IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120516

Docket:  M083927

Registry:
Vancouver

Between:

Dale Currie

Plaintiff

And

Neil
McKinnon, Floyd De Smoker, John Doe and Jane Doe

Defendants

Before:
The Honourable Madam Justice Adair

Reasons for Judgment

Introduction

[1]            
The plaintiff, Dale Currie, was rear-ended in a motor vehicle accident
that occurred on September 14, 2006, on Highway 1, near Sawmill Creek, north of
Yale, B.C.  Mr. Currie asserts that he suffered a number of injuries as a
result of the accident, including to his neck and back, and that he continues
to suffer the effects of these injuries as of the date of trial, more than five
years after the accident.  He seeks both non-pecuniary and pecuniary damages,
including damages for loss of income and loss of future earning capacity.

[2]            
Liability has been admitted by the defendants Neil McKinnon and Floyd De
Smoker.  They acknowledge that Mr. Currie suffered some injuries in the
accident.  However, they say that the accident caused Mr. Currie to suffer
minor soft tissue injuries at most, the significant consequences of which
lasted a maximum of five months.  Further, the defendants say that Mr. Currie
has failed to prove any loss of income or any diminished earning capacity.

[3]            
The issues I must determine are:

(a)      what
are the nature and extent of the injuries to Mr. Currie resulting from the
accident? and

(b)      what
are the damages to which Mr. Currie is entitled?

Background

[4]            
Mr. Currie was born in February 1965 and is now 47.  He has a grade 12
education.  Mr. Currie is single and lives in Cache Creek, B.C.

[5]            
Mr. Currie is a businessman and owns two-thirds of the shares of Jim
& Joe’s Trucking Co. Ltd. (“Jim and Joe’s”), a company founded by Mr.
Currie’s father.  His older brother, Joe Currie, owns the balance of the
shares.  Mr. Currie is president and a director of Jim & Joe’s.

[6]            
Jim and Joe’s is responsible for distribution of the Vancouver Sun and Vancouver
Province newspapers in a territory ranging from the Fraser Valley east and
north into the B.C. interior.  Mr. Currie began working for the company in
1980, and he has never worked anywhere else.  He became an owner in 1993, when
his father died.  (I note that there is, apparently, a second arm of the
business, called “AM/PM”, and there was some suggestion that Jim & Joe’s
looks after the trucking, while AM/PM looks after the distribution.  However,
this was touched on only very briefly in the evidence, and I conclude that,
corporately, the business as a whole is carried on by Jim and Joe’s.)

[7]            
As of September 2006, Mr. Currie was working full-time, spending about half
his time driving a delivery truck and the other half in the office.  Driving a
delivery truck involves physical labour.  For example, bundles of newspapers,
weighing between 20 and 40 lbs., have to be loaded on to the truck.  Mr. Currie
testified that, prior to the accident, he regularly worked ten hours a day, with
between five and six hours of driving.  In the office, he dealt with payroll, new
contracts, all complaints concerning delivery and distribution of papers and
other administrative tasks relating to the business.  Mr. Currie testified
that, prior to the accident, he had no physical limitations.

[8]            
Mr. Currie is paid a modest salary, and he receives most of his
employment income by way of “other employment income” from the company.  Mr.
Currie explained that he and the company’s accountant would make the
determination of the split between salary and other employment income
annually.  It appears the goal was to keep the company’s revenue at a level
where it would qualify for the small business deduction and pay the lowest
level of tax.  Mr. Currie testified that he was paid $2,277 every two weeks,
and that generally his total annual employment income (salary and “other
income”) was around $53,000.  Mr. Currie’s income tax returns disclose that in
each of 2005 and 2006, his total employment income was approximately $57,460. 
In 2007, it was approximately $55,230 and in 2008, it was approximately
$61,940.

[9]            
In his leisure time, Mr. Currie enjoyed playing hockey and golf.  He
lived alone, and had a housekeeper who looked after everything except laundry.

[10]        
When he was about age 10, Mr. Currie was diagnosed with tuberous
sclerosis.  Beginning at about age 18, this condition caused Mr. Currie to
suffer epileptic seizures, and Mr. Currie estimated he had about two of these a
year.

The Accident and Mr. Currie’s Injuries

[11]        
On September 14, 2006, Mr. Currie and his brother were travelling to
Victoria for the annual banquet and awards ceremony put on by Pacific Newspaper
Group (the publisher of the Vancouver Sun and Vancouver Province) for its
distributors.  Jim & Joe’s was in the running for an award.

[12]        
Mr. Currie was driving a 2006 Trail Blazer, and his brother was in a
separate vehicle, travelling in front of Mr. Currie.  Some rock scaling was
being done on Highway 1, near Sawmill Creek, north of Yale, B.C., and they were
stopped by a flag person.  It had been raining lightly.  A motor-home towing a
boat stopped behind Mr. Currie’s Trail Blazer.  Joe Currie had gotten out of
his vehicle and was standing at Mr. Currie’s window, talking to his brother.  Mr.
Currie had his vehicle in “park.”

[13]        
Joe Currie then saw a tandem gravel truck approaching the stopped
traffic from behind.  It was coming around a bend too quickly.  Joe Currie
estimated the truck’s speed around the bend at about 60 kilometres per hour,
whereas the speed limit is 40.   Mr. Currie could hear the truck hydroplaning
on the wet pavement.  According to Joe Currie, the truck swerved into the side
of the motor home and pushed that vehicle into Mr. Currie’s truck.  In turn, Mr.
Currie’s truck hit Joe Currie’s truck.  Joe Currie jumped and ran to get out of
the way of the colliding vehicles.

[14]        
Mr. Currie recalled that, before the collisions, he looked in his rear-view
mirror and saw the truck approaching.  He had his seat belt fastened, and he
had his foot on the brake to get ready for the impact.  He recalled that, on
impact, his body went forward and up out of his seat.  He recalled hitting his
head, but denied any loss of consciousness.  Mr. Currie testified that when his
body came back down, his right arm hit the console shift, shifting his vehicle from
“park” into “drive.”  He recalled that he fell hard back down into his seat.  Mr.
Currie recalled that, after the collision, his head was pointed down, looking
directly at the ground.  He thought he might have broken his neck, and he was
very sore.

[15]        
Emergency Services arrived very quickly.  One of the occupants of the
motor home had been seriously injured.  Police also arrived on the scene.  Joe
Currie thought Mr. Currie had been knocked out, and saw that he had a lump on
his head.  According to Mr. Currie, his neck was still bent forward and very
stiff; he could not lift his head up straight to see, but could only move his
eyeballs.  Joe Currie thought they should go to the hospital.  Emergency
Services examined Mr. Currie and wanted to take him to hospital by ambulance. 
However, Mr. Currie did not want to leave his vehicle at the scene.  Mr. Currie
and Joe Currie talked to the police, and Mr. Currie gave them his commitment
that he would go to the hospital.  Mr. Currie then drove his vehicle to the Fraser
Canyon Hospital in Hope.  Joe Currie followed.

[16]        
Joe Currie was with Mr. Currie when he was examined at the hospital.  Mr.
Currie testified that, by this time, his neck and back were “killing” him, and
he could have sworn his neck was broken.  The nurse’s notes reflect that Mr.
Currie complained of pain in his mid and upper back and neck, and noted
numbness and tingling.  According to the doctor’s notes, on examination, Mr.
Currie had a full range of motion with slight tenderness to his left neck area
on flexion and rotation to the left.  There is no note that Mr. Currie’s head
and neck were flexed forward, pointing down, and I think it unlikely that Mr.
Currie could have driven his Trail Blazer (or would have been permitted to,
despite his protests) in such a condition.  Some medication (including an
anti-inflammatory) was prescribed, and Mr. Currie was left to follow up with
his own doctor as needed.

[17]        
Mr. Currie and Joe Currie then continued on to Victoria, as planned.  Mr.
Currie drove his vehicle, although he complained driving was hard because he
could not move his neck.  Mr. Currie recalled that they arrived in Victoria
about 10 or 11 p.m.  Mr. Currie took some of the anti-inflammatory medication,
and that helped to loosen his neck.  They were in Victoria for a few days
before returning home.  Mr. Currie was too sore to play golf.

[18]        
Jim & Joe’s was the winner of a “silver” award in its category.

[19]        
Mr. Currie understood there had been about $14,000 worth of damage done
to his Trail Blazer in the accident.  The rear end of the vehicle suffered the
most damage.  Joe Currie testified that, at the accident scene, the back end of
the Trail Blazer had been pushed up and the wheels were spinning.  Mr. Currie
did not notice any damage to the front of his vehicle.

After the Accident

[20]        
On September 26, 2006, Mr. Currie attended at the medical clinic where
his family doctor, Dr. Teresa Rawson, practiced.  His prescription for anti-inflammatories
was running out and he was still in pain.  He was examined that day by Dr.
McConville, one of the other clinic doctors.  Dr. McConville’s examination
findings included some loss of range of motion in Mr. Currie’s neck, and
tenderness in Mr. Currie’s thoracic and lumbar spine and abdomen.  Dr.
McConville ordered x-rays to investigate “persistent tenderness” in the lower
thoracic and upper lumbar spine.  Mr. Currie was seen again by Dr. McConville
on October 3.  The x-ray showed some degenerative disc disease and
osteoarthritis.  Mr. Currie testified that his back and neck were still
“killing” him, and Dr. McConville’s notes reflect that Mr. Currie’s neck and
back were still painful.

[21]        
I pause here to note that Mr. Currie did not recall that it was Dr.
McConville who examined him in the weeks shortly after the accident.  Mr.
Currie’s recollection was that he was examined by Dr. Rawson.  However, the
evidence is clear that it was Dr. McConville.

[22]        
Mr. Currie recalled that it took about three months after the accident
to get the mobility back in his neck.  Mr. Currie found that the anti-inflammatories
prescribed helped, and he was also taking ibuprofen and acetaminophen.  In
addition, according to Mr. Currie, his back was sore for about two months.  He
recalled having pain across his lower back and having problems sitting for long
periods.  He also had a cut and some bruising on the top of his head, but no
headaches.  He estimated the pain in his neck at about a 7 or 8, where 10 is
the worse pain imaginable, while the pain in his back was about a 5.  He worked
from home for about three weeks or a month.  According to Mr. Currie, he did
not drive for about three to four weeks after the accident, and did no heavy
lifting.

[23]        
Mr. Currie went back to work about three weeks to a month after the
accident.  However, he found that he was in too much pain to load and drive a
truck, and he moved into the office full-time.  He testified that, since the
accident, he will drive a truck only if necessary, to fill-in for another
driver.  He estimated that over four years, he had done that perhaps about
twenty times in total.  When Mr. Currie moved into the office permanently, he
had to move some other employees around and extend their hours.  Mr. Currie
estimated the costs to the company of finding a replacement for the driving he
did pre-accident were about $82.50 a day or about $2,150 per month.

[24]        
Mr. Currie admitted that the accident has had no effect on his personal
income.  His pre-accident and post-accident tax returns confirm that his income
is more or less the same.  There are no corporate financial statements or tax
returns in evidence.

[25]        
October 3, 2006 was Mr. Currie’s last visit to his family doctor in
connection with the accident, until he saw Dr. Rawson in December 2007 concerning
her preparation of a medical-legal report.  It was not, however, his last visit
to a medical doctor.

[26]        
Mr. Currie was seen in late October 2006 by Dr. Javidan, a neurologist
and epilepsy specialist.  Dr. Javidan’s consultation report describes on his
physical examination of Mr. Currie, and he says that “muscle tone and strength,
sensation and coordination were normal.”  There is no mention that Mr. Currie
was in a motor vehicle accident the previous month, although it is possible the
accident may not have been relevant to the reason for the referral to Dr.
Javidan.

[27]        
Mr. Currie was seen in September 2007 by both Dr. Javidan and Dr.
Woodhurst (a neurosurgeon) in connection with possible neurosurgery to remove a
tuberous growth on his right temporal lobe and to treat his epilepsy.  Dr.
Javidan’s consultation report is relatively brief and focussed on issues
relating to Mr. Currie’s epilepsy and the surgery.  Although that is also the
main focus of Dr. Woodhurst’s consultation report (for Dr. Javidan), that
report is more detailed.  However, there is no mention of either the accident
or any injuries.  There is no mention that Mr. Currie has either neck or back
pain.  Dr. Woodhurst reports that “[g]eneral examination was unremarkable.”

[28]        
On November 22, 2007, Mr. Currie had surgery related to his right temporal
lobe epilepsy.  The surgery, by all accounts, was a success.  One of the
consequences of the surgery was that Mr. Currie was unable to drive from
November 2007 to the end of 2008.  Mr. Currie explained further that, as a
result of a change in his epilepsy medication, his driver’s licence was again
suspended in late 2009 until early 2011.  As of trial, Mr. Currie had had his
driver’s licence back for about nine months.

[29]        
Although, in the year following the accident, Mr. Currie was not
visiting his family doctor, he did seek chiropractic treatment, twice in
December 2006 and four times in the spring of 2007.  Mr. Currie testified that
he also went to massage therapy, but the details about this are sparse.

[30]        
Mr. Currie went back to playing hockey about mid-February 2007, and he continues
to play during a season that starts in the fall.  He explained that no contact
is permitted in his league, and indicated that he can manage playing hockey
quite well.  The suggestion in argument was that this was because hockey
involves mostly gliding on the ice.  However, even in a no-contact league, I do
not believe anyone could seriously describe participating in a hockey game as
mostly “gliding.”

[31]        
Mr. Currie resumed playing golf in about July 2007.  He found that he
could no longer carry his golf bag, and now uses a golf cart.  However, he did
not indicate he had any other difficulties with playing golf.

[32]        
With respect to his current work life, Mr. Currie testified that there
was and is always office work that must be done, for example:  managing staff,
making sure that the company’s vehicles are properly maintained, looking after
payroll, dealing with complaints from customers about problems with deliveries. 
He testified that he finds sitting uncomfortable, but tolerates it and that
massage therapy helps.  Standing is tolerable if he is moving, but Mr. Currie
finds that, when standing still for long periods (e.g., 30 minutes), his back
hurts and he feels his lower back knots up.

[33]        
Mr. Currie testified that he has been in pain for five years, following
the accident.  He says that he gets relief for about two to three weeks from
massage therapy.  He says that he finds it uncomfortable to sit, and describes
feeling like he is sitting on a “knot.”  Mr. Currie says that he continues to
experience soreness in his neck, which he treats with heat and cold packs.  He
estimates the current level of pain as at about a four or five, and described
it as a “numbing” pain.  In addition, according to Mr. Currie, he started to
notice about three months after the accident that his neck and head were tilted
at an angle.  He said that, for example, his dentist pulls his head up to
straighten it.

[34]        
Mr. Currie feels that he reached a “plateau” about 18 months after the
accident.  His main problems are with his neck and lower back.  He also
complains about what he called “sciatica” and described this as a “knot” he
feels in his back when sitting, running down his right leg.  He takes medication
occasionally to relax muscles and for pain.  He says that he has been going to
massage therapy about once every four weeks for the past five years.  Mr.
Currie found that chiropractic treatment did not really help him.

[35]        
Because he has always had a paid housekeeper, Mr. Currie has no problems
with housework.  However, he testified that, after the accident, he has
problems doing yard work.

[36]        
Mr. Currie testified that he feels his life after the accident has
changed “ten-fold.”  He can no longer do heavier physical labour, like lifting
bundles of newspapers.  Before the accident, he was out driving a truck, and
now he is spending most of his time working in an office.

Expert Evidence

[37]        
In support of his claim, Mr. Currie called:  Dr. Rawson, who had been
his family doctor at the time of the accident and for some time thereafter; Dr.
Uzair Sheik, his current family doctor; and Ms. Minirah Shivji, an occupational
therapist.  All three prepared reports, and all testified at trial.

[38]        
The defendants called Dr. Martin Grypma, who carried out an independent
medical examination of Mr. Currie and prepared a report.  Dr. Grypma also
testified at trial.

(a)      The Medical Evidence

[39]        
Dr. Rawson’s report is dated August 1, 2008.  No real attempt had been
made to comply with Rule 11-6(1) of the Supreme Court Civil Rules
(or even Rule 40A of the former Rules) in relation to the form
and content of her report.  The report failed to set out the factual
assumptions on which Dr. Rawson’s opinion was based, failed to set out the
documents on which she relied in forming her opinion and, generally, failed to
set out the reasons for her opinion.

[40]        
Accordingly, Mr. McKechnie (on behalf of the defendants) objected to the
admissibility of Dr. Rawson’s report.  In the result, I ruled that the report
would be admitted, and the defects in the report would go to weight.

[41]        
There was an additional problem.  Dr. Rawson examined Mr. Currie on December
13, 2007, in connection with the preparation of her opinion and report.  This
was the only occasion on which Dr. Rawson examined Mr. Currie in relation to
injuries he sustained in the accident.  However, Dr. Rawson’s clinical notes of
her examination and objective findings were missing.

[42]        
In her report, Dr. Rawson described Mr. Currie’s injuries sustained in
the accident as follows:

1.  Closed Head Injury; he
sustained a contusion to his frontal bone when his head hit the windshield.

2.  Hyperflexion and crush injury
to his Cervical spine; this was due to the impact of his head against the
windshield at high speed and with force.  He was unable to straighten his neck
for 5 days.

3.  Mechanical back injury due to sudden hyperflexion of his
lumbar spine.

[43]        
Dr. Rawson acknowledged on cross-examination that her diagnosis of
closed head injury was based entirely on Mr. Currie’s report.  Her diagnosis of
hyperflexion and crush injury to his cervical spine was based on what Mr.
Currie told her, her review of the Fraser Canyon Hospital emergency notes and
Dr. McConville’s notes of Mr. Currie’s visits on September 26 and October 3,
2006, and the x-ray ordered by Dr. McConville.  However, Dr. Rawson
acknowledged that the “diagnosis” on the Fraser Canyon Hospital emergency notes
was not legible, and that the notes did not mention a crush injury.  She also
acknowledged that some of Dr. McConville’s notes were not legible.  Dr. Rawson
also looked at the records from the chiropractor (who saw Mr. Currie in
December 2006), but acknowledged that there was not much there that was
legible.

[44]        
Dr. Rawson’s diagnosis of mechanical back injury was based on Mr. Currie’s
description of what happened, and possibly her review of Dr. McConville’s
notes.  However, Dr. McConville’s notes (to the extent they were legible) did
not mention a hyperflexion of Mr. Currie’s lumbar spine.

[45]        
In her report, Dr. Rawson then listed the “impact” of these injuries on Mr.
Currie.  She says that he was unable to play golf or hockey for one year. 
However, that is not consistent with Mr. Currie’s evidence at trial.  She says
further that he required chiropractic treatment for one year.  However, that
also is not consistent with the evidence at trial.  Dr. Rawson says that Mr.
Currie attended massage therapy for eight months after the accident.  However,
there is no record of this, and Mr. Currie’s evidence at trial concerning his
massage therapy treatments in the year following the accident was vague.

[46]        
Dr. Rawson comments on how the accident affected Mr. Currie’s capacity
to work.  She says that the injuries “have almost certainly affected his
strength, stamina and mobility.  . . . During episodes of lower back pain, he [Mr.
Currie] also notes how his range of motion is also reduced slightly.  He does
not manage full flexion – being mildly impaired, and he notes moderate
impairment in spinal rotation both right and left.”  However, there is no
record of any such clinical findings on examination, and Dr. Rawson’s
statements in her report suggest that she is relying on what Mr. Currie told
her, rather than her own examination findings.

[47]        
Dr. Rawson continues:

Although he is not yet at 1 year
since his MVA, it would be reasonable to state that he has reached a plateau in
his healing.  There would be no further management to be pursued following
injuries such as these.  As such, I would state that he has sustained a
permanent disability – albeit moderate rather than severe – as a result of the
MVA.  . . .

His current diagnosis is Chronic Mechanical Back Pain.  His
current condition is stable but impaired.

Of course, by December 2007, it was more than a year
after the accident.  Dr. Rawson again misstates a fact.

[48]        
The only diagnosis made by Dr. Rawson as of December 13, 2007 is
mechanical back pain.  However, she does not explain how she arrived at this
diagnosis, or what it is based on.  Although it might be implied, she does not
in fact say that the mechanical back pain she has diagnosed is caused by
injuries Mr. Currie sustained in the accident.  Dr. Rawson says nothing about Mr.
Currie’s neck.  She does not explain her conclusion that there would be “no
further management to be pursued” following injuries such as these, although it
may be based at least in part on her (incorrect) assumptions that Mr. Currie
had had chiropractic treatment for a year and massage therapy for eight months.

[49]        
Dr. Sheik took over as Mr. Currie’s family doctor, and he began seeing Mr.
Currie in August 2010.  Dr. Sheik’s report is dated December 13, 2011.  Among
other materials, Dr. Sheik reviewed the medical records from Mr. Currie’s
previous family doctors and Dr. Rawson’s medical-legal report.  His description
of the injuries that Mr. Currie sustained in the accident came (for the most
part) from the clinical notes he reviewed and from Dr. Rawson’s report.  He
examined Mr. Currie on November 24, 2011.

[50]        
In his report, Dr. Sheik said that Mr. Currie’s neck injury “appears to
be bothering him the most since the accident, and as such has been the focus of
my attention during consult.”  With respect to Dr. Rawson’s conclusion of
“mechanical back pain,” Dr. Sheik said that it “appears to not be bothering him
as much as during the 1st year after the MVA.  He has been able to perform full
duties at work with only occasional flare ups of back pain usually related to
heavy lifting or bending.”  Based on his review of the x-rays done on September
26, 2009, and his examination of Mr. Currie, Dr. Sheik concluded that Mr.
Currie had suffered only soft tissue injuries to his back in the accident.  In
contrast to Dr. Rawson, he does not say that Mr. Currie has sustained
chronic mechanical back pain and a permanent disability.

[51]        
Dr. Sheik noted that, since the accident, Mr. Currie complained of
persistent left-sided neck pain.  He ordered a CT scan and x-ray of the cervical
spine, but, according to Dr. Sheik, the report did not show any features of an
old fracture or displacement of the cervical spine.  The numerous mild
degenerative changes were not uncommon for Mr. Currie’s age group. 
Nevertheless, Dr. Sheik noted a slight tilt of Mr. Currie’s neck to the left,
when Mr. Currie was in his most neutral position looking forward.  Dr. Sheik
commented that Mr. Currie could voluntarily straighten his neck, and abolish
the tilt, but said that this felt awkward to Mr. Currie.  Dr. Sheik noted that Mr.
Currie had a slight decrease in lateral flexion of his neck to the left, but
all other neck movements appeared normal.  Dr. Sheik noted that Mr. Currie had
mild pain on palpitation of the sterno-cleido-mastoid muscle on the left side
of his neck.  In his clinical notes of his examination of Mr. Currie, he says (underlining
added):  “I presume that patient had a neck muscle injury around the
accident in 2006 that probably caused a bit of shortening after healing with
scar tissue formation.”  However, neither the emergency doctor at Fraser Canyon
Hospital nor Dr. McConville diagnosed or noted a “neck muscle injury.”  Dr.
Rawson also made no such diagnosis.

[52]        
In Dr. Sheik’s opinion (as expressed in his report), Mr. Currie likely
sustained a left-sided sterno-cleido-mastoid muscle injury in the accident.  He
said that this resulted in some shortening of the muscle during healing, with a
build-up of scar tissue, and, as a result, Mr. Currie’s neck appears to be
rotated slightly to the left, with ongoing left-sided neck muscle pain.  Dr.
Sheik recommended that Mr. Currie see a physiotherapist, to begin a series of
evaluations and exercises to help counter-act the injury and restore his neck
muscle into a more normal functioning position.  Dr. Sheik confirmed in his
evidence at trial that his report and the conclusions stated in his report
reflect the entirety of his opinion concerning Mr. Currie’s injuries from the
accident.

[53]        
Dr. Grypma examined Mr. Currie on December 19, 2011, and his report is
dated the same date.  Dr. Grypma was asked to provide an orthopaedic assessment
of the injuries Mr. Currie sustained following the accident, including a
diagnosis, opinion on causation and prognosis for future recovery.

[54]        
Some of the history Dr. Grypma says he received from Mr. Currie is
inconsistent with Mr. Currie’s evidence at trial.  For example, Dr. Grypma says
that Mr. Currie told him he could not play hockey until a month after the
accident.  Mr. Currie’s evidence at trial is that he was unable to play hockey
until mid-February 2007, about five months after the accident.  Dr. Grypma says
that Mr. Currie told him he took no time off work after the accident.  Mr.
Currie’s evidence at trial is that he took three weeks to a month off work.

[55]        
In Dr. Grypma’s opinion, Dr. Sheik’s diagnosis of left-sided sterno-cleido-mastoid
muscle injury was not supported.  Dr. Grypma reported that, during his
examination, Mr. Currie kept his neck in normal alignment and did not show any “list”
to the left or the right, and he did not show any asymmetry with regards to his
sterno-cleido-mastoid muscle.

[56]        
In Dr. Grypma’s opinion, Mr. Currie likely sustained a mild “grade I”
soft tissue injury to his neck and mid-upper back, secondary to the accident. 
Dr. Grypma provides a number of reasons for reaching that conclusion, including
that:  when Mr. Currie was treated at Fraser Canyon Hospital the day of the
accident, he complained of pain in his neck and mid-upper back and had full
range of motion to his neck; that there were infrequent family physician visits
after the accident; when Mr. Currie saw Dr. Javidan on October 31, 2006, there
was no record of either the accident or any neck or back pain in his report;
and Mr. Currie’s neurosurgeon (Dr. Woodhurst) did not record any neck or lower
back pain, or the accident, when he saw Mr. Currie on September 28, 2007. 
However, Dr. Grypma also relies on his belief that Mr. Currie was back playing
hockey a month after the accident, to support his conclusions.  Dr. Grypma
repeats this “fact” several times in connection with his conclusion that Mr.
Currie sustained a grade I soft tissue injury to his neck.

[57]        
Dr. Grypma would expect a grade I soft tissue injury to the neck to heal
in approximately four to six weeks.  In Dr. Grypma’s opinion, Mr. Currie likely
had partial disability for approximately two to four weeks, and his enduring
neck symptoms are likely due to degenerative changes.

[58]        
In Dr. Grypma’s opinion, it is “highly unlikely” that Mr. Currie
sustained any injury to his lower back secondary to the accident.  In support
of his conclusion, Dr. Grypma points to the absence of any record of lower back
pain in the Fraser Canyon Hospital records the day of the accident, and that
there is no record of lower back pain in the family physician visits on
September 26 and October 3, 2006.  Based on Mr. Currie’s statement to Dr.
Grypma that his lower back pain started two weeks after the accident, Dr.
Grypma concludes it is “highly unlikely” to be accident-related, because of the
“long delay.”  In Dr. Grypma’s opinion, if Mr. Currie had sustained an injury
to his lower back secondary to the accident, Mr. Currie would have had
“immediate” pain.  In Dr. Grypma’s opinion, Mr. Currie’s enduring back pain is
likely due to degenerative disc disease, “functional overlay” and normal aches
the aging population develops, particularly in Mr. Currie’s age group.

[59]        
In Dr. Grypma’s opinion, there is no reason for any treatment at this
stage, and regular home exercises and stretches would be the treatment of
choice.  He says that if Mr. Currie needs some direction in this regard, then
several visits to physiotherapy would be helpful.  However, no further
treatment is recommended.  He notes that on his examination of Mr. Currie on
December 19, 2011, he could not find any objective findings to support ongoing
disability related to the accident.

[60]        
In Dr. Grypma’s opinion, the risk of the accident causing any
osteoarthritis or degenerative changes is “highly unlikely.”  He says that a “grade
I soft tissue injury is highly unlikely to cause any degenerative changes or
osteoarthritic changes to the neck.”

[61]        
There is no medical opinion evidence that the symptoms that Mr. Currie
describes as “sciatica” either are sciatica or are related to the accident or
caused by injuries sustained in the accident.

(b)      Functional Capacity Assessment

[62]        
Ms. Shivji is an occupational therapist with over twenty years of
experience.  She carried out an assessment of Mr. Currie over nine hours on
September 20, 2011.  She confirmed that she was assessing Mr. Currie’s
functional capacity as of the date of the assessment.  She also, very fairly,
confirmed that it was not within her area of expertise to determine issues of
causation.  In other words, Ms. Shivji expressed no opinion on the cause
of any limitations in Mr. Currie’s functional capacity.

[63]        
In summary, Ms. Shivji concluded, based on the findings of the
functional capacity evaluation, that Mr. Currie is best suited to limited,
light, medium and some heavy strength work, owing to neck, low back and right
leg limitations.  He was assessed as being capable of working on a full-time
basis, provided that he is working within his physical capacity.  In Ms.
Shivji’s opinion, Mr. Currie would be best suited to work in job titles in
which he could vary his positions between sitting, standing and walking and
with a variety of physical demands within his physical capacity and within his
control.

[64]        
A vocational consultant (which Ms. Shivji is not) could provide a
detailed analysis of the job titles for which Mr. Currie would qualify, within
his physical abilities and restrictions, and with consideration to other factors
such as Mr. Currie’s interests, education and aptitudes.

[65]        
Ms. Shivji offered several recommendations to increase Mr. Currie’s
employability.  These included short-term physical therapy to treat his neck
and back symptoms and to teach him to use better posture when sitting, standing
and walking.

Discussion and Analysis

[66]        
I will first discuss my findings and conclusions concerning Mr. Currie’s
injuries and then turn to the assessment of damages.

(a)      Findings and Conclusions concerning Mr.
Currie’s Injuries

[67]        
There is no dispute that Mr. Currie suffered some injuries in the
accident.  Mr. Currie’s position is that he continues as of trial to suffer the
effects of those injuries.  The defendants’ position is that the injuries
suffered in the accident were relatively minor and had resolved within a short
period.  The defendants say that, to the extent Mr. Currie continues to
experience symptoms – particularly neck and back pain – as of trial, those
symptoms are unrelated to the accident and are not caused by injuries suffered
in the accident.

[68]        
Mr. Dahlgren, on behalf of Mr. Currie, argues that I should conclude Mr.
Currie was seriously injured because he was involved in a “very serious
accident,” involving a “high speed” collision and that resulted in substantial
property damage.  However, these facts are not necessarily connected in any
logical way to the nature and extent of Mr. Currie’s injuries, as Thackray J.
(as he then was) pointed out (in a slightly different context) in Gordon
v. Palmer (1993), 78 B.C.L.R. (2d) 236, at para. 5:

Significant injuries can be caused by the most casual of
slips and falls.  Conversely, accidents causing extensive property damage may
leave those involved unscathed.  The presence and extent of injuries are to be
determined on the basis of evidence given in court.  Objectivity is thus
preserved and the public does not have to concern itself with extraneous
philosophies that some would impose on the judicial process.

[69]        
I have concluded that I must be cautious about accepting Mr. Currie’s
evidence, in the absence of independent corroborating evidence.  As of trial,
the accident itself was a significant number of years in the past.  Mr. Currie
did not recall that, in the weeks after the accident, he saw Dr. McConville,
not Dr. Rawson.  There is no independent corroboration for his evidence that he
injured his lower back in the accident.  Rather, Dr. McConville’s notes and the
fact that he ordered an x-ray of the thoracic and upper lumbar spine suggest
otherwise.  I think it unlikely that Mr. Currie would have been permitted to
drive himself to Fraser Canyon Hospital after the accident if his head and neck
had been flexed down, pointing at the ground, as he described, and I have
concluded that this is an illustration of a tendency on Mr. Currie’s part to
exaggerate.  I do not think he has a good memory for details, and this is
reflected in the differences in the histories recounted by Dr. Rawson and Dr.
Grypma, for example.  From time to time, important evidence (for example, about
what happened when Mr. Currie was at Fraser Canyon Hospital emergency and about
Mr. Currie reaching a “plateau” in his recovery) was elicited from Mr. Currie
through leading questions.  Some of his discovery evidence (for example,
concerning how much time he was now spending driving, as compared with before
the accident, and concerning his neck problems) was inconsistent with his
evidence at trial.

[70]        
I accept Mr. Currie’s evidence that, on the day of the accident, his
neck and upper and mid-back were very painful.  I also accept his evidence that
he sustained a bruise on his head in the accident.  I accept his evidence that
he continued to experience considerable pain in his neck and back in the weeks
following the accident, and I find that this was the reason for his visits to
Dr. McConville on September 26 and October 3, 2006.  I accept his evidence that
he took a few weeks off of work following the accident, and worked mostly from
home.  I also accept his evidence that he did not go back to playing hockey
until mid-February 2007, and did not return to playing golf until about July
2007.

[71]        
Mr. Dahlgren relies on the medical opinions of Dr. Rawson and Dr. Sheik
to support Mr. Currie’s position concerning his injuries, and argues that I
should reject Dr. Grypma’s opinion evidence.

[72]        
However, there are problems with Dr. Rawson’s opinion evidence.  She
only examined Mr. Currie once in connection with his injuries, on December 13,
2007.  This, of course, is long after the accident.  The purpose of the visit was
preparation of a report in connection with litigation, not treatment.  The
nature of the examination Dr. Rawson carried out on December 13, her objective
findings and the diagnosis she made that day are all unknown, because her
clinical records are lost.  She testified that some of the clinical records she
reviewed in connection with the preparation of her report were illegible. 
These included the diagnosis made at Fraser Canyon Hospital the day of the
accident, and some of Dr. McConville’s notes of his examinations of Mr. Currie
on September 26 and October 3, 2006.  Much of her information about Mr. Currie’s
injuries came from Mr. Currie himself.  She assumed that he was unable to play
golf or hockey for a year.  This assumption is false based on Mr. Currie’s
evidence at trial.  She assumed that he “required” chiropractic treatment for a
year.  This assumption is false.  Mr. Currie’s last chiropractic treatment
before Dr. Rawson examined him on December 13, 2007 was in April 2007, and he
had a total of four treatments in 2007.

[73]        
The only diagnosis Dr. Rawson makes as of December 13, 2007 is
“chronic mechanical back pain,” and her report is focussed on Mr. Currie’s
complaints of lower back pain.  She says nothing about the neck pain Mr. Currie
described at trial.  Dr. Rawson’s report provides no foundation for her opinion
of “mechanical back pain,” and she provides no reasoning linking that
conclusion with the accident.

[74]        
Given those problems with Dr. Rawson’s report and her opinion evidence,
I have concluded that I cannot give her evidence much weight.

[75]        
Moreover, Dr. Rawson and Dr. Sheik do not agree on a diagnosis, and
their opinions do not support one another.  They also do not support the
conclusion I am being asked to draw, namely, that Mr. Currie continues as of
trial to suffer neck and back pain caused by injuries he sustained in
the accident.  Dr. Sheik’s opinion is inconsistent with Dr. Rawson’s opinion
that Mr. Currie had been left with a permanent disability on account of his
back, and with Mr. Currie’s evidence about reaching a “plateau.”

[76]        
Although Dr. Sheik states in his report that one of the injuries Mr.
Currie sustained in the accident was mechanical back pain, Dr. Sheik did not
come to that conclusion independently, but simply took it from Dr. Rawson’s
report.  He concluded that Mr. Currie had sustained only soft tissue injuries
to his back in the accident, and that the back pain was not bothering Mr. Currie
as much as during the first year after the accident, implying that Mr. Currie’s
condition had improved.  What Dr. Sheik described, that Mr. Currie had only
occasional flare ups of back pain usually related to heavy lifting or bending, is
consistent with the cause identified by Dr. Grypma for Mr. Currie’s back pain –
degenerative disc disease and the aches and pains that come with normal aging.

[77]        
Dr. Sheik concluded that, as of November 2011, Mr. Currie was still
experiencing the effects of a left-sided sterno-cleido-mastoid muscle injury
from the accident.  That was the only condition he identified in his report.  As
I noted above, Dr. Sheik’s clinical notes reflect some uncertainty, since he presumes
an injury.  Dr. Sheik did not explain why Dr. McConville made no mention of
this, or how the examination findings of the emergency doctor at Fraser Canyon
Hospital or of Dr. McConville might be consistent with such an injury.  He also
did not explain the difference of opinion between him and Dr. Rawson (who does
not mention the neck as a problem as of December 2007).

[78]        
Dr. Grypma does not agree with Dr. Sheik’s opinion.  He also does not
agree with Dr. Rawson.  In Dr. Grypma’s opinion, Mr. Currie sustained only the
mildest form of soft tissue injury – grade I – and should have been expected to
recover fully within a relatively short period – weeks – after the accident. 
In his opinion, none of Mr. Currie’s current symptoms is related in any way to
the accident.

[79]        
However, one of the planks on which Dr. Grypma’s opinion rests is his
assumption that Mr. Currie was back playing hockey a month after the accident. 
Dr. Grypma repeats this at least four times in the “Impression and
Recommendations” section of his report, where he sets out his conclusions and
his reasoning.  Given its repetition, I conclude that Dr. Grypma’s assumption
that Mr. Currie was back to playing hockey a month after the accident was an
important factor in his conclusion that Mr. Currie suffered a grade I (or mild)
soft tissue injury to his neck and upper-mid back in the accident, which
typically heals in approximately four to six weeks.

[80]        
However, I find that this assumption is wrong, and that in fact Mr.
Currie did not return to playing hockey until mid-February 2007, approximately
five months after the accident.  I find therefore that both Dr. Grypma and Dr.
Rawson are wrong about when Mr. Currie began playing hockey after the accident. 
Their opinions lack a foundation in the evidence I have accepted.

[81]        
In argument, Mr. Dahlgren submitted that I should accept Dr. Rawson’s
opinions in preference to Dr. Grypma’s.  He criticized Dr. Grypma for not
undertaking independent interviews of Mr. Currie’s other doctors and for not
doing what Mr. Dahlgren argued was a more comprehensive and detailed interview
of Mr. Currie, during Dr. Grypma’s examination.  For example, Mr. Dahlgren
argued that Dr. Grypma should have asked Mr. Currie specific questions about
whether Mr. Currie had particular problems during the first 48 hours after the
accident, something Mr. Dahlgren argued would be “highly relevant.”  I note
that there is no evidence that Dr. Rawson embarked on such a course, or that
Dr. McConville did either.  There is no evidence that Dr. Sheik did the kind of
far-ranging interviews Mr. Dahlgren argues Dr. Grypma ought to have done before
expressing his opinions.  These criticisms of Dr. Grypma are not persuasive.

[82]        
However, I have other concerns about Dr. Grypma’s report.

[83]        
Dr. Grypma certifies that he was aware of his duty as an expert to
assist the Court and not be an advocate for any party, and that he had made his
report in conformity with that duty.  Dr. Grypma’s report includes a section
headed “Inconsistencies.”  In some of the discussion in this section, Dr.
Grypma comments on some of the symptoms that Mr. Currie described and says that
there was “no anatomical explanation” for them.  This is unobjectionable, and
within the scope of Dr. Grypma’s area of expertise.

[84]        
However, Dr. Grypma makes other observations that are either outside the
scope of his expertise or are unnecessary (or both).  For example, he writes: 
“Mr. Currie states that he hit his head on the windshield with a rear-end
accident with his seat-belt on.  I find this highly unusual.”  Such
observations attack Mr. Currie’s credibility, and are in the nature of argument. 
They have no place in an expert report from a medical expert, especially where
the expert has certified he understands his duty is not to be an advocate for
any party.

[85]        
Moreover, when referring to Dr. Woodhurst’s September 28, 2007
consultation report, Dr. Grypma observes that Dr. Woodhurst stated that Mr.
Currie has never come to injury or any harm.  Dr. Grypma makes this observation
twice in his report, and relies on Dr. Woodhurst’s statement to support his
conclusions that Mr. Currie’s injuries were minor and healed quickly.  Dr. Grypma
is correct that Dr. Woodhurst made this statement, but Dr. Grypma has taken it
completely out of context.  Dr. Woodhurst was not talking about Mr. Currie
never having come to injury or harm in a motor vehicle accident.  Rather, he
was talking about Mr. Currie never having come to injury or harm as a result of
his epileptic seizures.  Dr. Grypma’s references to this part of Dr.
Woodhurst’s report are misleading.

[86]        
In the result, I have not found the medical opinion evidence to be very
helpful.  Dr. Rawson and Dr. Sheik do not agree.  I have concluded I cannot
place much weight on Dr. Rawson’s opinion, and Dr. Sheik’s opinion is premised
on an unproven assumption.  On the other hand, Dr. Grypma’s opinion is also
premised on an assumption (that Mr. Currie returned to playing hockey a month
after the accident) that is inconsistent with evidence I have accepted, and
there are other aspects of Dr. Grypma’s opinion that lead me to conclude he
probably discounted the nature and severity of Mr. Currie’s injuries.

[87]        
I find that, as a result of the accident, Mr. Currie sustained a bump on
his head (which had no lasting effect) and, more seriously, injuries to his neck
and upper and mid-back.  These injuries are consistent with Mr. Currie’s
evidence and the evidence from Fraser Canyon Hospital and Dr. McConville’s
notes.  I am not prepared to find that Mr. Currie also sustained an injury to
his lower back as a result of the accident.  Rather, I conclude that this has
not been proven on a balance of probabilities.  In my view, the evidence
supports a conclusion that Mr. Currie sustained mild to moderate soft tissue
injuries to his neck and to his upper and mid back as a result of the accident.

[88]        
I find that, as a result of the injuries he sustained in the accident, Mr.
Currie took some time off work.  When he returned, he modified his work, and
spent much less time driving a truck and much more time in the office.

[89]        
I find that Mr. Currie continued to feel the effects of the injuries to
his back and neck until at least mid-February 2007, when he had recovered
sufficiently to return to playing hockey.  Playing hockey as an adult involves
much more than simply gliding unimpeded on ice.  I am not prepared to find that
Mr. Currie had fully recovered by mid-February 2007, because Mr. Currie
sought chiropractic treatment in March and April 2007, and he had still not
returned to playing golf.

[90]        
However, I find that by September 2007, twelve months after the
accident, Mr. Currie had substantially recovered from the injuries he sustained
in the accident.  This is supported by the complete absence of any mention of
either the accident or any problems with his neck and back in the consultation
reports of Dr. Javidan and Dr. Woodhurst from late September 2007.  I find
that, to the extent that, as of trial, Mr. Currie continued to experience
occasional neck pain and occasional back pain, the causes are most likely
degenerative disc disease and the normal effects of aging (and I accept Dr.
Grypma’s opinion in this respect), and not injuries sustained in the accident.

(b)      Non-pecuniary Damages

[91]        
There is no dispute concerning the principles applicable to the
assessment of non-pecuniary damages.  They are conveniently summarized in Stapley
v. Hejslet, 2006 BCCA 34, at paras. 45-46 and Hoang v. Smith
Industries Ltd., 2009 BCSC 275, at paras. 32-33.

[92]        
Mr. Dahlgren submits that Mr. Currie should be awarded non-pecuniary
damages in the range of between $70,000 and $100,000.

[93]        
Mr. Dahlgren relies on Crane v. Lee, 2011 BCSC 898
(plaintiff sustained soft tissue injuries to her neck and back and a herniated
disc in her lower back; her back injuries persisted for almost six years after
the accident and were made worse by activity; she was awarded non-pecuniary
damages of $100,000); Gosselin v. Neal, 2010 BCSC 456 (plaintiff
sustained soft tissue injuries to her neck, right shoulder, low and mid back;
she had frequent headaches and difficulty sleeping; she was continuing to feel
the effects of her injuries four years after the accident; she was awarded
non-pecuniary damages of $100,000); Poirier v. Aubrey, 2010 BCCA
266 (the Court of Appeal increased the award for non-pecuniary damages from
$60,000 to $100,000 for a plaintiff whose injuries led to chronic pain that
affected all aspects of her life, including her ability to earn an income); Kardum
v. Asadi-Moghadam, 2011 BCSC 1566 (plaintiff sustained soft tissue
injuries in two accidents, resulting in chronic pain, headaches and sleep
disturbances; he was awarded $70,000 in non-pecuniary damages); Hosking
v. Mahoney, 2009 BCSC 803 (plaintiff suffered injuries to her cervical
spine, upper back and shoulders; her medical expert (a specialist in physical
and rehabilitation medicine) diagnosed her condition as severe soft tissue
injuries in the cervical spine and upper portions of both trapezii, and the
prognosis was guarded; plaintiff continued to suffer the effects of the
injuries five years post-accident; court found that she had suffered a mild to
moderate soft tissue injury to her cervical and upper thoracic area, superimposed
on an already symptomatic condition; plaintiff was awarded non-pecuniary
damages of $80,000, less 25% as attributable to other causes); and MacKenzie
v. Rogalasky, 2011 BCSC 54 (plaintiff sustained soft tissue injuries to
his neck and back and seven years after the accident continued to experience
chronic pain; he had to leave a position as head chef and was no longer able to
live the active lifestyle he had enjoyed pre-accident; he was awarded $100,000
in non-pecuniary damages).

[94]        
Mr. Dahlgren submits that Mr. Currie’s injuries and prognosis are
similar to those in these cases.  He argues that Mr. Currie’s symptoms have
persisted despite the passage of five years since the accident, that he has
been required to adjust his life permanently to accommodate his injuries and
that he experiences almost daily pain and discomfort.

[95]        
On the other hand, Mr. McKechnie submits that the case law suggests a
range of non-pecuniary damages for minor soft tissue injuries of between $2,000
and $18,000.  He cites Vuong v. Wong, 2007 BCPC 172 (plaintiff
suffered a grade II neck injury and recovered in two months; plaintiff was
awarded damages of $2,000); Snesar v. Black Top Cabs Ltd., 2005
BCPC 393 (plaintiff suffered minor soft tissue injuries and recovered in six
weeks; he was awarded damages of $2,000); Ostovic v. Foggin, 2009
BCSC 58 (plaintiff suffered soft tissue injuries to his neck and back, which
were found to be substantially resolved within seven months of the accident;
non-pecuniary damages were $7,500); Quartey-Harrison v. Klusiewich,
2011 BCSC 1054 (plaintiff suffered injuries to his neck and back; he had to
take more frequent breaks at work and missed time (which he had to make up) for
physiotherapy treatments; court concluded he had essentially recovered from his
injuries by about 20 months after the accident; non-pecuniary damages were
$18,000).

[96]        
I also note that in Hoang, the plaintiff (who suffered
soft tissue injuries to his neck and back) was awarded $19,000 in non-pecuniary
damages.  The court found that the plaintiff’s back symptoms had resolved
within a year of the accident, and that, almost three years after the accident,
the intensity of his neck pain and headaches had decreased, but had not
disappeared entirely.

[97]        
Mr. McKechnie also cites Hunter v. Yuan, 2010 BCSC 1526,
where the plaintiff (diagnosed with grade II soft tissue injuries) was awarded
non-pecuniary damages of $35,000.  However, Mr. McKechnie argues that, on the
facts, the plaintiff’s injuries and symptoms were considerably more extensive than
Mr. Currie’s.

[98]        
Based on my findings concerning the nature of Mr. Currie’s injuries and
the period of his recovery, I conclude that Mr. Currie is entitled to an award
for non-pecuniary damages in the sum of $22,000.  The cases cited by Mr.
Dahlgren, which could support a substantially higher award, are
distinguishable, in view of my findings.  Mr. Currie was able to return to his
favourite leisure activities within a reasonable period after the accident. 
The fact that Mr. Currie is no longer out on the road regularly, driving a
truck, is not, after September 2007, attributable to the accident, in my
opinion.  In any event, Mr. Currie would have been required to spend his time
in the office, and not out on the road, whether or not he had been involved in
the accident, because he was prohibited from driving for a substantial period
after his brain surgery in November 2007.  On the other hand, many of the cases
cited by Mr. McKechnie involve less serious injuries and a much shorter
recovery period than what I have concluded is the case for Mr. Currie.

(c)      Past and Future Loss of Income and Loss of
Earning Capacity

[99]        
Mr. Dahlgren submits that Mr. Currie should be awarded $30,000 for past
loss of income and $30,000 for future loss of income, based on what he argues
are losses incurred by Jim & Joe’s.  He submits further that, even if I
conclude the company has no losses, Mr. Currie is nevertheless entitled to
compensation for loss of earning capacity.  Mr. Dahlgren submits there is a
real possibility that Mr. Currie may lose $10,000 to $15,000 annually, should
he be required to find a new job, and an appropriate award under this heading
would be $75,000.

[100]     Mr. Currie
admitted that he had no past income loss.  Despite that, Mr. Dahlgren argues
that he should be compensated because of the additional expense incurred by Jim
& Joe’s when Mr. Currie moved into the office more or less full time.  Mr.
Dahlgren submits the amount involved is about $2,100 per month, for a period of
approximately two years.  In support of his position, he cites Zen v.
Readhead, 2011 BCSC 190, where Fenlon J. observed (at para. 75) that “a
personal plaintiff is entitled to recover a business loss suffered by a company
which he controls if the loss is proven and is directly linked to the injuries
sustained.”

[101]     However,
as I noted above, there were no corporate financial statements in evidence at
trial.  Based on the very little information available concerning the company’s
revenues – Mr. Currie’s personal tax returns – those revenues appear to be
essentially unchanged after the accident.  The mere fact that the company
incurred an expense does not mean that the company suffered a loss,
since Mr. Currie’s efforts in the office may have been a better and more
productive use of his skills and time (in terms of generating revenue) than
driving a truck, and more than offset any expense.  Moreover, Mr. Currie is not
the sole shareholder (although he owns the majority of the shares), and I have
no information or analysis about how this particular business expense might or
could affect Mr. Currie’s income from the business.

[102]     Accordingly,
I am not prepared to conclude that the company suffered a loss, sufficient to
support the claim being made for compensation for past and future income loss,
in the complete absence of some convincing evidence of the existence of a loss. 
I find that no loss, directly linked to the injuries sustained, has been proven.

[103]     Mr. Currie’s
claim for damages for past and future income loss, premised on expenses being
incurred by Jim & Joe’s, is, therefore, dismissed.

[104]     I turn
then to Mr. Currie’s claim for loss of future earning capacity.

[105]     For an
award under this head of damages to be made, Mr. Currie must demonstrate a
substantial possibility that lost capacity will result in pecuniary loss.  A
future or hypothetical possibility will be taken into consideration as long as
it is a real and substantial possibility and not mere speculation.  See Perren
v. Lalari, 2010 BCCA 140, at paras. 4, 30-32; Ruscheinski v. Biln,
2011 BCSC 1263, at para. 114.

[106]     A
plaintiff who can demonstrate a diminishment in earning capacity but who cannot
demonstrate any substantial possibility that the lost capacity will result in a
pecuniary loss is not entitled to damages.  See Gosselin v. Neal,
at paras. 65-66.

[107]     If a
plaintiff discharges the burden of proving a substantial possibility that lost
capacity will result in pecuniary loss, then the plaintiff may prove
quantification of that loss either by an earnings approach or by a capital
asset approach.  See Perrin, at para. 32 and Ruscheinski,
at paras. 115-117.

[108]     Mr.
Dahlgren argues that Mr. Currie’s injuries have negatively affected his
employability and says that Mr. Currie is therefore entitled to compensation
for that loss.  He submits that Ms. Shivji’s evidence shows that Mr. Currie is
no longer competitively employable, and argues that (even though Mr. Currie’s
income has not been reduced) Mr. Currie is still entitled to compensation
because, for the rest of his life, some occupations will be closed to him and
he is less marketable as an employee.

[109]     The
difficulty I have with Mr. Dahlgren’s argument is that there is no evidence
that Mr. Currie faces any risk of having to look for employment in the
future.  Mr. Currie has worked for the same company – Jim and Joe’s – since he
was in his late teens and he is now the majority owner of the business.  No one
gave evidence that the business was in decline or facing an uncertain future. 
There is no basis in the evidence to find a real and substantial possibility
that Mr. Currie’s lost capacity (such as it might be, given my findings
concerning his injuries) will result in a pecuniary loss.  In other words, I
find there is no substantial possibility that Mr. Currie’s lost capacity will
result in an actual income loss, now or at any time in the future.

[110]     Accordingly,
Mr. Currie’s claim for damages under this heading is dismissed.

(d)      Special Damages

[111]     Mr. Currie
claimed special damages in the sum of $1,560 for the cost of massage therapy
and chiropractic treatments, as well as fuel for travel to and from these
appointments.

[112]     However,
the expenses claimed were incurred in 2010 and 2011.  Based on my findings
concerning when Mr. Currie substantially recovered from the injuries he
sustained in the accident, they are not recoverable.

Disposition

[113]     In
summary:

(a)      I
award Mr. Currie non-pecuniary damages in the sum of $22,000; and

(b)      the
balance of his claims are dismissed.

[114]    
If counsel wish to make submissions concerning costs, they must, within
30 days of the date of this judgment, take steps to do so.  Otherwise, Mr.
Currie will have his costs on Scale B.

“Adair
J.”