IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130906

Docket M084444

Registry:
Vancouver

Between:

Koosha
Rezaei

Plaintiff

And

Michael John Leland,
Wells Fargo Financial Retail Services Company Canada/
Societe Financiere Wells Fargo Canada, Services de Detail
and Marie Gwendelynn Trinidad Bersabal

Defendants

Before:
The Honourable Mr. Justice R. Punnett

Reasons for Judgment

[1]
This is a trial relating to damages only, liability having been
determined separately before Mr. Justice Myers in March 2011. The defendant was
held liable for the accident.

The Accident

[2]
On September 15, 2007 the plaintiff was riding his motorcycle northbound
on Steven Drive in West Vancouver, British Columbia. He was following a Toyota
Camry driven by the defendant Michael John Leland. The defendant on approaching
the intersection at Hidhurst Place pulled over to the right side of the road
and then abruptly executed a U-turn in front of the plaintiff. The plaintiff
attempted to brake and steer to the left but hit the defendant Leland’s vehicle
in a T-bone fashion on the driver side near the rear wheel area.

[3]
The plaintiff struck the car with his right handle bar and his hand,
breaking his wrist. An ambulance attended at the accident but the plaintiff
chose to take his motorcycle home. Upon doing so he noted his right hand was
badly swollen and he had difficulty moving his fingers. He went to the hospital
later in the day where x-rays revealed fractures of the radius and ulnar bones
of the right forearm near the wrist joint. An attempt to reset the bones
manually was unsuccessful. Surgery was performed the next day by orthopaedic
surgeon Dr. Victor Jando. A metal plate was inserted. It remains in his arm.

[4]
He was discharged from hospital with a supportive dressing. Once the
sutures were removed he carried out a home exercise program to increase his
wrist’s range of motion and strengthen his wrist. He used a ball to exercise
his hand. He did not attend any formal therapy.

Issues

[5]
The plaintiff claims for non-pecuniary damages, past loss of earning
capacity, future loss of income earning capacity and special damages.

Background

[6]
The plaintiff is 47 years of age. He is single and has no dependents. His
only health problem prior to the accident was intermittent back pain relating
to two motor vehicle accidents in 1994 and 1995 that never interfered with his
ability to work.

[7]
He was born in Iran and has two years of college in electronics. After
college he worked for two years in a BMW shop in Dubai. He came to Canada in
1989 and secured employment at a BMW repair shop in Toronto, Ontario. He
learned English over the next two years and at the same time worked full-time
and studied to qualify as a mechanic which he did within four years. In 1992 he
moved to Vancouver, B.C. He began working at Park Shore BMW as an auto mechanic
and remained so employed until 1996 when he left and opened his own BMW repair
business on Lougheed Highway. He incorporated and later named his business
Bimmer Haus Enterprises Inc. He is the sole owner and shareholder. While his
business has focused primarily on performing mechanical repairs he also has at
times purchased and repaired used BMW’s for resale.

[8]
The plaintiff operated his business without assistance until 2003 or
2004 when he hired his first employee, Masood Amirzad. Mr. Amirzad was
initially hired to clean vehicles and to organize and tidy the shop however he
learned to do repairs as well.

[9]
The plaintiff’s shop is approximately 1700 square feet in size. About a
year after Mr. Amirzad was hired the plaintiff added a second hoist. Over time,
as Mr. Amirzad became trained, the plaintiff would diagnose the work to be
done on a vehicle and Mr. Amirzad would carry out the work under the
plaintiff’s direction while the plaintiff repaired other vehicles.

[10]
Having Mr. Amirzad as an employee also allowed the plaintiff to expand
his business beyond repair work to include used car sales. He would purchase
used BMW’s at an auction and repair and detail them for resale. In 2006 he
purchased a frame-straightening machine to repair damaged vehicles for resale.

[11]
Prior to the accident both the plaintiff and Mr. Amirzad worked full-time.
The plaintiff worked 9-10 hours per day, 6 days a week, particularly in the
busy summer season, taking about 2-3 weeks holiday a year.

[12]
The plaintiff returned to work the day after the accident although he
was restricted to estimating and office work. He described his post-accident
work as initially limited to answering the phone and talking to customers,
diagnosing vehicle problems and doing what he could do with one hand. He stated
that Mr. Amirzad’s workload increased as a result of his inability to do
physical work.

[13]
Mr. Amirzad remained with him until the end of January 2008 when he left
his employment with the plaintiff in order to work closer to his home in Surrey,
B.C. and because of the increased pressure of the job. By that time the
plaintiff was able to handle much of the workload on his own, however only with
increased pain and by taking longer to complete repairs. He was not able,
without pain, to do the heavy work such as replacing an engine or rebuilding a
transmission. He could no longer do frame work on vehicles and has not used the
frame straightening machine since the accident.

[14]
He was unsuccessful in finding a suitable replacement for Mr. Amirzad and
could not afford to pay a BMW trained mechanic given their wage of
approximately $80,000 per year. He operated his business without any assistance
from February of 2008 to December of 2009.

[15]
During 2008 his wrist improved. However, after 6-8 months had passed he
stated that his recovery slowed and was minimal thereafter. By the end of 2008
he was suffering from tingling and numbness in his right small and ring fingers
at which time he said his recovery had plateaued. He returned to his general
practitioner Dr. Scott given the lack of improvement in his wrist. He was
prescribed painkillers and eventually was referred to a specialist, Dr. Goetz. The
plaintiff stated that the painkillers did not really help and that they had
side effects such as aggravating his stomach so he stopped using them. He would
take aspirin for the pain. He reported that he was informed by Dr. Goetz that
surgery on the ulna was possible but not on the radius. There was no evidence
that surgery would help.

[16]
In late 2009 the plaintiff decided to hire an employee as he was not
able to keep up with the work. He hired Alexander Russell who was not a
mechanic but the plaintiff planned to train him to do mechanical repairs and to
assist the plaintiff by doing the heavier tasks. By the end of the first year
Mr. Russell was doing most of the manual labour while the plaintiff diagnosed
the vehicles and supervised him.

[17]
The plaintiff testified that after 2010 his symptoms very slowly and
gradually worsened. He stated that up until 2010 he had been doing all repairs
but that the more he worked with his hand hammering, pulling on seized bolts or
using the air chisel and impact gun the more the pain increased and as a result
the more limited was his ability to do physical work. In 2010, because of the
pain, he reduced the amount of heavy physical work he was doing. He stated that
by the end of 2010 he would have pain every day if he used his hand for such
work and that if he did not use it the pain was tolerable. He stated that if he
worked with the hand the pain was worse for the next day or two and that the
pain interfered with his sleep. He stated he does not sleep at all 4-5 times a
month because of the pain and other nights he is awake for 3-4 hours because of
the pain.

[18]
In 2011 he said that the pain increased further. By the time of trial he
was not doing much of the physical work in the shop and for the most parted confined
his activities to running the business and diagnosing the work to be done by
Mr. Russell. He estimates that he now does only about one hour a day of actual
mechanic’s work. He concedes he can do more but limits his hours because such
work aggravates his wrist injury. As a result Mr. Russell does most of the mechanic’s
work.

[19]
Mr. Russell testified that he only observed the plaintiff having
problems with his right hand over the past year and one half. He stated for
example that when he saw the plaintiff use a hammer he would swing it a couple
of times, put it down and then open and close his fist and circle his wrist
wincing as if in pain.

[20]
The injury does not interfere with the plaintiff’s ability to perform
home activities nor does it affect his social life. However, he testified that
he used to ski 6-7 times a year but has not skied since the accident because
cold causes pain in his wrist and he is concerned that a further break could
cause irreparable damage. He also no longer plays tennis because it causes pain
and because he is afraid of falling and suffering another break. He admitted
that no doctor has told him to limit such activities and the decision to not
pursue them anymore was his decision alone.

[21]
In October 2008 the plaintiff was seen by Dr. Gropper, a noted
orthopaedic specialist in the area of hands and upper extremities, for an
independent medical examination. Dr. Gropper reported at p. 2:

Mr. Rezaei is now one year post surgery. He prescribes [sic]
persistent swelling, as well as the scar of surgery over the volar radial
aspect of the wrist. He has an aching pain within his wrist joint, generally
worse with activity. It is especially present with hammers and impact tools. He
states that the aching discomfort will last for approximately one to two days.

He describes some persistent numbness in the little, and
partly within the ring finger.

He has noted a residual loss of strength within his right
wrist and hand, as well as residual stiffness.

[22]
Dr. Gropper’s opinion as of October 2008 was that the plaintiff had
swelling, a scar from his surgery, restricted range of motion, and tenderness
“over the ulnar styloid, as well as the volar radial aspect of his wrist”. He also
had reduced grip strength, a possible “triangular fibrocartilage injury”, and
tenderness in his right little finger. He opined that the plaintiff was not
medically restricted from work or other activities on a daily basis, but that
he had issues with “tolerance and capacity”. He had the plaintiff perform a
series of tests to produce what is known as a Disability of Arm, Shoulder and
Hand Score (“DASH” score) and concluded that he had “mild to moderate
difficulty related to activities of daily living with an increase of moderate
to severe impairment related to his work as an auto mechanic or sports”.

[23]
As to the plaintiff’s prognosis, Dr. Gropper felt that his wrist
mobility had likely plateaued. He felt the plaintiff might be able to improve
his wrist strength by continuing with his exercises and receiving supervised
rehabilitation. He did not anticipate the need for further surgery. Finally,
Dr. Gropper commented on the plaintiff’s overall recovery prospects at p. 7:

Although some improvement would be anticipated with
rehabilitation, I believe that Mr. Rezaei will continue to have a permanent
impairment related to his right wrist that extends to his work and leisure
activity. In that regard, he is likely to continue to have aching pain and
post-activity pain related to high performance, such as using hammers or impact
tools, and there will be issues of diminished strength and stiffness within his
right wrist in the future.

I believe Mr. Rezaei is currently capable of continuing with
his work activity as an auto mechanic. He may, however, require assistance for
more high performance activity, and this need for assistance may increase in
the future.

Mr. Rezaei has had a fracture of the right distal radius. There
is a risk of degenerative arthritis within his wrist join in the future. However,
his pattern of fracture, as well as the restoration of the normal anatomical
landmarks of the wrist joint by the nature of his surgery would make the
probability of degenerative arthritis within the wrist joint in the future less
than 50%.

[24]
In October 2012 Dr. Gropper conducted a further independent medical
examination of the plaintiff. In his report of October 16, 2012 he noted
continued self-reported weakness in the plaintiff’s right hand, associated with
work activities, twisting, and grip. The plaintiff said wrist motion had not
changed, and a dull ache continued and that his wrist was affected by the
weather and more active mechanical work. He described decreased sensation in
his little fingers. Dr. Gropper noted a “full thickness radial tear of the
triangular fibrocartilage” had been discovered in the MR arthogram ordered by
Dr. Goertz in 2009. Dr. Gropper’s physical examination revealed tenderness, in
particular over the triangular fibrocartilage, a positive load test, and
decreased grip strength, but no signs of nerve impairment.

[25]
He opined that the accident caused the plaintiff’s injuries, and that the
plaintiff continues to demonstrate:

…a 20° loss of wrist extension. The scar over the volar
radial aspect is now well-healed and there is no swelling. He has some mild
tenderness over the distal portion of the plate. He continues to demonstrate
signs of possible triangular fibrocartilage injury with both foveal and 6R
tenderness, and a positive load test. His grip strength in the right wrist is
reduced.

[26]
His said that the plaintiff’s DASH score remained unchanged from his
2008 assessment. As to prognosis, Dr. Gropper notes that it is now 5 years from
the injury, and the plaintiff continues to be symptomatic with respect to his
right wrist. He said at p. 4:

…He describes weakness, stiffness and a persistent dorsal
ulnar wrist pain.

His current clinical examination would be consistent with a
possible triangular fibrocartilage tear that would account for his symptoms. I
believe that this was identified on his MRI examination.

Mr. Rezaei continues with home exercises but has not
completed any supervised rehabilitation program. I do not believe, at this
time, that there would be any significant benefit to a rehabilitation program.

He has a permanent impairment related to his wrist and hand
that extends to work and leisure activity. I believe that the issues of
weakness and aching pain that he describes, related to high performance
activities such as using hammers or impact tools, as previously identified,
will continue and I do not anticipate a significant improvement in his current
status in the future.

I believe, however, that he is capable of continuing with his
self-employed work activity but does still require assistance for more high
performance activity, as previously identified.

The issues related to posttraumatic degenerative arthritis
are unchanged.

[27]
Dr. Gropper testified that a wrist injury, similar to that sustained by
the plaintiff, may in certain circumstances worsen over time but such
circumstances did not apply to the plaintiff. He admitted that he would not
have anticipated that the plaintiff’s wrist would have worsened as it has.

[28]
It is not seriously disputed that the plaintiff was a credible witness. The
defence notes that there are some inconsistencies in his evidence specifically
regarding the severity of his complaints when compared to his actual function
and work capabilities after the accident. I accept that despite some minor
discrepancies he was endeavouring to be truthful.

[29]
I am satisfied that he is a hardworking and stoic individual. The
defendant does not dispute this. He came to Canada as an immigrant who did not
speak the language. He learned English and has been employed since his arrival.
He has never been in receipt of Employment Insurance or social assistance. He has
always worked hard. Two earlier accidents that caused him back pain did not
prevent him from working.

[30]
That said I must still consider how significant an impact the accident
has had on his use of his right wrist. I will comment further on that issue
when considering his damage claims.

[31]
The defendant submits that there has been no explanation for the fact
that the plaintiff’s condition plateaued by 2009 and that for approximately 2
years remained the same only to worsen in 2011. There is no medical evidence or
other evidence indicating that there was an intervening event that would cause
the worsening of symptoms described by the plaintiff. However Dr. Gropper noted
in his 2008 report that the plaintiff would likely suffer from a “permanent impairment
to his right wrist”, consisting of aching pain and post-activity pain related
to using hammers or impact tools, and stiffness and diminished strength.

[32]
Dr. Gropper also noted in his October 2012 report a “possible triangular
fibrocartilage tear that would account for his symptoms”.

[33]
The evidence of the plaintiff is that the symptoms after plateauing have
become worse in the past two years. He says that the effects of the injury
while plateauing have never completely disappeared. That however is largely dependent
on the subjective statements of the plaintiff. In such circumstances “the Court
should be exceedingly careful when there is little or no objective evidence of
continuing injury, and when the complaints of pain persist for long periods
extending beyond the normal or usual recovery period” (Butler v. Blaylock
Estate, [1981] B.C.J. No. 31 (S.C.) at para. 18). With that warning in mind
I accept that the plaintiff’s wrist pain has in fact worsened. I do so based on
my assessment of the plaintiff as well as the medical evidence of Dr. Gropper
and the observations of Mr. Russell.

Non-Pecuniary Damages

[34]
The British Columbia Court of Appeal in Stapley v. Hejslet, 2006
BCCA 34, considered the factors that will support an award of non-pecuniary
damages:

[46]      The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of
pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of
life;

I would add the following factors, although they may arguable
be subsumed in the above list:

(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: Giang
v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[35]
The factors noted in Stapley must be related to the particular
circumstances of the plaintiff.

[36]
Prior to the accident the plaintiff was in good health. While in the
past he had suffered from a whiplash injury to his neck and had some lower back
pain, the former was resolved and the latter was intermittent and in any event
had never interfered with the plaintiff’s activities or ability to work.

[37]
The defence notes a few inconsistencies but do not say he is not
credible. The emphasis of the defence has been on the limited treatment, the
fact that the injury has not affected the plaintiff’s social life or ability to
do household chores and evidence of others that the impact of the injury has
not been noticeably disabling.

[38]
While I accept that working as a mechanic exacerbates his pain I am not
satisfied that it is as disabling as he says it is. I say this because his
employee Mr. Russell noticed that the plaintiff appeared to have a problem
with his wrist but did not say it prevented him from doing the work. I note as
well that the evidence of the plaintiff at trial and his statements to Dr.
Gropper do not establish that mechanical work that does not involve heavy
wrenching, impact drills and the like exacerbates his pain. I am satisfied that
it is the heavier work that creates the problem. That work, as I will discuss
later, is a small component of the plaintiff’s work as a mechanic.

[39]
In addition the plaintiff’s decision to cease playing tennis and skiing
reveal a tendency to exaggerate the significance of his injury and its effect. The
opinion of Dr. Gropper as well is that playing tennis or skiing would not
risk re-injury, that is, they would not create a medical risk. In his opinion
the issue however was that such activities could aggravate the wrist pain. I do
not dispute that the plaintiff believes what he says about the effect of heavy
work on his wrist. Generally however the plaintiff’s self-imposed restrictions
on his activities reveal a cautiousness that appears as well to be a factor in
the extent to which he works as a mechanic.

[40]
As a result I find he suffers from pain in his right wrist, exacerbated by
its use. At times the pain interferes with his sleep. His right dominant hand
is now weaker and his grip capacity is lessened. He is less able to carry out
his work as a mechanic due not so much to the physical limitations of his right
wrist but rather the pain of doing so. There is no evidence that his wrist will
improve further. The issue of possible arthritis is speculative, as although it
is a possibility, there is no evidence of its possible impact. There is no
medical evidence he cannot do activities such as tennis and skiing.

[41]
I accept that his life revolves around his work as a mechanic. It is his
profession, his source of identity and a vocation that he enjoys and works long
hours at. Counsel for the plaintiff submits that as a result he has suffered a
loss of work satisfaction, a factor of considerable significance given the
importance to him of his work.

[42]
The plaintiff refers to the following authorities on the issue of
non-pecuniary loss: Lowe v. Larue (1998), 58 Alta. L.R. (3d) 142 (Q.B.);
Star v. Ellis, 2007 BCSC 512; Lumanlan v. Sadler, 2008 BCSC 1554;
Perez (aka Gillespie) v. City of Vancouver, 2002 BCSC 1773;
Mineault v. Takhini Hot Springs Ltd., 2002 YKSC 48.

[43]
In Lowe the young plaintiff was a gifted trumpet player whose ability
to pursue her career in music was impaired such that she could no longer pursue
her career plans. The court found that the accident had therefore taken away
something very special in the life of the plaintiff. Despite noting “the doctor
can’t explain the injury and why it hasn’t improved” (para. 46), an award of
$65,000 in general damages (approximately $87,000 adjusted for inflation) was
awarded.

[44]
In Star the plaintiff was a police officer, a vocation he had
always wanted. He had intended to pursue a career in “tactical operations”. He
suffered an injury to his dominant hand resulting in some limitations in
movement and grip strength. It was accepted that these limitations did not
preclude him from qualifying for a career in “tactical operations”. However, he
decided not to pursue that career because he did not “trust” his hand to
function fully in critical situations. On appeal, (2008 BCCA 164), MacKenzie
J.A. for the court stated:

[8]        The trial judge assessed the effects of the injury
on Sergeant Star’s career prospects at para. 17 as:

[17]      I hasten to say that the impact on Ms. Lowe is
greater than that upon Sgt. Star. One’s ability to play the trumpet is
obviously impaired by an injury to the hand. Being a trumpet player, however,
is different from being a police officer. The dominant hand is critical to a
trumpet player. While an injured hand may interfere with many aspects of police
work, many other aspects of police work will not be affected. In other words, a
police officer may need a strong hand to fire a gun, or ward off a belligerent
suspect, but such an injury will have no impact upon supervisory,
investigative, administrative or educational aspects of police work.

[9]        In 2005, Sergeant Star successfully applied for a
position in the Vancouver Police Department School Liaison Office. While he
gets satisfaction from that position it was not what he wanted to do with his
career. He misses active adrenalin situations and testified that “his life
plan as a police officer has been thwarted”. The trial judge accepted this
evidence and commented (at para. 30): “the psychological sequelae of his
injury are greater than the physical result. There is no doubt he has a reduced
capacity in his right hand. But I find that it is not as serious a physical
limitation as he would have the court believe”.

[10]      Later in his reasons the trial judge concluded that
Sergeant Star was exaggerating the significance of his injury. He based that
conclusion on several factors. Sergeant Star made a “perfect score”
on grip strength in a post-accident physical test. He continued on the dog
squad for two years after the accident and then worked for two more years on
patrol in the downtown eastside. He re-qualified for his firearms handling
certificate, and no police officer had concerns about Sergeant Star’s abilities
on the dog squad or CET.

[13]      The appellant contends that these awards are
unsupported by the evidence. He argues that the medical evidence does not
support a finding that the injury was occupationally disabling for tactical
service and the trial judge concluded Sergeant Star was exaggerating the extent
of the physical disability. On this basis the appellant contends that Sergeant
Star’s transfer to the School Liaison Office cannot be reasonably attributable
to his injury.

[14]      … In my view, the
appellant’s submission overlooks the psychological dimension of the disability.
As I read the trial judge’s reasons he accepted that Sergeant Star’s voluntary
transfer to a less stressful and physically demanding position reflected his
lack of confidence in his physical abilities after the accident and that he
would probably have served on a tactical squad for five years if the accident
had not intervened. While the extent of the physical disability might not
objectively have precluded tactical squad service, his lack of confidence
resulting from that disability did deter him and his decision to transfer was
made in good faith against his career aspirations. Tactical squad service
requires psychological as well as physical conditioning to meet the stress of
highly charged events. The trial judge accepted that the psychological sequelae
were part of the disability and there was evidence to support that finding. I
do not think that expert psychological or psychiatric opinion was required to
support the claim in the circumstances. Sergeant Star’s transfer against his
career preference was tangible support for his evidence. The trial judge’s
awards under these heads of damage are otherwise unexceptional and, in my view,
there are no grounds to disturb them.

[45]
The trial judge’s award of $55,000 in non-pecuniary damages (just under
$61,000 adjusted for inflation) was upheld.

[46]
In Mineault the plaintiff suffered a broken wrist that continued
to cause pain at trial some two years after the accident, the pain being
exacerbated by the lifting of objects or using her wrist for repetitive
movements for any period of time. Her wrist mobility was slightly but
permanently limited and likely to deteriorate as she aged. The surgery and
treatment was significantly more invasive and painful than the case at bar. An
award of $45,000 for non-pecuniary damages was made.

[47]
Counsel for the plaintiff submits that the impact of the plaintiff’s injuries
on his work satisfaction and his life in general supports an award in the range
of $65,000 to $75,000.

[48]
Counsel for the defendants submits an award of $35,000 is appropriate
and refers to: Perez; Lumanlan; Michaud v. Machtaler, 2004
BCSC 829; Borth v. Lee, 2005 BCSC 1517; Mawji v. Hendry, 2007
BCSC 1880; Shergill v. Vuong, 2008 BCSC 784; Patoma v. Clarke, 2009
BCSC 1069.

[49]
In Perez the 42-year-old plaintiff suffered a severely comminuted
fracture of her left wrist. Two surgeries were required. She suffered from a
reduced range of motion and persisting pain and stiffness. She was off work for
a period of time and had difficulty returning to her usual employment. The
award for non-pecuniary damages was $50,000.

[50]
In Michaud the plaintiff had a fracture of the scaphoid bone in
the right wrist and soft tissue injuries to the neck and lower back. The wrist
after removal of the cast remained painful for several months with ongoing
limitations and occasional pain. The award was $35,000 after taking into
account the plaintiff’s failure to follow his doctor’s advice to undertake an
exercise program.

[51]
In Borth a 48 year old plaintiff sustained a large central tear
of the triangular fibrocartilage requiring two surgeries. The wrist never fully
returned to normal and the plaintiff could not do most of her pre-accident
activities as well as before. She was awarded $35,000 for pain and suffering.

[52]
In Mawji the plaintiff had an injury to her right wrist that
affected her ability to return to work and recreational activities. She had
surgery on her wrist. The award was $45,000 for non-pecuniary damages.

[53]
In Lumanlan the plaintiff suffered serious injuries to her
non-dominant hand requiring seven surgeries. She had weakened grip strength and
some reduction in tolerance for use of the injured hand. The injuries were more
severe than the case at bar and the award was $50,000 for non-pecuniary
damages.

[54]
Shergill involved a plaintiff with a fibrocartilage tear in the
right wrist that required surgery, which was delayed at the choice of the
plaintiff until her children were older. She was prevented from doing
activities that she enjoyed before the accident. She was awarded $35,000 in
non-pecuniary damages.

[55]
Finally, in Patoma the plaintiff suffered a fracture of his left
wrist. Surgery with external pins was required. He was unable to return to
playing tennis. Non-pecuniary damages of $38,000 were awarded.

[56]
The defendants submit that the plaintiff suffered a fairly uncomplicated
fracture of the wrist that required one surgery and no further treatment or
formal therapy. They note that the plaintiff was working full-time without
assistance within 5 months of the accident and for no apparent reason the
symptoms became worse in 2011 after plateauing for two years.

[57]
As I have noted the credibility of the plaintiff was not challenged in
any significant way. He returned to work the day after surgery. He continued to
work to the extent he thought possible. I accept that he is a stoic individual.
I accept that he has continuing pain. There is no basis to find that he is deliberately
exaggerating his incapacity or desires to withdraw from his employment.

[58]
While others may be capable of working through pain in a manner
differently than the plaintiff I accept that for him the pain does affect him. He
continues to suffer from continuing pain and its effect on his career as a
mechanic. While he has not been affected to the same extent as the young woman
in Lowe he clearly has been affected in a way similar to the plaintiff
in Star.

[59]
While I accept it has not affected his ability to do his chores around home,
the requirements of such are different than those of a mechanic both with
respect to the degree of effort, the strength required and their duration. It
is the demands of the job including use of equipment as well as the hours
involved that precipitate the pain suffered by the plaintiff.

[60]
The extent of the disability however must, in my opinion, be restricted
to those heavier aspects of the plaintiff’s work. In my view the evidence only
establishes that a relatively small portion of his mechanical duties create
pain and that with the help of an assistant the plaintiff is capable of doing
the majority of his work as a mechanic. I cannot accept therefore that, for
example, the current use of only one hoist is due to the injuries suffered.

[61]
Taking into account the circumstances of this plaintiff as well as the
authorities referred to I am satisfied that an award of $45,000 is appropriate
for non-pecuniary loss.

Loss of Working Capacity: Past

[62]
As noted earlier the plaintiff operated through a corporation; he was
and is the sole director, officer and shareholder. His business has relied on
two sources of income. The first is as a BMW repair shop, the second as a used
car dealer.

[63]
It is not in issue that the plaintiff is personally entitled to recover
a loss suffered by his company given it is a company he controls provided the
loss is proven and is linked to the injuries suffered: Everett v. King
(1982), 34 B.C.L.R. 27 (S.C.) at p. 30, aff’d (1983) 53 B.C.L.R. 144 (C.A.).

[64]
The plaintiff acknowledges that he continued to pay himself the same
management and employee salary after the accident as before however submits
that that does not mean he did not lose income or the opportunity to earn more
income. He also acknowledges that because his revenues and expenses varied from
year to year his corporate tax returns and financial statements are of limited
value in assessing his past losses. He submits this is because of the nature of
his business and the variation in its revenues and expenses as car purchases
for resale were not tracked year to year but simply reported in the year
purchased and then in the year sold. When a vehicle was purchased for resale it
was recorded as an expense in the year of purchase but the revenue was not
recorded until the year of sale.

[65]
As a result his claim for past income loss does not lend itself to mathematical
calculation. It invokes the question of how his capacity to generate revenue
has been compromised by the injury. He notes that for the first several months
after the accident he was limited in his work activities. He submits that inevitably
his business generated less income as a result. He notes that since he now must
have an employee the expenses of that employee reduce the profitability of the
company. He estimates his loss as a range of $10,000 to $20,000 per annum and advances
a claim for past loss of earning capacity in the sum of $60,000-$75,000 for the
years 2008 to 2012.

[66]
The defendant submits that the plaintiff has failed to prove that the
injury suffered in the accident caused any type of loss of income or loss of
opportunity to earn income.

[67]
The assessment of a claim for past loss of capacity was considered in Smith
v. Knudson, 2004 BCCA 613, where the court cited Gill v. Probert, 2001
BCCA 331, where Mackenzie J A. said the following in relation to the claim by
the plaintiff for pecuniary loss prior to trial:

[9] Athey v. Leonati [1996] 3 S.C.R.
458, relied on by the plaintiff, held that past events such as negligence and
causation between fault and injury must be proved on a balance of probabilities
and thereafter treated as certainties. However, Mr. Justice Major stated (at
para. 27) that hypothetical events need not be proved on a balance of
probabilities, and they are simply to be given weight according to their
relative likelihood. In assessing hypothetical events there is no reason to
distinguish between those before trial and those after trial. In making an
allowance for contingencies the trial judge was assessing the hypothetical
events that could have [a]ffected the plaintiff’s employment earnings,
according to the assessment to their relative likelihood.

[Emphasis added]

[68]
In Adamson v. Charity, 2007 BCSC 671, Mr. Justice Bauman (as he
then was) considered the legal principles that apply to a claim for a loss of
working capacity:

[251]    … Justice Smith revisited these in Rowe v.
Bobell Express Ltd., 2005 BCCA 141.

[252]    Justice Smith begins his analysis in Rowe
so:

[1]        This appeal raises the question of the true
nature of a claim for loss of earning capacity in an action for damages for
negligently-inflicted personal injury. Is it a claim for loss of income the
plaintiff would have earned but for the injury, or is it a claim for loss of
the value of work that the plaintiff was disabled from doing? The trial judge
held, in effect, that it is the latter. For the reasons that follow, I think
the trial judge reached the correct conclusion and I would dismiss the appeal.

[253]    Professor Cooper-Stephenson (Personal Injury
Damages in Canada, 2d ed. (Toronto: Carswell, 1996)) would prefer to
use the term “loss of working capacity” because (at 205):

… It now seems clear that neither the notion of “earnings”
nor “earning capacity” underlies this head of damages, but rather
“work value” or “working capacity” in a sense that
evaluates all the pecuniary losses that flow from the plaintiff’s inability to
work. …

[Footnote omitted]

[254]    But terminology aside, Justice Smith adopts
Professor Cooper-Stephenson’s approach (at paras. 30 and 31 of Rowe):

[30]      Thus, in my view, a claim for what is often
described as “past loss of income” is actually a claim for loss of
earning capacity; that is, a claim for the loss of the value of the work that
the injured plaintiff would have performed but was unable to perform because of
the injury.

[31]      Evidence of this value may take many forms. As was
said by Kenneth D. Cooper-Stephenson in Personal Injury Damages in Canada,
2nd ed. (Scarborough, Ont.: Carswell, 1996) at 205-06:

… The essence of the task under this head of damages is to
award compensation for any pecuniary loss which will result from an inability
to work. “Loss of the value of work” is the substance of the claim –
loss of the value of any work the plaintiff would have done but for the
accident but now will be unable to do. The loss framed in this way may be
measured in different ways. Sometimes it will be measured by reference to
the actual earnings the plaintiff would have received; sometimes by a replacement
cost evaluation of tasks which the plaintiff will now be unable to perform;
sometimes by an assessment of reduced company profits; and sometimes by
the amount of secondary income lost, such as shared family income.

[Underlining by Smith J.A.; other emphasis in original].

[69]
The financial evidence of loss of capacity to work in this case is
problematic.

[70]
The defendant placed in evidence the expert report of Douglas G.
Hildebrand of Columbia Pacific Consulting. He was asked to provide his opinion
as to whether there was any indication of a reduction in the plaintiff’s
business income or an increase in expenses related to employee salaries in the post-accident
years.

[71]
Mr. Hildebrand reviewed the personal income tax returns of the plaintiff
and the corporate tax returns for the company over the past several years. He
took into account the differences arising from years where the plaintiff had an
employee and years where he did not. He opined at pp. 5-7:

·
Compared with 2005, the total income in 2007 was about 27% lower.
In light of the date of the accident (i.e., September 15, 2007), any negative
impact from the accident would likely be negligible for fiscal year ending September
30, 2007. As such, this decline does not appear to have too much bearing with
the subject accident.

·
There is a noticeable decline in total income level in the year
immediately after the accident (i.e., 2008). However, without knowing the contributing
factors resulting in the decline of the same in 2007, it is difficult to
estimate the impact form the subject accident. As it can be observed from Table
C, the employee salaries were $28,484 in 2005. In 2007 this expense increased
by 57%. Since this increase is unlikely to be caused by the accident given the
date of the accident, the continued increase in 2008 in this expense could be
partially related to the same cause which resulted in the sharp increase in
2007.

·
It can be observed from Table 1 (attached) that although there
have been fluctuations in the business’ Sales and Revenue over the 2005,
2007-2011 period, the gross profit does not appear to be affected by the
subject accident.

·
Compared with its level in 2008, there is a decline in Sales and
Revenue in 2009. This decline, however, may or may not be accident-related
considering the global economic recession which started in the fall of 2008 and
its impact on the auto industry.

·
It can be observed from Tables B and C that in the most recent
two years, namely, 2010 and 2011, the total income (in 2013 dollars) surpassed
that in 2005, the best year prior to the accident among the available
observations.

·
It can be observed from Table D that the employee salaries (in
2013 dollars) in 2010 and 2011 dropped to below its level in 2005.

In view of the above observations, I am unable to establish
any ongoing income loss or increase in employee salaries. Any negative impact
arising from the accident appears to be short term in nature based on the available
information. In order to determine the accident-related past loss, further
information is required with regard to the Plaintiff’s business operation,
including 2006 and subsequent years.

[72]
He noted gross earnings for the company from 2005 to 2011 as follows:

Table B. Review of The Plaintiff’s Total Income From
His Business*
(Based on Wage Expense from Fiscal Year 2009)

*:  Company’s fiscal year end to September
30, 2005-2009; and December 31 for 2010 and 2011.

[73]
The plaintiff in response provided a report from Peter Sheldon of
Associated Economic Consultants Ltd. He took no issue with Mr. Hildebrand’s
review of the plaintiff’s self-employed income but did include 2006.

[74]
He stated at p. 2:

…it is apparent that total income … decreased in 2006, 2007
and 2008 (the year after the accident) relative to 2005. I am unable to provide
an opinion as to the extent to which the reduction in Mr. Rezaei’s income in
2008 was due to the accident.

I agree with Mr. Hildebrand that the economic recession in
2008 may have been a contributing factor to the decline in sales. That being
said, it is not clear to me that the reduction in retail trade (motor vehicles
and parts) in Canada shown on page 6 of Mr. Hildebrand’s report (Figure 1) is
necessarily a predictor of the profitability of Mr. Rezaei’s business. This is
because I understand that Mr. Rezaei’s business involved the repair and sale of
used vehicles.

…I provide a graph of the retail trade of use car dealers. This
has a different profile that the total retail sales (which includes new car
dealers, used car dealers, other motor vehicle dealers and automotive parts and
tire stores). You will see from Figure 1 that used car dealer’s sales
increased in 2008 and 2009, declined in 2010 and increased again in 2011. There
was no decrease in the retail trade of used car dealers in 2008 and 2009. The
values shown in Figure 1 do not support the contention that the
recession in 2008 was responsible for the decline in Mr. Rezaei’s income in
that year.

[75]
The plaintiff submits that there has been a loss of past capacity or
opportunity and suggests that the loss can be assessed on the basis of the
replacement cost of his services represented by the cost of his employee Mr.
Russell.

[76]
It is not disputed that there was a reduction in 2008 of the company’s
gross income. While there was a decline in his income from 2005 to 2008 the
decline from 2007 to 2008 was substantially greater than in previous years. Mr.
Sheldon stated he was unable to “provide an opinion as to the extent to which
the reduction in the plaintiff’s income in 2008 was due to the accident”. Mr.
Hildebrand’s opinion generally disregards any loss of income in 2007, and notes
the difficulty in estimating how much the accident could have contributed to
the loss of income in 2008.

[77]
The defendant notes that on discovery the plaintiff was asked the
following questions and gave the following answers:

Q.        So have
you had any economic or income loss at all since the accident?

A.         No, because I put up with the pain.

Q.        Has the
company, Bimmer Haus, had any income loss at all since the accident?

A.         No.

[78]
On cross-examination at trial he stated that he had misunderstood the
question and that while he did not suffer any personal income loss the company
in fact did as illustrated by the accounting information showing reduced gross
income. I accept that explanation.

[79]
The plaintiff makes a profit on Mr. Russell’s work, or as the
plaintiff’s counsel puts it, there is a value added. Unfortunately there is no
evidence of the charge out rate for Mr. Russell that would enable a calculation
of that value. Mr. Russell earns $18.00 per hour (approximately $38,000 per
annum). There is some evidence that the plaintiff’s company provides services
at a lesser charge than a dealership however no details are in evidence.

[80]
The defendant submits that from the time Mr. Amirzad left in January
2008 until the hiring of Mr. Russell in late 2009 the plaintiff was responsible
for 100% of the work that came into his shop. He gave evidence that he had not
turned down any work since the accident leading to the inference that any work
to be done was in fact done by him. Under cross-examination he admitted that he
had been able to do all aspects of the job including the heavier work but the
latter would cause an increase in his wrist pain. During his discovery the
plaintiff confirmed he worked the same amount after as before the accident and
that he took no time off after the accident.

[81]
The defendant also points out discrepancies between the evidence of the
plaintiff respecting what work he did and what Mr. Amirzad did, and the fact
that Mr. Amirzad did not notice he was limited in any way. Further, Mr.
Russell noted on cross-examination that when he first started working for the
plaintiff he saw the plaintiff using the impact gun, air chisel, and heavy
hammer frequently, all with his right hand.

[82]
I find that the accident contributed to a loss of working capacity
evidenced by a loss of income in 2008. After the accident it was not until 2008
that the plaintiff returned to doing physical mechanical work and around that
time Mr. Amirzad left his employment leaving the plaintiff to do all work for
the remainder of 2008. Any discrepancies as to what the plaintiff could do and
what Mr. Amirzad did I find are matters of degree and are not contradictory. In
addition the observation of the defendant that Mr. Amirzad did not know the
plaintiff’s wrist had been injured nor observe any limitations shown is not
inconsistent with the evidence of the plaintiff that he would do work when
necessary but would bear the burden of the pain then and afterwards. Given his
evidence I am satisfied that reduction in 2008 gross income was in part
attributable to the accident as the injury slowed the speed at which he could
work and the limitations it imposed on certain types of work.

[83]
In 2009 he continued to work on his own but in that year his gross
income was back up to the 2005 level. His evidence was that by 2009 his wrist
had plateaued and he was back working as a mechanic. Thereafter he operated the
business on his own until Mr. Russell was hired.

[84]
The defendants note that Mr. Russell stated that there had been a slow
period in the business but did not know when that was. They submit that such a
slow down or the decision of the plaintiff to attempt more car sales, which was
not successful, could explain a reduction in income.

[85]
They also note that after the accident and the loss of Mr. Amirzad the
plaintiff did all of the work himself for two years and as a result submit that
the facts do not support a loss of income since 2011, and finally submit that
the plaintiff has failed to prove any type of loss of income or loss of
opportunity to earn income.

[86]
Any loss in income is attributable to the heavy work that the plaintiff
cannot do or that causes him to suffer afterwards. However, the heavy work is a
small portion of the work that he does; he has not said that doing his normal
mechanical work that does not involve use of impact tools, heavy wrenches etc.
is the problem. The example he gave is of doing a job and getting 90% of it
done without running into the problem created by heavier work. While that was
not an estimate of the division of work generally I accept that it is a
reasonable assessment.

[87]
In the years after 2008 it does not appear that the plaintiff’s company
suffered a loss of gross income. His company reached 2005 levels by 2009 and
thereafter surpassed them. That being said, I recognize that in 2009 the plaintiff
was working at a diminished capacity to complete all of the work on his own. It
is for this reason that he hired Mr. Russell to complete the heavier tasks
thereafter.

[88]
The defendant’s submission that there was no loss of past income ignores
the fact that after the accident the plaintiff could not do mechanical work
initially and that when he did return to such work it took him longer and
caused him pain.

[89]
While the replacement cost of the plaintiff’s loss assessed as a portion
of Mr. Russell’s salary is a possible means of approaching quantification
of the loss Mr. Russell also brings added value as both men were working
full-time, doing their respective work. Having Mr. Russell on staff may in fact
allow the plaintiff’s company to grow. However, there is a lack of evidence of the
true net cost of adding Mr. Russell as an employee.

[90]
I am not satisfied that the evidence permits quantification of the loss
claimed on the basis of the cost arising from the hiring of a replacement
mechanic.

[91]
I find that part of the decrease in income in 2008 was caused by the
accident but that there was no loss proven that is capable of mathematical
calculation. A fair estimate of the plaintiff’s total net loss of income before
taxes taking into account the decreased income in 2008 was partly due to the
accident and also the plaintiff’s reduced capacity thereafter reflecting a loss
of the value of the work the plaintiff was disabled from doing is $25,000
before taxes.

Future Loss of Capacity

[92]
The parties are significantly apart on the issue of an impaired capital
asset, that is, the ability of the plaintiff to earn income in the future. The
plaintiff seeks an award of $200,000 to $300,000 after contingencies are
accounted for. The defendant submits that no award should be made.

[93]
The principles to be applied when determining a loss of earning capacity
have been the subject of much judicial consideration. In Smith the court
said this:

[28]      There are a number of decisions of this Court which
accord with what was said by the Supreme Court of Canada concerning proof of
future and hypothetical events. One of those cases is Steenblok v. Funk
(1990), 46 B.C.L.R. (2d) 133, [1990] 5 W.W.R. 365. In that case, Hutcheon J.A.,
for the majority, after making reference to a number of authorities including Mallett
v. McMonagle, supra; Janiak v. Ippolito, supra;
Schrump v. Koot (1977), 18 O.R. (2d) 337; and Kovats v.
Ogilvie, [1971] 1 W.W.R. 561, referred with approval to Smith and
Bouck, Civil Jury Instructions (1989) on the instructions to be given to
a jury about the different standards of proof. The instruction, which is set
out below, was said to be modelled on what was said by Lord Diplock in Mallett
v. McMonagle, supra:

COMPARISON WITH STANDARD OF PROOF FOR ACTUAL EVENTS

5.         In deciding what actually happened in the past,
you must weigh the evidence and reach conclusions on a balance of
probabilities. Anything more probable than not you should treat as certain.
When you are asked to determine (what might happen in the future/what would
have happened in the past but for the (injury/loss), you must use a different
method of proof. First you must decide if the event (is/was) a real
possibility, you must then determine the actual likelihood of its occurring (at
138).

[29]      That instruction
accurately reflects the distinction made in the case authorities between proof
of actual events and proof of future or hypothetical events. What would have
happened in the past but for the injury is no more “knowable” than
what will happen in the future and therefore it is appropriate to assess the
likelihood of hypothetical and future events rather than applying the balance
of probabilities test that is applied with respect to past actual events.

[94]
In Perren v. Lalari, 2010 BCCA 140 at para. 32, Garson J.A.
stated:

[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.

[95]
The plaintiff has established that there is a real and substantial
possibility that his earning capacity has been impaired given his inability to
perform heavier mechanical work because of pain.

[96]
Perren requires that I further find that there is a real and
substantial possibility of a future event leading to an income loss. In this
instance if the plaintiff was unable to hire a mechanic (as has occurred in the
past) or if he had to pay a fully accredited mechanic at substantial cost, he
will suffer a loss of income. I therefore conclude there is a real and
substantial possibility of a future income loss.

[97]
As noted by Mr. Justice Erkhe in Cheung v. MacDonald et al, 2004
BCSC 222 at para. 85:

[85]      The proper question
under this head of damages is not simply whether a plaintiff will suffer an
actual wage loss, but rather whether there has been an impairment of his
income-earning capacity. This latter approach treats the ability to earn income
as a capital asset, and the proper question is then whether that asset has in
any way been diminished by reason of the defendant’s negligence.

[98]
As was the case in Cheung, where the plaintiff dentist could work
but only with pain, I accept that the plaintiff can perform the work of a
mechanic but that doing heavier work causes him pain and that the pain does not
cease when he stops. Forcing himself to do the heavier work causes ongoing pain
which then interferes with his sleep and carries forward into his next work day.
The fact that he might force himself to do such work does not mean that his
capacity to work as a mechanic has not been diminished. I accept that the
reduction in his ability to do certain tasks and the increase in the time it
takes to do them has diminished his ability to work as a mechanic.

[99]
Justice Erkhe in Cheung also stated at para. 89:

[89]      I should add that in my
view, the loss of ability to work without pain and exhaustion is not something
that has already been compensated under the head of non-pecuniary damages. What
was at issue there was, in part, the loss of the satisfaction and joy that the
plaintiff previously derived from his work. What is being compensated here is
something different: the loss of the capacity to work as a pediatric dentist
without pain and exhaustion (see Gojevic v. Philpott, 2002 BCCA
483, at [paragraph] 10; and Ayles v. Talatasin, 2000 BCCA 87).

[100]  The
plaintiff submits that he is entitled to an award for loss of capacity on the
basis that he is no longer competitively employable as a mechanic. In support
of this claim plaintiff counsel cites cases where the plaintiff was unable to
demonstrate a future loss of income on the evidence, but where the court made
awards on the basis of diminished capacity more generally (Hildebrand v.
Musseau, 2010 BCSC 1022; Mineault; and Lumanlan). To a similar
effect is Perez, wherein the court made an award of $40,000 on the basis
that the plaintiff could still do the job, but not at the same level as before.

[101]  However, I
note that in Hildebrand, Mineault and Lumanlan the plaintiffs
were all quite young with a number of potential career paths ahead of them. In
this case, while I do not find that the plaintiff anticipates ever working for
another employer I accept that another employer would hesitate to employ a
mechanic who could not perform all required tasks. As stated by the plaintiff “I
would not hire myself if I had to hire anyone”. His capacity to work has been
impaired.

[102]  The cases
cited by the defendants indicate that where there is only a remote possibility
of a future loss of income, that it is appropriate to give a more modest award
for diminished capacity (Lamont v. Stead, 2010 BCSC 432; Singh v.
Shergill, 2010 BCSC 323; Verhnjak v. Papa, 2005 BCSC 1129). For
example in Singh, a plaintiff with a crushed hand was able to continue
to do the tasks required for his job, despite the heavy lifting. His employer
also somewhat accommodated his disability. The court found that there was no
income loss if he were to remain in his current position, but awarded $25,000
on the less likely possibility that he would leave his job at some point in the
future.

[103]  To a
similar effect is Verhnjak, where the plaintiff continued to work
through her disability in the same position she had before the accident. A
modest award of $20,000 was made on the basis that it was “impossible to say
that over the rest of the plaintiff’s working life the impairment will not harm
her income capacity” (para. 35).

[104]  Considering
the factors in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353, I
find that the plaintiff has been rendered less capable of earning income from
all types of employment, is less marketable as a potential employee, has lost
the ability to take advantage of all job opportunities and is less valuable to
himself. Taking into account all relevant contingencies including the
possibility that the plaintiff will leave his current employment I conclude
that an appropriate award for his loss of future earnings capacity is $40,000.

Mitigation

[105]  The
defendant submits that the plaintiff failed to pursue recommended physiotherapy
which therapy, if pursued in 2008, according to Dr. Gropper, had the potential
to improve his recovery. Dr. Gropper was of the view such therapy would not be
effective now.

[106]
The principle of mitigation of damages in a personal injury case was
stated by Rowles, J.A. for the majority in Graham v. Rogers, 2001 BCCA
432 at para. 35:

[35]      Mitigation goes to
limit recovery based on an unreasonable failure of the injured part to take
reasonable steps to limit his or her loss. A plaintiff in a personal injury
action has a positive duty to mitigate but if a defendant’s position is that a
plaintiff could reasonably have avoided some part of the loss, the defendant
bears the onus of proof on that issue.

[107]  A failure
to mitigate requires proof that the plaintiff knowingly failed to follow
medical recommendations. The onus is on the defendant (Graham, para.
36).

[108]  The evidence
of the plaintiff is that none of the physicians he consulted recommended
therapy. While Dr. Gropper in his medical legal report of 2008 recommended
therapy there is no evidence that he informed the plaintiff of that given his
role was to conduct an independent medical examination, not to treat the
plaintiff. In cross-examination he stated that he recommended to the
plaintiff’s lawyer a course of therapy however there is no evidence that the
plaintiff was ever aware of that recommendation.

[109]  Given it
has not been established that the plaintiff was told to take therapy there is
no proof that the plaintiff knowingly failed to follow such medical
recommendations. As a result I find no failure to mitigate.

[110]  No claim
was advanced for future care costs. With respect to special damages the
plaintiff has failed to provide evidence of special damages, (which I
understand were minimal).  He did not pursue this claim. I will not make an
award under this heading.

[111]  In summary
I award $45,000 for non-pecuniary damages, $25,000 for past loss of earning
capacity and $40,000 for loss of future earning capacity for a total of $110,000.

Costs

[112]
Unless there are matters relevant to costs that I am not aware of the
plaintiff is entitled to his costs.

“Punnett
J.”