IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Torchia v. Siegrist, |
| 2015 BCSC 57 |
Date: 20150115
Docket: 44427
Registry:
Kamloops
Between:
Tony
Torchia
Plaintiff
And
Jacqueline
Marie Siegrist
Defendant
Before:
The Honourable Madam Justice Hyslop
Reasons for Judgment
Counsel for the Plaintiff: | M.L. Sadden |
Counsel for the Defendant: | J.A. Jakel |
Place and Date of Trial: | Kamloops, B.C. June 23 – 27, and |
Place and Date of Judgment: | Kamloops, B.C. January 15, 2015 |
Contents
CONCLUSIONS REGARDING MEDICAL
EVIDENCE
LOSS OF FUTURE EARNING CAPACITY
Multi-Disciplinary Pain Program
offered by Welcome Back Clinic
Fitness Facility Membership and
Access to a Kinesiologist
Sit/Stand Desk and Ergonomic Chair
Nabilone (Synthetic Marihuana)
Nucynta ER (Tapentodal Hydrochloride)
Future Physiotherapy and Massage
Therapy
INTRODUCTION
[1]
This is an assessment of damages for injuries suffered by the plaintiff
as a result of a motor vehicle accident. Liability is admitted.
THE ACCIDENT
[2]
On December 30, 2008, at 12:30 p.m., the plaintiff, Mr. Torchia, was on
his way to work at Walmart. He was driving his motor vehicle south on 8th
Avenue in Kamloops, British Columbia. His intention was to turn left onto
Fortune Drive, which was governed by traffic lights. The light was red. Mr.
Torchia came to a full stop behind a vehicle in front of him. He was waiting for
the light to turn green with his foot on the brake. He was wearing his
seatbelt. He looked in his rear-view mirror and, as he did, the rear of his
vehicle was struck by a minivan driven and owned by the defendant, Ms.
Siegrist. Mr. Torchia estimated that the minivan was travelling between 20 and
30 kilometres per hour (kph). Upon impact, his vehicle moved forward, but it
did not hit the vehicle in front of him.
[3]
The plaintiff presented Ms. Siegrists version as to how the accident
occurred through her examination for discovery and a statement given by her on
January 27, 2009. It was not intended to put liability in question, nor did it.
Ms. Siegrist estimated that she was travelling at 20 kph. She testified that
she was travelling on 8th Avenue, intending to turn left on Fortune Drive. As
she drove up to the intersection, the light was turning green. She stated that
Mr. Torchias vehicle started to move forward. She then realized she was going
to hit his vehicle, so she steered into the median. Her vehicle bounced off the
median and she hit the rear of Mr. Torchias vehicle.
[4]
Mr. Torchia testified that the damage to his vehicle was minimal,
consisting of scrapes to the bumper and spider cracks. The cost of repair was between
$400.00 and $500.00.
[5]
Mr. Torchia testified that upon impact, his body went forward and back.
Initially, he felt pain on both sides of his neck and felt some pain in his
shoulder, in his back, leg and calf. He stated his neck was the most painful.
AFTER THE ACCIDENT
[6]
Mr. Torchia described himself in a state of shock but, despite this, he
got out of his vehicle and spoke to Ms. Siegrist, who was accompanied by her
daughter in the front passenger seat of the minivan. They were both crying. He
asked Ms. Siegrist what was the hurry. Ironically, she said she was on her way
to Walmart. After exchanging information, Mr. Torchia continued on his way to
work with the minivan following him.
[7]
Mr. Torchia punched in at work, staying only one half hour. He then made
his way to the emergency department of the hospital and saw a doctor who
advised him to go home and take Tylenol. Within three or four days of the
accident, Mr. Torchia, as a result of becoming dizzy and nauseous, went to the
urgent care department of the hospital. He was seen by a doctor who prescribed
a narcotic for pain and recommended massage therapy.
[8]
Soon after the accident, Mr. Torchia had two massage therapy sessions.
Mr. Torchia testified that these two sessions of massage therapy were of little
assistance in alleviating his pain in his back.
INJURIES
[9]
Mr. Torchia claims damages for the following injuries to his:
·
neck;
·
shoulder;
·
mid-back;
·
lower-back; and
· left
leg.
[10]
The neck and shoulder injuries were resolved within three weeks from the
date of the accident.
[11]
The injury to his lower back is the most significant. The injury to his
leg is an extension of the injury to his lower back. Whether he suffered a
separate injury to his mid-back is in dispute.
[12]
The issues are causation and damages. This is an assessment of damages
as to the extent and nature of Mr. Torchias injuries.
[13]
Mr. Torchia seeks the following heads of damages:
·
non-pecuniary;
·
past wage loss agreed at $9,484.66;
·
special damages there is a dispute about six items where there
is no agreement;
·
loss of housekeeping capacity;
·
loss of earning capacity; and
·
future care costs.
POSITIONS OF THE PARTIES
[14]
Mr. Torchia alleges that the injuries he sustained in the accident have
forever changed his life, he is in chronic pain and his condition will worsen
as he becomes older. He claims that all aspects of his life have been affected
as a result of the injuries he suffered in the accident, including his work and
social life.
[15]
Mr. Torchia argues that he has suffered a herniated disc at the L4-5 of
his spine with impingement to the nerve root. This, he argues, will cause
further problems to his spine in the future.
[16]
Ms. Siegrist acknowledges that Mr. Torchia was injured in the accident.
She states that the force in the collision was minor and that the pain that Mr.
Torchia describes is disproportionate to the nature of the collision.
[17]
Ms. Siegrist argues that initially there was some evidence of L4-5
vertebrae of the spine as having been herniated as a result of the accident.
However, the evidence confirms that is not correct and that Mr. Torchia
sustained instead soft tissue injuries in the accident. Ms. Siegrist concedes
that Mr. Torchias low back pain and leg pain are likely resultant from
accident. However, she says the mid-back pain does not relate to the accident.
Ms. Siegrist argues that Mr. Torchia has over-stated his pain and his level of
disability.
[18]
Further, Ms. Siegrist argues that Mr. Torchia has failed to mitigate his
damages by failing to pursue treatment based on the advice of his doctors.
BACKGROUND
[19]
Mr. Torchia was born and raised in Kamloops. He is 40 years old. He
graduated from high school in 1992. He described himself as an average student,
although he was on the honour roll during the last three years of high school.
[20]
Mr. Torchia has had employment as a clerk at a newspaper, at a retail
rental business and at a wine and beer store. He also worked for about eight
months for the rail company, Rocky Mountaineer.
[21]
Mr. Torchia received a tourism certificate from a local college in
Kamloops and worked in the tourism business briefly. He was let go in 1998 and
subsequently worked for a grocery chain.
[22]
In 2000, Mr. Torchia took some math courses at Thompson Rivers
University intending on pursuing a computer programmer course. He did not
pursue this program, as he obtained part-time employment with Walmart in 2000
which became full-time employment in 2001. At the time of the motor vehicle
accident, Mr. Torchia was employed by Walmart. His intentions are to continue with
that employment.
[23]
Over the years, Mr. Torchia has received promotions from his employer. As
of January 2014, he is an assistant manager and has responsibility for the
inside and outside garden centre as well as the toy, sporting goods,
automotive, and the paint and hardware departments. This came with a raise. He
now makes $50,000 per year and is eligible for bonuses.
[24]
Mr. Torchia is not married. He resides in a home that he owns. His
parents reside in a home across the street from him. His home has a self-contained
suite. At the time of trial, he had a roommate residing in his home who Mr.
Torchia claims rents only a room from him. Despite this, the roommate had full
use of Mr. Torchias home.
COMPLAINTS OF MR. TORCHIA
[25]
Mr. Torchia described his pain as constant, never-ending, and at times a
dull ache. He was prescribed medication to alleviate his pain. Mr. Torchia
described his pain as mid-back pain, below the shoulder blades and more to the
left. His low back pain, which he describes as the most painful, was located at
the belt line. He described his leg pain as going into his toes.
[26]
Mr. Torchia testified that he used to enjoy walking, bike riding and
fishing. He testified the he is unable to pursue these activities as a result
of the accident. Mr. Torchia stated that he enjoyed cooking and it was
confirmed by others that he is a good cook. He testified that, as a result of
the accident, he could not pursue this enjoyment and share this interest
socially with friends.
TREATMENT
[27]
Mr. Torchia testified that after the day of the accident he made several
trips back to the hospital and was treated at a walk-in clinic relating to his
back and leg injuries. He did not see his family doctor until February 8, 2009,
as he was unable to obtain an appointment until then. At trial, Dr. Thomasse
testified that it was now every two months.
[28]
Dr. Thomasse recommended physiotherapy for Mr. Torchias injuries. Mr.
Torchia attended physiotherapy on five occasions in 2009: March 13 and 16,
April 27, and May 4 and 13. No further physiotherapy was undertaken by Mr.
Torchia.
[29]
Mr. Torchia had a chiropractic treatment from Dr. Karpuk on one
occasion.
[30]
Mr. Torchia underwent a number of investigations by various doctors,
which included x-rays, two MRIs, two nerve root blocks, electrodiagnostic
studies, epidural blocks and facet joint blocks, the latter of which, according
to Mr. Torchia, was very painful.
[31]
Mr. Torchia was also referred to Dr. de Wet for pain management.
MEDICAL OPINIONS
Dr. Robert Thomasse
[32]
Dr. Robert Thomasse is Mr. Torchias family doctor and has been so since
February 11, 2008. Dr. Thomasse, stated in his report dated February 11, 2014,
that the x-rays taken at the hospital on January 7, 2009 show a mild
degenerative disc disease of his C5-6, mild facet arthritis of C5-6 to C7-T1,
and mild scoliosis of his left upper thoracic spine. Up until this time, Mr.
Torchia had been diagnosed with a neck sprain. Dr. Thomasse examined Mr.
Torchia on February 24, 2009. As a result of this examination, he found normal
range of motion of Mr. Torchias cervical spine and lumbar spine. Dr. Thomasse
found Mr. Torchia to be slightly tender over the paraspinal muscles along his
neck. On that day, Dr. Thomasse found Mr. Torchias left knee was normal, but
he had a positive Straight Leg Raising test on his left side. Dr. Thomasses
diagnosis was that Mr. Torchia was having soft tissue injuries and left sided
sciatica. In order to address Mr. Torchias pain and difficulties with
sleeping, medication was prescribed. Dr. Thomasse recommended physiotherapy,
which Mr. Torchia pursued, as mentioned above.
[33]
On February 26, 2009, Mr. Torchia was seen at the emergency department of
the Kamloops hospital complaining of calf pain. An x-ray of the lumbar spine
showed mild degeneration disc disease at vertebrae T10-11 and T11-12 and disc
space loss.
[34]
On June 24, 2009, a CT scan was ordered. According to Dr. Thomasse it
showed a moderate sized left L4-5 disc herniation.
[35]
Dr. Thomasse referred Mr. Torchia to Dr. Faridi. According to Dr.
Thomasses report, the MRI of Mr. Torchias spine showed an L4-5 disc bulge,
displacing the L5 nerve root.
[36]
Mr. Torchia did not find Dr. Faridi decisive enough. (Dr. Faridi was of
the opinion that surgery may not solve Mr. Torchias problems). While under the
care of Dr. Faridi, he was referred to Dr. Mosewich for the electomyogram
studies which were conducted in February of 2010, and were found to be normal,
thus arguing against a radiculopathy as the cause of his pain. He was then
referred to Dr. Diehl in the spring of 2010, at which time he had epidural
corticosteroid injections. According to Dr. Thomasse, this provided a profound
decrease in Mr. Torchias pain which lasted only for about a month.
Dr. Michael Nikolakis
[37]
Dr. Nikolakis is a neurosurgeon who, on April 4, 2012, performed surgery
on Mr. Torchia a left
L4-5 microdiscectomy. By this time, Dr. Thomasse had prescribed a number of
medications to Mr. Torchia, some of which helped, others of which had
unpleasant side effects.
[38]
Dr. Nikolakis produced a medical legal report to plaintiffs counsel
dated November 29, 2013. It was counsel for the defendant who introduced this
report in evidence.
[39]
Dr. Nikolakis first saw Mr. Torchia on December 28, 2011, at which time
he diagnosed Mr. Torchia with left L5 radiculopathy syndrome. Dr. Nikolakis
described this as:
A radiculopathy syndrome refers to a disorder of the spinal
nerve root(s). Typical symptoms of a radiculopathy include pain in the
distribution of the nerve root in question. Weakness, numbness, and loss of a
deep tendon reflex may or may not be found on physical examination. Of note,
radiculopathies often do not have objective findings on neurophysiological
testing.
Mr. Torchia presented to my office on the above date with
complaints of low back pain and left leg pain. His low back pain was diffusely
localized, extending from the bottom of his rib cage all the way to the top of
his pelvis. His left leg pain was described as intermittent and variably
radiated down the front, back, medial, and even lateral aspect of his leg. His
description of the pain was also variable, sometimes being sharp, dull, aching
or burning.
Despite the variable nature of
the location and quality of Mr. Torchias pain, I believe that it was reasonable
to assume that his pain was arising from the left L5 nerve root, which I
suspected was being compressed by the left L4-5 disc herniation.
[40]
He described each procedure of the surgery he performed in his report. He
concluded:
My operative note indicates that
there was no nerve root compression or disc herniation seen intra-operatively.
I made sure that there were no anatomical structures which could be irritating
the left L5 nerve root.
[41]
On May 16, 2012, Mr. Torchia reported to Dr. Nikolakis that his left leg
was completely pain free.
[42]
On July 30, 2012, he complained to Dr. Nikolakis of new symptoms being:
complaints of pain which were
distinct from his pre-operative complaints. Specifically, he now complained of
left buttock and left groin pain. He also had pain on the inside of his left
leg, and occasional foot pain. In order to rule out a recurrent disc
herniation, I requested a repeat MRI scan.
[43]
A further MRI was ordered. It showed there was a small disc bulge on the
left side of his body at vertebrae L4-5. Dr. Nikolakis stated:
I agree with the interpreting
radiologists opinion that the disc bulge was without evidence of central
canal or foraminal stenosis. This last phrase indicates that while there was a
small disc bulge, it was not narrowing the aperture through which the L5 nerve
root exited the spinal canal and was not compressing the left L5 nerve root.
Hence, further surgery was not indicated.
[44]
He commented on the herniations at T10-11 and T11-12 which he found as
extremely small and did not appear to place any pressure on the spinal cord or
adjacent nerve roots. He concluded that they required no surgical
intervention.
[45]
In answer to a question posed by Mr. Torchias counsel, Describe the
neurological injuries Mr. Torchia most likely sustained in the December 30,
2008 motor vehicle accident:, Dr. Nikolakis wrote:
Mr. Torchia did not suffer any neurological injuries from the
MVC in question.
My assumption is that Mr. Torchia suffered a soft tissue
injury of the lumbar spine as well as of the cervical spine.
Intra-operatively, I found that there
was no nerve root compression or disc herniation. These findings refuted my
hypothesis of an L5 radiculopathy. I do not have an anatomical explanation as
to why Mr. Torchia transiently improved after surgery, nor why he developed
recurrent and slightly different symptoms several months after his operation.
[46]
Beyond the conclusion that Mr. Torchia did not suffer any neurological
injuries in the accident, Dr. Nikolakis observed that Mr. Torchia improved
after his operation and stated that Mr. Torchia experienced a reoccurrence of
similar, although slightly different, symptoms as reported during his July 30,
2012, follow-up appointment.
[47]
Dr. Nikolakis concluded that Mr. Torchia suffered a soft tissue injury
in the lumbar and cervical spine based on Mr. Torchias reported symptoms.
[48]
Counsel for Mr. Torchia asked this question: Provide your diagnosis of
Mr. Torchias condition as at his last attendance upon you as well as any
physical limitations he had at that time. Dr. Nikolakis wrote:
At my last follow-up appointment
with Mr. Torchia, he had complaints in his left buttock, left lower leg, and
left groin. My assumption is that his symptoms were related to a soft tissue
injury of the lumbar spine, with referred pain down his leg. The differential
diagnosis would also include an injury to the left hip, as hip joint pathology
often refers pain to the groin area. I did not observe any physical limitations
during Mr. Torchias last appointment.
Dr. Richard Brownlee
[49]
Dr. Brownlee is a neurosurgeon who saw Mr. Torchia on December 6, 2010,
October 22, 2012, December 22, 2012 and lastly, September 26, 2013. Dr.
Brownlee testified that, at his initial assessment of Mr. Torchia, Mr. Torchia
complained of back pain and left leg pain, the former starting in the lower
lumbar region. Dr. Brownlees opinion was that Mr. Torchia suffered a disc
herniation as a result of the accident.
[50]
Dr. Brownlee was of the opinion on October 22, 2012 that Mr. Torchias
left leg pain was consistent with a reoccurrence of disc herniation and nerve
root compression. Dr. Brownlee stated that an MRI scan confirmed this. Upon the
recommendation of Dr. Brownlee, Mr. Torchia underwent an L5 nerve block on
November 27, 2012, which provided temporary relief to his leg pain. Dr.
Brownlee interpreted this as:
evidence that the recurrent disc
herniation was responsible for his ongoing left leg pain. I recommended that he
undergo a repeat microdiscectomy surgery if the pain does not resolve.
[51]
Dr. Brownlee considered whether Mr. Torchias chronic pain came from the
lumbar facet joints of the L4-5 where movement of the spine occurs. However, as
a result of this test, Dr. Brownlee was of the opinion that the facet joints are
not the major source of Mr. Torchias pain.
[52]
In cross-examination, Dr. Brownlee acknowledged that if the nerve block
provided no relief, then Mr. Torchias source of pain was that of soft tissue
injury. By the end of his testimony, Dr. Brownlee stated he was not sure that
he could say that Mr. Torchias ongoing pain was related to disc herniation and
a pinched nerve, or how much of it related to soft tissue pain and/or
myofascial pain. He concluded that his diagnosis was soft tissue injuries. He
could not say that Mr. Torchia would benefit from another operation, but that
its still a possibility.
Dr. Todd Yip
[53]
Dr. Yip is a physiatrist and a specialist in physical medicine and
rehabilitation. Dr. Yip saw Mr. Torchia on January 27, 2014, for the purposes
of providing the court with a medical-legal report. Dr. Yip examined Mr. Torchia
and took a history of his past and current complaints. Mr. Torchias complaints
can be summarized as low back pain, thigh pain, calf tightness, and tightness
in the foot and two toes. Mr. Torchia also complained of mid-back pain that he
stated started within a week of the accident. He also told Dr. Yip, that prior
to the accident, he had:
he has a pre-collision history
of intermittent middle back pain which tended to occur every six months. The
pain flares were treated with brief courses of chiropractic treatments. Mr.
Torchia denies having any middle back pain at the time of the December 2008
collision.
[54]
Dr. Yip examined Mr. Torchia and found that he had full range of motion
in the shoulders and neck. At his thoracic spine he had mildly reduced
thoracic spine rotation with complaints of left flank pain at the end range.
[55]
Dr. Yip found bilateral tightness in the hamstrings. Upon palpitation,
Dr. Yip found there was tenderness of the 6th thoracic level left-sided paraspinal
muscles as well as the same at the left side of the thoracolumbar junction. He
also found some tenderness in the left flank area muscles. He found tenderness at
the surgical site of the discectomy surgery.
[56]
Dr. Yip found significant tenderness of the left lumbrosacral junction
and minimal tenderness of the sacroiliac joints.
[57]
Dr. Yip noted that:
Pain is a subjective experience
and is not objectively measureable, and so I cannot comment on the validity or
the severity of Mr. Torchias pain experience.
[58]
Dr. Yip stated that it is unclear to him whether Mr. Torchia had a
herniated disc causing a pinched nerve root and referred any opinion on that
subject to a neurosurgeon.
[59]
Dr. Yip concluded that Mr. Torchia has chronic, non-specific, mechanical
pain in the low back and thoracic area, including his left leg.
[60]
Dr. Yip stated that Mr. Torchia suffers from sleep disturbance and mood
difficulties, and generalized deconditioning. Dr. Yip did not expect Mr.
Torchia to have a complete recovery, and opined that he is likely to experience
back pain and sleep disturbance in the long term.
CREDIBILITY OF MR. TORCHIA
[61]
Mr. Torchias credibility is raised by the defence. In doing so, the
defence refers to Thiessen v. Kover, 2008 BCSC 1445, at para. 145, which
considers the words of Southin J. (as she then was) in Le v. Milburn,
(15 December 1987), Vancouver B81193 at 2, [1987] B.C.J. No. 2690 (S.C):
When a litigant practises to deceive, whether by deliberate
falsehood or gross exaggeration, the court has much difficulty in disentangling
the truth from the web of deceit and exaggeration. If, in the course of the
disentangling of the web, the court casts aside as untrue something that was
indeed true, the litigant has only himself or herself to blame …
[62]
Mr. Torchia told a number of doctors and other experts that, as a result
of the accident, he gained 40 pounds on account of his inactivity. This simply is
not true. When faced with this lie in cross-examination, he suggested that what
he really meant was he had lost muscle mass and replaced it with fat. No
evidence was before me that this was the case.
[63]
After his back surgery, the Insurance Corporation of British Columbia
(ICBC) paid housekeeping services for Mr. Torchia. Mr. Torchias home
contains a self-contained suite. Mr. Torchia testified that his roommate rented
a bedroom in the house and had the whole run of the house along with him. He
told Ms. Chappell, who performed a physical capacity evaluation and cost of
future care analysis, that he rented out the suite in his home. I find that he
was not frank with ICBC as to his housekeeping requirements.
[64]
Mr. Torchia told Dr. Wallace, the psychological and vocational
rehabilitation consultant, that he quit his job at Safeway because he was not
receiving enough employment hours when, in fact, he was fired.
[65]
The defence refers to other incidents where Mr. Torchias credibility is
at issue, one of which was his evidence as to the number of pills he took to
manage his pain. I find this a minor detail and would expect a person to be
confused as to the number of pills they took. In Mr. Torchias case, he was
prescribed a number of prescriptions. I also do not find his estimation of Ms.
Siegrists speed at the time of the accident as between 20 and 30 kph and his
subsequent admission in cross-examination that he did not have enough time to
see how fast Ms. Siegrist was travelling to be problematic. Ms. Siegrist
estimated her own speed at 20 kph.
SURVEILLANCE
[66]
A surveillance video of Mr. Torchia was presented by the defence. Mr.
Torchia was seen mowing his lawn with no apparent difficulty. He walked through
Walmart displaying a comfortable walk. He was also seen walking to and sitting
through his coffee and smoking break. He had no difficulty sitting and standing
or transitioning from those positions. I appreciate that this is a small
snapshot of Mr. Torchias life (portions taken over a period of three days).
CONCLUSIONS REGARDING MEDICAL EVIDENCE
[67]
After the accident, and up until shortly after his surgery, Mr.
Torchias medical treatment was based on the assumption that the accident
caused an L4-5 disc herniation which was pinching or entrapping a nerve root.
Dr. Nikolakis performed surgery on Mr. Torchia expecting to see a disc
herniation and found no such condition. Dr. Nikolakis concluded that Mr.
Torchia had, in fact, suffered a soft tissue injury to his low back. This was
eventually conceded by Dr. Brownlee. Dr. Brownlee was of the mistaken belief
that Mr. Torchia had relief from a left L5 nerve root block in November of
2012. Mr. Torchia had no relief from that particular procedure. Dr. Brownlees
opinion for the need of a future operation had been based on an incorrect
assumption.
[68]
As to mid-back pain, Mr. Torchia told Dr. Yip that he experienced
symptoms a week after the accident. In cross-examination at trial, Mr. Torchia
stated that he noticed mid-back pain after his back surgery and, in particular,
in October of 2012. Earlier in these reasons, I referred to Mr. Torchia telling
Dr. Yip that, prior to the accident, he intermittently had mid-back pain. I
conclude that Mr. Torchia did not injure his mid-back in the accident.
[69]
I also find that Mr. Torchia did not suffer any neurological injuries in
the accident. I find that Mr. Torchias injuries in the accident were neck and
shoulder injuries that cleared up in three weeks. His significant injury is
soft tissue injury to his low back which was reflected in his left leg.
[70]
I have some sympathy for Mr. Torchia in that, since about the spring of
2009, he believed, based on what some, but not all, of his doctors, told him
that he had a herniated disc which impinged on a nerve root.
[71]
I suspect that, based on this belief, he concluded that his condition
may be worse than it was and that he was facing further surgery and medical
treatment that would not be required of soft tissue injury.
[72]
Ms. Chappell, in her report, described how Mr. Torchia viewed his
condition:
He described that he had 2
herniated discs for which he underwent surgery but now has 5 herniated discs.
He described that after his original surgery, he continued to have pain but
thought that it was associated with inflammation. When the healing period was
over and the inflammation was over, however, the pain continued. He did not
experience relief of his pain after surgery and continues to have pain on a
constant basis. He is under the impression that there will be more
investigation and believes that he would benefit from a multi-disciplinary
program but is unable to receive funding for such a program.
MITIGATION
[73]
Ms. Siegrist argues that Mr. Torchia failed to mitigate his damages by
not following medical advice.
[74]
Ms. Siegrist seeks a reduction in damages of between 25 and 30 percent.
[75]
Mr. Torchia argues that the defence has not met the legal burden and any
reduction in damages for mitigation should be dismissed.
The Law
[76]
The law of mitigation is described in Graham v. Rogers, 2001 BCCA
432 at para. 35:
Mitigation goes to limit recovery
based on an unreasonable failure of the injured party to take reasonable steps
to limit his or her loss. A plaintiff in a personal injury action has a
positive duty to mitigate but if a defendant’s position is that a plaintiff
could reasonably have avoided some part of the loss, the defendant bears the
onus of proof on that issue.
[77]
Similarly, in Chiu v. Chiu, 2002 BCCA 618 at para 57, the court
stated:
The onus is on the defendant to
prove that the plaintiff could have avoided all or a portion of his loss. In a
personal injury case in which the plaintiff has not pursued a course of medical
treatment recommended to him by doctors, the defendant must prove two things:
(1) that the plaintiff acted unreasonably in eschewing the recommended
treatment, and (2) the extent, if any, to which the plaintiffs damages would
have been reduced had he acted reasonably. These principles were found in Janiak
v. Ippolito, [1985] 1 S.C.R. 146.
[78]
It is not sufficient that the treatment that might assist the symptoms,
but rather, would have reduced the symptoms: Gregory v. Insurance Corp. of
British Columbia, 2011 BCCA 144 at para. 56.
[79]
The defence refers to several cases where the plaintiff failed to take
reasonable steps to engage actively in a rehabilitation program and exercises. In
Sevinski v. Vance, 2011 BCSC 892, the court reduced the
plaintiffs damages by 25 percent because among other factors, the plaintiff
failed to engage in a proper exercise routine program, failed to engage in
proper physiotherapy, failed to enroll in free chronic pain clinics, and failed
to take steps for her depression. In Salzmann (Litigation Guardian of), v. Bohmer,
2009 BCSC 1586, the court reduced the plaintiffs damages by 20 percent when
the court found that:
[11]
Ms. Salzmann had "absolutely no exercise
education or experience" nor, it would appear from the admissible
evidence, much motivation in that area.
[21] Today,
she still suffers from the injury she received in the accident. But the message
from her own doctor is loud and clear: she can do something about it.
[80]
In Rindero v. Nicholson, 2009 BCSC 1018 at para 30, Mr. Justice
Meiklem reduced the plaintiffs award for failure to mitigate by 20 percent
stating:
There can be no doubt that the
plaintiff would suffer less with knee pain that is increased with physical activity
if he lost weight. The medical evidence confirms this elementary physical
principle
I appreciate that sore knees would probably make it more difficult
to engage in the vigorous exercise that is usually part of a weight loss
program, but the plaintiff has demonstrated that he can lose a considerable
amount of weight when he changes diet and lifestyle, and that his left knee
pain was lessened when he weighed less.
Analysis
[81]
The defence argues that Mr. Torchia did not follow medical advice on the
following occasions:
·
On January 5, 2009, Dr. Vukusic recommended message therapy. The
plaintiff underwent two treatments in January, four days apart. He claims that
he spoke to Dr. Thomasse about discontinuing the treatments. However, he
discontinued the treatment six weeks before he first saw Dr. Thomasse.
I accept that as Mr. Torchia
testified that after the accident, his biggest concerns were his neck and
shoulders and it appears that the massage therapy at that time was directed at
those parts of his body.
· On
February 24, 2009, Dr. Thomasse recommended physiotherapy. Mr. Torchia
underwent five treatments; two in March, one in April and two in May. Dr.
Brownlee stated that he would expect the plaintiff to undergo treatment every
second or third day for a period of at least a month or longer and to continue
with that therapy at home. Dr. Yip was of the opinion that a reasonable course
would have been two to three times per week over four to six weeks. Defence
alleges that on November 10, 2009, Dr. Faridi recommended physiotherapy. I am
not convinced that the letter containing that recommendation reached Mr.
Torchia, however, common sense surely would have Mr. Torchia pursuing
physiotherapy as a result of Dr. Thomasses earlier recommendation.
· On
March 5, 2010, Dr. Gill recommended ongoing back strengthening exercises. Mr.
Torchia did not seek guidance or a program and denied knowing about this
recommendation. The latter of which I do not accept. The defence argues that as
a result of an examination for discovery of Mr. Torchia on February 22, 2011,
this recommendation was brought to his attention and still, Mr. Torchia did not
pursue ongoing back strengthening.
· After
the accident, Mr. Torchia had one chiropractic treatment with Dr. Karpuk. Dr.
Karpuk asked him to come back the next week; Mr. Torchia did not.
· On
December 31, 2012, Dr. Brownlee recommended a multi-disciplinary pain rehabilitation
program, which included physiotherapy, massage therapy, chiropractic treatment,
kinesiology and counselling. Mr. Torchia did seek assistance from ICBC for
payment of this program, which was turned down. The program is not covered by
any of his medical or extended medical benefits from his employment.
· On
October 3, 2013, Mr. Torchia admitted that he had not been exercising and
watching his diet, a recommendation that Dr. Thomasse had made to him
previously.
· On
October 15, 2013, Dr. Brownlee recommended again the full multi-disciplinary
pain rehabilitation program. Again, all of these treatments were individually
available on Mr. Torchias medical or extended medical benefits from his
employment.
· On
February 10, 2014, Dr. Wallace recommended 10-12 counselling sessions so as to
address Mr. Torchias depression. No steps were taken by Mr. Torchia, to
fulfill this recommendation.
· On
February 11, 2014, Dr. Thomasse recommended intensive rehabilitation and weight
loss. No steps were taken in this direction.
· On
March 27, 2014, Mr. Torchia went to Dr. de Wet for purposes of addressing his
pain. Similarly, Ms. Chappell confirmed other resources for people with chronic
pain. I conclude that Mr. Torchia was simply not interested in helping himself
with these recommendations.
[82]
In cross-examination, Dr. Thomasse stated that physiotherapy and other
modules would assist Mr. Torchia. Dr. Brownlee opined that it would be
medically necessary, that it would address his pain, and that his dysfunction
would lessen. Dr. Yip agreed.
[83]
Since the accident, he has developed type 2 diabetes. There is no
opinion that this is a result of the accident.
[84]
Dr. Wallace intended that, at the end of the recommended counselling
sessions, Mr. Torchias depression would be addressed to determine whether
further intervention was necessary. Due to inattendance, this was not resolved.
[85]
Since the accident, Mr. Torchia has not tried any of the activities in
which he was involved prior to the accident. There was no evidence how often he
participated in these activities prior to the accident. There has also been no
medical evidence before the court as to why he cannot participate in these
activities. Quite the opposite, Mr. Torchia has been encouraged to participate
in rehabilitation modules and be active. He has refused.
[86]
Mr. Torchias reasons for not participating in recommended
rehabilitation are directed at cost and not having enough time. I do not accept
these reasons. Firstly, many of the items in the multi-disciplinary pain
program are individually covered by his medical and extended medical benefits
from his employer. Secondly, Mr. Torchia has flexible work shifts. I have
concluded that Mr. Torchia has not appropriately mitigated his damages. I
assess a deduction of 15 percent.
EMPLOYMENT
[87]
After the accident, Mr. Torchia missed at most, one week of work. After
his surgery, he was off work for three months.
[88]
At the time of the accident, he was the back room manager At Walmart in
Kamloops. Mr. Torchia asked to be moved from this position due to his back
injury. Mr. Torchia took a collateral move to a position as administrative
manager. This position required paperwork, making telephone calls and dealing
with organizations, such as the fire department and the Workers Compensation Board.
This move did not impact his pay.
[89]
In January of 2014, Mr. Torchia obtained an assistant managerial
position, which included the garden centre. The previous manager of the garden
centre, Ms. Robinson, stated that, when Mr. Torchia was managing it was
understaffed. This was also confirmed by the present manager of Walmart, Mr. Labermeyer.
[90]
Mr. Torchia was familiar with the garden centre as he had been Ms.
Robinsons right-hand person in this department from 2002 – 2006. According to
Ms. Robinson, the work was heavy and Mr. Torchia had no difficulty performing
the work and did a good job when they worked together.
[91]
Mr. Torchia was later assigned to a different department at Walmart as
assistant manager.
[92]
Mr. Torchia testified that he misses a days work here and there. No
work records were produced, so I conclude that it was an insignificant amount
of time and that he is able to do the work as assistant manager. At Walmart,
Mr. Torchia is one of seven assistant managers who are each assigned to a
different department. Above the assistant managers are co-managers and then
above them is the manager of the entire store. I find it is unusual for a
manager to be appointed from within the store in which he worked. In other
words, managers are usually brought from another store. This was the case of
the former manager, Mr. Blangenager, and the present manager.
NON-PECUNIARY DAMAGES
[93]
The purpose of an award for non-pecuniary damages is to compensate an
injured party for loss of the amenities, for pain and suffering, and loss of
enjoyment of life.
[94]
The off-cited case of Stapley v. Hejslet, 2006 BCCA 34, provides:
[46] The inexhaustive list of common factors cited in 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, 2005 BCCA 54).
POSITIONS ON DAMAGES
Mr. Torchia
[95]
Mr. Torchia seeks an award between $110,000.00 – $125,000.00. This is
based on Mr. Torchias injuries being that of a herniated disc accompanied by
entrapment of the nerve root. Mr. Torchia relies on the following cases:
Case: | Non-pecuniary damages awarded: | Grossed up to reflect present day evaluations: |
Fox v. Danis, 2005 BCSC 102, | $100,000.00 | $117,900.00 |
Gill v. Probert, [1999] | $110,000.00 | $149,277.00 |
Notenbomer v. Andjelic, | $100,000.00 | $109,773.00 |
[96]
In Fox, the female plaintiff was 28 years old at the time of the
motor vehicle accident (a rear-end collision) and 34 years old at the time of
trial. The court found that she suffered permanent injuries to her neck and
lower back. The injury to her lower back was a prolapsed disc at the L5-6S1 of
her spine. Her disc was compressing the nerve resulting in pain running into
the left buttock, down her left leg and into her left foot. She underwent
surgery. The dispute was whether surgery resolved this particular injury. It
improved it, but did not end it. The court found that, as a result of her
injury, she was likely to suffer from depression in the future. The court also found
that she suffered moderately severe soft tissue injury to her cervical and
lumbar spine in addition to the prolapsed disc.
[97]
In Gill, the male plaintiff was involved in three motor vehicle
accidents for which he commenced two actions. The first occurred in 1993 and
the second in 1996. The third motor vehicle accident was within a month of the
second accident. Mr. Gill did not pursue a third action and little information
regarding it was presented to the court.
[98]
Mr. Gill was born in 1970. He suffered a nerve root irritation as a
result of a herniated disc following the first accident. He took some time to
consider an operation and finally he did have it, in which the herniated disc
was removed (discectomy).
[99]
Mr. Gill ceased employment about eight months after the accident and
never worked again. The ongoing pain after surgery that Mr. Gill suffered was
likely due to the scar tissue at the site of the operation. The court found
this to be a permanent injury. The court concluded that Mr. Gills injuries
were a result of the first accident and that the second accident was of a minor
nature and assessed a $1,000.00 damage for that particular accident. In this
case there was a significant issue about non-organic pain (depression) as a
result of the accident, which was diagnosed two months before the trial.
[100] In Notenbomer,
the female plaintiff was 41 years old at the time of the accident and 45 years
old at the time of trial.
[101] Prior to
the accident she had developed low back pain. It was right-sided in that it
went down to her right hip, buttocks, leg and to her toes. A CT scan in 2003 showed
at the L5-S1 a herniated disc. She received a series of epidermal cortisone
injections for pain relief which helped somewhat. She was scheduled for
surgery in 2004 and, before the surgery, the motor vehicle accident occurred.
It was a rear-end collision where she was stopped in her vehicle. She was
thrown forward. She had pain in her neck, shoulder, and leg areas.
[102] Within two
days following the accident she went to see her family doctor, complaining of
low back pain and left sciatic pain. Her pain was hip to hip across her back.
Following the accident, a CT scan showed a disc protrusion at the L3-4 which
did not exist prior to the accident. The plaintiff became badly physically
incapacitated.
[103] In
November 2004, her doctor performed surgery on the right L5-S1 herniated disc
as had been previously scheduled and injected cortisone into the L3-4 at the
same surgery. The court found that the plaintiff had a pre-existing weakness
before the accidents of the L5-S1 and the accident caused more harm to this
vulnerable area. Further, the court found right-sided pain would not have
recurred but for the accident and the left-sided pain was due to the accident
without question. This is all despite the fact that the plaintiff had
degenerative disc disease. At the time of trial, the plaintiff had only been able
to work four days per week out of five days.
Ms. Siegrist
[104] Ms.
Siegrists position is the damage award should be between $50,000.00 – $60,000.00.
[105] Cases
cited by the defendant are:
Case: | Non-pecuniary |
Buttar v. Brennan, 2012 | $60,000.00 |
Azuma-Dao v. MKA Leasing | $65,000.00 |
Bearpark v. Lakhanpal, 2013 | $70,000.00 |
Bansi v. Pye, 2012 BCSC | $75,000.00 |
Devilliers v. McMurchy, | $75,000.00 |
I was given no adjusted amounts for the above described damages.
[106] In Buttar,
44 year-old Mr. Buttar had his own construction company. As a result of a motor
vehicle accident he suffered a low back injury, found to be a soft tissue
injury and a knee injury.
[107] Mr.
Buttars credibility was issue in that he failed to mention a 2005 motor
vehicle accident, in which his back was injured. Further medical records showed
he had difficulties with his back prior to the accident. One such event being
eight and a half months before the accident.
[108] Mr. Buttar
experienced improvement as a result of a rehabilitation program. The court
found that the plaintiff would have reduced his physical work in part, even if
the accident had not occurred. The court also found that Mr. Buttar had made
significant recovery from the accident at two years after the accident with
some flare-ups in his back and shoulder and infrequent flare-ups in his neck.
[109] In Azuma-Dao,
the 28 year-old female plaintiff was injured in a rear-end motor vehicle
accident. Her injuries were shoulder, neck, tingling in her arm and headaches.
At the time of the accident, she worked with mentally challenged adults and
also worked at an exhibition site. She found some relief from physiotherapy,
but decided not to take a recommended reconditioning program to pursue studies
at university. The defence raised mitigation unsuccessfully.
[110] In Bearpark,
the male plaintiff was 25 years old and was involved in two separate accidents.
To complicate matters, he also was in two bus accidents as a passenger. Mr.
Bearpark had suffered from diabetes since he was age 2 years old, which had an
impact on his job history and would continue to do so in the future. He also
had a history of depression and suffered from fear and anxiety. The court found
that Mr. Bearpark was left with chronic back pain and intermittent pain in the
neck and shoulder from the accidents. The court found that he had yet to find a
career path and that he would be limited to sedentary employment.
[111] In Bansi,
the male plaintiff was involved in two different motor vehicle accidents, one
in 2005 and one in 2008. These accidents in which the plaintiff was claiming
damages were heard at the same time. Mr. Bansi was 30 years old at the time of
the first accident and generally in good health. He held a Bachelor of Arts
majoring in Criminology. The 2005 accident was a rear-end collision, which
caused his vehicle to hit the vehicle in front of him, breaking the back of his
seat. He stated he was shocked, felt nauseous, and remained sitting in his
vehicle for several minutes. The 2008 motor vehicle accident occurred on the
Trans Canada Highway at a speed of 100 kph. The plaintiff was driving when a
vehicle hauling a trailer began to weave and fishtail into the right rear of
the plaintiffs vehicle causing the plaintiff to temporarily lose control,
eventually hitting a concrete barrier. It was found that Mr. Bansi suffered
neck, lower back, left arm and right knee injuries resulting in dizziness,
abdominal pain, pain in both hips, severe headaches, and shoulder pain. The
second accident caused re-occurrence of these injuries. The court found them to
be permanent and caused by the accident. It was found that Mr. Bansis
lifestyle and quality of life was significantly impacted. Before the accident
he was energetic and participated in all kinds of home activities as well as
athletic endeavours which he no longer could fully pursue. In addition, his
productivity at work was impacted negatively.
[112] In Devilliers,
the plaintiff was at the time of the accident a 39 year-old wife and mother
was injured in a rear-end collision. The court found that the plaintiff
sustained:
[39]
a significant back
injury leading to significant pain that has become chronic and likely
permanent. She managed her pain with medication and she was able to function
with restrictions.
[113] Mr. Justice
Saunders further stated at para. 44:
The recent increase in her dosage
is also a concern, as it points to the prospect of long-term loss of efficacy.
If her pain cannot be effectively controlled, it appears possible that it may
become disabling. I also take judicial notice of the fact that dependency is a
risk with any opioid, though presumably she will continue to be closely
monitored by her physician.
[114] In
assessing non-pecuniary damages in this case, it is not sufficient to compare
injuries in other cases to that of Mr. Torchias, but rather I must consider
the affect the injuries have on him. Mr. Justice Jenkins in Bansi adopted
the words in Lindal v. Lindal, [1981] 2 S.C.R. 629 at 637:
Thus the amount of an award
for non-pecuniary damage should not depend alone upon the seriousness of the
injury but upon its ability to ameliorate the condition of the victim
considering his or her particular situation. It therefore will not follow
that in considering what part of the maximum should be awarded the gravity of
the injury alone will be determinative. An appreciation of the individual’s
loss is the key and the "need for solace will not necessarily correlate with
the seriousness of the injury" (Cooper-Stephenson and Saunders, Personal
Injury Damages in Canada (1981), at p. 373). In dealing with an award of
this nature it will be impossible to develop a "tariff". An award
will vary in each case "to meet the specific circumstances of the
individual case" (Thornton at p. 284 of S.C.R.).
[Emphasis in original]
[115] I find
that, given the medical evidence before me, there is still room for improvement
of Mr. Torchias injured back. I assess non-pecuniary damages for Mr. Torchia
at $65,000.00.
LOSS OF
FUTURE EARNING CAPACITY
[116] Mr.
Torchia claims that he will suffer a loss of future earning capacity as a
result of the following:
1. He is
required to attend the Welcome Back Pain Clinic program as soon as possible,
which will take three to four months, and will require him to be absent from
work during that time;
2. Mr.
Torchia is continuing his employment at Walmart on a duty by Walmart to
accommodate his disability. He does not meet the requirements of his present
job, which is to regularly lift 40 – 80 pounds;
3. Walmart annually
reviews its managers performance and expectations;
4. The
performance and expectations for each manager is the same. The expectations are
not lowered to meet Mr. Torchias disability; and
5. Mr.
Torchia has not met expectations of Walmart on two occasions: firstly, the move
from the back room manager to administrative manager, and, the second time,
being moved out as manager of the garden centre.
[117] Mr.
Torchia argues that there is a real and substantial possibility that he will
continue in a downward spiral, that at some point he will be unable to
continue to work full time, that his current path will result in complete
burnout at some point, and his post-accident trajectory and career opportunities
with Walmart will be different from his pre-accident trajectory.
[118] To support
these claims, Mr. Torchia relies on Dr. Wallaces vocational assessment report
dated February 10, 2014 as well as Ms. Chappells physical capacity evaluation
dated January 31, 2014.
[119]
Mr. Torchia seeks an assessment of loss of future earning capacity in
the amount between $600,000.00 to $750,000.00. Mr. Torchia approaches the loss
of earning capacity on the theory that he would remain as an assistant manager
for ten years, then be promoted to a co-manager and remain in that position until
he reached a retirement age of 67. He further argues that he could achieve his
goal as a manager of a Walmart store some time before his retirement. Ms.
Siegrist counters that there should be no award for loss of earning capacity. However,
in the defendants closing submissions she states:
188. If an award is given, it should
be something approaching one years salary as commented on in Wery.
Given that the plaintiffs current salary is $50,000 per year, it is submitted
something in the range of $40,000 would be appropriate.
[120]
Both Mr. Torchia and Ms. Siegrist agree that the approach should be that
of a loss of an asset as opposed to projected future earnings. The burdens, the
standard of proof, and realistic employment of this approach are encapsulated
in Perren v. Lalari, 2010 BCCA 140:
[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].
[121] As
discussed above, after the accident, Mr. Torchia missed at most one weeks work
and three months after surgery. Since then, any work lost as a result of his
injured back, are partial days or going home early. No records were provided to
the court showing those lost days.
[122] Going back
to work to the same job, in which the person may work indefinitely, does not
prevent the court from making an award for loss of earning capacity: Morgan
v. Galbraith, 2013 BCCA 305; Pallos v. Insurance Corp. of British
Columbia (1995), 100 B.C.L.R (2d) 260 (C.A.).
[123] To assess
the loss of earning capacity as an asset, the court must address the factors
set out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 and repeated in Morgan.
Mr. Torchia treats his lower back injury as something that will stand in the
way of performing his work and receiving positive performance reviews at
Walmart. This simply is not true. Four years after the accident, Mr. Torchia
competed against one other person and was awarded the position of assistant
manager with increased pay. He must have been meeting the expectations of his
superiors at Walmart in order to receive this promotion. In addition, Mr.
Torchia told Dr. Wallace that his reviews by Walmart have been good.
[124] Mr.
Torchia claims that he has already not met Walmarts expectations by asking to
be relieved of his position as a back room manager. It seems that time was
unimportant to Walmart as he was promoted and moved into the assistant manager
position. As to his lack of success in the garden centre at Walmart, it was
acknowledged by the present store manager and Ms. Robinson that Walmart was
late in hiring more staff. The Kamloops Walmart had its largest sales volume
that year for the garden centre. The present manager testified that promotion
at Walmart is not based on seniority, but rather on performance. Mr. Torchia
argues that he continues his employment at Walmart under a duty by Walmart to
accommodate him in his present job as he cannot regularly lift 40 to 80 pounds.
The basis of this argument comes from the present manager at Walmart who stated
that males and females are expected to lift these amounts, but he did not say how
regularly or in what positions. Ms. Robinson contradicted this statement in saying
that there were different weights for men and women and dependent upon whether
you are carrying or lifting.
[125] Mr. Blankenagel,
who was the manager of Walmart in Kamloops from February 1999 until September
2013, testified that Mr. Torchia had managerial qualities that he recognized
when he promoted Mr. Torchia to back room manager. He stated that Mr. Torchia
participated and organized employees in teams and participated in various
charities supported by Walmart.
[126] Both the
present store manager and the former manager had nothing negative to say about
Mr. Torchias performance. In fact, they had complimentary things to say which
leads me to believe that Mr. Torchias employment with Walmart will continue
indefinitely.
[127] The
present store manager, Mr. Labermeyer, started at Walmart at age 16 and is now
28 years old. He has been a store manager at two different Walmart stores, one
in British Columbia and one in the Yukon. He was previously an assistant
manager for five years. He acknowledged that his career has accelerated. It is
under this manager that Mr. Torchia received his promotion.
[128] The former
manager, Mr. Blankenagel, managed the Kamloops store from February 1999 to
September 17, 2013. Mr. Blankenagel started at Woolco at age 18. Woolco later became
part of Walmart. The evidence is that co-managers and managers are not promoted
within the store. Mr. Torchia likes his employment with Walmart and sees
himself as seeking further promotions. However, at his examination for
discovery, he stated that he preferred to remain in his then job of assistant
manager rather than take a promotion in a location other than Kamloops. After
attaining his assistant manager job as a job promotion in the Kamloops store,
he confirmed that he was a Kamloops boy, happy in Kamloops and would not apply
for a store manager or co-manager positions in any other cities. Despite this,
he changed his evidence at trial and said that he would move. No explanation
was given by him as to this change. I conclude that it is unlikely that Mr.
Torchia will move from Kamloops for a position with Walmart in any other city.
[129] Dr. Yip
opined that Mr. Torchia is likely to experience pain exacerbation in the
future if he were to return to the Back Room Manager position. Dr. Nikolakis
did not observe any physical limitation when he saw Mr. Torchia at his second
and last appointment with him. Dr. Brownlee, under the heading of Impact of
Injuries on Employment, reiterated that Mr. Torchia had missed odd days from
work over the past few years since the accident because of his back and left
leg pain. Dr. Thomasse made no comment on the effect of the accident on Mr.
Torchias ability to work, but did state that there was room for improvement to
Mr. Torchias back injury by exercising and losing weight.
Ms. Chappells Evaluation
[130]
Irene Chappell did a physical capacity evaluation on January 7, 2014 and
prepared a report dated January 31, 2014. It was based on the belief that Mr.
Torchia suffered a herniated disc which impinged on a nerve root in the motor
vehicle accident. She also referred to the diagnosis of soft tissue injury to
his back. Ms. Chappell accepted that Mr. Torchia gained weight as a result of
the accident, which was associated with Mr. Torchias recent diagnosis of
diabetes.
[131]
She also concluded that Mr. Torchia would not be able to go back and
work as the back room manager, as the description he provided involved loading
and unloading trucks. However, Mr. Torchias job was not to load and unload
trucks. He was a manager, and he supervised a crew that unloaded the trucks
with the use of equipment. It is an expectation at Walmart that managers assist
those people they manage.
[132]
Physical capacity evaluations have some limited use. That limitation is
that there is no baseline on which to compare Mr. Torchias physical abilities
and general fitness before and after the accident.
Dr. Wallaces Report
[133]
Mr. Wallace reported that the purpose of his report dated February 10,
2014 was to assess Mr. Torchias residual employability potential.
[134] Mr.
Torchia properly described his job as back room manager to Dr. Wallace, which
involved supervisory and administrative duties, and that he was expected to
assist crews in unloading trucks and binning merchandise. Dr. Wallace accepts
that Mr. Torchia suffered a disc herniation at the L4-5 level. He made no
mention of soft tissue injury.
[135] Dr.
Wallace assumed that Mr. Torchia would be required to change jobs. This was in
response to a question posed by Mr. Torchias counsel and related to Mr.
Torchias vocational abilities and what alternate occupational options would be
open to him with additional education and training. Dr. Wallace suggested that
such positions would be similar to those that Mr. Torchia presently holds as
assistant manager and that Mr. Torchias managerial skills are transferrable to
retail management positions. Dr. Wallace stated that if Mr. Torchia cannot find
such employment, then he should take a diploma course in business education at
the cost of $12,000.00. He provided a further possible choice which would be
that of a dispensing optician at the cost of $20,600.00. Dr. Wallace conceded
that Mr. Torchia can meet the fundamental skills required of competitive
employment, but that he is subject to the risk of not meeting his work
requirements. He recommended Mr. Torchia take further treatment. Dr. Wallace
stated that Mr. Torchia may not be as productive, which is labelled as
presenteeism, resulting in a loss of promotions. Despite these comments of
Dr. Wallace, six years after the accident, Mr. Torchia continues to work, has
been promoted, and enjoys his employment at Walmart. He has not provided evidence
of the real and substantial possibilities of downward spiral or burnout
that he alleges.
[136] Mr.
Torchia compares his loss of earning capacity to Fox, Gill and Jurczak
v.Mauro, 2013 BCCA 507. The nature of the injuries suffered by those
plaintiffs and the effect of it on their work is not comparable to Mr.
Torchias situation.
[137]
At the same time, Mr. Torchia did suffer soft tissue injury. Further, he
had surgery in which part of his vertebrae was removed. That aspect was not
directly addressed by his medical providers. This, in my opinion, has coloured
Mr. Torchias view of himself as not being able to do daily tasks and has affected
his work. He says he is exhausted when he goes home after work. Had Mr. Torchia
followed the advice of his medical providers and the advice of Dr. Wallace,
some of his physical and mental complaints could have been moderated. So far,
he has not done so, for which he is penalized as a result of failure to
mitigate. In mentioning this, I am not further penalizing Mr. Torchia. I am
satisfied that there is a substantial possibility that Mr. Torchia may not be
able to lift the amount that he did prior to the accident and may not be able
to perform his job at the level of his performance prior to the accident despite
a promotion. However, this can be improved by becoming active and participating
in rehabilitation.
[138] Mr.
Justice Barrow, in Wery v. Toulouse, 2006 BCSC 823, summarized the law
dealing with loss of earning capacity. He noted that quantifying entitlement
under this heading of damages is less clear than determining entitlement and
the starting point for valuation may be to determine the difference in earning
amount between the likely future of the plaintiff if the accident had not
happened with the plaintiff’s likely future after the accident has happened:
para. 37, citing Rosvold v. Dunlop, 2001 BCCA 1 at para. 11. This is not
the end of the inquiry as the overall fairness and reasonableness of the award
must be considered taking into account all the evidence: Rosvold at
para. 11; Parypa v. Wickware, [1999] B.C.J. No. 270 at para. 70 (C.A.); Morris
v. Rose Estate (1997), 75 B.C.A.C. 263 at para. 24.
[139] In the
circumstances of the case, where the plaintiff was able to do the work she
previously did with some limitations, Barrow J. concluded the plaintiffs
situation was not dissimilar from Pallos, Mowat v. Orza, 2003
BCSC 373, and Letorneau v. Min, 2003 BCCA 79 where an amount approaching
one years salary was considered an appropriate measure of damages: para. 39.
[140] As in Wery,
I award Mr. Torchia one years salary, that is $50,000.00.
COST OF FUTURE CARE
[141] The
following principles must be considered in assessing the cost of future care.
1. The award
for cost of future care is based on what is reasonably necessary on medical
evidence: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33;
2. In
considering not only what is medically required, but also that which the
injured person is likely to incur: Szymanski v. Morin, 2010 BCSC 1;
3. Those
services and items for future care that the injured person is unlikely to use
cannot be justified as reasonably necessary: Szymanski.
4. When
considering items for future care, there should be some relationship to the
severity of the injury and its need: Penner v. Insurance Corporation of
British Columbia (sub nom Penner v. Silk), 2011 BCCA 135;
5. The
purpose of a future care award is to promote the mental and physical health of
the injured person: Milina;
6.
The award must be fair to both parties. In Andrews v. Grand & Toy
Alberta Ltd., [1978] 2 S.C.R. 229 at 243-244, Mr. Justice Dickson states:
An award must be fair to both parties but the ability of the
defendant to pay has never been regarded as a relevant consideration in the
assessment of damages at common law. The focus should be on the injuries of the
innocent party. Fairness to the other party is achieved by assuring that the claims
raised against him are legitimate and justifiable.
7. Contingencies,
both negative and positive must be considered. Examples of such contingencies
are loss of employment, early death or the necessity of institutional care.
Evidence on contingency should be presented, but if there is no such evidence,
then a range of 20 percent should be considered: Milina;
8. An injured
person should be encouraged to do what he can do for himself or herself: Milina;
9. In
assessing the cost of future care, duplication must be avoided: Milina; and
10. There are two methods of
calculation, one taking all costs of future care, including basic living
expenses and deducting from the award for lost earnings the percentage which
would have been spent upon such expenses. The second way is to calculate only
the additional costs that arose from the injury and allow a full award for lost
earning capacity. The method used depends on the evidence and the kind of
injury: Milina.
[142] The
approach taken by Mr. Torchia is the additional expenses he is likely to incur as
a result of his injuries.
[143] Mr.
Torchias claim for future care costs are set out in Ms. Chappells report.
[144] Counsel
for Mr. Torchia, in his submissions has gone through the list prepared by Ms.
Chappell and eliminated some costs because they are covered by the public health
care system or the claim is not being advanced.
[145] Mr.
Torchia claims that each item is medically necessary and supported by his
doctor or Ms. Chappell, not only in her Future Care Report but also in her
Physical Capacity Evaluation. The defence argues that many of the items set out
in Ms. Chappells report are not her opinion, but rather a doctors recommendations
and she is costing some of those items. Secondly, some of the items that Ms. Chappell
recommends are a result of her testing on one day five years after the
accident. Thirdly, Ms. Chappells report is filled with advocacy arguments where
she passes off the plaintiffs subjective complaints as her own objective
opinion. Fourthly, the defence says the conclusions that she comes to are not
in agreement with her test results.
[146]
The items or services that Mr. Torchia seeks are either inclusive of GST
or exempt. They are as follows:
1. |
| Housekeeping | $110,000.00 |
2. |
| Handyman Services | $75,000.00 |
3. |
| Occupational Therapy | $772.00 |
4. |
| Multi-Disciplinary Pain | $14,000.00 |
5. |
| Physiotherapy | $1,595.00 |
6. |
| Fitness | $18,000.00 |
7. |
| Sit-Stand Desk | $786.00 |
8. |
| Ergonomic Chair | $1,260.00 |
9. | (a) | Nabilone | $5,734.00 |
| (b) | Cipralex | $21,820.00 |
| (c) | Nucynta ER (Tapentodal | $3,000.00 |
| (d) | Medical Marijuana | $105,000.00 |
| (e) | Non-Prescription Medication | $2,230.00 |
| (f) | Future Physiotherapy and | $41,000.00 |
| (g) | Counselling | $1,700.00 |
TOTAL: | $401,897.00 | ||
[147]
Dr. Thomasse provided Mr. Torchia with a number of notes written on his
prescription forms. These relate to future care claims and the disputed items
for special costs. The first one is dated June 16, 2009. It stated that Mr.
Torchia was to avoid heavy lifting. The next one is dated May 3, 2010 and makes
a recommendation that Mr. Torchia have regular hot tub treatments. After that,
in a note dated February 15, 2011, Dr. Thomasse recommended that Tony have a
hot tub of his own. On a note dated June 5, 2012, Dr. Thomasse recommended that
Mr. Torchia not do lawn maintenance or heavier household chores until July 12,
2012. On July 5, 2012, Dr. Thomasse wrote:
Tony is unable to do lawn
care/heavier household duties due to reaggravation of his back pain post operatively.
He sees the neurosurgeon in September.
[148] On September
5, 2012, Dr. Thomasse, on the same topic (chores and lawn maintenance), wrote
that Mr. Torchia needed ongoing help. On March 18, 2013, Dr. Thomasse wrote: I
agree that Tony attend the chronic pain management clinic at the Welcome Back
Clinic. On February 18, 2014, Dr. Thomasse wrote Tony needs ongoing assistance
with house cleaning due to medical reasons.
[149] Dr.
Thomasse testified that the notes he wrote, were at Mr. Torchias request and
the contents of those notes were based on Mr. Torchias subjective complaints.
None of these notes are based on a medical opinion. Dr. Thomasse also accepted
that Mr. Torchias claim of gaining 40 pounds was as a result of the motor
vehicle accident. The notes were all sought and provided by Dr. Thomasse after
Mr. Torchia had his surgery in April 2012.
Housekeeping
[150]
After his back surgery, ICBC provided Mr. Torchia with housekeeping
services every two weeks. Up to his surgery, Mr. Torchia did his own
housekeeping for three and a half years after the accident. After his
examination for discovery of February 22, 2011, Mr. Torchia was asked the
following questions and gave these answers:
Q Okay. So you have some problems shovelling
snow, you still do it but it takes longer and sometimes your dad helps,
correct?
A Correct.
Q Any other things around the house that give
you difficulty now?
A Not really, no, I
try to do everything on my own, I still want my independence.
[151]
Mr. Torchia relies on Dr. Brownlees comments where he responds to the
following question:
Q.7: Please provide as much insight as possible as to the
effect any physical limitations may have upon his future recreational,
vocational and domestic abilities. For example, do you anticipate that Mr.
Torchia may be limited with respect to performing the more physically demanding
aspects of his employment, housework and yard work in the future? Is there a
risk that his limitations may grow more pronounced over time?
A.7: At this time Mr. Torchia is
still very limited in his physical ability. Standing, sitting or even lying for
prolonged periods of time aggravate his pain. Lifting, pulling and pushing
activities aggravate his pain. These restrictions impact his occupational,
recreational and household duties.
[152] At the
time of the report (2013), Dr. Brownlee was of the belief that Mr. Torchia
suffered a disc herniation at the L4-5 vertebrae of his spine in the motor
vehicle accident, which was proven later not to be true. Dr. Brownlee has
acknowledged that Mr. Torchia suffered a soft tissue injury and that is where
the pain emanates from.
[153] The tests
performed by Ms. Chappell show, and I accept, that Mr. Torchia is capable of
light strength work and meets some requirements of medium strength work. This,
she states, is because Mr. Torchia is employed full-time which impacts his
tolerance to participate in housekeeping activities. Specific housekeeping
tasks where Mr. Torchia needs help have not been identified.
[154]
Mr. Torchia refers to Dr. Yips opinion, who stated:
Mr. Torchia states that he managed all household tasks
independently before the collision. According to Mr. Torchia, he cooked,
cleaned, washed dishes, managed the laundry, and bought groceries
independently.
Mr. Torchia explains that he now
uses a housekeeping service every two weeks to assist with floor washing, tidying,
vacuuming, washing windows, washing walls, and cleaning the bathroom. He cooks
his own meals.
[155] What
appears not to be known to Dr. Yip is that Mr. Torchia, for three and a half
years, had no assistance with his household tasks and the assistance he received
only occurred after his surgery in April of 2012.
[156] Based on
the evidence before me, I conclude that Mr. Torchia is well able to perform
housekeeping services for himself.
[157] Mr.
Torchia made a claim for loss of housekeeping capacity. Mr. Torchia stated that
he was slower when performing snow removal. I have considered this in making my
award for non-pecuniary damages.
Handyman Services
[158] Prior to
the accident, Mr. Torchia worked at improving and maintaining his home, such as
cleaning his gutters and pressure washing the outside of his home. Mr. Torchia
has a lawn and garden to maintain. His property is flat. He is well able to mow
his lawn and is able to shovel snow, as I have already described. The garden in
his backyard is not large, but requires planting, watering and weeding. Mr.
Torchia is likely able to do most of these activities. There may be times when
he will need assistance when doing heavier work.
[159] Mr.
Torchias difficulties will lessen should Mr. Torchia decide to participate in
rehabilitation.
[160] I conclude
that Mr. Torchia may need to engage in a handyman services for heavier work
given his condition at the time of trial and despite some improvement in the
future. I award handyman services of ten hours per year at $40 per hour
equalling $400.00 per year until Mr. Torchia is age 70. Using the present value
calculations prepared by Christine Clark, the present day value for the award
of handyman services is $1,194.00. I award this amount.
Occupational Therapy
[161] The
argument for occupational therapy is as made to address sleeping difficulties
that Mr. Torchia alleges. His sleeping difficulties are all self-reported and,
like many of his reported symptoms, are exaggerated. There is no evidence,
except from Ms. Chappell, regarding this item of future care. There is no
evidence before me that this is medically justified, such as an opinion from a
medical doctor knowledgeable on the subject of sleep or an occupational
therapist who works in this field. I decline to make such an award.
Multi-Disciplinary Pain Program offered by Welcome
Back Clinic
[162] All of Mr.
Torchias doctors have endorsed this program as it deals with all aspects of the
physical and psychological components of his chronic pain.
[163] Mr.
Torchia has known about this program for some considerable time, even before
his surgery. He was off work for over three months after his surgery. During
that time, he participated in no rehabilitation activities. In fact, his last
rehabilitation-type activities occurred in the spring of 2009. Mr. Torchia did
not explain why he could not participate at the Welcome Back program after his
surgery and when he was away from his work for over three months.
[164] Mr.
Torchias position at trial was that if ICBC would not pay for it, he would not
pay for it. The cost is $14,000.00. At the time of his surgery, Mr. Torchia was
earning a little over $40,000.00 gross per year. He owned his own home, without
a mortgage, and had no dependents. Many of the individual modules offered by
Welcome Back are covered by Mr. Torchia medical and extended medical benefits
from his employer. He provided no explanation why he did not pursue treatment
such as physiotherapy or massage therapy.
[165] Mr.
Torchia testified that he wants to embark on the Welcome Back program. However,
Mr. Torchia did not testify as to whether he had checked with his employers as
to obtain a leave of absence for this period, nor did he give any evidence as
to what his loss of income would be.
[166] Mr. Labermeyer
testified but he was not asked whether Walmart would grant Mr. Torchia a leave
of absence from his employment in order to pursue this multi-disciplinary
program. I am not prepared to award this item of future care as I find that Mr.
Torchia is unlikely to pursue it.
Fitness Facility Membership and Access to a
Kinesiologist
[167] After the
accident, Mr. Torchia did not join a gym or seek the advice of a kinesiologist.
There is also no evidence that he participated in this kind of activity prior
to the accident. This was presented as an alternative to the Welcome Back
therapy and one that Mr. Torchia is likely to pursue given his employment and
personal obligations. Dr. Brownlee, Dr. Thomasse, and Dr. Yip support physical
activity to address Mr. Torchias injury and pain.
[168] However, I
do not accept that Mr. Torchia needs the services of a kinesiologist twice a
month. A kinesiologist can motivate and instruct a person as to the safety of
certain exercises, as well as design a program suitable for Mr. Torchia. I
allow three kinesiology sessions, which I think is appropriate in the first
year of Mr. Torchias gym membership. I award $225.00 ($75 per session x 3).
[169] I accept
that a membership at a gym is approximately $520.00 per year, which I award for
a period of ten years, totalling $5,200.00. A gym membership is a realistic
option for Mr. Torchia to address weight loss and diabetes despite the accident.
Using the present value calculations prepared by Christine Clark, the present
day value is $4,483.90. I award this amount.
Sit/Stand Desk and Ergonomic Chair
[170] Ms. Chappell
recommends a sit/stand desk for Mr. Torchia so that he can vary his sitting and
standing positions at work. The ergonomic chair is to support his low back. Mr.
Torchia did not describe the work he did in his present occupation as an
assistant manager and did not testify as to whether he sat in a chair at a desk
and for what length of time. All Mr. Torchia stated was that he would like
these items.
[171] I am not
prepared to award an amount for a stand up desk and an ergonomic chair.
Medication
[172] Throughout
Mr. Torchias evidence, he found fault with almost all of the medications that
his doctors prescribed, as well as massage therapy and physiotherapy.
[173] In his
report, Dr. Yip recommended that Mr. Torchia not add to his present pain
medication. When Dr. Yip examined Mr. Torchia, be believed that Mr. Torchia was
taking Cipralex for his mood, Nabilone for pain, and two other medications, one
for diabetes and one for high blood pressure.
[174] Mr.
Torchia, at trial, testified that he was not taking any prescription drugs
other than prescribed marihuana.
Nabilone (Synthetic Marihuana)
[175] Mr.
Torchia said this drug left him stoned. As a result, he limited it to when he
was not working. Mr. Torchia prefers smoking marihuana to taking Nabilone. I
make no award for Nabilone.
Cipralex
[176] He uses
this drug only when he feels depressed, not daily, as was assumed by Ms. Chappell.
There is no medical evidence as to how long Mr. Torchia would use this
medication. I make no award for Cipralex.
Nucynta ER (Tapentodal Hydrochloride)
[177] Mr.
Torchia testified that Dr. de Wet prescribed this medication. He testified that
he filled the prescription. He said he looked at the side effects of this drug
and it scared him. He did not take this drug. I make no award for Nucynta ER
(Tapentodal Hydrochloride).
Medical Marihuana
[178] Mr.
Torchia, prior to his accident, used street marihuana occasionally and
recreationally.
[179] He
testified that he sought out marihuana to ease his pain as a result of his back
injury following the accident. He was consuming two joints a day.
[180] He asked
Dr. Thomasse to prescribe marihuana for him, which he did. He prescribed one
gram a day, which is equivalent to two joints a day. Dr. Thomasse confessed
that he was not an expert as it relates to the treatment of pain with marihuana.
There was no reference to use of marihuana for pain in Dr. Thomasses expert
report.
[181] None of
the other doctors who treated Mr. Torchia commented on the use of medical
marihuana except Dr. Yip who said that he had patients that report smoking
marihuana to treat their pain. This cannot be taken as a doctors
recommendation based on medical evidence that it is capable of treating pain.
There was no evidence before me or any reference to any conclusive studies that
suggest treating pain with marihuana.
[182] There is
some dispute as to how much marihuana Mr. Torchia uses. He reported use of
one-eighth of an ounce of marihuana every couple of weeks. Converting it to
grams, Mr. Torchia uses 3.5 grams every two weeks. Dr. Thomasse testified that
the smallest amount that could be ordered for Mr. Torchia was one gram per day.
[183]
Mr. Torchia relies on Joinson v. Heran, 2011 BCSC 727. The court
in Joinson, made an award for marihuana so long as it was ordered from
Health Canada. That case is of no importance in the case of Mr. Torchia, as the
test still is what is reasonably necessary on the medical evidence so as to
promote the medical well-being of the plaintiff. Just because another case
finds marihuana useful for one patient does not automatically infer that it is
medically necessary for another plaintiff. In Joinson, medical marihuana
was approved by Mr. Joinsons psychiatrist to use so that Mr. Joinsons use of
morphine could be reduced. In Joinson, there was evidence before the
court which led Mr. Justice Brown to conclude:
[418] I accept the medical
literature is controversial and this subject remains generally controversial
among experts and authorities. Medical use of marijuana has many supporters,
professional and lay, particularly for use in cases of intractable pain such as
cancer, but also detractors who raise legitimate grounds for challenging its
safety and health benefits. Given the conflicting medical opinions, scientific
controversy and safety concerns, all the more reason for a judge requiring compliance
with rules and regulations established for the legal purchase of medical
marijuana.
[184] No such
evidence was before me. I decline to make an award for medical marihuana.
Non-prescription Drugs
[185] Mr.
Torchia also seeks money for non-prescription drugs such as Tylenol and Advil.
Mr. Torchia did not prove how many non-prescription drugs he takes to alleviate
pain. The amount that he testified to has not been proven by the production of
receipts. As a result, I assume that he takes this medication as needed and I
award him $1,000.00.
Future Physiotherapy and Massage Therapy
[186] Mr.
Torchia, after the accident, received two massage therapy sessions, which he
said were not helpful. At the time, the treatment was intended to address his
neck and shoulders. He then took five physiotherapy treatments, ending them in
the spring of 2009, and finding them also not helpful. Those doctors that
addressed this therapy stated that the number of sessions completed by Mr.
Torchia was not sufficient to determine whether this therapy would be a
success.
[187]
I find it is unlikely that Mr. Torchia will pursue this treatment
despite Dr. Yips recommendation that it would be:
medically reasonable for Mr.
Torchia to engage in brief courses of physiotherapy (with exercise review),
chiropractic, acupuncture, and massage for pain flares that do not settle with
periods of relative rest, activity modifications, or medications in the future.
I decline to make an award for physiotherapy and massage
therapy.
Counselling
[188] This is a
reasonable recommendation advanced by Dr. Wallace for 10 – 12 sessions and
would occur almost immediately. I allow $1,700.00 as sought.
SPECIAL DAMAGES
[189] In dispute
for the special damages are the purchase by Mr. Torchia of a bath tub, hot tub,
an MRI, mattress, inversion table, and cane.
Bath Tub and Hot Tub
[190] Mr.
Torchia bought a new bath tub at a cost of $1,823.92 at the direction of his
doctor, as he found going to the Tournament Capital Centre (TCC) was
inconvenient, noisy, and was not conducive to his need for relaxation to treat
his back and leg.
[191] He
purchased a new deep soaker tub as the old one was too shallow. Not only was
the tub deeper, it came with handles for purposes of access. He found it
beneficial, but not as good as the hot tub he had been using at TCC.
[192] Mr. Torchia
decided that he should have a hot tub because it had jets and was more
beneficial than his new soaker tub.
[193] I conclude
that the purchase of the bath tub was reasonable given that Mr. Torchia could
soak in hot water at home. I find that the heat provided Mr. Torchia with heat
to treat his back. I award Mr. Torchia $1,823.92 for the cost of the bath tub.
[194] However,
there is no evidence before me that the jets in a hot tub provide more relief
than the bath tub. A hot tub is a luxury that the defendant need not assume. I
am not prepared to reimburse Mr. Torchia for the hot tub he purchased.
MRI – July 26, 2010
[195] Mr.
Torchia attended Canadian Magnetic Imaging in Vancouver to undergo an MRI of
his lumbar spine which had been ordered by Dr. Faridi. Mr. Torchia testified
that he did not want to stand in line for the waiting list to have it done in
the public health system in Kamloops. I think it was reasonable for Mr. Torchia
to undergo an expedited MRI and I allow the amount of $1,361.65.
Mattress
[196] Mr.
Torchia testified that, as a result of finding that he could not sleep in his
bed and that he was sleeping on the couch, he decided to purchase a new
mattress. He testified that the new mattress did not resolve his problems
sleeping and he continues to remain sleeping primarily on his couch. I find
that it was not unreasonable for Mr. Torchia to consider a new mattress. It was
common sense to take that step. Mr. Torchia will be reimbursed for the mattress
in the amount of $532.00.
Inversion Table
[197] Mr.
Torchia bought an inversion table at a cost of $131.01. He claimed that a
physiotherapist had recommended it to him. There was no evidence before me that
its purchase was necessary. Mr. Torchia stated that it provided some relief,
but as usual, Mr. Torchia concluded it was not overly helpful. Whether this
inversion table is intended to be used in concert with physiotherapy is not
known. Mr. Torchia will not be reimbursed the cost of the inversion table.
Cane
[198] This is a
minor cost. Although there were some witnesses who said Mr. Torchia was walking
with a cane at work and limping, limping was never visible in the surveillance
that was undertaken. In any event, I conclude that buying a cane is reasonable
and an inexpensive thing to do and may have provided him some support, as Mr. Torchia
walked through the Walmart store. I award the cost of a cane in the amount of
$22.89.
SUMMARY
Non-pecuniary damages: | $65,000.00 |
Loss of future earning | $50,000.00 |
Past wage loss: | $9,484.00 |
Future care: Handyman services: $1,194.00 Medication: $1,000.00 Gym membership: $5,200.00 Kinesiologist: $225.00 Counselling:$1,700.00 | $8,602.90 |
Special damages: Bath tub: $1,823.92 MRI: $1,361.65 Mattress: $532.00 Cane: $22.98 | $3,740.55 |
TOTAL: | $136,827.45 |
[199] The above
described damages are discounted by 15 percent for failure to mitigate.
[200]
I order that the plaintiff will have his costs and reasonable
disbursements assessed pursuant to Appendix B, Scale B of the Supreme Court
Civil Rules, B.C. Reg. 168/2009.
Hyslop
J.
HYSLOP J.