IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130530

Docket: M119535

Registry:
New Westminster

Between:

Carver Kemle

Plaintiff

And

Danielle Elizabeth
McRae

Defendant

Before:
The Honourable Mr. Justice Abrioux

Reasons for Judgment

I:        INTRODUCTION

[1]            
The plaintiff seeks damages arising from a motor vehicle accident, which
occurred on May 29, 2007 (the “Accident”).

[2]            
Both liability for the Accident and causation with respect to the
plaintiff’s ongoing back difficulties are in issue. Significant damages are
sought including claims for non-pecuniary damages, past wage loss, future
earning capacity, special damages and cost of future care.

II:       BACKGROUND

[3]            
The plaintiff is 31 years old. He was born on May 14, 1982. He has lived
his entire life in the Fraser Valley. He currently lives with his wife Tania Bourke
on a farm property in Abbotsford, BC. Prior to this marriage, he was married to
the defendant. Together they had three children.

[4]            
The plaintiff comes from a large family. He has four siblings. As a
child and adolescent much of his life was spent outdoors. He completed high
school in June 2000. He then attended a culinary arts school. During high
school and after the completion of this course he worked as a chef.

[5]            
In 2006, as a result of having a young family, the plaintiff decided to
change occupations. He obtained employment with a general contractor, McDonald
and Ross Construction.

[6]            
McDonald and Ross’ business included performing various services for the
City of Abbotsford. In addition it would lay pipe. It also owned a nursery and
a gravel pit.

[7]            
The plaintiff was initially employed as a general labourer. He was
involved in laying pipe and “spotting machinery”. This activity consisted of
standing in trenches that were being dug for pipe and watching to ensure there
were no safety issues, such as underground wiring and cables. He described this
as “fairly intensive” labour.

[8]            
The plaintiff had always been interested in engines and machines. After
a few months working as a labourer, McDonald and Ross offered him the
opportunity to start operating machines. This included backhoes and other
equipment. Up until the time of the Accident, he regularly worked eight-hour
days. He was paid $23 per hour.

[9]            
At the time of the Accident the plaintiff had separated from the
defendant and was in the process of making arrangements to move in with his
girlfriend, Ms. Bourke, who he subsequently married in August 2009.

[10]        
Ms. Bourke lived on a 30-acre horse farm located on McTavish Road in
Abbotsford. This is where the couple currently resides.

[11]        
Prior to the Accident, the plaintiff had an active outdoor lifestyle. He
usually had access to his children three times a week, which did not include
weekends. In addition to boating activities and playing sports with his
siblings and friends, he and Ms. Bourke would ride horses and go camping.

[12]        
The plaintiff stated that he was in excellent health prior to the Accident,
but for a work injury in which he fractured his left ankle. This occurred in
April 2007 approximately six weeks before the Accident. The plaintiff had been
removing a tree that had become lodged in a fence. He stepped into a “dug out”
left after the removal of another tree. He fell down onto his side. He attended
the Abbotsford Hospital. He was initially fitted with a plaster cast and at a
later date, an air cast.

[13]        
The plaintiff received WorkSafeBC benefits for approximately five months
after the workplace injury. The Accident took place during that time frame.

[14]        
The Accident occurred in the afternoon of May 29, 2007. The defendant
had arrived at the plaintiff’s residence to leave the children with him. Ms. Bourke’s
farm was located down a long driveway from McTavish Road. A heated argument
ensued between the parties regarding a financial matter. They decided to
continue the discussion away from the farm so as not to upset the children.

[15]        
 Once they were on McTavish Road, the plaintiff pulled over onto the
shoulder of the road and the defendant stopped her vehicle behind him. They
both got out of their vehicles. They were angry. The discussion continued
without any resolution.

[16]        
The defendant then got back into her vehicle. The plaintiff testified he
turned to get into his truck. Without any warning he was then struck by the
defendant’s vehicle as she was leaving the scene. He was hit on his right leg.
This caused him to slide onto the hood of the defendant’s vehicle and contact
the windshield with his shoulder. As he fell back to the ground his left leg,
which was in a cast from the prior ankle workplace injury, hit the box of his
truck.

[17]        
The plaintiff indicated the defendant’s vehicle was then momentarily
stopped and he was wedged between it and his truck.

[18]        
He was able to stand up quickly enough to strike out at the defendant’s
rear window with his right arm as she drove away. He is left handed but was
unable to use his dominant hand since he had noticed it was painful as he was
in the process of getting up.

[19]        
The plaintiff then got into his pickup truck and returned to the farm.
His left hand was in pain. He had to maneuver the vehicle with his right hand.
By the time he got home, he was crying.

[20]        
When he was in the process of telling Ms. Bourke and some friends who were
at the property what had occurred, the defendant drove up to the house. She
asked the plaintiff if he was going to have her arrested. Some words were
exchanged between Ms. Bourke and the defendant, who then left.

[21]        
Ms. Bourke drove the plaintiff to MSA Hospital in Abbotsford. X-rays
revealed a fracture of the 4th metacarpal on his left hand. He was fitted with
a splint cast.

[22]        
The defendant testified that when she and the plaintiff decided to
continue their discussion on McTavish Road, she parked behind him on the
shoulder. She confirmed they had a discussion that became somewhat heated. This
occurred in the vicinity of the driver’s side of the plaintiff’s vehicle.

[23]        
At some point Ms. McRae told the plaintiff words to the effect of “Enough,
I’m not staying”. She returned to her vehicle. She said she went to pull out
onto McTavish Road. She did a shoulder check. When she looked back “he was right
there and I hit the brakes…. From what I remember he was walking towards me”.

[24]        
The defendant stated that the plaintiff rolled or slid off her vehicle
onto the passenger side. She could not recall if he hit the windshield. She was
“mostly scared of the whole situation” so she drove away. She testified that
she did drive to Ms. Bourke’s farm a few minutes later. “I felt obliged to
do that; I cared about him and had hit him with the car”.

[25]        
The plaintiff indicated he initially believed the injuries sustained in
the Accident were restricted to his left hand and shoulder. He wore the splint
for two to three weeks. It took one year for the injuries in his left hand to
resolve.

[26]        
The plaintiff first saw his family physician, Dr. Henderson, on June 13,
2007 that is approximately two weeks after the Accident. He did so within the
context of an appointment dealing with his workplace ankle injury. He advised
Dr. Henderson of the Accident and that he had hit the windshield with his left
hand with some force. He mentioned he had noted some back pain, which was
improving as at the time of this visit.

[27]        
On June 25, 2007, the plaintiff advised Dr. Henderson he was getting
pain radiating up towards his left lateral thigh.

[28]        
By mid-July 2007 the plaintiff was reporting left sciatic pain. In mid-August
2007 Dr. Henderson referred him to the orthopedic specialist, Dr. Sweeting.

[29]        
The plaintiff did not take any time off work because of the injuries
from the Accident since he was not working due to his WorkSafeBC claim.

[30]        
Dr. Henderson was initially of the view that the plaintiff’s back
complaints resulted from the fact he had been wearing a cast on his ankle for
some time as a result of the workplace injury. During this timeframe, the plaintiff
made a WorkSafeBC claim in relation to the lower back pain that was said to
result from the cast on his ankle.

[31]        
Over the course of the summer of 2007, Mr. Kemle underwent physiotherapy
treatments for the ankle injury. He mentioned to the physiotherapist he had a
sore back as a result of the Accident and received some treatment for this
condition as well.

[32]        
The plaintiff was cleared to return to work on September 24, 2007, and
recommenced his duties the following week. He stated this was initially
comprised of general labouring duties but after a few weeks he returned to
operating machinery. At this time he noticed his back really bothered him. This
was due to the lengthy periods of time he was sitting down. He indicated that
MacDonald and Ross were aware of the problems he was having.

[33]        
On October 29, 2007, the plaintiff sustained a second workplace injury
to his left knee. This knee had not been injured either in the earlier
workplace incident in April 2007, or at the time of the Accident.

[34]        
In late January 2008 the plaintiff was laid off from his employment with
McDonald and Ross. This was due to a shortage of work. He collected E.I.
benefits until October of that year. He indicated that although he had been
working for four months at this stage, the Accident injuries, particularly his
back, had made it very difficult for him to perform his job duties during that
time.

[35]        
The plaintiff testified he did seek other employment opportunities in
2008 but could not consider those which involved a significant physical labour
component.

[36]        
The plaintiff was treated primarily by the orthopaedic specialist Dr.
Sweeting during 2008. An MRI of the lumbar spine was performed on May 30, 2008.
It should be noted that a CT scan performed in 2007 after the Accident did show
a disc herniation on the left side at L5/S1. The 2008 MRI indicated that this
disc protrusion had resolved. There was, however, a new prolapsed or herniated right
disc together with impingement of the L5 and S1 nerve roots.

[37]        
Dr. Sweeting referred the plaintiff to the neurosurgeon Dr. Chan, the
initial assessment occurring in May 2009. The plaintiff stated that by this
time the discomfort and pain in the lower back was on “level ground…. I
accepted it the way it was”. Notwithstanding the 2008 MRI findings, Dr. Chan
did not recommend surgery, but rather a regimen of exercise.

[38]        
It was the plaintiff’s evidence that he attempted to perform as much
exercise as he could but found it difficult to do so. That was because by this time
there were now four children in his household, including Ms. Bourke’s
child. Between his family responsibilities and his work duties, he was unable
to do extra exercise but for walking on a regular basis.

[39]        
In January 2009 the plaintiff commenced work as an independent
contractor for Apollo Construction (“Apollo”). This involved installing siding
primarily on multi-unit buildings such as townhouses. His income increased and
in 2011 he had gross earnings of $65,788, which resulted in net earnings of
$36,872. The income actually available to him was more than the net amount
since, for tax purposes, a management fee of $6,000 was paid to him.

[40]        
The plaintiff continued to work for Apollo during 2009. He was still
seeing Dr. Sweeting and received epidural injections and prolotherapy
treatment.

[41]        
The plaintiff and Ms. Bourke were married in August 2009. Photos were
entered into evidence that showed the plaintiff participating in certain water
sports during a camping trip prior to the wedding. The plaintiff stated that
during this timeframe he also went horseback riding but could only participate
in the activity for approximately five minutes. His back was extremely sore
thereafter.

[42]        
In February 2010 the plaintiff was assessed on behalf of the defendants
by an orthopedic specialist, Dr. Sovio. He indicated that he told Dr. Sovio he
would take a day off work every two weeks or so due to the lower back pain. Dr.
Sovio, as did other physicians, recommended a regimen of exercise including
swimming and walking.

[43]        
A second MRI was performed on January 29, 2011. It indicated a worsening
of the degenerative changes of the facet joints at L3/4, L4/5 with a mild
circumferential disc bulge at L4/5. This latter bulge was unchanged from the
previous MRI. The L5/S1 disc protrusion noted on the right side of the earlier
MRI had resolved to be replaced by a marked central protrusion to the center,
but a little more to the left side.

[44]        
Dr. Sweeting referred the plaintiff to Dr. Chan on a second occasion,
this assessment occurring in August 2011. In January 2012, Dr. Chan performed a
discectomy on the left side at the L5/S1 level.

[45]        
It was the plaintiff’s evidence that his lower back caused him to be in
significant pain on a regular basis throughout the timeframe following the
Accident until early 2012. This included pain radiating into his left leg and
numbness in the left foot.

[46]        
Following the discectomy, the plaintiff was unable to work for Apollo
for approximately four months. Additionally, since late spring of 2012, he has taken
some occasional days off work when he either had difficulty sleeping or had
woken up with back pain. It was his evidence he has passed on work
opportunities with Apollo that involve installing heavy siding. His work focuses
on the installation of vinyl siding.

[47]        
In terms of what work opportunities he accepts from Apollo, the
plaintiff will factor in whether machines are available to move the materials,
which workers are available to assist him, whether he needs to access upper
floors by ladders and planks, etc.

[48]        
It was the plaintiff’s evidence he believes his work at Apollo to be
more secure since he underwent the operation in 2012. Prior to that point in
time, he had received indications his work was in jeopardy. As at the time of
trial, although he generally feels secure in his work, he is anxious in that he
believes he is at risk of injuring himself.

[49]        
It was the plaintiff’s evidence he continues to be affected in his
personal life by the injuries he sustained in the Accident, particularly the
lower back. He can no longer participate in sports. His wife still has horses.
He has attempted to ride on a few occasions but found it caused him too much
pain. His injuries have also affected his ability to interact with his
children. They do not understand why he cannot play with them like he used to.
He lives in fear of hurting himself. He would like to go horseback riding with
his children, particularly his eldest daughter, but is unable to do so.

[50]        
The plaintiff testified he has a good relationship with his wife “just
not an active one”. There is much work to be done on the farm where they live.
Until the summer of 2012, that is the timeframe following his recuperation from
the surgery, he was unable to assist his wife at all. He could not even mow the
lawn.

[51]        
The plaintiff was involved in another motor vehicle accident in the
summer of 2012. He was driving to his home from Cultus Lake. He and his wife
had purchased a boat which he was pulling on a trailer. Another vehicle crossed
into the lane in which he was traveling. The accident was significant in that
his truck was written off and the boat was damaged. He indicated he had a sore
left hand and neck that caused him difficulty for approximately three to four
months.

[52]        
In so far as the future is concerned, the plaintiff believes his
injuries will bother him for some time. He is now scared of being in pain.
Although the tingling in his leg and the numbness in the left foot have
resolved, his back does not feel the way it should.

[53]        
The plaintiff testified that he has had no further episodes of sciatic
pain since approximately four months following the discectomy. His ability to
sit has improved and he has not had any sciatic “flare-ups”. He testified that
there have been two separate occasions when he had stabbing pain in his back.
He still takes Percocet on a regular basis, although his use of it has
decreased in frequency over time. He is not missing as many days off work and
is now able to work longer hours.

[54]        
Notwithstanding the results of the discectomy, the plaintiff testified
his level of activity is not what it was prior to the Accident. He is unable to
ride horses. Although he is a very involved father, he is more an observer than
a participant when his children do activities with him.

[55]        
Ms. Bourke testified that although she and the plaintiff had not been
living together for a significant period of time prior to the Accident, they
had an active lifestyle which included riding horses, hiking and playing sports
at least once a week. She confirmed the plaintiff’s evidence that he was very
interactive with his children. He made no complaints of injuries or health
problems in the timeframe before the Accident with the exception of the work
incident in April 2007 when he broke his ankle.

[56]        
Ms. Bourke stated that immediately after the Accident, the plaintiff’s injuries
appeared to be only to his hand. She did not remember much else. She did recall
an incident in the timeframe following the Accident when the plaintiff
complained of severe pain in his back. This occurred when they were being
intimate. She could not be precise as to when that was.

[57]        
Ms. Bourke stated that following this incident the plaintiff appeared to
have regular problems with his back. He was uncomfortable when sitting. She
also became aware of the numbness in his foot. She did not want the plaintiff
to be in pain and, accordingly, they avoided activities such as horseback
riding. She noticed the plaintiff had more difficulty in playing with his
children, picking up the baby, etc.

[58]        
Ms. Bourke testified that she hired a friend in order to assist around
the farm and home. This was because she was performing most of these duties as
a result of the plaintiff’s back problems. She recalled an incident when she
had to mow the lawn even though she was six months pregnant. She also needed
assistance with the horses since the plaintiff could not help. She noted her
family had grown and she had commenced work outside the home in September 2012.

[59]        
Ms. Bourke took care of the plaintiff after his surgery in early 2012. She
stated there was a three to four months period of recuperation during which he
was in a significant amount of pain. She has also noticed some changes for the
better in her husband’s condition since the surgery but does not view him as
being 100%. They still avoid horseback riding. The plaintiff does not take big
risks when performing activities but he can now tolerate being in a car.

[60]        
Ms. Carla Dekker and Ms. Catherine Dick also testified. They generally
confirmed the plaintiff’s and Ms. Bourke’s evidence as to his activity level
and interaction with his family both prior and subsequent to the Accident.

[61]        
Adam Laberge who is the owner of Apollo gave evidence. His
responsibilities include procuring work for the company and then allocating it
to the various subcontractors including the plaintiff.

[62]        
Mr. Laberge has had the opportunity to observe the plaintiff on various
work sites since 2009. He has also worked alongside the plaintiff when they
were both involved in projects outside the Lower Mainland.

[63]        
Mr. Laberge stated that there are essentially two types of siding
installed on the projects in which Apollo is involved. There is lighter vinyl
siding and heavier fiber cement siding known as “hardi board”.

[64]        
According to Mr. Laberge, after the plaintiff commenced working for
Apollo in early 2009, there were greater opportunities which developed for him
over time. That is because his skill set improved. His view of the plaintiff
was “he has always done what was needed to be done to get the job done”.

[65]        
Mr. Laberge referred to two out-of-town jobsites where he worked with
the plaintiff. He stated he required someone who he had confidence could
perform on a daily basis. “He did everything I expected”. Mr. Laberge did state
that on occasion he would notice that the plaintiff appeared to “labour” later
on in the day. He would also observe an occasional grimace. From a production
perspective he considered the plaintiff to be “as good as the rest” of the
other people who were working.

[66]        
When the plaintiff underwent his surgery in 2012, Mr. Laberge
essentially left it up to him to fix his return date. When the plaintiff did
return, Mr. Laberge noticed that he was moving gingerly for a period of time.
He made lighter work such as window preparation available to him. This lighter
work paid less.

[67]        
Mr. Laberge could not indicate the precise timeframe when the plaintiff
was assigned lighter duties. In any event his work performance as at the time
of trial, being the latter part of January 2013, was as good as it was when he
first started working for Apollo in 2009.

[68]        
Mr. Laberge noted that prior to the surgery the plaintiff would ask for
days off from time to time. He also had difficulty during long workdays. The
plaintiff has not asked for any days off since he returned to work following
the surgery. In addition he has also not hesitated to take on whatever work he
is offered by Mr. Laberge.

III:      THE MEDICAL EVIDENCE

[69]        
Although the plaintiff was treated by the specialists Dr. Sweeting and
Dr. Chan, the medical evidence led on his behalf at the trial was limited
to his family physician, Dr. Henderson.

[70]        
The expert evidence led by the defendant consisted of Dr. Sovio, an
orthopedic specialist and the neurosurgeon, Dr. Padilla. Dr. Sovio assessed the
plaintiff in February 2010. Dr. Padilla did not assess the plaintiff. Rather,
his opinions were based on what was referred to as a “document review”. This
review included the clinical notes and records of Dr. Henderson, Dr. Sweeting,
and Dr. Chan together with the various imaging which had taken place, including
the 2007 CT scan and the 2008 and 2011 MRIs. Dr. Padilla reviewed not just the
reports of this imaging but also the scans themselves.

DR. HENDERSON

[71]        
The first reference in Dr. Henderson’s clinical notes to the plaintiff’s
complaint of back pain was on June 13, 2007. This was approximately two weeks
after the Accident.

[72]        
Dr. Henderson’s report of January 10, 2011, states in part:

Summary: this man had a motor
vehicle accident May 29, 2007 in which he suffered fracture of the base of the
left 5^th metacarpal which improved over the subsequent three months.
He also had a prolapse of L 4 – 5 and L5 S1 disc with left sciatica which
continues to give him problems with flair ups and time loss from work.

[73]        
In his report of August 27, 2012 Dr. Henderson concludes:

Summary: this man’s persisting left sciatica from his MVA May
29, 2007 had completely resolved following his operation with Dr. Chan on
January 12, 2012. He is left with some residual lumbar back pain, which Dr.
Chan felt was of no significant consequence and encouraged full activities.

From the motor vehicle accident July 7, 2012 Mr. Kemle
suffered a soft tissue injury to his left hand, soft tissue injury to his neck
and lower back. When last seen his back symptoms had resolved. He was still
having some residual discomfort in the left posterior neck with excellent range
of movement and normal x-rays.

 I would expect his neck
symptoms to gradually improve over the next several months and unlikely to
cause any disability.

[74]        
In his report of October 15, 2012, Dr. Henderson stated that although
the plaintiff no longer had sciatic complaints, he continued to have some
residual back pain for which he was taking approximately 10 Percocet tablets a
month.

[75]        
During his evidence at the trial, Dr. Henderson confirmed his opinion
that the Accident was the cause of the plaintiff’s low back problems that required
the 2012 surgery. The basis for this opinion was the plaintiff’s complaints of
back pain shortly after the Accident. He also indicated that the back pain
could have been the result of the cast which the plaintiff was wearing
following the workplace injury.

[76]        
Dr. Henderson did state he would defer to the specialists with respect
to the issue of the causation of the disc prolapse or herniation. That is
because the specialists had more expertise than he did.

DR. SOVIO

[77]        
Dr. Sovio’s opinions are summarized in his report of February 22, 2010.
They include:

·      
the plaintiff had disc degeneration and mechanical back
discomfort. This will generally respond to core strengthening and exercising.
The natural history of mechanical back pain is that episodes of discomfort last
for a few days and then settle down;

·      
he strongly recommended an exercise program;

·      
it was difficult to know whether the Accident caused the
plaintiff’s back problems or whether these were related to other factors such
as walking with crutches because of the ankle fracture and deconditioning from
being off from work;

·      
the plaintiff had mechanical back pain with disc bulging and disc
herniation. The disc herniation did not appear to cause any significant nerve
root impingement “but I suspect that the pain radiating down the leg at times
or the numbness is related to irritation or inflammation of the S1 root”.

[78]        
In his report, Dr. Sovio noted “it would appear that [the plaintiff’s]
back pain started a few months after the accident”. This statement was in
error.

[79]        
On cross-examination, Dr. Sovio stated that although it was possible the
Accident could be a cause of the plaintiff’s back injury, he would have
expected to see the symptoms arise “fairly quickly thereafter, that is 24
hours” if that were the case. This was to be contrasted with a chronic
condition that was part of the degeneration in the spine and which would have
developed in any event. In his view it was the degenerative process which was
causing the plaintiff’s mechanical back pain.

DR. PADILLA

[80]        
Dr. Padilla’s opinions are set out in his report of October 29, 2012.
They include:

·      
the plaintiff had a combination of injuries that might have
contributed to the subsequent back pain and left leg complaints;

·      
“perhaps” this started with the workplace injury of April 2007.
The fracture of the ankle and the subsequent discomfort of the leg and
inability to walk, as well as the possible twisting of the leg, might have
resulted in an injury, not only of the ankle, but of the S1 joint and
subsequent ligaments, related to the lumbosacral area. “This soft tissue injury
might have been temporarily aggravated by the motor vehicle accident of May 29,
2007”;

·      
it was “difficult to directly correlate the disc injury and
prolapse, with this accident, or the previous April WorkSafe related incident.”
This was due to the fact the plaintiff had evidence of multi-level facet joint
and disc degeneration on the MRI investigations. “It is a well-known medical
fact that the majority of disc prolapses do resolve spontaneously, with or
without conservative treatment”;

·      
the CT scan performed on October 28, 2007, suggested pathology on
two levels, including a focal central and left sided disc herniation.
“Curiously, an MRI performed on May 30, 2008 shows a complete resolution of the
left L5/S1 disc prolapse, in-keeping with the most common natural history of
disc disease”;

·      
this MRI showed pre-existing degenerative changes of the facet
joints at the L5/S1 level, as well as the level above;

·      
these degenerative changes were noted on the second MRI performed
on January 29, 2011. This suggests that “Mr. Kemle’s back pain is most likely
related to a combination of pre-existing degenerative changes of the lumbar
spine, affecting not only the facet joints, but the discs themselves”;

·      
the degenerative changes in the plaintiff’s spine continued and
changed again by 2011 as documented by the second MRI that showed a
“re-formation on the left L5/S1 disc prolapse”. This finding corresponded with
the exacerbation of symptoms that year;

·      
by May 2012 Mr. Kemle had returned to work and his condition was
settling down, leaving him with residual degenerative back pain;

·      
Mr. Kemle’s condition was complicated by the motor vehicle
accident of July 7, 2012. This accident was apparently of greater severity
than the accident of May 2007. He sustained further injuries to his neck and
possibly the lumbar spine and this incident may continue to exacerbate his
residual back pain.

[81]        
On cross-examination, Dr. Padilla stated that most discs with signs of
degeneration would eventually give rise to “troubles, one way or the other”.
This was to be contrasted with a traumatic injury to the disc where he would
expect the patient to have pain almost immediately. Had this been Mr. Kemle’s
situation, it would probably have been visible on the CT scan which was taken
in the timeframe following the Accident. This, however, was not the case.

[82]        
Dr. Padilla noted that although the CT scan performed in 2007 did show a
disc herniation on the left side at L5/S1, the 2008 MRI showed that this disc
problem had resolved. At that time, Dr. Chan did not find any reason to perform
a discectomy. Accordingly, if the disc herniation on the left side had been
aggravated by either the workplace incident or the Accident, it had resolved by
2008, only to re-occur in 2011.

[83]        
In Dr. Padilla’s opinion, if the Accident had caused the herniation, he
could not understand why it would have resolved by 2008 and then re-appear in
2011. “The only common denominator is that he went back to his original job”.
An alternative would be another injury.

IV:      THE APPLICABLE LEGAL PRINCIPLES

[84]        
These were recently summarized by Mr. Justice Voith in Brewster v. Li,
2013 BCSC 774:

[77]     In cases of negligence, the plaintiff must
establish: (1) that the defendant was the “cause in fact” of the damage
suffered and (2) that the defendant was a “proximate cause” of the damage, “in
other words, that the damage was not too remote from the factual cause. … The
remoteness inquiry assumes that but for the defendant’s wrongful act, the
plaintiff’s loss would not have occurred, but places legal limits on the
defendant’s liability” (Hussack v. Chilliwack School District No. 33,
2011 BCCA 258 at para. 54, 19 B.C.L.R. (5th) 257).

[78]     The plaintiff must establish causation for both
injury and loss. If a defendant did not cause an injury, (s)he is not
liable for the losses flowing from that injury. Even if a defendant did cause
an injury, (s)he is not liable for any losses or damages that were not caused
by the injury. In Blackwater v. Plint, 2001 BCSC 997 at para. 364,
93 B.C.L.R. (3d) 228 [Blackwater BCSC], Chief Justice Brenner, as
he then was, adopted the following dichotomy between “injury” and “loss”:

"injury" refers to the initial physical or mental
impairment of the plaintiff’s person as a result of the [defendant’s act],
while "loss" refers to the pecuniary or non-pecuniary consequences of
that impairment.

[79]     The basic principle of tort law is that the
defendant must put the plaintiff back in the position she would have been in
had the defendant’s tortious act not occurred (Athey v. Leonati, [1996]
3 S.C.R. 458 at para. 32). The corollary of this principle is that the
defendant need not compensate the plaintiff for any loss not caused by his/her
negligence or for “debilitating effects of [a] pre-existing condition which the
plaintiff would have experienced anyway” (Athey at
para. 35).

[80]     Since the burden is on the plaintiff to prove
causation, she must establish that the defendant’s tortious act caused both
an injury (i.e. her pain disorder and/or her depression) and a resulting
loss (e.g. non-pecuniary loss or lost wages). “The former is concerned
with establishing the existence of liability; the latter with the extent of
that liability” (Blackwater BCSC at para. 363). In the case
at hand, if the plaintiff cannot establish that one of her injuries was caused
by the MVA, then she cannot recover from the defendant for the losses that
flowed from that injury. Additionally, if the plaintiff cannot establish that
the injury caused by the defendant, in turn, caused a certain loss, then she
cannot recover from the defendant for that loss.

[81]     The test for causation in Canada is the “but-for”
test (Bradley v. Groves, 2010 BCCA 361 at para. 37, 8 B.C.L.R.
(5th) 247; Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21-22,
[2007] 1 S.C.R. 333; Blackwater v. Plint, 2005 SCC 58 at para. 78,
[2005] 3 S.C.R. 3 [Blackwater SCC]; Clements v. Clements, 2012
SCC 32 at para. 8, [2012] 2 S.C.R. 181). To assess whether the defendant
caused an injury, the trial judge asks if, without the defendant’s tortious
act, the injury would have resulted. If the answer is “yes”, the defendant is
not liable for the injury or the losses flowing from it (Athey at
para. 41). If the answer is “no”, the defendant is liable to the plaintiff
for the whole of the losses flowing from the injury (Athey at
paras. 22 and 41).

[82]     Once causation for an injury is established, the
defendant is liable to the plaintiff for all of the loss(es) flowing
from that injury. The losses “flowing” from an injury are those losses which
the plaintiff proves, on a balance of probabilities, would not have occurred
“but-for” the defendant’s act (Blackwater SCC at para. 78; Smith
v. Knudsen, 2004 BCCA 613 at para. 26, 33 B.C.L.R. (4th) 76).

[83]     It is also necessary to recognize
that this case engages both “thin skull” and “crumbling skull” principles. Both
these principles were succinctly summarized in Athey:

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

[35]   The so-called "crumbling skull" rule simply
recognizes that the pre-existing condition was inherent in the plaintiff’s
"original position". The defendant need not put the plaintiff in a
position better than his or her original position. The defendant is
liable for the injuries caused, even if they are extreme, but reed not
compensate the plaintiff for any debilitating effects of the pre-existing
condition which the plaintiff would have experienced anyway. The defendant is
liable for the additional damage but not the pre-existing damage:
Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages
for Personal Injuries and Death (9th ed. 1993), at pp. 39-40.
Likewise, if there is a measurable risk that the pre-existing condition would
have detrimentally affected the plaintiff in the future, regardless of the
defendant’s negligence, then this can be taken into account in reducing the
overall award: Graham v. Rourke, supra; Malec v. J.C. Hutton
Proprietary Ltd., supra; Cooper-Stephenson, supra, at
pp. 851-852. This is consistent with the general rule that the plaintiff
must be returned to the position he would have been in, with all of its
attendant risks and shortcomings, and not a better position. [Emphasis in
original.]

[84]     Recent cases from both
the B.C. Court of Appeal and B.C. Supreme Court continue to paraphrase this
language. Some examples include: T.W.N.A. v. Canada (Ministry of Indian
Affairs), 2003 BCCA 670 at paras. 26-37, 22 B.C.L.R. (4th) 1; Zacharias
v. Leys, 2005 BCCA 560 at paras. 13-21, 219 B.C.A.C. 88; Penland v.
Lofting, 2008 BCSC 507 at paras. 93-97, 60 C.C.L.T. (3d) 265; Carr v.
Simpson, 2010 BCSC 1511 at paras. 113-117.

[85]        
In so far as the plaintiff’s “original position” is concerned, the
British Columbia Court of Appeal in T.W.N.A. v. Canada (Ministry of Indian
Affairs), 2003 BCCA 670, noted:

[28] …. a pre-existing condition, whether it is quiescent
or active, is part of the plaintiff’s original position.

The Court goes on, at
para. 48, to say:

[48] …. Whether manifest or not, a weakness inherent in a
plaintiff that might realistically cause or contribute to the loss claimed
regardless of the tort is relevant to the assessment of damages. It is a
contingency that should be accounted for in the award. Moreover, such a
contingency does not have to be proven to a certainty. Rather, it should be
given weight according to its relative likelihood.

V:       ADVERSE INFERENCE

[86]        
The legal principles on this issue were discussed by Saunders J.A. in Buksh
v. Miles, 2008 BCCA 318:

[31] The general proposition long applied in British
Columbia, stated by Mr. Justice Davey in Barker v. McQuahe
(1964), 49 W.W.R. 685 (B.C.C.A.), is that an inference adverse to a litigant
may be drawn if, without sufficient explanation, that litigant fails to call a
witness who might be expected to give supporting evidence. Further, said Mr.
Justice Davey at 689, a plaintiff seeking damages for personal injuries “ought
to call all doctors who attended him in respect of any important aspect of the
matters that are in dispute, or explain why he does not do so”.

[32] It seems to me that the tactic of asking for an adverse
inference is much over-used in today’s legal environment, and requires, at the
least, a threshold examination by the trial judge before such an instruction is
given to the jury.

[33] A judge trying a case with a jury is bound to instruct
the jury as to the applicable law, and thereby to assist the jury in its
consideration of the evidence and determination of the facts. Whether an
adverse inference is drawn from failure to call a witness is a question for the
trier of fact. In this case, I cannot say the trial judge erred in the content
of the instruction she gave the jury on the matter of adverse inferences. However,
it bears reminding that the delivery of medical care is not now as it was in
1964 when Mr. Justice Davey made his comments in Barker. There is,
today, a proliferation of “walk-in” medical clinics where the role of the
“walk-in” clinic physician may be more limited than was the role of a family
physician in 1964. Further, even people who have a family doctor may attend one
or more such clinics as a matter of convenience, but still rely upon their
family physician for core medical advice and treatment. The proposition stated
by Mr. Justice Davey does not anticipate this present model of medical care.  Likewise,
the discovery process available to both sides of a lawsuit is not now as it was
in 1964 when, in explaining his view on the need to call all treating
physicians, Mr. Justice Davey referred to the professional confidence between a
doctor and the patient. Today, the free exchange of information and provision
of clinical records through document discovery raises the possibility that an
adverse inference may be sought in circumstances where it is known to counsel
asking for the inference that the opinion of the doctor in question was not
adverse to the opposite party. 

[34] Taking the admonition of Mr. Justice Davey to the
extreme in today’s patchwork of medical services raises the likelihood of
increased litigation costs attendant upon more medical reports from physicians
or additional attendances of physicians at court, with little added to the
trial process but time and expense, and nothing added to the knowledge of
counsel.  Perhaps the idea that an adverse inference may be sought, on the
authority of Barker, for the reason that every
walk-in clinic physician was not called fits within the description of
“punctilio” that is no longer to bind us, referred to by Mr. Justice Dickson
in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, in a different
context. 

[35] In this environment, and bearing in mind the position of
a lawyer bound to be truthful to the court, it seems to me there is a threshold
question that must be addressed before the instruction on adverse inferences is
given to the jury:  whether, given the evidence before the court, given
the explanations proffered for not calling the witness, given the nature of the
evidence that could be provided by the witness, given the extent of disclosure
of that physician’s clinical notes, and given the circumstances of the trial
(e.g., an initial agreement to introduce clinical records that work contrary to
the inference, or incorporation of that witness’s views or observations in the
report of a witness called by the other side) a juror could reasonably draw the
inference that the witness not called would have given evidence detrimental to
the party’s case. Where, as here, the trial started on the basis that all
records should be before the jury, and ended with a request for an instruction
on adverse inferences, and when both counsel have explained the failure to call
the witness or witnesses by referring to their own assessment of the utility or
need for the evidence, the answer to the threshold question I have stated is
not self-evidently affirmative. In this case, in my view, the judge herself
should have heard the explanations, considered the degree of disclosure of that
witness’s files and the extent of contact between the party and the physician,
received submissions and determined whether a reasonable juror could draw the
inference sought before giving the instruction to the jury for its
consideration in its fact finding role. If not, the instruction had no place in
her charge to the jury.

[87]        
The defendant submits that an adverse inference should be drawn in that
neither the plaintiff’s treating orthopedic surgeon, Dr. Sweeting, nor his
treating neurosurgeon, Dr. Chan, were called to give evidence on the issue of
the causation of the plaintiff’s herniated disc.

[88]        
The plaintiff submits no adverse inference should be drawn. That is
because the clinical records, operative reports and imaging utilized by Dr. Sweeting
and Dr. Chan were fully disclosed. The records were also available to Dr. Sovio
and Dr. Padilla. In addition, Dr. Henderson incorporated portions of Dr. Sweeting
and Dr. Chan’s consultation reports into his reports.

[89]        
I accept the plaintiff’s submissions on this issue. I conclude it
cannot be inferred that Dr. Sweeting and Dr. Chan were not requested to provide
experts’ reports because they would have been detrimental to the plaintiff’s
case on the issue of causation: see Bouchard v. Brown Bros. Motor Lease
Canada Ltd., 2011 BCSC 762 at paras. 120-122.

[90]        
Even if I were prepared to draw such adverse inferences, I do not need
to rely upon such inferences to determine the issue of causation.

VI:      DISCUSSION

A: Liability

[91]        
The defendant admits she was responsible for the Accident by not driving
with due care and attention as she pulled out from behind the plaintiff’s
vehicle to drive away. Her position, however, is that the plaintiff was
contributorily negligent to the extent of at least 25% since he knew, or ought
to have known that the defendant would be driving past his vehicle.

[92]        
I do not agree. The plaintiff was there to be seen at all times. On the defendant’s
own evidence she had just finished completing a shoulder check when she drove
away. The plaintiff was right in front of her. Had she been paying greater
attention she would not have struck the plaintiff. I find her 100% responsible
for the Accident.

B: The Injuries: Findings of Fact and Conclusions on the Evidence

[93]        
On the basis of all the evidence, I find the plaintiff has not
established that the herniated disc and sciatica, which resulted in Dr. Chan
performing a discetomy in January 2012, are causally related to the Accident.
In that regard I accept the evidence of Dr. Sovio and Dr. Padilla over that of
Dr. Henderson. I have also considered the following:

(a) the initial onset of back pain
was first reported to Dr. Henderson approximately two weeks after the Accident;

(b) Ms. Bourke did not relate the
first complaints of back pain to the Accident;

(c) on June 25, 2007, the plaintiff
described pain radiating up to his left thigh from his ankle;

(d) on July 11, 2007, although Dr.
Henderson diagnosed sciatica on the left side, he noted that the plaintiff had
an excellent range of back movement. The following three visits pertained to
the ankle which had been injured in the workplace incident in April 2007;

(d) Dr. Henderson originally
attributed the low back pain to the April 2007 workplace injury;

(e) the herniated disc shown on the
October 28, 2007, CT scan was no longer evident when the MRI of the plaintiff’s
back was performed in May 2008;

(f) the plaintiff sought no
treatment for his lower back from either Dr. Henderson or Dr. Sweeting
between March 2008 and January 2009. At that time he had another flare-up of
his sciatic symptoms that occurred when he was walking at work.

[94]        
The plaintiff’s “original position” included:

 (a) asymptomatic degeneration of the spine at
several levels;

(b) a left-ankle injury. Due to the
treatment received including a cast, this injury resulted in a period of
inactivity and deconditioning. Even if the Accident had not occurred, the
plaintiff was at a real risk of developing some lower-back symptoms as a result
of the workplace injury. This is shown by both the plaintiff and Dr. Henderson
initially attributing the low-back injury to that workplace injury.

[95]        
I find that the Accident caused the following injuries to the plaintiff:

(a) a fracture to the fifth
metacarpal of the left hand. The symptoms relating to this injury were resolved
within one year of the Accident;

(b) soft-tissue injuries to the
neck and back which were also largely resolved within one year of the Accident.
I do find, however, that these injuries did affect the plaintiff’s day-to-day
functioning on a diminishing basis for approximately one year thereafter, that
is until approximately the summer of 2009.

[96]        
I find that to the extent the plaintiff had difficulties or complaints
in relation to his lower back from the date of the first anniversary of the
Accident, being the end of May 2008 onwards, these complaints were not causally
related to the Accident with the exception of the occasional complaint as
described in paragraph 95(b) above. Rather, they were the result of the natural
progression of the degenerative changes in his lower back and the physical
nature of his duties at work.

C: Assessment of the Plaintiff’s Damages

[97]        
It is within the context of the legal principles set out above, the
findings of fact I have made, and the conclusions I have reached, that the
plaintiff’s damages should be assessed.

 (i) Mitigation

[98]        
The defendant submits that the plaintiff failed to mitigate his losses
by not following the recommendations of his medical advisers and Dr. Sovio.
This advice was to the effect that he should increase his level of exercise,
particularly in relation to strengthening his core muscles.

[99]        
The applicable principles are summarized in Fox v. Danis, 2005
BCSC 102 at paras. 35-37, aff’d 2006 BCCA 324:

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

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

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

[100]     The
defendant has not, in my view, satisfied the onus on her to establish that the
plaintiff failed to mitigate his damages. That is because:

·      
I have found that the injuries caused by the Accident were
symptomatic for approximately one year, that is, to the end of May 2008;

·      
during this timeframe, the plaintiff was employed for several
months in a physically demanding occupation. In addition he was having medical treatments.

I do not find it unreasonable that under these
circumstances and for that timeframe he was not more proactive in pursuing an
aggressive exercise program.

(ii) Non Pecuniary Damages

[101]    
In Jackson v. Jeffries, 2012 BCSC 814, Greyell J. summarized the
law with respect to non-pecuniary damages:

[77]      In Trites, Madam Justice Ker outlined the
purpose and principles of non-pecuniary damages at paras. 188-189.

Non-pecuniary
damages are awarded to compensate the plaintiff for pain, suffering, loss of
enjoyment of life and loss of amenities. The compensation awarded should be
fair and reasonable to both parties …

For the purposes
of assessing non-pecuniary damages, fairness is measured against awards made in
comparable cases. Such cases, though helpful, serve only as a rough guide. Each
case depends on its own unique facts …

[Citations
omitted.]

[78]         In Stapley
v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined the factors to be
considered when assessing non-pecuniary damages at para. 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).

[79] The assessment of
non-pecuniary damages is necessarily "influenced by the individual
plaintiff’s personal experiences in dealing with his or her injuries and their
consequences, and the plaintiff’s ability to articulate that experience": Dilello
v. Montgomery, 2005 BCCA 56 at para. 25.

[102]     The
plaintiff seeks damages for pain and suffering in the range of $100,000 to
$120,000. This position is predicated on a finding that the Accident caused a
significant injury to the low back greatly affecting the plaintiff’s
functioning and enjoyment of the amenities of life. He submits that as a result
of the Accident, he remains in continual back pain almost six years after the
Accident.

[103]     The
defendant submits that the injury to the broken finger warrants an award of
approximately $15,000: Scheier v. 558879 BC Ltd., 2005 BCSC 1811 at
para. 38. In so far as soft-tissue injuries are concerned, she relies on Gozra
v. Wuderlich, 2009 BCSC 114, where $35,000 was awarded for a mild to
moderate soft-tissue injury to the back and shoulder and a temporary
aggravation of previously asymptomatic degenerative changes to the lumbar
spine. In Gozra, the period of aggravation was approximately 12
to 18 months with a steadily reducing level of pain and suffering thereafter.

[104]     The
plaintiff also seeks damages for loss of household capacity. The issue arises
as to whether this claim, if it is properly compensable, should be included in
the award for non-pecuniary damages or form the basis of a separate award.

[105]     I accept
that the plaintiff is entitled to a modest award for loss of housekeeping
capacity for approximately a year following the Accident. I assess that at $5,000.
In my view, the approach followed in Szymanski v. Morin, 2010 BCSC 1, is
appropriate in this case. Accordingly, I shall include this amount in my
assessment of non-pecuniary damages.

[106]     This case
is somewhat similar to Sandher v. Binning, 2012 BCSC 1000, where the
plaintiff was awarded $40,000 in non-pecuniary damages for injuries sustained
in a motor vehicle accident including soft tissue injuries to his back, neck,
chest and shoulder, and two fractured fingers. Of course, an assessment for
non-pecuniary damages is always highly fact-specific and is to be done on a
case by case basis.

[107]     Taking
into account my findings on causation and the claim for loss of housekeeping, I
award $50,000 under this head of damages.

 (iii) Past Income Loss and Past Loss of Earning
Capacity

[108]     Claims for
damages for past and future loss of earning capacity are based on the
recognition that a plaintiff’s capacity to earn money is an asset that has been
taken away: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at paras. 23-24.

[109]     The plaintiff’s
position is to the effect that at the time of the Accident he was employed as a
heavy equipment operator with McDonald and Ross. He was earning $23 per hour
and worked an average of 85-90 hours every two weeks.

[110]     The
plaintiff acknowledges he was on medical leave due to the work related  ankle
injury. He says he was able to return to work in late September 2007 and
attempted for a period of four months to return to his full-time regular
duties. He was unable to do so due to his Accident-related injuries. He was
then laid off in mid-January 2008 from McDonald and Ross.

[111]     It was not
until January 2009 that the plaintiff commenced working with Apollo. It is his
position that although he attempted to find work in 2008, his Accident-related
injuries prevented him from working in jobs that were available.

[112]     The
plaintiff also seeks damages for the income loss in relation to his four months
of recovery after his spinal surgery in January 2012.

[113]     In total
he seeks approximately $127,500 “gross” under this head of damages.

[114]     The defendant’s
position is that this head of damages is only relevant if the court finds that
the plaintiff’s injuries causally related to the Accident continued to affect
him into 2009 and beyond.

[115]     In light
of my findings referred to above, I am substantially in agreement with the
defendant’s position.

[116]     I have
found, however, that the Accident-related injuries did affect the plaintiff
until approximately one year after the Accident and intermittently thereafter.

[117]     The
plaintiff has not established that the termination of his work with McDonald
and Ross in January 2008 resulted from the Accident-related injuries.
Notwithstanding this, I do accept that he may have been more hesitant to accept
work that involved a heavy labouring component in 2008 due to the soft-tissue
injuries sustained in the Accident.

[118]     As a
result of my findings in relation to the causation of the plaintiff’s injuries,
I do not accept that the defendant is responsible for any pecuniary losses in
relation to loss of income or earning capacity after the first anniversary of
the Accident, being May 29, 2008.

[119]     Damages of
this kind are an assessment, not a mathematical calculation. In light of the
conclusions which I have reached, I award the plaintiff $15,000 under this head
of damages.

 (iv) Loss of Future Earning Capacity

[120]     The
applicable legal principles have recently been summarized in Rahim v. Al Jundi,
2013 BCSC 855 at paras. 186-192. When I apply those principles to the
conclusions I have reached, it follows that this aspect of the plaintiff’s
claims is dismissed.

 (v) Cost of Future Care

[121]     The
purpose of awarding damages for the cost of future care is to compensate for a
financial loss reasonably incurred to sustain or promote the mental and/or
physical health of an injured plaintiff. The cost must be justified as
reasonable in the sense of being medically required or justified and in the
sense that the plaintiff will be likely to incur them based on the evidence. Erickson
v. Sibble, 2012 BCSC 1880 at paras. 316-317; Simmavong v. Haddock,
2012 BCSC 473 at paras. 125-128.

[122]     The
plaintiff seeks $5,000 under this head of damages based on the recommendation
of his treating physician that ongoing conservative treatment in the form of
exercise, swimming and walking will assist in managing the plaintiff’s ongoing
back pain. He says this can best be achieved through a recreational-centre
membership and rehabilitation program.

[123]     In light
of my conclusions regarding the causation of any ongoing symptoms in relation
to the plaintiff’s back condition, it follows that this claim is dismissed.

 (vi) Special Damages

[124]     The
plaintiff seeks $1,131.68 in relation to physiotherapy, medical supplies,
medications and transportation expenses incurred since the Accident.

[125]     The defendant
does not take issue with the amount of the expenses but submits that a portion
has not been established by the plaintiff to be causally related to the
injuries sustained in the Accident.

[126]      The
out-of-pocket expenses incurred until the end of January 2009 total approximately
$250. Accordingly, I award $250 under this head of damages.

VII:     CONCLUSION

[127]     The
plaintiff is awarded the following:

[128]     Subject to
any factors pertaining to costs, which either party has leave to bring to my
attention, the plaintiff is awarded his costs at Scale B.

“Abrioux
J.”