IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100315

Docket:
M111930

Registry: New Westminster

Between:

Harjit
Singh

Plaintiff

And:

Amrik
Shergill and Harman Tile & Construction Ltd.

Defendants

Before: The Honourable Madam Justice Baker

Reasons for Judgment

[1]            
On Saturday, April 1, 2006, Mr. Singh was
driving, with his wife as a passenger, from his home in Surrey to his niece’s
residence.  His 2005 Dodge Caravan was westbound on 72nd Avenue.  As he
approached the intersection at 120th Street, the traffic light for westbound
vehicles was red.  Mr. Singh stopped behind several other stopped vehicles and
was waiting for the light to turn green when his van was struck from the rear
by an older van driven by the defendant Amrik Shergill, and owned by Mr.
Shergill’s employer, the defendant Harman Tile & Construction Ltd. 

[2]            
Amrik Shergill admits that his negligence caused
the accident.  Mr. Singh suffered soft tissue injuries as a result of the
collision.  He is seeking special damages; damages for the cost of future care;
damages for loss of the capacity to earn income in future; and general damages. 

[3]            
Mr. Singh is currently 55 years old.  He and his
wife have two adult children who live in their home.  Mr. Singh was born and
raised in Singapore.  After graduating from high school, he took a three-year
course in telecommunications and then worked in that field.  He came to Canada
with his family in 1990.  They lived in Toronto for seven years.  After some
temporary jobs, including work as a shipper/receiver, Mr. Singh found work as
an assembly supervisor with a company that manufactured bearings.  Nine months
after moving to Surrey in 1997, Mr. Singh began working with his current employer
as a machine operator, initially working morning shifts, and then, after
January 2002, evening shifts. 

[4]            
Mr. Singh had significant health problems before
the motor vehicle accident which include diabetes, high blood pressure and
elevated cholesterol levels, for which he takes medication. 

[5]            
Mr. Singh had also been involved in a number of
industrial and motor vehicle accidents before the accident on April 1, 2006. 
He had a serious accident at work in February 2002.  His left hand was caught
in a machine and the index, middle and ring fingers on that hand were crushed. 
He was unable to work for about six months, eventually returning to work on a
graduated basis.  He required surgery and skin grafts.  The injury to his hand
interfered with his ability to grip objects.  While recovering from the hand
injury, Mr. Singh became severely depressed and in late September 2002 was
started on anti-depressant medication.  He was also referred to a psychologist
for assessment and treatment.  Mr. Singh recalled having seen the psychologist
for 10 sessions.  His depression gradually resolved by the summer of 2003.

[6]            
In January 2003, Mr. Singh began experiencing
carpal tunnel syndrome symptoms in his left hand.  In September 2005, he had to
have surgery to relieve the carpal tunnel syndrome, and therapy following the
surgery.  After he had recovered from this surgery he returned to work in a
graduated return to work program.  He continued to have difficulty using his
left hand in cold temperatures, and continued to have a problem with his grip,
especially with heavy lifting. 

[7]            
In February 2006, Mr. Singh was experiencing
constant numbness and pain in his middle and small fingers and the Guildford
Hand Clinic and his family doctor, Dr. Ng, both recommended that he
continue with permanently modified duties at work.  Mr. Singh continued to see
his family doctor for ongoing symptoms related to his hand crush injury after
the motor vehicle accident that is the subject of this lawsuit. 

[8]            
In July 2007, Mr. Singh was seen at the Visiting
Specialists Clinic of WorkSafeBC for ongoing problems related to his left
hand.  He described numbness in his fingers and difficulty flexing the
fingers. 

[9]            
In April 2009, Mr. Singh had further surgery on
his left hand; this time to release trapped nerves.  At the time of trial, he
was continuing to receive ultrasound and laser therapy on his hand on a weekly
basis, but testified that the surgeries had improved his grip and that he could
now use his left hand fully.  He had returned to work on June 22, 2009 on a
graduated return to work program.

[10]        
Mr. Singh had also had neck and back problems
before the motor vehicle accident.  A letter written by Mr. Singh’s family
doctor to the Workers Compensation Board on April 2, 2004 indicates that Mr.
Singh had developed an awkward hunched position to his left upper back, neck
and shoulder girdle as a result of his left hand injury, and was having pain in
his neck, back and shoulder. 

[11]        
In May 2004, Mr. Singh was involved in a motor
vehicle accident in which he injured his neck and back.  He missed a few days
of work.  His symptoms eventually resolved after treatment with
anti-inflammatory medication, muscle relaxants, and physiotherapy.   He was
sent for a lumbar x-ray in November 2004. This x-ray revealed that small
osteophytes had developed at several levels of his lumbar vertebrae.

[12]        
In June 2005, Mr. Singh injured the right side
of his lower back at work.  He experienced lower back pain that radiated from
his back down to his right knee.  He began going to physiotherapy in the third
week of August and continued with physiotherapy until late September 2005.   A
lumbar x-ray done in August 2005 again revealed osteophytes in the lumbar
spine.  Mr. Singh was in the habit of using a supportive back cushion in his
vehicle in 2006.

[13]        
When Mr. Shergill’s vehicle collided with the
rear of Mr. Singh’s vehicle on April 1, 2006, Mr. Singh felt his vehicle was
pushed forward a distance he estimated at 10 feet.  The defendant, Mr.
Shergill, disputed this testimony.  He testified that his van was already
slowing down as he came up behind the line of stopped cars and that he braked
hard prior to impact, further slowing his speed.  He said that his vehicle and
the Singh vehicle remained in contact following the collision and that he had
to reverse his vehicle to create space between the two cars.  He saw that there
was damage to the front of his vehicle and the rear of the Singh vehicle.

[14]        
Mr. Singh was wearing a shoulder and lap belt
when the impact occurred, as well as the back support cushion purchased for him
by his niece.  Mr. Singh got out of his vehicle without difficulty and went to
speak to Mr. Shergill.  Mr. Singh testified he was angry about the collision
because he had only owned his van for six months. He noted that there was damage
to the rear bumper and rear hatch door of his van.  He and Mr. Shergill
exchanged insurance and driver’s licence information.  Mr. Singh testified
that his insurer eventually paid just over $2,000 to repair the damage to his
vehicle. 

[15]        
After exchanging information with the defendant,
Mr. Singh got back into his vehicle and he and his wife continued on to their
niece’s home.  Sometime later that day, Mr. Singh drove his wife to a walk-in
clinic because she was complaining of pain.  Mr. Singh did not ask to be
examined because he was not feeling any discomfort.  However, Mr. Singh
testified that the next day, Sunday, he had pain in his neck, shoulder and
lower back.  He went to see his family doctor on Monday, April 3. 

[16]        
According to Dr. Ng’s first medical legal
report, dated November 16, 2007, Mr. Singh reported on April 3 that he had
shooting pains from his lumbar region to his calves.  Examination revealed a
reasonably good range of motion in his neck, tenderness when Dr. Ng pressed on
the paraspinal muscles from the mid-thoracic to lower lumbar area, reduced
range of motion on straight leg raising and forward flexion.  Dr. Ng’s initial
diagnosis was soft tissue strain to the mid to low back.    Dr. Ng recommended
the application of ice, and stretching exercises; and prescribed a muscle
relaxant to be taken at night, and an anti-inflammatory medication to be taken
twice daily. 

[17]        
On April 21, Mr. Singh reported to Dr. Ng that
he was having intense pain in his lower back and some “… chest pain to his
shoulders”.  Dr. Ng referred Mr. Singh for physiotherapy.  Mr. Singh testified
that after a few physiotherapy sessions, the pain in his neck and shoulders
went away but he did not perceive any improvement in his lower back symptoms.

[18]        
Mr. Singh returned to see Dr. Ng about his lower
back problems on June 2.  He reported he was still having back pain that
radiated down his right thigh.  He had stopped going to physiotherapy on May 29
after only five sessions.  Dr. Ng recommended abdominal wall strengthening exercises
to help support the back.  He sent Mr. Singh for lumbar x-rays but these
revealed no change in the condition of Mr. Singh’s back since the x-rays that
had been done in 2004 and 2005.  I conclude from this that the accident did not
cause any injury to the vertebrae or other bony structures in Mr. Singh’s back,
and that the discomfort he has experienced since the accident is solely caused
by strain of the soft tissues in the lumbar area.

[19]        
Mr. Singh saw Dr. Ng again on July 7,
complaining of increased lower back pain with bending at work.  Dr. Ng
recommended that he go back to an active physiotherapy treatment program.

[20]        
However, when seen again on August 16, Mr. Singh
told Dr. Ng that he had not returned to physiotherapy and had tried to exercise
on his own.  He reported that he had been taking one Tylenol 3 once a day.  Mr.
Singh told Dr. Ng that it was inconvenient for him to go to physiotherapy
because he worked until 4:10 p.m.  Dr. Ng recommended back exercises with
guidance from a book called “The Back Doctor”, but it appears that Mr. Singh
did not purchase this book.

[21]        
When seen on September 14, 2006, Mr. Singh
reported he had had increased pain for a week, with difficulty sitting up and
lying down flat.  He had continued to take one Tylenol daily.  He reported that
he had started Tai Chi classes.  Dr. Ng again prescribed a muscle relaxant and
an anti-inflammatory medication.

[22]        
After September 2006, Mr. Singh did not return
to see Dr. Ng about his lower back problem until February 13, 2007.  On that
visit he reported pain radiating from his lower to his upper back, and from his
shoulders to the front of his chest during the previous week.  These symptoms
appear to be different from those earlier reported by Mr. Singh.  Mr. Singh
told Dr. Ng that he thought the pain may have been brought on by heavier
lifting at work, or prolonged sitting at a movie theatre.  He also had a cough
that caused chest wall pain.  Dr. Ng believed that Mr. Singh had had a flare up
of his muscle pain, probably the result of a virus. 

[23]        
When seen in March 2007, Mr. Singh reported
lower back ache radiating to his thighs.  He reported he could not sit
comfortably for more than a few minutes.  Mr. Singh reported that his job
required him to stand and to lift weights of up to 45 or 50 pounds every three
to four hours.  Dr. Ng considered the flare up of lower back ache to be related
to Mr. Singh’s heavy work load and weak core muscles.  Mr. Singh told Dr. Ng
that he had not attended the back rehabilitation program that Dr. Ng had
recommended. 

[24]        
In July 2007, Mr. Singh reported to Dr. Ng that
driving for more than two hours would aggravate his back pain.  He was taking
Advil two to three times a week, and Tylenol twice a week, but the Tylenol
caused constipation.  Dr. Ng noted again that Mr. Singh had still not attended
any back rehabilitation program.  He was hopeful that with adherence to a
regular back and core muscle strengthening program, the flare ups of lower back
ache would decrease in intensity and frequency, but considered that Mr. Singh
might well have back ache in the long term.

[25]        
Dr. Ng noted that Mr. Singh had pre-existing
degenerative changes in his lumbar spine.  His opinion in November 2007 was
that even if the April 1, 2006 accident had not happened, Mr. Singh would have
had gradual degenerative changes to his spine as he aged and that he would
likely have had symptoms of back pain by the time he was in his sixties.  Dr.
Ng’s opinion is, however, that the motor vehicle accident accelerated the
development of these symptoms.

[26]        
Dr. Ng authored a second medical legal report
dated April 4, 2009.  He reported having seen Mr. Singh in November 2007 and
March 2008 when Mr. Singh was experiencing flare ups of his lower back pain for
about a week prior to each visit.  He sent Mr. Singh for another lumbar x-ray
following the March 31, 2008 visit, but it revealed no significant changes,
other than some minor calcification.  Dr. Ng testified at trial that it was
possible that the calcification could be related to the motor vehicle accident,
but his opinion did not rise to the level of probability on the causation
issue, and he had not even mentioned this possibility in his medical-legal
report.

[27]        
Mr. Singh was not seen by Dr. Ng from March
until December 31, 2008.  He reported to Dr. Ng that he had gone to the
emergency department of Langley Memorial Hospital on December 27, 2008 because
of a sudden episode of significant back pain.  Mr. Singh’s son, Gurpal Singh
Sandhu, testified about the trip to hospital on December 27.  He said he was
asleep in his room; heard a yell, went downstairs and found his father bent
over on the couch.  He helped his father up; they waited awhile, and then
decided to go to the hospital.  He said that at hospital, his father was afraid
to sit down.

[28]        
After Mr. Singh went to hospital on December 27,
2008, a CT scan and a bone scan were both done.  In testimony at trial, Dr. Ng
indicated that a minor area of sclerosis identified by this CT scan could
possibly relate to the motor vehicle trauma, but in my view, his opinion was tenuous
and did not rise to the level of proof that the motor vehicle accident was the
cause of this sclerosis, particularly given the fact that no earlier
post-accident scans had revealed this sclerosis.  The scan also showed moderate
disc bulges in the lumbar area.  I consider it more probable than not that
these bulges, appearing more than two and a half years after the motor vehicle
accident, are the result of normal degenerative changes, and are not related to
the April 1, 2006 accident.

[29]        
After he was seen by Dr. Ng in December 2008,
Mr. Singh did not return to Dr. Ng until March 9, 2009.  On that visit Mr.
Singh reported persistent back pain, at an intensity he characterized as seven
out of 10.  He reported he had been taking two Tylenol 3 tablets, twice a
week.  He complained of difficulty sleeping especially on his left side. 

[30]        
Dr. Ng’s opinion is that Mr. Singh has been left
with chronic back pain, and that the pain will likely persist, but be partially
alleviated by daily medication.

[31]        
Mr. Singh testified at trial that in the first
few days after the accident, he had sharp pains in his lower back radiating
into his right thigh.  He testified that this pain was constant; became worse
in the weeks and months after the accident and did not improve at all for 12
months after the accident.  This evidence does not seem entirely consistent
with the complaints recorded by Dr. Ng.  Dr. Ng’s evidence suggests that Mr.
Singh did experience improvement, with the intensity of his chronic pain
gradually diminishing, but with periodic flare-ups.

[32]        
Mr. Singh testified that following five
physiotherapy treatments the pain in his neck and shoulders went away, but he
continued to have pain in his lower back radiating into his right thigh.  As I
said earlier, Mr. Singh said he stopped going for the physiotherapy recommended
by his doctor because it interfered with his work schedule and he did not find
the five sessions he attended relieved the discomfort in his lower back.  Mr.
Singh confirmed in cross-examination that his shift at work ends at 4:10 p.m. 
I believe I may take judicial notice that some physiotherapy clinics are open
after 4:10 p.m.

[33]        
After discontinuing physiotherapy in May 2006,
Mr. Singh said he started doing Tai Chi exercises at home, for about 20 minutes
daily.  He testified that these exercises help to relieve his back pain
slightly.  He testified he also does exercises his family doctor recommended,
to strengthen his abdominal muscles. 

[34]        
At the beginning of his evidence in chief, Mr.
Singh testified that his back pain is constant.  Later, in chief, he described
the intensity of the lower back pain currently as eight on a scale of one to
10, 10 being the most severe pain.  This is slightly more intense than his
report to Dr. Ng in March 2009.  However, Mr. Singh agreed in cross-examination
that in recent years his back pain is not constant or daily, but comes and
goes.  He also agreed in cross-examination that in October 2008 he had reported
that he was having back pain only three or four times a week, as opposed to
daily or constantly;  and that the pain had an intensity of only 1 on a scale
of 1 to 10.

[35]        
Mr. Singh’s evidence about the medications he
takes was not entirely clear.  He said he has prescriptions for Tylenol 3,
ibuprofen and Flexoril, a muscle relaxant.  Mr. Singh said that he takes these
medications when his pain is most intense.  However, he also said that he
doesn’t take ibuprofen because he is taking daily aspirin; and that Tylenol 3
upsets his stomach.  Mr. Singh’s Pharmacy print-out indicates that he filled a
prescription for an anti-inflammatory medication – Celebrex, rather than
Flexoril – only once in 2008.

[36]        
Despite levels of pain of the intensity
described by Mr. Singh, he did not miss any days of work even in the days and
weeks immediately following the accident and had continued to work steadily to
the date of trial.  He testified that despite the pain in his lower back and
the exacerbation of that pain caused by the heavy lifting he is required to do
at work, he did not want to take any time off work because he was worried that
he might become depressed as he had during the time he was off work following
the hand crush injury in 2002. 

[37]        
In April 2006, Mr. Singh was working as a
machine operator.  As I understand it, the machine operator’s job involves lifting
lengths of pipe of various diameters from the floor onto a heating and cutting
table, and then cutting and bending the pipe to specified lengths and
dimensions.  Late in 2007, Mr. Singh accepted a promotion to senior machine operator. 
A senior operator earns a higher hourly wage.  However, Mr. Singh testified
that a senior operator’s job also involves more physical labour, as senior
operators set up their own machines, while regular machine operators have their
machines set up by a millwright.  Senior operators also work with larger
diameter pipe.  Mr. Singh testified that despite the increased physical demands
of the position, he took the senior operator’s job because he wanted to earn
more money and also wanted to prove wrong people who said he was handicapped. 

[38]        
As a senior machine operator, Mr. Singh
testified, he has to lift and put in position pieces of machinery weighing 80
to 200 pounds; and frequently has to lift pipe weighing between 50 and 150
pounds.  Mr. Singh testified that before the accident he did not require any
help to do this lifting but now gets help from a co-worker, or, he said, uses
his “tummy” to support the weight he is lifting.  He said he asks for help two
or three times a day; and that his employer is very accommodating and
encourages him to ask for help.  He said his employer is happy with his
performance on the job.  Mr. Singh said he was kept on although the company had
laid off other workers in 2002 and again in early 2009. 

[39]        
A co-worker of Mr. Singh’s, Amrit Sandhu,
testified at trial.  He is a 28-year-old machine operator who had worked with
Mr. Singh for four and a half years by time of trial.  He testified that the
work he and Mr. Singh do is very physically demanding.   The job requires the
operator to stand throughout a shift. 

[40]        
Mr. Sandhu testified that it was not until a few
days after the April 1, 2006 motor vehicle accident that Mr. Singh told him
about the accident, and complained of pain in his lower back and neck.  Mr. Sandhu
did not appear to have noticed any problems before Mr. Singh told him about the
accident but testified that he observed that Mr. Singh asked for help with
lifting and appeared to be unable to turn his body from side to side.  He had
not noticed Mr. Singh having any problems lifting before the accident.  He
testified that he continues to assist Mr. Singh to lift heavy items. 

[41]        
Mr. Singh testified that before the motor
vehicle accident, he enjoyed gardening.  There is evidence indicating that Mr.
Singh’s capacity to do heavy yard work had already been impaired by the injury
to his left hand.  I note that Mr. Singh told the psychologist who assessed him
late in 2002 that due to the injury to his left hand, he was unable to do
landscaping and could only do yard work with great difficulty.  Since the motor
vehicle accident in 2006, Mr. Singh has continued to garden, but finds his
ability to work in his garden is now also limited by his lower back pain.  Ms.
Kaur, his wife, testified that Mr. Singh is out in the garden every day, but he
has told her that he has to take breaks.  Mr. Singh persists in gardening
because he enjoys it and finds that working outside helps to ward off
depression.

[42]        
Mr. Singh testified that because of his lower
back pain he has to sleep on his left or right side, and his back pain does
interfere with his sleep.  He testified he cannot sit for more than an hour at
his religious temple. 

[43]        
Mr. Singh testified that he used to do laundry
and ironing, and other household chores, like cleaning the bathrooms, but
avoids these activities now.  I found this testimony to be surprising given the
description of the physically challenging activities Mr. Singh continues to
perform when he is at work, but infer from this testimony that Mr. Singh limits
his physical activity at home so that he is able to perform at work. 

[44]        
Mr. Singh testified that in June 2008, he flew
to Singapore – an 18 hour flight – to visit friends and family.  He experienced
back discomfort during the flight and after arriving in Singapore.  He had
massages while in Singapore but found massage did not provide much relief, and
eventually he started taking a pain medication prescribed for him by his
sister-in-law.  Although his family was planning another trip to Singapore in
July 2009 to attend a wedding, Mr. Singh had decided he would not accompany
them.

DAMAGES

Failure to Mitigate

[45]        
The defendant submits that Mr. Singh would have
recovered more quickly, and would experience less discomfort and impairment if
he had followed Dr. Ng’s recommendation to undergo physiotherapy for a period
longer than he did, and to engage in an active program of physical exercise to
strengthen his core muscles, in particular, his abdominal muscles.

[46]        
I agree with the defendant that Mr. Singh did
not follow his doctor’s recommendations.  I am not persuaded, however, that the
evidence is sufficient to permit me to conclude that Mr. Singh would have
recovered more fully, or more quickly, if he had done as Dr. Ng recommended. 
Mr. Singh testified that although the five physiotherapy treatments he did have
in 2006 resolved the problems in his neck and shoulders, he experienced no
relief in relation to the lower back symptoms.

[47]        
I expect that Dr. Ng was hopeful that the
treatment he was recommending would be of benefit to Mr. Singh, but he has not
testified that it is probable that Mr. Singh would be in better condition
today if he had continued physiotherapy.  Dr. Ng has pointed out, and the
evidence establishes, that the job Mr. Singh does five days a week involves considerable
physical labour, and therefore Mr. Singh does get physical exercise. 

[48]        
I conclude the defendant has failed to prove a
failure to mitigate.

Special Damages

[49]        
Mr. Singh is seeking an award of $2,916 for
special damages.  The most significant item comprising the claim is the cost of
a massage chair that Mr. Singh’s wife purchased for him a few days before
Christmas in 2006.  The chair cost $2,698.

[50]        
The balance of the claim is made up of
physiotherapy user fees and a few medications that were purchased for Mr. Singh. 

[51]        
The quantum of the claim for special damages is
modest.  Certainly Mr. Singh has had significant medication expenses, but was
able to claim almost all of these against his or his wife’s medical care
plans.  Despite the restraint shown in the claim for special damages, I am
unable to conclude that the acquisition of the massage chair was a reasonable
expense that ought to be borne by the defendant.  No medical practitioner ever
recommended the purchase or use of such an item.  Dr. Ng was not even aware
that the chair had been purchased until sometime in the year after it had been
purchased.  Dr. Ng’s recommendations for Mr. Singh were always for active
rehabilitation – physiotherapy and exercise, in particular exercise to
strengthen his trunk and core muscles.  There had never even been a
recommendation for massage therapy.  Dr. Ng was not opposed to the use of the
chair, but his comments about it do not amount to a post facto recommendation
or endorsement of its necessity or utility.

[52]        
Mr. Singh testified that he enjoyed using the
massage chair, but the evidence does not support the conclusion that the chair
had any long or even short-lasting benefit in pain reduction or increased
function. 

[53]        
Counsel for Mr. Shergill provided the court with
two decisions in which a plaintiff advanced a claim for the cost of a massage
chair.  In Naidu v. Mann, 2007 BCSC 1313, the court allowed $195 for the
purchase of a massage chair without making specific reference to it.  In Chetal
v. Honig, [2007] B.C.J. No. 2131, the claim for the cost of a massage chair
was denied, without specific reference to it.

[54]        
 Deducting the cost of the chair, and rounding
off the balance, I award the sum of $220 for special damages.

Cost of Future Care

[55]        
Although Dr. Ng was not asked directly about Mr.
Singh’s need for ongoing use of medications, his opinion is that Mr. Singh is
likely to continue to experience flare-ups of lumbar pain in future, and since
Mr. Singh is currently using prescribed medications to treat these flare-ups, it
is reasonable to assume that he will need medication in future.  Mr. Singh is
seeking an award of $2,500 for medication costs he expects to incur in future.

[56]        
Counsel for Mr. Shergill provided the court with
a print-out from the B.C. College of Pharmacists that is a record of all
prescriptions filled by Mr. Singh up to October 22, 2008.  This print-out
indicates that in the first 10 months of 2008, Mr. Singh filled only one
prescription related to the accident injury.  That was a prescription for
Celebrex filled on April 12, 2008.  In 2007, Mr. Singh had purchased Tylenol
with codeine four times, and Celebrex once.  The quantity of Tylenol purchased
late in 2007 indicates it would have been available to Mr. Singh for
alleviation of pain in 2008.

[57]        
It appears from this that Mr. Singh’s need for
prescription medications declined significantly in 2008 and was limited in
2007.  Nevertheless, I consider it reasonable to make an award for the cost of
medications, as both the evidence of Mr. Singh and Dr. Ng makes it probable
that Mr. Singh will continue to need medication in future to control discomfort
from flare-ups of lower back pain and allow him to work and to sleep.  I award
$2,500 for the cost of future care.

Loss of the Capacity to Earn Income in
Future

[58]        
The evidence does not establish any past loss of
income attributable to the motor vehicle accident injuries and no claim was
advanced for such an award in the plaintiff’s written submissions.  Mr. Singh
returned to work after the accident and has continued to work since.  His
absences from work have been related to the surgeries for repair of his left
hand.

[59]        
Mr. Singh testified, and the documents in
evidence reveal, that his employer has been prepared to accommodate Mr. Singh’s
hand problems and has been able to do so.  On at least two occasions, Mr. Singh
was allowed to return to work on a graduated return to work program.  One may
assume his employer was motivated to provide this accommodation because Mr.
Singh’s hand injury had occurred on the job, but Mr. Singh testified that his
employer is happy with his performance.  One of his co-workers testified that
he provides some help to Mr. Singh with heavy lifting, but this does not seem
to have adversely affected his own performance, or that of Mr. Singh.  Despite
a lay-off of other employees in 2009, Mr. Singh was retained.  Mr. Sandhu
testified that he and Mr. Singh work in a unionized environment.  Mr. Singh had
nine years of seniority at time of trial. 

[60]        
In  2007, after the motor vehicle accident, Mr.
Singh was given a promotion to senior machine operator, and he took the job,
even though it involves more heavy lifting than his previous position.   Mr.
Singh did testify that he has thought about reverting to his previous job as a
regular machine operator, but I consider that an unlikely prospect, given that
he had been performing the duties of a senior machine operator for two years at
time of trial.

[61]        
It is hard to imagine an occupation that
involves more repetitive and heavy lifting than the job described by Mr. Singh
and his co-worker.  Mr. Singh has persevered persevere at this work despite his
hand crush injury, other work-related injuries, and injuries due to this motor
vehicle accident, and to earlier vehicle accidents.

[62]        
The earlier injuries,  as well as potentially
debilitating health problems – high blood pressure, high cholesterol and
diabetes – that pre-date the accident at bar have already impaired Mr. Singh’s
capacity to work – his “capital asset” – and could affect his ability to earn
income in future.  He has been able to overcome these problems so far.  Dr. Ng
testified that given the early degenerative changes in Mr. Singh’s back,
it is likely that he would have developed symptoms of back pain within 10 to 15
years even if the accident had not happened.

[63]        
 Despite all of these problems, and even with
the lower back condition resulting from the April 1, 2006 motor vehicle
accident, Mr. Singh has been able to continue to work and to succeed on the
job.  Mr. Singh said his employer is happy with his performance and his
promotion in 2007 and the employer’s past willingness to accommodate Mr.
Singh’s health problems demonstrate that he is a valued employee.  In my view,
Mr. Singh’s current position is a secure one, so long as his current employer
remains in business. 

[64]        
However, Mr. Singh and Mr. Amrit Sandhu
testified that their employer had been affected by the economic downturn in
2009 and they had some concern that the company might fail or go into
bankruptcy.  Although their concern was not validated by the testimony of any
representative of the employer, I consider the expressions of concern to be
sincere. 

[65]        
On balance, I consider it more probable than not
that Mr. Singh will continue to be employed by his current employer for the rest
of his intended working life.  However, that is not the end of the matter. 
There is a chance that Mr. Singh’s job could come to an end, and that if he had
to look for a new job, his lower back problems, considered cumulatively with
the other pre-existing and unrelated disabilities and health problems he has,
could make finding new employment difficult.  The back problem may make Mr.
Singh less marketable or attractive as an employee to a potential employer.  There
is also a real possibility that as he ages, the lower back symptoms will be
exacerbated by the normal degenerative process already underway in Mr. Singh’s
back and that he might have to reduce his hours, or revert to a less
remunerative, but also less physically demanding position.

[66]        
I conclude, therefore, that Mr. Singh should be
compensated for the impact of his chronic lower back problem on his capacity to
earn income in future, but that given the likelihood that he will continue to
work for his current employer, the award should be a modest one, intended to reflect
a small negative contingency.

[67]        
I award the sum of $25,000 for loss of the
capacity to earn income in future.

Non-Pecuniary Damages

Counsel provided the Court with useful
authorities that I have considered and  listed here: Mattu v. Fust,
2009 BCSC 24; Dawson v. Gee, 2000 BCSC 147; Paller v. Paller,
2004 BCSC 977; Jopling v. Brodowich, 2009 BCSC 653; Jackman v. All
Season Labour Supplies Ltd., 2006 BCSC 2054;  Pallos v. Insurance
Corporation of B.C., [1995] B.C.J. No. 2 (C.A.); Kwei v. Boisclair,
[1991] B.C.J. No. 3344 (C.A.); Collingridge v. Henry, 2006 BCSC 697; Glew
v. Klimm, 2004 BCSC 972; Kenny v. Leveson-Gower, 2005 BCSC 447; Latuszek
v. Bel-Air Taxi (1992) Ltd., 2009 BCSC 798; Leiper v. Kooner, 2006
BCSC 390; Naidu v. Mann, cited earlier; Chetal v. Honig, cited
earlier; Nisbet v. Pare, 2007 BCSC 1173; Shen v. Buchanan, 2006
BCSC 432; Steward v. Berezan, 2007 BCCA 150; and Tung v. Allen,
2008 BCSC 666.

[68]        
 Mr. Singh and his wife testified that Mr.
Singh does not do as many household tasks as he did before the motor vehicle
accident.  The evidence does not establish that Mr. Singh is incapacitated from
these tasks.  Certainly the physical requirements of his job are considerably
more onerous than the effort required in cleaning a bathroom or ironing
clothes.  However, I infer that Mr. Singh avoids these tasks at home in order
to conserve his energy for work, and avoid adding to the physical stress on his
lower back.

[69]        
I accept that the lower back injuries have been
a source of ongoing discomfort and I have no doubt that that discomfort has
lessened Mr. Singh’s enjoyment of life.  He seems to be a proud man and I
accept that he does not like to have to ask for help from his co-workers.  He
testified that he took the promotion to senior machine operator in part because
he wanted to show his co-workers that he could persevere despite his
handicaps.  He has worked despite the discomfort caused by the heavy physical
labour required by his job, but I accept that he has experienced pain or
discomfort at work, episodically in recent years, rather than constantly, with
occasional flare-ups when he has been doing a lot of heavy lifting.

[70]        
Mr. Singh becomes uncomfortable if he sits too
long, at temple, or while driving, or at the movies.  I accept that the
increased discomfort caused during the long flight to Singapore and the flare-up
of back pain he experienced while on holiday there meant the trip was far less
enjoyable than it would otherwise have been.  Mr. Singh is foregoing a second
family trip to Singapore because he does not wish to repeat the experience. 

[71]        
Gardening, one of the activities Mr. Singh does
to maintain his emotional health, is less enjoyable than it used to be,
although to his credit Mr. Singh has persevered at this by taking extra
breaks. 

[72]        
Mr. Singh has had sleep problems in the past as
a result of the injury to his left hand, but I accept that currently his sleep
positions are restricted by his lower back condition, and that he does not
sleep as well, as a result, as he used to.

[73]        
Mr. Singh’s condition has, I conclude, improved
gradually since 2006, despite his testimony that at time of trial he was
experiencing heightened discomfort.  The pharmacy records indicate that in
2008, Mr. Singh was not using a lot of painkillers or muscle relaxant
medication; an indication, I conclude, that his condition had improved over the
previous year.  Even in 2007, the pharmacy record does not indicate the use of
much medication, although I accept that Dr. Ng also provided Mr. Singh
with some samples of medication. 

[74]        
I expect that Mr. Singh will continue to show
improvement, and that his flare-ups will decrease in frequency and intensity,
but Dr. Ng’s opinion is that Mr. Singh will continue to have lower back
discomfort, with occasional flare-ups requiring the use of medication to
relieve the discomfort.  Given the nature of Mr. Singh’s work, I consider that
opinion well-founded. 

[75]        
I must note also, however, that Dr. Ng’s opinion
is that the degenerative changes in Mr. Singh’s lower back that were already
visible on x-rays taken before the April 1, 2006 motor vehicle accident;
remained stable for a time after the accident, and then changed further late in
2008 or early 2009, would likely have caused Mr. Singh pain or discomfort
within 10 to 15 years even if the accident had not happened. 

[76]        
Taking all of these factors into account, I
conclude that an award of $40,000 is warranted to compensate Mr. Singh for the
discomfort he has experienced to date and will experience in future, caused or
contributed to by the April 1, 2006 accident injuries. 

SUMMARY OF DAMAGES

[77]        
I award Mr. Singh the following damages:

Special Damages                                                      $ 
220

Cost of Future Care                                                   $
2,500

Loss of the Capacity to Earn Income in
Future            $25,000

Non-Pecuniary Damages                                           $40,000

COSTS

[78]        
I have not been made aware of any facts that
disentitle Mr. Singh to an award of costs on Scale B.  If there are facts that
have not been brought to my attention, then counsel may make submissions in
writing about costs, or arrange for an oral hearing to address costs. 
Otherwise, the order shall be that Mr. Singh shall have his costs of the action
on Scale B.

“W.G.
Baker J.”