IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150731

Docket: M165644

Registry:
New Westminster

Between:

Tibor Jean-Noel
Joseph Koltai

Plaintiff

And

Jai S. Wang

Defendant

Before:
The Honourable Mr. Justice Armstrong

Reasons for Judgment

[1]            
These reasons concern the assessment of the damages suffered by the
plaintiff, Mr. Koltai, resulting from a car accident that happened May 7,
2011 in Langley, BC. The plaintiff’s vehicle was struck from behind with
considerable force and he claims to have suffered significant injuries that
have completely disabled him and rendered him unable to work now or in the
future. Liability for the collision is admitted by the defendant.

[2]            
The plaintiff claims compensation under the following heads of damages:

1.       Non-pecuniary damages:
$135,000 – $140,000;

2.       Past income loss:
$56,500 – $78,000;

3.       Future income loss:
$300,222 – $445,000;

4.       Costs to provide for
his future care: $304,000 – 395,000;

6.       Special damages:
$9,845;

7.       Court ordered interest
and costs.

The Plaintiff

[3]            
The plaintiff is married and has two children, ages 14 and 19. He resides
near 39^th Avenue and 196^th Street in Langley, in a home
he has owned for eight years.

[4]            
The plaintiff was born in Ottawa, where he attended secondary school
until Grade 9, when he left school to take employment in the construction
industry. He has worked in construction, window and door installation, and
other labouring positions. In 2001 he came to British Columbia with his family
and began a window washing business.

[5]            
Prior to the accident, the plaintiff was physically healthy. There was
nothing in his medical history to suggest he had pre-existing conditions of any
sort that were affected by the May 2011 collision.

[6]            
At the time of the accident, the plaintiff was a self-employed janitor
and performed night security services for a company called Shirley Williams. Previously,
he had sub-contracted janitorial work through another company but in 2009
decided to “go out on his own”. He had two regular contracts including one with
Stanley Black and Decker (“SBD”), and had been trying to obtain additional
work, apparently without success.

[7]            
The plaintiff has lived with his wife, Martine Koltai since 1994. She is
employed as a full-time customer service representative with SBD (now known as
Spectrum Brand). Her hours are 6:00 a.m. till 2:30 p.m. She earns $61,000 per
year.

[8]            
In 2001 Mr. and Mrs. Koltai came to British Columbia from
Québec to live closer to the plaintiff’s father and grandparents. She testified
that the plaintiff was unemployed when they came to British Columbia but within
one week had obtained employment in a landscaping firm.

[9]            
She did the “paperwork” and administrative duties including income tax
filings for Mr. Koltai’s business. She also performed some of the physical
work in the janitorial service. She would dust, clean fridges and microwaves
and counters and washrooms. She would also do dishes and kitchen cleanup for
another client.

[10]        
The plaintiff lives with his family in a 3000 square foot basement entry
level house. Before the accident, he was renovating the basement area which
includes a bedroom, laundry room, exercise room and entertainment room. The
renovations were never completed. Since the accident he has slept in a guest
room on the first floor of the house. There are 14 steps to the upper level and
he is capable of climbing those steps with some difficulty; he uses the stairs for
exercise.

[11]        
There are two bathrooms on the upstairs of the home and one bathroom
downstairs. There is a walk-in shower used by the plaintiff where he is able to
wash his upper body but not his lower body. His accident-related injuries limit
his ability to bathe and he relies on his wife to assist him in that task.

[12]        
Prior to the accident Mr. Koltai worked on the grounds around his
home; he trimmed trees, maintained a deck, and cut lawns. He also performed
many of the interior domestic chores.

[13]        
Mrs. Koltai described her husband as an entertaining, social person.
He is an accomplished singer and would often perform publicly.

The Plaintiff’s Business

[14]        
In 2009 the plaintiff began a janitorial business doing subcontract work
with a company he identified as Astro Light. Under that business arrangement,
Astro Light would refer potential customers to the plaintiff and Astro Light
would receive a portion of the income earned by the plaintiff from the
customer. Astro Light introduced the plaintiff to Star Auto Body. When the
plaintiff decided to begin his own business, he was able to maintain the
relationship with Star Auto Body and continued to provide janitorial services
for one to one-and-a-half hours per day.

[15]        
Although he started his business in 2009, the claimant began work for
SBD in October 2010. He made a connection with SBD through his wife and began
providing cleaning services to that company for $925 per month. The accident
happened approximately one year after he started that work.

[16]        
The janitorial services he performed for SBD included high level dusting,
stripping and waxing floors, vacuuming, cleaning fridges and the kitchen, and
changing light bulbs. He worked Monday to Friday from 6:00 p.m. for three to
four hours each day. The plaintiff’s wife worked alongside him when he was
cleaning the SBD premises.

[17]        
Mrs. Koltai contradicted the plaintiff’s evidence concerning her
involvement in cleaning the SBD premises. He described some significant duties
performed by her whereas she said that she did little work and was there to be
able to spend time with her husband. On this point, the conflict in their
evidence is significant.

[18]        
At the time of the accident, the plaintiff was earning $150 per month
from Star Auto Body and $925 per month from SBD. The plaintiff’s wife was not
paid a salary for the services she performed at SBD.

[19]        
In May 2008 the plaintiff also took a position with Shirley Williams to
perform weekend watchman’s duties. He was paid $15 per hour plus 4% for his
benefits. He said he worked eight hours every second weekend. He earned $8,540
in the 43 weeks prior to the accident.

[20]        
The engagement with Shirley Williams was to provide security services at
a place known as Cippa Lumber. The duties included inspecting the premises
which included a walking inspection and lookout for fire and thefts from the
company. He said when doing his rounds he was required to climb high ladders
and close large doors.

[21]        
Other than the two contracts with SBD and Star Auto Body, the plaintiff
had been unsuccessful in finding other clients, although he had been making
efforts to find more work. He said that if the accident had not occurred, he
would have increased the janitorial business by obtaining new clients. He
wanted to expand the business to include pressure washing but was not going to
continue the night security work.

The Accident

[22]        
The plaintiff was driving a Dodge Dakota 4×4 southbound on 200^th
Street at 56^th Avenue in Langley on May 7, 2011. His wife was in the
passenger seat as he was stopped at the intersection. At approximately 4:30
p.m. a BMW SUV struck his truck from behind. When the impact happened the
plaintiff was turned and speaking to his wife.

[23]        
There was no warning of the collision and on impact his head went
backward and forward, hitting the left side of the steering wheel.

[24]        
The plaintiff was one car length behind a vehicle stopped in front of
him. On impact, his vehicle was moved almost a full car length but did not
impact the car in front.

[25]        
The plaintiff recalls the driver from the car in front coming to the
back of her vehicle, looking for damage, and then driving off without any
discussion with him. The driver of the vehicle behind approached Mr. Koltai
and placed his arm on his shoulder; this caused him some discomfort.

[26]        
The rear-bumper of the plaintiff’s truck was pushed underneath the
vehicle. There was substantial damage to the bumper, the body of the truck, and
the area near the gas tank. The plaintiff’s insurers deemed the vehicle to be a
write-off.

[27]        
He does not recall losing consciousness but felt shaken up. The police
attended the accident but no ambulance came.

The Plaintiff after the Accident

[28]        
The plaintiff said he felt shaken up and woozy while sitting in his car.
He got out of his vehicle and the defendant came up to him and put his arm
around the plaintiff’s shoulder, causing significant pain.

[29]        
The plaintiff returned to the cab of his truck.

[30]        
Although he does not remember losing consciousness but he recalls his
wife saying “what happened”. His head was sore and he was dizzy but he did not
remember bruising his head.

[31]        
Notwithstanding the condition of his vehicle, he drove home and took a
long time crawling into his house.

[32]        
That night his sleep was disturbed and he had pain throughout his whole
body. He was having nightmares of the accident and described the physical pain
as being hot and electrifying throughout his whole body.

[33]        
In the morning the plaintiff went to a walk-in-clinic where he was
assessed by a Dr. Chitsaz. He did not have a family doctor prior to the
collision.

[34]        
Dr. Chitsaz became his treating physician from her first meeting
with the plaintiff forward.

[35]        
At his first doctor’s appointment he described having low back pain down
his leg to his toes, a sore neck, sore arms, headaches and poor concentration.

[36]        
He said his doctor advised him to take medications and ordered x-rays
and a CT scan. He remembers receiving a morphine patch but does not recall
other medications. In fact, the investigations with x-rays and CT scans occurred
sometime after his first visit with Dr. Chitsaz.

[37]        
Since the accident none of his injuries have resolved. He said his
ongoing complaints are:

(a)      Low back pain;

(b)      Neck pain;

(c)      Shoulder and arm pain;

(d)      Leg pain;

(e)      Head pain, including
headaches.

[38]        
He said he is unable to read and has acquired corrective lenses to
assist him. He has memory problems including the following:

(a)      Forgetting where he
placed items;

(b)      Forgetting the access
code to his house;

(c)      Disagreeing
with his children about things he thinks he has which the children did not
hear;

(d)      Anxiety, nightmares,
and dizziness.

[39]        
He continues to take the following prescribed medications:

(a)      Xanax, since September
2004;

(b)      Cesamet;

(c)      Gabapentin;

(d)      Tylenol 3.

[40]        
He described Xanax as a medication he takes to deal with pain. He was
prescribed one tablet daily but eventually began taking three tablets. He
thinks the Xanax reduces the feeling of electric shock and overall reduces his
pain.

[41]        
He takes Tylenol 3 intermittently but he does not like ingesting any pills,
including aspirin. He said he uses the Tylenol 3’s when “he loses it”.

[42]        
He also takes Cesamet on a daily basis with one in the morning and one
in the evening and sometimes he takes two pills.

[43]        
Gabapentin is taken at the rate of three in the morning, three at lunch
time and three in the evening.

Injuries

[44]        
Mr. Koltai said his most significant injuries have resulted in low
back pain, leg pain, arm pain and shoulder pain. He is trying to manage that
pain but has lost hope for significant recovery after three-and-a-half years of
ongoing pain.

Right leg

[45]        
The plaintiff described having electric shocks in his right leg in the
morning after the accident. It was painful and it affects his function. He is
able to walk but limps when not on his medications. He said his right leg and
low back are his worst symptoms.

[46]        
He does not have many good days but the leg pain does improve on some
days. He said that heavy or fast walking exacerbates his leg pain and he is only
able to walk for 15 minutes once each day. He said he has extreme pain when
walking and after walking he remains in extreme pain.

Neck pain

[47]        
Pain in this region goes from his neck to his arm. It begins on the left
side and is worse at night. It is also painful in the morning but improves when
he takes his medications. It becomes worse again at night. He has a slow range
of motion in his neck, but is able to shoulder check on a limited basis when he
drives.

[48]        
He said that his neck becomes stiff although the muscles become less
tight when he is taking the drug Xanax. He is able to drive when he is feeling
well; he can shoulder check.

[49]        
The pain from his neck radiates to his arms. Sometimes he is unable to
open doors and uses a handicapped button. The heaviest weight he can lift is
about 5 pounds but is limited to holding that weight for five seconds. He said
he can only lift that weight periodically.

[50]        
He said he can lift a weight equal to the weight of a half-full jug of
milk but has never tried to lift anything heavier. Lifting a jug of milk causes
him pain.

Back

[51]        
The range of motion in his back is not good, but he is able to bend and
touch his toes. When he takes his Xanax, he is less stiff and better able to
drive.

[52]        
When he is not feeling well, he lets his wife drive him.

[53]        
The furthest he drives is from his home in South Langley to Peace Arch
Hospital. He says this is a 15 minute drive.

Headaches

[54]        
Before the accident the plaintiff had no headaches. Following the
accident he has had headaches that start on the left side of his head and
radiate to the centre. He also described headaches that start in the front and
go to the back right side of his head.

[55]        
His headaches are worse in certain types of lighting or when
concentrating on television or reading. Concentrating or reading seems to
trigger his headaches.

[56]        
He says physical activity does not aggravate his headaches. With the
onset of headaches, the plaintiff will go to his bedroom, turn off the lights,
and the headaches will disappear. He sometimes will take Tylenol 3’s twice a
day for headaches.

[57]        
The headaches are worse now than they were immediately after the
accident.

[58]        
He also believes his vision has been made worse due to accident.

Memory Problems

[59]        
The plaintiff says that he notices an intermittent problem remembering such
things as the door code for his house. He does not remember the door code and
needs help from his children to obtain entry. Sometimes he is unable to recall
the pin number on his debit card. He also misremembers things. His memory
problems have worsened and seem to be an irritant with family members.

[60]        
His memory loss seems worse during the afternoons and he relies on his
son to give him access to the house because he frequently forgets the alarm
code.

[61]        
He says that memory issues come and go but they are worse in the
afternoon towards the evening. The medications do not affect his memory.

[62]        
Prior to the accident he had not suffered any head injuries, concussions
or sports injuries.

[63]        
His youngest son is being home schooled in order to be able to help his
father. He reminds him to take his medications and prepares his breakfast and
lunch. He believes his memory has worsened since the time of the accident.

Ringing in the Ear

[64]        
He described ringing in his left ear that started some six months after
the accident and is recorded by his family doctor. He said this ringing in his
ear comes and goes.

[65]        
He said that the ringing in his ear started on the left side and then
moved to the right and sometimes it occurs in both ears; this ringing occurs
three times per day. He was not precise about when the ringing began in the
right ear; this was clearly more than six months after the accident. He
testified that he had no ringing before the accident.

[66]        
He described the sensation as a pinging sound that lasts for
approximately one minute and occurs four times a day.

Dizziness

[67]        
The plaintiff described a lightheaded feeling that once caused him to
fall; this was about one month after the accident. The dizziness happened one
month after the accident when he was walking. He said it happened without any triggering
event. He saw a counsellor, Michelle McBride, in 2014 who told him to remain
calm and taught him to breathe when he was experiencing dizzy episodes. He
found her advice solved his dizziness problem.

Emotional Problems

[68]        
The plaintiff described nightmares occurring every night since the
accident. The dream recurs and he hears his wife saying “didn’t he see us”. He has
spoken to his counsellor, Ms. McBride and to his family doctor who
prescribed Xanax. The Xanax is managing the nightmares as it calms him down and
he seems to have fewer incidences.

Activities

[69]        
Mr. Koltai discussed the changes in his activity since the
accident. He avoids running, lifting heavy objects, cutting grass, house
maintenance, playing soccer and softball with his son, and vacuuming. He said
that he has not tried any of these activities because he does not want to
reinjure himself.

[70]        
Since October 2014 he has used a compressed back brace to assist him in
walking; his father was living with him and gave him the brace on October 1,
2014. He said that Xanax also assists in his walking. He said he walks about 15
minutes after which he “feels a lot of pain”. He uses a cane when needed but
also said he uses the cane after two hours when his medications wear off.

[71]        
The plaintiff has not returned to any form of work and has no source of
income except for $246 bi-weekly from ICBC.

[72]        
He denies being able to perform any janitorial duties because he cannot
carry a vacuum cleaner up and down stairs or perform high dusting or climbing
ladders.

[73]        
After the accident the plaintiff’s sons did the janitorial work for SBD.
The children were not paid for their work. They continued to perform the
maintenance work in place of the plaintiff until the management at SBD ended
the relationship because they did not approve of the children performing those
duties. Before the accident the plaintiff’s wife performed the janitorial
duties with the plaintiff but stopped after the accident.

[74]        
Around the home, the Koltai children help with cleaning, vacuuming,
cutting the lawn and sweeping. These were functions that the plaintiff usually
did before the accident, although they did assist in lawn mowing and other
chores.

[75]        
In early 2014 the plaintiff’s mother lived with the plaintiff. She
helped doing the laundry and cooking meals but became hospitalized with
terminal cancer in the fall of 2014. He visits his mother in hospital but
visits her less frequently than he would like because of his pain. He said “I
had to take more medication so I wouldn’t show her that I was in pain.” She has
been in Peace Arch Hospital since September 2014 and he has visited her only
six times since then.

[76]        
After the accident, he said no one has done maintenance work on the
outside of the house. He typically pressure washed the deck, trimmed the
hedges, cleaned the roof and gutters and mowed lawns. Since the accident his
neighbours have helped with some hedge trimming and his children have mowed the
lawns.

[77]        
Before the accident the plaintiff frequently went camping and fishing,
played softball and street hockey. He would fish twice a year and camped with
the children once a year. He has not done any of these activities since the
accident. He also played beer league softball before the accident but not
since.

[78]        
Before the accident he would use a treadmill and Bowflex machine three
times per week; since the accident he has attempted to use the treadmill but
cannot keep up. Before the accident he played billiards with friends but has
not played since the accident. He would take the children to the waterslides
but has not done so since the accident.

Financial Stress and Income History

[79]        
Mr. Koltai said there have been financial stresses since the
accident including growing credit card debt, credit card delinquency, and difficulty
paying his mortgage; he said he took a loan secured against his house to pay
his debts.

[80]        
He said this financial stress is due to his inability to earn his pre-accident
income.

[81]        
The Koltai’s owned their home which they purchased in 2006 for $419,000.
The mortgage on their home was due for renewal in 2013. Mrs. Koltai said
that they had a perfect credit history and always paid their bills on time.

[82]        
Mrs. Koltai said they eventually obtained a second mortgage loan to
help out with their bills because their credit rating had deteriorated. At that
time, their credit card debt was $22,500, their second mortgage was $20,000 and
their first mortgage $399,000. She said that about $5,000 of this debt existed
before the accident.

[83]        
She testified that since the accident there has been only one income in
their household, and that this has put a financial strain on the family. She
testified that the family monthly expenses were approximately $3,500.

[84]        
Mrs. Koltai earns take-home income of $4,000 per month. Mr. Koltai
has been receiving approximately $490 per month from ICBC. On this evidence, their
post-accident net incomes exceed their post-accident expenses by a considerable
amount. Thus it is hard to accept that their current debt obligations and
stresses have been caused or contributed to by Mr. Koltai’s inability to
earn his pre-accident income.

[85]        
The plaintiff’s income tax returns which form part of the evidence
reflect his historical income as follows: $206 in 2006; $1,504 in 2007, $6,892
in 2008, $13,872 in 2009, $15,975 in 2010, $2,643 and 2011, $0 in 2012, $0 in
2013.

Treatment

[86]        
Mr. Koltai has been cared for by Dr. Chitsaz since the motor
vehicle accident. He recommended massage therapy, acupuncture, chiropractic
treatments and hydrotherapy to address the plaintiff’s injuries. He said
massage therapy was not successful because he took it shortly after the
accident. He described five to six chiropractic treatments that were helpful.
He believes that they aligned his body and gave him 30 minutes of relief. He
could not recall when he last saw the chiropractor.

[87]        
In the fall of 2011 he believes he did hydrotherapy three times per week
at the W.C. Blair Pool in Langley; he could not remember the duration of this
treatment regime. These were 75 minute sessions which he felt improved his
symptoms of “electricity” going from his back into his leg. The improvement
lasted only 30 to 40 minutes.

[88]        
He believes that his current use of a back brace keeps his posture
straight. He was encouraged to wear a compressed back suit that ICBC refused to
fund. In September 2014 his father offered to lend him a brace; he began using
the brace and experienced pain relief when walking and bending.

[89]        
Dr. Chitsaz referred the plaintiff to a Dr. Watson for
prolotherapy. He testified that the prolotherapy worsened the burning pain in
his back.

[90]         
The plaintiff was then referred to Dr. Schmidt; he said he
was capable of doing all of the testing required by Dr. Schmidt but that
he had not taken his medications before the assessment. He said:

Because I wanted to see how far I
can do things without my medication. If I take too much it’s not – – I wouldn’t
be me. I wanted to be myself.

[91]        
Next, he said he was referred to a neurosurgeon, Dr. Mutat who
recommended the plaintiff obtain an MRI of his neck and told him that he was
not a surgical candidate.

[92]        
The plaintiff was next seen by a neurologist, Dr. Singh, for the
ringing in his ears and his eyesight problem. He reported being unable to read
and said he was experiencing headaches and ringing in his ears. Dr. Singh
recommended new medications but the plaintiff chose not to accept his
recommendation.

[93]        
The plaintiff was then seen by a Dr. Anderson for approximately two
hours and eventually took counselling from Michelle McBride.

[94]        
He met with an occupational therapist, Megan Stacey, on two occasions.
The first visit he was assessed from the early morning until the late afternoon
but did not take his medications prior to the initial assessment. He restated his
reason for not taking his medications or using his back brace: he wanted to see
how his body would function, to the extent of doing all the bending and
carrying, without the interference of medications and supports.

The Video Surveillance

[95]        
The defendant put into evidence video surveillance of the plaintiff
taken October 21 and 24, 2013; October 17-21, 2014; October 24, 2014; October
27-.29 2014; November 1-4, 2014 and November 8, 2014.

[96]        
On the October 18 video the plaintiff is seen walking without a cane
accompanied by his sister. He is seen in a meat store moving about without a
cane and with apparent ease. He said that he had taken two Xanax tablets and
thus was able to walk without a limp and faster than observed in court.

[97]        
He testified that he was not in agony at the time of this video but had
walked for only one minute and was in severe pain. Nonetheless he agreed that
he does not appear to be in pain on the film and, in my view, he shows no
evidence of being in discomfort, pain or limited in his movements.

[98]        
On October 21, 2014 the plaintiff is seen at a local grocery store with
his brother-in-law. He was walking without a cane and without any significant
limp. He entered into a vehicle; he said he could get into the vehicle because
he had learned to inhale and exhale in a way that prepares him for that type of
movement.

[99]        
He is also seen carrying a 4L milk jug. He said it was half full and he
could pick it up from the ground and carry it for 5 to 10 seconds and after
that his hands would shake. He was able to do this only on a good day after
taking medications. On a good day his hands do not shake. After carrying a half
full jug of milk he said he needs to relax; he said he pays for it later in the
evening. He said the ingestion of Xanax helped him to cope with carrying the
jug on that occasion but he still found it painful.

[100]     On October
24, 2014 the plaintiff is observed at Peace Arch Hospital. He was with his
father and there is a mechanical problem with the truck. He said he simply
observed his father bend over looking into the engine; the plaintiff appears
bent over but to a lesser degree. He said the water pump had stopped and they
had a half-full 4L jug of water to fill it. The plaintiff does not appear
limited in any way in his movements at this time. He said there was no pain at
that time because he was taking three or four Xanax tablets and these helped alleviate
his pain. He also took one Cesamet in the morning and some Gabapentin.

[101]     The
plaintiff is eventually seen bent over 90 degrees looking into the engine and
said that the bend was not painful on that day. He said he was fine; he carried
the half-full jug without appearing to shake or to be experiencing any pain. He
said carrying that jug did not aggravate his pain. He is seen attempting to
close the hood on his car; he told his father he wanted to see if he could do
it.

[102]     Further in
the video he is still carrying the jug but he said at that time it was empty.
As he is seen walking in the video he does not appear to be in any obvious
signs of pain.

[103]     Later the
same day the plaintiff is seen at 16^th Avenue and North Bluff Road
in White Rock. He testified that on good days he goes for a walk; he stops,
takes a break and returns. On this day in the video he walks 750 meters from
the hospital to the place where he is seen on George Street. He said he
calculated the walk the day before he was at the hospital because he likes to
measure distances. The plaintiff’s explanation of this incident was
unbelievable.

[104]     He walked
from the hospital to a strip mall on George Street; he described this as a 10
minute walk. He said he stopped inside a store, then left walking up stairs
back to the hospital. He agreed that the pattern of his walking upstairs was one
foot after the other as opposed to step climbing as he described earlier and
demonstrated in front of the occupational therapist. He did not appear to be in
any pain during this walk.

[105]     On October
27, 2014 the plaintiff is seen going to into a Superstore grocery store walking
without a cane. He could not remember that event nor going to the grocery store
on that day.

[106]     On October
28 at 12:47 the plaintiff is seen at the Peace Arch Hospital. He said this was
a good day because he had three Xanax during the day. He was also wearing his
back brace. He is seen crouching in this video but could not remember what
level of pain he experienced. He walked without a limp and at a relatively
brisk pace. He explained this by saying October 28 was a good day and he could
walk faster before the accident.

[107]     On this
same day the plaintiff is seen driving his vehicle away from the hospital. He
was able to shoulder check but claims to have been in pain.

[108]     On
November 3, 2014 the plaintiff is seen attending Orion Health Clinic for an appointment
set up a by ICBC. On that day he appears to be a much different person; he is
limping and appears to be in extreme pain. He is not wearing his back brace nor
did he take medications.

[109]     The
plaintiff testified that he did not take his medications nor wear his back
brace when he was attending for various medical assessments. He held the view
that any assessment of his circumstances should not be influenced by the
medications and other supports he had available; he wanted to appear as badly
disabled as possible.

[110]     Nonetheless,
the plaintiff testified that he was very much in pain at the time he went to the
Orion Health Clinic. He appears to be walking slowly and experiencing
considerable discomfort.

[111]     November
4, 2014 was his second day of his assessment at the Orion Health Clinic. He is
seen walking slowly and guardedly and in apparent discomfort and pain. After
attending the Orion Health Clinic he went for lunch with his wife to a
restaurant on Fraser Highway. He said he took his medications, Gabapentin, and
Xanax halfway to the restaurant. He said he started to improve and was doing
much better when they arrived at the restaurant and was able to walk without
his cane.

[112]     The
filming from November 8, 2014 shows the plaintiff walking with his sister at 16th
Avenue and 200 Street in Langley. He seemed to be walking freely at a moderate
pace without a cane. There was no limp and no apparent pain. The plaintiff
explained this by saying he was wearing a back brace and had taken Gabapentin
and Xanax, but he was in pain.

Medical Evidence

Dr. A. Mutat

[113]     Dr. Mutat
is a neurosurgeon who examined the plaintiff on February 7, 2012 on referral
from his family doctor. Working from an assumption that the plaintiff had given
him an accurate medical history and confirmation that the plaintiff had no low
back pain before the accident, he provided an opinion that Mr. Koltai’s
cervical-based symptoms were due to multiple factors including:

(a)      an asymmetrical C5/C6
disc bulge;

(b)      soft
tissue injury following whiplash type cervical injury involving the connecting
tissues such as ligaments, muscles, facet joint capsules and fascia;

(c)      arm pain due to (a)
and (b);

(d)      occipital headaches
due to (a) and (b).

[114]     The
plaintiff told Dr. Mutat that neck pain, stiffness, paresthesia and
numbness, headaches and arm pain developed two to three weeks after the
accident.

[115]     He also
told Dr. Mutat that after the accident he developed stiffness and pain in
his low back radiating to his right leg and to his right foot. The doctor made
the following observations:

(a)      he
opined that the plaintiff’s low back pain was likely due to multiple factors,
including lumbosacral soft tissue injury involving the connection tissue such
as ligaments, muscles, facet joint capsules and fascia; the plaintiff’s soft
tissue injury had resolved;

(b)      there
was a L4/L5 lumbar disc bulge which may or may not have existed in a
symptomatic state prior to his motor vehicle accident, but there is no
objective evidence of sensory function loss or motor function loss to active
radiculopathy;

(c)      he said
that the plaintiff’s pain was broader than the pathology at L4/L5 level and there
was likely soft tissue involvement, secondary frustration and possibly
depressed mood;

(d)      he
said that the plaintiff’s degenerative disc disease and facet osteoarthritis
were all contributing to a degree to his low back pain but the L4/L5 disc bulge
was the most contributing to those symptoms, though he was unable to attribute
a percentage of contribution of each.

[116]     It was Dr. Mutat’s
opinion that the plaintiff’s pre-existing degenerative disc disease was mildly
symptomatic but turned into a consistent symptomatic condition after the 2011
motor vehicle accident. The doctor’s opinion is somewhat confusing because he
then said the accident was materially significant in transforming his condition
from asymptomatic to a consistent and persistent condition.

[117]    
Dr. Mutat said that:

With regards to employability,
the degree of pain in his neck and lumbar spine as described by Mr. Koltai
are likely to fluctuate up and down limiting his ability to perform full-time
duty work in a reliable fashion and may force him to modify his work schedule
or work duties to light duties as needed.

[118]    
Dr. Mutat relied on the plaintiff’s description of pain in
concluding that the pain adversely affects his recreational sporting and
employability prospects.

[119]     He said he
would expect to see degenerative disc disease in a 39-year-old male who had
functioned as a labourer; 60% of people with degenerative disc disease will
develop symptoms in the area of their spine affected by that condition.

[120]     He said
there was no scientific evidence to prove that trauma causes an acceleration of
pre-existing degenerative disc disease but common knowledge amongst
neurosurgeons was that pre-existing degenerative changes can be aggravated by
accidents.

[121]     Dr. Mutat
recommended epidural injections for the plaintiff. These injections into the
spine are intended to alleviate symptoms for three to six months. The reason
injections are prescribed is to assist patients to achieve pain relief without
daily use of medications. Dr. Mutat described the process whereby pain,
treated only with medications, causes muscle spasms that eventually fatigue the
muscles which invigorates more pain. The injections are intended to break the
pain cycle and allow the patient to achieve better results from other
modalities, physiotherapy and massage therapy, and reducing stress to the
muscles.

[122]     Dr. Mutat
recommended these injections to the plaintiff and informed him of information
available to assist the patient to make a reasoned decision concerning that
treatment. He said he left the plaintiff with this information and told the
plaintiff to call him back if he wished to proceed with injections. The
plaintiff did not call Dr. Mutat to initiate this treatment.

Dr. Stephen Anderson

[123]     Dr. Anderson
is a psychiatrist with a special interest in chronic pain. He saw the plaintiff
on February 18, 2014 and provided a psychiatric assessment and opinion dated
February 25, 2014.

[124]     The
plaintiff told Dr. Anderson that his most significant problems since the
accident were headache pain, ringing in his ears, chronic back and neck pain
and memory problems. He also told Dr. Anderson he believed there was
something dangerously wrong with him. He told Dr. Anderson he cannot play
pool on his pool table nor can he bend over. The plaintiff told Dr. Anderson
that his life revolves around pain and that he walks daily for 10 minutes in
nice weather.

[125]     He said
the ringing in his ears had worsened and had been a significant problem since
the accident. This was not true; the tinnitus did not begin for six months
after the accident.

[126]     The
plaintiff told Dr. Anderson that he was waiting for Dr. Mutat to give
him an epidural injection. This is not correct insofar as Dr. Mutat had
discussed the details concerning the epidural injection and told the plaintiff
to consider the information. Dr. Mutat advised the plaintiff to call him
when he had made a decision to proceed with injections.

[127]     Dr. Anderson
concluded that the plaintiff sustained an injury leading to physical, cognitive
and emotional difficulties. He accepts that the plaintiff struck his head on
the steering wheel causing a mild traumatic brain injury and post concussive
symptoms.

[128]     He
observed that the plaintiff’s life revolves around pain and notes that the
plaintiff worries excessively and avoids activity that might cause pain. His
depressive symptoms, anxiety and decreased mood are part of what he describes
as the plaintiff’s somatic symptom disorder.

[129]     He
recognizes that the plaintiff suffers cognitive difficulties but has not been
neuropsychologically tested as yet. There is no measure of his disability without
such testing. Most likely, his symptoms are due to emotional factors including
pain, anxiety, depression and insomnia. He believes that the plaintiff’s
concentration and memory problems are also due to his physical, emotional and
psychological problems. But for the accident the doctor believes that these
symptoms would not have occurred.

[130]     He concludes
that the plaintiff is not likely competitively employable due to the physical,
emotional and cognitive difficulties he experiences. Dr. Anderson notes
that the plaintiff’s symptoms fluctuate from time to time.

[131]     In terms
of treatment, Dr. Anderson recommended:

(a)      20
sessions of psychotherapy, including cognitive behavioural therapy to teach
stress and anger management;

(b)      a low dose of
medications for sleep including Nortriptyline;

(c)      psychotropic drugs for
sleep and pain;

(d)      more rehabilitation services;

(e)      referral to a headache
specialist such as Dr. Robinson;

(f)       referral to the
dizziness clinic at UBC;

(g)      assessment by an
orthopedic surgeon;

(h)      neuropsychological
testing;

(i)       magnetic
resonance imaging testing (this was subsequently completed without any positive
findings);

(j)       a supervised exercise
program;

(k)      engaging
an occupational therapist to teach cognitive remediation strategies;

(l)       treatment
at a multidisciplinary pain clinic such as Orion Health Clinic; and,

(m)     engaging a vocational
consultant.

[132]     Notwithstanding
these recommendations, Dr. Anderson said that the plaintiff’s future is
uncertain and pessimistic. On a long-term basis he will be emotionally
vulnerable. Somatic symptom disorders lasting beyond two years usually continue
in spite of treatment. Pain, anxiety, depression, insomnia and tinnitus are
likely to perpetuate his cognitive difficulties.

[133]     Dr. Anderson
qualified his opinion stating “a better understanding of Mr. Koltai’s
long-term psychiatric prognosis will become clearer once the above
recommendations have been put into place”.

Dr. James Schmidt

[134]     Dr. James
Schmidt is a neuropsychologist who was asked by the plaintiff to assess him. Dr. Schmidt
was asked to opine on the nature of the plaintiff’s head injury, any
psychological injuries he may have suffered, any functional difficulties
resulting from his accident injuries, the residual effects of his injuries, the
impact of his injuries on activities of daily living and recreational and
vocational questions, need for rehabilitative or homecare services, future
medical treatment needs, and prognosis for improvement. Dr. Schmidt evaluated
the plaintiff on April 2 and 3, 2014.

[135]     Dr. Schmidt’s
opinions were predicated on his assumptions concerning the opinions from Dr. Singh
and Dr. Anderson. He agreed that his conclusions were similar to Dr. Anderson’s
conclusions except on the issue of post-traumatic stress disorder.

[136]     His
opinions may be summarized as follows:

(a)      although
the plaintiff came from a disrupted family and left school in Grade 9, he
maintained a stable lifestyle with regular employment and a long-term intimate
relationship;

(b)      it
is unlikely the plaintiff suffered a concussion that is affecting him now but he
did suffer other injuries as a result of the accident leaving him with
substantial and persisting pain problems;

(c)      he
has ongoing headache and spinal pain, disturbed sleep, blurred vision and
tinnitus. He complains of decreased memory and concentration in part, arising
from his pain problems, he has significant emotional disruption typified by
general feelings of depression and irritability as well as specific anxiety and
post-traumatic stress symptoms associated with the accident;

(d)      the
plaintiff’s disruptive effects of pain prevented Dr. Schmidt from
obtaining a clear picture of his overall cognitive functioning;

(e)      the
plaintiff’s attempts to deal with pain problems are fairly non-adaptive. He has
beliefs about his pain which, if modified, might help him to deal with pain and
reduce his overall impact on his life;

(f)       It
is strongly recommended he receive psychological intervention. Cognitive
behavioural therapy by a registered psychologist with appropriate experience
may help him. He should see an occupational therapist to become involved in a
structured, graduated reactivation program focusing on physical reactivation
and followed by help in re-engaging in the community;

(g)      the
plaintiff’s progress is guarded because he is extremely dysfunctional from a
psychological perspective. There is hope that with treatment focusing on
psychological and behavioural issues, he will experience a significant
improvement. His ultimate progress will very much depends on whether he
receives and benefits from psychological intervention;

(h)      depending
on his progress, further neuropsychological investigations might be appropriate;
and,

(i)       viewing
the video surveillance of the plaintiff did not change his opinion.

[137]     Under
cross-examination, Dr. Schmidt confirmed that he relies on the self-reporting
of individuals but also considers internal measures to confirm the patient’s reliability.

[138]     The thrust
of his opinion was that the plaintiff has beliefs about his pain that interfere
with his ability to learn ways to deal with pain. His fear of pain needs to be
changed and this can be accomplished with cognitive behavioural therapy.

[139]     Dr. Schmidt’s
prognosis is guarded but incorporates hope that treatment interventions will
produce significant improvement.

Dr. Gurwant Singh

[140]     Dr. Singh
is a general neurologist who examined the plaintiff once on August 13, 2012. He
was asked to evaluate the plaintiff in view of his ongoing dizziness and
headaches related to the motor vehicle accident.

[141]      The
plaintiff described the accident to Dr. Singh and said he was in a stopped
vehicle that was rear-ended by a BMW travelling at 80 km/h. His wife told Dr. Singh
that the plaintiff was unconscious for a few seconds as he had hit his head on
the steering wheel.

[142]     Dr. Singh
said that the velocity of impact is an important factor in assessing head
injuries. The forces pushing the brain forward and back are more likely to
cause a concussion. However the doctor would not accept or deny the likelihood that
high-speed collisions cause concussions.

[143]    
Dr. Singh said:

Patient was overwhelmed by the whole accident and body pains
that he was having. Ever since then, he continues to have headaches,
dizziness, and tinnitus.”

[Emphasis added.]

[144]    
Dr. Singh concluded that the plaintiff had a mild concussion with
dizziness that was likely part of his concussion syndrome. He reported that his
tinnitus was likely post-traumatic and arising from a cochlear concussion. His
headaches occurred spontaneously two to three times per week and lasting up to
eight hours. He also observed that the plaintiff had soft tissue injuries to
his neck and lower back.

[145]     Dr. Singh
recommended that the plaintiff try medications for prophylaxis, Botox and
psychological feedback. He could not estimate the length of time the plaintiff
would be disabled by the symptoms.

[146]     Concussion
symptoms typically improve within six months but migraine headaches have
variable prognosis. He advised the plaintiff to maintain a sleep routine, eat
regular meals and keep a diary of trigger factors related to his headaches. He
agreed the plaintiff’s headaches and dizziness could be complicated by
psychological factors.

Dr. J.D. Watson

[147]     Dr. Watson
is a physical medicine and rehabilitation specialist. He examined the plaintiff
on July 17, 2013 and provided a July 31, 2014 report. Dr. Watson described
his examination of the plaintiff but did not offer an opinion regarding the
injuries or cause. He said “there could be a number of different mechanisms
causing his various pains”. He observed that the plaintiff had a muscular
dysfunction and pelvic misalignment. His sphenoid bone was out of place as were
other cranial bones.

[148]     On April
1, 2014 Dr. Watson did prolotherapy treatment on the plaintiff’s low back
resulting in three-and-a-half weeks of post-injection pain. He performed more
treatments on the plaintiff on May 14, 2014 including a sacrum adjustment to
level out his iliac spine. Treatments at that time helped reduce his back pain
a small amount. He said that his prognosis was guarded and was not certain that
any treatments currently available would resolve his pain issues. This doctor’s
opinion was of little assistance.

Dr. Rehan Dost

[149]     Dr. Dost
provided a neurological opinion concerning the plaintiff on June 16, 2014. He
examined the plaintiff and was provided more than 300 pages of records and
copies of reports from several physicians who gave evidence in this proceeding.
He concluded that the plaintiff had complaints of cervical spine pain with
radiation to both arms, low back pain with radiation to the right leg with
sensory symptoms and with recent onset of radiation pain in the left leg,
chronic daily headaches, sleep disruption, psychological issues, cognitive
difficulty, tinnitus and dizziness.

[150]     He opined
that the plaintiff did not suffer a brain injury as a result of the collision,
rather he has cognitive issues that reflect psychological factors and chronic
pain the plaintiff is currently experiencing.

[151]     He said
that the plaintiff’s cervical, bilateral shoulder, lumbar spine pain and leg
pain are not neurological in origin. He has myofascial trigger points
throughout his trapezius and lumbar paraspinal muscles which reproduce his
referred pain to the arms and legs. This he said is consistent with Dr. Mutat
and Dr. Heran’s opinions.

[152]     Finally,
he said that the plaintiff’s complaint of dizziness with panic attacks is a
psychosomatic phenomenon and not compatible with cochlear concussion.

[153]     He said
that a diagnosis of cochlear concussion is unlikely because tinnitus would have
been almost immediate at the scene and there were no complaints to his
physician after the accident. Nevertheless, tinnitus is common with chronic
head pain or chronic pain in general.

[154]     Finally,
he opined that the plaintiff’s chronic headaches were associated with his
whiplash injury and perpetuated by psychological factors. He suggested a trial
of Botox injections.

Dr. Winston Gittens

[155]     The
defendant tendered the expert opinion from Dr. Winston Gittens; he is a
neurosurgeon. Dr. Gittens assessed the plaintiff on August 12, 2014. He observed
that the plaintiff suffered early degenerative disc disease in the cervical and
lumbar areas of his spine. The accident resulted in soft tissue injuries to his
neck, low back and pain in his right lower extremity. The accident resulted in
post-traumatic headaches and post-traumatic dizziness probably resulting from a
vestibular dysfunction.

[156]     He
concluded that the plaintiff did not have a concussion in spite of the fact he
may have struck his head on the steering wheel. Dr. Gittens believes the
plaintiff’s good memory of the events surrounding the accident and his
interactions with his wife indicate he was functioning well after the accident.

[157]     Mr. Koltai
had persistent musculoskeletal symptoms affecting his neck and lower back that
resolved quite well when he was assessed by Dr. Heran. Although Dr. Gittens
referred to a 2011 consultation report from Dr. Heran concerning the
plaintiff, that report was not in evidence in this trial. He suffered some
cognitive symptoms which are not related to the accident or the trauma to his
head. He observed that Dr. Heran and Dr. Singh observed normal
neurological examination results.

[158]     Dr. Gittens
said that the plaintiff’s cervical, bilateral shoulder, lumbar spinal and leg
pain were not neurological in origin. He suffered multiple myofascial trigger
points throughout his trapezius and lumbar paraspinal muscles including pain in
the arms and legs.

[159]     Regarding
the plaintiff’s claim of tinnitus and dizziness, Dr. Gittens said that a
vestibular concussion would have resulted in immediate symptoms at the scene.
The plaintiff was able to drive from the scene which would be unusual for a
person with vestibular concussion. He did not comment on the fact that the
plaintiff’s claim of tinnitus did not arise until six months after the
accident.

[160]     The
plaintiff has diffuse chronic pain and pain magnification that was mainly
myofascial in origin. He may have psychological factors contributing to his
chronic pain disorder. He concluded that the plaintiff’s symptoms are likely to
persist although he may improve with aggressive management of his pain. He does
not believe that the presence of degenerative change at C5 to C6 is significant
enough to compromise his neurological structures. He did not believe that the
accident exacerbated any of his pre-existing degenerative conditions.

Dr. Niloofar Chitsaz

[161]     Dr. Chitsaz
was the plaintiff’s treating physician from the time of the accident onwards. She
provided reports dated June 13, 2012 and December 22, 2013.

[162]     Dr. Chitsaz
first treated the plaintiff May 8, 2011. He reported that he had been driving
on 200^th Street in Langley when his vehicle was rear-ended while
stopped at a red light. He hit his head on the steering wheel on the left side.

[163]     At that
time he complained of headaches, neck pain and stiffness, dizziness and lower
back pain with pain radiating to his right leg and tingling in that leg.

[164]     She saw
him ten times during 2011. She opined that he had suffered a concussion and
whiplash neck injury with a low back strain and radiculopathy to his right leg.

[165]     Her
opinion was that his neck whiplash injury was between grade levels two and
three. His neck and shoulder pain with radiation to both arms were constant and
his low back injury was a grade three with radiation to his right leg.

[166]     She
continued to see the plaintiff on a monthly basis into 2012/2013. He was
unsuccessful with physiotherapy treatments but achieved some benefit from
chiropractic treatment and hydrotherapy. By November 2013 he had shown no
improvement in symptoms, had antalgic gait, myofascial pain patterns, and multiple
tender spots on the upper and lower back area. She concluded it was not
possible to expect a full recovery but observed he benefitted from water
exercise and short distance walking and stretching.

[167]     She said
that her review of the video surveillance of the plaintiff did not change her
opinion. In cross-examination, she confirmed that the history given by the
patient is the most important information she receives and she accepts that
information as true without any critical analysis.

[168]     She
discussed her recommendation that the plaintiff use Xanax partly because of his
mother’s medical condition. He was prescribed two tablets daily. The drug is
highly addictive and patients can become dependent if caution is not used.

[169]     Xanax is
given for generalized anxiety and is not prescribed for pain. She advises
patients not to exceed the prescribed dosage because it has a tolerance
buildup. Xanax is a sleeping medication that sedates some patients. Taking more
than the prescribed amount can cause sedation and drowsiness.

[170]     She does
not prescribe Xanax tablets at bedtime nor would she prescribe any more than
two tablets later in the evening. If Mr. Koltai took six Xanax tablets
within a two to three hour period she would expect him to be sedated; she said
that the sedative effect of Xanax reduces a person’s activity tolerance.

[171]     She also prescribed
Cesamet for the plaintiff beginning in February 2012. This medication is
helpful for pain control and sleep issues. She said that the side effects of Cesamet
include brain fogginess and drowsiness. The plaintiff did not complain of those
effects but she expects it can cause gastrointestinal problems, psychological
disruption of mental status, confusion and a sense of not feeling themselves.
Cesamet can lead to brain fog and inhibits clear thinking and causes headaches,
memory problems, and dizziness.

[172]     She eventually
set the plaintiff’s prescription at 2 mg per day but she was not aware he was
taking 2 mg in the morning and 2 mg in the evening, or more. She does not
recommend exceeding dosages.

[173]     She
testified that taking more Cesamet increases the likelihood of the side effects.

[174]     Dr. Chitsaz
prescribed Gabapentin for neuropathic pain. Generally, she does not prescribe
this medication; she said sedation and reduction in blood pressure are possible
side effects of it.

[175]     She
confirmed that the first mention of tinnitus by the plaintiff occurred in
January 2012.

[176]     She
referred the plaintiff for an x-ray in May 14, 2011 after her fourth visit with
him and ordered a CT scan in June 2011.

Dr. Derryck Smith

[177]     Dr. Smith
is a psychiatrist and, at the request of the defendant, provided an opinion
dated August 8, 2014. He provided a supplementary report which, after argument,
was admitted into evidence.

[178]     Dr. Smith’s
initial diagnosis and summary are as follows:

(a)      somatic symptom disorder
with predominant pain;

(b)      insomnia
disorder adjustment disorder with mixed anxiety and depressed mood;

(c)      widespread
soft tissue injury pain – diagnosis deferred to other experts;

(d)      evidence
of left-hand carpal tunnel syndrome – deferred to other experts;

(e)      reported
possible vestibular dysfunction – diagnosis deferred to other experts.

[179]     Dr. Smith
said the plaintiff came to his office July 29, 2014. On that day the plaintiff
was walking extremely slowly and using a cane in his right hand. He grimaced
and gasped with pain throughout the interview.

[180]     In his testimony
he noted that the plaintiff was against the idea of taking psychiatric
medications. He testified that chronic pain is difficult to treat if it has
lasted for three years and he hoped there would be improvement with treatment;
the outcome was still uncertain. Dr. Smith echoed Dr. Anderson’s
recommendations that the plaintiff undergo a trial of antidepressants, a
program of active rehabilitation, and a multidisciplinary rehabilitation program.

[181]     Dr. Smith
provided a second report dated November 19, 2014. He had reviewed the video
surveillance of the plaintiff.

[182]     In the
second report by Dr. Smith he addressed some issues concerning his earlier
report. He said as a psychiatrist, he places considerable weight on information
obtained directly from patients and that he had grave concerns about the weight
he could give to the plaintiff’s reports, given the “inconsistencies in his
presentation and lack of effort on testing”.

[183]     Dr. Smith
had reviewed a report from Orion Health Clinic and compared the video of the
plaintiff with the description from Orion Health Clinic and the information he
had obtained from the plaintiff. He determined that his movements were quite
different.

[184]     Dr. Smith’s
opinion was that the plaintiff’s appearance on the video did not seem to
reflect that he was in severe pain. However, when the doctor observed the
November 3, 2014 video of the plaintiff at Orion Health Clinic, he observed the
plaintiff to be walking extremely slowly, using a cane and supported by a
woman.

[185]     Dr. Smith
acknowledged that he did not have any information about the plaintiff’s use of
medications on either date and was not aware whether the plaintiff had taken
medications.

[186]    
He said that the new information:

…causes me to considerably alter
my previous opinion to you. I am now uncertain as to whether Mr. Koltai
has any bona fide psychiatric diagnosis at all. I therefore am uncertain as to
whether he should be referred to a psychiatrist for assessment or treatment.
Even the issue of whether he does or does not have insomnia disorder is in some
dispute as I made that diagnosis based entirely on self-report without any
objective data from a sleep laboratory, for example.

[187]    
Dr. Smith went on to say:

I have real concern that Mr. Koltai
does not appear to be experiencing pain in a number of the sequences in which
he has been under video surveillance.

[188]    
Lastly, he concluded:

I am uncertain as to whether Mr. Koltai
truly qualifies for any of the psychiatric disorders that I outlined to you in
my original report.

[189]    
Thus, in Dr. Smith’s second report, he resiles from the opinions
given in his first report. His review of the video surveillance has strongly
influenced his opinion; he said that the plaintiff appeared to be quite
different than when he appeared at his office for an interview.

Megan Stacey

[190]     Ms. Stacey
is an occupational therapist qualified to give expert evidence in this
proceeding. She provided a twofold opinion; the first part was an assessment of
the plaintiff’s physical strengths and limitations regarding employability; the
second part includes her opinion concerning the future care costs to restore
the plaintiff’s level of independence to his pre-injury status.

[191]     She
concluded that the plaintiff has significantly decreased activity tolerances
partly related to the poor management of his physical symptoms. She opined he
would be unable to attend a workplace on a reliable basis and would be unable
to meet productivity standards with respect to quality or quantity of work.

[192]     One of her
observations was “he was able to lift a 2.5 pound weight but declined to lift
more for fear of dropping the weight and injuring himself or damaging his home”.
She concluded he is not presently employable as a result of the high levels of
pain, poor pain management and decreased tolerance to activity.

[193]     Before he
was assessed by Ms. Stacey, he was told to take his medications; he did
not take his medications. She said she was unable to test a patient’s full
capacity if treating medications were not taken before the assessment. On the
second day of her assessment, the plaintiff told her he had taken medications
before she arrived at his house but she observed him taking medication at 9:45
AM, 11:18 AM and again after lunch. The plaintiff was not able to confirm when
he took his medications that day.

[194]     I will
address Mrs. Stacey’s opinion concerning the plaintiff’s future care needs
further in these reasons.

Shelley Dornian

[195]     Ms. Dornian
is an occupational therapist who was employed by Orion Health Services on
November 3, 2014. In her role she worked in pain management and met with the
plaintiff for one hour on that day. She was examining his functional ability to
lift and carry objects.

[196]     She
discussed Mr. Koltai’s walking tolerance and he told her he could walk
only a few feet without a cane. With a cane he was capable of walking for 10-15
minutes.

[197]     She
observed him walk slowly towards an elevator; he appeared focused on his pain.
He stopped walking twice in a period of 30 seconds and then reported electric
shock type pain.

[198]     She
observed the plaintiff climbing stairs as part of her assessment. She described
him climbing with a two-step pattern, one foot up then the next foot to the
same step and repeated. This is in contrast to the normal climbing pattern of
each foot landing on an alternating step.

[199]     After he
had been with Ms. Dornian for one hour he said he could not perform any
bilateral lifting.

Plaintiff’s Positon

[200]     The
plaintiff argued that his case should be assessed on the basis that it is now
three years post-accident and his symptoms of chronic pain, and emotional,
cognitive and physical symptoms stemming from chronic pain are unresolved and
will likely be permanent. The result is that Mr. Koltai should be
compensated on the basis that there is no reasonable possibility he will again
be economically productive

[201]     The
plaintiff also argued that the outcome in this case depends on his credibility
and the nature and extent of the injuries that were caused in the collision. He
contends that his evidence concerning his ability to walk is consistent with
the video surveillance evidence and those videos do not erode his credibility.
He said there is no evidence about the plaintiff’s physical state after the
video surveillance ends.

[202]     The
plaintiff does not seek a finding that he sustained a brain injury in the
collision.

[203]     He
contends that his low back pain is the worst of all symptoms and that he
suffers electrifying pain that shoots down his leg to his right foot. He finds
walking aggravates his pain and he is currently restricted to walking 15
minutes at a slow pace.

[204]     His neck
pain radiates into his arms and his worse at night. He claims his neck is less
stiff with the use of Xanax. The accident causes him daily headaches, ringing
in his ears, impaired memory, and nightmares.

[205]     He
contends that the injuries have dramatically impacted his family life, his
relationship with his wife, his emotional stability, his economic future, and
his overall enjoyment of life.

Defendant’s Position

[206]     The
defendant submits that there are significant credibility problems with the
plaintiff’s evidence, which are outlined later in these reasons. The defendant
also contends that the unreliability of the plaintiff’s evidence and his wife’s
evidence is palpable and that I cannot rely on their description of the nature
and extent of his injuries. Correspondingly, I cannot rely on the opinions of
the physicians and psychologists because no one obtained a reliable picture of Mr. Koltai’s
condition to enable them to give an accurate diagnosis and prognosis.

[207]     The
defendant further contends that the Court should draw adverse inferences from
the fact that none of the plaintiff’s father, sister, brother-in-law or
youngest son was called to give evidence. The defence contends that each of
these people would have been in a good position to corroborate the plaintiff’s
evidence regarding good days and bad days and his total incapacity. The defence
argues that Mr. Koltai’s father could have given key evidence concerning
the donation of the back brace to his son.

[208]     The
defendant suggests that there is such weakness in the plaintiff’s credibility
and reliability that I cannot conclude that the plaintiff has proven his case,
on the balance of probabilities, the defendant does not deny that the plaintiff
was injured in the accident but encourages the court to award damages at a
modest level, in part because plaintiff’s descriptions of his symptoms and
limitations cannot be believed.

Analysis and Conclusions

Credibility

[209]     This is a
difficult case to assess because much depends on the plaintiff’s credibility
and there are differential conclusions resulting from any adverse credibility
findings. As is common, medical expert opinions are largely dependent on the
accuracy of information from the patient and when a patient’s credibility is
eroded, the findings concerning the prognosis and diagnosis of injury are compromised.

[210]     Credibility
cannot be gauged solely by the test of whether the demeanour of a particular
witness carried conviction of the truth. The challenge is to assess the
reliable evidence given by each witness and weigh the inherent probabilities
and improbabilities of their versions of the events. The test of the truth of
the story of a witness must be its harmony with the preponderance of the
probabilities which a practical and informed person would readily recognize as
reasonable in that place and in those conditions: Faryna v. Chorny,
[1952] 2 D.L.R. 354 (B.C.C.A.) at para.11.

[211]    
In R. v. H.C., 2009 ONCA 56, Watt J.A. for the Court addressed
the distinction between credibility and reliability. He said:

[41]      Credibility and reliability are different.
Credibility has to do with a witness’s veracity, reliability with the accuracy
of the witness’s testimony. Accuracy engages consideration of the witness’s
ability to accurately

i.          observe;

ii.         recall; and

iii.         recount events in issue.

Any witness whose evidence on an
issue is not credible cannot give reliable evidence on the same point.
Credibility, on the other hand, is not a proxy for reliability: a credible
witness may give unreliable evidence: R. v. Morrissey (1995),1995 CanLII
3498 (ON CA), 22 O.R. (3d) 514, at 526 (C.A.).

[212]    
Dillon J. described a useful process for credibility assessments in Bradshaw
v. Stenner, 2010 BCSC 1398 at para 186:

[186]
Credibility involves an assessment of the trustworthiness of a witness’
testimony based upon the veracity or sincerity of a witness and the accuracy of
the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919),
1919 CanLII 11 (SCC), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of
assessment involves examination of various factors such as the ability and
opportunity to observe events, the firmness of his memory, the ability to
resist the influence of interest to modify his recollection, whether the
witness’ evidence harmonizes with independent evidence that has been accepted,
whether the witness changes his testimony during direct and cross-examination,
whether the witness’ testimony seems unreasonable, impossible, or unlikely,
whether a witness has a motive to lie, and the demeanour of a witness generally
(Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont.H.C.); Farnya v. Chorny,[1952]
2 D.L.R. 152 (B.C.C.A.) [Farnya]; R. v. S.(R.D.), 1997 CanLII 324
(SCC), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of
the evidence depends on whether the evidence is consistent with the
probabilities affecting the case as a whole and shown to be in existence at the
time (Farnya at para. 356).

[213]    
In several cases including Ahmadi v. West, 2014 BCSC 2050, the
court has embraced the comments of Dillon J. particularly when assessing
credibility and the impact on medical evidence where a plaintiff’s testimony is
rejected by the trier of fact.

[214]    
In Pacheco v. Antunovich, 2015 BCCA 100 the Court of Appeal
overturned a trial judge’s conclusions on a plaintiff’s credibility. The Court
focused on additional comments in Farnya that better informed the court
on how to deal with credibility and reliability questions. The Court said:

[42]      However, this passage must be viewed in the context
of the balance of that decision, in which O’Halloran J.A. went on to eloquently
explain the factors to be considered in such an assessment:

[11]      … Again a witness may
testify what he sincerely believes to be true, but he may be quite honestly
mistaken. For a trial Judge to say “I believe him because I judge him to be
telling the truth”, is to come to a conclusion on consideration of only half
the problem. In truth it may easily be self-direction of a dangerous kind.

[12]      The trial Judge ought to
go further and say that evidence of the witness he believes is in accordance
with the preponderance of probabilities in the case and, if his view is to
command confidence, also state his reasons for that conclusion. The law does
not clothe the trial judge with a divine insight into the hearts and minds of
the witnesses. And a Court of Appeal must be satisfied that the trial Judge’s
finding of credibility is based not on one element only to the exclusion of
others, but is based on all the elements by which it can be tested in the
particular case.

…The House, Lord Atkin presiding,
came to that conclusion because it was satisfied that the evidence of the
witnesses disbelieved by the trial Judge was entirely consistent with the
probabilities and the business conditions proved to be in existence at the
time.

[16] Commenting on the Unilever case in Yuill
v. Yuill, Lord Greene said that it showed how important it is that a trial
Judge’s impressions on the subject of demeanor should be carefully checked by a
critical examination of the whole of the evidence, and added that, if the trial
Judge in the Unilever case had done so, as was done in the House of
Lords, then he could not have disbelieved the witnesses as he did.

[Emphasis added.]

[215]     The
defence highlights several aspects of the plaintiff’s evidence that they submit
warrant unfavourable conclusions as to his credibility and reliability. These
are:

(a)      The
plaintiff testified that his ability to walk improved after his father loaned
him a back brace on October 1, 2014 and he started taking the medication Xanax.
The defence argues that the plaintiff concocted this explanation after he
became aware of the surveillance videos from October to November 2014 showing
him walking without the limitations or restrictions he claims existed at that
time. This is important, because between the spring of 2014 and October 1, 2014
the plaintiff claimed to be severely limited in his mobility and suffering pain
that was observed by his father who was living at the plaintiff’s residence.
The defence contends that the plaintiff has not established why his father did
not offer the back brace in the five to seven months before October if he knew
the plaintiff was suffering and in pain, and it is an otherwise unexplained
coincidence that his father gave him a back brace to improve his function in
October 2014 which, coupled with his use of Xanax, gave him sufficient pain
relief to walk without a cane and without any apparent evidence of pain.

(b)      The
plaintiff testified that he ingested Xanax in combination with the use of the
back brace to achieve periods of pain relief that permitted him to perform the
activities seen on the surveillance video. The plaintiff testified that when he
started to take Xanax in September 2014 in combination with his other
medications and using the back brace he started having his first good days. The
defence contends that the plaintiff’s evidence regarding Xanax and pain relief
is unbelievable. Dr. Chitsaz said that Xanax was prescribed for anxiety
and for no other purpose, and was not likely a cause of pain relief. Furthermore,
the plaintiff was taking excessive amounts of Xanax (well above the prescribed
dosage) and would have been sedated at the times he was observed on video
surveillance.

(c)      The
plaintiff testified that the only good days he had experienced since the accident
were the days he is seen on the surveillance video being active. He claimed to
have had a bad experience every attendance at his doctor’s office or when he
attended assessments for the defence experts. The defence contends this is
unbelievable.

(d)      The
plaintiff claimed that the heaviest thing he has lifted since the motor vehicle
accident was a half full 4L jug of milk moved from his fridge to his counter.
In cross-examination he admitted that he could lift a half full 4L jug of milk
from the ground but not for a long time and not consistently. In
cross-examination and after watching the video surveillance, he said he could
carry that same jug across a parking lot. He testified that if he picked a jug
of milk and carried across a parking lot, he would be in agony in extreme pain
and would have to relax for most of the balance of the day, but he would not
have to relax if he was experiencing a good day. In the video, it was apparent
the plaintiff did not relax after carrying a partially filled jug of milk and
50 minutes later was observed taking a walk. He did not appear in agony and
walked at a normal place.

(e)      In
March 2014 the plaintiff was assessed by Ms. Stacey. At that time the
plaintiff informed Ms. Stacey that the most he could carry was a loaf of
bread or bag of chips and no more. When cross-examined about the evidence that
he could carry a jug of milk, he qualified his pre-trial statement to Ms. Stacey
by saying that he cannot carry a jug of milk for long periods of time, he said
“maybe for five seconds”, though he obviously carried the half full milk jug
longer than five seconds in the video surveillance.

(f)       In
the video surveillance, the plaintiff ascended stairs in a step-through pattern
which he had not been able to do when assessed by Ms. Stacey and Ms. Dornian.

(g)      The
defence also focused on the plaintiff’s evidence concerning his stressed
financial circumstances arising from the accident. I have addressed those
earlier and repeat that there is an inconsistency between his evidence, his
wife’s evidence and the underlying facts.

[216]     The
defence pointed out other inconsistencies in the plaintiff’s testimony. The
plaintiff gave inconsistent answers regarding his loss of consciousness at the
scene of the accident. In the examination in chief, he said that he must have
lost consciousness for 10 seconds, but later said he could not recall whether
he lost consciousness. He testified that he had nightmares every night but told
Dr. Anderson in February 2014 that he had nightmares a couple of days a
week. The plaintiff testified that on December 1 his family doctor suggested
x-rays and a CT scan; that was incorrect as the doctor made those
recommendations later in his treatment of the plaintiff. The plaintiff
testified that he had a sore neck the next day but told Dr. Mutat that he
started having neck pain and headaches two to three weeks after the accident.
In his examination in chief the plaintiff said that he was involved with a beer
league softball team before the accident. When cross-examined, he acknowledged
that he was not on a softball team in 2011 even though the season had started
before the accident. These types of inconsistencies erode the plaintiff’s
credibility.

[217]     The
defence points out that the plaintiff’s answers regarding his ability to walk
were also variable. He said he can walk for 15 minutes at a slow walk; he said
he tried fast walking up to 15 minutes and once he reached that level he was in
extreme pain. He said since wearing the brace and taking Xanax he can walk
longer; he said he can walk 20 minutes with a break. However Shelley Dornian
reported that the plaintiff said he could only walk a few feet without his
cane; he denied this at trial.

[218]     The
defence focused on the plaintiff’s allegation that his memory had deteriorated
to the point that he could not recall the security access code to his house.
Apparently there was different technology that could have been used to
facilitate his access and he could have obtained a key to allow him access. It
seems reasonable to conclude that there were other strategies that he could have
taken to ameliorate this problem.

[219]     I have
grave reservations about the plaintiff’s reliability and credibility in his
presentation to the Court. As I have outlined above, the defence made
significant challenges to his credibility which I agree compromised his
credibility. I also note various other inconsistencies, including:

a)    the plaintiff
described his wife’s considerable contribution to the cleaning business
including labour and administrative work; she contradicted him and said that
her involvement in the cleaning services was minimal and she only attended to
spend time with him;

b)     his use of
Xanax and Cesamet above the prescribed dosage; and the fact that his overuse of
Xanax may have caused side effects that are the very symptoms the plaintiff
claims were caused in the accident;

c)     the
plaintiff’s practice of attending his medical advisors and investigators
without taking his pain medications or using his brace because he wanted them
to see him at his worst;

d)    the fact that he
did not report tinnitus until six months after the accident and the fact that
he did not have pain or headaches until two to three weeks after the accident;

e)    the fact that he
said he did the vacuuming in his house before the accident and his children do
it now, but later admitted the boys were vacuuming before the accident;

f)      the
plaintiff’s claim to memory problems evident in his inability to remember the
door code was not believable. Firstly, his son was home during the days and
could have responded, his wife worked for a lock company and he could have
obtained a lock enabling him to use a key for entry, and he could simply have
written down the code and taken it with him;

g)    The plaintiff’s
physical demeanour during the trial was fairly consistent with his evidence
about his physical limitations since the accident. I observed that there was a
marked difference between his movement in Court and his movement seen on the
video surveillance. The plaintiff said that the occasions when he is seen on
the video surveillance were his only good days since the accident and occurred
only after he began taking Xanax and using his father’s back brace. However,
the plaintiff wore his back brace at trial and I find the differences in his
movements at trial compared to the video surveillance confirms my view that,
for whatever reason, his physical movements were unnecessarily restricted and
exaggerated during the trial.

[220]     I am
unable to conclude that the plaintiff’s description of his limitations in
movement and his capacity to lift and carry objects is entirely reliable. I
have reached this conclusion because there are inherent improbabilities in his
testimony concerning his limitations. The differences in his physical
performance observed on the video surveillance and compared to his physical presentation
at trial and when he was attending the Orion Health Clinic erode my confidence
in his reliability. I accept that the video surveillance was carried out over
short periods of time and there is a paucity of evidence concerning his
physical state before or after those incidents. However, these inconsistencies
coupled with the other flaws in his testimony lead me to conclude that the
truth of the story of a witness is not in “harmony with the preponderance of
the probabilities which a practical and informed person would readily recognize
as reasonable” at those times and places referred to.

[221]     I will
address the impact of this adverse credibility assessment in the conclusions
under each head of damage.

Adverse Inference

[222]     The
defendant seeks an adverse inference because of the plaintiff’s failure to call
evidence from his father, sister and brother-in-law.

[223]     The
defence contends that the plaintiff’s father, sister and brother-in-law would
not have corroborated the plaintiff’s evidence regarding the onset of good days,
which the plaintiff stated occurred six times coinciding with the days he is
seen on the surveillance video. The plaintiff’s sister and brother-in-law would
also have had helpful evidence concerning his condition after the accident.

[224]     The defence
contends that the plaintiff was obliged to call his father as a witness at
trial to corroborate the coincidence of the gift of the back brace in October
2014 with the improvement in the plaintiff’s ability to function. The defence
contends that the plaintiff should bear the burden of proving that the father
gave the plaintiff a back brace in October 2014. The defence says the father
was a necessary witness to establish that the back brace was given to the
plaintiff on October 1, 2014; the father could have explained why the back
brace was not offered in the five to seven months before October. Defence
counsel observed that the plaintiff’s father was in or around the courthouse
during the trial, and could easily have been called to testify.

[225]     The
defence relies on Barker v. McQuahe, [1964] B.C.J. No. 31 and McTavish
v. MacGillivray, [1997] B.C.J. No. 1719 for the proposition that a
failure to call a witness who might be expected to give important supporting
evidence is subject to a natural inference that the party fears to do so
because the evidence would expose facts unfavourable to that party.

[226]    
In McIlvenna v. Viebig, 2012 BCSC 218 the court adopted the
principle that a failure to call a witness with potentially important evidence
to a party’s case was grounds for the trier of fact to presume that the
evidence would have been adverse in nature. The inference cannot be drawn if
there is a legitimate explanation for failing to call a witness: see also Buksh
v. Miles, 2008 BCCA 318, Papineau v Dorman, 2008 BCSC 1443 and Doerksen
v. Koo, [1994] B.C.J. No. 700 (S.C.).

[227]    
The question of adverse inferences is addressed in J. Sopinka, S.N.
Lederman and A.W. Bryant, The Law of Evidence in Canada, 2d ed.
(Toronto: Butterworths, 2009) where the authors state at 377:

In civil cases, an unfavourable
inference can be drawn when, in the absence of an explanation, a party litigant
does not testify, or fails to provide affidavit evidence on an application, or
fails to call a witness who would have knowledge of the facts and would be
assumed to be willing to assist that party. In the same vein, an adverse
inference may be drawn against a party who does not call a material witness
over whom he or she has exclusive control and does not explain it away. Such
failure amounts to an implied admission that the evidence of the absent witness
would be contrary to the party’s case, or at least would not support it.

[228]    
The principles governing adverse inferences were also discussed in R.
v. Jolivet, 2000 SCC 29 at paras. 25-28, where the Court said:

25.       The general rule developed in civil cases
respecting adverse inferences from failure to tender a witness goes back at
least to Blatch v. Archer (1774), 1 Cowp. 63, 98 E.R. 969, where, at
p. 65, Lord Mansfield stated:

It is certainly a maxim that all
evidence is to be weighed according to the proof which it was in the power of
one side to have produced, and in the power of the other to have contradicted.

26.       The principle applies in criminal cases, but with
due regard to the division of responsibilities between the Crown and the
defence, as explained below. It is subject to many conditions. The party
against whom the adverse inference is sought may, for example, give a
satisfactory explanation for the failure to call the witness as explained in R.
v. Rooke (1988), 1988 CanLII 2947 (BC CA), 40 C.C.C. (3d) 484 (B.C.C.A.),
at p. 513, quoting Wigmore on Evidence (Chadbourn rev. 1979), vol.
2, at para. 290:

In any event, the party affected by
the inference may of course explain it away by showing circumstances
which otherwise account for his failure to produce the witness. There should be
no limitation upon this right to explain, except that the trial judge is to be
satisfied that the circumstances thus offered would, in ordinary logic and
experience, furnish a plausible reason for nonproduction. [Italics in
original; underlining added.]

27.       The party in question may have no special access to
the potential witness. On the other hand, the "missing proof" may lie
in the "peculiar power" of the party against whom the adverse
inference is sought to be drawn: Graves v. United States, 150 U.S. 118
(1893), at p. 121. In the latter case there is a stronger basis for an
adverse inference.

28.       One must also be
precise about the exact nature of the "adverse inference" sought to
be drawn. In J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of
Evidence in Canada (2nd ed. 1999), at p. 297, para. 6.321, it is
pointed out that the failure to call evidence may, depending on the
circumstances, amount "to an implied admission that the evidence of the
absent witness would be contrary to the party’s case, or at least would not
support it" (emphasis added), as stated in the civil case of Murray
v. Saskatoon, 1951 CanLII 202 (SK CA), [1952] 2 D.L.R. 499 (Sask. C.A.), at
p. 506. The circumstances in which trial counsel decide not to call a
particular witness may restrict the nature of the appropriate "adverse
inference". Experienced trial lawyers will often decide against calling an
available witness because the point has been adequately covered by another
witness, or an honest witness has a poor demeanour, or other factors unrelated
to the truth of the testimony. Other jurisdictions also recognize that in many
cases the most that can be inferred is that the testimony would not have been
helpful to a party, not necessarily that it would have been adverse: United
States v. Hines, 470 F 2d 225 (3rd Cir. 1972), at p. 230, certiorari
denied, 410 U.S. 968 96 (1973); and the Australian cases of Duke Group Ltd.
(in Liquidation) v. Pilmer & Ors, [1998] A.S.O.U. 6529 (QL), and O’Donnell
v. Reichard, [1975] V.R. 916 (S.C.), at p. 929.

[229]     I am not
satisfied that the defendant’s assertion that the plaintiff’s father should
have testified to the details of the date and time he loaned the back brace to
his son is correct. Further, I am not satisfied that the plaintiff’s failure to
adduce his father’s evidence concerning his observations of the plaintiff up to
September 2014 is an issue that should give rise to an adverse inference. I do
not consider the type of the evidence that the plaintiff’s father could have
given was necessarily corroborative of a fact that the plaintiff was obliged to
prove in this case; the point raised by the defendant was not essential to the
plaintiff’s claim. The issue only arises in the context of cross examination
because the defendant contends that the plaintiff has been untruthful
concerning his ability to walk and do other things and that the plaintiff was
obliged to prove that his father loaned him the back brace on October 1, 2014.

[230]     Further, I
am not satisfied that the plaintiff’s father was within the plaintiff’s
exclusive control; the defendant could easily have subpoenaed the plaintiff’s
father to testify on this point.

[231]     In the
context of these circumstances, I am not satisfied that it is appropriate to
draw an adverse inference. Any inference would likely have been limited to the
fact that the father’s evidence would not have helped the plaintiff’s case
rather than an inference that the plaintiff was untruthful when he described
the circumstances under which he received the brace.

[232]     The
defendant said that an adverse inference should also be drawn because the
plaintiff failed to call his sister, brother-in-law and father to testify about
his condition in October 2014. The plaintiff’s wife was able to testify at
about his circumstances from the date of the accident forward and the plaintiff
is not obliged to call every person who had knowledge of his pre-and post-accident
circumstances. These witnesses are simply not the type of witness contemplated
in the adverse inference rule.

Conclusions

[233]     The
overarching submission of the defendant is that the plaintiff lacked
credibility and reliability in his trial testimony and in his reporting to the
treating physicians and independent assessors. Typically treating and
investigating physicians must be able to rely on the truthfulness and accuracy
of patients in order to assess the different possibilities concerning the
symptoms reported to them. It appears to be the case that the health
professionals who treated the plaintiff did so without critical analysis of all
of the information he presented. I nonetheless must do the best I can with the
evidence before me.

[234]     In
assessing the medical opinions I have paid attention to the inconsistencies
highlighted by the defendant and several others that emerged from the evidence,
I do not have complete confidence in the plaintiff’s evidence or his
communications and reports to the physicians who have assessed him.
Nonetheless, it is clear to me that this was a significant rear end collision
and the plaintiff more likely than not struck his head on the steering wheel. I
accept that it is unlikely the defendant’s vehicle was travelling at 80 km/h or
that any head injury is a factor in his current medical state.

[235]     I find
that the plaintiff has suffered significant psychological consequences as a
result of the physical injuries he sustained in the accident. The accident
seems to have triggered an exaggerated psychological response that leaves the
plaintiff convinced that he has a serious and dangerous condition and that he
has not been treated for his maladaptive approach to his current condition. I
conclude that the plaintiff’s excessive use of Xanax has a significant sedating
impact on him and that his use of more medication than prescribed is likely to
be causing unhelpful side effects.

[236]     I accept
that the physical injuries he suffered in the accident likely contributed to
his ongoing somatic symptom disorder, or chronic pain with mixed anxiety and
depressed mood. These features in conjunction with tinnitus, medication side-effects,
fatigue and insomnia have adversely affected his cognitive function.

[237]     I accept
that the plaintiff had degenerative disc disease in his upper and lower back
before this accident happened and, although it is no longer the cause or origin
of his pain disorder, it was likely a contributing factor to the pain that
developed after the accident. I accept that the plaintiff suffered physical
injuries superimposed on his degenerative upper and lower spine, that he is
somewhat obsessed with his pain and has developed an inability to cope with the
pain. Clearly, it has had a measurable impact on him.

[238]     I found Dr. Schmidt’s
opinion persuasive in regard to the psychological implications of the
plaintiff’s injuries. His report was measured and incisive. I agree with his
conclusion that the plaintiff has elements of post-traumatic stress disorder
and maladaptive beliefs about dealing with his pain and that psychological
intervention has not been adequately pursued till this point in time. This
approach is echoed in Dr. Anderson’s opinion.

[239]     However, I
am also satisfied that the plaintiff’s limitations or chronic pain are not at
the level described by Dr. Anderson and others.

[240]     I accept Dr. Dawson’s
opinion that a cochlear concussion causing tinnitus was possible but not likely
because tinnitus would have resulted immediately at the scene and there were no
complaints in his family physician’s records until six months after the
collision. The plaintiff’s testimony and report to his physician that his
tinnitus did not start until six months after the accident supports the
conclusion that it was not likely caused by the accident. The contrary opinions
on this issue do not seem to have taken into account the six month delay in
symptom onset as a factor in their diagnosis. I have concluded that the
plaintiff has not established on the balance of probabilities that his tinnitus
symptoms were related to or caused by the accident.

[241]     I note
that, the first diagnosis connecting the tinnitus with the accident came from Dr. Mickelson
and regrettably he did not provide an opinion, although others seem to have
relied on his diagnosis of accident related tinnitus.

[242]     Further, the
plaintiff has not proven that changes to his vision are casually connected to
the accident.

[243]     I also
accept Dr. Dost’s opinion that it is unlikely the plaintiff suffered a
brain injury. His review of the literature and his observations that the
plaintiff’s self-report of being rendered unconscious (not proven by the
plaintiff) are persuasive. The plaintiff himself did not know if he had lost
consciousness and although his wife spoke about him being knocked out, he was
oriented and was not confused. He had enough awareness to check on his wife
examine the damage and drive directly home from the scene. It is also important
to recall that the plaintiff does not allege a brain injury as a feature of his
claims for damages.

[244]     I accept
that Mr. Koltai has chronic headaches associated with whiplash perpetuated
by the psychological factors and sleep alteration that follow the accident.
However, as I have indicated, I am not satisfied that the level of pain he
experiences and the limitations it causes to his movement is as significant as
he alleges.

[245]     The
challenge in assessing the plaintiff’s damages is to provide compensation for
the accident-related changes in his life but not for the effects of tinnitus
and his use of drugs above the prescribed dosage. I am also cognizant that
there are many treatment options that have yet to be tried including the
epidural injection, psychological counselling and other measures that offer a
substantial possibility of further improvement.

[246]     It is also
clear from the evidence that the plaintiff rejected some of the remedial and
rehabilitation suggestions of his doctors. As an example, he was aware that Dr. Mutat
had recommended injections to ameliorate his back pain. His reason for not
having injections was that Dr. Mutat never called him back and he was
waiting to hear from the doctor. Dr. Mutat was abundantly clear in
discussing the possibilities associated with epidural injections, explaining to
the plaintiff that he should do some investigations of his own, and call Dr. Mutat
if he wished to proceed.

[247]     I have
concluded that the plaintiff’s damages must be assessed in light of the above
comments. I do conclude that the plaintiff suffered soft tissue injuries that
have become chronic in several areas of his body. I accept that he has
difficulty with pain, sleep, and headaches, migraines dizziness, neck pain, arm
pain and low back pain that were caused in the accident. His symptoms have
continued for 3.5 years and his complaint of low back pain seems to be the most
troublesome symptom. I accept that he has been disabled from performing his pre-accident
physical work duties and some but not all of his household duties. I accept
that his life revolves around pain and that his family life has been significantly
affected. I do not accept that his physical ability is limited to the extent he
alleges; for example I am of the view that he is more capable of walking and
carrying items heavier than he attested to during pretrial assessments.

[248]     There are
significant measures that can be employed to improve the plaintiff’s condition
and prognosis. I accept that most of the opinions suggest a guarded prognosis
but there does appear to be significant hope of improvement.

Non-pecuniary Damages

[249]    
Non-pecuniary damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life, and loss of amenities. Compensation for
injuries involves a consideration of the unique circumstances and attributes of
the injured party. The amount must be fair to the defendant and plaintiff and fairness
can be analyzed in the context of awards to parties in similar circumstances
with similar injuries. Although fairness is guided by awards in comparable
cases, each plaintiff’s unique circumstances are typically difficult to compare
to other cases. Thus similar cases can only offer a rough guide: Trites v.
Penner, 2010 BCSC 882 at paras. 188-189.

[250]    
The commonly accepted factors relied on in the assessment of non-pecuniary
damages were summarized in Stapley v. Hejslet, 2006 BCCA 34 at para. 46:

[46]      The inexhaustive list of common factors cited in Boyd
v. Harris, 2004 BCCA 146 (CanLII) 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 BCCA 54 (CanLII)).

[251]    
This is not an exhaustive list of factors to consider and it is a major
challenge to weigh and balance the multitude of factors that impact a person
suffering the wide variety of injuries superimposed on him or her.

[252]     The
plaintiff argues that he is a middle-aged man with 25 years left in his working
life whose injuries have permanently changed his life. He suffers physically,
cognitively and emotionally. He is dependent on a daily menu of medications
that do not eliminate his symptoms. He is disabled, frustrated and angry. His
home and family have also suffered with the loss of his income, his company and
his homemaking efforts.

[253]     His social
relationships have suffered and his overall enjoyment of life has diminished with
the changes in lifestyle caused by his current physical and emotional
condition. He has convinced himself that he is without hope.

[254]     The
plaintiff relies on Khosa v. Kalamatimaleki, 2014 BCSC 2060 where non-pecuniary
damages were $140,000; Morena v. Dhillon, 2014 BCSC 141 where non-pecuniary
damages were $130,000; S.R. v. Trasolina, 2013 BCSC 2060 non-pecuniary
damages $130,000; Sekihara v. Gill, 2013 BCSC 1387 where non-pecuniary
damages were $130,000; Slocombe v. Wowchuk, 2009 BCSC 967 where non-pecuniary
damages were $125,000; Marois v. Pelech, 2007 BCSC 1969, aff’d 2009 BCCA
286 where non-pecuniary damages were $130,000.

[255]     The
defendant argues there is little or no objective evidence of injury in this
case and that special attention should be given to the decision of Price v.
Kostryba (1982), 70 B.C.L.R. 397 (S.C.) at paras. 3-4 where the
late Chief Justice McEachern discussed the ongoing problem of assessing
whiplash injuries in the absence of objective evidence.

[256]    
The defendant also cites the warning in Butler v. Blaylock Estate, [1981]
B.C.J. No. 31 (S.C.) that courts should be:

…exceedingly careful when there
is little or no objective evidence of continuing injury and wood complaints of
pain persist for long periods extending beyond the normal or usual recovery.

[257]    
The defendant contends that in the plaintiff’s evidence there is a
deceit or exaggeration that must be separated from the truth concerning his
injuries. An unsatisfactory result in the analysis is typically brought on by
the plaintiff because of his lack of credibility: see Le v. Milburn, [1987]
B.C.J. No. 2690 (S.C.).

[258]     The
defendant contends that the key decisions with comparable circumstances to this
case warrant non-pecuniary damages between $15,000 and $50,000: Sarowa v.
Gill, 2010 BCSC 873 where non-pecuniary damages were $15,000; Willing v.
Ayles, 2009 BCSC 1035 where non-pecuniary damages were $20,000; Volzhenin
v. Haile, 2007 BCCA 317 where non-pecuniary damages were $30,000; Olshanoski
and Fox v. Clemenson, 2006 BCSC 483 where non-pecuniary damages were $35,000;
Lee v. Jarvie, 2010 BCSC 1852 where non-pecuniary damages were $40,000; Fifi
v. Robinson, 2012 BCSC 1378 where non-pecuniary damages were $42,000; and Warren
v. Morgan, 2013 BCSC 708 where non-pecuniary damages were $50,000.

[259]     The
defendant contends that the decisions in Willing, Lee, Fifi, Warren and
Volzhenin inform the court on damages assessments concerning a plaintiff
who had exaggerated symptoms and/or were not believed regarding their
complaints. The circumstances of the injuries of the plaintiffs in these cases
were significantly different than those faced by Mr. Koltai. They are of
limited value in this case.

[260]     The
controversy in this case centres on the question of the true impact of the
injuries on the plaintiff, the extent to which they affect his ability to
function, and whether they are permanent injuries or may improve over time. In
the final analysis, the plaintiff did not persuade me that his injuries will
not substantially improve over time although I accept that there is a guarded
prognosis for full recovery.

[261]     I have
reviewed the cases referred to by counsel and acknowledge that they provide general
guidelines based on the specific circumstances of the parties in those cases
but neither parties’ authorities even closely parallel those extant in this
case. In my view, the plaintiff’s authorities are more helpful in light of some
factual circumstances that are similar to those claimed by the plaintiff in
this case.

[262]     The
findings concerning the plaintiff’s reliability and credibility, the prospects
of significant improvements in his physical and psychological condition, and
the general guarded prognosis offered by the health professionals require me to
achieve a balance assessing damages in the face of uncertainty in the evidence.

[263]    
In the end, an assessment of non-pecuniary damages is necessarily
influenced by the individual plaintiff’s personal experiences with injuries
caused by the accident and the consequences flowing from the defendant’s
negligence.

[264]    
I have considered all of the evidence and in the plaintiff’s
circumstances I have concluded that a fair and proper assessment of the
plaintiff’s non-pecuniary damages is $85,000.

Past Income Loss

[265]     The
plaintiff makes a past income loss claim based on his inability to work since
the date of the accident.

[266]     Winfield
Gene, customer service manager for SBD testified concerning the plaintiff’s
employment with his company now known as Spectrum Brand. He confirmed that the
plaintiff had a contract with SBD to perform dusting and cleaning work at its
facility for $925 per month. The premises were composed of 12,000 square feet.
The plaintiff’s duties included cleaning the lunch room and washrooms.

[267]     The
plaintiff was not paid any bonuses nor did he earn additional income except
when he was requested to do work outside of the contract. As an example,
annually the plaintiff would be requested to strip and re-wax the floors and
was paid extra income for that task. Mr. Gene was very satisfied with the
quality of work performed by the plaintiff until after the car accident.

[268]     On the day
after the accident, he attended to the company premises due to an alarm report
and found the plaintiff’s children doing the cleaning work. He was concerned
with the plaintiff using his children to do the cleaning work and in October terminated
the contract.

[269]     The
plaintiff contends that his average annual income for 2009 and 2010 with
Shirley Williams was $12,500 gross. His monthly income from SBD was $925 and his
monthly income from Star Auto Body was $175 per month.

[270]     The
plaintiff did not provide any evidence concerning the costs of operating his
janitorial business. The plaintiff’s wife said that expenses were in the order
of $40 per month but she provided no details confirming that amount. The
plaintiff’s economist, Christiane Clark, estimated his net income considering
three scenarios where the costs of doing business ranged from 25% to 75% of
total income.

[271]     It is
clear that Mrs. Koltai performed a significant part of the labouring
duties that resulted in the income from the janitorial business. It must be
remembered that the assessment of past income loss is an assessment of the loss
of the plaintiff’s capacity to earn income which in this case must be discounted
by the amount that Mrs. Koltai’s labour contributed to the gross income of
the enterprise. I accept the plaintiff’s evidence that his wife performed a
substantial measure of the work and I reject her assertion that she simply went
with him to worksites in order to enjoy his company. Nevertheless, I conclude
that but for the accident the plaintiff would have continued to work for his
janitorial clients and the income earned would have been reflective of both his
labour and her labour.

[272]     The
plaintiff contends that the actual loss of annual income from the janitorial
business would, after the deduction for expenses, be $9,900 (considering
expenses at 25%). From the date of the accident forward, the plaintiff’s
business was at an end because he was unable to perform the work. I accept that
amount as an accurate measure of the business losses suffered. Based on the
plaintiff’s evidence, I estimate that his wife’s contribution to the income was
one third of the total amount. Thus, I will award compensation for his lost
income from Star Autobody and SBD at amount equal to $6,600 per year in
addition to $12,500 from his watchman’s position with Shirley Williams.

[273]     Thus, I am
satisfied that on an annualized basis, the loss of the plaintiff’s ability to
earn income, but for the accident, would have been $12,500 as a watchman and $6,600
from his janitorial work, totalling $68,000 to December 2014.

Impaired Earning Capacity/Future Income Loss

[274]     Future income
losses or losses from impaired earning capacity should be addressed insofar as
possible to restore the plaintiff to the position he would have been in if not
for the injuries caused by the defendant’s negligence: Lines v. Gordon, 2009
BCCA 106 at para. 185; Falati v. Smith, 2010 BCSC 465 at para. 38.

[275]     Claims for
”past loss of income” may be characterized as separate heads of damages, but
are more properly characterized as a component of loss of earning capacity. It
is a claim for the loss of value of the work an injured plaintiff would have
performed but was unable to perform because of the injury: Rowe v. Bobell
Express Ltd., 2005 BCCA 141 at para. 30; Bradley v. Bath, 2010
BCCA 10 at paras. 31-32; and Falati at para. 39.

[276]    
The Court of Appeal has concluded that plaintiffs must prove that there
has been an impairment in earning capacity and that there is a real and
substantial possibility the diminution in earning capacity will result in a
pecuniary loss. If the plaintiff discharges this requirement, he or she may
prove the quantification of the loss of future earning capacity either on an
“earnings approach” or a “capital asset” approach: Perren v. Lalari, 2010
BCCA 140 at para. 32. In making an assessment under this head of damages,
the court must endeavour to quantify the financial harm to the plaintiff over
the course of his or her working career: Pett v. Pett, 2009 BCCA 232 at para. 19.

[277]    
Ker J. in Mackenzie v. Rogalsky, 2011 BCSC 54 provided a helpful
summary of the issue of proof for an impaired earning capacity claim:

[279]    In Bedwell v. McGill,
2008 BCCA 6 (CanLII), at para. 53, the Court of Appeal clarified the issue
of proof, holding it is necessary for a plaintiff to prove a substantial
possibility of a future event leading to an income loss. The plaintiff is not
required to prove this loss on a balance of probabilities (see also Steward
v. Berezan, 2007 BCCA 150 (CanLII), at para. 17). However, there needs
to be some “cogent evidence” to trigger the Brown considerations: Marcelino
v. Francesutti, 2002 BCSC 1711 (CanLII), at para. 57; Carvalho v.
Angotti, 2007 BCSC 1760 (CanLII), at para. 59. In Moore v. Cabral
et al.,2006 BCSC 920 (CanLII), at para. 78, Madam Justice MacKenzie
(as she then was) stated that “ongoing symptoms alone do not mandate an award
for loss of future earning capacity.”

[278]     In Rosvold
v. Dunlop, 2001 BCCA 1, the Court of Appeal described the task of quantifying
a loss of earning capacity; the court is to conduct an assessment, based on all
of  the evidence, rather than applying a purely mathematical calculation: at para. 11.

[279]     Income
earning capacity is viewed as a capital asset where all relevant negative and
positive contingencies must be considered: Kuskis v. Hon Tin, 2008 BCSC
862 at para. 153. In addition, the overall fairness and reasonableness of
the award must also be taken into account: Rosvold at para. 11.

[280]    
Ms. Christiane Clark, the economist provided net present value
calculations to address the plaintiff’s claim for the future income loss or
impairment of his income earning ability resulting from his accident related
injuries. In her assumptions, she anticipated that the plaintiff is currently
unemployable and will remain unemployable for the balance of his life. She
assumed that if the accident had not happened, his income as a night watchman
would have continued until his retirement to date (age 67) at the average
amount he earned in 2009 – 2010 which was $12,500. She also assumed that he
would have continued his janitorial business and continued to earn $975 per
month from SBD and $175 per month from his Star Auto Body contract.

[281]     She also
assumed that his expenses would have ranged between 25% and 75% of his gross
income. As noted above, it is reasonable to contribute 25% of the gross income to
expenses in the absence of better evidence than was mentioned by Mrs. Koltai. Taking
into account those three variables, she estimated that his loss of income to
age 67 would be between $313,978 and $445,133.

[282]     Ms. Clark
suggested that the estimates of the plaintiff’s future income losses could be
reduced further due to negative labour market contingencies not already
included in her estimates. She understood that he would work to age 67 in a full
time position and, if that was the case, then the amount needed to be reduced
only for “risk” contingencies. She opined that the present value of his
earnings adjusted for unemployment risks only would reduce his estimated loss
to between $266,881 and $378,363. If the loss was adjusted for unemployment
risks and personal choices, the loss falls to between $204,085 and $289,336.

[283]     The
defendant contends that the data relied upon by Ms. Clark is not an
accurate representation of the plaintiff’s actual “earning capacity”. The
plaintiff was not doing all of the physical work required to earn this income;
his wife was doing a significant part of the physical labour and the loss of
capacity must be measured after excluding her income. Furthermore, since Ms. Koltai
was performing administrative duties for the plaintiff’s business, apportioning
the notional income from her labour significantly reduces the amount the
plaintiff has lost due to his injuries.

[284]     Finally,
the defendant argues that the plaintiff deliberately misrepresented his
capabilities when attending the vocational assessment with Megan Stacey. He did
not take his medications nor did he use his back brace and, in the result, it
is not possible to assess his residual capacity loss because he did not make
reasonable efforts in the testing process.

[285]     The
plaintiff testified that he had hoped to increase the number of clients for his
janitorial business. He did not give any evidence concerning how this might
happen, what he had done in the past to date to attract new customers, or how
what changes might be necessary to accommodate new business. His income history
did not reflect any realistic possibility of success in that plan.

[286]     The
defendant relies on Moore v. Cabral, 2006 BCSC 920 for the proposition
that ongoing symptoms alone do not justify an award for loss of earning
capacity. Measuring the economic value of a person’s impaired capacity engages
a consideration of factors such as whether the plaintiff has been rendered less
capable overall of earning income from all types of employment; is less
marketable or attractive as a potential employee; has lost the ability to take
advantage of all job opportunities that might otherwise have been open; and is
less valuable to herself as a person capable of earning income in a competitive
labour: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.). There
must be cogent evidence to trigger an award under the Brown v. Golaiy
criteria.

[287]     In
addition to the other findings of fact in these reasons, I make the following
findings that influence the total amount to be awarded the plaintiff in regard
to the impairment of his ability to earn income. These are:

(a)      I
do not accept the entirety of plaintiff’s evidence concerning his inability to
function. I conclude that the opinions of the doctors and Ms. Stacey
reflect an excessively pessimistic presentation by the plaintiff;

(b)      there
is persuasive evidence that if the plaintiff pursues recommended courses of
treatment he may achieve some recovery of function including the treatment
offered by Dr. Mutat involving epidural injections in February 2012 and
the medications recommended to address the psychiatric aspects of his ongoing
condition. Thus, he may yet increase his capacity to work with a corresponding
increase in income;

(c)      the
ringing in his ears which seems to be a significant feature of his ongoing
symptoms is not caused by the accident;

(d)      because
of the duration of his pain symptoms he is not expected to fully recover to his
pre-accident function;

(e)      there
was insufficient evidence to persuade me that the plaintiff had an ability or
interest in expanding his business. His history of earnings prior to the date
of the accident are an indication that he had a limited ability or interest in
expanding his business.

[288]     I am
satisfied that the plaintiff’s current impairment caused by his chronic pain,
his headaches and shortcomings in his cognitive abilities and memory is
continuing. It is difficult to estimate how long the plaintiff will be unable
to perform some, most or all of his former business activities or the extent to
which these have been hampered by his tinnitus. I have taken into account that
the plaintiff’s tinnitus and vision loss are not caused or contributed to by
the accident. Nonetheless, I have taken into account the contingencies
described in Ms. Clark’s report. The plaintiff testified that he would
like to work until retirement and planned to expand his business. However, comparing
the plaintiff’s economic prospects before the accident to those extant after
the accident I cannot conclude on the balance of probabilities that there was a
real or substantial possibility of Mr. Koltai working to age 67 or the
business improving significantly.

[289]     I am satisfied
it is more likely than not that the plaintiff will return to some form of work.

[290]     There is
no way to mathematically calculate the length of time necessary for him to
achieve the level of function necessary to work at his former business. I am
satisfied that he is currently more able than he presented at trial but that it
will likely be years before he is able to overcome the most debilitating
effects of his symptoms.

[291]     Taking
account the economist’s evidence, the medical evidence and the plaintiff’s
evidence, I consider that a fair and reasonable estimation of the plaintiff’s
impaired earning capacity resulting from the symptoms caused by this accident
is $125,000.

Cost of Future Care

[292]     The
plaintiff’s claim under this head of damages is supported by the opinion of
Megan Stacey, Dr. Watson, Dr. Anderson and Dr. Schmidt. Ms. Stacey
provided a list of services, equipment and supplies she recommended to increase
his level of his pre-accident independence. These include:

(a)      Six
to ten sessions of prolotherapy with Dr. Watson at a cost of $900-$1500;

(b)      20 sessions of
psychotherapy with a registered psychologist at $3,700;

(c)      ongoing
counselling sessions between one and two times per month at on a one time basis
$2,200 – $4,810;

(d)      a one-time
expense for a multidisciplinary pain management program at $13,600;

(e)      supervised exercise
program at a physiotherapy clinic at $550 – $915;

(f)       71 kinesiology
sessions at between $3,550 and $5,325;

(g)      occupational therapy
services in the range of $5,220 – $7,150;

(h)      occupational
therapist to facilitate engagement in services at a cost of $4,125 -$6,000 and
if the plaintiff succeeds in his pain management program, a vocational
consultant at a cost of $2,000 -$3,000;

(i)       due
to his decreased functional tolerances for homemaking tasks, two hours of
assistance per week that would enable Ms. Koltai to spend more time on
tasks which she has taken over from her husband. The annual cost for those
services would be $2,860 – $4,420;

(j)       if
the plaintiff achieves partial recovery then his household assistance might be
reduced to every second week at a cost of $1,430 – $2,210;

(l)       home
yard maintenance based on the fact that the plaintiff was solely responsible
for maintaining their home including painting, pressure washing, roof and
gutter cleaning and other necessary chores. She estimates 120 hours of
assistance per year at a cost of $47 per hour, which would necessitate a $5,640
annual expense.

[293]     Ms. Stacey
assessed the plaintiff’s equipment needs as follows:

(a)      compression
braces for his torso and leg at $360 with replacements every two to four years;

(b)      grab bars at $307 with
replacements if the plaintiff relocates;

(c)      toilet safety frame at
$148 replacement needed every 12 to 15 years;

(d)      Long
handled nail clippers at $17.95 with replacements every 7 to 10 years.

[294]     The
plaintiff’s claim for ongoing prescription medications includes:

(a)      Cesamet
prescribed at two tablets at bedtime with an annual cost of $1,504. I note this
is double the prescribed amount;

(b)      Gabapentin
is prescribed at three tablets, three times per day. The annual cost of this
medication is $1,084;

(c)      Tylenol
3s at one tablet every other day for an annual cost of $65.75.

[295]     Ms. Clark
provided net present value calculations for the plaintiff’s future care costs
as estimated by Ms. Stacey. The low end estimates for those costs are
$304,627 while the high end is $395,898.

[296]    
The plaintiff argues that he has significant care needs that are
outlined in the medical opinions and testimony of all experts. He acknowledges that
this award must be based on medical evidence of what is reasonably necessary to
preserve and promote the plaintiff’s mental and physical health. He relies on the
principles governing future care awards as set out in Langille v. Nguyen, 2013
BCSC 1460;

[231]    The plaintiff is entitled to compensation for the
cost of future care based on what is reasonably necessary to restore her to her
pre-accident condition, insofar as that is possible. When full restoration
cannot be achieved, the court must strive to assure full compensation through
the provision of adequate future care. The award is to be based on what is reasonably
necessary on the medical evidence to preserve and promote the plaintiff’s
mental and physical health: Milina v. Bartsch (1985), 1985 CanLII 179
(BC SC), 49 B.C.L.R. (2d) 33 (S.C.); Williams v. Low, 2000 BCSC 345
(CanLII); Spehar et al. v. Beazley et al., 2002 BCSC 1104 (CanLII).

[232]    The test for determining the appropriate award under
the heading of cost of future care is an objective one based on medical
evidence. For an award of future care: (1) there must be a medical
justification for claims for cost of future care; and (2) the claims must be
reasonable: Milina v. Bartschat 84.

[233]    Future care costs must be justified both because
they are medically necessary and are likely to be incurred by the plaintiff.
The award of damages is thus a matter of prediction as to what will happen in
future. If a plaintiff has not used a particular item or service in the past,
it may be inappropriate to include its cost in a future care award: Izony v.
Weidlich, 2006 BCSC 1315 (CanLII) at para. 74.

[234]    The extent, if any, to which a future care costs
award should be adjusted for contingencies depends on the specific care needs
of the plaintiff. In some cases, negative contingencies are offset by positive
contingencies and a contingency adjustment is not required. In other cases,
however, the award is reduced based on the prospect of improvement in the
plaintiff’s condition or increased based on the prospect that additional care
will be required: Tsalamandrisat paras. 64-72. Each case falls to
be determined on its particular facts:Gilbert at para. 253.

[235]    An assessment of damages
for cost of future care is not a precise accounting exercise: Krangle
(Guardian ad litem of) v. Brisco, 2002 SCC 9 (CanLII) at para. 21.

[297]    
The defendant contends that future care awards are meant to compensate
the plaintiff for financial costs reasonably anticipated by the plaintiff to
sustain or promote mental or physical health: Fontaine v. Van Kampen,
2013 BCSC 1702.

[298]    
The defendant contends that the facts and assumptions relied upon by Ms. Stacey
should be rejected because they result from the plaintiff’s unreliable self-reporting
of symptoms. The defendant argues that the plaintiff deliberately under
performed during Mrs. Stacey’s examination because he did not take his
medications. Thus it is cannot be known what were the plaintiff’s true physical
capabilities. Those factors combined with his apparent physical capacity to
walk and carry objects exceeding his self-reported limitations undermines the
reliability of her report. Consequently her report ought to be given reduced
weight. Cojocaru v. British Columbia Women’s Hospital and Health Center, 2013
SCC 30.

[299]     The
defendant also argued that Dr. Chitsaz does not recommend the plaintiff
continue using Tylenol 3 or Xanax. The defendant contends that Ms. Stacey
is in error where she estimates future care costs that include allowances for
Tylenol 3 which has been discontinued. Further, the prescribed dosage of
Cesamet is 2 mg per day whereas the plaintiff takes 4 mg and Ms. Stacey
has allowed for a valuation of 4 mg per day. Thus, the medical necessity of
some of the recommendations has not been proven.

[300]     Because of
flaws in the plaintiff’s self-report and lack of reliability in his evidence, I
accept that Ms. Stacey’s report should be given less weight because it
does not reflect his true needs arising from the injuries sustained in the
accident. This conclusion is driven in part by the shortcomings in the
plaintiff’s evidence and my findings on credibility.

[301]     It is
difficult to fairly assess the plaintiff’s needs in light of my concerns
regarding his credibility. It may be that his credibility challenges derive from
his irrational fear concerning pain and a desire to achieve maximum financial
recovery in this proceeding.

[302]     As
indicated, I conclude that the plaintiff’s physical disabilities are not all
related to the accident injuries or are as pronounced as he suggests and
reflected in Ms. Stacey’s opinion.

[303]     Further,
in my view it is more likely that a multidisciplinary pain management program,
supervised exercise program, occupational therapist involvement and vocational
assessment and counselling will result in significant progress in the
plaintiff’s recovery from the injuries suffered in this accident.

[304]     Mr. Koltai
did not have a successful experience with prolotherapy and it seems to me it
would not be helpful at this stage.

[305]     I am
satisfied psychological counselling with a cost of $3,600 is appropriate. I am
also satisfied that a multidisciplinary pain management program should be
provided at a cost of $13,000. I accept that an exercise program valued at $4,500
is appropriate. I will award the plaintiff $10,000 to obtain occupational
therapy, rehabilitation therapy, and any vocational assessment that may be
considered.

[306]     I have
considered the plaintiff’s claim for homemaking services and home yard maintenance
and I am satisfied that an amount should be awarded for assistance, but the
suggested amount for those services is beyond reason. I do not accept that this
will be a permanent need or requirement because of the accident related
injuries. I have concluded that the plaintiff is more likely than not able to
perform some of the functions that Ms. Stacey said should be provided for
him. This is an assessment of what must be reasonable and I am not able to
mathematically determine the amount with any precision. On the evidence
including the possibility that he will recover function, I consider an award of
$20,000 for homemaking assistance to be fair and reasonable. Likewise, the
plaintiff’s claim for yard and home maintenance is excessive. I am prepared to
allow the plaintiff $25,000 for those costs.

[307]     The
plaintiff claims equipment including compression braces, grab bars, a toilet
safety frame and long-handled nail clippers. In total, I award the plaintiff $2,500.

[308]     Lastly, in
regard to prescription medications, the plaintiff seeks compensation for
Cesamet, Gabapentin and Tylenol 3. These amounts represent annual costs until
the plaintiff is 86 years old. While recognizing that the plaintiff struggles
with pain control and may require ongoing assistance in this regard, I do not
accept those estimates as reasonably reflecting his needs. I do not allow any
amount for Tylenol 3 but will award the plaintiff $12,000 for the Cesamet and
Gabapentin.

Special Damages

[309]     The
plaintiff claims $9,840.70 in special damages. The defendant contends that any
allowance for special damages should be limited until November 8, 2011 at which
time the plaintiff was examined by Dr. Heron. As I have previously stated,
though his consultation reports were referred to, there was no evidence from Dr. Heron
presented at trial. I do not accept that there is or should be such a
limitation as suggested by the defendant.

[310]     The
defendant did not object to any of the charges or the appropriateness of the
special damages claimed except as to duration.

[311]     There was
a paucity of evidence concerning the special damages claim by the plaintiff. I
note that under travel expenses there are names of doctors and clinics that
were not referred to in evidence but no argument was advanced on that point.
Thus, I am prepared to allow the plaintiff’s travel expenses of $803.70.

[312]     Similarly,
evidence was given regarding substantial prescription medicines purchased and
consumed by the plaintiff. There was no argument regarding those amounts except
as to duration. I do not know when Dr. Heron opined on the plaintiff’s
condition or recovery and I cannot make any assessment. No argument was
advanced and I allow $6,056.20 for compensation for the plaintiff’s
prescription medicines.

[313]     The
plaintiff claims $2,695 for an MRI and an expense with Fraser Creek Health
Center. I have no evidence concerning these procedures or the reasonableness of
the amounts claimed, nor was there any argument concerning those amounts; I
decline to award them. Similarly, there was no argument concerning the user
fees for chiropractic services, transportation and parking expenses, and new
eyeglasses. I am not satisfied that the plaintiff’s claim for eyeglasses is a
proper special damages claim nor the costs of “Mr. Rubbish” services Thus,
in regard to miscellaneous receipts the plaintiff is awarded $103. The amount
awarded for special damages will be reduced by $595.02, being the amount paid
by ICBC to date. I note that in the plaintiff’s breakdown there is a prescription/subro
user fee and prescription/subro amount due. I have no information regarding
what that claim represents. If there is no agreement between the parties on
this amount, they will have liberty to appear and address the claim.

Conclusion

[314]     In the
result, I award the plaintiff :

a.     non-pecuniary
damages                                            $85,000

b.     past
income loss                                                       $68,000

c.     future
loss of income /impaired earning capacity         $125,000

d.     future
care costs                                                       $90,600

e.     special
damages                                                       $6,962.98

[315]     The
parties have liberty to make submissions as to costs within 30 days, failing
which the plaintiff will have costs at Scale B.

“The Honourable Mr. Justice Armstrong”