IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130801

Docket: M127022

Registry:
New Westminster

Between:

Walter Chow

Plaintiff

And

Paul Nolan and
Prince George Taxi Holding Co. Ltd.

Defendants

Before:
The Honourable Madam Justice Kloegman

Reasons for Judgment

I.                
INTRODUCTION

[1]            
The plaintiff, Mr. Chow, is the unfortunate victim of two motor vehicle
accidents, neither of which was his fault. The first accident took place in
2002. The plaintiff’s vehicle was struck and the impact threw it onto the
sidewalk. He suffered significant injuries to his neck, left shoulder, upper
and lower back, and most significantly to his lower left quadrant, leaving him
with a serious, debilitating chronic pain syndrome.

[2]            
The
2002 accident was the subject of a trial before Arnold-Bailey J., in April
2006. It settled on the fifth day of trial for a substantial lump sum in
satisfaction of all the plaintiff’s claims from the date of the accident into
the future for income loss, pain and suffering, and cost of care.

[3]            
On
October 30, 2008, the plaintiff was involved in the motor vehicle accident
which is the subject of this action. At about 1:05 p.m. on Ferry Street in
Prince George, the plaintiff was rear ended by the defendant. The plaintiff had
been stopped at a red light waiting to turn left. His young daughter was
strapped in her car seat in the back. The defendant, Paul Nolan, a taxi driver
who drove with his left foot on the brake and his right foot on the gas, was
momentarily distracted. His car crept closer to the plaintiff. Meaning to
brake, the defendant inadvertently put his foot on the gas and accelerated two
to three feet into the plaintiff’s bumper at a speed of about five or six
kilometres per hour.

[4]            
The
damage to the plaintiff’s vehicle was insignificant, consisting primarily of a
bolt from the defendant’s licence plate becoming embedded into the vehicle’s
bumper. However, the plaintiff had been holding the steering wheel with both
hands and was stunned, shaken and surprised. He told the defendant driver that
he thought something was “wrong” with him.

[5]            
No
ambulance or police were called. The parties exchanged information and the
plaintiff went home with his daughter. About an hour later he took his daughter
to their family physician, Dr. Javed. While there, the plaintiff broke out
into a full body spasm and was taken to hospital by ambulance.

[6]            
The
defendants concede that the defendant driver was liable for the accident and
that the plaintiff suffered soft tissue injuries in the accident which caused him
aggravated neck and back pain for a time, and bilateral carpal tunnel syndrome.
In turn, the plaintiff concedes that his chronic pain syndrome, which takes the
form of full body spasms akin to seizures, is a result of the severe injuries
he had received in the 2002 accident.

[7]            
The
parties join issue on whether the 2008 accident aggravated the plaintiff’s
chronic pain syndrome, and what effect, if any, this had on his functional
capacity and quality of life.

[8]            
The
plaintiff submits that the 2008 accident significantly aggravated his chronic
pain syndrome and impacted on his daily living. Whereas before the 2008
accident he enjoyed three to four days a week of almost normal function, he now
only realizes one to two “good” days a month. This translates into losses
incurred by the plaintiff under all heads of damage.

[9]            
The
defendants maintain that the plaintiff has not proved that the worsening of his
pre-existing chronic pain condition was caused by the 2008 accident.
Alternatively, the defendants submit that even if I should find that the 2008
accident caused some exacerbation of the plaintiff’s chronic pain condition,
the plaintiff’s damage claims are unreasonable and do not properly take into
account his original position.

II.              
The evidence

A.             
Credibility

[10]        
In my view, the best evidence of the plaintiff’s condition and status
both before and after the October 2008 accident is found in the documentary
record created at the time of the April 9, 2006 trial, in the period
between April 2006 and October 30, 2008, and from October 30, 2008,
to the present.

[11]        
The
viva voce evidence of the plaintiff given at trial before me is less
reliable. As a witness, the plaintiff had a tendency to analyze, speculate and
reconstruct events. When inconsistent statements from his examination for
discovery were put to him at trial, he claimed that he had not been thinking
clearly during his examination for discovery because of his medication and
chronic pain. He said that the examination for discovery answers, therefore,
were rife with inaccuracies. At trial, I found the plaintiff to be articulate
and precise in his answers, notwithstanding that he testified he was on
medication and in chronic pain during trial. However, if I accept his excuse
that his condition and medication caused him to be inaccurate in his previous
inconsistent statements made under oath at examination for discovery or made in
writing to ICBC, then I must also consider the effect of his condition and
medications on the recounting of events in the many oral statements made to his
medical practitioners over the years, and on his testimony given at trial
before me.

[12]        
Thus
I give less weight to the evidence of the plaintiff where unsupported or
contradicted by the documents or evidence of other credible witnesses.

B.             
The Plaintiff’s Original Position

[13]        
Before
the plaintiff’s damages can be assessed, his pre-existing, or original
condition as it was in October 2008, before the accident, must be determined
and juxtaposed with his post-accident condition. This allows for an analysis of
the cause of the differences, if any. If the plaintiff establishes that the
worsening of his condition was caused by the 2008 accident, this juxtaposing of
condition before and after the 2008 accident also allows for the measurement of
any risk of debilitation that the manifest and disabling condition might have
effected in any event (Athey v. Leonati, [1996] 3 S.C.R. 458).

[14]        
The
plaintiff submits that the medical cause of his chronic pain syndrome was never
accurately diagnosed, despite the many specialists who examined the plaintiff
between 2002 and 2008. In his written submissions, plaintiff’s counsel
describes the plaintiff’s condition as:

…totally disabling chronic pain.
The severe attacks are similar to a seizure. The typical sequence starts with
Mr. Chow having involuntary muscle spasms, which cause rather severe jerking
motions to his whole body but primarily from his waist to his head. As the
seizure progresses and the pain increases, the jerking movements reduce and Mr.
Chow becomes doubled over in pain into a fetal position. He will be moaning and
crying out loud at this stage of his seizure.

[15]        
Having
reviewed the video evidence in court, I find that counsel’s description of the
plaintiff’s seizure-like, full body spasms to be fairly accurate. There was no
medical evidence with respect to the difference, if any, of the full body
spasms exhibited in the 2006 DVD from the 2013 DVD. On the DVDs, they appear to
be of the same type and intensity.

[16]        
For
purposes of the 2006 trial before Arnold-Bailey J., Dr. Gill prepared a
28-page medical legal report dated January 13, 2006, and a follow-up
report dated August 29, 2006. Highlights of those reports included the
following:

[January 13, 2006 report]

As a result of this motor vehicle accident [2002] Mr. Chow
sustained multiple myofacial strains. More specifically … cervical paraspinal
muscles, the tripezius muscles, the thoracic paraspinal muscles and the lumbar
paraspinal muscles. In addition the left hip flexor muscles as well as the
muscle of the left lower abdominal wall were involved. The injuries to the neck
and upper back regions have improved significantly. Though some partial
disability continues to remain as a result of injury to the structures almost
complete resolution has occurred. Mr. Chow’s condition has plateaued in respect
to these injuries and thus I expect that Mr. Chow will continue to have some
partial disability as a result of these injuries. Mr. Chow’s low back region
remains much more problematic. He continues to display significant levels of
disability as a result of injury to this area

More significantly Mr. Chow continues to have markedly severe
left hip and abdominal wall pain. He has ongoing pain to this region
continually and experiences episodes of extremely severe pain three to four
times per month. Initially one could determine an aggravating factor in the
causation of these episodes; more recently sometimes they seem to occur with no
aggravating factor.

Mr. Chow also remains very significantly depressed
profoundly depressed. His sleep remains poor. He is very fatigued. His memory
and concentration are diminished. His moods remain labile and very low.

Mr. Chow also has significant erectile dysfunction. The cause
of this multi-factorial. Pain is most definitely a significant factor as is the
depression. Medications may also be contributing.

Mr. Chow unfortunately has become opiate dependent. We will
have to wean Mr. Chow off the injectible Demerol and the short-acting Dilaudid.

I anticipate that Mr. Chow will never be pain free … Mr. Chow
remains permanently and totally disabled. I do not see him being able to return
to the workplace in any capacity. He remains unable to lift or carry anything
greater than approximately 10 to 15 pounds. He remains restricted in his
ability to bend or twist his torso. He is restricted from prolonged sitting,
standing, walking and driving. His memory and concentration are also severely
restricting his ability to work. Mr. Chow is also restricted from performing
any heavy household cleaning and yard work.

[August 29, 2006 report]

Mr. Chow’s symptoms have not changed … continues to have very
extreme attack of left hip and groin pain. These occur approximately three to
four times per month. … very little has changed in these attacks since they
were first noted shortly after the [2002] motor vehicle accident].

It is evident that Mr. Chow has
plateaued and I do not anticipate that he will make any further gains. … Mr.
Chow remains totally and permanently disabled … I do not feel that Mr. Chow is
now fit or will be fit ever in the future for any gainful employment.

[17]        
In 2006, Dr. Gill was of the
opinion that the chronic pain was musculoskeletal in origin.

[18]        
In
his January 14, 2013 report prepared for this trial, Dr. Gill stated that
by October 2008 the plaintiff’s condition was stable. Dr. Gill reported
that the frequency of the plaintiff’s chronic pain attacks had decreased, but
not stopped. This latter statement is not supported by the documentary evidence
as will be seen further on.

[19]        
Dr.
Griffin, psychiatrist, in his medical legal report of November 9, 2006,
stated that the plaintiff reported that his sex life was virtually absent since
the accident, he had severe difficulties with concentration and processing
memory and was experiencing painful spasm crises four to six times a month and
the frequency was increasing.

[20]        
Dr.
Meloche, in his consultation report of June 5, 2008, stated that the
plaintiff was left with discomfort in his lower abdomen and upper thigh that
was “pretty much unchanged” since the 2002 accident.

[21]        
Dr.
Sable, psychiatrist, in his May 23, 2006 report, stated that the plaintiff
complained of chronic daily pain on a three out of four to four out of six
level, and sometimes more for which he had been taking Dilaudid. The plaintiff
told Dr. Sable that over the previous five months the “injections and
frequency of his need for opioids had increased.” His sleep was poor; he
was having difficulty with concentration and memory, and with libido and
erectile dysfunction.

[22]        
Dr.
O’Connor, in his report of December 10, 2007, referred to ongoing left side
pain which worsened after the surgery in 2004. He also referred to ongoing
difficulties with erectile dysfunction and decreased short-term memory.

[23]        
The
plaintiff submits that before October 2008, his seizures could be brought under
control by injections of Demerol which eventually dulled the pain. The
plaintiff testified that he would have side effects including fatigue, dizziness
and inability to concentrate, for a day or infrequently as long as 48 hours.
The plaintiff also testified that before the 2008 accident the attacks occurred
four to six times per month.

[24]        
The
submission and testimony at trial of the plaintiff does not accord with the
charts of full body spasms and Demerol injections prepared by the plaintiff and
his wife contemporaneously from January 2007 to April 2013. These charts
indicate that the plaintiff experienced 61 full body spasms in 2008 before
the accident, or approximately six full body spasms per month on average.
Furthermore, the plaintiff said on examination for discovery it took him three
days to get over the side effects. He refused to adopt this discovery evidence
at trial, saying it was only one or two days. Mr. Willy Chow, the
plaintiff’s brother, deposed that it would take the plaintiff a couple of days
to get rid of the effects of the attack and the Demerol.

[25]        
The
plaintiff’s charts also showed that the full body spasms and Demerol shots were
on the increase in 2008 from 2007. The attacks in 2007 averaged four times per
month and the shots averaged five shots per month, as compared with an average
of six attacks and seven shots per months in the 2008 year before the October
accident.

[26]        
I
conclude, on the whole of the evidence, that in the time period shortly before
the accident on October 30, 2008, the pattern of the plaintiff’s full body
spasms and corresponding need for Demerol shots was rising slowly with no
improvement in the foreseeable future. He continued to attend on Dr. Gill
every three to four months for pain and narcotics management. His other
injuries from the 2002 accident had substantially resolved except for
intermittent muscle strains to his neck, back and extremities from over activity.

[27]        
I
find that it was more likely than not that before the 2008 accident the
plaintiff was “out of commission” approximately 12 days per month and able
to function at a better level on the other days. On these “better” days, he was
capable of light housekeeping, shopping, laundry, some yard work and lots of
cooking. The Chows had moved to Prince George in 2006 and their new life there
seemed to agree with the plaintiff and improve his mood. Mr. Chow had
grown up in Prince George and he socialized on his better days with old friends
and family. His daughter started kindergarten in 2008 and the Chows made new
friends with classmate parents.

[28]        
After
he moved to Prince George, the plaintiff took on the role as skip on a curling
team, and transported or accompanied his daughter to school and extracurricular
activities. He took out a commission to perform marriages. In the spring of
2008 he performed some part-time clerical work for his wife’s then employer.
Also, on occasion, he cleaned and polished his cars and walked his Sheltie dog.
Sometimes these activities caused him increased pain or triggered full body
spasms, so he created strategies to assist himself such as using specialized
equipment or performing at a slower pace.

C.             
Post-2008
Accident Condition

[29]        
Within
a couple of hours of the accident on October 30, 2008, the plaintiff was
experiencing a full body spasm. The plaintiff submits that from then on his
attacks increased to 12 to 15 times per month and later to 30 times
per month. The plaintiff submits that the initial increase in attacks caused
his Demerol consumption to rise to the point that Dr. Gill stopped
prescribing it in August 2009. Since then the plaintiff and Dr. Gill have
experimented with a new drug regime that is less effective with greater side effects.
Therefore the plaintiff, except on rare occasions, no longer cooks, does
chores, drives his daughter, mows his lawn, removes snow or walks his dogs. His
social life has diminished considerably, and he is unable to perform ad hoc
office work.

[30]        
In
my view, these submissions present an overly simplified picture of the
evidentiary record. The Chows’ charts definitely show an increase in full body
spasms and drug consumption after the accident, but it is not a straight rise.
After the accident, for the first 10 months until the plaintiff was taken
off Demerol, he averaged about 15 attacks and 20 shots per month.
Then, for the next 13 months while he was on 80 mg. Oxycontin and
Dilaudid per day, his full body spasms decreased to an average of about nine
per month. In September 2010, Dr. Gill started to decrease the dose of
Oxycontin. The decreases continued until December 2011, when the plaintiff no
longer used Oxycontin and relied on Dilaudid alone. The number of full body
spasms during this 16-month period increased again to an average of 14 per
month, and then 13 per month for the first four months of 2012.

[31]        
The
real spike in the number of full body spasms appears from the charts to have
started in May 2012 and continued to May 2013. Over this 13-month period, the
plaintiff’s full body spasms have increased in number to an average of 30 per
month.

[32]        
In
summary, for the first 10 months after the accident the plaintiff
experienced more than double the average number per month of full body spasms
and almost triple the average number of Demerol shots. However, this situation
seemed to calm down for the next year while he was on the full dosage of
Oxycontin. When Dr. Gill started to reduce the Oxycontin in September
2010, there was a corresponding gradual rise in full body spasms, but it was
not until a year and a half later, in May 2012, that the full body spasms
started to increase to a range of 30 per month.

III.            
causation

[33]        
It
appears that the plaintiff’s medical condition has dramatically worsened over
the last year. There was no medical explanation given by any of the expert
witnesses for this unusual turn of events, other than the change in the
plaintiff’s medication.

[34]        
Dr.
Gill wrote in his report of January 13, 2013, that:

The increase in pain and opiate
use is far greater than one would expect from natural variations in his
condition. The increased frequency has been over years and not over a few weeks
whereas natural variations occur over a relatively brief period and then return
to the base line. For Mr. Chow the aggravation of symptoms is not only dramatic
but has been sustained over several years. That evidence is clearly much more
than one would ascribe to natural variations.

[35]        
Dr.
Chu, the plaintiff’s expert physiatrist, opines in his report of November 5,
2012, that he did not know what could have caused such a degree of pain
flare-up. It was not due to any specific musculoskeletal or neurological cause.
Dr. Chu found that it was difficult to draw a direct line from a possible
injury suffered from the 2008 accident and the severe exacerbation of his
chronic pain syndrome and frequency of pain flare-ups.

[36]        
Dr.
Chu also notes that prior to the 2008 accident the plaintiff had a
well-established chronic pain syndrome with a severe level of disability, and
that today he still has a chronic pain syndrome with a severe level of
disability. There was no significant musculoskeletal damage or injury as a
result of the 2008 accident and yet the amount of pain or the frequency of
flare-ups has increased and his level of disability is somewhat worse.

[37]        
On
cross-examination, Dr. Gill agreed with Dr. Chu that it is difficult to draw a
straight line between the accident and the exacerbation of the plaintiff’s
symptoms.

[38]        
Dr.
Gill deferred to the opinions of Drs. Lau and Dimov of the St. Paul’s
Hospital Pain Clinic that the chronic pain was caused by neuropathic pain and
muscular spasms with an underlying somatoform component.

[39]        
Somatoform
disorders were explained by Dr. Levin, psychiatrist, in his report of July 2,
2012. These occur where the patient complains of physical symptoms which are
excessive or for which there is no demonstrable organic basis. There is a
tendency to experience emotional distress physically. Unlike factitious
disorder, the production of symptoms in somatoform disorders is unconscious and
unintentional; the person is not simulating or feigning illness, but believes
fully that the illness is real. Dr. Levin agreed with Dr. Dimov that
the plaintiff exhibited somatoform components in his presentation.

[40]        
Dr. Levin further opined in
his report that the plaintiff’s full body spasms were highly unusual and
inconsistent with any psychiatric condition known to him. While Dr. Levin
was not implying that the plaintiff was malingering, exaggerating or
fabricating his symptoms, there was a significant volitional component in his
presentation, to which opinion Dr. Gill agreed in cross-examination.

[41]        
Dr.
Levin also opined that it was most likely that the plaintiff would have had
periods of worsening of his abdominal pain and depression in the absence of the
accident. This latter statement was based on Dr. Levin’s review of the
plaintiff’s records dating back to 2002 and Dr. Levin’s experience with
chronic pain patients.

[42]        
The
plaintiff relies on Dr. Gill’s opinion that the 2008 accident aggravated
the plaintiff’s chronic pain syndrome. The defendants argue that Dr. Gill
merely used a temporal basis as a means to determine causation. The British
Columbia Court of Appeal in Madill v. Sithivong, 2012 BCCA 62, has warned
that the court is called upon to exercise caution by exclusive or substantial
reference to a temporal sequence of events to establish a fact by inference.

[43]        
The
defendants also argue, as per Maslen v. Rubenstein (1993), 83 B.C.L.R.
(2d) 131 (C.A.), that the cause of the plaintiff’s psychological injuries must
lie in an unlawful act of the defendants, rather than the plaintiff’s own
choice.

[44]        
It
may be that due to the overlapping nature of the plaintiff’s soft tissue
injuries and chronic pain syndrome, the plaintiff here is not able to establish
that “but for” the defendant’s negligence, the entirety of his injuries would
not have occurred. It bears repeating that the vexing question of causation is
not decided according to scientific precision, but according to common sense,
to a large degree (Snell v. Farrell, [1990] 2 S.C.R. 311). It also bears
repeating that the plaintiff need not prove that the defendant’s breach of
standard of care is the only cause of the plaintiff’s injuries, only
that it is “a” cause of them (Clements v. Clements, 2012 SCC 32).

[45]        
The
causation picture here is far from clear, but when I weigh all of the evidence,
in its totality, I find that the plaintiff has met the burden of proof, on a
balance of probabilities, that the 2008 accident caused or materially contributed
to an aggravation of his chronic pain syndrome.

[46]        
Similarly,
the plaintiff cannot claim for any new injuries in the neck, shoulder or back
areas, but I am satisfied that he has proved that the 2008 motor vehicle
accident likely caused a flare-up of symptoms in these areas.

[47]        
Dr.
Gill writes that the plaintiff also sustained injuries to his right shoulder
from the accident. However, this was based on his comments that the plaintiff
never complained to him of right shoulder pain before the accident of 2008. I
prefer the opinions of Dr. Hawkins and Dr. Dreyer, orthopaedic
surgeons, who opine that the plaintiff’s shoulder issues are a result of
calcium deposits and degenerative changes and are not part of the plaintiff’s
chronic pain syndrome, nor are they connected to the 2008 accident.

[48]        
I
accept Dr. Hawkins’ opinion, which was unchallenged, that the plaintiff’s
carpal tunnel syndrome was likely caused by the 2008 accident.

[49]        
The
extent of aggravation of the plaintiff’s condition is not necessarily reflected
in the full increase of pain attacks. Absent the 2008 accident there was still
a real and substantial possibility of increased spasms in the future, due to
changes in his medication and the nature of chronic pain syndrome. These two
latter considerations must be taken into account in the assessment of any
damages awarded to the plaintiff for future damages.

[50]        
I
have no doubt that the plaintiff suffered from a “crumbling skull” in that his
pre-existing condition was manifest and disabling. Therefore, the defendants
are only liable to the extent the accident caused an aggravation, or an
acceleration of symptoms already apparent.

[51]        
The
parties here have agreed that the damages incurred in the 2008 accident are
divisible from the damages incurred in the 2002 accident. Therefore, the
devaluation approach is an appropriate method to determine the amount of pain
and suffering, loss of income, loss of function and need for care of the
plaintiff, if any, that is attributable to the defendants and not the
plaintiff’s pre-existing condition.

IV.           
Damages

A.             
Pain and Suffering, Loss of Enjoyment of Life

[52]        
Prior to the 2008 accident, Dr.
Gill had stated that the plaintiff was in constant pain with severe pain
attacks three to four times per month, and would never be pain free. He remained
permanently and totally disabled with severe restrictions on his physical
ability. Dr. Gill was checking him every three or four months.

[53]        
Drs. O’Connor and Sable listed
poor sleep, difficulties with concentration and memory, and erectile
dysfunction as some of the plaintiff’s complaints in 2006. These were echoed in
reports of Drs. Gill and Griffin. Dr. Melouche recorded in June 2008,
that the plaintiff’s left hip and abdomen pain was “pretty much unchanged”
since 2002.

[54]        
After the 2008 accident, Dr. Gill
referred to the plaintiff’s increase in pain since tapering opioid use. The
plaintiff’s check-ups increased from three to four times a year to one time per
month. His number of “better” days decreased drastically with corresponding
decrease in activities and increase in reliance on family members and friends.
The plaintiff underwent surgery for his carpal tunnel syndrome.

[55]        
The plaintiff submits that
$187,000 is a fair award for non-pecuniary damages suffered as a result of the
2008 accident.

[56]        
The defendant submits that an
award of $75,000 more properly reflects Dr. Chu’s opinion that the
plaintiff will, with time, revert to what he was like before the 2008 accident.

[57]        
I find that the plaintiff’s claim
for $187,000 non-pecuniary damages is inordinately high, given the case law and
the need to properly carve out only those damages caused by the defendant’s
negligence.

[58]        
The cases cited by the plaintiff (Smusz
v. Wolfe Chevrolet Ltd., 2010 BCSC 82; Shapiro v. Dailey, 2010 BCSC
770; Houston v. Kline, 2010 BCSC 1289; MacKenzie v. Rogalasky,
2011 BCSC 54; Eccleston v. Dresen, 2009 BCSC 332; Zawadzki v.
Calimoso, 2011 BCSC 45; Felix v. Hearne, 2011 BCSC 1236; and Cantin
v. Petersen, 2012 BCSC 549) are all instances of chronic pain syndrome
awards made from 2009 to 2011 in the range of $100,000 to $200,000 for
non-pecuniary damages.

[59]        
However, these cases all dealt
with the onset of chronic pain syndrome, not an aggravation of an already
existing chronic pain syndrome. The plaintiff here has already received a
substantial non-pecuniary award for the onset of severe chronic pain syndrome
and I must take that into account.

[60]        
In my view, $80,000 for
non-pecuniary losses is a reasonable award when considering the combined effect
of the plaintiff’s bi-lateral carpal tunnel syndrome, temporary aggravation of
neck and back pain, and aggravation of chronic pain syndrome.

B.             
Loss of Income, Past and Future

[61]        
The plaintiff claims that before
the 2009 accident, he had demonstrated his capacity to earn the maximum extra
income allowed under his long term disability and Canada Pension Plan coverage
(then $4,000, now $5,000) through his work as a marriage commissioner and
casual office worker. He testified that after the 2008 accident he was
unable to continue with office work and could only perform about 50 marriages
per year, for an income of about $2,500 per annum from this source. Therefore
he claims $2,500 per year until trial, for a total of $11,458.

[62]        
The plaintiff also claims $2,500
per year from trial until his marriage commission expires in 2016, and then
$5,000 per year from 2016 to age 65, for a present valued total of $57,730.

[63]        
Unfortunately, there is no
evidence to support the plaintiff’s claim for either past or future income
loss. In fact, the medical evidence is clear that the plaintiff lost his
capacity to earn income totally and permanently in the 2002 accident. He
has been compensated for that. There is no evidence that any residual earning
capacity was contemplated at the time he settled his claim in 2006.

[64]        
The plaintiff’s casual employment
with his wife’s employer prior to the 2008 accident was a result of an
unusually accommodating employer, Sandra Day. There is no evidence that any
other employment would have been available to him after his wife left the
employment of Ms. Day for another job. The plaintiff’s wife testified that
Ms. Day’s business no longer exists as it was, although she is still doing
some contract work in Prince George.

[65]        
The cases of Steenblok v. Funk (1990), 46 B.C.L.R.
(2d) 133; Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44; Kwei v.
Boisclair (1991), 60 B.C.L.R. (2d) 393; and Perren v. Lalari, 2010
BCCA 140, referred to in the plaintiff’s
submissions are consistent in their proposition that a plaintiff must always
prove a real and substantial loss of future loss first, before any
quantification of loss of earning capacity, either on an earnings approach, or
a capital asset approach.

[66]        
In my view, this is a case where
there is no real and substantial possibility of a future event leading to an
income loss. The plaintiff will continue to perform marriages until his
commission runs out in 2016. The ending of this commission is a matter of
regulation and has no causative connection to the 2008 accident.

[67]        
Furthermore, the cases cited by
the plaintiff deal with plaintiffs who had residual earning capacity in some,
but not all occupations, after their accident. Thus the courts in those cases
were trying to assess a quantum of damages for the lost opportunity of working
in occupations made infeasible by the plaintiff’s injuries.

[68]        
In the case at bar, there were no
occupations available to the plaintiff prior to his 2008 accident, only
minor remunerative activities, such as being a marriage commissioner, in which
he still engages. In my view, any loss of these types of activity, which may
involve an element of financial reward, is more properly compensated under the
heading of non-pecuniary damages and was a factor considered by me in awarding
the plaintiff non-pecuniary damages of $80,000.

[69]        
Thus the plaintiff’s claim for
income loss, past and future, is dismissed.

C.             
Future Care

[70]        
The plaintiff claims for a raft of
items under cost of care, ranging from exercise therapy to dog walking. The
plaintiff concedes that a 20% discount for contingencies is appropriate,
resulting in a total claim under this heading for about $400,000.

[71]        
As a starting principle, the items
claimed for under this head must be medically justified, although not medically
“necessary.” Furthermore, they must be reasonable in the sense that the
plaintiff will likely use the services or items in the future (Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.); and Zapf v. Muckalt
(1996), 26 B.C.L.R. (3d) 201 (C.A.)).

[72]        
In my view, the plaintiff has not
proved that his claim for a kinesiologist is reasonable. Although recommended
by Dr. Gill, it was not recommended by his physiatrist, Dr. Chu, who
wrote that the plaintiff:

…has tried everything I would
have recommended …nothing has helped in the many years before the 2008 accident
and since the 2008 accident …there are no further investigations necessary.

[73]        
Dr. Chu particularized the
treatments that he would have suggested, had the plaintiff not already
undergone them without success. I note that Dr. Chu did not consider
cognitive behaviour therapy which was recommended by both the St. Paul’s
Pain Centre and Dr. Gill. This is a reasonable future care item and I
award the sum claimed of $5,761 for cognitive behaviour therapy.

[74]        
The plaintiff claims $15,709 for
travel to Vancouver for management by Dr. Gill. At trial, Dr. Gill
testified that he would be satisfied to return to the pre-2008 regime of
checking on the plaintiff every three to four months. Therefore, the plaintiff
will incur no future loss arising from extra visits. The cost of extra visits
up to the time of trial is properly the subject of special damages, not cost of
future care.

[75]        
The rest of the plaintiff’s claim
under this heading is really a claim for loss of homemaking capacity, past and
future, and I will treat it as such (McTavish v. MacGillivray, 2000 BCCA
164). Any past expenses should be claimed as special damages and I will deal
with them under that heading.

D.             
Loss of Homemaking Capacity

[76]        
There were two reports from
occupational therapists recommending the provision of homemaking services to
the plaintiff. The biggest difference between them is that the plaintiff’s
expert witness, Ms. Gibson, assumed that the plaintiff would be in need of
these services until age 70, 75 or 80. This is not a reasonable assumption in
light of the evidence of prognosis. Dr. Chu reported that the plaintiff
will return to pre-2008 accident status at some point. Dr. Gill testified
that two years is probably too soon to expect recovery to his pre-2008 accident
status, but perhaps five years is reasonable.

[77]        
In my view, on the totality of the
evidence, it would not be reasonable to award the plaintiff for future losses
that extend past five years from trial. I accept Ms. Gibson’s list of
items which were submitted by the plaintiff as being reasonably expected to
incur as a result of the plaintiff’s decrease in function, but they must be
restricted to a period of five years. When each of these items is paid for
separately, it is much more expensive (almost double), than hiring one person
to perform these jobs. Ms. Gibson’s suggestion of using an agency person
at a rate of $24 per hour at an annual cost of $22,276.80 ($21,216 plus 5%
GST) is the most reasonable course of action.

[78]        
This figure should be reduced by
20% to $17,821.40 to reflect reasonable positive contingencies such as not
requiring as much assistance with meal preparation, transporting daughter, etc.,
on those days when the plaintiff feels capable of handling such things himself.

[79]        
The present value of $17,821.00
over five years is $14,756.00 per year, for a total of $89,108. I award the
plaintiff $89,108.00 for loss of homemaking capacity in the future.

E.             
Special Damages

[80]        
Since the accident on October 30,
2008, the plaintiff has incurred expenses for chiropractors, physiotherapy,
ambulance, travel to Dr. Gill, parking, lawn maintenance, car washes,
prescriptions, dog walking, housekeeping, taxi fares and food from restaurants.
The majority of these expenses meet the test for reasonableness, except
chiropractors, medication, dog walking and the cost of restaurant food.

[81]        
The plaintiff used chiropractors
before the 2008 accident, but according to his medical advisors it was contra
indicated for the injuries suffered in the 2008 accident, therefore it is not a
medically justifiable or reasonable expense.

[82]        
The medication for which the
plaintiff claims relates to erectile dysfunction. This was a health problem
suffered by the plaintiff before the accident of 2008 and is not a loss caused
by the defendants.

[83]        
At the time of the 2008 accident
the plaintiff had a dog and is entitled to the cost of walking that dog.
However, the accumulation of two more dogs after this date when he knew he
would not be able to exercise them is not reasonable and constitutes a failure
to mitigate. Any expenses arising therefrom were not caused by the negligence
of the defendants.

[84]        
The plaintiff claims $14,472 for
the cost of eating out or ordering in food two to three times per week. There
was no evidence as to how much the plaintiff used to pay for meals out before
the 2008 accident, or how much less his costs would have been if his family had
eaten at home. He simply claims, without receipts, the entire cost for his
whole family to eat out two to three times per week. This is not a reasonable
expense and I disallow it.

[85]        
The plaintiff also claims for unreceipted
taxi fares for him to escort his daughter to her dance and music lessons. From
the evidence, the plaintiff continued to drive his daughter after 2008 from
time to time notwithstanding his injuries. Furthermore, there were times before
the 2008 accident when the plaintiff was not able to drive her places.
Therefore I deduct 20% from the amount claimed, not as a contingency, but as a
more reasonable estimate of unreceipted expenses.

[86]        
The remaining expenses on the
plaintiff’s schedule are allowed. Thus, by my calculations, the plaintiff is
entitled to the following:

F.             
In-Trust Claim

[87]        
The plaintiff claims on behalf of
his wife, and friends Ryan Kim and Shannon Telford, for services rendered by
them to assist the plaintiff in housekeeping and transport of his daughter.
Mrs. Chow took on housecleaning for 30 months, Mr. Kim drove the
daughter to school about 200 times, and Mrs. Telford drove her about
300 times.

[88]        
I award Mrs. Chow $6,500 based on
$50 a week for 130 weeks; Mr. Kim, $1,000 as he lived next door and
had little or no additional gas expense; and Mrs. Telford $3,000 as she
had to travel much farther out of her way to transport the plaintiff’s daughter
to school.

V.             
CONCLUSION

[89]        
In conclusion, I award the
following damages to the plaintiff:

“Kloegman J.”