IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100603

Docket: M092324

Registry:
Vancouver

Between:

Oleksandr Bortnik

Plaintiff

And

Rodrigo Montoya Gutierrez
Diana Garcia Valle

Defendants

Before:
The Honourable Mr. Justice Myers

Oral Reasons for Judgment

[1]      This is a damage assessment with respect to
soft tissue injuries the plaintiff says he suffered in a motor vehicle accident
on July 13, 2007.  The defendants have admitted liability.

[2]      The case was conducted under Rule 66, although
it went beyond the two-day trial contemplated by that Rule.

Facts

[3]      The plaintiff is now 47 years old.  He was born
in the Ukraine and trained as an electrical engineer designer.  He finished
university in 1984 and worked in the Ukraine as an electrical designer for
companies involved in the aviation and space industries, and later in the oil
and gas industries.

[4]      The plaintiff moved to Vancouver in September
1999 with his wife and two sons who are now 15 and 16 years old.

[5]      When the plaintiff first moved to Canada, he
worked as a television technician for approximately one year.  In 2000, he
moved to Camtex Camera and Instrument Services (89) Inc., working as an
electronic technician repairing and servicing professional video and
electronics equipment.  He worked on contract basis, receiving 55% of his
services billed by the company.  The plaintiff testified that his work was
full-time, averaging eight hours per day.

[6]      In 2005, the plaintiff started work at Photon
Control Inc., while still continuing to work at Camtex.  He worked as an
electronic design engineer on a contract basis at an hourly rate of $50,
rendering invoices to the company.  When he first started to work for Photon he
did not reduce his hours for Camtex and was able to do much of the Photon work
at home in a workshop that he set up in his garage.

PRIOR ACCIDENTS AND PHYSICAL PROBLEMS

[7]      In 2001, the plaintiff was involved in a motor
vehicle accident.  He was rear-ended and suffered whiplash, back pain and
continuous headaches.  In addition his fingers were shaky.  He reduced his work
for Camtex and worked for them only when necessary, primarily on equipment that
was larger than that he had worked on before.

[8]      Within two months of the 2001 accident, the
plaintiff suffered depression for which he was put on medications, including
sleeping pills.  He took the medication for approximately two years and says he
did not suffer depression until the 2007 accident which is the subject of the
case at bar.  The plaintiff testified that he missed work after the 2001
accident, but because his time was flexible he could not say for how many days
or hours.

[9]      In 2004, the plaintiff was involved in another
motor vehicle accident.  He said that once again he suffered problems with his
back and that his “discs had moved”. His neck was also injured and he suffered
headaches.  He said he recovered from his injuries approximately a year after
the accident.  He was working both at Camtex and Photon at the time and only
missed a couple of days work.

[10]    The plaintiff has always used eyeglasses. 
However, after 2001 his vision worsened.  From 2006 to 2008 it has decreased by
up to 30%.

[11]    It should be noted that all of the information
with respect to the plaintiff’s medical condition prior to the 2007 accident –
the one with which this case is concerned – came from the plaintiff himself. 
No medical records prior to the 2007 accident were produced.

THE 2007 ACCIDENT

[12]    The accident which is the subject of the case at
bar occurred on Friday, July 13, 2007.  The plaintiff was driving his
vehicle with his wife in the passenger seat.  His vehicle was hit in the front
right-hand side, damaging the fender and right front wheel.  He said his car
was pushed approximately half a metre.

[13]    The plaintiff testified that he did not feel any
pain immediately after the accident, but his fingers were shaking.  He checked
on the other driver and then left.  Because his car was making noise and was
difficult to steer he drove to a nearby friend who gave the plaintiff a lift
home.  By the evening, the plaintiff had developed a severe headache.  The
following morning he woke up with pain in his back and neck and the headache
had not gone away.

[14]    The plaintiff worked at Camtex on Monday because
he said he had rush work to do, but managed to see his family doctor.  I will
discuss the medical evidence later in these reasons.

[15]    From August to December, 2007 he underwent
massage therapy which improved but did not alleviate his condition.  In August
2007, on the recommendation of his massage therapist, the plaintiff began to
see a chiropractor.  His doctor, Dr. Savchuk, later became aware that the
plaintiff was seeing a chiropractor and the plaintiff continued the treatment
until October, 2008.

[16]    The plaintiff says that he was not able to keep
up his normal workload at Camtex because of the pain but was initially able to
do so at Photon.  The plaintiff said that at each visit his doctor recommended
that he take two months off work in order to fully recover, but he did not have
the money to allow him to do so.  Eventually, he quit working for Photon in
mid-May 2008 and Camtex in September 2008.  He said he quit Camtex because he
could not maintain a position doing bench work which involved leaning forward
and maintaining his head and neck in a constant position.

[17]    The reason for quitting Photon is related to
depression which the plaintiff said he began to notice in October 2007.  He
said he mentioned it to Dr. Savchuk who prescribed anti-depressants.  He quit
work with Photon in 2008 because he understood that if he continued to work he
would not “have a good result for his depression”.

[18]    In October 2008 – within several days of
quitting Camtex – the plaintiff began to work as a field service technician
with LVI, a business which maintains the lottery machinery for the British
Columbia Lottery Corporation.  He was on call from 7:30 AM until the
evening and would be sent to examine problem lottery equipment.  If the
equipment was broken, he sent it in for repair.  He considers it to be an easy
job.  He was paid $3,500 per month irrespective of the number of service calls
he was sent to do.

[19]    The plaintiff said he completely recovered from
his depression in October 2009, at which time he resumed his work with Photon. 
He continued to work for LVI and says that his hours with Photon were not
reduced from what they were before he quit.

[20]    The plaintiff testified that his back pain had
largely tapered off by the end of 2008 and virtually ceased by the end of
2009.  He still has occasional headaches which he finds to be more severe and
last longer than before the accident.

[21]    The plaintiff said that following the accident
his physical activities were largely curtailed.  This included cycling and
camping with his children, swimming and taking long walks with his wife.  The
last time he tried cycling was last summer, but he could not maintain his head
and neck in the appropriate position for more than a limited period of time. 
The plaintiff has recently started walking again with his wife but has not gone
camping again because he fears having a car breakdown and not being able to fix
it due to his back problem.

[22]    Another activity which the plaintiff says he had
to curtail is photography.  Once again, he says he cannot maintain his head in
the necessary position.

[23]    In January 2009, the plaintiff was involved in a
further accident.  He was stopped at a red light when a truck drove by with its
door open scraping the sides of his car and the other cars in the same traffic
line.  He says his car was not moved and he did not sustain any injuries in the
accident.

THE MEDICAL EVIDENCE

[24]    The only expert medical evidence was that of Dr.
Savchuk.  He became the plaintiff’s family physician about a year prior to the
2007 accident.  He filed two reports:  December 6, 2008 and February 16, 2010.

[25]    In his 2008 report, Dr. Savchuk expressed the
opinion that the plaintiff had suffered a soft tissue injury in the accident. 
He thought that the plaintiff had reached a maximum recovery from his
injuries.  In cross-examination he explained that this did not mean full
recovery.  In the written report the doctor’s prognosis was that the plaintiff
would continue to have some pain for the foreseeable future which would be
aggravated by activities such as sustained awkward positions to his neck, heavy
lifting, or prolonged sitting.  With respect to daily activities, the doctor
felt that the plaintiff was capable of doing everything that he did before the
accident.  The doctor opined that the plaintiff could resume all his
pre-accident leisure activities on a gradual basis.

[26]    With respect to work, the doctor concluded as
follows:

… it is my opinion that he is
capable of doing all aspects of his present job description at this time.
However it is also my opinion that if he were to seek employment in the fields
that involve moderate to heavy lifting, prolonged sitting, which requires him
to maintain his neck and upper back in a particular position for sustained
periods of time, he would be incapable of performing these tasks adequately.

[27]    The report noted that the plaintiff complained
about being depressed and that he was prescribed medication for that.  However
Dr. Savchuk did not attribute the depression to the accident.

[28]    Dr. Savchuk began treating the plaintiff in July
2006, approximately one year before the accident.  Although he said he
requested the medical records from the plaintiff’s prior physician, they were
never received.  Dr. Savchuk believes that he was told by the plaintiff of his
prior accidents, but he cannot remember precisely when. Dr Savchuk noted in his
2008 report, under the heading "Effect of pre-accident status":

Mr. Bortnik told me that he was
symptom-free at the time of the motor vehicle accident. It is my opinion, based
on Mr. Bortnik’s statements in my review of his clinical records, that any
injuries he may have sustained before the subject motor vehicle accident are
not a factor in the present situation.

[29]    Dr. Savchuk’s 2010 report largely repeated the
conclusions in his earlier report.

[30]    Although there was no mention in either his
clinical records or his reports, Dr. Savchuk testified that he did tell
the plaintiff to take time off work.  However he cannot recall precisely when.

[31]    Dr. Savchuk’s clinical records (he only came to
the trial with part of his clinical file which did not contain anything prior
to the subject accident) also do not mention that he was told of the
plaintiff’s prior accidents.  Nor did the plaintiff refer to any prior
accidents in the form he filled out at the doctor’s office when he first became
his patient (about a year prior to the accident).  In his examination for
discovery the plaintiff said that he did not know whether he made the doctor
aware of his prior injuries.

[32]    Further, in August 2007 and February 2008 Dr.
Savchuk completed two reports – CL19 forms – for ICBC.  In the section dealing
with prior injuries to the affected areas, he noted “N/A”.  However, in
cross-examination, the doctor said that he recalled being informed of the prior
accident and injuries by the plaintiff.  He explained that he noted “N/A”
because the plaintiff had told him that he had completely recovered so he
“guessed there was no issue” and never spoke about it again after the
plaintiff’s first visit.

[33]    In the February 4 form, Dr. Savchuk noted the
following in the section regarding the patient’s current subjective complaints:

No pain, occasional morning
stiffness.  Very low mood, very poor sleep, poor concentration.

In the section dealing with the physician’s objective
findings, Dr. Savchuk stated:

No pain, recovered from injuries.

[34]    Finally, the doctor could not recall whether he
had been told that the plaintiff had seen ophthalmologists in the past for his
eye problems.

General Damages

[35]    The plaintiff argues that he sustained a
moderate soft tissue injury with depression.  He says his case falls in the
general damage range of between $25,000 to $45,000.

[36]    The defendants say that the bulk of the plaintiff’s
problems are the result of his prior accidents, and his eye problems.  They
point to the inconsistencies between Dr. Savchuk’s reports, his evidence and
his clinical records.

 [37]   The only witnesses were the plaintiff and Dr.
Savchuk.  There are difficulties with both of their evidence.  Even if the
plaintiff had not complained about his prior injuries in the year preceding the
subject accident it is hard to see how Dr. Savchuk could conclude that they did
not contribute to the plaintiff’s complaints.  This is so because, as I
indicated above, Dr Savchuk only began treating the plaintiff one year before
the subject accident but did not receive his prior medical records.  And – once
again accepting that he was aware of the prior injuries – it is clear he had no
detailed knowledge of them.

[38]    I also have difficulty understanding how Dr.
Savchuk could fill out the ICBC forms if he was truly aware of the details of
the plaintiff’s prior injuries.

[39]    With respect to the plaintiff’s depression –
which only manifested itself six months after the accident – other than the
plaintiff’s self diagnosis, there is no evidence which could allow me to
conclude that it was caused by the accident.

[40]    It appears to me that the plaintiff has
exaggerated his injuries.  For example, it is hard to conceive how he could do
the work he did after the accident, yet not be able to lift a camera to his eye
for a moment or two in order to compose a photo.  Further, even making
allowances for the fact that English is not his first language, the plaintiff
gave his evidence in an argumentative fashion and he was unable to answer a
very simple question with a simple answer.

[41]    The medical evidence of Dr. Savchuk is of
questionable import given the contradictions between the reports he sent to
ICBC and his medical-legal reports, and the fact that he did not review the
plaintiff’s prior medical history.  I do not think that the plaintiff has
proved that he will have any residual difficulties as a result of the accident.

[42]    That said, I am prepared to accept that the
plaintiff did suffer some minor whiplash injuries as a result of the accident. 
In my view, the appropriate figure for general damages in this case is $20,000.

Past Wage Loss

[43]    In his opening and during the trial, the
plaintiff’s counsel said the plaintiff’s wage loss claim was based primarily on
part of the time he was off work from Photon, from mid-May 2008 to the end of
2008.  In argument, he took a more global approach, and compared the
plaintiff’s income in 2007 to that of 2008.  The plaintiff was self-employed at
both Photon and Camtex and he therefore reported his gross and net business
income on his tax returns.  In 2007 his net business income was $25,000 and in
2008 it was $33,757.  The plaintiff claims the difference.

[44]    One of the difficulties with the evidence in
this case is that the plaintiff did not disclose or present any documents
showing the hours he worked on a monthly basis for either Camtex or Photon.  He
said he rendered invoices to Photon, so he would have had these in his power or
control.  It is likely the same could be said with respect to Camtex.  Monthly
hours worked would have been helpful to show their correlation to his medical
treatment, visits to Dr. Savchuk and proximity to the accident.  I am asked to
assess damages on the basis of income tax returns alone.  In view of the
plaintiff’s flexibility to work as he wished for Camtex, and his move directly
from Camtex to LVI, that is problematic.

[45]    However, I do not hinge my decision on this
because the greater difficulty for the plaintiff is that he said he quit Photon
because of his depression, yet, as I have found above, that depression was not
shown to be caused by the accident.  On that basis, I do not see that the
plaintiff is entitled to any lost wages for the period when he did not work for
Photon.

[46]    I am also not convinced that the plaintiff
suffered any income loss with Camtex, because, in fact, he was able to carry on
work there until shortly before he took the job with LVI.  Further, in his
discovery the plaintiff said that by the time of the accident, the majority of
his income came from Photon and not Camtex.  Therefore his hours with Camtex
were on a declining basis prior to the accident.  After the accident the
plaintiff began refusing work from Camtex because for some jobs he would make
$10.00 per hour and it was not worth his while.

[47]    Accordingly, I make no award for past income
loss.

Loss of future income

[48]    The plaintiff makes a future loss of income
claim based on the capital asset approach.  He says that he will not be able to
work again doing the type of work he did for Camtex and that even though he is
currently working for LVI, the contingency of him losing out on other job
opportunities because of his injuries merits an award for loss of income
earning capacity.

[49]    In the recent case of Perren v. Lalari,
2010 BCCA 140, the Court of Appeal made it clear that a plaintiff must
demonstrate that there is a substantial possibility of future income loss
before awarding any damages for loss of earning capacity even if the claim is
based on the lost capital asset approach.

[50]    The difficulties with the medical evidence to
which I referred above are also applicable here.  I do not accept that there is
a substantial possibility that the plaintiff will suffer future income loss as
a result of the accident.

Special damages

[51]    The parties have agreed that the plaintiff is
entitled to $247.33 for massage therapy expenses.  This is the shortfall after
reimbursement by his private health care plan.

[52]    The plaintiff also claims for chiropractic
treatment from August 2007 through to April 2010.  In addition to the actual
fees, the plaintiff claims interest which he was charged by the chiropractor on
his unpaid bills.  The plaintiff explained that he could not afford to pay the
chiropractor who agreed to carry the charges with interest pending a ruling in
this case.

[53]    As I noted above, Dr. Savchuk did not recommend
that the plaintiff see a chiropractor; rather it was recommended to him by his
massage therapist.  However, Dr. Savchuk became aware of the plaintiff’s
chiropractic treatment at a later point and did not recommend against it.  Dr.
Savchuk did not speak of the benefits of the chiropractic treatment in his
reports or his evidence.  On this basis, the defendants say that this
disbursement should not be recoverable and, in any event, that interest on the
unpaid sums is not recoverable.

[54]    It appears to me that the plaintiff acted
reasonably in seeking chiropractic treatment.  I would allow the expenses until
December 31, 2009, when he was largely recovered.

[55]    With respect to interest, while counsel have
found some authority dealing with interest on disbursements, counsel advise
they have not found any case dealing with interest on special damages.  I
therefore approach the matter on first principles.

[56]    If the plaintiff had paid the chiropractor, he
would have been limited to interest as provided by the Court Order Interest
Act, R.S.B.C. 1996, c. 79.  Assuming that interest on special costs may in
some instances be recoverable as damages – something which I need not decide –
it follows from my finding that the plaintiff has not proved a past wage loss
that he cannot hold the defendants responsible for his inability or failure to
pay the bills as they became due and owing.  He therefore is not entitled to
claim interest as damages.

"E.M. MYERS, J."