IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130503

Docket: M114166

Registry:
Vancouver

Between:

Everett Bearney
Krohn

Plaintiff

And

Bobbie Gabrielle
Weidner

Defendant

Before:
The Honourable Mr. Justice Steeves

Reasons for Judgment

Introduction

[1]            
The plaintiff seeks damages for personal injuries he received as a
result of a motor vehicle accident on October 14, 2009. Liability by the
defendant is admitted but quantum is disputed, in particular the quantum of
future care and special damages.

[2]            
According to the plaintiff, the October 2009 accident caused mechanical
neck pain, a right rotator cuff injury, an injury to his left thigh, headaches,
and soft tissue pain in both his wrists. These injuries have restricted his
recreational activities such as golf and archery. As well, he is currently 64
years old and retired. The plaintiff submits that, but for the accident, his
retirement years would have been pain free and he would have been able to be
more active.

[3]            
Non-pecuniary damages are sought by the plaintiff. Damages for future
care are also claimed, in particular for physiotherapy once a week for the rest
of the plaintiff’s life. Special damages are sought on essentially the same
basis. Damages are not sought for impairment of future earning capacity.

[4]            
The defendant does not dispute the plaintiff suffered soft tissue
injuries to the neck, right shoulder and left thigh and that he sometimes has
headaches as a result of the October 2009 accident. However, according to the
defendant, the plaintiff exaggerates the severity of these injuries. The
defendant also disputes that this is a “Golden Years” case. The defendant
accepts that non-pecuniary damages are justified but in an amount substantially
less than that claimed by the plaintiff. The amount of special damages claimed
is also disputed, as is the amount for future care.

Background

[5]            
The plaintiff is currently 64 years old. He is married and has an adult
son. Prior to the October 2009 accident he was retired from his work as an
interior designer. He lives in Vancouver and has lived and worked previously in
Hong Kong.

[6]            
The plaintiff testified that prior to the accident he had diabetes but
no other medical problems and he had an active post-retirement life. He did
cleaning around the family home as well as some maintenance and gardening in
pots.

[7]            
Golf was an important physical and social activity for the plaintiff
prior to the accident. He started playing golf in 1980 and during the golfing
season in Vancouver (from May to October) he would golf once a week with a
friend, Lloyd Pond. The plaintiff also golfed in other locations when he
traveled. Archery was also an enjoyable activity for the plaintiff before his
accident. He started this sport as a teenager and kept it up in his adult years.
About four or five times in the summer months the plaintiff would attend at an
archery club and it was an activity he could do on his own. While living in
Hong Kong he helped with the establishment of an archery club there.

The accident

[8]            
On October 14, 2009 the plaintiff was driving on a residential street in
Vancouver. He was wearing a seatbelt. As he entered an intersection the
defendant and her vehicle came from the left and struck the plaintiff’s vehicle
on the driver’s side. The plaintiff was pinned in his vehicle and had to be removed
by the attending ambulance personnel. The damage to his vehicle was extensive
enough for it to be written off.

[9]            
The plaintiff was advised by the paramedics to go directly to a hospital
but he declined because he was in shock. His wife came to pick him up and take
him home. That evening he noticed pain in his left shoulder and in his neck,
there was some “burning” where the seatbelt had been and he had difficulty
sleeping on his left side. There was also pain in his wrists that he ascribed
to holding hard onto the steering wheel at the point of impact.

[10]        
The day after the accident the plaintiff saw his family physician and
was examined. Physiotherapy treatment was recommended and started. He also
participated in a rehabilitation program to increase his strength and assist
him in dealing with his pain.

After the accident

[11]        
After the accident the plaintiff continued to have problems with his
right shoulder, wrists and neck and he also had headaches. He had not had these
problems before the accident.

[12]        
With regards to the right shoulder and neck there was pain and
restricted movement on a daily basis. The motions of turning his head and raising
his right arm above his right shoulder are difficult. The plaintiff agreed in
his evidence that the problem with the shoulder was primarily one of mobility rather
than pain. He can also raise his right arm above his shoulder if he is careful
but he explained his right shoulder strength was not what it was before the
accident. For example, he has difficulty opening a jar. The plaintiff described
weekly therapy sessions as critical to his ability to use his shoulder and neck
and to assist him with dealing with the pain.

[13]        
The plaintiff no longer has constant pain with regards to his wrists. However
when holding the steering wheel of his vehicle on a long trip he finds the pain
comes on. There is difficulty lifting objects. He agreed that there was a full
range of motion with the wrists. He testified that the pain in his wrist can
come on with no trigger such as, for example, while he is simply watching
television. The problem in the thigh is one of numbness rather than pain. In
his evidence the plaintiff described his left leg giving out. But this is not
in the expert reports and he agreed he had not told his doctors about it.

[14]        
According to the plaintiff his lifestyle has changed dramatically
because of the injuries received from the accident. He no longer has the
freedom to do anything he wants and he has to plan his days around his
limitations. He testified that, in general, “pretty much everything is forced
now.”

[15]        
The neck and right shoulder in particular are disabling. Normal
activities such as showering and getting dressed, tying shoes and eating have
been affected. The plaintiff is right-hand dominant but he will now often use
his left hand and arm to be more comfortable. Shoulder checking while driving
is difficult as is getting in and out of a vehicle. Sleeping is restricted because
he prefers to sleep on his right side but he needs to sleep on his back to be
comfortable. However, the headaches have “mostly” subsided and he gets about
one per month.

[16]        
Recreational activities have also been restricted by the injuries. The
plaintiff is not able to walk as much as he used to and he walks at a slower
rate. He also moved to a location where he and his wife do not walk as much. He
has not been able to do golf or archery since his injury and Mr. Pond confirmed
the difficulties the plaintiff has with golfing. For example swinging a golf
club at a driving range was painful. With respect to archery the plaintiff
testified that he tried to pull a bow that normally requires minimal strength and
he experienced pain in his shoulder.

[17]        
The plaintiff receives physiotherapy treatment once a week. He testified
that this is necessary because it is only physiotherapy that relieves the pain
and eases the restrictions in his neck and shoulder. After a physiotherapy
session the plaintiff has considerable relief but it only lasts for one week
and then he needs to see the physiotherapist again. He does not think he will
ever be able to stop having physiotherapy treatment and he submits that it is
imperative to the management of his symptoms. He has also obtained some benefit
from membership in a gym.

Expert evidence

[18]        
The plaintiff relies on two experts and they both were cross-examined in
the trial of this action. The defendant has not provided any expert reports or
evidence.

[19]        
Dr. Mark Adrian is an expert in physical medicine and rehabilitation. He
assessed the plaintiff on October 29, 2010 and produced two reports dated
October 29, 2010 and July 29, 2011. Dr. Adrian diagnosed mechanical neck pain,
right rotator cuff tendinopathy and soft tissue pain in the wrists.

[20]        
The prognosis and recommendations of Dr. Adrian in his first report are
as follows:

Prognosis:

In general, individuals suffering from an injury resulting in
soft tissue pain (rotator cuff tendinopathy), mechanical neck pain, or nerve
injury experience improvement over time. Some individuals, however, experience
persistent symptoms despite the passage of time. In my experience, individuals
suffering persistent soft-tissue related pain; mechanical neck pain; or nerve
deficits beyond two years from the injury date are unlikely to experience
further significant improvement.

In Mr. Krohn’s situation, roughly one year has elapsed since
the motor vehicle accident date. He experienced a degree of improvement of his
pain symptoms. The prognosis for full recovery of his symptoms is guarded at
this time. Further improvement may occur over the following year. Improvement
beyond this timeframe is less likely.

Functional Capacity:

Mr. Krohn will probably continue to experience difficulty
performing activities that place physical forces onto the painful and injured
structures involving his neck, shoulders, and wrists. Specifically, he will
probably continue to experience difficulty performing activities that require
prolonged static or awkward positioning involving his neck; heavy or repetitive
lifting; forceful pushing or pulling; forceful gripping; forceful reaching; or
twisting activities.

The prognosis for full recovery of the above functional
limitations is guarded at this time. Further improvement may occur over the
following year.

RECOMMENDATIONS:

Investigations:

X-rays involving Mr. Krohn’s neck and right shoulder could be
considered. The results of the x-rays, however, may not alter current
management.

Mr. Krohn is experiencing gradual improvement of his
symptoms. If the improvement reaches a plateau, and he experiences ongoing pain
involving his right shoulder that is functionally limiting, further evaluation
with an MRI should be considered.

Therapeutic:

Mr. Krohn participated with a course of physical therapy
and kinesiology exercise programs. He is currently performing an independent
exercise program consisting of light resisted exercises and stretching. I
encourage Mr. Krohn to continue with this exercise program. I suggest periodic
supervision by a kinesiologist or physical therapist to ensure that he
progresses the exercises in a suitable manner that does not place unnecessary
physical forces onto the painful structures involving his neck, shoulders or
wrists.

. . .

[21]        
In his second report of July 29, 2011 Dr. Adrian had the benefit of an
MRI of the plaintiff’s neck. Tendinopathy was evident on the MRI in the right
shoulder. The MRI also revealed a paralabral spinoglenoid cyst and this was
considered a potential source of shoulder pain and weakness. In his evidence
Dr. Adrian agreed that there was no damage to the bony structures of the
wrists.

[22]        
The second expert report relied on by the plaintiff is that of Dr.
Patrick Chin, an expert in orthopedic surgery. Dr. Chin assessed the plaintiff
on July 21, 2012 and his report is the same date. The plaintiff was recorded as
telling Dr. Chin that his primary complaint was right shoulder stiffness and
pain but this was not serious and it had improved by 50%. The shoulder pain was
rated by the plaintiff at 3 on a scale of 10 at rest, with activity and at
night. He also told Dr. Chin that he had no difficulties performing daily
activities and he could do chores at home without difficulty. The assessment
indicated a full range of motion of the shoulders and wrists.

[23]        
Dr. Chin’s diagnoses were: improved right shoulder and neck pain and
stiffness secondary to a soft tissue injury. There was no obvious neurologic
compromise but the underlying degenerative disc disease at C6-7 was noted. As
well, there was a right shoulder post traumatic impingement syndrome with
rotator cuff tendinitis and persistent left thigh numbness secondary to lateral
femoral cutaneous nerve palsy.

[24]        
The impressions and conclusions of Dr. Chin are as follows:

Impression and Conclusions: Based on my review of the
documents, the history and my physical examination of Mr. Krohn today, I can
conclude with reasonable probability that the subject motor vehicle accident of
August 14, 2009 resulted in the above soft tissue injuries.

In my opinion, it does not appear that Mr. Krohn had any
pre-existing conditions in these areas. However, his family physician’s reports
were only backdated to February 2009. Mr. Krohn’s own reporting noted that he
was 100% healthy in these areas pre-subject motor vehicle accident. As a
result, I arrived at the opinion that the subject motor vehicle accident was
the precipitating factor for the injuries noted above.

I would agree with Dr. Adrian’s assessment that despite the
degenerative disc disease noted at the C6-7 level and the neural compromise at
the C7 nerve root level, Mr. Krohn does not exhibit any specific neurologic
deficits on the right side. He complains primarily of soft tissue-related pain
in the right side of his neck along with shoulder discomfort. In fact, Mr.
Krohn does not note that his shoulder is “painful” but instead complains of
ongoing “restriction in motion”. His restriction in motion is not related to a
stiff shoulder but in fact, he has full passive motion but inability to elevate
his arm due to “tightness” in the right side of his neck.

I noted on the MRI scan the suggestion of a spinal glenoid
cyst in the right shoulder but based on my clinical examination today, I do not
think this is related to the subject accident. In my opinion, it is a
serendipitous finding without any correlation to symptoms or objective clinical
findings. A paralabral cyst can become symptomatic when it is large enough to
compress against the adjacent nerves resulting in muscle weakness and atrophy.
It is also usually seen in a setting of a labral (ie. the fibrocartilage ring
structure around the glenoid rim) tear.

I would also agree with Dr. Adrian’s opinion that Mr. Krohn’s
symptoms are likely plateaued and will not improve any further. At almost three
years post subject accident, my opinion is that Mr. Krohn’s left shoulder
symptoms have completely resolved and his right shoulder “stiffness” and pain
symptoms have also improved, in his own opinion, by 50%; however, it is likely
there will be some residual deficits and symptoms that will be permanent.

As far as his shoulder is concerned, one other treatment
option that Mr. Krohn could be considered for would be an ultrasound-guided
subacromial injection to his right shoulder to try to eliminate some of the
pain and inflammation in the subacromial space using a mixture of local
anesthetic and corticosteroid. In addition to a therapeutic effect, the
subacromial injection is part of the impingement test, which provides a
diagnostic type element to the condition.

As far as the left thigh numbness is concerned, this has not
changed over the last three years and as a result, I am opined that his injury
mechanism as described by Dr. Adrian is permanent.

As far as his wrists are concerned, this is not a main
concern for Mr. Krohn as it only bothers him when he has to grip objects for a
prolonged period of time. In my opinion, the wrist pain is mainly of soft
tissue origin. There are no specific joint or bony injuries or ligamentous
injury that requires further investigation.

Based on Mr. Krohn’s description of his activities of daily
living and occupation, I do not anticipate that Mr. Krohn is at any risk of
long-term or permanent disability. The main restrictions from his injuries are
his inability to return to recreational activities, such as golfing and
bowling.

Mr. Krohn did not report any issues regarding his ability to
perform his day-to-day home chores, or his work activities.

Other than the suggested
injection treatment for his right shoulder, I have no further recommendations
as far as other treatment modalities. I suspect Mr. Krohn’s mainstay of
treatment will be an ongoing active exercise program. He may be able to
utilize, from time-to-time, passive modalities, such as chiropractic treatments
or massage treatments, when he experiences a “flare” of his neck pain or right
shoulder restriction in motion.

Analysis

[25]        
As above, liability is admitted by the defendant and the issue for
consideration is the quantum of damages that is appropriate for the injuries
suffered by the plaintiff as a result of the motor vehicle accident on October
14, 2009. He seeks non-pecuniary damages, special damages and damages for
future care.

Non-pecuniary damages

[26]        
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal has
outlined the factors to consider when assessing non-pecuniary damages,

[46] The inexhaustive list of
common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that
influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

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

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

(h) impairment of physical and
mental abilities;

(i) loss of lifestyle; and

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

[27]        
In this case the plaintiff submits that non-pecuniary damages in the
amount of $80,000 are justified. The following decisions are relied on: Rhodes
v. Biggar, 2010 BCSC 762; Giles v. Canada (Attorney General), [1994]
B.C.J. No. 3212 (S.C.), (varied on appeal: [1996] B.C.J. No. 449 (C.A.).
The plaintiff was found to be contributorily negligent); Dulay v.
Lachance, 2012 BCSC 258; and Taylor v. Grundholm, 2010 BCSC 860.

[28]        
On the other hand, the defendant submits that non-pecuniary damages in
the range of $22,000 to $33,000 are appropriate. The following decisions are
relied on: Chan v. Kao, 2009 BCSC 626; Noriega v. Lewars, 2008
BCSC 1405; and Bain v. Nanji, 2000 BCSC 103.

[29]        
I accept that the plaintiff in this case has physical limitations as a
result of the October 2009 accident. He has neck and shoulder pain and a
problem with his left thigh. This causes him problems with sleep. It also
places restrictions on the activities he did before the accident. For example,
he cannot golf nor do archery any longer. He also testified that his ability to
walk was restricted, although I also note that a less ambitious walking routine
coincided with the plaintiff moving to a new residential location, one that is
not as amendable to walking. The prognosis is guarded and there is a prospect
of the plaintiff’s injuries being permanent to some extent.

[30]        
I also conclude that the plaintiff’s current injures from the October
2009 accident are not severely or even moderately disabling. He reported to Dr.
Chin that his right shoulder pain was not serious (he rated it as 3 out of 10)
and had improved by 50%. Further, the shoulder was not painful but there was
restricted movement; his evidence was that once a week he experienced a lack of
mobility in the shoulder. Dr. Chin found close to a full range of motion
in the shoulders. The problems with the wrists can arise spontaneously but they
are not frequent and they usually arise after prolonged gripping, such as driving
during a long trip. There is a full range of motion with the wrists and no bony
or other structural deficits. I find that the plaintiff’s headaches have
largely resolved. Similarly, the plaintiff testified that his left leg gives
out but there is no medical support for this because he did not consult his
doctors about it. I find that, if it is a problem, it is a minor one.

[31]        
Overall, as the plaintiff reported to Dr. Chin, he is able to carry out
the daily activities of a 64 year old man without many problems. His medication
use is the occasional use of Aspirin. As above, he has had to give up golf but
he golfed about once a week in the summer months prior to the October 2009
accident. Similarly, he has had to give up archery but he attended at an
archery range about five times a year before the accident. I acknowledge that
the accident has interfered with the plaintiff’s expectations about his
retirement. However, it cannot be said that he was an active individual prior
to the accident and that now he is severely disabled. This is not a case of
loss to a senior person of a “high magnitude” that is difficult to overstate (Giles,
supra, at para. 32). Finally, the injuries are undoubtedly
frustrating for the plaintiff, but I am unable to find that they are the cause
of any serious emotional stress.

[32]        
Overall, the plaintiff is a credible and forthright witness but the
facts of this case are not comparable to, for example, a senior plaintiff with
a significant injury justifying non-pecuniary damages in the amount of $90,000
(Taylor, supra). In light of all of the above circumstances I assess
non-pecuniary damages at $45,000.

Cost of future care

[33]        
As above the plaintiff seeks a physiotherapy session every week for the
rest of his life. He submits that this is justified because that is what he
needs to deal with the pain in his neck and right shoulder. At a cost of $90
per session, and including a discount rate, this amounts to $55,000.00. In
contrast, the defendant submits that no damages for future care are justified
or, in the alternative, an amount of $7,200 is appropriate. The alternative
amount is based on four visits a year, over 20 years, at $90 per visit.

[34]        
A useful summary of the approach to be taken when considering the cost
of future care is that of McLachlin, J. (as she then was) in a previous
decision of this court (Milina v. Bartsch, [1985] B.C.J. No. 2762),

195 . . . In Andrews [Andrews v. Grand & Toy (Alta)
Ltd., [1978] 2 S.C.R. 229], supra, Dickson J. (as he then was)
distinguished damages for cost of future care from damages for non-pecuniary
loss in the following terms at p. 603:

The money for future care is to
provide physical arrangements for assistance, equipment and facilities directly
related to the [plaintiff’s] injuries. Additional money to make life more
endurable should then be seen as providing more general physical arrangements
above and beyond those relating directly to the injuries.

196 The physical arrangements to be used in assessing cost of
future care are based on what is required to preserve and promote the
plaintiff’s health. In Andrews, supra, Dickson J. said at p. 586:

. . . to the extent, within reason,
that money can be used to sustain or improve the mental or physical health of
the injured person it may properly form part of a claim. . . .

197 In Thornton [Thornton v. Sch Dist. No. 57
(Prince George), [1978] 2 S.C.R. 267], supra, the court, in defining
"optimal care" stated at p. 609:

. . . it is clear from the medical
evidence that the term merely connotes an ongoing practical level of orderly
care in a home environment. . . .

198 If there was any doubt as to whether the award for cost
of future care must be justified on a medical basis, it was dispelled by MacDonald
v. Alderson, [1982] 3 W.W.R. 385, leave to
appeal to the Supreme Court of Canada refused. In that case it was suggested
that the plaintiff, a quadriplegic, should be awarded sufficient funds to
purchase and maintain his own house on the non-medical grounds that this would
give him a greater sense of " ‘autonomy, privacy, financial stability and
pride of ownership . . . and greater opportunities for gardening, owning a pet,
and more space for hobbies’ ". The Manitoba Court of Appeal rejected this
evidence as "subjective theorizing" and reduced the award made at
trial. The test for determining the appropriate award under the heading of cost
of future care, it may be inferred, is an objective one based on medical
evidence.

199 These authorities establish (1) that there must be a
medical justification for claims for cost of future care; and (2) that the
claims must be reasonable. On the latter point, Dickson J. stated in Andrews
at p. 586:

An award must be moderate, and fair
to both parties . . . But, in a case like the present, where both courts have
favoured a home environment, "reasonable" means reasonableness in
what is to be provided in that home environment.

200 This then must be the basis upon which damages for costs
of future care are assessed.

201 It follows that I must
reject the plaintiff’s submission that damages for cost of future care should
take into account the cost of amenities which serve the sole function of making
the plaintiff’s life more bearable or enjoyable. The award for cost of care
should reflect what the evidence establishes is reasonably necessary to
preserve the plaintiff’s health. At the same time, it must be recognized that
happiness and health are often intertwined.

[35]        
The medical justification for future care in this case is included in
the expert reports of Drs. Chin and Adrian. On this point Dr. Chin said as
follows in his report of July 21, 2012:

I suspect Mr. Krohn’s mainstay
of treatment will be an ongoing active exercise program. He may be able to
utilize, from time-to-time, passive modalities, such as chiropractic treatments
or massage treatments, when he experiences a “flare” of his neck pain or right
shoulder restriction in motion.

[36]        
In his report of October 29, 2010, Dr. Adrian said as follows:

Mr. Krohn participated with a
course of physical therapy and kinesiology exercise programs. He is currently
performing an independent exercise program consisting of light resisted
exercises and stretching. I encourage Mr. Krohn to continue with this exercise
program. I suggest periodic supervision by a kinesiologist or physical
therapist to ensure that he progresses the exercises in a suitable manner that
does not place unnecessary physical forces onto the painful structures
involving his neck, shoulders or wrists.

[37]        
There is consistency between these two opinions and I summarize them as,
first of all, supporting physiotherapy or other passive modalities such as
massage or chiropractic treatment. This is because they will be useful from
time to time for flare-ups of pain or restrictions in the shoulder and neck. Further,
the plaintiff should be encouraged to continue with his exercise programs and
they should be supervised by someone like a physiotherapist to make sure they
are suitable and not placing unnecessary forces on the structures being
treated.

[38]        
However, I note that neither doctor has opined that physiotherapy is
warranted on the scale sought by the plaintiff. At best, the medical evidence
is that physiotherapy will be useful from time to time and to ensure that the
plaintiff’s exercise programs are appropriate. As well, as Dr. Chin points out,
physiotherapy is a passive modality. It is clear that it makes the plaintiff’s
life more bearable and enjoyable but the medical evidence does not support physiotherapy
treatment once a week for the rest of the plaintiff’s life.

[39]        
I conclude that, given the history of weekly treatments and in light of
the medical evidence, an appropriate approach to physiotherapy for the
plaintiff in this case is one that provides a transition to a regime that is
medically justified. On this basis I conclude that the following is appropriate:

a)    For a period of
two months from the date of this judgment (or other agreed date) the plaintiff
is entitled to a weekly session of physiotherapy, as in the past. The purpose is
to provide the plaintiff and his physiotherapist with an opportunity to develop
a plan for exercises that can be done by the plaintiff on his own and in the
future. On the basis of $90 per session the cost for this is $720.

b)    For the period
of the next four months the plaintiff is entitled to physiotherapy treatment
once every two weeks. Again, this is an opportunity to develop an exercise plan
that the plaintiff can do on his own. The cost for this is $720.

c)     Following
the period of six months described above, the plaintiff is entitled to
physiotherapy for flare-ups of pain and restricted movement or to consult about
any necessary changes to the exercise plan. This will be for a period of 20
years and I assess the amount as $8,000.

d)    The plaintiff
seeks costs for a gym pass. As he testified, he obtained some benefit from the
exercises he did as part of a rehabilitation program following the accident. And
Dr. Adrian supports the need for an independent exercise program. I accept a
gym pass would be beneficial to the plaintiff. In these circumstances I assess
a onetime payment of $1,100 for a gym pass for approximately two years.

[40]        
The plaintiff also seeks mileage for attending his physiotherapy
appointments and the case of Liu v. Thaker, 2012 BCSC 612 is relied on. The
mileage details in that case are not clear. It appears that the plaintiff moved
from Coquitlam to Burnaby but continued to see his original doctor and
physiotherapist in Coquitlam. On this basis he claimed in excess of 760
kilometres (paras. 26, 71 – 73). The facts in the subject case are quite
different since there was no change of residence and the distances involved are
modest commuting ones for the plaintiff. I conclude that mileage costs are not
appropriate in this case.

[41]        
As above, the total cost for future care is $10,540.00.

Special damages

[42]        
The plaintiff seeks special costs in the amount of $19,704.05. This is primarily
for about 55 physiotherapy treatments in each of 2011 and 2012 and about 15 treatments
to date in 2013. It also includes a small number of acupuncture appointments
and mileage. According to the defendant, special costs of $320 in each of 2011
and 2012 are appropriate, for a total of $640.

[43]        
I note that the test for special damages is similar to that for future
care. The former must be reasonable and medical justification is a factor when
considering reasonableness. Further, while a plaintiff may be in a good
position to assess his needs, he does not have carte blanche to
undertake any and all therapies that he considers will make him feel good (Redl
v. Sellin, 2013 BCSC 581; at paras. 55 – 56).

[44]        
To a large extent the assessment of special damages in this case involves
the same difficulty as with future care costs: the medical evidence does not
support the frequency of, in particular, physiotherapy treatment of once a week
or more. In this case, the plaintiff knew in October 2010, by means of Dr.
Adrian’s letter of October 29, 2010, that an independent exercise program was
appropriate with periodic supervision by someone such as a physiotherapist. I
conclude that he also knew that the scope of the physiotherapy he was undertaking
was not supported by his doctor. Again, the test is not whether the treatment
makes the plaintiff feel better but whether it is medically justified.

[45]        
I conclude that special damages (such as physiotherapy) in this case
should be assessed on the basis of regular, weekly sessions for the first three
months after the accident and then two times a month for the next three month
period. Thereafter, physiotherapy or other treatment is appropriate on a
monthly basis. I make this conclusion on the basis of the moderate injuries of
the plaintiff at the time of the accident in October 2009 and the considerable
improvement he has made over time as described in the medical reports.

[46]        
Overall, the above calculation amounts to 40 sessions at $80 per visit. 
The plaintiff is also entitled to the cost of the MRI he had in July 2011 at a
cost of $1,450.00.  I assess total special damages in this case to be $4,650.00. 
The plaintiff’s claim for mileage is disallowed for the reasons given above
under future care. Acupuncture has been a minor treatment modality and,
therefore, I have not included it.

Summary of damages

[47]        
A summary of the damages assessed in this case is as follows:

Non-pecuniary
$45,000.00

Future care                                           $10,540.00

Special
damages $4,650.00

Total                                                     $60,190.00

[48]        
If necessary submissions can be made on the implementation of the remedy
in this case as well as costs.

“Steeves, J.”