IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150717

Docket: M113311

Registry:
Vancouver

Between:

John Jairo Vivas
Bellaisac

Plaintiff

And

Jordan Lucas Mara
Jason Tyrell Mara

Defendants

Before:
The Honourable Mr. Justice Funt

Reasons for Judgment

I.                
introduction

[1]            
The plaintiff is an uncomplicated man who enjoys life’s simple
pleasures, including those of hard physical labour.

[2]            
On July 6, 2009, the plaintiff was the seat-belted, front seat
passenger of a 2001 Dodge Dakota Sport pick-up truck, driven by Mr. Diaz, which
was stopped when it was rear-ended by a small station wagon operated by the
defendant, Mr. Jordan Mara and owned by the defendant, Mr. Jason Mara.

[3]            
The plaintiff states that he suffered injuries to his neck and back with
pain, tingling and numbness radiating to his feet. He also states that the
collision caused him headaches, sleep difficulties, and depression.

[4]            
The defendants have admitted that the collision was caused solely by the
negligence of the defendant, Mr. Jordan Mara, the driver of the station
wagon, but pleaded that the plaintiff suffered no injury, loss, damage or
expense as a result of the collision. At trial, the defendants admitted that
injuries resulted from the collision, but challenged the severity of the
injuries.

[5]            
The plaintiff did suffer injuries, including a significant chronic injury
to his lower back. With respect to the plaintiff’s back injury, the defendants
argued that the plaintiff had a pre-existing condition that would have shown
itself within five to ten years.

[6]            
For the reasons that follow the Court awards the following damages,
subject to structuring:

[7]            
The award is subject to the funds being held and payments structured to
help guard against avaricious persons.

[8]            
Unless these are matters of which the Court is not aware, the plaintiff
will be entitled to costs on Scale B.

II.              
The collision

[9]            
Defendants’ counsel in closing written submissions described the
collision as follows:

6.     The MVA
was a minor collision. It happened in rush hour, “stop and go traffic”. Mr. Diaz
and the Defendant came to a stop in a line of vehicles, and when traffic
started to move again, Mr. Diaz moved forward. The Defendant followed, and
travelled 100 meters or so when he noticed Mr. Diaz’ vehicle slowing down.
At that point, the Defendant had reached a speed of approximately 25 km/h, at
the most. The Defendant braked and slowed. The Defendant then saw Mr. Diaz’
vehicle stop suddenly, so the Defendant braked hard. Unfortunately, the
Defendant was unable to stop, and struck the Diaz vehicle. The Defendant
estimates that his speed at impact less than 10 km/h.

7.     Mr. Diaz,
of course, gave evidence that the impact was “pretty strong” his pick-up was lifted
and pushed forward “maybe half a car length”. However, there are many factors influencing
whether and how far a vehicle is pushed by an impact, and we have no information
regarding any of those factors (though Mr. Diaz and the Defendant both
noted that the weather was rainy; the Defendant said the roads were wet;
therefore, the road surface may have been slippery).

8.     Further,
we have no evidence regarding how robust or durable was the bumper on Mr. Diaz’
vehicle, how much force would be required to damage it, etc. Mr. Diaz gave
evidence that an engine bracket was broken (though not repaired by ICBC), and
in his view it was caused by the MVA. However, Mr. Diaz has no apparent
knowledge or experience in automobile repair (he has always worked in concrete
finishing and demolition), and just because one notices something after an
event, it does not mean the event caused that thing. Mr. Diaz’ evidence on
this point carries no weight.

9.     The
Defendant described the impact as minimal, and it is obvious from the damage to
the Defendant’s vehicle that the impact was light: the major damage is a crease
to the Defendant’s hood (shown in Exhibit 12), which did not prevent the
Defendant and his family continuing to drive the vehicle, unrepaired, for
several years.

10.  Most importantly, the
Plaintiff – the person whose experience of the MVA is at issue here – gave the
following evidence on Examination for Discovery:

Q. 79: When the collision occurred
was the vehicle you were in pushed forward by the impact?

A: No. It only moved
slightly.

Q. 80: So when the collision
occurred, the vehicle you were in only moved slightly; is that correct?

A: Yes.

Q. 81: So do you mean that it just
rocked forward and back but stayed in one place?

A: Yes.

11.  On cross-examination, the
Plaintiff stated he could not remember the questions and answers, nor could he
remember how the vehicle moved on impact. However, he confirmed that at
Examination for Discovery he answered truthfully.

12.  The Plaintiffs evidence
directly contradicts Mr. Diaz’, but is entirely consistent with the
Defendant’s evidence, and it is entirely consistent with the minor degree of
damage to the Defendant’s vehicle

13.  The Defendants also note
that the Plaintiff is an interested party: he has a pecuniary interest in the
outcome of this action; he has the burden to prove that his injuries and losses
resulted from the MVA; it is in his interest to suggest that the impact “strong”
(as he is doing now). However, at Discovery, he was clear that the impact was
such that the Diaz pick-up only rocked forward and back in the same spot.

[Verbatim]

[10]        
The Court rejects defendants’ counsel’s argument that the collision was
minor with only light impact.

[11]        
First, no basis exists for the innuendo that Mr. Diaz had a
preordained bias. Mr. Diaz and the plaintiff had first met approximately
two months prior to the collision. They were co-workers. Mr. Diaz had seen
the plaintiff approximately five times since the collision and on these
occasions only briefly (approximately five  minutes a time). The Court found Mr. Diaz
to be a forthright witness describing events truthfully and without bias. As
noted, Mr. Diaz found the impact to be “pretty strong”.

[12]        
Second, the Court found the plaintiff also to be a direct and forthright
witness who expressed matters simply. He described the impact as “strong”.
Immediately after impact the plaintiff felt pain with a burning sensation in
his lower back.

[13]        
Third, the defendant driver in examination-in-chief stated that he only
“nudged” the rear end of the pick-up truck. His understatement affects the
general reliability of his testimony. The station wagon’s creased hood (Exhibit
No. 12, Photograph 1) reflects collision forces greater than those that
would be created by a nudge.

[14]        
Fourth, the side view photograph of Mr. Diaz’s pick-up truck (Exhibit
No. 9, Photograph 17) shows a splayed rear bumper that was a result of the
collision. A pick-up truck is a rugged vehicle. A wallop would have been
required to cause the damage to the pick-up truck’s rear bumper. Whether the
pick-up truck was pushed forward a half a car length is of little consequence.
The hit was strong. Mr. Diaz testified that the bumper and broken licence
plate brackets (but not an engine bracket) were repaired by the Insurance
Corporation of British Columbia for approximately $2,000.

[15]        
In sum, the forces involved in the collision were not minor and the
Court finds that the defendant driver’s station wagon jolted the pick-up truck
sufficiently to cause the plaintiff’s injuries.

III.            
plaintiff’s background

[16]        
At the time of the accident, the plaintiff was 29 years old. He was born
and raised in Colombia. The plaintiff’s family in Colombia was not well off
financially. His father worked as a longshoreman and then as a security guard.
His mother sold second-hand clothes.

[17]        
At 22, the plaintiff graduated from high school. His schooling had been
delayed by work. While in school, he had worked carrying goods purchased at a
local marketplace and, subsequently, had worked as a blacksmith and welder. He holds
no formal certificate as a blacksmith or welder; he learned on the job.

[18]        
In 2006, the plaintiff left Colombia. The activities of paramilitary
gangs and drug cartels had led the plaintiff to believe that his life was in
immediate danger. He travelled through Central America, Mexico, the United
States, and, eventually, reached Canada. In January 2007, he walked across
the border into our country and sought refugee status here.

[19]        
In 2008, the plaintiff was granted refugee status. He has since become a
permanent resident. He has applied to become a Canadian citizen but has failed
the language test.

[20]        
When he left Colombia, the plaintiff planned to have his common law wife
and their young son follow him, as well as a son she had from a previous
relationship. The plaintiff testified that his injuries and inability to earn
sufficient income have prevented his family from emigrating. He understands
that his common law wife has now proceeded with her life, having lost faith in the
plaintiff’s ability to bring them to Canada.

[21]        
Since arriving in Canada, the plaintiff has tried to learn English. He
still speaks scant English. His evidence was given through an interpreter as
were his conversations with medical professionals, except where the
professional also spoke Spanish.

[22]        
In Canada, prior to the accident, the plaintiff was employed as a
demolition worker. As a demolition worker, he would remove flooring, fixtures,
drywall, asbestos, and other building materials and parts. The work involved
heavy physical labour and, frequently, the use of special tools and equipment.
He would often be required to work in small spaces, such as crawl spaces.

[23]        
As a demolition worker he earned between $14 and $20 per hour. He
enjoyed the work. The plaintiff was a hardworking and reliable worker with a
good and happy attitude.

[24]        
Mr. O. Sinisterra, the plaintiff’s employer at the time of the
accident, testified that the plaintiff was one of the “main guys” on his crew
and that he planned on  “keeping him”. Mr. Sinisterra also stated that, over
the five years prior to trial, there had not been a shortage of work.

[25]        
The plaintiff would attend regularly at a local church. He would help
with setting up and putting away chairs and tables, and assist with general
cleaning.

[26]        
Prior to the accident, the plaintiff would play recreational soccer,
jog, sometimes use a local gym, and freely engage in similar activities. He
also helped Ms. Arroyo, a friend he met through the church, with
renovations to her home (without pay). Ms. Arroyo assists recent
immigrants acclimatize to Canada.

IV.           
Pre-accident health

[27]        
The plaintiff’s pre-accidental health was unremarkable. He was a strong,
physically active man. In 2008, he had had groin and stomach pain which caused
him to miss work. The symptoms improved and the plaintiff returned to work. In
2008, he also had had minor shoulder pain which resolved after approximately three
months.

V.             
injuries suffered

[28]        
The plaintiff suffered injury to his neck and back. The most significant
injuries were to his L5/S1 disc (in the lower back) and soft tissue in his
lower back.

[29]        
The neck injury resulted in neck pain and headaches. The neck injury,
for the most part, resolved itself (it now only hurts if he turns quickly). His
headaches, which had been severe, have also resolved.

[30]        
The plaintiff’s most predominant injury is to his lower back. The
plaintiff has difficulty sitting, walking, standing and lifting. His condition
has worsened since the collision. He has pain down his legs, especially his
left leg, and also experiences numbness, tingling and cramping.

[31]        
As a result of his pain, the plaintiff has sleeping difficulties and has
developed depression and chronic pain syndrome.

[32]        
The plaintiff is not a malingerer. He has worked hard to get better. He
has diligently followed the recommended exercises designed to alleviate his
pain. Ms. L. Craig, who was qualified at trial to provide expert evidence
as a functional capacity evaluator, testified that the plaintiff gave “full
effort”. Ms. T. Berry, an occupational therapist, found the plaintiff
knowledgeable with the exercises he performed at home (some of the exercises
the plaintiff obtained from the internet).

[33]        
The plaintiff has been prescribed many drugs in an effort to address his
physical pain and his depression. He has received injections to his lower back
area in order to address his lower back pain (with, at best, only temporary
relief).

[34]        
The plaintiff is resolute. He has worked part time as a demolition
worker since the accident, but with difficulty, and often is forced to leave
work or work shorter hours because of his pain. At trial, he was on employment insurance
(medical leave).

VI.           
medical evidence

[35]        
The Court reviewed medical-legal reports and heard testimony from
qualified medical experts: Dr. J. Benitez-Lazo (General Practitioner); Dr. J.
Fuller (Orthopaedic Specialist); Dr. D. Gouws (Occupational Health Physician);
Dr. R. O’Shaughnessy (Psychiatrist); Dr. K. Solomons (Psychiatrist);
and Dr. C. Fisher (Orthopaedic Surgeon). The Court also had an expert
report and heard testimony from Dr. M. Freeman, a medical scientist, with
respect to epidemiology.

A.             
Back Injury

[36]        
Dr. J. Fuller was called by the plaintiff. Dr. Fuller’s key
opinions with respect to the plaintiff’s back are set forth in paragraphs 41
and 43 of his March 18, 2014 report:

41. With
reference to the low back, the primary finding remains a significant L5-S1 disc
protrusion now detected both on CT scan taken at Surrey Memorial Hospital on February 22^nd
and further MRI of the lumbosacral spine taken at Surrey Memorial Hospital on July 7,
2012. He also presents with a further CT scan of the lumbosacral spine taken at
Jim Pattison Outpatient Clinic October 17, 2012. These further
investigations merely confirmed the presence of the L5-S1 disc with probable
compromise to the S1 roots. His clinical presentation at this juncture is more
suggestive of compromise to the left S1 root in that he presents with weakness
of calf musculature. He demonstrates at this juncture a degree of root tension
on the left, probably involving the left S1 root. There is the probable
hyperactivity of the left ankle reflex. There is also numbness of the sole of
the left foot and weakness of plantar flexion/pointing the foot downward. All
these signs involve the S1 root. There therefore appears to be little reasonable
discussion as to the cause of his persistent symptoms.

43. As has been
previously discussed, he has really exhausted conservative/nonoperative
therapeutic options. On the other hand, he is a poor candidate for surgical
intervention. It is now four years and eight months since the motor vehicle
accident of July 6, 2009. His symptoms can therefore be considered to be
established and it is probable that the trauma to the left S1 root is
irreversible. It is also significant that his primary concern has been low back
pain. The results of discectomy/removal of a protruding disc are less
successful when directed towards low back pain as opposed to severe sciatic
pain. He can therefore be considered to have reached maximal medical recovery
as was indicated in my previous report of April 13, 2012 page nine,
paragraph 45. I would in fact strongly oppose surgical intervention at
this juncture in that the prognosis for success is indeed poor.

[37]        
In his April 13, 2012 report Dr. Fuller opines on causation:

13. In the accident
of July 6, 2009 he was the seat-belted front seat passenger in a small van
that was rear-ended by a small car. There would therefore have been an overload
to his axial skeleton/neck and back initially in extension/backward bending
against the seat back and headrest followed perhaps more significantly by
flexion/forward bending against the seatbelt. Unfortunately the seatbelt does
not protect the cervical spine from this type of overload that would be
sufficient to cause a degree of musculoligamentous trauma that in its turn is
associated with a degree of protective reflex muscle splinting which can, in
and of itself, become painful. The lumbosacral spine/low back, is also
vulnerable in that the pelvis is relatively fixed by the lap section of the seatbelt
while some motion of the trunk into flexion/forward bending and rotation over
the diagonal of the seatbelt is possible. An overload to the lumbosacral
spine/low back would have occurred with the significant possibility of trauma
to the distal/lower discs in the lumbar spine and/or compromise to the
sacroiliac complex; the sacroiliac complex being the combination of joints and
ligaments between the sacrum/tailbone and ilium/pelvis. It is of note that he
gives a history of feeling something pull in the low back at the time of impact
which was followed by low back pain.

14. It is also
of note that according to the clinical records of Dr. Jose Benitez-Lazo
that this patient consistently and persistently complained of low back pain
through the clinical notes extending from July 9, 2009 through to June 14,
2011. A CT scan dated February 22, 2011 shows a significant L5-S1
posterior/backward disc protrusion with some displacement of the S1 nerve root,
the S1 nerve root being the nerve that goes down the back of the leg to the
sole of the foot. Given that this patient’s symptoms have been essentially
consistent since the motor vehicle accident of July 6, 2009 up to the time
of the CT scan, it appears reasonable to suggest that this patient’s symptoms
can be related to this disc protrusion. There is, of course, no reasonable way
of determining whether the disc protrusion pre-existed the motor vehicle
accident of July 6, 2009. It does, however, appear reasonable to suggest
that a disc protrusion occurred at the time of impact given his sensation of
something giving way in the low back or given that the disc protrusion predated
the motor vehicle accident it appears that it was aggravated to the extent of
becoming significantly symptomatic.

39. As already discussed under ‘Causation’
this patient’s axial skeleton/neck and low back would have been subjected to an
excessive physical load in the accident of July 6, 2009. Loading was
initially in extension/backward bending against the seat back and headrest
followed by flexion/forward bending against the seatbelt. These forces would be
sufficient to cause a degree of musculoligamentous injury to the structures
supporting the cervical spine/neck together with a degree of protective reflex
muscle splinting which can in and of itself become painful. As indicated, the
cervical spine is not protected from these forces by the seatbelt. The
lumbosacral spine is similarly not truly protected in that there is room for a
degree of motion of the trunk and in particular in flexion/forward bending and
rotation, in his case to the right, around and over the diagonal section of the
seatbelt, again causing a degree of musculoligamentous injury to the structures
supporting the lumbosacral spine and L5-S1 disc.

[38]        
Dr. C. Fisher was called by the defendants. In his July 10,
2014 report, Dr. Fisher states (p.3):

As mentioned in my independent medical legal
evaluation of March 12, 2014 the mechanism of injury from the motor
vehicle accident of July 6, 2009 was an acceleration/deceleration force of
low to moderate energy, I would agree with Dr. Fuller that this
mechanism resulted in soft tissue injures to the neck, thoracic and lumbar
spine. I would not agree with Dr. Fuller, however, that the lumbar
spine and specifically the lumbar L5-S1 disc is particularly susceptible to
this mechanism of injury. The initial major mechanism with this injury is
acceleration which causes an extension force to the neck and lower back and one
in which his back would fall against the seat. There would be no torsional or
axial load component to this. The secondary mechanism is one of flexion forward
and this is the deceleration component. This again, in my opinion, is not a
common mechanism for lumbar disc injury especially at the L5-S1 level which fits
low in the pelvis and is relatively protected from this force. The most common
mechanism for a lumbar disc injury is a combination of torsion with axial
loading. This was not a mechanism as a result of the motor vehicle accident.

With respect to the statement that the disc protrusion
occurred at the time of impact I would also respectfully disagree with Dr. Fuller’s
opinion. As stated above, the mechanism of injury is not consistent with a disc
protrusion. Furthermore, lumbar disc protrusions are more likely than not the
result of a cumulative effect of stresses and strains to the lower back, rather
than one particular event. Repetitive strains create small anular tears that
eventually result in the disc protrusion or herniation and the patient becoming
symptomatic. In my opinion the motor vehicle accident may have aggravated
pre-existing degenerative changes in the low back, specifically the L5-S1
level, but it did not cause the disc protrusion. This is discussed in greater
detail on page 11 and 12 of my medical legal evaluation dated March 12,
2014.

[The Court’s emphasis]

[39]        
In his earlier March 12, 2014 report, Dr. Fisher describes
matters as follows (p.11):

Imaging studies demonstrate L5-S1 degenerative disc changes,
including a central disc protrusion contacting the traversing S1 nerve roots
but not causing significant nerve compression. In my opinion, the motor vehicle
accident of July 6, 2009 has probably aggravated the pre-existing
degenerative changes. The natural history of aggravation of degenerative
changes would be for them to get better in a 6 to 12 month period of time. The
degenerative changes seen on imaging studies were not caused by the motor
vehicle accident. In my opinion, the motor vehicle accident more likely than
not did NOT cause an acute broad central disc protrusion in the setting of
L5-S1 degenerative changes. The mechanism of injury was a low energy
acceleration/deceleration mechanism; this is not a common mechanism to cause
acute disc protrusions. Furthermore, lumbar disc protrusions are more
likely than not the result of a cumulative effect of stresses and strains to
the lower back, rather than one particular event. Repetitive strains create
small annular tears that eventually result in the disc protrusion or herniation
and the patient becoming symptomatic.

[The Court’s emphasis]

[40]        
In his March 12, 2014 report, Dr. Fisher describes his
understanding from the plaintiff’s description of the collision as follows
(p.4):

On July 6, 2009, Mr. Bellaisac was a front seat
passenger in a mid size car, wearing a three point restraint, with
appropriately adjusted headrest. He believes he was looking straight ahead. The
vehicle was struck from behind. He felt it was not severe energy, but not
light either, probably “medium”. He did not get out of the car but the
driver got out and exchanged insurance information. He thought there was
significant damage to the vehicle but they were able to drive the vehicle from
the scene. He reports having immediate low back pain after the car contacted
them. His neck and upper back region was not really sore until the next day or
so. His back was the predominant symptom.

[The Court’s emphasis]

[41]        
In cross-examination, Dr. Fisher testified:

Q         And, Doctor, if I were to tell you that
— that yesterday in trial we had the driver of the vehicle that Mr. Bellaisac
was in, in the same chair that you’re in, actually, and he were to have given
evidence that it was a hard impact and that his 2001 Dodge
Dakota that Mr. Bellaisac was seated in was actually propelled forward
half a truck length, you’d agree with me that — that doesn’t sound like a low
— low-energy impact, does it?

A          Well, if that — if that’s
his description of it, you know, what — there’s so — there’s so many
variables, I can’t — it’s difficult for me to comment. Like if he was
pushed forward, did he have his foot on the brake? You know, was — I mean
—

Q         Yeah.

A          — I think you’re — you’re
asking a — a question that’s difficult.

Q         Yeah, absolutely it is
difficult. But, you know, I think because you used a descriptor in your
report — you know, if — if during the same testimony we were to review
pictures that showed that the bumper had actually — you know, there’s a
significant dent in the middle of the bumper and if the sides of the bumper had
actually come away from the body of the truck, that’s more in keeping with a —
with a high-energy impact than a low- energy impact; is that fair to say?

A          Well, not really. I mean,
I — I think you have to make it relative to me and — and what —
what I see in the — in the range of — of motor vehicle accidents in my
experience. So, you know, I see a spectrum of very high-energy serious
high-speed motor vehicle accidents on a highway and — and then see patients
who had, you know, a minor fender bender. And so I tend to put it in that
range. So — and again, as the — the definitions are ill defined. So my
opinion, you know, comes of the energy based on the things we’ve alluded to,
but my reference scale may be different —

Q         Right.

A          — than the driver of that car —

Q         Yeah.

A          — or someone else.

Q         Yeah. And — and to — to be fair, your reference
scale might be incorrect, actually, when you’re — when you’re considering that
you weren’t there and, you know, yesterday someone testified to something that
was very different from what I — I would take to be
a low-energy impact.

A          Yeah.
This is my opinion based on the information I had.

[42]        
The Court finds Dr. Fuller’s opinions to be more reliable than Dr. Fisher’s
opinions. Dr. Fisher’s underlying assumption that the collision was “low
energy”, “low to moderate energy”, or on a spectrum nearer to a “minor fender
bender” is not supported by the evidence at trial or that which the plaintiff
had told Dr. Fisher.

[43]        
The key issue is whether the plaintiff had a pre-existing condition that
would have caused the plaintiff’s symptoms to arise at some time in the future regardless
of the accident. In other words, does the “crumbling skull” rule  apply (Athey
v. Leonati, [1996] 3 S.C.R. 458 at para. 35)?

[44]        
Dr. Fisher was of the opinion that, if the plaintiff had not
experienced the collision, within five to ten years the plaintiff would have
suffered the symptoms he now endures. Dr. Fisher, in his March 12,
2014, report states:

Mr. Bellaisac was employed
as a heavy laborer in the construction/demolition business for several years
prior to the motor vehicle accident. The physical stresses of that particular
job would more likely than not have resulted in repetitive strains to the
lumbar spine and specifically the discs. His job also would have a significant
likelihood of aggravating his degenerative changes. Because the motor vehicle
accident mechanism was not characteristic of causing a disc protrusion and
would be a relatively mild aggravation of his degenerative changes Mr. Bellaisac
more likely than not would have gone on to get low back pain symptoms had he
not been in the motor vehicle accident; probably within the next 5 years. The
fact there was no change in the CT scans done 20 months apart
after the motor vehicle accident further supports that a significant injury to
the lumbar spine did not occur. A significant or serious injury to the lumbar
spine from the motor vehicle accident would probably have precipitated some
further degenerative changes at the L5-S1 level.

[45]        
Dr. Fisher, in his June 17, 2014 report,
expands on what he meant:

By “gone on to get low back
symptoms”, I specifically mean that he would have gone on to get low back
pain and lower extremity symptoms similar to those that he is currently
experiencing. In my opinion these symptoms would probably have commenced
approximately 5 years after the accident and progressed to the level they are
currently at over the next 5 years. In other words he would be at the same
level of symptoms and disability he is currently at (at corresponding to the
time of my clinical evaluation) 5 to 10 years after the date of the accident,
had he not been in the accident. The primary reason for the onset of symptoms
at 5 years and subsequent progression to disabling low back
pain over the next 5 years is the physical stresses imposed on his back by such
a physically demanding job.

[46]        
The Court finds that the crumbling skull rule does not apply. The Court does
not find that there was “a measurable risk” that the plaintiff would develop
back symptoms similar to those experienced following the accident: Athey,
para. 36. In this regard, the Court notes the following:

a)             
prior to the collision, the plaintiff had no lower back symptoms;

b)             
the plaintiff first experienced lower back symptoms immediately after
the accident;

c)              
there were no base level CT scans or MRIs (i.e. scans or images of the
plaintiff’s lower back prior to the collision);

d)             
the first CT scan (or MRI) was taken 20 months after the collision;

e)             
the CT scans and MRIs did not show abnormal degeneration on other parts
of the spine;

f)               
Dr. Fisher in cross-examination, quite properly, agreed that he
could not say with certainty that the plaintiff had chronic degenerative
changes at L5-S1 of his back prior to the collision; and

g)             
Dr. Fisher in cross-examination, quite properly, agreed that even
if the plaintiff had the degenerative back changes, the plaintiff could have
experienced no future symptoms.

[47]        
Dr. Fisher’s view was that the disc protrusion was not likely caused
by the collision. In written submissions, defendants’ counsel states:

52. Nowhere in his reports does Dr. Fisher
say rear-end collisions cannot cause low back injuries; nowhere does he say
they cannot cause lumbar disc protrusions, and he confirmed this in his
evidence at trial. What he says, applying his knowledge of the literature and
his own clinical experience, is that a rear-end collision such as the one at
issue here is less likely to cause a disc bulge than is long-term, repetitive,
heavy work,

[48]        
In cross-examination, Dr. Fisher also testified:

Q         You know, and in your report, my friend
alluded to it during your direct exam, but you say that Mr. Bellaisac may
have gone on to experience symptoms of disability within 10 years of the
accident, even if the accident didn’t happen. Now, Doctor, to — to be fair to Mr. Bellaisac,
you don’t know when Mr. Bellaisac would have gone on to experience these
symptoms, do you?

A          Well, no, I —
I don’t have a crystal ball. It’s simply based on — on all the facts and assumptions
surrounding Mr. Bellaisac’s health, the accident, his symptoms subsequent
to that, and I rendered and formed an opinion based on that.

[49]        
As Dr. Fisher’s testimony makes clear, his opinion is based to some
measure on his assumptions regarding the accident. As described above, Dr. Fisher’s
assumption regarding the energy associated with the collision was not supported
by the evidence at trial.

[50]        
 Assuming that the plaintiff had a disc protrusion prior to the accident
(and it is unknown whether he did), the Court does not find Dr. Fisher’s
opinion that the plaintiff would have experienced similar symptoms to those
resulting from the collision within five to ten years sufficiently reliable to
conclude that there was a measurable risk. As noted, Dr. Fisher assumed that
lesser forces were involved in the collisions that those proven at trial.

[51]        
Dr. M. Freeman, a medical scientist, was qualified to provide
expert testimony with respect to epidemiology regarding forensic medicine. He
had prepared a rebuttal report to Dr. Fisher’s reports. The Court found Dr. Freeman’s
testimony and report to be interesting but not sufficiently specific to provide
assistance in the case at bar.

[52]        
The testimony and reports of Dr. Benitez-Lazo, the plaintiff’s family
physician, were consistent with Dr. Fuller’s opinion; they also do not lead
the Court to find a measurable risk that the plaintiff would have, in any event,
suffered his lower back symptoms within five to ten years.

B.             
Depression

[53]        
Dr. O’Shaughnessy was called by the plaintiff. In his October 22,
2012 report, Dr. O’Shaughnessy opines:

Diagnostically, he
meets the criteria for the following:

1.     Major Mood
Disorder, likely in partial remission on medications.

2.     Adjustment
Disorder with Depressed Mood.

A Major Mood Disorder is a Clinical Depression manifested by
sustained depression and generally accompanied by significant physiological
symptoms. In review of materials, this appeared to have emerged in 2011 in
large measure secondary to the above-noted stressors. As above, in my opinion,
his depression is directly related to the downstream effects of the accident,
i.e. the chronic pain, inability to work, financial stressors, and resultant
social losses.

An Adjustment Disorder is a psychiatric illness in which
individuals experience significant symptoms of anxiety and/or depression
causing dysfunction that are in direct response to an identifiable stressor. In
this instance, this seems to be an ongoing driving factor in his dysphoric
mood. The stressors again are quite substantial, including the above-noted
issues. As noted, it is very difficult to determine whether in fact he
continues to actually experience symptoms of Clinical Depression or Adjustment
Disorder. In practice, this is somewhat of a moot issue in any event because
the treatments for both his depression and his Adjustment Disorder would demand
some significant changes in his social functioning in order to recover.

I agree with Dr. Benito-Lazo’s
choice of medications and think they should continue for the foreseeable
future. It is likely that were he to discontinue this medication there would be
a relapse of his depression.

[54]        
In his June 12, 2014 report, Dr. O’Shaughnessy states (in
part):

…I do not think
psychological factors have been playing a significant role in the generation or
perpetuation of his complaints of pain and in fact rather it is the reverse,
i.e. that his low back pain is the central problem resulting in subsequent
emotional difficulties.

and,

At this point, there needs to be thought given to retraining
this man. I note Dr. Fuller’s opinion that he did not think it likely
he would be able to tolerate working in heavy labour such as demolition on an
ongoing basis and I defer to his judgment clinically. Practically
speaking, I think it is pretty clear this man is experiencing significant
pain with the physical demands of the job and has not been able to work full
time with the result that he has been very limited in his financial stability.
I am not clear whether he has any transferable skills
although it appears unlikely. At this point, a vocational assessment with
consideration of retraining and/or some future different occupation needs to be
undertaken.

His prognosis
regarding his moods will be very poor as long as he is experiencing chronic
pain that limits him from being able to return to work and attain financial and
economic stability. I recognize Dr. Fuller is of the view that there
are no other treatments that could be available and that he will be left with
permanent difficulties. Accordingly, I would recommend retraining and
getting him out of the heavy physical labour field into something more
tolerable that hopefully can lead to a reasonable wage, allowing him to attain
financial security. If the pain were to be reduced and/or his social
circumstances improved, his mood would be substantially better. In the absence
of any improvement in these two factors, I would anticipate he will have
chronic depression that will require ongoing antidepressant medications for the
foreseeable future.

[55]        
Dr. Solomons was called by the defendants. In his April 18,
2014 report, Dr. Solomons opines:

In my opinion the ending of the relationship with his
girlfriend and mother of his child, not being able to live with her and with
his son and financial stress from not working were likely factors that
contributed to his depression. The accident did not in my opinion contribute
directly to his depression; however, it is possible that it contributed
indirectly by interfering with his earnings.

Besides apprehension about further accidents, which was a
normal and self-limiting reaction to the accident, Mr. Bellaisac did not
develop any other psychological or psychiatric difficulties from the accident.

In my opinion Mr. Bellaisac’s depression was mild, and
he was not impaired or limited by it or by any other psychiatric sequelae of
the accident.

Treatment Recommendations and Prognosis

Mr. Bellaisac appears to have received appropriate
treatment for his depression in the form of antidepressant medication. His need
for this treatment is short-term, and he will if likely not need it beyond a
few more months. In my opinion he has no requirement for psychotherapy or
counselling arising from the accident.

Since depression is a treatable
condition and his depression is mild, his prognosis is excellent. Since
finances are, by his account, the most significant determiner of his mood,
remaining employed and maintaining some measure of financial independence ought
to be sufficient to maintain his healthy mood state.

[56]        
After reviewing the reports of Dr. O’Shaughnessy and Dr. Solomons,
and having heard testimony from each of them, the Court finds Dr. O’Shaughnessy’s
opinion to be more reliable and, accordingly, of greater assistance to the
Court. Dr. Solomons took a more cross-sectional approach where Dr. O’Shaughnessy
took a more longitudinal approach, which better accounted for the waxes and
wanes in the plaintiff’s depression.

[57]        
The Court adopts Dr. O’Shaughnessy’s observations from his July 15,
2014 rebuttal report:

7. Having
reviewed the report of Dr. Solomons, I note that there are two major
differences in our opinions. These include:

1. Dr. Solomons
describes fewer and less intense symptoms of Clinical Depression than I noted
in my examinations in 2012 and earlier in 2014. Likewise, he reports fewer
symptoms of depression than are seen in Dr. Mallavarapu’s report in 2013
and in the records of his family doctor. When one looks at chronic illnesses
such as Major Depressive Disorder (Clinical Depression), one never only looks
on a cross- sectional interview but rather at the longitudinal evolution and
change of symptoms I over time. Dr. Solomons based his opinion in
large measure on the cross-sectional examination he conducted in which he did
not think Mr. Bellaisac was showing significant symptoms
of depression during his interview. If one looks at the longitudinal picture from
2011 onward, it is clear that this man has had fluctuating symptoms of
depression over time that have been altered through a combination of
medications when he is able to afford them as well as ongoing psychosocial
stresses, chronic pain, and interference with physiological functioning such as
sleep, exercise, etc. In my view, Dr. Solomons has minimized the extent of
symptoms to conclude that this man has only mild depression. I agree that
at times his depression has been mild but at other times it has been more
serious and certainly causing significant interference. I do not think Dr. Solomons’
opinion that there is no disability associated with the depression is an
accurate reflection of the clinical data over time and I disagree with his
conclusion.

2. Issues of Causation: Dr. Solomons has
opined that the accident did not directly cause the depression and I agree.
As noted in my earlier report, however, it has been a “material cause” leading
to his depression insofar as the accident caused significant physical injuries
that in turn led to chronic pain as well as restriction in his abilities to
work and earn income that in turn were the critical factors triggering his
depression. While Dr. Solomons acknowledges that since the accident he has
not been able to earn money, he fails to appreciate the role of chronic pain in
the genesis of this man’s depression. In addition, from my review of his report
he appears to understate the significant psychosocial disruption that has
occurred and in particular the distress associated with not being able to
support his girlfriend and son to immigrate to the country that in turn led to
the breakdown in his relationship with his ex-girlfriend and the inability for
this man to see his son. Likewise, he has failed to address the issues related
to his pain that has limited Mr. Bellaisac’s social activities; i.e. he is
no longer able to play sports or engage in demanding physical activities that
he previously enjoyed with the result that it has altered his social
functioning. He has also failed to account for the disrupted sleep patterns
related to the pain that also have a significant impact on genesis and
perpetuation of Clinical Depression symptoms.

VII.          
Future Occupational opportunities

[58]        
As noted, the Court had reviewed expert reports and testimony from Dr. Gouws,
an occupational health physician and Ms. L. Craig, a functional capacity evaluator
who is a physiotherapist. Mr. D. Nordin, a qualified vocational
psychologist, was also qualified to provide expert evidence. The Court reviewed
reports and heard testimony from Mr. Nordin.

[59]        
From the reports and the testimony, it is readily apparent that the
plaintiff’s future earning capacity has been greatly reduced. Prior to the
accident, the plaintiff was a strong man who enjoyed hard physical work and the
associated camaraderie. The experts make clear that the plaintiff’s other
occupational opportunities are very limited. He will not be able to sustain
heavy physical work on a regular basis. He has very poor English language
skills. Mr. Nordin scored the plaintiff’s English level abilities at Grade
3 and Grade 1 for reading and spelling respectively. His mathematical abilities
were also low (approximately Grade 4).

[60]        
Independent of his language limitations, the plaintiff’s problem solving
abilities were also determined by Mr. Nordin to be low.

[61]        
Mr. Nordin was of the opinion that the plaintiff likely would not
be able to cope with Canadian post-secondary courses or the vocational training
to become a certified welder. Mr. Nordin in his June 20, 2014 report
states:

67. Absent the
ability to continue with labouring work, Mr. Bellaisac’s options will be
limited to some level “D” occupations that do not require much use of English
(examples being Parking Lot Attendants or Service Station
Attendants). These positions typically pay minimum wage ($10.25/hr) or
slightly above.

68. That said,
the practical reality, in my opinion, is that if Mr. Bellaisac finds he
has to leave labouring work, he is at significant risk for protracted
unemployment.

69. In light of my inability to recommend
either re-training nor sedentary work options, Mr. Bellaisac’s best route,
at present, may be to stay with his reduced hours at Proactive and cope as best
he can. I reiterate my concerns, however, that this situation may not be sustainable
over the longer term.

[62]        
Ms. L. Craig also found that the plaintiff did not meet the
physical requirements of a Demolition Person (National Occupational
Classification #7611).

[63]        
Dr. Gouws, who was qualified at trial to provide expert evidence
with respect to occupational health, in his June 23, 2014 report opines:

93. … It is my opinion that his
ongoing pain, associated functional limitations and emotional comorbidities
have had a significant impact on his ability to perform occupational and
nonoccupational activities and places him at high risk for occupational
burnout, especially if he works in an occupation where he does not really meet
the physical demands.

[64]        
In the witness box, the plaintiff provided his evidence in a simple and
direct manner. As noted, he is an uncomplicated man with simple wishes, in line
with his vocational test scores.

[65]        
In sum, the plaintiff’s future occupational opportunities are limited,
may not be available, and will probably be low-paying.

VIII.        
damages

A.             
Non-Pecuniary

[66]        
In Stapley v. Hejslet, 2006 BCCA
34, our Court of Appeal sets forth some of the factors which may be
considered in determining an award of non-pecuniary damages:

[46] The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

I would add the following factors, although they may arguably
be subsumed in the above list:

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

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

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

[67]        
The jurisprudence with respect to awards of non-pecuniary damages is
particularly fact-specific. Plaintiff’s counsel referred me to the following
cases for guidance: Cantin v. Petersen, 2012 BCSC 549; Slocombe v.
Wowchuk, 2009 BCSC 967; and Sekihara v. Gill, 2013 BCSC 1387.

[68]        
Plaintiff’s counsel states that an appropriate award would be $140,000.

[69]        
Defendants’ counsel suggests an award in the range of $75,000 to
$100,000 before a reduction based on the “crumbling skull” rule. As noted, the
Court has rejected the argument that the “crumbling skull’ rule applies in the
case at bar.

[70]        
With respect to quantum, defendants’ counsel referred the Court to the
following cases:

MacAulay v. Field, 2014 BCSC
937;

Carreon-Rivera v. Zhang, 2014
BCSC 709;

Roberts v. Scibner, 2009
BCSC 1761;

Poirier v. Aubrey, 2010 BCCA
266;

Carr v. Simpson, 2010 BCSC
1511.

[71]        
The Court will award the plaintiff $140,000 in non-pecuniary damages. In
considering the various factors, the Court has placed particular weight on the
plaintiff’s age, which favours an award larger than if he were much older. He
will be living with chronic back pain and fluctuating chronic depression for
the rest of his life.

[72]        
In making the award, the Court considered the fact that Dr. Fisher,
in his March 12, 2014 report, mentions the possibility of surgery. As
noted, in his April 13, 2012 report Dr. Fuller states:

43. As has been previously discussed, he
has really exhausted conservative/nonoperative therapeutic options. On the
other hand, he is a poor candidate for surgical intervention. It is now four
years and eight months since the motor vehicle accident of July 6, 2009.
His symptoms can therefore be considered to be established and it is probable
that the trauma to the left S1 root is irreversible. It is also significant
that his primary concern has been low back pain. The results of
discectomy/removal of a protruding disc are less successful when directed
towards low back pain as opposed to severe sciatic pain. He can therefore be
considered to have reached maximal medical recovery as was indicated in my
previous report of April 13, 2012 page nine, paragraph 45. I would in
fact strongly oppose surgical intervention at this juncture in that the
prognosis for success is indeed poor.

[73]        
With Dr. Fuller’s opinion in mind the Court finds that the future
possibility of lower back surgery is not a real and substantial possibility.

B.             
Past Wage Loss

[74]        
At the time of the collision, the plaintiff was working for approximately
$19 per hour. The evidence reflected a range. The Court has used $19 per hour,
which includes benefits such as vacation pay to calculate past wage loss.

[75]        
As noted, the plaintiff was viewed as hardworking and reliable. During
the period from the date of collision to trial, the evidence established that
there was a healthy demand for demolition work and demolition workers.

[76]        
The fact that the plaintiff has worked since the collision, despite
enduring pain and the risk of occupational burnout (as Dr. Gouws
describes), satisfies the Court that the plaintiff, but for the collision, would
have worked full time.

[77]        
The Court will, in making its calculations, assume 50 full time weeks of
work per year and a wage of $19 per hour for 2009 and 2010, $20 per hour for
2011 and 2012, and $21 per hour for 2013 and 2014. The increases reflect the
fact that the plaintiff was viewed favourably by his employers and co-workers.
In order to be conservative the Court has not included potential overtime pay.
The Court has also not included potential promotions as a result of his poor
English skills.

[78]        
In calculating the past wage loss, actual earnings and social assistance
are deducted. The Court’s calculations are set forth in the table below:

[79]        
The Court will reduce the $135,276 by 15% in order to take into account
income tax and statutory deductions. The net figure is, rounded, $115,000
($135,276 x 85% = $114,984).

C.             
Loss of Income Earning Capacity

[80]        
In Perren v. Lalari, 2010 BCCA
140, our Court of Appeal sets forth, at para. 32, the rule that
there must be a “real and substantial possibility of a future event leading to
an income loss” before assessing the loss. The loss may be quantified using the
earnings approach or the capital asset approach.

[81]        
In Rosvold v. Dunlop, 2001 BCCA
1, our Court of Appeal states:

[9] Because damage awards are
made as lump sums, an award for loss of future earning capacity must deal to
some extent with the unknowable. The standard of proof to be applied when
evaluating hypothetical events that may affect an award is simple probability,
not the balance of probabilities: Athey v. Leonati, [1996] 3
S.C.R. 458. Possibilities and probabilities, chances, opportunities,
and risks must all be considered, so long as they are a real and substantial
possibility and not mere speculation. These possibilities are to be given
weight according to the percentage chance they would have happened or will
happen.

[82]        
Using the earnings approach to assess the loss of earning capacity, the
Court has assumed that the plaintiff would have worked until age 60. The
plaintiff’s realistic economic asset was his ability to undertake unskilled
physical manual labour. By age 60, such effort becomes difficult.

[83]        
The Court has also assumed that the plaintiff would not have enjoyed
promotions. His poor English language skills and his uncomplicated nature militate
against a real possibility of advancement. Absent the collision, the plaintiff
had the qualities of physical strength, reliability and the ability to work
with others.

[84]        
Using an hourly rate of $21 (inclusive of vacation pay and other
benefits) and a 50 week work year, the plaintiff’s yearly earnings would be
$42,000.

[85]        
The Court is also satisfied that the plaintiff will not be able to
sustain his current efforts. The Court accepts Dr. Gouws’s view that the
plaintiff will probably suffer occupational burnout if he maintains his current
efforts. That said, the plaintiff has displayed tenacity and resolve. As such,
the Court finds that there is the real possibility the plaintiff will earn
$10,000 per year (from one or more level “D” occupations and some physical
labour).

[86]        
Mr. D. Benning was a consulting economist who was qualified to
provide expert testimony with respect to future income loss and cost of care
calculations.

[87]        
The Court will use the economic multiplier Mr. Benning provided for
a foreign born British Columbia male with a high school education. The economic
multiplier to age 60 is 16.938. In using the multiplier, the Court recognizes
that the plaintiff may not have a high school education equivalent to that of a
British Columbia high school and lacks English language skills. Offsetting
these factors are the plaintiff’s tenacity and reliability.

[88]        
Using the 16.938 economic multiplier, the calculation of future loss is:

($42,000 – $10,000) x 16.938 = $542,016, rounded $542,000.

[89]        
As a check on the validity of the earnings approach, the Court has also
considered the capital asset approach: Johal v. Meyede, 2014 BCCA 509 at
para. 37.

[90]        
The four key factors underlying the capital asset approach were set
forth by Justice Finch (as he then was) in Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353 (S.C.) at para. 8:

1.     The
plaintiff has been rendered less capable overall from earning income from all
types of employment;

2.     The
plaintiff is less marketable or attractive as an employee to potential
employers;

3.     The
plaintiff has lost the ability to take advantage of all job opportunities which
might otherwise have been open to him, had he not been injured; and

4.    
The plaintiff is less valuable to himself as a person capable of earning
income in a competitive labour market.

[91]        
In the case at bar, each of the four foregoing factors is readily met
which serves to confirm that the award as calculated using the earnings
approach is within an appropriate range.

[92]        
The defendants argued for a lesser award. Fundamental to the defendants’
position were the assumptions set forth in their written submission:

169.     The Plaintiff is someone with
significant residual employability, whose condition is likely to improve, and
who is quite capable of bettering his own situation.

[93]        
The Court’s findings do not support the defendants’ assumptions.

[94]        
The Court awards the plaintiff $542,000 for the loss of income earning
capacity.

D.             
Cost of Future Care

[95]        
Plaintiff’s counsel sets forth the cost of future care as follows:

*I believe counsel for the plaintiff incorrectly listed the
amount as $1,524. I have adjusted the total accordingly.

[96]        
With respect to the yearly cost items, the plaintiff is asking for
kinesiology and physiotherapy until at least age 65, psychological treatment
for the next 10 years, and $4,000 for seasonal cleaning and gardening (the lump
sum present value is $11,927).

[97]        
In considering costs of future care the Court should ensure:

a)             
an “evidentiary link between the caregiver’s assessment of pain or
disability and the recommended care”;

b)             
“regard for the real and substantial possibility that the expense will
be incurred” and that “an allowance for the contingency that the cost may not
be incurred”; and

c)              
“the specific amount awarded for each item claimed” is identified.

Johal
at para. 44

[98]        
The defendants do not challenge that $14,000 for a multidisciplinary
pain program is appropriate, subject to a reduction based on the “crumbling
skull” rule. They also are of the view that the program will reduce the need
for some of the other heads of future care.

[99]        
Dr. Gouws and Dr. Fisher recommended a multidisciplinary
approach to the plaintiff’s pain. Dr. Gouws’s view is that the plaintiff
would “benefit from a review of his medications, psychological counselling and
support in developing an appropriate exercise regime”. Dr. Fisher is more
optimistic and is of the view that a multidisciplinary approach may provide
adequate treatment for the plaintiff’s “chronic pain and other issues”. Dr. Fuller
is more pessimistic and views the plaintiff as someone who would be a “poor
candidate for such a program” because of the plaintiff’s language and cultural
barriers, and “the duration of time since the onset of symptoms”.

[100]     The Court
will be guided by Dr. Gouws’s recommendations. He has particular expertise
with respect to occupational health. The Court will award the $14,000 claimed.

[101]     Dr. Benitez-Lazo
recommends that the plaintiff have kinesiology sessions, Ms. Craig
recommends physiotherapy, and, as noted, Dr. Gouws recommends “support in
developing an appropriate exercise regime”.

[102]     The
plaintiff’s claim of 12 kinesiology or physiotherapy sessions per year until
age 65 is reasonable and conservative. Having regard to the chronic back pain,
the plaintiff will need the help of a physiotherapist. Whether or not working,
the Court finds that the plaintiff will try to be physically active. The Court
is satisfied that the plaintiff will attend the recommended sessions in order
to achieve as much physical function and pain management as possible. The Court
will award the claimed physiotherapy sessions but without the further charge
for a translator. The Court expects that the plaintiff will be able to find
Spanish-speaking kinesiologists and  physiotherapists in the Lower Mainland.

[103]     In sum,
the lump sum award for kinesiology and physiotherapy, using Mr. Benning’s
multiplier to age 65 is:

(12 x $60) x 22.911 = $16,495,
rounded $16,500.

[104]     With
respect to psychological treatment, Dr. Benitez-Lazo states that the
plaintiff will require counselling and psychological support. Dr. O’Shaughnessy
anticipates “ongoing antidepressant medication” and has, at best, a guarded prognosis
regarding the plaintiff’s moods.

[105]     As noted,
the plaintiff seeks psychological support for the next 10 years. The Court will
make its award based on six sessions per year for the next 10 years. Again, the
Court expects the plaintiff to be able to find a Spanish-speaking psychologist.

[106]     In sum,
the lump sum award for psychological sessions using Mr. Benning’s 10 year
multiplier is:

(6 x $200) x 9.017 = $10,820,
rounded $10,800

[107]     With
respect to prescription medications, medications were recommended by Dr. Benitez-Lazo,
Dr. Fuller, Dr. Gouws, and Dr. O’Shaughnessy. Dr. Benitez-Lazo
prefers not to prescribe Notriptyline as a result of one of its possible side
effects (weight gain). From his testimony, Lyrica will serve the desired
purposes. For this reason, the Court will exclude the plaintiff’s claim for
Notriptyline.

[108]     In his
testimony, Dr. Benitez-Lazo was emphatic that generic drugs are not good
substitutes for branded drugs. In his experience, generic drugs are not always
as effective or reliable. The Court finds that, with the plaintiff’s chronic
pain and depression, the prescribed medications are needed. The plaintiff’s
claim for the medications to age 65 is likely conservative.

[109]     In sum,
the lump sum award for medications using Mr. Benning’s economic multiplier
to age 65 is:

($781.44 + $892.20) x 22.911 =
$38,344, rounded $38,300

[110]     The Court
will also award a lump sum for a gym pass until age 65. The gym will facilitate
the plaintiff undertaking his exercises. The lump sum award is:

$421 x 22.911 = $9,645, rounded
$9,600

[111]     With
respect to heavier seasonal cleaning and gardening, the Court does not find the
necessary evidentiary link. The plaintiff can engage in heavier chores from
time to time. It is also unlikely he will have a home with a garden.

[112]     The total
lump sum award for costs of future care (subject to structuring) is:

E.             
Special Damages

[113]     The
plaintiff claims $3,500.28 in special damages. The defendants state that the
special damages should be $3,450.28. In deducting the $5,033 in transportation
costs the plaintiff had claimed but withdrew at trial, the Court can see that
the plaintiff made an arithmetic error.

[114]     The Court
will award $3,450.28 (rounded $3,450) in special damages.

IX.           
conclusion

[115]     The
plaintiff is awarded $889,650 in damages.

[116]     The Court
asks the parties to submit the prepared details for the structure of the award
within 90 days of these Reasons. If guidance is required, I ask that the
parties arrange through Trial Scheduling a 9 a.m. one-hour hearing.

[117]     Unless
there are matters of which I am not aware, the plaintiff will be entitled
to costs under Scale B.

“Funt J.”