IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130205

Docket: M122675

Registry:
New Westminster

Between:

John Graydon

Plaintiff

And

Bruce Harris and
Super Save Disposal Inc.

Defendants

Before:
The Honourable Mr. Justice Weatherill

Reasons for Judgment

[1]            
The plaintiff seeks damages for personal injuries suffered as a result
of a motor vehicle accident that took place on October 25, 2007.  He claims
non-pecuniary damages, damages for lost earning capacity and special damages.

[2]            
Liability is denied by the defendants.

The Plaintiff’s Evidence

a)    The
Plaintiff

[3]            
The plaintiff is 65 years old.  He is and has been a welder for over 40
years.  He receives a pension from his many years as a member of the
International Brotherhood of Boilermakers union.

[4]            
For the past twelve years, the plaintiff has been employed by Global
Rigging & Transport Canada Corp. (“Global Rigging”) as a welder.  Global
Rigging specializes, inter alia, in crane installation, modification and
repairs, primarily for the shipping industry.  Global Rigging has offices in
Surrey, British Columbia and in Virginia Beach, Virginia.

[5]            
Subsequent to his retirement, the plaintiff was approached by Global
Rigging to provide project superintendent and welding services for various
projects in the United States and internationally.  For the last several years,
the plaintiff has been working on projects in New Orleans and Virginia Beach. 
Currently, his primary function for Global Rigging is welding and welding supervision.

[6]            
On October 25, 2007, the plaintiff, who was 60 years old at the time,
had just finished an eight hour shift as a welder.  He was in his pick-up truck
driving out of Global Rigging’s yard in Surrey.  While stopped waiting for traffic
to clear on main thoroughfare (96^th Avenue), his vehicle was struck
by a large industrial garbage truck owned and operated by the defendant, Super
Save Disposal Inc., and driven by the defendant Bruce Harris.

[7]            
According to the plaintiff, the garbage truck had been travelling
eastbound along 96^th Avenue.  Another vehicle was approaching the
garbage truck westbound.  The garbage truck attempted to beat the oncoming
vehicle by cutting across 96^th Avenue at an angle into Global
Rigging’s yard when the collision occurred.

[8]            
The impact pushed the plaintiff’s vehicle backwards.  He was thrown
forward but was restrained by the seat belt he was wearing.  His knee hit
either the steering column or the dashboard.  His glasses were knocked off.  Both
doors were jammed shut as a result of the collision and the plaintiff had to
force the driver’s door open by kicking it.

[9]            
The plaintiff’s vehicle was equipped with air bags.  None of them
deployed.

[10]        
The defendant driver, Bruce Harris, immediately said to the plaintiff
words to the effect that the accident was his fault.

[11]        
The fire department attended the scene but the plaintiff did not feel the
need for an ambulance.  His vehicle was towed away as it was not operable.  The
damage to the plaintiff’s vehicle was sufficient for it to have been written
off.

[12]        
The plaintiff did not miss any work as a result of the accident except
on a few occasions when he went home early due to pain.  He did not lose any
pay.  To this day he continues to work a full shift for Global Rigging, often in
excess of ten hour days and often on weekends.

[13]        
Immediately after the accident, the plaintiff noticed that his left arm
and knee were sore.  He saw his family physician, Dr. Koelink, one week later. 
Dr. Koelink prescribed Tylenol 3 and physiotherapy.  The plaintiff attended
approximately 12 physiotherapy sessions during the next two months.  He
discontinued physiotherapy as it increased his back and leg pain.  He has also
had the occasional massage.  He has not had any other treatment subsequent to
the accident.

[14]        
In the days, weeks and months that followed the collision, the plaintiff
developed stiffness and soreness in his shoulder and neck.  He began to
experience back pain that he said felt like a knife in his back.  He also
developed pain in his leg, which flares up when he sits for long periods of
time while driving or seated on a plane.  He began to have numbness in his left
arm and leg.

[15]        
The intensity and duration of his pain varies depending upon his
activities.  He alleviates the pain with Aleve, Tylenol or, if necessary,
Tylenol 3.

[16]        
The plaintiff testified that, ever since the accident, he has experienced
constant dull headaches.  Occasionally, if he moves the wrong way, his
headaches become intense.  Wearing a hard hat and welding helmet, as is required
during welding work, aggravates his headaches causing him to become irritable.  He
testified that he often “flies off the handle” with his family and with those
he supervises at work, much more so than he ever did prior to the accident.  He
described how his sleep is either delayed or interrupted by these headaches.

[17]        
On direct examination, the plaintiff testified that he did not have any
of these symptoms prior to the accident.  However, during cross examination, he
admitted having a pre-existing neck injury and headaches from an earlier car
accident (in 1999) for which he had been taking Tylenol 3 for many years.  He
also admitted that the pain he is experiencing, particularly his headaches, is
not constant but rather is intermittent.  He described his headaches to Dr.
Koelink as “persistent”, “continued”, and “ongoing”.  He maintained that he has
learned to simply live with his pain.  He does not complain about it to his
doctor unless it flairs up.

[18]        
He testified that his hobbies and recreational activities have been
affected by his injuries.  Although he has continued to ride his motorcycle, he
claims his pain has affected his ability to golf and hunt.  During cross
examination he admitted that the main reason he no long hunts or plays golf has
more to do with him working outside of Canada than it does with any injuries
sustained during the accident.  He is still able to go on long walks and
perform household chores, more or less, unrestricted.

[19]        
The plaintiff continues to travel extensively for both work and
vacation; although sitting on an airplane for long periods of time causes him
some discomfort.

[20]        
The plaintiff testified that, like his father before him, he plans to
continue working at least into his seventies so long as he is able.

b)    Dr.
Anthony Koelink

[21]        
Dr. Koelink has been a practicing physician since 1977.  He has been the
plaintiff’s family physician since the mid-1990s.  He has treated many patients
over the age of 60 for whiplash-type injuries.  He provided both factual and
opinion evidence.  In respect of the latter, he was qualified as an expert in
muscular skeletal injuries and rehabilitation, specifically relating to
whiplash injuries.

[22]        
Whiplash injuries are classified into four categories:

[23]        
Dr. Koelink testified that, typically, soft tissue whiplash injuries
improve over time.  It is highly unusual for symptoms to worsen unless they are
aggravated or stressed by activity.

[24]        
Dr. Koelink has been treating the plaintiff for elbow, shoulder and neck
pain since June 1996.  Since then, he has prescribed Tylenol 3 to the plaintiff
as needed.  Indeed, he renewed the plaintiff’s Tylenol 3 prescription two
months before the accident because the plaintiff was complaining of continued
headaches.

[25]        
In 1999, the plaintiff was involved in a motor vehicle accident that
resulted in him having some neck pain and headaches.  These symptoms apparently
resolved within six months.

[26]        
On December 20, 2002, almost five years prior to the accident, Dr.
Koelink treated the plaintiff for left shoulder pain and prescribed Tylenol 3. 
On October 24, 2004, he treated the plaintiff for left shoulder pain and
diagnosed a possible underlying degenerative condition.

[27]        
On December 29, 2005, the plaintiff was sent for x-rays of his neck
because he was continuing to complain of pain.  The x-rays revealed a moderate
to marked degenerative disc disease at the C5 – C6 of the cervical spine
resulting in a narrowing of the right foraminal.  Dr. Koelink agreed on
cross-examination that such narrowing can result in numbness and tingling down
the arm.

[28]        
Dr. Koelink first saw the plaintiff after the October 25, 2007 accident
on November 1, 2007.  At that time the plaintiff presented with pain in his
left arm, low back and neck which he said was aggravated by his work as a
welder.  Dr. Koelink found that the range of motion of the plaintiff’s cervical
spine (neck) was restricted, with lateral flexion reduced to 20% and rotation
to 45% bilaterally.  The plaintiff also had reduced extension of his neck.  Dr.
Koelink noted local paracervical tenderness.  He sent the plaintiff for x-rays.

[29]        
The x-rays revealed the same degenerative condition to the C5-C6
cervical spine area as had been revealed by the earlier x-rays.

[30]        
By November 29, 2007, the plaintiff’s lateral neck flexion had been
reduced from 20% to 10%.

[31]        
Dr. Koelink was of the opinion, initially at least, that the October 25,
2007 accident caused the plaintiff to suffer a Type II, possibly Type III
injury with restricted cervical range of motion.  The injuries aggravated an
underlying degenerative condition particularly at the C5-C6 level of the spine. 
He maintained that the plaintiff’s neck pain and continued headaches are more
than 50% attributable to the accident.

[32]        
Dr. Koelink opined that the plaintiff’s pain symptoms likely mean his working
lifetime has been reduced.  On cross-examination he agreed that the plaintiff’s
degenerative condition, which predated the accident, will likely continue to
progress and is such that his remaining work lifetime would probably have been
reduced regardless of the October 25, 2007 accident.

[33]        
Dr. Koelink stated in his April 20, 2008 report that the extent to which
the injuries suffered in the accident would impact the plaintiff’s ability to
work would become apparent “within the next year or so”.

[34]        
On May 18, 2009, Dr. Koelink updated his April 20, 2008 report.  His
assessment of the plaintiff after seeing him on December 22, 2008, January 29,
2009 and in March 2009 was that he continued to experience soft tissue
headaches arising from degenerative changes in the neck which were aggravated
by his work activities.  It was his opinion that at least 50% of the
plaintiff’s neck pain, headaches and back pain was related to degenerative
changes associated with prolonged postural stress caused by his work as a
welder.

[35]        
On January 31, 2010, Dr. Koelink updated his May 18, 2009 report. 
X-rays and an MRI conducted in the meantime had not disclosed any significant
pathology.  However, Dr. Koelink changed his earlier opinion and concluded that
“there is less than a 50% chance that his current ongoing symptoms are
pre-existent and continuing with his underlying cervical degenerative changes”. 
He noted that “the ongoing symptoms of pain are of significant effect on Mr.
Graydon’s current work function”.

[36]        
Dr. Koelink’s final report is dated March 1, 2012.  He opined that the
plaintiff has experienced “significant improvement” over time, from constant pain
to intermittent pain primarily in the neck and headaches with some left arm
symptoms in the form of numbness and paraesthesias.  He was of the opinion that
these ongoing symptoms were, in large part, degenerative in nature – i.e. they
predated the October 25, 2007 accident.  In his opinion, the October 25, 2007
accident precipitated the onset of cervical symptoms of pain, stiffness,
intermittent left C8 nerve root irritation resulting in intermittent
paraesthesias in the left arm and cervicogenic headaches.  He noted that the
plaintiff “will likely manage his symptoms better if he eventually switches
career or simply stops working as a welder entirely and avoids excessive use of
his neck”.  He suggested that the plaintiff may be able to better manage his
symptoms by changing to a more sedentary supervisory employment position.

[37]        
Dr. Koelink noted that the plaintiff’s cervical occipital headache is
his primary disabling problem and requires continued use of Tylenol 3, more
frequently when the plaintiff is working.

[38]        
Dr. Koelink agreed on cross-examination that the plaintiff has in fact
been able to continue to work well beyond the time frame Dr. Koelink predicted
in his April 20, 2008 report and that any injuries sustained during the
accident had not significantly impacted his working life.  He also agreed on
cross-examination that the percentage figures he adopted in his reports were
somewhat arbitrary.

c)    Dr.
William Craig

[39]        
Dr. Craig obtained his Bachelor of Science degree in 1989, his Masters
of Science in 1993 and a Doctor of Medicine in 1999.  He completed five years
of residency training in physical medicine and rehabilitation, two years at
Dalhousie University and three years at the University of Utah.  He received
his fellowship in the specialty of Physical Medicine and Rehabilitation from
the Royal College of Physicians and Surgeons of Canada in 2004.  Since then, he
has practiced in this specialized area in the West Kootenays and North
Vancouver.

[40]        
Dr. Craig was qualified as an expert in physical medicine and
rehabilitative assessment.

[41]        
Dr. Craig’s opinions regarding the plaintiff’s complaints are set out in
two reports, dated April 2, 2009 and August 20, 2012.

[42]        
Dr. Craig first saw the plaintiff for assessment on April 1, 2009.  At
that time, the plaintiff presented with ongoing neck pain, headaches, left
shoulder pain and back pain.  The plaintiff reported that the injury to his
left knee had resolved since the October 25, 2007 accident.

[43]        
Dr. Craig examined the plaintiff and found that he had limited rotation of
his neck due to pain.  He found nothing remarkable in the plaintiff’s arms or
legs but found some tenderness and restrictions in the plaintiff’s shoulders
and lower back.

[44]        
Dr. Craig agreed with Dr. Koelink’s assessment that the plaintiff
suffered a moderate soft tissue injury to his neck, left shoulder and back as a
result of the October 25, 2007 accident.  He was also of the opinion that the
plaintiff’s headaches were due to the soft tissue injury to his neck.  Dr.
Craig was unable to link the plaintiff’s arm symptoms to the accident.  In Dr.
Craig’s opinion, the October 25, 2007 accident exacerbated the plaintiff’s
pre-existing condition.

[45]        
In April 2009, Dr. Craig was of the opinion that the plaintiff’s
condition would continue for at least another six months to a year with some
gradual improvement but with some permanent partial disability.  He expected
that the plaintiff would continue to be able to work as a welder but that there
would be a gradual decline in those activities due to age.

[46]        
Dr. Craig examined the plaintiff again on August 20, 2012, over three
years later.  He was of the opinion that there was no significant change to the
plaintiff’s condition with the exception that his shoulder symptoms had
resolved.  He opined that the plaintiff will likely continue to have neck pain
and headaches with a baseline level of discomfort with acute flares in his
symptoms.  He expects a gradual decline in the plaintiff’s functional ability
due to age.  In his opinion, the October 25, 2007 accident will cause that
decline to accelerate.

[47]        
He was of the opinion that intramuscular stimulation or trigger point
injection treatments could provide some room for improvement of the plaintiff’s
condition.

[48]        
Like Dr. Koelink, Dr. Craig was of the opinion that the plaintiff should
be able to continue to work for several more years if he moves into a more
supervisory role.

[49]        
On cross-examination, Dr, Craig agreed that, although there has been
gradual improvement in the plaintiff’s pre-existing neck pain and headaches symptoms,
they nevertheless have remained unresolved for over 15 years.  He also agreed
that the degenerative condition of the plaintiff’s cervical spine is part of
the natural aging process.

d)    Dr.
Donald Cameron

[50]        
Dr. Cameron is a neurologist.  His expert report dated March 12, 2012
was introduced in evidence by the plaintiff.  He did not testify.

[51]        
Dr. Cameron examined the plaintiff on February 22, 2012.  In his
opinion, the plaintiff suffered soft tissue and musculoskeletal injuries to his
neck, upper extremity and left knee in the October 25, 2007 accident and that
his headaches, which present on an intermittent basis, are the result of
musculoskeletal or cervicogenic injuries caused by the accident.

[52]        
It is Dr. Cameron’s opinion that the plaintiff’s headaches probably do not
create significant disability.

[53]        
Dr. Cameron agreed with Dr. Koelink that the plaintiff suffered from an exacerbation
of pre-existing neck pain caused by a whiplash injury sustained during the
October 25, 2007 accident.  Dr. Cameron does not believe the plaintiff’s
injuries have had a significant adverse effect on his work capabilities.

Analysis

a)    Liability

[54]        
Liability for the accident was denied by the defendants.  However, they
neither cross examined the plaintiff regarding his version of the event nor
called any evidence to contradict the plaintiff’s version of the event. 
Indeed, the defendants called no evidence at all.

[55]        
I have no reason to disbelieve the plaintiff’s version.  The defendants’
vehicle attempted to beat oncoming traffic by cutting across 96^th
Avenue at an angle into Global Rigging’s yard and collided with the plaintiff’s
stationary vehicle.  By doing so, the defendant Bruce Harris was negligent. 
The defendant, Super Save Disposal Inc., is vicariously liable for that
negligence.

[56]        
I find that the defendants are wholly liable for any injury and damages
suffered by the plaintiff as a result of the October 25, 2007 accident.

b)    Non-Pecuniary
Damages

[57]        
The plaintiff argues that the sole or alternatively material cause of
his ongoing symptoms was the October 25, 2007 accident.  He argues that his
health and potential future employability have been compromised as a result.

[58]        
Both Dr. Koelink and Dr. Craig attribute the plaintiff’s ongoing
headaches and other pain to a soft tissue injury resulting from the October 25,
2007 accident which exacerbated a pre-existing neck condition.

[59]        
The plaintiff argues that he continues to have headaches as well as
neck, back and arm pain five and one-half years after the accident and that his
prognosis for recovery is poor.  He submits that non-pecuniary damages in the
range of $100,000 to $150,000 are appropriate in this case.  The plaintiff relies
on the following decisions as the basis for this submission:

1.     Ward v.
Klaus, 2010 BCSC 1211 ($150,000)

2.     Gabbard
v. Hung, 1999 CanLII 6437 (B.C.S.C.) ($95,000)

3.    
Fox v. Danis, 2005 BCSC 102; aff’d 2006 BCCA 324 ($100,000)

[60]        
In Ward, the plaintiff suffered a soft tissue injury to her neck,
continuing generalized moderate headaches with severe migraines occurring two
to three times per week.  The plaintiff had a neurostimulator surgically
implanted with electrodes to stimulate her nerves in order to reduce her pain. 
Within three years of the accident she had to stop work and she began to
collect a disability pension.  She became addicted to the narcotics she had
been prescribed for her pain.  She was also on morphine.  Her homemaking role
was substantially diminished.  Her family was in despair.  In short, her work
and home life were devastated by the accident.

[61]        
In Gabbard, the plaintiff suffered soft tissue injuries to
her neck and upper back with associated flare up of an old back injury. 
Subsequently, she developed fibromyalgia with associated sleep difficulties, in
respect of which the accident was a materially contributing factor.  During the
seven years between the dates of the accident and trial, her health problems
waxed and waned.  She became psychologically debilitated.  Her marriage
relationship deteriorated.  She had to give up many if not all of her outside
interests.

[62]        
Fox was a case involving a plaintiff who suffered permanent,
moderately severe soft tissue injury to her cervical and lumbar spine.  She
also sustained nerve damage to her lower back.  She had migraines caused by
muscle tension.  She continued to work but this required her full energy.  She
also suffered a prolapsed disc at level L5-S1 resulting in pain running into
her left buttock, down her left leg and into her left foot.  She underwent
surgery.  She could not longer participate in many of the activities she had enjoyed
prior to the accident.

[63]        
The defendants submit that the accident had minimal impact on the
plaintiff and his life and that his current symptoms are primarily attributable
to his pre-accident condition caused by either the 1999 accident or an
age-related degenerative disability.

[64]        
The defendants argue that the plaintiff has been inconsistent in his
evidence and the court should be circumspect in accepting his subjective
complaints.  Defendants’ counsel points to the following examples of the
plaintiff’s inconsistent evidence:

a)     the
plaintiff’s evidence-in-chief that he has suffered from “constant” neck pain
and headaches since the October 25, 2007 accident.  However he told his doctors
his pain and headaches were “intermittent”’;

b)     the
plaintiff testified at trial that he has not gone more than one week without
taking Tylenol 3.  During his examination for discovery he gave evidence that
he has gone as long as one month without taking a Tylenol 3;

c)    
the plaintiff testified at trial that his household chores and
recreational activities had been affected by his injuries.  However during his
examination for discovery he gave evidence that there is nothing he was able to
do around the house or recreationally before the accident that he cannot do now
or has having difficulty doing after the accident;

[65]        
The defendants rely on the following decisions as demonstrating that a
more appropriate award for non-pecuniary damages is in the range of $35,000 to
$45,000:

a)     Kahle
v. Ritter, [2002] BCSC 199

The plaintiff had a pre-existing lower back injury but no
functional limitations.  He sustained soft tissue injuries to his neck and lower
back as a result of the accident.  At the time of the accident he was 24 years
old.  Five years after the accident, he continued to suffer from chronic occasional
pain in his neck and had chronic ongoing pain in his lower back that was likely
permanent.  He was able to work and engage in recreational activities, although
he may have pain while doing them.  The court awarded $50,000 for non-pecuniary
damages.

b)     Verhnjak
v. Papa, [2005] BCSC 1129

A 55 year old plaintiff suffered a flexion-extension injury
of the cervical spine as a result of a motor vehicle accident.  His soft tissue
injuries were unresolved three years after the accident and were considered
permanent.  She was stoic about her injuries and she carried on despite her
pain, which increased when she worked.  She was not limited in her job
activities.  The court awarded $40,000 in non-pecuniary damages.

c)     Doosti
v. Enterprise Rent-a-Car Canada Ltd. [2006] BCSC 247

The 41 year old plaintiff sustained soft tissue injuries from
an accident three years prior.  He had a pre-existing degenerative condition in
his spine, specifically C5-C6.  The accident exacerbated this condition.  It
also resulted in moderate but intermittent chronic pain.  He did not have a
reasonable prospect for full recovery.  The court awarded $35,000 for
non-pecuniary damages less a 20% contingency for his pre-existing degenerative
condition.

d)     Gilmour
v. Machibroda [2008] BCSC 260

A 24 year old plaintiff sustained an injury to his neck and
lower back from a collision.  He suffered from chronic pain to his upper back
and neck as well as headaches.  He had a pre-existing degenerative condition in
his spine that was asymptomatic before the accident.  The court found that this
condition would have detrimentally affected the plaintiff in the future
regardless of the defendant’s negligence.  He was awarded $45,000 for
non-pecuniary damages.

e)     Singh
v. Shergill 2010 BCSC 323

The 55 year old plaintiff had a pre-existing neck and back
problem.  Medical evidence tendered at trial indicated the accident accelerated
the development of this condition.  He continued to work and succeed at his job
even though it required that he lift heavy weights.  The court found that it
was likely he would continue to be employed for the remainder of his intended
work life although he would likely suffer episodic pain.  It was likely that
his condition would gradually improve.  He was awarded $40,000 in non-pecuniary
damages.

f)       Lamont
v. Stead [2010] BCSC 432

The 50 year old plaintiff sustained a soft tissue injury from
a collision.  She had a pre-existing degenerative disc disease.  The court
concluded that she suffered from chronic, disabling and likely permanent pain. 
Her ongoing pain would likely significantly affect her future activities, especially
outside of work.  She was awarded $60,000 in non-pecuniary damages.

g)     Coutakis
v. Lean [2012] BCSC 970

A 71 year old plaintiff suffered
from continuous headaches and lower back pain as a result of a motor vehicle accident. 
There was little likelihood of significant improvement in his condition or in
his ability to return to work given his age.  The court declined to follow
authority involving younger persons.  He was awarded $45,000 in non-pecuniary
damages.

[66]        
In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, the Court of
Appeal set out the following non-exhaustive list of factors that influence an
award of non-pecuniary damages:

a)     age of the
plaintiff;

b)     nature of
the injury;

c)     severity
and duration of pain;

d)     disability;

e)     emotional
suffering;

f)       loss
or impairment of life;

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.

[67]        
Based upon the evidence before me, I find that the plaintiff is a very
stoic and hardworking man who has suffered a moderate soft tissue injury to his
neck, lower back and shoulders as a result of the October 25, 2007 accident.  I
also find that, at the time of the October 25, 2007 accident, the plaintiff was
suffering from pre-existing neck pain, headaches and a degenerative condition
of the cervical spine.  That is why Dr. Koelink was continuing to prescribe
Tylenol 3 for him.  The soft tissue injuries suffered during the October 25,
2007 accident exacerbated his pre-existing condition.

[68]        
Despite some inconsistencies in his evidence, I find that the
plaintiff’s injuries have had and will have a lasting effect on his work life
and, to a lesser degree, on his home and recreational life.  He continues to be
able to work but not without pain and discomfort.  He continues to have
headaches which flare up when he is welding.

[69]        
He is able to travel both for vacation and work without adverse effects
with the exception of occasional numbness in his left leg after sitting for
prolonged periods of time.  However, as Dr. Craig testified, that discomfort
can be eased by changing position.

[70]        
The plaintiff was suffering from pain, headaches and a degenerative
condition of the cervical spine well before the October 25, 2007 accident.  In
my view, there is at least a 25% chance that the plaintiff’s pre-existing
condition would have interfered with his work and other activities had the
October 25, 2007 accident not occurred.

[71]        
After considering all of the plaintiff’s circumstances, the principles
set out in Stapley and the cases provided by counsel, and after applying
a 25% contingency in respect of the plaintiff’s pre-existing condition, I find
that an award of $60,000 for non-pecuniary damages is appropriate.

c)    Mitigation

[72]        
The defendants plead that the plaintiff did not take reasonable steps to
mitigate his loss by failing to follow his doctor’s recommendations. 
Defendants’ counsel, wisely in my view, did not press this issue during
argument.  There is no evidence that the plaintiff would have recovered from
his injuries either more fully or quickly had he done so.  Although Dr. Craig
was of the opinion that the plaintiff may have benefitted from
intramuscular stimulation or trigger point injection treatments, he did not
opine that he probably would have done so.  The defendants have failed to prove
on the balance of probabilities that the plaintiff failed to mitigate his loss.

d)    Loss
of Future Earning Capacity

[73]        
The plaintiff, who is now 66 years of age, is and has always been a
hardworking individual who does not turn down work.  He missed little if any
work and missed no pay as a result of the October 25, 2007 accident.  He
continues, even at his age, to work long hours at a strenuous job.  There is no
question that he will continue to do so as long as he is able in keeping with
his character.  If the plaintiff is unable to continue to weld, the evidence
indicates that he will work in a supervisory capacity.  To date, the October
25, 2007 accident has had no significant impact on his earning capacity.  The
question is whether the accident will impact his future earning capacity.

[74]        
As was stated by Madam Justice Huddart in Bradley v. Dymond, 2002
BCCA 284 at para. 9:

…The trial judge must gaze into
the future with the benefit of all the evidence to assess two uncertainties:
what might have been and what might be.  Both require an assessment of the
physical, emotional, and mental capacity of a claimant, of his character, of
the family, community, and economic forces at work.

[75]        
The plaintiff bears the onus of establishing a real and substantial
possibility of a future event attributable to the defendants’ negligence
leading to an income loss: Perren v. Lalari 2010 BCCA 140 at para. 32.

[76]        
Initially, Dr. Koelink’s opinion was that the plaintiff’s working life
span would be affected by his degenerative condition, not the October 25, 2007
accident.  He agreed that the plaintiff’s degenerative condition would likely progress
with age.  Subsequently, Dr. Koelink changed his opinion, opining there is
“less than a 50% chance that [the plaintiff’s] current ongoing symptoms are
pre-existent and continuing with his underlying cervical degenerative
changes”.  He agreed that the percentages he used were arbitrary.  Later still,
Dr. Koelink opined that the majority of the plaintiff’s symptoms “are in large
part created by the underlying degenerative changes”.

[77]        
Dr. Craig also opined that the plaintiff will likely experience a
decline in his work capabilities due to his pre-existing degenerative
condition.

[78]        
According to Dr. Cameron, the plaintiff’s neck pain and headaches were
not “significantly disabling” to the plaintiff with respect to his work
capabilities.

[79]        
On the evidence before me, I find that the accident has had and will
have little if any impact on the plaintiff’s ability to earn income for the
rest of his intended work life.  There was no real and substantial evidence
that his pain will have any effect on his income.  Moreover, he continues to
weld and perform welding supervision work.  There was no evidence that his
current employer will not continue to use his experience, expertise and
services in the future in either a welding or supervisory capacity.  There was
no evidence that the plaintiff is less marketable or attractive as an employee
to potential employers.  There was no real and substantial evidence that any
future disability will be attributable to the October 25, 2007 accident rather
than to the natural aging process or the plaintiff’s pre-existing condition. 
The comments of Drs. Koelink and Craig in this regard are pure speculation.  The
plaintiff has already proven them wrong.  He has beaten the odds.

[80]        
Any ongoing pain or discomfort the plaintiff experiences while
performing his work duties have been compensated through the award of the
non-pecuniary damages.

[81]        
Accordingly, the plaintiff’s claim for loss of future earning capacity
is dismissed.

e)    Special
Damages

[82]        
The parties are in agreement that the plaintiff incurred special damages
in the amount of $167.00 in respect of prescription drugs.  I agree with
counsel for the defendants that the plaintiff would likely have required Tylenol
3 regardless of the accident.  In my view it is appropriate to reduce the
plaintiff’s claim for special damages by the same contingency percentage I
applied in respect of the assessment of non-pecuniary damages, which is 25%.

[83]        
The plaintiff is entitled to recover special damages in the amount of
$125.25.

Conclusion

[84]        
The plaintiff is entitled to judgment in the following amounts:

[85]        
The plaintiff is entitled to his costs at scale B.

“Weatherill J.”