seat at the small of the
back might help relieve some of the plaintiff’s pain.

[58]        
Dr. Hershler was an impressive witness whose opinions were
expressed in an understandable, forthright, helpful and objective manner.

3.              
Dr. Ramesh Sahjpaul

[59]        
Dr. Sahjpaul is a neurosurgeon with outstanding credentials who was
called by the plaintiff as an expert witness.  He specializes in the diagnosis,
prognosis, treatment and management of muscular-skeletal injury.  He assessed
the plaintiff on December 15, 2012 and again on June 3, 2015.  The
sessions lasted approximately 1½ hours each.  He prepared two expert reports
relating to his examinations, dated December 15, 2012 and July 4,
2015 respectively.  Dr. Sahjpaul’s expertise and expert reports were admitted
without debate or qualification.

[60]        
Dr. Sahjpaul found that, neurologically, the plaintiff had full
strength and normal sensation.  However, he diagnosed the following based
largely on the plaintiff’s subjective complaints:

a)    the plaintiff
was suffering headaches, and myofascial pain in the back of his neck;

b)    myofascial low
back pain with a lessor component of pain arising from a small tear in the
L5-S1 disc lining and paracentral disc bulge.

[61]        
Dr. Sahjpaul assumed from the plaintiff’s historical clinic records
that he had no prior medical history of lumbar pain symptoms other than
intermittent episodes.  Since the plaintiff’s current subjective pain symptoms
did not appear until shortly after the First Accident, Dr. Sahjpaul opined
that the First Accident probably either caused the plaintiff’s pain symptoms or
rendered a pre-existing condition symptomatic.

[62]        
Given the length of time since the First Accident that the plaintiff has
been suffering back pain, Dr. Sahjpaul was not able to provide an opinion
regarding the plaintiff’s prognosis for recovery.  However, he opined that, the
longer the duration of time without improvement in his lower back pain, the
greater the probability that it will persist.  He also opined that there is a
small chance that the L5-S1 disc pathology may worsen in the future such that
surgery may be required.

[63]        
Dr. Sahjpaul found during his follow-up assessment on June 3,
2015 that the plaintiff had very mild limitation in his neck extension and
flexion and no indication of nerve pressure or compression in the neck or down
the plaintiff’s legs.  However, he did see indications confirmatory of the
plaintiff’s low back pain complaints.  Dr. Sahjpaul ordered an updated MRI
of the plaintiff’s back after his follow up assessment of him on June 3,
2015.  That MRI showed no change in the plaintiff’s pathology.  Dr. Sahjpaul
concluded that the plaintiff is not a candidate for surgery at this time because
there is no effective surgical treatment for annular tears in the disc.

[64]        
Dr. Sahjpaul confirmed that neither MRI scan of the plaintiff
showed any indication of spondylosis.

[65]        
Dr. Sahjpaul opined that the Second Accident aggravated his First
Accident-related injuries.

[66]        
Dr. Sahjpaul agreed on cross-examination that, generally,
maintaining core strength and proper posture can help resolve back pain.  He
also agreed that the plaintiff’s previous history of restless leg syndrome
could be a contributor to his sleeplessness.  However, in his opinion, the
plaintiff’s right leg pain is probably not related to the restless leg syndrome,
but is rather referred pain from his L5-S1 disc injury and myofascial
structures.

[67]        
Dr. Sahjpaul agreed that epidural injections might help relieve the
plaintiff’s pain and help his day-to-day functioning but cautioned that injections
would not cure the problem and would have no effect on the plaintiff’s
myofascial pain.  Similarly, topical anti-inflammatory/muscle relaxant creams
may provide some temporary pain relief.

[68]        
Dr. Sahjpaul also agreed that the provision of proper lumbar
support in the Taxi would likely be beneficial in relieving the plaintiff’s
back pain.

[69]        
Like Dr. Herschler, Dr. Sahjpaul was an impressive expert
witness who gave his evidence in an articulate, objective, forthright and helpful
manner.

4.              
Dr. Martin Grypma

[70]        
Dr. Grypma is an orthopaedic surgeon who was called by the
defendants as an expert witness.  He has not practiced clinically since 2010
but did so for approximately 19 years prior to that time.  Since 2010, Dr. Grypma
has limited his work to medical-legal opinions, the majority of which have been
for or on behalf of the Insurance Corporation of British Columbia (“ICBC”).  He
was qualified without debate to give opinion evidence on musculoskeletal
injuries and soft-tissue injuries.

[71]        
He examined the plaintiff on June 15, 2015 and wrote an expert
report dated the same day.  Upon examination, he found that the plaintiff had normal
range of movement in his neck and back, which in Dr. Grypma’s opinion,
were inconsistent with the injuries and severity of pain that the plaintiff was
reporting.  He also found that the areas of tenderness the plaintiff complained
of initially were not tender on later re-examination.

[72]        
Dr. Grypma assumed that the plaintiff had been wearing a seat belt
at the time of the First Accident.  He discounted the plaintiff’s advice to him
that his lower back pain began during the evening of the First Accident, and
instead, placed great weight on what turns out to have been a misreading of Dr. Verma’s
November 2, 2011 CL 19 Medical Report to ICBC, which he assumed documented
that the plaintiff’s lower back pain did not start until more than two weeks
after the First Accident.  Dr. Grypma opined that, if the plaintiff had
sustained an injury to his muscles, he would have experienced immediate pain. 
He opined that mid or lower back injuries are highly unlikely in rear-end
collisions if a person is properly restrained and that, if pain does not
develop immediately, there is little chance that an injury has occurred.

[73]        
On cross-examination, Dr. Grypma conceded that, if the plaintiff
had not been wearing a seat belt, it is possible that he could have injured his
lower back.

[74]        
Dr. Grypma relied in part upon the report of another orthopaedic
surgeon, Dr. Weber, dated March 27, 2012, which indicated the
plaintiff has a “multi-year complaint of back pain that was non-progressive”. 
However, Dr. Weber neither testified nor provided opinion evidence
regarding that report.

[75]        
During the examination, Dr. Grypma observed the plaintiff sitting
with poor posture.  He concluded, based upon that observation, that poor
posture was a contributor to the plaintiff’s pain complaints.

[76]        
On cross-examination, Dr. Grypma conceded that one of the chief
complaints the plaintiff reported to him was headaches, yet he expressed no
opinion regarding this complaint because it was outside his area of expertise.

[77]        
Dr. Grypma also conceded that he found tenderness in the plaintiff’s
lower back and limited range of movement in flexion and extension.

[78]        
During cross-examination, Dr. Grypma accepted that, since 2010, his
professional corporation has billed ICBC approximately $300,000 per year for
medical/legal opinions.

[79]        
In summary, it is Dr. Grypma’s opinion that, because the onset of
the plaintiff’s reported pain was not immediate and the plaintiff did not seek
immediate medical attention, it is “highly unlikely” that the plaintiff
sustained any injury.  Rather, in Dr. Grypma’s opinion, the plaintiff’s
ongoing neck and back symptoms are likely due to:

a)    deconditioning,
secondary to inactivity;

b)    functional
overlay (symptoms that are not compatible with a physical injury);

c)     the
plaintiff being overweight; and

d)    poor posture.

III.            
Analysis

A.             
Causation

[80]        
The “but for” test is the general test for factual causation: the
plaintiff must prove on a balance of probabilities that, but for the defendant’s
negligence, he would not have suffered his injury.  The defendant’s negligence
must have been a necessary cause of the injury: Athey v. Leonati, [1996]
3 S.C.R. 458 at paras. 13 – 19, 23 [Athey], as most recently summarized
and affirmed by the Supreme Court of Canada in Clements v. Clements,
2012 SCC 32 at paras. 8 – 10. See also Ediger v. Johnston, 2013 SCC 18
at paras. 28 – 29.

[81]        
The plaintiff need not prove that the defendant was the sole cause of
the injury.  It is sufficient that the defendant caused or contributed to the
symptoms: Athey at paras. 17 – 20; Hosak v. Hirst, 2003 BCCA 42
at paras. 70 – 72.

[82]        
Once factual causation is found, liability may still be limited in the
assessment of damages.  I note the well-established principle of tort law
that the defendant need not place the plaintiff in a better position than his
original position and should not be required to compensate the plaintiff for
damage he would have suffered in any event.  This is otherwise known as the
crumbling skull rule: Blackwater v. Plint, 2005 SCC 58 at paras.
78 – 81.

B.             
The Plaintiff’s Accident-Caused Injuries

[83]        
I am not persuaded by Dr. Grypma’s opinion that the plaintiff did
not suffer any injury as a result of the First Accident or the Second
Accident.

[84]        
His opinions regarding the plaintiff’s complaints of neck pain and mid
and lower back pain arising from each of the First Accident and the Second
Accident are based upon:

a)    his unyielding and
previously judicially rejected view that a muscle is not injured if pain is not
immediate;

b)    a lack of
objectivity during his examination of the plaintiff over 3 ½ years after the
First Accident;

c)     an
argumentative analysis of the plaintiff’s previous medical history and clinical
records;

d)   
the incorrect assumption that the plaintiff was wearing a seatbelt at
the time of the accident; and

e)   
in at least one case, the opinions of others who were not before the
court.  He states at page 9 of his June 15, 2015 report, for example,
that:

The clinical records also do not
support a disc injury from the motor vehicle accident.  Therefore, the MRI scan
findings are more likely due to wear as opposed to an injury.  A disc injury
would result in severe immediate pain.  Mr. Litt’s history as well as the
clinical records do not support a disc injury.

and

…Mr. Litt was seen by his family doctor on October 5,
2013, and there is no record of motor vehicle accident #2, and no record of mid
or lower back pain.  Therefore, an injury is highly unlikely.

[85]        
Dr. Grypma was not aware of the plaintiff’s evidence, which I accept,
that on October 5, 2013, Dr. Verma asked the plaintiff to return the
next week for a consultation regarding the Second Accident.

[86]        
Dr. Grypma’s June 15, 2015 report includes a section headed “Consistency
of Findings” in which he provides his opinion on the forces imparted on the
human body during a rear-end collision.  He wrote at page 6 as follows:

Mr. Litt states after motor
vehicle accident #1 his head went forward, hit the sun visor, and then his head
went backwards.  However, the exact opposite happens in a rear-end motor
vehicle accident.

and later at page 8:

Mid or lower back injuries in a
rear-end motor vehicle accident is highly unlikely as the mid and lower back
are well protected by the car seat and seat-belt if he was properly restrained.

[87]        
Also in the “Consistency of Findings” section at page 6, he argued the
case for the defendants:

Mr. Litt states that he has 8/10 neck pain with full
neck rotation range of motion.  However, he demonstrated full neck rotation
several times during conversation, showing no signs of discomfort.

Mr. Litt states that he has 8/10 neck pain with full
neck rotation.  However, seconds later with his neck in the neutral position,
he states that there was no neck pain.  I would be very surprised that the
neck pain could go from 8/10 to 0/10 in a matter of seconds.

Mr. Litt states that he currently had 9/10 lower back
pain.  However, he was not writhing in pain and he appeared very comfortable,
and he smiled during the examination.

Mr. Litt states that he currently has 9/10 lower back
pain.  However, his last painkiller was two days ago.  I would expect
someone who has 9/10 lower back pain would be taking regular painkillers and
that they would be taking something much stronger than just Tylenol or Advil.

Mr. Litt states that sitting
for greater than 30 minutes causes increased lower back pain.  However, he sat
comfortably for 45 minutes during conversation, showing no signs of discomfort.

[88]        
These comments are either outside the scope of Dr. Grypma’s
expertise, are an attempt to attack the plaintiff’s credibility or are in the
nature of argument.  They are not helpful and have no place in the report of a
medical expert who has certified that he is aware that his duty is to assist
the court and not be an advocate for any party.

[89]        
I found Dr. Grypma to be an advocate rather than an impartial,
objective expert.

[90]        
In assessing the evidence regarding whether and to what extent the
plaintiff was injured by the First Accident and the Second Accident, I accept
the opinion evidence of Drs. Hershler and Sahjpaul and reject that of Dr. Grypma.

[91]        
The plaintiff had a good recall of the relevant facts and gave his
evidence in a straightforward manner.  He readily acknowledged the frailties in
his case, and the attempts on cross-examination to undermine his credibility
were ineffective.

[92]        
In most respects, I found the plaintiff to be a credible witness. 
However, I have difficulty accepting his evidence in its entirety.  Dr. Verma’s
substantial clinical records make it clear that the plaintiff reported that his
lower back pain symptoms had improved over time, and by November 2012, those
symptoms were at most “occasional” and thereafter were “intermittent” although
persistent.  Dr. Verma confirmed these self-reports during his testimony. 
In contrast to what he had told Dr. Verma, the plaintiff testified that
his pain has essentially remained constant since the First Accident with
varying degrees of severity.

[93]        
Where there was a discrepancy between the plaintiff’s evidence of his
physical pain and the clinical records of Dr. Verma, I accept the
clinical records as being a more accurate record of the plaintiff’s complaints
at the time the records were made.  The plaintiff communicated with Dr. Verma
in his native language, Punjabi.  I find it highly doubtful that Dr. Verma
would have recorded, as he did, that the plaintiff reported his pain to be “mild”,
“occasional” and “intermittent” if the plaintiff had told him, as he claims he
did, that it was constant and debilitating.

[94]        
I find on the balance of probabilities that the plaintiff suffered a
mild to moderate soft tissue injury (myofascial) to his neck and shoulders as a
result of the First Accident.  In addition, the First Accident either caused
the plaintiff to suffer a small annular tear and paracentral disc bulge at the
L5-S1 level of his spine or render a pre-existing tear/buldge in that area to
become symptomatic.

[95]        
I also find that the injuries suffered by the plaintiff during the First
Accident were mildly exacerbated by the Second Accident, but that such mild
exacerbation resolved within one week.

C.             
Non-Pecuniary Damages

[96]        
In Stapley v. Hejslet, 2006 BCCA 34 (leave to appeal refused
[2006] S.C.C.A. No. 100), Madam Justice Kirkpatrick outlined the factors
to be considered in awarding non-pecuniary damages:

[46] The inexhaustive list of common
factors cited in Boyd that influence an award of non-pecuniary damages
includes:

(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;

I would add the following factors, although they may arguably
be subsumed in the above list:

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

(h) impairment of physical and
mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as a factor that should not,
generally speaking, penalize the plaintiff: Giang v. Clayton, [2005]
B.C.J. No. 163, 2005 BCCA 54).

[97]        
The plaintiff is 36 years of age.  Although the plaintiff suffered
headaches, lower back pain and restless leg syndrome prior to the First
Accident, I accept his evidence that his day-to-day functioning was
generally unimpaired physically until the First Accident, with the exception of
sleep issues caused by his restless leg syndrome.  During the 5 month period
immediately preceding the First Accident, the plaintiff was working between 72
to 84 hours per week without physical limitations.

[98]        
While I accept that the plaintiff suffered headaches, neck pain,
shoulder/mid-back pain, lower back pain and leg pain as a result of the First
Accident, I do not accept his evidence that his pain in these areas was
and continues to be of the frequency, severity and duration that he suggests.  His
description of the month-by-month, year-by-year frequency, severity and
duration of the various categories of pain he says he suffered since the First
Accident, did not change.  It defies credulity that such would be the case. 
Moreover, it is contrary to what he told Dr. Verma.  It is my view, and
I so find, that his evidence in this regard was embellished and exaggerated.

[99]        
No basis was provided for the pain severity numbers used by the
plaintiff.  There was no evidence that the plaintiff has any appreciation for
pain at a level of 10 out of 10.  He did not say, for example, whether he
understood that level 10 represented the worst pain imaginable for a human being. 
Moreover, different people have different thresholds for pain that they
subjectively perceive.  A severity of 8 out of 10 for a frail person may be 2
out of 10 for a stoic person.  Without any context within which to assess where
the plaintiff resides on a pain tolerance scale, the plaintiff’s use of a scale
of 0 to 10 is meaningless.  Indeed, it appeared to me that the plaintiff pulled
the pain severity numbers he used “out of the air”.

[100]     I agree
with counsel for the defendants that the plaintiff had a tendency during his
evidence to minimize the severity of his pre-accident medical history of low
back pain, headaches and restless leg syndrome and make the most of the
severity of his post-accident symptoms.  While the plaintiff insisted that he
managed his pain with pain medication, both prescription (Tylenol 3) and
over-the-counter (Tylenol and Advil), the documentation indicates that he was
prescribed only 120 Tylenol 3 pills since the First Accident and that his
purchases of over-the-counter Tylenol and Advil were, at best, modest and
sporadic.

[101]     I find
that the frequency and intensity of the plaintiff’s pain symptoms increased
with work and other physical activities and decreased with physiotherapy,
massage, home exercises, medication and rest.  However, I find that that
all of his pain symptoms gradually improved over time and became substantially
less limiting or debilitating by March 2012.  Indeed, the plaintiff’s Taxi
Trip Sheet Summaries, which were submitted as evidence at trial as Exhibit “8”,
clearly indicate that the plaintiff was working most days, albeit less than his
usual number of hours per day.  I find that from and after March 2012,
the plaintiff’s pain symptoms continued to persist but intermittently flare up
with activity or long periods of sitting.

[102]     Dr. Verma
confirmed that, on August 15, 2015, during the plaintiff’s most recent
consultation with him, his complaints were of intermittent pain only and that
the plaintiff appeared to have full range of movement.

[103]     I find
further that, while the plaintiff’s sleeplessness for several weeks after the
First Accident was contributed to by his First Accident-related injuries, his
sleeplessness thereafter is primarily caused by his pre-existing restless leg
syndrome.

[104]     There is
no evidence that the plaintiff has suffered emotionally or that his marital or
social relationships have been impaired as a result of his injuries.

[105]     Any
difference between the foregoing and the opinions of Drs. Herschler and
Sahjpaul is due to my findings of fact that differ from the facts upon which
their respective opinions were based.  Primary among these differences is my
finding that the plaintiff has exaggerated his pain symptoms.

[106]     The
plaintiff submits that an award of $90,000 for non-pecuniary damages is
appropriate in this case.  He relies on the following decisions:

a)   
Beagle v. Cornelson, 2012 BCSC 1934 [Beagle] ($90,000);

b)   
Bulpitt v. Muirhead, 2014 BCSC 678 [Bulpitt] ($85,000);

c)    
Schnare v. Roberts, 2009 BCSC 397 [Schnare] ($85,000);

d)   
Majer v. Beaudry et al., 2002 BCSC 746 [Majer] ($95,000)
and

e)    MacKenzie v.
Rogalasky, 2011 BCSC 54 [MacKenzie] ($100,000).

[107]     In Beagle,
the plaintiff was a 48-year-old cabinet installer who suffered intermittent
neck pain and chronic, significant low back pain as a result of a motor vehicle
accident.  The accepted medical evidence was that the plaintiff’s symptoms
would persist for the long term and limit his functioning indefinitely.

[108]     In Bulpitt,
the plaintiff was a 46-year-old firefighter who had no prior history of neck
pain or headaches.  He began to suffer from both after a rear-end collision.  Initially
the pain was intense and unrelenting such that he was unable to work.  By the
time of the trial over five years later, it had eased such that it allowed him
to function, albeit with pain.  His tolerance for sitting, lifting, climbing
and repetitive arm movements was limited.  The court found the plaintiff to be
a stoic individual who tended to minimize his complaints rather than to
exaggerate them.

[109]     In Schnare,
a 32-year-old teacher suffered ongoing pain symptoms to her neck, upper, mid
and lower back, including in and around her sacroiliac region.  She also
suffered insomnia and fatigue as a result of the accident.  The pain limited
her mobility and significantly restricted the quality of her activities of
daily life.

[110]     In Majer,
the 44-year-old plaintiff was injured in a motorcycle accident.  His major
injuries included soft tissue injury to his low back, hip and buttocks along
with an aggravation of an L5 disc lesion causing L5 nerve irritation.  The
court found that the plaintiff was a stoic chef who was attempting to live with
his injuries and continue on with his life as best as possible and that the
accident had cost the plaintiff the ability to work at an occupation he truly
derived a great deal of pleasure and satisfaction from.  The court also found
that the plaintiff’s recreational activities and leisure lifestyle were
adversely affected by his accident-related injuries.

[111]     In MacKenzie,
a 41-year-old plaintiff suffered moderate soft tissue injuries to the neck,
shoulder and primarily low back as a result of a motor vehicle accident in 2005.
The injuries forced him to discontinue work as a chef and move into a less
physically taxing occupation.

[112]     The
defendants submit that an award in the range of $40,000 to $70,000 is
appropriate in this case, relying on the following decisions:

a)    Zajaczkowski
v. Grauer, 2014 BCSC 711 [Zajaczkowski] ($40,000);

b)    Perry v.
Ismail, 2012 BCSC 123 [Perry] ($42,500);

c)     Kasic
v. Leyh, 2009 BCSC 649 [Kasic] ($70,000).

[113]     In Zajaczkowski,
the plaintiff was a building contractor who was involved in a rear-end accident
causing in the range of $1,500 to $2,000 in damage to his truck.  He complained
of persistent lower back pain.  The court found that while the pain was not as
debilitating as the plaintiff claimed, it persisted and aggravated his life.

[114]     In Perry,
the plaintiff truck driver suffered soft tissue injuries to his neck, back,
shoulder, lower back, knees, and intermittent headaches.  At the time of trial,
all but his lower back pain had recovered.  The trial judge accepted that the
lower back injury would continue to cause pain and discomfort.  The plaintiff
remained able to work as a truck driver despite his injuries.

[115]    
In Kasic, the court found
that the plaintiff sustained grade II soft tissue injuries to the cervical and thoracolumbar
spine, as well as possible strain/sprain to the left sacroiliac joint.  His
wife, a passenger in the vehicle at the time, suffered a cracked pelvis and two fractured ribs. The plaintiff’s prognosis at the time of trial was
for “continuous and unrelenting back pain”. 

[116]     After
having considered the plaintiff’s age and all of the foregoing findings of fact
and case law, as well as the plaintiff’s ability to function, and the discomfort
he is likely to experience as a result of his injuries in the future, I find
that an appropriate award for non-pecuniary damages is $60,000.

D.             
Past Wage Loss/Loss of Earning Capacity

[117]     When
determining a plaintiff’s past loss of income, the court must be mindful that the
relevant loss is not the income itself but rather the value of the loss of
earning capacity.  The court must assess the value of the work that the injured
plaintiff would have performed but was unable to perform because of the injury:
Rowe v. Bobell Express Ltd., 2005 BCCA 141 at paras. 21 and 30.

[118]     I find
that, had the plaintiff not been injured in the First Accident, he would likely
have worked to his full capacity of 11 to 12 hours per day, likely 5 to 6 days
per week, with occasional additional hours.  Any physical issues he had had in
the past were either fully resolved or were under control and well managed.

[119]     In my
view, on the evidence before me, the best indicator of the value of the work
that the plaintiff would have performed but for the First Accident, is his work
as a taxi driver during 2011, with adjustments made for his absence from work
due to an extended trip to India from January 15 to April 26, his
assisting his mother’s integration to Canada from April 26 until May 25,
and his First Accident related injuries from October 18, 2011 to December 9,
2011.  I decline to consider his previous years as a taxi driver because
the plaintiff’s work schedule was interrupted by several other extended trips
to India as well as by the birth of his children.

[120]     In 2011, the
plaintiff worked 26 days during each of June, July and August and 28
days during September.  He also worked 16 out of the 18 days in October prior
to the First Accident.  For the purpose of my assessment, I find that, but
for the First Accident, it is reasonable to conclude that the plaintiff would
likely have worked, on average, approximately 24 days per month.

[121]     The
plaintiff’s net income in 2011 was $20,530.  According to his Taxi Trip Sheet
Summaries (Exhibit “8”), that income was earned when the plaintiff worked 137
days from January 1 to October 18 and additional days between December 9
and 31, 2011.  The trip sheets for those additional work days in December could
not be located.  I estimate that, during December 2011, the plaintiff
likely worked an equivalent of 10 full days.

[122]    
Based upon the foregoing, I find that a reasonable estimate of the
plaintiff’s pre-accident monthly net income is:

[$20,530÷147 days (i.e. $140 per day)] x
24 days per month = $3,352 per month.

This figure is very similar to, albeit slightly higher
than, that proposed by the plaintiff using an entirely different approach,
which satisfies me that the plaintiff’s approach is reasonable.  I will
use the plaintiff’s calculations for the purpose of my assessment which is
based upon a net annual income of $39,935.

[123]    
I find that, as a result of the First Accident, the plaintiff was unable
to work at all from October 19 to December 8, 2011.  However, the
evidence is that he was paid $80 per day by a replacement driver when he was
unable to drive his normal shift.  I accept the defendants’ calculation
that his income during this period was:

$80 per day x 6
days per week x 8 weeks = $3,840.

[124]     The
plaintiff’s ability to work after he returned to driving the Taxi on December 9,
2011 was limited to 4-6 hours per shift, 5-6 days per week, with the exception
of the period from September 29 to October 1, 2013 when he was unable
to work for three days as a result of the Second Accident.  I accept that
the plaintiff worked as much as his pain permitted him to.  Indeed, it was
clear that the plaintiff was motivated to work as much as possible in order to
meet his household financial obligations.

[125]     I accept
the plaintiff’s evidence that his reduced hours of work were caused by the
First Accident and were contributed to in small part by the Second Accident.

[126]     I do not
accept the submissions of the defendants’ counsel to the effect that, if the
plaintiff was having difficulty driving the Taxi for his usual shift, he should
have pursued other employment, for example as a security guard.  No evidence
was led regarding what prospects for employment there were in that or any other
field, let alone what income the plaintiff would have been able to earn.  It is
the defendant who has the onus of demonstrating that the plaintiff failed to
mitigate his loss.

[127]     I assess
the plaintiff’s past loss of earning capacity as follows:

[128]     Rounding
off, I assess the plaintiff’s gross past loss of earning capacity at $130,000,
subject to the applicable statutory deductions.

E.             
Future Loss of Income and Earning Capacity

[129]     An award
for loss of earning capacity recognizes that a plaintiff’s capacity to earn
income in the future is an asset that has been taken away from him by the
defendant.  The plaintiff must demonstrate both an impairment of his earning
capacity and a real and substantial possibility that the impairment will result
in a pecuniary loss.  The standard of proof is a simple probability, not the
balance of probabilities: Bulpitt at para. 110.

[130]     Once that
threshold is met, the plaintiff may prove the amount of loss by using either
the earnings approach, when the loss can be readily measured, or the capital
asset approach, when the loss is not easily measurable: Perren v. Lalari,
2010 BCCA 140 at para. 32.

[131]     I find
that there is a real and substantial possibility that the plaintiff will, on
occasion, be unable to work his full shift as a taxi driver due to his
accident-caused injuries flaring up.  However, I am not convinced that
such flare-ups will continue until his planned retirement at the age of 65.  I find
that, with a proper regime of fitness and conditioning over the course of the
next year, the plaintiff will be able to eliminate the flare-ups and be fully
functional once again.

[132]     Plaintiff’s
counsel submits that the earnings approach should be used because the loss is
measurable at approximately $15,000 per year.  I disagree.  It is pure
speculation to predict that the plaintiff will continue to suffer such a
measurable loss in the future.

[133]     In my
view, the capital asset approach is more appropriate in this case.  There is no
question that the plaintiff lost some ability to take full advantage of his
taxi shifts and has been rendered less capable of earning his full income from
that business.  However, there is no evidence that he has become less
marketable or attractive as an employee to potential employers.  Nor is there
evidence that the plaintiff has lost the ability to take advantage of job
opportunities that might otherwise have been open to him.

[134]     Taking
into account all of the evidence, including the opinions of Drs. Herschler and
Sahjpaul, I find that a fair and reasonable award for loss of future
earning capacity is $75,000.

F.             
Past and Future Loss of Housekeeping Capacity

[135]     Where a plaintiff’s ability to perform household tasks is diminished
by a defendant’s negligence, he ought to be compensated for the loss of that
capacity: Tombe v. Stefulj, 2002 BCSC 154 at para. 78.

[136]     I am not
satisfied that the plaintiff has demonstrated on the balance of probabilities
that he has lost any capacity to perform laundry, vacuuming or lawn mowing
tasks, nor has he satisfied me that there is a real and substantial possibility
that he will lose such capacity in the future.  I find that the plaintiff
has the capacity to perform these tasks albeit with pain.

[137]     I decline
to make an award under this heading.

G.            
Cost of Future Care

[138]     The test
to be applied when determining if an award should be made for the cost of
future care is whether there is a medical justification for the claim and
whether the claim is reasonable:  Rizzolo v. Brett, 2010 BCCA 398 at para. 74.

[139]     I accept
the expert medical evidence that the plaintiff has become deconditioned.  I also
accept Dr. Herschler’s evidence that a regular rehabilitation program with
a physical trainer will be beneficial to the plaintiff.  The program should
include an intense period of core strengthening for the plaintiff’s neck and
lower back consisting of weekly sessions with a physical trainer for six months
(24 sessions) and monthly for another six months thereafter (6 sessions).

[140]     The
evidence before me is that the cost of each session is $100.

[141]     I award
the plaintiff $3,000 for 30 physical trainer sessions.

[142]     The
plaintiff testified that he purchases 90 Tylenol 3 tablets at a time, which
last for approximately 1½ to 2 months.  However, the receipts put in evidence
by the plaintiff do not support such an amount.  While I am satisfied on
the evidence that there is a real and substantial possibility that the
plaintiff will continue to incur expense for pain medication, I am not
persuaded that it will continue for more than one year into the future,
assuming the plaintiff complies with his physical training program, which he
will be obliged to do.

[143]     In my
view, a modest award only for future pain medication is justified.  I award
the plaintiff $500.

[144]     The
plaintiff is entitled to an award of $3,500 under this head.

H.             
Special Damages

[145]     The
defendants have admitted that the plaintiff has incurred special damages in the
amount of $7,673.71.

[146]     In
addition, the plaintiff claims a global amount of $1,000 in respect of the cost
associated with his having to travel to his various medical, physiotherapy and
rehabilitation appointments, as well as expenses for pain medications in
respect of which he did not retain receipts.  He was not cross-examined on this
claim.  The plaintiff has satisfied me that an award of $1,000 is reasonable in
respect of these travel and other costs.

[147]     The
plaintiff is entitled to an award for special damages in the amount of
$8,673.71.

I.                
Division of Fault

[148]     No
submissions were made by the defendants regarding the plaintiff being
contributorily negligent for his injuries because he was not wearing a seatbelt
at the time of the accidents.  Accordingly, I make no finding in that
regard.

[149]     Despite
the submissions of counsel to the contrary, in my view, the Second
Accident-related injuries are capable of being separated out and having their
damages assessed independently from those suffered as a result of the First
Accident.  In other words, the injuries from the Second Accident are divisible
from those suffered in the First Accident: Bradley v. Groves, 2010 BCCA
361 at paras. 20 and 33.  It is clear on the evidence that the primary cause of
the plaintiff’s injuries was the First Accident.  The Second Accident resulted
in his injuries being aggravated for a very short period of time.

[150]     I agree
with the submission of counsel for the defendants that an appropriate
allocation of liability for the plaintiff’s damages as between the two
accidents is 95% to the First Accident and 5% to the Second Accident.

IV.           
Conclusion

[151]     The
plaintiff is entitled to a total judgment in respect of both the First Accident
and the Second Accident in the following amounts:

[152]     The
plaintiff is entitled to his costs at Scale B, subject to any additional
submissions the parties wish to make regarding costs.

[153]     Judgment
will be entered against the defendants in Action No. M136517 for 95% of
the total judgment.

[154]     Judgment
will be entered against the defendants in Action No. M143364 for 5% of the
total judgment.

“G.C. Weatherill J.”