IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160125

Docket: M130209

Registry:
Vancouver

Between:

Shawn Beardwood

Plaintiff

And

Donna Sheppard

Defendant

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

Reasons for Judgment

Introduction

[1]            
The plaintiff claims damages for injuries he suffered during a motor
vehicle accident that occurred on April 13, 2012 (“MVA”).  He was a
passenger in the back seat of a vehicle driven by his common-law partner,
Ms. Anne Butler when it was struck at an intersection by the defendant’s
vehicle.

[2]            
Liability for the MVA has been admitted by the defendant.

[3]            
The trial before me is to assess damages as claimed by the plaintiff,
including:

       i.         
non-pecuniary general damages;

      ii.         
past loss of income and opportunity to earn income;

    iii.         
future loss of earning capacity; and

    iv.         
special damages.

Background

[4]            
The plaintiff is currently 40 years of age.  He was 36 at the time of
the MVA.  He has lived with Ms. Butler, a fitness trainer, since the fall of
2011.

[5]            
The plaintiff was in good physical health and condition prior to the MVA. 
He played volleyball, skied, biked and ran with Ms. Butler several times a
week.  Their social life was good and they had fun together.  Ms. Butler
described the plaintiff as being “super happy-go-lucky”.

[6]            
The plaintiff was diagnosed with ADHD at age seven.  He failed grade two. 
Although he graduated from high school, he struggled to do so.  He has no
formal post-secondary education.

[7]            
Since 2002, the plaintiff has worked in the window glazing and
installation industry.  His work involved the fabrication and installation of
windows, shower enclosures, skylights, glass railings and flashings.  It is
physical work requiring heavy lifting, carrying, climbing and awkward bodily
positions.  Prior to the MVA the plaintiff considered that he had a high level
of proficiency and a good reputation in the industry.

[8]            
In 2009, the plaintiff sustained a lower back injury while working which
resulted in him receiving Workers Compensation Benefits of $11,450.  He was off
work for approximately six months.  He testified that his back injury did not
inhibit his ability to work thereafter, although he did have a flair-up in November 2011;
and saw a physician back specialist.  He described the pain at the time as “chronic
episodic” in nature, and said that it “occasionally can be quite severe”.  The
plaintiff sought no other treatment for his lower back injury prior to the MVA.

[9]            
During his work as a glazier, the plaintiff was laid off and received
Employment Insurance benefits from time-to-time, due to economic slowdowns.

[10]        
Until April 1, 2012, the plaintiff either worked as an employee or
contractor for glass companies owned by others.  One such company was Western
Windows Inc. owned by Rob Western. (“Western”).

[11]        
Mr. Western testified that he met the plaintiff in 2005.  He described
the plaintiff as outgoing, gregarious and someone who was liked by Western’s
clients.  Indeed, Mr. Western testified that the plaintiff was an “ambassador”
for his company.  Moreover, the plaintiff had a lot of practical knowledge
regarding window installation.  The plaintiff was paid $23 per hour by Western. 
Mr. Western agreed on cross-examination that the glazing industry can be
dependent on the economy and the weather, but he also said it can provide
steady work when there is a solid client base, as is the case for Western.

[12]        
Randy Godfrey, a journeyman glazier with whom the plaintiff has worked
over the years, described the plaintiff as having been a “strong and competent”
glazier prior to the MVA

[13]        
On April 1, 2012, less than two weeks before the MVA, the plaintiff
started his own business proprietorship named All Star Glass.  As a result of
indications he had received from his contacts in the glazing industry, the
plaintiff was confident that he would receive adequate referrals to make the
business viable.  Ms. Butler advised the plaintiff regarding some of the
clerical and marketing requirements of the new business.

[14]        
Ms. Butler was driving the vehicle in which the plaintiff was a
passenger at the time of the MVA.  She described the collision as “horrific”.  The
plaintiff described the impact as “vicious”.  Damage to both vehicles was
significant.  Each was a total loss.  The plaintiff was taken by ambulance to
the hospital where he was discharged after receiving x-rays and a neck brace.

[15]        
Within a few days of the MVA, the plaintiff’s neck, right shoulder and
back were extremely painful.  He attempted some light work involving smaller
glazing jobs but found he was unable to do the work due to his pain and
inability to concentrate.  He had shooting pains down his arms.  Several of his
fingers became numb and his hands were weak and clumsy.  His right shoulder
popped in and out of its socket on a regular basis.

[16]        
He did not keep a record of the number of paying jobs he was unable to
perform due to these injuries.

[17]        
The plaintiff attended numerous physiotherapy and massage therapy
sessions.  He also attempted fitness training, but without success due to his
pain.

[18]        
On December 10, 2012, the plaintiff was seen by a physiatrist, Dr. Travlos
who recommended the he be assessed by both a spinal surgeon and a shoulder
surgeon.

[19]        
In June 2013, the plaintiff underwent neck surgery which involved the
removal of a disc, the fusion of a vertebra and the insertion of a plate.  His
recuperation from the surgery was lengthy.  The surgery did not decrease the
plaintiff’s pain symptoms.  Ms. Butler testified that she observed some,
but not much, improvement in his condition.

[20]        
In June 2014, the plaintiff underwent surgery on his right
shoulder.  His arm was in a sling for approximately two months.  The plaintiff
testified that, although his shoulder no longer pops out of its socket, he
continues to experience severe pain in the front and back of his shoulder.  He
conceded on cross-examination that his shoulder range-of-motion is almost
normal, that he is now generally “okay” with his right shoulder, and that he
has only occasional pain, depending on how he uses it.

[21]        
In January 2015, the plaintiff underwent neck surgery for the
second time.  A second disc was removed, as was the plate that was inserted
during the first surgery.  A second vertebra was fused and a new plate was
inserted to immobilize the two fused vertebrae.  The plaintiff testified that, despite
this surgery, he continues to have significant neck pain as well as shooting
pains down both arms.  On cross-examination the plaintiff admitted that, at
times, he has relatively little, if any, pain in his neck and upper back.

[22]        
From the months that followed the MVA until the present, the plaintiff
has had to avoid much of his previous work activities and has limited himself
to smaller jobs that do not involve heavy lifting or having to look up for
extended periods of time.  He testified that he is able to perform these tasks
until his pain flares up, which typically allows him to work for half a day, two
to three times per week.  When he leaves work, he usually goes home, ices his
neck and shoulder and relaxes.

[23]        
Mr. Western testified that, after the MVA, it was clear that the
plaintiff was unable to perform the heavy, physical work of a glazier.  He
witnessed the plaintiff’s frustration of not being able to fully function on
the job.  Since the MVA, Mr. Western has employed the plaintiff, or
referred to him to do, the smaller, light duty work that needs to be done on a
glazing job.  He agreed on cross-examination that the plaintiff is good at this
work and is capable of handling it.

[24]        
Mr. Godfrey has been employed by All Star Glass during the past
year to assist the plaintiff.  He testified that the plaintiff tries very hard
on the job but struggles with the heavy lifting and is clearly in pain.  As a
result, Mr. Godfrey handles most if not all of the heavy workloads.

[25]        
On June 18, 2015, the plaintiff was assessed by Mr. Paul Pakulak,
an occupational therapist.  At the commencement of the assessment, the plaintiff
described his MVA-related symptoms as follows:

Neck and upper back:

Constant aching and tension/pressure in the neck with bouts
of more severe pain with increased activities.  The pain is worse with looking
up, repetitive movement of the head and neck and heavier lifting and carrying. 
The pain will radiate into the upper back.  He rated his pain at the time of
this clinical interview (current pain) at 0.5/10…  He also indicated that his
highest and lowest levels of pain in the last 30 days were 6/10 and 0.5/10
respectively.

Right shoulder pain:

Daily intermittent aching and sharp pain in the right
shoulder.  The pain is worse with repetitive or forceful use of the right arm
and heavier lifting and carrying or lifting overhead.  He rated his pain at the
time of this clinical interview (current pain) at 1/10 …He also indicated that
his highest and lowest levels of pain in the last 30 days were 6/10 and 0/10
respectively.

Arm pain:

Constant pain with intermittent shooting pain in both arms
with reduced sensitivity and tingling in the 4^th and 5^th
digits of both hands.  He also described hypersensitivity to light touch and
sometimes to pressure.  These symptoms are worse when the neck pain and upper
back muscle tension/pain is more flared up.  He has also noticed that his hands
are weaker at times.  He rated his pain at the time of this clinical interview
(current pain) at 2/10 …He also indicated that his highest and lowest levels of
pain in the last 30 days were 6/10 and 2/10 respectively.

Low back pain:

Intermittent but almost constant
aching and sharp pain in both sides of the low back.  The pain is worse with
bending, sitting while leaning forward and heavier lifting and carrying
(especially from the floor).  He rated his pain at the time of this clinical
interview (current pain) at 0.5/10 …He also indicated that his highest and
lowest levels of pain in the last 30 days were 7/10 and 0/10 respectively.

[26]        
The plaintiff reported to Mr. Pakulak that his capacity to sit,
stand, walk and reach out were “slightly restricted” due to pain; his ability
to reach overhead, bend, stoop and crouch were “moderately restricted” due to
pain; his ability to climb, grip, pinch and handle were unrestricted; and his
ability to lift was limited to 40-50 pounds due to pain.

[27]        
On July 9, 2015, the plaintiff was assessed by Dr. Arno Smit,
an orthopaedic surgeon.  The plaintiff advised Dr. Smit that he “still had
neck pain with strenuous activity or with prolonged looking upward, as required
for his work as a glazier”, that “his right shoulder was generally functioning
quite well, but he still had discomfort with overhead activity or reaching” and
that “his most troubling symptoms pertained to tenderness, even with light
touch, and generally altered sensation over the ulnar aspect of the forearms
and hands, equally severe on the right and left.”

[28]        
The plaintiff testified that the injuries he suffered in the MVA have
left him emotionally frustrated, devastated and depressed.  He is no longer the
“happy-go-lucky” person he was before the MVA.  He has difficulty coping.  He
is taking anti-depressants and numerous pain medications, all of which have
been prescribed by his family physician, Dr. Maureen Conly.  These
medications make him tired and he has little sex drive.  His physical
activities are limited to going on walks.  He has gained 35 pounds since the
MVA.

[29]        
The plaintiff is prepared to participate in the various programs which
have been recommended by his physician, including a chronic pain program,
individual and couples psychotherapy, and exercise programs with a trainer.  He
testified that he has increased his cardiovascular exercise and has increased
his housework activities.

[30]        
Although his relationship with Ms. Butler continues to be a loving
one, it has been taxed by the plaintiff’s ongoing complaints of pain and
inability to function.

[31]        
The foregoing was confirmed by Ms. Butler who testified that the
plaintiff was, and remains, in obvious pain.  She testified that his demeanour
has changed and he is no longer the happy-go-lucky person he was before the
MVA.  He takes a lot of medication which affects his mood.  She described him
as being depressed and as having little motivation or enthusiasm.  He is moody
and emotionally unpredictable, which was never the case prior to the MVA.  The
plaintiff is not a good sleeper.  They do not laugh as much as they used to and
do little if any socializing.  Ms. Butler testified that they no longer
have sex.

[32]        
The plaintiff testified that he has come to realize he will likely have
to leave the glazing industry and find work that does not involve heavy lifting. 
He agreed on cross-examination that he is good at adapting to new work
challenges and learning on the job.  Vocational testing indicated that he would
be qualified for work in retail sales or as a cashier, security guard or in
service support.  None of those occupations are of interest to him.

[33]        
According to the plaintiff’s income tax returns, his income pre-MVA and
post-MVA (employment and net business income as a contractor) was as follows:

[34]        
The plaintiff’s gross business income in 2015 was $75,731 but he was
unable to provide the court with figures for his net income.

PLAINTIFF’S Medical Experts

Dr. Maureen Conly

[35]        
Dr. Conly has been the plaintiff’s family physician since November 2011. 
She was qualified without challenge as an expert in family medicine, including
psycho-social difficulties.

[36]        
Dr. Conly testified that the plaintiff appears to have aged 20
years since she first met him and is not the person now that he was in 2011. 
He initially presented as a youthful, fit and healthy man, albeit with
intermittent low back pain.  However, since the MVA, the plaintiff is in
obvious pain, is discouraged, is easily overwhelmed and is in a vulnerable
emotional state.

[37]        
In Dr. Conly’s opinion, the plaintiff is severely depressed and
struggles on a daily basis.  She attributes all of the plaintiff’s emotional
and psycho-social problems, including his depression, to the MVA.

[38]        
Dr. Conly recommends the following on an ongoing basis:

a)    psychological
support and anti-depressant and neuropathic pain medication such as Lyrica, Cymbalta,
and a tricyclic anti-depressant (nortryptiline or amytriptiline), likely for
his lifetime;

b)    a program at a
chronic pain clinic;

c)     individual
and couples psychotherapy, once per month;

d)    a regular
exercise program with a trainer for approximately two years, depending upon the
plaintiff’s ability to cope.

Dr. Andrew Travlos

[39]        
Dr. Travlos is a physiatrist who specializes in physical medicine
and rehabilitation.  This specialty entails the assessment, diagnosis and
treatment of musculoskeletal problems including those related to the neck,
back, spine and shoulders.

[40]        
Dr. Travlos examined the plaintiff on December 10, 2012 and
again on August 19, 2015 at the request of the plaintiff’s counsel.  He
prepared two expert opinion reports relating to his examinations, dated December 10,
2012 and August 19, 2015, respectively.  His expertise and expert reports
were admitted without challenge.

[41]        
After examining the plaintiff on December 10, 2012, Dr. Travlos
recommended that the plaintiff be seen by a spinal surgeon for a consultation regarding
swelling in the plaintiff’s spinal cord.  He also found that the plaintiff’s
right shoulder was “grossly abnormal” and recommended that the plaintiff have
surgical intervention to treat the impingement and labral tears in his shoulder. 
Dr. Travlos further opined that, from a psychosocial perspective, the
plaintiff had significant mental health issues, likely from the pain and
functional challenges he has faced since the MVA.

[42]        
Dr. Travlos’ August 19, 2015 examination revealed that,
although the plaintiff had increased range of motion in his neck due to the
surgeries, it was still limited and painful.  Dr. Travlos opined that,
from a clinical perspective, the plaintiff’s shoulder surgery was successful
and that he now has near normal range of motion in that area, albeit with some
pain.  He opined that, the plaintiff should have further physiotherapy for his
shoulder and that with this treatment and a structured exercise and
strengthening program, his right shoulder strength and function will likely undergo
further improvement.

[43]        
After his examination of the plaintiff on August 19, 2015, and
after having had an opportunity to examine the plaintiff’s medical records, Dr. Travlos
opined that the plaintiff had moderate degenerative disease in his cervical
spine that pre-dated the MVA, but was more problematic than would be expected in
a person of the plaintiff’s age.  The plaintiff also had large disc-osteophyte
complexes in his neck at C3-4 and C6-7 that pre-dated the MVA.  Dr. Travlos
opined however, that despite the plaintiff being prone to problems with his
neck, his condition was asymptomatic at the time of the MVA and may never have
required surgery.  It is Dr. Travlos’ opinion that the MVA injured these
areas and triggered the presence and persistence of the plaintiff’s pain
symptoms.  In Dr. Travlos’ opinion, the MVA resulted in the plaintiff
developing his symptoms between 8 and 15 years earlier than he would have, had
the accident not occurred.

[44]        
Dr. Travlos opined that the plaintiff’s lower back pain is due to a
condition that pre-dated the MVA, but that it was likely exacerbated by
inactivity resulting from his MVA-related injuries, which led to deconditioning
and weight gain.  Dr. Travlos opined that the plaintiff needs to lose at
least 40 pounds.  He encourages the plaintiff to do more chores and activities
around his home.

[45]        
It is Dr. Travlos’ opinion that the plaintiff remains moderately to
severely depressed as a result of the MVA and that his mental health issues are
significantly compounding his recovery.  Dr. Travlos is optimistic that
the plaintiff’s mood and level of activity will improve during the course of
the next 18 months, provided that he receives support as he increases his
physical activities and mobilization.  The degree of improvement and future recovery
will decrease over time.  Dr. Travlos opined that the plaintiff should not
return to activities such as running, skiing and other activities that have a
risk of impact on the spine.

[46]        
Dr. Travlos opines that the plaintiff will not be able to return to
work as a glazier because it will aggravate the plaintiff’s current symptoms,
as will any job requiring him to lift, carry or perform significant
overhead-type or repetitive neck movements.  Based on his current prognosis,
Dr. Travlos opined that the plaintiff is not ready for full-time work, but that
it is reasonable to expect that the plaintiff will be able to function in a
full-time sedentary work capacity in the next eight months, but not until his
mental health is much better.  He retracted somewhat from this opinion during
his evidence at trial, opining that more likely, the plaintiff will be limited
to part-time work.

Dr. Arno Smit

[47]        
Dr. Smit is an orthopaedic surgeon with expertise in the assessment
and treatment of musculoskeletal injury.  He was qualified without challenge as
an expert on the diagnosis, cause and prognosis of injuries to the neck and
spine.

[48]        
Dr. Smit examined the plaintiff on July 9, 2015.  The
plaintiff advised Dr. Smit that his right shoulder was generally
functioning well, but that he had neck pain with strenuous activity or with
prolonged looking upward.  He also complained of tenderness and altered
sensation over the ulnar aspect of the forearms and hands, which was equally
severe on both the right and left sides.

[49]        
Dr. Smit elaborated on the surgeries that the plaintiff underwent
after the MVA.  The first neck surgery involved the removal of bone to create
more space for the nerves as well as the fusion of C6-C7 vertebrae in order to
provide stabilization.  The plaintiff had good initial response from that
surgery in terms of pain but the response was not sustained.  The radicular
pain and numbness in both forearms and fingers returned.  The second surgery
was similar to the first but was more extensive.  The plate installed during
the first was removed and a larger plate was installed to fuse the plaintiff’s
C6-7 and T-1 vertebrae.  There was no improvement after the second surgery. 
The injury sustained by the plaintiff to his right shoulder turned out to be
more extensive than had been indicated on his MRI.  Soft tissue had been ripped
from the bone.  The surgery restored most of the plaintiff’s range of motion,
however overhead motion continues to be limited and will likely remain problematic
for the plaintiff.

[50]        
Dr. Smit agrees that the plaintiff’s congenitally narrow spinal
canal and other cervical spine pathology, as identified by Dr. Travlos,
pre-dated the MVA and was evidentiary of a progressive degenerative process that
would take place over many years, if not decades, becoming more severe over
time.  However, he opined that because the plaintiff remained asymptomatic
until the MVA, his condition was likely relatively stable and, in the absence
of the MVA, any progression would have been sufficiently slow to allow
adaptation of the tissues involved.

[51]        
Dr. Smit opined that the MVA resulted in sudden compressive forces
being applied that further injured the plaintiff’s spinal cord and disrupted
the plaintiff’s arthritic symptoms.  Had the MVA not occurred, the plaintiff
would likely have remained free of neck pain and other symptoms, such as
radiating forearm and finger numbness, until his mid to late 40s, at which time
there would have been a slow onset of pain symptoms, with progression to severe
and disabling neck pain over a further 5-10 year period from when pain symptoms
became firmly established.  In other words, but for the MVA, the plaintiff
would not have experienced severe disabling neck pain until his early to mid-50s. 
The early and sudden onset of his neck pain symptoms was the result of the MVA,
which profoundly and irreversibly altered the congenital degenerative progression
of the spinal stenosis process.  Moreover, it is possible, although unlikely
that absent the MVA the plaintiff would have been able to function without
developing the symptoms that resulted in his neck surgeries.  However, it is
more likely than not that the plaintiff would eventually have needed to undergo
neck surgery.

[52]        
Dr. Smit opined that the plaintiff’s neck pain will probably continue
and that there is a high likelihood of the further progression of degenerative
changes which may require further risky surgery.

[53]        
It is Dr. Smit’s opinion that, although the plaintiff’s
degenerative condition made him vulnerable to spinal cord injury, the
hypersensitivity and numbness/tingling he is experiencing over the ulnar aspect
of both forearms and hands are a direct result of the MVA and that the
condition is likely to persist indefinitely.  He also opined that the rate of
progression of the plaintiff’s spinal stenosis, both centrally and at the level
of the neural foramina is increased as a result of the MVA, over the
pre-accident baseline rate of progression.  Ongoing exercise and strengthening
will be necessary to manage these symptoms.

[54]        
Although the range of motion in the plaintiff’s right shoulder has
returned to near normal, it is Dr. Smit’s opinion that the plaintiff is at
a low to moderate risk of developing significant osteoarthritis in his right
shoulder over the next 10-15 years, as a result of the MVA.

[55]        
Dr. Smith also opined that, as a result of the MVA, the plaintiff
has an increased risk of developing osteoarthritis.

[56]        
It is Dr. Smit’s opinion that the plaintiff’s lower back pain is due
to his pre-existing back condition, together with his reduced activity and 
deconditioning as a result of his MVA-related injuries.  A diligent and
structured conditioning regime will likely restore him to his pre-MVA state.

Functional Capacity Evaluations and Vocational Assessments

Plaintiff’s case

Paul Pakulak

[57]        
Mr. Pakulak is a kinesiologist and an occupational therapist who
gave evidence as part of the plaintiff’s case.  He was qualified as an expert
in respect of the plaintiff’s functional capacity as well as the cost of the
plaintiff’s future care and medications.

[58]        
Mr. Pakulak conducted a seven hour evaluation of the plaintiff’s
capacity to perform and sustain various workplace and other activities.  The
assessment took place on June 18, 2015.  He used standard protocol tests
and work simulations.  He compared the plaintiff’s results to peer reviewed and
scrutinized normative standards published in the National Occupational
Classification and the Dictionary of Occupational Titles.

[59]        
Throughout testing, the plaintiff provided a high level of physical
effort.  In Mr. Pakulak’s opinion, the results of his testing were an
accurate representation of the plaintiff’s physical and functional abilities
and limitations.  Moreover, Mr. Pakulak was of the opinion that the
plaintiff’s reports of his symptoms were reliable and consistent with his
performance during the evaluation.  The plaintiff neither overrated, nor
underrated his symptoms or their impact on his ability to perform the tasks
requested of him.  The plaintiff demonstrated significant increases in pain
levels during the course of the evaluation as well as a reduction in both speed
and capacity.

[60]        
In Mr. Pakulak’s opinion, the plaintiff has body positional
limitations for prolonged and repetitive below waist level work, repetitive and
prolonged overhead work, repetitive and prolonged reaching in front of the
body, prolonged neck positioning, prolonged sitting, prolonged standing and
fast paced walking.  Such positions and activities should be avoided where
possible.  These limitations are inconsistent with the work demands of a
glazier.

[61]        
It is Mr. Pakulak’s opinion that the plaintiff’s functional
limitations are such that his overall capacity to compete for work in an open
job market has been reduced.  He will have difficulty maintaining a competitive
work pace in most traditional job settings and will require an understanding
employer who is willing to provide accommodations for his limitations.  He has
the physical capacity to work on a part-time basis only.

[62]        
Mr. Pakulak did not assess the plaintiff’s ability to perform any
specific occupation.

[63]        
Mr. Pakulak opined that the plaintiff demonstrated the capacity to
complete most aspects of normal household tasks in his current home.

John Lawless

[64]        
Mr. Lawless is a vocational consultant who was qualified to provide
opinion evidence regarding the plaintiff’s post-MVA ability to access the
workforce.  He was called as part of the plaintiff’s case.

[65]        
Mr. Lawless interviewed and administered a battery of vocational
tests to the plaintiff on August 4, 2015.  His assessment of the plaintiff
was not as exhaustive as Mr. Lawless would have liked because the
plaintiff was hung over and distracted.  His godfather (to whom he was very
close) had died the previous day and the plaintiff had engaged in a bout of
drinking upon hearing the news.

[66]        
Despite this less-than-perfect situation, Mr. Lawless was satisfied
that his assessment provided good insight into the plaintiff’s circumstances
and vocational alternatives.

[67]        
Based upon the medical reports of Drs. Travlos and Smit, as well as the
opinion of Mr. Pakulak, it is Mr. Lawless’ opinion that the plaintiff
is no longer suited to be a self-employed glazier.  He opined that retraining
is an unlikely option.  Rather, his modest academic skills and compromised
physical abilities are such that his vocational options are limited to a narrow
range of sedentary work where the wages are normally minimum and the jobs
involve irregular shifts and have a high risk of underemployment and seasonal
unemployment.  Mr. Lawless provided the following possible occupations as
examples:

[68]        
Mr. Lawless is of the opinion that it will be prudent for the
plaintiff to have the benefit of job placement assistance, the cost of which is
approximately $4,000 per placement.

Defendant’s case

Diana Cameron

[69]        
Ms. Cameron is a vocational rehabilitation consultant who gave
evidence as part of the defendant’s case.  Her rebuttal of Mr. Lawless’
report is dated November 20, 2015.  She was not given an opportunity to
meet the plaintiff or do an assessment of him.  She would have preferred to
have done so.  As a result, her opinions are based solely on the expert reports
of Messrs. Lawless and Pakulak, Drs. Travlos and Smit, as well as on the
plaintiff’s income tax returns for the years 2008 to 2013, inclusive, as well
as on her own labour market research.  Her expertise was not challenged by the
plaintiff.

[70]        
Ms. Cameron opined that, had the MVA not occurred, the plaintiff’s
lack of journeyman certification casts doubt on whether he would have been able
to successfully transition to a less physically-demanding job when his cervical
degeneration became symptomatic.  On the basis that the plaintiff had not taken
steps to challenge the journeyman glazier examination prior to the MVA, despite
having been in the glazing industry for 10 years, Ms. Cameron opines that
it is unlikely he ever would have done so or, if he had, that he would have
passed the exam.

[71]        
She opined that the plaintiff’s pain and depression will not necessarily
preclude him from being re-trained in an occupation that requires only limited
strength.  Although she agreed that the plaintiff is currently only physically
and mentally capable of part-time work, she is of the opinion that he has the
potential to progress to full-time work.  However, she did not provide any
foundation for that opinion.

[72]        
Ms. Cameron opined that a two-week full-time Construction Safety
Officer training program, as well as a 24-credit part-time Construction
Operations associate certificate program are options for the plaintiff, as is
operating a gas station, working as a dispatcher, transportation crew
scheduler, wholesale sales representative (non-technical), order picker,
courier driver, local truck driver or collector.  She agrees with Mr. Lawless
that, if the plaintiff’s depression is treated, various positions in retail
sales, such as a security guard/night-watchman, parking lot attendant, ticket-taker
and recreation facility attendant may well be open to him, but she disagrees
with Mr. Lawless that they would provide little durability or job
stability.  Rather, she opines that these occupations have “average” job
stability.  She disagrees that the plaintiff has a risk of underemployment or
unemployment provided he seeks an occupation that is compatible with his
symptoms, limitations and residual abilities.

[73]        
Ms. Cameron agrees that the plaintiff should have the benefit of
job placement assistance but opines that there should only be need for one
placement.

Analysis

Causation

[74]        
The “but for” test is the general test for factual causation: the
plaintiff must prove on a balance of probabilities that but for the defendant’s
negligence, he would not have suffered his injuries.  The defendant’s
negligence must have been a necessary cause of the injury.  This test was
recently summarized and affirmed by the Supreme Court of Canada in Clements
v. Clements, 2012 SCC 32 at paras. 8 – 10 (see also Ediger v. Johnston,
2013 SCC 18 at paras. 28 – 29).

[75]        
The classic statement of the law of causation by Mr. Justice
Sopinka in Snell v. Farrell, [1990] 2 S.C.R. 311 at para. 29, is
that causation need not be determined by scientific precision.  It is a
practical question of fact that can be answered by ordinary common sense.

[76]        
Once factual causation is found, liability may still be limited in the
assessment of damages: Blackwater v. Plint, 2005 SCC 58 at paras.
78 – 81.  I note the well-established principle of tort law that the
defendant need not place the plaintiff in a better position than his original position
and should not compensate the plaintiff for damage he would have suffered in
any event, otherwise known as the crumbling skull rule, which was set out by
the Supreme Court in Athey v. Leonati, [1996] 3 S.C.R. 458 at paras.
34-35, as follows:

It is named after the well-known “thin skull” rule, which
makes the tortfeasor liable for the plaintiff’s injuries even if the injuries
are unexpectedly severe owing to a pre-existing condition.  The tortfeasor must
take his or her victim as the tortfeasor finds the victim, and is therefore
liable even though the plaintiff’s losses are more dramatic than they would be
for the average person.

The so-called “crumbling skull”
rule simply recognizes that the pre-existing condition was inherent in the
plaintiff’s “original position”.  The defendant need not put the plaintiff in a
position better than his or her original position. The defendant is liable for
the injuries caused, even if they are extreme, but need not compensate the
plaintiff for any debilitating effects of the pre-existing condition which the
plaintiff would have experienced anyway.

[77]        
Each of the plaintiff’s medical experts was an impressive witness.  Each
provided his or her evidence in a candid, objective and straightforward manner.
I have no difficulty accepting their respective opinions.  No medical
experts were called by the defendant.

[78]        
It is clear on the evidence of Drs. Tavlos and Smit that prior to the
MVA the plaintiff had a moderate pre-existing degenerative condition in his
neck at C3-4, C5-6 and C6-7, including central canal stenosis at C3-4 and C6-7,
much greater than expected for a person the plaintiff’s age.  He also had
abnormal disc herniation at C3-4 and C6-7 that predated the MVA.  However,
these conditions were asymptomatic at the time of the MVA.  The MVA triggered
the presence and subsequent persistence of the plaintiff’s pain symptoms,
although it is probable that, even in the absence of the MVA, the plaintiff
would have developed neurologic problems with his neck at some time in the future,
likely within 8 to 15 years.

[79]        
The measurable risk of the debilitating effect in the future of the
plaintiff’s pre-existing condition must be reflected in both his non-pecuniary
damages and loss of income awards:  McArthur v. Hudson, 2012 BCSC 1293
at para. 12.  The measurable risk must be given weight according to the
probability of its occurrence: Athey, at para. 35; McArthur,
para. 13.

[80]        
Counsel for the defendants does not dispute that the plaintiff was
injured in the MVA and that the reports of Drs. Conly, Travlos and Smit
accurately set out his MVA-related injuries.  He agrees that the MVA caused the
plaintiff’s neck and shoulder symptoms and that the three surgeries were
required.  Moreover, he does not dispute that the MVA aggravated the plaintiff’s
previously intermittent low back symptoms.  The defendant does not suggest that
the plaintiff has failed to seek and obtain appropriate treatment for his
injuries.  However, he submits that the plaintiff had a tendency to downplay
the extent of recovery from his injuries.

[81]        
I found the plaintiff to be an honest and forthright witness who did his
best to convey to the court, without elaboration, the extent of his pain and
suffering.  I decline to accept the defendant’s submission that he has
recovered more than he lets on.

[82]        
I find that, notwithstanding the congenital degenerative process taking
place in the plaintiff’s cervical spine prior to the MVA, the early and sudden
onset of his neck pain symptoms was caused by the MVA, which profoundly and irreversibly
altered the congenital degenerative process, including progression of the plaintiff’s
stenosis.  The plaintiff has had acute and relentless pain in his neck ever
since the MVA.

[83]        
As a result of the MVA, the plaintiff required two neck surgeries to
decompress, immobilize and treat the neck pain and the neurologic symptoms to
the plaintiff’s upper extremities.  The plaintiff continues to have chronic
radicular pain in his neck.

[84]        
I also find that the plaintiff’s hypersensitivity and numbness/tingling
over the ulnar aspect of both forearms and hands are a direct result of the MVA
and that the condition is likely to persist indefinitely.

[85]        
I also find that the plaintiff suffered a right shoulder labral tear as
a result of the MVA, which required surgery.  The surgery resulted in near
normal range of motion albeit with some pain.  His remaining shoulder symptoms
will improve with physiotherapy and a structured exercise and strengthening
program, however there remains a low to moderate risk of the plaintiff developing
significant osteoarthritis in his right shoulder over the next 10-15 years as a
result of the MVA.

[86]        
I find on the basis of the medical evidence that the plaintiff’s low
back problem pre-existed the MVA and was not caused by it.  However, I find
that the MVA exacerbated the plaintiff’s low back pain.

Non-Pecuniary Damages

[87]        
In Stapley v. Hejslet, 2006 BCCA 34, leave to appeal ref’d [2006]
SCCA No. 100, Madam Justice Kirkpatrick outlined the factors to be considered
in awarding non-pecuniary damages at para. 46:

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

(a)   age
of the plaintiff;

(b)   nature
of the injury;

(c)   severity
and duration of pain;

(d)   disability;

(e)   emotional
suffering; and

(f)     loss or impairment of life;

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

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

(h)   impairment
of physical and mental abilities;

(i)     loss of lifestyle; and

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

[88]        
The plaintiff is 40 years old.  The nature of his injuries caused by the
MVA is described above.  The severity and duration of the pain the plaintiff
has suffered as a result are also set out above.  He underwent three
significant and lengthy surgeries.  His convalescence from the surgeries was
prolonged.  He went from a happy, forward-thinking person with a reasonable
potential to succeed with his own glazing business, to an emotionally
devastated and pain-ridden individual who finds it very difficult to function
on a daily basis.  The plaintiff is frustrated by his inability to function as
he did prior to the MVA.  He has become severely depressed and now suffers as
well from sexual dysfunction, stress and relationship distress.  He is
struggling with pain from his injuries and is managing his daily life poorly. 
He is no longer the “happy-go-lucky” person he was before the MVA.  His
lifestyle has been negatively affected.

[89]        
In addition, the plaintiff’s tolerance for and ability to lift, climb
and engage in repetitive movement involving his arms and shoulders is limited. 
He continues to avoid work and other activities that involve those types of
movements.  It is possible that his pain and restriction of activities will
increase in the future.

Non-pecuniary Damages

[90]        
Counsel for the plaintiff submits that non-pecuniary damages in the
amount of $200,000 would be appropriate. He relies on the following decisions
which involve circumstances similar to those in this case:

       i.         
Sirak v. Noonward, 2015 BCSC 274 ($160,000);

      ii.         
Adamson v. Charity, 2007 BCSC 671 ($200,000); and

    iii.         
Felix v. Hearne, 2011 BCSC 1236 ($200,000).

[91]        
In Sirak, the plaintiff was 45 years old at the time of the accident,
and 55 years old at the time of trial.  He worked long hours primarily as a
painting contractor, a physically demanding career.  As a result of the
accident, Mr. Sirak suffered from both cervical and lumbar herniated
discs, persisting soft tissue injuries, and severe, disabling and progressively
worsening pain and neurological symptoms that were found unlikely to improve. 
He suffered from ongoing headaches, numbness and tingling in his hands and
legs, and back and neck pain.  There was evidence of pre-existing degenerative
spondylosis in the plaintiff’s spine, however, there was no evidence that it
was symptomatic or would become that way.

[92]        
The court found that as a result of his injuries, the plaintiff’s
personality was affected, he gained weight, he was no longer able to partake in
the recreational activities he once enjoyed, and he became socially withdrawn. 
In addition, he was no longer able to work as a painter, or in any physical
job.  He was also faced with limited options finding more sedentary work
because of his limited formal education and functionality.  The court held that
he would almost certainly be left with permanent, chronic and disabling neck
and back pain and thus awarded him $160,000.

[93]        
In Adamson, a collision forced the plaintiff’s truck across an
intersection, causing it to strike a curb before coming to rest on the
passenger side door.  The plaintiff was 42 at the time of the accident, and 48
at the time of trial.  The court found he suffered from a mild traumatic brain
injury and chronic pain syndrome as a result of injuries to his upper neck and
shoulder, severe headaches, major depressive disorder of moderate severity, and
exacerbation of his pre-existing hearing loss.

[94]        
The plaintiff was not strong academically and did not complete high
school, but was a skilled tradesman.  He did not have his journeyman papers,
but he earned a living as a skilled general carpenter and by co-managing the
family’s rental properties.  The plaintiff went back to work part time
following the accident, but his injuries made it difficult to complete tasks. 
Eventually the plaintiff began losing consciousness and falling without warning
and he was ordered to stop work in 2003; the court held that he will remain
competitively unemployable for the rest of his life as a result of his injuries
and functional limitations.  The court acknowledged that while the plaintiff
was not totally incapacitated, he was permanently disabled in a way that would
affect him for the remainder of his life in terms of recreation, enjoyment of
life, and employability; he was awarded $200,000.

[95]        
In Felix, the plaintiff was injured in a vehicle roll-over caused
by her boyfriend who grabbed the wheel and caused the car to overturn; he was
killed in the accident.  She was 44 at the time of the collision, and self-employed
as a verbatim reporter.  As a result of the accident the court found that she
suffered from injury to her left shoulder, wrist and ankle, persistent pain in
her neck and back which limited her ability to sit for extended periods of time,
as well as PTSD and depression resulting from the accident, which significantly
affected her vocation, family life and social activities.

[96]        
Before the accident the plaintiff was the strongest unit in the family,
and provided her daughters monetary and emotional support, she took pride in
having trained for her career and in owning her own home.  After the accident
she was unable to work and was forced to live off of disability benefits and by
re-mortgaging her home, she became withdrawn and at times suicidal.  She ended
a relationship due to depression, began to abuse alcohol for a time, no longer
participated in recreational activities in the same way or at all, and was
limited in her ability to perform housework.  The court held there was only a
modest hope of improvement and awarded $200,000 due to the pervasive emotional
disorder and continuing physical injuries and their impact on her vocational
and personal life.

[97]        
Counsel for the defendant submits that non-pecuniary damages of $150,000
are appropriate in this case, less a deduction of 33% for the plaintiff’s pre-existing
condition, for a total award of $100,500.  He relies on the following
decisions:

i.       Sanders
v. Janze, 2009 BCSC 1059 ($150,000);

ii.      Cebula
v. Smith, 2013 BCSC 1939 ($150,000); and

iii.    Ghani v.
Umran, 2008 BCSC 585 ($100,000)

[98]        
In Sanders, the plaintiff, who was 49 at the time of trial, was
rear ended waiting to turn left in an intersection.  Prior to this accident,
she had been in multiple motor vehicle accidents, and experienced existing
problems with degenerative changes in her spine that had required surgery in
the past.  At the time of this accident, she was recovering from injuries from
a prior accident.

[99]        
After this accident the plaintiff suffered from neck and back pain, had
four operations and had not returned to work.  She was no longer able to help
in renovations of her townhome, or perform more than light household cleaning. 
The court held that she suffered from daily pain in her back, neck and
shoulders, with pain radiating to her arms and hands, and that she had trouble
walking or sitting for long periods.  The court held that she would remain
partially disabled as a result of her back condition, including daily pain and
mobility restrictions.  As the court found that the accident caused her
injuries and current condition she was awarded $150,000.  However, the court
also found that due to the pre-existing condition in her spine, there was
measurable risk that the plaintiff would have developed serious problems absent
the accident and this necessitated a reduction in the damages award by 40%.

[100]     In Cebula,
the plaintiff, who was 48 at the time of trial, was involved in a car
accident.  At the time she was working as an elementary school teacher, and she
was enrolled in a program that would have led to an increase in her pay scale. 
Prior to the accident the plaintiff was also very active, and involved with
family and community.

[101]     In the
accident, the plaintiff sustained a broken neck, and a broken ankle, both of
which required surgery.  After the accident she began to suffer from neck and
back pain, headaches, ankle pain, knee pain, a sore shoulder, tingling down her
arm, muffled hearing, hip pain (from the bone graft needed for her neck
surgery), vertigo, difficulty eating without choking on her food, difficulty
sleeping and she withdrew socially, began snapping at her children and experienced
a significant change in her emotional state.  She was only able to return to
work one day per week and no longer planned to complete the course she enrolled
in because of the difficulty she experienced working even her part time hours. The
court accepted the medical evidence that the plaintiff’s recovery had
plateaued, that her social relationships had been impaired, and that she would
likely have functional and psychological limitations for the rest of her life
and awarded her $150,000.

[102]     In Ghani,
the plaintiff was 46 at the time of trial, and had been involved in three
accidents within a one year period. He was a machine operator for CP Rail at
the time of the first accident, and was an auto mechanic at the time of the
third accident.  Prior to the third accident, he suffered from chronic low back
pain which was said to be improving, and significant spondylosis or
degenerative arthritis.

[103]     After the
third accident he was off work for six months.  When he returned to work, he
found the work too physically demanding for his injuries.  He bought a shop
thinking it would be manageable with his injuries, but had to sell it within a
year because of persisting headaches, neck and back pain.  He attempted to
teach an automotive course at a high school, but had no qualifications, found
it stressful and ultimately left and was unemployed since.  The court found
that he suffered soft tissue injuries and low back pain as a result of the
first accident but that they had almost recovered by the time of the third
accident.  He was awarded $30,000 for non-pecuniary damages for the first
accident.  The court found that the third accident resulted in some increase in
back pain, and significant neck pain that was likely to get worse with age and that
affected his career and ability to partake in recreational activities.  The
court awarded him $70,000 for the third accident, but reduced the award by 25%
to account for the pre-existing spondylosis.

[104]     I agree
with defendant’s counsel that the plaintiff’s underlying pre-existing
degenerative condition was such that there was a measurable risk of injury to his
neck regardless of the MVA.  Moreover, it is likely that he would have
developed neurological problems in his neck at some time in the future which
would likely have become significantly limiting within 8 to 15 years and
eventually have required medical treatment and medications similar to those he
required after the MVA.

[105]     Each case
depends on its own particular facts and circumstances.  After considering all
of the evidence, the submissions of counsel and the case authorities, I find
that an appropriate award for non-pecuniary damages in this case is $200,000. 
However, that amount must be reduced by 40% to reflect the measurable risk that
the plaintiff’s pre-existing degenerative spinal condition would likely have
detrimentally affected him in the future.

[106]     The
plaintiff is entitled to an award of $120,000 for non-pecuniary damages.

Past loss of Income and Opportunity to earn Income Claim

[107]     Compensation
for past loss of income is actually a claim for loss of earning capacity and is
based on the value of the work that  the plaintiff would have, not could have,
earned, but for the injury: Rowe v. Bobell Express Ltd., 2005 BCCA 141
at para. 30; M.B. v. British Columbia, 2003 SCC 53 at para. 49. 
An assessment of loss of past income earning capacity requires that the
plaintiff demonstrate a real and substantial possibility that the income would
have been earned: Athey, at para. 27; Morlan v. Barrett,
2012 BCCA 66 at para. 38.

[108]     Counsel
for the plaintiff submits it is reasonable that, but for the MVA, the plaintiff
would have earned at least an additional $25,000 per year in the period 2012 to
2015 inclusive.

[109]     Counsel
for the defendant submits that the plaintiff has failed to demonstrate on the
balance of probabilities that he has suffered any past income loss or loss of
opportunity to earn income.  He  argues that there is no evidence as to how
much of the plaintiff’s reported business loss in 2013 was due to start-up
costs for his new business and points out that the plaintiff did not keep
records of the work he lost after the MVA.  In the alternative, the defendant
argues that the plaintiff’s average pre-MVA earnings of $25,528 per year are
indicative of what he would have earned had the MVA not occurred.  Therefore,
he would have earned a total of $102,112 during the years 2012 to 2015,
inclusive.  He actually earned $24,468 during that period, resulting in a loss
of $77,644.

[110]     In my
view, the plaintiff’s average pre-MVA earnings are not indicative of what he
would have earned during the period 2012 to 2015, inclusive, had the MVA not
occurred.  I find that the plaintiff’s pre-MVA  earnings were disrupted by
events that resulted in his income being less than would otherwise have been
the case.  He lost his driver’s licence from 2006 to mid-2012 for driving while
intoxicated.  Mr. Western testified that, as a result, he was paid less
than he would have been paid had he had a licence.  In addition, one of the
plaintiff’s employers went bankrupt.  As well, the plaintiff sustained a low
back injury that resulted in him being off work in 2009 for at least six
months.  He was also laid off from time-to-time due to a slowdown in the
glazing industry.  Throughout, the plaintiff demonstrated a consistent desire
and ability to find work.  He was motivated and physically and mentally fit for
the job.  Less than two weeks before the MVA, he started his own company.  He
led evidence that, as a result of the MVA, he was unable to do anything other
than light work and had to turn down other work in its entirety because of his
injuries.

[111]     I find
that there is a real and substantial possibility that, but for the MVA, the
plaintiff would have earned substantially more than his pre-MVA average
earnings.

[112]     I assess
the plaintiff’s past loss of income and opportunity to earn income at $25,000
per year for the four year period of 2012 to 2015, inclusive, for a total gross
income loss of $100,000.

[113]     However, because
the plaintiff was self-employed, his gross income must be reduced by the
appropriate amount of income tax and Employment Insurance premiums that he
would have had to pay.  The plaintiff filed the expert report of Mr. Curtis
Peever, an economist, which provides opinion evidence on the Laxdal calculations
that can be used in this regard (at p. 34 of his report).  Because the
plaintiff’s actual “with MVA” income figures are net of income tax, for
simplicity I have chosen to reduce his award only by the amount of income
tax/Employment Insurance he would have paid on the additional $25,000 per year,
which according to Mr. Peever’s tables is approximately 8.8% per year.

[114]     Accordingly,
the plaintiff is entitled to an award of $91,200 under this head of damages.

Loss of Future Earning Capacity Claim

[115]     An award
for loss of future earning capacity is made in recognition that a plaintiff’s
capacity to earn income is an asset that has been taken away.  If a plaintiff’s
permanent injury limits him in his capacity to perform certain activities and
consequently impairs his income earning capacity, he is entitled to
compensation: Rosvold v. Dunlop 2001 BCCA 1 at para. 8.  The
plaintiff must demonstrate both impairment to his earning capacity and a real
and substantial possibility that the impairment will result in a pecuniary
loss.  The standard of proof is simple probability, not the balance of
probabilities: Reilly v. Lynn, 2003 BCCA 49 at para. 101.

[116]    
Once that threshold is met, the plaintiff may prove the amount of loss
by one of two calculation approaches, as set out by the British Columbia Court
of Appeal in Perren v. Lalari, 2010 BCCA 140 at para. 32:

[32]      A plaintiff must always prove, as was noted
by Donald J.A. in Steward, by Bauman J. in Chang, and
by Tysoe J.A. in Romanchych, that there is a real and substantial
possibility of a future event leading to an income loss.  If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown.  The former approach will be more useful when the loss is
more easily measurable, as it was in Steenblok.  The latter approach
will be more useful when the loss is not as easily measurable, as in Pallos and
Romanchych.  A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment.  That was the case in both Pallos and Parypa.
 But, as Donald J.A. said in Steward, an inability to perform
an occupation that is not a realistic alternative occupation is not proof of a
future loss.

[Emphasis in
original]

[117]    
No evidence was provided that would allow this Court to quantify, in any
measurable way, what the plaintiff’s future pecuniary loss is likely to be.  In
such circumstances, the appropriate approach is the “capital asset approach”:
once impairment of a plaintiff’s earning capacity as a capital asset has been
established, the court must do its best to put a value on it: Rosvold,
at para. 11.

[118]    
The factors to be considered in assessing loss of
future earning capacity under the capital asset approach were set out in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), cited with approval by Mr. Justice
Taggart in Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.) at para. 25:

[25] The trial judge, as I have said,
referred to the judgment of Mr. Justice Finch in Brown v. Golaiy. 
Future loss of earning capacity was at issue in that case. It stemmed from
quite a different type of injury than the injury sustained by the plaintiff in
the case at bar.  But, I think the considerations referred to by Mr. Justice
Finch at p. 4 of his reasons, have application in cases where loss of
future earning capacity is in issue.  I refer to this language at p. 4
of Mr. Justice Finch’s judgment:

The means by which
the value of the lost, or impaired, asset is to be assessed varies of course from
case to case.  Some of the considerations to take into account in making that
assessment include whether:

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

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

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

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

Plaintiff’s Future Income Had the MVA Not Occurred

[119]     It is
clear on the evidence that the plaintiff had made a long term commitment to a
career as a glazier.  He was good at it and his experience and expertise were well-regarded
by his peers in the industry.  He was confident enough in his abilities to
succeed that he started his own glazing company.  Indeed, Ms. Cameron
testified that 72.8% of glazing businesses succeed.

[120]     Unfortunately,
the timing of the MVA could not have been worse.

[121]     I agree
with the opinions of Mr. Lawless and Ms. Cameron that it is difficult
to predict how successful the plaintiff’s All Star Glass business would have
been absent the MVA.  I accept the opinion evidence of Drs. Travlos and
Smit that the plaintiff’s current cervical neurological problems would likely
have manifested themselves, in the absence of the MVA, by the time the
plaintiff was in his early to mid-50s.  However, the degeneration would have
been a slow gradual process and it is reasonably possible that his tissues
would have adapted to the condition.  I am satisfied on the evidence that
there is a real and substantial possibility that the slow and progressive onset
of his symptoms would have allowed the plaintiff time to adapt and adjust his
work and methods such that, by the time his degenerative condition became
physically limiting, the plaintiff’s business would have been established such
that he would have been able to transition from the hands-on heavy lifting requirements
of the job, to a more supervisory role with others performing the labour.

[122]     It is
clear that, given the plaintiff’s pre-accident schooling, experience and work
history, he will be restricted to low skilled occupations unless he is able to
continue operating his business.  Ms. Cameron provided data regarding
wages for glaziers and glazier contractors in British Columbia.  In 2011,
hourly rates ranged from a low of $15.00 – $19.23, to a median of $21.00 –
$31.00, to a high of $33.00 – $38.46, resulting in median annual earnings of
$49,824.

[123]     I find
that, based upon the average earnings of a glazier in British Columbia working to
age 70, without adjustment for the measurable risk to the plaintiff’s ability
to earn income as a result of this degenerative condition, but adjusted for
risks and labour market contingencies such as illness or injury, poor economic
conditions, attendance at school, child rearing, travel, preference for leisure
over work, and voluntary or involuntary retirement, the present value of the plaintiff’s
future earnings is $696,543 (Peever Report p. 19).

Plaintiff’s Likely Future Income after the MVA

[124]     It has
been almost four years since the MVA.  The plaintiff is not functioning well. 
Despite two operations on his neck, he continues to suffer from significant
pain in that area.  The operation on his right shoulder has resulted in his
shoulder functioning relatively well.

[125]     I accept Dr. Smit’s
opinion that the MVA caused sudden compressive forces to be applied to the
plaintiff’s previously compromised spine  which injured it in such a manner
that resulted in no ability for the tissues to adapt.  The injuries the
plaintiff sustained in the MVA irreversibly changed the course of his life and his
ability to perform in his chosen occupation, at which he had become quite
skilled.  Although he continues to operate his glazing business, he has lost
the ability to perform any of the heavy lifting that the work requires and has
to employ others to do that work.

[126]     It would
have been helpful to the court if Ms. Cameron had been given an
opportunity to meet with the plaintiff, conduct her own tests and provide her
own assessment of his ability to access the workforce.  She was left with
having to provide her comments on Mr. Lawless’ report, indicating several
times that it would have been helpful if he had provided further testing and
information, and at times questioning the validity of his test results.  She
disagrees with Mr. Lawless’ opinion to the effect that the plaintiff’s
pain and mood issues will likely interfere with his ability to re-train. 
However, she provides no foundation for this disagreement other than her
interpretation of the reports of Drs. Travlos and Smit, who recommended
treatment for his mood issues.  She agreed on cross-examination that she did
not know the extent of the plaintiff’s pain symptoms and depression, or how
long he had been on his prescribed medications and what effect they were having
on him.  For these reasons, to the extent that the opinions of Mr. Lawless
and Ms. Cameron are in conflict, I prefer those of Mr. Lawless.

[127]     Indeed,
I accept the functional capacity and vocational assessments provided by Messrs.
Pakulak and Lawless respectively.  They were impressive expert witnesses who provided
their evidence in an objective and helpful manner.

[128]     The
plaintiff is continuing as best he can to operate his business, which involves
work he cannot do physically or safely.  His pain symptoms are chronic and his
depression is worsening.  He has nevertheless demonstrated that his business
has gained traction and has grown since the MVA, despite his being
incapacitated by his injuries, mental health issues and from the three
surgeries.

[129]     The expert
medical and functional capacity evidence is undisputed that the plaintiff will
only be able to manage a part-time sedentary job, assuming he receives
psychological support.  I note that, although in his report Dr. Travlos
indicated he was optimistic that over the next six to eight months the
plaintiff would be able to return to full-time work in a sedentary capacity, at
trial he opined that in reality that assessment was overly optimistic.

[130]     Ms. Cameron
provided the court with a non-exhaustive list of hourly wage ranges for each of
the occupations she believes that the plaintiff, with re-training if necessary,
will likely be able to access.  They are:

[131]     In the
circumstances of this case I find there is a real and substantial
possibility that, for the near future, the plaintiff will be able to continue
to perform the sedentary aspects of his glazing business, at least on a
part-time basis by hiring others to do the physical work, earning $20,000 per
year in the process.

[132]     In the
long run, the plaintiff will have to re-train himself for another sedentary,
part-time occupation.  I find it is reasonable to expect that he will be
able to re-employ himself in an occupation in which he will earn at least the
median wage of $20.00 per hour, working four hours per day, five days per week,
fifty weeks per year, for a total annual income of $20,000.  According to Mr. Peever’s
report, this level of income approximates the annual full-time income of a
cashier (Peever Table 6, p. 23).  Applying the risk and choice
contingencies provided by Mr. Peever, the present value of the plaintiff’s
earnings to age 70 is $391,166.

Calculation of Adjusted Future Loss of Capacity Claim

[133]     Quantifying
the plaintiff’s loss of earning capacity is not an easy task.  I have
determined that the present value of the plaintiff’s future earnings absent the
MVA is $696,543.  I have determined that the present value of what the
plaintiff’s future earning are likely to be after the accident is $391,166,
resulting in a loss of $305,377.

[134]     Like the
award for non-pecuniary damages, the award for loss of future earning capacity
must be reduced to reflect the measurable risk that the plaintiff’s
pre-existing degenerative spinal condition would likely have detrimentally
affected him in the future.  The plaintiff’s non-pecuniary damages award, which
reflects both past and future loss, was reduced by 40%.  An award for loss of
earning capacity is based entirely on future loss which suggests that the
adjustment should be more than 40%.  However, use of the “risk and choice”
contingencies provided by Mr. Peever for the normal chances and hazards of
life, takes the contingency for the plaintiff developing neurological symptoms
as a result of his pre-existing cervical degeneration into account, at least to
some extent.  However, in my view, to account for the plaintiff’s degenerative
condition a deduction of 25% is appropriate in addition to what is already
accounted for in Mr. Peever’s analysis.

[135]     Taking all
of the foregoing into consideration, I assess the plaintiff’s loss of
future earning capacity at $305,377 x .75 = $229,033.

Cost of Future Care Award

[136]     An award
for the cost of future care is based on what the evidence shows is reasonably
necessary to preserve and promote the plaintiff’s mental and physical health: Gignac
v. Rozylo, 2012 BCCA 351 at para. 30.  The extent to which the award
should be adjusted for contingencies depends on the specific facts of each
case.

[137]     I accept
the medical opinion evidence of Drs. Conly and Travlos that there is a real and
substantial possibly that costs will be incurred by the plaintiff for his
ongoing care and support and that, but for the MVA, the plaintiff would not
have incurred such costs until he was in his mid-50s.

[138]     Mr. Pakulak
also provided opinion evidence regarding the likely initial and future costs of
the rehabilitation and other treatments that have been recommended by the
plaintiff’s physicians.  They are:

a)    exercise therapy
sessions: $1,238 for 15 sessions, with periodic review thereafter once or twice
per year, at $83 per session.

b)    annual gym pass:
$432;

c)     ongoing
psychological support: $200 per hour;

d)    job placement
support: $4,000; and

e)    chronic pain
clinic: $8,848 to $14,896.

[139]     I assess
the foregoing one-time only costs at $22,837, as set out in the defendant’s
submissions, based on 20 visits for psychological support and close to the
higher allowance for the chronic pain clinic.

[140]     I assess
the ongoing annual costs of necessary treatments as follows:

[141]     In
addition, Dr. Conly testified regarding the medications the plaintiff is
currently taking which will not reduce his symptoms, but rather merely allow
him to cope with them.  The estimated annual cost of these medications as
opined by Mr. Pakulak is $2,556.00.

[142]     Accordingly,
the total annual costs for the plaintiff’s future care are $3,237.

[143]     Dr. Travlos’s
evidence was that, once his neurological problems developed in his cervical
spine, the plaintiff would likely have required these same treatments.  I agree
with defendant’s counsel that the plaintiff’s pre-existing degenerative
condition was such that there was a real and substantial possibility that he
would have incurred these ongoing costs by the time he reached his mid-50s.

[144]     Applying Mr. Peever’s
future lifetime multiplier to age 55 of $13,496 (Report p. 7) results in a
present value of $43,687.

[145]     The
plaintiff is entitled to a cost of future care award of $22,837 +$43,687 =
$66,524.

Special Damages

[146]     The
parties are in agreement that the plaintiff’s special damages should be
assessed at $4,260.

Conclusion

[147]     The
plaintiff is entitled to judgment against the defendant in the following
amounts:

[148]     The
investment income generated by an award of costs for future care will likely
increase the income tax to be paid by the plaintiff over the years. 
Accordingly, a “tax gross-up” is required to offset the taxes that this
investment income will attract.  Accordingly, there will be calculation of the
necessary tax gross-up to offset any income tax paid on any investment of these
sums.

[149]     Subject to
any submissions the parties wish to make, the plaintiff is entitled to his
costs of the action at Scale B.

“G.C. Weatherill J.”