IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151223

Docket: M114762

Registry:
Vancouver

Between:

Andrew Ferguson

Plaintiff

And

Tanya Elizabeth
McLaughlin

Defendant

Before:
The Honourable Madam Justice S. Griffin

Reasons for Judgment

INTRODUCTION

[1]            
Andrew Ferguson was injured in a car accident six years ago, on
October 23, 2009, when he was 21 years old. The injuries were not
catastrophic, but he has some lasting symptoms. This case is about
determining the nature of his injuries, their impact on his life, and any
damages that flow.

[2]            
What complicates the damages assessment is the fact that Mr. Ferguson
was young at the time of the accident and without an established earnings
pattern. This diminishes the Court’s ability to do a “before and after”
comparison of his earnings in order to determine a loss of earning capacity. This
assessment is further complicated by the fact that Mr. Ferguson was and is
devoted to an acting profession which he can still pursue and which may never
have been terribly lucrative.

[3]            
The key issue in terms of loss of earning capacity is: to what extent will
the plaintiff’s injuries impair his ability to pursue the kind of employment
that might support him while he pursues an acting career?

[4]            
The defendant accepts that Mr. Ferguson has suffered a soft tissue
injury, and that he is entitled to some damages for past wage loss, loss of
earning capacity, cost of future care, special damages, and non-pecuniary
damages. However, the defendant’s position is that the damages should be less
than that claimed by the plaintiff.

[5]            
Liability for the accident has been admitted by the defendant. The defendant
does not advance any argument of contributory negligence or failure to mitigate.

ISSUES

[6]            
I will address the issues in the following order:

a)    the plaintiff’s
abilities pre-accident;

b)    the plaintiff’s
abilities post-accident;

c)     the
plaintiff’s prognosis;

d)    loss of past
income and future earning capacity;

e)    cost of future
care;

f)      non-pecuniary
damages;

g)    special damages.

The Plaintiff’s Abilities Pre-Accident

[7]            
The Court heard evidence from the plaintiff’s mother, the plaintiff, a
former part-time employer, and the plaintiff’s family doctor as to what the plaintiff
was like before the accident.

[8]            
The plaintiff was a child who was both gifted and had learning
challenges. He has great verbal abilities and a good memory for
information conveyed orally. His mother remembers he could recite dialogue back
after watching a television show.

[9]            
His learning challenges have to do with his ability to decode and
process information, which is at a slower speed than others, and he is easily
distractible. He also has poor fine motor skills, including skills
requiring eye-hand coordination. As a child, he had difficulty with printing
and handwriting and was taken to an occupational therapist to assist in
developing these skills. He suffered anxiety and was bullied in school as
a youngster.

[10]        
The plaintiff’s parents made sure to engage him in out-of-school
activities and he became interested in acting, starting at age three.

[11]        
Eventually acting became the plaintiff’s passion and by pursuing it he
overcame his self-esteem issues that had come from his earlier difficulties in
school. He enrolled in a “gifted learning disabled” school in high school and
was highly involved in theatre, including both acting and stage-hand/lighting
work.

[12]        
In 2005 the plaintiff had a part-time summer job at a movie theatre,
working in the concession stand, cleaning, inventory and the like.

[13]        
The plaintiff graduated with honours from Grade 12 in 2006.

[14]        
The plaintiff was chosen as valedictorian for the graduating class of
his high school and gave a speech emphasizing that success is working towards
the thing in life that is important to you. He embraces that philosophy and so,
is not motivated by money, but by doing things that are important to him.

[15]        
The plaintiff was in good health and strong before the accident. For a
while he enjoyed kickboxing, but he had stopped that a couple of years before
the accident. He liked to jog distances from two to five kilometres, three
times a week. He could carry heavy equipment around on a film set or as stage
crew. He did not have difficulty standing or sitting at length.

[16]        
From 2006-2008 the plaintiff did a variety of activities, some of which
were physically demanding but which he had no problem doing: he did two weeks
of volunteer work in Mexico; he worked moving furniture for a charity called
Homestart Foundation that collects and donates furniture to those in need; he
worked in a couple of coffee shops as a barista, standing for six to eight hours
during his shifts and lifting large bags of coffee beans; he travelled to
Europe, carrying his backpack on his back and walking long distances, and when
his mother joined him for two weeks, he had no difficulty lifting her heavy and
large suitcase.

[17]        
The plaintiff has, in his resumé,
a list of the theatre productions he was involved with from 2003 forward,
sometimes as a stage hand or grip or lighting crew, sometimes as an actor,
writer or stage manager.

[18]        
In the fall of 2007 the plaintiff enrolled at Langara College, taking an
English course and a philosophy course. Because of his learning difficulties,
including slow reading speed, he wished to focus on English as a prerequisite
to a university or college acting program rather than take many courses. In his
first term he did not do well. He then undertook a psycho-educational
assessment, the results of which enabled him to take extra time in completing
tests, use a computer, and have a note-taker in class during the second term.

[19]        
After his one year at Langara College the plaintiff was clear in his
mind that acting was his one real goal, and so he decided to focus on getting
admitted to a theatre school. He began auditioning at theatre schools, and working
in any theatre production he could. He produced some of his own theatre productions
as well.

[20]        
In 2008 he continued to involve himself in acting and theatre. That year
he was involved in writing, producing and acting in his own play then called “Why
I Hate Utah”. Later he re-wrote the play and it was produced as “Hole In The
Wall” in 2011.

[21]        
In 2008 the plaintiff also worked more hours as a furniture mover for
Homestart Foundation. This job involved loading large pieces of furniture onto
a truck and securing it and unloading it at a warehouse or delivering it to
clients. He had no difficulty with the physical demands of the job. He left
that job in the fall of 2008 and did not seek out employment there afterwards.

[22]        
The plaintiff’s former employer at Homestart Foundation, Ms. Vikki
Stevenson, testified at trial. She said that they were happy to have the
plaintiff work for them because he was very personable, people liked working
with him, and he was thorough and reliable. She said that if he had been
available they would have continued to employ him.

[23]        
In summary, before the accident the plaintiff was not a person who
worried about his health. He was healthy and had not seen his family physician,
Dr. Linda Lepard, very frequently. However, he did have a
longstanding problem with sleeping, with racing thoughts often keeping him
awake.

[24]        
As well, the plaintiff had decided he would devote his career to acting,
probably mostly stage acting, and to writing plays. He was not daunted by the difficulties
of making a living this way, and expected he would support himself through the
kinds of jobs many actors do, including working as a restaurant server or bartender
or working on film sets as stage or lighting crew. This latter work included
working for his brother who is in the film business.

[25]        
The plaintiff thought that if he was not able to earn a living as an
actor, he might eventually try to teach acting in a community centre, although
he felt he would need to have several years of experience as an actor to be
able to do that.

The Plaintiff’s Abilities Post-Accident

[26]        
The accident occurred on October 23, 2009 soon after 11:00 p.m.,
when he was a backseat passenger of a car, sitting behind the driver. The car
was crossing through an intersection when the defendant Tanya McLaughlin drove
her car into the driver side of the vehicle in which Mr. Ferguson was a
passenger, hitting it at right angles. Ms. McLaughlin was travelling
at an approximate speed of 50 kilometers per hour when she saw the
other car, slammed on her brakes, and the collision occurred. Her airbag
exploded. Her car was subsequently written off due to the damage.

[27]        
Mr. Ferguson was wearing his seatbelt. He heard screeching tires
just before the impact, turned his head in time to see the other car, and then
felt a powerful impact which moved the vehicle he was in laterally and caused
his body to move side to side. The doors on the drivers’ side of the vehicle
were too damaged to open and so he and the other three people in the car got
out through the passenger side doors.

[28]        
After the accident Mr. Ferguson did not think he was hurt. One of
the other passengers in the vehicle he was in was upset and shaking and so he
hugged her. The group decided to go for a drink at a local bar, after which Mr. Ferguson
walked home to his mother’s house where he was living.

[29]        
The next day Mr. Ferguson felt stiff and a little sore in his lower
back area, under his ribs and above his buttocks. His mother asked him if he
was hurt, and he said his back was hurt. This hearsay evidence only goes to the
question of whether he subsequently made up a back injury, given that he did
not go to the doctor right away. I accept that Mr. Ferguson had a sore
back immediately after the accident.

[30]        
His left wrist was also sore. Over approximately the next week his mid-back
also began to hurt.

[31]        
Initially Mr. Ferguson did not think his injuries were serious and that
they would go away on their own.

[32]        
At the time, Mr. Ferguson was involved in rehearsing for a play he
co-wrote called “Phase 42”. This was taking up a great deal of his time. Rehearsals
generally went from 10:00 a.m. to 6:00 p.m. with a lunch break. He was also
involved in some of the set construction. The production occurred over the last
three weekends of November 2009.

[33]        
However, Mr. Ferguson felt his back pain getting worse, moving up
his back and between the shoulder blades. One day he felt a sharp pinch and was
in such pain he could barely move without a cane for support. He then, with the
encouragement of his mother, made an appointment to see his family doctor, Dr. Lepard.

[34]        
Dr. Lepard recommended massage therapy for the plaintiff, which he
undertook and which provided temporary but not lasting relief.

[35]        
On Dr. Lepard’s advice, Mr. Ferguson also went for
physiotherapy treatment. The physiotherapist recommended he do certain exercises,
which he followed on a daily basis. He has continued these exercises over
time, adjusting them according to the recommendations of the
physiotherapist. The plaintiff felt some benefit from adjustments to his neck
performed by the physiotherapist.

[36]        
In mid-2012 Mr. Ferguson’s counsel referred him to Dr. John le Nobel,
a specialist in physical medicine and rehabilitation, for an assessment. Dr. le Nobel
followed Mr. Ferguson over the years, last seeing him on March 30, 2015. Dr. le Nobel
prepared six reports that were introduced into evidence and he testified
at trial.

[37]        
The defence suggested that Dr. le Nobel lost his impartiality
as he began to treat Mr. Ferguson as his patient, as opposed to a
patient referred to him for an independent medical-legal assessment. I was not
persuaded by this submission. Dr. le Nobel was interested in seeing
what might work to make the patient better and accepted what the patient
reported about his symptoms and life, but that was clearly set out in his
opinions. There was no information provided to Dr. le Nobel that
contradicted Mr. Ferguson’s self-reports, and there were no signs that Mr. Ferguson
was malingering or exaggerating his symptoms.

[38]        
The fact that Dr. le Nobel had a genuine concern for Mr. Ferguson
and wanted to see him get better may make him a good physician but it did not,
in my view, make him biased.

[39]        
Dr. le Nobel concluded that the accident caused Mr. Ferguson
myofascial tissue injury causing him chronic pain in the spinal and paraspinal
area. Chronic pain is pain that lasts longer than the time for tissue
healing, that is, longer than 10 to 12 months post-injury. He has
pain aggravation with backward bending, which is suggestive of the lumbar
facet joints as potential pain generators. Dr. le Nobel recommended
an increase in supervised exercise, which he thought might lead to some degree
of improvement but not to a pre-collision state. He also recommended that Mr. Ferguson
have repeat image-guided injections to his lumbar 4/5 facet joints and possibly
epidural space as a diagnostic and therapeutic measure for pain management, as
well as tricyclic medication as a pain modulator and sedative before bed.

[40]        
Mr. Ferguson followed all three recommendations of Dr. le Nobel.

[41]        
With respect to the supervised exercise, Mr. Ferguson was referred
to a kinesiologist, Wilson Chan, and worked with him from December 2012 to
February 2013. He did a variety of exercises to increase his core and
strength, as well as some cardiovascular exercises and stretching. Mr. Ferguson
continues with these exercises on his own.

[42]        
Mr. Ferguson also began attending Pilates as a form of exercise in
2013 and continues to do so. He will often alternate exercises from day to day,
as between those taught to him by the kinesiologist, and those learned in Pilates,
doing 20 minutes to half an hour each day.

[43]        
The guided injections were of little benefit. The prescription
medication regime was started but had not been continued or proven beneficial by
the time of trial.

[44]        
There is no doubt that Mr. Ferguson has been dedicated to trying to
get better through fitness. By his last visit to Dr. le Nobel in
March 2015, Mr. Ferguson was able to perform 28 push-ups from his toes and
maintain straight legs off the examining bench for over 60 seconds, which Dr. le Nobel
felt showed a considerable level of fitness. Mr. Ferguson’s evidence at
trial was that before the accident he could do 50 push-ups without pain, and
that he stopped at 28 in front of Dr. le Nobel because of pain
between his shoulder blades.

[45]        
By far the most helpful expert at trial was Mr. Min Kyi, an
occupational therapist, who performed a functional capacity assessment of Mr. Ferguson
and produced a report in June 2013. He performed a subsequent assessment of Mr. Ferguson
and produced a further report in April 2015.

[46]        
Mr. Kyi performed a series of tests on Mr. Ferguson to assess
his functional abilities and limitations. The results suggest that Mr. Ferguson
was trying very hard to perform his best in the testing. The testing also
suggests that Mr. Ferguson overstated his abilities and understated his
limitations and pain.

[47]        
Mr. Kyi’s testing revealed that Mr. Ferguson’s physical and
functional abilities decline over a normal workday, especially with static work
activities. His primary limitations relate to his neck-shoulder, mid-back, and
low back/buttocks. He is fully functional for many activities for short
periods, but not for prolonged activities. For example, he can do mild-moderate
bending for short periods, if it is less than 30‑45 degree bending, but
should minimize or avoid static bending especially if  greater than 45 degrees
or involving moving heavier items.

[48]        
Based on Mr. Kyi’s testing, Mr. Ferguson’s body tolerances are
limited to: sitting no more than one to two hours at a time; standing still for
no more than 30‑60 minutes at a time, or dynamic standing for no more
than 1.5-2.5 hours at a time; climbing a ladder with one hand free lifting less
than five to ten pounds; and limited repetitions of pushing, pulling, lifting
or moving of light (10-20 lbs.) or medium (20-50 lbs.) objects. However, Mr. Ferguson’s
interactions with medium objects are limited to lifting close to the body,
below shoulder height, and performed occasionally only; above shoulder lifting
is difficult.

[49]        
Mr. Kyi’s findings and conclusions were credible and supported by
other evidence, including from people who have observed the plaintiff and the
plaintiff’s own evidence of how certain attempted jobs have proven too painful
for him to tolerate.

[50]        
The defendant obtained an opinion of Phil Towsley, an occupational
therapist registered in B.C., who reviewed Mr. Kyi’s reports. Mr. Towsley
critiqued Mr. Kyi’s methodology in respect of his second assessment,
because Mr. Kyi did not perform as full an assessment as he had on his
first assessment of the plaintiff. However, Mr. Kyi answered this
criticism, explaining that he did not find it necessary to do so because the
results of the mini-assessment were so consistent with his first, more thorough
assessment.

[51]        
I note that Mr. Towsley did not assess the plaintiff himself and
agreed he had no basis for offering any opinions about the plaintiff.

[52]        
Mr. Kyi’s credentials were far superior to Mr. Towsley’s and I
preferred Mr. Kyi’s evidence.

[53]        
Since the accident Mr. Ferguson’s mother has seen him rub and hold
his back. She has seen him come home from physiotherapy and put a hot water
bottle or ice on his back and lie down. She saw him try but then give up on
household tasks she would ask him to do that required bending. Examples of the
latter are: the task of scraping old paint off some outdoor steps and
repainting them; weeding a part of the garden; re-laying the lawn; and carrying
heavy bags which she used to see him carry before the accident.

[54]        
The plaintiff moved out of his mother’s home in 2013 and became
responsible for his own costs of accommodation and food. In roughly 2014, he
and his girlfriend, Alecia Casselman, began living together. She is also
pursuing a career in acting.

[55]        
The plaintiff and Ms. Casselman met approximately four years ago
when they were both enrolled in acting courses at Capilano University. She
testified to observing him taking breaks and stretching in between physical
exercises in class. She also has seen him stretching at home, and tossing and
turning in bed. She notices him complaining of a sore back.

[56]        
Both Ms. Casselman and the plaintiff testified that his sore back
has negatively affected their sex life.

[57]        
Since the accident, Mr. Ferguson has continued to pursue an acting
career, choosing education consistent with that career. He has been involved in
a large number of plays, some of which were part of his educational
requirements. His involvement has been as an actor as well as a producer and
writer, and on occasion as part of a set or lighting crew, although the
sense of his evidence was that he did not do the heavy work in that regard. His
educational achievements have moved at a pace that reflects his slower
processing speed and some changes in his interests or assessment as to which
educational institutions are best for him.

[58]        
As he pursued the best education for his acting style and abilities, Mr. Ferguson
attended Capilano University in 2011-2012, attaining a one-year certificate in
acting for stage and screen; attended Studio 58 Theatre School at Langara
College in 2012; and is now attending Simon Fraser University, where he is enrolled
in a Contemporary Arts Bachelor program. The plaintiff’s plan is to graduate from
that program in the spring of 2017.

The Plaintiff’s Prognosis

[59]        
The court has a responsibility to carefully assess the evidence
regarding injuries in a case of this nature, where the medical evidence is so
reliant on the plaintiff’s self-reports.

[60]        
Mr. Ferguson was a credible witness. I found that he did not inflate
his injuries or exaggerate his evidence in an attempt to inflate his claim for
damages. He admitted facts that were less than flattering. He did not give up in
the face of his injuries but worked hard to exercise his way out of his
limitations. His conduct after the accident was that of a person who truly
believed he would get better and who wanted to do everything in his power to
minimize the impact of the accident on his life.

[61]        
Dr. le Nobel offered the opinion that the plaintiff has
chronic pain, myofascial tissue injury, and low back and lower limb pain, as
well as possible lumbar facet joint pain. He concludes that absent the
accident, the plaintiff would not have suffered these injuries. He is of the
opinion that the plaintiff’s prognosis for a full recovery is guarded, although
he may make some further improvement in his pain symptoms by working with a
kinesiologist.

[62]        
Mr. Kyi’s evidence was entirely consistent with the conclusion that
the plaintiff continues to suffer pain caused by his injuries, and is now and
will continue to be limited in some of his physical abilities.

[63]        
The defendant called the evidence of Dr. Duncan McPherson, an orthopaedic
surgeon, who performed a medical examination of the plaintiff at the request of
the defendant.

[64]        
Dr. McPherson was a very unhelpful medical witness.

[65]        
Dr. McPherson has not practised medicine for years. He stopped his
work as a surgeon in 1992 or 1994 and ceased practising medicine in 1997.
It is difficult to assume that he is up to date on medical studies regarding
soft tissue injuries and pain.

[66]        
Dr. McPherson is wholly reliant on the Insurance Corporation of
British Columbia (“ICBC”) for his income and has been for years. He was clever,
and I mean this not in a complimentary way, when questioned about his reliance
on ICBC for his income in the last several years, hinting at the notion that he
had other sources of income. He then agreed the other sources of income were
simply his investment income.

[67]        
Dr. McPherson’s approach to examining patients appeared to be dependent
on a verbal test. He asks the patient to explain the patient’s complaint, and
if the patient does not mention pain in his answer, he concludes that in his
opinion the patient does not have pain and thus does not have a lasting injury.
Dr. McPherson stated that when patients describe complaints in the
activities they can do, rather than stating they have pain in a body part, that
is because they are not sure where the pain “should” be, implying that the
patient is not telling the truth if they do say they have pain.

[68]        
Dr. McPherson was in my view overly confident that the question he poses
to patients is a scientifically valid “truth-o-meter”, foolproof in discovering
whether pain exists or not. He seemed completely close-minded to the
possibility that some patients might not understand what he means by “complaint”
or may not consider “pain” to be a complaint but a condition that they simply
deal with on a day-to-day basis.

[69]        
Dr. McPherson found it highly relevant that when he asked the
plaintiff about his present complaints relating to the accident, the plaintiff
did not say he has pain, but said he is limited to certain activities now, such
as he cannot do heavy work, or has issues with his back hurting during sexual
activities. Dr. McPherson appeared to conclude that because the plaintiff
did not say “I have pain in my back” during the interview, he therefore did not
have a chronic pain injury in his back.

[70]        
I found Dr. McPherson’s logic to be at best simplistic and
superficial. At worst it reveals that Dr. McPherson holds such a degree of
cynicism regarding patients advancing claims against ICBC that he is not
independent and his evidence is unreliable.

[71]        
When it was suggested to Dr. McPherson he may not have written down
exactly what the patient said he was absolutely confident that he was always a
perfect recorder of what patients said to him. This is so despite the brevity
of his report. A reasonable, educated person would allow for the possibility of
mistakes being made in transcribing a patient’s comments, but Dr. McPherson
did not do so, illustrating his close-minded disposition.

[72]        
It seems obvious to me that when describing his limitations to Dr. McPherson,
the plaintiff was intending to convey to Dr. McPherson that the accident
caused these limitations because of the pain he suffers, as he explained in
court. The fact that he might not have spelled out to Dr. McPherson in a
more explanatory way that ”the accident caused me to have pain in my back which
limits me from these activities” is not an admission that proves that his
injuries do not cause him pain in his back.

[73]        
Also, Dr. McPherson gave significant weight to the fact that the
plaintiff exhibits a full range of motion. He seemed unwilling to accept that a
person can have a full range of motion but also suffer from pain. Dr. Lepard,
the plaintiff’s family doctor until she retired in 2011, said that it is not
uncommon for a patient with an injury to have full range of motion but also to
have pain. I prefer Dr. Lepard’s evidence on this point, as it is consistent
with the plaintiff’s evidence that he has pain on prolonged activity
on a recurring basis.

[74]        
Dr. Lepard did agree that the plaintiff’s range of motion suggested
that his whiplash injury was not as serious as Category 3 and 4, but was more
in the Category 2 range, of being in the medium to low end of whiplash soft
tissue injuries.

[75]        
Dr. McPherson concluded that there was no “objective” evidence of a
disability relating to the motor vehicle accident. This is not a helpful
opinion in relation to the injuries in this case. Pain may not something that
can be measured objectively with a scientific instrument, but it can still be
disabling.

[76]        
I note that even the defendant concedes on the whole of the evidence
that the plaintiff has suffered a soft tissue injury which will cause some
future loss of earning capacity.

[77]        
I do not find Dr. McPherson’s evidence to be of any value in
deciding the issues in this case.

[78]        
I prefer the evidence of Dr. le Nobel and Mr. Kyi, as
supported by the evidence of the plaintiff himself, regarding the fact that the
plaintiff has continued to suffer from back pain since the accident, which gets
worse on some activities, and which has not resolved and is likely to continue
in the future, limiting him in some of his activities.

[79]        
The whole of the evidence persuades me that the accident caused injuries
to the plaintiff that continue to this day and are likely to be chronic and to
continue into the future. These injuries cause him back pain that becomes
intolerable with prolonged standing, sitting, bending, or heavy lifting.

Loss of Past Income and Future Earning Capacity

[80]        
While the accident was in 2009, the plaintiff only claims past income
loss for the years 2013 to 2015, because he was either travelling or in
school and not seriously looking for paid employment in the years 2009-2012. He
also claims a loss of future earning capacity.

[81]        
I find that before the accident, the plaintiff was capable of working in
occupations that could have helped support him while he pursued his acting
career, including work as a furniture mover, set builder and decorator, and
lighting crew.

[82]        
As mentioned, the plaintiff concentrated on his education and acting
career for several years following the 2009 accident. He did not seek paid
employment until approximately 2012. Once he sought out and tried various paid
jobs, limitations caused by his pain became more evident.

[83]        
For approximately one month in the summer of 2012, between school terms,
Mr. Ferguson worked as a cleaner at a hostel located in Vancouver. He
stripped and made beds; did laundry; mopped; cleaned bathrooms, floors, and
windows; and took out garbage and recycling. He worked between three to five
shifts per week, eight hours per shift. He found the work caused him some
difficulty and pain, so much so that at times he felt he couldn’t move. He
would try to stretch, relax, and take over-the-counter muscle relaxants such as
Robaxacet. Eventually he quit on the advice of his family doctor, Dr. Bell
(as his former family doctor, Dr. Lepard, had retired by then).

[84]        
In 2013 Mr. Ferguson did not work. He mostly concentrated on his
education and acting. However, he did try to find a job by walking around shops
and stores and personally handing in his resume. He visited about 20 or 30
businesses, got only one interview, and did not get the job. In his interview
he made inquiries about the physical nature of the job so that he could
determine whether it would be suitable given his back issues. This may have
been one reason he did not receive a job offer.

[85]        
In May 2014 the plaintiff found a job at a delicatessen located in the
Granville Island market in Vancouver. The job required a lot of bending and
reaching into the deli case to retrieve items for customers, as well as
carrying and moving heavy containers of food products, reaching overhead for
products, and cleaning. This work caused him considerable pain in his low back,
so much so that one morning he found it impossible to bend down to put on his
pants and socks, and so he phoned in sick that day. Because of the risk of him
injuring himself, he and the employer parted ways by the end of May. The
employer was unable to accommodate him in giving him shorter shifts or changing
the nature of the work.

[86]        
Ms. Susan Foot, one of the principals of the deli company that had
employed Mr. Ferguson, gave evidence at trial, and her evidence was
consistent with that of Mr. Ferguson. Ms. Foot testified that the job
required someone to be strong and without physical restraints, because of all
of the reaching and lifting. She testified that she found Mr. Ferguson to
be a delightful employee, one with very personable skills who understood
customer service, and was great working with customers and popular with the
other staff. She explained that it was the wrong job for someone with a
back issue.

[87]        
As for other part-time employment, Mr. Ferguson has done work as a “standardized
patient”, that is, acting as a patient with symptoms for testing of medical
students. He has also tutored English to a foreign doctor. He made only nominal
sums from this work.

[88]        
Mr. Ferguson realizes that he was unsuccessful in looking for work
and that he did not know how to address his back issues with prospective
employers.

[89]        
Mr. Ferguson was assessed by a vocational consultant, Dr. John
Pullyblank, for the purposes of this proceeding. Dr. Pullyblank
recommended that the plaintiff work with a professional consultant to assist
him in looking for work.

[90]        
Acting on this advice, Mr. Ferguson hired Chris Wong, an
occupational therapist with Vocational Solutions Inc., in May 2015. Mr. Wong
assisted him in rewriting his resume and giving him advice on job interviews,
including not bringing up his back problems, and giving him ideas of places to
look for work.

[91]        
Mr. Ferguson ended up being hired by a business in June 2015. This
business dispenses medical marihuana products. The employer allows him to move
around to perform various tasks, and is supportive of accommodating his back
pain issues. Mr. Ferguson is unsure of the job security, however, and
whether the business will survive regulatory restrictions being imposed on that
industry.

[92]        
The plaintiff’s older brother Chris Ferguson had learning difficulties
as a child similar to those of the plaintiff, and also sought out a creative
outlet. He is now a film producer and employs others to help behind the camera,
as well as set decorators, grips, and light crew. He describes himself as the “king
of nepotism”, gladly hiring friends and family on his films. He testified that in
the past, pre-accident, he hired his brother, the plaintiff, to work on
short-term projects and would be willing to do so in the future if his
brother was physically able to do the work.

[93]        
The evidence suggests that Chris Ferguson was working on productions in
Vancouver in the summers of 2013, 2014, and 2015. He suggested that a person
working as part of a set decoration crew earns approximately $250 a day, and
that the work could employ someone for six months of a year.

[94]        
The plaintiff testified that he would have been willing to work for his
brother in set decoration if he had not been injured. However, this work
is physically demanding and requires the ability to move and carry heavy
objects, to bend quite low, and to lift objects over one’s head.

[95]        
The evidence of Mr. Kyi supports the common sense conclusion that Mr. Ferguson’s
pain and limitations will preclude him from these types of film crew jobs in
the future. He is not able to carry heavy objects repeatedly as part of a work
day, whereas he could have done this before the accident.

[96]        
Other jobs that might have helped the plaintiff sustain an acting
career, such as jobs that require standing or sitting still for long
periods of time, are also now ruled out by Mr. Ferguson’s injuries caused
by the accident. This conclusion is not only supported by Mr. Kyi’s
opinion, it is also supported by Mr. Ferguson’s experiences.

[97]        
Mr. Ferguson found and accepted a job at a toy store in July 2015. He
presumed he could be assigned tasks that would be suitable. However he was
assigned a cashier position. This job required long periods of standing in a
small area, without permission or room to stretch or opportunity to change
positions. He completed two 4.5 hour shifts, but found the static standing
caused him too much pain. After the end of the first shift he was in so much
pain he could not walk home. On his second shift, he was required to help
customers by carrying heavy items to their vehicles, which he found difficult
to manage. He used muscle relaxants, sought out physiotherapy, and stretched
afterwards, but concluded he was physically unable to tolerate the job, and so
he quit, a reasonable decision.

[98]        
Mr. Ferguson finds that standing still for more than half an hour
is too difficult for him, without the opportunity to take mini-breaks and
stretch. This limits the employment available to him.

[99]        
In the summer of 2015 Mr. Ferguson also volunteered at a kids’ club
for a few days a week. He enjoys working with children and was hoping the
volunteer work might lead to employment possibilities in day care. He has
worked three days per week at four hour shifts, and finds it physically
suitable because he can move around. He did discover that the paid employment
opportunities would require him to work at least three days per week. This
could interfere with his ability to take a full course load and do theatre performances
while still completing his schooling.

[100]     Despite
enjoying working with children in a day care setting, Mr. Ferguson does
not have an interest in becoming an elementary school teacher. He thinks his
learning disability would cause him difficulty in teaching subjects such as
math or reading and writing.

[101]     The
plaintiff took to heart critical comments from one acting instructor given
several years after the accident, to the effect that his body movements appear
stiff. The plaintiff attributes this to the injuries suffered in the accident.

[102]     From
observing him in the courtroom, I can see that the plaintiff carries his body
in a particular way, somewhat like a soldier on parade, and I can understand
that this might be due to a stiff back. I can understand the plaintiff’s
concern that this demeanour might limit him in some roles, as might his
inability to be as physical as he might otherwise be, were it not for the
injuries caused by the accident.

Vocational Experts

[103]     Two experts
performed vocational assessments on Mr. Ferguson: Dr. John Pullyblank
retained by the plaintiff, and Dr. Dennis Magrega retained by the defendant.

[104]     Both
experts seemed well-qualified and reasonable in their approach. They relied on Mr. Kyi’s
assessment and performed their own assessments of the plaintiff.

[105]     Dr. Pullyblank
administered a battery of psychological and vocational tests to Mr. Ferguson.
Among the findings, it is significant that he found Mr. Ferguson’s
responses were not suggestive of a catastrophic approach to pain, meaning he
does not let pain rule his life. This was also my impression of the plaintiff.

[106]     Dr. Pullyblank
also recognized that Mr. Ferguson was committed to the arts, and assumed it
was likely that before the accident his career scenario was going to be typical
to that of actors. This meant he was likely to pursue acting and intermittently
pursue paid jobs that required few credentials, tended to be unskilled, and
tended to rely on physical ability.

[107]     Knowing
that Mr. Ferguson remains committed to a career as an actor, Dr. Pullyblank
was of the opinion that the accident has caused Mr. Ferguson to lose the
opportunity to do heavy work, an approximate 9% decrease in his job options. Further,
once one removes from those remaining options jobs requiring substantial
amounts of walking, static standing or body dexterity, he has a 61% drop in
options, post-accident. Dr. Pullyblank was of the opinion that Mr. Ferguson
may have also lost the ability to do some jobs rated as medium, a further drop
to 63% in options. This loss of options does not take into account the possible
loss of options due to Mr. Ferguson’s difficulty with reaching.

[108]     Furthermore,
due to Mr. Ferguson’s pre-existing learning disability, he is already
precluded from or disadvantaged in pursuing careers where he has to process a
great deal of written information. In other words, Mr. Ferguson is a
plaintiff whose earning capacity was more reliant on physical work to begin
with. Thus, Dr. Pullyblank was of the view that this means that the
physical limitations caused by the accident likely result in an even greater
percentage of decrease in job options from that available to Mr. Ferguson
pre-accident, and so the range of a 9% to 63% decrease in options is likely
an underestimate.

[109]     Dr. Pullyblank
was also of the opinion that the injuries caused by the accident, and the need
for pain medications from time to time, may reduce the plaintiff’s
effectiveness, reputation, and choice of roles as a professional actor.

[110]     Dr. Pullyblank
described a person with vocational issues as needing to “bob and weave” to
find jobs suitable for any physical or cognitive abilities. Given Mr. Ferguson’s
situation of having some pre-existing issues as well as the physical issues
caused by the accident, Dr. Pullyblank recommended that he obtain
vocational rehabilitation services. In cross-examination he agreed that he made
this recommendation thinking it might help improve the plaintiff’s chance of
success in finding work.

[111]     Dr. Magrega
agreed that if one accepts the fact of the plaintiff’s injuries (he did
not doubt them but left it to others to determine), the plaintiff has lost
access to jobs typically performed by actors. These jobs are typically physical
jobs. There are notably fewer sedentary occupations available as part-time
work.

[112]     Dr. Magrega
was of the opinion that between 9% and 10% of jobs are heavy work; 18% are
medium; and just over 70% are in the limited to light range. His evidence
suggested that the plaintiff might have lost access to jobs categorized as
heavy work, and some but not all medium work jobs, but that he would still have
access to most but not all limited or light range work.

[113]     Dr. Magrega’s
psychological testing revealed a number of potential jobs that might match up
with the plaintiff’s interests, although this does not mean they would be
suitable due to his limitations. Mr. Ferguson was taken through the top
ten of these in his evidence and it was clear that none of them are likely
occupations for him.

[114]     Dr. Magrega
agreed that if the plaintiff could not do types of jobs such as cashier or
deli-clerk, which are considered light work, he had lost access to a number of
jobs that would normally have been open to him. Dr. Magrega agreed
that it would be more than 30% of jobs that would not be open to the
plaintiff.

[115]     The loss
of earning capacity has three periods to consider: the past loss from 2013
to trial; the future loss from trial until when he is expected to finish his
education, which is in July 2017; and the future loss from July 2017 and
forward. I will address the latter loss first.

Assessment of Future Loss of Earning Capacity: 2017 Forward

[116]     The
approach to measuring earning capacity best suited to this case is in my view
the capital asset approach that considers a reduction in capacity to earn
income to be the loss of a capital asset, considering the factors and
principles set out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d)
353 (S.C.) and Perren v. Lalari, 2010 BCCA 140.

[117]     The stage
at which this accident occurred in the plaintiff’s life makes it very difficult
to do a mathematical comparison of what he would have earned but for the
accident and what he is capable of earning now, given his injuries.

[118]     I am,
however, persuaded that the plaintiff’s vocation is acting, especially in
theatre, and this would be unlikely to be very financially rewarding both pre
and post-accident. Post-accident the plaintiff is able to continue in an acting
career, although he will now have some limitations in the roles he can play.

[119]     Whatever
work the plaintiff might have chosen as paid employment was always going to be
supplemental to his acting career. The plaintiff’s future but for the accident
was likely to be one where he would take employment that would support him and
give him flexibility to go to auditions and, if successful in landing a role,
to take time off work to be involved in a stage production. After the accident,
this is still going to be the plaintiff’s likely path, but due to his injuries
the issue is whether he will suffer a loss of capacity to earn income this way.

[120]     It is
impossible to draw a straight line from the opinions of Drs. Pullyblank
and Magrega to the assessment of loss of employment capacity, because of
the invariable adaptability of humans to their situations. In other words, it
would be wrong to conclude that if there are between 31% and 63% fewer job
options available to the plaintiff, he has therefore suffered a 31% to 63% loss
of future earning capacity. Some jobs will be closed to Mr. Ferguson, but
as a result, he might seek out other jobs that he would not have considered but
for the accident.

[121]     Nevertheless,
considering all of the facts and the particular context of the plaintiff’s
vocational commitment to a career in acting, and his pre-existing learning
qualities that ruled out many types of careers for him, I find that there is a
substantial possibility that the plaintiff will not be able to work in jobs
that were open to him before the accident. To put it another way, I am
persuaded on the evidence that the plaintiff is less valuable to himself and to
employers as an employee, and he will have fewer job opportunities available to
him, due to the back pain he will suffer with many kinds of work.

[122]     The
plaintiff’s counsel submits the loss of future earning capacity, as of
July 2017 when the plaintiff is expected to have completed his schooling,
ranges from $263,809 to $538,611.

[123]     Counsel
for the defendant submits that $30,000 is an appropriate figure to measure loss
of future earning capacity, recognizing many positive contingencies: that there
are still several job categories open to the plaintiff and he might find
lighter work, such as teaching acting; he may have some improvement in his
abilities or ability to find work with help; and he might succeed in acting and
make his living that way.

[124]     The
plaintiff called the evidence of an economist, Erik Nilsen, who put together
various scenarios and estimates of the present value of future economic losses,
based on his instructed assumptions.

[125]     The
scenario which generates the greatest damage claim for the plaintiff assumes
that but for the accident, after completing his education in July 2017 (treated
as year 3 in the scenarios), he would have worked for his brother’s company or
a similar employer six months per year while pursuing his acting career,
earning $1,250 per week; but now, post-accident, he will be limited to
part-time work at a rate of $13.50 per hour. This scenario then assumes various
end-dates for the loss.

[126]     With
respect, I do not find this scenario to be a realistic possibility. There
was some realistic chance pre-accident that the plaintiff may have been
able to work for his brother and I do find that this opportunity has been
lost due to the injuries sustained in the accident. But this chance would have
been intermittent and rare, as the real possibility is that only
occasionally would the plaintiff’s time away from acting line up with his
brother’s production of a film locally. In other words, I consider that this
opportunity of employment was not going to be such a strong and steady possibility
as to support a constant baseline in a mathematical model of the plaintiff’s
loss.

[127]     An
alternative scenario also presented by Mr. Nilsen on instructions is to
assume that absent the accident, Mr. Ferguson would have been able to earn
a wage of $18.75 for his part-time work, doing physical jobs as a way of
supporting himself while he pursues acting; but with the accident, he will be
limited to positions earning $13.50 per hour and working half the time he
otherwise would have.

[128]     The wage
rates used by Mr. Nilsen were taken from tables of wages paid for different
types of work. The average of the median wages for certain heavier work occupations
that were suited to the plaintiff pre-accident is $18.75. The average of the
median wages for light work, such as waiter/barista or light duty cleaners, is
$13.50. It is recognized that Mr. Ferguson might not be suited for full‑time
work in these two lighter duty options, but they do provide a useful comparison
of rates paid for light work versus heavy work.

[129]     If one
used this alternative scenario to assess the plaintiff’s loss and assumed he
would suffer a similar loss from July 2017 until age 65, his loss of future
earning capacity would be present-valued at $263,809 on Mr. Nilsen’s
numbers.

[130]     This
scenario assumes the plaintiff would have been working 40-hour work weeks for
six months of the year after he graduates from university, when not working as
an actor, had he not been injured. I accept this as a reasonable starting assumption
on average, taking into account it may be that the plaintiff would have divided
his time between acting and working in a slightly different mix.

[131]     The second
scenario also assumes that now that he is injured, Mr. Ferguson will be
working approximately 20 hours a week at a lower hourly rate, as his maximum,
and will spend the rest of his time involved in theatre or acting projects.

[132]     The
problem with this scenario is that the plaintiff does not appear to me to be as
limited by his injuries in the hours he can work as it assumes. The fact is
that he works long hours when he is producing or acting in a play. What limits
him is the type of work he can do. Mr. Ferguson can no longer do certain
types of work because of his injuries, that is, work of a physical nature or
requiring long periods of static standing or sitting, or great amounts of bending
and reaching. If a position is physically demanding on him he may well be limited
to 20 hours per week or less; but if it is not, he may be able to work 40 hours
per week.

[133]     I find
that the scenarios presented by the plaintiff are too bleak. However, the defendant’s
position underestimates the difficulties that will be faced by the plaintiff.

[134]     I accept
that there is a real possibility that the lighter types of jobs available to
the plaintiff will be lower paying than the jobs he could have qualified for,
absent his injuries caused by the accident.

[135]     The
evidence establishes a real possibility that with his injuries, the plaintiff
is going to have more difficulty finding a suitable job, and earning a higher
hourly rate, than he would have been capable of absent the accident.

[136]     I find
there is a strong possibility that because of his injuries and special
circumstances, namely, his limited job options, the plaintiff will suffer a
loss of future earning capacity for the rest of his working life.

[137]     Another
way of approaching the plaintiff’s loss of earning capacity is to estimate what
it is on an annual basis, and then apply a multiplier to determine the present
value of that loss. As an example, an annual loss of $10,000 income to age 65,
from year 3 post-trial, would be $230,108 taking into account labour market
contingencies, using the multiplier provided in Mr. Nilsen’s evidence.

[138]     The second
before-injury scenario set out by Mr. Nilsen estimates that were it not
for the accident, the plaintiff might be earning $19,500 a year, if working
40 hours a week at $18.75 per hour for six months of the year. Post-accident,
he will earn $7,020 per year if working 20 hours a week at $13.50 per hour
for six months of the year. Presumably if the 20 hours a week were
expanded to 40 hours, he might earn double this, or $14,040. This roughly
$5,500 difference accounts for what he might have earned had he not been
injured and able to earn a higher hourly rate, but it does not take into
account the difficulty he might have in finding and sustaining a job with
longer work hours.

[139]     I find
that with the plaintiff’s injuries, he might have greater difficulty finding
a job, or sustaining a job on a full-time basis as opposed to part-time;
yet it is still possible he will find a good full-time job that allows him
flexibility of movement and so does not exacerbate his pain and become
unmanageable.

[140]     Weighing
all the different methods of assessment, and the positive and negative
contingencies, I consider a reasonable assessment of the plaintiff’s loss of
earning capacity to be annually roughly $5,500 taking account of a lower rate of
earnings, plus $1,000 taking account of fewer job opportunities, totalling $6,500
per year, starting in July 2017 when he finishes his education and going to age
65. My consideration of these figures takes into account the positive
contingency that he will nonetheless find a well-paying job. Applying
the multiplier identified by Mr. Nilsen which includes labour market
contingencies, namely the multiplier of 23.108, the present value of this
loss is $150,202.00.

[141]     I assess Mr. Ferguson’s
loss of future earning capacity as at July 2017, when he is expected to
finish his education and graduate, at $150,000 as a round estimate.

Assessment of Past Loss of Earning Capacity

[142]     Counsel
for the plaintiff relies on an analysis of alternative scenarios provided by Mr. Nilsen
which suggests that Mr. Ferguson’s past loss of earning capacity, up to
trial, can be measured as anywhere between approximately $34,000 to as high as
$85,000 depending on the factual findings.

[143]     The defendant
submits that an appropriate award for past loss of earning capacity, up to
trial, is $10,000, recognizing the plaintiff’s primary focus on completing his
education and furthering his acting career in the years since the accident.

[144]     I found
none of the scenarios presented by the plaintiff regarding his past loss to
square with the time the plaintiff wished to and did spend on his education on
top of his acting and theatre.

[145]     Mr. Ferguson
testified that he would have been willing to work as crew for his brother’s
film productions as a summer job even if this limited his ability to put on a
play in the summer.

[146]     The defendant
disputes the likelihood of this, given the plaintiff’s devotion to acting
and the many productions he was involved in.

[147]     I lean
towards the defendant’s perspective on this point. I find that Mr. Ferguson
was at a period of his life where he was particularly devoted to his acting
craft, and would have been so while completing his education even without the
accident. I find that even if he was not injured, there is a very remote chance
that he would have sought out paid employment for much of the summers of his
school years, as this would have meant he would have to forgo working on his
own theatre projects.

[148]     I do
accept that the plaintiff could have earned more than he did during this time,
since he had a difficult time finding and sustaining a job due to his painful
back. Recognizing this is a rough assessment, I find that the plaintiff
suffered a loss of $10,000 from 2013 to trial.

Assessment of Future Loss of Earning Capacity: Trial to 2017

[149]     The last
period of time for assessment is the period between trial and July 2017
when Mr. Ferguson will graduate from his university program.

[150]     For
similar reasons to those I applied to Mr. Ferguson’s past loss of earning
capacity, I conclude that it is likely that Mr. Ferguson will continue to
be dedicated to his acting craft over the next approximately two years and will
be unlikely to seek out paid employment during much of the summers. I also
recognize that the plaintiff will experience some difficulty in finding and
sustaining employment due to his injuries. I award Mr. Ferguson an
additional $10,000 for loss of future earning capacity for the period between
trial and July 2017.

[151]     Before I
complete the analysis of loss of earning capacity, I will comment on one issue
that arose in the evidence. There was evidence that Mr. Ferguson enjoys
taking illicit drugs, including marihuana and less frequently harder drugs such
as LSD. He has recreationally used drugs since high school. Despite the
knowledge that there are mental illness trends within his family tree, which
could be suggestive of familial chemical imbalances, the plaintiff minimizes
and rationalizes away his own chemical usage for pleasure and as a sleep aid.

[152]     This was
the one area of his evidence where Mr. Ferguson appeared immature and a
dreamer rather than the image he likes to project of someone self-aware and
thoughtful and seriously focused on succeeding in an acting career. His drug
use raises red flags about his future and is of concern to his physicians and
of course to his mother. But there is insufficient evidence to take this into
account in assessing his future earning capacity.

[153]     I will say
at the same time that Mr. Ferguson came across as honest in admitting to
drug use, despite knowing the prejudicial impression this could create, albeit
I suspect he was underestimating his frequency of marihuana use.

Cost of Future Care

[154]     Some of
the medical experts made recommendations for future care for the plaintiff,
including various forms of exercise-related therapies and vocational services,
and a few items to relieve pain. Counsel for the plaintiff instructed Mr. Nilsen
to prepare a report calculating the present value of these costs, which he did,
concluding that the present value is $49,116.

[155]     The
defence submits that some of the recommendations are duplicative and that some
relate to the plaintiff’s pre-existing learning challenges. The defendant
submits that $10,000 is an appropriate total award for the cost of future care.

[156]     Dr. Pullyblank
made some recommendations to help the plaintiff manage his pain and difficulties
sleeping. He recommended psycho-therapeutic services, costing $200 per hour, for
10 to 20 sessions. I find that these services are medically justified. I accept
that the mid-range of the cost, $3,000, is reasonable. These services are
expected to be used within the next year.

[157]     Dr. Pullyblank
also recommended that Mr. Ferguson obtain the assistance of a vocational
rehabilitation firm, both now and in the future when needing assistance to find
a job when one job ends. I find these services are medically justified. The defendant
did not contest the recommendation of 20 sessions at $100 per session. While it
may be that these sessions will be spread out over time, the defence conceded
the amount of $2,000 being awarded now in relation to this cost, which I agree
is reasonable.

[158]     I agree
with the defendant that Dr. Pullyblank’s recommendation of psycho-educational
assessment and counselling are related to pre-existing matters and not to any
injury caused by the accident. I make no award for this future cost.

[159]     The
plaintiff has benefited from exercise-related therapy in the past, to treat his
accident-related injuries, and will need to continue this for the rest of his
working life in order to best manage his back pain. He could benefit from a
kinesiologist’s assistance in recommending exercises, and some occasional treatments
by a physiotherapist, as recommended by Dr. le Nobel. I find that some
of these costs are medically justified and award $4,000 as representing a
reasonable estimate of future cost.

[160]     Mr. Kyi
recommended that Mr. Ferguson maintain a gym membership. It is the case
that Mr. Ferguson used to carry a membership for a martial arts gym, but ceased
holding this membership some time before the accident. However, I find that his
injuries have precluded him from pursuing this activity in the future. I find
that incurring a standard gym membership is a cost medically justified for Mr. Ferguson,
due to his injuries. The defendant concedes that if these are the Court’s
findings, a gym membership is an appropriate cost of future care.

[161]     Mr. Nilsen
has calculated the present value of an annual gym membership, at an annual cost
of $394, to be $12,771. No issue has been taken with this estimate, which I
find reasonable.

[162]     Dr. le Nobel
recommended the plaintiff continue with over-the-counter anti‑inflammatory
and pain medication plus prescription amitriptyline. I find that the plaintiff
is likely to incur all of these costs for over-the-counter medication, and
these are medically justified. The present value of these costs as set out by Mr. Nilsen
is $15,211. I find it unlikely he will pursue the prescription medication,
based on past history.

[163]     A portable
back support, special pillow, and angled document-holder were recommended by Mr. Kyi.
The defendant agrees that the cost of purchasing these items is justified, but
submits the plaintiff has overestimated how often they will need replacing. I
agree with the defendant. I find that the plaintiff will likely only purchase
these items once, at a total cost of $330.

[164]     Adding up
the items of future care costs I have found to be medically justified, I find
that the plaintiff is entitled to a total award of $37,312 to address his costs
of future care caused by the accident.

Non-Pecuniary Damages

[165]     Counsel
for the plaintiff submits that Mr. Ferguson is entitled to non-pecuniary
damages in the range of $85,000 to $100,000.

[166]     The defendant
submits that $65,000 is an appropriate award of non-pecuniary damages.

[167]     Here the
two most important factors affecting the award of non-pecuniary damages are the
plaintiff’s young age, and the fact that what he has always wanted to do and
what gives him the most joy is acting.

[168]     The
plaintiff has a long life ahead of him where he will be suffering from pain. His
pain has affected him in intimate moments, in his attempts to work and in
acting. There are unique and special moments ahead of him in life where he may
also be affected by pain, such as in his ability to lift and play with a child.

[169]     The joy the
plaintiff gets from acting is likely to be diminished by his injuries, when
physical roles are denied to him, or he loses out on auditions because he is
seen as too stiff, a function of the way he carries himself due to his back
injury.

[170]     Nevertheless,
Mr. Ferguson has been remarkable in his attitude towards his injuries. His
positive attitude and attention to exercise have probably lessened the impact
of his injuries.

[171]     In the
circumstances of this young man’s injuries and his long future, I consider
an award of $80,000 for loss of enjoyment of life to be appropriate.

Special Damages

[172]     The
parties have agreed that Mr. Ferguson has incurred out-of-pocket costs of
$2,476.76 in relation to his injuries. These include costs of massage therapy and
physiotherapy. I award the plaintiff this amount as special damages.

CONCLUSION

[173]     I have
awarded Mr. Ferguson damages in the amount of $289,788.76 for the injuries
he sustained in a motor vehicle accident on October 23, 2009 as follows:

[174]    
Ordinarily the plaintiff would be entitled to costs. If there are
special circumstances which require a hearing to address costs, I ask the
parties to advise the court within 45 days of this judgment, and to
subsequently seek a further hearing before me to address the issue.

[175]    
The plaintiff is also entitled to pre-judgment and post-judgment interest
pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79.

[176]    
I thank counsel for their helpful written submissions.

“The Honourable Madam Justice S. Griffin”