IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20160404

Docket: S22909

Registry:
Chilliwack

Between:

Steven
Samuel McCullum

Plaintiff

And

Brennan
Gerald White

Defendant

– and –

Docket: S25762

Registry:
Chilliwack

Between:

Steven
Samuel McCullum

Plaintiff

And

Stanley
Thomas Reimer

Defendant

Before:
The Honourable Mr. Justice Voith

Reasons for Judgment

Introduction

[1]            
The plaintiff, Mr. McCullum, was injured in two separate motor
vehicle accidents that occurred on September 30, 2008 (the “First Accident”),
and on March 20, 2011 (the “Second Accident”) respectively, (collectively “the
Accidents”). Liability for the Accidents has been admitted. The central issues
that are raised pertain to:

a)       the extent of Mr. McCullum’s injuries;
and

b)       whether Mr. McCullum has properly
mitigated his losses.

[2]            
At bottom, however, the real issue, particularly as it relates to Mr. McCullum’s
past and future loss of capacity claim, is the extent to which the Accidents,
as opposed to other personal circumstances, underlie those claims.

Background and History

[3]            
Mr. McCullum is presently 25 years old. Aspects of his childhood,
upbringing, and more recent history, have been difficult and troubled. His
mother was an alcoholic who was both abusive and violent towards her children.

[4]            
At the age of six, the plaintiff and his siblings were taken from his
mother by the Ministry of Social Services, now the Ministry of Children and
Family Development. They were briefly reunited with their mother but again
removed from her care some months later. The plaintiff and his twin brother were
placed in a series of foster homes. They were ultimately placed in the foster
home where Mr. McCullum resided for approximately the next 14 years,
though he was separated from his twin brother almost immediately. He has no
relationship with his birth mother and has lost contact with his twin brother
and two sisters.

[5]            
Mr. McCullum struggled in school. He said that he suffers from
attention deficit disorder and that he now takes medication for that condition.
He regularly got into fights and was placed in an alternate school. The issue
of Mr. McCullum’s fighting in his teens was dealt with by his foster
father and by other witnesses who gave evidence at trial. He ultimately left
school in grade 11 and has obtained no further formal education or trade
qualifications.

[6]            
His relationship with his foster parents appears to have been quite good
and he spoke fondly of both of them. Having said that, he left their home when
he was 19 years old – or relatively shortly after the first Accident. His
foster mother died a few years thereafter and he appears to have had little, if
any, ongoing contact with his foster father.

[7]            
Mr. McCullum was a good athlete and liked sports. He began to work
as a cook, in the summers, when he was 15 years old. I will deal with both Mr. McCullum’s
physical activities and his work history later in these reasons.

[8]            
Over the ensuing years, he continued to have various problems. From 2007
to date he has had 19 different jobs. Some he left, he said, because of the
injuries and ensuing pain that were caused by the Accidents, others he left for
a multitude of other reasons, and some he was fired from.

[9]            
He moved innumerable times after 2009. He would often “couch surf” and
stay for days, weeks, or months with either friends, or his half-brother, or a
girlfriend, or acquaintances. At times, he was homeless, and either lived on
the streets or stayed in shelters. At times, he was on social assistance.

[10]        
In March 2013, he met his present partner, Ms. Renaerts. They had a
daughter in March 2014. Though they separated for a period of time, they are
now together again.

[11]        
Mr. McCullum has also had various legal difficulties. The
chronology of these difficulties is not precise because Mr. McCullum gave
somewhat different evidence in his direct evidence and in his cross-examination,
and because still other dates arise from documents. I do not fault him for
this. I simply note this is a fact.

[12]        
In late 2009, he was arrested for selling both marijuana and ecstasy. In
January or February 2010, he was incarcerated for approximately a month for
various breaches of his bail conditions. He was subsequently charged with
mischief. In about February 2010, a “no contact” order was made against him
preventing him from approaching a former girlfriend and her mother. He was,
again, incarcerated for breaching his bail conditions in approximately September
2011 and spent approximately 45 days in jail.

[13]        
He then breached his bail conditions again and travelled to Dawson
Creek, British Columbia and later to Hythe, Alberta. He was apprehended in
September 2012, and incarcerated for about a week, at which time he was
released on his own recognizance and made his way back to Agassiz, British
Columbia.

[14]        
In August 2013, he was convicted of the various earlier charges that he
faced, and was incarcerated from August to October 2013.

[15]        
It is relevant, too, that the plaintiff was involved in several further
difficulties. In 2010, he was involved in an altercation where he was head-butted.
His nose was fractured and required several stitches. In July 2014, in
circumstances I will return to, he was placed in a headlock by the police and
was taken to the hospital for various reasons. In October 2014, the police
attended at his home. He was found unconscious beneath a door, which appeared to
have been kicked in. There appeared to be some agreement, at trial, that he may
have been assaulted.

[16]        
Mr. McCullum has also had, in recent years, serious difficulties
with illegal drug use. He said that he started to use marijuana when he was in
grade eight, and continued to do so thereafter. In the period prior to the
First Accident, he was doing so several times a week. He agreed that he had
used cocaine in high school. The extent to which he continued to do so
thereafter is less clear.

[17]        
He says he started to use heroin in March 2011, shortly after the Second
Accident, and that he continued to do so in 2013, and with even greater
frequency in 2014. He used oxycodone, illegally at times, as well as crystal methamphetamines.
He said that his use of crystal meth also started as early as 2012 and
continued thereafter on a sporadic basis. He said that sometimes he would use
the drug for three or four days in a row and then would not do so for a month.

[18]        
His use of drugs was so extreme that he was hospitalized in July 2014.
He was again hospitalized for about a week in October 2014. The hospital
records indicate that he was “extremely ill”, and that he had passed a condom
of cocaine while in the hospital. His kidneys had failed and the hospital
records indicate that he had suffered a “cardiac arrest”.

[19]        
In early January 2015, Mr. McCullum went on a methadone programme,
and he has been on that programme since that time. He also receives medical marijuana.
From January to April 2015, Mr. McCullum was in a drug rehabilitation
facility and programme for approximately two months.

The Accidents

[20]        
Because liability has been admitted, relatively little turns on the
details of the Accidents. It is relevant that there was some force attached to
the First Accident. Mr. McCullum estimated that the pickup truck he was a
passenger in was likely travelling at 60 kilometres per hour when it struck a
hydro pole. Mr. McCullum was taken to the hospital and then discharged. He
said he thereafter spent a few days in bed.

[21]        
It is relevant that Dr. McGraw, an orthopedic surgeon, called on
behalf of the plaintiff, who had prepared five separate reports, opined in his
third report that the Second Accident contributed “to a much lesser degree” to
the plaintiff’s injuries than did the First Accident.

Credibility

[22]        
The defendants argued that the plaintiff’s evidence was not credible in
various respects and, because the plaintiff’s complaints of pain and disability
were subjective, they should be viewed with significant caution.

[23]        
I agree that there are aspects of the plaintiff’s evidence that are a
source of concern. This is so, particularly in respect of Mr. McCullum’s
drug use, and his involvement in selling drugs. Mr. McCullum admitted to
using cocaine in high school. Though he initially said that he had not used
that drug after high school, he then said he could not recall whether he had
used it after that time. He then confirmed, in his direct evidence, that he had
not used cocaine in the 12 months preceding the trial.

[24]        
Similarly, the plaintiff said at one point that he had not sold drugs
after he was arrested for doing so in 2010. He then said that he had sold some
drugs after that time but could not remember when. The records of his physician
suggest that he was selling drugs when he was taken to the hospital in October
2014. He also said that he was uncertain why he had ingested a condom of
cocaine.

[25]        
Still further, Mr. McCullum accepted that he had not been
forthright about his drug use with either of his two family doctors or with
some of the independent medical experts who had examined him. He saw Dr. Sovio,
for example, in September 2015, or relatively shortly before this trial, and he
denied having ever used heroin when he spoke to Dr. Sovio.

[26]        
The fact that aspects of the plaintiff’s evidence were not credible or
reliable does not, however, mean that other components of his evidence cannot
or should not be relied on. Instead, it is important that the Court ascertain
whether there is independent or corroborative evidence that supports the
evidence of the plaintiff; Andraws v. Anslow, 2016 BCCA 51 at paras. 12-16.

[27]        
A central issue in this case is the extent and duration of the injuries
that Mr. McCullum suffered in the Accidents. That issue is addressed in Mr. McCullum’s
evidence. It was also addressed, for example, in the evidence of various
third-party lay witnesses who had observed and worked with, or otherwise spent
time with, Mr. McCullum. It was also addressed in the evidence of various
medical experts, as well as in the evidence of Mr. Corcoran, who performed
a functional capacity evaluation of the plaintiff.

[28]        
I am satisfied that these and other categories of evidence allow me to
fully address the issues that have been raised by the plaintiff. I can
therefore make the findings required of me based both on the evidence of the
plaintiff and on other corroborating or consistent evidence.

The Plaintiff’s Injuries

[29]        
As a result of the First Accident, the plaintiff reported, and the
defendants do not question, that he experienced headaches, a soft-tissue injury
to his neck, a soft-tissue injury to his mid-low back, a seatbelt or rash/burn
from his right shoulder to his left hip, an undisplaced fracture of his
sternum, a displaced fracture in his left thumb, and an injury to his right
knee.

[30]        
Apart from the soft-tissue injuries to his back and neck, which I will
return to, these injuries basically resolved within a few months. The plaintiff
said that he still experiences occasional activity-related pain in his chest
and some locking in his right knee, though these symptoms are not disabling.

[31]        
As a result of the Second Accident, the plaintiff experienced an aggravation
of both his previous soft-tissue injuries to his neck and the soft-tissue
injury to his mid-low back.

[32]        
Although Dr. Phimister, the plaintiff’s family physician, offered
the opinion that Mr. McCullum suffers from a retrolisthesis in his lumbar
spine, that opinion is based on the opinion of a radiologist that was not in
evidence. Dr. McGraw reviewed the imaging of Mr. McCullum’s lumbar
spine and opined that the retrolisthesis did not exist. Similarly, Dr. Connell,
a radiologist who had prepared a report on behalf of the defendant, reviewed
the imaging of Mr. McCullum’s lower back and also concluded that the
retrolisthesis did not exist. I accept the conclusions of Drs. McGraw and
Connell on this issue.

[33]        
The burden lies with a plaintiff to establish, on the balance of
probabilities, that “but for” the defendant’s negligence, their injuries or a
particular injury, would not have occurred; Athey v. Leonati, [1996] 3
S.C.R. 458 at paras. 13-14; Clements v. Clements, 2012 SCC 32 at para. 8;
and Ediger v. Johnston, 2013 SCC 18 at para. 28.

[34]        
It is clear that the First Accident caused the seatbelt burn, as well as
the injuries to Mr. McCullum’s left thumb, sternum, and right knee that I
have described.

[35]        
It is also clear that the First Accident caused an injury to the
plaintiff’s neck and to his mid and lower back. Those injuries were, as I have
said, aggravated by the Second Accident. Those injuries were soft tissue in
nature. These conclusions are supported by the evidence of Drs. McGraw,
Phimister, and Sovio. There is no contradictory evidence. The severity and
consequences of these injuries is a different question.

[36]        
There is also no evidence that Mr. McCullum suffered from any
pre-existing back or neck injury. Though there was some evidence that the
plaintiff had injured his back as a child, there was no evidence that that
injury contributed in any way to Mr. McCullum’s present difficulties.

[37]        
Furthermore, though there was some evidence of the presence of an
abnormality in Mr. McCullum’s spine called “Scheuermann’s Disease”, both Dr. McGraw
and Dr. Sovio agreed that this was minor in nature and that this illness
regularly appears in a person’s teens and then “burns out” later in life.
Importantly, there was no evidence that this factor caused or contributed to Mr. McCullum’s
back pain.

[38]        
Mr. McCullum also testified that his back pain frequently
interfered with his ability to sleep. He described problems with finding a comfortable
position when in bed. His evidence was supported by the evidence of Ms. Renaerts.
Though I accept both their evidence on this issue, I observe that Mr. McCullum’s
difficulties with sleep have rarely been raised with his family doctors and are
only once referred to in any of the reports of Drs. McGraw and Sovio. There is
also no discussion or any opinion relating to the cause of Mr. McCullum’s difficulties
with sleep. At minimum, these facts help put the severity of this particular
concern into context.

[39]        
Mr. McCullum also asserted that his illegal drug use and ensuing
drug addiction were caused by the Accidents. He says he sought to self-medicate
in order to address his pain. I do not accept that this is so for several
reasons.

[40]        
First, there is no medical or other expert evidence that addresses this
issue. I accept that there are cases where the issue of causation can be
established without expert or scientific evidence; see Snell v. Farrell,
[1990] 2 S.C.R. 311 at 328 and R. v. Abbey, [1982] 2 S.C.R. 24 at
42. Such evidence is, however, generally important. This is particularly so in
circumstances where the nature and the extent of the plaintiff’s historical drug
use is in question, where the plaintiff has not, in the past and at trial, been
completely forthright, and where the plaintiff’s evidence on this issue is
otherwise unsupported by any other evidence.

[41]        
In Zawadzki v. Calimoso, 2011 BCSC 45, I concluded that the
plaintiff’s alcoholism was caused by the accident in which he was injured. In
that case, there was significant expert evidence which addressed this issue.
There were also numerous third-party witnesses who spoke to the plaintiff’s pre-
and post-accident alcohol consumption.

[42]        
In Picco v. British Columbia (Attorney General), 2015 BCSC 1904,
a case relied on by the plaintiff, Brown J. considered it appropriate to
“augment” the plaintiff’s general damages based on the plaintiff’s acquired
heroin addiction following the accident in question. In that case, the
plaintiff had struggled with addiction issues prior to his accident. There was also
extensive expert evidence at trial. One aspect of that evidence, which Brown J.
found “instructive”, was that the plaintiff was more vulnerable and more susceptible
to the use of narcotics than other members of the public.

[43]        
The present case had no such evidence. Dr. McGraw expressly
declined to opine on the issue. Dr. Phimister, who was conversant with Mr. McCullum’s
present marijuana and methadone use, gave no relevant evidence. Furthermore,
his report, as well as the July 17, 2015 report of Dr. McGraw, reveals
that the plaintiff sees or has seen an addiction specialist. That individual
was not called at trial. I draw no adverse inference from this fact. I simply
note, again, the absence of relevant expert evidence to address the issue of
causation for this component of the plaintiff’s difficulties.

[44]        
There is a further problem with this aspect of the plaintiff’s evidence.
He testified that he first used heroin in the first week following the Second
Accident. He said he did so because he “was fed up with the pain” and that it “relieved
the pain”. Other evidence, however, seems to suggest that the plaintiff’s back
pain had improved prior to the Second Accident. This is what the plaintiff told
Dr. Sovio. The plaintiff was also about to start a new job on the day following
the Second Accident.

[45]        
Furthermore, though the plaintiff said he used heroin and marijuana to
address his pain, this was not the case with crystal meth. As it relates to crystal
meth, he said that he did not know why he used this drug. He said it provided
him with no benefit, though he did say it gave him more energy and that he
could work longer.

[46]        
There are several other relevant pieces of evidence. Dr. McGraw’s
third report was prepared in February 2012, or almost a year after the Second
Accident. In that report, Dr. McGraw addresses the details of the Second
Accident and identifies that Mr. McCullum did not seek any medical
attention for the Second Accident until November 2011, or some eight months
after that accident. This suggests that the plaintiff’s symptoms from the
Second Accident were not as severe as he suggests.

[47]        
A review of the records shows that Dr. McGraw’s observation is not
quite accurate. Nevertheless, the express language and the tenor of his report
suggest that the injuries Mr. McCullum suffered in the second Accident
were “minor” in nature. In addition, Dr. McGraw concluded, in that report,
that he did not anticipate that the plaintiff would suffer from “any long-term
impairment and associated disability that might prevent (him) from pursuing this
career”. This places Dr. McGraw’s views into context when addressing the
plaintiff’s symptoms in the year that he says he began to use heroin.

[48]        
Still further, I observe that the plaintiff admitted to selling drugs in
December 2009 to mid-2010. At a minimum, this suggests that he was already in
an environment where drug use was prevalent. He was also in prison for the
period immediately prior to the Second Accident. Again, this suggests that
there were broader concerns with Mr. McCullum’s circumstances and
lifestyle.

[49]        
A review of the medical reports suggests that this was a difficult time
for the plaintiff. He was a young man, without any real support, until he met Ms. Renaerts
later in 2013. He had mood issues, he was in trouble with the law, he was
frequently unemployed, and his existence was often transient. Sometimes he was
homeless.

[50]        
Finally, Mr. McCullum said at trial that he turned to illegal drugs
in part because he did not, for various reasons, like the idea of using
prescription medicines. Conceptually, this issue is likely better characterized
as a failure on the part of the plaintiff to mitigate his losses because he
failed or declined to address his pain through more conventional means. Indeed,
the defendant framed it as such. I do not believe that I need to address this
particular issue, but do note the incongruity of Mr. McCullum’s position.

[51]        
Ultimately, the burden of proving that Mr. McCullum’s drug
addiction was caused by the Accidents rests with him. That burden must be satisfied
on the balance of probabilities. I do not consider that the plaintiff has
satisfied that burden.

[52]        
A few further issues remain. The plaintiff has complained of some
anxiety. He has also told Dr. Phimister that he struggled with depression.
There is no expert evidence that these conditions were caused by the Accidents,
and no claim in respect of such difficulties is advanced by counsel for the
plaintiff.

[53]        
Mr. McCullum said that the pain he struggled with affected his
appetite. There is again no support for this assertion in any of the expert
reports that were filed, and I do not consider that the plaintiff has satisfied
the burden that rests with him on this issue. In addition, this assertion
speaks to a level of pain that is not in keeping with the evidence or my
conclusions, both of which I will return to.

[54]        
The defendant suggested that the plaintiff’s injuries may have been
caused when a garage door fell on his back, or when he was put in a headlock by
the police, or when he was found under a door and there was some belief that he
may have been assaulted. These suggestions were put to various medical experts
who had had no prior information about these matters, and who considered that
it was “possible” that the plaintiff may have suffered some injury to his back
or neck in these accidents. That evidence does not assist or advance the
defendant’s position. I do not consider that any of these matters gave rise to
the physical difficulties that the plaintiff now suffers from.

Mitigation

[55]        
The defendant argues that Mr. McCullum failed to mitigate his
losses because he failed to attend three separate work-hardening and exercise
programmes that were set up for him by the Insurance Corporation of British
Columbia. The first such programme was set up in January 2009 after the First Accident.
The second was set up in 2011 after the Second Accident. The third was set up
in March 2012. All three programmes were set up with the Fraser Valley
Physiotherapy and Rehabilitation Centre in Chilliwack. The plaintiff was
discharged from each such programme for non-attendance.

[56]        
At the time he was discharged, he gave various reasons for his
non-attendance at the programmes. At trial, his reasons for not attending these
programmes were primarily directed to the length of time it took him to commute
by bus to and from Chilliwack, or to his being unable to secure transportation
to get to his training sessions, or to his being unable to afford
transportation.

[57]        
The plaintiff did, ultimately, attend an active rehabilitation programme
during the period from October 2014 to May 2015.

[58]        
In Morgan v. Galbraith, 2013 BCCA 305 at para. 78, the Court
of Appeal recently affirmed Chiu v. Chiu, 2002 BCCA 618 as the “guiding
authority” on the question of mitigation. In Chiu, the Court said:

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

[59]        
In Gregory v. Insurance Corporation of British Columbia, 2011 BCCA
144, a case where the allegation of failing to mitigate involved a refusal to
undergo cortisone injection treatment, the Court said, that it:

[56]      …would describe the mitigation test as a
subjective/objective test. That is whether the reasonable patient, having all
the information at hand that the plaintiff possessed, ought reasonably to have
undergone the recommended treatment. The second aspect of the test is “the
extent, if any to which the plaintiff’s damages would have been reduced”
by that treatment.

[Emphasis in original.]

[60]        
I do not accept the plaintiff’s reasons for not attending the various
active rehabilitation programmes that were set up for him. A review of the
records from those programmes reveals that numerous efforts were made to
contact the plaintiff and that he was either not accessible or that he gave
various reasons for not attending the programmes. Those reasons or excuses were
generally different from what he said at trial. Furthermore, there were times
that the plaintiff was on social assistance and ought, reasonably, to have been
able to get to his exercise sessions. He also accepted he made no efforts to
get monies for transportation from social assistance, or otherwise.

[61]        
In addition, Mr. McCullum’s evidence, in relation to this issue, is
not entirely reliable. He told Mr. Corcoran, a functional capacity expert,
that he had been “kicked out” of two such programmes, when he was actually
dismissed from three separate programmes. He said that he did not attend the
programmes, in part, because he did not want to cut back on his work. It is
clear, however, from the relevant records that Mr. McCullum had been told
by physiotherapy or rehabilitation personnel that they would work with Mr. McCullum
to accommodate his work schedule.

[62]        
I am therefore satisfied that the defendants did satisfy the first
branch of the two-step mitigation analysis I have described.

[63]        
The defendants are unable, however, to satisfy the second branch of that
test. Each expert emphasized the importance of exercise for the plaintiff’s
back problems. The plaintiff accepted that the programme he completed in early
2015 was of significant benefit to him.

[64]        
There is no evidence, however, that the plaintiff would be in a
different position today if he had undertaken and completed an exercise or
work-hardening programme at an earlier time. Dr. McGraw said that patients
can play “catch up”. Thus, the programme the plaintiff completed in 2015 may
have put him in the same position as he would have been in had he completed one
of the earlier programmes that had been set up for him.

[65]        
Dr. McGraw accepted that it was “possible” that Mr. McCullum
might be better off today had he gone to an earlier session, but he could not
say that that was probable. Dr. Phimister gave similar evidence.

[66]        
Under the existing legal framework, a “possibility” that Mr. McCullum
would have been in a better or healthier position had he availed himself of the
earlier exercise programmes that were offered to him, does not satisfy the
necessary legal standard.

[67]        
Even under the existing legal framework, however, it does seem clear
that Mr. McCullum’s pain and physical impairment would have been made better
in the approximately six-year period from January 2009, when he could have
first attended an active rehabilitation programme, and May 2015, when he
ultimately completed such a programme. There is, based on Mr. McCullum’s
evidence and the evidence of Dr. McGraw, the significant likelihood that Mr. McCullum’s
back symptoms would have been improved in this intervening period had he
undertaken and maintained a consistent programme of exercise. I am therefore
satisfied that the plaintiff did, to this limited extent, fail to mitigate his
loss. This conclusion is relevant to an aspect of both the plaintiff’s non-pecuniary
claim and to his past wage loss claim.

[68]        
It was argued that the plaintiff did do exercises on his own. This may
have been so, however his circumstances and lifestyle, in the years in question,
necessarily mean that this would not have been done consistently. Furthermore,
the consistent expert evidence before me supported the need for an extensive,
intensive, and rigorous programme of exercise. The fact that the plaintiff
accepted that the programme he ultimately undertook materially assisted him
speaks to the difference between such programmes and the exercises the
plaintiff had engaged in from time to time on his own.

The Plaintiff’s Physical Condition and his Prognosis

[69]        
The plaintiff’s primary concerns relate to his ongoing back symptoms,
though he says his neck still bothers him at times. I am satisfied that Mr. McCullum
continues to suffer with a degree of back pain. That conclusion is supported by
his evidence, and by the evidence of Ms. Renaerts who saw the plaintiff
having to have hot showers after work or having to do stretching exercises to
loosen his back.

[70]        
It is supported by the evidence of Mr. Olsen, a long-time friend
and a cook, who said that the plaintiff was less active than he had once been,
and that the plaintiff moved differently and more slowly in a kitchen than he
had earlier.

[71]        
It is further supported by the evidence of Ms. Macleod and Mr. McGeown,
who had worked near or with the plaintiff, and who said that they would
periodically see him grimace, or stretch, or act in some fashion that indicated
he was in pain. I recognize that Messrs. Berkis and Asprakis, who were called
by the defendant, and who also worked near or with the plaintiff at two
different restaurants, said that they had seen no such suggestions of pain or
difficulties in Mr. McCullum or in his behaviours.

[72]        
The physical findings of both Dr. Sovio and Dr. McGraw are
substantially similar. Dr. Sovio considered that the plaintiff had full
range of motion in all respects, including his back, where he had some
tenderness on palpation of his spine and complained of “discomfort” at the “extremes
of motion”.

[73]        
In July 2015, Dr. McGraw described the plaintiff’s physical
examination as unremarkable. He said that all of the plaintiff’s spine
movements in his thoracolumbar spine were “smooth and pain-free”. On a prone
back examination, he detected no spinal tenderness, and he further said that
the plaintiff’s sacroiliac joints were not tender.

[74]        
Dr. McGraw considered in the same report that the long-term
prognosis for the plaintiff’s back injury “continues to improve”. He did not
believe the plaintiff will ever require surgery. Dr. McGraw also
considered that all of the plaintiff’s acute injuries from the Accidents, other
than his back, had resolved. This included Mr. McCullum’s neck, sternum,
and left thumb injury.

[75]        
Dr. McGraw also considered that the acute pain in the plaintiff’s
back had “resolved”, but clarified in his October 2015 report that the
plaintiff had been left with an “impairment of an activity-related pain”, and a
“disability of reduced work capacity”. He accepted that these latter opinions
were based on the plaintiff’s self-report.

[76]        
He opined that he considered it unlikely that the plaintiff “will ever
be completely pain-free for unlimited physical activity”. He considered,
however, that the plaintiff’s future physical capacity could not be addressed
or determined until he stopped relying on methadone and medical marijuana.

[77]        
Dr. McGraw’s opinion aligns with the opinion of Mr. Corcoran
who performed a functional capacity evaluation. I will address this opinion in
greater detail when considering the plaintiff’s wage loss claim. That opinion,
however, concluded that the plaintiff had no impairment in his strength or his
ability to walk, stand, crouch, kneel, sit, and participate in most activities.
He did have some impairment in his ability to engage in prolonged or sustained activity
that required stooping or reaching activities, although this was alleviated
with short breaks.

[78]        
Mr. McCullum told Mr. Corcoran that he was independent with
respect to housekeeping duties, though he said that some activities, such as
vacuuming, for example, exacerbated his symptoms. I observe, however, that no
claim for future care items, such as home maintenance, is advanced on behalf of
Mr. McCullum.

[79]        
Dr. Phimister’s opinion was somewhat different. He had recorded,
in his clinical notes, that the plaintiff had some level of ongoing, albeit
intermittent pain, and that he complained of back and some neck pain. Those
complaints are interspersed with complaints about anxiety, difficulties in his
relationship with his girlfriend, depression, periodic suicidal ideation,
illegal drug use, and other concerns. On balance, his report chronicles a
higher level of ongoing pain for the plaintiff than the other experts have
referred to, and also provides a more negative prognosis for the plaintiff. It
also, for example, identifies ongoing neck pain of equal severity to Mr. McCullum’s
back pain when Dr. McGraw has opined that the plaintiff’s neck pain had
resolved.

[80]        
I placed less weight on Dr. Phimister’s report as, I believe, did
the plaintiff’s counsel. Dr. Phimister’s diagnosis that the plaintiff
suffered from a retrolisthesis in his lumbar spine as a result of the Accidents
was inaccurate. He had a view of chronic pain, and of what gives rise to
chronic pain, which was on his own evidence unconventional. Furthermore, though
Dr. Phimister treated Mr. McCullum, I consider that both Dr. McGraw
and Dr. Sovio have more expertise to address the plaintiff’s condition and
prognosis.

[81]        
Accordingly, I am satisfied that most of the plaintiff’s injuries and
symptoms arising from the Accidents have resolved. There is some prospect that Mr. McCullum’s
remaining back condition will continue to improve. His ultimate physical
capacity cannot be determined until he is drug free. I consider, on balance,
that a careful review of the opinions of Drs. Sovio and McGraw, and of Mr. Corcoran,
do not support any significant or ongoing level of pain or impairment in Mr. McCullum’s
daily living or in his performance of daily activities. He does struggle with
some pain in his back from a narrow category of behaviours or conduct if he
engages in such conduct on a sustained basis. That level of pain is, however,
neither as consistent nor as extreme as the evidence of the plaintiff has
suggested.

Non-Pecuniary Loss

[82]        
An award of general damages is intended to compensate a plaintiff for
pain, suffering, loss of enjoyment of life, and loss of amenities. A list of
factors that can influence or are relevant to an award of non-pecuniary damages
is described in Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave
to appeal ref’d [2006] S.C.C.A. No. 100.

[83]        
Prior to the Accidents, the plaintiff was a good athlete. In high school
he had enjoyed basketball and soccer, though there is no suggestion that he
continued with these sports after he left school. He also lifted weights. He
belonged to a mixed martial arts studio. He liked to jog. He also played some
tennis and he hiked with his friends.

[84]        
Since the Accidents, the plaintiff no longer engages in many of these
activities. He is somewhat more reclusive, though it is not clear that he had
kept in touch with many of his friends from his childhood. He is also, based on
his evidence and the evidence of Ms. Renaerts, more easily irritated. I
accept, as I have said, that he has had some difficulties with his sleep. When
weighing and considering these difficulties, it is important to recognize that
the plaintiff also struggles with various mood and addiction issues that are
not related to the Accidents.

[85]        
The report of Dr. Phimister, when addressing the plaintiff’s
“Current Health”, notes that the plaintiff goes to the gym, cycles, walks, and
swims regularly. Other aspects of that report confirm that the plaintiff
regularly does push-ups, sit-ups, and various other core exercises.

[86]        
Mr. McCullum has always enjoyed cooking and saw himself working as
a chef. For reasons that I will come to, he may only be able to do so on a
reduced basis or in a different capacity. The prospect that he may not be able
to work in a job that he enjoyed is compensable apart from the wage loss claim
that he has advanced.

[87]        
Counsel for Mr. McCullum argues that an award for non-pecuniary
damages of between $80,000 and $90,000 is appropriate in all the circumstances.
The defendant, in turn, provided me with a number of authorities supporting an
award of approximately $40,000.

[88]        
I consider that the Accidents caused and contributed to the neck and
back injuries that the plaintiff sustained and that those injuries are
indivisible; Bradley v. Groves, 2010 BCCA 361 at para. 37, leave to
appeal ref’d [2010] S.C.C.A. No. 337.

[89]        
I consider, on balance, that the authorities provided to me by counsel
for the plaintiff align more closely with the evidence in this case and the
circumstances of Mr. McCullum. The authorities relied on by the defendant
generally addressed cases where the plaintiff had substantially recovered by
the time of trial and faced limited ongoing difficulty. Each of Hunt v. Ugre,
2012 BCSC 1704 and Nish v. McLaughlin, 2014 BCSC 1366 serve as examples
of such cases.

[90]        
I have relied, inter alia, on the following authorities: Duda
v. Sekhon, 2015 BCSC 2393; Ferguson v. McLaughlin, 2015 BCSC 2432;
and Picco, each of which supports an award in the range proposed by the
plaintiff. I consider that an award of $80,000 would fairly compensate Mr. McCullum
for his non-pecuniary losses. I consider that that amount should, however, be
reduced by $10,000 on account of Mr. McCullum’s failure to mitigate his
losses for the six-year period prior to when he undertook an exercise programme.

[91]        
I further consider that the plaintiff sustained several divisible
injuries, including a fracture of his thumb and injuries to his knee and
sternum, as a result of the First Accident. As these injuries are divisible,
the plaintiff seeks, and I consider it appropriate, that he be awarded an additional
$10,000 in non-pecuniary damages as against the defendant in the First
Accident.

[92]        
I do not consider, based on the findings that I have made, that it would
be appropriate to “augment” the plaintiff’s award for non-pecuniary damages for
his drug use and addiction.

Past Wage Loss

[93]        
In Hardychuk v. Johnstone, 2012 BCSC 1359, Madam Justice Dickson,
as she then was, provided a summary of the legal framework that is relevant to
a past wage loss claim:

[175]    An award of damages for loss of earning capacity,
whether in the past or the future, represents compensation for a pecuniary
loss. The goal is to restore the plaintiff to the position he or she would have
occupied but for the defendant’s negligence. Accordingly, compensation for past
loss of earning capacity is to be based on what the plaintiff would have, not
could have, earned but for the accident-related injuries: Rowe v. Bobell
Express Ltd., 2005 BCCA 141; M.B. v. British Columbia, 2003 SCC 53; Gregory
v. Insurance Corporation of British Columbia, 2011 BCCA 144.

[177]    The burden of proof of actual past events is a
balance of probabilities. An assessment of loss of both past and future earning
capacity, however, involves consideration of hypothetical, not actual, events.
The plaintiff is not required to prove hypothetical events on a balance of
probabilities. Rather, the future or hypothetical possibility will be taken
into consideration as long as it is a real and substantial possibility and not
mere speculation: Athey; Falati v. Smith, 2010 BCSC 465; aff’d 2011 BCCA
45.

[178]    As with the loss of
future earning capacity, the court’s task is to assess damages for past loss of
capacity rather than to calculate them mathematically. Allowances for
contingencies should be made and the award must be fair and reasonable taking
into account all of the circumstances: Falati.

[94]        
Counsel for the plaintiff sought to advance this claim with great
precision. The underlying premise for the claim appeared to be that but for the
Accidents, and certain other clearly-identified periods or events, Mr. McCullum
would have worked on a non-stop basis from the time of the First Accident to
the time of trial. The claim was then adjusted for the amounts that Mr. McCullum
actually earned, or that he received by way of social assistance, and was then
further adjusted for taxes. Various negative and positive contingencies, such
as his being unemployed in any event, or his working on a more than full-time
basis, were then added to the ensuing figures. The plaintiff, based on this
assessment, seeks $75,000 on account of his past loss of earning capacity claim.

[95]        
I consider that this approach, in the circumstances of this case, is
fundamentally misconceived. In Hardychuk and in Ibbitson v. Cooper,
2012 BCCA 249 at para. 19, the Court explained that a past income loss is
to be addressed on the basis of the loss of capacity, rather than a
mathematical formula.

[96]        
More importantly, the approach taken by the plaintiff largely ignores
his very difficult and troubled circumstances over the past seven-and-a-half
years. He has spent almost six months in jail on account of at least four
separate incidents or breaches. He has sold drugs at different times. He has
used illegal drugs for a number of years. He has been hospitalized on several
occasions and has been extremely ill. He has had various mood issues. He has
been homeless at times. He has been fired from employment on numerous
occasions.

[97]        
It is simply unrealistic and inaccurate to pretend that, but for the
Accidents, the plaintiff would have generally worked on a consistent and
full-time basis or anything approaching such employment.

[98]        
Thus, for example, Mr. McCullum was unemployed for most of 2011. He
held one job in that year from which he was let go. He did not work from
January to June 2010. He did not work from August 2014 to June 2015. Similarly,
the plaintiff last worked in August 2015. Prior to that date he had completed a
work-hardening and rehabilitation programme. I leave aside, for the time being,
whether the plaintiff can work on a full-time basis. The reality is that the
plaintiff has done no work for more than six months in circumstances where it
is clear, on all of the evidence, that he is capable of doing some work.

[99]        
Furthermore, I note that the plaintiff has, on several occasions, worked
for months at a time on a full-time basis and has left that employment because
he was arrested or because he was fired. His employment in Hythe, Alberta, or
at Manning Park, or at Morgan’s Bistro in 2013, are examples of this.

[100]     I consider
that the plaintiff’s past loss of capacity is not nearly as significant as the
interruptions in his employment and in his work history would reflect. Instead,
these repeated interruptions to his work have often been the product of many
factors, most of which are not related to the Accidents.

[101]     I accept
that Mr. McCullum did suffer some loss of capacity and that, but for his
injuries resulting from these Accidents, he would have worked somewhat more. I
consider that an award of $25,000 fairly recognizes his past loss of capacity
and employment. I consider that that figure should, however, be adjusted by 20%
or $5,000, on account of Mr. McCullum’s failure to mitigate his losses, as
I have described.

[102]     Accordingly,
Mr. McCullum is to be awarded $20,000 on account of his past wage loss
claim. That figure still has to be adjusted for taxes – an exercise that I
expect counsel can undertake.

Future Loss of Capacity

[103]    
In Pololos v. Cinnamon-Lopez, 2016 BCSC 81, I described the legal
framework that is relevant to this head of loss and said:

[133]    The relevant legal principles are well-established:

a)         To the extent possible, a
plaintiff should be put in the position he/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, leave to appeal ref’d [2009]
S.C.C.A. No. 197;

b)         The central task of the Court
is to compare the likely future of the plaintiff’s working life if the Accident
had not occurred with the plaintiff’s likely future working life after the
Accident; Gregory v. Insurance Corporation of British Columbia, 2011
BCCA 144 at para. 32;

c)         The assessment of loss must be
based on the evidence, but requires an exercise of judgment and is not a
mathematical calculation; Rosvold v. Dunlop, 2001 BCCA 1 at para. 18;

d)         The two possible approaches to
assessment of loss of future earning capacity are the "earnings
approach" and the "capital asset approach"; Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353 at para. 7 (S.C.); and Perren v. Lalari,
2010 BCCA 140 at paras. 11-12;

e)         Under either approach, the
plaintiff must prove that there is a "real and substantial
possibility" of various future events leading to an income loss; Perren
at para. 33;

f)          The earnings approach will be
more appropriate when the loss is more easily measurable; Westbroek v.
Brizuela, 2014 BCCA 48 at para. 64. Furthermore, while assessing an
award for future loss of income is not a purely mathematical exercise, the
Court should endeavour to use factual mathematical anchors as a starting
foundation to quantify such loss; Jurczak v. Mauro, 2013 BCCA 507 at paras. 36-37.

g)         When relying on an
"earnings approach", the Court must nevertheless always consider the
overall fairness and reasonableness of the award, taking into account all of
the evidence; Rosvold at para. 11.

See also Hardychuk at paras. 192-198.

[104]     In this
case, the plaintiff argues correctly, in my view, that Mr. McCullum’s
losses should be quantified on a capital asset basis. Counsel for Mr. McCullum
also sought, as suggested in Jurczak v. Mauro, 2013 BCCA 507, to
undertake this exercise with the assistance of various mathematical aids or
guideposts in evidence.

[105]     The
central focus of the plaintiff’s thesis, in relation to this head of loss, was
based on Mr. McCullum’s diminished ability to work on a full-time basis as
a cook or chef. It was suggested that it is likely that the plaintiff will only
be able to work for perhaps 20 or 25 hours per week in this capacity in the
future. The amount being sought by the plaintiff for this part of his claim, an
amount of approximately $450,000, roughly translates to his working on a
half-time basis into the future. Inherent in this thesis, however, is the
proposition that Mr. McCullum is not capable of any other work. I accept
only portions of this submission.

[106]     The
plaintiff has, since his high school years, overwhelmingly worked in food
preparation or as a cook. The witnesses who discussed his work in those early
years describe the plaintiff as hardworking and dependable. I have said,
however, that the plaintiff has held more jobs than one would expect for
someone so young. He has generally earned $12 or $13 per hour. His employers at
Morgan’s Bistro spoke well of his skills and potential. Other witnesses or
employers, called by the defendant, described those skills as average or “adequate”.

[107]     The
proposition that Mr. McCullum suffers from some work-related impairment is
supported by the evidence of Dr. McGraw and, in particular, Mr. Corcoran.
The proposition that the plaintiff is limited to working only 20 or 25 hours
per week in the future is based entirely on Mr. McCullum’s self-report.

[108]     I have
said that I accept that Mr. McCullum’s ability to work as a cook is
somewhat constrained. That starting point is tempered or put into context by
numerous other factors:

a)       Mr. McCullum has often worked 40, 50, or
60 hours per week at times between 2008 and 2014. He did so before he undertook
a work-hardening programme, which he says has improved the condition of his
back. This fact aligns with my conclusions about the severity of the
plaintiff’s injuries.

b)       The reality is that not all restaurants have
the same workload or productivity requirements. Mr. Corcoran’s opinion
recognizes this. So too did the evidence of the plaintiff. In Mr. McCullum’s
evidence, he described some restaurants that he had worked at that were less
busy, and where he accepted that he was able to manage the workload more
easily.

c)       The underlying premise of this aspect of the
plaintiff’s claim is that he would have worked as a line cook or as a chef, or
in some similar position, for the rest of his life. This narrow job description
is not entirely consistent with the plaintiff’s expressed aspirations. Mr. McCullum,
at trial, talked about managing a restaurant. In his interview with Mr. Corcoran,
he talked about owning or running a restaurant or franchise. Such endeavours might,
again, be more manageable for him.

d)       In a similar vein, the plaintiff’s claim
undervalues and understates his potential. It is premised on his only being
able to be a cook or chef. There is no objective evidence that the plaintiff is
limited to this single category of work.

 The plaintiff is 25 years old. Though the
plaintiff was not a good student in high school, he told Dr. McGraw that
he was thinking of going to cooking school. There is no evidence or reason why
he would not be capable of this or of going to some other type of trade school.
Similarly, he told Dr. Phimister, in June 2009 and in August 2014, that he was
thinking of going back to school. Again, there is no reason that Mr. McCullum
cannot do this.

e)       This leads to a further issue or conclusion.
The range of physical activities that causes Mr. McCullum some difficulty
is relatively narrow. There are a number of types of physical activity that he
can engage in without difficulty.

 Neither party filed a vocational assessment.
Accordingly, there was no evidence that Mr. McCullum is restricted from
participating in the myriad forms of other employment that might be available
to him. The force of this assertion is bolstered by the fact that Mr. McCullum
has, in the past, earned only slightly more than the minimum wage. His income
in all such past employment has been quite consistent. It is difficult to
imagine that with reasonable effort and initiative Mr. McCullum could not
secure alternate forms of employment where, with time, he might earn similar or
higher levels of income.

[109]     The law
requires Mr. McCullum to mitigate his losses going into the future. The
law expects, absent thin-skull issues, a plaintiff to demonstrate a reasonable level
of resourcefulness, resilience, and initiative following an injury. It is
unrealistic and unacceptable for the plaintiff, who is a young man, to be so
limited as to assert that his ability to work in the future is permanently impaired
because he is restricted, in a finite way, from doing a specific type of work.

[110]     Apart from
the foregoing considerations, Mr. McCullum’s future employment may have
faced a number of negative contingencies. His past work history has been both
sporadic and erratic. His personal life has been difficult in multiple
respects. These difficulties may continue to trouble him.

[111]     On the
other hand, there was some prospect of Mr. McCullum working as a cook in a
logging or mining camp, as one of his friends has, where income levels are
higher. There was some prospect of his working in his own kitchen one day. These
things may be more difficult for him in the future.

[112]     There was
much discussion at trial of Mr. McCullum having wanted to be a “Red Seal
Chef”, a particular form of designation, though he had taken no overt steps to achieve
this designation. An individual can become a Red Seal Chef through an extended
apprenticeship, or one can abbreviate that apprenticeship by going to cooking
school. At trial, Mr. McCullum said he had planned to undertake the
apprenticeship process and then undertake certain exams. He had earlier, as I
have said, told Dr. McGraw that he was going to go to cooking school. I
consider that relatively little turns on the whole of this issue.

[113]     Ultimately,
and subject to the observations I have made, the various factors in Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) are engaged:

i)        Mr. McCullum is, by virtue of his
ongoing back issues, less capable of earning income in all types of employment
for which he is suited. His limited education does mean that he is suited for
more physical jobs.

ii)        To the extent Mr. McCullum seeks to
continue to work as a cook or chef, he is less marketable and attractive as an
employee given that he may only be capable of working part-time hours.

iii)       Mr. McCullum has lost some ability to
take advantage of certain job opportunities that may have been open to him. An
example of this would be work as a cook in a remote camp.

iv)       Mr. McCullum is less valuable to
himself as a person capable of earning income in a competitive labour market.
He has enjoyed working as a cook and his ability to do so, on a full-time
basis, is now somewhat impaired.

[114]     Having
regard to the foregoing factors and the contingencies I have identified in my
assessment of the evidence relating to Mr. McCullum’s degree of impairment,
I consider that an award of $80,000 fairly compensates him for his loss of
future earning capacity. I do not consider that any apportionment between the
two actions, or the two defendants, needs to be made. The central ongoing
injuries or difficulties that impact the plaintiff’s ability to work are
indivisible.

Cost of Future Care

[115]     An award
for the costs of future care is based on what is reasonably necessary, on the
medical evidence, to promote the mental and physical health of the plaintiff. Thus,
a plaintiff must establish both that the future care items being claimed are
reasonably necessary on the medical evidence, and that the cost of these future
care items is reasonable; Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33
at 84 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.).

[116]     The
evidence before me, from Drs. Phimister, Sovio, and McGraw, as well as from Mr. Corcoran,
confirms that an ongoing exercise regime will be important for Mr. McCullum.
Two issues are raised by this. Each expert, other than Dr. Sovio,
suggested that Mr. McCullum would benefit from working with a
kinesiologist. What is not clear is how much such assistance Mr. McCullum
reasonably requires.

[117]     Dr. Phimister
suggested ten sessions a year on an indefinite basis. Dr. McGraw suggested
two evaluations a year for two more years. Mr. Corcoran suggested that four
sessions per year should be adequate. Dr. Sovio, again, said that the
plaintiff did not require any such assistance. I had considerable confidence in
the opinions of Dr. McGraw who, I confirm, was called by the plaintiff.
Accordingly, based on the figures I was given, I consider that Mr. McCullum
requires $200 for his future interactions with a kinesiologist.

[118]     Drs.
McGraw and Phimister and Mr. Corcoran also considered that the plaintiff
should have access to a gym and pool. I was provided with the annual cost for
such facilities for adults and for seniors. Counsel for Mr. McCullum
accepted that there was some prospect the plaintiff would have joined a gym or
recreation centre in any event.

[119]     Based on
the cost I was provided, the appropriate multipliers, and the considerations I
have identified, I consider that an appropriate award for this component of the
plaintiff’s future cost claim is $10,000.

[120]     The plaintiff
also seeks the costs of his methadone and medical marijuana treatments for the
rest of his life. This is based, in part, on Dr. Phimister’s opinion that
the plaintiff will likely require methadone “indefinitely to help his pain and
also prevent relapse from his IV drug abuse”. This opinion does not extend to
the use of marijuana.

[121]     Counsel
for the plaintiff accepts that Mr. McCullum previously used marijuana and
that he may have done so in the future. He suggests that I address this concern
or prospect with an appropriate contingency. The difficulty with this part of
the plaintiff’s claim is, however, more basic.

[122]     The
starting point, when addressing this aspect of the plaintiff’s claim, is that
it contemplates a more elevated level of pain and impairment indefinitely into
the future than is supported by the evidence of Drs. Sovio and McGraw, or than
is consistent with the evidence and my findings. In addition, neither physician
proposed or recommended any ongoing medication, of any sort, to assist the
plaintiff. Conversely, this part of the plaintiff’s claim for future care costs
necessarily contemplates that the plaintiff requires, as a result of the
Accidents, the assistance of methadone and marijuana at all times even when,
for example at the present time, he is not working. This too is inconsistent
with the evidence and with my findings.

[123]     Furthermore,
the opinions of Drs. McGraw and Phimister, in their cross-examinations, were
clear. Neither would or is recommending that Mr. McCullum use medical
marijuana. Dr. Phimister, however, appears to be content to provide the
plaintiff with a prescription based on the plaintiff’s assertion to him that
marijuana assists him with his pain. The opinion of Dr. Sovio is even
stronger. He would not, based on Mr. McCullum’s addiction difficulties, prescribe
him medication.

[124]     There is
then no medical evidence that recommends that Mr. McCullum use medical
marijuana on an ongoing basis and, accordingly, I consider that this aspect of
the plaintiff’s claim lacks an adequate foundation.

[125]     The
concern in relation to Mr. McCullum’s ongoing use of methadone is similar.
Dr. Phimister accepted that individuals use methadone to address their
difficulties with drug addictions. He accepted that individuals who simply
suffer from pain would not normally be prescribed methadone. Two further points
are relevant. First, I have said that I lack some confidence in the views of Dr. Phimister.
Second, neither Dr. McGraw nor Dr. Sovio supported this aspect of the
plaintiff’s claim. Accordingly, the plaintiff’s claim for the ongoing costs of
marijuana and methadone is dismissed.

[126]     The amount
that I have awarded the plaintiff for the assistance of a kinesiologist and for
access to a gym or recreational facility, of $10,200, need not be apportioned
between the Accidents. The injuries that give rise to Mr. McCullum’s need
for such assistance are indivisible.

Special Damages

[127]     The
plaintiff claims $126 in user fees paid to a physiotherapist for massage
treatments he received following the First Accident. I consider this amount
reasonable and award this amount as against the defendant in the First Accident.

[128]     The
plaintiff also seeks $228.46 for a TENS machine that he uses to alleviate his
back symptoms when they flare up. I consider this amount reasonable and am of
the view that this amount should be paid by both the defendants in the claims that
have been advanced.

Summary

[129]     I have
awarded the following amounts to Mr. McCullum as against both defendants:

[130]     I have also
awarded Mr. McCullum a further $10,000 for non-pecuniary damages and $126
in special damages as against the defendant in the First Accident action.

[131]     I consider
that the foregoing awards are fair and reasonable in the circumstances.

[132]     I
anticipate that the parties can undertake the necessary tax and other
adjustments that are required. If they require assistance with this exercise,
they are to contact the Registry and set down a further hearing.

[133]     Unless
there are considerations that I am unaware of, in which case counsel can again
contact the Registry, the plaintiff is to have his costs.

“Voith J.”