IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121219

Docket: M052368

Registry:
Vancouver

Between:

Alan Lennox

Plaintiff

And

Azmal Ahmed-Rumiul
Karim

Defendant

Before:
The Honourable Mr. Justice Armstrong

Reasons for Judgment

Introduction

[1]            
Alan Lennox was injured in a car accident on August 16, 2003, when his
car was struck by the defendant’s car at the intersection of E 12^th
Avenue and Fraser Street in Vancouver (“the accident”). The defendant entered
the intersection against a red light and hit the front left side of Mr.
Lennox’s car. Liability for the accident is admitted by the defendant.

[2]            
Mr. Lennox suffered injuries to his neck, back, right hand/wrist, and
right knee. He has been diagnosed with a torn meniscus in the right knee but
there is disagreement about the cause of that condition. The defendant
recognizes that Mr. Lennox is entitled to damages for soft tissue injuries
resulting from the collision but not for the effects of his torn meniscus. The
measure of his damages depends largely on whether he suffered a torn meniscus
in his right knee in the accident.

[3]            
Mr. Lennox seeks non-pecuniary damages and an award for past loss of
income earning capacity.

[4]            
This action was commenced on May 30, 2005.

Facts

The Plaintiff

[5]            
The plaintiff, 51, is a father of three young children and resides
permanently in Toronto, Ontario. At the time of the accident, the plaintiff was
in a relationship with Mary Vassilio. They lived together from 2002 until 2005.
During this relationship Mr. Lennox and Ms. Vassilio had one child. He also has
two daughters, ages 4 and 5, from a previous marriage to Deborah Williamson. He
shares custody of his two daughters. Mr. Lennox and Ms. Williamson were
divorced at the time of the accident and were involved in an ongoing parenting dispute.
They had reached an agreement in February 2003 but Mr. Lennox was pursuing other
parenting issues. He believed that Ms. Williamson had a substance abuse problem
which complicated his ongoing relationship with her. During the summer of 2003 they
arbitrated the outstanding disagreements regarding the children’s activities
and issues; after the arbitration Mr. Lennox continued to share day-to-day care
of his daughters.

[6]            
Mr. Lennox is active and involved in the children’s lives notwithstanding
temporary absences from Toronto for his work. He is employed as a camera
operator in the film industry.

[7]            
For many years prior to the accident Mr. Lennox’s primary employment was
as a steady camera operator in the film industry. A steady camera operator is
typically required to carry a 50 pound camera strapped to their body while filming
in physically intense and concentrated sessions extending from 30 seconds to 4
minutes. This work requires strength and dexterity.

[8]            
Mr. Lennox was a painting and interior decorator apprentice from 1979 to
1980. He also worked as a commercial painter and was the proprietor of a
painting business in Toronto.

[9]            
In the late spring of 2003 and through the summer, Mr. Lennox had obtained
film work in Vancouver and lived in BC until September 2003 when he returned to
Toronto.

The Accident

[10]        
At the time of the collision Mr. Lennox was travelling at approximately
50 km/h when he struck the defendant’s car after it failed to stop at a red
light. Mr. Lennox’s car was pushed into oncoming traffic but was not hit by
other vehicles.

[11]        
Although Mr. Lennox’s car was equipped with head rests and he was
wearing a seat belt, his head and right hand struck the steering wheel as a
result of the collision. While driving he sat in a position close to the
steering wheel. His knee hit the dashboard, but apparently it was not painful
at the scene of the accident.

The Injuries

[12]        
Mr. Lennox did not notice any pain immediately after the collision and
could not remember precisely how he felt except to say that at the scene of the
accident he felt shaken up. He does not have a specific memory of that evening
but described tightening up and he believes he noticed headaches, soreness and
bruising. During the next day he recalls a gradual increase in lower back pain,
upper back pain, neck pain, headaches, pain in his right thumb and right knee.

[13]        
Several days after the accident Mr. Lennox went to a walk-in clinic in
Vancouver to obtain medication for his headache. He does not recall the medications
prescribed to him. He may have taken a few pills but did not take much of the
prescribed medication because he preferred a natural approach to healing. He returned
to work and did not seek any further treatment while in Vancouver.

[14]        
He worked 51 hours the week of August 18, 2003 and 51 hours the
following week. He said he was doing lighter work on those days.

[15]        
His family doctor in Toronto was Dr. Yanofsky. Mr. Lennox did not recall
when he first saw Dr. Yanofsky, but he recalled being sent to the Canadian Back
Institute (“CBI”) for a range of treatments including physiotherapy and massage
therapy, in addition to ultrasound treatments on his hand and right knee. He
did not go back to his family doctor during this six month period, but he
attended the CBI “pretty much” daily. He was doing home exercises and was improving.

[16]        
Mr. Lennox had a pre-accident history of taking chiropractic treatments
for preventative health reasons because of the heavy nature of his steady camera
work.

[17]        
In Toronto, Mr. Lennox exercised “religiously” and his back improved
slowly over several months. His back returned to its pre-accident state at
about six months after the accident. His neck took longer to improve. By late
January or early February 2004, both his neck and back were “okay” and were
fully resolved by the first anniversary of the accident. His headaches
persisted for the same time as his back discomfort.

[18]        
The hand/wrist problem he was experiencing did not interfere with his
work and resolved within nine months.

[19]        
The controversial part of Mr. Lennox’s claim is the injury to his knee. He
attributes the ongoing pain to the possibility of striking his knee on the dashboard.

[20]        
He could not remember when he was able to resume his film work after he
returned to Toronto after accident. He believed his knee was better by February
2004 but noticed that if he was carrying loads of up to 80 pounds he would
experience a worsening of his knee symptoms. His memory of the events in months
after the accident was poor.

[21]        
In September 2004, inexplicably Mr. Lennox’s knee swelled up. His doctor
prescribed oral antibiotics but when that did not solve the problem he was sent
to the hospital and placed on a walking intravenous system for six weeks. The
swelling subsided. He took further physiotherapy treatments and followed an
exercise program. He was advised at that time to have surgery to his knee but a
medical absence would have interfered with his work schedule. He chose not to
have the procedure.

[22]        
He was eventually diagnosed with a meniscal tear in his right knee in
March 2011. That month the plaintiff had arthroscopic surgery to repair the
tear. Since then, he continues to have swelling and discomfort in his knee when
he is carrying heavy loads.

Medical Evidence

[23]        
The most controversial aspect of this case is whether Mr. Lennox
suffered a torn medial meniscus as a result of the defendant’s negligence. This
injury is quite separate and apart from the soft tissue injuries clearly
suffered to his neck, upper and lower back, and thumb.

[24]        
Mr. Lennox obtained his initial medical advice from Dr. Wright at the
CarePoint Medical Centre in Vancouver on August 19, 2003. Mr. Lennox had
attended Dr. Wright to obtain some treatment for his headaches. Mr. Lennox had
a vague recollection of this meeting although he was confident he received a
prescription for medications.

[25]        
His film work in Vancouver was coming to an end in early September and
he returned to Toronto. His next medical visit in regard to the injuries from
the accident was with Dr. Yanofsky in Toronto on September 2. He saw Dr.
Yanofsky once in November and once in December 2003. The records indicate that
he continued to see Dr. Yanofsky intermittently throughout 2004.

[26]        
In October 2004, Mr. Lennox saw Dr. Weiler in reference to his knee
complaint. Mr. Lennox could not recall telling Dr. Weiler about the August 2003
accident or any injury to his knee at that time.

[27]        
He also saw Dr. Goldman in December 2005 but does not appear to have
mentioned the accident to him.

[28]        
Each of the parties tendered opinion evidence on the diagnosis and cause
of Mr. Lennox’s knee injury. Dr. Stewart (for the plaintiff) and Dr. Leith (for
the defendant) provided written opinions. Only Dr. Stewart was cross-examined.

[29]        
Dr. Stewart and Dr. Leith both reviewed Mr. Lennox’s clinical records
and relied on them in forming their opinions. These records and reports provide
the following medical history:

·                
In 2000, Mr. Lennox experienced low back pain of sufficient
severity that he could not walk. He had also had this type of pain in
1992-1993.

·                
In 2001, Mr. Lennox was involved in a rear end motor vehicle
accident and suffered whiplash injuries that resolved within several months. He
took some chiropractic treatments but did not miss any work.

·                
Mr. Lennox was injured on the job when he pulled down some
stairs. He twisted and threw out his back. He received short-term disability
benefits for approximately 6 months and after that time returned to full health.

·                
He injured his right knee when working out at a gym. He tore a
muscle in his leg and was referred to physiotherapy. That injury resolved in
about three months.

[30]        
Although Mr. Lennox reported having struck his right knee on the
dashboard, the medical records do not confirm this account and it is not until
September 2, 2003, that any knee pain is documented. He had no swelling or loss
of range of motion in his knee after the accident. The medical records indicate
that on October 17, 2003, his right knee was no longer a problem. This was confirmed
in February 6, 2004.

[31]        
Mr. Lennox made a claim to the Insurance Corporation of British Columbia
(“ICBC”) for Part VII benefits pursuant to the Insurance (Vehicle)
Regulation, B.C. Reg. 447/83. He signed a document on August 21, 2003, reporting
injuries and symptoms to his neck, shoulder and back, as well as whiplash under
the heading “Injury resulting from accident”. In a separate document prepared
by his lawyer for ICBC entitled “Report of Circumstances of Accident”, Mr.
Lennox wrote:

I sustained several injuries, including
an injury to my neck, shoulders, back, headaches, dizziness, whiplash, nausea
and ongoing symptoms.

[32]        
What is remarkable about these two statements is the absence of any
reference to a knee injury or of striking his knee on the dashboard.

[33]        
In the notes made by Dr. Wright, there is no indication of the plaintiff
claiming pain, discomfort or injury to his right knee.

[34]        
It was not until a meeting with Dr. Yanofsky on September 2, 2003 that
knee pain is noted. The records reference upper and lower back pain, neck stiffness,
write some injured – strain. There is no reference in the notes from the September
2 meeting regarding a knee injury.

[35]        
Mr. Lennox confirmed that on February 18, 2004, he had gone skiing with his
daughter. He said that to the best of his memory his knee was sore. During that
ski trip Mr. Lennox fell over to his right side and over his right knee. He
said it was not too comfortable but he did not re-injure himself.

[36]        
He said that he thought his knee was better by that time but if he
carried 80 pounds at work he noticed the knee would worsen.

[37]        
Mr. Lennox suffered a left knee injury after the accident and shortly
before his surgery in March 2011 when he fell on some ice and injured his
shoulder; he recovered completely.

Dr. Stewart’s Opinion

[38]        
Mr. Lennox relies on the opinion of Dr. Stewart to support his argument
that he suffered a meniscal tear as a result of his knee striking the dashboard
of his car at the time of the accident.

[39]        
Dr. Stewart prefaced her report with this comment:

Those facts, which I assume to
be true, are outlined in the Review of Records section of this report.

[40]        
It is significant that Dr. Stewart said the following under her review
of records:

According to a report of Dr. R. Rocha
of Toronto East General Hospital dated October 1, 2004, Mr. Lennox was referred
by Dr. Yanofsky for “right knee cellulitis? septic arthritis.”

[41]        
In that report relied upon by Dr. Stewart, Dr. Rocha said:

History of Presenting Illness:  Mr. Lennox presented to the
emergency department on September 20, 2004, with complaints of sudden onset of
pain, swelling and arrhythmia over his right knee.

…

He had no other signs of any
joint inflammation. There was no skin rash. Other than this he felt quite well
and his review of systems was non-contributory. There was no preceding history
of any trauma. He had no prior history of similar episodes of acute joint
inflammation.

[42]        
Dr. Stewart seems to have reached her opinion that the meniscal tear was
caused in the accident because:

·                
Mr. Lennox told her he had struck his right knee on the dashboard
on impact;

·                
He reported knee pain in the immediate aftermath of the motor
vehicle accident;

·                
He believed he had continued to have knee pain after the accident;

·                
His stoic nature led her to believe he might have ignored his
knee symptoms.

[43]        
In cross-examination, Dr. Stewart was asked to comment on the CBI
records which were referenced in her report and which indicated that Mr. Lennox
was seen at CBI on September 3, 2003. The entry reported that Mr. Lennox was
observed to have full and active range of motion of the right knee and was pain
free. Dr. Stewart did not address this issue in her report because, in the
absence of any other injury to the knee before or after the accident, she
believed that the accident was the most likely cause of the torn meniscus. She
could not explain how Mr. Lennox could have reported no pain at that time while
still having a torn meniscus. She speculated that he might have had pain and
just did not remember.

[44]        
Dr. Stewart said she did not review the MRI of Mr. Lennox’s knee and relied
upon Dr. Weiler’s description of the report as indicating a meniscal tear. She
did not ask for a copy of the report because she believed the preparation of
her opinion was an urgent matter and could not wait for receipt of the report.

[45]        
She said that the medical records she reviewed showed no other
reasonable evidence of the injury. This appeared to be a key element in her
conclusion that Mr. Lennox had suffered a meniscal tear in the August 2003 accident.

[46]        
Dr. Stewart did not describe the mechanism of a meniscal tear, nor did
she discuss any other potential causes including aging, overuse, twisting or
hyper flexing. She did not respond to Dr. Leith’s opinion that Mr. Lennox’s
pain did not occur in the area of the knee close to where symptoms from a
medial meniscus tear would usually occur. She did not comment on Dr. Leith’s
opinion that a direct blow to the anterior knee is inconsistent with the
establishment of a meniscus tear.

[47]        
Dr. Stewart did not agree with Dr. Leith that age could have been a
factor because Mr. Lennox is only 44 years of age. However, defence counsel
produced an article indicating that meniscal tears increase with age and are
more common in people over 40. Dr. Stewart was asked if developmental
degeneration in the knee, including chondromalacia or arthritis can reasonably
cause knee pain. The foundation of Dr. Stewart’s opinion regarding causation was
the fact that Mr. Lennox did not complain of knee pain before the accident, he hit
his knee on the dashboard and he subsequently had knee pain.

[48]        
She eventually conceded that non-traumatic degeneration could also cause
meniscal tears, but insisted that these possibilities did not alter her opinion
that the contusion to his knee in the accident caused the tear.

Dr. Leith’s Opinion

[49]        
The defendant obtained a medical legal report from Dr. Leith which was
served on the plaintiff pursuant to Rule11-6(4) of the Supreme Court Civil
Rules. The Leith report contains a critique of Dr. Stewart’s report and a
contrary opinion.

[50]        
At page 2, the report reads:

It is my opinion that based on
the review records provided that, from an Orthopedic perspective, Mr. Lennox
did not sustain a medial meniscal tear to his right knee as a result of the
subject accident.

[51]        
Dr. Stewart supported his reasoning, explaining:

1.         Dr. Stewart has failed to acknowledge that Mr.
Lennox did not present initially with acute right knee pain that would be
consistent with a medial meniscus tear. He did present with delayed onset of
right knee symptoms that were located anteriorly over the knee cap. The
location of the pain is not at all close to where the symptoms from a medial
meniscus tear would occur. Therefore, based on the principle of anatomic
location and correlation of symptoms it is impossible that a meniscus tear
occurred at the time of the accident.

2.         The clinical presentation of Mr. Lennox following
the accident was not consistent with an acute injury such as a medial meniscus
tear. There was no immediate pain, swelling or mechanical symptoms noted. His
presentation to Medical Practitioners was benign in nature with only minor
anterior knee pain and a normal physical examination.

3.         The records do not indicate that there was any
history of Mr. Lennox’s right knee striking the dash on impact but this is the
history that Mr. Lennox provided to Dr. Stewart. This mechanism of a direct
anterior blow to the knee would result in a contusion to the anterior knee,
which is the location of the pain that was documented in the records following
the subject accident on numerous occasions. Again, clearly not a medial
meniscus tears clinical presentation.

4.         A direct blow to the anterior knee is not
consistent with the establishment of a meniscus tear. Meniscus tears usually
occur when the knee is under load and a torsional force is applied such as when
standing and pivoting on a planted foot or when deep knee bending or twisting. It
is relevant to note that meniscus tears reported on MRI as complex are most
often seen in patients over age 40 and are classified as a degenerative type
tears rather than traumatic tears which are more often seen in the younger
population.

5.         It must also be noted that an MRI cannot and does
not determine when the pathology reported on that MRI actually occurred. An MRI
is only a representative image of the state of the anatomy at the time that the
MRI was obtained. To determine when pathology might have occurred it is more
important to correlate the MRI findings with the history of a traumatic event
and clinical presentation of the individual following the traumatic event along
with the mechanism of that trauma. It is clear the clinical presentation and
mechanism of the subject accident were not consistent with an acute meniscus
tear to the right knee.

…

In summary, Mr. Lennox did not suffer a medial meniscus tear
as a result of the subject accident for all the reasons outlined. If one
considers the clinical context of his presentation following the subject
accident, it is clear that he only suffered some minor anterior knee pain that
would be consistent with a mild contusion or soft tissue irritation. This would
be expected to resolve rather rapidly over a period of a few weeks. The clinical
records would support this expected outcome as there was an absence of knee
complaints shortly after the subject accident.

What has occurred is that Mr. Lennox suffered an independent
problem to the right knee well after the accident that was diagnosed as
superficial skin infection. This recovered but due to investigations and
incidental findings on an MRI, a link to those findings to the accident was
made without clinical correlation.

It remains that Mr. Lennox did
not suffer any internal derangement such as a meniscus tear to the right knee
as a result of the subject accident.

[52]        
Dr. Leith was not cross-examined on his opinion.

Position of the Parties

Plaintiff

[53]        
The plaintiff says the auto accident caused the meniscus tear in his
right knee. He argues that when the collision occurred he was sitting close to
the steering wheel and recalls hitting his knee on the dashboard. He says his neck
and back pain were palpable in the days after the accident. He claims he first
reported the knee pain to his family doctor in Toronto on September 2, 2003. He
also argues that he reported knee pain to the CBI in September 2003.

[54]        
He says the pain continued in the fall of 2003 and 2004, despite the
fact that his predominant concerns were neck and back pain. He argues that he
had an immediate sensation in his right knee at the scene of the accident and
continued to have issues with his knee afterwards.

[55]        
Mr. Lennox argues that Dr. Stewart’s opinion regarding the causation of
his meniscus tear was based on the medical records and their interview which
established knee pain in the period immediately following the accident. Mr.
Lennox claims he had no knee pain prior to the accident and that any prior
issues had resolved.

[56]        
The plaintiff relies on Bradhsaw v. Matwick, 2011 BCCA 111 for
the proposition that the absence of evidence of knee pain in the clinical
records shortly after the accident does not undermine the physiatrist’s opinion
that the plaintiff had suffered a meniscal tear.

[57]        
Mr. Lennox argues that he did not recall the events referred to in the
clinical records on which he was cross-examined. He argues that use of the
clinical records should be restricted and inadmissible for the purpose of
proving he did not strike his knee at the time of the collision or that he did
not have knee pain after the accident. Mr. Lennox relies extensively on Edmondson
v. Payer, 2011 BCSC 118, (affirmed on other grounds in 2012 BCCA 114) where
N. Smith J. stated:

[36]      While the content of a
clinical record may be evidence for some purposes, the absence of a record is
not, in itself, evidence of anything. For example, the absence of reference to
a symptom in a doctor’s notes of a particular visit cannot be the sole basis
for any inference about the existence or non-existence of that symptom. At most,
it indicates only that it was not the focus of discussion on that occasion.

The Defendant’s Position

[58]        
The defendant argues Mr. Lennox has failed to prove on a balance of
probabilities that his meniscus tear was caused by the accident. The defendant
asserts I should accept Dr. Leith’s opinion in preference to Dr. Stewart’s. He argues
that Dr. Leith is an orthopedic surgeon whose specialty is more focused on knee
reconstructions and arthroscopic surgery. By comparison, Dr. Stewart appears to
have professional experience related to brain injury patients and does not have
a particular expertise in the field of knee injuries.

[59]        
The defendant contends Dr. Leith’s opinion is more consistent with the
preponderance of evidence collected in the records relied upon by Dr. Stewart.
The defendant also argues that Dr. Stewart appeared defensive and lacked
objectivity in her uncritical reliance on the plaintiff’s assertions in the
face of other information available from treating physicians.

[60]        
The defendant says that meniscal tears are usually associated with
bloated torsional forces applied when a person is standing and pivoting. He
argues that the location of Mr. Lennox’s knee pain is inconsistent with
evidence of a meniscal tear having occurred at the time of the accident. There
was no evidence that Mr. Lennox reported knee pain to his physicians until more
than two weeks after the accident, as well as no evidence of swelling. The
defendant notes Mr. Lennox had a full range of motion early in September 2003.

Analysis

Clinical Records

[61]        
It is necessary to determine which clinical records are admissible, and
for what purpose they may be used in determining the issue of causation of Mr.
Lennox’s meniscus injury.

[62]        
Defence counsel tendered a series of clinical records relating to the
plaintiff’s interactions with treating physicians and therapists. The records
went into evidence without objection, presumably because these records were
relied on by Dr. Stewart and Dr. Leith in forming their opinions.

[63]        
Mr. Lennox could not remember if he told Dr. Wright about knee pain or
hitting his knee on the dash. He could not recall any of the specifics of their
meeting.

[64]        
Mr. Lennox could not recall his discussion with Dr. Weiler or the statements
attributed to him at the time of his consultation on October 7, 2004, or May 27,
2005. Mr. Lennox did not remember his meeting with Dr. Goldman on December 27,
2005, nor did he recall specifics of his meeting at the CBI that were fifth
2004.

[65]        
Mr. Lennox did not remember his interview with Dr. Yanofsky on January
5, 2004, or his application for insurance made on January 14, 2004. He did not
remember making an insurance claim with the Dominion of Canada insurance
company relating to the auto accident injuries. He could not remember a meeting
with his doctor on January 19, 2004, where emotional issues relating to his
matrimonial litigation were discussed. He could not remember a conversation
recorded in the notes in January 2004 when he complained of back pain but no
pain in his knee. Counsel for the plaintiff candidly acknowledged that Mr.
Lennox’s memory of his physical condition and circumstances after the accident
was limited by the passage of almost nine years since the accident.

[66]        
Dr. Stewart’s opinion is based, in part on her review of clinical
records from various treating physicians. It was obviously necessary for her to
rely on these documents to obtain a thorough history of Mr. Lennox’s condition
due, in part, to his poor memory of details concerning the immediate aftermath
of the accident. The absence of clinical records related to the investigation
and diagnosis of his knee injury would have impaired Dr. Stewart’s ability to
assess the plaintiff.

[67]        
It is important to recognize the struggles physicians have in opining on
injuries that have occurred many years before being examined by an expert (in
this case eight years prior). In this case, there are a series of clinical
records relating to the plaintiff’s interactions with treating physicians and
therapists over many years.

[68]        
The admitted flaws in a party’s memory are serious barriers to
discerning the reliability of a diagnosis. In Mazur v. Lucas, 2010 BCCA
473 the Court of Appeal addressed this issue. The Court of Appeal,
quoting the Supreme Court in R. v. Lavallee, [1990] 1 S.C.R. 852, noted
at paras. 36 and 40:

[36]      To resolve the contradiction, he drew a practical
distinction between evidence that an expert obtains and acts upon within the
scope of his or her expertise and evidence that an expert obtains from a party
to litigation touching a matter directly in issue (at 899-900):

In the former instance, an expert
arrives at an opinion on the basis of forms of enquiry and practice that are
accepted means of decision within that expertise. A physician, for example,
daily determines questions of immense importance on the basis of the
observations of colleagues, often in the form of second- or third-hand hearsay.
For a court to accord no weight to, or to exclude, this sort of professional
judgment, arrived at in accordance with sound medical practices, would be to
ignore the strong circumstantial guarantees of trustworthiness that surround
it, and would be, in my view, contrary to the approach this Court has taken to
the analysis of hearsay evidence in general, exemplified in Ares v. Venner,
1970 CanLII 5 (SCC), [1970] S.C.R. 608. In R. v. Jordan (1984), 39 C.R.
(3d) 50 (B.C.C.A.), a case concerning an expert’s evaluation of the chemical
composition of an alleged heroin specimen, Anderson J.A. held, and I
respectfully agree, that Abbey does not apply in such circumstances. (See also R.
v. Zundel ,
1987 CanLII 121 (ON CA), (1987), 56 C.R. (3d) 1 (Ont. C.A.), at p. 52, where
the court recognized an expert opinion based upon evidence “… of a general
nature which is widely used and acknowledged as reliable by experts in that
field.”)

Where, however, the information
upon which an expert forms his or her opinion comes from the mouth of a party
to the litigation, or from any other source that is inherently suspect, a court
ought to require independent proof of that information. The lack of such proof
will, consistent with Abbey, have a direct effect on the weight to be
given to the opinion, perhaps to the vanishing point. But it must be recognized
that it will only be very rarely that an expert’s opinion is entirely based
upon such information, with no independent proof of any of it. Where an
expert’s opinion is based in part upon suspect information and in part upon
either admitted facts or facts sought to be proved, the matter is purely one of
weight.

…

[40]      From these authorities, I would summarize the law
on this question as to the admissibility of expert reports containing hearsay
evidence as follows:

·       
An expert witness may rely on a variety of sources and resources
in opining on the question posed to him.  These may include his own
intellectual resources, observations or tests, as well as his review of other
experts’ observations and opinions, research and treatises, information from
others – this list is not exhaustive.  (See Bryant, The Law of Evidence
in Canada, at 834-835)

·       
An expert may rely on hearsay.  One common example in a
personal injury context would be the observations of a radiologist contained in
an x-ray report.  Another physician may consider it unnecessary to view
the actual x-ray himself, preferring to rely on the radiologist’s report.

·       
The weight the trier of fact ultimately places on the opinion
of the expert may depend on the degree to which the underlying assumptions have
been proven by other admissible evidence.  The weight of the expert
opinion may also depend on the reliability of the hearsay, where that hearsay
is not proven by other admissible evidence.  Where the hearsay evidence
(such as the opinion of other physicians) is an accepted means of decision
making within that expert’s expertise, the hearsay may have greater
reliability.

·       
The correct judicial response to the question of the
admissibility of hearsay evidence in an expert opinion is not to withdraw the
evidence from the trier of fact unless, of course, there are some other factors
at play such that it will be prejudicial to one party, but rather to address
the weight of the opinion and the reliability of the hearsay in an appropriate
self-instruction or instruction to a jury.

[Emphasis
added.]

[69]        
In creating her report, Dr. Stewart considered the clinical records of
Toronto East General Hospital, medical reports in clinical records of Drs.
Wright, Yanofsky, Weiler. She also had clinical records from Drs. Wyman and Goldman,
reports and records of CBI, records of Toronto East Physiotherapy and Sports
Injury Clinic, records of Beaches Chiropractic, and records of a podiatrist Dr.
Collis. Finally, she had the history she obtained from Mr. Lennox.

[70]        
Mr. Lennox could recall very little of the information attributed to him
by his treating physicians. Nonetheless, those comments appear to be important
factors considered in both Dr. Leith’s and Dr. Stewart’s opinions.

[71]        
The salient parts of the clinical records considered by Dr. Leith
include:

·                
Mr. Lennox’s initial presentation was of delayed onset of right
knee symptoms located anteriorly over the knee cap;

·                
Mr. Lennox’s clinical presentation was not consistent with an
acute injury such as a medial meniscus tear;

·                
There was no immediate pain, swelling or mechanical symptoms in
Mr. Lennox’s right knee;

·                
The records did not indicate there was a history of Mr. Lennox’s
right knee striking the dash on impact. But a direct anterior blow to the knee
would result in contusion to the anterior knee, which is the location of the
pain that was documented in records following the subject accident on numerous
occasions. Such an impact would provide a mechanism of injury.

[72]        
The records reviewed by Dr. Stewart revealed the following:

·                
Following the accident Mr. Lennox complained to Dr. Yanofsky of
stiffness in his neck, pain in his upper and lower back and in his right thumb
and right knee;

·                
He had appropriate rehabilitation for his injuries and reported
to the physiotherapist at CBI that his right knee pain was no longer a problem
early as October 2003;

·                
The swelling in his right knee in 2004 was attributed to
inflammation in the pre-patellar bursa or cellulitis, and a skin infection;

·                
He was treated with intravenous antibiotics and the swelling
gradually subsided;

·                
Mr. Lennox’s orthopedic surgeon, Dr. Weiler, noted that when he
saw Mr. Lennox in April 2005 he was still experiencing pain in the knee when
performing deep knee bends and was unable to kneel on his right knee;

·                
Dr. Weiler was uncertain about the diagnosis and Mr. Lennox had
not mentioned the injury to his knee in the motor vehicle accident;

·                
The picture was further clouded by a bone scan result which
suggested yet another diagnosis, that of osteochondritis dissecans;

·                
The MRI scan of the knee on May 7, 2005 showed a complex tear of
the medial meniscus.

[73]        
It is obvious that both Dr. Stewart and Dr. Leith relied on the records
as contemporaneous and accurate reflections of circumstances surrounding Mr.
Lennox’s injury assessment and treatment. It was essential for the two doctors
rely on those records, in part, to ground their opinions because Mr. Lennox’s
memory was not reliable. At trial, Mr. Lennox did not testify on his post
accident condition with any degree of clarity or certainty. He could not confirm
or deny many of the statements attributed to him in the clinical records. I
accept the clinical records mentioned by the experts were relevant and
necessary in forming their opinions.

[74]        
Some of the records reflected the views and opinions of treating physicians.
In preparing her opinion, Dr. Stewart accepted the truth of what was
communicated in those records in coming to the opinion that the MRI report
established Mr. Lennox suffered from a meniscal tear. She did not independently
verify that this was the correct diagnosis.

[75]        
To the extent that these records were relied upon by Dr. Leith and Dr.
Stewart, they are admissible as the basis of their assumptions made in forming
their opinions. As N. Smith J. said in Edmondson at para. 39:

[39]      Clinical records may
provide the assumed facts on which an expert may offer an opinion, including
diagnosis. For example, statements made by the plaintiff and recorded in
clinical records at various times may be relied on by a defence expert in
concluding that the plaintiff’s current symptoms are the result of a condition
that pre-dated the accident. That does not mean that the court can itself use
clinical records to arrive at a medical diagnosis in the absence of expert
opinion.

[76]        
I am aware of the risk that the absence of a reference to a symptom in a
doctor’s notes cannot be the sole basis for any inference about the existence
or non-existence of that symptom.

[77]        
In the circumstances of this case, there is no independent evidence that
Mr. Lennox struck his knee in the accident; although he developed some knee
pain by September 2. There is no mention of a blow to the knee in the clinical
records nor in his statements to the doctors. He spoke to his doctor about knee
for the first time in early September. When first presenting to the hospital in
Toronto, and subsequently to Dr. Rocha, Mr. Lennox appears to have denied that
his knee struck the dashboard.

[78]        
The statements made by Mr. Lennox to ICBC through his lawyer support the
inference from the doctor’s notes from late August and early September that Mr.
Lennox was not experiencing knee pain and that the blow to his knee had not
been severe enough to cause significant symptoms.

[79]        
The defendant tendered a medical report dated April 29, 2008, from Dr.
Yanofsky to plaintiff’s counsel. In that report he described Mr. Lennox’s
condition as follows:

He suffered low back, neck and upper back and write some
injuries.

He was seen at our office by myself on September 2, 2003 with
the above complaints. On examination of his C-spine range of motion was normal.
L-spine range of motion was normal. He was tender para vertebral thoracic spine
and lumbar spine with para vertebral muscle spasm. Straight leg raising was
normal. Reflexes were normal as was Babinski reflex with toes down going. Power
of legs was normal. Right thumb  ROM was normal; no swelling but tender MCP
joint was evident. Right knee had normal ROM and no effusion but mild tender
anterior patella

Mr. Lennox was diagnosed with
lumbar and cervical strains, right knee strain and right 1st finger sprain. He
was prescribed physiotherapy at the Canadian Back Institute as well as
Robaxacet.

[80]        
Mr. Lennox saw Dr. Yanofsky in November 2003 through January 2004 for ongoing
neck and lower back pain with headaches. There was no mention of knee pain
after September 2, 2003.

[81]        
The defendant also relied on the opinion of Dr. Weiler contained in a
report dated December 5, 2008. Among several comments relating to Mr. Lennox’s
condition, Dr. Weiler said this in response to questions posed by the
plaintiff’s counsel:

6.Your opinion as to whether or not the accident was a
material and contributing cause to Mr. Lennox’s current and on-going symptoms.

Although I have seen and
reviewed. Mr. Lennox on 3 separate occasions(twice in 2004 and once in 2005) at
no time did he mention that he had been involved in a motor vehicle accident on
August 16, 2003. I therefore have no documentation regarding the details of the
accident in question. As a result, I am unable to provide an opinion regarding
whether or not the accident was a material and contributing cause to Mr. Lennox
current and ongoing symptoms.

[82]        
The clinical records relating to Mr. Lennox’s treatment from August 2003
to October 2004 are important to the analysis of the diagnosis and cause of his
ongoing knee complaints. Almost eight years passed between the accident and the
plaintiff’s meeting with Dr. Stewart. The same time gap seems to have eroded
his memory at trial. I consider the medical reports of Drs. Stewart and Leith
based on those records in order to test those opinions regarding the cause of Mr.
Lennox’s torn meniscus.

Causation

[83]        
The test for causation was described by Major J. in Athey v. Leonati,
[1996] 3 S.C.R. 458:

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: Snell v. Farrell, 1990 CanLII 70
(SCC), [1990] 2 S.C.R. 311; McGhee v. National Coal Board, [1972] 3 All
E.R. 1008 (H.L.).

14.       The general, but not conclusive, test for causation
is the "but for" test, which requires the plaintiff to show that the
injury would not have occurred but for the negligence of the defendant: Horsley
v. MacLaren, 1971 CanLII 24 (SCC), [1972] S.C.R. 441.

15.       The "but for" test is unworkable in some
circumstances, so the courts have recognized that causation is established
where the defendant’s negligence "materially contributed" to the
occurrence of the injury: Myers v. Peel County Board of Education; 1981
CanLII 27 (SCC), [1981] 2 S.C.R. 21, Bonnington Castings, Ltd. v. Wardlaw,
[1956] 1 All E.R. 615 (H.L.); McGhee v. National Coal Board, supra. A
contributing factor is material if it falls outside the de minimis
range: Bonnington Castings, Ltd. v. Wardlaw, supra; see also R. v.
Pinske 1988 CanLII 3118 (BC CA), (1988), 30 B.C.L.R. (2d) 114 (B.C.C.A.),
aff’d 1989 CanLII 47 (SCC), [1989] 2 S.C.R. 979.

16.       In Snell v.
Farrell, supra, this Court recently confirmed that the plaintiff must prove
that the defendant’s tortious conduct caused or contributed to the plaintiff’s
injury. The causation test is not to be applied too rigidly. Causation need not
be determined by scientific precision; as Lord Salmon stated in Alphacell
Ltd. v. Woodward, [1972] 2 All E.R. 475, at p. 490, and as was quoted by
Sopinka J. at p. 328, it is "essentially a practical question of fact
which can best be answered by ordinary common sense". Although the burden of
proof remains with the plaintiff, in some circumstances an inference of
causation may be drawn from the evidence without positive scientific proof.

[84]        
McLachlin C.J.C. noted in Resurfice Corp. v. Hanke, 2007
SCC 7:

23.       The “but for” test
recognizes that compensation for negligent conduct should only be made where a
substantial connection between the injury and the defendant’s conduct is
present. It ensures that a defendant will not be held liable for the
plaintiff’s injuries when they “may very well be due to factors unconnected to
the defendant and not the fault of anyone”: Snell v. Farrell at p. 327 per
Sopinka J.

[85]        
I have concluded that the Dr. Leith’s opinion on the issue of Mr.
Lennox’s torn meniscus is to be preferred. I am not persuaded by Dr. Stewart’s
opinion, in part because, I am not satisfied that the information upon which
her opinion was based is consistent with her analysis.

[86]        
Dr. Stewart did not explain how Mr. Lennox could have sustained a
meniscal tear without reporting knee pain to his physicians for more than two
weeks. Further, she could not explain how his right knee would not have been
problematic after October 2003 or February 2004 but become symptomatic later in
2004 and 2005 due to a meniscus tear in August 2003. She did not discuss any implications
of the September 2004 event when his knee spontaneously became swollen and
disabling and was which was treated with antibiotics.

[87]        
Mr. Lennox did not recall telling any of his treating physicians about
striking his knee in the accident; the first record of his suggestion that he
struck his knee was to Dr. Stewart in 2012. I accept that there was evidence of
knee pain after Mr. Lennox returned to Toronto, but those symptoms seem to have
resolved by October 2003.

[88]        
In cross-examination Dr. Stewart acknowledged non-traumatic degeneration
could also cause a meniscal tear. However, in her analysis she did not appear
to have considered non-traumatic origins notwithstanding the absence of
evidence that Mr. Lennox had knee pain during the first two weeks after the
accident and indeed over several months after October 2003.

[89]        
Dr. Stewart’s opinion rejecting the possibility of a non-traumatic cause
of Mr. Lennox’s meniscal tear essentially rested on the proposition that since
he did not have knee symptoms before the accident, but developed symptoms after
the accident, the accident must have been the cause. This is the issue raised
by Ehrcke J. in White v. Stonestreet, 2006
BCSC 801, when he discussed the possible shortcomings in drawing an inference
from a temporal connection: Ehrcke. J said:

[74]      The inference from a temporal sequence to a causal
connection, however, is not always reliable. In fact, this form of reasoning so
often results in false conclusions that logicians have given it a Latin name. It
is sometimes referred to as the fallacy of post hoc ergo propter hoc: “after
this therefore because of this.”

[75]      In searching for
causes, a temporal connection is sometimes the only thing to go on. But if a
mere temporal connection is going to form the basis for a conclusion about the
cause of an event, then it is important to examine that temporal connection
carefully. Just how close are the events in time? Were there other events
happening around the same time, or even closer in time, that would provide an
alternate, and more accurate, explanation of the true cause?

[90]        
It is my view that Dr. Stewart’s analysis suffered from the error
highlighted in White. She said that the torn meniscus must have been
caused by the accident because Mr. Lennox had knee pain after the accident and
he did not report any other event that might have explained the injury.

[91]        
Dr. Stewart did not contradict Dr. Leith’s opinion that the absence of
acute knee pain was inconsistent with the medial meniscus tear. Further, she
did not address Dr. Leith’s opinion that:

[t]he location of the pain is
not at all close to where the symptoms from a medial meniscus tear would occur.
Therefore, based on the principle of anatomic location and correlation’s to
symptoms it is impossible that a meniscus tear occurred at the time of the
subject accident.

[92]        
Based on a comprehensive assessment of the two opinions, I prefer and accept
Dr. Leith’s opinion that Mr. Lennox’s torn meniscus was not likely caused by
any injury he sustained in the accident. I have concluded Mr. Lennox’s torn
meniscus was not caused by the same forces that resulted in the pain in his
right knee pain for several months after the accident.

[93]        
Mr. Lennox has not established, on a balance of probabilities that the
defendant’s negligence caused or materially contributed to his torn meniscus. I
am not satisfied on the evidence there is a causal connection between his torn
meniscus and the accident. It has not been proven that but-for the accident Mr.
Lennox would not have developed the same symptoms: see Kelly v. Yuen,
2010 BCSC 1794 at para.121; Athey at paras. 13-17.

Compensable Injuries

[94]        
I accept that Mr. Lennox suffered an exacerbation of a pre-existing lower
back condition that was historically related to his work. I conclude that Mr.
Lennox suffered a bruised right knee and injuries to his neck, back, and right
thumb and wrist. He experienced headaches associated with this accident.

[95]        
He reported substantial improvement within six months and complete resolution
of all but his knee symptoms within one year of the accident.

[96]        
The plaintiff did not give any evidence in support of Dr. Stewart’s
suggestion that he suffered from some depression after the accident due to his
injuries. In the absence of evidence on that point, I cannot consider Mr.
Lennox as suffering depression caused by the defendant. Further, Dr. Stewart’s
opinion was that the depression was related to the limitations imposed by the
injuries caused by the accident. It seems to me that the most probable of those
limitations might have been the difficulty with his knee. As I have concluded
that the torn meniscus was not caused by the accident, I do not accept that the
plaintiff’s psychological problems stem from the defendant’s negligence.

Assessment of Damages

Impaired Earning Capacity/Employment and Finances

[97]        
At the time of the accident, Mr. Lennox was working as a camera operator
on a film project in Vancouver. Although his residence is in Toronto, he had
been working in BC from the late spring through to the summer of 2003.

[98]        
Mr. Lennox is a member of Local 667 of the International Alliance of
Theatrical Stage Employees (“IATSE”), a union that contracts with movie studios
and producers on members’ behalf. His union membership allows him to work
anywhere in Canada and enables him to accept union work in Vancouver.

[99]        
Mr. Lennox also has access to non-union work which accounts for
approximately 30% of his work opportunities. The union does not provide
guaranteed work but offers other benefits and income protection.

[100]     Mr. Lennox
earned most of his film industry income through two incorporated companies. He
owns the shares in 1539600 Ontario Inc. (“Ontario Inc.”) and Rampant Lion
Productions Inc. (“Rampant Lion”). His personal income is paid to him by these
companies.

[101]     Mr. Lennox
completed a two-year apprenticeship as a painter decorator. In 2001 – 2002 he created
Strokes Painting Inc. (“Strokes Painting”). In 2003, Mr. Lennox continued
operating Strokes Painting although there was no evidence of the amount of time
he dedicated to painting work as opposed to film work. He did not always keep
his film revenues separate from his painting revenues.

[102]     During the
winter of 2003 – 2004, Mr. Lennox’s painting work increased significantly. His
common law spouse’s father held a position that allowed him to direct work to
Mr. Lennox’s painting business. Strokes Painting’s revenue exceeded $250,000
during 2004. Mr. Lennox stopped actively painting in 2005 but managed the business
until it was closed. He stopped the business because he felt he could not make
money unless he was personally “on the brush” painting and he was not able to
do the physical labour for Strokes Painting due to his injuries.

[103]     After his
relationship with Ms. Vassilio failed, he was no longer considered for work
controlled by her father. In any event, film work was Mr. Lennox’s preference.

[104]     Mr. Lennox
did not produce the bulk of income tax returns relevant to his income loss claim.
He said there was some delay in preparing and filing his returns from 2002 – 2006.
He said these returns had been filed; he did not provide a reasonable
explanation as to why these returns and supporting documents had not been
produced in this litigation.

[105]     The
financial documents provided included:

·                
Bank statements in the name of 1539600 Ontario Inc.;

·                
His TD Bank records;

·                
His T-1 general income tax return for 2004;

·                
A summary of invoices and deposits for Strokes Painting from January
2004 – December 2004;

·                
Invoices for Strokes Painting January 2004 – December 2004;

·                
A tax return relating to Strokes Painting for 2004;

·                
A financial statement for Strokes Painting for 2004 – 2005;

·                
A trial balance for Strokes Painting for 2004;

·                
Bank records for Strokes Painting for 2004; and,

·                
A general ledger for Strokes Painting for 2004.

[106]     Mr. Lennox
said that a number of his financial records had been taken by Ms. Vassilio.

[107]     His 2004
personal income tax return revealed commission income and other income amounting
to $12,360.

[108]     Strokes
Painting showed a gross income for 2004 of $269,480. Although financial
statements prepared for Strokes Painting revealed gross revenue in 2000 of $485,397
and in 2005 $123,813, the net profit in each of those two years was $12,784 and
$4,090 respectively.

[109]     Rampant
Lion financial statements for 1994 – 2000 were entered into evidence by the
defendant. Those statements reveal a pattern of variable gross earnings from as
low as $26,301 in 1996 and as high as $109,835 in 2000. In every year except
1998 Rampant Lion experienced negative profit after accounting for expenses. In
each year there was a management expense of $1,500 – $36,000. Mr. Lennox did
not provide any financial statements for Rampant Lion beyond 2000. He did
provide a schedule of IATSE work for April 2002 until October 2003, suggesting
that his average gross weekly pay during that time was between $4,600 and $6,500.

[110]     He was
unable to estimate the portion of his income that derived from non-IATSE work.

[111]     The absence
of financial statements for Rampant Lion and Ontario Inc. from 2002 – 2004 severely
hampered a fair assessment of his pecuniary losses stemming from the accident.
I could not discern from the evidence what his net income was in the period
before and after the accident.

[112]     Mr. Lennox
could not recall turning down any work during the period August 2003 to February
2004. He was engaged for a one day film project in October 2003 and “might have
done some light duties” but his records were incomplete and he could not confirm
precisely what work he did after returning to Toronto. He did not look for work
until February 2004; he said he could not hang the 80 pound camera around his
neck.

[113]     I observed
from the 2000 Rampant Lion statement that the company’s expenses (excluding
management fees) are in the order of 66% of total revenue. He indicated
expenses were variable but could include steady camera rental costs, food and
lodging, and other equipment needs.

[114]     Mr. Lennox
was cross-examined on terms of a settlement agreement reached with Ms. Williamson
regarding the shared custody and care of their children. That agreement provided
that the children would be in the care of each parent on a week-on week-off
pattern. I accept that Mr. Lennox had pressing parenting reasons to return and
remain in the Toronto area after September 2003. Although there was evidence
that film work was available in Vancouver in 2003 and 2004, I was not satisfied
on balance that he would have pursued those opportunities due to home based
demands on him.

[115]     He was
also cross-examined on an affidavit sworn April 11, 2006, in family law
proceedings in Ontario. In the affidavit. He said:

I am self-employed as a steady
cam operator in the film industry. This is seasonal employment. I have
previously supplemented my income through a painting business, Strokes, and I
have carried on during the winter months.

[116]     He added
that due to the nature of the employment, he did not receive a steady paycheck but
got paid when he worked. However, there are large periods of time when he did
not work. He estimated his total net income for 2005 was approximately $30,000.
He also said “due to the unpredictability of the film industry, I am attempting
to maximize my income by running my own painting business”. Due to the long hiatus
between the date of the accident and the swearing of this affidavit, I do not
attach much significance to the circumstances described by the plaintiff
insofar as those circumstances may well have changed dramatically after he
returned to work in 2004.

[117]     Mr. Lennox
testified that he did not attempt to under report income for the years prior to
the accident.

[118]     The plaintiff
advances a claim asked for $60,000 to compensate him for his past loss of
earning capacity. This claim is founded on the proposition that Mr. Lennox’s
income was reduced for 16 weeks. During which time he would have earned $5,700
per week. Without knowing Mr. Lennox’s tax rate was for 2011, he suggests that
there be a 25% deduction from that amount, and that the gross loss becomes
$68,400. He argues that this amount should be reduced by a further 5% – 15% to
achieve an outcome equal to his net loss of income from this accident.

[119]     The
plaintiff argues that past loss of income is properly characterized as lost past
earning capacity. The overriding principle is that a monetary award is intended
to put the plaintiff into the position he would have been but-for the
defendant’s negligence.

[120]     The
assessment of the plaintiff’s claim in this case is severely handicapped by the
absence of properly prepared financial statements of Mr. Lennox’s income
between 2000 and 2003, and from 2003 until 2004.

[121]     The
plaintiff has the burden of proof to establish damage to his income earning
capacity on a balance of probabilities.

[122]     The
plaintiff submits that from April 16, 2002 to August 30, 2003, he worked a
total of 40 weeks. He argues the IATSE records do not record all of his steady
camera work income and he has been unable to obtain his non-union records.

[123]     Ms. Kaspercyzck
and Mr. Williamson testified that the film industry in BC was busy in 2003 and
to a lesser extent busy in 2004.

[124]     Mr. Lennox
said that the painting business only made money when he was “on the brush” and
that the painting work was too physical for him after September 2003. He
alluded to the injuries limiting his ability to paint but I was not convinced
as to the extent of that limitation.

[125]     In my
view, Mr. Lennox’s evidence regarding his wage loss was not proven on a balance
of probabilities.  Given that Mr. Lennox was returning to Toronto shortly after
the accident and he was responsible for the care of his children, it is my view
that he was unlikely to have returned to BC for work in the immediate period
after the accident.

[126]     I am not
satisfied that the evidence establishes that Mr. Lennox was unable to work or
unable to work full-time in film or in painting. I am not satisfied that the
painting business did not earn income as a result of his physical limitations
caused by the accident. I was not satisfied that he has established that he
could not perform some labour or attend to the management of the company’s
affairs after he returned to Toronto and during the subsequent 22 weeks. The
evidence was so flawed as to give me little assistance in assessing his claim.

[127]     I observed
from the financial statements that Mr. Lennox’s net income from the film
business was in the order of 34% of gross revenues. I assume for example that
when he is in BC his costs of living are dramatically higher than they would be
if he was living in his home in Toronto. He did not explain the differences
between gross income and net income and the only evidence that I have is that
the expenses of his film business are significant.

[128]     I accept
that Mr. Lennox was likely prevented from working at full capacity in the six
months after the accident. He was attending physiotherapy and massage therapy
on regular basis and that treatment would likely have interfered with his ability
to work. Further, I recognize that both painting and film are physically
demanding jobs and Mr. Lennox was likely limited in what he could do.

[129]     I accept
that he had earned something in the order of $5,700 per week in the prior 16
months before the accident and earned some income from his painting business.
However, his estimates of his camera work income is of less value in my
assessment without some reliable evidence of the business’ expenses. Further he
did not clearly address the business opportunities he might have lost due to
the injuries that interfered with his activities in the first six months after
the accident.

[130]     His film business
appears to have extraordinarily large operating expenses. He provided no
reliable explanation as to the real income that accrued to him from his film
work. He performed management duties in his painting business after the
accident. He might have done some painting during his period of disability. In the
final analysis, I do not know, with any confidence, the extent that his income
earning ability was impaired.

[131]     There is a
dearth of reliable information to assist me in assessing this claim. Doing the
best I can with the evidence available, I have concluded that Mr. Lennox’s
ability to earn income was impaired for six months after he returned to
Toronto. I assess the impairment to his earning capacity during the six months
after the accident at $10,000.

Non-Pecuniary Damages

[132]     Non-pecuniary
damages are assessed on the basis of the impact injuries have on a victim’s
life. This Court is guided by the criteria established in Stapley v.
Hejslet, 2006 BCCA 34. The Court of Appeal outlined important factors to be
considered when assessing non-pecuniary damages at para. 46:

[46]      The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of
pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of
life;

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

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

(h)        impairment of physical
and mental abilities;

(i)         loss of lifestyle; and

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

[133]     The
assessment of non-pecuniary damages is necessarily influenced by the individual
plaintiff’s personal experiences in dealing with his injuries and their
consequences, and the plaintiff’s ability to articulate that experience: Dilello
v. Montgomery, 2005 BCCA 56 at para. 25.

[134]     Mr. Lennox
suffered injuries to his neck, back, thumb, and some discomfort to his knee.
His injuries interfered with his recreational activity, work, and enjoyment of
life.

[135]     Mr. Lennox
lived a fairly active life prior to the accident. His athletic pursuits
included: soccer, golf, taekwondo, skiing and scuba diving.

[136]     He said
the accident has affected his ability to golf and he now plays sporadically. He
has tried playing soccer, but notices that his knee swells up. He has skied
once or twice since the accident but has not returned to his pre-accident
aggressive style of skiing.

[137]     Prior to
the accident he was active in taekwondo and had involved his whole family.
Since the accident he has not been able to do the kneeling exercises required.
He wore a brace for some time but the kicking involved was too much for him.

[138]     He said
his knee hurt “pretty much since the accident”.

[139]     He said
that he is now a director of photography and stereography and does not continue
with steady camera work because of his ongoing knee complaints.

[140]     I accept
that that Mr. Lennox’s recreational activities were limited after the accident.
It appears that for most of the year after the accident his knee was not a significant
problem; the limitations to his activities during that time compromised his
overall enjoyment of life.

[141]     I accept
that his ability to perform his role in filming and painting were limited by
the injuries not related to the torn meniscus. It appears that the more serious
effects related to that complaint did not become limiting until one year after
the accident.

[142]     The
plaintiff relies on the following decisions from this Court regarding the
quantum of non-pecuniary damages:

·      
Hill v. Durham, 2009 BCSC 1480: $40,000;

·      
Poulton v. Inderbosch, 2010 BCSC 711: $70,000;

·      
Baxter v. Jamal, 2010 BCSC 289: $50,000;

·      
Lai v. Wang, 2009 BCSC 133: $40,000;

·      
Tong v. Sidhu, 2009 BCSC 305: $30,000;

·      
Filimek v Braaten, 2009 BCSC 866:  $30,000.

[143]     The
defendant invited me to assess non-pecuniary damages on the basis of:

·      
Cooper v. Torrance, 2003 BCPC 271: $2,500

·      
Seto v. Ng, 2009 BCPC 218: $2,500

·      
Dolha v. Heft, 2011 BCSC 737: $7,000

[144]     Non-pecuniary
damages are awarded to compensate the plaintiff for pain, suffering, loss of
enjoyment of life and loss of amenities. The compensation awarded should be
fair to all parties, and fairness is measured against awards made in comparable
cases. Such cases, though helpful, serve only as a rough guide.
Each case depends on its own unique facts: Trites v. Penner, 2010 BCSC
882 at paras. 188-189.

[145]     This
accident did not cause a tear in his medial meniscus.

[146]     The
effects of the injuries lasted for approximately one year. Although the acute
symptoms were mostly resolved within six months.

[147]     Mr. Lennox
received 46 treatments at the CBI, physiotherapy and rehabilitation office in
Toronto between September 3, 2003 and February 6, 2004.

[148]     When the Court
assesses non-pecuniary damages, it must address the unique circumstances of
each injured person. In my view, the plaintiff’s injuries are comparable to
those referred to in Kelly v. Yuen, 2010 BCSC 1794, except for Mr.
Lennox’s shorter recovery time. However, in view of his age, the extent and
duration of his back, neck, hand injuries and the short time during which he
had knee symptoms (not from the torn meniscus), Mr. Lennox will have judgment
for non-pecuniary damages of $15,000.

Disposition

[149]     Mr. Lennox
will have judgment for $15,000 for non-pecuniary damages and $10,000 as
compensation for his past loss of earning capacity and costs.

[150]     The
parties will have liberty to speak to the issue of costs if necessary;
otherwise the plaintiff is entitled to costs.

“Armstrong
J.”