IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140521

Docket: M116342

Registry:
Vancouver

Between:

Soukphavong Saopaseuth

Plaintiff

And

Viengsamay Phavongkham

Defendant

Before:
The Honourable Mr. Justice Bernard

Reasons for Judgment

       I.         
Overview

[1]            
On January 15, 2011, Soukphavong Saopaseuth was injured in a motor
vehicle accident (the “MVA”). Mr. Saopaseuth was the front seat passenger
in the defendant’s Nissan Sentra sedan when it rear-ended another vehicle. Upon
impact, Mr. Saopaseuth was thrust forward and then backward while secured
by his seatbelt. He sustained soft-tissue injuries. The impact caused only the
driver’s airbag to deploy.

[2]            
Shortly after the MVA, Mr. Saopaseuth underwent a course of
physiotherapy for neck, chest, and back pain, all of which resolved within
approximately eight-to-ten weeks; however, Mr. Saopaseuth began suffering
from numbness in his right leg approximately four months after the MVA. Mr. Saopaseuth
attributes this numbness to an injury to his pelvic region caused by the forces
of the MVA.

[3]            
Although the persistence of the numbness is in issue, its existence is
not. The numbness has been diagnosed as meralgia paresthetica (“MP”). The
principal matter in contention is whether the MVA caused the MP. In this
regard, Mr. Saopaseuth’s case rests heavily on the expert testimony of Dr. John
Armstrong, who diagnosed Mr. Saopaseuth with spinopelvic ring dysfunction
(SPRD) as the underlying reason for his MP, and opined that the MVA was the
probable cause of the SPRD.

[4]            
The defendant relies on the expert testimony of Dr. Olli Sovio, who
rejects SPRD as an accepted medical diagnosis and opines that if Mr. Saopaseuth’s
MP had been caused by the forces of the MVA then there would have been no delay
in its onset.

[5]            
Liability for the MVA is admitted. In relation to damages, the parties
have agreed that Mr. Saopaseuth earns $21.95 per hour as a meat processor,
and that $5,557 represents his past wage loss.

[6]            
Mr. Saopaseuth seeks the following damage awards:

(a)      $50,000
for non-pecuniary losses;

(b)      $5,557
for past wage loss;

(c)      $45,656
for future lost earning capacity;

(d)      $17,400
for the cost of future care; and,

(e)      $1,983
for special losses.

[7]            
The defendant’s position is that his liability is limited to Mr. Saopaseuth’s
losses arising from the soft tissue injuries to his neck and back, all of which
resolved within eight-to-ten weeks; accordingly, the appropriate awards are: $3,000
to $6,000 for non-pecuniary losses; $5,557 for past wage loss; and, $375 for
special costs (for physiotherapy in this period). The defendant submits that other
heads of damages are inapplicable in the circumstances.

     II.         
Evidentiary Synopsis

[8]            
Mr. Saopaseuth is a 50-year-old single man with minimal formal
education. He works as a meat processor for Sunrise Poultry. The physical
demands of his job include standing for long periods and carrying heavy
containers of processed chicken from the processing line to storage coolers. Mr. Saopaseuth
is a relatively short, Asian man with a stocky build. He weighs 164 lbs and has
experienced only minor variations in this weight for many years. Before the MVA
he walked and bicycled for exercise. He has no pre-MVA history of musculoskeletal
complaints or injuries, save for a fractured rib caused by a severe coughing
bout in December 2010.

[9]            
Mr. Saopaseuth emigrated from Laos in 1984, but his grasp of spoken
English remains rudimentary and he is unable to read or write English. He
testified in Lao. Even in his native tongue his answers to questions were
simple and concise.

[10]        
Mr. Saopaseuth was the sole passenger in his friend’s Nissan car at
the time of the MVA. He estimated that the Nissan was travelling at 40-to-45
km/h just before striking the car stopped ahead. He said that upon impact his
body moved forward and his seatbelt pulled him back. After the collision, he
stepped from the vehicle and noted damage to the front of his friend’s car. He
said the Nissan was subsequently scrapped by his friend.

[11]        
The next morning Mr. Saopaseuth noticed his neck, back and chest
were painful. He had bruising across his chest, in line with the shoulder strap
of the seatbelt. He went to a walk-in clinic and was prescribed Tylenol for
pain. He then saw Dr. Iwama, his family physician, on January 24, 2011. Dr. Iwama
noted his injuries and referred him for X-rays and to Hazelwood Physiotherapy.

[12]        
Mr. Saopaseuth went to physiotherapy and found that his neck,
chest, and back pain subsided within approximately eight-to-ten weeks of the
MVA; however, at some point in the spring of 2011(in April, he believes), he
said he began experiencing numbness in his right leg, starting at his thigh and
running down to his foot. The numbness would occur after a prolonged period of
standing at work. Initially, it was not a daily event. With a repeated kicking
motion with the right leg he found the numbness would subside within
approximately 30 minutes. He said he became worried about this numbness and
reported it to Dr. Iwama on May 5, 2011.

[13]        
In January 2012, Dr. Iwama referred Mr. Saopaseuth to a
neurologist (Dr. Sadowski), and for physiotherapy as a result of Mr. Saopaseuth’s
persistent numbness. Physiotherapy in January and February 2012 did not resolve
Mr. Saopaseuth’s numbness. By the autumn of 2013 Mr. Saopaseuth was
experiencing numbness several times daily. The more he stood, the more he
experienced it, and repeated kicking was no longer very effective. He found
that if he sat, eventually the numbness would subside.

[14]        
Mr. Saopaseuth saw Dr. Armstrong in September 2013, and on the
doctor’s recommendation Mr. Saopaseuth began treatments (including
acupuncture) at Performax Health Group in late November 2013. Mr. Saopaseuth
testified that since undergoing these relatively recent therapies, his numbness
has “decreased a lot”, and is more focused in his foot.

[15]        
After the MVA and while he was still in pain, Mr. Saopaseuth’s
friends Sherry Dodge and Kam helped him by performing housework and yard work,
respectively. Kam continued to do yard work over the summer of 2011 because Mr. Saopaseuth
feared relapse of his neck and back complaints. Ms. Dodge testified that
she helped Mr. Saopaseuth in the first two months after the MVA by doing
household chores for a “couple of hours at a time” daily, at first, and then
less frequently as he progressed toward recovery.

[16]        
In cross-examination, Mr. Saopaseuth said he waited for a while after
he first experienced the numbness before seeing Dr. Iwama about it. He
said he could not specifically recall when he first reported it; however, he
asserted that thereafter he mentioned it on each visit, whether the doctor
noted it or not. Mr. Saopaseuth agreed the numbness never caused him to miss
work, although he said he declined some over-time hours because of it.

[17]        
Mr. Saopaseuth was also asked about an incident in March 2012 when
he lost consciousness while at home in his kitchen, and was taken to the
hospital by ambulance. Mr. Saopaseuth attributed this incident to a
coughing jag brought on by his asthma, and said this was the only time he has
fallen in the past five years. He distinguished this incident from prior
instances of dizziness caused by his asthma, in which he would take a seat
rather than fall and lose consciousness.

[18]        
Dr. Tom Iwama has been Mr. Saopaseuth’s family physician since
1984. Dr. Iwama identified Mr. Saopaseuth’s pre-MVA medical
conditions as follows: (a) hypo-thyroid, treated with medication; (b) gout,
treated with medication; (c) asthma, treated with a bronchial dilator and
inhaler steroids; and, (d) an “undisplaced” left eighth rib fracture (caused by
an acute coughing fit related to asthma on December 10, 2010).

[19]        
On Mr. Saopaseuth’s first post-MVA visit (January 24, 2011), Dr. Iwama
found that Mr. Saopaseuth had pain in his sternum, neck and upper back. On
May 5, 2011 he noted: “residual pain at the left chest wall”; “neck and back
OK”; and, “x-ray lumbar spine for paresthesia on right lateral thigh”. The next
note related to the leg numbness was on January 19, 2012, when Mr. Saopaseuth
complained of low back pain and he sent Mr. Saopaseuth for an MRI because
of numbness in the right foot. On May 29, 2012 Dr. Iwama referred Mr. Saopaseuth
to a neurologist because he suspected MP.

[20]        
In cross-examination, Dr. Iwama agreed that when he examined Mr. Saopaseuth’s
lower back, including his sacroiliac joint, on January 24, 2011 he found
nothing of concern. Dr. Iwama also agreed, based upon his clinical notes,
that Mr. Saopaseuth made no complaints of numbness to him between May 5,
2011 and January 19, 2012. He agreed that when he prepared an ICBC report on
September 1, 2011, he wrote that Mr. Saopaseuth was “asymptomatic”. He
also said that when Mr. Saopaseuth reported the numbness on May 5, 2011, Mr. Saopaseuth
did not identify the cause of the numbness and Dr. Iwama did not ask.

[21]        
James Rowan is the physiotherapist to whom Mr. Saopaseuth was
referred twice: first, in January 2011 for his neck, back and chest pain, and
then again in January 2012 for his numbness. By March 30, 2011, after 15
sessions, Mr. Saopaseuth had recovered from his neck, back, and chest
complaints. In relation to Mr. Saopaseuth’s numbness, he had three therapy
sessions without results and was referred back to Dr. Iwama.

[22]        
In cross-examination, Mr. Rowan agreed that Mr. Saopaseuth did
not complain of hip, lumbar, or sacroiliac joint pain at his first session on
January 26, 2011. He said that on March 4, 2011 Mr. Saopaseuth complained
of lower back pain and this became the focus of treatment. On March 11, 2011 Mr. Rowan
examined Mr. Saopaseuth’s sacroiliac joint for the first time. He agreed
he did not note that Mr. Saopaseuth had SPRD or pelvic asymmetry. He said
“other than decreased movement [in one sacroiliac joint], I didn’t note any
asymmetry in alignment.”

[23]        
Dr. Armstrong examined Mr. Saopaseuth on September 4, 2013,
and wrote a comprehensive (14-page) expert report and a rebuttal to Dr. Sovio’s
report, both of which were tendered into evidence. He also testified at trial. Dr. Armstrong
is a physician with a PhD in neuroscience and an expertise in the diagnosis and
treatment of chronic pain. He was found to be qualified to give opinion
evidence regarding the diagnosis and treatment of complex chronic pain with a neurological
foundation.

[24]        
Dr. Armstrong examined Mr. Saopaseuth on September 4, 2013.
This examination spanned approximately three hours. In this examination Dr. Armstrong
found SPRD as the explanation for Mr. Saopaseuth’s MP; more specifically,
he found that Mr. Saopaseuth had sacroiliac joint misalignment and a
tensed and shortened iliopsoas muscle. He explained that with these conditions
the lateral femoral cutaneous nerve (the “LFCN”) is likely to become entrapped
between the iliacus and psoas-major muscles as they merge in the pelvis to form
the iliopsoas muscle, and that it is this entrapment that has caused Mr. Saopaseuth’s
MP. Dr. Armstrong explained that the entrapment is typically aggravated by
prolonged standing because when one is standing the iliopsoas muscle is tensed.

[25]        
In relation to causation, Dr. Armstrong said:

[61]      In my opinion, the
forces applied in the MVA to the soft tissues of Mr. Mr. Saopaseuth’s
upper spinal axis and SPR were probably sufficient to have overloaded and
injured these structures, causing an acute axial myofascial disorder and initiating
his SPRD. He recovered from the acute myofascial disorder. His SPRD was
recognized but, in my opinion, was insufficiently treated so it has persisted
and led to tightness/shortening of the right iliopsoas muscle with entrapment
of his right LFCN. Absent the MVA or other similar trauma about which I am
unaware, it is my opinion that Mr. Mr. Saopaseuth would likely not
have experienced the acute myofascial disorder (now resolved). Nor would he
have sustained an injury to his SPR and gone on to develop SPRD and
tightness/shortening of the right iliopsoas muscle with entrapment of his right
LFCN, all of which conditions persist currently.

[26]        
Dr. Armstrong further explained: that an abrupt force to a pelvis
restrained by a seatbelt could cause strain or tearing in the spinopelvic
ligaments and in the anterior capsule of the sacroiliac joints; that it is these
soft tissues that stabilize the spinopelvic ring (“SPR”); and, that the
loosening of these tissues can cause the SPR to become increasingly unstable
and lead to a misalignment which, in turn, causes a shortening of the muscles
which stabilize the SPR, such as the gluteus medius and iliopsoas.

[27]        
Dr. Armstrong was not troubled by the four-month delay in the onset
of Mr. Saopaseuth’s numbness. He said the delayed onset of symptoms was
consistent with an entrapment of the LFCN which would eventually become
symptomatic, rather than with a direct injury to the LFCN which would have
immediate symptoms. He added that it was common, in his experience, for
patients to complain of neck and back pain after an MVA, and for this to be the
focus of treatment. He said that the absence of recovery in some of these
patients is often due to undiagnosed pelvic misalignment.

[28]        
In relation to treatment, Dr. Armstrong recommended that Mr. Saopaseuth:
(a) undergo an 18-session supervised, rehabilitative exercise program (at a
cost of $75 to $100 per session) aimed at addressing his sacroiliac joint
problems, his shortened iliopsoas muscle, and his core weakness; (b) take time
off work in this period to avoid further aggravating his condition; (c)
purchase and wear a sacral belt (at a cost of $75) until he has developed
sufficient core strength and balance to maintain SPR stability without it; (d)
undertake a walking program using a pedometer (at a cost of $25); and, (e)
maintain a gym membership (at a cost of $1800 with supervision in the first
year only, and $1200 per year thereafter).

[29]        
Dr. Armstrong’s prognosis for a full recovery by Mr. Saopaseuth
was somewhat guarded because Mr. Saopaseuth’s SPRD has persisted for more
than two years. In his report he wrote that it is not possible to predict how
much improvement, if any, Mr. Saopaseuth will experience with his
recommended rehabilitative efforts. At trial, he considered it a good sign that
Mr. Saopaseuth had reported much improvement as a result of the recent
treatments at Performax.

[30]        
Dean Kotopski is a senior physiotherapist at Performax Health Group
Physiotherapy. Dr. Armstrong referred Mr. Saopaseuth to him.
Performax therapists’ notes show that Mr. Saopaseuth’s first session at
Performax was on November 27, 2013, and that as of February 8, 2014, he had
undergone approximately 20 therapy sessions. Mr. Kotopski was not the
physiotherapist for the vast majority of these sessions, but he testified using
Performax records which revealed that Mr. Saopaseuth was experiencing the
improvement he acknowledged in his testimony. Performax’s treatments included
core strengthening, heat, acupuncture, and active release therapy (“ART”).

[31]        
In cross-examination, Mr. Kotopski agreed that Performax did not
follow the specific course of treatment recommended by Dr. Armstrong
because Mr. Kotopski did not see the pelvic asymmetry Dr. Armstrong
had found. Although he said that he rarely disagreed with Dr. Armstrong,
he chose not to disclose or discuss his differing views of Mr. Saopaseuth’s
treatment needs with Dr. Armstrong, at any time after the referral.

[32]        
Dr. Olli Sovio is an orthopaedic surgeon (retired) who examined Mr. Saopaseuth
on August 22, 2013. He spent approximately one hour with Mr. Saopaseuth
and prepared a six-page medical/legal report which was tendered into evidence.
He testified by deposition.

[33]        
In relation to diagnosis and causation, Dr. Sovio wrote:

The patient suffers from myralgia [sic] paresthetica which is
[an] irritation of the lateral cutaneous nerve of the thigh as it crosses the
iliac crest. This is very common in patients with protuberant abdomen[s] and is
usually caused by chronic irritation by a belt in this area.

I do not feel that this is related in any way to the motor
vehicle accident in question because if it had been due to injury from the seat
belt it would have been noted immediately following the motor vehicle accident
and not a year later.

…

In summary then, the patient has some soft tissue injuries
which lasted for about a period of 4 weeks and he appears to have completely
cleared by March of 2011 according to the family physician’s records.

I do not feel that he will have
any residual [sic] as a result of the motor vehicle accident nor do I feel that
any treatment or any fear [sic] of [sic] need for further investigation is
indicated on the basis of the patient’s situation. The patient could be safely
reassured that nothing residual is present from the motor vehicle accident.

[34]        
After Dr. Sovio read Dr. Armstrong’s report he wrote a brief
rebuttal in which he asserted that Dr. Armstrong’s finding of SPRD was
without scientific basis and that his finding of entrapment of the LFCN by the
iliacus and psoas muscles did not make anatomical sense. In relation to the
cause of Mr. Saopaseuth’s MP, he added the following to his earlier
opinion (albeit without acknowledging his earlier misunderstanding that Mr. Saopaseuth
had not reported numbness within the first year of the MVA):

The fact that the patient’s symptoms did not come on for 4
months after the motor vehicle accident suggests that this is likely related to
some type of a chronic situation. Certainly, [it is] not related to a seat belt
injury. If a seat belt injury had occurred it would have shown up immediately.

Chronic irritation of the lateral
cutaneous nerve of the thigh is the most common cause of this problem. It is related
to usually irritation from wearing a belt or carrying some objects on a belt
such as a tool belt and any other irritation that may occur in this area. Thus
I would not support the fact that this particular problem is related to any
specific injury as it pertains to the motor vehicle accident.

[35]        
In support of Mr. Saopaseuth’s claim for special damages, invoices
and/or receipts (totalling $863) for all physiotherapy sessions from January
26, 2011 to February 2014 were tendered into evidence as Exhibit 4, and Mr. Saopaseuth
testified to 21 sessions with Performax (some of which were not included in
Exhibit 4).

   III.         
Discussion

[36]        
It is common ground that: (a) Mr. Saopaseuth was in an MVA on
January 15, 2011, in which he sustained soft tissue injuries to his neck, back,
and chest; (b) these injuries resolved within eight-to-ten weeks; and, (c) in
this recovery period Mr. Saopaseuth’s life was compromised by pain and he
lost some income due to time away from work.

[37]        
Similarly, it is not in dispute that: (a) in April or early May of 2011,
Mr. Saopaseuth first experienced a numbness in his right thigh; (b) Mr. Saopaseuth
first reported this numbness to Dr. Iwama on May 5, 2011; (c) Dr. Iwama’s
next clinical note of a complaint from Mr. Saopaseuth of numbness is in
January 2012; (d) since January 2012 the numbness has persisted to the present;
(e) since December 2013, Mr. Saopaseuth has responded to the therapeutic
treatments administered by Performax; and, (f) the medical diagnosis for Mr. Saopaseuth’s
numbness is MP in the right thigh, caused by an impingement of his LFCN.

[38]        
The parties have framed the principal issues for resolution as follows:

1.       What mechanism is
causing Mr. Saopaseuth’s LFCN impingement?

2.       Is the MVA the cause
of that mechanism?

1.     What
mechanism is causing Mr. Saopaseuth’s LFCN impingement?

[39]        
The evidence in this regard comes from the opposing opinions of Drs. Armstrong
and Sovio.

[40]        
Dr. Armstrong attributes the impingement to a shortened right
iliopsoas muscle caused by SPR instability and misalignment. He reported that while
examining Mr. Saopaseuth he personally observed this misalignment; more
specifically, he said he found the right innominate bone of Mr. Saopaseuth’s
pelvis flared inward, the left flared outward, and the iliopsoas muscle tense
and shortened. He explained that these findings are likely to cause entrapment
of the LFCN between the iliacus and the psoas-major muscles as they merge into
the pelvis to form the iliopsoas muscle. He noted that the entrapment is likely
to be aggravated by prolonged standing because when one stands the muscle is
tensed.

[41]        
Dr. Armstrong testified that SPRD is usually, but not always,
accompanied by pain in the sacroiliac joint and, thus, when there is no pain
(as in Mr. Saopaseuth’s case) pelvic misalignment will often be missed in
a clinical examination.

[42]        
Dr. Armstrong acknowledged that there are more common causes of
LFCN impingement than SPRD, such as chronic irritation from the pressure of a
“beer belly” or a heavy tool-belt; however, he said that neither of these apply
to Mr. Saopaseuth.

[43]        
The three-to-four month gap between the first sign of LFCN impingement
was not surprising for Dr. Armstrong; to the contrary, he explained that a
delayed and gradual symptomatic impingement is more indicative of a shortening
and thickening of iliopsoas muscle brought about by pelvic misalignment than it
is of an acute injury or a chronic irritation to the LFCN.

[44]        
Dr. Armstrong was cross-examined extensively and remained confident
and resolute in his diagnosis. He relied upon his extensive experience and
expertise, and was not swayed by Dr. Sovio’s contrary opinion. Dr. Armstrong
suggested that an orthopedic surgeon would not necessarily be best suited to
diagnose Mr. Saopaseuth, as his was not in a condition amenable to
surgical intervention.

[45]        
Dr. Sovio is critical of Dr. Armstrong’s opinion as to the
cause of Mr. Saopaseuth’s nerve impingement. He does not, however, offer a
specific alternate opinion as to its cause; rather, he simply identifies
chronic irritation of the LFCN (usually from a protuberant abdomen and a heavy
tool-belt) as the most common cause and implies this is the likely explanation
for Mr. Saopaseuth’s nerve impingement. Not surprisingly, he does not find
that Mr. Saopaseuth has a protuberant abdomen and/or that he wears a heavy
work-belt, as neither of these is a factor in Mr. Saopaseuth’s case.

[46]        
Dr. Sovio was troubled by the delayed onset of the impingement.
When he believed it was a one-year delay, he said this precluded an acute
injury to the LFCN from the seatbelt because there would have been immediate
symptoms. This seemed to reinforce his opinion that the cause of the
impingement was chronic irritation, particularly in light of his finding that
the femoral stretch test and FABER tests were normal. His opinion did not
change when he later believed that the delay in the onset of symptoms was only
four months.

[47]        
Dr. Sovio was also cross-examined extensively and he remained
resolute in his opinion and dismissive of Dr. Armstrong’s diagnosis; in
particular, he asserted it does not make any sense that Mr. Saopaseuth
would have a misalignment of the pelvis without a symptom/problem (i.e. pain)
in the sacroiliac joint or the symphysis pubis.

[48]        
Having regard to the foregoing and the totality of the evidence of the
experts, on balance I favour the opinion of Dr. Armstrong as to the cause
of Mr. Saopaseuth’s LFCN impingement. It is vexing when two highly
qualified and apparently independent experts fundamentally disagree; however,
on the basis of Dr. Armstrong’s: (a) specific expertise; (b) extensive
experience; (c) thorough and focused three-hour examination of Mr. Saopaseuth
(as opposed to one hour by Dr. Sovio); (d) comprehensive report; and, (e)
ability to withstand a lengthy and challenging cross-examination, I accept his
opinion and find that Mr. Saopaseuth’s LFCN impingement is more likely
than not from a shortened iliopsoas muscle caused by a misalignment of his
pelvis.

[49]        
On the question of whether Dr. Armstrong’s diagnosis is correct, I
am not persuaded that much can be made of Mr. Saopaseuth’s recent response
to treatments not specifically aimed at his misaligned pelvis. The essence of Dr. Armstrong’s
opinion is that remediation of Mr. Saopaseuth’s pelvic asymmetry is the
long-term solution to Mr. Saopaseuth’s MP, not that it is the sole means
by which some relief from impingement of the LFCN might be achieved. Similarly,
I am not persuaded that Mr. Kotopski’s disagreement with Dr. Armstrong’s
diagnosis of a misaligned pelvis is of sufficient probative value to undermine Dr. Armstrong’s
opinion. Even if his lay opinion in this regard were admissible for its truth
(as was urged by the defendant) Mr. Kotopski does not have Dr. Armstrong’s
considerable expertise in such matters.

2.     Is
the MVA the cause of Mr. Saopaseuth’s pelvic misalignment and shortened
iliopsoas muscle?

[50]        
Dr. Sovio does not accept that Mr. Saopaseuth had pelvic
misalignment or a shortened iliopsoas muscle; accordingly, he does not give an
opinion about whether the MVA caused these conditions. Dr. Sovio and Dr. Armstrong
agree that Mr. Saopaseuth did not sustain a direct injury to his LFCN from
the seat-belt he wore in the MVA.

[51]        
Dr. Armstrong opines that the forces applied to the soft tissues of
Mr. Saopaseuth’s SPR in the MVA were probably sufficient to have
overloaded and injured these structures, and caused SPRD. Dr. Armstrong
reported that his knowledge of the degree of force involved was based on his
understanding that: Mr. Saopaseuth was the front seat passenger in a
Nissan Sentra that rear-ended another car; the driver’s airbag deployed; Mr. Saopaseuth
was restrained by a seatbelt; and, Mr. Saopaseuth sustained acute soft
tissue injuries to his neck, back and chest.

[52]        
Mr. Saopaseuth’s evidence establishes that the collision took him
by surprise and the impact was of sufficient force to: (a) cause the driver’s
airbag to deploy; (b) throw his upper body forward and backward; (c) cause
significant damage to the front of the defendant’s car; (e) bruise his chest
where the seatbelt crossed it; and, (f) cause painful acute soft-tissue
injuries to his back and neck.

[53]        
I infer from the foregoing that the force upon Mr. Saopaseuth’s
pelvis from the lap-belt was abrupt and was not insignificant. Notably, Dr. Armstrong
identifies the abruptness of the force as increasing the risk of a pelvic
injury. It is also noteworthy that Mr. Saopaseuth was, at the time, a
somewhat “deconditioned” middle-aged man with poor core strength; thus, he was
more vulnerable to an injury.

[54]        
I accept Dr. Armstrong’s opinion that neither the delayed onset of Mr. Saopaseuth’s
MP nor the alleged eight-month hiatus is significant on the question of
causation. In relation to the hiatus, I note that Dr. Armstrong explained
that, in his experience, symptoms of numbness may wax and wane; in any event, I
accept Mr. Saopaseuth’s testimony that there was no such lengthy hiatus.
In this regard, the defendant has conceded that Mr. Saopaseuth was an
honest witness, albeit a poor historian. When Mr. Saopaseuth was
challenged about an alleged hiatus arising from an absence of entries about MP
in Dr. Iwama’s clinical notes and ICBC report, he was adamant that there
was no such hiatus. It was evident that the MP was of significant concern to Mr. Saopaseuth.
I am satisfied that if there had been a long hiatus then Mr. Saopaseuth
would not only have recalled it, but he would have admitted it. In relation to Dr. Iwama’s
September 1, 2011 report to ICBC that Mr. Saopaseuth was “asymptomatic”, I
am satisfied that the report related to those injuries Dr. Iwama believed,
at the time, resulted from the MVA; Mr. Saopaseuth’s complaint of numbness
was not one of them.

[55]        
In summary, I am satisfied that it is more likely than not that the MVA
was the cause of Mr. Saopaseuth’s pelvic misalignment and shortened
iliopsoas muscle. I accept Dr. Armstrong’s opinion in this regard;
moreover, the evidence discloses that the MVA was the only proximate
significant physical trauma to Mr. Saopaseuth preceding the onset of MP,
and nothing else reasonably accounts for it. Notably, Mr. Saopaseuth does
not fit the profile of persons who commonly experience MP as a result of
chronic irritation from a protuberant abdomen and/or a heavy work-belt.

  IV.         
Damages

1.     Non-pecuniary

[56]        
Mr. Saopaseuth is a 50-year old single man, with no dependents,
who, immediately following the MVA, suffered from acute pain and discomfort in
his chest, neck and back. He responded well to physiotherapy and these injuries
resolved within eight-to-ten weeks. In this relatively short period he took
time away from work and managed his household with some assistance from his
friends. Mr. Saopaseuth leads a relatively simple and quiet life.  There
is no evidence that these injuries caused great personal suffering or had a dramatically
negative impact upon his lifestyle and relationships.

[57]        
Mr. Saopaseuth began to suffer from MP in his right leg in or about
early May 2011; since then it has persisted. The MP has been an irritant and a
worry in this protracted period; however, there is no evidence that it has significantly
affected his lifestyle or his relationships.

[58]        
Significantly, since early 2014 Mr. Saopaseuth has experienced
considerable amelioration of his MP, and Dr. Armstrong was pleased to
learn of it. It is consistent with Dr. Armstrong’s opinion that Mr. Saopaseuth’s
condition is treatable with rehabilitative therapy, although Mr. Saopaseuth
has yet to be treated specifically for SPRD.

[59]        
In support of Mr. Saopaseuth’s position for a non-pecuniary damages
award of $50,000 he cited the following cases: Ching v. McCabe, 2006
BCSC 1589 ($50,000); Graydon v. Harris, 2013 BCSC 182 ($60,000); Hutchinson
v. Cozzi, 2009 BCSC 243 ($40,000); Loeppky v. Insurance Corp. of British
Columbia, 2012 BCSC 7 ($45,000); Piper v. Hassan, 2012 BCSC 189
($50,000); Sooch v. Snell, 2012 BCSC 696 ($45,000); and, Tran v.
Edbrooke, 2013 BCSC 1802 ($85,000).

[60]        
Each of the aforementioned cases is, in material aspects,
distinguishable from the instant case; nonetheless, they offer a helpful guideline
for the assessment of Mr. Saopaseuth’s damages. Taking into account the
nature and duration of Mr. Saopaseuth’s various injuries, the relatively
modest impact they have had upon him, his relationships, and his lifestyle, and
his very favourable prospects for either significant improvement or full
recovery from his MP, I assess his non-pecuniary damages at $30,000.

2.     Past
wage loss

[61]        
Between January 18, 2011 and March 7, 2011 Mr. Saopaseuth suffered
an income loss of $5,557.56; by agreement, there will be an award for past wage
loss in this amount.

3.     Future
Loss of Earning Capacity

[62]        
Mr. Saopaseuth seeks $45,656. This figure represents one year’s
income at $55,000, discounted for future contingencies.

[63]        
Mr. Saopaseuth submits he has demonstrated that there is a
substantial possibility he may have to retire early from his employment due to
an increased intolerance for prolonged standing caused by a lack of recovery
from his MP. In support of this position, Mr. Saopaseuth relies upon the
following paragraph in Dr. Armstrong’s report:

[106]    The reality is that, absent
substantial improvement in his overall physical condition, he will likely, in
my opinion, experience with age and the continuing presence of SPR instability
an accelerated and progressive wearing out of his sacroiliac joints and lower
lumbar motion segments rendering him increasingly intolerant of prolonged
static upright postures (sitting as well as standing). This would make even
sedentary work difficult for him and would portent possible unemployment and a
further deterioration of his lifestyle.

[64]        
Notably, the foregoing opinion is premised on the absence of substantial
improvement in Mr. Saopaseuth’s overall physical condition, and was given
prior to Mr. Saopaseuth’s favourable response to therapy. It is
also noteworthy that Mr. Saopaseuth’s physical fitness is a matter well
within his control. He is not limited by the MVA injuries, or otherwise, from
engaging in exercise to improve his overall physical condition and strengthen
his core muscles.

[65]        
It is well-settled that an award under this head of damages is premised
on a plaintiff establishing that he or she has suffered an impairment of
earning capacity for which there is a real and substantial possibility of a
future pecuniary loss: Perren v. Lalari, 2010 BCCA 140, para. 32.

[66]        
I am not persuaded that Mr. Saopaseuth has met the aforementioned
threshold on the evidence tendered. Mr. Saopaseuth’s MP has not caused him
to miss work in the past, and he has experienced recent significant
amelioration of his MP from therapies and, perhaps, from improved physical
fitness. There is no evidence to suggest that Mr. Saopaseuth will not
continue to work for Sunrise Poultry, without compromise in compensation or
years of employment, until he retires. It is notable that he is a long-term
(i.e. 30-year) employee of Sunrise, and that Sunrise has, in the past,
accommodated his needs.

[67]        
The evidence suggests that Mr. Saopaseuth will continue to
experience improvement in his MP, and that it is nothing more than a remote
possibility that he will suffer a future pecuniary loss from an impaired
earning capacity attributable to the MVA; accordingly, no award is warranted
under this head of damages.

4.     Future
Cost of Care

[68]        
Mr. Saopaseuth seeks: (a) $780 for 12 physiotherapy sessions aimed
at stabilizing his pelvis, in keeping with Dr. Armstrong’s diagnosis and
recommendations for treatment as yet not specifically addressed by Performax;
and, (b) $17,400 for 14 years of gym membership (supervised in the first year).
In support of these future costs, Mr. Saopaseuth relies upon Dr. Armstrong’s
evidence emphasizing the importance of physiotherapy and improved overall
fitness and core strength to Mr. Saopaseuth’s long-term recovery.

[69]        
 Dr. Armstrong opined that Mr. Saopaseuth would need “up to a
year” of regular daily and discipline exercise followed by maintenance three or
four times per week. He suggested a supervised gym membership for the first
year, and then an unsupervised membership thereafter, without specifying a
time-frame for the membership. Prior to the MVA Mr. Saopaseuth walked for
exercise and did not have a gym membership.

[70]        
I am satisfied that the evidence supports an award which includes the
costs for: (a) 12 therapy sessions at $65 each; (b) a one-year supervised gym
membership at $1800; and, (c) an unsupervised gym membership for four additional
years, at $1200 per year. These medically recommended expenses are for
treatments aimed at recovery from an injury caused by the defendant; accordingly,
I am satisfied they have been proven. The award under this head of damages is $7,380.

5.     Special

[71]        
Mr. Saopaseuth seeks reimbursement for $1,983 in physiotherapy
costs incurred between the MVA and the trial. The defendant’s sole issue with
these costs arises from its unsuccessful position that its liability is limited
to the eight-to-ten week period following the MVA; accordingly, the special
costs award will be in the amount sought.

    V.         
Summary and Disposition

[72]        
The defendant is liable for the injuries to Mr. Saopaseuth’s chest,
neck and back and the MP to his right leg. In relation to these injuries, Mr. Saopaseuth
is entitled to the following damages awards:

[73]        
If the parties are unable to resolve the matter of costs by agreement
then they may make written submissions.

“The Honourable Mr. Justice Bernard”