IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130430

Docket: M103137

Registry:
Vancouver

Between:

Christopher Dang

Plaintiff

And

Shu Chao,
Hsien-Lung Shih and

0746201 BC Ltd.
doing business as Kerrisdale Gas

and Clint Lawrence

Defendants

Before:
The Honourable Madam Justice Baker

Reasons for Judgment

[1]            
On August 18, 2009, a 1988 Toyota Corolla driven by the plaintiff, Mr.
Dang, was struck from the rear by a vehicle belonging to the defendant 0746201
BC Ltd., and driven by the defendant Clint Lawrence.  The defendants admit that
the collision between the Dang vehicle and the vehicle driven by Mr. Lawrence
was caused by Mr. Lawrence’s negligence.

[2]            
Mr. Dang received soft tissue injuries as a result of the collision and
he is seeking general and special damages; an award for loss of the opportunity
to earn income in future; and an award for the cost of future care.  Mr. Dang
had pleaded a past loss of income or the opportunity to earn income, but this
claim was abandoned during his counsel’s closing submissions at trial.

FACTS

[3]            
Christopher Dang was 35 years old when the accident happened and 38 at
time of trial.  He grew up in Victoria and Vancouver and graduated from high
school in Vancouver in 1991, following which he took some evening courses at
the British Columbia Institute of Technology.  He described the classes as
being generally related to the music business, and as part of his studies he
worked briefly as an “intern” at a recording studio where he was introduced to
recording engineering.  Mr. Dang holds no post-secondary certificates,
diplomas or degrees in music or any other subject.

[4]            
Mr. Dang plays electric guitar and over the years has been a member of
various bands.   He described himself as a guitarist of only average ability. 
He also writes songs, and in recent years has begun to do some, mostly unpaid,
work as a recording engineer.

[5]            
Early on, Mr. Dang was involved with a hip hop group called “Epicentre”
but that band dissolved in 1994.  In 1995, Mr. Dang started a band called
“Vicarious”.  Around that time he began dabbling in recording engineering.  In
1998, Mr. Dang left Vicarious and joined another band.

[6]            
From time to time, Mr. Dang has worked at jobs unrelated to the music
industry.  He worked as a lot attendant for Budget Rent-a-Car, washing and refuelling
rental vehicles.  He also worked as a clerk in a store.  In 1997, he washed
cars at a Toyota dealership.  In 1998, he worked as a driver delivering
automotive parts.  For most of the time since he graduated from high school,
however, Mr. Dang has pursued a career as lead guitarist in a band,
song-writer, and latterly, recording engineer.  These pursuits have not,
however, provided Mr. Dang with income.

[7]            
In all the years since he graduated from high school, Mr. Dang has
received financial support from his parents.  In 1998, Mr. Dang’s mother, who
is a physician, allowed Mr. Dang to move into a house she had purchased as a
rental property a few years earlier.  Mr. Dang was still residing in this home
at time of trial.  He testified that he is not required to pay rent.

[8]            
Until 2011, the financial support provided to Mr. Dang came in the form
of an allowance from a family trust established by his mother. Mr. Dang
testified that he believes he was receiving between $1,000 and $1,500 a month
from the family trust. The trust was dissolved in 2011, but Mr. Dang and his
mother both testified that his parents continued to provide him with money to
pay his living expenses.  Mr. Dang’s mother also testified, however, that she
was planning to sell the house that Mr. Dang was residing in at time of trial.

[9]            
Mr. Dang testified that he has never earned any money from the sale of
any song that he has composed.  He testified that he believes that his income
from recording engineering in the years 2005 to 2011 was probably about $1,500
in total.  Mr. Dang testified that since 2006, the band in which he plays lead
guitar has performed about four times a year, but were paid only what Mr. Dang
described as “beer money” for the performances.

[10]        
Derek Nordin is a vocational consultant.  He was retained by Mr. Dang’s
counsel to prepare a vocational assessment in relation to Mr. Dang.  In his
report dated January 12, 2011, Mr. Nordin stated that Mr. Dang had no
employment income of any kind from 2003 until the date of the accident on August
19, 2009 that led to this lawsuit.  According to Mr. Nordin, Mr. Dang filed
income tax returns for the years 2007, 2008 and 2009 in which he reported zero
employment income.  The only income Mr. Dang reported came from dividends paid
from the family trust.  No income tax returns were entered into evidence at
trial.

[11]        
Mr. Dang has been involved in several motor vehicle accidents that
pre-date the accident that led to this lawsuit.  In April 1998, Mr. Dang
injured his lower back in a rear-end motor vehicle accident.  According to a
report written in 2003 by Dr. Mutat, a surgeon who has twice operated on
Mr. Dang’s lower back, Mr. Dang was never pain-free after the 1998 accident.

[12]        
About two months after the first accident – around July 8, 1998 – Mr.
Dang was injured in a second rear-end collision, leading to an exacerbation of
his low back pain.  He was unable to work for six months, but was eventually
able to return to his pre-accident status with only minimal discomfort and
intermittent muscle stiffness.

[13]        
In 2002, Mr. Dang started a new band.  He referred to it as the “first
incarnation” of his current band, which is now called “AutoViolet”.  The other
members of the group – a drummer, bass guitar player and a singer – have been
replaced over time.  Mr. Dang continues to play lead guitar in AutoViolet.

[14]        
In addition to the lower back problems resulting from the two 1998 motor
vehicle accidents, Mr. Dang had neck, shoulder and “TMJ” (temporamandibular
joint) pain that pre-dated the first motor vehicle accident.  Dr. Chow is Mr.
Dang’s dentist.  According to Dr. Chow’s clinical records, Mr. Dang reported to
Dr. Chow in 1997 that he was having physiotherapy to treat neck, shoulder and
TMJ pain.

[15]        
In 2000, Mr. Dang was involved in a third motor vehicle accident.  This
accident caused back, neck and shoulder injuries.  In May 2001, Mr. Dang
re-injured his back in a fourth motor vehicle accident.

[16]        
In July 2003, Mr. Dang was unloading boxes off a truck at work and
developed moderate low back pain that worsened over the course of a week, with
pain radiating into his right leg and occasionally into his left leg.  The pain
got worse over a span of two months.  A MRI of Mr. Dang’s lumbar spine done on
August 23, 2003 revealed a L4/L5 disc herniation impinging on the right L5
nerve root and possibly the S1 nerve root.  There was a second disc bulge at
the L5/S1 level.

[17]        
Dr. Mutat, the surgeon to whom Mr. Dang was referred, recommended
surgery and Mr. Dang had a lumbar discectomy operation in September 2003,
followed by a period of rehabilitation at George Pearson Hospital.

[18]        
By November 2003, Dr. Mutat believed that Mr. Dang was recovering from
his back surgery.  He advised Mr. Dang to proceed with physiotherapy and a
“back to work program” but cautioned Mr. Dang to avoid lifting any weight in
excess of 30 pounds.

[19]        
Despite Dr. Mutat’s optimism, Mr. Dang was unable to return to work.  In
July 2004, he had a vocational rehabilitation assessment following which he
reported an exacerbation of his low back and right leg pain, with the right leg
pain radiating into his buttock, thigh and shin.

[20]        
 In 2004, Mr. Dang participated in a six week “Back to Health” rehabilitation
program through the Workers’ Compensation Board in Richmond.  Based on Mr. Dang’s
testimony and Mr. Nordin’s report, I conclude that Mr. Dang did not return to
employment following the rehabilitation program.

[21]        
Mr. Dang did join a gym and began regularly working out, sometimes as
frequently as four or five times a week.   Mr. Dang testified he focused on
strengthening his core muscles.

[22]        
Mr. Dang continued to experience considerable lower back pain and pain
radiating into his legs that was sufficiently severe that in December 2004 Mr.
Dang underwent a second discectomy surgery involving the L4/L5 discs.  By
February 2005, Mr. Dang reported that he was no longer having sharp shooting
leg pain but continued to have pain in his right leg and low back pain that
intensified with activity.

[23]        
Darlene Baggoo is Mr. Dang’s family doctor and two reports authored by
her – dated August 29, 2010, and December 13, 2011 – are in evidence.  Some of
her clinical records are also in evidence, beginning with an entry for January
5, 2004.  Dr. Baggoo’s clinical records are virtually illegible, but an entry
dated April 15, 2005 recorded that Mr. Dang was making a slow recovery from his
second surgery, despite attending physiotherapy four times a week.

[24]        
Dr. Baggoo’s records indicate that Dr. Baggoo was prescribing the anti-depressant
Effexor for Mr. Dang at least as early as January 16, 2004.  Mr. Dang testified
that the medication was prescribed for depression and that he continued to take
anti-depressant medication until about a year prior to this trial.

[25]        
In June 2005, Mr. Dang asked Dr. Baggoo to prescribe sleeping medication
for him in addition to the anti-depressant medication he was already taking. 
It appears from Dr. Baggoo’s clinical records that she did prescribe sleeping medication,
but the name of the drug cannot be deciphered from her clinical record.  Dr.
Baggoo’s records indicate Mr. Dang complained about poor or interrupted sleep
on subsequent occasions.

[26]        
In 2004 and 2005, Mr. Dang converted the basement of the home in which
he resides into a recording studio.  Mr. Dang testified that he spent
approximately $20,000 to create the basement recording studio.  He did not
testify about the source of the funds.  According to a report written by Dr.
Mutat, Mr. Dang told Dr. Mutat in June 2005 that he had started working in
“…a nightclub managerial type work”, but according to Mr. Nordin, Mr. Dang
did not report any employment income from this source, if any was earned.  Mr.
Dang did not testify that he had ever worked as a manager in a nightclub.

[27]        
 In 2005, AutoViolet’s then drummer (he is no longer with the band) sent
out a CD “demo” of the band featuring a female lead singer who is also no
longer with the band.  One of the people to whom the CD was sent was Mr. Phil
Lorito, who lives in New York City.  Mr. Lorito testified at trial that he has
worked in the music industry for more than 40 years, mostly as an agent;
although he left the industry for 15 years between 1990 and 2005 in order to
focus on raising his children.  He said that in the past (prior to 1990, I
infer) he had represented some top-selling performers including Michael Bolton,
Bob Mayo (who played in Peter Frampton’s band), and Billy Squier’s back-up
band.   He testified that when he returned to the music business in 2005
following the 15-year hiatus he found that the industry had totally changed.

[28]        
In 2005, Amy Arsenault became AutoViolet’s lead singer.  She and Mr.
Dang began dating and in November 2005 Ms. Arsenault moved in with Mr. Dang.  Mr. Dang
testified that after Ms. Arsenault joined the band, the two of them jointly
wrote most of the songs that AutoViolet performs.

[29]        
Ms. Arsenault testified that she was aware that Mr. Dang had back
problems and that he had back pain almost constantly when she first knew him. 
She said that after she and Mr. Dang began dating, they started to take their
health more seriously and began regularly going to the gym.  I infer from her
testimony that Mr. Dang had not been working out regularly before he and Ms.
Arsenault began dating.

[30]        
Ms. Arsenault testified that Mr. Dang sometimes aggravated his back pain
by exercising, but that his back did improve as he got stronger.  She testified
that Mr. Dang worked to strengthen his muscles so he could do specific
moves like “head-banging”. Head-banging is a repetitive forward and backward
head movement performed by guitar players in rock bands during performances.

[31]        
Ms. Arsenault testified that during her relationship with Mr. Dang she
learned that Mr. Dang suffers from depression and anxiety.  She said that
depression and anxiety are not unusual for musicians.

[32]        
In February 2006, Mr. Dang told Dr. Baggoo that he continued to require
sleeping pills because chronic low back pain was keeping him up at night four
or five nights a week.  Dr. Baggoo noted in her clinical records that Mr. Dang
had chronic neck and back pain.  She discussed pain control options with Mr.
Dang.

[33]        
In the summer of 2006, Mr. Lorito visited AutoViolet’s Internet website
and viewed AutoViolet performing with Ms. Arsenault as lead singer.  Mr. Lorito
was impressed with what he saw, especially with Ms. Arsenault’s performance. 
Mr. Lorito testified that Mr. Dang is a “good” guitar player, but not a
“virtuoso”.  He said that Mr. Dang would never be known as one of the great
guitar players of our time.  In his view, Mr. Dang’s main talent lies in
electronics – mixing and sampling and adding electronic tracks to the band’s
live performances.

[34]        
Although the document is not in evidence, Mr. Dang and Mr. Lorito both
testified that in 2006 AutoViolet entered into an agency contract with Mr.
Lorito with a view to re-packaging the band’s music to make it more
commercially viable.  Mr. Dang testified that the band had begun working
on a CD in 2006, beginning with laying down the drum tracks.  Mr. Dang
testified that the band did not intend to release the CD until it was of very
high quality.

[35]        
Mr. Lorito testified at trial that he has only 2 clients – AutoViolet
and Mr. Frank Carillo.  Mr. Lorito had represented Mr. Carillo from 1972 to
1990.  According to Mr. Lorito, Mr. Carillo’s career had been stagnating
between 1990 and 2005.  He contacted Mr. Lorito in 2005, at which point Mr.
Lorito decided to get back into the music business and to begin representing
Mr. Carillo again.

[36]        
In August 2006, Mr. Dang told Dr. Baggoo that he felt he could be
“burning out”.  Dr. Baggoo counselled him about managing stress.  Mr. Dang told
Dr. Baggoo he had resumed having physiotherapy.  He reported that pain in his
right leg, which he had experienced in the past, was starting to recur.

[37]        
In October 2006, Mr. Dang told Dr. Baggoo that he was still having lower
back and right leg pain.  Dr. Baggoo decided to refer Mr. Dang back to Dr.
Mutat.

[38]        
Mr. Dang saw Dr. Mutat on December 18, 2006.  According to Dr. Mutat’s
report to Dr. Baggoo, Mr. Dang told Dr. Mutat that he had been doing well until
the summer of 2005 when he started to have increasing low back pain and
stiffness, as well as pain in both legs and numbness and tingling in his right
calf and toes.  He told Dr. Mutat that despite the discomfort he had been able
to continue working as a recording engineer.   Dr. Mutat’s assessment was that
Mr. Dang’s low back and leg pain was due to the recurrent L4/L5 disc
herniation, but he did not recommend further surgery.

[39]        
Mr. Dang reported to Dr. Baggoo in January 2007 that his back pain had
“plateaued” although he was still having physiotherapy.  He reported that he
continued to have right leg pain at times, increased by certain activities like
sitting.  Mr. Dang also reported he had been having dizzy spells for a couple
of weeks.  Mr. Dang confirmed in cross-examination at trial that in the
past he has suffered from occasional vertigo.   Dr. Baggoo referred to the
vertigo in her August 29, 2010 report.  Dr. Baggoo said she believes the
vertigo is “Benign Positional Vertigo” and that it is “possible” that it is a
result of the August 19, 2009 motor vehicle accident.  I am satisfied that Dr.
Baggoo is mistaken in raising this possibility, possibly because she had failed
to recall that Mr. Dang had experienced episodes of vertigo at least two years
before the August 19, 2009 accident.

[40]        
On March 27, 2007 Mr. Dang was assessed by a neurosurgeon, Dr. Ian
Turnbull, presumably on a referral from Dr. Baggoo.  According to Dr.
Turnbull’s consultation report, Mr. Dang told Dr. Turnbull that he had almost
daily pain in his lower back which radiated into his hip on one side or the
other.  He reported that the pain was brought on by sitting; or by walking for
even 15 minutes.  He reported that if he tried to do “core exercises” the pain
flared up in his back.  Dr. Turnbull’s assessment was that the pain was
probably caused by post-surgical scar tissue that had formed in the spinal
canal.  He did not consider further surgery to be advisable as it could result
in the formation of even more scar tissue.

[41]        
Mr. Dang testified that in 2007 he began working with a trainer at his
gym, who is also a kinesiologist.   Mr. Dang testified in direct examination
that by November 2007, he was having no problems with his neck, back or his
temporomandibular joint (“TMJ”).  I am satisfied that Ms. Dang was mistaken
when he gave this testimony, and that he continued to have pain, particularly in
his lower back.

[42]        
Mr. Miles recalled Mr. Dang telling him that he had problems with his
right knee and that it might have been a torn meniscus.  Ms. Karen Winkler, an
occupational therapist retained by Mr. Dang’s counsel to prepare a cost of
future care report testified that Mr. Dang told her he had had discomfort in
his right knee for a long time before the August 19, 2009 accident.  She
observed that he could not bend his right knee as far as his left knee; that he
had less ability to apply force against his right knee, and that when he
crouched or squatted he would shift his weight over his left leg.

[43]        
In 2008, Mr. Dang discontinued training with Mr. Miles for a period of
six weeks.  Mr. Dang testified that his band was hoping to finish a CD and then
go on tour in 2009 to promote the CD.  He was worried, however, that he would
not be fit enough to tolerate touring with the band.

[44]        
On examination for discovery, Mr. Dang testified that in August 2008 his
back was in pretty good condition and he was having little pain.  I am
satisfied Mr. Dang is mistaken and that this assertion is inaccurate. 
According to Dr. Baggoo’s clinical records, Mr. Dang reported in August 2008
that a week earlier he had been running on the spot and doing squats and his
lower back became sore and he had groin and thigh pain.  He said the pain in
his legs did not radiate below the knee.

[45]        
Seven weeks later, Mr. Dang told Dr. Baggoo that his back was not
improving and the pain had started to radiate down his right leg.  He reported
sharp pains extending into his right calf and foot; and a tingling sensation
under his big toe.  Mr. Dang testified in cross-examination that he has
had numbness in his right foot since 2003.

[46]        
Mr. Dang told Dr. Baggoo in August 2008 that he had been having
chiropractic treatments and massage therapy, but both provided only temporary
relief.  He said he was not going to the gym and was worried about how his pain
was going to affect his work.  He asked for a referral for a CT scan, which Dr.
Baggoo arranged.

[47]        
Dr. Baggoo also attempted to refer Mr. Dang to a neurosurgeon in the
fall of 2008.  She made a referral to Dr. Chan, but Dr. Chan declined the
referral.  Dr. Baggoo testified that she was scrambling to find a
specialist to see Mr. Dang and even considered sending him to a
rheumatologist.  Eventually she put him on a referral list for the spine clinic
at Vancouver General Hospital, but they also declined the referral.   As a
result, she was unable to find a specialist to see Mr. Dang.

[48]        
X-rays of Mr. Dang’s spine done on August 29, 2008 indicated that his
vertebrae were normal in height and alignment, with very mild disc space
narrowing at the L4-5 and L5/S1 levels, and subtle anterior spondylosis that
had developed since the previous study done in 2003.  The radiologist also
noted slight bulging of the posterior annulus at the L3-4 level that appeared
stable.  A MRI done on September 25, 2008 indicated disc protrusion affecting
the right L5/S1 nerve root.

[49]        
Dr. Alan Richardson, the orthopaedic surgeon who conducted an independent
medical examination of Mr. Dang on behalf of the defendants in November 2011
and provided a report dated December 5, 2011, stated in his report that the
scans done in August and September 2008 indicated that there were degenerative
changes in Mr. Dang’s lumbar spine.

[50]        
In the spring of 2009, Dr. Baggoo was seeing Mr. Dang to assist him with
anxiety.  She continued to prescribe Effexor for Mr. Dang.

[51]        
Mr. Dang agreed in cross-examination that even before the accident that
is the subject of this lawsuit he sometimes experienced pain in his neck and
shoulders when he was doing a lot of work.  Mr. Dang agreed that starting in
March 2006 he had physiotherapy about once a week.  He also had massage
therapy.  In 2007, he temporarily discontinued massage therapy, but in March
2009 he returned to regular massage therapy treatments.  Notes of a treating
professional who treated Mr. Dang in March 2009 indicate that he had “general
shoulder/neck treatment”.

[52]        
Mr. Dang testified that in 2009 he was pushing himself to be ready for
an anticipated band tour.   Mr. Dang and his trainer, Mr. Miles, discussed Mr.
Dang getting a “lumbar splint” to use while performing with the band.

[53]        
In June 2009, Mr. Miles took a year-long leave of absence.  Mr. Dang did
not work with Mr. Miles again until 2010, although he talked to him by
telephone from time to time in the interim.

[54]        
In July 2009, Mr. Dang and his dentist, Dr. Chow, discussed the fact
that Mr. Dang was probably grinding his teeth and that neck and back pain
and TMJ pain were related to bruxism.  Mr. Dang testified in cross-examination
that he also had headaches when he worked long hours in the studio.

[55]        
Mr. Dang testified that in the summer of 2009 the band had only begun
recording the vocal tracks for the CD they planned to put out.  It became
obvious that the band would not be going on tour in 2009 as he had earlier
hoped.

[56]        
During Mr. Dang’s testimony, his counsel played for the court a DVD made
by Mr. Dang of AutoViolet performing a song called “Toxic” on stage on November
29, 2007 at the Red Room, which I was told is a nightclub in Vancouver. 
Counsel also played a DVD of a performance of a song called “No Tomorrow” at
The Roxy – another Vancouver nightclub – on April 3, 2008; and a third song
“Left for Dead” performed by AutoViolet at The Roxy on March 10, 2009.  Mr.
Dang is playing lead guitar in all three DVDs.  Mr. Dang testified that in 2009
AutoViolet performed once every month or two at The Roxy.  As stated earlier,
the band received nominal payment – Mr. Dang referred to it as “beer money”.

[57]        
Mr. Dang testified that during these years he did some recording
engineering for other groups – I infer this was unpaid work – and occasionally
did stints as a “DJ”.  As stated earlier, Mr. Dang did not report having
received any employment income in 2009.

[58]        
Ms. Arsenault testified that since she has been a member of AutoViolet,
the band has performed at the Buffalo Club, (a now-defunct Vancouver
nightclub); at the Roxy, the Red Room and the Backstage Lounge (all in
Vancouver); and once in each of Edmonton and Jasper, Alberta.  She said that
the band had once done a “mini-tour” to Victoria, B.C.

THE AUGUST 19, 2009 MOTOR VEHICLE COLLISION

[59]        
On August 19, 2009, Mr. Dang was driving his 1988 Toyota Corolla vehicle
northbound on East Boulevard in Vancouver.  Ms. Arsenault was seated in the
front passenger seat.  As Mr. Dang approached the intersection with 43^rd
Avenue, he saw a pedestrian on the northwest corner of the intersection,
apparently intending to cross East Boulevard.  Mr. Dang brought his vehicle to
a stop and a couple of seconds later, his vehicle was hit from behind by the
vehicle driven by Mr. Lawrence.  Mr. Dang recalled that he had his foot on the
brake; and that if his car was pushed forward by the impact, it moved only “a
bit”.

[60]        
Following the collision, Ms. Arsenault told Mr. Dang to stay in the
vehicle and she got out and exchanged information with the other driver.  She
told Mr. Dang that he should go to his doctor and they drove directly to Dr.
Baggoo’s clinic.

[61]        
The parties agreed at trial that Mr. Dang’s vehicle was “written off”
following the collision.  The cost of repairs to the defendants’ vehicle was
$1,715.58.   This accident involved three vehicles – the vehicle driven by Mr.
Lawrence had been rear-ended before he struck Mr. Dang’s vehicle.  The damage
to the vehicle that collided with the back of the vehicle driven by the
defendant, Mr. Lawrence, was estimated to cost $12,738 to repair.

POST-ACCIDENT EVENTS

[62]        
Mr. Dang testified that his whole back hurt following the accident on
August 19, 2009.  He also had pain in his right leg, his hands, jaw, and the
top of both shoulders.  Mr. Dang was most concerned, however, about his lower
back.

[63]        
According to Dr. Baggoo’s first report, Mr. Dang reported to her that
within minutes after the accident he had right upper back and right shoulder
pain, a mild headache, and very transient pain in his right arm that had gone
away by the time he saw Dr. Baggoo.  Mr. Dang was assessed with normal flexion
and extension of his cervical spine, but slightly decreased right and left
cervical rotation.  He had “tightness” in his lumbar spine.  Dr. Baggoo
recommended that Mr. Dang take over- the-counter medication as needed for pain;
ice or heat as needed; and massage therapy and physiotherapy.

[64]        
Mr. Dang had massage therapy treatments almost once a week from August
20, 2009 until December 27, 2011.  Mr. Dang testified that the treatments
alternated between a focus on his lower back; and his upper back.  He had,
however, been having massage therapy treatments from time to time for years
prior to the accident on August 19, 2009.

[65]        
Mr. Dang saw Dr. Baggoo again on August 28, 2009.  He told her he had
been going to physiotherapy (two treatments) and massage therapy.  He reported
stiffness in his lower back and discomfort in his right and left mid-back and
neck.  He was doing “very light” gym workouts as well as exercises at home.  He
told Dr. Baggoo he intended to discontinue physiotherapy because he felt
he knew the exercises and stretches he needed to do.  He was not taking any
pain medication.  His neurological examination was normal.  By this appointment,
he had recovered normal range of motion in his cervical spine.

[66]        
From the fact that Mr. Dang did not feel it necessary to take even over-the-
counter pain medication in the two weeks immediately following the accident, I
infer that the discomfort he was experiencing was relatively mild.

[67]        
When next seen on September 18, 2009, Mr. Dang told Dr. Baggoo he was
still feeling quite stiff and sore.  He was going to the gym where he used the
treadmill and elliptical machine.  He was also doing a home physiotherapy
program.  His neck pain was more episodic and was no longer constant.  It was
aggravated by sitting.  He said he had constant discomfort in his lower back
and he was tender to palpation along his lower back.

[68]        
By October 16, 2009, Mr. Dang said his mid-back was a bit better; his
neck and lower back discomfort was aggravated by sitting; he was continuing to
go to the gym and he was not using any pain medication.

[69]        
On his next visit to Dr. Baggoo on December 11, 2009, Mr. Dang reported
he had felt some improvement in his condition but continued to have pain in his
neck and middle and lower back, especially with prolonged sitting – in excess
of 45 to 60 minutes at a time.  Mr. Dang was found to have full range of motion
in his neck, but he reported tenderness on palpation of his upper back.

[70]        
For the first time following the August 19, 2009 accident, Mr. Dang told
Dr. Baggoo that he had been experiencing TMJ pain on both sides of his
face, and had seen his dentist who had recommended a mouth guard.

[71]        
Mr. Dang saw Dr. Baggoo again on January 22, 2010.  He told her his
lower back was now the same as it had been before the accident.  He had
intermittent discomfort in his head, neck and upper/mid back, most often
brought on by sitting more than 45 to 60 minutes; or with increased activity. 
He was not using any pain medication.  Dr. Baggoo recommended that Mr.
Dang return to physiotherapy.

[72]        
Mr. Dang saw Dr. Baggoo again on March 19, 2010.  He said that the pain
in his neck, upper, middle and lower back was aggravated by sitting for more
than one to two hours.  He was now going to the gym four or five days a week. 
Except for two sessions immediately following the August 19, 2009 accident, Mr.
Dang did not go to physiotherapy.  Mr. Dang told Dr. Baggoo his TMJ pain was
“good” when he wore his mouth guard.  He had no palpable tenderness in his neck
or back.

[73]        
Mr. Dang saw Dr. Baggoo again on July 5, 2010.  He said he felt his
condition had plateaued.  His neck and back discomfort were related to his
level of activity and especially aggravated by sitting.  He said that as long
as he wore his mouth guard he did not have any TMJ pain, and he was not having
any headaches.  Mr. Dang said he could walk for 40 minutes before his neck and
back became uncomfortable.   Stiffness in his neck caused him to waken during
the night.  Mr. Dang estimated that he was only able to do about 50% of the
activities at the gym that he had been doing before the August 19, 2009
accident.

[74]        
After July 5, 2010, Mr. Dang did not return to see Dr. Baggoo until
February 3, 2011, a period of 7 months.  Mr. Dang told Dr. Baggoo in February
that his back was feeling better and he was going to the gym five times a week,
but he still felt he was only at 70% of his pre-accident level.

[75]        
After the visit on February 3, 2011, Mr. Dang did not return to see Dr.
Baggoo again until November 3, 2011, a period of 9 months.  Mr. Dang’s counsel
had written to Dr. Baggoo on November 1, 2011 asking for “…an updated medical
legal letter” and I infer that Mr. Dang returned to see Dr. Baggoo on November
3 so that she could prepare the report that had been requested of her.

[76]        
Mr. Dang told Dr. Baggoo that for the past three weeks he had been doing
some recording engineering work that required him to sit for eight to 10 hours
a day and that this was aggravating his discomfort.  He said that his upper back
was quite sore and he was experiencing headaches.  He did not report having
curtailed his work.  He continued to report pain in his lower back at the same
level as prior to the August 19, 2009 accident.

[77]        
Mr. Dang had six chiropractic treatments between March and August 2010;
and seven treatments between March and September 2011.  There is no evidence
that Dr. Baggoo referred Mr. Dang for chiropractic treatment or recommended
these treatments; what part of Mr. Dang’s body was treated; or what benefit, if
any, Mr. Dang received from these treatments.

[78]        
As stated earlier, Mr. Dang did not return to physiotherapy as Dr.
Baggoo had recommended; and had only two physiotherapy treatments in 2009, one
on August 20 and the other on August 25.  Mr. Dang testified that after the
accident he continued to have regular massage therapy treatments, but that the
treatments alternated between focusing on his lower back and his upper back.

[79]        
Mr. Dang testified at trial that he now gets only the odd flare-up of
lower back pain.  He testified that sitting for long periods could cause his
upper body discomfort to flare up.  He described it as a pinching feeling from
his shoulders up to the side of his neck and headache that feels like his brain
is being squeezed.

[80]        
Mr. Dang testified that his bruxism and jaw pain increased after the
accident.  At time of trial, he was still using a mouth-guard provided by his
dentist, Dr. Chow, to prevent headaches when he is working.  He testified that
he also wears the mouth-guard at night.

[81]        
In February 2010, Mr. Lorito, as President of Lorito Management, Inc.
prepared a “Music Industry Business Plan” for AutoViolet.  The Plan envisioned
Mr. Dang working as producer of an AutoViolet CD, as well as overseeing
the “mixing process”.  Mr. Lorito would be an advisor to the “mixing team” and
act as Executive Producer.  The Plan envisioned an initial “pressing” of 3,000
CDs which would be used in radio promotion and public relations efforts and
allow for a “…reasonable initial amount of product to be shipped to our
distributors”.  By time of trial, however, the CD, begun in 2006, had not yet
been produced or released.

[82]        
Mr. Miles returned from his leave of absence in June or July 2010 and
began working with Mr. Dang at that time.  He testified that after August 2010
the two men traded services.  Mr. Miles was building a recording studio and Mr.
Dang taught him how to use it in return for Mr. Miles’ services as a trainer.

[83]        
In 2011, Mr. Dang and Ms. Arsenault ended their personal relationship
but both continued to be members of AutoViolet.  In November 2011, Ms.
Arsenault moved back to Burlington, Ontario where her mother lives.  Ms.
Arsenault did not claim that Mr. Dang’s accident injuries caused the break-up,
but she did testify that his injuries affected the frequency with which they
engaged in sexual intimacy.  She said she began sleeping in another room
because Mr. Dang was often restless during the night.  She was unhappy with Mr.
Dang’s reluctance to participate in social activities.  The fact that in
addition to working on AutoViolet’s music she was also working long hours as a
restaurant server and helping to pay for treatment for Mr. Dang out of her
salary put a strain on their relationship.  Ms. Arsenault was also injured in
the August 19, 2009 accident, although she said the injuries did not affect her
as much as Mr. Dang’s injuries affected him.  She said the settlement she
eventually received went to pay debts that she and Mr. Dang had incurred.  She
said she felt increasingly resentful about the long hours she was working as a
server to support herself and Mr. Dang and that by November 2011 she decided
that she had to move away in order to remain involved in the band.

[84]        
In February 2012, the four members of AutoViolet renewed their 2006
agency agreement with Lorito Management, Inc.  Mr. Lorito is also the President
of QSO Music, Inc., a company he incorporated in January 2012.  In February
2012, the four members of AutoViolet entered into a publishing agreement with
QSO Music, Inc.  Mr. Lorito is also the President of Neutrino Records, Inc.,
another company he incorporated in January 2012.  In February 2012, the members
of AutoViolet entered into an agreement with Neutrino Records, Inc. giving that
company the exclusive right to all of the products of their activities as
recording artists worldwide.  The latter agreement provides that the band
members will be paid a royalty equal to 50% of the “Net Profits” derived from
all sources of revenue.  The agreement contains a long list of expenses to be
deducted from gross revenue to arrive at “Net Profits”.

[85]        
By time of trial, no revenue had been earned.  Mr. Lorito testified he
was committed to investing $25,000 and his son, who owns a chain of
restaurants, was committed to investing $25,000 and that $100,000 would be sufficient
to do marketing and advertising to launch an AutoViolet CD.   Mr. Lorito
testified that at first the band would have to tour as an opening act, probably
using a van for transportation; and that they would not be able to afford to
stay at good hotels.

[86]        
Mr. Lorito testified that in his opinion, Mr. Dang is a world-class
recording engineer.

[87]        
Mr. Lorito testified that he believed that AutoViolet will be
successful, but he conceded in his testimony that there are “millions of bands
out there” and that most of them do not achieve success.  He estimated that
only 2% to 3% of musical performers earn enough through music to support
themselves.  He agreed that AutoViolet had not had any success to date, but
said that was deliberate; that the band was not ready when he first heard
them.  He said the band was a “diamond in the rough”.

[88]        
Mr. Dang testified at trial that he had recently been working five days
a week (as a recording engineer, I infer) with two clients – “Shining” and
“Slush”.   He testified that in 2011 he had invoiced Slush $10,000 for work he
had done for Slush and had been paid $4,600 but was still owed $5,400.  The $4,600
he was paid by Slush was the total income he earned in 2011.

[89]        
Mr. Dang did not testify that the injuries resulting from the August 19,
2009 motor vehicle accident had delayed production of AutoViolet’s CD or
otherwise delayed or set back the band’s development.  He testified that
AutoViolet continued to be interested in going on tour.   He was hopeful they
would go on tour in September and October 2012 and perhaps perform at some
summer and fall festivals in 2013.

[90]        
Mr. Lorito also did not testify that production of AutoViolet’s CD or
plans for a promotional tour had been adversely affected by Mr. Dang’s
injuries, but he did not appear to share Mr. Dang’s optimism that AutoViolet
would be ready to go on tour in the fall of 2012.  Mr. Lorito testified that no
tour dates had been arranged for AutoViolet because the band was not ready to
tour.  He said that the band’s CD had to be finished first.   He said that the
video to accompany the CD had not yet been “shot” and that the band was still
kicking around ideas.  He said once a video had been produced the plan was to
get it on U-Tube and then he would be in a position to begin to talk to booking
agents.  He said that the CD would initially be released in Europe.  He said
that he would need to hire people to work on Internet promotion, and also
retain independents radio promoters in each European country in which the CD
was released; and also send the CD to reviewers.

[91]        
 Mr. Dang testified that at time of trial, he was working only 25 to 45
minutes at a time on engineering, after which he starts to feel discomfort
between his shoulder blades and into his right shoulder, and needs to take a break. 
He said his neck tenses up and he gets what he described as a “weird
brain-crushing headache” at the back of his head.  He testified that how often
he gets these symptoms depends on how much work he does; so he tried to book
clients for a maximum of four hours a day – half of what he used to do.  I find
this testimony to be inconsistent, however, with what Mr. Dang told Dr. Baggoo
in 2010 and 2011.  At that time, he told her he could sit for one to two hours
before his discomfort became debilitating.

[92]        
According to the report of occupational therapist Karen Winkler, who was
retained by Mr. Dang’s counsel to perform a functional capacity evaluation in
November 2011, Mr. Dang reported that he was working between four to 10 hours a
day, averaging six to eight hours a day; and that at time of seeing her he was
working on a three-month project that required him to work six to seven days a
week.  He told Ms. Winkler that when he is working, he takes a break of five to
30 minutes duration every 30 to 60 minutes, to alleviate discomfort in his neck
and back.

[93]        
Mr. Lorito testified that since 2009 Mr. Dang has been putting in
hundreds of hours working on AutoViolet’s business.  He said that he and Mr.
Dang had exchanged thousands of e-mails and many telephone calls.  He testified
that he did not believe that Mr. Dang’s health problems would affect Mr. Dang’s
song writing at all – he saw that as “mental” activity.  He did have concerns
that Mr. Dang would find touring difficult – that he would need help with
carrying heavy equipment and would have to be careful not to re-injure
himself.  Mr. Lorito was not aware that Mr. Dang had had back problems before
the August 19, 2009 accident, however, and was not aware that Mr. Dang had
previously been advised not to carry loads in excess of 30 pounds in order to
avoid re-injuring his lower back.

[94]        
Mr. Dang’s mother, Dr. Frances Wong, testified that she is planning to
sell the house that Mr. Dang has been using as his residence and studio.  Mr.
Dang testified that he was planning to move to New York City – perhaps in May
2012 – to live and to work as a recording engineer.  He said that Mr. Lorito
and a recording engineer – “Alan” – would work with him to find a location to
set up a recording studio where he and Alan could work together.  He said his
parents had agreed to continue to provide him with some financial support. 
Mr. Lorito testified that it would be too expensive for Mr. Dang to move the
studio he has constructed in the basement of the house he lives in to another
Vancouver location; and that there is more business for recording engineers in
New York City.  Mr. Lorito testified that Mr. Dang would have to obtain a work
visa to work in New York.  He said that he thinks Mr. Dang is a “world-class”
recording engineer but that it would take some time for Mr. Dang to build up a client
base.

[95]        
Dr. Baggoo testified at trial that patients with disc protrusions like
that those of Mr. Dang are at risk for recurring injury, and that the injuries,
and the surgeries Mr. Dang has had, increase his risk of developing
arthritic changes in his spine.  She agreed that the most common cause of
bruxism is stress and that bruxism can cause headaches, tooth damage, and jaw
pain.  She agreed that she knew Mr. Dang did not report TMJ pain to her
until three months after the August 19, 2009 accident, but disagreed that the
late report made it unlikely that the jaw pain was related to the accident. 
She agreed that she did not treat Mr. Dang for jaw pain and that his dentist
was addressing that problem.  She was not aware that Mr. Dang had TMJ problems
before the August 19, 2009 accident.

[96]        
Dr. Baggoo agreed in cross-examination that Mr. Dang had been having
massage therapy for a long time and that it was not “curing” him.  She
testified that she does not believe that massage therapy should ever be the sole
form of therapy and that Mr. Dang’s priority should be active exercise and
therapy, especially exercise for his upper body.

[97]        
Mr. Miles testified that he had not been working with Mr. Dang for
several months prior to trial.  He said that if Mr. Dang came back to train
with him, he would do a fresh assessment.

THE FUNCTIONAL CAPACITY
EVALUATION

[98]        
Karen Winkler, an occupational therapist, conducted a physical capacity
evaluation of Mr. Dang on November 28, 2011.  Unfortunately, her report, dated
December 22, 2011, provides little assistance to the Court.  Ms. Winkler relied
on Dr. Baggoo’s first report but did not have access to Dr. Baggoo’s
clinical records.  Consequently she was unaware that some conditions reported
by Mr. Dang – bruxism, TMJ pain, and vertigo – pre-dated the August 19, 2009
accident.  She was also not aware of the severity of the lower back symptoms
that Mr. Dang was experiencing as late as the fall of 2008.  She was not aware,
for example, that in the fall of 2008 Mr. Dang had been sent for a CT scan and
a MRI and that Dr. Baggoo had attempted to refer him to a neurosurgeon because
he was having increased pain in his lower back and right leg.

[99]        
Ms. Winkler found that Mr. Dang has some restriction in his range of
motion in his neck (minimal and on lateral flexion to the left only); in his
trunk, especially when bending from the hips; in his hips; and in his left
knee.  He also demonstrated problems with his right knee, with decreased
strength on both flexion and extension.  Ms. Winkler also assessed Mr. Dang as
having below-average “grip strength” in both hands.

[100]     The
usefulness of Ms. Winkler’s assessment is limited by the fact that most of the
weaknesses Mr. Dang demonstrated during her assessment relate to conditions
that pre-date the August 19, 2009 accident, such as his lumbar back, hip and
leg problems.  Ms. Winkler agreed in cross-examination that she had not
attempted (and perhaps she does not consider it possible) to differentiate
between limitations that appeared to be related to the accident, and
limitations that are unrelated.   She reported, for example, problems with
bending, with both hips, with his right knee, and with hand grip strength.  The
last limitation is surprising, given the nature of the work Mr. Dang does
(playing guitar and operating electronic equipment) and his assertion that he
regularly works out at a gym.

[101]     In any
event, Ms. Winkler’s assessment included the following opinions:

–    Mr. Dang can sit for periods of up
to one hour.  He would perform best in jobs where he is able to take positional
breaks and change from sitting to standing.  He would not do well in jobs
requiring constant sitting.

–    Mr. Dang can stand for significant
periods of time, if he can periodically change his posture or position.

–    Mr. Dang has the capacity to do jobs
that require him to walk, both occasionally and frequently.

–    Mr. Dang has the capacity to do jobs
that require bending over if the bending is required infrequently,
intermittently and for short periods.

–    Mr. Dang has significant limitations
with crouching.

–    Mr. Dang has full range of motion in
both shoulders.  He was able to reach overhead for 21 successive repetitions,
on each of two occasions.  His speed of movement was fast and there was only a
slight slowing with repeat testing.  He was able to sit and complete bilateral
reaching activities on a table-top for a period in excess of an hour.

[102]     Ms.
Winkler concluded that Mr. Dang meets the strength demands, positional
tolerances, and upper limb coordination required for the occupation of audio
and video recording technician, but would need to be able to alternate sitting
and standing to manage his symptoms.  In short, Ms. Winkler’s assessment
supports the conclusion that Mr. Dang’s physical limitations do not preclude
him from work as a recording engineer.  The evidence establishes that Mr. Dang
has been working as a recording engineer in the years following the August 19,
2009 accident, although mostly doing unpaid work.

[103]     Ms.
Winkler did not assess Mr. Dang’s capacity to work as a guitarist in a band or
to “head bang” while performing.   Mr. Dang is concerned that “head banging”
while performing may cause him to experience discomfort in his neck and upper
back.  The evidence does not support a finding, however, that impairment in Mr.
Dang’s ability to “head bang” while performing will have an adverse impact on
AutoViolet’s chances of success.

CREDIBILITY

[104]    
The evidence did disclose some problems with Mr. Dang’s ability to
accurately recall and relate his pre-accident condition, and these inaccuracies
– all of which were self-serving – do cast doubt on Mr. Dang’s credibility.  In
a statement Mr. Dang gave to an insurance adjuster on August 24, 2009, and
in reference to his pre-accident lower back problems, Mr. Dang said:

I
would estimate that I had been fully recovered for about 4 years now – I
remember my last physio was in 2005 and after that I was going to the personal
trainer but not requiring any other treatment.  I have been pain-free for about
4 years now.

[105]     Mr. Dang
told vocational evaluator Derek Nordin that before the accident in 2009 he was
not having significant back pain and “…was in my best shape in years”.

[106]     All of the
statements quoted above are contradicted by reliable evidence introduced at
trial.  Mr. Dang had never “fully recovered” from the disc herniations in his
lower back.  Dr. Baggoo’s clinical records indicate Mr. Dang had chronic and
ongoing lower back pain, with periodic flare-ups of more significant pain,
including pain radiating into both legs although most often radiating into the
right leg.  Dr. Turnbull, the neurosurgeon who assessed Mr. Dang in 2007
also noted complaints of lower back pain and right leg pain.

[107]     Mr. Dang
was never “pain-free”.  In fact, Mr. Dang was experiencing so much pain in his
lower back and legs in the fall of 2008 that Dr. Baggoo sent him, at his
request, for a CT scan and a MRI.  Dr. Baggoo attempted, unsuccessfully, to
find a neurosurgeon able to see Mr. Dang for a further assessment.

[108]     Contrary
to Mr. Dang’s statement that his last physiotherapy treatment was in 2005, Mr.
Dang was having physiotherapy and massage therapy for several years after 2005. 
In September 2007, Mr. Dang talked to his physiotherapist about obtaining a
lumbar splint to be used when he was performing with his band.

[109]      In the statement
Mr. Dang gave to the insurance adjuster he also stated that he was
“…regularly involved in sports.”  Mr. Dang agreed in cross-examination that
he was not regularly involved in sports before the accident.  He said that he
did do skateboarding, but that he was careful because he did not want to fall
and reinjure his lower back.

[110]     These
discrepancies did not cause me to reject all of Mr. Dang’s testimony, and in
general I found him to be a satisfactory witness but they do indicate that his reports
and his testimony about the timing of on-set and remission of symptoms should
be carefully assessed taking into account other, reliable, evidence.

The Vocational
Evaluation

[111]     As
referenced earlier, Mr. Derek Nordin was asked to prepare a vocational
assessment in relation to Mr. Dang.  He interviewed Mr. Dang during the first
week of January 2012.  Mr. Dang told Mr. Nordin that most of his music
“knowledge” has been self-taught; that he has not been “…gainfully employed
in any form of ‘regular’ employment” since injuring his back in 2003; that he
has subsisted on money provided to him by his parents; that he was planning to
move to New York in May 2012 to work in a studio there; and that he had no
plans to return to school to study music or any other subject.  The vocational
interests tests Mr. Dang completed during Mr. Nordin’s assessment indicated,
unsurprisingly, that Mr. Dang is likely to be most interested in occupations
described as “Artistic”.

[112]     Mr. Nordin
reported that 2006 census data shows that males who worked full-time for a full
year as musicians and singers earned, on average, approximately $26,000.  He
noted, however, that he “…could not correlate that earning data with Mr.
Dang” given Mr. Dang’s history of zero earnings.  Given Mr. Dang’s desire to
continue to be involved in music, Mr. Nordin did not believe that Mr. Dang
would consider returning to school to retrain for a different occupation.

DR. RICHARDSON’S OPINION EVIDENCE

[113]     At the
request of defendants’ counsel, Mr. Dang attended an independent medical
examination by Dr. Alan Richardson, an orthopaedic surgeon on November 7, 2011
and Dr. Richardson’s December 5, 2011 report is in evidence.  Dr. Richardson
was not required to attend for cross-examination at trial.  Dr. Richardson
was given access to numerous medical records, clinical records and consultation
reports for his review.

[114]     Dr.
Richardson’s opinion is that the neck, upper back and mid-back symptoms Mr.
Dang reported to Dr. Richardson in November 2011 are the result of soft tissue
injury sustained in the August 19, 2009 accident, with “…subsequent
aggravation by his chosen activities of daily living”.  Dr. Richardson’s
opinion is that the motor vehicle accident exacerbated Mr. Dang’s pre-existing
lower back symptoms for a period of four to six months.    Dr. Richardson’s
opinion is that any impairment caused by the neck, upper back and mid-back
symptoms is minimal and that there is no increased risk that Mr. Dang will
develop arthritic changes in his neck, upper back or mid-back as a result of
the accident injuries.   Dr. Richardson’s opinion is that with persistence, Mr.
Dang should be able to continue with physical rehabilitation efforts to address
the problems with his lower back as he did before the August 19, 2009 accident.

[115]     I conclude
that the August 19, 2009 accident caused soft tissue injuries to Mr. Dang’s
neck, shoulders, upper back and middle back; and also exacerbated symptoms in
Mr. Dang’s lower back caused by previous injuries.  The exacerbation of lower
back symptoms had resolved and the symptoms had subsided to pre-accident levels
by January 2010; a duration of five months.  The neck, upper back and middle
back soft tissue injuries resulted in minor restriction of motion in the
affected areas for only a week or two and the discomfort from these injuries
was not significant enough to cause Mr. Dang to use the over-counter analgesics
recommended by his family doctor.  Mr. Dang chose to discontinue physiotherapy
treatments after only two sessions, despite his doctor’s recommendation; and
did not resume physiotherapy when Dr. Baggoo recommended he do so.

[116]     I do not
conclude that Mr. Dang’s decision to refrain from physiotherapy or from taking
pain medication constituted a failure to mitigate his damages; but rather I infer
that his symptoms were not sufficiently disagreeable or debilitating to
persuade him to follow his doctor’s recommendations.

[117]     Mr. Dang
continued to have residual symptoms of neck, upper back and middle back
symptoms when assessed by Dr. Richardson in November 2011 and at time of trial
but these were, I conclude, generally problematic only when Mr. Dang had been
engaging in extended periods of activities that put strain on the affected
areas, such as prolonged sitting while doing recording engineering.

[118]     I am not
persuaded that Mr. Dang’s problems with vertigo post-MVA are causally related
to the accident.  Mr. Dang had similar symptoms in years prior to the
accident.  Mr. Dang had increased frequency of headache for a time after the
accident but I conclude that within a few months after the accident he was not
having headaches any more frequently than he had before the accident.

[119]     I conclude
that the accident temporarily exacerbated pre-accident TMJ problems but that
Mr. Dang’s TMJ condition had resolved to its pre-accident status within six
months following the accident.  I am satisfied that the TMJ problem is a
chronic problem caused by bruxism and exacerbated by stress.

DAMAGES

SPECIAL DAMAGES

[120]     Mr. Dang
is seeking $12,825.43 for massage therapy between August 19, 2009 and January
12, 2012; chiropractic treatments during the same period; two physiotherapy
treatments in August 2009, one “yoga massage” treatment in November 2011; some
equipment purchased from Mr. Dang’s massage therapist in November 2011
described on the receipt as “Recumbent Chr” ($144 plus HST) and “Thermaphore”
($117 plus HST); and a new laptop.

[121]     I have
already noted that there is no evidence that Dr. Baggoo or any other physician
recommended that Mr. Dang have chiropractic treatment so there is no evidence that
the chiropractic treatment was medically necessary or that it related to any
injury caused by the motor vehicle accident.  There is no evidence about what
area of Mr. Dang’s body the chiropractic treatment targeted; and there is no
evidence that the chiropractic treatment was helpful.   I make no award for
chiropractic treatments.

[122]     Dr. Baggoo
did not recommend to Mr. Dang that he have massage therapy, but she testified
at trial that if he found it helpful, she would agree with Mr. Dang’s decision
to continue with massage therapy.   She agreed, however, that massage therapy
will not “cure” Mr. Dang’s soft tissue injuries.

[123]     Mr. Dang had
already been having massage therapy treatments for years prior to the August
19, 2009 accident, but he increased the frequency of his attendance after the
accident.  He testified that the ongoing therapy has focused both on his upper
body; and on the lumbar area.  Mr. Dang agreed, and Dr. Baggoo’s records
confirm that by January 22, 2010, Mr. Dang’s lumbar symptoms had returned to
their pre-accident level.

[124]     I award
Mr. Dang $4500 for massage therapy treatments during the period August 19, 2009
to February 17, 2011 and a further sum of $1,858 for one-half of the treatments
that Mr. Dang had after that date.  I am satisfied that Mr. Dang would have had
some massage therapy treatments even if the accident in August 2009 had not
happened.

[125]     I am not
persuaded that Mr. Dang’s need for a new laptop computer in November 2011 is
causally related to the August 19, 2009 accident and I make no award for the
cost of the computer.

[126]     I award
Mr. Dang the sum of $684.64 for the physiotherapy treatments, and back care
equipment he purchased.

[127]     The award
for special damages, rounded to the next $5, totals $7,045.

COST OF FUTURE CARE

[128]     Ms.
Winkler prepared a “Price Summary” as Appendix C to her Cost of Future Care
Report.  I have already commented that Ms. Winkler’s report is of little assistance
to the Court as her recommendations do not differentiate between goods and
services she perceives Mr. Dang to require because of the motor vehicle
accident soft tissue injuries; and goods and services he would have required
even if the accident had not happened.   The evidence establishes that the
exacerbation of Mr. Dang’s lower back symptoms had resolved within five months
and his current (and likely continuing) lumbar symptoms and limitations are
causally unrelated to the accident.  The evidence also establishes that Mr.
Dang had pre-existing TMJ problems attributed to bruxing that would probably
have required the use of a mouth guard in any event; that the knee problems he
has are unrelated to the motor vehicle accident; as the problem with “grip
strength”.

[129]     I accept
that Mr. Dang’s motivation to have massage therapy post-trial includes
obtaining temporary relief from discomfort in his neck, upper and mid back,
especially when he is engaging in activities that put strain on those areas;
but I also conclude that Mr. Dang would have had massage therapy in future even
if the accident had not happened.  I consider the evidence justifies a small
award for a further period of post-trial massage therapy and I award $1,000.

[130]     I am not
persuaded that there is an evidentiary basis for an award of any of the other
goods and services included in Ms. Winkler’s price summary.  In particular, I
am not persuaded that the accident injuries will impair Mr. Dang’s ability
to do housecleaning, home maintenance or yard maintenance.  If Mr. Dang does
move to New York, he will likely be residing in a small rental unit, either
alone or with room-mates, at least for the foreseeable future.  If he is unable
to do any of the activities associated with home or yard maintenance, I am
satisfied his inability results from his lumbar problems.

[131]     I award $1,000
for the cost of future care.

LOSS OF THE CAPACITY TO EARN INCOME IN FUTURE

[132]     Since the
accident, Mr. Dang has continued to work on production of AutoViolet’s CD.  In
addition, he has done some work as a recording engineer for two other musical
groups.  He has also worked with the other musicians in AutoViolet to record a
CD.  A version of the CD was entered into evidence.

[133]     Based on
the evidence before me, 2011 was the first year that Mr. Dang actually earned
income working in recording engineering.  He was doing work as a recording
engineer at time of trial.

[134]     Mr. Dang
expressed concern that the soft tissue injuries to his neck, upper and mid back
may interfere with his ability to play guitar; or impact his capacity to tour. 
There is no evidence, however, that in the two and half years after the accident
and prior to trial Mr. Dang turned down any opportunities to perform with
AutoViolet; or that he was unable to perform as a musician.  There is no
evidence that any opportunity to perform was rejected.  I have already said
that I am not persuaded that vigorous “head-banging” on the part of a lead
guitar player is an essential component of a successful rock band
performance.

[135]     Mr. Dang’s
pre-existing lumbar spine injuries had, in any event, already imposed
limitations on Mr. Dang, including limitations on his ability to sit or walk
comfortably for longer periods; or to carry weights in excess of 30 pounds. 
Mr. Dang had expressed concern to Dr. Baggoo and others about whether going on
tour with the band would prove to be too difficult, given his lumbar injuries. 

[136]     Prior to
2003, Mr. Dang had, at least for short periods of time, engaged in jobs
involving physical labour – washing cars and delivering auto parts for
example.  Mr. Dang has not attempted to do such work since the accident so
there is no evidence that his ability to do physical labour has been impaired
or adversely impacted by the accident injuries.  The vocational capacity
evaluation does not comment specifically on Mr. Dang’s capacity to return to
some of the types of short-term jobs he did in the past.  The evidence is,
however, that Mr. Dang had stopped doing this work after the work-place
accident in 2003 that led to the two disc surgeries.  Based on Mr. Dang’s own
testimony and the report of Mr. Nordin, Mr. Dang had and has no intention
of returning to casual labour in future.  He intends to continue to pursue a
career as a guitarist, songwriter and recording engineer.  I am satisfied the
accident injuries do not impair his ability to do that work.

[137]     To date of
trial, the accident injuries had had no impact on Mr. Dang’s actual earnings. 
In fact, he earned more money in 2011 as a recording engineer than he had ever
earned previously working in that capacity; and more income than he had earned
since at least 2003 working in any capacity.

[138]     The
evidence establishes that there is considerable doubt that Mr. Dang would have
earned any money as a musician even if the accident had not happened.  He has
been pursuing a career as a guitar player for the past 20 years, without,
according to the evidence, even earning more than “beer money” working as a
musician.

[139]     I have
considered the authorities provided by plaintiff’s counsel, including Brown
v. Golaiy, (1985) 26 B.C.L.R. (3d) 353 (S.C.); Parypa v. Wickware,
1999 BCCA 0088; Rosvold v. Dunlop, 2001 BCCA 1; LeTourneau v. Min,
2003 BCCA 79; Pallos v. ICBC (1995), 100 B.C.L.R. (2d) (C.A.); Romanchych
v. Vallianatos, 2001 BCCA 20; Miller v. Lawlor, 2012 BCSC 387; Jackson
v. Lai, 2007 BCSC 1023 and others.  Many of these cases dealt either with
individuals whose injuries ended the established career path they had been
following; or were very young and had not embarked on a career.  Mr. Dang is a
person with an established career path, although to date he has not been able
to earn income from his work.  Mr. Dang has been continuing to follow that
career path.  He has demonstrated no loss of income to date of trial resulting
from the accident injuries.  He intends to pursue the same career path in
future.

[140]     In Perren
v. Lalari, 2010 BCCA 140, the Court of Appeal confirmed that a plaintiff
bears the onus to prove a “real and substantial possibility of a future event
leading to an income loss” (para. 32).  Justice Garson, speaking for the Court,
also affirmed that “…an inability to perform an occupation that is not a
realistic alternative occupation is not proof of a future loss”.

[141]     In the
circumstances of this case, I am not persuaded that there is any real and
substantial possibility that the soft tissue injuries caused by the accident
impair Mr. Dang’s capacity to earn income in future.  I find he has established
no loss under this head of damages and I make no award.

NON-PECUNIARY DAMAGES

[142]     Counsel
for Mr. Dang submits that Mr. Dang should be awarded $75,000 to $100,000 for
non-pecuniary damages.  Counsel for the defendants suggests the award should be
much less, but he made no specific suggestion in his written submission about
what he considered to be an appropriate award.

[143]     Counsel
for Mr. Dang did not draw the Court’s attention to any particular authority in
reference to his submission that $75,000 to $100,000 is the range supported by
precedent.

[144]     Counsel
for the defendants referred the court to Olianka v. Spagnol, 2011 BCSC
1013.  In that case, the 53-year-old plaintiff suffered moderate soft tissue
injuries to his neck and mid back; and mild soft tissue injuries to his lower
back.  Mr. Olianka had been working for the previous nine years doing
cleaning, maintenance and repairs for a 30 unit apartment building − a
job he testified required significant physical labour.  He was off work for four
months following the accident.  Justice Blair concluded that Mr. Olianka had
been disabled by his injuries for 27 months.  He had only recently been able to
resume recreational activities he enjoyed, such as long daily walks with his
dog, salmon fishing, hunting, and riding all-terrain vehicles.  Justice Blair
award $30,000 for non-pecuniary losses.

[145]     The
plaintiff in Elgood v. Ellison, 2010 BCSC 442 was 65 years old when
struck by a vehicle three years prior to trial.  He suffered leg and shoulder
injuries, neck injuries and headaches.  These injuries resolved quite quickly
but Mr. Elgood continued to experience chronic low back pain caused by the
accident that would prevent him from doing many tasks and affected his ability
to do and enjoy recreational activities.  He was able to continue working after
the accident, but only by enduring chronic pain.  Justice Bracken awarded
$35,000 for non-pecuniary losses.

[146]     In Posch
v. Davies, the 53-year-old plaintiff suffered an aggravation of
pre-existing shoulder and neck problems, and soft tissue injuries to her right
chest wall and lower back that continued to cause pain and disability at time
of trial.  Justice Brown awarded $35,000 for non-pecuniary losses.

[147]     In Parker
v. Lemmon, 2012 BCSC 27, the 43-year-old plaintiff was in two accidents one
month apart.  She injured her neck, back and shoulders, and suffered from
headaches.  Justice Savage awarded $45,000 for non-pecuniary losses.

[148]     Mr. Dang
did not engage in a lot of recreational and social activities before the
accident.  He testified he did enjoy skateboarding, going to movies, and
sometimes tenting in a regional park in the Lower Mainland.  I accept that
after the accident Mr. Dang curtailed some of these activities, at least for a
time.  There is also the evidence, however, that Mr. Dang was concentrating on
production of AutoViolet’s CD.  Mr. Lorito testified that Mr. Dang was spending
hundreds of hours doing this work, so it is possible that he would have
curtailed other activities in any event.

[149]     Ms.
Arsenault testified that after the accident Mr. Dang was not as social as he
had been.  He did not, for example, come to the restaurant where she worked as
a server to socialize with her and her colleagues when her shift ended.  She
testified, although Mr. Dang did not, that the couple’s sex life was adversely
affected by the discomfort Mr. Dang experienced due to the accident injuries;
and that Mr. Dang was more restless during the night because of the
discomfort he was experiencing.

[150]     Mr. Dang
has been treated for many years prior to the accident for depression and
anxiety.  There is no evidence that his depression or anxiety were exacerbated
by the accident injuries.  Mr. Dang testified at trial that he had stopped
taking anti-depressant medication about a year prior to trial.

[151]     I am
satisfied that the accident injuries did cause Mr. Dang increased discomfort
when he was working as a recording engineer and sitting for prolonged periods. 
His pre-existing lumbar injuries already imposed limitations on his ability to
sit or stand for long periods; but I conclude that after August 19, 2009 – at
least for a year or so – Mr. Dang experienced neck, upper back, and mid-back
discomfort with prolonged sitting that was considerably more significant than
the very mild pre-existing symptoms of neck and upper body discomfort he had
experienced from time to time in years prior to the accident.   Although Mr.
Dang’s neck, upper back and mid-back symptoms have resolved to a considerable
degree, I consider it likely he may have flare-ups from time to time when he is
working steadily for long periods.

[152]     I award
Mr. Dang $35,000 for pain, suffering and loss of enjoyment of life.

SUMMARY OF DAMAGES

[153]     I award
Mr. Dang the following:

COSTS

[154]    
I am aware of no reason that Mr. Dang should not be awarded costs to be
paid by the defendants and assessed on Scale B.  If there are reasons that have
not been brought to my attention – pre-trial offers of settlement, for example
– counsel may make submissions in writing about costs; or arrange with the
Registry to return before me to make oral submissions.  If no submissions are
made, the award shall be costs payable to the plaintiff, on Scale B.

“W.G. Baker J. per G.D. Burnyeat J.”

________________________________

The
Honourable Madam Justice Baker