IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120413

Docket: M102383

Registry:
Vancouver

Between:

Charanjit Singh Buttar

Plaintiff

And

John Brennan

Defendant

Before:
The Honourable Mr. Justice Abrioux

Reasons for Judgment

I         INTRODUCTION

[1]            
Charanjit Singh Buttar claims damages for the injuries he suffered in a
motor vehicle accident which occurred on October 24, 2008 (the “Accident”).

[2]            
The Accident occurred at the intersection of No.1 Road and Westminster
Highway in Richmond, British Columbia.  The plaintiff was driving a Jeep and
had no opportunity to avoid the collision.  His vehicle was rendered a total
loss.  Liability is admitted on behalf of the defendant.

[3]            
The plaintiff’s claim is for general damages for pain and suffering and
loss of enjoyment of life, past and future loss of earning capacity, special
damages and damages for costs of future care.

II        BACKGROUND

[4]            
Mr. Buttar is now 44 years old.  He lives with his wife, two children,
brother and sister-in-law in Richmond, B.C.

[5]            
Mr. Buttar was born and raised in India, arriving in Canada in 1990. 
His entire work history since arriving in Canada has been in the construction
industry.  His expertise is in framing buildings.

[6]            
In approximately 2000 he established his own business, Avjot
Construction Company Ltd. (“Avjot”).  Avjot, both prior and subsequent to the Accident,
had a work crew of five to six employees, including the plaintiff.  There was a
significant physical component to the plaintiff’s work.  In addition, as the
principal of Avjot it was the plaintiff’s responsibility to find new business,
interact with clients, supervise his employees, etc.

[7]            
The plaintiff was clearly a “hands on” employer.  Before the Accident he
participated fully in many aspects of the labouring work.  This included
stripping forms of the foundation, lifting heavy beams, walking up a ladder
while carrying a heavy beam, lifting walls, going into trusses and performing
work related to the fascia board of the buildings he was constructing.  Prior
to the Accident the principal source of Avjot’s work was single family
residences although it did undertake the framing of multi-unit construction on
some occasions.  One of the issues in this action is the extent to which the
plaintiff’s business was capable of accepting an increased level of multi-unit
construction projects post Accident.  It was the plaintiff’s position this type
of construction framing was more profitable than the single family residences.

[8]            
The evidence discloses that Mr. Buttar was a hard working man who was
dedicated to his work and the business he had developed over the years.

[9]            
The plaintiff’s health prior to the Accident is noteworthy in that there
had been periodic episodes of low back pain for some years.  This resulted both
from prior motor vehicle accidents, particularly one which occurred in August
of 2005 (the “2005 Accident”) and the various aches and pains which resulted
from working for many years in what was at times a physically strenuous
occupation.

[10]        
It was the plaintiff’s evidence he was functioning at a high level,
working 50 to 60 hours per week without difficulty prior to the Accident.  He
testified the symptoms from the 2005 Accident had resolved.  He had been
asymptomatic in his neck for a period of approximately two and a half years
prior to the Accident.  That was also the case with some difficulties he had
with his left shoulder.  He acknowledged he had experienced occasional/episodic
non-disabling low back pain.  He testified this did not affect his ability to
function prior to the Accident.  He also had carpel tunnel syndrome in his
right wrist.

[11]        
Mr. Buttar telephoned his wife from the Accident scene.  She came to
pick him up and drive him home.  He did not attend a hospital but did go and
consult his family physician, Dr. Johal, later the same day.

[12]        
The principal injuries sustained in the Accident were musculo-ligamentous
injuries to the neck, thoracolumbar region of the spine and left shoulder.  In
addition the plaintiff sustained a right knee contusion.  He developed
post-traumatic chondromalacia patella to the right knee.

[13]        
The plaintiff was under the care of Dr. Johal on a periodic basis in the
months following the Accident.  He also underwent some physiotherapy treatments
for some time.

[14]        
The plaintiff testified that his left shoulder greatly improved in the
timeframe following the Accident.  He noted that although the pain in his lower
back also improved, this condition still caused him significant pain at work
and impaired his function in terms of his framing responsibilities.  It was his
evidence that although the low back symptoms improved in the summer or in
warmer weather, his back pain essentially plateaued in October 2010.  He noted
difficulties with standing and stated that he would experience “deep pain” in
his lower back both during and after work depending on how much bending and
physical work he had to do.  He had to purchase a belt to use at work. 
Furthermore, one of his clients had agreed to hire a portable lift so that he
could better access portions of the structure which he was responsible for
framing.

[15]        
Insofar as the injury to the knee was concerned he testified that
although there was significant improvement in the first two years after the Accident
there had been no significant change since the fall of 2010.  He continues to
experience pain to his right knee when he kneels, bends and goes up and down
stairs.  His knee problems also affect his ability to function at work.

III        MEDICAL EVIDENCE

[16]        
In 2010 and 2011 the plaintiff was examined by a number of specialists
within the context of this litigation.  His counsel arranged for him to be
assessed by the physiatrist Dr. Adrian in June 2010 and October 2011, the
orthopedic specialist Dr. McGraw in June 2011, and the occupational therapist
Paul Pakulak for the purpose of a functional capacity evaluation in January
2011.  The defendant had the plaintiff assessed by the orthopedic specialist
Dr. Kenneth Hill in October 2011.

[17]        
There were many areas of agreement between the various professionals who
assessed Mr. Buttar for the purposes of this action.  Specifically, there
appeared to be agreement that the plaintiff’s ongoing low back symptoms were
soft tissue in nature.  The expression “mechanical low back pain” was used.

[18]        
Insofar as the knee is concerned, Dr. McGraw was sufficiently concerned
that he recommended an MRI of the right knee joint with special emphasis on the
patello femoral articulation should the right knee joint symptoms continue. 
That MRI occurred in September 2011.  Dr. McGraw’s opinion was that the mild
cartilage degeneration of the kneecap correlated with the clinical diagnosis of
patello femoral symptoms on the basis of the cartilage injury.  It was his
opinion that spontaneous resolution of the complaints could not be
anticipated.  He did not recommend arthroscopic surgery, being of the view that
management of the ongoing knee problem should be directed at avoidance of aggravating
activities and the maintenance of muscles above the knee joint.

[19]        
Dr. Hill agreed with Dr. McGraw with respect to the ongoing nature of
Mr. Buttar’s knee problems and their management.  The only significant
difference of opinion between them was that Dr. Hill was of the view the
structural changes in the patello femoral joint pre-dated the Accident.  Dr.
Hill, however, did not have the benefit of reviewing the knee MRI which was
undertaken in September 2011.  To the extent there is a difference of opinion
as between Dr. McGraw and Dr. Hill with respect to the knee, I prefer and
accept the views of Dr. McGraw.

[20]        
The medical evidence pertaining to the knee must be considered in the
context of the plaintiff’s evidence which was that, with the passage of time,
the knee improved significantly.

[21]        
Insofar as the low back pain is concerned, Drs. McGraw, Hill and Adrian
were all in agreement that the Accident either rendered or contributed to the
plaintiff’s symptomatic low back condition.  They agreed, as did Mr. Pakulak,
that the key issue related to the plaintiff’s ability to function in his daily
life activities, particularly at work.  Dr. McGraw’s evidence, which was
essentially confirmed by that of Dr. Hill and Dr. Adrian, was to the effect Mr.
Buttar would experience activity-related pain in his neck, back and right
knee.  The difficulties would be aggravated by prolonged standing, lifting,
bending, kneeling and the frequent use of stairs.

[22]        
It was also Dr. McGraw and Dr. Hill’s opinion that it was not the
plaintiff’s occasional neck difficulties which were interfering in his ability
to work.  Rather it was the low back pain and the knee.  Dr. McGraw was of the
view it was possible but by no means certain that Mr. Buttar’s pre-Accident
lower back condition would have affected his functioning in the future even if
the Accident had not occurred.  Dr. Hill was of the opinion it would have
affected his functioning to some degree.

IV       FACTORS TO BE INVOLVED IN
ASSESSING THE PLAINTIFF’S           EVIDENCE

[23]        
The medical evidence and, to an extent Mr. Pakulak’s opinions, are based
to a significant degree on the history provided to them by Mr. Buttar and his
account with respect to his physical condition prior to the Accident and
thereafter.

[24]        
In a case such as this where there are little, if any, objective
findings except some minor degenerative changes in the neck, back and knee, the
following should be taken into account by the trier of fact:

·      
the assessment of damages in a moderate or moderately severe soft
tissue injury is always difficult because the plaintiffs are usually genuine,
decent people who honestly try to be as objective and 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 Price v. Kostryba (1982), 70 B.C.L.R. 397 at 397 (S.C.);

·      
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 (Price at
399);

·      
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 (Price at 399);

·      
the doctor’s function is to take the patient’s complaints at face
value and offer an opinion based on them.  It is for the court to assess
credibility.  If there is a medical or other reason for the doctor to suspect
the plaintiff’s complaints are not genuine, are inconsistent with the clinical
picture or are inconsistent with the known course of such an injury, the court
must be told of that.  But it is not the doctor’s job to conduct an
investigation beyond the confines of the examining room Edmondson v. Payer,
2011 BCSC 118 at para. 77, aff’d 2012 BCCA 114;

·      
in the absence of objective signs of injury, the court’s reliance
on the medical profession must proceed from the facts it finds, and must seek
congruence between those facts and the advice offered by the medical witnesses
as to the possible medical consequences and the potential duration of the
injuries Fan (Guardian ad litem of) v. Chana, 2009 BCSC
1127 at para. 73;

·      
in a case of this kind care must be taken in reaching conclusions
about injury alleged to have continued long past the expected resolution.  The
task of the court is to assess the assertion in light of the surrounding
circumstances including the medical evidence.  The question is whether that
evidence supported the plaintiff’s assertion and, if not, whether a sound
explanation for discounting it was given Tai v. De Busscher, 2007 BCCA
371 at para. 41.

[25]        
In light of the above, an assessment of the plaintiff’s credibility is
critical:

The test must reasonably subject his story to an examination
of its consistency with the probabilities which surround the currently existing
conditions.  In short, the real test of the truth of the story of a witness in
such a case must be its harmony with the preponderance of the probabilities
which a practical and informed person would readily recognize as reasonable in
that place and in those conditions.

Faryna
v. Chorny, [1952] 2 D.L.R. 354 at 357.

[26]        
The plaintiff submits he testified in a candid and forthright manner. 
The defendant, on the other hand, asserts that Mr. Buttar’s “credibility and
reliability as a witness is not good.  It is submitted he exaggerates the effects
of the MVA.  His evidence should be treated with caution where it is not
corroborated.”

[27]        
The defendant’s position is advanced within the context of acknowledging
that the Accident caused a moderate low back soft tissue injury and a mild knee
injury to the plaintiff.  It also caused less severe neck and shoulder
injuries.

[28]        
In making the findings of fact which are set out below I have taken into
account the following:

·      
the 2005 Accident was not an insignificant event in the
plaintiff’s life.  He was taken by ambulance to hospital, given morphine and a
prescription for Tylenol #3.  He had an X-ray which raised the issue of a
compression fracture.  He underwent physiotherapy treatments and was still on
light duty at work in mid-December 2005 some four months later.  The plaintiff
did mention this accident to a physiotherapist who saw him on December 3,
2008.  He did so within the context of listing three prior accidents, including
the one in 2005.  It would not appear details were either requested or provided
at that time;

·      
the plaintiff did not, however, mention the 2005 Accident or the
effects which it had on him to Dr. McGraw, Dr. Adrian, Dr. Hill or Mr. Pakulak
who all assessed him within the context of this action.  He was clearly given
the opportunity to do so.  Several of the assessors testified they would have
expected him to disclose this information to them;

·      
the plaintiff’s evidence on examination for discovery and to
which he was referred on cross-examination was that he had minor low back pain
prior to the Accident and could not recall when.  When pressed, he testified
that it occurred one or two years before.  The frequency of the pain was “once
or twice” and it occurred three to four days each time.  The documentary
evidence was also to the effect the plaintiff suffered from low back pain in
July 2007, in November 2007 (with back pain and pain in the legs which
warranted an emergency treatment at hospital) and in February 2008.  This last
event was approximately eight and a half months prior to the Accident and resulted
in pain for at least two weeks with radiating symptoms.  This pain was
described by the plaintiff as feeling like an “electric current”.  X-rays were
taken with medication prescribed.  There was also a referral for physiotherapy
although it was the plaintiff’s evidence he did not attend those treatments since
he no longer had the pain;

·      
the plaintiff testified in direct examination that he suffered
“deep pain” after the Accident when performing various activities.  The bending
and kneeling at work aggravated those symptoms.  The low back pain occurred
daily and was constant and “sharp”.  He stated he was always in deep pain when
bending over.  Mr. Buttar was under surveillance in October and November 2011. 
The surveillance did confirm his evidence he was provided with a lift crane in
order to work.  Overall, however, the surveillance did not show the plaintiff
to be in obvious distress or “deep pain”.  On cross-examination, when asked if
he had any comments to make with respect to one of the days he was under
observation at work, the plaintiff responded he could not recall the details
since he was unaware a movie was being made of him that day;

·      
the plaintiff’s explanation as to why he did not disclose the
details of the 2005 Accident to various doctors who assessed him was that he
had completely forgotten about the event until 12 to 14 days prior to the trial
commenced when he had the opportunity to review his family physician’s
records.  That was also his explanation for certain answers which he gave on
examination-for-discovery;

·      
Dr. Johal’s clinical notes are to the effect that by February
2009 the plaintiff was no longer taking any medications.  In March of that year
he indicated he was “generally feeling improved”.  During this timeframe his
physiotherapist noted that Mr. Buttar’s course of pain was apparently
decreasing.  In mid-June 2009 Mr. Buttar reported to Dr. Johal that he was
“back to his usual full-time duties for past two weeks — as a framer”.  Mr.
Buttar’s evidence was to the effect that he was still having problems at work
with heavy lifting;

·      
in June 2011 the plaintiff advised Dr. McGraw that his neck “is
fine now except for sustained driving or watching t.v.”;

·      
in October of 2011 Mr. Buttar stated on examination-for-discovery
that his lower back pain was 65% to 70% improved since prior to the Accident. 
His knee was significantly better;

·      
in October and November 2011 while participating in a rehabilitation
program at Back in Motion he reported improvements in his overall pain
symptoms.  He stated he no longer had pain with his neck when turning or
bending, and his ability to sleep had improved, although he occasionally did
wake up due to pain if he slept on his left side.  He continued to report
increased discomfort in his lower back and knee pain with crouching.  He also
reported he was unable to lift anything heavy but planned to progressively
build up his tolerance.  He had difficulty with sitting and would have pain in
his neck if sitting for periods exceeding 10 minutes.  That was also the case
with pain in the lower back;

·      
the plaintiff’s evidence was that any improvements which he did
note when participating in the Back in Motion rehabilitation program were
restricted to the timeframe when he was actually at the Back in Motion
premises.  He said any improvements dissipated after he left.

V        CONCLUSIONS ON THE EVIDENCE

[29]        
I make the following findings of fact based on my consideration of the
evidence both lay and expert as a whole:

(a)      prior to the Accident the plaintiff had a low back
condition which intermittently interfered with his ability to work as a framer
in the construction industry.  This low back condition resulted from the
physical nature of his work and his pre-Accident history which included the
2005 Accident;

(b)      the plaintiff chose not to disclose the effects of
the 2005 Accident to those specialists who assessed him within the context of
this action.  I do not accept his evidence he only recalled the circumstances
of the 2005 Accident when reviewing records shortly before the trial commenced;

(c)      the plaintiff’s pre-Accident carpel-tunnel syndrome
would have affected his long-term ability to work as a framer but likely to a
very minor degree;

(d)      the plaintiff has minimized his pre-Accident state
of health.  I find that his pre-Accident lower back pain would likely have
affected his long-term ability to work as a framer.  As at the time of the
Accident that would have been at least on one to two occasions a year.  This
would likely have continued as he grew older.  In this regard I accept Dr.
Hill’s evidence.  His opinion on this issue is more consistent with Mr.
Buttar’s actual pre-Accident condition than the opinions of Dr. McGraw or Dr.
Adrian.  Over time I find Mr. Buttar would also have had to reduce his physical
involvement at work to some degree even if the Accident had not occurred;

(e)      the Accident injuries clearly affected the
plaintiff’s “original position”, that is the state of his health and its effect
on his functioning immediately prior to the Accident;

(f)       the Accident injuries have made it more difficult
for the plaintiff to participate in heavy components of his day-to-day
functions.  He has made accommodations, including the use of a work belt,
having access to a crane on certain construction projects in order to avoid
climbing stairs, etc.;

(g)      the plaintiff’s right knee difficulties are entirely
causally related to the Accident;

(h)      the plaintiff has downplayed, to some extent, his
recovery from the Accident injuries.  His statement to Dr. Johal on June 16,
2009 that he was “back to usual full-time duties for the past two weeks as a
framer” is one indication that his condition had improved more significantly
than he was prepared to concede at trial or on examination for discovery.  Notwithstanding
this, I find this particular reference in Dr. Johal’s notes was not intended to
convey a complete recovery from his lower back and knee complaints;

(i)       the surveillance taken of the plaintiff in 2011
generally confirms that the plaintiff’s original position was less compromised
by the Accident than what he asserted at the trial;

(j)       notwithstanding this, the injuries sustained in the
Accident did affect, to some extent, the plaintiff’s ability to take on extra
work after the Accident.  That will continue for some time into the future;

(k)      the plaintiff had made significant recovery from the
effects of the injuries within approximately two years after the Accident.  He
is left, however, with some flare ups to his back and shoulder area, together
with infrequent flare ups to his neck.  These will continue to a minor degree
indefinitely although their effect on his framing business will dissipate with
time.

VI       ASSESSMENT
OF DAMAGES

[30]        
In Dhaliwal v. Tomelden, 2010 BCSC 612, Russell J. stated:

[148]    The role that damages plays is to place the
plaintiff, as much as possible, in his original position. It is not the
obligation of the defendant to put the plaintiff in a better condition than he
was in. As noted in Athey v. Leonati, [1996] 3 S.C.R. 458 at 473-474,
140 D.L.R. (4^th) 235, per Mr. Justice Major: 

The defendant is liable for the injuries caused, even if
they are extreme, but need not compensate the plaintiff for any debilitating
effects of the pre-existing condition which the plaintiff would have
experienced anyway. The defendant is liable for the additional damage but not
for the pre-existing damage. … Likewise, if there is a measurable risk that
the pre-existing condition would have detrimentally affected the plaintiff in
the future, regardless of the defendant’s negligence, then this can be taken
into account in reducing the overall award. … This is consistent with the
general rule that the plaintiff must be returned to the position he would have
been in, with all of its attendant risks and shortcomings, and not a better
position.

[149]    Also, as noted by the Court of Appeal in T.W.N.A.
v. Canada (Ministry of Indian Affairs), 2003 BCCA 670 at para. 28, 22
B.C.L.R. (4th)1:

 [28].
…. a pre-existing condition, whether it is quiescent or active, is part of
the plaintiff’s original position.

The Court goes on, at para. 48, to say:

[48]. …. Whether manifest or not, a weakness inherent in a
plaintiff that might realistically cause or contribute to the loss claimed
regardless of the tort is relevant to the assessment of damages. It is a
contingency that should be accounted for in the award. Moreover, such a
contingency does not have to be proven to a certainty. Rather, it should be
given weight according to its relative likelihood.

[31]        
It is within the context of these legal principles and the findings of
fact I have made that the plaintiff’s damages should be assessed:

(a)      non-pecuniary damages

[32]        
The plaintiff submits the award of general damages should be $85,000. 
The defendant’s position is that an appropriate award under this heading is in
the range of $40,000 to $45,000.

[33]        
Both parties referred to various authorities in support of their
respective positions.

[34]        
I have found that the plaintiff was a hard-working individual.  I have
also concluded he has made a greater recovery from his injuries than he may
believe or say to be the case.  He is left, however, with an ongoing low back
condition which affects his life from a functional perspective to a greater
degree than was the case prior to the Accident.  He also has a minor yet
permanent ongoing injury to his right knee which was entirely caused by the
Accident.

[35]        
While prior legal authorities are useful guides each case must be
decided on its own facts.  In Stapley v. Hejslet, 2006 BCCA 34, the
following factors were set out by the B.C. Court of Appeal:

[46]      The inexhaustive list of common factors cited in Boyd
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] B.C.J. No. 163
(QL), 2005 BCCA 54). 

[36]        
In my view, the plaintiff’s situation is
generally comparable to that described in the authorities such as Randhawa
v. Hwang, 2008 BCSC 435; Driscoll v. Desharnais, 2009 BCSC 306; and Cabrera
v. Sandhu, 2009 BCSC 1321.  They are less serious than those discussed in Bradshaw
v. Matwick, 2009 BCSC 564, and somewhat more serious than those in Singh
v. Shergill, 2010 BCSC 323.

[37]        
Taking into account the plaintiff’s original
position and the measurable risk which I have found the plaintiff’s pre-Accident
condition would have had on his life in any event, I award non-pecuniary
damages of $60,000.

(b)      past loss of earning capacity

[38]        
The defendant, quite properly in my view, accepts
that the plaintiff’s ability to be awarded compensatory damages in his personal
capacity should not be affected by the fact he operated his business through
Avjot.  This is consistent with the principles in Everett v. King (1981),
34 B.C.L.R. 27 (S.C.) and Rowe v. Bobell Express Ltd., 2005 BCCA 141.

[39]        
Claims for damages for past and future loss of
earning capacity are based on the recognition that a plaintiff’s capacity to
earn money was an asset which has been taken away: Rowe at paras. 23
and 24.

[40]        
Furthermore, as was stated in Rowe at
paras. 30 and 31:

. . . a claim for what is often described as "past loss
of income" is actually a claim for loss of earning capacity; that is, a
claim for the loss of the value of the work that the injured plaintiff would
have performed but was unable to perform because of the injury.

Evidence of this value may take many forms. As was said by
Kenneth D. Cooper-Stephenson in Personal Injury Damages in Canada,
2nd ed. (Scarborough, Ont.: Carswell, 1996) at 205-06,

… The essence of the task under this head of damages is to
award compensation for any pecuniary loss which will result from an inability
to work. "Loss of the value of work" is the substance of the claim –
loss of the value of any work the plaintiff would have done but for the
accident but now will be unable to do. The loss framed in this way may be
measured in different ways. Sometimes it will be measured by reference to
the actual earnings the plaintiff would have received; sometimes by a replacement
cost evaluation of tasks which the plaintiff will now be unable to perform;
sometimes by an assessment of reduced company profits; and sometimes by
the amount of secondary income lost, such as shared family income.

[Underlining added in Rowe; other emphasis in
original.]

[41]        
The plaintiff presents two scenarios upon which this head of damages can
be assessed.

[42]        
The first is based on the reports of Mr. Ron Tidball dated January 30,
2012.  Based on Schedule 2 of his report he concludes that the plaintiff’s past
net income loss is approximately $116,000 gross or $95,000 net without considering
the possibility of some losses in 2008.  This is arrived at after considering Avjot’s
pre and post-Accident gross earnings.

[43]        
The second scenario also uses as its starting point Schedule 2 of Mr.
Tidball’s report.  He notes that Avjot’s labour costs as a percentage of gross
revenue increased from 61.5% in 2008, being the year of the Accident, to 73.5%
in 2009 and 78.6% in 2010.  It should be noted that Mr. Tidball was not
provided with any financial information pertaining to 2011.  He was asked to assume
there were no changes between 2010 and 2011.

[44]        
On this analysis the plaintiff submits that he is now only capable of
working approximately 50% of the hours than was the case prior to the Accident,
that is 20 to 35 hours per week as opposed to 50 to 60 hours per week.

[45]        
The plaintiff testified he paid his employees between $14 and $19 per
hour.  Accordingly, it is submitted that if he worked 20 hours less per week at
$20 per hour for 50 weeks, the value of his lost productivity would amount to
$20,000 per year or $1667 per month.  For the years 2009 to 2011 inclusive that
would result in a loss of $60,000.00.  To that should be added various work
which he turned down.  In his written submissions these are summarized as
follows:

a.         Mr.
Harmail Bains offered him two single family houses of 2,400 square feet each
which he was unable to do.  At $6.00 per square foot, the total contract amount
would have been $28,800 (4,800 square feet x $6.00).

b.         Mr.
Ivan Kirpal offered him two single family homes for which he quoted $25,000 to
$27,000 and subsequently called him and turned down the projects.  Total
contract price would have been $52,000 ($26,000 x 2).

c.         Mr.
Harmail Bains offered him two homes in the range of approximately 3,000 – 3,100
which he also turned down.  The contract amount would have been about $36,000
(6,000 square feet x $6.00 per square foot).

d.         Mr.
Bains offered to Mr. Buttar to build his own house which was approximately
5,400 square feet and he turned down that project.  The contract amount would
have been $37,800 (5,400 square feet x $7.00 per square foot)

e.         Mr. Bains offered a 44 unit
townhouse project through his company Westmark Constructions, which Mr. Buttar
declined.  Although Mr. Buttar was unable to take this project, he was able to
mitigate his losses by obtaining another large project, the 18,000 square foot
home on No. 5 Road, in Richmond, BC.

[46]        
It is said the total contract amounts for past lost projects was
$154,600.  His net loss of profitability was approximately 40% or $61,800 based
on Schedule 2 of Mr. Tidball’s report.

[47]        
On this scenario the plaintiff’s gross past loss of earning capacity is
approximately $122,000 which would result in a net past loss of income earning
capacity of approximately $95,000.00.

[48]        
For his part, the defendant raised several points in his written
submissions which included:

37.  In connection with the Plaintiff’s claim for past loss
of income, the defendant notes:

·       
The Plaintiff was not totally disabled for very long after the
MVA.  See argument above regarding credibility/reliability, and degree of
symptoms and disability.

·       
Dr. Johal’s note dated June 16/09 and the Plaintiff’s admission
that he told his GP on that date that he was “Back to usual full time duties
for past 2 weeks — as framer”.  This note does not say that the Plaintiff was
on light duty or that he was having trouble with work or that he was struggling
or unable to continue.

·       
The local housing industry “crashed” badly in 2009.  By some
measures, housing starts in 2009 were at a level of approximately 1/3 of the
previous several years.  It is reasonable to presume that this must have had an
effect on the Plaintiff’s business.

·       
The Plaintiff has not provided any documents, or any other
evidence other than his own, to substantiate his claim that his prices were
unaffected by the 2009 market “crash”.

·       
The plaintiff’s business gross revenue for 2010 was higher than
it was for any of the pre-MVA years.

·       
The Plaintiff has not put into evidence any of his 2011 financial
records or information.

[49]        
Insofar as Mr. Tidball’s opinion is concerned the defendant raises the
following:

·      
he relies on the report of Mr. Tony Volpe.  Reduced to its
essentials Mr. Volpe’s opinion is to the effect that while Mr. Tidball’s report
was a useful starting point there simply was not enough data provided to him to
form any meaningful opinion that Avjot’s alleged loss of profit was causally
related to the injuries the plaintiff sustained in the Accident;

·      
furthermore, Mr. Tidball’s assumption that had the Accident not
occurred Avjot would have earned similar levels of gross profit as it had in
the years prior to the Accident was significantly flawed in that it ignored the
significant decrease in the construction of new residences when the market
“crashed” in 2009.  It also ignored the fact that the plaintiff’s best
customer, Mr. Bains, was essentially leaving the business of constructing
single family dwellings to multi-unit housing;

·      
insofar as the alleged loss of income for 2011 was concerned, Mr.
Tidball’s assumption that the gross profit for 2011 was the same as in 2010 did
not correlate to a similar loss of income for that year.  It was not a
calculation or an assessment of a loss.  It was simply an assumption that there
had been a loss;

·      
Mr. Tidball’s suggestion that increased post-Accident labour
costs as a percentage of gross revenue may be due to the plaintiff’s injuries
and diminished physical capacity was speculative;

·      
prior to the Accident the plaintiff’s main source of business was
Mr. Bains.  Approximately 35% to 40% of Avjot’s income was from this client. 
Mr. Bains’ business was changing prior to the Accident to the point it went
from approximately 80%/20% single family dwellings as opposed to multi-unit
housing, to the reverse.  Accordingly, the defendant submits the plaintiff
effectively lost his main source of business being single family buildings. 
Mr. Bains, who testified at the trial, stated on cross-examination that one
possible reason for the plaintiff not accepting more multi-unit work post-Accident
was because he had a small work crew of five to six people;

·      
the plaintiff did in fact accept three multi-unit projects
between 2001 and 2007, only one of which was in the four years prior to the Accident. 
This could lead to the conclusion that the plaintiff, for business reasons,
preferred to concentrate on single family residences as opposed to multi-unit
housing;

·      
Mr. Volpe had raised the possibility that multi-unit work could
be less profitable since this might involve higher labour costs.

[50]        
I have concluded, with all due respect to both Mr. Tidball and Mr. Volpe,
that I am not particularly assisted by their opinion evidence.  While Mr.
Tidball’s analysis may have provided a useful starting point, there were simply
too many unproven assumptions to establish a causal link between the alleged losses
he outlined in his report and the Accident, with the exception of the lost
opportunities referred to above.  Mr. Volpe’s evidence that multi-unit work
could possibly be less profitable than single family residence work was also
speculative in nature.

[51]        
The evidence is also insufficient, in my view, to prove a past loss of
earning capacity based on the alleged inability to obtain multi-unit framing
projects.

[52]        
And yet there is some credible evidence upon which I can conclude that
the plaintiff has established a past loss of earning capacity.

[53]        
Mr. Bains testified as to certain projects which he offered the
plaintiff which were turned down.  For his part, the plaintiff testified as to
both these and other projects which he did not accept due to the injuries
sustained in the Accident.

[54]        
It was the plaintiff’s evidence that his workforce, pre-Accident, was
five to six employees, including himself.  That was also the case after the
Accident.  With this work crew, however, he did have the ability to accept up
to two additional projects a year which he turned down due to his injuries.

[55]        
Both the plaintiff and Mr. Bains testified as to the plaintiff’s
reputation in the Richmond construction market, that work was available to him
and the like.  Although the plaintiff testified that due to his physical
condition he was only able to work approximately 50% of the hours after the
Accident than before, there was no corroborative evidence led as to which, if
any, of his employees worked longer hours in order to cover the decrease in
what the plaintiff said were his work hours.  The fact the crew remained
essentially the same after the Accident does not assist the plaintiff in this
regard.

[56]        
The only evidence led by the plaintiff on this issue was his own and
that of Mr. Bains.  While Mr. Bains did testify as to his observations
pertaining to the plaintiff’s physical difficulties, these were essentially
made in the first year after the Accident.  After that point in time Mr. Bains’
work responsibilities changed somewhat, such that he did not have the same
opportunity to observe the plaintiff on site.

[57]        
Accordingly, when considering the plaintiff’s assertion that he had to
work drastically reduced hours as a result of the injuries sustained in the
Accident and, as a consequence, his labour costs increased, I must do so within
the context of “its harmony with the preponderance of the probabilities which a
practical and informed person would readily recognize as reasonable in that
place and in those conditions”: Faryna at 357.

[58]        
In light of the findings of fact I have made I do not accept that the
plaintiff’s work hours were reduced to the extent alleged as a result of the
injuries sustained in the Accident.  I do accept that the plaintiff has
established it may have taken Avjot a longer timeframe to complete certain
projects due to the fact he was not able to work at 100% capacity.  This would
then result in Avjot being unable to accept some additional projects during a
given year.  But any work the plaintiff turned down must be viewed within the
context that he had, for many years, a crew of five to six employees, including
himself and there was presumably only so much work they could handle at a given
time.

[59]        
Accordingly, I have concluded the plaintiff’s past loss of earning
capacity should be based on the loss of those projects which he says he turned
down following the Accident and which are summarized at p.16, paragraph 45
above.  This would result in a net past loss of earning capacity of approximately
$62,000.

(c)      loss of future earning capacity

[60]        
The applicable legal principles for this head of damages were recently
summarized in Parker v. Lemmon, 2012 BCSC 27:

 [42]  The approach to such claims is well set out in
the decision of Garson J.A. in Perren v. Lalari, 2010 BCCA 140
at paras. 25-32, which I summarize as follows: 

(1)           
A plaintiff must first prove there is a real and substantial possibility of a
future event leading to an income loss before the Court will embark on an
assessment of the loss; 

(2)           
A future or hypothetical possibility will be taken into consideration as long
as it is a real and substantial possibility and not mere speculation;

(3)           
A plaintiff may be able to prove that there is a substantial possibility of a
future income loss despite having returned to his or her employment;

(4)           
An inability to perform an occupation that is not a realistic alternative
occupation is not proof of a future loss;

(5)           
It is not the loss of earnings but rather the loss of earning capacity for
which compensation must be made;

(6)           
If the plaintiff discharges the burden of proof, then there must be
quantification of that loss;

(7)           
Two available methods of quantifying the loss are (a) an earnings approach or
(b) a capital asset approach;

(8)           
An earnings approach will be more useful when the loss is more easily
measurable;

(9)           
The capital asset approach will be more useful when the loss is not easily
measurable.

[61]        
The plaintiff submits that whether the capital asset or earnings
approach is used, taking into account a variety of positive and negative contingencies,
a fair award under this heading would be $250,000.

[62]        
For his part, the defendant accepts the plaintiff has established
entitlement to damages under this heading but submits they should be modest, in
the $40,000 to $50,000 range in that:

·      
there was a measurable risk the plaintiff’s pre-Accident original
condition would have affected his work capacity in any event at some
unspecified time in the future.  The heavy physical labour component of his
work would also have affected his ability to earn an income but for the Accident;

·      
although there were some ongoing complaints which the plaintiff
had and which were attributable to the Accident, Mr. Buttar had made a better
recovery than what he testified to at the trial.

[63]        
The quantification of damages under this heading is an assessment, not a
mathematical calculation.  In my view the appropriate way to quantify the
plaintiff’s damages is to generally adopt the same approach for losses from
2012 onwards as was the case for the years 2008 post-Accident to 2011.  The
plaintiff’s damages for loss of future economic capacity should be based on his
declining to accept certain projects in a given year for a reasonable period of
time.

[64]        
In arriving at an amount which I conclude is fair to both parties I have
considered the following:

·      
the plaintiff’s original position and my conclusion that, but for
the Accident, it would have had an impact on the plaintiff’s functioning to
some degree in any event;

·      
the plaintiff’s actual as opposed to perceived course of recovery
from his injuries;

·      
an important component of the plaintiff’s job functions is to
acquire new business and to supervise his work crew.  As he grows older it would
be expected that regardless of the Accident his physical involvement in his
framing business would have lessened to some extent with a correlative increase
in less physically demanding functions;

·      
the lack of documentary evidence regarding Avjot’s business
operations for 2011.

[65]        
In relation to the plaintiff’s claim for past loss of earning capacity,
which occurred over an approximately three year timeframe I concluded $62,000
represented an appropriate assessment of damages.  Utilizing the same
methodology and for a similar timeframe in the future I assess damages for loss
of future earning capacity at $65,000.

(d)      cost of future care

[66]        
The plaintiff seeks damages of $16,000 under this heading.  It is based
on the premise that Mr. Buttar currently attends Watermania Gym two to three
times per week with a gym pass costing $65 per month.  Furthermore he requires non-prescription
medication on an infrequent basis.

[67]        
There was no evidence upon which I can make an award for future care
costs.  The plaintiff, due to the physical component of his work had a regular
exercise program which included Watermania prior to the Accident.  Furthermore,
there was no evidence except from the plaintiff that modest amounts of non-prescription
pain medication were required from time to time.

[68]        
It is for the plaintiff to satisfy the onus to provide medical
justification for his claim for future care costs causally related to the
Accident. Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 83-84 (S.C.)
aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.).  In my view he has not done so.

(e)      special damages

[69]        
These are agreed to in the amount of $462.48.

VII      SUMMARY OF DAMAGES

[70]        
I award the plaintiff the following:

[71]        
In addition there will be court order interest pursuant to the Court
Order Interest Act, R.S.B.C. 1996 c.79, on the past loss of earning
capacity from October 24, 2008, to date, and on the award for special damages.

[72]        
The plaintiff shall have the costs of the action at Scale B unless there
are factors which may impact the question of costs.  If such is the case either
counsel has liberty to apply to speak to the matter of costs.

 “Abrioux
J.”