IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151116

Docket: M131572

Registry:
Vancouver

Between:

Aslam Ali

Plaintiff

And

Sukhvinder Kaur
Rai and Gaggandeep Rai

Defendants

– and –

Docket: M141642

Registry:
Vancouver

Between:

Aslam Ali

Plaintiff

And

Laura J. Glover

Defendant

– and –

Docket: M149116

Registry:
New Westminster

Between:

Sukhvinder Kaur
Rai

Plaintiff

And

Aslam Ali

Defendant

Before:
The Honourable Madam Justice Duncan

Reasons for Judgment

Table of Contents

Introduction. 4

The First Accident. 4

Liability for the First Accident. 7

The Second Accident. 9

Liability for the Second Accident. 16

Damages. 18

The Plaintiff, Mr. Ali 18

The Plaintiff’s Duties at Richmond
Custom Bindery before the Accidents. 19

The Plaintiff’s Leisure Activities
Before the Accidents. 21

The Plaintiff’s Pre-Accident Health. 22

The Plaintiff’s Condition after the
First Accident 22

The Plaintiff’s Condition after the Second
Accident 24

The Plaintiff’s Abilities at Work
after the Accidents. 26

The Medical Evidence. 27

Dr. Russell O-Connor,
Physiatrist 27

Dr. Terence O’Farrell – the
defence expert 28

Dr. Gurdeep Parhar 30

Other Expert Evidence. 31

Mr. Russell McNeil –
occupational therapist 31

Credibility and Reliability. 31

Non-Pecuniary Damages. 33

Past Income Loss. 35

Loss of Future Earning Capacity. 36

Special Damages. 39

Cost of Future Care. 40

Summary. 41

Costs. 42

Introduction

[1]           
The plaintiff, Aslam Ali, was in two motor vehicle accidents. The First
Accident was on February 26, 2011. The defendant driver is Laura Glover. The
Second Accident was on April 24, 2011. The defendant driver is Sukhvinder Kaur
Rai (Mrs. Rai).

[2]           
Mrs. Rai brought an action against Mr. Ali for the Second
Accident, but settled the matter before this trial concluded.

[3]           
These reasons will deal with liability for the two accidents in which Mr. Ali
is the plaintiff as well as his damages.

The First Accident

[4]           
The First Accident occurred at the intersection of 8^th Avenue
and Sangster Place in New Westminster. It was rush hour and traffic was heavy.

[5]           
Mr. Ali was driving southwest on 8^th Avenue towards
McBride Avenue. The defendant, Ms. Glover, was exiting the Justice Institute
parking lot northbound across 8^th Avenue to Sangster Place. There are
two exit lanes from the Justice Institute at that location. Arrows are painted
on each indicating either an eastbound (right turn) or westbound (left turn)
turn is permitted. For ease of reference I will refer to this area as the
Sangster Place intersection, although Sangster does actually not cross 8^th
Avenue. There are no traffic control devices for southwest traffic on 8^th
Avenue where it intersects with Sangster Place.

[6]           
To the southwest of the Sangster Place intersection is McBride Avenue,
which leads to the Pattullo Bridge. There is a traffic light at that
intersection with a left hand turn lane for bridge bound traffic. The left hand
turn lane starts slightly southwest of the Sangster Place intersection.

[7]           
To the northeast of the Justice Institute, 8^th Avenue goes
uphill. The hill flattens somewhat out around Sangster Place.

[8]           
Mr. Ali was driving southwest on 8^th Avenue in the curb
lane in his Toyota Sienna van. He had one passenger, Ashik Hussan. Mr. Ali
was headed home to pick up his son for soccer practice. He was not in a hurry.
Traffic was busy. The vehicles in the lane to his left had stopped but the
traffic in his lane was flowing and there was space in front of his vehicle.

[9]           
Mr. Ali said a blue car “zoomed” in front of him. There was no time
for evasive action but he slammed on his brakes. He did not hear a horn or
anything else before the impact. He hit the car on its right side. The car spun
and hit a street sign and an electrical box on Sangster.

[10]       
Mr. Hussan said the plaintiff was driving along 8^th
Avenue towards McBride Avenue when a car sped through the intersection ahead of
them. The plaintiff’s van hit the car, which spun around and hit the electrical
box in the northwest corner of the intersection. Mr. Hussan said the
middle lane of traffic to their left was backed up from McBride Avenue. There
was a large van in the lane to their left. There was a gap in that lane by the
Justice Institute exit. Mr. Hussan is familiar with that exit as he taught
his niece how to drive in that parking lot.

[11]       
Ravinder Bhullar was a passenger in the van to Mr. Ali’s left. He
described it as a nice clear day between 4:00 and 5:00 p.m. Mr. Bhullar’s
employee was driving and had stopped because he could not proceed into the left
lane ahead. Traffic in the curb lane to the right was flowing. Mr. Bhullar
testified a BMW car “zoomed” in front of them towards the curb lane. He was
looking straight ahead and heard a bang. He did not see the BMW before it left
the parking lot to the left.

[12]       
Alice Yang was driving behind the plaintiff. She estimated her speed at
50 to 60 kilometres per hour. She saw a black BMW stopped on the south side of
the street at the Justice Institute. The black BMW went straight across 8^th
Avenue in front of the van. Ms. Yang could not tell if it stopped halfway
across 8^th Avenue. The van hit the BMW. It spun around and ended up
at the electrical box on Sangster. Ms. Yang had to get to work but gave
her business card to the driver of the van. He seemed shocked and upset but not
aggressively angry.

[13]       
The defendant, Laura Glover, worked at the Justice Institute. On the day
of the accident Ms. Glover left the Justice Institute parking lot by the
north exit onto 8^th Avenue. It was rush hour and the traffic flow
was heavy on 8^th Avenue. The traffic to her left cleared and ahead
of her there was a gap in the middle southwest lane when a vehicle stopped. Ms. Glover
moved forward and looked up to hill to the northeast. She felt she had fairly
clear vision and could see no traffic coming down the hill so she continued
through the intersection.

[14]       
When Ms. Glover was nearly clear of the intersection she saw a
vehicle rapidly approaching to the right rear of her car. She may have stepped
on the gas at that point. The oncoming vehicle hit her and she spun around, hit
a stop sign and the electrical box on the corner of Sangster Place and 8^th
Avenue and came to a stop.

[15]       
Ms. Glover thought the vehicle that was stopped in the middle
southwest lane was there for quite a while when she started across. She did not
feel her view of the southwest curb lane was obstructed as she had a fairly
clear view of that traffic coming down the hill. A man from the other car came
over to her after the accident and said “what the fuck were you doing?” or
words to that effect. He seemed angry but she did not know if it was the driver
of the other vehicle.

[16]       
Ms. Glover acknowledged the directional arrows at the northbound
Justice Institute exit indicate either a left or right turn. She was not aware
if going straight across to Sangster Place was illegal because she had taken
that route so many times, but agreed her route straight across 8^th
Avenue was contrary to the directional arrows. Ms. Glover did not think going
straight across 8^th Avenue was more dangerous than turning left
blindly into the far curb lane. She preferred to go straight across 8^th
Avenue because she thought it was safer. Ms. Glover received a violation
ticket after the accident for proceeding illegally through the intersection.

[17]       
Ms. Glover agreed vehicles proceeding along 8^th Avenue
would have the right of way and she would have to yield to them as she was
crossing the street. She did not think the vehicles on 8^th Avenue in
the southwest middle lane obstructed her view of vehicles in the curb lane
coming down the hill. She agreed the most cautious way to proceed across 8^th
Avenue would have been to stop and inch forward. She did not recall if she
stopped after leaving the parking lot but thought she slowed at the middle of
the intersection about halfway across to check traffic coming from the hill to
the east.

Liability for the First Accident

[18]       
The facts surrounding the First Accident are not complex or disputed.
All of the witnesses gave their evidence in a straightforward and credible
fashion. Liability turns on an application of the law to the facts.

[19]       
The plaintiff has the burden of proving the defendant was negligent. The
defendant has the burden of proving contributory negligence by the plaintiff.

[20]       
The plaintiff submits Ms. Glover is 100% liable for the First
Accident. Counsel referred to several sections of the Motor Vehicle Act,
R.S.B.C. 1996, c. 318 in support of his position:

Obeying traffic controls

125      Unless otherwise directed by a peace officer or a
person authorized by a peace officer to direct traffic, every driver of a
vehicle and every pedestrian must obey the instructions of an applicable
traffic control device.

Obedience to traffic control devices

161      Despite anything in this Act, if on or over a
highway there is

(a) one or more traffic control devices indicating the
direction vehicles must proceed, a person must not drive a vehicle other than
in the direction indicated,

(b) a traffic control device indicating that a certain
vehicle movement is prohibited, a person must not drive a vehicle in a movement
prohibited by that sign,

(c) one or more traffic control
devices indicating that use, access or egress is regulated or restricted on the
designated use highway, a person must not drive or operate a vehicle on the
designated use highway except as authorized by a regulation under section 209.1
or a bylaw or a resolution of the council of a municipality under section
124.2,

[21]       
Both counsel acknowledged that a contravention of a section of the Motor
Vehicle Act does not automatically give rise to liability, but it is
evidence of negligence: Karran v. Anderson, 2009 BCSC 1105.

[22]       
Both counsel also referred to Ryan v. Victoria (City), [1999] 1
S.C.R. 201 where Justice Major, for the Court, said:

[28] Conduct is
negligent if it creates an objectively unreasonable risk of harm. To avoid
liability, a person must exercise the standard of care that would be expected
of an ordinary, reasonable and prudent person in the same circumstances. The
measure of what is reasonable depends on the facts of each case, including the
likelihood of a known or foreseeable harm, the gravity of that harm, and the
burden or cost which would be incurred to prevent the injury. In addition, one
may look to external indicators of reasonable conduct, such as custom, industry
practice, and statutory or regulatory standards.

[23]       
Counsel for the plaintiff noted that Ms. Glover agreed vehicles
travelling southwest on 8^th Avenue would have the right of way at
the Sangster Place intersection and correspondingly she had the obligation to
yield to them. Ms. Glover also agreed she had to proceed across 8^th
Avenue with caution and that the risks of crossing 8^th Avenue were
greater during rush hour. She concurred with counsel’s suggestion that the most
cautious way of crossing 8^th Avenue would have been to stop and inch
forward to ensure there were no vehicles approaching in the southwest curb lane,
but she did not recall stopping or slowing down before crossing into the
southwest curb lane.

[24]       
Counsel for the defendant Ms. Glover maintains the plaintiff is at
least 20% responsible for the accident because if the plaintiff had been
travelling “just a little bit slower” Ms. Glover would have cleared the
intersection without a collision. Instead, the plaintiff’s vehicle struck the
rear right corner of Ms. Glover’s vehicle. Counsel maintains the
plaintiff’s speed was more than what a reasonable and prudent person would be
driving in the circumstances. He had a choice whether to slow down as he
travelled along 8^th Avenue in rush hour traffic. The burden or cost
on the plaintiff to slow down was negligible and involved no risk. The
defendant had a difficult turn to make through busy traffic coming in two
directions, and had no obvious options. She made the maneuver she thought to be
the safest and most prudent in the circumstances.

[25]       
The evidence clearly establishes that Ms. Glover crossed a busy
street against the traffic control markings at the exit to the Justice
Institute which indicated either a left or a right turn. She looked to her
right and saw a gap in the middle lane created by a stopped vehicle, which I
find was the van Mr. Bhullar was riding in as a passenger. Ms. Glover
proceeded across 8^th Avenue to access Sangster Place. She thought it
was safe to go straight across but did not stop in front of the van in the
middle lane to assess what was coming down the hill. Mr. Ali and Mr. Bhullar
both said Ms. Glover’s vehicle “zoomed” across in front of them. This is
consistent with her admitted failure to stop halfway across the intersection to
assess oncoming traffic in the southwest curb lane. Even if Ms. Glover had
been attempting a legal left hand turn she would have been obliged to enter the
middle southwest lane and then pause and assess the situation of oncoming
southwest curb lane traffic rather than sweeping in a wide left turn arc across
8^th Avenue directly to the curb lane. Ms. Glover committed an
infraction of the Motor Vehicle Act which, in the circumstances before
me, constituted negligence because she did not take reasonable care in the
circumstances.

[26]       
I find the defendant has not proven contributory negligence by the
plaintiff on a balance of probabilities. Mr. Ali was travelling at or
slightly above the posted speed limit but he had no obligation to stop or yield
at Sangster Place. The most he could expect to confront him there was a car
legally turning left from the Justice Institute parking lot to travel into the
middle southwest lane southwest and then attempting to merge into the curb
lane. Mr. Ali’s speed did not cause the accident. If Ms. Glover had
stopped halfway across 8^th Avenue to assess traffic coming from her
right she would have seen the oncoming traffic and avoided the accident.

The Second Accident

[27]       
The Second Accident occurred on the afternoon of Sunday, April 24, 2011.
Mr. Ali and Mrs. Rai were both driving westbound on 64^th
Avenue near King George Highway. Mr. Ali was in the middle lane. Mrs. Rai
was in the curb lane. Their vehicles made contact with each other while they
were roughly parallel to each other.

[28]       
Mr. Ali left a soccer tournament at a park in Surrey at 146^th
Street and 58^th Avenue around 1:30 with his son. He intended to drop
his son at home and then proceed to referee a soccer game at 4:00. While Mr. Ali
may have consumed pain medication the night before the accident, he said he
felt no side effects from it that might affect his ability to drive.

[29]       
Mr. Ali drove from the park along 146^th Street to 64^th
Avenue. He turned left onto 64^th Avenue, which has two westbound
lanes. He stayed in the middle lane. Mr. Ali intended to drive along 64^th
Avenue to Highway 91 and take the Alex Fraser Bridge onto 6^th Avenue.

[30]       
The roads were wet and it was raining. Westbound traffic on 64^th
Avenue was not very busy. Mr. Ali was travelling “maybe” 50 km/h as he
approached the intersection of 64^th Avenue and King George Highway.
The light ahead of him was green. There were vehicles facing him waiting to
turn left onto King George Highway. In his rear view mirror, Mr. Ali noticed
a vehicle behind him in the curb lane. It came up quickly and hit his van. The
impact caused a jolt and a large bang. Mr. Ali had no time to take evasive
action. The other car’s front left fender struck Mr. Ali’s front right
fender. He braked and stopped before the intersection and the other vehicle
went through the intersection.

[31]       
Mr. Ali stopped his vehicle, checked on his son and then they
stepped out of the van. He noticed the front bumper of his van had come off and
was at the back of the van. He was shocked and scared. Two men came to see if
he was okay and then they went to check on the occupants of the other vehicle.

[32]       
Mr. Ali recalled the police came to the scene about five or ten
minutes later. He had a brief conversation with the officer and told her the
route he was taking home. He did not receive a copy of the police report. The
two men came back, said they saw what had happened and offered him a ride home.
His vehicle was not driveable and he accepted the offer. Mr. Ali removed
soccer balls and cones from the back of his van to take home with him. The
younger of the two men said he recognized Mr. Al from a soccer game but Mr. Ali
did not recognize him.

[33]       
The ride to Mr. Ali’s home took about 20 minutes. Mr. Ali
thought they took 64^th Avenue to Highway 91 and then went over the
Alex Fraser Bridge.

[34]       
On cross-examination, Mr. Ali agreed he said at examination for
discovery that he heard a bang and saw his bumper flying off, rather than
actually seeing the impact between the two vehicles. He maintained the other
vehicle was going faster than his but did not know how fast he was going
because he did not look down at his speedometer. Mr. Ali did not agree
with counsel for Mrs. Rai’s repeated assertions that a more direct route
home for him would have been the Pattullo Bridge and that he intended to turn
right on King George Highway to get to the Pattullo Bridge. He agreed that
while his neck was sore from the First Accident he could turn his head to do
shoulder checks, albeit with some difficulty.

[35]       
Delvin Corrigal witnessed the accident. He was in the front passenger
seat of a Ford Explorer Sport Trac teaching Cameron Power how to drive. The
Ford was facing east on 64^th, towards the accident scene, waiting in
the left turn lane for King George Highway. Traffic coming west was fairly
light.

[36]       
Mr. Corrigal was watching westbound traffic, waiting for it to
clear or for the light to change so he could instruct Mr. Power on when it
was safe to turn left. He noticed a van in the oncoming middle lane and a car
behind it in the curb lane, coming alongside the van. It appeared the car was
going faster than the van.

[37]       
Mr. Corrigal saw the car veer to its right and then to its left. As
it veered to its left, it crashed into the front passenger side of the van.
From the time Mr. Corrigal first saw the van to the time of impact, the
van did not leave its lane of travel. After impact the front bumper came off
the van and antifreeze began leaking out of it. The van stopped and the car
continued through the intersection. He did not see the van attempting to turn
right or signalling to turn right.

[38]       
Mr. Corrigal told Mr. Power to complete the left turn and pull
over at a bus stop. Mr. Power crossed the street to the car and Mr. Corrigal
walked back to the van where Mr. Ali and his son were standing outside. Mr. Corrigal
told Mr. Ali he had witnessed the accident. Mr. Ali seemed a bit
shaken and started to dial his phone. Police arrived within about five minutes.
Mr. Corrigal never spoke to the driver of the car. He identified himself
to police as a witness. The officer took his information but did not take a
statement from him.

[39]       
Mr. Corrigal offered Mr. Ali and his son a ride home. He
helped them remove soccer equipment from the back of the van. Mr. Corrigal
has no involvement in the soccer community and did not recognize Mr. Ali.
On the drive to New Westminster Mr. Power said he recognized Mr. Ali
and they talked about a soccer league. Mr. Ali gave them directions to his
home and gave them $20 for gas. Mr. Corrigal thought they took the
Pattullo Bridge route to New Westminster but he was not sure. He had no contact
with Mr. Ali after the accident but spoke to ICBC a few months later.

[40]       
On cross-examination, Mr. Corrigal agreed he did not mean to
suggest the car was speeding when the accident occurred, just that it was going
faster than the van. He agreed Mr. Ali seemed to be in a rush to get to
Burnaby to a soccer game. During the drive they briefly discussed the accident.
He confirmed he did not tell the police how the accident occurred and nobody
from the police followed up with him. There was no indication the van was
changing lanes.

[41]       
Cameron Power described witnessing the collision with Mr. Corrigal
in the passenger seat. He testified the van never left the centre lane but the
car left the curb lane and hit the van. After the impact Mr. Power went to
the van to see if the occupants were okay, then went over to the car. He helped
open the passenger door. The driver, Mrs. Rai, was worried about the
elderly passenger. He gave them his name and phone number as a witness. When
police arrived he spoke briefly to the female officer. He said he witnessed the
accident and provided her with contact information. He did not provide a written
statement.

[42]       
Mr. Power recognized Mr. Ali from a soccer game the former had
refereed. Mr. Corrigal drove them all to New Westminster. Mr. Power
only had a learner’s licence and could not have multiple passengers. He
mentioned to Mr. Ali that he had refereed Mr. Ali’s team once. Mr. Power
had no contact with Mr. Ali after they dropped him off.

[43]       
On cross-examination, Mr. Power acknowledged providing a written
statement to ICBC in which he said he was not driving when he witnessed the
accident and that it occurred at rush hour. He did not say in the statement
that he had recognized the driver of the van as he did not feel it was
necessary or important. Mr. Power acknowledged he gave another statement
in July 2014 to an ICBC investigator. In that statement he said he was not
driving the vehicle when he witnessed the accident.

[44]       
Counsel for the plaintiff was not aware Mr. Power had given this
second statement because defence counsel for Mrs. Rai did not include it
or a description of it in the defendant’s list of documents. I permitted
counsel for Mrs. Rai as plaintiff, Ms. Sidhu, to cross-examine on the
second statement, notwithstanding it had not been disclosed. Overall, it
revealed substantial differences between Mr. Power’s evidence on direct
examination and his statements to the ICBC adjuster and investigator.

[45]       
Mrs. Rai lived on 67B Avenue near 148^th Street in Surrey
and worked at 64^th Avenue and 144^th Street. On the day of
the accident she left her home with her mother, en route to a funeral in Delta.
The roads were wet from rain earlier in the day and it was a bit drizzly at the
time of the accident. Mrs. Rai proceeded along 67B Avenue, turned right on
148^th Street, then turned right again onto 64^th Avenue.
She was in the right, or curb lane, and did not change lanes prior to the
accident. She was driving a 2004 Chevy Cavalier which was regularly maintained.
There was no fixed time for arrival at the funeral as it began at 2:00 p.m. and
went to 4:00 p.m.

[46]       
Mrs. Rai said there was an uphill stretch on 64^th Avenue
westbound as one approaches King George Highway, first at 142^nd
Street and then a bigger hill at 138^th Street. She described her
speed in the area as slow but her foot was on the gas to maintain the speed up
the hill. She estimated she was travelling 56 to 57 km/h in the five or ten
seconds before the collision. It is a 60 km/h speed zone. The traffic was not
heavy. There was a car ahead of her but it was crossing the intersection with
King George Highway at the time of the collision.

[47]       
The light at King George Highway was green for westbound traffic. Mrs. Rai
was watching the light because if she maintained her speed and it went yellow
she would have to slow down. She had her foot on the gas, both hands on the
wheel and no visual or audio distractions. She had no intention of turning left
or right on King George Highway as her planned route was west on 64^th
to Highway 91.

[48]       
When Mrs. Rai was one car length away from the intersection with
King George Highway she felt, but did not see, a hit on the driver’s side of
her car. Her vehicle moved to the right a bit because of the hit and she
corrected course and went straight through the green light and pulled over on
the west side of the intersection. Mrs. Rai said she was in shock. Her
knee hit the dash and her mother was also in shock. The driver’s side door
would not open. She called 911. A young man came over to Mrs. Rai’s car
and wrote his name, Cameron, and his phone number down on the car’s manual. Mrs. Rai
said Cameron told her the car beside her was trying to make a right turn.

[49]       
Police arrived on the scene and Mrs. Rai introduced Cameron to the
police officer and told her he had witnessed the accident. She also told the
officer Cameron told her the other person hit her as she was travelling
straight. Mrs. Rai did not speak to any other witnesses. After about 40 to
50 minutes at the scene she went to the hospital with her mother in an
ambulance.

[50]       
When Mrs. Rai received a letter from ICBC attributing the accident
entirely to her she was upset and tried to contact Cameron. She left him
several messages to contact ICBC but did not hear back from him. Her car was a
write-off.

[51]       
On cross-examination, Mrs. Rai agreed she did not see Mr. Ali’s
vehicle before the impact. She did not know what kind of vehicle it was and
never saw any vehicles on her left or ahead of her with a turn signal on. She
denied passing people to her left. Mrs. Rai said Cameron told her he was
sitting beside the driver in his vehicle. She told the police this as well, but
agreed she had not previously mentioned that Cameron told her he was a
passenger.

[52]       
Mrs. Rai said she checked her speedometer when she got up the hill
onto the flat before the accident, but acknowledged that at examination for
discovery she said the last time she checked her speed was when she crossed 144^th
Avenue, some blocks before the accident. The speed limit was 60 or 70 km/h in
the area and she was travelling about 60 km/h before the collision. Mrs. Rai
denied the suggestion of counsel for Mr. Ali that she started to make a
right turn onto King George Highway and then swerved to her left, causing the
collision.

[53]       
Constable Andrea Poitras of the Surrey RCMP was dispatched to the scene
of the accident. She had no independent recollection of it. Based on the
electronic synopsis in her police file she was dispatched at 13:37 hours to 64^th
Avenue and King George Highway. She arrived at 13:43 and cleared the scene at
15:00. It was raining, but the file does not indicate how hard. Cst. Poitras
spoke to both drivers involved. It struck the constable as odd that the driver
of the van, Mr. Ali, was going down 64^th Avenue to Highway 91
rather than turning right on King George Highway and taking the Pattullo Bridge
to his home in New Westminster.

[54]       
Cst. Poitras spoke to two males at the scene, Corrigal and Power. On her
electronic synopsis she recorded that both told her they were on 64^th
facing east, waiting to turn left on King George Highway, when a van swerved
into the car without looking.

[55]       
On cross-examination, Cst. Poitras said her handwritten notes contained
nothing about how the accident occurred, only the names of the drivers,
witnesses and vehicles involved. She did not take photos at the scene or
prepare a sketch of where the vehicles were located. Her electronic synopsis
was prepared three hours after she cleared the scene of the accident. It was
prepared based on her handwritten notes and her recollection of what had
occurred at the scene. Another form, entitled MV 6020, was generated but it was
unclear who authored it. The MV 6020 was coded to indicate that Mr. Ali
had failed to signal, but the constable’s electronic synopsis does not refer to
this and Mrs. Rai never told her Mr. Ali failed to signal. This is
consistent with Mrs. Rai’s evidence that she did not see how the accident
occurred.

[56]       
Cst. Poitras agreed the electronic synopsis and the MV 6020 were
different in some respects in terms of which was vehicle #1 and whether a male
or female was driving. She agreed the synopsis is a “living document” which
could have been edited after she logged off the system. The synopsis is a
summary of the circumstances as far as she can remember, with no witness
statements. Neither witnesses nor drivers reviewed it for accuracy.

Liability for the Second Accident

[57]       
The evidence of the two drivers sheds little, if any, light on how the
collision occurred. Mrs. Rai did not see the vehicle that hit her. Mr. Ali
saw a vehicle speeding up beside him but his evidence that he saw the impact is
somewhat speculative.

[58]       
The two independent witnesses, Mr. Power and Mr. Corrigal, are
the only ones who actually saw what occurred. As I noted earlier, Mr. Power
admitted to giving statements to ICBC which stood in stark contradiction to his
testimony that he saw the car swerve into the van. No statement was taken from
him by police at the accident scene. The version of the accident Mrs. Rai
attributes to Mr. Power at the scene is hearsay. As a result, I find I can
place no weight on Mr. Power’s in court account of what he saw because,
bluntly put, his evidence as a whole boiled down to a confused, unreliable
mess.

[59]       
Mr. Corrigal on the other hand was not shaken on cross-examination.
He maintained that the car swerved to its right and then into the van to its
left, whereas the van never left its lane. Mr. Corrigal was not confronted
with any allegedly contradictory statements that the van caused the accident
because it turned right from the left lane, striking Mrs. Rai’s car.

[60]       
Cst. Poitras had no independent memory of the accident. The notes she
took at the scene contained no details beyond names and vehicles. The synopsis
she created several hours later was done from notes and memory. The other form
generated by the RCMP, the MV 6020, was not entirely consistent with the
synopsis. Both the synopsis and the MV 6020 were open to editing by someone
other than Cst. Poitras.

[61]       
Counsel for Mrs. Rai maintains the accident was caused by Mr. Ali
when he realized too late that he wanted to turn right on King George Highway
and swerved into Mrs. Rai. Counsel repeatedly questioned the wisdom of Mr. Ali’s
proposed route to New Westminster along Highway 91 instead of via the Pattullo
Bridge, but called no evidence to demonstrate why the latter would be a more
logical, faster or attractive option for him.

[62]       
Counsel for Mr. Ali submits Mrs. Rai was going faster than she
admitted and either touched the curb to her right and overcorrected to her left
or lost traction because of her speed and the wet road.

[63]       
I find Mr. Corrigal’s evidence persuasive on the mechanics of “who
struck whom”. He was teaching Mr. Power how to drive. He was carefully
observing oncoming traffic to determine when it would be safe for Mr. Power
to turn. He saw Mrs. Rai’s car swerve to its right and then to its left,
striking Mr. Ali’s van. Mrs. Rai continued through the intersection
while Mr. Ali came to a stop.

[64]       
Mr. Corrigal’s observations are consistent with Mrs. Rai
coming up beside Mr. Ali at a greater speed than Mr. Ali was travelling,
which confirms what Mr. Ali observed in his rear view mirror just prior to
impact. This sequence is consistent with the fact that the force of the
accident tore the bumper off Mr. Ali’s van, which was larger and heavier
than Mrs. Rai’s vehicle.

[65]       
Having concluded that Mrs. Rai struck Mr. Ali, I must go on to
consider if her conduct was negligent.

[66]       
The evidence leads me to conclude on a balance of probabilities that Mrs. Rai
was travelling faster than she believed or admitted on a wet road. She was
focussed on the green light ahead of her, cognizant it might turn to yellow,
and was driving up a slight grade with her foot on the gas pedal. I find the
accident occurred as a result of her speed on a wet road causing her car to
waver in its path of travel and come into contact with Mr. Ali’s van. I
find Mrs. Rai was the negligent party.

Damages

The Plaintiff, Mr. Ali

[67]       
Mr. Ali is now 50 years of age. He married Raveena in 1989. They
have a teenaged son and a daughter in her early twenties. They live in a house
in New Westminster. The lower level of the house is rented out to tenants.

[68]       
Mr. Ali was born and raised in Fiji. He is a practicing Muslim. He
tries to pray five times a day and he is observant of religious events such as
Ramadan.

[69]       
In Fiji Mr. Ali achieved the equivalent of grade 12 and was good at
math. He studied bookkeeping and basic engineering and worked in a factory
helping a machinist. Mr. Ali secured work as an apprentice in a print
shop. He worked there as a helper for three years, then was promoted to running
a press. He lost that job but after a few weeks found a bookkeeping job.

[70]       
In 1989, Mr. Ali was approved to come to Canada. When he arrived he
applied to sponsor his wife and she arrived in Canada in 1991.

[71]       
Mr. Ali quickly found work in Canada as a pressman’s helper. It was
physically demanding work which included loading large paper from skids, adding
ink to the machines and cleaning them. After four years, he was promoted to
pressman when another pressman was injured. He was laid off after eight months
when the previous pressman came back to work. Mr. Ali travelled a bit then
found a job at Richmond Custom Bindery. He started working there on August 29, 1994
as a helper.

[72]       
From the time Mr. Ali was hired at Richmond Custom Bindery until
2003 he worked the night shift from 3:00 p.m. to 1:00 a.m. He held other jobs
during the day, including working for his brother, who is an electrician, and
working as a bus boy at a restaurant his father managed. In 2003, other
journeyman book binders left Richmond Custom Bindery and he was promoted. He
also obtained his journeyman lithographic tradesman certification, by virtue of
his previous work experience in Fiji and six months of apprenticeship.

The Plaintiff’s Duties at Richmond Custom Bindery
before the Accidents

[73]       
Richmond Custom Bindery is owned by Gay McCoan. The company provides
specialty book binding services to printing companies. Mr. Ali is the
production supervisor. He does all the estimating, machining and supervising of
employees. Ms. McCoan does the final bidding on jobs but relies on Mr. Ali’s
estimates. There are between 5 and 20 other workers, depending on the size of
the jobs underway.

[74]       
The first step for the company is to furnish a quote for a job. The
quote involves a timeline for the printing company looking to have a product
bound. The printing company sends the material to the bindery in skids. The
skids can weigh up to 2,000 pounds and stand up to three or four feet high. The
skid is moved with a pallet jack from the delivery bay into the shop so work
can commence. The stacks of paper are lifted from the skid, shuffled and then
jogged into the guillotine to be clamped and cut. The more sheets that are fed
in, the faster the job will be completed.

[75]       
Counsel for the plaintiff played a video showing Mr. Ali operating
the guillotine by loading 28 by 40 inch stacks of paper, airing the stacks out
by fanning them, and jogging the stacks into the machine to the registration
mark which ensures uniformity in cut sizes. Another video showed the process of
lifting stacks of cut paper into the multi binder and collating them. Mr. Ali
had to bend over at the waist as the multi binder is fairly low, perhaps two or
three feet off the ground.

[76]       
Pages have to be shuffled and aired out at every stage, from arrival
through to binding, to get rid of static. After binding, the bundles of pages
are assembled into a book or calendar or other product and then bound or hole
punched. Once that is complete the items are boxed and sent out of the shop.

[77]       
Prior to the First Accident the plaintiff’s job was very physical. He
did everything from moving skids through loading and cutting, loading and
binding and hole punching. He also ran the machines and did maintenance on
them. He had to lift heavy things and bend down. As an example of the weight
involved, Mr. Ali testified the dyes on the hole punching machine weigh
between 40 and 60 pounds and have to be changed depending on the job.

[78]       
While book binding has slowed down, the company has expanded to other
products, such as calendars. The job is seasonal. February through April is
busy, then it is slow until July but busy from then to Christmas.

[79]       
The plaintiff earns $26.31 per hour and his 2012 income tax return
reflected earnings from employment of $55,000. He is always paid for a 40-hour
week but during slow season his overtime bank is drawn on to top up his
paycheque and when it is busy he adds to his overtime bank.

[80]       
Mrs. McCoan testified about the physical nature of the plaintiff’s
job and the steps in custom book binding. The business is extremely time
sensitive and the company reputation is that it meets tight deadlines. Mrs. McCoan
relies on the plaintiff heavily for the success and operation of the bindery.

[81]       
Mrs. McCoan committed to keeping the plaintiff on an 80-hour pay
period every two weeks when she took over the company, regardless of the hours
he actually works. The plaintiff is the only employee who gets banked hours.
His banked hours are debited to keep his paycheques at a constant rate.

[82]       
Mrs. McCoan supplied copies of her records which indicate the
plaintiff’s overtime bank has dropped year by year since his accidents. At the
end of 2011 the plaintiff had 220.5 overtime hours banked. At the end of 2013
he had only 64 overtime hours left in his bank and even fewer into 2014 when
she testified at trial. Because the heavy work has shifted away from the
plaintiff, there is not a lot of opportunity for him to continue to accrue
overtime. At some point his bank will go into the negative and the current pay
situation will become unworkable.

[83]       
Mrs. McCoan has not discussed the plaintiff’s future with the
bindery as she finds it very difficult. She turned away work occasionally if he
was unable to come in or had a doctor’s appointment.

The Plaintiff’s Leisure Activities Before the
Accidents

[84]       
The plaintiff stopped playing competitive soccer in 2008 to coach his
daughter’s team but he still played casually on Sundays for some time after
that. He also referees soccer, becoming certified in 2009 by the BC Soccer
Association. It can be physically demanding, depending on the competitiveness
of the league. He engaged in other activities, including attending the gym to
lift weights. The plaintiff’s friend, Mr. Hussan, said prior to the First
Accident the plaintiff was an agile tough guy they could count on physically,
the “last man down”.

[85]       
Mr. Ali and his family used to go camping prior to the accidents
and take family road trips. He did most of the driving. He was responsible for
some maintenance around the house, both inside and out, as well as laundry and
some cooking or cleaning when his wife was at work. Their laundry room is on
the bottom floor of the house and he would carry laundry down from the top
floor. Outside work included pressure washing, gutter cleaning, mowing the lawn
and trimming trees. He would paint and do minor repairs to the tenanted suite
and would clean up after tenants when they moved out.

[86]       
Mr. Ali is involved with the Burnaby branch of the BC Muslim
Association. He used to help at functions by cleaning up banquet halls, cooking
for fundraisers or weddings and sometimes he did yard work. The cooking
involved hefting large pots of food around. He attends mosque up to three times
a week and daily during Ramadan. At the mosque he used to help with putting
away tables and chairs and rolling out mats to accommodate Friday prayers as
well as cleaning the washrooms in the mosque and the wudu (purification area).

[87]       
The process of praying involves bowing forward, kneeling down and bowing
on the ground five times. Prior to the accident the plaintiff had no difficulty
with praying or with sitting on a mat during lectures by the imam.

[88]       
The plaintiff’s wife Raveena Ali confirmed her husband’s pre-accident
active lifestyle and volunteer activities. He was often the one who encouraged
her to go to the gym and work out.

The Plaintiff’s Pre-Accident Health

[89]       
Mr. Ali was diagnosed with a thyroid issue in 2009 as well as sleep
apnea. The thyroid issue caused him to gain weight and have difficulty
sleeping. He was prescribed thyroid medication and lost about 30 pounds over
the course of a year. He also began wearing a sleep mask at night to alleviate
the apnea.

[90]       
Occasionally, Mr. Ali would have aches and pains in his back from
doing heavy work on the guillotine or multi binder all day. He would see his
chiropractor for treatment and the discomfort did not prevent him from working.
In 2008, he chopped off part of his index finger but it was successfully
reattached.

[91]       
In October 2010, Mr. Ali was in a car accident while trying to turn
left at an intersection. He was shaken up a bit and had rib and back pain. He
saw the chiropractor twice and the pain went away after about three days. Mr. Ali
said the injuries had resolved completely by the time of the First Accident and
did not restrict his work or leisure activities.

The Plaintiff’s Condition after the First Accident

[92]       
Immediately after the First Accident the plaintiff felt shocked and
cold. He stayed home from his son’s soccer practice that evening and went to
bed. He did not feel comfortable in bed and could not sleep. Mr. Ali went
to work the next day because they were very busy and things would come to a
standstill without him. He was very sore and moved slowly “like a zombie”. He
oversaw the other employees rather than doing his usual duties. He took extra
strength Tylenol and Advil every two hours then went home and slept.

[93]       
On the Friday after the accident Mr. Ali went to the doctor’s
office. His usual doctor, Dr. Mudaliar, was busy so he saw Dr. Parhar.
The doctor prescribed Tylenol 3 but Mr. Ali could not take it for
very long because of constipation, stomach problems and drowsiness. He did not
referee any soccer that weekend or do any of his regular chores. He saw the
chiropractor, Dr. Klassen, and those treatments helped a bit.

[94]       
The following week at work the plaintiff continued to supervise rather
than actively work the machines in the bindery. He did not referee any games
for three to four weeks after the accident. He saw Dr. Mudaliar a week
after the accident complaining of pain in his back and chest. He received
prescriptions for Celebrex and Tramacet. They kept him more comfortable at
night. During the day he took over the counter painkillers.

[95]       
The plaintiff had pain from his neck and back as well as headaches for
the second month after the First Accident. He started refereeing games again
but was not running with the play as before. By the time of the Second Accident
on April 24 he was still experiencing pain. He had not returned to regular
duties at work or at home and was not exercising. He took prescription pain
medication at the end of the day on work days only.

[96]       
Mrs. Ali said the plaintiff was shaken up after the October 2010
accident but he went to work and did all the normal activities he had done
before. In contrast, after the First Accident he was shocked and stuttering. He
appeared uncomfortable. He complained of a headache as well as a sore neck,
back and ribs. He went to his chiropractor frequently but it was not helping
him. He took regular Tylenol and extra strength Advil almost every day, which
was not like him. Mrs. Ali rubbed his back and encouraged him to soak in
bath salts and use heat pads.

The Plaintiff’s Condition after the Second Accident

[97]       
Immediately after the Second Accident the plaintiff felt shocked and
tense. He had to referee a soccer game in South Burnaby and went to the field
but another referee took over from him and he went home. He felt tense for a
few days after the accident and went back to how he felt after the First
Accident. He went to work the day after the Second Accident. He was not lifting
or cutting or doing any of those heavy duties. He continued to see Dr. Klassen
for chiropractic treatments until June 2011, after which time there was a
substantial break in treatments.

[98]       
Mr. Ali took prescription medication after the Second Accident at
night. He attributed any improvements in his condition to the fact that he was
not lifting things at work or exercising or sitting on the floor while praying
at the mosque.

[99]       
Mrs. Ali said her husband’s back pain was worse after the Second
Accident and he went to his chiropractor for treatment. In the spring/summer of
2011 he said his neck was improving but his back was not.

[100]     In the
summer of 2011, the plaintiff tried to do 10 or 15 minutes of heavy lifting at
work but it aggravated the pain and he had to stop. He was not doing heavier
chores around the house, just some dishes and a bit of cooking.

[101]     In July
2011, the plaintiff’s father became very ill. He was diagnosed with pancreatic
cancer in September. The plaintiff was so busy focussing on his father that he
put his own problems aside. The plaintiff’s father was in and out of hospital
over the ensuing months and passed away on January 7, 2012.

[102]     While the
plaintiff was caring for his father he did not take any treatments for his
injuries. He took painkillers and wore heat patches. His back hurt the most.
His neck hurt off and on. He was still on light duties at work. He reduced his
refereeing. The plaintiff took two weeks off prior to his father’s passing.
Upon his return to work in January 2012 there was a lot of work to do so he
pushed himself hard and got worse neck and back pain, as bad as after the First
Accident.

[103]     In
February 2012, Dr. Mudaliar prescribed the plaintiff Toradol. The
plaintiff resumed visiting his chiropractor and his overall condition improved.
The chiropractor told him to do stretching at home but that aggravated his back
pain. Every time he tried to strengthen his back or core he had to stop because
of the pain, or because he would occasionally feel dizzy or develop a headache.
Heavy lifting and exercise aggravated the pain. He had to sit on a chair in the
mosque with the elderly people, rather than praying and sitting on a mat, which
embarrassed him.

[104]     In February
2013, the plaintiff saw Dr. O’Connor for an independent medical
examination. The doctor recommended some exercises and the plaintiff worked
with a kinesiologist for nine months. The kinesiologist recommended swimming.
It helped the plaintiff’s neck but not his back. He did the exercises she
recommended at home and still tries to do them. He has also tried massage
therapy, which provides some short term help.

[105]     The
plaintiff said he worked less overtime during 2013 as compared to before the
First Accident. He set up the machines and let other employees run them. He
continued to referee soccer in 2013 but only half the number of games per week
as before the First Accident. If he pushes himself he aggravates his injuries.
He still coaches his son’s team. He does fewer things around the house. Instead
of carrying the laundry basket downstairs he puts laundry in a garbage bag and
rolls it down the stairs. He does light volunteer duties at the mosque. He
continues to sit in a chair for services unless he has to line up for prayers.

[106]     In July
2014, the plaintiff testified his neck pain and headaches had largely resolved
but he continued to suffer back pain. His back is aggravated if he does heavy
lifting for a long time or exercise. If he sleeps more than five or six hours
he wakes up in pain. Most days it is mild blunt pain but sometimes it feels
like someone is poking a knife into his back and it takes a few days to calm
down. He will take Tramacet when that pain hits, otherwise he takes over the
counter medication and relies on massage, pain patches or sprays.

[107]     Mrs. Ali
testified she tries to prevent the plaintiff from doing heavy lifting, such as
carrying bags after a shopping trip. He cannot sit for very long and usually
leaves social events before her. He cannot sit through a movie without a lot of
pain. He cannot drive for long distances so Mrs. Ali and her daughter take
turns. When the plaintiff comes home from work he will relax on the couch to
rest his back rather than the chores he used to do. His energy level has
decreased since the accident and his frustration level is higher. They are less
physically intimate since the accidents. The plaintiff is reluctant to go on
plane trips but Mrs. Ali is hoping there is some way to accommodate him.

The Plaintiff’s Abilities at Work after the Accidents

[108]     At work,
the plaintiff still supervises and sets up the machines but rarely does any of
the heavier activities he did before the accidents. When he does help out with
those jobs he takes pain killers but encounters back pain and stays home for a
few days. He still works very little overtime compared to before the accidents.
As of the end of the trial, his overtime bank was overdrawn 97 hours.

[109]     Prior to
the First Accident, Mrs. McCoan said the plaintiff was a fast-paced
energetic worker. She recalls the day after the First Accident. The plaintiff
was banged around a bit and sore. They devised a plan to work around his pain
for a few days but the plaintiff did not improve. She saw him leaning on a
table and having difficulty around the shop. Mrs. McCoan moved some of her
supervisory and training duties on to the plaintiff. He did not run the
machines as much after the accident. He would set them up and find a worker to
run them which was not the case before the First Accident. He complained about
his back and an occasional headache while working.

[110]     Mrs. McCoan
said the plaintiff was a diligent and careful employee. The plaintiff worked
some overtime into the summer of 2011 but as his functions changed and he was
not getting better it dwindled. She will hire someone to do the heavy lifting
if it comes to that but she is paying the plaintiff to run the shop and would
be paying extra to someone to do the heavy lifting. The plaintiff’s knowledge
of the big machines is of value to the company. Mrs. McCoan has no plans
to end his employment but he is not getting any better. She has not scheduled a
discussion with him and would prefer to avoid ending his employment by
accommodating him as best she can.

The Medical Evidence

Dr. Russell O-Connor, Physiatrist

[111]     Dr. O’Connor
performed independent medical examinations of the plaintiff in February 2013
and March 2014. In the report authored after the February 2013 examination, Dr. O’Connor
found the plaintiff had neck pain related to musculoligamentous strain. The
pain was originally left-sided but moved to the right starting in March 2012,
according to the plaintiff’s chiropractor’s records. Dr. O’Connor’s
opinion was the plaintiff’s left-sided neck pain seemed to largely improve or
resolve by June 2011, according to the plaintiff’s chiropractor and doctor. Dr. O’Connor
did not know why the symptoms switched from left to right.

[112]     Dr. O’Connor
was aware the plaintiff experienced occasional back pain before the First
Accident but his attendance at the chiropractor for treatment was intermittent,
at most once or twice per year. The plaintiff had some degenerative changes and
spondylosis in his neck and low back which were aggravated by the accidents.
The doctor’s opinion was that the accidents aggravated this pre-existing
problem. In June 2011, the plaintiff’s discomfort settled close to his previous
level and has bothered him off and on ever since. On cross-examination, Dr. O’Connor
clarified his opinion that the First Accident caused the aggravation of the
existing problems and the Second Accident perpetuated the aggravation but did
not introduce a lot of new symptoms.

[113]     The
plaintiff also complained of headaches. They were initially left-sided and
directly related to the motor vehicle accident. The right-sided headaches could
be from a new strain at work or to some degenerative changes within his neck at
the C2, C3 and C4 facet joints. Dr. O’Connor recommended strength and
conditioning of the neck to get it moving again.

[114]     Finally,
the plaintiff complained of disturbed sleep due to neck and back stiffness and
discomfort.

[115]     Dr. O’Connor
examined the plaintiff again on March 31, 2014. The plaintiff had been working
on strength and conditioning but Dr. O’Connor felt his conditioning had
worsened since the last examination. His opinion about neck, low back,
headaches and disturbed sleep caused by the two accidents had not changed. The
plaintiff was unlikely to improve or dramatically change. Dr. O’Connor
agreed with a functional capacity evaluation that outlined the plaintiff is
capable of light or moderate level activity with accommodations for reduced
mobility and strength in his back and reduced tolerance for awkward positions
and repetitive bending or twisting of his back and neck as a result of the
trouble he has in those areas. He could develop compression of the nerves going
down his legs. Dr. O’Connor recommended the plaintiff be diligent with
regular back strengthening activities.

[116]     On
cross-examination, counsel referred Dr. O’Connor to some of the materials
provided by the plaintiff’s chiropractor which indicated in March 2012 the pain
“comes and goes” and was very mild, did not prevent him from sleeping and felt
he was rapidly getting better. The doctor agreed that for that timeframe in
March 2012 the plaintiff seemed to be having less pain. He was not aware the
plaintiff’s father passed away in early 2012 or that he had been caring for his
father since about July 2011. It explained the gap in medical information for
the June 2011 to early 2012 timeframe but did not change Dr. O’Connor’s
opinion.

Dr. Terence O’Farrell – the defence expert

[117]     Dr. Terence
O’Farrell is an orthopedic surgeon whose expert opinion was tendered by the
defence. He has been an orthopedic surgeon for 33 years and treats patients
with both surgical and non-surgical options. He has considerable experience
treating patients with injuries from motor vehicle accidents. He examined the
plaintiff on December 4, 2013.

[118]     Dr. O’Farrell
said the plaintiff outlined the pain he felt in his back on lateral rotation,
flexion and extension but there was little in the way of objective findings.
The doctor did note MRI findings that the plaintiff had severe degenerative
changes at the L4-5 level with an associated sacralization partial of L5. The
cervical spine was essentially normal with minor degenerative changes.

[119]     In Dr. O’Farrell’s
opinion, the back pain predated the injury and may have been somewhat aggravated
by it but likely would have progressed to the stage the plaintiff was at
without the accident. Dr. O’Farrell’s opinion was that the plaintiff was
not a surgical candidate and should be able to continue with his normal work
duties. In a reply to Dr. O’Connor’s report, Dr. O’Farrell disagreed
that the accident put the plaintiff at increased risk of re-injury or low back
pain, or caused more frequent or intense pain but agreed he needed to work on
an active conditioning program.

[120]     On
cross-examination, Dr. O’Farrell agreed he noted in his report that the
plaintiff denied back pain before the First Accident, despite the fact that the
plaintiff told him about consulting a chiropractor about his back before the
First Accident. He did not know the plaintiff saw a chiropractor only twice in
2010. The doctor admitted this would have been relevant in assessing the
plaintiff’s pre-accident state. He did not recall asking the plaintiff if the
chiropractic treatments were successful. He did not recall asking whether the
prior back complaints had any effect on the plaintiff’s function at work or in
recreational or domestic activities. The doctor did not inquire whether the
plaintiff took any pain medication for his prior back complaints or whether he
was being accommodated at work after the First Accident. He thought he spent 30
minutes with the plaintiff but was going by memory as he did not note the start
and end time. He agreed professional standards and guidelines indicated that
should be done in the course of an independent medical examination. He did not
have a note about the plaintiff’s physical activity level prior to the accident
apart from coaching soccer and he did not have much detail in his report about
activities after the accident. He was not aware the plaintiff’s physical duties
had been reduced at work or that his job had transitioned to a more supervisory
one.

Dr. Gurdeep Parhar

[121]     Dr. Parhar
did not testify but he authored a report about the plaintiff’s visits to his
clinic. The plaintiff attended Dr. Parhar’s clinic on February 18, 2011
and saw Dr. Toma. The plaintiff complained of pain in his neck, shoulder,
right-sided chest and lower back. He was advised to go to physiotherapy and
given a prescription for Tylenol 3. On March 9 the plaintiff was back complaining
of pain in his upper back. He was prescribed Tramacet, a narcotic analgesic.

[122]     Dr. Parhar
did not actually see the plaintiff until February 17, 2013, at which time the
plaintiff complained of neck pain in the right and left regions and pain in the
lower back, travelling into his left leg, as well as headaches and difficulty
sleeping. The plaintiff had decreased range of motion in his cervical spine and
decreased range of motion in his thoracic and lumbar. Between February 24, 2013
and July 28, 2013 the plaintiff visited the clinic six times and continued to
complain of neck pain, mid-back pain and lower back and shoulder pain as well
as headaches, mood swings and difficulty staying asleep. He advanced similar
complaints at visits in the fall of 2013.

[123]     Imaging of
the plaintiff’s spine in March 2013 showed cervical spondylosis
(osteoarthritic/degenerative changes) mildly at C2-3 and lumbar spondylosis
with central and foraminal narrowing at L4-5. The cervical spine showed no
abnormalities.

[124]     Dr. Parhar’s
opinion was that the accidents aggravated pre-existing osteoarthritis of the cervical
and lumbar spine and caused musculoligamentous injuries of the cervical,
thoracic and lumbar spine, left and right shoulder muscle strain, right-sided
chest contusion, muscle tension headaches, sleep disturbance and depressed
mood. While it was encouraging that the plaintiff’s chest pain, mid back pain
and shoulder pain decreased in chronicity, his back did not improve and would
continue to deteriorate.

Other Expert Evidence

Mr. Russell McNeil – occupational therapist

[125]     The
plaintiff tendered Mr. McNeil to give expert opinion as an occupational
therapist with a specialization in the area of functional capacity evaluations
and cost of care assessments. Counsel for the defendants took substantial issue
with his qualifications, training and methods, in particular his use of the FAB
(Functional Assessment of Biomechanics) system.

[126]     Mr. McNeil
developed FAB, a three dimensional motion capture system, to assist him with
functional capacity evaluations. He markets and sells it to others but I did
not find that disqualified him from giving evidence.

[127]    
Mr. McNeil administered physical tests to the plaintiff over the
course of the day with sensors attached to various parts of the plaintiff’s
body to record his movements and range of motion. He found the plaintiff had
restrictions in his strength and stamina and would require accommodations to do
the work of a book binder at a competitive pace:

In summary, Mr. Ali has
demonstrated the capacity to perform activity that requires light to modified
medium level strength. He demonstrated restrictions in his capacity for
activity requiring static vertical reaching as well as restrictions in his
capacity to perform static horizontal reaching. There were restrictions in his
capacity to perform below waist work requiring bending, stooping, crouching,
and kneeling. There were measured restrictions in his upper extremity as well
as restrictions in his capacity to perform two handed carrying and two handed
lifting. There were restrictions in his tolerance for static standing. Overall
there were restrictions in his mobility and restrictions in his activity
tolerance.

[128]     Mr. McNeil
recommended a variety of items to assist the plaintiff at home and work, including
a special wedge pillow, a special chair and anti-fatigue mat, ongoing active
therapies and assistance with yard and indoor work.

Credibility and Reliability

[129]     The
plaintiff was generally a credible witness. His account of how he felt after
both accidents was corroborated in part by his wife and by his employer, Mrs. McCoan.
Some of the plaintiff’s evidence was not entirely reliable, however, as his
long term memory did not appear to be very clear. This became apparent when Mr. Dorst
tried to cross-examine him on matters related to his chiropractic treatments
prior to the First Accident.

[130]     Similarly,
the plaintiff’s evidence about his neck injury was unreliable when examined
against the accounts he gave of it to his chiropractor. Mrs. Ali observed
her husband’s neck was substantially improved by the summer of 2011. The
plaintiff felt it was improved. There was then a gap in medical records until
early 2012, at which point the plaintiff’s neck pain travelled from the left to
the right side, without any apparent reason.

[131]     I found Mrs. Ali
and Mrs. McCoan were both fair and balanced witnesses. Mrs. Ali, of
course, is the plaintiff’s wife and concerned for him but I did not find her to
exaggerate her husband’s condition. Similarly, Mrs. McCoan depends heavily
on the plaintiff but her evidence about his abilities at work before and after
the accidents corroborated the plaintiff’s evidence and Mr. McNeil’s
observations of the plaintiff’s abilities and limitations during the assessment
he conducted.

[132]     Both Dr. O’Connor
and Dr. O’Farrell are well qualified in their respective areas of
specialty. Where their opinions conflict, I prefer that of Dr. O’Connor in
terms of causation and prognosis. Dr. O’Farrell did not spend much time
examining the plaintiff and there were several errors or inconsistencies in his
report, for example concerning pre-accident back pain and treatments for it,
that reduce the weight I place on his opinion.

[133]     Finally,
as noted earlier in these reasons, counsel for the defendants took substantial
issue with Mr. McNeil’s opinion and methodology of examination. I found
his evidence of the plaintiff’s physical limitations to be corroborative of,
and corroborated by, the observations of others and as a result it carries some
persuasive weight on the issue of the plaintiff’s capacity to perform physical
tasks at work.

[134]     On the
whole of the evidence, I find the plaintiff suffered back and neck injuries as
a result of the two accidents at issue before me along with headaches and sleep
issues. I cannot find the injuries divisible as between the two accidents. The
plaintiff was not fully recovered from his injuries after the First Accident
when the Second Accident occurred. This is reflected in Dr. O’Connor’s
opinion that the First Accident aggravated the plaintiff’s underlying
condition, he was improving by the time of the Second Accident, and that
accident did not cause additional injuries, simply a re-aggravation.

[135]     I find the
plaintiff’s neck pain had substantially cleared up by the summer of 2011. The
aggravation in 2012 which caused the pain to manifest in the right side instead
of the left is unexplained and I cannot find it was as a result of the
accidents. The plaintiff continues to suffer from back pain to this day. I find
it limits his work and recreational activities. I will have more to say about
it under the individual heads of damages.

Non-Pecuniary Damages

[136]    
The purpose of non-pecuniary damages is to compensate a plaintiff for
pain, suffering, loss of enjoyment of life and loss of amenities. The award
should be fair and reasonable to both parties. The considerations which apply
in assessing an award for non-pecuniary damages are well known and were
summarized in Stapley v. Hejslet, 2006 BCCA 34 at para. 46 as
follows:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering;

(f) loss or impairment of life;

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

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

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

[137]     The
plaintiff is now 50 years of age. He has a chronic back injury and suffered from
a neck injury for some months after the accidents in addition to headaches and
disturbed sleep. The back injury continues to affects his social life. He does
not do as much volunteer work as he once did. He has to sit in a chair to pray
rather than join his contemporaries and use prayer mats. He cannot sit through
a movie or drive long distances. He cannot referee soccer at the high level he
once did and he no longer plays recreational soccer due to the impact of the
accidents. His back injury has affected his mood and his wife feels it has
affected their social and intimate life. The plaintiff does not contribute to
work within the home as he once did, nor does he feel able to perform yard work
or work that arises from the tenanted basement. Overall, the plaintiff’s back
injury has permanently altered all aspects of his life.

[138]     The
plaintiff seeks an award of $90,000. Counsel’s submission is based on cases
involving chronic soft tissue injuries to the neck, shoulders and back such as MacKenzie
v. Rogalasky, 2011 BCSC 54, Davidge v. Fairholm, 2014 BCSC 1948, Kuras
v. Repo, 2014 BCSC 1634 and MacAulay v. Field, 2014 BCSC 937. Awards
in those cases ranged from $75,000 to $100,000.

[139]     The
defendants point to Mr. Ali’s pre-existing back condition and maintain
that his ongoing difficulties stem from deconditioning and taking passive
therapies such as massage rather than physiotherapy. Mr. Dorst’s
submission was that if I found Mr. Ali had substantially recovered by June
2011 an award of $10,000 for non-pecuniary damages was appropriate. In the
alternative, if the injuries were found to be of a longer duration, an award of
$35,000 would be appropriate.

[140]     As noted
above, while I found the plaintiff’s neck condition had improved by the summer
of 2011 and there was no evidence as to why it was aggravated in 2012 and
transferred to the opposite side, his back injury continues to affect him. He
was a formerly active, engaged and giving member of the community whose quality
of life and self worth has been affected by his injury. Balancing all of the
factors, I find a fair and reasonable award for non-pecuniary damages is
$60,000.

Past Income Loss

[141]     Compensation
for past loss of earning capacity is to be based on what the plaintiff would
have, not could have, earned but for the injury that was sustained: Rowe v.
Bobell Express Ltd., 2005 BCCA 141 at para. 30; M.B. v. British
Columbia, 2003 SCC 53 at para. 49. The burden of proof of actual past
events is a balance of probabilities.

[142]     The
plaintiff and his employer had an agreement that he would consistently be paid
for a 40-hour week. Any overtime would be banked and calculated at time and a
half. The banked time was used to maintain the plaintiff’s consistent level of
pay. After the accident, the plaintiff’s role evolved away from one involving
heavy lifting and operating the machinery to a supervisory and training role.
As a result, he has accrued fewer and fewer overtime hours. He has used his
vacation time to top up hours he missed as a result of his injuries and has not
taken a vacation since the First Accident. Counsel calculates this to be a
gross loss of $12,076.29.

[143]     The
defendants submit the plaintiff has suffered no wage loss because he has an
accommodating employer. The plaintiff’s payroll records show a marked drop in
overtime after his father passed away, nearly a year after the Second Accident.
The plaintiff’s use of vacation time or banked overtime to attend to various
therapies instead of taking vacation time does not, in the defendants’
submission, constitute wage loss.

[144]     Ascertaining
the plaintiff’s actual loss is more difficult in this case than in one where
someone worked, and was paid for, a static number of hours. Taking into account
the fact that the plaintiff took time off work when his father passed away, which
affected the number of hours he worked, I find a fair and reasonable amount for
past wage loss to be $8,000.

Loss of Future Earning Capacity

[145]     A claim
for loss of future earning capacity engages two questions: 1) has the
plaintiff’s earning capacity been impaired by his or her injuries; and, if so
2) what compensation should be awarded for the resulting financial harm that
will accrue over time. The assessment of loss must be based on the evidence,
and not an application of a purely mathematical calculation. The appropriate
means of assessment will vary from case to case: Brown v. Golaiy (1985),
26 B.C.L.R. (3d) 353 (S.C.); Pallos v. Insurance Corp. of British Columbia
(1995), 100 B.C.L.R. (2d) 260 (C.A.); Pett v. Pett, 2009 BCCA 232.

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

[147]     Insofar as
possible, the plaintiff should be put in the position he or she would have been
in but for the injuries caused by the defendant’s negligence: Lines v. W
& D Logging Co. Ltd., 2009 BCCA 106 at para. 185. The essential
task is to compare the likely future of the plaintiff’s working life if the
accident had not happened with the plaintiff’s likely future working life after
the accident: Gregory v. Insurance Corporation of British Columbia, 2011
BCCA 144 at para. 32.

[148]     There are
two approaches to assessment of loss of future earning capacity: the “earnings
approach” from Pallos, and the “capital asset approach” in Brown.
The “earnings approach” will generally be more useful when the loss is easily
measurable: Perren v. Lalari, 2010 BCCA 140 at para. 32. Where the
loss “is not measurable in a pecuniary way”, the “capital asset” approach is
more appropriate: Perren at para. 12.

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

[150]     The
capital asset approach involves considering factors such as i) whether the
plaintiff has been rendered less capable overall of earning income from all
types of employment; ii) whether the plaintiff is less marketable or attractive
as a potential employee; iii) whether the plaintiff has lost the ability to
take advantage of all job opportunities that might otherwise have been open;
and iv) whether the plaintiff is less valuable to herself as a person capable
of earning income in a competitive labour market: Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353 (S.C.); Gilbert at para. 233; Morgan
v. Galbraith, 2013 BCCA 305 at paras. 53 & 56.

[151]     Though the
capital asset approach is not a “mathematical calculation”, the trial judge
must still explain the factual basis of the award: Morgan at para. 56.

[152]    
The principles that apply in assessing loss of future earning capacity
were summarized by Low J.A. in Reilly v. Lynn, 2003 BCCA 49:

[101] The relevant principles may
be briefly summarized. The standard of proof in relation to future events is
simple probability, not the balance of probabilities, and hypothetical events
are to be given weight according to their relative likelihood: Athey v.
Leonati, [1996] 3 S.C.R. 458 at para. 27. A plaintiff is entitled to
compensation for real and substantial possibilities of loss, which are to be quantified
by estimating the chance of the loss occurring: Athey v. Leonati, supra,
at para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135
(C.A.). The valuation of the loss of earning capacity may involve a comparison
of what the plaintiff would probably have earned but for the accident with what
he will probably earn in his injured condition: Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the end of the
inquiry; the overall fairness and reasonableness of the award must be
considered: Rosvold v. Dunlop, (2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1
at para. 11; Ryder v. Paquette, [1995] B.C.J. No. 644 (C.A.)
(Q.L.). Moreover, the task of the Court is to assess the losses, not to
calculate them mathematically: Mulholland (Guardian ad litem of) v. Riley
Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Finally, since the course of
future events is unknown, allowance must be made for the contingency that the
assumptions upon which the award is based may prove to be wrong: Milina v.
Bartsch, supra, at 79.

[153]     The
plaintiff submits a number of probable outcomes in the future arise from his
injuries:

1.       He has depleted his overtime bank and will likely
continue to run it at a deficit. At some point Mrs. McCoan may become
unwilling to subsidize his income and will begin paying him less;

2.       Mrs. McCoan is in her sixties and nearing the
usual age of retirement. If she retires, a new owner or manager is unlikely to
continue to accommodate the plaintiff to the extent he is now being accommodated
and may let him go;

3.       Mrs. McCoan may decide to cut the plaintiff’s
wages in light of his reduced duties;

4.       Another employee might learn the skill and gain the
experience the plaintiff has, without his physical limitations, and could
replace him as production supervisor;

5.       The bookbinding industry could collapse and Mr. Ali
would struggle to find work in other industries with a reduced physical
capacity for heavier work.

[154]     Conversely,
the plaintiff submits the only risk to the defendant is if an award for loss of
earning capacity is made and Mr. Ali is accommodated for the rest of his
career. The plaintiff submits Mr. Ali should not bear the risk that the
accommodation will continue. Counsel for the plaintiff relies on Davidge.
Madam Justice Griffin assessed the loss of earning capacity of a plaintiff who
went back to work in the same capacity as before the accident. The plaintiff
did not suffer a decrease in earnings, but Griffin J. accepted he suffered
chronic pain and exerted extra effort to overcome it and continue working. It
was questionable whether he could continue to do so until retirement and he
would be vulnerable if he lost his job as his experience and skills were only
suitable for labour intensive jobs. Griffin J. awarded the equivalent of two
years’ earnings for loss of future earning capacity.

[155]     The
plaintiff also relies on Werner v. Rocks, [1994] B.C.J. No. 767,
where a plaintiff who worked as a renal technologist before the accident and
continued to do the job after the accident as a result of an accommodating
employer, received roughly two years income for loss of future earning capacity.

[156]     The
defendants submit nothing has been proven but if it has, any award should be
heavily discounted. As I understand the defendants’ position, it is that the
plaintiff is not at risk of having his hours or wages cut and he will be
accommodated indefinitely.

[157]     I am
satisfied the plaintiff has proven there is a real and substantial possibility
of loss of income earning capacity in the future. He has an accommodating
employer but she may retire and sell or reduce his wage to one commensurate
with the hours he is working on set up and supervising and not allow him to
draw on a dwindling overtime bank. If he loses his job he is less valuable to
himself and potential employers because he is not fully able to do physical
work.

[158]     As noted
earlier in these reasons, there are two ways of measuring loss of capacity: the
earnings approach and the capital asset approach. The parties differ on how to
assess the loss. The plaintiff advocates the capital asset approach while the
defendants seek what is essentially a mathematical calculation of his
historical earnings and projecting into the future.

[159]     The
plaintiff’s future loss deals with hypotheticals, not absolutes, and I find the
capital asset approach to be more apt to his particular circumstances. The
plaintiff earned $55,000 in 2012, the most recent tax return filed at trial. He
seeks three years of income for his potential loss. This is out of step with
the authorities upon which he relies. In both Werner and Davidge
the trial judges awarded roughly two years of income for individuals with
accommodating employers who nevertheless proved a real and substantial
possibility of loss. I see no reason to depart from such an assessment and,
accordingly, I award the plaintiff two years of income for a total of $110,000
under this head of damages.

Special Damages

[160]     The
plaintiff has spent $4,001.55 to date in purchasing items recommended for him
by Mr. McNeil or his kinesiologist, taking different therapies to
alleviate his conditions or hiring people to remove rubbish and make repairs
around his home. He has purchased a stability ball and foam roller as
recommended by the kinesiologist.

[161]     The
defendants do not take issue with past special damages to June 2011 but take
the position that after that time, passive treatments such as chiropractic and
massage therapy were not medically necessary or reasonable alternatives to the
fitness and conditioning recommendations of Dr. O’Connor.

[162]     I find the
plaintiff undertook massage therapy and chiropractic therapy in good faith and
not against the instructions of any medical practitioners. He is entitled to
special damages to the date of trial in the amount expended.

Cost of Future Care

[163]     The
purpose of an award for the cost of future care is to restore the injured
person, as best as possible with a monetary award, to the position he would
have been in “had the accident not occurred”: Gignac v. Insurance
Corporation of British Columbia, 2012 BCCA 351 at para. 29. The claims
must be reasonable and supported by evidence: Milina v. Bartsch (1985),
49 B.C.L.R. (2d) 33 (S.C.) at 84.

[164]     The
plaintiff seeks $40,000 for the cost of future care, based on recommendations
for equipment and therapy he will use in the future as well as costs he will
incur from hiring people to do exterior work on his home or work associated
with the tenancy. I have already accounted for the plaintiff’s loss of ability
to do heavy exterior work on his home in the non-pecuniary award. The award for
future care will therefore reflect only those items the plaintiff will use and
that have been recommended by qualified individuals or are not opposed by the
defendants.

[165]     Mr. McNeil,
in his functional capacity report, recommended a number of expenditures for the
plaintiff and provided cost and frequency of replacement estimates. The
equipment was recommended by Mr. McNeil. The massage therapy and
physiotherapy were recommended by Dr. Parhar. Dr. O’Connor supported
active reconditioning therapy for the plaintiff.

[166]     The
plaintiff testified that he would avail himself of the following items or
treatments:

1.       foam back rest ($49.99 every three years)

2.       heating pad ($31.99 every three years)

3.       sit/stand chair ($410 every five years)

4.       anti-fatigue mat ($89 every two to three years)

5.       massage therapy ($720 per year)

6.       physiotherapy ($900 per year)

[167]     The
defendants oppose an award for passive treatments such as chiropractic or
massage because they are not medically necessary or reasonable alternatives to
the fitness and conditioning recommendations of Dr. O’Connor.

[168]     I am
satisfied that a sum of $1,750 will cover the cost of replacing items 1 through
4 over the next 15 years, when the plaintiff turns 65.

[169]     I am
satisfied the plaintiff should be awarded a modest amount for massage therapy
and physiotherapy, notwithstanding its short term benefits to him, and award
him $2,500. He has the equipment and training to undertake Dr. O’Connor’s
fitness and conditioning recommendations.

Summary

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

Costs

[171]    
Unless there are matters of which I am not aware, the plaintiff is
entitled to his costs at Scale B, with the exception of the increased costs
award made in relation to the delay occasioned by the defendants’ failure to
disclose the existence of the privileged document used to cross-examine Mr. Power.

“Duncan J.”

______________________________________

The
Honourable Madam Justice Duncan