IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121121

Docket: M105953

Registry:
Vancouver

Between:

Christian Ludwig

Plaintiff

And

Sergio Frighetto

Defendant

Before:
The Honourable Madam Justice Ross

Reasons for Judgment

Introduction

[1]            
This is an action for personal injuries as a result of a motor vehicle
accident that occurred on April 28, 2010. The plaintiff, Christian Ludwig, was
the front seat passenger in a vehicle that was rear-ended by the vehicle driven
by the defendant, Sergio Frighetto. Liability is not an issue. The plaintiff
claims the following heads of damage:

(a)      non-pecuniary loss;

(b)      past wage loss; and

(c)      loss of future earning
capacity.

Facts

[2]            
Mr. Ludwig was born on July 19, 1972 in
Thunder Bay, Ontario and has lived in British Columbia since age five. He is 40
years old. Mr. Ludwig graduated from Burnaby Central High School in 1990. After
high school, he received a restaurant management certificate from Vancouver
Community College in 1991. Since that time he has taken various courses in the
hospitality industry and in driving.

[3]            
Mr. Ludwig was involved in four previous motor
vehicle accidents. The first one occurred when he was 16. In that accident, Mr. Ludwig
sustained a broken collarbone which was operated on twice. He reported that he recovered
fully in two to three years. The next collision occurred ten years ago when his
vehicle was t-boned. He reported that he hurt his left elbow in that accident and
that he recovered with physiotherapy. The third collision occurred four years
ago when Mr. Ludwig was driving a delivery truck and collided with a car. He
reported that he was not injured in that accident. The fourth collision
occurred three years ago when he rear-ended another car. He reported that he
was not injured in that accident.

[4]            
Mr. Ludwig had no prior WCB claims. Prior
to the collision, he reported that he was in good health. He had seasonal
asthma and occasional headaches. He testified that he did not have back pain
with prolonged driving and did not have sleep problems.

[5]            
At the time of the collision, Mr. Ludwig
lived with his wife, Virginia and their two children, Zachary, who is 14 and
Sydney, who is 9. Mr. Ludwig shared the housework with his wife. He
vacuumed and was responsible for mowing the lawn. The house was on an 11,000
square foot lot and he described the lawn as like a football field.

[6]            
Prior to the collision, Mr. Ludwig’s recreational
activities centred around his children. He skied in the winter with his
children at Grouse Mountain. In the summer he camped, swam and played on the
trampoline and Slip n Slide in the backyard. He also walked and ran with his
dog until September 2010 when his dog passed away.

[7]            
At the time of the collision, Mr. Ludwig
worked at Creekside Custom Foods as the Distribution and Logistics Manager. He
had worked there since 2004. Creekside supplies food to the Bread Garden, BC
Ferries, WestJet, and Chevron. In addition, it supplies hot lunch programs for
various schools throughout the Lower Mainland. As the Distribution and
Logistics Manager, Mr. Ludwig worked 40 hours per week, five days per week.
At times, he worked overtime and would bank the time.

[8]            
Mr. Ludwig stated that in a typical day,
for the first two hours, he would do administrative work and plan routes for
the drivers and then deliver hot lunch to schools from 10:00 a.m. to 2:00 p.m.
The hot lunch as were stacked in plastic trays called Cambros, which weigh a
couple of hundred pounds and Mr. Ludwig was responsible for loading and
unloading them from the truck. At minimum, he delivered three Cambros per day
and the maximum was eleven. After delivering the lunches, he returned to the
office, sometimes picking up supplies along the way. He would then work in the
warehouse to organize inventory, pack pallets, or do administrative duties for
the balance of the workday. Mr. Ludwig was paid $52,500 per year.

[9]            
The collision occurred on April 28, 2010 at 1:30 p.m.
Mr. Ludwig and his colleague, Chuck Yip, were on their way to pick up food
for lunch. Mr. Yip was driving his 2005 Nissan Altima. They were stopped
at the intersection of St. Albans and Granville in Richmond and waiting to
merge when they were rear-ended by the defendant’s Subaru Forrester SUV. Mr. Ludwig
stated that he had no warning of the impending collision and was not able to brace
or prepare for the impact. The Altima was pushed one to two feet ahead.

[10]        
Mr. Ludwig stated
that his body was thrown forwards and caught by the lap and shoulder belt. He
described the force as medium and blunt. Mr. Ludwig testified that he felt
pain in his neck and shoulder at the scene. He stated that he wrote down the
particulars at the scene. Mr. Ludwig did not go to the hospital. He
returned with Mr. Yip to the office and stayed for the balance of the work
day.

[11]        
Mr. Ludwig stated that he had pain in the
neck, shoulders and back and he felt a shooting pain into the buttocks that
night. He also had a headache.

[12]        
The next day, Mr. Ludwig attended his
family physician, Dr. Look. Mr. Ludwig testified that he was having
pain in the neck and shoulder. Dr. Look’s clinical records for April 28, 2010
note:

pain/stiffness neck and upper back on left.
limbs okay; h/a yesterday; no neck/back problems in past; stiff lower back this
am… Usu no lumbar pain.;no meds; no missed work

The clinical notes record on examination 

h/n n….,
tender left posterior neck/traps/upper back; tender lumbar bilateral; ROM neck
pain all directions

[13]        
Dr. Look’s diagnosis was neck and upper
back strain. He prescribed ice and anti-inflammatories and asked Mr. Ludwig
to return in two weeks. Dr. Look did not recommend any therapy and suggested
that Mr. Ludwig take time off work.

[14]        
Mr. Ludwig did not take time off work. He
stated that his employer frowned upon employees taking sick time. It was his
evidence that at some point during the recovery, he did take some time off when
he was groggy from the effects of painkillers and felt not in the condition to
drive.

[15]        
Mr. Ludwig stated that he went back to Dr. Look
in a couple of weeks. It was his evidence that at that point there was no
significant change in his headaches, back and shoulder pain, and the pain he
described as being in his buttocks. He testified that in that visit Dr. Look
recommended that he go to massage therapy.

[16]        
The clinical records reflect that the next visit
took place on May 25, 2010, about a month later. The records contain the
following:

pain and stiffness upper back/neck; worse on
l; no missed work; driving truck 3 days per week; aggravated by driving;

on examination-

tender l posterior
neck; tender bilat lumbar; massage ther

[17]        
Mr. Ludwig did not attend massage therapy. It
was his evidence that Mr. Yip had gone to physiotherapy but had reported
no improvement. Mr. Ludwig said that he had a busy schedule and felt that
he could not allocate time to a treatment if it was not going to result in
improvement. He said that Dr. Look recommended swimming as an alternative and
that he did engage in that activity.

[18]        
Mr. Ludwig testified that for the rest of
that year his symptoms were constant, but manageable. He stated that the pain
was in his neck, shoulders and low back and that he continued to suffer from
headaches. He stated that he had suffered from headaches before the accident,
but the headaches after the accident were more intense.

[19]        
It was his evidence that lifting, driving,
sitting and the physical demands of his work made the symptoms worse. He stated
that he developed a problem sleeping. He testified that he generally sleeps on
his left side, and that was the side that hurt. He would wake approximately
every two hours and re-adjust his position.

[20]        
It was his evidence that he took up swimming on Dr. Look’s
recommendation. He did not mow his lawn, but hired a gardener. He stated that
he gained 15 to 20 pounds. It was his evidence that the medication that he was
prescribed did not help and left him groggy.

[21]        
Mr. Ludwig separated from his wife,
Virginia, in September 2010. He acknowledges that the collision did not cause
the breakdown of the marriage.

[22]        
Dr. Look’s clinical records note two further
visits in 2010 in June to deal with pneumonia. In July and August 2010, Dr. Look’s
office left telephone messages for Mr. Ludwig to come in to see Dr. Look
for the purpose of completing a CL 19 form for ICBC.

[23]        
Mr. Ludwig attended on Dr. Look on
August 18, 2010 for that purpose. The clinical notes with respect to that visit
state:

pain between shoulder blades, esp
driving/sitting for 1 hour; logistics and distribution mgr with food
manufacturer usually office work; some time lower back otherwise fine; sleep
still disrupted b/c upper back pain wakes a few times a night therefore kicked
out of bedroom by spouse; neck is stiff sometimes; no h/a after a few weeks; no
meds; no missed work; avoiding trampoline and gym swimming helpful; no massage
no physio

on examination, the notes record

tender r neck; tender r traps between scap;
ROM neck r lat pain with lat flex to l; ROM back pain with rotation to r; pain
in r upper back

the diagnosis
was neck and upper back strain

[24]        
Dr. Look prepared a CL 19 form. The form noted
tenderness in the right cervical and thoracic spine; none noted in the lumbar
spine or with straight leg raising; pain on palpation in the thoracic spine
with right rotation and in the cervical spine with left lateral flexion and
none in the lumbar spine. The subjective complaints noted were neck and upper
back pain and stiffness. The current subjective complaints were neck and upper
back pain, worse with sitting/driving over an hour, sleep disturbance. Dr. Look
concluded that the motor vehicle-related injuries were not preventing the
patient from returning to working full duties full-time. He noted limitations
with respect to the trampoline and gym and remarked that Mr. Ludwig was
recovering nicely.

[25]        
Mr. Ludwig attended Dr. Look on
September 9, 2010. The clinical records note:

driving x 2 ½ wks 8 hrs daily, back
aggravated …entire back,  tylenol; swimming three times a week.

[26]        
There was a further visit on September 13, 2010.
The clinical notes state:

pain persists
since past week or so; during past t2 weeks constant pain with no relief;
taking naproxen and cyclobenzaprine without benefit; massage therapy; painful
to pick up kids 7-year-old daughter; did not mow lawn this summer; limited
driving b/c driver back; will be driving 4 hrs daily next week; declined pills;
posture bad b/c low back pain

[27]        
Mr. Ludwig testified that by the end of
2010 he was becoming more active. He was increasing his core strength and his
general fitness. He walked and then ultimately jogged six to eight kilometres, six
days a week. He was swimming twice a week.

[28]        
It was Mr. Ludwig’s evidence that in the
spring of 2011 he felt about the same. The pain was in the same areas. His
sleep continued to be poor. When he had a bad sleep that resulted in low energy,
he felt bad. He said he was sent to a sleep apnea specialist in March 2011 and
received a diagnosis of mild to moderate sleep apnea. It was his evidence that
sleep was not an issue for him prior to the motor vehicle accident although he
was overweight prior to the accident and he did snore, two conditions
associated with sleep apnea.

[29]        
It was his evidence that in the summer of 2011
he was not doing as much driving at work because there were no school
deliveries. He stated that his neck and shoulder felt better, but his low back
was the same. He stated that he continued to suffer from headaches and poor
sleep. He was still carrying on with the walking, jogging and swimming program
and had lost 36 pounds.

[30]        
Dr. Look’s clinical records note a visit on
March 1, 2011. On that date the notes reflect that Mr. Ludwig complained
of

lumbar pain, shooting pain down  R leg to  foot. naproxen and
flexerill; dieting,  up to 270 lbs now 238 lbs; walking daily  6-8 kms; treadmill;
difficulty sleeping b/c   back stiffness; separated; living on own….

[31]        
Mr. Ludwig was back to see Dr. Look
again on March 4, 2011. The clinical records note:

pain, bilat upper back – stiff and sore;
neck ok in  past few months, occas stiff; still not able to exercise. eg
walking/ jogging on  treadmill; walking in January. ok; after sitting 1 hour
tightness in upper and lower back; working F/T, 2 days off 5 months ago, 1 day
off after taking meds feeling groggy the next day 6 weeks ago,

not skiing, unable to pick up 7-year-old
daughter, unable to mow lawn, sleep, still poor; mood off because poor sleep,
h/a due to poor sleep, no meds currently

on examination,

ROM neck pain rotation r and l and flax/ext’

ROM shoulder normal bilat;

ROM back pain with ext, lat, flex, bilat,
roration bilat

tender under
scapulae bilat;  tender lumbar  bilat;

[32]        
Mr. Ludwig attended on Dr. Look on
June 9, 2011. The clinical records reflect the diagnosis of mild to moderate
obstructive sleep apnea. Reference is made to very stressful divorce.

[33]        
Mr. Ludwig attended on Dr. Look in
August and November 2011 for visits that had nothing to do with the motor
vehicle accident. Mr. Ludwig reported that in January 2012 he bought a
road bike and started biking as opposed to jogging. He found that his weight
increased when he stopped jogging. He had suffered an injury to his calf and so
could not jog.

[34]        
Mr. Ludwig reported that in the spring of
2012 the pain in his neck and shoulders was intermittent. He stated that the
low back pain, however, was constant. The symptoms were aggravated by driving. He
said that he still had trouble sleeping and headaches. He described his mood as
improved. At this time he was prescribed Celebrex, a new medication for his
lower back, and found it to be helpful.

[35]        
Dr. Look’s clinical records reflect a visit
on February 22, 2012 at which Mr. Ludwig noted that he was driving a lot
at work and had back pain and stiffness. His weight was recorded to be 260
pounds. On examination, Dr. Look recorded lumbar tenderness bilaterally.
He prescribed medication, diet and exercise.

[36]        
Mr. Ludwig returned to Dr. Look on March
12, 2012. In this visit he complained of low back pain. The clinical records
note :

low back pain; driving a lot recently; not
exercising.

On examination, the clinical records reflect
:

no lumbar
tenderness, ROM back pain all directions, wt 259 pounds.

[37]        
Mr. Ludwig returned to Dr. Look on May
29, 2012. The visit primarily dealt with matters unrelated to the motor vehicle
accident. The record notes pain lower left spine, one year, worse without
exercise.

[38]        
Mr. Ludwig visited Dr. Look again on June
12. The clinical records note

shoulders/upper back, better – stiff, but
not as bad. Worse with sleeping on that side. Wakes up at night  but sleep not
bad otherwise. Aggravated by driving too long or when reversing into loading
bay when making contact. Lower back, worse than before – constant pain. Back
stiff in  morning on waking. Shoulder and back aggravated by prolonged sitting.
Tylenol and advil in a.m. Celebrex on occasion. Exercise inc bike riding as
advised; running not tolerated by back. …. Did not ski this year b/c of
injury. Work full time with discomfort. Missed few days since accident, mainly
shortly following accident.

On examination

tenderness, l
spine and bilat lumbar; ROM . Pain, especially forward flex and ext; ROM
shoulders normal bilat wt 259

[39]        
Mr. Ludwig stated that in July 2012 he was
injured at work, suffering an injury to his calf. Dr. Look recommended
that he take one to two weeks off work, but Mr. Ludwig went to work anyway.
He found that the calf got a lot worse so that he began to experience problems
walking. He could not do anything physical, including gentle walking and
picking things up. In the result, he had to take time off work, totalling two
and a half weeks.

[40]        
Mr. Ludwig returned to Dr. Look on
July 17, 2012 in relation to the calf injury suffered at work. There were
subsequent visits to deal with this injury on July 24, August 10 and September
6, 2012.

[41]        
The occupational rehabilitation intake report prepared
in conjunction with the rehabilitation program dated August 29, 2012 notes that
Mr. Ludwig stated that since that injury he has had an increase in his low
back symptoms due to his altered gait that was caused by the calf injury.

[42]        
Mr. Ludwig returned to his employment on
August 13, 2012 to light duties. He was told shortly after that his position
had been eliminated because his employer had no work for him. Following this,
he entered into a rehabilitation program through WorkSafeBC. The program was
primarily for his calf injury but there was also work on his core strength,
whole body and back.

[43]        
Mr. Ludwig began work in a new position at Centennial
Foods on October 9, 2012. The position is a new position for Centennial Foods
and similar to his job at Creekside. He will be in a warehouse doing shipping
and receiving and driving two to three days per week. There will be a heavy
physical component to his job. Mr. Ludwig testified that he has some
concerns that these demands will aggravate his pain. He will be paid $19 per
hour which is approximately $39,000 per year.

[44]        
At present, Mr. Ludwig lives in a basement
suite in Port Coquitlam. He is able to carry out all of the housework. He
shares joint custody of his children. It was his testimony that he has not
returned to running, jumping on the trampoline, playing on the Slip n Slide, or
skiing – all of the activities he enjoyed doing with his children. It was
his evidence that the injuries affected his relationship with his children and
in particular, with his daughter Sydney.

Expert Evidence

[45]        
In his March 6, 2011 report, Dr. Look
states at p. 3:

Mr. Ludwig was seen most recently on
March 4, 2011. He was still complaining of a stiff and sore upper back
bilaterally. He mentioned that his neck has been okay for the past few months
except for occasional stiffness. He finds that he still is not able to exercise
such as walking or jogging on a treadmill. He had been walking in January 2011
and that was tolerated well apparently. He notes that after sitting for about
one hour there is tightness in the upper and lower back. He continues to work
full time. Looking back he did miss two days of work about five months ago and
one day about six weeks ago after taking medications and feeling groggy the
following day. He has not been skiing and has not been able to pick up his
seven year old daughter and has been unable to mow the lawn. His sleep
continues to be poor and he feels that he is moody because of this. He also
suffers from some headaches due to his difficulty with sleep. He is not taking
any regular medications currently. On examination there was tenderness in the
upper scapular area and tenderness in the lumbar areas bilaterally. Range of
motion of the neck revealed pain with rotation to the right and left, as well
as on flexion and extension. Range of motion of the shoulders was normal
bilaterally and the range of motion of the back showed pain with extension and
lateral flexion bilaterally and with rotation to the right and left. He was
prescribed activities as tolerated, as well as Tylenol and Advil p.r.n.

In summary, Mr. Ludwig
continues to have some symptoms which may be attributable to the neck and back
particularly the upper back strain sustained in his motor vehicle accident in
question. His right sciatica symptoms noted in recent weeks may not be related
to the motor vehicle accident. His ongoing difficulty with activities such as
jogging and sitting for prolonged periods, as well as difficulty with sleep may
all be due to injuries suffered from his accident. His continued difficulties
with sleep may interfere with his full recovery and certainly can have a
negative effect on his mood. He has not missed much work, 3 days in the almost
1 year since his accident but he does have continued discomfort because of an
injury sustained in his accident. I anticipate that with time over the next
several months and with continued activities and treatment that his symptoms
should diminish and that he should be able to resume most, if not all, of his
pre-accident activities. It is expected that he should have a near full
recovery from his accident related injuries over the next several months or the
next few years.

[46]        
Dr. Look clarified in oral evidence that
when he used the term “may” in the report he meant “likely”.

[47]        
In his July 9, 2012 report, Dr. Look states
at p. 4:

He was seen next and most recently on June
12, 2012. He mentioned that at this time his shoulder and upper back were
better. There is still some stiffness but not as bad as previous. He was worse
when sleeping on his affected side. He mentions that he still wakes up at night
but the sleep is not bad otherwise. His symptoms are aggravated by driving for
long periods particularly when reversing his car at work into the loading bay
as his vehicle makes contact with the bay. His lower back is worse than before
and he complains of constant pain. There is back stiffness upon waking up in
the morning. His shoulder and back are aggravated by prolonged sitting. He
takes Tylenol and Advil in the morning and Celebrex on occasion. He exercises
including bicycle riding as advised. He has not been able to tolerate running
because of his back. He has not participating in any recent massage,
physiotherapy, acupuncture, or chiropractic treatments. Because of his injuries
he did not ski this past year but has continued to work full time despite the
discomfort. He has missed just a few days since the accident as mentioned
above. When examined this day there was tenderness in the lumbar spine and on
both sides of his lower back. Range of motion was of his back revealed pain
especially with forward flexion and extension. His shoulder range of motion was
normal on both sides. He weight on this date was noted to be 259 pounds. For
his ongoing symptoms for his upper back strain, he was prescribed activity as
tolerated and Tylenol or Advil as needed.

In summary, Mr. Ludwig has suffered
neck and back strain particularly the upper back which is due to his April 28,
2010 MVA. His symptoms seem to be worse with prolonged sitting and driving and
have interfered with his sleep. He has not missed more than a few days since
the accident. But his work, which does require driving at times and sometimes
prolonged sitting seems to have aggravated his symptoms at times. His
recreational activities have been significantly curtailed including his
household chores and yard work and he has been unable to work out significantly
because of his injuries. Activities such as picking up his seven year old
daughter have been difficult because of his symptoms. His neck has seemed to
improve and he most recently has just had lower back pain. He continues to need
some ongoing pain killers with ongoing physical activity and exercise to
continue his rehabilitation.

….

His obstructive
sleep apnea as well as going through a stressful divorce may interfere with his
sleep and mood. His right sided sciatica was noted in spring 2011 may not be
necessarily related to the accident. It is difficult to see what portion of his
ongoing lower back complaints are still related to his MVA. In any case, I
think his condition will improve over the next several months and years.
Although, sciatica symptoms may come up again in the future, it appears he may
continue to have ongoing symptoms for some time in the order of at least the
next few years especially with other issues that would be affecting his sleep,
as well as the possible lumbar disc problem which may be giving rise to his
sciatica symptoms. Given the past couple months, unfortunately I anticipate
that Mr. Ludwig will continue to have back issues for the foreseeable
future. Hopefully, with increased exercise and pain medication as needed he
will continue to improve and hopefully his sciatica pain will not be a
significant issue in the future, although this is difficult to predict. If it
turns out that he does have significant lumbar disc problem surgery may have to
be something that is contemplated in some situations.

[48]        
Dr. Stewart is an expert physiatrist. In
her March 15, 2011 report, Dr. Stewart states at pp. 7-8:

Mr. Ludwig reported that he had none of
his presenting problems prior to the motor vehicle collision of April 28, 2010,
and Dr. Look’s report to ICBC corroborates that history. Subsequent to the
collision Mr. Ludwig experienced neck and back pain and headaches, and his
symptoms had persisted largely unchanged when I saw him seven months after the
collision. In addition to his other symptoms, he had signs and symptoms of
nerve root irritation in the right leg but no impairment of nerve function on
examination. He had had no rehabilitation for his injuries at that time. Given
his history, it is my opinion that Mr. Ludwig sustained soft tissue injury
to his neck and back in the motor vehicle collision, and that his symptoms have
been aggravated by the physical demands of his job, including the need to sit
to drive. He was still early in his recovery from his injuries.

….

In my opinion Mr. Ludwig’s
failure to pursue the massage therapy and medications prescribed by Dr. Look
in no way hindered his recovery from his injuries. He will not require any
surgery in future because of his injuries. His injuries will not result in
degenerative changes in his spine or joints in the future.

Non-Pecuniary Loss

[49]        
Mr. Ludwig was 40 years old and in good
health at the time of the collision. Counsel submits that as a result of the
collision, Mr. Ludwig suffered soft tissue injuries to his neck, upper
back/shoulders, and low back which continue to impact him more than two years
later. As a result of his physical injuries, his sleep is poor and he is more
irritable and short tempered at times. It was submitted that Mr. Ludwig’s
life has been affected in all realms – at work, with friends, at home, and
with his children. He cannot enjoy the activities that he once did with his
children.

[50]        
Mr. Ludwig submits that the case law
establishes a lower range between $23,000 and $30,000 for soft tissue injuries
to the neck and back along with headaches and poor sleep when the injuries have
resolved in less than two years. Counsel submitted that when the pain persists
longer than two years and is chronic for the foreseeable future, the case law
establishes a higher range between $55,000 and $63,000. The plaintiff  cited
the following cases in relation to this issue: Pardanyi v. Wilson, 2004
BCSC 1804; Orrell v. Lynch, 2008 BCSC 1696; Pratt v. Barlow, 2008
BCSC 1764; Driscoll v. Desharnais, 2009 BCSC 306; Ryan v. Klakowich,
2011 BCSC 835; Guzman Gonzalez v. Dueck, 2012 BCSC 792; Scoffield v.
Jentsch, 2012 BCSC 1130.

[51]        
Mr. Ludwig submitted that, given the nature of his injuries and that the injuries have still not
resolved, the non-pecuniary award should be set at $45,000.

[52]        
The defendant submitted that the plaintiff was
involved in a minor accident. The vehicle Mr. Ludwig was in required only $878.94
in parts and labour to repair. The defendant’s vehicle suffered no damage,
except for a crack to the licence plate holder. Neither Mr. Frighetto nor Mrs. Frighetto
was injured in the accident, although both are elderly and Mrs. Frighetto
suffers from back problems.

[53]        
The defendant submitted that minor accidents
involving virtually no damage to either vehicle are situations in which the
court should take a cautious approach toward findings on damage, particularly
where there were difficulties with the plaintiff’s credibility:  see Vasilyev
v. Fetigan, 2007 BCSC 1759. In addition, the defendant relies upon the
caution expressed in Price v. Kostryba (1982), 70 B.C.L.R. 397, with
respect to the circumstances where there is little or no objective evidence of
continuing injury and where complaints of pain have persisted for long periods
extending beyond the normal or usual recovery.

[54]        
It was the defendant’s submission that Mr. Ludwig,
while credible, was a poor historian. Counsel submitted that his evidence lacked
specificity, and did not match the history of complaints set out in Dr. Look’s
clinical records. The defendant concedes that Mr. Ludwig suffered a strain
of his neck and upper back. Counsel submits that this complaint resolved as
early as September 2010 or at the latest March 2011.

[55]        
The defendant submitted that the moodiness and
sleep disturbance were caused by other non-accident related issues. In
addition, the defendant submitted that the complaints of low back pain and
shooting pain down the right leg were not a result of the accident. It was the
defendant’s submission that the pain and suffering complained of from September
2010 was caused by a change in the plaintiff’s activity, resulting in daily
driving up to eight hours a day. In the defendant’s submission this was a new
and separate event which led to Mr. Ludwig’s complaints and accordingly he
is not entitled to compensation from the defendant for that particular injury.

[56]        
It was the defendant’s submission that, in the
circumstances, the proper award for non-pecuniary damage from mild neck and
upper back strain that had resolved within six months of injury is $7,000 to $9,000,
citing the following cases in support: Booth v. Hedderick, 2004 BCSC
132; Al-Mundlawi v. Gara, 2005 BCSC 740; Vasilyev; Bentrott v.
Weich, 2008 BCPC 50; Gradek v. DaimlerChrysler Financial Services Canada
Inc., 2009 BCSC 1572; Morales v. Neilson, 2009 BCSC 1890; and Parmar
v. Lahay, 2011 BCSC 1628.

[57]        
It is the case that this collision was at low
velocity and resulted in very little appreciable damage to either vehicle.
Moreover, neither of the Frighettos suffered any injury. However, they were
both able to prepare for the collision. In any event the question is what
injuries, if any, were suffered by the plaintiff. In making that determination
the credibility and reliability of the plaintiff’s evidence is a crucial
consideration. In that regard, I found Mr. Ludwig to be a credible
witness, but a relatively poor historian with respect to his injuries.

[58]        
I do not, however, agree with the defendant’s
submission that Mr. Ludwig’s low back complaints were caused by factors
unrelated to the motor vehicle accident. First, Mr. Ludwig did not suffer
from low back complaints prior to the motor vehicle accident in question. Second,
while Dr. Look acknowledged that low back complaints can be caused by
prolonged driving, in this case Mr. Ludwig had been doing considerable
driving during all but the summer months as part of his work and, prior to the
accident at issue, had not suffered low back pain. Finally, Dr. Look noted
on examination tender lumbar bilateral on the day following the motor vehicle
accident.

[59]        
However, while I find that the motor vehicle
accident resulted in low back strain, I have concluded that Mr. Ludwig’s
evidence that the low back pain has been virtually continual since the accident
to be unreliable. I note that there were substantial periods shortly after the
accident in which Mr. Ludwig did not complain of lower back pain, and when
none was noted on examination.

[60]        
In addition I have concluded that the motor
vehicle accident is not the only cause contributing to the lower back pain that
Mr. Ludwig complains of at present. For example, it appears that Mr. Ludwig
reported that the calf injury suffered at work in July 2012 resulted in an
increase in his low back symptoms due to his altered gait. Further, Dr. Look
stated that “it is difficult to see what portion of his ongoing lower back
complaints are still related to his MVA.”

[61]        
This is significant in this case because a
plaintiff is entitled to be compensated for the damage caused by the tortious
act, not for the consequences of independent intervening acts. As Mr. Justice
Major, for the Court, explained in Athey v. Leonati, [1996] 3 S.C.R. 458,
at para. 32:

To understand
these cases, and to see why they are not applicable to the present situation,
one need only consider first principles. The essential purpose and most basic principle
of tort law is that the plaintiff must be placed in the position he or she
would have been in absent the defendant’s negligence (the “original position”).
However, the plaintiff is not to be placed in a position better than his
or her original one. It is therefore necessary not only to determine the
plaintiff’s position after the tort but also to assess what the “original
position” would have been. It is the difference between these positions, the
“original position” and the “injured position”, which is the plaintiff’s loss.
In the cases referred to above, the intervening event was unrelated to the tort
and therefore affected the plaintiff’s “original position”. The net loss was
therefore not as great as it might have otherwise seemed, so damages were
reduced to reflect this.

[62]        
I find that the motor vehicle accident caused
neck, shoulder and upper and lower back strain. The symptoms attributable to
the motor vehicle accident, particularly in the neck, shoulder and upper back
have improved substantially but have not completely resolved. Prolonged sitting
or driving will result in a flare-up.

[63]        
I agree with the defendant’s submission that the
shooting pain extending into the right leg described by Mr. Ludwig is not
related to the motor vehicle accident. I find that Mr. Ludwig’s
recollection that this symptom arose immediately following the accident is
mistaken. I note that Dr. Look’s clinical records make no reference to
reports of such pain or to observations on examination consistent with such
pain until nearly one year after the motor vehicle accident. The first
reference to shooting pain down the right leg to the foot occurs in the
clinical records of March 1, 2011. Finally, Dr. Look’s opinion was that
the right sciatic symptoms “may not “be related to the motor vehicle accident. As
noted earlier, Dr. Look clarified in his evidence that when he used the
term “may”, he meant likely.

[64]        
Mr. Ludwig alleges that the motor vehicle
accident has caused poor mood and that this has continued to the present. I
accept that this was the case in the immediate aftermath of the accident;
however, by the fall of 2011, I find that other factors, notably the difficult
divorce and later loss of employment, were the cause of Mr. Ludwig’s poor
mood.

[65]        
With respect to the complaints of disturbance to
sleep, I accept that in the immediate aftermath of the accident the pain,
particularly in the upper left side of the back, interfered with Mr. Ludwig’s
sleep. I accept that when Mr. Ludwig has flare-ups his sleep is disturbed.
However Dr. Look stated in his opinion of July 9, 2012 that the
obstructive sleep apnea as well as going through a stressful divorce may (likely)
interfere with his sleep.

[66]        
Mr. Ludwig stated that he suffered from
headaches before the motor vehicle accident, but that following the accident
the headaches were more intense. I accept that this was the case for a period
of some months; however as the neck and upper back strain resolved, I find the
headaches had returned to his pre-accident frequency and severity again except
in response to flare-ups. In that regard, I note Dr. Look’s clerical notes
of August 18, 2010 which state no headache after a few weeks and the paucity of
reports concerning headache thereafter in the clinical records.

[67]        
The soft tissue injuries that Mr. Ludwig
suffered have improved but have not completely resolved. While he is not
disabled from performing his job functions, certain aspects of the physical
demands of his employment, such as driving or sitting for extended periods
aggravate his symptoms. The injuries have interfered with his enjoyment of
leisure activities and playing with his children. His prognosis for a full
recovery is promising but still uncertain. I award $30,000 for non-pecuniary
loss.

Mitigation

[68]        
The defendant submits that Mr. Ludwig
failed to mitigate his damages by failing to follow the recommendations of Dr. Look.
However while it is true that Mr. Ludwig did not take the massage therapy
that Dr. Look prescribed, Dr. Look stated that it was optional if Mr. Ludwig
was able to continue to be active without it. Mr. Ludwig did continue to
be active and did commence swimming as recommended by Dr. Look. Mr. Ludwig
did not take some of the medications prescribed because of adverse side effects.
Dr. Stewart stated that the failure to pursue massage therapy and
medications prescribed by Dr. Look in no way hindered Mr. Ludwig’s
recovery.

[69]        
I find that the defendant has not met the burden
to establish that Mr. Ludwig failed to mitigate his damages.

Past Wage Loss

[70]        
Mr. Ludwig submits that at the time of the
collision, he worked 40 hours per week and earned $52,500 per year. He asserts
that, as a result of his injuries from the collision he took two sick days and four
vacation days, which were paid by Creekside to him. He seeks recovery for this
amount as past wage loss.

[71]        
Reference was made to an agreement dated July
12, 2011 between Creekside food and Mr. Ludwig whereby the parties agreed
that:

…in any case
where an employee is paid by Creekside foods during any absence due to illness
or injury where the employee receives compensation from a third party …for an
accidental bodily injury or illness, there should be no “double dipping”.
Employees shall agree to repay to Creekside food the total amount of compensation
they receive or will in future receive from Creekside foods for the periods of
disability resulting from the above-noted accident or illness, in the event
they receive any compensation from a third party ….for that same period.

[72]        
In addition, Mr. Ludwig relied upon a memo
on Creekside stationery from Ellen dated July 21, 2011, which states:

In response to your letter dated July 18,
2011. Please see below:

1.         The amount owed to Creekside
foods for repayment of the two sick days would $400.00 ($25/HR x 16 hours).

2.         The
money for Chris to repurchase his four vacation days would be $800 ($25/hr x 32
hrs).

[73]        
Some reference to missing work as a result of the injuries suffered in a
motor vehicle accident is found in the clinical records of Dr. Look. There
are the following references:

·      
April 29, 2010 – no missed work.

·      
May 25, 2010 – no missed work.

·      
August 18, 2010 – no missed work.

·      
In his March 6, 2011 report, Dr. Look states
“he has not missed much work, 3 days in the almost 1 year since his accident …”

·      
March 4, 2011 – 2 days off 5 months ago, 1 day off after
taking meds and feeling groggy the next day, 6 weeks ago.

·      
June 12, 2012 – work full time with discomfort, missed few
days since accident, mainly shortly following accident. It
should be noted however that this report appears to be inconsistent with the
notes made shortly following the accident since shortly following the accident
the notes indicate no missed work. It also appears to be inconsistent with the
note made in 2011 since that notation does not relate to a time frame shortly
following the accident.

[74]        
It should be noted that Dr. Look’s medical records do contain
specific reference to missed work with respect to other reasons unrelated to
the motor vehicle accident. In addition, the records contain a copy of a
doctor’s note certifying that he was unable to work for medical reasons on
specified dates as a result of a chest ailment. No such note is present in
relation to any time taken off work in relation to injuries suffered in the
motor vehicle accident.

[75]        
It is the position of the defendant that the plaintiff had not yet to
prove that there is past wage loss as a result of injuries suffered from the
accident. Counsel notes that the plaintiff’s evidence is sketchy with respect
to this issue. He was not specific with respect to how many days he actually
missed from work as a result of injuries sustained in the accident, and when these
occurred.

[76]        
It was the plaintiff’s evidence that when he would phone in to advise
the employer that he was taking time off work he would give a reason and the
representative from Creekside would make a note of that. However, there is no
evidence from Creekside to that effect. In addition, the document from
Creekside makes reference to two sick days and four vacation days, but does not
specify that these were days noted to be in relation to injuries suffered from
the motor vehicle accident. There is evidence that Mr. Ludwig took time
off work for other reasons as, for example, when he was suffering from
pneumonia.

[77]        
The burden is on Mr. Ludwig to establish this loss. I have
concluded that he has failed to discharge this burden and make no award for
past wage loss.

Loss of Income Earning Capacity

[78]        
Mr. Ludwig submits that he suffers from chronic soft tissue damage
to his neck, upper back, shoulders, and low back. As a result, he says that he
cannot sit or drive for long periods and has difficulty moving or carrying
heavy items. This damage has impaired his ability to earn income. Counsel
submits further that it is a “common sense inference” that:

constant and continuous pain
takes its toll, and that over time,  such pain will have a detrimental effect
on the person’s ability to work, regardless of what accommodations the employer
is prepared to make.

[79]        
Counsel submits that, based on Dr. Look’s optimistic prognosis for Mr. Ludwig’s
recovery, and given that he has 25 years left in the workforce, his loss of
future earning capacity should be set at $20,000, being an amount that is fair
and reasonable, representing half of his annual income.

[80]        
It was the defendant’s position that Mr. Ludwig is not entitled to
an award for loss of capacity to earn income as a result of the injuries
suffered in the accident. The defendant notes that Mr. Ludwig was substantially
recovered from the injuries within months of the accident. There is no
prognosis that he has suffered permanent injury or that he suffers from any
disability to work.

[81]        
It was the defendant’s submission that the plaintiff bears the onus to
prove that the future losses are a real possibility and that there is a
reasonable chance that such loss will occur. Counsel submitted that there must
be evidence that the plaintiff has suffered a permanent injury and permanent
pain which limited his capacity to perform certain activities and permanently impaired
his income earning capacity.

[82]        
In Perren v. Lalari, 2010 BCCA 140, Madam Justice Garson stated
the test at para. 32 as follows:

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

[83]        
In the present case, I have concluded that Mr. Ludwig did not establish
that he lost time from work as a result of the accident. Moreover, while he
suffered injury, the injuries did not disable him from performing his functions
at work. His employment with Creekside was terminated but for reasons unrelated
to the injuries suffered in the motor vehicle accident. He has since found new
employment with similar duties. Counsel submitted that the court could infer
that the reduced salary associated with the new position is the result of the
reduced bargaining power of an injured worker. There is no evidence to support
such an inference and it would be pure speculation to reach that conclusion.

[84]        
I find that there is no ongoing disability caused by the motor vehicle
accident that would impair his ability to earn income. Mr. Ludwig submits
that the constant pain will erode his ability to earn an income. However, while
he continues to experience pain, his prognosis is generally positive, thus
distinguishing this case from situations such as Morlan v. Barrett, 2012
BCCA 66, in which the court found a real and substantial possibility that the
fibromyalgia would shorten the plaintiff’s career as well as a substantial
possibility that the plaintiff’s condition would worsen over time. Neither
feature is present in this case. Mr. Ludwig’s prognosis is positive. There
is no suggestion that the injuries caused by the motor vehicle accident could
shorten his working life. Nor is there any evidence of opportunities that are
not available to Mr. Ludwig because of his injuries.

[85]        
The plaintiff relies upon Driscoll v. Desharnais, 2009 BCSC 306. However,
in that case, the court found that the plaintiff was no longer able to do all
of the work he could do previously and that fewer opportunities were available
to him. He was forced to obtain the assistance of younger workers to assist in
performing tasks that he was able to perform before he was injured. None of
those features are present in this case.

[86]        
Mr. Ludwig does continue to suffer from pain. However, as Madam
Justice MacKenzie noted in Moore v. Cabral, 2006 BCSC 920, at para. 78:

Ongoing symptoms alone do not
mandate an award for loss of earning capacity.

[87]        
I find that Mr. Ludwig has not established a real and substantial
possibility of a future loss of income.

Conclusion

[88]        
In the result, I award Mr. Ludwig $30,000 for non-pecuniary loss.

“Ross J.”