IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120127

Docket: M074779

Registry:
Vancouver

Between:

Ismail Abdalle

Plaintiff

And

The Minister of
Public Safety and Solicitor General of the Province of British Columbia, on
Behalf of Her Majesty the Queen in Right of the Province

of British
Columbia

Defendants

Before:
The Honourable Madam Justice Ross

Reasons for Judgment

Introduction

[1]            
This action is for damages for injuries the plaintiff Ismail Abdalle
received in a motor vehicle accident that occurred on May 8, 2007. His vehicle
was struck while proceeding through the intersection of Westminster Highway and
Garden City Road in Richmond by the vehicle driven by Constable Claudio
Maurizio, a member of the Royal Canadian Mounted Police. Constable Maurizio was
on duty at the time of the collision.

[2]            
Mr. Abdalle struck his head on the windshield of his vehicle and
suffered a significant laceration, concussion, headaches and neck and back pain
as a result of the collision. Liability for the accident has been admitted on
behalf of the defendant. The issues for determination are:

(a)      the severity and duration
of Mr. Abdalle’s injuries;

(b)      the quantum of damages;

(b)      contributory negligence;
and

(c)      mitigation.

Facts

Prior to the Accident

[3]            
Mr. Abdalle was born in Somalia on December 25, 1969. He immigrated
to Canada in 1990. Mr. Abdalle speaks English, Arabic and Somali. He
completed two years of post-secondary education in Somalia prior to immigrating
to Canada.

[4]            
Mr. Abdalle has been employed by Hertz Canada Limited as a vehicle
service attendant since 1995. His duties include cleaning and detailing the
cars after they are returned by the customers and driving the vehicles to a
rental outlet. In addition, he has engaged in farm work, sales and acted as a
personal trainer for a time.

[5]            
Prior to the accident, Mr. Abdalle was exceptionally fit and
active. He was a skilled and avid soccer player. He would play about three
times a week. He played in different leagues and also sometimes in pick-up
games at community centres. He did long distance runs about five times a week
as well as the Grouse Grind several times a week. He enjoyed hiking and basketball.
He had suffered some previous minor injuries, but they had resolved without any
lingering sequelea.

[6]            
Mr. Abdalle was married at the time of the accident, but his wife
had not yet joined him in Canada. He was sharing accommodation in an apartment
owned by his landlady Teresa McLennan. He enjoyed cooking and looked after
household chores such as cleaning and laundry.

The Accident

[7]            
The accident occurred on May 8, 2007 in the early morning hours. Mr. Abdalle
was driving his vehicle, a Mazda 323, eastbound on Westminster Highway on his
way to religious services. He was passing through the intersection of Garden
City Road on a green light when his vehicle was struck by the vehicle driven by
Constable Maurizio. The vehicle driven by Constable Maurizio did not have its
siren or flashing lights activated at the time. Mr. Abdalle was travelling
at about 50 kilometers per hour when his vehicle was hit.

[8]            
Mr. Abdalle was thrown forward in the collision, hitting his head
on the front windshield and possibly on the rear view mirror as well. He
sustained a significant cut on his forehead.

[9]            
It was Mr. Abdalle’s testimony that he was wearing his seat belt. He
stated that he always wears a seat belt. He stated that he reported at the
hospital that he was wearing his seat belt; however, this is inconsistent with
what is recorded in the hospital record.

After the Accident

[10]        
An ambulance was called to the scene and Mr. Abdalle was treated at
the scene by ambulance attendants. Kristina Jones was one of the paramedics who
treated Mr. Abdalle at the scene. It was her evidence that she asked Mr. Abdalle
more than once at the scene whether he had been wearing his seat belt at the
time of the accident and that he had replied that he was not. She recorded that
he was unrestrained in the Crew Report prepared at the scene.

[11]        
Mr. Abdalle was taken by ambulance to the hospital where he
received treatment for the large wound on his forehead and smaller cuts on his
cheek. Small pieces of glass were removed from these wounds. In addition, he
had suffered some damage to his knees and right finger.

[12]        
In the immediate aftermath of the accident, Mr. Abdalle suffered
significant pain in his neck and back, severe headaches, dizziness and nausea. Dr. Yong,
his family physician, concluded that Mr. Abdalle had suffered a concussion
and soft tissue injuries. Dr. Yong observed that Mr. Abdalle had
restricted range of motion, tenderness in the neck and back, and muscle spasms.
Dr. Yong recommended that Mr. Abdalle take time off work due to his
injuries.

[13]        
Dr. Yong prescribed medications for pain, inflammation and to
improve Mr. Abdalle’s sleep. He also prescribed physiotherapy, which Mr. Abdalle
attended in the summer following the accident.

[14]        
Mr. Abdalle was off work until September 2007 and bedridden for
much of that time. He stated that during this period he felt dizzy if he tried
to walk or move. He was unable to care for himself or attend work. He relied
upon his roommate to pick up groceries and medications for him. He was not able
to cook for himself and relied upon friends to assist him.

[15]        
Dr. Yong later recommended that Mr. Abdalle attend a further
course of physiotherapy and that he do stretching and attend massage therapy. Mr. Abdalle
testified that he did do the stretching that he had been taught at
physiotherapy. He did not follow the recommendation to undertake a further
course of physiotherapy.

[16]        
Mr. Abdalle was married in 2007, before the accident. It was a
marriage by proxy and he did not meet his wife until 2008. She moved to Canada
in 2010. Before the accident he had been sending her $500 per month in support.
One of the consequences of the collision was that he was not able to continue
to send her the support for a period of time.

[17]        
Mr. Abdalle did not provide much detail at trial about the
progression of his recovery. He stated that after six months he continued to
experience considerable pain. He was worried that he would not recover. He continued
to have dizziness and headaches. Mr. Abdalle stated that during this
period he could not walk for more than 500 meters without stopping.

[18]        
Mr. Abdalle gave evidence at his examination for discovery that was
conducted on October 14, 2009. At that time he gave the following evidence:

Q.        And how often do you get headaches now?

A.         Right now I don’t get as often I used to get,
but sometimes maybe twice a month I get headache, comes and goes.

…

Q.        And you get these times of neck pain how many
times per month?

A.         Sometimes I don’t get two months.

Q.        And that sometimes not for two months, is that
now or in the months after the accident?

A.         No, but the months after the accident I was
— it was more often.

Q.        How often?

A.         I would say it was actually weekly basis.

…

Q.        And you said now you feel pain in your neck
once every couple of months?

A.         Yes, sometimes — I cannot say when, but
sometimes I get some pain in my neck.

…

Q.        And how long did the dizzy spells last?

A.         Dizziness I — I think it last up to year and
plus. I was — was getting often, you know. So there was so many times I had to
lean on something to just hold on something to — some weeks they were better
than the other weeks.

Q.        And how many times a week would you say you
got dizziness in that year?

A.         I would say the
dizziness, it wasn’t something like daily basis, but once a week, something
comes and goes.

[19]        
In cross-examination Mr. Abdalle agreed that as at October 2009 his
headaches were intermittent and resolved with Advil.

[20]        
In 2010, Dr. Yong referred Mr. Abdalle to Dr. Pankaj
Dhawan, a specialist in physical medicine and rehabilitation; however, Mr. Abdalle
did not attend the appointment. His explanation was that he had forgotten the appointment
since there was a lengthy interval between the referral and the appointment. In
addition, he stated that he had misplaced the calendar on which he recorded his
appointments.

[21]        
Mr. Abdalle was referred again to Dr. Dhawan in 2011, and
attended an appointment on April 28, 2011. Dr. Dhawan’s notes described
the history given by Mr. Abdalle at the time as follows:

He improved with time and with
therapy but his symptoms of headache remained and it bothered him off and on.
He was somewhat vague about the onset of the symptoms, the frequency of
symptoms, the severity of the symptoms and the impact on his life. I asked him
in various ways and it looked like he had variable headaches which usually
seemed to start from the head and stayed in the head region. The frequency was
unknown. He also described some neck stiffness and low back pain and again the
aggravating or relieving factors, frequency, and duration was unknown. He
denied any presence of loss of sensation, loss of strength in the arms or legs,
or any bowel or bladder disturbance. His sleep was interrupted. He did not feel
rested and his mood was somewhat irritable but not depress.

[22]        
Dr. Dhawan recommended that Mr. Abdalle “claim some of his
fitness back” by resuming the activities he had enjoyed prior to the accident.
He advised Mr. Abdalle to continue walking as well. He prescribed Nortriptyline
to improve sleep, modulate pain and reduce Mr. Abdalle’s headaches. He
recommended that Mr. Abdalle consider cervical and lumbar facet block
injections in small doses.

[23]        
Dr. Dhawan saw Mr. Abdalle again on August 17, 2011. At that
time Mr. Abdalle declined to have the injections done. The explanation he
provided to Dr. Dhawan was that “he did not feel comfortable with that”. Dr. Dhawan
reported that Mr. Abdalle said that he was learning to live with the pain.
He reported that he still had low back pain and some upper neck pain and
headaches. He reported that he was also feeling somewhat sleepless and that he felt
his mood had declined compared to prior to the accident. Mr. Abdalle told Dr. Dhawan
that he did not take the Nortriptyline that he had prescribed. He did not state
a reason. Mr. Abdalle reported that he was trying to walk. He told Dr. Dhawan
that he was working at the Hertz car rental agency. His job was to clean the
cars and do detailing. He stated that he was currently not on any fitness
program and overall he had remained unchanged.

[24]        
Mr. Abdalle testified that at present he is limited in everything
he does by the headaches and pain resulting from the accident. He said that he
is not the same person. He said that he gets headaches three to four times a
week and most nights. He stated that he does not sleep a full night because of
the headaches and some nights cannot sleep at all. It was his testimony that sometimes
the headaches last a whole day. He said that when he gets the headaches he is
in great pain and cannot think clearly.

[25]        
He stated that he still suffers from dizziness when he moves a lot. The
dizziness lasts 10 to 15 minutes and then it passes. In addition, he still
suffers from nausea, anxiety and fear of driving. He stated that he suffers
from neck pain a lot of the time, that he was stiff and could not move freely.
He is troubled by the scar on his forehead, believing that people recoil from
it.

[26]        
When asked in cross-examination about his evidence on discovery with
respect to the frequency of his headaches, he stated that sometimes the
headaches were better, sometimes bad. He added that he never kept track of how
frequently he suffered from his headaches. His answer was to the same effect
with respect to the timing of his neck and back pain and dizziness – some times
were better than others, and he did not keep a calendar recording how often he
suffered.

[27]        
Mr. Abdalle stated that he continues to suffer from anxiety,
worrying about the headaches, dizziness and pain, and whether he will ever
recover.

[28]        
It was his testimony that he is unable to assist his wife with household
chores such as laundry and cooking. He is not able to pick up his nine month
old baby. He stated that it is a challenge to perform the functions of his job
because of his back pain.

[29]        
He stated that he continues to do the stretching that he learned at
physiotherapy; however, he is sometimes forced to stop part way through because
of the pain. He stated that he walks on the track for 15 minutes to improve his
conditioning. It was his testimony that he has tried to return to play soccer
as recently as a month ago, but was not able to. He stated that playing for as
little as five minutes brings on a headache that forces him to stop playing. He
is not able to hike as this also brings on headaches and dizziness. He has
gained weight.

[30]        
Mr. Abdalle testified that he declined to take the injections
recommended by Dr. Dhawan because his religious beliefs forbid him to take
any strong medications that dull the senses, like alcohol.

[31]        
It was Mr. Abdalle’s evidence that since the collision, he is not
able to change his work situation. He can only just manage to do his work and
is not able to do anything after work. He is not able to take on the challenge
of doing other things.

[32]        
Mr. Abdalle’s wife, Ayan Hashi, testified that Mr. Abdalle is not
able to help out at home because his head is always hurting. She said that he
was not able to go for hikes or to take walks with her. He cannot pick up the
baby. Noises bother him.

[33]        
Abdirhman Osman is a close friend of Mr. Abdalle. They work
together at Hertz and used to play soccer together before the accident. It was
his testimony that Mr. Abdalle does his job at work perhaps a bit more
slowly. He has not returned to soccer since the accident. He stated that he did
see Mr. Abdalle play a couple of times, but he could not finish. It was
his testimony that Mr. Abdalle played probably about half the game and
then left. He stated that since the accident Mr. Abdalle is quieter and
less outgoing than before the accident.

[34]        
Theresa McLennan used to be Mr. Abdalle’s landlord. He rented a
bedroom in her apartment between 2000 and 2008. She described Mr. Abdalle’s
high level of energy and activity prior to the accident. It was her evidence
that in the aftermath of the accident Mr. Abdalle was off work. He was
fatigued, spending much of his time in bed. He suffered from headaches. She
bought his groceries for him and refilled his prescriptions. She stated that
after the accident he had a very bad scar for a time. She stated that prior to
the accident Mr. Abdalle was more reliable and helpful. After the accident
he seemed drained of energy.

Expert Evidence

[35]        
There were two expert reports filed. Dr. Peter Yong is a family
physician who has been Mr. Abdalle’s physician since 2003. He provided the
following opinion:

In summary, Mr. Abdalle was involved in an accident on
May 08, 2007, in which he suffered head injuries and extensive lacerations of
the head which were stitched and stapled. Because of his head injuries and
concussion, he continued to suffer posttraumatic headaches and is still
symptomatic now. He is being assessed by Dr. Dhawan regarding his injuries
as well as his posttraumatic headaches. A CT scan done on September 29, 2008
showed no evidence of any neurological problems. A MRI scan of the head may be
more useful in finding any structural changes in the brain as a result of his
head injuries. He continues to suffer from neck and back pain since the
accident. When he was assessed on April 13, 2011, he was still symptomatic.
There was still tenderness and stiffness of the neck, shoulderblade, and back.
However, there was no evidence of any fractured bones or clinical evidence of
any impingement of the cervical or lumbar nerve roots. Mr. Abdalle will
suffer permanent scar on his head due to the laceration on his head. As far as
the posttraumatic headaches are concerned, his prognosis is guarded at this
point.

He will continue to be assessed
in the office and if necessary, an MRI scan will be ordered. He will continue
to see Dr. Dhawan for his posttraumatic headaches and his soft tissue
injuries of moderate severity involving his neck and back. As far as neck,
shoulderblade, and back pain is concerned, there was no evidence of any
fractures or dislocations. There was no evidence of any neurological problems. It
is unlikely for him to suffer permanent disability or sequelae as a result of
the injuries to his neck, back, and interscapular area. However, his condition
will be followed up and if there is worsening of his condition, he will be
assessed by a specialist such as an orthopedic surgeon or specialist in
physical medicine.

[36]        
Dr. Pankaj Dhawan is a specialist in physical medicine and
rehabilitation. Dr. Dhawan provided the following opinion:

It appears that this man suffered soft tissue injuries to the
cervical and lumbar spine and concussion in the motor vehicle accident
described. He has settled into chronic pain. He has not benefited from the
passage of time or physiotherapy. He has declined further treatments of local
anesthetic and steroid injections to the cervical and lumbar facets as well as
the use of medications to improve sleep and mood. There seemed to be emotional
sequelae to his personal injury as well with some decline in sleep and mood.

It would be helpful to improve
his sleep and mood through antidepressant medications and to get a personal
trainer and fitness pass for him to improve his overall fitness to get back to
his previously active, fit lifestyle. Concussions like this usually heal in
about two years’ time and soft tissue injuries go on to heal as well. In the
absence of any bony discogenic or neurological injury, eventually full recovery
is expected and I do not suspect any long term sequelae, development of
arthritis or need for surgery. Given the chronicity of his symptoms and their
impact on his sleep and mood, I suspect some subjective pain may remain on a
longer term basis which would not be disabling for vocational or recreational
activities.

Credibility and Reliability of Evidence

[37]        
The factors to be considered when assessing credibility were summarized
by Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186 as
follows:

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

[38]        
In the present case, it is clear that Mr. Abdalle struck his head
against the windshield in the collision. As a result, he suffered a significant
laceration which left him with a prominent scar on his forehead that was
disfiguring and disturbing to him. It also appears from the testimony of Ms. McLennan
that the scar has faded and is now less prominent.

[39]        
Mr. Abdalle also suffered a concussion and soft tissue injury to
his neck and back as a result of the collision. He suffered from headaches,
dizziness, nausea, pain and stiffness. These injuries were disabling in
the immediate aftermath of the accident. From the time of the accident until
September, he was unable to work or to take part in the sporting activities
that he loved. He needed assistance with tasks such as getting groceries. He
was not able to perform housekeeping activities or to cook for himself.

[40]        
What is not clear is the progress of his recovery from September 2007 to
the date of trial and his present condition. As noted earlier, Mr. Abdalle
gave little evidence at trial with respect to the progress of his recovery.
Moreover, his testimony at trial concerning his present condition is in stark
contrast with his evidence given on discovery, in particular, with respect to
the frequency that he experiences headaches, dizziness and pain. His testimony
in chief was that he experiences headaches virtually daily, pain at least
several times a week and dizziness if he attempts any physical activity. However,
as of October 2009, it was his evidence that the dizziness lasted a year after
the accident, that he experienced headaches about twice a month and neck pain
every couple of months.

[41]        
Mr. Abdalle’s account of what activity he can manage is not
consistent with that given by Mr. Osman. Mr. Abdalle stated that he
was forced to stop playing soccer after only five minutes; however Mr. Osman
observed Mr. Abdalle play soccer until half time. Moreover, it was Dr. Dhawan’s
opinion that Mr. Abdalle is not disabled from any activity, either
vocational or recreational.

[42]        
I have concluded that Mr. Abdalle’s testimony concerning the
progress of his injuries given in his discovery was accurate and reliable. I
accept that Mr. Abdalle continues to suffer on occasion from neck and back
pain and headaches, but find that his account of the present frequency and
degree of debilitation associated with these conditions is not reliable. I find,
consistent with his discovery evidence, that the dizziness Mr. Abdalle
experienced was essentially resolved a year after the accident.

Contributory Negligence

[43]        
Pursuant to s. 4 of the Negligence Act, R.S.B.C. 1996,
c. 333, when a plaintiff contributes negligently to causing his or her own
injury, the court must determine relative degrees of fault. The correct inquiry
is whether the plaintiff failed to take reasonable care for his or her own
safety and whether that failure was one of the causes of the accident, see Bradley
v. Bath, 2010 BCCA 10, at para. 27.

[44]        
The court’s task is to assess the respective blameworthiness of the parties,
rather than the extent to which the loss may be said to have been caused by the
conduct of each. Fault or blameworthiness evaluates the party’s conduct in the
circumstances and the extent or degree to which it may be said to depart from the
standard of reasonable care, see Alberta Wheat Pool v. Northwest Pile
Driving Ltd., 2000 BCCA 505, at paras. 45-46.

[45]        
The defendant submits that it is well recognized that all occupants of
the motor vehicle have a duty to wear their seat belts. Failure to do so will
often result in an assessment of contributory negligence against that person,
see Galaske v. O’Donnell, [1994] 1 S.C.R. 670 at p. 680. Further,
s. 220 of the Motor Vehicle Act, R.S.B.C. 1996 c. 318,
requires that a person in a motor vehicle being driven on a highway in British
Columbia wear a seat belt.

[46]        
In order to make the case of contributory negligence based on the
plaintiff’s failure to wear a seat belt, the defendant bears the burden of
establishing, on a balance of probabilities, that the plaintiff’s injuries
would have been reduced or eliminated had he been wearing a properly
functioning seat belt, see Claiter v. Rose et al, 2004 BCSC 50 at para. 178.

[47]        
In the present case, the defendant submits that there is strong evidence
available to support the conclusion that Mr. Abdalle was not wearing his
seat belt at the time of the accident:

a.       The
evidence of Kristina Jones, the ambulance attendant who attended the scene of
the collision, is that she recalls the accident in question, and specifically
recalls Mr. Abdalle telling her he was not wearing his seat belt. The
defendant submits that significant weight ought to be given to Ms. Jones’
evidence on this point given that she is an independent witness who gave her
testimony in a frank and forthright manner.

b.       In
addition, the Ambulance crew report contains the notation “unrestrained” in the
history section, under the heading “mechanism of injury/history of illness”. In
her testimony, Ms. Jones emphasized the importance of accurately recording
such information.

c.       Mr. Abdalle
has admitted that he can’t recall whether he was wearing his seat belt at the
time of the accident.

d.       Mr. Abdalle
testified that he always wears his seat belt but admitted, in cross-examination
that he was twice cited for driving while unbelted.

e.       Mr. Abdalle’s
own evidence is that his head hit the front windshield. As a matter of common
sense, the defendant submits that this is not physically possible if he was
wearing his seat belt.

[48]        
Mr. Abdalle submitted that the Court should conclude that Ms. Jones
is mistaken in her recollection that Mr. Abdalle told her that he was unrestrained.
Counsel noted that Ms. Jones has helped thousands of individuals since
treating Mr. Abdalle. Moreover, she was unable to recall the specifics
about his appearance at the time.

[49]        
I found Ms. Jones to be both a credible and reliable witness. Her
evidence is consistent with the notation in the crew report. I accept her
evidence that Mr. Abdalle told her that he was unrestrained. In addition,
I find that the fact that Mr. Abdalle‘s head struck the windshield is more
consistent with him being unrestrained.

[50]        
I am satisfied, having considered all the evidence, that Mr. Abdalle
was not wearing his seat belt at the time of the accident.

[51]        
The next question is whether Mr. Abdalle’s injuries would have been
reduced had he been wearing a seat belt. The defendant submits that both the
medical evidence and common sense support the conclusion that given the nature
of the injuries sustained by Mr. Abdalle in the accident, it is likely these
injuries would have been reduced had he been wearing his seat belt. Counsel
notes that, by his own admission his head struck the windshield as a result of
the collision.

[52]        
The defendant submits that common sense establishes that his injuries
would not have been as severe if the seat belt had been used citing Chief
Justice McEachern in Lakhani (Guardian ad litem of) v. Samson, [1982] B.C.J.
No. 397 (S.C.) at para. 3:

I reject the suggestion that
engineering evidence is required in these cases. The court is not required to
leave its common sense in the hall outside the courtroom, and the evidence is
clear that upon impact in both cases the Plaintiff’s upper body was flung or
thrown forward striking the dashboard or the steering wheel. And common sense
tells me that the restraint of a shoulder harness would have prevented that,
and therefore some of the injury from having occurred.

[53]        
In addition, the defendant submits that the expert evidence in the
present case also supports the conclusion that the plaintiff’s injuries would
have been less severe had he been belted. Dr. Dhawan agreed with the
proposition that the head injuries sustained would be greater where an
individual’s head hits the windshield. He indicated that a head hitting a
windshield results in a blunt force being applied to the head.

[54]        
Dr. Dhawan stated that in the absence of blunt force, such as a
head hitting the windshield, there would be less compressive force to the
cervical spine. Dr. Dhawan stated that headaches can be caused by a direct
trauma or by a soft tissue injury to the cervical spine. He stated that in the
absence of blunt force trauma, headaches of either type would be less serious.

[55]        
In addition, the defendant relies upon the evidence of Ms. Jones that
it is important to determine whether a patient was wearing a seat belt at the
time of any motor vehicle accident because, in her experience, seat belt use
reduces the severity of injuries.

[56]        
The defendant submits that the evidence provided by Dr. Dhawan and Ms. Jones
establishes, on a balance of probabilities, that the plaintiff’s injuries would
have been reduced or eliminated had he not hit his head on the windshield. Further,
that as this court held in Lakhani, even in the absence of this evidence,
this court is nevertheless entitled to conclude as a matter of common sense,
based on the plaintiff’s injuries, that the restraint of a shoulder harness
would have prevented the plaintiff’s head from moving forward several feet and
striking the windshield, thereby preventing some of the plaintiff’s injuries
such as the head laceration and concussion.

[57]        
Counsel submitted on behalf of Mr. Abdalle that it was Dr. Dhawan’s
opinion that Mr. Abdalle’s ongoing headaches were likely cervicogenic in
nature and not originating from the head injury and that his evidence
concerning neck and back injuries was, “not as clear-cut". Further,
counsel submits that no evidence was adduced concerning neck injuries and
physical forces in automobile crashes, nor has the defendant adduced evidence
to establish that Mr. Abdalle would not have hit the windshield had he
been wearing a seat belt. Accordingly, counsel submits that the defendant has
not met its burden of proof to establish that his failure to wear a seat belt
worsened his injuries from the collision.

[58]        
I conclude that it is more likely than not that Mr. Abdalle would
not have hit his head on the windshield had he been wearing his seat belt. It
was Dr. Yong’s opinion that Mr. Abdalle suffered from a concussion. Dr. Dhawan’s
opinion was that both headaches and injuries to the cervical spine would be
less serious in the absence of blunt force trauma. Considering the evidence as
a whole, I am satisfied that the defendant has met the burden of proof in this
regard.

[59]        
The defendants cited the following decisions with respect to the
appropriate amount of reduction:

a. Konken
v. Krulic, [1993] B.C.J. No. 104 (S.C.) (15% apportionment to
plaintiff);

b. Lakhani, supra,
(25% apportionment to plaintiff); and

c. Greenall
v. Watson, [1995] B.C.J. No. 2326 (S.C.) (30% apportionment to
plaintiff).

[60]        
I conclude that the appropriate reduction to reflect Mr. Abdalle’s
degree of blameworthiness in the present case is 20%.

Damages

Failure to Mitigate

[61]        
The plaintiff in a personal injury action has a positive duty to
mitigate. A plaintiff has an obligation to take all reasonable measures to
reduce his or her damages, including undergoing treatment to alleviate or cure
injuries, see Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC
1111 at para. 234.

[62]        
Once the plaintiff has proved the defendant’s liability for his or her
injuries, the defendant must prove that the plaintiff acted unreasonably and
that reasonable conduct would have reduced or eliminated the loss. Whether
the plaintiff acted reasonably is a factual question and it involves a
consideration of all of the circumstances, see Gilbert v. Bottle, 2011
BCSC 1389, at para. 202.

[63]        
The defendant bears the onus of proving that the plaintiff could thereby
have avoided some part of the loss, see Janiak v. Ippolito, [1985] 1 S.C.R.
146 [Janiak]. In the context of an allegation that the plaintiff failed
to mitigate his losses because he failed to seek or follow specific medical
care, the question of whether the plaintiff was reasonable in refusing
treatment is a finding to be made taking into account the degree of risk from
the treatment, the gravity of the consequences for refusing it and the
potential benefit to be derived from the treatment, see Janiak at pp. 162-163.

[64]        
In the present case, the defendant submits that Mr. Abdalle failed
to mitigate its damages by:

(a)      failing
to swim more than a few times despite the recommendation of his physiotherapist
made prior to October 2007;

(b)      failing
to attend physiotherapy or massage therapy recommended to him by Dr. Yong after
October 2007;

(c)      failing
to take Nortriptyline as prescribed by Dr. Dhawan;

(d)      failing
to take the facet block injections recommended by Dr. Dhawan; and

(e)      failing to follow the
exercise regime recommended by Dr. Dhawan.

[65]        
Counsel notes that with respect to the failure to attend physiotherapy
and massage, Dr. Yong agreed that he recommended these treatments to Mr. Abdalle
and that he did so because in his opinion, such treatments are effective in the
treatment of the kind of injuries sustained by Mr. Abdalle and carry no
risks. It was Dr. Yong’s opinion that it was very possible the
physiotherapy and massage therapy would have resulted in a reduction in the
severity or length of symptoms. He agreed that failure to undergo the treatment
would result in the patient not experiencing any associated reduction with
respect to the length and severity of the symptoms.

[66]        
Mr. Abdalle agreed that his physiotherapist had recommended that he
do swimming in treatment of his injuries. He agreed further that he went
swimming while attending physiotherapy, but only a few times after it ended. It
was Dr. Dhawan’s evidence that swimming was a good exercise for Mr. Abdalle
to be doing, that swimming and other exercises would help him strengthen and speed
his recovery. He stated that such exercises have little risk and he was not
aware of any contraindications in Mr. Abdalle’s case.

[67]        
Dr. Dhawan stated that he prescribed Nortriptyline in a low-dose,
for treatment of Mr. Abdalle’s mood, sleep, pain and headaches. Dr. Dhawan
stated that in his opinion, it was more likely than not that the medication
would have assisted Mr. Abdalle. He stated that this is one of the most
commonly prescribed headache prevention drugs. It is not a pain relieving drug;
rather, the goal of the drug is to reduce the incidence and intensity of
headaches. He stated that the drug functions to block the re-uptake of
naturally occurring neurochemicals, thereby increasing their levels in the
brain resulting in the benefits indicated. He stated that this is not a mood
altering drug and that it is prescribed in such low doses that there is no mood
blunting effect. He stated that the drug is generally well tolerated and that
there was little risk to Mr. Abdalle. He stated that the consequence of Mr. Abdalle’s
failure to take the drug was that the opportunity to improve his sleep, mood,
pain and headaches was lost.

[68]        
With respect to the facet block injections, Dr. Dhawan stated that
they were to serve both a diagnostic and therapeutic purpose. Dr. Dhawan stated
that he discussed the benefits of the treatment with Mr. Abdalle. It was
his opinion that it was more likely than not that Mr. Abdalle would have
benefited from these treatments. It was his opinion that in Mr. Abdalle’s
case, the benefits far outweighed the risks associated with the treatment,
which he stated could include dizziness for a few minutes, an increase in pain
for two to four days and the risk of bleeding and pain from the injection
itself.

[69]        
Dr. Dhawan advised Mr. Abdalle in April 2011 to increase his
fitness with an active program and to continue walking. He noted that in his
follow-up visit in August, Mr. Abdalle told him he was not in any fitness
program other than walking. Mr. Abdalle admitted that he had not
undertaken a physical fitness program in response to the recommendation.

[70]        
Mr. Abdalle’s position was that he did not fail to mitigate his
damages. Counsel submits that Mr. Abdalle would have attended further
sessions of physiotherapy, but that he struggled with financial and
transportation issues that he submitted were largely caused by the actions of
the defendant. While he declined medication recommended to him by Dr. Dhawan,
that treatment might not have been successful.

[71]        
In addition, counsel submits that Mr. Abdalle has spiritual and
religious objections to drug use. Counsel submits that adherence to a sincerely
held religious belief should not be considered a failure to mitigate damages. In
counsel’s submission this should be an application of the principle of tort law
that the tortfeasor takes the victim as he finds him.

[72]        
The medical evidence establishes that the recommended treatments would
likely have assisted Mr. Abdalle, that there were no contraindications in
his case and that the risks were minimal. Accordingly, unless Mr. Abdalle’s
spiritual objections provide a reason to refuse treatment, I conclude that Mr. Abdalle’s
refusal to follow the recommendations of his physicians was unreasonable.

[73]        
While counsel for Mr. Abdalle submitted that the issue of the
plaintiff’s beliefs are an aspect of the application of the thin skull
principle, the Supreme Court of Canada in Janiak concluded that not
every pre-existing subjective characteristic will be taken into account in
determining the question of reasonableness and mitigation, only those that can
be said to affect the plaintiff’s capacity to mitigate. Madam Justice Wilson,
speaking for the Court stated at para. 159:

The other element that has to be
considered in determining whether the objective test of reasonableness applies
to the decision made by the alleged thin skulled plaintiff is the nature of the
pre-existing psychological infirmity. It is evident that not every pre-existing
state of mind can be said to amount to a psychological thin skull. It seems to
me that the line must be drawn between those plaintiffs who are capable of
making a rational decision regarding their own care and those who, due to some
pre-existing psychological condition, are not capable of making such a
decision. As pointed out by Professor Fleming, a plaintiff cannot by making an
unreasonable decision in regard to his own medical treatment "unload upon
the defendant the consequences of his own stupidity or irrational
scruples": Fleming, The Law of Torts (6th ed. 1983), p. 226.
Accordingly, non-pathological but distinctive subjective attributes of the
plaintiff’s personality and mental composition are ignored in favour of an
objective assessment of the reasonableness of his choice. So long as he is
capable of choice the assumption of tort damages theory must be that he himself
assumes the cost of any unreasonable decision. On the other hand, if due to
some pre-existing psychological condition he is incapable of making a choice at
all, then he should be treated as falling within the thin skull category and
should not be made to bear the cost once it is established that he has been
wrongfully injured.

[74]        
In the recent decision Cassells v. Ladolcetta, 2012 BCCA 27, Mr. Justice
Lowry, speaking for the court, emphasized the objective nature of the relevant
test at para. 26:

I agree that if, by virtue of the
injury sustained in an accident, a plaintiff is unable to make a reasonable
decision about treatment, the plaintiff is in no different position with
respect to mitigating the loss suffered than would be the case if, for other
reasons unrelated to the accident, the plaintiff’s capacity to make reasonable
decisions about treatment was lacking. But I cannot accept that means the law
prescribes a subjective test, modified or otherwise. Janiak is
clear; the test is objective. I consider that if a plaintiff had the capacity
to make the decision about treatment it is said ought to have been made, and
the advice was sound, the mitigation question in each instance must be what
would be expected of a reasonable person in the circumstances having regard for
the plaintiff’s medical condition at the material time and the advice given
concerning treatment. If, through no fault of his own, the plaintiff did not
have the capacity to make the decision, or the advice was not sound, the
question would not arise.

[75]        
It appears that the particular question of whether pre-existing
religious beliefs would constitute a reasonable basis for a refusal of medical
treatment has not been addressed in this jurisdiction. Jamie Cassels and
Elizabeth Adjin-Tettey wrote in Remedies: The Law of Damages, at pp. 292
and 393 that “there is little authority on this issue”, and cite two American
decisions as guidance. Neither of these cases have been cited in Canadian
jurisprudence. Moreover, from Janiak it is clear that the American
position on this issue takes subjective attributes into consideration to a
greater degree than in Canada (Janiak, p. 160). Cassels and Adjin-Tettey
opine at p. 392 that:

According to the Janiak test,
where a medical treatment is otherwise obviously required, religious or ethical
objections would not provide an excuse from mitigating unless those objections
rendered the plaintiff incapable of choice or could be assimilated to
‘pathological’ conditions.

[76]        
Ken Cooper-Stephenson also explored this topic in Personal Injury Damages
in Canada and expressed a different view. He stated at p. 876 that:

[l]f a pre-existing religious
belief or cultural practice inhibits or prevents the plaintiff’s capacity to
choose a certain form of treatment…then it is almost certain that the
plaintiff will not be adjudged unreasonable in the refusal… Defendants take
their plaintiffs as they find them with respect to their religion, their
culture, and their socio-economic setting.

He does not, however, provide any Canadian authority in
support of this proposition.

[77]        
Professor Cooper-Stephenson also argues that there is a move towards
subjectivism, with one approach including religious belief and cultural
practice within the notion of “capacity” from Janiak. He says, at
p. 879, that as for religious belief and cultural practice:

…their recognition as
fundamental constitutionally-protected interests in the Canadian Charter of
Rights and Freedoms almost certainly requires that they be respected in
post-action choices for the purposes of the duty to mitigate.

[78]        
There are two questions to be addressed in relation to this issue. The
first is whether, to what extent, and under what circumstances a religious or
cultural belief will be taken into consideration in addressing the plaintiff’s
duty to mitigate. As noted above, it appears that the answer to this question may
not be settled in Canadian jurisprudence. The second question is whether in the
particular case, the plaintiff’s failure to follow a recommended course of
treatment is the result of adherence of a religious or cultural belief or
practice.

[79]        
In my view, this is not the case to make a determination with respect to
the first question because I have concluded that the factual foundation is
simply not made out for the Court to conclude that the reason for the refusal
of treatment was a sincerely held religious or spiritual objection on the part
of Mr. Abdalle. I have reached this conclusion for the following reasons:

(a)      Mr. Abdalle
did not follow the recommendations with respect to swimming, physiotherapy,
massage therapy and improving his level of activity. These had nothing to do
with spiritual or religious objections to treatment;

(b)      counsel’s
submission went beyond Mr. Abdalle’s evidence. Mr. Abdalle testified that
he has spiritual objections to alcohol and certain drugs. He said that alcohol
is forbidden as well as drugs that stimulate the mind. He stated that he has
spiritual objections to drugs that dull his senses or put him “like half asleep”.
It was his evidence that he did not agree to the facet block injections because
he understood that the medication numbs the area around the injection and he did
not want to numb the back of his head. He did not testify that he declined to
take Nortriptyline because of spiritual or religious objections;

(d)      there
is no evidence that he discussed any spiritual or religious objections to the
medication or injections with Dr. Dhawan, and indeed the doctor’s report
suggests that he did not;

(e)      Dr. Dhawan’s
description of the effects of Nortriptyline does not seem to fall within the
scope of drugs to which Mr. Abdalle claims to have a religious objection.
In my view, a reasonable plaintiff with religious objections to medications
having certain effects on the body would discuss his concerns with his
physician and ascertain if the medication actually fell within the scope of the
prohibition; and

(f)       Mr. Abdalle
took, without apparent concern, medications for pain relief and improvement of
sleep prescribed by Dr. Yong. This strongly suggests to me that there was
no religious objection to taking Nortriptyline.

[80]        
In addition, I note that there was no evidence about whether these
religious and spiritual objections were part of the formal tenets of Mr. Abdalle’s
faith, or personal to him. There was no evidence of the source of what counsel
characterized as a prohibition, for example, in religious texts. There is no
evidence that Mr. Abdalle discussed these matters with his spiritual
advisors. There was no evidence of how widespread this particular conviction
was among members of his faith.

[81]        
In the result, I am satisfied that Mr. Abdalle’s refusal to take
the Nortriptyline prescribed by Dr. Dhawan and his failure to follow the
recommendation to take facet block injections was not the product of a
religious or spiritual objection. In addition, I find Mr. Abdalle’s
failure to continue with swimming, to become more active, to attend a further
course of physiotherapy, to take the Nortriptyline as prescribed and the facet
block injections as recommended was unreasonable in all the circumstances and
in breach of his duty to mitigate.

[82]        
Mr. Abdalle submitted that the reduction for failure to mitigate
should be minimal because the treatment recommended by Dr. Dhawan was only
recently recommended to Mr. Abdalle. The defendant submits that the
failure to mitigate with respect to the swimming recommended by the plaintiff’s
physiotherapist in the months leading up to October 2007, and with respect to Dr. Yong’s
recommendations in October 2007, goes back to 2007.

[83]        
With respect to Dr. Dhawan’s recommendations, the defendant notes
that the plaintiff missed his previously scheduled visit with Dr. Dhawan
in May 2010 through the plaintiff’s own forgetfulness. Accordingly, the defendant
submits that the consequences with respect to the plaintiff’s failure to follow
the treatment options recommended by Dr. Dhawan ought to be assessed to
May 2010. I agree with the defendant’s submission in this regard.

[84]        
The defendant relied upon a number of cases in which the court reduced the
damage award to take into account the plaintiff’s failure to follow an exercise
or other treatment regime recommended by the plaintiff’s medical team, citing Harris
v. Zabaras, 2010 BCSC 97 at paras. 87-88 (10% reduction); Tayler v.
Loney, 2009 BCSC 742 at paras. 77, 78 and 83 (15% reduction); Salzmann
(Litigation Guardian of) v. Bohmer, 2009 BCSC 1586 at paras. 19 and 24
(20% reduction); Qiao v. Buckley, 2008 BCSC 1782 at paras. 60 and
68 (30% reduction); and Latuszek v. Bel-Air Taxi (1992) Ltd.,
2009 BCSC 798 at para. 85-86 (40% reduction).

[85]        
I find that the recommendations for treatment and rehabilitation in the
present case would likely have reduced the effect of Mr. Abdalle’s
injuries. I find further that a reasonable plaintiff in his circumstances would
have followed the recommendations and that Mr. Abdalle’s failure to follow
the program is unreasonable. In all of the circumstances, I think that it is
reasonable to conclude that Mr. Abdalle’s symptoms would have been
improved by at least 25% if he had followed the advice, and accordingly, I will
reduce his award of non-pecuniary damages by that amount.

Non-Pecuniary Damages

[86]        
Non-pecuniary damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life and loss of amenities. The compensation
awarded should be fair to all parties, and fairness is measured against awards
made in comparable cases. Such cases, though helpful, serve
only as a rough guide. Each case depends on its own unique facts: Trites
v. Penner, 2010 BCSC 882 at paras. 188-189.

[87]        
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined
the factors to be considered when assessing non-pecuniary damages at para. 46:

The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary
damages includes:

(a)     age of the plaintiff;

(b)     nature of the injury;

(c)     severity and duration of
pain;

(d)     disability;

(e)     emotional suffering; and

(f)      loss or impairment of
life;

I would add the following factors, although they may arguably
be subsumed in the above list:

(g)     impairment of family, marital
and social relationships;

(h)     impairment of physical and
mental abilities;

(i)      loss of lifestyle; and

(j)      the plaintiff’s stoicism (as a
factor that should not, generally speaking, penalize the plaintiff: Giang
v. Clayton, 2005 BCCA 54).

[88]        
The assessment of non-pecuniary damages is necessarily influenced by the
individual plaintiff’s personal experiences in dealing with his injuries and
their consequences and the plaintiff’s ability to articulate that experience: Dilello
v. Montgomery, 2005 BCCA 56 at para. 25.

[89]        
The correct approach to assessing injuries which depend on subjective
reports of pain was discussed in Price v. Kostryba (1982), 70 B.C.L.R.
397 (S.C.) by McEachern C.J. In referring to an earlier decision, he stated at
p. 399:

In Butler v. Blaylock, [1981] B.C.J. No. 31, decided 7th
October 1981, Vancouver No. B781505, I referred to counsel’s argument that
a defendant is often at the mercy of a plaintiff in actions for damages for
personal injuries because complaints of pain cannot easily be disproved. I then
said:

I am not stating any new principle
when I say that the court should be exceedingly careful when there is little or
no objective evidence of continuing injury and when complaints of pain persist
for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer. But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence – which could be just his own evidence if the surrounding
circumstances are consistent – that his complaints of pain are true reflections
of a continuing injury.

[90]        
Counsel for Mr. Abdalle seeks an award of $100,000 for non-pecuniary
damages. Counsel submitted that the appropriate range of damages for
non-pecuniary loss is $90,000 to $100,000, citing the following cases:

(a) Foran
v. Nguyen et al, 2006 BCSC 605. In this case, three years after the
collision, the plaintiff continued to suffer chronic headaches, neck and back
pain. She was left at significantly higher risk for re-injury to her neck
ligaments and soft tissue. She suffered from chronic fatigue and loss of
self-esteem and could no longer participate in many of the activities she had
enjoyed prior to the collision. Moreover, the quality of her participation in
many activities had been reduced. She was awarded $90,000 non-pecuniary
damages.

(b) Thiessen
v. Bissenden, 2007 BCSC 1809. In this case, the plaintiff was left with
ongoing symptoms of headaches, blurred vision, shoulder pain, neck and back
pain. Mr. Justice Williamson concluded that she suffered from fibromyalgia
caused by the motor vehicle accident and that her condition had plateaued
sometime in 2006. She was awarded $95,000 non-pecuniary damages.

(c) Gosselin
v. Neal, 2010 BCSC 456. In this case, the plaintiff suffered injuries to
her neck, right shoulder and back, had frequent headaches, had difficulties with
her right arm and difficulty sleeping. The plaintiff was found to have been
highly motivated to return to a physically active lifestyle. Mr. Justice
Silverman concluded that she will never be able to return to her pre-accident
self. Moreover, as a result of her injuries, she lost the ability to follow a
career path and job that she loved, which greatly affected the quality of her
life. She was awarded $100,000 for non-pecuniary damages.

[91]        
Counsel for the defendant submitted that the appropriate award for
non-pecuniary damages, before consideration of contributory negligence and
mitigation, is $40,000. Counsel relied upon the following cases to establish a
range of $15,000 to $50,000:

(a) Dhillon
v. Ashton, 2009 BCSC 1109. In this case, the court made a non-pecuniary
damage award in the amount of $15,000. The plaintiff was a 37 year old father
of two young children who had previously enjoyed leisure activities such as
walking, playing games and going to the gym. He testified that his ability to
play with his two young children was limited by his injuries. The plaintiff was
found to have suffered mild to moderate soft tissue injuries to the neck, right
shoulder and low back. The plaintiff also suffered from headaches. The
plaintiff’s symptoms had been most significant in the first three months
following the injury, with some ongoing problems for the next five months and
intermittent pain thereafter.

(b) Grewal-Cheema
v. Tassone, 2010 BCSC 1182. In this case non-pecuniary damages were fixed
in the amount of $25,000. The plaintiff was five months pregnant at the time of
the accident, which Mr. Justice Stewart found resulted in her opportunity
to enjoy being pregnant with her first child being “ruined” by the effect of
the accident. The plaintiff’s symptoms included soft tissue damage which resulted
in pain in her cheek bones, jaw, wrists, neck, upper back, mid-back, low back,
groin and abdomen as well as excruciating and debilitating headaches. Stewart
J. described the plaintiff as basically an invalid, who would simply lie in
bed. Her injuries were substantially recovered in 18 months.

(c) Bradley
v. Groves, 2009 BCSC 1882. In this case an award of $30,000 was made. The
plaintiff had sustained moderate soft tissue injuries to the neck and upper
back and experienced headaches. Her symptoms had persisted for three years by
the time of trial, though there was a prognosis for recovery in the future. The
injuries had prevented the 29 year old plaintiff from engaging in her social
and recreational pursuits to the extent and with the frequency she would have
liked and also affected her intimate relationship.

(d) Wilby
v. Hyatt, 2008 BCSC 1019 involved an award of non-pecuniary damages in the
amount of $48,500. The plaintiff was 32 years old, and was described by Mr. Justice
Josephson as, in many respects the ideal plaintiff; fit, athletic, intelligent,
successful, with positive life goals and who was powerfully motivated to
recover as much of her former active and healthy lifestyle as possible. She
complained of symptoms from the accident including headaches, a stiff neck,
stiff shoulders, insomnia, anxiety and pain in areas including her upper back,
thoracic area, lower back, buttocks and hips. She also suffered numbness and
parasthesia in her arms and legs. The ongoing pain resulted in a temporary depression
affecting her mood and causing difficulties with sleep patterns. Based on the
medical evidence, the prognosis for recovery was “uncertain”, and Josephson J.
concluded there appeared to be little prospect for a complete recovery.

(e) Chalmers
v. Russell, 2010 BCSC 1662. In this case a 40 year old plaintiff was
awarded $50,000 in non-pecuniary damages for symptoms including immense pain in
her neck as well as headaches. The plaintiff described continuous throbbing
pain in her neck and shoulders as well as frequent headaches. She did not sleep
well, and had a sore right ankle. The previously very active plaintiff was
found by Madam Justice Griffin to be suffering from ongoing pain which affected
her enjoyment of her children and work and would continue to do so for at least
some time, but noted that the medical evidence did not suggest the plaintiff
would not recover.

[92]        
In this case I have concluded as noted above that Mr. Abdalle
suffered a serious laceration, concussion and soft tissue injury to his neck
and back in the accident. He was left with a significant scar on his forehead.
He suffered from nausea, dizziness, headache pain and stiffness in his neck and
back as a result of his injuries. He was significantly disabled and largely
bedridden from the time of the accident until September 2007, when he was able
to return to work. He was not able to attend to functions of daily living such
as cooking and household chores at this time and was unable to engage in the many
activities that he had enjoyed before the accident. His sleep and mood were
affected.

[93]        
With the passage of time his symptoms improved. As he conceded in his
examination for discovery, the dizziness was essentially resolved after a year.
By October 2009 he was experiencing headaches perhaps twice a month and flare
ups of neck pain every couple of months. I accept that he continues to
experience periodic flare ups of neck and back pain and headache.

[94]        
He was able to return to work in September 2007 and has been able to
function at the workplace since that time. While he has not returned to his pre-accident
level of activity, I find that the injuries he suffered in the accident do not
and will not prevent him from taking part in any vocational or recreational activities.
Upon a review of the cases cited by counsel and having regard to my findings
concerning Mr. Abdalle’s injuries and their impact on his activities and
the quality of his life, I assess non-pecuniary damages prior to reduction for
mitigation and contributory fault at $50,000.

Loss of Housekeeping Capacity

[95]        
Mr. Abdalle seeks an award of $10,000 for loss of housekeeping
capacity. Counsel submits that Mr. Abdalle has lost the ability to perform
many duties around the house. He has relied on friends and family to provide him
with assistance. However, this is not a situation that should continue in
perpetuity.

[96]        
The position of the defendant is that no award should be made for future
loss of homemaking capacity because, according to Dr. Dhawan, Mr. Abdalle
is not expected to be disabled in the future. Dr. Dhawan’s prognosis is
for a full recovery and his opinion is that any ongoing subjective pain will
not be disabling for either Mr. Abdalle’s vocational or recreational
activities.

[97]        
I agree with the position of the defendant with respect to this issue. I
accept Dr. Dhawan’s medical opinion that Mr. Abdalle will not be
disabled from engaging in any activities in the future. While I accept that Mr. Abdalle
continues to experience headaches and pain in his neck and back, this impact on
the quality of life has been addressed as a component of his non-pecuniary loss. Accordingly,
I make no award for loss of housekeeping capacity.

Past Wage Loss

[98]        
Compensation for past wage loss is to be based on what the plaintiff
would have, not could have, earned, but for the injury that was sustained, see Rowe
v. Bobell Express Ltd., 2005 BCCA 141; M.B. v. British Columbia,
2003 SCC 53. Pursuant to s. 98 of the Insurance (Vehicle) Act,
R.S.B.C. 1996, c. 231, a plaintiff is entitled to recover damages for only
his or her past net income loss. This means that in the ordinary course
the court must deduct the amount of income tax payable from lost gross
earnings, see Hudniuk v. Warkentin, 2003 BCSC 62.

[99]        
Mr. Abdalle submits that taking into account holidays and bank days,
his total number of missed days until the time of return to work was 74. In
addition, Mr. Abdalle submits that he missed an additional two days on a
graduated return to work. However, there is no evidence adduced with respect to
these additional two days.

[100]     Mr. Abdalle
also claims past wage loss for foregoing income during the period that he was
on strike this year for approximately 20 weeks. It was submitted that but for
his injuries, he could have been able to pursue alternative employment during
that period. Counsel submits that, assuming he would have found a part-time job
for approximately $15 an hour, he would have earned an additional $4,800 during
this period, in addition to the strike pay he earned during that period.

[101]     The
defendant’s position is that Mr. Abdalle has not given sufficient evidence
to make out a claim for past wage loss because of failure to adduce evidence
with respect to his rate of pay at the time of the accident and failure to
tender his income tax returns or to lead evidence with respect to the number of
hours worked before the accident and the number of hours lost during the period
he alleges he was off work.

[102]     With respect
to the claim for wage loss during the time when the plaintiff’s union was on
strike, the defendant’s submission is that the evidence is insufficient to
establish a causal connection between the strike and the motor vehicle accident
at issue. Any wage loss by Mr. Abdalle from his employment at Hertz during
the strike was due to the job action not injuries sustained in the motor
vehicle accident. Mr. Abdalle’s evidence was that he did not look for any
work during the strike, including work at locations similar to the work he
agrees to have done for Hertz.

[103]     I find
that Mr. Abdalle suffered wage loss with respect to 74 days of employment
as a result of the motor vehicle accident. I agree with the submission of the
defendants that the appropriate discount rate to apply to the gross wage loss
award is 22.5%.

[104]     The
documents necessary to quantify the past wage loss are not in evidence. It may
be that given my findings, counsel will be able to agree upon the award for
this head. Failing that there will be a direction pursuant to Rule 18-1 for a
hearing before the registrar to determine the quantum.

[105]     With
respect to the claim for wage loss during the strike, it was Mr. Abdalle’s
evidence that he was not able to seek out alternate employment during the
strike because of his injuries and fatigue resulting from the accident.
However, since he returned to work in 2007, Mr. Abdalle has been able to
perform the duties required of his job at Hertz. He was required to be on the
picket line for only part of his normal work day. Accordingly, I am not
satisfied that his injuries precluded him from seeking alternative work during
the strike, and accordingly, decline to make an award with respect to income
loss during the strike.

Loss of Future Earning Capacity

[106]     Mr. Abdalle
seeks an award of $1,920,000 for loss of capacity to earn income in the future.
He submits that he continues to suffer from ongoing symptoms arising from the
motor vehicle accident. These flare up when he engages in intense physical
activity. Mr. Abdalle notes that he has turned down the job offered by a
friend to do roadwork because of his physical condition.

[107]     He
submitted that while he is able to perform the duties of his present job, he is
unable to do more physically demanding labour, and as a result, is unable to
pursue greater opportunities. There have been layoffs at his current employment
and he may need to seek alternate employment in the future. He will be limited
in the forms of employment he can pursue in the job market.

[108]     The award
sought is based on the estimated difference between his current wages and what
counsel estimated that Mr. Abdalle would earn if he would have been able
to fulfill his dreams of owning his own business. This difference was
estimated by counsel to be $60,000 a year. It was submitted that the losses
would last for the rest of Mr. Abdalle’s working life, estimated to be 32
years.

[109]     The
defendant’s position is that Mr. Abdalle has not established that there is
a real and substantial possibility of a future event leading to an income loss,
and accordingly, he has not established an entitlement to an award for loss of
future income earning capacity. Counsel notes that there is no medical opinion
supporting the proposition that Mr. Abdalle will continue to suffer the
effects of his injuries in any way that is disabling in the future. Dr. Dhawan’s
opinion was that full recovery was to be expected and that while subjective
pain may remain on a longer-term basis, it would not be disabling for
vocational activities. Further, while Dr. Yong gave the opinion that Mr. Abdalle’s
prognosis was guarded with respect to post traumatic headaches, he did not
offer the opinion that the post-traumatic headaches would be disabling for
vocational activities. Further, it was his opinion that Mr. Abdalle was
unlikely to suffer permanent disability or sequela as a result of the injuries
to his neck, back and interscapular area.

[110]     In
addition, counsel notes that Mr. Abdalle has worked at Hertz as a vehicle
service attendant since shortly after he started work there in 1995 and
continues to work in the position. While Mr. Abdalle provided some
evidence with respect to his hope someday to start a trucking or restaurant
business, in counsel’s submission the evidence provided falls well short of
establishing either substantial possibility of Mr. Abdalle choosing such
work in the future, or that he is incapable of doing such work as a result of
his injuries, should he so choose.

[111]    
In Perren v. Lalari, 2010 BCCA 140, Madam Justice Garson,
speaking for the court, at para. 32, set out the requirements for such an
award as follows:

A plaintiff must always
prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, that there is a real and substantial
possibility of a future event leading to an income loss. If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown. The former approach will be more useful when the loss is
more easily measurable, as it was in Steenblok. The latter approach will
be more useful when the loss is not as easily measurable, as in Pallos
and Romanchych. A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment. That was the case in both Pallos and Parypa.
But, as Donald J.A. said in Steward, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss.

[112]     In the
present case I have concluded that Mr. Abdalle has not established that
there is a real and substantial possibility of a future event leading to an
income loss. Mr. Abdalle is able to perform all of the requirements
of his present position. The medical evidence does not support Mr. Abdalle’s
assertion that he is or will be disabled from pursuit of any vocational
activities.

[113]     In
addition, I note that an assessment of damages for loss of future capacity to
earn income must be based on the evidence. In the present case, there is
absolutely no evidence to support counsel’s proposition that but for the
accident, Mr. Abdalle would be earning an additional $60,000 per year. In
addition, it is well settled that if the award is to be based upon lost future
wages, is to be treated as a present value, with appropriate deduction for
contingencies, neither of which were present in the submissions of plaintiff’s
counsel, see for example Pallos v. Insurance Corp. of British Columbia
(1995), 100 B.C.L.R. (2d) 260 (C.A.); Gilbert v. Bottle, at para. 233.

[114]     In the
result, I make no award for loss of future income earning capacity.

Costs of Future Care

[115]     Mr. Abdalle
seeks an award of $5,000 for the cost of future care. His counsel submits that
this care would consist of a combination of gym passes, physiotherapy, personal
training sessions, massage therapy and over-the-counter painkillers. Counsel
notes that the plaintiff’s doctors have recommended a variety of these treatments.

[116]     The defendant
acknowledges that the plaintiff’s physicians have recommended such treatments
in the past. However, counsel notes that Mr. Abdalle has refused to take
the medication prescribed by Dr. Dhawan for the treatment of his sleep,
mood, pain and headaches. Other than walking he had done previously, Mr. Abdalle
did not engage in any additional physical activity in response to Dr. Dhawan’s
recommendation that he become more active. He did not continue with the
swimming recommended by his physiotherapist. Further, as a former personal
trainer, Mr. Abdalle is in a good position to implement such an exercise
program, even without the assistance of a personal trainer. Further, Dr. Yong
recommended that Mr. Abdalle take another round of physiotherapy and massage
therapy; however, Mr. Abdalle declined to follow that recommendation.

[117]     Accordingly,
the defendant submits that since Mr. Abdalle has consistently failed to
follow the treatments recommended to him, it would be unreasonable to grant him
an award for future care costs based upon speculation that he might change his
mind in the future. The defendant submits that the best evidence of the
likelihood of Mr. Abdalle following these recommendations in the future is
whether he has done so in the past, and that accordingly, no award for future
care costs should be made in the circumstances.

[118]    
Future care costs must be justified both because they are medically
necessary and they are likely to be incurred by the plaintiff. In Izony
v. Weidlich, 2006 BCSC 1315, Mr. Justice Masuhara stated at para. 74:

I agree that future care costs
must be justified as reasonable both in the sense of being medically required
and in the sense of being expenses that the plaintiff will, on the evidence, be
likely to incur (see generally Krangle). I therefore do not think it
appropriate to make provision for items or services that the plaintiff has not
used in the past (see Courdin at [paragraph] 35), or for items or
services that it is unlikely he will use in the future.

[119]     In the
present case it is quite clear that Mr. Abdalle has not followed the
recommendations of his physicians with respect to the medication,
physiotherapy, massage therapy, personal training sessions or increasing his
level of physical activity. There is no evidence that he is likely to do so in
the future. Accordingly, I agree with the submission of the defendant that no
award for future care costs should be made in the present case.

Special Damages

[120]     Special
damages were agreed to in the amount of $220.00.

Summary

[121]     In summary,
damages are awarded as follows:

(a)      non-pecuniary
loss $50,000 less a 20% deduction for contributory negligence ($10,000) and a 25%
deduction for failure to mitigate ($12,500) for a total of $27,500;

(b)      past
wage loss calculated on the basis of 74 days lost wages discounted by 22.5%;
and

(c)      special damages $220.

“Ross J.”