IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101230

Docket: M081396

Registry:
Vancouver

Between:

Bill David Jackson

Plaintiff

And

Marie Mongrain

Defendant

Before:
The Honourable Mr. Justice Stewart

Reasons for Judgment

[1]          
The plaintiff claims damages for negligence arising out of a motor
vehicle accident which occurred on April 8, 2006 on the Lougheed Highway. The
vehicle in which the plaintiff was a passenger was stopped in the left lane for
eastbound traffic waiting for the vehicle ahead of it to complete a manoeuvre. The
defendant drove her vehicle into the rear of the vehicle in which the plaintiff
was seated. That the defendant was negligent is admitted. A pleading of
contributory negligence is not pressed. That the plaintiff was injured is
accepted by the defendant. A failure by the plaintiff to mitigate his loss is
alleged by the defendant.

[2]          
I must assess the damages. Of the various heads of damage under which
the plaintiff pursues his claim, loss of capacity to earn income to the date of
trial and special damages have been settled by counsel at $4,500, all
inclusive.

[3]          
The guiding principle is this:  “…the essential purpose of tort law…
is to restore the plaintiff to the position he or she would have enjoyed but for
the negligence of the defendant.” (Athey v. Leonati, [1996] 3 S.C.R. 458,
paragraph 20).

[4]          
In assessing non-pecuniary damages, damages for loss of or reduction of
the capacity to earn income in the future and damages for the cost of future
care I have kept in mind – and applied to the assessment of damages under
each heading as and when appropriate – that the burden of proof is on the
plaintiff to establish his case on a balance of probabilities, that the “but
for” test has application here on the issue of causation, that on the issue of
a failure by the plaintiff to mitigate his loss the onus is on the defendant, that
I must be very cautious before finding that the plaintiff’s pain and suffering
as the result of soft tissue damage has continued long after the flesh must
have healed (Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.) at
paragraphs 15 and 18), that in considering hypotheticals – including what
might have occurred in the past absent the motor vehicle accident and what may
occur in the future – what matters is not proof on a balance of
probabilities but the fact that all real and substantial possibilities must be
taken into account and given weight according to their relative likelihood (Athey
v. Leonati, [1996] 3 S.C.R. 458 at paragraph 27) and that an award of
damages must be reduced from what it otherwise might be if the trier of fact is
convinced that there was “a measurable risk that a previously existing
condition would have detrimentally affected the plaintiff in future regardless
of the defendant’s negligence.” (Laidlaw v. Couturier, 2010 BCCA 59,
paragraph 46).

[5]          
My task in preparing reasons for judgment at the end of a trial has been
settled by the Supreme Court of Canada in a series of cases that encompasses R.
v. Sheppard, [2002] 1 S.C.R. 869; R. v. Dinardo, 2008 SCC 24; R.
v. R.E.M., 2008 SCC 51; and R. v. H.S.B., 2008 SCC 52. In brief, I
am not to produce a form of transcript of the evidence. That is what the taping
system is for: R. v. Yang, 2004 BCCA 235; R. v. McDonald, 2007
BCCA 224, para. 7. Nor am I to articulate the “machinations of my mind”: R.
v. Jordan, 2004 BCCA 70. Instead, I must give reasons for judgment
responsive to the live issue or issues and, having regard to the particular
circumstances of the case, reasonably intelligible to the parties and
productive of a basis for a meaningful appellate review of the correctness of
my decision by an appellate court armed with the combined effect of what
I say in these reasons for judgment and the record of the trial.

[6]          
In R. v. R.E.M., supra, and R. v. H.S.B., supra,
the Supreme Court of Canada reversed two decisions of our Court of Appeal. In
doing so, the Supreme Court of Canada chose to lay to rest a number of misconceptions
about the irreducible content of the duty of a judge in giving reasons after a
trial. Both cases bear repeated reading, but the most comprehensive statement
by the court appears in R. v. R.E.M., supra, at paras. 15-57.
I am bound by the whole of it and have crafted my reasons for judgment in the
case at bar in light of what the Supreme Court of Canada has said.

[7]          
For present purposes, I choose to note only the following. The Supreme
Court of Canada has stated once and for all that the need for a judge to state what
he decided and why does not mean the judge must articulate how he
made the decision. The “what” is the verdict and the “why” is the basis for the
verdict. The judge is not required to set out every step, finding or conclusion
taken, made or arrived at by him in the process of arriving at the verdict. Stating
the “what” and giving the “why” against the background of the record is
a matter of connecting the evidence and the law on one hand with the verdict on
the other. Crucially, considering the problematic state of the law in this
province prior to October 2, 2008 and the handing down by the Supreme Court of
Canada of its decisions in R. v. R.E.M., supra, and R. v.
H.S.B., supra, decisions by the trial court judge as to the
testimonial reliability of the various witnesses need not be “justified”.
Interestingly, the Supreme Court of Canada had presaged that ruling in R. v.
Lifchus, [1997] 3 S.C.R. 320 at para. 29, amended reasons irrelevant
to this point given in January 1998.

[8]          
Having considered the whole of the evidence together and decided nothing
as to the testimonial reliability of the various witnesses, the bottom facts or
the ultimate outcome of the case until after the whole of the evidence
had been considered together I say the following by way of explication. The
limits of language and the need to speak of various witnesses and bodies of
evidence may give the appearance of piecemeal consideration of the evidence,
but the reality is exactly the opposite. (As to this see R .v. Mann,
2010 BCCA 569, paragraph 37.)

[9]          
The plaintiff’s date of birth is January 21, 1968. He was 38 years of
age on April 8, 2006, the date of the motor vehicle accident in question in the
case at bar. He is now 42 years of age. He finished Grade 10 in high school but
not Grade 11. He has worked steadily since he left high school. He was married
but is now divorced and has a daughter, Beatrice. He is co-owner of a house
with the witness Gordon Papp. He lives there with his mother. He went to work
for what I will refer to as the Pacific Group of companies in 1996. He has
worked in one division or another of the Pacific Group of companies since 1996.
In 2005, he made his way into the Demolition division of the Pacific Group of
companies. The plaintiff works there still. The plaintiff was classified as a
labourer doing, until April 8, 2006, what any man would recognize as
backbreaking labour. In December of 2006 he was promoted to the position of
lead hand (for reasons unrelated to the motor vehicle accident) and then to
junior foreman in September of 2008. At no time after April 8, 2006 has the
plaintiff ever returned – for any period of time – to actually doing
the job, i.e., very heavy labour, that was his job before April 8, 2006 (see
paragraph 31, infra). One aspect of the work of a junior foreman –
that aspect referred to in the case at bar as “reading plans” – proved
difficult for the plaintiff so he was placed back in the position of a lead
hand. The evidence is muddled as to just when it was that he returned to the
position of lead hand. As of the date of trial he remained in the position of
lead hand and was working comfortably and well in that position.

[10]       
I found the plaintiff to be a good witness. The Supreme Court of
Canada speaks of a witness’ “perception, memory, narration [and] sincerity”. (R.
v. Khelawon, 2006 SCC 57 para. 2). I found the plaintiff to be a
sincere witness with normal perception, a good memory as to what occurred but
not so good as to when and good powers of narration save and accept that
sometimes he fails to focus on exactly what it is he is being asked.

[11]       
Against that background about the plaintiff as a witness, I turn to my
understanding of what he told me about his medical history prior to the motor
vehicle accident. Whether the fault was his or mine the fact is that I am not
exactly clear on some of it. What follows is my understanding of the results of
what I found to be a difficult body of evidence. For reasons that will become
apparent later, I begin with the state of the plaintiff’s knees even though neither
knee was injured in the motor vehicle accident on April 8, 2006.

[12]       
While at work in 1991, the plaintiff suffered an injury to his right
knee. Arthroscopic surgery resulted. The plaintiff was off work for two weeks. He
then returned to his duties at work and to all of his usual and ordinary
activities apart from work.

[13]       
Earlier in 1991 the plaintiff had suffered a left knee sprain of no real
significance.

[14]       
Whether it was the same incident or another incident involving the left
knee is not clear to me but there was an incident in roughly 1991 in which the
plaintiff’s left knee was injured as he wrestled with a thief. He took no time
off work.

[15]       
At some point – it may have been in 1991 or 1996 – the
plaintiff’s left knee “flared up” after he jumped down some stairs during a
game of “paintball”. He took one or two days off work and that was the end of
it.

[16]       
In 2001, the plaintiff’s left knee gave way while he was at work. In
February of 2002, reconstructive surgery on the knee was performed. He was off
work for ten months. When he went back to work he returned to full time duties
after progressing through a graduated work program. The plaintiff’s family
doctor, Dr. Mamacos, told me of the plaintiff’s wearing a knee brace in
October of 2002, of his having difficulty with his knee in November 2002, of
his wearing a brace and having a swollen knee in December 2002 and of the
condition of his knee resulting in a reduced workload in July 2004. Between
July 2004 and April 2006 nothing of interest was noted.

[17]       
I find that as of April 8, 2006, the date of the motor vehicle accident
in the case at bar, the plaintiff was working as a labourer doing very heavy
labour, doing all he wished to do while not at work and that in no context did
either or both of his knees restrict his activities.

[18]       
As to the plaintiff’s neck and back before the date of the motor vehicle
accident, I find that it would be a miracle if someone doing the kind of work
the plaintiff was doing did not occasionally suffer back spasms. The fact that
the plaintiff on one occasion suffered from a back spasm, saw his family doctor
once, took an over-the-counter medication for one week and took no time off
work is of no real significance. The plaintiff told me of one such incident
which, as he recalled it, occurred while he was working for the Pacific Group
of companies. His family doctor, Dr. Mamacos, told me of the plaintiff’s clinical
records revealing a complaint by him of a sore back in 1989 i.e. before Dr. Mamacos
had become the plaintiff’s family doctor.

[19]       
In March of 2005, the plaintiff was involved in a minor motor vehicle
accident, suffered soft tissue damage to his back, saw his family doctor, took
no time off work and saw his symptoms – tightening in the back –
disappear within perhaps a week.

[20]       
I find that as of April 8, 2006 there was nothing about the condition of
the plaintiff’s neck or back that is of any interest other than that his neck
and back were in good condition. Insofar as the areas of the plaintiff’s body
that were injured as a result of the defendant’s negligence are concerned,
there was no relevant “pre-existing” condition within the meaning of Athey
v. Leonati, supra, paragraph 35.

[21]       
I turn to the results for the plaintiff of the defendant’s negligence on
April 8, 2006.

[22]       
The defendant does not dispute that the plaintiff suffered soft tissue
damage to his neck and back.

[23]       
The collision was a significant collision. As to this see not just the
plaintiff’s testimony but the photographs at Exhibit 3 Tab 1/Tab 2 which reveal
the damage done to the two vehicles involved in the motor vehicle accident.

[24]       
Because the point seemed obvious to me, at the end of the case I asked
counsel for the defendant whether he conceded that to this day the plaintiff suffers
from chronic pain which would not be his lot but for the negligence of the
defendant on April 8, 2006.

[25]       
The answer was no.

[26]       
Why not?  As to that counsel for the defendant grounded his submission
on the fact that Dr. Reebye, an expert in Physical Medicine and
Rehabilitation, who examined the plaintiff on behalf of the defendant on June
22, 2010, told me that certain areas of tenderness in the plaintiff’s back were
of “no clinical significance”.

[27]       
The doctor told me that “not of clinical significance” meant that in his
opinion what the patient complained of was “not a severe pain or it is
localized pain”. Nobody, including me, asked the doctor to tell us anything
more about what he meant by “of no clinical significance”. The doctor did make
it clear elsewhere in his evidence that he did not doubt that the plaintiff was
making truthful statements to him as he, the doctor, went about his examination.
I must say that absent testimony to the contrary I assumed then and assume now
that all the doctor was saying in using the phrase of “no clinical
significance” was that the fact the area in question was tender resulted in a
finding of just that, tenderness, and no more.

[28]       
To say that that isolated statement by Dr. Reebye stands in the way
of the conclusion noted above as to the overwhelming effect of the whole of the
evidence makes no sense to me.

[29]       
In the result, having recognized the caution that must be taken before
finding that a plaintiff is burdened with pain and suffering as the result of
soft tissue damage long after the flesh must have healed, I find as a fact that
the plaintiff is burdened with chronic pain in the neck and back that would not
be his lot but for the negligence of the defendant on April 8, 2006. That
finding is based on the cumulative effect of my finding the plaintiff to be a
witness upon whom I am prepared to rely, the thrust of the evidence of Dr. Mamacos
(Exhibit 2 Tab 7) and Dr. Hamm (Exhibit 2 Tab 2 Page 13) and the absence
of a pointed, precise statement by Dr. Reebye to the effect that he is of
the opinion that the plaintiff does not suffer from chronic pain and discomfort
which chronic pain and discomfort has its head and source in the injuries
suffered by the plaintiff in the motor vehicle accident of April 8, 2006.

[30]       
I turn to the effect of the defendant’s negligence on the plaintiff’s
capacity to earn income and whether, if a loss or reduction of the capacity to
earn income has been established, the plaintiff has also established a real and
substantial possibility of his actually suffering a pecuniary loss in the
future (Sobolik v. Waters, 2010 BCCA 523 at paragraphs 39-42).

[31]       
As of April 8, 2006 and the advent of the motor vehicle accident the
plaintiff was a labourer doing work which I will describe as very heavy labour.
Since April 2006 he has never returned to the job of a labourer doing very
heavy labour. What occurred was that from April 8, 2006 until the plaintiff’s
being promoted to a lead hand in December 2006, his employer took care to see
that he was assigned light duties because of his problems with his neck and
back. Then he was promoted to lead hand in December 2006 and to junior foreman
in September 2008 and back to lead hand on a date not pinned down in the
evidence. In the position of lead hand and junior foreman the plaintiff was,
and is, able to work to the obvious satisfaction of his employer – here
see the evidence of Arne Johanson – without having to undertake (except on
rare and inevitably painful occasions) the very heavy jobs that were his steady
diet before April 8, 2006.

[32]       
I rely on the evidence of the plaintiff and find it to be a fact that
the plaintiff is now physically capable of doing what is necessary when he is
working as a lead hand or as a junior foreman but is not now capable of working
on a steady basis as an ordinary labourer who must undertake the heavy
labouring jobs that were part and parcel of the plaintiff’s job before the
motor vehicle accident on April 8, 2006 but now fall to him only very rarely.

[33]       
I find that the evidence of Dr. Hamm, a specialist in Occupational
Medicine (Exhibit 2 Tab 2/Tab 3) and of Mr. Hoskings, an expert in
“Functional Capacity Testing” (Exhibit 2 Tab 4/Tab 5) simply confirms the
obvious, i.e., what I have just said. I note here that one of the results of my
finding the plaintiff to be a witness upon whom I am prepared to rely is that
the facially dated (two years out of date) evidence of these witnesses is
effectively updated because I accept the plaintiff’s evidence to the effect
that in the intervening two years nothing of significance has changed. The
evidence of Derek Nordin (Exhibit 2 Tab 1) – a “vocational assessment” –
is not facially dated – Derek Nordin’s having interviewed the plaintiff in
September 2010 – but, once again, the evidence simply confirms the obvious,
i.e., insofar as the plaintiff’s “employment opportunities” are concerned, his
past is prologue.

[34]       
I find that the evidence of the defendant’s witness Dr. Reebye
(Exhibit 4 Tab 2) to the effect that the plaintiff could return to the job of a
labourer doing heavy labour if he went through a period of perhaps three to six
months of “work hardening” is fundamentally flawed in that the one thing I am
convinced of having heard Dr. Reebye’s somewhat confusing testimony is
that he did not take it as a fact (and a fact it was) that at no time
after April 8, 2006 for any period of time has the plaintiff returned to
doing the job that he was doing before April 8, 2006. And I find that Dr. Reebye’s
not having had in hand a correct assumption on that point renders unhelpful the
opinion he offers in paragraphs 6-8 (as we numbered them) on page 2 of his
October 28, 2010 report (Exhibit 4 Tab 2 Page 2 also numbered 22).

[35]       
I find that the plaintiff has established a loss of or reduction in his
capacity to earn income in that should he ever find it necessary to seek
employment as a labourer he would be restricted to only those jobs that did not
involve the very heavy labour that was his lot before April 8, 2006.

[36]       
Has the plaintiff established a real and substantial possibility that he
will actually suffer that loss?

[37]       
I say yes, but barely.

[38]       
The evidence of the plaintiff’s boss Arne Johanson makes it clear that
the plaintiff is a prized employee currently doing a job that is well within
his capacity with every hope that with a little assistance he will move back up
the ladder to the position of junior foreman. As the defendant points out, the
plaintiff has an enviable record of working steadily and well and of seeing his
annual income rise from call it $37,000 (Exhibit 3 Tab 9) in 2005 to call it
$69,000 in 2009 (Exhibit 3 Tab 11). Moreover, his experience as a lead hand
and/or junior foreman would, one might assume, be of interest to any future
employer apart from his current employer.

[39]       
All of that tends towards a finding that the plaintiff has not
established a real and substantial possibility that he will actually suffer
from the loss in question.

[40]       
On the other side there is the fact that I know that the position which
the plaintiff occupies – a position which is uniquely suited to his
capabilities and limitations – exists in an industry (demolition) which is
not just subject – as are all businesses – to shifts in the economic
climate but within a corporation that is a union company competing with
non-union companies for the very kind of work the plaintiff does best –
smaller jobs, small crews – and has at present a very limited body of work
in the offing. I also drew the inference from the whole of what Arne Johanson
told me – and how he spoke of the plaintiff – that yes the plaintiff
is a valued asset insofar as the company is concerned but there is an element
in the plaintiff’s favourable position that flows from Arne Johanson’s view of
him. That is not a large factor in all of this but it is just that, a factor. And
Arne Johanson may disappear from the life of the company at any time. Nobody
knows what the future holds.

[41]       
It is my conclusion that the plaintiff has established a real and
substantial possibility that he will actually suffer a loss because of his
reduced capacity to earn income, but that what he has established rises but
barely from the level of rank speculation to that of a real and substantial
possibility.

[42]       
It follows that the two competing real and substantial possibilities
that must be given weight according to their relative likelihood are that the
plaintiff will never suffer the loss under discussion or that he will and that
it is the former that must be given overwhelming weight, not the latter. That
finding is reflected in the amount ultimately awarded.

[43]       
I have found, in effect, that the plaintiff’s capacity to earn income
has been reduced in that he is less marketable as an employee, less capable
overall from earning income from all types of employment, has lost the ability
to take advantage of all job opportunities that might otherwise have come his
way and is less valuable to himself as a person capable of earning income in a
competitive labour market (Rosvold v. Dunlop, 2001 BCCA 1 at paragraph
10). I have found that there is a real and substantial possibility that the
plaintiff will actually suffer from that loss. I have found that the weight
that must be given to that real and substantial possibility according to its
relative likelihood is minimal. I take into account the whole of the evidence
including the evidence of the economist Darren Benning, Exhibit 2 Tab 9, which
is necessarily of limited assistance throwing up as it does figures ranging
from $236,000 to $470,000 depending upon which future events are taken as certain
to occur. The economist was asked to assume that the plaintiff would have
earned $68,100 per year through to his retirement no later than age 65 and then
to assume that different arbitrarily chosen possibilities as to the course of
future events were, in fact, certainties. And all of this against a background
which includes not just the fact that nothing was or is certain but that in the
case at bar any thought the plaintiff had or has of retiring early has not
progressed any further than just that, i.e., a thought. I have considered the
positive and negative vagaries of life, i.e., the contingencies. And I have
kept in mind as to the whole of it that the case at bar throws up a problem as
far from resolution by any form of calculation as any case imaginable and that
it demands, instead, the assessing of a loss “on a judgment basis” (Rosvold
v. Dunlop, 2001 BCCA 1 at paragraph 10).

[44]       
I award the plaintiff for loss of or reduction of the capacity to earn
income in the future, $75,000. In doing so I did not lose sight of but,
instead, considered the case of Mazzuca v. Alexakis (23 September 1994),
Vancouver B905414 (S.C.) upheld on appeal (24 September 1997) Vancouver CA019456.
That case was brought to my attention by counsel for the plaintiff. The short
point is that both the decision there and the decision here are specific to the
evidence placed before the trier of fact. Moreover, I make the decision in the
case at bar at a time when the Court of Appeal has been at pains to bring home
to the trial judges of this Province that the burden imposed by law on the
plaintiff to demonstrate a real and substantial possibility that he will
actually suffer the pecuniary loss in question is very real (Sobolik v.
Waters, supra).

[45]       
Before leaving the topic of an award of damages for loss of or
diminishing of the capacity to earn income in the future there is a point of
law I must deal with.

[46]       
The plaintiff’s problems with his knees are obviously “divisible” from
his problems with his neck and back. But a worker in the plaintiff’s position
could see his capacity to earn income adversely affected by problems with the
knees. Is this a case in which the award of damages under one or more headings
must be reduced from what it otherwise might be because the trier of fact is
convinced that there was “a measureable risk that a previously existing
condition would have detrimentally affected the plaintiff in future regardless
of the defendant’s negligence” (Laidlaw v. Couturier, 2010 BCCA 59,
paragraph 46).

[47]       
As noted, here I have in mind the plaintiff’s past and present problems
with his knees and the question of his capacity to earn income in the future.

[48]       
I pause to note that I am alive to the fact that before April 8, 2006 a
knee would “flare up” every now and then and that the plaintiff has as recently
as at least March of 2009 had a problem with a knee. In March 2009, he strained
a knee. But that was a transitory problem that did not result in his taking any
time off work.

[49]       
I also note that I am alive to what Dr. Hamm says in his September
10, 2010 report (Exhibit 2 Tab 3 Page 7) about an orthopaedic surgeon, Dr. James
Warren, having asserted that the plaintiff has “longstanding degenerative
disease in the left knee associated with a chronic, anterior cruciate rupture
and longstanding degenerative tearing of his medial meniscus.”

[50]       
Dr. Warren did not testify before me. And no report authored by Dr. Warren
was placed before me pursuant to Rule 11-6-(3). Dr. Hamm’s use of what Dr. Warren
had to say is unobjectionable but what Dr. Hamm has to say about his
understanding of Dr. Warren’s opinion cannot become the functional
equivalent of Dr. Warren’s expert opinion having been properly placed
before me (Mazur v. Lucas, 2010 BCCA 473).

[51]       
As Dr. Hamm notes at page 7 of his report, supra, in the
absence of evidence from Dr. Warren all one can do is look at what the
plaintiff has been able to do. The fact that during the testing of the
plaintiff by Mr. Hoskings the plaintiff asked to stop one of the tests
because of soreness in both knees is simply additional evidence that the
plaintiff occasionally – depending very much upon what he is doing –
will feel discomfort in a knee or in the knees. But considering what he does in
his work life and for how long he has done it and how rarely a problem with a
knee results in discomfort, I am far from being convinced that reducing an
award of damages in the case at bar would be based on a “measurable risk”
rather than on mere speculation.

[52]       
I turn to an award of damages for non-pecuniary loss.

[53]       
The plaintiff has endured pain and suffering thus far for call it 57
months. His pain is chronic and I find in all likelihood will be with him to
the grave. Dr. Mamacos added that once an individual’s back is injured the
chances of what he called “back issues” in the future increase. The plaintiff
swims and walks regularly. He exercises. He has had physiotherapy, taken
over-the-counter drugs and had massage treatments. Because of the nature of the
work the plaintiff did before the motor vehicle accident the fact that the
level of his pain and discomfort – looked at in isolation – is not
great did not mean he did not suffer a loss or diminishment of the capacity to
earn income (see supra). But the fact remains that I would describe his
pain and suffering as not intense but more of the nagging variety, i.e., always
with him but at a very reduced level and causing real and substantial
discomfort only when at work or outside of work he does something which is
actually too much for him or when at the end of a workday the cumulative effect
of his day’s activities and the state of his neck and back sets in. I find that
very bad “flare-ups” occur three or four times a year. He uses over-the-counter
drugs (amongst other non-prescription drugs) to assist him, as necessary. I
accept that his chronic pain and suffering interferes to an extent with his
activities when he is not at work. He limits himself to walking and swimming
whereas before the motor vehicle accident he played basketball, rode a mountain
bike, played racquetball and went camping and hiking. The evidence of the
plaintiff, his mother and of the plaintiff’s friend Gordon Papp satisfies me
that because of his problems with his neck and back, the plaintiff does less
around the house that he and Gordon Papp co-own than would otherwise be the
case. (I note here that I have ignored the evidence of the plaintiff’s friend Chris
Kokkonis. The plaintiff’s own evidence convinces me that Chris Kokkonis is a
witness who thought exaggerating the nature and extent of the plaintiff’s pain
and discomfort would assist the plaintiff. It did not.)  I have considered the
case law placed before me by counsel. Having considered the whole of it I award
the plaintiff $75,000 by way of damages for non-pecuniary loss.

[54]       
I choose to note here that the defendant has not established that the
plaintiff has failed to mitigate his loss. The defendant must establish that
the plaintiff has acted unreasonably and that if the plaintiff had done what he
has unreasonably failed to do his condition would be better than it is: Byron
v. Larson, 2004 ABCA 398. In this connection the defendant refers to the
evidence of Dr. Hamm (Exhibit 2 Tab 2 Page 14 paragraph 13) and to his
recommendation that the plaintiff seek the services of a personal trainer,
attend at a gym or community centre on a regular basis and have the benefit of
pain management counselling “particularly to optimize his adjustment to his
chronic pain pattern”.

[55]       
The fact is Dr. Hamm was not a treating physician but, instead, an
expert brought into the case by plaintiff’s counsel. More importantly, I accept
the plaintiff’s evidence to the effect that his relatively conservative guess
as to the cost of retaining a personal trainer meant retaining a personal
trainer was too expensive for his purse. The defendant’s efforts to demonstrate
the opposite simply fell short of the mark. Counsel for the defendant drew from
the plaintiff bits and pieces about his finances but no coherent picture of the
whole of it was placed before me. Moreover, the defendant placed no evidence
before me as to the cost of what she now says the plaintiff should have pursued.
In addition, it is simply a fact that the plaintiff does exercise sensibly and
regularly, just as he has been told to do, and I find that he has adjusted
quite well to a life with chronic pain. The defendant has just simply not made
out on a balance of probabilities that the plaintiff has failed to mitigate his
loss.

[56]       
The plaintiff seeks an award for the cost of future care. The plaintiff
refers to the evidence of Dr. Mamacos (Exhibit 2 Tab 7 Page 3).

[57]       
I take the evidence of Dr. Mamacos to mean no more than that it may
be useful in the future for the plaintiff to have access to massage treatment,
physiotherapy, acupuncture, a kinesiologist and possibility help with heavy
domestic tasks.

[58]       
The plaintiff also refers to the evidence of Dr. Hamm (Exhibit 2
Tab 2 Page 14) and the reference there to a personal trainer, a gym, a
community centre and pain management counselling.

[59]       
There is also a reference to things said by the defendant’s doctor, Dr. Reebye
which I find add nothing of actual value to the analysis.

[60]       
The short point is that as to all of this counsel for the plaintiff acknowledged
that the plaintiff has not provided the court with any basis for a coherent
inquiry into the cost of any of it and, in addition, beyond recognizing the
need in future to take such over-the-counter drugs as are necessary, the
plaintiff has demonstrated that he has adjusted well to his chronic pain,
exercises sensibly and regularly and has no abiding interest in reaching for
the kind of assistance mentioned by his counsel. (I note here that counsel did
not attempt to make anything out of Exhibit 5 insofar as the question of the
possible cost of future physiotherapy and or massage treatments is concerned.)

[61]       
In the result it is only the future cost of over-the-counter drugs that
could possibly result in an award of damages for the cost of future care. And
as to even that the evidence is lacking as to the cost. However, common human
experience encompasses some experience with the costs of over-the-counter drugs
aimed at relieving pain and discomfort. As to all but over-the-counter drugs
this is not a case in which there is a foundation in the evidence for an award
of a sum of money which may reasonably be expected to be expended by the
plaintiff in an attempt to put himself, as best as possible, in the position he
would have been in absent the defendant’s negligence (Andrews v. Grand &
Toy Alberta Ltd. (1978), 83 D.L.R. (3d) 452 at 462 (S.C.C.)).

[62]       
In the result I award the plaintiff $2,000 as damages for the cost of
future care.

[63]       
As I near the end of these reasons for judgment I state the following
for the sake of completeness:  (1) I begin with the plaintiff’s request
that I make an award in the nature of a management fee, with the sum in
question to be determined later after further submissions by counsel. I have
awarded the plaintiff $77,000 by way of future losses. The plaintiff is an
adult and under no relevant disability. The plaintiff is 42 years of age. He
has lived the life of an adult since he was in his teens. He has been steadily
employed throughout his life. The plaintiff’s education is limited but he left
school not because he is unintelligent but because of his family’s economic
need. He is the co-owner of a house and bears his share of the cost of the
mortgage. I see no foundation here for any consideration of a management fee (Mandzuk
v. Vieira (1988), 36 B.C.L.R. (2d) 371 at 372 (S.C.C.)). (2) The
defendant’s submission that I should draw an inference adverse to the plaintiff
from the fact that no medical report authored by Dr. Totounchian was proffered
is rejected. Dr. Mamacos (Exhibit 2 Tab 6/Tab 7) who was the plaintiff’s
family doctor beginning in 1995, left practice in 2008 having last seen the
plaintiff on October 19, 2007. The plaintiff saw a Dr. Totounchian but
only to obtain the necessary so that he could receive a massage treatment in
2009 (Exhibit 9). By what amounts for the purposes of the law to a
contemporaneous statement of her present belief that doctor made it clear to
the plaintiff that the doctor was in no position to offer any opinion about the
results for the plaintiff of the April 8, 2006 motor vehicle accident. (In this
connection see also Exhibit 4 Tab 5.)  There is simply no proper basis in the
evidence for drawing an inference adverse to the plaintiff.

[64]       
As demanded by the case law I “step away” and look at the overall award ($156,500.00)
for reasonableness in the circumstances. In my opinion it is reasonable.

[65]       
If counsel are not able to agree on any ancillary matters they will have
to get back before me.

 _________”Stewart
J.”__________
The
Honourable Mr. Justice Stewart