IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130705

Docket: M111743

Registry:
Vancouver

Between:

Devlin Roy

Plaintiff

And

Elke Cornella
Storvick

Defendant

Before:
The Honourable Madam Justice Gropper

Reasons for Judgment

Introduction

[1]            
Devlin Roy was involved in a motor vehicle accident on July 1, 2009. He
was driving west on West 14^th Avenue in Vancouver, British Columbia.
The defendant Elke Storvick was making a U-turn at Manitoba Street and 14^th
Avenue when she collided with the passenger side of Mr. Roy’s vehicle.

[2]            
Just before the trial commenced, the defendant admitted liability. The
remaining issue for determination is the quantum of damages for non-pecuniary
loss, past loss of income, loss of income earning capacity, future care costs
and special damages.

Facts

Pre-Accident

[3]            
At the time of the accident, Mr. Roy was 27 years old. He grew up in
Ladysmith, British Columbia. He is the oldest of two brothers and one sister.

[4]            
From his early years, Mr. Roy has excelled in sports. He played every
sport, principally baseball and soccer. Throughout elementary and high school,
Mr. Roy was a member of the premier soccer and baseball teams. He took pride in
being on the school team. However, he did not hold the same sentiment for school.
In his words, he enjoyed being active at school, without having to do school. He
claims he had difficulty with school and he refused help. He received special
assistance in elementary and high school. He struggled through high school, graduating
from grade 12 in 1999.

[5]            
While he attended school, Mr. Roy developed an interest in woodworking.
He received good grades in that subject area. He also enjoyed his physical
education classes.

[6]            
After high school, Mr. Roy attended university in Kamloops, beginning
August 2000. He took a nine-month course in carpentry level 1 and he received an
average grade. He also played baseball every day after school and four games of
baseball on the weekend.

[7]            
After his first year in university, Mr. Roy returned to Ladysmith to
live with his father and he began landscaping. He engaged in landscaping for
almost two years. He enjoyed this work as it allowed him to be outside in the
summer.

[8]            
After working in landscaping for two years, Mr. Roy decided to get a job
in construction. He obtained work as an exterior finisher of residential houses.
He also engaged in framing and siding. He performed that work for one and a half
years. He then went back to school while working for Cools Construction. Cools
Construction sponsored his second year carpentry course that he took between
February and March 2004. Mr. Roy says that the course was difficult as it was
“crammed into six weeks”. Nevertheless, he successfully completed the course.
He took his third level of carpentry a year and a half later, in September
2005. He did not pass it at that time. He continued working as a carpenter and
in February 2007, he retook the level three course and passed.

[9]            
Throughout the period he was training to become a ticketed carpenter,
Mr. Roy worked for AMC Constructors on the Sunshine Coast. He gained experience
working on post and beam structures. In 2008, Mr. Roy obtained his level four
carpentry ticket and he became a ticketed carpenter.

[10]        
In November 2008, Mr. Roy moved to Vancouver seeking a position in carpentry.
In April 2009, he found work with Versailles Building and Design. He remains employed
by that company.

[11]        
Throughout his education, Mr. Roy maintained an active athletic life. He
played soccer, swam and worked out at the gym, all on a daily basis. He would
also run in the morning. He continued to engage in these activities when he
moved to Vancouver.

[12]        
Mr. Roy did not have problems with his lower and middle back or neck
before the accident. He did not have a doctor. He says that his shoulders would
get tight from time to time but he did not see anyone about this problem and it
did not affect his ability or his stamina.

The Accident

[13]        
Mr. Roy was surprised when the defendant’s Volvo hit his car. He
describes the impact as a “hard jolt.” He says his body shifted toward the door
and his head hit the window. His vehicle moved across the street to the south side
of 14th Avenue. Both the door and the back panel on the passenger side of his
vehicle were damaged.

Post-Accident

[14]        
Mr. Roy says that about ten minutes after the accident, he began feeling
“tight” in his back. The feeling worsened. He and his friend called a cab and
went to the Vancouver General Hospital emergency. X-rays were taken and Mr. Roy
was given Tylenol 3. He was advised to see a doctor if his symptoms worsened
after a week.

[15]        
Four days after his attendance at emergency, Mr. Roy visited a walk-in
clinic. He says he felt “a heartbeat of pain in my lower back”, which I take to
mean a pulsing pain that would not go away. He describes the pain as going into
his upper back and into his neck. He began to experience headaches. He also had
trouble sleeping.

[16]        
The first doctor Mr. Roy saw was Dr. Julie Nguyen on July 6, 2009 at the
walk-in clinic. He then became a patient of Dr. Rui Zhang. He saw Dr. Zhang regularly
from August 2009 through October 2009. While being treated by Dr. Zhang,
he was prescribed oxycodone and he attended physiotherapy. He also received acupuncture.

[17]        
Mr. Roy says that in the fall of 2009 he suffered from a great deal of pain
in his lower back and neck. He says “the heartbeat pain” would come on after a
massage or a walk. He did not want to do anything physical and he could not
sleep because of the pain he was experiencing in his neck and lower back. He
had mentioned the following emotional symptoms to Dr. Zhang: “I was feeling way
down, bummed out and feeling terrible.” At this time, he was not working. She
did not prescribe an anti-depressant. Mr. Roy says that his mood improved when
he went back to work and he felt productive once again. He has not spoken to
any other doctor about feeling depressed because he does not feel comfortable “talking
to a stranger about [his] depression.”

[18]        
On September 23, 2009, Mr. Roy underwent MRI imaging of his cervical and
lumbar spine. The most significant findings pertained to his lower back. The
MRI revealed a moderate broad posterior protrusion with an associated annular
tear and a minimally flattened thecal sac at L3/4 as well as a moderate midline
focal disc protrusion with a slight flattening of the anterior thecal sac at
L4/5.

[19]        
Dr. Zhang referred Mr. Roy to Dr. Ian Murray, a physiatrist, with whom
he undertook treatment commencing October 22, 2009. He continues to be treated
by Dr. Murray.

[20]        
Mr. Roy attempted to return to work as a carpenter in July 2009,
unsuccessfully. In mid-November 2009, he commenced a graduated return to work.
Dr. Murray advised him to use a lumbar support corset and to complete regular
exercises. On December 17, 2009, Mr. Roy returned to work full time and he was
able to work some overtime hours.

[21]        
Mr. Roy says he experienced exacerbations of his neck pain in July 2010
and July 2012 when he looked upward. His lower back pain was persistent. From
time to time, he has suffered from intermittent pain in his lower legs.

[22]        
Mr. Roy has maintained full time employment as a carpenter. However, he
says that his pain is aggravated by his work and he has experienced increasing
pain recently. Mr. Roy says the bending and twisting movements involved in his
work are hindered by his lower back pain. He finds it hard to do framing, which
involves bending over, kneeling, crouching, lifting and carrying. He says that
the construction work is hard upon his neck. Simply standing still, looking
down at a bench or looking up at a crown moulding will cause his neck to hurt.
He estimates that 30% of the work is hard on his back; another 30% of the work
is hard on his neck. He cannot avoid performing tasks that hurt his back but he
does get help. He tries to do lighter work. For instance, he will carry two
sheets of plywood rather than four or six. He feels uncomfortable watching
others carry tools and materials because of his limitations. His co-workers and
his boss often come in and “pick up the slack”.

[23]        
Mr. Roy uses Tylenol Arthritis and Tylenol #2 daily to control his
symptoms. He always wears the corset at work, which he describes as
uncomfortable and stiff.

[24]        
Driving is also difficult, particularly if Mr. Roy is on a bumpy road.

[25]        
Mr. Roy says there are no days without pain.

[26]        
The pain in his back and neck interferes with his ability to concentrate
on his job. It instigates headaches and slows him down. He considers that his
efficiency has diminished. He must make slow and deliberate movements. He is
afraid of hurting himself while he is carrying or framing materials.

[27]        
Mr. Roy would like to remain a carpenter. He is successful and well
respected for his work. He does not have an interest in pursuing work that is
less physical. Mr. Roy said that if the accident had not happened, he would be
working with his current company and talking to his brothers about starting
their own construction company.

[28]        
Mr. Roy says that he would love to get back into playing sports but he
is concerned that soccer, baseball and snowboarding will affect his back. That,
in turn, would jeopardize his job. He has been on vacation and he has enjoyed
lying in the sun, swimming and snorkeling. He has not tried to surf or go
ATVing.

[29]        
If the accident had not happened, Mr. Roy would play soccer, baseball
and he would snowboard. He would also run every day and bike for an hour.

[30]        
Mr. Roy has not ceased all recreational physical activities. He does a
full gym-based exercise program for 50 minutes per day, five days a week. He
began this regime some time ago.

[31]        
Mr. Roy describes the accident as slowing down his life: “I haven’t been
able to do much since. All I can do is deal with it. I feel terrible, dead, not
the same person that I was.”

[32]        
Mr. Roy acknowledges that there is a possibility of treating his pain by
way of injections and that he has been so advised. He says that if the
injections offered him permanent improvement, he would undertake the treatment.
If it only provided him with temporary relief and he was required to have regular
injections, he could not cope with it. Mr. Roy expressed an aversion to
needles.

[33]        
Mr. Roy’s employer, Jeffrey Hanratty, testified on his behalf. Mr.
Hanratty is also a carpenter. He has assessed over 1000 carpenters in the
course of work for his own company and in his previous employment as a lead
hand hiring carpenters for TV and movie sets.

[34]        
Mr. Hanratty employs Mr. Roy through his company, Versailles Building
and Design, which he established in 2007. He hired Mr. Roy on April 6, 2009.

[35]        
Versailles Building and Design’s business comprises of renovations and
additions in high end residential buildings. Mr. Hanratty expects his
carpenters to be prepared to work in all aspects of carpentry. Mr. Hanratty says
the tasks in carpentry involve lifting and carrying. The lifting demands are significant.
Other physical aspects include kneeling, crawling, working overhead and working
on ladders.

[36]        
He is confident in Mr. Roy’s work and his work ethic. He describes Mr.
Roy as quiet, punctual, responsible and reliable. He is a highly skilled carpenter.
He values Mr. Roy and wishes to keep him employed full time. Mr. Roy’s focus on
his work and the quality of the work that he produces are of a high quality.

[37]        
Mr. Hanratty says he had hoped Mr. Roy would assume a greater role in
management but he considers that this is not an alternative for Mr. Roy. Mr.
Roy does not have the leadership capacity or the ability to see the next step
to be taken. He does not take initiative when opportunities to take charge
arise. Mr. Hanratty does not believe that Mr. Roy has the ability to oversee sub
trades either.

[38]        
Mr. Hanratty describes Mr. Roy’s attempt to return to work after the
accident. He came back to work a few days after the accident and he completed some
finishing and framing. He was unable to continue. He told Mr. Hanratty that he
was in too much pain. While Mr. Roy was off work until November 2009, Mr.
Hanratty hired another individual. That individual was not as good as Mr. Roy.

[39]        
Mr. Hanratty says that if Mr. Roy had been able to work between July through
November 2009, he would have earned the income and overtime that the
replacement employee earned. The amount the alternative employee earned was
$24,544 in regular wages and $3,363 in overtime.

[40]        
Mr. Hanratty says that he can tell Mr. Roy is protecting himself while
he works. He is hindered by his injury, although he does not complain about it.
Mr. Hanratty says that Mr. Roy obviously enjoys his physical work and
activity and he is very health conscious. Before the accident, Mr. Roy had a
“jump in his step” which is no longer there. He works at one speed with which
Mr. Hanratty is content because he knows that Mr. Roy cannot work any faster.

[41]        
Mr. Hanratty is concerned that the plaintiff may injure himself further
at work.

[42]        
Mr. Hanratty says he is very accommodating of Mr. Roy and his physical
limitations because he is impressed with the work that Mr. Roy performs and his
other positive qualities.

Expert Evidence

Dr. Ian Murray

[43]        
Dr. Murray is an expert in physical medicine and rehabilitation. He
obtained his original qualifications in the United Kingdom and he completed a
study of osteopathic manipulation for one year. He immigrated to Canada in 1974
and obtained a fellowship in physical medicine and rehabilitation in 1978. He
was on the staff at Shaughnessy Hospital and he was associated with UBC as a
clinical associate professor from 1979 to 2000. Since 2001, he has worked as a
consultant at the Seymour Health Centre.

[44]        
Dr. Murray engaged in a one year study in 1968 where he learned to
manipulate areas of the spine and peripheral joints. He says he considers it to
be a subspecialty of physiatry. He performs manipulation on patients, whereas
most of his colleagues refer patients to physiotherapy.

[45]        
Dr. Murray began seeing Mr. Roy on October 22, 2009 and he continues to
see him to the present.

[46]        
Dr. Murray assessed Mr. Roy on 22 occasions between October 23, 2009 and
August 27, 2012. His report is the culmination of those examinations.

[47]        
After his examination of Mr. Roy in October 2009, Dr. Murray’s initial
clinical impression was of “central lower lumbar disc protrusions with
bilateral root tension signs without a demonstrable neurologic deficit.” In
addition, he likely had a left sided facet joint sprain at T1/T2 with an
associated left first rib “displacement”, which would explain his left shoulder
ridge pain.

[48]        
Dr. Murray provides the following comments on the MRI results:

The MRI of the lumbar spine
between T12 and S1 reported small interior osteophytes at the T12/L1 level and
no abnormality was seen at the L1/L2 or the L2/L3 levels. At the L3/L4 level,
mild loss of disc height and a moderate disc desiccation with moderate broad
posterior protrusion with an associated annular tear. Convincing nerve root
contact was not identified but the thecal sac was minimally flattened
anteriorly and there was no neural foraminal encroachment. At the L4/L5 level
the disc was mildly narrowed and moderately desiccated and a moderate midline
focal disc protrusion was identified slightly flattening the anterior thecal
sac but again not making convincing nerve root contact. There was no
significant neural foraminal encroachment and the fact joints appeared normal. The
L5/S1 level was reported to be normal.

[49]        
He summarizes Mr. Roy’s cervical spine management and opines that Mr. Roy
sustained a moderately severe injury to the left lower cervical/upper thoracic
facet joints as a direct result of the motor vehicle accident in July 2009. Dr. Murray
provides a poor prognosis for full recovery:

The probability is that [Mr. Roy]
will continue to experience intermittent episodes of cervical pain, which may
last from a day or two to a week and may necessitate receiving physiotherapy or
massage therapy and/or the taking of analgesic or anti-inflammatory medications.
It may necessitate short periods away from work. Over time, the probability is
that these episodes will gradually lessen but he will always be at increased
risk for these especially if he is to be involved in a further MVA.

[50]        
With respect to Mr. Roy’s lumbar spine, Dr. Murray comments:

As a direct result of [this motor
vehicle accident], this 30-year-old carpenter sustained myofascial injuries to
his cervical spine and a severe injury to his lumbar region where both
clinically and radiologically he has evidence of lower lumbar disc protrusions
principally at the L3/L4 level where there was an associated annular tear and
also at the L4/L5 level where there was a moderate midline focal disc
protrusion.

[51]        
Dr. Murray says that lumbar disc protrusions usually run a protracted
course of recovery: a three year duration is not unusual. He expects that Mr. Roy
will eventually become pain free.

[52]        
In regard to Mr. Roy’s tear of the annulus fibrosus at the L3/L4 level, it
can never heal as it does not have a blood supply. Dr. Murray considers that
Mr. Roy will always be at risk for further episodes of lumbar disc
protrusion pain. Dr. Murray continues:

…he will not be able to continue
with his career as a carpenter and will need to be retrained for a less
physically demanding alternate occupation. It may be difficult to find such an
occupation for this man as he is very much “the sporting type”, who prior to
the [motor vehicle accident] three years ago attended the gym six times a week
and also played soccer twice a week.

[53]        
Dr. Murray concludes his report with the following comments:

[Mr. Roy] sustained … a severe injury to his lumbar spine
with [a] rupture of one or more lumbar discs as evident by the clinical course
and the MRI scan … and a moderately severe myofascial injury to the lower
cervical and upper thoracic spines without evidence of disc involvement … . As
previously mentioned in this report, the ruptured annulus fibrosus will never
heal in the same way that bone heals after a fracture as it is an avascular
structure, but as the disc material “shrinks” the margins of the torn annulus
fibrosus will become approximated and will thus contain the remaining jelly-like
disc material until there is another physical event, which causes re-injury and
further extrusion of disc material. As his work as a carpenter includes heavy
manual work and lifting and carrying, he will no longer be able to pursue that
career, so, he will need to be retrained for an occupation, which does not
include such heavy physical demands on his back. … However, whatever
occupation he has, he is likely to have further exacerbations of lumbar pain in
the future and these could last from a few days to a few weeks and could
necessitate spending time resting supine in bed and could also include physical
therapy interventions such as physiotherapy, massage therapy and acupuncture. Analgesic
and anti-inflammatory medications may also be required. Such episodes could
occur once or twice a year for the foreseeable future.

With regard to the myofascial
injury to his cervical spine, which on the above scale was of a moderate to
severe degree, he is also likely to have exacerbations of pain from time to
time perhaps again once or twice a year, which may necessitate time away from
work and services of a physiotherapist, massage therapist and taking of
analgesic and anti-inflammatory medications. Such exacerbations are not likely
to be long lasting occurring perhaps over days rather than weeks.

Dr. Gordon Robinson

[54]        
Dr. Robinson is an expert in neurology with a special interest in
headaches.

[55]        
He examined Mr. Roy at his counsel’s request on September 28, 2012. Dr. Robinson
took Mr. Roy’s history. Mr. Roy told Dr. Robinson that his headaches
begin at the back of his upper neck, spreading into the left side of the head
as far forward as his forehead and behind the eye. The head pain is usually a
dull and steady discomfort associated with mild nausea. The headaches can range
from mild to moderate and interfere with Mr. Roy’s concentration.

[56]        
Dr. Robinson considers that the history and examination is consistent
with the diagnosis of chronic post traumatic headache related to neck injury
(whiplash).

[57]        
Dr. Robinson recommends various treatments. One of his suggestions is
for the injection of local anesthetics with cortisone into the temporal area.
Dr. Robinson considers that this could result in a reduction of headache
and neck pain for weeks or even months until the next injection. He cautions,
however, that the success of the injection is short-term. “Success” is defined
as providing six to eight weeks of relief. Only 30 to 40 percent of those
persons that receive the injections have this kind of “success”.

[58]        
He offers the following prognosis for recovery:

It is now over 3 years since the
motor vehicle accident. Although his condition did improve, it appears to have
plateaued aside from temporary improvement with spinal manipulation. Unless he
does respond to the treatments suggested I believe it is probable that his
accident related physical symptoms will continue indefinitely.

Dr. William Craig

[59]        
Dr. Craig is an expert in physical medicine and rehabilitation. He
received his MD in 1999 and his fellowship in 2004. He has practised in the
area of physiatry since then.

[60]        
Mr. Roy was referred to Dr. Craig by the defence.

[61]        
Dr. Craig undertook a review of Mr. Roy’s history and examined him.

[62]        
Dr. Craig is of the opinion that Mr. Roy suffered a moderate soft tissue
injury to his neck as a result of the motor vehicle accident. In respect of his
lower back, Dr. Craig states:

Mr. Roy had some early degenerative changes noted in his
lumbar spine x-rays taken July 1, 2009. This included slight narrowing at the
L3-4 level. It is possible that the disc protrusion and annual tear noted at
this level in the September 23, 2009 MRI is due to an acute injury from the
[motor vehicle] accident, but based on the early degenerative changes noted in
the x-rays, the disc protrusion may have predated the accident. It would be
more likely that the annual tear was due to this accident and that he may have
been susceptible to this due to the pre-existing degenerative changes. There is
a reasonable probability that the L4-5 midline focal profusion is due to
injuries from this accident.

It is my opinion that Mr. Roy
likely had a moderate strain of his low back as a result of the [motor vehicle]
accident and that there is a reasonable probability that one of the disc bulges
would be due to an acute injury from this accident.

[63]        
Dr. Craig suggests that Mr. Roy has several favourable prognostic
factors. He opines that Mr. Roy will be able to continue working full time as a
carpenter, although he may have to move away from some of the heavier aspects
of his occupation. Dr. Craig maintains that Mr. Roy is capable of doing all of
his daily living activities, including household tasks, without significant
discomfort.

[64]        
He says there is room for improvement in Mr. Roy’s back pain with
further exercise. Dr. Craig suggests that Mr. Roy should undertake further
focused therapy. If he completes this therapy, Dr. Craig “would expect that he
should be able to return to all of his prior recreational pursuits although
would be at an increased risk of back or neck injury snowboarding.” He also
proposes that Mr. Roy conduct his gym exercises in consultation with a
kinesiologist.

[65]        
At the same time, Dr. Craig considers that Mr. Roy may be left with some
long term, low back discomfort given that his symptoms have been present for
over three years. He says that because Mr. Roy has suffered a back injury,
there is also a significant risk for re-injury.

[66]        
Overall, Dr. Craig considers that the prognosis is favorable for a full
resolution of Mr. Roy’s neck and shoulder symptoms without further treatment,
although he may be at risk for aggravation if there is another injury.

[67]        
Dr. Craig is of the view that the corset is actually inhibiting Dr.
Roy’s muscles. He would not have advised the use of the corset.

[68]        
Dr. Craig opines that Mr. Roy has mood issues and suggests that he be
prescribed medication to treat his mood and sleep pattern.

[69]        
Dr. Craig disagrees with Dr. Murray to a certain extent. Dr. Craig says
there are no symptoms of facet joint injury. He also disagrees with the
severity of Mr. Roy’s injuries as ascribed by Dr. Murray. Finally, he
disagrees with Dr. Murray that the annular tear will not heal; it may become
asymptomatic in his opinion.

Bruce Hunt

[70]        
Bruce Hunt is a kinesiologist. He is an expert in assessing an
individual’s work capacity.

[71]        
Mr. Hunt put Mr. Roy through a functional capacity evaluation assessment
on October 18, 2012, which lasted from 8:30 a.m. to 1:30 p.m. The purpose of this
assessment is to establish a functional tolerance capacity for work. The type
of movements that he asked Mr. Roy to perform is similar to the movements that
he would undertake on a daily basis as a carpenter.

[72]        
Mr. Hunt notes that Mr. Roy presented consistently throughout the
assessment and that Mr. Roy’s perceived limitations accorded with his actual limitations
that were identified during testing.

[73]        
Mr. Hunt concludes that while Mr. Roy is presently meeting the full time
work demands as a finishing carpenter, his functioning is compromised. He
adopts various compensatory posture positions, which appear to be linked to his
hip pain. He is limited in the weights he can lift safely and the testing
stopped for safety reasons as a result of the onset of low back pain. Mr. Roy
had difficulty bending forward and his ability to do so decreased over the
course of testing. Mr. Roy avoided forward bending. He crouched instead, which,
in Mr. Hunt’s view, accounted for his knee pain. Mr. Roy also had difficulty
with actions that required he maintain his hands ahead of him on a sustained
basis. Such action brought on neck tension. Additionally, Mr. Roy had
difficulty working above his shoulder and below his knees because of his neck
and shoulder pain.

[74]        
Mr. Hunt recommends the following:

1.     Mr. Roy
should avoid activities producing lumbar flexion and extension and excessive
loading; and

2.     Mr. Roy
will require multi-faceted therapy to manage chronic low back pain aggravated
with heavy material handling and multiple posturing work demands. Mr. Roy would
benefit from periodic deep tissue massage or active release technique. He would
also benefit from periodic acupuncture. Mr. Roy’s treating physician should
consider a referral to a neurosurgeon and/or spine specialist for localized low
back injections as a diagnostic procedure to identify the origin of the left
low back posterior hip crest pain as well as to develop a medical management
strategy for biomechanical pain,

[75]        
In respect of Mr. Roy’s work abilities and barriers, Mr. Hunt opines:

1.     Mr. Roy is
presently meeting the full time work demands of a finishing carpenter but has
to avoid certain movements. He is less competitively employable due to the
existence of the L3/L4 and L4/L5 degenerative disc disease and he is at a
greater risk of discogenic injury with recurrent exposure to activities
involving axial compression and biomechanical loading;

2.     modifications
to work retains, reliance on other workers and compensatory posturing will
impact Mr. Roy’s work performance, slowing and/or delaying him in completing
his work tasks. This makes him less competitively employable when compared to
healthy and uninjured workers;

3.     increased
low back/left posterior shoulder complex and neck pain continues to impact his
work performance and he may require further sick time as well as medical and
therapeutic treatment. Chronic left upper back posterior shoulder complex and
neck pain continues to impact his functional tolerance;

4.     Mr. Roy
has an elevated risk of progressive L3/L4 and L4/L5 degenerative changes due to
his existing pathology;

5.     Mr. Roy
wears a lumbar spine support belt for lower spine support and stability. The
corset does not prevent downward compression. He has a greater lumbar spine
disc injury during heavy material handling due to the downward displacement and
compressive forces through the lumbar spine;

6.     neck, left
posterior and shoulder complex and low back pain present as moderate employment
barriers to occupations involving light to heavy material handling, sustained
static standing and recurrent low level positioning;

7.     Mr. Roy
should undertake vocational testing to identify aptitudes and interests in
preparation of a career change in the event that his low back pain increases
and he is no longer able to manage his symptoms with medication and avoidance
posturing;

8.     career
changes are often difficult for individuals who have worked exclusively in
labour intensive occupations. Mr. Roy will have difficulty managing sustained
static seating if he changes occupations to a less physically demanding
sedentary office/professional environment;

9.     static
sitting-forward-writing-intensive positions are associated with elevated low
back pain and left posterior complex and neck tension; and

10. Mr. Roy would benefit from various
desktop ergonomic aids to improve sitting tolerance and writing reports,
studying or engaging in computer work.

John Lawless

[76]        
Mr. Lawless is an expert in vocational rehabilitation. A vocational
assessment involves matching types of work to a person’s skills, abilities and
interests. He saw Mr. Roy on October 15, 2012. He conducted an interview and
had Mr. Roy undergo vocational testing. The interview was approximately one
hour in length and the testing took place between 10:30 a.m. and 1:10 p.m.

[77]        
As a result of the testing he conducted, Mr. Lawless is of the opinion
that Mr. Roy is quite limited in his skills and abilities: they are modest.
His interests are very narrow; they are insufficient to realistically retrain
at a college level. Mr. Lawless noted that Mr. Roy was fortunate to have an
accommodating employer at Versailles. The other occupations in which Mr. Roy
was interested were either too physically demanding or unsuitable for him.

[78]        
Mr. Lawless questions Mr. Roy’s long term stability as a carpenter. He
notes that younger workers more commonly tough it out but with increasing age
and/or a changing environment and injury or continuing pain, the worker is left
unable to carry on.

[79]        
Mr. Lawless does not consider Mr. Roy to be a good candidate in sales. Many
of the areas that are feasible for Mr. Roy are not full time or full year
employment positions. He could not maintain his earning level in those
positions. If Mr. Roy does not continue with his employer or in carpentry, his
options for new employment in another field would be very limited.

Robert Carson

[80]        
Robert Carson is an economist with an area of expertise in labour
economics. His report provides the Court with a series of calculations from
which I can assess Mr. Roy’s past and future earnings and future cost of care.

[81]        
I accept his evidence as a basis for the damages assessment.

Damages

The Extent of Mr. Roy’s Injuries

[82]        
The parties disagree about the severity of the accident and Mr. Roy’s injuries.

[83]        
Mr. Roy asserts that his injuries are moderately severe. He says his
life has been turned upside down. His commitment to sports was a powerful
social support for him. The accident has foreclosed this aspect of his life. His
injuries have also interfered with the physical aspects of his work.

[84]        
As a result of his physical limitations, Mr. Roy is increasingly
isolated, struggles with disruptive sleep and suffers from depression to some
extent. His depressed mood results from his dramatic change in lifestyle and
ongoing pain that he has experienced as a result of the accident.

[85]        
The plaintiff relies on the report of Dr. Murray, which provides a
negative prognosis for his recovery. Dr. Murray expects that Mr. Roy will not
return to his pre-accident level of functioning, which includes his ability to
participate in sports. It is likely that Mr. Roy will have to find other
employment that is less physically demanding.

[86]        
The plaintiff also relies on the report of Dr. Robinson, which describes
the continuing headaches Mr. Roy suffers. Dr. Robinson acknowledges those
headaches contribute to a reduced quality of life for Mr. Roy.

[87]        
The defendant asserts that the accident was not “particularly dramatic”
and while Mr. Roy’s vehicle was written off, it was an older model. He has
returned to work full time since December 2009 and he has not missed a day of
work since then. He has not received warnings from employers or complaints from
co-workers about not completing his work. In fact, he is able to function at
his workplace effectively and he is a highly skilled carpenter.

[88]        
Mr. Roy has not increased his medical treatment or his use of medication.
Nor has he engaged in ongoing massage therapy or physiotherapy.

[89]        
The defendant also argues that the plaintiff’s commitment to exercise is
“doubtful”. The defendant relies on the evidence of Dr. Craig, who says that
Mr. Roy should engage in general gym workouts. I note that it was Dr. Craig’s
understanding that Mr. Roy was not attending the gym on a regular basis.

[90]        
In respect of the medical evidence, the defendant notes that the family
doctor, Dr. Zhang, was not called as a witness to give evidence, although she
treated the plaintiff for two months before his referral to Dr. Murray. The
defendant says that Dr. Zhang would be the proper witness to address the
issue of whether Mr. Roy suffered from depression.

[91]        
The defendant says that Dr. Murray’s practice is “not in step with his
colleagues in physical medicine.” Dr. Murray’s treatments are “essentially an
extended series of physiotherapy manipulations which do not give the plaintiff
the measure of relief he’s entitled to.” The defendant argues that Dr. Murray
is “extremely old fashioned and/or his medical knowledge is dated.”

[92]        
The defendant draws attention to the lack of treatment Mr. Roy has sought.
Over a period of three years and three months, Dr. Murray has only seen the
plaintiff 23 times and there are some fairly long gaps between those appointments.

[93]        
The defendant argues that Mr. Roy’s aversion to needles is an insufficient
excuse for not having undertaken the injection treatment, as recommended by Dr. Robinson.
The defendant submits this treatment might address Mr. Roy’s headaches and,
potentially, his other injuries.

[94]        
The defendant also relies on Dr. Craig’s view that with a proper
rehabilitation program, exercise therapy, repeat MRIs, consultation with a
kinesiologist and a mood assessment, Mr. Roy would likely have a more positive
prognosis.

[95]        
In respect of the evidence generally, I find that the assertion by the
defendant that the collision was not particularly dramatic does not lead me to
conclude that Mr. Roy’s injuries are less severe. The extent of the injury
is to be decided on the whole of the evidence, not simply the nature of the
collision: Christoffersen v. Howarth, 2013 BCSC 144 at paras. 55 – 57.

[96]        
I do not draw any adverse inference from Mr. Roy’s failure to call his
treating physician. Dr. Zhang was involved at a very early stage of the
plaintiff’s treatment. Soon after she began treatment, she determined that Mr.
Roy should be referred to Dr. Murray, who had greater expertise in the field of
physical medicine and rehabilitation. I further find that it is inconsistent
for the defendant to argue on the one hand that the plaintiff should have
called Dr. Zhang to confirm that he suffers from depression and also to rely on
Dr. Craig’s report, which appears to reach the same conclusion and recommends
that Mr. Roy seek treatment for what Dr. Craig considers to be a mood
disorder.

[97]        
In relation to the defendant’s criticisms of Dr. Murray, I accept that
Dr. Craig holds a different view, but there is no basis upon which I can
conclude that the treatment recommended by Dr. Craig would be more effective
than that undertaken by Dr. Murray. As Dr. Murray explains, his colleagues
refer physiotherapy manipulation to a physiotherapist. Because of his unique
training, Dr. Murray performs these treatments himself. It cannot be said
that Mr. Roy has not had a proper treatment regime.

[98]        
In respect of the use of the corset, I am aware of the conflicting
opinions between Dr. Murray and Dr. Craig, but I cannot find that the use of
the corset has prolonged Mr. Roy’s symptoms.

[99]        
 In respect of the defendant’s view that Mr. Roy is underestimating his
physical abilities and overstating his exercise program, I find Mr. Roy to be
credible in this respect. His commitment to physical activity before the
accident was very strong. He is disappointed by his inability to pursue that
physical activity post-accident. I accept that Mr. Roy is doing what he can in
terms of physical exercise, subject to his limitations. I further accept that
Mr. Roy is not engaged in baseball or soccer or any of his pre-accident
activities, based on the advice given to him by Dr. Murray and his own
perceived risk of re-injury.

[100]     I disagree
with the defence’s theory that the medical treatment sought by the plaintiff
demonstrates that Mr. Roy’s “problems were not as bad as [he] would lead us to
believe.” I expressed my view of this theory in Myers v. Leng, 2006 BCSC
1582 at para. 50:

I am not troubled by the gap in
the plaintiff seeking treatment. His decision not to continue to see a doctor
about his neck and back complaints was clearly based on a reasonable conclusion
that the doctors could only provide temporary relief from the pain by
prescribing medication and physiotherapy. The plaintiff did not consider either
to be helpful. It is a sensible and practical approach to medical treatment. If
continuous medical treatment can cure you, or make you feel better, then it is
worthwhile to attend on a regular basis. If it cannot, there really is no point
in taking the doctor’s time. The purpose of a seeing a doctor is not to create
a chronicle of complaints for the purpose of proving that you have ongoing pain
from an injury arising from a motor-vehicle accident. Rather than detract from
the accuracy of the plaintiff’s complaint, I consider the plaintiff’s course of
conduct, in not seeing the doctor on a continuous basis, to enhance his
evidence.

[101]     This view
was also expressed by Mr. Justice Smith in Edmondson v. Payer, 2011 BCSC
118 (affirmed 2012 BCCA 114) at para. 37:

…There certainly may be cases
where a plaintiff’s description of his or her symptoms is clearly inconsistent
with a failure to seek medical attention, permitting the court to draw adverse
conclusions about the plaintiff’s credibility. But a plaintiff whose condition
neither deteriorates nor improves is not obliged to constantly bother busy
doctors with reports that nothing has changed, particularly if the plaintiff
has no reason to expect the doctors will be able to offer any new or different
treatment. Similarly, a plaintiff who seeks medical attention for unrelated
conditions is not obliged to recount the history of the accident and resulting
injury to a doctor who is not being asked to treat that injury and has no
reason to be interested in it.

[102]     I also
disagree with the defendant that Mr. Roy, in order to mitigate his damages,
must undertake the injections suggested by Drs. Robinson and Craig. The doctors
say that such injections provide only temporary relief for less than half of
patients that receive this treatment. Mr. Roy is entitled to decline this form
of treatment in view of its moderate success rate and the temporary relief it provides.

[103]     I accept
that Mr. Roy has suffered from moderately severe injuries that have affected
all aspects of his life. I also accept that his physical limitations have
affected his mood. I further find that he has taken all possible avenues to
move his recovery forward.

Non-Pecuniary Damages

[104]     Non-pecuniary
damages are awarded to compensate the plaintiff for pain, suffering, loss of
enjoyment in life and loss of amenities. The list of factors to be considered
by the court generally include the plaintiff’s age, the nature of the injury,
the severity and duration of the pain, the level of disability, loss of
lifestyle and impairment of life. The compensation should be fair to all
parties. Fairness is measured against all awards made in comparable cases,
which provide general guidance. Each case must be decided on its own facts.

[105]     At the
time of the injury, Mr. Roy enjoyed an active lifestyle. He was engaged in work
as a carpenter and participated regularly and enthusiastically in many sporting
activities. While he is able to continue his employment, the remaining aspects
of his physical activities have come to an end. In reconciling the prognosis of
Drs. Craig and Murray, I consider that Dr. Craig has an unduly optimistic view
of Mr. Roy’s prospective recovery. I note that Dr. Craig had a more limited
opportunity to observe Mr. Roy. He was also apparently unclear on the degree to
which Mr. Roy was engaging in exercise.

[106]     I further note
that Dr. Craig dismissed Dr. Murray’s treatment of Mr. Roy and recommended that
Mr. Roy be assessed by a kinesiologist. Mr. Roy was assessed by Mr. Hunt, a
kinesiologist, who put him through testing and concluded that Mr. Roy’s
functioning is compromised and that he will likely have increased rather than
reduced pain.

[107]     I find
that Dr. Murray’s prognosis is more accurate and that his opinion Mr. Roy
suffered a severe injury to his lumbar spine and a moderate to severe injury to
his cervical spine is accurate. While Dr. Murray suggests that there may be
some improvement, Mr. Roy is at risk of re-injury. He will also suffer from continuing
pain and discomfort.

[108]     The
plaintiff suggests non-pecuniary damages in a range of $75,000 to $85,000. The
defence suggests damages in the range of $50,000 to $60,000.

[109]     Having
reviewed the cases provided by both parties, I assess Mr. Roy’s non-pecuniary
damages at $75,000.

Loss of Income

Past Income

[110]     The
parties do not dispute the gross loss of past income as $24,200. The defence
argues that the $3,300 of overtime claimed should not be awarded as its calculation
is doubtful.

[111]     I accept that
the measure of Mr. Roy’s past loss of income should be based on the earnings of
the employee that Versailles hired to replace Mr. Roy.

[112]     I award
the plaintiff $28,000 less taxes, in respect of his past loss of income. I accept
that the net amount, as provided by the plaintiff, is $21,392.29.

Future Loss of Income Earning Capacity

[113]     The
parties dispute whether Mr. Roy has suffered a loss of income earning capacity.

[114]     The
defence asserts that as Mr. Roy has worked steadily over three years without
missing a day of work, there is no way by which to predict whether he will miss
work in the future.

[115]     Further,
the defence argues that if Mr. Roy undertakes the recommendations from Dr.
Robinson, Dr. Craig and Mr. Hunt, he will increase his functioning level and
continue to work.

[116]     Additionally,
the defence notes the following factors, which undermine the claim for loss of
future earning capacity:

1.     Mr. Roy’s
condition will improve to the point where he is pain free;

2.     there is
room for improvement in his condition;

3.     Dr. Murray
told the plaintiff that he will improve in three to five years;

4.     Mr. Roy
acknowledges that he is slowly getting better;

5.     Mr. Roy
suffers from degenerative disc disease, which will ultimately make him unable
to continue work as a carpenter;

6.     if he loses
his job with Versailles he will likely be hired by someone else;

7.     he has the
potential to develop a business with his brothers to enable him to maintain or
improve his level of income.

[117]     On these
bases, the defendant argues there is no real and substantial possibility that
Mr. Roy will lose income in the future.

[118]     The
plaintiff argues that there is a real and substantial possibility he will lose
income in the future. His continued work as a carpenter has come at a cost: he
experiences neck and back pain on a daily basis. He is likely to continue to
suffer from daily headaches. He increases his dosage of Tylenol so that he can
work on a steady basis. He also engages in compensatory strategies, which Mr.
Hunt confirmed, to avoid pain.

[119]     Further,
the evidence suggests that he is no longer suited to carpentry work, which
involves heavy carrying, lifting, bending, sitting, working in a flex position
for a long time and holding his neck and extension fluxion for extended periods
of time.

[120]     The
plaintiff argues that it is inevitable he will have to quit carpentry work; the
question is: how long can he remain employed as a carpenter?

[121]     Once he
can no longer work in this field, he has limited work options due to a combination
of factors, including his age, risk of re-injury and his aptitudes.

[122]     In
considering a loss of capacity claim, I refer to Perren v. Lalari, 2010
BCCA 140 at para. 32.

A plaintiff must always prove, as was noted by Donald
J.A. in Steward, by Bauman J. in Chang, and by Tysoe J.A. in Romanchych,
that there is a real and substantial possibility of a future event leading to
an income loss. If the plaintiff discharges that burden of proof, then
depending upon the facts of the case, the plaintiff may prove the
quantification of that loss of earning capacity, either on an earnings
approach, as in Steenblok, or a capital asset approach, as in Brown.
The former approach will be more useful when the loss is more easily
measurable, as it was in Steenblok. The latter approach will be more
useful when the loss is not as easily measurable, as in Pallos and Romanchych.
A plaintiff may indeed be able to prove that there is a substantial possibility
of a future loss of income despite having returned to his or her usual employment.
That was the case in both Pallos and Parypa. But, as Donald J.A.
said in Steward, an inability to perform an occupation that is not a
realistic alternative occupation is not proof of a future loss.

[Emphasis in original.]

[123]     I find the
plaintiff has proved that there is a real and substantial possibility that he
will be unable to continue working on a full time basis as a carpenter because
of the injuries he sustained in the motor vehicle accident. I have addressed
the defendant’s positive prognosis already: it is unrealistic.

[124]     My task is
to assess that loss, taking into account all of the relevant factors which
arise from the evidence. Those factors were set out in Rosvold v. Dunlop,
2001 BCCA 1 at para. 10 (Rosvold):

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

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

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

[125]     I consider
that Mr. Roy has lost some of his ability to perform physically demanding work.
That ability will continue to decrease, despite his strong work ethic. His
ability to earn income has been impaired because he is unlikely to find
alternative employment that will offer him the same job security and income
level.

[126]     I find the
plaintiff is less marketable and attractive as an employee, particularly as a
carpenter, to potential employers and that he has lost the ability to take
advantage of all job opportunities that might be open to him. I accept that he
has limited options for alternative employment based on his skills and
abilities.

[127]     While I
accept that Mr. Roy remains valuable to himself as a person capable of earning
income in a competitive labour market, that value will decrease as he becomes
less competitive over time.

[128]     As pointed
out in Rosvold at para. 11:

The task of the court is to
assess damages, not to calculate them according to some mathematical formula: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248
(C.A.). 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: Ryder (Guardian ad litem
of) v. Jubbal, [1995] B.C.J. No. 644 (C.A.) (Q.L.); Parypa v.
Wickware, supra. The overall fairness and reasonableness of the
award must be considered taking into account all the evidence.

[129]     I consider
that Mr. Roy will begin to reduce his hours of work at the age of 50, in 2032. I
find that his income will be reduced by half after that date. While he is
unlikely to be able to continue in carpentry work, another field of employment
is difficult to foresee. I consider that Mr. Roy will continue to work in some
capacity to age 70.

[130]     On that
basis, it is anticipated that Mr. Roy’s income annually as of 2032 will be $34,637.
His income will be reduced to $17,300 per year thereafter, a loss of $23,000
per year. Applying the multiplier provided in table 4 of Mr. Carson’s report, Mr.
Roy’s estimated loss from age 50 to age 70 is $155,000.

[131]     Applying
the principles of Rosvold and considering the overall fairness and
reasonableness of the award by taking into account all of the evidence, I
assess Mr. Roy’s future loss of income earning capacity as $150,000.

Future Care Costs

[132]     The
plaintiff seeks future care costs in relation to replacing the lumbar sacral
corset, purchasing Tylenol and other medication, pursuing headache treatment,
physiotherapy and massage therapy, retraining and seeking ergonomic
accommodations. The amount claimed is $39,832. The defendant suggests that the cost
for future care should be assessed at $10,000.

[133]     I find it
is unlikely that Mr. Roy will pursue the injections suggested by Dr. Robinson
and I therefore do not grant any amount for that future treatment. I find that
the other amounts claimed are reasonable.

[134]     I assess
the future care costs as $35,000.00.

Special Damages

[135]     The
plaintiff claims $3,327.48 for the cost of physiotherapy, massage therapy and
medication. The defendant agrees with that amount.

Summary

[136]     In
summary, Mr. Roy is awarded:

[137]     Unless
there are matters relating to costs of which I am currently unaware, Mr. Roy is
entitled to his costs at Scale B.

[138]     If costs
need to be spoken to, the parties have leave to schedule a hearing for that
purpose.

“Gropper J. “