IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120314

Docket: M082180

Registry: Vancouver

Between:

Firoz Dahyalal Bhadlawala

Plaintiff

And:

Alexander Allen Baxter

Defendant

And:

Insurance Corporation of British
Columbia

Third Party

Docket: M103757

Registry: Vancouver

Between:

Firoz Dahyalal Bhadlawala

Plaintiff

And:

Ryan Robert, Michael Nguyen and

Insurance Corporation of British
Columbia

Defendant

And:

Insurance Corporation of British
Columbia

Third Party

Before: The Honourable Madam Justice
Gray

Reasons for Judgment

INTRODUCTION

[1]
Mr. Bhadlawala works for Zellers as a home entertainment department
salesperson. He claims damages for injuries suffered in two accidents, one in
2006 and one in 2008. The 2006 accident occurred when the defendant in the
first action, Mr. Baxter, reversed his car and struck the front of Mr.
Bhadlawala’s vehicle. The 2008 accident occurred when Mr. Bhadlawala followed a
shoplifter into the parking lot, and was struck by the escaping vehicle. Both
claims were heard at the same five-day trial.

[2]
The Insurance Corporation of British Columbia (“ICBC”) is the third
party in the action regarding the 2006 accident (“2006 Claim”), and is both a
defendant and the third party in the action regarding the 2008 accident (“2008
Claim”). No one appeared for the individual defendants. Counsel advised that
Mr. Baxter filed an appearance, but took no further steps after ICBC filed the
third party notice; that Mr. Robert was served but has not taken any further
steps in his defence; and that Mr. Nguyen was not served or found, so Mr.
Bhadlawala was not proceeding further against him. Because ICBC was defending
the claims, I sometimes refer to it as the “defence” rather than distinguishing
between its role as a third party and as a defendant.

[3]
ICBC admitted for the purpose of the 2006 Claim, but not otherwise, that
the 2006 collision occurred as a result of Mr. Baxter’s negligence. ICBC argued
that Mr. Bhadlawala was contributorily negligent in causing the 2008 accident,
and that his damages should be reduced by 25% to reflect that responsibility.
Counsel agreed that, if Mr. Bhadlawala is not held contributorily negligent for
the 2008 accident, it is not necessary to allocate damages between the two
accidents.

[4]
The issues on damages included the impact of the injuries on Mr.
Bhadlawala’s hours of work. Mr. Bhadlawala claims injury to his shoulders,
right knee, neck, and lower back. He seeks non-pecuniary damages, past loss of
income, lost future earning capacity, past and future loss of homemaking
capacity, cost of future care, and special damages.

FACTS

(a)      Before the 2006 accident

[5]
Mr. Bhadlawala qualified as a medical doctor in India in 1972. He did
not work as a doctor because his father died around that time and he went
instead to help with the family business. Mr. Bhadlawala is the eldest son in
his family, and considers himself responsible for assisting his six surviving
siblings.

[6]
Mr. Bhadlawala immigrated to Canada in 1977. He was not able to pass the
examinations required to permit him to practice medicine in Canada. Over the
next two or three years, he worked for a few months as a salesperson in each of
several gift, jewellery, and clothing stores.

[7]
Mr. Bhadlawala started working for Zellers, a department store, in 1980.
He was laid off for six months, but has worked at the Zellers in the Lynn
Valley area of North Vancouver, B.C., since 1983. He is social and engaging and
enjoys the customer contact his position requires.

[8]
Also in 1983, Mr. Bhadlawala began living in an apartment in the
Kitsilano area of Vancouver, B.C. He lives alone, on the second floor of a
building without an elevator. The laundry machines are in the basement of the
building. He has always done his own housekeeping, including sweeping the
floor, vacuuming, shopping, and laundry. He estimated that he spent four to five
hours a week on these chores before the accidents.

[9]
Dr. Fritz has been Mr. Bhadlawala’s family doctor since November 1990. Mr.
Bhadlawala has heart problems, which led to his first angioplasty in 1990. He
was advised to take medication and to exercise regularly. He began taking the
prescribed medication and regularly walked five to six miles at a time most
days of the week.

[10]
Mr. Bhadlawala worked for a variety of departments at Zellers. By the
mid 1990s, Mr. Bhadlawala worked predominantly in the home entertainment
department. Only one employee was considered the fulltime employee in that
department, and it was not Mr. Bhadlawala at that time. He was considered
part-time, but that involved 18 to 35 hours or more of work per week, and could
be as many as 45 or 50 hours per week.

[11]
Mr. Bhadlawala’s position at Zellers involved some heavy duties. These
included stocking shelves, moving merchandise, climbing ladders to get
merchandise, and helping customers move merchandise. His other duties included
talking to customers about their needs and the products, and sometimes taking
payment.

[12]
Mr. Bhadlawala had some right knee problems in the early 1990s.

[13]
Mr. Bhadlawala had three heart attacks in 1996. He returned to work by gradually
increasing his hours. Around this time, he developed non-insulin-dependent
diabetes. This was treated with exercise, diet, and later, oral medication. Mr.
Bhadlawala saw Dr. Fritz regularly to test his blood sugar and monitor the
diabetes.

[14]
Mr. Bhadlawala had a second angioplasty in 1999.

[15]
Mr. Bhadlawala had intermittent right lower back pain before the
accidents, but his last complaint to Dr. Fritz prior to 2006 was in November
2002. The problem disappeared when Mr. Bhadlawala got orthotics.

[16]
Mr. Bhadlawala had a fourth heart attack in 2004, and a further
angioplasty was recommended. While awaiting the angioplasty, he temporarily
reduced his work hours and exercise.

[17]
Following the 2004 angioplasty, Mr. Bhadlawala returned to work at Zellers.
He gradually increased the hours he worked during 2004 and 2005. Before he
returned to fulltime hours, there was a period when he suffered fatigue from
walking. The evidence at trial provided only the annual breakdown of the hours
he worked in the periods 2004 to 2009 and parts of 2010 and 2011. In 2004, he
worked about 1090 regular hours and about 51 overtime hours, for a total of
about 1140 hours worked.

[18]
In 2005, he worked about 1490 regular hours and about 35 overtime hours,
for a total of about 1525 hours worked.

[19]
By early 2006, Mr. Bhadlawala was routinely walking about five miles a
day, most days of the week. Dr. Fritz had recommended regular walking to
control his heart problems and his diabetes. In addition, Mr. Badlawala enjoyed
the fresh air and exercise and the opportunity to socialize with people on the
walk.

[20]
Mr. Bhadlawala enjoyed cooking, and would cook for friends two to three
times a month.

[21]
Prior to the 2006 accident, Mr. Bhadlawala did not have any major issues
with his shoulders, neck, knees or back.

[22]
Prior to the 2006 accident, Mr. Bhadlawala sold in-store credit for
Zellers as a credit solicitor, in addition to performing the duties of a
salesperson. He was outstanding at soliciting credit and received compliments
from management.

[23]
By early 2006, Mr. Bhadlawala was working full time hours of about 35 to
40 hours per week. His hourly salary was $12.15 per hour in early 2006, and
after that year increased to $12.50 per hour.

(b)      2006 Accident

[24]
 Mr. Bhadlawala was 62 years old at the time of the 2006 accident. It
occurred about mid-day on June 3, 2006. Mr. Bhadlawala was driving a 1992 Dodge
Spirit eastbound on 34th Avenue in Vancouver, B.C., and was stopped near the
intersection with Victoria Drive.

[25]
Mr. Baxter was driving a 2004 Dodge Durango immediately in front of Mr.
Bhadlawala. Mr. Baxter had driven into the intersection to turn left and go
northbound on Victoria Drive, but did not clear the intersection before
vehicles approached. Mr. Baxter reversed quickly into the right front side of
Mr. Bhadlawala’s vehicle. The cost of repairing Mr. Bhadlawala’s vehicle was
estimated at about $2,000.

(c)      Between the 2006 Accident and the 2008 Accident

[26]
The first time Mr. Bhadlawala saw his family doctor, Dr. Fritz, after
the 2006 accident was on June 5, 2006, two days following the accident. Mr.
Bhadlawala reported pain in his neck, right shoulder, and left lower back. He
also had left shoulder pain on turning his head to the left. Dr. Fritz observed
reduced range of motion in his neck and lower back. Mr. Bhadlawala complained
of similar symptoms on June 29, 2006.

[27]
Dr. Fritz prescribed physiotherapy in June or July 2006. Mr. Bhadlawala
received nine physiotherapy treatments in July and August 2006.

[28]
Mr. Bhadlawala did not take any time off work following the 2006
accident. However, he was assigned shorter shifts at Zellers than he had been
assigned prior to the accident, and worked fewer hours. The longer shifts
tended to include the heavier duties, like stocking the shelves with merchandise.

[29]
Mr. Bhadlawala worked about 1720 regular hours and about 67 overtime
hours in 2006, for a total of about 1790 hours worked. Unfortunately, the
evidence did not provide a breakdown of those hours, so it is not possible to
determine how many hours he worked in 2006 before and after the June 3, 2006
accident.

[30]
Ms. Prasad, assistant manager of the Lynn Valley Zellers, testified that
if Mr. Bhadlawala were able, Zellers would provide him with 38 to 40 hours of
work a week, in light of his seniority and his good relationship with
customers. On the basis that he works 48 weeks per year and has four weeks of
holiday, that would be 1824 to 1920 hours per year, being about 35 to 130 hours
more than he actually worked in 2006.

[31]
 Mr. Bhadlawala worked about 1450 regular hours and about 22 overtime
hours in 2007, for a total of about 1470 hours worked.

[32]
Mr. Bhadlawala continued to have symptoms in his neck, back, and
shoulders for over six months. He had difficulty performing the physical duties
of his job, experiencing pain with heavy lifting. Mr. Bhadlawala continued to
complain of symptoms to Dr. Fritz in late 2006 and early 2007.

[33]
Mr. Bhadlawala’s diabetes worsened in the period after the 2006
accident, probably because he was not exercising as much as he had before.

[34]
Mr. Bhadlawala reported left shoulder pain in March 2007 to Dr. Fritz,
who diagnosed bursitis. I accept the evidence of Dr. Fritz discussed below that
this is not likely related to the 2006 accident.

[35]
Mr. Bhadlawala had a flare of neck pain in July 2007. Dr. Fritz again
prescribed physiotherapy in August 2007, and Mr. Bhadlawala received three
treatments. He stopped because he felt he could not afford it, and his insurer
refused to pay for further treatment. He testified that the physiotherapy
improved his range of motion but he continued to have pain.

[36]
Mr. Bhadlawala continued to complain of pain in his neck, shoulder, and
back. In October 2007, an ultrasound imaging study was performed on his
shoulder, leading to a diagnosis of supraspinatus and subscapularis calcific
tendinopathy.

[37]
Zellers eliminated the position of credit solicitor around late 2007.

[38]
Mr. Bhadlawala had substantially recovered from the 2006 accident by
early August 2008, although he continued to have problems lifting. Zellers
accommodated him by not requiring him to do heavy lifting.

(d)      2008 Accident

[39]
Mr. Bhadlawala was 64 years old at the time of the 2008 accident. It
occurred at about 6:30 p.m. on August 31, 2008, in the parking lot of the Lynn
Valley Zellers store.

[40]
Mr. Bhadlawala was working in the home entertainment department of
Zellers when he saw a man put merchandise under his jacket. Mr. Bhadlawala
offered to assist the man to pay for the goods, but the man ignored him,
dropping one item. Mr. Bhadlawala took the three other items the man had, and
then the man ran out of the store.

[41]
Mr. Bhadlawala walked out of the store into the parking lot. Another man
pointed out a van, saying that the running man had got into it. Mr. Bhadlawala
walked into the parking lot. He stopped behind the van to record the license
plate number. He was standing in the parking lot more than one van length
behind the van, which had to reverse to leave its parking stall. He thought he
was far enough away that he could move out of the way if the van began moving.

[42]
The van reversed quickly and struck Mr. Bhadlawala within seconds of starting
to move. Mr. Bhadlawala tried to get out of the way but the van struck him on
both knees. He was thrown behind and to the side of the van. He landed hard on
the concrete, first hitting his head and then his right side.

(e)      Following 2008 Accident

[43]
Mr. Bhadlawala suffered a brief loss of consciousness. Mr. Karimi, a co-worker,
noted the license number of the van. When Mr. Bhadlawala regained
consciousness, Mr. Karimi and another man helped him into the store by taking
both of his arms. Mr. Bhadlawala was bleeding from both hands, both elbows, and
both knees, and both shoulders were scraped. Mr. Karimi applied first aid. Mr.
Bhadlawala attempted to go to a walk-in medical clinic but it was closed.

[44]
Mr. Bhadlawala first saw Dr. Fritz after the 2008 accident on September
2, 2008. Mr. Bhadlawala had x-rays of his knees, left wrist, and right
shoulder. Mr. Bhadlawala complained of pain in his neck, back, knees, and
shoulders, with his right shoulder worse than his left. He had bruises and
scrapes.

[45]
Mr. Bhadlawala took two weeks off work because of his symptoms from the
2008 accident.

[46]
When Mr. Bhadlawala returned to work, he used a stool to reduce the time
he stood, and Zellers accepted that accomodation. He walked with difficulty and
with a limp, and went up stairs one stair at a time. He worked shorter shifts
of three and four hours rather than the six and eight hour shifts he was
working before the accident.

[47]
Mr. Bhadlawala worked about 1510 regular hours and about 15 overtime
hours in 2008, for a total of about 1525 hours worked. The evidence at trial
did not enable an allocation of the hours worked for the periods before and
after the 2008 accident.

[48]
Mr. Bhadlawala found that his right shoulder was much worse than his
left, and his ability to perform the physical duties of his job was reduced. He
had trouble standing for long periods because of knee pain.

[49]
Eventually Mr. Bhadlawala stopped using the stool for work.

[50]
Ms. Prasad testified that on average, Mr. Bhadlawala lost between seven
and eight hours of work a week as a result of his inability to do heavy lifting
following the 2008 accident. In the first short period after the 2008 accident,
he worked only four hour shifts, instead of the seven or eight hour shifts he
worked before that. He gradually went back to regular shifts with assistance. Since
the 2008 accident, he has usually worked shifts of no more than six hours in
length, but occasionally he has worked a seven and a half or eight hour shift.

[51]
Mr. Bhadlawala’s knee pain has reduced since the 2008 accident, but he still
has trouble walking long distances and crouching.

[52]
In November 2008, Mr. Bhadlawala’s shoulder pain was improving but remained
significant. Dr. Fritz administered a cortisone shot to the right shoulder,
which was helpful.

[53]
In March 2009, Mr. Bhadlawala’s right shoulder pain had flared
significantly, and Dr. Craig administered another cortisone shot to his right
shoulder.

[54]
In May 2009, Mr. Bhadlawala had lost right shoulder range of motion. An
ultrasound on July 15, 2009, showed a partial tear of his right supraspinatus
tendon.

[55]
In 2009, Mr. Bhadlawala became the home entertainment division employee
at Lynn Valley who was considered fulltime. In 2009, Zellers started requiring
employees to be paid for holidays if they did not take the time off. Prior to
that, Mr. Bhadlawala did not take all his holidays and banked his holiday pay.

[56]
Mr. Bhadlawala worked about 1583 regular hours and about 74 overtime
hours in 2009, for a total of about 1655 hours worked.

[57]
By the spring of 2010, Mr. Bhadlawala’s shoulders had improved but were
still painful. Dr. Fritz recommended physiotherapy in April 2010. Mr.
Bhadlawala attended 22 sessions with a physiotherapist who specializes in
shoulders in the period of about six months from April 2010 to December 2010.
The physiotherapist treated all Mr. Bhadlawala’s areas of injury, not just his
shoulders.

[58]
Mr. Bhadlawala worked about 1325 regular hours and about 27 overtime
hours in 2010, for a total of about 1350 hours worked.

[59]
In early 2011, Target bought the assets of Zellers and announced an
intention to replace Zellers stores with Target stores. Mr. Bhadlawala observed
that following that announcement, Zellers stopped stocking as much new
merchandise as it had stocked prior to the announcement, and sales slowed. The
store still required staff, however, and Mr. Bhadlawala had sufficient
seniority that this announcement did not materially reduce his hours of work.

[60]
By the summer of 2011, Mr. Bhadlawala was walking three or four days a
week for about a mile each time. Walking can cause him neck and back pain. He
avoids swinging his arms because it causes neck and shoulder pain. He sometimes
rides his exercise bike instead of walking. He cooks less because of the strain
of reaching for ingredients.

(f)       At trial

[61]
At the time of trial, Mr. Bhadlawala was 67 years old. He continues to
work at the Lynn Valley Zellers store and to live in the second-floor Kitsilano
apartment. He is single and does not have any children. His family members live
in India, and he sends them money from time to time.

[62]
Mr. Bhadlawala continues to use oral medication to control his diabetes.
Dr. Fritz intends to switch Mr. Bhadlawala to insulin soon. Dr. Fritz testified
that due to medical advances, using insulin is likely to give Mr. Bhadlawala
greater control over his diabetes, and that he will be less likely to suffer
dangerously low blood sugar levels.

[63]
Mr. Bhadlawala continues to suffer pain in his shoulders, knees, neck, and
back. His right shoulder gives him the most pain. He has difficulty sleeping on
his right side and raising his right arm over his head. He has problems lifting
or moving merchandise owing to shoulder pain. He suffers frequent intermittent knee
pain, especially when he climbs stairs or walks more than a few blocks. He
suffers occasional mild neck and back pain, and has suffered a flare of neck
pain. He walks with a slight limp.

[64]
Mr. Bhadlawala remains an excellent salesperson. He intends to work for
as long as he is able. He enjoys the social contact with his co-workers and
customers. He wants to continue to earn income that he can send to assist his
family in India. He does not consider that his retirement savings will allow
him to retire comfortably. He mostly works shifts of six hours or less because
Zellers tries to accommodate his limitations.

[65]
The Lynn Valley Zellers is likely to close sometime between May 2012 and
July 2013. The staff members are likely to be dismissed. The premises are
likely to be remodelled for a Target department store. Existing Zellers staff who
wish to work for the Target store at the same location will face a competitive
application process.

[66]
Mr. Bhadlawala reads less and watches television less than he did prior
to the accident because he finds prolonged sitting painful and because of
shoulder pain when reading in bed.

[67]
Mr. Bhadlawala estimates that it takes him two to three times longer to
do his housekeeping than it took him prior to the accidents. He now cleans and
does his laundry less often than prior to the accidents. He no longer invites
people to his home because it is messy. He speaks to his siblings by telephone
every day or two.

EXPERT EVIDENCE

[68]
Mr. Bhadlawala relied on the expert evidence of his treating family
doctor, Dr. Fritz. He also called the evidence of two experts who examined him
and his medical records and prepared written reports. One was Dr. Craig, a
doctor specializing in physical medicine and rehabilitation (a specialty often
referred to as a “physiatry”). The other was Mr. Towsley, an occupational
therapist, who prepared a cost of future care report.

[69]
The defence did not call any expert evidence.

(a)      Dr. Fritz

[70]
Dr. Fritz, was accepted as an expert in family medicine. In his opinion:

a)  Mr. Bhadlawala
did not suffer from any significant orthopedic problems such as significant
neck or back problems before the 2006 accident;

b)  Mr. Bhadlawala
suffered mild to moderate pain in his neck, back, and right shoulder as a
result of injuries in the 2006 accident;

c)  Mr.
Bhadlawala suffered aggravation of his back injuries and further damaged his
right shoulder in the 2008 accident. He had asymptomatic knee arthritis prior
to the 2008 accident, which became symptomatic following significant damage to
the right knee in the 2008 accident. The left shoulder bursitis noted in March
2007 was probably not related to the 2006 accident;

d)  Dr. Fritz was
awaiting a consultation report from Dr. Regan, an orthopedic surgeon, regarding
Mr. Bhadlawala’s right shoulder. Dr. Fritz was not able to give a final
prognosis concerning the shoulder;

e)  Mr. Bhadlawala
has likely reached maximum medical improvement with respect to his back and
neck and probably near it for his shoulder;

f)  Mr.
Bhadlawala will likely suffer neck and back pain of a mild to moderate degree
that he did not experience prior to 2006 for the rest of his life, but the
problems will not worsen significantly;

g)  Mr. Bhadlawala’s
decreased ability to walk has reduced his ability to manage his diabetes, which
increases his risk of cardiovascular, diabetic and related problems;

h)  Mr. Bhadlawala
would not likely have knee symptoms if the 2008 accident had not occurred; and

i)  Dr.
Fritz recommended that Mr. Bhadlawala work with a trainer to help him lose
weight and improve his fitness, within the limitations of his symptoms. Dr.
Fritz wrote that Mr. Bhadlawala will need to take some medications for his neck
and back pain on at least an intermittent basis. Dr. Fritz also agreed with Dr.
Craig’s treatment recommendations.

(b)      Dr. Craig

[71]
Dr. Craig was accepted as an expert in physiatry. He examined Mr.
Bhadlawala on June 17, 2011, and prepared a report based on this examination
and his review of Mr. Bhadlawala’s medical records. In Dr. Craig’s opinion, Mr.
Bhadlawala suffered the following:

a)  mild to moderate
soft tissue injury to the neck in the 2006 accident, which was exacerbated by
the 2008 accident;

b)  mild to moderate
soft tissue injury to the shoulders with a possible rotator cuff injury in the
2006 accident, with greater injury to the left shoulder. This was exacerbated
by the 2008 accident, which caused more damage to the right shoulder;

c)  mild to
moderate soft tissue injury to the low back in the 2006 accident, which was
exacerbated by the 2008 accident; and

d)  triggering of
symptoms in the 2008 accident to pre-existing but asymptomatic osteoarthritis
in his right knee. The symptoms may have been triggered by alterations to Mr.
Bhadlawala’s gait or generalized deconditioning.

[72]
In Dr. Craig’s opinion, Mr. Bhadlawala might have developed symptomatic
knee osteoarthritis over time even without injuries from the 2008 accident.
However, Mr. Bhadlawala would not likely have knee symptoms at the time of
trial if the 2008 accident had not occurred.

[73]
In Dr. Craig’s opinion, Mr. Bhadlawala is likely to have continuing long-term
symptoms in his shoulders, neck, and back, and any improvement is likely to be
modest. His right knee may get worse with both greater pain and reduced
function. He has likely reached maximum medical improvement.

[74]
Dr. Craig recommended that Mr. Bhadlawala receive six to eight sessions
of intramuscular stimulation (“IMS”) for the treatment of his neck pain and six
to eight sessions of active release therapy. He also recommended up to three
sessions of trigger point injections and Botox injections. He also recommended steps
which are covered by the BC medical services plan, being cortisone injections
and possibly a referral to an orthopedic surgeon.

[75]
Dr. Craig also recommended a community-based exercise program, starting
with a kinesiologist for 18 to 24 sessions and progressing to general
conditioning programs such as yoga and pilates. Dr. Craig also suggested
viscosupplemental or cortisone injections for Mr. Bhadlawala’s right knee, and
possibly a knee brace.

[76]
Dr. Craig recommended six to eight physical therapy sessions for
treatment of Mr. Bhadlawala’s shoulders. He also recommended over-the-counter
pain medications.

(c)      Mr. Towsley

[77]
Mr. Towsley is an occupational therapist. He provided cost estimates for
the treatments suggested or mentioned by Dr. Craig.

(d)      Summary of medical evidence

[78]
The opinions of Drs. Fritz and Craig differed on whether Mr.
Bhadlawala’s left shoulder problems were caused by the 2006 accident. Dr. Fritz
thought they were not, while Dr. Craig was of the opinion that they were. I
prefer Dr. Fritz’s opinion, because it was based on his observations as a
treating physician, and because Dr. Craig did not explain why the symptoms Mr.
Bhadlawala complained of in March 2007 would not have been evident earlier
after the 2006 accident.

[79]
Mr. Bhadlawala’s right knee became symptomatic because of the 2008
accident. While it might have become symptomatic even if the accident had not
occurred, it is not clear when the symptoms would have occurred. On balance, it
is likely that Mr. Bhadlawala’s knee would not have become painful until after
he stopped working.

ANALYSIS

[80]
The case of Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), is
often cited as a reminder of the approach the court must take in assessing
injuries which depend on subjective reports of pain.  At 397-399 of the reasons
for judgment, Chief Justice McEachern wrote:

The assessment of damages in a moderate or moderately severe
whiplash injury is always difficult because plaintiffs, as in this case, are
usually genuine, decent people who honestly try to be as objective and as
factual as they can. Unfortunately, every injured person has a different
understanding of his own complaints and injuries, and it falls to judges to
translate injuries to damages.

…

Perhaps no injury has been the subject of so much judicial
consideration as the whiplash. Human experience tells us that these injuries
normally resolve themselves within six months to a year or so. Yet every
physician knows some patients whose complaint continues for years, and some
apparently never recover. For this reason, it is necessary for a court to
exercise caution and to examine all the evidence carefully so as to arrive at a
fair and reasonable compensation. Previously decided cases are some help (but
not much, because obviously every case is different).

…

In Butler v. Blaylock, decided 7th October 1981,
Vancouver No. B781505 (unreported), 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.

[81]
Mr. Bhadlawala’s complaints are substantially subjective complaints of
pain.

[82]
Mr. Bhadlawala’s evidence about the extent of his injuries was generally
reliable. English is not his first language, and sometimes his use of terms
like “always” and “mostly” was not literally correct. He gave some answers on
his Examination for Discovery which were not accurate concerning the hours he
worked following the accidents, but he had not adequately reviewed his payroll
records prior to giving those answers, and this did not reflect on his honesty.

[83]
Mr. Bhadlawala’s evidence about the effect of the accidents on his hours
of work was not reliable. The evidence of the Zellers assistant manager, Ms.
Prasad, of Mr. Bhadlawala’s co-worker, Mr. Karimi, and of Mr. Bhadlawala’s
payroll records was more reliable concerning what work Mr. Bhadlawala missed as
a consequence of his injuries from the accidents.

i)        Liability

[84]
On the basis of the admission in the pleading, Mr. Baxter is entirely
responsible for Mr. Bhadlawala’s injuries in the 2006 accident.

[85]
Regarding the 2008 accident, ICBC argued that Mr. Bhadlawala was
negligent in placing himself behind the van in the parking lot, and that he
thereby contributed to the accident. ICBC argued that Mr. Bhadlawala ought to
have known that the van was going to back up, and should not have stood behind
it. ICBC argued that Mr. Bhadlawala should be held 25% contributorily negligent
for the 2008 accident, and that his damages award should be reduced
accordingly.

[86]
Contributory negligence has been defined as “unreasonable conduct on the
part of a victim which, along with the negligence of others, has in law
contributed to the victim’s own injuries”: Lewis N. Klar, Tort Law, 4th
ed. (Toronto: Thomson Canada Limited, 2008) at 509.

[87]
A parking lot is a “highway” for the purposes of the Motor Vehicle
Act, R.S.B.C. 1996, c. 318. It is within the definition in section 1
because it is a “private place or passageway to which the public, for the
purpose of parking … has access or is invited.”

[88]
A pedestrian must yield the right of way to a vehicle when crossing a
highway at a point not in a crosswalk. This is set out in s. 180 of the Motor
Vehicle Act. Mr. Bhadlawala was not in a crosswalk when he was standing
behind the van. In addition, pedestrians owe a common law duty to exercise due
care for their own safety and the safety of others: Cook v. Teh (1990), 45
B.C.L.R. (2d) 194 at 211, 24 M.V.R. (2d) 115 (B.C.C.A).

[89]
However, s. 181 provides that, despite s. 180, a driver of a vehicle
must “exercise due care to avoid colliding with a pedestrian who is on the
highway”, and must “give warning by sounding the horn of the vehicle when
necessary”.

[90]
While not cited by counsel, s. 193 of the Motor Vehicle Act (previously
known as s.194) is as follows:

The driver of a vehicle must not
cause the vehicle to move backwards into an intersection or over a crosswalk,
and must not in any event or at any place cause a vehicle to move backwards
unless the movement can be made in safety.

[91]
That section was discussed in Carson v. Henyecz, 2012 BCSC 314 as
follows at paras. 48 through 51:

[48]      In Ireland
[v. Yun, [1987] B.C.J. No. 653], Mr. Justice Tyrwhitt-Drake, in
assessing s. 194, concluded that liability on a reversing driver “is very close
to absolute.”

[49]  This
view was somewhat softened in Dechev [v. Judas, 2004 BCSC 1564],
when Boyd J. stated:

[21] I am not persuaded that
s. 193 of the Motor Vehicle Act may be so narrowly interpreted as it was
in Ireland, supra. …

[22] I agree with defence
counsel that neither the provisions of the Motor Vehicle Act, nor the
law generally require perfection on the part of the defendant. The defendant is
“not bound to guard against every conceivable eventuality but only against
such eventualities as a reasonable man ought to foresee as being within the
ordinary range of human experience.” (see O’Brien (Next Friend of) v.
Mrakic, [1983] B.C.J. No. 521 (B.C.S.C.)).

[50]  In
Rinta [v. Vanderbasch, [1996] B.C.J. No. 2834], Lambert J.A. for
the Court of Appeal stated:

[3] The trial judge
concluded that Ms. Rinta did not take proper care for her own safety. He dealt
with the question of whether the driver was negligent and in that consideration
he looked at s. 194 of the Motor Vehicle Act, which reads in this way:

The driver of a vehicle shall not
cause the vehicle to move backwards into an intersection or over a crosswalk,
and shall not in any event or at any place cause a vehicle to move backwards
unless the movement can be made in safety.

[4] The trial judge
considered all the facts that I have described. He decided that s. 194 does not
impose an absolute liability on the driver who is backing up and with that I
agree. It imposes a high standard of care and the conduct of a driver backing
up, as this defendant was, must be considered in relation to that standard.

[51]      In Leung
[v. Tham, [1999] B.C.J. No. 119], Paris J. stated as it relates to
s. 193:

[12] The authorities say that the latter section
(and, it seems to me, common sense) impose a high standard of care on a driver
backing up …

[92]
Mr. Bhadlawala was standing behind the van before the van started
moving, and therefore was already “on the highway”. The driver of the van ought
to have looked behind the van before moving in reverse, seen Mr. Bhadlawala,
sounded the horn, and waited until Mr. Bhadlawala was out of the way before
leaving the parking spot.

[93]
The defence argued that Mr. Bhadlawala should not have pursued the shoplifter.
However, the accident was not the result of pursuing the shoplifter. It was the
result of the van striking Mr. Bhadlawala in the parking lot.

[94]
The shoplifter was in the van. The evidence did not establish whether
the shoplifter was the driver or a passenger in the van. The driver of the van
probably wanted to avoid anyone noting the van’s license number. It was
reasonable for Mr. Bhadlawala to have anticipated that the van might have
backed up.

[95]
However, the risk of being caught shoplifting is far less significant
than the risk of being caught striking a pedestrian with a vehicle.

[96]
It was not reasonably foreseeable that the driver of the van would
reverse so quickly that Mr. Bhadlawala could not move out of the way in time to
avoid being struck. Mr. Bhadlawala was standing over a van length behind the
van, which would have given him ample time to get out of the way if the van had
moved at a reasonable speed.

[97]
In Guiliani v. Saville, 1999 BCCA 768, the court of appeal held that
the defendant’s conduct in driving into the plaintiff pedestrian following
insulting and argumentative gestures was flagrant, deliberately reckless, and
unforeseeable, and the defendant had plenty of room on the road to avoid the
plaintiff. The court of appeal rejected the proposition that, having regard to
the previous exchange of gestures, the plaintiff should have known that he
would be in great danger if he stood on the road while the defendant
approached. The kind and degree of negligence required to strike the plaintiff
was so great as to render it not reasonably foreseeable to the plaintiff that
he was at risk until the car was too close for him to take effective evasive
action. The court of appeal held that the plaintiff had not been contributing
negligent.

[98]
Similarly, in Wepruk v. McGarva, 2005 BCSC 508, aff’d 2006 BCCA 07,
leave to appeal dismissed [2006] S.C.C.A. No. 177, a pedestrian was held not to
be contributorily negligent when he walked in front of a vehicle after smashing
its windows while the driver was in it. It was not reasonably foreseeable that
the car would be driven into the pedestrian either intentionally or
accidentally.

[99]
Here, it was not reasonable for Mr. Bhadlawala to have foreseen that the
van would back up so quickly that he would be unable to get out of the way.

[100]  This is
consistent with the analysis in Bohati v. Jewell (1996) 84 B.C.A.C. 161,
22 M.V.R. (3d) 146, which held a driver entirely responsible for injuring a
pedestrian in a parking lot who was not in a cross walk.

[101]  As a
result, Mr. Robert is entirely responsible for the 2008 accident.

ii)       Quantum of damages

[102]  Mr. Bhadlawala
claims damages under the following headings:

a)  past and future loss
of homemaking capacity;

b)  non-pecuniary
damages;

c)  past wage
loss;

d)  loss of future
earning capacity;

e)  special damages;
and

f)  cost
of future care.

[103]  Mr. Jones
agreed on behalf of the defence that, if the court concluded that Mr.
Bhadlawala was not contributorily negligent in respect of the 2008 accident,
there was no need to apportion the damages between the two accidents. As a
result, having concluded that the defence was entirely responsible for the 2008
accident, Mr. Bhadlawala’s damages can be assessed globally.

a)       Past and Future Loss of homemaking capacity

[104]  Mr.
Bhadlawala claims $15,200 in respect of past lost homemaking capacity, and a
further $15,200 in respect of future lost homemaking capacity. The position of
the defence is that he is not entitled to a separate award for this claim, and
that any impact on his homemaking capacity should be reflected in the assessment
of non-pecuniary damages.

[105]  In Kroeker
v. Jansen (1995), 123 D.L.R. (4th) 652, 4 B.C.L.R. (3d) 178 (C.A.), the
court of appeal recognized that, depending on the circumstances, compensation
for loss of housekeeping capacity might be given under any one of five
headings: non-pecuniary damages, special damages, past loss of income, cost of
future care, and loss of future earning capacity, or might be considered an
entirely new head of damages, sometimes pecuniary, sometimes not. It also
recognized that if the compensation was by non-pecuniary damages, there was no
reason these damages could not be segregated.

[106]
In McTavish v. MacGillivray, 2000 BCCA 164, Huddart J.A. wrote at
para. 69 as follows:

A plaintiff who performed the
tasks with difficulty or functioned with the tasks undone and never to be done
will be compensated for that loss under the head of pain and suffering and loss
of amenity, just as she would if she were to go to work every day, earning her
regular wages, but suffer in the course of mitigating her loss.

[107]  Mr.
Bhadlawala has been able to do all his household chores. It has been more
difficult and time-consuming for him to do them, and he has lived with a
messier home and restricted his socializing accordingly. It is appropriate to
consider his lost past and future housekeeping capacity as part of the award
for non-pecuniary damages.

b)       Non-pecuniary Damages

[108]  Mr. Bhadlawala
argued that he should receive an award in the range of $70,000 to $90,000 for
non-pecuniary damages. The defence argued that his damages should be in the
range of $15,000 to $20,000 for each accident, being a total of $30,000 to
$40,000.

[109]  The
position of the defence is that any difficulty Mr. Bhadlawala has in lifting is
caused by the left shoulder bursitis, which I have accepted was not caused by
either accident. The left shoulder bursitis was diagnosed in March 2007. Some
of Mr. Bhadlawala’s difficulty lifting in the period March 2007 until the 2008
accident about 18 months later was likely attributable to the bursitis and not
the 2006 accident. However, following the 2008 accident, Mr. Bhadlawala experienced
greater difficulty with his right shoulder, and that has left him with
limitations in performing the heavier duties of his work.

[110]  Mr. Bhadlawala
relied on the following cases regarding quantum of damages: Unger v. Singh,
2000 BCCA 94; Foran v. Nguyen, 2006 BCSC 605; Harvey v. Yanko,
2007 BCSC 216; and Durand v. Bolt, 2007 BCSC 480. Those cases made
awards for non-pecuniary damages which, converted to 2011 dollars, range from
about $80,000 to about $110,000.

[111]  With
respect to the component of past lost homemaking capacity, Mr. Bhadlawala
argued that the court should consider that he has likely required an extra four
hours a week to perform these chores. At the rate of 200 hours per year for the
five and a half years between the 2006 accident and the trial, at the rate he
was paid for working, being on average about $13.75 per hour, or on the basis
of $15.00 per hour for a housecleaner, that would amount to about $15,000 for
the past loss.

[112]  Mr.
Bhadlawala claims a further $15,000 for his future lost homemaking capacity, recognizing
that he would likely have suffered a decrease in his homemaking capacity
through aging even if the accidents had not occurred.

[113]  The
defence relied on the following cases: Ryan v. Klakowich, 2011 BCSC 835;
Myers v. Leng, 2006 BCSC 1582; Fiorda v. Say, 2011 BCSC 1293; and
Verhnjak v. Papa, 2005 BCSC 1129. In those cases the assessment of
non-pecuniary damages ranged from $25,000 to $40,000.

[114]  Mr. Bhadlawala
has suffered ongoing pain in his shoulders, neck, and lower back since the 2006
accident. As discussed below, he has lost about $5,000 per year in income following
the 2006 accident. There was a period in 2007 when his lower back pain appeared
to be resolving, but he suffered a further back injury in the 2008 accident.
That accident also caused limitations in his knees and worse pain in his right
shoulder, limiting his range of motion.

[115]  Mr.
Bhadlawala is limited in his ability to reach over his head and to lift heavy
objects. He missed two weeks of work, and has missed the opportunity to work
more hours at Zellers ever since the 2006 accident. The symptoms also reduce
Mr. Bhadlawala’s ability to exercise and manage his diabetes.

[116]  Mr.
Bhadlawala’s pain has decreased since the 2008 accident. For example, he no
longer uses a stool at work. Mr. Bhadlawala’s knee pain is intermittent, and
associated with walking long distances and climbing stairs.

[117]  Mr.
Bhadlawala has suffered a loss to his homemaking capacity. Of the award for
non-pecuniary damages, I am taking into account $5,000 for his past lost
homemaking capacity and $5,000 for his future lost homemaking capacity. This
reflects the impact on his enjoyment of life of the increased time he requires
to do his chores, and the fact that his home is now messier and he is reluctant
to invite guests.

[118]  There was
a risk that Mr. Bhadlawala would develop problems with walking and reaching
either because of his diabetes or the effects of aging.

[119]  In all the
circumstances, an appropriate award is $40,000.

c)       Past Wage Loss

[120]  Mr. Bhadlawala
claims $26,000 for past income loss. The defence argued that Mr.
Bhadlawala was entitled to compensation for missing two weeks of work after the
2008 accident, and for another week of work in respect of working half time for
two weeks. The defence calculated those two items as totalling about $1,500, to
be further reduced in respect of income tax.

[121]  Mr.
Bhadlawala claims $1,100 for the two weeks of work he missed after the 2008
accident. At $14.25 per hour for 75 to 80 hours, he would have earned $1,068.75
to $1,140.00. The position of the defence is that he would have worked only 70
hours, and so the total is $997.50, to be reduced further to reflect income
taxes.

[122]  Mr.
Bhadlawala is entitled to $1,100 for the two lost weeks of work, subject to
reduction for income tax.

[123]  The balance
of Mr. Bhadlawala’s past wage loss claim is based on his alleged lost
opportunity to work seven to eight hours a week, being 364 to 416 hours per
year, since the 2006 accident. Mr. Bhadlawala argued that the midpoint of 390 lost
hours of work per year is a reasonable number. The evidence disclosed rates
from $12.15 per hour in 2006 to $15.30 in 2011. Mr. Bhadlawala’s calculations
used midpoint hourly rates. He also argued that the tax deduction would vary
from a low of 12.46% in 2007 to a high of 14.32% in 2010 and 2011.

[124]  Mr.
Bhadlawala’s calculations claimed roughly $5,000 per year for the period of
about five and a half years since the 2006 accident, for a net claim total of
about $26,000.

[125]  The
evidence included the testimony of Ms. Prasad, assistant manager of Zellers
Lynn Valley, and of Mr. Bhadlawala’s co-worker, Mr. Karimi. The evidence
establishes that Zellers would have offered Mr. Bhadlawala more hours of work
if he did not have limitations in reaching and lifting, which are required for
stocking shelves. The evidence also establishes that Mr. Bhadlawala would have
worked the extra time if Zellers had offered it to him.

[126]  The
evidence was not clear about how much more work would have been available to
Mr. Bhadlawala if he did not have limitations in reaching and heavy lifting.
Mr. Bhadlawala relied on Ms. Prasad’s estimation that he would have been
offered seven or eight more hours of work per week. The defence relied on the
record of the hours Mr. Bhadlawala worked prior to the accidents, and argued
that they did not support a finding of a material reduction in his hours of
work.

[127]  The record
of Mr. Bhadlawala’s actual hours worked is of assistance. His low hours of work
in 2004 and 2005 are attributable to his heart problems. By the first half of
2006, he was working essentially fulltime. His hours worked in 2006 were about
1790 hours, being about 265 more than the 1525 hours he worked in 2005.

[128]   The
average of Mr. Bhadlawala’s hours worked in the years 2007 to 2010 was about
1495 hours. That is about 300 hours fewer hours than he worked in 2006.

[129]  If the
hours Mr. Bhadlawala had worked in the first half of 2006 compared to the
second half had been available, they would have shown that he worked more hours
on average prior to the 2006 accident.

[130]  Some of Mr.
Bhadlawala’s limitations in working in the period March 2007 to August 2008 are
attributable to his left shoulder bursitis, which was not caused by the
accident. As a result, the past wage loss will be calculated on the basis of
four years, being the five and one-third years between the 2006 accident and
the trial, less 16 months regarding the left shoulder bursitis.

[131]  In these
circumstances, it is reasonable to conclude that Mr. Bhadlawala lost the
ability to work about 400 hours per year for about four years between the 2006
accident and the trial. Using the average rate of $13.00 per hour, that would
be about $5,200 per year, and about $20,800 for the whole period. Together with
the $1,100 of past lost income, the total is $21,900. That award must be reduced
by about 13% to reflect income tax.

[132]  Mr.
Bhadlawala is entitled to an award of $19,000 in respect of his lost employment
income to the date of trial as a result of the two accidents.

d)       Loss of Future Earning Capacity

[133]  Mr. Bhadlawala
claims $36,000 for loss of earning capacity. That is based on losing seven to
eight hours of work a week for about a year until Zellers closes, and then
losing about one year of earnings at $30,000. The position of the defence is
that Mr. Bhadlawala has not suffered any loss of future earning capacity.

[134]
In Perren v. Lalari, 2010 BCCA 140, Garson J.A., for the court,
conducted a comprehensive review of the jurisprudence in this province on the
assessment of damages for loss of future earning capacity. Her conclusions were
as follows:

[30]      Having reviewed all of these
cases, I conclude that none of them are inconsistent with the basic principles
articulated in Athey v. Leonati, [1996] 3 S.C.R. 458, and Andrews v.
Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229. These principles are:

1.         A future or hypothetical
possibility will be taken into consideration as long as it is a real and
substantial possibility and not mere speculation [Athey at
para. 27], and

2.         It is not loss of
earnings but, rather, loss of earning capacity for which compensation must be
made [Andrews at 251].

[31]      Furthermore, I conclude that there
is no conflict between Steward and the earlier judgment in Pallos.
As mentioned earlier, Pallos is not authority for the proposition
that mere speculation of future loss of earning capacity is sufficient to
justify an award for damages for loss of future earning capacity.

[32]      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.

[emphasis in original]

[135]
The factors relevant for assessing the value of lost future earning capacity
are set out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at para 8:

1. The plaintiff has been rendered less capable overall from
earning income from all types of employment;

2. The plaintiff is less marketable or attractive as an
employee to potential employers;

3. The plaintiff has lost the ability to take advantage of
all job opportunities which might otherwise have been open to him, had he not
been injured; and

4. The plaintiff is less valuable
to himself as a person capable of earning income in a competitive labour
market.

[136]
In Reilly v. Lynn, 2003 BCCA 49 at paras. 100-101, Low and
Smith JJ.A. summarized the approach to assessing lost earning capacity as
follows:

[100]    An award for loss of earning capacity presents
particular difficulties. As Dickson J. (as he then was) said, in Andrews v.
Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 251:

We must now gaze more deeply into
the crystal ball. What sort of a career would the accident victim have had?
What were his prospects and potential prior to the accident?  It is not loss of
earnings but, rather, loss of earning capacity for which compensation must be
made: The Queen v. Jennings, supra. A capital asset has been lost: what
was its value?

[101]    The relevant principles may be briefly summarized.
The standard of proof in relation to future events is simple probability, not
the balance of probabilities, and hypothetical events are to be given weight
according to their relative likelihood: Athey v. Leonati, [1996] 3
S.C.R. 458 at para. 27. A plaintiff is entitled to compensation for real
and substantial possibilities of loss, which are to be quantified by estimating
the chance of the loss occurring: Athey v. Leonati, supra, at
para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135
(C.A.). The valuation of the loss of earning capacity may involve a comparison
of what the plaintiff would probably have earned but for the accident with what
he will probably earn in his injured condition: Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the end of the
inquiry; the overall fairness and reasonableness of the award must be
considered: Rosvold v. Dunlop (2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1
at para. 11; Ryder v. Paquette, [1995] B.C.J. No. 644 (C.A.)
(Q.L.). Moreover, the task of the Court is to assess the losses, not to
calculate them mathematically: Mulholland (Guardian ad litem of) v. Riley
Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Finally, since the course of
future events is unknown, allowance must be made for the contingency that the
assumptions upon which the award is based may prove to be wrong: Milina v.
Bartsch, supra, at 79. In adjusting for contingencies, the remarks of
Dickson J. in Andrews v. Grand & Toy Alberta Ltd., supra, at 253,
are a useful guide:

First, in many respects, these
contingencies implicitly are already contained in an assessment of the
projected average level of earnings of the injured person, for one must assume
that this figure is a projection with respect to the real world of work, vicissitudes
and all. Second, not all contingencies are adverse … Finally, in modern
society there are many public and private schemes which cushion the individual
against adverse contingencies. Clearly, the percentage deduction which is
proper will depend on the facts of the individual case, particularly the nature
of the plaintiff’s occupation, but generally it will be small …

[emphasis added
by Low and Smith JJ.A.]

[137]  There is a
real and substantial possibility of a future event leading to an income loss for
Mr. Bhadlawala. He is likely to lose his job at Zellers when the store closes.
He will have to compete for work. He is well-liked and accommodated in his
present position at Zellers, but his current supervisors may move to different
jobs, and may not work for Target, with the result that he may not be hired by
Target. Even if he were hired by Target, he would likely suffer a period of
unemployment while the store was renovated.

[138]  The
assessment of loss of future earning capacity is not a mathematical exercise,
and must deal to some extent with the unknowable. As Huddart J.A. put it in Rosvold
v. Dunlop, 2001 BCCA 1 at para. 9, “[p]ossibilities and probabilities,
chances, opportunities, and risks must all be considered, so long as they are a
real and substantial possibility and not mere speculation”.

[139]  As a
result of the accident, Mr. Bhadlawala is less capable of performing work
involving lifting, walking, and reaching. In his present position at Zellers,
he is not able to obtain as many work hours as he would if he could move heavy
merchandise. He is less marketable and more limited in the work he can pursue.
He is less able to take advantage of job opportunities and less valuable to
himself as someone earning income in a competitive market.

[140]  If the
accidents had not occurred, Mr. Bhadlawala would likely have continued working
at Zellers, and Zellers until it closes around the end of 2012. At that time,
Mr. Bhadlawala would be an experienced 68 year old salesperson, with almost 30
years of experience for a single employer, including about 20 years working in
the field of home electronics. He would likely have suffered a significant
period of unemployment, and some difficulty finding new employment, because of
his age and his long service for one employer.

[141]  It is also
likely that Mr. Bhadlawala would have worked more hours and earned an
additional $5,200 over the year following trial. There is some risk that he
might have stopped working for health or other reasons, and a chance that his
salary might have been increased.

[142]  Further,
it is likely that Mr. Bhadlawala will have more difficulty finding another job
after Zellers than he would have had if he did not suffer the limitations on
standing, walking, and lifting arising from the accidents. It is difficult to
measure how much more difficult it will be for him to find another job because
of his physical limitations. This is particularly so as he is at an age when
most people choose to stop working, or work at jobs which do not involve heavy
lifting.

[143]  An award
for future lost earning capacity must be assessed, not calculated.

[144]  In the
circumstances, an award of $15,000 is appropriate. This reflects about $5,000
for the earnings he is likely to lose until Zellers is likely to close, and
about $10,000 in respect of the additional time he is likely to require to find
new work because of his limitations.

e)       Special Damages

[145]  Mr. Bhadlawala
claims $1,361.75 in special damages. The defence agreed. The expenses were for
physiotherapy and Tylenol in 2006 totalling $306.75, and $1,055.00 for
physiotherapy in 2010 and early 2011.

f)        Cost of Future Care

[146]  Mr. Bhadlawala
claims $19,550 for future care costs. The position of the defence is that he is
entitled to an award of $3,120 to $3,200 for future care costs in respect of
the 2006 accident, and of $750 to $890 in respect of the 2008 accident, being a
total of $3,870 to $4,090.

[147]  Mr. Bhadlawala’s
claim for future care costs is for 14 items with costs ranging from a low of
$200 to a high of $4,980.

[148]  The
defence accepts the claims for IMS, active release therapy, botox injections,
and vicosupplements, but argued that the claim for the latter three items
should be reduced by 50% to reflect the possibility that they will not be
necessary. The defence argued that vicosupplements may not be necessary because
it is an alternative to cortisone, which may be satisfactory. The defence also
argued that the claim for a knee brace should be reduced to reflect the
contingencies that it may not be needed, that if needed it will likely be years
into the future, and that it might have become necessary even if the accidents
had not occurred because of the pre-existing asymptomatic condition.

[149]  The
defence agreed that Mr. Bhadlawala was entitled to an award for physiotherapy
appointments and a personal trainer or kinesiologist. The defence argued that
Mr. Bhadlawala should not receive additional compensation regarding yoga or
pilates, because he can learn the necessary exercises from a kinesiologist.

[150]  The
defence also argued that Mr. Bhadlawala should not be compensated for a gym
membership, because that was not recommended by either Dr. Fritz or Dr. Craig.
In addition, the defence argued that any need Mr. Bhadlawala has for a gym
membership arises from his diabetes and heart problems, which are not related
to the accident.

[151]  Mr.
Bhadlawala was able to obtain sufficient exercise through walking prior to the
2006 accident. As a result of the accidents, he cannot meet his need for
exercise easily without a gym membership.

[152]  The
defence opposed the claim for a vocational assessment on the basis that it will
not be necessary for Mr. Bhadlawala, whose sales skills remain intact following
the accidents.

[153]  The
defence opposed any award regarding medications.

[154]  Mr.
Bhadlawala is entitled to recover for the cost of future care which is reasonable
and medically justified: Ha v. Fritzke, 1999 BCCA 667 at para 10.

[155]  Awards for
cost of future care must be reasonable, both in the sense of being medically
required and in the sense of being costs that, on the evidence, the plaintiff
will be likely to incur: Krangle v. Brisco, 2002 SCC 9, [2002] 1 S.C.R.
205; Laroche v. MacPhail, 2007 BCSC 1451; Izony v. Weidlich, 2006
BCSC 1315.

[156]  The
following items of future care costs are reasonable for Mr. Bhadlawala as
arising from the accidents:

a)  IMS, $490;

b)  active release
therapy, $285;

c)  trigger
point or botox injections, $2,000;

d)  physiotherapy,
$490;

e)  kinesiologist/personal
trainer, $1,575;

f)  YMCA
membership, $3,500; and

g)  medication,
$200.

[157]  The total
amount of the future care items on that list is $8,340.

[158]  Mr.
Bhadlawala may not require some of those treatments, and may require viscosupplement
injections, but that contingency is adequately reflected by allowing the costs
discussed above.

[159]  Mr.
Bhadlawala has not established that there is a real and substantial possibility
that he will require shoulder surgery, so physiotherapy and income replacement
regarding such surgery is not appropriate. An additional yoga/pilates
membership is not appropriate in light of the award for the YMCA membership. A
vocational assessment is not appropriate in light of the stage of Mr.
Bhadlawala’s career. He has long experience as a salesperson, and should be
able to pursue sales positions which do not require heavy work. Mr. Bhadlawala
does not require a household assessment.

[160]  Mr.
Bhadlawala is entitled to $10,000 for future care costs.

SUMMARY

[161]  In
summary, Mr. Bhadlawala is entitled to an award of $85,361.75, consisting of
the following:

a)  $40,000 for
non-pecuniary damages;

b)  $19,000 for past
wage loss;

c)  $15,000
for lost future earning capacity;

d)  $1,361.75 for
special damages; and

e)  $10,000 for the
cost of future care.

[162]
If the parties are unable to agree on costs, they should schedule a
further hearing before me through the registry.

“Gray J.”

_______________________________

The Honourable Madam
Justice Gray