IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100120

Docket:
16787

Registry: Prince George

Between:

Gerald Wade Smaill

Plaintiff

And

John Williams and Sherry Williams

Defendants

Docket:
No. 17225

Registry:
Prince George

Between:

Gerald
Wade Smaill

Plaintiff

And

Marie Daulby and Insurance Corporation of British Columbia

Defendants

Before: The Honourable Madam Justice Russell

Reasons for Judgment

Introduction

[1]            
The present action arises out of two motor
vehicle accidents.  The first accident occurred July 25, 2000, when the
plaintiff was struck from behind as a pedestrian, while walking down the street
near his home and the second accident occurred September 18, 2000, when the plaintiff
was rear ended.

[2]            
The plaintiff’s position is that the first
accident was caused solely by the negligence of the defendants John and Sherry
Williams and the second accident was caused by the negligence of an unknown
driver, driving a stolen vehicle owned by the defendant Mary Daulby.  The plaintiff
further submits that he took all reasonable steps in the circumstances to
ascertain the identity of said unknown driver.  As a result of the accidents,
the plaintiff claims that he sustained injuries caused by the defendants’
negligence and is claiming both pecuniary and non-pecuniary damages.  The
plaintiff asserts that it is the first accident that was the major cause of his
injuries but that they were aggravated by the second accident.

[3]            
The defendants deny liability.  In the
alternative, while the defendants agree that the first accident was more
serious and caused the majority of the injuries sustained by the plaintiff, the
defendants are of the view that the plaintiff was contributorily negligent to
the extent of 50% for the injuries that he sustained in that accident.  While
the defendants accept that the plaintiff did exhibit objective injuries
following the accident, they assert that the current complaints of the
plaintiff are subjective and exaggerated and intervening events should reduce
the amount of damages claimed.  The defendants also raise concerns regarding
the  credibility of the plaintiff and the impact of the accident and suggest that
the plaintiff’s failure to cease taking non-prescription medication was the
cause of his wage loss and thus his failure to mitigate should go to reducing
any damages.

Background

[4]            
The plaintiff was born in 1967.  He grew up in
the Lower Mainland until he moved with his family to Alberta in his late teens. 
His home life was rocky and his parents did not have a good relationship.  The
plaintiff had difficulty in school and eventually left school in grade ten and began
a career in roofing with his father and uncle.  Unfortunately, due to his
father’s and uncle’s alcoholism, this was not a good experience for him.  When
he was 18 years old, the plaintiff was incarcerated for the first time.  In
1987, the plaintiff returned to roofing.  In 1991 he began his apprenticeship
in roofing, which took four years, and in 1995 he became a ticketed journeyman
as a certified roofer.  The plaintiff completed his General Education Development
(“GED”) Certificate when he was 19.

[5]            
In 1989, he met his spouse, who later became his
common law wife.  The couple moved to Prince George.  In January 1995, they had
a son.  After the birth of their son, the plaintiff left work to take care of
him, while his wife upgraded her education to work towards a career. 
Unfortunately, the couple separated in 1996.  The plaintiff remained the sole
caregiver for the couple’s son until 1998 and as a result did not return to
roofing and only took the odd small job when he could find appropriate day care
assistance.  In 1999, his ex-common law wife gained primary custody of their
child and both parties moved to Vancouver.  The plaintiff got a house on
Semiahmoo Reserve and had custody of his son every weekend.

[6]            
Near the end of 1999, the plaintiff found a job
with Coast Hudson Ltd. where he had good prospects for a future with the
company.  In 2000, he obtained work as a welder in the roofing off-season with
Steelbase Industries in Port Coquitlam as well as work as a roofer with Langley
Roofing shortly before the motor vehicle accidents.  However, because his
ex-spouse was often late in picking up their son, the plaintiff was required to
miss work on a few occasions to watch his son and as a result was dismissed
from his employment.  Therefore, at the time of the first accident, the
plaintiff was unemployed.

[7]            
With respect to his employment after the
accidents, the plaintiff was on medical employment income for 15 weeks.  After
the expiration of the employment income at the end of 2000, the plaintiff had
no further income and was denied social assistance.  Roofing involves a lot of
lifting, crouching and bending, all of which is physically demanding.  As a
result of the injuries from the accident, the plaintiff was disabled from the
labour workforce.  Due to his lack of education and training in non-labour
skills and absent the psychological and vocational support he requires, he has largely
remained unemployed, aside from a few odd jobs.  As a result, he has been
unable to support his son.  In April 2005m the plaintiff got a job with Pure
Energy Services doing production testing and was making more income than he had
in the past.  He worked for approximately four months doing a heavier version
of the job involving rigging and then switched to the night position which
involved mostly monitoring.  He was forced to take some time off when he fell
into a washout which seemed to aggravate his injuries, however he remained employed
there until December 2006.

[8]            
Following the accidents, the plaintiff began to
experience great difficulties in his life.  He was unemployed, forced to move
and sell off his possessions, and he lost contact with his son.  Most significantly,
as a result of his pain, he began to self-medicate with methamphetamine.  As a
result of his involvement in the drug subculture, he was incarcerated in 2003. 
Fortunately, the time spent in jail allowed the plaintiff to begin recovery
from his drug dependence and after being released, the plaintiff has worked
towards, and continues to work towards, further change and a renewal of his
relationship with his son.  Despite some minor relapses, the plaintiff asserts
that he has managed to stay off drugs since 2002.  However, this is disputed by
the defendants.

The First Accident, July 25, 2000

[9]            
On the night of the first accident, the
plaintiff was at a friend’s house on the Semiahmoo Reserve near White Rock. 
Around nine o’clock in the evening he started to walk down the single lane dirt
road on the Reserve.  He heard a vehicle approaching quickly and took a few
quick steps to the side out of the travelled path of the road (the lane is
about a vehicle and a half wide).  The plaintiff testified that he heard the
gravel shift and turned around to see where the vehicle was, when he was struck
on the left side by a minivan.  He was thrown up onto the hood, striking his
back and shoulders, and then was thrown to the ground on his hands and knees
when the defendant applied the brakes.

[10]        
The plaintiff asserts that his evidence ought to
be accepted in its entirety as the defendant has not led any evidence to
contradict this version of events.  The plaintiff’s evidence was that it was
not dark outside; it was dusk.  While the plaintiff admits there were some
shadows and no street lights, he asserts that it was not dark enough to require
lighting and there was light coming from the houses along the road.

[11]        
The defendants point to the plaintiff’s
statement to ICBC on August 9, 2000 that the accident happened at 10 pm and
that it was dark and it was only at trial that the plaintiff attempted to
qualify this statement by saying it was not dark.  The defendants assert that
his earlier statements should be preferred and that his statements at trial
lacked credibility.

The Second Accident

[12]        
On September 18, 2000, the plaintiff was driving
two friends home when he was rear ended by a fast moving car.  Upon impact, the
other car slid underneath the rear end of the plaintiff’s vehicle up to the
axle.  The vehicles caught fire.  The driver and the passenger of the other
vehicle left the scene of the accident on foot.  Because of his concern for his
passengers, the plaintiff did not pursue the driver, but remained at the scene
to wait for the police.  The plaintiff provided the police with a description
of the other driver.

[13]        
Because the plaintiff’s car was old, there was
no shoulder strap so the plaintiff was only wearing a lap seat belt.  Upon
impact, the plaintiff’s body was jolted, his face hit the steering wheel and
his leg swelled.  His pre-existing injuries were aggravated.

The Medical Evidence

[14]        
Prior to the first accident the plaintiff was in
good health.  Specifically, the plaintiff did not have any ongoing back
problems in the past and was able to perform the physically demanding tasks
that are involved in his trade, up until the time of the first accident.  He
had no workers’ compensation claims prior to the accident.  He had been
involved in one prior motor vehicle accident in 1988 or 1989, in which he
suffered a laceration to his throat as well as a collapsed lung.  He recovered from
these injuries with no ongoing problems.  He had also attended a chiropractor
in high school due to back problems arising from track and field, but these
problems had long since resolved.  Other than these two incidents, the
plaintiff was healthy and active.

[15]        
Immediately following the first accident, the
plaintiff said he briefly blacked out, but was able to stand on his own without
assistance and walk a short distance. The plaintiff testified that he felt a
sharp pain through his side and into his left hip and had a sore back.  Shortly
thereafter, he noticed that his left side was swollen.

[16]        
The next morning the plaintiff awoke with a
headache and back pain.  He had difficulty rising out of bed and he blacked out
in the shower.  The plaintiff attended the hospital that morning and two more
times over that week due to pain in his hip, back and groin and because he was
having difficulty urinating.  He also attended walk-in clinics on several
occasions in the following weeks.

[17]        
The plaintiff was prescribed Diazepam, Tylenol
and Percocet following the accident.  He later started taking “cross-tabs”
(amphetamine) without a prescription and eventually methamphetamine to
self-medicate his pain.

[18]        
The plaintiff underwent x-rays on August 1, 2000
of the lumbar spine, July 25, 2002 of both hips and the lumbar spine and on
April 2, 2003 of the left hip, lumbar spine and right shoulder.  All the x-rays
were reported as normal.

[19]        
On October 16, 2000, he underwent a bone scan
which reported left L3-4 transverse process fractures, right SI arthropathy,
but no evidence of a sacral fracture.

[20]        
On August 3, 2003, the plaintiff underwent a CT
scan, which suggested a small disc protrusion and some degenerative facet joint
disease resulting in perhaps some right L5 nerve root compression and a central
canal stenosis.

[21]        
On March 5, 2008, the plaintiff underwent an MRI
which noted a marked loss of disc height with moderate diffuse disc bulge at
L4-5, an associated midline annular tear and moderate flattening of the
anterior thecal sac.

[22]        
Prior to the accident, the plaintiff had no
problems with his heart.  However, since the accident he has developed a
cardiac arrhythmia and has had episodes of atrial fibrillation.  He has also
experienced an irritable prostate since the accident and has had alteration in
bowel function.  The medical evidence suggests this is likely caused by
haemorrhoids, not the accident.  The plaintiff was referred to Dr. Gentis
who treated the plaintiff’s swollen groin.  Despite his difficulties with
urinating, the plaintiff did not suffer any damage to his kidneys in the
accident.

[23]        
At present, the plaintiff complains that his
back pain is worse, he no longer recovers from it and it is constant.  He also testified
to having difficulty sleeping so he has to take sleeping pills.

Dr.
Dercksen

[24]        
Dr. Dercksen, a family physician, prepared two
reports, dated December 19, 2003 and February 22, 2009.

[25]        
At the time of the December 19, 2003 report, the
plaintiff was complaining of multiple aches and pains with back pain
predominantly on the left side radiating to the left buttock, down the left
thigh posterior to the knee and calf.  He also complained of right shoulder
pain, elbow pain, upper thoracic back pain and tension headaches.  The
plaintiff was finding it difficult to stand from a seated position and
experienced pain when standing for longer periods of time.  He also experienced
pain when lifting heavy objects.

[26]        
Upon examination, Dr. Dercksen noted that his
lateral flexion was less on the right compared to the left; he had generalized
tenderness paravertebrally in the thoracic areas and lumbar spine; point
tenderness over the left buttock and SI region; and tenderness over the spine
from T10 down to the sacrum.  Dr. Dercksen also noted that he had a Beck’s
score of 28 which indicates severe depression. Based on the results of the bone
scan and CT scan, Dr. Dercksen noted that the plaintiff had fractures of the
transverse process of L3 and L4, which in her opinion were a result of the first
accident.  She also noted disc disease with protrusion of the L4-5 disc
centrally and peripherally with mild to moderate central canal stenosis and
suggestion of L5 nerve root involvement and mild degenerative facet disease. 
However, despite the suggestion of L5 nerve root involvement based on the
CT scan, Dr. Dercksen noted that the plaintiff had no changes in sensation
or motor strength on the right, but did experience pain radiating down the left
leg which could be explained by nerve root involvement.  Finally, Dr. Dercsken
diagnosed chronic pain syndrome with possible underlying depression.

[27]        
Dr. Dercksen noted that up to the date of the
report, treatment recommendations had involved an exercise program and the use
of analgesics and anti-inflammatories for the pain.  Dr. Dercksen recommended
the plaintiff undergo further assessment by a neurosurgeon.

[28]        
Based on the fact that more than three years had
passed since the accident and the plaintiff had made little progress, Dr.
Dercksen concluded that his prognosis for recovering enough to work in moderate
to heavy labour was bleak.  She also noted that he had other factors which were
interfering with his recovery, namely depressive and chronic pain syndrome
features and she suggested that if these issues could be addressed, the
plaintiff’s pain control could improve.

[29]        
Following the initial report of December 2003,
the plaintiff attended at Dr. Dercksen’s practice 25 times, including four
attendances at organized pain management meetings.  She noted in her updated
report, dated February 22, 2009, that all of his consultations included ongoing
complaints of back pain, which were worse after working and the pain had on
occasion interfered with his sleep.  He also complained of left side abdominal,
intrascapular and chronic left inguinal pain radiating to his scrotum and left
sacroiliac region, which increased with walking, swimming or bike riding and he
experienced symptoms of urinary frequency.   Again, she noted that he had
presented in ways suggestive of depression and generalized anxiety.  The
plaintiff reported that he was prone to poor sleep and that he had a lot of
stress related to his inability to work and earn money so that he could see his
son.

[30]        
Since the first report, MRI tests were conducted
which showed normal degenerative type changes associated with aging.  The
plaintiff also had some disc bulge and annular tear, which she testified is
more damage than is seen with normal degenerative changes at the plaintiff’s
age.  However, Dr. Dercksen could not attribute causation to the accidents. 
She also noted that he had a small hernia diagnosed on the left side.

[31]        
Based on his medical history, Dr. Dercksen
stated that there was no indication that the plaintiff had pain problems prior
to the accidents, but he developed significant pain post-accident which caused
him emotional, physical and financial distress.  In her opinion, the plaintiff
made valiant attempts to recover by attending physiotherapy, chiropractors,
pain meetings and trying different pain medications. 

[32]        
Dr. Dercksen concluded that the plaintiff would
probably not be able to return to any form of moderate to heavy labour.  She
also noted that he has some limitations with regard to training potential for
certain office work, but that she was hopeful he could be trained for a job
that would not involve sitting or standing for long periods of time.   She
suggested that he may benefit from time spent in a pain rehabilitation clinic
and she encouraged him to continue to seek counselling for management of his
anxiety and depression, which she noted appeared to be present prior to the
accidents, but which were aggravated by the accident and the resulting pain.

[33]        
Dr. Dercksen concluded that, in her opinion, the
plaintiff’s chronic pain symptoms and inability to return to his previous work
are a result of myofascial pain syndrome caused by the plaintiff’s motor
vehicle accidents and complicated by underlying anxiety and depression.

[34]        
Dr. Dercksen testified at trial that she
believed the accident caused the plaintiff’s pain and the pain was aggravated
by a possible underlying depression anxiety problem and the pain in turn
aggravated the underlying depression.  She concluded that this was brought
about by the accident and led to the plaintiff not being able to work.  While
she acknowledged that there was a history of the patient having some mental
health concerns prior to the accident, she discounted the possibility of
schizophrenia based on her knowledge of the plaintiff over the last six years.

Dr. Van Rijn

[35]        
Dr. Van Rijn is an expert in physical medicine
and rehabilitation, clinical impairment and disability. 

[36]        
In his medical-legal report dated April 1, 2004,
he noted the ongoing complaints of the plaintiff including:  problems with his
lower back, which swells up when it is more severe; difficulty going from a
sitting to a standing position; pressure in the back and at times a “popping”
sound in his lower back accompanied by pain; stiffness in the lower back
resulting in decreased mobility; pain in his “hip” which, based on the area
indicated, is his lower back and sacroiliac region with pain radiating into the
groin; pain in the left knee and the outer aspect of his left shin which are
present when he walks any distance; pain between the shoulder blades mostly
around the right shoulder girdle, which radiates around the back of his neck
into his head and across his shoulder area which causes a burning sensation
with arm movement; pain behind his kneecap particularly when kneeling or
squatting; and psychological distress including deceased motivation, a sense of
vacantness and problems with recall and memory.  The plaintiff admitted to an
underlying low grade mood dysfunction associated with these symptoms.

[37]        
Upon examination, Dr. Van Rijn noted slightly
restricted range of motion in the neck with some accompanying neck pain on the
plaintiff turning his head to the right; radiating symptoms of tightness in the
upper and middle right trapezius with side flexion to the left and some pain in
the base of his neck with head extension; some pain in his mid and lower right
trapezius and right rhomboid with shoulder motion; a slight spinal curve while
standing; central to left lower back pain with extension; increased pain with
bilateral active straight leg raising; regional tenderness present in the left
lower back area, predominantly on the right, and in the left rear aspect of the
spine; some soft tissue tenderness in the buttocks, but more on the left; and
tenderness over the outer aspect of his left shin or over the inner aspect of
his left knee.

[38]        
Dr. Van Rijn noted that the plaintiff suffered
fractures of the transverse processes of his back.  Because these did not show
up on the x-ray, he suggested that the fractures are probably small. However,
he stated that these fractures can result in pain within the back and with back
movement and can also result in associated changes in the discs and supporting
joints producing mechanical pain.  Dr. Van Rijn suggested that the plaintiff’s
back stiffness may be related to this condition, but he also suggested it is
possible that the plaintiff may have an underlying (low grade) inflammatory
condition that might be contributing to his situation.  The bone scan, which
showed increased uptake in the sacroiliac joint, suggests something is wrong
with the joints, but Dr. Van Rijn was unable to say that it was related to the
accident.  In Dr. Van Rijn’s opinion, there was no evidence of a hip fracture
resulting from the accident, especially since the plaintiff got up and walked
immediately after the accident, and the bone scan did not show evidence of a
fracture or a healing fracture at the time that it was done.  He also stated
that he was unable, with certainty, to attribute to the accident the disc
disease at L4-5 with narrowing of the canal. 

[39]        
Based on the plaintiff’s history, examination
and Dr. Van Rijn’s observations, he formed the opinion that of the two
accidents it is more likely that the first accident caused the current symptoms
in his left shoulder, lower back and left leg and that the second accident
caused further soft tissue strains and stresses to those same affected areas,
but no new injuries; and his alteration in mood was likely caused by the accident,
chronic pain and altered function. 

[40]        
With respect to treatment, Dr. Van Rijn noted
that the plaintiff had attempted to do some weight lifting since the accident
but was unable to because of increasing pain.  He had not had any direct
supervision nor had he been provided with any active lower back programs and
therefore, he suggested that deconditioning may be playing a role in the
plaintiff’s inability to tolerate his symptoms.

[41]        
With respect to functional limitations, Dr. Van
Rijn stated that the plaintiff’s major restrictions related to his lower back
and right shoulder with pain which becomes worse with increased activity.  When
sitting for long periods he has stiffness and aching in his lower back.  Because
his problems had persisted for four years without improvement, Dr. Rijn’s
prognosis was that it was more likely than not that his condition was permanent
and will result in residual partial activity related restrictions, in other
words a disability, which will have implications for managing more physically
demanding home activities and vocational options.  In Dr. Van Rijn’s opinion,
the plaintiff’s complaints will likely restrict him in jobs requiring increased
physical demands and he would be better suited to less physically demanding
jobs where he could move about more easily and change positions as necessary.

[42]        
It was Dr. Van Rijn’s opinion that the plaintiff
would benefit from a work reconditioning program, that over-the-counter pain
killers would suffice for his aches and pains during the day and that he should
get some help in assisting him with some of his home maintenance and chores.

Dr. McKenzie

[43]        
Dr. McKenzie is an orthopaedic surgeon.  The
plaintiff saw him on April 2, 2004.  His most significant complaint was of low
back pain from the thoracolumbar junction down to the left flank and into the
left sacroiliac area and lower lumbar areas, radiating down the left leg into
the left calf laterally and into the anterior aspect of the left groin.  While
he reported his back pain was constant, he said it varied depending on his
activity and his leg pain was only intermittent and less than the back pain. 
The pain was aggravated by squatting, standing, lifting, carrying, twisting and
leaning back and improved with stretching, pain killers and liniment.  The most
severe pain resulted after three to four hours of work and could last up to a
few days.  He also reported intermittent pain in the right trapezius as well as
his scapular area and right side of the neck and some numbing in the right hand
and fingers.

[44]        
Despite the fact that the plaintiff had
originally complained of hip and not back pain, Dr. McKenzie explained at trial
that people often incorrectly refer to their lower back as their hip, and based
on the way the plaintiff pointed, he was indicating pain in the left lower back
and not the hip area.

[45]        
With respect to the bone scan, Dr. McKenzie
explained that when a bone fractures it will, during the healing process, have
characteristics that the bone scan will sense.  Dr. McKenzie stated that the
bone scan showed significant increased uptake, indicative of healing, at the
transverse processes of L3 and L4 vertebrae, which is common in people who have
suffered a blunt injury.  The transverse processes serve as an anchor for the
muscles and the particular muscle attaching to the transverse processes of L3
and L4 vertebrae is the iliosolis muscle, which goes across the groin and is
one of the hip flexors and hip rotators.  Damage to this area causes back or
flank pain, which the plaintiff felt following the accident.

[46]        
Dr. McKenzie also notes that Dr. Gentis, a
general surgeon, who saw the plaintiff, but did not testify at trial, felt that
there may have been a hematoma in the area of the injury, which is also
consistent with, as it could be caused by, a transverse process fracture and
that when Dr. Bishop, who also did not testify, examined the plaintiff on
August 15, 2000, he showed flattened lordosis (loss of curvature) in his lower
back.  Dr. McKenzie testified that this straightening caused by muscle spasm is
a common occurrence in people with injuries to the spine.

[47]        
Dr. McKenzie also testified to two other
injuries: an injury to the sacro-iliac joint and diffuse disc bulge and disc
protrusions.  He noted an increased uptake in the right sacro-iliac joint,
which the bone scan report indicated to be due to arthritis in the joint.  However,
Dr. McKenzie stated at trial that such a finding was speculative and that there
were other possible explanations such as infection, tumour or injury to the
joint.  The plaintiff’s records show no indication of arthritis, infection or
tumour to that joint and therefore, Dr. McKenzie deduced that there must be an
injury to that joint.

[48]        
With respect to the CT scan results which showed
a diffuse disc bulge and a disc protrusion at L4-5, Dr. McKenzie noted that the
plaintiff was asymptomatic before the accident.  Dr. McKenzie indicated that an
asymptomatic disc bulge is possible in a man the plaintiff’s age who does heavy
work, and that it is impossible to say with certainty whether or not it
pre-existed the accident, however he testified that it is more probable that in
combination with the mechanisms of his injury and the complaints of lower back
pain going down into the buttocks and legs, that the disc protrusion was a
result of trauma, but that it was not possible to be certain.

[49]        
The CT scan also showed degenerative changes in
the disc space area in the form of bone spurs which narrow the canal, with the
overall result of mild to moderate central canal stenosis at L4-5.  However,
because the CT scan was not done until three years post-accident, he stated the
degeneration could have been caused by the trauma but it was not possible to
make this link with certainty.

[50]        
Finally, Dr. McKenzie also noted upon
examination slight wasting (loss of muscle bulk or atrophy) of the right
trapezius muscle, which is part of the neck, along with tenderness noted at C4
and C5.  Dr. McKenzie attributed this atrophy to disuse as a result of pain.

[51]        
At the time of the second accident, the plaintiff
reported that he had only recovered 10-20% from the first accident.  Following
the second accident, the plaintiff did not have any new reports of pain,
however, he did experience a worsening of the pain experienced after the first
accident.  Dr. McKenzie concluded that the ongoing injuries suffered by the
plaintiff were caused by the first motor vehicle accident and then exacerbated
by the second.  With respect to the low back pain, Dr. McKenzie was of the
opinion that the plaintiff either had pre-existing degenerative disc disease and
mild facet joint arthropathy which was rendered symptomatic by the accident or
the accident itself caused a disc injury and/or a facet joint injury. 

[52]        
Dr. McKenzie recommended treatment with
non-narcotic analgesics, stretching and strengthening, and modifiying activity
to avoid pain.  He also suggested the use of a lumbosacral corset for any heavy
work. 

[53]        
Despite these treatment options, Dr. McKenzie’s
opinion was that the plaintiff’s lower back pain was chronic and because there
are no surgical procedures that would help alleviate the plaintiff’s pain, his
prognosis for recovery was unlikely, the plaintiff would probably live with
pain for the rest of his life and would not likely be able to return to heavy
work.  While he acknowledged that there was an element of a chronic pain
process superimposed on the plaintiff’s injury, in that his pain may be
accentuated by anxiety and depression, it was Dr. McKenzie’s opinion that
it was all caused by the motor vehicle accident. 

[54]        
Dr. McKenzie concluded that no further
investigation or treatment other than what was mentioned above would be
beneficial and it is unlikely that the plaintiff would ever require surgical
management of his problems. 

Liability and Causation

[55]        
Based on the evidence of Dr. McKenzie, the
plaintiff submits that, but for the sole negligence of the defendants, he would
not have suffered from the fractures to his transverse process, disc
protrusions and trauma to the sacroiliac joint.

[56]        
The defendants assert that causation is not
established and that there was an intervening event.  In the alternative, if
the injuries were caused by the accidents, the defendants argue that the
plaintiff is liable to the extent of 50% for his injuries due to his
contributory negligence and that any award should be reduced by such and
further reduced by 20% in light of the plaintiff’s failure to mitigate his
losses.

[57]        
The defendants submit that an appropriate award
in the circumstances is: $75,000 for general damages; no award for past wage
loss; $20,000 for future loss of capacity and $5,000 for future cost of care,
totalling $100,000.  However, given the plaintiff’s contributory negligence the
award should be reduced by 50%, and his failure to mitigate should reduce the
award by another 20% and in light of the intervening event, the washout fall,
the plaintiff’s damages should be limited to $30,000 plus taxable costs and
disbursements.

Causation

[58]        
The defendants submit that the plaintiff has not
proved on a balance of probabilities that the disc protrusion was caused by the
accident and that Dr. McKenzie jumped to the conclusion that it was a
result of trauma, despite his submissions that asymptomatic disc injuries can
exist in men of the plaintiff’s age who perform hard labour.  He also admitted
that it was hard to tell because the CT scan had been done three years after
the accident.  Therefore, his conclusions are not supported by his evidence and
at best Dr. McKenzie can conclude that the plaintiff has non-specific low back
pain and cannot conclude that it was caused by trauma instead of being the
result of a pre-existing disc degenerative disease or arthritis that became
symptomatic as a result of the accident.

[59]        
The defendants submit that the evidence of Dr.
McKenzie is pure speculation and suggest that his findings with respect to the
injuries of the plaintiff have not been proven on a balance of probabilities to
be caused by the motor vehicle accident of July 25, 2000.

[60]        
The defendants left it to the Court to determine
from the medical evidence if there is non-specific back pain resulting from an
L3-L4 transverse process fracture along with some other soft tissue injuries.

[61]        
In addition, the defendants assert an
intervening event.  While working at Pure Energy Services in March 2006, the
plaintiff fell into a washout, a deep hole filled with water, which had frozen
over.  The plaintiff described the fall as not severe, but one leg plunged
three feet into the hole, while the other stayed on ground level which pulled
his groin. 

[62]        
I accept the evidence of Dr. McKenzie.  I found
him to be a careful and persuasive witness.  I accept his medical finding that
the plaintiff suffered a fracture of the tranverse processes at L3 and L4, an
injury to the sacroiliac joint and that formerly asymptomatic disc bulges and
protrusions became symptomatic as a result of his injuries.  I accept that the
plaintiff has proved on a balance of probabilities that the symptoms, including
non-specific back pain that he currently suffers from, including disc
protrusion, were caused by the first accident and the pain from those injuries
was aggravated by the second accident.

[63]        
While none of the doctors could say with
certainty that the disc problems were caused by the accident, this is not the
standard required.  Dr. McKenzie testified, and I accept, that it is more
probable than not that they were caused by the injury.  This is supported by
the evidence of Dr. Dercksen who noted the injuries were more than normal
degeneration for someone of the plaintiff’s age. 

[64]        
Therefore, I agree with the plaintiff that, on a
balance of probabilities, but for the negligence of the defendants, the
plaintiff would not have sustained the injuries that he did, and  the plaintiff
has met the test for causation: Resurfice Corp. v. Hanke, 2007 SCC 7 at
paras. 18-28, [2007] 1 S.C.R. 333. 

[65]        
With respect to the defendants’ assertion of an
intervening event, the washout fall merely aggravated the injury to the
plaintiff’s groin area.  It had no effect on any other symptoms arising from
the motor vehicle accident and therefore it is not a sufficient consideration to
account for the pain from which the plaintiff currently suffers which was
caused solely by the defendants’ negligence.

Contributory Negligence

[66]        
The defendants argue that the plaintiff was
contributorily negligent to the extent of at least 50% for being on foot in
dark clothing and without a flashlight on a dark roadway without street
lights. 

[67]        
The question which must be asked in this respect
is whether the plaintiff failed to take reasonable care for his own safety and
if his failure was one of the causes of the accident: Bradley v. Bath,
2010 BCCA 10 at p. 8.

[68]        
I accept the plaintiff’s evidence that it was
dusk but not dark enough for him to require a flashlight and therefore the
plaintiff was not contributorily negligent and the defendants’ liability should
not be reduced as such.

[69]        
I note as well, that while carrying a flashlight
might be a prudent practice for all pedestrians in dark areas, it is not a
universal or even common requirement, no more than it is wise, but not common,
for pedestrians to wear reflective traffic vests. 

[70]        
I note, too, that the plaintiff testified he
paid heed to the sound of the oncoming car and took several steps off the
roadway to be out of its way.

[71]        
I find the plaintiff did take reasonable care
for his own safety by trying to stand well out of the roadway and to avoid the
oncoming vehicle.

[72]        
I find no contributory negligence on the part of
the plaintiff.

Failure to Mitigate

[73]        
The defendants argue that the plaintiff’s drug
use is interfering with his ability to gain and maintain employment and is the
real cause of the downward spiral in his life.  As a result, his drug use
constitutes a failure to mitigate his damages.  His failure to get himself into
a program and get himself free from his pre-existing and continuing drug
addiction constitutes a failure to mitigate his wage loss and his pain. 
Because his drug use pre-dated the accident, the defendants submit they should
not be required to compensate him for it and in light of his failure to seek
treatment, any award with respect to past wage loss and future loss of capacity
should be reduced for failure to mitigate.

[74]        
The defendants submit that the plaintiff has a
history of drug use involving marijuana and alcohol and had used
methamphetamine prior to the accident, possibly as early as between February
and April of 2000; had used speed or amphetamine when he was a teenager, as
early as 1985 or 1986; and frequent marijuana use, at times daily, when he was
21.  He also admitted to trying LSD, cocaine and heroin when he was younger. 
The defendants submit, that based on the plaintiff’s position that the accident
led to his drug use, the plaintiff is in denial about his history and extent of
drug use prior to the accident and that the evidence actually suggests a
significant drug abuse problem existed well before the motor vehicle accidents.

[75]        
Furthermore, the defendants submit that the
plaintiff did not use drugs pre-accident for pain, but for recreational
purposes. They submit that his drug use post-accident was a continuation of his
predisposition to use non-prescription drugs and therefore the defendants are
not responsible for this problem from a causation perspective and for the fact
that his drug problem undermines his ability to become and remain employed.  Finally,
the defendants also point to numerous incidents where the plaintiff would mix
cocaine and alcohol which would result in hospitalization and aggravation of
his atrial fibrillation. This is aggravating his injuries.

[76]        
In Prasad v. Sedivy, 2008 BCSC 443, the
defendant attempted to argue failure to mitigate based on the plaintiff’s
addiction to narcotic analgesics.  Mr. Justice Williamson dismissed this
argument.  The medication in that case was prescribed by the plaintiff’s doctor
to treat his injuries and the plaintiff followed the doctor’s directions.  The
fact that he became addicted was not laid at his feet. 

[77]        
The present case is different.  Aside from the
suggestion that the plaintiff may already have been abusing drugs at the time
of the accident, the drugs the plaintiff was using post-accident were not
prescribed to him, but were purchased from a friend.  The plaintiff knew or
ought to have known there was an inherent risk in taking non-prescribed drugs.  His
drug abuse is not a result of the accident or the fault of the defendants and
his use of non-prescription medications does amount to a failure to mitigate in
these circumstances because it interfered generally with his recovery.  There
will be a general reduction of his damages by 20%.

Damages

Non-Pecuniary Damages

[78]        
The purpose of non-pecuniary damage awards is to
compensate the plaintiff for “pain, suffering, loss of enjoyment of life and
loss of amenities”: Jackson v. Lai, 2007 BCSC 1023, B.C.J. No. 1535 at
para. 134; see also Andrews v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229; Kuskis v. Tin, 2008 BCSC 862, B.C.J. No. 1248.  While each
award must be made with reference to the particular circumstances and facts of
the case, other cases may serve as a guide to assist the court in arriving at
an award that is just and fair to both parties: Kuskis at para. 136. 

[79]        
There are a number of factors that courts must
take into account when assessing this type of claim.  Justice Kirkpatrick,
writing for the majority, in Stapley v. Hejslet, 2006 BCCA 34, 263
D.L.R. (4th) 19, outlines the factors to consider, at para. 46:

The inexhaustive list of common factors
cited in Boyd [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] B.C.J. No. 163, 2005 BCCA 54
(B.C. C.A.)).

[80]        
The plaintiff testified that his injuries have
devastated his life.  Prior to the accident he was earning a good wage, getting
good jobs and spending time with his young son.  Following the accident the
plaintiff testified that he felt helpless, he began self-medicating with
various drugs which he denied ever taking before the injuries, was incarcerated
and eventually became hopeless and depressed.  He testified that he felt like a
complete failure in life.  While he used to be a good care-taker for his son,
he could no longer financially care for him and eventually lost contact with
his son.  He also experienced constant pain, disability and a loss of
independence.   He was unable to work and was forced to sell most of his
possessions and move off the Reserve. The injuries also had a devastating
emotional effect.

[81]        
Given Dr. McKenzie’s negative prognosis that the
plaintiff may continue to experience physical pain indefinitely, the plaintiff
hopes to learn to cope with it better and avoid activities that aggravate it.

[82]        
The plaintiff asserts that the appropriate award
under this head of damages is $130,000 based on the range of awards for cases
with similar facts: Liu v. Hansen, [1996] B.C.J. No. 591 (B.C.S.C.); Kosugi
v. Krueger, 2007 BCSC 278; and Tabrizi v. Hallon Machine Inc.,
[1996] B.C.J. No.1212 (B.C.S.C.).

[83]        
It is the defendant’s position that the
plaintiff had significant depression problems and learning difficulties prior
to the two accidents which explain his low income prior to the accidents.  Dr.
Dercksen testified to the possibility that the defendant had a pre-existing
underlying depression.  There is a record of a hospital stay in 1990 in
Chilliwack Psychiatric.  The plaintiff also admitted that he was depressed in
1998 when his relationship with his common-law wife began to deteriorate and he
attended at Quesnel Mental Health.

[84]        
Furthermore, because the defendants argue that
the plaintiff’s drug addiction preceded the motor vehicle accident, the
defendants’ position is that the events that follow; unemployment, loss of
possessions, incarceration and impairment of his relationship with his son are
more consistent with his continuing descent from drug abuse then as a result of
the motor vehicle accident and the injuries arising from it. 

[85]        
The defendants assert that the plaintiff’s drug
use was strictly recreational and not to treat pain and he used the pain as an
excuse.  In addition, because of his drug use, the RCMP had begun to take
notice of him and he was asked to leave the Reserve, not because he was
impecunious as a result of the accident, but because of his drug use and
involvement with the drug subculture.

[86]        
In light of the foregoing, the defendants submit
that an award of $75,000 for non-pecuniary damages is more appropriate for the
objective injuries that were caused by the accident: Knezevich v. Cannon,
2000 BCSC 841; Fennellow v. Falez, [1993] B.C.J. No. 2445 (B.C.S.C.);
and Hadland v. Thompson, 2002 BCSC 380.  It should be noted, however,
that it was also the defendants’ position that this amount be reduced by 70%
for contributory negligence and failure to mitigate.

[87]        
As a result of these accidents, the plaintiff
sustained significant injuries and suffered from a great deal of pain, for
which he is entitled to recover damages.  However, while I have the greatest
sympathy for the plaintiff’s emotional suffering, there is evidence before this
Court that this is a pre-existing condition from which the plaintiff had
already been suffering and therefore this is not a ‘thin-skull’ situation.  The
defendants are not liable to compensate the plaintiff for a condition which was
already manifest at the time of the accident.

[88]        
In light of the plaintiff’s suffering, and taking
into consideration his pre-exisiting condition and its contribution to his
chronic pain, an award of $100,000 for non-pecuniary damages is appropriate.

Past Wage
Loss

[89]        
Following the end of his medical employment
income in 2000, the plaintiff did not return to employment.  The plaintiff
testified that in 2001 he did not work at all, although he did assist a friend
in mineral exploration.  In 2002, he lived with his mother, which he said was
in a remote location so he was unable to gain employment.  In 2003, the
plaintiff was incarcerated.  When he was released he moved back in with his
mother and helped her fix her trailer and did odd jobs into 2004.  He
testified, however, that the pain was bad with any extended work.  In 2004, the
plaintiff sold some property he owned for which he received $10,000 which he
used to purchase a truck and camper and he headed to Fort St. John to look for
work.  When he got there, however, the season was ending so he did not gain
employment until approximately April of 2005, when he found work in the oil and
gas industry.  In the beginning, he worked the day shift in rigging, but it
quickly became too difficult and physically demanding for the plaintiff and he
switched to the night shift, which was more of a monitoring role.  He worked in
this employment until December 2006, taking only one month off when he
re-injured his groin falling into a well-head that had frozen over.  The
plaintiff left the oil and gas industry in December 2006, because, he testified
that due to his pain and depression medications, he was having difficulty
staying awake.  In 2007, he took odd jobs, but usually had to quit because of
pain or was fired because he was too slow due to his limitations.  The
plaintiff left Fort St. John in 2007 and has been living with his mother, on
income assistance, ever since.

[90]        
Based on his Income Tax summaries from 1993 to
2001, 2005 and 2006, the functional capacity reports prepared by Dr. Wallace
and Mr. Padvaiskas, discussed below; Dr. Dercksen’s opinion and the testimony
of Kevin Turnbull, the plaintiff argues that he has lost approximately $35,000
per year, which he asserts is a conservative estimate.  Prior to the accident,
the plaintiff took time off work to raise his son, so his past earnings are not
reflective of what he would have earned, and at the time of the accident he was
getting prestige jobs and could have been earning as much as an average worker
which is $47,162 per year.

[91]        
The plaintiff submits that an award of $199,526
under this head of damages, based on an estimated salary of $35,000 per year,
is an appropriate amount taking into account all the contingencies.

[92]        
The defendants argue that in light of psychotic
breakdowns and paranoia experienced by the plaintiff while using
methamphetamine, his drug use is what interfered with and will interfere with
his ability to gain and hold employment and not his pain.  The plaintiff had
obtained work in the oil and gas industry in 2005, but says that he could not
work through the pain.  However, the defendants point to the fact that the
plaintiff admitted that he had been using cocaine at the time.  The defendants
point to this fact also to support an inference that the plaintiff’s drug use
has continued, despite his alleged abstention. 

[93]        
The defendants also submit that based on the
income the plaintiff earned in 2006 at Pure Energy Services, averaged over the
six years post-accident, he was making more money than compared to what he was
earning in the six years prior to the accident.  The plaintiff’s lack of income
in the early years following the accident was a result of drug use and not his
injuries and in light of his failure to mitigate by seeking treatment, the
plaintiff should not be entitled to any past wage loss.

[94]        
In addition, the defendants question why the
plaintiff left Pure Energy, in any event.  The plaintiff testified that the
night work only involved checking the pressure gauge for five minutes out of
every half an hour, which is not taxing work and he was capable of performing
it for the months following the washout fall until December.  The defendants
submit that either the fall as an intervening event or his addiction to drugs
caused him to leave his employment, but either way, it is not the
responsibility of the defendants.

[95]        
Since then, the defendants argue the plaintiff
has continued to fail to mitigate his losses by not seeking additional
employment either with Pure Energy or with his cousin, Darren Smaill, who owns
a successful roofing company and has work available that might allow for the
plaintiff’s injuries.  The plaintiff has a duty to mitigate his damages by
seeking a line of work that can be pursued despite his injuries from the
accident, even if it requires some additional training: Parypa v. Wickware,
1999 BCCA 88 at para. 67, 169 D.L.R. (4th) 661 [Parypa].  The plaintiff
did take training for Pure Energy, became qualified for work within his
abilities and then left.  The defendants assert that this was due to his
failure to mitigate his drug addiction by seeking treatment.

[96]        
It is also the position of the defendants that
the plaintiff’s functionality is greater than he is asserting.  In support, the
defendants point to the lack of consistency in the plaintiff’s evidence and his
lack of credibility.  They also point to evidence that the plaintiff worked out
with weights regularly while incarcerated and was able to perform incredible
feats of strength while training for his job and performing his duties at Pure
Energy Services.  In 2003, he also worked on his mother’s trailer, performing
labour tasks, for several months, often putting in full days.

[97]        
In response to the report of Mr. Padvaiskas, the
defendants note that there was no discussion with the plaintiff about the fact
that he had helped put an addition on a trailer, nor was there any discussion
of his weight training in 2003.  Despite this, and though Mr. Padvaiskas was
cautious, he did concede that if accommodation could be made to take some of
the heavier stresses off the plaintiff it might be possible, at least
theoretically, for him to return to roofing.

[98]        
Should an award for past wage loss be made, including
a reduction for the plaintiff’s failure to mitigate, the defendants note that
the plaintiff had been on Social Assistance in 2005 and has been receiving
Income Assistance since December 2007 and submit that these amounts will have
to be deducted in the event of any award for past wage loss or future loss of
capacity, as they anticipate the payments will continue: Krangle (Guardian
ad litem of) v. Brisco, 2002 SCC 9, [2002] 1 S.C.R. 205; and M.B. v.
British Columbia, 2003 SCC 53, [2003] 2 S.C.R. 477.  Furthermore, for the
period of time that the plaintiff worked at Pure Energy, there was no wage
loss, and thus any amount awarded should not include that period.

[99]        
I would also note that the plaintiff cannot
benefit from an award for past wage loss for the period of time that he was
incarcerated, a concession made by plaintiff’s counsel at trial.

[100]     The plaintiff was unemployed at the time of the accident and had had
only intermittent employment prior to that.  His periodic and scattered
employment since the accident mirrors his employment patterns pre-accident. 
While the plaintiff asserts that he was about to kick start his career when the
accident occurred, I find that there is no evidence before this Court to
support that contention.  The plaintiff does not have a reliable work history
and therefore I cannot conclude that but for the accidents, he would have
earned any more than he did following the accident, particularly when, on
average, he earned more post than pre-accident.

[101]     In the result, the plaintiff is not entitled to an award for past
wage loss.

Loss of Future Earning Capacity

[102]     Following the accident, the plaintiff has attempted various types of
employment.  However, he testified that he endures pain when he works.  While he
tolerated some work better, he still experiences pain which increases with physical
activity and he reports numbness in his buttocks if he is required to sit for
extended periods of time.  He also reports that he is able to walk for an hour,
but for any longer period of walking he requires breaks.  He currently suffers
from depression, loss of energy, decreased sleep, decreased appetite and
fatigue.  He also reports being irritable, agitated and indecisive.  The
plaintiff would like to be able to return to the oil and gas industry as a
power engineer, which would require him to take additional training and because
space is limited in the courses, he would have to update his GED to qualify for
a spot.

[103]     On June 12, 2008, Mr. Padvaiskas, a consultant occupational
therapist conducted a work capacity evaluation on the plaintiff to assess his
functional abilities and limitations based on his assessment of the plaintiff,
a review of the medical reports and the plaintiff’s employment history.  The
report stated that the plaintiff’s self-reports were reasonably consistent with
the clinical measures of his functional abilities and limitations. 

[104]     On the basis of the plaintiff’s demonstrated performance during work
capacity testing, the report concluded that the plaintiff does not demonstrate
the minimum tolerances related to strength, limb coordination or body positions
to perform roofing work.  He does not demonstrate sufficient strength
tolerances to meet the strength demands nor the durability to manage strength
demands over a prolonged period of time.  He showed limited tolerance for repetitive
upper extremity movements like hammering.  He also had limited tolerance for
sustained low level positioning and non-neutral spine positions like bending or
stooping.  Because roofing requires the above actions, his capacity in these
activities would be limiting.  On the basis of the medical reports and
particularly in relation to the guarded prognoses, the report concluded that a
return to ordinary roofing work in the future is not anticipated. 

[105]     Furthermore, based on an assessment of the physical demands associated
with the oil and gas industry, the report concluded that the plaintiff is also
not suited for this type of work.  While he was given modified duties, his pain
continued to distract him and his medication affected his alertness which
resulted in safety hazards and thus the report concluded that even the modified
work is unsuitable.

[106]      The report also noted that the plaintiff suffers psycho-emotional
complications which affect his functional capacity, but which were beyond the
scope of the report.  However, the report did recommend additional consultation
to examine those issues and their impact on his employability.

[107]     Dr. Wallace prepared two reports with respect to the plaintiff’s
employability and potential retraining options based on his residual and future
functioning capabilities.  His expertise is in rehabilitation psychology with a
specialty in vocational rehabilitation.  The conclusions in the report are
based upon the plaintiff’s age, education, medical history and current functioning,
his employment history, interests and skills.  In preparation for the report,
Dr. Wallace administered tests on academic achievement, aptitude and vocational
interest.  The first report was prepared on August 9, 2004.  The second report,
dated March 2, 2009, does not differ substantially from the first.

[108]     Dr. Wallace noted that the plaintiff’s pre-injury vocational history
was based in physically demanding tasks, whose skills are not transferable to
less physically demanding vocations.  He also found that the plaintiff’s
physical limitations would preclude him from returning to his occupation as a
roofer and due to the guarded prognoses in the medical evidence provided to Dr.
Wallace, he concluded that it is unlikely that the plaintiff will ever be able
to return to physically demanding jobs.  Dr. Wallace ruled out
apprenticeship for new trade skills as most require at least medium strength
and it does not appear that the plaintiff will be able to meet those
requirements on a sustained basis.  He found that low skilled direct entry
occupational positions in the sales or service oriented industries are the most
realistic options for the plaintiff since they will not require extensive
physical labour and will allow him to sit, stand and/or walk throughout the
workday.  However, he noted that these jobs are often low paying or only available
on a part-time basis.

[109]     Dr. Wallace therefore considered the potential for the plaintiff to
learn new vocational training skills that would be more in keeping with his
physical capabilities. His aptitude test results showed that he would be able
to complete short vocationally-oriented formal educational training programs (usually
up to approximately one year), as well as on-the-job training, including but
not limited to:  automotive parts person, computer-aided design draft person,
and small engine repairer. Therefore, Dr. Wallace’s opinion was that the plaintiff
should seek formal training to learn new skills that are more compatible with
his residual physical ability and to qualify for this kind of training he would
have to upgrade his basic education. 

[110]     While Dr. Wallace found that the plaintiff had the aptitude
potential for job training, he noted that this does not imply that he would
necessarily be successful as he would still face substantial challenges.  Dr.
Wallace noted that the plaintiff’s chronic pain and his depression could
negatively interfere with his ability to succeed in any training programs.  Therefore,
the plaintiff would require treatment for his depressed mood and ongoing pain before
he could succeed in a retraining program.

[111]     The updated report, dated March 2, 2009, contains similar findings
but took into account the plaintiff’s employment experiences since the first
report, including his work in the oil and gas industry as well as the work
capacity evaluation report from Mr. Padvaiskas, dated July 14, 2008, which
concluded that the plaintiff was not suitable for full-time work outside his
demonstrated tolerances.  The report noted that his capacity for full-time work
is influenced by physical limitations and behavioural complications.  Dr.
Wallace concluded that the plaintiff’s residual employability had not changed
since the first assessment.  The range of occupation options which he could now
consider were still reduced by his functional limitations and with respect to
his work in the oil and gas industry, he did this only with increased pain and
discomfort.  Again, Dr. Wallace noted that his success in training for any new
positions will be impeded if he does not first deal with treating his mood and
pain disorders.  Dr. Wallace recommended that the plaintiff attend a four to
six week multidisciplinary pain clinic, to assist in his ability to cope with
his pain.  Dr. Wallace also recommended ongoing psychological intervention
with a psychologist.  Following treatment, the plaintiff could consider
completing a formal training program, requiring him to update his education to
include a high school diploma.

[112]     In cross-examination Dr. Wallace admitted that his assessment of the
plaintiff’s potential is based on him being sober and off street drugs and that
taking non-prescription drugs would impact his rehabilitation and training
programs.

[113]     Kevin Turnbull prepared an actuarial report to assist in determining
the plaintiff’s past and future loss of earnings.  Based on this report and his
employment in the months leading up to the accident, from the time of trial to
age 65, the plaintiff would have earned $906,105, which works out to $603,856
with reductions for market contingencies.  The report also includes
calculations of the average earnings of a Canadian male with a high school
diploma and no further education, $230,301 and the average earnings of Canadian
males with a non-university certificate less than one year in length, $347,364,
for the same time period and taking contingencies into account.

[114]     The plaintiff argues that any success in retraining would be
contingent upon him successfully dealing with his psychological and physical
problems and given that his pain will continue, the only improvement he can
expect is his ability to cope.  Taken with his level of education and the
length of time he has been out of school, it is the plaintiff’s position that
while it is possible, it is unlikely that he will succeed in completing any further
training that will allow him to earn more than an average roofer and therefore
he will have to continue to work in lower paying direct entry jobs. 

[115]     The plaintiff submits correctly that future loss of capacity need
only be proven on the basis of a substantial or real possibility: Steenblok
v. Hutcheon (1990), 46 B.C.L.R. (2d) 133, 5 W.W.R. 365 (C.A.).

[116]     Based on the foregoing, the plaintiff asserts that the appropriate
award for loss of future earning capacity should be the difference between what
he could have earned and what he will, based on probability and possibility,
and should be assessed as $325,000.00 or a loss of between $25,000 to $35,000
per annum over time.

[117]     The defendants submit that the plaintiff’s continuing drug use and
failure to seek treatment are impairing his ability to work or to take courses
to gain further vocational skills.  In addition, the defendants point to the
fact that the plaintiff was depressed prior to the accident and therefore any
inability to work as a result of depression, is not the fault of the
defendants.

[118]     It is the position of the defence that the future loss of capacity
has not even begun to accrue for the plaintiff and is not likely to accrue for
some time, if at all, until these pre-accident depression problems and drug
addiction issues are addressed.  Neither of these problems was caused or
contributed to by the accidents and therefore the defendants bear no
responsibility for treatment to ameliorate their effect.

[119]     Also, in light of his possible opportunities for modified work with
his cousin for which the physical demands are consistent with his modified work
at Pure Energy, the defendants submit that there is only a slight reduction in
future loss of capacity, if any, because of the significant residual functional
abilities of the plaintiff.  In the alternative, the defendants submit that the
plaintiff can return to night shifts in the oil and gas industry, like he had
at Pure Energy.  This is supported by the report of Mr. Padvaiskas who
felt it was reasonable to anticipate the plaintiff being able to physically
perform the work required there.

[120]     The defendants contend that the plaintiff’s claim for loss of future
income is not borne out by the evidence.  The defendants question the $35,000 per
year estimate of earning capacity given by Mr. Turnbull in his evidence, given
that the most the plaintiff has ever earned, not counting social or employment
assistance was $20,803, with an average over the years being $8,375.50
pre-accident and $10,241.42 post accident.  Mr. Turnbull’s report is based on
pure speculation that the plaintiff has earned close to $35,000.  In
cross-examination, Mr. Turnbull acknowledged that this amount was based on
the statistical average male Canadian roofer and therefore is not a good
indicator of what his actual earnings might have been, but what he might have
had the capacity to earn.

[121]    
A plaintiff’s past earnings are a significant
factor that must, at law, be considered in assessing a loss of income earning
capacity: Parypa; Vaillancourt v. Molnar, 2002 BCCA 685, 8
B.C.L.R. (4th) 260 [Vaillancourt]; and Rorison v. Dornan, [1993] B.C.J.
No. 752 (B.C.S.C.) [Rorison].  The case law was summarized in Vaillancourt,
at para. 72, where the Court stated:  “one of the factors that must be taken
into account is whether the plaintiff has been rendered less capable overall
from earning income.  One of the matters taken into account in arriving at
the answer to that factor is the work history of the plaintiff.”  The Court in Parypa,
at para. 75, stated:

 But
perhaps the factor most difficult to overlook is the appellant’s sporadic work
history.  …  While past work history is not determinative of what will occur in
the future, it is a significant factor to consider when estimating the
likelihood of what would have happened in the future but for the accident.

[122]     The onus is on the plaintiff to prove that there is a substantial
possibility of a future income loss and being left with a reduced earning
capacity as a result of injuries from the accident, while entitling the
plaintiff to some award, is not in and of itself sufficient to attract a large
award for loss of earning capacity.  Future employment prospects are governed
by more than just the plaintiff’s injuries and include considerations of
lifestyle, pre-existing medical conditions and “a lack of any focused ambition
to be employed”: Rorison.  As such, pre-accident employment history is
a fair indicator of future prospects.

[123]     The defendants submit that Perren v. Lalari, 2008 BCSC 1117,
changed the approach to awards for loss of capacity and argue that courts have
allowed for modest awards for future loss of capacity where the evidence lacked
the substantial probability or likelihood that the injuries would affect
earning, but because earning capacity is a capital asset, a modest award can be
given when the injuries render the plaintiff less marketable: Pallos v.
ICBC (1995), 100 B.C.L.R. (2d) 260, 3 W.W.R. 728 (C.A.).  In light of the
case law, the defendants submit that a modest award of $20,000 for loss of future
earning capacity is reasonable.

[124]     The plaintiff submits that past employment history should only be
relevant where the party has started their career and should not apply to the
earnings of a single parent who was about to start his career, as they are not
reflective of what he would have earned his whole life.  The plaintiff
maintains that his career was about to take off and he would have been earning
somewhere in the range of $45,000-$65,000 a year, based on the evidence of his
cousin Darren Smaill.  As a result of his injuries, he will be forced to take
low paying direct entry level jobs instead.

[125]     Based on the evidence of all the doctors and in light of the
plaintiff’s functional limitations, I am satisfied that it is unlikely that the
plaintiff will be able to return to work as a roofer or to any labour intensive
work and therefore he will have to train for a new career or accept lower
paying jobs.  That being said, I also acknowledge that the plaintiff’s success
depends upon the plaintiff first dealing with his depression and ongoing pain. 
While there is evidence that the plaintiff’s depression pre-existed the
accident, it is also clear that the accident aggravated the underlying
condition.  As a result of the intertwining of the plaintiff’s chronic physical
and emotional pain since the accident and the probability the accident was a
substantial contributor to the depression, I find that the plaintiff will
benefit from treatment at an interdisciplinary pain clinic, prior to
retraining, and that compensation for this is the responsibility of the
defendants under the head of cost of future care.

[126]     The plaintiff submits that based on the difference between what he
could have earned in roofing and what he will earn, and based on probability
and possibility, his future wage loss should be assessed at $325,000.  In my
view, this amount is too high.  The plaintiff has not been a reliable and
consistent worker in the past and there is no evidence before this Court that
would suggest that, but for the accident, the plaintiff would have been a
successful roofer and maintained steady employment in the future, especially in
light of the fact that he has not sought modified employment with his cousin
and the fact that he left his modified employment at Pure Energy.  This, taken
with the possibility that he will not be able to avoid his drug dependency in
the future, calls for a reduction in the award.  On the other hand, the
suggestion of an award for loss of future capacity of $20,000 by the defendant is
much too low, given the evidence of a permanent reduction in the plaintiff’s
residual functional capacity.

[127]     It is my view that, while retraining will be difficult for him, the
plaintiff appears to be motivated.  I conclude that the plaintiff may be
successful at retraining for a new career and will therefore be capable of
earning a salary that is comparable to what he would have earned as a
successful roofer.  I therefore award $140,000 to the plaintiff for loss of
future capacity as an amount sufficient to allow the plaintiff time to seek
treatment for his chronic pain, update his GED, attend a training program and find
employment.  As well, $140,000 is, in my view, a reasonable assessment of the
loss of earnings he would suffer over time as a result of his injuries.

[128]     While I note there is a contingent possibility that the plaintiff
will not be able to recover from his dependence on non-prescription drugs, and
while I also note that that dependence may interfere with his ability to
complete his re-training, this should not go to reducing his award for loss of
future capacity.  The award provides the plaintiff with the opportunity to
train for a new career and thus go some way towards replacing his loss of a
capital asset, his ability to earn a living as a roofer.

[129]     An appropriate award for loss of future earning capacity is $140,000.

Future Cost of Care

[130]     The estimated present value of all of the costs identified in the
report of Mr. Padvaiskas, dated July 14, 2008, and calculated in a report
by Kevin Turnbull, dated March 1, 2009, is $41,084, which does not include the
cost of the pain clinic, recommended by Dr. Wallace, which is estimated to cost
approximately $22,500, but does include:

[131]     The plaintiff claims tax gross up on the cost of care and will make
further submissions if necessary.

[132]     Dr. Wallace also supported the suggestion that the plaintiff
requires ongoing psychological treatment with a registered psychologist and
also suggested a formal job training program. The plaintiff wishes to do a
power engineering course in Alberta. 

[133]     The defendants submit that the future care costs sought by the
plaintiff are for treatments and courses that are not the defendants’
responsibility and would in the result place the plaintiff in a position better
than he was in prior to the accident.

[134]     Again, the defendants argue that they are not responsible for
psychological treatment as the plaintiff’s depression is a pre-existing
condition.  The defendants also submit that there is no need to send the
plaintiff to a pain clinic in Alberta when they have similar programs here.  In
addition, the treatment at these facilities is multidisciplinary and thus
includes psychological treatment for which they again submit they are not
responsible for.

[135]     The defendants submit that the motivation for the plaintiff to go to
Alberta is to give him the opportunity to reconnect with his son.  However, the
defendants assert that the failure to maintain a connection with the
plaintiff’s son has nothing to do with the accident.  Therefore the defence
submits that they are not responsible for any care items, transportation or
accommodation costs to facilitate a re-establishment of the plaintiff’s
relationship with his son. 

[136]     In addition the defendants submit that they are not responsible for
the cost of training at all.  The plaintiff had an opportunity to advance his
education and increase his income while working at Pure Energy.  They argue this
opportunity was similar to the power engineering course he currently wishes to
take.  They say he walked away from this opportunity as a result of his
addiction to drugs.  In addition, the defence states that the defendants are
not responsible for paying for the plaintiff to obtain his Grade 12 equivalency
upgrading.

[137]     The defendants also maintain that there is no necessity that the
expense of a fitness facility should be borne by the defendants; with respect
to homemaking, the defendants assert that the plaintiff is active and is
capable of doing various construction work and therefore, if he can do these
tasks he is capable of doing his own homemaking and yard work.  Also, there is
no evidence that he is incapable of such activities. The defendants argue that
the claim for the lumbosacral corset is based on speculative evidence as to its
effectiveness as opposed to core strengthening exercises.  Finally, the defence
submits that they are not responsible for job search assistance as the
plaintiff has succeeded in obtaining employment in the past on his own.

[138]     This Court has already concluded that the plaintiff will benefit
from treatment at an interdisciplinary pain clinic, for which the defendants
are liable.  However, I agree with the defendants that the cost of the pain
clinic should be much lower because it is not necessary for him to go to Alberta. 
Such facilities are available in British Columbia and it is not the
responsibility of the defendants to pay for the plaintiff to be closer to his
son.  I therefore request submissions from both parties on an appropriate
amount for the cost of treatment and the cost of attendance, room and board, at
a BC pain clinic.

[139]      While I will award the plaintiff the cost of the pain clinic which
includes some counselling, I do not find that the cost of additional psychological
counselling is the defendant’s responsibility.  As stated, the plaintiff’s
emotional problems pre-dated the accident and as such the defendants are only
responsible for the cost of psychological treatment that is related to the
chronic pain, and as a result this Court declines to award costs for future
psychological counselling.

[140]     Furthermore, as this Court has found that the plaintiff is likely to
be able to successfully retrain and, as a result, has reduced the award for
future wage loss, the defendants are responsible for the cost of the
plaintiff’s retraining tuition as part of the cost of future care.

[141]     With respect to the defendants’ submission that they should not be
responsible for updating the plaintiff’s GED, I point out that they must take
the plaintiff as they find him so far as his job prospects are affected, a
matter very much dependent on the plaintiff’s educational level.  Here the
plaintiff must update his GED before he can retrain.

[142]      I conclude that the housekeeping and home maintenance costs are
unnecessary.  I find that the plaintiff is capable of doing a few hours of
housework as it is not heavy labour and it is not for a long period of time.  I
also find that the cost for lumbosacral corsets is unnecessary because the
plaintiff will no longer be doing heavy labour.

[143]     However, I award the cost of vocational counselling and job search
assistance since the plaintiff will need some structured help in this regard.  I
will also award costs for kinesiology, physical therapy and a fitness facility.

[144]     According to the report prepared by Mr. Padvaiskas, the cost for
medications covers the cost of the plaintiff’s two pain medications, and as
such, I find it is reasonable to award him the amount requested.

[145]     Finally, I am concerned about the plaintiff’s ability to manage the sum
of money awarded to him in this judgment and I also include in the cost of
future care, the sum of $1,000 to be used to consult a financial planner.

Special Damages

[146]     The defence submits that the claim for anti-depressants is not
compensable as they were used to treat the plaintiff before the accident and
especially in light of the fact that the plaintiff also chose to self-medicate
with non-prescription drugs. 

[147]     The claim for special damages has been reduced to $100 because the
government paid for the majority of the plaintiff’s medications.  While some of
the medications were  anti-depressants, some were anti-inflammatories.  In
light of this, I accept this to be a reasonable request and award $100 for special
damages.

Conclusion

[148]     In summary, the Court awards:

less a 20%
reduction for failure to mitigate related to the plaintiff’s use of
non-prescription drugs plus interest under the Court Order Interest Act,
R.S.B.C. 1996, c. 79.

[149]    
If necessary, the parties are granted leave to
make further submissions with respect to cost of a BC pain clinic and to costs.

“L.D. Russell J.”

_______________________________________

The Honourable Madam Justice Loryl D. Russell