IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120713

Docket: S79897

Registry:
Kelowna

Between:

Michael Anthony
Culos

Plaintiff

And

Nicole Crystal
Chretien

Defendant

Before:
The Honourable Mr. Justice Rogers

Reasons for Judgment

Introduction

[1]            
Six years ago the plaintiff was traversing a crosswalk in downtown
Kamloops, B.C., when he was struck by the defendant’s car. Neither party saw
the other until the moment of impact. Liability for the collision is in issue
because, while the defendant acknowledges her own fault, she says that the
plaintiff was contributorily negligent for failing to look out for his safety.

[2]            
The severity of the impact and its effect on the plaintiff’s health are
also in issue. The issue of damages is complicated by the fact that the
plaintiff’s ongoing complaints include low back pain and that he suffered from
periodic low back pain before the collision. The damages issue is made yet more
difficult because, although the plaintiff has suffered no loss of income from
his active life as a housing developer in the six years since the accident, he
asserts that the long-term sequelae of his injuries will cause him to take
early retirement. He seeks a large sum in compensation for that loss of earning
capacity.

The Facts

Credibility

[3]            
The plaintiff and the defendant testified at trial. Both parties
delivered their evidence in a calm and measured manner. Neither was shaken on
cross-examination. After comparing their evidence to the photographs of the
scene of the collision, I am satisfied that taken in isolation from one another,
their stories do not offend against common sense or the physical evidence. I am
left with the impression that the plaintiff and the defendant did their best to
accurately describe what led to the collision. Neither party tried to mislead
the court. Their versions of the event do, however, differ. I find that the
conflicts in their evidence arise from their different perspectives on what
happened and from the natural degradation of their memory of events that
happened six years ago.

The Collision

[4]            
The accident happened in Kamloops, B.C., at about 2:30 p.m. on August
29, 2006. The plaintiff was a pedestrian. He was walking north on the eastern
sidewalk of 3rd Avenue. Third Avenue has one lane in either direction; those
lanes are divided by a steel superstructure that supports an overhead
pedestrian walkway. The plaintiff was heading to the intersection with Lorne
Street. Lorne Street runs generally north-south and has one lane in either
direction. The plaintiff intended to cross Lorne Street on the zebra crosswalk
that was painted on the surface of Lorne Street at its intersection with 3rd
Avenue.

[5]            
The defendant was also going north on 3rd Avenue. She was driving her
car: a small and elderly Geo Metro. The defendant intended to turn right onto
Lorne Street. The defendant had a stop sign ahead of her at the intersection of
3rd and Lorne. At that stop sign, her view of traffic on Lorne was obscured in
part by the lower end of the pedestrian bridge that divided the lanes on 3rd
and also by a building to her left on the very far side of 3rd Avenue.

[6]            
The parties were sober and in good health. The weather was fine; the
roads were bare and dry.

[7]            
The plaintiff testified that when he reached the intersection, he looked
to his left and right for traffic on Lorne and saw none. He noticed a woman
approaching in the crosswalk. She was headed in his direction. This woman
passed by him before he set foot in the crosswalk. He did not recall if he
stopped or hesitated at the edge of the sidewalk before he stepped out onto
Lorne. He said that he walked out into the intersection. He testified that he
got about halfway across the first lane of Lorne Street when, without warning,
the defendant’s car struck him. He testified that he had not been aware that
the defendant’s car was in the vicinity. He maintained that the first point of
contact was between the front bumper of her car and his left thigh just above
the knee. He said that the impact threw him into the air and over the car’s
hood. He landed on his right shoulder on the windshield, and then rolled down
over the front fender on the passenger side. The plaintiff testified that he
came to rest on the ground with his body in the clear but his legs under the
car and in jeopardy of being run over if the vehicle did not stop. He said that
the car did stop before hitting his legs and that the driver ran over to him as
he lay on the ground. He recalled that she said words to the effect of “I’m
sorry, sir, I didn’t mean to run you over”. The plaintiff said that he climbed
back onto his feet and walked back to the sidewalk. There, he and the defendant
exchanged information.

[8]            
The defendant testified that she stopped at the stop line at the
intersection of 3rd and Lorne. She was signaling her intention to turn right
onto Lorne. She waited at the stop line for a lady in the crosswalk to finish
crossing Lorne. Then she pulled forward into the intersection with her car
cocked to its right in preparation to make the turn onto Lorne. She came to a
second narrow white line painted across the mouth of 3rd where it joins Lorne
and stopped there. The defendant said that at that point she looked to her left
and behind in order to check for traffic coming along Lorne. She said that she
started to put her car in motion while she was looking to the left and back.
She heard a bang sound. She applied her brakes and swung her head forward. She
said that she saw the plaintiff standing in front of her car with both of his
hands on the hood. She could not say whether the plaintiff’s chest ever hit the
hood of her car, but she was quite sure that the plaintiff’s feet did not leave
the ground, and she was adamant that the plaintiff was not vaulted over her
hood, onto her windshield, and then onto the ground beside her car. She
testified that she put her car’s transmission into neutral and applied her
handbrake. She undid her seatbelt and got out to speak to the plaintiff. They
moved to the sidewalk, exchanged information, and went on their way.

[9]            
The plaintiff did not see the defendant’s vehicle at any time before it
hit his body, and the defendant never saw the plaintiff ahead of hearing the
sound of impact and seeing him in front of her car.

Aftermath

[10]        
The plaintiff walked from the scene of the accident to his office about half
a block away. He felt dazed. Roughly an hour later, the plaintiff and his
construction manager, Mr. Dyrdal, traveled from Kamloops back to their
home base in Kelowna. Mr. Dyrdal drove while the plaintiff dozed or slept
in the passenger seat. This was unusual: they were traveling in the plaintiff’s
truck, and when they used the plaintiff’s vehicle, he almost always did the
driving himself.

[11]        
On arrival at his home in Kelowna, the plaintiff had a glass of wine,
took a couple of Ibuprofen tablets and went to bed. The next morning the
plaintiff awoke feeling generally stiff and sore. His shoulders, neck, lower
back and left hip were painful. The plaintiff was optimistic that he would
recover quickly. He managed his pain with Ibuprofen and severely restricted his
activities. Normally, the plaintiff would have gone into his Kelowna office at
8 or 8:30 a.m., would have worked a full day and gone home between 5 and 6 p.m.
He would have worked for an hour or so attending to the landscaping around his
house and the apple orchard that was then planted on his hobby farm. The
plaintiff’s symptoms did not diminish over the following days. But for those
symptoms, on the weekend after the accident, he would have followed his usual
routine of working for roughly one day on his yard and orchard.

[12]        
Four days later, the plaintiff’s symptoms were still acute, and he
decided to attend to his family doctor. The plaintiff first visited his
physician’s office on September 5, 2006. Dr. Allerydyce attended to the
plaintiff in place of his regular physician Dr. McIntosh. The plaintiff
complained to Dr. Allerydyce of pain in his shoulders, arms, neck, mid to
lower back and left hip, and of headaches. The doctor observed that the range
of motion of his shoulders, neck and back was restricted. The doctor diagnosed
multiple musculoskeletal injuries. She recommended that the plaintiff obtain
treatment by heat, massage, stretching and physiotherapy.

[13]        
In the thirteen months prior to this visit on September 5, 2006, the
plaintiff had seen Dr. McIntosh on two occasions. The first was on August
8, 2005, when the plaintiff told Dr. McIntosh that he had had two weeks of
low back pain. Dr. McIntosh diagnosed the trouble as soft tissue pain and
recommended exercise. At trial, the plaintiff had no recollection of this
visit or of having back pain then. The next visit to Dr. McIntosh was May
16, 2006, for an annual medical checkup. Between these two visits, the
plaintiff saw his chiropractor, Dr. Urness, eight times from October 28 to
December 14, 2005, and four times from March 20 to 24, 2006. He complained to Dr. Urness
of low back pain on these occasions, and he received adjustments to his lower
back. Dr. Urness recorded that the plaintiff responded well to these
adjustments. The plaintiff was unable to endorse Dr. Urness’s evidence on
this point – the plaintiff had no recollection at all of seeing the
chiropractor then or of what his complaints were at the time.

[14]        
When the plaintiff saw Dr. McIntosh for his check up on May 16,
2006, he voiced no complaints of pain in his lower back.

[15]        
During this pre-accident span, that is, from August 2005 to May 2006,
and through to the day of the accident on August 26, 2006, despite the low back
complaints recorded in his chiropractor and medical doctor’s notes, the
plaintiff continued with his usual routine of work and yard upkeep as described
above. The plaintiff also kept up with his usual routine of attending the gym
twice a week and of making two five-kilometer runs and one ten-kilometer run
per week. The plaintiff occasionally played golf and snow skied as well.

[16]        
Rather than doing as Dr. Allerydyce suggested on his first
post-accident visit, the plaintiff instead attended on Dr. Urness for
chiropractic treatment. The plaintiff complained to Dr. Urness of pain and
stiffness in his neck, shoulders, arms, mid to lower back and left leg. The
plaintiff also complained of headaches that extended from the back of his neck
over the top of his head. Dr. Urness assessed the plaintiff and determined
that he did, in fact, have a restricted range of motion in the joints of his
neck, shoulders and back. Dr. Urness treated the plaintiff with stretching
and spinal adjustments. Dr. Urness treated the plaintiff until November
2007. Over that span of a year and two months, the plaintiff’s symptoms abated
somewhat, but did not disappear.

[17]        
The plaintiff overlapped his visits to the chiropractor with
physiotherapy treatments. He commenced physiotherapy in January 2007 and
continued until June 2008. During that time, his complaints were of pain
in his neck and mid to lower back, and of pain in his left leg. By the time the
plaintiff stopped attending physiotherapy, his recovery had reached a plateau.

[18]        
In June 2009, the plaintiff sought treatment from a massage therapist.
The plaintiff continues to attend for massage therapy on an irregular basis. He
takes massage when his neck and back become particularly symptomatic. Massage
affords him temporary relief. It has not resulted in further recovery; massage
ameliorates his symptoms but does not hold out the promise of a cure.

[19]        
In September 2009, the occupational therapist Ms. Ruggiero assessed
the plaintiff’s functional capacity. She found that the plaintiff’s residual
neck and low back symptoms limited his ability to engage in medium to heavy
work. She determined that the plaintiff was able to engage in sedentary to
light work, but she felt that the plaintiff’s ability to sit, stand, stoop,
bend, lift and carry medium weights was nevertheless restricted. Ms. Ruggiero
recommended that the plaintiff acquire an ergonomic office chair, a movable
computer monitor arm, and a sit/stand desk. She felt that these items would
lessen the plaintiff’s discomfort at his office. She recommended that he have
the benefit of 10 sessions with a kinesiologist or exercise therapist at a cost
of $60 per lesson, and that he be allowed 12 physiotherapy sessions per year at
a cost of $55 per session indefinitely. Ms. Ruggiero opined that the
plaintiff’s residual symptoms limited his ability to do the yard maintenance
and outside household chores that he had performed before the accident. Ms. Ruggiero
reported that the cost of replacing the 12-15 hours per week of
spring/summer/fall outdoor work, plus an additional 30 hours of winter work
would be on the order of $6,450 per year.

[20]        
According to the plaintiff’s testimony, before he was injured and during
the growing season, he typically spent one day on the weekend and an hour or so
every week night doing things that could be generally categorized as yard work.
Those things included running a mower and cleaning up after the crew that,
prior to the accident, he had hired to attend to his orchard. The plaintiff has
since converted his orchard to a vineyard. He has not participated in the
physical operation of the vineyard. The plaintiff agreed under
cross-examination that the majority of the tasks associated with the operation
of the vineyard are tasks that, accident or not, he would have hired someone to
do. The plaintiff was therefore unable to testify as to what tasks and how much
time he would have spent on the vineyard had he not been involved in the
accident.

[21]        
The physiatrist, Dr. Vallentyne, testified at trial. Dr. Vallentyne
assessed the plaintiff in March 2009. Dr. Vallentyne opined that before
the accident the plaintiff had degenerative disk disease in his neck. He found
that that degeneration was asymptomatic. Dr. Vallentyne testified that it
is not unknown for persons with severe spinal degeneration to nevertheless be
completely functional and free of symptoms of pain or limitation. Dr. Vallentyne
opined that the plaintiff likewise had degeneration and osteoarthritis in his
lower back before the accident but that, based upon the plaintiff’s complaints
of low back pain in August and October to December 2005 and again in March
2006, that disease was periodically symptomatic. Dr. Vallentyne said that
the degeneration of the plaintiff’s low back was, therefore, symptomatic before
the accident. He went on to say that:

As a result of intermittent
mechanical low back pain predating the 2006 CPA, Mr. Culos had
pre-existing functional limitations including the need to minimize heavy
lifting/carrying as well as repetitive bending/twisting.

[22]        
Oddly, in a later report, Dr. Vallentyne said this:

…Absent the index accident, Mr. Culos
would have been fit to continue performing heavy home and yard maintenance
activities…

[23]        
As for ongoing symptoms, Dr. Vallentyne testified that the accident
caused Mr. Culos’s previously asymptomatic degenerated neck to become
symptomatic, and that the symptoms of his degenerated low back were made worse.
Dr. Vallentyne felt that because Mr. Culos was still experiencing
these symptoms almost three years after the accident, they were most likely
permanent. Notwithstanding these symptoms, however, Dr. Vallentyne
considered Mr. Culos still fit to carry on in his current capacity as the
owner and operator of his property development company. He recommended that Mr. Culos
take ten sessions of instruction with an exercise therapist targeting his neck
and back, and that he attend with a golf professional familiar with techniques
required to deal with chronic back troubles. The doctor thought that a
six-month gym pass would be useful to Mr. Culos and that instead of
running he should use an elliptical trainer. Dr. Vallentyne did not
comment on the notion that Mr. Culos would benefit from a dozen
physiotherapy treatments every year for the rest of his life.

[24]        
In summary, Dr. Vallentyne felt that Mr. Culos’s previously
asymptomatic neck and periodically symptomatic low back had been aggravated by
the accident; that his pains were subject to activity-related flare-ups; that
although he was able to carry on with his professional life, his ability to do
heavier outside yard tasks was limited by those symptoms; and that his condition
was likely permanent.

[25]        
Mr. Culos was also examined by the orthopaedic specialist, Dr. Grypma.
That examination was done on June 13, 2011. Dr. Grypma did not dismiss the
proposition that Mr. Culos continues to suffer from symptoms, but he felt
that they were not related to the motor vehicle accident. Dr. Grypma
attributed these symptoms to the pre-existing degeneration of Mr. Culos’s
spine. He said:

Mr. Culos still complains of enduring symptoms involving
his neck and lower back. He describes his neck symptoms as stiffness and
pulling and he describes his low back symptoms as a tightness and stiffness.
These symptoms are very common in the aging neck and back population and are
likely related to degenerative disc disease changes to the neck and lower back,
as well as some deconditioning.

It is my impression that Mr. Culos’
enduring symptoms are most likely due to degenerative changes and less likely
due to ongoing symptoms following the subject motor vehicle accident.

[26]        
Under cross-examination, Dr. Grypma acknowledged that the medical
records gave no indication that Mr. Culos had ever had any difficulty with
his neck before the accident and that many people with degenerative disk
disease in the neck have no symptoms.

Current Status

[27]        
The plaintiff testified that at present his neck and back are painful on
a daily basis. He takes Ibuprofen three and sometimes four times per day to
manage his pain. The pains become worse with activity and prolonged sitting or
standing. Bending and lifting will aggravate his pain. The plaintiff has tried
to play golf since the accident, but found that the twisting motion of a golf
swing caused a significant increase of his pain. He has not tried skiing and he
no longer runs. The plaintiff follows a routine of home exercises for his neck
and back. As noted, he attends massage therapy approximately weekly. Massage
temporarily alleviates his neck and back pain, but it does not give him long
term relief.

[28]        
The plaintiff testified that he gets tired out from his persistent pain.
He said that he has less stamina for office work, and instead of working from 8
or 8:30 a.m. to 5 or 6 p.m., he now goes into his office around 10 a.m. and
leaves by 3 or 3:30 p.m. The plaintiff said that he has less energy for
managing his high-energy, high-risk land development business. When he gets
home from his work, he said that he is usually too tired and sore to consider
socializing with friends or business associates.

[29]        
The plaintiff’s collateral witnesses – his construction manager, real
estate manager, and office manager – all confirmed that since the accident, the
plaintiff has not been as focussed or as dedicated to his business as he was
before. They also confirmed that the plaintiff’s attendance at the office has
decreased; that his energy and drive have been diminished; and that when he is
in the office or driving on the road, they have seen him move slowly as if in
pain and shift about in his seat as if to ease his back.

[30]        
The plaintiff’s construction manager and sales manager also testified
that for many years before the accident the plaintiff was the driving force
behind his land development business. It was the plaintiff who conceived the
idea of new projects and who spearheaded new developments. The business
followed a pattern of completing one project while working on the construction
of another, while at the same time ushering new projects through their initial
stages of land acquisition, zoning changes and pre-sales. Both witnesses said
that before the accident, the development company always had a project or two “in
the pipeline” ready to be pursued as current projects were completed.

[31]        
These two men and the plaintiff testified that in the summer of 2006,
the plaintiff’s company was just finishing a project on Lorne Street in
Kamloops and were in the midst of constructing another project in Kamloops
called Hillside Lofts. The company was also in the planning stages for the
construction of a four-phase project called Landmark, also in Kamloops. The
evidence clearly demonstrated that notwithstanding the plaintiff’s injuries,
his company was able to finish the Lorne Street development, bring the Hillside
Lofts development to a successful conclusion, and to successfully build the
first two phases of the Landmark project. The evidence also demonstrated that
the company took on one wholly new project after the accident. That was a
community housing development conceived and funded by the provincial government
and located in Nelson, B.C. The plaintiff’s company started construction of the
Nelson project after the accident, and the expectation is that the project will
be finished on time and on budget in mid-September 2012.

[32]        
That record of accomplishment aside, the plaintiff and his support staff
all testified that the company does not have any plans for new developments to
be done after the Nelson project is complete and after Landmark’s third and
fourth phases are finished. The plaintiff testified that some associates in
Nelson had invited him to participate in another development in that community
but that he had turned them down. The plaintiff said that he declined that
opportunity because he simply has not got the energy necessary to shepherd that
proposal through to completion. The plaintiff’s real estate manager testified
that he, too, had suggested that the plaintiff take on some new work in the
Kelowna area, but that the plaintiff just seemed to be uninterested in taking
on new work.

[33]        
In addition to the development business, the plaintiff is a part owner
of a restaurant and a liquor store in Kamloops. He testified that he acquired
his interest in those businesses as an adjunct to his housing developments
nearby. He said that those businesses lie outside of his area of expertise and
that they require a level of managerial supervision that he does not have the
energy to provide. He has therefore caused those two businesses to be listed
for sale.

[34]        
The plaintiff testified that over the next few years, he expects to
gradually retire from business life. He nevertheless intends to acquire either
a $1 million helicopter to lease out and use personally or a $200,000
helicopter for his personal use only. The plaintiff did not aver that he planned
to hand management of Landmark’s final two phases over to some other developer.

[35]        
The plaintiff has no plans to sell his rural property – an operation for
which he hires a full-time housekeeper, a full-time yard worker – or to cease
operation of his vineyard – an operation that requires the plaintiff to
contract with a service supplier and which, according to the plaintiff, at best
may break even.

[36]        
The plaintiff has not acquired an ergonomic office chair, a computer
monitor arm, or a sit/stand desk. The plaintiff has ruled out playing golf, and
so has not pursued therapeutic sessions with a golf professional. The plaintiff
is satisfied with his exercise routine and has not engaged an exercise
specialist. Neither has the plaintiff taken any physiotherapy since 2009. As
noted, the plaintiff has hired a full‑time worker to look after his yard
during the growing season. Since the accident, he has not required help around
his property during the wintertime.

Parties’ Positions

Plaintiff

Liability

[37]        
The plaintiff’s position on liability is simple: he was a pedestrian and
was established in a crosswalk. The defendant had an opportunity to see and
avoid the plaintiff, but instead she ran into him. The plaintiff maintains that
the accident was entirely the defendant’s fault.

Damages

[38]        
The plaintiff says that his injuries are permanent. He acknowledges that
he had not lost income since the accident, but says that he has suffered a past
and future loss of yard work capacity. He also says that his injuries have
curtailed his participation in his businesses and that there is a real
possibility that, as a result of those injuries, he will have to take early
retirement. The plaintiff claims recovery of the cost of the physiotherapy,
chiropractic and massage treatments he has taken since the accident and for
ongoing physiotherapy expenses, as well as the cost of the ergonomic office
equipment that the occupational therapist recommended to him.

[39]        
The plaintiff summarizes his claims as follows:

[40]        
The plaintiff seeks leave to apply for judgment on the issue of tax
gross-up if the plaintiff’s award for future care award is different than
$113,000.

Defendant

Liability

[41]        
The defendant admits her negligence in not seeing the plaintiff before
her car struck him. She says, however, that the plaintiff’s negligence
contributed to the event because her car was an immediate hazard to him when he
started out into the intersection. The defendant says that liability should be
assessed equally between the parties.

Damages

[42]        
The defendant argues that the plaintiff’s injuries were modest, that he
recovered reasonably quickly, and that any lingering symptoms are attributable
to his pre-existing degenerative disease rather than to the accident. She says
the fact that the plaintiff did not suffer a loss of income after the accident,
and that he continued to manage his development projects through to completion,
puts paid to any suggestion that the accident diminished his earning capacity.
The defendant maintains that the plaintiff has not shown that, due to the
accident, he requires care in the future and would have the court make no award
under that head of loss. She says, finally, that the plaintiff has failed to
mitigate his loss by failing to follow the occupational therapist’s
recommendation for ergonomic office equipment (this must be taken to be an
argument in the alternative to the defendant’s position that the accident did
not cause the plaintiff any business-related losses).

[43]        
The defendant says that the plaintiff is entitled to an award as follows:

[44]        
All reduced by 50 percent to account for the plaintiff’s contributory
negligence.

Discussion

Liability

[45]        
I accept the plaintiff’s evidence that he was at or very near the edge
of the end of the sidewalk on 3rd Avenue when the unknown lady finished
crossing Lorne Street and walked past him. I also accept the defendant’s
evidence that she was stopped at the stop line on 3rd as she watched the same unknown
lady finish crossing the street. Given those findings, it follows that at the
same moment that the plaintiff was standing at the edge of the sidewalk on 3rd,
the defendant was stopped at the stop line on 3rd. At that moment, the
defendant’s car was behind the plaintiff and somewhat to his left.

[46]        
I find that when the unknown lady finished crossing Lorne, both parties
began to move. The plaintiff entered the crosswalk. At the same time, the
defendant moved into the intersection with her car angled to its right. The
plaintiff carried on while the defendant stopped briefly at the thin white line
painted across the extreme end of 3rd where it joins Lorne. Neither
party saw the other. The defendant looked to her rear left to check for traffic
on Lorne. At that moment, the plaintiff was established in the crosswalk and
was directly in front of the defendant’s car. The defendant then began to move
her car forward without first looking in the direction that she was traveling.
In the result, the front of her car struck the plaintiff.

[47]        
The defendant’s submission that the plaintiff was contributorily
negligent is superficially attractive – after all, her car was there to be seen.
The presence of her car in the intersection at the same time that the plaintiff
was in the crosswalk could be thought to constitute an immediate hazard for the
plaintiff.

[48]        
The flaw in the defendant’s argument is this: the plaintiff was
established in the crosswalk before the defendant got underway from her second
stop to check for traffic. Had the plaintiff seen the defendant, he would have
seen her move forward from the stop line, stop at the thin white line, and look
back over her left shoulder to check for traffic on Lorne. Given his position
in the crosswalk, the plaintiff was entitled to assume that a motorist would
give way to him. He could only be found to be careless for his safety if he had
stubbornly insisted on maintaining his right‑of‑way in the face of
knowledge that an oncoming motorist was behaving in a way that indicated the
motorist would not yield to him. Had the plaintiff been looking at the
defendant, he would not have seen anything about her behavior that would have
led him to believe that she would not yield to him. That is because he would
have seen her move from the stop line on 3rd to the thin white line and stop
again while looking over her left shoulder. No one in the plaintiff’s position
would have had a reasonable suspicion that the defendant, whose driving up to
that moment had been careful and considerate, would nevertheless go forward
without first looking at where she was going.

[49]        
In short: the defendant’s behavior ahead of the collision was not such
as to put a reasonable pedestrian in the plaintiff’s position on notice that
the defendant was not going to yield to the pedestrian. That hypothetical
pedestrian would have reasonably assumed that if the defendant was careful to
check for traffic before entering Lorne, she would likewise be careful to look
in front of her before she put her car in motion and moved out onto Lorne.
Nothing in the evidence suggested that the plaintiff ought to have appreciated
that the defendant would do as she did.

[50]        
Consequently, I find that the collision was entirely the fault of the
defendant.

Non-pecuniary

[51]        
I find that the plaintiff accurately described his injuries and the
symptoms he experienced after the accident. The fact that his left hip was sore
when he went to see his physician several days after the accident and that his
left thigh just above the knee was not bruised tell me that the defendant’s car
hit him on his left hip, not his left thigh. I find that the impact gave the
plaintiff a severe body-wide jolt. The impact caused the pre-existing but
asymptomatic degenerative disease in his neck to become symptomatic. Absent the
accident, the plaintiff may have lived out his entire life without any neck
symptoms. The accident caused his neck to be painful, and the pain has
persisted to this day. I accept Dr. Vallentyne’s opinion that the
plaintiff’s neck symptoms are permanent.

[52]        
I find that the plaintiff’s memory of his pre-accident back function is
faulty. The symptoms of pain that he felt in his lower back in the
approximately one year before the accident must have been significant. I find
that is so because the plaintiff is clearly not one to go running for medical treatment
for minor or transitory complaints – the fact that he held off for five days
after the accident before seeking medical help supports that proposition. For
that reason, I accept Dr. Vallentyne’s opinion that even if the accident
had not happened the plaintiff’s periodically symptomatic low back pain and his
pre-existing degenerative disease in that region would have, as Dr. Vallentyne
said, required him to “minimize heavy lifting/carrying as well as repetitive
bending/twisting”. That said, I find that the accident accelerated and worsened
the plaintiff’s low back symptoms; “accelerated” in the sense of causing the
pain to be constant rather than periodic, and “worsened” in the sense that the
low back pain prevented the plaintiff from participating in his usual
activities to a much greater degree than before.

[53]        
I cannot accept Dr. Grypma’s opinion that the plaintiff’s present
symptoms are not related to or caused by the accident. I find that the flaw in Dr. Grypma’s
opinion is his dismissal without discussion of the indisputable temporal
connection between the onset of the plaintiff’s neck and back symptoms
immediately after the accident and his continuing symptoms throughout of pain
in exactly those same regions. The link is, of course, the fact that those
symptoms have persisted from then until now. The physicians agree that the
accident did not accelerate the degeneration of the plaintiff’s neck and back –
it follows that the plaintiff’s pains are not a result of increased degeneration.
If the symptoms occurred after the accident, it is reasonable to conclude that
they were caused by the accident, and the doctors agree on that as well. What Dr. Grypma
does not explain is how it is that the plaintiff’s symptoms transitioned from
pains caused by the accident to pains caused by his degenerative disease, and
how it is that even without the accident, the plaintiff would nevertheless now
be suffering from those symptoms. I find that there is a causal link between
the accident, the onset of the plaintiff’s neck pain and the worsening of his
low back symptoms, and the persistence of those symptoms through to the present
day.

[54]        
Currently the plaintiff’s neck and back symptoms are present on a daily
basis. They flare up when the plaintiff does anything strenuous. The symptoms
aggravate, frustrate and tire the plaintiff out. They have reduced his
enjoyment of recreational activities. The symptoms are a permanent feature of
the plaintiff’s life. After discounting the plaintiff’s claim to account for
the fact that absent the accident his lower back would have troubled the
plaintiff periodically, I find that the proper award for non-pecuniary damages
in this case is $75,000.

Past Loss of Income/Past Reduction of Earning Capacity

[55]        
The parties agree that as of the trial date, the plaintiff has not
suffered a loss of income due to the accident. He has no claim for past income
loss or reduction of past earning capacity.

Past Loss of Yard Work Capacity

[56]        
I accept Dr. Vallentyne’s opinion that the plaintiff’s pre-accident
periodically symptomatic lower back degenerative disease compromised his
capacity to do repetitive lifting, carrying, bending and twisting. Those are
activities commonly associated with yard work. I find, therefore, that even
before the accident, the plaintiff’s ability to do yard work was less than
optimal. Even if the accident had not happened, the plaintiff would have been
able to some but not all of the yard cleanup and maintenance required on his
rural property.

[57]        
I find that the accident worsened the plaintiff’s low back symptoms and
caused new symptoms to appear in his neck. I find that the combination of the
aggravated low back and new neck symptoms further reduced but did not eliminate
the plaintiff’s ability to do yard work in the pre-trial period. The plaintiff
can still run his tractor with its mower attachment, for example, but his
tolerance for such work is now much reduced. The wage the plaintiff pays to his
full-time groundskeeper is not a good measure of his loss under this head of
damages. That is because the groundskeeper clearly does a wider variety of
tasks on a much more intense schedule than the plaintiff ever did pre-accident.

[58]        
I am reluctant to use the occupational therapist Ms. Ruggiero’s
valuation of this loss. That is because Ms. Ruggiero did not inquire
closely about precisely what kind of work the plaintiff did and how often he
did it before the accident, and what sorts of things he can still do
notwithstanding his residual symptoms. For example, she assumed that the
plaintiff would require 30 hours of paid yard work assistance during the winter
time, when the plaintiff’s evidence demonstrated that he plows his driveway
himself and that he has no need of hired help to look after his property in the
winter.

[59]        
Putting a value to such an amorphous loss is at best an imprecise
business. Doing the best I can with the imperfect evidence before me, I fix the
quantum of the plaintiff’s pre-trial loss of yard maintenance capacity at
$20,000.

Special Damages

[60]        
The defendant did not seriously challenge the plaintiff’s claim for the
cost of the physiotherapy, chiropractic and massage treatments that the
plaintiff has received since the accident. The physiotherapy and chiropractic
treatments held out the hope of being curative; the massage treatments have
given the plaintiff periodic transitory relief from his symptoms. The massage
treatments are, therefore, much like analgesic medication in the sense that
they give relief but do not offer a cure for the plaintiff’s symptoms. All of
the plaintiff’s pre-trial, out-of-pocket expenses for those three treatment
modalities are recoverable by him, and he shall have judgment for those sums.

[61]        
The plaintiff is not entitled to the cost of the MRI or the magnetic
belt that he claims. The former is not recoverable because the massage
therapist who recommended it to the plaintiff did not have the qualifications
to either prescribe the scan or to interpret its result. The magnetic belt
sounds like a bit of Old West quackery. No evidence at trial supplied a
foundation for a finding that this belt was necessary to control or cure the
plaintiff’s complaints.

Future Reduction of Earning Capacity

[62]        
In Perren v. Lalari, 2010 BCCA 140, Garson J.A. described the
standard of proof that a plaintiff must meet in order to receive damages for a
loss of earning capacity. At para. 23, Madam Justice Garson adopted and
emphasized the following language of Mr. Justice Donald in Steward v.
Berezan, 2007 BCCA 150, 64 B.C.L.R. (4th) 152:

[17]      …The claimant bears the onus to prove at trial
a substantial possibility of a future event leading to an income loss, and the
court must then award compensation on an estimation of the chance that the
event will occur: Parypa ¶ 65.

(Emphasis
added by Garson J.A.)

[63]        
Garson J.A. went on to summarize the governing principles in the
following passages:

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

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

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

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

[32]      A plaintiff must always prove, as was noted
by Donald J.A. in Steward, by Bauman J. in Chang, and by Tysoe
J.A. in Romanchych, that there is a real and substantial possibility of
a future event leading to an income loss. If the plaintiff discharges that
burden of proof, then depending upon the facts of the case, the plaintiff may
prove the quantification of that loss of earning capacity, either on an
earnings approach, as in Steenblok, or a capital asset approach, as in Brown…

(Emphasis
added by Garson J.A.)

[64]        
In the present case, each party relies on an aspect of the evidence that
favours their position to the exclusion of the evidence that supports the
other. The plaintiff concentrates upon the evidence that before the plaintiff’s
injury, his business always had projects “in the pipeline”, lined up to develop
one after another, and upon the plaintiff’s evidence that he no longer has the
stamina necessary to drive his development business forward. The plaintiff
relies as well upon the evidence of the managers of the office, construction
and real estate arms of his business. They all testified that the plaintiff’s
appetite for work is much less now than it was before the accident. The
plaintiff offered little if any evidence to explain how it was that, despite
his injuries, he was able to shepherd the Lofts project, the first two phases
of Landmark, and the Nelson housing development through to their successful
completions.

[65]        
On the other side, the defendant concentrates on the plaintiff’s business
success since the accident and says that his performance over the six years
since the accident strongly supports the proposition that whatever injuries he
may have sustained in the accident, they were not, and are not now, so severe
as to interfere with his capacity to take care of his business. The defendant
attempts to explain away the lack of future business in the plaintiff’s book by
suggesting that he was ready to retire in any event and that his decision to
wind down his business activity was motivated by the cancer scare he
experienced in 2003 and the dissolution of his marriage in the following year. The
defendant did not, however, adduce any evidence to support the notion that
either cancer or divorce had a significant impact on the plaintiff’s earning
capacity. The defendant also asserted that the general downturn in the real
estate market since 2008 depressed the plaintiff’s business opportunities. The
defendant did not, however, make any effort to undermine the evidence that
since the accident, the plaintiff has in fact turned down business
opportunities of the sort that he would, under ordinary circumstances, have
pursued.

[66]        
It is the court’s responsibility to attend to all of the evidence in the
case: it is a mistake for the court to focus, as the parties have done, on only
that evidence that supports whatever position one might favour. I find that the
plaintiff’s business success since the accident was made possible by the
plaintiff working through considerable discomfort in his neck and back. The
Lofts and Landmark projects were already underway when the accident happened –
the plaintiff had little choice but to carry on with those projects. The Nelson
project was new business that came along after the accident. It is telling that
the plaintiff was able to manage that project through to its near completion.
It is also telling that the plaintiff did not add any new burdens to his book
of business. Given the evidence of his managers, and his own evidence, all of
which I accept as accurate, I am driven to the conclusion that the plaintiff’s
capacity to drive his business forward has been negatively impacted by the
long-term effect of his accident-related injuries. The plaintiff’s capacity to
conceive, foster and shepherd development projects from start to finish has, I
find, been diminished as a consequence of his injuries. Instead of managing
three or four projects simultaneously on the go (albeit at different stages of
maturity), the plaintiff’s capacity has been reduced to managing one or two
projects. That is to say, I find that the plaintiff’s tolerance for doing
business has been reduced but not eliminated. The plaintiff has therefore
satisfied the burden of proving that there is a real and substantial
possibility that, as a consequence of his accident-related injuries, his
capacity to earn income has been reduced.

[67]        
That said, whether the plaintiff does, in fact, fully retire from
business in the near future will, of course, be his own choice. I find,
however, that if he does fully retire so soon, it will be because he wants to,
not because he must do so owing to his injuries.

[68]        
The plaintiff’s pre- and post-accident annual income averaged $290,000
(rounded). The evidence at trial did not describe the profit margin the
plaintiff realized on any of his development projects. It is therefore
impossible to connect any particular project to any particular portion of the
plaintiff’s income. It is likewise impossible to find that the loss of capacity
to manage one or two projects at any given time equates to a loss of a specific
amount of income from those foregone projects.

[69]        
Sometimes the assessment of damages for loss of earning capacity is as
much an art as a science. This case falls into that category. In my opinion,
the proper amount of damages under this head of loss is $300,000.

Future Cost of Care/Yard Work Capacity

[70]        
The plaintiff has known for several years of Ms. Ruggiero’s
recommendation that he acquire an ergonomic chair, a computer monitor arm, and
a sit/stand desk. He has the resources to buy those items at anytime. As of the
trial date, the plaintiff has not bought those items. His evidence at trial did
not touch on whether he would buy them in the future. Likewise, the plaintiff
has known for several years that Dr. Vallentyne has recommended that he
attend to an exercise therapist and a golf professional, but he has not done so
and he evinced no desire to do so in the future. It would, in my view, be the
height of inefficiency to give the plaintiff an award for care items that, on
the evidence, he will not acquire or employ. The plaintiff’s claims for office
furniture and exercise and golf therapy must therefore be dismissed.

[71]        
Ms. Ruggiero also recommended twelve physiotherapy treatments per
year. She postulated that the plaintiff would benefit from physiotherapy for
intermittent symptom flare-ups. Instead of physiotherapy, the plaintiff has
relied on massage to manage periodic symptom flare-ups. In my opinion, the
plaintiff benefits from massage therapy in much the same way that he benefits
from taking over‑the‑counter pain medication. It is therefore
reasonable that he should be awarded a sum to compensate him for the cost of
periodic massage treatments in the future. I would allow 12 massage treatments
per year at a cost of $65 per treatment. According to the multiplier supplied
by the plaintiff’s actuary, the current capital value of that expense is
$11,500 (rounded), and that will be the amount of the plaintiff’s award for
cost of care.

[72]        
The plaintiff’s injuries are, as noted earlier, permanent and will
interfere with his ability to look after his yard and garden. If the past loss
element of this claim is $20,000 over six years, then the plaintiff’s annual
loss going forward will be $20,000 / 6 = $3,333. I find that as a consequence
of increased infirmity due to natural aging, the plaintiff would inevitably
have required assistance around his property in any event. I will somewhat
arbitrarily fix the plaintiff’s period of loss under this head as between the
trial date and his age 70. According to the tables supplied by the plaintiff’s
actuary, the plaintiff’s loss of yard and maintenance capacity from trial to
age 70 is the product of ($9,741 / $1,000) * $3,333 = $32,466. I will round
that up to $32,500 and award that sum to the plaintiff under this head of loss.

[73]        
In the event that the parties feel it is necessary to assess a tax gross-up
on these future awards and they are unable to agree upon a figure, they will be
at liberty to apply for an order fixing that amount.

Conclusion

[74]        
The defendant is entirely at fault for the accident. The plaintiff is
entitled to judgment as follows:

together with interest on those items that attract pursuance
to the Court Order Interest Act, R.S.B.C. 1996, c. 79.

Costs

[75]        
Subject to any application the parties may wish to bring concerning
costs, the plaintiff shall have his costs on Scale B.

“P.J.
Rogers, J.”

The
Honourable Mr. Justice Rogers