IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140610

Docket: M105315

Registry:
Vancouver

Between:

Alexander Gleizer

Plaintiff

And

Insurance
Corporation of British Columbia

Defendant

Before:
The Honourable Madam Justice Harris

Reasons for Judgment

Introduction

[1]            
The plaintiff in this case, Alexander Gleizer, seeks damages for
injuries suffered in a motor vehicle accident which occurred on November 15,
2008 (the “MVA”).

[2]            
The plaintiff was driving a taxi at the time of the MVA and had just
picked up three passengers at about 3:00 a.m. He was driving northbound on
Denman Street through the intersection of Denman Street and Alberni Street. The
plaintiff had the right of way. The plaintiff’s vehicle was struck on the front
passenger side by a sports utility vehicle (“SUV”) which was travelling
westbound on Alberni Street. The plaintiff’s vehicle was pushed westward across
Denman and came to rest against a metal pole on the west side of the street,
causing some damage to the pole.

[3]            
The SUV did not remain at the scene of the MVA.

[4]            
The plaintiff was not wearing a restraining device at the time of the
MVA.

[5]            
At the trial, liability for the MVA was admitted by the defendant. However,
the defendant claimed that the plaintiff was contributorily negligent because
he did not wear a seat belt. The defendant also disputes the nature and extent
of the injuries and the amount of damages claimed by the plaintiff.

The Motor Vehicle Accident

Before the MVA

[6]            
At the time of the MVA, the plaintiff was a 42 year old gentleman, who
was born on November 12, 1966 in a town in Moldova. Moldova was then within the
U.S.S.R.

[7]            
He was born Alexander Petroff. He changed his name when he married his second
wife.

[8]            
Having completed a four year post-secondary program in music, the
plaintiff became a qualified music teacher. He plays accordion, piano, keyboard
and guitar. He worked as a musician following his schooling.

[9]            
He was also trained in and worked as an electrician while he was
completing his military service. After his military service, he worked as a
musician for approximately two years.

[10]        
He married and had one child in Moldova. He does not have regular
contact with his son from that marriage.

[11]        
The plaintiff testified he then became involved in “business” in Poland.
The plaintiff was not clear as the nature of the work, except that it involved importing
some type of household goods.

[12]        
The plaintiff left Moldova in 1992 due to concerns he had about his personal
safety and came to Canada with his then common law spouse, Olga. After three or
four months living in Gander and St. John’s, where he studied English, he moved
to Toronto in 1993.

[13]        
He was initially employed in Toronto as a pizza delivery driver and “helping
people here and there”. He continued to work to improve his English.

[14]        
He lived in Toronto for 14 years, where he was mainly employed as a
truck driver and limousine driver. He subsequently worked selling windows and
gas contracts.

[15]        
The plaintiff testified that, when he worked as a limo driver, he worked
7 days a week and when he worked as a truck driver he worked 6 days a week.

[16]        
After his relationship with Olga ended, he met and married Dianna in
1997. She had two children from a previous relationship. The plaintiff and
Dianna had a son together in 1998. At about that time, they bought a home in
the Toronto area.

[17]        
The plaintiff and Dianna started a cosmetic company, Deep Sea Cosmetics,
and travelled to Montreal and Vancouver for exhibitions and to Israel regarding
the product line.

[18]        
The plaintiff also took training in computer programming. Although he
did not pursue this line of work, he did use his skills in creating a website
for the cosmetic company and, subsequently, in designing one or more other website.

[19]        
The plaintiff and Dianna accumulated significant debt due to the
cosmetics company, resulting in bankruptcy in 2004.

[20]        
The plaintiff testified he was hospitalized for approximately one month
in 2004 or 2005 for what he describes as “breakdown” or “amnesia”. He said he
does not recall if he received a diagnosis of amnesia at the time or how he
came to be hospitalized other than getting lost in his car and his wife picking
him up. He testified that he was prescribed medication for a short time, but discontinued
it at the suggestion of his wife.

[21]        
 The plaintiff separated from his wife a few months after he had been
hospitalized.

[22]        
The plaintiff testified that he subsequently worked in sales. While
working for Superior Gas, he came to British Columbia for business and decided
to move to Vancouver.

[23]        
After moving to Vancouver in approximately 2006, he worked for a
trucking firm in the Vancouver area. He subsequently obtained a licence to
drive a taxi. He leased a taxi from Sunshine Cabs in February of 2008. He
testified that he was working 12 hours a day, seven days a week driving taxi.

[24]        
He said that before the MVA he liked to socialize with friends and would
go to clubs and have parties. He also worked out at a gym. He said he didn’t
have time for much else.

[25]        
He had a girlfriend in 2008 but they broke up just prior to the MVA.

After the MVA

[26]        
The plaintiff testified that he does not recall much about the
collision. He recalled the SUV coming towards his vehicle and then opening his
eyes to hear someone talking to him through his window.

[27]        
He was taken to St. Paul’s Hospital by ambulance. He recalled sleeping
that night at the hospital and then being told by a doctor that he could go
home. He walked home at about 8:00 am and went to sleep.

[28]        
The emergency room records refer to his hitting his head on the
dashboard, complaints of pain on the right side of his neck and dizziness. He
had a laceration on his forehead, which did not require sutures.

[29]        
The emergency record states his GCS score was 14 to15 out of 15. He was diagnosed
with a concussion.

[30]        
The plaintiff testified that he doesn’t recall what happened in the days
immediately following the MVA, although he recalls going to a nearby walk in
medical clinic. He testified that he took two or three days off and then went
back to work driving taxi.

[31]        
He stated that he initially worked his normal shift but found he was
getting more tired than usual. He felt like he was falling asleep and so he would
park the taxi and sleep for a time.

[32]        
In December, he went to Cuba for a week with friends. This trip had been
previously planned. He testified that he thought the rest would make him feel
better but he didn’t have any fun.

[33]        
The plaintiff testified that he worked two or three weeks after the MVA,
before he went to Cuba. When he came back from Cuba, he did not return to work.

[34]        
He stated that he stopped working because he was concerned about falling
asleep at the wheel. When asked why he did not try to go back to work, he
stated that the money was not really that good anymore and that he couldn’t
make the money he made before because he couldn’t work the number of hours he
had worked previously.

[35]        
He has been in receipt of social assistance/disability benefits since
2009.

Injuries from the MVA

[36]        
The plaintiff claims the following injuries from the MVA:

a.   Headaches: He
began to experience headaches immediately after the MVA. He testified that the
headaches feel like someone is squeezing his head; that they have continued
unchanged since the accident; and that he has them every day – although they
vary in intensity depending on the weather. He said he experiences dizziness
with the headaches.

b.   Laceration:
He said that he had bruising due to the cut to his forehead which he sustained
in the MVA but it went away in 2 weeks. It left a small scar which doesn’t
bother him.

c.   Neck Pain: He
described the pain in his neck began a couple of weeks after the MVA. He said
it feels like there is sand in his neck. He says there has been no improvement
in his neck.

d.   Mid-back
Pain: He described the pain in his mid-back as a “huge problem” which began
after the MVA. He feels heat, “like from an iron”, on his back. He says he
feels the pain “all the time”.

e.   Ankle Pain:
He says that his right ankle feels bruised. He said he noticed it within days
after the accident. He says it has not improved; that it is worse when he is
walking; and that he feels it every day.

f.    Hip Pain:
He describes his hip pain as mild. He says he started to notice it this year
and that maybe he stepped wrong.

g.   Sleeplessness:
He testified that he wakes up 2 – 4 times a night.

h.   Anxiety: He describes his anxiety as
something like the temperature going up where he can’t find a place and can’t
be steady – like he is moving from one spot to another looking for something.

[37]        
The plaintiff said he went to a physician after the accident. He
testified he went to a doctor on Robson who told him to rest, and a doctor in
Richmond, Dr. Pinkhasic. Dr. Pinkhasic also told him to rest. The
plaintiff doesn’t recall Dr. Pinkhasic prescribing any medication.
Subsequently he started seeing a Russian speaking physician. He testified that
he first saw Dr. Kalinowski in 2009, who became his family physician.

Post-Accident Medical Assessment

Family Physician

Dr. Kalinowski

[38]        
Dr. Kalinowski was the plaintiff’s family doctor following the MVA. He
was called as an expert witness by the plaintiff at the trial and his report is
dated August 7, 2013.

[39]        
In his opinion, the plaintiff had sustained a concussion; traumatic
brain injury; cervical, dorsal, lumbar and shoulder strain; and forehead
abrasion caused by the MVA, which subsequently developed into post-traumatic
headaches, depression, anxiety, sleep disturbance, and erectile dysfunction.
Dr. Kalinowski opined that these conditions, and the plaintiff’s problems
with his memory and decreased concentration, were due to the MVA.

[40]        
In that regard, Dr. Kalinowski, in his report, records each of the
plaintiff’s visits to his office, which included the plaintiff reporting continuing
complaints of pain in his neck and back, as well as headaches, dizziness, and
sleep disturbance in the period from 2008 to 2013. However, there is only one
reference to the plaintiff having made complaints regarding his memory and
concentration in Dr. Kalinowski’s description of the plaintiff visits since the
MVA.

[41]        
Dr. Kalinowski prescribed various analgesic and anti-depression
medications for the plaintiff’s pain, headaches and depression and referred the
plaintiff to psychiatrists for his depression and a neurologist for his
headaches. He also recommended physiotherapy, chiropractic treatments and
massage therapy.

[42]        
Dr. Kalinowski concluded that the plaintiff’s physical and psychological
injuries have reached a plateau and are essentially permanent in nature. In his
opinion, the plaintiff is unable to work as a taxi driver and would have
difficulty with an occupation which involved prolonged standing or sitting, or
which involved bending, lifting, squatting, twisting or carrying.

[43]        
In cross examination, Dr. Kalinowski testified that, as a family
physician, he accepts as true the symptoms which a patient reports to him,
including the plaintiff’s reports regarding his condition. Dr. Kalinowski
also testified that he did not discuss with the plaintiff the activities he was
engaged in as a means of assessing his level of functioning. With respect to
the plaintiff’s erectile dysfunction, Dr. Kalinowski testified that he was
not aware that he was treated for this condition prior to the MVA.

Physical Injures

Dr. Parhar

[44]        
Dr. Parhar was called by the plaintiff to give expert evidence. Dr. Parhar
is a family practice physician with experience in occupational and disability
medicine. He provided an expert reported dated June 28, 2013 and gave evidence
at the trial.

[45]        
Dr. Parhar conducted an assessment of the plaintiff on May 30, 2012. In
his physical examination of the plaintiff he noted, amongst other observations,
the plaintiff had a normal gait, was able to walk on his toes and heels without
difficulty and could stand from a squatting position, although he could not
bend over to tie his shoes.

[46]        
On an examination of his musculoskeletal, neurological and spine examination,
Dr. Parhar notes that the plaintiff’s cervical spine flexion and extension
was normal but rotation was decreased to 70 degrees. His thoracic spine
rotation and lumbar spine flexion and extension was normal. He noted some
tenderness to palpation in the left, midline and right regions of the cervical
spine.

[47]        
He also noted that motor examination of the upper extremities and lower
extremities revealed normal strength, normal range of motion and normal muscle
bulk in arms and legs, with the exception of weaker flexion in the right foot
in comparison to the left foot. Dr. Parhar noted a decrease in sensation in
the right foot.

[48]        
Based upon his examination of the plaintiff, as well as the medical
records and what the plaintiff told him about his symptoms and functional
ability, Dr. Parhar provided the following diagnosis: traumatic brain
injury; musculoligamentous injuries of the cervical spine, thoracic spine and
lumbar spine; right ankle sprain; right hip muscle strain; right shoulder
strain, forehead abrasion; head laceration; muscle tension headaches; sexual
dysfunction; depression; anxiety disorder, and sleep disturbance all of which
he attributes to the MVA.

[49]        
In Dr. Parhar’s opinion, the effects of the plaintiff’s traumatic brain
injury has now plateaued, with the plaintiff continuing to have decreased
memory, decreased concentration, as well as headaches and decreased mood. With
respect to the plaintiff’s musculoligamentous injuries, Dr. Parhar is of
the opinion that the fact that numerous treatment modalities have not been
successful, indicates that the injuries have reached a plateau and that, while
further treatment will offer temporary relief, he will continue to have pain in
his cervical, thoracic and lumbar spine causing headaches, right ankle and hip
strain.

[50]        
Dr. Parhar also expresses the opinion that the plaintiff’s residual
psychological symptoms of depression, anxiety and sleep disturbance are
permanent.

[51]        
Based upon his assessment of the plaintiff’s psychological and physical
symptoms, Dr. Parhar concludes that the plaintiff is permanently disabled
from work as a taxi driver and would need to explore other occupations, which
would accommodate his occupational limitations. In Dr. Parhar’s opinion,
the plaintiff should avoid occupational activities that require prolonged
sitting or that involve lifting, bending, squatting, twisting or carrying. Dr. Parhar
also opines that the plaintiff would have difficulty with activities which
require high levels of memory or concentration. Dr. Parhar does not
describe the tests or other basis for these restrictions.

[52]        
In cross examination, Dr. Parhar confirmed that the plaintiff did
not inform him of having been previously treated for any medical condition and
that his information about the plaintiff’s past occupational history was
limited to his work as a taxi driver. Dr. Parhar also confirmed that, in
his assessment of the plaintiff, he assumed that what the plaintiff told him
about his symptoms and his functional capacity was true.

Dr. Piper

[53]        
Dr. Piper is an orthopedic surgeon who provided an expert report and
gave evidence at trial on behalf of the defendant. His report is dated July 2,
2013.

[54]        
While there are similarities in the observations of Dr. Parhar and
Dr. Piper with respect to the plaintiff’s level of functioning during their
physical examination, there are significant differences in their opinions as to
the plaintiff’s diagnosis and prognosis.

[55]        
Dr. Piper, in his report, referred to the plaintiff’s complaints of pain
in the right side of his neck, in the back of his shoulder, in his right ankle,
and in his right hip. Dr. Piper noted that the plaintiff was “very vague”
as to the localization of pain in his hip.

[56]        
On physical examination, Dr. Piper noted that there was no
deformity to the plaintiff’s cervical spine nor was there any muscle spasm or
tenderness. Dr. Piper stated that the plaintiff had a “very satisfactory range
of motion in his neck” and able to rotate 45 degrees to the right and left. Dr. Piper
reported that flexion was 85-90% of normal.

[57]        
With respect to the thoracolumbar spine, Dr. Piper stated that the
plaintiff had reasonable thoracic rotation. Dr. Piper noted there was no
muscle spasm or tenderness on deep palpation of the thoracic or lumbar spinal
regions. He was able to toe and heel walk. He could forward flex to a finger-floor
distance of zero and laterally flex to one inch above the knee.

[58]        
With respect to the plaintiff’s upper extremities, Dr. Piper noted
that there was no deformity or muscle wasting. He observed that he had full and
normal range of motion in his shoulders, elbows and distal joints.

[59]        
Dr. Piper observed that there was no evidence of muscle wasting in the
plaintiff’s lower extremities. He had normal muscle strength. He had a normal
range of motion in his hips, knees and ankles. Upon specific examination of the
right ankle, Dr. Piper stated there was a full and normal range of motion with
no apparent tenderness, swelling or bruising.

[60]        
Dr. Piper referred to the results of an x-ray carried out in April of
2009 which showed very mild right sided scoliosis in the lumbar spine, with no
post-traumatic changes evident. Dr. Piper also referred to the CT scan of
the plaintiff’s cervical spine in June of 2009 which revealed mild cervical
spondylosis, with a small disc protrusion at the C4-5 but no nerve root
compromises detected.

[61]        
Based upon his examination as well as the other medical reports made
available to him, Dr. Piper stated that he was unable to find any
orthopaedic pathology that he could attribute to the MVA. In his opinion, the
mild degenerative changes revealed in the imaging studies were consistent with
the plaintiff’s age and general deconditioning. Accordingly, Dr. Piper concluded
the plaintiff was capable of returning to any vocation for which he had the
appropriate training. Dr. Piper recommended the plaintiff participate in a
weight loss and an active exercise program.

[62]        
Dr. Piper agreed, in cross examination, that the absence of objective
findings does not necessarily mean the absence of pain.

Psychological Injuries

[63]        
The plaintiff saw five psychiatrists following the MVA, all of whom
diagnosed the plaintiff differently. Two psychiatrists gave evidence at trial,
Dr. Levin and Dr. Ancill. Dr. Joy, a psychologist, also gave evidence.

Dr. Levin

[64]        
Dr. Levin gave evidence at the trial at the request of the defendant. He
conducted a psychiatric assessment of the plaintiff on May 15, 2013 and
prepared two reports dated May 26, 2013 and August 26, 2013, based on the
interview of the plaintiff and a review of medical and related documentation. The
second report was a rebuttal to Dr. Ancill’s report.

[65]        
Dr. Levin is Russian speaking and interviewed the plaintiff in Russian,
which is the plaintiff’s first language. Dr. Levin found the plaintiff to
be only superficially cooperative and frequently responded to questions with “I
don’t remember”.

[66]        
In Dr. Levin’s opinion, the ambulance and hospital personnel who
attended on the plaintiff after the MVA do not describe any objective acute post-concussive
symptoms or state of confusion sufficient to support his having sustained a
clinically significant concussion in the MVA. Further, the plaintiff’s normal
CT head results would rule out any significant organic brain pathology that
would explain his reported severe cognitive difficulties.

[67]        
Dr. Levin was of the opinion that the plaintiff’s complaints of
cognitive difficulties and emotional disturbances are not consistent with the
nature of his injuries sustained in the MVA.

[68]        
Further, Dr. Levin did not find that the plaintiff’s “description
of his depressive/anxiety symptomatology severe enough to consider a diagnosis
of a major depressive episode or any other psychiatric condition of disabling
proportions”. Accordingly, in Dr. Levin’s opinion, the plaintiff has been
and is capable of working.

[69]        
Dr. Levin disagrees with Dr. Ancill’s diagnosis and prognosis for
the plaintiff on the basis, among other things, that Dr. Ancill’s
diagnosis of a mild concussion would not explain the plaintiff’s report of
worsening forgetfulness and decline in functioning. Dr. Levin notes that a
concussion is not a progressive psychiatric condition and post-concussion
symptoms usually disappear gradually rather than become worse and, in that
regard, refers to the new DSM-V diagnostic criteria for major and mild
neurocognitive disorder due to traumatic brain injury.

[70]        
Dr. Levin stated that Dr. Ancill’s report of the plaintiff playing
keyboard, reading, watching documentaries and socializing with many friends is
consistent with his own finding of unimpaired social functioning and
inconsistent with severe depression.

Dr. Ancill

[71]        
Dr. Ancill was retained by plaintiff’s counsel to do a rebuttal to Dr. Levin’s
report.

[72]        
Dr. Ancill conducted a psychiatric assessment of the plaintiff on August
13, 2013 and his report is dated August 15, 2013. In coming to his conclusions,
he also considered the medical reports available to him, including the report of
the plaintiff’s general practitioner, Dr. Kalinowski, and the medical and
related documentation.

[73]        
Dr. Ancill reported that the plaintiff was cooperative and pleasant. He
was able to establish a good rapport with the plaintiff and did not need much
assistance from the interpreter. Dr. Ancill reported that he did not use
dramatic terms to describe his pain and his behaviour was appropriate and in
context, although he was vague about details and dates.

[74]        
In Dr. Ancill’s opinion, the plaintiff had a range of physical,
cognitive, functional and emotional symptoms that were not present prior to the
MVA. He concluded that the plaintiff sustained a concussion in the MVA,
resulting in post-concussive syndrome. In his opinion, the symptoms resulting
from the concussion cannot be viewed in isolation and his depression, anxiety
and pain will contribute to the symptoms and act as symptom amplifiers.

[75]        
Dr. Ancill diagnosed the plaintiff with mild to moderate depression,
cognitive disorder NOS, pain disorder, chronic pain, post-traumatic headaches
and mild brain injury. In his opinion, the plaintiff’s prognosis for further
recovery was poor – because he was over 40 and depressed at the time of the MVA
and other psychiatric problems had emerged and persisted. He concluded that his
depression, anxiety and pain do not account for the totality of his post-MVA
problems and that his cognitive complaints may affect his functioning.

[76]        
Although Dr. Ancill stated in his report that the plaintiff’s chronic
pain has affected his enjoyment of life, when asked in cross examination about
the plaintiff’s reports of engaging in activities such going out with his “many
friends” and playing the keyboard, Dr. Ancill said the plaintiff’s
depression was mild to moderate and not so severe as to restrict social
interactions.

[77]        
Dr. Ancill disagrees with Dr. Levin’s opinion in a number of
respects. For example, with regard to Dr. Levin’s reliance on the
ambulance and emergency room reports, Dr. Ancill notes that these records
do not document what the plaintiff could and could not recall about the MVA
and, in that regard, the plaintiff’s complaints about his cognitive functioning
and fatigue following the MVA are the very complaints which make the concussion
clinically significant.

Dr. Joy

[78]        
Dr. Joy was requested by plaintiff’s counsel to conduct a psychological
assessment of the plaintiff. He interviewed the plaintiff and administered
psychological tests on June 20, 2013. His report is dated July 8, 2013.

[79]        
Dr. Joy provided a multi-axial diagnosis of the plaintiff’s condition:
depressive disorder NOS, anxiety disorder NOS, and somatoform disorder NOS. In
his opinion the plaintiff’s condition is a result of the MVA.

[80]        
Although Dr. Joy acknowledged that the plaintiff’s pre-MVA amnesic
event may have some bearing on his diagnosis and that there was a lack of pre-MVA
medical records on file, he found it significant that at the time of the MVA the
plaintiff was doing well with his work and was not in active treatment.

[81]        
Dr. Joy referred to the psychosocial and environmental problems and stressors
affecting the plaintiff’s treatment and prognosis and, specifically, to the
plaintiff’s complaints of fatigue, disturbed sleep, low energy, and cognitive
impairments.

[82]        
Based upon a global assessment of his psychological, social and
occupational functioning, Dr. Joy concluded that the plaintiff had
moderately severe impairment in his level of functioning. In his opinion, the
plaintiff has an “ongoing partial disability” in various areas of his life and
is “competitively unemployable”. Dr. Joy expressed the opinion that a
driving job is the only work that would match the plaintiff’s skill level and
that the plaintiff questioned whether he can safely perform this type of work.

[83]        
Dr. Joy reported that there is currently no psychological, psychiatric
or counselling treatment being provided, although there has been some
individual and group therapy in the past, as well as medication, which did not
result in significant gain.

[84]        
Dr. Joy recommended conditioning exercise, psychological counselling and
volunteer or paid employment to engage the plaintiff in the community. In his
opinion a return to paid or volunteer employment was the solution or partial
solution to the plaintiff’s depression, anxiety and somatoform diagnosis.

Credibility and Reliability of Evidence

[85]        
The factors to be considered when assessing credibility were summarized
by Madame Justice Dillon in Bradshaw v. Stenner, 2010 BCSC 1398 at para.
186, aff’d 2012 BCCA 296, as follows:

Credibility involves an
assessment of the trustworthiness of a witness’ testimony based upon the
veracity or sincerity of a witness and the accuracy of the evidence that the
witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452,
50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of
his memory, the ability to resist the influence of interest to modify his
recollection, whether the witness’ evidence harmonizes with independent
evidence that has been accepted, whether the witness changes his testimony
during direct and cross-examination, whether the witness’ testimony seems
unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and
the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N.
202 (Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.) [Faryna];
R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately,
the validity of the evidence depends on whether the evidence is consistent with
the probabilities affecting the case as a whole and shown to be in existence at
the time (Faryna at para. 356).

[86]        
If the plaintiff’s account of his or her change in physical, mental, and
or emotional state as a result of the accident is not convincing, then the
hypothesis upon which any expert opinions rest will be undermined: Samuel v.
Chrysler Credit Canada Ltd., 2007 BCCA 431 at paras. 15, 49-50.

[87]        
Counsel for the defendant submits that the plaintiff’s testimony at
trial demonstrates that he was not a reliable historian of the events about
which he testified and that he was selective in the information he provided to
the others about his injuries and his circumstances prior to the MVA. She notes
discrepancies between what the plaintiff told Dr. Levin and what he told
other physicians. Counsel submits that there is a need to exercise caution in
relying on his evidence and the evidence of expert witnesses who base their
opinions on what the plaintiff told them.

[88]        
Counsel for the plaintiff responds by cautioning the court against
placing  weight on Dr. Levin’s report which, counsel submits, was not
objective and which improperly commented on the plaintiff’s credibility: Hosking
v. Mahoney, 2009 BCSC 803 at para. 67. Further, counsel contends that any
attack on the plaintiff’s credibility must account for the following: the
evidence that the plaintiff did sustain a concussion in the MVA; the lack of
any obvious reason for the plaintiff to conceal or misrepresent; the plaintiff
having volunteered information about his prior psychiatric condition; and the fact
that the plaintiff did not tailor his evidence to maximize his claim for
damages.

[89]        
I agree with counsel for the plaintiff that it is the role of the court,
and not an expert, to assess a witness’ credibility and reliability. However,
in this case I agree with counsel for the defendant that the plaintiff was generally
a poor historian and, at times, was not candid in his responses. He was vague
and imprecise about events in his past and in his description of his medical
condition before and after the MVA.

[90]        
For example, the plaintiff was vague in his evidence about his life
before coming to Vancouver, specifically: what he did during the time he was
working in Poland, what he did just prior to his coming to Canada, and the
circumstances of his one month hospitalization in Toronto. He was also unable
to recall when significant events in his life occurred. He could not recall
what date or year he married Diana and was not clear as to when they separated.
He stated that he separated from Diana in 2001 or 2002, but subsequently stated
it was after the amnesia incident in 2005. He initially said he was up to date
with his support payments for his son and later said that he wasn’t sure. He
was unclear in his evidence as to the year he moved to Vancouver and when he
started to work for Sunshine cabs.

[91]        
He was imprecise in descriptions of his injuries. The plaintiff gave
only general descriptions of the symptoms he said he experienced from the MVA.
For example, although he described the injury to his ankle as the second most
serious injury and as one of the reasons he could not drive taxi, his
description of the injury was essentially limited to it feeling “bruised”. He
did not explain why the injury prevented him from driving.

[92]        
His reluctance to volunteer information was evident in his failing to be
candid about his work activities since the MVA and in his telling only certain of
the physicians who examined him about the one month period of hospitalization
in Toronto.

[93]        
That said, he was able to provide detailed information about certain matters
such as how his pay was calculated when he was working as a driver in Toronto
and the hours he worked in various jobs.

[94]        
While I did not find the plaintiff to be deliberately untruthful, I
found that his accounts were not always reliable. Where I consider that his
evidence is unreliable on material issues or should be discounted, I will
address this in the course of my reasons.

Liability

[95]        
As noted above, the defendant has admitted liability for the MVA.
However, the defendant submits that the plaintiff should be held contributorily
negligent for his injuries for failing to wear a seat belt.

[96]        
Counsel for the defendant refers to Zoney v. Wakefield, [1994]
B.C.J. 1299, as support for her submission that a taxi driver may be found
contributorily negligent, despite an exemption from the statutory obligation to
wear a seat belt. She asserts that engineering evidence is not necessary to
prove less severe injuries would have been sustained had a seat belt been worn
and that a common sense approach is sufficient, Lakhani (Guardian ad litem
of) v. Samson [1982] B.C.J. No. 397.

[97]        
Counsel for the plaintiff responded that the defendant had admitted in
the course of trial that the collision was caused solely by the negligence of
the unidentified motorist. Further, and in any event, the defendant submits
that the defendant led no evidence that the injuries would have been prevented
or lessened had the plaintiff been wearing a seat belt, Hooiveld v. Biert
(1993), 87 B.C.L.R. (2d) 160.

[98]        
I note that in the Lakhani case, the trial judge found that the
evidence was clear that the use of the seat belt would have prevented some of
the plaintiff’s injury. And, in the Hooiveld case, the Court of Appeal
upheld the trial judge’s finding that the plaintiff should not be
contributorily negligent for not wearing a seat belt properly where there was
no evidence that the injuries would have been prevented or lessened had the
seat belt been used properly.

[99]        
In this case, the physicians who were called were not asked about the
effect of not wearing a seat belt on the plaintiff’s injuries. Further, the
evidence was that the plaintiff had just picked up his passengers, who had
flagged him down, when the MVA occurred. In these circumstances, I am not able
to find that the plaintiff’s injuries would have been prevented or lessened if
he had worn a seat belt or that he should be found contributorily negligent.

Causation

[100]     The
plaintiff must establish on a balance of probabilities that the defendant’s
negligence caused or materially contributed to an injury. The defendant’s
negligence need not be the sole cause of the injury so long as it is part of
the cause beyond the range of de minimus. Causation need not be
determined by scientific precision:  Athey v. Leonati, [1996] 3
S.C.R. 458 at paras. 13-17; Farrant v. Laktin, 2011 BCCA 336 at
para. 9.

[101]     The
primary test for causation asks: but-for the defendant’s negligence, would the
plaintiff have suffered the injury? The “but-for” test recognizes that
compensation for negligent conduct should only be made where a substantial
connection between the injury and the defendant’s conduct is present: Clements
v. Clements, 2012 SCC 32.

[102]    
Where there is a claim for psychological injury, the principles to be
applied in assessing such claims was summarized by Justice Lambert in Yoshikawa
v. Yu (1996), 21 B.C.L.R. (3d) 318 at para. 12 (C.A.):

12 It is important to understand what is established
and what is not established by the decision in Maslen v. Rubenstein. I propose
to set out a number of principles extracted from the reasons of Mr. Justice
Taylor, for the Court, in the Maslen case. The first point is a preliminary
point and appears in Maslen at p.133 under the heading "(a) The
Background":

1. The
plaintiff must establish that the pain, discomfort or weakness is
"real" in the sense that the victim genuinely experiences it.

The remaining ten points are drawn from the part of the
reasons headed "(b) The Basic Principles" at pp.134 to 137:

2. The
plaintiff must establish that his or her psychological problems have their
cause in the defendant’s unlawful act.

3. The
plaintiff’s psychological problems do not have their cause in the defendant’s
unlawful act if they arise from a desire on the plaintiff’s part for such
things as care, sympathy, relaxation or compensation.

4. The
plaintiff’s psychological problems do not have their cause in the defendant’s
wrongful act if the plaintiff could be expected to overcome them by his or her
own inherent resources, or "will-power".

5.If
psychological problems exist, or continue, because the plaintiff for some
reason wishes to have them, or does not wish them to end, their existence or
continuation must be said to have a subjective, or internal, cause

6. If a court
could not say whether the plaintiff really desired to be free of the
psychological problems, the plaintiff would not have established his or her
case on the critical issue of causation.

7. Any
question of mitigation, or failure to mitigate, arises only after causation has
been established.

8. It is not
sufficient to ask whether a psychological condition such as "chronic,
benign pain syndrome" is "compensable". Such a psychological
condition may be compensable or it may not. The identification of the symptoms
as "chronic benign pain syndrome" does not resolve the questions of
legal liability or the question of assessment of damages.

9. It is
unlikely that medical practitioners can answer, as matters of expert opinion,
the ultimate questions on which these cases often turn.

10. Mr.
Justice Spencer, at trial in the Maslen case, put the overall test quite
correctly in these words:

[C]hronic benign pain syndrome will
attract damages … where the plaintiff’s condition is caused by the defendant
and is not something within her control to prevent. If it is true of a chronic
benign pain syndrome, then it will be true also of other psychologically-caused
suffering where the psychological mechanism, whatever it is, is beyond the
plaintiff’s power to control and was set in motion by the defendant’s fault.

11. There must be evidence of a
"convincing" nature to overcome the improbability that pain will
continue, in the absence of objective symptoms, well beyond the recovery
period, but the plaintiff’s own evidence, if consistent with the surrounding
circumstances, may nevertheless suffice for the purpose.

[103]    
The concept of “reasonable foreseeability” is subject to a qualification
when the injury is psychiatric in nature. As Justice Bennett stated in Hussack
v. Chilliwack School District No. 33, 2011 BCCA 258 at para. 74:

…where the psychiatric injury is
consequential to the physical injury for which the defendant is responsible,
the defendant is also responsible for the psychiatric injury even if this
injury was unforeseeable. See White v. Chief Constable of South Yorkshire
Police, [1999] 2 A.C. 455 at 470, Varga v. John Labbatt, [1956] O.R.
1007, 6 D.L.R. (2d) 336 (H.C.);Yoshikawa v. Yu (1996) 21 B.C.L.R. (3d)
318, 73 B.C.A.C. (C.A.); Edwards v. Marsden, 2004 BCSC 590; Samuel v.
Levi, 2008 BCSC 1447.

[104]     Applying
these principles to this case, I must determine whether the MVA caused the plaintiff’s
injuries and, if it did, whether there were pre-existing conditions which would
have detrimentally affected the plaintiff in the future, regardless of the
defendant’s negligence.

Position of the Parties

[105]     In this
case, the defendant does not dispute that the plaintiff sustained soft tissue
injuries to his neck and back, extending into his right hip and ankle as a
result of the MVA. However, the defendant does not agree that the physical
injuries were as extensive as the plaintiff contends. Counsel for the defendant
submits that Dr. Kalinowski and Dr. Parhar accepted at face value the
symptoms reported by the plaintiff and submits, therefore, Dr. Piper’s
opinion that there was not significant orthopaedic pathology that could be attributed
to the MVA should be preferred.

[106]     Counsel
for the defendant also submits that Dr. Levin’s opinion that it is
unlikely that the plaintiff suffered a clinically significant concussion that
could explain his ongoing difficulties and fatigue should be accepted over the
evidence of Dr. Ancill and Dr. Joy.

[107]     In
response to the position of the defendant, counsel for the plaintiff relies on
the evidence of Dr. Kalinowski, Dr. Parhar, Dr. Ancill and Dr. Joy
as to the nature and extent of the plaintiff’s physical and psychological
injuries: that the soft tissue injuries to his neck, back, and ankle and his
psychological symptoms of depression, anxiety, sleep disturbance and chronic
pain, are essentially permanent in nature and that the multiple effects of the
plaintiff’s injuries are “interactive”.

[108]     With
respect to Dr. Levin’s report, counsel for the plaintiff submits that the
argumentative nature of Dr. Levin’s reports seriously undermines its
reliability and usefulness to the court.

Findings

[109]     As noted
above, it is not disputed that the MVA caused soft tissue injury. I am
satisfied from a consideration of the plaintiff’s evidence, which is supported
by medical evidence, that the force of the collision caused soft tissue injuries
to his neck and back, as well as headaches and dizziness.

[110]      With
regard to the plaintiff’s claim that his ankle began to feel bruised shortly
after the MVA, I note that the report of Dr. Kalinowski, which sets out
the plaintiff’s description of symptoms from late 2008 to 2013 does not refer
to the plaintiff having complained about his ankle, except for a reference in
2010 to “left ankle sprain” secondary to lower back pain. Given the number of
complaints made by the plaintiff during this period, I find the relative lack
of complaints about his ankle to be significant. I conclude that, while there
was bruising to his ankle resulting from the MVA, the injury to his ankle was
not severe and not comparable to the injury to his neck and back.

[111]     In that
regard, I accept that the neck and back pain, headaches and dizziness which the
plaintiff testified he experienced was initially intense and frequent. I also
accept that he continues to experience pain in his neck and back as well as
headaches and dizziness. However, I do not accept the plaintiff’s evidence that
the intensity of this pain has not changed at all in the five years since the
MVA or that the physical symptoms are as debilitating as he suggested in his
evidence. I found that the plaintiff was too quick to say there was no improvement
in his condition when he was asked about each of these injuries, without any
reflection on the intervening period.

[112]     I note
that his description of his condition in the period immediately after the
accident included his continuing to fall asleep at work, whereas by the time of
trial he described himself engaging in a series of daily activities, while modest
in scope, include socializing, reading, playing the keyboard, exercising, and watching
documentaries. His evidence was that that if the AdsProfit business venture he
began with a friend had worked out, he would continue to be involved with it.
This suggests some improvement in his physical and psychological condition.

[113]     I also note
the evidence of Dr. Piper was that when the plaintiff was examined in
2013, Dr. Piper found no evidence of muscle wasting and, in his opinion,
the plaintiff had very satisfactory to reasonable range of motion in his neck,
shoulders, back, legs and ankles, with no significant abnormalities revealed on
the CT, x-ray or MRI. I also note that Dr. Parhar, while he provides a
different diagnosis of the plaintiff’s condition, his objective findings on
examination of the plaintiff were similar to Dr. Piper’s. For example, he
noted that the plaintiff was able to walk without difficulty, could stand from
a squatting position, had normal cervical, thoracic, and lumbar flexion and
extension, with some decrease in cervical rotation.

[114]     I accept
Dr. Piper’s opinion that in 2013 there was no significant orthopaedic
pathology which can explain the plaintiff’s ongoing symptoms. I prefer Dr. Piper’s
opinion over Dr. Parhar’s opinion as Dr. Piper is a specialist in
orthopaedic medicine, unlike Dr. Parhar. I also prefer Dr. Piper’s opinion
over the plaintiff’s family physician in this regard. Although Dr. Kalinowski’s
report suggests the plaintiff’s level of pain continued unabated both, Dr.
Kalinowski and Dr. Parhar testified that they accepted as true what their
patients report.

[115]     I conclude
that it is more likely than not that the plaintiff’s soft tissue injuries
improved gradually since the period immediately following the MVA and the pain
is not at the same level of intensity. That said, as counsel for the plaintiff
points out, and Dr. Piper conceded, the fact that there may not be
orthopaedic pathology does not necessarily mean that the plaintiff cannot be
experiencing pain. I recognize that the plaintiff’s complaints of pain may be
intertwined with his psychological condition.

[116]     In that
regard, it is Dr. Ancill’s opinion that the plaintiff suffered a
concussion or mild brain injury in the MVA. Although Dr. Levin disputes
this conclusion, I prefer the evidence of Dr. Ancill on this point. In my
view, the diagnosis of Dr. Ancill is more consistent with the evidence of
the force of the collision, the plaintiff having hit his head in the collision,
the emergency room reports of the plaintiff being nauseous, sleepy and dizzy, the
primary discharge diagnosis of concussion and the plaintiff’s account of his
condition in the days following the collision.

[117]     With
regard to the effects of the concussion, while Dr. Ancill agreed in cross-
examination that post-concussive symptoms generally resolve within three months,
he qualified this response by noting that symptoms may persist when there are
other conditions present.

[118]     In the
case of the plaintiff, Dr. Ancill’s evidence was that the effect of the
concussion was compounded by the plaintiff developing depression, anxiety and
chronic pain from the MVA. I accept the evidence of Dr. Ancill that these
psychological conditions resulted from the MVA and that they contributed to the
plaintiff’s symptoms of pain.

[119]     With
regard to the plaintiff’s cognitive functioning, I note that Dr. Ancill,
Dr. Joy and Dr. Levin referred to the plaintiff’s reports of having
difficulty concentrating and remembering. I accept that the plaintiff
experienced such difficulties in the period following the MVA. However, in the
plaintiff’s evidence, he did not describe these difficulties or suggest they
were continuing to affect his functioning, nor did he describe them as
worsening. Further they were not complaints which were described in Dr. Kalinowski’s
detailed notes of the plaintiff’s visits over the years since the MVA. I find,
therefore, it’s more likely than not that his cognitive symptoms have
significantly diminished.

[120]     In
considering the plaintiff’s psychological condition, I have considered the
evidence that the plaintiff experienced some form of mental breakdown when he
lived in Toronto in approximately 2004. I note that since that time, and until
the MVA, the evidence is that the plaintiff was gainfully employed and working
full time. While he may have been more vulnerable to mental illness, I cannot
find that he would have experienced depression and anxiety regardless of the
MVA, neither the plaintiff nor the defendant sought to introduce medical records
from the plaintiff’s time in the Toronto area. There is a lack of evidence as
to how the plaintiff’s pre-existing condition may have affected him in the
future, Polovnikoff v. Banks, 2009 BSCS 750.

[121]     With
regard to the plaintiff’s claim that the MVA caused or contributed to the
plaintiff’s erectile dysfunction, I am not persuaded that, but for the accident,
he would not have had this condition. The evidence of the plaintiff is that he
complained about this condition to a physician in Toronto and that he made a
similar complaint to a Vancouver physician shortly before the MVA. The evidence
does not persuade me that there is a substantial connection between this
condition and the MVA.

[122]     In
conclusion, I find that the defendant’s negligence caused or materially
contributed to the plaintiff’s soft tissue injury and a mild brain injury and
conclude that these injuries resulted in a constellation of symptoms including
headaches, pain in his neck, back and ankle, as well as depression, anxiety, chronic
pain, sleep disturbance and difficulty with concentration. I also find that his
physical and cognitive symptoms have diminished gradually over time, although
he has residual pain. I further find his depression and anxiety continue to
affect his functioning and enjoyment of life.

Damages

Non-Pecuniary Damages

[123]    
Non-pecuniary damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life and loss of amenities. The compensation
awarded should be fair to all parties, and fairness is measured against awards
made in comparable cases. Such cases, though helpful, serve
only as a rough guide. Each case depends on its own unique facts: Trites
v. Penner, 2010 BCSC 882 at paras. 188-189.

[124]    
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined
the factors to be considered when assessing non-pecuniary damages at para. 46:

The inexhaustive list of common factors cited in Boyd
[v. Harris, 2004 BCCA 146] 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 arguably
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 BCCA 54).

[125]     The
correct approach to assessing injuries which depend on subjective reports of
pain was discussed in Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), and
Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.). In Price,
Chief Justice McEachern noted there must be evidence of a convincing nature to
overcome the improbability that the pain continued, in the absence of objective
symptoms, well beyond the normal recovery period:

In Butler v. Blaylock, [1981] B.C.J. No. 31, decided
7th October 1981, Vancouver No. B781505, I referred to counsel’s argument that
a defendant is often at the mercy of a plaintiff in actions for damages for
personal injuries because complaints of pain cannot easily be disproved. I then
said:

I am not stating any new principle when I say that the court
should be exceedingly careful when there is little or no objective evidence of
continuing injury and when complaints of pain persist for long periods
extending beyond the normal or usual recovery.

An injured person is entitled to be
fully and properly compensated for any injury or disability caused by a
wrongdoer. But no one can expect his fellow citizen or citizens to compensate
him in the absence of convincing evidence – which could be just his own
evidence if the surrounding circumstances are consistent – that his complaints
of pain are true reflections of a continuing injury.

Position of the Parties

[126]     Counsel
for the plaintiff submits that, in this case, the impact of the MVA on the
plaintiff has been profound and life-altering and that non-pecuniary damages should
be assessed within the range of $125,000 to $150,000.

[127]     He relies
on Adamson v. Charity, 2007 BCSC 671; Slocombe v. Wowchuk,
2009 BCSC 1903; Peso v. Hollaway, 2012 BCSC 1763; Sekihara v. Gill,
2013 BCSC 1387; and Moskaleva v. Laurie, 2009 BCSC 260.

[128]     Counsel
for the defendant submits that an award for non-pecuniary damages should be in
the range of $25,000 to $30,000. She submits that while the plaintiff sustained
soft tissue injuries to his neck and back as a result of the MVA, the
plaintiff’s reports of pain are out of all proportion with what would be
expected in the circumstances. Further, although she concedes that it is
possible that the plaintiff sustained a concussion as a result of the MVA, if
he did, she submits that it was mild.

[129]     She relies
on Job v. Van Blankers, 2009 BCSC 230; Sidu v. Johal, 2012, BCSC
587; and Foo v. Masardijian, 2009 BCSC 1519.

Discussion

[130]     I found
the authorities cited by the defendant to be less helpful, as they were
directed to damages for physical injuries.

[131]     While the
authorities referred to by counsel for the plaintiff involved cases where the
injuries are more similar to the plaintiff’s, there are differences between
those cases and the case before me. A number of those cases involved plaintiffs
who were elite athletes. Further, in those cases, there was evidence from
friends and family regarding the activities that the plaintiff could no longer
engage in, which demonstrated the severity of the impact of the injuries on
their daily lives.

[132]     In this
case there were no witnesses, other than the plaintiff, who were called to give
evidence as to his pre-injury and post-injury level of functioning.
Additionally, there were no medical reports from physicians prior to the MVA,
apart from handwritten notes from one visit to a walk-in clinic, regarding his
health prior to the MVA.

[133]     While I
accept the plaintiff’s evidence that the MVA had a significant impact on his
quality of life, the evidence in this case does not support an award of the
same magnitude as the cases referred to by counsel for the plaintiff. In that
regard, I also find that the plaintiff has, to a degree, overstated the impact
of his injuries. As noted above, the plaintiff’s description of his pain
symptoms was not wholly reliable. I found that there has been significant improvement
in his physical condition and he is no longer experiencing the same level or
frequency of pain. His depression, anxiety and chronic pain, while continuing,
are not at a level which precludes him from participating in the activities of
daily living – albeit on a significantly reduced basis.

[134]     That said,
the plaintiff is entitled to be compensated for the pain he has suffered and
for the loss of enjoyment of life and loss of amenities. He had come to
Vancouver for a new start and had been working hard at his new job driving taxi
before the MVA occurred. He now has to grapple with the effects of his
depression, anxiety, and residual pain, and his living situation has
significantly diminished. His way of life has been altered by the MVA. In these
circumstances, I consider that an award of $90,000 for non-pecuniary damages to
be fair and reasonable.

Loss of Earning Capacity

[135]    
The legal framework governing an award for loss of earning capacity was
summarized by Madame Justice Dardi in Midgley v. Nguyen, 2013 BCSC 693
at paras. 235-237and 240:

[235] The legal principle that governs the assessment for
loss of earning capacity is that, insofar as is possible, the plaintiff should
be put in the position he or she would have been in but for the injuries caused
by the defendants’ negligence: Lines v. W. & D Logging Co. Ltd.,2009
BCCA 106 (CanLII), 2009 BCCA 106 at para. 185. It is well-settled that an award
for future loss of earning capacity represents compensation for a pecuniary
loss: Gregory v. Insurance Corporation of British Columbia, 2011 BCCA
144 (CanLII), 2011 BCCA 144 at para. 32. Compensation must be made for the loss
of earning capacity and not for the loss of earnings: Andrews v. Grand &
Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229; X. v. Y,
2011 BSCS 944 at para. 188.

[236] The recent jurisprudence of the Court of Appeal has
affirmed that the plaintiff must demonstrate both an impairment to his or her
earning capacity and that there is a real and substantial possibility that the
diminishment in earning capacity will result in a pecuniary loss. If the
plaintiff discharges that requirement, he or she may prove the quantification
of that loss of earning capacity either on an “earnings” approach or a
"capital asset" approach: Perren v. Lalari, 2010 BCCA 140
(CanLII), 2010 BCCA 140 at para. 32. Regardless of the approach, the court must
endeavour to quantify the financial harm accruing to the plaintiff over the
course of his or her working career: Pett v. Pett, 2009 BCCA 232
(CanLII), 2009 BCCA 232 at para. 19; X. v. Y.at para. 183.

[237] As enumerated by the court in Falati v. Smith, 2010
BCSC 465 (CanLII), 2010 BCSC 465 at para. 41, aff’d 2011 BCCA 45 (CanLII), 2011
BCCA 45, the principles which inform the assessment of loss of earning capacity
include the following:

(i) The standard of proof in
relation to hypothetical or future events is simple probability, not the
balance of probabilities: Reilly v. Lynn, 2003 BCCA 49 (CanLII), 2003
BCCA 49 at para. 101. Hypothetical events are to be given weight according to
their relative likelihood: Athey at para. 27.

(ii) The court must make
allowances for the possibility that the assumptions upon which an award is
based may prove to be wrong: Milina v. Bartsch 1985 CanLII 179 (BC SC),
(1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff’d reflex, (1987), 49 B.C.L.R.
(2d) 99 (C.A.). Evidence which supports a contingency must show a
"realistic as opposed to a speculative possibility": Graham v.
Rourke 1990 CanLII 7005 (ON CA), (1990), 75 O.R. (2d) 622 at 636 (C.A.).

(iii) The court must assess
damages for loss of earning capacity, rather than calculating those damages
with mathematical precision: Mulholland (Guardian ad litem of) v. Riley
Estate 1995 CanLII 1971 (BC CA), (1995), 12 B.C.L.R. (3d) 248 at para. 43.
The assessment is based on the evidence, taking into account all positive and
negative contingencies. The overall fairness and reasonableness of the award
must be considered: Rosvold v. Dunlop, 2001 BCCA 1 (CanLII), 2001 BCCA 1
at para. 11.

[240] This court in Falati at para. 40 summarized the
pertinent legal principles governing the assessment of post-accident, pre-trial
loss of earning capacity and concluded that:

[40] …the determination of a
plaintiff’s prospective post-accident, pre-trial losses can involve considering
many of the same contingencies as govern the assessment of a loss of future
earning capacity. … As stated by Rowles J.A. in Smith v. Knudsen, 2004
BCCA 613 (CanLII), 2004 BCCA 613, at para. 29,

"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."

Past Loss of Earning Capacity

[136]     Compensation
for past loss of earning capacity is to be based on what the plaintiff would
have, not could have, earned but for the injury that was sustained:  Rowe
v. Bobell Express Ltd., 2005 BCCA 141 at para. 30; and M.B. v.
British Columbia, 2003 SCC 53 at para. 49.

[137]     Pursuant
to s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, a
plaintiff is entitled to recover damages for only his or her past net income
loss. This means that in the ordinary course the court must deduct the amount
of income tax payable from lost gross earnings: Hudniuk v. Warkentin,
2003 BCSC 62.

Position of Parties

[138]     Counsel
for the plaintiff submits that the plaintiff is entitled to be compensated for
the wages he would have earned as a taxi driver. Based on the evidence of the
economist who testified, Darren Benning, his income would have been in the
range of $25,000 to $30,000 per year. After deductions for income tax and
social assistance payments received, counsel for the plaintiff suggests that $77,000
is a conservative estimate of his net past lost earnings.

[139]     In
contrast, counsel for the defendant submits that the plaintiff is not entitled
to any damages for past earnings. She asserts that the plaintiff is capable of
earning an income and refers to the plaintiff’s involvement in the AdsProfit
venture and designing a website. She also refers to the medical evidence of Dr. Piper
and Dr. Levin that the plaintiff is capable of gainful employment.

[140]     The
defendant also contends that the plaintiff had a duty to mitigate and failed to
meet this obligation by not diligently looking for work, referring to the
principles outlined in Antoniali v. Massey, 2008 BCSC 1085, and Perren
v. Lalari, 2010 BCCA 140.

Discussion

[141]     In my view,
the defendant’s position that the plaintiff is not entitled to any compensation
for past loss of earning capacity does not sufficiently take into consideration
the plaintiff’s physical and psychological condition following the MVA.

[142]     In the
period immediately after the MVA, he found himself in pain and falling asleep
while he was driving taxi. It was reasonable in those circumstances for the
plaintiff not to continue to drive taxi for a period of time. While it would
ordinarily have been expected that the plaintiff would have returned to work on
a graduated basis, the effects of his physical injuries and concussion were
complicated by his psychological condition, in which he became depressed and
anxious.

[143]     Although I
have found the plaintiff’s physical and cognitive symptoms gradually improved,
he continued to experience depression and anxiety and developed symptoms of chronic
pain. These conditions delayed his return to work for a significant period
following the MVA. Had the MVA, not have occurred, I am satisfied that the
plaintiff would have continued as a taxi driver. He is, therefore, entitled to
be compensated for the past net income he would have earned but for the MVA.

[144]     That said,
five years have elapsed since the MVA. Should the plaintiff, as the defendant
contends, have sought to return to work at some point during this period?  The
onus is on the defendant to establish that the plaintiff acted unreasonably in
not seeking work and that reasonable conduct would have reduced or eliminated
the loss, Gilbert v. Bottle, 2011 BCSC 1389; and Schweighardt v.
Palamara, 2003 BCSC 1149.

[145]     I agree
with the defendant that the plaintiff’s participation in the AdsProfit venture
and designing a website demonstrates that the plaintiff had the capacity for
some type of work, despite his depression, anxiety and chronic pain. As noted
above, the plaintiff’s evidence was that he would have continued to be involved
in the AdsProfit if it had been successful.

[146]     Although
the plaintiff did make some effort to become re-engaged in work through the
AdsProfit and website design, and more recently made a few inquiries about what
he might do, I find these efforts were minimal. He did not try and return to
work as a taxi or truck driver on a part-time basis. There is no evidence that
he made a concerted effort to look for work based, for example, on his
experience in driving, sales or music – on a paid or volunteer basis. Had the
plaintiff done so, he would have been able to ascertain what he was capable of.
Although I cannot determine the extent to which he would have been employable,
I find there was a real and substantial possibility that he would have been
able to work in some capacity.

[147]     In all of
the circumstances, I am satisfied that the defendant has established that the plaintiff
did not take all reasonable measures to mitigate his damages by seeking other
work, which in this case could include returning to work as a taxi driving or
seeking other forms of employment, on a part-time or full-time basis.

[148]     Accordingly,
I consider that there should be a 10% deduction for the plaintiff’s failure to
take reasonable measures to mitigate his loss, reducing the assessment of his past
loss earnings from $77,000 to $69,300.

Loss of Future Earning Capacity

[149]     As stated
in Midgley, to be entitled to damages for loss of future earning
capacity, a plaintiff must demonstrate both impairment in his earning capacity
and a real and substantial possibility that any diminishment in earning
capacity will result in a pecuniary loss. The assessment of loss must be based
on the evidence, and not an application of a purely mathematical formula. The
overall fairness and reasonableness of the award must be considered.

[150]     There are
two possible approaches to assessment of loss of future earning capacity: the
“earnings approach” from Pallos v. Insurance Corp. of British Columbia
(1995), 100 B.C.L.R. (2d) 260 (C.A.) and the “capital asset” approach in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.).

Position of the Parties

[151]     In this
case, counsel for the plaintiff submits that an earnings approach is
appropriate on the basis that the plaintiff’s earning capacity is minimal
because of his limited skills and ongoing physical and psychological symptoms.
He submits that an appropriate award in light of the economist’s analysis, is
$250,000 to $350,000.

[152]     Counsel
for the defendant submits that the plaintiff has failed to prove that he is
entitled to any damages under this head. She refers to the evidence of Dr. Piper
that the plaintiff is capable of returning to work in any vocation for which he
has appropriate training and Dr. Levin’s opinion that the plaintiff’s
reported depressive/anxiety symptomatology would not warrant him having any
time off work.

Discussion

[153]     The
plaintiff has been out of the work force for over five years. He has become
physically deconditioned and has not coped well with his depression, anxiety
and chronic pain. He has become, to an extent, entrenched in a disability
lifestyle.

[154]     The
quantum of damages which the plaintiff claims in this case is predicated on the
conclusion that the plaintiff is permanently disabled from remunerative
employment. I accept that the plaintiff’s earning capacity has been impaired as
a result of the MVA. However, in my view, a consideration of all of the
evidence does not support the conclusion that the plaintiff is permanently
disabled from employment.

[155]     The
plaintiff’s involvement in the AdsProfit and website design work, as noted
above, demonstrates he is able to engage in some form of remunerative work.

[156]     Further, although
Dr. Parhar and Dr. Kalinowski are of the opinion that the plaintiff cannot work
as a taxi driver and has significant physical limitations on his capacity to
perform other work, there was no functional capacity evaluation or similar
testing conducted. Further, I find that this opinion is too reliant on the
plaintiff’s account of his physical restrictions – which I found to be
overstated. In my view, the objective medical evidence in relation to the
plaintiff’s injuries does not support the conclusion that he is disabled him
from driving a taxi or engaging in other types of work.

[157]     Further,
while I accept that the plaintiff continues to experience depression, anxiety
and chronic pain, I conclude that these conditions are not so severe as to preclude
him from working. Indeed, as Dr. Joy concludes, the plaintiff’s best prospect
of resolving his psychological difficulties involves him returning to some form
of work.

[158]     Nevertheless,
I do not discount the psychological effects of the MVA. I accept that it has
had a negative impact on the plaintiff’s sense of self-worth and his ability to
take advantage of all of the job opportunities which might otherwise have been
available to him.

[159]     I am
satisfied on the evidence that the plaintiff is currently less marketable to
prospective employers. Although the physical exercise and conditioning program
and psychiatric treatment and/or psychological therapy recommended by Dr. Joy
and Dr. Ancill would likely ameliorate ongoing symptoms, there is a real and
substantial possibility that his depression, anxiety and chronic pain will
detrimentally affect his earning capacity for a further period of two to three years.

[160]     Adopting
the “capital asset approach” to assess his future income loss, I assess his loss
of earning capacity at $90,000.

Costs of Future Care

[161]     The
plaintiff is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore him to pre-accident condition in so far as
possible. When full restoration cannot be achieved, the court must strive to
assure full compensation through the provision of adequate future care. The
award is to be based on what is reasonably necessary on the medical evidence to
preserve and promote the plaintiff’s mental and physical health:  Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.); Williams v. Low, 2000
BCSC 345; Spehar v. Beazley, 2002 BCSC 1104; and Gignac v. Rozylo,
2012 BCCA 351.

[162]     The test
for determining the appropriate award under the heading of cost of future care
is an objective one based on medical evidence. For an award of future care: (1) there must be a medical justification for claims for cost of
future care and (2) the claims must be reasonable: Milina at para.
84; and Tsalamandris v. McLeod, 2012 BCCA 239 at paras. 62-63.

Position of the Parties

[163]     Counsel for
the plaintiff submits that, based upon the economist’s projections, the
plaintiff is entitled to future care costs for medication of $10,492.20,
rounded to $10,500, and a lump sum for exercise and future chiropractic/massage
treatments of  $7,500.

[164]     Counsel
for the defendant submits that no award for the costs of psychopharmacological
or psychotherapeutic intervention is justified, as according to Dr. Levin, the
plaintiff did not develop any new, clinically significant psychiatric condition
as a result of the MVA. Further, there is no opinion before the court to
justify ongoing chiropractic treatment. Accordingly, counsel for the defendant
contends that any amount which is awarded should be modest, in the range of
$500 to $1,000.

Discussion

[165]     The
plaintiff is currently taking medication for his depression and anxiety. I
accept the evidence of Dr. Ancill that the plaintiff will continue to
require medication for his depression and anxiety and assess the future care
cost for medication at $10,500.

[166]     However, I
do not award future care costs for chiropractic treatments or massage therapy,
as there is insufficient medical justification for these less active forms of
treatment.

[167]     That said,
I accept the evidence of Dr. Piper and Dr. Kalinowski that the
plaintiff requires an active exercise conditioning program and the evidence of
Dr. Ancill and Dr. Joy that a course of psychological therapy or
psychiatric treatment would assist the plaintiff to redress the effects of the
MVA.

[168]     I award a
lump sum of $3,500 for the costs of personal training sessions and a community
center gym membership for five years.

[169]     While
there was no specific evidence as to the costs of such therapy/ treatment, Dr. Joy
recommended 10 – 12 therapy sessions, the cost of which I assess at $2,000.

Special Damages

[170]     It is well
established that an injured person is entitled to recover the reasonable
out-of-pocket expenses he incurred as a result of an accident. This is grounded
in the fundamental governing principle that an injured person is to be restored
to the position he or she would have been in had the accident not occurred: X.
v. Y., 2011 BCSC 944 at para. 281; Milina at para. 78.

[171]     In this
case, the defendant is agreeable to an award for special damages in the amount
claimed by the plaintiff of $4,231.80. I am satisfied that this amount is
justified and award the amount claimed by the plaintiff.

Summary

[172]     In
summary, damages are awarded as follows:

Non Pecuniary Damages   $  90,000

Past Loss of Income          $  69,300

Future Loss of Income       $  90,000

Costs of Future Care         $  16,000

Special Damages              $   4,231

Total                                 $
269,531

[173]     The
plaintiff is entitled to that amount, together with interest.

[174]     If the
parties are unable to agree on costs, they may speak to that issue.

“Madam Justice Harris”