IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141121

Docket: M095545

Registry:
Vancouver

Between:

Volodymyr Mandra

Plaintiff

And

Wen-Chuan Lu

Defendant

Before:
The Honourable Madam Justice Duncan

Reasons for Judgment

TABLE OF CONTENTS

Introduction. 3

The Accident. 3

Position of the Parties on Liability. 6

The Plaintiff’s Background. 7

The Aftermath of the Accident. 9

Cross-examination. 13

Other Observations of the Plaintiff
After the Accident. 15

Experts. 17

Dr. Helena Duchowska – The
Plaintiff’s Family Doctor 17

Natalia Allende – Occupational
Therapist 18

Dr. Cecil Hershler – Treating
Physiatrist 20

Dr. Alexander Levin – Psychiatrist 22

Dr. Stephen Helper – Independent
Medical Examiner 23

Dr. Scott Paquette – Defence
Independent Medical Examiner 24

William Kelley – Certified Management
Consultant 25

Credibility. 26

The civilian witnesses. 26

The expert witnesses. 27

Causation. 29

The Plaintiff’s Position on Causation. 31

The Defendant’s Position on Causation. 31

Conclusion on Causation. 32

Non-pecuniary Damages. 32

Past Wage Loss. 35

Loss of Future Earning Capacity. 36

Special Damages. 40

Cost of Future Care. 40

Summary. 42

Introduction

[1]            
The plaintiff, Volodymyr Mandra, seeks damages as a result of injuries
arising from a motor vehicle accident. The accident occurred on the morning of
January 9, 2008 at the intersection of Gilbert and Blundell Roads in Richmond. Mr. Mandra
was employed as a millwright but is now unemployed and collecting a disability
pension. He maintains the injuries he sustained in the accident have prevented
him from securing any form of gainful employment in the years that followed.

[2]            
The defendant, Wen-Chuan Lu, takes the position that the plaintiff is
50% liable for the accident. The defendant maintains the injuries from the
accident resolved in a reasonable time and the plaintiff’s lack of employment
is attributable to economic factors and/or subsequent workplace injuries
unrelated to the accident.

The Accident

[3]            
The accident occurred as the plaintiff was driving to work in his Toyota
van from his home in Richmond early in the morning. It was cloudy, but neither
raining nor snowing, and the area was well lit. The plaintiff was familiar with
the intersection as it was his daily route to work. He was travelling at about
50 kilometres per hour, northbound on Gilbert Road in the centre lane. Ahead of
him by about 100 metres, the plaintiff could see the light at the intersection
of Gilbert and Blundell was green for traffic proceeding north on Gilbert.

[4]            
When the plaintiff arrived at the intersection a vehicle approached at
high speed from east to west on Blundell, leaving him no time to avoid the
collision although he tried to brake. The plaintiff opened his eyes after a few
seconds and saw the light was still green for northbound traffic. His vehicle
had spun around and he was facing the opposite direction. He did not know what
had happened and sat in his car for a few moments. The driver of the other
vehicle involved in the accident was speaking on his phone.

[5]            
The plaintiff called for the police and an ambulance. Ambulance
attendants arrived on scene quickly and offered to take him to the hospital but
he declined, thinking he was okay, though he felt shocked and confused.

[6]            
On cross-examination the plaintiff denied the light changed from green
to yellow as he approached the intersection, maintaining it was a solid green. He
agreed that he travelled across the two eastbound lanes on Blundell before the
impact. The impact caused his vehicle to spin around although he could not specify
exactly how many times. He maintained that when he opened his eyes and looked
up, the light remained green for a couple of seconds. The plaintiff thought the
other vehicle was going very fast. He denied the suggestion that if he was able
to see it long enough to cross two lanes of travel into the intersection and
estimate the vehicle’s speed, he could have avoided the accident.

[7]            
The defendant testified he was proceeding eastbound on Blundell towards
Gilbert at about 30 kilometres per hour in his Caravan. The defendant’s
evidence is that the light was green for his direction of travel when he was
about 30 metres from the intersection. As he entered the intersection, the
light changed to yellow. The defendant says that because he was driving very
slowly he hesitated in the middle of the intersection in order to decide whether
to go right or continue straight. He decided to go straight and was hit on the
back left side of his car. His car spun around as a result of the impact. He
spoke to the other driver, the plaintiff. The defendant testified when the
police came they looked at his driver’s licence, saw he was okay and told him
he could leave.

[8]            
On cross-examination, it became apparent that Mr. Lu gave a
different account of the accident to an adjuster employed by the Insurance
Corporation of British Columbia (“ICBC”) on January 15, 2008, six days after
the accident. In the statement the defendant described driving on Blundell
approaching Gilbert at approximately 30 kilometres per hour in the curb lane. In
the statement the defendant said it was early, there was no traffic and he was
driving slowly. He was on his way to pick up a friend and take him to the
airport. As the defendant was within 30 metres of the intersection at Blundell,
the light turned from green to yellow, a detail which differed from his testimony
on direct examination. Despite this difference, the defendant confirmed with
counsel for the plaintiff that everything he said to that point in his
statement was true.

[9]            
Another difference between the defendant’s statement and his evidence at
trial arose when plaintiff’s counsel put the next part of his statement to him.
Therein, the defendant said the light had changed to red by the time he entered
the intersection. When asked by plaintiff’s counsel to explain this discrepancy,
the defendant said when he told this to the ICBC adjuster it was true but his
evidence at trial is that the light was still yellow when he entered the
intersection. He blamed the discrepancy on his mental state when he was giving
the statement, but nevertheless maintained he was telling the truth at that
time. The defendant said when he calmed down “later” he remembered entering the
intersection when the light was yellow. He did not give a second statement to
ICBC correcting this detail because he was not asked to do so.

[10]        
The defendant acknowledged he said in his statement that he hesitated
and nearly stopped in the intersection as he debated whether to go right or straight;
however, he denied on cross-examination that he came to a full stop. He
explained he was thinking at the time it was better to go right because the
light was “different”, but he ultimately proceeded straight through the
intersection. When he passed the middle point of the north-south lanes the
other car struck him.

[11]        
The defendant was examined for discovery on April 19, 2011. He acknowledged
he said during his examination for discovery that he was trying to make a right
turn because he thought it was a safe choice. However, he denied the suggestion
of plaintiff’s counsel on cross-examination that he was attempting a right turn
to avoid the collision. The defendant also said at the examination for discovery
that he did not see the other vehicle before impact because it was coming
quickly. At trial, however, he could not explain how he knew it was coming
quickly if he had not seen it. He maintained he could “feel” it approaching
very quickly and suggested he saw it out of the corner of his eye.

[12]        
I accept the plaintiff’s evidence that he had a green light as he was
proceeding northbound on Gilbert. His evidence in that regard was not shaken on
cross-examination and I heard no evidence of the timing of light cycles at that
intersection which would cast doubt on his version of events. I accept his
evidence that he did not see the defendant’s vehicle enter the intersection and
cross his path until a split second before the collision. I do not find the
defendant’s vehicle was travelling as quickly as the plaintiff described, though
I accept it appeared suddenly and unexpectedly.

[13]        
I reject the defendant’s evidence. If this were a criminal case the
defendant’s evidence would not leave me with a reasonable doubt. His
explanation that he told the truth to whomever he spoke about the accident is
untenable because his statement, his examination for discovery evidence, and
his testimony before me are irreconcilable in material aspects.

[14]        
I find the defendant was meandering at a leisurely pace along Blundell,
not really paying attention to the traffic control signal at Gilbert. His
casual attitude is likely best explained by the fact that it was early in the
morning, he was not going to work and there was not much traffic. I find that
once he entered the intersection and realized he had done so contrary to a red
light, he briefly debated making a right hand turn but decided to keep going
through the intersection and it is at that point the accident occurred.

Position of the Parties on Liability

[15]        
Counsel for the plaintiff submits the accident was entirely the fault of
the defendant.

[16]        
Counsel for the defendant, while acknowledging the difficulties with his
credibility, takes the position that the plaintiff must have seen the
defendant’s vehicle in the intersection and thus, had a duty to avoid him. Counsel
relies on Walker v. Brownlee and Harmon, [1952], 2 D.L.R. 450 at 461:

While the decision of every motor
vehicle collision case must depend on its particular facts, I am of the opinion
that when A, the driver in the servient position, proceeds through an
intersection in complete disregard of his statutory duty to yield the right of
way and a collision results, if he seeks to cast any portion of the blame upon
B, the driver having the right of way, A must establish that after B became
aware, or by the exercise of reasonable care should have become aware, of A’s
disregard of the law B had in fact a sufficient opportunity to avoid the MVA of
which a reasonably careful and skilful driver would have availed himself.

[17]        
Counsel for the defendant also relies on Seddiq v. Chong, 2012
BCSC 2080. In that case the plaintiff was found to be the driver of the
dominant vehicle at an intersection controlled by a flashing green light but
was still required to exercise caution and preparedness to stop. I note that
case is quite factually distinct from the one before me, as Mr. Seddiq was
in the centre lane proceeding through an intersection with a flashing green light
while the vehicles to his right remained stopped. Under those circumstances he
should have been aware that caution was required before proceeding on the
flashing green.

[18]        
As I set out above, the defendant’s evidence is utterly incapable of
belief. It paints a picture of someone unsure how to proceed until the last
second, at which point he executed a dangerous maneuver by forging across the
intersection against a red light. To a vehicle in the plaintiff’s position,
travelling towards a green light in the centre lane of northbound travel, the
defendant would have appeared, at best, to be contemplating a right turn from
the westbound curb lane before unexpectedly, illegally and dangerously
proceeding across the intersection. I find the defendant to be 100% at fault
for this accident.

The Plaintiff’s Background

[19]        
Mr. Mandra was born on September 19, 1954, in a small town in the
Ukraine, which was then a part of the U.S.S.R. Mr. Mandra obtained
technical qualifications as a millwright and an industrial crane and heavy duty
crane operator. He worked for a number of years in the former U.S.S.R. and in
Germany. In 1994, he immigrated to Canada with his wife and two sons. Mr. Mandra’s
background and training assisted him in finding work quickly, first as a
machine operator and then as a maintenance worker. In 2005, he was hired at
Ebco Industries (“Ebco”) in Richmond and was employed there as a millwright up
to the time of the accident. Ebco is a heavy machining and manufacturing plant.

[20]        
The plaintiff described himself as strong, healthy and agile before the
accident. He had no pre-existing back problems and was able to work without any
difficulty as an industrial millwright, a job which demanded considerable
lifting, kneeling, crawling and other physical tasks. His only pre-accident
work injury was a pulled muscle in his stomach about two years prior to the
accident. That injury resolved after a few weeks off work. He earned
approximately $70,000 per year in 2007.

[21]        
Lyudmilla Mandra described her husband as a happy man before the
accident. They settled in well after arriving in Canada, making new friends,
travelling, and generally enjoying a happy family life. They liked to camp,
swim, go to the movies, play table tennis and travel. The couple enjoyed
entertaining and having parties with friends. Mrs. Mandra testified her
husband made a good living.

[22]        
Roman Gershkovich worked at Ebco as a mechanic’s helper from June 2007
until November 2008. Throughout this period he worked closely with the plaintiff
and had the opportunity to observe him on a daily basis. He said the
plaintiff’s job required physical strength and the stamina to sustain a squat
for periods of time. In addition, it required bending and twisting or climbing
up and down staircases to work on some of the high machines. Even the most
basic duties of a millwright, such as lubricating the machinery, involved
carrying a 25-pound pail and pulling or pushing a cart full of coolant for
several hours per day. Mr. Gershkovich testified he never heard any
complaints from the plaintiff about his health before the accident. He once saw
the plaintiff easily complete 25 push-ups at work just for fun. Mr. Gershkovich
described the plaintiff as always in a good mood and someone who appeared to be
in good health.

[23]        
Mirsad Djodjic is the senior millwright and foreman at Ebco and worked
with the plaintiff for a number of years. Mr. Djodjic described the
plaintiff as a good employee who performed his work well and learned well on
the job. He described the plaintiff before the accident as a healthy man who
never complained about physical problems. Mr. Djodjic indicated the
plaintiff was capable of doing any job and did so with a positive attitude. In Mr. Djodjic’s
view, the plaintiff was a happy man who was a pleasure to work with.

[24]        
Paul Power, the maintenance manager at Ebco, hired the plaintiff in 2005
as a millwright. Mr. Power described the requirements of the millwright
position, noting that it demands skill in many areas of repair and maintenance
to keep the plant running smoothly. It is a physical job requiring pulling,
pushing, stretching, reaching, lifting and straining. Mr. Power also noted
the physically demanding nature of the job includes the requirements to be walking
or standing 75 to 100% of the time. Reaching up, bending and crawling are
required at least 50% of the time. Lifting up to 24 pounds frequently and up to
74 pounds occasionally are also job requirements. Mr. Power described the
plaintiff as someone who had no difficulty with the physical demands of the job
prior to the accident.

The Aftermath of the Accident

[25]        
Immediately following the accident the plaintiff continued to work on
foot. Mr. Power, Mr. Gershkovich and Mr. Djodjic all testified
that when they saw the plaintiff that day at Ebco he was pale, shaken and
appeared to be in shock. Mr. Power instructed him to take the day off, drove
him home and told him to rest.

[26]        
The plaintiff said he felt stress and shock immediately after the
accident. A few hours after the accident he saw his family doctor, Dr. Myckatyn.
At that time the plaintiff complained of buzzing in his head, pain in his lower
left back, his neck and his upper back on the right side. His doctor told him
to come back the following week.

[27]        
The plaintiff returned to work at Ebco the next day. He felt terrible,
finding it difficult to concentrate or hear anyone. He suffered vision
impairment and could only see a small gap of light ahead of him. He described
his vision to the left and right as “dark”. His memory, coordination and
orientation were poor. The plaintiff said he knew something was wrong but was
brought up to be patient and not complain so he hoped everything would
stabilize.

[28]        
The plaintiff said his co-workers observed his difficulties and
suggested he see a doctor. This concern was echoed by his wife when the
plaintiff got home from work on January 19. At that time his wife insisted he
see a doctor as the pain became worse by the hour. By this time he felt pain
“all over” but concentrated in his chest and upper abdomen. He could not touch
his chest and it felt as if someone had beaten him. His back was sore and he
could not turn himself over in bed without his wife’s assistance. He went to Emergency
where he was given a prescription for Ativan and told to go back to his family
doctor.

[29]        
Mr. Mandra’s doctor referred him to physiotherapy, massage therapy
and chiropractic therapy. The chiropractic and massage therapies provided some short
term relief. The plaintiff’s doctor also recommended swimming and other
exercise. Mr. Mandra tried swimming but it made things much worse. His
fingers became painful and he could not pick up a spoon or handle the remote
control for the television unless he used two hands. He grew dissatisfied with
his doctor and went to see Dr. Duchowska in April 2008. The details of Dr. Duchowska’s
treatment plan will be canvassed later in these reasons.

[30]        
The plaintiff returned to work part time in May 2008, following the plan
of an occupational therapist provided by ICBC. He slowly worked his way to full
time employment on light duties. He received kinesiology treatment for two
months, three days per week. It was painful but he did as directed. He began
struggling with his right ankle and numbness and tingling in his toes. His left
low back was much worse and he had pain in his left leg from time to time. Overall,
he had significant pain in his middle back, upper back and neck, as well as
headaches. He took medication and his wife helped him with massages so he could
get through his workday. The plaintiff suffered a workplace accident in May
2009 when he bent down to pick up a tool and aggravated his back. However, he
diligently followed treatment instructions and did his best to work through the
pain.

[31]        
In June 2009, the plaintiff was laid off due to the economic slowdown. He
was called back about a month later for a short period then laid off, again due
to the economic slowdown. The plaintiff acknowledged the layoff had nothing to
do with his injuries. During this time he kept up with treatment and
physiotherapy and tried to look for another job. He knew he had limitations and
could not do heavy duty work which had previously comprised a significant
portion of his work experience. Despite this he actively sought employment. He
estimates he sent out approximately 2,000 copies of his resume. He received
very few interviews and was candid with potential employers who contacted him,
advising them that he had limitations because of a car accident; however, the
plaintiff acknowledged that his resume did not state his physical limitations.

[32]        
Mr. Mandra underwent a vocational assessment with Derek Nordin on
December 15, 2009. Mr. Nordin is a Certified Vocational Evaluator who
provided a report dated December 23, 2009. He concluded the plaintiff could not
fulfill the duties normally associated with work as a millwright without
accommodations and his ability to find lighter duty work was compromised by his
language barriers, limited math skills and his age.

[33]        
Mr. Nordin reviewed Natalia Allende’s report. Ms. Allende is an
occupational therapist who also assessed Mr. Mandra in late 2009. Ms. Allende
concluded the plaintiff had the potential to work in light and medium strength
jobs but set out a comprehensive list of restrictions which excluded working as
a millwright. In Mr. Nordin’s opinion, finding a job the plaintiff could actually
do within that range of restrictions was a challenge. Mr. Nordin was of
the view that even training as a crane operator, a job Mr. Mandra had done
before he came to Canada, was not an option given his age and physical
limitations.

[34]        
Mr. Mandra defied Mr. Nordin’s prediction. In the fall of 2010,
he was hired by Coast Wholesale Appliances as a glass fabricator. The salary
was $16/hour, a considerable step down from the $29.47 he earned latterly at Ebco.
The employer apparently did not ask about his health condition. Mr. Mandra
worked for about a month then had an accident (the “First Workplace Incident”).
An A-frame with glass on it, about 400-500 pounds, started rolling. A pane of
glass tipped. The plaintiff caught it, felt a sharp pain and dropped the glass.
He felt pain in his low and upper back and neck. He also had pain in his left
shoulder, which was new. The company investigated and determined the glass
weighed 75 pounds. Mr. Mandra reported to some people, including Dr. Duchowska,
that it weighed substantially more.

[35]        
The plaintiff reported the First Workplace Incident to WorkSafe right
away. He was on disability for a month following the accident but WorkSafe
stopped his benefits, blaming his injury on the car accident. During this
period the plaintiff was off work for approximately two months and attended
physiotherapy as directed by WorkSafe. This was his first physiotherapy since
about six months after the car accident. The plaintiff’s WorkSafe benefits were
discontinued on December 20, 2010. He asked Dr. Duchowska for help,
describing his injuries as new based on the pain he was experiencing and
seeking another MRI. He successfully appealed the WorkSafe decision and
ultimately returned to work on light duties with a back brace.

[36]        
The plaintiff suffered a second accident at work in September 2011 (the “Second
Workplace Incident”). He turned a piece of glass weighing about 15 pounds to
cut it and felt a sharp stabbing pain in his back. He applied for disability
and undertook massage therapy and then physiotherapy in an effort to recover. After
two months of rehabilitation on a full time basis, he returned to work on light
duties, pursuant to his doctor’s recommendation. Shortly thereafter, in February
2012, he was laid off when Coast Wholesale Appliances shut down its glass
operation due to economic factors. He had applied for Canada Pension Plan
disability in January 2012 and was granted a disability pension shortly
thereafter. He made further attempts to find light duty work but had no success.

[37]        
Since the accident, the plaintiff’s main symptoms are pain in his low
back, middle and upper back, right leg, left leg, neck, shoulder and headaches.
His right leg is constantly sore in the ankle and foot area and his left side
is numb and tingling. He has had dizzy spells, balance loss and psychological
issues. Mr. Mandra describes the constant pain in his head at about four
or five out of ten. On a bad day it is up to eight or nine out of ten.

[38]        
Mr. Mandra has seen a battery of specialists, physiotherapists,
massage therapists and chiropractors and was assessed and treated at the BC
Back Institute. They recommended decompression treatment but it was too
expensive. He takes prescription drugs for pain and other symptoms including
Lyrica, Ativan, Cymbalta, Ramapril, Gabepentin and Tramadol along with Naproxen
and Tylenol 3.

[39]        
Mr. Mandra says he cannot afford decompression therapy or
psychological treatment. The car accident made him anxious and depressed and negatively
affected his sleep. He does not get out much because of all the treatment and
medical appointments. He and his wife seldom see their friends. The accident
has affected their social life. While they used to have lots of friends and
enjoyed travelling, fishing and dancing, that is no longer the case. He finds
it hard to sit for more than 15 minutes at a time making it hard to travel. He
is always sore after physical activity. He can no longer do work around the
house or help his wife with the shopping like he used to pre-accident. Before
the accident Mr. Mandra planned on retiring as late as age 70 because he
did not start work in Canada until 1994.

Cross-examination

[40]        
The plaintiff did not recall telling Dr. Myckatyn in March 2008 that
he was feeling better overall. He switched to Dr. Duchowska in April 2008
because he wanted more attention and treatment than he had been receiving.

[41]        
Mr. Mandra maintained that his headache pain is a constant at four
or five out of ten, sometimes higher, since the accident; however, he acknowledged
telling a neurologist, Dr. Robinson, the pain was between two and four. Mr. Mandra
explained the discrepancy by saying he probably meant the level of pain varied.
He said his headaches increase with physical activity.

[42]        
The plaintiff acknowledged he told Dr. Varelas, a neurologist he
saw in June 2008, that his neck pain had improved by 70% and his upper back pain
by 60-70%. In addition, he reported his hand numbness issue had improved but
his low back still caused him a lot of pain.

[43]        
Counsel challenged the plaintiff on his reports of left and right leg
pain, suggesting he told the WorkSafe nurse in 2010 he had never had a problem
with his left leg prior to the First Workplace Incident. Mr. Mandra said
he did not complain about it to the nurse because it had improved and was not
bothering him immediately before the First Workplace Incident. While he agreed that
the radiating left leg pain did not happen before the First Workplace Incident,
on re-examination it was apparent he complained of such pain to Dr. Duchowska
in 2008.

[44]        
The plaintiff agreed that when he returned to work full time on light
duties in August 2008 he was earning the same hourly wage as before and even
worked overtime between January and June 2009. He worked through the pain of a
workplace incident in May 2009 when he bent to pick up a tool and aggravated
his back. He agreed the layoff in June 2009 had nothing to do with his
injuries, work was just slow. He was called back in August-September 2009 then
laid off again. A year later he received a letter from Ebco saying there was no
job for him, his seniority was lost and he would have to re-apply at Ebco. The
plaintiff said he looked for other jobs after he was laid off and before he
received that letter but he thought Ebco would call him back.

[45]        
The plaintiff was questioned about the fact that on his first
application for Canada Pension Plan disability benefits he marked “no” in
response to the question whether he planned to return to work or seek work in
the near future, though he was sending out resumes and trying to find work. This
first application for CPP benefits was denied. His dream was to return to work,
even if he had a disability.

[46]        
The plaintiff estimates he sent out around 2,000 resumes in 2010. He
applied for maintenance and mechanic jobs. He felt he did not get a job because
of his injuries and the bad economy, but agreed he did not note his injuries on
his resume. He only had 10 interviews and only told those prospective employers
about his condition.

[47]        
Counsel for the defendant asked the plaintiff about his emotional well-being
in the years since the accident. He agreed he lost $40,000 in mutual funds in
March 2009 but maintained it did not affect him despite the fact he told Dr. Duchowska
he was upset about losing the money. He agreed that losing the job at Ebco
caused him stress, as did losing his more recent employment at the glass
manufacturer. He was upset with WorkSafe because he perceived he was not
treated fairly. The plaintiff said everybody gets upset with injury and pain.

[48]        
The plaintiff saw a counsellor three times and took anti-depressants. He
felt the sessions were helpful and would have gone for more but could not
afford it. His wife’s extended benefits would not cover the treatment.

[49]        
On re-examination the plaintiff clarified he told Dr. Duchowska in
October 2010 he was dizzy, not after the First Workplace Incident which
occurred that November, as suggested on cross-examination. He also agreed he
told her about radiating pain in his left leg on April 14, 2008 and pain in his
right leg in August 2008.

Other Observations of the Plaintiff After the
Accident

[50]        
Mrs. Mandra said her husband was never a complainer but from the
day of the accident he had neck and back pain. It slowly got worse. He had
difficulty turning over in bed. His help around the house decreased and he
could no longer lift heavy things. Mrs. Mandra would try to stay on his
right side when they went for walks, because it was that leg which seemed to be
problematic. She would position herself in that fashion so she was able to
assist her husband if he had difficulties walking. On one walk the plaintiff
was in so much back pain she thought she would have to call for an ambulance. He
is no longer a happy, joking, smiling man. He is sometimes forgetful. He cannot
sit for long periods. He does the exercises his doctor gave him and gets
acupuncture and physiotherapy. Mrs. Mandra massages his back when it gets
numb. They do not socialize much.

[51]        
On cross-examination, Mrs. Mandra said her husband was in a fair
amount of pain after the First Workplace Accident and in bed for a few weeks
after the Second Workplace Accident, though things stabilized a bit after that.
She agreed that when they lost money from their mutual funds account he was
upset. They moved into a smaller apartment after the accident, which requires
less cleaning and has no garden.

[52]        
Mrs. Mandra is 63 and hopes to retire at 65. She used to plan on
working to 67 but she wants to spend more time with her grandchildren.

[53]        
Mr. Gershkovich said when the plaintiff returned to work after
medical leave in May 2008 he “was a different person”. He was not as energetic
as before and Mr. Gershkovich observed that he moved more slowly and
appeared tired. Mr. Gershkovich described changes in the plaintiff’s
demeanour, stating that he did not have fun at work or smile like he used to. He
complained of problems with his spine and could not do active physical jobs
when he first came back to Ebco.

[54]        
Mr. Gershkovich was laid off in November 2008 and did not see the
plaintiff again until about two years before trial. He was in a parking lot in
Surrey when someone called out to him. It took him a few moments to recognize
the plaintiff because he looked like an old man. Mr. Gershkovich described
the plaintiff as “all stooped over”. Mr. Gershkovich and the plaintiff are
the same age but the plaintiff did not look like the man he had worked with
only four years earlier.

[55]        
Mr. Djodjic said the plaintiff worked for a few days after the
accident but he was constantly in pain, complaining about his back and was generally
unable to hide his obvious suffering. When he came back from disability leave
he did not look the same. The plaintiff was not happy, he did not joke around
like he used to and he was not capable of doing the job in the way he had
previously been able. Mr. Djodjic tried to protect him from bending or
lifting heavy things because he treated his department like his family and
looked after everyone. He did not think the plaintiff was 100% capable of doing
his job. The plaintiff was assigned light duties but there really were none as
even lubricating machines requires reaching and climbing.

[56]        
Mr. Djodjic would cover for the plaintiff if there was a job where
he had to use his back. The plaintiff’s back trouble limited the things he
could do and even affected his ability to stand. Mr. Djodjic emphasized that
a good back is very important for millwrights. Despite these limitations, Mr. Djodjic
agreed he asked Mr. Power to recall the plaintiff after the June 2009
layoff.

[57]        
Mr. Power confirmed the plaintiff went on disability for several
months and when he returned to work he complained about his back, even though
he was not doing most of his pre-accident duties. The plaintiff was eventually
laid off for a shortage of work at Ebco. Mr. Power said a good back was
100% important to him when hiring a millwright. He likely would not hire
someone with a bad back and was of the view that this was a general trend
across the industry.

[58]        
Mr. Power acknowledged he told the occupational therapist arranging
Mr. Mandra’s return to work that it would be difficult to provide light
duties for more than 1.5 hours per day but he also agreed by August 2008 the
plaintiff was back full time as a millwright on light duties. Mr. Power
said the plaintiff was working with other millwrights assisting them on their
projects. While the plaintiff was a good millwright, Mr. Djodjic was “1A”
at Ebco and was always the first one asked to deal with issues relating to the
large machinery.

[59]        
Mr. Power confirmed the layoff in June 2009 was due to a shortage
of work and he called the plaintiff back in August because Mr. Djodjic
asked him to. The final layoff was in September 2009. He felt the plaintiff would
have trouble finding work as a millwright due to his bad back but despite that,
the plaintiff was working at Ebco on light duties. Mr. Power would not
hire someone with two Worksafe claims and he was not aware of the plaintiff’s
two subsequent work injuries.

Experts

Dr. Helena Duchowska – The Plaintiff’s Family Doctor

[60]        
Dr. Duchowska took on the plaintiff as a patient in April 2008. She
saw him dozens of time for various complaints until her retirement in January
2012. Her records are a compendium of the plaintiff’s complaints, some related
to the accident and some not. The doctor’s evidence was admitted by way of
video deposition.

[61]        
Plaintiff’s counsel sought to rely on Dr. Duchowska’s opinion about
Mr. Mandra’s complaints and whether they arose from the accident. Defence
counsel took the position that Dr. Duchowska was sympathetic to the
plaintiff and pushed by him into supporting his ill-founded applications for
disability insurance or pensions.

[62]        
I considered Dr. Duchowska’s evidence carefully and I found it most
useful and relevant as a reference point for the evolution of the plaintiff’s
condition after the accident rather than as opinion evidence. I prefer to rely
on the evidence of experts in discrete areas of medicine to arrive at
conclusions concerning the plaintiff’s condition and prognosis as well as his
level of disability. Accordingly, there is no need to detail Dr. Duchowska’s
evidence.

Natalia Allende – Occupational Therapist

[63]        
Ms. Allende conducted a physical capacity evaluation of the
plaintiff in December 2009. She concluded he was employable in limited, light
and medium strength occupations with physical restrictions. He did not have the
physical capacity to access any jobs in an open labour market that required him
to exceed the following restrictions:

·      
restricted to sitting in a work intensive posture on an
occasional basis for 20 to 25 minutes at a time;

·      
restricted to standing in a work intensive posture on an
occasional basis for a few minutes at a time;

·      
restricted to walking on an occasional basis only;

·      
restricted to performing sustained and repetitive bending on an
occasional basis only;

·      
restricted to performing repetitive and sustained crouching on an
occasional basis only;

·      
restricted to kneeling on an infrequent basis;

·      
restricted from high level activities and restricted to chair
climbing on an infrequent basis and ladder climbing entirely;

·      
restricted to reaching at overhead, shoulder and below knee
levels on an occasional basis for 1-2 minutes at a time;

·      
restricted to reaching at waist level on an occasional basis for
25 minutes at a time;

·      
restricted to handling on an occasional basis and should not be
required to meet productivity requirements.

[64]        
Overall, Mr. Mandra did not demonstrate the functional abilities
required for the job of millwright, specifically the requirements for strength,
upper limb coordination, sitting, standing, walking, bending, stooping,
kneeling or crouching.

[65]        
On cross-examination, Ms. Allende agreed the plaintiff perceived
himself to be less able than he actually was, especially in terms of the weight
he could lift. The plaintiff perceived he was limited to light work, whereas
the assessment results indicated capability to perform medium work, with
restrictions. This is consistent with the fact that he could do the job at the
glass fabrication facility as it did not involve frequent lifting of over 40
pounds. However, Ms. Allende stated the plaintiff could not work as a
millwright. Ms. Allende was aware he was called back to work as a
millwright but suggested he may have had a sympathetic employer.

[66]        
In spring 2014, Ms. Allende produced a cost of care report. She
outlined the services that previous caregivers had recommended and provided the
cost of those services for plaintiff’s counsel. I will address that report later
under the cost of future care.

Derek Nordin – Certified
Vocational Evaluator

[67]        
Mr. Nordin’s evidence is summarized at paragraphs 32-33 above.

Dr. Cecil Hershler – Treating Physiatrist

[68]        
Dr. Hershler first saw the plaintiff in March 2010 as a result of a
referral from Dr. Duchowska. He prepared five reports dated March 10,
2010, June 15, 2010, May 17, 2012, October 11, 2012 and February 4, 2014.

[69]        
At the first visit the plaintiff reported to Dr. Hershler that in
the first few days after the accident he had pain on the right side of his neck
and right upper back, a buzzing sound in his right ear and pain in his left
lower back. He reported he followed his doctor’s advice to be as active as
possible and keep working but the pain increased in the right upper back and
neck, mid-back and left lower back. He began to experience headaches in
addition to the buzzing sounds in his right ear. On January 19, 2008, he was
unable to continue working due to pain, headaches, tinnitus and secondary mood
changes. He followed a course of physiotherapy and medication as recommended by
his family doctor. In late 2008, the plaintiff had not improved and reported
feeling worse. He also reported pain and numbness in his hands. The pain spread
from the low back to the right side and down the right leg, then the left leg. He
noticed occasional balance problems with his right leg due to pain and numbness.

[70]        
Dr. Hershler noted in the March 2010 report that the plaintiff had
a mildly antalgic gait pattern, meaning he was reacting to pain by shortening
the amount of time he spent on his left leg. The plaintiff complained of pain
and electrical shock on palpation of his lumbar spine, which is quite a rare pain
pattern. This usually indicates some nerve structure is vulnerable to pressure.

[71]        
Upon a review of medical imaging from May 2008 as well as other
available test results, Dr. Hershler was of the opinion that the plaintiff
had muscular injuries in the neck and upper back, generally more concentrated on
the right, as well as some disc abnormality. Dr. Hershler thought there
was disc impingement on the left L3 nerve root. He noted evidence of arthritic
change to the spine which he thought was rendered symptomatic by the trauma
from the accident. He found no evidence of nerve damage but concluded the
symptoms were likely referred from irritation to the nerve roots.

[72]        
Dr. Hershler disagreed with the proposition that the MRI results or
his physical examination of the plaintiff were consistent with what is normal
for a man of the plaintiff’s age; however, he acknowledged that a large number
of findings on the MRI could have predated the accident. The one exception was
the protrusion at L3-4. Dr. Hershler maintained it would have been
symptomatic if it predated the accident and therefore it was likely caused by
the accident.

[73]        
Dr. Hershler found the plaintiff partially disabled from work that
involved twisting, lifting or bending on any regular basis. He supported the
idea of the plaintiff seeking light duty work that gave the plaintiff the flexibility
to sit and stand as needed. It should be noted that he did not see Ms. Allende’s
work capacity evaluation in which she concluded the plaintiff could do medium
strength work with some restrictions. Dr. Hershler said if he believes a
patient has a disabling injury and it is in their best interests not to work,
he will support them in seeking disability designation.

[74]        
In his four subsequent reports, Dr. Hershler noted no improvement
in the plaintiff’s symptoms. He was informed by the plaintiff of the two
workplace accidents and concluded that they aggravated his low back injuries
from the car accident. He agreed the plaintiff’s report of the First Workplace
Incident involved new areas of pain in his arms and upper back while the injury
sustained in the Second Workplace Incident involved a bolt of pain through the low
back.

[75]        
In his May 2012, report Dr. Hershler noted that with 4.5 years
having passed since the accident it was unlikely the plaintiff’s condition
would improve. He classified the plaintiff as having a permanent partial
disability with respect to his low back, which was likely to be symptomatic
indefinitely. He recommended pulse signal therapy. He is one of only two
service providers for this treatment. In a follow-up report dated October 11,
2012, he also recommended medical marijuana compounded in a topical cream. Dr. Hershler
is aware of directives from the Canadian Medical Association and Health Canada
about exercising restraint in prescribing medical marijuana. He views these
directives to be aimed at smoked cannabis of a particular strain, not those he
suggests as a cream or oral supplement. He agreed he is keen to use those types
of applications of medical marijuana in the field to assist in the gathering of
evidence about its efficacy and modality in pain management.

Dr. Alexander Levin – Psychiatrist

[76]        
Dr. Levin assessed the plaintiff in January 2012 and provided a
report on January 30, 2012. Dr. Levin’s interview with the plaintiff was
conducted in the Russian language. Dr. Levin thought that since the
plaintiff mentioned being in a fog after the accident there was the possibility
of mild concussive brain injury. However, Dr. Levin was of the view that the
plaintiff’s reports of irritability and forgetfulness were more likely caused
by depression than brain injury. The plaintiff’s initial symptoms of depression
and anxiety became prolonged and merited a diagnosis of major depressive
disorder.

[77]        
Dr. Levin interviewed Mr. Mandra while he was on a graduated
return to work at the glass fabrication job. His occupational functioning was
impaired because of constant fear of losing his job and his lack of self-esteem
in his abilities. His anxiety and fear were amplified because he is an
immigrant. The anxiety caused muscle tension. The plaintiff’s exhaustion at the
end of the day was an example of psychiatric effect on function. The
plaintiff’s depression appeared to postdate the layoff at Ebco but it had its
genesis in an adjustment disorder that resulted from the accident and the pain
he experienced. Pain can cause depression and in this case, Dr. Levin opined
that the accident ultimately caused the depression. While the plaintiff had a
number of stressors in his life, not all stressors cause depression.

[78]        
Dr. Levin concluded the plaintiff had a guarded prognosis in
respect of his psychological state due to his negative attitude. He lost his
identity as a working man which was important to him and his negative outlook was
fulfilled as he was unemployed. At the same time, Dr. Levin noted the
plaintiff motivation to return to work was remarkable in light of his negative
ruminations. Dr. Levin said many people suffering with major depression become
desperate and hopeless but the plaintiff pushed himself hard to get back to
work. Dr. Levin recommended further psychological intervention.

[79]        
Dr. Levin acknowledged that the plaintiff was concerned about being
laid off from the job he held in early 2010. That concern could cause muscle
tension and physical discomfort. He also agreed that losing money from an RRSP
investment caused distress, but emphasized that one does not develop depressive
disorder simply by losing money. In addition, psychiatric causes exacerbated
and compounded the plaintiff’s pain. Dr. Levin did not observe the
plaintiff to have any memory problems or issues with sustained attention, but
the interview was not structured and did not include an evaluation of distractibility.

[80]        
Dr. Levin agreed the plaintiff might have seen some improvement if
he had undertaken cognitive behavioural therapy earlier. Dr. Levin recommended
to the plaintiff’s family doctor an increased regular dose of Cymbalta. He
explained that sometimes general practitioners do not prescribe the correct
dosage of drugs for depression.

Dr. Stephen Helper – Independent Medical Examiner

[81]        
Dr. Helper is a physiatrist who conducted an independent medical
examination of the plaintiff on March 5, 2012. He was of the opinion that Mr. Mandra’s
neck pain, reported as worse on the right than the left, was due primarily to
soft tissue mediated pain in his neck. Dr. Helper could not rule out the
possible involvement of a facet joint injury. Dr. Helper recommended x-ray
guided injections to determine if the facet joint was the cause of some of the
neck pain.

[82]        
As to Mr. Mandra’s lumbar or back pain, which presented more on the
left than the right and radiated into the left lower extremity, Dr. Helper
was of the view that this was due to soft tissue mediated pain as well, in this
case likely gluteus medius tendinopathy. He did not rule out disc generated
pain, which is separate from soft tissue generated pain. Nor did he rule out a
somatic or psychological component; however, he felt the presentation was most
consistent with tendinopathy. Dr. Helper determined the accident was a
significant contributing factor to the plaintiff’s lumbar complaints.

[83]        
Dr. Helper found the cervical complaints, the right sided neck pain,
and the headaches were likely caused by the motor vehicle accident and not by
the two workplace incidents. Further, he did not think the workplace incidents were
a significant contributing injury to the neck or lumbar pain. Those incidents,
as described by the plaintiff, were relatively minor and would not on their own
cause the neck injury he presented with, neither were they likely to make it
worse. The plaintiff’s pre-existing lumbar complaints were potentially
aggravated by the two workplace incidents.

[84]        
Four years post-accident, Dr. Helper noted a significant psychological
component to the plaintiff’s overall presentation. His prognosis concerning the
resolution of the plaintiff’s neck pain was negative. His prognosis about the
back pain was guarded. Dr. Helper recommended specialized physiotherapy
and ultrasound guided injections to assist with the gluteus medius tendinopathy
along with a referral to Fraser Health Pain Management.

[85]        
Dr. Helper agreed that everything he knew about the accident came
from the plaintiff. If the First Workplace Incident involved more weight than
the plaintiff reported, Dr. Helper was of the view that it would not have
been a risk factor for his neck but possibly for his back. The Second Workplace
Incident, which arose after the plaintiff made a minor adjustment to a pane of
glass, caused a significant flare-up in his symptoms. In Dr. Helper’s
opinion the reaction had to do with aggravating the pre-existing condition and possibly
a psychological component.

Dr. Scott Paquette – Defence Independent
Medical Examiner

[86]        
Dr. Paquette is a neurosurgeon who assessed the plaintiff on July
26, 2012. While testing the plaintiff’s balance, Dr. Paquette encountered
two odd results. First, the plaintiff fell back when asked to close his eyes. As
soon as he started leaning back, the plaintiff reached out and grabbed for
support, indicating he knew he was falling. Dr. Paquette found this a
disingenuous reaction. Second, the plaintiff exhibited muscle give-away
weakness on his left side, upper and lower, during muscle testing.

[87]        
The plaintiff filled out a questionnaire indicating the location, extent
and severity of his pain. Dr. Paquette said the pain was not neurological
in origin nor did it appear to relate to the disc bulge which was apparent on
his post-accident MRI. Dr. Paquette was of the view that the abnormal
findings on that MRI were unrelated to the motor vehicle accident. In his
opinion, if the disc degeneration had been caused by the accident there would
have been matching symptoms. There was no evidence in his examination of the
plaintiff of a pinched nerve related to disc degeneration.

[88]        
On cross-examination, Dr. Paquette agreed the plaintiff had
received adequate advice about pain management and he could add nothing further.
He agreed the plaintiff’s pain could be soft tissue pain, disc generated pain
or a combination of the two, but he stated the pain was not neurologically
mediated. The plaintiff had no known pattern of pain that followed a single
nerve root or recognized clinical pattern. Dr. Paquette agreed that
depression or post-traumatic stress disorder can exacerbate typical pain
response in many patients. Most patients reach maximum recovery from soft
tissue injury within six months of the injury. Dr. Paquette acknowledged
that the plaintiff’s pain is now chronic but could not explain why he continued
to experience ongoing pain.

William Kelley – Certified Management Consultant

[89]        
Mr. Kelley is a certified management consultant. He provided a
report about Mr. Mandra’s potential earnings stream both pre and post-accident.
The figures he used were for average millwrights employed in British Columbia. The
average salary in 2013 was $72,372 based on Mr. Kelley’s illustrative
earnings chart. The figures Mr. Kelley used did not include labour market
contingencies such as layoffs.

[90]        
Mr. Kelley agreed when he first met with the plaintiff in 2010 they
talked about him working as a crane operator. Mr. Kelley is of the view
that the plaintiff’s limited English, chronic discomfort and limited physical
scope render him virtually unemployable. However, that was not his initial
opinion. He agrees he made a mistake about the plaintiff being “fired
gracefully” from Ebco and the subsequent job when in fact he was laid off due
to economic factors.

Credibility

The civilian witnesses

[91]        
The defendant acknowledges that the plaintiff’s evidence was consistent,
particularly in respect of some of his claims of ongoing pain and discomfort.
However, the defendant submits his evidence was inconsistent in other areas,
such as:  his evidence that he was responsible for 50% of the household chores
before the accident which was inconsistent with what he told various doctors
about doing little of consequence around the house; his evidence that he
aggravated his injuries in the First Workplace Incident in November 2010, but told
Dr. Duchowska they were new injuries; and his account to WorkSafe that he
never had left leg pain before November 2010 yet had complained of this to Dr. Duchowska
in 2008.

[92]        
I find the plaintiff did overstate the degree of household chores he was
responsible for prior to the accident. I do not ascribe anything negative to
his description of the injuries after the First Workplace Incident in November
2010 as new injuries, in part because English is his second language and in
part because of his psychological state. Finally, the plaintiff complained
about his left leg after the car accident and well before the First Workplace Incident
and I find his credibility is not impaired by his report to WorkSafe about left
leg pain.

[93]        
The defendant also points to the plaintiff providing misleading
information to obtain benefits from various insurance providers, citing his
first application for Canada Pension Plan disability benefits which was
inconsistent with his stated desire to work and with his ongoing search for work.
I acknowledge the plaintiff was both applying for work and applying for
disability but I accept this because he was in a panic about securing a source
of income and not because he was deceitful.

[94]        
The plaintiff testified extensively about his life after the accident.
While he was not a perfect historian, I find that he was a forthright and
honest witness. The plaintiff made genuine efforts to obtain employment after
the accident and his difficulties in doing so caused him great distress. Except
in relation to the few issues I have noted above, I accept the plaintiff’s
evidence about the consequences of the accident.

[95]        
As to the other lay witnesses, the tenor of the defendant’s submission
is that they were all deliberately trying to be favourable to the plaintiff to
assist him in the litigation. I found the plaintiff’s former co-workers were all
straightforward and honest in their evidence. I note that Mrs. Mandra
tended to overstate the amount of housework her husband did prior to the
accident. However, she agreed he was sad about losing his job and mutual fund
money rather than blaming everything on the accident, indicating she had a
balanced and fair approach to the causes of her husband’s suffering. Overall, I
accept the evidence of the plaintiff’s lay witnesses as fair, accurate and
balanced accounts of his condition before and after the accident.

The expert witnesses

[96]        
Counsel for the defendant takes the position that Dr. Duchowska did
the plaintiff’s bidding with applications for disability insurance and was an
unreliable documentary historian. I find Dr. Duchowska recorded and
reported on what she was told by the plaintiff. She may well have been
sympathetic to him in his applications for disability but I do not place any
weight on her opinion about the plaintiff’s condition, as I noted earlier,
because I prefer to rely on the focussed experts.

[97]        
Counsel for the defendant submits that Dr. Herschler has a history
of appearing exclusively for plaintiffs, that he failed to produce his entire
file prior to his attendance at trial despite the defence requests, and that
his opinion focussed on the May 2008 MRI as the source of disc pain despite the
fact that subsequent MRIs showed improvement.

[98]        
I agree with the defendant that Dr. Hershler’s opinion should be
given little weight. I find he seized on the May 2008 MRI as the source of the
plaintiff’s discomfort whereas the other experts, both Dr. Helper for the
plaintiff and Dr. Paquette for the defence, had a very different view of
the plaintiff’s MRI history. Similarly, I place no weight on Dr. Hershler’s
recommendations for pulsed signal therapy or medical marijuana cream. The
former is a service for which he is one of the only providers and the latter is
a treatment in its very early experimental stage with minimal empirical
evidence to suggest it will assist the plaintiff, if it is even permissible
under Health Canada’s medical marijuana exceptions.

[99]        
The defendant argues Dr. Levin’s evidence contained inconsistencies
insofar as he diagnosed memory problems yet found the plaintiff had no
difficulty concentrating during their interview. The defendant questions Dr. Levin’s
opinion that the plaintiff’s adjustment disorder and subsequent depression
originated with the accident, suggesting instead the job loss was the most
significant psychological event.

[100]     I found Dr. Levin’s
opinion about the plaintiff’s emotional state, and the causes of it, to be
clear and consistent with other evidence from Mrs. Mandra and the
plaintiff’s former co-workers.

[101]     The
defendant questioned Dr. Helper’s conclusion that the plaintiff’s
workplace incidents did not represent a significant contributing injury. Counsel
points to Dr. Helper’s written opinion in which he states that the First
Workplace Incident would be a mild risk factor for aggravating pre-existing
soft tissue pain from the neck and shoulder and his evidence on
cross-examination where he questioned his use of the term “mild”. Further, counsel
points out Dr. Helper has no medical records from the two workplace incidents
and conducted a fairly brief interview with the plaintiff due to language
difficulties. Counsel urges me to form the conclusion that Dr. Helper’s
opinion can be given little if any weight.

[102]     I disagree.
I find Dr. Helper’s opinion was carefully drafted and he was a credible
and reliable expert.

[103]     Counsel
for the defendant points out inconsistencies and errors in Mr. Kelley’s
evidence, such as his view that the plaintiff was “gracefully fired” from Ebco
and his subsequent employment when in fact the only reason was the economic
reality of the times. He also recorded the opinion that the plaintiff worked fewer
hours after his return to work when he had documentation showing the plaintiff
was working full time and overtime. He did not include in his calculations the
negative contingency of plant shutdowns. He seemed to want to distance himself
from an opinion held in 2010 that the plaintiff should get qualified as a crane
operator despite having that document drawn to his attention. Finally, counsel
for the defendant submitted Mr. Kelley’s opinion should be approached
cautiously and accorded little, if any, weight because he never actually had
the plaintiff complete the survey he bases his opinion on; rather, Mr. Kelley
anticipated what he thought the plaintiff’s answers would be.

[104]     Taking the
foregoing into account, I have ascribed no weight to Mr. Kelley’s evidence
except to use his wage projections as a basis for loss of capacity. In doing so,
I am mindful of the fact that they do not include negative contingencies for
layoffs.

[105]     Finally,
the defence expert Dr. Paquette was helpful in ruling out any neurological
cause to the plaintiff’s condition. I agree he noted two disingenuous reactions
while conducting routine neurological tests on the plaintiff. Nevertheless,
that does not cause me to doubt the plaintiff’s symptoms are as he describes
them.

Causation

[106]    
The plaintiff must establish on a balance of probabilities that the
defendant’s negligence was both a factual and legal cause of his injures. Where
there are multiple potential causes for the plaintiff’s current condition – the
car accident and the two subsequent workplace incidents – there must be an
examination of whether the injuries are divisible or indivisible.

[107]    
The test for causation in fact is the “but for” test which asks “but
for” the defendant’s negligence, would the plaintiff’s injuries have occurred? Athey
v. Leonati, [1996] 3 S.C.R. 458, at paras. 13-17. Cause in fact
need not be determined by scientific precision and is best answered with
ordinary common sense: Athey, at para. 16.

[108]    
The plaintiff is not required to prove that the defendant’s negligence
was the sole cause of the injury. If other potential causes exist, the
plaintiff will still successfully establish cause in fact if he can prove a
substantial connection between the injury and the defendant’s conduct, beyond
the de minimus level: Farrant v. Laktin, 2011 BCCA 336, at para. 11.

[109]    
The characterization of injuries as divisible or indivisible is necessary
to ensure that the defendant is only held liable for those injuries caused by
his or her negligence: Athey at paras. 24-25. If an injury is
indivisible, subject to contributory negligence and to the plaintiff establishing
legal causation, the defendant is liable to the plaintiff for all damages
attributable to that injury regardless of the contribution of other causes: Athey,
at paras. 17-20.

[110]    
Indivisible injuries are those that cannot be separated or have
liability attributed to the constituent causes. By contrast, divisible injuries
are those capable of being separated out and having their damages assessed
independently: Bradley v. Groves, 2010 BCCA 361, at para. 20.
Whether damage is divisible or indivisible is a question of fact in each case: B.P.B.
v. M.M.B., 2009 BCCA 365, at para. 74.

[111]    
Establishing factual causation is necessary, but insufficient to
establish liability. The plaintiff must also show legal causation, insofar as
he or she must show the type or kind of injury they suffered was reasonably
foreseeable and not too remote from the factual cause: T.W.N.A. v. Canada
(Ministry of Indian Affairs), 2003 BCCA 670, at para. 17; Hussack
v. Chilliwack School District No. 33, 2011 BCCA 258, at para. 54.
The chain of causation will be broken where an intervening event, not the
defendant’s conduct, is the proximate or legal cause of the subsequent injury. It
is a question of fact: Hussack at para. 88. The law recognizes
that defendants should not be held liable for objectively unforeseen consequences
of their actions: Hussack, at para. 87. The principles of
novus actus interveniens holds that where an intervening act breaks the
chain of causation, the original wrongful act of the defendant can no longer be
regarded as a sufficient basis to impose liability: Yoshikawa v. Yu (1996),
21 B.C.L.R. (3d) 318 (C.A.), at para. 21.

[112]    
Where the intervening event is the plaintiff’s conduct, the question of
whether the chain of causation is broken depends on whether the plaintiff acted
unreasonably: Hussack at para. 82.

The Plaintiff’s Position on Causation

[113]     Counsel
says that given the aggravation associated with the two workplace incidents,
the appropriate question is: would the plaintiff’s disability be severe and
prolonged, but for the motor vehicle accident?  He answers the question in the
negative. The work duties at the glass factory were ones which the plaintiff
could do, regularly and with no difficulty, prior to the car accident. The
plaintiff points out that supporting up to 75 pounds was a job requirement of a
millwright. The aggravation resulting from the two workplace incidents are symptoms
of the plaintiff’s diminished physical capacity, not injuries on their own. In
any event, the injuries stemming from the workplace incidents are non-tortious
contributing causes that do not reduce the extent of the defendant’s liability.

The Defendant’s Position on Causation

[114]     The
defendant agrees that the plaintiff suffered soft tissue injuries to his lower
back and neck as a result of the accident. These injuries resulted in four
months of total disability from employment, then three to four months of
partial disability. In the defendant’s submission, these injuries resolved and the
plaintiff returned to full-time work as a millwright. The defendant accepts
that the plaintiff may have had some ongoing discomfort after this time and
that his employer may have made minimal accommodations, but maintains the
plaintiff was in fact doing his job largely as before. He was working full time
hours at full salary, had access to overtime and was hired back after the first
layoff. The defendant submits that the plaintiff’s subsequent physical labour
job as a glass fabricator indicates he had the capacity to work and had
substantially recovered from his injuries. The defendant also notes he was not
receiving any physiotherapy at that time.

[115]     The
defendant argues there is no way the defendant could have foreseen the
plaintiff being involved in a “substantial” workplace accident, being the First
Workplace Incident in November 2010, and thus the chain of causation was broken.
The defendant says the plaintiff told WorkSafe he had never had left leg pain
prior to the workplace injury and referred to this injury as “new damages” when
corresponding with Dr. Duchowska. The defendant maintains the First
Workplace Incident would have caused the plaintiff considerable injury in any
event, while acknowledging the Second Workplace Incident was a much more benign
event which only aggravated the injuries from the First Workplace Incident. In
the defendant’s submission these were new and intervening injuries and not mere
aggravations like those sustained after a May 2008 workplace incident at Ebco where
the plaintiff felt pain in his back when picking up a tool.

Conclusion on Causation

[116]     I conclude
the motor vehicle accident is the cause of the plaintiff’s injuries. The two
workplace incidents were not substantial as the defendant maintains. The First Workplace
Incident involved supporting a 75-pound weight, a weight well within the
plaintiff’s pre-accident capabilities as a millwright. In fact, if the
plaintiff had largely recovered from the motor vehicle accident, as the defence
urges me to conclude, he would have had no difficulty supporting that weight
without injuring himself. The evidence does not establish that the chain of
causation was broken. The injuries caused by the workplace incidents are
indivisible from the motor vehicle injuries.

Non-pecuniary Damages

[117]     The
purpose of non-pecuniary damages is to compensate the plaintiff for pain,
suffering, loss of enjoyment of life and loss of amenities. The compensation
awarded should be fair to all parties when examined against awards made in
comparable cases; however, each case depends on its own unique facts: Trites
v. Penner, 2010 BCSC 882 at paras. 188-189.

[118]     The
plaintiff seeks non-pecuniary damages in the range of $100,000 to $160,000
based on the following decisions:

·      
Morena v. Dhillon, 2014 BCSC 141 – a 47 year old woman
received an award of $130,000 for injuries including neck and back pain,
headaches, Post-Traumatic Stress Disorder and depression, chronic sleep
disturbance and heart palpitations caused by an accident that occurred when she
was in her early forties.

·      
Tsalamandris v. MacDonald, 2011 BCSC 1138; 2012 BCCA 239 –
the female plaintiff was injured in two accidents when she was in her early
forties. She suffered from chronic pain, mood changes and anxiety. The $100,000
award for non-pecuniary damages was not varied on appeal.

·      
Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2011 BCSC
762; 2012 BCCA 331 – the 26 year-old male plaintiff sustained injuries to his
neck, mid back and lower back with intense pain radiating to his legs. Non-pecuniary
damages were assessed at $160,000. All heads of damages were subject to a 40%
reduction to take into account measurable risk relating to the plaintiff’s
previous accident and degenerative condition. On appeal the reduction factor
was halved.

·      
Santi v. Pacific National Exhibition, 2000 BCSC 716 – the
female plaintiff was injured by falling objects at the PNE. She was in her mid
thirties. She developed chronic neck and left arm pain that evolved into a
severe and complex chronic neuropathic pain problem which has not responded to
treatment. The trial judge awarded her $150,000.

[119]     Counsel
for the defendant takes the position that the plaintiff should be assessed as
he was before the work accidents at Coast Wholesale Appliances and cites the
following cases to support a range of $40,000 to 50,000 for non-pecuniary
damages:

·      
Wong v. Robillo, 2013 BCSC 1104 – the plaintiff was
awarded $50,000 for chronic and intermittent low back pain.

·      
Sharfi v. Chaklader, 2012 BCSC 685 – the plaintiff
received $50,000 for musculoligamentous injuries to the cervical spine, upper
back and shoulders which exacerbated pre-existing migraines.

·      
Perry v. Vargas, 2012 BCSC 1925 – a plaintiff with a
variety of soft tissue injuries who was also affected by injuries from an
intervening event was awarded $40,000.

[120]    
The considerations which apply in assessing an award for non-pecuniary
damages are well known and were summarized in Stapley v. Hejslet, 2006
BCCA 34 as follows:

(a)      age of the plaintiff;

(b)      nature of the injury;

(c)      severity and duration
of pain;

(d)      disability;

(e)      emotional suffering;

(f)       loss or impairment
of life;

(g)      impairment of family,
marital and social relationships;

(h)      impairment of
physical and mental abilities;

(i)       loss of lifestyle;
and

(j)       the
plaintiff’s stoicism (as a factor that should not, generally speaking, penalize
the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163 (QL), 2005
BCCA 54).

[121]     Mr. Mandra
was 53 years of age when the accident occurred. He was transformed from a
happy, healthy and hardworking man to one who lives in constant chronic pain. His
lower, mid and upper back hurt on an ongoing basis. He has neck pain, headaches
and pain in his legs. He is nervous, forgetful, miserable and depressed. Treatment
and medication have not helped and there is no prognosis for improvement except
as described by Dr. Helper and only in relation to his lumbar pain. Compendiously
his pain is severe and chronic and disables him from the type of work he used
to do. He was formerly employed as a millwright, a heavy duty job, but now has
a hard time sitting or standing for prolonged periods and lacks the necessary
physicality to work as he once did. The injuries render him unemployable in his
past career as a millwright and only very marginally employable in lighter
occupations, particularly given his challenges with English. The injuries have
affected his social life and his relationship with his wife. He is not as
active as he once was. He has suffered psychologically.

[122]     Balancing
all these factors, I award the plaintiff $75,000 for non-pecuniary damages.

Past Wage Loss

[123]     Compensation
for past loss of earning capacity is to be based on what the plaintiff would
have, not could have, earned but for the injury that was sustained: Rowe v.
Bobell Express Ltd., 2005 BCCA 141 at para. 30; M.B. v. British
Columbia, 2003 SCC 53 at para. 49. It is not concerned with
hypotheticals regarding what the plaintiff could have earned. The plaintiff is
to be put back in the position he or she would have been in had the accident
not occurred: Lines v. W.D. Logging Co. Ltd., 2009 BCCA 106 at paras. 181-186.
The burden of proof relating to actual past events is on a balance of
probabilities. An assessment of loss of past and future earning capacity requires
the consideration of hypothetical events. The plaintiff is not required to
prove these hypothetical events on a balance of probabilities.

[124]     The
parties agreed Mr. Mandra’s wage loss from the time of the accident until
his return to light duties at Ebco was $22,352.24. He must repay $8,749.84 to
Sun Life, leaving $13,602.40 subject to tax. His tax rate in the applicable
period was 13% and thus his net wage loss from the time of the accident until
his return to light duties at Ebco is $20,583.93, inclusive of what he owes Sun
Life. The defence admits this wage loss.

[125]     The
plaintiff maintains his wage loss from the time of the accident to the time of
trial is between $332,768 and $236,782. Deducting 20% for negative
contingencies such as layoffs, the plaintiff puts his past wage loss between $189,426
to $266,214. Counsel points out these figures are based on Mr. Kelley’s minimum
estimates which Mr. Kelley opines are too conservative in light of the
plaintiff’s pre-injury performance, and in particular, his access to overtime.

[126]     The
defence maintains any wage loss the plaintiff suffered after he returned to
work following the accident is not as a result of the accident. He lost his job
at Ebco because of general layoffs due to a slowdown in work and not his injury.
He performed millwright work at Ebco after the accident, albeit on light
duties, and was recalled to work at one point. The defence maintains he would
not have been recalled after the layoff if he was not capable of doing the
millwright job.

[127]     When the
plaintiff did find a job, it was at a much lower rate of pay and he injured
himself in spite of the fact that the duties he performed were much less
physically onerous than the millwright job. I found his injuries from the
accident made him vulnerable to these workplace injuries.

[128]     But for
the injuries in the accident in 2008, it is more likely than not that at some
point after the layoffs and before trial the plaintiff would have attained work
again as a millwright. When that would have happened is difficult to predict
but I find that by mid-2012, two years before trial, it is more likely than not
that he would have secured employment as a millwright. The evidence is clear
that Mr. Mandra had a solid track record since he came to Canada of
finding relatively well paying employment fairly quickly after layoffs.

[129]     I award the
plaintiff $100,000 net of taxes for past wage loss from mid-2012 to the time of
trial. That figure is based on what he would likely have earned as a
millwright, taking into account the average of Mr. Kelley’s 2013 figures for
a millwright ($72,372) but allowing for negative contingencies for short periods
of layoff and a lack of access to overtime at the same level he received it at
Ebco.

Loss of Future Earning Capacity

[130]     A claim
for loss of future earning capacity engages two key questions:

1)       has the
plaintiff’s earning capacity been impaired by his or her injuries; and, if so

2)       what
compensation should be awarded for the resulting financial harm that will
accrue over time?

[131]     The
assessment of damages is a matter of judgment, not calculation: Rosvold v.
Dunlop, 2001 BCCA 1 at para. 18. The appropriate means of assessment
will vary from case to case: Brown v. Golaiy (1985), 26 B.C.L.R. (3d)
353 (S.C.); Pallos v. Insurance Corp. of British Columbia (1995), 100
B.C.L.R. (2d) 260 (C.A.); Pett v. Pett, 2009 BCCA 232.

[132]     Insofar as
possible, the plaintiff should be put in the position he or she would have been
in if not for the injuries caused by the defendant’s negligence: Lines v. W
& D Logging Co. Ltd., 2009 BCCA 106 at para. 185. The essential
task of the Court is to compare the likely future of the plaintiff’s working
life if the accident had not happened with the plaintiff’s likely future
working life after the accident: Gregory v. Insurance Corp. of British
Columbia, 2011 BCCA 144 at para. 32.

[133]     There are
two possible approaches to assessment of loss of future earning capacity: the
“earnings approach” adopted from Pallos, and the “capital asset
approach” employed in Brown. The “earnings approach” will generally be
more useful when the loss is easily measurable: Perren v. Lalari, 2010
BCCA 140 at para. 32. The “capital asset” approach is more appropriate
where the loss, while proven, “is not measurable in a pecuniary way”: Perren
at para. 12.

[134]     The
evidence is clear that in order to work as a millwright, one must have a good
back. Mr. Power stated if the plaintiff still had a good back he would
have no difficulty finding work either at Ebco or elsewhere in the industry. Mr. Power
would not hire the plaintiff as a millwright nor did he think anyone else in
the industry would hire him.

[135]     Derek
Nordin considers Mr. Mandra’s chances of finding work as a millwright,
mechanic or machine operator as virtually non-existent. Mr. Mandra has
limited English fluency, chronic discomfort and limited physical scope, all of
which render him virtually unemployable.

[136]     Finally, Ms. Allende
found as early as December 2009, before the workplace incidents, that the
plaintiff could not perform as a millwright.

[137]     The
plaintiff submits, relying on the reports of Mr. Nordin and William
Kelley, that his loss of future earning capacity should be valued at between
$579,129 and $619,110 before tax. The amount is dependent upon whether Mr. Kelley’s
higher or lower prediction for millwright wages is taken into account. Counsel
maintains that with a 13% reduction for tax and a 20% negative contingency, the
net present value of the future impairment of capacity is between $403,073.78
and $430,900.56.

[138]     The
defendant submits there should be no award for loss of future capacity as the
plaintiff was able to return to his job at Ebco following the accident and thus
did not lose any further income as a millwright, per Mayenburg v. Lu, 2009
BCSC 1308. The plaintiff in that case was able to return to work with some
minor accommodations from her employer and some discomfort and received no
award for diminished earning capacity as there was no evidence of a substantial
possibility of a future loss.

[139]     Mr. Mandra
did return to work as a millwright on light duties; however, I find that his
boss and his co-workers were aware of his physical limitations and assisted
him. They supported him out of loyalty. Had there been no shutdown at Ebco in
2009, it is more likely than not that the plaintiff could not have continued to
work fulltime as a millwright, even on light duties, because of the accident. The
light duties job took a physical toll on him, according to his evidence and to
the evidence of his boss and co-workers. He hurt himself in May 2009 when
picking up a tool and he injured himself at a lighter duty job he held
subsequent to his employment at Ebco, further substantiating that his career as
a millwright was over.

[140]     In the alternative,
the defendant submits that if there is a real and substantial possibility that
the plaintiff suffered a loss of capacity, the loss of a capital asset approach
should be taken to assess the loss. The defendant cites Midgley v. Nguyen,
2013 BCSC 693, where the plaintiff worked in a well-paying position at a
company where considerable layoffs occurred after the plaintiff’s accident. The
trial judge determined there was a real and substantial possibility that the
plaintiff would have been laid off after the accident and would have found
alternate employment, though at a lower wage, and thus his future prospects for
attracting and holding employment had been diminished.

[141]     The
defendant also submits the fact that the plaintiff found work after being laid
off (albeit at a reduced wage) should affect any award. Similarly, the
defendant submits the fact that Ms. Allende thought he was employable
after the accident but before the First Workplace Incident should affect any
award. Given those negative contingencies, the defendant suggests an award in
the range of $10,000 – $20,000 to reflect the fact that the plaintiff was only
slightly less valuable after the accident, although he may have perceived
himself as much less valuable.

[142]     I do not
agree the capital asset approach should be taken to assess the plaintiff’s loss.
The earnings approach is better suited to this case because the plaintiff’s
earnings as a millwright are readily ascertainable. However, the industry in
which the plaintiff worked was nearly as susceptible to periodic layoffs as it
is to overtime pay and I will approach Mr. Kelley’s calculations of likely
wage streams with care as they appear to insufficiently account for the
possibility of layoffs.

[143]     I find the
plaintiff would likely have retired at 66, not 70 as he stated in evidence. His
wife is three years older and would have retired by the time he turned 65 and
this in turn would likely have affected his plan to work to 70.

[144]     Taking
into account the high end of the figures advanced by Mr. Kelley with
virtually no negative contingencies factored in, the negative contingencies of
layoffs, and the possibility the plaintiff can find part time work that might
generate some earnings, I find a fair and reasonable award for loss of capacity
from the time of trial to his likely retirement at age 66 to be $200,000, net
of taxes.

Special Damages

[145]     The
defendant agrees many of the plaintiff’s special damages were reasonably
incurred up until the First Workplace Incident in November 2010, but maintains the
plaintiff should receive nothing thereafter for physiotherapy or other items
because the chain of causation was broken. Given that I found the plaintiff would
not have been injured at work in 2010 and 2011 but for the car accident, I
award him the full amount claimed for services to the date of trial. I agree
with the defendant, however, that the plaintiff’s expenditures related to
moving services, the Ergotron keyboard, the Ergocentric chair and the Teeter
chair are not covered as there is no medical evidence to justify them. Accordingly,
I deduct those items and award the plaintiff $14,746.23.

Cost of Future Care

[146]     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 (S.C.) at 78; Gignac v. Rozylo,
2012 BCCA 351 at paras. 29-30.

[147]     In order
to make an award of future care: (1) there must be a medical justification for
claims for cost of future care and (2) the claims must be reasonable: Milina
v. Bartsch at 84; Tsalamandris v. McLeod, 2012 BCCA 239 at paras. 62-63.
The analysis is an objective one but it is not an exercise in accounting.

[148]     The
plaintiff relies on the cost of care report prepared by Ms. Allende in
2014 and seeks the cost of Botox injections, pulsed electromagnetic field
therapy, psychology, physiotherapy, pain management programs and a more
comfortable mattress. Ms. Allende reviewed records related to the
plaintiff’s treatment to estimate the cost of future care. She did not
prescribe any treatment or equipment as that is largely outside the scope of
her expertise.

[149]     I find
there is no evidence that the Botox injections will be of any assistance to the
plaintiff. The notes of the doctor who prescribed them, Dr. Robinson, do
not support a conclusion that he thought they would be of any benefit to the
plaintiff.

[150]     The pulsed
electromagnetic field therapy is only offered by Dr. Hershler and I find
the evidence about its possible utility to be speculative.

[151]     The costs
for decompression therapy and a decompression table are not supported by the
evidence. Similarly, there is no evidence a different mattress will help the
plaintiff.

[152]     I decline
to award an amount for orthotics as I cannot find they are related to the
accident. I decline to award anything for cannabis cream as this falls more
into the category of novel research and there is little evidence it will
provide assistance to the plaintiff.

[153]     There is
evidence that the plaintiff would benefit from targeted physiotherapy. Dr. Helper
was of the view that the plaintiff may have some relief from his gluteus
tendinopathy through treatment at either of two specialized clinics in the
Lower Mainland. The cost of the treatment ranges from $2,000 to $6,000. I award
$5,000 for physiotherapy.

[154]     The
plaintiff initially claimed an award for housekeeping but has abandoned that
claim and reframed it as one aimed at the cost of home maintenance the
plaintiff is no longer able to do. The Mandras now live in a condominium
complex with no garden requiring upkeep and work. However, I find the plaintiff
was previously able to complete small home maintenance jobs before the
accident. His inability to perform these tasks, such as plumbing, electrical or
painting which require squatting, twisting or assuming other awkward body positions
merit a modest award. The plaintiff can no longer do those kinds of jobs
without incurring significant pain and discomfort. I award $1,500 to cover the
cost of maintenance jobs the plaintiff will not be able to do.

[155]     Finally, the
plaintiff requires prescription medication for pain management and depression and
is entitled to an award for that cost. I assess that amount at $25,000.

Summary

[156]    
Unless there are matters of which I am unaware, the plaintiff is
entitled to his costs at Scale B. If the parties wish to speak to costs or
other matters before me they must make arrangements to do so with Trial
Scheduling within 30 days.

“Duncan J.”

_______________________________________

The
Honourable Madam Justice Duncan