IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151214

Docket: M127157

Registry:
Vancouver

Between:

Daniel
Bryan Anderson

Plaintiff

And:

Bruno
Rizzardo

Defendant

Before:
The Honourable Madam Justice Ballance

Reasons for Judgment

INTRODUCTION

[1]            
In the mid‑morning of December 16, 2010, the plaintiff, Daniel
Anderson, was stopped in a construction zone on Highway 1 when a Ford Ranger
SUV, driven by the defendant, crashed into the back of his Jeep Wrangler (the
“Accident”).

[2]            
The defendant has admitted liability for the Accident.

[3]            
Many of the basic facts of this case are not contentious and some were established
by an agreed statement of facts exhibited at trial.  Primarily in dispute are the
nature and severity of Mr. Anderson’s injuries stemming from the Accident
and their effect on his earning capacity.  Also controversial is whether Mr. Anderson
has failed to mitigate his losses.

BACKGROUND

·       Early
Days

[4]            
Mr. Anderson was born on February 3, 1981 and grew up in North
Vancouver, British Columbia.  He was an active youth, participating in several
sports such as snow skiing at a competitive level, hockey and water skiing.

[5]            
For most of high school, Mr. Anderson was an honour roll student
and as a teen, developed an interest in business.  In his senior high school
year, he won an award for his entrepreneurship capability.

[6]            
After graduating from high school in 1999, Mr. Anderson attended a
business administration program at a local college.  He performed well in his
business classes but found the demands of the compulsory English coursework
difficult.  His cumulative grade point in his first year fell below the class
average, which precluded him from enrollment in his preferred courses for the following
year.  That dampened his motivation to continue in the program and he decided
to leave school.

·       Rogers
Communications

[7]            
In 2001, Mr. Anderson landed his first job in the wireless
telecommunications industry with Rogers Communications.  He started in the
customer call centre and was promoted through various roles, eventually landing
a position within the business support group.

[8]            
Mr. Anderson distinguished himself as being particularly skilled at
resolving the more challenging issues that arose for Rogers’ business customers. 
By 2005, he was acting as the “unofficial" manager of a team of
approximately five other employees within the niche business‑to‑business
support department.

[9]            
Guy Almog had an ownership interest in a separate Rogers’ dealership
called Cellular Solutions West (“Cell Solutions”).  He and Mr. Anderson
first crossed paths in 2004.  Mr. Almog was impressed by the extreme precision
of Mr. Anderson’s work on the financial and business side, and by his
consistently high level of performance generally.  He soon became Mr. Almog’s
preferred “go‑to guy” in the business group.

[10]        
Darrell Mitchell repeatedly stood out as the top business sales representative
of the Rogers’ dealerships for Western Canada.  Like Mr. Almog, he also sought
out Mr. Anderson to address the needs of his business clients because he was
usually able to resolve the client’s concerns during the initial call.  Mr. Mitchell
regarded Mr. Anderson as a “talented guy” who did a “fabulous” job.

·       Cell
Solutions

[11]        
In about 2006, Mr. Almog recruited Mr. Anderson to join him at
Cell Solutions in a managerial role.

[12]        
While at Cell Solutions, Mr. Anderson continued to develop a unique
price plan analysis system that he had created during his employment with
Rogers.  His analysis provided a detailed report of the cost savings for potential
customers if they switched to Cell Solutions.  His analysis armed the Cell
Solutions’ sales team with the hard data necessary to win over clients.  Mr. Anderson
eventually emerged as a leader of the business‑to‑business
component of Cell Solutions.  He delegated work, managed staff, helped to create
successful sales presentations by customizing his price plan analysis to the
prospective customer and attended sales calls.

[13]        
As had been the case when he was with Rogers, Mr. Anderson spent
the majority of his work day in a sedentary position, sitting at his desk or seated
in front of his computer working predominately on detailed spreadsheets and
analyses.

[14]        
The evidence establishes that Mr. Anderson played a crucial role in
the significant market growth and overall success enjoyed by Cell Solutions.  His
contributions to the sales team assisted Cell Solutions to double its sales
without having to add new sales staff, and helped it achieve recognition as the
Business Dealer of the Year in the category of small‑medium business
dealer.  In 2008, Mr. Anderson was recognized as the Sales Manager of the Year
from among approximately 15 candidates.

[15]        
 Mr. Almog (who was not cross‑examined) credibly described Mr. Anderson
as a committed, loyal and dedicated employee whose work product was excellent
and who performed his duties efficiently and punctually.  He sensed no lack of
motivation on Mr. Anderson’s part.  In terms of personality, he described Mr. Anderson
as a quiet and introverted man with an even mood.

[16]        
During Mr. Anderson’s tenure at Rogers he had earned income of
about $50,000 per year.  At Cell Solutions his annual earnings climbed to
nearly $85,000.

[17]        
It was within this general timeframe that Mr. Anderson sold the condominium
that he had purchased about three years earlier and, along with his then
girlfriend, acquired a house in East Vancouver (the “Main Street House”).  With
the assistance of his stepfather, Mr. Anderson carried out extensive
repairs and renovations of that property, including gutting the basement and installing
a two‑bedroom suite.

[18]        
In about 2009, Cell Solutions was sold as a result of the consolidation
of the independent Rogers’ dealerships.  Shortly thereafter, Mr. Anderson
found himself out of a job.

·       Preston
Mobility Inc.

[19]        
Around the time that Cell Solutions was sold, Mr. Mitchell had
become increasingly dissatisfied with changes that had been implemented at
Rogers, including the reduction to the sales commissions and the lack of
service backup being provided to his customer base.  Recognizing that these
circumstances might afford him a business opportunity, Mr. Anderson approached
Mr. Mitchell with the idea of the two of them joining forces with Mr. Almog
to establish their own dealership with Bell Mobility (“Bell”), a competitor of
Rogers.

[20]        
The business prospect was appealing to Mr. Mitchell.  However, because
he did not “click" with Mr. Almog, he decided that the proposed
venture was not a good fit.  Holding keen on collaborating with Mr. Mitchell,
Mr. Anderson continued to raise the subject with him and his persistence
eventually paid off.  In late 2009, Mr. Anderson and Mr. Mitchell decided
to launch their own Bell dealership.  They were joined in their endeavor by
David Barber who would provide the requisite technology expertise.  The three men
agreed that they would each invest a certain amount of capital for which they
would receive a proportionate equity interest in the new enterprise.  They were
committed to working long hours and doing whatever it took in order for Preston
to become a success, based on a five-year outlook.  Mr. Anderson testified
that he hoped to build Preston over a ten‑year period and then divest his
interest for “a few million bucks”.

[21]        
At trial, Mr. Anderson intimated that he was able to persuade Mr. Mitchell
to come aboard even though it meant that Mr. Mitchell would suffer a
significant decrease in earnings in the short term as they built their
dealership.  He likewise suggested that he had permitted Mr. Mitchell to
have the largest shareholdings and to act as the president and controlling mind
of the new undertaking.  I find that Mr. Anderson overstated the
importance of his role in the establishment of the new partnership.  The
evidence is clear that he needed Mr. Mitchell far more than the converse.  It
was obvious to all of them that Mr. Mitchell was the rainmaker of the trio
and was giving up significant remuneration in the short term to partake in the
endeavour.  It was understood that, for the most part, Mr. Mitchell would
be running the show.  One of the ways that reality was reflected was in the
fact that their newly formed dealership, Preston Mobility Inc. (“Preston”), was
named after Mr. Mitchell’s infant son.

[22]        
There was much to do within a relatively tight timeline to bring Preston
into operation.  The tasks included preparing a comprehensive business plan,
obtaining approval from Bell, securing office space and developing a corporate
philosophy, marketing strategy and website.  One of Mr. Anderson’s critical
responsibilities at this stage was to prepare a detailed expense and revenue
budget for the new operation aimed at maximizing profitability.

[23]        
In the lead up to the opening of Preston, Mr. Mitchell’s wife
unexpectedly took ill.  Mr. Mitchell was thus unable to give his undivided
focus to setting up the business, and Mr. Anderson stepped into the breach. 
In his words, he “hit the ground running", devoting ten to 12 hours a day
to the launch of Preston.  He described his level of commitment to the business
as 110%.

[24]        
Preston opened its doors as a licensed Bell dealership on April 10, 2010
with Mr. Mitchell at its helm as president and Mr. Anderson as the director
of operations.  The work environment was competitive and fostered high
achievement.  Working steadily between 50 and 60 hours per week, Mr. Anderson
developed and perfected systems to maximize efficiencies in Preston’s
operations.  He took responsibility for the critical backend financial
analysis, the tracking of inventory, running the payroll, and the continued
preparation of his price plan analyses which highlighted the savings to be
gained by clients who switched to Preston.  Another essential tool developed by
Mr. Anderson was a point‑of‑sale system to track sales and
reconcile the various types of commissions to be received by Preston.  Those
systems were fundamental to Preston’s success and are still used by it today.  Neither
Mr. Mitchell nor Mr. Barber had the know‑how to create them.

[25]        
At the same time, Mr. Anderson conceived and operated, through his
own holding company, a used cell phone/phone hardware program designed to
attract new clients by buying back their existing equipment to offset the
penalties for switching their cell phone providers to Preston.

[26]        
I accept Mr. Mitchell’s uncontradicted testimony that Mr. Anderson’s
work behind the scenes helped Preston become a valuable going‑concern.

[27]        
Neither Mr. Mitchell nor Mr. Barber had any concerns about Mr. Anderson’s
ability to satisfy the demanding work expectations they had set for themselves at
Preston, his work ethic more generally, or the quality of his work product.  That
changed after the Accident.

·       The
Accident

[28]        
The defendant estimated that he was travelling at a speed of
approximately 78 to 79 kilometers per hour immediately before the Accident and
admitted that he was only able to apply his brakes shortly before his vehicle rear‑ended
Mr. Anderson’s Jeep.  When struck, Mr. Anderson’s vehicle was propelled
forward a distance of about one and a half car lengths and collided with the car
in front.  In the result, he sustained two impacts in the Accident.

[29]        
Emergency personnel arrived at the scene.  Mr. Anderson felt
somewhat dazed or “buzzed” but was not taken to the hospital.  He was able to
drive away from the Accident site and continued along to the office.  He
described feeling a tingling sensation on the skin of his upper body for the
rest of that day.  He soon found that he was too distracted to work that
afternoon and excused himself for the balance of the day.

·       Aftermath
of the Accident through 2011

[30]        
By the next morning, the tingling feeling on Mr. Anderson’s skin
had been overtaken by a general stiffness and restricted movement in his low
back.  He likened his symptoms to an elevated form of post‑skiing
stiffness.  His low back pain was predominately on the right side above his
hips.  The pain was uncomfortable but not debilitating.  Mr. Anderson also
experienced a sharp stabbing pain on the left side of his neck, as though a
needle had been injected there and an uncomfortable “crunchy” or "clunky” feeling
just below his shoulder blade on the right side.  Shortly after the Accident,
he also began to experience headaches, sometimes presenting in a cluster, which
lasted for about one to two hours at a time.

[31]        
Mr. Anderson did not consider his symptoms to be particularly
alarming in light of how hard his vehicle had been struck and given that he had
been subjected to two impacts.  Indeed, he considered himself fortunate that
his injuries did not appear to be much worse.

[32]        
Mr. Anderson had only seen a doctor a handful of times in the ten years
immediately preceding the Accident.  As part of his job duties with Rogers in
2006, he was required to drive long distances to various retail stores.  After
several months of doing so, he experienced a “pinch” in his low back area,
mostly on the right side.  The evidence establishes that his low back discomfort
completely resolved with a few massage treatments.  In mid‑2009, Mr. Anderson
experienced similar low back symptoms.  Once again they resolved after three or
four sessions of massage.

[33]        
After the Accident, Mr. Anderson returned to massage therapy in
late January 2011.  In the weeks following the Accident, many of his symptoms
improved, and he expected they would continue to do so just as his back pain had
in 2006 and 2009.  The stabbing pain on the left side of Mr. Anderson’s
neck abated considerably and resolved fully within about six weeks’ time.  His
low back symptoms and his headaches, neither of which were disabling, also disappeared
within that timeline.

[34]        
Although his headaches, low back pain and left neck symptoms subsided
and ultimately resolved altogether, the crunchy feeling in the region of his
right shoulder blade/trapezius region did not improve.  Within the first two
months or so of the Accident, he began to notice an occasional throbbing or
spasm‑like pain in that same area that also implicated the right side of
his neck.  Initially, Mr. Anderson was only aware of the spasm or intensified
pain in those regions every week or ten days.  The duration of those symptoms
was relatively fleeting; they last only for about 15 minutes, and the pain was mild
to moderately severe.  He testified that even though those symptoms persisted
into the spring of 2011, he was not overly concerned because they surfaced
infrequently and were often manageable by taking Advil.  As well, despite his
right‑sided neck and shoulder/trapezius symptoms, Mr. Anderson
continued to be fully occupied with Preston and able to continue to devote long
hours to his work without much difficulty.

[35]        
Between January and May 2011, Mr. Anderson received five massage
treatments.  He testified that in June 2011, the intensity and frequency of the
throbbing spasm‑like pain in his right neck and shoulder/trapezius area
heightened.  The crunchy feeling in that area was still present most of the
time but continued to manifest more in the background and cause him less pain
than the other symptoms.  He began to feel that he had to put in additional
hours each day just to keep up with his usual workload; his energy and mood
started to decline.

[36]        
Mr. Anderson is an intensely private person.  He had not socialized
with Mr. Almog when they worked together at Cell Solutions and did not
fraternize with his partners at Preston.  In keeping with his introverted
nature, he chose not to disclose much information about his symptoms in the
aftermath of the Accident and, indeed, tried to conceal them from his partners.
Despite Mr. Anderson’s efforts to hide his difficulties, Messrs. Barber
and Mitchell noticed changes.

[37]        
Mr. Barber was on the road servicing customers most of the time and
had limited face‑to‑face interactions with Mr. Anderson. 
Still, he credibly recalled that in the second half of 2011, he observed Mr. Anderson
to be shifting around in his chair at a meeting, appearing to be in physical discomfort.
Likely around the same time, he also detected a negative change in Mr. Anderson’s
overall demeanour in the office.

[38]        
Mr. Anderson has an understated demeanour and an even temperament. 
In contrast, Mr. Mitchell is a forceful, “type A" personality.  In Mr. Mitchell’s
eyes, one of Mr. Anderson’s prime attributes was that he offered a
complementary and balanced influence to Mr. Mitchell’s work style.  Within
a few months of the Accident, Mr. Mitchell started to notice problems with
Mr. Anderson’s job performance.  He discovered errors in Mr. Anderson’s
work product and could see that he was increasingly working tighter to the deadline.
When Mr. Mitchell raised these concerns with him, Mr. Anderson stubbornly
pushed back in a way that Mr. Mitchell had not encountered before and at
times became confrontational in their discussions.  Mr. Mitchell also found
that Mr. Anderson tended to lose focus on the tasks at hand, his energy
seemed depleted and his mood had become increasingly downcast.  Additionally,
he recalled that Mr. Anderson complained about feeling discomfort while
doing his work at the computer.

[39]        
It was Mr. Mitchell’s perception that Mr. Anderson’s
shortcomings in the work place progressively worsened, which led to frequent
clashes between them, particularly in the latter part of 2011.  It was in that
period that Mr. Mitchell offered to buy out Mr. Anderson’s
shareholdings in Preston, which Mr. Anderson refused.  The evidence is
clear that these two men had never before experienced conflicts of this degree
or character.

[40]        
Mr. Anderson could sense the mounting strain in his relationship
with Mr. Mitchell.  As his pain persisted and intensified, he lost the
patience and energy to have the kind of healthy debates concerning Preston’s
business and future direction that he and Mr. Mitchell ordinarily engaged
in before the Accident.  Nevertheless, Mr. Anderson did not tell either of
his partners that his injuries were the reason that he was having trouble at his
job.

[41]        
By late 2011 and continuing into 2012, Mr. Anderson was coming into
the office later and leaving earlier, opting to do more of his work from his
home.  His adjusted work schedule really “stuck out" in Mr. Mitchell’s
mind.  These changes did not improve Mr. Anderson’s symptoms.  Rather than
completing his work in a typical work day at the office (i.e. 8:00 a.m. to 6 p.m.
or thereabouts), he was spreading his work throughout the day and the evenings
to allow for frequent breaks as a means of addressing his pain.  He testified
that he felt like his whole life was “one long work day” and his symptoms did
not appreciably improve by working from home.

[42]        
According to Mr. Anderson, he clung to the assumption that his
symptoms would resolve as soon as he took the time to get proper treatment.  He
explained that in September 2011, he realized that he had consumed a jumbo
bottle of extra strength Advil in just a matter of months.  With that, came the
insight that he needed to stop procrastinating in getting medical attention for
his symptoms.

[43]        
By this time, Mr. Anderson’s family doctor had retired.  He says
that in late 2011, he began searching for a new family doctor.  He testified
that based on his experience with his short‑lived low back pain in 2006
and 2009, he believed that once he obtained a referral to an appropriate
specialist, a few treatments would get him back on track.

[44]        
Mr. Anderson’s initial cold calls to various medical offices proved
fruitless as they were not taking new patients.  By chance, he heard a radio advertisement
that a medical clinic was accepting new patients.  He called the clinic in
December 2011 and made an appointment to see Dr. Barber, a family doctor, on
March 7, 2012, a full 15 months after the Accident.

·       Events
in 2012

[45]        
In March 2012, Dr. Barber referred Mr. Anderson to Dr. Ian
Murray, a physiatrist, and an appointment was scheduled for April 10, 2012.  Mr. Anderson
claims that in the months immediately before his first visit to Dr. Murray,
his neck and shoulder/trapezius symptoms worsened considerably.

[46]        
Dr. Murray recommended that Mr. Anderson undergo a course of
treatments involving manipulation of his upper spine and told him he anticipated
that the symptoms would likely resolve in a matter of six to eight treatments.  Eleven
adjustments were performed by Dr. Murray between April 2012 and the end of
January 2013.  They served to decrease Mr. Anderson’s pain levels and the
frequency of his spasms for days and sometimes weeks at a time.  Mr. Anderson
testified that his symptoms would inevitably re‑emerge in a pattern of
building intensity and frequency over time.  Dr. Murray also instructed Mr. Anderson
with respect to exercises he should perform to strengthen his neck muscles.

[47]        
In addition to receiving treatments from Dr. Murray, Mr. Anderson
began weekly sessions with a personal trainer, which he had never done before.  Those
sessions spanned a period of three to four months.  The trainer was not a
physiotherapist or a kinesiologist.  Mr. Anderson also took steps to
improve his overall health by changing his diet.  Further, he resumed massage
therapy in 2012, receiving one treatment in May and the other in June.

[48]        
Mr. Anderson testified that in late 2011 or so, he occasionally
turned to smoking marijuana in the evenings in the hope that it would improve
his declining mood and help him to relax and fall asleep.  By about December
2012, he was smoking it every night.

[49]        
As mentioned, the original shareholders of Preston were Messrs. Mitchell,
Anderson and Barber.  Their shareholdings fluctuated to reflect an additional
capital contribution made by Mr. Mitchell, and the inclusion of his sister
as a stakeholder.

[50]        
In the early part of 2012, Mr. Anderson sold the Main Street House that
he had co‑owned with his former girlfriend from whom he had separated in
2009.  He realized a tidy profit from that transaction.  In about May 2012, he
used approximately $100,000 of his share of the sale proceeds to exercise an
option to acquire additional stock in Preston.  In the result, Mr. Anderson’s
shareholdings in Preston increased from approximately 15% to 20% or 22%.

[51]        
Despite his regular sessions with a personal trainer and the symptomatic
relief provided by massage therapy and Dr. Murray’s treatments, Mr. Anderson
testified that he continued to struggle with his symptoms.  Even though he was
spending more time working from home where he had the flexibility to take
breaks to stretch, he felt drained and in pain.  Mr. Anderson became aware
that he was not meeting Mr. Mitchell’s expectations of him and, while he
was embarrassed about underperforming his duties, he felt he had nothing more
to give to his job.  Friction with Mr. Mitchell escalated and Mr. Anderson
began to feel as though he was trapped in a dark tunnel.  He sensed he was
losing his grip at Preston and he worried about his future.  He felt his
current work situation and lifestyle were not sustainable and that a drastic step
was necessary.

[52]        
By the fall of 2012, Mr. Anderson was desperate to make a change.  Preston
was no longer his main priority and he instead turned his attention to taking
an extended trip away.  He explained that planning the trip gave him a positive
focus and helped attenuate his feelings of being lost and without direction.

[53]        
In the late fall of 2012, Mr. Anderson negotiated an arrangement
with his partners whereby he would relinquish his position as the director of operations
and would become a consultant for Preston on an as‑needed basis.  The
evidence establishes that Mr. Mitchell accommodated Mr. Anderson in
this way because some of the key parts of Preston’s operations still depended
heavily on his skill and input.  Shortly thereafter, Mr. Anderson
announced to his partners that he had decided to travel to South America.  The
evidence indicates that Mr. Anderson did not provide his partners with any
particular reason for his extended absence from the country and, strangely,
they did not ask for one.  When questioned about his knowledge as to why Mr. Anderson
had gone to South America, Mr. Barber referenced possible “stress” or
“pressure”, but confirmed that he had no firm impression as to Mr. Anderson’s
motives or his underlying reasons.

[54]        
The partners agreed that during his travels, Mr. Anderson would
continue to work as a consultant for an hourly rate not to exceed a maximum charge
of $2,500 per month.  Despite Mr. Anderson’s impending shift away from
Preston, he worked diligently to appropriately hand‑off his duties to
other employees, and to ensure that the transition went as smoothly as possible.

·       South
America and Other Events in 2013

[55]        
Mr. Anderson underwent his final three sessions with Dr. Murray
in January 2013.  The following month he embarked on an open‑ended trip
to South America.  He travelled through several countries carrying a backpack
that weighed about 40 pounds.  He maintained his corporate email address and
performed a relatively modest amount of consulting work for Preston during his
travels.

[56]        
There was remarkably little evidence about how Mr. Anderson
occupied his days and weeks in South America.  As for his symptoms, he testified
that their intensity and frequency decreased markedly and were well‑managed
with the occasional use of Advil although they would flare up when he took long
bus rides or worked at his computer for prolonged periods.  Mr. Anderson
felt better travelling throughout South America than he had at any other time
after the Accident and assumed that his travels, combined with the treatment he
had received in 2012 and early 2013, were having the desired affect.

[57]        
Mr. Anderson says he did not smoke any marijuana while in South
America because he did not want to get himself into trouble while there and, in
any event, the sequelae of the Accident was far more manageable during his
trip.  He did not seek out any medical attention or treatment for the symptoms
that he attributes to the Accident.

[58]        
Near the end of his trip, Mr. Anderson struck up a friendship with Fernanda
Henao who resides in Medellin, Columbia.

[59]        
Mr. Anderson returned to Vancouver in July 2013.  The primary reason
was to attend his examination for discovery and to undergo an independent
medical examination, both in relation to this litigation.

[60]        
According to Mr. Anderson, he felt renewed and optimistic that his
much improved symptoms had stabilized and he wanted to reintegrate with Preston. 
He was partly motivated by a feeling that he had let Mr. Mitchell down and
wished to rebuild their business relationship.  Although Mr. Anderson’s
former position at Preston had been filled, there was a mutual interest in him assuming
a more formal consulting role.

[61]        
Effective September 1, 2013, Mr. Anderson’s consultant role was
adjusted.  The new arrangement contemplated him working up to 80 hours per
month at a rate of $31.25 per hour.

[62]        
Mr. Anderson testified that within mere weeks after resuming working
at a computer on a regular basis, the spasms resurfaced and quickly became a
daily problem, although they were not as intense as when he left for South
America.  He resumed smoking marijuana in the evenings to relax.

[63]        
Dr. Murray had since retired.  Mr. Anderson returned to his
massage therapist and, by the end of October 2013, had received about nine
treatments.  He testified that his symptoms eased with each session but, as had
been the case previously, the symptomatic relief was only temporary and did not
lead to sustained improvement.

[64]        
In the same timeframe and by happenstance, Mr. Anderson met a man named
Cesar from Medellin, Columbia.  He persuaded Mr. Anderson that there existed
a solid business opportunity in Medellin to sell used cell phones.

[65]        
For Mr. Anderson, who claims he was finding it difficult to work even
20 hours a week because of his pain, Cesar’s business idea appeared to offer a
good lifestyle and work option, given the low cost of living in Columbia and
its close proximity to friends he had made in his previous travels.  Moreover
and importantly, Mr. Anderson and Ms. Henao had, by this time,
developed a strong online friendship, largely as a result of their daily
Facebook communication.

[66]        
Mr. Anderson relocated to Columbia in late October 2013 and has been
living there since then.

·       Life
in Columbia

[67]        
The evidence shows that since November 2013, Mr. Anderson has
continued to work as a consultant for Preston in the range of 50 to 80 hours
per month at the rate of $31.25 per hour.  The volume of work fluctuates and has
been declining somewhat in recent months.

[68]        
Mr. Anderson and Ms. Henao began living together in January
2014.  The next month, Mr. Anderson and Cesar opened their storefront.  Interestingly,
given that Mr. Anderson testified that the business opportunity with Cesar
was a prime factor motivating his return to Columbia, as it turned out, he invested
little time in the endeavor, working on it from his home for as few as five
hours per week.  After the cell phone resale business had been in operation for
approximately three months, the Colombian government introduced regulations that
made it unfeasible for Mr. Anderson to continue.  The evidence establishes
that he made very little money to speak of from that venture.

[69]        
Through the B.C. company that he incorporated in 2009, Mr. Anderson
continued to be engaged in the small sideline of selling cellular phones and
hardware that he had purchased from Preston.  I am satisfied that this endeavor
generated modest income only and, over time, did not even justify the cost of
maintaining the company.  Accordingly, in October 2014, Mr. Anderson
dissolved his company and withdrew its retained earnings of roughly $6,000.

[70]        
After completing university courses in fashion design some two months before
trial, Ms. Henao has been at home with Mr. Anderson practically every
day.  She became aware that he had sustained injuries from the Accident when
she asked him about his regular use of “pain pills".  She testified that
in a typical day, Mr. Anderson takes their dog for a walk each morning and
then works in an open office space at home from about 8:00 a.m. until 1:00 or
2:00 in the afternoon.  Ms. Henao says that he frequently appears very tired
when he finishes his work.  After work, he usually rests, watches television,
plays video games or goes for a walk.  They sometimes enjoy movies together at
the local theatre or go out for meals.  She recalled taking a few lengthy car
trips with Mr. Anderson which left him looking tired and in pain after
roughly 40 minutes of continuous driving.

[71]        
Mr. Anderson’s evidence is that the crunchy feeling in his right
shoulder/trapezius continues to percolate in the background most of the time.  His
right-sided neck and shoulder/trapezius spasms and pain wax and wane depending
on his activities.  He elaborated that if he is seated in front of his computer
for two to three hours or more, he ordinarily requires extra strength Advil to cope
with his pain.  He has taken to ingesting approximately 20 Advil pills prophylactically
each week.  He also regularly uses a Spanish‑made muscle pain cream to
alleviate his symptoms.

[72]        
Mr. Anderson testified that he continues to do the exercises to
strengthen his neck taught to him by Dr. Murray at least every second day,
and performs self‑massage and pressure point release to relax the tight
muscles in his problem areas.  He also self‑manipulates his neck
throughout the day, trying to mimic the cervical adjustments performed by Dr. Murray.

[73]        
Ms. Henao often sees Mr. Anderson massaging his right
shoulder/trapezius area and the right side of his neck; she sometimes massages
him in those areas as well.  She has also observed him manipulating or “cracking”
his neck several times a day.

[74]        
Mr. Anderson returned to Vancouver in the summer of 2014 to attend a
number of independent medical examinations.  In July and August, he resumed
massage therapy and tried nine treatments of laser therapy combined with
chiropractic adjustments.  He testified that the laser/chiropractic modalities
offered him negligible relief, but that he obtained limited therapeutic benefit
from the massage.

[75]        
Over the course of the past year, Mr. Anderson says he has
succeeded in keeping his pain from reaching the level of intensity that he
claims puts him in a “bad place” in 2012.  He says that he has become aware that
prolonged sitting, including sustained stationary work at his computer, is the
source of the aggravation of his spasms and the throbbing pain in his right
neck and shoulder/trapezius area.  In the year leading up to trial, he has not
been able to work productively more than six or so hours in a single day which
he says he accomplishes by spreading out his tasks over a 12‑hour period. 
His evidence on this point conflicted with Ms. Henao’s.

[76]        
Mr. Anderson does not have a firm plan for how long he might
continue to live in Columbia or maintain his role as a consultant for Preston.  He
explained that ideally his future desire is to re‑establish himself as
the director of operations at Preston but he is not optimistic that will come
about.  He has not raised this prospect with Mr. Mitchell or Mr. Barber. 
As well, Preston has hired others to share the vast majority of his former work
duties.  In any event, such a goal is plainly unfeasible for so long as he
resides in Columbia.

[77]        
According to Mr. Anderson, at this stage he is better able to
manage his symptoms and lifestyle by living in Columbia where he can get by working
fewer hours in a flexible environment and still earn enough to afford a
satisfactory lifestyle.

[78]        
Aside from his consulting work, Mr. Anderson claims to be on the
lookout for other business opportunities.  He was vague on what his search entails
beyond occasionally perusing unspecified websites for businesses for sale and
similar opportunities.  Mr. Anderson testified that the job matches
identified by Dr. Powers either held no appeal to him, were not in his
skill set or were not realistic options in light of his injuries.  As he
considers himself to be an entrepreneur, he has not looked for any conventional
employment nor applied for any jobs since the Accident.

·       Mr. Anderson’s
Credibility

[79]        
Mr. Anderson’s demeanour in giving evidence was noticeably
restrained, which I found reflective of his natural discomfort in speaking
openly about his personal life.  While he was a credible witness for the most
part, there were notable exceptions.  For example, the reasons he gave for
moving to Columbia in October 2013 were less than forthcoming and deliberately glossed
over the main factor underlying his decision, namely to pursue his budding relationship
with Ms. Henao.  More crucially, I find that on the core issues of the
manifestation of his lingering neck and shoulder/trapezius symptoms and their
functional impact upon him, Mr. Anderson tended toward exaggeration in his
reporting of them to certain of the medical experts and was at times
inconsistent in recounting such evidence at trial.  Although I do not consider Mr. Anderson’s
shortcomings to justify an across the board rejection of his evidence unless it
is independently corroborated, they call for this Court to assess the
entirety of his testimony with caution.

EXPERT EVIDENCE

[80]        
There is consensus among the medical experts that the Accident caused Mr. Anderson
headaches and soft tissue injuries primarily to his back, neck and right
shoulder/trapezius area.  The central medical issues in dispute are the
severity of his ongoing soft tissue injuries and their prognosis, and whether
he also sustained an injury to the facet joints along certain parts of his
spine.

·       The
Plaintiff’s Experts

a)   
Dr. Cecil Hershler

[81]        
Dr. Hershler has been a practising physiatrist for thirty years.  He
has held teaching positions at the University of British Columbia as a Clinical
Associate Professor in the School of Rehabilitation Medicine and as an Adjunct Professor
in Mechanical Engineering.  At one time, he was an active medical staff member
of the G.F. Strong Rehabilitation Centre.  Dr. Hershler is also a diplomate
in the Canadian and American Academies of Pain Management.

[82]        
Dr. Hershler assessed Mr. Anderson on August 29, 2013.  Among
other things, he observed a slight tendency for Mr. Anderson to stand with
his head tilted forward as though he was smelling a flower.  At trial, Dr. Hershler
explained that individuals with chronic neck pain commonly develop such a stoop
in their upper body and neck.  On examination, Dr. Hershler noted a loss
of approximately 25% of Mr. Anderson’s range and restriction of movement (active
and passive) during rotation of his head to the left, as compared to rotation
to the right.  The restriction appeared to be due to muscle tightness on the
right side of Mr. Anderson’s neck and across his right shoulder.  On
palpation, Dr. Hershler found hard, resistant bands of tissue across the
top of Mr. Anderson’s right shoulder region that were not present in the
corresponding area on the left side.  Other testing yielded normal results.

[83]        
Dr. Hershler diagnosed an injury to Mr. Anderson’s upper
trapezius muscle on the right side and identified the Accident as the cause.

[84]        
As to Mr. Anderson’s prognosis, Dr. Hershler opined that for
the foreseeable future, he would remain symptomatic and that his symptoms would
affect his ability to work.  He further prognosticated:

Almost 3 years have now elapsed since the [A]ccident, but Mr. Anderson
continues to experience symptoms of pain that are related to the muscle injury.

In my own practice, 80% of
patients with similar types of muscular injury take three years to recover,
while another 10% take five years and 10% will have symptoms that persist
beyond five years.  By “recover”, I mean that the symptoms diminish (albeit in
a fluctuating pattern) to tolerable levels and do not affect the function.  Based
on this model, it is likely that Mr. Anderson will remain symptomatic with
respect to his bouts of pain (that will affect function) for at least another
one‑to‑two years, if not longer.  If the symptoms have not changed (50%
chance) significantly within 5 years of the [A]ccident, I am pessimistic with
regard to the symptoms ever resolving.

[85]        
At trial, Dr. Hershler clarified that if, at the four-year mark, Mr. Anderson’s
symptoms remained unchanged, by which he meant that the frequency and intensity
of the symptoms had remained constant and had not fluctuated or changed in any
respect, then he would tend to the view that it was unlikely that they would further
improve.

[86]        
During the assessment, Mr. Anderson told Dr. Hershler that he
felt that he had recovered about 40% since the Accident.  His report was at
odds with his evidence at trial to the effect that after travelling in South
America, his symptoms had substantially improved to the point where he felt
able to try to reintegrate himself at Preston.  On the evidence as a whole, I
find that Mr. Anderson’s portrayal of having achieved only a 40% recovery when
he was seen by Dr. Hershler was overly conservative and substantially understated
his degree of improvement.  I find that Mr. Anderson’s inaccurate self‑report
as to his level of recovery played a role in informing Dr. Hershler’s
prognosis concerning his trapezius injury such that it was more pessimistic
than was warranted.

[87]        
Dr. Hershler commented that ongoing symptoms of pain ordinarily
detrimentally affect a patient’s mood, concentration, focus and sleep, although
Mr.  Anderson had not raised those specific complaints with him.  He
also clarified that it is not unusual for an individual’s persistent neck pain
to worsen over time depending on the nature of the work the individual is
engaged in.  In his view, working more than 40 hours per week in a
predominantly sedentary position would increase the likelihood of pain in Mr. Anderson’s
trapezius muscles and reduce the chances of a full recovery and should, therefore,
be avoided.  Dr. Hershler stressed that having flexibility on the job that
would allow Mr. Anderson to periodically change his posture, move around,
and stretch in his work place, was crucial to his recovery.

[88]        
In cross‑examination, Dr. Hershler was asked to agree that it
is unusual for a person who has been injured in an accident to wait to see a
doctor for a period of close to 15 months, as Mr. Anderson had done.  Dr. Hershler
answered that it would depend on the nature and severity of the injuries, and
whether the person was initially able to manage the symptoms and felt they
could be kept under control.  He added that, in his experience, injured people
tend to cling to the hope that their symptoms will go away with the passage of
time and, in keeping with that mindset, will attempt to address their injuries
on their own for varying periods of time before consulting a doctor.

[89]        
As I will discuss in reference to the evidence of Dr. Stanley Jung,
after Dr. Hershler carried out his assessment, Dr. Jung diagnosed a
facet joint injury to Mr. Anderson’s spine in addition to the soft tissue
injuries to his neck and right shoulder/upper back/trapezius area.  In
contrast, Dr. Hershler had found no evidence of injury to Mr. Anderson’s
spinal regions and did not diagnose a facet joint injury.  At trial, Dr. Hershler
explained that his skill was to identify soft tissue injuries, but not facet
joint injuries, in a clinical setting.  He confirmed that, within the bounds of
his clinical examination of Mr. Anderson, he did not identify an injury to
the facet joints.

[90]        
Dr. Hershler went on to say that he considered his diagnosis of soft
tissue injury to Mr. Anderson’s trapezius as being consistent with a facet
joint injury of the kind that Dr. Murray had assessed as probable when he
examined Mr. Anderson in March 2012.  Dr. Murray did not tender an
expert report and was not called as a witness at trial.  Consequently, his assessment
is not before the Court as opinion evidence or in evidence for the truth of its
contents.  My reference to Dr. Murray’s assessment merely relates to Dr. Hershler’s
answers on this point in cross‑examination.

[91]        
Dr. Hershler stressed the importance of Mr. Anderson participating
in an active rehabilitation program as soon as possible, explaining that the
longer an injured person waits to do so, the more difficult it will be to
achieve full or even partial resolution of one’s symptoms.  He clarified that
by active rehabilitation, he meant that Mr. Anderson should have intensive
and customized personal training sessions with the objective of developing
core-strengthening exercises to follow on his own at home.

[92]        
Dr. Hershler also recommended an intensive course of deep tissue
massage to help break the cycle of Mr. Anderson’s muscle pain, together
with deep laser heat and a topical anti‑inflammatory gel to assist in
pain management.  Although Dr. Hershler could not be certain that any of
his recommendations would lead to a full recovery, in his view they would, at a
minimum, assist with pain management and improve Mr. Anderson’s function.

b)   
Dr. Stanley Jung

[93]        
Dr. Jung is a chiropractic specialist consultant in rehabilitation. 
His clinical practice is by medical referral only with an almost exclusive
concentration on working with patients involved in motor vehicle collisions who
suffer from chronic spine pain.  Dr. Jung is a Fellow of the College of Chiropractic
Rehabilitation Sciences and of the American Board of Disability Analysts.  He
is a Certified Independent Chiropractic Examiner designated by the American
Board of Independent Medical Examiners and trained in the American Medical
Association Guidelines in the evaluation of permanent impairment.  When he
assessed Mr. Anderson on July 30, 2014, Dr. Jung was enrolled in
a graduate certificate program in pain management in the Faculty of Rehabilitation
Medicine, at the University of Alberta.

[94]        
Dr. Jung diagnosed the Accident‑induced injuries sustained by
Mr. Anderson as falling within two main categories:

1)    Soft tissue
injuries to his neck and upper back, including his upper shoulder girdle area. 
On examination, Dr. Jung found a significant difference in Mr. Anderson’s
neck strength between his left and right sides, which he concluded was consistent
with his diagnosis of soft tissue injury to that area.  Dr. Jung also held
the view that Mr. Anderson likely suffered injury to his interspinous
ligaments and remarked that such injuries typically take longer to heal than
other soft tissue injuries.  He elaborated that, unlike injuries to muscles,
ligamentous injuries tend to present with increased motion consistent with the
flexion movement in Mr. Anderson’s neck, and the extension and bilateral
rotation movements in his mid‑back.

2)    Facet joint
injuries in the same areas as his soft tissue injuries.  In Dr. Jung’s
opinion, the presentation of pain in Mr. Anderson’s neck including and
encompassing his upper shoulder girdle and in his upper back/trapezius area,
suggested a mechanical pain that probably stemmed from his facet joints.  In
assessing the degree of “joint play” in those areas, Dr. Jung found an
abnormal lack of movement that indicated the injury was not simply of the soft
tissue variety and was consistent with an injury or abnormality of Mr. Anderson’s
facet joints.  By loading the facet joints, a process by which Dr. Jung purposely
“jams” the joint, he was able to reproduce some of Mr. Anderson’s neck and
shoulder girdle pain which he noted would be typical for a patient suffering
from a facet joint injury.

Dr. Jung explained that
facet joint pain has a specific pattern related to the area of injury.  An
injury at the C6 level, which Dr. Jung believes is the location of Mr. Anderson’s
injury, causes a pattern of referral pain directly over the trapezius muscle.  He
stated that restricted facet joints at the C6 level have been implicated in the
literature as a common source of neck pain and opined that the difficulty Mr. Anderson
experienced with extension movements of his neck was consistent with a facet
joint injury.

[95]        
As mentioned earlier, after Mr. Anderson commenced his sessions
with Dr. Murray, he began to self‑manipulate his neck which provided
him with temporary symptomatic relief.  Dr. Jung testified that self‑treatments
of that kind often alleviate pain temporarily by creating a “gap” in the facet
joints.

[96]        
As far as Dr. Jung could tell, Dr. Hershler’s physical
examination of Mr. Anderson differed from his, and he reasoned that the
differences between their two examinations would explain why they had not
reached the same conclusion regarding the injury to Mr. Anderson’s spine.  The
material difference appears to be that Dr. Hershler did not perform the
spinal loading evaluation relied upon by Dr. Jung.

[97]        
Dr. Jung opined that, in light of the ongoing nature of Mr. Anderson’s
injuries and his failure to recover despite sessions with a personal trainer,
massage therapist and the spinal manipulation treatments performed by Dr. Murray,
it was unlikely that he would experience significant improvement from his
current condition.  Notably, however, he added the important qualification that
if Mr. Anderson were to comply with the recommended treatment modalities,
he may be able to increase his pain tolerance and develop coping skills and
thereby modestly improve the management of his constellation of soft tissue and
facet joint injuries.  Dr. Jung foresaw that even with such improvement,
it was probable that Mr. Anderson would continue to experience symptomatic
flares in his neck and shoulder/upper back triggered by the activities of daily
living.  I consider that latter point problematic as the evidence did not show
that the activities of daily living or Mr. Anderson’s physically intense recreational
pursuits, such as ice hockey and skiing, aggravated his symptoms.  The
exacerbating culprit in Mr. Anderson’s case is prolonged sitting, especially
while using his computer.

[98]        
As had Dr. Hershler, Dr. Jung cautioned that, without
flexibility in the work place to take breaks throughout the day, Mr. Anderson
would likely experience more frequent episodes of neck/shoulder/upper back pain
and probably at an increased intensity.  In Dr. Jung’s clinical experience,
it is not uncommon for patients with ongoing pain to experience depressive‑like
symptoms.  That point was also made by Dr. Hershler and seems a matter of
common sense.

[99]        
Finally, Dr. Jung opined that Mr. Anderson may be susceptible
to further injury or the exacerbation of his soft tissue and/or facet joint
injuries if he were to suffer a further traumatic insult to his neck or upper
back region.

[100]     Dr. Jung
made several treatment recommendations:

(a)           
A series (four to six visits) of spinal manipulative therapy with a
chiropractor to help with the neck pain generated by Mr. Anderson’s facet
joint injury.  If Mr. Anderson experiences longer-lasting pain relief from
that therapy than he did from the sessions with Dr. Murray, another series
of treatments should be added, possibly as many as ten to 20, together with four
to six treatments annually on an ongoing basis to address periodic flares of
symptoms;

(b)           
Consultation with a physiatrist that offers prolotherapy injections with
the goal of tightening Mr. Anderson’s ligamentous laxity and relieving
pain.  Such injections usually have a therapeutic effect for three to six
months;

(c)           
Facet joint injections, also known as facet blocks, with deference to
the view of a physiatrist as to whether that form of treatment would be
appropriate;

(d)           
Steps to increase Mr. Anderson’s neck strength with regard to
flexion and right lateral flexion, such as performing isometric exercises or
exercises with an elastic tubing or bands, and preferably done under the
direction of a kinesiologist.  In the event that those exercises are not
particularly helpful, Mr. Anderson should find a facility that would give
him access to a specific neck exercise machine called a BTE/Hanoun multi‑cervical
unit.  Because Mr. Anderson’s neck and upper back pain is not exclusively
related to his neck weakness, his symptoms will not resolve merely by strengthening
his neck; and

(e)           
Although massage therapy is likely no longer contributing significantly
to Mr. Anderson’s healing process, it can serve a long-term palliative
purpose by providing temporary symptomatic relief of soft tissue injuries.  The
frequency of those treatments will depend upon how well Mr. Anderson responds
to the other courses of recommended treatments, that is to say, if those
treatments do not yield positive results and ease Mr. Anderson’s pain
sufficiently, more ongoing massage may be reasonably required.

c)    
Ms. Louise Craig

[101]     Ms. Craig
is a registered physiotherapist and holds a Masters of Business Administration
with a focus on rehabilitation and early intervention strategies facilitating
durable return to work.  She has completed extensive postgraduate studies in
several specialty areas, such as the preparation of functional capacity
evaluations and cost of future care analyses.  Ms. Craig has provided
reports for private insurers, lawyers, employers and the Insurance Corporation
of British Columbia in relation to the foregoing since 1994.

[102]     Ms. Craig
carried out a functional capacity assessment of Mr. Anderson on August 14,
2014 over the course of nearly eight hours.  She described a functional
capacity evaluation as being a systematic method of measuring an individual’s
ability to perform meaningful tasks on a basis that is both safe (i.e. without
sustaining injury) and dependable (i.e. able to do daily).

[103]     Once the
session with Ms. Craig was underway, Mr. Anderson was periodically asked
to rate his pain by reference to the Matheson Functional Pain Scale, which enumerates
ten levels of pain.  He variously referred to experiencing pain at scales three
to five, which are described in these terms:

Three:    Pain is starting to visibly disable you.  It is
starting to cause difficulty moving or applying strength through the painful
area, affecting your productivity or performance.  Causes you to take small
breaks to rest or stretch.

Four:      Pain that causes disability between levels three
and five.

Five:       Very
disabling pain.  Causes great difficulty moving or applying any strength
through the painful area.  You would stop using the painful area for the
present activity.

[104]     Mr. Anderson
reported to Ms. Craig that sitting, working at his computer, holding the
phone to his shoulder, and driving aggravated the right side of his neck and
his shoulder/trapezius area.  He elaborated that his pain was less noticeable
if he was able to move around and change his posture after about an hour of continuous
sitting.

[105]     During the
evaluation, Mr. Anderson was able to sit upright for a non‑continuous
period of four hours and 32 minutes.  However, he was only able to tolerate 90
minutes of continuous sitting during which he complained of an increase in pain
to approximately levels four and five.  Mr. Anderson demonstrated tolerance
for occasional to frequent sitting (with regular breaks) and possible tolerance
for constant sitting with the use of proper ergonomics, and pacing and
breaking strategies.  Ms. Craig’s use of the term constant did not
necessarily imply uninterrupted sitting.  Rather, it referred to sitting for a
period of between 66 to 100% of the work day.

[106]     Mr. Anderson
did not report difficulties with standing, climbing stairs or walking and Ms. Craig
concluded that he was not limited in those abilities.  He reported symptom
increase with sustained head forward posture after short intervals of five to
ten minutes.  Although he was able to reach at all levels, he reported symptom
aggravation to the right side of his neck and right trapezius area in response
to sustained overhead reaching that resulted in him slowing his pace and falling
below industrial standard performance for that type of task.  Mr. Anderson
reported that his focus becomes disturbed once the pain and muscle spasms in
his right trapezius area increase.  He was able to reduce his pain with a break
of between five and 20 minutes that allowed him to walk and lightly stretch.

[107]     Over the
course of testing, Mr. Anderson maintained or improved his speed and range
of motion (shoulders and neck) which indicated to Ms. Craig that he had a
reasonable tolerance to the test activities.  Based on the results of the
battery of tests that she administered to Mr. Anderson, Ms. Craig concluded
that he demonstrated the capacity for mid-to full-range medium physical
strength demands and was able to assume all body positions without difficulty.

[108]     In her
report, Ms. Craig makes it clear that Mr. Anderson is independent
with his activities of self‑care, does not require help for household
cleaning, garden or yard work and that there are no physical barriers limiting
his participation in sports such as skiing and ice hockey on a recreational
basis.

[109]     Ms. Craig
understood the critical job demands of Mr. Anderson’s former position as
the director of operations at Preston to be sitting at a computer working with
spreadsheets and databases, using the telephone, occasionally participating in
client meetings and managing inventory of items that weighed approximately 20
pounds, but nothing heavy.  She was satisfied that he demonstrated the capacity
to partially meet the physical demands of his former position with reduced
endurance for sustained intensive sitting tasks which, she acknowledged, comprise
the majority of his occupational demands.

[110]     In Ms. Craig’s
opinion, the determination of Mr. Anderson’s future ability to resume full‑time
work is dependent on the outcome of her recommendations.  She expressed
reservations about whether he would be able to work full‑time hours without
employing effective pain management strategies based on his current pain
reports and symptom aggravation arising from work‑like tasks.  By
implementing her recommended treatment regimen, together with a pacing and
break strategy throughout the work day, and by using proper ergonomics, Ms. Craig
considered it likely that Mr. Anderson would be able to tolerate full‑time
work of 40 hours per week.  She clarified that by taking the breaks into
account, he would likely be productive for approximately 6.5 hours or so of the
work day.  She added that, without further improvement of his injury, she has
moderate reservations about his ability to work in his past capacity beyond 40
hours and up to 60 hours per week because the anticipated increase in his pain
causes him distraction and difficulty focusing.

[111]     Based on
the various protocols she used to measure consistency, reliability and validity,
Ms. Craig concluded that Mr. Anderson provided a consistent and full
physical effort during her evaluation.  She also concluded that her findings on
assessment and her clinical observations of Mr. Anderson generally
supported his reports of pain and that he presented with mild and appropriate
pain behaviour.

[112]     A vitally
important feature of Ms. Craig’s opinion is that she is not satisfied that
Mr. Anderson has reached his maximum physical rehabilitation.

[113]     Her recommendations
for Mr. Anderson are set out below:

(a)           
In addition to breaking and pacing throughout his work day, he will
require an ergonomic work station to facilitate good posture during work
hours.  An ergonomic assessment should be performed.  Because Mr. Anderson
says that standing is a better position for him, he should use a sit/stand work
station for a trial period to determine whether it would be effective in
reducing his symptoms during work hours;

(b)           
Mr. Anderson did not exhibit effective pacing and breaking
strategies in response to the sustained sitting postural demands that tend to aggravate
his symptoms.  In order to increase his overall productivity and improve the
management of his symptoms, it is essential that he take frequent and regular
breaks at work of about 15 minutes every hour.  However, Mr. Anderson seemed
hesitant to avail himself of breaks because he finds that they interfere with
his concentration.  Therefore, he should receive coaching from a
physiotherapist or occupational therapist in that regard, with two to three
hours of education over a six‑week period;

(c)           
He would benefit from increased activity because his current level of
activity is insufficient to improve his condition or functional status.  Given that
he has not yet pursued a comprehensive exercise program, he should participate
in a concentrated six‑week long individualized rehabilitation program
guided by a physiotherapist.  At the conclusion of that program, Mr. Anderson
should maintain a regular conditioning program for a minimum of three to four
days per week;

(d)           
Mr. Anderson’s further participation in chiropractic treatments is
warranted for at least ten to 12 additional sessions to evaluate the efficacy
of that modality.  In the event that the initial series of treatments is therapeutic,
monthly treatments should be employed for as long as they remain a beneficial
part of his pain management program;

(e)           
In light of Dr. Hershler’s opinion that massage therapy may help Mr. Anderson,
he should attend ten to 12 sessions per year as part of his pain management
strategy.  Five to six sessions of acupuncture or intra‑muscular stimulation
may also prove therapeutic; and

(f)             
Other options should be explored for the medical management of Mr. Anderson’s
localized pain.  In many similar cases where there are facet joint injuries and
persistent soft tissue pain, many patients undergo trigger point injections,
facet joint blocks, prolotherapy, prescription pharmacological management or therapeutic
Botox injections.  However, Ms. Craig acknowledged that those care items
were beyond her realm of expertise.

d)    Dr. Dean
Powers

[114]     Dr. Powers
is a vocational rehabilitation consultant and vocational expert who practises
in Canada and in the Pacific Northwest region of the United States.  He holds a
Doctor of Philosophy and a master’s degree in arts, as well as, a master’s
certificate for vocational specialists with the College of Vocational
Rehabilitation Professionals.  In addition, Dr. Powers is an
internationally recognized certified rehabilitation counselor and long‑standing
registered rehabilitation practitioner.  As a consultant within the
rehabilitation and health fields for over 30 years, he has extensive experience
in conducting vocational assessments and assessments concerning individual
productivity, employability, job suitability and other vocational matters.  He
also secures placements for clients who have sustained a significant loss of
function that interferes with their ability to work competitively.

[115]     Dr. Powers
performed a vocational diagnostic interview and vocational testing of Mr. Anderson
on August 15, 2014, with a follow‑up interview some 12 days later.  His
opinion took the form of answers to specific questions posed to him by Mr. Anderson’s
counsel.  At trial, Dr. Powers agreed that his opinion largely pertained
to Mr. Anderson’s employability within the wireless phone industry.

[116]     In Dr. Powers’
opinion, the Accident caused Mr. Anderson to be demoted from working full‑time
as the director of operations in a competitive environment to working part‑time
as a sales consultant.  In the circumstances, he considered Mr. Anderson’s
decision to accept this less demanding role at Preston to be sensible.

[117]     Dr. Powers
opined that Mr. Anderson would likely only be able to work a maximum of 20
to 25 hours per week in his role as a sales consultant for Preston.  His
prediction was markedly different from that of Ms. Craig who considered Mr. Anderson
to be capable of working 40 hours per week if he had appropriate ergonomic
support and followed her recommendations for rehabilitation and pain management.
Dr. Powers regarded Mr. Anderson as being underemployed for his
qualifications and experience and currently not likely competitively employable
for full‑time work as a result of the Accident.

[118]     Dr. Powers
expressed concern about whether Mr. Anderson would be able to secure and
maintain another sales consulting position were he to leave Preston.  In his
view, the potential of Mr. Anderson moving to another company in his pre‑injury
employment capacity was highly unlikely for the foreseeable future.  He held
the view that even if Mr. Anderson obtained a position with an alternate
employer, he may suffer a loss of income because his pre‑Accident income
with Preston was at the high end of the spectrum, likely due, in part, to his
status as a shareholder.

[119]     Dr. Powers
was guarded about Mr. Anderson’s ability to transition into any kind of
business and believed that he could likely only succeed in a low‑demand,
entrepreneurial opportunity.  What might constitute such opportunities and the
corresponding range of incomes were not developed in the evidence.

[120]     In
reaching his opinions, Dr. Powers drew on his experience in the cell phone
industry, which he reported as being highly competitive and where employees,
including those who were shareholders at the start‑up, work long hours
and are under pressure to make sales, perform services and provide value‑added
features.  He described employers in the field as demanding and remarked that
working overtime was a commonplace expectation.  Dr. Powers commented that,
despite Mr. Anderson’s experience in the field of wireless communications,
he would likely be subjected to hiring discrimination from a prospective
employer who would be more motivated to hire an employee who did not require ergonomic
accommodations and periodic breaks.

[121]     In cross‑examination,
it was revealed that Dr. Powers had limited experience in Mr. Anderson’s
niche field.  Even so, I find that his observations concerning the demands and
competitiveness of the mobile phone sales industry at large applied to the work
environment at Preston as it was credibly portrayed by the three founding
partners.  It was likewise harmonious with Mr. Almog’s description of the
business-to-business side of the industry.

[122]     The
results of the aptitude and achievement tests administered to Mr. Anderson
showed that his reading and writing proficiency was below the level of his average
cohort.  This finding reflected the reality that Mr. Anderson’s English
skills are below average, which is an inherent shortcoming he possessed long
before the Accident and is unconnected to it.  In Dr. Powers’ view, Mr. Anderson
would be suited to formal post‑secondary training in a two‑year
college or technical training programs with a reduced requirement for extensive
reading and writing.

[123]     Dr. Powers
administered the Myers‑Briggs Type Indicator assessment to determine Mr. Anderson’s
personality “type" and then compiled a list of broad job categories that
persons who share that profile find attractive.  He enumerated several
alternative occupations to that of a sales consultant that correlated with Mr. Anderson’s
“type".  In his opinion, given Mr. Anderson’s unresolved medical
condition, the number of careers available to him has been significantly narrowed,
and his educability has been reduced due to physical and cognitive limitations
stemming from the Accident.  I would note that several of the jobs identified
as being within Mr. Anderson’s preference were unrealistic on their face in
light of their requisite university training (e.g., a number of engineering
positions) and Mr. Anderson’s aptitude and his inherent difficulty with
academic English.

[124]     Dr. Powers
recommended that ten hours of vocational counselling services be available to Mr. Anderson
to assist him in investigating alternative careers, at a cost of approximately
$150 per hour, plus GST.

[125]     As for Mr. Anderson’s
future vocational advancement had the Accident not happened, Dr. Powers
offered a highly qualified opinion to the effect that had Mr. Anderson
remained as the director of operations of Preston and had Preston remained
fiscally successful, it could be assumed that his earnings would have likely
increased accordingly.

[126]     In
reaching his opinion, Dr. Powers placed not insubstantial reliance on what
he characterized were Mr. Anderson’s cognitive difficulties.  His use of
the term “cognitive difficulties” appeared to encompass disturbance with Mr. Anderson’s
memory, as well, as his concentration and alertness triggered by his pain.  I
accept that the sensation of pain can be distracting and interfere with one’s
concentration while it is being experienced and that proposition probably holds
true in Mr. Anderson’s case.  It must be said, however, that the evidence
does not establish that Mr. Anderson sustained any cognitive injury or deficits
or memory impairment per se as a result of the Accident.  Additionally,
as Mr. Anderson’s residual symptoms improve and diminish (as I find they
likely will), so too will any adverse cognitive-related sequelae.

[127]     Dr. Powers’
opinion was also informed by Mr. Anderson’s self‑report of his
symptoms and their current effect upon his function, including his asserted compromised
ability to enjoy his pre‑Accident activities.  For example, Dr. Powers
was given to understand by Mr. Anderson that upon moving to Columbia, he
has only been able to work ten to 15 hours per week, or the equivalent of 35%
of his work duties as compared to his pre‑Accident capability, and was
working at that reduced pace at the time of the assessment.

[128]     I find
that Mr. Anderson significantly overstated the degree of his impairment to
Dr. Powers, much as he had done when interviewed by Dr. Hershler.  Mr. Anderson
may well have only been working 10 to 15 hours per week at the time he saw Dr. Powers. 
However, that was because the workflow from Preston was diminishing and not
because Mr. Anderson was unable to perform more work.  Mr. Anderson’s
self‑report to Ms. Craig, his testimony at trial and the
preponderance of the evidence as a whole indicate that he has a significantly
greater capacity to work than what he led Dr. Powers to believe.  Given
the faulty factual premises on material points upon which Dr. Powers
constructed his opinion, I am reluctant to afford it much weight.

·       The
Defendant’s Expert, Dr. Richard Loomer

[129]      Until
2005, Dr. Loomer practised general orthopedic surgery in New Westminster.  He
is a founder of the Sports Medicine Center at the University of British
Columbia where he has also taught in the Faculty of Medicine since 1992.

[130]     Mr. Anderson
was seen by Dr. Loomer on August 5, 2014.

[131]     Dr. Loomer
has effectively no experience in managing non-surgical patients.  In instances
where he determines that a patient will not benefit from surgery, he generally
does not provide any further treatment, other than occasionally referring that patient
to a physiotherapist for non‑surgical treatment or to a physiatrist for
management of chronic pain.

[132]     Dr. Loomer
performed what he characterized as a standard orthopedic examination on Mr. Anderson.
He found no spasm in Mr. Anderson’s neck on examination, but clarified
that it did not follow that Mr. Anderson does not experience neck spasms.  Although
he assessed full active range of motion of Mr. Anderson’s right shoulder
and cervical spine, including forward flexion, he acknowledged that an
individual’s range of motion varies day‑to‑day and, therefore, is not
a conclusive marker of the presence or absence of soft tissue injury.  In any
event, Dr. Loomer diagnosed a soft tissue injury to the tissues around Mr. Anderson’s
lumbar and cervical spine and his trapezius region.  He opined that the Accident
was responsible for producing those injuries.

[133]     Dr. Loomer
testified that the gold standard for diagnosing a facet joint injury is to
administer facet block injections and noted that this had not been done in Mr. Anderson’s
case, with the implication that Dr. Jung’s diagnosis may this be incorrect.
However, he made important concessions about whether Mr. Anderson may
have suffered a facet joint injury.  Specifically, Dr. Loomer testified
that he has never diagnosed a facet joint injury and is not qualified to do so
in a clinical setting as it is not the type of injury that is amenable to
surgical repair.  Accordingly, he performed no spinal loading or other test on Mr. Anderson
to determine its presence or absence.  Moreover, he clarified that his use of
the term “soft tissue injury" would not necessarily exclude the potential that
Mr. Anderson had also suffered a facet joint injury.

[134]     Dr. Loomer
considered it “a bit unusual" for Mr. Anderson’s symptoms to have
persisted for as long as they have.  On the one hand, he remarked that there
was a “good chance" and he was “quite certain” that Mr. Anderson’s
symptoms would gradually resolve over time.  On the other, he agreed that the
majority of patients who have sustained whiplash‑related injuries recover
within the first weeks or months after being injured, that little clinically
significant recovery is expected to occur after two years post‑injury and
that some people never fully recover.  Further muddling the matter of Mr. Anderson’s
prognosis, Dr. Loomer expressed the opinion that Mr. Anderson may
have some minor long‑term disability.

[135]     As for future
treatment, Dr. Loomer merely advised Mr. Anderson to be as active as
possible in his normal activities and exercises.

CAUSATION

[136]     The
primary test used in determining causation in negligence is the “but for”
test.  The plaintiff bears the onus of proving, on a balance of probabilities,
that “but for” the defendant’s negligent act or omission, the injury would not
have occurred: Athey v. Leonati, [1996] 3 S.C.R. 458 [Athey]; Blackwater
v. Plint, 2005 SCC 58; Clements v. Clements, 2012 SCC 32 [Clements];
Ediger (Guardian ad litem of) v. Johnston, 2013 SCC 18 [Ediger]. 
Inherent in the test is the requirement that the injury would not have happened
without the defendant’s negligence: Clements at para. 8; Ediger
at para. 28.

[137]     The
plaintiff need not establish that a defendant’s wrongful conduct is the sole
cause of his injury.  So long as a substantial connection between the harm and
the defendant’s negligence beyond the “de minimus” range is
established, the defendant will be fully liable for the harm suffered by a
plaintiff, even if other causal factors, which the defendant is not responsible
for, were at play in producing that harm: Farrant v. Laktin, 2011 BCCA
336; Athey; Resurfice Corp. v. Hanke, 2007 SCC 7.

[138]     The
causation test does not demand scientific precision and is not to be applied
too rigidly.  Causation is a practical question of fact which can best be
answered through the application of ordinary common sense: Snell v. Farrell,
[1990] 2 S.C.R. 311.

[139]     The
concepts of etiology in the medical sphere and causation at law are not
synonymous.  This is because the “but for” test need only be proved on a
balance of probabilities, whereas a more rigorous standard that approaches
scientific certainty is familiar to the medical field: Tsalamandris v.
MacDonald, 2011 BCSC 1138 at paras. 144-146, var’d on other grounds, 2012
BCCA 239; Midgley v. Nguyen, 2013 BCSC 693 [Midgley] at para. 172;
Munoz v. Singh, 2014 BCSC 567 at para. 136.

[140]     The court
will exercise caution in inferring legal causation by exclusive or substantial
reference to a temporal sequence of events, which often takes the form of
comparing the plaintiff’s condition in the pre- and post-Accident scenarios: Madill v.
Sithivong, 2012 BCCA 62 at para. 20; White v. Stonestreet, 2006
BCSC 801 at paras. 74-75.  As I have noted in past decisions, it does not
follow that the judicial insistence of caution signifies judicial thinking that
temporal reasoning is an illegitimate analysis or a branch of logic to be
seldom invoked: Gabor v. Boilard 2015 BCSC 1724 at para. 522; Midgley
at para. 171.

[141]     Dr. Loomer
considered it to be “very unusual that the symptoms did not really arise
sufficient for [Mr. Anderson] to seek medical attention until a year after
the [A]ccident suggesting that there may have been some other cause but I could
not identify any".  At trial, Dr. Loomer conceded that he was “just
speculating" about the potential that Mr. Anderson’s injuries might
have stemmed from an unidentified cause rather than from the Accident.  Mr. Anderson
credibly denied involvement in any intervening traumatic event or incident that
may have given rise to one or more of his injuries and there was no cogent
evidence to suggest that such an event had taken place.

[142]     As
mentioned, there is agreement among the medical experts that the Accident
caused Mr. Anderson headaches and soft tissue injuries primarily to his back,
neck and right shoulder/trapezius area.  Unlike Drs. Hershler and Loomer, Dr. Jung
has extensive experience in diagnosing facet joint injuries in a clinical
examination.  Although Dr. Jung did not use the facet block injection as his
diagnostic tool, there was no credible suggestion by the other medical experts
that the tests he performed in a clinical setting to assess whether facet injury
had been inflicted upon Mr. Anderson were invalid or otherwise flawed.

[143]     The but
for test does not require the court to accept or find a particular medical
diagnosis.  That being said, all things considered, I think it more probable
than not that Mr. Anderson sustained a facet joint injury to the C6 level
of his spine as a result of the Accident, in addition to the headaches and soft
tissue injuries described above and in greater detail earlier in my Reasons.

DAMAGES

·       Loss
of Income-Earning Capacity and Opportunities

[144]    
The legal framework that informs an award for loss of earning capacity
was instructively summarized by Dardi J. in Midgley at paras. 236-240:

[236] The recent jurisprudence of the Court of Appeal has
affirmed that the plaintiff must demonstrate both an impairment to his or her
earning capacity and that there is a real and substantial possibility that the
diminishment in earning capacity will result in a pecuniary loss.  If the
plaintiff discharges that requirement, he or she may prove the quantification
of that loss of earning capacity either on an earnings approach or a “capital
asset” approach: Perren v. Lalari, 2010 BCCA 140 at para. 32.
Regardless of the approach, the court must endeavour to quantify the financial
harm accruing to the plaintiff over the course of his or her working career: Pett
v. Pett, 2009 BCCA 232 at para. 19; X. v. Y at para. 183.

[237] As enumerated by the court in Falati v. Smith,
2010 BCSC 465 at para. 41, aff’d 2011 BCCA 45, the principles which inform
the assessment of loss of earning capacity include the following:

(i) The standard of proof in relation to hypothetical or
future events is simple probability, not the balance of probabilities: Reilly
v. Lynn, 2003 BCCA 49 at para. 101. Hypothetical events are to be
given weight according to their relative likelihood: Athey at para. 27.

(ii) The court must make allowances for the possibility that
the assumptions upon which an award is based may prove to be wrong: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49
B.C.L.R. (2d) 99 (C.A.). Evidence which supports a contingency must show a
“realistic as opposed to a speculative possibility”: Graham v. Rourke
(1990), 75 O.R. (2d) 622 at 636 (C.A.).

(iii) The court must assess damages for loss of earning
capacity, rather than calculating those damages with mathematical precision: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43. 
The assessment is based on the evidence, taking into account all positive and
negative contingencies. The overall fairness and reasonableness of the award
must be considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11.

[238] Although a claim for “past loss of income” is often
characterized as a separate head of damages, it is properly characterized as a
component of loss of earning capacity: Falati at para. 39. It is
compensation for the impairment to the plaintiff’s past earning capacity that
was occasioned by his or her injuries: Rowe v. Bobell Express Ltd., 2005
BCCA 141 at para. 30; Bradley v. Bath, 2010 BCCA 10 at paras. 31-32;
X. v. Y at para. 185.

[239] While the burden of proof relating to actual past
events is a balance of probabilities, a past hypothetical event will be
considered as long as it was a real and substantial possibility and not mere
speculation: Athey at para. 27.

[240] This court in Falati at para. 40 summarized
the pertinent legal principles governing the assessment of post-accident,
pre-trial loss of earning capacity and concluded that:

[40] … the determination of a plaintiff’s prospective
post-accident, pre-trial losses can involve considering many of the same
contingencies as govern the assessment of a loss of future earning capacity. 
As stated by Rowles J.A. in Smith v. Knudsen, 2004 BCCA 613, at para. 29,

“What would have happened in the past but for the injury is
no more ‘knowable’ than what will happen in the future and therefore it is
appropriate to assess the likelihood of hypothetical and future events rather
than applying the balance of probabilities test that is applied with respect to
past actual events.”

[145]     In
advancing a claim for the loss of income‑earning capacity, the plaintiff
must prove a real and substantial possibility of such loss, as opposed to a
theoretical one.  In other words, the award cannot be based on speculation: Rosvold
v. Dunlop, 2001 BCCA 1 [Rosvold]; Perren v. Lalari, 2010
BCCA 140.  Where a real and substantial possibility of loss has been
established, compensation is awarded based on an estimation of the chance that
the event leading to such loss will occur: Steward v. Berezan, 2007 BCCA
150.  As was recently observed by the Court of Appeal in Kim v. Morier,
2014 BCCA 63 at para. 7, the onus on the plaintiff is not a heavy one
but must nonetheless be met in order to justify a pecuniary award.

[146]     Quantification
of loss is an assessment meant to reflect the non-speculative positive and
negative contingencies at play.  As quantification is not a strict mathematical
calculation, there is no particular formula or methodology to be employed: Rosvold
at para. 11; Jurczak v. Mauro, 2013 BCCA 507 at para. 36.

[147]     Evidence
of ongoing pain may be sufficient to ground a substantial possibility that a
plaintiff’s pain will adversely affect his or her future ability to work.  This
may hold true even where, at the time of trial, the plaintiff has not missed
work due to the injury: Clark v. Kouba, 2014 BCCA 50 at para. 33; see
generally, Williamson v. Suna, 2009 BCSC 576 at paras. 52, 55 and
62.

·       Mr. Anderson’s
Past Loss

[148]     Mr. Anderson’s
combined earnings at Preston, directly or through his company, were $56,609 for
the partial 2010 year, $84,432 in 2011 and $80,612 in 2012 (which tabulates to
$89,534 on an annualized basis) before he transitioned to his consultant
position.  Upon becoming a consultant, his monthly earnings, which were paid
through his company, were $3,000 in November and December 2012.  Mr. Anderson’s
level of income in 2011 and 2012 placed him within the 90th percentile of all B.C.
males between the ages of 30 and 35 with high school diplomas or the equivalent
(the “90th Percentile Category").

[149]     In 2013, Mr. Anderson’s
earnings from Preston amounted to $16,402 and in 2014 they were $19,324, plus an
additional $2,400 from the sale of cellular phones in Columbia.

[150]     Mr. Anderson
initially sought compensation for lost earnings incurred for the period
starting September 2013 and continuing through to trial.  He urged that the
following approach be used to quantify that past loss:

[151]    
Multiplying the monthly difference of what Mr. Anderson claims he
would have earned prior to trial had the Accident not occurred, compared to what
he says is a generous monthly average of his actual earnings over the 14 month
span (i.e. from September 2013 to the start of trial on December 1, 2014), yields
a gross loss of $62,454.

[152]    
During final submissions, Mr. Anderson’s counsel expanded his position
to encompass losses incurred in the three months immediately preceding the
start of his trip to South America in February 2013.  Because he earned $3,000
in each of those months as well, the basic calculation was the same (i.e. 3 x
$4,461 = $13,383) and raised Mr. Anderson’s total asserted past loss to
$75,837.

[153]     The
defendant insists that Mr. Anderson did not endure any compensable loss of
income in the before-trial period.  The defence theory is that, despite the
injuries he sustained in the Accident, Mr. Anderson was able to
effectively perform his duties as the director of operations at Preston until
late 2011 or early 2012.  The defendant hypothesizes that by late 2012, Mr. Anderson
became overwhelmed and overworked by Preston’s remarkable growth and the
corresponding relentless demands it placed upon him, and that he could no
longer tolerate Mr. Mitchell’s domineering personality and criticisms.  Mr. Anderson
ultimately stepped down from his post as the director of operations and
arranged to work as a part‑time consultant, says the defendant, for
reasons predominantly unrelated to the Accident.  Those reasons were that he
was burnt out by the long hours he had devoted to Preston for more than two
years and because the clashes with Mr. Mitchell had become a source of
frustration, disillusionment and unhappiness.

[154]     The defendant’s
position is not tenable on a reasonable interpretation and fair weighing of the
evidence.

[155]     There was
no suggestion in the evidence to the effect that, before the Accident, Mr. Anderson
had struggled at Preston or in the wireless sales industry at large.  Indeed, the
evidence demonstrates the opposite.  He distinguished himself at Rogers and was
a committed and valuable employee at Cell Solutions.  From the outset, Mr. Anderson
understood that the success of Preston rested on the shoulders of himself and
his partners and would necessitate his undivided commitment over a number of
years.  Before the Accident, he immersed himself in doing whatever was required
to help Preston prosper and consistently produced work of high quality while
maintaining an intense work pace.

[156]     Neither Mr. Barber
nor Mr. Mitchell expressed any reservations about Mr. Anderson’s work
ethic or the quality of his work before the Accident.  Nor was there any
evidence to reasonably suggest that in that period Mr. Anderson was
wavering in his commitment to Preston or beginning to unravel from the
expectations placed upon him.  Additionally, the evidence indicates that as Preston
continued along in its upward trajectory and grew significantly in 2011 and
2012, additional staff were hired to help address the increasing workload.

[157]     The
evidence is convincing that Mr. Anderson was capable of both generating
and handling rapid growth.  For example, according to Mr. Almog, Cell Solutions
underwent an “amazing” period of growth after Mr. Anderson joined.  There
was not so much as hint that Mr. Anderson ever experienced problems or
required work place accommodations in order to discharge his job duties there.

[158]     If, as the
defendant submits, there had been a personality conflict between Mr. Mitchell
and Mr. Anderson unrelated to the aftermath of the Accident that was
sufficiently extreme to independently drive Mr. Anderson from Preston, I
would have expected at least a modicum of evidence that their relationship was
starting to fray, ever slightly, prior to the Accident.  But there was none.

[159]     Moreover, Mr. Mitchell
persuasively attributed the change in his relationship with Mr. Anderson to
three major factors that arose for the first time in mid-to late 2011: Mr. Anderson’s
“pushback”; his poor work product and/or lack of focus leading to errors; and
his slower delivery of work, which Mr. Mitchell tied to his observations
of Mr. Anderson spending less time around the office.  At the root of
their conflict were Mr. Mitchell’s perception that Mr. Anderson was
making excuses for his reduced performance and Mr. Anderson’s sense that
he could not give any more to the job because of his injuries.  Compounding the
problem was that Mr. Anderson deliberately kept his partners in the dark
about the extent to which his symptoms were having a negative impact upon him.

[160]     Virtually
all of Mr. Anderson’s productive work at Preston (and, previously, at Cell
Solutions and Rogers), was performed at his desk and on a computer.  The
evidence of Drs. Hershler and Jung establish that working more than 40 hours
per week in a mostly sedentary position increases the likelihood of pain in the
trapezius muscle and that sustaining this posture probably worsened Mr. Anderson’s
symptoms over time.  Dr. Loomer conceded that intensive computer work with
prolonged sitting would aggravate trapezius muscle pain.  Ms. Craig’s
evidence was consistent with those medical opinions.

[161]     I am
satisfied that in the immediate aftermath of the Accident and for a relatively
lengthy time afterward, Mr. Anderson did not appreciate that the long
hours he spent sitting working on his computer were not only becoming counter‑productive
to his performance, they were also aggravating his injuries.  Given that the
increase in the frequency, duration and intensity of his neck and
shoulder/trapezius symptoms was gradual over 2011 and that he was able to rely
on over the counter medications like extra strength Advil and Robaxacet to adequately
control his symptoms for a considerable time, it is understandable that Mr. Anderson
failed to make the connection until relatively late in the day.  It is also not
surprising that by continuing to work in a manner that was prone to provoking
his symptoms, without ergonomic accommodation or taking regular breaks, the
frequency and intensity of Mr. Anderson’s residual neck and his
shoulder/trapezius symptoms worsened over time.

[162]     I accept Mr. Anderson’s
evidence, which is consistent with the preponderance of the medical evidence
and the testimony of Mr. Mitchell, that by the end of 2011 and continuing
into the early part of 2012, his pain had markedly increased.  I also find that,
at various times and in varying degrees, the sequelae of the Accident gave rise
to a corresponding decline in his mood, decrease in his energy and productivity,
and compromised the quality of his work.

[163]     The
probabilities of the evidence amply demonstrate that from the outset and
continuing for a time after the Accident, Mr. Anderson was highly
motivated to make Preston a success, thriving in the dynamic and aggressive work
place culture and buoyed by the feeling that he was living his dream.  The
evidence also establishes that, without the Accident, Mr. Anderson would
not have been plagued with the residual symptoms that adversely affected his
work performance at Preston, eventually compromised his relationship with Mr. Mitchell,
and played a role in him giving up his position as the director of operations. 
Put another way, I find it highly improbable that Mr. Anderson would have
resigned that title and withdrawn from the Preston office to assume a
subordinate, part‑time consulting role had there been no Accident.

[164]    
I am persuaded that, in the circumstances as they stood in the fall of
2012, it was prudent for Mr. Anderson to substantially restructure his
work arrangements with Preston.  It is most unlikely that he would have made
these changes in the absence of the Accident.  That he did not obtain a medical
note advising him to do so is not an omission that serves to negate his
reasonably held belief that he needed to significantly scale back from work and
assume a new role at Preston.  That a compensable loss sustained from November
2012 through to the end of January, 2013 was followed by several months of
travel in respect of which Mr. Anderson does not seek damages, does not undermine
his entitlement.

[165]    
The evidence supports a high chance of a real and substantial
possibility that, without the Accident, Mr. Anderson would have remained
working full‑time as Preston’s director of operations and continued to earn
income at the 90^th Percentile Category.  Even if he had chosen to
leave Preston, the evidence supports a strong likelihood of a real and substantial
possibility that he would have readily secured a position, likely with a
competitor in the wireless industry, where he would have maintained his earnings
standing in the 90th Percentile Category.

[166]    
It strikes me that any negative contingencies, beyond the standard
contingencies of life such as survival, illness and voluntary withdrawal from
the workforce (which were not put into evidence), are limited in Mr. Anderson’s
pre‑trial scenario.  In terms of positive contingencies, Mr. Anderson
mildly suggested that his income in 2013 and 2014 would have more closely
approximated the salary projections that he had compiled for Preston’s
inaugural budget in late 2009, such that, in those years he would have earned
closer to $8,000 and $9,000 respectively, per month.  In my view, Preston’s post-Accident
financial documents in evidence and Mr. Mitchell’s testimony in relation
to them was somewhat equivocal on that point.  At best, the evidence supports
only a low chance of a substantial possibility that Mr. Anderson’s salary
may have increased in 2013 and/or 2014 in the absence of the Accident.  On the
other hand, there was no cogent indication that his income would have taken a
dip downward.

[167]    
Based on the foregoing, I am satisfied that the Accident-induced
injuries suffered by Mr. Anderson impaired his capacity to earn income in
the pre-trial period.  What Mr. Anderson’s life held in store had the
Accident not happened can never be known.  Assessing, in the context of the
whole of the evidence, the relative chances of the real and substantial
possibilities of what would have happened in the past but for the Accident and
the pertinent contingencies, I am satisfied that his diminished capacity
has resulted in a pecuniary loss.

[168]    
Aiming for overall fairness between the parties, I quantify Mr. Anderson’s
loss to trial as $68,000 (gross).  I direct counsel to make the
necessary calculations to determine his net loss, with liberty to apply if they
are unable to reach agreement.

·       Mr. Anderson’s
Future Loss

[169]     In a
nutshell, my task is to compare the likely future of Mr. Anderson’s working
life if the Accident had not happened, to his likely future working life in
light of its occurrence: Gregory v. Insurance Corporation of British
Columbia, 2011 BCCA 144 [Gregory] at para. 32.

[170]     Many of my
findings that bear on Mr. Anderson’s loss before trial also have
application to the assessment of his future loss.

[171]     Mr. Anderson
described himself as a resourceful man and concedes that he is far from being unemployable.
He is confident that his “entrepreneurial spirit” will eventually land him
back on his feet to some extent.  However, he submits that the most likely
scenario is that it will take him a further year or so to take advantage of the
future care items he seeks and to find his next career path or entrepreneurial
opportunity.  He contends that in the meantime he would most likely continue to
provide consulting services to Preston (assuming it is not sold) and earn approximately
$2,000 per month, on average, with an additional $1,000 monthly from the used cell
phone/hardware program.

[172]     Although Mr. Anderson
considers it likely that he will find full‑time or near to full‑time
work or an equivalent opportunity in the relatively near future, he claims to
have forever lost the ability to put in the extensive hours and grind through
the relentlessly taxing work days seated at his computer that made him
successful in the wireless cell phone industry and able to achieve earnings at
the 90th Percentile Category.  He contends that his diminished capacity to work
at a computer uninterrupted for extensive spans of time each day presents a
massive barrier to his ability to remain in the industry and otherwise earn in
the 90th Percentile Category.

[173]     Elaborating
on the nature of his compromised capacity, Mr. Anderson asserts that,
because of the Accident, he has little choice but to find a position that would
enable him to earn a living while permitting him reasonable flexibility to take
regular breaks in the work place.  He submits that such opportunities will be
few and far between, particularly in his chosen niche area.  Mr. Barber supported
Mr. Anderson’s testimony in his observation that in Preston’s hard‑charging
environment it would not be considered acceptable for an employee to take 15
minutes every hour to stretch and walk around.

[174]     Mr. Almog
testified along similar lines, explaining that working 45 minutes of each hour
would not be tolerated in the wireless sales industry.  He explained that
standing up and walking around on a cell phone while talking to a client would
be permissible, but that it would be problematic for an employee to actually
limit his or her work output by a factor of 15 minutes per hour.  Offering a
more general perspective, Dr. Powers described the industry as being
highly competitive where employees, even those who are shareholders at the
start‑up, are expected to work long hours under pressure.

[175]     It is Mr. Anderson’s
contention that, subject to contingencies, there is a high chance of a real and
substantial possibility that the Accident has caused his long‑term
earning power to decrease to approximately $60,000 annually, representing a
drop of about $25,000 per year.  The reduced figure of $60,000 matches the
approximate salary (including bonus) of Preston’s current manager of operations
who performs most, but not all, of Mr. Anderson’s former day‑to‑day
responsibilities.  The $60,000 per year salary range represents earnings at the
70th percentile of all B.C. males between the ages of 30 and 35 with high
school diplomas or the equivalent.  Mr. Anderson submits that in light of
the fact he has spent ten years building his career by working at the computer,
which has turned out to be the primary activity that aggravates his injuries, a
finding that his residual earning capacity will be limited to the above-mentioned
70th percentile, rather than the 90th Percentile Category, is entirely
reasonable.

[176]     Using that
analytical model and assuming a steady annual loss of $25,000 until Mr. Anderson
attains the age of 70, produces a present value of lost future earnings in the
range of $645,034 to $705,750, without consideration of contingencies,
including the standard statistical variety, such as survival, illness and
voluntary withdrawal from the work force.  Relying on this approach, Mr. Anderson
seeks an award of between $650,000 and $700,000.

[177]     The
defendant asserts that Mr. Anderson has failed to prove a real and
substantial possibility of a future event leading to an income loss and,
consequently, is not entitled to an award under this head.  The preponderance
of the evidence goes the other way.

[178]     I would
observe at the outset that no cogent evidence was led by either party about Mr. Anderson’s
job or business prospects in Columbia, his entitlement to work there or how
long he plans to stay.  There is no proper evidentiary basis to conclude that
there are fewer such opportunities available to Mr. Anderson while he
resides in Medellin compared to Vancouver or other places in Canada, and
neither party has persuaded me of a principled basis to take judicial notice of
any such facts.

[179]    
The medical evidence, including that of the defence expert, Dr. Loomer,
who opined that Mr. Anderson may have a minor long-term disability,
together with the evidence as a whole, plainly establishes that Mr. Anderson’s
earning capacity has been compromised by the injuries he has suffered from the
Accident and will continue to be so for some period into the future.

[180]     A key
factual feature in Mr. Anderson’s case is that he has not reached his
maximum physical rehabilitation.  Dr. Jung agreed that compliance with the
recommended courses of treatment and active rehabilitation program may improve
his tolerance for pain and enhance his pain management skills.  In closing
submissions, it was effectively conceded by Mr. Anderson that he expects
to experience a degree of improvement in his symptoms after he has had an
opportunity to implement the treatments recommended by Drs. Jung and Hershler
and Ms. Craig for about a year.  Also, based on his own evidence, it is
clear that the frequency and intensity of his residual neck and
shoulder/trapezius symptoms have not stayed constant over the years; rather, they
have fluctuated and improved.  Despite the chronicity of his symptoms to date,
all things considered, I am sceptical that Mr. Anderson will fall
within the class of injured persons whose symptoms will likely not resolve, as was
discussed by Drs. Hershler and Jung and acknowledged by Dr. Loomer.

[181]     I accept
that the buildup of Mr. Anderson’s pain and difficulties with work and Mr. Mitchell
caused his mood to flatten for a time in 2012 and into the first part of 2013.  I reject,
however, the contention that the Accident or its sequelae led to a genuine depression
or that Mr. Anderson’s downcast mood has interfered with his capacity to
work since the early months of 2013.

[182]     For years going
forward, the ill‑effects of the Accident will likely continue to be
triggered in a way that causes Mr. Anderson impairment of his functional
capacity for prolonged sitting and sustained computer work.  However, through
the implementation of proper ergonomic supports and appropriate breaks, and by
adherence to the recommended treatments, there is a strong substantial
possibility of improvement of Mr. Anderson’s overall physical condition,
including his tolerance for sustained sitting and computer work, which will
give rise to a concomitant reduction in the frequency, duration and intensity
of his symptomatic flares and their functional impairment.  In turn, Mr. Anderson’s
residual capacity for work in general and in his field in particular will be
enhanced.

[183]     I find a strong
chance of a real and substantial possibility that within a year or two, Mr. Anderson
will be capable of safely and consistently performing sustained computer work for
40 hours per week, where not less than 6.5 hours per day are productive.  His
productive work endurance would be better still in jobs that did not require as
much prolonged sitting at a computer as do the positions he has held in the
past.  Further, the evidence points to the likely event that with the passage
of a few to several more years, Mr. Anderson’s episodic symptomatic flares
will have tapered‑off significantly and become more infrequent and mild
in their intensity and will therefore interfere less with his work capacity.

[184]     That said,
it is unlikely that Mr. Anderson will completely recover to his former
self even if he diligently follows through with the recommendations of Dr. Jung,
Dr. Hershler and Ms. Craig.  The suggested therapies and activities
do not offer him a cure.  Particularly given that Mr. Anderson has also
injured his facet joints, he will likely remain prone to episodic flares of his
lingering right‑side neck and shoulder/trapezius symptoms for years into
the future, although on a declining scale over time.  The exacerbation of his
symptoms will almost invariably be provoked by prolonged sitting especially
while working at his computer.  However, with his insight about the postures
that trigger and exacerbate his symptoms, so long as Mr. Anderson remains
committed to following those recommendations and maintains a program of
stretching, strengthening and exercising at home, the evidence as a whole strongly
favours a high chance of a real and substantial possibility of a much improved
outcome in time.

[185]     The
likelihood that Mr. Anderson’s functional impairment will persist indefinitely
is very low.  His impairment will almost certainly not extend for the remainder
of his working life or close to that duration.

[186]     All things
considered, I do not fully accept Dr. Powers’ grim forecast of Mr. Anderson’s
future job or career prospects.  As discussed, his opinion, including that the
number of careers previously available to Mr. Anderson have been
significantly narrowed on account of the Accident, are based in large measure
on materially inaccurate factual underpinnings.

[187]     The evidence
establishes that a full‑time position as the director of operations or as
a full‑time consultant at Preston is not presently available to Mr. Anderson,
as he has effectively been replaced.  There is some potential that Preston may
continue to expand and may require more elaborate and updated systems that Mr. Anderson
could provide.  On the other hand, as I alluded to previously, there is some
evidence that Preston could be sold in the future, or that the volume of
consulting work available to Mr. Anderson may continue to decrease.

[188]     One of the
potential options for Mr. Anderson would be to move into a management
position with another dealer, such as the one he held at Cell Solutions.  That
does not seem particularly feasible at this point in time given that he remains
a shareholder in Preston and thus may be in a conflict position by working for an
industry competitor.  That difficulty would sort itself out if Preston is sold
or Mr. Anderson decides to sell his shares independent of a sale of the
business.

[189]     The
combined evidence of Messrs. Mitchell and Almog indicates that, due to external
forces in the industry, there is little chance of a real possibility for Mr. Anderson
to establish his own dealership where he could work at his own pace.

[190]     An important
negative contingency applicable to Mr. Anderson is that, for at least the
next number of years, he will be a more undesirable employee from an employer’s
standpoint than one who does not require work place accommodations.  This is especially
problematic for Mr. Anderson in terms of reviving his foothold in Preston on
a full‑time basis or in his chosen field at large.  I am satisfied that
because of the Accident, the likelihood is he has been temporarily rendered
less competitively employable in the cell phone industry.  The establishment of
Preston was probably a unique opportunity for Mr. Anderson and is not
likely to come around again for some time, if ever.

[191]     Also to be
taken into account is that Mr. Anderson’s level of education and the
challenges that he would face in resuming post‑secondary training,
unconnected to the Accident, in combination with his Accident‑induced
injuries, also present obstacles in his ability to resume earning at the 90^th
Percentile Category.  The likelihood of his earning in that bracket has been seriously
compromised for the next several years, and possibly longer.

[192]     Mr. Anderson
made submissions to the effect that his reduced involvement in Preston after the
Accident had a detrimental impact on its bottom line and, thus, on his ability
to receive dividends on his shares.  He contended that the asserted reduction in
Preston’s profitability is a negative contingency to be taken into account in
assessing his loss.  This branch of Mr. Anderson’s argument does not rise
to the threshold of a real and substantial possibility; it is pure speculation
and will not be considered.

[193]     The
evidence leaves no legitimate room for doubt of a strong real and substantial
possibility that Mr. Anderson’s impaired earning capacity, caused by the Accident,
will generate a pecuniary loss into the future.  The next step is to quantify
that loss.

[194]     In my
view, this is not an appropriate case to engage the “earnings approach” to
assess Mr. Anderson’s damages.  It is instead preferable to quantify his
loss by taking into account the factors that inform the capital asset approach
laid out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) [Brown].
That assessment involves considering factors such as whether he: (i) has been
rendered less capable overall of earning income from all types of employment;
(ii) is less marketable or attractive as a potential employee; (iii) has lost
the ability to take advantage of all job opportunities that might otherwise
have been open to him; and (iv) is less valuable to himself as a person capable
of earning income in a competitive labour market.  The evidence establishes
that all of these factors have application to Mr. Anderson.

[195]     Bearing in
mind the applicable legal principles, including the Brown criteria, in
light of the evidence and weighing the pertinent contingencies, I conclude
that the sum of $140,000 is the present value of a fair and reasonable
measure of Mr. Anderson’s loss of future income-earning capacity.

·       Non-Pecuniary
Damages

[196]     Mr. Anderson
seeks an award for non‑pecuniary damages in the amount of $75,000.  The
defendant counters that a non-pecuniary award of between $40,000 and $50,000 is
fair in the circumstances.

[197]     Non-pecuniary
damages are intended to compensate a plaintiff for the pain, suffering and loss
of enjoyment of life and of amenities experienced as a result of the
defendant’s negligence.  They are meant to encompass such damages suffered to
the date of trial and those that the plaintiff will suffer into the future.

[198]     The award
should be fair and reasonable for both parties, as those concepts are measured
against the adverse impact of the particular injuries on the particular
plaintiff: Hunt v. Ugre, 2012 BCSC 1704 at para. 176.  While
fairness is assessed by reference to awards made in comparable cases, because
each case is decided on its own unique facts and calls for an individualized
assessment, it is neither possible nor desirable to develop a “tariff”: Lindal
v. Lindal, [1981] 2 S.C.R. 629 at 637; Dilello v. Montgomery, 2005
BCCA 56 at paras. 39-43.  The process is one of assessment and is not
amenable to mathematical precision: Drodge v. Kozak, 2011 BCSC 1316.

[199]     In Stapley
v. Hejslet, 2006 BCCA 34 [Stapley] at para. 46, Kirkpatrick J.A.
set out a non-exhaustive list of factors to be considered in awarding damages
under this head.  They include: the plaintiff’s age; the nature of the injury;
the severity and duration of the pain; disability; emotional suffering; loss or
impairment of life; impairment of family, marital and social relationships;
impairment of physical and mental abilities; loss of lifestyle; and the
plaintiff’s stoicism.

[200]     For the
first seven months or so following the Accident, Mr. Anderson’s injuries were
neither disabling nor deeply painful; many of them resolved and those that
lingered were not interfering with his life or job performance.  As time passed
and he continued to assume the aggravating posture for long hours at work, his
neck and shoulder/trapezius symptoms and pain worsened and brought about the companion
ill-effects of a depletion of his energy, a low mood and, most devastating for Mr. Anderson,
a compromised ability to perform his “dream job".  Mr. Anderson ultimately
had to give up his full‑time position as Preston’s director of operations
to take a vastly subordinate role in the company that he helped found and in
which he had invested so much of his time, talent and sense of self‑worth.

[201]     Mr. Anderson’s
injuries have had no adverse impact on his ability to do housework, yard
maintenance or to participate in leisure activities, such as watching
television, attending movies, playing video games, backpacking or socializing
to the extent he desires.  Nor have they interfered in any appreciable way with
his enjoyment of physically intensive sports like ice hockey and snow skiing. 
The only recreational pursuit that may have been mildly curtailed by Mr. Anderson’s
injuries is his participation in golf.  However, the evidence on that point,
including how frequently he played golf prior to the Accident, was poorly
developed.  The other problem he has experienced on account of the Accident is
driving for extended periods of time without taking appropriate breaks.

[202]     In the
near future, the lingering after‑effects of the Accident will continue to
pose a serious hurdle to Mr. Anderson’s ability to re‑establish
himself in his niche area and the cell phone industry at large.  They may also
have foreclosed his ability to more fully reintegrate with Preston, which, as I
have noted, is the type of business opportunity that might never again arise
for Mr. Anderson.

[203]     In prior
cases I have said that enduring pain, even when it becomes intermittent and
mostly low-grade, can compel unwelcome adjustments to one’s work life and
lifestyle and cloud the pleasures of life, as it has in the case at hand.  Taking
care to not aggravate his residual symptoms and trying to manage his pain has
become part of Mr. Anderson’s everyday life and will continue for many years
to come, although, in all likelihood, on an ever-declining scale.

[204]     I have
reviewed the authorities placed before me by counsel.  As they provide general
guidelines only I do not propose to address them in any detail, except to say
that I find the cases submitted by Mr. Anderson’s counsel to be more
instructive in that their facts more closely approximate my findings in this
case.

[205]     Having
regard to the Stapley factors and the other case authorities in the
context of the evidence in the case at hand, in my opinion a fair and
reasonable award for Mr. Anderson’s non-pecuniary damages is $60,000.

·       Cost
of Future Care

[206]    
The approach to be taken in assessing future care costs was settled by
the Supreme Court of Canada in Krangle (Guardian ad litem of) v. Brisco,
2002 SCC 9, at paras. 21-22:

[21]  Damages for cost of future care are a matter of
prediction.  No one knows the future.  Yet the rule that damages must be assessed
once and for all at the time of trial (subject to modification on appeal)
requires courts to peer into the future and fix the damages for future care as
best they can.  In doing so, courts rely on the evidence as to what care is
likely to be in the injured person’s best interest.  Then they calculate the
present cost of providing that care and may make an adjustment for the
contingency that the future may differ from what the evidence at trial
indicates.

[22]  The resulting award may be
said to reflect the reasonable or normal expectations of what the injured
person will require.  Jane Stapleton, “The Normal Expectancies Measure in Tort
Damages” (1997), 113 L.Q.R. 257, thus suggests, at pp. 257-58, that the
tort measure of compensatory damages may be described as the “‘normal
expectancies’ measure”, a term which “more clearly describes the aim of awards
of compensatory damages in tort: namely, to re-position the plaintiff to the
destination he would normally have reached …  had it not been for the tort”. 
The measure is objective, based on the evidence.  This method produces a result
fair to both the claimant and the defendant.  The claimant receives damages for
future losses, as best they can be ascertained.  The defendant is required to
compensate for those losses.  To award less than what may reasonably be
expected to be required is to give the plaintiff too little and unfairly
advantage the defendant.  To award more is to give the plaintiff a windfall and
require the defendant to pay more than is fair.

[207]     Damages
for the cost of future care are meant to compensate for the financial loss to
be reasonably incurred by an injured plaintiff to sustain or promote his or her
mental and physical health: Bystedt (Guardian ad litem of) v. Hay, 2001
BCSC 1735, aff’d 2004 BCCA 124; Gignac v. Insurance Corporation of British
Columbia, 2012 BCCA 351 at para. 30 [Gignac].  The claimed
services and items must be medically justified.  Being medically justified is
not synonymous with the more stringent requirement of being medically
necessary: Langille v Nguyen, 2013 BCSC 1460, aff’d 2014 BCCA 430.

[208]     Recommendations
made by physicians and other health care professionals such as an occupational
therapist, are relevant in determining whether an item or service is medically
justified: Gregory at para. 38; Jacobsen v. Nike Canada Ltd.
(1996), 19 B.C.L.R. (3d) 63 (S.C.), quoted with approval in Gregory at para. 38. 
However, to successfully advance a future cost of care claim it is not
necessary that the health care provider testify to the medical justification of
each and every item of care being claimed.  What is required is some
evidentiary link between the physician’s assessment of pain, disability, and
recommended treatment and the care recommended by a qualified health care
professional: Gregory at 39; Gignac at paras. 31-32; Aberdeen
v. Zanatta, 2008 BCCA 420 at paras. 43‑53, 63.  General
contingencies and those specific to the plaintiff are to be taken into account
where and as appropriate: Gignac at para. 52.  The amount of the
award is necessarily affected by the nature of the future care and its anticipated
duration.

[209]     The
standard of proof for an award for future care is the determination of the real
and substantial future possibilities.

[210]     Whether a
plaintiff is prepared to accept care that is in his or her best interests is a
relevant factor.  Where the plaintiff testifies that he or she will not submit
to the recommended treatment even though it is medically justified on the
evidence, an award may not be made or the quantum of it may be discounted: Coulter
(Guardian ad litem) v. Leduc, 2005 BCCA 199 [Coulter]; O’Connell
v. Yung, 2012 BCCA 57 [O’Connell].  Also material are: (i) whether the
plaintiff’s judgment on the question of whether he or she will adhere to the recommendation
has been impaired by the injuries inflicted by the tortfeasor; and, (ii) whether
the evidence establishes that the plaintiff may ultimately be forced by
circumstances to participate in treatment that he or she has expressed a desire
to avoid, especially if the injuries are grave: O’Connell at paras. 61-62;
Van v. Howlett, 2014 BCSC 1404 at paras. 78-79.

[211]    
There is a distinction between a case where there is evidence that the
plaintiff will not follow the recommended treatment (as in O’Connell and
Coulter) and a case where no evidence has been lead one way or the
other.  The Court of Appeal recently addressed this nuanced point in Lo v.
Matsumoto, 2015 BCCA 84, at paras. 20-21:

[20]  I agree with counsel for the plaintiff that there is no
hard and fast rule that requires a plaintiff to testify that he intends to use
every item in the “wish list” of an occupational therapist in order to justify
some award. On the other hand, a plaintiff must prove his case, both in terms
of need and the likely utility of the item sought: see O’Connell v. Yung,
2012 BCCA 57 at para. 68. Where the costs claimed are not matters of
absolute necessity, a plaintiff cannot assume that the court will simply accept
the recommendations of occupational therapists or even of medical
practitioners. Unfortunately in this case, Mr. Lo was not closely examined
in chief or cross-examined on every item in the therapist’s report or on any
discrepancies between his own testimony and what he had told the therapist.

[21]  Considering, however, the
seriousness of Mr. Lo’s back injury and the fact that it is expected to
cause him pain or discomfort indefinitely, I believe that the trial judge
should have made some allowance for physical therapy sessions (costed at $600
per year) in the long term; a facility fee to pursue an exercise program
(costed at $357 per year until age 65 when it would drop to $250); some yard
maintenance (costed at $100 per year); non-prescription medications for back
pain ($400-$500 per year); and something for the possibility that he would use
the “Intimate Rider” equipment that might assist with his sexual function.
Doing the best that I can with the evidence to which we were referred, I would
increase the award for future care costs by $7,000.

[212]     The court,
therefore, should be cautious about reducing or eliminating altogether an award
for the cost of future care simply on the basis that the injured plaintiff has
not confirmed a willingness to participate in a medically justified course of
care, or currently says that he or she will not follow the recommended
treatment.  The court should act with similar circumspection where the
plaintiff has not previously used the recommended type of treatment.  This is
because fairness requires that the court be alive to the prospect that an
injured person’s disposition may change, or that he or she may not have had the
means or ability to follow certain courses of treatment in the past.

[213]     The
defendant’s position is that the evidence supports only a modest award for the
cost of over-the-counter medications.  That assertion is not supported on a
fair assessment of the evidence or the proper application of the law.

[214]     It is not
clear how long Mr. Anderson intends to remain in Medellin.  The evidence indicates
that Medellin is a modern, developed city where there are clinics that offer
physiotherapy, massage, acupuncture and other treatments.  There is nothing in
the evidence to suggest that he would be unable to access those treatments or
others such as chiropractic care, laser treatments, ergonomic equipment or
vocational assessments while he resides there.  I would note that Mr. Anderson’s
understanding about the cost of physiotherapy in Medellin closely approximates
the cost of such treatments in evidence.

[215]     Applying the
applicable principles in light of my findings of fact pertinent to the issue, I
conclude that Mr. Anderson is entitled to an award for the cost of his
future care (expressed in present value dollars where applicable) comprised of
the devices and treatments summarized below.

a)    Rehabilitation/Intensive
Exercise Program

[216]     Dr. Hershler,
Dr. Jung and Ms. Craig all recommended that Mr. Anderson partake
in a structured form of active rehabilitation or a physical therapy program. 
The rationale is that it will assist his postural dysfunction and improve his overall
functioning, including his capacity for sustained computer work.

[217]      I have adopted
Ms. Craig’s opinion that Mr. Anderson does not appear to have reached
his maximum physical rehabilitation.  I favour her detailed recommendations
concerning Mr. Anderson’s participation in an intensive rehabilitation
program guided by a physiotherapist to address his muscular strength,
endurance, flexibility, postural education and general conditioning.  Based on Ms. Craig’s
costing, I award the sum of $1,990 to cover the cost of a six‑week
individualized program of that kind.

b)    Massage
Therapy/Chiropractic Treatment

[218]     Massage
therapy appears to have given Mr. Anderson the most palliative relief in
the past.  Dr. Hershler recommended weekly massage for a six‑month
period as a means of “breaking the cycle" ($2,394).  Ms. Craig endorsed
the benefits of massage therapy provided over the long term as part of Mr. Anderson’s
larger pain management strategy.  I think the implementation of both of their
recommendations would provide a complementary therapeutic approach and is
justifiable and reasonable in this case.  The portion of the award reflecting Ms. Craig’s
recommendations should allow Mr. Anderson to access massage therapy on a
declining basis over the next several years, and not for the duration of his
life expectancy, as he has sought.

[219]     Dr. Jung
and Ms. Craig also recommended that Mr. Anderson have a course of
chiropractic treatment.  Dr. Jung explained that chiropractic manipulation
is intended to address Mr. Anderson’s pain related to his facet joint
injury.  I find that it is reasonable and justifiable to make a separate award
to cover the cost of chiropractic care for a limited time on a tapering-off basis,
to provide Mr. Anderson additional symptomatic relief largely for his
facet joint injury in accordance with Dr. Jung’s suggestion.

[220]     An award
for these treatment modalities accords with Ms. Craig’s opinion that while
an immediate burst of therapy would be helpful, Mr. Anderson requires some
supporting therapy as part of his future pain management program to settle his episodic
flares.

[221]     I have
determined that the sum of $7,800 is fair and adequate to cover Mr. Anderson’s
future cost of massage therapy and that $3,500 is fair and reasonable for
his chiropractic treatment.  The latter sum is sufficient to encompass some chiropractic
sessions that incorporate additional laser heat treatments should Mr. Anderson
wish to do so.

c)     Acupuncture/Intramuscular
Stimulation Therapy

[222]      Ms. Craig’s
endorsement that Mr. Anderson undergo six sessions of intramuscular
acupuncture in the hope that stimulation of his trapezius muscle by that
procedure will lead to better function and temporary reduction in his pain
levels is reasonable.  I award the sum of $335 for that care.

d)    Facet Joint
Blocks and Prolotherapy

[223]     Dr. Jung
recommended these more invasive forms of treatment to assist Mr. Anderson
in managing his pain stemming from his facet joint injury.  According to Dr. Jung,
a prolotherapy injection may improve pain management and function for three to six
months at a time.  The benefits from a facet block injection, if successful,
last for about six months.

[224]     Mr. Anderson
claims the sum of $1,900 to enable him to access two courses of prolotherapy ($200
per course) and two courses of facet block injections at $750 per treatment in
order to determine whether one or both of them will be therapeutic.  He submits
that if those injections are more helpful than the ongoing cost of his
chiropractic care, it would be fair to both parties to use the long‑term
components of his chiropractic award to fund the ongoing costs of one or both
injections.  I agree that this strategy is reasonable and have taken that into
account in quantifying the cost of Mr. Anderson’s future chiropractic care.

[225]     An award
of $1,900 for the initial courses of prolotherapy and facet block
injections is granted.

e)    Anti‑Inflammatory
Gel

[226]     Mr. Anderson
seeks an award to the cover the cost of anti‑inflammatory gel over the
next 45 years.  As is the case with his claim for other ongoing care, his
suggested duration is excessive.

[227]     The claim
for the cost of such gel is justifiable based on Dr. Hershler’s evidence and
reasonable for some duration and I award $250 for this item.

f)      Ergonomic
Devices

[228]      Ms. Craig’s
recommendations that Mr. Anderson have an ergonomic workstation comprised
of an adjustable chair ($100 – $450), a sit‑stand work station ($846), and
a keyboard/mouse positioning bracket, as well as an ergonomic assessment ($250 –
$450) to facilitate his optimum posture with computer work.  These are plainly reasonable
and justifiable.  An award of $1,300 is granted.

g)    Vocational
Services

[229]     Dr. Powers
recommended that Mr. Anderson received ten hours of vocational services to
help him investigate alternative careers suited to his medical condition,
transferable skills, work history, preferences and interests.  That is money
well spent and I award the sum of $1,575.

·       Special
Damages

[230]     Mr. Anderson
is permitted recovery of the out-of-pocket expenses he reasonably incurred as a
result of his injuries.  His entitlement is derived from the fundamental
principle that an injured person is to be restored to the position he would
have been in had the negligence not happened: Milina v. Bartch (1985),
49 B.C.L.R. (2d) 33 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.).

[231]     In
addition to the sum of $2,524.74 in agreed special damages, Mr. Anderson
seeks reimbursement of $9.95 for a bottle of Advil and $425 for massage
treatments he received in 2011.  Despite the fact that the massages were not
provided by a registered massage therapist, they are clearly recoverable on the
evidence.  Mr. Anderson’s entitlement to reimbursement for the bottle of Advil
is too obvious to warrant comment.  The additional sum of $434.95 in
special damages is made.

MITIGATION

[232]      The
defendant contends that Mr. Anderson has failed to mitigate his non‑pecuniary
and pecuniary losses with respect to his medical care and his employment and
seeks a reduction in the range of 25-30% of his pecuniary and non‑pecuniary
damages.

[233]     Mr. Anderson
is not entitled to recover damages that he reasonably could have avoided.  His positive
duty to take reasonable steps to minimize his losses brought about by the
Accident is well-settled: Janiak v. Ippolito, [1985] 1 S.C.R. 146;
Chiu v. Chiu, 2002 BCCA 618; Shapiro v. Dailey, 2012 BCCA 128; Gregory
at para. 53.

[234]     The law
does not hold Mr. Anderson to a high standard of conduct in mitigation.  The
threshold is satisfied if he has taken steps that are reasonable in the
circumstances to reduce his loss: Middleton v. Morcke, 2007 BCSC 804 at para. 37.

[235]    
The burden of proof to show that Mr. Anderson could reasonably have
avoided some parts of the loss rests on the defendant.  It is not enough for
the defendant to merely suggest some other course of conduct that Mr. Anderson
might have followed; the mitigation test is more rigorous than that.  In Gregory,
the Court of Appeal articulated the mitigation test in these terms:

[56]  I would describe the mitigation test as a
subjective/objective test.  That is whether the reasonable patient, having all
the information at hand that the plaintiff possessed, ought reasonably to have
undergone the recommended treatment.  The second aspect of the test is
“the extent, if any to which the plaintiff’s damages would have been reduced”
by that treatment.  The Turner case, on which the trial judge
relies, uses slightly different language than this Court’s judgment in Chiu:
“there is some likelihood that he or she would have received substantial
benefit from it…”.

[Emphasis in original]

[236]     I will
first address the defence position in relation to Mr. Anderson’s medical
care, which has three branches of argument.  One branch is based on the
assertion that, had Mr. Anderson seen a doctor in or around May 2011 when
it became apparent to him that his symptoms were not resolving through massage
therapy, he would have set things in motion that would have accelerated his
overall recovery.  In that regard, the defendant emphasized Ms. Craig’s
testimony to the effect that the optimal time for an injured person to receive
treatment, such as physiotherapy followed by an exercise and stretching
program, is within the acute phase of the injury.  The defence also relied on Dr. Hershler’s
concurrence with the general proposition that the sooner an injured person
obtains appropriate treatment, the sooner he or she will recover.

[237]     I am not
troubled by the fact that Mr. Anderson initially opted to try massage
therapy to address his symptoms rather than see a medical doctor.  Given that
he did not have a family doctor at the time, that some of his injuries were
resolving, that he had experienced success with massage therapy in the past and
that his symptoms were not disrupting his work or lifestyle, I consider his course
of conduct to be reasonable.  The landscape changed, however, in about June or
July 2011.  At that time, it became apparent to Mr. Anderson that his neck
and shoulder/trapezius symptoms were not getting better on a sustained basis through
massage.  Indeed, they were worsening significantly and starting to detrimentally
affect his job performance and fracture his relationship with Mr. Mitchell.

[238]     Mr. Anderson
is an intelligent man who had some level of medical coverage and financial
resources available to him.  Acting reasonably, he ought to have made an effort
to find a medical doctor to have his condition medically assessed in or around
July 2011.  By that juncture, it was not reasonable for Mr. Anderson to maintain
his expectation that his stubborn symptoms would run their course and disappear,
and to take no further steps for several months to promote his physical betterment.

[239]     Had Mr. Anderson
acted reasonably in the circumstances, he would have consulted a medical
doctor, either a new family doctor or a physician at a walk‑in clinic,
not later than the end of July 2011.  That finding triggers the companion
thorny question of what might then have happened.  The defendant’s argument is
short on evidence and cogency in that regard.

[240]     It seems
likely that the treating doctor would have referred Mr. Anderson for some
type of treatment.  The nature of the referral that may have been made in
relation to Mr. Anderson can be no more known than to suppose it would
likely not have been to a massage therapist and may have been to a
chiropractor, a physiotherapist or a physiatrist.  The best evidence on that
point is to look at what actually happened when Mr. Anderson finally saw Dr. Barber
in 2012.  He was referred to a physiatrist, Dr. Murray, who performed
spinal manipulations and instructed Mr. Anderson with respect to certain
neck exercises.  Mr. Anderson derived some therapeutic effect from Dr. Murray’s
ongoing treatments, although they were not long‑lasting.  There is not a
scintilla of evidence to support the inference that had Mr. Anderson
undergone such or similar treatments earlier, that is, in the latter part of
2011, or more generally, had come under the care of a physiatrist at that time,
he would not have sustained the losses that he did.  Stated somewhat
differently but to the same effect, the defendant has not proved that had Mr. Anderson
been assessed by a family doctor earlier than he did, he would have received a
substantial benefit from any referral that the doctor would have made, or from any
treatment that the doctor would have provided, or that it would have otherwise
made a positive difference to his path to recovery and lessened his loss.

[241]     I turn
next to the defendant’s complaint that Mr. Anderson’s failure to seek
further treatment for his symptoms after Dr. Murray retired in 2013
constitutes a failure to mitigate.

[242]     Mr. Anderson’s
last visit to Dr. Murray was on January 11, 2013, a few weeks before he
left for South America.  His symptoms improved considerably while he was
travelling in South America and I accept that he genuinely believed he was
finally reaping the benefits of the treatments he had received in the preceding
months.  In the circumstances, it was not unreasonable for Mr. Anderson to
forgo further treatments of any sort during that period.

[243]     Shortly
after he returned to Vancouver and resumed a more regular pattern of working at
his computer, Mr. Anderson’s symptoms became exacerbated.  Dr. Murray
was no longer practising.  Dr. Hershler testified that he no longer knows
of any practising physiatrist that provides the techniques used by Dr. Murray.
In response to the significant flare of his symptoms, Mr. Anderson re‑instated
weekly massages until he relocated to Medellin in the fall of 2013.

[244]     Once back
in Medellin, Mr. Anderson expended almost no effort to seek out treatments
there aimed at providing him symptomatic relief or improvement.  He claims that
he tried to connect with a kinesiologist, but gave flimsy reasons as to why he
was unsuccessful in doing so.  Fairly recently he located an English‑speaking
acupuncturist with whom he says he plans to follow up after this trial.  He also
came across a physiotherapy clinic in Medellin that offers, under one umbrella,
several therapeutic services that he had “been searching for” such as massage
therapy.  However, as at the time of trial, he had not been in touch with the
clinic to schedule an appointment.

[245]     To
elaborate, Mr. Anderson received no treatment in respect of his symptoms
between November 2013 and early July 2014.  In the circumstances, Mr. Anderson
ought reasonably to have taken steps to institute some type of palliative‑like
care after he relocated.  I am satisfied that if he had comported himself
in that reasonable manner, he would have better managed his symptoms and pain
and thereby improved, at least mildly, both his function and his work capacity and,
thus, avoided some part of his loss.  The fact that he underwent a flurry of
intensive treatments when he returned to Vancouver in July 2014, indicates that
he was in need of such treatment.  A modest reduction in the award made for his
non‑pecuniary damages, past loss and future loss of earning capacity
ought to be made to reflect his failure to mitigate in this way.

[246]     The third arm
of the defendant’s assertion is primarily that Mr. Anderson neglected to
mitigate his damages by failing to undertake an active rehabilitation program
as soon as possible, as was recommended by Dr. Hershler and subsequently by
Ms. Craig.  The defendant submits that if Mr. Anderson had simply followed
those reasonable courses of action, his injuries would not have worsened, as
they did, and would not have adversely impacted his function or impaired his
work performance at Preston to the extent that they did.

[247]     In
considering this aspect of the defence position, it is important to be reminded
of the timeline of when those treatment recommendations were made.  Although Dr. Hershler
saw Mr. Anderson on August 29, 2013, his written report was not prepared
until May 18, 2014.  His report stressed the importance of Mr. Anderson
participating in an active rehabilitation program that was comprised of four
components: weekly deep tissue massage over a six-month period; weekly sessions
with a personal trainer for three months, followed by monthly sessions for the
subsequent six months period; ten treatments of deep laser heat; and regular
topical use of an anti-inflammatory gel.

[248]     There is
no evidence about when Mr. Anderson became aware of Dr. Hershler’s recommendations.
The probabilities of the situation support the inference that he learned of them
sometime after the date of Dr. Hershler’s report that is, after May 18,
2014.  By then, Mr. Anderson had taken several steps aimed at his physical
recovery, including some steps that were consistent with certain of Dr. Hershler’s
recommendations.  More specifically, he had been under the care of a physiatrist,
had received several massage treatments over various periods, had participated
in a sustained weekly program under the supervision of a personal trainer and
was continuing to perform the neck strengthening exercises he had been taught
by Dr. Murray as well as frequent self‑manipulations of his neck.

[249]     Mr. Anderson
credibly testified that the benefit he gleaned from his sessions with a
personal trainer was mild, at best.  In the circumstances, it does not strike
me as unreasonable that he did not reinstate sessions with a new personal
trainer upon learning of Dr. Hershler’s recommendations.  I would also
point out that not long after Dr. Hershler wrote his report, Mr. Anderson
added chiropractic and deep laser heat treatments to his regimen, as had been
suggested.

[250]     I find
that Mr. Anderson became aware of the contents of Ms. Craig’s report
shortly after it was prepared on August 27, 2014.  Through that report, he
understood that Ms. Craig believed he had not yet reached his maximum
physical rehabilitation and endorsed his participation in an individualized
rehabilitation program guided by a physiotherapist, which she envisioned would
address his muscular strength, endurance, flexibility, postural education and
general conditioning.

[251]     Implicit
in Mr. Anderson’s position concerning his loss of future earning capacity
is that he accepts Ms. Craig’s opinion and plans to follow her
recommendations, as well as those of his other experts.  In light of that and
given that when the reports of Ms. Craig and Dr. Hershler came to Mr. Anderson’s
attention, approximately three and a half years had elapsed since the Accident
and his neck and shoulder/trapezius symptoms were still problematic, he ought reasonably
to have taken steps in fairly short order, in either Vancouver or Medellin, to follow
Ms. Craig’s recommendations concerning his participation in a
rehabilitation program.  The probabilities of the evidence support the
inference that Mr. Anderson’s involvement in such a program would have
likely enabled him to better cope with his pain and promoted his recovery.  I
conclude that the benefits flowing from adherence to these recommendations may
not have had adequate time to materialize in any appreciable way prior to
trial.  Consequently I have not relied on this rationale to reduce his pre-trial
losses.  I do conclude, however, that a small part of his future pecuniary loss
and his non‑pecuniary loss would have been avoided had he comported
himself in this reasonable way.

[252]     The
defendant’s argument concerning Mr. Anderson’s alleged failure to mitigate
on the employment front was difficult to follow.  I find that for the majority
of months in the year leading up to trial, Mr. Anderson worked fewer hours
for Preston than he was capable of working and that his income stream was reduced
accordingly.  In that period, he took virtually no reasonable steps to
investigate business or entrepreneurial opportunities that may have been suitable
to his residual work capacity, and did not look for, much less apply for, a job
to supplement his income from Preston.  Although Mr. Anderson was not
expected to seek out employment with any of Preston’s competitors in that time
frame, his utter inaction, beyond the lukewarm attempt to set up a sideline
with Cesar, in the face of a dwindling supply of consulting work from Preston,
is not reasonable.

[253]     I consider
it probable that had Mr. Anderson reasonably applied himself in this
regard, he would have succeeded in reducing his losses to some degree.  In
fairness, a portion of Mr. Anderson’s damages for his pre‑trial loss
and his future loss of earning capacity ought to be reduced to reflect this
feature of his failure to mitigate.

[254]     The other
arguments presented by the defence in relation to mitigation, as best I can
discern them, were unpersuasive.

[255]    
Based on the foregoing, I make the following reductions to Mr. Anderson’s
damages:

–
5% reduction of his non‑pecuniary damages;

–
12% reduction of his award for past loss of earning capacity; and

–
15% reduction of his award for future loss of earning capacity.

COSTS

[256]     If the
parties are unable to agree as to costs, they may file written submissions
implementing a time table of their choosing that incorporates a final deadline
of February 29, 2016.

“Ballance J.”