IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150703

Docket: M111601

Registry:
Vancouver

Between:

Michael
Yannacopoulos

Plaintiff

And

Gordon Louis Cronk

Defendant

Before:
The Honourable Madam Justice Ross

Reasons for Judgment

Introduction

[1]            
The plaintiff Michael Yannacopoulos sues for damages for injuries
suffered as a result of a motor vehicle accident which took place on September
22, 2009, on King George Boulevard between 84th and 86th Avenue in Surrey,
British Columbia (the “Accident”). Mr. Yannacopoulos was driving the middle
vehicle in a three-car collision. As a result of the Accident, Mr.
Yannacopoulos suffered a blow to his head, injuries to his neck, back,
shoulders, right wrist, and dental injury. The main issue at trial concerned
his low back pain which had lingered after the other injuries resolved.

[2]            
Mr. Yannacopoulos advances a claim for non-pecuniary loss, past loss of
earnings, future loss of earnings, special damages, future care, and loss of
future housekeeping capacity. Liability is not in issue. The defendant does not
dispute that Mr. Yannacopoulos suffered injury in the Accident, but disputes
the quantum. A central issue concerns Mr. Yannacopoulos’ condition prior to the
Accident and the implications that this has for the damages to be awarded.

Facts

[3]            
Mr. Yannacopoulos is 55 years old. Together with his wife Angeles, he is
the sole proprietor of an accounting business, Yannacopoulos Accounting
Services Inc. The business specializes in providing accounting and tax planning
services to small businesses.

[4]            
Mr. Yannacopoulos has been married for 32 years and is the father of two
children: Anthony, who is 23, and Cristina, who is 21.

Pre-Accident

[5]            
Mr. Yannacopoulos suffered from a number of medical conditions prior to
the Accident. These included hypertension, hypothyroidism, high cholesterol,
obstructive sleep apnea, Factor V Leiden thrombophilia which is a condition in
which the patient is at greater risk to form abnormal blood clots that can
block blood vessels, asthma, and obesity. Mr. Yannacopoulos had been markedly
overweight since adolescence. He is 5’6” and weighs approximately 300 pounds.
He was referred to a cardiologist in 2006 after complaining of being easily
fatigued.

[6]            
Mr. Yannacopoulos was also suffering from spondylolysis at L4 prior to
the Accident as indicated in 2004 and 2006 X-rays. This is a congenital
condition in which there is a discontinuity in the bony elements of the spinal
column. Many persons who have this condition will be asymptomatic. In addition,
many persons who have this condition will not experience any further
deterioration. However, some patients will experience symptoms as a consequence
of this condition and further deterioration is a possibility.

[7]            
Finally, commencing in 2001, Mr. Yannacopoulos had been periodically
seeking treatment for lower back pain prior to the Accident. He received
massage therapy, and attended physiotherapy and his family physician in
relation to these complaints. The complaints appear to have been intermittent.
They continued to 2009, shortly before the Accident.

[8]            
As noted, one important issue is whether and to what extent these
conditions, and in particular the complaints of low back pain, interfered with
Mr. Yannacopoulos’ level of function. A number of friends and family testified
that prior to the Accident Mr. Yannacopoulos maintained an active and energetic
lifestyle without limitation. In addition, they testified that this active
lifestyle continued without interruption up to the time of the Accident.

[9]            
Witnesses described Mr. Yannacopoulos as an enthusiastic golfer. They
stated that he participated in frequent hunting, fishing, and camping trips and
was able to do heavy work on those trips without limitation. Witnesses stated
that he played soccer and he was described as an agile and active goalie. He
was said to have enjoyed long walks, which he was able to do without limitation,
and travel. He was said to take part in hiking and bicycle riding. Witnesses
stated that he demonstrated no limitations in any of these activities as well
as standing, walking, dancing, and climbing stairs.

[10]        
Mr. Yannacopoulos was described as having a very active social life. He
attended many functions in the Greek community and hosted many events at his
home. He was described as an excellent host, very gregarious and sociable.

[11]        
The friends who testified stated that they were not aware of any issues
with Mr. Yannacopoulos’ back prior to the Accident. Angeles Yannacopoulos
stated that she could only recall one problem with Mr. Yannacopoulos’ back –
that was an instance of back spasm that occurred in Victoria, perhaps 13 years
ago. She stated that she does not recall Mr. Yannacopoulos ever complaining of
lower back pain before the Accident. His son Anthony testified that he could
recall Mr. Yannacopoulos taking Tylenol for back pain when they were golfing
together before the Accident.

[12]        
Mr. Yannacopoulos agreed that he did suffer from periodic episodes of
low back pain prior to the Accident. However, it was his evidence that these
episodes did not interfere with his lifestyle or ability to function. He stated
that they were episodic in nature. His description of his activities prior to
the Accident was to the same effect as that of his family and friends.

[13]        
On cross-examination, many of the witnesses’ memories of Mr.
Yannacopoulos’ activities were from many years prior to the Accident. For
example, Gregory Chambers agreed in cross-examination that the last time he
recalled seeing Mr. Yannacopoulos biking was in approximately 2001. Kevin
Spence described Mr. Yannacopoulos taking part in Greek dancing, but agreed in
cross-examination that this had occurred about 20 years ago at Cristina
Yannacopoulos’ christening. Anthony Yannacopoulos described long walks to his grandparents’
house, to the village in Whistler, and around Disneyland, as well as skiing and
downhill biking with his father, but these memories were all from when he was
about 14 to 16 years old or two to four years before the Accident.

[14]        
The medical and treatment records reflect a somewhat different picture.
Mr. Yannacopoulos began receiving massage therapy for low back pain in 2002
after an accident suffered while bike riding. The pain is described as a
constant ache on both sides with the left side being worse. He continued to
receive massage therapy treatments thereafter on a periodic basis for lower
back pain in 2002, 2003, 2004, 2005, 2006, and 2009.

[15]        
He attended at the emergency department in Victoria in 2004 in relation
to an episode of low back pain. In November 2005, Mr. Yannacopoulos reported to
his family physician that he had stopped biking, and that he had ongoing low
back pain with no radiculopathy. He attended physiotherapy where the clinical
records report that he complained of low back pain, especially with standing
and slow walking. The records note that his low back pain had been bad for two
to three years and refer to the acute episode in 2004.

[16]        
Mr. Yannacopoulos attended his family physician on four occasions in
2006 with complaints of low back pain. In July 2006, he reported to his family
physician that he had decreased exercise about a year ago, had now gone biking
but with increased back pain. He was put on medication. At a subsequent visit
in November his physician diagnosed mechanical back pain and prescribed an
increased dosage of medication.

[17]        
Mr. Yannacopoulos attended Dr. Cheung, a cardiologist, for cardiac
reassessment in September 2006. He reported being fatigued and stated that he
had only recently resumed regular physical activity. He reported that he was
now using an elliptical trainer for five to ten minutes and was increasing his
walking.

[18]        
Mr. Yannacopoulos attended physiotherapy again in 2007 with complaints
of low back pain. The clinical records note that he reported experiencing low
back pain for five years.

[19]        
Mr. Yannacopoulos was attending massage therapy for complaints of lower
back pain in 2009, a few months prior to the Accident. The clinical records
describe the low back pain as chronic. He completed a patient history form in
May 2009 in which he complained of poor quality sleep, poor energy levels, and
poor exercise habits. He identified low back soreness and described his
symptoms as being medium, stating that he was required to stop after 15 minutes
of walking due to pain.

[20]        
Mr. Yannacopoulos stated that he did not recall making the reports
described in the clinical records. However, he agreed that he would have been
honest in reporting his condition to the treating professionals.

[21]        
Finally, Dr. Weiler, Mr. Yannacopoulos’ family physician, stated that prior
to the Accident, Mr. Yannacopoulos was also suffering from spondylosis which is
the degeneration of the spine causing discs to dry out and compress and encompassing
facet joint arthritis. A degree of spondylosis is universal or near universal
with aging. The onset and progression will vary. Many persons will have some
degree of spondylosis but will not experience pain. However there will be
patients who do experience pain as a result of this condition. Both trauma and
obesity are factors which can accelerate the degeneration and the development
of symptoms.

The Accident

[22]        
On the day of the Accident, Mr. Yannacopoulos was driving his pickup
truck positioned behind other vehicles at a red light. His truck was struck by
a full-sized pickup that had been travelling at 60 kph just before the
Accident. He stated that he saw the vehicle that struck him approaching in his
rear-view mirror, not slowing down. After the crash he was in a horizontal
positon. He tried to get up. The seat had moved into the back of his vehicle.
He felt dizzy and had a pain in his head. He recalled speaking to people who
came to assist at the scene and to the emergency attendants.

[23]        
A description of the Accident was provided by Anne Loewen, who was
driving another vehicle that was involved in the Accident. The car behind her
had been hit and pushed into her vehicle. She described swerving her car to the
left into the median while the truck behind her went off to the right, coming
to rest on the grassy area near the sidewalk. It was her impression that the
truck’s seat had been broken. She observed the driver being thrown around in
the vehicle.

[24]        
Mr. Yannacopoulos was taken from the scene by ambulance to Surrey
Memorial Hospital’s emergency department. X-rays were taken of his cervical,
thoracic, and lumbar spines which were reported as normal. He was released
later that day.

[25]        
Angeles Yannacopoulos recalled waiting for her husband at the hospital
on the day of the Accident. He was in a neck brace, very upset, and in
considerable pain. He was spitting up pieces of a broken tooth. She observed a
golf ball-sized bump on his head.

Post-Accident

[26]        
During the days following the Accident, Mr. Yannacopoulos testified that
he experienced pain in his head, where he had a large bump, as well as pain in
his neck, back, left arm, right wrist, and dental injuries from a broken tooth.
He complained of headaches and problems with his memory.

[27]        
Mr. Yannacopoulos took about a week off work to heal in the immediate
aftermath of the Accident. He returned to work as soon as he felt he was able.
He stated that within a few weeks all his pain resolved except for the pain in
his neck and back. The neck pain resolved within a few months. However, the low
back pain has not resolved. He felt that he was still having memory issues.

[28]        
He said that he was not able to return to the activities he enjoyed
before the Accident. He tried to do work around the house but was not able to
complete the tasks. He tried hunting, fishing, and soccer but realized that he
was not able to participate. He was not able to dance, and had difficulty
standing and walking. He tried to attend social functions as before but found
he did not enjoy them.

[29]        
Mr. Yannacopoulos commenced physiotherapy in October 2009 and continued
to receive treatment until August 2010. He commenced massage therapy treatment
in November 2009 and continued with those treatments until June 2010. He was
prescribed pain medication and nonsteroidal anti-inflammatories. In 2010 he
began working with a personal trainer.

[30]        
A record from physiotherapy dated November 17, 2009, records that he was
able to stand for half an hour and to walk on the treadmill for 15 minutes. By
January 2010 he was able to manage 15 minutes on the treadmill. The same entry
was reflected in the April 2010 notes from physiotherapy.

[31]        
A further X-ray of the lumbar spine was performed on March 31, 2010.
This reported grade 1 spondylolisthesis of L4 on L5 due to spondylolysis of L4
and thinning of the L4-5 disc. Spondylolysis can lead to a condition called spondylolisthesis
or anterolysthesis which is a slippage of the vertebrae, an anterior slippage
in the case of anterolysthesis.

[32]        
Mr. Yannacopoulos had an MRI of his lumbar spine performed on September
24, 2010, which reported an L4-5 annular tear with disc extrusion compressing
the thecal sac with left L5 nerve root displacement as well as moderate left
foraminal narrowing encroachment upon left L4 nerve root. The MRI also reported
mild to moderate facet arthropathy at L2-3 and L3-4.

[33]        
Mr. Yannacopoulos was referred to Dr. Winston Gittens, a neurosurgeon,
for an opinion concerning his L4-5 disc herniation. The appointment was on
October 26, 2010. Dr. Gittens recommended continued conservative management
with exercise, weight loss, and swimming, and if symptoms persisted, an L4-5
discectomy.

[34]        
The conservative treatment did not result in improvement and so on
November 14, 2011, Mr. Yannacopoulos was admitted to Royal Columbian Hospital
for a left L4-5 discectomy performed by Dr. Gittens.

[35]        
Mr. Yannacopoulos did not experience relief from his symptoms following
the surgery. Dr. Gittens recommended physiotherapy and weight loss. Mr.
Yannacopoulos started back at physiotherapy. In the meantime, Dr. Weiler tried
several different courses of medication, none of which provided much
assistance.

[36]        
Mr. Yannacopoulos was seen by Dr. Vondette, physical medicine and
rehabilitation specialist, for an independent assessment arranged by his
counsel in May 2012. Dr. Vondette made a number of recommendations and Dr.
Weiler reviewed these with Mr. Yannacopoulos. The recommendations included
consideration of bariatric surgery, and a referral to a physical medicine and
rehabilitation specialist in interventional spine.

[37]        
A repeat MRI of Mr. Yannacopoulos’ lumbar spine was performed on
December 27, 2012. Dr. Weiler noted that:

The MRI reported mild epidural
lipomatosis, a central canal congenitally at the lower limits of normal and
superimposed spondylosis elements at L4-5 level including facet arthropathy,
ligamentum flavum hypertrophy, small disc bulge and residual or recurrent left
paracentral focal disc protrusion, with resulting mild displacement of left L5
nerve root. Additionally, there are mild changes of lumbar spondylosis at other
levels of the lumbar spine.

[38]        
Mr. Yannacopoulos consulted with Dr. M. Adrian, a physical medicine and
rehabilitation specialist in interventional spine:

Dr. Adrian diagnosed Mr. Yannacopoulos with chronic
mechanical lower back pain, lumbar spondylosis with low grade L4 on L5
anterolisthesis, and deconditioning. Dr. Adrian recommended repeat x-rays and a
bone scan to help localize a specific source of pain.

X-ray of lumbar spine performed April 2, 2013, reported L4
spondylolysis with anterolisthesis of L4 on L5, degenerative disc changes at
L4-5, L5-S1, and degenerative facet changes at L4-5, L5-S1.

Bone scan performed on April 10,
2013, reported very mildly active facet joint arthropathy involving L4-5
bilaterally and L5-S1 on left, and mildly active degenerative changes of distal
thoracic spine.

[39]        
On August 1, 2013, Dr. Adrian performed a lumbar epidural steroid
injection. Mr. Yannacopoulos experienced an adverse reaction following the
injection on the left side and therefore the right side injection was not
performed. Mr. Yannacopoulos did not report improvement after the epidural
procedure. On a follow-up visit, Dr. Adrian recommended bilateral L4-5 lumbar
facet joint injections.

[40]        
Mr. Yannacopoulos was receiving treatment for his lower back with a
kinesiologist at Dr. Weiler’s recommendation during this period. He received ten
treatments between September 2013 and February 2014. The final report noted
some objective improvement, substantial improvement in forward flexion, smaller
improvements in other areas, but no subjective improvement. Mr. Larivière, the kinesiologist,
recommended that Mr. Yannacopoulos take a series of aqua therapy sessions.

[41]        
On May 29, 2014, Mr. Yannacopoulos received bilateral facet joint
injections at L4-5. He reported some improvement after this procedure, however,
this did not persist. In July 2014, he had a consult concerning bariatric
surgery but decided against the surgery. Dr. Weiler then referred him to Live
Well Exercise Program under the supervision of Dr. Zentner, an internal
medicine specialist.

[42]        
In August 2014, Dr. Weiler diagnosed Mr. Yannacopoulos with moderate depression
and anxiety after administering standard screening tests. She prescribed
medication and suggested that he consider a referral for counselling. She also
referred him to Dr. S. Wu, interventional radiology, for consideration of
lumbar facet radiofrequency ablation procedure. That treatment has not been
performed.

[43]        
In October 2014, Dr. Adrian recommended Mr. Yannacopoulos consider facet
joint ablation with Dr. Wu. That treatment has not been performed.

[44]        
In the months before trial Mr. Yannacopoulos received a referral for
counselling. He was in the process of being referred to a counsellor who
specialized in pain at the time of trial and had attended a few sessions of
counselling. He said that he had not noticed any improvement but was not ruling
it out. He has also reconsidered bariatric surgery as a possible option.

[45]        
He said that at present he feels pain every day. He finds stairs a
challenge. He is able to sit all day at work without pain, provided he
stretches from time to time. He is not able to stand for more than two minutes
without pain and then only for about five minutes before he has to sit. Walking
any distance is a problem. He is able to walk without pain for about five
minutes and then with pain up to 15 minutes before he has to sit. He has
numbness in his thigh. He stated that he still has memory problems and has
difficulty understanding TV shows. He has lost his desire to go to social
activities and finds that when he does go he is isolated because of
restrictions on his ability to walk and stand.

[46]        
Mr. Yannacopoulos’ family and friends described a significant and
persistent change after the Accident. Mr. Yannacopoulos no longer plays golf,
soccer, or indoor hockey, although he attends some games as a spectator. He has
not been able to participate in fishing and hunting in the way he did before
the Accident. He is not able to perform tasks while camping and is no longer
able to assist with the heavy work around the house. He has great difficulty
standing for any length of time and has to rest after about 15 minutes of
walking. He struggles with the stairs at work.

[47]        
The witnesses noted that Mr. Yannacopoulos is no longer as sociable as
he was before the Accident. He goes out to socialize much less and when he does
go out he is withdrawn and does not mingle. He is not an active host as before
at gatherings hosted at his home. His mood seems down.

Expert Evidence

Dr. Kathleen Weiler

[48]        
Dr. Weiler became Mr. Yannacopoulos’ family physician in 2011. Dr.
Weiler stated that in her opinion Mr. Yannacopoulos sustained neck and back
injuries, post-concussion syndrome, mild to moderate depression, and anxiety
symptoms as a result of the Accident. He developed chronic low back pain with
radiation to his legs that is of multi-factorial origin including mechanical
pain, spondylosis, facet arthrosis, lumbar radiculopathy, and L4-5 disc
herniation which has been surgically repaired. It was her opinion that the
Accident aggravated pre-existing lumbar spondylosis and contributed to
worsening of mechanical back pain, lumbar disc herniation, and L4 on L5 anterolysthesis.
Her long-term prognosis was guarded.

[49]        
Dr. Weiler agreed that prior to the Accident, Mr. Yannacopoulos was
suffering from spondylosis which was intermittently symptomatic. Spondylosis is
a progressive degenerative condition. There are patients who suffer from this condition
who will remain asymptomatic. For those who become symptomatic, the progress
will be from mild and intermittent symptoms to chronic and constant.

[50]        
She agreed that obesity increases the strain on both the joints and the
soft tissue. Obesity could therefore result in a more rapid degeneration and a
worsening of the symptoms of spondylosis. She also agreed that a progression
from spondylolysis to spondylolisthesis is a likely progression if someone is
putting strain on their back.

[51]        
Dr. Weiler stated that she did not observe or treat head injury
symptoms. The diagnosis of concussion was made by another physician.

Dr. Michael Vondette

[52]        
Dr. Vondette is a specialist in physical medicine and rehabilitation. It
was his opinion that:

[T]he extent of his current back
pain and associated disability, both of which are currently significantly worse
than what he experienced prior to September 22, 2009, is primarily the result
of the trauma he sustained in the September 22, 2009 MVA. As of September 22,
2009 he was more susceptible to sustaining a more significant degree of injury
as a result of the trauma he sustained in this MVA. He also would have been
susceptible to experiencing a more prolonged and difficult post-traumatic
clinical course as a result of this trauma. But for the trauma he wouldn’t be
experiencing pain of similar severity and persistence.

[53]        
His prognosis was guarded, although he felt that Mr. Yannacopoulos might
experience some significant improvement if he were to lose 75 to 100 pounds, a
prospect he felt was only likely with bariatric surgery.

[54]        
Dr. Vondette was of the view that it is unlikely that spondylolysis would
progress to anterolysthesis in the absence of trauma at such an advanced age as
Mr. Yannacopoulos and that in his case it was the trauma that caused the
progression. However, he agreed that obesity is a risk factor in chronic back pain.
Obesity is also a factor that will make the back pain worse once it develops.

Dr. Ian Turnbull

[55]        
Dr. Turnbull is a neurosurgeon. It was his opinion that:

Although he said that he has had difficulty with his memory
since the accident, he had a very brief period of unconsciousness and I do not
believe that he suffered a brain injury or that his memory problem is in any
way a physical consequence of the MVA.

I could find no objective evidence to support his complaints
of back pain apart from his complaint of back pain when I elevated his legs.
The nerves leaving his lumbar spine and going to his legs are all functioning
completely normally.

I have no treatment recommendations, apart from supporting
what he has been told with respect to his gross obesity.

His failure to improve his back pain problem following the
operation suggests that the MRI finding of damage to the L4-5 disc was not an
important cause of his back pain, since that particular disc lesion has been
dealt with. The pain can be attributed to soft tissue injury.

Mr. Yannacopoulos has a
mechanical-type low back pain which is aggravated by activity and relieved by
rest. His gross obesity is contributing to the pain that he is experiencing as
a result of placing excessive stress on his lumbar spine with simply the
activities of normal living.

[56]        
Dr. Turnbull noted that excess weight is a factor that aggravates
degeneration, making it more likely that a person with degenerative conditions
in the spine and facet joints will become symptomatic. In addition, excess
weight increases the risk of failure of surgery.

Causation

[57]        
In the present case it is conceded that Mr. Yannacopoulos was injured in
the Accident. A central issue in the litigation is the significance, if any, to
be attached to his history of back complaints prior to the Accident.

[58]        
Mr. Yannacopoulos asserts that prior to the Accident he suffered from
minor incidents of low back pain that were not disabling and not progressing.
Counsel submits that the evidence does not establish a measurable risk that his
condition would have progressed but for the Accident. The defendant submits
that Mr. Yannacopoulos’ pre-existing degenerative changes were symptomatic
prior to the Accident, would have continued to be symptomatic, and would likely
have progressed regardless of the Accident.

[59]        
The leading case is Athey v. Leonati, [1996] 3 S.C.R. 458, in
which Major J. for the Court, stated at paras. 32, and 34-35:

32        …The essential purpose and most basic
principle of tort law is that the plaintiff must be placed in the position he
or she would have been in absent the defendant’s negligence (the “original
position”). However, the plaintiff is not to be placed in a position better
than his or her original one. It is therefore necessary not only to determine
the plaintiff’s position after the tort but also to assess what the “original
position” would have been. It is the difference between these positions, the
“original position” and the “injured position”, which is the plaintiff’s loss.
In the cases referred to above, the intervening event was unrelated to the tort
and therefore affected the plaintiff’s “original position”. The net loss was
therefore not as great as it might have otherwise seemed, so damages were
reduced to reflect this.

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

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

[Emphasis in
original.]

[60]        
The plaintiff’s positon is that prior to the Accident, Mr.
Yannacopoulos’ low back pain was not continuous and not disabling and that
there is no evidence that it was progressing. Counsel submits that the history
of the low back pain before the Accident must be put into the context of the
evidence about Mr. Yannacopoulos’ high level of activity right up to the date
of the Accident.

[61]        
I agree that the low back pain before the Accident was not continuous.
However, as Dr. Weiler explained, where there is a progression in such cases
the likely course is from intermittent and episodic to chronic and continuous.
That is the course that is present in this case. It is noteworthy, in my view,
that the complaints of low back pain prior to the Accident are markedly similar
to the complaints post-Accident. Moreover, while the trips for treatment were
intermittent, it is noteworthy that the pain was characterized as chronic a few
months before the Accident.

[62]        
The frailties of the lay evidence concerning Mr. Yannacopoulos’ pre-Accident
activities limit the usefulness of this evidence. Mr. Yannacopoulos was a very
poor historian. The other lay witnesses were doing their best in a difficult
task, looking back so many years. It was clear from the cross-examination that
their recollections with respect to the timing of activities were not precise
and in many cases they were describing activities from many years prior to the
Accident. The clinical records pre-dating the Accident, on the other hand,
describe significant limitations on activities and most noteworthy, difficulty
walking more than 15 minutes as a consequence of low back pain.

[63]        
As noted above, Mr. Yannacopoulos was suffering from spondylolysis, a
congenital condition in which there is a discontinuity in the bony elements of
the spinal column, at L4 prior to the Accident, as indicated in the 2004 and
2006 X-rays. While many persons who have this condition will be asymptomatic
and will not experience any further deterioration, spondylolysis can lead to a
condition called spondylolisthesis or anterolysthesis which is a slippage of
the vertebrae.

[64]        
Mr. Yannacopoulos did develop anterolysthesis after the Accident. The X-ray
report dated March 31, 2010 indicated spondylolisthesis due to spondylolysis.
The X-ray taken in April 2013 showed a significant progression.

[65]        
Trauma can trigger the progression from spondylolysis to anterolysthesis.
As noted, Dr. Vondette was of the view that it is unlikely that spondylolysis would
progress to anterolysthesis in the absence of trauma at such an advanced age
and that in Mr. Yannacopoulos’ case it was the trauma from the Accident that
caused the progression.

[66]        
However, Dr. Turnbull stated that for trauma to be the trigger he would
expect the trauma to have been bone-breaking in severity and to cause
immediate, excruciating pain. The X-rays taken at Surrey Memorial Hospital the
day of the Accident indicated a normal examination. In addition, Mr. Yannacopoulos
reported that although his back hurt in the immediate aftermath of the
Accident, his most significant pain was in his head and wrist.

[67]        
I conclude that in the present case the Accident was not the cause of
the progression from spondylolysis to anterolysthesis. I prefer Dr. Turnbull’s
opinion in relation to this issue. In addition, I note the absence of slippage
in the imaging conducted after the Accident. The wear and tear associated with
obesity can also cause the progression from spondylolysis to anterolysthesis.
Both Dr. Turnbull and Dr. Weiler addressed this connection. I find in the
present case that the progression was the result of the strain arising from Mr.
Yannacopoulos’ weight.

[68]        
As noted earlier, Mr. Yannacopoulos also suffered from spondylosis, the
degeneration of the spine causing discs to dry out and compress and
encompassing facet joint arthritis. While many patients with this condition
will be asymptomatic, I find that Mr. Yannacopoulos was symptomatic prior to
the Accident. In addition, I find that given his obesity his symptoms would
likely have continued to progress. However, the trauma of the Accident
accelerated this progression.

[69]        
As noted, Mr. Yannacopoulos suffered an annular tear at L4-5 which was
identified in an MRI scan conducted on September 24, 2010. He underwent a discectomy
at Royal Columbian Hospital on November 14, 2011. The surgery did not relieve
his symptoms, causing all of the doctors who provided opinions to conclude that
the disc herniation was not the principal source of his lower back pain.

[70]        
I have concluded that absent the Accident, Mr. Yannacopoulos would have
continued to suffer from intermittent episodes of back pain and reduction of
function. In addition, I find that there is a measureable risk that his
condition would have become chronic absent the Accident. Accordingly, a
reduction in damages is warranted.

[71]        
In Hoy v. Willliams, 2014 BCSC 234 [Hoy], a 15% reduction
was assessed. The court noted the plaintiff’s excellent physical condition
before the accidents as a relevant consideration in limiting the reduction. In Olynyk
v. Turner, 2012 BCSC 1138 [Olynyk], the court concluded that there
was a 60% likelihood that the plaintiff would have experienced the same
symptoms he now experiences in ten years in any event. A reduction of 30% was
assessed. In Filsinger v. ICBC, 2009 BCSC 232 [Filsinger], a
reduction of 20% was applied to account for the pre-existing condition. In that
case the plaintiff’s pre-existing back condition was quiescent at the time of
the accident but was found to be likely to manifest at some time in the future.
The Court of Appeal, in Bouchard v. Brown Bros. Motor Lease Canada Ltd.,
2012 BCCA 331, reduced a 40% deduction to 20% noting that the trial judge had
failed to address the timeline over which the expected future degeneration
would likely occur and to account for such a timeline in the percentage by
which damages are reduced. In Johnson v. Kitchener, 2012 BCSC 1796, a
10% deduction was assessed in circumstances in which the plaintiff had
degeneration of his neck and back prior to the accident but was not
symptomatic. There was some evidence that his neck would have become
symptomatic without the accident but it was unclear when and how debilitating
his symptoms would have been.

[72]        
In the present case, Mr. Yannacopoulos was not asymptomatic at the time
of the Accident. He had been having episodes of back pain similar to those he
experienced post-Accident since 2002. His weight caused constant strain on his
spine and soft tissue. I have concluded that the Accident accelerated a
degenerative process that was well established and progressive. However, it is
not possible to estimate how long it would have taken, absent the Accident, for
Mr. Yannacopoulos’ condition to reach the state he was in after the Accident.
In all of the circumstances I have concluded that a 25% deduction is
appropriate.

[73]        
There is some suggestion in the evidence that Mr. Yannacopoulos has
suffered from a brain injury or that he continues to suffer from post-concussion
syndrome as a result of the Accident. For example, Mr. Yannacopoulos and his
wife described memory loss and suggested that he is unable to understand
television shows.

[74]        
In my view, the suggestion that Mr. Yannacopoulos suffers from cognitive
impairment is at odds with the evidence concerning his performance in his
profession. For example, Baljinder Johal is an accountant who has obtained a
Certified General Accountant designation. She is currently working toward
completion of an MBA. She has seven years’ experience as an accountant. Mr. Yannacopoulos
hired Ms. Johal in March 2013. It was her evidence that Mr. Yannacopoulos
oversees all the work of the firm as well as meeting with the clients. He
attends the office from 8:00 a.m. to 4:00 p.m., sometimes leaving
early for meetings with clients or medical appointments. She estimates that he
leaves early perhaps three or four times a month. In addition, Mr. Yannacopoulos
puts in extra hours on the weekends during tax season.

[75]        
She stated that his memory usually appears good but that perhaps two or three
times he has mentioned to her that he has forgotten something. She stated that
Mr. Yannacopoulos is very professional and prompt in reviewing work and
responding to inquiries.

[76]        
Mr. Yannacopoulos has memory of the events leading up to and immediately
following the collision. For example, he testified that he recalled seeing the
vehicle driven by the defendant travelling toward his vehicle prior to the
impact. He recalls speaking with people at the scene within minutes of his
vehicle coming to rest. He has continuous memory of events following the
accident. Any loss of consciousness was minimal.

[77]        
Mr. Yannacopoulos was not disoriented after the accident. He was
assessed by the paramedics at the scene who graded him as 15/15 on the Glasgow
Coma Score. This is a normal score. He was given a neurological assessment at
the scene which indicated normal functioning. The triage report at the hospital
noted no neurological deficits.

[78]        
Dr. Larigakis, who was Mr. Yannacopoulos’ family physician at the time
of the Accident, made an initial diagnosis of concussion. However, there is no
suggestion that he referred Mr. Yannacopoulos to a specialist in relation to
this issue. Dr. Weiler stated that she did not diagnose a head injury and had
never observed any symptoms of a head injury. Finally, Dr. Turnbull stated that
he did not believe that Mr. Yannacopoulos suffered a brain injury or that his
memory problem is in any way a physical consequence of the Accident.

[79]        
I find that while he did suffer a blow to his head in the Accident
resulting in a painful bump to his head, Mr. Yannacopoulos did not suffer a
brain injury in the Accident. I find further that any memory problems are not
the result of the Accident.

Non-Pecuniary Loss

[80]        
Mr. Yannacopoulos seeks an award of $140,000 for non-pecuniary loss.
Counsel submits that Mr. Yannacopoulos has suffered and will continue to suffer
both from chronic pain and from the inability to pursue his former way of life
and former social and recreational activities.

[81]        
It is submitted that prior to the Accident, Mr. Yannacopoulos was very
active, participating in many social activities and recreational pursuits. He
enjoyed golf, hiking, bicycle riding, hunting, and fishing. He participated in
floor hockey and indoor and outdoor soccer. He enjoyed taking long walks and
travelling. He was active in the Greek community, participating in many community
organizations and social activities and enjoyed Greek dancing. He was able to
work long hours at his business and to do the heavy work around the house.

[82]        
Counsel submits that in the aftermath of the Accident, Mr. Yannacopoulos
is now severely limited. Virtually all social and recreational activities are a
challenge. He is unable to engage in many of the activities he once enjoyed
such as golf, ocean fishing, bicycle riding, and hiking. His participation in
other activities is very limited.

[83]        
Counsel relies upon the following cases as establishing the range of
damages: Debou v. Besemer, 2014 BCSC 1766; Kirkham v. Richardson,
2014 BCSC 1068; Crane v. Lee, 2011 BCSC 898; and Bruno v. Diamzon,
2014 BCSC 1270 [Bruno].

[84]        
The position of the defendant is that an appropriate award for non-pecuniary
loss is in the range of $60,000 to $80,000, from which a 30% reduction should
be made to account for the pre-Accident, moderately symptomatic, degenerative
condition suffered by Mr. Yannacopoulos. The result would be an award of
$42,000 to $56,000. Counsel submits that Mr. Yannacopoulos’ low back pain and
function had returned to the same levels reported pre-Accident. The low back
pain was triggered by walking for about 15 minutes, as had been the case before
the Accident and was alleviated by sitting, again as in the pre-Accident
presentation.

[85]        
Counsel relied upon the following cases as indicative of the appropriate
range for non-pecuniary loss: Olynyk; Gilmour v. Machibroda, 2008
BCSC 260; Filsinger; Baxter v. Jamal, 2010 BCSC 289; and Hoy.

[86]        
In my view, the cases relied upon by the plaintiff to establish the
appropriate range reflect damages that are more severe than those in the
present case and do not account for the difficulties that were present and
manifest in the plaintiff’s original positon. In addition, there is a prospect
of improvement in Mr. Yannacopoulos’ low mood with counselling and treatment
for his depression, which he is only just commencing. There is also the
prospect of improvement in his low back pain in the event that he loses weight
and improves his conditioning.

[87]        
I award $80,000 under this head, less a 25% reduction to account for the
degenerative condition, for a total award for non-pecuniary loss of $60,000.

Past Earnings

[88]        
Mr. Yannacopoulos seeks an award of $250,000 in relation to past lost
earnings. Counsel notes that Mr. Yannacopoulos testified that his method of
marketing his business involved community activities. He met new clients
through his social and recreational activities. Mr. Yannacopoulos testified
that after the Accident he has not been able to engage in these social and
recreational activities and his business has suffered. Counsel notes in
addition that Mr. Yannacopoulos’ chargeable hours have declined since the
Accident. Mr. Spence testified that prior to the Accident he referred clients
to Mr. Yannacopoulos’ firm but that he has not done so since the Accident.

[89]        
Mr. Yannacopoulos relied upon the opinion of Kevin Turnbull, a chartered
accountant and economist, who identified a pre-Accident rate of growth in the
business of 9.4% compared to a post-Accident growth rate of .8% to June 30,
2014. Mr. Turnbull prepared calculations based upon a continuation of the pre-Accident
rate of growth to 2014 or for a 9.4% growth for two years followed by a growth
of 4.7% until the end of fiscal 2014. Mr. Turnbull assumed no growth in the
business following the end of fiscal 2014. Mr. Yannacopoulos’ submissions are
based upon the more conservative of these calculations.

[90]        
The defendant submits that Mr. Yannacopoulos has not established any
past income loss. Counsel concedes that Mr. Yannacopoulos took some time off
work in the immediate aftermath of the Accident and that he has missed, albeit
unquantified, time off work to attend medical appointments. However, because
Mr. Yannacopoulos is not an hourly paid employee, these absences do not
translate into a quantifiable past income loss. There must be evidence of a
lost opportunity to bill a client. The defendant submits that no such loss has
been identified.

[91]        
Counsel notes that Mr. Yannacopoulos has contended that he was forced to
hire more senior, highly qualified employees to look after the higher level
work that he previously handled himself. It is the case that Mr. Yannacopoulos
hired Ms. Johal who is an accountant with a Certified General Accountant
designation. However, the defendant notes that at the time of the Accident, Mr.
Yannacopoulos employed Trevor Lott who was completing his CGA designation. Mr.
Lott terminated his employment to pursue a different opportunity. Ms. Johal was
hired to replace him. Thus Ms. Johal’s hiring was not the result of the
Accident.

[92]        
In addition, Mr. Yannacopoulos testified that for many years he has been
making a transition in his business to higher end work that can be billed out
at a higher rate. He stated that he has been turning away potential clients who
required only bookkeeping services. The more sophisticated work required more
qualified employees. The defendant submits that the composition of Mr. Yannacopoulos’
staff reflects this change; he employs fewer bookkeepers and a more qualified
accountant who is capable of handling the higher level work.

[93]        
Mr. Turnbull rejected the contention that Mr. Yannacopoulos needed to
hire more labour as a result of the injuries sustained in the Accident. He
concluded that the percentage of revenue paid toward subcontracts, which were
the employee salaries in Mr. Yannacopoulos’ business, had dropped post-Accident.
He noted that “[t]his would seem to contradict Mr. Yannacopoulos’ assertion
that he needed to hire more labour as a result of the injuries sustained in the
accident.”

[94]        
Mr. Yannacopoulos testified that because of the Accident he is not able
to work the same hours that he did prior to the Accident. His counsel notes
that his chargeable hours have declined since the Accident.

[95]        
However, Mr. Yannacopoulos does not record the total number of hours he
works. There is accordingly no way to measure his pre and post-Accident hours. In
addition, he only recorded his chargeable hours for one year prior to the
Accident so there is no measure of his chargeable hours for an extended period
prior to the Accident. In the years 2005 to 2013, the firm’s total chargeable
hours declined from 6,034 in 2005 to 4,513 in 2008 and continued a general
trend of decline thereafter. This suggests that there are forces other than the
Accident responsible for any decline in hours worked.

[96]        
Ms. Johal’s evidence is that Mr. Yannacopoulos is in the office full
days, with few exceptions and works overtime during tax season. In any event,
Mr. Turnbull rejected Mr. Yannacopoulos’ hours as a measure of income loss and
I accept his reasoning in this regard.

[97]        
Counsel for the defendant submits that Mr. Yannacopoulos has not
established any loss arising from marketing activities, noting that as Mr.
McKay stated in his report, Mr. Turnbull did not conduct a review of the
business development activities either pre or post-Accident. There was no
analysis of client acquisition either pre or post-Accident.

[98]        
I find that Mr. Yannacopoulos has not established a past loss of income.
There were a number of changes taking place in the firm’s business that started
before the Accident and continued after. First, there was a general trend to
increase the hourly rates. The nature of the work was changing; Mr.
Yannacopoulos stated that he was trying to steer the business to what he
considered more complex and profitable work and away from pure bookkeeping
services. As part of this transition, while he was not necessarily “firing”
existing clients, he was turning away new clients who were seeking pure bookkeeping
services.

[99]        
Both of those changes would have the effect of increasing profits;
however there was also a clear trend, with some fluctuations, of an overall
reduction in billable hours charged out by the firm. This trend started well
before the Accident and continued after. This is a factor that depressed
profits.

[100]     Mr.
Turnbull acknowledged that a business such as Mr. Yannacopoulos’ would not
continue to expand indefinitely. However, the cut-offs that he chose were
entirely arbitrary and his analysis does not account for the other forces that
were impacting the profitability of the firm. In addition, as noted by the
defendant, there was no analysis of client acquisition before and after the Accident
and no analysis of how the other changes in the firm’s business might affect
the potential pool of referrals quite apart from the Accident.

[101]     In the
circumstances, I find that Mr. Yannacopoulos has not demonstrated that his firm
suffered a loss of income as a result of the Accident, nor has he established
that the firm lost the opportunity to increase its profitability as a result of
the Accident. I make no award under this head of damage.

Special Damages

[102]     The
plaintiff claims special damages in the amount of $19,936.69 to June 15, 2014,
together with an additional $781.73 to January 22, 2015. It was his positon
that the amounts claimed are reasonable and that all expenditures were the
result of his injuries caused by the Accident.

[103]    
The defendant submits that the special damages should be reduced to
account for the impact of the pre-existing degenerative condition. In addition,
the defendant submitted that the following expenses were not causally related
to the Accident or reasonable out-of-pocket expenses:

Mileage

The plaintiff has not provided any basis for his calculation
of $500. He has not detailed the distance he traveled to and from appointments.
Moreover, as the plaintiff was attending treatments prior to the accident, the
plaintiff would have incurred some of this cost in the absence of the accident.

Parking Re. Appointments with Dr. Gittens, Dr. Saujpal, Dr. Andreou,
and Dr. Adrian

…The defendant submits that the costs associated with
attending appointments with Dr. Gittens, Dr. Saujpal, and Dr. Adrian were costs
that the plaintiff would have incurred in the absence of the accident.

The appointment with Dr. Anderou, urologist, was for
treatment of pre-existing erectile dysfunction.

Impact Power Washing

The plaintiff’s health was deteriorating prior to the
accident, including his low back. The plaintiff would have likely incurred the
cost of cleaning and sealing his drive way in the absence of the accident. The
plaintiff also testified that he had installed a new driveway since the
accident and did not know how to seal it. It is submitted therefore that he
would have had to out source this task even if the accident had not occurred.

Workplace Resource Custom Office Desk Chair

No medical evidence was provided to support the necessity of
obtaining a custom office desk chair. No documentary evidence was indicated
showing that the custom office desk chair was a medical recommendation. The
plaintiff’s evidence was that it was his decision to purchase the desk chair on
a recommendation made to him by a friend.

SPARC BC – Disability Permit

The plaintiff has not proved that his current low back
symptoms are causally related to the accident. The plaintiff may have incurred
the expense of disability permit in the absence of the accident.

Sungod Physiotherapy

The plaintiff injured his right shoulder in 2012 while moving
a mattress. Some of the physiotherapy sessions claimed were used to treat this
unrelated shoulder injury.

Fitness World Gym Membership

The plaintiff was a member of a gym on and off prior to the
accident. The plaintiff had retained personal trainers prior to the accident.
The plaintiff would have likely incurred this expense in the absence of the
accident.

K.L. Elliott – Painting Exterior of the House

The plaintiff testified that he would at times touch up the
exterior of the house on weekends. He has never painted the entire exterior of
the house. The project took 18 hours to complete. It would not be economical
for the plaintiff to have completed the work himself. The plaintiff would have
likely retained someone in the absence of the accident to paint the entire
exterior of the house.

The Painter – Interior House Painting

The plaintiff’s son testified that the plaintiff did not
paint the inside of the house prior to the accident. The plaintiff’s wife
testified that the plaintiff would at times assist her with interior painting
but she did the majority of it. She stated that the last time they painted the
interior of the house was 12 to 15 years ago and that it was not something they
did on a regular basis. In fact, the plaintiff’s son testified that his uncle
owned a painting company and would have been retained to do the work as needed.
The project took 30 hours to complete. It would have been more economical for
the plaintiff to retain someone rather than do it himself.

MRI

No medical evidence was provided to support the necessity of
obtaining a private MRI scan in 2010 and again in 2012. No documentary evidence
was indicated showing that the private MRI scans were medical recommendations.
The plaintiff’s evidence was that it was his decision to receive a private MRI
so that he did not have to wait.

Car Washes

The plaintiff would have likely
incurred the expense of washing his vehicle in the absence of the accident.
Although he testified that he would have done so, it is unreasonable that the
plaintiff would have washed his car in the winter months prior to the accident.

[104]     I agree
with the defendant’s submission concerning mileage, the attendance at urologist
Dr. Anderou, the power washing, the painting of the interior and exterior of
his home, and the car washing claims. In the result, I award $14,744.97 under
this head of damages.

Loss of Future Earnings

[105]     Mr. Yannacopoulos
seeks an award of $850,000 which is roughly the mid-point between retirement at
age 65 and at age 70 in the more conservative of the assumptions relied upon in
Mr. Turnbull’s quantification. Mr. Turnbull had prepared projections of future
lost earnings based upon projected growth in the business. He projected two
scenarios for the future growth of business absent the Accident based upon a 9.4%
increase in sales to August 31, 2014 and based upon a 9.4% and 4.7% increase to
August 31, 2014, and contrasted those with the projections based upon
post-Accident performance.

[106]     Counsel
submits that the severe and disabling back pain has clearly rendered Mr. Yannacopoulos
less capable of earning income and less marketable. He has lost the ability to
take advantage of all opportunities and is less valuable to himself as a person,
thus meeting all four of the criteria in Brown v. Golaiy (1985), [1997] 26
B.C.L.R. (3d) 353 (S.C.).

[107]     The
position of the defendant is that Mr. Yannacopoulos’ physical functioning at
work and work capacity have not been affected by the Accident to such an extent
that future income losses are likely to occur. Counsel notes that his duties as
an accountant are sedentary. Mr. Yannacopoulos testified that his post-Accident
work life is relatively unchanged. His back pain is relieved by sitting and he
is able to work a full day taking breaks as needed to stretch.

[108]     I agree
with the submission of the defendant that Mr. Yannacopoulos’ physical functioning
and work capacity have not been affected by the Accident to such an extent that
future income loss is likely, with one qualification. The Accident has
accelerated the progress of the pre-existing degenerative condition. In the
result I find that there is a realistic possibly that as a result of the
cumulative effect of his chronic pain Mr. Yannacopoulos will retire sooner than
he would have chosen to do absent the Accident.

[109]     Mr.
Yannacopoulos testified that he loved his work and wanted to continue as long
as possible. It was his evidence that before the Accident there were no
limitations on his ability to do so. He stated that since the Accident he has
concluded that he will likely retire earlier than he would have preferred.

[110]     As noted
earlier, I have concluded that significant degenerative change was present in
Mr. Yannacopoulos’ original positon. I think that it is probable that the
pre-existing degenerative changes would have resulted in Mr. Yannacopoulos
choosing to retire earlier than would have been his choice absent chronic back
problems. However as noted, I have concluded that the Accident will likely have
an effect in the future in accelerating this progress.

[111]    
The assessment of damages is a matter of judgment based upon the
evidence, not a mathematical calculation: Rosvold v. Dunlop, 2001 BCCA 1
at para. 18. The approach to be taken by the court was described as
follows in that judgment by Huddart J.A, for the court, at para. 11:

[11]      The task of the court
is to assess damages, not to calculate them according to some mathematical
formula: Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12
B.C.L.R. (3d) 248 (C.A.).  Once impairment of a plaintiff’s earning capacity as
a capital asset has been established, that impairment must be valued.  The
valuation may involve a comparison of the likely future of the plaintiff if the
accident had not happened with the plaintiff’s likely future after the accident
has happened.  As a starting point, a trial judge may determine the present
value of the difference between the amounts earned under those two scenarios.
But if this is done, it is not to be the end of the inquiry: Ryder (Guardian
ad litem of) v. Jubbal, [1995] B.C.J. No. 644 (C.A.) (Q.L.); Parypa v.
Wickware, supra. The overall fairness and reasonableness of the award must
be considered taking into account all the evidence.

[112]    
As Mr. Justice Abrioux noted in Karim v. Li, 2015 BCSC 498 at
paras. 148-150, there are two approaches to the valuation, the earning
approach and the capital asset approach:

[148]    There are two possible approaches to assessing loss
of future earning capacity: (i) the earning approach (Pallos), or (ii)
the capital asset approach (Brown). Both approaches are correct and
their appropriateness in the circumstances depends on whether the loss can be
quantified in a measurable way: Perren v. Lalari, 2010 BCCA 140.

[149]    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 271; Gilbert at para. 233.

[150]    The capital asset
approach is employed when future loss cannot be measured in a pecuniary way.

[113]     I have
concluded that the present case does not lend itself to the earning approach. Mr.
Turnbull’s projections for the future are an extension of the approach he adopted
with respect to past loss of income. I have concluded that this approach is
flawed for the reasons I discussed in the section dealing with past loss.

[114]     The
difference between Mr. Yannacopoulos’ original positon and his likely future
post-Accident is an acceleration of retirement at some point in the future that
cannot at present be ascertained or estimated with any precision. In all the
circumstances, I award $50,000 with respect to loss of future earnings.

Cost of Future Care

[115]    
The plaintiff seeks an award of $11,386 to cover the following future
care costs:

[116]    
The positon of the defendant is that any award for future care should be
modest. In particular, the defendant submitted:

Radiofrequency Ablation

The plaintiff has indicated that he has no plans to pursue
this treatment in the near future as he has been informed that his chances of
it being successful is 50/50. He testified that he may elect to pursue the
treatment if the severity of his pain increases. Since the plaintiff has not
even decided if he will undergo the treatment, he is capable of waiting for it
to be performed publically at no charge to the plaintiff.

Physiotherapy/Exercise Program

The plaintiff attended physiotherapy and a gym prior to the
accident. He would have likely continued to do so, and so would have incurred
these costs without the accident. In addition, the plaintiff is currently
attending an exercise program for the purposes of losing weight and maintaining
good health and fitness as he did prior to the accident. This has nothing to do
with the motor vehicle accident.

The plaintiff has indicated that he did not experience any
relief with physiotherapy in the past.

Counselling

Future care costs for psychological support should not be
allowed, as there was no foundation supporting it in evidence. The court was
not provided with a psychological opinion.

Bidet Toilet Seat

The plaintiff has no plans to install a bidet toilet seat.

Pain Medication

The plaintiff is not currently
using any pain medication. He also testified that he did take Tylenol on
occasion before the accident.

[117]     I agree
with the defendant’s submissions with the exception of the cost for counselling
which is supported by Dr. Vondette and which Mr. Yannacopoulos has undertaken.
I award $2,000 for the cost of future care.

Loss of Future Homemaking Capacity

[118]    
Mr. Yannacopoulos seeks an award in the amount of $60,091 in relation to
this head of damages based upon the following:

[119]     Counsel
submits that the need for home and yard maintenance assistance is supported by
Dr. Vondette. Counsel cites Reynolds v. M. Sanghera & Sons Trucking Ltd.,
2014 BCSC 212; and Bruno, in support of an award under this head.

[120]     The
position of the defendant is that an award in the order of $2,000 to cover
occasional assistance for heavier jobs is the most which can be justified under
this head. Counsel notes that Mr. Yannacopoulos’ contribution to homemaking
prior to the Accident was limited to occasional vacuuming and assistance with
meal preparation. In addition, the plaintiff’s age, obesity, and pre-existing
degenerative conditions make it likely that he would require assistance with
heavier household tasks absent the Accident.

[121]     I am
satisfied that as a result of the Accident, Mr. Yannacopoulos has suffered a loss
in his capacity to perform household tasks. However, I agree with the
submission of the defendant that given Mr. Yannacopoulos’ other physical
challenges, he would require such assistance going forward in any event. The
effect of the Accident was to accelerate his need for such assistance. In the
circumstances, I have concluded that an award of the magnitude proposed by Mr.
Yannacopoulos is not supported by the evidence. In addition, as the majority
emphasized in Kroeker v. Jansen (1995), 4 B.C.L.R. (3d) 178 (C.A.) at
para. 29, leave to appeal ref’d [1995] S.C.C.A. No. 263, a cautionary
approach is to be taken with respect to such awards. In all the circumstances,
I award $10,000 with respect to this head of damages.

Summary

[122]     In summary,
I award the plaintiff the following:

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

“Ross J.”