IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160331

Docket: M130531

Registry:
New Westminster

Between:

Jeffrey David Pike

Plaintiff

And

Ashkan Kasiri

Defendant

Before:
The Honourable Madam Justice E.A. Arnold-Bailey

Reasons for Judgment

Introduction

[1]            
Jeffrey David Pike (“the Plaintiff”) is about to turn 40 years old. Almost
six-and-a-half years ago, on August 18, 2009, at about 7:00 p.m., the
Plaintiff’s vehicle was struck on the right side as it entered an intersection
by a vehicle driven by Ashkan Kasiri (“the Defendant”), who had proceeded
through a red light. Liability for the accident is admitted.

[2]            
Prior to the motor vehicle accident, the Plaintiff was a strong and
healthy person, who worked as a plumber and played baseball at a high level.
Personality wise, he was a well-adjusted, outgoing and sociable man in a happy
marriage.

[3]            
After the accident, the Plaintiff experienced pain and stiffness in his
neck and back, particularly on the lower right side, as well as pain in his
knees, mainly his left knee. He claims to have experienced a sharp pain in his
left groin that gradually developed into a very serious problem in his left
hip, which has required two surgeries and is still symptomatic. He became a
much diminished individual insofar as he could no longer work as a plumber or
play baseball. As at the time of trial, five and a half years post-accident, simple
physical movements and chores still caused him considerable pain and discomfort.
His relationships have suffered and his personality has changed in negative
ways. He has also suffered Post Traumatic Stress Disorder (PTSD) symptoms,
depression and chronic pain, for which he continues to require medication and
counselling.

[4]            
At issue in this trial are causation and the appropriate quantum of
damages. This is a case that requires the Court to make an assessment of the
measureable risk that, absent the accident, the Plaintiff would have been
afflicted with problems due to a pre-existing condition pertaining to his hips,
primarily his left hip.

[5]            
Whereas the Plaintiff claims that the accident activated an asymptomatic
condition in his left hip that has developed into a long-term disability, the
Defendant’s position is the Plaintiff suffered only a moderate soft tissue
injury to his neck and lower back that permitted him to return to work shortly
thereafter. The Defendant submits the Plaintiff had pre-existing degenerative
changes in both his left and right hips, and the evidence shows that his left
hip in particular would have become symptomatic in five to ten years, even
absent the accident. Further, the Defendant submits there is a lack of independent
evidence to support the Plaintiff experiencing contemporaneous hip pain in the medical
records; and apart from the accident, there were many intervening potential
causes, any one of which could have aggravated his left hip. Therefore, the
Defendant submits that much of the loss suffered by the Plaintiff is unrelated
to the accident and is not compensable.

The Evidence

[6]            
In addition to his own testimony, the Plaintiff called 11 witnesses at
trial to testify about his life before and after the accident. He also called
his family doctor to testify about his visits and her records, and seven expert
witnesses from a variety of fields, including medical witnesses, who offered
opinions on the extent of his injuries arising from the accident and his
prognosis for recovery.

[7]            
The Defendant called a medical expert and an expert in labour economics.

[8]            
Each expert called has provided a report, if not several, including
updates. Further, the parties filed Exhibit 2 jointly, a large volume of documents
pertaining to the damage to vehicles from the accident, the Plaintiff’s income
from 2002 to 2012 from his past employment as a plumber, the medical treatment
he has received, including from his family doctor, his baseball team’s statistics
and his academic history.

[9]            
The Court has reviewed and considered this material, in particular as it
has been relied or commented on by witnesses. The Court has also carefully
reviewed and considered all the testimony heard at trial.

[10]        
At this point, it is necessary to provide a summary of the evidence to
ground subsequent findings as to credibility, reliability, and ultimately, the
key facts upon which this decision rests.

Assessing the Evidence

[11]        
The factors to be considered when assessing credibility
were summarized by Madam Justice Dillon in Bradshaw v. Stenner,
2010 BCSC 1398 at para. 186, aff’d 2012 BCCA 296, as follows:

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

[12]        
To these points, I would add the following remarks of Madam Justice Dickson 
(as she then was) from Hardychuk v. Johnstone, 2012 BCSC 1359:

[10]         The
typical starting point in a credibility assessment is to presume
truthfulness:  Halteren. Truthfulness and reliability are not,
however, necessarily the same. A witness may sincerely attempt to be truthful
but lack the perceptive, recall or narrative capacity to provide reliable
testimony. Alternatively, he or she may unconsciously indulge in the human
tendency to reconstruct and distort history in a manner that favours a desired
outcome. There is, of course, also the possibility that a witness may choose,
consciously and deliberately, to lie out of perceived self-interest or for some
other reason. Accordingly, when a witness’s evidence is demonstrably inaccurate
the challenge from an assessment perspective is to identify the likely reason
for the inaccuracy in a cautious, balanced and contextually sensitive way.

[11]        
The presumption of truthfulness will be displaced by convincing evidence of
deliberate falsehood. Such evidence may take many forms. There is no hard and
fast rule as to how falsehood on a plaintiff’s part may be demonstrated in a
personal injury action. In my view, however, in most such cases fairness will
require that a plaintiff be given an opportunity to respond directly to an
assertion of deliberate untruthfulness before his or her credibility, as
distinct from reliability, is successfully impeached:  R. v. Lyttle,
2004 SCC 5; Browne v. Dunn (1893), 6 R. 67 (U.K.H.L.).

[13]        
In a personal injury case like the one at bar, it is also important to
point out that if a plaintiff’s account of the change in his physical, mental
and/or emotional state as a result of the accident is not convincing, then the
hypothesis upon which any expert opinions rest will be undermined: Samuel v.
Chrysler Credit Canada Ltd., 2007 BCCA 431 at paras. 15, 49-50. But
minor inconsistencies between what a plaintiff says as a patient to a medical
practitioner sometime prior to trial and their testimony at trial will not, in
and of itself, determine the credibility of a particular plaintiff: Stull v.
Cunningham, 2013 BCSC 1140 at paras. 71-73.

[14]        
In assessing the evidence the Court will be guided by these basic
principles.

Lay Witnesses

Jeff Pike – the Plaintiff

[15]        
The Plaintiff was born in 1976 and was 33 years old when the accident
occurred. He testified about his family and upbringing in Burnaby. He was very
athletic in high school, playing many sports.

[16]        
He had various jobs while in high school and then attended BCIT to take
a marketing management program. However, he did not get good grades and took a
break, going to work at Save-On-Foods where he had worked previously. He
returned to BCIT for a semester and was more successful, subsequently taking
further courses in business management. He then worked on cruise ships with an
intervening stint as a travel agent. He returned to work as a travel agent, employed
by Canada 3000, but opportunities there ended when that company went bankrupt.
He also did various construction jobs.

[17]        
In 2002, at age 26, the Plaintiff started working in the plumbing trade.
The next year he commenced a plumbing apprenticeship. His work involved
considerable heavy lifting and manual labour. The work was primarily commercial
plumbing. Over time his skills and responsibilities increased and the program
required him to complete a two to three month course every year.

[18]        
The Plaintiff described his work as a plumber. He said that one has to
be a “contortionist”, able to get into small areas with lots of climbing up and
down ladders, onto roofs and into attics. He enjoyed the variety of the work
and the sense of accomplishment that came with completing a job. He became
fully certified as a journeyman plumber in 2007, earning about $25 per hour.
When the Plaintiff stopped work as a plumber he was earning $26.50 per hour. Usually,
he would get a raise each year of about a dollar an hour and also receive
bonuses. As a journeyman plumber, the Plaintiff said he still did a great deal
of physical work, but typically he tried to get the apprentice to do the non-skilled
work like digging, lifting and jack-hammering to break up concrete.

[19]        
The Plaintiff described his typical day on the job as a plumber. He got
up at 6:00 a.m. He went to the wholesalers between 7:00 and 7:30 a.m. with a
list based on the jobs for the day, talked to the other plumbers, had a coffee,
and then left at 8:00 or 8:30 a.m. to go and do the jobs, driving to wherever
they were and finishing up at 3:00 or 3:30 p.m. After work, he would go home
and take a walk, exercise, get dinner and then head out to play baseball or
kick a soccer ball around, going to bed around 10:30 to 11:00 p.m.

[20]        
In terms of recreational pursuits, the Plaintiff continued to play many
sports such as soccer and golf in adulthood, but his main sport was baseball.
By all reports the Plaintiff was an excellent baseball player, even having been
scouted by the Florida Marlins while playing for the Coquitlam Reds in his late
teens. After the Reds, the Plaintiff joined a team now called the Coquitlam Dukes
(“the Dukes”) when he was 28 or 29 years old. His brother and cousin also played
for that team, which is coached by Alex Szabo, who testified at trial. The
Plaintiff stressed that the league to which the Dukes belong, the Fraser Valley
Fast Pitch League, is a well-organized league where serious baseball is played,
as opposed to a “beer league.” Teams in this league play in the Canadian
nationals and also play teams from other countries. The Plaintiff’s position is
in centre field, a position he said is saved for someone with a lot of speed
and a good arm, who is essentially the captain of the outfield.

[21]        
The Plaintiff said that he was a really good baseball player and holds
many records for stolen bases and batting averages. He last played baseball in
the 2009 season, which ended in early August, just before the accident. He
described the ways in which his involvement in baseball defined his social life
and his pursuit of other recreational activities with people he knew through
baseball. Since the accident, he said that he has attended a few games and
opted not to become a coach because the pain he experiences prevents him from
demonstrating skills.

[22]        
Another important aspect of the Plaintiff’s life is his close relationship
with his family, who he has continued to see regularly since moving out of his
parents’ home. He met his wife, Carly, in 2002 at his cousin’s wedding and they
married in 2008. At the time of trial they continued to live in a condo that they
purchased in April 2007. The Plaintiff described the many social and
recreational activities that he enjoyed with Carly and others during this
period. These included family dinners, watching movies at home, having
conversations, camping, going out to the bar, going out for drinks and dinner, and
travelling to places in BC and out of the country. A trip to the Dominican
Republic with a group was a particularly good time.

[23]        
The Plaintiff and his wife planned to have a family and wanted to get a
house. She aspired to become a paralegal and he wanted to start his own
plumbing business within five to ten years. He said that he had taken marketing
management at BCIT and had several friends with their own businesses. He said
he had discussed this plan with Troy van de Waal, the son of his boss.

[24]        
The Plaintiff described himself before the accident as “a healthy guy
with nothing wrong,” except he needed the odd lower back adjustment. Prior to
the accident he said that he had not been in any “fender benders”. Since the
accident the Plaintiff said that he had been involved in a minor fender bender
a couple of years ago that occurred when Carly was driving. They were following
his brother to go camping and she rear-ended him by sliding into the back of
his brother’s vehicle. He said there were no injuries resulting from that
incident.

[25]        
The Plaintiff also confirmed that he had seen Dr. Olson, a
chiropractor, on June 8, 2009 (prior to the accident) and had drawn a diagram
at that time that showed pain radiating from his lower back and his right
buttock. He described the back issue that took him to Dr. Olson to be a
small one. He said that prior to the accident he did not have any hip pain. He
also said that pain he experienced in his right hip prior to the accident was
not similar to the pain he has experienced since. He indicated he had experienced
episodic back pain prior to the accident, going back years to when he worked
packing groceries at Save-On-Foods. Other than this, he had only experienced
minor cuts and abrasions from sports and no other back injuries.

[26]        
Prior to the accident the Plaintiff did not have a family doctor, so he
went to his wife’s doctor, Dr. Fyfe, two or three days after it occurred.
He needed to see a doctor for the pain and all the symptoms he was experiencing
in his neck, back and knees. After his initial visit to Dr. Fyfe, the
Plaintiff said that he tried to go at least once a month to provide her with an
update on his symptoms, and for her to note any progression or regression in
his condition.

[27]        
The Plaintiff described the accident as occurring at about 6 p.m. on
August 18, 2009, as he was driving his Jeep on the Mary Hill Road in Coquitlam.
He was driving towards a light that was red and then went green. He coasted
down and into the intersection with Pitt River Road with a green light for him.
As he was going through the intersection, the Defendant’s vehicle came out of
nowhere on his right side and he hit it. His Jeep was spun about 90 degrees,
perpendicular to the point of contact; it was written off after the accident. The
other vehicle was pushed forward and spun around, ending up facing oncoming
traffic. The Plaintiff said that his friend, Jamie Costa, was driving right
behind him and came to see if the Plaintiff was alright. Mr. Costa walked
him over to the curb where the Plaintiff said he felt dazed and very
disoriented. He experienced a numb tingling sensation all over, stiffness and a
lot of head, neck and back pain. The attending firefighter braced his neck and
he travelled on a flat board to the Royal Columbian Hospital in New Westminster
by ambulance.

[28]        
The Plaintiff said that he was released from the Royal Columbian
Hospital after x-rays were taken of his back and neck. His wife had joined him
in the emergency department of the hospital and his mother came to pick them
both up. The Plaintiff described that he was standing outside the hospital with
his wife having a cigarette when he experienced a really sharp pain in his left
groin. Thereafter, he was off work for about two weeks and could not do much.
He was bedridden or confined to the couch, and during this time was extremely
stiff and sore. He had been given cyclobenzaprine and naproxen.

[29]        
After about two and a half weeks, the Plaintiff returned to work at
Preferred Plumbing, where he had worked since 2002. If he did not work he did
not get paid. He was also getting pressure from his boss to return to work. Once
back at work he did light duties and accompanied his apprentice to make sure
the latter was doing a good job. His apprentice, Chris Hodgson, had to do all
the heavy lifting. There were many aspects of the job that he could not do;
things like bending over, lifting his arms above his head or getting down on
his knees. He did not move or manipulate his body so as to aggravate his
position or cause further pain. The Plaintiff continued to experience pain in
his neck as well as his upper, mid and lower back, particularly on the right
hand side. As well, the pain in his left hip gradually increased from the time
he first felt the pain in his left groin standing outside the hospital. As his
body loosened up over time, the Plaintiff said the pain in his left hip
increased.

[30]        
The Plaintiff continued to work from about two and a half weeks after
the accident (early September 2009) until February 2010, when he stopped
working. He said his symptoms continued; his left hip kept getting worse and
his back was not getting any better. It became too much for him to do the basic
tasks required of a plumber. He was in too much pain and he had called in too
many days unable to work. The Plaintiff said that he would experience symptoms
all day, especially in the morning. By the afternoon he had “loosened up
slightly”, but was still stiff and sore. He could not do his usual activities.

[31]        
The Plaintiff recalled that in mid-October 2009 at a barbeque, after a
few drinks he felt relaxed and less stiff and danced. He said that right away
he noticed that something was not right as he experienced a sharp pain in his
left groin. He said he raised his symptoms with Dr. Fyfe in October once he
“figured out something was going on with his hip.” He said Dr. Fyfe
ordered an x-ray of his left hip and he went and had it done. In terms of his
back he said he experienced the symptoms “pretty much right away,” and they
just kept getting worse in the first six months after the accident.

[32]        
On the recommendation of Dr. Fyfe the Plaintiff started
physiotherapy with Case Halverhout at Burke Mountain Physiotherapy. Initially he
went for treatments two to three times per week and then he attended on and off
for two to three years. The Plaintiff indicated that the records of Mr. Halverhout
included a reference to an incident on November 2, 2009, when the Plaintiff
experienced an extremely sharp left hip pain and fell to the ground to
alleviate it, staying “on all fours” until the pain subsided and he could move
again. He said that just the motion of getting out of bed caused this sharp
pain, which was similar to ones that he had previously felt.

[33]        
The Plaintiff described the medications he took and their effects upon
him. Initially he took cyclobenzaprine and naproxen and then he was on oxycodone
and rabeprazole for acid reflux. He said oxycodone made his whole body numb and
he experienced anger issues, became short-tempered, dark and lethargic, and his
attitude changed. He took it for several years and became dependent upon it.
After he got his left hip resurfaced in April 2012, the nurse practitioner
recommended that he toss that medication in the garbage if he could, and he
discontinued taking oxycodone. He was placed on naproxen and hydromorphone, the
latter for a couple of weeks, and then on Nucynta, an extended opiate-based
pain killer, and Cymbalta, an anti-depressant and pain reliever. At the time of
trial the Plaintiff said he was taking rabeprazole and Nucynta twice a day and
90 mg. of Cymbalta daily. He indicated that Nucynta and Cymbalta currently cost
him $350 per month and are being paid through no-fault insurance.

[34]        
The Plaintiff had arthroscopic surgery on his left hip in April 2010,
which was performed by Dr. Gilbart. Dr. Fyfe referred him, and to
avoid a three-year wait list he paid privately an amount of just under $10,000.
He said he could not wait because of the pain he was experiencing. During this
time his back symptoms lessened because he was not doing much, and applying heat
and doing physiotherapy helped. He was off work a further six months and
returned to work at Preferred Plumbing in September or October 2010.

[35]        
Upon returning to work the second time after the accident, the Plaintiff
said his back and neck symptoms remained the same and his left hip became more
and more aggravated. He was testing himself to see if he could continue to have
a career as a plumber and so he did more. Even with his apprentice, Chris, doing
the heavy lifting and the awkward work, his work sparked more symptoms. As this
was his second attempt to return to work, the Plaintiff said he felt more
pressure from his employer to make a comeback. When he got home from work he
said he was “pretty much” on the couch or on the bed “grasping at any sign or
relief from pain” and was taking oxycodone and rabeprazole. The surgery
performed by Dr. Gilbart had provided relief from the pain in his left hip
until he returned to work, when he experienced sharp pains and “clicking and
clunking” in his left hip, slight swelling and pain with movement.

[36]        
The Plaintiff stopped work a second time at the beginning of May 2011
and has not worked since. He stopped working because he was experiencing too
much pain and discomfort, and could not complete his plumbing tasks. He had
enough of trying to deal with his work in his condition. At this time he said
he was frustrated, depressed, angry and in “a very dark spot.” He was on oxycodone
and naproxen “to top up,” in addition to rabeprazole.

[37]        
The Plaintiff was then referred to see Dr. Rhonda Shuckett, who contacted
Dr. Clive Duncan, a hip specialist. When the Plaintiff saw Dr. Duncan
in August 2011, Dr. Duncan told the Plaintiff he had two options: a full
hip replacement or a Birmingham resurfacing. After investigating and
considering it, the Plaintiff chose the latter. That surgery was performed by Dr. Duncan
in April 2012. It involved three days in the hospital, being bedridden for a
week to two weeks, and then a gradual recovery. During this time his
medications were changed from oxycodone to hydromorphone. After a month or two
on crutches, he went to using a cane for several months. He was fully weight
bearing on the hip in four to six months. The Plaintiff said this recovery was
much more difficult than the one he experienced with the arthroscopic surgery
performed by Dr. Gilbart. He required assistance to do the most basic of
tasks like putting on his socks, had to cut his underwear so it would fit on
and could not walk to the fridge to get a glass of water. The Plaintiff said
that his mother helped by driving him to appointments. His wife and friends also
helped him in various ways. During this time the Plaintiff said his other
symptoms stayed the same and nothing really got better, although at times he
would get relief by stretching or applying heat. As he recovered from the
surgery he experienced clunking and a lot of movement in his left hip. When he
moved in certain ways he would experience very sharp pains. However, the
Plaintiff did say that the surgery performed by Dr. Duncan provided relief,
resulting in a different pain of lower intensity and reducing the sharp pains
he would experience. He said he kept Dr. Fyfe informed about his symptoms.

[38]        
At the time of trial the Plaintiff said he still experiences movement as
well as “clicking and clunking” in his left hip. He said it feels like there is
something in the artificial metal parts that should not be there. He
experiences clunking when he shifts or moves and “contact” in his hip when standing,
twisting, or going up stairs. Overall, his left hip is still painful and he
experiences muscle spasms and pain shooting down his leg. Every day he wakes up
wondering how his hip will be.

[39]        
With regard to the Plaintiff’s right hip, he said he had no problems
with it prior to the accident. Since the accident he has had problems similar
to those with his left hip “but nowhere near the intensity” and without the
sharp pains. He has told his doctor about his right hip and has not required
treatment for it.

[40]        
In the six months leading up to trial the Plaintiff said in addition to
his pain and problems with his left hip, his neck is always stiff and sore and
he is always stretching to make it feel “half decent”. The top and middle parts
of his back have the same stiffness and soreness. His lower right back is still
extremely painful all the time and pain runs down his left leg. He experiences pain
and “clicking” in his left knee and the same in his right knee and hip, but
less than on the left.

[41]        
With regard to his emotional and psychological state, the Plaintiff said
that he gets headaches “pretty much all the time” and rarely had them before
the accident. They were particularly severe in the first six months post-accident
and then diminished gradually. At first he could not sleep and found it hard to
rest. He had nightmares about the scene of the accident. He experienced anxiety
at the prospect of being in a car and, when he was in one, he would start to
sweat and his anxiety would spike even though he has been driving since the age
of 16. If he saw red traffic lights, the Plaintiff said he thought he would die
every time someone pressed down on the brakes. If he drove he felt more in
control, but he was still hyper-vigilant of traffic; and if driving for
extended periods he has to plan where to stop and stretch. As a passenger he
would lash out and become angry and grab the wheel. He was referred to Dr. Grace
Hopp by Dr. Fyfe when he told her about his dreams and anxiety. He said
his therapy with Dr. Hopp has helped, but this problem has not totally
dissipated; he is still jumpy and has to use breathing and distraction
techniques to manage.

[42]        
The Plaintiff said that he has experienced great feelings of depression
since the accident, whereas prior to it there had only been one such instance
when his cousin passed away in June 2005. After the accident the Plaintiff said
he was in “the darkest spot” and felt useless. He thought he would recover, but
then when he got worse and he could not do the things he did before and started
to lose his daily routine, he considered suicide a few times a day. He told Dr. Fyfe
about this. He said he has been dealing with suicidal ideation with Dr. Hopp,
and there has been improvement. He also takes 90 mg. of Cymbalta a day, which
is an anti-depressant.

[43]        
After the accident the Plaintiff had to depend on his family. He said
his mother took over the role of nurse and also finished the renovations that
he had started in his house before the accident, as they sat there uncompleted.
Prior to the accident the Plaintiff said that he would have done it all
himself, except perhaps he would have gotten some help laying the floor.

[44]        
The Plaintiff explained that he has experienced an anger problem since
the accident. Prior to it he could deal with things and joke around. He did not
take things personally. Since the accident he has done a complete “180.” People
who use certain tones throw him off, and if someone looks at him a certain way
he “just jumps down their throat.” This applies to his friends, his brother and
especially to his mother and his wife. This has really taken a toll on his
relationships. He has had a lot of arguments with family that he has started or
escalated. He goes to family dinners less often now and has his own chair with
arm rests at his parents’ table. Some days he does not want to be there and
spends less time there after dinner.

[45]        
Presently, the Plaintiff says he has a better grasp on anger control,
but thinks it will continue to be a problem in the future. He has to convince
himself that things are not as bad as they are. He feels frustration every day.
He tries to calm himself down with breathing techniques and visualizations. The
constant pain and discomfort get him down, as does the fact that he cannot move
physically the way he used to. He said it is a vicious cycle. He feels
inadequate and he cannot go out and have some fun “to vent”. He feels now like
a completely different person than he was before the accident.

[46]        
Socially, the Plaintiff had a good circle of friends before the accident
and described himself as “happy-go-lucky Jeff”. Baseball was a major part of
his social life for 70 to 75 days a year and he said he enjoyed it immensely. While
the Plaintiff and his wife both had separate friends and went out separately
upon occasion, they also did a lot of things together and enjoyed them. Life
was good, his relationship with his wife was good, they had plans for the
future and were happy together. While their relationship was not without some issues
in those days and they had some mild arguments, they were not the kind of
arguments that risked their splitting up. Ultimately they became closer.

[47]        
After the accident the Plaintiff became the “grumpy, negative, angry guy
in the corner”. The Plaintiff said that he has to hide his true feelings about
doing things together with his wife, as his concerns are how long will they be
out, how far do they need to go, and how much is there to carry. He and his
wife have had serious arguments about him not wanting to go places as he is
often “a ball of stress and pain” and prefers to stay at home and lie down. The
Plaintiff says he is “a ticking time bomb”, he blows up, and his arguments with
his wife are a lot more heated and hurtful. He spends a lot of time alone at
home while his wife goes out for lunch, dinner or to the bar with her friends. He
recalled that his wife went to the 2010 Olympics without him as mentally and
physically he was not up to it, and did not want to be pushed around in a
wheelchair.

[48]        
When the Plaintiff has gone out on occasion or taken trips, he described
how they differed from his outings before the accident. He described several
camping trips with his wife during which he “was the guy standing watching her
set up and load or unload”, whereas pre-accident he would have done it all. He
referred to a trip to Penticton and having “a blowout” with his wife there. He also
described a trip to Mexico in February 2013 with his wife and other friends and
how much his activities were curtailed in comparison to a pre-accident trip he
took with his wife and others to the Dominican Republic. On the Mexico trip the
Plaintiff said while others did various activities he was doing his exercises
and taking his pills; he could not drink much, could not dance and had to go
back to his room early to lie down.

[49]        
He said his wife’s attitude towards him and his injuries has changed.
Right after the accident she was in disbelief, but then it changed over time
and “she gets it now” in terms of how it affects his future. The Plaintiff said
counselling with Dr. Hopp has helped him, and that he and his wife could
benefit from couple’s counselling and the funds to pay for it. However, he said
that he felt it best to fix himself before he tried to fix anyone else.

[50]        
In terms of their sexual relationship, the Plaintiff said there has been
a 100 percent change. Prior to the accident it was good and after the accident
and after each of the surgeries he was numb below the waist. There was
resentment on both sides and now they are trying to get back together to make
things work. He is concerned whether his marriage will survive.

[51]        
The Plaintiff and his wife have a newborn baby. He said he experiences
stress and pain if he knows he has to move his child, although he knows he has
to do it as “life goes on”. He said there is pain and discomfort involved with
every action. For example, he finds carrying the car seat is awkward and causes
him pain. He is concerned that he will not be able to do the bending, twisting
and lifting related to childcare when the baby gets heavier and that he will
not be able to run after his son when he is mobile or actively play with his
son as he grows older.

[52]        
In reviewing his claim for special expenses the Plaintiff said that he
took courses from BCIT in management in 2012 because he did not want to sit at
home and do nothing. He had decided after his left hip resurfacing that going
back to work as a plumber was not an option. His hip was an obvious problem and
his back was “just as bad”. He said he discussed this with his doctor.

[53]        
The Plaintiff testified about changing his job and the vocational counselling
he received. Property management was suggested but after considering it, he
rejected the idea. The fact that he would always be on the job and required to
do certain physical tasks to fix things he considered to be too stressful. Then
the Plaintiff considered golf operations management, saying that he “was
ecstatic about the idea” as it was a great opportunity to work in a sport he
was passionate about. He opted for on-line study as he did not have to drive to
attend and could physically move around at home as needed. He started the
Selkirk program in November 2013 and will complete it in January 2016. His
course load has varied in different terms (between one and three courses per
term) and on average the Plaintiff said he spends six to eight hours per week
per course studying. Through vocational counselling, arrangements were made for
him to meet individuals who work in golf management, but he has not obtained
employment through these meetings to date. His chances for this type of
employment will be improved if he qualifies to join the Canadian Professional Golfers’
Association (“CPGA”), which requires an individual to meet certain criteria and
to obtain a certain golf score. But his ability to play golf has been hampered
by the accident as his swing has changed. It has been suggested to him the way
to get a job at a golf club is to get initial experience as a volunteer. Ultimately,
he would like to end up as a manager of a pro shop and his goal is to do so in
10 to 15 years, gradually building on his experience working at a golf course.
At management level he may earn between $40,000 and $55,000 per year, whereas
in a starting position he expected to earn slightly above minimum wage.

[54]        
The Plaintiff was cross-examined extensively on his evidence-in-chief.

[55]        
In terms of the accident, the Plaintiff agreed that he was walking at
the scene before being placed on the stretcher. He also agreed, looking at
photographs of his vehicle, that there was no damage to the driver’s door or
the driver’s side passenger door and no intrusions into the vehicle from the
collision. At the hospital, the Plaintiff said that in addition to the head and
neck pain noted by the medical staff, he also complained of pain in his upper
back. When his pain lessened he was up and walking. He walked out of the
emergency department with his wife.

[56]        
The Plaintiff was cross-examined about his evidence that he experienced
a pain in his left groin several hours after the accident, while standing with
his wife outside the emergency department approximately five minutes after he
left the hospital. He agreed this groin pain was unique and said it caused him
to flinch. He agreed that he was an athletic guy, but also thought as he had
just been in a car accident he was going to experience some pain in the days to
come. He said when he told his wife, she said “you were just in a car
accident.” He agreed that he did not think about going back into the hospital
to report it.

[57]        
The Plaintiff also agreed that he did not mention this incident of unique
pain outside the hospital emergency to Dr. Fyfe when he saw her three days
later or in the next three months. However, he thought the first time he
mentioned experiencing left hip pain to a medical practitioner was in October
2009 to Dr. Fyfe.

[58]        
As to when the Plaintiff first told a doctor about the incident of sharp
pain outside the emergency department, he denied that it was about two years
later when he saw Dr. Duncan on August 26, 2011. He did agree that the
history noted by Dr. Duncan at p. 3 of his report – that he had
experienced a short-lived groin pain leaving the emergency department and it
had settled about two months later – was correct. He also believed that he had told
Dr. Fyfe and Mr. Halverhout about this incident.

[59]        
On August 21, 2009, when the Plaintiff first saw Dr. Fyfe, he
agreed that he provided a complete report of his problems up to that point,
which included tingling and weakness in his hands, arms and legs, and no
mention of his left hip.

[60]        
Other visits by the Plaintiff to see Dr. Fyfe were reviewed,
including the ones on October 23 and November 7, 2009. On October 23, 2009, Dr. Fyfe
noted that the Plaintiff reported that he was a “lot better”, but was still
stiff between his shoulder blades with pain in his left lower back that wrapped
around to the outside of his left hip area. He was to continue with physiotherapy
and massage treatments. Prior to that date the Plaintiff said he realized that
he could not do any sports as he recalled kicking the ball around and trying to
start running but experiencing a sharp pain in the (left) groin. Dr. Fyfe
sent him for an x-ray, which records show was done on November 3, 2009. She
reviewed the results with him on November 7, 2009, when she noted that he
should have an MRI on his hip. Then the Plaintiff agreed that her note from
November 30, 2009, indicated that he was getting worse and referenced his hip
and low back. When he went again on December 16, 2009, she noted that his hip
was getting worse and his low back was still hurting. Prior to his next visit
on January 14, 2010, the Plaintiff agreed that Dr. Fyfe noted he had been
to the emergency department in the interim due to increased back pain and was
walking with a stiff limp. The Plaintiff agreed to that point in Dr. Fyfe’s
records there is no reference to groin pain and he does not recall using the
word “groin.”

[61]        
Then counsel for the Defendant reviewed with the Plaintiff the notes of the
physiotherapist, Mr. Halverhout, covering approximately the same time
period after the accident. The Plaintiff agreed that in Mr. Halverhout’s
intake diagram dated September 24, 2009, the areas of concern were the neck and
upper back, and numbness in both hands was noted, with his pain described as
constant and decreasing. By this time the Plaintiff agreed that he had been
back to work for about 14 days and he made no complaint regarding his (left) groin
or hip in this initial assessment. The Plaintiff also agreed that in relation
to Mr. Halverhout’s note that the Plaintiff got out of bed and fell to the
ground on November 2, 2009, due to his leg collapsing, the Plaintiff did not
refer to his groin. However, the Plaintiff said that it was a sharp pain in his
(left) groin that caused him to fall. He admitted that it would have been
important to tell Mr. Halverhout and Dr. Fyfe about the sharp pain in
his groin and he did not. The Plaintiff described this fall as a controlled
collapse to the floor that ended with him on all fours until the pain subsided.

[62]        
The Plaintiff was also asked about his visit to Dr. Olson, the
chiropractor, prior to the accident on June 8, 2009. At that time he reported
having back pain for years and right hip pain recently, indicating that these
problems had been going on for three weeks, off and on. The Plaintiff denied
that these problems were due to his athletic endeavours, indicating that he had
a constant dull pain and brief, sharp pains. The Plaintiff answered a question
on the intake form as to what his current problem was preventing him from doing
or enjoying by writing “Everything.” The Plaintiff agreed that he had experienced
sharp pain at this time. His attention was drawn to the diagram that showed the
areas of his body that were bothering him to be his lower back and right hip.
Asked why he did not tell any of his treating physicians about this treatment
two months prior to the accident, the Plaintiff said he believed he did and if
he did not, he did not know why.

[63]        
In his report (at p. 10), Dr. Bishop, the spine specialist, noted
the Plaintiff’s prior medical history was negative for prior hip problems and
included a back problem in the 1990s. When asked why he did not tell Dr. Bishop
about the problem with his lower back or right hip, the Plaintiff indicated
that he was not sure, that he continues to be open with “his stuff” and he
supposed that he did not mention it if it was not in the doctor’s report. He
said: “I tell people I have back issues prior to the accident.” As this has
been going on for five-and-a-half years he said that it was impossible for him
to remember every word he told to the doctor. The Plaintiff pointed out that he
did tell Dr. Bishop about the problem in the 1990s, and prior to the
accident in 2009 that he continued to work, but may have missed a few baseball
games.

[64]        
The Plaintiff was cross-examined about aspects of his medical history
noted by Dr. Gilbart in his report, including that he denied “any pre-existing
history of pain in the neck, mid back, low back, left or right hips, or knees
prior to this accident.” The Plaintiff agreed that this information was not correct.
I note, however, that the Plaintiff did report to Dr. Gilbart that he saw
a chiropractor in June 2009 for left upper back pain, as noted by Dr. Gilbart
– “left upper back pain after sleeping in an unusual position” – that resolved
after chiropractic treatment. The Plaintiff also agreed that when Dr. Gilbart
noted (at p. 3) that he had “neck pain, mid back pain, low back pain, left
hip pain, right hip pain, right knee greater than left knee pain from the time
of the motor vehicle accident”, this was not correct; his left hip pain
initially only occurred on the one occasion on the day of the accident. First
his left hip became painful and about six months later his right hip became
painful. Thus, the Plaintiff said Dr. Gilbart was not accurate when he
reported that the Plaintiff’s right hip pain presented within one to two months
of the accident. The Plaintiff agreed that if he had right hip pain earlier he
would have told Dr. Fyfe. He also agreed several months after his left hip
became painful, his right knee became painful.

[65]        
The Court has carefully considered the evidence of the Plaintiff in
terms of his credibility and reliability and has concluded that overall, he is a
credible witness. In terms of his reliability, there appear to be several
discrepancies in what physicians noted regarding his past medical history and
what appears to actually have been correct; in particular, the extent of the
injuries he described at the hospital emergency at the outset, to Dr. Fyfe
in the early weeks and then to Dr. Gilbart. The responsibility for that
may rest with the Plaintiff or with the physicians who, while taking his history,
were more focused on other or more immediate symptoms. However, the Plaintiff
has been generally consistent about the onset of pain in his left hip,
occurring first with the single incident of sharp pain in his left hip as he
was waiting to be picked up outside the emergency department the day of the
accident, and the gradual onset of problems with his left hip up to early
November 2009 that continued to worsen thereafter, and which preceded the onset
of problems with his right hip by about six months. Although it is clear that
he reported right hip pain and pain in his lower back to Dr. Olson, the
chiropractor, in June 2009, it appears despite what he may have said about the intensity
of pain at the time, the problem resolved prior to the accident. I note he did
not miss any work during that period and none of the people associated with him
who have testified referred to him having significant prior physical problems.
To the contrary, prior to the accident he was active, physically fit, a very
good baseball player and a hard and conscientious worker in his role as a
journeyman plumber, which involved much physical strength and flexibility. He
was also psychologically and emotionally sound.

[66]        
Specifically, with regard to his experiencing the sharp pain in his left
hip the day of the accident, upon which much of the expert medical opinions regarding
causation hang, I accept the Plaintiff’s testimony. It was accompanied by a
somewhat precise recollection of surrounding details and also an appropriate
lack of detail as to exactly what his conversation was with his wife at the
time. If his evidence was concocted, I am of the view that his recollection of
the event would have been more fulsome and pat in its presentation, which was
not the case. He also would have been more likely to exaggerate his left hip
pain from the outset. It must be remembered that he had other injuries and
aches and pains in the period of time immediately following the accident, and
there was no particular reason for him to attach great significance to a single
sharp pain in his left hip that then subsided. I expect his referring to left
groin pain in relation to the pain in his left hip (the correct use of the word
“groin”) crept into his vocabulary as his contact with the medical profession
increased.

[67]        
The Plaintiff came across as someone genuinely very burdened by what has
happened to his life since the accident, and as a person who is trying to cope
with his pain and physical limitations, but finding it very tough. He was in
the witness box for a number of hours over two days during which he showed
consistent signs of physical discomfort that did not appear feigned or
exaggerated.

[68]        
Also indicative of his credibility is my finding that the Plaintiff was
not prone to exaggeration while testifying. There were a number of
opportunities where being truthful involved acknowledging improvements in his
condition that were on their face contrary to his interest. He acknowledged
improvements in his symptoms and pain when they occurred without hesitation, in
particular to his headaches, right hip and back. Nor, on several occasions, did
he concoct an explanation for something that he was unable to explain. In my
view, it is to be expected that the Plaintiff would not have a detail-perfect
recollection of every ache, pain, doctor’s appointment, recitation of his
medical history or symptoms from events that started occurring five-and-a-half
years prior to trial. The Plaintiff’s focus was to get back to work and resume
his life, not to accumulate a detailed day-by-day mental log of his symptoms,
pain, and his responses to the questions asked of him by numerous medical
professionals over time, when his own situation was changing. He also applied
himself with vigour and prolonged commitment to his recovery, both physically
and mentally, making two extended efforts to return to work as a journeyman
plumber.

[69]        
It is also to be remembered that until the Selkirk College program, the
Plaintiff did not do well academically. Journeymen plumbers have specific
skills. It appears that a refined ability to communicate orally and a prodigious
memory are not among the Plaintiff’s predominant strengths. Their lack does not
detract from his basic honesty and his best efforts at recall. After the
accident and indeed continuing to the time of trial he has continued to
experience debilitating pain and psychological trauma and depression. These did
not exist prior to the accident. Despite the odd apparent inconsistency, I
accept the Plaintiff’s evidence.

Carly Pike – the Plaintiff’s wife

[70]        
Carly Pike is married to the Plaintiff. She had their first child in
January 2015 and was on maternity leave from her job as a paralegal at the time
she testified. She met the Plaintiff at a wedding. They dated for a number of
years and started to live together in April 2007 in the condo they purchased.
They married in May 2008.

[71]        
She described her husband pre-accident as a “happy go-getter” who was
outgoing and funny. He could be “the life of the party.” He enjoyed socializing
with people, playing sports, in particular, baseball and seemed to be a good
player. She went to most of his games. They had plans to buy a house and have a
family. She wanted to become a paralegal and did so, and he became a plumber
with plans to open his own plumbing business. As a couple they had an active
lifestyle. She said they enjoyed themselves and got along “great.” They enjoyed
socializing with friends and travelling. In particular, they enjoyed going on
camping trips every summer. The Plaintiff usually drove, organized the bulk of
the camping supplies, and would set up the tent. She said she knew when she met
him that one day they would marry and while they had disagreements like
everyone, they would get resolved.

[72]        
Turning to 2009, Ms. Pike recalled that her husband went to a
chiropractor in June for an adjustment. She did not recall that he missed
baseball or work around that time. He said the adjustment worked and he was
“fine.”

[73]        
Ms. Pike recalled that the Plaintiff took time off work after the
accident. He rested a lot, had headaches, suffered from sleeplessness, back and
neck pain, and was really tired and really down. He was “deteriorating big
time” and started getting depressed and angry. His hip and back were bothering
him and he started to limp. His hip would “catch and click in and out” and he
had trouble bending. The medications seemed to make him sweat. His mood was
“really grumpy, irritable” and he would pick fights. He was quick to take
offence and reacted by getting mad and responding angrily. He seemed to feel
that everyone was against him. If she drove he would backseat drive. On
occasion he slammed his hand on the dash or pulled on the steering wheel,
telling her to stop or watch out. She said that counselling had been helpful
and that he does drive now.

[74]        
After the operation on his left hip in 2010, Ms. Pike said her
husband was ok for about a month and then his hip started deteriorating again
and it did not really work. It took him a long time to recover from the
Birmingham resurfacing surgery in 2012, which “worked a little”. However, his left
hip was and is still “clicking” in and out and catching, and he continues to be
in pain. While he was recovering he needed help as he was bedridden for a while
with ice packs, needing to pee into a bottle she emptied, and had to have his
meals and drinks brought to him. Showering him required the rental of a shower
chair from the Red Cross, along with a new shower head, crutches, a walker and
a cane. Ms. Pike was quick to point out that her husband is not using
those items now.

[75]        
In the last year Ms. Pike said her husband has a bit of a limp on
his left side, that he is stiff and when he is bending, he looks stiff. This is
very different from how he was before the accident when he could bend and as a
plumber he “could move”, whereas now he cannot.

[76]        
Ms. Pike says that since the accident she socializes more on her
own. Trips that they have taken together or with others are not the same. The
Plaintiff cannot go on the excursions and do the activities they did before. He
does not go out later in the evening, going to bed instead. On a trip to
Penticton the Plaintiff became quite angry and ruined the trip for her and
likely ruined it for others also. She said that their sex life has suffered and
he feels inadequate. They could not have sex after the surgeries. Ms. Pike
said her attitude towards him has changed. He is angrier now with everything,
and she gets angry with him for being angry. She thought couples’ counselling
would help after he did a meditation retreat by himself.

[77]        
Ms. Pike said her husband’s schooling provides him with a focus and
it seems like he is trying to move on with his life and is a little happier. He
gets sore walking the baby at night and she has to relieve him. While she can get
into the bath with the baby, the Plaintiff cannot. He can, however, carry the
car seat with the baby in it.

[78]        
Ms. Pike has worked as a legal assistant for seven years and a
paralegal for two years. She was cross-examined about her work, which has
included personal injury cases, her knowledge of some substantive law and her understanding
of the issue of causation, which she said is whether the accident caused the
injury. In June 2012, she started working at the law firm of the Plaintiff’s
lawyer. In terms of preparing herself to testify, she said that she had
prepared a time line for herself based on the trips they had taken, but other
than that did not refresh her evidence from anything. She said she always knew
she would be a witness because she is the Plaintiff’s wife.

[79]        
On the day of the accident she recalled that she was frantic when she
went to the emergency department to see her husband. He was lying on a gurney
with his neck immobilized. She recalled that he was in pain, just lying there;
medical staff were about and although they talked, she could not recall if she
asked him where he was hurt, but it seems obvious that she would have done so.
While they were standing outside the emergency department waiting to be picked
up she said they were on the curb by the parking lot. He was complaining about
how he felt. She knew what parts of him hurt but could not recall the
conversation. They both were smoking and the Plaintiff said to her that there
was something wrong with his left hip. She said he was walking, standing and
stretching “all weird”. She admitted that she could not recall his exact words,
but he did say something was wrong with his left hip. She also admitted that
she could not recall if he gestured when he said this. She agreed that it was
only recently that the Plaintiff’s counsel asked her about this and that the
date of the accident was about five and a half years ago.

[80]        
Ms. Pike was also asked about the motor vehicle accident they had a
couple of years ago in the summer. She said they were driving to go camping
following her brother-in-law and she braked and slid into the back of his
vehicle as it was wet. There was minor damage to her car and they paid to get her
brother-in-law’s car fixed. No one was hurt. The Plaintiff was really shaken up,
but she disagreed that he became “more freaked out” after that event.

[81]        
I have carefully considered the content of this witness’s evidence and
the manner in which she testified. She impressed the Court as an honest and
sincere witness and not someone who would concoct her evidence to fit with her
husband’s in relation to his comment to her about his left hip hurting in the
parking lot outside the hospital. She provided some details about where they
were standing and what they were doing that she clearly recalled. In my view,
someone who was making up this aspect of her evidence would have pretended to
have a more precise recollection of the words spoken and would likely have concocted
more regarding their surrounding conversation or her husband’s accompanying
gestures. I also find that it is not at all surprising that she does not recall
details of other conversations with him at the hospital given the circumstances
and the passage of time. It is also understandable given the passage of time
that she remembered the gist of her husband’s comment regarding pain in his
left hip, in light of what subsequently happened to his hip. Implicit in cross-examination
was the suggestion that she was concocting this evidence because she knew that
to claim for injuries they had to be caused by the accident. In my view, as a
well-trained paralegal, she is more likely to appreciate the risks associated
with concocting evidence and the value of witnesses providing their best
recollections of what happened by being frank and honest about what they do or
do not recall. I therefore accept the evidence of Ms. Pike.

Roger Pike – the Plaintiff’s father

[82]        
Roger Pike was 64 years old at the time of trial and works as a
territory manager for a glove manufacturer. He described the many gatherings the
family has that include the Plaintiff. He went to numerous baseball games to
watch his sons play and the family would get together to watch sports events.
He said there was nothing wrong with the Plaintiff before the accident – he was
a good baseball player and took life well, being “happy-go-lucky.” He said his
son and Carly seemed to be a couple “in true love.” He did not see any problems
in their relationship before the accident. However, since the accident his
son’s marriage has been negatively affected by his son’s state of mind. He has
observed that the Plaintiff and Carly do not seem to get along as well as they
did before. They have had disputes and fights in his presence. Mr. Pike
thinks his son is frustrated that he cannot do more to meet Carly’s
expectations.

[83]        
In terms of the Plaintiff’s mood, Mr. Pike said that he is quick to
anger, argumentative and seems “mad against the world.” Numerous times Mr. Pike
has noticed that his son’s mood is low and he seems to feel like his life is
not worth living. He is despondent that he cannot do what he did before. One
instance, at a family barbecue about two years earlier, stands out in
particular. Conversation turned to politics and the Plaintiff took offence and
he started to yell in a vulgar manner like he was having a tantrum. He got up
and stormed out after blaming his family for not understanding his pain,
emotional problems and financial difficulties, leaving everyone stunned in
amazement. About two hours later the Plaintiff phoned and was very distraught.
He apologized profusely and asked for forgiveness.

[84]        
Mr. Pike recalled seeing his son in the first eight weeks after the
accident on average once a week. He generally sees his son once every two
weeks. He saw his son having to constantly move, and noticed that he could not
sit for any prolonged period, and if he did he needed pillows. Then, his son
would stand, pace about, stop, stretch, bend, rotate his neck, and would have
his hand on his hip. In court, Mr. Pike demonstrated as he spoke, his hand
going directly to his left hip and then showing how his son would rotate his
pelvis. Mr. Pike said that his son’s condition in the last year to six
months is “pretty much the same”, with maybe slight improvement.

[85]        
Mr. Pike also has experienced how scared his son is driving in a
vehicle. He said that the Plaintiff hangs onto the handle above the door and
constantly tells him to slow down when he is already going less than the speed
limit, and then slams his foot to the floor like he is hitting the brake. Mr. Pike
took his son along with him on his own work trips in BC on several occasions
about two years prior to trial. He did this to take his son away from his
normal activities and spend some one-on-one time with him, hoping that the
Plaintiff would vent his feelings and it would help him. Mr. Pike recalled
that his son could not sit in the car on these trips for very long and they
would stop about every 45 minutes to an hour, for five to ten minutes, so that
he could stretch and move about.

[86]        
In cross-examination Mr. Pike indicated that there has been a
slight improvement in his son’s condition in terms of him appearing less
uncomfortable. He also said his son’s behaviour that he observed on the
business trips showed the same symptoms he had seen for the last five-and-a-half
years. He recalled that the day of the accident was his own wedding anniversary
and that his son’s hip was bothering him after the accident. In terms of
reviewing the times he saw his son after the accident, week by week, Mr. Pike
said that he could not be certain he saw his son consecutively week after week,
but he did see him once a week or once every two weeks, and while his son did
not complain specifically about his left hip, he was clearly in discomfort. Mr. Pike
surmised this from the way he moved. With regard to Mr. Pike touching his
left hip as opposed to his right hip to demonstrate how his son moved, Mr. Pike
said, “it is just a memory I have.”

[87]        
Mr. Pike came across as a committed family man. He impressed the
Court as an accurate and reliable witness. His recollections of his son’s
behaviour and his observations of how his son’s life had changed since the
accident are entirely credible and infused with the type and level of detail
that an honest witness would recall in relation to events or observations
spanning a period of five-and-a-half years.

Susan Pike – the Plaintiff’s mother

[88]        
Mrs. Pike lives in Port Coquitlam with her husband. She managed
their home and worked in retail for 26 years. The Plaintiff is their son and
they have two other adult children. She said the Plaintiff was a very outgoing
and well-rounded person with a happy-go-lucky attitude. He was very
accomplished athletically. When he was younger he was scouted for the Marlins
baseball team and also for soccer. After he moved from home in his late 20s, the
family stayed in touch and he has remained close to his parents and other
family members. Her family typically has frequent gatherings for special
occasions or just to get together. When the Plaintiff met Carly they developed
a very close relationship.

[89]        
Mrs. Pike recalled seeing the Plaintiff the day after the accident
and she said what she first noticed was in relation to his eyes; he seemed not
to be focusing on what she was saying. He seemed a little placid, and he was
holding an area on his left side, his buttocks and pushing on his left hip and
part of his leg in the groin area. She said, “If I close my eyes I can see it
perfectly.”

[90]        
Mrs. Pike noted that in the first six months after the accident her
son’s physical condition seemed to deteriorate. It was obvious from his facial
expressions that he was in more pain. She said he had never experienced pain
like this before and he had never complained before. She observed that he was
not walking like a normal person as he was leaned over. He could not sit when
he came to their house and would eat standing at the kitchen island. This has
continued up to the month prior to the trial when the family celebrated his 39^th
and his sister’s 40^th birthdays.

[91]        
Mrs. Pike described helping the Plaintiff finish the bathroom
renovation he had started prior to the accident and then was unable to finish.
She and her other son helped to finish it. She also tried to involve the
Plaintiff in preparations for the baby’s room by giving him little tasks he
could do, like dealing with things he could reach, passing her things and doing
some “straight on” painting. She wanted him to focus on what he could do, as
opposed to what he could not. He has told her that he would be better as a
quadriplegic so he did not have to go through the pain, so she does whatever
she can to make him feel that he is still needed. She saw the Plaintiff cry
when he heard he and Carly were having a child, saying he wanted his life back
and that he did not know what he could do. She has tried to encourage him,
saying that there are lots of things he can do that are worth being around for
so he does not want to end his life. Many times he is frustrated about the
things he can no longer do and feels he should be doing.

[92]        
Mrs. Pike observed that her son’s outlook and the way he behaves
towards others has changed dramatically since the accident. She said that she
has never tolerated bad language or behaviour that was insensitive towards
others. Since the accident the Plaintiff has become short-tempered and has
flown into rages, using bad language. He has hurt people’s feelings with his
poor behaviour. She too referred to his flying into a rage out on the back
porch at a family barbecue, using bad language and lashing out at those around
him. She said she did not recognize this person. She feels like she is walking
on egg shells when she is with him and is very careful about what she says.

[93]        
When Mrs. Pike drives the Plaintiff places, as she has with medical
appointments, he is afraid; telling her to slow down, that she did not see a pedestrian
or a particular red light, or has not left enough time to stop. She said he is
always on edge.

[94]        
In the last year Mrs. Pike has observed that her son still holds
his hip, paces almost side to side, or will move forward, lifting his knees up.
His marriage is suffering and at times he and Carly have been on the brink of a
divorce. Mrs. Pike has gone to Carly twice to ask her to be patient in
light of her son’s pain. Now that their child has arrived she observed an
incident when the Plaintiff could not get the car seat into its base. She
pretended it was hard to do this to make it easier on him. What was required
was leaning into the car and applying pressure with a kind of a twist of the
body to the left and the Plaintiff could not do it.

[95]        
In cross-examination Mrs. Pike said she recalled the day of the
accident because it occurred on her anniversary. She saw her son a day later
and then she would see him regularly, at least every two weeks, either in her
home or his. He came to her house within two weeks for dinner and she said
everything in his body ached. He complained and the pain was down his left
side, the area of his left hip and back. She also pointed to the area of his
left groin. She could not say which seemed worse, his back or his hip. Even
though he had been to the doctor, she encouraged him to go and seek answers for
his pain. She encouraged him to get his MRI more quickly. She confirmed that
she lent her son $35,000 to assist him, including helping him pay for a private
MRI that he otherwise said he could not afford. She said that she has not been
repaid to date.

[96]        
Mrs. Pike drove him into Vancouver for his appointments and the
surgery performed by Dr. Gilbart. She recalled helping the Plaintiff put
on his socks after the hip surgery performed by Dr. Duncan. She said the
surgeries were very important to her but keeping track of dates was not, as she
was focused on her son getting better. She helped him recover after both hip
surgeries by doing whatever she could. This included driving him to
physiotherapy appointments. She said she has many memories of her son in pain,
holding the area of his left hip and walking with pain, behaviours that
continue to the present date.

[97]        
Mrs. Pike indicated that it was only in the last six months that
she was asked to try to remember the Plaintiff’s condition immediately after
the accident in 2009. She could not be exact about when the Plaintiff began to
focus more on the area of his left hip, groin and buttocks, but she said it was
after the accident as things like bruises started to heal. He deteriorated in
the first six months after the accident and was focusing more on his left hip, which
seemed to her to be getting worse. What she saw was “Jeff hurting everywhere.”
She said it was gradual at first because he had so many other things going on
and then as those things healed his left hip pain became more pronounced.

[98]        
Mrs. Pike’s testimony is generally confirmatory of the Plaintiff’s symptoms,
pain and deterioration after the accident, although she is not able to be precise
as to timing. In particular, her evidence about when the Plaintiff first had
problems with his left hip is not reliable. It appears that all her
observations over the years have blended together, with a focus on his left hip
or groin problems as they evolved. This is understandable given her day-to-day
involvement in her son’s medical interventions and efforts at rehabilitation.
However, her evidence, like that of a number of the witnesses called by the
Plaintiff, shows that prior to the accident those close to the Plaintiff, who
knew him well and saw him regularly, did not observe him to have prior medical
or psychological problems, physical limitations or significant pain, which is in
stark contrast to what developed after the accident.

Steve Pike – the Plaintiff’s brother

[99]        
Steve Pike is six years younger than the Plaintiff. He said they are
friends and continue to see each other regularly, although less than they did
pre-accident. Before the accident they would see each other almost daily doing
various sports, including soccer, baseball, and in the course of playing
together on the competitive fast ball team – the Dukes. Mr. Pike said
during those times his brother was very outgoing and active at parties. He was
social, a nice person to deal with and would “give you the shirt off his back
type of thing”. He enjoyed meeting new people. When the Plaintiff met Carly she
was incorporated into their social group, baseball and the family. He said
pre-accident their relationship looked like it was “going great.”

[100]     After the
accident Mr. Pike observed that his brother was in a lot of pain and
discomfort. His whole life changed. He was always stretching and uncomfortable
and they stopped doing “the friends stuff” together, like kicking the ball
around. He could not take the Plaintiff to the occasional Canucks game as he
did before because the Plaintiff finds the seats too uncomfortable and cannot
stand for three hours.

[101]     In the
last year Mr. Pike has observed that his brother still appears to have
physical problems. He appears to be in pain as he is always trying to figure
out a different position, tries something different and then pays for it with
so much pain. The Plaintiff does not want people over to his house as he cannot
be a good host. When Carly and the Plaintiff come to family gatherings they
just come for the meal at 4:30 or 5:00 and leave by 7:00 p.m. The Plaintiff makes
an effort to come to family dinners but he is uncomfortable. He has to go
upstairs to use a higher toilet than the one on the main floor. They found him
a good chair to sit in at family dinners but prior to that, he ate standing at
the kitchen island.

[102]     Mr. Pike
has noticed a big change in his brother’s personality since the accident. The
Plaintiff is very troubled, has a “big temper”, no patience and flies off the
handle easily. Mr. Pike said he cannot debate issues with him like they
used to because it is not good for the Plaintiff, so Mr. Pike just
concedes the point and moves on. He said his brother acts out all the time and
then will apologize, although he is trying to work on it now. Whereas before
the accident, Mr. Pike did things with his brother almost every day, now
he drops in once or twice a week for a short visit and they sit and chat. Driving
with the Plaintiff is a challenge. Mr. Pike said there is a 100 per cent
change from how his brother was before the accident. Mr. Pike said he has
to be way more cautious and leave extra room when pulling up to other vehicles,
or the Plaintiff gets very agitated and will give instructions.

[103]     Mr. Pike
said that he has travelled with the Plaintiff and Carly. Their trip to the
Dominican Republic in 2006 was fantastic. They did lots of activities and
enjoyed partying together. In contrast, during their trip to the Mayan Riviera
in Mexico in 2013 the Plaintiff behaved very differently. He was in constant
pain and went to bed early while the others went out to the disco. Someone had
to stay back with him and Mr. Pike said he spent two nights lying down
with his brother on that trip, watching television. They did not go on any
adventures outside the resort, as they had done previously. Mr. Pike also
said that his brother and Carly’s marriage has seemed “really rocky” since the
accident as both their temperaments are “off the charts.”

[104]     Mr. Pike
was also asked about the incident when Carly hit his vehicle from behind when
he stopped on wet roads on the way to go camping. He said there were some
scratches on her car and no damage to his, except some repairs to his tow hitch
and no one was injured. In particular, his brother was not injured any more
than he already was.

[105]     In
cross-examination, Mr. Pike was also asked about this incident. He was not
sure if they went through ICBC and said the tow hitch on his vehicle was bent
to the side. He said it was very minor damage and it was fixed. He was not sure
about when this happened but based on when he and his wife divorced, he thought
it was in 2010 or 2011. In terms of how this incident affected his brother, Mr. Pike
said that the Plaintiff was “kinda freaked out” and Mr. Pike knew it would
bother him because of the accident that is the subject of the present case, so Mr. Pike’s
attitude towards it was “don’t worry about it.” It was not a conversation, but
just a comment and then the matter was dropped. Mr. Pike could not say if
it affected his brother psychologically.

[106]     Mr. Pike
continues to play fast ball with the Dukes, saying that the 2015 season will be
his 15^th year. He described the Plaintiff as a great ball player and
when asked about the Plaintiff’s season record in terms of stealing 99 bases,
he agreed with the proposition that even a good base stealer gets thrown out 15
to 20 times a season, so 99 stolen bases likely represented a minimum of 115 attempts,
and that 90 percent of the time the player slides in. He described the manner
in which a ball player steals bases by pushing off from the base being left and
running as fast as he can to then slide into the base being stolen. He agreed
that when his brother slid into a base that it was feet first, then ankle,
knee, and hip and he said a person slides on the outside of their thigh. He
said it was about 50/50 sliding on your legs, and when you do a “pop slide” it
is not so much on your hip but your thigh. When it was put to him that in the
season (a player with such a record) might slide into a base 65 times, Mr. Pike
also indicated that about half the time when they steal a base they slide in as
sometimes the runner runs in, or gets thrown out.

[107]     The Court
found Mr. Pike to be a generally reliable and credible witness. To a large
degree his observations regarding the changes in the Plaintiff and his life
since the accident are borne out by the evidence of other witnesses. Mr. Pike
did, however, “back-pedal” on his evidence as to the frequency a player may
slide in to steal a base to achieve such a base-stealing record, once he
appreciated the direction of the cross-examination.

Leanne Kerr – a friend

[108]     Ms. Kerr
has known the Plaintiff for 13 years and she is friends with Mrs. Pike.
Prior to the accident in 2009 she would see them both socially every few weeks.
The Plaintiff was happy, even-tempered and physically fine before the accident.
She went to baseball games and he seemed fine. She has continued to see the
Plaintiff after the accident and he stretches a lot and grabs his hip. She sees
him less often as he does not come out as much. He is short tempered now and
not so happy. Ms. Kerr has observed that the Plaintiff and Carly do not
get along as well as they did before the accident. She has been with them on
several trips post-accident and during the Penticton camping trip she said they
argued the whole time.

Lynn Wilson – an acquaintance

[109]     Ms. Wilson
came to know the Plaintiff through Ms. Kerr. She is also a friend of the
Plaintiff’s wife. Since the Plaintiff and Carly have lived together she has
seen them every week or every second week, unless she was working out of town.

[110]     Prior to
the accident she said the Plaintiff was very involved in baseball. He worked
full-time and had no physical constraints. He was relaxed, outgoing, friendly
and generally happy.

[111]     After the
accident he was at home a lot more, moving slowly and shuffling his weight from
one leg to another. Although she did not recall the date, she visited his home
during the first six months after the accident. She saw the physical changes in
the Plaintiff. He would be holding parts of his body or making facial
expressions. The last year has been like the previous years for him. He is not
going out a lot, still uses a cushion to sit on and at home can only sit in
certain chairs. His personality and his attitude have changed. He is not as
happy as he used to be, seems to be a bit depressed, has more of a temper, and
angers easily. She recalled that she went on a trip to Penticton with the
Plaintiff and Carly and they had a bad argument on the first day that set a bad
tone for the rest of the trip for those around them. She has gone out for the
evening on occasion with just Carly.

James Costa – a friend

[112]     Mr. Costa
is 39 years old and has known the Plaintiff since they were both about 15 years
old. In the years just prior to the accident they would play touch football and
soccer. He said the Plaintiff was a very physically fit person, and was very
outgoing, friendly and social. He could be counted on to help his friends.

[113]     Mr. Costa
indicated that the Plaintiff had asked him about the details of running a
business given Mr. Costa’s background in managing businesses. Mr. Costa
said that the Plaintiff was not seeking his advice so much as telling him his
aspirations. Mr. Costa was not sure when their conversations took place
but said there were at least five to seven conversations that occurred a long
time ago. The Plaintiff was a journeyman plumber at the time and was teaching
another employee how to do the job. Mr. Costa recalled that the Plaintiff
said he could run the business better than his boss and one day he would.

[114]     Mr. Costa
was driving directly behind the Plaintiff when the accident occurred. He was
planning to turn right at the intersection, whereas the Plaintiff was driving
straight through on a solid green light. Mr. Costa saw a big, older model
BMW “cruising” through what was a red light for it. It struck the Plaintiff’s
vehicle, which was spun off to the side. The BMW careened off the curb and
ended up on the opposite side of the road on a church lawn.

[115]     Mr. Costa
said he approached the driver’s side of the Plaintiff’s vehicle, which had the
window open. He called out to the Plaintiff who seemed dazed and not coherent. Mr. Costa
said he had to repeat himself several times and shook the Plaintiff on the
shoulder, telling him that he had been in an accident and needed to get out of
his vehicle. He opened the door, which was somewhat stuck, reached over and
undid the Plaintiff’s seat belt, and using his arm steadied the Plaintiff and
walked him over to the lawn. Mr. Costa asked someone to call 9-1-1 and emergency
health services arrived and tended to the Plaintiff and the driver of the BMW.

[116]     Mr. Costa
said that he is still good friends with the Plaintiff although they are older
now and both have kids. Sometimes Mr. Costa will stop in and visit the
Plaintiff on his way home from work or bring him lunch. Mr. Costa recalled
that in the first couple of years after the accident the Plaintiff did not move
much at all, lying in his bed with his legs elevated or reclining in a chair.
He could not stay in one position too long and would shift from lying to
standing.

[117]     In the
past year Mr. Costa said that he has not seen the Plaintiff do any
physical activity. He can stand and sit. Then he will twitch like he is
uncomfortable, and if asked what is wrong, says he has a pain in his hip. Mr. Costa
had observed this even as recently as the day he testified. He has noticed that
the Plaintiff can be a little quick tempered and if you say the wrong thing he
will let you know. His depression seems to be less pronounced, but he still
gets down about the things he used to do that he can no longer do.

[118]     Mr. Costa
impressed the Court as an honest and reliable witness and the Court accepts his
evidence.

Alex Szabo – his baseball coach

[119]     Mr. Szabo
is the coach of the senior men’s fast ball team, the Coquitlam Dukes. He
explained that this is not a “beer league” baseball team. Rather their level of
play is third, behind the national and inter-provincial teams. The Plaintiff
played on that team for six to eight years, ending after the 2009 season. He
said the Plaintiff was the team’s starting center fielder, a highly rated
batter who could throw a fast ball pitch at 90 plus miles per hour and was an
excellent fielder because of how he could run. He was excellent at stealing
bases. In fact, the Plaintiff still holds the all-time record for the most stolen
bases. Asked about the Plaintiff’s record of 99 stolen bases, he agreed that it
would represent perhaps 120 attempts and 85 percent of the time the player is
sliding into second or third base. Exhibit 2, Tab 3 contains the baseball
records of the Dukes. In 2006 and 2007 the Plaintiff had the best batting
average. Looking at the records overall, Mr. Szabo said the Plaintiff is
the best overall player in the course of 23 years. In terms of the Plaintiff
being scouted when he was younger and playing hard ball with the Coquitlam
Reds, Mr. Szabo said that the Plaintiff was a far superior player to
someone he knew who was drafted to a major league team in Texas.

[120]     According
to Mr. Szabo, depending on his physical shape or other commitments, the
Plaintiff could have played well into his 40s or past that into his 50s, as
some players do. But since 2009, the Plaintiff has not put on a glove or swung
a bat. He has not shown any interest in coaching, although he does come out to watch
a good number of games per season.

[121]     The Court
finds Mr. Szabo to be a reliable and honest witness and accepts his
testimony.

Dr. Jennifer Fyfe – the
Plaintiff’s family doctor

[122]     Dr. Fyfe
is the Plaintiff’s general practitioner. She first saw him three days after the
accident on August 21, 2009, and he has continued to be her patient since then.
In her direct examination Dr. Fyfe touched briefly on her notes of some of
his visits and reviewed a list of the medications the Plaintiff has been
prescribed to address his pain and other problems since the accident. With
regard to his current medications, Cymbalta and Nucynta, the first is an
anti-depressant with pain-relieving properties and the second is a newer
narcotic pain reliever. Her estimate was that the two doses of Cymbalta per day
he takes would cost about $8, and although she was not familiar with the cost
of Nucynta, she estimated that it would cost in the range of $3 to $5 per day.

[123]     In
cross-examination, counsel reviewed Dr. Fyfe’s notes with her. When she
first saw the Plaintiff on August 21, 2009, she noted that the Plaintiff had
been in an accident, “felt disoriented, neck hurt, tingling in hands” and went
to the hospital in an ambulance. She noted “low back, neck stiff and sore –
improving headaches bad now resolving mid back sore hands feel a bit weak chest
and belly ok bruise left knee feels a bit ‘foggy’. Seems normal.”

[124]     On August
25, 2009, Dr. Fyfe saw the Plaintiff for a follow up in relation to the
accident. She noted that he was complaining about pain in the area of his first
lumbar vertebra, between his shoulder blades and sometimes up to his neck,
along with occasional headaches. Overall she noted he was improving. She
referred him for massage, which usually occurs for soft tissue injuries.

[125]     On
September 11, 2009, when she saw him next she noted that he had returned to
work doing light duties, and reported to her that he was still pretty sore in
his mid back; the area of his bilateral paraspinal muscles was the worst. His
lower back and neck were still sore, but not as bad as his mid back. She made note
of the eight-and-a-half days he had worked in September up to that point. She
indicated in cross-examination that she could not be specific that it was the
first lumbar vertebra that was painful for him at that time, and if his area of
pain was broader than before she said she would not necessarily have noted
that.

[126]     Dr. Fyfe
next saw the Plaintiff on October 23, 2009, when he reported that he was
“[a]lot better”, although he was still experiencing stiffness between his
shoulder blades every day and pain in his left low back that radiated laterally
towards his hip. She interpreted her notes as referring to pain in his left
lower back that wrapped around to the outside of the area of his left hip. At
that point she referred him to physiotherapy twice a week for two months, and
massage therapy once a week for eight weeks. Dr. Fyfe agreed on
cross-examination that up to this point the Plaintiff had not referred to groin
pain or a sharp pain in his groin that she recalled, and had he done so, she
most likely would have noted it. The first time he mentioned his left hip
according to Dr. Fyfe was on October 23, 2009.

[127]     Dr. Fyfe
was not aware that the Plaintiff had fallen on November 2, 2009, but she got a
copy of the x-ray of his left hip ordered by a doctor at a walk-in clinic on
November 3, 2009. She reviewed the results of the x-ray with the Plaintiff when
he attended her office on November 7, 2009, and sent him for a MRI. His next
appointment was November 30, 2009, and Dr. Fyfe noted that the Plaintiff’s
left hip and lower back were getting worse. She made similar notes when he
attended on December 16, 2009.

[128]     When Dr. Fyfe
saw the Plaintiff on January 14, 2010, she noted that in the interim he had
been to the hospital on an emergency basis for increased pain, his low back was
still bad and he was walking with a stiff limp. He still needed to have the
MRI. On January 18, 2010, at his next appointment, she noted that the pain in
his hip had increased and he was barely comfortable at rest. He had pain in his
low back on both sides and she prescribed percocet. On February 8, 2010, Dr. Fyfe
noted that he had a tear in his hip and would need surgery. On February 15,
2010, when the Plaintiff attended, Dr. Fyfe took note of his left hip and
the fact that he had pain in his right low back at L4/5, radiating from his
lumbar area to his groin and he was very uncomfortable. She renewed the percocet
prescription.

[129]     The
Plaintiff continued to see Dr. Fyfe regularly. She first noted that he was
depressed on March 25, 2010, which was the first sign of psychological
problems. She also noted on May 20, 2010, which was after Dr. Gilbart’s
surgery, that the Plaintiff still had “PTSD like” symptoms around driving and
had been “blowing up” and noted that he wanted to see someone. Over the appointments
that followed, Dr. Fyfe monitored the Plaintiff, helped him with pain,
therapies and referrals, and noted her observations and the various things the
Plaintiff said to her.

[130]    
Dr. Fyfe was a reliable historian of events that she
observed and noted and I accept her evidence.

Lane van de Waal – the Plaintiff’s boss
in the plumbing business

[131]     Mr. van
de Waal is a plumbing contractor and it is his business, Preferred Plumbing in
Coquitlam that employed the Plaintiff. He testified that he has known the Plaintiff
since he was 12 years old and that the Plaintiff worked for him for seven
years, first as an apprentice and then as a plumber. He described the Plaintiff
as a very good worker. He said that plumbing involves working in tight, small
spaces under cabinets, in behind hot water tanks and into crawl spaces. He also
said that it can be very heavy work, for example installing cast iron pipes or
doing ladder work in commercial jobs, manipulating a new toilet into place or
switching a hot water tank.

[132]     Mr. van
de Waal recalled that the first day the Plaintiff came into work after the
accident he was in pain. Then he basically deteriorated “down all the way” to
the point where he could not do his job very well. Mr. van de Waal
recognized that the Plaintiff was trying to struggle through the pain and do
what he could, because Mr. van de Waal himself has had back issues. Each
work day after the accident when they would meet up early in the morning at the
wholesaler’s, Mr. van de Waal said he could see the Plaintiff was in a lot
of pain.

[133]     In terms
of the Plaintiff missing days of work in the several months prior to the
accident, Mr. van de Waal indicated while he was preparing the document
(Exhibit 4) that indicates what days the Plaintiff worked after the accident,
the tasks he did and the hours spent, he also looked at the months prior to the
accident. He reported that the Plaintiff had one day of holidays booked in May
2009 and did not miss any days in June 2009. He was present every day during
July 2009, while missing one day of work in August 2009. Prior to the accident Mr. van
de Waal said that the Plaintiff worked with an apprentice when the job
warranted it, as he typically sent the apprentice to assist the plumbers with
the biggest, most labour-intensive jobs. After the accident, he had the
apprentice with the Plaintiff more to help him out, as opposed to placing the
apprentice with the other journeyman plumber in the business, his son Troy van
de Waal.

[134]     In
cross-examination Mr. van de Waal was not shaken as to his record keeping.
He agreed that the Plaintiff was of good character, fastidious and
conscientious, and that he liked him personally and respected him
professionally. He agreed that the Plaintiff still had those character traits.
With regard to the Plaintiff’s return to work after the accident in September
2009, Mr. van de Waal agreed that he did not pressure him to return, but
said the Plaintiff knew they were busy and he wanted to get back and help out.
The Plaintiff felt he could handle the job but he knew he would have the help
of the apprentice. He also agreed that between September and November 2009 the
Plaintiff did go out on plumbing jobs on his own. Mr. van de Waal said he
would have asked the Plaintiff first if he could handle a particular job, and
that he would not have sent him out on a job that he could not do.

[135]     Mr. van
de Waal indicated that when the Plaintiff came back to work after the accident
in September 2009, if he was doing jobs with the apprentice, Chris, then Chris
would drive. Otherwise the Plaintiff drove himself to and from jobs. When the
Plaintiff indicated to him at the end of November 2009 that he had to stop
work, Mr. van de Waal confirmed that he had no complaints about the work
the Plaintiff had done. He said it was hard to say if the Plaintiff was taking
longer to do the work, but the bills did not appear unduly high.

[136]     Mr. van
de Waal impressed the Court as a solid witness in all respects and I accept his
evidence.

Troy van de Waal – the Plaintiff’s
friend and co-worker

[137]     Troy van
de Waal is 38 years old and a plumber. He works in his father’s business,
Preferred Plumbing. He met the Plaintiff in Grade 7 and they have remained
friends since. It was through Troy that the Plaintiff came to work as a
plumber, starting first as an apprentice to him in 2002.

[138]     Mr. van
de Waal said Preferred Plumbing does small commercial jobs, restoration and
renovation work as well as some service work. Before the accident Mr. van
de Waal said the Plaintiff was a good worker. He had no trouble doing the job,
was conscientious and paid attention to detail.

[139]     After the
accident Mr. van de Waal said the Plaintiff had a lot of trouble lifting
things and had trouble standing if he knelt down. He noticed that each morning
when they met up at the wholesaler’s the Plaintiff was stretching, something he
had not done before. He was always sore; moving like he had pain. He was also
crankier and moodier and had less patience.

[140]     In
cross-examination Mr. van de Waal indicated that eventually he will take
over his father’s business. Mr. van de Waal said that the apprentice,
Chris, assisted the Plaintiff more than he assisted him. He said the Plaintiff
would drive his van to the jobs. He did not recall there being any complaints
about the Plaintiff’s jobs after the accident and the Plaintiff continued to be
a conscientious and self-motivated worker. He did not recall saying to the
Plaintiff that the two of them should become partners in his father’s business.

[141]     Mr. van
de Waal’s testimony was brief and to the point. I do not find the fact that he
did not recall discussing becoming partners with the Plaintiff in his father’s
business to be definitive in terms of it never occurring. The Plaintiff and
Troy van de Waal have been friends for decades and it would not be unusual for
the two of them as journeymen plumbers to aspire to a future partnership in
their own business.

Chris Hodgson – the Plaintiff’s
apprentice

[142]     Mr. Hodgson
is 36 years old. He works as a marine mechanic. He worked for Preferred
Plumbing as an apprentice. He had worked with the Plaintiff for a year or two
before the accident. He described the Plaintiff as “my journeyman plumber.” Their
relationship was that of teacher and student. They worked on heavy hot water
tanks, fancier toilets, tubs and big cast iron sinks. He described installing a
sink as involving a lot of lying on your back or down on your knees and working
over your head. They installed piping overhead from ladders and a lot of piping
at eye level. Mr. Hodgson said that the Plaintiff was a very good worker,
had no problems doing the work, and was “happy-go-lucky” and easy to get along
with. Mr. Hodgson said that the Plaintiff was “not a hard ass but the job
had to be done right.”

[143]     Mr. Hodgson
recalled that after the accident there was a change in the Plaintiff. He was
always bent at the hip, had his hands down at his knees, and he could not do
what he did before. Mr. Hodgson recalled this because he was required to
do more himself. He said that the Plaintiff seemed very moody, like he was mad
at the world, and he became hard to have a conversation with. Whereas before
the accident the Plaintiff always drove the van, afterwards Mr. Hodgson
drove and he would go and pick the Plaintiff up. Before the accident the
Plaintiff would pack his own tools, whereas afterwards Mr. Hodgson packed
both sets of tools or the Plaintiff put his on the dolly.

[144]     On
cross-examination Mr. Hodgson admitted that he did not recall the date of
the accident or the year. He thought the Plaintiff was off work for one to two
weeks. Mr. Hodgson agreed that before the accident they did not do all
their jobs together and estimated that he would be with the Plaintiff about
half the time, or maybe up to 60 to 75 percent of the time; after the accident,
Mr. Hodgson said he thought it was closer to 95 or almost 100 percent of
the time. He could not say how long this continued but thought it was “pretty
much until Jeff left us.” He indicated that after the accident he usually did
the work that involved being on one’s knees or lying on one’s side or back, as
the Plaintiff would have too hard a time doing those things. He said that after
the accident they still got their jobs done correctly. He agreed that the
Plaintiff was a hard worker and after the accident he was still fastidious and
a perfectionist.

[145]     Mr. Hodgson’s
memory as to dates and the exact amounts of time he worked with the Plaintiff
was understandably vague. However, his observations about working with the
Plaintiff before and after the accident were clear and I accept his evidence in
that regard.

Don Miyazaki – executive director of
the Canadian Professional Golfers’ Assoc.

[146]     Mr. Miyazaki
testified about the business of golf. As the executive director of the CPGA, he
oversees programs for its members, including education, tournaments, buying
shows, member engagement, and other activities aimed at “growing the game of
golf.” He said there are approximately 300 golf courses and driving ranges in
BC and members of the CPGA work at about 200 of them. He explained the
difference between a professional golfer (the ones seen on television) and a
golf professional, who is someone who instructs and “grows the game.” His
association is associated with the latter, and there are varying degrees of
training and experience it recognizes – from an apprentice or candidate for
membership to an executive professional. At a golf course an associate
professional typically reports to the head professional. With regard to the
approximately 200 head professional positions in BC, he indicated that there is
less movement from those positions as compared to the associate professionals.
To become a member of the CPGA a person has to be 18 years old, have completed
high school, be employed in the golf industry and then pass a playing ability
test, achieving a certain score in a set number of tournaments. In a recent
tournament with 22 applicants, ten passed and one was below par. Mr. Miyazaki
was referred to two entry level golf jobs, one was a position to start golfers
on time and the other was in golf retail. They had posted salaries of $15/hr
and $16/hr respectively.

[147]     In cross
examination, Mr. Miyazaki was asked various questions about the golf
industry. With regard to the game itself, he explained that on an 18 hole
course a player plays 18 t-shots and then once on the fairway the next step is
to get the ball to the green, where typically it takes two putts to put the
ball in the hole. He said that even the pros say putting is 40 percent of the
game, and it is a smaller movement with the feet kept still. This description
of the sport was presumably directed towards the Plaintiff still being able to
achieve a reasonable golf score if he focused on putting (which would put less
strain on his left hip and his low back), even if his distance shots were
impaired.

[148]     Mr. Miyazaki’s
testimony was factual and the Court accepts it.

The Experts

Dr. Michael Gilbart – an
orthopaedic surgeon

[149]     Dr. Gilbart
was called by the Plaintiff. He is an orthopaedic surgeon qualified to give
expert opinion evidence in matters of orthopaedics, with a focus on disorders
of the shoulder, knee, hip and elbow. He was the first hip specialist to assess
and treat the Plaintiff’s left hip. Dr. Gilbart’s credentials and training
are extensive and he is clearly a highly skilled surgeon in relation to hips. When
asked to assess a patient, he decides whether arthroscopic surgery is the best
form of joint reconstructive surgery. Dr. Gilbart was a treating surgeon
in this case as he performed arthroscopic surgery on the Plaintiff’s left hip
on April 6, 2010.

[150]    
Dr. Gilbart’s diagnosis with regard to the Plaintiff is set out in
his report, dated December 3, 2014, as follows:

1.         Musculoligamentous cervical, thoracic and lumbar
strain.

2.         Bilateral hip osteoarthritis, osteophytes femoral
head-neck junction.

3.         Bilateral knee patellofemoral pain.

Temporally, the condition of Mr. Pike’s neck, mid back,
low back pain, bilateral hip pain, and bilateral knee pain appears to be
related to the motor vehicle accident of August 18, 2009.

Mr. Pike was functioning at
a high level prior to this motor vehicle accident and stated that he was not
having any symptoms in the regions noted above.

[151]     Dr. Gilbart
stated the following in his report in relation to the Plaintiff’s neck, and mid
and low back:

In my opinion, Mr. Pike suffered from
musculoligamentous, cervical, thoracic and lumbar strain during the August 18,
2009 motor vehicle accident. He still has pain worse in the right side of his
low back. He also has some neck pain and tightness. His pain in the midback has
improved, but he still does have some midback pain that is made worse with
activity.

His MRI of the lumbar spine indicated some diffuse disc space
narrowing at L4 – 5 and mild to moderate facet arthropathy. At L5 – SI he had
bilateral pars defects (spondylolysis) with surrounding degenerative change.
His degenerative change in the lumbar spine and spondylolysis was probably
present prior to this accident. He still continues to experience some pain in
the low back more on the right than on the left side. It is an aching type
pain. This radiates into the SI joint region.

With respect to his mechanical
low back pain it is unlikely that any surgical intervention will be warranted.
Continued conservative management would be appropriate. Depending on the source
of his pain, he may be a candidate for some selective injections for his low
back.

[152]     Dr. Gilbart
reported the following in relation to the Plaintiff’s left and right hips, and
the arthroscopic surgery he performed on the Plaintiff’s left hip on April 6,
2010:

Mr. Pike had significant left hip pain following this
August 18, 2009 motor vehicle accident. He has had pain in his right hip and
groin also, although it has not been as significant as his left hip. His
imaging revealed evidence of some mild thinning of the articular cartilage
bilaterally (mild osteoarthritis), and some osteophytes at the anterolateral
femoral head-neck junction.

It is probable that his mild osteoarthritis and his CAM-type
femoroacetabular impingement and collar osteophytes were present prior to the
accident. He was not symptomatic in either hip prior to this accident however.
Certainly this motor vehicle accident rendered him symptomatic, and resulted in
his need for hip surgeries. Some of his pain is probably coming from the joint
(intraarticular), and some of the pain is coming from outside the joint
(extraarticular).

Due to the severity of his left hip pain, and the fact that
he was not improving with conservative measures, we decided to proceed with a
left hip arthroscopy on April 6, 2010. At the time of this surgery he had
evidence of grade 2 to 3 chondrosis in the central aspect of his femoral head.
On the acetabulum he had extensive chondral delamination with grade 4
chondrosis, including areas of full thickness chondral loss. This was indicative
of chondral damage and osteoarthritis. He had evidence of osteophytes on the
femoral head-neck junction and CAM-type femoral acetabular impingement. He had
some tearing within the anterior substance of his labrum. Although this was
treated arthroscopically, he still had ongoing discomfort and pain in the
region of his left hip. The surgery did not relieve his pain. This was probably
due to the full-thickness cartilage loss that was present in the superolateral
aspect of his acetabulum.

Mr. Pike saw Dr. Clive Duncan August 26, 2011 for
his severe left hip pain. A decision was made to proceed with a left hip
Birmingham resurfacing arthroplasty by Dr. Duncan in April 2012. Mr. Pike
stated that this provided him approximately 50% improvement in his left hip
pain, although he still has aching pain and discomfort and has intermittent
episodes of sharp pain.

Mr. Pike’s right hip symptoms are similar to the left in
that he has occasional catching and clicking. His MRI of the right hip
performed 03/07/11 indicates the presence of moderate degenerative changes
within the right hip with collar osteophytes around the femoral head/neck
junction. He has irregularity and marginal osteophyte formation of the
superolateral margin at the acetabulum. He has aching pain in the right hip. He
has occasional episodes of sharp pain. This right hip pain is not as severe as
his left. With respect to his right hip he has some similar pathology,
just not as severe with the left hip. The accident served to render this
previously asymptomatic condition symptomatic. If his right hip symptoms worsen
in the future he may require a right hip arthroplasty also. It is probable that
he will notice some slow progression in his degenerative changes in the future,
and therefore some progression in his symptoms of pain, stiffness and
discomfort in the future.

Given that Mr. Pike is currently only 38 years old,
it is probable that he will require further surgery on the left hip in the
future. He will probably require at least one revision total hip arthroplasty
procedure during his lifetime, and possibly more. Each revision hip
arthroplasty carries some risk of infection, nerve injury, fracture, prosthetic
loosening or dislocation, or ongoing pain.

[Emphasis added.]

[153]     Dr. Gilbart
also noted that the Plaintiff has experienced pain in his knees since the
accident, but that the pain is currently not severe.

[154]     Overall, Dr. Gilbart’s
prognosis for the Plaintiff is not positive:

Mr. Pike continues to experience some neck, mid, low
back pain, and left greater than right hip pain following this August 18, 2009
accident. He will probably continue to experience pain, particularly on the
right side of his low back and in his left hip in the future. I would not
anticipate that this pain will improve in the future. He will probably require
some further revision left hip surgery in the future. He may require some right
hip surgery if his osteoarthritis progresses. He may require some intermittent
physiotherapy and massage therapy in the future for exacerbations in his
symptoms of pain. The overall prognosis for significant further clinical
improvement is guarded.

[Emphasis added.]

[155]      
Dr. Gilbart explained surgeries sometimes performed on
problematic hips, aside from the arthroscopic surgery he performed on the
Plaintiff’s left hip; namely, a Birmingham resurfacing and a full hip
replacement. With a Birmingham resurfacing the femoral cartilage and surface
layer of bone are replaced with a metal cap and a metal socket is placed on the
acetabular socket side of the hip joint. With a full hip replacement the entire
ball of the femoral head is removed and a metal stem is placed down the femur,
with a metal ball on top that articulates with the a cup, usually made of a
high density polyethylene that is installed on the acetabular or socket side of
the hip joint. A Birmingham resurfacing preserves more bone as it involves
minimal bone resection.

[156]     As he
stated in his report, Dr. Gilbart indicated that some of the Plaintiff’s
pain is likely coming from the left hip joint, which he called intra-articular,
and some of it is coming from outside the hip joint, and therefore is
extra-articular. Dr. Gilbart was asked to explain this and testified that
part of the reason he came to this conclusion was because the Plaintiff has not
had full resolution of his hip symptoms with hip surgery.

[157]     In
cross-examination Dr. Gilbart confirmed that the Plaintiff denied any
pre-existing history and pain in the neck, mid back, low back, left or right
hips or knees prior to the accident, and also indicated he had received
chiropractic treatment at age 16 for low back pain that eventually resolved,
and had seen a chiropractor in June 2009 for left upper back pain after
sleeping in an unusual position that resolved after chiropractic treatment.
When shown the chiropractic diagram from June 8, 2009, Dr. Gilbart
interpreted it as showing pain in the lower right buttock and not the right
hip, and did not regard it to be contrary to what the Plaintiff had told him
about pain in his left upper back after sleeping. Asked if he did not include
the records from Dr. Olson, the chiropractor, in his report because he did
not review it, Dr. Gilbart said that he did not know if he reviewed it,
but agreed that he did not include it. Dr. Gilbart agreed that the
Plaintiff apparently reported to the chiropractor that he had a three-week
history of back pain that prevented him from doing or enjoying anything. Dr. Gilbart
also agreed that this was something he would normally include in his report as
a pre-existing issue. He agreed that he did not assess the Plaintiff
immediately after the accident and that it was the Plaintiff who reported to
him that the Plaintiff “had neck pain, mid-back pain, low back pain, left hip
pain, right hip pain and right knee greater than left knee pain from the time
of the motor vehicle accident”, as he noted in his report.

[158]     Dr. Gilbart
first saw the Plaintiff on March 19, 2010, when he was asked by the treating
physician to see the Plaintiff for his left hip problem. He agreed that he did
not canvas the Plaintiff’s history of pain in the other areas following the
accident until he was asked to give a medical-legal report and assessed the
Plaintiff for follow up on December 3, 2014. Dr. Gilbart indicated that as
he was treating the Plaintiff for his left hip in 2010 and 2011, he was not
documenting the Plaintiff’s pain in other parts of his body. As to the list of
areas where the Plaintiff reported to him in December 2014 that he had felt
pain “from the time of the accident,” Dr. Gilbart said that it “would be
very difficult for any patient to do over a period of three to four years” and
he did not approach such accounts “trying to trip a patient up and say, you
know, what you are telling me now doesn’t match with every single record I have.”
Dr. Gilbart did agree that it was important for him to have some idea of
the temporal connection between the Plaintiff’s complaints and the accident.

[159]    
Dr. Gilbart indicated that when he stated in his handwritten consultation
note of March 19, 2010, that within the first two months after the accident the
Plaintiff “noted persistent pain in the region of his left pelvis and hip
region”, to him left hip pain means groin pain. Dr. Gilbart said:

Well, when you’re looking at my handwritten notes in a
clinical environment, then — and saying that just because these handwritten
notes are what they are, where I say “noted left hip pain”, that that doesn’t
mean he had any groin pain, like, because not quite accurate in his
characterization. If I — if I said left hip pain and I didn’t mean in the
groin region, I don’t know where else I would have been referring to, because
that’s where hip pain typically is. I wouldn’t have been referring to his
thigh, and I wouldn’t have been referring to his buttock, and I wouldn’t have
been referring to his low back. When someone says they have pain in the hip or
the groin region, I understand patients don’t necessarily know where their pain
is coming from. But the most common place for that to be present is in the
groin region.

(Transcript, p. 22, ll.
14-30)

[160]     Dr. Gilbart
was asked in cross-examination about his opinion, as stated in his
medical-legal report, that “[i]t is probable that his mild osteoarthritis and
cam-type femoro-acetabular impingement and collar osteophytes were present
prior to the accident”, and the following exchange occurred:

Q         Is it
not the case that all of the degeneration that you identified in your operative
report was likely present prior to the motor vehicle accident?

A          Well,
I think we can certainly say that he had degenerative change in his hip in all
probability prior to the accident. I don’t know that I can say with certainty
that all of it was present prior to, obviously nobody could say that with
absolute certainty.

Q         It’s
all consistent with the natural — with the degeneration process; is it not?

A          Sorry,
what’s consistent?

Q         With
the changes that you — the degenerative changes that you describe in his left
hip in your operative report are all consistent with degenerative change.

A          Everything
that I discussed in my operative report are consistent with damage in his hip.
Those can be consistent with the sequelae of femoro-acetabular injury. It
would be consistent with the sequelae of an injury to the joint, and consistent
with degenerative changes, as well.

Q         All
right. So you saw nothing that was inconsistent with degenerative changes.

A          I’m
not sure I understand the question.

Q         Well,
for example, the FAI, the femoro-acetabulum impingement, that’s a pre-existing
condition, correct?

A          It’s a
pre-existing condition. It’s not a degenerative condition.

Q         Right.
But it’s a pre-existing condition that causes degenerative change in the joint.

A          It can
cause degenerative change within the joint.

Q         And did
so in this case.

A          I
believe that in this case some of his degenerative change was caused by his
femoro-acetabular impingement, yes.

Q         And the
osteophyte that you removed, that is certainly, as you explained earlier, a
developmental feature.

A          It
gets a little bit complicated, because the bone that forms from an osteophyte
forms in the exact same position that bone is present for cam-type
femoro-acetabular impingement. So it’s sometimes difficult to know which is an
osteophyte and which is cam-type femoro-acetabular impingement. And no one can
be certain of one or the other. My impression was that some of his
cam-impinging lesion was related to an osteophyte. But certainly some was the
pre-existing shape of his femur.

[Emphasis added.]

(Transcript, pp. 26-27, ll.
11-15)

[161]     Next, Dr. Gilbart
was asked about his finding that the Plaintiff “had some tearing within the
interior substance of the labrum”:

A          That
was what I would call an intra-substance labral tear. So in my description of
the operative findings, I describe it just as that, under page 4, Tab — or number,
paragraph 27:

 There
was some intra-substance tearing within the labrum.

 So
what that means is that the labrum is approximately a four-millimetre wide
structure, and within that four millimetres, there was tearing within it.

Q         And the
tearing and wearing, that was also likely present, prior to the motor vehicle
accident?

A I
believe that if one had the opportunity to look inside of his hip prior to this
motor vehicle accident, there probably would have been some tearing. And
that’s particularly given the fact that we all, I believe, agree that he would
have some pre-existing degenerative change. Most hips that have some
degenerative change or osteoarthritis will have some degree of tearing of the
labrum. That’s not to say, though, that the accident couldn’t have caused some
additional tearing on top of the tearing that would have been present with some
degenerative change, and in the presence of femoro-acetabulum impingement.

Q Well,
that’s not to say there wasn’t, but that’s also not to say there was. There’s
nothing from your observations that would indicate that the accident had any
effect on the labrum; is that correct?

A What
would indicate that the accident had an effect on his hip is the symptoms of
pain in the region after the accident. And so —

A          I
wasn’t there for him to give me a history of the complaint on the day of the
accident. But from what he told me after the accident, and the notes that I
reviewed on — that we’ve talked about for Dr. Fyfe, it was my impression
that he sustained an injury to his left hip during the accident. And that could
have included an injury to the soft tissue surrounding the hip, or an injury to
the structures inside the hip joint, which would include his articular
cartilage and/or his labrum.

[Emphasis added.]

(Transcript, pp. 27-28, ll.
31-33)

[162]     Counsel
for the Defendant pursued the issue of the Plaintiff’s left hip pain with Dr. Gilbart:

Q         And the
basis for that opinion is his statement to you that he had one episode of pain
leaving the hospital on the day of the accident; is that correct?

A          No,
his — his statement to me was that he had had hip pain following the accident.

Q         I see.

A          We
didn’t talk about one episode of hip pain after him leaving, and it’s also
based upon my review of the records of — that we’ve discussed, including Dr. Fyfe.

Q So
your impression was that he had hip pain continuously following the accident?

A No,
I’m not necessarily saying that. What I’m saying is it’s my opinion that
his hip was injured in the accident. That doesn’t necessarily mean that
somebody has to have continuous 24-hours-a-day pain following an accident to be
true.

Q But
if the accident was an initiating event, you’d expect the pain to be present
very soon after the accident, and continue to be present; isn’t that correct?

A Well,
my understanding from him was that that was the case.

[Emphasis added.]

(Transcript, pp. 28-29, ll.
34-10)

[163]     The
cross-examination of Dr. Gilbart ended with him being asked questions as
to why the arthroscopic surgery that he performed did not relieve the
Plaintiff’s pain, in which counsel endeavoured to confine his answers to the
Plaintiff’s intra-articular pain arising from his left hip. It was Dr. Gilbart’s
opinion that such pain was not relieved by the surgery due to the full
thickness cartilage loss present in the superior-lateral aspect of his socket.

[164]     Dr. Gilbart
assessed the Plaintiff on a number of occasions after the arthroscopy,
including on December 3, 2014, in preparation for his report. His report of the
same date is useful in terms of documenting the Plaintiff’s continuing areas of
pain and discomfort in his cervical, thoracic and lumbar areas, both hips and
knees, particularly in light of his evidence at trial about the Plaintiff’s
continued pain being intra-articular and extra-articular his left hip.

[165]     Dr. Gilbart
noted that the pain that the Plaintiff went to the chiropractor for in June
2009 was in his upper back, which is not correct. Arguably he was also mistaken
when he noted that the Plaintiff denied any pre-existing history of pain in his
neck, mid back, low back and left or right hips or knees prior to the accident,
except for low back pain at the age of 16 that resolved.

[166]     However, I
do not regard any of these matters to detract from the substance of his opinion,
which I accept in all material respects. The Plaintiff obviously told Dr. Gilbart
about his visit to Dr. Olson, the chiropractor, in June 2009 and for an
undiscernible reason Dr. Gilbart noted the pain at that time to be in the
Plaintiff’s upper back, which is contrary to Dr. Olson’s notes. I note
that had the Plaintiff not wished to be as frank and complete about his medical
history as possible he would have been more likely to leave out any reference
to Dr. Olson in June 2009. While Dr. Gilbart took a medical history
and wrote a report on the Plaintiff’s overall injuries and condition in 2014,
it must be remembered that his main focus throughout was on the Plaintiff’s
left hip.

[167]     In this
regard, Dr. Gilbart impressed the Court as a highly competent and skilled
orthopaedic surgeon who had an opportunity to first operate on the Plaintiff’s
left hip and therefore was able to view, document and remediate as far as
possible the damage he found there on April 6, 2010. While he found significant
degeneration in the hip joint that pre-existed the accident, he did not rule
out further damage to the hip being caused in the accident, particularly with
the onset of pain in the left hip after the accident as described to him by the
Plaintiff. I will refer to certain aspects of his evidence when I address the
issue of causation.

[168]     The Court
finds that Dr. Gilbart gave his evidence in an even-handed, impartial and
careful manner and accepts his evidence, observations and conclusions about the
Plaintiff’s overall condition as contained in his December 3, 2014, report. The
Court also accepts his opinions as to the role the accident played in rendering
the left hip symptomatic, the state of the Plaintiff’s right hip and in
relation to the Plaintiff’s future prognosis.

Dr. Clive Duncan – an orthopaedic
surgeon and hip specialist

[169]     The
Plaintiff called Dr. Duncan. He is undoubtedly a world-renowned
orthopaedic surgeon who was qualified as an expert in this field with a subspecialty
pertaining to the diagnosis, management and treatment of disorders of the hip.

[170]     Dr. Duncan
noted the arthroscopic surgery performed upon the Plaintiff by Dr. Gilbart
and, while he did not have a copy of Dr. Gilbart’s operation report when
he wrote his first report, Dr. Duncan understood the prior MRI findings
were confirmed and that this intervention gave the Plaintiff “substantial
relief (described as 80-100% by the patient) for about six months.” After the
surgery performed by Dr. Gilbart, Dr. Duncan noted that the Plaintiff
“returned to work again on October 13, 2010 and lasted until April 2011 with
the assistance of an apprentice” and thereafter was unable to work.

[171]     Dr. Duncan
noted that he first saw the Plaintiff in August 2011 and “confirmed the
diagnosis of degeneration affecting the left hip, on a clinical and
radiographic basis with only temporary relief by minimally invasive
arthroscopic intervention.” He discussed treatment choices with the Plaintiff, the
two options being a Birmingham surface replacement or total hip replacement.
When he next saw the Plaintiff on October 25, 2011, the Plaintiff’s pain and
disability were increasing and he had decided in favour of the Birmingham
surface replacement.

[172]     Dr. Duncan
performed a Birmingham surface replacement upon the Plaintiff’s left hip on April
3, 2012. His recovery was slow and incomplete. By June 2012, the Plaintiff
reported that his arthritic pain had completely resolved and that, although he
had some post-operative surgical pain, it was improving daily.

[173]    
However, by September 2012 Dr. Duncan noted that the Plaintiff was
again having difficulties with his left hip. He was concerned about a
“clunking” sensation in his left hip and he had developed groin pain. He
received treatment in the form of an injection of local anesthetic and steroid
on October 25, 2012, but it was not helpful.

[174]     When Dr. Duncan
next saw the Plaintiff in January 2013 he noted that the Plaintiff’s pain and
disability continued and he had been unable to return to work as a plumber,
observing that he had discomfort during passive motion of the hip and
tenderness around the greater trochanter.

[175]     Dr. Duncan
described last seeing the Plaintiff on July 4, 2013, at which time the
Plaintiff complained of hip girdle pain, pointing to the groin, trochanteric
region, and mid-buttock that was aggravated by activity or attempts to bend the
hip above a right angle. Dr. Duncan reported that examination revealed no
abnormality affecting the Plaintiff’s lumbar spine, and that the motion of his
left hip was similar to what is commonly observed following Birmingham surface
replacement in male patients with a similar build to the Plaintiff, but that
internal rotation of the flexed hip caused significant groin pain. As for the
Plaintiff’s right hip, although it was affected by intermittent mild discomfort,
his range of motion revealed no significant abnormality.

[176]     Dr. Duncan
set out his summary and the conclusions of his first report, as follows:

This healthy and active patient was living a full and normal
life until he was involved in a motor vehicle accident on August 18, 2009. He
recalled having groin pain that day (and his family practitioner recorded a
bruised left lower extremity). Two months later he developed increasing hip
pain on the left, a joint that had been previously asymptomatic. Clinical and
radiographic evaluation revealed early degeneration affecting both hips,
previously ”silent” or asymptomatic. A CT scan confirmed these finding [sic]
on the left. An MRI arthrogram revealed the additional problem of a torn
labrum. These symptoms failed to respond to non-operative management, leading
to minimally invasive intervention by way of hip arthroscopy, with an initially
successful outcome. But his symptoms recurred and worsened and he was unable to
continue his previous line of work, nor enjoy his previous outdoor activities.
Furthermore, these symptoms were not controlled by substantial analgesic
medication. This led to more substantial reconstruction of the left hip,
again with an initially satisfactory outcome, but the subsequent development of
a painless clunking sensation which gave him concern as well as pain affecting
the hip girdle in general. Clinical evaluation has revealed ongoing soft tissue
inflammation (tenderness around the greater trochanter) and reproduction of his
symptoms with internal rotation of the flexed hip, suggesting painful anterior
impingement. I would categorize this outcome as less than satisfactory, and
certainly not adequate enough for him to be able to return to work in his
previous capacity as a plumber, nor any other job which would require
significant physical activity and painless joint flexibility. Furthermore,
there remains the remote chance that he is developing an adverse local reaction
to the implants, although that is extremely uncommon in male patients with this
implant system, if the components have been implanted correctly (as they were
in this instance). In the face of ongoing symptoms, now that we are out
to two years after operation, or nearly so, further investigation of the left
hip would be advisable. He has not returned for review since July 2013, but I
would be willing to see him again in that regard.

[Emphasis added.]

[177]     Dr. Duncan
commented on a number of further matters specifically raised by the Plaintiff’s
counsel by letter, including the following:

13) Prognosis and extent of permanent disability:
I believe his ongoing symptoms and disability are substantial, mainly
manifested by pain when he attempts to flex the hip above a right angle or
combine this with rotation. It remains uncertain whether these symptoms will
settle with time alone. They had not done so by July 2013.

14) Whether there is a risk of future complications:
Yes there is a risk that the total hip replacement will need consideration if
his symptoms should worsen, or that revision of the Birmingham surface
replacement will be required if that operation fails due to fracture of the
femoral neck, avascular necrosis of the femoral head, loosening of one or both
components, a blood borne infection, or adverse local tissue reaction to trace
metal particles.

15) The relationship of the various complaints and
problems to the MVA: It is my belief that the patient had
bilateral, silent (asymptomatic), mild degeneration affecting each hip,
rendered symptomatic on the left side as a result of the MVA impact, in other
words an aggravation of a pre-existing asymptomatic condition. The persistence
of his symptoms following that led to the need for two surgical interventions,
each initially successful, but leaving him now with a disability that I would
relate to post-operative soft tissue inflammation and possible painful anterior
impingement to the surface replacement.

[Emphasis added.]

[178]     Dr. Duncan’s
first report also contains responses to five additional questions posed to him
by the Plaintiff’s counsel:

1) The causal relationship between the accident
and the hip disease, as well as its treatment: I believe the accident
aggravated an asymptomatic pre-existing condition, leading to synovitis
(chronic inflammation of the lining of the hip) and increasing degeneration,
requiring two surgical interventions. It is notable that the right hip was also
asymptomatic, had a degree of radiographic degeneration equivalent to the left,
but has not advanced radiographically (up to July 2013) and has not required
specific treatment.

2) The prognosis for the hip, had he not been
involved in the MVA in August 2009: I believe the hip would have
remained asymptomatic, as the right side has done, for a number of years,
perhaps five to ten.

3) The time to full recovery:  That remains to
be seen and further intervention may need consideration.

4) Whether the hip is functioning well (for
instance, the clunking sensation): The hip joint is painful when he attempts
to move it beyond a right angle, particularly when he combines this with
internal rotation. The painless clunking sensation is due to temporary
separation and re-articulation of the metal articular surfaces. It is a common,
but usually short-lived, sensation noticed by patients who have had
“hard-on-hard” bearing surfaces, such as metal-on-metal or ceramic-on-ceramic.
Likely the same separation phenomenon occurs following conventional hip
replacement, but is not noticed by the patients because that articulation is
“hard-on-soft” (metal-on-polyethylene).

5) The time to the next intervention (such as
revision) and number of revisions that may be required in his lifetime: In
the presence of a satisfactory outcome after Birmingham hip resurfacing, which
we see in more than 95% of male patients, the hip registry data from countries
around the world indicate no need for revision in greater than 95% of cases out
to ten years. The prognosis following that is uncertain, but we have no reason
to doubt that such an outcome would continue for at least 15 years from the
index procedure. Following that, there would be and [sic] increasing
likelihood that conversion to total hip replacement would be necessary (which
in a man of this age would be at 50-55 years of age) and the likelihood of a
further revision by way of a component exchange (such as the plastic liner of
the socket) 20 or 25 years later. He does not however have a satisfactory
outcome at this time as I have outlined above. Depending on his progress over
the next year or two, and the results of further investigation, then earlier
conversion to a hip joint replacement may need consideration.

[Emphasis added.]

[179]    
Dr. Duncan proved a second report dated April 2, 2014, updating his
opinion:

In response to our telephone conversation on April 1, 2014, I
confirm that you asked if the early hip reconstruction required by your client
has introduced the need for one additional hip procedure in his lifetime,
compared with what otherwise would have been required, had the first
intervention not been required out to 10 years later: in his mid-forties.

Yes I believe this is a reasonable assumption, when we
consider that the unproven but anticipated lifespan of each reconstruction is
in the region of 20 to 25 years. This is all the more plausible when we
consider that the outcome following surface replacement (hip resurfacing) has
not lived up to his expectations and may require revision to a total hip
replacement within the next five years.

[Emphasis added.]

[180]     Dr. Duncan
provided the following additional opinion with regard to the pre-existing
degeneration in the Plaintiff’s left hip, dated March 5, 2015:

I believe it is a reasonable statement to make, that a large
and robust joint, such as the hip, would require a significant amount of energy
to cause injury. However that statement holds true, in my view, when we are
talking about a normal or near normal joint. What has been overlooked is
that Mr. Pike’s hip was far from robust. It was the site of significant
silent degeneration and quite prone to injury. It would take far less force to
injure this joint compared with other normal joints in this patient’s body.

Many examples of this phenomenon, namely a predisposition to
injury, exist throughout the musculoskeletal system, such as the unstable
shoulder prone to dislocation, the ligament-deficient knee prone to meniscal
tears, or the osteoporotic spine which is prone to fracture. To postulate
that progressive symptoms affecting an abnormal joint after an injury which an
emergency physician correctly assumed is not major in severity, and to
attribute such symptoms to mere coincidence, is an unreasonable assumption.

In my opinion, a significant amount of the damage
documented by Dr. Gilbart, such as the cartilage degeneration, torn labrum
and so on, likely pre-existed the motor vehicle accident. However, what is
undeniable to me is that the joint was asymptomatic until it was injured,
became symptomatic that day, and those symptoms returned in time as the joint
became inflamed, resulting in a steady deterioration, or acceleration of the
osteoarthritis, requiring two surgical interventions for treatment, in other
words, an acceleration of a pre-existing condition as I believe I stated in my
first report. One can only speculate what that added injury was, but it is not
difficult to envision that a pre-existing labral tear was further torn, or
unstable pieces of articular cartilage became displaced, leading to accelerated
joint damage.

As to the interval between the injury and the development of
more severe pain, let me just state that such an interval is common in my
clinical experience. While the onset of symptoms affecting a degenerated
joint are usually gradual, in many cases there is an inciting event, the
significance of which was not recognized at the time.

[Emphasis added.]

[181]     In
cross-examination, Dr. Duncan was asked about the arthroscopy performed
upon the Plaintiff by Dr. Gilbart, based on a review of Dr. Gilbart’s
report:

Q         And if
we look at the actual operative report dated April the 6th, 2010, you would
agree with me that there are no signs of trauma which can be identified —
which are identified by Dr. Gilbart who performed the arthroscopy.

A          I
don’t think he makes that judgment. He simply makes observations about what he
saw, and makes no judgment as to their causation that I can see.

Q         Well,
not on an operative report. So the question I’m asking you is, is there
anything in the operative report that you’re suggesting is traumatic?

A          Any
one of those could be traumatic.

Q         Right.
So —

A          There
isn’t a difference between some of the findings relating to degeneration and
those that have been worsened by an impact. There is simply no way a surgeon
can look at a flap of cartilage and say, "That antedated the motor vehicle
accident." If there was a fracture, I could say, yeah, that likely related
to trauma. But I don’t see how you could discriminate between those findings
that pre- or follow the accident.

Q         Right.
So there was nothing in the operative report that would give you any support
for the theory that there was trauma —

A          That’s
not correct.

Q         — to
that area.

A          I did
not say that.

Q         I’m
sorry, sir.

A I
find these quite consistent with a degenerated hip that was worsened by an
accident.

Q         Right.
Consistent with.

A          Yes.

Q         But no
evidence that would —

A          There’s
no —

Q         —
necessarily point to trauma. These are also equally consistent —

A          No.

Q         — with
degeneration?

A Nor
evidence that would state that they pre-existed the accident.

(Transcript, pp. 20-21, ll. 8-2)

[Emphasis added.]

[182]     Dr. Duncan
was asked in cross-examination about his opinion that a significant amount of
the damage in the Plaintiff’s left hip as documented by Dr. Gilbart likely
pre-existed the accident and that the left hip joint was asymptomatic until it
was injured in the accident, becoming symptomatic that day with the symptoms
returning in time as the joint became inflamed. It is clear from the exchange that
Dr. Duncan regarded the Plaintiff’s prior complaint of lower back pain and
right hip pain as irrelevant to issues related to the left hip.

[183]     When
counsel for the Defendant asked Dr. Duncan if he questioned the Plaintiff
generally about his pre-accident health, Dr. Duncan responded in a manner
that indicated that he relied on the Plaintiff’s account of sudden pain in his
left hip outside the hospital emergency the day of the accident as evidence of
injury to an already fragile left hip in the accident. Dr. Duncan was also
asked whether force sufficient to cause left hip pain would also necessarily
cause problems walking:

Q         You
found the presence of left lower limb bruise significant because you felt it
might imply that the left hip received some force.

A          Yes,
that’s correct.

Q         However,
you don’t know how the left lower limb received that bruise.

A          I do
not, no, correct.

Q         You
don’t know how far the leg flexed on that occasion before the left lower limb
was bruised.

A          That’s
correct, yes.

Q         Now, a
force strong enough to indirectly affect the left hip, by affecting the area of
the knee, would that not cause some problem walking or ambulating?

A I
don’t believe so. As I’ve already emphasized, it was a fragile hip. It would
not have taken a great deal of force on the sole of the foot were you to bang
it down on the floor of the car, on the knee were it to hit the dashboard or
the steering wheel. I don’t believe a great deal of force would be required
—

Q         Right.

A —
to wrench the hip.

Q         In fact
— but if the hip were indirectly affected by some force to the knee, would he
not have had some problem walking?

A          I — I
believe, as I said earlier, if the hip had been normal —

Q         Right.

A          — the
amount of force required would have given a limp — a limp. It would have led to
difficulty walking.

THE COURT: I’m
sorry, I didn’t hear your answer, sir.

A          The
amount — the amount of force —

THE COURT: If the
hip had been normal…?

A Had
been normal, I think the amount of force required to injure that normal hip
would have led to difficulty with ambulation, with walking. With a fragile hip
like this, I think it is consistent that a much smaller amount of force would
cause damage and present it at that point and later, without causing difficulty
with gait, with walking.

(Transcript, pp. 24-25, ll. 13-8)

[Emphasis added.]

[184]     The observations
of the Plaintiff’s left hip contained in Dr. Gilbart’s operative report
from the arthroscopy, which Dr. Duncan had acknowledged he did not have
when he wrote his first report, were reviewed with Dr. Duncan. He agreed
with defendant’s counsel that Dr. Gilbart’s report described extensive
degeneration.

[185]     Thereafter,
Dr. Duncan declined to lower his estimate that absent the accident the
Plaintiff’s left hip would have become symptomatic in “perhaps five to ten”
years.

[186]     In further
cross-examination Dr. Duncan agreed that while most degenerative joints do
not need an injury or inciting event to become symptomatic, an inciting event
like a fall, a twist or a stumble may render the joint symptomatic.

[187]     When Dr. Duncan
was questioned about his opinion regarding the accident causing the Plaintiff’s
left hip to become symptomatic, it became clear that his opinion hinges on the
Plaintiff’s complaint of pain in his left hip on the day of the accident.
Without this complaint, Dr. Duncan stated that he would be much less
likely to connect the accident and the pain, both temporally and causally.

[188]     In the
following exchanges Dr. Duncan was asked about the timing of the onset of
synovitis in the Plaintiff, its signs, and possible causes, including the
Plaintiff’s return to work in September 2009 and his fall in early November
2009:

Q         Now, as
I understand it, a person suffering from synovitis are likely to experience
pain when performing movements of the hip.

A          Yes,
that is correct.

Q         Limping
is a common sign of synovitis.

A          Yes.

Q         Aggravation
of pain while performing movements of the hip are common signs of synovitis.

A          That
is correct.

Q So
when you indicate that you think synovitis set in, are you again relying on
that one episode?

A No,
I’m relying on the return of these symptoms two months later. Synovitis takes
time to develop.

Q Right.
But how do you know when the synovitis — synovitis began?

A Because
I was told he had pain —

Q Right.

A —
after the accident.

Q So
this one episode of pain that he described is what you feel was the instigator
of a synovitis?

A Yes.

Q         But you
should have ongoing symptoms if you have synovitis.

A          I
disagree. As I just stated, it takes time for synovitis to set in, and what
more likely happened, in my view, is some of the cartilage flaps destabilized
leading to synovitis, the return of symptoms, et cetera,

Q Were
you aware that he returned to work on September the 1st?

A I
was.

Q Okay.
So it’s also possible, is it not, that some of the squatting, twisting or
bending with work could have been an inciting event?

A It’s
possible, but it didn’t happen before the accident.

Q It
also could be possible, if he had a fall on November the 2nd, that that could
be an inciting event.

A If
he had a fall, significant fall, yes.

Q And
it’s also possible that none of these were inciting events, and it is just his
time for his left hip to become symptomatic.

A It
is possible, correct.

(Transcript, pp. 31-32, ll. 40-37)

[Emphasis added.]

[189]     I do not
interpret Dr. Duncan’s answer (that none of the events he was referred to
above caused the Plaintiff’s left hip to become symptomatic and it was just his
time for the left hip to become symptomatic) to detract from the substance of
his overall opinion, which is that the accident triggered pain in the
Plaintiff’s left hip joint that developed into synovitis.

[190]     Dr. Duncan
is pre-eminent in his field. He is also a highly professional, impartial and
careful witness. I accept his evidence and his opinions without hesitation or
qualification. He has operated on thousands of damaged human hips (at a rate of
approximately 500 per year) and developed technologies to improve outcomes. He
has taught many of the leading orthopaedic surgeons practicing hip surgery in
the country. In addition to providing his opinions in the two reports referred
to above, like Dr. Gilbart, he too had the opportunity to perform surgery
on the Plaintiff’s left hip and to assess him thereafter. Dr. Duncan is
thus extremely well equipped to opine on the condition of the Plaintiff’s hip
prior to the accident and the progressive deterioration of the Plaintiff’s left
hip thereafter. He is also extremely well qualified and equipped with a great
deal of specific information about the Plaintiff’s left hip when it comes to
opining on the issues of causation, the Plaintiff’s prognosis absent the
accident in terms of loss of future capacity and matters relevant to the cost
of future care. I will refer to points in his evidence when I address those
issues.

Dr. Jordan Leith – an orthopaedic
surgeon

[191]     Dr. Leith
was called on behalf of the Defendant. He was qualified as an expert in the
field of orthopaedic surgery. In his residency training as an orthopaedic
surgeon at UBC he listed a number of key mentors, including Dr. Clive
Duncan, in the field of reconstructive orthopaedic surgery. In his direct
examination he was directed to some of his underlying assumptions, including:
that clinical records closest to the date of the accident are the most accurate
representation of clinical presentation following the accident; that the Plaintiff
suffered a sharp pain in his left groin region after walking out of the Royal
Columbian Hospital; that he had pre-existing degenerative arthritis affecting
his left hip at the time of the accident based on imaging studies obtained; and
that after the accident the Plaintiff did not present with any clinical signs
or complaints localized to the left hip that would be consistent with an injury
having occurred to the left hip at the time of the accident. Dr. Leith
explained how he identified certain characteristics in relation to the
Plaintiff’s left hip that were acquired at birth or developmentally, namely a
pistol grip deformity and a “cam type” femoro-acetabular impingement (“FAI”),
that predispose an individual to early arthritis.

[192]     The
following report, dated November 7, 2011, sets out Dr. Leith’s opinion at
pp. 3-4 with regard to whether the Plaintiff’s left hip symptoms were
caused by the accident:

Opinion:  Based on this evaluation and review of the
documents provided, it is my opinion that the symptoms to the left hip were
not the result of the subject accident nor was the left hip condition impacted
by the occurrence of the subject accident.

Mr. Pike clearly had pre-existing degenerative
arthritis affecting the left hip at the time of the subject accident as noted
with the imaging studies obtained following the subject accident. The
degenerative changes noted in the imaging would not have occurred as a result
of the trauma of the subject accident over the short time period from the time
of the accident up to when the imaging was obtained.

Mr. Pike also did not present with any clinical signs
or complaints localized to the left hip after the subject accident that would
be consistent with any injury having occurred to the left hip at the time of
the subject accident. Therefore, no injury occurred to the left hip at the time
of the subject accident.

Mr. Pike developed progressive left hip pain at least 2,
if not 3 months after the subject accident and was subsequently investigated
for this. Like most patients with arthritis of a joint the presentation is one
of gradual progressive symptoms following the initial onset of pain once the
critical point of degeneration within that joint is reached for the onset of
that pain to occur.

In Mr. Pike’s case the onset of his left hip pain
would have occurred absent the subject accident at the same time, if not
sooner, had he not been off work following the subject accident. The left hip
pain occurring after the subject accident was an occurrtence [sic] of coincidence.

The prognosis for his left hip is poor as the arthritis
will continue to progress to the point where he will require a joint
replacement. The surgery of April 2010 essentially cleaned out the joint and
removed some of the bony changes associated with arthritis in the hopes of
providing some short term relief for Mr. Pike. Unfortunately, the benefit
of the surgery has worn off and now Mr. Pike is left to deal with the
progressive arthritis of his left hip. Ultimately, Mr. Pike is going to
require a hip replacement.

As a result of the left hip arthritis, his ability to do
certain aspects of his job will be affected secondary to the pain and
discomfort associated with these activities and the loss of motion that will
occur in the hip joint limiting his ability to perform those activities. If Mr. Pike
is unable to make appropriate accommodations in his work environment as a
plumber the [sic] he will have to consider changing vocations. If her [sic]
were to have a hip replacement he would likely be able to continue in his
current vocation.

[Emphasis added.]

[193]     In
cross-examination Dr. Leith was questioned about a number of the facts and
assumptions underlying his report, including:

·      
where Dr. Leith noted that Mr. Pike developed
progressive hip pain in late October 2009, it was put to him it should have
read that he “reported” progressive left hip pain at that time, to which Dr. Leith
responded that his report would have benefited from an extra line of
clarification: “So he developed the pain in late October, because that’s when
it started to be documented in the records.” Dr. Leith agreed that he
assumed the Plaintiff developed progressive left hip pain two months
post-accident (Transcript, pp. 16-17).

·      
Dr. Leith was directed to his summary about what the Plaintiff
had told him about attending physiotherapy and continuing to have intermittent
sharp groin pain that became worse as his stiffness subsided with
physiotherapy, and his hip pain becoming “more prominent approximately one to
two months after the accident”, to which Dr. Leith responded that was what
the Plaintiff told him (Transcript, p. 17)

·      
When Dr. Leith stated in his report that the Plaintiff
“developed progressive left hip pain at least two if not three months after the
accident” and that previously he had stated “two months after the accident”, Dr. Leith’s
response was “It doesn’t really matter whether it’s two or three months. It’s
still a delay of two months. We can go two if you want. It doesn’t change
anything” (Transcript, p. 18).

·      
When asked if that sharp groin pain could be indicative of a hip
problem, Dr. Leith’s response was “That’s one of the features that you
look at. And you’re referring to the hip joint, or are you just referring to
the hip girdle. Because you have to — you have to make that distinction,
because it can be two different things” (Transcript, p. 18).

[194]     The
following are excerpts from Dr. Leith’s more recent report, dated February
9, 2015, at pp. 5-7:

Opinion: Based on this evaluation of Mr. Pike, he has a
significant problem related to his left hip region even after having had a
resurfacing arthroplasty (joint replacement) at his young age.

He continues to have pain similar to the pain experienced
after the subject accident. It is highly unusual for a patient to continue to
have pain after undergoing a total hip replacement for arthritis of the hip
joint. The purpose in performing the surgery was to remove the pain present
that was felt to be from and assumed to arise from the arthritis.

As a result of ongoing complaints, he will likely require
revision hip replacement in the future. I would be cautious with this plan of
management given that his pain may not be arising from the hip joint.

As far as causation is concerned, it remains my opinion
that the subject accident had no bearing on the current outcome of his left
hip. There is no clear evidence that he suffered any acute injury to the left
hip that would meet the biologic principles of injury to a joint or tissues
about a joint.

Any injury that would cause damage to as large a joint and
as robust a joint as the hip joint would require a significant amount of energy
transfer to the joint. This would result in immediate and very obvious signs
localized to the hip joint. One would also see at presentation deep-seated pain
to the hip joint in the groin region and disability such as inability to weight
bear either fully or partially.

The history provided by Mr. Pike to Dr. Gilbart, Dr. Duncan
as well as myself does not reflect such a condition following the subject
accident. The clinical records also do not reflect that an injury occurred to
the hip joint during the subject accident to render it symptomatic.

What is known is that he had, what he describes, as a very
short bout of pain after departing the Emergency Department that was not
present again for at least a couple of months. He also did not have any pain to
the left hip after the subject accident and while in the Emergency Department.
He then developed increasing pain to the left hip joint while carrying out his
work as a plumber.

It was also found that he had degenerative changes present
in both hip joints with imaging obtained within a few months of the subject
accident. These changes were clearly not the result of the subject accident.
The arthritic changes would not have shown up on imaging studies in the time
period from the date of the accident to the time the imaging studies were
obtained if they were caused at the time of the subject accident.

Furthermore, the pistol grip deformity and CAM type
femoral acetabular impingement noted by Dr. Gilbart at his initial
consultation are developmental lesions. They are not caused by a traumatic
event and take several years to form. These predispose patients to the
premature development of osteoarthritis. Degenerative labral fraying and
tearing is also a common finding that occurs as a result of these lesions.

At surgery Dr. Gilbart noted a number of degenerative
changes to the left hip joint. There was no labral tear off of its attachment
to the acetabular rim. All of the changes were secondary to the developmental
anatomy of the hip resulting in early degeneration of the tissues.

Mr. Pike’s clinical presentation following the subject
accident of an insidious onset of hip pain is most consistent with the natural
history of having degenerative changes to the hip joint.

Unfortunately, this onset of pain, while occurring after
the subject accident was not caused by the accident and is one of coincidence
as it relates to the temporal relationship. It was most likely due to his work activities
aggravating an already arthritic hip joint or just related to daily activities
in the face of an arthritic joint then becoming symptomatic.

If it were due to the subject accent [sic] then one
would expect there to be symptoms localized to the hip joint present from the
time of the accident and continuously thereafter with clinical follow-up and
within the history provided by Mr. Pike. This is not what the records
indicate.

If the subject accident had acted as an aggravating event
to cause an acceleration of the already present arthritic change to the left
hip then again one would expect that there would have had to be enough force
applied through the left hip joint at the time of the subject accident to
result in further tissue damage or to cause the onset of acute pain localized
to the left hip joint.

This would then result in a clinical representation of new
acute pain to the left hip joint immediately following the subject accident of
significance that it would also be noticeable at assessments in the Emergency
Department and at follow up thereafter.

Again, this is not what the information available to me would
indicate occurred. Therefore, the accident did not cause any aggravation
acceleration of the arthritic process involving the left hip.

In summary, it remains my opinion that no labral tear or
acute injury occurred to the left hip at the time of the subject accident. It
is more likely that his left hip joint problem was incidental and secondary to
early arthritis. He has shown similar findings in the opposite, right hip as
well. It is possible that some of the pain he has is secondary to his lower
back problem or a muscular strain.

The expected outcome/prognosis following a hip replacement
would be complete or near complete relief of the pain to the hip joint. Return
of function for daily activities, non-impact sports and recreation and most
work activities including plumbing would also be the expected outcome. I cannot
explain the unexpected and poor outcome exhibited by Mr. Pike as it relates
to his left hip.

[Emphasis added.]

[195]     With
respect to this second report, Dr. Leith was asked about his opinion (on
p. 5) that any injury that would cause damage to as large and robust a
joint as the hip would require a significant amount of energy transfer,
resulting in immediate and very obvious signs localized to the hip joint and presenting
deep-seated pain to the hip joint in the groin region. Dr. Leith was asked
which surgery he was referring to when he stated (at p. 5) “The purpose in
performing the surgery was to remove the pain present that was felt to be from
and assumed to arise from the arthritis.” He said he was referring to both
surgeries (the one by Dr. Gilbart and the one by Dr. Duncan), whereas
in the line above he wrote that “It is highly unusual for a patient to continue
to have pain after undergoing a total hip replacement for arthritis of the hip
joint”, agreeing with counsel that he was referring to the surgery performed by
Dr. Duncan, which in fact was not a total hip replacement but a Birmingham
hip resurfacing. Dr. Leith then set about to explain how the two
procedures were similar but different.

[196]    
Dr. Leith agreed that his stated opinion (p. 6) that the onset of
the Plaintiff’s pain, “while occurring after the subject accident, was not
caused by the accident, and is one of coincidence…”, was essentially a
reiteration of the opinion he stated in his first report (p. 3), which was that
the onset of the Plaintiff’s left hip pain “would have occurred absent the
subject accident at the same time, if not sooner, had he not been off work
following the subject accident. The left hip pain occurring after the subject
accident was an occurrence of coincidence.”

[197]    
Dr. Leith’s attention was then directed to the statement of his
areas of expertise set out under “Qualifications” in both reports. In his first
report dated November 7, 2011, his subspecialty of orthopaedic practice is stated
to be “primarily dedicated to disorders of the upper extremity and the knee”
without reference to the hip; whereas in his second report, dated February 9,
2015, his subspecialty of orthopaedic practice is stated to be “primarily
dedicated to disorders of the upper extremity and the hip and the knee.” Dr. Leith
was then directed to his statement about his current practice in his second
report at the UBC Hospital and the Cambie Surgery Centre “with a subspecialty
focus on shoulder, elbow, hip and knee reconstruction, and arthroscopic
surgery”, whereas the statement about his practice in his first report omits
any reference to “hip.” Dr. Leith agreed that his specialty with regard to
the hip developed between the dates of his first and second reports. He agreed
that he took a course in Scottsdale in 2012 in relation to hips and said he
also visited a hip specialist practice. Then his practice started seeing more
and more hip patients. Reviewing the entries regarding his continuing medical
education, Dr. Leith agreed that most of the entries dealt with
arthroscopy, the knee and the shoulder, and that the first reference to the hip
was the course in Scottsdale on January 21, 2012, which was the only course or
seminar specifically in reference to this hip on his curriculum vitae.
However, Dr. Leith did indicate that aspects of other courses with the
Arthroscopy Association included the hip, but agreed that at the time he took
them his practice did not include a subspecialty in the hip. Further, he agreed
that none of his referred publications or work submitted relate specifically to
the hip.

[198]    
Dr. Leith was asked if he was familiar with Dr. Clive Duncan,
to which he responded “Of course.” Asked if he had seen Dr. Duncan’s curriculum
vitae recently, Dr. Leith responded “It’s a constantly growing
document.” He agreed that it is all related to hip joint replacement. When
asked if he would defer to Dr. Duncan’s opinion regarding the diagnosis,
management, and treatment of hip injuries and disorder, Dr. Leith said,
“No, because it’s a basic principle of being an orthopaedic surgeon” (Transcript,
p. 27). Then the following exchange occurred:

Q         All
right.

A          So any
orthopaedic surgeon — now, I would defer to him if I wanted my hip replaced,
I’d let him replace my hip.

Q         So you
would — if you had to have a hip replacement, Dr. Duncan is the man you
would go to?

A          Yes

Q         All
right.

A          One of
the men, right.

(Transcript, p. 27, ll.
23-31)

[199]    
In addition, asked whether he would defer to Dr. Gilbart regarding
diagnosis, management and treatment of hip injuries and disorders, Dr. Leith
said “No, because we’re — we’re in the same practice, and we do the same
thing” (Transcript, p. 27).

[200]     Where the
evidence and opinions of Dr. Leith conflict with those of Dr. Duncan
and Dr. Gilbart, the Court does not accept them. In my view, Dr. Leith,
while no doubt a skilled orthopaedic surgeon, does not have the breadth of
experience or the careful analytical skills of Dr. Duncan. When Dr. Leith
prepared his first report his area of expertise did not include the hip, which
is a recent development for him. In his reports he tended to gloss over things
that did not support his view, like the Plaintiff’s report of hip pain after
the accident. Dr. Leith was also prepared to assume without any factual
foundation that it was the Plaintiff’s work that rendered his left hip
symptomatic as opposed to the accident, when the Plaintiff had been working
without incident prior to the accident. Dr. Leith even went to the extent
of implying that the Plaintiff’s absence from work for several weeks due to the
accident delayed his left hip becoming symptomatic from his work. This is a
completely unfounded assumption. It shows a certain lack of impartiality and a
failure to address the known facts in the context of formulating such opinions.

[201]    
When Dr. Leith was asked why he would not defer to the opinions of Dr. Gilbart
and Dr. Duncan, instead of addressing the substance of their opinions or
at least recognizing that both of them had actually treated and repeatedly
assessed the Plaintiff, his response was that he would not defer to them
because they all worked in the same field. That kind of response is not helpful
to the Court.

[202]     I specifically
do not accept the opinions expressed by Dr. Leith as they relate to
causation where they conflict with those of Dr. Gilbart and Dr. Duncan.
I do note, however, that Dr. Leith and Drs. Gilbart and Duncan all agreed
that the Plaintiff had significant pre-existing arthritic degeneration in his
hips prior to the accident.

Dr. Paul Bishop – an orthopaedic
spinal expert

[203]    
Dr. Paul Bishop was called by the Plaintiff. He was the only
medical expert to testify in relation to the Plaintiff’s spine. He is an
orthopaedic spinal expert, qualified to provide expert opinion evidence in
relation to non-surgical spine diagnoses and treatment and intervertebral disc
pathology. Dr. Bishop’s report about the state of the Plaintiff’s spine,
dated October 14, 2014, included the following opinions:

A. Diagnosis:

1)         Chronic mid back pain with a discogenic component.
Rule out active underlying inflammatory processes.

2)         Chronic lower back pain with a discogenic
component. There is no objective evidence of any spinal nerve root deficit.
Rule out L5 segmental instability. Rule out active underlying inflammatory
processes.

3)         Left lower extremity numbness, not yet diagnosed.
There was no objective evidence of any left-sided lumbosacral radiculopathy.

4)         Bilateral tension headache without migrainous
features.

5)         Bilateral knee pain of patella-femoral origin.

6)         Status (i.e. diagnosis made by others): Post-left
hip resurfacing surgery.

7)         Status: Right hip pain not yet diagnosed.

8.         Treatment
recommended by you and the anticipated results;

 I
would be in a better position to make treatment recommendations when the
results of the proposed additional diagnostic procedures are known. However,
no matter what the results of these additional diagnostic imaging studies, as
far as any further treatment of his spine-related symptoms is concerned, there
is strong clinical research evidence, (level 1 evidence), that patients in this
clinical setting, who continue to participate in non-evidence-based forms of
treatment, (in this particular case, any treatment administered by a
physiotherapist), the prolonged use of analgesic medications and in particular
narcotic analgesic medications, prolonged passive therapies such as massage
therapy or chiropractic spinal manipulative therapy, will result in poor
clinical outcomes and prolonged disability. Thus, as far as his spinal
pain symptoms are concerned, I recommend that this patient avoid all of these
form of treatment.

13.       The
relationship of the various complaints and problems to the motor vehicle
accident to establish a cause or connection if there is one;

  Whether
or not the patient’s demonstrated cervical spine, thoracic spine or lumbar
spine disc pathology’ can be causally related to this accident is in my view
impossible to determine. However, in my experience, it is possible to state
that at least some of this patient’s spinal pain symptoms are originating from
these discs and that the probability is greater than 50% than the trauma of
this accident played a role in rendering these discs symptomatic.

14.       Any
other comments which may apply or assist in the understanding of the medical
aspects of the injuries and complaints.

  The
focus of this patient’s post-MVA treatment has been on his left hip. In
addition, the clinical records that you have provided contain Functional
Capacity Evaluation and Cost of Future Care Analyses that have focused on
issues secondary to his left hip injury. However, as stated above, the
patient has significant disc pathology in his cervical, thoracic and lumbar
spine (and perhaps other spine-related ailments) that will also hinder his
future functional capacity. In addition, as stated above, the possibility of
segmental instability at the L5 level and therefore possible L5 nerve root
irritation and whether or not there is any active inflammatory process at the
level of his pars defect, or at any other site in his spine, that could cause
symptoms, also needs to be ruled out.

[Emphasis added.]

[204]     In direct
examination, Dr. Bishop reviewed his report with regard to the Plaintiff’s
spine and explained the various problem areas – some more likely than others to
have been rendered symptomatic by the accident.

[205]     First,
based on testing of the Plaintiff with the standardized Waddell non-organic
signs, his view was that the Plaintiff’s lumbar back pain is related to his
spine and not to other non-organic findings.

[206]     Next, Dr. Bishop
commented with regard to the Plaintiff’s cervical spine as follows:

Q         And you
talk about no abnormalities of the spinal cord. You talk about C2/C3, C3/C4,
C4/C5 and then you say [as read]:

  At
the C5/C6 level, there is mild disc space narrowing and a small broad-based
disc herniation without calcification that is more prominent on the left side.

  What
does that mean?

A Well,
the patient has a small disc herniation.

A And
I developed some of the criteria that radiologists use to interpret their scans
in my research, so — so without calcification means that it’s probably new.
It’s probably recent, because what the human body does to a herniated disc,
usually but not always, is it calcifies it.

  So
when I’m interpreting an MRI scan, I can see whether there’s a herniated disc
or not, and I can look for signs of whether or not — radiological signs of
whether or not it’s new or old. So without calcification means that it’s
a relatively new development.

Q         You
then go on to say that there is no associated facet or uncovertebral joint
hypertrophy. What does that mean?

A          […] So
the fact that there was no facet joint hypertrophy enlargement, or
uncovertebral joint hypertrophy enlargement, again means that the disc
herniation is probably new, because it hasn’t been there long enough for the
spine to have changed the facet joints and the uncovertebral joints.

Q         You’ve
said a long time. What’s a long time? What do you mean by a long time?

A          More
than five years.

(Transcript,
pp. 12-13, ll. 3-33)

[Emphasis added.]

[207]     Then, Dr. Bishop
commented on aspects of the Plaintiff’s thoracic spine as follows:

Q         There
is a sentence that begins, "At the T6/T7 level .." [as read]:

 At
the T6/T7 level, there is a small central and left side focal disc protrusion
which contacts but does not indent the cord.

 What
does that mean? Are we talking about the same thing?

A          Pretty
much. The significance of that is that’s right where the patient’s mid back
pain is 1 anatomically.

Q         So
where he’s reported pain; is that —

A          Yes.

Q         Okay.
You also say:

 There
was mild disc degeneration Thompson Grade 1 at T7/8 and T8/9.

 What
is — what is mild disc degeneration graded as Thompson Grade 1?

A          So
Thompson — the Thompson grading scheme is an attempt at standardizing disc
degeneration. […]

THE COURT: So
does that system — is 1 always mild?

 Is
that what —

A          Mild,
yes, yeah. Five is severe. And so what that means in a nutshell is consistent
with age-related change. Not consistent with injury.

MR. HULLEY:

Q         And
that’s referring to the degeneration that’s present.

A          Yes,
at the T7/T8. But the T6/T7 is something more than age-related change. It’s
an injury.

(Transcript,
pp. 13-15, ll. 47-16)

[Emphasis added.]

[208]     Finally,
looking at his findings in relation to the Plaintiff’s lumbar spine, Dr. Bishop’s
testimony was as follows:

Q         The
next paragraph, last paragraph in that section starts, "An MRI
scan…". This is on page 13. Okay, in the second — the second line, a
sentence begins, "There are…".

  There
are bilateral pars defects at the L5 level with sclerotic changes.

 What
does that mean?

  So
when you X-ray someone with a pars defect, you see a gap because the X-ray goes
right through the cartilage. So this gentleman was born with a bilateral – so
that’s one on each side, right and left – cartilaginous defect at his — in his
L5 vertebra.

  The
significance of that is that therefore, in those patients, the front of the
vertebra and the back of the vertebra, if you like, the front where the disc is
and the back where the joints are, isn’t connected by solid bone. If along
comes a trauma, like a car accident, those two can separate.

(Transcript,
pp. 15-16, ll. 17-5)

[Emphasis added.]

[209]     Dr. Bishop
noted (in his report at p. 13) that at the Plaintiff’s L5/S1 level there
is a “small broad-based disc bulge without any neural contact.” Also, (at
p. 13) Dr. Bishop noted that at the L4/L5 level “there is mild disc
degeneration (Thompson Grade 1) and an annular tear and a small central disc
protrusion which does not contact any neural elements.” He was then asked to
review the medical imaging of the Plaintiff’s spine over time since the
accident: a CT scan done in 2010, an MRI scan done in 2011, and then another
MRI scan done in October 2014. He stated that it appeared that in April 2010,
the Plaintiff had a “pretty fair sized” disc herniation at L4/5, which had
gotten smaller by the time he received the MRI in 2011 and then appeared even
smaller by the time he was scanned a third time in 2014. This told Dr. Bishop
that somewhere within approximately six months of the 2010 CT scan, the
Plaintiff developed a fairly large lumbar disc herniation that healed, albeit
not completely, over the next four years.

[210]     Next, Dr. Bishop
was asked to explain his comment regarding chronic mid back pain with a
discogenic component. He explained that chronic means that the patient has had
pain for more than six months, and that there are many things that can cause
pain in a patient’s back, discs being one of them. If the disc is thought to be
contributing to the patient’s symptoms, then there is a discogenic component.
He concluded that some, but not all, of the Plaintiff’s lower back pain
appeared to be coming from the disc. He said that the same applied with respect
to the Plaintiff’s mid back.

[211]     In
cross-examination Dr. Bishop was asked about the fact that the Plaintiff
had omitted from his medical history his visit to Dr. Olson on June 8,
2009, with a complaint of low back pain. Dr. Bishop agreed that a disc
herniation at L4/5 would cause excruciating pain. He agreed when shown the
diagram that the Plaintiff marked where he was experiencing pain in his back
that the spot was consistent with the disc at L4/5, but not by any means
diagnostic of it. Dr. Bishop agreed that the disc herniation at L4/5 that
was documented in the CT scan in April 2010 would explain the back symptoms
that the Plaintiff described to Dr. Olson in June 2009. Asked whether his
disc problems had resolved over time, Dr. Bishop described what he was
able to conclude from medical imaging at different intervals, stating that the
Plaintiff’s lumbar disc problems had resolved, and his disc-related symptoms in
his lower back were in the process of resolving, but had not yet resolved; he
was unable to say the same for the Plaintiff’s neck or mid back because he did
not have the sequence of imaging that he had for the Plaintiff’s lumbar spine.

[212]     Asked
about his opinion as to whether the Plaintiff’s disc problems were causally
related to the accident, Dr. Bishop provided the following testimony:

Q That’s
correct. So you’re not suggesting here that the disc protrusions that you’ve
observed are related causally to the motor vehicle accident.

A Well,
if I had it to say all over again, I would have added "to determine
definitively". So people get disc herniations, people develop disc
herniations spontaneously, and so to be able to say, yes, definitely the trauma
of this accident caused this patient to develop those disc herniations at the
base of his neck, in his mid back and lower back, no, I can’t say that.

Q Okay.
Let me see if I can understand that. So with respect to the neck disc, am I
correct in thinking that you’re saying at some stage, he had this disc problem
in his neck, and your view is that the accident has played some role in making
it painful for a period of time.

A Yes,
that’s my view.

Q Okay.
And that is also your view with respect to the area of the thoracic spine that
we’ve talked about?

A Yes.

Q Okay.
With respect to the lumbar spine, however, I’m going to suggest that now that
you have examined the history of the lumbar spine, that that — any connection
with the accident is somehow not very strong. Is that fair to say? I think it’s
fair to say that it’s not a black-and-white issue.

Q Mm-hmm.

A          But
I’ve seen a lot of patients with disc injuries, and Mr. Hulley didn’t go
through that I’ve been director of the Acute Disc Clinic at VGH for many, many
years. And so I was asked to, on the instructions of Mr. Hulley, give an
opinion. And so, yes, I would say that it’s — it’s certainly not
definitive, it’s certainly not black-and-white, but when I review all of the
factors — first of all, the mechanism of injury, it was a head-on or near
head-on, and that induces an immediate flexion, forward flexion strain, an
acute forward flexion strain as opposed to a rear- end accident where the
initial is an extension injury. So, of course, forward flexion loads the discs
dramatically.

  I’ve
seen this time and time again in the clinic at VGH. Patients developing disc
pain after that type of injury. So — but on its own, no, that doesn’t prove
that — that doesn’t provide definitive evidence. But it’s, if you like, a
check in that column.

  Secondly,
we have the temporal association between the onset of the patient’s back
symptoms and the trauma of the accident.

A          Yes.
So, you know, when I’m forming my opinion, I’m considering all of those
possibilities and so if we had a patient who had, right after the accident, at
the scene of the accident said, wow, I’ve got severe pain right at my L4/5
level, well, I think that would be very compelling evidence.

 Similarly,
if we had a patient who didn’t develop back pain for months and months and
months after the accident, then one day developed acute low back pain, then I
would think that would be the other end of the causation — the other extreme
of the causation argument.

  But,
in my view, what we have is something in between. So I see that it says L1 in
the family doctor’s records. When I saw the patient, he complained of pain at
the L4/5 and L5/S1 (phonetic) levels at the bottom levels of his spine. We have
a CT scan done in close proximity to the trauma of the accident which shows a
new disc herniation, and sure, it could have been — it could have occurred at
the time he saw his chiropractor two months before the accident, that could
have happened.

  But
when you go through the clinical records, what you see is a continuum of a
clinical course of ongoing back pain. Now, was it at L1 at every office visit
to the family doctor? I don’t know that. So, you see, you don’t have a patient
who had no low back pain, and then several months later developed acute low
back pain. You don’t have that. You’ve got something in between that.

 I am
agreeing with you — well, maybe not, but I’m saying that that’s a tough call
to make.

 So I
look at the mechanism of injury which is commonly associated with disc injury. I
look at the clinical course which, yeah, I agree with you, is — well, I’m
stating is not black and white. I also look at the fact that the dominant
factor this patient had, dominant injury, appears to have been to his left hip.
So he has all the incapacity of hip pain, walking for all those months with an abnormal
painful — abnormal gait and painful hip, endures two hip surgeries and has the
rehab from all of that. Now, given the fact that he at least had a weak disc at
L4/5 before the accident, is the probability there — you know, what is the
probability that the trauma of that accident added to his disc pathology?

  In
my view, the — weighing all of those factors –and I agree it’s not a
black-and-white argument — but I reached the conclusion that the probability
was greater than 50 percent that the trauma of the accident contributed to him
developing disc pathology.

(Transcript,
pp. 31-34, ll. 39-45)

[Emphasis added.]

[213]    
Counsel for the Defendant followed up with Dr. Bishop as to what
the term “disc pathology” encompassed, timing and causation in relation to the
Plaintiff’s disc problems and back pain, and the impact of the Plaintiff’s left
hip problems on his spine:

Q         When
you say disc pathology, you mean some pain in the region of a disc.

A          Disc
pain in his upper back, cervical/thoracic junction, mid back and lower back.

Q         The way
you were headed, I thought you were about to say that because of the left hip,
it could very well be that that’s what has aggravated his —

A          I
think that’s a contributing factor, yeah.

Q         Okay.

A          Yeah,
I would —

Q         So that
it could be the initiator too, could it not?

A Hard
to say. I — if the — the overall — if I could summarize everything in my
mind, my clinical impression is we have a patient with a weak lumbar disc and
he has this accident. He develops further injury to his disc either through the
direct result of that flexion injury in the trauma of the accident, or as a
secondary consequence of all of the abnormal biomechanics, if you want to call
it that, of this hip injury.

Q Is
it just as likely that it’s the result of the abnormal biomechanics of the left
hip?

A You
know, I don’t know any way to say that clearly. The way I try to say something
helpful, but something obviously fair, was that I think if it hadn’t been for
the trauma of the accident, he wouldn’t have developed these discogenic back
pain and mid back symptoms, and that whether or not it was the abnormalities of
his gait or the direct result of the trauma, I couldn’t say.

Q         If it
was the direct result of the accident would you not expect there to be some
complaint either to the ambulance attendants at the scene of the accident or at
the hospital?

A          I
think we can say definitively that the accident didn’t herniate his disc.

Q         Right.

A          Because
if it did, you would be absolutely right, he would be giving a totally
different history. What we’re arguing about, or discussing —

Q         Yes.

A          — is
whether or not the trauma of the accident accelerated a degenerative process or
further weakened his disc which inevitably led to this point.

Q         Or if
it even elicited pain.

A          Yes.
Well, remember he’s in Royal Columbian Emerg. So the accident is in August. In
December, he’s in Royal Columbian Emerg complaining of acute back pain. So I
think we could fairly say — and then I think two months later, he’s in VGH Emerg
complaining of lower back — acute lower back pain, so I think we can fairly —
and then after that, he has a CT scan. I think we can fairly say that he had a
significant disc injury at that point, and —

Q         Certainly
December.

A Yes.
And so then the question becomes, okay, now, is it reasonable to say that the
trauma of the accident and/or the abnormal biomechanics of this hip injury —

Q Mm-hmm.

A —
led to that happening? And so in my experience, if it happens like that within
four to six months, yes, I think the probability is greater than 50 percent.

Q That
it’s…?

A That
it accelerated the —

Q The
abnormal —

A That
it injured his disc and led to a disc herniation developing acutely, taking him
to Emerg. I mean, it’s a — it’s a tough call. I’m not disputing that and I
think that’s coming across in my testimony. But, you know, if it had been
rear-end collision or if it had been a minor collision, or if there had been a
huge gap of no lower back pain — but when you add all those things up together,
that it was forward flexion injury, quite an acute one, and there is continuity
of a clinical course of back pain, maybe at L1 some days, maybe at different
levels on other days. That’s how I reached my conclusion.

A          So —
yeah, I think my point was so we get to December of the year of the accident.
So the accident’s in August. We get to December, and there he is with acute
pain in his lower back in the ER, and eventually — and then two months later
again in the ER with acute lower back pain. We get to the scan and it shows a
disc herniation.

  So
is it likely — what’s more likely? Is it that it happened spontaneously? Well,
I mean, yeah, that could have happened. Or, is it more likely that, you know,
we’ve got an accident, again, a sharp forward flexion load of the disc, which
is notorious for injuring disc. We’ve got that happening four months before.
We’ve got a patient who had what may well have been disc pain before the
accident. And a clinical course of at least some lower back pain in the interim,
between the accident and December when he’s in emerg with acute back pain.

  Now,
you know, what’s more likely? It’s pretty hard, in my view – and I’ve said this
several times – it’s not black-and-white, however, but it’s pretty hard in my
view to ignore or disregard the trauma of that accident in that process. I
think that’s — and then, you know, you throw in there the fact that he injured
his hip and was walking painfully and with a limp, it’s pretty hard to just
ignore all of that and say, no, no, that couldn’t possibly have played a role,
it must have been just a spontaneous thing.

  That’s
how I see it.

Q         — I
guess the good news is your diagnosis and prognosis is that it’s — the lower
back is —

A          The
discogenic part of his lower back, it — you know, it has a favourable
prognosis, assuming —

Q         Right.

A          –that
his gait improves. But, you know, he still has some other diagnostic issues
that need to be discovered

(Transcript,
pp. 34-39, ll. 47 -31)

[Emphasis added.]

[214]     Dr. Bishop
impressed the Court as a very knowledgeable and fair-minded professional who
formed his opinions carefully based on the information available to him. The
Court accepts his evidence and notes that there is no contrary opinion in
relation to the state of the Plaintiff’s spine pre- and post-accident, and in
particular no contrary opinion as to the nature of the injury and pain in his
lumbar spine. His opinion also takes into account the Plaintiff’s June 2009
visit to the chiropractor for pain that included the same general areas of his
spine where, post-accident, a disc herniation was observed.

Dr. Stephen Wiseman – a
psychiatrist

[215]     Dr. Wiseman
assessed the Plaintiff’s mental state and prepared a report. Dr. Wiseman
was qualified to provide expert opinion evidence in the field of psychiatry.
His credentials reveal that he has diverse experience in dealing with patients
suffering from a wide range of psychiatric problems. He is currently the
“physician lead/medical director” of the Complex Pain Centre at St. Paul’s
Hospital in Vancouver. He was called by the Plaintiff.

[216]     In his
report Dr. Wiseman set out an inventory of the Plaintiff’s symptoms at
pp. 3-4:

3. Mr. Pike did develop a
collection of post-traumatic stress symptoms after the accident and from his
history I assume these included:

a)     Intrusion symptoms including marked fear, nervousness,
and psychological arousal when exposed to traffic both as a driver and a
passenger;

b)     Additional intrusion symptoms including regular and
distressing accident-related nightmares and intrusive images/recollections of
the event when awake;

c)     Avoidance and efforts to avoid driving, such that he
made his apprentice take over the operation of the company truck;

d)     Frequent and persistent feelings of anger, associated
with preoccupation with the event and the other driver – along with a sense
that he was  “not the same person”;

e)     Increased arousal symptoms including markedly
increased vigilance when driving or being driven, panicky disruptions to his
sleep, and significant irritability and episodes of loss of temper.

[217]     Dr. Wiseman’s
opinion from his report at pp. 4-5 is:

In my opinion, Mr. Pike developed a collection of
significant and distressing post-traumatic stress symptoms directly on account
of his experience of the accident. These symptoms probably met the full DSM-5
criteria for Post-Traumatic Stress Disorder (PTSD) within the first year or so
of the accident, with the intrusion and avoidance symptoms in particular
settling down somewhat over time and with appropriate treatment.

4. Mr. Pike has also experienced other symptoms of
emotional distress that are not directly related to the trauma of the accident,
but rather to the circumstances he has found himself in subsequent to the
accident.

His stressors have clearly included musculoskeletal pain,
particularly evolving in his left hip and at this point remaining with him in a
chronic fashion. Mr. Pike relates his hip pain to struggling to remain at
work and ultimately going off work and losing his career trajectory as a
journeyman plumber. He endorses marked financial stressors on account of this,
leading to a diminished lifestyle and both relationship stress and marked
frustration. He also describes several efforts to treat his hip—which have,
each time, met with failure to sustain any clear benefit.

Mr. Pike finally describes becoming “heavily dependent”
on opioid painkillers for a period of time, with their use giving rise to
significant cognitive and physical side effects—and a further sense of lacking
control and experiencing distress.

Significant, fluctuating levels of frustration, anger,
sadness/depression, and worry are described by this man in the face of his
stressors. He recalls and describes, at times, a sense of reduced appetite,
fluctuations in his weight, and thoughts of death.

My sense from this material is that Mr. Pike has been
very sensitive to the stressors and frustrations in his life—particularly those
arising from his pain and subsequent financial situation. At times, the
depressive mood symptoms as described have likely reached the cross-sectional
severity to warrant a diagnosis of Major Depressive Disorder. On the other
hand, these symptoms have seemingly fluctuated and have recently improved (see
below) without the use of anti-depressant medication—which would be more in
keeping with a diagnosis of Adjustment Disorder.

Overall, it is my opinion that Mr. Pike has continued to
experience distressing and functionally- impairing emotional symptoms since the
accident. These symptoms have largely been depressive in nature, presenting
within the context of marked pain and life changes in a man who typically
operated with a clear sense of personal control and preference to plan ahead
prior to the accident.

It is probably best to conceptualize Mr. Pike’s
depressive mood symptoms and associated emotional distress as a chronic
Adjustment Disorder, with fluctuating episodes of more severe symptomatology to
the level of clinical depression at times.

[Emphasis added.]

[218]     Dr. Wiseman
noted at p. 5 of his report that “the biggest single issue impacting Mr. Pike’s
psychiatric health since the accident has been his left hip pain and associated
musculoskeletal issues which have prevented him from returning to his job.” He
indicated that he could not offer an opinion as to whether the Plaintiff would
have experienced similar pain and orthopaedic issues absent the accident.
However, he stated at that if it was found that the Plaintiff would have
suffered orthopedic difficulties in any evident, he likely would have suffered
from a degree of emotional distress, but it was Dr. Wiseman’s opinion that
any resulting emotional symptoms would have been substantially less severe than
those he has faced in the current scenario.

[219]     At the
time of his assessment of the Plaintiff, Dr. Wiseman was of the view that
he continued to suffer from residual symptoms of PTSD, including increased
vigilance and anxiety in traffic and occasional images of the accident.
However, his view (at pp. 5-6) was clearly that the Plaintiff “was not
facing significant functional impairment on account of these symptoms, and
these do not require direct targeting by any specific further treatment efforts
at this point.” In this regard, Dr. Wiseman noted that the Plaintiff is
not manifesting the more severe “neurovegetative” symptoms of a Major
Depressive Disorder, but rather ongoing symptoms of Adjustment Disorder. Dr. Wiseman’s
opinion is that the Plaintiff’s psychiatric condition is not at the point where
it can be considered independently disabling. His emotional symptoms are said
to be highly contextualized to his physical issues. His view was that the
Plaintiff’s condition was very tenuous, and with further physical issues,
enhanced pain and the associated life setbacks the Plaintiff could easily
regress psychiatrically.

[220]     Dr. Wiseman
concluded his report by recommending that certain of the Plaintiff’s
medications should be changed and that he continue to see Dr. Hopp on a
regular basis for “another twenty sessions before a review of further
requirements.”

[221]     On
cross-examination Dr. Wiseman’s opinions as stated in his report were not
substantially challenged. He indicated that he had seen the Plaintiff once to
do his assessment and reviewed the records and reports that he referenced. He
also agreed that the only history of the Plaintiff avoiding driving came from
the Plaintiff himself. He also agreed that it is most common that PTSD is most
severe at the beginning but he said there can also be delayed onset and
symptoms may arise later. He indicated that had the Plaintiff experienced
another traumatic event, including a subsequent car accident, after the
accident that would be important for him to know. Dr. Wiseman also agreed
that if the Plaintiff had made many driving trips between September 1, 2009,
and November 1, 2009, in the Lower Mainland that would be relevant to his
opinion. Dr. Wiseman confirmed his opinion that the Plaintiff’s PTSD
symptoms had improved significantly, that he did not consider them to be
bothering the Plaintiff in a functional way, and that they would not prevent
him from working or pursuing a new career.

[222]     Dr. Wiseman
impressed the Court as a very experienced psychiatrist with an extensive
background in assessing and treating individuals with chronic pain. I do not
regard the fact that the Plaintiff did not tell him about the minor motor
vehicle accident he experienced when Carly Pike was driving or the amount he
drove when he tried to return to work the first time to detract from the
substance of Dr. Wiseman’s assessment of the Plaintiff or his diagnoses.

Dr. Grace Hopp – The Plaintiff’s
treating psychologist

[223]     Dr. Hopp
received her doctorate in clinical psychology from the University of Victoria.
Her studies included a focus on neuropsychology, lifespan development and
aging. She has worked in various aspects of psychology, including a two year
part-time stint with Fraser Health to help establish a concussion clinic as
part of the Acquired Brain Injury Program.

[224]     Dr. Hopp
first saw the Plaintiff on December 28, 2011, and January 12, 2012, for an
initial intake. Among the many things that the Plaintiff reported to her was
how nervous he was as a passenger in a motor vehicle and how anxious he became
while driving. He reported that his anxiety interfered with driving related to
his work as a plumber and that when he returned to work in November 2009 he had
his apprentice drive when possible.

[225]     Dr. Hopp
performed a number of tests to assess the Plaintiff’s psychological
functioning, the extent of his PTSD symptoms and depression. She administered
the Pain Patient Profile, a self-report questionnaire specifically designed for
patients who live with chronic pain. She reported (at p. 7) that, “The
measure indicated that he experiences an average level of depression and
anxiety relative to others with chronic pain and he is less concerned about his
physical dysfunction than many pain patients.” Dr. Hopp regarded this to
be consistent with his reports about his daily life. In this regard, the
Plaintiff reported that he “feels dissatisfied by his current lifestyle;
irritable, frustrated, moody, discouraged and unhappy.”

[226]     In her
initial assessment Dr. Hopp noted that the Plaintiff “was highly motivated
to participate in psychological treatment with the goal of managing his pain
and reducing his overall psychological distress.” She identified a number of
specific goals for his treatment and indicated that the Plaintiff has made
significant progress in treatment overall. However, he “has periods of symptom
relapse related to increased stressors in his life marked by low mood and
increased anxiety.” The Plaintiff has attended psychological counselling
sessions since January 2012 on a monthly or as needed basis. She indicated that
her rate is $175 for a session of psychological treatment. As to the
Plaintiff’s present state, Dr. Hopp stated the following (at p. 8):

Despite the improvements he has
made in learning to manage the emotional consequences of his injury, Mr. Pike
continues to be more vulnerable to increased symptoms of depression and anxiety
when he suffers setbacks in his life, such as difficulties in his physical
rehabilitation, his vocational training, his financial situation, or his social
relationships. Consequently, he will have more difficulty coping with stress
than he did prior to his injury. As his stress level increases, sleep becomes
impaired and his ability to think clearly and to cope with symptoms of anxiety,
depression and pain declines further in a cycle of increased disability.

[227]     Dr. Hopp
recommended that the Plaintiff would benefit from access to on-going
psychological treatment throughout his life. Over the next five years she
recommended 12 treatment sessions per year. She also was of the view that as it
is expected that the Plaintiff will have difficulty coping with increased
depression and anxiety while he continues to have chronic pain, “providing
access to six sessions of psychological treatment each year for the remainder
of his life would be beneficial to help him cope”.

[228]     Dr. Hopp
concluded her report with her prognosis in relation to the Plaintiff. She
expressed that while he has made progress in meeting his treatment goals, he
remains vulnerable to increased symptoms of depression and anxiety while he
continues to experience chronic pain. He continues to experience increased
anxiety as a passenger or a driver in a motor vehicle. If he is exposed to
further trauma in the future he is vulnerable to more intense emotional
distress.

[229]     On Cross-examination,
Dr. Hopp revealed several inaccuracies in her report, including: that the
triage report from the hospital in relation to the Plaintiff on the day of the
accident referred to neck pain and not back pain as she reported; that Dr. Fyfe
reported that the Plaintiff was suffering from PTSD-like symptoms and not PTSD;
and that Dr. Hopp had assumed that the Plaintiff suffered a concussion in
the accident based on what he told her, which is a view not shared by others.

[230]     She agreed
that had the Plaintiff suffered traumatic events since the accident, including
a motor vehicle accident (referring to as the “fender bender” with Carly Pike
driving), that she would have wanted to know about that. She agreed the
Plaintiff’s anxiety was related to his incapacity and the pain he experienced
from injuries sustained in the accident, and also to riding in or driving a
motor vehicle. Dr. Hopp agreed that the Plaintiff’s psychological state
could improve with a return to a well-paying career and improvements in his
ability to enjoy sports and social interaction.

[231]     Although Dr. Hopp’s
background information and assumptions contained several inaccuracies, overall
her evidence accords with the testimony of the Plaintiff, others who know him
and the assessment and opinions of Dr. Wiseman, and I accept it. She has
had the benefit of treating the Plaintiff regularly since January 2012.

Jodi Fischer – a registered occupational
therapist

[232]     Ms. Fischer
is a certified life care planner and a registered occupational therapist. She
was qualified to give expert opinion evidence in relation to occupational
therapy, functional capacity and the evaluation and assessment of future care
costs.

[233]     She
assessed the Plaintiff on September 8, 2011, and wrote her first report on
September 16, 2011. This was after the arthroscopic surgery on the Plaintiff’s
left hip performed by Dr. Gilbart, but prior to the Birmingham replacement
surgery performed by Dr. Duncan. She assessed the Plaintiff again on April
7 and 8, 2014, and wrote her second report on April 29, 2014. I have read and
considered the contents of these reports. In particular, her more recent report
is relevant to the Plaintiff’s claim for various items related to his cost of
future care.

[234]     When Ms. Fischer
assessed the Plaintiff in April 2014 he indicated to her that he felt his
symptoms had reached a plateau about a year earlier. He reported the following
in relation to his current symptoms (at p. 8):

1.     Left Hip:
Since having hip surgery in April 2012, Mr. Pike feels “better.” He
estimates his function has improved by 50%, particularly his walking ability.
While he still has constant pain in the left groin region, it is less intense.
He continues to have frequent pain in the left thigh, side of the leg, and
occasionally his calf region.

2.     Low Back: Mr. Pike
continues to feel pain on the right side of his lower back. His back “locked
up” approximately three weeks ago, resulting in the need to take muscle
relaxants for 2 weeks. He is not entirely certain of the precipitating factor.
The only change in his daily activities was an increase in sitting demands, due
to spending more time on coursework. In the past week, his lower back symptoms
have returned to baseline.

3.     Neck/Upper
Back/Mid Back: He continues to have upper spinal pain when assuming neck and
back postures.

4.     Right Hip:
He occasionally feels right hip pain (in the posterior region). This pain is
significantly less limiting than his left hip pain. He no longer has right
thigh pain (as compared to when previously seen by the undersigned for
assessment in 2011).

[Underlining omitted.]

[235]     Ms. Fischer
noted that most days the Plaintiff walked continuously for 45-60 minutes as
part of his exercise program, experiencing increased stiffness in his back and
aggravation of his left hip afterwards. He was using a pool to exercise and was
also doing exercises at home daily to strengthen his core and upper body. In
her report Ms. Fischer reviewed the range of physical movements and
activities that the Plaintiff was able to do or not do. She also administered
many standardized tests and compared the Plaintiff’s measurements and scores to
accepted standards. Her key findings included that the Plaintiff’s “self
reports” on the MTAP 2 Questionnaire resulted in his actual observed physical
ability to be less than his perceived strength rating, indicating that he
over-estimated his strength ability to some extent. Normative comparison
indicated that he had a more optimistic view than others with musculoskeletal
disorders regarding his level of disability.

[236]     Physical
testing of the Plaintiff conducted by Ms. Fischer revealed many areas of
limitation and weakness, including: limited neck extension, trunk flexion caused
by lower back pain, straightening his back caused by left hip pain, significant
problems with squatting and inability to bear much weight on his left hip,
reduced hip flexion, negligible external rotation and locking in his left hip,
some problems with locking in his right hip, overhead and forward reaching
speeds mildly reduced and mildly reduced overhead range of motion later in the
day due to increased upper and mid back pain, mildly reduced low level of
reaching and reliance on his left thigh to rise resulting in increased pain in
his left hip, the need to walk around between tests to alleviate his left hip,
low back and mid back pain, asymmetrical weight bearing with more weight on his
right leg late in the day, a slow walking speed and a mild-left sided limp,
late in the day his left hip would “catch,” bilateral hip pain with continuous
walking, stair and ladder climbing caused increased left hip pain, unable to
kneel on his right knee because of the position required for his left leg,
inability to sustain a crouching position because of limitations from left hip
pain, inability to lift bilaterally due to asymmetrical weight bearing arising
from left hip and right knee pain due to over reliance on his right leg, a
left-sided limp with bilateral carrying of 30 lbs. and an inability to carry a
load of 40 lbs. due to left hip pain with similar problems noted in relation to
bilateral pulling and pushing, inability to sit for prolonged periods due to
increased left hip pain and an inability to stand for more than 45 minutes due
to his weight bearing becoming asymmetrical due to left hip pain.

[237]     Ms. Fischer
reviewed the physical requirements for a plumber based on the National
Occupational Classification (“NOC”) (#7251 Plumbers) and concluded (at p. 31)
that “Mr. Pike will never be able to return to this line of work given
severe limitations with crouching, kneeling, bending, prolonged standing, and
lifting and carrying”. She reviewed the NOC requirements that would include
golf course management (#0721.1 Facility Operations Managers). Her view was
that some of the jobs typically expected of a person in golf course management
may be beyond the Plaintiff if they involve lifting, or too much sitting or
standing without breaks. She noted that he is not capable of jobs with
repetitive lifting demands, even of a light nature.

[238]     Ms. Fischer
then set out her cost of future care analysis based on the functional testing
of the Plaintiff, her review of his home, and Dr. Duncan’s prognosis. Ms. Fischer
divided the Plaintiff’s future care needs into two sections: the first relating
to his current and future needs throughout his lifespan, taking into account a
move to a house and starting a family; the second addressing his needs up to
and including a total hip replacement, which may be required within the next
five years. An itemized list of these items is set out in Appendix B of her
second report (at pp. 49-52). I will address the specific items when I
consider what ought to be provided to the Plaintiff for cost of future care.

[239]     Generally
speaking, Ms. Fischer’s findings as to the Plaintiff’s functional capacity
were not shaken on cross-examination. Nor, in the main, were her opinions as to
future care. She did agree that the Plaintiff’s left hip pain was the most
functionally limiting based on her testing. She agreed in relation to the cost
of future care that future events are impossible to predict. She agreed that
she relied upon Dr. Duncan’s assessment of the Plaintiff’s left hip in her
report. When it was put to her that a total left hip replacement could
eliminate the Plaintiff’s need for future care, she pointed out that Dr. Duncan
did not address the issues with the Plaintiff’s right hip and lower back. She
agreed that she assumed the Plaintiff would purchase a house. While any
residence would require cleaning, she said she based her estimates on household
chores being shared equally between the Plaintiff and his wife, as this is what
he told her they did prior to the accident. When it was put to her that her
report assumes that the Plaintiff will not get any better in the next 20 to 25
years, her response was that if there is no change in his pain and he is able
to work a full day, he will not be able to assist with housekeeping, as it will
be challenging for him when he goes back to work.

[240]     It was
suggested to Ms. Fischer that it was highly speculative to assume the
Plaintiff would suffer a decline in function following further hip surgery
(which could be successful). She indicated that she relied on Dr. Duncan’s
opinion regarding a full hip replacement and then a second hip replacement
surgery 20 to 25 years later. She said the things she recommended in her report
are the things typically required by people with significant hip pathology. In
relation to compensation for a scooter and other items associated with limited
mobility, Ms. Fischer said that if he continues to have hip issues and
difficulties walking then he is not going to age like someone who does not have
hip pathology. She has included things he may need from age 38 onwards. The
items related to home repair and yard maintenance are included because this
report is meant to provide what he might need until he is 80. This assumes that
he does not have a hip surgery that makes him better.

[241]     Although
it is incumbent upon the Court to carefully scrutinize the items and services
recommended for the Plaintiff’s future care while applying the correct legal
principles, Ms. Fischer provided much useful information to the Court with
regard to the Plaintiff’s functional capacity as of April 2014. In this regard
she impressed the Court as a highly skilled and balanced professional who
employed the best available methodologies and current testing to assess the
Plaintiff’s physical capacity. She attempted to address his current and future
needs as at April 2014 and to provide useful recommendations for future care in
a very complex case, keeping in mind that the Plaintiff’s limitations arise not
only from his left hip, but also from his right hip and lower back. Based
primarily on Dr. Duncan’s opinion she endeavoured to address his future
needs with decline in function and following further left hip surgery. While
some of her recommendations in the further surgery scenario seem too generous
and somewhat far-fetched, it must be kept in mind that she was endeavouring to
address costs of future care in relation to contingent future events with many
variables.

Darren Benning – an economist

[242]     Mr. Benning,
an economist, was found to be qualified to provide expert opinion evidence on
the assessment, evaluation and quantification of economic loss. He has
extensive experience providing estimates of pecuniary damages in personal
injury and fatal injury claims. He was called by the Plaintiff.

[243]     In his
report (Exhibit 11, Tab 8A), Mr. Benning calculated past and future income
loss in this case based on several assumptions. The first was that, in the
absence of the accident and subject to a list of recognized contingencies, the
Plaintiff would have continued working as a journeyman plumber, earning an income
commensurate with those of an average BC male employed in this occupation
through to his retirement no later than age 65 years, which would have led to a
future income (present value) of $1,087,603. The second, in the alternative,
was in the absence of the accident that the Plaintiff would have started his
own plumbing business in 2015, and would have received earnings commensurate
with those of an average BC male plumbing contractor through to his retirement
no later than age 65 years, which would have led to a future income (present
value) of $1,361,814. The third was that as a result of injuries arising from
the accident, the Plaintiff has suffered income loss in the past and it has
been assumed that in the future the Plaintiff will start to pursue a career in
golf management by January 1, 2016, and will remain working in this occupation
through to his retirement no later than age 65 years. This assumes that he will
start at an entry level position and will be promoted to management either
seven or 10 years later. The Plaintiff’s expected earnings in golf management (present
value) would be $904,478 if he began on January 1, 2016, and was promoted to
this position after seven years; and $817,942 if he was promoted after 10
years. Because the Plaintiff became a journeyman plumber at age 33, whereas the
average is age 27, the earning stream numbers were lagged by six years.

[244]     In
calculating the Plaintiff’s past employment income loss (at p. 17), Mr. Benning
takes into account what the Plaintiff would have earned as per the average BC
plumber for the years 2009 to 2015. This results in a figure for gross income
loss, from which income taxes are deducted, in the amount of $206,364. The
Plaintiff was only in his second year of employment as a journeyman plumber
when the accident occurred. His actual T4 income for 2008 was $45,309, and in
2009, the year of the accident, it was $45,312.

[245]     In
calculating the Plaintiff’s future income loss Mr. Benning made
calculations based on the various scenarios, resulting in the following
amounts:

·       
Journeyman plumber vs. Golf management (promotion after seven
years) $183,126;

·       
Journeyman plumber vs. Golf management (promotion after ten
years) $269,662;

·       
Plumbing contractor vs. Golf management (promotion after seven
years) $457,336;

·       
Plumbing contractor v. Golf management (promotion after ten
years) $543,872.

[246]     Mr. Benning
provided an economic future income loss multiplier in this case of 16,653.

[247]     Mr. Benning
also provided a report (Exhibit 11, Tab 8B) that addresses the present value of
future cost of care for the Plaintiff based on the report of Ms. Fischer.
He explains (at p. 1) that, “Future cost of care multipliers are a
convenient, shorthand way of expressing the present value at a given reference
date of a future cost of care stream, where that stream is constant each year
in real (net-of-inflation) dollars.” He provides a detailed table of the
various items and services enumerated by Ms. Fischer with the applicable
multipliers. The cumulative lifetime multiplier as of the reference date is
28,082. Mr. Benning also indicates that where applicable he has added
GST/PST to the values suggested by Ms. Fischer, and current medications
are assumed to be required for the Plaintiff’s lifetime, with a shorter
duration resulting in a lower future cost of care estimate, all else remaining
equal. He also assumed, based on Ms. Fischer’s report, that after the
first 1.5 years the Plaintiff would move from his present condo to a house.

[248]     With
regard to Ms. Fischer’s category “Future Needs with Decline in Function
and Following Surgery” Mr. Benning notes:

…for the purposes of this report and pursuant to Ms. Fischer’s
recommendations, we have assumed that Mr. Pike will undergo his first
surgery in year 6 (five years after the reference date, at age 44), and his
second surgery 23 years later (the mid-point of 20-25 years). We assume that Mr. Pike
will start requesting the Adaptive Aids recommended by Ms. Fischer two
years prior to the first surgery.

With respect to the Mobility
Equipment (progressive need), we have assumed that Mr. Pike will start
requesting these items in the 21^st future year (20 years after the
reference date). We assume that Mr. Pike will change his vehicle every
five years. Given that the vehicle lift for scooter will be replaced every 10
years, we assume that Mr. Pike will incur additional costs for
reinstallation of the vehicle lift for the scooter.

[249]     Mr. Benning
notes in this report that he is, of course, not expressing any opinion as to
whether the Plaintiff requires these items and services or whether the costs
quoted by Ms. Fischer are accurate. The lump sum present value of future
cost of care expenses for the Plaintiff is estimated by Mr. Benning as
$297,305. This amount represents the total of her two sections, “Section I:
Current and future needs” and “Section II: Future needs with decline in
function and following surgery”.

[250]     In
cross-examination, Mr. Benning indicated that $170,322 of the future cost
of care expenses relate to the cost of the Plaintiff living in and maintaining
a house to the age of 80 years. With regard to Mr. Benning’s calculation
of the Plaintiff’s past income loss using the average income of plumbers in BC,
it was put to him that the Plaintiff only made 93 percent of that amount in
2008 and 2009 and his wage loss amount should be reduced by 6 percent or
$13,000. Mr. Benning said that one would not normally project lifetime
earnings based on a single or first year.

[251]     Challenged
on whether his calculations for a plumbing contractor (NOC-S: H013) were
correct, Mr. Benning referred to the Statistics Canada National Occupation
Classification and its inclusion of plumbing contractors, stating that it
provides an estimate. With regard to his analysis of the incomes of golf
managers, Mr. Benning indicated that he referenced the NOC-S: A141 –
Facility Operation and Maintenance Mangers and looked at the earnings of golf
course managers. He said it was not his assumption that it was hard to get
one’s foot in the door as management at a golf course. He was merely given two
scenarios to consider, one resulting in the attainment of a management position
at seven years and the other at ten years.

[252]     Mr. Benning
impressed the Court as a highly skilled economist with a great deal of
experience in his area of expertise. He was impeccably careful and even-handed
in incorporating the assumptions he was given with the applicable negative
contingencies. I accept his evidence and find it to be of great assistance to
the Court.

Kevin Turnbull – an economist

[253]     Mr. Turnbull
is also an economist, who was called by the Defendant. He specializes in labour
economics and routinely gives the type of evidence he gave in the present case.
He was held to be an expert in the assessment, valuation and quantification of
economic loss as it applies to personal injury claims.

[254]     Mr. Turnbull
reviewed the two reports of Mr. Benning and prepared his own report in
response (Exhibit 12, Tab 3). The main points arising from his report are:

·      
Although he did not review a copy of Ms. Fischer’s report,
he took issue with the assumption that the Plaintiff would be replacing his
vehicle every five years and having to install a vehicle lift for a scooter
when the average age of vehicles in Canada is approximately 10 to 12 years old.

·      
He considered the assumption that the Plaintiff would have earned
the average level of earnings for a journeyman plumber “may be somewhat
overstated” based on his prior years’ earnings, which he admitted included the
years the Plaintiff spent as an apprentice. He suggested that using the average
earnings for plumbers may overstate the Plaintiff’s potential for earning given
that in 2008 the Plaintiff’s actual earnings were 93 percent of those received
by males in BC who worked as full-time, full-year plumbers. He preferred a past
income loss figure based on 93 percent that reduced Mr. Benning’s estimate
for past income loss by approximately $13,000.

·      
He challenged Mr. Benning’s approach that had higher
earnings for self-employed plumbers as opposed to employed plumbers, his basic
premise being if that were the case by virtue of market forces there would be
no employed plumbers. He did agree that a self-employed plumber may be able to
attain a higher income if they operate a business with one or more employees,
but said based on a Statistics Canada study in 2007 only 12.1 percent of
plumbers were self-employed and of those, 88 percent were without employees.
Therefore, he was of the view that unless the Plaintiff intended to build up a
significant business with a number of employees, from an earnings projection
point of view the two alternatives of employment and self-employment are
basically identical.

·      
With regard to the Plaintiff’s post-accident earnings in golf
course management, he did not agree with Mr. Benning that the Plaintiff
would have to start at minimum wage and will not start work as a manager for
another seven or ten years. His view was that the Plaintiff with his training
may reasonably be placed in charge of a golf course upon graduation, or he will
be initially hired for a position that is higher than entry level, perhaps as a
lower level manager or supervisor. In his calculations he uses a 15 year
earning delay rather than the 20 years used by Mr. Benning. He assumes a
starting wage of $20/hr for the Plaintiff and that he will begin working as a
golf course manager five years after the valuation date of March 15, 2015.

[255]     Mr. Turnbull
concludes his report (at p. 9) with the following:

The figure at the bottom right of
Table 3 [his post-accident earnings based on the Plaintiff’s future in golf
management] is $1,067,620. This figure represents my estimate of the present
value of Mr. Pike’s post-accident future earnings. In Mr. Benning’s
Table 2A, the comparable absent accident income figure is $1,087,603. This
would imply a future loss of earnings estimate of about $20,000. Previously, I
suggested that the absent accident income should be reduced by 6% if it is
assumed that Mr. Pike would have had a below average level of earnings as
a plumber. If that reduction is applied to $1,087,603, then the result will be
an estimate that there is no future loss of earnings. Of course, higher future
loss estimates would arise if Mr. Benning’s Table 2B is employed (which
assumed that Mr. Pike would have had the earnings of a “plumbing
contractor”). However, as I stated previously, it is my opinion that this
earnings projection is only really applicable if it is found that Mr. Pike
would have become self-employed with a business that would have had a number of
employees.

[256]     On
cross-examination Mr. Turnbull agreed that he had not read Ms. Fischer’s
report before commenting on aspects of it captured in Mr. Benning’s cost
of future care report. He agreed that his calculation with regard to the
Plaintiff’s earnings in 2009 would be inaccurate depending on how he
interpreted the phrase “reduced modified duties” used by Mr. Benning. If
it meant that the Plaintiff had less hours or a lower pay after the accident,
he recognized that the Plaintiff’s 2009 income may have been higher absent the
accident. Mr. Turnbull also agreed that he probably did not review both
pages of the NOC-S: H013 statistics before critiquing Mr. Benning’s
report, as on its second page it clearly states “This unit group includes
plumbing and other pipefitting trade contractors who own and operate their own
businesses.” He agreed he could better assist the court if he had reviewed all
the pages of the classification. Further, it became clear that apart from the
description of golf management skills learned in the Plaintiff’s program at
Selkirk College, Mr. Turnbull did not do any research into what golf managers
do. Thus, his view that the Plaintiff could go right from graduating from the
program to a lower level management position in golf management was his own
assumption, as was his assumption that the Plaintiff could start at $20/hr.

[257]     The Court
finds that Mr. Turnbull’s analysis was not particularly carefully done. He
did not read Ms. Fischer’s report and both pages of the correct NOC
classification for plumbing contractors. His position that the Plaintiff’s past
income loss ought to be based on an amount less than the average BC plumber
when the Plaintiff had so few years as a journeyman plumber under his belt
before the accident is ill-founded given that the Plaintiff had been with the
same plumbing company since 2002, received regular raises and had worked his
way up to a qualified journeyman plumber. It also does not accord with the very
positive way the Plaintiff performed his plumbing work according to his former
boss and co-workers, which was information that was not available to Mr. Turnbull.

[258]     The Court
does not accept Mr. Turnbull’s assumption without research that the
Plaintiff could start at a lower level golf management position immediately
upon graduation. While many things are possible, based on the evidence before
the Court, this seems highly unlikely. It seems more likely that he will be
fortunate to land a position at a golf course at approximately $15/hr and that
he may have to volunteer for a time to attain that position. That assumption
does also not factor in the opinions of Ms. Fischer that such a position,
depending on its requirements, may be beyond the physical capacity of the
Plaintiff.

[259]     However, Mr. Turnbull’s
points about the rate of vehicle replacement and lift installation are of
assistance, as is his highlighting of the future care costs associated with the
Plaintiff’s prior plan to move from the condo into a house. As I do not accept
that there is sufficient evidence to support the Plaintiff’s aspiration to
establish himself as a plumbing contractor in the future I will refrain from
comment on that aspect of Mr. Benning’s and Mr. Turnbull’s reports.

[260]     Generally
speaking, where the evidence of Mr. Benning and Mr. Turnbull differ,
the Court accepts that of Mr. Benning. But I do take into account specific
points raised by Mr. Turnbull with regard to cost of future care.

Causation

The Plaintiff’s Position

[261]     The
Plaintiff submits that he has established that the Defendant’s negligence in
relation to the accident caused his injuries. Specifically, he submits that the
problems with his left hip were rendered symptomatic by the force of the
accident, causing trauma to his already degenerated left hip joint.

[262]     The
Plaintiff submits that the evidence of Dr. Duncan and Dr. Gilbart,
when combined with his testimony and that of his wife regarding his complaint
of sharp left hip pain while waiting to be picked up outside the hospital the
day of the accident, establish causation. The Plaintiff submits that the
evidence establishes the accident as the cause of his left hip pain and its
further degeneration that ultimately required two surgeries and still is not
successfully resolved.

[263]     The
Plaintiff also submits that his back was largely without problems prior to the
accident and that his one visit to the chiropractor, Dr. Olson, two months
prior to the accident as a result of pain in his lower back extending into his
right hip ought not to detract from a finding that the force and trauma to his
back from the accident rendered it symptomatic. Specifically, the Plaintiff’s
neck and upper back were most problematic immediately after the accident with
some complaints of pain in his mid and low back. With time the discomfort in
his mid and low back became more prominent, although he continues to have some
problems in his upper back.

[264]     The
Plaintiff submits that the expert opinion evidence of Dr. Bishop combined
with the testimony of the Plaintiff and his medical history before and after
the accident, establishes that the trauma from the force of the accident caused
his disc pathology in his upper, mid and low back. The evidence of Ms. Fischer,
specifically her functional assessment of the physical abilities and
limitations of the Plaintiff since the accident, supports the significant
limitations imposed upon him by his back and left hip injuries.

[265]     In
addition the Plaintiff submits that the evidence of family, friends and
co-workers who knew him before the accident as a well-adjusted, relaxed, happy
individual who was socially well adjusted and a hard, reliable and
conscientious worker, establishes the devastating effect of accident upon him.

[266]     As well,
the evidence of Dr. Wiseman is that the Plaintiff has an adjustment
disorder arising from his underlying physical condition as a result of injuries
he sustained in the accident; and that his condition could degenerate into a
depressive disorder. Both Dr. Wiseman and Dr. Hopp consider that the
Plaintiff suffered symptoms of PTSD after the accident. His continued
counselling and treatment with Dr. Hopp has assisted him in making some
progress in terms of insight into his condition and techniques to help him
manage, but she regards his progress as somewhat tenuous, and is of the view
that he will continue to need counselling and treatment to manage. The
Plaintiff has taken a variety of pain and anti-depressant medications and
continues to do so to the time of trial. He continues to have problems managing
his anger, is socially withdrawn and experiences considerable anxiety while
driving, none of which he experienced prior to the accident.

The Defendant’s Position

[267]     The Defendant’s
position is that the only injuries suffered by the Plaintiff in the accident
were a moderate soft tissue injury to his neck and upper back, and an
aggravation of a pre-existing condition in his low back. This position is based
on: the fact that the Plaintiff had pre-existing progressive degenerative
changes in both hips that would have inevitably become symptomatic absent
trauma; a lack of contemporaneous left hip joint complaints to the Plaintiff’s
medical care givers; the views of both Dr. Duncan and Dr. Leith, that
in the majority of cases degenerative hips present with pain in the absence of
initiating events; the fact that other events after the accident were potential
initiating events, namely his return to work September 1, 2009 and his fall getting
out of bed on November 2, 2009, given that the Plaintiff had no “pattern of
complaints” relative to his left hip when he first returned to work after the
accident or commenced physiotherapy on September 24, 2009; the fact that
several months after his left hip became symptomatic his right hip did as well,
which is consistent with the left hip becoming symptomatic absent the accident;
and the Plaintiff ‘s pre-existing low back and right hip pain, which he had on
June 18, 2009 when he went to the chiropractor, Dr. Olson.

[268]     Alternatively,
the Defendant submits even if the Court were to discount the evidence above,
the Plaintiff’s case at its best is according to Dr. Duncan, who
acknowledged that even absent the accident the degenerative changes in the Plaintiff’s
left hip (and potentially his right hip also) would have become symptomatic in five
to ten years.

The Law

[269]     The test
for causation is the “but for” test. The plaintiff must establish on a balance
of probabilities that “but for” the defendant’s negligence, the injury would
not have occurred: Clements v. Clements, 2012 SCC 32 at para. 8; Ediger
v. Johnston, 2013 SCC 18 at para. 28. Inherent in the phrase “but for”
is the requirement that the defendant’s negligence was necessary to bring about
the injury, meaning that it would not have occurred absent the defendant’s
negligence. The “but-for” test recognizes that compensation for negligent
conduct should only be made where a substantial connection between the injury
and the defendant’s conduct is present: Resurfice Corp. v. Hanke, 2007
SCC 7 at para. 23. It ensures that a defendant will not be held liable for
the plaintiff’s injuries when they may have been due to factors unconnected to
the defendant.

[270]     However,
the defendant’s negligence need not be the sole cause of the injury so long as
it is part of the cause beyond the range of de minimus. Causation must
be applied in a robust and common sense fashion and need not be determined by
scientific precision: Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17;
Farrant v. Laktin, 2011 BCCA 336 at para. 9.

[271]     The most
basic principle of tort law is that the plaintiff must be placed in the
position he or she would have been if not for the defendant’s negligence, no
better or worse: Blackwater v. Plint, 2005 SCC 58 at para. 78.
Tortfeasors must take their victims as they find them, even if the plaintiff’s
injuries are more severe than they would be for a normal person (the thin skull
rule). But the defendant need not compensate the plaintiff for any debilitating
effects of a pre-existing condition which the plaintiff would have experienced
anyway (the crumbling skull rule): Athey at paras. 32-35. More
specifically, as the Supreme Court of Canada stated at para. 35 of Athey:

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. The defendant is liable for the additional damage but
not the pre-existing damage:  Cooper-Stephenson, supra, at
pp. 779-780 and John Munkman, Damages for Personal Injuries and Death
(9th ed. 1993), at pp. 39-40. Likewise, if there is a measurable risk that
the pre-existing condition would have detrimentally affected the plaintiff in
the future, regardless of the defendant’s negligence, then this can be taken
into account in reducing the overall award:  Graham v. Rourke, 
supra; Malec v. J. C. Hutton Proprietary Ltd., supra;
Cooper-Stephenson, supra, at pp. 851-852. This is consistent with
the general rule that the plaintiff must be returned to the position he would
have been in, with all of its attendant risks and shortcomings, and not a
better position.

[Emphasis in
original.]

[272]     A
“crumbling skull” determination rests on the facts as found by the trial judge:
Athey at para. 36.

[273]     With
regard to the psychological/psychiatric injuries sustained by the plaintiff,
the principles to be applied in assessing such claims are summarized by Mr. Justice
Lambert in Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318 at paras. 12-13
(C.A.).

[274]     Also
worthy of note is that when the psychiatric injury arises as consequence of
physical injury caused by the defendant, the concept of “reasonable
foreseeability” is subject to a qualification. As Madam Justice Bennett stated
in Hussack v. Chilliwack School District No. 33, 2011 BCCA 258 at para. 74:

…where the psychiatric injury is
consequential to the physical injury for which the defendant is responsible,
the defendant is also responsible for the psychiatric injury even if this
injury was unforeseeable. See White v. Chief Constable of South Yorkshire
Police, [1999] 2 A.C. 455 at 470, Varga v. John Labbatt, [1956] O.R.
1007, 6 D.L.R. (2d) 336 (H.C.);Yoshikawa v. Yu (1996) 21 B.C.L.R. (3d)
318, 73 B.C.A.C. (C.A.); Edwards v. Marsden, 2004 BCSC 590; Samuel v.
Levi, 2008 BCSC 1447.

Analysis and findings regarding causation

[275]     The Court
finds that the Plaintiff has established on a balance of probabilities that the
Defendant’s negligence caused injuries to his neck, back and left hip. But for
the Defendant’s negligence, these injuries would not have occurred. These
findings are supported by the evidence of the Plaintiff; his wife, Carly Pike;
and the expert medical opinions of Dr. Gilbart, Dr. Duncan and Dr. Bishop.

[276]     In
particular, the evidence of Dr. Bishop with regard to injury to the
Plaintiff’s back was that while he could not definitively determine that the
disc protrusions he observed in the Plaintiff’s spine were causally related to
the accident, his opinion was that the accident played a role in making the
herniated discs in the Plaintiff’s cervical and thoracic spine painful. His
opinion was that the Plaintiff’s lumbar disc herniation was causally connected
to the accident. Whether it had happened in June 2009 just prior to the
Plaintiff going to the chiropractor or as a result of the accident, either way
the Plaintiff had a weak disc at L4/5 before the accident and the accident
added to his disc pathology. Further, either the injury to that disc was a
direct result of the flexion injury in the trauma of the accident or as a
secondary consequence of all the biometric abnormalities his spine was
subjected to as a result of the injury to his left hip.

[277]     In
particular, the evidence of Dr. Duncan (corroborated by aspects of the
evidence of Dr. Gilbart) was that the Plaintiff had bilateral,
asymptomatic mild degeneration affecting each hip that was rendered symptomatic
in the left hip as a result of the impact of the accident – an aggravation of a
pre-existing asymptomatic condition. This led to synovitis, a chronic
inflammation of the lining of the left hip, and increasing degeneration that
has required two surgical interventions. The accident was the inciting event
and it would not have taken much force to aggravate his fragile left hip.

[278]     Both Dr. Duncan
and Dr. Gilbart were of the view that the Plaintiff’s experience of pain
after the accident was important to indicate injury to the hip arising from the
accident, but thereafter his pain did not have to be continuous for the further
degeneration to have been triggered by the trauma to the joint from the accident.
As previously stated, insofar as their opinions hinge on the Plaintiff’s
evidence and that of his wife regarding his experiencing a sharp pain in the
area of his left hip or groin as he was standing outside the hospital emergency
department several hours after the accident, the Court accepts that evidence.

[279]     The Court
finds that the Plaintiff is the classic “crumbling skull” case insofar as prior
to the accident he had an arthritic degenerative condition in both hips, but of
particular relevance to this case, in his left hip. Even the evidence of Dr. Leith,
which the Court does not accept regarding the issue of causation, confirms the
existence of significant degeneration in both the Plaintiff’s hips prior to the
accident. The evidence of Dr. Duncan was that absent the accident the
Plaintiff’s left hip would have remained asymptomatic, as the right had, “for a
number of years, perhaps five to ten.”

[280]     The
post-accident deterioration of the Plaintiff’s mental health is clearly
delineated in the evidence of the Plaintiff and those who know him and his
reports to Dr. Fyfe, in conjunction with the assessment and diagnoses by Dr. Wiseman
and treatment by Dr. Hopp. It was and continues to be caused by the
injuries he sustained in the accident, most prominently the injury to his left
hip that has resulted in two surgeries, years of pain and physical limitation.

[281]     Considering
the principles set out in Yoshikawa, the genuine nature of the
Plaintiff’s deteriorated mental health is without question. He has been very
motivated to engage in psychological treatments and has done so regularly, and
he clearly desires to be pain free and resume his former lifestyle and employment.
There are several objective root causes identified in his left hip and low back
by Dr. Duncan and Dr. Bishop and attributed to the accident for the
pain that has undermined his mental health. Based on Hussack the
Defendant is also responsible for this injury.

[282]     Therefore,
the Court finds that the injury to the Plaintiff’s left hip was caused by
trauma from the accident; the injuries to his spine, in particular his upper
and low back, were caused by trauma from the accident; and his deteriorated
mental health is directly related to those injuries, primarily the injury to
his left hip.

Contingencies

[283]     In the
present case the Court must consider the issue of contingencies and whether, in
the absence of the accident, pre-existing conditions would have had a
detrimental impact on the Plaintiff’s life.

[284]     If there
is a measurable risk that a pre-existing condition would have detrimentally
affected the Plaintiff in the future, then this is to be taken into account in
reducing the overall award: Athey at para. 35 (as quoted above).
This is to prevent a plaintiff from being compensated by the defendant in a
manner that returns him or her to a better position than they would have been
absent the accident, as opposed to their original position with all of its
inherent risks.

[285]     In T.W.N.A.
v. Canada (Ministry of Indian Affairs), 2003 BCCA 670, Mr. Justice
Smith, writing for a five-judge panel of the Court of Appeal, stated:

[48]       
The trial judge’s misunderstanding of the thin skull and crumbling skull rules
led him into further error in paragraph 301, quoted above. It was not correct
to say that the alleged non-tortious causal factors were irrelevant unless they
had already become manifest in a disabling condition and unless the defendants
could prove that they would have inevitably led to the plaintiffs’ present
conditions. Whether manifest or not, a weakness inherent in a plaintiff that
might realistically cause or contribute to the loss claimed regardless of the
tort is relevant to the assessment of damages. It is a contingency that should
be accounted for in the award. Moreover, such a contingency does not have to be
proven to a certainty. Rather, it should be given weight according to its
relative likelihood.

[286]     Mr. Justice
Pearlman considered this issue in Bouchard v. Brown Bros. Motor Lease Canada
Ltd., 2011 BCSC 762. In Bouchard the plaintiff had evidence of
chronic, pre-existing disc degeneration at the lumbosacral level of his back. Mr. Justice
Pearlman concluded at para. 130 that the defendant had established that
there was a measurable risk that the plaintiff’s degenerative condition would
have detrimentally impacted him absent the accident. However, there was no such
risk that the plaintiff would have suffered his upper back and neck injuries
absent the accident. On the basis of this evidence, Mr. Justice Pearlman
applied a 40 percent discount to all heads of damages.

[287]     On appeal,
in Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2012 BCCA 331 [Bouchard
BCCA], Madam Justice Newbury, writing for the Court of Appeal, reduced the
discount to 20 percent with the following reasons:

[20]        I agree that
it was open to the judge to reduce those damages which were awarded in respect
of future loss, to reflect the possibility that “ultimately”, Mr. Bouchard
would in any event have experienced serious lumbar problems. There was,
however, no evidence to suggest that absent the 2005 accident, Mr. Bouchard
would have experienced serious and symptomatic degeneration of the spine at
the age of 31 (his age at the date of trial) or within a brief time
thereafter. Indeed, all the expert evidence suggested such deterioration occurs
gradually, subject to specific incidents such as the one that occurred in
October 2007. Dr. Hepburn used the word “ultimately” and was not asked to elaborate.
Had he been asked, I expect he would have said that one cannot predict with
certainty at what age disc degeneration would (or might) have become
symptomatic and disabling to Mr. Bouchard, or even that it would
necessarily have done so by a particular age.

[21]        Similarly, the
trial judge did not describe any time line over which he found there was a 40%
chance Mr. Bouchard’s spine would have degenerated to its present state. Obviously,
the process could not be projected with exactitude, but the reduction of
damages by 40% suggests a very steep upward line on a graph. That line is
contrary to the notion of gradual deterioration. If there was a 40% chance Mr. Bouchard
would have deteriorated to his present condition by, say, age 50, the chance
between ages 31 and 50 would have been less than 40%. This must as a matter of
logic be reflected in the percentage by which the damages are reduced.

[23]        I am also of
the view that the trial judge erred in applying the 40% reduction to all
heads of damage, including those that refer only to past loss and expenses. Obviously,
the damages given for past income loss and special damages would not be
affected by the future contingency posited by the trial judge. As for
non-pecuniary damages, since the trial judge did not consider the contingency
in his initial assessment of the award of $160,000, I am of the view that this
court’s comments at para. 25 of York v. Johnston (1997) 37 B.C.L.R.
(3d) 235 are not applicable. There is authority for reducing damages under this
head to reflect a pre-existing condition: see Zacharas v. Leys 2005 BCCA
560, at paras. 25-6. I would therefore also reduce the award for
non-pecuniary damages by 20% rather than 40%.

[Emphasis added in para. 21.]

[288]     The
Plaintiff’s position is that there is insufficient evidence to permit the Court
to conclude that absent the accident the Plaintiff’s back or his emotional
and/or psychological condition would have caused him to become disabled in the
future.

[289]     With
regard to the Plaintiff’s left hip, it is submitted that there is evidence to
support a finding that its condition would not have led to ongoing future
disability, absent the accident. Alternatively, the Plaintiff submits that in
the event the Court finds the condition of his left hip was such that absent
the accident he would have suffered future disability, then the appropriate
discount to damages for future losses would be five percent, reflecting the
possibility referred to by Dr. Duncan of the failure rate for the
Birmingham hip resurfacing technique.

[290]     Further,
it is the Plaintiff’s position that any discount to address this contingency
ought only to be applied to damage awards for loss of future capacity and cost
of future care.

[291]     On the
other hand, the Defendant submits that because Dr. Duncan’s opinion was
that the Plaintiff’s left hip (and potentially his right hip) would have become
symptomatic within five to ten years, then the Court should pick the mid-point
– 7.5 years – and count forward 7.5 years from the date of the accident (August
2009 to approximately the end of December 2016) and assess damages to end at
that point, applying that approach to all heads of damages.

[292]     With
respect, I am of the approach suggested by the Defendant is not correct. It
posits an arbitrary cut-off point for damage awards that runs contrary to the
decided cases, such as Bouchard BCCA and T.W.N.A., which assess a
percentage-based reduction that reflects the measurable risk that a plaintiff’s
degenerative condition would have detrimentally impacted the plaintiff absent
the accident. It also ignores injuries the Plaintiff suffered in the accident
to his back and neck, his chronic pain, depression and psychological and
emotional issues, all of which were caused by the accident, and the fact that
his continuing pain and disability are not limited to his left hip joint.

[293]     It is
clear that courts have struggled to make fair and appropriate reductions in
such circumstances. In Yannacopoulos v. Cronk, 2015 BCSC 1154, Madam
Justice Ross concluded such a reduction was appropriate and reviewed recent
determinations of this issue in this Court:

[71]         In Hoy
v. Williams, 2014 BCSC 234 [Hoy], a 15% reduction was assessed. The
court noted the plaintiff’s excellent physical condition before the accidents
as a relevant consideration in limiting the reduction. In Olynyk v. Turner,
2012 BCSC 1138 [Olynyk], the court concluded that there was a 60%
likelihood that the plaintiff would have experienced the same symptoms he now
experiences in ten years in any event. A reduction of 30% was assessed. In Filsinger
v. ICBC, 2009 BCSC 232 [Filsinger], a reduction of 20% was applied
to account for the pre-existing condition. In that case the plaintiff’s
pre-existing back condition was quiescent at the time of the accident but was
found to be likely to manifest at some time in the future. The Court of Appeal,
in Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2012 BCCA 331,
reduced a 40% deduction to 20% noting that the trial judge had failed to
address the timeline over which the expected future degeneration would likely
occur and to account for such a timeline in the percentage by which damages are
reduced. In Johnson v. Kitchener, 2012 BCSC 1796, a 10% deduction was
assessed in circumstances in which the plaintiff had degeneration of his neck
and back prior to the accident but was not symptomatic. There was some evidence
that his neck would have become symptomatic without the accident but it was
unclear when and how debilitating his symptoms would have been.

[72]        
In the present case, Mr. Yannacopoulos was not asymptomatic at the time of
the Accident. He had been having episodes of back pain similar to those he
experienced post-Accident since 2002. His weight caused constant strain on his
spine and soft tissue. I have concluded that the Accident accelerated a
degenerative process that was well established and progressive. However, it is
not possible to estimate how long it would have taken, absent the Accident, for
Mr. Yannacopoulos’ condition to reach the state he was in after the
Accident. In all of the circumstances I have concluded that a 25% deduction is
appropriate.

[294]     In Hoy
v. Williams, 2014 BCSC 234, Mr. Justice Kent considered this issue and
at para. 130 made reference to two cases, Johal v. Meyede, 2013
BCSC 2381, and Eblaghie v. Lee, 2010 BCSC 703, where the medical
evidence did not support the conclusion that the plaintiff’s pre-accident
degenerative changes would worsen or be anything other than asymptomatic until well
into old age. In both cases no discount was made.

[295]     Therefore,
depending on the nature of the pre-existing condition, the likelihood of it
becoming symptomatic and to what extent, as well as the time frame in which
that was likely to occur, the range of such reductions is from zero to perhaps
40 percent or more.

[296]     In the
present case I find that there is no evidence to permit the Court to conclude
that the state of the Plaintiff’s mental health pre-accident would have caused
him to become disabled in the future. To the contrary, there is every
indication that the Plaintiff was mentally and emotionally stable before the
accident.

[297]     Without
the accident causing or severely aggravating the disc in his lumbar spine, the
other disc protrusions may have remained asymptomatic or resolved over time
without surgery as Dr. Bishop indicated occurred in 85 percent of cases.
However, based on the evidence of Dr. Bishop that the Plaintiff had a weak
disc at L4/5 before the accident that could have herniated in June 2009 when he
went to see his chiropractor with pain in that area or as a result of the
trauma of the accident, I find that the Plaintiff did have a pre-existing
condition in his lumbar spine that would have become symptomatic absent the
accident. The same is true to a lesser extent with regard to his cervical and
thoracic spine.

[298]     Turning to
the Plaintiff’s hips, there is evidence that absent the accident both of the
Plaintiff’s hips were likely to become compromised by arthritic degeneration to
the extent that surgery would be required at some point in the future. Although
the Plaintiff had seen the chiropractor, Dr. Olson, two months prior to
the accident for significant low back and right hip pain, his left hip had been
asymptomatic, and otherwise it appears his right hip had also been
asymptomatic. There is no evidence before the Court as to how likely or when
the Plaintiff would have required surgical intervention in relation to his
right hip.

[299]     I accept
that the arthritic degeneration in the Plaintiff’s left hip would have led to
ongoing future disability, absent the accident. The best evidence in relation
to his left hip is that of Dr. Duncan, who stated that absent the accident
it was likely to remain asymptomatic, as his right side had, for a number of
years; “perhaps five to ten.” Once a hip becomes symptomatic in the manner
described by Dr. Duncan it appears surgical remediation is required.

[300]     The
Plaintiff was 33 years old in August 2009 when the accident occurred. Absent
the accident, the extent to which in the future the Plaintiff may have
continued to play baseball with the Dukes, which undoubtedly placed
considerable strain on his back and hips, or engaged in the rigours of his work
as a journeyman plumber that would have contributed to accelerating the deterioration
of his hips, in particular his left hip, is unknown.

[301]     In August
2019, ten years after the accident, the Plaintiff will be 43 years of age. It
seems very likely by this time, absent the accident, that he would have had
remedial surgery on his left hip, possibly both his hips. Whether the future
surgery would be a Birmingham resurfacing or a total hip replacement would
depend on the degree of degeneration in the hip prior to surgery and
potentially, the age of the Plaintiff at the time. Given his relatively young
age of 43, the surgical intervention most likely to be tried first would be
arthroscopic surgery, as opposed to a Birmingham resurfacing or a full hip
replacement. Either way, he likely would not have had the trauma from the
accident to his spine or his hips to contend with. Each of these procedures
undoubtedly has risks of poor outcomes or complications associated with them.
In this regard the only evidence before the Court is that the failure rate of
the Birmingham resurfacing is about five percent according to Dr. Duncan.

[302]     Therefore,
in terms of a time line it appears that the Plaintiff’s hips, in particular his
left hip, would have deteriorated over a period of approximately ten years from
August 2009. In the likely event that remedial surgery was successful he would
then have faced further gradual deterioration of the replacement parts over
time and potentially further surgeries when he was older.

[303]     Taking
into account all of the evidence, I find that absent the accident there was no
measurable risk that the Plaintiff would have suffered his mental health
issues, a slight measurable risk that he would have gone on to suffer problems
with discs in his cervical and thoracic spine, a significant measurable risk
that he would have gone on to suffer problems with his lumbar spine at L4/5 and
his right hip, and a very significant measurable risk that he would have
suffered serious problems with his left hip. I find that the appropriate
percentage discount to apply to the damage awards is 20 percent.

[304]     It is
appropriate to apply this reduction to the award for future loss of capacity
and cost of future care; and also to the award for non-pecuniary damages, based
on Zacharias v. Leys, 2005 BCCA 560.

Damages

Non-Pecuniary Damages

[305]     Non-pecuniary
damages are awarded to compensate the plaintiff for pain, suffering, loss of
enjoyment of life and loss of amenities. The compensation awarded should be
fair to all parties, and fairness is measured against awards made in comparable
cases. But such cases, though helpful, serve only as a rough guide. Each case
depends on its own unique facts: Trites v. Penner, 2010 BCSC 882 at paras. 188-189.

[306]     In Lindal
v. Lindal, [1981] 2 S.C.R. 629, Dickson J. (as he then was) wrote for the
Supreme Court of Canada as follows (at p. 637):

Thus the amount of an award for
non-pecuniary damage should not depend alone upon the seriousness of the injury
but upon its ability to ameliorate the condition of the victim considering his
or her particular situation. It therefore will not follow that in considering
what part of the maximum should be awarded the gravity of the injury alone will
be determinative. An appreciation of the individual’s loss is key and the “need
for solace will not necessarily correlate with the seriousness of the injury”
(Cooper-Stephenson and Saunders, Personal Injury Damages in Canada (1981), at
p. 373). In dealing with an award of this nature it will be impossible to
develop a “tariff”. An award will vary in each case “to meet the specific
circumstances of the individual case” (Thornton at p. 284 of S.C.R.).

[307]     In Stapley
v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined the factors to be
considered when assessing non-pecuniary damages at para. 46:

The inexhaustive list of common factors cited in Boyd [v.
Harris, 2004 BCCA 146] 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 BCCA
54).

[308]     The
assessment of non-pecuniary damages is necessarily influenced by the individual
plaintiff’s personal experiences in dealing with his or her injuries and their
consequences, and the plaintiff’s ability to articulate that experience: Dilello
v. Montgomery, 2005 BCCA 56 at para. 25. Courts must be cautious when
there is little or no objective evidence of continuing injury, and complaints
of pain persist and extend beyond the usual recovery period: Price v.
Kostryba (1982), 70 B.C.L.R. 397 (S.C.).

[309]     In the
present case, the Plaintiff seeks an award for non-pecuniary damages in the
amount of $225,000 based on the testimony of witnesses and the body of medical
evidence that supports his continuing claims of pain and reduced physical
abilities. Given that the Defendant disputed causation in relation to any
injury to the Plaintiff’s left hip, the Defendant submits that the Plaintiff is
entitled to damages for a moderate soft tissue injury to his neck, upper back
and an aggravation of a pre-existing injury in his low back. The Defendant’s
view is that the problems with the Plaintiff’s left hip altered the mechanics
of his back. Hence, the Defendant provided the Court with cases with
non-pecuniary damage awards ranging from $15,000 to $35,000.

[310]     Based on
the Court’s finding that the Plaintiff has established causation for his
injuries arising from the accident, including to his low back and left hip, the
Court will proceed to consider the Stapley factors in the context of
those factual circumstances. The evidence discloses that the accident has had a
profoundly negative effect on almost every aspect of the Plaintiff’s life:
physical, emotional, marital, family relationships, occupation, employability,
recreational, and social. He was a young man of 33 when the accident occurred.
The only aspect that remains unaffected is his mental ability. However, his
ability to apply himself mentally is affected indirectly by the difficulty he
experiences remaining in one position for a lengthy period of time, and by his
continuing pain and depression.

[311]     Physically,
the Plaintiff has been reduced from a high functioning athlete capable of
working in a very physically demanding job as a journeyman plumber to someone
who is unable to participate in sports or work in a job that places any
physical demands upon him or requires him to maintain one position for any
length of time. He has difficulties with most activities that engage his back
or left hip, even simple ones like positioning a child’s car seat in a vehicle.
His activities with his wife are undercut with his worry about how long he will
be away from home, how far he will have to walk and what he may have to carry.
He experiences pain on a daily basis, for which he relies on an opioid pain
killer (Nucynta) and is constantly adjusting his posture and position in an
effort to find a more comfortable position.

[312]     Emotionally,
the Plaintiff was described by all the witnesses who knew him before the
accident as a happy-go-lucky, socially engaged and generous person. He had a
plan for his life consistent with his upbeat personality. Since the accident he
has become socially withdrawn, irritable, and inclined to hostile arguments and
angry outbursts. He is plagued with feelings of inadequacy and has at times
contemplated suicide. He also developed PTSD symptoms and remains very anxious
and hyper-vigilant when in a motor vehicle, either as a driver or a passenger.

[313]     Not
surprisingly the Plaintiff’s marriage, which was happy and appeared secure
before the accident, has been placed under very considerable stress and strain
since, due to his pain, physical limitations and disability, anger and
irritability, more reclusive nature, his feelings of inadequacy and loss of
control. Although the Plaintiff and his wife are still together and have a
newborn child, it is clear that their relationship is still very precarious and
may well not survive.

[314]     The
Plaintiff comes from a close and supportive family. His parents and brother are
still there for him. But since the accident his previously easygoing and
pleasant relationships have been replaced by strained ones. His family are wary
of his moods and often feel like they are “walking on eggshells” around him.
Family dinners are cut short. He and his brother Steve used to play sports
together, including on the same fast ball team, and they can no longer do that.
Steven Pike reported that even taking the Plaintiff to a hockey game is
problematic as he can neither sit nor stand for the length of the game. The
Plaintiff has had to rely on his mother and brother to do complete renovations
in his own home and do other chores that he would have done himself prior to
the accident. His mother goes to great lengths to engage him in small tasks he
can manage to encourage him to feel useful.

[315]     The
Plaintiff has lost his occupation as a journeyman plumber since the accident,
and was only in his second year of employment with that credential when the
accident occurred. The Plaintiff was described by his boss and co-workers as
taking pride in his work and being a conscientious, motivated, reliable
employee, who made sure the job “got done right.” He continued to display those
attributes after the accident except that he missed days of work and ultimately
could not physically perform his duties. He has lost his physical strength and
ability to pursue a related occupation. Whether the Plaintiff will be able to
move into a golf management position upon completion of his course, either by
starting at an entry level low-paying job or low level management, is subject
to considerable doubt.

[316]     Prior to
the accident the Plaintiff enjoyed baseball, volleyball, soccer, going camping,
travelling and other social activities. His primary recreational pursuit was
playing center field for the Dukes. He excelled at the sport and the practices
and games were very important to him given that he had played baseball at a
very high level since his early teens. He has lost the ability to pursue sports
and other recreational activities since the accident. Those that remain,
activities like travelling and camping, are much less enjoyable.

[317]     In terms
of his broader social relationships, it is clear from the various witnesses who
testified, the Plaintiff’s life is much diminished since the accident. It is
also clear that the Plaintiff goes out and socializes much less frequently than
before. Loyal friends drop by but are unable to pursue the pre-accident
activities with him and he no longer has the social interaction arising from
baseball or his work.

[318]     In terms
of the future, the evidence indicates that the Plaintiff’s current life
situation is not likely to change appreciably.

[319]     Counsel
for the Plaintiff provided the following authorities:

• Tompkins v. Bruce, 2012 BCSC 266;
• Felix v. Hearne, 2011 BCSC 1236;
• Zawadzki v. Calimoso, 2011 BCSC 45;
• Schucknecht v. Singh, 2006 BCSC 1025;
• Scoates v. Dermott, 2012 BCSC 485.

[320]     The Court
finds the cases of Tompkins and Schucknecht to be of the most
assistance in terms of providing guidance as to the range of an appropriate
award.

[321]     In Tompkins
the plaintiff was 55 years old at trial. He was working as a gas fitter at
the time of his accident in 2006. As a result of the accident he suffered rib
fractures and a collapsed lung, a fractured left hip, and a fracture to his
right leg. He later underwent a hip replacement and would likely require a knee
replacement in the future. He also suffered a significant psychological mood
change caused by his injuries and disabilities resulting in irritability, anger
and depression. He was unable to return to his former employment and was
unlikely to be employed in the near future. He also could not return to his
pre-accident sports activities that included skiing, hiking and tennis. In that
case Mr. Justice Curtis considered the upper limit for non-pecuniary
damages at paras. 50-52 and awarded a sum of $200,000. In determining this
amount Curtis J. considered (at para. 53) that Mr. Tompkins had been
particularly unfortunate in having three major joints, both knees and his left
hip, damaged in the collision in ways that were permanent and likely to get
worse, along with his altered mood and other injuries.

[322]     In Schucknecht,
Madam Justice Allan awarded the plaintiff an amount of $190,000 in
non-pecuniary damages. The 35 year old plaintiff was a weld-mesh operator
before the motorcycle he was riding collided with a vehicle driven by the
defendant in an accident for which the defendant was held to be 100 percent
liable. He suffered a broken hip that required extensive surgery, a broken leg
and ankle, and knee injuries. The prognosis for recovery of function in the hip
was poor and the medical evidence indicated that the plaintiff would not be
able to work in the future and would need ongoing medical care. His injuries
had an extreme effect on his enjoyment of life. He also suffered from
depression and required psychological treatment.

[323]     Having
considered the devastating effect of the accident upon the Plaintiff in all
aspects of his life, I find that a fair and reasonable award for non-pecuniary
damages is $190,000.

Past Loss of Earning Capacity

[324]     A claim
for past wage loss is really a claim for past loss of earning capacity: M.B.
v. British Columbia, 2003 SCC 53 at para. 49; Ibbitson v. Cooper, 2012
BCCA 249 at para. 19. A claim of this type is meant to compensate for the
pecuniary loss of the value of the work that the injured plaintiff would have
performed, but could not because of the injury. Different measurements may be
used to quantify the amount in different cases. For example, in some cases it
may be measured by reference to the actual earnings the plaintiff would have
received, or by a replacement cost evaluation of tasks that the plaintiff will
now be unable to perform.

[325]     Pursuant
to s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231,
a plaintiff is entitled to recover damages for only his or her past net income
loss as a result of the accident. This means that in the ordinary course the
court must deduct the amount of income tax payable from lost gross earnings: Hudniuk
v. Warkentin, 2003 BCSC 62. The trial judge has discretion to determine
what period or periods of time are appropriate for the determination of net
income loss: Lines v. W.D. Logging Co. Ltd., 2009 BCCA 106 at paras. 181-186.
When exercising this discretion, the trial judge should keep in mind that the
plaintiff is to be put back in the position he or she would have been in had the
accident not occurred: Lines at paras. 185-186.

[326]     Actual
past events must be proven on a balance of probabilities. But an assessment of
loss of both past and future earning capacity involves consideration of
hypothetical events. The plaintiff is not required to prove these hypothetical
events on a balance of probabilities. The future or hypothetical possibility
will be taken into consideration as long as it is a real and substantial
possibility and not mere speculation: Athey at para. 27; Morlan
v. Barrett, 2012 BCCA 66 at para. 38.

[327]     In the
present case, the Plaintiff has suffered loss with respect to his earnings in
the time period from the accident to the date of the trial. The correct measure
is by reference to the earnings the Plaintiff would have received from his work
as a journey plumber based on the BC average for male plumbers. In 2009 when
the accident occurred, the Plaintiff was only in his second year as a
journeyman plumber. Mr. Benning said that one would not normally project
lifetime earnings based on a single or first year, hence his reference to the
average. Mr. Benning estimated this amount on a post-tax basis to be
$206,364 (at p. 10, and Table 3 of his report at p. 17). For the
reasons previously articulated I accept his calculations in this regard.

Loss of Future Earning Capacity

[328]     A claim
for loss of future earning capacity raises two key questions: 1) has the
plaintiff’s earning capacity been impaired by his or her injuries; and, if so
2) what compensation should be awarded for the resulting financial harm that
will accrue over time? The assessment of loss must be based on the evidence,
and not an application of a purely mathematical calculation. The appropriate
means of assessment will vary from case to case: Brown v. Golaiy (1985),
26 B.C.L.R. (3d) 353 (S.C.); Pallos v. Insurance Corp. of British Columbia (1995),
100 B.C.L.R. (2d) 260 (C.A.); Pett v. Pett,
2009 BCCA 232; Mazur v. Lucas, 2014 BCCA 19.

[329]     The
assessment of damages is a matter of judgment, not calculation: Rosvold v.
Dunlop, 2001 BCCA 1 at para. 18.

[330]     Insofar as
possible, the plaintiff should be put in the position he or she would have been
in but for the injuries caused by the defendant’s negligence: Lines at para. 185.
The essential task of the Court is to compare the likely future of the
plaintiff’s working life if the accident had not happened with the plaintiff’s
likely future working life after the accident: Gregory v. Insurance Corp. of
British Columbia, 2011 BCCA 144 at para. 32.

[331]     There are
two possible approaches to assessment of loss of future earning capacity: the
“earnings approach” from Pallos, and the “capital asset approach” in Brown.
Both approaches are correct. The “earnings approach” will generally be more
useful when the loss is easily measurable: Perren v. Lalari, 2010 BCCA
140 at para. 32. Where the loss “is not measurable in a pecuniary way”,
the “capital asset” approach is more appropriate: Perren at para. 12.

[332]     The
earnings approach involves a form of math-oriented methodology such as i)
postulating a minimum annual income loss for the plaintiff’s remaining years of
work, multiplying the annual projected loss by the number of remaining years
and calculating a present value or ii) awarding the plaintiff’s entire annual
income for a year or two: Pallos; Gilbert v. Bottle, 2011 BCSC 1389 at para. 233.

[333]     The
capital asset approach involves considering factors such as: i) whether the
plaintiff has been rendered less capable overall of earning income from all
types of employment; ii) whether the plaintiff is less marketable or attractive
as a potential employee; iii) whether the plaintiff has lost the ability to
take advantage of all job opportunities that might otherwise have been open;
and iv) whether the plaintiff is less valuable to herself as a person capable
of earning income in a competitive labour market: Brown; Gilbert at para. 233;
Morgan v. Galbraith, 2013 BCCA 305 at paras. 53, 56.

[334]     Though the
capital asset approach is not a “mathematical calculation”, the trial judge
must still explain the factual basis of the award: Morgan at para. 56.

[335]     The
principles that apply in assessing loss of future earning capacity were
summarized by Low J.A. in Reilly v. Lynn, 2003 BCCA 49 at para. 101:

The relevant principles may be
briefly summarized. The standard of proof in relation to future events is
simple probability, not the balance of probabilities, and hypothetical events
are to be given weight according to their relative likelihood: Athey v.
Leonati, [1996] 3 S.C.R. 458 at para. 27. A plaintiff is entitled to
compensation for real and substantial possibilities of loss, which are to be
quantified by estimating the chance of the loss occurring: Athey v. Leonati,
supra, at para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d)
133 at 135 (C.A.). The valuation of the loss of earning capacity may involve a
comparison of what the plaintiff would probably have earned but for the
accident with what he will probably earn in his injured condition: Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the
end of the inquiry; the overall fairness and reasonableness of the award must
be considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11; Ryder
v. Paquette, [1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task
of the Court is to assess the losses, not to calculate them mathematically: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.).
Finally, since the course of future events is unknown, allowance must be made
for the contingency that the assumptions upon which the award is based may
prove to be wrong: Milina v. Bartsch, supra, at 79.

Plaintiff’s position

[336]     The
Plaintiff submits that the Court should use the earnings approach and consider Mr. Benning’s
present value of the Plaintiff’s potential future earnings as a plumbing
contractor; a figure of $1,361,814 assuming a work life to age 65. Despite his
efforts to re-train in the field of golf management, it is submitted that while
the Plaintiff retains some residual capacity to work in sedentary or light
duties positions, given the totality of his post-accident condition he is
likely to be competitively unemployable, or limited to sporadic work at entry
level wages.

[337]     His
counsel submits, using the actuarial tables provided in Mr. Benning’s
report, that the present value of full-time employment for the Plaintiff at the
current minimum wage rate of $10.45 per hour, assuming a 50 week work year, is
$348,000. This is the best that the Plaintiff can hope for. Given his character
and work ethic the Plaintiff will seek work in the future and will seek the
most remunerative work he can find, but given his limitations his counsel
submits he will find work sporadically, work that may be seasonal given the
golf season or part-time. Based on the premise that the Plaintiff would have
continued to work as a plumbing contractor until retirement, his counsel
submits that his damages for diminished earning capacity fall within a range of
$1,000,000 to $1,300,000, and that the Court must then apply a reduction to
that amount to reflect the contingency created by his pre-existing condition.

Defendant’s position

[338]     The
Defendant’s position is premised on a “cut-off” point for damages, including
for loss of future earning capacity, of 7.5 years after the accident. That
would be January 18, 2017, and much of that period would be subsumed in past
loss of capacity to the date of trial. The Defendant’s calculations provided
for a period of approximately 22 months, resulting in a total for future income
loss of $94,500.

[339]     Counsel
for the Defendant submits that the Plaintiff is employable in the field that he
has chosen – golf management. He points out that late in the trial Plaintiff’s
counsel has changed his approach to submit that the Plaintiff is a poor
candidate for any golf management position and will be only able to obtain
sporadic part-time or minimum wage employment. He submits that the Plaintiff
having chosen to mitigate his losses has chosen the field of golf management
and is essentially bound by that choice. He also points out that in this trial
a great deal of time has been spent speculating about when the Plaintiff will
catch up to his previous income stream. Normally, when a plaintiff changes
vocation due to injury, evidence from a vocational expert is called to show
their best options and the duty to mitigate by finding suitable employment
arises. Here, the Plaintiff declined to put such evidence before the Court
although the Plaintiff has seen such an expert, and now asks the Court to
accept that he is a poor candidate for any golf management position. Counsel
for the Defendant further submits that the Plaintiff still possesses those
characteristics that made him a valuable employee and a good journeyman plumber
– motivation to work hard, determination, someone who takes “personal pride in
getting the job done right” and who was an exacting supervisor to his
apprentice. On that basis, counsel for the Defendant submits that the Plaintiff
will be successful in his chosen field.

[340]     On behalf
of the Defendant it is submitted that the calculations of Mr. Turnbull
ought to be preferred over those of Mr. Benning, and in any event, the
assumption of Mr. Turnbull that the Plaintiff is capable of finding
employment at $20/hr instead of minimum wage is no less arbitrary than relying
on the hourly minimum wage rate.

Analysis and Findings

[341]     There is
no question that the Plaintiff’s earning capacity has been significantly
impaired by his injuries caused by the accident. The earnings approach is the
correct approach in this case. The Plaintiff had been employed as a plumber
since 2002 and had worked hard to train and receive certification as a
journeyman plumber. He had no plans to change occupations.

[342]     Given that
the Plaintiff was only in his second year as a journeyman plumber, the Court
does not accept that he was likely to become a plumbing contractor with his own
plumbing business. He aspired to do so in the future but had taken no concrete
steps in that direction except talk of his aspirations to his boss’s son and a
friend. Nonetheless, it is most certainly probable that the Plaintiff would
have continued to work as a journeyman plumber to retirement.

[343]     Mr. Benning’s
figure for the present value of the Plaintiff’s potential future earnings as a
journeyman plumber to age 65 is $1,087,603.

[344]     The
Plaintiff has chosen to pursue the field of golf course management and will not
graduate from his program of study until January 2016. At the time of trial he
was not yet through his courses. His evidence, corroborated by those who know
him and see him regularly and the report of Ms. Fischer assessing his
physical capacity as of 2014, supports a finding by the Court that the
Plaintiff still suffers from considerable pain and disability in his left hip
and low back that impact his ability to secure and maintain regular employment.
He also suffers from significant mental health issues related to his injuries.
Over time he may be successful in securing a regular full-time position in golf
management, but that remains to be seen. It will take real perseverance on his
part, as well as a measure of good luck, for him to find a full-time position
he can physically manage that pays him an income significantly over minimum
wage.

[345]     Mr. Benning
provided calculations with regard to future income loss. In particular he
calculated that over his remaining working life the Plaintiff would make
$269,662 less in income in golf management with promotion after ten years than
he would have as a journeyman plumber. The present value cumulative total
future income for the Plaintiff in golf management with promotion after ten
years is $817,942.

[346]     The
executive director of the CPGA, Mr. Miyazaki’s evidence was that the
incumbents in the higher golf management positions tended to stay in those
positions and that the best way to gain access to such a position was to work
one’s way up from associate professional to head professional. Membership in
the CPGA is helpful in this regard as an additional professional credential.
The achievement of that designation involves a certain level of demonstrated
skill in playing golf that the Plaintiff may not be able to achieve. In a
recent tournament for such an accreditation, only ten of the 22 applicants had
passed and one came in under par. Based on the evidence, it seems probable if
the Plaintiff is to succeed in golf management he will spend many years working
to achieve such a position. It is for that reason that I choose to be guided by
the projected income for a position in golf management after ten years as
opposed to after seven years.

[347]     Taking all
the evidence into account and being mindful that the Court is to make an
assessment of loss of future capacity and not engage in an exercise of
mathematical calculation, I am guided by the minimum wage figure in the amount
of $348,000 as representing the probable low end of the present value of the
Plaintiff’s future earnings, and the amount of $817,942 for a position in golf
management after ten years as the probable high end.

[348]     To my
mind, the probable loss of future capacity for the Plaintiff is approximately
midway between those two points, as compared to the present value of his
potential future earnings as a journeyman plumber in the amount of $1,087,603.
I am also guided by the Plaintiff’s strong work ethic and determination on the
one hand and on the other, the limitations now placed upon him by the injuries
caused by the accident to his left hip and back and their sequelae, including
their impact on his mental health.

[349]     I find an
amount of $500,000 for loss of future capacity to be a fair and reasonable
award.

Cost of Future Care

[350]     The plaintiff
is entitled to compensation for the cost of future care based on what is
reasonably necessary to restore him to his pre-accident condition insofar as
that is possible. When full restoration cannot be achieved, the court must
strive to ensure full compensation through the provision of adequate future
care. The award is to be based on what is reasonably necessary on the medical
evidence to preserve and promote a plaintiff’s mental and physical health: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), aff’d (1987), 49 B.C.L.R.
(2d) 99 (C.A.); Spehar v. Beazley, 2002 BCSC 1104 at para. 55,
aff’d 2004 BCCA 290; Gignac v. Insurance Corporation of British Columbia,
2012 BCCA 351 at paras. 29-30.

[351]     The test
for determining the appropriate award under the heading of cost of future care
is an objective one based on medical evidence. For an award of future care: (1)
there must be a medical justification for claims for cost of future care and
(2) the claims must be reasonable: Milina at 78; Tsalamandris v.
McLeod, 2012 BCCA 239 at paras. 62-63.

[352]     The test
is clearly set out by Madam Justice Garson, writing for the Court of Appeal, in
Gregory as follows:

[39]        
I do not consider it necessary, in order for a plaintiff to successfully
advance a future cost of care claim, that a physician testify to the medical
necessity of each and every item of care that is claimed. But there must be
some evidentiary link drawn between the physician’s assessment of pain,
disability, and recommended treatment and the care recommended by a qualified
health care professional:  Aberdeen at paras. 43, 63.

[353]     Future
care costs are “justified” if they are both medically necessary and likely to
be incurred by the plaintiff. The award of damages is thus a matter of
prediction as to what will happen in future. If a plaintiff has not used a
particular item or service in the past it may be inappropriate to include its
cost in a future care award: Izony v. Weidlich, 2006 BCSC 1315 at para. 74.
However, if the evidence shows that previously rejected services will not be
(able to be) rejected in the future, the plaintiff can recover for such
services: O’Connell v. Yung, 2012 BCCA 57 at paras. 55, 60, 68-70.
Awards under this head of damage should be informed by common sense, however
much the claims may be recommended by experts in the field: Penner v.
Insurance Corporation of British Columbia, 2011 BCCA 135 at para. 13.

[354]     The
extent, if any, to which a future care costs award should be adjusted for
contingencies depends on the specific care needs of the plaintiff. In some
cases, negative contingencies are offset by positive contingencies and,
therefore, a contingency adjustment is not required. In other cases, however,
the award is reduced based on the prospect of improvement in the plaintiff’s
condition or increased based on the prospect that additional care will be
required. Each case falls to be determined on its particular facts: Gilbert at
para. 253.

[355]     An award
for future care may also be reduced based on a negative contingency arising
from a pre-existing medical condition unrelated to the incident giving rise to
the loss: Bouchard BCCA.

[356]     An
assessment of damages for cost of future care is not a precise accounting
exercise: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para. 21.

The Evidence

[357]     In
addition to her functional capacity assessment of the Plaintiff, Ms. Fischer,
the registered occupational therapist and certified life care planner, provided
a detailed report (Exhibit 11, Tab 7B) on the cost of future care that included
two sections. These sections are not alternatives; rather, Ms. Fischer has
simply separated out general costs from those associated with future surgeries.
The first addresses the Plaintiff’s current and future needs, taking into
account his plan to move into a house and start a family with many of these
needs also being required on an ongoing basis throughout his life. The second
addresses the Plaintiff’s needs leading up to and following a total left hip
replacement, which may be required within the next five years given that the
Birmingham resurfacing performed by Dr. Duncan is considered not to have
had a satisfactory result. The second section also includes items and services
that would assist the Plaintiff with aging, long term decline and ongoing
disability.

[358]     Ms. Fischer
relies upon the portions of Dr. Duncan’s February 26, 2014, and April 2,
2014, reports set out above; specifically referencing the Plaintiff’s continued
symptoms of pain and limited rotation of his left hip two years after the
Birmingham resurfacing and the fact that a total replacement of his left hip
may be necessary within the next five years.

[359]     Based on
the opinions of Dr. Duncan, the probable effect of the Birmingham
resurfacing being less than successful is that the left hip replacement that
the Plaintiff may have required 15 years from 2012 will be accelerated and he
may require the full hip replacement within the next five years. This means
that the Plaintiff would then be likely to have a further surgery after 20 to
25 years to replace components in the replaced joint, and a second similar
surgery in his old age.

[360]     Mr. Benning,
the economist called by the Plaintiff, also provided a second report, dated
September 23, 2014 (Exhibit 11, Tab 8), that addresses the present value of
future cost of care based on the items and services recommended by Ms. Fischer.
It contains a table for calculating cost of future care with a multiplier
applicable to the Plaintiff, assuming normal life expectancy and an itemized
list of the services and items recommended by Ms. Fischer that reflects
their cost, frequency, the applicable multiplier and lump sum present value.

[361]     The
estimated future care cost (present value) for the first section, the
Plaintiff’s current and future needs, based on Mr. Benning’s calculations,
is $247,030. The estimated future care cost (present value) for the second section,
the Plaintiff’s needs leading up to and following a total hip replacement as
may be required within the next five years (at year six) with a further surgery
(at year 29), is $50,276. Together both sections total $297,305 (present
value).

Plaintiff’s position

[362]     The
Plaintiff’s position is that there is medical evidence to support almost all of
the future care costs for items or services recommended by Ms. Fischer, as
costed by Mr. Benning. Counsel for the Plaintiff referred to the fact that
Ms. Fischer, as a registered occupational therapist and certified life
care planner, is able to provide evidence that certain items or services arise
from the Plaintiff’s medical needs. He submitted that the Plaintiff’s plan with
his wife to move into a house from their present condo and the increased cost
of future care for the Plaintiff due to that planned change was reasonable.

Defendant’s position

[363]     As the
Defendant’s first position was that the Plaintiff was entitled to damages for a
moderate soft tissue injury to his neck, upper back and an aggravation of a
pre-existing condition in his low back, but not for any damages related to his
left hip, there would be no award for the cost of future care. In the
Defendant’s alternative submission (where it was submitted that the Court cut
off any entitlement for damages at the 7.5 year mark from the date of the
accident), the Plaintiff would not be entitled to an award for cost of future
care because his hip problems were merely accelerated and could not be avoided.

[364]     Counsel
for the Defendant also submitted that the costs of future care as presented by Ms. Fischer
are exaggerated and unnecessary and that many of the items and expenses
included by her are not shown to be medically necessary according to the test
set out above in Gregory. While there is evidence that the Plaintiff may
require a revision of his left hip in future, there is no evidence that he will
decline to the point that he is in a wheelchair, in need of a van with a lift
or housekeeping, yard maintenance or other services based on him becoming
severely disabled in the future. He submits that the best measure of what care
will be used in the future is what has been needed in the past, and the
Plaintiff indicated to Ms. Fischer that he had reached a plateau a year
prior to meeting with her on the most recent occasion in April 2014. He was
going for walks and engaging in mild forms of exercise.

Analysis and Findings

[365]     Given the
Court’s findings as to causation and the extent of the Plaintiff’s injuries, in
particular with regard to the accident causing injury to the Plaintiff’s left
hip and the sequelae of that injury, the Plaintiff has established entitlement
to a significant award for items and services related to the cost of future
care. It is, however, necessary in making such an award to scrutinize the
nature of items and services “for some evidentiary link drawn between the
physician’s assessment of pain, disability, and recommended treatment and the
care recommended by a qualified health care professional”, as quoted above in Gregory.

[366]     While the
Court has set out the key aspects of the medical and other evidence bearing on
the Plaintiff’s physical and mental condition above, it is useful to provide a
brief recap of some of the key points that support aspects of the Plaintiff’s
claim for cost of future care:

·      
The evidence of Dr. Duncan as to the state of the Plaintiff’s
left hip and the likelihood of at least two and potentially three hip surgeries
in the future to attempt to remediate the hip supports reasonable costs for
items and services related to his left hip, in terms of treatment, care and
rehabilitation.

·      
Dr. Gilbart indicated that the Plaintiff may require some
massage therapy and intermittent physiotherapy for his pain, as his pain was
likely to continue in the right side of his low back and in his left hip.

·      
Dr. Gilbart recognized that the Plaintiff was also
experiencing pain in his right hip, which had worsened as a result of the
accident; if it continues to worsen, it too may require an arthroplasty.

·      
Dr. Bishop’s view was, given the Plaintiff’s disc pathology
in his cervical, thoracic and lumbar spine, that prolonged use of analgesic
medications and in particular narcotic analgesic medications, prolonged passive
therapies such as massage therapy or chiropractic spinal manipulation therapy
would result in poor clinical outcomes and prolonged disability. He regarded the
Plaintiff’s long term prognosis for a return to his pre-accident level to be
poor.

·      
Ms. Fisher’s physical testing of the Plaintiff revealed real
limitations in walking, standing and sitting as well as lifting, pushing and
pulling.

·      
Dr. Wiseman and Dr. Hopp recommended continuing
psychological counselling for the Plaintiff.

·      
Dr. Wiseman changed the Plaintiff’s medications by placing
him on Cymbalta, which is an anti-depressant with some pain-modulating
properties, as it could arguably “serve to reduce the Plaintiff’s risk of
further psychiatric deterioration.” He further recommended a change in the
Plaintiff’s pain medication from Tridural to Nucynta Extended Release. Dr. Wiseman
also stated, “Anything more that can be done for this man with respect to
vocational rehabilitation and support, orthopedic treatment, pain management,
and financial security will clearly benefit him from a psychiatric point of
view.”

·      
Dr. Hopp recommended that the Plaintiff have 12 sessions per
year of psychological counselling over the next five years and then access to
six sessions per year for the remainder of his life to help him cope with the
increased anxiety and depression he experiences with chronic pain. Her rate is
currently $175 per session.

·      
Dr. Fyfe testified regarding the cost of the Plaintiff’s
medications – Nucynta is $8 per day and Cymbalta is $3 to $5 per day.

[367]     Turning to
the first scenario of future costs, the Plaintiff’s current and future needs
(p. 35 of Ms. Fischer’s April 29, 2014 report, as costed by Mr. Benning
at Table 2, pp. 7-8 of his September 23, 2014 report), overall I find them
to be reasonable and medically necessary, after accounting for the changes
submitted by counsel for the Plaintiff and several other reductions.

[368]     First, the
medications of naproxen and cyclobenzaprine are no longer prescribed for the
Plaintiff and the cost of them is deducted. Instead, he is taking Cymbalta ($8
per day) as prescribed, which results in a yearly expense of $2,920 and a
present value cost (using the applicable multiplier of 28,082) of $81,999; and
Nucynta ($4 per day) as prescribed, which results in a yearly expense of $1,460
and a present value cost (using the same multiplier) of $41,000. These significant
amounts are to be added and account for much of the increase in the final
amount despite a number of items and services being eliminated. The only
evidence with regard to Cymbalta and Nucynta is that the Plaintiff will require
these medications on an ongoing basis for years to come to address his pain and
depression. The Plaintiff is also taking rabeprazole. The present value cost of
$4,381for rabeprazole has been included. This medication is necessary to
counteract the side effect of acid reflux that results from the Plaintiff’s use
of the other medications.

[369]     With
regard to the amount for yard maintenance, I agree with the Plaintiff’s counsel
that it is too high and should be reduced from the equivalent of 30 lawn mows
per year to 15 per year, which after the calculations are done results in a
deduction of $15,161 (present value) from the prior total.

[370]     It is
clear that while the Plaintiff is still mobile and can do various things around
the home or other tasks related to daily living, he moves slowly and is in
pain. It is, in my view, entirely reasonable and supported by the medical
evidence with regard to his left hip and cervical and lumbar spine in
particular, that the Plaintiff has services available to assist with yard
maintenance, home maintenance and cleaning. These are tasks that he is no
longer able to perform, that he undoubtedly would have done if he were not
involved in the accident. In the event he is able to find suitable low impact
full-time employment, I accept the evidence of Ms. Fischer that it will
significantly tax his physical resources such that he will not be able to do
his share of housework or other household chores. His plan to move into a house
is a reasonable one. I accept that, in the absence of the accident, the
Plaintiff would have moved into a house and that he is likely to do so in his
present condition as well: see Milina at 87. Ms. Fischer’s report
provides amounts for these services until the Plaintiff turns 80 years of age,
at which point in time they terminate. But it is unlikely that the Plaintiff
would be performing activities like yard maintenance into his 70’s: Penner at
para. 15. Although the report does recommend reductions in funding for
these activities in the Plaintiff’s later years, I find that the age of 68 is
an appropriate cut off, that being the age when the Plaintiff would have been
unlikely to perform these services regardless of the accident, and would
accordingly reduce the total by $13,331.

[371]     I find
that psychological counselling is to be added to the cost of future care as
calculated by Mr. Benning, as that information was not available to him
when he prepared his report. Based on the evidence of Dr. Wiseman and the
recommendations of Dr. Hopp and her current rate of $175 per session, 12
sessions per year ($2,100 per year) results in a present value for
psychological counselling for the first five years of $9,960, which is added to
the cost of future care.

[372]     In the
present circumstance, the Court is of the view that psychological counselling
for the remainder of the Plaintiff’s life with the frequency of six visits per
year based on the current BC Psychological Association tariff of $200 per visit
(annual cost of $1,200) is a reasonable and medically necessary expense. The
psychological counselling sessions are necessary to allow the Plaintiff to deal
with the depression and anxiety that has resulted from the changes in his level
of functioning since the accident, and the corresponding problems that have
arisen in his marriage and his other relationships. The higher amount, compared
to Dr. Hopp’s fee, is justified based on the fact that the Plaintiff will
almost certainly have to change psychologists during his lifetime given the
length of time that he will need counselling. The present value for that
service is $28,000, which is to be added to the cost of future care derived by Mr. Benning.

[373]     In
reviewing the other health care services items, I find both the sessions with a
kinesiologist and the fitness pass to be reasonable and medically necessary.
The Plaintiff has taken advantage of exercise options that he has been provided
since the accident, including the use of a pool, and Ms. Fischer has noted
that she believes that this is one of the best exercise options for him. One
must remember that because of the accident he has lost the ability to play
baseball, which was an important source of exercise for him. However, he is
concerned that using the gym facilities will aggravate his symptoms, so he
requires the assistance of a kinesiologist to show him the proper exercises.
The present value of the fitness pass is $8,388 up to the age of 60, which will
be added. After that period, I would disallow the further cost of the fitness
pass of $4,223, given that it is highly unlikely that the Plaintiff would have
been able to continue playing baseball or otherwise exercising considerably at
that age, regardless of the accident. In terms of the sessions with a
kinesiologist, I find that the initial cost of $2,375 is justified for the
reasons set out above, but the long term cost of $21,674 to allow for “updating
his exercise plan, monitoring of his functional status, and [encouraging] him
to remain active” as noted on p. 36 of Ms. Fischer’s report, while
perhaps beneficial, cannot be said to be medically necessary for the Plaintiff.

[374]     Further,
the additional costs for occupational therapy and further sessions for
vocational counselling and vocational assessment are not made out on the
evidence. The Plaintiff has already had the benefit of occupational therapy,
and the report does not provide a basis for determining the medical necessity
of additional sessions or explain what those sessions would provide over and
above the ones the Plaintiff has already received. The vocational assessment
and counselling are recommended if the Plaintiff has difficulty finding
suitable employment at a golf course after graduation; a possibility which the
Court is not able to assess at this time. While this Court heard evidence that
those positions are difficult to obtain, that is not sufficient to justify
these additional costs. Accordingly, $3,388 must be deducted from the total
specified in the report.

[375]     With
respect to the category of equipment, which includes cushions for chairs in the
Plaintiff’s home, an ergonomic chair for his future place of work, a footrest
to support his left leg while sitting, a pillow top for his mattress, and
dressing and bathing aids, I am satisfied that these are reasonable and
medically necessary, with the exception of the annual cost of the cushions and
some of the aids. The cushions are said to improve the Plaintiff’s comfort and
sitting tolerance, and are used on minimally cushioned chairs within the
Plaintiff’s home, at a cost of $3,114 over the Plaintiff’s lifetime. It cannot
be said that it is medically necessary for the Defendant to provide for this
expense, which seems to be more a matter of preference. The aforementioned cost
will be deducted from the total. The ergonomic chair, footrest and pillow top
mattress, however, are important to allow the Plaintiff to maintain comfort
while sleeping and working in the future, and their cost will be allowed. But I
would reduce the cost for the pillow top mattress by half, requiring a
reduction of $758.50, as bi-annual replacement seems more appropriate. The last
item in this category, dressing and bathing aids, includes items like a bath
mat and a long handed sponge, which are likely to be present in most homes in
any event: Penner at para. 14. I also disagree that the other items
that the Plaintiff may require because of his decreased mobility, like a long
handed shoe horn and long handed reacher, would need to be replaced on an
annual basis, as the report suggests. Therefore, from the suggested amount of
$2,808, I would allow the lesser amount of $800, meaning that $2,008 must be
deducted from the total.

[376]     The Court
has before it conflicting evidence as to the efficacy of massage, chiropractic
services and physiotherapy. Dr. Bishop does not recommend it for the
Plaintiff’s spine, whereas Dr. Gilbart is of the view it may assist the
Plaintiff with managing the pain in his left hip and low back. Since the evidence
establishes that the Plaintiff’s left hip is his most pressing concern, the
relatively modest annual amount of $720 for physiotherapy is to remain as it
may assist the Plaintiff with pain management.

[377]     The second
section canvased by Ms. Fischer addresses the Plaintiff’s future needs
with a decline in function and following the next two surgeries he is likely to
have on his left hip. The first likely being a full hip replacement according
to Dr. Duncan, the need for which has been caused by the accident and the
less than satisfactory outcome of the Birmingham resurfacing, and the second
being the replacement of parts in the replaced hip some 25 years later. The
present value of these items and services is an additional $50,276.

[378]     The first
category of items contains adaptive aids, including a cane, a bath seat, a
raised toilet seat, grab bars, and a bed assist rail, which add up to a total
cost of $2,579. These items will become necessary when the Plaintiff’s
mobility, balance and lower extremity strength declines as a result of further
surgery. Therefore, I would allow these costs.

[379]     She also
recommends a number of items and services that specifically relate to both
these future surgeries, which are expensive, including a scooter, both an
indoor and an outdoor walker, a vehicle lift, the reinstallation of a vehicle
lift every five years into a new vehicle, and a stair lift. The Court finds
that there is no medical evidence to support the notion that the Plaintiff will
be debilitated to the extent that he would need the mobility items, either at
year six or year 29. The Court disallows any claim for those amounts, meaning
that the amount of $27,803 must be deducted from the total expressed in Mr. Benning’s
report. I would also disallow the $3,320 cost of long term occupational therapy
throughout his lifetime, said to be beneficial for addressing the Plaintiff’s
changing equipment needs, home modifications, pain management methods, and
exercise/activity routines. I find those requirements too speculative to
capture with the present award.

[380]     However,
the Court does accept that in his lifetime the Plaintiff will likely have these
surgeries in relation to his left hip, in part caused by the injuries he
sustained in the accident. The report lists the timing of those surgeries as
year 6 and year 29, when the Plaintiff would be age 44 and age 67. There will
be some additional costs to him arising from that surgery: a hospital bed
rental, crutches, a wheelchair and associated cushion, and an indoor walker. I
find that the necessity of the hospital bed rental has not been made out, given
that the report at p. 41 merely indicates that the Plaintiff “may require
a rental hospital bed, particularly if a bed has to be set up on the main floor
of his house”. There is no description of the medical justification for having
this bed in the home, and the Plaintiff may, in fact, move into a home where
his bedroom is already located on the main floor. Thus, that amount of $958 must
be deducted. The physiotherapy amount of $3,650 should also be deducted, given
that the first section already includes the cost of physiotherapy, albeit at a
less frequent rate. The medical justification for the more frequent sessions
has not been established. The other costs I would allow to assist with the
Plaintiff’s mobility following surgery.

[381]     In terms
of the home support and household services costs, which includes home care and
a taxi fund, I would allow them with respect to year six, the first surgery,
but not with respect to the second surgery at year 29. He will need care during
the three months he is recovering from the surgery, when his level of function
will be severely restricted. He will also be unable to drive and his wife will
be at work, so the taxi fund will allow him to travel to his necessary
appointments. But by the anticipated time of the second surgery, the family may
be in entirely different circumstances. He and his wife will have reached
retirement age, and their child will be an adult. It is thus too speculative to
say, at this point in time, that the home care and taxi fund will be necessary
after the second surgery. The costs of these two items will be divided in half,
reducing the total amount by $5,622.50.

[382]     Recalculating
the total present value of the cost of future care and making the changes set
out above, I award the amount of $350,461 which is subject to the previously
stated reduction of 20 percent.

Special Damages

[383]     It is well-established
that an injured person is entitled to recover the reasonable out-of-pocket
expenses he or she incurred as a result of an
accident. This is grounded in the fundamental governing principle that an
injured person is to be restored to the position he or she would have been in
had the accident not occurred: X. v. Y., 2011 BCSC 944 at para. 281.

[384]     In this
case the Plaintiff claims $26,370.88 in special damages as accounted for and
listed in Exhibit 3.

[385]     Counsel
for the Defendant argues that some of the items claimed are not properly
special expenses. In particular, the Defendant submits that the Plaintiff would
always have needed an arthroscopy followed by hip surgery and therefore he
would have incurred the expenses of $9,370 and $4,168 in any event, and
therefore these expenses are not properly special expenses.

[386]     The
Plaintiff’s response is that there is no evidence that the Plaintiff would have
required this treatment or surgery absent the accident and certainly no
evidence of exactly what treatment would have been required. Alternatively, the
Plaintiff submits that given the lengthy wait lists for diagnostic and
treatment procedures, the Court may consider it appropriate to award these
amounts.

[387]     I accept
the submissions of the Plaintiff on this point. Given that the Plaintiff has
adduced evidence that his need for these medical interventions arose from the
accident, the onus shifts to the Defendant to show that the same disability
requiring the same treatment would have occurred in the absence of the
accident, which he has not done. Given the level of pain that the Plaintiff was
in at the time and the fact that a significant cause of his pain was related to
his left hip, which was in need of surgery, he was not required to wait up to
several years to obtain services through the public health care system. The
Plaintiff is entitled to have these expenses included as special damages.

[388]     The
Defendant also takes issue with the amount pertaining to BCIT tuition, books
and school supplies, which I calculate based on Exhibit 3 to be $2,706.35.
While I do not accept the Defendant’s submission that in any event of the
accident the Plaintiff would have needed retraining, these education costs do
not appear to be proper special expenses and I have not been provided with any
authority to the contrary. I disallow them.

[389]     In
addition, the Defendant disputes the cost of a whole spine MRI ordered by Dr. Bishop
in the amount of $3,107.70 being included as a special expense, submitting that
it is more appropriately a disbursement. I agree and it is not to be included.

[390]     Therefore,
I award the Plaintiff $20,556.83 in special damages.

Conclusion

[391]     In
summary, damages are awarded to the Plaintiff payable by the Defendant as
follows:

a)    Non-pecuniary
damages in the amount of $190,000;

b)    Past loss of
earning capacity in the amount of $206,364;

c)     Loss of
future earning capacity in the amount of $500,000;

d)    Cost of future
care in the amount of$350,461; and

e)    Special damages
in the amount of $20,556.83;

for a total award of $1,267,381.83, before reduction on
account of the contingency for the Plaintiff’s pre-existing medical condition.

[392]     The damage
awards for non-pecuniary damages, loss of future capacity and cost of future
care are subject to a reduction of 20 percent. After these reductions, the
total remaining award is $1,059,289.63.

Costs

[393]     The Court
will receive submissions as to costs unless the parties are able to agree on
costs. They may set the matter of costs for hearing or provide written
submissions as they agree. A hearing must be scheduled, although not
necessarily heard, within 90 days of the filing of these reasons. Similarly, if
the parties make written submissions the same must be received within 90 days
of the filing of these reasons.

“The
Honourable Madam Justice E.A. Arnold-Bailey”