IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120831

Docket: M102589

Registry:
Vancouver

Between:

Robert McArthur

Plaintiff

And

Danielle Louise
Hudson

Defendant

Before:
The Honourable Madam Justice Kloegman

Reasons for Judgment

[1]            
On June 9, 2008, the plaintiff was driving home from a physiotherapy
session at the Back in Motion program in Burnaby, when he was struck on the
driver’s side of his vehicle by the defendant, who had failed to stop at a stop
sign (the “Accident”). The force of the impact was sufficient to spin the
plaintiff’s pick-up truck 180 degrees and render it uneconomical to
repair.

[2]            
The defendant admits liability for any injuries and damages she may have
caused to the plaintiff.

[3]            
During the Accident, the plaintiff struck his left shoulder on the door
of his truck, his head on the window, and his right hip against the console. He
cut his leg on the brake pedal, sprained his wrist and bruised his right ribs.

[4]            
The morning after the Accident the plaintiff was feeling “fuzzy”, with a
stiff neck, headache, sore ribs and shoulder, and throbbing hip, lower back and
wrist. The cut on his leg and pain in his wrist cleared up in a couple of days.
His ribs were sore for a couple of weeks. He went for 10 to 12 massage
therapy treatments for his shoulder and neck symptoms, but had to stop because
he could no longer afford it. His right hip and lower back which had caused him
pain before the Accident continued to be painful. He did not return to physiotherapy
at the Back in Motion program until November 2008. After about a month of exercising
there, he stopped because his hip was too painful.

[5]            
Today his main areas of concern are his right hip, headaches and lower
back, with some minor discomfort in his neck and shoulders.

[6]            
The plaintiff claims against the defendant under all heads of damages
for his personal injuries, in the total sum of $739,664. The defendant
vehemently opposes all damage awards except a modest sum of $25,000 for
non-pecuniary damages.

[7]            
The reason for this significant discrepancy between the positions of the
two parties lies in the unfortunate nature of the plaintiff’s complex medical
condition. Simply put, the defendant says that the plaintiff’s damages stem
almost entirely from his pre-accident state of poor health and disability,
while the plaintiff says but for the accident he would have recuperated from
his prior medical problems, returned to work, avoided his dependency on
analgesics, resolved his financial issues and cured his depression.

I.                
CAUSATION

A.             
Legal Principles

[8]            
Notwithstanding the recent review of the principles of causation by the
Supreme Court of Canada in Clements v. Clements, 2012 SCC 32, the
fundamental principles remain the same. These are neatly summarized by Eric S.
Knutsen in his article “Clarifying Causation in Tort” (2010) 33 Dalhousie LJ 153
at 187-188:

a)         Negligence
law is a fault-based enquiry requiring a link between breach of an applicable
standard of care with some harm to an injured accident victim in order to
trigger compensation for the victim;

b)         The
default doctrinal test for causation in negligence is the “but for” test;

c)         The
focus of the causal enquiry is on the defendant’s breach of the standard of
care as a potential cause for some injury to the plaintiff;

d)         Causation
must be proven on a balance of probabilities;

e)         A
plaintiff need only prove that a defendant’s breach of the standard of care is
“a” cause of her injuries;

f)          The
material contribution test for causation is a rare and exceptional test,
reserved only when the “but for” test fails;

j)          If
the victim is overly susceptible to harm, and suffers greater than foreseeable
harm as a result of the defendant’s negligence, the defendant is liable for the
entire harm, not for just harm that one might think foreseeable for a “normal,”
healthy person (thin-skull rule)–such a concept is triggered at the remoteness
phase of the negligence analysis and not at the causation phase;

k)         A defendant is only liable for
the extent of the plaintiff’s injuries caused by the defendant’s negligence
(crumbling skull rule)–such a concept is triggered at the damages phase of the
negligence analysis and not at the causation phase.

[9]            
It appears that the “but for” test, while it applies in determining
which injuries were likely caused by the defendant’s breach of care in the
motor vehicle accident, has no place in determining the extent of damages these
motor vehicle accident related injuries may have caused the plaintiff. The
damages phase of the enquiry should focus on the principles of restoration and
responsibility. Plaintiffs must be restored to the position they were in before
an accident, and negligent defendants are only responsible for the harm their
negligence caused, no more and no less.

[10]        
It is during the damages assessment that the doctrines of thin skull and
crumbling skull apply. If the damages are unexpectedly severe owing to a
pre-existing condition that was latent and symptomatic and would not have
affected the plaintiff in the future, then the thin skull would entitle the
plaintiff to the full amount of his or her damages (Athey v. Leonati,
[1996] 3 S.C.R. 458).

[11]        
Conversely, if the pre-existing condition was manifest and disabling, or
would have become so in any event in the future, then the crumbling skull rule
entitles the plaintiff only to additional damages suffered by the plaintiff as
a result of the accident (Smyth v. Gill, 2001 BCCA 650).

[12]        
The measurable risk of debilitating effect in the future of the
plaintiff’s pre-existing condition must be reflected in both the non-pecuniary
damages and loss of income award (McKelvie v. Ng, 2001 BCCA 384). There
should be a similar reduction of damages to reflect unrelated intervening
events that would have affected the plaintiff’s original position adversely in
any event (TWNA v. Clarke, 2003 BCCA 670).

[13]        
The measureable risk need not be proven on a balance of probabilities,
but given weight according to the probability of its occurrence (Athey).

[14]        
If the injury is proven to be of a crumbling skull nature, then the
defendant is liable only to the extent that the accident caused an aggravation
to the pre-existing condition (Pavlovic v. Shields, 2009 BCSC 345).

[15]        
Another way of distinguishing pre-existing injuries from non-tortious
causes are to consider whether any of the plaintiff’s injuries are “divisible
injuries” capable of being separated out. Indivisible injuries are those that
cannot be separated or have liability attributed to the constituent causes (Bradley
v. Groves, 2010 BCCA 361, leave to appeal to SCC refused, [2010] S.C.C.A.
No. 337 (April 14, 2011)).

[16]        
If the damages are divisible, the devaluation approach is the
appropriate method for determining the amount of damages attributable to the
defendant.

[17]        
Therefore it is important, in the case at bar, to distinguish as much as
possible between extent and duration of the plaintiff’s injuries, both before
and after the Accident, when assessing the plaintiff’s claims under the various
heads of damages.

B.             
The Evidence

[18]        
To ascertain the effect of the Accident on the plaintiff’s physical
condition on June 9, 2008, it was necessary to cover the plaintiff’s
medical history in some detail at trial. There were a large number of clinical
records admitted into evidence, and defendant’s counsel introduced even more
records during his cross-examination of the medical witnesses. Unfortunately,
no single medical-legal report spoke to all of the plaintiff’s ailments in a
reliable manner. Parts of each report carried little weight because the
necessary factual underpinning was lacking.

[19]        
The plaintiff, while a seemingly honest and earnest witness, was not
always reliable in his recollections or observations. He admitted to confusion
about dates, or time periods, or even particular events or circumstances. This was
not surprising, considering the plaintiff’s age – 61 – and the prolificacy of
medical visits and treatments he had undergone with a plethora of health
professionals. Nonetheless, where his evidence conflicts with the documentary
evidence, I give more weight to the latter.

[20]        
The plaintiff blamed the injuries he received in the accident as having
prevented him from continuing his rehabilitation, and disabling him from
returning to work as a truck driver, or at all. However, the documentary
evidence strongly supports the defence case that the complaints of the
plaintiff which disable him from working today were the same complaints he made
in the months preceding this accident. This is most clearly illustrated by the
observations of the treating health professionals and the statements made by
the plaintiff to these health professionals both before and after the accident

1.         Right
Hip

a)       Pre-Accident

[21]        
The plaintiff worked as a truck driver throughout his adult life. In
1992 he was injured when a hook fell and knocked him off a truck trailer. He
suffered a fractured pelvis and was warned that eventually he would need a hip
replacement.

[22]        
In September 2007, after about 18 months of hip pain, the plaintiff
underwent a total hip replacement.

[23]        
The plaintiff started physiotherapy at Sungod Physiotherapists from
October 22, 2007, to March 2008 in the hope of rehabilitating and
returning to work.

[24]        
The plaintiff attended the occupational rehabilitation #1 program at the
Canadian Back Institute from March 12 to April 23, 2008, in the hope
of rehabilitating and returning to work.

[25]        
 Dr. Lu, the plaintiff’s orthopedic surgeon, observed on April
16, 2008, signs of trochanteric bursitis, subluxating fascia lata and a
tight iliotibial band in the plaintiff’s right hip. However, he noted that the
plaintiff was doing well, although he still had pain. At that time, Dr. Lu
suggested a gradual return to work in 6 to 8 weeks. It should be noted that a
gradual return to work was not available to the plaintiff with his past
employer. They required the plaintiff to be fit to return to work full time.

[26]        
The Canadian Back Institute records of April 24, 2008, indicated
that the plaintiff was tender over the right greater trochanter.

[27]        
On May 1, 2008, the plaintiff started the Back in Motion rehabilitation
program in the hope of rehabilitating and returning to work. He only attended
eight of the 26 sessions due to bronchial problems and a pulled muscle in his
chest.

[28]        
The Back in Motion intake assessment of May 1, 2008, stated that
all movements of the plaintiff were limited from his hip pain. He was unable to
reach items 10 inches from the floor, could only tolerate sitting for
20 minutes, walking for 30 minutes and standing for 30 minutes. His
average pain was 4 to 5 out of 10.

[29]        
Dr. Lai, the plaintiff’s general physician for 20 years, recorded
on May 7, 2008, that the plaintiff still complained of right hip pain and
a clunking sound in the hip joint (which is consistent with sublaxation of the
fascia lata). The plaintiff told her he was continuing to take the analgesic
Endocet for his sore hip.

[30]        
Dr. Miller, psychiatrist, recorded on May 16, 2008, that the
plaintiff had a sharp pain in his right hip when he got up. Eric Baasch,
medical consultant with Back in Motion, recorded the plaintiff as having
ongoing hip pain and stiffness on May 29, 2008.

[31]        
The plaintiff testified that before the Accident, he was doing well at
the Back in Motion program. He testified that in the few days before the Accident
he was covering about five miles a day on the treadmill. However, when the Back
in Motion records were put to the plaintiff in cross-examination, he admitted
he had only done five minutes on May 26, 20 minutes on May 27,
30 minutes on May 28, 20 minutes on May 29, 10 minutes
on June 3, 30 minutes on June 6 and 30 minutes on
June 9. At a recorded speed of two miles per hour, the longest distance the
plaintiff covered on the treadmill in any one day right up to the day of the Accident
was one mile.

[32]        
Plaintiff’s counsel submitted that the Pharmanet records showed a
significant decrease in consumption of pain medication from January to
mid-April 2008. There were no records from April 2008 to the date of the Accident.
Dr. Lai’s clinical record of May 7, 2008, notes that the plaintiff was
taking the pain killer Endocet daily.

b)       Post Accident

[33]        
On June 9, 2008, the plaintiff was involved in the Accident. He was
treated with massage therapy in June and July 2008 but he did not return to the
Back in Motion program until November 2008. He stopped attending in December
2008.

[34]        
The plaintiff reported to Dr. Lai that he hit his hip on the console of
his truck. She did not record any bruising during her examination of him. She
was concerned that the hip prosthesis may have been damaged in the Accident,
but Dr. Lu confirmed in September 2008 that it had not been damaged.
Dr. Sovio, orthopedic surgeon, testified that it would take much greater
forces to dislodge the prosthesis than those that occurred in the Accident.

[35]        
Dr. Lu testified that the plaintiff’s hip pain was likely secondary to
trochanteric bursitis. He admitted that trochanteric bursitis can be a result
of lateral hip surgery. Notably, Dr. Lu has never opined in his medical-legal
report, or his testimony, that the plaintiff’s trochanteric bursitis was caused
by the Accident. In fact, he lists various other clinical conditions that could
be contributing to the plaintiff’s current hip pain such as subluxating fascia
lata, tight iliotibial band, abductor weakness, degenerative spinal disease,
and soft tissue injuries of the back.

[36]        
Dr. Lu admitted in cross-examination that by the time of the plaintiff’s
last visit on March 3, 2011, the plaintiff’s trochanteric bursitis was
mild in intensity and intermittent in duration.

[37]        
Dr. Purtzki, physiatrist, agreed with Dr. Lu that the plaintiff’s hip
pain was likely related to greater trochanteric bursitis. She said the cause of
the trochanteric bursitis was likely a combination of pre-existing anatomical
abnormalities, weakness after the hip surgery, and aggravation by the Accident.

[38]        
Dr. Sovio did not deny that the plaintiff was suffering from
trochanteric bursitis, but he was adamant that the plaintiff had a mechanical
problem within the hip joint that was related to the outcome of the surgery.
Dr. Sovio believed that the plaintiff had a microscopic loosening of the
prosthesis that was not visible by x-ray, but created the “Trendelberg sign” in
the plaintiff’s gait and stance. He described the Trendelberg sign as a raising
of the opposite hip joint to compensate for pain in weakness of the damaged
joint. This was an outcome of the surgery, not the Accident

[39]        
Dr. Sovio testified that a hip replacement is usually pain free 4 to 6
weeks after the soft tissues heal; yet in the plaintiff’s case he was still
experiencing pain and unable to fully weight bear by the time of the accident
which was nine months after the surgery. In his opinion, a review of the
clinical records showed there was not much change in the plaintiff’s condition
or degree of pain before or after the Accident.

[40]        
I find that the plaintiff’s pre-existing condition of trochanteric
bursitis was aggravated by the Accident. No one denied it increased in
magnitude after the Accident, but on Dr. Lu’s evidence it seemed to have
settled down to a minor complaint by March 2011.

[41]        
I do not find that the condition of the plaintiff’s hip joint is
connected to the Accident in any way. It is not necessary to decide whether
there has been a loosening of the hip prosthesis, as opined by Dr. Sovio, or
not. It is not the non-tortious pre-existing injury that is on trial here; it
is the tort-induced injury that must be proved on a balance of probabilities.
The hip joint issues suffered by the plaintiff are clearly divisible from the
trochanteric bursitis, and are clearly the result of the plaintiff’s prior injury
in 1992 and the surgery in 2007. The defendant cannot be held responsible for
any loss suffered by the plaintiff that was not caused by the Accident.

2.       Lower Back

[42]        
In 2002, the plaintiff suffered injury to his lower back (among other
things), and was off work for about three months.

[43]        
In 2005, 2006, and 2007, the plaintiff made the occasional visit to a
chiropractor complaining of sore lower back (among other things).

[44]        
In 2006, Dr. Lai recorded a work-related injury to the plaintiff’s lower
back. On cross-examination, she opined that the plaintiff’s current low back problem
was related to this work place accident and arthritis of the spine, all of
which predated the subject motor vehicle accident. She did not include reference
to his low back in her medical-legal report because she did not consider it to
be connected to the Accident.

[45]        
Dr. Purtzki, physiatrist, opined that the plaintiff’s low back pain was
likely related to his hip-related abnormal gait and years of heavy work and
lifting. She could find no clear association with the Accident.

[46]        
Therefore, there is no evidence that the Accident caused or aggravated
the plaintiff’s lower back pain.

3.       Depression

[47]        
Dr. Miller, psychiatrist, examined the plaintiff on May 16, 2008,
about three weeks before the Accident. He reported that the plaintiff had
difficulty coping with the June 1992 work incident and “other stressors.”
At that time, his right hip injury, slow pace of recovery, inability to work,
and financial concerns continued to generate some frustration, irritability,
anxiety and depressive symptoms. Dr. Miller diagnosed the plaintiff with an
adjustment disorder.

[48]        
Dr. Shergill, psychologist, reported on March 25, 2010, that the
plaintiff had been experiencing depressive and anxiety symptoms after his hip
surgery in 2007. The plaintiff had experienced significant financial losses
related to the sequelae of his work injury.

[49]        
Dr. Vallance, psychiatrist, agreed on cross-examination that regardless
of the Accident, the plaintiff probably would have been depressed and anxious
and required anti-depressant drugs for his emotional state. The plaintiff’s
father died in October 2008, and his dog died about five months after that. His
best friend in Thailand died in the fall of 2009. According to
Dr. Vallance, all these losses were very considerable and pushed the
plaintiff deeper into depression and escalated his anxiety.

[50]        
Dr. Vallance opined that it is difficult to weigh the influence of so
many negative factors in the plaintiff’s life, but if the plaintiff had been
able to return to work as planned in June 2008, it could have gone a long way
towards resolving his emotional problems. Dr. Vallance viewed the Accident
as a considerable setback for the plaintiff. Dr. Purtzki also viewed the Accident
as a setback to the plaintiff’s course of rehabilitation.

[51]        
The evidence establishes on a balance of probabilities that the Accident
likely aggravated the plaintiff’s depression due to the setback (perceived or actual)
in his rehabilitation. However, by November 2008, the plaintiff had returned to
the Back in Motion rehabilitation program with the same tolerances as before
the Accident, and it would not be reasonable to blame the Accident for ongoing
depression after that time.

4.       Sleep Disturbance

[52]        
Dr. Lai wrote in her medical-legal report that the plaintiff did not
experience any sleep disturbance because of right hip pain before the Accident.
This is entirely contradicted by the plaintiff’s statements to members of the
Canadian Back Institute and Back in Motion rehabilitation programs. The
plaintiff told Canadian Back Institute staff in April 2008 that hip pain
was disturbing his sleep. The plaintiff told Eric Baasch of Back in Motion on
May 29, 2008, that he was not sleeping well because of hip pain and fear
of losing his vehicle and his house, which was in foreclosure.

[53]        
Dr. Lai admitted in cross-examination that if she had had the
records from the Canadian Back Institute, she would not have said the plaintiff
experienced no sleep disturbance before the Accident.

[54]        
The plaintiff told Dr. Vallance, about a month before the Accident, that
he was having disturbed sleep due to pain. He told Dr. Miller he had to
sleep with a pillow between his knees because of hip pain.

[55]        
The plaintiff reported to Dr. Shergill on March 25, 2010, that he
continued to experience pain in his hip and lower back which interfered with
his function, sleep, and leisure activity.

[56]        
I cannot find on a balance of probabilities that the Accident had any
effect on the plaintiff’s already disturbed sleep beyond what he was already
experiencing in that regard.

5.       Neck Pain

[57]        
In November 2002, the plaintiff injured his neck in a car accident. In
2004, he injured his neck pulling a cable.

[58]        
There are some entries in the chiropractic records that suggest the
plaintiff visited once or twice a year for soreness in his neck between 2005
and 2007.

[59]        
In 2005, the plaintiff was involved in another motor vehicle accident
which caused him to go to Burnaby General Hospital because of neck pain.

[60]        
Dr. Lai opined in her medical-legal report that on June 17, 2008,
and July 11, 2008, the plaintiff complained of increasingly severe
headaches, neck and shoulder pain. However, the actual entry in her clinical
record of June 17 states the plaintiff had slightly decreased, neck, hip
and shoulder pain.

[61]        
Dr. Lai also stated in her medical-legal report that the plaintiff had
only demonstrated limited improvement of his musculoskeletal symptoms,
but on cross-examination she agreed that Dr. Beckman’s observations of the
plaintiff in May 2011 indicated significant improvement with his neck
symptoms. She also agreed in cross-examination that the plaintiff’s neck
symptoms were worsened after he reported having taken a fall in September 2010
during which he hit his head and shoulder, although she had failed to mention
this.

[62]        
Dr. Beckman, when he saw the plaintiff in August 2008, found that the
plaintiff demonstrated a decreased range of motion in his neck and complained
of some pain in his posterior cervical area. When he saw the plaintiff in 2011,
he found normal range of motion with mild neck pain on the end ranges.

[63]        
I find on a balance of probabilities that the plaintiff suffered a soft
tissue injury to his neck from the accident but that it had substantially
resolved by May 2011.

6.       Shoulder

[64]        
The plaintiff injured his left shoulder in the November 2002 accident
mentioned above.

[65]        
Dr. Lai opined in her medical-legal report that the plaintiff continues
to experience ongoing symptoms in his shoulder. However, the plaintiff
testified that his shoulder symptoms resolved about one month after the
accident. Dr. Lai professed not to have known that. She also admitted to
forgetting her clinical note that the plaintiff’s shoulder was hurt in
September 2010, when he took a fall.

[66]        
I find on a balance of probabilities that the plaintiff suffered a soft
tissue injury to his shoulder that substantially resolved by one month after
the Accident. Any current complaints about his shoulder cannot be attributed to
the Accident.

7.       Headaches

[67]        
There was no significant evidence that the plaintiff suffered from
chronic headaches before the Accident.

[68]        
Dr. Beckman, neurologist, treated the plaintiff for headaches on
July 23, 2008, and May 2, 2011. In the 2008 examination he diagnosed
the plaintiff with soft tissue pain with secondary headaches from neck muscle
strain incurred during the Accident.

[69]        
In 2011, Dr. Beckman found that the plaintiff’s neck pain was mild and
only at the end range of motion, but his headaches were daily. Dr. Beckman
diagnosed him as having analgesic rebound headaches from taking Endocet one to
three times daily for two years without a break, and other analgesics before
that.

[70]        
Dr. Lai wrote in her medical-legal report that the plaintiff had chronic
headaches since the Accident, from tightness in his neck and use of Endocet.
However, Dr. Lai’s clinical records show that the plaintiff told her in August
2008 that the headaches had decreased in severity. He told her in October 2009
that they had decreased in duration. Dr. Lai’s clinical records also show that
the plaintiff told her his headaches worsened after he hit his head when he
fell in September 2010.

[71]        
Dr. Beckman was unaware of the plaintiff’s fall in 2010 and admitted in
cross-examination that it could be an alternate cause of the plaintiff’s headaches.

[72]        
Dr. Purtzki opined in her medical-legal report that the chronic
headaches appear to have been triggered by the Accident. She said that the
plaintiff was prone to degeneration of the cervical spine from his previous
accidents in 1992 and 2002, but was not symptomatic until after the 2008
accident. In cross-examination, she admitted that the headaches were likely a
combination of flare-up of degenerative changes because of the Accident and
rebound headaches from use of painkillers. She also said she did not know about
the 2010 fall after which the plaintiff described his head as feeling “mushy.”
She deferred to the plaintiff’s family doctor as to the degree this may have
affected him, but stated that the plaintiff’s complaints of headaches from the
2010 fall should not be minimized.

[73]        
I find on a balance of probabilities that it is likely that the
plaintiff suffered headaches as a result of the tightness in his neck and
shoulder muscles caused by the Accident. However, I find that by the time of
Dr. Beckman’s diagnosis in May 2011 any headaches suffered by the
plaintiff cannot be attributed to the Accident.

C.             
Conclusion on Causation

[74]        
The plaintiff must be compensated for losses due to an aggravation of
bursitis in the lateral aspect of the trochanter which was substantially
resolved by March 2011. The plaintiff must be compensated for losses incurred
by him for a soft tissue injury to his shoulder that substantially resolved
after about one month, and a soft tissue neck injury that substantially
resolved by May 2011. Finally, the plaintiff is entitled to compensation for
headaches experienced until May 2011 and an aggravation of his depression due
to the setback (perceived or otherwise) in his rehabilitation until November
2008.

[75]        
The plaintiff is not entitled to compensation from the defendant resulting
from post-surgical complications in his hip, such as sublaxating fascia lata,
tight iliotibial band or weak abductor muscles. The plaintiff is not entitled
to compensation from the defendant for his lower back issues which resulted
from a previous injury and arthritis in the spine. The plaintiff is not
entitled to compensation from the defendant for any neck injuries or headaches
after May 2011.

II.              
DAMAGES

A.             
Non-Pecuniary Damages

[76]        
It is difficult to differentiate between the extent of pain and interference
with the plaintiff’s enjoyment of life that was caused by the Accident between
June 2008 and May 2011, and that which was caused by the plaintiff’s hip
replacement, lower back pain, depression or analgesic headaches.

[77]        
The plaintiff claims that he is entitled to non-pecuniary damages in the
range of $85,000. The defendant submits that the plaintiff’s non-pecuniary
damages are in the range of $25,000.

[78]        
I have found that the aggravation of the plaintiff’s trochanteric
bursitis had receded by March 2011 and that his neck and Accident related
headaches were substantially resolved by May 2011, just short of three years
post-Accident. His shoulder injury resolved a month after the Accident and the
aggravation of his depression should have receded by five months post-Accident.

[79]        
There was little evidence of impact of the plaintiff’s Accident related
injuries on his pre-Accident activities, mostly because he was still recovering
from the hip surgery and was restricted in his activity level at the time of
the Accident.

[80]        
As stated earlier, his functional capacity by November 2008 was at the
same level as in the days before the Accident. The functional capacity
evaluation performed at the request of WorkSafeBC in October 2009 indicated a
sustained sitting tolerance of approximately one hour, a sustained standing
tolerance of 30 minutes, a sustained walking tolerance of 20 to
30 minutes before right hip pain and limitations in lifting due to right
hip and lumbar pain. It is notable that these records do not reflect any
complaints of neck or shoulder pain. In fact, they state that he demonstrated
the ability to fully reach, work at shoulder and overhead levels except for
slight right hip lumbar region discomfort.

[81]        
The plaintiff mentioned that he had been able to ride his bike for short
distances before the Accident but there was no evidence whether or when he was
able to resume bike riding.

[82]        
Nonetheless, I am satisfied that the plaintiff endured a significant
degree of pain, both physically and emotionally, from his Accident related
injuries, and he is entitled to reasonable compensation for that. Given the
plaintiff’s age, the nature and duration of his injuries, and the impact on his
enjoyment of life, I am of the view that his damages should be set at $40,000 (Laroye
v. Chung, 2007 BCSC 1478; Guilbault v. Purser, 2009 BCSC 188; and Carter
v. Zhan, 2012 BCSC 595).

B.             
Loss of Income

[83]        
Plaintiff’s counsel submits that more important than pre- and post-Accident
reports of pain suffered by the plaintiff is the evidence of pre- and post-Accident
disability suffered by the plaintiff. Counsel points to Dr. Lu’s opinion in
April 2008 that the plaintiff would be ready for a gradual return to work in
six to eight weeks. The expectation of the Back in Motion assessor on
May 29, 2008, was that the plaintiff would be returning to work in some
capacity in four to six weeks.

[84]        
However, neither Dr. Lu nor any other medical expert opined in their
report or testimony that the plaintiff would likely have been able to return to
work if he had not been injured in the Accident.

[85]        
In my opinion, the degree of disability of the plaintiff before and
after the Accident is most clearly reflected in the documentary evidence of the
activities of the plaintiff. The records of the Back in Motion rehabilitation
program reflect the plaintiff’s physical state and ability just before the Accident,
and six months after the Accident.

[86]        
In May 2008 the plaintiff’s sitting, walking and standing tolerances
were 20 to 30 minutes respectively. When he returned to the Back in Motion
program in November 2008, his sitting tolerance had improved to 30 to 60 minutes
and his walking and standing tolerances were the same as before the Accident. Therefore,
by November 2008, the plaintiff had recovered to the same state of function as
he experienced just before the Accident. Even by October 2009 his functional
capacity had not changed significantly.

[87]        
The evidence was overwhelming that the plaintiff’s inability to return
to work was related to the outcome of his hip surgery. Besides the opinions of
Dr. Lu and Dr. Sovio that the plaintiff’s bursitis was of a mild and
intermittent nature, there were medical reports written by Dr. Lai to
Canada Pension Plan (CPP) Disability Benefits, Co-Operator’s Insurance Company,
and To Whom it May Concern, respectively, all of which described the
plaintiff’s pre-Accident hip pain and surgery as the reason for his inability
to work.

[88]        
In the CPP disability application dated August 10, 2010, Dr. Lai
diagnosed a right hip fracture, right hip fracture in 1992, right hip
osteoarthritis in 2007, and right hip arthroplasty in 2007 as the cause of the
plaintiff’s disability. She made no mention of any headaches or soft tissue injuries
in the neck, shoulder or back. In cross-examination, Dr. Lai confirmed
that the listed diagnoses reported to Canada Pension Plan were not related to
the motor vehicle accident. Most importantly, and key to the outcome of this
case, Dr. Lai admitted that the ongoing problems the plaintiff has experienced
from his previously existing right hip problem, in and by themselves, would disable
the plaintiff from working; otherwise she would not have said this in her
report to CPP.

[89]        
Further, Dr. Lai confirmed to the Co-Operator’s Insurance Company in a
letter dated January 17, 2011, that it was the plaintiff’s “chronic right hip
pain and bursitis from post right hip arthroplasty” that disabled him from work
and qualified him for long-term disability. Specifically, she stated:

[The plaintiff] is limited in all
aspects of his activities of daily living by his persistent right hip pain. He
is unable to sit, stand or walk for greater than 30 minutes duration. He walks
with a limp because of his right hip replacement and pain in the right hip. … I
do not feel that [the plaintiff] is a competitive candidate for any type of
future employment due to the limitations caused by his right hip pain.

[90]        
When she completed the driver’s medical examination form, Dr. Lai
left blank the section entitled “musculoskeletal.” She confirmed on
cross-examination that by doing so, she was saying that the plaintiff did not
have musculoskeletal issues that would affect his driving.

[91]        
In the To Whom it May Concern letter dated March 1, 2010, Dr. Lai wrote
“[the plaintiff] suffers from chronic right hip and back pain resulting from a
past WCB related right hip fracture and subsequent right hip replacement
surgery. He is unable to sit, stand or walk for greater than 60 minute
intervals.”

[92]        
The overwhelming conclusion is that the plaintiff has not proved that he
suffered any loss of income as a result of the Accident. Furthermore, the
plaintiff has not shown any real possibility of income loss in the future because
of the Accident. Unfortunately, by the time of the Accident, the plaintiff’s
skull had already “crumbled” in that he was suffering from a manifest
disability that would have prevented him from working in any event.

C.             
Cost of Future Care

[93]        
The plaintiff claims that he will spend about $1,000 a year on massage
therapy and medications. Dr. Lu has also recommended shock-wave therapy or
acupuncture. The plaintiff submits that present valuing a reasonable sum
for cost of future care would be an award of $15,000.

[94]        
Unfortunately, due to my findings as to the extent and duration of the
injuries caused by the Accident, the plaintiff’s need for future care only
arises from his pre-existing ongoing chronic injuries that are not related to
the Accident. Therefore, he is not entitled to any damages from the defendant
in this regard.

D.             
Special Damages

[95]        
The plaintiff claims special damages of $4,664.32. The defendant accepts
a claim for Legacies Sports Massage, neck pillow and some mileage, for a total
of $505.75.

[96]        
I will allow the plaintiff’s claim for everything except mileage,
medication and parking after May 2011, by which time any injuries or aggravated
symptoms of the plaintiff had substantially resolved. The majority of expenses
seem to have been incurred before that date, so I will award the plaintiff
$4,000 under this head.

III.            
CONCLUSION

[97]        
The plaintiff has not made out a claim on the evidence for more than
$40,000 non-pecuniary damages and $4,000 special costs, for a total of $44,000.
The plaintiff is entitled to judgment for that amount, but the rest of the
plaintiff’s claim is dismissed.

“Kloegman
J.”