IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151210

Docket: M143279

Registry:
Vancouver

Between:

Amir
Dzumhur

Plaintiff

And

Fariba
Davoody

Defendant

Before:
The Honourable Mr. Justice N. Kent

Reasons for Judgment

Table of Contents

INTRODUCTION. 4

PLAINTIFF’S TESTIMONY. 4

DEFENDANT’S TESTIMONY. 12

LAY WITNESSES. 13

James Trainor 13

Michael Westrand. 14

Sayed Faizi 15

Salem Causevic. 16

Alma Cunjalo. 17

Darren McLennan. 19

Karl Madsen. 20

Gurch Khrod. 21

Michael Tsitlenok. 22

Artyom Rakhmatulin. 22

Nihad Krupic. 23

Jacqueline Stairs. 24

MEDICAL/EXPERT WITNESSES. 24

Dr. Lisa Caillier 24

Dr. Robin Rickards. 28

Dr. Leslie Cohen. 29

LIABILITY. 31

CAUSATION AND THE ASSESSMENT OF
DAMAGES IN A NEGLIGENCE CASE. 34

CREDIBILITY OF THE PLAINTIFF. 35

FINDINGS AS TO THE PLAINTIFF’S
INJURY, DISABILITY AND THE CONTINGENCY OF FUTURE MEDICAL TREATMENT. 37

NON-PECUNIARY GENERAL DAMAGES. 44

LOSS OF PAST AND FUTURE INCOME
EARNING CAPACITY. 47

Past income loss. 47

Past loss of earning capacity. 47

Future loss of earning capacity. 50

SPECIAL DAMAGES. 61

COST OF FUTURE CARE. 62

SUMMARY. 65

INTRODUCTION

[1]           
This action claims damages for personal injuries sustained in a motor
vehicle accident on June 1, 2012 at the intersection of No. 5 and Bath
Roads in Richmond, B.C.  At that time the plaintiff was driving his van
northbound in the center lane on No. 5 Road when the defendant left the westbound
stop sign at the T-intersection intending to make a left turn south onto No. 5
Road.  The defendant drove into the path of the plaintiff’s oncoming vehicle and
a violent collision ensued.

[2]           
Issues in dispute in this case include both liability and quantum of
damages.

[3]           
For the reasons that follow I find the defendant entirely at fault for
the accident and I award damages to the plaintiff in the following amounts:

PLAINTIFF’S TESTIMONY

[4]           
Mr. Dzumhur is 52 years old and came to Canada as a refugee from
Croatia in 1994.  He lived in Niagara Falls for four months but later in the
year moved with his mother to Vancouver where his younger brother lived.

[5]           
Mr. Dzumhur attended eight years of elementary school followed by
four years of technical training in telecommunications.  Before leaving Bosnia
he was employed as a telephone systems operator.

[6]           
In January 2006, Mr. Dzumhur applied for part-time work at the
Bombay Company store.  He worked in the stock room.  He noticed a need for
delivery services and asked if he might be able to do that work outside his
company hours.  His employer had no objection and started to steer delivery
requests to Mr. Dzumhur.

[7]           
In October 2006, Mr. Dzumhur joined UPS as a part-time driver.  He
continued with his delivery work for the Bombay Company notwithstanding the
employment with UPS.  He kept his own records respecting his deliveries and the
amount of cash earned each year, which he did not declare on his income tax
returns.  In recent years the number of deliveries and income reflected in the
plaintiff’s records, which he testified as being accurate, were:

[8]           
Mr. Dzumhur produced his income tax returns for the years 2008 to
2014 and they were marked as exhibits.  In round numbers, his declared employment
income over the following years was:

[9]           
Mr. Dzumhur’s most recent pay stub for from UPS indicates he has
earned approximately $37,000 thus far in 2015.

[10]       
On the day of the accident, Mr. Dzumhur had dropped his two
children off at school and was on his way to work at the airport when the
collision occurred at approximately 8:30 a.m.  He was driving his Dodge Caravan
north on No. 5 Road in the center of the two northbound lanes.  He estimates
he was travelling at the speed limit.  A light rain had left the road surface
wet.

[11]       
No. 5 Road hosted a fair bit of traffic.  A vehicle in the right
lane ahead of him turned right to go east on Bath Road.  The next thing Mr. Dzumhur
saw was a car right in front of him coming across his lane.  He had earlier noticed
the car at the stop sign but did not actually see it leave the stop sign.  He
attempted to swerve to the left to avoid the car but was not able to.  He says
everything was "so fast" and "sudden".

[12]       
Mr. Dzumhur’s van came to rest on the left curb side of No. 5
Road.  He got out of the vehicle feeling dizzy and disoriented.  He went over
to the other vehicle.  It was driven by a woman but he can no longer recall the
conversation he had with her.

[13]       
The police later arrived and ticketed Mr. Dzumhur for speeding.  He
said he was surprised by the ticket and did not understand how the officer could
give him a ticket without having seen the accident.  The officer told him that
the ticket was based on what the witnesses said had occurred.

[14]       
Mr. Dzumhur disputed the ticket but he heard nothing further and no
hearing has been held.

[15]       
Mr. Dzumhur was able to identify both vehicles from photos taken
after the accident.  The photographs of his van were taken at the scene.  The
photographs of the defendant’s vehicle were taken at a body shop.  His own right
front bumper and right front fender are damaged.  The left front end of his
vehicle sustained no damage.

[16]       
The plaintiff’s vehicle has extensive damage to the entire front end. 
The front bumper is detached; it is actually depicted in front of the plaintiff’s
vehicle photographed at the scene.  The hood is crumpled.

[17]       
Before this accident the plaintiff had not suffered any injuries nor
experienced any major illness.  He attended upon a doctor only rarely for
things like the flu.

[18]       
In the accident, the plaintiff says he suffered injuries to his right
neck, right shoulder and chest, bruises on his left arm, pain in his lower and
middle back, and pain in his right upper thigh and right foot.  He did not go
to work on the day of the accident. He went home with his father-in-law whom he
called to pick him up.  He did not return to work until mid-July 2012.

[19]       
Following the accident, the plaintiff says he suffered from dizziness
and nausea, pain in his neck and right shoulder, pain in his chest as he was
wearing a seatbelt and the airbag was activated, bruises on his left arm, and pain
in the right upper thigh and right foot.  All of these symptoms resolved within
a matter of months, however he continues to experience ongoing pain in his low
back and, for a couple of years, pain in the right buttock radiating down the
right leg.  This was something he was told to be sciatica pain.

[20]       
He was treated by his family doctor, Dr. Cohen, on a few occasions after
the accident and again in the late summer of 2013 when he experienced severe
pain and discomfort as a result of a long drive for the family’s vacation in
Osoyoos.  Dr. Cohen initially prescribed physiotherapy as well as some medication;
however, the plaintiff’s impression was that the medication did not help much.

[21]       
Following Dr. Caillier’s recommendation in late 2013, the plaintiff
underwent 36 therapy sessions with a kinesiologist who taught him various
stretches and exercises designed to improve mobility and functionality.  In the
plaintiff’s opinion, these sessions did not help very much with the low back pain;
however, they did help to resolve the condition of pain radiating from the
right buttock down the right leg.  The latter now only seems to recur when he
drives long distances.

[22]       
The plaintiff thinks that the kinesiology sessions may have made the low
back pain "a little bit better" but the condition is present all the
time.  Activity increases the pain, rather than diminishing it, including all
of the activities he does at work, i.e. sitting, driving, leaning,
lifting, pushing, et cetera.

[23]       
The plaintiff says he cannot perform at work to the same level that he
did before the accident.  Before the accident he was fit, strong and able to
work as long as the hours permitted.  His route involved driving a 5-ton truck
mostly in the Richmond area, working eight to nine hours a day and with
frequent overtime that he never refused.

[24]       
The plaintiff returned to work at UPS a month and a half after the
accident.  He resumed his usual route until early 2015 when the run became
classified as a full-time position, was put out to "bid", and he
found himself bumped by a full-time driver.  He attributes losing the route to
the accident; while he was off work for that one-and-a-half-month period a
full-time driver was assigned who realized that the route was better than his
own run.  That driver therefore started pushing to make the route full time,
notwithstanding the plaintiff’s efforts to convince him otherwise, and the
change did eventually occur in February 2015.

[25]       
Following his return to UPS after the accident, the plaintiff says he
has never missed any work nor refused any overtime offered.  The work on the
5-ton truck was physically challenging but the dimensions of the truck allowed
him to use a power jack for loading and unloading skids.

[26]       
Since losing his run, the plaintiff is obliged to take whatever runs
assigned by the company each day.  Often this involves "shuttle runs"
where he drives some of the smaller vehicles to designated collection points
and transfers packages from other trucks, which he then transports back to base
and unloads.  Because of the smaller dimensions of the vehicle, he is doing a
lot more leaning, kneeling and lifting from cramped positions, something he
finds physically challenging.  He finds himself working a little slower and
sometimes calls on other workers to help him out if they are available.

[27]       
Working his previous route, the plaintiff generally had 40 hours of work
a week even though he was categorized as a part-time employee.  Since February
2015, however, he has been assigned fewer hours, perhaps as much as 30 hours a
week on average but his impression is that the number of hours is actually
diminishing.  He also now finds himself working Saturdays on a regular basis.

[28]       
The plaintiff says UPS had asked him in the past to become a full-time
driver, which would have included more hours with regular overtime (the
overtime is mandatory for full-time drivers).  He had enjoyed the flexibility
of being a part-time driver working during the week on basically a full-time
basis, combined with his delivery business for the Bombay furniture stores, and
so had always declined the idea of going full time.  He says that if for any
reason he ever lost his delivery business, he always had the ability to become
a full-time driver at UPS and this is what he would have done.  Becoming a full-time
driver, however, would mean going to the bottom of the full-time seniority list
and becoming a "swing driver", i.e. filling in on all the
different routes company-wide.  It is, he says, very demanding work which,
because of his injuries, he has come to realize he is no longer able to do.

[29]       
Just a month before trial, the plaintiff says he worked a full-time route
for three consecutive days.  The first day was in North Burnaby and involved
120 stops and pickups over an 11-hour period.  The following day involved trips
back and forth to Chilliwack and the third day again involved over 100 stops in
Burnaby over 10 1/2 hours.  The plaintiff says the work was extremely painful
on his back:  "I did it, but I was broken" afterwards.  It is this
experience, he says, which has made him realize that he is simply not capable
of doing full-time work at UPS.

[30]       
The plaintiff says he has not disclosed his physical difficulties to UPS
management.  He says he is afraid to let his employer know because he fears
they will "cut my hours even more" and that they "don’t want you
if you are injured".

[31]       
The plaintiff’s delivery business has also petered out.  He worked for
both the Granville Street and Richmond Centre stores of the Bombay Company. 
The Richmond store manager was familiar with the plaintiff’s pricing and often made
arrangements directly with the customer.  The managers tended to change more
frequently at the Granville store, however, and they simply gave his phone
number to their customers.  All customers paid the plaintiff cash on delivery. 
Once in a while the Bombay store paid him directly, usually by cheque, if some
sort of store-approved exchange was required, e.g. when goods were defective
or damaged.

[32]       
The Bombay store deliveries involved all kinds of furniture.  The
plaintiff says he had developed his own techniques respecting the loading and
unloading of the products into his van by himself.  Because of his injuries, he
says he stopped deliveries for approximately three months following the
accident but then started up again in September 2012.  He turned down the "heavy
stuff" but even so he occasionally got help from friends as necessary.

[33]       
Following the accident, the plaintiff says he did not get the same
volume of work from the Bombay stores.  He believes they knew he was injured in
the accident and, in particular, that the manager in the Richmond store had
noticed his difficulties and decided not to call so much even though the two of
them had a good relationship.  The Granville store went out of business in
early 2015.

[34]       
The cessation of the delivery work and the change of work assignments at
UPS has resulted in reduced income for the plaintiff and financial difficulties
for his family.  Since February 2015, he says the family has not been earning
enough to cover expenses.  Their townhouse is mortgaged to its full value
($345,000).  Their two credit cards are almost maxed out to their limits
($5,000 and $1,000 respectively).  Their two lines of credit are drawn down to
a total of approximately $12,500.  Car payments are required every two weeks on
his wife’s 2013 Toyota Corolla.  These financial difficulties are contributing
to the plaintiff’s ongoing stress and depressed mood.

[35]       
The plaintiff had not formulated any formal retirement plans before the
accident.  While he is 52 years old, his children are young, aged 10 and 4 at
present, and he hoped they would both go to university.  He says his wife had
expected him to work until age 75 and he agreed that this would likely be
required.  Before the accident, the plaintiff says he "loved to work"
and envisaged no difficulty in working beyond the "usual" retirement
age of 65.  On cross-examination however, he did acknowledge that there are
only two employees at UPS who are in their early 60s and none over the age of
65.

[36]       
The plaintiff is passionate about soccer.  He played competitive soccer throughout
his life.  He currently plays with a team called "Richmond Inter", an
over-40s side in a recreational league.  It is meant to be a less physical "no
slide tackle" game.  There are five or six other Bosnian players on the
team.  He has always played the striker position.

[37]       
When he returned to soccer in 2013 he started slowly, playing only 10 to
15 minutes a game.  He still tries to keep his time under 45 minutes a game but
sometimes, when substitutes are short, he will play longer.  He is tired and
has discomfort in his back when he plays.  The month prior to trial he played
almost a full game and says he was "in trouble" physically.  He says,
"I don’t cry" and "It is my choice to go back to soccer"
notwithstanding the pain.  He believes it will help him get stronger.

[38]       
The plaintiff’s kinesiologist has taught him exercises to strengthen his
core and abdomen without hurting his back.  He does these exercises at home
regularly.  He uses a mat and Swiss ball as well as a balance machine.  He does
not lift weights but uses stretch bands for his chest, arm and leg exercises.

[39]       
Before the accident the plaintiff says he was "quite a good husband"
and made a point of helping his wife and "doing my part" in terms of
assistance with household chores such as vacuuming and washing the dishes. 
Before the accident they were a very social couple, entertaining frequently. 
Nowadays they do not entertain as frequently.  He finds it very difficult to
help her physically.  Vacuuming is "definitely uncomfortable".

[40]       
Before the accident the plaintiff described himself as being very open,
outgoing, social and "never depressed".  He says it is the opposite
today.  He is a different person.  He is "in trouble", with both
financial and physical difficulties.  He stated tearfully that he was "trying
to be strong" but that it was "very difficult".

[41]       
His relationship with his wife has become different since the accident. He
becomes irritated more quickly, they argue a lot more, but he stresses that he
is not "nasty" and that he "still loves her deeply".

[42]       
The plaintiff is very close to his father who is now 87 years old.  His
mother died in 2006 and his father lived by himself for a number of years
before becoming sick and moving into a care home in 2011.  His father needed
help moving up and down stairs. The plaintiff brought him over to the family
home three to four times a week before the accident.  This continued after the
accident but the frequency declined as it became more difficult for the
plaintiff to assist his father moving up and down stairs.  His father is now
wheelchair bound and no longer comes to the family home, but the plaintiff
visits him at least once a week.

DEFENDANT’S TESTIMONY

[43]       
Ms. Davoody is 29 years old and is currently a full-time student at
Douglas College earning a bachelor’s degree in social work.  She lives in
Vancouver but at the time of the accident was living on Bath Road, Richmond,
with her mother and brother.

[44]       
At the time of the accident, Ms. Davoody was driving to the library
from her home.  She stopped at the stop sign at the intersection of Bath Road
and No. 5 Road.  Her intention was to turn left to proceed south on No. 5
Road and she turned on her left-turn signal.

[45]       
Ms. Davoody says she was stopped at the stop sign for as long as a
minute.  This was because there was a lot of traffic that morning and she
remembers at least five cars coming from the left, i.e. going north.

[46]       
There was a van heading north in the curb lane of No. 5 Road, which
signalled to make a right turn onto Bath Road.  Ms. Davoody made sure that
the van was not intending to go straight through the intersection before she
started to creep out into the intersection to make her turn.  She says she saw
the plaintiff’s van as he was "the next person behind the van turning left". 
He had already passed the intersection of No. 5 Road and Greenland Drive
some distance to the south but she was not sure how far past that intersection
he was.  She assumed that he was driving at regular speed.

[47]       
Ms. Davoody stated twice that when she started her turn she saw the
plaintiff’s van "six to eight car lengths away".  As she was crossing
the two lanes for northbound traffic she "saw the plaintiff coming into me"
and they collided.  Her impression was that he was "going fairly fast",
over the speed limit, because he "came out of nowhere" and "I
didn’t see him".

[48]       
Ms. Davoody acknowledged that she had been given a ticket by the
police officers who attended the scene for "failure to yield".  She
said she disputed the ticket, but heard nothing further.

[49]       
Ms. Davoody says she was injured in the accident but acknowledged
that she did not issue any lawsuit against the plaintiff.  She said she "couldn’t
afford the legal fees".

LAY WITNESSES

James Trainor

[50]       
Mr. Trainor was a witness with a bird’s-eye view of the accident.  He
lived with his roommate, Michael Westrand, in a second-floor apartment located
on the northeast corner of Bath Road and No. 5 Road in Richmond.  His
apartment had an L‑shaped balcony facing south on Bath Road and east on No. 5
Road.  He was standing at the corner of his balcony, drinking coffee, having a
smoke, and watching the traffic.

[51]       
Mr. Trainor saw the defendant’s Honda halt at the stop sign on Bath
Road at the intersection with No. 5 Road.  The latter has two lanes
northbound and two lanes southbound. He noticed a vehicle northbound on No. 5
Road turn right to proceed west on Bath Road.  At approximately the same time,
the Honda left the stop sign and travelled across the two northbound lanes
evidently intending to make a left turn.  Mr. Trainor had the impression
that the defendant accelerated quite sharply away from the stop sign.  The Honda
barely made it into the left center lane of the northbound lanes when she was
struck by the plaintiff’s van.  In his opinion the defendant simply drove right
into the path of the plaintiff and the latter could do nothing to avoid the
impact.

[52]       
The damage to both vehicles was substantial, particularly to the Honda.  His
assessment was that the van was travelling at "regular speed",
essentially at the same speed as the other vehicles on No. 5 Road, perhaps
10 kilometres over the posted speed limit.

[53]       
Mr. Trainor immediately went downstairs to the scene of the
accident.  He spoke with the driver of the van who was getting out of his
vehicle.  He was in a rather panicked state, repeating several times, "Oh
my God!  Why did she do that?".

[54]       
Mr. Trainor attempted to speak to the defendant as well but she did
not say anything.  A little later another vehicle pulled up behind her and a
person whom Mr. Trainor assumed was her husband or boyfriend instructed
her not to say anything.

[55]       
The police arrived within approximately 30 minutes.  Mr. Trainor
identified himself to the police officer as a witness to the accident but he
was brushed off and no statement was taken.  The police officer said he had
already spoken to the two drivers.

Michael Westrand

[56]       
Mr. Westrand was also on the balcony with Mr. Trainor at the
time of the accident.  However, his back was to the traffic as he was talking
to Mr. Trainor. He turned around only one or two seconds before the impact
actually occurred.

[57]       
Mr. Westrand says he just caught sight of the defendant’s vehicle
leaving the stop sign. He saw the van trying to veer left but nonetheless
striking the Honda as it crossed in front of the van.

[58]       
He also went to the scene of the accident with Mr. Trainor.  He did
not speak with the woman who was driving the Honda nor did he speak to the
police after they arrived.

[59]       
He did not have enough time to assess the speed at which the van was
travelling.

Sayed Faizi

[60]       
Mr. Faizi is the manager of the Bombay Company store in Richmond
Centre.  He has worked at the store since 2003 and has been manager since 2007.
He met the plaintiff in 2005 when the latter was working part time as a
salesman and stock person at the Richmond store.

[61]       
Mr. Faizi confirmed that in addition to his part-time work at the
store, the plaintiff started making deliveries for Bombay Company customers in
2005 or 2006.  The transaction was directly between the customer and the plaintiff
but the store usually called the plaintiff to determine the charge for the trip
in order to inform the customer, and if the customer was satisfied with the
price, deal directly with the customer on the details.

[62]       
The deliveries were made outside of the plaintiff’s scheduled work
hours.  He used his own van.  He received no payment for the deliveries from
Bombay Company.

[63]       
Mr. Faizi believes the plaintiff also made deliveries for the
Granville store.  He has no information as to the delivery work at that
location.

[64]       
Mr. Faizi confirmed that after the plaintiff was involved in his
motor vehicle accident, he stopped delivery work at the store for a period.  The
plaintiff advised him he was unable to do the work because of the accident, so Mr. Faizi
found someone else to make the deliveries.  He is still using this replacement
delivery worker at the present time.  He stated he would have continued using the
plaintiff for the delivery work if he had been able to carry on with those
tasks after the accident.

[65]       
The plaintiff stopped working at the Richmond Bombay Company store in
2009 or 2010 when he started to work for UPS.  He continued his delivery work at
the Bombay Company Granville store after that time, however.

Salem Causevic

[66]       
Mr. Causevic is a 44-year-old information technology specialist who
works for Telus Communications.  He has known the plaintiff for approximately
20 years.  Both are members of the Bosnian community and Mr. Causevic’s
wife used to live in the same apartment building as the plaintiff, his brother
and his parents.

[67]       
Mr. Causevic said he saw the plaintiff at least once a week in the
years before the accident, sometimes three or more times a week.  They
frequently interacted at various Bosnian community events and they also skied
and vacationed together.

[68]       
Mr. Causevic described the plaintiff as an avid soccer player who often
played in various over-30 and over-40 leagues.  He was in very good shape and
physically active.

[69]       
Mr. Causevic saw the plaintiff a couple days after the accident.  He
was "in bad shape", limping, and in obvious pain and distress.  The
plaintiff has never fully recovered from the injuries.  Mr. Causevic says
he still sees the plaintiff limping on almost every occasion they meet and he obviously
has some restrictions sitting, getting to his feet, getting out of the car and
so on.

[70]       
Before the accident, Mr. Causevic saw the plaintiff as stable,
calm, approachable, and with a large circle of friends.  At one point the
plaintiff was president of the Bosnian Community Association.  Following the
accident, he has become less outgoing, even rude and abrupt on occasions.  He
has cut back his social interactions with both the community and his friends,
and Mr. Causevic has noted the apparent development of quite a bit of
conflict between the plaintiff and his wife.

[71]       
Mr. Causevic confirmed that the plaintiff has attempted to return
to soccer since the accident.  He has seen him play a few times and the
plaintiff pretty obviously has problems with his leg.  He plays less than half
a game, and then spends time on the sidelines stretching and massaging his leg.
He used to be an impressive striker, scoring lots of goals, but now he no
longer scores nor does he tackle.

[72]       
Mr. Causevic compared the vacations the two families had taken
together in Osoyoos in 2011 and 2013.  On the first occasion the plaintiff got
up early in the morning and go for a lengthy run around the lake from his hotel
to Mr. Causevic’s camping site, and then back again (approximately 10 kilometres).
In 2013 the plaintiff was in tremendous pain because of the driving and while
the families were at the beach together, the plaintiff was often receiving
physiotherapy treatment in town.

[73]       
Mr. Causevic confirmed that he assisted the plaintiff with some of
his Bombay Company deliveries from time to time.  He can only recall one such
instance before the accident but a number of such occasions following the
accident.  The assistance was with the heavier or more awkward pieces of
furniture such as beds, and sets of drawers.

Alma Cunjalo

[74]       
Ms. Cunjalo is the plaintiff’s wife.  She is 35 years old.  They
met in Bosnia in 1998 and were married on June 8, 2002.

[75]       
Ms. Cunjalo has a bachelor’s degree in biology from UBC.  She works
full time as a lab technologist.  Her salary is approximately $50,000 per
annum.

[76]       
The couple have two daughters, 10-year-old Selma and four-year-old Emina. 
The latter was nine months at the time of the accident.

[77]       
Ms. Cunjalo described her husband as a positive, happy and social
person who enjoyed sports, particularly soccer, and had a wide circle of
friends.  Following the accident she says that because of his persistent pain
and resulting physical limitations, he has become much easier to anger, "stressed
out", and much less social and talkative.  Whereas before the accident, the
couple never fought, she says they now fight a lot and she believes he is "taking
out" his pain on her and the two children.  Sexual relations have become
much less frequent.

[78]       
Before the accident the plaintiff had no problems sleeping.  Nowadays he
tosses and turns, groans, wakes up during the night, and sometimes sleeps in a
different bedroom to avoid disturbing her.

[79]       
Before the accident, the plaintiff did a lot of the chores around the
house.  While cooking was generally her responsibility, he usually did the
dishes, undertook all of the vacuuming and cleaning the bathrooms.  Since the
accident, he has not been able to do the chores in the same fashion.  It is
clear to her that he does want to help but she sees him in pain and so she
relieves him of the tasks and does it herself.

[80]       
Ms. Cunjalo confirmed that the plaintiff was off work as a result
of the accident for approximately a month and a half.  Thereafter, he resumed
work at UPS but things have been very different for him.  He experiences a lot
of pain, takes pain killers, and is generally exhausted when he comes home. 
Things appear to have become particularly hard for him in the last six months
when his duties at UPS were changed from a route using a large truck to other
routes using different vehicles.

[81]       
Ms. Cunjalo believes the accident has affected her husband’s
self-esteem a great deal.  He comes from a traditional background with the
expectation that men are the primary providers in the family and generally
stoic, macho individuals.  He was a hard worker and a passionate, skilful
soccer player.  Family was very important and the plaintiff brought his father
over to the house three times a week for dinner and helped him climb the stairs
in their three-level townhouse as necessary.  Since the accident, although the
plaintiff is trying to tough it out, he cannot do the same activities as
before; he can no longer help his father up the stairs and visits to their home
have stopped entirely.  While he still plays soccer, he is far less aggressive,
no longer tackles, and plays for much shorter periods.  He keeps playing
despite the pain.

[82]       
Ms. Cunjalo also believes the plaintiff’s injuries affected his
relationship with his younger daughter.  She says he was unable to lift, hold
and carry his daughter.  She says the younger daughter always wants her mother
and the relationship with her father is completely different from his
relationship with the eldest daughter.  She attributes all of this to the
accident.

Darren McLennan

[83]       
Mr. McLennan was called as a witness for the defence.  He is a
director at BC Housing but was called to testify in his capacity as
player-coach of a team in the Richmond soccer league.

[84]       
Mr. McLennan met the plaintiff in 2013.  The plaintiff and some
other Bosnian soccer players came out for the conclusion of the September-March
season and the plaintiff signed up to play for the team in the summer season of
2014.  It is an over 40 "old-timers" league. The season starts in
April and concludes towards the end of August.  He also played for the 2014-15
winter season.

[85]       
Even though the plaintiff is somewhat older than many of the other
players, Mr. McLennan described him as being very skilled and athletic.  The
plaintiff plays as a "striker" and because of his talent was very
much Mr. McLennan’s "go-to man".

[86]       
The over 40 league is supposed to be a "no slide tackle"
game.  However, there is a fair bit of contact and even the occasional fight.

[87]       
The plaintiff showed up for most of the team games and got "his
share" of playing time.  A regular substitution of players takes place and
all players, including the strikers, rotate on and off the field as necessary.

[88]       
Mr. McLennan was not asked nor did he volunteer any information
about whether the plaintiff displayed any obvious signs of injury or pain when
playing soccer.

Karl Madsen

[89]       
Mr. Madsen is the vice president of operations for UPS at the
Vancouver airport location.  The workforce comprises both full-time and
part-time drivers.  It is a unionized work place and seniority plays a
significant role on route allocation.  There are 117 full-time drivers on the
payroll and 30% have been with UPS for more than 10 years.  There are 80
full-time routes, although 20% of the drivers are off on any given day because
of vacations, sickness and the like.

[90]       
There are also 17 part-time drivers and also shuttle runs between
pick-up points in the airport.

[91]       
Until recently, the plaintiff had been allocated the "Richmond #5"
route.  It involved driving a five-ton truck in a fairly tight geographical
area within Richmond and Vancouver.  There were three to six deliveries in the
morning and six to 10 pickups in the afternoon.  Even though his was a
part-time position the plaintiff was essentially working full time, five days a
week, seven and a half to eight and a half hours a day.

[92]       
In February of this year the #5 run became classified as a full-time
route and required a full-time driver.  Mr. Madsen approached the
plaintiff and asked him if he wished to become a full-time driver.  He did so
because the plaintiff was essentially losing the route he’d had the previous
five years.  As a full-time driver he would go to the bottom of the full-time
drivers’ seniority list and he likely would have been assigned a different
route altogether.

[93]       
The plaintiff declined the offer.  He advised Mr. Madsen he "didn’t
think he could do the job physically".  Mr. Madsen did not inquire
further.  In his experience the plaintiff had never complained of any
difficulties doing the work and had never asked for help as far as he knew.  If
the plaintiff had accepted the offer of a full-time position, Mr. Madsen
says he would have awarded it to him.

[94]       
The plaintiff has continued as a part-time driver with UPS.  Part-time
drivers get whatever is assigned to them for the day.  The routes will change
frequently.  Full-time drivers are guaranteed eight hours of work a day and
often as long as nine to 12 hours.  Part-timers, as the name suggests, get fewer
hours of work.

Gurch Khrod

[95]       
Mr. Khrod is the human resource representative in BC for UPS.  He
is the individual who signed a Certificate of Earnings (marked as Exhibit 6)
following the accident in support of the plaintiff’s application for benefits
from ICBC.  That certificate indicates that the plaintiff has been employed
with UPS since October 2006, that his gross earnings in the 12 months before
the accident were approximately $40,000 and that his average work hours per
week was 40.25 at a rate of $19.98 an hour.  The overtime rate earned by the
plaintiff at the time was $29.97 and his remuneration also included 6% holiday
pay.

[96]       
The plaintiff was off work for 30 days following the accident covering
the period June 1, 2012 to July 16, 2012.

[97]       
A new collective agreement was recently negotiated with the UPS
workforce.  Both full-time and part-time workers receive an extended health
plan as well as coverage for BC Medicare premiums, all paid 100% by the
Company.  Part-time rates currently top out at $21.88 gross in comparison with
the $27.64 paid to full-time workers i.e. this is approximately a 30%
difference.  Holiday pay is determined by the length of employment and ranges
from 4.5% for those in the one to five year band to a maximum of 12.5% for
employees with 25 years or more experience.

[98]       
The plaintiff was entitled to apply to become a full-time driver
following his first three months on the job.  However, he never applied.  Mr. Khrod
acknowledged that some part-time drivers eligible to become full time have not
applied as a matter of personal choice.

[99]       
UPS drivers are paid weekly, every Friday by way of direct deposit.  In
the month before the accident, May 2012, the plaintiff worked 39.67, 45.65,
39.65 and 31.83 hours respectively for the four weeks in question.  Overtime is
paid if a driver works more than eight hours on any given day or more than 40
hours in any given week.

Michael Tsitlenok

[100]     Mr. Tsitlenok
has been a part-time driver for UPS for three and a half years.  He met the
plaintiff two years ago when he was driving a five-ton truck.  For the last few
months the plaintiff has been driving other vehicles and Mr. Tsitlenok sees
him at the depot about 5:00 p.m. when the trucks return to home site.

[101]     Mr. Tsitlenok
testified that over the last few months he has seen the plaintiff unloading his
truck on many occasions.  He has seen the plaintiff holding his back and
frequently taking a rest during the procedure.  He has had difficulty keeping
up the pace on many occasions and Mr. Tsitlenok, as well as well as
others, has helped him quite a few times.

Artyom Rakhmatulin

[102]     Mr. Rakhmatulin
met the plaintiff over five years ago when he was hired at UPS.  He has been a
full-time driver since January 2010.  He says that the plaintiff helped them a
great deal following his initial on-the-job training.  Before the accident the
plaintiff never asked for help and Mr. Rakhmatulin never saw him in any
physical difficulty.  He is however "very different now".

[103]     Mr. Rakhmatulin
says the plaintiff has "completely changed".  He watches the
plaintiff’s face when he is moving around and can see he is in pain.  He is
much slower and often asks for help.  Mr. Rakhmatulin says he can see the
plaintiff suffering and if he has spare time, he will help the plaintiff with
lifting the "heavy stuff".

[104]     Mr. Rakhmatulin
says the plaintiff used to be a jovial and joking storyteller.  However the
plaintiff’s mood has changed and he is now much less pleasant and outgoing.

Nihad Krupic

[105]     Mr. Krupic
is 54 years old and immigrated to Canada from Bosnia in 1994.  He is a general
contractor who owns a small business.  He has known the plaintiff for many
years.

[106]     Mr. Krupic
was a professional soccer player in both Bosnia and Slovenia before coming to
Canada. Since his arrival, he has continued to play soccer at a very high
level, including coaching and playing in the "open" division of non-professional
soccer leagues.

[107]     Mr. Krupic
sees the plaintiff quite frequently, at least four to five times per month.  He
knows the plaintiff’s wife and daughters.

[108]     While Mr. Krupic
does not play soccer on the plaintiff’s team, he played various tournaments from
2013 to 2015 on teams assembled by the plaintiff.

[109]     In an
April 2013 over-40 tournament in Squamish, the plaintiff wore a jersey but
played only 35 to 40 minutes the entire tournament (roughly 5 to 7 minutes a
game).  According to Mr. Krupic, the plaintiff was in obvious pain and
could not play in any competitive way.

[110]     In the
2015 Squamish tournament, Mr. Krupic says the plaintiff played roughly the
same amount of limited time.  He was still in obvious pain, frequently holding
his lower back.  He avoided tackles.  According to Mr. Krupic the
plaintiff just "can’t play [competitively] anymore".

[111]     Before the
accident, Mr. Krupic had never known the plaintiff to have any significant
injuries.  He described the plaintiff as "very disciplined", someone
who did not smoke or drink and who was very competitive and very talented at
soccer.  The plaintiff, he says, was in "excellent shape", happy,
cheerful, and hard-working.

[112]     Following
the accident, Mr. Krupic says he has seen a "big change" and
that the plaintiff is "not the same man".  He described the plaintiff
as formerly being a "patient" person who liked to listen but now
seems to have lost focus and his "mental status has changed".  The
plaintiff is a "very proud man" who has not been able to maintain his
business and who appears to be under big pressure.

[113]     Mr. Krupic
says he has extensive experience as a player and coach at the highest levels in
soccer and he knows when a person is having physical or mental issues.  He has
seen the plaintiff limping off the playing field in obvious pain.  To Mr. Krupic,
the plaintiff’s physical problems are clear and significant.

Jacqueline Stairs

[114]     Ms. Stairs
lives at 3331 No. 5 Road, just south of the intersection with Bath Road.  She
left her house at 8:30 that morning and was walking north on No. 5 Road
heading to work.

[115]     Ms. Stairs
says that something made her look right, over her shoulder, possibly a honking
horn.  She noticed the defendant’s Honda Accord motor vehicle coming across the
southbound lanes intending to turn left.  She saw the plaintiff’s van when it
was two to three car lengths away.  She was an eyewitness to the collision.

[116]     Ms. Stairs’
impression was that the van was speeding.  She acknowledged on
cross-examination, however, that she only had a couple of seconds’ observation
to get that impression.

MEDICAL/EXPERT WITNESSES

Dr. Lisa Caillier

[117]     Dr. Caillier
is a physiatrist, specializing in physical medicine and rehabilitation.  This
specialty involves five years of post-medical degree training and certification
through the Royal College of Physicians and Surgeons of Canada.  The specialty
has two particular areas of expertise;  the assessment, diagnosis and treatment
of musculoskeletal problems and secondly, rehabilitation of resulting
impairments and disabilities.

[118]     Dr. Caillier
is not the plaintiff’s treating physician.  At the request of plaintiff’s
counsel, she undertook "independent medical evaluations" of the
plaintiff on November 29, 2013 and June 2, 2015, thereafter preparing reports
on those evaluations dated December 30, 2013 and June 15, 2015 respectively.

[119]     At the
request of defence counsel, the first two reports of Dr. Caillier along
with her file materials were reviewed by Dr. Robin Rickards, an orthopedic
surgeon who currently focuses on non-surgical orthopedic care and chronic pain
management.  Dr. Rickards prepared a report dated August 31, 2015 criticizing
Dr. Caillier’s diagnosis of chronic mechanical back pain and particularly
her prognosis that the plaintiff was unlikely to become pain-free and would
continue to have pain into the future.  Dr. Rickards was particularly
critical of Dr. Caillier’s failure to identify and recommend two treatment
methodologies which, when properly performed, often provide full and complete
relief of mechanical back pain, namely MBBs and RFR.

[120]     Dr. Caillier
received Dr. Rickards’ report and drafted a supplemental report dated
September 30, 2015.  In that report she reviewed her clinical experience with
these procedures and reiterated her opinion that the plaintiff was unlikely to
become either pain-free or limitation/restriction-free in the future.

[121]     In her
first report dated December 30, 2013, Dr. Caillier describes the plaintiff’s
various symptoms from accident which had since resolved.  They included
abrasions on the left hand, blunt trauma and bruising to the knees, headaches
and dizziness, tinnitus (ringing in the ears), and soft tissue injury to the
neck and upper back.  She also diagnosed ongoing symptomology including (1)
soft tissue musculoligamentous injury/mechanical low back pain, (2) right
piriformis syndrome (right gluteal muscle pressing against the sciatic nerve
causing intermittent pain radiating down the right leg and into the foot), (3)
sleep disruption, and (4) emotional and psychological symptoms (depressed
mood).  In her opinion, all of these conditions were caused by the motor
vehicle accident.  However, she also opined that successful participation in an
active rehabilitation program including massage and physiotherapy and possibly
trigger-point injections could result in positive responses that might resolve
all of the symptomology without future limitation, restriction or disability.

[122]     Dr. Caillier
evaluated the plaintiff for the second time one and a half years later in early
June 2015.  In the interim the plaintiff participated in an active
rehabilitation program consisting of 35 one-to-one sessions with a
kinesiologist.  By that time the right piriformis syndrome had resolved,
however, the low back pain symptomology had only marginally improved.  Dr. Caillier
observed that the plaintiff had not responded to the active rehabilitation
program as well as she had anticipated.  Given the chronicity of his low back pain
and the lack of significant benefit from the intervening active rehabilitation
program, her opinion was that:

·      
the soft tissue and mechanical low back pain will likely
continue, although improvements in physical conditioning and participation in
an ongoing and life-long exercise program might assist;

·      
even with an ongoing and life-long exercise program, he will
still have pain and symptomatic flair-ups of pain dependent upon activities;

·      
heavier activities or activities requiring repetitive bending or
sustained posturing increase the plaintiff’s susceptibility and vulnerability
to worsening of pain;

·      
the plaintiff’s ability to return to his own business of weekend
furniture delivery is poor and such a return is unlikely;

·      
the plaintiff has reduced durability and his ability to continue
with his current position as a UPS driver, involving heavier lifting and
carrying is questionable. He may have to look for a more sedentary type of
employment in the future;

·      
while he is capable of continuing activities according to pain
level and tolerance, he is unlikely to return to his full scope of pre-MVA
level of functioning;

·      
while sleep disruption has improved, this is a condition
secondary to his lower back problems and will likely continue to be an issue;
and

·      
since his depressed mood was secondary to his pain and reduced
level of functioning, he will likely continue to experience ongoing emotional
and psychological symptoms.

[123]     Dr. Caillier
recommended the plaintiff have exercise equipment in his home as well as access
to a gym environment.  In her opinion, a life-long commitment to exercise is
important to properly managing of all his symptoms, particularly the low back
pain.  She also recommended a trial of an antidepressant medication, Cymbalta,
which might also be beneficial for the management of the lower back pain.

[124]     Dr. Caillier
persisted in her prognosis of continued low back pain even following challenges
from Dr. Rickards’ recommendations for treatment using MBBs and a
rhizotomy.  She stated that the branch blocks are a diagnostic tool to identify
the level of lumbar facet joints generating the lower back pain.  They provide
only short-term benefit to pain management.  The rhizotomy can improve
mechanical lower back pain emanating from the facet joints but it is unlikely
to impact soft tissue pain or pain from other spine conditions such as an
annular tear.  She emphasized that even though such procedures might prove
beneficial in terms of pain reduction, in her extensive clinical experience,
none of the patients she referred for such procedures over the past five to six
years have become pain-free.  She does not think these treatments will eliminate
the plaintiff’s pain in the long term or will permit him to return to his
pre-MVA level of functioning. She expects that his low back pain will continue and
negatively impact both his work and his recreational activities.

[125]     On
cross-examination Dr. Caillier stated she was "certainly in agreement"
with the plaintiff "trying" the MBB and RFR procedures towards reducing
his low back pain symptomology and improving his functionality.  She also
agreed the plaintiff should undergo MRI imaging to ascertain whether there was
in fact an annular tear which could then be treated by an epidural steroid injection. 
Similarly, she agreed that the Cymbalta medication would be another pain
management tool that may have a beneficial impact on the plaintiff’s mood.  She
stressed, however, that these recommended procedures and medication would have
to be prescribed by the plaintiff’s family doctor and not herself since she was
not the plaintiff’s treating physician.

Dr. Robin Rickards

[126]     Dr. Rickards
is an orthopedic surgeon whose practice is currently focused on non-surgical
orthopedic care and chronic pain management.  The plaintiff made no objection
to his qualifications to express opinions on the assessment, diagnosis and
treatment of back pain.

[127]     Dr. Rickards’
practice in general orthopedic surgery includes 10 years of surgical spine
intervention.  He undertook special training in chronic pain management at the
Jim Pattison Outpatient Care and Surgery Centre in Surrey BC, which included MBBs,
rhizotomies and epidural steroid injections.  He is the owner-operator of the
Langley Surgical Centre in Langley, BC, and unlike Dr. Caillier, has
personally performed a large number of MBB and RFR procedures.

[128]     Notably, Dr. Rickards
himself underwent these procedures at the age of 58 for his own problems with
low back pain.  The procedures were successful and likely contribute to his
enthusiastic support for their use on patients such as the plaintiff.

[129]     Dr. Rickards
did not undertake any physical examination of the plaintiff.  His assessment
and report were based on a review of the plaintiff’s various medical records,
including Dr. Caillier’s reports and notes as well as the clinical records
of the plaintiff’s family physician, Dr. Cohen.

[130]     Dr. Rickards
accepts Dr. Caillier’s diagnosis of the plaintiff’s low back pain
condition.  He agrees with her recommendation that the plaintiff should continue
with a muscle strengthening and exercise program to help alleviate symptoms. 
However, he completely disagrees with Dr. Caillier’s prognosis that the
plaintiff will suffer from chronic pain preventing him from continuing his work
to age 65 and which will also interfere with his recreational activities. 
Rather, in his opinion, if the plaintiff underwent the MBB and RFR procedures,
the plaintiff would likely experience a full and complete recovery and see a
return to his pre-MVA status including his work and recreational activities.

[131]     MBBs
involve injection of a local anaesthetic under x-ray guidance to temporarily
freeze the nerve affecting the involved facet joints.  If substantial pain
relief occurs, a rhizotomy is indicated.  The latter procedure involves
insertion of needle-like electrodes in the base of the nerves of the involved
facet joints and destroying these nerves using controlled heat, removing the
sensory input from the involved facet joints.

[132]     According
to Dr. Rickards, the success rate is extremely high for full and complete
pain relief with these procedures when properly performed on appropriately
selected patients.  It has been proved by many independent studies and reflects
the experience of his own patients.  While patients who are in their 80s and
have arthritis often require repeat treatment within one or two years, younger
patients will often require no further treatment at all.

Dr. Leslie Cohen

[133]     Dr. Cohen
was not called as an expert witness by either party.  Rather, his attendance at
the trial was pursuant to a subpoena issued by the defendant.  He identified
and reviewed his clinical records respecting the plaintiff’s treatment and
those records were entered into evidence.

[134]     Dr. Cohen
first met the plaintiff on the day of the accident in June 2012.  He saw him
again on June 6, 15 and 29, 2012 as well as July 5, 2012.  He next saw the
plaintiff on September 27, 2013 and has not seen him since.

[135]     Dr. Cohen’s
clinical records are difficult to understand.  Also, he had no present memory
of the plaintiff’s attendances at his office and his testimony consisted of
interpreting his notes respecting same.

[136]     The June 1
notations reflect a physical examination at which Dr. Cohen noted pain in
the lower back, neck, right shoulder, right knee and right arm.  The plaintiff
was prescribed medication and advised to remain off work.

[137]     On June 6 Dr. Cohen
noted ongoing pain and no improvement.  On June 15 he noted that the plaintiff
had started physiotherapy treatments and was feeling a little bit better.  On
June 29, he noted the plaintiff was still undergoing physiotherapy.  He also
noted pain in the leg and feet.

[138]     On July 5,
2012 Dr. Cohen noted that the plaintiff was continuing with physiotherapy
and felt he was improving.  He still had tenderness and decreased range of
motion in the back.  The plaintiff was able to do squats but they triggered
back pain.  He recommended continued physiotherapy and a return to work by July
10, 2012.

[139]     On
September 27, 2013, Dr. Cohen noted the plaintiff’s reported acute onset
of pain in the right buttock and down the right leg during a drive to Osoyoos
the previous month.  The plaintiff stopped numerous times during the trip and
although he received massage treatment in Osoyoos, he had continued to
experience ongoing discomfort both during the trip back to Vancouver and
since.  On physical examination Dr. Cohen noted a lack of flexibility in
the back along with stiffness and tenderness in both the back and right buttock
and thigh area.  He diagnosed a "sprain" and prescribed medication
and physiotherapy.

LIABILITY

[140]     The law is
well-settled that in order to succeed with a claim for personal injuries and
damages arising from a motor vehicle accident, the plaintiff must prove on a
balance of probabilities the following constituent elements comprising the tort
of negligence:

i.          the
defendant owed the plaintiff a duty of care (to avoid acts or omissions which
might be reasonably foreseeable to cause injury to the latter);

ii.         the
defendant’s acts or omissions breached the standard of care applicable to that
duty;

iii.         the
plaintiff suffered loss or damage of a sort that is recognized and compensable
in law; and

iv.        the
defendant’s breach was causative, in both fact and law, of the plaintiff’s loss
or damage.

(See Hill v.
Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R.
129 at para. 90; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27,
[2008] 2 S.C.R. 114 at para. 3; Ediger v. Johnston, 2013 SCC 18,
[2013] 2 S.C.R. 98 at para. 24.)

[141]     In order
to "perfect" any cause of action for the tort of negligence, the
defendant’s negligent conduct must cause the plaintiff’s loss or damage.  Although
the response to civil claim alleges that the plaintiff sustained no loss or
damage as a result of the accident, the defendant conceded at trial that Mr. Dzumhur
was indeed injured at the time.  Rather, the defendant’s position at trial was
that:

·      
the accident was caused solely by the fault or negligence of the
plaintiff; and

·      
in any event, the extent of the injury is exaggerated and has not
in fact caused pecuniary loss in any meaningful way.

[142]     To the
extent that this action involves a claim for the apportionment of liability for
damages, this province’s Negligence Act, R.S.B.C. 1996, c. 333
applies.  The Act provides:

·       if by the fault of two or more
persons damage or loss is caused to one or more of them, the liability to make
good the damage or loss is in proportion to the degree to which each person was
at fault;

·       the degree to which each person was
at fault must be ascertained and expressed as a percentage of the total fault;

·       the person sustaining the damage or
loss is entitled to recover from each other person causing same the percentage
of the damage or loss that corresponds to the degree of fault of that other
person; and

·      
the amount of
damage or loss and the existence and degree of any fault causing same are
questions of fact.

[143]     In the
present case, these provisions mean that:

·      
if the accident and any resulting loss or damage was caused
solely by the fault of the plaintiff, then the defendant will have no liability
to pay damages; but

·      
if the accident and any resulting loss or damage was caused by
the fault of the defendant, then the defendant is liable to pay compensation to
the plaintiff for his loss in proportion to her degree of fault, whether that
be 1% or 100% as the Court may determine.

[144]     The
Response to Civil Claim contains various "boilerplate" allegations of
the plaintiff’s contributory fault, several having no application to the
circumstances (e.g. going through a red light, ignoring a flagman’s
directions, excessive speed in a construction zone).  Interestingly, the Response
does not even plead the plaintiff was exceeding the speed limit, merely that he
was driving without due care and attention, failing to keep an adequate lookout,
and failing to stop his motor vehicle in time to avoid the collision.

[145]     Sections
186 and 175 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, govern
the entry of a vehicle onto a highway from a stop sign.  The driver must stop
at the stop sign and yield the right-of-way to traffic approaching the
intersection "so closely that it constitutes an immediate hazard".  In
more common parlance, and in accord with simple common sense, a vehicle wishing
to turn left onto a highway from a stop sign located at T-intersection must not
do so unless the turn can be completed in a safe and timely manner having
regard to the oncoming traffic in both directions on the highway.

[146]     I accept
the evidence of the independent witness, Mr. Trainor, set out in paras. 50-55
of these reasons.  His view of the accident was clear and unimpeded and he saw
the events from start to finish.

[147]     I find as
a fact that the defendant’s vehicle left the stop sign as a van was making a
right turn onto Bath Road from No. 5 Road, then crossed the first
northbound lane and entered the second northbound lane where it was almost
immediately struck by the vehicle driven by the plaintiff.  I find as a fact the
defendant simply drove right into the path of the plaintiff and he could do nothing
to avoid the impact.

[148]     This
conclusion is reinforced by the defendant’s own testimony that the plaintiff’s van
was six to eight car lengths away when she started her turn.  A vehicle
travelling at 50 km/h is covering 13.9 metres per second and at 60 km/h is
covering 16.66 metres per second.  This is approximately three medium-sized car
lengths per second.  It was literally a matter of seconds for the plaintiff’s
vehicle to travel the stated distance of six to eight car lengths.  In such
circumstances, even a professional driver such as Mr. Dzumhur is not
expected or required to have the lightning evasive reactions of a Formula One
race car driver.

[149]     The
evidence of both the defendant and the witness Jacqueline Stairs as to plaintiff’s
vehicle’s speed is unreliable.  Ms. Davoody was concentrating on and
distracted by the approaching vehicle in the curb lane that intended to turn
right onto Bath Road.  She misperceived the distance of the plaintiff’s vehicle
from the intersection, assuming she even saw it at all, and Ms. Stairs’
impression of speed was based on fleeting observation of no more than a couple
seconds duration.  Mr. Trainor’s version of events, and that of the
plaintiff himself, is far more reliable.

[150]     The court’s
determination and allocation of fault for a car accident is a question of fact.
I find as a fact that the collision was caused entirely by the fault of the
defendant attempting to make a left turn onto No. 5 Road when the
plaintiff’s vehicle was sufficiently close to the intersection so as to not
only constitute a hazard but also render the resulting impact unavoidable.  The
plaintiff is not at fault in any way for the collision.  The defendant is
therefore 100% liable for any loss or damage caused by the accident.

CAUSATION AND THE ASSESSMENT OF DAMAGES IN A NEGLIGENCE CASE

[151]     As indicated
above, to effect recovery in a negligence case, the plaintiff must prove on the
balance of probabilities that the defendant’s negligent conduct actually caused
a loss or injury that is the subject matter of the claim.

[152]     The basic
legal principles respecting causation are found in the seminal case of Athey
v. Leonati, [1996] 3 S.C.R. 458, repeated many times since, and which
include:

1.       the
general, but not necessarily conclusive test for causation is the "but for"
test requiring the plaintiff show his injury and loss would not have occurred
but for the negligence of the defendant;

2.       this
causation test must not be applied too rigidly. Causation need not be
determined by scientific precision as it is essentially a practical question of
fact best answered by ordinary common sense;

3.       it is
not necessary for the plaintiff to establish that the defendant’s negligence
was the sole cause of the injury and damage.  As long as it is it is part
of the cause of an injury, the defendant is liable; and

4.       apportionment
does not lie between tortious causes and non-tortious causes of the injury or
loss.  The law does not excuse the defendant from liability merely because
causal factors for which he is not responsible also helped to produce the harm.

[153]     In a personal
injury case such as this, the plaintiff must establish causation not only for
the personal injuries alleged to have been sustained but also for the losses
for flowing from that injury.  Even if the defendant did cause personal injury
to the plaintiff, if the plaintiff cannot establish that the injury, in turn,
caused a certain loss, the plaintiff cannot recover from the defendant for that
loss.

[154]     The
distinction between causation of personal injury and causation of loss
consequent upon that injury is important.  The former is concerned with
establishing the existence of liability while the latter is concerned with the
extent of that liability.

[155]     In the
present case, for example, the defendant conceded at trial (if not in her
pleadings) that the accident had caused personal injury to the plaintiff. 
However, she says the injury is relatively minor and the plaintiff exaggerates its
effects.  In particular, she argues that the plaintiff’s injuries have not
caused or resulted in any loss of future earning income earning capacity, which
is perhaps the most significant component of the plaintiff’s claim for damages.

CREDIBILITY OF THE PLAINTIFF

[156]     Defence
counsel argues that the plaintiff is not a credible witness and that he
exaggerates the effects of his injuries, notably, his asserted ongoing and
disabling lower back pain.  Counsel submits there is no objective evidence of
such injury (e.g. x-rays, scans or MRIs), that Dr. Caillier’s report
is based almost entirely upon subjective complaints by the plaintiff, and she
is not the plaintiff’s treating physician, rather, is a consultant hired by the
plaintiff’s lawyer.

[157]     Defence counsel
submits a number of inconsistencies exist between the evidence given by the
plaintiff and his wife, and also other instances where the evidence was simply
not worthy of belief.  He pointed to one instance where the wife initially
testified that her husband’s father did not visit the family home at all after
the accident and the plaintiff’s insistence otherwise, including his assertion
that his wife was mistaken in that regard.  Similar contradictions were
identified in the evidence, both at discovery and at trial, respecting the precise
extent of the plaintiff’s participation in vacuuming and other housekeeping
duties.

[158]     Counsel
ridiculed as absurd the assertion by both the plaintiff and his wife that his
inability to take his younger daughter in his arms following the accident has
distanced the daughter and the father.  The daughter was only nine months old
at the time of the accident.

[159]     Counsel
also pointed to the plaintiff’s production at trial of computer records
detailing the cash income from the plaintiff’s delivery business since
inception.  He contrasted this with the plaintiff’s evidence at his examination
for discovery that such records were only kept from 2010 onwards.  At trial,
the plaintiff testified that he "was wrong" on this point at his
examination for discovery and counsel exclaimed incredulity at such a statement: 
"How do you just forget that you have been keeping such records on a daily
basis for years?".

[160]     Counsel
submits that the cumulative effect of these and other "inconsistencies"
in evidence leads to the only logical inference that the plaintiff is exaggerating
the effect of his injuries and that his wife and presumably others in support
of the plaintiff are simply trying to bolster those exaggerated claims.

[161]     As was
noted by Dillon J. in Bradshaw v Stenner, 2010 BCSC 1398 at para. 186,
aff’d by 2012 BCCA 296:

Credibility involves an
assessment of the trustworthiness of a witness’ testimony based upon the
veracity or sincerity of a witness and the accuracy of the evidence that the
witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452,
50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of
his memory, the ability to resist the influence of interest to modify his
recollection, whether the witness’ evidence harmonizes with independent
evidence that has been accepted, whether the witness changes his testimony
during direct and cross-examination, whether the witness’ testimony seems
unreasonable, impossible, or unlikely, whether a witness has a motive to lie,
and the demeanour of a witness generally (Wallace v. Davis, [1926] 31
O.W.N. 202 (Ont.H.C.); Farnya v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.)
[Farnya]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128
(S.C.C.)). Ultimately, the validity of the evidence depends on whether the
evidence is consistent with the probabilities affecting the case as a whole and
shown to be in existence at the time (Farnya at para. 356).

[162]     I observed
the plaintiff carefully while he was giving evidence.  He answered questions in
a forthright, frank and sincere fashion.  I detected no fabrication or
dissimulation.  When he was unable to remember something, he said so in plain
language.

[163]     I reject
the defendant’s submissions respecting the plaintiff’s exaggeration.  He
presented as a plain-spoken, honest witness and while the evidence had some
inconsistencies from time to time, I find his evidence to be generally truthful,
unvarnished and credible.

FINDINGS AS TO THE PLAINTIFF’S INJURY, DISABILITY AND THE CONTINGENCY OF
FUTURE MEDICAL TREATMENT

[164]     At the
present time, I find that the plaintiff is not physically capable of full-time
employment at UPS.  I base this conclusion not only on Dr. Caillier’s
reports but also on the plaintiff’s own testimony respecting his difficulties
at work, including his recent experience of concerted effort over three long
days resulting in considerable physical and emotional distress.  I find that
the plaintiff will very probably undergo the recommended MBB/RFR treatments
within the next year and that these treatments will likely provide at least
some improvement to the facet joint-related low back pain and increase the
plaintiff’s functionality.  I also conclude, however, that notwithstanding the
MBB/RFR treatments, the plaintiff is likely going to experience some degree of
chronic and recurrent back pain throughout the balance of his life, which will
continue to limit and restrict his physical activities.  The episodes of back
pain may be abated to some degree by a continued commitment to appropriate
exercise as well as a repetition of rhizotomy procedures from time to time, but
it is unlikely the plaintiff will ever become completely free of pain or limitations/restrictions
in the future.

[165]     I have
already observed that this case has some unusual features, including:

·      
while the plaintiff consulted with
Dr. Cohen for a short time following the accident, he has not sought
treatment from a physician for over two years;

·      
while the plaintiff complains of
chronic low back pain characterized by Dr. Caillier in part as "mechanical
in nature", no diagnostic medical imaging was undertaken (x-rays, scans,
MRIs);

·      
the only medical opinion testimony
on behalf of the plaintiff comes from a physiatrist hired by the plaintiff’s
lawyer for the purposes of medical–legal reporting;

·      
the "rebuttal" opinion
from the expert witness tendered by the defence was based upon a "clinical
records review" without any physical examination of the plaintiff;

·      
the defendant’s expert has
recommended certain MBB/RFR treatments to remedy the plaintiff’s back ailments
and the plaintiff’s expert agrees these should be tried; and

·      
the suggested treatments have yet
to be carried out and their efficacy is a major contingency going right to the
heart of any award for non-pecuniary and future pecuniary loss.

[166]     Dr. Caillier’s
June 15, 2015 report describes the plaintiff’s injuries arising from the June
1, 2012 motor vehicle accident as well as his present medical condition:

1.       soft
tissue musculoligamentous injury involving the neck, upper back, and shoulder
regions (resolved);

2.       headaches
and dizziness (resolved);

3.       tinnitus
(resolved);

4.       abrasions
to the hands (resolved);

5.       blunt
trauma to and bruising of the knees (resolved);

6.       right
piriformis syndrome (resolved);

7.       occasional
right foot pain;

8.       soft
tissue musculoligamentous injury involving the lower back region;

9.       mechanical
low back pain;

10.      physical
deconditioning;

11.      reduced
sleep secondary to lower back symptoms; and

12.      emotional
and psychological symptoms secondary to pain restricting physical functionalities
and activities.

[167]     Dr. Caillier
based her report on both the plaintiff’s reporting of his symptoms and current
functionality, as well as her own physical examination.  All of this is
described in detail over the span of six pages in her report.

[168]     I have
already found that the plaintiff is a generally credible individual who accurately
described his medical symptoms and functional restrictions without
exaggeration.  I find his recounting of these to Dr. Caillier as recorded
in her June 15, 2015 report to likewise be balanced and accurate.  I
accept Dr. Caillier’s diagnosis of ongoing chronic low back pain caused by
the accident, which is both soft tissue and mechanical in nature.  I also
accept her opinion that the mechanical back pain likely originates from the
posterior elements of the spine such as the facet joints.

[169]     I also
accept that, absent any substantial improvement in symptomology arising from MBB
and RFR treatments:

·      
the back pain will continue, although further improvements in
physical conditioning and a life-long exercise program will likely lessen the
intensity of the pain and cause it to be more intermittent;

·      
symptomatic flare-ups of pain will continue to occur when the
plaintiff is involved in sustained posturing or heavier activities;

·      
the pain and the symptomatic flare-ups will likely continue to
negatively impact the plaintiff’s home, recreational and work activities;

·      
the chronic lower back pain, including its provocation by heavier
lifting and carrying, reduces his durability to continue as a UPS driver until
age 65 and may ultimately require him to consider a different and more
sedentary form of employment;

·      
the plaintiff’s ability to engage in recreational activities such
as skiing, bicycling and, in particular, soccer, is reduced but he is capable
of engaging in them in so far as his tolerance of pain permits; however, it is
unlikely he will return to his full scope of pre-accident level of function;

·      
sleep disruption will continue but will not likely have a
significant impact on his ability to function during the day; and

·      
the ongoing pain and activity restrictions will continue to negatively
impact his emotional health and mood.

[170]     The
validity of Dr. Caillier’s diagnosis is to some extent corroborated by the
plaintiff’s friends and co-workers whose testimony I find credible and accept
without reservation.

[171]     The
proverbial "elephant in the room" however, is the contingency of improving
and perhaps even eliminating the plaintiff’s low back pain symptomology through
the MBB and RFR treatments recommended by Dr. Rickards.  The question is whether
and to what extent Dr. Rickards’ opinion on the likelihood of "full
and complete recovery" through these treatments is to be taken into
account in assessing the plaintiff’s future.

[172]     The
plaintiff challenges the validity of Dr. Rickards’ opinion on several
bases:

1.       it is a
"records review" analysis without any physical examination of the
plaintiff and should thus be given no weight, as occurred in cases such as Ruscheinski
v. Biln, 2011 BCSC 1263 and Kathuria v. Wildgrove, 2014 BCSC 1274,
reversed by 2015 BCCA 186 on other grounds;

2.       Dr. Rickards
misquotes Dr. Caillier’s diagnosis by

(a)      ignoring
her reference to the soft tissue musculoligamentous contribution to the back
pain; and

(b)      describing
the mechanical low back pain as "probably facet joint related"
as opposed to simply being a possibility…… He thus overstates the potentially
curative impact of any MBB/RFR treatment;

3.       MBBs
are diagnostic not therapeutic in nature and two MBBs must provide relief in
the 70 to 80% range prior to any RFR procedure. Whether any such level of
relief can be expected in the plaintiff’s particular circumstances is simply
unknown at this stage i.e., the Rickards’ panacea is nothing but
speculation; and

4.       while Dr. Rickards
may have carried out 100 MBB/RFR procedures at his clinic to date, these have
only occurred in the past two years and it is too early to tell whether his
patients’ pain relief is anything other than temporary in nature.

[173]     These
criticisms have some validity.  But Dr. Caillier agrees that the plaintiff
should try MBB/RFR and the plaintiff himself has stated that he trusts Dr. Caillier’s
judgment such that he would undertake a treatment trial she suggests.  Further,
in final argument the defendant agreed that any future care award in this case
would properly include at least $10,000 as the cost of private MBB/RFR
treatments.

[174]     In these
circumstances, I conclude it is appropriate and necessary to assess damages on
the basis that the plaintiff will probably undergo MBB/RFR treatments in the
near future, likely within the next year.  This, in turn, begs the next
question: what will be the outcome of such procedures and how should these
events factor into the assessment equation?

[175]     In Athey,
the Supreme Court of Canada instructed that "future or hypothetical
possibility will be taken into consideration as long as it is a real and
substantial possibility and not mere speculation" (para. 27).  In Parypa
v. Wickware, 1999 BCCA 88 at para. 67, our Court of Appeal
instructed that the trial court "must take into account all substantial
possibilities and give them weight according to how likely they are to occur in
light of all the evidence".

[176]     In Rosvold
v. Dunlop, 2001 BCCA 1 at para. 9, the same court stated:

The standard of proof to be
applied when evaluating hypothetical events that may affect an award is simple
probability, not the balance of probabilities [citation omitted].  Possibilities
and probabilities, chances, opportunities, and risks must all be considered, so
long as they are a real and substantial possibility and not mere speculation.  These
possibilities are to be given weight according to the percentage chance they
will happen.

[177]     In Villing
v. Husseni, 2015 BCSC 1604, the court was required to address the "uncertainty"
as to the plaintiff’s response to suggested treatment of MBB and RFR for the
plaintiff’s chronic low back pain caused by injury to the facet joints of her
lumbar spine.  As in the present case, there was a contest between a physiatrist
who testified on behalf of the plaintiff and the orthopedic surgeon who
testified for the defence, the same Dr. Rickards who has testified in this
case.

[178]     In Villing,
the expert physiatrist opined that if the MBB/RFR procedures were successful,
then they might have to be repeated yearly.  He also opined it was likely that
the plaintiff would have to learn to live with some degree of chronic back pain
that would have to be managed throughout her life.

[179]     In the Villing
case, Dr. Rickards testified that the treatment could provide significant
or full pain relief for 24 to 48 months or longer before the affected nerves would
grow back and the pain could return, requiring repetition of the procedure.  He
explained how some older patients had to undergo as many as six rhizotomy
procedures. He did not attach any specific degree of possibility to the
23-year-old plaintiff experiencing a permanent remission of her symptoms.  He
did state, however, that in cases involving younger individuals, the treatment "allowed":

1.       a full,
rapid, and complete recovery with return to pre- injury level of activity;

2.       no risk
of recurrence of the back pain problem; and

3.       no
increased predisposition or risk to the development of arthritic change in the
lower back either in the short- or long-term.

[180]     Although
the syntax is slightly different, Dr. Rickards expresses exactly the same
conclusions in his August 31, 2015 report in this case.

[181]     In Villing,
the court interpreted Dr. Rickards’ opinion "as a statement only of a
possible outcome" and not one to which any specific degree of probability
was attached (para. 19).  The court concluded that the plaintiff in that
case was "facing, probably, a lifetime of some degree of chronic back pain
and a need to manage her lifestyle and constantly be watchful" but also
that "she has the possibility of long-term and perhaps permanent abatement
of her facet joint pain through rhizotomies and rehabilitation" (para. 29). 
The court found that at least "a few rhizotomy treatments" would be
required and possibly more.  It held there was a "near-certainty of a
future loss of income, as she recovers from these treatments" in the near
term, and "a very high probability" of further loss arising out of treatments
in the future (para. 43).

[182]     It was
implicit in the Villing judgment that the rhizotomy procedures would
likely provide at least some pain relief for the plaintiff; however, the court
also held the plaintiff likely faced a lifetime of at least some degree of
chronic back pain.  The likelihood of future rhizotomy treatments was factored into
the award of non-pecuniary damages as well as for the cost of future care (private
procedure cost), and loss of future income while undergoing and recovering from
the treatments.

[183]     I cannot simply
conclude on the basis of Dr. Rickards’ report/testimony that the MBB/RFR
treatment will almost certainly result in a full and complete recovery from his
chronic back pain and allow him to return to full activities at the pre-accident
level.  In my opinion, this conclusion would be unfair to the plaintiff.  This
possibility must be accounted for when assessing damages but I generally prefer
and give considerable weight to Dr. Caillier’s observations that:

·      
while the procedures may improve the mechanical facet joint-related
low back pain, they are unlikely to impact the soft tissue-generated lower back
pain; and

·      
none of her patients have experienced such a dramatic response to
rhizotomy procedures.  While some pain improvement will occur, multiple
rhizotomy procedures will likely be required over the years and the plaintiff
is unlikely to become free of pain or limitations/restriction.

NON-PECUNIARY GENERAL DAMAGES

[184]     The BC Court
of Appeal in Stapley v. Hejslet, 2006 BCCA 34 at para. 46,
identified a non-exhaustive list of factors to be considered in awarding non-pecuniary
damages in personal injury cases:

1.       age of
the plaintiff;

2.       nature
of the injury;

3.       the
severity and duration of pain;

4.       the
degree of disability;

5.       the
extent of any emotional suffering;

6.       the
extent of loss or impairment of life;

7.       impairment
of family, marital and social relationships;

8.       impairment
of physical and mental abilities; and

9.  loss of lifestyle.

[185]     The
court also noted any stoicism on the part of the plaintiff should not,
generally speaking, be a "penalizing factor".

[186]     While
fairness of any award for non-pecuniary loss is often assessed by reference to
awards made in comparable cases, the court in Stapley reiterated the
impossibility of developing a "tariff" and emphasized that awards
should vary to meet the specific circumstances of each individual case and, in
particular, with an appreciation of the plaintiff’s individual loss (para. 45).

[187]     In this
case the plaintiff is 52 years old.  He was athletic, fit, healthy, and active.
He enjoyed his work, his furniture delivery side-business, his young family
and a wide circle of friends in the Bosnian community.  The accident and the
resulting injuries resulted in significant change.  While the initial soft
tissue injuries and contusions resolved fairly quickly, he developed a painful
sciatic condition, piriformis syndrome, and what has since become chronic pain
in the lower back that is both mechanical and soft tissue in nature.  That pain
will likely be relieved to some degree by MBB and rhizotomy treatments in the
future but the recurrence of pain in the lower back is likely to be a permanent
feature.

[188]     No doubt
the plaintiff’s condition impaired his physical abilities and lifestyle, both
in terms of soccer in which he was a passionate participant and as well as his
family, marital and social relationships.  This, combined with financial
stresses from reduced income, has depressed the plaintiff’s mood and resulted
in some emotional suffering.  He displays considerable stoicism, particularly in
his determination and performance at work, but he should not be penalized for
this.  Some of these issues will likely be ameliorated to some degree in the
future by virtue of any MBB and rhizotomy treatment protocol.

[189]     The
plaintiff submits an appropriate award for non-pecuniary damages in this case
would be $110,000.  He cites a number of cases involving chronic back pain
including: Park v. Abd El Malak, 2015 BCSC 223 at para. 98 awarding
$80,000; Johnson v. Kitchener, 2012 BCSC 1796 at para. 68 assessing
the award at $90,000 had the plaintiff not also been at fault for the injuries;
Midgley v. Nguyen, 2013 BCSC 693 at para. 231 awarding $110,000;
and Crane v. Lee, 2011 BCSC 898 at para. 49 awarding $100,000.

[190]     The
defendant submits that an appropriate award for non-pecuniary loss in this case
would be in the range of $35-$45,000.  She cites two cases involving soft
tissue injuries, causing persistent pain and loss of enjoyment of life for two
relatively young plaintiffs: Perry v. Ismail, 2012 BCSC 123 at para. 95
awarding $42,500 and Burton v. Insurance Corporation of British Columbia,
2011 BCSC 653 at para. 48 awarding approximately $40,000.

[191]     The
defendant was the party who alerted the court to the Villing case, which
also involved a youthful plaintiff facing "a lifetime of some degree of
chronic back pain" albeit with the possibility of some pain abatement
through repeated rhizotomies in the future.  The defendant in the Villing
case also recited the Perry and Burton cases.  The court drew
some parallels to another case involving MBB for an older individual’s chronic
back pain, Engqvist v. Doyle, 2011 BCSC 1585, which awarded $70,000 and
the court in Villing ultimately assessed Ms. Villing’s non-pecuniary
damages in the amount of $85,000.

[192]     I have
read each of the cases cited.  In my view, the cases cited by the defendant do
not reflect Mr. Dzumhur’s situation, which is more parallel to the facts
of the cases cited by the plaintiff as well as Villing and Engqvist. 
In my view, general damages for pain and suffering and non-pecuniary loss and
other non-pecuniary loss in this case are properly and fairly assessed in the
amount of $85,000 and I award this amount accordingly.

LOSS OF PAST AND FUTURE INCOME EARNING CAPACITY

Past income loss

[193]     Mr. Dzumhur
was off work for 30 working days from the date of the accident until July 16,
2012.  The parties have agreed that the wage loss from his UPS employment
during that period is in the net amount of $3,983.37 excluding interest
pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79.  I
therefore award that amount rounded up to $4,000 on account of net income loss
for that time.

Past loss of earning
capacity

[194]     Compensation
for past loss of earning capacity is based on what the plaintiff would have,
not could have, earned but for the injury that was sustained: Rowe v.
Bobell Express Ltd., 2005 BCCA 141 at para. 30; M.B. v. British
Columbia, 2003 SCC 53.

[195]     The
plaintiff claims $21,500 as an appropriate quantification of past loss of
earning capacity to date of trial.  The claim is in relation to the plaintiff’s
side-business of furniture delivery for the Bombay stores.  Those deliveries
ceased entirely for approximately three months following the accident and
thereafter resumed but not to the levels formerly enjoyed before the accident,
and ultimately declining through 2013 and 2014 when the business ceased.  The
plaintiff concedes that the business from the Granville Street Bombay store
would have been lost in any event by virtue of that store’s closure in 2015,
but argues that given his work ethic and demonstrated work history, the
plaintiff would have found alternative delivery customers had he not been
injured.

[196]     The
plaintiff assesses the loss by using the average revenue for 2010 and 2011 as a
base annual income from the delivery business of $13,000, multiplies that
amount by the number of months from the accident to trial, and deducts the
actual revenue received from the business during that time.  The arithmetic
produces approximately $29,000 from which the plaintiff suggests the sum of $7,500
is properly deducted to account for the closing of the Granville store, hence
producing the $21,500 claimed.

[197]     The
defendant submits the circumstances of this case disclose no loss and no award
is warranted.  She points to the increase in the plaintiff’s income from UPS in
the years 2013 and 2014 from $5,000 to $9,000 in 2010 and 2011, implying that
the plaintiff was working longer hours and therefore less able to devote time
to the delivery business.  Perhaps more telling, the defendant points to the
plaintiff’s own records respecting the delivery income in the years 2010 to
2014 and, in particular, the plaintiff’s notation with a "G" on those
records for income received from the Granville store.  That notation appears
beside the vast majority of the entries and, if accurate, would seem to
indicate that 90-95% of the delivery income was generated from the Granville
Street store, the store that went out of business in early 2015.

[198]     Mr. Dzumhur
clearly lost some income from his delivery business as a result of the accident. 
He made no deliveries in the three-month period following the accident.  Deliveries
resumed thereafter but not at the same pace as before.  Mr. Faizi, the
manager of the Bombay store in Richmond Centre, testified that he was forced to
replace the plaintiff as a result of his absence following the injury, that he
reduced subsequent work assignments to him because of his difficulties
following the accident, and that, but for the accident, he would have continued
using the plaintiff for the delivery work from the Richmond Bombay store.

[199]     The
majority of the delivery income certainly appears to have been derived from the
Granville Street store.  That store’s closure was not related to the accident
so no claim is possible for the loss of that business.  The plaintiff
acknowledged he made no effort to find any other customers for his delivery
enterprise.  The assertion that, but for the accident, the plaintiff would have
done so, must fail.  The demise of the Granville Street store would likely have
also resulted in the demise of the delivery business.

[200]     In 2011
the plaintiff earned almost $15,000 from his Bombay store deliveries and he was
on track to earn a similar amount in 2012 but for the accident. His loss for
the three months following the accident is reasonably assessed in the gross
amount of $3,600.  No adequate explanation arises from the evidence for the
decline in business from the Granville store in 2013 and 2014 but it is
reasonable to assume it was at least partly caused by the plaintiff’s injuries
and inability to perform some of the heavier work.  Doing the best I can on the
evidence and in fairness to both sides, I assess the additional loss arising
from or related to the delivery business in the gross amount of $5,000.

[201]     One other
element to the claim for past loss of capacity must be considered.  The
plaintiff testified, and I accept, that were the delivery business ever to
fail, he would have exercised his option of becoming a full-time driver at UPS
to make up for that loss of income.  With the demise of the Granville Street
store in early 2015, I find the plaintiff could have and, but for the injury,
would have applied for such full-time employment at UPS.  This would have
increased his employment income, although the precise amount is unclear and,
indeed, the mechanics and timing of any transition to full-time work were not
fully developed on the evidence.  This is, however, a classic "loss of
capacity" claim based on a real and substantial possibility.  Mr. Madsen,
the UPS vice president at Vancouver, actually offered the plaintiff the
opportunity to become a full-time driver but the latter declined because of his
medical problems and inability to physically perform the additional work.

[202]     I discuss
the arithmetic respecting income differentials based on full-time and part-time
employment in the next section of these reasons.  Suffice it to say I assess
damages for the plaintiff’s inability to work as a full-time driver for the
period March 2015 to the date of trial in the gross amount of $8,750.

[203]     The
parties agreed at trial that any loss of gross income from the delivery
business should be reduced by 20% for expenses that would have been incurred
and a further 22% for "netting" on account of income tax.  The loss
of income related to the delivery business is therefore determined to be the
net sum of $5,366 rounded to $5,400 and from the plaintiff’s loss of income
from full-time work at UPS in the amount of $6,825 rounded to $6,800.

Future loss of earning
capacity

[204]     A
bewildering array of case law addresses both entitlement to and the
quantification of claims by personal injury plaintiffs for loss of future
earning capacity.  In the past five years alone, our Court of Appeal addressed
the subject in over 65 cases.  While some of the pronouncements in these
cases can confuse, particularly when taken out of context, a discrete, two-step
process is clearly required:

1.       the
court must determine whether, as a result of the injuries sustained in the
accident, the plaintiff’s present or future earning capacity has or will be
impaired such that there is a substantial possibility of a future loss of income
on the plaintiff’s part; and

2.       if so,
the court must then assess on a present value basis what compensation should be
awarded for that future financial loss.

[205]     The first
question deals with entitlement and the second with quantum.

[206]     The basic
goal of tort law is to restore the injured plaintiff to the position he or she
would have been in but for the defendant’s negligence, at least insofar as a
monetary award is capable of doing so.  This requires the court to compare the
likely future of the plaintiff’s working life if the accident had not happened
with the plaintiff’s likely future working life after the accident.  In the
1978 trilogy, the Supreme Court of Canada itself referred to the exercise as "crystal
ball gazing" inasmuch as it involves an inquiry into future events. 
However, it must be more than mere speculation; it must be informed
speculation firmly grounded in the evidence and the particular facts of each
case.  The standard of proof for such future events is not the traditional "balance
of probabilities" applicable to most civil cases; rather, future or
hypothetical possibilities will be taken into consideration so long as they are
real and substantial.

[207]     For
example, in Perren v. Lalari, 2010 BCCA 140, the plaintiff suffered soft
tissue injuries and her symptoms were likely to continue on a chronic basis.
These injuries prevented her from being competitively employable in any
position that required heavy or repetitive work.  However, the plaintiff was
employed and was likely to remain employed by the provincial government in a
management position that did not require any heavy or repetitive work.  There
was no real possibility that the plaintiff would have turned to any such
employment in the future and hence the plaintiff could not demonstrate a real
possibility that she would suffer a loss of income as a result of the
diminishment of employability.  The trial court awarded $10,000 as a modest
amount for loss of earning capacity but the Court of Appeal overturned the
decision based on the absence of proof of a real and substantial possibility of
future pecuniary loss.  Mere inability to perform an occupation that is not a
realistic alternative occupation is not proof of a future loss and so the claim
failed step one of the two-step analysis.

[208]     Step two,
the assessment of appropriate quantum, is usually the more challenging task. 
In Meghji v. British Columbia (Ministry of Transportation and Highways),
2014 BCCA 105 at para. 81, the court observed:

It is correct to say that an
award of damages under this head [loss of future earning capacity] is a result
of the careful weighing of all the evidence and the application of considered
judgment to that evidence.  It is not a calculation [citation omitted]. Because
the court is required to take into account all substantial possibilities it is
necessary to use careful judgment in weighing those possibilities.

[209]     In the Perren
case, the court noted two different approaches, both said to be correct, to the
assessment of future loss of earning capacity: the "earnings approach"
and the "capital asset approach".  The former is said to be more
useful "where a demonstrated pecuniary loss is quantifiable in a
measurable way" (Perren at para. 12).  The latter approach was
said to be "more appropriate where the loss, though proven, is not
measurable in a pecuniary way", although the court did not elaborate on
the actual mechanics of its application (Perren at para. 12).

[210]     In Rosvold
the court stated:

The task of the court is to
assess damages, not to calculate them according to some mathematical formula:
[citation omitted].  Once impairment of a plaintiff’s earning capacity as a
capital asset has been established, that impairment must be valued.  The
valuation may involve a comparison of the likely future of the plaintiff if the
accident had not happened with the plaintiff’s likely future after the accident
has happened.  As a starting point, a trial judge may determine the present
value of the difference between the amounts earned under those two scenarios. 
But if this is done, it is not to be the end of the inquiry.  The overall
fairness and reasonableness of the award must be considered taking into account
all the evidence.

…

The assessment of damages is a
matter of judgment, not calculation.

(paras. 11, 18)

[211]    
In Jurczak v. Mauro, 2013 BCCA 507 at paras. 36-37, the court
noted some mathematical calculation may aid in quantifying a loss, but no
particular formula applies:

[The] process is "an assessment rather that a calculation"
and "many different contingencies must be reflected in such an award":
[citation omitted] …"ultimately the court must base its decision on what
is reasonable in all of the circumstances.  Projections, calculations and
formulas are only useful to the extent that they help determine what is fair
and reasonable": [citation omitted] and

With that said, if there are
mathematical aids that may be of some assistance, the court should start its
analysis by considering them.

[212]     In Schenker
v. Scott, 2014 BCCA 203, the court noted that comparisons to awards in
somewhat similar cases are of limited utility in assessing damages for awards
of future loss.  Rather, the trial court must make a "reasoned analysis to
explain and justify the award" rather than simply adverting to the
governing principles and then "plucking a number from the air".  In
that regard the court recommended at paras. 53-55, 70:

·      
the findings of fact in the case
should be expressly related to the actual assessment of damages;

·      
the court should undertake a "clear
analysis of whether [the plaintiff] proved a substantial possibility of future
income loss derived from [his/her] diminished marketability [or other
components of any loss of earning capacity]";

·      
"[m]athematical, statistical
or economic evidence, where available, may be of assistance in assessing
damages";

·      
the court should provide an "explicit
analysis of the general level of earnings [the plaintiff] would have
realistically achieved, but for the accident, taking into account [his/her] intentions
and the probabilities of achieving them";

·      
this should be followed by a "projection
of [the plaintiff’s] likely future earnings taking into account [the] injuries
and other relevant contingencies";

·      
as part of this last step, if the
court concludes that the plaintiff may have to accept less than full-time work
in the future as a result of her his or her injuries, the court must assess the
probability of that occurring and the extent to which the plaintiff will be
restricted to such part-time work; and

·      
if parties provided the court with
expert evidence from economists to assist in the valuation of lost capacity,
the court should explain its relevance and what use, if any, the court
ultimately makes of it.

[213]     In Morgan
v. Galbraith, 2013 BCCA 305, the trial court rejected the "earnings
approach" to the assessment of damages in favour of the "capital
asset approach" described in Brown v. Golaiy (1985), 26 B.C.L.R.
(3d) 353 (S.C).  The latter, of course, is one of the two correct approaches
identified in Perren.  In Brown, the court set out several "considerations"
towards assessing the "value" of any lost or impaired earning
capacity including:

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

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

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

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

[214]     In my
view, these factors more properly go to step one of the analysis referred to
above, rather than quantification of damages.  For sure, there is a dearth of
authority explaining precisely how these considerations inform value (as
opposed to the existence of a loss), although in the Morgan case the
Court of Appeal stated:

If the assessment is still to be
based on the capital asset approach the judge must consider the four questions
in Brown in the context of the facts of [the] case and make findings of
fact as to the nature and extent of the plaintiff’s loss of capacity and how
that loss may impact the plaintiff’s ability to earn income.  Adopting the
capital asset approach does not mean that the assessment is entirely at large
without the necessity to explain the factual basis of the award [citations
omitted]

[215]     The "capital
asset" approach was considered to have been triggered in Pallos v.
Insurance Corp. of British Columbia, [1995] 53 B.C.A.C. 310, where the
court concluded the plaintiff had permanent pain resulting from his injuries that
limited his activities and his income earning capacity.  The loss of capacity
was found to exist even though the plaintiff was still employed by his pre-accident
employer and would continue to be so employed indefinitely.  The question was
what award ought to have been made under such circumstances and how it should
be assessed.  The court stated:

The cases to which we were
referred suggest various means of assigning a dollar value to the loss of
capacity to earn income.  One method is to postulate a minimum annual income
loss for the plaintiff’s remaining years of work, to multiply the annual
projected loss times the number of years remaining, and to calculate a present
value of this sum.  Another is to award the plaintiff’s entire annual income
for one or more years.  Another is to award the present value of some nominal
percentage loss per annum applied against the plaintiff’s expected annual
income.  In the end, all of these methods seem equally arbitrary.  It has,
however, often been said that the difficulty of making a fair assessment of
damages cannot relieve the court of its duty to do so.  In all the
circumstances, I would regard a fair award under this head to be the sum of
$40,000.

[216]     There is
nothing in the judgment to indicate how the amount of $40,000 was determined. 
To that extent the outcome might represent an example of simply adverting to the
governing principles and then "plucking a number from the air" of the
sort later criticized in the Schenker case.

[217]     I turn now
to applying these legal principles to the facts of this case.

[218]     The
plaintiff submits that the best measure of his annual uninjured income earning
capacity is a combination of the average income earned from the delivery
business for 2010 and 2011 combined with his pre-accident income from UPS ($55,000
in 2014).  He suggested $65,000 per annum.  Alternatively, the plaintiff
submits that the proper measure should be the annual income derived from a
full-time position at UPS, being a position the plaintiff was physically
capable of handling before the accident and which he testified would be his
intention should he ever lose his part-time delivery business.  Mr. Khrod
testified as to the rates under the new collective agreement with the UPS
workforce, namely $21.88 gross for part-time drivers as opposed to $27.64 paid
to full-time workers, essentially a $6 difference.  Mr. Khrod was not
asked, nor did he testify as to the hourly rate that Mr. Dzumhur would
qualify for should he convert his status from part time to full time.

[219]     The
plaintiff suggests a baseline calculation of approximately $64,000 (48 weeks
x five days/week x nine hours/day x $28 = $60,480 + 6% holiday pay).

[220]     The
plaintiff submits he is currently "losing" approximately $30,500 per
annum.  This figure is derived from comparing a $64,000 figure above with what
is claimed to be the plaintiff’s likely stream of earnings derived from
continuing his part-time position i.e. $33,500 (48 weeks x five days/week
x six hours/day x $22 + 6% holiday pay = $33,500).  Applying the "economic,
contingencies–in" multiplier provided by the plaintiff’s expert economist
to this loss to age 65 generates "on a conservative basis" results in
a future loss of earnings to age 65 with a present value of $240,000.

[221]     Plaintiff’s
counsel submits that given the plaintiff’s age, his young family, the family’s
financial position, and the testimony of both the plaintiff and his wife, the
plaintiff will need to work at least into his early 70s and perhaps longer.  The
plaintiff suggests that for the period from age 65 to the end of his working
life, he will would no longer be with UPS and hence "it would be more
appropriate to assess the plaintiff’s loss of capacity on a capital asset
approach rather than an earning approach".

[222]     In that
regard counsel submits "the realistic chance of the plaintiff landing
employment of consequence after leaving UPS is slim, particularly given his
lack of Canadian education" and his history as a "one-employer
employee". Therefore, counsel submits, "a reasonable assessment of
the plaintiff’s loss of capacity for the period from his 65th through, say,
73rd year would be another two years of his present notional income of $64,000,
or $128,000 rounded".  That number obviously does not reflect any
discounting to present value.

[223]     In other
words, the plaintiff suggests the total value of his future loss of income
earning capacity claim is $368,000 before application of any additional
contingencies.

[224]     With
respect to contingencies, the plaintiff acknowledges that the future income
multiplier (7.870 to age 65) of the expert economist already built in the
contingencies for non-participation in the labour force, unemployment,
part-time work, part-year work, and survival rates.  However the plaintiff
suggests a further negative contingency affecting the plaintiff is what was
described in Morlan v. Bennett, 2012 BCCA 66 at para. 41, as "essentially
a matter of common sense", namely that "constant and continuous
pain takes its toll and that, over time, such pain will have a detrimental
effect on a person’s ability to work, regardless of what accommodations an
employer is prepared to make".

[225]     The
plaintiff also argues that Dr. Rickards’ proposed panacea of MBB/RFR
treatments is "mere speculation at its finest" in the circumstances
of this case and that it is a "Hail Mary" pass deserving of no weight,
whether as a contingency or otherwise.

[226]     For her
part, the defendant did not address either calculations or contingencies but
simply maintained that the plaintiff has not experienced any loss to date and
will have no loss in the future.  Quite apart from the beneficial impact of the
MBB/RFR treatments, the defendant points out correctly that the assumption of
the plaintiff working only 30 hours per week is contrary to the available
evidence in his timesheets from UPS.  Those timesheets record that in the
period from March 2015 through the beginning of July 2015, the plaintiff worked
approximately 30 hours a week on only two occasions, whereas for the vast
majority of the time his hours ranged from approximately 36 to 48 per week.  This
pattern of work is similar to the four-week pattern of hours worked by the plaintiff
in May 2012, the month before the accident, and no loss has occurred at present
nor should any loss occur in the future.

[227]     I have
already concluded that but for the accident in this case, the demise of the
plaintiff’s furniture delivery business meant he would have become a full-time
employee of UPS in the spring of 2015.  Similarly, I have already concluded
that the pain and physical difficulties arising from the plaintiff’s current
medical condition continues to effectively prevent him from becoming such a
full-time employee.  While the MBB/RFR procedures will likely result in some
improvement of the plaintiff’s chronic pain, as set out above, the plaintiff will
likely continue experiencing some degree of chronic pain and will unlikely be
limitation/restriction-free.  I therefore approach the assessment of loss of
future earning capacity on the basis that the plaintiff will continue as a
part-time driver for UPS, however I propose a significant contingency to allow
for the real and substantial possibility that future MBB/RFR treatments will
reduce the plaintiff’s pain and related physical activity restrictions to such
a degree as to allow for full-time work.  This permits an "earnings
approach" as opposed to a "capital asset" approach to assessing
the loss, at least until age 65.

[228]     As
indicated earlier, the plaintiff was fit, strong and healthy before the
accident.  Because of this, he likely would have been capable of working as a
UPS driver until age 65 notwithstanding the physical nature of the work.  However,
the assumption that the plaintiff would have continued such work into his late
60s and early 70s is unrealistic.  Rather, at age 65 he probably would have
sought out somewhat less physical work on at least a part-time basis to
supplement available government pension income.

[229]     What,
then, is the difference in income to age 65 between a full-time position at UPS
and the plaintiff’s part-time position?  Mr. Khrod testified as to the
differential in the top hourly rates (an approximate 30% difference of $6) and
the range of holiday pay but not as to what rate the plaintiff would initially be
paid if he became a full-time employee.  The range of rates paid to full-time
employees was not identified in the evidence.  Mr. Madsen testified that
full-time drivers are guaranteed eight hours of work a day and can work as much
as nine to 12 hours.  Drivers are paid at the overtime rate if they work more
than eight hours on any given day or more than 40 hours in any given week. 
However no evidence was provided respecting the average annual income of the
full-time drivers generally or of any part-time driver who has converted to
full-time status.

[230]     In my
view, a fair base figure to employ for any arithmetical "loss of earnings
approach" to assessment in this case is $15,000 per annum.  This reflects the
difference between full-time work and continued work on a part-time basis at
almost the same level of hours as before the accident (as actually corroborated
by the most recent UPS timesheets).  It also approximates the annual amount
earned (and since lost) by the plaintiff from his delivery business in the
recent years before the accident.  It is a number approximately equivalent to
30% of the plaintiff’s 2013-2014 UPS income.  It is a reasonable figure to
assign to his annual loss in all the circumstances of the case.

[231]     I have
employed the $15,000 annual loss as the basis for calculating the award for
past loss of earning capacity in para. 202 of these reasons.  For the
purposes of future loss of capacity assessment, however, and employing the "economic,
contingencies-in" present value multiplier of 7.87, the present value for the
future loss of this income stream to age 65 is approximately $118,000.

[232]     As stated
in Rosvold, this is not the end of the inquiry.  The overall fairness
and reasonableness of the award taking into account all the evidence as well as
any additional contingencies that may apply must still be considered.  Some
contingencies which spring to mind include:

·      
the possibility that Dr. Rickards’ prognosis is actually
realized, that the MBB/RFR treatment does indeed eliminate or improve the
plaintiff’s pain condition such that he can assume full-time work, whether a
year from now or some other time;

·      
the countervailing possibility referred to in the Morland
case of continued pain taking its toll and reducing the plaintiff’s ability to
continue even part-time work at some time in the future;

·      
the possibility that, whether as a result of economic recessions
similar to 2008 or otherwise, UPS might choose to scale back or even eliminate
operations in Vancouver such that the plaintiff may find himself seeking less
remunerative employment elsewhere.

[233]     In my
opinion, the first contingency is the most significant.  Dr. Rickards’ own
recovery is a testament to the efficacy of the procedures he advocates and
while Dr. Caillier has not known patients who are completely pain-free as
a result of the procedures, she does acknowledge they are often effective at
least in reducing mechanical back pain.

[234]     The case
law instructs that real and substantial possibilities are weighed according to
the percentage chance of their occurrence in light of all the evidence. Frankly,
determining such percentages in this case is an almost impossible task and
certainly little evidence has been tendered to inform this part of the analysis. 
It truly is "crystal ball gazing" of a non-scientific nature. Meghji
urges the court to apply considered and careful judgment in weighing
possibilities but there is no formula for that exercise.  In many cases, such
weighing is often nothing more than speculation informed by the Court’s sense
of fairness based on experience, common sense and what has occurred in other similar
cases.

[235]     In all the
circumstances, it is my judgment the aforementioned $118,000 should be reduced
by approximately 25% to reflect the cumulative, offsetting values of the
contingencies in question.  Hence, the amount I award for loss of future income
earning capacity to age 65 is $85,000.

[236]     That is
not the end of the matter; the claim for loss of earning capacity on the
plaintiff’s part after the age of 65 must be considered.  The plaintiff
suggests a "capital assets" approach that would see an award equivalent
to two years’ salary.  No rationale is provided for that number and while it is
certainly true as noted in Pallos that some courts have awarded amounts
equivalent to one or more years of lost salary, the origins and rationale for
such amounts is usually unstated and is difficult to discern.

[237]     The two-step
analysis referred to above is still applicable.  The first question is whether
as a result of my findings as to the future impact of the plaintiff’s injuries
there is a substantial possibility that he will lose the opportunity to earn
income in his late 60s/early 70s that he would otherwise have been able to
enjoy.  If so, then the present value of that loss has to be determined.

[238]     Commonly,
in many of these personal injury cases, the parties adduce expert evidence
respecting vocational aptitude and physical capacity evaluations, statistics
related to workplace demographics and occupational trends, economic
forecasting, and the like.  Such evidence might possibly be the basis for some
informed speculation as to what any particular plaintiff, or at least a similar
demographic cohort, might do in the future in terms of employment activities
beyond the "traditional" retirement age of 65.

[239]     No such evidence
was presented in this case.  I have already found that the plaintiff is capable
and will continue to be capable of work notwithstanding his injuries.  He
suggests he has a "slim realistic chance" of landing "employment
of consequence" after leaving UPS "particularly given his lack of
Canadian education".  No evidentiary basis was tendered for these
propositions nor, indeed, for an evaluation of any such "loss"
arising from same.

[240]     Having
said that, I agree common sense dictates that a person living with some level
of ongoing pain, even if manageable, has a meaningful possibility of being less
able to earn income in the future.  This is true whether the condition cumulatively
takes its toll on a person’s ability to work, or whether the condition makes a
person less attractive to potential employers.  These are realistic and
substantial possibilities that could very well have a detrimental effect on the
plaintiff’s ability to earn income after age 65.  This situation is thus more
akin to Pallos than Perren.

[241]     In the
result, some award for loss of income earning capacity past the age of 65 is
warranted.  The problem is determining how much.  There is simply no evidence,
expert or otherwise, before me that permits any informed analysis.  But I do
not think it would be fair to simply dismiss this claim outright.  Rather, I am
inclined to award a modest amount in recognition of the possible future loss in
that regard in the sum of $15,000.

[242]     In the
result, the total award for loss of future earning capacity in this case is
$100,000.

SPECIAL DAMAGES

[243]     Special
damages have been agreed between the parties and the amount of $2,087.05.  I
award that amount under this heading together with appropriate court order interest
at registrar’s rates.

COST OF FUTURE CARE

[244]     The
principles applicable to the assessment of claims and awards for the cost of
future care might be summarized as follows:

· the purpose of any award is to provide physical
arrangement for assistance, equipment and facilities directly related to the
injuries;

· the focus is on the injuries of the innocent party… Fairness
to the other party is achieved by ensuring that the items claimed are
legitimate and justifiable;

· the test for determining the appropriate award is an
objective one based on medical evidence;

· there must be:  (1) a medical justification for the items
claimed; and (2) the claim must be reasonable;

· the concept of "medical justification" is not
the same or as narrow as "medically necessary";

· admissible evidence from medical professionals (doctors,
nurses, occupational therapists, et cetera) can be taken into account to
determine future care needs;

· however, specific items of future care need not be expressly
approved by medical experts…… It is sufficient that the whole of the
evidence supports the award for specific items;

· still, particularly in non-catastrophic cases, a little
common sense should inform the analysis despite however much particular items
might be recommended by experts in the field; and

· no award is appropriate for expenses that the plaintiff
would have incurred in any event.

See Andrews v.
Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Krangle v. Brisco,
2002 SCC 9; Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), aff’d
(1987), 49 B.C.L.R. (2d) 99 (C.A.); Aberdeen v. Langley Township, 2008
BCCA 420; Gregory v. ICBC, 2011 BCCA 144; Jacobsen v. Nike Canada Ltd.
(1996), 19 B.C.L.R. (3d) 63 (S.C.); Penner v. ICBC, 2011 BCCA 135; Shapiro
v. Dailey, 2012 BCCA 128.

[245]     Dr. Caillier
testified that exercise is the key to managing chronic pain.  She recommended five
to six sessions per year with a kinesiologist to ensure an appropriate exercise
regimen is in place and varied as necessary.  She also recommended access to a
gym environment for the rest of the plaintiff’s life.

[246]     Dr. Rickards
agreed with Dr. Caillier’s recommendations respecting conditioning and
exercise.

[247]     The expert
economist provided a report to the court setting out future cost of care
present value multipliers.  No challenge was made to that report.

[248]     The claim
for kinesiology costs is based on the amounts charged for the pre-trial
kinesiology sessions undertaken by the plaintiff pursuant to Dr. Caillier’s
earlier recommendations.  No challenge is made to those costs.  The present
value of those costs is $1,421.59, which is reasonable and is the amount I
award under this heading.

[249]     The
defendant contests the plaintiff’s entitlement to any award for gym membership,
pointing out that the plaintiff has not actually purchased any such membership
in the past and therefore almost certainly will not do so in the future.  I
disagree with this position.  The plaintiff did not join a gym simply because he
could not afford to.  If an award is made under this heading, I am satisfied
that the plaintiff will expend the monies for that purpose.  I am also
satisfied that such a gym membership is both medically justified and
reasonable.

[250]     Evidence,
admittedly hearsay, was tendered respecting the cost of various facilities in
the vicinity of the plaintiff’s residence in New Westminster.  The numbers
cited were not challenged and appear reliable.  The court is, in any event,
familiar with these sorts of costs as awarded in many other cases.

[251]     A reasonable
annual cost for gym membership is $450.  Applying the appropriate multiplier
set out in Mr. Benning’s report yields a present value of these future
lifetime costs in the amount of $10,000 (rounded), which is the amount I award
under this heading.

[252]     The next
item relates to the costs associated with future MBB/RFR treatments.  The
plaintiff took the position that if such costs are to be awarded, then it
should be on the basis of the cost of private health care.  He cited Engqvist
as authority for the proposition.

[253]     As
indicated earlier, the defendant has since conceded not only that these
treatments are warranted to help alleviate the plaintiff’s chronic pain
condition but also that the costs should be paid on the basis of private health
care.

[254]     The
plaintiff did not provide any submissions respecting the amount that should be
awarded under this heading.  The defendant submitted that the sum of $10,000
would be appropriate.

[255]     In Villing
the court stated:

[47]      As to the cost of
future care, the defence concedes the wisdom of allowing for the cost of one
MBB procedure at $800, and one rhizotomy procedure at a cost of $7,000, in a
private clinic setting so that Ms. Villing can be assured of at least one
procedure before she graduates.  In my view, given the evidence as to the
length of wait times, it is appropriate to make allowance for two private
rhizotomy procedures in the future.  After that, the plaintiff may have a
better idea of the effect of the procedure upon her, of how long the procedures
will have an effect and her recovery time so that she can book future
procedures well in advance, minimize the length of time she will have to be
subject to recurring back pain while she awaits treatments and minimize the
inconvenience of her schedule being disrupted.  I allow the sum of $14,800
for private procedures.

[256]     I agree
with these observations and find them equally applicable to the present case.  I
award the sum of $15,000 for future private MBB/RFR treatment procedures.

[257]     The total
award for cost of future care is therefore $26,421.59 rounded to $26,500.

SUMMARY

[258]     In
summary, I award damages to the plaintiff in the following amounts:

[259]    
Court ordered interest is awarded at registrar’s rates on all awards for
pecuniary loss to the date of trial.

[260]     Costs will
follow the event unless there are any particular circumstances that should be
brought to my attention, in which event the parties may make further
submissions in writing within 30 days.

"KENT J."