IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120709

Docket: M103849

Registry:
Vancouver

Between:

Manjit Singh
Sandher

Plaintiff

And

Jaswant Singh
Binning and Patrick Liam Chessel

Defendants

Before:
The Honourable Madam Justice Fenlon

Reasons for Judgment

INTRODUCTION

[1]            
The 35-year-old plaintiff, Manjit Singh Sandher claims damages for
injuries sustained in a head-on collision three years ago. Liability for the
accident is admitted. The main issue is whether Mr. Sandher’s ongoing hand
problems were caused by the accident. The secondary issue is assessment of
damages.

THE ACCIDENT

[2]            
On the morning of January 10, 2009, Mr. Sandher was in the front
passenger seat of a large van travelling east on the Fraser Highway to a job
site where he was employed as a construction labourer. A car travelling in the
opposite direction suddenly crossed the centerline and collided head-on with
the van. Mr. Sandher’s hand struck the interior of the vehicle with
sufficient force to fracture the third and fourth metacarpals of his right
hand, the bones in the palm of the hand that are connected to the middle and
ring fingers.

INJURIES SUSTAINED IN THE ACCIDENT

A.             
Soft Tissue Injuries

[3]            
The parties agree that Mr. Sandher suffered soft tissue injuries to
his neck, back, chest and right shoulder that gradually improved and had
largely resolved within months of the accident. I find that Mr. Sandher had
largely recovered from the soft tissue injuries about six months after the
accident, but they continue to cause intermittent pain in his neck and back when
he engages in heavy activity. Mr. Sandher described his soft tissue
injuries as “90% recovered” by September 2011.

B.             
Right Hand Injury

[4]            
Both parties tendered the opinion evidence of an orthopaedic surgeon with
a sub-specialty in hand surgery. Dr. Vaisler was called as a witness by
the plaintiff, and Dr. Gropper by the defendant. The plaintiff’s treating hand
surgeon, Dr. Guichon, also testified.

[5]            
There is common ground among these three medical experts that Mr. Sandher
sustained closed fractures of his right middle and ring finger metacarpals as a
direct result of the car accident. They also agree that he continues to have
some swelling and to report pain, weakness and lack of grip strength in his
right hand. The experts disagree on what has caused these problems. Determination
of the issue of causation must begin with a review of the plaintiff’s symptoms
after the fractures healed.

[6]            
I find that Mr. Sandher continued to have pain, weakness, and
limitations in his right hand throughout 2009. In January 2010, one year after
the accident, his treating surgeon, Dr. Guichon, diagnosed stenosing
flexor tenosynovitis of the right middle and ring fingers, commonly called
triggering. This condition is caused by swelling of the flexor tendons or of
the lining of the fibrous tunnels which hold the tendons adjacent to the bony
structures of the hand. Swelling of either the tendons or the lining of the
tunnels makes it difficult for the tendons to glide through the tendon sheath,
causing them to become restricted or “stuck” in the flexed position with the
finger sticking into the palm.

[7]            
Dr. Guichon performed surgery to correct the triggering on February
21, 2011. Generally, 90% of such procedures are successful, eradicating pain
and the triggering associated with stenosing flexor tenosynovitis, Mr. Sandher
was one of the unfortunate 10% of patients for whom the operation was not
entirely successful. Although the triggering was alleviated, he continued to
have pain over the surgical site and limitations in the use of his hand, symptoms
found by all three experts. As Dr. Vaisler put it, Mr. Sandher
“merely traded the problem of a tight tunnel [for] a scarred tunnel.”

[8]            
Dr. Vaisler, Dr. Gropper, and Dr. Guichon were in
agreement that triggering:

s    
often occurs without any specific cause;

s    
commonly occurs in association with inflammatory conditions such
as arthritis, gout, or diabetes;

s    
can be caused by forceful repetitive grip activities such as
hammering; and

s    
can be caused by trauma, although trauma is not a common cause of
the condition.

The doctors also agree that when trauma is the cause of
triggering:

s    
it would usually occur within months of the injury; and

s    
it is unusual to see triggering occur a year after the trauma.

[9]            
Dr. Gropper’s opinion that the triggering was not caused by the
hand fractures was primarily based on his assumption that the onset of
triggering symptoms occurred one year after the trauma. In cross-examination, Dr. Gropper
acknowledged that when he prepared his first report he did not have available
to him a clear record of Mr. Sandher’s hand symptoms in 2009 after his cast
was removed and he returned to work. That is understandable given that the
hand-written medical records of the family doctor, Dr. Singh, were virtually
illegible and Dr. Gropper’s report pre-dated Dr. Singh’s summary of
his records.

[10]        
Dr. Singh’s records indicate that Mr. Sandher was experiencing
pain in his hand throughout 2009:  on January 28, March 25, May 11, May 29,
July 29, and August 14. In addition to the reports of hand pain Mr. Sandher
reported weakness in his hand on April 27, pain in his fingers on May 11, and
stiffness in his hand on the July 29 and August 14 visits. After the August 14
visit, Dr. Singh referred Mr. Sandher to Dr. Guichon who saw the
plaintiff on September 2, 2009. After ordering an EMG and ruling out carpal
tunnel syndrome, Dr. Guichon diagnosed triggering in January 2010.

[11]        
When Dr. Gropper was asked about these reports of ongoing pain, he
observed that there was no clear indication in the family doctor’s records of
the exact location of Mr. Sandher’s right hand pain or the exact physical
findings on examination. Dr. Gropper therefore questioned how Dr. Vaisler
could conclude that these earlier reports of pain were related to triggering.

[12]        
Dr. Vaisler agreed with Dr. Gropper that onset of triggering
one year after trauma makes it improbable that the trauma caused the condition.
However, Dr. Vaisler disagreed that the onset of the condition coincided
with its diagnosis. He said that when a patient presents with stenosing flexor
tenosynovitis the condition can start with pain when gripping, and on
examination a doctor can feel a bit of clicking over the tender area, although
the patient cannot appreciate that. At that stage, the finger does not get
locked in the bent position. Then the condition progresses to the point where
the swelling is significant enough that the tendon gets stuck in the tunnel and
“the patient has to pull the finger back either forcefully on their own or use
their other hand to straighten it.”  He went on to say that the finger will get
to a point where it is actually stuck and it will not move. In Dr. Vaisler’s
view, “triggering is a clinical symptom and finding [along] that gradation. But
the whole spectrum of the disease process is broader than that.”

[13]        
Although Dr. Vaisler acknowledged that the family doctor’s record
of hand pain and stiffness lacked precision about the location of the pain and
nature of the physical findings, Dr. Vaisler concluded nonetheless that
the “continuum of pain, weakness of grip, and disability” throughout the period
leading up to the diagnosis of triggering in January 2010 made it likely that
the earlier symptoms in 2009 were due to the onset of triggering.

[14]        
Dr. Guichon testified that he did not see triggering in June 2009,
but said that the plaintiff was complaining at that time of pain and swelling. Dr. Guichon
found inflammation but did not find a degenerative condition or carpal tunnel
syndrome when he operated in February 2011.

[15]        
The plaintiff has the burden of proving on a balance of probabilities
that the accident was the cause of the triggering and the ongoing difficulties
following surgery for that condition. The test for causation is set out in Athey
v. Leonati, [1996] 3 S.C.R. 458 [Athey] and Resurfice Corp. v.
Hanke, [2007] 1 S.C.R. 333. In Athey, the Court held at 467:

It
is not now necessary, nor has it ever been, for the plaintiff to establish that
the defendant’s negligence was the sole cause of the injury. There will
frequently be a myriad of other background events which were necessary
preconditions to the injury occurring. … As long as a defendant is part
of the cause of an injury, the defendant is liable, even though his act alone
was not enough to create the injury. There is no basis for a reduction of
liability because of the existence of other preconditions: defendants remain
liable for all injuries caused or contributed to by their negligence.
[Underlining in original.]

Applying the “but for” test, and having considered all
of the medical evidence, I conclude that, while causation cannot be established
with certainty, it is more probable than not that the fractures caused the
triggering.

[16]        
The plaintiff was advised to have surgery to alleviate the triggering
and he followed that advice. I accept Dr. Vaisler’s opinion that the pain,
weak flexion and reduced hand function Mr. Sandher now experiences are due
to post-operative scar tissue involving the tendons of his middle and ring
fingers.

[17]        
In summary on this issue, I find the hand symptoms Mr. Sandher continues
to experience were caused by the defendant’s negligence.

DAMAGES

A.             
Non-Pecuniary Damages

[18]        
 An award of non-pecuniary damages compensates a plaintiff for loss of
amenities, pain, suffering, and loss of enjoyment of life.

[19]        
In Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19 [Stapley]
(at para. 46), the Court of Appeal outlined the factors a trial judge
should consider when assessing such damages:

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

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life;

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

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

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s
stoicism (as a factor that should not, generally speaking, penalize the
plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA
54).

[20]        
Awards of damages in other cases provide a guideline only. I must apply
the factors listed in Stapley to Mr. Sandher’s particular case. I
note that in general, the plaintiff was a poor historian; a man of few words
who tended to repeat rote phrases about his injuries and to exaggerate at
times.

[21]        
Mr. Sandher experienced the pain of fractured bones, the
inconvenience of a cast for several weeks, pain following tenoplasty surgery,
ongoing hand pain and stiffness, and pain from soft tissue injuries. The soft
tissue injuries largely resolved within six months of the accident with
occasional flare-ups on heavy activity; I find for the following reasons that
those flare ups and hand symptoms have had a relatively small impact on his
day-to-day life, social activities and general enjoyment of life.

[22]        
In relation to the impact of the injuries on his recreational
activities, the plaintiff claims that he is unable to lift weights, something
the plaintiff said in his direct-examination that he did four to five times a
week. However, in cross-examination, he conceded that before the accident he
only lifted weights at most two to three times a week when he could find time
after work. In addition, the plaintiff now has two young children, and he has
less time and energy to spend at the gym, quite apart from the impact of his
injuries.

[23]        
The other recreational activities the plaintiff claims have been
affected by his injuries are walking and camping. Although Mr. Sandher
continues to engage in those activities, he testified that he may walk and camp
less often now than before the accident. Again, the plaintiff conceded that he
does not have the same amount of time to do these activities because of his
young family and the fact that he is often tired after returning from work.

[24]        
There was some evidence to suggest a loss of ability to do outdoor work.
The plaintiff described helping his cousin Narendra Riar enclose an area below
an upper level patio before the accident. That involved clearing weeds and
leveling the area as well as lifting and carrying heavy paving stones, work Mr. Sandher
did without difficulty. Mr. Riar and Mr. Sandher contrasted that occasion
with his inability at the end of February or early March 2011 to help his
cousin do similar work constructing a shed. Mr. Riar testified that the
plaintiff had difficulty carrying the wood for the shed and was unable to use a
hammer due to his hand injury. However, under cross-examination Mr. Sandher
agreed that he had undergone tenoplasty surgery for his trigger finger only a
week or two before trying to help Mr. Riar with the shed.

[25]        
The plaintiff relies on cases that suggest a range of damages of $50,000
to $75,000 and submits that non-pecuniary damages of $75,000 is an appropriate
award: Dobre v. Langley, 2011 BCSC 1315; Lumanlan v. Sadler, 2008
BCSC 1554; Tsougrianis v. Marrello, [1998] B.C.J. No. 2087 (S.C.).

[26]        
The defendant relies on cases that suggest a range of damages of $25,000
to $40,000: Neef v. McGregor, [1990] B.C.J. No. 2761 (S.C.); Janota-Bzowska
v. Lewis, [1996] B.C.J. No. 279 (S.C.); Doucette v. Thompson,
2002 NBQB 313; Patoma v. Clarke, 2009 BCSC 1069.

[27]        
Taking into account the differences between the plaintiff’s situation
and the fact patterns in the cases relied on by the parties, I am of the view
that the plaintiff should be awarded $40,000 in non-pecuniary damages.

B.             
Past Wage Loss

[28]        
At the time of the accident Mr. Sandher was working as a labourer
for B.S. Framing. He did a lot of the heavy lifting on the job site, unloading materials,
carrying lumber, and securing wood to frame the one or two-storey homes. Mr. Sandher
earned $13 an hour.

[29]        
The parties agree that Mr. Sandher should be compensated for lost
wages from the date of the accident, January 10, 2009, to April 8, 2009, the
weeks during which Mr. Sandher was recovering from the broken bones and
was off work entirely.

[30]        
Although the parties do not calculate the loss in exactly the same
manner, they are in substantial agreement on quantum. The plaintiff submits a
loss of $7,400 gross, the defendant $7,000 gross; the difference between them
flows from the assumption each makes about the number of hours worked per month.
I set the gross loss of income at $7,410, based on a loss of 160 hours of work
in January and 200 hours of work in February, March and April.

[31]        
The more difficult question is how to assess past loss of earning from
the end of this period to the date of trial. On April 9, 2009, Mr. Sandher
resumed employment, but not with B.S. Framing. Although none of his treating
physicians told him at the time that he could not work as a framer, Mr. Sandher
did not believe he was capable of performing the tasks involved in that work
and did not attempt to return to his old position. Instead, he found full-time
work at Pacific Crown Produce Distributors as an order picker and delivery
person. That job required him to fill customers’ orders by selecting boxes of
vegetables and fruit from the company’s storehouse, loading those onto skids,
binding them with packing wrap, and arranging for them to be loaded onto a
truck. Mr. Sandher eventually also used a company truck to deliver orders to
various outlets in the lower mainland.

[32]        
Mr. Sandher continued to be employed with Pacific Crown as of trial,
earning $14.50 an hour plus benefits. He has not missed any days of work since
he started with Pacific Crown three years ago, other than about two weeks following
his tenoplasty surgery in 2011.

[33]        
The defendant submits that Mr. Sandher has not proved any past wage
loss beyond the initial 3 months he was off work, first, because he could have
returned to his previous work as a framer and chose not to; and second, because
he is earning more now per hour than he did as a framer. I will deal with each
of these submissions in turn.

(1)           
Has Mr. Sandher proved an impaired capacity to work?

[34]        
The defendant’s submission that Mr. Sandher could have returned to
his previous employment as a framer raises the question of whether the
plaintiff’s ability to work has been impaired to any degree by his injuries.

[35]        
The plaintiff must prove on a balance of probabilities the causal
connection between the accident-related injuries and impairment of his ability
to work: Smith v. Knudsen, 2004 BCCA 613 at para. 36. The
defendant submits the plaintiff could have gone back to his job as a framer but
chose not to because he wanted a job that had more regular hours, did not
involve as much travel to work, and provided medical benefits for his family.

[36]        
The plaintiff’s treating doctors did not address, at the time, Mr. Sandher’s
capacity to return to work as a framer, but the medical evidence establishes
some swelling and tenderness as well as the ongoing weakness, stiffness and
pain in his palm when he tried to grip. Further, a November 2011 work capacity
evaluation by Jeff Padvaiskas, an occupational therapist, supports Mr. Sandher’s
self-assessment that he was unfit to work as a framer. Mr. Padvaiskas
opined that:

[Mr. Sandher] experiences limitations with the related
grip demands for dexterity/handling demands.

In terms of work specific performance, Mr. Sandher did
not demonstrate minimal ability for competitive hammering activity. His performance
with assembly activity relied heavily on the left (i.e. heavier handling,
torquing with a wrench).

…

Mr. Sandher demonstrated increased difficulty with
prolonged or repetitive right handling demands, particularly at heavier weight
levels.

…

On the basis of work capacity testing, Mr. Sandher is
not suited for his previous work as a framer carpenter.

…

Mr. Sandher is capable of work activity in the
sedentary, light, select medium and select lower heavy strength categories…
he is able to perform limited, light and selected medium strength tasks.

Mr. Sandher demonstrated lifting asymmetries and
modified methods to promote tolerance. At times his application of adapted
strategies introduced safety concerns (i.e. rushing, reduced control of the load).
During work simulation tasks, his compensatory movement patterns appeared to
contribute to back symptoms.

Mr. Sandher’s strength
handling difficulties became increasingly prominent at the 40 pound level and
above and/or with sustained holding or handling demands.

[37]        
Although Mr. Padvaiskas acknowledged that the plaintiff was
“guarding” his hand during the assessment, he found him to be consistently
putting forward a good effort.

[38]        
I find that the plaintiff has proved on a balance of probabilities that
the injuries he sustained to his dominant hand, as well as the recurrent
flare-ups of soft tissue injuries on heavy activity, have impaired his ability
to work as a framer.

(2)           
Has Mr. Sandher lost wages to the date of trial due to his
injuries?

[39]        
The defendant submits that Mr. Sandher is earning more as an order
picker and delivery driver at an hourly rate of $14.50 than he would have earned
as a framer at $13 an hour. The defendant argues that the plaintiff’s claim to
past wage loss is predicated on two flawed assumptions:  first that Mr. Sandher
would have continued to be employed as a framer at B.S. Framing, and second,
that he would have received regular incremental increases in his hourly rate
from $13 per hour to $18 per hour by the time of trial.

[40]        
The plaintiff argues that those assumptions are supported by the
evidence of three witnesses:  first, his own testimony that he intended to
remain in the industry and hoped one day to start his own framing company;
second, the evidence of Jaswant Binning, the owner of B.S. Framing, and Baljit
Binning, the framing crew supervisor, who both testified that the plaintiff was
a good, hard working and reliable employee and that there was ongoing work available
for him with the company. Jaswant Binning also testified that the plaintiff
would have received step-by-step raises to achieve an hourly rate of $18 an
hour by January 1, 2012, the rate paid to another labourer on the framing crew.

[41]        
The plaintiff submits that damages for past wage loss are a
straightforward matter of adding up what the plaintiff earned at Pacific Crown
from April 9, 2009 to February 13, 2012, to the first day of trial ($88,032)
and subtracting it from what he would have earned at B.S. Framing but for the
accident, building in regular wage increases and using 160 hours of work per
month for December and January and 200 hours per month in other busier months
for a total of $104,740, resulting in a gross past income loss of $16,708.

[42]        
An assessment of loss of past earning capacity involves consideration of
hypothetical events. The plaintiff is not required to prove those hypothetical
events on a balance of probabilities:  the hypothetical event is to be given
weight according to its relative likelihood: Athey at para. 27.

[43]        
The defendant argues that there are a number of contingencies that
suggest Mr. Sandher would not have stayed on as a framer with B.S. Framing
in any event of the accident. First, the plaintiff’s employment at Pacific Crown
is more suited to his lifestyle now that he has a young family. The plaintiff
agreed on cross-examination that he chose to work for Pacific Crown instead of
returning to B.S. Framing in part because it is located closer to his home,
involves fewer hours of work, and is a less physically demanding job where he
receives medical benefits.

[44]        
Second, the defendant points out that Pacific Crown is located only 10
to 15 minutes from the plaintiff’s home and that it permits him to work regular
hours and to be paid for each hour he works. In contrast, his work with B.S.
Framing involved working up to 11 hours a day plus travel to many of the
locations in the lower mainland six days a week. Further, the plaintiff had no
experience in construction or framing prior to working at B.S. Framing but had
four to five years truck driving experience in India which is more consistent
with his duties at Pacific Crown.

[45]        
Third, the plaintiff would have amassed only 3 ½ years of experience at
the date of trial and would have been much less experienced than the worker who
was earning $18 per hour.

[46]        
Fourth, the defendant submits there is a reasonable probability that the
plaintiff would not have continued long-term as a labourer/framer even if the
accident had not occurred, given the high turnover rate and the physically
demanding nature of the job. Jaswant Binning, the owner of B.S. Framing,
acknowledged that it is common for an individual to work short-term as a
labourer/framer with his company.

[47]        
Fifth, the plaintiff had a history before the accident of working at
transitional jobs for short periods of time. When he first arrived in Canada
the plaintiff worked at McDonalds in Winnipeg for about nine months. He then
worked at a car wash for a short period of time before moving to Kelowna where
he worked as a landscaper for another seven to eight months. At the time of the
accident the plaintiff had only been working at B.S. Framing for approximately
nine months.

[48]        
In assessing whether the plaintiff has established a real and
substantial possibility that he would have lost earnings in the period prior to
the trial, I note that Mr. Sandher’s circumstances had changed and that he
had settled in the lower mainland, married, and had a young family to support. He
worked consistently with one employer, Pacific Crown, for more than three years
before trial.

[49]        
Taking into account all of the evidence, I find that Mr. Sandher
has established a real and substantial possibility that he would have earned
more between the date of the accident and trial but for his injuries. I accept
the relative likelihood that he would have continued in his position as a
framer between April 9, 2010 and the date of trial at 90% and assess past gross
wage loss for this period at $15,037 (90% of $16,708).

[50]        
In summary on this issue, I set damages for past loss of gross earnings
at $22,450.

C.             
Future Loss of Earning Capacity

[51]        
As set out by Dardi J. in Sandher v. Hogg, 2010 BCSC 1152:

[87]      The legal principle that governs this assessment
for loss of earning capacity is that, insofar as is possible, the plaintiff
should be put in the position he or she would have been in but for the injuries
caused by the defendant’s negligence: Lines v. W & D Logging Co. Ltd.,
2009 BCCA 106 at para. 185. Compensation must be made for the loss of
earning capacity and not for the loss of earnings: Andrews v. Grand &
Toy Alberta Ltd., [1978] 2 S.C.R. 229.

[88]      It emerges from the
recent jurisprudence of the Court of Appeal that the plaintiff must demonstrate
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; and Pallos v. Insurance Corp. of British
Columbia (1995), 100 B.C.L.R. (2d) 260 at 271 (C.A.). Regardless of the
approach, the court must endeavour to quantify the financial harm accruing to
the plaintiff over the course of her working career: Pett v. Pett, 2009
BCCA 232 at para. 19.

[52]        
The plaintiff submits that if the accident had not occurred, he would
have earned $41,700 per year based on achieving the top hourly rate for a
framer by late 2011, rather than the $31,700 he is currently earning annually
as an order picker and delivery driver. Using the earnings approach, this
represents an annualized loss of $10,000 per year to the age of retirement,
some 30-35 years from now.

[53]        
The plaintiff nonetheless proposes that it would be appropriate to use
the capital asset approach to value loss of Mr. Sandher’s future earning
capacity, using as a rough basis two years of earnings as a framer, or $80,000.

[54]        
The defendant submits that any award of damages for loss of future
earning capacity should be nominal because the plaintiff’s hand condition could
improve, and because, given the high turnover in the construction industry and Mr. Sandher’s
previous track record of changing jobs prior to the accident, it is not at all
likely that he would have continued as a framer until retirement.

[55]        
I have already addressed the latter submissions in my earlier reasons on
past loss of income. As to the question of potential for improvement, Dr. Guichon,
the plaintiff’s treating physician, initially expected an improvement over a
prolonged period of time. But after his last examination of the plaintiff in
October 2011, Dr. Guichon testified that he had ruled out any further
treatment and that he had done everything he could to improve the patient’s
pain symptoms.

[56]        
Dr. Vaisler, following a December 2011 medical examination of the
plaintiff said:

There is a definite risk that [Mr. Sandher’s]
right hand symptoms will continue to persist, aggravated especially by power
grip, power grasp, and heavy lifting for the foreseeable future.

A risk that the hand symptoms will continue does not
preclude improvement; I therefore take into account the potential for recovery
in assessing the relative likelihood of a future loss of income.

[57]        
A number of factors support a finding of a real and substantial
possibility of future loss of income. First, the functional capacity evaluation
identified problems with heavy and repetitive lifting or repetitive use of the
right hand involving gripping activities which preclude Mr. Sandher from
working as a construction labourer and in other manual work. Second, Mr. Sandher
has only a Grade 12 education. He was a truck driver and a welder in India
before immigrating to Canada six years ago. He has extremely limited English,
requiring an interpreter both in Court and to communicate with health care
providers.

[58]        
Surbjeet Mann, a co-worker at Pacific Crown testified that the plaintiff
could not lift the heavier 50-75 lb boxes and load them onto the skid. I accept
Mr. Mann’s evidence that he continues to assist the plaintiff with loading
and unloading heavier boxes and also assists him with plastic wrapping of the
fully loaded skids before they are loaded onto the trucks. Mr. Mann said
it is very important that the wrapping is tight, because the plastic wrap keeps
the boxes from moving around during transport. I find that Mr. Mann’s
assistance amounts to an informal accommodation of Mr. Sandher at his
workplace and is consistent with the evidence of Mr. Padvaiskas that Mr. Sandher
is not suited in his current condition to the demands of his employment as an
order picker.

[59]        
While I accept that all of the employees at Pacific Crown assist one
another to some extent, I find that Mr. Mann’s assistance is more directly
related to Mr. Sandher’s inability to perform some tasks due to his employment
limitations.

[60]        
Although Mr. Sandher has continued to be employed in this work for
more than three years, his employer, Joseph Kadir is not aware that other
employees assist Mr. Sandher. Mr. Kadir was unequivocal: if Mr. Sandher
cannot do the work, he will not be employed by Pacific Crown.

[61]        
If Mr. Sandher loses his job at Pacific Crown, he will be less
likely to find work such as landscaper, framer, or labourer, which would
otherwise have been open to him but for the accident. I therefore find that the
plaintiff has established a real and substantial possibility of a loss of
earnings in future as a result of his injuries. Taking into account all of the
contingencies, I assess future loss of earning capacity at $70,000 which represents
roughly two years of earnings as a framer based on an hourly wage of $15.50,
the mid-point between the $13 per hour he was earning at the time of the
accident and the $18 maximum for a labourer with B.S. Framing.

D.             
Special Damages

[62]        
The plaintiff claims special damages of $500 for prescription
medications and transportation costs to medical appointments. He has already
been reimbursed for physical therapy and prescription costs amounting to $1,252.

[63]        
Special damages must be proved. The plaintiff did not provide receipts
for specific costs to support prescription expenses and referred a number of
times to having received free samples of medications from his family doctor. Nor
did the plaintiff calculate or provide evidentiary support for transportation
costs. He testified that his friends drove him to the majority of his medical
appointments so they could act as interpreter. I conclude that the plaintiff
has not proved this claim.

E.             
Cost of Future Care

[64]        
The plaintiff seeks an award of $25,000 for cost of future care to cover
the cost of recommendations made by Mr. Padvaiskas, the occupational
therapist who conducted a functional capacity evaluation of Mr. Sandher. Those
recommendations include:

(a)           
Physiotherapy:  five to eight sessions per year at $64 per session;

(b)           
Gym membership at a cost of $428 per year for two to three years;

(c)           
Occupational therapy:  10 hours over Mr. Sandher’s lifetime to
promote functional independence at a cost of $105 per hour;

(d)           
Vocational assessment and counselling at a cost of $2,500 to $3,500;

(e)           
Interpretation/translating services of up to 40 hours at a cost of $60
per hour for a total of $2,400;

(f)             
Outdoor yard work/home maintenance of 15 to 20 hours per year at a cost
of $30 to $40 per hour for a cost of $450 to $800 yearly;

(g)           
Equipment that may be recommended by physiotherapists or occupational
therapists of $200 to $250 per year with a replacement every five years; and

(h)           
Prescription medications of $189 to $284 per year.

[65]        
Mr. Lakhani, an actuary, costed these expenses at $38,000. The
plaintiff submits that a global assessment applying a 50% contingency to the
claim for home maintenance and a nominal contingency to the other claims makes
$25,000 a reasonable award for cost of future care.

[66]        
To recover damages under this head the plaintiff must prove that there
is a real and substantial possibility that he will incur future care costs as a
result of injuries sustained in the accident. Those future expenses do not have
to be a medical necessity, but they must be medically justified and
reasonable: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at 78.

[67]        
In assessing the plaintiff’s claim for cost of future care I consider
the following:

§    
Dr. Singh, the plaintiff’s family physician confirmed on
cross-examination that he had not recommended further physiotherapy for the
plaintiff, although he described Mr. Padvaiskas’ recommendations as
necessary, reasonable and causally related to the injuries.

§    
Dr. Gropper was of the view that the plaintiff does not
require any further rehabilitation or surgical treatment.

§    
Dr. Guichon did not recommend any further treatment,
although in a supplementary report he confirmed that the recommendations made
by Mr. Padvaiskas are “reasonable to support this type of injury”.

§    
The plaintiff attended a gym and was physically active before the
accident.

§    
With respect to household tasks, the plaintiff did not report to
his general practitioner that he was unable to perform any of his non-work
activities following the accident.

§    
The plaintiff testified that before the accident he vacuumed at times
and moved the couch for his wife. He stated that it is difficult for him to
vacuum but acknowledged on cross-examination that his wife performed most of
the household tasks both before and after the accident.

§    
The plaintiff currently rents a basement suite and does not perform
any yard work or home maintenance.

§    
The plaintiff’s future care costs relating to medication are
covered by his employment benefits.

[68]        
While there is some medical justification for the expenses claimed, I
conclude that Mr. Sandher has not established a real and substantial
possibility that physiotherapy, yard work and home maintenance, and equipment
and supply expenses are going to be incurred by him in the future. Nor do I
find a real and substantial possibility that Mr. Sandher will engage in a vocational
assessment or hire interpreters to translate for him when attending appointments,
given that he has always used a friend to help him in the past. The gym
membership is an expense Mr. Sandher had before the accident

[69]        
With respect to occupational therapy recommendations, in light of the
difficulties Mr. Sandher is having functionally in his current employment,
it is reasonable that he should have some help in learning how to properly lift
and manage both his soft tissue injury flare-ups and his hand symptoms at work.
I accordingly award the sum of $1,050 to cover 10 hours of occupational therapy
under this head.

CONCLUSION

[70]        
In summary, damages are awarded as follows:

COSTS

[71]        
If the parties are unable to agree on costs, they may speak to the
issue.

The
Honourable Madam Justice L.A. Fenlon