IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141016

Docket: M112552

Registry:
Vancouver

Between:

Glen
Neal Davidge

Plaintiff

And

Brian
Douglas Fairholm

Defendant

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Madam Justice S. Griffin

Reasons for Judgment

Introduction

[1]            
Glen Davidge was in his truck stopped at a light when his vehicle was
struck from behind by a van driven by the defendant, Brian Fairholm.  The
accident occurred on September 15, 2009.  The third party, the Insurance
Corporation of British Columbia (“ICBC”), admits that the defendant was
negligent.

[2]            
It is conceded that Mr. Davidge suffered an injury to his neck
caused by the accident.  However, Mr. Davidge also claims that the
accident injured his lower back, and that the symptoms of low back pain have
gotten worse over time.  Today the low back symptoms are more severe than the
neck pain although his neck continues to bother him.

[3]            
These symptoms have continued sufficiently in time that it is likely
that Mr. Davidge will continue to suffer from some neck pain and continued
low back pain throughout his life, with the back pain being more severe than
the neck pain.

[4]            
At the time of the accident Mr. Davidge was a young man working in
the oil fields of northern Alberta, about to return to work after the end of a
break in his two-week shifts.  Mr. Davidge felt sore and tense but did
return to work.  The work was of a very intense physical nature.

[5]            
The first time that Mr. Davidge’s family physician, Dr. Rebeyka,
recorded in his clinical records that Mr. Davidge had low back symptoms
was on April 9, 2010.  Before that, Dr. Rebeyka’s clinical records noted
complaints and symptoms related to neck and upper back pain.

[6]            
In between the date of the accident in September 2009, and April 9 2010,
when Dr. Rebeyka’s notes recorded a low back problem, Mr. Davidge
returned to work in the oil fields twice.  After his first return to the oil
fields, he attended a Work Hardening Program (the “WHP”) in which he performed
exercises and had physiotherapy sessions directed at his rehabilitation.

[7]            
ICBC argues that the fact that Mr. Davidge’s family physician did
not record any low back problem until April 9, 2010 is inconsistent with the
accident having caused any low back injury.  ICBC does not appear to question
that Mr. Davidge does currently suffer from low back pain.  It says that it
is more likely or at least equally likely, that Mr. Davidge injured
himself at work.

Issues

[8]            
The key issue in this trial is whether or not the accident caused Mr. Davidge
an injury to his low back.  Central to this issue is the credibility of Mr. Davidge
and the reliability of his evidence.

[9]            
The plaintiff’s several medical experts, Drs. Rebeyka, Adrian, and
Esmail, attribute Mr. Davidge’s low back complaints to the accident.  One
medical expert, Dr. Sovio, called by ICBC, does not.

[10]        
The difference between these medical experts largely turns on one
thing:  whether or not they accept that Mr. Davidge had low back symptoms
soon after the accident.

[11]        
Mr. Davidge says that he had low back symptoms after the accident.  The
experts that attribute his ongoing low back complaints to the accident accept
this history of the patient.

[12]        
ICBC’s expert, Dr. Sovio, on the other hand, does not accept this
and instead assumes that Mr. Davidge’s first low back symptoms occurred
close to when first recorded in Dr. Rebeyka’s notes, on April 9, 2010.

[13]        
The plaintiff’s medical experts were credible and reliable.  If I find
that their assumption is correct and that Mr. Davidge did have low back
symptoms soon after the accident, the plaintiff will have proven that the
accident caused his low back injuries, and not just his neck injuries.

[14]        
If the plaintiff proves that the accident caused his low back injuries,
he must then prove that these injuries have caused him damages.

[15]        
ICBC accepts that the plaintiff will be entitled to some non-pecuniary
damages for loss of enjoyment of life and to a small award for past wage loss
during the time that the plaintiff was attending the WHP in December 2009 and
January 2010.  However, ICBC argues that the plaintiff has not proven a loss of
future earning capacity because he has a good, secure job at which he has
proven himself capable for the last three years, albeit in a different field of
industry and not involving the same heavy work as in the oil fields.  Also,
ICBC argues that the plaintiff has not proven any claim for cost of future
care.

[16]        
I will address the issues in the following order:

a)   
causation of injury;

b)   
loss of future earning capacity;

c)    
past loss of earning capacity;

d)   
cost of future care;

e)   
special damages; and

f)      non-pecuniary
damages.

A.             
Causation of Injury

Causation Legal Test

[17]        
The question that must be posed by this Court is but for the accident,
would the plaintiff have suffered the injury of which he complains.  This must
be proven by the plaintiff on a balance of probabilities.  It must be more
likely than not that but for the accident the plaintiff would not have the
medical condition of which he now complains.

[18]        
The principles are fully explained by the Supreme Court of Canada in Clements v. Clements, 2012 SCC 32 at
para. 8  and also addressed by the British Columbia Court of Appeal
in Farrant v. Laktin, 2011 BCCA 336 at paras. 8-11.

[19]        
 The “but for” test is easy to state but not always easy to apply, given
the complexities of medical conditions and the limitations of the current state
of medical science and medical instruments.  This is especially so in relation
to conditions involving chronic pain.  Pain cannot be measured or seen on an
x-ray, CT scan, or MRI scan.  The causes of pain are not easily determined.  Individual
reactions to pain vary from person to person.  This is why the courts stress
using “common sense” which is perhaps another way for saying the evidence
should be approached with an open mind, probing whether or not the contrasting
positions of the parties “make sense” in the context of all the evidence.

[20]        
Where pain is the lingering complaint it is therefore important to
understand that just because a plaintiff cannot show through a medical instrument
that he or she has pain does not mean that the pain does not exist.  Likewise, it
is important to appreciate that just because a plaintiff says he or she has pain
does not mean that this evidence should be simply accepted without regard to
its reliability or credibility.

The Evidence Relating to Causation

[21]        
I turn now to the evidence on the key question:  did the plaintiff have
lower back issues soon after the accident or not until after his second return
to work and closer in time to Dr. Rebeyka’s note of April 9, 2010?

The Plaintiff’s Evidence

[22]        
In the evening of September 15, 2009, the plaintiff was driving his
father’s pick-up truck from the plaintiff’s parents’ home in Surrey on the way
to a ferry terminal to meet a co-worker before they were to drive to Alberta to
return to their jobs on an oil rig.  They had been off work since sometime in
March, a typical shutdown period.

[23]        
The truck the plaintiff was driving had a lift and so was higher off the
ground than a regular pick-up truck.

[24]        
 While the plaintiff was stopped at a red light, the defendant drove his
mini-van vehicle into the rear of the plaintiff’s vehicle.

[25]        
The plaintiff’s evidence at trial was that he does not remember the
impact of the accident, just the sound of crunching metal.  He called 911 and got
out of his truck to check that the other driver was okay, which he was.

[26]        
The hood of the van driven by the defendant hit the rear of the plaintiff’s
vehicle and went under it somewhat. The two vehicles had to be pried apart by
the plaintiff trying to drive his away while others were bouncing or pushing
the other vehicle.

[27]        
The plaintiff was able to drive away from the accident.

[28]        
The plaintiff did not recall his exact feelings immediately after the
accident, but said he was feeling tenderness, tense and sore. On his parent’s
advice, he went to a walk-in clinic.  The walk-in clinic sent him for x-rays.

[29]        
No one was called as a witness from the walk-in clinic.  The walk-in
clinic clinical notes put to some of the other witnesses were brief, with
“stiff neck/back” complaint noted and symptoms described involving the neck and
upper back.

[30]        
After visiting the walk-in clinic, he and his co-worker drove an approximately
nine hours to Alberta.  By the time they started to drive, he was feeling sore,
tight and tense in his neck and back area.

[31]        
The plaintiff was scheduled to work two weeks on the oil rig, which he
did.  His work was very physical and involved heavy lifting and pushing.  He
felt very sore and was consuming a lot of over the counter muscle relaxants
like Advil and Tylenol.  He was in a fair bit of pain and had trouble keeping
up to the tasks in a timely way.

[32]        
The plaintiff had started working on the oil rigs in January 2008, and
had not previously had a problem with the physical demands of the job.

[33]        
After completing his two-week shift, the plaintiff returned to British
Columbia and made his first post-accident visit to his family doctor, Dr. Rebeyka,
in early October 2009.

[34]        
Dr. Rebeyka was concerned that the x-ray ordered by the walk-in
clinic showed a possible “abnormality” of the neck which if not treated could
be fatal, and so sent the plaintiff for an urgent CT scan.  When the CT scan
came back, Dr. Rebeyka was relieved to note that it dispelled the serious concerns
about his neck that had been raised by the x-ray.

[35]        
The plaintiff says that the area bothering him the most at the time was
his neck.  Dr. Rebeyka followed up with him over several visits, with the
focus always on the plaintiff’s neck.  Dr. Rebeyka directed the plaintiff
to physiotherapy for his neck, and the plaintiff attended several physiotherapy
sessions in October and November 2009.

[36]        
The plaintiff said that he was referred to physiotherapy for his neck
because that was what was causing him the most pain and discomfort.  While his
back was tight, tense and sore, the reason he was sent for treatment was his
neck and that was the focus of the treatment.

[37]        
The physiotherapist recommended that the plaintiff attend a WHP, and Dr. Rebeyka
went along with this recommendation.

[38]        
In December 2009 and January 2010, the plaintiff attended the WHP.  The
focus of the program was the plaintiff’s neck.  He was given exercises to do
and also received physiotherapy treatment.  By January, his neck problem was
greatly improving.

[39]        
The plaintiff testified that he began to experience more pain in his
lower back around the same time during the WHP in January 2010.  The pain he
was experiencing in his low back was in the right of his low back, around just
above the belt line, and is the same pain he experiences now, which is a
stabbing pain.  He says that he spoke to his physiotherapist about the low back
pain, and was told that this was likely due to him using muscles he had not
used in a long time and that it would work itself out.  The plaintiff said he accepted
this explanation.

[40]        
The plaintiff’s evidence is that this increased pain in his right lower
back started during the WHP, but before that his entire back was hurting, just
not as much as the neck.  Before the WHP, he had a stiffness and tightness in
the entire back, from his neck down to the belt line.

[41]        
The WHP ended at the end of January 2010, and the plaintiff was
discharged as fit to return to work by February 2010, and the plaintiff did so. 
The plaintiff testified that he was happy to be returning to work.

[42]        
The plaintiff said that once he started work on the oil rig again in
February 2010, he had a lot of pain in his neck and back when doing his job. 
He described the pain as excruciating.  The stabbing lower back pain that he
had felt during the WHP became worse.  He tried to manage it with Advil, Tylenol
and Midol, taking these pills almost hourly.  He did not discuss his pain with
anybody as that was contrary to the work culture.  For the same reason, and his
own ego around the other men, he also did not request light duties.  He found
that he was less able to perform the job and was getting a reputation as a
slacker.

[43]        
The plaintiff continued to work on the oil rig for what I understood was
a regular shift, until March 2010.

[44]        
On April 9, 2010, the plaintiff went to see Dr. Rebeyka.  He
reported to him that he felt worse than he had the last time he had seen him,
and had pain in his neck and low back. The doctor noted tenderness in lower
lumbar region on the plaintiff’s right side.  This was the first time since the
accident that Dr. Rebeyka’s notes recorded a low back complaint and low
back examination.

[45]        
The plaintiff then went on a holiday to Thailand for a few weeks with
his then girlfriend.  He returned to work in the oil rigs in late May or early
June, 2010, lasting until early August 2010.  It was not clear whether or not
these were two-week shifts with two-week breaks, but the suggestion was that he
worked only half a shift in July because he attended a wedding.  At work the
plaintiff continued to feel the same pain and to have the same difficulties he
had experienced before but his neck discomfort was not as prominent as his low
back pain.  He continued to consume many over-the-counter muscle relaxants but
felt that he could not escape the excruciating pain.

[46]        
The plaintiff stopped working at the oil rig in August 2010 and did not
return to that job.

[47]        
The plaintiff was experiencing significant pain, affecting him in all
ways from putting on his socks to putting away groceries.  Anything requiring
bending over caused him a lot of low back pain.  He returned to physiotherapy
and started to go to acupuncture treatment in late 2010 and in 2011.  He also
started doing yoga.  He found all of these therapies helpful on a very
temporary basis, offering some limited relief.

[48]        
The plaintiff enrolled in a course at the British Columbia Institute of
Technology (the “BCIT”) to work in the railway industry and it commenced in
February 2011.  He found that sitting for prolonged periods was painful and so he
would shift around and try to sit so that he was not putting weight on his
right side.  However, it was much less painful than working on the oil rigs.

[49]        
When the plaintiff testified, I observed his physical behaviour as
consistent with his reported pain localized in his right lower back.  When
sitting he would try to lean with his weight on his left side, to take weight
off of his right side, and he would use his arms on the side of the witness box
to carry some of his weight.  He would also stand up from time to time as well
and would lean his weight more on his left leg.  His body movements appeared
authentic and not staged or self-conscious.

[50]        
When the plaintiff’s course finished in May or June 2011 a railway
company hired him quickly.  He then got what he perceived as a better offer
from another railway company, and so left the first job for the second about
one month after his schooling ended, by July 2011.

[51]        
In between school and being hired, he worked for a cousin’s excavation
and mowing business, driving a tractor anywhere from a few hours per week to a
one or two week period when he worked eight hours per day.

[52]        
When he applied for work in the railway industry, the plaintiff was
required to fill out a medical questionnaire.  The questionnaire asked him a
number of questions about whether he had any difficulty or was unable to
perform certain activities, such as lifting up to 80 lbs, kneeling, climbing,
and he answered “no”.  In cross-examination, he admitted that he would have
pain doing some of those activities, but he said that he felt that he could
still do them and his pain would not affect his ability to do his job.

[53]        
The questionnaire also asked him if he had ever had any functional
limitations or restrictions due to a workplace injury or disease, to which he
answered no.  Technically that answer may have been correct insofar as the car
accident was concerned, because it was not a workplace injury or disease but it
overlooked a workplace injury, sometime earlier, in which he severed tendons in
his finger.  However, the plaintiff had disclosed that prior workplace injury
in the question above on the form.

[54]        
There was an inconsistency in the way the plaintiff filled out the
medical questionnaire.  Under current health problems he answered yes to the
question of whether or not he had consulted a physician or received medical
care for injuries to his muscles, bones, joints or back problems, but answered
no under the section “other health problems” to the question of whether he had
ever had problems with muscles in his arms, legs or spine including back
problems.  The plaintiff admitted that the latter answer was incorrect.

[55]        
Since he has been working in the railway industry, the plaintiff has not
missed work due to his injuries or been unable to perform his job to
appropriate standards.

[56]        
However, the plaintiff finds many activities during his work aggravate
his low back pain, including sitting on seats which vibrate and jar with the
movement of the trains; riding on the outside of the trains by hanging on to a
ladder; cranking hand brakes for railway cars; walking on the large gravel
which forms rail beds and rail yards; and working long shifts without a long
sleep in between.

[57]        
The plaintiff experiences low back pain on a daily basis and it affects
every aspect of his life.

[58]        
His neck and low back pain interferes with his sleep and so he will
often take a prescribed sleeping aid when he is not working which helps lessen
the pain but not obliterate it.  It also interferes with his mood and makes him
irritable and short-tempered.

[59]        
ICBC points to the following as alleged inconsistencies with the
plaintiff’s evidence that he had problems with his entire back after the accident:

a)             
the lack of any record in the physiotherapy notes prior to or during the
WHP that indicated soreness in the lumbar region;

b)             
the lack of any record of a low back complaint in Dr. Rebeyka’s
notes until April 9, 2010; and,

c)              
the lack of evidence from friends or family members that the plaintiff
reported back pain immediately after the accident.

[60]        
The plaintiff explained that his focus at the time of physiotherapy and
the WHP was his neck complaint, which was bothering him the most.  While he had
a tense and sore back before the WHP, it was not his focus.

[61]        
 Likewise, the plaintiff was uncertain as to whether he had ever raised
his general back tenseness and soreness with Dr. Rebeyka prior to the
April 9, 2010 visit.

[62]        
At the time, the plaintiff was in his early twenties.  He had been
physically active all of his life, and as he said, he was familiar with having
sore muscles.  The plaintiff showed an eagerness to get back to work and to get
better.  It is credible that in his own mind he may have considered his full
back soreness and stiffness to be minor and not worth raising with his doctor
who was concentrating on his neck which was bothering the plaintiff the most,
and likewise to the physiotherapist or in the WHP until it got worse.

[63]        
The plaintiff’s evidence that during the WHP he felt the low back pain
get worse was credible.  He described the feeling of the pain and its location
in his back quite specifically.  He explained that he brought up the fact he
was having back pain to the physiotherapist and the physiotherapist’s advice
that this was likely just muscular, due to the plaintiff performing exercises
to get fit and working muscles that had not been used for a while.  It is
credible that if the physiotherapist told him it would go away, the plaintiff
believed it, as he was eager to return to work, his neck was getting better,
and he did not want to think that he was going to have a serious back problem.

[64]        
The fact that the physiotherapist did not make a note of this advice in
his records does not mean the plaintiff’s evidence cannot be believed.  If the
physiotherapist truly thought this was minor muscle soreness that would go
away, which is what the plaintiff says he was told, it is entirely possible
that the physiotherapist did not think it worth noting in his clinical records.

[65]        
No party called the physiotherapist as a witness and no party urged the Court
to draw an adverse inference from the fact he did not testify.

[66]        
I will come back to Dr. Rebeyka’s records and evidence.

[67]        
Regarding the ICBC suggestion that if the plaintiff had experienced back
pain after the accident he would have a friend or family member who could testify
in this regard, this suggestion assumes that the plaintiff would have discussed
with family or friends the details of where in his body he was experiencing
pain after the accident.  ICBC did not put this suggestion to the plaintiff in
cross-examination, and it is not an assumption that I can infer.  The plaintiff
returned to work and testified that it was part of the culture that the men
working on the oil rig would not complain because if they did would be treated
in a derogatory way and seen as not pulling their weight.

[68]        
The plaintiff’s behaviour was that of someone who stoically carries on
after an accident and does not spend a lot of time complaining about how he
feels.  That a long list of family and friends did not testify that he told
them precise details of where his pains were in his body does not mean he was
not suffering from pain.

[69]        
The plaintiff’s father testified that what he has observed about the
plaintiff since the accident is that the plaintiff has complained about pains
in his neck and back.  There was no cross-examination of the plaintiff’s father
and so this evidence was unchallenged.

[70]        
 ICBC also challenged the plaintiff’s credibility generally.  It submits
that the plaintiff was less than forthright when applying for work in the
railway industry, by not disclosing any low back problem, and since this was to
obtain a job and the employment income this brings, it shows a willingness to
be less than truthful when it suits the plaintiff’s financial interests.

[71]        
Also, ICBC points to the fact that when the plaintiff testified and he
was asked about how his back pain affects his life, he recounted his fiancée’s
daughter asking him for a piggyback ride and him turning her down because it
hurts. However, his fiancée testified that he did sometimes give her daughter
piggyback rides.  I hardly think this a material contradiction.  The plaintiff
presumably does not complain to his fiancée every time he feels badly about not
being able to do some activities with her daughter.  He was giving an example
in his evidence and did not state that he had never given the daughter a
piggyback ride.  He went on to say he tries to give piggyback rides for a short
time but it hurts.

[72]        
When the plaintiff testified he explained that he considers his fiancée’s
little girl to be his own daughter.  The one point in his evidence where he
became emotional and choked up was when he described being unable to do some of
the physical activities with her that she wants to do and when he described an
incident when he was unduly irritable towards her.  Following the latter
incident, he went to a medical doctor and is now on some medication for his
mood.

[73]        
I did not find that the plaintiff was attempting to give misleading
evidence to expand the size of his claim in this lawsuit.  He did not appear to
me to exaggerate.  There were many opportunities in his evidence where he might
have exaggerated to give self-serving evidence but he did not.  For example, he
said he did not remember the impact instead of testifying that it was a jolt or
a shock or any other language commonly used to describe a rear-end collision; and
he did not attribute the failure of his relationship with his girlfriend to his
injuries after the accident.

[74]        
He also did not suggest injuries to other parts of his body such as his
shoulders.

[75]        
The plaintiff’s general conduct post-accident was not consistent with
someone trying to maximize his claim in this lawsuit, but rather, was
consistent with someone who would rather work than complain of an injury:  he
returned to work immediately; when that was difficult, he took a program to try
to rehabilitate; he then returned to work immediately again; when that did not
turn out well, he sought out another career and has persisted in it despite the
fact that he has daily pain.  This in my view is not the behaviour of someone
who wants to exaggerate the effect the accident has had on his life.

[76]        
The plaintiff gave his evidence in a way that appeared natural and not
coached.  He gave his evidence as the second witness in the trial after his
father’s testimony.  He had not read the medical reports.  When his evidence
was interrupted to accommodate the testimony of a medical witness, the
plaintiff stayed out of the courtroom.  This can be contrasted to a situation
where a plaintiff listens to all of the other evidence and studies the medical
reports before testifying.

[77]        
When the plaintiff testified, he appeared quite open, sincere and
guileless.  I found his evidence at trial credible and reliable.

[78]        
The key problem with ICBC’s attack on the plaintiff’s evidence is that
it equates the lack of a clinical record with the lack of a back problem.  This
equation is only appropriate if the patient had been asked if he had a low back
problem, and he denied it, and if his low back had been examined and no problem
found.  This leads me to Dr. Rebeyka’s evidence.

Dr. Rebeyka

[79]        
Dr. Walter Rebeyka’s evidence revealed that he is not sure he ever
asked the patient if he had problems in his low back, nor did he examine the
plaintiff’s low back prior to April 9, 2010.  There is nothing in his clinical
records to indicate he did either before that date.

[80]        
The explanation for this is quite simple:  when Dr. Rebeyka first
saw the plaintiff post-accident, it was October 8, 2009.  The plaintiff had
gone to a walk-in clinic after the accident and then back to work in the
oilfields, and when he came back from that work period, he went to see Dr. Rebeyka.

[81]        
At that visit, Dr. Rebeyka had in his files the report of the x-ray,
which had been ordered by the walk-in clinic.  The report was alarming to Dr. Rebeyka
as it suggested a potential life-threatening injury to the plaintiff’s neck,
that he had crushed his first or second vertebrae. Dr. Rebeyka was
terrified by the seriousness of this and so ordered an urgent CT scan.  He said
that he had shared that concern with the patient.

[82]        
It is my understanding therefore that Dr. Rebeyka focused on the
plaintiff’s neck at that first visit.

[83]        
The CT scan was done and a life-threatening injury to the neck was ruled
out.  Dr. Rebeyka called the plaintiff back in to let him know this.

[84]        
 Dr. Rebeyka’s method with his patients on follow-up visits is to
start with three questions: better, worse or the same in relation to the prior complaint. 
His clinical records show that after the first post-accident visit where the
focus was on the neck, he then followed up with the patient regarding the same three
questions during subsequent visits, asking whether the neck was better, worse
or the same.

[85]        
 The plaintiff apparently went along with this method.  Dr. Rebeyka
had been his family doctor since birth.  It was Dr. Rebeyka’s experience that
the plaintiff would be “astronomically respectful” of the doctor’s advice and
would follow it.

[86]        
Focusing on the plaintiff’s neck problems, Dr. Rebeyka referred him
to physiotherapy for his neck.  The physiotherapist was the same one who
recommended the WHP, which was also based on the neck, and was the same one who
treated the plaintiff during the WHP.

[87]        
The plaintiff was unsure if he had ever told Dr. Rebeyka that his
low back was bothering him prior to the April 9, 2010 visit.  Dr. Rebeyka’s
evidence was that he recorded in his clinical records pain in the plaintiff’s
neck and whole back, particularly the lumbar region, or lower back.  Dr. Rebeyka’s
evidence was that this was the first occasion he did a physical examination of
the plaintiff’s low back and the first time they had discussed it.

[88]        
After the April 9, 2010 visit, Dr. Rebeyka then followed up with
the plaintiff in respect to both the neck pain and the low back pain.

[89]        
In Dr. Rebeyka’s written opinion dated April 16, 2014, the fact
that the plaintiff continues to have neck and back difficulties means that he
will like have ongoing difficulties well into the future.  Dr. Rebeyka
noted that the area of greatest concern, on an ongoing basis, is the low back. 
Dr. Rebeyka’s opinion attributed the low back problems as a consequence of
the motor vehicle accident.

[90]        
In cross-examination, Dr. Rebeyka agreed that the scans of the
plaintiff’s spine showed he had some degenerative changes; that it is
reasonable to state that this could expose him to more risk of being injured
doing heavy work; and that it could expose him to injury that might take a few weeks
or months to develop gradually, as wear and tear.  He also agreed that it was
not unreasonable that doing the kind of work the plaintiff did, that something
could have happened at work and he might not know it.  However, Dr. Rebeyka
also pointed out that the WHP is not the same as actually going to work and the
true test is being able to perform at work.  He pointed out that it is not
uncommon for upper back complaints to move down to the low back.

[91]        
Pressed in cross-examination about the gap in time from the date of the
accident in September 2009, until when he first recorded the low back pain in
April 2010, Dr. Rebeyka testified that he wished he had asked the
plaintiff “has this been bugging you all along, or is this something new or out
of the blue”.  But he did not ask those questions because Dr. Rebeyka’s
focus had been on his neck up until then.

[92]        
The relevance of those questions, that Dr. Rebeyka wished he had
asked the plaintiff, is that had there been a low back problem earlier, it
makes it that much more likely attributable to the motor vehicle accident.

[93]        
The questions Dr. Rebeyka did not ask the plaintiff were, of
course, asked of the plaintiff in this trial.  I have accepted the plaintiff’s
evidence that he did have overall soreness and tightness in his overall back
after the accident but that his neck was worse; that as his neck was treated
and got better he had increased pain in the low back area during the WHP but
that he hoped it would go away based on the physiotherapist’s advice.

[94]        
Dr. Rebeyka agreed in cross-examination that the plaintiff’s work
was strenuous enough to have caused the problems if there was no accident and
the plaintiff reported having the same problems.  However, he pointed out that
the plaintiff had performed the work prior to the accident without problem,
which should have made him stronger at work; and he had gone through a WHP,
which also should have made him stronger and so work alone should not have
caused the complaints he had.

[95]        
In Dr. Rebeyka’s report, he provided the opinion that the plaintiff
had not embellished or exaggerated his complaints and had presented himself in
a straightforward and upright manner.  Dr. Rebeyka explained in
cross-examination that he sees it as part of the doctor’s responsibility to
report when the doctor thinks the patient has tried to fool them or lead them
astray, and equally important when providing care over a long period of time to
report whether the patient presented in a straightforward manner.

[96]        
It is common in these kinds of cases to hear evidence as to whether a
plaintiff appears to be engaging in exaggerated pain behaviour, does not put
full effort into medical tests of ability so as to possibly amplify perceived
limitations, or has complaints that do not seem to medically relate to the
alleged injuries.  It is also necessary to know the facts assumed by the expert
witness.  I took the doctor’s remarks as directed to these matters:  that he
did not witness anything inconsistent in the patient’s behaviour or reports of
complaints from a medical perspective; and that he was basing his opinion on
the assumption that what the plaintiff reported to him was true.  I do not find
that the doctor was attempting to usurp this Court’s task in assessing the
credibility or reliability of the plaintiff and gave these comments no weight
on that issue.

Dr. Esmail

[97]        
Dr. Salim Esmail, an orthopaedic surgeon who performs orthopaedic
assessments, evaluated the plaintiff on March 24, 2014 and his report, of the
same date, was tendered by the plaintiff as opinion evidence at trial.

[98]        
It was his opinion that the plaintiff suffered injuries to his neck and
lower back as a result of the accident, giving him chronic pain, which is
likely to continue into the future.

[99]        
Dr. Esmail could not recall when the plaintiff told him the back
pain first started.  He was aware it was not recorded in the general
physician’s records until April 2010 but he was not troubled by this.

[100]     Dr. Esmail
explained why it is that the back complaint could surface or become greater
several months after the accident.  He explained that an initial injury can be
occult meaning some damage to the soft tissue or joints which at the beginning are
not great and people don’t feel much pain if they do not stress the joint, but
as time goes by the damage becomes worse and it becomes symptomatic.

[101]     Dr. Esmail
further explained that facet joints can be injured at the same time as a soft
tissue injury but the cartilage damage is not detectable on a scan.  At the
beginning the facet cartilage might be bruised and not create a problem but
then it starts to deteriorate with time and after a few months starts to
produce pain or other symptoms.

[102]     Dr. Esmail
also explained that the degeneration in the plaintiff’s spine revealed by the
MRI was a common finding that exists in people who do not have back pain as
well.  Even if the accident had not occurred, but if the patient had reported
these back symptoms after his work history, Dr. Esmail would not attribute
the complaints to his degenerative condition.

[103]     Dr. Esmail
was vigorously cross-examined.  He agreed it was a significant omission in his
report not to mention that the first medical record of a low back complaint was
approximately six months after the accident.  He did point out that in his
report he mentioned that the initially the plaintiff had significant neck pain
and later the lower back pain became worse.

[104]     Dr. Esmail
was not willing to speculate why there was no documentation of a low back
complaint earlier.  He did say that in his experience sometimes physicians
limit their assessment to one or two things and focus on one or two body parts.

[105]     Dr. Esmail
went back and forth on agreeing and disagreeing on a hypothetical repeatedly
put to him in cross-examination, that it is just as likely that the plaintiff
could have had an occult injury at work and that could have produced the lower
back pain rather than the accident.  Dr. Esmail felt that if something had
happened at work that the plaintiff would have put in a WCB claim or there
would be some medical documentation of that.

[106]     Dr. Esmail
explained that the reason he felt the accident was the most likely cause of the
back complaint was that rear-end collisions are known to cause neck and back
pain; and there was no previous history of back problems despite the plaintiff
doing very heavy work before the accident.

Dr. Mark Adrian

[107]     Dr. Adrian
is a specialist in Physical Medicine and Rehabilitation, also known as a
physiatrist.  He conducted an assessment of the plaintiff on March 24, 2014 and
produced a report, of the same date, which the plaintiff tendered in evidence.

[108]     In his
opinion, the symptoms in the plaintiff’s neck and lower back were caused by the
motor vehicle accident, resulting in a diagnosis of mechanical neck and lower
back pain.  Mechanical pain means that the source of the pain originates when
the damaged or injured tissues are mechanically or physically stressed such as
with activities that involve awkward neck positioning, bending, lifting and
stopping. His physical examinations of the plaintiff were consistent with the
reported symptoms and the diagnosis.

[109]     Dr. Adrian’s
opinion noted that the plaintiff’s most noticeable pain following the accident
was in his neck region and the injuries to the lower back were less severe. 
The injuries to the lower back that were caused by the accident were likely
aggravated during his rehabilitation treatments in January/February 2010 and
with the physical aspects of his work.

[110]     Dr. Adrian
noted that the plaintiff did not have neck or lower back pain and was
physically active pre-accident.  It was his opinion that it is unlikely that
the plaintiff would have spontaneously developed persistent and regularly
occurring pain involving his neck and lower back had it not been for the
accident.

[111]     Dr. Adrian
commented on the imaging studies that showed degenerative changes in the
plaintiff’s spine.  He said these types of changes occur over years and are
common in the asymptomatic adult population and do not predict the presence of
pain or the development of future problems.  He said they are part of the aging
process, much like skin that becomes wrinkled and hair that turns grey.

[112]     Dr. Adrian
said that the plaintiff was no more predisposed to degenerative changes to the
condition of his back as a result of doing heavy work.

[113]     It was Dr. Adrian’s
opinion that the prognosis for further recovery from the injuries is poor.  It
is unlikely the injuries will suffer progressive deterioration, but the
plaintiff is more vulnerable to future injury.

[114]     Dr. Adrian’s
opinion is that the plaintiff will continue to experience difficulty performing
activities that place physical forces onto the painful and injured structures
of his spinal column.  He will have difficulty with activities that involve
repetitive or awkward neck positioning; heavy or repetitive lifting; jarring
activities; repetitive or prolonged bending from the waist; and prolonged
sitting.  These limitations are unlikely to resolve, in his opinion, and are
likely permanent.

[115]     In
cross-examination, Dr. Adrian was pressed to admit that he would expect a
competent physiotherapist to document a complaint of low back pain.  Dr. Adrian
would not agree, and pointed out that it can depend on the area of focus and
treatment, the reason for the referral to the physiotherapist in the first
place.

[116]     Dr. Adrian
was asked in cross-examination to agree that if the physiotherapist at the WHP
thought that the plaintiff had a back problem that impaired his ability to
return to work, the physiotherapist would not discharge him from the WHP.  This
was a hypothetical not based on any facts in the case, because the plaintiff’s
evidence is that the physiotherapist thought his back complaint was just from
underworked muscles and would go away.  However, Dr. Adrian’s evidence in
response was credible, as he explained that a return to work program is
somewhat trial and error.  It is difficult to predict that a person will be
successful when they do return to work.  It is not unusual to refer a person
back to work even though some symptoms remain, to see if he will manage it.

[117]     This
evidence was consistent with Dr. Rebeyka’s that you do not necessarily
know if someone can handle the conditions of work post-injury, despite
rehabilitation efforts, until they try.

[118]     Dr. Adrian
was pressed in cross-examination on the absence of any clinical record in Dr. Rebeyka’s
records of a back problem until April 9, 2010.  He pointed out that he would
need to know whether or not Dr. Rebeyka palpated the plaintiff’s back and
otherwise examined him; and whether or not Dr. Rebeyka asked the plaintiff
if he had back pain and the patient denied having any low back pain.

[119]     Dr. Adrian
suggested that the absence of records of a low back complaint prior to April 9,
2010 was consistent with the injury to the neck being more of a problem and
more of a focus of the treatment.  The absence of a record does not mean that
there was no low back pain, unless the patient was asked and denied having low
back pain.

[120]     We know
from the evidence of Dr. Rebeyka that this likely did not happen, as Dr. Rebeyka’s
focus was on the patient’s neck and the urgency of a possible neck fracture;
and there is no record of Dr. Rebeyka having examined the plaintiff’s low
back or having asked him questions about his low back.

[121]     Dr. Adrian
did concede in cross-examination that if there were no low back symptoms after
the car accident until after the plaintiff’s return to work in February/March
2010, and then unique back symptoms were reported, then the return to work is
more likely related to the new complaints.

[122]     This would
require discounting the plaintiff’s evidence that he had low back symptoms
before then.

[123]     I found
each of the plaintiff’s experts to be careful and credible in their evidence.

Dr. Sovio

[124]     ICBC
called expert evidence from Dr. Olie Sovio, an orthopaedic surgeon, who at
ICBC’s request conducted an independent medical examination of the plaintiff on
June 27, 2013 and produced a report dated July 2, 2013, admitted at trial.  Dr. Sovio’s
opinion seemed to accept that the plaintiff had low back pain and neck
stiffness when he saw him.  He characterized the symptoms as subjective but did
not offer a reason to believe they were not real.  He recommended that the
plaintiff undertake a regular activity, or exercise, program.

[125]     Dr. Sovio’s
opinion did not address what caused the plaintiff’s low back pain.

[126]     However,
in cross-examination Dr. Sovio made an effort to state his opinion that
because there was no abnormality in the plaintiff’s low back for seven months,
it did not make sense to attribute that pain to the car accident.  This opinion
was offered even though it was not responsive to the question being asked, and
was not in his report.  I got the sense from his eagerness to state this that
he was being an advocate for ICBC rather than a neutral expert.

[127]     Dr. Sovio’s
off-hand opinion in relation to causation was not well explained.  From the
context of his evidence, it appeared to be based on his view that the patient
had new onset of low back pain that was not there before, seven months after
the accident (i.e. it was new when first noted in Dr. Rebeyka’s April 9,
2010 clinical record).  This was despite the plaintiff telling Dr. Sovio
that he had low back pain almost immediately after the accident. In other
words, Dr. Sovio chose to not believe the plaintiff because Dr. Sovio
did not see low back pain documented in the clinical records until later.

[128]     Just as
with the other experts, it is up to this Court to determine whether or not the
plaintiff can be believed when he says he had low back problems after the
accident that grew in intensity over time.

[129]     Dr. Sovio
did not provide any explanation as to what was the cause of the plaintiff’s low
back pain.  According to his evidence, the degenerative changes in the
plaintiff’s back should not have prevented him from returning to work in the
oil fields.  If that is so, his opinion does not support any conclusion that
the degenerative changes limited the plaintiff’s ability to do heavy work and
led to the low back pain after the return to work.

[130]     In the
last paragraph of p. 6 of Dr. Sovio’s report, he acknowledged that he
was unclear on why the plaintiff took time off work from the oil fields and
ultimately attended retraining even though after the WHP he was considered fit
to return to work.  Dr. Sovio concluded that the patient chose to retrain
rather than return to his drilling occupation, “but this does not seem to be on
a physical basis, at least, judging from the medical records”.  In stating
this, Dr. Sovio either ignored the plaintiff’s history or did not ask him
questions about his experiences after returning to work.

[131]     Dr. Sovio’s
report leads me to conclude that he did not understand the plaintiff’s medical
history leading up to his attendance at BCIT, including the fact that the
plaintiff found work in the oilfields to be too painful and thus too physically
difficult after the accident.  It seems somewhat careless for Dr. Sovio to
opine that retraining was simply a personal choice and not due to the patient
experiencing physical limitations at his work.

[132]     Dr. Sovio
performs many assessments for the Workers’ Compensation Board, and he made it
clear in his evidence that he thinks many workers injured at work simply would
prefer not to return to work even though they do not have a good reason for not
returning.  He offered this as his explanation for discounting the opinion of
the plaintiff’s general physician. Unfortunately I felt that Dr. Sovio was
unduly cynical and had a bias in this regard and so viewed the plaintiff’s own
reports of back pain as not worthy of any weight, which is not an objective
approach.

[133]     Dr. Sovio’s
approach as to the plaintiff’s ability to work also seemed very superficial. 
He did not apparently know the exact nature of the physical tasks the plaintiff
must perform in his work and other physical stresses of his job.  When
questioned what the job involved, he rather arrogantly said, “I think I know
what it’s all about”, when clearly he had little idea and had not asked the
plaintiff sufficient questions to gain an understanding.

[134]     In short,
I did not find Dr. Sovio’s evidence to be helpful on the issues of
causation or the plaintiff’s ability to work.

Analysis

[135]     There was
no significant event that occurred at Mr. Davidge’s work that anyone can
point to as causing the low back problem.  ICBC’s position suggests that this Court
should infer that the plaintiff’s work was strenuous enough that it could have
caused the low back problem, even though no event stands out as having done
so.

[136]     Dr. Rebeyka
and Dr. Esmail conceded in a hypothetical posed by ICBC’s counsel that if
there had been no accident and Mr. Davidge reported his back symptoms
after returning to work, they would conclude that the work caused his injury. 
This, with respect, is unhelpful logic.  It would apply to anyone who does
physical activity.  If Mr. Davidge had not returned to work, had no car
accident, but had been gardening in his garden and subsequently reported back
pain, and there was no other reported event, then logically the gardening might
be considered the source of his back pain in that hypothetical.

[137]     I do not
find that the hypothetical of Mr. Davidge reporting an injury after
working in a situation where he did not have a car accident of assistance in resolving
the central issue.

[138]     Dr. Adrian
conceded that if the plaintiff had been asked and examined for low back
symptoms and reported none until after his return to work in February/March
2010; it is more likely the accident did not cause those symptoms.  However,
this premise requires rejecting the plaintiff’s evidence that he did have low
back symptoms before, just that they were not as great as the neck at first.

[139]     Mr. Davidge
was a healthy young man before the accident who had no problem performing the
physical activity of his work and many recreational activities prior to the
accident.  I do not find it likely that his work injured or wore out his back
and created a problem for him.

[140]     The ICBC
challenge to the medical experts who gave the opinion that the accident caused
the low back pain turns on the premise that the plaintiff did not have any low
back symptoms or low back pain until after he returned to work in February to
March 2010.  I do not accept that premise as factually correct.

[141]     I have
found as a fact that the plaintiff had a stiff and tense entire back after the
accident, but his neck pain was bothering him the most; that Dr. Rebeyka
initially focussed on his neck pain because at the initial appointment Dr. Rebeyka
was alarmed by the x-ray that suggested a possible neck fracture; that during
the subsequent physiotherapy and WHP in January 2010 the plaintiff’s neck began
to get better but he started noticing low back pain, including the stabbing
pain of which he now complains, which he believed was temporary and would get
better; and that when he returned to work in February and March 2010, it did
not get better but was exacerbated by the actual demands of work.

[142]     The
plaintiff’s evidence is consistent with common sense:  the whole back is
connected and the fact he felt the most pain in the neck area does not mean he
felt his lower back was symptom-free; the plaintiff is stoic, and was a young
man in his twenties who wanted to get back to work and was not thinking of
having a lasting injury, and so was prone to minimize the low back pain as
something that would go away on its own; and the plaintiff’s medical experts
did not think there was anything medically irrational about the plaintiff’s
reported history and his low back symptoms getting worse over time.

[143]     Contrary
to the ICBC theory, the plaintiff’s low back pain did not suddenly appear after
his second and longer return to work on the oil rig.  The plaintiff explained
in detail the kind of back pain he felt during the WHP, and this correlates to
the kind of back pain he still feels now.  He was credible in giving this
evidence.

[144]     The plaintiff’s
more intense low back problem was occurring before his longer shift on the oil
rig.  The fact he struggled there cannot be attributed to some new problem
occurring on the oil rig and there is no evidence of any accident on the oil rig.

[145]     While
ICBC’s theory that the heavy nature of the work, and the fact that complaining
was discouraged might mean that the plaintiff hurt himself and kept it to
himself, or did not realize it, I find that this theory is not as likely as the
car accident being the source of the back problem.  The fact is that the
plaintiff was able to do the heavy work before the car accident, felt low back
tenseness after the accident, which increased in severity during the WHP, and
struggled in his return to the work on the oil rigs.

[146]     Also, I
find the fact that the plaintiff had some pre-existing degeneration in the
spine does not mean that he was prone to injury in his work.  As explained by Dr. Adrian,
this degeneration is simply a function of age.  Dr. Adrian testified that
engaging in heavy work does not increase the likelihood to injury simply
because of pre-existing degenerative changes.

Conclusion on Causation

[147]     I find
that it is more likely than not that the accident caused the plaintiff injury
to his neck and his lower back, including his current complaints of low back
pain.  But for the accident he would not have the injury to his neck and lower
back.

[148]     The
plaintiff’s evidence is credible and reliable.

[149]     The
conclusion on causation is consistent with the medical opinion evidence, which
I have preferred, namely the evidence of Drs. Rebeyka, Adrian and Esmail.  The
opinions of these physicians support the conclusion that if low back pain was
present soon after the accident, it was likely caused by the accident.  Indeed,
the third party graciously concluded in final submissions that if this Court
accepted the evidence of these physicians, the plaintiff has met the “but for”
test of causation.

B.             
Loss of Future Earning Capacity

[150]    
In Raikou v. Spencer, 2014 BCSC 1 at paras. 83-86 [Raikou]
Mr. Justice Skolrood summarized the law regarding awarding damages for
loss of earning capacity as follows:

The principles governing an assessment of damages for lost
earning capacity are well described by Mr. Justice Voith in Brewster v.
Li, 2013 BCSC 774 at para 142:

[142] The legal framework for the
assessment of the plaintiff’s future wage loss claim has been described
numerous times. The decision of Reilly v. Lynn, 2003 BCCA 49, 10
B.C.L.R. (4th) 16 contains a useful summary of some of the principles and
approaches that are to be used when assessing future earning capacity:

[100] An award for loss of earning
capacity presents particular difficulties. As Dickson J. (as he then was) said,
in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229
at 251:

We must now gaze more deeply into
the crystal ball. What sort of a career would the accident victim have had?
What were his prospects and potential prior to the accident? It is not loss of
earnings but, rather, loss of earning capacity for which compensation must be
made: The Queen v. Jennings, supra. A capital asset has been
lost: what was its value?

[101] The relevant principles may
be briefly summarized. The standard of proof in relation to future events is
simple probability, not the balance of probabilities, and hypothetical events
are to be given weight according to their relative likelihood: Athey v.
Leonati, [1996] 3 S.C.R. 458 at para. 27. A plaintiff is entitled to
compensation for real and substantial possibilities of loss, which are to be
quantified by estimating the chance of the loss occurring: Athey v. Leonati,
supra, at para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133
at 135 (C.A.). The valuation of the loss of earning capacity may involve a
comparison of what the plaintiff would probably have earned but for the
accident with what he will probably earn in his injured condition: Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the
end of the inquiry; the overall fairness and reasonableness of the award must
be considered: Rosvold v. Dunlop (2001), 84 B.C.L.R. (3d) 158, 2001 BCCA
1 at para. 11; Ryder v. Paquette, [1995] B.C.J. No. 644 (C.A.)
(Q.L.). Moreover, the task of the Court is to assess the losses, not to
calculate them mathematically: Mulholland (Guardian ad litem of) v. Riley
Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Finally, since the course of
future events is unknown, allowance must be made for the contingency that the
assumptions upon which the award is based may prove to be wrong: Milina v.
Bartsch, supra, at 79. In adjusting for contingencies, the remarks of
Dickson J. in Andrews v. Grand & Toy Alberta Ltd., supra, at 253,
are a useful guide:

First, in many respects, these contingencies implicitly are
already contained in an assessment of the projected average level of earnings
of the injured person, for one must assume that this figure is a projection
with respect to the real world of work, vicissitudes and all. Second, not all
contingencies are adverse … Finally, in modern society there are many public
and private schemes which cushion the individual against adverse contingencies.
Clearly, the percentage deduction which is proper will depend on the facts of
the individual case, particularly the nature of the plaintiff’s occupation, but
generally it will be small[.][Underlining added in Reilly v. Lynn.]
In Morgan v. Galbraith, 2013 BCCA 305, the Court of Appeal, citing its
earlier decision in Perren v. Lalari, 2010 BCCA 140, described the
approach to be taken by the trial judge when assessing a claim for loss of
future earning capacity. Madam Justice Garson stated at para. 53:

… in Perren, this Court
held that a trial judge must first address the question of whether the
plaintiff had proven a real and substantial possibility that his earning
capacity had been impaired. If the plaintiff discharges that burden of proof,
then the judge must turn to the assessment of damages. The assessment may be
based on an earnings approach … or the capital asset approach …

The earnings approach is generally appropriate where the
plaintiff has some earnings history and where the court can reasonably estimate
what his/her likely future earning capacity will be. This approach typically
involves an assessment of the plaintiff’s estimated annual income loss
multiplied by the remaining years of work and then discounted to reflect
current value, or alternatively, awarding the plaintiff’s entire annual income
for a year or two: Pallos v. Insurance Corp. of British Columbia (1995),
100 B.C.L.R. (2d) 260 (C.A.) at para. 43 [Pallos]; Gilbert v.
Bottle, 2011 BCSC 1389 at para. 233. While there is a more
mathematical component to this approach, the assessment of damages is still a
matter of judgment not mere calculation.

The capital asset approach, which is typically used in cases
in which the plaintiff has no clear earnings history, involves consideration of
a number of factors such as whether the plaintiff: i) has been rendered less capable
overall of earning income from all types of employment; ii) is less marketable
or attractive as a potential employee; iii) has lost the ability to take
advantage of all job opportunities that might otherwise have been open; and iv)
is less valuable to herself as a person capable of earning income in a
competitive labour market: Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353 (S.C.) at para. 8 [Brown]; Gilbert
v. Bottle, 2011 BCSC
1389 at para. 233.

[Emphasis in original.]

[151]     Counsel
for the plaintiff suggests a reasonable award of damages for loss of earning
capacity is $2,000,000.

[152]     Counsel
for the defendant argues that no damages in this category are appropriate.

[153]     Counsel
for the plaintiff’s approach assumes an immediate and sustaining loss.  In my
view, this approach ignores the evidence that the plaintiff is currently
capable of performing his job and it is a better career for him than what he
had pre-accident.

[154]     The evidence
is that plaintiff has been working in the railway industry for three years
before trial.  He has proven that he can do his job properly even though he has
neck and back pain.  I find that this was likely as good a career as was open
to him pre-accident.

[155]     The plaintiff
is a young man.  If all goes according to plan and his injuries do not
interfere with his ability to do his work, then he will be able to work for the
rest of his career with the same company and retire with a pension.  There is a
small chance he may be promoted to positions that require less physical
endurance than his current position, as well.

[156]     The
defendant’s approach on the other hand assumes that the plaintiff’s injuries
will have no effect on his employability in the future, and ignores the
evidence to the contrary.

[157]     As the plaintiff
described it, he was so happy with his current line of work when he first
started that at first he did not think much about the pain.  As time has gone
on, he notices it more.  The issue will be whether he can sustain the necessary
level of effort to overcome the pain until retirement.

[158]     It is
clear that the plaintiff’s employment takes a toll on him.  When the plaintiff
comes home from work, he is very fatigued and irritable.  His pain makes it
difficult for him to sleep and he has had to seek the assistance of
prescription medications to help him sleep.  The use of sleep medication is
necessarily limited to those occasions he knows he will not be called out to
work.

[159]     Dr. Adrian
was of the opinion that if the plaintiff was required to perform work
activities with higher demands than he has currently, he might not be able to
do it.  As mentioned above, Dr. Adrian’s opinion is that the plaintiff’s
injuries make it difficult for him to perform activities that involve
repetitive or awkward neck positioning or lifting, prolonged bending or
sitting, and those that involve jarring.

[160]     Dr. Adrian’s
opinion is that Mr. Davidge’s physical limitations are unlikely to resolve
and he is vulnerable to further injury.

[161]     I accept Dr. Adrian’s
evidence, which seems to accord with common sense when considering the nature
of Mr. Davidge’s pain and injuries.

[162]     A
functional capacity and work capacity evaluation of the plaintiff was conducted
by Mr. Russell McNeil, a registered occupational therapist, who is
qualified to conduct such evaluations.  However, he was asked to evaluate Mr. Davidge’s
ability to work as a roughneck, and was not asked to evaluate whether or not
the plaintiff is capable of working in his current occupation.

[163]     Nevertheless,
Mr. McNeil concluded that Mr. Davidge has the functional capacity to
perform activity that requires medium to modified heavy level strength. 
However, this is a demonstration of maximum capacity, and is different than
work capacity.  He also found that Mr. Davidge has some restrictions in
his tolerance for activities such as static standing and static vertical
reaching, as well as bending and stooping.

[164]     Mr. McNeil
gave the opinion that Mr. Davidge has the work capacity to be able to work
in occupations that fall within “light” to “medium” demands  In this regard,
“light” was defined as lifting 20 lbs occasionally; 10 lbs frequently; and
negligible constantly; “medium” was defined as lifting 20-50 lbs occasionally,
10 – 25 lbs frequently, or 10 lbs constantly.  Mr. McNeil concluded that Mr. Davidge
would not be able to work in jobs that have “heavy” physical demands, a
category in which working as a roughneck falls.

[165]     The
plaintiff must show that the injuries caused by the accident have created a
real and substantial possibility of a future loss of income: Perren v.
Lalari, 2010 BCCA 140.

[166]    
I am satisfied that the evidence does establish a real and substantial
possibility that the plaintiff will suffer a future loss of income as follows:

a)             
the plaintiff has a relatively high level of chronic pain;

b)             
his job requires a great deal of concentration;

c)              
his job puts physical stresses on his body;

d)             
he has some physical limitations which will prevent him from performing
even more physically demanding tasks than those he performs now;

e)             
as a matter of ordinary human experience and common sense, a person’s
ability to tolerate chronic pain diminishes with age; and,

f)               
over the course of time the plaintiff’s injuries make him vulnerable to
other injuries especially since he is pretty much at the limit of his physical
abilities now.

[167]     All of
these factors lead to a real and substantial possibility that the plaintiff will
not be able to sustain his current employment.  He may one day lose his job or
have to quit it, or will be forced to make a choice to retire earlier than he
otherwise would have done but for his injuries.  Early retirement of course
will negatively affect the size of his pension.

[168]     The
plaintiff has never been likely to qualify for work that requires a great deal
of reading, given his dyslexia and slow pace of reading.  His natural talents
and best opportunities to earn income pre-accident were in positions which were
physically demanding.

[169]     If the
plaintiff does end up leaving his current employment, I find that he will have
fewer employment options open to him and will be less attractive as an employee
than he would have been but for the accident.  Prior to the accident, he was
able to work jobs that required a very high level of physical ability; his
abilities in this regard have diminished because of the accident foreclosing
some job opportunities from him.

[170]     This puts
the plaintiff in that category of plaintiffs for whom the “capital asset”
approach to measuring loss of earning capacity is well suited, as described in
the authorities such as Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353 (S.C.).

[171]     Here the
plaintiff’s evidence established that he has incredible drive, a work ethic, a
huge sense of responsibility to his intended wife and stepchild and that he
will do everything in his power to maintain his current career.  All of this is
a contingency weighing against a large award for loss of earning capacity.  There
is also the small chance he could obtain a promotion to a position that
involves a somewhat smaller lesser amount of daily physical stress.  On the
other hand, sheer force of will alone cannot overcome physical limitations, and
for all of the reasons just mentioned, there remains a very real and
substantial possibility that his current career will be cut short and he will
have less employment opportunities than he otherwise would have pre-accident.

[172]    
In Raikou, the court applied the capital asset approach to assess
damages, as follows, at para. 99:

In Pallos the court
applied the capital asset approach and held that one method of assessing
damages under this approach is to award the plaintiff the equivalent of one or
more years of his or her current income to compensate for the diminished
earning capacity: See Miller v. Lawlor, 2012 BCSC 387 at paras. 136-140,
and Mackie v. Gruber, 2010 BCCA 464 at paras. 14, 18-20. That
approach is reasonable in the circumstances of this case. Ms. Raikou
currently earns approximately $35,000 per year. Using two years’ earnings as a
guide, I award her $70,000 for loss of future earning capacity.

[173]     Not
everyone employed in the plaintiff’s line of work earns the same income, as it
depends in part on the number of shifts and this turns on seniority.  The
evidence suggests, however, that the plaintiff should be able to earn
approximately $125,000 per year in his present employment in relatively short
order.  I conclude that given the plaintiff’s injuries caused by the accident
and the effect this has on his ability to perform as a worker, a fair
assessment of loss of earning capacity is to assess his loss at roughly 2 times
$125,000 namely $250,000.

C.             
Past Loss of Earning Capacity

[174]     The
plaintiff left his oil patch job after the accident and claims this was due to
his injuries.

[175]     The
plaintiff’s evidence is that after he finished his two-week shift at the oil
rigs immediately after the accident in September 2009, he was advised by Dr. Rebeyka
to take time off work.  However, the plaintiff also said that the rigs were
shutting down then in any event.

[176]     In
November or December 2009, the plaintiff received a telephone call from a
co-worker telling him that the oil rig was starting up again and that he was
welcome to come back to work.  However, the plaintiff declined because of Dr. Rebeyka’
advice, and then because he was in the WHP.

[177]     The
plaintiff returned to work in February 2010, after the WHP ended.

[178]     Thus, one
period for which the plaintiff claims a past loss income is the December 2009
to January 2010 period.

[179]     ICBC
agrees that there is a past loss of income for this period.

[180]     The
difficulty is in calculating this loss.

[181]     We do not
know that a job would have been available on the oil rigs in December 2009 and
January 2010, other than the one piece of evidence that Mr. Davidge was
told there could be work in November or December 2009.  The plaintiff’s
evidence was that he first started working on the oil rigs in approximately
January 2008 although he was not exactly sure on his dates.  This would suggest
that work would also have been available in January 2009, had Mr. Davidge
been able to work.

[182]     The
plaintiff made more income in 2009 than in 2008.  In 2008, his employment
earnings were $27,313; in 2009, his employment earnings were $55,778.  He
worked approximately nine months in 2009, meaning his earnings in the months he
worked on the oil rigs were approximately $6,200 per month.  ICBC agrees with
this calculation.

[183]     I find a
real and substantial possibility that Mr. Davidge would have been able to
return to the oil rigs to work in December 2009 and January 2010, but for the
injuries caused by the accident, for which he attended a work hardening program
during this period.  I assess this loss of income at $11,000 taking into
account a slight negative contingency that for some reason a job would not have
been available to him during those two months.  I find a negative contingency
appropriate given the thinness of the evidence supporting an inference that
work on the oil rigs would have been available during those two months.

[184]     The plaintiff
returned to work on the oil rigs in February 2010, and struggled.  There was a
normal shutdown in March 2010, following which the plaintiff returned to work
in May or early June, a period in which he said he also struggled.  He remained
working on the oil rigs until early August 2010 although with reduced time in
July because he attended a wedding.  After that, he did not work in this
industry.

[185]     The
evidence suggested, however, that in the previous year there was a long shut
down which lasted until September in any event, although the plaintiff
suggested that at times there might be other work available.

[186]     There was
no evidence as to whether there was work available on the oil rigs for the
plaintiff if he had felt able to return in the early Fall of 2010.  A fair
inference could be made, however, that there was a real and substantial
possibility that he would have been able to do some kind of physically
demanding work and would have done so but for the injuries sustained in the
accident.

[187]     There was
no evidence as to whether the plaintiff looked for less physically strenuous
work and whether he would have been able to manage that.  He suggested that he
had been making a good wage on the oil rig and did not want to go from that to
working in a retail store or fast food restaurant for minimum wage.  This
suggests that he simply did not look for alternate less physically demanding work. 
I draw the inference that he could have sought out and obtained some less
physically demanding work in the fall of 2010, although it may not have paid as
much as working as a roughhand on an oil rig.

[188]     It was
during this period that the plaintiff’s brother suggested he take a course at
BCIT related to working on trains.  He applied and was accepted.  He started
the program in February 2011.

[189]     For the
period from September 2010 until February 2011, I accept that there is a real
and substantial possibility that the plaintiff would have been able to find some
work of a physical nature, but for the accident.  From this one would have to
deduct the earnings for the work he could have done, had he chosen to look for
work, given his injuries and limitations.

[190]     Perhaps
the reason that the plaintiff has failed to call much evidence to assist in
assessing any past income loss for the period from September 2010 until
February 2011 is that any such loss was relatively minor and off-set by the
increase in income enjoyed by the plaintiff once he completed his BCIT course
and started his new career in the railway industry.

[191]     It was the
plaintiff’s burden to call evidence in this regard.  Given the limited
evidence, I have concluded that an award for this period of time must be modest
and I conclude it is reasonable to assess these damages as roughly half of the
damages for the period of December 2009 and January 2010, namely $5,500.

[192]     As for the
choice to take the BCIT course in February 2011, this appears to have been a
good thing for the plaintiff regardless of the accident.

[193]     The
plaintiff’s father gave evidence that he did not think that the oil patch job was
going to be a career job for the plaintiff.  Of course, this type of opinion
evidence is not worth much weight but it falls into the category of an
observation of the plaintiff’s abilities and interests from someone who knew
the plaintiff’s abilities and interests quite well.

[194]     More
importantly, there was no evidence to the contrary.  The plaintiff did not
testify that before the accident he wanted or expected the oil patch job to be
a long-term career for him.

[195]     Both the
plaintiff and the plaintiff’s father were enthusiastic about the plaintiff
taking the course at BCIT and obtaining a job with a major railway.  The
evidence supports a conclusion that this was a career advancement for the
plaintiff.

[196]     This means
that any negative impact the injuries had on past employment were offset to
some extent by the fact that this steered the plaintiff into a better long-term
career.

[197]     Once the
plaintiff commenced his training course in relation to the railway industry in
February 2011, through to trial, I find that he did not suffer a loss of
income.

[198]     In between
school ending and being hired by a railway company and sent for training, the
plaintiff worked for a cousin’s excavation and mowing business, driving a
tractor anywhere from a few hours per week to a one or two week period when he
worked eight hours per day.

[199]      When the
plaintiff’s course at BCIT, starting in February 2011, finished in May or June
he was hired quickly by a railway company.  He then got what he perceived as a
better offer from another railway company, and so left the first job for the
second about one month after his schooling ended, by July 2011.

[200]     I have
concluded therefore that the plaintiff should be awarded damages in relation to
past loss of income of $11,000 plus $5,500 for the total amount of $16,500.

D.             
Cost of Future Care

[201]     I turn now
to the question of whether the plaintiff will incur costs of future care
related to his injuries caused by the accident, and if so, the assessment of
damages in this regard. Such claims, to be recoverable, must be medically
necessary and reasonable: Milina v. Bartsch, 49 B.C.L.R. (2d) 33 at 78
(S.C.), aff’d on other grounds (1987), 49
B.C.L.R. (2d) 99 (C.A.).

[202]     Dr. Esmail
recommended that the plaintiff’s work stations, bathroom cabinets and sinks,
toilet seat and kitchen counters be ergonomically modified to control his
symptoms.  This is because the plaintiff is a tall man and bending over
aggravates his low back symptoms.  In relation to these changes, Dr Esmail
recommended a home visit by an occupational therapist and related evaluation.  However,
there was no evidence of the quantum of these possible costs.

[203]     The fact
that the plaintiff has not made any of these modifications or pursued finding
out more information in order to do so, despite having purchased a home and
having a good income, leads me to conclude that it is unlikely he would incur
these costs in the future.

[204]     Mr. McNeil
recommended the purchase of certain items to help the plaintiff manage his back
pain on the job, and for therapeutic use.

[205]     Again, the
fact that the plaintiff has not pursued any of these recommendations on his own
leads me to conclude that it is unlikely he will incur these costs in the
future.

[206]     Dr. Adrian
was of the view that the plaintiff might benefit from an update on his home
exercises, provided by a skilled personal trainer or a kinesiologist, although
this would not cure him.

[207]     Dr. Esmail
noted that stretching exercises, working out in a gym and yoga can help keep
the plaintiff’s spine supple and help him manage the pain.  It was his opinion
that the plaintiff would need to continue to use analgesics, or painkillers.

[208]     The
plaintiff does attempt to exercise, do stretches and yoga, and does frequently use
painkillers.  I consider that the evidence does establish that it is medically
necessary for him to continue to do so to try to manage his pain.

[209]     The
plaintiff submits that the sum of $10,000 is a reasonable award to address the
costs of future care.

[210]     I am
satisfied that there will be some future care damages but the evidence is thin
in respect of assessing the damages.  I conclude that an award of $3,000 is
reasonable as damages for costs of future care.

E.             
Special Damages

[211]     ICBC
concedes that if this Court finds that the low back injury was caused by the
accident, the plaintiff is entitled to special damages of $2,446.00 relating to
medical expenses he incurred in relation to his injuries.

[212]     The
plaintiff also seeks an award for the cost of his tuition, in taking the BCIT
course.  I do not find that an appropriate award, as this training was an
investment in the plaintiff’s future regardless of his injuries caused by the
accident.

[213]     I award
the plaintiff special damages of $2,446.00.

F.             
Non-Pecuniary Damages

[214]     Much
evidence was called about the leisure and recreational activities that the
plaintiff used to enjoy before the accident.

[215]     In short, if
fishing was a religion then Mr. Davidge would be one of its greatest
devotees.  He owned multiple fishing rods, each specific to a type of fish,
style of casting, type of river, or type of bait.  He was energized by the
physicality of it all: hiking to the best spot on the river or boating to the
best spot in the ocean; casting whether with a fly rod or a splay rod; pulling
in a large fish fighting against the line.  He can remember the details of
every great catch.  He fished as often as he could, often weekly.

[216]     Mr. Davidge
also liked to hunt, deep in the wilderness.  He was thrilled by the beauty of
nature, the remoteness, the sound only of birds and the wind.  He knew how to
cup his hands and call a moose.

[217]     Then the
accident happened.

[218]     There is
no doubt that the plaintiff’s chronic back and neck pain, caused by the accident,
has limited his ability to pursue these recreational activities to the same
extent as he once did.

[219]     However,
other things in life have intruded as well:  he now has a busy career, has a
common law spouse and a young child.  These are ordinary life responsibilities
that increase with one’s age and just about every working adult with a busy
career and personal life has to face the fact that he or she cannot pursue all
of the same interests to the same extent as when underemployed and single.

[220]      The fact
is that there are still many things that give Mr. Davidge pleasure in his
life, including his personal relationships and his reduced but still occasional
outdoor activities.  Nevertheless, I conclude that the daily chronic pain he
suffers intrudes and lessens these pleasures of life.  It also significantly lessens
his enjoyment of his work.

[221]     I have
looked at the cases referred to by counsel and no two cases are alike: either
the injuries are more or less severe or have a greater or lesser impact on the person’s
quality of life.  Here Mr. Davidge is a relatively young man facing what
should be the prime years of his adult life with chronic pain in his neck and
back.  His injuries will impact on all aspects of his daily life, preventing
his full enjoyment of experiences he used to enjoy, and limiting his enjoyment
of new experiences, including that of being a father and husband.  In all the
circumstances here, I consider an appropriate award of non-pecuniary damages to
be $90,000.

Conclusion

[222]     I have
found that the accident caused the plaintiff injuries to his neck and lower
back.

[223]     These
injuries continue to plague him with pain to this day, and are likely to do so
into the future.

[224]     I have
assessed the plaintiff’s damages as follows:

[225]    
Notice of any application for a costs hearing should be given within 45
days of this judgment, otherwise the plaintiff is awarded ordinary costs.

“S.A. Griffin, J.”
The Honourable Madam Justice Susan A. Griffin