IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151130

Docket: 13260

Registry:
Quesnel

Between:

David Preston

Plaintiff

And

Panagiotis (Peter)
Kontzamanis

Defendant

Before:
The Honourable Mr. Justice Parrett

Reasons for Judgment

INTRODUCTION

[1]            
This action arises from a motor vehicle collision that occurred on May
1, 2005 in Vancouver.  The plaintiff was driving a 1991 Toyota Tercel owned by
his daughter on 12th Avenue near its intersection with Nanaimo Street when it
was struck from behind by a vehicle driven by the defendant.

[2]            
In his statement of defence the defendant admits that he was negligent
and that his negligence caused the collision.

[3]            
At issue in this action is the extent and nature of any injuries
suffered by the plaintiff in the collision and the extent to which damage flows
from those injuries.

[4]            
The defence asserts that the plaintiff failed to mitigate damages he
suffered, that he suffered no past wage loss, and no loss of capacity.  The
defence further asserts that the plaintiff’s claim for the cost of future care
is problematic both because of the plaintiff’s failure to mitigate and because
of overriding credibility issues it says flow from the plaintiff’s evidence.

BACKGROUND

[5]            
Over the course of this trial 22 witnesses testified.  In addition seven
of these witnesses provided expert reports which were admitted under Rule 11-6
and the terms of a document agreement agreed to by the parties and filed as
Exhibit #1.

[6]            
The plaintiff, David Gary Preston, was born on August 1, 1959 and is 56
years of age.  On the day of the collision giving rise to this litigation he
was 45 years of age.

[7]            
the plaintiff from Grade 11 embarked on a career in the autobody
business.  He obtained an apprenticeship with Birks Autobody and attended
Okanagan College for training in that field.  He completed his apprenticeship
in 1981 and obtained his interprovincial autobody and painting certifications.

[8]            
The plaintiff worked in a number of autobody businesses and eventually
took on a management role with one of them before beginning his own autobody
businesss initially with a partner, David McLarry.

[9]            
This business was carried on by means of a corporation, Preston &
McLarry Ltd. and under the business name of New Technology Collision.  The
plaintiff bought out his partner’s interest in 1993 and since that time he and
his wife have been the sole shareholders of Preston & McLarry Ltd.

THE COLLISION

[10]        
The plaintiff had driven down from Quesnel to Vancouver in a pick-up
truck towing an enclosed trailer. The purpose of the trip was to help their
daughter move back after completing her year at the University of British
Columbia.

[11]        
When they work up in the morning they discovered that the truck and
trailer had been stolen.

[12]        
While making arrangements to get a rental vehicle to complete the move,
the plaintiff was driving his daughter’s 1991 Toyota Tercel.  The plaintiff was
stopped at a red light behind two other vehicles.  When the light changed the
first two vehicles started up and as the plaintiff went to start through the
light he was struck from behind by a white Chevrolet Astrovan driven by the
defendant.

[13]        
The defendant has admitted that his negligence caused the collision in
question.

SUBMISSIONS

[14]        
The plaintiff’s counsel submits that the plaintiff did not embellish or
exaggerate the nature or severity of his symptoms to his medical practitioners
and aside from some minor errors he is a credible witness.

[15]        
Despite his efforts to try various treatments he remains troubled by
chronic back pain more than eight years after the collision.

[16]        
The plaintiff it is submitted has suffered a major and continuing
disruption of his life and his enjoyment of it which is not in any sense caused
by pre-existing conditions or any failure on his part to mitigate his loss.

[17]        
The plaintiff submits that he has suffered a major disruption of his
capacity to work in the only profession he knows, one he began to pursue at the
age of 17.  This has resulted in both the loss of past income and his future
earning capacity.

[18]        
He also seeks compensation for the cost of future care and special
damages.

[19]        
The defendant submits that the plaintiff suffered soft tissue injuries
that were very modest to his cervical, thoracic and lumbar spine.  Those
injuries he submits have resolved.

[20]        
The defendant submits that there is no past wage loss, any increased
labour cost or any decreased income of any kind.

[21]        
The financial records they submit simply do not support any such losses.

[22]        
The defendant submits that there is no continuing disability arising
from the collision and that any continuing symptoms are a direct result of the
progression, development and evolution of the pre-accident degeneration of his
spine which has continued to progress.

[23]        
These issues the defence submit arise not from injuries arising from the
collision but from credibility issues within the plaintiff’s evidence.

[24]        
The defence relies on a failure to mitigate arising from the plaintiff’s
failure to follow the recommended weight loss and exercise program.

THE PLAINTIFF – SYMPTOMS AND INJURIES

[25]        
At the time of the accident the plaintiff was 45 years of age and he was
in very good health.

[26]        
The plaintiff had left school in Grade 11 and gone into the autobody
business where he has worked continuously until the date of trial.

[27]        
He and his wife own and operate an autobody business called New
Technology Collision and are the sole shareholders of Preston & McLarry
Ltd., which owns and operates that business.

[28]        
The plaintiff testified that he was unsure if he lost consciousness at
time of collision but was dazed and “didn’t know up from down for a little
while.”

[29]        
Mr. Preston went on to say that the collision left the vehicles
separated by about 10 feet and that although his back and neck hurt he was focused
on getting his daughter’s move completed.

[30]        
He testified that they left Vancouver about 9:30 to 10:00 pm that night
and drove back to Quesnel splitting the driving and arriving back home around
6:00 to 6:30 am the next day.

[31]        
After getting a little sleep he went to work and that afternoon made an
appointment with his family doctor.

[32]        
He described his symptoms as including:

a)    pain in the
middle of the back of his neck;

b)    pain in his
lower back 3 – 5 inches above his beltline and up his spine;

c)     he said
his neck felt like a sprain;

d)    he said his neck
pain was, at that time, constant not throbbing and that it was worse when he
rotated his neck to the left;

e)    he described
feeling like he had to rotate his whole body rather than turning his neck;

f)      he
described the pain in his back as throbbing like the pain was going in and out;

g)    he went on to
describe a tingling of his right leg that felt like his leg was falling asleep
from his hip to the top of his foot.

[33]        
Mr. Preston went on to describe his pain at trial as still persisting in
his lower back and periodically still experiencing the leg problem.

[34]        
After attending his family doctor and I.C.B.C., Mr. Preston returned to
his autobody shop and removed the bumper of his daughter’s car which had been
scraped and marked.  After the bumper was removed he discovered that the frame
rails had been crushed in approximately 2 inches and pushed up.

[35]        
Before the accident Mr. Preston testified that he did on average about
six hours of body work a day as well as attending to the administrative side of
his business.

[36]        
Mr. Preston testified that he can no longer do the heavier, more
physical, parts of his autobody work and has had to find others to do what he
had previously done.

[37]        
He described ordinary autobody work as being like a workout, including
stooping, stretching and heaving lifting.  He went on to describe the body movements
as requiring all kinds of rotation and at times, laying on your back or
twisting to reach into limited spaces.

[38]        
Over the years since the accident Mr. Preston described trying to
continue various aspects of his profession unsuccessfully and expressed the
view that he now can only do the lighter aspects of the job he did before
without difficulty.

[39]        
Mr. Preston described the heavier aspects of his profession:  twisting,
stretching and stooping as aggravating the pain in his back.  Over the years he
has described his use of various pain medications up to and including 20 to 30
injections of Toradel.

[40]        
He testified that although he has tried to return to the work he did
prior to the accident those efforts have been unsuccessful and he now does
mostly administrative work in his business.

[41]        
Mr. Preston prior to the accident was involved in car racing and owned
his own race car.  He described this as being an important part of his
recreational activities.

[42]        
The racing activities Mr. Preston enjoyed involved at its basic level
twisting and turning to get into the race car which he is no longer able to do.

[43]        
Many of Mr. Preston’s other recreational activities included outdoor
activities and sports which involved physical activities or exertion.  He has
testified that he is unable to participate and enjoy skiing, snowmobiling or
fishing activities that were a frequent activity prior to the accident.

THE NATURE, EXTENT AND DURATION OF THE INJURIES

[44]        
Mr. Preston has described his ongoing symptoms and limitations which he
asserts have significantly curtailed his ability to work in his chosen
profession as well as curtailing his recreational activities and his enjoyment
of life.

[45]        
The defendant takes the position that Mr. Preston has exaggerated his
injuries and their effect on him.  They assert that Mr. Preston has suffered no
long term injury or disability and that any such injury was modest and of
limited duration.  They further say that any continuing symptoms are the direct
result of the progression, development and evolution of pre-accident
degeneration of his spine.

[46]        
These issues the defence asserts are credibility issues that impact
directly Mr. Preston’s evidence and must be considered in addressing that
evidence.

[47]        
In order to establish that his ongoing symptoms were caused by the
accident, Mr. Preston, must prove on a balance of probabilities that, but for
the accident, he would not have suffered the injury or the symptoms and
limitations of which he complains.

[48]        
One of the most recent formulations of the test can be found in the
decision of the Supreme Court Canada in Resurface Corp. v. Hanke [2007]
1 S.C.R. 333, where the court reaffirmed the “but for” test articulated in Athey
v. Leonati [1996] 3 S.C.R. 458.  The test articulates the principle that
the plaintiff bears the burden of proving that but for the negligent act or
omission of the defendant, the injury would not have occurred.  At para. 23 of Resurface,
McLachlin, CJC. concluded that:

The “but for” test recognizes
that compensation for negligent conduct should only be made “where a
substantial connection between the injury and the defendant’s conduct” is
present.  It ensures that a defendant will not be held liable for the plaintiff’s
injuries where they “may very well be due to factors unconnected to the
defendant and not the fault of anyone”: Snell v. Farrell, at p. 327,
per Sopinka J.

[49]        
This test does not require the plaintiff to establish that the
defendant’s negligence was the sole cause of the injury.  The negligent party
must take his or her victim as they found him, and is liable even if there are
other causal factors, for which the defendant is not responsible.  Those other
factors may result in the victim’s losses being more severe than they would be
for the average person.  At the same time, the negligent party need not put the
victim in a better position than they would have been in, and need not
compensate the victim for the effects of a pre-existing condition that the victim
would have experienced in any event: Snell v. Farrell, [1990] 2 S.C.R.
311; Athey v. Leonati, [1996] 3 S.C.R. 458.

[50]        
The defendant submits that Mr. Preston’s evidence concerning the extent
and ongoing nature of his injuries should not be accepted because he was not a
forthright witness and there were several contradictions within his evidence
which they suggest undermines that evidence.

[51]        
The first of these they suggested was the fact that Mr. Preston believed
that he had a thoracic compression fracture “…although he was told by his
family doctor that he did not have a thoracic compression fracture,” and that
only on the fifth day of trial did he suddenly remember that he had been told
this.

[52]        
The defence asks, rhetorically, how does the plaintiff forget such good
news?

[53]        
I found Mr. Preston to be generally a credible and forthright witness,
who was struggling to cope with ongoing pain and limitations on his activities
that he did not fully understand or accept.

[54]        
Over the course of time from the accident in 2005 until this trial, he
tried to continue on at his professional activities while dealing with a
seemingly endless parade of doctors, massage therapists, occupational
therapists, physiotherapists, economists and other experts, including
orthopaedic surgeons, experts in the fields of physical and rehabilitation
medicine.

[55]        
Over the course of various medical assessments a number of x-rays, C.T.
scans and other types of imaging have resulted in a confusing series of reports
which appear to find in at least one case “…evidence of acute or healed
fracture…”  The contents of a report prepared by Dr. Hawk for I.C.B.C. dated
April 5, 2006, Exhibit #2 pg. 79 ff at pg. 85 refers to the earlier suspected
fracture (Exhibit #2 p. 0070) and concludes that subsequent radiographic
studies made it “clear” that there is no evidence “…to suggest a recent
fracture…”

[56]        
I simply do not accept given the apparent confusion in the medical
evidence that a lay person struggling to deal with the pain and limitations
should clearly separate in his mind the various opinions and apparently
conflicting findings.

MEDICAL EVIDENCE

[57]        
In his various reports Dr. J.J. Le Roux, a family doctor of considerable
experience describes his observations and medical findings dating back to his
first examination of Mr. Preston, days after the accident on May 1, 2005.

[58]        
Dr. Le Roux in his reports of August 5, 2008 and February 7, 2011 sets
out his clinical findings and his opinions.

[59]        
I note in passing Dr. Le Roux was the only doctor to examine the
plaintiff this close to the accident and his clinical records found in Exhibit
#2 record and support the clinical findings summarized in his reports.

[60]        
Dr. Le Roux’s report of February 7, 2011 sets out perhaps the most detail
his dealings with Mr. Preston his findings, his observations and his opinions.

[61]        
His initial contact with Mr. Preston after the accident and his findings
are as follows:

Mr. Preston suffered a motor
vehicle accident on May the 1^st of 2005.  He indicated that he was
driving a vehicle wearing a lap shoulder belt when he was rear-ended by another
vehicle.  He was in Vancouver at the time.  Following the accident he had to
help his daughter move furniture.  He did experience soreness of his back,
mid-back and left side of his neck with radiation into his left shoulder. 
There was also discomfort over the left trapezius muscle region and this all
became worse after he drove back from Vancouver to Quesnel.

[62]        
After setting out this initial history Dr. Le Roux set out the following
which includes his clinical findings:

He was assessed in Quesnel which found tenderness over his
left trapezius muscle with limited range of motion of his C-spine and
tenderness in his lower back area.  An x-ray was ordered.  X-ray that was
taken showed a questionable injury to the anterior body of the 11^th
thoracic vertebrae.  A CT scan was taken later on showed degenerative changes
to the L4 to S1 area with no disc lesions, no obvious T11 compression. He
had persistent lower back as well as neck discomfort.

 [Emphasis
added]

[63]        
Dr. Le Roux goes on to summarize his observations and dealings with Mr.
Preston over the years up to February 7, 2011.

Mr. Preston has had ongoing problems that have been bothering
him ever since his accident.  He was diagnosed with a chronic myofascial pain
syndrome that has unfortunately persisted causing problems for him.

Mr. Preston has been having difficulties due to the fact that
he has pain associated with lifting anything over 20lbs.  He experiences discomfort
when he twists and he is unable to do any work above his shoulders.  We have
also found that he fatigues quickly and as a result has had to resort to doing
non-laborious work at his body shop.  He mostly does estimations and errands at
his business.

Mr. Preston has been very limited in his ability to do any
sport or recreational activities.  He is capable of only walking and swimming. 
He finds that he is totally unable to do activities like skiing, race car driving,
fishing which he previously enjoyed.

Due to the fatigue that he
experiences at the end of the day he is less inclined to socialize and is
finding that him and his wife are at home far more than before.  He previously
would like to go out at functions and dance which he is now currently completely
incapable of doing.  His personal life is also being significantly affected by
his chronic pain.  He is finding that he is not sleeping well and that he just
needs to take two Advil and Gravol at night before going to bed.  His intimate
life has been limited due the discomfort that he has and the fatigue that he is
experiencing.

[64]        
Dr. Le Roux goes on to document various medication uses and various
assessment and treatment attempts.

Mr. Preston has been treated with many medications including
Toradol injections on a p.r.n basis, he uses Robaxacet, Ibuprofen, Tramacet,
Flexural and has also been on Arthrotec and has been on Robaxissal C in the
past.

He attended massage therapy as well as physiotherapy which
has been associated with a lot of discomfort for him.

Recent assessment showed him to have tenderness over the
lower lumbar area with tenderness over the muscles.  His lumbar spine showed
good flexion to 30cm from the ground, extensions of 30 degrees and a lateral
flexion left and right to his knees.  He had no cervical tenderness and that
part of his injury has resolved completely.

Follow-up CT scans that were taken of his cervical spine in
March of 2009 showed degeneration of his discs with significant advanced disc
narrowing at the C5 – C6 area with severe foraminal stenosis on the right.  He
also had a CT scan of his lumbar spine on the 16^th of December of
2009 which indicated significant disc space loss with boney spurring,
specifically at the L4 – L5 with possible impingement of the L4 nerve root also
as well as the L5 nerve root.

This gentleman was referred to
multiple rehabilitation exercises as per physiotherapy as well as massage
therapy.  He was assessed by an orthopedic surgeon, a report is available.  He
also had a functional capacity affiliation done on in 2006 which suggested that
he would be doing well with supervised exercise program for general body
strengthening.

[65]        
This portion of Dr. Le Roux’s report corresponds with and confirms many
of the details Mr. Preston provided in his evidence while providing the
backdrop of clinical findings of tenderness over the lumbar area.

[66]        
The report concludes with Dr. Le Roux’s assessment and opinion
concerning Mr. Preston’s commitment to pursuing recommended treatment
modalities before providing his diagnosis as of early 2011.

Mr. Preston has pursued all the suggested treatments with a
lot of enthusiasm.  He has been to the gymnasium and the pool to try to
strengthen himself.  He did use aqua exercises.  He also saw a chiropractor in
Prince George as well as received acupuncture as well as yoga during the
treatment period.

He more recently was treated with chronic pain medications
including Lyrica and Amitriptyline which unfortunately he could not tolerate.

Mr. Preston’s injury is chronic
in nature and has plateaued.  He therefore has not seemed to improve over the
past 24 months.  He does seem to have episodes of worsening of his discomfort
and certainly times that he is feeling better.  However he is generally
incapable of performing his social and professional duties as before.  He is
persisting in the workplace and is trying to make the most of his current
abilities. I do not foresee Mr. Preston to have surgery related to his medical
problem but I do not anticipate him to improve more than he has up until now. 
He will definitely benefit from future exercises including continued
strengthening of core muscles, back and abdominal muscles and to stay
exercising in the pool on a frequent basis.

[67]        
In his oral testimony Dr. Le Roux testified that he could not recall Mr.
Preston having similar symptoms prior to the accident.

[68]        
Later in his evidence Dr. Le Roux testified that he did not believe that
Mr. Preston’s symptoms would improve if he lost weight.  He went on to say that
in his view losing weight would not solve his problems and would not affect the
pain he is experiencing.

[69]        
Dr. M.B. Erlank also provided reports concerning Mr. Preston.

[70]        
Dr. Erlank came to Canada in April 2009 and met Mr. Preston for the
first time in August 2009, more than four years after the accident.

[71]        
While Dr. Erlank’s evidence is useful overall it is of relatively little
assistance on the issue of causation and the extent of the initial injuries.

[72]        
In a report dated December 6, 2010, Dr. Erlank summarized his dealings
with Mr. Preston on page 2 where he records Mr. Preston’s “ongoing complaint of
chronic back pain” in these word:

With regards to the prognosis of
Mr. Preston’s current condition.  Since I have known him, since August 2009, he
has had an ongoing complaint of chronic lower back pain.  He has had numerous
consultations with specialists including an orthopedic surgeon in April 2006 as
well as most recently the neurosurgeon in September 2009 and in February 2010. 
He also had a functional capacity evaluation in December 2006.  All of this has
shown me that his condition would be chronic.  He has underlying degenerative
changes to the thoracic and lumbar spine.  The opinion of the neurosurgeon Dr.
Mutat was that he is not for operative treatment and that conservative measures
should be undertaken currently.

[73]        
In the following paragraphs Dr. Erlank gives his view of Mr. Preston’s
future treatment as well confirming limitations found to exist by the
occupational therapist who assessed him in December 2006.

The future treatment would include analgesics,
anti-inflammatories and various modes of stretching and strengthening exercises
and treatment.  One of the main aspects of controlling the ongoing lower back
pain would be to prevent exacerbations and this will lead to the patient
avoiding many activities.  I will refer back to the report from Occupational
Therapist from December 2006.  On page 13 showing restrictions with regards
to back flexion and bilateral/lateral flexion which was 50% of the normal.  His
general body dexterity and mobility showed he would not have a tolerance for
prolonged or/and repetitive stooping.  His upper extremity function showed
that the tolerance for sustained above shoulder level reaching corrected in 2
minutes in duration limited by pain symptoms but he did not have any
limitations with regards to forward and downward reaching; so mainly above
level reaching.  His strength capacity overall demonstrated limited light and
some medium strength capacity.  Lastly with regards to sitting and standing he
did have decreased tolerance for sitting and standing but his walking tolerance
and gait pattern was normal. Assessment showed that as an auto body
repairman he would have difficulty meeting the full strength requirements to
perform his job.  The main difficulty would be with stooping and twisting
and this is due to the chronic lower back pain.

 [Emphasis
added]

[74]        
During his oral evidence and specifically during his cross-examination
Dr. Erlank acknowledged that a sensible exercise program and a loss of weight
could possibly lessen his pain but confirmed that, in his view, you could not
expect that it would definitely do so.

[75]        
Dr. G.H. Hirsch is a specialist in physical medicine and
rehabilitation.  Dr. Hirsch provided both a written report dated December 23,
2010 and was tendered for cross-examination.

[76]        
Dr. Hirsch begins to summarize his opinions on page 8 of his report
where he opines that:

Mr. Preston’s reported back pain is probably mechanical in
nature.  That term refers to pain typically exacerbated by activities that
stress or load the back. The onset and persistence of the mechanical low
back pain is, in my opinion, causally related to the subject motor vehicle
accident. This opinion is based on the fact the Mr. Preston had no
pre-existing low back symptoms and the absence of any confounding or
compounding factors on review of the forwarded post-motor vehicle accident
clinical records to account for the reported persistence of his low back
symptoms.

Regarding future management, Mr. Preston should carry out an
exercise program regularly.  This should consist of core truncal strengthening
exercises, truncal and hip girdle stretching exercises, and an appropriate
cardiovascular workout routine.

Mr. Preston should embark on a weight reducing diet.  He may
require the assistance of a dietician to be successful in this endeavour.

It is my opinion that Mr. Preston’s abrupt decline in
function and reported persistent vocational, social, and recreational activity
limitations are causally related to the subject motor vehicle accident. 
According to today’s assessment, it appears that his level of function has not
significantly changed since he underwent a Functional Capacity Evaluation in
the fall of 2006.

At present, I would consider Mr. Preston to be physically
capable of performing tasks which are of sedentary, light, and entrance medium
level physical demands with some limitations in place.  These limitations would
include low level activities or tasks requiring repetitive or sustained truncal
twisting motions, bending, or stooping.

It is my opinion that at present and in the foreseeable
future Mr .Preston will not be able to perform the full spectrum of his work as
an auto body technician.  He may be able to perform some of the physical
aspects of his job temporarily, but probably could not carry out these tasks on
a sustainable basis.  Fortunately, he owns and operates an auto body shop
and, therefore, is able to delegate the more physical strenuous work activities
to his employees.  At present, he continues to work 40 to 50 hours on average
per week, but his work reportedly is more-or-less limited to the administrative
and management aspects of his business.

 [Emphasis
added]

[77]        
Dr. Hirsch sets out his concluding opinion on page 10 of his report:

Given the clinical course to date, I would consider it
unlikely that Mr. Preston will make sufficient gains to allow him to perform
the full spectrum of his pre-motor vehicle accident occupation as an auto body
technician.  He probably will be able to manage some of the work specific tasks
which do not biomechanically stress his low back excessively.  It is my opinion
that he will probably not be gainfully employable in this capacity or a job of
similar physical demands.

Mr. Preston should be capable of
performing most domestic chores and some yard-related tasks.  However, he
probably will have to rely on a hired helper to carry out the more physically
taxing activities in and around his home.

[78]        
I have reviewed the Functional Capacity Evaluations conducted on the
plaintiff by Theresa Wong, an occupational therapist, on October 7, 2006, and
again on December 5, 2011.  Ms. Wong’s comprehensive reports are dated December
6, 2006 and January 13, 2012 respectively.

[79]        
Ms. Wong’s findings have been touched on in my summaries of the medical
evidence and are accurately summarized in the final paragraph on page 17 of her
second report:

Vocational Implications

According to the NOC, his pre-injury job of auto body
repairman (NOC# 7322) requires Medium strength capacity, other body positions,
and multiple limb coordination.  Based upon findings of functional testing, Mr.
Preston does not demonstrate the ability to meet the full demands of an auto
body repairman.  He did not demonstrate the ability to meet the critical
physical demands of this work (i.e. bending, twisting, lifting).

Mr. Preston meets the critical
physical demands of automotive body shop supervisor (NOC# 7216) that includes
sitting, standing, walking, and limited strength capacity.

[80]        
I accept generally the evidence of the plaintiff although, indeed, there
were some errors within that evidence.  I have already touched on the extent to
which the defence relied on the plaintiff’s statements that he had suffered “a
thoracic compression fracture”.

[81]        
The fact is the initial report indicated the possible presence of such a
fracture.  It was not until some four months passed that a scan seemed to dispel
that initial report.

[82]        
I am wholly unable to afford this evidence the significance the defence
urges upon the court.

[83]        
When viewed in the context of events as a whole, there were in fact
conflicting medical results.  To a layperson struggling to deal with pain and
disruption of his life as well as conflicting test results it is entirely
understandable that he would be confused or uncertain of the situation he was
facing.

[84]        
I am completely unable to conclude that the plaintiff as a witness lacked
credibility or attempted to deceive as the defence suggests.

[85]        
I found the plaintiff to be both candid and forthright in his evidence. 
I also found it less than startling that in a rigorous cross-examination
covering many details over a period of some eight years he got some things
wrong.  I found such errors to be largely inconsequential.

[86]        
I accept the evidence of Dr. Le Roux and Dr. Hirsch and conclude that
Mr. Preston has ongoing back problems that have persisted since his motor
vehicle collision in 2005.  He continues to suffer from chronic back pain which
limits him both in his employment activities and in his recreational pursuits.

[87]        
I accept Dr. Hirsch’s opinion and find that the onset and persistence of
the plaintiff’s mechanical low back pain is causally related to the motor
vehicle accident.

[88]        
I find that the limitations on his employment, social and recreational
activities have persisted to the date of trial, a period of 7 ½ years, and are
on a balance of probability likely to continue.

FAILURE TO MITIGATE

[89]        
The defence submits that Mr. Preston failed to mitigate his injuries by
combining and carrying on with a diet program and an increased and more
frequent exercise program.

[90]        
In paragraph 31 of their written submissions the defence summarizes the
evidence in these words:

31.       It is the position of
the Defence that Mr. Preston has failed to mitigate his injuries.  Drs. Le Roux
and Hirsch, and Dr. Hawk and Dr. Boyle all agree that a weight loss program
combined with a mix of exercises, core strengthening, etc., should be carried
out.  Dr. Hirsch was of the view that there was a small chance that this could
reduce his pain.  However, Dr. Erlank agreed that it was possible for some
improvement in Mr. Preston’s symptoms and functionality at work and at home was
possible if he did these things.  Dr. Le Roux felt it was possible that Mr.
Preston’s symptoms, ie., his pain could improve if he did all of these things.

[91]        
In my view, this submission seriously overstates the evidence before the
court.  In advancing this submission the defence takes the evidence of Dr.
Hirsch who “evaluated Mr. David Preston in my office … on December 23, 2010 …”
and recites his evidence together with that of Dr. Hawk and Dr. Boyle and
suggests that “they all agree that a weight loss program combined with a mix of
exercises, core strengthening, etc. should be carried out.”

[92]        
This statement is the starting point for the defence submission on
failure to mitigate.

[93]        
While technically accurate the submission ignores the actual evidence
given by the doctors in question.

[94]        
In referring to his recommendations concerning weight loss and exercise
on page 9 of his written report, Dr. Hirsch explained in his oral testimony at
some length that being overweight did not explain the plaintiff’s pain.  He
went on to testify that the correlation between getting into better physical
shape and pain was possible, not probable.  He went on to testify that such a
program would at most reduce his pain but would not eliminate it.

[95]        
When Dr. Hirsch was pressed by defence by putting the proposition to him
that with weight reduction there was a better chance of some reduction of pain,
Dr. Hirsch pointed to page 13 of his report and pointed out that Mr. Preston
has done a wide variety of different kinds of therapy that had been recommended
all with no significant improvement.

[96]        
He concluded that while there might be a reasonable chance of some
improvement in the level of pain, in his opinion, there was little chance of
improved function.

[97]        
This, in my view, accurately summarizes the opinion of Dr. Hirsch.  The
defence submission does not.

[98]        
Relying on the report of Dr. Hawk is itself problematic.  Dr. Hawk
despite the request of the plaintiff was not produced for cross-examination. 
While admitting the report I directed that the issue of the weight to be
afforded to it was to be addressed in argument.

[99]        
As but one example of the problems that arise from Dr. Hawk not being
produced for cross-examination, it is only necessary to refer to those portions
of Dr. Hawk’s report which deal with his apparent findings on range of motion.

[100]     When those
findings were put to Dr. Hirsch by defence counsel in his cross-examination,
Dr. Hirsch not only questioned what was recorded but severely criticized this
aspect of the report itself.

[101]    
The portion of Dr. Hawk’s opinion that dramatically differs from that of
either of the plaintiff’s family doctors, Dr. Le Roux and Dr. Erlank and that
of Dr. Hirsch is found on page 7 of his report where in a one sentence
paragraph he writes:

On the basis of his present
examination I believe that he has largely recovered from the soft tissue
injuries he sustained in the motor vehicle accident.

[102]     Despite
the fact that this opinion is expressed and directly bears on the central
contested issue in this litigation Dr. Hawk was not produced for cross-examination.

[103]     These
circumstances dictate that the opinion expressed be afforded little weight.

[104]     Dr. Hawk
saw the plaintiff on one occasion on April 5, 2006 at a time when his family
doctors had diagnosed him with chronic back pain.  Dr. Hawk’s conclusion is
distinctly different in almost every respect from the other doctors who had
assessed Mr. Preston.  This is particularly so when viewed from the perspective
of the treating physicians most familiar with him.

[105]    
One of the leading decisions on the mitigation of damages is Graham
v. Rogers 2001 B.C.C.A. 432.  At para. 35 Rowles, J.A. set out the
principle as it applies in personal injury cases:

Mitigation goes to limit recovery
based on an unreasonable failure of the injured party to take reasonable steps to
limit his or her loss.  A plaintiff in a personal injury action has a positive
duty to mitigate but if a defendant’s position is that a plaintiff could
reasonably have avoided some part of the loss, the defendant bears the onus of
proof on that issue.

[106]    
In Power v. Carsell, 2011 B.C.S.C. 1672 at para. 220, Gray, J.
had occasion to expand on the principle expressed earlier by our Court of
Appeal:

The defence bears a heavy burden in establishing a reduction
in damages on the basis of failure to mitigate. The applicable law is
well-summarized in Fox v. Danis, 2005 BCSC 102 (CanLII), 2005 BCSC 102
at paras. 35-37, aff’d 2006 BCCA 324 (CanLII), 2006 BCCA 324.

[35]  There is no dispute that
every plaintiff has a duty to mitigate his/her damages, and that the burden of
proving a failure to fulfil that duty rests with the defendant, the standard of
proof being the balance of probabilities: Janiak v. Ippolito, 1985
CanLII 62 (SCC), [1985] 1 S.C.R. 146.

[36]  In this case, the Defendant
submits that the Plaintiff failed to mitigate her loss in that she failed to
exercise as recommended by her family doctor.

[37]  To succeed in proving these submissions, the
Defendants must establish, on the balance of probabilities, that the Plaintiff
failed to undertake this recommended treatment; that by following the
recommended treatment she could have overcome or could in the future overcome
the problems; and that her refusal to take that treatment was unreasonable: Janiak
v. Ippolito, supra and Maslen v. Rubenstein 1993 CanLII 2465 (BCCA),
(1993), 83 B.C.L.R. (2d) 131 (C.A.).

[107]     I observe
that in order to succeed on a failure to mitigate argument the defence must, on
a balance of probabilities, meet three criteria:

(a)      that the plaintiff failed
to take the recommended treatment;

(b)      that by following the
recommended treatment he could have overcome the problems and avoided the loss,
and;

(c)      that the refusal to take
that treatment was unreasonable.

[108]     In my
view, not only has the defendant failed to meet any of these and prove them on
a balance of probabilities the reverse is true on the evidence.

[109]     Mr.
Preston is viewed by those who know him best including Dr. Le Roux as being a
very compliant patient who was willing to try any form of suggested treatment.

[110]    
In his written report of February 7, 2011, Dr. Le Roux described Mr.
Preston in these words in a paragraph at the bottom of page 2:

Mr. Preston has pursued all the
suggested treatments with a lot of enthusiasm.  He has been to the gymnasium
and the pool to try to strengthen himself.  He did use aqua exercises.  He also
saw a chiropractor in Prince George as well as received acupuncture as well as
yoga during the treatment period.

[111]     The
evidence articulated by the defence falls far short of meeting the test in this
case.

[112]     I point
out that the passage quoted above was written by Dr. Le Roux as indicated on
February 7, 2011.  This was approaching five full years after the accident and
was written by the family doctor who had treated him from the date of the
accident and prescribed the various treatments.

[113]     The
defence argument concerning failure to mitigate must fail.

PRE-EXISTING CONDITIONS

[114]     The
defendant also includes within their submissions an argument that “…any
continuing symptoms of which he complains [are] a direct result of the
progression, development and evolution of pre-accident degeneration in his
spine which continues …”

[115]     The issue
of causation involves a consideration of whether an accident caused
per-existing conditions to be activated or aggravated.  The process by which
the court assesses damages involves a consideration of whether there was a
measurable risk of the pre-existing condition detrimentally affecting the
plaintiff in the future, regardless of the defendant’s negligence. Hosak v.
Hirst, 2003 B.C.C.A. 42.

[116]    
In the Hosak decision Rowles, J.A. writing for the court, had to
consider the issue of causation in a case where the tortious act materially
contributed to a non-tortious condition.  The principles to be applied in such
circumstances were summarized by the Supreme Court of Canada in Athey v.
Leonati [1996] 3 S.C.R. 458 beginning at p. 466:

[13]  Causation is established where the plaintiff proves to
the civil standard on a balance of probabilities that the defendant caused or
contributed to the injury:

[14]  The general, but not conclusive, test for causation is
the “but for” test, which requires the plaintiff to show that the injury would
not have occurred but for the negligence of the defendant:

[5]  The “but for” test is unworkable in some circumstances,
so the courts have recognized that causation is established where the
defendant’s negligence “materially contributed” to the occurrence of the
injury: …  A contributing factor is material if it falls outside the de
minimis range:

[17]  It is not now necessary, nor has it ever been, for the
plaintiff  to establish that the defendant’s negligence was the sole cause
of the injury.  There will frequently be a myriad of other background events
which were necessary preconditions to the injury occurring. … As long as a
defendant is part of the cause of an injury, the defendant is liable,
even though his act alone was not enough to create the injury.  There is no
basis for a reduction of liability because of the existence of other preconditions: 
defendants remain liable for all injuries caused or contributed to by their
negligence.

[18]  This proposition has long been established in the
jurisprudence.  Lord Reid stated in McGhee v. National Coal Board, supra,
at p. 1010:

It has always been the law that a
pursuer succeeds if he can shew that fault of the defender caused or materially
contributed to his injury.  There may have been two separate causes but it is
enough if one of the causes arose from fault of the defender.  The pursuer does
not have to prove that this cause would of itself have been enough to cause him
injury.

[19]  The law does not excuse a defendant from liability
merely because other causal factors for which he is not responsible also helped
produce the harm: …  It is sufficient if the defendant’s negligence was a cause
of the harm:

[20]  This position is entrenched in our law and there is no
reason at present to depart from it.  If the law permitted apportionment
between tortious causes and non-tortious causes, a plaintiff could recover 100
percent of his or her loss only when the defendant’s negligence was the sole
cause of the injuries.  Since most events are the result of a complex set of
causes, there will frequently be non-tortious causes contributing to the
injury.  Defendants could frequently and easily identify non-tortious
contributing causes, so plaintiffs would rarely receive full compensation even
after proving that the defendant caused the injury.  This would be contrary to
established principles and the essential purpose of tort law, which is to
restore the plaintiff to the position he or she would have enjoyed but for the
negligence of the defendant.

 [Emphasis
of Major J.]

[117]    
An explanation of the way in which a pre-existing condition may be
relevant to the assessment of damages as opposed to the issue of causation can
be found in Athey v. Leonati, supra, under the heading “The Thin Skull”
and ‘Crumbling Skull’ Doctrines” at p. 473”

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

[35]  The so-called “crumbling skull” rule simply recognizes
that the pre-existing condition was inherent in the plaintiff’s “original
position”.  The defendant need not put the plaintiff in a position better
than his or her original position.  The defendant is liable for the injuries
caused, even if they are extreme, but need not compensate the plaintiff for any
debilitating effects of the pre-existing condition which the plaintiff would
have experienced anyway.  The defendant is liable for the additional damage but
not the pre-existing damage: … Likewise, if there is a measureable risk that
the pre-existing condition would have detrimentally affected the plaintiff in
the future, regardless of the defendant’s negligence, then this can be taken
into account in reducing the overall award: … This is consistent with the
general rule that the plaintiff must be returned to the position he would have
been in, with all of its attendant risks and shortcomings, and not a better
position.

 [Emphasis
of Major J.]

[118]     In their
written argument (paragraph 2) and in their oral submissions the defence
conflated the issue of causation (whether the accident caused the pre-existing
condition to be “activated or aggravated”) with an issue relevant to the
assessment of damages (whether there was a measurable risk that the
pre-existing condition would have detrimentally affected the plaintiff in the
future, regardless of the defendant’s negligence).

[119]     In
conflating these issues the defence effectively asks the court to find that any
and all continuing symptoms are a result of the pre-existing condition rather
than the accident.

[120]     With
respect on the issue of causation there is no evidence before the court that
the degenerative state that existed in the plaintiff’s spinal column prior to
the accident was symptomatic in any way prior to the collision.  Indeed the
evidence is almost entirely to the contrary.

[121]     The
evidence is that the plaintiff worked without restriction in his professional
activities prior to the accident and enjoyed a full and active series of
recreational activities.

[122]     Dr. Le
Roux in his cross-examination testified that he could not recall Mr. Preston
ever having similar symptoms prior to the accident.

[123]     I have no
hesitation in finding on the whole of the evidence in this case that any
pre-existing condition at the time of the accident was asymptomatic and the
accident was the cause or at the very least materially contributed to the
injuries and symptoms that followed.

[124]     Moving on the
second issue I have reviewed all of the evidence placed before the court.  On
the basis of that evidence I am wholly unable to conclude that it establishes
that there was a measurable risk that the pre-existing condition, such as it
was, would have detrimentally affected the plaintiff in the future, regardless
of the defendant’s negligence.

DR. BOYLE’S MEDICAL REPORT

[125]      The
defendant provided and relied upon what purported to be an independent medical
report (IME) by Dr. Boyle.

[126]     Dr. Boyle
readily acknowledged that he was not asked to and did not meet with, examine or
interview the plaintiff.

[127]     Dr. Boyle
reviewed documents and information provided by counsel and wrote his report.

[128]     These
documents and that information included clinical records of various medical
professionals.

[129]     This is a
process that is unlikely to assist the court in any material way.  The first
concession is invariably, and was in this case, that interviewing, examining
and getting a personal history is important to providing an accurate and complete
assessment.

[130]     This is a
trend that appears to have been of relatively recent origin.

[131]     It is also
a trend which has drawn adverse comment from judges of this court. Dhaliwal
v. Bassi 2007 B.C.S.C. 549 (Burnyeat, J. at paras. 2-3); Ruscheinski v.
Biln 2011 B.C.S.C. 1263 (Walker, J. at paras. 85-87); Rizotti v. Doe
2012 B.C.S.C. 1330 (Tindale, J. at para. 35).

[132]     To these I
would add my own comments.  Where an expert chooses to prepare a report as he
did here, expecting this court to accept and rely on it.  He is presenting a
report in which he effectively asserts that he accepts as true and accurate the
factual base on which his opinions are based.

[133]     Where he
does so without seeing, examining or taking a personal history he chooses to
offer his opinion on the basis of hearsay.  Worse still he chooses to offer it
on the basis of his interpretation of hearsay recorded by others.

[134]     Another
difficulty presents itself with respect to the report and evidence of Dr. Boyle
and the report of Dr. Hawk.

[135]     The
clinical records and other documents were admitted under the terms of a
document agreement which was entered as Exhibit #1.

[136]     Under the
terms of that agreement the use of documents in general, which includes
clinical records, is limited.  Paragraph 2 and 5 of that document are
particularly notable.

[137]     In my
view, Dr. Boyle’s report should be afforded the weight it deserves and in this
case where credibility and exaggeration are both asserted against the plaintiff
by the defendant that is no weight at all.

[138]    
It was not argued in this case that the report was inadmissible and Dr.
Boyle’s qualifications to give an expert opinion on this case and in these
circumstances was not addressed. I leave it then to another day and for full
argument for this court to consider whether the requirements are met to allow
the report to be received at all in these circumstances.

NON-PECUNIARY DAMAGES

[139]     Non-pecuniary
damages are intended to compensate a plaintiff for his or her pain, suffering
and loss of enjoyment of life.  The philosophical approach is that the damage
award should compensate a plaintiff for those damages he or she has suffered up
to the date of trial and for those they will suffer into the future.

[140]     The
essential principle arising from the authorities is that an award for
non-pecuniary damages must be fair and reasonable to all parties and should be
measured by the adverse impact of the particular injuries on the particular
plaintiff.

[141]     In Stapley
v. Hejslet 2006 B.C.C.A., Kirkpatrick. J.A. writing for the majority set
out at paragraph 46 a list of common factors to be considered in arriving at a
proper award for non-pecuniary damages.  Although Stapley was a jury
trial the list of factors is a useful checklist that is clearly not intended to
be exhaustive.

[142]     The
factors to be considered include:

(a)      the age of the plaintiff;

(b)      nature of the injury;

(c)      severity and duration of
pain;

(d)      disability;

(e)      emotional suffering;

(f)       loss of enjoyment 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.C.A. 54.

[143]     The
plaintiff relies on a series of ten decisions where the non-pecuniary damages
award ranged from $80,000 to $125,000.

[144]     The
defence submits that non-pecuniary damages should be in the range of $30,000 to
$50,000 with a further reduction of 20% for the plaintiff’s failure to
mitigate.  This submission is based on the opinions of Dr. Hawk and Dr. Boyle
being accepted.  I have already indicated in these reasons my decision with
respect to the defendant’s submission that the plaintiff failed to mitigate his
damages.  I have also dealt earlier with the reports and evidence of Dr. Boyle
and the report of Dr. Hawke.

[145]     So there
is no doubt I prefer the evidence and opinions of Dr. Le Roux and Dr. Hirsch to
those of Dr. Boyle and Dr. Hawk.

[146]     In
approaching this set of facts I am mindful that although there are objective
clinical findings that, in my view, support the plaintiff’s evidence his
complaints are to a significant extent subjective complaints of pain.

[147]     Price
v. Kostryba (1982) 70 B.C.L.R. 397 (S.C.) is a decision which is often
considered to be an important reminder of the approach the court must take when
assessing injuries which depend on subjective reports of pain.

[148]    
In this decision, then Chief Justice McEachern wrote a pages 397 – 399:

The assessment of damages in a moderate or moderately severe
whiplash injury is always difficult because plaintiffs, as in this case, are
usually genuine, decent people who honestly try to be as objective and as
factual as they can.  Unfortunately, every injured person has a different
understanding of his own complaints and injuries, and it falls to judges to
translate injuries to damages.

Perhaps no injury has been the subject of so much judicial
consideration as the whiplash.  Human experience tells us that these injuries
normally resolve themselves within six months to a year or so.  Yet every physician
knows some patients whose complaint continues for years, and some apparently
never recover.  For this reason, it is necessary for a court to exercise
caution and to examine all the evidence carefully so as to arrive at a fair and
reasonable compensation.  Previously decided cases are some help (but not much,
because obviously every case is different)

In Butler v. Blaylock, decided 7^th October
1981, Vancouver No. B781505 (unreported), I referred to counsel’s argument that
a defendant is often at the mercy of a plaintiff in actions for damages for
personal injuries because complaints of pain cannot easily be disproved.  I
then said:

I am not stating any new principle
when I say that the court should be exceedingly careful when there is little or
no objective evidence of continuing injury and when complaints of pain persist
for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer.  But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence, — which could be just his own evidence if the surrounding
circumstances are consistent – that his complaints of pain are true reflections
of a continuing injury.

[149]     The
cautions evident from this decision are equally applicable in the present case
and they must be kept in mind throughout the consideration of the case.

[150]    
In Power v. Carswell 2011 B.C.S.C. 1672, Gray, J. at paragraph
183 wrote:

[183]  Non-pecuniary losses have
no objective ascertainable value, because there is no market in health and
happiness.  It is generally not possible to put a claimant back in the position
she would have been in had the injury not occurred, and this is especially true
of non-pecuniary loss.  The Court must fix a sum that is tailored to Ms. Power,
and that is moderate but fair and reasonable for both parties, keeping in mind
that Ms. Power will not be fully compensated for her future care needs and
other pecuniary losses.  The Court does not try to assess a sum for which Ms.
Power would have voluntarily chosen to suffer such pain, inconvenience, and loss
of enjoyment of life.

[151]     In
approaching the quantum of non-pecuniary damages, I have considered each of the
cases provided by counsel.  In examining other awards from other decisions, it
is necessary to keep uppermost in your mind the fact that although decisions in
other cases can provide some assistance, each case, by the nature of the
individual and their circumstances, varies depending on its own facts.

[152]     Keeping in
mind the various factors listed by Kirkpatrick, J.A. in Stapley v. Hejslet,
supra, I note the following:

(a)      Mr. Preston was 45 years
of age at the time of the motor vehicle accident and 52 at trial;

(b)      Mr. Preston suffered a
minor soft tissue injury to his neck which, on the evidence appears to have
resolved within a week or two.  The major injury was, however, to his lower
thoracic spine and to his lumbar spine.  These injuries involved damage to the
structures including the muscles, tendons and ligaments attaching to his lower
thoracic and lumbar spine.  The exact mechanism of this injury is unclear as is
the role of any pre-existing degeneration.  What is clear, in my view, is that
any such degeneration was, prior to the accident asymptomatic and may well have
remained so but for the accident.

Mr. Preston’s injuries have
resulted in chronic pain and limitations which have persisted and appeared to
plateau.  His level of function has not significantly changed since he
underwent a Functional Capacity Evaluation in 2006.

Mr. Preston, in my view, at trial
and in the foreseeable future will remain unable to “perform the full spectrum
of his work as an autobody technician”;

(c)      Mr. Preston has suffered
from ongoing pain which is variable and has required the use of pain medication
up to, and including occasional injections of Toradal. The variability of the
pain appears to be related directly to the activities he is engaged in.  In the
end his activities have been, for him, significantly restricted in areas which
were important to him;

(d)      The plaintiff has been
referred to and engaged in a wide variety of treatment modalities which have
provided limited success.  He continues to suffer from chronic pain and
sleeping problems which leave him exhausted.

While regular exercise programs may
provide, over time, some limited relief he will, in all probability, have to
live with a level of pain indefinitely;

(e)      Mr. Preston’s injuries and
the limitations he now lives under have reduced a very busy and active
individual to a more sedentary observer.  This has been particularly difficult
for Mr. Preston because of his seemingly natural inclination to the activities
that are now restricted at best;

(f)       Mr. Preston’s lifestyle
both in his profession and in his choice of recreational activities has been
significantly curtailed; and

(g)      For those who have not
experienced the adrenaline rush of drag racing or the incredible beauty of a
mountain peak in winter from a snow machine, these losses may be difficult to
measure.  For someone who has lived for them they are a very significant loss.

[153]     Mr.
Chudiak referred to and relied upon the decisions in:

Crane v. Lee, 2011 B.C.S.C.
898;

Gosselin v. Neal, 2010
B.C.S.C. 456;

Poirier v. Aubrey, 2010
B.C.S.C. 266;

Morlan v. Barrett, 2012
B.C.S.C. 66;

Mohan v. Khan, 2012 B.C.S.C.
436;

Barnes v. Richardson, 2008
B.C.S.C. 1349;

Hoskine v. Mahoney, 2009
B.C.S.C. 803;

Drodge v. Kozak, 2011
B.C.S.C. 1316;

MacKenzie v. Rogalasky, 2011
B.C.S.C. 54; and

Hooper v. Nair, 2009
B.C.S.C. 862

[154]     Mr.
Stewart referred to and relied upon the decisions in:

Chamberlain v. Profiet,
2010 B.C.S.C.  1598;

Rattenbury v. Samra, 2009 B.C.S.C.
207;

Smith v. Wirachowsky, 2009
B.C.S.C. 1434; and

Chan v. Lee, 2008, B.C.S.C.
594

[155]     In all the
circumstances an appropriate award for Mr. Preston’s non-pecuniary losses is
$100,000.

PAST LOST INCOME AND LOSS OF CAPACITY

[156]    
The factors relevant to assessing the value of lost future earning
capacity were set out in the decision in Brown v. Gorlaiy (1985) 26
B.C.L.R. (3d) at paragraph 8:

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

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

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

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

[157]    
In Reilly v. Lynn, 2003 BCCA 49 at paragraphs 100 – 101 the
majority summarized the approach to lost earning capacity:

[100]    An award for loss
earning capacity presents particular difficulties.  As Dickson J. (as he then
was) said, in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at
251:

We must now gaze more deeply into the crystal ball.  What
sort of a career would the accident victim have had?  What were his prospects
and potential prior to the accident?  It is not loss of earnings but, rather,
loss of earning capacity for which compensation must be made: The Queen v.
Jennings, supra. A capital asset has been lost: what was its value?

[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. (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.  In adjusting the contingencies, the remarks of Dickson
J. in Andrews v. Grand & Toy Alberta Ltd., supra, at 253, are a
useful guide:

First, in many respects, these contingencies implicitly are
already contained in an assessment of the projected average level of earnings
of the injured person, for one must assume that this figure is a projection
with respect to the real world of work, vicissitudes and all.  Second, not all
contingencies are adverse …  Finally, in modern society there are many public
and private schemes which cushion the individual against adverse
contingencies. Clearly, the percentage deduction which is proper will
depend on the facts of the individual case, particularly the nature of the
plaintiff’s occupation, but generally it will be small

 [Emphasis added by Low
and Smith JJ.A.]

[158]     This present
claim is complicated by a number of factors.  Firstly Mr. Preston owned his own
business, together with his wife.  Their autobody shop operated with a number
of other employees and with Mr. Preston both working as a body man for part of
his time, as well as providing management and supervision to the business.

[159]     After the
accident Mr. Preston attempted to continue doing those tasks, or rather
discovered that if he did he would suffer pain and other difficulties from
doing so.

[160]     The result
of this was a transition to a role in his business that was predominately
administrative.

[161]     Mr.
Chudiak strove mightly to construct various scenarios and calculations to
support a past loss while Mr. Preston continued to work in his business,
albeit, doing tasks he did not enjoy as much, and that were not the same as
those he had done before.

[162]    
These hypotheticals were in my view, attempts to bring some logic and
apparent certainty to situations that simply didn’t exist.  In essence, in the
end Mr. Chudiak’s submissions came down to what is set out in paragraphs 44 and
45 of his written submissions:

44.       In respect of this portion of the claim dealing
with Mr. Preston’s past loss of capacity, or the value that Mr. Preston would
have been able to contribute to the gross sales of New Tech, we submit the
following:

$2,000 per month x 12 months x 6.5
years = $156,000

commencing in 2006.

45.       In respect of Mr.
Preston’s future loss of capacity, we submit that a global award of $150,000 is
reasonable.

[163]     In
paragraph 44 Mr. Chudiak mixes the income of New Tech (presumably he means the
company Preston & McLarry Ltd.) with “… the claim dealing with Mr.
Preston’s past loss of capacity …”

[164]     In
addition he suggests that “… the value Mr. Preston would have been able to
contribute to the gross sales of New Tech …” he goes on to present a
calculation totalling $24,000 per year.

(1)      Neither the business New
Tech nor the company Preston & McLarry Ltd. are parties to this litigation;

(2)      I am uncertain as to how
the “contribution” of Mr. Preston to the gross sales of New Tech is a claim he
can personally advance in this litigation;

(3)      I am even more uncertain
how the claim outlined in paragraph 44 is in any way a loss of Mr. Preston’s;

(4)      In Exhibit #4 are found
what is categorized as the “Financials”.  These documents include the
plaintiff’s tax returns, the financial statements of Preston & McLarry Ltd.
and other financial documents.  Mr. Preston’s tax returns show at line 150 his
total income as:

[165]     These
numbers in my respectful view make it clear that Mr. Chudiak’s calculations in
paragraph 44 of his written submissions are not based on Mr. Preston’s declared
income but something else.

[166]     In view of
the conclusion I have reached the plaintiff, in my view, undoubtedly suffered a
loss of capacity as a result of the accident of May 1, 2005.  The evidence led
by the plaintiff does not, however, establish a loss of income flowing from the
accident.

[167]     The
closest they approach doing so is by producing the plaintiff’s tax returns
which are summarized above. These tax returns show a drop in total income from
a high of $9,582 in 2005 to $1,654 in 2006 and then the numbers indicated
above.

[168]     The
problem is that there is little or nothing in the way of explanation for these
numbers.

[169]     I am
unable to accept the basis presented by Mr. Chudiak for his calculations as
they are neither supported by the plaintiff’s tax returns nor by the financial
statements of Preston & McLarry Ltd. itself.

[170]     Having
reached the conclusions I have with respect to the plaintiff’s loss of
capacity, I am persuaded that there is a compensable loss of capacity that the
plaintiff should be compensated for.  There is, in my view no calculations
presented which can be applied in the traditional way.

[171]     I do not
accept that an increase of labour costs to a company who is not a party to this
litigation, if it exists at all is compensable.

[172]     No data
has been placed before this court which would allow it to draw reasonable
inferences that would explain the difference in performance of this company pre
and past accident.

[173]     In a very
simple form of analysis in three years prior to the accident.

[174]     These
figures in a form of simple analysis show the performance of the company before
the accident occurred in 2005.

[175]     In 2005
the numbers during the year of the accident were:

[176]     In the
four years since the year in which the accident occurred the same numbers the
same numbers taken from the financial statements showed the following:

[177]     It is
difficult to know what precisely is reflected in the changes in these numbers
but in very general terms the company appears to be performing better after the
accident then it was before.

[178]     What is
nowhere evident is how these changes impacted the plaintiff or caused his loss.

[179]     In the
circumstances and doing the best I can to arrive at a reasonable level of
compensation for his past loss of capacity as at the date of trial.

[180]     The
average line 150 income of the plaintiff in the five years prior to 2005 is an
average declared income of approximately $8,395. In the year of the accident,
2005, his declared income exceeded that amount by roughly a thousand dollars. 
In the subsequent six years the plaintiff’s average line 150 income was $2,773.83.

[181]     I award
the plaintiff for past loss of capacity $30,000 representing the approximate
difference from the average.

[182]     Turning to
the future loss of capacity I am left with many of the same difficulties. 
Despite Mr. Chudiak’s efforts to persuade this court that Mr. Preston would
have completed his home shop that he had begun prior to the accident, retired
at 55 and continued working on his car restorations of which he was so proud.
Working for six months and travelling for the balance of the year.  He has
fallen short of persuading that this would occur.

[183]     Even Mr.
Preston acknowledges that he didn’t know if he would make that happen as he
hoped at age 55.

[184]     Examining
Mr. Carson’s table of calculations and report, I have considered its use in the
present case.  In my view, once again, doing the best I can with an uncertain
base from which to work and recognizing that Mr. Preston has a significant loss
of capacity as a result of his inability to perform the full range of functions
of his chosen profession.  I have concluded that this is a case where it would
be best served by a global award representing the plaintiff’s loss of capacity
to age 65 from the date of trial.

[185]     Under the
category of Loss of Future Capacity, I award the plaintiff the sum of $75,000.

COST OF FUTURE CARE

[186]     Mr.
Preston’s claim for the cost of future care is based on the recommendations
found in the Cost of Future Care Analysis prepared by an occupational
therapist, Megan Stacey.

[187]     The detailed
recommendations are found in her report beginning on page 6 and summarized in
Appendix C.

[188]    
The defence’s submission with respect to these clams is evident from a
couple of typical extracts from their written submissions.  In paragraphs 79
and 80 under the heading Future Cost of Care, counsel for the defendant makes
the following submissions:

79.       The Defence asks the following questions in that
why should the Defendant pay for an exercise program the Plaintiff has had the
opportunity to do earlier and did not carry on with?

80.       Why should the
Defendant pay for pool attendances that the Plaintiff has carried out in a less
than frequent manner?

[189]     The short
answers to the questions posed is the defendant should pay for these items
because of the findings this court has made with respect to Mr. Preston’s
injuries and the recommendations made by the medical professionals who have
assessed his needs.

[190]     With the
greatest of respect it seems disingenuous for a defendant to argue that a claim
should be reduced by the plaintiff’s failure to mitigate by pursuing the very recommended
activities he now argues they should not pay for.

[191]     So it is
clear I conclude and find that Mr. Preston did pursue “… all the suggested
treatments with a lot of enthusiasm.  He has been to the gymnasium and the pool
to try to strengthen himself.  He did use aqua exercises.”

[192]     This
assessment by his family doctor in my view is the opinion of the treating
doctor most aware of Mr. Preston’s efforts.  It seems true that those efforts
failed to cure the problems Mr. Preston was having but the medical recommendations
suggest such a course of action and treatment may reduce, although it is
unlikely to cure, the pain.

[193]    
In 1985 in Milina v. Bartsch (1985) 49 B.C.L.R. (2d) 33
McLachlin, J., as she then was, in addressing the purpose of providing awards
for future care costs at paragraph 78 wrote:

The primary emphasis in assessing
damages for a serious injury is provision of adequate future care. The award
for future care is based on what is reasonably necessary to promote the mental
and physical health of the plaintiff.

[194]     As
Bennett, J.A. put it in Gignac v. ICBC 2012 BCCA 35 “… the object of
this award is to treat with money, the medically untreatable residual
disability.”

[195]     Mr.
Preston continues to experience lower back stiffness and pain more than seven
years after the accident.  His symptoms have been diagnosed as a chronic pain
syndrome and he is expected to live with pain indefinitely.  He must be
compensated for the future costs of medication, treatment and exercise aimed at
minimizing that pain or reducing it if possible.

[196]     He is also
entitled to be compensated for the costs of required activities he can no
longer do for himself.

[197]     The costs
sought are set out as I have indicated in the report of Megan Stacey and are
costed in the report of Robert Carson in Table 1.

[198]     I award
the plaintiff under the category of Cost of Future Care $70,172.

SPECIAL DAMAGES

[199]     The
plaintiff seeks reimbursement for special damages he incurred which total
$14,740.07.

[200]     These
special damages are detailed in Exhibit #6 together with the supporting
documents.

[201]     A summary
by category is found at Tab 1 and shows the following breakdown of this claim:

SUMMARY

[202]     In summary
Mr. Preston is entitled to an award of $289,912.07, consisting of the
following:

a)       $100,000.00 for
non-pecuniary damages;

b)       $30,000.00 for past loss
earning capacity;

c)       $75,000.00 for lost future
earning capacity;

d)       $70,172.00 for the cost of
future care; and

e)       $14,740.07 for special damages.

[203]    
The plaintiff has been largely successful and would ordinarily recover
his costs.  If counsel are unable to agree costs may be spoken to.

 “Mr.
Justice W.G. Parrett”