IN THE SUPREME COURT OF
BRITISH COLUMBIA

Date: 20120730

Docket: 89607

Registry:
Kelowna

Between:

Harold Ivan George
Olynyk

Plaintiff

And

John Read Turner

Defendant

Before:
The Honourable Mr. Justice Barrow

Reasons for Judgment

[1]            
The plaintiff was involved in a motor vehicle accident on December 15,
2008. Liability is admitted. What remains is an assessment of damages.

[2]            
The plaintiff argues that the limitations he now has are a result of the
injuries he sustained in the accident and that they remain significantly
limiting in spite of his efforts to overcome them. He was employed as a
landscaper at the time of the accident and has been unable to return to that
work.

[3]            
The defendant argues that the plaintiff suffered from a pre-accident
condition that was symptomatic at the time of the accident. He argues that some
of the plaintiff’s physical limitations are manifestations of that pre-existing
condition and not due to the accident. Further, he argues that the plaintiff
has not acted reasonably to mitigate his damages. It is said that he failed to
follow medical advice regarding weight loss and exercise which, had it been
followed, would have reduced the affects of his injuries.

The Accident

[4]            
The accident occurred on a Friday afternoon. The plaintiff was
northbound on Highway 97. As he approached the intersection at Leckie Avenue,
he was struck from behind by the defendant. The plaintiff was driving an older
model pickup truck. The defendant was driving a 2002 Chevrolet Cavalier. The
force of the collision pushed the plaintiff’s vehicle into the intersection,
while the defendant veered off toward an adjacent fast food restaurant. The point
of impact on the plaintiff’s vehicle was the left rear of the box of his pickup.
The point of impact on the defendant’s vehicle was the driver’s door.

[5]            
The plaintiff’s vehicle was significantly damaged, but it was capable of
being driven. In fact, after dealing with the police and the paramedics, the
plaintiff drove it away. The defendant’s vehicle was seriously damaged, in fact
damaged beyond economic repair.

The Plaintiff’s Injuries and Treatment

[6]            
After the accident, Mr. Olynyk went home. On Monday, December 15,
2008, he saw Dr. Bobyn at a walk-in clinic. Dr. Bobyn is a family
practitioner who also takes shifts at a walk-in clinic near where Mr. Olynyk
was then living. Mr. Olynyk did not have a family doctor at the time of
the accident. He was in reasonably good health and had no reason to seek medical
treatment until the accident.

[7]            
The plaintiff complained to Dr. Bobyn of low back and neck pain, as
well as headaches. His neck was tender on palpation and he had a reduced range
of motion. Dr. Bobyn also noted that Mr. Olynyk was obese and that
his blood pressure was elevated. He prescribed medication for his blood
pressure and for reflux that Mr. Olynyk was experiencing. He diagnosed Mr. Olynyk
as suffering from cervical and lumbar strain. He prescribed Flexoral, a
medication used to combat muscle spasms, and Emtec, a caffeine-free pain
medication similar in strength to Tylenol 3. Given the physical nature of Mr. Olynyk’s
work, Dr. Bobyn told him not to return to his job for the next week and
scheduled an appointment for early January 2009. He recommended physiotherapy
and massage therapy. In Dr. Bobyn’s experience, passive therapies such as
physiotherapy and massage therapy are “hit and miss” in terms of their salutary
effect on injuries such as those sustained by the plaintiff. Nevertheless, he thought
it was worth trying and thus made the recommendation. He often tells his
patients to use their own judgment about whether to continue with such
therapies: if the treatments help, he encourages them to continue, and if not,
he recommends they stop taking them. He ordered an x-ray of Mr. Olynyk’s
cervical spine and that x-ray was taken on December 30, 2008. It showed no
fractures or other boney problems.

[8]            
On December 22nd, when Dr. Bobyn next saw Mr. Olynyk, he
repeated his recommendations about physiotherapy and massage therapy and
provided referrals for those treatments. He also asked that Mr. Olynyk be
excused from work for a further two weeks. The only complaints Dr. Bobyn
noted during that visit were neck pain and headaches. He did, however, order an
x-ray of the cervical spine.

[9]            
Mr. Olynyk next saw Dr. Bobyn as scheduled on January 5, 2009.
His told Dr. Bobyn that his neck was still painful, worse than ever in
fact. He said that he was still experiencing headaches. He said that he had
received some massage therapy but no physiotherapy. According to Dr. Bobyn, his
neck was painful on palpation. Mr. Olynyk’s hypertension had improved but
remained a concern. Dr. Bobyn prescribed a stronger anti-inflammatory drug
and also prescribed Demerol (as well as another medication to treat the side
effects of the primary drugs he prescribed). He testified that he is reluctant
to prescribe Demerol because it is a strong narcotic. He thought it was warranted
in Mr. Olynyk’s case. Mr. Olynyk also complained of pain in his right
hip. Dr. Bobyn ordered an x-ray of that area and of his lumbar spine.
Although Dr. Bobyn did not note any complaint relating to the lumbar pain,
he said that it would be odd for him to order an x-ray if the patient had not reported
pain. Dr. Bobyn repeated his recommendations regarding physiotherapy and
massage therapy, and wrote a further note asking that the plaintiff be excused
from work for a further two weeks.

[10]        
When Dr. Bobyn next saw Mr. Olynyk on January 19th, he had reviewed
the radiologist report of the hip x-ray. That report indicated that the joint
was “normal” with no bone, joint or soft tissue abnormality apparent. The x-ray
of the lumbar spine showed “moderate disc space narrowing” at the L5-S1 level,
but otherwise Mr. Olynyk’s spine was “normal”. Dr. Bobyn found that Mr. Olynyk’s
lumbar area was tender to palpation. The radiologist suggested that a different
view of the lumbar spine might assist, and because of that and due to his own
concern regarding Mr. Olynyk’s lack of progress, Dr. Bobyn ordered
further x-rays. He also prescribed more Demerol.

[11]        
Dr. Bobyn completed a medical report for ICBC purposes (a form
CL19) on February 2nd. He noted that Mr. Olynyk’s chief injuries were to
his neck and low back. He reported that the neck pain was improving but that
the low back pain was worsening. In it he wrote that Mr. Olynyk could not
do the typical duties associated with landscaping. He also recommended 10 or
more physiotherapy treatments. While Dr. Bobyn could not recall if he told
Mr. Olynyk about that recommendation, he said that it was his usual
practice to do so and I am satisfied he followed that practice when he completed
this form.

[12]        
Dr. Bobyn next reassessed Mr. Olynyk on February 8th. The
additional x-rays he had ordered were taken on January 26th, and the
radiologist consult report indicated the possibility of spondylolysis and
suggested a CT scan be ordered. Mr. Olynyk reported numbness and tingling
in his lumbar area which radiated to his right hip and buttock. Given the
progression of Mr. Olynyk’s symptoms and the radiologist’s suggestion, Dr. Bobyn
ordered a CT scan of the L2 to S1 area of his spine. He called the ICBC
adjuster that was handling Mr. Olynyk’s claim to see if the scan could be
expedited. Dr. Bobyn was concerned that there might be nerve root
impingement in part because for the first time since the motor vehicle accident
Mr. Olynyk reported pain and tingling radiating into his lower leg. Unlike
his low back, on this visit Mr. Olynyk reported that his neck pain was
improving. Dr. Bobyn repeated his suggestion to pursue massage therapy to
see if it would “loosen things up”.

[13]        
Dr. Bobyn next saw Mr. Olynyk on April 20th. On that visit, Mr. Olynyk
complained that his neck was stiff and his right leg and hip pain remained a
concern. He had reduced range of motion in both areas. He gave Mr. Olynyk some
sample doses of a milder narcotic pain relief medication.

[14]        
The last time Dr. Bobyn saw Mr. Olynyk was on August 27, 2009.
His blood pressure was much better. They did not discuss the motor vehicle
accident injuries on this visit.

[15]        
The only other times Mr. Olynyk has seen a doctor in relation to the
motor vehicle accident injuries is when he did so for purposes of this
litigation.

[16]        
At the time of the motor vehicle accident, Mr. Olynyk was in a
common-law relationship with Dolly Helbrand. She told Mr. Olynyk that she
was a registered massage therapist, and her business card suggested that as
well. She worked from the home that she shared with Mr. Olynyk. She gave
him massages initially daily, then weekly, then as needed into the summer of
2009. He said that these treatments gave only temporary pain relief, although they
eased the numbness in his buttock and leg.

[17]        
The plaintiff had two physiotherapy sessions with Gregory Redman: the
first on January 26th and the second on January 29, 2009. Mr. Redman gave Mr. Olynyk
intramuscular stimulation, a treatment intended to provide relief from muscles
that are in spasm. It involves inserting an acupuncture-type needle into the
muscle in order to stimulate the nerve which, in turn, can cause the spasming
to stop. Mr. Redman inserted the needle into the area of Mr. Olynyk’s
lumbar spine and his neck. On examination, he found Mr. Olynyk’s low back
to be “tight”.

[18]        
Mr. Redman said that the treatment is quite uncomfortable but that
it often works well. He thought it would work well in Mr. Olynyk’s case,
and he reported as much to Dr. Bobyn on January 26th after the first
treatment. During one of the visits, Mr. Redman explained some exercises
to Mr. Olynyk. It is his practice to explain further exercises once the
spasming has subsided. He did not do that in Mr. Olynyk’s case because Mr. Olynyk
did not return for further treatment.

[19]        
According to Mr. Olynyk, he experienced relief in the immediate
aftermath of each of the treatments he received from Mr. Redman, but that
on each occasion, the pain returned and was worse than it was before the
treatment. He said that he attended for a third treatment, but when he
explained his response to the first two treatments, he said that Mr. Redman
told him there was no point in continuing. While Mr. Redman has no memory
of the plaintiff, he did make notes of his visits. He said that if Mr. Olynyk
had booked a third appointment, it would show in his clinical records. He has
no record of a third appointment being scheduled. In addition, he says it is
rare for a patient to come to the clinic to discuss his or her case without an
appointment. It is rarer still for the therapist to actually engage in such a
discussion. Finally, he said that an initial sense of relief followed by a
short‑lived exacerbation of the pain is a typical response to
intramuscular stimulation treatment. I do not accept that Mr. Olynyk
stopped going for these treatments on the suggestion of Mr. Redman. I
accept that he experienced some elevation in his pain following each treatment
and that is why he stopped going.

[20]        
Mr. Olynyk testified that he experienced neck and shoulder pain
immediately after the accident. He developed a headache that evening. Not long
after these symptoms appeared, he developed pain in his hip and buttock which
eventually began to radiate down his leg. These pains plateaued some time ago
and are now relatively constant. He said that his hip and buttock pain is always
present but it varies in severity. If he walks for even 10 or 15 minutes
without stopping to stretch, the pain in his back will become so pronounced
that he has to stop until it settles. It is also aggravated or “severe” following
particularly taxing work days. He does some stretching, which is more akin to
simply adjusting his posture, and that provides some temporary relief. He
testified that the pain is always at least a two on the scale noted above, but
it can be as high as a seven if he has done something to aggravate it.

[21]        
The pain in his neck is now also constantly present. It is such that he
cannot shoulder check when driving. The pain improves if he does not turn his
neck but it never goes away. On a scale of one to ten, his neck pain is a six
about once a week. He testified that the only way he is able to relieve his
neck pain is by sleeping a particular way, and when he does that, he feels
reasonably good at least upon waking.

[22]        
Finally, Mr. Olynyk now has pain and numbness in his left thigh. This
pain developed in the spring of 2010, or about a year and a half after the
motor vehicle accident. According to Dr. Laidlow, these symptoms are likely
secondary to the entrapment of a nerve in the thigh. The entrapment is likely
secondary to Mr. Olynyk’s obesity. When seen by Dr. Laidlow, he
weighed 286 pounds. He is 5’ 11” tall.

Causation

[23]        
There are two aspects of the plaintiff’s condition which give rise to causation
issues. The first relates to the numbness he experiences in his left thigh; the
other is the degree to which his present complaints and limitations are the
result of a pre-existing condition.

[24]        
In Athey v. Leonati, [1996] 3 S.C.R. 458, Major J. explained the
law of causation in civil cases. At para. 13 he wrote that:

[13]      Causation
is established where the plaintiff proves to the civil standard on a balance of
probabilities that the defendant caused or contributed to the injury…

Although the Supreme Court of Canada has revisited the issue
of causation since Athey (in, for example, Resurfice Corp. v. Hanke,
2007 SCC 7, [2007] 1 S.C.R. 333, and most recently in Clements v. Clements,
2012 SCC 32), the propositions set out in Athey remain the law and are
all the law that need be considered in the circumstances of this case.

[25]        
According to both Dr. Laidlow and Dr. Coghlan, the numbness in
the plaintiff’s left thigh is due to an impingement or entrapment of a small
nerve in the upper thigh, a condition that is likely the result of weight gain.
The plaintiff argues that his weight gain is the result of his inability to
carry on with his physically demanding landscaping job which is, in turn, the
result of the injuries he sustained in the motor vehicle accident. While this
condition may be indirectly factually due to the accident, I am not satisfied
that the accident is the legal cause of it.

[26]        
The plaintiff has struggled with controlling his weight most of his life.
The only time he has been able to maintain a weight that approaches a healthy
weight for his height and build was during the spring, summer and fall in 2004
through to 2008 when he worked in landscaping. He was about 260 pounds when he
started that work and is 269 now. He said that during the winter he would
regain much of the weight that he worked off during the landscaping season. Since
the motor vehicle accident, he has been repeatedly advised of the importance of
losing weight and of maintaining a healthy body mass index. He has not done
that. I will deal more fully with the advice he received and his efforts to
follow that advice when discussing mitigation. For present purposes, I simply
note that to the extent his left thigh numbness is the result of weight gain,
that weight gain is the result of Mr. Olynyk’s failure to meet the
positive duty he has to take reasonable steps to mitigate his losses.

[27]        
The second causation issue relates to the condition of Mr. Olynyk’s
back prior to the accident and whether, and if so to what extent, that
pre-existing condition is the cause of the symptoms he is now experiencing.

[28]        
The evidence is clear that Mr. Olynyk had two anatomical defects in
this back prior to the accident. The first of those is a condition known as spondylolisthesis.
The second are degenerative changes in the spine.

[29]        
Spondylolisthesis is a condition that can result from a pars defect in
the bones that form the facet joints in the spine. A pars defect is a break or
an incomplete fusion between the upper and lower parts of the upper bone of the
facet joint. That bone is anchored inferiorly by the facet joint itself. The
upper part is not, and thus when there is a break, it can separate from or
become misaligned with the lower portion of the bone. If it slips such that it
becomes misaligned, the condition is known as spondylolisthesis. Spondylolisthesis
varies in severity according to the extent of the misalignment. There are four
grades which are distinguished from one another by the degree of the offset. Grade
4 spondylolisthesis is when the two bones are between 75 and 100 percent
offset, that is, when the surfaces at the pars defect do not overlap at all or
overlap only up to 25 percent. Grade 3 is when there is between a 50 and
75 percent offset; Grade 2 is when the offset is between 25 and 50
percent; and Grade 1 is less than 25 percent. Mr. Olynyk has Grade 1
spondylolisthesis. The condition is apparent on x-ray and CT scans. In Mr. Olynyk’s
case, the offset is between 6 and 12 percent and is located at the L5 vertebrae.

[30]        
Mr. Olynyk experienced low back pain in 2004. He did not seek
medical treatment and the pain settled within a week. He associated the pain
with straining his back at work. At the time, he had recently begun working as
a landscaper. He was prone to intermittent episodes of soreness thereafter but
never sought medical advice, nor did he take any treatment.

[31]        
The spondylolisthesis at the L5 level of Mr. Olynyk’s spine is
superimposed on degenerative changes at the same level. Dr. Laidlow is of
the view that these two conditions were likely the cause of the mechanical back
pain that Mr. Olynyk experienced prior to the accident. Those mechanical
problems occurred when Mr. Olynyk was doing extremely heavy work. Dr. Laidlow
wrote in his October 20, 2011 report that:

…As a result of the motor
vehicle accident he has had a musculoligamentous strain with myofascial
tightness and this has aggravated the mechanical problems present in the
spondylolisthesis.

[32]        
Dr. Coghlan’s opinion is that both conditions noted by Dr. Laidlow
exist now and have existed since prior to the accident. He differs from Dr. Laidlow
on the cause of Mr. Olynyk’s present low back complaints. Dr. Coghlan
refers to Mr. Olynyk’s low back and right buttock and leg pain as “sciatic-type
symptoms”. He is of the view that these symptoms are not related to the motor
vehicle accident. In his October 18, 2011 report, he wrote:

…the fact that these
sciatic-type symptoms did not occur within the first few weeks after the injury
suggests that the injury itself was not important in the development of these
symptoms, symptoms which are his major complaint at the present time.

[33]        
In his evidence, Dr. Coghlan said that based on his review of the
clinical records, he felt there was a hiatus of about two months between the
accident and the onset of the sciatic-type symptoms. If the symptoms were
accident related, they would have developed within a week of the accident and been
present more or less constantly thereafter.

[34]        
Dr. Laidlow felt that Mr. Olynyk complained of pain right
after the accident, and hence he attributed Mr. Olynyk’s symptoms to the
injuries sustained in the collision.

[35]        
In summary, the doctors do not disagree on the state of Mr. Olynyk’s
back prior to the accident, nor do they disagree on whether those pre-existing
conditions account for the present symptoms and would have developed even if
the accident had not happened. They disagree on whether the accident caused or
triggered the symptoms and that disagreement is, in turn, based on how they
interpret the evidence as to when the symptoms first appeared.

[36]        
Dr. Coghlan testified that he reviewed Dr. Bobyn’s notes and
found a reference to back pain shortly after the motor vehicle accident
followed by a period of six to eight weeks, during which Mr. Olynyk saw Dr. Bobyn
but either did not complain about his lower back or, if he did, Dr. Bobyn
did not note it.

[37]        
Dr. Bobyn impressed me as a careful witness and a careful doctor. He
said he saw Mr. Olynyk on December 15 and 20, 2008 and January 5 and
January 19, 2009. He said that he tries to chart all the major complaints his
patients report, but he is not always able to do so. In his clinical note for
December 15, 2008, he recorded that Mr. Olynyk complained of low back pain.
There is no reference to a similar complaint on the December 20th or the
January 5th visits. However, on the January 5th visit, Dr. Bobyn ordered
an x-ray of the lumbar spine. He said that it would be odd to order that if Mr. Olynyk
had not complained of symptoms in his low back. I think it more likely than not
that Mr. Olynyk was experiencing low back pain and told Dr. Bobyn as
much. In his clinical note for the January 19th visit, Dr. Bobyn recorded
that Mr. Olynyk complained of pain in his neck and right hip, but he made
no note of low back pain. He did, however, note that Mr. Olynyk’s low back
was tender on palpation. Finally on February 2, 2009, when Dr. Bobyn next
saw Mr. Olynyk, he did record in his chart notes a complaint of low back
pain.

[38]        
In addition to this evidence, Mr. Olynyk testified that the pain in
his low back radiated to his right buttock and right leg. He said that this
developed shortly after the motor vehicle accident and grew worse over time. It
grew worse both in terms of the degree of pain and in the extent to which he
felt it in his right leg.

[39]        
While I understand how Dr. Coghlan reached the conclusion he did,
based on Dr. Bobyn’s explanations as to his notes and the inferences he
drew from them and Mr. Olynyk’s own evidence, I am satisfied that it is
more likely than not that Mr. Olynyk experienced pain in his low back
within days of the accident and that the pain grew over time. The accident
involved significant force. Nothing happened following the accident which would
otherwise explain Mr. Olynyk’s symptoms. I am satisfied that his low back
pain and the pain in his right buttock and leg is caused by the accident.

Mitigation

[40]        
The defendant argues that the plaintiff has failed to mitigate his
damages by failing to follow the advice of various health care professionals
regarding exercise and other forms of therapy. His failure to do so, it is
said, has resulted in his symptoms persisting and persisting at a level they
would not have otherwise. Further, it is argued that he has failed to mitigate his
income loss claim by not seeking other less physically demanding jobs more
suited to his abilities. I will deal with that issue when addressing the
question of past and future income loss.

[41]        
The plaintiff argues that the defendant has not proven that any of the
suggested therapies would have reduced his symptoms. Further, counsel argues
that the reason the plaintiff did not pursue those treatments was at least
partially due to his precarious financial situation (which was itself due to
the accident).

[42]        
The rationale that underlies the notion of mitigation was explained by
Rowles J.A. in Graham v. Rogers, 2001 BCCA 432, at para. 35.
She there wrote:

[35]      Mitigation goes to
limit recovery based on an unreasonable failure of the injured party to take
reasonable steps to limit his or her loss. A plaintiff in a personal injury
action has a positive duty to mitigate but if a defendant’s position is that a
plaintiff could reasonably have avoided some part of the loss, the defendant
bears the onus of proof on that issue. Red Deer College v. Michaels
(1975), [1976] 2 S.C.R. 324 at 331, 57 D.L.R. (3d) 386 at 390, and Asamera
Oil Corp. v. Sea Oil & General Corp. (1978), [1979] 1 S.C.R. 633,
89 D.L.R. (3d) 1, provide support for that proposition…

How a claim of failure to
mitigate is to be analyzed was explained by Low J.A. in Chui v. Chui,
2002 BCCA 618, at para. 57:

[57]      The onus is on the
defendant to prove that the plaintiff could have avoided all or a portion of
his loss. In a personal injury case in which the plaintiff has not pursued a
course of medical treatment recommended to him by doctors, the defendant must
prove two things: (1) that the plaintiff acted unreasonably in eschewing the
recommended treatment, and (2) the extent, if any, to which the plaintiff’s
damages would have been reduced had he acted reasonably. These principles are
found in Janiak v. Ippolito, [1985] 1 S.C.R. 146.

[43]        
The first issue is whether the plaintiff was given advice about
treatments that he should follow. If so, the next issue is whether he followed
that advice. If he did not follow it, then the question is whether his failure
to do so was unreasonable. Finally, if it was unreasonable, it is necessary to
determine whether and if so to what extent the consequences of his injuries
would have been reduced or mitigated.

[44]        
There are two therapies that the defendant says the plaintiff failed to
follow. The first is the intramuscular insertions that Mr. Redman
performed. The second is any kind of conditioning or exercise program.

[45]        
Dr. Bobyn recommended physiotherapy. He did so recognizing that
therapy of that kind for soft tissue injuries, such as those the plaintiff was
experiencing, can be of variable effectiveness. It can help in some cases and
in others it may not help at all. He did, however, recommend at least 10
treatments. Mr. Olynyk went twice. For the reasons already given, I am not
persuaded that Mr. Redman advised him to discontinue the treatments. Mr. Olynyk
simply stopped going. He stopped going even though Dr. Bobyn continued to
recommend the treatment. I accept that the treatments caused a short-term
elevation in Mr. Olynyk’s level of pain but that was to be expected, and
if the treatments were to have any chance of succeeding, that discomfort needed
to be endured. I think it was unreasonable for Mr. Olynyk to discontinue
the treatments when he did. There is no suggestion that his financial situation
had anything to do with his decision to stop. Finally, I am satisfied that had
he continued with the treatments, it is more likely than not that he would have
experienced some benefit at least in the early stages. I am unable to say that
benefit would have been substantial or long lasting, but I think it more likely
than not that he would have realized some benefit.

[46]        
As to exercise and conditioning, the first time that was specifically
addressed with Mr. Olynyk was in August 2009 by Dr. David Royce. Dr. Royce
is an orthopedic surgeon who saw Mr. Olynyk at the request of the
defendant. He assessed the plaintiff and made a variety of treatment
recommendations. He explained the need for Mr. Olynyk to optimize his
level of conditioning preferably with the help of a personal trainer who could
oversee the program. In addition, he recommended stretching in a classroom
setting and perhaps under the general supervision of a physiatrist. Finally, he
recommended a weight loss program. Although Dr. Royce could not
specifically recall his meeting with the plaintiff, he said that it is his
practice to discuss, and discuss in terms appropriate to the particular
patient, his recommendations about treatment. I find it more likely than not
that he did this with Mr. Olynyk.

[47]        
Dr. Laidlow is a physiatrist. He saw Mr. Olynyk at the request
of his lawyer on October 17, 2011. In his report of October 20, 2011, he wrote:

With respect to [Mr. Olynyk’s] treatment, the treatments
have been far too passive in nature and unfortunately he has not been involved in
an overall program to address his mechanical problems.

….

I do believe he requires a much
more thorough treatment program. I…would like to see him set up with a
trainer in the community to set up an exercise program to improve his general
condition and in particular, improve the flexibility of the neck and upper
shoulder girdle, as well as the low back and legs. In addition, they should
help him in improving truck strength and support for his abnormal spinal
mechanics and help him in losing weight.

[48]        
In cross examination, Dr. Laidlow said that he discussed these
things with Mr. Olynyk. He said that he made the recommendations he did
because, in his opinion, they would result in a reduction in Mr. Olynyk’s
level of pain and an increase in his function. Further, he said that
physiotherapy and massage therapy and other passive forms of treatment are of
little to no value for injuries of the kind Mr. Olynyk sustained. Physiotherapy
can provide temporary relief, especially in the immediate aftermath of an injury,
but beyond that it is usually of little benefit.

[49]        
Shannon Smith is an occupational therapist. She saw Mr. Olynyk on
January 31, 2012, at the request of his lawyer. At p. 5 of her
February 22, 2012 report, she wrote:

To date, Mr. Olynyk has not
participated in any form of active rehabilitation. He has gained a reported 100
pounds since being injured and presents as very deconditioned. Both Dr. Laidlow
and Dr. Coghlan recommend Mr. Olynyk participate in an active
rehabilitation program including weight loss, core strengthening, stretching,
and cardiovascular exercise…

[50]        
She testified that while she did not discuss the specifics of an
exercise or conditioning program with Mr. Olynyk, she did explain to him
that he needed to pursue active rehabilitation.

[51]        
Dr. Coghlan saw the plaintiff as the behest of the defendant. He,
too, recommended a variety of therapies which he discussed with Mr. Olynyk.
He set out some treatment recommendations in his October 18, 2011 report. First,
he said that Mr. Olynyk “really needs” to lose weight. He explained that
the excess weight he carries around his abdomen is a “significant factor”
producing strain in his low back. Second, he said that Mr. Olynyk needed
to be more consistent in exercising his abdominal muscles because those muscles
aid in stabilizing the low back. He recommended core strengthening under the
guidance of a physiotherapist. He did not think that Mr. Olynyk was a
candidate for surgery given the intermittent and somewhat variable nature of
his symptoms.

[52]        
I am satisfied that the plaintiff was given advice about the kind of
therapy that would assist him by almost every health care professional he saw. Dr. Royce
recommended an exercise program in August 2009. Dr. Laidlow echoed that
advice in October 2011, as did Dr. Coghlan.

[53]        
The next issue is whether the plaintiff followed the advice he was given
about the need to exercise and, in particular, strengthen his core. Mr. Olynyk
testified that he does some stretching to relieve his hip pain. The stretches
are ones that he has developed himself. He did that because his doctor told him
to try a stretch and, if it works, then continue with it. He demonstrated two
of them. They are minor, so minor that had he not told me he was doing them, I
would not have realized he was stretching at all. For his neck and shoulder
pain, he attempts to relieve that by sleeping in a particular posture.

[54]        
Aside from his two visits to the physiotherapist shortly after the
accident, the only other passive treatment he received is massage therapy from
Ms. Helbrand, his girlfriend until September 2009. She did not testify nor did
she bill for her treatments. Mr. Olynyk said that massage gave only temporary
relief but helped a lot with the numbness in his buttock and leg.

[55]        
As to exercise and fitness in general, Mr. Olynyk’s only efforts
have been recent. He started a supervised core strengthening and exercise
regime on June 1, 2012, less than two weeks before the trial and three-and-a-half
years after the accident. He testified that the sessions are being paid for by
the defendant’s insurer. He has purchased a foam roll, which I infer is akin to
a bolster, on the recommendation of the person at the gym he is attending. He
said that he uses it twice a day. Mr. Olynyk purchased it just three days
before the trial began.

[56]        
I am satisfied that the plaintiff did not follow the advice he was given
when he was given it.

[57]        
The next issue is whether it was reasonable for him not to. That turns
on his evidence that he could not afford it. I accept that impecuniosity can be
a legally sufficient reason for failing to pursue recommended treatment (see
generally Spurgeon v. Smith, 2009 BCSC 1526, at paras. 64-70). The
defendant has the onus of proving that it was unreasonable for the plaintiff
not to pursue treatment. Although impecuniosity is capable of justifying a
failure to take treatment, it is not reasonable for a plaintiff who cannot
afford treatment to take no steps to try to obtain funding. If a request is
made to the defendant to fund a rehabilitation program and the request is
denied or ignored, then the onus will generally be discharged. On the other
hand, if the defendant is otherwise unaware that a lack of funds is precluding
reasonable treatment, it is reasonable to expect the plaintiff to make that
circumstance known to the defendant. For a plaintiff to simply do nothing and
then assert impecuniosity is not reasonable in my view.

[58]        
Mr. Olynyk testified that he was unable to afford exercise or other
therapy. He said that he lost his job as a result of the accident. When he did
find work, it was in the lower mainland and he had to relocate there. Moreover,
he is making less now than he was prior to the accident. The implication of his
evidence is that he did not take any other therapy because ICBC would not pay
for it. ICBC paid for the physiotherapy sessions in early 2009. There is no
evidence that Mr. Olynyk asked for any financial support for
rehabilitative therapies prior to last month. He acknowledged that he did not seek
an advance from ICBC, nor had he made any other effort to secure funding.

[59]        
I find that the plaintiff’s failure to participate in the programs
recommended by the various doctors and other rehabilitation professionals was
unreasonable.

[60]        
The final issue is whether, had the plaintiff followed the
rehabilitation advice he was given, the effects of his injuries would have been
reduced or mitigated.

[61]        
According to Dr. Coghlan, losing weight would improve the
plaintiff’s condition. He wrote “the sooner he loses the weight the better he
will feel. This has been well documented in long-term studies”. Dr. Laidlow
was similarly optimistic. He noted that Mr. Olynyk’s overall trend had
been one marked by improvement notwithstanding that his “treatments have been
far too passive”. He is of the view that a more thorough treatment program
involving a supervised exercise and strengthening regime would improve his
range of motion in his back and neck. Further, like Dr. Coghlan, Dr. Laidlow
wrote that losing weight would also significantly help to reduce the symptoms
he experiences due to his the injuries.

[62]        
I am satisfied that had Mr. Olynyk participated in a program of the
kind recommended by Dr. Laidlow, he would have experienced an improvement
in his functionality. I find that he would have experienced a reduction in his
level of pain. I find that a reduction of 20 percent in what would
otherwise be an appropriate award is warranted on the basis of Mr. Olynyk’s
failure to mitigate. In fixing this percentage, I have taken into account that
it was in the summer of 2009 that Mr. Olynyk was first advised to pursue a
conditioning and exercise program.

Damages

[63]        
The plaintiff is now 46 years old. He was 43 on the day of the accident.
His formal education ended with his graduation from high school in 1983 in
Winnipeg. Following high school, he briefly attended college but did not
complete the first semester. He had a number of different short-term jobs
before he began selling cars. He sold cars for several years and enjoyed
success. In 1992, he was asked to become the business manager of the
dealership he was working for. He accepted the position. As the business
manager, he was the last person the customers would see after agreeing to
purchase a car. He was responsible for “tightening up” the sales, arranging for
any financing that was necessary, dealing with insurance, and selling
warranties and after market accessories. He enjoyed the job, at least
initially, and was good at it. He was paid exclusively on commission, and he
earned about $100,000 per year over the next six years in that role. To earn
that income required him to work long hours. He married in 1995 but separated
in 2001 and later divorced. He attributes the breakdown of his marriage, at
least in part, to the long hours he was required to work. In the late 1990s, he
relocated to Toronto and worked in a niche car market that involved selling
cars with specific financing tied to the vehicle. His customers were, as he put
it, “credit challenged”. After about a year in that business, he joined a
company in which, among other things, he trained other car dealership business
managers. He then returned to a dealership in Winnipeg, where he again assumed
the role of business manager. In 2002, he left that job and after some time “meandering
around”, he visited his brother in Kelowna. He liked the city and decided to
move here. He arrived in August 2003.

a) Non-pecuniary Damages

[64]        
Mr. Olynyk testified that he enjoyed golfing and riding his motorcycle
prior to the accident. He did much more of the latter than the former. When the
weather permitted, he rode his motorcycle daily. After work, he might ride for
two or three hours traveling to Vernon or Penticton, or perhaps to Rock Creek
or Osoyoos, simply for the pleasure of the ride. He testified that before the
accident, he golfed about twice a month and went to the driving range on a
weekly basis. He also occasionally enjoyed fishing with his brothers.

[65]        
The injuries Mr. Olynyk sustained were to his neck and his low back.

[66]        
The defendant argues that care needs to be taken in assessing Mr. Olynyk’s
early complaints about his level of pain because he had an ulterior motive for
overstating it; in particular, he wanted to obtain a prescription for a
narcotic pain reliever for his girlfriend.

[67]        
Ms. Helbrand accompanied Mr. Olynyk on several of his initial
visits to Dr. Bobyn. She told Mr. Olynyk that she suffered from
chronic pain for which she received medication. After Mr. Olynyk’s first
visit to Dr. Bobyn, he filled the prescription he received for the pain
medication Emtec. He took a few of those pills but found the side effects
unpleasant so he did not take any more. Ms. Helbrand told Mr. Olynyk that she
had exhausted her own pain medication and asked if she could take his. He
agreed and gave her the medicine. Ms. Helbrand apparently tolerated the
medicine just fine because she finished the prescription. Prior to seeing Dr. Bobyn
on January 5, 2009, Ms. Helbrand suggested that Mr. Olynyk try to get a
prescription for stronger pain medication so that she could take it. Mr. Olynyk
agreed, and Dr. Bobyn prescribed Demerol. Mr. Olynyk had the
prescription filled and gave the medication to Ms. Helbrand. He did not take
any of it, either then or when it was renewed.

[68]        
Although Ms. Helbrand did not testify at the trial, the defendant intended
to call her. She had a fall of some sort and was unable to attend. I do not
know what she would have said had she testified. She and Mr. Olynyk had an
unpleasant break up. It may be that she would have told about the prescription
drug scam. Mr. Olynyk did, however, testify about it. He was straightforward
in the manner he did so; in fact, he was straightforward in most of his
evidence. If he were of a mind to, he could have denied the drug ruse and it
may never have been proven. In a similar vein, he provided a consistent account
to the various doctors he saw about his episodic, pre‑accident back pain.
He never saw any doctors about that pain when it was occurring, nor did he take
any treatment for it. Had he not disclosed it, it is likely the defendant would
not have been the wiser. While there is good reason to approach Mr. Olynyk’s
evidence with skepticism, I accept what he said about his condition and the
pain he experiences.

[69]        
I am satisfied that Mr. Olynyk’s neck, while initially painful,
grew worse over the several weeks after the accident. The symptoms then generally
improved over time, both in that they were less severe and the episodes of more
significant pain were less frequent. His neck continues to be quite stiff in
the morning, somewhat more so on the left side than the right. The pain
generally moderates during the day but his neck is never pain free.

[70]        
His low back and right hip and buttock pain is also constant. They are
aggravated by walking any significant distance. Mr. Olynyk testified that
on a scale of 1 to 10, it might reach level 6 or 7 two or three times per
month. He modifies how he does various tasks and, by doing so, is able to keep
the pain manageable. In spite of that, he described it as constantly at level 2
or a nagging dull ache.

[71]        
He testified that he does not golf anymore, nor does he ride his
motorcycle. He found that he could only ride for 20 to 30 minutes at a time,
and even at that, it was not comfortable. His leg would go numb and he found he
had to stop, dismount and stretch regularly. Lifting his leg to mount and
dismount his motorcycle was difficult, and shoulder checking was difficult.

[72]        
In terms of his activities of daily living, he is now unable to cut or
rake the grass or shovel snow. It must be said, however, that he does not now
have a need to do any of these things, given that he is living in a mobile home
in a mobile home park in the lower Mainland. He did live in rented houses prior
to the accident and hopes one day to do so again.

[73]        
As against this background, the plaintiff argues that general or
non-pecuniary damages in the range of $105,000 are appropriate and that such an
award should not be reduced on the basis of a failure to mitigate. Support for
this is said to be found in a variety of cases but particularly in Barnes v.
Richardson, 2008 BCSC 1349; Esau v. Myles, 2010 BCSC 43; Papineau
v. Dorman, 2008 BCSC 1443; and Majer v. Beaudry, 2002 BCSC 746.

[74]        
The defendant argues that an award of $25,000 is appropriate and that it
should be reduced because the plaintiff has failed to mitigate his losses. He
argues that the cases of Manson v. Kalar, 2011 BCSC 373, and Cross v.
Cross, 2010 BCSC 1814, are similar and support an award in the range he
suggests.

[75]        
In Barnes v. Richardson, the plaintiff was 16 years old when he
was involved in a motor vehicle accident. He was 21 years old by the time of
the trial. He was described by Martinson J. as “very active before the accident”
but very much limited afterwards. He had difficulties sleeping; he experienced some
mood disturbances, and suffered pain on a regular basis. She was satisfied that
he would continue to do so into the future. Although the defendant argued that the
plaintiff had failed to mitigate his damages, that plea was dismissed. Of
interest in Barnes is the fact that the plaintiff had a pre-existing but
asymptomatic congenital spondylolisthesis at the L5-S1 level. That condition
was permanently aggravated by the accident. In addition to the activated
spondylolisthesis, the plaintiff developed myofascial pain in the muscles supporting
his back. In assessing damages, Martinson J. applied the law in Athey, where
Major J. wrote that:

[88]      An asymptomatic non-tortious
precondition, while not relevant to causation, may be taken into account in
assessing contingencies…If there is a measurable risk that the
pre-existing condition would have detrimentally affected the plaintiff in the
future, regardless of the defendant’s negligence, this can be taken into
account in reducing the overall award: Athey at para. 35.

[76]        
How such future risks or contingencies are taken into account is through
a combination of the likely effect of the non-tortious precondition should it
occur and then giving weight to that effect according to the relative
likelihood of it coming to pass (Athey at para. 27). In Barnes,
Martinson J. concluded there was a measurable risk that the plaintiff’s
pre-existing spondylolisthesis would have become symptomatic had the accident
not happened. She concluded the likelihood of that happening was about 15
percent. She concluded that if the condition became activated, it would give
rise to symptoms and limitations similar to those that the plaintiff suffered
as a result of the motor vehicle accident. She assessed the plaintiff’s
non-pecuniary damages without regard to the pre-existing condition at $100,000
and then reduced the notional damages by 15 percent and awarded $85,000. In
today’s terms, those amounts are $105,200 and $89,400. She also reduced the
award for future loss of income earning capacity by a similar amount.

[77]        
In Esau, the 24-year-old plaintiff who had done all that his
doctors had recommended, including losing over 40 pounds, taking both massage
and physiotherapy and pursuing a core strengthening program, which he followed
up with regular exercise and stretching, still experienced constant low back
pain which he rated at 4 or 5 out of 10 most days, and significantly higher if
he did a lot of bending at work. Prior to the accident, he had led an active
life enjoying a variety of physically demanding sports. He was able to
participate in those activities following the accident but only at a much
reduced level and with much less enjoyment. Although, like Mr. Olynyk, he
had a pre-existing spondylolisthesis and associated spondylolysis, there was no
measurable risk that those conditions would have detrimentally affected him but
for the accident. He was awarded $70,000 in non‑pecuniary damages.

[78]        
The injuries suffered by the 38-year-old plaintiff in Papineau
merited an award of $60,000 in general damages, as a result of an accident that
occurred in August 2004. N. Brown J. summarized his pre- and post-accident
circumstances at paras. 281-284 as follows:

[281]    He came to the accident with an asymptomatic spinal
condition with, as I have found, about a 10% chance of becoming symptomatic. He
was a very fit and athletic 37-year-old man in good health, with a good work
history and excellent work ethic. Work and sports were the central focus of his
life; he formed friendships there and his social life centred on them…

[282]    He came from the accident with headaches, neck pain,
upper back pain, headaches and at various times pain in the right leg, right
buttock, right hip, right thigh and low back—all the latter related to his low
back injury caused by the accident.

[283]    The pain was more or less constant in varying
degrees of intensity until he began to notice significant improvement around
the summer of 2006, especially around November of that year.

[284]    While further recommended treatment will likely
further improve his condition and function, especially if he recovers as much
of his pre-accident fitness level as possible, he will continue to experience
permanent residual symptoms in his neck and lower back.

[285]    The accident affected
his psychological health in that he suffered a depressed mood…and loss of
self-confidence and self-esteem. He felt acute embarrassment about receiving
social assistance. He became reclusive and socially isolated. This relates to
the fact that his pain and disability prevented him playing sports, especially
baseball, which he had formerly played at a competitive level. He formed his
social circle, like many people, through work and sports. Being new to [the
community], this avenue was closed to him, and after his friend Jeremy Moon
moved away, he had no real friends and did not know how [to] solve the problem
of his social isolation.

[79]        
The award was reduced by 5 percent to reflect the chance that the
plaintiff’s pre-existing low back problem (spondylolisthesis at the L5-S1
level) would become symptomatic in future, and by a further 20 percent to
reflect his failure to mitigate his losses by taking various treatments
recommended by his health care providers.

[80]        
Finally, in Majer, at para. 21, Goepel J. said of the 44-year-old
plaintiff’s condition in 2002 following an accident that occurred in 1997 that
he:

[21]      …continues to suffer
the physical effects of his injuries. His hip and back problems are still not
better. His hip stiffens up in the course of the day. Standing or lying makes
his pain worse. He seldom is able to sleep through the night. Although he can
scuba dive without pain, getting in and out of the water is painful. He
initially attempted, on medical advice, to continue his running and cycling
activities, but he has found that such activities increased his pain and he no
longer is able to partake in such activities.

He was awarded $95,000 in general damages ($118,450 in
today’s dollars).

[81]        
Turning to the authorities the defendant relies on in Manson, the
55-year-old plaintiff suffered mild to moderate soft tissue injuries, the
symptoms of which persisted for the three years prior to trial and would likely
continue into the future. He was awarded $25,000 in non-pecuniary damages. One
of the complicating features of that case was that shortly after the accident,
the plaintiff’s wife and mother died. He was left to raise his two teenage
children as a single parent. He claimed that he withdrew from his sporting
activities as a result of the injuries he sustained, but Boyd J. was not
convinced. She felt that it was more likely, or at least as likely, that his
reaction to the tragic circumstances of his wife and mother’s deaths accounted
for much of the curtailment in his recreational and other activities.

[82]        
In Cross v. Cross, the 23-year-old plaintiff sustained soft
tissue injuries to his neck and back and a fracture to his sternum. He was
employed as an industrial painter at the time of the accident and was unable to
return to that work for some time as a result. He experienced headaches for some
months, but his most significant injury was a moderate back strain. These
injuries caused him pain and discomfort. He was awarded non-pecuniary damages
of $20,000.

[83]        
I find that Mr. Olynyk suffered a soft tissue injury to his neck and low
back. I would describe the former as mild and the later as moderate. There
is no necessary correlation between the amount of medication consumed, the
frequency of visits to the doctor, or the nature of the attempts to mitigate
the effects of one’s injuries and the severity of those injuries and their
consequences. There may be many explanations for such a lack of congruity: a
person may be particularly stoic or may have an aversion to taking medication
for example. On the one hand, in the absence of such an explanation, when there
is a significant disconnect between these two things, that can be a reason for
treating self reports of pain and limitation with caution.

[84]        
Mr. Olynyk maintains that his pain has been constant and occasionally
significant. As noted, he reports constant neck pain which rises to a level of six
on a 10-point scale about once a week. His back pain is a steady two on that
same scale but occasionally rises to a seven. Other evidence suggests that his
overall pain has diminished to some degree since the accident. He took two or
three Emtec pills one day shortly after the accident. He stopped taking them
because he found the side effects unpleasant. He did not ask his doctor to
prescribe different medication which might not have those side effects. The
only other medications he has taken are over‑the-counter muscle
relaxants. Although he kept his receipts for his physiotherapy and walk-in
clinic visits, he has no receipts for any over-the-counter medication. He told
Ms. Smith in January 2012 that he was not taking any medications. In her cost
of future care report, she did not include any amount to cover the cost of over-the-counter
medications (or prescription medications for that matter). Mr. Olynyk last saw
a doctor about his injuries, otherwise than for the purposes of this
litigation, in August 2009 some nine months after the accident and almost three
years prior to the trial. He has not followed the recommendations to lose
weight or improve his conditioning. In fact, he has gained almost 100 pounds in
spite of this advice.

[85]        
The defendant tendered surreptitiously recorded videotape evidence taken
of the plaintiff over four days in March and April 2009. During those periods,
the plaintiff was observed both walking and driving. He was observed getting
into and out of his car; walking to and from a corner store; and sitting at a
coffee shop. On one occasion, he was speaking on his cellular telephone while
he got into his car. He held the telephone to his ear with his shoulder. On
April 20, 2009, he was observed backing his large motorcycle out of his garage.
He was sitting astride it and manually pushing it backwards. He then pushed a
second motorcycle back into the garage. Next he pushed a car, that was parked
in the driveway, into the garage by pushing with his back and shoulder against
the door post. He then drove to a coffee shop on his motorcycle, where he sat
and had a cup of coffee. He rode his motorcycle back to his home after
finishing his coffee. Later that day, he drove to a Canadian Tire store. When he
left the parking lot on his motorcycle, he turned his head at the neck to check
for traffic. He turned 90 degrees in doing so. All of these things the
plaintiff did without apparent limitation.

[86]        
Mr. Olynyk’s injuries are not as serious as those suffered by the
plaintiffs in the cases relied on by the plaintiff. Moreover, the effect of the
injuries for those plaintiffs was greater than the impact that Mr. Olynyk’s
injuries have had or will have on him. Unlike the plaintiffs in Barnes
and Esau who were young men, Mr. Olynyk is in his mid‑40s. He
had put the pursuit of vigorous physical recreational activity behind him long
before this accident. Further, physical activity of any kind was not a
particularly important part of his life. He enjoyed riding his motorcycle and
did some fishing and played some golf. It is not clear to me that any of those
activities will be beyond his abilities if he loses weight and commits to a
program of core strengthening and regular and sustained stretching. He will
likely still experience some pain if he plays golf, but I am not persuaded that
he will be unable to play or that playing will cause so much pain and
discomfort that it would not be worth the effort. His injuries are somewhat
more severe than those of the plaintiffs in the cases referred to by the
defendant.

[87]        
Given that it is now three years post accident, I am satisfied that Mr.
Olynyk’s pain is likely permanent, although as Mr. Olynyk told Dr. Laidlow in
the fall of 2011, his symptoms improved in the years since the accident,
inasmuch as his level of pain declined as did the frequency of more significant
episodes. Leaving aside the issue of his pre-existing back problems, and in
view of the authorities referred to above, I consider that an award of non-pecuniary
damages of $40,000 is appropriate. In reaching this conclusion, I have taken
account of the dislocation that the plaintiff’s loss of employment has caused
him. That loss is greater than the mere loss of income that it occasioned and
for which separate compensation is in order. The plaintiff had to move to a
different community to take a job that he was physically able to do. That is a
matter of some consequence.

[88]        
The next issue is the effect of the plaintiff’s pre-existing back
problems. According to Dr. Laidlow because of the plaintiff’s
spondylolisthesis, and given the heavy nature of his work, he likely would have
experienced back problems similar to those he now experiences in 10 years even
if he had not been involved in an accident.

[89]        
As noted above, such future risks or contingencies are taken into
account through a combination of their likely effect and the relative
likelihood of them coming to pass (Athey at para. 27). I find that
there was a 60 percent likelihood that Mr. Olynyk would experience the same symptoms
he now experiences in 10 years in any event. It is not appropriate to reduce
the award for general damages by 60 percent to account for that likelihood
because the pre-existing condition would not have given rise to symptoms and
limitations for 10 years. Mr. Olynyk is now 47 years old. I think it reasonable
to reduce the award for general damages to account for his pre-existing
condition by 30 percent.

[90]        
The plaintiff is entitled to $28,000 in general damages ($40,000 less 30 percent).
That amount must be further reduced to account for Mr. Olynyk’s failure to
mitigate. The net award of non-pecuniary damages is therefore $22,400.

b) Past Loss of Income

[91]        
The plaintiff claims past income loss of $48,521. There is a claim for
duplicated rent, which resulted from the plaintiff’s move to the lower mainland
to take the job he now has. That claim is more properly dealt with as a special
damage.

[92]        
The plaintiff’s past wage loss claim is based on his 2008 income of
$45,531. Income at that level for three years and five-and-a-half months would
have amounted to $157,464. Mr. Olynyk earned $108,941 during that period. That
income was from a brief period of car sales work in the spring of 2009 for
which Mr. Olynyk earned about $1,000, a stint at a landscaping company during
the summer of 2009 for which he was paid $9,600, and the balance was from his
present job where he earns just under $36,000 per year. In addition to the lost
wages, the plaintiff claims $1,764 for lost benefits.

[93]        
The defendant argues that the plaintiff is not entitled to any past wage
loss. The losses he experienced following the accident were due to seasonal
fluctuations in the landscaping business superimposed on a general economic
decline and not the accident. Further, the defendant argues that the plaintiff
could and should have sought out less physically demanding work shortly after
the accident, including car sales which he was qualified to do. Had he done
that, he would not have sustained any loss.

[94]        
As noted above, Mr. Olynyk’s formal education ended with his graduation
from high school in 1983 in Winnipeg. After a brief stint in a glass shop, he
went to work in the car sales and financing business. He did that in Winnipeg
and then in Toronto before returning to Winnipeg in 1999 or 2000. He was successful
in that business. He began as a salesperson, was promoted to business manager,
and eventually did financing of “credit challenged” purchasers. By 2002, he had
saved about $100,000. His marriage had ended, a casualty in his mind of the
long hours he had to work, and he decided to look for a different job, one that
was less stressful and healthier. He travelled for a year supporting himself on
his savings, and in 2004, he arrived in Kelowna where his brothers were then
working. He got a job with a landscaping company known as Talon, which had a
contract with the city to remove bush in local parks. This was heavy work,
involving carrying portions of fallen trees over steep terrain to a mobile wood-chipping
machine. Mr. Olynyk then weighed about 260 pounds. He had not done any physical
labour in over 20 years. His boss, Christopher Murphy, an experienced
landscaper and now head gardener at the Horticultural Center of the Pacific,
was so unimpressed with the plaintiff’s condition that he and other members of
the crew bet on whether he would make it through his first day, and if he did
whether he would return the next day. To Mr. Murphy’s astonishment, not only
did Mr. Olynyk work the day and return the following day, he remained with the
company for the next three years.

[95]        
According to Mr. Murphy, Mr. Olynyk, like others in the business, worked
his way into physical shape. He lost a lot of weight and generally became
hardened to the job. He was also a reliable employee with a knack for the aesthetic
side of the business as well as the management side. He started at $10 per hour
as a general labourer and advanced to become a crew foreman earning $18 per
hour. As a crew foreman, he was given a project, such as installing a patio or
a retaining wall, planting shrubs, or restoring habitat. He was responsible for
getting the job done on time and within budget. According to Mr. Murphy, he
regularly did that; moreover, he was good with the crew keeping them in high
spirits and devoted to the job.

[96]        
In 2006, Talon was hired to do a project for a larger company, Troika
Ventures Inc. Mr. Murphy convinced Troika to hire him to start an in-house
landscaping division. Troika agreed and not long after Mr. Murphy, in need of a
crew chief, had Mr. Olynyk hired as well. When the landscaping business slowed
in the winter, Mr. Olynyk worked for the construction side of Troika. Sometime
later when Mr. Murphy wanted him to return to the landscaping division, the
construction supervisor offered Mr. Olynyk $21 per hour to remain with him. Mr.
Olynyk declined and returned to the landscaping division for $20 per hour. The
expectation for both Mr. Murphy and Mr. Olynyk was that they would do
landscaping from the spring until the fall and work construction in the winter.

[97]        
Mr. Olynyk remained with Troika until the motor vehicle accident. In
December, he was landscaping a new Harley-Davidson dealership. It had snowed on
the day of the accident, and that proved to be the last day for landscaping for
the season. Mr. Olynyk next worked in the late spring when he took a casual job
selling used cars. As noted, he earned about $1,000 for a couple of weeks’
work. While doing that job, he was continuing to look for work. He was offered
a job at another landscaping company, Hampton. He worked there from May 26,
2009 until August 21, 2009, as a team leader. Although his record of employment
shows that he was laid off due to a shortage of work, Mr. Olynyk recalls that
as time went on and as the nature of the jobs became more physically demanding,
he found he could not do the work and so gave his notice. He had in the
meantime looked for less physically demanding work and by chance had been
offered a job with Peel Nurseries, a company based in Mission. The company grows
and supplies plants for municipalities and companies throughout the lower
mainland. Mr. Olynyk told Bruce Peel, the owner of the company and his boss,
about his physical limitations but he was hired anyway. He drives the company’s
delivery truck. He loads some items but at most he lifts about 20 pounds. My
sense is that Mr. Peel has modified the duties typically associated with the
job to accommodate Mr. Olynyk. Mr. Olynyk continues to work there today. He earns
$17.50 per hour and works 11 months of the year. The business closes from mid-December
to mid-January annually.

[98]        
Mr. Peel described Mr. Olynyk as an excellent employee. In addition to
simply delivering the company’s product, there is a public relations component
to Mr. Olynyk’s job, inasmuch as he is the face of the company to many of its
customers. Mr. Peel is particularly impressed with how Mr. Olynyk performs that
aspect of the work, so much so that if an opening arises in the sales or
managerial side of the business, Mr. Olynyk would be a strong candidate for the
job.

[99]        
I am satisfied that Mr. Olynyk would have continued to work for Troika
had he not been injured. I am satisfied that Troika had work for him. Although
the construction industry slowed down in 2008 and 2009 Brian Wall, the chief
executive officer for Troika, testified that they had a number of projects on
the go in 2009, at least one of which they are continuing to build today. He
said that they would make every effort to keep a worthy employee on pay during
slow times. Mr. Olynyk was a worthy employee, and I think it more likely than
not that he would have been kept on had he been able to do the work.

[100]     I am not
persuaded that Mr. Olynyk failed to mitigate his income loss by not taking
other jobs in the spring and summer of 2009. He did not want to sell cars. He
took a temporary job as a stop-gap measure. He liked and hoped to continue his
landscaping career. It was not unreasonable for him to take the position with
Hampton’s to determine whether he would be physically capable of handling the
work. It proved too much for him, and I accept that is why he stopped working
there. To his credit, he immediately secured another job, and as with all of
his previous jobs, he has advanced and established himself as a valuable
employee in spite of his physical limitations.

[101]     I am
satisfied that Mr. Olynyk’s past wage loss is $48,521 to June 15, 2012.

[102]     He was
receiving benefits at Troika. Those benefits were valued at $13.97 every two
weeks until March 31, 2011. On April 1, 2011, Troika changed its benefits
package, and thereafter the employer paid $30.25 every two weeks for those
benefits. The employee matched these contributions. Mr. Olynyk does not receive
any benefits at Peel’s. Although there is no evidence that Mr. Olynyk replaced
this coverage privately or that he had any expenses that would have been
covered by the health and dental coverage he had through his employment at
Troika, I am satisfied that he would have continued with this coverage had he continued
to work at Troika and that the employer’s contribution to the premiums
necessary to support it are a recoverable loss to Mr. Olynyk. The value of the
lost benefits is $1,764.

[103]     The total
past wage loss is therefore $50,285 less the impact of income taxes, which I
have no doubt the parties can calculate, but if not, they have liberty to
apply.

[104]     I am not
persuaded that this amount should be reduced either on the basis of a failure
to mitigate or because of Mr. Olynyk’s pre-existing condition. As to the latter,
the evidence is that absent the accident, his spondylolisthesis would not have
become limiting until several years from now. As to the former, while I am
satisfied that following the medical advice regarding exercise, core
strengthening and weight loss will improve Mr. Olynyk’s functional abilities
and reduce his pain, I do not think that he will be able to return to the
physically demanding tasks required of those in the landscaping business. My
impression from the evidence is that Mr. Olynyk is working now at and sometimes
beyond his physical limitations notwithstanding the modifications that his
employer has made for him. Were he to maintain an appropriate physical exercise
regime, he would be able to do his job without modifications and without excessive
strain. He would not be able to do much more.

c) Loss of Future Income Earning Capacity

[105]     The
plaintiff argues that he is entitled to an award of damages under this head.
His position is that he now earns about $35,700 per year. He was earning
$46,300 per year at Troika. The difference is his annual loss. If he were to
work until he was 70 years old, that loss would be $176,214; if he were to work
until he was 65 years of age, that loss would be $148,035. The plaintiff
argues that his case is suited to the “real possibility” approach to
compensating for loss of future income earning capacity and that an appropriate
award is $162,492, which is the mid-point between the values based on the two
posited retirement dates.

[106]     The
defendant argues that the plaintiff has not proven any loss of income earning
capacity. He argues that had the plaintiff followed the medical advice he was
given and properly mitigated his damages, he would be able to work as a
landscaper now. In fact, he would have been able to do so prior to now.
Further, the defendant argues that the plaintiff has, in the past, demonstrated
an ability to work at sedentary jobs, particularly in the car sales business.
Moreover, he is capable of driving a truck, and according to Niall Trainor, a
vocational rehabilitation consultant who prepared an assessment of Mr. Olynyk,
such occupations generally pay about $49,000 per year. Finally, the defendant
argues that it is not reasonable to measure Mr. Olynyk’s loss against his 2008
income because that year was an anomaly. Mr. Olynyk had never earned $46,300 in
landscaping in any of the four previous years he was in that business.

[107]     I will
deal with the latter proposition first. I agree that 2008 was a good year for
Mr. Olynyk in terms of income as a landscaper. I do not think it was an
anomaly. Mr. Olynyk advanced in his landscaping jobs. He did this much to the
surprise of his employers. He has similarly impressed Mr. Peel. There is no
reason to conclude that he would not have continued to advance or at least
maintain his income level into the future.

[108]     For the
reasons already given, I do not think even if Mr. Olynyk were to follow the
recommendations of his health care providers regarding exercise and core
strengthening that he would be able to return to landscaping. While in theory
Mr. Olynyk may be able to drive a truck and earn an average income doing so, he
is now 47 years old. He will have some physical limitations even after properly
mitigating the effects of his injuries. Neither of these auger well for Mr.
Olynyk in a competitive labour market.

[109]     I agree
with Mr. Trainor’s conclusion at p. 8 of his March 5, 2012 report that given
Mr. Olynyk’s limitations, even once properly mitigated, his present job
represents “from a vocational rehabilitation perspective… a very good outcome”.
He has a sympathetic employer and is in a job that has the prospect for
advancement, albeit a limited prospect for advancement.

[110]    
In Perren v. Lalari, 2010 BCCA 140, Garson J.A. reviewed the
authorities dealing with loss of future income earning capacity. The
authorities reveal two approaches to assessing future loss of income earning
capacity. At para. 12, she described the approaches as follows:

[12]      …One is what was
later called by Finch J.A. in Pallos the ‘real possibility’ approach. Such
an approach may be appropriate where a demonstrated pecuniary loss is
quantifiable in a measurable way; however, even where the loss is assessable in
a measurable way (as it was in Steenblok), it remains a loss of capacity
that is being compensated. The other approach is more appropriate where the
loss, though proven, is not measurable in a pecuniary way. An obvious example
of the Brown approach is a young person whose career path is uncertain

[111]     I agree
with the plaintiff that in the matter at hand, the “real possibility” approach
is appropriate. It does not follow that the loss is as the plaintiff has
calculated it. First, there is the likelihood that the plaintiff would not be
able to continue in the landscaping business beyond his mid-50s. That is so
both because of the physically demanding nature of the job and the probability
that his pre-existing back condition would have rendered him unable to
continue. I am satisfied that by his mid-50s, he would have found it necessary
to seek alternative employment and that he would then earn about what he will
be earning should he stay with Peel’s and advance into a less physically
demanding position involving more sales and customer support and doing less
driving and physical labour. Next, I recognize that there was a real
possibility that the plaintiff would have advanced in his landscaping career
and earned more as a result. There is also the real, albeit somewhat less
likely, possibility that he will advance within the Peel company. Further,
there is the equally real possibility that he would have lost time due to his
pre-existing condition and the vicissitudes of the construction and landscaping
industries. I think these contingencies offset one another.

[112]     The
plaintiff is now earning $35,700 per year. Had he remained at Troika, he would
have earned about $46,300 per year inclusive of benefits. His loss is thus approximately
$10,000 per year. It is a loss that will extend over approximately eight years.
The present value of $10,000 per year lost until the year 2020 when Mr. Olynyk
will be 54 years old is $76,610 according to Mr. Carson’s March 13, 2012
report.

[113]     I assess
Mr. Olynyk’s future loss of income earning capacity at $76,610.

d) Cost of Future Care

[114]     The
plaintiff claims future care costs for physiotherapy, weight loss support, an
exercise program, attendance at a pain clinic, and home and yard maintenance.

[115]    
The purpose of an award for the cost of future care was described by
Ballance J. in B.M.M. v. M.L.V., 2009 BCSC 1174, at para. 220, as
follows:

[220]    The purpose of awarding
damages for the cost of future care is to compensate for a financial loss
reasonably incurred to sustain or promote the mental and/or physical health of
an injured plaintiff. The cost must be justified as reasonable in the sense of
being medically required or justified, and in the sense that the plaintiff will
be likely to incur them based on the evidence

[116]     I am
satisfied that if Mr. Olynyk follows the medical advice he has received
regarding weight loss and conditioning, he will not require any assistance in
the maintenance of his home or yard, assuming he chooses to live in a home with
a yard in the future. The potential salutary effect of a pain clinic was mooted
by Mr. Trainor, and the plaintiff is seeking compensation to cover the
attendance at such a clinic. I am not persuaded that such a clinic is
properly compensable for two reasons. First, it is not recommended by any of
the healthcare professionals that Mr. Olynyk has seen. Second, if he follows
the exercise and dietary advice he has been given, I am satisfied that his pain
will moderate to the point where attendance at a pain clinic would not be
warranted.

[117]     I am
satisfied that the cost of weight loss support, physiotherapy, and exercise and
conditioning assistance are properly recoverable. I am also satisfied that the
plaintiff would likely have found it necessary to incur these expenses in his
mid-50s due to his pre‑existing back problems. His low back was intermittently
symptomatic while he was landscaping. Dr. Laidlow expressed the view that if he
had continued in that work, it is likely that his low back would have become so
symptomatic in 10 years that he would have had to find other work. I accept
that is so. I am also satisfied that even before his back problems would have forced
him to change occupations, they would have become symptomatic to the point that
he would have had to receive some physiotherapy. He would have found it
necessary to control his weight and engage in conditioning and exercise once he
stopped doing the physically demanding work.

[118]     A
physiotherapy assessment and an initial course of treatment costs on average approximately
$620. Future treatments to address symptom flare-ups and assist in adjustments
to the exercise regime that Mr. Olynyk will need to follow will cost about $200
annually. Weight loss support in the form of a consultation with a dietitian
followed by perhaps two further sessions, and then supplemented by a 12‑week
program, such as Weight Watchers, will cost about $400. It is a one-time cost.
I also find that Mr. Olynyk will require the assistance of a kinesiologist to
aid him in understanding proper body mechanics and to develop an exercise
regime suited to his particular situation. The cost of that assistance is about
$800. That is also a one-time cost. Finally, I consider that a gym membership
is reasonably required to allow Mr. Olynyk to maintain his weight and fitness,
things he would have but for the accident, done through his employment. The gym
membership is an annual expense of $531.

[119]     The annual
expenses are causally related to the accident until Mr. Olynyk is 55 years old.
I consider that to be the age which takes account of the combination of the likely
effect Mr. Olynyk’s pre-existing condition and the relative likelihood of it
coming to pass.

[120]     I assess
Mr. Olynyk’s damages under this head at $7,366. This represents the present
value of the one-time expenses, which total $1,820 and will be incurred over
the course of the coming year, and the present value of the annual expenses of
$731, which will be incurred until Mr. Olynyk is 54, a period of 9 years.

e) Special Damages

[121]     The
parties have agreed that the plaintiff is entitled to special damages of
$453.43, representing the cost of prescription medications, physiotherapy
sessions, the cost of visits to Dr. Bobyn at the walk-in clinic, x-ray costs,
and mileage for the various attendances for these services. These are all
properly compensable. The plaintiff also claims the cost of his assessment at
the fitness program he began attending just prior to the trial, plus the cost
of the bolster he was advised to purchase. I am satisfied that the bolster is a
proper claim; the cost of the assessment has been accounted for under the
future care award. Finally, the plaintiff paid rent for two residences when he
moved to take his job in the lower mainland. He paid rent at $400 per month
(his share of the total rent on the house he lived in with Ms. Helbrand) for
September to November 2009 and for February 2010. This totaled $1,400. It is
properly recoverable. In the result, the plaintiff is entitled to special
damages of $1,893.43.

Summary and Costs

[122]     In summary
the plaintiff is entitled to judgment in the following amounts:

a)    Non-pecuniary Damages
– $22,400;

b)    Past Loss of
Income (less income taxes which counsel are to calculate) – $50,285

c)     Loss of Future
Income Earning Capacity – $76,610

d)    Cost of Future Care
– $7,366

e)    Special Damages
– $1,893.43

[123]     The
parties are at liberty to speak to the question of costs.

“G.M.
Barrow, J.”

The
Honourable Mr. Justice Barrow