IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150825

Docket: M114738

Registry:
Vancouver

Between:

Rizwan Ali

Plaintiff

And

Shirley Esther Fineblit

Defendant

Before:
The Honourable Madam Justice Gerow

Reasons for Judgment

Introduction

[1]            
Rizwan Ali claims for damages he alleges he sustained in a motor vehicle
accident on October 3, 2009, at the intersection of West 7^th Avenue
and Pine Street, Vancouver, B.C. Mr. Ali was stopped at the intersection
when the defendant, Shirley Fineblit attempted to pass him on the left side. As
Ms. Fineblit was attempting pass Mr. Ali, he turned left and her
vehicle came into contact with his motorcycle. Both liability and quantum are at
issue.

[2]            
Mr. Ali claims that as a result of the accident, he sustained injuries
to his left leg, neck and back. He says he is permanently partially disabled as
a result of the injuries he sustained in the accident. Mr. Ali says that
he suffers from ongoing pain in his left knee and back, as well as increased
headaches, disturbed sleep and anxiety. Mr. Ali is claiming damages for
pain and suffering, loss of past and future income earning capacity, and cost
of future care. He is also claiming special damages.

Issues

[3]            
The issues are:

1.     Is Ms. Fineblit
responsible for the accident and, if so, is Mr. Ali contributorily
negligent?

2.     What injuries
did Mr. Ali suffer in the accident?

3.     What is
the appropriate award of general damages for pain and suffering?

4.     What
amount, if any, should be awarded for past loss of income earning capacity?

5.     What
amount, if any, should be awarded for loss of future income earning capacity?

6.     What
amount, if any, should be awarded for the cost of future care?

7.     What
amount, if any, should be awarded for special damages?

Background

[4]            
Mr. Ali is 40 years old, and living with his wife and two young
sons on Bowen Island. Mr. Ali was 35 years old at the time of the accident
and was working as a software architect. Mr. Ali’s job entailed commuting
to various clients’ workplaces, mostly in the United States, to work onsite on
a weekly basis.

[5]            
At the time of the accident, Mr. Ali was riding his motorcycle. He
had just been on a motorcycle trip across Canada, and had returned to Vancouver
by plane and had the motorcycle shipped back. Mr. Ali had just picked up
the motorcycle from the shipper and was returning to his residence at the time
the accident occurred.

[6]            
Mr. Ali’s evidence is that he was travelling along West 7^th
Avenue between 30 kph and 40 kph as it is a residential street. According to Mr. Ali,
he slowed as he approached Pine Street and turned on his left turn signal. He
also checked his mirrors. He stopped and ensured the car behind him had
stopped, and then started to make his turn when he was hit by the car that had
been stopped behind him trying to pass him on the left.

[7]            
Mr. Ali’s evidence is that he struggled to keep his motorcycle up
and made it across the intersection where he stopped, parked his motorcycle and
got off. His evidence is that the car hit his left knee and then swiped the
front fork and turn signal of his motorcycle. Mr. Ali says he was stunned
at what had happened and was angry and upset with the other motorist for
passing him on the left when he was signalling that he was going to turn. After
he got off the motorcycle, Mr. Ali exchanged information with Ms. Fineblit.
After Ms. Fineblit left, Mr. Ali sat on the curb for a while, and
then drove his motorcycle home. When he got home he went to bed.

[8]            
Ms. Fineblit testified that she had been grocery shopping prior to
the accident. She too was returning home when the accident occurred. Ms. Fineblit
was following Mr. Ali on West 7^th Avenue. According to Ms. Fineblit,
Mr. Ali was driving very slowly, at what she described as a walking pace. Ms. Fineblit’s
evidence is that she thought Mr. Ali was turning right and so she passed
him on the left. She heard a tap on the left hand passenger door and stopped
and saw Mr. Ali beside her. Mr. Ali turned to the left and got off
his motorcycle and started shrieking at her. Ms. Fineblit did not think
there was damage to either party and there was no indication that Mr. Ali
was injured. Ms. Fineblit’s evidence is that she thought the edge of the
left handlebar just caught her car. Ms. Fineblit testified that after the
accident she went over to the motorcycle and fixed the front left hand turn
indicator. At the time, the left turn indicator was blinking.

[9]            
Neither party called the police or an ambulance. The first medical
treatment Mr. Ali sought was on October 9, 2009, six days after the
accident when he went to see his family doctor.

[10]        
Mr. Ali says his symptoms from the injuries he sustained in the
accident, particularly the left knee injury, are ongoing and have impacted all
areas of his life.

Who is at Fault for the Accident?

[11]        
As set out earlier, Mr. Ali’s motorcycle struck Ms. Fineblit’s
vehicle when he was turning left. Mr. Ali did not see Ms. Fineblit until
the collision. There is a dispute as to whether Mr. Ali signalled that he
was making a left hand turn, and whether Ms. Fineblit acted reasonably in
passing him on the left when he was stopped. For the following reasons, I find Ms. Fineblit
100% liable for the accident.

Plaintiff’s Position

[12]        
Mr. Ali submits that the evidence indicates the accident was the
result of Ms. Fineblit’s frustration and annoyance at a delay in her
travel and her decision to proceed in an unsafe manner by passing on the left
in an intersection when her evidence is that she could not ascertain what he
was going to do. Both Ms. Fineblit and Mr. Ali testified that when
she passed him he was in the centre of the intersection.

[13]        
Ms. Fineblit took an ill-advised risk, hoping she could pass Mr. Ali
and that he would not turn left. The law is clear that the servient driver,
i.e. Ms. Fineblit, had to wait or sound her horn before proceeding to pass
him.

Defendant’s Position

[14]        
Ms. Fineblit takes the position that Mr. Ali was taking his
motorcycle on a road test when the accident occurred, and was not paying
attention to his surroundings and the other vehicles on the road. Ms. Fineblit
was entitled to rely on the fact that Mr. Ali had put his right hand
signal on, and pass Mr. Ali on the left.

[15]        
Ms. Fineblit was not confused as she approached the intersection.
Rather her evidence is that Mr. Ali was unpredictable. Ms. Fineblit
attempted to ascertain what Mr. Ali was doing as he approached the
intersection. Ms. Fineblit was not acting hastily, but rather, cautiously.
She stopped behind Mr. Ali and assessed the situation. She formed the
opinion that Mr. Ali was turning right because she saw a right hand
signal. Ms. Fineblit’s evidence that she saw the right hand turn signal
should be accepted.

[16]        
There is nothing in the evidence to establish when Mr. Ali turned
on his left hand signal. Mr. Ali has suggested that because the left hand
signal was activated after the accident, is should be inferred it was activated
before the accident. Mr. Ali likely changed his mind and activated his
left hand turn signal while turning which contravenes ss. 169 and 170 of
the Motor Vehicle Act.

[17]        
Ms. Fineblit asserts that motorcycles are less visible than cars
and that explains why she did not see the left signal. Ms. Fineblit
submits that Mr. Ali failed in his duty to her by knowingly operating a
vehicle that is less visible; driving slower than was reasonable; signalling
right before the intersection and then turning left; failing to give a clear
indication of his intention to turn left; not using hand signals; stopping at
the intersection; and not moving to the left sufficiently to indicate his turn.

[18]        
Ms. Fineblit’s position is that Mr. Ali’s evidence that he checked
his mirror, saw her stopped behind him and performed a shoulder check and
checked his mirrors before he commenced his turn is not credible.

Applicable Law

[19]        
The following provisions from the Motor Vehicle Act,
R.S.B.C.1996, c. 318, have application:

145 (1) A person must not
drive a motor vehicle at so slow a speed as to impede or block the normal and
reasonable movement of traffic, except when reduced speed is necessary for safe
operation or in compliance with law.

150 (1) The driver
of a vehicle must confine the course of the vehicle to the right hand half of
the roadway if the roadway is of sufficient width and it is practicable to do
so, except

(a) when overtaking and passing a
vehicle proceeding in the same direction,

(2) The driver of a vehicle proceeding
at less than normal speed of traffic at the time and place and under existing
conditions must drive the vehicle in the right hand lane available for traffic,
or as closely as practicable to the right hand curb or edge of the roadway,
except when

(a) overtaking and passing another
vehicle,

(b) preparing for a left hand turn at
an intersection

157 (1) Except as provided in
section 158, the driver of a vehicle overtaking another vehicle

(a) must cause the vehicle to pass to
the left of the other vehicle at a safe distance, and

(b) must not cause or permit the
vehicle to return to the right side of the highway until safely clear of the
overtaken vehicle.

(2) Except when overtaking and passing
on the right is permitted, a driver of an overtaken vehicle,

(a) on hearing an audible signal given
by the driver of the overtaking vehicle, must cause the vehicle to give way to
the right in favour of the overtaking vehicle, and

(b) must not increase the speed of the
vehicle until completely passed by the overtaking vehicle.

159 A driver of a vehicle must not drive to the left side of
the roadway in overtaking and passing another vehicle unless the driver can do
so in safety.

160 A
driver of a vehicle must not drive to or on the left side of the roadway, other
than on a one way highway, unless the driver has a clear view of the roadway
for a safe distance, having regard for all the circumstances.

[20]        
Drivers are entitled to expect other drivers to obey
the rules of the road. They are not required to anticipate another driver’s
negligent manoeuver. As noted in Carvalho v. Angotti, 2007, BCSC 1760,
at para. 23:

[23] …The principle in Walker v. Harmon,
[1952] 2 D.L.R. 450 at 461 (S.C.C.), has been cited in countless cases,
including Keen v. Stene, 44 D.L.R. (2d) 350 at 367 (B.C.C.A.):

If he seeks to case any portion of the
blame upon B, the driver with the right of way, A must establish that after B
became aware, or by the exercise of reasonable care should have become aware,
of A’s disregard of the law, B had in fact a sufficient opportunity to avoid
the accident of which a reasonably careful and skillful driver would have
availed himself; and I do not think that in such circumstances any doubts
should be resolved in favour of A, whose unlawful conduct was fons it origo
mali;

[21]        
When a driver is going to pass another vehicle they must be reasonably
certain it is safe to do so. If there is uncertainty, the obligation of the
passing motorist is to wait to until it is reasonably safe to do so: Eccleston
v. Dresen, 2009 BCSC 332, at para. 43.

Application of the Law to the Facts

[22]        
In my opinion, Ms. Fineblit’s evidence that she was unable to
ascertain what the motorcycle in front of her was going to do meant prior to
passing it she should have sounded her horn to let Mr. Ali know she was
passing or wait until she was able to ascertain what he was going to do.

[23]        
The weather at the time of the accident was clear and sunny. There was
normal daylight visibility. Ms. Fineblit became aware of the motorcycle
sometime before the intersection of Pine Street. Her evidence is that she did
not see the motorcycle go to the right hand side of the roadway. Ms. Fineblit’s
evidence at her examination for discovery was contrary to her evidence at
trial. At trial Ms. Fineblit stated that the motorcycle was in the centre
of her portion of the roadway, but at her examination for discovery she stated
the following:

Q203: And his motorcycle was positioned in the middle of the
roadway?

A. Pretty much. Pretty close to
the centre of the road as I recall.

[24]        
As stated earlier, Ms. Fineblit agreed that the motorcycle’s left
hand signal was on after the accident. Ms. Fineblit’s evidence is that she
did not see any lights in the rear of the motorcycle prior to the accident, but
saw the signal light on the right front handlebar prior to the accident. Her
evidence is that on the basis of seeing the right front signal on the
motorcycle, she decided it was safe to go around the motorcycle on the left.

[25]        
I do not accept Ms. Fineblit’s evidence that she observed the right
front signal light but not the brake light or the left rear signal light on the
motorcycle prior to the accident.

[26]        
Robin Brown, an engineer with expertise in the areas of metallurgy and motor
vehicle accident reconstruction, provided a report and testified at trial. In Mr. Brown’s
evidence and report he notes that the front signal lights on the 2002 Honda 919
motorcycle Mr. Ali was driving are also running lights that illuminate
with the headlights when the ignition is turned on and face forwards.

[27]        
In my view, it is reasonable to infer that Ms. Fineblit could not
have seen any forward facing lights on the motorcycle. As noted earlier, Ms. Fineblit’s
evidence is that she did not observe the rear brake light or rear signal
lights.

[28]        
It is clear from Ms. Fineblit’s evidence that she was impatient
with Mr. Ali’s driving because she thought he was driving too slowly. Ms. Fineblit
agrees she stopped behind Mr. Ali when he stopped and put his foot down in
the intersection. Although Ms. Fineblit attempted to resile at trial from
her earlier evidence that he was pretty close to the centre of the road, it is
clear she was uncertain as to what he was doing, and whether he was going to
turn right.

[29]        
I accept Mr. Ali’s evidence that he had put his left hand turn
signal on as he approached the intersection, stopped, and checked his mirrors and
saw Ms. Fineblit stopped behind him prior to starting his left hand turn.
That evidence is consistent with Ms. Fineblit’s evidence on her
examination for discovery that Mr. Ali was close to the centre of the road
and the fact that his left signal light was blinking after the accident. It is
also consistent with Ms. Fineblit’s evidence that Mr. Ali stopped in
the intersection and she stopped behind him.

[30]        
Although Ms. Fineblit argues that there is a higher duty on a
motorcycle to ensure their intention to run, stop or change lanes is clear as a
result of the lower visibility, she provided no authority for that proposition.

[31]        
Both parties have provided a number of cases. However, each case is
determined on its facts. For example in Pipe v. Dusome, 2007 BCSC 1066,
one of the cases provided by Ms. Fineblit, the defendant was turning into
a driveway, did not stop prior to making his turn, the left rear signal light
of the vehicle was not working, and he did not check his mirrors before
starting his turn. In the circumstances, it was found the defendant was 80%
liable for not ensuring he could complete his turn safely before turning into
the driveway. The plaintiff was found 20% at fault for failing to ensure he
could pass safely because he was unsure as to what the defendant was doing and
assumed he was going to turn right because of the fact he had slowed.

[32]        
Even if I accepted Ms. Fineblit’s evidence it is clear that she was
uncertain as to what Mr. Ali was doing at the time he stopped in the
intersection. At trial, Ms. Fineblit conceded that as Mr. Ali was close to the centre of West 7^th Avenue he could have
proceeded straight, turned left or turned right. In the circumstances, I
am of the view she should have either waited to determine whether he was in
fact turning right or sounded her horn prior to attempting to pass him. It was
clear to Ms. Fineblit that Mr. Ali was stopped in the centre of the
intersection, close to the middle of the road. This is not the same as the Pipe
case where the defendant was turning left into a driveway without coming to a
stop, and without signalling his intention to turn left.

[33]        
However, as stated earlier, I accept Mr. Ali’s evidence that he put
his left hand turn indicator on, and checked and saw that Ms. Fineblit had
stopped behind him before commencing his turn. I find that Mr. Ali did
take steps to ensure he could safely turn left. He put on his left hand turn
signal, came to a stop near the centre of the intersection, and saw that Ms. Fineblit
had stopped her vehicle behind his before he commenced his turn.

[34]        
Having considered the evidence, submissions and the case law provided, I
find that Ms. Fineblit failed to ensure she could pass in safety before
attempting to pass Mr. Ali and should be held 100% at fault for the
accident.

What are the Nature, Extent and Duration of the Injuries Caused by the
Accident?

Plaintiff’s position

[35]        
Prior to the accident, with the exception of the
occasional headache, Mr. Ali was asymptomatic, very active and fully
functional. As a result of the accident, Mr. Ali has had to visit Dr. Robert
Menzies, his family physician, to treat his accident-related injuries.

[36]        
Six days after the accident, on October 9, 2009,
Mr. Ali saw Dr. Menzies and complained of pain in his left knee, back
and left big toe. His left knee was tender and swollen. Dr. Menzies’
diagnosis was a medial collateral strain in the left knee, a back strain, and a
bruised toe.

[37]        
Drs. Fuller, Stewart, and Menzies are all of the
opinion that Mr. Ali’s injuries and ongoing pain in his left knee and low
back occurred as a result of the collision.

[38]        
The pain in Mr. Ali’s left knee increases
in colder and damp weather and wakes him up at night. When his left knee is
stationary or he uses it too much, the pain increases. More recently, his lower
back pain has radiated into his right hip.

[39]        
Mr. Ali submits that as long as there is a substantial connection
between the harm that he has suffered and Ms. Fineblit’s negligence, she
is liable. This accident involved a car colliding with an exposed left knee. Mr. Ali
did not have the benefit of being inside of a car when the collision occurred,
which would have given him some protection. There were no intervening events or
pre-existing conditions to which the injuries and damages can be attributed.

[40]        
Ms. Fineblit’s expert Dr. Masri testified that Mr. Ali’s
left knee was fine before the accident, that he sustained an injury to the knee
in the collision, and that his knee has not been normal since the accident.

[41]        
There was no evidence that Mr. Ali had back issues prior to the
2009 accident. Dr. Robinson, a neurologist with expertise in headaches, is
of the opinion that Mr. Ali’s increased headaches are due to the accident.
Prior to the accident his headaches were not a major problem as they are now.

[42]        
Mr. Ali submits there is a clear temporal relationship between the
occurrence of the accident and the onset of all of his symptoms. With respect
to Ms. Fineblit’s argument that his weight is the cause of his ongoing
problems, the tortfeasor must take the plaintiff as she finds him. Mr. Ali
submits that weight loss with a knee injury which prevents his ability to enjoy
his formerly vigorous lifestyle, is a herculean task. Mr. Ali says had he
been able to continue with his regular athletic pursuits and daily recreational
activities, he would not have gained weight. Dr. Masri agreed that a
reduction in regular activity could cause weight gain, that being overweight
required a treatment regimen, and that there were psychological and lifestyle
factors that contributed to being overweight or obese.

[43]        
Mr. Ali says that there is no intervening event or pre-existing
condition which contributed to his injuries. Absent the accident, he would not
be in his current position.

Defendant’s Position

[44]        
Ms. Fineblit submits that Mr. Ali
medical history prior to the accident is relevant, including:

1.    
Pre-existing headache and migraines associated
with stress and airplane travel;

2.    
Being overweight with high cholesterol in the
months preceding the accident;

3.    
A shoulder and associated upper back injury
necessitating treatment before and after the accident;

4.    
Injury to the right knee requiring physiotherapy
treatment;

5.    
Palpatory tenderness of the left knee,
pre-dating the accident;

6.    
Various injuries due to a December 2007
motorcycle accident including injury to the shoulder, to the chest and to the
right leg; and

7.    
Various sports injuries and prior car accident
injuries resulting in a fractured wrist, fractured arm and fractured right leg.

[45]        
Ms. Fineblit concedes that Mr. Ali was
injured in the accident. She says Mr. Ali has established he suffered a
grade 1 soft tissue injury to his low back, a contusion to his left toe, and a
contusion to his left knee.

[46]        
Ms. Fineblit submits that Mr. Ali’s ongoing complaints are
either unrelated to the accident or a consequence of his failure to receive
beneficial treatment and active rehabilitation. Ms. Fineblit takes the
position that Mr. Ali did not sustain an injury to his neck or upper back
as a result of the accident. Ms. Fineblit says the evidence supports a
finding that Mr. Ali’s neck symptoms are as a result of non-accident factors
including his work.

[47]        
Ms. Fineblit argues that Mr. Ali has demonstrated a lack of
credibility in the reports of his symptoms and injuries. His current
self-reports are inconsistent with his reports in the years following the
accident and are unreliable. Mr. Ali’s headaches existed prior to the
accident. Mr. Ali has not established that any increased symptoms are due
to the accident.

[48]        
The evidence of Dr. Dost, a neurologist, on the issue of headaches
is the most reliable assessment of the cause of Mr. Ali’s headaches and
should be preferred over the evidence of Dr. Robinson. Dr. Dost disagrees
that the worsening of Mr. Ali’s headaches is the result of a neck injury,
as there is no support for that conclusion in the medical records. Dr. Dost
contends Dr. Robinson ignored other reasonable explanations for Mr. Ali’s
headaches.

[49]        
Mr. Ali’s left toe injury resolved within six months of the
accident, and there is no evidence that his current mid-back pain was caused by
the accident. There is no temporal connection between the mid-back pain and the
accident.

[50]        
Mr. Ali’s ongoing knee problems are as a result of his failure to
receive recommended treatment, deconditioning and being overweight. Ms. Fineblit
submits that if Mr. Ali had properly exercised and sought out active
rehabilitation, his knee problems would have resolved within six months after
the accident.

Applicable Law

[51]        
In order to establish causation Mr. Ali must prove on a balance of
probabilities that but for the accident he would not have suffered the injury
he complains of.

[52]        
The Supreme Court of Canada considered causation in Clements v.
Clements, 2012 SCC 32. The Court confirmed that the basic test for
determining causation remains the “but for” test articulated in Snell v.
Farrell, [1990] 2 S.C.R. 311 and Athey v. Leonati, [1996] 3 S.C.R.
458. The plaintiff bears the burden of proving that but for the negligent act
or omission of the defendant the injury would not have occurred.

[53]        
In Athey at para.35, the Court states that the
general rule is the plaintiff must be returned to the
position he or she would have been in, with all of its attendant risks and
shortcomings, and not a better position.

Application of the Law to the Facts

[54]        
As stated earlier, Ms. Fineblit concedes that Mr. Ali was
injured in the accident. However, she takes the position that Mr. Ali is
exaggerating the nature, duration and extent of the injuries he suffered in the
accident. Ms. Fineblit submits that the evidence is that the injury to his
toe and lower back have resolved. Insofar as the injury to his left knee continues
to impair his work, household, and recreational activities, Ms. Fineblit
argues that is a result of Mr. Ali failing to follow the recommended
physiotherapy and exercise programs, and not caused by the accident.

[55]        
All of the doctors who examined Mr. Ali agree he sustained an
injury to his left knee in the accident. There is a dispute regarding whether Mr. Ali
suffered an injury to his mid-back and neck in the accident, and the extent to
which his ongoing symptoms in his left knee are the result of the accident, or the
result of Mr. Ali’s failure to participate in physiotherapy and active
rehabilitation, and maintain a healthy weight.

[56]        
Dr. Menzies, Mr. Ali’s family doctor, provided a report and
testified at the trial. Mr. Ali came to see him on October 9, 2009, six
days after the accident. At the time, Mr. Ali reported a sore left knee,
back and toes. On examination, Dr. Menzies found Mr. Ali’s left knee
painful in the area of the medial ligament and puffy. The range of motion was
normal. Dr. Menzies diagnosed a strain of the medial collateral ligament
of Mr. Ali’s left knee, a back strain, and a bruised toe. Dr. Menzies
provided him with exercises to do for his back and knee. Since the first visit Mr. Ali
has continued to complain about his left knee pain despite Dr. Menzies
stating that his left knee was almost healed in a CL 19 report to ICBC in
January 2010. In the CL 19 report, Dr. Menzies’ diagnosis was a Grade 1
strain to his low back and a sprain to his left knee that was “almost healed”.

[57]        
In November 2009, Mr. Ali was still experiencing discomfort but his
back was improving. In March 20, 2010, Mr. Ali reported that his left knee
and toe pain were worse. On October 22, 2010, approximately a year after the
accident, Mr. Ali reported to Dr. Menzies that he had re-occurring hemicranial
headaches for years which he believed were correlated to air travel. Dr. Menzies
notes that in the past running helped him control these symptoms. Mr. Ali
also complained about left knee pain.

[58]        
On January 18, 2011, Mr. Ali reported his left knee had been
hurting every day. Mr. Ali reported that his knee locked in partial
flexion accompanied by severe pain. On examination, Dr. Menzies found Mr. Ali
had a tender medial joint line, and a limited range of motion on flexion and
extension. Dr. Menzies diagnosed a meniscus tear.

[59]        
In August 2011, Mr. Ali complained about his left knee. He reported
that he occasionally got migraines and his right shoulder was bothering him.

[60]        
In May 2012, Mr. Ali reported an exacerbation of his knee pain. He
had been flying back and forth to London, England which made it worse. Mr. Ali
continued to complain of left knee pain through 2012, 2013, and 2014. As well,
he complained of back pain, neck pain and headaches from time to time. As of
December 2014, Dr. Menzies’ opinion was that Mr. Ali’s back and neck
pain related more to his work and deconditioning than the accident. Dr. Menzies
testified that part of Mr. Ali’s deconditioning was due his knee injury
making it difficult for him to exercise. Dr. Menzies’ opinion is that Mr. Ali
could have some improvement in his symptoms with physiotherapy, a brace, and
monitoring of the strengthening of his left leg. He recommended Mr. Ali
obtain a brace for his knee so that he could exercise more. However, Dr. Menzies
is of the view that Mr. Ali is not going to completely recover from the injury,
particularly the medial pain in his left knee.

[61]        
Dr. Nairn Stewart, an expert in physical medicine and
rehabilitation retained by the plaintiff, provided two reports and testified at
the trial. Dr. Stewart interviewed and examined Mr. Ali on October 23,
2013, four years after the accident. At the time, Mr. Ali was complaining
of neck pain, headaches, low back pain, and left knee pain. Mr. Ali told Dr. Stewart
he had experienced intermittent pain in his neck following the accident, as
well as headaches related to the neck pain. On physical examination, Dr. Stewart
found tenderness in his neck and shoulder muscles. Mr. Ali had a full
range of motion in his neck, back, shoulders and hips. There was tenderness
over the medial joint line of the left knee, and mild laxity in the medial
collateral ligament of his left knee. Dr. Stewart also reviewed the
medical records of Dr. Menzies and Dr. O’Brien, an orthopaedic
surgeon, who assessed Mr. Ali in June 2, 2010.

[62]        
In a report dated May 21, 2014, Dr. Stewart notes that Mr. Ali’s
medical records indicate that he had a long history of migraine-type headaches
pre-dating the accident but no history of neck, back or knee pain. Dr. Stewart’s
opinion is that Mr. Ali’s neck pain is more likely due to the fact he sits
for hours in front of his computer at work as there was no mention of neck pain
in the medical records. As well, Dr. Stewart was unable to attribute Mr. Ali’s
headaches to the accident because of his pre-existing history with headaches. Dr. Stewart
recommended that Mr. Ali participate in a regular exercise and
strengthening program, and some psychological counselling to help him adjust to
his injury. Dr. Stewart’s opinion is that Mr. Ali will continue to
experience pain and restrictions in his left knee and low back as a result of
the accident.

[63]        
Dr. Stewart provided a second report dated March 3, 2015 commenting
on the report of Dr. B.A. Masri, an orthopaedic surgeon retained by the
defendant. Dr. Stewart is of the opinion, contrary to Dr. Masri, that
it is unlikely Mr. Ali’s knee pain will resolve if he loses weight. Dr. Stewart
noted that at the time she saw Mr. Ali he reported significant ongoing
limitations with regards to his work, household and leisure activities as a
result of the injuries to his left knee and low back. Dr. Stewart states
in the March 3, 2015 report that Dr. Masri’s report did not change her
opinion that it is unlikely Mr. Ali symptoms will fully resolve, noting:

It is unlikely, in my opinion,
that those limitations which were present four years after his injury would
have disappeared in the year between my assessment of that of Dr. Masri,
or that an active exercise program would eliminate all of Mr. Ali’s
functional limitations this long after the injury.

[64]        
Dr. John Fuller, an orthopaedic specialist, provided three reports
dated November 13, 2014, March 24, 2015, and April 25, 2015, and testified at
the trial. Dr. Fuller examined Mr. Ali on October 29, 2014 and on
March 18, 2015. When Dr. Fuller examined Mr. Ali, his complaints were
headaches with a significant migraine component, recurring low back pain, and
pain and limitations in his left knee. On examination, Dr. Fuller found
there was laxity of the medial collateral ligament and to a degree the lateral
collateral ligament in his left knee. Dr. Fuller also found that Mr. Ali
had mid-back pain at the thoracolumbar junction. In Dr. Fuller’s opinion
the prognoses for further improvement of Mr. Ali’s left knee and back
symptoms are guarded given the length of time the symptoms have persisted. In Dr. Fuller’s
second report, he strongly disagrees with Dr. Masri’s opinion that Mr. Ali’s
“collateral ligaments as well as cruciate ligaments were normal.” Dr. Fuller
reiterated that he found definite laxity of the medial collateral ligament and
pain on testing it. Dr. Fuller’s opinion is that the residual laxity and
sensitivity of the medial collateral ligament in Mr. Ali’s left knee is
the primary source of his symptoms and residual disability. In his opinion, the
strengthening of Mr. Ali’s quadriceps is unlikely to improve symptoms due
to the medial collateral ligament.

[65]        
Dr. Robert Gordon Robinson, a neurologist with an expertise in
headaches, provided a report dated February 16, 2015 and testified at the
trial. Dr. Robinson interviewed and examined Mr. Ali on January 8,
2015, and reviewed the medical records and medical legal reports. Mr. Ali
reported to Dr. Robinson that he had experienced low back and left knee
pain and an increase in his pre-existing difficulties with headaches since the
accident. Mr. Ali advised Dr. Robinson he had suffered from pain in
his neck, low back and left foot following the accident. Mr. Ali reported
his neck pain had gradually improved though it continues to occasionally
tighten up. Mr. Ali told Dr. Robinson he had a history of headaches
pre-dating the accident from about 2007, or earlier. Mr. Ali did not have
any specific memory of headache difficulties up until January 2010, a few
months after the accident. Ever since then his headaches had been more frequent
and severe. Mr. Ali told Dr. Robinson that as well as being more
severe his headaches had changed in character.

[66]        
Dr. Robinson’s opinion is that it is probable that the soft tissue
injuries sustained in the accident resulted in an aggravation of Mr. Ali’s
pre-existing migraine manifested by an increased frequency, severity, and
change in character. Dr. Robinson states in his report that it is not
impossible but less likely that these changes would have occurred had the
accident not happened and Mr. Ali not suffered an injury to his neck. Dr. Robinson
agreed that if Mr. Ali had not had an injury to his neck it is less likely
that the increase in headaches was caused by the accident. Dr. Robinson
testified that the delay in the onset of the headaches was a factor he
considered. Dr. Robinson is of the opinion that due to the change of
character of the headaches, and the increase in the frequency and severity
relatively soon after the accident, the most probable cause of the exacerbation
is the accident, despite the fact Mr. Ali had not reported neck pain to
his family doctor after the accident. Dr. Robinson’s opinion is that it is
less likely that Mr. Ali’s headaches would have changed in character
frequency and severity beginning in January 2010 without the motor vehicle accident,
or that the change is caused by other factors, such as an earlier accident of
2007, or a temporomandibular joint problem.

[67]        
Dr. Masri provided reports dated January 12, 2015 and April 16,
2015, and testified. Dr. Masri, conducted an independent medical examination
of Mr. Ali on December 8, 2014. Dr. Masri states in the January
report that Mr. Ali told him he did not have neck pain right after the
accident. Dr. Masri’s opinion is that Mr. Ali suffered a mild soft
tissue injury to his low back which settled after four weeks. In his opinion,
any ongoing symptoms Mr. Ali has in his low back are due to his poor core
strength and weight gain since the accident. Mr. Ali advised Dr. Masri
he had gained approximately 40 pounds after the accident. However, as noted
earlier, Mr. Ali was still complaining about his low back in January 2010,
when Dr. Menzies completed the CL 19 report for ICBC. It is unclear given
the evidence why Dr. Masri is of the opinion that Mr. Ali’s back
symptoms settled in four weeks.

[68]        
Dr. Masri agrees Mr. Ali’s left knee was injured in the
accident when it was trapped between his motorcycle and Ms. Fineblit’s
vehicle. As a result he suffered bruising and contusion of the knee medially
and laterally. Mr. Ali’s knee has improved in Dr. Masri’s opinion but
it is not normal. However, Dr. Masri is of the view that Mr. Ali’s
knee should have returned to normal by now, and the reason it has not is that Mr. Ali
has failed to participate in a meaningful exercise program to strengthen his
muscles, particularly his quadriceps and hamstring muscles. Dr. Masri’s
diagnosis is that Mr. Ali is suffering from patellofemoral pain syndrome.
Dr. Masri agrees that being in a seated position for a long time will
trigger knee pain. Dr. Masri disagrees with Dr. Fuller that Mr. Ali
has laxity in medial collateral ligament or lateral collateral ligament.
However, Dr. Masri agreed that Mr. Ali’s left knee was normal before
the accident, and has not been normal since.

[69]        
Dr. Masri recommends that Mr. Ali participate in a well-supervised
exercise program until he has achieved symmetry in his muscles. As well, Mr. Ali
needs to lose 40 pounds, which will improve his pain. Dr. Masri’s opinion
in his report differs from those of Dr. Fuller and Dr. Stewart in
that he is of the view that the prognosis is excellent if Mr. Ali follows
an exercise program and loses weight, and that Mr. Ali’s symptoms should
improve to the point he is no longer suffering from impairment to his left
knee. However in cross-examination, Dr. Masri agreed that he could not be
certain that Mr. Ali would respond to physiotherapy and an active
rehabilitation program.

[70]        
Dr. Rehan Dost, a neurologist provided a report for the defendant
in response to the report of Dr. Robinson. Dr. Dost did not examine Mr. Ali
and did not testify at trial. Dr. Dost agrees that Mr. Ali’s
headaches worsened in a delayed fashion post-accident. However, Dr. Dost
disagrees with Dr. Robinson that Mr. Ali suffered a neck injury in
the accident. Dr. Dost states there is no basis in the medical evidence to
support a finding that Mr. Ali suffered a neck injury in the accident. Dr. Menzies’
records do not indicate any complaints by Mr. Ali of neck injury, nor do
the records of the massage therapist dated December 2, 2009. Dr. Dost also
points to the fact that Mr. Ali told Dr. Robinson his neck pain had
improved and yet he still complains of headaches. In Dr. Dost’s opinion
that does not support a conclusion that Mr. Ali’s pre-existing headaches were
exacerbated by a neck injury sustained in the accident.

[71]        
In my view, the medical evidence, and the evidence of Derek Wone the
massage therapist who treated Mr. Ali, after the accident, all support Mr. Ali’s
evidence that his left knee and low back were injured in the accident. Mr. Ali
has consistently continued to complain of left knee pain following the
accident. As well, Mr. Ali has complained of back pain intermittently
since the accident.

[72]        
However, there is no evidence that Mr. Ali reported any neck injury
or neck pain to his family doctor or his massage therapist following the
accident. The evidence is that Mr. Ali had a pre-existing history of
headaches, and had a shoulder injury in the motorcycle accident in 2007 when he
was thrown from his motorcycle.

[73]        
I agree with Dr. Stewart and Dr. Dost that there is no
evidence to support a conclusion that the exacerbation to Mr. Ali’s
headaches was caused by the accident. Dr. Robinson’s opinion that the
change to Mr. Ali’s headaches was probably caused by the accident is based
on his understanding that Mr. Ali suffered a neck injury in the accident.
Given the lack of any contemporaneous report of neck injury or neck pain and
the description of the accident, there is in my view, insufficient evidence to
conclude that Mr. Ali suffered an injury to his neck in the accident which
has exacerbated his headaches.

[74]        
In my opinion the medical evidence supports a finding that Mr. Ali
suffered injuries to his left knee, low back and toe in the accident. The
injuries to his toe resolved fairly soon after the accident. However, he has
continued to suffer from left knee pain and intermittent low back pain since
the accident. As stated earlier, I do not agree with Dr. Masri that the
evidence supports a conclusion that Mr. Ali’s back symptoms resolved
within four weeks. There is no evidence that Mr. Ali’s low back was
symptomatic prior to the accident.

[75]        
While Dr. Masri expressed the opinion in his report that Mr. Ali’s
left knee problems should have resolved and any ongoing problems are due to his
weight and lack of exercise, he resiled from that opinion in his evidence at
trial. Dr. Masri conceded that not everyone responds well to physiotherapy
or active rehabilitation, and there were no guarantees that Mr. Ali’s knee
symptoms would entirely resolve if he had participated in a regular
physiotherapy or active rehabilitation program. The evidence is that Dr. Menzies
provided Mr. Ali with exercises to perform for his knee which give him
some relief.

[76]        
Both Dr. Stewart and Dr. Fuller deal with ongoing chronic
pain, as opposed to Dr. Masri, who deals with more acute problems. In my
view, the opinion of Dr. Stewart and Dr. Fuller that an active
exercise program and weight loss may reduce Mr. Ali’s left knee symptoms
but not resolve them is to be preferred. Accordingly, I find that it is likely Mr. Ali
will continue to experience pain and limitations in his left knee. As well, the
medical evidence supports the conclusion that Mr. Ali will continue to
suffer from intermittent low back pain as a result of the accident.

[77]        
I find that but for the accident Mr. Ali would not be suffering
from the chronic pain and limitations in his left knee, and intermittent pain
in his low back.

What is the appropriate award of general damages for pain and suffering?

Applicable Law

[78]        
A plaintiff is entitled to reasonable damages for her pain and
suffering. The plaintiff should be placed in the same position she would have
been if the accident had not occurred, but not in a better position: Parypa
v. Wickware, 1999 BCCA 88, at para. 29.

[79]        
In Stapley v. Hejslet, 2006 BCCA 34, the Court noted that
a non-pecuniary award will vary to meet the specific circumstances of each
case, and set out the factors to be considered in making such an award:

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

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of
pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of
life;

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

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

(h)        impairment of physical
and mental abilities;

(i)         loss of lifestyle; and

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

Plaintiff’s position

[80]        
Mr. Ali submits he has suffered a serious chronic injury to his
left knee, an aggravation to his headache condition, and an injury to his back
in the accident. Mr. Ali submits that the appropriate award for general
damages is $75,000. Mr. Ali relies on the following cases as support for an
award in that amount: Bradshaw v. Matwick, 2009 BCSC 564, where a
plaintiff who had suffered an injury to his neck, back and knee, causing him
pain for three years was awarded $70,000; Haley v. Gust, 2010 BCSC 1143,
where a 35 year old plaintiff who suffered a permanent ligament rupture in her
knee was awarded $75,000; and Penner v. Silk, 2009 BCSC 1682, rev’d on
other grounds 2011 BCCA 135, where a 51 year old plaintiff with chronic
patellar injuries affecting his work was awarded $80,000 for non-pecuniary
damages.

Defendant’s Position

[81]        
Ms. Fineblit submits that the appropriate award for non-pecuniary
damages is between $35,000 to $50,000. In support, Ms. Fineblit relies on Hartman
v. Dias, 2006 BCSC 478, where a 20 year old plaintiff who suffered an
injury to her knee with ongoing pain five years later was awarded $30,000; Foley
v. Imperial Oil Limited, 2010 BCSC 797, where a 31 year old plaintiff who
suffered a dislocated knee cap and some minor scrapes and strains was awarded
$43,500; Dodsworth v. Krenus, 2010 BCSC 267, where a 24 year old
plaintiff who suffered a knee injury who was unable to weight bear for 13
months and continued to suffer from knee pain was awarded $45,000; Lourenco
v. Pham, 2013 BCSC 2090, where a 22 year old plaintiff who suffered from
ongoing headaches, neck pain, back pain and knee pain was awarded $50,000; and Grudzien
v. Hu, 2013 BCSC 720, where a 46 year old plaintiff who suffered continuing
limitation in his low back and right knee three years after the accident was
awarded $50,000.

 Application of the Law to the Facts

[82]        
As indicated above, Ms. Fineblit concedes that Mr. Ali
suffered a soft tissue injury to his back and an injury to his left knee in the
accident.

[83]        
It is clear from Mr. Ali’s evidence, as well as the evidence of his
family, treating health care professionals and the medical experts that he is
suffering from ongoing symptoms in his left knee and low back.

[84]        
Prior to the accident Mr. Ali did not have any problems with his
left knee or low back. The evidence is that Mr. Ali’s knee injury has
impacted all areas of his life, including his work. The evidence is that he was
very physically active, and ran and hiked on a regular basis to offset the
sitting demands of his job. Since the accident, he has not been able to return
to many of his pre-accident activities, such as running, snowboarding and
hiking. As well, Mr. Ali’s ongoing left knee symptoms prevent him from
doing some of the household chores, and his wife has taken on more of the
household duties and cleaning. Mr. Ali’s wife and sister testified that
his mood had changed since the accident and he does not have the easy going
nature he did prior to the accident.

[85]        
The evidence is that the symptoms from his left knee and back injury
have all impacted his work. Mr. Ali travelled by plane frequently for his
work prior to the accident. Since the accident, Mr. Ali had limited his air
travel because he has trouble sitting on long flights. Mr. Ali testified
that he experiences increased pain in his knee after sitting on flights. As
well, Mr. Ali has increased back and knee symptoms from sitting at his
desk or standing for long periods of time.

[86]        
As noted earlier, while there maybe some improvement to Mr. Ali’s
left knee and back symptoms over time with a supervised exercise program, there
is a likelihood that his left knee injury will cause limitations and pain
indefinitely and he will suffer from ongoing flare ups of back pain. I find
that as a result of the accident, Mr. Ali has been left with ongoing
chronic pain in his left knee which is unlikely to resolve, and intermittent
pain in his back. Dr. Fuller and Dr. Stewart agree it is likely Mr. Ali
will have some symptom improvement with further physiotherapy and/or active
rehabilitation.

[87]        
I have reviewed the cases provided. Each case has distinctive facts, and
it is often difficult to reconcile them as awards for pain and suffering are
individual in nature. The cases provided by Mr. Ali are to some extent
predicated on his submissions that the accident exacerbated his headaches,
which as stated above, is not supported by the evidence. The cases provided by Ms. Fineblit
are to some extent predicated on her submissions that Mr. Ali’s back
improved within four weeks of the accident which were rejected.

[88]        
In summary, the accident caused injuries to Mr. Ali’s left knee and
back which have been slow to resolve. There is a likelihood that the symptoms
and restrictions of the left knee are permanent, and he will continue to suffer
from intermittent back pain as a result of the accident. Having considered the
evidence, and the cases provided by counsel, it is my view that an award of
non-pecuniary damages in the amount $70,000 is appropriate.

Past Loss of Income and Income Earning Capacity

Plaintiff’s Position

[89]        
Mr. Ali advances a claim for
past loss of income and income earning capacity from October 3, 2009 until June 8, 2015, in the amount of $169,487.00 net
based on an assessment prepared by Jeff Matthews, a chartered accountant.

[90]        
All the evidence provided points
to the fact that Mr. Ali is an enthusiastic and hard worker. At the time
of the accident, Mr. Ali was operating a business as an independent
consultant doing onsite computer consulting. Most of Mr. Ali’s clients are
located in the eastern United States.

[91]        
Mr. Ali’s business required
that he travel on a weekly basis by plane to his client’s workplace. Mr. Ali
says the evidence supports a finding that as a result of his knee injury, he
was unable to continue to travel by plane to the same extent, and as a result,
has lost income. Mr. Ali has continued to perform off-site work as a
computer consultant, but says it takes him significantly longer to produce the
same volume and his skills are less valuable if he is not onsite at his
customer’s workplace. Mr. Ali submits that based on a true comparison of
pre-accident and post-accident revenues, his skills are worth significantly
more in various remote locations, accessible only by air travel. The injuries
he sustained in the accident have prevented him from utilizing his skill sets
in a more profitable manner.

[92]        
Prior to the accident Mr. Ali
was in high demand and did not have to look for work. During 2012 and 2013, Mr. Ali
worked on fewer and smaller projects. As a result of working off site, Mr. Ali
receives fewer referrals, and he is no longer in demand. Mr. Ali describes
it as “out of sight, out of mind”. Due to his inability to travel, Mr. Ali
was forced to turn down three lucrative onsite projects. Mr. Ali’s
evidence at trial is that he has not had work since October 2014.

Defendant’s position

[93]        
Ms. Fineblit concedes that Mr. Ali
lost income for three to four weeks of work following the accident, or the
amount of $7,600 gross. Ms. Fineblit points to fact Mr. Ali continued
to work after the accident doing the same type of work. Mr. Ali billed 1840 hours in 2010 the year following the accident
which was more hours than he billed in any previous year, while continuing to
travel extensively. Ms. Fineblit
says that Mr. Ali has failed to prove a connection between any loss of
earnings and the accident.

[94]        
Paul Pakulak, an occupational
therapist retained by Mr. Ali, performed a functional capacity evaluation
of Mr. Ali and found that he demonstrated the capacity to perform the work
of a software engineer and technology management consultant at a competitive
and sustainable pace.

[95]        
Ms. Fineblit submits that the changes to Mr. Ali’s
business were the result of other factors. Despite the fact Mr. Ali claims
he had to agree to a lower hourly rate from his onsite rate of US$110 per hour
as a result of the accident, in 2009 Mr. Ali negotiated and agreed to two
new projects both at US$95 per hour. The terms of these projects were
established before the accident and there is no evidence that the projects
changed after the accident or that Mr. Ali’s role on the projects changed.
Any consequences resulting from Mr. Ali’s decision to work on these
projects is not related to the accident.

[96]        
Mr. Ali has failed to produce a witness
from KANA, his main source of referrals or any clients. There is no
corroborating evidence from witnesses or documentation to support Mr. Ali’s
perceptions of his business. The only evidence before the court is Mr. Ali’s
self-reports, perceptions and speculation.

[97]        
The evidence does not support a finding that Mr. Ali’s air travel
is curtailed by his knee injury. There are many ways to accommodate his knee
injury symptoms on flights as set out in the report of Robert Gander, an
occupational therapist.

[98]        
There is evidence that Mr. Ali experienced difficulty with air
travel with pre-existing head-ache condition. In the year following the
accident, Mr. Ali took more flights than the previous years.

[99]        
In 2008, Mr. Ali married and had a son. Ms. Fineblit
submits that it is reasonable to infer that Mr. Ali changed the nature of
his business to accommodate his new family.

Legal Framework

[100]     In Smith
v. Knudsen, 2004 BCCA 613, the Court confirmed the approach to be taken to
hypothetical events such as loss of opportunity for past and future earnings. A
plaintiff must prove that an injury had an effect on his or her ability to earn
income on a balance of probabilities, but once that has been established,
hypothetical events need not be proved on a balance of probabilities. Rather,
they are to be given weight based on their likelihood.

Application of the Law to the Facts

[101]     As noted
above, Ms. Fineblit concedes that Mr. Ali’s suffered an injury to his
left knee and back in the accident. As well, Ms. Fineblit concedes that Mr. Ali
suffered loss of past income for approximately 3 to 4 weeks following the
accident. However, she takes the position that the past loss of wage based on Mr. Ali’s
inability to travel is not made out on the evidence.

[102]     Ms. Fineblit
argues that the evidence of his work post-accident does not support Mr. Ali’s
ongoing income loss claim after the first couple of months.

[103]     Mr. Ali’s
income tax returns from 2007 to 2013 do not establish a decrease in income post-accident.
His income tax returns show the following total income made up of employment
income and dividends:

·      
2007: $45,806

·      
2008: $47,248

·      
2009: $99,500

·      
2010: $90,000

·      
2011: $83,000

·      
2012: $83,700

·      
2013: $108,700

[104]     Mr. Ali
has not provided any personal or corporate income tax returns for 2014.

[105]     It is
clear from the evidence that Mr. Ali continued to work at his job
post-accident, including travelling by plane for work. Although Mr. Ali
complains that the plane travel causes him knee pain, none of the medical experts
have provided an opinion he is unable to fly. Mr. Ali’s evidence is that
it takes him longer to perform work, but as noted by Ms. Fineblit, he
billed more hours and travelled more in 2010, the year following the accident,
than he had in any year preceding it. Mr. Ali’s explanation for the travel
is that he had a job in California which meant shorter flights, which he could
handle.

[106]     Dr. Fuller
was unable to explain Mr. Ali’s problem with air travel, except to say
ones movement is curtailed in an aircraft. There is evidence that Mr. Ali
has increased knee pain as a result of sitting in one position for a length of
time.

[107]     Mr. Gander,
the occupational therapist who conducted a functional capacity analysis,
discussed air travel requirements and Mr. Ali’s sitting restrictions. As
noted by Mr. Gander, in determining Mr. Ali’s capacity to travel on
airplanes over variable durations the quantity of leg room available is a
relevant consideration. Mr. Ali has a requirement to position his knee in
a 45 degree angle of flexion should uninterrupted intervals of sitting continue
beyond about an hour and 15 minutes. Mr. Gander considered the amount of
leg room available in the different classes and concluded Mr. Ali did not
have any functional limitations for travelling by air in classes apart from
economy.

[108]     Typical
leg room provided in economy class allows a male passenger of average height to
maintain his knees in 60 to 80 degree flexion, which Mr. Ali is able to
perform in repeated intervals of approximately an hour and a half. Mr. Ali
is 5’7” which is shorter than the typical North American male, and accordingly
his knees would be in lesser flexion. In Mr. Gander’s opinion, Mr. Ali’s
sitting capacity is compatible with the usual demands of prolonged air travel
in economy class. Mr. Gander states that it is possible to obtain a seat,
such as an aisle seat which allows him to extend his knee, or stand at
intervals, if he cannot obtain an aisle seat or seat with more leg room.

[109]     Although Mr. Ali
argues that Mr. Gander does not have the expertise to comment on his
ability to endure lengthy and frequent flights, Mr. Gander has expertise
in assessing an individual’s sitting capabilities, and what is necessary to
accommodate limitations. In my view, Mr. Gander’s evidence is borne out by
the fact that Mr. Ali took more flights in the year after the accident
while billing more hours than he had during any prior year.

[110]     Mr. Ali
asserts that it was not until 2011 when the effects of the accident began to show.
In 2011, Mr. Ali suffered a dramatic dip in his billable hours. Mr. Ali
says the decrease in billable hours in 2011 is result of having to turn down
projects because he was unable to perform onsite work because he could not
travel every week. However, two of the projects he turned down were in
Australia. It is unlikely he would have been able to commute to Australia on a
weekly basis to either location from Vancouver. I note as well, in August 2011,
Mr. Ali told Dr. Menzies that he was going to physiotherapy when he
is in town but it is a difficult task. However, Mr. Ali only attended
physiotherapy once in 2011, even though his evidence was that he was in Vancouver
for most of the year because of his inability to travel.

[111]     In 2012, Mr. Ali’s
billable hours increased to 1568 hours, which was more than he had billed in
2008, the year prior to the accident.

[112]     In my
view, Mr. Ali has not established he suffered an ongoing past loss of
income as a result of the accident. It is apparent from the evidence that Mr. Ali’s
earning and billable hours through his company fluctuate and are project
dependent. In the year following the accident, Mr. Ali billed more hours
and took more flights than any other year.

[113]     Although Mr. Ali
submits he was forced to reduce his hourly rate because he did not want to
travel after the accident, the evidence is that he reduced his rate for two
projects prior to the accident. Mr. Ali agreed his rates fluctuated and
based on the type and duration of the job.

[114]     Mr. Ali’s
evidence is that he reduced his travel schedule due to the fact he would
experience an exacerbation to his knee pain after airplane travel. That became
particularly pronounced on longer flights and flights in commuter planes where
the seats have less leg room.

[115]     As noted,
there is no expert evidence that Mr. Ali’ injuries restrict his air travel,
or that recommend he restrict his air travel. In fact, the evidence is to the
contrary. Dr. Fuller does not have an explanation for Mr. Ali’s
problem with air travel. Mr. Gander’s opinion is that even in economy with
a non-optimum seat Mr. Ali has the sitting capacity for airplane travel. Mr. Ali
travelled frequently in the year following the accident with no effect on his
billable hours. Accordingly, I have concluded the evidence does not support a
finding that the injuries Mr. Ali sustained in the accident have caused a
loss of past income earning beyond the first few weeks following the accident. I
have taken into consideration that air travel may cause Mr. Ali to
experience pain in his knee in the award for non-pecuniary damages.

[116]     Mr. Ali’s
evidence is that he could not travel until four to six weeks after the
accident. At the time of the accident, Mr. Ali was working on a project
earning US$95 per hour for IBM. In my view, having considered the evidence, an
award of $25,000 is appropriate, based on a 40 hour week for six weeks.

Loss of future income earning capacity

[117]     Mr. Ali
seeks an award for the loss of future earning capacity. As noted earlier, Mr. Ali’s
asserts that his capital asset, a healthy body, has been significantly impaired
or damaged due to injuries he sustained in the accident. He takes the position
that he is entitled to be compensated as his ability to earn income has been
compromised.

[118]     In my
view, the capital asset approach rather than the earnings approach is the
appropriate approach to use in determining any loss of future income earning
capacity for Mr. Ali as he has continued to be self-employed since the
accident.

Legal Parameters

[119]    
In Perren v. Lalari, 2010 BCCA 140, the Court noted that the
first inquiry in dealing with a claim of this nature is whether there is a
substantial possibility of future income loss. The Court stated at para. 32:

[32] A plaintiff must always prove,
as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, that there is a real and
substantial possibility of a future event leading to an income loss. If the
plaintiff discharges that burden of proof, then depending upon the facts of the
case, the plaintiff may prove the quantification of that loss of earning capacity,
either on an earnings approach, as in Steenblok, or a capital asset
approach, as in Brown. The former approach will be more useful when the
loss is more easily measurable, as it was in Steenblok. The latter
approach will be more useful when the loss is not as easily measurable, as in Pallos
and Romanchych…

[Emphasis in
original]

[120]     The award
for future loss of earning capacity represents compensation for a pecuniary
loss. It is an assessment rather than mathematical calculation; however, there
is a comparison between a plaintiff’s likely future earnings before and after
the accident: Rosvold v. Dunlop, 2001 BCCA 1, at paras. 11-12. Under
the capital asset approach, a trial judge may begin by comparing the present
value of the difference between the plaintiff’s earnings before and after the
injury; however, that is not conclusive.

[121]     In
determining a plaintiff’s loss of future income earning capacity, some of the factors
to be considered in making the assessment include:

·      
Has the plaintiff been rendered less capable overall from earning
income from all types of employment?

·      
Is the plaintiff less marketable or attractive to an employer as
an employee?

·      
Has the plaintiff lost the opportunity to take advantage of all
job opportunities he or she was injured?

·      
Is the plaintiff less valuable to him or herself as a person
capable of earning income in a competitive labour market?

Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353; Perren,
at para. 11.

[122]    
In Shapiro v. Dailey, 2012 BCCA 128, the Court discussed the
difficulties in assessing an award for loss of future capacity as follows:

[40] The inherent difficulties of assessing awards for
hypothetical future events are well-known. The exercise has been variously
described as “gazing into a crystal ball” (Andrews v. Grand & Toy
Alberta Ltd., [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452 at 469) and “an
estimate based on prophesies” (Morris v. Rose Estate (1996), 23 B.C.L.R.
(3d) 256 at 263). In Morris, as Mr. Justice Donald observed at 264:

… The defendant’s arguments unduly focus on the mechanics
of the judge’s calculation and they fail to recognize that in the end it is the
judge’s sense of what is fair compensation that matters. There is much more art
than science in the process. Accordingly, on appeal any missteps that may have
occurred in arriving at an award are unimportant if the figure falls within the
range of reasonable compensation.

Plaintiff’s position

[123]     Mr. Ali
asserts that he has demonstrated there is a real and substantial possibility
that he will continue to generate less income for his company than he otherwise
would but for the accident. His losses will continue into the future because the
improvements in his injured left knee and back have plateaued and as a result
he continues to work at a significantly reduced capacity.

[124]     Mr. Ali’s
capital asset, a healthy body, has been significantly impaired or damaged due
to the injuries he sustained in the accident. He is entitled to be compensated
as his ability to earn income has been compromised. Mr. Ali says he is
less marketable as a sub-contractor or resource to KANA, he has lost the
ability to take advantage of all job opportunities offered to him, and he is
less valuable to himself. Mr. Ali says based on the report prepared by Mr. Matthews,
the net present value of his income loss until age 65 is $439,000.

[125]     Mr. Ali
says he does not have a customer base in Vancouver, and that there is no market
for his specialized skills in Vancouver. His customers have been, for the most
part, large US and international corporations. Due to the decline in referrals
and business, he has considered taking a job, which would involve uprooting his
family and abandoning his dream home that he recently constructed on Bowen
Island.

[126]     Ms. Fineblit
says he can perform the onsite job with accommodations, as set out in Mr. Gander’s
report. Mr. Ali says the evidence regarding the difference between an
economy ticket and a business class ticket on various airlines shows that the
lowest cost differential between Vancouver and Chicago is $343,222 to age 65
based on 80 flights per year. Mr. Ali submits that evidence supports an
award of $439,000 for loss of capacity to earn future income.

Defendant’s position

[127]     Ms. Fineblit
takes the position that Mr. Ali has not proved that there
is a real and substantial possibility of a future event leading to an income
loss. Ms. Fineblit says Mr. Ali has not produced any independent
evidence that his income has been impacted by the injuries he sustained in the
accident. Although Mr. Ali asserts that he is not getting any referrals
from KANA due to his injuries, he has not called anyone from KANA. Nor has he
called any representatives of any of his clients.

[128]     Mr. Ali’s future loss of capacity claim is based on the fact he
cannot travel by air. However, there is no expert evidence that his air travel
is restricted.

[129]     Ms. Fineblit
points to the fact that Mr. Ali’s income records cease in 2013, with an
incomplete record for 2014, and no financial evidence for 2015. Ms. Fineblit
submits in the absence of this evidence there is no evidential foundation to
establish an ongoing income loss.

Application of the Law to the Facts

[130]     In my
view, Mr. Ali has failed to prove that there is a real
and substantial possibility of a future event leading to an income loss. While
he may have limitations as a result of the injuries, Mr. Pakulak’s opinion
is that Mr. Ali demonstrates the capacity to complete the work of a
technology management consultant on a full time basis at a competitive and
sustainable pace. Prolonged sitting will continue to increase symptoms and he
will need to change positions periodically to manage the symptoms. Mr. Gander
is of the same opinion.

[131]     As stated
earlier, the evidence does not support a finding that Mr. Ali is unable to
travel by air, or that he has suffered an ongoing income loss as a result of
the injuries sustained by the accident.

[132]     Accordingly,
I am of the view that Mr. Ali has not established that he has suffered a future
loss of income earning capacity.

Cost of Future Care

Loss of Housekeeping Capacity

Plaintiff’s Position

[133]     Mr. Ali is advancing a claim for loss of housekeeping capacity.
He says as a result of injuries sustained in the accident, he has been
restricted in his ability to help his wife with household chores. Mr. Ali
says he is no longer able to wash the floors, clean the large windows at their
new house, or clean the bathrooms. Mr. Ali says his limitations with
regard to household chores have become more pronounced since December 2014, when
his family moved into their new house on Bowen Island. Mr. Ali is
restricted in his ability to perform yard work and home maintenance tasks that
are physically demanding. As a result of his injuries and pain, there is a real
and substantial possibility that Mr. Ali will have to hire someone to
perform these tasks for him that he would otherwise do himself. His wife is
engaged in the care of their two young children, one of whom is a newborn.

[134]     Mr. Ali says his new family home on Bowen Island is large, and
he is unable to do yard work. Mr. Ali’s evidence is that before the accident
he was able to perform a significant portion of the housework, that he did yard
work with and for his parents, and that he enjoyed working on more advanced
home projects for himself. Mr. Ali says he is very handy and enjoyed home
renovation tasks. Before the accident, he renovated the kitchen and bathroom in
his apartment.

[135]     Mr. Ali requires assistance for the heavier tasks around the home
including landscaping. He has assessed his needs on the basis of an hour per
week at $37.50 per hour ($37.50 x 52 weeks per year = $1,950) or approximately
$2,000 per year. The calculation is based on Mr. Gander’s evidence that the
cost of landscaping would range from $25 to $50 per hour. An average rate
between the two would be $37.50 per hour.

[136]     Mr. Ali says that using the multipliers provided by Darren
Benning, an economist, an award of $2,000 per year until he reaches age 70 is
appropriate, given his inability to carry out household cleaning and home
maintenance tasks. Using a cumulative multiplier the sum of $2,000 per year
results in a net present value of $44,040.00 for this head of damages.

Defendant’s position

[137]     Ms. Fineblit takes the position that the home support
services being claimed are not medically necessary and should not be awarded.

Legal Parameters

[138]    
The law regarding the compensation for loss of
housekeeping capacity is set out in McTavish v. MacGillivray, 2000 BCCA
164, at para. 63:

[63] As
we have seen, it is now well established that a plaintiff whose ability to
perform housekeeping services is diminished in part or in whole ought to be
compensated for that loss. It is equally well established that the loss of
housekeeping capacity is the plaintiff’s and not that of her family. When
family members have gratuitously done the work the plaintiff can no longer do
and the tasks they perform have a market value, that value provides a tangible
indication of the loss the plaintiff has suffered and enables the court to
assign a specific economic value in monetary terms to the loss. This does not
mean the loss is that of the family members or that they are to be compensated.
Their provision of services evidences the plaintiff’s loss of capacity and
provides a basis for valuing that loss. The loss remains the plaintiff’s loss
of economic capacity.”

Application of the Law to the Facts

[139]     As set out earlier, the medical evidence establishes that Mr. Ali
has restrictions as a result of the accident to his left knee and intermittent
pain in his low back.

[140]     Dr. Stewart was of the view that it was likely Mr. Ali
will continue to be limited with regard to performing more strenuous household tasks
in the future because of his injuries in the motor vehicle accident. As
well, Dr. Fuller’s opinion is that Mr. Ali will be unlikely to
perform heavier household tasks as a result of his ongoing knee injury. In his report, Mr. Pakulak states that Mr. Ali has demonstrated
limited capacity for the more physically demanding household chores, yard work
and home maintenance.

[141]     Both Mr. Ali
and his wife have testified regarding the difficulties he has had doing
household chores and yard work.

[142]     In
my view, the evidence establishes there is some medical justification for the
provision of some assistance to Mr. Ali in the future in regards to
heavier chores and yard work. In my opinion, the claim Mr. Ali is making
based on one hour of assistance per week at $37.50 is reasonable. Accordingly,
I am awarding $44,040.00 for this head of damages

Cost of Future Care

Plaintiff’s position

[143]     Mr. Ali
is claiming $27,700 for the cost of psychological counselling, an active
rehabilitation program, and monthly massage therapy. Mr. Ali notes that Dr. Stewart
recommended he provided with a personal trainer, a gym pass, 12 sessions of
psychological counselling and monthly massage therapy. Mr. Ali points to
the fact that Ms. Fineblit has not presented any evidence to rebut Dr. Stewart’s
opinion.

[144]     There is
evidence of the cost of the various treatments recommended by Dr. Stewart.
Using the costs provided the sum of $27,000 is a reasonable award under this
heading.

Defendant’s position

[145]     Ms. Fineblit
concedes that Mr. Ali needs some future care, and in particular to participate
in an active rehabilitation program, in order to reach maximum medical
recovery. However, Ms. Fineblit says that $15,000 is an appropriate award
under this head of damages.

[146]     The amount
of $15,000 is an estimate and Ms. Fineblit is not relying on any evidence
to establish that as the appropriate award.

Legal Parameters

[147]     Cost of
future care is established if there is a medical justification for the claim,
and the claim is reasonable. An award under this head of damages is based on
what is reasonably necessary to promote the physical and mental health of a plaintiff:
Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 78 (S.C.); aff’d
(1987), 49 B.C.L.R. (2d) 99 (C.A.).

Application of the Law to the Facts

[148]     As noted, all of the experts are of the view that it is likely Mr. Ali
will have some further symptom improvement with either more physiotherapy or an
active rehabilitation program.

[149]     Dr. Stewart recommends that Mr. Ali have psychological
counselling in the form of cognitive therapy to help him adjust to his injury.
In Dr. Stewart’s view, 12 sessions is appropriate. As well, Dr. Stewart
recommends monthly massage therapy for symptom relief.

[150]     Dr. Menzies agrees with Dr. Stewart that some
psychological counselling would benefit Mr. Ali.

[151]     As noted, Ms. Fineblit agrees that Mr. Ali should be
awarded some amount for an active rehabilitation program. The amount she
suggests is not based on any evidence or expert opinion.

[152]     There is evidence that 12 sessions of psychological counselling
would cost approximately $2,400 at $200 per session. The cost of an active
rehabilitation program is between $2,000 and $5,000. An average of these
figures is $3,500. Derek Wone, Mr. Ali’s massage therapist, testified that
the cost of a session is $105. Six sessions per year would cost $630. There is
evidence that a gym pass costs approximately $360 per year. Using a multiplier
from Mr. Benning’s report, the cost of $990 per year for massage and a gym
pass until Mr. Ali reaches the age of 70 results in a net present value of
$21,800.

[153]     Having considered the evidence and submissions, I am of the view
that an award in the amount of $27,700 is appropriate.

Mitigation

Defendant’s position

[154]     Ms. Fineblit takes the position that Mr. Ali has failed to
mitigate his damages by following the recommended treatment, and in particular
the recommendation that he attend physiotherapy. Ms. Fineblit takes the
position that non-pecuniary damages and past loss of income should be reduced
by 20% as a result of Mr. Ali’s failure to mitigate.

Plaintiff’s position

[155]     Mr. Ali submits that the only recommended treatment at the
outset for his injuries was a diagrammed back and knee exercise regimen
provided by Dr. Menzies. Mr. Ali has followed that regimen diligently
and it continues to offer him some relief. He has also attempted to return to
jogging and cycling. After 6 to 8 weeks of attempting to do those activities,
his left knee hurts, feels loose, and the pain in his knee wakes him up at
night. Mr. Ali testified that massage therapy, also recommended by Dr. Menzies
and more recently endorsed by Dr. Stewart, has provided temporary
symptomatic relief. He also received massage treatment when he was travelling
for work.

[156]     Mr. Ali acknowledges that ideally he could have made more of an
attempt to attend physiotherapy initially. He testified that he had to
prioritize work over physiotherapy and that it consumed a significant portion
of his working day to attend a physiotherapy appointment. However, that alone
does not lead to a failure to mitigate.

[157]     Ms. Fineblit argues that an active rehabilitation program and
physiotherapy would have reduced the damages suffered. However, Ms. Fineblit
did not provide any evidence from a physical medicine and rehabilitation
specialist to advance her case for a failure to mitigate. Dr. Masri
resiled from his opinion that active rehabilitation and weight loss would result
in Mr. Ali’s symptoms reducing to the point that he is no longer
suffering from any impairment to his left knee, stating that
he could not say how Mr. Ali would respond or how effective treatment
would be. Dr. Masri testified that over 50% of people would improve and,
on average, he would expect some improvement. Dr. Masri’s opinion is that Mr. Ali’s
pain would be somewhat better.

[158]     Mr. Ali points to the fact that Dr. Stewart and Dr. Fuller
are not in agreement with Dr. Masri that Mr. Ali would have recover
if he lost weight and participated in an active rehabilitation program.

Legal Parameters

[159]     There is
no question that every plaintiff has an obligation to take reasonable steps to
reduce the damages flowing from a tort. In order to be successful in
discharging the burden of proving that Mr. Ali has failed to mitigate, Ms. Fineblit
must establish that Mr. Ali failed to undertake a recommended treatment,
that by following the recommended treatment Mr. Ali would have overcome
the problem, and that the refusal to take the treatment was unreasonable: Chiu
v. Chiu, 2002 BCCA 618; Wahl v. Sidhu, 2012 BCCA 111, at para. 32.

[160]    
The mitigation test is a subjective/objective
test. In Gregory v Insurance Corporation of British Columbia, 2011 BCCA
144 at para. 53, the Court reiterated the following test from Chiu:

In Chiu v. Chiu, 2002 BCCA 618 at para. 57, this
Court set out the test for failure to mitigate as follows:

[57] The onus is on the defendant to prove that the
plaintiff could have avoided all or a portion of his loss. In a personal injury
case in which the plaintiff has not pursued a course of medical treatment
recommended to him by doctors, the defendant must prove two things: (1) that
the plaintiff acted unreasonably in eschewing the recommended treatment, and
(2) the extent, if any, to which the plaintiff’s damages would have been
reduced had he acted reasonably. These principles are found in Janiak v.
Ippolito, [1985] 1 S.C.R. 146.

Application of the Law to the Facts

[161]     I agree
with Ms. Fineblit that Mr. Ali did not follow the recommendation to attend
physiotherapy following the accident. However, he has provided a reasonable
explanation as to why he did not attend physiotherapy after the accident. As
noted earlier, Mr. Ali continued to work in the year following the
accident, including travelling extensively, which made the scheduling of
appointments difficult.

[162]     Dr. Menzies
provided Mr. Ali with exercises that he continued to do following the
accident.

[163]     As noted
earlier, Dr. Masri resiled from the opinion in his report that Mr. Ali’s
left knee problems should have resolved and any ongoing problems are due to his
weight and lack of exercise, in his evidence at trial. Dr. Masri conceded
that not everyone responds well to physiotherapy or active rehabilitation, and
there were no guarantees that Mr. Ali’s knee symptoms would entirely
resolve if he had participated in a regular physiotherapy or active
rehabilitation program.

[164]     As well,
as noted earlier, the opinion of Dr. Stewart and Dr. Fuller that an
active exercise program and weight loss may reduce Mr. Ali’s left knee
symptoms but not resolve them is to be preferred.

[165]     While Mr. Ali
may have had a better recovery if he had exercised more, the evidence does not
support a conclusion that Mr. Ali would have received substantial benefit
which would have reduced his damages if he had attended physiotherapy. The
evidence is that regardless of physiotherapy or active rehabilitation, Mr. Ali
will be left with a permanent partial disability to his left knee which will
impact his ability to stand or sit for lengths of time, and limit him from
returning to his pre-accident activities, including hiking, jogging and
snowboarding.

[166]     I note as
well that Ms. Fineblit concedes that some award for past loss of income
earning capacity should be made. In the circumstances, I have concluded that Ms. Fineblit
has not established that the awards for non-pecuniary damages or past loss of
income earning capacity should be reduced on the basis that Mr. Ali failed
to mitigate his damages.

Special Damages

[167]     Mr. Ali
claims the amount of $1,395.00 for massage therapy. Ms. Fineblit takes the
position that there should be no award for special damages. However, she has
provided no basis for that opinion.

[168]     The
evidence is that Mr. Ali has spent $1,395 for massage therapy as a result
of the injuries he sustained in the accident. In my view, he is entitled to be
reimbursed in that amount.

Conclusion

[169]     As set out
above, I find that Ms. Fineblit is liable for the accident, and Mr. Ali
is not contributorily negligent.

[170]     I am
awarding the following for the injuries suffered by Mr. Ali accident:

Non-pecuniary damages – $70,000

Past loss of income earning capacity – $25,000

Future loss of income earning capacity – $0

Loss of Housekeeping capacity – $44,040.00

Cost of Future Care – $27,700

Special Damages – $1,395

Total – $168,135

[171]    
As well, Mr. Ali is entitled to costs at Scale B.

“Gerow, J.”