IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120117

Docket: 44813

Registry:
Kamloops

Between:

Brent
Cameron

Plaintiff

And

Fong
Tsai Hsu and Yun Lo

Defendants

Before:
The Honourable Madam Justice Hyslop

Reasons for Judgment

[1]            
On Friday, November 7, 2008, between 4:00 p.m. and 4:30 p.m., the
plaintiff, Brent Cameron, was driving his motor vehicle, a mid-size sedan. He
had just completed his work week. He was travelling east on to Imperial Way in
Burnaby, British Columbia, when the vehicle in front of him stopped abruptly.
He was able to stop his vehicle. Looking in his rear-view mirror, he noticed
the vehicle behind him travelling towards him. Mr. Cameron braced himself as he
believed that the vehicle would not stop. The vehicle behind him, owned by the
defendant, Fong Hsu, and driven by the defendant, Yun Lo, struck the rear of
Mr. Cameron’s vehicle. As a result, Mr. Cameron’s vehicle was pushed forward,
striking the rear of the vehicle in front of him. The second collision sent Mr.
Cameron back into his seat. At the time of the collision, Mr. Cameron was
wearing his seatbelt.

[2]            
The defendants accept responsibility for the accident. Mr.
Cameron was injured as a result of the accident. The defendants disagree as to
the nature and duration of the injuries suffered by Mr. Cameron and those heads
of damages that should be awarded.

Positions

[3]            
Mr. Cameron alleges that the injuries that he suffered were to his neck,
his right shoulder, which has caused headaches, and to his hand and wrist. He
says that he has continuing complaints as a result of these injuries. In
addition, he seeks compensation for depression and anxiety that he suffers,
which he claims was caused by the negligence of the defendant, Lo, in the
accident.

[4]            
As a result of these injuries, Mr. Cameron seeks:

[5]            
The defendants acknowledge that Mr. Cameron suffered physical injuries
as a result of the accident, but dispute the claim for depression and anxiety
as caused by the accident. The defendants argue that the amount of the award
for pain and suffering should be $25,000.00 for the injuries suffered by Mr.
Cameron.

[6]            
The defendants acknowledge responsibility for special expenses, except
for the expense for counselling that Mr. Cameron had with Mr. Mercer. The
defendants accept responsibility for future care costs of $594.00.

[7]            
The defendants dispute that Mr. Cameron suffered any impaired earning
capacity.

Issues

[8]            
The issues are:

1)    Was the
depression and anxiety that Mr. Cameron suffers caused by the accident?

2)    As a result of
the accident, did Mr. Cameron suffer a diminution of earning capacity, and if
any, what is that amount?

3)    As a result of
the accident, what is the amount that Mr. Cameron should be awarded for pain
and suffering, special costs and future care costs? and

4)    In assessing the
amount of Mr. Cameron’s damages, what effect do the complaints of Mr. Cameron, regarding
his pre-existing condition of neck and shoulder pain, have on the assessment of
damages for the neck and shoulder pain, what is the effect of the motor vehicle
accident that occurred on August 27, 2007?

[9]            
I will deal with issue #4. Mr. Cameron argues that, based on Athey v.
Leonati, [1996] 3 S.C.R. 458, his pre-existing condition relating to his
neck and shoulders are not divisible.

[10]        
In Athey, Mr. Justice Major said:

[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: Snell v. Farrell, [1990] 2 S.C.R.
311; McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.).

[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: Horsley v. MacLaren, [1972] S.C.R. 441.

…

[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. To borrow an
example from Professor Fleming (The Law of Torts (8th ed. 1992) at p.
193), a "fire ignited in a wastepaper basket is . . . caused not only by
the dropping of a lighted match, but also by the presence of combustible
material and oxygen, a failure of the cleaner to empty the basket and so
forth". 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.

[Emphasis in original]

[11]        
The defendants argue that Mr. Cameron must be placed in the position he
would have been in absent the defendants’ negligence. Mr. Cameron must not be
placed in a better position than his original position. In Athey, Mr.
Justice Major comments at para. 32:

To understand these cases, and to
see why they are not applicable to the present situation, one need only
consider first principles. The essential purpose and most basic principle of
tort law is that the plaintiff must be placed in the position he or she would
have been in absent the defendant’s negligence (the "original
position"). However, the plaintiff is not to be placed in a position better
than his or her original one. It is therefore necessary not only to determine
the plaintiff’s position after the tort but also to assess what the
"original position" would have been. It is the difference between these
positions, the "original position" and the "injured
position", which is the plaintiff’s loss. In the cases referred to above,
the intervening event was unrelated to the tort and therefore affected the
plaintiff’s "original position". The net loss was therefore not as
great as it might have otherwise seemed, so damages were reduced to reflect
this. [Emphasis in original]

[12]        
Mr. Justice Major illustrates the difference in Mr. Cameron’s position
and the defendants’ position at paras. 47 and 48:

[47] This appeal involves a straightforward
application of the thin skull rule. The pre-existing disposition may have
aggravated the injuries, but the defendant must take the plaintiff as he finds
him. If the defendant’s negligence exacerbated the existing condition and
caused it to manifest in a disc herniation, then the defendant is a cause of
the disc herniation and is fully liable.

[48] Had the trial judge
concluded (which she did not) that there was some realistic chance that the
disc herniation would have occurred at some point in the future without the
accident, then a reduction of the overall damage award may have been
considered. This is because the plaintiff is to be returned to his
"original position", which might have included a risk of spontaneous
disc herniation in the future. However, in the absence of such a finding, it
remains "speculative" and need not be taken into consideration: Schrump
v. Koot, supra; Graham v. Rourke, supra. The plaintiff is
entitled to the full amount of the damages as found by the trial judge.

[13]        
Based on the evidence before me, and the opinion of Dr. Laidlow, I
conclude that Mr. Cameron had a pre-disposition to myofascial pain in the neck
and upper shoulder, approximately two years prior to the motor vehicle accident
which he was involved in in August of 2007.

[14]        
Dr. Laidlow, who at the request of Mr. Cameron provided a medical
opinion, stated:

… I do feel that Brent did
have a tendency toward myofascial pain in the neck and upper shoulder area, as
indicated by the fact that he did attend Marion Campbell prior to the two motor
vehicle accidents and had indicated to her that he had been prone to neck and
shoulder discomfort for two years. This background situation seems to have
been made worse by a motor vehicle accident on August 23, 2007. There is an
indication that these symptoms were improving, as noted by the physiotherapy
reports and as such, [I] think that Brent did sustain a musculoligamentous
strain of the cervical spine (Whiplash Associated Disorder Type II by the
Quebec Task force) with this accident that was superimposed on a tendency
toward myofascial tightness in the region. …He then was involved in this last
motor vehicle accident on November 7, 2008 and with this accident I do think he
sustained a musculoligamentous strain to the cervical spine (Whiplash
Associated Disorder Type II) superimposed on the pre-existing
musculoligamentous strain and the previous myofascial discomfort. [Emphasis
added]

[15]        
I conclude that at the time of this accident, November 7, 2008, Mr.
Cameron was prone to myofascial pain in the neck and upper shoulder area. The
assessment of Mr. Cameron’s injuries in the motor vehicle accident of November
7, 2008, will be based on his tendency towards myofascial pain in the neck and
upper shoulder. As to the accident that Mr. Cameron was involved in on August
23, 2007, I will deal with that aspect later in these reasons.

Present Personal History

Mr. Cameron

[16]        
Mr. Cameron is aged 37. He is married and has been married since October
of 2008. He is the father of a son aged two. He and his wife, Kimberley
Cameron, at the time of this trial, are expecting their second child. At
present, Mr. Cameron, his wife, and their son are living in Edmonton, Alberta.

[17]        
Mr. Cameron is a civil engineering technologist. Mr. Cameron, after
completing his two-year institutional training at Cariboo College in 2004,
obtained work experience sufficient to join the Applied Science Technologists &
Technicians of British Columbia and was certified as a civil engineering
technologist.

[18]        
Mr. Cameron works as a civil engineering technologist for Reinforced
Earth Company Ltd. (“RECO”) which manufactures and provides retaining walls. Mr.
Cameron provides supervision of the installation of those retaining walls.

[19]        
Mr. Cameron earns $65,000.00 per year. Benefits are available to him
through his employer; however, he prefers to be covered by his wife’s benefits
plan. He will be permitted to join an RRSP plan to which his employer makes
matching contributions. Mr. Cameron commutes to and from his work. One way is
about 45 minutes, which includes dropping off his son at daycare.

[20]        
As a result of his employment, Mr. Cameron travels to Fort McMurray
about once every three weeks. This requires him to remain overnight. When he
travels he travels by car or plane.

[21]        
Mr. Cameron has been applying for other jobs in the Edmonton area. From
his evidence, I have concluded that he is looking for a job with a solid
pension plan similar to the pension plan that he had when he worked for the
British Columbia Provincial Government (the “B.C. Government”). He also desires
a job that does not take him from his family for any lengthy periods of time. He
testified that he had no difficulties with the time he is away from home with
his present job at RECO.

Mrs. Cameron

[22]        
Mr. and Mrs. Cameron met each other in 2004 in Kamloops. They were both attending
Cariboo College, now TRU. Mr. Cameron was completing his course and Mrs.
Cameron was in her first year of her studies.

[23]        
Mr. and Mrs. Cameron lived together until Mr. Cameron moved to
Abbotsford. Mrs. Cameron continued her studies in Kamloops and commuted on
weekends and holidays to be with Mr. Cameron. Upon her graduation from nursing,
she moved to Chilliwack where Mr. Cameron was then residing in a home that he
owned.

[24]        
Mrs. Camerono is a registered nurse. She received her Bachelor of
Nursing in May of 2008 from Thompson Rivers University (“TRU”). She is
presently employed by the University of Alberta. She earns $78,000.00 per year.
She works five days a week, eight hours per day. It is contract employment in
that she must contract every year after review of her performance. When she
worked as a nurse in the hospital setting, she was required to work shift work,
both days and nights, ten hours per shift. When she worked as a nurse in a
hospital setting, she was also subject to reviews of her performance. She is
very happy in her employment. She has an opportunity to enter into a Master’s
program. She stated “I have a great job.”

[25]        
Her commute to work, including the time for dropping her son off at
daycare, is 40 minutes.

Employment History

[26]        
Mr. Cameron finished high school in Prince Rupert in 1992. During his
school years, he had employment with fast food restaurants, and as a bell hop
maintenance man at a local hotel. Upon graduation from high school, he was
employed by a local car dealership. The job as a bell hop and employment at the
local car dealership required lifting and physical work. Mr. Cameron was able
to perform these activities and he was fit.

[27]        
In about 1997, Mr. Cameron’s parents purchased a franchise which sold
prepackaged food. Both Mr. Cameron and his sister worked in the shop. Mr.
Cameron was his father’s assistant. This required him to perform all aspects of
the business. This included unloading inventory from a truck, organizing the
inventory and packing it into the freezer, which was kept at 25 degrees below.
In addition, he was expected to wait on customers. His parents had hoped that
he and his sister would take over the business. That did not happen. Mr.
Cameron left the employment of his parents and moved to Calgary to live with
friends. Before finding employment at a ski shop, he worked for the City of
Calgary seasonally in the landscaping yard, and worked for a tree pruning
company. He states that at that time he was trying to find his way.

[28]        
After leaving Calgary in 2002, Mr. Cameron worked as a tree planter for
two seasons. The work was piece meal and required him to pay from his earnings
the daily camp fee. The work was very physical and he worked in all kinds of
climates; cold, hot and snowing.

[29]        
In all of these jobs that I have described, Mr. Cameron was required to
do a lot of lifting. In the tree planting business he was required to pick up
boxes of seedling trees weighing 30 to 50 pounds that were delivered to his
area, and he would pack them away. He was required to have three packs of
seedlings on him, held by suspenders, one pack on each side of him and one pack
in the back. He would shovel a hole for each tree and fill it in. He had no
difficulty performing these tasks. He described the work as physically
demanding.

[30]        
In 2001, at the age of 26 or 27, Mr. Cameron realized that he had to
consider his future and decided to go back to school with the help of an
employment insurance program. He entered the civil engineering technologist course
at Cariboo College. He successfully completed that course. The course was
demanding given the number of people who started the course as compared to the
number of people who completed the course.

[31]        
His first job was with an employer in Kamloops. It was mainly a desk job
devoted to design. After about nine months he switched to another employer.
That company was Atlantis Industry Ltd. (“Atlantis”). The job was located in
the Lower Mainland. It was a sales job which included some project management.
Mr. Cameron’s territory was the Lower Mainland to the Sunshine Coast and
Vancouver Island to Port Hardy. Mr. Cameron moved to Abbotsford where he rented
a residence in which he maintained a home office. He maintained employment with
Atlantis until April 11, 2008.

[32]        
His starting wage with Atlantis was $35,000.00 per year. At the end of
his employment with Atlantis he was earning $65,000.00 per year, which included
a vehicle allowance of $10,000.00 per year. There were benefits which included
an RRSP where the company matched the employee’s contribution after a year’s
service. There were also bonuses which were paid to Mr. Cameron. He was driving
approximately 50,000 to 60,000 kilometres per year with his employment at
Atlantis. In 2007, he worked a full year of employment with Atlantis and his
gross T4 earnings were $66,453.00. Atlantis and RECO are competitors.

[33]        
Mr. Cameron quit his job at Atlantis to take a job with the Ministry of
Transportation Infrastructure (“B.C. Government”) at their Burnaby office. He
was assigned to the Gateway project. His last day at Atlantis was April 11,
2008. His first day of employment with the B.C. Government was May 5, 2008. The
Gateway project was one of the largest projects taken on by the B.C. Government
in a number of years. It was of particular interest to Mr. Cameron as it would
provide him with an opportunity to gain experience and learn more skills and
attain his goal as a project manager.

[34]        
The Gateway project required Mr. Cameron to be in the office 70% of the
time and in the field 30% of the time. He testified that he planned to stay in
his job with the B.C. Government until his retirement. Eventually he expected
to be assigned to the Langley area, which would have reduced his commute each
day.

[35]        
In 2007, Mr. Cameron applied to the B.C. Government for this job. He
learned early in 2008 that he was the successful candidate. His reasons for
taking the job were that he would have holidays, he would have a government
indexed pension, and the job that he would be working on for the next three to
four years was the Port Mann Bridge, referred to as the Gateway project. The
downside was that his annual salary was $42,000.00 per year. He anticipated there
would be an opportunity to increase his wages as his employment experienced increased.
A government pension was an important aspect of employment for Mr. Cameron as
his father had testified:

Q         All right. Did you discuss the importance of
job security with Brent?

A          Yes, I pointed
out to him that, you know, it was always important to have — to have a job
that, you know, was going to provide you some sort of pension of income when
you left the job or retired in the years down the road.

[36]        
Mrs. Cameron encouraged him to take this employment. As a result of his
employment being located in Burnaby, Mr. Cameron was required to commute to and
from his home in Chilliwack, Monday through Friday, for at least two hours each
way.

[37]        
Mr. Cameron adopted his father’s approach as did his wife. Both Mr.
Cameron and his wife viewed the job with the B.C. Government, despite the pay
decrease, as more stable and having benefits.

[38]        
By this time, Mrs. Cameron was working at the hospital in Hope as a
registered nurse full-time, doing shift work, four days consisting of two
nights, two days and then five days off. Her commute to Hope from Chilliwack
was 40 minutes each way, and at the end of her four-day shift she stated she
was exhausted.

[39]        
Mr. and Mrs. Cameron testified that matters came to a head relating to
Mr. Cameron’s job with the B.C. Government after the motor vehicle accident of
November 7, 2008. Mr. Cameron states that as a result of the motor vehicle
accident, he could no longer do the commute to Burnaby either physically or
emotionally. Mr. Cameron testified as did his wife, his mother-in-law, Mrs.
Radysh and his neighbour, Mr. Toews, that Mr. Cameron, right after the accident
became withdrawn, moody, depressed and started to drink too much alcohol. This
caused difficulties in the marriage. Mrs. Radysh only saw Mr. Cameron every two
to four months. Her evidence echoed too closely that of her daughter, Mrs.
Cameron. I have some difficulty accepting that Mr. Cameron’s behaviour was that
sudden.

[40]        
Mr. Cameron decided to apply for a lateral transfer to Kamloops
continuing his employment with the B.C. Government. There were two postings
available for lateral transfers; one in Hope and one in Kamloops – he applied
for both. On December 8, 2008, he had an interview and was successful only for
the Kamloops posting and was assigned the job of assistant bridge supervisor.

[41]        
His last day of work in Burnaby was January 30, 2009, and his first day
of work in Kamloops was February 2, 2009. Mrs. Cameron was able to obtain work
at the Royal Inland Hospital as a nurse, and on October 3, 2009, their first
child was born.

[42]        
Mr. Cameron was unable to tell the court and provided no evidence as to
when he applied for the lateral transfer to Kamloops. He had to be aware that
he was the successful candidate during the Christmas vacation of 2008, as he
and his wife completed the final renovations to prepare their Chilliwack home
for a tenant.

[43]        
At the time of accepting the lateral transfer, Mr. Cameron was earning a
little over $50,000.00 per year and described his position in Kamloops as “very
secure.” Mr. Cameron testified that his experience did not meet all the
qualifications for the Kamloops job. However, within several months he was able
to attain those qualifications.

[44]        
His job as assistant bridge inspector required him to interact with the
contractors. He was responsible to supervise daily and measure the quantity and
quality of the work and material provided by contractors. There were
confrontations at times with contractors about which Mr. Cameron felt
uncomfortable. He stated that he took far too much to heart.

[45]        
His first project was on the Adams River Bridge which permitted him to
be home daily. This project required that he climb on bridge girders and use a
large torque wrench with another person. Mr. Cameron described the job as more
supervision than inspection. He estimated that the Kamloops job required 80% in
the field and 20% in the office, the latter of which was during the winter
months.

[46]        
Mr. Cameron was assigned to another job in the Sorrento area which still
permitted him to return home each day. Thereafter, he learned that he would be assigned
to jobs in Golden and Cranbrook which would require him to be away from home
for extended periods of time.

[47]        
Mr. Cameron left his employment with the B.C. Government with the
encouragement of his wife. He found a new job in Alberta that paid more money.
Mr. Cameron listed the reasons that he left the Kamloops B.C. Government job in
the following order of importance:

1)    He said he had a
hard time fitting in with co-workers. He did not have the same connection as he
did with his co-workers in Burnaby;

2)    His next job as
assistant bridge supervisor required him to work away from home in Golden and
Cranbrook for long periods of time, and he did not want to spend that much time
away from his family; and

3)   
Financially he and his wife were just treading water.

[48]        
February 25, 2011 was Mr. Cameron’s last day with the B.C. Government in
Kamloops. He received a lump sum amount for a pay out on his pension which was
a little over $16,000.00.

[49]        
In March of 2011, Mr. Cameron, his wife and their son moved from
Kamloops to Edmonton where Mr. Cameron started his employment with RECO.

2007 Motor Vehicle Accident

[50]        
Prior to the accident of November 7, 2008, Mr. Cameron had a motor
vehicle accident in August of 2007. In that accident he was t-boned and, unlike
his accident in 2008, he did not see it coming. The physical symptoms as a
result of his accident were the pain in his neck radiating down through his back.
The truck he was driving suffered approximately $4,000.00 in damages. Mr.
Cameron stated that he was injured and felt soreness and stiffness in the
shoulder, and suffered stiffness from time to time. He suffered no emotional
psychological difficulties. With respect to the 2007 accident, in September of
2007, Mr. Cameron received three massage therapy treatments and four
physiotherapy treatments. Mr. Cameron acknowledged that prior to the August 23,
2007 accident, he had neck and shoulder complaints and this was at the time he
was working for Atlantis. Mr. Cameron stated that it was not a persistent
problem, and that it was most likely to occur after long periods of driving.

[51]        
To his satisfaction, Mr. Cameron settled his claim for this accident at
the end of December 2007 or by July of 2008. He does not recall the date. In my
view, nothing turns on it. I conclude that Mr. Cameron recovered from the 2007
motor vehicle accident and was in his pre-accident condition at the time this
accident occurred.

Incident at Christmas of 2008 and Credibility

[52]        
At Christmas of 2008, Mr. Cameron and his wife drove to Quesnel to visit
her family. Mr. Cameron was called back to Kamloops in response to a family
medical emergency. On his way back to Quesnel, he encountered an oncoming
tractor-trailer in his lane of traffic travelling at highway speed. He took
evasive action by moving over to the shoulder. His vehicle hit the delineators;
however, he was able to keep control and kept on driving. He doubted that the
tractor-trailer driver was aware of what had happened. He acknowledged it to be
a frightening situation and he said that it happened so fast he had no time to
react. His vehicle was fixed by his insurer.

[53]        
The defence claims that Mr. Cameron’s credibility is in issue. In support
of this allegation, the defendants point to Mr. Cameron’s examination for
discovery where Mr. Cameron denied having a motor vehicle accident after
November 7, 2008, and in his statement that he had physiotherapy in 2009, when
he did not. I accept both explanations given by Mr. Cameron. Mr. Cameron made
that statement that he had no motor vehicle accidents after November 8, 2007, because
there were no injuries that occurred in the accident. As to his participation
in physiotherapy, Mr. Cameron honestly believed that he had physiotherapy and
had paid for it. He acknowledges this was in error. These are minor matters and
do not impact Mr. Cameron’s credibility.

After the November 7, 2008 Accident

[54]        
After the accident, Mr. Cameron and the defendant, Lo, exchanged
information and Mr. Cameron started his drive home. He telephoned his wife and
told her that he had had the accident. On his way home he stopped and renewed
his driver’s license. It was a Friday. Mr. Cameron testified that by the time
he arrived home he was annoyed, he was angry and anxious, and felt sore on his
right side. That evening he had difficulty sleeping, and when he woke up the
next morning he felt stiff.

[55]        
He attended a walk-in clinic where he was prescribed Tylenol No. 3.
During the weekend, Mr. Cameron stated that he was progressively worse with
aches and pains persisting and the onset of headaches. The prescription was not
helping. His complaints were sore neck, sore right shoulder and arm.

[56]        
Mr. Cameron returned to work the following Wednesday which was after the
long weekend. Mr. Cameron missed no work as a result of the accident.

[57]        
Following the accident and on his return to work, he felt exhausted from
his daily commute which he attributes to the accident. He felt that during the
commute to and from his work, the pain was more intense. The headaches started
to improve. He stated that the fatigue and exhaustion caused him to lose some
focus at work.

Medical Treatment for the November 7, 2008 Accident

[58]        
On November 12, 2008, Mr. Cameron went to the walk-in clinic for the
second time. The attending physician found objective signs of Mr. Cameron’s
complaints and prescribed anti-inflammatory drugs and physiotherapy.

[59]        
Mr. Cameron was treated by physiotherapists, Mr. Froese and Ms.
Northcott, of the Fraser Valley Physiotherapy & Rehabilitation Centre. Following
the accident, Mr. Froese treated Mr. Cameron on nine occasions: November 25 and
27, December 2, 4, 16, 18 and 23, 2008 and January 6 and 15, 2009. Ms.
Northcott treated Mr. Cameron four times in January of 2009. Mr. Froese made
notes in the ordinary course of business. Mr. Cameron reported to the Fraser
Valley Physiotherapy & Rehabilitation that he had difficulty sitting,
turning and driving. The following are notes recorded by the Fraser Valley
Physiotherapy & Rehabilitation Centre (agreed statement of facts at
paragraph 19):

·       
Nov 25/08: aggravating factors: turning, sitting

·       
Jan 6/09: “States much better over Christmas/New Years as he was
off work + not driving – was even doing fairly heavy reno’s on his house
(stripping/sanding floors) w [with] no concern – today has – P as he drove to
from work.”

·       
Jan 15/09: “feels con’t improvement – even w [with] driving to
Quesnel + back – although driving still hard.”

·       
Jan 20/09: “improving, still occ. Stiffness w [with] prolonged
sitting/driving

[60]        
Dr. Del Begio was Mr. Cameron’s doctor when he lived in Kamloops prior
to his graduation from Cariboo College. On his return to live in Kamloops, Mr.
Cameron saw Dr. Del Begio on February 14, 2009, for matters not related to the
accident. The purpose of his second visit to Dr. Del Begio, on March 4, 2009,
was not related to the physical injuries he suffered in the accident, but
rather a lesion on his lip. At that visit he discussed with Dr. Del Begio only
his depression and anxiety from which he suffered, for which Dr. Del Begio
prescribed medication.

[61]        
Mr. Cameron did not discuss his physical injuries as a result of the
accident with Dr. Del Begio until August of 2009, and then in November of 2009.
Mr. Cameron’s explanation is that it was warm and that he thought his injuries
were subsiding and he would deal with them on his own. In March of 2010 and
thereafter, Mr. Cameron saw Dr. Del Begio for his difficulties relating to
depression and this continued until December of 2010, when Dr. Del Begio and
Mr. Cameron discussed his physical injuries relating to the accident.

[62]        
On December 8, 2010, Dr. Del Begio, as a result of examining Mr.
Cameron, noted:

Good range of motion of neck and
shoulders but increased pain in abduction of right shoulder beyond 110°.

[63]        
Upon the recommendation of Dr. Del Begio, Mr. Cameron took a series of
physiotherapy treatments from Mr. Frudd during the months of February and March
of 2010. Mr. Frudd was able to detect areas of injury objectively and provided
treatment and advice. Mr. Frudd recommended that Mr. Cameron be treated by Mr.
Howick, a physiotherapist with dry-needling therapy. Mr. Howick too was able to
objectively determine that Mr. Cameron had shoulder and neck difficulties. Mr.
Howick’s treatment was directed to those areas. Both physiotherapists
recommended exercises. Some of the exercises were so simple and took about 10
minutes a day. For some reason, Mr. Cameron was resistant to exercise.

[64]        
Mr. Cameron had six counselling sessions with Mr. Mercer, a clinical
psychologist, between March 4 and June 12, 2010. The purpose of the counselling
was to address Mr. Cameron’s depression and anxiety. Throughout most of the
sessions, Mr. Cameron was on anti-depressant medication prescribed by Dr. Del
Begio.

[65]        
Mr. Cameron claims that the accident caused him to become angry,
withdrawn, depressed, and anxious and to increase his consumption of alcohol
which almost cased his marriage to break down.

[66]        
Mr. Cameron alleges that the accident caused him such difficulties in
commuting to work that he was required to leave his Lower Mainland job with the
B.C. Government, which to him was his dream job and the job that he always
wanted to have, and transfer to Kamloops.

Analysis

[67]        
By December 8, 2008, Mr. Cameron had applied for the lateral transfer, and
had an interview, and he was awarded the job starting in February of 2009.
Between December 8 and Christmas, Mr. and Mrs. Cameron had decided their Chilliwack
home would be rented. They spent the Christmas vacation of 2008 finishing off
some of the renovations that they had started, readying it for tenants. This was
roughly a month and a half within the date of the accident.

[68]        
At this point in time, Mr. Cameron had no idea as to the short or long
term effects of the injuries he suffered in the accident and when he might reasonably
expect to recover, nor was there any plan in place for treatment other than massage
and physiotherapy that he had received in November and December of 2008.

[69]        
Mr. Cameron said that his wife was not in favour of the move. However,
something had to change so that he could get away from the commute. His
neighbour, Mr. Toews, stated that Mr. Cameron, before the accident, hated the
commute and that it had become worse after the accident.

[70]        
While working for the B.C. Government and prior to the accident, Mr. and
Mrs. Cameron were having financial difficulties. They re-mortgaged their home
so that they could pay their debts. The home was re-mortgaged to an amount of
at least $50,000.00, if not more. One of the debts that was required to be paid
was the truck that Mr. Cameron had purchased and which he used in his job with
Atlantis, and for which he received the car allowance. As a result, this placed
them in a position where the Camerons could not sell their home, except at a
loss. It was for this reason that they leased it. The end result is that the rent
did not cover the mortgage payment by a small amount and they have the
annoyances of being landlords.

[71]        
Mr. and Mrs. Cameron looked into (although they did not say when)
locating alternate residential accommodation in Burnaby, but they concluded
that they could not afford it.

[72]        
Both Mr. and Mrs. Cameron gave evidence that their intention was that
right after their marriage they were going to start a family. Mrs. Cameron gave
evidence that her goal was to get married and have children right away. She
stated that she and Mr. Cameron agreed that there would be shared parenting
between them and she told Mr. Cameron that she was not interested in being a
single parent as a result of her husband being away from home for employment
purposes any longer than a week.

[73]        
I have concluded that Mr. Cameron’s depression, and his decision to take
a lateral transfer to Kamloops, leaving his dream job, had nothing to do with
the accident. I conclude that Mr. and Mrs. Cameron found themselves in
financial difficulties, had plans to start a family, and could not see their
lives continuing in Chilliwack raising a family, and in particular Mr. Cameron,
having a long commute and raising a family.

Dr. Laidlow

[74]        
As with the physiotherapists, Dr. Laidlow, on March 6, 2011, found
objective symptoms of Mr. Cameron’s complaints. One of these symptoms was a
reduced range of motion of the neck to the left by 25 degrees.

[75]        
Dr. Laidlow, upon applying two tests, found a weakness in the right hand
but not the left. He found the sensation in the right arm was “slightly
different” as compared to the left arm.

[76]        
Upon examination, Dr. Laidlow found cervical paraspinal and the trapezious
were “mildly tender” on Mr. Cameron’s right side. Dr. Laidlow determined that
Mr. Cameron is prone to myofascial pain in the neck and upper shoulder area
made worse by a motor vehicle accident on August 23, 2007 that was superimposed
on a tendency toward myofascial tightness in the region. Dr. Laidlow wrote:

He then was involved in this last
motor vehicle accident on November 7, 2008 and with this accident I do think he
sustained a musculoligamentous strain to the cervical spine (Whiplash
Associated Disorder Type II) superimposed on the pre-existing
musculoligamentous strain and the previous myofascial discomfort.

[77]        
Dr. Laidlow opines that as a result of this injury, Mr. Cameron has lost
some mobility in the neck and upper right shoulder area which explains some of
his “mechanical symptoms” while sitting for prolonged periods. Dr. Laidlow
stated that the tightness in his neck and upper shoulder area “makes him prone
to some intermittent numbness in the arm.” Dr. Laidlow recommends a community-based
exercise program and details the kinds of exercises that Mr. Cameron should be
doing to lessen his symptoms. Dr. Laidlow expressed the opinion that if he were
to participate in a community-based exercise program “he will not be bothered
as much with the activities that bother him now”. Dr. Laidlow does not think
that there will be further medical problems arising from this injury, and
believes that Mr. Cameron is capable of doing all his job activities and all
activities around his home, and will be able to do this in the future. This
opinion is given specifically in response to questions posed by Mr. Cameron’s
counsel.

Activities

[78]        
Mr. Cameron’s recreational activities as he was growing up consisted of
cross-country skiing and Alpine skiing, both in which he excelled. He enjoyed
hiking, fishing and hunting. As he was growing up he preferred these activities
over team sports. He was fit and healthy enough to engage in these activities
as a young man while living in the Calgary area. In the winter he spent all his
days off and weekends getting in as much skiing as possible.

[79]        
Mr. Cameron and his wife provided picture evidence of Mr. Cameron’s
recreational activities pursued prior to the accident. Mr. Cameron undertook
home renovations, both inside and outside the Chilliwack home. The ability to
do these activities and undertake home renovations is not in dispute. However,
as the defence argues, there is very little evidence of the activities that Mr.
Cameron cannot perform. As suggested by the defence, Mr. Cameron’s focus as a
married man with a young child has shifted to child-focussed activities. Mr.
Cameron’s excuse for not following through with his exercises was lack of time.
That too is likely why he has not pursued some of his pre-accident activities.

[80]        
Mr. Cameron’s evidence is that he has less difficulty with his shoulder
and neck in warm weather than in the winter, when he is performing office
duties.

[81]        
It may be coincidental, but Mr. Cameron’s physiotherapy with Mr. Frudd
and Mr. Howick took place in February through to March of 2010, and then in
December of 2010 through to February of 2011. Those are the times when Mr.
Cameron is likely to be in the office doing desk work and not outdoors doing
his assistant bridge supervision duties.

[82]        
It would appear that Mr. Cameron seeks physiotherapy when needed, and
that is when he has pain or tightness in his neck and shoulder.

Non-Pecuniary Damages

[83]        
In support of his assessment for damages, Mr. Cameron relies on the
following caselaw:

[84]        
The defendants assess Mr. Cameron’s injuries relying on the following
caselaw:

[85]        
I have concluded that Mr. Cameron did suffer neck and shoulder injuries
as a result of the accident. As a result of these injuries he suffered
headaches. Those appear to no longer occur or are infrequent.

[86]        
I also conclude that these injuries caused Mr. Cameron difficulties in
certain seasons at which time Mr. Cameron sought physiotherapy to resolve the
symptoms.

[87]        
I have also concluded and take into consideration in assessing Mr.
Cameron’s claim for pain and suffering that Mr. Cameron, at the outset, had a
tendency to “myofascial pain in the neck and upper shoulders” [Dr. Laidlow]
several years before the 2007 accident. I also conclude that before this
accident that Mr. Cameron’s injuries from the 2007 accident were resolved. I
also conclude that Mr. Cameron has resisted doing exercises designed to assist
or improve the mobility and flexibility in his neck and in the area of his
upper shoulder.

[88]        
Both Mr. Cameron and the defendants presented evidence of pictures of Mr.
Cameron’s and the defendants’ motor vehicle after the collision and the cost of
their repair. This evidence was of little assistance. However, I do conclude
there were no significant damages to Mr. Cameron’s vehicle or that of the
defendant, Hsu. I cannot measure the force of the collision, but it was
sufficient to cause Mr. Cameron to hit the vehicle in front of him.

[89]        
In Tarzwell, Ms. Tarzwell suffered back injuries in a motor
vehicle accident, the events of which are not unlike those that occurred in
this accident. In Tarzwell, the Court found that Ms. Tarzwell was
diligent about performing stretching exercises at home and attended the gym on
a regular basis.

[90]        
Unlike Mr. Cameron, Ms. Tarzwell had constant pain and her pain
increased when she participated in soccer. Further, the pain from the injuries
caused her to fail a course at college which she was taking towards graduation.

[91]        
Ms. Tarzwell worked in a number of jobs, persevering despite pain. The
medical evidence was that upon participating in more aggressive rehabilitation
her discomfort would be reduced, but not completely resolved. The Court in Tarzwell
concluded that after considering the factors laid out in Stapley v. Hajslet,
2006 BCCA 34 that Ms. Tarzwell could no longer engage in her vigorous, athletic
activities.

[92]        
In Kaleta, the collision in which the plaintiff was involved was
serious. The vehicle was a write-off. The plaintiff felt significant pain
within an hour or so of the accident and was off work for a period of two
weeks. Upon returning to work, he worked only light duties. The plaintiff
suffered soft tissue injuries to the left side of his body, including his knee,
low back, arm, left shoulder and left side scapular neck region. The plaintiff
was a cement truck driver who had other physical duties beyond that of driving a
truck, some of which were very strenuous. This pain was daily for a certain
period of time. The plaintiff re-injured himself at work in the shoulder.
Eventually the back and knee problems were resolved, but the neck and shoulder
problems had not at the time of trial.

[93]        
In Kaleta, the Court found that his neck and shoulder problems
intensified during the work day, affected his relationship with his wife and
social relations with others. The Court found that the shoulder injury was
chronic.

[94]        
In Kardum, there were two motor vehicle accidents for which the
plaintiff sought compensation. There were soft tissue injuries to the neck,
shoulder and back, accompanied by headaches. The injuries from the first
accident were not resolved when the second accident occurred. At the time of
trial, there was some prospect of improvement in the plaintiff’s symptoms, but
the plaintiff was likely to have a measure of pain or discomfort for the
balance of his life. The plaintiff kept himself physically active,
participating in stretching, running and gym attendances. The Court concluded
that his prognosis was guarded and it was likely that there would be some improvement,
but it would be unlikely that the plaintiff would be symptom-free.

[95]        
In Berry, the plaintiff, on the day after the accident, was able,
together with two assistants, to lift gyproc sheets weighing 120 pounds. He felt
some neck pain. The injury suffered by the plaintiff was soft tissue injury to
the neck which caused some discomfort for a period of about seven months after
the accident. Madam Justice Baker concluded at para. 55:

I am satisfied that Mr. Berry has
recovered from the injuries caused by the accident. I consider that an award of
$30,000 to be adequate compensation for the temporary impact Mr. Berry’s neck
injury has had on his enjoyment of life and, in particular, the discomfort he
has experienced when lifting heavy materials at work; while engaging in
strenuous recreational activities; and during intimate relations with his
spouse.

[96]        
In Bortnik, the plaintiff was seeking compensation for a moderate
soft tissue injury and depression. The Court concluded the plaintiff had
exaggerated his injury and that there was evidence for the Court to conclude
that his depression was not caused by the accident. The Court concluded the
plaintiff sustained a minor whiplash with no residual difficulties.

[97]        
In Filimek, I found the plaintiff gave his evidence in a
straightforward manner, that he was competitive in his sporting activities and
that he wanted to get better and do all the things he had done prior to his
accident, and that he was highly motivated. Approximately a year and a half
after the accident the plaintiff resumed some his sporting activities. At trial
he continued to suffer some pain in his neck and muscle spasms, although they
were lessening. The medical evidence was that the plaintiff would not have a
long-term disability and that the plaintiff, as a result of the accident, would
not suffer further problems in the future.

[98]        
In Garcha, the plaintiff experienced some mid and low back pain,
headaches, left shoulder and left arm pain and sore wrists. He claimed that his
injuries and ongoing symptoms had and continued to impact his ability to
perform certain activities of daily living, recreational pursuits and household
duties. The accident happened in March of 2005, and by the end of 2006 the
plaintiff had returned to a nearly normal lifestyle with some flare-ups, and
had returned to many of his athletic activities but not at the same level.

[99]        
Mr. Cameron, at the time of the trial, continued to suffer from
tightness in the shoulder and neck beyond that of his pre-existing condition.
Mr. Cameron did not lose time at work and he never thought he should do so or would
do so. Mr. Cameron, as confirmed by the evidence of his father, sought medical
treatment only when there was something wrong. The evidence is that Mr. Cameron
has difficulty with his neck and shoulder when doing office work and not when working
on-site and in good weather.

[100]     Mr.
Cameron chose not to pursue exercise as recommended by Dr. Laidlow and his
physiotherapist, so it is difficult to determine the progress he would have
made had he done so. Taking that into consideration, I award Mr. Cameron
general damages in the amount $40,000.00 for pain and suffering and loss of
enjoyment of life.

Diminished Capacity of Earning Income in the Future

[101]     Mr.
Cameron seeks damages for diminished capacity of earning income in the future.
Mr. Cameron earns his living as a civil engineering technologist. Mr. Cameron,
since finishing his course, has been employed in several different aspects of
employment as a civil engineering technologist. Mr. Cameron’s first job was in
the office. His second job was on the road in sales and some project
management. His third job with the B.C. Government was mainly more in the
office and some site work. His job in Kamloops was mainly site work with little
time in the office. His present job is overseeing the installation of his
employer’s product and some travel to Fort McMurray.

[102]    
The test is set out in Perren v. Lalari, 2010 BCCA 140 at para.
32:

A plaintiff must always
prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, that there is a real and substantial
possibility of a future event leading to an income loss. If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown. The former approach will be more useful when the loss is
more easily measurable, as it was in Steenblok. The latter approach will
be more useful when the loss is not as easily measurable, as in Pallos
and Romanchych. A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment. That was the case in both Pallos and Parypa.
But, as Donald J.A. said in Steward, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss. [Emphasis in original]

[103]    
Mr. Cameron did not demonstrate that the accident would lead to future
events that would cause a loss of future income or a loss of future earning
capacity. Dr. Laidlow stated in his report:

I feel he is fully capable of
doing all of his job activities and all of his activities around his home and
will continue to be able to do this into the future.

Cost of Future Care

[104]     I award
cost of future care and an annual gym membership in the amount of $594.00.

Special Damages

[105]     I award
special damages in the amount of $971.85

Costs

[106]     Mr.
Cameron will have his costs as assessed under appendix B, scale B of the Supreme
Court Civil Rules, unless within 30 days of receiving these reasons Mr.
Cameron or the defendants wish to make further submissions as it relates to
costs.

“H.C. Hyslop J.”

HYSLOP J.