IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130426

Docket: M134732

Registry:
New Westminster

Between:

Miroslaw Tadeusz
Grudzien

Plaintiff

And

Xiu Hong Hu and
Honda Canada Finance Inc.

Defendants

Before:
The Honourable Mr. Justice Verhoeven

Reasons for Judgment

I.                
Introduction

[1]            
This is an assessment of damages relating to a motor vehicle accident that
occurred January 14, 2010.  Liability for the accident is admitted.

[2]            
The plaintiff is Mr. Miroslaw (Mike) Grudzien. At the time of the
accident he was 46 years of age. He was a self-employed hardwood flooring
installer and refinisher.  At trial, approaching three years after the
accident, he complains of continuing pain and limitation of function in his low
back and right knee, which continue to impair his activities and enjoyment of
life, and his ability to earn an income.  He claims damages for loss of past
and future earnings, special damages, and non-pecuniary damages.

[3]            
The defendants concede that the plaintiff suffered injuries in the
accident, but they say that the plaintiff has not proven his claims other that
for non-pecuniary loss and some special damages.  They also contend that the
award of damages for non-pecuniary loss and for loss of income, if any, should
be reduced by 20% due to a pre-existing degenerative condition in his spine and
a further 20% for failure to mitigate his loss.

[4]            
In monetary terms the claims of the plaintiff and the position of the
defendants are as follows:

II.              
Background Facts

A.             
The Accident

[5]            
At about 9:00 a.m. on Thursday, January 14, 2010, Mr. Grudzien was
driving his wife’s 2004 Ford Windstar mini-van, proceeding westbound on Highway
1 near the Kensington Avenue exit in Burnaby.  Mrs. Grudzien was sitting
in the passenger seat.  They had proceeded from their home in Surrey.  Mr. Grudzien
was planning to drop Mrs. Grudzien off at a shopping centre, while he
continued on to complete a floor refinishing job. They were travelling in the
HOV lane to the left of the other lanes of traffic. Traffic in the HOV lane was
light. The other lanes were very congested.  Mr. Grudzien was travelling
at a speed approaching 80 km/h when the defendant Ms. Hu’s vehicle suddenly
veered into the HOV lane in front of Mr. Grudzien.  Mr. Grudzien
applied the brakes but he could not avoid the collision.  The right front area
of the Grudzien vehicle impacted with the left front area of the Hu vehicle.

[6]            
The collision was of at least moderate severity.  Mr. Grudzien
described the impact as “quite hard”.  His vehicle came to a rest in the HOV
lane about 50 or 60 metres from the point of impact.  Although when Mr. Grudzien
saw his family doctor, Dr. Andrew Major on February 5, 2010, Mr. Grudzien
reported that his vehicle had spun to the left and struck the concrete
meridian, this is not accurate.  The damage to the Windstar was confined to its
right hand, passenger side.  The right front tire blew out. Photos taken at the
scene show moderate damage to the Windstar.  No collision damage estimates are
in evidence, but the damage was severe enough that the vehicle was written off.

[7]            
Mr. Grudzien did not lose consciousness.  Although he felt dizzy
and disoriented, he got out of the vehicle and began walking towards the
defendant Hu’s vehicle.  However as she was screaming and blaming him for the
accident, and  was apparently uninjured, when he was still part way to her
vehicle, Mr. Grudzien stopped and returned to his vehicle.  Emergency
personnel attended the scene.  Mr. and Mrs. Grudzien got a ride in
the tow truck to a gas station in the vicinity, and then they took a taxi to
their home in Surrey.  Mr. Grudzien called a friend and flooring worker, Mr. Rugana,
to assist him with completing the flooring job, which had to be done.  Mr. Grudzien
drove another vehicle to a Skytrain station where he picked up Mr. Rugana. 
Mr. Grudzien or Mr. Rugana drove to the jobsite, which I infer was in
or near Burnaby.  Mr. Rugana did the heavier work involved in completing the
flooring job, which involved applying the final finish coat to the floor.  Mr. Rugana
did the buffing of the floor using a machine.  Mr. Grudzien was able to do
some vacuuming and mopping.  Mr. Grudzien returned home. He took pain
medication and went to bed very early at 6:30 or 7:00 p.m.

[8]            
The next day he was suffering with stiffness and pain, and sought
treatment at a walk in clinic, as his own Doctor was unavailable.  He saw his
GP, Dr. Major, for the first time on February 5, 2010, about three weeks
post-accident.

B.             
Pre-Accident Condition of the Plaintiff

[9]            
Mr. Grudzien testified that he suffered temporary neck and back
soft tissue type injuries in two prior motor vehicle accidents, the first
occurring about 20 years prior to the trial, and the second occurring about 14
years prior to the trial.  He testified that at the time of this most recent accident
he was not having any back problems.  He had some liver damage as a result of
previous alcohol abuse, and was overweight.  Dr. Major has been his family
physician since March 1, 2007, almost three years pre-accident. He mentioned no
prior health problems other than back injuries from prior motor vehicle
accidents from which he had fully recovered.

[10]        
Mr. Grudzien testified that prior to the accident he was not having
any back problems.  He enjoyed gardening and was an avid hunter.  He was
diagnosed with diabetes in 2012, about six months prior to the trial.

[11]        
There is no evidence of any prior injury to his right knee.

[12]        
I conclude that prior to the accident Mr. Grudzien was not having
back or knee problems.

C.             
Post-Accident Condition of the Plaintiff

[13]        
Immediately after the accident the plaintiff noticed a large bruise on
his right knee.  He had a bruise and abrasion on the left side of his head,
perhaps from hitting his head on the inside of the vehicle.  He had pain in his
shoulders, his chest and his right elbow.  He chipped an artificial tooth, a
front left incisor, and he had some loosened teeth.

[14]        
His less severe injuries, in terms of persistence, were as follows:

a)    Right chest:
pain which lasted a few weeks, with occasional “shooting” pains still occurring
at the time of trial;

b)    Right elbow
injury: completely healed within a few weeks;

c)     bruise and
contusion to right side of his head: healed within a few weeks;

d)    neck pain:
lasting about six months;

e)    headaches, dizziness,
vomiting, nausea, lasting several weeks; and

f)      sleep
disturbance: significant for several weeks, and then recurring with flare-ups
of pain.

[15]        
His more severe injuries were to his low back, and his right knee.

[16]        
With respect to his low back, Mr. Grudzien testified that in the
immediate post accident period he would subjectively rate the pain in his low
back pain as 9 out of 10.  There was a gradual improvement over time, such that
he now rates his back pain as being 3 out of 10, which he describes as now
being normal. He testified that he does not know what it is like to be pain
free anymore.  He testified that he experiences flare ups in his low back pain
that may be brought on by activities such as a long day at work, long car
rides, repetitive lifting, or which may occur without any known cause.  He
avoids activities which he knows will cause a flare up of his symptoms.  He has
suffered two major flare-ups of his back pain in the last two years, each lasting
about 3 months.  He experiences short term flare ups as well, which can last a
day or two.  The short term flare ups occur at variable intervals and
frequency, from several times in a week to only once in a month.

[17]        
Mr. Grudzien testified that his right knee pain has diminished,
generally, from 10 out of 10 post accident, to zero.  He testified that his
knee now becomes painful with activities, such as walking or running, or
squatting.  He can walk 5 km on flat ground or even run briefly without
problems, but cannot walk uphill for a single kilometre without pain.  If pain
is triggered, it can last for a week.

[18]        
Mr. Grudzien attended 35 sessions of physiotherapy, from February
19, 2010 to October 5, 2010.  He saw a dentist regarding his chipped tooth on
August 10, 2010.  He has not had the tooth replaced.  He participated in six or
seven kinesiology exercise sessions with a physiotherapist from March 2012 to
July, 2012.

[19]        
At the time of the accident he weighed 245 pounds. He is 6 foot, 3
inches tall. As of July, 2012 he had lost about 45 pounds, but has since
regained eight pounds, so that at trial he weighed 208 pounds.  He testified
that pain limits his ability to exercise, but he candidly volunteered the
observation that perhaps he eats too much, too.

III.            
Analysis

A.             
Assessment of the Evidence of the Plaintiff

[20]        
I found the plaintiff to be an honest and straightforward witness in
relation to his injuries.  There were few signs of exaggeration of his injuries
or their physical and functional consequences.  However as I will explain, I
had more difficulties with respect to his contentions of loss of income, based
on a lack of clarity of the evidence, inconsistencies, and a lack of supporting
documentation and evidence.

B.             
Other Evidence

[21]        
The trial was brief.  The only lay witnesses at trial were the plaintiff
himself and two representatives of his customers or former customers.

C.             
Medical Evidence

[22]        
There were two medical witnesses at trial.

[23]        
The plaintiff’s family doctor, Dr. Andrew Major, provided a report
and testified at trial.  His report indicates that Mr. Grudzien suffered a
number of sprains and contusions, most of which were resolved within a few
months.  However he noted possible persistence of his right knee problems, and
definite persistence of his low back sprain.  He noted that pre-existing
degenerative changes in the lower spine often lead to a prolonged recovery, and
it appeared to him that this was the case with respect to Mr. Grudzien’s
slow low back improvement.  At the time of his report, October 18, 2011, Dr. Major
foresaw continuing gradual improvement in his back. He thought that it was
reasonable for Mr. Grudzien to have avoided heavy lifting during the acute
phase of his recovery, but he strongly encouraged exercise and a gradual return
to regular work duties. He observed that his leisure activities would
conceivably have been affected by his injuries.

[24]        
At trial, on cross examination, Dr. Major testified that
degenerative changes in the spine are normal and are a matter of degree.  He
did not recall seeing anyone of Mr. Grudzien’s age without seeing some
evidence of degenerative changes in the lower spine.

[25]        
At the request of his counsel, Mr. Grudzien saw a specialist in
physical medicine and rehabilitation, Dr. William Craig, who provided a
report dated October 11, 2011, and a second report dated August 20, 2012
following a further assessment, and an addendum to that report dated August 31,
2012.  Dr. Craig testified at the trial.

[26]        
In Dr. Craig’s opinion, in the accident, Mr. Grudzien suffered:

a)    moderate soft
tissue injury to his neck, which resolved completely; and

b)    an injury to his
low back, involving the posterior spinal joints.

[27]        
As to his right knee, Dr. Craig thought the cause was likely
“multi-factorial”.  His examination revealed a likelihood of bursitis, possible
patellar tendinitis, and medial meniscal tear, as shown on an MRI.  He mentioned
a pre-existing risk of knee tendinitis due to his occupation.  He mentioned
possible pre-existing degenerative changes in his knees becoming symptomatic due
to the acute injury to his knee in the accident.

[28]        
He suggested various treatment options for the low back pain and the
right knee.

[29]        
In relation to his low back, Dr. Craig’s second report indicates
that Mr. Grudzien likely has facet joint arthropathy. The facet joints are
the posterior spinal joints. He suggests consideration of treatments such as
medial branch blocks, surgery, or cortisone injections.

[30]        
With respect to his right knee, Dr. Craig recommended possible
referral to an orthopaedic surgeon to determine whether Mr. Grudzien would
benefit from an arthroscopic procedure.  However, first, he recommended injections
of a visco-supplement, (a synthetic joint fluid) or perhaps cortisone. He
suggested a knee sleeve and custom foot orthotics.  Dr. Craig doubted
whether the meniscal tear was caused in the accident, based upon the mechanism
of the accident as he understood it.  In relation to this, Dr. Major was
not sure he could agree with Dr. Craig. He thought the tear could have
been caused by the accident, directly.

[31]        
As to prognosis, in Dr. Craig’s first report, he said that
prognosis for resolution of his right knee problem was favourable, but
prognosis with respect to his low back was more guarded.  In general, in his
second report Dr. Craig is less optimistic with respect to both
conditions.  Dr. Craig noted that Mr. Grudzien had experienced some
improvement between his first assessment and his second assessment
approximately 10 months later.  In his view, there continued to be “room for
improvement” with respect to both conditions, with appropriate treatment.  However
his favourable prognosis for resolution of the right knee problem was not repeated
in his second report.

[32]        
In Dr. Craig’s view, due to the combination of his ongoing knee and
low back pain, Mr. Grudzien will be somewhat limited in relation to the
heavier aspects of hardwood floor refinishing work and will be limited in doing
flooring installation work, due to prolonged work on his knees and heavy
lifting.  In general, he says that Mr. Grudzien should be able to return
to full time hours at the lighter aspects of his job.  In his testimony he
acknowledged that he did not have the benefit of a great deal of detail
concerning the details of the activities involved with Mr. Grudzien’s work
as a hardwood flooring installer and refinisher, and would in that respect have
to defer to the opinion of an occupational therapist.  There was, however, no
report from an occupational therapist entered into evidence at trial.

[33]        
In Dr. Craig’s opinion Mr. Grudzien is at risk for aggravation
of his injuries in a subsequent accident or injury, with a more prolonged
recovery time, and he has a slightly increased risk of accelerated degenerative
changes to his back.  In his view, with treatment, Mr. Grudzien should be
able to increase his tolerance to walking, hiking and hunting activities. He
should be able to carry out his activities of daily living except for prolonged
kneeling or heavier lifting and carrying.

[34]        
I found both Dr. Major and Dr. Craig to be fair, reasonable
and reliable witnesses.

IV.           
Assessment

[35]        
I will assess the plaintiff’s claims for damages within the following
categories:

1.     Non-pecuniary
damages;

2.     Loss of
earning capacity; and

3.     Special
damages.

A.             
Non Pecuniary Loss – Assessment

[36]        
On the basis of all of the evidence, I find that the plaintiff suffered
from the following injuries in the accident:

a)    acute injuries,
consisting of chest injury, right elbow injury, bruise, abrasion and contusion
the right side of his head, all of which were resolved within a few weeks;

b)    neck pain,
lasting about six months;

c)     headaches,
dizziness, vomiting, and nausea, lasting several weeks;

d)    sleep disturbance,
which was significant for several weeks, and which continues occasionally with
flare-ups of pain;

e)    right knee
injury, persisting; and

f)      low
back pain, persisting.

[37]        
Mr. Grudzien’s most significant ongoing injury is to his low back.

[38]        
At trial Mr. Grudzien described his back pain as constant, with
flare ups that can be of short or long duration, from a day or two to several
weeks.  As noted, he testified that pain at the level he describes as three out
of 10 is now normal. He needs to be cautious about his activities in order to
avoid triggering a flare up. He takes pain medication as infrequently as he
can.  However Dr. Craig notes in his first report that Mr. Grudzien
reported “episodic” pain across his low back; that is, not constant.  According
to Dr. Craig, Mr. Grudzien reported that if he is cautious about
carrying out his work tasks, and if he avoids using heavier machines and heavy
lifting, he has minimal or no symptoms.  As I found both the plaintiff and Dr. Craig
to be reliable witnesses, this discrepancy is difficult to resolve.

[39]        
Doing the best I can on the state of the evidence, I conclude that Mr. Grudzien
is, as he says, never completely free of pain, but that typically and generally
the low back pain is at low level, of the kind that most people might describe
as one or two out of ten, rather than three out of ten as the plaintiff says. 
In any event I find that the low back pain Mr. Grudzien suffers from is
highly variable.

[40]        
Despite Dr. Craig’s characterisation of the right knee injury as being
“multi-factorial”, I find that on a legal basis the plaintiff’s right knee
injury was caused by the motor vehicle accident.  That is, but for the accident
Mr. Grudzien would not have suffered the knee injury he now has: Clements
v. Clements, 2012 SCC 32, at para. 8.  Whether Mr. Grudzien also suffered a
meniscal tear in the accident is doubtful, based on Dr. Craig’s opinion, but I
do not need to decide this question, as it does not affect my assessment of the
plaintiff’s damages.

[41]        
The plaintiff’s low back and knee injuries are now chronic in nature.
While, as Dr. Craig says, with appropriate treatment, there is “room for mild
improvement symptomatically and functionally” with respect to both his back and
his knee, as I interpret Dr. Craig’s evidence, the chances for complete
resolution of his back and knee injuries are poor.  On the other hand, Dr. Craig
does not go so far as to state that Mr. Grudzien’s injuries are essentially
permanent in nature.

[42]        
In summary, Mr. Grudzien’s accident injuries resulted in
significant acute injuries lasting from several weeks to several months, and
ongoing pain and disability resulting from the more chronic injuries to his
knee and low back.  These injuries have been slow to resolve although with time
some improvement has been observed.  Further treatment options remain open to Mr. Grudzien
which may provide further relief.  There is a likelihood that his low back and
knee injuries will persist indefinitely, and a possibility that they will be
essentially permanent.

[43]        
His persisting injuries are not debilitating, but they are significantly
limiting.  Mr. Grudzien is a passionate hunter.  He continues to
participate in an annual hunting trip to the north east of B.C.  He uses an ATV
instead of walking.  The long drives from Prince George and Fort St. John are
difficult.  He cannot go hunting alone; he needs the assistance of others.  He
is less able to participate in gardening activities on his large property in
Surrey.  He enjoys vacationing abroad with his wife. They continue to travel
regularly.  Since the accident they have been to Mexico, where they have a time
share residence of some kind.  They have been to Florida and Hawaii.  His
activities of daily living are somewhat restricted. His ability to work in his
occupation and business of hardwood installation and refinishing is limited.  His
social life has been detrimentally affected.  However I received no details of
this.

B.             
Defendants’ Failure to Mitigate Argument

[44]        
The defendants contend that the plaintiff has failed to mitigate his
loss by failing to follow the advice of Dr. Craig regarding injection
therapies for his low back and knee, and that his failure to do so has resulted
in persistence of his symptoms.

[45]        
In Dr. Craig’s second report he suggests treatment options for Mr. Grudzien’s
back injury.  Dr. Craig suggests, as follows:

Treatment include[s] blocking the
sensory nerve supply (medial branch block) and if effective, ablating the nerve
supply (rhizotomy).  Currently there is a 6-12 month wait for these procedures
through the public system.  Cortisone injection of these joints under x-ray
guidance is another option, with wait times typically 2-4 months.

[46]        
With respect to Mr. Grudzien’s knee, Dr. Craig suggests, in
part, as follows:

I would recommend assessment by
an orthopedic surgeon to determine whether he could potentially benefit from a
knee scope.  I would also suggest an injection of a viscosupplement such as
Durolane.  This procedure is covered through the Medical Services Plan but the
medication is not.  Total cost is about $400 for the solution and this may be
repeated up to several times.  If he had a more acutely swollen knee, then a
cortisone injection is an option. …

[47]        
In cross-examination, Mr. Grudzien did not rule out undergoing
spinal injections.  He said he was somewhat frightened of a surgical procedure
relating to his spine.  He said if necessary he would undertake the procedure. 
Similarly with respect to Durolane injection or cortisone injection into his
knee, he said that if it is helpful he would do it, but he would like to
research these procedures first.  He said he has not had time yet to see an
orthopedic surgeon with respect to arthroscopic procedures for his knee.  He
did, however, undergo an MRI evaluation.

[48]        
The onus is on the defendant to prove that the plaintiff could have
avoided all or a portion of his loss.  In a personal injury case, the defendant
must prove two things:

1.     That the
plaintiff acted unreasonably in failing to pursue a course  of medical
treatment recommended to him by doctors; and

2.     The extent
to which, if any, the plaintiff’s damages would have been reduced had he acted
reasonably: Chui v. Chui, 2002 BCCA 618, at para. 57.

[49]        
In order to prove a failure to mitigate, the defendant must do more than
show that the plaintiff failed to engage in treatment that could or might have
been beneficial: Gregory v. Insurance Corporation of British Columbia,
2011 BCCA 144, at para. 56.

[50]        
The defendants have not satisfied me that a deduction should be made
against the plaintiff’s losses on the basis of a failure to mitigate a breach
of his duty to mitigate his loss.  The advice that the defendants rely upon is
set out in Dr. Craig’s report of August 20, 2012, only three months prior
to trial.  There was a very brief cross-examination of Mr. Grudzien on this
issue.  Mr. Grudzien did not rule out undergoing any of the suggested
treatment, although he expressed some reluctance and concern.  There was no
evidence as to what, if any, advice or discussions Mr. Grudzien had with
his own doctor, Dr. Major, considering the recommendations made by Dr. Craig. 
On the evidence as a whole I am not satisfied that the defendants have
established that Mr. Grudzien has unreasonably failed to pursue a course
of medical treatment.  I am also not satisfied that the defendants have
established that the recommended treatment would likely have resulted in
avoidance of some of the loss.  Dr. Craig’s opinion does not go that far. 
There is no other evidence supporting the defendants’ position.  Thus, the defendants
have failed to establish a failure to mitigate on the part of the plaintiff.

[51]        
However, the fact that viable treatment options remain open that have
not yet been fully explored is relevant to my assessment of the plaintiff’s
damages, and has been taken into account in that respect.

[52]        
The defendants further contend that Mr. Grudzien has failed to mitigate
his loss of earnings by seeking less physically demanding alternative
employment, better suited to his abilities.

[53]        
The defendants did not adduce evidence showing that there are other
positions available to the plaintiff.  In cross-examination Mr. Grudzien was
asked whether he had made efforts to find work other than in the flooring installation
and refinishing field.  His response was simply that he would like to stay in
that line of work if he could.  He did not consider that he could, at this
stage of life, resume his work as an electrician, his occupation in Poland, as
it would require re-training.  It is evident that since the accident Mr. Grudzien
has continued to attempt to keep his flooring installation and refinishing
business operating.  Once again I am not satisfied that the defendants have
established an unreasonable failure on the part of the plaintiff to take steps
which would have mitigated his loss.

C.             
Defendants’ Argument regarding Pre-Existing Conditions

[54]        
The defendants argue that the plaintiff’s damages should be reduced by a
factor of 20% as a result of a pre-existing degenerative condition in his
lumbar spine.

[55]        
As noted, Dr. Major stated that degenerative changes in his
lumbosacral spine as shown on the x-ray “often leads to prolonged recovery from
acute injuries and it appears to me that this is the case with Mr. Grudzien’s
slow low back improvement”.  In his testimony Dr. Major added that even
children have some degenerative changes in their spine; all people do.  It is a
matter of degree.  He could not recall seeing anyone of Mr. Grudzien’s age
without also seeing some evidence of degenerative changes in that person’s
lower spine.

[56]        
If there is a “measureable risk” that the pre-existing condition would
have impacted the plaintiff in future, it should be taken into account in
awarding damages: Hooper v. Nair, 2009 BCSC 862, at para. 61.

[57]        
There is no basis in the evidence to support a conclusion that Mr. Grudzien’s
pre-existing spinal degeneration was active, or was likely to become active,
absent the motor vehicle accident.

[58]        
However in cross-examination, Dr. Craig opined that based upon Mr. Grudzien’s
occupation and his previous weight condition, there was a 25% risk over the
course of 10 to 15 years that he would have developed knee problems.  As I
interpret this evidence, Mr. Grudzien had a measureable risk that at some
point in future he might develop knee problems of some degree.  I conclude that
this is a factor, albeit a minor one, that should be taken into account in
assessing the plaintiff’s non-pecuniary loss and loss of earning capacity in
future, and I have done so.

D.             
Non-Pecuniary Loss – Quantum

[59]        
In support of his argument that the appropriate quantum of non-pecuniary
damages is $60,000 to $70,000, counsel for Mr. Grudzien cited the
following authorities: Garcha v. Duenas, 2011 BCSC 365 ($70,000); Prempeh
v. Boisvert, 2012 BCSC 304 ($60,000); and Kerr v. Macklin, 2004 BCSC
318 ($75,000).

[60]        
The defendants contend that the appropriate award of non-pecuniary
damages is $30,000 to $40,000.  For guidance, they cite the following
authorities: Rattenbury v. Samra, 2009 BCSC 207 ($30,000); Elgood v.
Ellison, 2010 BCSC 442 ($35,000); Feng v. Vancouver (City), 2009
BCSC 439 ($35,000); and Olynyk v. Turner, 2012 BCSC 1138 ($40,000).

[61]        
I agree with counsel for the plaintiff that Feng, a case I
decided, is distinguishable.  In that case I concluded (para. 76) that the
plaintiff’s symptoms of ankylosing spondylitis were already progressing and
that the accident did not cause a substantial change to the symptoms that his
condition would have caused in any event.

[62]        
No detailed review of the authorities cited is required.  Several of the
authorities (including Feng) refer to Stapley v. Hejslet, 2006
BCCA 34, and to the common factors referred to there (para. 46) in
relation to assessment of an award of non-pecuniary damages.

[63]        
Having regard to the conclusions I have reached in relation to the
plaintiff’s condition and the findings I have made with respect to the
consequences of the accident injuries upon him, and the authorities that have
been referred to, I consider that an appropriate award of non-pecuniary loss is
$50,000.

E.              
Loss of Earning Capacity

a)              
Background

[64]        
Mr. Grudzien married Mrs. Grudzien in 1984, in their native
Poland.  They have two children who are independent adults.  The couple emigrated
from Poland to Canada in 1988.  In Poland Mr. Grudzien worked as a qualified
electrician, in his own electrical business.  After he immigrated to Canada he
found the language a barrier to working as an electrician, and so he became a
hardwood flooring installer and refinisher.  Approximately half the hardwood
flooring and installation work in the Lower Mainland is done by people of
Polish origin.  He learned the trade on the job working for others.  For the
past 15 years he has been self-employed in the hardwood flooring business.

[65]        
Mr. Grudzien explained that his hardwood flooring business has two
aspects, flooring installation, and flooring refinishing.  At the time of the
accident he had two major clients, Pro-Claim Restoration, and Renaissance
Design.  Most of the Pro-Claim work was insurance claim related.  Most of the work
was residential, both installation and refinishing.  Pro-Claim had been a
client of his for 14 or 15 years.  Renaissance was a newer client, of about two
years standing.  His unincorporated business was called Exotic Hardwood
Flooring.

[66]        
Mr. Grudzien described the work involved in installations and
refinishing of hardwood floors.  Installation work is quicker and less
exacting.  It involves installation of new hardwood flooring.  An installation
job can usually be done in a day.  Larger jobs might take two or three days. 
Refinishing a hardwood floor takes at least three days.  Refinishing requires
using a large belt sanding machine for the larger areas.  The belt sander
weighs up to 100 kilograms and is very powerful.  It takes a lot of effort to
restrain the machine.  A mistake in handling the machine can destroy a floor
almost instantly.  The sander can gouge a half-inch deep depression in the
floor within a second.  Three sandings are required: coarse, medium and fine. 
A smaller sander is used for the perimeter.  The work is done on one’s knees in
that case.  A lighter machine is also used for buffing the floor after the refinishing
coats are applied.

[67]        
Mr. Grudzien’s business involves the supply of labour only. 
Payment is made on a per square foot basis.

[68]        
Mr. Grudzien testified that the biggest problem he has is handling
the refinishing machine.

[69]        
Mr. Grudzien testified that after the accident he was not as
physically capable of doing the work and had to hire others, who were not as
competent as he was in the more exacting, precise aspects of the work.  It is
very difficult, he explained, to find good flooring refinishers.  This was
corroborated by the representative of Pro-Claim.

[70]        
Naturally enough, Mr. Grudzien did not tell his clients that he had
been injured in an accident and that he was having difficulties in doing the
work.  However, the evidence from both clients was that they noticed a drop in the
quality of Mr. Grudzien’s work.

[71]        
Both clients testified that prior to Mr. Grudzien’s injury they
relied on him, primarily, for their installation and refinishing work.  Both
have now turned to other workers, as a result of repeated quality problems.

[72]        
Mr. Grudzien testified that it is impractical to hire workers to do the
refinishing.  It is difficult to find workers who are competent.  The cost of
errors is very high.  He testified that the amount of pay does not make
subcontracting viable.

[73]        
Mr. Grudzien testified that Mrs. Grudzien is a good installer,
and that she worked with him prior to the accident.  There are no records
relating to this, and Mrs. Grudzien did not testify at the trial.

[74]        
Two days prior to the accident, Mrs. Grudzien obtained a business
licence for her own business, I.G. Hardwood Flooring.  Mr. Grudzien and Mrs. Grudzien
planned to “transfer” the flooring installation work that Mr. Grudzien was
doing for Pro-Claim to her new business.  Her business is also unincorporated. 
No financial statements for either business were produced at trial.

[75]        
Dr. Craig’s opinion was that Mr. Grudzien should be able to do
the lighter refinishing work but would likely be limited doing flooring
installation, due to the prolonged work on his knees and the heavy lifting. 
The plaintiff did not fully agree with this.  He agreed that he would be able
to do lighter aspects of the installation work, but in his view he is not
capable of doing refinishing work due to the heavy nature of the tasks
required.  Mr. Grudzien summarized by saying that he can manage flooring
installations with helpers, but that he cannot do flooring refinishing work any
longer.  As noted, Dr. Craig acknowledged that he did not get a lot of
detail about the work that the plaintiff does, and there is no report of an
occupational therapist in relation to these questions.

[76]        
I accept that the plaintiff is now limited in doing the heavier aspects
of his hardwood flooring installation work, and that he has a particular
difficulty with respect to hardwood flooring refinishing, due to the heavy
sanding machine that must be operated with great precision in relation to that
work.  Thus, I accept that the plaintiff suffered from a loss in income earning
capacity due to his accident injuries.

[77]        
On the basis of work from Pro-Claim and Renaissance that he would have performed
prior to the trial, the plaintiff argues that he would have received payment of
$69,000 from Pro-Claim and $103,000 from Renaissance, both net of HST.  He
contends that estimated overhead costs would have been 50% to 75% of these
amounts, leaving him with a pre-trial wage loss of between $43,000 and $86,000.

[78]        
The plaintiff argues that a fair future loss amount is in the range of
$30,000 per year, and that based upon an economist’s report, the future loss of
earning capacity should be assessed at $284,310 to age 60, or $375,270 to age
65.

[79]        
The defence contends that the plaintiff has not suffered a loss of
earning capacity and that no award is justified.  The defence contends that
based upon pre and post-accident income tax records, Mr. Grudzien has not
suffered a loss of earnings.  The defence argues that Mr. Grudzien is
likely to recover sufficiently from his injuries and will be able to
accommodate his condition by taking installation work or smaller refinishing
jobs, and there is no basis for an award of loss of earning capacity.

[80]        
In order to establish a claim for loss of earning capacity in the future,
a plaintiff must always prove that there is a real and substantial possibility
of a future event leading to an income loss.  If the plaintiff discharges that
burden of proof, then depending upon the facts of the case, the plaintiff may
prove the quantification of that loss of earning capacity either on an earnings
approach, or a capital asset approach.  The former approach will be more useful
when the loss is more easily measureable.  The latter approach will be more
useful when the loss is not as easily measureable: Perren v. Lalari,
2010 BCCA 140, para. 32.

b)              
Analysis

[81]        
As stated, I accept that Mr. Grudzien has lost income earning
capacity due to his inability to perform all aspects of the work that he was
previously able to do as a hardwood flooring installer and refinisher.  I also
accept that he has lost income pre-trial, and that there is a substantial
likelihood that he will continue to lose income in the future as a result of
his accident injuries.

[82]        
However, on the evidence it is difficult to assess the quantum of the
past and future loss with confidence.

[83]        
Also as noted, no financial statements were produced for Mr. Grudzien’s
business “A.M. Exotic Hardwood Floors” pre and post-accident, nor for Mrs. Grudzien’s
business, “I.G. Hardwood Floors”.

[84]        
Just two days prior to the accident, Mr. and Mrs. Grudzien
decided to “transfer” the Pro-Claim installation business to Mrs. Grudzien’s
business.  Her tax returns are in evidence, for the years 2008 through 2011. 
The tax returns show the effect of the transfer of the business to her.  Her
tax returns show the following amounts for gross business income and net
personal income:

[85]        
Mr. Grudzien’s income tax returns show the following:

[86]        
In the circumstances, in order to assess Mr. Grudzien’s loss, it is
necessary to consider the combined amounts for the tax returns of both Mr. and
Mrs. Grudzien, as best reflecting the overall business results pre and
post-accident.  The combined amounts are as follows:

[87]        
Mr. Grudzien’s net income for the five years (2005 through 2009)
pre-accident was about $37,718 per annum.  On a combined basis, the income for
the past two years (2010 and 2011) was $46,006.

[88]        
Thus, the income tax records are inconsistent with the plaintiff’s
submission of a pre-trial loss of income ranging between $43,000 and $86,000.

[89]        
The business loss records the plaintiff has chosen to present at trial
are partial and selective.  Records relating to Pro-Claim and Renaissance have
been produced, only.  As noted, no overall financial statements have been
adduced relating to Mr. Grudzien’s business or Mrs. Grudzien’s
business.

[90]        
In assessing his past loss, I take into account that the plaintiff has
not devoted all of his efforts post-accident to earning income in the hardwood
flooring business.  In June 2011 Mr. Grudzien started a business providing
transportation services to hunters in northern British Columbia.  The business
is called Tuchodi River Transportation.  Mr. Grudzien’s evidence is that
the business does not earn any money.  No statements were produced.  I received
very little detail about this business, other than the fact that Mr. Grudzien
maintains that it earns no money.  However, Mr. Grudzien has contributed
substantial assets to the business, including three all-terrain vehicles and
one jet boat, and another boat is under construction.  The amount of time and
effort Mr. Grudzien has been expending on this business is unclear on the
evidence.

[91]        
In my view, $40,000 represents a reasonable assessment of the value of Mr. Grudzien’s
loss of earning capacity prior to trial.  This represents a loss of about
$15,000 per annum, to date.

[92]        
Mr. Grudzien contended that a 20% reduction should be made with respect
to past income loss on the basis of s. 98 of the Insurance (Vehicle) Act. 
Adopting that submission, the net pre-trial income loss for Mr. Grudzien is
$32,000.

[93]        
In the circumstances of this case, the income approach to determination
of the value of lost future earning capacity is not appropriate.  I do not have
reliable evidence with which to measure the loss of earnings in future.

[94]        
However, I accept that the plaintiff has lost the ability to do the
heavy flooring refinishing work that he was formerly able to do and which is
used to earn income.  He is also limited in his ability to do flooring
installation work.  He has suffered a loss of income earning capacity which has
had and will continue to result in lost income in the future.

[95]        
Mr. Grudzien’s disability incapacities in relation to this work
will continue indefinitely.  However, there is a possibility that his condition
will improve.

[96]        
Another consideration is that Mr. Grudzien is an intelligent and
adaptable entrepreneur, who has a capacity to continue to earn income within
the scope of his physical limitations.

[97]        
A loss of $15,000 per annum to age 65 would translate actuarially into a
loss of $187,635.  I believe this overstates the loss.  It is equivalent to
approximately five years of his pre-accident average earnings from 2005 through
2009 of $37,718.

[98]        
Two-thirds of his five year income would be approximately $125,725. 
This strikes me as a reasonable amount, for the purposes of guidance under the
capital asset approach.

[99]        
In the circumstances, doing the best I can with the evidence, in my view
a fair assessment of the value of Mr. Grudzien’s loss of earning capacity
in future is $130,000.

F.              
Special Damages

[100]     The
plaintiff’s special damages which I find on the evidence to be satisfactorily
established are as follows:

[101]    
The defence took issue with the claim for the exercise equipment.  Dr. Major,
in particular, and also Dr. Craig, recommended exercise as treatment.  The
cost of the exercise machines is modest as compared with the cost of new
machines, or the cost of other exercise options such as gym fees.  The defence
did not take issue with the physiotherapy payments.

V.             
Conclusions and Summary

[102]     The
assessment of the plaintiff’s damages is as follows:

“Verhoeven
J.”