IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141222

Docket: M142757

Registry:
New Westminster

Between:

Mohan Singh Sahota

Plaintiff

And:

Paramjit Kaur
Choongh and Kulwinder Singh Sohi

Defendants

Before:
The Honourable Mr. Justice Verhoeven

Reasons for Judgment

I.                
Introduction

[1]            
The plaintiff Mr. Mohan Singh Sahota claims damages arising out of
personal injuries he sustained in a motor vehicle accident that occurred on August
24, 2010 on the Alex Fraser Bridge in Delta, British Columbia.  The defendants
admit liability for the accident.

[2]            
Mr. Sahota was 49 years of age when the accident occurred.  He is
now 53.  He was born in India.  He immigrated to Canada in 1987.  He is married
and has four children whose ages range from 9 to 16.  Since 1992 he has been a
production worker at Richmond Plywood Corporation Limited (“Richmond Plywood”),
a plywood manufacturer located in Richmond, B.C.  He continues to work there,
primarily as a composer operator, which means that he operates a piece of
machinery called a composer used in the plywood manufacturing process.

[3]            
At trial, more than four years after the accident, Mr. Sahota’s major
ongoing complaints are of low back pain and sciatica (pain radiating to his
left leg).

[4]            
The defendants contend that his complaints of ongoing back pain and
sciatica are unrelated to the accident.  The defendants also argue that Mr. Sahota
is untruthful or at least exaggerates his injuries and their effects.  The defendants
argue that at most Mr. Sahota suffered mild soft tissue injuries.

II.              
Background Facts

A.             
The Accident

[5]            
On August 24, 2010 Mr. Sahota was a front seat passenger in a 2008
Lexus GX470 SUV vehicle owned and driven by the defendant Kulwinder Singh Sohi
when the Lexus was struck from the rear by a 2001 Acura TL sedan owned and
driven by the defendant Paramjit Kaur Choongh.  There was minor damage to the
rear of the large, heavy Lexus SUV.  There was extensive damage to the front of
the Acura, the front of which appears to have plowed under the rear of the Lexus. 
The Acura was considered a total loss by ICBC based upon estimated repair costs
of $10,478.

[6]            
At the time of the accident Mr. Sahota was returning to his home in
Surrey, B.C. from his work at Richmond Plywood.  There were four co-workers in Mr. Sohi’s
vehicle, including Mr. Sohi.  The accident occurred at about 3:15 p.m. 
The workers had just come off shift at the plywood plant at 3:00 p.m.  Mr. Sahota
says that he was dozing on and off, but recalls that the vehicle was stopping
and starting in the heavy, congested traffic, and that it was stopped at the
time of the collision. He felt a jolt and heard a loud bang.  The collision was
severe enough to cause his turban to come off.  Ambulance personnel attended. 
He was taken by ambulance to Surrey Memorial Hospital, where he was treated for
neck and back strain and discharged after a few hours.

B.             
Course of Treatment

[7]            
Mr. Sahota saw his family doctor, Dr. Jagtar S. Rai, the next
day.  He was complaining of neck pain, right shoulder pain, and lower back
pain.  Dr. Rai diagnosed soft tissue injuries to his neck, lower back and
right shoulder.  Dr. Rai prescribed medications for pain relief.  His
lower back continued to trouble him and in late September 2010 Dr. Rai
referred him for chiropractic therapy with Dr. J.S. Basra, who he saw on
September 29, 2010 and on approximately another 12 occasions thereafter until mid-November
2010.  He returned to see Dr. Basra again for three more visits in the
latter half of 2011.

[8]            
Dr. Rai reports that in late 2010 Mr. Sahota was suffering
from pain radiating from his lower back into his right buttock and right leg.

[9]            
Dr. Rai referred Mr. Sahota to an orthopaedic surgeon, Dr. Shahid,
in relation to his persistent low back pain.  Dr. Shahid saw him November
12, 2010.  Dr. Shahid reported to Dr. Rai that the patient had a soft
tissue injury to his lower back. Dr. Shahid recommended active
rehabilitation with KARP.  Mr. Sahota began physiotherapy with KARP on
January 6, 2011 and continued receiving treatment there until February 14,
2011, for a total of 27 sessions.

[10]        
Mr. Sahota did not return to work until February 28, 2011, about
six months post-accident, when he began a graduated return to work.  He was
back at work full time after two weeks.

[11]        
Dr. Rai reports that by June 2011 the pain was radiating to his
left leg, and that on July 25, 2011 Mr. Sahota reported so much pain that he
could not work anymore.  According to Dr. Rai, lower back and radiating
pain in his left leg worsened steadily, and in November 2011 Dr. Rai
recommended more time away from work.

[12]        
An MRI of his lumbar spine on March 4, 2011 showed a lower back (L5-S1)
disc protrusion mildly displacing the S1 nerve root on the left side.  According
to Dr. Rai, the condition shown on the MRI probably gives rise to the
lower back pain radiating to the left leg.

[13]        
Mr. Sahota was off work again for another period of about six
months from November 6, 2011 to May 12, 2012.  At that time he returned to work
at Richmond Plywood.  He has continued to work full time since then, although Mr. Sahota
says that the work causes pain, and he is not sure how for how long he will be
able to tolerate the pain.

[14]        
During Mr. Sahota’s second period off work, Dr. Rai referred
him to the Pain Clinic at Surrey Memorial Hospital, where he was seen by Dr. A.I.
MacInnes. Dr. MacInnes administered epidural steroidal injections on three
occasions between January and March 2012, and a further three occasions in
January, March and June 2013.  There are no clinical records of steroidal
injections in 2014, but Mr. Sahota testified that he had another two injections
in July or August 2014.

[15]        
While in India in April 2013 Mr. Sahota had another MRI.  The
Indian MRI also showed a disc protrusion in the lumbar spine.  In general the
results of the April 2013 MRI were similar to the earlier MRI of March 2011.

[16]        
Mr. Sahota benefits significantly from the steroidal injections. 
However the benefits diminish after four to five months.  He continues to take
prescribed pain relief medication twice a day, and also uses Tylenol No. 3
for pain relief as needed.

C.             
Pre-Accident Condition of the Plaintiff

[17]        
Mr. Sahota was generally in good health prior to the accident, and
had not suffered from low back pain or problems.

[18]        
He was involved in motor vehicle collisions in 1993 and 1999.  In 1993
he was off work for two months due to injuries, including a shoulder injury.  In
1999 he was injured, as he put it (through translation from Punjabi, his native
language) “quite badly”.  He injured his neck, shoulders, right arm, right
elbow, and right hip. He was away from work for over four months.  He also had
an unspecified work injury in 2006.  Some time away from work was required.  In
August 2009 he sprained his upper back while engaged in some activity at the
Sikh temple he attends.  He saw Dr. Rai, and saw Dr. Basra, the
chiropractor, for treatment on three occasions, all in November 2009.  In his
evidence at trial Dr. Rai referred to this as a mild upper back sprain.  It
is clear that his 2009 injury was to the upper back, and that it resolved
within a week or two.

[19]        
Mr. Sahota denied any prior injury to his low back.

[20]        
Dr. Rai has treated Mr. Sahota since 1992, or 1993.  Dr. Rai
stated that pre-accident Mr. Sahota was a relatively healthy person with
no significant problems.  This supports the evidence of Mr. Sahota that
pre-accident he was generally healthy and, in particular, that he had no prior
low back problems.

[21]        
I find that Mr. Sahota was generally healthy pre-accident, and
there is no basis to find a measurable risk or probability that his persisting
low back and left leg problems would have occurred but for the accident
injuries.

D.             
Extent of Injuries Sustained and Prognosis

[22]        
Dr. Rai’s summary as set out in his report of July 11, 2012 is
generally very fair and accurate:

In summary, Mr. Sahota is a 51 year old man who works in
Richmond Plywood mill. He was involved in a motor vehicle accident on August
24, 2010. Initially it was thought that he had suffered soft tissue injuries to
his neck, lower back and the right shoulder. After a couple of months or so,
his neck and the right shoulder injuries significantly resolved, but his lower
back kept bothering him. Initially pain seemed to be radiating to the right leg
but by the end of year 2010, the pain was radiating to the left leg. By the end
of the year 2011, the left calf muscles became wasted due to chronic pain and
disuse of the left leg. After the accident and rehabilitation at the KARP
rehabilitation, he went back to work at the end of February 2011. But by the
beginning of November 2011, the symptoms of the lower back pain radiating to
the left leg became worse and he had to stop working. Eventually, his symptoms
improved with medication and two Cortisone injections in the back. He was able
to return to work on May 07, 2012. It is hoped that he will be able to keep
working and his symptoms will improve further. But it is also possible that his
symptoms may get worse again and he may have to take time off work again and
possibly need further injections of Cortisone in his back.

Mr. Sahota has been my
patient since 1993. He had a couple of motor vehicle accidents in 1993 and 1997
and hurt his back that was bothering him for several months. In or around 2008,
Mr. Sahota sustained some work related injuries possibly to his back but I
was not his attending physician for those injuries. So, I don’t have the exact
details of those injuries.

[23]        
The situation is not much changed at trial, in September 2014, just over
two years from the date of Dr. Rai’s report.

[24]        
The most significant specific medical issue raised by the defendants has
to do with causation of Mr. Sahota’s continuing complaints of lower back
and left leg pain.  The defendants contend that the ongoing injuries are
unrelated to the accident.  The principal argument of the defendants is that
the onset of the pain radiation into Mr. Sahota’s left leg did not occur
until as much as ten months post-accident.

[25]        
For this reason at trial there was much evidence concerning the course
of Mr. Sahota’s post-accident treatment, and the details of the clinical
records in this respect.

[26]        
The plaintiff saw a number of specialists for medical legal
examinations.

[27]        
He saw Dr. Rubin Feldman, a specialist in physical medicine and
rehabilitation, on January 3, 2013.  Dr. Feldman testified at trial.

[28]        
Dr. Feldman’s opinion is that there is no doubt that the accident
precipitated the clinical picture he saw.  He recommended continuation of the
epidural injections as long as they continue to provide Mr. Sahota with
good results.  Surgery (a discectomy at L5-S1) is a possibility.  However Dr. Feldman
stated that he would not recommend surgery unless Mr. Sahota reaches a
point where he is unable to function.

[29]        
Dr. Daniel Gouws is a medical doctor with a special interest and
expertise in occupational health.  He saw Mr. Sahota on November 5, 2013.  He
testified at trial.

[30]        
Dr. Gouws took a very careful history, with the assistance of an
interpreter, and carefully reviewed the clinical records.  He also had Dr. Feldman’s
report.

[31]        
Dr. Gouws’ opinion is that Mr. Sahota’s complaints, including
the left-sided sciatica, were caused by the accident injuries.  He opined that Mr. Sahota
suffers from chronic discogenic low back pain with left sided sciatica.  His
condition results in ongoing limitations for sustained sitting and standing,
sustained crouching, stooping and reaching, and activities that require
sustained handling activities at lower levels.  Dr. Gouws is also of the
opinion that Mr. Sahota can work full time at light duties, but he will
continue to experience chronic pain.  He agrees with Dr. Feldman that Mr. Sahota
could potentially require surgery.  He believes that maximum physical
rehabilitation has not yet been reached.  He noted the benefits Mr. Sahota
had from the KARP treatment in early 2011, and recommends regular ongoing
exercise under the supervision of a kinesiologist familiar with managing
individuals with chronic pain and back problems.

[32]        
Mr. Sahota saw Dr. Navraj Heran, a neurosurgeon, on March 19,
2014.  Although an interpreter was present, he was not much needed as Dr. Heran
speaks Punjabi. Dr. Heran thoroughly reviewed the available medical
records and reports, and conducted a thorough interview and physical
examination.

[33]        
Dr. Heran provided an accurate summary of Mr. Sahota’s
post-accident condition, which is in my view supported by the evidence tendered
at trial. Dr. Heran’s summary is as follows:

Mr. Sahota is an individual
who was involved in a motor vehicle accident on August 24, 2010 where he
sustained injuries to his neck towards his right shoulder, radiation into his
right arm, his spinal axis from neck down to his lumbosacral level. He has had resolution
in all the areas of symptoms except for the low back. In this low back he
developed right leg radiating pain initially followed several months later by
left leg radiating pain. He has had persistent left leg radiating symptoms. He
has imaging documentation of left sided S1 radiculopathy from an L5-S1 disc
herniation with clinical features of root tension sign positivity, reduction in
sensation or hypersensitivity and reduction in calf bulk on my assessment. This
has been confirmed by other practitioners. He has obtained significant
improvement following epidural steroid injections and selective left sided S1
nerve root block. He has not become symptom free. He has been able to work as of
recently with two periods of time where he was off work, one as a consequence
of the motor vehicle accident initially, the second as a consequence of the
left leg radiating pain developing. His persistent pain in the low back and
left leg with the latter being dominant, affects his activities of daily living
as well as vocational functioning and recreational activities.

[34]        
Dr. Heran’s opinion is that due to the accident, Mr. Sahota
suffers from ongoing discogenic low back pain, and left sided S1 radiculopathy
from a left sided L5-S1 disc herniation.  He also suffered three conditions
from which he had recovered: (1) myofascial pain involving his neck, thoracic
and lumbar spine; (2) right sided shoulder pain radiating into his right arm,
considered to be soft tissue/myofascial in nature; and (3) right leg radiating
pain.  In his opinion there were no pre- or post-accident factors which
influenced the diagnosis.

[35]        
As to prognosis, Dr. Heran’s opinion is that Mr. Sahota
continues to suffer from discogenic low back pain and left sided S1
radiculopathy which has not yet plateaued.  He states that with or without
surgery, the natural history of disc herniations is that of improvement, with
90% of them becoming better or resolving completely. He supports continuation
of the steroid injections.  If those treatments no longer provide relief and if
Mr. Sahota continues to suffer from his condition, then surgery is a
possibility, “at some point.”  He cautions that “there is no rush in doing so
at present”.  He adds, “As long as Mr. Sahota is able to work and
function, no surgery is warranted or recommended.”  However Mr. Sahota
would not likely see full resolution of his pain in the near future.  Dr. Heran
states, “Mr. Sahota’s clinical course will be protracted for many years to
follow prior to him obtaining full resolution.”  Aside from the injection
therapy, he recommends self-directed stretching and exercise programs.  In his
opinion Mr. Sahota is precluded from heavy physical duties.

[36]        
In summary, in my view there is broad general consensus among these
doctors as to the nature of Mr. Sahota’s accident injuries, including
causation, and prognosis.

[37]        
The defendants rely on the opinion of Dr. Paul B. Bishop, a medical
doctor with a special interest and expertise in spinal injuries and back pain. 
He saw Mr. Sahota on January 10, 2012.  He provided a report to ICBC for
the purpose of assessing Mr. Sahota’s need for continued accident
benefits.  His diagnosis is fundamentally similar to that of the other doctors,
in that he diagnosed (1) mechanical low back pain with a discogenic component,
and (2) left buttock and left lower leg symptoms consistent with an S1
radiculopathy.  However, as to causation, Dr. Bishop opines the accident
injuries account only for mechanical lower back pain without a discogenic
component, which would have had an acute phase of 12 to 16 weeks
post-accident.  In his opinion Mr. Sahota’s ongoing complaints are not
“directly” related to the accident injuries.  This opinion rests largely upon
his assessment that “the clinical records indicate that these symptoms [i.e.
low back, left buttock, and left leg] did not begin until at least four months
following the motor vehicle accident.”  However in his testimony at trial he
did not rule out the possibility of “indirect” causation.  According to Dr. Bishop,
the disc herniation and ongoing lower back and left leg complaints that Mr. Sahota
suffers from could have arisen spontaneously, that is, in a manner unrelated to
the accident injuries.

[38]        
Dr. Bishop was of the view that Mr. Sahota could benefit from
S1 nerve root block and steroid injection therapy, or surgical treatment.  Dr. Bishop
was proven correct about the potential benefits to Mr. Sahota of steroid
injection therapy, which Mr. Sahota began receiving shortly after seeing Dr. Bishop. 
There is general agreement among the doctors that surgery is a possibility.  Dr. Bishop
did not elaborate upon the chances of surgery being required.

[39]        
Dr. Bishop recently provided an addendum report (dated June 9,
2014) in which he maintained his opinion about causation, notwithstanding the
contrary subsequent opinions of Dr. Feldman and Dr. Heran to which he
was referred.

[40]        
Dr. Gouws and Dr. Heran provided recent rebuttal reports to
that of Dr. Bishop.  Both disagree that Mr. Sahota’s back and left
leg complaints are not caused by the accident, and both confirmed their opinions
as set out in their original reports.

[41]        
On the basis of all of the evidence, I have no difficulty in finding
that Mr. Sahota’s current complaints of chronic low back pain and left leg
pain are caused by the accident, on the applicable “but for” basis of causation.
I accept the opinions of Dr. Rai, Dr. Feldman, Dr. Gouws, and Dr. Heran
to this effect.  While there may arguably be a possibility that the current
complaints are unrelated as Dr. Bishop contends, on a balance of probabilities,
in my view it is much more likely that the injuries were indeed caused by the
accident.

[42]        
It is clear that Mr. Sahota was complaining of low back pain, among
other complaints, immediately after the accident, and continuously since then.  As
previously noted, Mr. Sahota complained of low back pain when he saw Dr. Rai
for the first time post-accident, on August 25, 2010, the day after the
accident.

[43]        
The chiropractor Dr. Basra noted palpatory tenderness in the lumbar
spine, on both right and left sides, and limitations on straight leg raising on
both the left and right when he first saw Mr. Sahota on September 28,
2010.  He noted pain and limitation of range of motion in all parts of his
spine.  Mr. Sahota complained of tightness and tingling into his left
buttock and upper left leg.  He complained that his condition was worsening and
interfered with his work (he was off work) as well as sleep, general family
life, and problems with prolonged sitting or standing.

[44]        
The cryptic chiropractic records were the subject of differing
interpretations by the doctors.  Dr. Heran was of the view that Dr. Basra’s
straight leg raising (SRL) test results of September 28, 2010 showed some
indication of nerve root problems in the lumbar spine, relative to both legs. Dr. Gouws
also thought the test results were significant in that they showed discrepancy
as between SRL on the left and right, with the left being more restricted.  On
the other hand, Dr. Bishop was of the view that the chiropractic records
did not provide evidence of nerve root tension in the lumbar spine.

[45]        
In this respect I prefer the opinion of Dr. Heran, who is a
neurosurgeon.

[46]        
None of the doctors other than Dr. Bishop were particularly
troubled by the apparent transition in sciatic pain from the right to the left
legs.  Dr. Heran notes that the apparent worsening of Mr. Sahota’s
low back symptoms is incongruent with the clinical course suggested by Dr. Bishop. 
I agree with that comment.

[47]        
The simple fact is that Mr. Sahota had low back pain immediately after
the accident, which worsened over time.  The radiating pain was first manifest
on the right, then on the left.  This did not seem insensible to the experts
other than Dr. Bishop, and does not seem insensible to me.  In my view, Dr. Bishop’s
fundamental point that Mr. Sahota’s condition is independent and unrelated
is inherently unlikely, in a man with no significant prior low back problems,
and in all the circumstances.

[48]        
I accept the opinions of Drs. Rai, Feldman, Gouws, and Heran in
preference to that of Dr. Bishop in relation to the causation issue.  I
find therefore that all of Mr. Sahota’s present low back and left leg pain
complaints were caused by the injuries he sustained in the accident.

[49]        
The defendants argue that Mr. Sahota is not believable about his
left leg pain.  They go so far as to argue that Mr. Sahota started
complaining about left leg pain rather than right leg pain only after he became
aware of the MRI results of March 4, 2011, which showed a disc protrusion on
the left side.  The defendants argue that Mr. Sahota altered his
complaints to fit the medical information.  I reject this suggestion, which I
consider implausible in the extreme and completely at odds with the evidence.  Dr. Rai
noticed left leg weakness and muscle wasting in the left leg on December 7,
2011.  Dr. Heran found the same. Mr. Sahota has been persistently and
credibly complaining of left leg problems for years.  I reject the contention
that all of this is malingering.

[50]        
 As noted, there is no fundamental disagreement between any of the
doctors as to Mr. Sahota’s current condition, prognosis, and treatment
options.

[51]        
I consider Mr. Sahota’s physical complaints to be credible.  Unlike
the many cases involving chronic pain where the list of complaints seems only
to grow over time, and where improvement in conditions tends to be minimized, Mr. Sahota
states plainly that his right leg problems and his upper torso and right arm
problems completely resolved following treatment at KARP rehabilitation in
January and February 2011, or in other words within about six months
post-accident.

[52]        
Mr. Sahota states that the epidural injections provide substantial
pain relief (50% to 80% improvement) for four to five months.  The epidural
injections take only about half an hour, but cause pain which lasts for three
to four days.  He loses two or three days from work as a result.  I am
confident that Mr. Sahota would not endure these repeated and unpleasant
treatments if they were not worth the benefit he says they provide.  He
functions with the aid of a substantial intake of medications, which once again
I am confident he would not consume if there was no real need.

[53]        
Mr. Sahota is coping, by use of repeated epidural injections of
cortisone, and by limiting his activities.  He regularly takes prescribed pain
medications, twice daily, once in the morning and once in the evening.  He also
takes Tylenol No. 3 as needed for pain control.

[54]        
None of the doctors expressed any major concern with the credibility of
his physical complaints.  Dr. Heran noted that Waddell’s signs were
negative.

[55]        
However Dr. Gouws noted a tendency of Mr. Sahota to overstate
his degree of disability and to “catastrophize” his pain.  That is, to ruminate
and to experience thoughts and feelings of magnification and helplessness.  He
experiences a high degree of fear of pain and re-injury.  In my view these
tendencies do not detract from the credibility of his physical complaints,
although they are relevant to the assessment of his loss.

[56]        
In summary: Mr. Sahota suffered from neck, upper back, mid back and
right shoulder and right arm problems which completely resolved within six
months of the accident.  He had right sided radiating pain into his right leg
which has resolved.  However he is left with chronic pain and dysfunction in
his lower back and left leg which is quite severe and is significantly limiting
his functioning.  This condition is managed to a good degree by repeated steroid
injection therapy and the use of pain relieving medications.

[57]        
However, I accept the opinions of Dr. Heran and Dr. Gouws that
his condition has not yet plateaued.  There is a good probability that his
condition will significantly improve, even without surgery, and especially if
he participates in a regular program of exercise.

[58]        
The disc protrusion in his lumbar spine is described in the evidence as
mild in degree.  A disc protrusion is something more than a disc bulge, but
less than a disc herniation, as Dr. Rai confirmed in his evidence.  The
disc protrusion was most likely caused by the accident, or at least, the
accident injuries caused the disc protrusion to become symptomatic.  The disc
protrusion is likely related to his ongoing problems.

[59]        
The reports of Drs. Gouws, Heran, Bishop and Feldman are all in agreement
that Mr. Sahota would benefit from exercise.  Dr. Rai’s opinion at
trial was to the same effect.  Mr. Sahota’s exercise efforts to date have
been limited.  As he reported to Dr. Gouws, he walks 30 to 45 minutes per
day.  Thus, there is a good possibility that participation in a more extensive
program of exercise would be beneficial for Mr. Sahota.

[60]        
There is a small probability however that his symptoms will worsen with
time and that he may require surgery.  Timing of this is unknown.

III.            
Analysis – Quantum of Damages

A.             
Assessment of the Evidence

[61]        
As I stated in Carter v. Zahn, 2012 BCSC 595:

[57]      The plaintiff has the burden of establishing that
she was injured in the accident, and the extent of her injuries, on a balance
of probabilities: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 [McDougall],
at para. 44; and Cahoon v. Brideaux, 2010 BCCA 228, [Cahoon]
at para. 82.

[62]      In such circumstances, I must be mindful of the
words of caution expressed by McEachern C.J.S.C., as he then was, in Price
v. Kostryba, 70 B.C.L.R. 397 at 399, [1982] B.C.J. No. 1518 (S.C.) [Price],
which have been applied many times since (for example, see Edmondson v.
Payer, 2012 BCCA 114, [2012] B.C.J. No. 462, at para. 2):

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

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

[63]      As I read the decision, although McEachern C.J.S.C.
uses the phrase “convincing evidence”, he is not saying anything inconsistent
with the decision in McDougall, which held that there is only one
standard of proof in civil cases, and that is proof on a balance of
probabilities (at para. 49).  This is made clear by the comments in the
next paragraph in Price, wherein McEachern C.J.S.C. states at 399:

 … In short, the
evidence does not satisfy me to the extent required in a civil action that the
defendants should be liable for the plaintiff’s complaints beyond the end of
January 1980.

[64]      The comments of Rothstein J. at para. 49 of McDougall,
are to similar effect:

 … In all civil cases,
the trial judge must scrutinize the relevant evidence with care to determine
whether it is more likely than not that an alleged event occurred.

[65]      Accordingly, in this
case the credibility of the plaintiff in relation to her complaints of injury
is central to my decision.  Her contentions must be assessed in light of all of
the circumstances of the case, including of course, the medical evidence: Tai
v. De Busscher, 2007 BCCA 371, at para. 41.

[62]        
As noted, the defendants argue that Mr. Sahota is not a credible
witness and that I should disbelieve much of his testimony, including his
evidence as to the degree of injury and the consequences of his injuries.  The defendants
argue that based upon his lack of credibility, the current symptoms should be
found to be unrelated to the accident.  I have already found against the defendants
on the causation issue.  I consider Mr. Sahota’s description of his
physical complaints to be quite credible.

[63]        
However I am less confident about the plaintiff’s testimony concerning
the effects of the injuries.  There are indications in the evidence of a
tendency to exaggerate their effect, which calls for appropriate caution on my
part in assessing this evidence.  These concerns arise primarily in relation to
Mr. Sahota’s description of his work.

[64]        
In his work as a composer operator, Mr. Sahota feeds sheets of weak
or damaged wood veneer into the composer machine in order to render the product
usable for plywood.  The process uses spools of string with glue, also referred
to as string tape or sticky string in the evidence.

[65]        
At trial his testimony in chief was generally to the effect that his
work is quite physically demanding.  However, I prefer the evidence of Mr. Amrit
Brar, Richmond Plywood’s Occupational Health and Safety Officer.  Mr. Brar
struck me as a reliable, unbiased and accurate witness.  Mr. Sahota’s work
as a composer operator is boring and repetitive, but the physical demands are
light.  Mr. Sahota handles thin veneer sheets rather than full plywood
sheets.  He is able to sit on a stool to the extent he wishes to do so.  He
also has to do some clean-up work at the end of each shift.  The clean-up work
is not heavy.

[66]        
At trial Mr. Sahota testified about green chain work (sorting and
stacking of veneer sheets) that he has to do when he is not working as a
composer operator.  He testified that this work was heavier than his usual
work.  He testified that he works on the green chain for one to two days per
week.  However, I find that his green chain work is not as frequent as he
stated.  He never mentioned this work to the doctors he saw, including most
notably Dr. Gouws, who thoroughly canvassed the nature of his work with
him.  Mr. Brar thought the frequency of his green chain work was more like
three to five shifts in a month.  In any event Mr. Brar testified that the
green chain work is only slightly heavier than his regular work as a composer
operator.

[67]        
Mr. Sahota testified that as part of his work duties he is required
to frequently change the spools of string combined with glue that are used in the
composing process.  He testified that the spools (which are of two kinds) weigh
30 to 35 kilograms (66 to 77 pounds) each, and have to be changed by the
composer operator about three times per eight hour shift.  The heavy weight
attributed to the spools seems improbable in the circumstances.  Mr. Brar
testified that the spools weigh only about ten pounds and need to be replaced
only about once every two or three weeks.  However the photographs reveal multiple
spools.  As I prefer the evidence of Mr. Brar, I conclude that the weight
of the spools is much less than the 30 to 35 kilograms that Mr. Sahota
stated, and that they do not need to be changed as frequently as he stated.  Mr. Sahota
also testified that his work is fast paced, in that he has a production quota of
500 sheets per hour.  Mr. Brar states that the work is self-paced.  However
I accept that there must be some reasonable productivity demands and that Mr. Sahota
feels obliged to perform his work quickly and efficiently.

[68]        
In addition to these concerns about Mr. Sahota’s description of his
work, I am mindful of the opinion of Dr. Gouws that he has a tendency to overstate
his degree of disability, and to catastrophize his pain.

[69]        
There was no collateral evidence to that of the plaintiff himself.  I
make no adverse inference in this respect, but the result is that the evidence
as to the effects of the injuries on Mr. Sahota is completely dependent on
his credibility alone.

[70]        
The time estimate for the trial (five days) was clearly insufficient, given
the need for the plaintiff to testify through an interpreter, the defendants’ plan
to attack his credibility, and the number of expert witnesses who testified.  Mr. Sahota’s
counsel argued that no collateral witnesses were called because there was
insufficient time at trial, and that family witnesses had to be abandoned.  A
half day was lost at the outset, but extra time was added on subsequent days
and a day was added for submissions.  I am not in a position to assess
responsibility for the underestimate, but the simple fact is there was limited
evidence at trial concerning the effects of the plaintiff’s injuries.

B.             
Failure to Mitigate Allegation

[71]        
The defendants’ pleadings include a boiler plate reference to an
allegation of failure to mitigate.  No details are pleaded.  No formal failure
to mitigate argument was made in submissions.  The defendants argued that Mr. Sahota
has not exercised to the extent that has been recommended.  There is probably
some truth to this. In my view this factor enters into my assessment of the
nature of the injuries and likely prognosis, rather than forming the basis of a
true failure to mitigate.

[72]        
In order to succeed in establishing a reduction in the damages due to a
plaintiff’s failure to mitigate his loss, a defendant must do more than show
that the plaintiff failed to engage in treatment that could or might have been
beneficial: Gregory v. Insurance Corporation of British Columbia, 2011
BCCA 144, at para. 56.  The defendant must prove two things: (1) that the
plaintiff acted unreasonably in failing to pursue a course of medical treatment
recommended to him by doctors; and (2) the extent to which, if any, the
plaintiff’s damages would have been reduced had he acted reasonably: Chiu v.
Chiu, 2002 BCCA 618, at para. 57.  Here, the defendants have not
established a failure to mitigate.

IV.           
Assessment

A.             
Non-Pecuniary Loss – Assessment

1.              
Legal Principles

[73]        
I reviewed the applicable legal principles relating to the assessment of
non-pecuniary loss in Gillam v. Wiebe, 2013 BCSC 565, at paras. 68-71
and do not need to repeat them in full here.

[74]        
The assessment of non-pecuniary damages is necessarily influenced by the
individual plaintiff’s personal experiences in dealing with his or her injuries
and their consequences, and the plaintiff’s ability to articulate that
experience: Dilello v. Montgomery, 2005 BCCA 56, at para. 25.
Factors to consider in the assessment include: (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: Stapley
v. Hejslet, 2006 BCCA 34, at para. 46.

2.              
Assessment – Non Pecuniary loss

[75]        
Mr. Sahota is now 53 years of age.

[76]        
As noted, I accept that Mr. Sahota was relatively healthy prior to
the accident, with no low back pain and no significant ongoing limitations of
daily function.

[77]        
The accident resulted in upper and mid back pain, and right shoulder and
arm pain, that endured for about six months, and right leg pain that resolved
within less than a year.  However he is left with chronic low back and left leg
pain.

[78]        
I accept that the chronic pain he suffers from is moderately severe and
that he suffers from it on a daily basis.  I accept that the pain is
significantly limiting in relation to his activities of daily living and social
and recreational activities.  His condition is substantially improved (to the
extent of up to 80%) by repeated epidural cortisone injections, which Mr. Sahota
undergoes once or twice per year.  However the benefit of these injections
diminishes over time and therefore they must be repeated.  This treatment will
continue for an indefinite length of time into the future.  He takes pain
medication daily.  There is a small chance that he may require spinal surgery
sometime in the future.

[79]        
Mr. Sahota would likely benefit from more exercise.  His efforts in
this regard in the past have been limited.

[80]        
Overall, his condition has not yet plateaued, in the sense that further
recovery is likely to occur.  In fact, as Dr. Heran states, the vast
majority of patients with discogenic back pain improve with time, that is
within ten years, with or without surgery.  However he is likely to experience
pain and limitation of function for years to come.

[81]        
His condition interferes somewhat with his work.  He has now worked
steadily for over two years since his second return to work in May 2012. 
However his work results in pain and fatigue.  His work duties are light, and
he will be able to continue to work in his present work indefinitely.  He is
precluded from heavy physical work.

[82]        
Mr. Sahota’s injuries interfere with and limit his enjoyment of
life.

[83]        
Mr. Sahota is very religious.  He is very involved in the
activities of the Sikh religion and of the temple where he is an active
dedicated volunteer.  I accept his testimony that his injuries significantly
interfere with his religious activities, in which he spends many hours each
week.

[84]        
I accept as well that his injuries have limited his ability to do
gardening, yard work and exterior household maintenance.  Mr. Sahota does
not do work inside the home, such as cooking and cleaning.  The garden and yard
work is now taken care of by his father in law who resides with him.

[85]        
His ability to travel for long distances by car has been affected, as
has his ability to engage in physical play with his children.  As noted by Dr. Gouws,
he is at risk for depression.

[86]        
The defendants argue that if I find Mr. Sahota’s complaints have
little or no credibility, as the defendants urge, then an award of non-pecuniary
damages of $7,500 to $15,000 would be appropriate, on the basis of a mild soft
tissue injury at best.  However this does not in any way accord with my
findings.

[87]        
The defendants provide the following authorities in which non-pecuniary
awards of $16,500 to $32,500 were made: Lessey v. Canuel, 2013 BCSC 455
($16,500); Harshenin v. MacLeod, 2013 BCSC 2219 ($25,000); Mirsaeidi
v. Coleman, 2014 BCSC 415 ($25,000); Healey v. Chung, 2014 BCSC 429
($32,500); and Huntley v. Daley, 2014 BCSC 978 ($20,000).  In my view
these authorities are not applicable on the facts as I have found them in this
case.

[88]        
Plaintiff’s counsel submits that non-pecuniary loss should be assessed
at $120,000 to $125,000.  Counsel cites the following authorities: Beagle v.
Cornelson Estate, 2012 BCSC 1934 ($90,000); Larwill v. Lanham, 2001
BCSC 1597 ($115,000); Demedeiros v. Heinrichs, 2001 BCSC 1475 ($70,000)
[plaintiff’s counsel says this would be $85,000 today with inflation]; Majer
v. Beaudry, 2002 BCSC 746 ($95,000) [plaintiff’s counsel says this would be
$114,000 today with inflation]; Ingvaldson v. White, 2001 BCSC 661
($90,000) [plaintiff’s counsel says this would be $110,000 today with
inflation]; and Zubek v. Clarkson, 2000 BCSC 148 ($80,000) [plaintiff’s
counsel says this would be $100,000 today with inflation].

[89]        
Likewise, in my view these authorities are not of assistance given my
findings. The medical prognosis in the cited cases was generally very negative,
and the effect of the injuries more severe.  For example, in all the cited
cases there were serious effects on the plaintiff’s ability to work, with the
injuries either preventing the plaintiff from continuing in his or her desired
occupation or restricting the type or amount of work the plaintiff could
perform.  As I will discuss later, that is not be the case here.  This factor is
relevant to the assessment of non-pecuniary damages even though the economic
impact of lost earning capacity is assessed separately.

[90]        
In my view the following authorities provide useful guidance in relation
to the appropriate quantum of non-pecuniary loss: Mandra v. Lu, 2014
BCSC 2199; MacAulay v. Field, 2014 BCSC 937; Amini v. Khania,
2014 BCSC 1671; Jiwani v. Borodi, 2014 BCSC 1164; and Rutter v. Allen,
2012 BCSC 135.  In these cases, non-pecuniary damages of between $65,000 and
$75,000 were awarded.

[91]        
Upon considering the authorities cited, and on the findings I have made,
I consider that the sum of $70,000 represents a fit and proper award for non-pecuniary
loss in this case.

B.             
Past Loss of Earnings

[92]        
It is agreed that the plaintiff was away from his work and lost income
as follows:

[93]        
Prior to trial the defendants conceded that the first period of time
lost was caused by the accident injuries.  At trial they contested the second period,
on the basis that the plaintiff’s ongoing low back and leg pain problems were
not accident related.  I have found against the defendants on that issue.

[94]        
The Notice to Admit and Response to Notice to Admit refer to another
period of time off work, July 25, 2011 to August 2, 2011, with a loss of wages
of $1,080.  However no reference was made to this in the evidence or in the
final submissions of the parties so I infer that it is no longer thought
relevant.

[95]        
Mr. Sahota was also off work for three months in 2013 as a result
of carpal tunnel surgery.  The parties agree that this matter is not relevant
to the plaintiff’s claims in this case.

[96]        
It is to be noted that Mr. Sahota returned to work after the KARP
program and continued to work full time for eight months between the two
periods of time off.  This was a prolonged and sustained effort to continue
with work despite adversity.

[97]        
Dr. Rai supported Mr. Sahota’s need to take further time off. 
In early December 2011 Dr. Rai referred him to the chronic pain clinic at
Surrey Memorial Hospital, where he began undergoing the cortisone injection
treatments in January 2012, which improved his function and allowed him to
resume working.  Thus the two separate but lengthy periods of work loss is
explainable in relation to the progress of his treatment.

[98]        
Dr. Heran’s opinion is that the time off from work was reasonable.

[99]        
I conclude that the time off of work, while long, was necessitated by
the accident injuries and that the loss as claimed has been established.

[100]     Mr. Sahota
testified that he also loses two or three days of income from work after the
steroid injections.  Specifics were not given in evidence.  In submissions
counsel argued that the sum of $1,400 should be allowed in this respect.  I am
not satisfied that this further loss is satisfactorily proven.  Given the
nature of Mr. Sahota’s work, and the records that ought to be available,
it should have been quite possible for the plaintiff to specify clearly what
time was lost due to treatment and to adduce appropriate records.  No effort
was made to do so.

[101]     Section 98
of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, stipulates
that a person who suffers loss of income is only entitled to recover the net
income amount as damages: see X. v. Y., 2011 BCSC 944, at para. 187
and Lines v. W & D Logging Co. Ltd., 2009 BCCA 106, at paras. 152-186.

[102]     If the
parties are unable to agree as to the amount to be deducted, they will be at
liberty to apply, provided that arrangements for further submissions are made within
30 days of the release of these reasons.

C.             
Loss of Future Earning Capacity

[103]    
The principles that apply in assessing loss of future earning capacity
were summarized by Justice Low in Reilly v. Lynn, 2003 BCCA 49 at para. 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.

[104]     The
appropriate means of assessment of loss of earning capacity 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.

[105]     The
assessment of damages is a matter of judgment, not calculation: Rosvold
v. Dunlop, 2001 BCCA 1, at para. 18.

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

[107]     The
plaintiff has the burden of proving that there is a real and substantial
possibility of a future event leading to an income loss.  If that burden is
met, then the plaintiff may prove the quantification of the loss of earning
capacity.  There are two possible approaches to assessment of loss of future
earning capacity:  the “earnings approach” described in Pallos; and the
“capital asset approach” outlined in Brown.  Both approaches are correct
and will be more or less appropriate depending on whether the loss in question
can be quantified in a measureable way: Perren v. Lalari, 2010 BCCA
140.

[108]     The
earnings approach involves a form of math-oriented methodology such as:  (i)
postulating a minimum annual income loss for the plaintiff’s remaining years of
work, multiplying the annual projected loss by the number of remaining years
and calculating a present value; or (ii) awarding the plaintiff’s entire annual
income for a year or two: Pallos, at para. 43; Gilbert v.
Bottle, 2011 BCSC 1389, at para. 233.

[109]     The
capital asset approach involves considering factors such as whether:  (i) the
plaintiff has been rendered less capable overall of earning income from all
types of employment; (ii) the plaintiff is less marketable or attractive as a
potential employee; (iii) the plaintiff has lost the ability to take advantage
of all job opportunities that might otherwise have been open; and (iv) the
plaintiff is less valuable to himself as a person capable of earning income in
a competitive labour market: Brown, at para. 8; Gilbert,
at para. 233.

[110]     Counsel
for the plaintiff argues that Mr. Sahota should be compensated for loss of
earning capacity.  Mr. Sahota testified that but for the accident, it was
his intention to keep working until the age of 70.  He still has a family to
support.  He is now less confident in his ability to continue to work until age
70.  Counsel argues that on the evidence it is unlikely that Mr. Sahota
will now be able to work until age 70.  The possibility of surgery is relied
upon.  Counsel argues that a reasonable award reflecting all contingencies
would be based upon two or three years of loss of income and would be in the
range of $160,000 to $200,000.

[111]     The
evidence is that Mr. Sahota is capable of performing his present work.  He
has successfully done so for more than two years since returning to work the
second time in May 2012.  Mr. Brar testified that Mr. Sahota’s work
is secure. Richmond Plywood is a cooperative, owned by the employees.  Mr. Sahota
is a small share part owner in the business, although he has no role in
management.  There was no evidence to suggest that the company and its business
may not continue to be viable for the foreseeable future.  Mr. Sahota has
worked for the same employer for 22 years.  The prognosis is for continuation
of chronic pain, but some improvement is likely.

[112]     In all
likelihood, then, Mr. Sahota will continue to be employed by his present
employer in his present position and will not suffer any further significant
loss of income due to his accident injuries.  The chances of surgery being
required are low, and surgery if required may be well into the future,
therefore the allowance would be discounted.  No evidence was adduced as to the
length of time away from work that would be entailed for the surgery and for
recovery.

[113]     As
mentioned above, in order to obtain an award for loss of future earning
capacity, a plaintiff must always prove that there is a real and substantial
possibility of a future event leading to an income loss: Perren, at para. 32.

[114]     Here, other
than the prospect of losing a few days of income from time to time in order to
undergo future injection treatments, I am not satisfied that the plaintiff has
proven a real and substantial possibility of a future event leading to an
income loss.  In my view there is no substantial possibility that the plaintiff
will not continue to work in his present position for the foreseeable future, and
likely until his retirement.

[115]     A small
allowance for wage loss for future injection treatment is justified.  This can
only be an estimate doing the best I can with limited evidence.  Mr. Sahota
earns $30 per hour and works an eight hour shift.  Thus the loss of one day’s
pay equals $240.  He testified that he cannot work for two to three days post
injection.  In my view the sum of $5,000 is a reasonable allowance for future
loss of earnings in this respect, based upon the premise that he may continue
to require injection therapy twice annually for the next few years, and taking
into account contingencies.

D.             
Loss of Housekeeping Capacity

[116]     Mr. Sahota
argues that an award of $8,000 to $16,000 is justified for loss of housekeeping
capacity.  This is based upon the lost value of Mr. Sahota’s work in yard
and exterior house maintenance and caring for a vegetable garden.  The yard
work is currently taken care of by his father in law who is 67 years of age.  Mr. Sahota
argues that his father in law may not be able to continue doing the work and Mr. Sahota
could have to pay for the services.  It is acknowledged that there is no
evidence as to the economic value of the services or the cost of replacement. 
However the plaintiff argues that the value can be assumed to be in the range
of $1,600 per year, and that a five to ten year time frame yields an award of
$8,000 to $16,000.

[117]    
I recently referred to the principles relating to an award for
loss of housekeeping capacity in Rogalsky v. Harrett, 2014 BCSC 1255 at paras. 69-70:

[69]      The legal principles relating to a claim for lost
homemaking capacity were conveniently summarized by Dardi J. in X. v. Y.,
2011 BCSC 944, at paras. 246-248, as follows:

[246] In Dykeman v. Porohowski,
2010 BCCA 36, Newbury J.A. at para. 28 summarized the governing principles
with respect to awarding damages for the loss or impairment of housekeeping
capacity. She affirmed that damages for the loss of housekeeping capacity may
be awarded even though the plaintiff has not incurred any expense because housekeeping
services were gratuitously replaced by a family member. Recovery may be allowed
for both the future loss of the ability to perform household tasks as well as
for the loss of such abilities prior to trial. The amount of compensation
awarded must be commensurate with the plaintiff’s loss: Dykeman at para. 29.

[247] In McTavish v.
MacGillivray, 2000 BCCA 164, the Court of Appeal endorsed the replacement
cost approach to the valuation of lost housekeeping capacity. Madam Justice
Huddart’s comments at paras. 67-68 are instructive:

[67] … The loss of the ability to
perform household tasks requires compensation by an award measured by the value
of replacement services where evidence of that value is available.

[68] In my view, when housekeeping
capacity is lost, it is to be remunerated. When family members by their
gratuitous labour replace costs that would otherwise be incurred or themselves
incur costs, their work can be valued by a replacement cost or opportunity cost
approach as the case may be. That value provides a measure of the plaintiff’s
loss.

[248] In assessing the damages on
the replacement cost approach, the court must carefully scrutinize the
gratuitous services done by the family member. A relatively minor adjustment of
duties within a family will not justify a discrete assessment of damages: Campbell
v. Banman, 2009 BCCA 484 at para. 19. In Dykeman at para. 29,
Madam Justice Newbury cautioned that:

Instead, claims for gratuitous
services must be carefully scrutinized, both with respect to the nature of the
services – were they simply part of the usual ‘give and take’ between family
members, or did they go ‘above and beyond’ that level? – and with respect to
causation – were the services necessitated by the plaintiff’s injuries or would
they have been provided in any event?

[70]      Another useful summary of the principles applicable
to assessment of damages for loss of homemaking capacity was provided by
Sigurdson J., in Ladret v. Stephens, 2013 BCSC 1999, at paras. 100-110.
There, Sigurdson J. noted that such claims are invariably difficult to assess: Ladret
at para. 103.

[Emphasis in original.]

[118]     I am not
satisfied that a compensable loss has been established in the case at bar. 
There is no evidence of values.  There is no evidence from which values could
be estimated, such as hours or replacement costs.  There is as noted no
corroborative evidence.  The medical evidence is that the plaintiff remains
capable of light physical work and that exercise is beneficial.  There is a
reasonable prospect of improvement in the plaintiff’s condition.  In my view,
in this case, interference with the plaintiff’s ability to engage in yard work
and gardening or ordinary household maintenance is a factor that should
properly be taken into account in the assessment of non-pecuniary general
damages, which I have done.

E.             
Costs of Future Care and Special Damages

[119]     No claim
for costs of future care is advanced, as the costs of medication and steroid
injections is covered by extended health insurance through Mr. Sahota’s
work and by the medical services plan.

[120]     Special damages
of $3,676.80 are claimed.

[121]     An injured
person is entitled to recover the reasonable out-of-pocket expenses they
incurred as a result of an accident.  This is grounded in the fundamental
governing principle that an injured person is to be restored to the position he
or she would have been in had the accident not occurred: X. v. Y, at
para. 281; Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33, at 78
(S.C.).

[122]     The
plaintiff adduced receipts for the expenses that are claimed. He was not
challenged on these expenses.  The defendants argued in final submissions that
some of the prescription medication claims are for unrelated conditions.  I am
not able to make that determination on the evidence.  The defendants argued
vaguely that the majority of the expenses should be disallowed as Mr. Sahota
should not be believed generally or the expenses are unrelated.  Those
submissions do no accord with my findings. I am satisfied that all of the
claimed expenses are established by the evidence.

V.             
Conclusion and Summary

[123]     The
plaintiff will recover damages as follows:

[subject to tax deduction]

[124]    
The plaintiff is entitled to costs, subject to the application of any
relevant offers to settle and Rule 9-1.  The parties are at liberty to arrange
within 30 days to make submissions regarding costs, if necessary, and in
relation to the tax deduction issue in respect of the past loss of income
award.

“Verhoeven J.”