IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151210

Docket: M124091

Registry:
Vancouver

Between:

Satvinder
Singh Bhandal

Plaintiff

And

Daniel
Kane Charlebois

Defendant

Before:
The Honourable Madam Justice Warren

Reasons for Judgment

Overview

[1]           
Satvinder Singh Bhandal claims damages for personal injuries he suffered
in a car accident on April 29, 2011.  Mr. Bhandal was in his vehicle in
the left northbound lane on No. 3 Road in Richmond just south of the
intersection with Williams Road, waiting or starting to turn left into a mall
parking lot, when he was rear-ended by a vehicle driven by the defendant,
Daniel Kane Charlebois.

[2]           
There were some differences in the accounts of Mr. Bhandal and the
defendant with respect to what happened immediately after the accident.  However,
nothing turns on those differences and I attributed them to the stress both
drivers must have experienced in the immediate aftermath of the collision.  What
is important is that both drivers testified that the defendant’s vehicle hit Mr. Bhandal’s
vehicle from behind while Mr. Bhandal was stopped waiting to turn left, or
just commencing his turn, into the parking lot.  In these circumstances the
onus is on the defendant to show that the collision was not caused by his
fault: Cue v. Breitkreuz, 2010 BCSC 617 at para. 15; and Stanikzai
v. Bola, 2012 BCSC 846 at para. 7.  Although liability was not
formally admitted, in final submissions counsel for the defendant conceded that
the defendant had not discharged this onus.  In the result, I find the
defendant liable.

[3]           
Mr. Bhandal claims that he suffered soft tissue injuries to his
neck, back, and shoulders in the accident that caused pain in these areas, as well
as jaw pain and headaches.  The soft tissue injuries, frontal headaches and
pain in the back, shoulders and jaw resolved within about a year.  However, Mr. Bhandal
says he has been left with debilitating and chronic pain in the occipital area
of his head and in his upper neck, which has exacerbated a pre-existing mood
disorder.  He says his ongoing symptoms are almost completely disabling and
have negatively affected every aspect of his life.

[4]           
Mr. Bhandal was 35 years old at the time of the accident.  In
September 2009, about 20 months prior to the accident, he obtained a job with
Crown Packaging as a labourer.  About eight months prior to the accident he
obtained a realtor’s licence.  He testified that his plan was to continue to
work at Crown until retirement, and to sell real estate on the side.  He has
not returned to work at Crown since the accident and he has not pursued his
real estate career.  He says he has been rendered permanently, competitively
unemployable.

[5]           
Mr. Bhandal seeks damages for pain and suffering, loss of past and
future income earning capacity, loss of housekeeping capacity, cost of future
care, special damages and costs.

[6]           
The defendant disputes the nature and extent of the injuries Mr. Bhandal
claims to have suffered, and the effects that he says those injuries have had
on his life.  The defendant asserts that Mr. Bhandal’s claim depends on
the credibility of his subjective reports of pain and that he is not credible. 
The defendant also challenges the credibility of the lay witnesses who
testified in support of Mr. Bhandal.  The defendant says that Mr. Bhandal
failed to mitigate by failing to attempt to return to some form of employment,
not consulting a chronic pain specialist, and resisting recommended medication. 
The defendant disputes the quantum of damages Mr. Bhandal seeks under all
heads except special damages, which are agreed at $7,033.27.

[7]           
The critical questions are what injuries were actually caused to Mr. Bhandal
by the accident and what effect those injuries have had on his life.  As
submitted by the defendant, the answers depend very significantly on the
credibility and reliability of the evidence led by Mr. Bhandal and, in
particular, on his own credibility.

[8]           
In addition to his own testimony, Mr. Bhandal relied upon the
expert evidence of his family doctor, Dr. Cheryl Nagle; his treating
neurologist, Dr. Gordon Mackie; and a psychiatrist, Dr. Lee Rasmusen,
who conducted an independent medical examination of Mr. Bhandal at the
request of his counsel.  He also called his treating chiropractor, Dr. Leslie
Taylor-Hughes.  In addition, he relied on the expert evidence of Mr. Derek
Nordin, a psychologist and certified vocational evaluator, who conducted a
vocational assessment of Mr. Bhandal, and the expert evidence of Curtis
Peever, an economist who provided estimates of earnings from employment and
estimates of the values of non-wage benefits.  Finally, he called three lay
witnesses:  his cousin’s husband Mr. Bhupinder Sall; his cousin Mr. Guvinder
Aujla; and his brother Mr. Gurinder Bhandal.

[9]           
The defendant testified and also relied on the expert evidence of Dr. George
Medvedev, a neurologist who conducted an independent medical examination of Mr. Bhandal
at the request of his counsel, and a lay witness, Mr. Gordon Speers, who
is a supervisor at Crown.

Background

Before the Accident

[10]       
Mr. Bhandal was born in 1975 in the United Kingdom, in a suburb of
East London.  He has two older brothers, Gurinder and Jagvinder.  His father
worked on a Ford assembly line and at a bakery.  His mother worked as a
seamstress.

[11]       
Mr. Bhandal’s passion, growing up, was football (the sport known as
soccer in North America).  He played football and was a big supporter of the
Liverpool Football Club.  He played cricket as well, and participated in
martial arts and kickboxing.

[12]       
Mr. Bhandal graduated from high school, attended a community
college, and then attended university in England.  He graduated with a bachelor
of arts in combined studies in 1997.  His focus at university was on marketing
and accounting.

[13]       
After graduating from university, Mr. Bhandal worked for about
three years in a marketing position with a firm of chartered accountants.  He
left that job in 2000, completed a web marketing course, and then obtained
employment with an online recruitment start-up, where he worked in marketing
and advertising until 2004.

[14]       
Mr. Bhandal immigrated to Canada with his parents in 2004.  They
settled in Richmond where many members of his mother’s extended family have
resided for decades.  In 2005, Mr. Bhandal’s father purchased a property
on Lindsay Road in Richmond and, over the subsequent six months, a new home was
built there.  Mr. Bhandal moved into that home with his parents.  Eventually,
his brother, Gurinder, and Gurinder’s wife and children also moved in.

[15]       
Mr. Bhandal was unemployed for about four years after moving to
Canada.  He did not even seek employment until about 2007.  He testified that
he then tried to get back into marketing but the job market was competitive,
his English qualifications were different from the qualifications of those he
was competing with for jobs, and he was not successful.  He spent his time
playing soccer, socializing, participating in martial arts, mountain biking,
and overseeing the construction of his parents’ home on Lindsay Road.

[16]       
In 2008, Mr. Bhandal got his first job in Canada.  It was a
labouring job at a warehouse.  He did not like the job and he quit after six
months.  Later in 2008, he got a job with an online marketing company in a
marketing position.  He was let go after two months, in January 2009.

[17]       
In September 2009, Mr. Bhandal secured a job as a labourer with
Crown Packaging.  Crown manufactures products such as cardboard boxes from raw
paper.  Several of Mr. Bhandal’s relatives work at Crown Packaging and one
of them, Mr. Bhupinder Sall, helped Mr. Bhandal get a job there.

[18]       
Mr. Bhandal worked in a few positions at Crown and eventually he secured
the job of unitizer operator.  The unitizer operator is responsible for
operating a machine that packages the products made in the mill.  The duties of
the unitizer operator include shrouding and wrapping products in preparation
for delivery to customers.  This is a fairly physical job that requires
repetitive squatting, twisting and lifting of plywood caps that must be placed
on top of certain products.  There was some dispute about just how physical the
job is, but there is no doubt that it involves some degree of physicality and
demands that the operator remain attentive and alert.  There are conveyor belts
on the unitizer machine and the operator must walk on the metal rollers of the
conveyor belts from time to time, which requires balance and coordination.  Mr. Bhandal
said that prior to the accident he performed these job duties without any problem.

[19]       
Mr. Bhandal’s job with Crown was a union position with benefits and
a pension plan.  It was the best paying and most steady job he had secured
since moving to Canada.  He testified he planned to work there until retirement
at age 60 to 65.

[20]       
In the summer of 2010 a property on No. 1 Road in Richmond was
purchased by Mr. Bhandal’s brother, Gurinder, for a family project.  The
plan was to subdivide the property and build two houses on it, one for Mr. Bhandal
and his parents and the other for Gurinder and his immediate family.

[21]       
In August 2010, Mr. Bhandal completed a real estate course through
UBC and obtained a realtor’s licence.  He said that because he worked shifts at
Crown, he thought he would be able to maintain his job at Crown and develop a
real estate business on the side.  He said he knows several Crown employees who
are able to operate side businesses by taking advantage of the flexibility of
the shifts at Crown.  He also said there was a possibility that Crown would be
moving to a schedule of three, 12-hour shifts per week, which he thought would
make a side business even more viable.

[22]       
In September 2010, Mr. Bhandal became an independent realtor with Macdonald
Realty in Richmond.  However, in the roughly seven months between then and the
accident, his only listing was his father’s house on Lindsay Road.  He listed
that house for sale in January 2011 and it sold, after the accident, in August
2011.  He also acted as purchasing realtor on the purchase of his own house in the
Steveston area of Richmond.  He recorded commissions of approximately $30,000 from
those two transactions.

[23]       
Mr. Bhandal is single and has no children.  At the time of the
accident he was living with his parents, Gurinder, and Gurinder’s wife and
children, in the Lindsay Road home.  He was responsible for outdoor maintenance
such as cutting the grass and seasonal cleaning of the gutters.  He was working
full time at Crown.  He was active and outgoing.  Soccer remained his passion. 
He played regularly and watched professional matches at home, and with friends
and family members at the pub.  He enjoyed kickboxing, which he did at home
with a bag hung in his garage.  He had a bicycle that he rode often.  He
enjoyed socializing with his large extended family.

The Accident

[24]       
The accident occurred on April 29, 2011 at about 10:30 p.m.  Mr. Bhandal
had finished his afternoon shift at Crown.  He planned to stop at a cold beer
and wine store on his way home.  He drove north on No. 3 Road, in the
right lane.  As he approached Williams Road, he entered the left northbound
lane and slowed to a stop, waiting, with his left turn indicator on and his wheels
slightly turned to the left, for the southbound traffic to clear so that he
could turn left into the mall parking lot.  He was then struck by the defendant’s
vehicle from the rear.  The defendant testified that he looked down at the
clock in his car and then, when he looked up again, it was too late and he
struck Mr. Bhandal’s vehicle.

[25]       
The impact of the collision was significant.  Mr. Bhandal testified
that he heard glass shattering and he recalls his upper body moving backward
and forward and his head hitting the headrest one or two times.  He testified
that he felt immediate pain in his neck.  The damage to both vehicles was
considerable.  The impact caused nearly $11,000 in damage to the defendant’s
vehicle and it was rendered a total loss.  Mr. Bhandal’s vehicle sustained
approximately $5,500 in damage.

[26]       
Notwithstanding the damage to his vehicle, Mr. Bhandal was able to
drive it home.  He testified that he started to feel pain in his back,
shoulders and jaw.  He also had a frontal headache.  He left a message at Crown
saying he would not be coming in to work the following morning and would update
them after seeing his doctor.  He testified that he had a couple of shots of
whiskey to calm his nerves and went to bed.

After the Accident

[27]       
When Mr. Bhandal woke up the morning after the accident he was very
sore in the back, chest, jaw and neck areas.  He asked his father to drive him
to Richmond Hospital because he was worried he might have fractured his neck.  X-rays
were taken and confirmed there was no fracture.

[28]       
On May 2, 2011, Mr. Bhandal saw his family physician, Dr. Cheryl
Nagle.  He complained of pain across his neck in between his shoulder blades,
frontal headaches and bilateral jaw pain.  Dr. Nagle noted that he had
full range of motion in his neck with pain on the extremes of motion.  There
was no palpable spasm in his neck; however, there was pain on palpation.  She
diagnosed soft tissue injuries and advised him to apply ice and attend
physiotherapy.  She prescribed an anti-inflammatory medication, advised him to
remain off work, and to be reassessed by her in one week.

[29]       
Mr. Bhandal testified that in the week following the accident he
felt sore and stiff.  His shoulders and back were swollen and he continued to
have frontal headaches.  He went to physiotherapy but he testified that he was
in too much pain to do anything but ultrasound.  He went back to see Dr. Nagle
about a week after the accident complaining of worsened pain and frontal
headaches.  She told him to stay off work for another week.  He applied for and
started to receive short-term disability benefits.

[30]       
Later in May 2011, Dr. Nagle referred Mr. Bhandal to Dr. Quirke,
a physician with expertise in musculoskeletal disorders.  She also recommended
that Mr. Bhandal remain off work.

[31]       
Mr. Bhandal was treated by Dr. Quirke between June and
November 2011.  He referred Mr. Bhandal to Dr. Leslie Taylor-Hughes,
a chiropractor.  He also referred Mr. Bhandal to a physiotherapist for IMS
treatments.  At the end of June he recommended that Mr. Bhandal remain off
work for a further four weeks.  At the end of July he recommended that Mr. Bhandal
remain off work until at least September 2011.

[32]       
Dr. Taylor Hughes provided 33 treatment sessions to Mr. Bhandal,
over four months between June and October 2011.  Her treatment was funded by an
ICBC program and she provided reports to ICBC on her findings, treatment plan,
prognosis and progress.  She also reported to Dr. Quirke.

[33]       
In her initial report to ICBC dated June 24, 2011, Dr. Taylor-Hughes
noted that Mr. Bhandal reported tenderness in the cervical spine and the
right thoracic spine.  She noted limitations in his range of motion in the
cervical spine, particularly on extension.  She diagnosed a Grade II Whiplash
and cervicogenic headache, which she explained, at trial, was a headache
originating in the neck.  She reported that Mr. Bhandal could not manage
physical labour but that he could work at sedentary tasks.

[34]       
Three weeks after commencing treatment, Dr. Taylor-Hughes noted that
some of the spasm and swelling had improved but the headaches persisted.  Nevertheless,
at the time, she thought Mr. Bhandal’s prognosis was good.  By September 2011,
she reduced her prognosis to "fair" because of the persistence of the
headaches.  In October 2011, she told Dr. Quirke that Mr. Bhandal had
complained of severe headaches intermittently and wondered whether further investigation
was warranted.  By November 2011, Dr. Taylor-Hughes concluded that the
headaches were not responding to her treatment.  She advised ICBC, in her
discharge report, that her prognosis was guarded because of the unrelenting
headaches.

[35]       
As already noted, in August 2011, the Lindsay Road home sold.  Mr. Bhandal
testified that he then purchased a house in Steveston and he and his parents
moved there.

[36]       
ICBC asked Mr. Bhandal to attend Karp Rehabilitation.  He attended
treatments there from October 2011 to March 2012, working with Wilson, a physiotherapist,
on developing a program to get back to work.

[37]       
In November 2011, Dr. Quirke referred Mr. Bhandal for an MRI. 
No abnormalities were noted.  Dr. Quirke told Mr. Bhandal there was
nothing more he could do for him.  Also in November 2011, Dr. Nagle
diagnosed Mr. Bhandal as suffering from chronic occipital pain secondary
to the accident.  She prescribed medication for pain and to help him sleep.

[38]       
In December 2011, Dr. Nagle referred Mr. Bhandal to Dr. Gordon
Mackie, a neurologist.  She also recommended that Mr. Bhandal try
returning to work in January 2012 on a graduated basis and on light duties.  At
trial, she said she always recommends that injured patients try returning to
work in order to re-establish some normalcy in their lives.  She said that she
did not know whether he would be able to work but she wanted him to try.

[39]       
Dr. Mackie first saw Mr. Bhandal on December 20, 2011, nearly
eight months after the accident.  He noted that Mr. Bhandal "presented
with persisting pain in the back of his head since [the] motor vehicle accident"
that "tended to be located in the occipital areas bilaterally and spread
into his neck and scalp".  Dr. Mackie conducted a physical
examination of Mr. Bhandal, which was "unremarkable apart from
tenderness over the greater occipital nerve areas bilaterally".  He noted
that Mr. Bhandal’s "neurological examination was … found to be within
normal limits".

[40]       
Dr. Mackie’s "presumptive diagnosis" was occipital
neuralgia.  At trial, he explained that occipital neuralgia is pain
attributable to irritation or damage to the occipital nerves arising from the
upper cervical spine and spreading across the back of the skull.  He said that
when irritated, these nerves cause pain in the distribution of the nerve up,
from the base of the skull, over the back of the head.  He recommended ice
massage and a topical anti-inflammatory ointment called diclofenac.  He advised
Mr. Bhandal to take a "graded" return to work.  At trial he said
that when he first sees a patient who has been off work he always suggests they
try returning to work.  He said that this was early on in his treatment of Mr. Bhandal
and he was more optimistic at that time.

[41]       
Mr. Bhandal was next seen by Dr. Mackie on January 11, 2012.  At
that time, according to Dr. Mackie, he reported continued pain despite the
ice massage and topical diclofenac.  Dr. Mackie recommended that Mr. Bhandal
undergo an injection of Depo-Medrol with lidocaine into the affected areas.  Dr. Mackie
explained that Depo-Medrol is a cortical steroid that acts as an
anti-inflammatory agent and lidocaine is a short lasting local anesthetic that acts
as a nerve block.

[42]       
Mr. Bhandal saw Dr. Nagle on January 16, 2012.  She continued
to recommend that he try to return to work.  Her clinical records for that
appointment indicate that Mr. Bhandal was very hesitant to do so.  She
acknowledged at trial that she "strongly recommended" that he return
to work at least part time and that they "compromised" by agreeing
that he would return to work after the Depo-Medrol injection.  She acknowledged
that at the time, on January 16, 2012, she and Mr. Bhandal had differing opinions
as to whether he should return to work.

[43]       
Mr. Bhandal received the injection of Depo-Medrol and lidocaine on
January 26, 2012.  He testified that his pain intensified for a few days
after the injections but then it improved and he was pain-free for about a
week.  However, he said the pain gradually returned to its previous level.

[44]       
Nevertheless, Mr. Bhandal testified that he was ready to proceed
with the return-to-work program he had developed with Wilson from Karp.  He
testified that the soft tissue injuries had largely resolved and he was no
longer suffering from back pain, jaw pain or frontal headaches.  He said Crown then
advised him that they could not accommodate a graduated return to work because
they already had other employees on light duties.  In the result, he remained
on short-term disability benefits until July 2012 when he started receiving
long-term disability benefits.

[45]       
By February 2012, the No. 1 Road property had been subdivided and
one of the lots was transferred into Mr. Bhandal’s name.  The other is
registered in Gurinder Bhandal’s name.  Construction of the two houses began in
June 2012.

[46]       
Mr. Bhandal was next seen by Dr. Mackie on April 10, 2012.  He
told Dr. Mackie that he had some temporary pain relief following the
Depo-Medrol injection.  At trial, Dr. Mackie said that this temporary
response from the injection "warrants consideration" because it
suggests that there is "something locally active".  However, he did
not consider the treatment successful because the benefit was not sustained.

[47]       
Over the next almost 2 ½ years, between July 2012 and September 2014, Mr. Bhandal
saw Dr. Mackie on approximately 11 occasions.  Several treatments were
tried to eliminate or reduce his occipital pain.  Mr. Bhandal reported to Dr. Mackie
that some of these treatments resulted in no benefit, some made things worse,
and some resulted in some benefit but with intolerable side effects.  These
treatments included:

·      
continued use of ice massage and the topical diclofenac, but according
to Mr. Bhandal with limited benefit;

·      
gabapentin (a medication first developed as an anti-convulsant
medication but also used for neuropathic pain) which, according to Mr. Bhandal,
resulted in limited benefit but also side effects including drowsiness, abdominal
cramps and diarrhea;

·      
Marcaine injections (another nerve block, similar to lidocaine,
but without the cortical steroid) which, according to Mr. Bhandal,
resulted in an initial but short-lived local anesthetic effect followed by
worsened pain;

·      
topiramate (another medication first developed as an
anti-convulsive therapy but, according to Dr. Mackie, also proven to work
with headache and neuropathic pain) which, according to Mr. Bhandal,
resulted in some benefit but with side effects including loss of appetite and
mental slowness;

·      
Cymbalta (primarily an antidepressant medication but, according
to Dr. Mackie, a drug that also has some efficacy as an neuropathic pain
medication) which, according to Mr. Bhandal, resulted in side effects
including constipation and blood in Mr. Bhandal’s bowel movements;

·      
tizanidine (a muscle relaxant medication) in gradually increasing
doses which, according to Mr. Bhandal, resulted in sedation side effects;
and

·      
Botox injections (a neuromuscular blocking agent) which, Mr. Bhandal
said, resulted in no meaningful benefit and, if anything, worse pain.

[48]       
Mr. Bhandal had been smoking marijuana that he bought on the
street.  He said it helped with the pain.  In about August 2012, he started
smoking what he referred to as "medical" marijuana.  He said he got a
medical marijuana card and started buying his marijuana from a dispensary.  In
cross-examination he testified that he used Dr. Nagle’s first report
prepared for this litigation, dated May 31, 2012, to obtain the medical
marijuana card.  He acknowledged this was not done on Dr. Nagle’s
recommendation.  Dr. Nagle testified that while he later advised her that
he was smoking marijuana she was not involved in him obtaining the medical
marijuana card.  She testified that she does not prescribe marijuana but she
was not adverse to him smoking it.  Mr. Bhandal testified that he smokes
marijuana every day, usually in the evenings.  He says it helps with his
appetite and with the head pain.

[49]       
On April 4, 2013, Dr. Nagle suggested that Mr. Bhandal consult
a chronic pain specialist.  However, he was continuing to see Dr. Mackie
and he did not want to see anyone else at that time.  In cross-examination, Dr. Nagle
said that she made the suggestion because Mr. Bhandal "was stuck"
and she "wanted to try a different angle", but Mr. Bhandal was
comfortable with Dr. Mackie and wanted to continue with Dr. Mackie’s
approach.  In re-examination she said she considered this to be reasonable.

[50]       
In October 2013, Mr. Bhandal stopped receiving long-term disability
benefits.  He testified that he would have to have been disabled from all
occupations in order to continue to receive the benefits.  He eventually
initiated an appeal of the termination of his long-term disability benefits,
but the outcome of the appeal was not known at the time of the trial.

[51]       
Also in October 2013, the two houses on No. 1 Road were listed for
sale with Mr. Bhandal.  He testified that the plan had been for him and
his family to live in the homes but by the time construction was complete he
could not afford to hold both the Steveston house and one of the No. 1
Road houses.  If he was not going to live at No. 1 Road then his brother
did not want to live there either and they decided to sell both houses.  He
testified that he tried to sell them and did some showings but they did not
sell.  He said he struggled with keeping appointments and being upbeat and
responsive with potential purchasers.  Eventually the houses were taken off the
market and, in February 2014, Gurinder and his wife and children moved into one
of them and Mr. Bhandal and his parents moved into the other.  Gurinder
testified that Mr. Bhandal’s poor performance in trying to sell the homes
caused a rift between them.  However, neither Mr. Bhandal nor his brother
explained why, when Mr. Bhandal’s efforts failed, they did not retain a
different realtor to sell the homes.

[52]       
In April 2014, Mr. Bhandal underwent a second MRI on Dr. Mackie’s
recommendation, as a precautionary step to ensure nothing had been missed. 
Again, no abnormalities were noted.  Dr. Mackie explained that he was not
expecting to see anything on the MRI reports as a result of the occipital neuralgia
that he had diagnosed.

[53]       
Mr. Bhandal testified that 2014 was the toughest year of his life.  He
said he had received "bad news, after bad news".  Dr. Mackie’s
last suggestion of Botox had not worked.  His long-term disability benefits had
been terminated.  He said the constant head pain was "chipping away"
at him.  He became frustrated and depressed.  He also testified that looking
back on his life he was probably depressed from the time he was a child.  He
suspected that he was bipolar.  He said that since childhood he has experienced
vacillating moods, with alternating periods of highs and lows.  However, he said
his psychological symptoms did not interfere with his ability to function until
after the accident.  By 2014 he said he was regularly breaking down and crying,
getting angry, and fighting with his parents.  By August 2014, he decided to
talk to Dr. Nagle about these symptoms.

[54]       
On September 10, 2014, Mr. Bhandal told Dr. Nagle about having
symptoms of depression and mania dating back to his childhood.  She said she was
very concerned at the time about his mental health and referred him to a
psychiatrist, Dr. Costin.  She also suggested that he begin medication to
address the mental health symptoms but Mr. Bhandal wanted to see the
psychiatrist first.  At trial, Dr. Nagle testified that she considered
that response to be reasonable in the circumstances.  In cross-examination, Dr. Nagle
agreed that there was some delay in Mr. Bhandal seeing Dr. Costin but
that was due to a lack of response by Dr. Costin’s office.  Mr. Bhandal
testified had seen Dr. Costin couple of times prior to the trial and that
they were discussing treatment options.  He did not mention taking any
medication for the psychological symptoms and Dr. Costin did not testify.

[55]       
Also on September 10, 2014, Mr. Bhandal and Dr. Nagle discussed
his continuing head pain.  They discussed the various medications that he had
tried on Dr. Mackie’s advice and their resulting side effects.  Mr. Bhandal
told Dr. Nagle that he did not want to take further medications for pain.  She
considered this to be a reasonable response because of the side effects he said
he was having.  He also told her that he was using marijuana regularly for pain. 
She testified that she considered that to be reasonable.

[56]       
During a visit on September 12, 2014, Dr. Mackie and Mr. Bhandal
reviewed all the treatments that had been tried.  Mr. Bhandal reported
that the only one that offered any meaningful benefit was topiramate, although
it did result in side effects.  Nevertheless, Mr. Bhandal decided to try topiramate
again, together with the topical diclofenac.  However, he reported suffering
the same kind of side effects again, including low appetite and mental
slowness.  At his last visit with Dr. Mackie in December 2014, it was
decided that he would stop taking the topiramate due to the side effects.  Dr. Mackie
referred Mr. Bhandal to a pain clinic at St. Paul’s Hospital.  By the time
of trial, Mr. Bhandal had not yet started attending the clinic.

[57]       
Mr. Bhandal testified that in November 2014 he contacted Crown and advised
that he wanted to try to return to work.  He received a letter from Crown
requesting current medical information in order to determine whether he had the
ability to return to work and whether Crown would be in a position to
accommodate any functional limitations.  The letter stated that unless Crown
was provided with a medical opinion that he was able to return to work on a
regular basis in the foreseeable future with, or without, accommodation, his
employment would be terminated on December 31, 2014.

[58]       
Dr. Nagle then submitted some medical information to Crown indicating
that Mr. Bhandal was unable to do his regular job and asking whether there
was a more sedentary job.  At the same time, Mr. Bhandal was appealing the
termination of his long-term disability benefits.  In order to do that he has
to establish that he is unable to perform the essential duties of any
occupation for which he is qualified or may reasonably become qualified.  Crown
pointed out that his request to return to work and Dr. Nagle’s view that
he might be able to work in a sedentary job, were inconsistent with his appeal.
Crown also advised that it could not permanently accommodate him in a
sedentary role.  Nevertheless, Crown provided an extension and suggested that
he undergo an independent medical examination at Crown’s expense in order to
determine whether he was likely to return to work on a regular basis in the
foreseeable future with, or without, accommodation.  He was asked to complete
an authorization for release of information for the purpose of an independent
medical examination.  He did not testify as to whether he submitted that
authorization or attended the independent medical examination.  However, he maintained
that he wants to return to work.

[59]       
Mr. Bhandal testified that his head pain remains debilitating.  He
described it as feeling like the back of his skull is on fire.  He said that
while its intensity fluctuates, it is always present.  He said he typically is
at his best in the morning, but his pain worsens throughout the day.  He said
that any type of movement increases the pain.  He goes for daily walks of
approximately 45 minutes and to yoga, but finds that both activities worsen the
pain.  He said in the evenings the pain is at its peak and is sharp and stabbing,
like an ice pick.

[60]       
Mr. Bhandal testified that he continues to suffer significant mood
symptoms in addition to the pain.  He said he has been more consistently down
since the accident, with greater time spent in depressive phases.  He said his
energy has declined, he has difficulty sleeping, he has a lower appetite, he is
pessimistic, he has difficulty concentrating, he is socially withdrawn and he feels
exhausted emotionally, mentally and physically.  He said he is irritable,
volatile, easily brought to anger, unreasonable, mentally slow and feels
hopeless.  He said his mood symptoms are worse when the pain is more intense.

[61]       
Mr. Bhandal has tried a variety of medications for pain, some of
which are also utilized in treating mood disorders.  However, at the time of
trial he had ceased taking all prescription medication, with the possible
exception of the topical diclofenac, and was managing his pain with marijuana,
which he smokes daily.  He testified that he might try topiramate again in the
future.

[62]       
Mr. Bhandal testified that he can use a computer but that he has to
take a break every hour or so to stretch his neck.  He said that the maximum
amount of time he could spend on the computer in a day is about three hours. 
However, he said that if he did that he would be in pain afterwards and would
have to rest and not do anything else for the rest of the day.  He testified
that he can read but he has to shift positions periodically.

[63]       
Mr. Bhandal testified that he no longer plays soccer.  He said he
tried to ride his bike but it hurts his head to wear a helmet.  He cannot run
or kickbox because the impact worsens his head pain.  He said the back of his
head is aggravated even by wearing hats, wearing sunglasses and having his hair
cut.  He continues to practice yoga as often as five times a week.

[64]       
Mr. Bhandal testified that he can no longer perform outdoor house
maintenance.  He said he tried cutting the grass a couple of times in the
summer 2012 but after 45 minutes he stopped because he was in too much pain.  He
hired someone to do the grass after that.  He acknowledged that there is no
grass to cut in the new house on No. 1 Road.

[65]       
Mr. Bhandal testified that he no longer socializes much.  He rarely
drinks alcohol because he has been on medication and if he does have a drink he
has to recover the next day.  He testified that everything in his life has to
be planned like a military operation.  If he knows he has to go somewhere, he
has to plan time to recover.  If he knows he has to spend some time cleaning up
the house because his parents are away, he forgoes a walk because he cannot do
both.  He said that although his mother does most of the indoor housework, when
she is away he has to do some light cleaning such as emptying the dishwasher,
cooking and vacuuming.  He said he breaks the tasks down, with breaks in
between, and compensates by not doing other things like yoga or a walk.

Credibility and
Reliability of the Evidence

[66]       
As I said in the introduction, the critical questions that need to be
answered are what injuries were caused by the accident and what effect those
injuries have had on Mr. Bhandal’s life.  As in most cases involving
subjective complaints, the answers to these questions turn to a significant
extent on Mr. Bhandal’s credibility.  It is particularly important to
exercise caution and examine his evidence carefully: Price v. Kostryba (1982),
70 B.C.L.R. 397 (S.C.) at 399.

[67]       
While there was some objective evidence of Mr. Bhandal’s soft
tissue injuries, his subjective reports of ongoing occipital pain provide the
foundation for the expert evidence relevant to the critical issues.  This is
true of all the medical opinions.  Mr. Bhandal’s subjective complaints
also provide the foundation for the opinion of Derek Nordin who, after
performing a vocational assessment, expressed the view that Mr. Bhandal is
not competitively employable.  That opinion was based on Mr. Bhandal’s
subjective reports of pain and psychological symptoms, and his results from a
battery of tests that were also entirely subjective and did not assess the
legitimacy of his effort.  As such, Mr. Bhandal’s credibility is the
cornerstone of his claim.  If his account is not convincing, the hypothesis upon
which his expert evidence rests is undermined: Samuel v. Chrysler Credit
Canada Ltd., 2007 BCCA 431 at paras. 15, 43-44.

[68]       
I found Mr. Bhandal’s
evidence to have significant shortcomings.

[69]       
Some aspects of Mr. Bhandal’s evidence were unreasonable.  This was
the case with respect to his testimony concerning why he has not attempted to
return to any form of employment.  By late 2011, more than three years before
trial, Dr. Nagle and Dr. Mackie were both recommending that he
attempt to return to work in some capacity.  Mr. Bhandal had been working
with Wilson from Karp Physiotherapy on a return to work program since October
2011.  He testified that he was ready to proceed with it in February 2012, but
Crown could not accommodate light duties.  He said he was frustrated by this
because he had worked so hard with Wilson and he really wanted to try going
back to work.  However, this is inconsistent with Dr. Nagle’s evidence.  She
testified that in January 2012, Mr. Bhandal was expressing great
reluctance about returning to work.  Mr. Bhandal did not explain why he
was expressing great reluctance to Dr. Nagle in January and yet claimed to
be ready, and even eager, to return to work in February.

[70]       
Mr. Bhandal was receiving disability benefits until October 2013.  While
it is somewhat understandable that he chose not to look for alternative work
while the disability benefits were being paid, he provided no rational
explanation for his failure to attempt to return to some form of employment
since then.  On the one hand, he is pursuing an appeal of the termination of
his long-term disability benefits, but that will require him to establish that
he is disabled from all occupations which is unlikely given that his doctors
have been recommending for years that he attempt to return to work.  On the
other hand, he said that he wants to "fight for his job at Crown",
but fighting to return to Crown is entirely inconsistent with the appeal of his
long-term disability benefits.  Further, Crown told him that if he wants to try
to return to work he must attend an independent medical examination and there
is no evidence that he did that and no explanation of why he did not.  In the
absence of a rational explanation, the inference I draw is that Mr. Bhandal
intentionally delayed a real trial of his ability to work because he thought
that a true evaluation of his capacity might detract from the position he
wished to advance in this case.

[71]       
In addition to being unreasonable in some respects, I found Mr. Bhandal’s
evidence to be surprisingly vague on some important matters.  He testified that,
before the accident, he planned to develop his real estate business on the side
while he continued to work at Crown.  He had his realtor’s licence for eight
months before the accident and yet his evidence concerning his plans for
developing the business and the steps he took to implement those plans during
those eight months was very vague.  He said only that he planned to target his
family members who were in the construction field for listings and then branch
out once he had some experience, but he gave no evidence of what specific
efforts he made to target those family members.  For example, he did not
testify about any particular discussions or conversations that he had with any
of them.  He did not give the names of any of these family members or explain
what actual involvement any of them have in the construction industry and,
given that involvement, the potential volume of work he expected to receive
from them.

[72]       
It is clear that Mr. Bhandal played some role in the construction
of the two houses on the No. 1 Road property, but he gave very little, if
any, evidence on this topic.  Mr. Bhandal’s cousin, Mr. Guvinder
Aujla, is in the residential home construction and landscaping business.  He
testified at the trial.  I have concerns about his credibility, which I will
address below.  However, he said that Mr. Bhandal was directly involved in
the construction of the two houses.  The houses were built between June 2012
and September 2013, which is after the accident and during a time when Mr. Bhandal
maintains he could not work.  Mr. Aujla said Mr. Bhandal was
responsible for navigating the subdivision application through the rezoning
process with the city, and that he supervised the construction and organized
the trades.  Mr. Aujla claimed that Mr. Bhandal struggled with these
tasks and that Mr. Aujla eventually had to take over the project, but
given my concerns about his credibility generally, I place no weight on that
evidence.  The point is that Mr. Bhandal himself did not testify about his
role in this significant project and the difficulties, if any, that he
encountered with it.  This is troubling, given Mr. Aujla’s evidence that
he played quite a central role and Mr. Bhandal’s claim that he has been
unable to work at all since the accident.

[73]       
Mr. Bhandal testified that he tried to sell the two homes on No. 1
Road in the fall of 2013 but was unsuccessful.  He implied that his injuries
prevented him from marketing the properties effectively.  However, he provided
no explanation for why he did not retain a different realtor, if he felt he was
not up to the task.  Further, his evidence about why he decided, a few months
later, not to sell the houses but rather to move into one of them was
implausible.  He said the original plan was to move into one of the houses on No. 1
Road but that, when construction was complete in October 2013, he could not
afford to continue to own both the Steveston house and the No. 1 Road
house and so decided to sell the latter.  However, a few months later, in
February 2014, he moved into one of the No. 1 Road houses and he kept the
Steveston house as well.  He did not explain what changed between October 2013,
when he concluded he could not afford to keep both houses, and February 2014,
when he decided to keep both.

[74]       
Mr. Bhandal immigrated to Canada, in 2004 at age 29, and did not
attempt to look for work for about three years.  He provided no reasonable
explanation for that, saying only that he was settling into Canada.  Mr. Sall
and Mr. Aujla both testified that they did not notice Mr. Bhandal to
be having any difficulty adjusting to life in Canada.

[75]       
Mr. Bhandal’s tendency towards vagueness was commented upon by some
of his own expert witnesses.  Mr. Nordin noted in his report that he found
Mr. Bhandal to be "a weak historian" and that he "tended to
be tangential".  Dr. Rasmusen acknowledged in cross-examination that
he had a difficult time delineating facts that would allow him to determine
whether Mr. Bhandal’s psychological symptoms were worse after the accident
as he could not determine the frequency and severity of the episodes prior to
the accident.  He agreed that Mr. Bhandal was a poor historian.

[76]       
Mr. Bhandal also demonstrated a tendency to exaggerate and
embellish.  For example, in his direct evidence he described his job at Crown
as "one of the most physically demanding jobs in the plant" and said it
involved "lots of pushing, shoving, picking up pallets and running around".
His evidence was interrupted in order to accommodate the testimony of Mr. Sall,
who also works at Crown.  Mr. Sall said that Mr. Bhandal’s job was of
a "mid-labour intensity".  Later, when Mr. Bhandal continued his
direct evidence, he backed down from his earlier assertions and said that his
job was "one of the busiest jobs" but he did not know if it was "one
of the most physical".  The defendant called Mr. Gordon Speers, a senior
production supervisor at Crown, who said the unitizer operator job is not one
of the most physical jobs in the plant.  He said there is not a lot of pushing
and shoving involved in the unitizer operator job and not a lot of picking up
pallets.  He also said there is no running around in the plant.

[77]       
Mr. Bhandal testified that the unitizer machine was the size of a "football
pitch".  In contrast, Mr. Sall testified that the unitizer machine
was about 75 feet long and Mr. Speers said it is about 120 feet long.

[78]       
Mr. Bhandal said that his job had "loads of overtime".  However,
in cross-examination, he agreed that the "loads of overtime" he spoke
about in his direct examination applied only to an approximately two-month
period during which the unitizer machine was being broken in and that otherwise
overtime was available to him only about one shift every sixth Saturday.

[79]       
Finally, I was troubled by Mr. Bhandal’s poor performance on the
academic achievement, aptitude and vocational interest tests administered by Mr. Nordin. 
As noted by Mr. Nordin numerous times in his report, Mr. Bhandal’s
results were significantly lower than expected given his academic achievements.
For example, Mr. Bhandal tested at a grade 5.5 level in spelling and a grade
8.0 level in math computation, the latter of which is particularly striking
given his university degree included a focus on accounting.  He ranked in the
14^th percentile in reading, which is very surprising given his
academic accomplishments, including the completion of the course work, through
UBC, to obtain his real estate licence.  Further, while he was testifying he
was asked, on a couple of occasions, to read portions of letters out loud and
it was apparent that he had no difficulty.

[80]       
Mr. Nordin also noted that Mr. Bhandal had a very weak
aptitude profile.  Mr. Bhandal’s general learning ability score placed him
in the lower one-third of the general working population – a score that, in my
view, is inconsistent with his actual academic achievement.  His numerical
aptitude score was in the bottom 10% of the population, which Mr. Nordin
noted was lower than expected given his university degree as well as his
average math computation results.  Mr. Nordin also noted that his general
learning ability result (at the 12^th percentile) was lower than
expected given his achievement of a four-year university degree.  I noted that
his verbal aptitude score was in the bottom 10% of the population, which was
inconsistent with the excellent verbal ability he demonstrated on the witness
stand.

[81]       
Mr. Nordin also administered a personality questionnaire and
concluded, among other things, that Mr. Bhandal’s results may reflect "a
deliberately negative self-presentation".

[82]       
Mr. Nordin provided no opinion with respect to why Mr. Bhandal
might have performed so poorly on the tests he administered.  He confirmed that
there is nothing in the test battery that measures whether the subject is using
best efforts.  I appreciate that Mr. Bhandal claims that his symptoms
affect his ability to concentrate but he did not testify to having any
particular difficulty completing this testing.  Even accounting for some
impairment in his ability to concentrate, his scores were far below what one
would expect given his academic achievements and inconsistent with his verbal and
reading abilities as demonstrated in the witness stand.  Given the unusual results,
the absence of any explanation for the unusual results, and the lack of any
measure of effort, I am not prepared to place any weight on Mr. Nordin’s
report in assessing Mr. Bhandal’s vocational capacity.  In addition, the
inconsistency of the results with Mr. Bhandal’s actual academic
achievement added to my concerns about Mr. Bhandal’s credibility.

[83]       
Mr. Bhandal was not assisted by the evidence of his brother, Gurinder
Bhandal, or his cousin, Guvinder Aujla.  I do not intend to refer to the
evidence of either one of them in detail because I have concluded I cannot give
it any weight.  Both of them were deliberately misleading and this tainted
their entire evidence.

[84]       
In his direct evidence, Mr. Aujla testified that as a building
contractor he builds between eight and ten single-family homes a year and then
sells them.  He spoke about his willingness to give Mr. Bhandal a chance
to sell homes for him.  He said if it were not for the impact Mr. Bhandal’s
injuries have had on his abilities, he would have tried Mr. Bhandal as a
realtor on one or two homes and, if it went well, he would have continued to
use him as a realtor.  He said that given the changes in Mr. Bhandal since
the accident, he would no longer be comfortable with him being the "face
of a house" he was trying to sell.  However, in cross-examination he
admitted that he no longer builds his own homes to sell but rather works as a
general contractor for others.  The last time he built a home to sell was in 2010
or 2011.  He tried to rehabilitate himself in redirect by saying that when
building homes for others he has the opportunity to recommend realtors to the
owners of the project, but this is very different from the impression he left
by his direct evidence.

[85]       
In addition and as already referred to, Mr. Aujla testified that Mr. Bhandal
was initially responsible for the construction of the two houses on No. 1
Road, but he did such a poor job that Mr. Aujla had to take over the
project.  He emphasized that it took Mr. Bhandal two to three years to get
the subdivision approved by the city and this aspect of a project usually takes
only 18 months to two years to complete.  However, Mr. Bhandal testified
that the property on No. 1 Road was acquired in the summer of 2010 and one
of the lots was transferred into his name in February 2012.  By that time there
were two lots and the subdivision must have been completed.  Even if Mr. Bhandal
started the subdivision process right after the property was acquired in the
summer of 2010, it took no longer than about 18 months to complete.

[86]       
Gurinder Bhandal’s evidence was also concerning. He had a tendency to
embellish.  For example, he referred to Mr. Bhandal as having been "goal-oriented"
before the accident, which is inconsistent with Mr. Bhandal’s sporadic
work history.  When questioned about this in cross-examination, he said he
meant that Mr. Bhandal got a university degree and accomplished a move
from England to Canada; however, those events occurred long before and are
insignificant in light of the subsequent three years during which Mr. Bhandal
did not even attempt to find employment.  Gurinder Bhandal also gave misleading
evidence about Mr. Bhandal’s attendance at Whitecaps games.  He said that
he and Mr. Bhandal have season tickets to the Whitecaps but that Mr. Bhandal
misses many games.  In his direct evidence, he clearly started to say that Mr. Bhandal
did not miss Whitecaps games before the accident.  He then tried to change his
testimony when it was pointed out that they only started buying season tickets
in 2011, which was the Whitecaps’ first MLS season and also the year of the
accident.

[87]       
I have no reason to question the credibility of Mr. Sall.  He
testified in a responsive and consistent manner.  I accept that he has observed
a change in Mr. Bhandal’s personality since the accident and, in
particular, that Mr. Bhandal has become socially withdrawn.

[88]       
For all the reasons I have outlined, I was left with a general concern
that Mr. Bhandal’s evidence was motivated more by his interest in the
outcome of this case than the desire to be candid at all times.  Nevertheless, Dr. Taylor-Hughes
did testify to having observed objective symptoms of soft tissue injuries, Dr. Mackie
testified that Mr. Bhandal’s subjective reporting of occipital pain was
consistent with the neurological anatomy, and Dr. Medvedev testified that Mr. Bhandal’s
complaints are consistent with the mechanism of a whiplash-type injury.  Accordingly,
despite my concerns about Mr. Bhandal’s testimony, there is enough in Mr. Sall’s
evidence and the evidence of Drs. Taylor-Hughes, Mackie, and Medvedev that
persuades me to accept the credibility of his core complaints related to his
soft tissue injuries and the existence of some ongoing occipital pain. 
However, I also conclude that Mr. Bhandal’s complaints about the occipital
pain have been significantly exaggerated and that the occipital pain has not
affected his functional abilities to the extent he claims.

What injuries and conditions
were caused or contributed to by the accident?

Legal Principles

[89]       
Mr. Bhandal must prove, on a balance of probabilities, that the
accident caused his injuries.  The test for causation, established in Athey
v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17, is the "but
for" test.  This requires Mr. Bhandal to establish that it is more
likely than not that but for the accident he would not have suffered the injuries
underlying his claim.

[90]       
Mr. Bhandal does not have to establish that the accident is the
sole cause of the injuries.  So long as a plaintiff proves that a defendant’s
negligence is part of the cause of an injury, beyond the "de minimus"
range, the defendant will be fully liable for the harm suffered, even if other
causal factors, which the defendant is not responsible for, contributed to the
harm: Athey; Blackwater v. Plint, 2005 SCC 58; Resurfice
Corp. v. Hanke, 2007 SCC 7; Clements v. Clements, 2012 SCC 32; Farrant
v. Laktin, 2011 BCCA 336.

Causation Findings

[91]       
Mr. Bhandal’s complaints are grouped into three categories:

(a)      soft tissue injuries causing pain in the neck, back, and shoulders,
jaw pain and frontal headaches;

(b)      chronic occipital pain; and

(c)      an exacerbation of his pre-existing psychological symptoms.

Soft tissue injuries

[92]       
Mr. Bhandal testified that in the immediate aftermath of the
accident he suffered from significant pain in his neck, back, shoulders, and
jaw.  He also suffered from frontal headaches.  He said the jaw pain and
frontal headaches lasted four to six months.  He testified that the pain in his
upper back and shoulders had resolved by about March 2012, when he finished his
course of treatment at Karp.  The defendant did not take issue with much, if
any, of this evidence.

[93]       
Within days of the accident, Dr. Nagle noted pain on palpation and
diagnosed soft tissue injuries.  Soon after that, Dr. Taylor-Hughes noted
limitations in Mr. Bhandal’s range of motion, spasm and swelling.  She
diagnosed Grade II Whiplash and cervicogenic headaches.  I am persuaded by this
evidence that Mr. Bhandal’s soft tissue injuries and the associated pain
were caused by the accident.

Occipital pain

[94]       
Mr. Bhandal testified at some length about his ongoing occipital
pain.  For the reasons already expressed, I accept that he suffers from ongoing
occipital pain, but find that he has exaggerated the pain and the impact it has
on his life.  At this stage, the question is whether he has established that
the ongoing pain I accept he does have was caused by the accident.

[95]       
In her May 31, 2012 report, Dr. Nagle expressed an opinion as to
causation of the ongoing occipital pain:

Based on Mr. Bhandal’s
account of having not had these symptoms before the motor vehicle accident and
based on his description of them coming shortly following the accident, I
attribute his ongoing occipital pain to effects of the April 29, 2011 accident.

[96]       
Dr. Mackie is a neurologist
licensed to practice in the province of British Columbia.  He has been
practicing as a neurologist since July 1993.  He has a special interest in the
area of epilepsy and headache disorders and is a past president of the Canadian
Headache Society and a former member of the professional advisory board of
epilepsy BC.  As already noted, he has been treating Mr. Bhandal on referral
from Dr. Nagle since December 2011.  He prepared reports dated October 22,
2014 and March 2, 2015.  No objection was
made to Dr. Mackie’s qualifications as a medical doctor with a specialty
in neurology.  No objections were made to the admissibility of any portion of
his reports.

[97]       
In his October 22, 2014 report, Dr. Mackie summarized his
diagnosis, opinion as to causation, and treatment:

His diagnosis is posttraumatic
headaches, as a result of the MVA related injury that occurred April 29, 2011,
with localized discomfort in the occipital areas bilaterally suggestive of
occipital neuralgia. Treatment was directed towards a combination of local and
systemic treatment options. Despite multiple treatments with multiple agents
minimal favorable response was ever achieved. No additional identified
structural abnormality was present on repeat MRI imaging.

[98]       
At trial, Dr. Mackie explained that his opinion as to causation was
based on the history of the motor vehicle accident that, as described by Mr. Bhandal,
"would probably have involved some impact of his head against the headrest",
which, in turn, involved impact on the occipital nerves, giving rise to the
symptoms.  A question arose, as a result of a notation in Dr. Nagle’s
clinical records, about whether Mr. Bhandal actually struck his head on
the headrest.  It is not necessary for me to resolve that question because I
accept Dr. Mackie’s testimony at trial that his opinion does not depend on
Mr. Bhandal having actually struck his head.

[99]       
As already noted, Dr. Mackie prepared a second report dated March
2, 2015.  This report specifically addressed Dr. Medvedev’s report, as
summarized below, in which he expressed doubt with respect to the diagnosis of
occipital neuralgia due to the lack of a response to injections of an
anesthetic with a steroid (the Depo-Medrol with lidocaine).  In his March 2,
2015 report, Dr. Mackie expressed the view that while response to therapy
has been included in the diagnostic criteria of occipital neuralgia, this is
intended to guide management strategy, but does not mean that Mr. Bhandal
did not have the clinical features of occipital neuralgia.  In Dr. Mackie’s
view this simply means that he did not respond to the treatment.  However, at
trial, Dr. Mackie said that the temporary response from the Depo-Medrol
and lidocaine injections supported his diagnosis of occipital neuralgia.

[100]     Dr. Medvedev
is a neurologist, qualified as such by the Royal College of Physicians and
Surgeons of Canada.  He has been a practising neurologist in British Columbia
since 2006.  He was qualified as a medical doctor with expertise in neurology. 
At the request of defence counsel, Dr. Medvedev saw Mr. Bhandal for
an independent medical examination on December 18, 2014.  He prepared a report
dated December 29, 2014 and testified at the trial.  No objection was made
to Dr. Medvedev’s qualifications or to the admissibility of any portion of
his report.

[101]     Dr. Medvedev
interviewed Mr. Bhandal and reviewed a number of documents, including
clinical records, in preparing his report.  However, he had Dr. Mackie’s
records only for the period from December 20, 2011 to February 17, 2012 and he
did not have Dr. Mackie’s medical report of October 22, 2014.  Mr. Bhandal
told Dr. Medvedev that he tried a number of medications, including the Depo-Medrol
and lidocaine injection, and "none of these treatments were helpful". 
Dr. Medvedev was unaware that in fact Mr. Bhandal experienced a week
of relief from the occipital pain following the Depo-Medrol injection in
January 2012.  It was not until April 10, 2012, that Mr. Bhandal told Dr. Mackie
that he had experienced this temporary relief and so this was not noted in the
clinical records that Dr. Medvedev reviewed.

[102]     Dr. Medvedev
diagnosed Mr. Bhandal with "chronic occipital pain".  He
explained that he considered this diagnosis to be more appropriate than "occipital
nerve neuralgia".  Dr. Medvedev acknowledged that the history of Mr. Bhandal’s
symptoms and the mechanism of his injury (that is, the forward and back motion
associated with whiplash) are consistent with a diagnosis of occipital
neuralgia.  However, the lack of findings suggesting significant neurological
dysfunction and his assumed lack of response to the Depo-Medrol injection were
considered by him to be atypical.  Thus, in his view, a "lack of a
unifying diagnosis" allows for only the term "chronic occipital pain"
to be used to describe his condition.  However, in cross-examination, Dr. Medvedev
agreed that it is possible that Mr. Bhandal has occipital neuralgia.  Further,
he confirmed that he had been unaware that Mr. Bhandal did experience a
week of relief from the occipital pain following the Depo-Medrol injection.  He
agreed that one week of relief would be appropriately characterized as a
response to the medication.

[103]     Dr. Medvedev
expressed the view that the temporal relationship between Mr. Bhandal’s occipital
pain symptoms and the accident is "consistent with the accident as a cause"
of those symptoms.

[104]     Thus, the medical experts agree that the occipital
pain was caused by the accident.  While their opinions are based on Mr. Bhandal’s
subjective reporting, I do accept that he has suffered from some ongoing
occipital pain.  It is the extent of the pain and the impact of it on his life
that are complicated by my findings concerning his credibility.  The dispute with
respect to the occipital pain, other than its intensity, is whether the proper
diagnosis is "occipital neuralgia" or the more generic "occipital
pain".

[105]     I am inclined to prefer Dr. Mackie’s diagnosis of
occipital neuralgia.  This is because Dr. Medvedev’s opinion is based
largely on the lack of response to the Depo-Medrol injection and he was unaware
that Mr. Bhandal did have a temporary response.  In addition, Dr. Medvedev acknowledged that the history of Mr. Bhandal’s
symptoms and the mechanism of his injury are consistent with a diagnosis of
occipital neuralgia. Further, Dr. Mackie
saw Mr. Bhandal not just once, for the purpose of preparing a report for
litigation, but several times as his treating specialist.  In my view he was in
a better position to diagnose Mr. Bhandal’s condition.  In any event, the
specific diagnosis does not make much difference in the analysis because the
symptoms are the same whether the condition is called occipital neuralgia or
occipital pain.  The severity of the pain and its impact on Mr. Bhandal’s
life are subjective matters with respect to which the medical evidence is of
little, if any, assistance.

Psychological symptoms

[106]     The defence did not take serious issue with Mr. Bhandal’s
claim to be suffering from psychological symptoms.  Rather, the defence positon,
as I understand it, was that Mr. Bhandal has not established that those symptoms
were caused by the accident.

[107]     Mr. Bhandal relied on the opinion evidence of Dr. Rasmusen
respecting the existence of, cause of and prognosis for the psychological
injuries.

[108]     Dr. Rasmusen is a psychiatrist, qualified as such
by the Royal College of Physicians and Surgeons of Canada.  On November 18,
2014, Dr. Rasmusen assessed Mr. Bhandal at the request of Mr. Bhandal’s
counsel.  He authored a report dated December 5, 2014.  No objection was made
to Dr. Rasmusen’s qualifications as an expert in medicine with a specialty
in psychiatry or the admissibility of any portion of his report.

[109]     Dr. Rasmusen
diagnosed Mr. Bhandal as suffering from "other specified bipolar
disorder".  He explained that Mr. Bhandal meets all the DSM-V
criteria for bipolar disorder-type II, except the time duration of "hypomanic"
or "high" episodes, which, according to the DSM-V criteria, must last
at least four consecutive days.  Because Mr. Bhandal reported highs
lasting only part of the day, Dr. Rasmussen opined that his diagnosis best
fits "other specified bipolar disorder".

[110]     In Dr. Rasmusen’s
opinion, and based on Mr. Bhandal’s self-report, Mr. Bhandal was
likely suffering from other specified bipolar disorder prior to the accident.  He
said the mood disorder itself was not caused by the accident; however, in his
opinion, "it is possible" that with Mr. Bhandal’s chronic pain,
which Mr. Bhandal said affects his sleep and his ability to exercise, the
mood disorder has become more severe.  As a result, it is Dr. Rasmusen’s
opinion that the accident increased the severity of Mr. Bhandal’s mood
disorder symptoms.

[111]     Dr. Rasmusen
agreed that his opinion depends significantly on Mr. Bhandal’s subjective
reports of his symptoms and that it is necessary to know how frequently Mr. Bhandal
suffered depressive episodes in the past in order to compare his condition
before and after the accident.  He said that Mr. Bhandal had difficulty "delineating"
the change in his symptoms and was a "poor historian", meaning that
he was unable to relate specifics about the change in his symptoms after the
accident.

[112]     In her October 30, 2014 report, Dr. Nagle addressed
Mr. Bhandal’s mood symptoms.  She said that she believes Mr. Bhandal
has suffered from significant mental health issues for many years and "his
long-standing mental health symptoms have been aggravated by the motor vehicle
accident of April 29, 2011".  She explained the basis for that opinion was:

Prior to the accident, he was
coping. He was a productive member of society. However, the accident and
subsequent chronic occipital pain he is experiencing have thrust his mental
issues into the forefront. Of note, it has been difficult for Mr. Bhandal
to express his mood to me. He is a very private person in this regard.

[113]     While the
physicians are entitled to take Mr. Bhandal’s complaints at face value,
the court is required to take a more critical view.  Dr. Nagle’s opinion
concerning the cause of Mr. Bhandal’s mood symptoms is based entirely on Mr. Bhandal’s
subjective reporting and given my concerns about his credibility I am not
prepared to give this aspect of her opinion any weight.  Similarly, the
subjective nature of the mood complaints and my concerns about Mr. Bhandal’s
credibility also significantly detract from the weight of Dr. Rasmusen’s
opinion.  As a result, there is insufficient reliable evidence to persuade me
that the injuries suffered by Mr. Bhandal have caused an exacerbation of his
pre-existing mood disorder.

[114]     Further, Dr. Rasmusen
acknowledged that it is necessary to know how frequently Mr. Bhandal
suffered depressive episodes in the past in order to compare his condition
before and after the accident and that Mr. Bhandal was unable to relate
specifics about the change in his symptoms after the accident.  While Mr. Bhandal
claimed, at trial, that there has been a change, I was not persuaded by his
testimony.  In particular, his unexplained failure to seek any employment
during the three years after he moved to Canada suggests he was not coping well
prior to the accident.  In all the circumstances, I am not persuaded that it is
more likely than not that Mr. Bhandal has suffered any exacerbation of his
pre-existing mood disorder but, if he has, I am not persuaded that this was
caused by the accident.

Conclusion on causation

[115]     In summary, I make the following findings on causation
and the current state of Mr. Bhandal’s condition:

·      
Mr. Bhandal suffered moderate
soft tissue injuries to his neck, back and shoulders in the accident that initially
resulted in significant pain and disability, but which largely resolved within
about a year of the accident.

·      
Mr. Bhandal developed
occipital neuralgia as a result of the accident, which causes him some ongoing
pain in the back of his head and pain and stiffness in his neck at the base of
the skull.  I will address the severity of that pain below, in the
non-pecuniary damages section of this judgment.

·      
Mr. Bhandal suffered from a
pre-existing mood disorder that, more likely than not, is a bipolar disorder.  I
am not persuaded that he has suffered a material exacerbation of that mood
disorder since the accident.  However, if he has, I am not persuaded that the
exacerbation was caused by the accident.

Mitigation

[116]     The
defendant submits that Mr. Bhandal failed to mitigate by failing to take Dr. Nagle’s
advice to return to work in some capacity, by failing to take Dr. Nagle’s
advice to attend a pain specialist, and by his ongoing resistance to
medication.

[117]     In order
to establish that a plaintiff has failed to mitigate by not pursuing
recommended treatment, the defendant must prove, on a balance of probabilities,
that the plaintiff acted unreasonably and also the extent to which the
plaintiff’s damages would have been reduced had the plaintiff undergone the
treatment in question: Chiu v. Chiu, 2002 BCCA 618 at para. 57.
In Gregory v. ICBC, 2011 BCCA 144, Madam Justice Garson expressed the
test at para. 56:

I would describe the
mitigation test as a subjective/objective test. That is whether the reasonable
patient, having all the information at hand that the plaintiff possessed, ought
reasonably to have undergone the recommended treatment. The second aspect of
the test is "the extent, if any, to which the plaintiff’s damages would
have been reduced" by that treatment. [Emphasis in original.]

[118]     As I
understood it, the defendant’s submission concerning Mr. Bhandal’s failure
to return to work was founded upon Dr. Nagle’s testimony to the effect
that her recommendation that he try to return to work was a therapeutic one.  She
explained that she thought Mr. Bhandal’s recovery might be enhanced if he
could re-establish some normalcy in his life.  It is clear that by late 2011, Dr. Nagle
and Dr. Mackie were both of the view that Mr. Bhandal should attempt
to return to work, at least in some sedentary role.  I find that Mr. Bhandal
failed, unreasonably, to take that advice.  While that affects his loss of
earning capacity claim, it is not sufficient to establish a failure to mitigate
that would affect his claim more generally.  As noted above, the defendant must
also establish that Mr. Bhandal’s damages would have been reduced had he
attempted to return to work; in other words, that a return to work would have
helped to lessen his symptoms.  The evidence does not go that far.

[119]     On April
4, 2013, Mr. Bhandal advised Dr. Nagle that he was still experiencing
occipital pain.  He was continuing to see Dr. Mackie.  Dr. Nagle
suggested referral to a chronic pain specialist but Mr. Bhandal did not
want to proceed with that at the time.  In cross-examination Dr. Nagle
said that she suggested the chronic pain specialist because Mr. Bhandal "was
stuck" and she "wanted to try a different angle" but Mr. Bhandal
was comfortable with Dr. Mackie and wanted to continue with Dr. Mackie’s
approach.  In re-examination she confirmed that she considered this to be
reasonable.  The defendant led no contrary evidence.  I am not persuaded that Mr. Bhandal
acted unreasonably in this respect.

[120]     As already
noted, on September 10, 2014 Mr. Bhandal told Dr. Nagle that he was
continuing to experience occipital pain but that he did not want to take
further medications as a result of the side effects.  She said she considered
this to be a reasonable decision because of the side effects he was experiencing
from the various medications.

[121]     In
cross-examination, Dr. Mackie was questioned about whether it was
reasonable for Mr. Bhandal to terminate the use of the medications he had
recommended.  He explained that he considers Depo-Medrol a rarely performed
treatment because of the side effects associated with the steroid.  He said
that it is unlikely that he would support using this treatment more than once. 
He said that as of December 2014, he was still encouraging Mr. Bhandal to
continue to use the topical diclofencac and he stressed that he "doesn’t
like to give up".  However, when Dr. Mackie’s evidence is considered
as a whole, it is apparent that he did not consider Mr. Bhandal’s
decisions regarding the termination of medications to be unreasonable.  For
example, he confirmed that he thought Mr. Bhandal’s decision, in January
2014, to forgo all medications, at least for a period of time, was reasonable. 
He also said that Mr. Bhandal’s symptoms had persisted despite Mr. Bhandal’s
"best efforts".

[122]     The defendant led no evidence that would support the
proposition that Mr. Bhandal’s decision to terminate the use of any
medication or to forgo any treatment was unreasonable.

[123]     For the forgoing reasons I find that the defendant has
not established that Mr. Bhandal failed to mitigate.

Assessment of
Damages

[124]     Mr. Bhandal
testified about the effect of his injuries on his life, but for the reasons I
have already expressed I found his evidence to be exaggerated.  I was also left
with a general concern that his testimony was motivated more by his interest in
the outcome of this case than the desire to be candid.  Further, he is
suffering from a pre-existing mood disorder that is having an impact on his
life and I am not persuaded that this condition has been exacerbated by the
injuries he suffered in the accident.  In these circumstances, it very
difficult to disentangle the web and assess specifically how his life has been
impacted by the accident.  I must do the best I can to award damages
commensurate with the degree of injury I find was actually suffered by Mr. Bhandal
as a result of the accident.

Non-pecuniary
damages

[125]     An award of non-pecuniary damages is intended to
compensate for pain and suffering, loss of enjoyment of life, and/or loss of
amenities.  In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave
to appeal ref’d [2006] S.C.C.A. No. 100, the Court of Appeal set out a
non-exhaustive list of factors to be considered in determining the amount of
non-pecuniary damages to award.  That list includes the age of the plaintiff,
the nature of the injury, the severity and duration of the pain, the extent of
disability, the existence of emotional suffering, the loss or impairment of
life, the impairment of relationships, the impairment of physical and mental
abilities, and the loss of lifestyle.

[126]     I have found that Mr. Bhandal suffered moderate
soft tissue injuries to his neck, back and shoulders in the accident that initially
resulted in significant pain and disability, but which had resolved within
about a year, and that he developed occipital neuralgia as a result of the
accident, which causes him ongoing pain in the back of his head and pain and
stiffness in his neck at the base of the skull, to some extent.

[127]     Mr. Bhandal
testified that he was healthy prior to the accident but he acknowledged that he
now believes he has always had some element of a mood disorder.  He has had a
vacillating mood over the years, with highs and lows.  He recalls having
depressive episodes dating back to childhood.  He testified that in the
immediate aftermath of the accident he suffered from very significant pain in
his neck, back, shoulders and jaw as well as frontal headaches but that these
symptoms gradually resolved over about a year.  He also testified that he has
suffered from almost completely debilitating and constant pain in the occipital
region of his skull, as well as stiffness and pain at the top of his neck,
since the accident.  I accept his account of the pain he suffered in the year
following the accident, but for reasons already expressed I find that he has
exaggerated the symptoms associated with the occipital neuralgia.

[128]     Mr. Bhandal
was 35 years old when the accident occurred.  Prior to the accident he was
employed at Crown in a secure job and he had qualified as a real estate agent.  He
testified that he was socially and physically active, played soccer regularly,
participated in kickboxing, and road his mountain bike regularly.  He said he
enjoyed spending time with his family, particularly his young nephews.  He said
he performed outside maintenance that included cutting the grass, cleaning
gutters, and washing windows.  He estimated he spent three to four hours per
week performing household duties.

[129]     Mr. Bhandal
testified that he no longer plays soccer.  He said he tried to ride his bike
but it hurts his head to wear a helmet.  He said he cannot run or kick box
because the impact worsens his head pain.  He can still go for walks and do
yoga.  Mr. Bhandal testified that he can no longer perform outdoor house
maintenance.  Mr. Bhandal testified that he no longer socializes much.  He
said that although his mother does most of the indoor work, when she is away he
has to do some light cleaning such as emptying the dishwasher, cooking and
vacuuming.  He said he breaks the tasks down, with breaks in between, and
compensates by not doing other things like yoga or a walk.

[130]     There was
no evidence expressly contradicting Mr. Bhandal’s evidence of the specific
impact of the injuries on his life.  For example, there was no video
surveillance showing him playing soccer or cleaning the gutters.  However, as a
result of the shortcomings in Mr. Bhandal’s evidence, I do not accept his
account and I find that he has exaggerated.  It is clear that by June 2012 he
was able to participate, to some extent, in the building of the two houses on No. 1
Road, and before that he was able to successfully navigate the subdivision
application through the municipal rezoning process.  While I accept that Mr. Bhandal
continues to suffer from ongoing occipital pain, I was not persuaded that its
frequency and intensity is such as to interfere significantly with his
day-to-day activities, although it may, from time to time, prevent him from
engaging in physical activities and activities requiring significant
concentration.  I also find that it may, from time to time, interfere with his
ability to work as a unitizer operator at Crown or in a job of similar
physicality.

[131]     I accept Mr. Sall’s
evidence that Mr. Bhandal has become more socially withdrawn.  While I
find that his existing mood disorder is likely the most significant cause, I accept
that his lingering head pain has contributed to this to some extent.

[132]     Dr. Mackie’s
prognosis was stated by him to be "extremely guarded".  He explained
at trial that every reasonable treatment had been tried without benefit and in
these circumstances it is his opinion that Mr. Bhandal’s condition is not
likely to resolve.  In his report he stated that "in general terms the
more prolonged the symptoms following injuries the more resistant to complete
recovery".  Dr. Medvedev’s prognosis was much more optimistic; however,
he explained that this was based on the lack of neurological dysfunction.  He acknowledged
that the presence of structural damage to the nerve would be associated with a
greater likelihood of ongoing symptoms.  I have found that Mr. Bhandal is
suffering from occipital neuralgia, which Dr. Mackie explained is
irritation or damage to the occipital nerves.  In the circumstances, I prefer Dr. Mackie’s
prognosis, but I do not accept that the pain is as debilitating as Dr. Mackie
assumed.  Accordingly, I find it is likely that Mr. Bhandal will continue
to suffer from ongoing occipital pain, but of an intensity and frequency that
will not interfere significantly with his day-to-day activities and that there
is a realistic possibility of some improvement.

[133]     Counsel
for Mr. Bhandal and counsel for the defendants have provided me with a
number of cases to assist in determining the appropriate award of non-pecuniary
damages.  Counsel for Mr. Bhandal submits that his authorities support an
award in the range of $100,000 to $150,000.  Counsel for the defendant submits
that his authorities support an award in the range of $50,000 to $90,000.

[134]     The cases
referred to by Mr. Bhandal’s counsel concern plaintiffs who sustained more
serious injuries and whose conditions impacted their lives to a greater extent
than I have found is the case for Mr. Bhandal.  In Ward v. Klaus,
2010 BCSC 1211, it was not challenged that the plaintiff’s severe headaches
left her practically helpless.  Non-pecuniary damages of $150,000 were
awarded.  In Lyn v. Weatherston, 1997 CanLII 2673 (B.C.S.C.), the
plaintiff was found to have suffered debilitating regular headaches, chronic
pain, and also severe emotional difficulties and cognitive deficits as a result
of the accident.  Non-pecuniary damages of $90,000 were awarded.  In Carr v.
Simpson, 2010 BCSC 1511, the court found much more significant injuries
including ongoing soft tissue pain that was unlikely to improve, thoracic
outlet syndrome with a poor prognosis, incapacitating headaches, an injury to
the plaintiff’s hand and wrist that required surgery, an injury to the
plaintiff’s knee that required surgery, low back and hip flexor pain that was
likely permanent, and depression.  Non-pecuniary damages of $100,000 were
awarded.  In Carroll v. Hunter, 2014 BCSC 2193, the court found the
plaintiff to have an abnormally heightened sensitivity to pain and to be
suffering from chronic neck pain caused by soft tissue injuries and also an
injury to the cervical facet joints, and occipital headaches that were
practically constant.  Non-pecuniary damages of $100,000 were awarded.

[135]     Of the
authorities cited by the defendant, Sharifi v. Chaklader, 2012 BCSC 685,
bears the most similarity to this case.  The court in that case had very
serious reservations about the plaintiff’s credibility and concluded that
little weight could be placed upon her evidence.  Damages were assessed on the
basis that she had suffered a soft tissue injury, some neck pain, a left
recurrent shoulder injury, occasional migraine type headaches, stress, anxiety,
fatigue and depression, some of which were ongoing for years after the
accident.  However the court also found she was capable of most activities of
daily living.  Non-pecuniary damages of $50,000 were awarded.

[136]     Awards of
damages in other cases provide a guideline only.  Ultimately, each case turns
on its own facts.  My findings with respect to the injuries suffered by Mr. Bhandal
include ongoing head pain that is more significant than that suffered by the
plaintiff in Sharifi, on my reading of that case.  Considering the
principles discussed in the cases referred to me and the criteria considered in
the assessment of damages in Stapley, I assess Mr. Bhandal’s
non-pecuniary damages at $60,000.

Past Loss of Income
Earning Capacity

[137]     In Smith
v. Knudsen, 2004 BCCA 613, the Court of Appeal confirmed the approach to be
taken in determining whether a plaintiff has established a claim to past loss
of earning capacity.  A plaintiff must prove on a balance of probabilities that
an injury has caused an impairment to his earning capacity that has resulted in
a pecuniary loss.

[138]     A claim for past loss of income earning capacity is
based on 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 para. 30.  A common method of assessing this
value is to project the net income the plaintiff would have earned in the
period between the accident and the trial had the accident not occurred, taking
into account all realistic contingencies, and to award the difference between
that projected net income and the actual net income the plaintiff did earn or
was capable of earning during that period.  Hypothetical events, including what
the plaintiff would have earned in the absence of the accident and what the
plaintiff was capable of earning given the accident, need not be proved on a
balance of probabilities.  When considering hypothetical events, provided the
event was or is a realistic possibility, it will be given weight based on the
likelihood of it occurring: Smith at para. 28 and 29.

[139]     Mr. Bhandal submits that had he not been injured
in the accident he would have remained working full time at Crown and he would
also have worked overtime to the extent that he worked overtime in the year
prior to the accident.  In the year prior to the accident, his gross income
from Crown was $67,658.93.  Based on that amount, Mr. Bhandal says he
would have earned gross income of $262,825.52 in the time from the accident to
the trial.  Mr. Bhandal submits that to this amount should be added
non-wage benefits that Mr. Peever valued at 10.3%.  After deducting income
tax at 19.5%, which, according to Mr. Peever is the average for an
individual earning between $60,000 and $69,999, Mr. Bhandal says he should
be awarded $233,366.72.  Mr. Bhandal submits that there should be no
deduction to account for any negative contingencies such as time spent out of
the workforce by reason of sickness or injury, choice, or unemployment because
any such negative contingencies are offset by the positive contingency that Mr. Bhandal
would have earned additional income as a realtor.

[140]     In my
view, there are two fundamental flaws in Mr. Bhandal’s analysis.

[141]     First, in
my view, there is no realistic possibility that Mr. Bhandal would have
earned income as a realtor while also working full time at Crown.  Given his sporadic
work history during the roughly five years between his immigration to Canada
and the commencement of his employment Crown, and his very limited efforts to
establish a real estate career in the eight months prior to the accident, it is
improbable that he would have succeeded in real estate to any material extent
while also working full time at Crown.  As such, the hypothetical prospect of Mr. Bhandal
earning income from real estate prior to the trial is not a positive contingency
that ought to be taken into account in assessing his past loss of income
earning capacity.

[142]     Second, Mr. Bhandal’s
analysis fails entirely to address the very realistic possibility that he could
have worked, at least in some capacity, had he followed the recommendation of
his physicians that he try to do so.

[143]     I am
satisfied that Mr. Bhandal’s job as a unitizer operator at Crown was a
physical one, even though it was not the most physical job in the plant.  Further,
the plant is large, noisy and full of activity.  Employees must be alert and
attentive at all times.  I am satisfied that, as a result of his injuries, Mr. Bhandal
was incapable of performing that job until at least early 2012, nearly a year
after the accident.  His income-earning capacity was impaired by the injuries
he suffered in the accident until at least that date.

[144]     Dr. Nagle
was strongly recommending that Mr. Bhandal attempt a graduated return to
work in early 2012.  I accept that he was not able to return immediately to his
old job and that a graduated return, commencing with light duties, was
appropriate.  Crown was not able to accommodate light duties at that time and I
find that it was reasonable for Mr. Bhandal to remain on disability
benefits, for some time while waiting for Crown to be able to accommodate a
graduated return to work.  However, when that did not occur within a reasonable
period, he ought to have attempted to obtain alternative employment.  In my
view a reasonable period was six months.  In other words, he ought to have
sought alternative employment by July 2012.

[145]     I do not
give any weight to any of the expert opinions concerning Mr. Bhandal’s
functional abilities.  This includes Mr. Nordin’s opinion that he is not
competitively employable.  This is because all of those opinions were based on Mr. Bhandal’s
subjective reports of pain and other symptoms and, in the case of Mr. Nordin’s
opinion, the questionable vocational test results.  The hypothesis upon which
those opinions rest has been entirely undermined by my findings concerning Mr. Bhandal’s
credibility.

[146]     In my
view, but for the injuries he sustained in the accident, Mr. Bhandal would
have continued to work as a unitizer operator at Crown and very likely would
have worked overtime to the extent he worked overtime in the year prior to the
accident.  In the year prior to the accident, his gross income from Crown was
$67,658.93.  I am satisfied that this is the appropriate starting point in
assessing his damages for past loss of income earning capacity.  Based on that
amount, Mr. Bhandal says he would have earned gross income of $262,825.52
in the time from the accident to the trial.  However, in my view, from this
amount must be deducted an amount to reflect typical negative labor market
contingencies.  Mr. Peever values those contingencies at 19.5%.  After
deducting 19.5%, the total potential gross income is $211,574.55.  I agree
that, in accordance with Mr. Peever’s analysis, to this amount should be
added non-wage benefits valued at 10.3%, for a total of $233,266.73.  An amount
for income tax must then be deducted.  I am satisfied from Mr. Peever’s
report that an appropriate income tax deduction would be approximately 19%.  After
deducting 19% for income tax, the total net income Mr. Bhandal would have
earned in the period between the accident and the trial, had the accident not
occurred, is $188,946.05.  However, in assessing the value of the work he was
unable to perform because of the injury, it is necessary to deduct the income
he was capable of earning during that period.

[147]     It is
difficult to determine what income Mr. Bhandal was capable of earning
because he failed to try to return to work.  For reasons I have already
explained, Mr. Nordin’s vocational assessment is of no value in attempting
to determine Mr. Bhandal’s residual employment capacity.  I do know that in
2012 and 2013 he was capable of navigating the subdivision through the city’s
rezoning process and he was capable, at least to some extent, of overseeing the
construction of the two houses on No. 1 Road.  In my view, this indicates
he had significant earning capacity.

[148]     Applying
the same approach as outlined above in determining the total net income Mr. Bhandal
would have earned in the period between the accident and the end of June 2012, after
which I have found he ought to have attempted to return to work, yields a total
potential net income up to the end of June 2012 of $57,082.58 (61 weeks x
$1,301.12 per week less 19.5% for labour market contingencies plus 10.3% for
non-wage benefits less 19% for income tax).  The difference between that amount
and his total potential net income up to the time of trial is $131,863.47.  That
is the total potential net income he could have earned at Crown between July
2012 and the trial, which is the period during which he ought to have been
attempting to work.  In my view, it is likely that had he attempted to work he
could have done so, but it is difficult, on the evidence I consider reliable,
to assess the likelihood with much precision.  In the circumstances, it is my
view that a deduction of approximately 75% from that amount would appropriately
reflect this contingency.  The mathematical result is $90,048.45 ($57,082.58
plus 25% of $131,863.47).

[149]     This is an
assessment, not purely a mathematical calculation.  In all the circumstances I
consider an award to Mr. Bhandal for past loss of income earning capacity
in the amount of $90,000 to be fair.

Future Loss of
Income Earning Capacity

[150]     To establish a claim for future loss of income earning
capacity, a plaintiff must first prove a real and substantial possibility of a
future event leading to a loss of income, as opposed to a speculative loss: Perren
v. Lalari, 2010 BCCA 140 at para. 32.  The onus on the plaintiff is
not heavy but must nonetheless be met: Kim v. Morier, 2014 BCCA 63 at para. 7.

[151]     If the plaintiff discharges that burden, then the loss
must be assessed, taking into account all realistic positive and negative
contingencies.  The assessment may employ what has been referred to as an "earnings
approach" or a "capital asset approach": Schenker v. Scott,
2014 BCCA 203 at paras. 50-51; Morgan v. Galbraith, 2013 BCCA 305
at para. 53; and Perren at para. 32.

[152]     The earnings approach is generally appropriate where
the loss is more easily measurable, such as where the plaintiff has some
earnings history and where the court can reasonably estimate what his/her
likely future earning capacity will be.  This approach typically involves an
assessment of the plaintiff’s estimated annual income loss multiplied by the
remaining years of work and then discounted to reflect current value, or
alternatively, awarding the plaintiff’s entire annual income for a year or two:
 Pallos v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d)
260 (C.A.) at para. 43; and Gilbert v. Bottle, 2011 BCSC 1389 at para. 233.

[153]     The capital asset approach, which is typically used in
cases where the loss is not as easily measurable, involves consideration of a
number of factors including whether the plaintiff has been rendered less capable overall of earning income from all types
of employment,
is less marketable or attractive as a
potential employee,
has lost the ability to take advantage of
all job opportunities that might otherwise have been open, and is less valuable
to himself as a person capable of earning income in a competitive labour
market: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) at para. 8;
and Morgan at paras. 53 and 56.  As stated recently by Justice
Schultes in Litt v. Guo, 2015 BCSC 2207 at para. 388:

[These factors] must be addressed
in the context of the facts of the case, and the trial judge must make findings
of fact as to the nature and extent of the plaintiff’s loss of capacity and how
that lost me impact on the plaintiff’s ability to earn income: Morris v.
Rose Estate (1996), 23 B.C.L.R. (3d) 256 (C.A.) at para. 24.  In other
words, while the capital asset approach is not the mathematical calculation,
the trial judge must still make findings of fact on which to base the
assessment: Morgan at para. 54.

[154]     Mr. Bhandal
submits that he has established an impairment to his earning capacity.  He
relies on his own testimony concerning the nature and extent of his head pain
as well as the expert opinions of Dr. Nagle, Dr. Mackie and Mr. Nordin
concerning his functional abilities.  He submits that his loss should be
assessed using the earnings approach.  In effect, he says that his loss should
be assessed by multiplying the amount of his gross income earned in the 12
months prior to the accident by the number of years to retirement at either age
62 or 65, discounted only for the contingency that he will live until then, and
adding 10.3% to reflect non-wage benefits.  This would generate a total loss of
future income of approximately $1.5 million.  He submits that an award in
the amount of $1.5 million would be appropriate under this head.

[155]     Mr. Bhandal
submits that it would be inappropriate to consider any other negative
contingencies because his job at Crown was a secure union position and he would
not have left it by choice prior to retirement.  He also submits, in the
alternative, that any negative contingencies would be offset by the positive
contingency that he would have earned income as a realtor in addition to the
income he earned at Crown.

[156]     In my
view, there are several fundamental flaws in Mr. Bhandal’s analysis.

[157]     First, it
depends to a significant extent on the opinion evidence concerning his
functional abilities.  For reasons already expressed, I do not place any weight
on that evidence.  The hypothesis upon which those opinions rest has been
entirely undermined by my findings concerning Mr. Bhandal’s credibility. 
I find that it is very likely Mr. Bhandal could work if he tried.  He has
never tried to return to his old job at Crown and accordingly one can only
speculate as to his prospects for successfully returning to that position.  Further,
and as already noted, in 2012 and 2013 he was capable of navigating the
subdivision of the No. 1 Road property through the city’s rezoning process
and he was capable, at least to some extent, of overseeing the construction of
the two houses on No. 1 Road.  In addition, he has acknowledged that he is
able to work on the computer at least for a few hours a day, provided he takes
regular breaks.

[158]     Second, Mr. Bhandal’s
analysis fails to reflect any negative contingencies because he says he would
not have chosen not to work and he would have earned additional income as a
realtor while also working at Crown.  His assertion that he would not have
chosen not to work is undermined by his sporadic work history and in particular
the fact that he chose not to work for three years after immigrating to Canada.
His assertion that he would have earned income as a realtor while also working
at Crown is undermined by the fact that he made only extremely limited efforts
to develop a real estate business even before the accident and virtually no
efforts after.  His past earning pattern, including his sporadic work history, is
a factor that is appropriately taken into account in assessing his loss of
earning capacity: Vaillancourt v. Molnar Estate, 2002 BCCA 685 at para. 72.

[159]     Third,
this is not a case where the earnings approach is appropriate.  As a result of
my significant concerns about the credibility of Mr. Bhandal’s testimony,
the evidence giving rise to the assessment of future possibilities is too
general and speculative to permit the use of that approach.  Mr. Bhandal’s
situation can be most accurately assessed by viewing the extent of any
impairment of his ability to earn income as a reduction in the value of that
ability as a capital asset.

[160]     The
findings of fact that bear on this issue are that Mr. Bhandal suffers from
occipital neuralgia as a result of the accident, which causes him ongoing pain
in the back of his head and pain and stiffness in his neck at the base of the
skull.  But the frequency and intensity of these symptoms are not such as to
interfere significantly with his day-to-day activities, although they may, from
time to time, prevent him from engaging in physical activities and activities
requiring significant concentration.  They may also, from time to time,
interfere with his ability to work as a unitizer operator at Crown or in a job
of similar physicality.  I find there is a real and substantial possibility
that his ongoing head pain will lead to a loss of income.  However, there is also
a real and substantial possibility the pain will resolve or lessen.

[161]     I am not
satisfied on the evidence before me that Mr. Bhandal’s head pain necessarily
prevents him from returning to his work at Crown, although there is a realistic
possibility it might.  The problem is that without any attempt on his part to
return to work and in light of the shortcomings in his evidence, making
specific findings about his abilities is a somewhat speculative exercise.  On
his own evidence, he is able to do computer work, at least for a few hours a
day; he is able to walk for as much as 45 minutes a day; and he is able to
participate in yoga almost daily.  He has a university degree in marketing and
accounting, and is a licensed realtor.  He has experience in residential home
construction, having overseen the construction of his father’s home on Lindsay
Road before the accident and, at least to some extent, the construction of the
two houses on No. 1 Road after the accident.  All that said, an
application of the Brown factors still leads me to finding that his
future earning capacity as a capital asset has been diminished somewhat.

[162]     There is a
realistic possibility that his ongoing head pain has rendered him less capable
overall from earning income from all types of employment because it may require
him to take more unpaid time off work than would otherwise have been the case. 
This is also a factor that will make him less marketable in comparison to
applicants who do not require any accommodation and, as such, there is a realistic
possibility that he has lost the ability to take advantage of all job
opportunities that might otherwise have been open to him.  In the
circumstances, he has established an entitlement to compensation for those
impairments, but nothing approaching the $1.5 million that he submitted was
appropriate through application of the earnings approach.  In my view, an award
of $150,000 is appropriate under this heading.  This represents $10,000 a year
for 20 years, or approximately to age 60, less $50,000 to account for the
realistic possibility that his ongoing head pain will lessen or resolve.  In my
view, given Mr. Bhandal’s sporadic work history and unreasonable failure
to attempt to return to some form of employment since the accident, it is unlikely
that he would have worked beyond age 60.

Loss of
housekeeping capacity

[163]     A loss of
homemaking award is properly characterized as an award for loss of capacity,
distinct from a cost of future care claim: McTavish v. MacGillivray,
2000 BCCA 164 at para. 63.  An award for loss of homemaking capacity is
intended to reflect the value of the work that would have been done by the
plaintiff but which he or she is incapable of performing due to the injuries
caused by the accident.  It is not dependent upon whether replacement costs are
actually incurred: Westbroek v. Brizuela, 2014 BCCA 48, at paras. 72-78.
However, a cautionary approach is to be taken in assessing damages for loss of
homemaking capacity to ensure the award is commensurate with the loss.

[164]     Mr. Bhandal
is seeking an award of $25,000 under this head.  He submits that he is been
restricted in his ability to perform the outdoor maintenance tasks that he used
to perform and that it is difficult for him to perform inside maintenance,
which he is required to do when his parents are away.  He submits that the loss
of his ability to perform these tasks will likely be permanent.

[165]     In my
view, the reliable evidence does not establish a significant, permanent loss of
ability to perform routine housekeeping tasks in this case.  I do accept that Mr. Bhandal’s
housekeeping capacity was impaired in the year following the accident and that
his ability to perform housekeeping tasks might, from time to time, be impacted
by his ongoing head pain.  In the circumstances he has established an
entitlement to compensation but primarily for his past loss of housekeeping
capacity.  In my view, an award of $3,000 as compensation for the impairment of
his past housekeeping capacity as well as the possibility that his housekeeping
capacity will continue to be impaired, to a limited extent, is fair.

Cost of Future Care

[166]     Mr. Bhandal is entitled to compensation for the
cost of future care based on what is reasonably necessary to restore him to his
pre-accident condition insofar as that is possible.  The award is to be based
on what is reasonably necessary on the medical evidence, to preserve and
promote his mental and physical health: Gignac v. Insurance Corporation of
British Columbia, 2012 BCCA 351 at paras. 29-30.

[167]     The test for assessing an appropriate award for the
cost of future care is an objective one based on the medical evidence.  It is
twofold:  first, there must be a medical justification for the cost; and
second, the claim must be reasonable: Tsalamandris v. McLeod, 2012 BCCA
239 at paras. 62-63.

[168]     Mr. Bhandal seeks compensation for the costs of a
yoga membership and topiramate and diclofenac prescriptions to age 65, as well
as 10 to 20 sessions of psychotherapy to address the exacerbation of his mood
symptoms.  He calculates the total future costs of these items at between
$50,750 and $54,000.

[169]     Dr. Nagle
testified at trial that yoga was probably helpful; however, her testimony fell
short of establishing that it was reasonably necessary to preserve or promote
his health.  Further, it was based on her understanding of Mr. Bhandal’s
condition which depended upon his subjective reporting and which I have
concluded was not credible.  I am not satisfied that there is a medical
justification for the ongoing cost of yoga.

[170]     It was Dr. Mackie’s
view that Mr. Bhandal should continue to try topiramate and the topical
diclofenac for his head pain.  However, at the time of trial Mr. Bhandal had
ceased taking all prescription medication, with the possible exception of the
diclofenac ointment.  He testified that he might try topiramate again in the
future.  He has demonstrated a reluctance to use prescription medication in the
past.  In the circumstances, it would be entirely unreasonable to award him the
cost of these prescription medications to age 65.  In my view, it is likely
that he will use these prescriptions only very sporadically in the future.  The
evidence establishes that the monthly cost of topiramate and diclofenac is
about $80.  In the circumstances, an award of $1,000 for the cost of future prescriptions
is reasonable.

[171]     For the
reasons already expressed, I am not persuaded that the exacerbation of Mr. Bhandal’s
mood disorder was caused by the accident and as such I dismiss his claim for
the future cost of psychotherapy sessions.

Special Damages

[172]     By the end
of the trial, the parties had agreed on special damages of $7,033.27.

Conclusion

[173]     In summary, the damages awarded to Mr. Bhandal
are:

[174]     If the parties are unable to agree on costs, they may arrange
to speak to that issue by contacting the registry.

"WARREN
J."