IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130507

Docket: M090906

Registry:
Vancouver

Between:

Evghenie
Chekoy Sr. (aka Cecoi Sr.)

Plaintiff

And:

Kenneth
Brandon Hall

Defendant

Before: The Honourable Mr. Justice
D.M. Masuhara

Reasons for Judgment

Introduction

[1]            
This is a personal injury case arising from a motor vehicle collision
that occurred at or near the intersection of 8^th Ave. and 20^th
St., New Westminster on September 5, 2007(the “Accident”).  The plaintiff,
Mr. Chekoy, was a passenger in a 1994 Suzuki Sidekick convertible driven
by his son.  The defendant, Kenneth Brandon Hall was the driver and owner of
the vehicle that collided with the Suzuki.  Immediately following the
collision, Mr. Hall for some reason fled the scene in his car.  His licence
plate and Audi emblem from his car were recovered by the police officer who
attended the scene.  Counsel advises that Mr. Hall reported the Accident
to ICBC the next day.  The police later attended Mr. Hall’s residence and
issued him a traffic ticket for leaving the scene of an accident.  I am advised
that the fine was paid.

[2]            
The injuries alleged to have been caused by the Accident and for which
damages are sought are:

(a)           
back strain (soft tissue injuries to the back);

(b)           
neck strain (soft tissue injuries to the neck);

(c)           
right forearm bruise;

(d)           
headaches, anxiety and insomnia due to MVA related injuries;

(e)           
abdominal wall bruise; and

(f)             
chronic cervical radiculopathy.

[3]            
The defendant admits liability but contests causation and the extent of
the injuries suffered.  The defendant takes the position that the plaintiff had
a pre-existing injury of the same nature which was symptomatic at the time of
the Accident, and that the plaintiff also suffered an injury of the same nature
subsequent to the Accident, and asks for apportionment of the different causes
of such symptomology.  The defendant also pleads that the plaintiff has failed
to mitigate in two ways:  failing to follow and adhere to a prescribed or
reasonable treatment plan; and failing to seek adequate alternative employment
opportunities or return to work in a timely fashion.

[4]            
The witnesses called in the plaintiff’s case in addition to Mr. Chekoy
were:  Dr. P. Golin, the plaintiff’s family doctor; Dr. M. Badii,
rheumatologist and spine specialist; Dr. D. Lee, chiropractor; Dr. R.
Sahjpaul, neurosurgeon; Mr. W. Kelley, vocational consultant; Mr. Evghenie
Chekoy Jr., son of the plaintiff; Mr. Dennis Gladyshkiy, friend of the
plaintiff; Mr. Alexander Cecoi, son of the plaintiff; and Ms. E.
Chekoy, the plaintiff’s wife.

[5]            
The witnesses called in the defendant’s case were:  Constable S. Schultz
of the New Westminster police and investigating officer at the Accident; and Ms. M.
Wisotzki, a physiotherapist who assessed and treated the plaintiff.

[6]            
Mr. Chekoy has limited skills in English and testified through an
interpreter.  He also indicated during the trial that his ability to read
English is limited.  I infer he also has limited ability to write English.

Background

[7]            
The plaintiff is 49 yrs old.  He emigrated from Russia to Canada in 2003
with his wife and two sons.  He is a diabetic.  Mr. Chekoy served in the
Soviet military until 1983.  He then attended a technical college to become
what he called a tuner of radio equipment.  He found work after graduating with
a communications company and then with an energy distribution company.  With
the communications company he installed stationary and mobile radio stations. 
This included raising tall and heavy antenna masts.  In the energy distribution
company, he was a manager who calculated energy consumed by customers and
valued goods submitted as payment.  He explained that payment for electricity
was often done by barter and part of his responsibilities was to determine the
value of the goods provided by customers.  He left that job in 2003 and came to
Canada.

[8]            
Mr. Chekoy has not had the best of health.  He had health problems
before he immigrated to Canada.  He likely had diabetes before he came to
Canada as he was told by his doctor there that he probably did and was
prescribed medication for his symptoms.  Both his brother and father were
diabetics.  He says that he ceased using the medications when he left for
Canada.  In January 2005, Dr. Golin diagnosed the plaintiff with type 2
diabetes.  Mr. Chekoy was also diagnosed with gastrointestinal bleeding
and peptic ulcer disease prior to coming to Canada.  In 2007, Dr. Golin
diagnosed Mr. Chekoy with gastro-esophogeal reflex disease (GERD).  Mr. Chekoy
has received treatment for chronic symptoms related to GERD since 2004.  He has
also been diagnosed with H. Pelori infection, dyspepsia and indigestion.  In
2010, tests revealed that Mr. Chekoy has minor coronary artery disease and
eschemic heart disease.  His father died of a heart attack at the age of 66
years and his brother is now deceased.

[9]            
Dr. Golin also reported Mr. Chekoy had depression and an
anxious personality prior to the Accident.

[10]        
Following the Accident, Dr. Golin referred the plaintiff to
physiotherapy.  He attended Guildford Physiotherapy for 12 sessions from
October 29, 2007 to December 14, 2007.  On February 26, 2008, Mr. Chekoy
went to CBI Physiotherapy and was put in the care of Ms. Wisotzki.

[11]        
Mr. Wisotzki recorded the plaintiff’s complaints as:

(a)           
constant left shoulder pain with symptoms radiating into his arm;

(b)           
his left shoulder also feels a bit numb;

(c)           
his pain radiates up to the left side of his neck and down his mid-back
on the left and shoulder blade area;

(d)           
he is unable to lift because of his shoulder pain;

(e)           
left neck rotation hurts his left shoulder and neck the most and bending
his neck backwards relieves his pain;

(f)             
right trunk rotation increases his mid-back pain the most and sitting
helps to release it a bit; and

(g)           
walking and standing do not interfere with either of his pains.

[12]        
Ms. Wisotzki also recorded Mr. Chekoy’s comment that he had
difficulties sleeping because of the pain, but that lying on his left side with
his arm up helps to relieve some of this pain.

[13]        
The recommended plan for Mr. Chekoy was:

that Mr. Cecoi participate fully in all aspects of the program
for up to 6 weeks… .  Before starting the 6-week program, as he has some
restrictions in his thoracic and rib mobility and some cervical joint
compression issues, it is recommended he attend for one on one physiotherapy
visits to address these issues and then start the program.  His program will
focus on cardiovascular exercises, general and specific strengthening and
stretching exercises, spine stabilization exercises, work simulation
activities, education and physiotherapy treatment as needed.  It is anticipated
that Mr. Cecoi will be ready to begin a work trial during or after
treatment.  Mr. Cecoi will be re-evaluated at the midway point to ensure
that his progress is on target, further recommendations will be made at this
point.

Recommendations:

The recommended rehabilitation program parameters are
outlined below:

·       
Anticipated duration:  One-on-one physiotherapy — 4 sessions

·       
Program:  6 weeks

·       
Frequency:  Week 1 – 6:   4 hours/day, 5 days/week

·       
# of in-clinic treatment days:  30 days

·       
Return to Work Coordination:  ~2 – 4 hours pending on whether a
gradual return to work is available.

[14]        
Mr. Chekoy attended only five of six one-on-one sessions and none
of the recommended six weeks of daily exercise sessions.  In
mid-March 2008, for personal reasons Mr. Chekoy left for Russia for
two months.  As a result, the plaintiff was discharged from physiotherapy on
March 12, 2008.  Despite Mr. Golin’s advice, he did not return to
physiotherapy.  In January 2009, on the recommendation of Dr. Golin,
the plaintiff sought out chiropractic therapy from Dr. Lee.  In total he received
91 treatments.

[15]        
The writ of summons for this action was filed February 2009.

[16]        
On November 19, 2009, Dr. Golin recorded in his notes that Mr. Chekoy
had experienced dizziness and had fallen off a chair that month.

[17]        
In about January 2010, Mr. Chekoy told Dr. Lee that he
had experienced pain when he lifted a truck tool box and that the numbness in
his left arm returned.

[18]        
After continuing complaints of heart pain, Mr. Chekoy was sent for
tests in mid-2010.  He was diagnosed with mild eschemic heart disease.

[19]        
Dr. Golin’s evidence indicates that the plaintiff for significant
periods did not manage his diabetes well by not properly taking his medication,
not exercising and poor diet.

[20]        
From November 22, 2011 to November 17, 2012, Mr. Chekoy
received 21 acupuncture treatments.

[21]        
At this point, the plaintiff complains of pain between the shoulder
blades, frequent headaches, pain in the left arm, no strength, and a lack of
feeling in two fingers on the left hand – the ring and baby fingers.

[22]        
Mr. Chekoy’s wife also has a significant health problem, irritable
bowel syndrome.  Her symptoms have been sufficiently severe that she will lose
consciousness and has required transportation to hospital by ambulance on
multiple occasions.  She also has had thyroid cancer.  Her condition
understandably causes Mr. Chekoy considerable stress and anxiety.

[23]        
The evidence indicates that prior to the Accident, in January 2005,
Dr. Golin had sent Mr. Chekoy for x-rays of his cervical spine and
neck areas.  The x-rays showed degeneration at C5, 6, and 7.  He was diagnosed
with osteoarthritis in the neck.  Mr. Chekoy agreed that he must have
complained of pain in his neck area.

[24]        
Mr. Chekoy was also involved in two other motor vehicle accidents
prior to September 2007.  One was in February 2005 and the other was
in March 2007.  He was not found at fault in either.  In the February 2005
accident Mr. Chekoy was a passenger and suffered back and shoulder
injuries.  In the 2007 accident, Mr. Chekoy was a driver and was rear-ended. 
His car was a ‘write off’ as a result of the collision.  Two days after the
accident he reported to Dr. Golin complaints of back and neck pain and
headache.  His injuries from both accidents resolved within a short period.

[25]        
In terms of Mr. Chekoy’s employment, shortly after arriving in
Canada he saw an ad for a mechanic in a Russian language newspaper.  The
company was Star West Auto.  He stated that the company rebuilt cars.  He has
never been certified as a mechanic but says his father was a mechanic in Russia
and that he learned mechanical skills watching him.  He answered the ad and was
hired as a shop helper and janitor in 2003.  His duties he said included taking
out and reinstalling engines, gear boxes and transmissions, and taking apart
car cabins and then reassembling them.  He then left and worked at Elma
Electrical Services for about one month, December 2004 to January 2005,
repairing and servicing electrical equipment.  He quit as he found working day
and night shifts too difficult.  From approximately February 2006 to
September 2006 he worked at Carter GM washing and detailing cars.  His
employment there ceased as the location was closed.

[26]        
In January 2007 he returned to Star West Auto as a subcontractor
and carried out the same work as he had in the past for them.  He was paid an
hourly wage.

[27]        
After the Accident, Mr. Chekoy attempted a return to Star West Auto
but felt unwell and did not return after one day.  The plaintiff helped at a
construction site with drywall cleanup where he earned $400.  He also worked
for his two sons doing general cleanup work at their workshop which housed
construction equipment and supplies.  He also assisted his sons in doing car repairs
on his sons’ and friends’ vehicles.  Because of his condition he says that he
can only diagnose car problems, change spark plugs, sort out wiring, and change
ignitions.

[28]        
He has also had some work assisting a friend who is a cabinet maker
install cabinets.

[29]        
At some point following the Accident Mr. Chekoy fell and suffered
bruising to his right knee.  He says that the bruising went away.

[30]        
In 2009, Mr. Chekoy applied for and obtained social assistance
income.  He also took and completed various courses for industrial
certifications.  He obtained the following certificates:

(a)           
DGS Canada Fall Protection – July 23, 2009

(b)           
WHMIS – July 27, 2009

(c)           
DGS Canada Aerial Lift/Boom Lift – July 17, 2009

(d)           
Forklift Operator Safety Course Class 3 – July 22, 2009

(e)           
Power Tools Safety Course – July 21, 2009

(f)             
Construction Safety Awareness Course – July 20, 2009

(g)           
Warehouse Safety Course – July 28, 2009

(h)           
Skid Steer Loader Operator Course – July 15, 2009

(i)             
DGS Canada Aerial Lift/Scissor Lift Course – July 16, 2009

(j)             
Forklift Operator Safety Course Class 1, 4 and 5 – July 25, 2009

(k)           
Forklift Operator Safety Course Class 2 – July 19, 2009

The documentation tendered indicates that Mr. Chekoy
received classroom training, practical hands on training operating the
equipment listed, and exams to obtain these certificates to operate and work in
an industrial setting as indicated.

[31]        
He says that he sent out his resume and got one interview but was not
hired.  He also took an English course for a short period.  However, because of
his condition he missed several classes.

[32]        
He has not earned additional income since obtaining social assistance.

[33]        
At trial, the income shown to have been earned by Mr. Chekov was as
follows:

[34]        
He is now considering whether to proceed with surgery which has been
identified as an option by Dr. Sahjpaul for his neck and arm pain.

[35]        
Recently his first grandchild was born.  She was about 8 months at the
time of trial and is starting to walk.  He spends time with his wife
babysitting this child.

[36]        
The granddaughter has brought much joy and happiness to him.

Medical Evidence

1.              
Dr. P. Golin

[37]        
Dr. Golin has been the plaintiff’s family physician since 2004 and
over the years has seen the plaintiff for a variety of health issues.  Three
medical reports by Dr. Golin were filed.  His latest is dated April 13,
2012.  In that report he opines that as a result of the Accident the plaintiff
suffers from soft tissue injuries to his neck and back, a right forearm bruise,
anxiety and insomnia, an abdominal wall bruise, and chronic radiculopathy.

[38]        
The opinion further states that:

The patient continues to suffer from pain, numbness, and
tingling in his left arm.  The MRI shows that the C6/7 foramen is markedly
narrow, likely pinching the left nerve exiting from that foramen.

It is very probable that the
motor vehicle accident also aggravated the patient’s pre-existing degenerative
changes, especially at the C6/7 level.

[39]        
It is Dr. Golin’s opinion that at present the plaintiff has:

fully recovered from his right
forearm bruise and abdominal wall bruise.  He continues to suffer from soft
tissue injuries to the back, soft tissue injuries to the neck, anxiety related to
his MVA related injuries and also from his cervical radiculopathy.

[40]        
Dr. Golin further opines that the plaintiff’s soft tissue injuries
to his neck and back will continue to improve and that he will recover over the
next two years.  He opines that the plaintiff will require ongoing therapy
including stretching and strengthening exercises.  He recommends an active
rehabilitation program and states that chiropractic therapy for another 12
months would be very beneficial.  Tylenol #3 and Ibuprofen will also be
required over the next two years on an intermittent basis.

[41]        
With respect to anxiety and insomnia, Dr. Golin opines that these
will continue over the next several years “due to many factors, a small portion
of that being due to his MVA related injuries”.  Dr. Golin states that the
insomnia and anxiety arising from the Accident is “not significant enough to
prevent him from participating in further treatment such as rehabilitation,
chiropractic therapy, exercises, and his anxiety alone is not significant enough
to prevent him from working”.  He also stated at trial that these symptoms will
improve with a return back to work which could then take care of his finances.

[42]        
Dr. Golin stated that Mr. Chekoy’s “more significant symptoms
involve his chronic cervical radiculopathy which is likely due to an
aggravation of his pre-existing degenerative changes, especially at the C6-7
level, as well as possible new disc herniation at C5/6, which is pushing on the
left anterior nerve cord and the left C6 nerve root”.

[43]        
Dr. Golin noted that Mr. Chekoy waiting to see a neurosurgeon
in regard to these symptoms.

[44]        
In regard to work, it was Dr. Golin’s view that he did not believe
that the plaintiff would be able to return to work as a “heavy body mechanic at
any time in the future”.  However, he believed that the plaintiff was fit to do
light duties, including light duty mechanical work and that he was fit to be
retrained for other types of light duty work.

2.              
Dr. Badii

[45]        
Dr. Badii was qualified as an expert in general medicine, rheumatology,
internal medicine, and spine medicine.  He provided a report dated July 23,
2010 and a supplementary report dated January 4, 2011.  Dr. Badii saw
the plaintiff on February 12, 2010.  Based on the history presented, which
included the two prior motor vehicle accidents from which he understood Mr. Chekoy’s
symptoms had resolved completely before the Accident, it was Dr. Badii’s
view that there were no significant pre-accident musculoskeletal diagnoses.  He
noted that Mr. Chekoy was free of any abdominal wall symptoms or lower
back pain and his right forearm bruising had resolved shortly after the
Accident.  He also noted that Mr. Chekoy had complaints of persistent low-grade
headache interspersed with more severe headaches after strenuous activity.  Dr. Badii
opined that these were most likely tension-type headaches and secondary to soft
tissue injuries in the neck, sustained during the Accident.

[46]        
He noted according to Mr. Chekoy that the main symptom that
continued to bother him was neck and left upper back pain.  Mr. Chekoy
said initially he was having constant numbness and tingling in the left arm and
that presently the numbness was not constant but happens frequently,
particularly after heavy lifting and strenuous activity or if he sleeps with
his left arm in certain positions.  Dr. Badii noted that the plaintiff
advised that when he elevated his left arm over his head he is able to sleep
but when he brings down the arm along his side he will have increased pain,
numbness and tingling.  Dr. Badii noted that this specific comment is usually
made by patients presenting with acute or chronic cervical radiculopathy (nerve
root irritation), which can be due to a disc herniation or spinal stenosis.

[47]        
In terms of causation, Dr. Badii opined that the Accident “was directly
responsible for subsequent symptoms of neck and upper back pain, as well as
pain, numbness and tingling in the left arm.  This opinion is based on the
temporal relationship between the accident and onset of symptoms, as well as
the medical plausibility of that accident ultimately resulting in the type of
symptoms he is now complaining of.”

[48]        
In terms of functional capacity Dr. Badii opined that:

Based on my interview and examination of Mr. Chekoy, and
taking into account Dr. Golin’s comments, in my opinion Mr. Chekoy
can be considered as having been completely disabled from work, as a result of
the injuries he sustained during the accident of September 15, 2007, until
the end of January 2008.

In my opinion, he has been partially disabled from work as of
February 2008, being able to do light duties since that date.

At present, in my opinion, he is
capable of doing certain type of work as long as it does not involve regular
lifting or carrying of anything heavier than 30 pounds, or sitting with the
head fixed in one position for more than 2 hours at a time.

[49]        
He further recommended that Dr. Chekoy have an MRI of his cervical
spine, along with thoracic outlet and sagittal thoracic spine screen.

[50]        
Dr. Badii noted that both Dr. Golin and Dr. Lee were
optimistic in their overall assessments that Mr. Chekoy would fully
recover in a finite period of time but that he was less optimistic and offered
a “rather guarded” prognosis.  He stated that “once symptoms have reached a
plateau and have remained unchanged for a period of two years there is a less
than 5% chance of any significant improvement after that.”  He noted however,
that if there existed an “obvious radiculopathy…then medical or surgical
treatments could be available that could potentially improve symptoms and
quality of life.”

[51]        
Following his report, Mr. Chekoy underwent an MRI for his cervical
spine and thoracic outlets on August 11, 2010.  Dr. Badii reviewed
the report and provided an addendum to his report which is dated January 4,
2011.

[52]        
Dr. Badii noted that the MRI findings included:

In the cervical spine there was spondylosis maximal at
C5/6 and C6/7

At C5/6 there was a moderate sized left paracentral
focal disc protrusion, contacting the left anterior cord and the left C6 nerve
root.

At C6/7 there was marked narrowing of the left neural
foramen due to an uncovertebral osteophyte, resulting in left C7 nerve root
compression.

Thoracic outlets were reported as showing no
abnormalities.

In the thoracic spine there were changes of mild to
moderate disc degeneration in the mid and lower levels, in the form of
Schmorl’s nodes, as well as focal central disc protrusions at T7/8 and T8/9.

[53]        
Given the MRI findings and the plaintiff’s clinical presentation, Dr. Badii
was of the view that the Accident “resulted in a diagnosis of chronic
cervical radiculopathy.  (The possibility of a secondary diagnosis was also
alluded to by Dr. David Lee, who used the term ‘double crush injury’)”.

[54]        
Dr. Badii added that he believed that the Accident “rendered
previously asymptomatic cervical degenerative changes symptomatic”.

[55]        
He further stated that: “In addition to aggravating of pre-existing
degenerative changes (i.e. the reported multi-level spondylosis, as well as the
left C6/7 neural foramen narrowing), I believe the MVA likely resulted in a
“new” disc herniation at C5/6 (described by the radiologist as: ‘a moderate
sized left paracentral focal disc protrusion, contacting the left anterior cord
and the left C6 nerve root’)”.

[56]        
Dr. Badii stated that cervical decompression surgery may be an
option to improve pain in the plaintiff’s neck and left arm.  In this regard,
he recommended a neurosurgical opinion to examine all possibilities.  He
cautioned that the decision to have surgery cannot be taken lightly; that there
can be serious complications associated with spinal surgery, particularly in
the neck.  He also added that “although neurological symptoms may be relieved,
the majority of patients continue to experience a certain degree of neck pain,
as well some reduction in cervical range of movement, following cervical
decompression and fusion”.

[57]        
Dr. Badii also concluded that he did not anticipate Mr. Chekoy
ever being “able to return to work as a heavy duty mechanic” as a result of the
injuries he suffered from the Accident.

3.              
Dr. R. Sahjpaul

[58]        
Dr. Sahjpaul, a neurosurgeon, saw the plaintiff on April 17,
2012.  His report is dated September 9, 2012.  From the examination, Dr. Sahjpaul
made findings consistent with left arm sensory motor deficits with weakness in
biceps and triceps and reduced sensation in the left arm and impaired
reflexes.  He found no evidence of myelopathy, i.e., spinal cord compression. 
He reviewed the August 10, 2010 MRI and formulated a treatment plan which
included the possibility of surgery.

[59]        
It was Dr. Sahjpaul’s view that the Accident, more likely than not,
caused the plaintiff’s symptoms.  In this regard, his report notes that
“cervical spondylosis, i.e., disc osteophyte complexes, foraminal stenosis,
etc, are a common finding in the general population and most of the time are
asymptomatic.  Traumatic events can render these otherwise asymptomatic changes
symptomatic and can lead to requirement for treatment (medical or surgical)”. 
He was also of the view that given the duration for which there had been a lack
of meaningful improvement that Mr. Chekoy would remain with some degree of
persistent symptomatology and that he was a candidate for surgery.

[60]        
If surgery was selected by the plaintiff, Dr. Sahjpaul stated that

the goal of the surgery would be to try to improve and
possibly relieve his left upper extremity symptoms, i.e., numbness, tingling,
weakness and pain.  It is important to recognize that such surgery will NOT
predictably relieve myofascial neck pain symptoms.  The surgery would involve a
two-level cervical discectomy and fusion at C5-6 and C6-7.  This surgery takes
approximately 90 minutes, overnight stay in hospital, and three months recovery
time before he is allowed to increase his activities.  Given his history and
given the surgical requirements, it would be my advice that he not return to
any manual labour-type job after this surgery, however there are other
vocations that he could entertain.

Even if surgery is successful, it is my opinion that Mr. Chekoy
will not be able to return manual labour work or indeed any work that requires
repetitive cervical flexion/extension manoeuvres.  In my experience, it is also
probable that Mr. Chekoy will not be able to assume any vocation that
requires prolonged desk work, as this quite often precipitates cervical spine
complaints, including myofascial injury-related complaints.  Two-level cervical
discectomy and fusion does result in a very slight reduction in cervical spine
range of motion, but typically not to the degree that is noticed by an
individual.  However, with a two-level cervical discectomy and fusion, there is
a very small but definite risk of increased adjacent level disease, i.e., at
some point in the future Mr. Chekoy may present with problems at the C4-5
or C7-T1 level that may or may not require surgical intervention.  This is a
direct result of the surgical procedure at C5-6 and C6-7.  The chance of this
occurring is very small, but not zero.

In terms of surgical risks for a
C5-6 and C6-7 disc removal and fusion procedure, the overall chance of any
serious complication is very low but not zero.  Again, it is also important to
note that the goal of the surgery is to improve or relieve his left arm
symptoms, but improvement of neck pain cannot be predicted and is typically not
experienced by most individuals.  The majority of individuals do experience
some degree of ongoing neck discomfort which is more a reflection of the
myofascial injury sustained.

[61]        
At trial, Dr. Sahjpaul stated that the manual labour limitation he
was referring to in the above passage was heavy duty labour such as a
firefighter or forestry worker.

4.              
Dr. Lee

[62]        
Dr. Lee has been the plaintiff’s treating chiropractor since
January 2009.  His report is dated November 11, 2009.  His report
stated the following:

Diagnosis:

Post traumatic joint dysfunction of the cervical spine that
produces brachial neuralgia of the left arm.

He may also have a ‘double crush’ syndrome involving the
scalene or pectoralis minor muscles contractures.

A subluxation of the 3^rd and 4^th rib
from the vertebrae on the left side may contribute to muscle spasm, neck and
arm pain.

…

Prognosis

The overall effect of the injury on this patient has been
severe.  For the last two years he has been in constant pain, experienced
muscle weakness, and severe headaches.  He has also suffered from lack of
sleep.  He was only able to sleep with his left arm above his head, and would
wake frequently.

Mr. Chekoy is still suffering with some degree of
disability and pain:  headaches, thoracic pain, neck pain, and poor sleep due
to pain.

His last visual analogue scale (pain severity scale) was
four, (down from eight).  He has made slow but steady progress but may be left
with some disability.  Physically he may not return to his pre-accident status
and he may have to modify his lifestyle around his injury.

Lack of sleep and strength in his neck and back may be an on
going problem.  The probability of re-injury is greater in this condition and
he is likely to need on going chiropractic or physiotherapy to reach his
maximum response to treatment.

He still has pain but his
condition is gradually improving.  He will likely need another year of
chiropractic care with diminishing frequency and a lot of active care to reach
his optimum improvement.

[63]        
Dr. Lee testified that between the date of his report and his
February 1, 2010 appointment with Mr. Chekoy, there has been no
complaint of numbness or tingling.

[64]        
As at trial the plaintiff had received approximately 91 chiropractic
treatment.

[65]        
Dr. Lee acknowledged the delay of two years in Mr. Chekoy
seeking treatment has contributed to the chronicity of his pain.  He stated
that this could also apply to a delay in returning for physiotherapy treatment of
six or nine months.

5.              
Other

[66]        
I would note that no functional evaluation report was prepared for the
plaintiff.

[67]        
Though the plaintiff attended an independent medical examination
requested by the defence.  The defence did not adduce any medical evidence
challenging the plaintiff’s medical evidence.  Mr. Gertsoyg produced a
letter which stated that his client would attend an independent medical exam
requested by the defence in exchange for a copy of the resulting report.  Ms. Tonge
wrote back agreeing to do so.  For some reason, a copy was not provided to Mr. Gertsoyg. 
During the course of the trial, Ms. Tonge was requested by Mr. Gertsoyg
to produce the report.  Ms. Tonge refused and when asked by Mr. Gertsoyg
in court to provide the report she stated that she did not have with her.  She
did not offer to get and provide it.

Economic Evidence

[68]        
Mr. Kelley, the economic witness for the plaintiff, prepared a
report dated August 20, 2012 which provided estimates of the plaintiff’s
past and future earning losses.

[69]        
In terms of background, he stated that Mr. Chekoy was trained and
experienced in work as an automotive electrical mechanic and a servicer of
electronic appliances in Balti, Moldova.  He stated that upon arrival in Canada
the plaintiff succeeded in entering the field of automotive mechanics and
service (which he had done in the Army).  He was of the view that the plaintiff
was “quite steadily employed from his arrival in Canada up to the car crash of
September 15, 2007”.  Based on what he was told Mr. Kelley was of the
view that Mr. Chekoy had steady employment and physical capacity to do the
work of an automotive mechanic, which requires working from a full range of
body positions, extensive use of arms and hands, and strength to frequently
exert force or lift up to 20 kilograms.

[70]        
Mr. Kelley was of the view that based on the Mr. Chekoy’s
actual performance in Canada, his limited fluency in English clearly was not
preventing him from being employed, but undoubtedly was slowing his progress in
finding jobs that would advance his career faster.

[71]        
Mr. Kelley in considering the work history and medical opinions
related to Mr. Chekoy was of the view that Mr. Chekoy “has lost
significant annual person earned income due to this injuries from the September
15, 2007, [sic] with consequent time fully and then partially disabled from all
work.  He continues to be partially disabled and limited to light work”.

[72]        
Mr. Kelley’s table of lost earnings assumed that Mr. Chekoy
would have been able to work as an automotive mechanic.  This occupation
includes both licenced/certified and non-licenced mechanics.  He provided high,
medium, and low ranges of earnings for the position.  Against this he assumed
that as a result of Mr. Chekoy’s injuries he would only be able to work
50% of the time at a minimum wage level.  Deducting the latter earnings from
the earnings he estimated for a mechanic, the following present value of lost
earnings were identified:

[73]        
Mr. Gertsoyg in his closing argument submitted the reasonable range
of loss was in the range of $200,000 to $350,000.

Findings

[74]        
Credibility is the first matter which I will address.  This was the
first topic raised by defence counsel in her closing argument.

[75]        
There were reliability concerns with testimony of the plaintiff.  Mr. Chekoy’s
memory revealed weakness.  There were instances of exaggeration.  They included
his recounting at trial that the car he was travelling in spun around 5, 6, 7
times on impact and that at his discovery he stated that the police had counted
the tire marks on the road to support this.  However, he also stated that he
had not spoken to the police and that he did not recall how many times the car
had spun around.  I note that Constable Schultz testified that he did not
observe any markings on the road and that he would have noted them if there had
been.

[76]        
At trial Mr. Chekoy indicated that he was paid on a monthly basis
to, in my view, create the sense that his earnings were greater.  However, the
pay documents indicate that he was paid at an hourly rate.  He also exaggerated
to ICBC that he earned $12 to $15/ hour.  He also indicated that he worked 50
hours a week five days a week.  He conceded these things were exaggerations. 
He actually had been paid approximately in the range of $10.69 to $10.85 an
hour.

[77]        
Mr. Chekoy acknowledged that he had indicated to his
physiotherapist that his job demands required him to lift up to 100 lbs from
his waist to his shoulders and on average 60 lbs.  He also said the same for
lifting from the floor to his waist.  He conceded at trial that if there was
any such lifting it would be with the help of lifting equipment and other
workers.

[78]        
In an application for disability benefits to the Ministry of Social
Development and Housing he declared that he had a brain injury.  At trial he
stated that he was mistaken and had been told by Dr. Golin his symptoms
were due to his depression.  I note that Dr. Golin also filled out
portions of the application.  There has never been a diagnosis of brain injury. 
Mr. Chekoy in the same application stated that as a result of the Accident
he had “partial deafness” and a “general tic”.  This was not supported by the
medical evidence.  He also stated that he had difficulties preparing meals,
cleaning, laundry and shopping.  At trial however, he stated that these
activities were the responsibilities of his wife.

[79]        
He also indicated in direct examination that he enjoyed outdoor
activities but agreed that this was his first mention of this.  He also spoke
of a social life in direct examination but he agreed that in his discovery he
stated that he and his wife did not have much of a social life due to both his
and her health condition.

[80]        
He also stated in direct examination that he attended an English course
for one to one and a half years.  In cross examination he acknowledged that he
had only attend from September to December 2009 and had stopped because of
his health concerns.

[81]        
He also stated that he had not suffered injuries from the February 2005
motor vehicle accident yet Dr. Golin advised that Mr. Chekoy had
registered complaints of injury to him.

[82]        
He also indicated at trial that he had only been diagnosed with diabetes
after his arrival in Canada.  However, in cross examination it became clear, in
my view, that he had been advised prior to arriving in Canada that he had
diabetes and been prescribed medication for elevated blood sugar levels.

[83]        
It would have been helpful if Mr. Chekoy’s past employer was called
as a witness as indicated in the plaintiff’s opening.

[84]        
The cumulative effect of the foregoing, including other instances where
it was apparent that his testimony varied from prior statements which indicated
a weakness in his recall, lessens the weight that I can attribute to the
evidence of Mr. Chekoy.  I have in this taken account of the plaintiff’s
submission noting Mr. Chekoy’s actions in past accidents where he did not
stop working; as well as, the fact that he did not seek welfare when he came to
Canada – rather, he sought out work and found a job.

[85]        
In any event, the medical opinions all support objectively the fact that
Mr. Chekoy has symptoms from cervical radiculopathy.  As noted earlier the
defence did not tender any medical evidence though it obtained an independent
medical examination and report of the plaintiff.  The failure of defence
counsel to produce the medical report which counsel had agreed to provide to
plaintiff’s counsel, without an adequate explanation, allows for an adverse
inference to be drawn in this regard.  The defence’s theory that the
plaintiff’s neurologic problems relate to physiotherapy treatments, chiropractic
treatments, or from the plaintiff lifting a tool box on the back of a pickup has
not been established; I note Dr. Golin’s did not accept that theory.  While
the defence raised the question of the delay in symptoms, I accept the medical
evidence that there is considerable variability in symptom onset.

[86]        
On balancing the totality of the evidence including the failure of the
defence to produce its independent medical report, I find that the Accident is
the cause of the plaintiff’s cervical radiculopathy and not from the natural
progression of the plaintiff’s pre-existing degenerative disk disease,
subsequent treatments, or other events.

[87]        
In terms of his forearm bruise and abdominal wall bruises and headaches,
these injuries resolved in a short period of time following the Accident.  In
terms of his soft tissue injuries to his neck and back, I find based on medical
evidence that these injuries have continued but should resolve in about two
years as Dr. Golin opined.  The more recent complaints of headaches,
anxiety, insomnia and depression are in my view unrelated to the Accident.  In
regard to the plaintiff’s cervical radiculopathy, I find that the plaintiff
experiences pain weakness, tingling and numbness in his left arm.

[88]        
I accept the prognosis that Mr. Chekoy will not be able to do heavy
duty mechanical work; work which requires repetitive cervical flexion/extension
manoeuvres including prolonged desk work where his head will have to remain
fixed for extended periods.  However, given my earlier mentioned concerns with
the plaintiff’s reliability and his activities post-Accident, which include his
work at a construction site, his auto repair and janitorial-like work at his
son’s workshop, his ability to attend for industrial training courses and
certification to operate industrial equipment, and the employment which he
stated that he had sought to obtain, it is my view that Mr. Chekoy is not
as severely disabled as he says and that he is able to work regularly in the
light duty category.

[89]        
I now turn to the various heads of damage.

General Damages

[90]        
A non-exhaustive list of common factors to consider is set out in the
often referenced case of Stapley v Hejslet, 2006 BCCA 34:

(a)           
age of the plaintiff;

(b)           
nature of the injury;

(c)           
severity and duration of pain;

(d)           
disability;

(e)           
emotional suffering;

(f)             
loss or impairment of life;

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

(h)           
impairment of physical and mental abilities;

(i)             
loss of lifestyle; and

(j)             
the plaintiff’s stoicism (as a factor that should not, generally speaking,
penalize the plaintiff).

[91]        
The plaintiff seeks non-pecuniary damages in the range of $75,000 to
$120,000.  The plaintiff has submitted the following cases as a guide in
supporting this range in the assessment of non-pecuniary damages: Switzer
v. Buchi, [1998] B.C.J. No. 1904 (S.C.); Freeland-Clayton v. Murphy,
[1997] B.C.J. No. 1705 (S.C.); Liu v. Hansen, [1996] B.C.J. No. 591
(S.C.); Fletcher v. Meyer, [1993] B.C.J. No. 508 (S.C.); Mirisklavos
v. Manhas, [1996] B.C.J. No. 2038 (S.C.); Gill v. Probert, [1999]
B.C.J. No. 2436 (S.C.); Coles v. Spriggs (1998), 61 B.C.L.R. (3d)
228 (C.A.).  Mr. Gertsoyg notes that these cases were all decided in the
1990’s and that the effects of inflation should be considered on those awards.

[92]        
The defendant submits that the range of damages should be in the range
of $45,000 to $60,000.  The supporting cases are: Brechin v. Pickering,
2012 BCSC 1300; Coutaskis v. Lean, 2012 BCSC 970; Niitamo v. I.C.B.C.,
2003 BCSC 608; Zawislak v. Karbovanec, 2012 BCSC 666; and Zigawe
v. Rance, 2009 BCSC 1816.

[93]        
As previously mentioned, Mr. Chekoy’s health prior to the Accident
was not good.  He had diabetes, chronic GERD symptoms, a peptic ulcer, general anxiety,
and depression, all of which negatively affected his quality of life.  Additionally,
since the Accident he has been diagnosed with eschemic heart disease.  Dr. Golin
advised that diabetes is a serious life threatening disease which can cause
complications to the heart, kidneys, eyes and nerves.  Persons with the disease
also experience depression.  His recreational and social life had been limited by
his pre-Accident condition as well as by his wife’s health condition which is
ongoing.  He experienced anxiety and insomnia largely from factors unrelated to
the Accident.  In terms of home activities, Mr. Chekoy testified that he
was not responsible for housekeeping duties such as cleaning and cooking.  He
stated that this was the responsibility of women.  So, it appears that his
injuries did not affect housekeeping.  Emotionally, he agreed that he is
positive as a result of the birth of his first grandchild.

[94]        
As already mentioned I unfortunately cannot place as much weight on Mr. Chekoy’s
testimony as to the impact of his injuries from the Accident on the quality of
his life.

[95]        
The cases provided by the parties were helpful, though the high value
cases of the plaintiff related to more significant injuries than in the
instant.  The plaintiffs in some of the cases also had better health
pre-accident and were more active than in the instant case.  I note however that
the plaintiff’s cases were awards made many years ago.  Some of the defence
cases are distinguishable on the bases such as the plaintiff’s age and nature
of injuries.  Each case is unique and decided on its specific details.  My
assessment of non-pecuniary damages for Mr. Chekoy is $75,000.

Special Damages

[96]        
At the commencement of trial, the parties advised that they had agreed
on the plaintiff’s special damages in the amount of $8,750.  As a result, there
will be an order to this effect.

Cost of Future Care

[97]        
The cost of future care is a pecuniary claim for the amount which may
reasonably be expected to be expended in putting the injured party in the
position he would have been in if he had not sustained the injury: Andrews
v. Grand & Toy Alberta Ltd. (1978), 83 D.L.R. (3d) 452 at 462.

[98]        
The award is “based on what is reasonably necessary on the medical
evidence to promote the mental and physical health of the plaintiff”: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (B.C.S.C.) and adopted in Aberdeen
v. Zanatta, 2008 BCCA 420 at para. 41.

[99]        
There must be some evidentiary link drawn between the physician’s
assessment of pain, disability, and recommended treatment and the care
recommended by a qualified health care professional: Aberdeen at
paras. 43 and 63.

[100]     In
assessing damages under this head, it is necessary to analyse each item sought
by the plaintiff with respect to whether there is “some evidentiary link
between the physician’s assessment of pain, disability and recommended
treatment and the care recommended by a qualified health professional”: Gignac
v. Insurance Corporation of British Columbia, 2012 BCCA 351 at para. 32.

[101]     It may
also be appropriate to adjust an award for contingencies both positive and
negative.

[102]    
The plaintiff seeks damages under this head of $22,984.  This figure is
comprised of the following:

[103]     In terms medications,
Dr. Golin’s recommends the intermittent use of Tylenol #3 and Ibuprofen
over the next two years.

[104]     The
defendant is willing to concede a modest claim under this head which includes
physiotherapy and an active exercise or other conservative treatment as
recommended.  The defendant points to the testimony of Ms. Wisotzki, who advised
that physiotherapists can obtain certification in acupuncture and provide it in
therapy.  The defence submits that Dr. Golin’s prognosis that the
plaintiff’s soft tissue complaints will likely resolve within the next two
years also should be taken into account.  It is also submitted that there is no
evidence from any expert that the plaintiff will require treatment until he is
65 years old.  On this point, I note the evidence of Dr. Badii to the
contrary.  The defence also points to evidence of the plaintiff’s past history
of choosing not to take medications or attend therapy for extended periods and
the deleterious effects for this.

[105]     It is the
position of the defence that an assessment under this head of $2,000 to $4,000
is appropriate.

[106]     In my
view, acupuncture can be obtained as part of physiotherapy treatment.  Further,
while Dr. Badii’s report recommends 6-12 annual physiotherapy treatments
to the age of retirement, if he has managed to return to work in any capacity, Dr. Golin’s
opinion is that the plaintiff’s soft tissue injuries will resolve fully within
two years.  His recommendation for physiotherapy, active rehabilitation as well
as medications relate to this two-year period.  In considering the foregoing as
well as the positive and negative contingencies, I find on the evidence that
such treatments should extend for the next six years.

[107]     As a
result, I assess damages under this head as $10,000.

Loss of Past Income

[108]     I accept
the medical evidence that Mr. Chekoy was unable to work from the date of
the Accident to the end of January 2008; and was partially disabled since;
which I took as meaning that Mr. Chekoy could do light duty work.  This in
Dr. Badii’s opinion means that the plaintiff was capable of doing work “as
long as it does not involve regular lifting or carrying anything heavier than
30 pounds, or sitting with his head fixed in one position for more than two
hours at a time”.  I accept the plaintiff’s submission that his lack of English
language skills and trade skills certification in Canada is a disadvantage. 
However, I do not accept that Mr. Chekoy is precluded from doing all
manual labour given the evidence of his activities post-Accident such as
performing janitorial-like work.  Mr. Kelley’s report on past loss of
wages is too pessimistic and in my view is not supported by the evidence.  Mr. Chekoy
was employable and could work albeit at a lower level than what he was able to
pre-Accident.

[109]     The
defence is agreeable to paying the full past wage loss for the 4½ months that Mr. Badii
opined that the plaintiff was fully disabled.  The amount is in the range of
$4,500 to $5,175 based on the plaintiff’s pay stubs at Star West Auto.  The
defence is not however prepared to compensate the plaintiff for the time he
spent in Russia, which I find was from mid-March to the end of April 2008. 
I agree with that submission.  The defendant is in total prepared to consider
an additional $12,000 to $15,000 towards past wage loss.  I assess loss under
this head at $15,000.

Loss of Future Earning Capacity

[110]    
In Moore v. Cabral, 2006 BCSC 920, McKenzie J. (as she
then was) provided a useful summary of the approach to assessing damages under
this head as follows:

[68]      In Pallos, Finch J.A. for the court, confirmed
that the plaintiff must prove that the future loss is a real possibility, and
that there is a reasonable chance such loss will occur, but he also added that
a consideration of the issue should not be limited to this test and added the
following at [paragraph] 29:

The plaintiff’s claim in this case, properly considered, is
that he has a permanent injury, and permanent pain, which limit him in his
capacity to perform certain activities and which, therefore, impair his income
earning capacity.  The loss of capacity has been suffered even though he is
still employed by his pre-accident employer, and may continue to be so employed
indefinitely.

[69]      Finch J.A. also noted at [paragraph] 43, that
various actuarial or arithmetic approaches may be taken in assessing an award
for loss of earning capacity, all of which are arbitrary and ultimately, the
duty of the court is to make a "fair assessment of damages."

[70]      Furthermore, Huddart J.A.
provided a useful review of the principles relating to an award for loss of
earning capacity in Rosvold v. Dunlop at [paragraph] 8-12, which were
subsequently applied in Paller at [paragraph] 50.  Those principles can be
summarized as follows:

1.   The plaintiff is entitled to
be put into the position he would have been in but for the accident so far as
money can do that.

2.   Where a plaintiff’s permanent
injury limits him in his capacity to perform certain activities and
consequently impairs his income earning capacity, he is entitled to
compensation.  What is being compensated is not lost projected future earnings
but the loss or impairment of earning capacity as a capital asset.  In some
cases, projections from past earnings may be a useful factor to consider in
valuing the loss but past earnings are not the only factor to consider.

3.   The standard of proof to be
applied when evaluating hypothetical events that may affect an award is simple
probability, not the balance of probabilities.  Possibilities and
probabilities, chances, opportunities, and risks must all be considered, so
long as they are a real and substantial possibility and not mere speculation.  These
possibilities are to be given weight according to the percentage chance they
would have happened or will happen.

4.   The trial judge’s task is to
assess the loss on a judgmental basis, taking into consideration all the
relevant factors arising from the evidence.

5.   Once impairment of a
plaintiff’s earning capacity as a capital asset has been established, that
impairment must be valued.  The valuation may involve a comparison of the
likely future of the plaintiff if the accident had not happened with the
plaintiff’s likely future after the accident has happened.  As a starting
point, a trial judge may determine the present value of the difference between
the amounts earned under those two scenarios.  But if this is done, it is not
to be the end of the inquiry, the overall fairness and reasonableness of the
award must be considered taking into account all the evidence.

6.   Even if a plaintiff is able
to earn the same amount of income from alternative employment, he would still
be entitled to compensation for loss if occupations previously available were
closed to him.

[71]      Finally, in
considering the relevant factors, the case law has consistently applied the
factors set out in Brown v. Golaiy, being whether:

1.   the plaintiff has been
rendered less capable overall from earning income from all types of employment;

2.   the plaintiff is less
marketable or attractive as an employee to potential employers;

3.   the plaintiff has lost the
ability to take advantage of all job opportunities which might otherwise have
been open to him, had he not been injured; and,

4.   the plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market.

[111]     The
plaintiff did not seek a functional capacity evaluation which could have
provided better evidence as to the abilities and limitations of Mr. Chekoy.

[112]     The
plaintiff submits that damages under this head should fall within the range of
$200,000 to $350,000.  The plaintiff handed up the following cases as support
for his position: Switzer v. Buchi; Freeland-Clayton v. Murphy; Liu
v. Hanson; Fletcher v Meyer; Mirisklavos v. Manhas; Gill
v. Probert; and Moukhine v. Collins, 2012 BCSC 118.

[113]     The
plaintiff submits that regardless of the approach to assessing loss under this
head the plaintiff’s remaining residual earning capacity is a fraction of the
plaintiff’s pre-Accident earning capacity.  The plaintiff in final argument
suggested remaining capacity was no more than one-half to one-quarter.

[114]     The
defendant submits that an appropriate loss of capital asset assessment, as done
in Niitamo, is an award of two years’ pre-Accident salary.  Based on the
income evidence, the award would then be in the range of $30,000 to $40,000.  The
defence referred to the following cases in support of its position: Rosvold
v. Dunlop, 2001 BCCA 1 and Perren v. Lalari, 2010 BCCA 140. 
It is submitted that rather than rely upon the hypothetical loss of earnings
approach that it is more appropriate to step back and consider other factors at
play in this case which may lend to a more appropriate assessment.  In this
regard, the defendant submits that while the plaintiff has been rendered less
capable overall from earning income from medium to heavy types of employment,
he is also less marketable or attractive for factors unrelated to the Accident,
which includes his lack of fluency in English and potentially his other negative
health conditions.  The defence points out that the plaintiff’s reason for
being on social assistance is multi-factorial.  The defendant disputes the
claim that the plaintiff is unable to do sedentary work.  The defence submits
that that there was limited evidence with regard to very limited circumstances
of sedentary work, that the experts agreed that adjustments can be made by both
the plaintiff and any potential employer.  The defendant says common sense
supports this premise, regardless of whether a person is already employed at
the time or not.

[115]     While I
find that Mr. Chekoy has suffered a loss of a capital asset as a result of
the Accident; the loss is not as great as has been argued.  As mentioned Mr. Chekoy
has several health issues which either pre-existed the Accident or is unrelated
to it.  As well, he has a significant lack of proficiency in English and is not
certified as an automechanic in Canada.  His employment in Canada has been at
the minimum wage or low end of the wage scale.  That Mr. Chekoy was able
to attend and obtain certificates and tickets from several industrial courses
that included in class, hands on training, and exams, indicates in  my view
that Mr. Chekoy was able to apply himself both mentally and physically for
work, not just sedentary work, albeit at a lesser level than pre-Accident.

[116]     In
considering the loss of capacity, the real and substantial possibility approach
is to be applied.  In this regard, my view is that the report of Mr. Kelley
is too pessimistic in regard to Mr. Chekoy working only half-time in the
future and that he would be confined to minimum wage type jobs.  His holding
static the projected income of Mr. Chekoy under the injured high income scenario
is not persuasive.  I also take into consideration both positive and negative
contingencies including the prospect that the surgery proposed for Mr. Chekoy
could improve his condition, permitting him to do more, though I recognize the
comment of Dr. Sahjpaul that there can be ongoing difficulties.  I also
have taken into consideration the complications from the plaintiff’s
pre-Accident health problems which are ongoing and significant.  In assessing
damages and stepping back to look overall reasonableness and fairness to the
parties, I award damages for loss of future income earning capacity of $170,000.

Mitigation

[117]     The
defendant submits that the plaintiff did not take reasonable steps to mitigate
his pecuniary and non-pecuniary damages.  The defendants says that the
plaintiff’s refusal for treatment and lack of effort to find alternative
employment evidence the lack of reasonable steps.

[118]     The defendant
submits that based on the evidence and in particular, the opinions of the plaintiff’s
own medical experts, the effects of the plaintiff’s injuries, most particularly
his soft tissue injuries, would have been reduced and improved had he followed
his doctor’s advice and attended therapy upon his return from Russia in 2008.  There
is no doubt that Dr. Golin expressed to him the importance of therapy and
an active exercise program in managing his symptoms from the Accident.

[119]     I note Dr. Lee
concurred in the view that the failure to continue with a recommended program
of physiotherapy or chiropractic treatment would negatively affect the
resolution of chronicity of pain.

[120]     He did not
adhere to a regular exercise program which Dr. Golin specifically
addressed as problematic to his increase in diabetic symptoms.  The defendant
submits that the plaintiff’s own evidence that when his diabetes is
well-managed that he feels better overall is telling.  It was during the period
when he was not receiving any therapy, not doing exercises, not taking
medications that he “felt bad” and yet did virtually nothing for 10½ months to
improve.

[121]     Evidence
from Dr. Golin, Dr. Lee and Dr. Badii is all consistent:  the plaintiff’s
complaints with regard to his soft tissue injuries may well have been improved
had he followed his doctor’s advice.  In the words of Dr. Lee, this
failure to attend therapy likely had a deleterious effect on the chronicity of
the pain from his soft tissue injuries.

[122]     The
defendant states that the plaintiff further failed to mitigate his damages by
failing to return to work, in any capacity, after January 2008.

[123]     It is
submitted that the plaintiff’s professed desire to get back to work is
inconsistent with the evidence on a number of grounds:  that the plaintiff’s
evidence on subsequent job applications is jumbled and confusing; his failure
to apply for any further jobs beyond 2009 as confirmed by his wife; beyond very
few applications done following his retraining through the programs offered
with Social Assistance, the plaintiff has not sought employment in order to
mitigate his economic loss.

[124]     It is
further submitted that the plaintiff’s lack of effort to improve his English
skills, which is obviously unrelated to the Accident also hampered his ability
to work in Canada.  The defence noted Mr. Kelley’s opinion that the
plaintiff’s need to become fluent in English is all the more important now in
order to further expand his employment horizons.  Having made no effort to take
ESL classes since 2009, it is submitted that the plaintiff has acted
unreasonably and as a result, failed to mitigate his economic losses.

[125]     The
defence submitted a 15%-20% reduction in damages was in order.

[126]     In
deciding whether the plaintiff took reasonable steps, the plaintiff is not held
to a high standard of conduct.  It is for the defence to establish that the
defendant did not act reasonably.  I accept the plaintiff’s submission that the
physiotherapy treatments had not recognized the plaintiff’s disc herniation or
the cervical radiculopathy.  Ms. Wisotzki testified that had this been
known then the program would have been modified and that medical clearance
would have been required for any program to be delivered to the plaintiff.  I
accept the plaintiff’s submission that Mr. Chekoy’s non-return to
physiotherapy based on his view that his condition was getting worse combined
with the fact that his program did not recognize the aforementioned conditions
should not be held against him.  It is my view that a reduction is unwarranted
in respect to Mr. Chekoy’s soft tissue injuries.  In regard to employment,
Mr. Chekoy has not sought employment beyond 2009.  It is my view that he was
capable albeit at a lesser level than what he was pre-Accident to seek out
employment and that he was able to take measures to upgrade his proficiency in English. 
I do note his measures to obtain industrial training as a part of receiving
social assistance and his statement that he was interviewed for one job but was
unsuccessful.  However it appears that his efforts were not sustained
reasonably.  I was not convinced that the listing of firms which he says he
applied to was accurate, given what I have already mentioned regarding
reliability.  As a result, I find a reduction of $8,000 for income and earning
capacity loss is warranted.

Conclusion

[127]    
The following amounts are awarded to the plaintiff:

[128]     If the
parties wish to address the issue of costs, an appearance should be scheduled
in the usual way through Trial Scheduling.

"The
Honourable Mr. Justice Masuhara"