IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120522

Docket: M083687

Registry:
Vancouver

Between:

Sukhjit Sooch

Plaintiff

And

Terrance Bradley
Snell

Defendant

Before: The Honourable Madam
Justice Ballance

Reasons for Judgment

Introduction

[1]            
The plaintiff, Sukhjit Sooch, was injured in a motor vehicle accident in
Kelowna, British Columbia on October 6, 2006 (the “Accident”).

[2]            
Liability has been admitted.  This action concerns Mr. Sooch’s entitlement
to and the quantum of the various heads of damages he claims.

Background

[3]            
Mr. Sooch is an educated man.  He immigrated to Canada from India
in the mid-1990s, and eventually settled in Kelowna.  He testified with the
assistance of a Punjabi interpreter.

[4]            
From 1995 until 2005, Mr. Sooch worked as a full-time general
labourer at Majestic Mattress (“Majestic”) in Kelowna.  While working there, he
obtained his Class 4 driver’s licence, and later his chauffeur’s permit,
and in 2002 he began to drive a taxi on the weekends and his days off.

[5]            
In 2003, Mr. Sooch left his position at Majestic in order to work
full time for Kelowna Cabs.  He leased a full shift from a taxicab owner.  Under
that arrangement, he paid lease and dispatch fees, plus gas and all maintenance
costs, and split the gross revenue equally with the owner.

[6]            
In January 2006, Mr. Sooch took an extended trip of five to six
months duration to India.  Shortly after his return, in June 2006, he purchased
a partial share in a Kelowna Cabs taxi.  The purchase price was approximately
$100,000.  There was no evidence as to how he financed that acquisition.

[7]            
I accept that as a taxi owner Mr. Sooch typically worked six and
sometimes seven days per week for ten hours each shift.

[8]            
Mr. Sooch had enjoyed his new ownership status for approximately
three months when the Accident happened.

[9]            
At approximately 10:00 p.m. on October 6, 2006, Mr. Sooch was
driving his taxi southbound along Gordon Drive, heading towards
Highway 97.  While exiting a shopping mall, the defendant made an
unauthorized left turn onto Gordon Drive and struck the driver’s side of Mr. Sooch’s
vehicle.  The point of impact was close to where Mr. Sooch was seated. 
The collision propelled Mr. Sooch’s vehicle over the center concrete
median and onto the lawn of an apartment building.

[10]        
I accept Mr. Sooch’s evidence that the impact felt hard and caused
the left side of his head and upper body, including his left shoulder area, to slam
against the window with force.

[11]        
At the scene, Mr. Sooch was in a state of anxiety and shock and, for
a fleeting period, was disoriented.  He was able to drive home, but was not fit
to complete the remainder of his shift.  That evening, Mr. Sooch felt a
stiffness and tightness take hold in his muscles.  He took a Tylenol and went
to bed.

[12]        
At trial, Mr. Sooch presented as a quiet and soft-spoken man of few
words.  He displayed a reserved, even shy, demeanour.  He testified about his
initial injuries, the progression of the symptoms which he attributes to the
Accident, and the treatments he received in respect of them.  For the most
part, his evidence was not meaningfully challenged on cross-examination.

[13]        
Mr. Sooch explained that the morning after the Accident, he experienced
extremely sharp headache pain which originated from the base of his neck and travelled
to the top of his head.  He had light, but persistent, discomfort on the left
side of his jaw.  His left upper shoulder and neck area were tight and produced
a painful ache.  Within two to three days he had developed symptoms radiating
down his left arm into his forearm.

[14]        
Mr. Sooch tried to manage his discomfort by taking regular Tylenol and
hot baths.  In the early days, he remained optimistic that his symptoms would dissipate
in the short term.  However, when they had not abated six days after the
Accident, Mr. Sooch decided to consult a doctor.  His regular family
doctor, Dr. Sharma, had treated Mr. Sooch for an array of complaints
over the preceding five years or so, including depression, anxiety,
work-related injuries, and a prior motor vehicle accident.  His practice was
located in Vernon, B.C.

[15]        
Mr. Sooch testified that due to his physical discomfort, he was not
inclined to drive all the way to Vernon to see Dr. Sharma.  Instead, he
scheduled an appointment with Dr. Lange, who worked at a local medical
clinic where Mr. Sooch had periodically attended in the past.  Dr. Lange
did not work at that clinic on a full-time basis.  I accept that when Mr. Sooch
scheduled the appointment, he had to wait another four to five days before he
was able to get in to see Dr. Lange.

[16]        
Mr. Sooch was examined by Dr. Lange on October 18, 2006. 
During that session, he complained of pain on the left side of his shoulder and
neck and left arm numbness.  Dr. Lange did not record any lower back
discomfort during that visit.  I accept Mr. Sooch’s testimony that he
may not have mentioned his mild low back symptoms even though he was
experiencing them, because his left neck and shoulder pain was far more
significant.

[17]        
Mr. Sooch returned to Dr. Lange for four subsequent visits
over the course of the ensuing two and one-half months.  Dr. Lange advised
Mr. Sooch to take time off from work.  Mr. Sooch followed that advice
and stayed off work for a week or ten days.  Dr. Lange prescribed an
anti-inflammatory and various pain medications, including Tylenol 3 and
gabapentin.  He also referred Mr. Sooch to physiotherapy and massage
therapy.  The symptoms that Mr. Sooch reported to the physiotherapist
during his initial assessment on October 25, 2006 and thereafter are
consistent with those that he relayed to Dr. Lange from time to time.

[18]        
The evidence establishes that in the aftermath of the Accident, Mr. Sooch
felt a slight pain in his lower back on an ongoing basis until around January
2007.  In addition, he regularly suffered from fairly severe headaches which
typically persisted for two to three hours at a time and occasionally up to
four hours a spell.  His most problematic symptoms were what he described as his
persistent neck pain and intense pain in his left shoulder area, which
sometimes radiated down his left arm.

[19]        
Between October 25, 2006 and January 8, 2007 Mr. Sooch
attended approximately 18 physiotherapy sessions and occasionally tried
intramuscular stimulation acupuncture.  The treatments only relieved his pain
temporarily.  He tried massage therapy, but found that it aggravated his
symptoms.

[20]        
Mr. Sooch went to India from January 11 to March 13, 2007
to visit his ailing mother-in-law.  I accept his evidence that while there he
received medical treatment two or three times for his neck and shoulder
discomfort, and was seen by a physiotherapist.  His symptoms did not abate
appreciably in that time frame.

[21]        
After he returned from India, Mr. Sooch continued to attend
physiotherapy regularly, which brought him some symptom relief.  The
physiotherapist taught him certain stretches and exercises to help reduce his
pain.  I find that Mr. Sooch was reasonably committed to performing them,
and that they did provide him some pain relief.

[22]        
Throughout 2007, Mr. Sooch was seen by Dr. Lange nearly
monthly, almost exclusively regarding his ongoing soft tissue injuries,
particularly complaints of pain in his neck and left shoulder region.  Dr. Lange
continued to prescribe various medications to help alleviate his pain, and from
time to time renewed his antidepressant medication.

[23]        
The evidence indicates that the physical demands of operating a taxi often
exacerbated Mr. Sooch’s discomfort.  Certain physical postures and
activities, especially prolonged sitting and heavy lifting, were especially
aggravating.

[24]        
In December 2007, Dr. Lange referred Mr. Sooch to Dr. John
Coghlan, a physiatrist, to investigate his persistent neck and left shoulder symptoms,
his radiating arm tingling, and the sensory disturbances in his left hand that had
begun to surface.  Mr. Sooch testified, and I accept, that he followed Dr. Coghlan’s
advice to continue performing his stretching exercises and attending physiotherapy. 
Dr. Coghlan was not called as a witness at trial.

[25]        
Mr. Sooch’s wife, Hardeep Gill, credibly testified about the
difficulties her husband encountered trying to get a good night’s sleep in the
months following the Accident.  She talked about how he would wake up in the
middle of the night in considerable pain and would often take a hot shower for
relief.  Ms. Gill testified that sometimes she would massage his neck and
upper back area to help him fall back to sleep.  She also supported her husband’s
evidence that he occasionally missed time from work, and was unable to complete
shifts because of his pain.

[26]        
For several years before the Accident, Mr. Sooch grappled with
anxiety and some degree of depression.  In his evidence in chief, he testified
that his depression was a seasonal mood disorder that manifested in the winter
time.  In cross-examination, Mr. Sooch allowed that sometimes his
depressive symptoms had manifested in the summer months as well.  His medical
and PharmaNet records paint a slightly more complex pre-Accident picture of his
condition.  That evidence shows that Mr. Sooch’s depression is cyclical in
the sense that he would enjoy months and even years with few or no symptoms,
and then endure a bout that persisted for a year or more and spanned all
seasons.

[27]        
In the nine months leading up to the Accident, Mr. Sooch’s
depression had been on a notable rise.  He consulted Dr. Sharma about his
depression and anxiety on four occasions, and filled prescriptions once or
twice per month, right up to the very morning of the Accident, at which time
his medication for depression was refilled for another three months.

[28]        
Mr. Sooch is not asserting that his depression was exacerbated by
the Accident.  As will be seen from the medical evidence, his depression is a
relevant factor with respect to the chronicity of his physical symptoms.

[29]        
Mr. Sooch’s physical symptoms generally improved throughout 2008.  By
March, the frequency and severity of his headaches had lessened significantly. 
His minor jaw discomfort, which had started to improve in mid-2007, continued
to decrease.  According to Mr. Sooch, his neck pain had been incessant and
extremely sharp until March 2008.  He classified the intensity of it as falling
between nine and ten on a ten-point scale.  In early 2008, the frequency and
degree of that pain dissipated slightly.  He testified that his left shoulder
pain, which was present at a high level practically daily, started to fluctuate
and abate.  The pain radiating into his left arm likewise improved.

[30]        
Despite this overall improvement, Mr. Sooch testified that his soft
tissue injuries still caused him pain and limited his ability to operate his
taxi on the same full-time basis as before the Accident.

[31]        
In or around February 2008, Mr. Sooch sold his interest in the Kelowna
Cabs taxi.  The sale was motivated by economic considerations unrelated to the
ill-effects of the Accident.  Mr. Sooch enjoyed a small profit of roughly
$7,500 on that transaction.

[32]        
The following month, Mr. Sooch and his family moved to Surrey, B.C.,
where they had a wide circle of friends.  He purchased a 5-ton truck from an
acquaintance and in April 2008 was hired by Rolls Right as a delivery driver, a
job he still holds.

[33]        
Pursuant to the dispatcher’s daily instructions, Mr. Sooch delivers
an array of food items, stationery and other paper items to businesses
throughout the Lower Mainland.  He explained that the delivery loads are
sometimes heavy, necessitating the use of a dolly or forklift to transport them. 
He also often has to reposition a heavy skid to the back of his truck in order
to unload and deliver the merchandise.  Some businesses have proper loading
docks with employees who unload the goods.  At less well-equipped facilities, Mr. Sooch
is required to unload and carry the boxes one-by-one.

[34]        
After he moved to Surrey, Mr. Sooch consulted physicians at one or
more walk-in clinics.  He frequently filled prescriptions for medication for
his depressed and anxious mood.

[35]        
In November 2008, Dr. Paul Mendoza became Mr. Sooch’s family
doctor.  His clinical records show that Mr. Sooch consulted him on average
of every two months or so over a period of 19 months.  During those visits
Mr. Sooch routinely reported soft tissue pain and discomfort, as well as
ongoing depression and anxiety.  Dr. Mendoza prescribed medication for
both his physical symptoms and depressed mood.

[36]        
Mr. Sooch’s physical symptoms continued to improve into 2009.  By
March, his jaw pain had subsided significantly and eventually resolved.  Within
the same time frame, his headaches manifested much less frequently, were not
intense, and lasted twenty minutes at most.  He testified that his neck pain
was still present “all the time”, but in the year leading up to trial, it had
plateaued at an intensity of between five and six on a ten-point scale.
Mr. Sooch testified that although still “constant”, the pain in his left
shoulder and into his left arm followed a similar course of improvement.

[37]        
Mr. Sooch explained that all of his physical symptoms, and
particularly those related to his neck and left shoulder, remained prone to
being aggravated by certain physical postures, movements, and work activities.

[38]        
In January 2010, Mr. Sooch and his wife took another holiday to
India, where they spent approximately two and one-half months.  Mr. Sooch
testified that while there his neck and shoulder symptoms remained the same and
did not improve when he returned to work in March.

[39]        
While at work on November 22, 2010, a skid fell onto three of Mr. Sooch’s
fingers on his left hand.  He has been unable to work since then.  At trial, he
reported that two of those fingers had fully recovered and that the
difficulties he encountered with his third damaged finger were expected to
resolve within two to three weeks, at which time he planned to return to work. 
There is no cogent evidence to show that this workplace injury adversely
affected his chronic neck or left shoulder pain or the arm discomfort that he
attributes to the Accident.

Previous Injuries

(i) Motor Vehicle Accident
– 1995

[40]        
In 1995, Mr. Sooch fractured two ribs in a motor vehicle accident. 
There was no evidence that this accident resulted in any injury to his neck,
shoulder or low back.  I am satisfied that the symptoms it caused fully
resolved years before the Accident.

(ii) Workplace Injuries –
2000 and 2001

[41]        
There was evidence that Mr. Sooch claimed workers’ compensation
benefits on or about March 29, 2000, for a slip at work which injured his
lower and middle back.

[42]        
The following year, on January 16, 2001, Mr. Sooch fell and
strained his left shoulder/trapezius area while at work.  He took a few days
off and attended physiotherapy.  There is reference in the medical records to
continuing discomfort in that area for several months.  Mr. Sooch
testified that the neck and back symptoms triggered by that fall bothered him
periodically until March 2001.

[43]        
There is evidence that in November 2001, Mr. Sooch made a claim for
workers’ compensation benefits in respect of what appears to be an injury
sustained to his right shoulder girdle/right upper back area.

[44]        
Mr. Sooch testified that all of these workplace injuries had
resolved years before the Accident.  There is no cogent evidence to suggest
otherwise.

(iii) Motor Vehicle Accident
– 2003

[45]        
On March 21, 2003, Mr. Sooch injured his neck and thoracic
spine in a motor vehicle accident.  His soft tissue symptoms appeared to
persist for a number of weeks; however, there is no indication that he missed
much, if any, work due to those injuries.  The preponderance of the evidence
indicates that the injuries stemming from this accident soon resolved and that
he was asymptomatic for roughly two and one-half years before the Accident.

The Experts

(1) Dr. Paul Mendoza

[46]        
Dr. Mendoza last saw Mr. Sooch on May 18, 2010.  His
expert report dated February 7, 2011, was in evidence.  In his opinion, Mr. Sooch
suffers from ongoing myofascial musculoskeletal pain that remains “quite
limiting” with respect to vocational issues.  Dr. Mendoza explained, and I
accept, that musculoskeletal pain can cause functional difficulties that will
not show on objective testing.  In Dr. Mendoza’s view, Mr. Sooch’s
post-Accident mood disorder is more constant than it was beforehand, and had
worsened overall.  In arriving at his opinion, Dr. Mendoza accepted Mr. Sooch’s
characterization of his depression as a “seasonal, winter blues” type of
condition.  As mentioned earlier, the evidence indicates that the variable
manifestations of Mr. Sooch’s depressed mood were not always confined to
the winter months, and in the nine months preceding the Accident, it was an
active condition necessitating numerous medical appointments and medication on
a consistent basis.  In any case, in Dr. Mendoza’s opinion, the major
reason for Mr. Sooch’s impaired function was his chronic soft tissue
injury, and not his low mood.

[47]        
Based on the fact that Mr. Sooch’s physical symptoms had not
improved significantly since Dr. Mendoza began treating him in late 2008,
and given that the medical records predating his involvement indicated little
improvement, Dr. Mendoza believes that Mr. Sooch will likely have a
permanent functional limitation.

(2) Dr. Theo
van Rijn

[48]        
Dr. van Rijn is a specialist in the area of physical medicine
and rehabilitation.  He conducted an assessment of Mr. Sooch for
approximately two hours on March 12, 2009; his expert report of the same
day was in evidence.

[49]        
Dr. van Rijn was confident that Mr. Sooch had sustained
multiple musculoskeletal injuries, including injuries to his neck, left
shoulder and left arm, as a result of the Accident.  In his view, the medical
records establish that Mr. Sooch’s 2001 left shoulder injury and complaint
of neck pain was transitory and that those symptoms, as well as his symptoms
related to the 2003 motor vehicle accident, had fully settled long before the
Accident.

[50]        
Premised on the footing that Mr. Sooch did not have any lasting pre-Accident
difficulties with respect to his neck, left shoulder or arm, and had been asymptomatic
for approximately two and one-half years before the Accident, Dr. van Rijn
opined that the Accident was most likely responsible for Mr. Sooch’s residual
discomfort in the left side of his neck and left shoulder girdle.  He confirmed
that neck pain can radiate down the arm causing sensation changes in the
forearm and hand along the lines experienced by Mr. Sooch, and that the
Accident was likely the cause of those symptoms as well.

[51]        
Notably, Dr. van Rijn explained that there are always
individuals whose soft tissue symptoms do not improve in accordance with the
expected timeline derived from general statistics.  He wrote that, in general,
the longer one experiences such complaints after a motor vehicle accident, the
less likely it is that a full recovery will occur.  He also observed that
chronic pain can contribute to depressed mood and lead to social dysfunction.

[52]        
Dr. van Rijn did not find it surprising that Mr. Sooch
reported difficulty working as a taxi cab driver and driving a delivery truck. 
Referring to Mr. Sooch’s reports of ongoing pain and other
Accident-related complaints and limitations, he concluded that they are likely
consistent with a permanent disability.

[53]        
In terms of Mr. Sooch’s future care needs, Dr. van Rijn
suggested:  assistance for heavier and/or more seasonally demanding homemaking
tasks; medication to help control his physical complaints and mood dysfunction;
another course of IMS acupuncture; and psychological counselling with a
counsellor who speaks his dialect and can assist with the management of chronic
pain.

(3) Dr. Keith Christian

[54]        
Dr. Christian retired from his practice as an orthopaedic surgeon
in 2005.  Since then, he has focussed his practice on disability evaluation.

[55]        
Dr. Christian conducted an independent medical examination of Mr. Sooch
on March 18, 2010.  He spent between 45 and 55 minutes assessing Mr. Sooch. 
He did not keep detailed notes, preferring instead to occasionally jot down a
point or two and then dictate his findings and opinion immediately after the
examination.

[56]        
Dr. Christian’s findings with respect to Mr. Sooch’s symptoms
in his neck, left shoulder area, and trapezius/upper back region were
consistent with those made by Dr. van Rijn.  He diagnosed soft tissue
pain in Mr. Sooch’s neck and left shoulder that was myofascial in origin.

[57]        
As mentioned, Mr. Sooch had been seen at Dr. Lange’s medical
clinic on the day of the Accident, but before the Accident happened.  Dr. Christian
was under the erroneous impression that Mr. Sooch’s appointment on
October 6 had taken place after the Accident occurred.  In his
report, he made a point of commenting that Mr. Sooch had not complained of
neck pain or other soft tissue discomfort during his appointment on the day of
the Accident.  Dr. Christian was further critical that Mr. Sooch
waited another week or so after the Accident before he consulted his doctor “again”
for such complaints.  In Dr. Christian’s words:

Of note, from the medical
documentation is that he did not see his doctor for this complaint for a week
or so following the injury.  He did in fact see his doctor on the date of the
injury for another reason and did not appear to have complaints of neck pain at
that time.  It would therefore seem unlikely that there was any direct injury
to the cervical spine or shoulder at the time of injury.  It seems likely that
the motor vehicle accident caused an exacerbation of discomfort from a
pre-existing condition.

[58]        
The appendix prepared by Dr. Christian accompanying his report
contains similar remarks:

The medical documentation from
this gentleman’s family doctor indicates that he was seen by his family doctor
on October 6, 2006 at 6:50 p.m.  It was noted that although this was
the day of the injury in question, he saw his family doctor at that time with
regard to a refill for his antidepressant medication, and there was no mention
of any problems with musculoskeletal symptoms following the motor vehicle
accident which occurred on the same day.

[59]        
The suggested inferences were that had Mr. Sooch’s symptoms been real
and significant, he would have complained about them during his appointment on
the day of the Accident and would have followed up with his doctor sooner than
he did.

[60]        
It is obvious on the face of Dr. Christian’s report that in
reaching his conclusion on causation, he relied heavily on this misconception
as to the timing of Mr. Sooch’s medical appointment on the day of the
Accident.  Yet, after he became aware that Mr. Sooch had actually gone to
the medical clinic some hours before the Accident had taken place, he
denied placing any importance on his mistaken belief.  He insisted that it was
not in his “consciousness”, and was of marginal importance, if any, and
maintained that knowledge of the true state of affairs would not have changed
his opinion one way or another.

[61]        
The unfolding of Dr. Christian’s cross-examination on that and
related matters was uncomfortable to observe.  At times, his demeanour was
combative and the entire exchange on the issue of causation called his impartiality
into question.  Dr. Christian’s responses to other lines of questioning
were also sometimes argumentative and displayed a compromised objectivity.

[62]        
I am not able to credit Dr. Christian’s assertion that his mistaken
impression about the timing of Mr. Sooch’s appointment on the day of the
Accident did not impact his opinion on causation.  It plainly did.  His opinion
also hinged on the fact that Mr. Sooch waited better than a week to
consult Dr. Lange about his Accident-related injuries.  To my mind, Mr. Sooch
gave a completely credible explanation for the time lag between the Accident
and his first appointment with Dr. Lange.

[63]        
Dr. Christian postulated that the Accident had exacerbated “discomfort
from a pre-existing condition”.  In the body of his report, he does not
elaborate on the nature of that condition.  However, in his review of the
medical documents appended to his report, Dr. Christian highlights the
following pre-Accident medical complaints:  (1) Mr. Sooch had been
treated for depression for quite a few years before the Accident; (2) on
January 16, 2001, Mr. Sooch sustained a work-related injury to his
left shoulder, diagnosed as a strain to the left trapezius area; (3) the
records of Mr. Sooch’s family doctor dating back several years record
various musculoskeletal problems with respect to his shoulder and neck;
(4) Mr. Sooch was seen on January 31, 2001, for complaints of
pain on the left side of his neck, and he was unable to work due to that pain;
(5) in November 2001, and “for a few years previously”, Mr. Sooch had
increasing problems with his right shoulder, back and lower back pain;
(6) Mr. Sooch reported left leg pain in February 2003; (7) Mr. Sooch
complained of pain in his central thoracic spine with some tightness in his
back, resulting from a car accident in 2003; (8) Mr. Sooch was seen
in June 2003 for superficial abrasions on his right arm and shoulder; and
(9) in January 2005, he reported paresthesias and weakness of his lower
legs.

[64]        
It is readily apparent from the medical records that Mr. Sooch’s
neck and left shoulder complaints recorded on January 16 and
January 31, 2001, items 2 and 4, concerned the same workplace injury and
were not separate incidences.  In cross-examination, Dr. Christian conceded
that the symptoms he noted in items 6 and 9 had no bearing on the issue.  With
respect to the 2003 motor vehicle accident referred to in item 7, he
agreed there was no indication that Mr. Sooch complained of injury or
discomfort to his neck or left shoulder area.  Dr. Christian’s remark in
item 3 to the effect that the medical records document various problems with Mr. Sooch’s
neck and shoulder implies that over the years Mr. Sooch complained of such
difficulties over and above those that Dr. Christian individually
described.  That was not the case.  In cross-examination, Dr. Christian
agreed that the medical records did not show complaints of soft tissue symptoms
apart from those that he particularized in his report.

[65]        
Further, in his report Dr. Christian elaborated on his frail
supposition that Mr. Sooch may have an underlying medical problem or
pre-existing condition with respect to his neck:

There is also an issue of
previous injury to his neck which he denies and does not recall any symptoms
that he had prior to the accident in question.  However, the medical
documentation would perhaps suggest otherwise.  If he has had a tendency for
neck problems in the past, it would be difficult therefore to say that his
present symptoms are in fact related to the injury of 2006, and not to his
underlying pre-existing condition.

[66]        
I do not interpret this passage as expressing a firm opinion that Mr. Sooch’s
present symptoms stem from a pre-existing neck condition.  Dr. Christian was
careful to say that such a conclusion could be drawn if Mr. Sooch
has had a tendency for neck problems in the past.  In my estimation,
Dr. van Rijn reviewed the pre-Accident medical records with superior
care and accuracy than had Dr. Christian.  In Dr. van Rijn’s view,
there was no demonstrated history of recurrent neck or left shoulder pain or
discomfort, or evidence of an arthritic condition in Mr. Sooch’s neck that
would be expected to independently cause neck discomfort.  He expanded that the
nature of Mr. Sooch’s pre-Accident physical symptoms, the fact that there
was no evidence of ongoing residual effects, and the significant hiatus of time
between the reporting of any neck complaints and the Accident, made it unlikely
that Mr. Sooch had a pre-existing neck or shoulder problem.  In short,
Dr. van Rijn persuasively discounted Dr. Christian’s opinion
that the Accident had merely aggravated an already existing problem in
Mr. Sooch’s neck and shoulder.  I am satisfied that Mr. Sooch did not
have a pre-existing “tendency” for neck problems in the sense intended by Dr. Christian,
or otherwise.

[67]        
The theme of pre-existing injury is also central to Dr. Christian’s
comments concerning Mr. Sooch’s impairment and disability flowing from the
Accident:

I have alluded to the question of
his previous symptoms with regard to his neck and therefore it would be likely
that had this injury not have occurred, he likely would be complaining of some
degree of neck discomfort because of his pre-existing problem.

[68]        
Dr. Christian noted that the period of disability following an
injury of the kind sustained by Mr. Sooch is variable, and that a few
months of reduced capacity would not be unreasonable.  To that, he added the
proviso that although the effects of an exacerbation of symptoms can persist
for some time, it is not usual for the symptoms to be disabling.  Although
Dr. Christian opined that Mr. Sooch’s exacerbated neck pain should
have been short-lived, at the same time he acknowledged that Mr. Sooch’s history
of depression is a complicating factor.  That is because people who suffer from
depression tend to have more difficulty dealing with musculoskeletal pain and
recovering from soft tissue injury, than do individuals without depression.

[69]        
In terms of prognosis, Dr. Christian does not consider it likely
that Mr. Sooch will have any permanent musculoskeletal problems as a
result of the Accident.  In his opinion, continuing physiotherapy would be
counterproductive at this juncture because it would focus “attention on
symptoms”.  In keeping with that perspective, he recommended that Mr. Sooch
“put the memory of this unpleasant event behind him and restore his life to
what it was before the accident”.  He suggested that a graduated return to
increased physical activity would enhance the likelihood of resolving Mr. Sooch’s
symptoms and be better for his mental well-being.  Inferentially, Dr. Christian’s
comments suggest that to some extent it is within Mr. Sooch’s ability to
control his chronic pain and other symptoms simply by refocusing his mind and
moving forward.  Endorsement of such a simplistic “pull up your socks” cliché belies
an astonishingly dismissive attitude of the real and debilitating effects of Mr. Sooch’s
condition.

[70]        
Dr. Christian confirmed that during his examination Mr. Sooch
did not exaggerate his symptoms.  For his part, Dr. van Rijn noted
that Mr. Sooch had no pain mannerisms during his interview.  However, Dr. Christian
formed the impression that Mr. Sooch showed considerable signs of what he
interpreted as “illness behaviour” during the examination.  He also tested
positive for two features of Waddell’s signs of non-organic spinal disease.  Dr. Christian
explained that these findings imply a psychological component to Mr. Sooch’s
chronic pain.  Defence counsel clarified that he was not asking the Court to
put much emphasis on Dr. Christian’s remarks regarding Mr. Sooch’s
purported illness behaviour.  His point was that those observations simply
bolstered his larger submission that the Court must exercise caution in
unreservedly accepting Mr. Sooch’s subjective reporting of his pain and
physical limitations.

[71]        
Based on the criticisms I have already expressed about the lack of
balance in Dr. Christian’s assessment of Mr. Sooch’s pre-Accident
soft tissue complaints, and his refusal to concede that his opinion on
causation was partially fastened to his misunderstanding about the timing of
Mr. Sooch’s medical appointment on the day of the Accident and other
troubling aspects of his testimony, I consider it unsafe for the Court to put
any stock in his opinion.  Having said this, however, I do accept his statement
that individuals suffering from depression can encounter greater difficulty in
overcoming their soft-tissue injuries, and I find that this is true in
Mr. Sooch’s case.

[72]        
A great deal of defence counsel’s closing submissions concentrated on
the reality that Mr. Sooch’s reports of pain were subjective, urging that,
therefore, the Court should approach Mr. Sooch’s testimony concerning the
intensity and duration of his symptoms with caution.  An important feature to
the development of this line of argument was Mr. Sooch’s classification of
his level of pain being at or near to the upper end of a ten-point scale.

[73]        
Defence counsel asserts that the surveillance evidence introduced by the
defence illustrates this point.  Mr. Sooch was surveilled over relatively
short bursts of time between December 12 and December 15, 2007.  He
is captured on video doing activities such as:  bending under the hood of his
taxi with his left hand on the front grille for support; servicing the interior
of his taxicab and using his left arm to reach up and close the garage door;
unloading a passenger’s luggage from the trunk of his taxi; unfolding a
collapsed wheelchair and pulling a passenger backwards in it for a short time;
using his left hand and raising and lowering his left shoulder while operating
a wash wand to clean his taxi; and opening and closing the trunk and the hood
of his cab with his left hand/arm.  The quality of some of the surveillance was
poor.  For example, Mr. Sooch’s activities were sometimes shielded from
view by his taxi in portions of the video gathered on December 12.

[74]        
Mr. Sooch testified that at the time the surveillance was collected
he was experiencing neck pain at a level of nine or ten, and that his shoulder
pain fluctuated “somewhere around” eight to ten.  Counsel for the defendant argues
that Mr. Sooch’s demeanour in the surveillance images and the activities
he is undertaking are inconsistent with a person who is experiencing constant
neck and shoulder pain at the intensities claimed by Mr. Sooch.  Defence
counsel contends that if Mr. Sooch was genuinely suffering pain at those
high levels, his movements would have been slower, more tentative and would have
produced facial expressions consistent with extreme pain, such as wincing.

[75]        
It is perhaps trite, but I think important nonetheless, to observe that
pain is an inherently subjective phenomenon.  The criteria used by individuals to
numerically label the intensity of their pain is not standardized and its
quantification is dependent on the adjectival descriptions they understand to correspond
to each level, as well as any past personal encounters with pain.  At trial, Mr. Sooch
was asked to quantify the intensity of his pain throughout the relevant timeline
by using a pain scale of one to ten, where zero meant no pain, and ten denoted “severe”
pain.  Accordingly, when Mr. Sooch reported his pain as reaching the high
end of that ten-point spectrum, he was quantifying it as severe or approaching severe.
That adjective is open to reasonably wide interpretation and is not
necessarily synonymous with pain that is extreme, unbearable or excruciating,
as defence counsel seemingly presumes, and its intended meaning in this context
was not expanded upon by counsel or Mr. Sooch.

[76]        
In light of the fact that Mr. Sooch was applying a pain scale where
the top measurement of ten reflected severe pain, I do not conclude that his
surveilled activities are inconsistent with the degree of pain that he says he
was then suffering.  Nor do I find his recorded movements incompatible with his
testimony about his physical limitations at the time.  The fact that on one of
those surveillance days Mr. Sooch felt too unwell to attend work because
of his Accident-induced symptoms, but was still able to tinker around servicing
his taxi for 30-40 minutes, is of no moment.  In the end, the probative value
of the surveillance clips in evidence in this case is negligible.

[77]        
The alleged disconnect between the professed severity of Mr. Sooch’s
pain on the one hand, and his activities on the other, threads through other
components of the defendant’s argument.  In this regard, defence counsel points
to the fact that in 2008 Mr. Sooch’s consumption of pain medication began
to taper off at the same time he maintained that he was suffering pain falling
at the mid to higher end of the scale.

[78]        
The evidence shows that before the Accident, Mr. Sooch took
virtually no pain medication.  The PharmaNet records in evidence, which do not
extend beyond March 22, 2009, establish that after the Accident and
beginning with his first appointment with Dr. Lange, Mr. Sooch
required a number of medications, including Tylenol 3, Celebrex, gabapentin,
and muscle relaxants.  Starting in early 2008, he filled significantly fewer
prescriptions for pain medication.  It is reasonable to infer, and indeed is
consistent with Mr. Sooch’s testimony about the progression and
improvement of his physical symptoms, that he did not require the same level of
pharmaceutical intervention from early 2008 onward because his physical
symptoms had begun to improve.  However, on no reasonable interpretation of the
evidence had they settled completely.  He continued to complain of his physical
symptoms to Dr. Lange and other medical practitioners, and several times
between April 2009 and March 2010, Dr. Mendoza prescribed him a muscle
relaxant.  Over time, he was able to largely manage his symptoms with
over-the-counter products.

[79]        
Mr. Sooch’s counsel introduced the pain scale concept in an attempt
to assist Mr. Sooch to explain the degrees of pain he experienced from
time to time.  However, the absence of descriptors of pain (e.g. mild, able to
cope, overwhelming, etc.) correlating to the numbers on the scale, other than
ten, which was said to be equivalent to severe, and the lack of clarity in the
evidence as to what Mr. Sooch understood the numeric ratings, other than
zero and ten, to mean, undermined the utility of that approach and, with it,
defence counsel’s argument based upon it.  Accordingly, I do not accede to the
defendant’s argument that Mr. Sooch’s scaled back consumption of pain
medication contradicts his testimony about the severity of the pain that he was
suffering at that, or any other stage.

[80]        
Defence counsel asserts that two discrete entries in the medical records
further illustrate the danger of overly relying on Mr. Sooch’s subjective
complaints of pain.  One of the entries appears in Dr. Coghlan’s
electromyography report of December 17, 2007, where he writes that Mr. Sooch’s
symptoms have continued “intermittently” and that the pain is “intermittent”. 
When cross-examined as to whether Mr. Sooch had described his symptoms to Dr. Coghlan
as intermittent, Mr. Sooch asked “the symptoms for what?”.  It was a responsive
question, because elsewhere in Dr. Coghlan’s report he had characterized
Mr. Sooch’s left-sided neck pain as persistent.  An objection was taken by
Mr. Sooch’s counsel and a discussion between counsel and the court
ensued.  When Mr. Sooch’s cross-examination continued, it was never
satisfactorily clarified precisely what symptoms Mr. Sooch had told
Dr. Coghlan were intermittent.  The other entry the defendant says is of
concern is to the effect that in January 2011, Mr. Sooch described himself
as “otherwise healthy” to a worker’s compensation surgeon who examined his
injured hand and fingers.  The defendant contends that Mr. Sooch’s
self-description is inconsistent with his other evidence as to the evolution of
his symptoms.  I do not see it that way.  In this regard, the comments of Mr. Justice
Myers in Mayenburg v. Lu, 2009 BCSC 1308, at paras 36‑37 are
apposite:

[36]   The defendants challenge the credibility of Ms. Mayenburg. 
They point to the limited number of times she visited physicians to complain
about her pain.  They also refer to the fact that she did not raise the issue
of her injuries when she visited Dr. Ducholke on several occasions for
other unrelated matters.

[37]   I do not accept those
submissions, which have been made and rejected in several other cases:  see Myers
v. Leng, 2006 BCSC 1582 and Travis v. Kwon, 2009 BCSC 63.  Ms. Mayenburg
is to be commended for getting on with her life, rather than seeing physicians
in an attempt to build a record for this litigation.  Furthermore, I fail to
see how a plaintiff-patient who sees a doctor for something unrelated to an
accident can be faulted for not complaining about the accident-related injuries
at the same time.  Dr. Ducholke testified how her time with patients was
limited.

[81]        
Also instructive are Mr. Justice N. Smith’s insightful remarks in Edmonson
v. Payer, 2011 BCSC 118 [Edmonson] at para. 37, in relevant
part:

… There certainly may be cases
where a plaintiff’s description of his or her symptoms is clearly inconsistent
with a failure to seek medical attention, permitting the Court to draw adverse
conclusions about the plaintiff’s credibility.  But a plaintiff whose condition
neither deteriorates nor improves is not obligated to constantly bother busy
doctors with reports that nothing has changed, particularly if the plaintiff
has no reason to expect the doctors will be able to offer any new or different
treatment.  Similarly, a plaintiff who seeks medical attention for unrelated
conditions is not obliged to recount the history of the accident and resulting
injury to a doctor who has not been asked to treat that injury and has no reason
to be interested in it.

[82]        
More to the point, the preponderance of the evidence indicates that
Mr. Sooch’s residual neck, shoulder and arm symptoms caused by the
Accident were not resolved when he met with the hand surgeon.

[83]        
Defence counsel suggests that the Accident was a relatively minor one
because there was only approximately $2,300 worth of damage done to Mr. Sooch’s
vehicle, implying that the injuries sustained by Mr. Sooch must therefore
be minor as well.  The proposition that where structural damage to a metal
machine is minor, it follows that the damage to the human body inside of the
machine must also be minor, is little more than a fallacy:  (see, generally, Gordon
v. Palmer (1993), 87 B.C.L.R. (2d) 236).  Cloaking that hypothetical as a
fact or as a reasonable inference in the absence of supporting medical evidence
is distracting and unhelpful to the Court.  There was no evidence that the
force of the impact in this case could not have produced the physical symptoms
complained of by Mr. Sooch, or that their nature, severity or long-lasting
duration are inconsistent with it.  In any event, leaving aside the financial
cost of the repairs to Mr. Sooch’s vehicle, I accept his evidence that, as
far as his body was concerned, the collision felt like a hard and forceful
impact.

[84]        
There is no question that Mr. Sooch has proved on a balance of
probabilities that he would not have experienced the constellation of physical
symptoms implicating his lower back, jaw, neck, left shoulder area and left
arm, and causing him headaches, but for the Accident: Athey v. Leonati,
[1996] 3 S.C.R. 458; Blackwater v. Plint, 2005 SCC 58, [2005] 3
S.C.R. 3; Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] S.C.R.
333.  Indeed, the defendant concedes that the Accident caused Mr. Sooch
soft tissue damage, myofascial type pain and suffering of a mild to moderate
degree, and recognizes that he deserves fair compensation for those injuries.  The
principal controversies surround the question of damages.  Put more narrowly,
the severity and duration of Mr. Sooch’s symptoms and their impact, if
any, on his enjoyment of life and capacity to work.

Damages

Non-Pecuniary Damages

[85]        
Non-pecuniary damages are intended to compensate a plaintiff for the
pain, suffering and loss of enjoyment of life and of amenities experienced as a
result of the defendant’s negligent actions.  They are meant to compensate for
the damages suffered to the date of trial and those that the plaintiff will
suffer in to the future.  The essential principle, expressed in a variety of
ways, is that the fairness and reasonableness of such an award is measured against
the adverse impact of the particular injuries on the particular individual
plaintiff.  Consequently, while fairness is assessed by reference to awards
made in comparable cases, it is “impossible to develop a tariff”; each case must
be decided on its own unique facts.  The process is one of assessment and is
not amenable to mathematical precision: Drodge v. Kozak, 2011 BCSC 1316
[Drodge]; Trites v. Penner, 2010 BCSC 882; Lindal v. Lindal,
[1981] 2 S.C.R. 629.

[86]        
In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, Kirkpatrick J.A.
enumerated a non-exhaustive list of factors to be considered in awarding
damages under this head.  They include: the plaintiff’s age; the nature of the
injury; the severity and duration of the pain; disability; emotional suffering;
loss or impairment of life; impairment of family, marital and social
relationships; impairment of physical and mental abilities, loss of lifestyle
and the plaintiff’s stoicism.

[87]        
Earlier in my Reasons, I summarized the evidence regarding the progression
of Mr. Sooch’s symptoms.  Mr. Sooch testified that at the time of
trial, he experiences headaches only occasionally.  He says that the most
persistent and disabling after-effects of the Accident by far are his neck and
left shoulder symptoms, which at times implicate his left arm.  According to
Mr. Sooch, he has suffered those injuries with varying intensity and frequency
for close to four and one-half years.  He says that he continues to experience
those symptoms with some regularity, although the frequency and intensity have
diminished considerably.  Ms. Gill’s testimony corroborates his evidence.

[88]        
I accept Mr. Sooch’s evidence about the progression of his symptoms
and their status at present.  There is no cogent evidence that he has a
relevant pre-existing physical condition.

[89]        
The preponderance of the evidence demonstrates that, despite the current
lower intensity of Mr. Sooch’s pain and the reduced frequency of its
occurrence, his neck and shoulder symptoms, though significantly better, have
not resolved and are chronic.  He is prone to episodic flares in consequence of
a variety of common place physical postures which are not solely confined to his
work tasks.  Applying the scale that Mr. Sooch was asked to use where ten
is equivalent to severe pain, in light of the whole of the evidence I interpret
his testimony quantifying the pain that he periodically experiences with
respect to his unsettled residual symptoms as fluctuating between mild and
moderate.  By and large, he is able to manage and tolerate his symptoms with
non-prescription medication and by being cautious in his movement.  There was
some relatively vague evidence that Mr. Sooch also finds relief from physiotherapy
which he attends on an “as needed” and seemingly infrequent basis.

[90]        
Mr. Sooch was 33 years old at the time of the Accident.  He and his
wife have one young child, a daughter.  She is the light of her parents’
lives.  Since becoming a father in September 2004, Mr. Sooch’s interaction
and outings with his family, including attending temple every week, have formed
the main focus of his recreational and social life.  Mr. Sooch finds it
difficult to pick up his daughter, to take her to the park, to play with her
and to care for her as before.  Both he and his wife credibly testified that
Mr. Sooch’s physical interaction with their daughter has been negatively
affected as a result of his injuries, and was significantly compromised during
the initial 18 months or so following the Accident when he focused a great
deal of this time and attention on trying to relieve his pain.

[91]        
Ms. Gill lamented that after the Accident, her husband was not able
to partake in their weekly “date nights”, where they would leave their daughter
with family and spend time together, seeing a movie or having fun at a local
amusement park.  That unwelcome change in their relationship has caused
strain.  She also noted that her husband has not been able to play golf, which
he had enjoyed doing about once a month before the Accident.  As well, he finds
it uncomfortable to sit on the floor at temple each week.

[92]        
Mr. Sooch performed some household chores around the home before
the Accident.  However, he worked long hours and his busy schedule did not
leave a lot of time for domestic work.  He was responsible for mowing the lawn,
vacuuming and cleaning the bathtubs once or twice a week.  While living on
their Kelowna property, he also pruned and maintained their five large fruit
trees before the Accident.  He helped his wife mop floors and do grocery
shopping.  Performing those tasks proved difficult for Mr. Sooch after the
Accident.  His chores (except the pruning of the fruit trees after the move to
Surrey) have largely become Ms. Gill’s burden and that, in turn, has
negatively impacted their family life to a small degree.  Having said that,
Ms. Gill is a self-declared “cleaning freak” who has always undertaken the
primary responsibility for the domestic chores.

[93]        
Mr. Sooch seeks a non-pecuniary award of $75,000.  The defendant
submits that the appropriate award would fall in the range of between $25,000
and $30,000.

[94]        
Enduring pain, even where it has become intermittent and its intensity
fluctuates between mild and moderate, takes its toll on everyday living.  There
can be no question that the ill-effects of the Accident have negatively
affected the quality and enjoyment of Mr. Sooch’s life and the lives of
those he loves, and will continue to be bothersome at a progressively diminishing
level for some years to come.

[95]        
Having considered the evidence and the case authorities placed before me
by counsel, in my opinion, a fair and reasonable award for Mr. Sooch’s
non-pecuniary damages is $45,000.

Loss of Earning Capacity

Overview

[96]        
Mr. Sooch claims damages for past wage loss in the gross amount of
$21,000, subject to applicable statutory deductions.  He seeks $75,000 in
respect of his impaired earning capacity into the future.  It is useful to
clarify that Mr. Sooch is not pursing a claim that he lost the capacity to
be a taxi owner/operator because of the Accident.

[97]        
The defendant contends that the nominal sum of $2,000 represents fair
compensation for Mr. Sooch’s wage loss to trial.  He submits that
Mr. Sooch has not made out a sufficient evidentiary basis to support a
future loss of capacity claim.  In the alternative, the defendant submits that
if a substantial possibility of a future event leading to an income loss has
been established on the evidence, the quantum of that loss would be modest.  He
advocates a range of between $5,000 and $10,000.

[98]        
The legal framework that informs an award for loss of earning capacity
was helpfully summarized by Dardi J. in Drodge, at paras. 147-151:

[147]   The recent jurisprudence of the Court of Appeal has
affirmed that the plaintiff must demonstrate both an impairment to his or her
earning capacity, and that there is a real and substantial possibility that the
diminishment in earning capacity will result in a pecuniary loss. If the
plaintiff discharges that requirement, he or she may prove the quantification
of that loss of earning capacity either on an earnings approach or a “capital
asset” approach: Perren v. Lalari, 2010 BCCA 140 at para. 32.
Regardless of the approach, the court must endeavour to quantify the financial
harm accruing to the plaintiff over the course of his or her working career: Pett
v. Pett, 2009 BCCA 232 at para. 19; X. v. Y at para. 183.

[148]   As recently enumerated by the court
in Falati v. Smith, 2010 BCSC 465 at para. 41, aff’d
2011 BCCA 45, the principles which inform the assessment of
loss of earning capacity include the following:

(1)  The standard of proof in relation to hypothetical or future
events is simple probability, not the balance of probabilities:  Reilly
v. Lynn, 2003 BCCA 49 at para. 101. Hypothetical events are to be
given weight according to their relative likelihood:  Athey v. Leonati,
[1996] 3 S.C.R. 458 at para. 27.

(2)  The court must make allowances for the possibility that the
assumptions upon which an award is based may prove to be wrong:  Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49 B.C.L.R.
(2d) 99 (C.A.). Evidence which supports a contingency must show a “realistic as
opposed to a speculative possibility”:  Graham v. Rourke (1990), 75
O.R. (2d) 622 at 636 (C.A.).

(3)  The court must assess damages for loss of earning capacity and
not calculate them mathematically: Mulholland (Guardian ad litem of) v.
Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43. The overall
fairness and reasonableness of the award must be considered:  Rosvold
v. Dunlop, 2001 BCCA 1 at para. 11. The assessment is based on the
evidence, taking into account all positive and negative contingencies.

[149]   Although a claim for “past loss of income” is often
characterized as a separate head of damages, it is properly characterized as a
component of loss of earning capacity: Falati at para. 39.
It is a claim for the loss of value of the work that an injured plaintiff would
have performed but was unable to perform because of the injury: Rowe v.
Bobell Express Ltd., 2005 BCCA 141 at para. 30; Bradley at paras. 31-32;
X. v. Y at para. 185.

[150]   This court in Falati at para. 40,
summarized the pertinent legal principles governing the assessment of
post-accident, pre-trial loss of earning capacity and concluded that:

… the determination of a
plaintiff’s prospective post-accident, pre-trial losses can involve
considering many of the same contingencies as govern the assessment of a loss
of future earning capacity. … As stated by Rowles J.A. in Smith v.
Knudsen, 2004 BCCA 613, at para. 29,

“What would have happened in the
past but for the injury is no more ‘knowable’ than what will happen in the
future and therefore it is appropriate to assess the likelihood of hypothetical
and future events rather than applying the balance of probabilities test that
is applied with respect to past actual events.”

[151]   With respect to the loss
of earning capacity from the accident to date of trial, the defendants are only
liable for the net income loss, as defined in s. 98 of the Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231. In Lines at para. 184,
the Court of Appeal held that “it was the intention of the Legislature to give
a discretion to the judge to determine what period or periods are appropriate
for the determination of net income loss in all of the circumstances”.

Past Loss

[99]        
I accept that after Mr. Sooch acquired an ownership interest in
Kelowna Cabs he worked approximately 60 hours per week in the months leading up
to the Accident, earning approximately $100 per day.  He compiled a list of the
days that he says he missed from work at Kelowna Cabs due to his
Accident-induced symptoms between October 6, 2006 and February 20, 2008.  He relied
on it at trial as an aide-mémoire of sorts, without objection by defence counsel. 
Mr. Sooch had prepared the list from information he recorded on a calendar
that he kept contemporaneously as the days were missed.  He did not produce the
actual calendar and candidly acknowledged that his aide-mémoire may not be
entirely accurate.  He also acknowledged that he maintained specific trip
sheets for each of his taxi shifts which he remitted to Kelowna Cabs.  None of
those sheets were in evidence.

[100]     Mr. Sooch
claims to have lost approximately 165 hours of work between October 6 and
December 30, 2006.  Applying a notional hourly rate of $20 to 150 of those
hours (presumably discounted to reflect the possible inaccuracy of Mr. Sooch’s
list), his counsel calculated a resulting financial loss in 2006 of $3,000.

[101]     Mr. Sooch
recorded eight hours of missed work in early January 2007, before he departed
to India.  It is clear that he would have taken that trip whether the Accident
had happened or not.  Indeed, the evidence reveals a pattern of Mr. Sooch
taking prolonged holidays in India, usually from January through March, approximately
every second or third year, although sometimes more often as in 2006 and 2007.

[102]     Mr. Sooch’s
aide-mémoire recorded a total of 322 hours of lost work in 2007.  Using the $20
per hour multiplier, his counsel purported to quantify that loss as $6,440. 
Mr. Sooch says that he lost an additional 25 hours during January and
February 2008, which he submits represents a loss in that period of $500.

[103]     A review
of Mr. Sooch’s income tax returns shows that in the years 2001-2004, his
income was highly variable and he was not a large earner.  His highest income
in the five years immediately preceding the year of the Accident was achieved
in 2005.  In that year, his gross business income as a self-employed taxi
driver was $42,591, yielding a net amount of $8,097.51.  Turning to 2006, Mr. Sooch’s
income tax information summary shows his gross business income as $29,669,
netting out at $9,644, and dividend income of less than $2,000.  Given that he
had spent about three months in India that year, he earned his 2006 income over
a nine month period, for twelve weeks of which he was injured and missed
considerable hours of work.  To complicate matters, I had understood
Mr. Sooch to say that by June or perhaps even May of 2006, he had scaled back
his hours as a driver of a leased cab in anticipation of becoming a taxi owner/operator.

[104]     In closing
argument, Mr. Sooch’s counsel, who acknowledged he was applying blunt
figures, submitted that due to the Accident Mr. Sooch had lost
approximately three months of work in 2006 at the rate of $1,377.71 per month,
for a total loss of $4,133.13.  In assessing Mr. Sooch’s wage loss in
respect of Kelowna Cabs, his counsel relied on his calculation of Mr. Sooch’s
supposed monthly income for 2006, which encompassed several months of
pre-Accident earnings as a driver as distinct from an owner/operator.  Mr. Sooch’s
counsel offered similar tabulations in respect of the claimed wage loss for 2007
through February 2008.  This approach is conceptually flawed because it relies
on an unproven scenario, as Mr. Sooch had not established a pattern of
income in his new position as a taxi owner prior to the Accident that would reasonably
justify extrapolation into subsequent years.  The proposed calculations also
fail to take into account his extended trips to India within the subject period.

[105]     In the
end, I conclude that the assumed facts underpinning Mr. Sooch’s counsel’s
arithmetic are flawed and/or not grounded in the evidence.  Moreover, the
calculations presented by counsel do not accord with Mr. Sooch’s testimony
as to the time he lost at Kelowna Cabs.

[106]     Defence
counsel asserts that Mr. Sooch is compelled to adduce evidence from Kelowna
Cabs verifying his claim for missed time/shifts.  Relying on Edmondson,
he submits that as a result of Mr. Sooch’s failure to tender such
evidence, he has not met the onus of proving that component of his past loss. 
I do not share that view.  While I agree that the specificity of Mr. Sooch’s
evidence would have been enhanced by corroborative work records, Edmondson
does not hold as a matter of principle that the absence of that evidence is fatal. 
Mr. Sooch’s evidence as bolstered by the medical evidence forms a
sufficient evidentiary foundation to support his claim.

[107]     I am
satisfied that Mr. Sooch relinquished available shifts or left shifts
early because of his injuries sustained in the Accident during the period he
was a taxi owner/operator with Kelowna Cabs.  I also accept that his
aide-mémoire substantially reflects those missed work hours.

[108]     The
assessment of loss once Mr. Sooch joined Rolls Right is somewhat more
challenging.  Defence counsel correctly points out that Mr. Sooch’s gross
business income increased with his move to Rolls Right.  His reported gross
business income in 2008 was $47,359.38, producing a net figure of $13,628.38. 
In 2009, he reported gross business income of $58,282.76, which translated into
a net figure of $18,897.26.  The vast majority of Mr. Sooch’s business
expenses in both years were attributable to his delivery truck.  Defendant’s
counsel argues that because Mr. Sooch earns more money currently than he
did prior to the Accident, he has suffered no wage loss in respect of those
years.  That assertion is misguided and is not responsive to Mr. Sooch’s essential
position that he would have made an even greater amount with Rolls Right had he
not been injured in the Accident.

[109]     Mr. Sooch
testified that he has had to turn down one or two shifts each month at Rolls
Right because of the lingering effects of his injuries.  I accept that, in all
probability, he did give up shifts at that rate for the first year of his
affiliation with Rolls Right.  By his own account, however, and as indicated by
the medical evidence, by March 2009 Mr. Sooch’s neck symptoms had lessened
considerably and continued to diminish on a go-forward basis.  His shoulder
symptoms charted a similar, although not quite as successful, course of
improvement.

[110]     I am not
able to accept Mr. Sooch’s sweeping assertion that he continued to miss shifts
at Rolls Right due to the effects of the Accident at the rate of once or twice
per month from mid-2009 to trial.  The probabilities of the situation indicated
by the evidence do not bear that out.  This was the only controversial point of
evidence where I concluded that Mr. Sooch had overstated the adverse
effects of his symptoms.  Although the evidence does establish that
Mr. Sooch’s neck and left shoulder complaints continued to bother him and
from time to time interfered with his capacity to take on a shift or complete a
shift, I conclude that after mid-2009 the frequency of those occurrences was
probably less than twice a month on average, and have become even less frequent
with time.

[111]     I assess
Mr. Sooch’s gross wage loss through to trial to be $15,500.  As he is only
entitled to recover his net income losses, I direct counsel to carry out the
necessary calculations, with liberty to apply if they are unable to do so.

Future Loss

[112]     In his
report, Dr. van Rijn discussed Mr. Sooch’s many occupational
restrictions.  He believed that those limitations were likely consistent with a
permanent disability.  In terms of vocational restrictions, he opined that as a
result of Mr. Sooch’s ongoing pain and other Accident-related complaints,
he has likely suffered an occupational handicap, secondary to his ongoing
difficulties.  Those conclusions may have been well-founded based upon the
prevailing circumstances at the time of Dr. van Rijn’s examination of
Mr. Sooch on March 12, 2009.  As noted, however, Mr. Sooch’s
symptoms and function have continued to improve since then.  His current
physical state is clearly superior to the condition he was in when he saw
Dr. van Rijn.

[113]     Dr. Mendoza
opined that Mr. Sooch’s residual symptoms likely represented a permanent
disability.  His reasoning stemmed from the fact that Mr. Sooch’s symptoms
had not improved significantly since Dr. Mendoza began treating him in
November 2008.  However, that observation is not entirely compatible with
Mr. Sooch’s testimony at trial about the course of improvement of his neck
and shoulder symptoms.

[114]     Dr. van Rijn
had understood Mr. Sooch to be contemplating leaving his position with
Rolls Right and possibly resuming work as a taxi driver because he found
driving his truck and making deliveries too difficult to manage on account of
his injuries.  He agreed that the fact that some two years later Mr. Sooch
was still driving for Rolls Right indicated either an improvement in his
symptoms or a better ability on his part to cope with them.  I find that both
factors are at play.

[115]     Although
Mr. Sooch has a university education, since arriving in Canada his employment
has been largely physical in nature; first as a labourer, then as a taxi driver,
and now as a truck driver/delivery man.  There is no reason to expect the
nature of his employment to change in the future.  The totality of the evidence
that I accept establishes as a likely prospect that, going forward, the
ill-effects of the Accident will continue to be triggered in a way that causes
a diminution of Mr. Sooch’s functional capacity at work and impairs his
earning capacity.  The likelihood is that those episodes will be infrequent and
relatively mild in their intensity and disruptive effect on his work.  While
Mr. Sooch’s future working life and employment income has been impaired because
of the Accident, as compared to his future had the Accident not happened, I
find that his functional impairment will be mild overall, and will probably not
extend for the remainder of his anticipated working life.

[116]     Mr. Sooch
has demonstrated that on account of his Accident-induced injuries and the consequent
impairment of his earning capacity, there is a real and substantial possibility
that he will suffer a future pecuniary loss.  He tendered evidence of applicable
income loss multipliers.  Using them, he calculated, by way of example, the
present value of an annual loss of $1,000 to be $18,914, assuming he was to
work until age 65.

[117]     It is
difficult to measure Mr. Sooch’s impairment by applying a purely
mathematical formula.  It is preferable to quantify his loss by taking in to
account the factors that inform the capital asset approach laid out in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) [Brown].  That
approach involves considering factors such as:  (i) whether the plaintiff
has been rendered less capable overall of earning income from all types of
employment; (ii) is less marketable or attractive as a potential employee;
(iii) has lost the ability to take advantage of all job opportunities that
might otherwise have been open; and (iv) is less valuable to himself/herself
as a person capable of earning income in a competitive labour market.  The
evidence establishes that the factors set out in items (i), (ii) and (iv) apply
to Mr. Sooch.

[118]     The law
has long recognized that unknown contingencies and uncertain factors make it
impossible to calculate lost future earning capacity with any precision.  It is
because the occurrence of future events is unknown that allowances must be made
for the contingency that the assumptions underlying a proposed award may prove
to be incorrect.  Accordingly, the quantification assessment must take into
account all relevant positive and negative contingencies.

[119]     With
respect to specific negative contingencies, defence counsel argues that Mr. Sooch’s
hand injury sustained in November 2010 which has already caused him to be off
work for a number of months, could result in missed work in the future.  There
is not a scintilla of evidence to support that so-called contingency.  He also
asserts that Mr. Sooch’s depression could impact his ability to work from
time to time in the future.  Yet, there is no evidence that Mr. Sooch has
ever missed time from work due to that condition.  To the contrary, his
testimony and the evidence of his wife is that he has been able to successfully
manage his low mood with medication.  I likewise reject the defendant’s
argument that Mr. Sooch’s alleged prior “neck problems” establish a
contingency of potential future problems that would adversely affect Mr. Sooch’s
work.

[120]     Bearing in
mind the applicable legal principles including the Brown criteria in light
of the evidence, I assess Mr. Sooch’s loss of future earning capacity from
the date of trial as $30,000.

Cost of Future Care

[121]     Mr. Sooch
gave general evidence to the effect that he continues to attend physiotherapy
on an “as needed” basis.  He also testified that he continues to intermittently
use over-the-counter medications, such as Tylenol, to cope with his residual
symptoms.  He seeks damages to cover these future care costs.

[122]     Mr. Sooch
was vague about the frequency of his physiotherapy attendances and the cost of
them.  The last physiotherapy record in evidence is dated February 10,
2009.  There is no medical evidence that would endorse his future attendances
at physiotherapy, nor is there cogent evidence from Mr. Sooch confirming his
future plans to continue with that treatment into the future.

[123]     The
evidence falls short of establishing that future physiotherapy sessions are
reasonably necessary to preserve Mr. Sooch’s health within the meaning of
the authorities:  (see, for example, Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.); Penner v.
Insurance Corporation of British Columbia, 2011 BCCA 135; and Gregory v.
ICBC, 2011 BCCA 144).

[124]     On the
other hand, I do accept that Mr. Sooch will continue to require Tylenol to
manage his symptoms related to the Accident.  In this regard, I agree with the
submission of defendant’s counsel that the sum of $1,000 is appropriate, and make
that award.

Loss of Housekeeping Capacity

[125]     Damages
under this head may be awarded, even where the housekeeping services were
gratuitously replaced by a family member and the plaintiff has not incurred any
out-of-pocket expense.  Recovery may be permitted for the loss of the ability
to perform household tasks before trial, and into the future: Dykeman v.
Porohowski, 2010 BCCA 36 at para. 28.

[126]     For
damages to be awarded, the nature of the gratuitous services performed within a
family must be something more than the usual “give and take” between family
members.  They must also be necessitated by the plaintiff’s injuries, such that
they would not have been provided in any event: Dykeman, para. 29.

[127]     Although Ms. Gill
has assumed expanded responsibilities for the domestic chores that
Mr. Sooch had performed prior to the Accident, I am not persuaded that the
adjustment is significant enough to justify a standalone award of damages under
this head.  I have considered the matter as a factor in the assessment of
Mr. Sooch’s non-pecuniary damages.

Special Damages

[128]     The
parties have agreed on special damages attributable to fees incurred for visits
to various medical practitioners and certain medications in the amount of
$2,500.  That award is granted.

Costs

[129]    
If the parties are unable to agree as to costs, they may file written
submissions implementing a time table of their choosing that incorporates a
final deadline of August 15, 2012.

_____________ “Ballance J.”______________
Ballance J.