IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140710

Docket: M083698

Registry:
Vancouver

Between:

Richard Bruno

Plaintiff

And

James R. Diamzon,
Howard Carter Lease Ltd.,
and Mondo Gelato (Denman) Inc.

Defendants

Before:
The Honourable Madam Justice Ross

Reasons for Judgment

Introduction

[1]            
This is a claim for damages for personal injuries arising from a motor
vehicle accident that occurred in September 2006 in Vancouver, when the vehicle
driven by the plaintiff Richard Bruno was rear ended by the vehicle driven by
the defendant James Diamzon. Liability is admitted.

[2]            
Mr. Bruno says that he suffered neck and back injuries which developed
into fibromyalgia, or a fibromyalgia-like condition, and a chronic pain
syndrome. He has been diagnosed with a chronic pain disorder associated with
both psychological factors, namely anxiety and depression, and a general
medical condition. Additionally, he has been diagnosed with major depressive
disorder, post-traumatic stress disorder, panic disorder with agoraphobia, and
generalized anxiety disorder.

[3]            
Mr. Bruno was able to maintain his employment for about five years after
the accident. He left work in August 2011 and has not worked since then. It is
the plaintiff’s position that he is now competitively unemployable and unlikely
to return to employment in the future.

[4]            
All heads of damages are contested. In addition, there are significant
issues to be dealt with respecting causation and the appropriate allowance to
be made for Mr. Bruno’s pre-existing medical conditions and predisposition to
develop the kinds of medical issues that have materialized post-accident.

Facts

Pre-Accident

[5]            
Mr. Bruno was born in 1965. He is presently 49 years old. He has two
brothers. Mr. Bruno was raised in Richmond and graduated from high school in
1983. During high school he worked part time at Dominion Motors cleaning cars.

[6]            
Mr. Bruno attended the University of British Columbia on a scholarship.
He obtained a bachelor of arts in political science and history in 1988. He
worked part time during the school year and full time in the summers at
Dominion renting out and cleaning cars.

[7]            
After graduation, Mr. Bruno joined Dominion as an insurance manager. He
then took a position with Regency Rent a Car. When that operation closed, he
took a position with Budget Rent-A-Car in 1993 as a claims manager. He stayed
with Budget until 2000.

[8]            
In 2000, Mr. Bruno moved to Family Insurance Solutions (“Family”),
starting as a subrogation clerk dealing with motor vehicle accident claims. He
then became an adjuster dealing with damage to motor vehicles. He took on a
supervisory position as auto team leader. Mr. Bruno then became a claims
analyst dealing with bodily injury claims. This was the position he occupied at
the time of the motor vehicle accident.

[9]            
Mr. Bruno testified that he enjoyed his work. His position with Family
was stable and secure and there were opportunities for advancement. It was his
plan to stay with Family for the rest of his working career. Shortly before
stopping work in 2011, Mr. Bruno had completed all of the necessary course work
to obtain his Certified Insurance Professional designation (“CIP”), which was a
certification that he required both for his current position and for any
promotions.

[10]        
Mr. Bruno is single. His last serious relationship ended in 1990. From
1998 to 2008, Mr. Bruno shared an apartment in Vancouver with his good friend Nefthali
Campos. In 2008, they purchased a house together which they co-own.

[11]        
Prior to the accident, Mr. Bruno enjoyed going for walks and exercising
at the gym, which he did three or four times a week. He owned a 1993 Ford
Mustang and took great pleasure in driving it, taking it to car shows and generally
caring for it, which involved detailing efforts that could take up to eight
hours of cleaning, waxing and polishing. He stated that one of the things that
he looked forward to in home ownership was the chance to take care of the
garden.

[12]        
Mr. Bruno described his general health before the accident as good. He
suffered from irritable bowel syndrome which had been initially diagnosed in
2000. The symptoms waxed and waned but were generally well managed with
medication. Flare-ups could produce pain and fatigue as well as bloating and
diarrhoea. Flare-ups could also have a detrimental effect on Mr. Bruno’s mood.

[13]        
Mr. Bruno had periodic complaints of right groin pain commencing in
February 2006. Eventually this was diagnosed as prostatitis. The symptoms of
this condition responded well to medication but were subject to periodic
flare-ups. One such flare-up occurred in December 2010 after the motor vehicle
accident. During flare-ups of the condition, Mr. Bruno would experience pain
and disturbed sleep, and his ability to lift weights would be affected.

[14]        
In examination-in-chief, Mr. Bruno reported no mental health issues that
he was aware of prior to the accident. On his Examination for Discovery, he
stated that he had received counseling in elementary school for separation
anxiety and obsessive compulsive behavior. He could not recall if there had
been any diagnosis. Counsel for the defendants submitted that this amounted to
a discrepancy that reflected poorly on Mr. Bruno’s credibility. I do not find
this to amount to an inconsistency in Mr. Bruno’s evidence.

[15]        
Dr. Ki-Sun Kim has been Mr. Bruno’s family physician since 1994. Dr. Kim
noted that in March 1999, Mr. Bruno attended complaining of chest tightness and
facial flushing unrelated to exercise. Dr. Kim felt this to be related to
anxiety secondary to work stress. He gave some advice concerning stress
management. No further investigations were undertaken and there are no further
entries in the clinical records pertaining to stress, anxiety or mood issues
prior to the accident.

[16]        
Mr. Bruno testified that he did not have a recollection of the 1999
consultation with Dr. Kim. He agreed in cross-examination that he might have
consulted with Dr. Kim regarding anxiety in 1999. Counsel for the defendants
submits that this, too, reflects negatively on his credibility. I do not agree.
This consultation occurred 15 years ago. It was an isolated incident. There
appears to have been no follow-up. Mr. Bruno does not deny that the
consultation occurred but says he does not recall it. There is nothing
surprising about that.

[17]        
Mr. Bruno has a family history of anxiety. He stated that his brothers
have both had some issues with anxiety for which they have been prescribed
medication. His mother has issues with anxiety and sleeping. In addition, he
believed that his father had some issues with anxiety but Mr. Bruno did not
know how severe those issues were. However, he did not think his father was
treated for mental health issues.

The Accident

[18]        
On the day of the accident, Mr. Bruno was driving his Mustang on his way
to visit a friend. He was on Victoria Drive at E. 41st Avenue, and was stopped
in traffic in the left-hand lane. He stated that he heard brakes screeching and
looked back to see a pick-up truck approaching in a manner that made it seem
that it would be unlikely to stop before hitting his car. He said the vehicle
was going from one lane to another. Mr. Bruno looked to see if he could get
into the lane beside him but there was no opening. The truck smashed into the
back of his car. He described the impact as significant. The car was moved
forward.

[19]        
Mr. Bruno stated that he moved the car to the side of the road and then
got out to inspect for damage. He was surprised that there was not more damage.
However, he felt a hot flash in his neck. He exchanged information with the
driver of the other vehicle and carried on to his friend’s house.

[20]        
By the time he reached his friend’s, his neck and shoulders were getting
sore and he had pain in his back. He felt shaken up from the accident and went
home. Some hours following the collision, he attended at St. Paul’s Hospital,
where he received an injection into the muscle and anti-inflammatory
medication. He was then discharged.

[21]        
Mr. Bruno continued to experience pain and stiffness in his neck, back
and shoulders. In addition, he had pain radiating down his right arm together
with numbness and tingling in his right hand.

[22]        
James Diamzon was the driver of the truck that hit Mr. Bruno’s vehicle.
He was driving a Chevy Sierra pick-up owned or leased by his employer. He
stated that as he approached the intersection, he could see the stoplight was
green but the cars were not moving. He saw Mr. Bruno’s vehicle with its brake
lights on and realized that he would be unable to stop before he hit the
Mustang. He saw Mr. Bruno’s vehicle move to the left and he tried to move to
the right as he applied his brakes. However, the vehicles ultimately collided.
He stated that he did not feel the impact.

[23]        
Mr. Diamzon agreed that in his statement to ICBC, he stated that following
the collision while he and Mr. Bruno were exchanging information, Mr. Bruno
said that his neck was a little sore but he was sure it would go away.

Post-Accident

[24]        
Mr. Bruno attended on Dr. Kim on September 15, 2006, where on
examination he was found to have reduced range of motion and tenderness in both
his neck and back which was worse on his right side. He was given a
prescription for an anti-inflammatory, instructed to do stretching and apply
heat, and given a referral for massage therapy.

[25]        
Mr. Bruno did not take time off work and did not go to massage therapy
because of his work commitments. He did, however, take the medication and perform
the stretching exercises as he had been instructed.

[26]        
Mr. Bruno returned to Dr. Kim on October 30, 2006 reporting that his
neck had not improved and he had discomfort and crepitus with movement. His
right shoulder and hand had improved. He was given a trial of medication to
improve his sleep and assist with a flare-up of his irritable bowel syndrome.

[27]        
He saw Dr. Kim in November and reported improvement. He returned to Dr.
Kim in mid-December, still symptomatic. Dr. Kim recommended that he attend
physiotherapy.

[28]        
In January 2007, an issue arose with Mr. Bruno’s income taxes. He owed some
$2,500 from a prior tax year. The Canada Revenue Agency issued a garnishing
order after he was late in making payment. Mr. Bruno was upset over this;
however, he telephoned the Agency and arranged for payment, in his recollection
the day he found out or within a few days after. The documents reflect a
payment made in full on January 23, 2007, together with an email exchange with
a human resources officer at Family dated the same day. It was his evidence
that the incident had no negative effect on his work or mental state.

[29]        
On January 31, 2007, Mr. Bruno experienced his first panic attack. He
stated that it was during the night. He was in bed unable to sleep. He was
experiencing neck pain that interfered with his ability to fall asleep when he
felt a sensation that he described as waves of unreality, and experienced
problems with his breathing. His heart rate was elevated and he was sweating.
Mr. Bruno stated that he was not ruminating on the Revenue Canada situation or
any other problem. He had never experienced anything like this before.

[30]        
Mr. Bruno stated that he tried to walk it off. Eventually, fearful that
he was having a heart attack he went to St Paul’s Hospital and admitted
himself. The physician who examined him explained that he was having a panic
attack, reassured him and prescribed Atavan. He returned home, was able to get
some sleep and went to work the next day.

[31]        
Mr. Bruno stated that this was the first of many such attacks. He stated
that they became more frequent and more severe as time went on.

[32]        
Mr. Bruno attended physiotherapy at Royal Centre as his doctor had
recommended. He found that it provided very modest benefits. He was still going
to the gym as often as he could and walking to work. He was still taking the
anti-inflammatory Naproxen and medication for sleep. Nonetheless, his neck and
lower back were still troublesome, and he was experiencing problems with sleep
and an increasing number of panic attacks.

[33]        
He testified that as the year progressed, he became increasingly
concerned with his lack of progress. While he had not yet missed any work, he found
that he was very tired from lack of sleep and felt that he was not as clearheaded
at work. In addition, he tried to avoid lifting heavy files at work. He was
experiencing cracking and crunching in his neck and frequent headaches. He was
not able to go to the gym as often as before but was still trying. He stated
that he was pressing on as best he could.

[34]        
He attended on Dr. Kim in April and reported that physiotherapy had not
helped, but the Amitriptyline he had previously been prescribed had been of
some assistance. He returned to Dr. Kim once more in December. He reported that
he was still applying heat and doing his stretching exercises. He stated that
his neck pain became worse through the day and there was ongoing crepitus. He
complained of mid and lower back pain. On examination there was a decreased
range of motion and crepitus.

[35]        
Mr. Bruno’s father died in May 2007. He testified that it had not been
unexpected. He took a one-week bereavement leave.

[36]        
Mr. Bruno testified that in late 2007 he started to get episodes of pain
in his wrists, elbows, legs and back. He said that it felt like he was getting
the flu but more insidious.

[37]        
Mr. Bruno testified that the pain remained throughout 2008. He continued
to suffer from panic attacks and experienced problems with sleep. His mood
became more and more depressed as his condition failed to improve. He was still
working out how to deal with the pain and felt very fatigued. This fatigue
began affecting his ability to work effectively.

[38]        
Mr. Bruno started taking the CIP courses in 2008. These were a
requirement for his work and he had previously put off starting the courses.
There were ten courses in all, which he completed in June 2011. He stated that
once he started taking the courses he enjoyed them. He took the courses online
so he could schedule the required work for when he felt more alert.

[39]        
He saw Dr. Kim in March of that year, still complaining of pain. Dr. Kim
concluded that the neck strain had become chronic and suggested a further trial
of Naproxen.

[40]        
He returned in April still troubled by pain, which increased throughout
the day and was regularly accompanied by headaches. He reported difficulty with
concentration, especially by late afternoon when his neck pain and headache
were worse. He was taking the Naproxen, but only every other day because it was
causing gastric upset. He had been unable to continue taking the continuing
education courses that were required for his work, which was a matter of some concern
for Mr. Bruno.

[41]        
In July, he reported to Dr. Kim that he was still taking Naproxen but it
was causing gastric upset. The Amitriptyline was helping with sleep but causing
drowsiness in the morning. He was continuing to do the exercises he had been
shown at physiotherapy. He told Dr. Kim that he was becoming depressed due to
the chronicity of his symptoms and his growing incapacitation. Dr. Kim made
some changes to his medication and advised him to follow up with his
physiotherapist.

[42]        
Mr. Bruno’s next visit to Dr. Kim in relation to these complaints was in
January 2009. He was seen on an urgent basis for neck pain. On examination he
was found to have spasm in the neck with hyperextended posture and tenderness.

[43]        
He was seen again in June, stating that he was having difficulty
sleeping because of the neck pain. He had continued to take medication at night,
and complained of clicking sounds with neck movement. Dr. Kim referred Mr. Bruno
to CBI Physiotherapy (“CBI”).

[44]        
Mr. Bruno attended at CBI where he received dry needling treatments. He
reported to Dr. Kim in July that he was waking up tired and becoming increasingly
forgetful. Dr. Kim encouraged him to keep up with his fitness activities.

[45]        
Mr. Bruno stated that his mood continued to deteriorate as time passed
and his pain did not improve. He was experiencing anxiety during the day and
panic attacks when he tried to sleep. He was still attending work but was having
difficulty thinking clearly.

[46]        
Mr. Bruno saw Dr. Kim in August still complaining of pain. He had
stopped the dry needling but was still continuing with the exercise modalities.

[47]        
Mr. Bruno was ill with pneumonia in February 2010 and missed two weeks’
work.

[48]        
Mr. Bruno then saw Dr. Kim in June 2010 for these issues, at which time
he was started on anti-depressants. He had stopped taking Naproxen due to the gastric
side effects. He was still complaining of upper and lower back pain and low
mood. There seemed to be a flare-up of his irritable bowel symptoms.

[49]        
He stated that during 2010 his mood remained low. The panic attacks
continued. Sleep deprivation was a big problem. He stated that since the
accident his roommate had taken on more of the heavy housework and this was causing
Mr. Bruno to feel guilty.

[50]        
Mr. Bruno attended on Dr. Kim in July, October and December 2010. He
described some improvement in his mood with the medication but stated there had
been no improvement with the pain. His irritable bowel syndrome was problematic.

[51]        
Mr. Bruno testified that his pain continued; no better though no worse,
in 2011. He experienced extreme fatigue. His mood was low and he was very
anxious. He felt that he was surviving at work. He tried to organize his work
so that the more complex tasks were done in the morning when he was more alert.
He was feeling very tired and worn out. He was continuing to have panic attacks
at night.

[52]        
Mr. Bruno said that up to that point there had been no issues with his
performance on the job. However, in February he was dealing with a major file
with a tight timeline (the “U-Haul File”). He recalled working through the
weekend to prepare for a meeting on Monday, but he was having difficulty with
his comprehension and ultimately made mistakes.

[53]        
He recalled being called to a meeting with his supervisors and asked for
an explanation. He said that he responded that he was having issues sleeping,
and remembered that he looked “out of it” at the time.

[54]        
After that incident he felt that his supervisor was closely monitoring
his performance. He was concerned that if he made any more mistakes he would be
fired. In the meantime, he was having increasing difficulty retaining
information and being proactive at work. Nonetheless, he was still trying to
push through as best he could.

[55]        
Mr. Bruno attended on Dr. Kim in March. During this visit he made
reference to anxiety attacks. He attended again in April describing a two-week
history of throbbing left arm pain along with fatigue and overall soreness. Dr.
Kim made a provisional diagnosis of soft tissue rheumatism. In June, Mr. Bruno reported
that the left arm pain was continuing together now with right wrist pain,
soreness and swelling.

[56]        
Mr. Bruno testified that during the spring and summer of that year, his
panic attacks escalated. He was now having attacks both at night and during the
day. He was in pain, not sleeping and very fatigued. He said that he felt
gravely unwell. His pain was now all over his body – arms, neck, back, and
knees. He was anxious and tired. He stated that he disliked being around people,
which made the office environment very problematic.

[57]        
Mr. Bruno testified that he came to his breaking point in August of that
year. He decided that he had to take time off work to address his issues. He
stated that at that time, he was in an acute state of distress. He stated that
his physical energy was very low, and that he was in pain all over.

[58]        
He went to see Dr. Kim, who gave Mr. Bruno a note to take a month off
work. Dr. Kim’s clinical records reflect that Mr. Bruno described symptoms of
panic attacks and agoraphobia. Dr. Kim suggested mental health referrals.

[59]        
Dr. Kim referred Mr. Bruno to a psychiatrist, Dr. Waridge who
recommended cognitive behavior therapy (“CBT”). Mr. Bruno commenced CBT to address
his anxiety and panic attacks. Part of the therapy was stress therapy, which
involved taking steps to intentionally induce an attack in order to practice
de-escalation strategies. As an example, he would get dropped off to attend an
appointment and then would force himself to take transit or a taxi home. Mr.
Bruno stated that he found the techniques he learned helpful in controlling the
panic attacks; however he still suffered from anxiety.

[60]        
Mr. Bruno was also referred to Dr. Le Page for therapy to deal with his
chronic pain. In December 2012, Mr. Bruno’s long-term disability insurer
decided not to fund any further therapy. By this time, he had been off work for
more than a year. He testified that his pain was no better. His mood had
improved somewhat with new medication. His anxiety was a little improved. He
did not feel able to return to work primarily because of pain and fatigue. He
was still not sleeping well.

[61]        
Mr. Bruno suffered his last panic attack in August 2013. It occurred
when he was stuck in traffic driving home from a car show where he had spent
much of the day. He stated that he still experiences extreme spikes of anxiety
but it is controlled with medication and therapy.

[62]        
In August of 2013 his employment with Family was terminated.

[63]        
At the time of trial Mr. Bruno was still off work. He reported that
there had been little change in his condition. He stated that if there was a
way to get back to work he would try. He stated that he has not given up on the
prospect of someday returning to work.

Lay Witnesses

Luisito Catanjal

[64]        
Luisito Catanjal was employed until his retirement in 2012 as a senior
claims analyst at Family. Starting in 2006, he worked directly with Mr. Bruno,
sharing an office. Mr. Catanjal trained Mr. Bruno in his new position. He described
Mr. Bruno as a hard worker, who enjoyed his work and was very good at it. He
stated that Mr. Bruno had people skills and got along very well with everyone.
He was aware of no problems Mr. Bruno had dealing with his supervisors. He was
very intelligent and had a good analytic mind. He believed that Mr. Bruno had a
good future with the company.

[65]        
Mr. Catanjal recalled that after the accident he observed Mr. Bruno to
become more irritable. At the time Mr. Bruno was dealing with the U-Haul File, Mr.
Catanjal observed him to be stressed. He stated that he was Mr. Bruno’s
immediate supervisor at the time he took his leave of absence. He was not surprised
that Mr. Bruno went off work.

Nefthali Campos

[66]        
Nefthali Campos is Mr. Bruno’s housemate. They have known each other for
years and been roommates since 1998. He stated that prior to the accident, Mr.
Bruno shared in the chores around the house. He enjoyed riding in his car,
shopping, going out to eat, and walking to work. He was not in pain, and was thinner,
healthier and fitter. He stated that the car was an important hobby for Mr.
Bruno and that he spent a great deal of his free time detailing the car. He
described Mr. Bruno as happy, pleasant and not irritable in the period before
the accident.

[67]        
Mr. Campos stated that since the accident, he has been able to see that
Mr. Bruno is in pain. Mr. Campos started doing most of the chores around the
house, all of the heavy cleaning, and the gardening. He has seen Mr. Bruno
become more irritable, particularly when he is a passenger in a car. Mr. Bruno
does not spend much time with his car, and Mr. Campos has taken over detailing it
for him.

Stuart Cox

[68]        
Stuart Cox was one of Mr. Bruno’s supervisors during the period of his
employment with Family, which started in 2002. Mr. Cox is now retired from
employment with Family.

[69]        
Mr. Cox recalled an incident at one point early in that period when he
got a call from one of Mr. Bruno’s creditors. He took this up with Mr. Bruno
and instructed him to deal with the matter. Mr. Bruno said he would take care
of it and Mr. Cox never received another such call.

[70]        
Mr. Cox noted that Mr. Bruno received positive employment appraisals
until the time he left. The appraisals dealt as well with areas that needed
attention and improvement. In Mr. Bruno’s case, a chronic issue from 2002
forward was the need to take the CIP courses. For years Mr. Bruno
procrastinated and this was an issue raised repeatedly in the appraisals.

[71]        
Mr. Cox stated that Mr. Bruno had excellent interpersonal skills. He did
not recall any change in his level of stress or irritability between 2006 and
2011.

[72]        
Mr. Cox recalled the U-Haul File and learning that another of Mr.
Bruno’s supervisors had issues with his work on that matter. There had been a
meeting when all participants had agreed to the direction for the U-Haul File,
including which counsel should be selected. However, after the meeting Mr.
Bruno went in a different direction and then denied that the participants had
agreed on a different course at the meeting or that he had received any
instruction in that regard.

[73]        
Mr. Cox agreed in cross-examination that it appeared that Mr. Bruno
either had not been listening or had not comprehended his instructions. He did
not believe that the issue was one of wilful disobedience.

[74]        
At that point Mr. Cox and the other supervisor decided that Mr. Bruno’s
work should be monitored. Several issues were uncovered in an audit of his files
undertaken in September of 2011.

[75]        
Mr. Cox testified that Mr. Bruno never said that he was having problems
arising from an accident or otherwise. He stated that Mr. Bruno never said that
he was not taking CIP courses because of the accident. However, this was
clearly not the case, since in the appraisal dated January 10, 2008 conducted
by Mr. Cox, Mr. Bruno noted in writing:

The past year has been very
difficult for me as I suffered an injury in [a] motor vehicle accident in
September 2006 and I have been suffering ever since with a great deal of pain
in my neck and upper back, as well as headaches and other pain. I find that by
mid afternoon I am increasingly in pain and have difficulty sitting and I am
having to work thru pain. This makes it exceedingly difficult to take-on the
task of evening study in development of a “CIP” designation presently. I am
under treatment from my physician and will advise as to my condition ongoing should
this continue to act as an impediment to extra-curricular study.

[76]        
Mr. Cox also testified that after the U-Haul File meeting he asked Mr.
Bruno if he was having issues or if he was on drugs. Mr. Bruno replied that he
was on medication, and that he was anxious and having difficulty sleeping. Mr. Cox
said Mr. Bruno should see his doctor to remedy the situation.

[77]        
Mr. Cox stated that Mr. Bruno never told him that he was having
difficulty managing his files. He said if he had, there were possibilities that
could have been explored and that efforts would have been made to accommodate
him. With respect to possible accommodation, Mr. Cox agreed that it would not
have been possible for Mr. Bruno to work at home.

[78]        
Mr. Cox’s evidence with respect to his attitude to accommodating Mr. Bruno
needs to be considered against Mr. Cox’s reaction to Mr. Bruno’s request in the
2008 appraisal to defer taking CIP courses because of his injuries. Mr. Cox
wrote:

…I can’t see any reason why this
is not started [sic] or achievable, especially since we fund the entire
course. As a result of Rick’s unwillingness to participate actively in his own
personal performance, I have no other option than to send a clear message to
Rick that this is what is required.

[79]        
When this was put to Mr. Cox in cross-examination, he conceded that Mr.
Bruno had told him he was injured and that this was affecting his work. He
agreed that his response had been “no more excuses”.

[80]        
The other part of the “clear message” mentioned in the performance
appraisal is that Mr. Bruno’s wage increase was set below the cost of living
increase.

Expert Medical Opinion

Dr. Kim

[81]        
Dr. Kim provided a medical legal report dated April 24, 2008. In that
report Dr. Kim states that:

Mr. Bruno was in good general
health prior to the accident, although he had a previous history of irritable
bowel syndrome, which was treated with diet and occasional courses of Dicetel,
an irritable bowel medication.

[82]        
Dr. Kim opined that:

Because of the length and
duration of Mr. Bruno’s symptoms, his further improvement will be slow, and
prognosis for full recovery is guarded. It is impossible to estimate for how
long he will continue to experience symptoms.

[83]        
Dr. Kim provided a second report dated September 9, 2011. This report
states in part:

As a result of the above motor vehicle accident, Mr. Bruno
had an initial diagnosis of muscular neck and back pain. Over the
ensuing five years, these symptoms have become chronic, despite medication,
physiotherapy, and an active exercise regimen.

In the years following the accident, Mr. Bruno has had
subsequent symptoms of low mood, cognitive difficulties, particularly later in
the day, and more recently, panic attacks with agoraphobia. I will defer to Dr.
Anderson’s higher level of expertise in the matter of psychiatric assessment
and diagnosis, but in his letter dated March 15, 2011, he diagnosed Mr. Bruno
with Panic Disorder with Agoraphobia, Generalized Anxiety Disorder, and
Depression.

As my narrative indicates, Mr. Bruno has also had a wider
constellation of physical symptoms with pain in the shoulders, arms and wrists.
These suggest a more general pain syndrome, and although I do not have a copy
of the rheumatologist Dr. Dunne’s assessment, Dr. Anderson’s report alludes to
a diagnosis of Fibromyalgia and a Chronic Pain Syndrome.

Mr. Bruno is presently off work, and on Short-Term
Disability. It is not certain when he will be able to return to work, as he has
limitations due to his Panic Disorder, and cognitive difficulties. These may be
helped when he is able to see a regular psychiatrist or psychologist, but any
response to future therapies is unknown. Similarly, whether Mr. Bruno will have
a permanent disability is also unknown at this time.

Mr. Bruno’s prognosis for
recovery, therefore, is guarded.

[84]        
A third report from Dr. Kim is dated October 11, 2013. In this report
Dr. Kim restates many of these findings, and once again notes that Mr. Bruno’s
prognosis for recovery remains guarded.

Dr. James Dunne

[85]        
Dr. James Dunne is a physician specializing in internal medicine with a
special interest in rheumatology, chronic pain and fatigue. Dr. Dunne provided
a report dated October 30, 2009. Dr. Dunne noted that Mr. Bruno presented with
mechanical neck and back pain, four quadrant soft tissue pain with associated sleep
disorder, and dysthemia compatible with fibromyalgia. He noted that Mr. Bruno
had only about 60% of normal movement of his spine and because of this he has
limited ability to move, sit, walk and exercise. This pain also interfered with
his sleep at night. Dr. Dunne also noted associated fatigue, which was
interfering with his ability to function, as well as anxiety and dysthemia. Dr.
Dunne stated:

…He now has chronic pain
syndrome which is entrenched and it is unlikely that either the functionality
of his lower back or his chronic pain syndrome will go away although they may
abrogate in time with intensive therapy. He does [have] a limitation of his
activity and his ability to function because of these and it is my opinion that
they all occurred following the motor vehicle accident and are due to the motor
vehicle accident.

[86]        
Dr. Dunne provided a second report dated July 13, 2011. His opinion was
as follows:

IMPRESSION

1.         Chronic mechanical neck and back pain.

2.         Abnormal
sleep patterns with four quadrant pain and associated anxiety and depression.

All of his symptoms are ongoing. He is the same as he was
when I saw him last in spite of going to the gym, exercising once a week, etc.
He has not improved. He has also started on antidepressants since I saw him
last but his mood has not lifted and his panic attacks have not remitted. His
activities of daily living are the same. He continues to be able to work, but
at a price of pain and difficulty with normal daily activities, with focus and
with memory.

In summary he has not improved.
His symptomatology and functionality are the same as when I saw him last and I
now would classify him as having chronic musculoskeletal pain and a chronic
pain syndrome which has not responded to medications and treatment and is therefore
well-entrenched and probably permanent.

[87]        
Dr. Dunne agreed that there are a number of factors or symptoms which
tend to occur in constellation or be associated with fibromyalgia, including
irritable bowel syndrome, a perfectionist personality, panic and anxiety
disorders, chronic stressful situations, and chronic hyper vigilance. He agreed
that some people have a predilection towards developing chronic pain syndromes
and that such syndromes can develop in the absence of trauma. Mr. Bruno clearly
had a number of these factors. It was Dr. Dunne’s opinion that the accident was
the sentinel event in Mr. Bruno’s case. He described a sentinel event as more
robust than a trigger.

Dr. Stephen D. Anderson

[88]        
Dr. Anderson is a psychiatrist. He provided a report dated March 15,
2011. This report states in part:

2.   As a
result of the MVA Mr. Bruno developed physical, cognitive and emotional
difficulties.

….

4.     Cognitively,
Mr. Bruno has experienced difficulties in a number of areas including
concentration, memory and focus. Mr. Bruno scored below the normal range on
routine cognitive screening. Mr. Bruno’s cognitive difficulties are likely due
to emotional factors including pain, anxiety, depression, insomnia, fatigue and
general stress.

5.     Emotionally,
in addition to developing a chronic pain disorder, Mr. Bruno developed
significant anxiety and depressive symptoms following the MVA. Mr. Bruno likely
never experienced sufficient symptoms to warrant a diagnosis of posttraumatic
stress disorder (PTSD) but he developed a panic disorder with agoraphobia and
generalized anxiety disorder (GAD) symptoms following the MVA. Mr. Bruno also
developed a major depressive disorder by the spring of 2010. He continues to
have a chronic major depressive disorder of mild to moderate severity.

6.     Mr.
Bruno would not have likely developed his present constellation of physical,
cognitive and emotional difficulties if he had not been injured in the
September 6th, 2008 [sic] MVA. Mr. Bruno did not have a past history of
psychiatric illness, apart from seeing a psychiatrist at the age of seven for
separation anxiety. Mr. Bruno did not have chronic back pain prior to the MVA
occurring, although he did have osteoarthritis in his finger, prostatitis and
IBS.

7.     As a
result of his symptoms Mr. Bruno has had a marked decrease in the overall
quality of his life. For example, Mr. Bruno has not been able to take part in
recreational activities he previously enjoyed (e.g. regular attendance at a
gym) due to his pain and fatigue.

8.     There
has likely been a strain placed on Mr. Bruno’s relationship with friends and
colleagues due to his emotional changes following the MVA (e.g. irritability).

9.    Mr.
Bruno has been able to continue working full time as a claims analyst since the
MVA occurred. However, Mr. Bruno has increased pain, fatigue and cognitive
difficulties in the afternoons and it is unclear how much longer he will be
able to continue working full time. Mr. Bruno’s vocational options have
narrowed as a result of his ongoing physical, cognitive and emotional symptoms.

….

11.   Long-term
prognosis for Mr. Bruno, from a psychiatric point of view, is guarded. Mr.
Bruno’s depression has partially responded to treatment with antidepressant
medication and his mood should continue to improve with psychotherapy. However,
as long as Mr. Bruno has chronic pain and functional limitations, he will
likely continue to have depressive symptoms.

Mr. Bruno’s panic disorder
symptoms, agoraphobic symptoms and generalized anxiety symptoms should improve
further with psychotherapy and medication. However, the fact that he has had
significant anxiety symptoms for over four years in duration bodes poorly for
his long-term psychiatric prognosis. The longer psychiatric disorders last the
less likely they are to respond to treatment.

I will defer the prognosis of Mr.
Bruno’s physical symptoms to physical medicine specialists. However, patients
who have had chronic pain disorder for over two years in duration usually
continue to be symptomatic despite treatment at a comprehensive
multidisciplinary pain clinic. Treatment at a pain clinic would teach Mr. Bruno
ways of better coping with his pain but would not likely lead to a marked
reduction of the pain itself at this point in time.

As long as Mr. Bruno has significant pain, fatigue,
insomnia, anxiety and depression, he will likely continue to have cognitive
difficulties.

[89]        
Dr. Anderson provided a second report dated November 1, 2013. This
report states in part:

In summary, my opinion regarding Mr. Richard Bruno is largely
unchanged from that given in my previous report of March 15th, 2011. Mr.
Bruno’s preferred psychiatric diagnoses at the present time include a chronic
pain disorder associated with both psychological factors (anxiety and
depression) and a general medical condition (deferred to physical medicine
specialists), major depressive disorder, posttraumatic stress disorder (PTSD),
panic disorder with agoraphobia and generalized anxiety disorder (GAD).
Although Mr. Bruno has a family history of anxiety disorders, he did not have a
past history of psychiatric illness, chronic pain or cognitive impairment. Mr.
Bruno’s constellation of physical, cognitive and emotional difficulties are
likely primarily due to the September 8th, 2006 MVA. There is no evidence that
Mr. Bruno would have developed his present constellation of physical, cognitive
and emotional difficulties if he had not been injured in the September 8th,
2006 MVA. As a result of his ongoing symptoms Mr. Bruno has had a marked
decrease in the overall quality of his life and his relationships with others
have likely been affected (e.g. due to his irritability). Mr. Bruno is not
likely competitively employable at the present time and this is unlikely to
change in future. An assessment from a vocational consultant, however, would be
of benefit…in better determining his long-term vocational prognosis.

Mr. Bruno has been motivated to have comprehensive treatment
but, despite his motivation and compliance to date, his physical, cognitive and
emotional difficulties have continued. Mr. Bruno will likely require treatment
with psychotropic medication, including both antidepressant medication and
anti-anxiety medication, on a long-term basis. Mr. Bruno will also likely
require psychotherapy with an experienced psychologist on a long-term basis in
order to prevent a further deterioration of his mood.

As indicated in my last report, the longer psychiatric
disorders last the less likely they are to remit with treatment. Prognosis is
also poor for patients who have more than one psychiatric disorder. The fact
that Mr. Bruno has had three anxiety disorders, and a major depressive
disorder, for over seven years in duration, despite appropriate treatment with
psychotherapy and pharmacotherapy, bodes poorly for his long-term psychiatric
prognosis. Mr. Bruno will not likely return to his premorbid level of emotional
functioning despite further treatment and the passage of time.

As long as Mr. Bruno has
significant anxiety, depression, insomnia, fatigue and pain he will likely
continue to have cognitive difficulties. With respect to his physical symptoms,
I will defer the prognosis to physical medicine specialists. However, Mr. Bruno
has a chronic pain disorder due to both physical and emotional factors.
Patients who have had chronic pain disorder for more than two years in duration
usually continue to be symptomatic despite treatment at a comprehensive
multidisciplinary pain clinic.

[90]        
Dr. Anderson agreed that a strong family history of anxiety can be predictive
with respect to panic attacks; however, if such a disorder was going to emerge,
it would most likely have happened while Mr. Bruno was in his late teens or early
20s. It is very rare for panic attacks to emerge after age 40. The late
presentation here suggests that family history is not relevant in Mr. Bruno’s
case.

[91]        
Dr. Anderson stated that he did not think that Mr. Bruno would have had
panic attacks but for the accident. It was his opinion that Mr. Bruno was
predisposed to developing panic and anxiety after a significant traumatic event.
In this case it is the chronic pain that has been the driving force.

[92]        
Dr. Anderson stated that depression, insomnia and anxiety all cause
cognitive difficulties. In his opinion, Mr. Bruno’s cognitive function is
impaired. He does not believe that Mr. Bruno’s medication regimen is affecting
his cognitive function.

[93]        
Dr. Anderson stated that in his opinion Mr. Bruno will not be
competitively employable in the future. He thought that the best case prospect
would be part-time work for a supportive, flexible employer in a position
involving very low stress. This would be possible only if Mr. Bruno continues
to improve.

Dr. Dan DeForge

[94]        
Dr. DeForge is a physiatrist. His report is dated September 14, 2013.
The report states in part:

His clinical picture, both in physical findings and history,
is classic for fibromyalgia rheumatica; in this case, since his symptoms did
not exist before the motor vehicle accident, it would be secondary rather than
primary fibromyalgia – secondary to the accident.

I will pause a moment to put together the question around
pre-disposition. The literature strongly suggests that although fibromyalgia is
not caused by depression and is not synonymous with depression, symptoms of
depression, fibromyalgia, irritable bowel syndrome and other physical
hypersensitivities and anxiety tend to cluster. It is likely that people with
pre-dispositions to depression and anxiety are also at risk for chronic pain
syndromes and irritable bowel disease.

It is likely, given his family
history and his clinical presentation, that he has an underlying susceptibility
to fibromyalgia, depression and anxiety. However, he did not experience these
symptoms until his motor vehicle accident. … however, this particular trauma,
or at least traumatic event, did precipitate his symptoms and there is no
evidence either by his history or his level of functioning or his medical
records that these symptoms pre-existed the accident.

[95]        
Dr. DeForge did not believe that Mr. Bruno’s symptoms would progress and
become more disabling in the future; however it was his opinion that given the
duration of the symptoms, particularly with respect to the fibromyalgia and
chronic pain, it was unlikely that there would be any significant improvement.
It was his opinion that the fibromyalgia was not the diagnosis most likely to
limit his vocational pursuits; rather it was the mood and panic disorders that
are most likely to reduce his vocational performance.

[96]        
Dr. DeForge stated that with respect to the cluster of factors that were
associated with fibromyalgia, it is not fair to say that the factors are
additive. In addition, the factors are not causative.

[97]        
He stated that, from the point of view of Mr. Bruno’s physical injuries,
there was the prospect that Mr. Bruno could attain some sort of employment in a
modified setting involving very low stress. However, he deferred to the
psychiatrist with respect to Mr. Bruno’s mood, anxiety and cognitive
difficulties.

Dr. Barry Koehler

[98]        
Dr. Barry Koehler is a rheumatologist. He provided a report dated
January 8, 2014 in which he noted that pursuant to the American College of
Rheumatology 2010 criteria, fibromyalgia is a subjective diagnosis describing a
clinical situation of pain and emotional distress. He concurred with Dr.
DeForge’s comment with respect to the role of the various conditions in
relation to Mr. Bruno’s vocational pursuits.

Dr. Stanley Semrau

[99]        
Dr. Stanley Semrau is a psychiatrist. He provided a rebuttal report
dated January 16, 2014, which addressed two issues: the likelihood that Mr.
Bruno would have developed an anxiety disorder in the absence of the accident
and what factors other than the accident contributed to the onset of the
anxiety disorder.

[100]     Dr. Semrau
notes that Mr. Bruno’s family mental health history creates an increased risk
of Mr. Bruno developing the same or related difficulties, including anxiety
disorder.

[101]     Dr. Semrau
agreed with Dr. Anderson’s diagnosis of panic disorder with agoraphobia. He
felt that a diagnosis of full generalized anxiety disorder would not be
justified due to overlap of symptoms. In his opinion, a diagnosis of post-traumatic
stress disorder was not warranted.

[102]     Dr. Semrau
took issue with Dr. Anderson’s statement that Mr. Bruno did not have a past
history of psychiatric illness because of the issue with separation anxiety as
a child which required treatment. He noted that childhood separation anxiety is
a common precursor to adult development of panic disorder and agoraphobia.

[103]     Dr. Semrau
stated that in his opinion, given Mr. Bruno’s personal and family history, he
was at substantial risk, which he estimated as at least 50%, of developing
panic disorder and agoraphobia in the absence of the accident. However, he
added the qualification that the anxiety disorder symptoms which Mr. Bruno had developed
were likely a good deal more serious than they would have been had the accident
not occurred.

Causation

[104]    
Mr. Justice Voith provides a useful summary of the applicable principles
of causation in Brewster v. Li, 2013 BCSC 774 at paras. 77-83, as
follows:

[77]      In cases of negligence, the plaintiff must
establish:  (1) that the defendant was the “cause in fact” of the damage
suffered and (2) that the defendant was a “proximate cause” of the damage, “in
other words, that the damage was not too remote from the factual cause. … The
remoteness inquiry assumes that but for the defendant’s wrongful act, the
plaintiff’s loss would not have occurred, but places legal limits on the
defendant’s liability” (Hussack v. Chilliwack School District No. 33,
2011 BCCA 258 at para. 54, 19 B.C.L.R. (5th) 257).

[78]      The plaintiff must establish causation for both
injury and loss. If a defendant did not cause an injury, (s)he is not
liable for the losses flowing from that injury. Even if a defendant did cause
an injury, (s)he is not liable for any losses or damages that were not caused by
the injury. In Blackwater v. Plint, 2001 BCSC 997 at para. 364, 93
B.C.L.R. (3d) 228 [Blackwater BCSC], Chief Justice Brenner, as he
then was, adopted the following dichotomy between “injury” and “loss”:

“injury” refers to the initial
physical or mental impairment of the plaintiff’s person as a result of the
[defendant’s act], while “loss” refers to the pecuniary or non-pecuniary
consequences of that impairment.

[79]      The basic principle of tort law is that the
defendant must put the plaintiff back in the position she would have been in
had the defendant’s tortious act not occurred (Athey v. Leonati, [1996]
3 S.C.R. 458 at para. 32). The corollary of this principle is that the
defendant need not compensate the plaintiff for any loss not caused by his/her
negligence or for “debilitating effects of [a] pre-existing condition which the
plaintiff would have experienced anyway” (Athey at para. 35).

[80]      Since the burden is on the plaintiff to prove
causation, she must establish that the defendant’s tortious act caused both
an injury (i.e. her pain disorder and/or her depression) and a resulting
loss (e.g. non-pecuniary loss or lost wages). “The former is concerned
with establishing the existence of liability; the latter with the extent of
that liability” (Blackwater BCSC at para. 363). In the case
at hand, if the plaintiff cannot establish that one of her injuries was caused
by the MVA, then she cannot recover from the defendant for the losses that
flowed from that injury. Additionally, if the plaintiff cannot establish that
the injury caused by the defendant, in turn, caused a certain loss, then she
cannot recover from the defendant for that loss.

[81]      The test for causation in Canada is the “but-for”
test (Bradley v. Groves, 2010 BCCA 361 at para. 37, 8 B.C.L.R.
(5th) 247; Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21-22, [2007]
1 S.C.R. 333; Blackwater v. Plint, 2005 SCC 58 at para. 78, [2005]
3 S.C.R. 3 [Blackwater SCC]; Clements v. Clements, 2012 SCC 32 at
para. 8, [2012] 2 S.C.R. 181). To assess whether the defendant caused an
injury, the trial judge asks if, without the defendant’s tortious act, the
injury would have resulted. If the answer is “yes”, the defendant is not liable
for the injury or the losses flowing from it (Athey at para. 41).
If the answer is “no”, the defendant is liable to the plaintiff for the whole
of the losses flowing from the injury (Athey at paras. 22 and 41).

[82]      Once causation for an injury is established, the
defendant is liable to the plaintiff for all of the loss(es) flowing
from that injury. The losses “flowing” from an injury are those losses which
the plaintiff proves, on a balance of probabilities, would not have occurred
“but-for” the defendant’s act (Blackwater SCC at para. 78; Smith
v. Knudsen, 2004 BCCA 613 at para. 26, 33 B.C.L.R. (4th) 76).

[83]      It is also necessary to recognize
that this case engages both “thin skull” and “crumbling skull” principles. Both
these principles were succinctly summarized in Athey:

[34]      … The "crumbling
skull" doctrine is an awkward label for a fairly simple idea. It is named
after the well-known "thin skull" rule, which makes the tortfeasor liable
for the plaintiff’s injuries even if the injuries are unexpectedly severe owing
to a pre-existing condition. The tortfeasor must take his or her victim as the
tortfeasor finds the victim, and is therefore liable even though the
plaintiff’s losses are more dramatic than they would be for the average person.

[35]      The so-called "crumbling skull" rule
simply recognizes that the pre-existing condition was inherent in the plaintiff’s
"original position". The defendant need not put the plaintiff in a
position better than his or her original position. The defendant is
liable for the injuries caused, even if they are extreme, but [need] not
compensate the plaintiff for any debilitating effects of the pre-existing
condition which the plaintiff would have experienced anyway. The defendant is
liable for the additional damage but not the pre-existing damage:
Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages
for Personal Injuries and Death (9th ed. 1993), at pp. 39-40.
Likewise, if there is a measurable risk that the pre-existing condition would
have detrimentally affected the plaintiff in the future, regardless of the
defendant’s negligence, then this can be taken into account in reducing the
overall award: Graham v. Rourke, supra; Malec v. J.C. Hutton
Proprietary Ltd., supra; Cooper-Stephenson, supra, at
pp. 851-852. This is consistent with the general rule that the plaintiff
must be returned to the position he would have been in, with all of its
attendant risks and shortcomings, and not a better position. [Emphasis in
original.]

[105]     The
position of the plaintiff is that in this case the accident was the cause of
the damage suffered. Counsel submits that while there is no doubt that Mr.
Bruno was vulnerable to developing chronic pain and anxiety, it was the
accident that caused him to develop these conditions. The accident was the
cause of Mr. Bruno’s injuries. Counsel submits further that Mr. Bruno would not
have suffered from these conditions in the absence of the accident.

[106]     The
position of the defence is that other events precipitated Mr. Bruno’s anxiety
and panic attacks. In addition, counsel submits that given his vulnerabilities,
other events following the accident would or could have triggered the chronic
pain disorder and psychological injuries in the absence of the accident.

[107]     I am
satisfied that as a result of the accident, Mr. Bruno has suffered mechanical
neck and back pain, fibromyalgia or chronic pain disorder associated with sleep
disorder and psychological factors, anxiety and depression, a major depressive
disorder, post-traumatic stress disorder, and panic disorder with agoraphobia.
I am satisfied that none of these injuries were the result of other causes or
that they would have materialized in any event had the accident not occurred.

[108]     The
defence has submitted that the panic attacks were caused or initiated by the
incident with the Canada Revenue Agency. It is clear that Mr. Bruno was angry
and annoyed at the Agency, and that the incident caused him embarrassment at
work. However, it is also clear that the issue was completely resolved with
payment in full on January 23, 2007 and that there were no further
repercussions at work. There is no evidence that Mr. Bruno was continuing to
ruminate about this incident after January 23, 2007. In addition, Mr. Bruno had
gone through an incident involving a call from creditors to his employer some
years before the accident. This incident, which was similar to that involving
the CRA, did not trigger any panic attacks.

[109]     The first
panic attack occurred on January 31, 2007. Mr. Bruno’s evidence, which I accept,
is that it arose from continuing pain and insomnia. Dr. Anderson’s evidence,
which I accept, linked the panic attack to the accident and the injuries, pain
and insomnia that followed.

[110]     I therefore
find that the panic attacks and anxiety disorder were caused by the accident. I
find further that it is not likely that Mr. Bruno would have suffered these injuries
in the absence of the accident.

[111]     The
defence has pointed to the death of Mr. Bruno’s father as another possible
precipitating event; however, there is no evidence that Mr. Bruno’s reaction
was other than normal and appropriate grief. Mr. Bruno contracted pneumonia in
2010; however, there is no evidence that this worsened the fibromyalgia which
had been diagnosed some months before or had any impact on the progression of
Mr. Bruno’s post-accident conditions.

[112]     Mr. Bruno
did experience general stress at work, and in 2011 experienced problems in
relation to the U-Haul File that significantly added to his stress levels.
However even with his pre-existing vulnerabilities, he had dealt with workplace
stress without suffering medical or psychological complications until the
accident. There is no reason to believe that would have changed.

Mitigation

[113]    
In Chiu v. Chiu, 2002 BCCA 618, Mr. Justice Low, for the court,
described the test for failure to mitigate as follows at para. 57:

[57]      The onus is on the
defendant to prove that the plaintiff could have avoided all or a portion of
his loss.  In a personal injury case in which the plaintiff has not pursued a
course of medical treatment recommended to him by doctors, the defendant must
prove two things: (1) that the plaintiff acted unreasonably in eschewing the
recommended treatment, and (2) the extent, if any, to which the plaintiff’s
damages would have been reduced had he acted reasonably.  These principles are
found in Janiak v. Ippolito, [1985] 1 S.C.R. 146.

[114]     The
defence submits that Mr. Bruno failed in his duty to mitigate his loss in that
he failed to fully follow Dr. Kim’s advice to receive physiotherapy and in that
he did not ask for any form of accommodation from his employer. The defence
relies upon Dr. Kim’s evidence that he typically prescribes physiotherapy
because he thinks it will do some good as a general rule, particularly in the
first year after a car accident. It was his opinion that it likely would have
helped Mr. Bruno. In addition, the defence relies upon Mr. Cox’s evidence that
some form of reduced workload or assignment to lower stress files would
probably have been available to accommodate Mr. Bruno.

[115]     Mr. Bruno
did commence physiotherapy on the two occasions when recommended by Dr. Kim. He
stopped both times because he found that it was not helping. The defence must
establish that it was unreasonable for Mr. Bruno to stop treatment and that
continuing to receive physiotherapy would have reduced his damages.

[116]     Mr. Bruno
did not ignore his doctor’s recommendation. To the contrary, he followed those
recommendations and found that the treatment was not helping. I conclude that
it was not unreasonable for him to do so. In addition, there is a difference
between physiotherapy being helpful as a general rule and being helpful in a
particular case. I find that the defence has not discharged its onus to establish
that taking more physiotherapy treatments would likely have improved Mr.
Bruno’s condition or reduced his damages.

[117]     With
respect to accommodation at work, as noted above, Mr. Bruno did raise his
injuries and did request accommodation with respect to the CIP courses in 2008.
In response, Mr. Cox refused to grant any accommodation, rejected the
legitimacy of the “excuse”, downgraded Mr. Bruno’s performance appraisal and
docked his salary increase. Later in 2011, after the difficulties with respect
to the U-Haul File, Mr. Bruno again stated that he was having difficulties. Mr.
Cox did not offer any assistance or accommodation.

[118]     I find
that in the circumstances, Mr. Bruno’s behaviour was not an unreasonable
failure in his duty. In addition, the actions of his employer speak louder than
words. I find that the defence has not discharged its onus with respect to the
availability of meaningful accommodation at work.

[119]     In the
result, the defence has not met its burden to establish that Mr. Bruno failed
in his duty to mitigate his loss.

Non-pecuniary Loss

[120]    
Mr. Bruno seeks an award for non-pecuniary damages in the amount of
$135,000. Counsel cites Marois v. Pelech, 2007 BCSC 1969, aff’d 2009
BCCA 286; Power v. White, 2010 BCSC 1084, aff’d 2012 BCCA 197; Morlan
v. Barrett, 2012 BCCA 66; and Morena v. Dhillon, 2014 BCSC 141.
Counsel submits that:

41.   There is little left of the life
Mr. Bruno had before the accident. He cannot work and has constant pain and
depression. While the combination of therapy, medication, and retreating from
the world into his home has kept the panic attacks away he is still plagued by
anxiety. He no longer is able to participate in the world in a meaningful way.
His prognosis is poor. While the physical medicine doctors may offer hope, Dr.
Anderson and the defence doctors do not. No one has a “magic bullet” to get him
better.

[121]     The
defence submits that the appropriate range of damages for non-pecuniary loss is
$85,000 to $110,000, citing the following: Tsalamandris v. MacDonald,
2011 BCSC 1138, var’d 2012 BCCA 239; Rizzotti v. Doe, 2012 BCSC 1330; S.R.
v. Trasolini, 2013 BCSC 1135; Paller v. Regan, 2013 BCSC 1672; and Cebula
v. Smith, 2013 BCSC 1939.

[122]     Counsel
submits that much turns on the determination of the situation Mr. Bruno would
have been in but for the accident, and on the real extent of his current
impairment. Counsel submits that events following the accident could have
precipitated the pain disorder and psychological injuries in the absence of the
accident, including workplace stress, the CRA incident, and the illness and
death of Mr. Bruno’s father. Counsel submits, in addition, that the court must
consider the possibility that Mr. Bruno would have developed some or all of his
physical and psychological complaints, given his predisposition to them, as a
result of some unknown future event.

[123]     Counsel
submits further that Mr. Bruno did not participate in sports or socialize
extensively before the accident. His social life since the accident is therefore
not much changed. Finally, counsel states that Mr. Bruno can clearly still
enjoy his primary hobby, showing his Mustang at car shows, with little
impairment.

[124]     In the
present case, prior to the accident Mr. Bruno had a fulfilling life. He enjoyed
his work, and took pleasure in the companionship of his friends and family. He
took great pleasure in his hobby, caring for and showing his Mustang, spending
hours detailing his car.

[125]     The
physical, psychological and emotional consequences of the accident have
negatively affected all aspects of his life. He is in constant pain. The
functionality of his back is impaired. His sleep is impaired and he suffers
from chronic fatigue. He requires medication and therapy to deal with his
anxiety, panic attacks, depression and agoraphobia. Ordinary activities of
daily living are now a struggle, and have become things he must force himself
to do as part of his “stress therapy”. He is not able to work. He is not an
equal partner around the home. While his condition, with appropriate treatment
and medication, is not likely to deteriorate further, his prognosis for
substantial improvement is poor.

[126]      
I agree, however, with the defence that this court must consider
the possibility that given his vulnerabilities, Mr. Bruno would have likely
developed some or all of these conditions in any event. As Smith J.A., for the
court, noted in T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003
BCCA 670 at para. 28:

[28]      … a pre-existing
condition, whether it is quiescent or active, is part of the plaintiff’s
original position.

[127]    
The appropriate approach was described by Newbury J.A. in York v.
Johnson (1997), 37 B.C.L.R. (3d) 235, 148 D.L.R. (4th) 225 (C.A.) at paras. 5
and 6 as follows:

5          It is certainly difficult to differentiate
conceptually in a case such as this one, between the court’s task with respect
to causation – making findings as to past events which may result in the apportionment
of damages – and the court’s task with respect to the measurement of damages –
a task that includes considering events that might have occurred in future “but
for” the accident and what may happen in the future in light of the
accident, and which usually results in the discounting or reduction of damages

6          Of course, the judgment as to the measure of
damages is a much more subtle one than that as to causation, not only because
it involves a consideration of mere contingencies as well as probabilities, but
because of the range of results available in the discounting of the award, as
opposed to the "all or nothing" choice that must be made with respect
to causation. But the two issues do not operate at cross-purposes even where,
as in this case, there is only one "cause" in tort law for the
plaintiff’s injury. The question is what award is appropriate to reflect the
difference between the plaintiff’s original state (including the risk, to which
she was subject immediately prior to the accident, of the relapse of her latent
condition) and the state in which she now finds herself.

[Emphasis in original.]

[128]     In this
case, Mr. Bruno’s vulnerabilities are part of his original condition. However,
in my view, the risk of him suffering these particular consequences absent the
accident is minimal. He had experienced the stress of the workplace, coped with
his irritable bowel syndrome and prostatitis, and experienced a stress equal to
or greater than the CRA incident without developing anxiety, depression,
insomnia, agoraphobia, chronic pain syndrome or panic attacks. He had
demonstrated a level of robustness despite these vulnerabilities.

[129]     The
defence places considerable significance on the minor nature of the accident. However,
the limited amount of motor vehicle damage is not, as Thackray J., as he then
was, stated in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 at para. 6,
[1993] B.C.J. No. 474 (S.C.), “the yardstick by which to measure the extent of
the injuries suffered by the plaintiff.”

[130]     In all the
circumstances, I find that non-pecuniary damages should be set at $120,000.

Past Income Loss

[131]     Mr. Bruno
claims $170,000 for net past income loss. This is based upon the calculations
found in the report of Darren Benning, an expert in the quantification of
pecuniary damages, which range from $168,000 to $174,000 net loss based upon 3%
and 5% income increase. Mr. Bruno claims the mid-point, asserting that he had
stable employment with a stable income and the possibility of advancement.
Counsel notes that Mr. Cox testified that he was given 3% each year to
distribute as a bonus to his staff. An individual could receive more or less
depending on his or her performance.

[132]     Counsel
for the defence submitted, once again, that if it is accepted that a past event
had a significant chance of causing the ailments from which Mr. Bruno now
suffers, that should be reflected in the award for past wage loss.

[133]     I do not
accept that there was a significant possibility that some intervening event
would have set off a chain of causation culminating in Mr. Bruno being unable
to work to the date of trial in any event. There is no doubt that Mr. Bruno had
a number of factors that made him vulnerable to anxiety and panic disorders. He
had a number of factors that are associated with, although not causative of,
fibromyalgia. However, despite the presence of these risk factors, prior to the
accident Mr. Bruno had been steadily employed, taking few sick days. Prior
stressful events such as difficulties with debt, stresses at work, other
illnesses, and pain caused by irritable bowel syndrome or prostatitis had not
precipitated any significant absence from work.

[134]     I am
satisfied that none of the events that occurred after the accident would have resulted
in the losses suffered absent the accident. Specifically, I find that none of
the workplace stresses, the incident with Revenue Canada, or the illness and
death of Mr. Bruno’s father, either singly or in combination, would have
precipitated the chronic pain disorder and other psychological conditions that
prevented Mr. Bruno from continuing in his employment.

[135]     I am
awarding $168,000 for past wage loss. While I accept that there was some
prospect of advancement, it was Mr. Cox’s evidence this prospect was in
actuality rather limited given Mr. Bruno’s lack of experience with several of Family’s
departments.

Loss of Future Earnings

[136]     In his
closing submissions at trial, Mr. Bruno sought an award of $1,100,000 for loss
of future earning capacity. The submission was based upon economic multipliers
used by Darren Benning. The economic multipliers used by Mr. Benning based upon
assumptions of either a 3% or 5% nominal wage growth per year with the
application of contingencies, produced $932,000 and $1,175,000.

[137]     Mr.
Bruno’s position was that the contingencies applied in that formulation were
far too conservative given his excellent work history. Counsel submitted that a
more accurate present value was $1,317,390, which represented the present value
of Mr. Bruno’s income and benefits with no contingencies except mortality
deducted.

[138]     His
position is that, but for the accident, he would have earned at least $1
million but more likely in the range of $1.3 million, as provided in the
evidence of Mr. Benning. He submits that he is not now and never will be
competitively employable. He notes further that if he was able to start work
part time in the future, at $15 per hour he would earn only between $7,500 and $9,000
per year, amounting to a present value of approximately $120,000, which would
have a minimal impact on his claim.

[139]     The expert
opinion and submissions at trial were based upon the then prevailing discount
rates pursuant to s. 56(2)(a) of 2.5% with respect to loss of future
earnings and 3.5% pursuant to s. 56(2)(b) with respect to all other future
damages.

[140]     On April
30, 2014 after closing submissions, the Chief Justice announced changes in the
discount rates pursuant to s. 56(2) of the Law and Equity Act,
R.S.B.C. 1996, c. 253. The new rates prescribed were 1.5% for s. 56(2)(a)
and 2.0% for s. 56(2)(b). The parties were given leave to adduce further
evidence and provide submissions to address the implications of the changes in
the discount rates.

[141]     Mr. Bruno
submitted, based upon the new calculations provided by Mr. Benning that the
loss reflected at a 3% nominal income growth was $1,177,000 and based upon a 5%
nominal income growth $1,235,000.

[142]     The
defendants filed a report from Robert Carson, which in part took issue with the
implications of the approach taken by Mr. Benning in his original report. To
that extent the report went beyond the leave that was granted to the parties.
The time to have taken issue with the original report has long past.

[143]     The
essence of the defendants’ objection is that the discount rate reflects a
presumption concerning the future rate of inflation. This prediction is that
inflation will be lower. Counsel submits that it must be presumed that the 3%
allocated to Mr. Cox to distribute to his staff as bonuses was intended to
generally track inflation. Accordingly it is an error, resulting in double
compensation to apply the new lower discount rate using the same 3% and 5%
figures. In short, the future lower rate of inflation would have an inevitable
effect on future increases of income for Mr. Bruno.

[144]     The
difficulty with this submission is that there is no evidence that the 3%
allocated to Mr. Cox to distribute to his staff as bonuses was intended to
correspond with the rate of inflation. There is also no evidence that the
management at Family had or would have the same prediction of future inflation
as is embodied in the new discount rate. Further, it was Mr. Cox’s evidence
that had Mr. Bruno remained, his expectation is that he would have awarded Mr.
Bruno 3% increases, more in some years.

[145]     An award
for future income loss is intended to be an assessment, not a calculation. I am
satisfied that the revised figures reflecting the impact of the new discount
rates as submitted by Mr. Bruno are an appropriate basis for the assessment.

[146]     Turning
then to the substance of an award under this head, the defendants do not
dispute that there should be an award pursuant to this head of damage. Counsel
submits that the contingencies which must be considered including in this case,
are the possibility of substantial improvement, the converse possibility that Mr.
Bruno would have suffered the same loss or similar in the absence of the
accident, and the prospect that he will be able to return to some gainful
employment in the future. In addition, counsel submits that because Mr. Bruno
has no dependents, he would likely retire before age 65.

[147]     I am
satisfied that the calculation based upon a 3% nominal wage growth is the
appropriate base that reflected Mr. Bruno’s performance and the behaviour of
his employer. The economic multipliers used by Mr. Benning include a 30%
negative contingency to account for factors including non-participation in the
labour force, unemployment, part-time work, and premature death. In my view, an
additional reduction is warranted to address the possibility that Mr. Bruno
will return to the labour force, to at least a limited extent, together with
the remote possibility that he would have been forced to leave the workforce in
any event.

[148]     I have
concluded that the appropriate award for loss of future earnings is $900,000.

Loss of Homemaking Capacity

[149]     Mr. Bruno
seeks an award of $15,000 for past loss of homemaking capacity and $43,400 for
the future loss of homemaking capacity. This was based on a calculation by Ana
Flores, an occupational therapist, who estimated the annual cost of replacement
homemaking at about $5,400 per year excluding painting and gardening. The
present value of that amount, based upon the new discount rates, is $125,863.20,
a calculation not disputed by the defendants, which for the purpose of the
claim for the future was reduced by two-thirds.

[150]     The
position of the defence is that while Mr. Bruno has been unable to perform heavier
household tasks since the accident, he shares the housekeeping duties with his
housemate Mr. Campos. Therefore, counsel submits that there should be no award
under this head of damages.

[151]     This is a
case in which there has been no pecuniary loss for housekeeping services. Mr.
Bruno and Mr. Campos re-organized the work with Mr. Campos taking on more
responsibility and doing all of the heavy work. However, in O’Connell v.
Yung, 2012 BCCA 57, the court clarified that this was an award for loss of
capacity intended to compensate the plaintiff for the loss of his ability to
perform household tasks that, but for the accident, would have been of value to
him as well as others in the domestic unit.

[152]     I am
satisfied that Mr. Bruno has suffered a loss in his ability to perform
household tasks for which he should be compensated. He is no longer able to do
any of the heavier household tasks and is unable to garden, which was an
activity he was looking forward to with the purchase of the home. However, as
the majority emphasized in Kroeker v. Jansen (1995), 4 B.C.L.R. (3d) 178
at para. 29, [1995] 6 W.W.R. 5 (C.A.), leave to appeal ref’d [1995]
S.C.C.A. No. 263, a cautionary approach is to be taken with respect to
such awards. In all the circumstances, I award $5,000 for past loss of
homemaking capacity and $15,000 for future loss, for a total award of $20,000 under
this head of damage.

Special Damages

[153]     I award
$4,034.46 as claimed for special damages.

Cost of Future Care

[154]     Mr. Bruno
seeks an award of $80,574 for the cost of future care using the new discount
rate. The defendants did not take issue with the calculations setting out the
implications of the new discount rate for the items claimed under this head of
damages. The claim was based upon the following:

·      
Medication – Mr. Bruno’s current regime of Gabapentin,
Clonazepam and Venlafaxine costs $888.92 per year which, using the care
multiplier from Mr. Benning’s report, amounts to $20,719. This is somewhat
conservative, as Dr. Anderson has recommended the addition of nortriptyline
which would increase the cost of medication.

·      
Pain clinic – Dr. Anderson has recommended that Mr. Bruno
attend a pain clinic. The cost of this is set out in Ms. Flores’ report and Mr.
Benning’s report as being $2,500 for assessment and $10,855 for the program
itself, for a total of $13,355.

·      
Occupational therapy – This recommendation is supported by
Dr. Anderson and costed by Mr. Benning at $2,500.

·      
Psychotherapy – Dr. Anderson recommended that Mr. Bruno
receive 10 to 12 sessions of psychotherapy annually on an indefinite basis for
treatment of his anxiety and mood disorders. Dr. DeForge recommended ongoing
CBT. Ms. Flores provides a cost per session of $160, amounting to $1,600 to
$1,920 per year. Applying the care multiplier results in a range of $37,293 to
$44,751. Mr. Bruno seeks an award at the mid-point of $41,000.

·      
Active Rehabilitation – Drs. Anderson and DeForge both
recommended a supervised exercise program. Mr. Bruno seeks a lump sum payment
of $3,000.

[155]     The
plaintiff is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore him to his pre-accident condition, insofar
as that is 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, [1985] B.C.J. No. 2762
(S.C.) [Milina]; Williams v. Low, 2000 BCSC 345; and Spehar v.
Beazley, 2002 BCSC 1104, aff’d 2004 BCCA 290.

[156]     The test
for determining the appropriate award under the head of cost of future care is
an objective one based on the medical evidence. For an award of future care to
be warranted, there must be a medical justification for the costs
claimed and the claims must be reasonable: Milina at 84.

[157]     I find
that these claims have a medical justification and are reasonable in the
circumstances. I award $80,574 for the cost of future care.

Summary

[158]     In
conclusion, I hereby award the plaintiff the following amounts:

[159]     Absent any
circumstances of which I am unaware, the plaintiff is entitled to the costs of
this action.

“Ross J.”