IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150224

Docket: M064171

Registry:
Vancouver

Between:

Pavel Sirak

Plaintiff

And

Brian Alfred
Noonward, A-Pacifica Limousine Service Inc.
and Woodridge Ford Lincoln Ltd.

Defendants

Before:
The Honourable Madam Justice Warren

Reasons for Judgment

Introduction

[1]            
Pavel Sirak claims damages for personal injuries he suffered in a car
accident on February 5, 2005. While stopped on Highway 99 for a road-construction
crew, he was rear ended by a van driven by the defendant, Brian Noonward,
leased by the defendant, A-Pacifica Limousine Service Inc., and owned by the
defendant, Woodbridge Ford Lincoln Ltd. The defendants have admitted liability.

[2]            
Mr. Sirak claims that, as a result of the accident, he suffered
serious injuries to his neck and back which continue to cause significant pain,
headaches, and numbness, in addition to other neurological symptoms in his
arms, hands and legs. He says his symptoms have become progressively worse and
more disabling over time, with ongoing and permanent consequences negatively
affecting every aspect of his life.

[3]            
Mr. Sirak, who was 45 years old at the time of the accident, has
always worked in physical jobs, primarily as a painting contractor. He has
continued to work part time since the accident due to financial necessity, but says
his ability to work has been progressively and significantly compromised. He also
says he cannot continue to work in a physically-demanding job, that his
residual capacity to work is extremely limited, and that he is permanently
disabled.

[4]            
Mr. Sirak seeks damages for pain and suffering, loss of past and
future income earning capacity, cost of future care, special damages, in trust
damages to reflect the assistance his stepdaughter has provided to him since
the accident, and costs.

[5]            
The defendants admit that Mr. Sirak was injured in the accident.
However, they say he suffered only moderate soft-tissue injuries to his neck
and lower back. In the alternative, the defendants submit that if Mr. Sirak
is suffering from a significantly disabling condition, that condition was not
caused by the accident. They submit that Mr. Sirak had degenerative
changes to his back that pre-existed the accident, and that any currently
disabling condition he does have was caused by those pre-existing degenerative
changes.

[6]            
The defendants submit that Mr. Sirak is entitled to a modest award
of non-pecuniary damages. They say he has not established any past income loss,
but that he is entitled to modest awards for loss of future income earning
capacity and cost of future care. They accept the portion of his special
damages claim related to the time period up to January 2010 when they say he no
longer required any treatment. Finally, they submit that the in-trust claim has
not been established.

Mr. Sirak’s Evidence

Before the Accident

[7]            
Mr. Sirak was born in 1959 in communist Czechoslovakia. He
completed grade 9 and then took a masonry course. He worked in masonry, stucco
and tiling until 1979 when he was required to serve two years in the Army.
While in the Army, he drove buses and operated heavy equipment. After being
discharged, he worked in construction and furniture delivery.

[8]            
In 1986, Mr. Sirak left Czechoslovakia under the pretense of going
on a vacation to Cuba. The flight stopped over in Montreal, and while the plane
was refueling, Mr. Sirak defected. He obtained temporary landed-immigrant
status, and then moved to Ontario in early 1987. He worked as a painter and
bricklayer. In the summer of 1988, Mr. Sirak met his future wife, Karen
Little, who had two daughters from a previous relationship.

[9]            
In 1991, Mr. Sirak moved to British Columbia. Ms. Little and
her daughters later joined him and they all settled in Squamish. He and Ms. Little
were married and, in 1994, their son Pavel James (who is referred to as “P.J.”)
was born. Within a few years, Mr. Sirak and Ms. Little divorced. Mr. Sirak
assumed primary responsibility for parenting P.J., and after a period of
estrangement, he re-established and maintained a close relationship with Ms. Little’s
daughters.

[10]        
When Mr. Sirak moved to British Columbia, he initially worked
installing aluminum railings. He also started a painting and stucco business.
He then worked as a painter for Paramount Painting, but he continued to take
bricklaying, stucco and painting jobs on the side. In 2000, Mr. Sirak left
Paramount Painting to work in his own business doing contract painting. There
is a greater demand for painters in the summer months. In the years prior to
the accident, Mr. Sirak said he worked approximately 60 hours per week
during the summer and 35 to 40 hours per week during the winter.

[11]        
Mr. Sirak testified that, prior to the accident, he was healthy and
strong. He said he had no history of neck or back pain, although he did go to a
chiropractor approximately twice a year to “release stiffness”. Aside from a
shoulder injury in 2003 which healed without complications, he had no
significant health concerns.

[12]        
Mr. Sirak’s work is very physical. It involves heavy lifting,
including the lifting of scaffolding, pails of paint, pails of acrylic and
extension ladders. Before the accident, he could manage this heavy lifting on
his own. High-rise painting sometimes requires the use of what Mr. Sirak
referred to as a “bosun chair”. This is a chair that is suspended from ropes,
from which the painter can access high spaces. The use of a bosun chair
requires strength and dexterity. Painting also involves overhead work, bending
and stooping. Bricklaying and stucco work involve a lot of strain on the wrists
and hands. Mr. Sirak testified that, prior to the accident, he was not
physically limited from doing any of this work.

[13]        
 Mr. Sirak has always enjoyed physical activities, particularly in
the outdoors. Prior to the accident, he enjoyed camping with friends, hiking,
biking, rollerblading and swimming. He also enjoyed skating and playing hockey.
He spent time running his dog along the river and playing outside with P.J. and
other neighbourhood children. After Mr. Sirak and his wife separated, he
assumed responsibility for all housekeeping, laundry and cooking for himself
and for P.J.

The Accident

[14]        
The accident occurred on February 5, 2005. Mr. Sirak was alone in
his vehicle heading north on Highway 99, approximately 15 km north of Horseshoe
Bay. Mr. Sirak stopped his minivan behind other northbound vehicles after
being flagged to a halt by a construction crew. His vehicle was struck from
behind by a large van driven by Mr. Noonward, who had been distracted by a
construction worker on the side of the highway. Mr. Noonward was travelling
at about 50 km an hour and he drove into Mr. Sirak’s minivan without
breaking.

[15]        
Mr. Sirak was wearing his seatbelt. He had his foot on the brake
and both hands on the steering wheel. Suddenly, he heard the crash and the
smash of glass. Mr. Sirak’s vehicle was pushed into the vehicle in front
of him, ultimately resulting in a six- or seven-car pileup. The force of the
impact was very heavy. The assembly of the driver-side airbag in Mr. Sirak’s
vehicle popped out but the airbag did not deploy. The passenger side airbag did
deploy. The interior fan covers popped off. The rear window of Mr. Sirak’s
vehicle was blown out. The driver’s seat was broken and the steering wheel
damaged. Mr. Sirak ended up lying sideways, twisted to his right, on the
broken seat.

[16]        
After the impact, Mr. Sirak tried to get out of the car but he had
difficulty standing. He rested for a few minutes and was then able to get out
of his car. He was examined by paramedics at the scene and, by that time, he
was feeling sore. They told him to go to the hospital. Mr. Sirak was taken
by tow truck to Squamish. His vehicle was not drivable and was subsequently
written off.

After the Accident

The injuries

[17]        
The tow truck dropped Mr. Sirak off at the ICBC office in Squamish.
His son-in-law, Colin Quinn, picked him up and took him home. Later that
evening, Mr. Sirak attended Squamish Hospital with a severe headache and
pain throughout his body. He was checked for internal injuries, none were
found, and he was sent home with Tylenol 3s. Three days after the accident, he
attended at the office of his family physician, Dr. Lawrence Klein, where
he saw a locum physician who was filling in for Dr. Klein.

[18]        
Mr. Sirak testified that, right after the accident, he got a
headache at the back of the head, and that while the intensity of it sometimes
lessens, it never goes away. He said the headache is worse when he engages in
heavy lifting and any activity requiring his arms to be above his head.

[19]        
Mr. Sirak testified that his neck pain has worsened each year since
the accident. He said it is always present, but intensifies with certain
activities such as lifting and working with his arms over his head. Also, if he
drives too long, or walks too much, it stiffens up and he is not able to turn
his head. The neck pain radiates down his arms.

[20]        
Mr. Sirak testified that right after the accident his right hand
felt numb from the fingers to the elbow. This progressed to the left hand. He
said the numbness is getting worse all the time, and intensifies with certain
activities such as lifting.

[21]        
Mr. Sirak testified that soon after the accident he began feeling
pain between his shoulders. This gets worse when lifting, climbing a ladder or
vacuuming. The most significant problem with his back, however, is his low
back. He testified he has constant pain in the middle part of his low back. The
low back pain intensifies with walking, lifting, climbing a ladder or working
with his arms over his head.

[22]        
Mr. Sirak testified that he has had various leg symptoms since the
accident, including numbness, tingling and pain. Initially he suffered symptoms
in his left leg. More recently, he described constant, shooting pain in his
right leg. He described an incident, two years prior to the trial, when his
back “locked up” and he could not get his right leg to move. He said he had to
crawl to the bathroom. This particular episode lasted two to three days. He has
experienced similar episodes on other occasions.

[23]        
Mr. Sirak testified that all of his symptoms have worsened over the
years since the accident. He said that each year he can do less than the year
before. He has become frustrated and his mood has worsened progressively.

[24]        
Dr. Klein has remained Mr. Sirak’s main treating physician. Mr. Sirak
has seen Dr. Klein regularly over the years since the accident,
complaining of pain and neurological symptoms worsening over time. Dr. Klein
referred him to a neurologist, (Dr. Johnston), a physiatrist (Dr. Hershler),
and two neurosurgeons (Dr. Mutat and Dr. Sahjpaul).

[25]        
In June of 2010, Dr. Mutat recommended that Mr. Sirak undergo
surgery on his cervical spine. Mr. Sirak asked Dr. Klein for a second
opinion. Dr. Klein then referred him to Dr. Sahjpaul, who also
recommended surgery, although he recommended two separate procedures: one on
the cervical spine (at two levels), and one on the lumbar spine.

[26]        
Mr. Sirak preferred Dr. Sahjpaul’s approach but he has not yet
undergone the surgeries. He testified that Dr. Sahjpaul explained the
surgeries would probably improve his neurological symptoms but would not
eliminate the pain. Following the surgeries, he would have to take a significant
amount of time off work, which he cannot afford. He testified that while he
“needs to have the surgeries”, the outcome is not guaranteed, and he is not in
a positon financially to take time off work while recovering, or risk being
completely unable to return to any degree of painting.

[27]        
Mr. Sirak has had physiotherapy, massage therapy and acupuncture
treatments. He has had many chiropractor treatments since the accident, and
some IMS (intra-muscular stimulation) treatments. He found benefit from many of
these treatments, however, his finances have not permitted him to attend as
often, or as regularly, as he would have liked.

[28]        
Mr. Sirak has had to take heavy doses of pain medication, but the
medication has become less effective over time. He does not tolerate the side-effects
well.

[29]        
Mr. Sirak’s weight has increased by between 25 kg and 30 kg. He has
tried, unsuccessfully, to lose weight. He said his pain prevents him from
exercising.

The effect of the injuries on Mr. Sirak’s life

[30]        
Mr. Sirak testified that the injuries he suffered in the accident
have had a serious negative affect on all aspects of his life.

[31]        
Since the accident, Mr. Sirak has not been able to engage in the
recreational pursuits he previously enjoyed such as swimming, hiking, biking,
and skating. He does go camping a few times a year, but is unable to help with
setting up the campsite or cutting wood. He testified that even his driving has
become affected. He is nervous driving, and his neck stiffens up if he drives
for more than about an hour at a time.

[32]        
Mr. Sirak testified that his sleep has been affected by his
symptoms. He used to sleep for eight to ten hours a night, but now he typically
sleeps from around midnight until around 4:00 a.m. and then tries to nap during
the day.

[33]        
Mr. Sirak testified that, since the accident, he has become moody
and socially withdrawn. He avoids people because of his appearance, his
physical limitations, his pain, and his poor financial situation. He said that
he does not smile, and does not feel like talking to people. He spends most of
his non-work time at home alone.

[34]        
Mr. Sirak continues to live with P.J., who suffers from anxiety and
is socially withdrawn. Mr. Sirak finds it difficult to maintain their
home. He testified that he only does the bare minimum of housework. He and P.J.
moved to North Vancouver in 2012, but when he lived in Squamish, he relied on
help from his stepdaughter, Sheila McMurran.

[35]        
Ms. McMurran lives in Squamish with her husband, Colin Quinn, and
two young children. Mr. Sirak visits with them regularly, and maintains a
close relationship with them, although, even his visits with them have
decreased. He became visibly emotional when he testified that his pain prevents
him from playing with his grandchildren physically the way he did with his own
children.

[36]        
Mr. Sirak testified that the injuries he suffered in the accident
have had a very significant impact on his ability to work. He took a few weeks
off work immediately following the accident, but he had to return to work for
financial reasons. Using a ladder increases the pain in his low back, and
“cutting-in” (using a brush to apply paint next to corners or trim in
preparation for rolling), often requires overhead work or bending down. Overhead
work aggravates his neck, and bending down aggravates both his neck and his
back. He avoids lifting heavy pails and large ladders. At times, he has relied
on Ms. McMurran to help him at work, especially with heavier tasks and
cutting-in. He tries to limit his own activities to sanding and rolling walls.
He no longer does any stucco work or bricklaying because he can no longer hold
and apply the heavy stucco and bricks.

[37]        
Prior to the accident, Mr. Sirak secured some contracts for larger
painting projects. At the time of the accident, he had already committed to a
50 unit condominium project at Whistler. He finished that project after the
accident by hiring subcontractors to do much of the work. Once that project was
completed, he stopped taking large jobs. He has turned down several large
contracts, including the Holiday Inn at Whistler, a townhouse complex in
Squamish, and the Squamish Civic Centre. When he turns work down, he tells the
person who offered the job that he is too busy. He explained that he does not
want to tell work contacts he is not physically able to do the work out of
concern that word will get out, and customers with smaller jobs will begin to
doubt his physical capability.

[38]        
Mr. Sirak testified that, since the accident, he has significantly
reduced the number of hours he works due to the pain and his reduced energy. He
works only 20 to 30 hours per week. Normally, he works for four or five hours a
day with frequent breaks. If the particular demands of a job require him to
work a longer day, he has to take two to three days off to recover.

The Lay Witnesses

[39]        
Mr. Sirak called several lay witnesses who corroborated his
testimony about his injuries and the impact they have had on his life. All of
these witnesses impressed me as honest and objective, notwithstanding their relationships
with Mr. Sirak.

[40]        
Ms. McMurran is Mr. Sirak’s stepdaughter. She testified she
and Mr. Sirak did a lot of camping, hiking, swimming and family trips when
she was growing up. Mr. Sirak played with her and her sister in a physical
and loving way. She said before the accident, Mr. Sirak never complained
about any kind of pain or numbness. His social life was good. He had a lot of
friends. He went camping and to concerts with his friends. He took care with
his appearance. He came to family events and appeared to enjoy them.

[41]        
Ms. McMurran testified that, since the accident, Mr. Sirak has
missed family events because he has been in too much pain to attend. When he
does visit with her and her children, he interacts with the children but only
while sitting on the couch. She said he does not lift them up and swing them
around like he did with her and her sister. Ms. McMurran testified that Mr. Sirak’s
mood has changed. He is sad and grumpy and gets frustrated. His appearance has
deteriorated to the point that Ms. McMurran spoke to him about his
personal hygiene.

[42]        
Ms. McMurran also testified about the changes in Mr. Sirak’s
ability to work. She started working with him when she was 18 years old and has
worked with him on and off over the years. Between 2002 and 2004, Ms. McMurran
worked full time. She said, at that time, Mr. Sirak’s business was busy.
Most of their work was in Whistler and they did several large commercial
projects. Sometimes Mr. Sirak had two other people working with them.
During this period of time, Mr. Sirak did all aspects of the painting,
including sanding, filling holes, painting, rolling, cutting-in, carrying heavy
equipment and building scaffolding. Ms. McMurran said he was very flexible,
and she commented on seeing him hanging off scaffolding, or painting over his
head. Their workdays were typically between about 7:30 a.m. and 5:00 p.m. She
worked five days a week, but she said Mr. Sirak usually worked Saturdays
as well. She said that when Mr. Sirak finished work at the end of the day,
he was always in a good mood. He was “always a happy guy”.

[43]        
Ms. McMurran did not work with Mr. Sirak between the fall of
2004 and about the summer of 2006. She said that when she started working
again, in the summer of 2006, Mr. Sirak was a lot slower. She had to take
on duties that he used to do, including rolling the ceilings, higher cutting-in
work, baseboards, trims and moving equipment. Mr. Sirak would often take
breaks or leave the site to go to doctor appointments.

[44]        
Ms. McMurran stopped working with Mr. Sirak again in about
September 2007. She returned to work in the summer of 2009, but only on a
casual basis. She testified that since then, the projects have tended to be
even smaller, such as a couple of rooms in a house. When she returned to work
in the summer of 2009, she noticed that Mr. Sirak’s condition had
deteriorated further. She said he seemed to be in a lot of pain. She said he
grabs his back and neck, winces, leans and adjusts his weight. He takes a lot
of breaks. He works for a couple of days, and then he has to take a couple of
days off. Ms. McMurran also testified that she has noted a change in the
quality of Mr. Sirak’s work.

[45]        
Ms. McMurran testified that when she worked with Mr. Sirak in
the earlier years, before the summer of 2009, Mr. Sirak paid her in cash
at about $12 an hour. Since returning to work part time in 2009, she has not
kept track of her hours because she does not expect to be paid. She said that Mr. Sirak
sometimes gives her a bit of cash, but now her motivation for working is simply
to help him out.

[46]        
Ms. McMurran has also helped Mr. Sirak with housesitting, dog
walking and occasional grocery shopping. She testified she has cleaned his
house a few times. She and her husband spent two days putting shelving up in
his garage and organizing his equipment. On three or four occasions, he phoned
and asked her to come help him, because he was unable to move due to the pain.
She said one time she found him immobile on his hands and knees.

[47]        
Ms. McMurran’s husband, Colin Quinn, and Colin Quinn’s parents,
Debbie Quinn and Brian Quinn, also testified, giving similar evidence about the
changes in Mr. Sirak since the accident. They all said he used to be
cheerful, happy, outgoing and well-dressed, but now seems stressed and grumpy.
Since the accident, he has attended fewer family functions. They said he has
become sloppy in his appearance, has gained weight, is slouched over and limps.
They have observed him grabbing his back and leaning on the counter when
standing. Brian Quinn testified that, at the time of the accident in 2005, he
had started a new job and was traveling quite a bit. As a result, he did not
see Mr. Sirak until nearly a year after the accident, and when he did see
him, the change in his appearance and demeanor was pronounced.

[48]        
Stuart Greig met Mr. Sirak 17 years ago at Paramount Painting where
they worked together. Mr. Greig testified that Mr. Sirak was a
reliable painter, and the quality of his work was very good. When Mr. Greig
left Paramount, he started to work for a strata property maintenance
coordinator. In that capacity, he retained Mr. Sirak, before the accident,
on some projects. He has not done so since the accident. He said that
immediately after the accident, Mr. Sirak was not available, and so they
had to hire “a new Mr. Sirak”.

[49]        
Graham Smillie is a self-employed contractor who runs a small
construction company. He has known Mr. Sirak for 14 years, and has
contracted with Mr. Sirak on several occasions. He said that Mr. Sirak
is his favourite painter. Mr. Smillie testified that he has noticed
changes in the time it takes Mr. Sirak to complete a project. He said Mr. Sirak
works more slowly and takes more breaks. On one project, Ms. McMurran did
almost all the work. He said Ms. McMurran now does most of the cutting-in
work. On a couple of occasions, Mr. Smillie has hired someone to assist Mr. Sirak.
Mr. Smillie said he would continue to use Mr. Sirak, and would
accommodate him by giving him more time to complete projects, but he plans to
retire after completing four final homes. He will have no need for a painter
once those four homes are completed.

[50]        
The defence called several lay witnesses, all of whom had retained Mr. Sirak
on painting jobs, or had some form of contact with him on matters concerning
his work. None of these witnesses contradicted Mr. Sirak’s evidence about
his work in any material way. In some respects, the testimony of these
witnesses corroborated aspects of Mr. Sirak’s evidence.

[51]        
Phyllis Carter said she hired Mr. Sirak to do a job in 2006, and he
had a female helper named “Sheila” with him. She said Mr. Sirak did not
appear to have physical limitations, but she did not continually watch him
while he worked. The job was well done. Lorena Mangher testified she hired Mr. Sirak
in 2007 to paint a single-family house. She said he worked with “Sheila”. She
did not watch him work, and could not say whether he came and went through the
course of the day. She was satisfied with the quality of the work. Similar
evidence was given by Ruby Bir, who testified she hired Mr. Sirak to paint
the exterior of a house in the spring of 2009. Darrell Stevens testified that
his strata council hired Mr. Sirak, about five years before the trial, to
do some exterior painting. He had minimal interaction with Mr. Sirak and
did not observe him painting. Scott Brickell is a self-employed construction
contractor. In 2006, he hired Mr. Sirak to paint the interior of a new
single-family home. He testified that Mr. Sirak has mentioned having aches
and pains. He did not watch Mr. Sirak while he painted.

[52]        
Ravinder Bhangoo and her husband, Parm Bhangoo, testified that in 2012
they hired Mr. Sirak to paint their new home. They also owned the townhome
in which Mr. Sirak had lived for several years. Mr. Bhangoo and Mr. Sirak
had a dispute over the painting project that led to Mr. Sirak moving out
of their townhouse. They gave very different versions of that dispute. Mr. Bhangoo
testified he subsequently ran into Mr. Sirak at a store, and Mr. Sirak
punched him and pushed him down. In my view, it is not necessary to make
findings with respect to the dispute between Mr. Bhangoo and Mr. Sirak.
The circumstances leading up to the dispute, and even whether Mr. Sirak
assaulted Mr. Bhangoo, are not relevant to the issues I have to decide.
However, one aspect of Mr. Bhangoo’s evidence was consistent with Mr. Sirak’s
evidence. Mr. Bhangoo and Mrs. Bhangoo both said Mr. Sirak did
not maintain a consistent schedule, and there were days he did not show up for
work at all. Sometimes he would show up, but then only work for a couple of
hours. When he was working, he moved slowly and spent a lot of time talking and
standing around.

[53]        
Brad Pharis is a manager at the Cloverdale Paint store in Squamish. This
is where Mr. Sirak purchased most of his painting supplies. Mr. Pharis
testified Mr. Sirak complained to him, on occasion, about sore shoulders
or a sore back. Mr. Pharis said that it is the policy of Cloverdale Paint
to transport the large, five- gallon pails of paint out to their customers’
vehicles on a dolly, and they do so for almost every purchase.

[54]        
The defendant, Mr. Noonward, also testified. Liability had been
admitted, and Mr. Noonward was not called to testify about the accident.
Rather, he gave evidence about occasions on which he observed Mr. Sirak in
and around Squamish. Mr. Noonward’s testimony was not credible. He said he
had seen Mr. Sirak carrying very large pails of paint out of Cloverdale
Paint, which is unlikely, given Mr. Pharis’ evidence about the store
policy. He denied large portions of his examination for discovery evidence. His
evidence was generally unreasonable. For example, he said he had seen Mr. Sirak
at 7-11, Tim Hortons, Cloverdale Paint, and sometimes just driving around, and
he emphasized that, on these occasions, Mr. Sirak “didn’t appear limited”.
There would be no reason for Mr. Sirak to appear limited to a casual
observer while shopping or driving. I gave no weight to Mr. Noonward’s
evidence.

Video Surveillance

[55]        
The defendants relied on approximately five hours of video-surveillance
evidence collected by four private investigators over three time periods: early
May 2009, April 24, 2013 and July 9 to 23, 2013. The four investigators spent
approximately 180 hours conducting surveillance of Mr. Sirak. Each of the
investigators testified at the trial.

[56]        
I do not intend to review the video surveillance, or the testimony of
the investigators, in detail. In my view, neither contradicted Mr. Sirak’s
testimony. The video did show Mr. Sirak painting. However, he did not deny
he was continuing to work as a painter, albeit with significant pain and
discomfort. Some portions of the video clearly corroborated Mr. Sirak’s
evidence of the pain and discomfort he experiences when painting, the limited
number of hours he paints in a day, and his need to take frequent breaks. A
comparison of the video taken in 2013 with that taken in 2009 appears to
corroborate Mr. Sirak’s testimony that his condition has deteriorated over
the years.

[57]        
The video taken on July 22 and July 23, 2013 was quite compelling. On
July 22, 2013, Mr. Sirak is seen working for approximately an hour from
about 2:30 p.m. until about 3:30 p.m. He is sanding beams and pillars using an
electric sander. He takes many short breaks – sometimes leaning on scaffolding
or one of the pillars, and sometimes pacing back and forth. At one point, he
appears to be speaking on the phone when he turns to face one of the pillars,
rests his forearms against it, and leans his entire upper body into it with his
forehead appearing to touch it.

[58]        
On July 23, 2013, Mr. Sirak is seen working for less than an hour,
from approximately 2:30 p.m. to about 3:15 p.m. He moves slowly. He takes
frequent breaks. He climbs about six to eight rungs on a ladder and steps onto
some scaffolding. While on the scaffolding, he appears to take a short break
every few minutes, during which he often holds onto, or leans on the ladder. At
one point, he places both hands on one of the ladder rungs and rests his head
on his hands. He appears to grimace in pain. He appears to rub his lower back
with his left hand, and then to rub his neck with his right hand. At one point,
he is on his hands and knees crawling forward very slowly and appears to be
grimacing.

The Medical Evidence

[59]        
The clinical records of various treating physicians were filed as
exhibits at the trial. In addition, Mr. Sirak relied upon the expert
evidence of his treating physicians, Dr. Klein and Dr. Sahjpaul, as
well as Dr. Tony Giantomaso, a physiatrist, who conducted an independent
medical examination of Mr. Sirak, at the request of his counsel. The
defendants relied on the evidence of Dr. Iain Dommisse, an orthopedic
surgeon, and Dr. Ian Turnbull, a neurosurgeon, each of whom conducted an
independent medical examination of Mr. Sirak, at the request of counsel
for the defendants. In addition, the defendants called, as a witness, Dr. Myron
Dawydiak, a chiropractor, who treated Mr. Sirak, both before and after the
accident.

[60]        
The expert reports, in addition to containing the author’s opinions,
also summarize Mr. Sirak’s history as relayed by him, and note the
expert’s examination findings at particular points in time. The clinical
records, the summaries of Mr. Sirak’s history, and the examination
findings, as noted in the various reports are, with one exception, consistent
with Mr. Sirak’s testimony regarding his injuries and their progression
over time. The one exception was Dr. Turnbull’s assessment of Mr. Sirak’s
mobility and strength, which I will address below.

[61]        
Since the accident, Mr. Sirak has undergone x-rays, CT scans and
MRIs. These have consistently shown diffuse degenerative changes in his
cervical and thoracic spine, including disc protrusions at C5/6 and L5/S1, with
apparent nerve root compression.

Dr. Dawydiak

[62]        
Dr. Dawydiak is a chiropractor, who Mr. Sirak started seeing
in 1999. Dr. Dawydiak’s clinical records note that, during Mr. Sirak’s
first visit, he reported neck pain with headaches, occasional low back and left
leg pain off and on for 20 years. Mr. Sirak denied complaining to Dr. Dawydiak
about headaches, and he denied any significant pre-existing neck or back pain.
He said that, in the time prior to the accident, he saw the chiropractor for
body stiffness as distinct from pain.

[63]        
Mr. Sirak attended for chiropractic treatments a few times a year
in the years prior to the accident. Dr. Dawydiak’s clinical records, for
that time period, contain some notes of Mr. Sirak complaining of a stiff
or sore neck, particularly following a previous chiropractic treatment. Prior
to the accident, there are no notes of any neurological symptoms such as
numbness, tingling or radicular pain in the legs or arms.

[64]        
There was a dramatic increase in the number of Mr. Sirak’s
chiropractic visits following the accident. For example, in 2003 and 2004,
there were a total of five visits each year; whereas, in the year following the
accident, there were 105 visits. Dr. Dawydiak testified that the character
of the treatments changed after the accident. He characterized his treatment of
Mr. Sirak, before the car accident, as maintenance – like taking a car in
for a tune-up. Following the accident, he treated Mr. Sirak for complaints
of chronic pain, symptoms of numbness in his hands and feet, and pain radiating
down his leg and into his arms.

[65]        
Dr. Dawydiak’s records contain an entry dated August 9, 2001 that
refers to a rear-end car accident having occurred “two weeks ago”. Mr. Sirak
denied being in any car accident in August 2001, or at any time, prior to the
accident in issue in this case. In cross-examination, Dr. Dawydiak agreed
there may have been a mistake in his chart, and that it is possible this note
related to a different patient.

Dr. Klein

[66]        
Dr. Klein is a general practitioner who, at the time of the trial,
had been practicing as a general practitioner for approximately 24 years. Dr. Klein
became Mr. Sirak’s general practitioner in mid-2000, and has been his
primary treating physician since then. Dr. Klein prepared reports dated
March 17, 2010, October 30, 2012 and May 3, 2013. No objection was made to Dr. Klein’s
qualifications as a general practitioner who has experience treating patients
with herniated discs. No objections were made to the admissibility of any
portion of Dr. Klein’s reports.

[67]        
Dr. Klein testified that, prior to the accident, he saw Mr. Sirak
about once a year. Dr. Klein’s clinical records show that most of Mr. Sirak’s
complaints during the time period prior to the accident were common complaints
such as cough and sore throat. There are a couple of references to knee
inflammation, and a note of a fracture of Mr. Sirak’s right shoulder in
July 2003. There are no references to neck pain, back pain or neurological
symptoms, and nothing to indicate any significant ongoing health concerns.

[68]        
As already noted, Dr. Klein’s clinical records, for the period
after the car accident, are consistent with Mr. Sirak’s testimony
concerning the nature, extent and progression of the injuries. It is not
necessary to comprehensively summarize Dr. Klein’s clinical treatment of Mr. Sirak
in the years following the accident. The following are some of the key aspects:

(a)  Three days after the
accident, Mr. Sirak saw a locum physician who was working in Dr. Klein’s
office. Her examination documented decreased cervical range of motion and pain;
stiff and sore muscles in the neck and upper back; and decreased back flexion.

(b)  On a follow-up visit a few
days later, the same locum physician noted a new complaint of intermittent
tingling of the left calf as well as pain, weakness, and tingling in the left
forearm and thumb. She suspected C8 nerve-root compression and ordered x-rays.

(c)  Dr. Klein’s first visit
with Mr. Sirak after the accident was on February 18, 2005. He noted
complaints of persistent headaches, and neck and back pain radiating to the
left leg.

(d)  On March 15, 2005, Dr. Klein
noted mildly decreased neck range of motion, lumbar pain on flexion, diminished
truncal flexion and range of motion, as well as increased muscle tone. At this
time, he described Mr. Sirak as having moderate whiplash associated
disorder and felt he had a mild neuropathy, likely due to entrapment.

(e)  In July 2005, Mr. Sirak
was referred to Dr. Dean Johnston, a neurologist, due to his continuing
complaints of numbness, tingling and radiating pain.

(f)    Mr. Sirak
continued to complain of ongoing neck pain and back pain, as well as neurologic
symptoms. In March 2006, he was referred to IMS physiotherapy. In May 2006, Dr. Klein
suggested the addition of acupuncture therapy.

(g)  In August 2006, Dr. Klein
referred him to Dr. Hershler, a physiatrist, who recommended continued
chiropractic and massage therapy treatments.

(h)  In December 2009, Dr. Klein
referred Mr. Sirak to the Rapid Access Spine Clinic for an opinion
regarding the potential for surgery.

(i)    During the first
ten months of 2010, Mr. Sirak continued to complain of pain and fatigue.
He saw Dr. Mutat, who recommended surgery. Mr. Sirak requested a
second opinion. In late 2010, Mr. Sirak saw Dr. Sahjpaul, who also
recommended surgery. Mr. Sirak followed up with Dr. Sahjpaul, but was
hesitant to proceed with surgery before resolution of this case.

(j)    Throughout 2011,
Mr. Sirak continued to complain of pain and numbness which was affecting
his ability to work.

(k)  By March 2012, Mr. Sirak
was complaining of pain that was affecting his ability to sleep.

(l)    Over the next
year or so, Mr. Sirak continued to see Dr. Klein on a regular basis,
and continued to complain of pain and neurological symptoms. Dr. Klein
noted that a number of pain medications were tried, none of which resulted in
much improvement.

[69]        
As already noted, Dr. Klein prepared three expert reports. In his
first report, dated March 17, 2010, Dr. Klein stated that “Mr. Sirak
likely faces a future involving ongoing pain symptoms, directly consequent to
his motor vehicle accident of February 5^th, 2005”, and has
“described ongoing functional limitations regarding his current career as a
painter”. He said he had “no great hopes that these symptoms or limitations
will improve from any new or as-yet untried therapeutic interventions” but that
“ongoing therapies [likely for the remainder of his life] will be beneficial in
management of his ongoing symptoms”.

[70]        
In the same report, with respect to the prospect of surgery, Dr. Klein
stated, in part, as follows:

…even should surgery be performed
successfully with alleviation of some of Mr. Sirak’s symptoms, I am
reasonably confident that he will most likely be left with a majority of his
current symptoms even thereafter. My fear would be that these symptoms could
well gradually worsen rather than improve, leaving Mr. Sirak in an even
more compromised condition than his current state.

[71]        
In his second report, dated October 30, 2012, Dr. Klein said his
opinions regarding Mr. Sirak had not changed materially. He said that Mr. Sirak
“has ongoing pain and functional and occupational limitations, particularly
with regards to his current occupation as a painter”, and that “it continues to
seem likely that Mr. Sirak faces a future of significant chronic pain and
functional limitations, with less effective earning potential, and a
potentially shortened work life, directly consequent to his motor vehicle
accident of February 5, 2005”. He noted that Mr. Sirak has received some
symptomatic benefit from physiotherapy and massage, particularly IMS
treatments, but no permanent benefit. Nevertheless, he continued to recommend
ongoing therapy “in order to maintain his best possible level of functionality,
pain control, and overall quality of life”.

[72]        
In his third report, dated May 3, 2013, Dr. Klein expressed similar
opinions. He concluded as follows:

Mr. Sirak suffers ongoing
pain and functional and occupational limitations, particularly with regards to
his current occupation as a painter. … As a consequence of his injuries, I
would think it reasonable to assume that he would likely require and benefit
from ongoing therapy – conceivably for the remainder of his life – in order to
maintain his best possible level of functionality, pain control, and overall
quality of life. Even should spinal surgery (on two non-contiguous levels most
likely) be undertaken and successful, the chances of complete symptom
resolution and pain alleviation are unfortunately quite small. It would
therefore seem likely that Mr. Sirak faces a future of at least some
degree of chronic pain, functional limitations and diminished effective earning
potential, as well as a potentially (probably) significantly shortened work
life, directly consequent to his motor vehicle accident of February 5, 2005.
Despite surgery and/or other therapies, at least some of these symptoms and
functional limitations may conceivably with time actually worsen rather than
improve. Should that occur, at some point he may very likely be unable to
continue working in any fashion (even in his currently significantly limited
fashion) as a painter – and would then benefit from job retraining towards a
more sedentary career.

Dr. Sahjpaul

[73]        
Dr. Sahjpaul is a neurosurgeon, qualified to practice in Ontario
and British Columbia. In 2001, he became a member of the Combined Neurosurgical
and Orthopedic Spine Program at Vancouver General Hospital, and an assistant
professor of neurosurgery at the University of British Columbia. Since 2007, he
has been Chief of Surgery at Lions Gate Hospital.

[74]        
As already noted, Dr. Sahjpaul has been one of Mr. Sirak’s
treating practitioners. He prepared a report dated November 3, 2012, which
summarizes the history he obtained from Mr. Sirak, his own findings based
on his examinations of Mr. Sirak, and his review of the diagnostic imaging
reports. That report expresses the opinions Dr. Sahjpaul formed in the
treatment of Mr. Sirak, and concludes with a summary of his diagnoses and
opinions regarding the cause of Mr. Sirak’s conditions and his prognosis. Dr. Sahjpaul
also prepared a report dated June 4, 2013, which commented upon the reports of Dr. Dommisse
and Dr. Turnbull. No objection was made to Dr. Sahjpaul’s
qualifications, or to the admissibility of any portion of his reports.

[75]        
Following his first consultation with Mr. Sirak in September 2010, Dr. Sahjpaul’s
preliminary diagnosis was “right sciatica secondary to an L5/S1 disc protrusion
noted on CT scan in 2006”. Following his second consultation and review of an
MRI that had been conducted in January 2011, Dr. Sahjpaul’s opinion was
that Mr. Sirak had a symptomatic L5/S1 disc herniation and was a candidate
for lumbar surgery. He was also of the opinion that Mr. Sirak had cervical
disc disease and nerve-root compression, which might also be alleviated through
surgery.

[76]        
Dr. Sahjpaul summarized the findings of his examination conducted
on November 3, 2012 as follows:

His examination reveals him to be
cooperative, no abnormal pain behavior, cervical spine range of motion reveals
a moderate degree of restriction in cervical extension with complaints of
posterior neck pain, cervical flexion to about 45° causes a tight painful
sensation in the posterior neck musculature, no Lhermitte’s phenomenon, but
Spurling sign is positive on the right with reproduction of numbness and
tingling down the right arm. His lumbar examination reveals moderate tenderness
in the para lumbar musculature bilaterally, limitation to lumbar flexion and
extension with complaints of lumbar pain. Straight leg raising is positive on
the right at about 45°. He has reduced sensation in the right lateral foot. The
reflexes are 1+ but ankle reflexes are absent, despite reinforcement. He has
mild weakness and repetitive stoppage gate on the right, but no muscle atrophy.

[77]        
In his November 3, 2012 report, Dr. Sahjpaul made the following
comments regarding certain of the diagnostic imaging reports:

With respect to a January 2006
lumbar CT scan he said “L5-S1 disc pathology is clearly seen. On the right side
there is some calcification of a herniated L5-S1 disc with definite compression
on the right S1 nerve root. The left S1 nerve root is also compressed in the
lateral recess from disc and fact hypertrophy”.

[78]        
With respect to an October 2009 cervical MRI he said, “large right C5/6
disc osteophytes complex compressing right C6 root, touching spinal cord but
not compressing it. Mild left C5/6 foraminal stenosis. Mild to moderate right
C6/7 foraminal stenosis”.

[79]        
With respect to a January 2011 cervical MRI, he said, “C5/6 and C6/7
spondylosis changes similar to MR [sic] from 2009; ongoing nerve-root
compression”.

[80]        
With respect to a January 2011 lumbar MRI he said, “L5-S1 disc
herniation with definite right S1 root compression. There is also some
compression of the left S1 root.”

[81]        
In his November 3, 2012 report, Dr. Sahjpaul expressed his
diagnoses and his opinions regarding causation as follows:

Diagnoses:

1.     Spinal
pain (neck pain and low back). Myofacial Causation secondary to motor vehicle
accident.

2.     Upper
extremity symptoms (bilateral, currently primarily right) consistent with
cervical radiculopathy secondary to cervical spondylosis and nerve root
compression. The spondylosis is preexisting but rendered symptomatic by the
motor vehicle accident.

3.     Ulnar
neuropathy – mild, but persistent. The ulnar neuropathy is contributing to but
not the sole cause of some of his arm symptoms (numbness in his medial forearms
and hands, and weakness in his grip strength). Further comments regarding the
ulnar neuropathy are left to more qualified individuals (Dr. Dean
Johnston) who diagnosed the condition.

4.     Leg
symptoms – Mr. Sirak’s post motor vehicle accident symptomology was
initially primarily left leg, but subsequently right leg and is currently
mainly involving his right leg. The initial CT scan post motor vehicle accident
and subsequent investigations including CT scan in 2008 and more recently MRI
scan have confirmed the presence of L5-S1 disc pathology that in my opinion was
either caused by the MVA or pre-existing and rendered symptomatic by it. This
disc pathology accounts for his leg symptoms. But for the motor vehicle
accident, this pathology probably would not have become symptomatic with any
reasonable prediction.

Comments Regarding Above Diagnoses: The multifocal and
bilateral nature of Mr. Sirak’s symptoms deserve comment. Prior to the MVA
he was a healthy individual with no spinal or neurological issues. He was
working full-time. Following the motor vehicle accident, he has had persistent
and ongoing symptoms. The documentation immediately following the motor vehicle
accident refers, in addition to neck pain, to primarily left arm symptoms, but
there is reference to leg symptoms (bilateral). The investigations (CT and
subsequently MRI) demonstrated sufficient bilateral pathology in both his C
spine and lumbar spine to account for much of the symptomology (except for the
ulnar neuropathy contribution).

[82]        
As already noted, Dr. Sahjpaul also wrote a report dated June 4,
2013, which responded to the reports of Dr. Dommisse and Dr. Turnbull.
In that report, Dr. Sahjpaul commented specifically on the question of
whether any pre-existing degenerative changes would have become symptomatic in
any event, even if the accident had not occurred. In this regard he stated as
follows:

Regardless, it is my opinion that
the changes, even if they were indeed degenerative, would not have become
symptomatic, but for the motor vehicle accident in question. Degenerative
changes in the spine are very common in the general population and the presence
of such radiologic changes are not predictably correlated with clinical
symptoms. In fact, the majority of such degenerative changes have no clinical
correlate.

[83]        
In cross-examination, Dr. Sahjpaul said that Mr. Sirak’s
lumbar disc herniation was either caused by the accident or it pre-existed the
accident. He could not say one way or the other. However, he firmly reiterated
his opinion that if the herniated disc pre-existed the accident, it was
rendered symptomatic by the accident. Dr. Sahjpaul was not cross-examined
on his opinion that Mr. Sirak would not have become symptomatic had the
accident not occurred.

[84]        
Dr. Sahjpaul’s opinion regarding Mr. Sirak’s prognosis was
guarded, even if he has the surgeries. He said that if Mr. Sirak has the
lumbar surgery, there is a “very good chance that he will experience
significant but incomplete improvement in his right leg symptoms”. He also said
that improvement in Mr. Sirak’s back pain, however, “cannot be predicted
and is not expected”. He said that if Mr. Sirak has the cervical surgery,
he will probably have “a significant, but incomplete improvement in his right
arm symptoms”, and that he may also achieve “an improvement in his neck pain,
but this will be incomplete because his neck pain is multifactorial and primarily
myofacial”.

[85]        
Dr. Sahjpaul’s opinion, with respect to Mr. Sirak’s ability to
continue to work as a painter, was pessimistic. He stated:

With regards to vocational
implications, without surgical treatment, it is my opinion Mr. Sirak will
not notice any further improvement in his symptom complex. He may continue to
work, but will do so with ongoing symptoms. His job as a painter requires
repetitive and constant neck extension, which in my experience worsens neck
pain and nerve root compression from cervical spondylosis. I generally counsel
patients to avoid this type of work if they present with cervical symptoms and
cervical nerve root compression symptoms. Even with surgical intervention, it
is my opinion that he probably will not be able to return to his pre-motor
vehicle accident level of vocation because of the requirements for neck
extension and constant neck motion.

[86]        
Dr. Sahjpaul advised that the lumbar surgery is a daycare
procedure, following which Mr. Sirak would have to take two to three
months off work, during which time he would receive physiotherapy. He advised
that the cervical surgery would involve an overnight stay in hospital, and six
to eight weeks of rest before engaging in rehabilitation, followed by
physiotherapy, for a further four to six weeks.

Dr. Giantomaso

[87]        
Dr. Giantomaso is a specialist in physical and rehabilitation
medicine, qualified as such by the Royal College of Physicians and Surgeons of
Canada. He has a community-based practice, and is also a staff physician for
the Brain Injury Rehabilitation Program for the Department of Physical and
Rehabilitation Medicine at the Foothills Medical Center in Calgary. He is a
clinical assistant professor at the University of Calgary medical school. He
has expertise in chronic pain and the management of disc herniation.

[88]        
On April 11, 2014, Dr. Giantomaso interviewed Mr. Sirak, and
conducted an independent medical examination of him at the request of Mr. Sirak’s
counsel. He also reviewed Dr. Klein’s clinical records; the expert reports
of Dr. Sahjpaul, Dr. Dommisse and Dr. Turnbull; the diagnostic
imaging reports, and other medical records. No objection was made to Dr. Giantomaso’s
qualifications, or to the admissibility of any portion of his report.

[89]        
Dr. Giantomaso’s physical examination revealed decreased cervical
and lumbar range of motion. He also noted that he observed no “overt pain
behaviors such as overreaction, regionalization, distraction or simulation”
during his examination and interview of Mr. Sirak, and that Mr. Sirak
had “absolutely no Waddell signs”.

[90]        
Dr. Giantomaso’s diagnoses are similar to those of Dr. Sahjpaul.
It was Dr. Giantomaso’s view that Mr. Sirak suffers from a post-traumatic
cervical sprain/strain injury, consistent with a WAD-II injury that is chronic,
a lumbar injury with ongoing symptoms of right S1 radiculopathy and associated
post-traumatic low back pain, and post-traumatic headaches. In Dr. Giantomaso’s
opinion, these injuries were directly caused by the accident. He also expressed
the view that Mr. Sirak had pre-existing asymptomatic axial spondylosis,
and that he now has bilateral clinical ulnar neuropathy which is unrelated to
the accident.

[91]        
Where Dr. Giantomaso and Dr. Sahjpaul depart in their opinions
is with respect to the advisability of surgery. In this regard Dr. Giantomaso
stated as follows:

At this point, it is doubtful
that more than nine years post symptom onset that surgical management would
provide any significant benefits. [Mr. Sirak] has not had any progressive
motor loss or sensory loss and his symptoms have been stable. Thus, at best,
surgical management would maintain his current symptoms and at worst, may
increase his pain or he could have a related complication of surgery. Based on
a risk benefit model, in my opinion, more than nine years post injury, [Mr. Sirak]
is unlikely to have a significant difference in his functional and/or pain
levels post-surgery which based on his documentation could have included a
cervical or lumbar discectomy and/or decompression. Although this is somewhat
outside of my scope of specialty, I do currently work in a clinic with multiple
spinal surgeons, and do see their pre- and post-surgical patients as well as
refer many patients for surgery. This opinion is based on my experience with
similar patients as well as available evidence on post-surgical recovery remote
from injury.

[92]        
Dr. Giantomaso made a number of recommendations for potentially
relieving pain on a short-term basis, and “provid[ing] a better foundation for
further tolerance and capacity for at least non-vocational activities in the
future”. These included a referral to an interventional pain specialist for
consideration of the use of facet blocks and an epidural; the consideration of
the newer medications that have not yet been trialed; and active rehabilitation,
including core strengthening, stabilization exercises, and aerobic and
resistance training.

[93]        
Dr. Giantomaso’s opinion as to Mr. Sirak’s prognosis was poor.
Given the length of time that has passed since the accident, it is his view
that Mr. Sirak “has met maximal medical improvement and is very unlikely
to improve to any significant degree in the future”. He reiterated that his
treatment recommendations may decrease pain and increase function, but they
should be considered as part of a long-term pain management strategy and not as
curative.

Dr. Dommisse

[94]        
Dr. Dommisse practiced as an orthopedic surgeon for approximately
31 years. From the late 1990s, his work was almost exclusively related to the
spine. He retired from active practice at the end of 2011. His work is now
restricted to conducting independent medical examinations and some
accreditation work.

[95]        
Dr. Dommisse saw Mr. Sirak for an independent medical
examination on January 20, 2010, nearly five years before the trial. He
prepared a report dated January 27, 2010 and testified at the trial. No
objection was made to Dr. Dommisse’s qualifications or to the admissibility
of any portion of his report.

[96]        
Dr. Dommisse interviewed Mr. Sirak and conducted a physical
examination. He had Mr. Sirak complete a pain diagram which showed
symptoms, including pins and needles and stabbing pain in his neck, right
shoulder, both arms and legs. His report notes Mr. Sirak’s complaints as
including “left posterior hip pain which he stated is present ‘nonstop’”; “pain
shooting down his left leg into his heel” and “pain [that] may shoot up his
spine as well”; increased pain from walking, prolonged sitting, and driving;
tingling in his legs; right shoulder pain; pain in his hands; numbness in his
hands; neck symptoms that have increased; and neck pain that is aggravated by
extending his neck while painting ceilings. On examination, Dr. Dommisse
noted decreased neck range of motion, and decreased back range of motion, in
addition to tenderness on palpation.

[97]        
Dr. Dommisse’s diagnosis was a grade II strain of the cervical and
lumbosacral spine caused by the accident. In cross-examination, Dr. Dommisse
explained the difference between a grade II strain and a grade III strain. He
said a grade II strain is restricted to soft-tissue injury; whereas, a grade
III strain implies nerve and/or spinal cord damage, and is accompanied by
neurological findings. He acknowledged that there are references to
neurological symptoms in Dr. Klein’s clinical records but he maintained
that, although Mr. Sirak complained of numbness and tingling, there are
many causes of those symptoms, such as muscle spasm in the neck, that do not
suggest nerve damage. In his view, while Mr. Sirak had subjective symptoms
of sensory change, he did not have objective symptoms of nerve damage, such as
muscle weakness and reflex changes.

[98]        
In cross-examination, Dr. Dommisse confirmed that, at the time he
conducted his examination of Mr. Sirak, the most up-to-date medical
records he had to review were from September 2009. He confirmed that he does
not know anything of the progression in Mr. Sirak’s condition since his
examination of Mr. Sirak. He also acknowledged that five years is unusually
prolonged for a grade II strain, and that a patient with limited range of
motion and ongoing symptoms five years after an accident, would appropriately
be characterized as suffering from chronic pain.

[99]        
In his report, Dr. Dommisse expressed the view that the
degenerative changes involving Mr. Sirak’s lower lumbar spine, that were
noted at the time of his January 2006 CT scan, “likely predated the Accident”.
In cross-examination, he explained that the CT scan, performed approximately a
year after the accident, showed widespread degenerative changes, or changes at
multiple levels, which suggests gradual and long-standing development.

[100]    
In his report, Dr. Dommisse expressed the following view with
respect to causation:

In my opinion, Mr. Sirak’s
complaints have been caused by the accident in part. It is likely that the
degenerative changes are predominantly causing his symptoms at this time. In my
opinion, these degenerative changes within his lower lumbar spine would likely
preclude him from bricklaying work.

[101]     In cross
examination, he clarified his opinion on causation, and agreed it was the
combination of the pre-existing degenerative changes, together with the
accident, that caused Mr. Sirak’s symptoms, and explains the unusual
duration of them. He did not express any opinion as to whether Mr. Sirak’s
degenerative changes would have become symptomatic even in the absence of the
accident.

[102]     In his
report, Dr. Dommisse also expressed the view that Mr. Sirak is not
temporarily disabled, and that he will not be permanently disabled as a result
of his injuries. However, as noted above, he did say that Mr. Sirak was
disabled from bricklaying work. In cross-examination, he agreed that Mr. Sirak
was precluded from any other occupations involving physical work, such as extended
bending, twisting or lifting. He also agreed that if Mr. Sirak was not
able to spend as many hours painting as he had before the accident, that would
change his opinion about whether or not Mr. Sirak was disabled.

[103]     Dr. Dommisse
recommended cortisone injections and an active, independent exercise program.
In his view, ongoing passive modalities, such as massage therapy and
chiropractic adjustments, are not likely to be of any value.

Dr. Turnbull

[104]     Dr. Turnbull
practiced as a neurosurgeon for 33 years. He retired from active practice in
1999, and since then, his work has been restricted to consulting and conducting
independent medical examinations.

[105]     Dr. Turnbull
saw Mr. Sirak for an independent medical examination on April 24, 2013. He
prepared a report dated April 30, 2013 and testified at the trial. No objection
was made to Dr. Turnbull’s qualifications, or to the admissibility of any
portion of his report.

[106]    
Dr. Turnbull interviewed Mr. Sirak and conducted a physical
examination. He stated in his report that he could not detect any significant
lessening of mobility, and that Mr. Sirak has “good strength in the
muscles of his shoulders, arms, and hand as well as in his legs and feet”. Dr. Turnbull
was the only medical practitioner who expressed the view that Mr. Sirak’s
mobility and strength had not been affected. Dr. Turnbull assessed Mr. Sirak’s
mobility by watching him walk down a hallway. He assessed his strength by trying,
himself, to physically force Mr. Sirak out of a particular position. Dr. Turnbull
is a slight, elderly man. Mr. Sirak is a large, powerfully-built,
middle-aged man. On the question of Mr. Sirak’s mobility and strength, I
prefer the evidence of Gerard Kerr, an occupational therapist, who conducted an
extensive evaluation of Mr. Sirak’s functional abilities.

[107]    
Dr. Turnbull’s diagnosis was stated, as follows, in his report:

My diagnosis is that Pavel Sirak
has spondylosis of the spinal column and sustained soft tissue injuries to his
neck and back in the subject MVA. The soft tissue injuries have had ample time
to resolve, but he continues to have some persisting pain.

[108]     He also
expressed the opinion that Mr. Sirak’s “current pain problems stem from
the MVA and from the underlying spondylosis”. In cross-examination, he
acknowledged that it would be appropriate to characterize Mr. Sirak’s
condition as chronic pain.

[109]     While Dr. Turnbull
expressed the view that Mr. Sirak’s spondylosis had been developing over
many years, he did not express any opinion as to whether Mr. Sirak would
have become symptomatic in the absence of the accident.

[110]     In terms
of disability, Dr. Turnbull stated, in his report, that Mr. Sirak is
“not permanently disabled and is at present temporarily disabled mildly, if at
all”. In cross-examination, he acknowledged that this opinion was based on Mr. Sirak’s
ability to work. However, in his report, Dr. Turnbull noted that Mr. Sirak
told him that he is working “on and off as a painter, working an average four
hours a day, three or four days a week”. In cross-examination, Dr. Turnbull
said he was not aware that, prior to the accident, Mr. Sirak was working
as much as 60 hours per week. He acknowledged that if Mr. Sirak’s work
pattern had changed since the accident, then it would be appropriate to
characterize Mr. Sirak as disabled.

[111]     In his
report, Dr. Turnbull expressed the view that Mr. Sirak would not
benefit from surgery “unless his spondylotic changes were to progress to the
point he is developing abnormalities of his spinal cord or spinal nerves”.
However, in cross- examination, he acknowledged that Dr. Sahjpaul’s
consultation report (which Dr. Turnbull mentioned in his own report),
indicated that an MRI scan had shown disc herniation with right S1 nerve-root
compression, right C5/6 disc/osteophyte complex compressing the right C6 nerve
root, and moderate right C7 foraminal compromise. Dr. Turnbull agreed that
these are the kind of abnormalities that would suggest there could be some
benefit from surgical treatment.

Other Expert Witnesses

[112]     In
addition to the expert medical evidence of Dr. Klein, Dr. Sahjpaul
and Dr. Giantomaso, Mr. Sirak relied upon the reports and testimony
of Gerard Kerr, an occupational therapist; Avita Sharma, a vocational
rehabilitation consultant; Douglas Hildebrand, an economist; and Michael Hines,
an accountant. I will discuss the evidence of Mr. Hildebrand and Mr. Hines
later in the sections of this judgment addressing the financial consequences of
Mr. Sirak’s injuries.

Mr. Kerr

[113]     Gerard
Kerr has practiced as an occupational therapist for 26 years. His practice
primarily consists of medical/legal assessments and consultation services,
including cost-of-future care assessments, and work-capacity evaluations. He
has performed several hundred future-care assessments and more than 2000 work-capacity
evaluations during his career.

[114]     Mr. Kerr
performed two work-capacity evaluations of Mr. Sirak; one on June 29, 2010,
and one nearly three years later on March 8, 2013. The results of those two
evaluations, and Mr. Kerr’s associated opinions, are expressed in reports
dated June 30, 2010 and April 17, 2013, respectively. Mr. Kerr also
prepared two cost of future care assessments, the second being an update of the
first. The cost of future care reports are dated May 10, 2012 and April 21,
2013. No objection was taken to Mr. Kerr’s qualifications, or to the
admissibility of any portion of his reports.

[115]     I will
refer to Mr. Kerr’s cost of future care assessments in more detail in the
section of this judgment assessing Mr. Sirak’s damages for cost of future
care. At this point, I will address only the work-capacity evaluations. A work-capacity
evaluation attempts to measure a person’s functional abilities, and is usually
focused on a particular type of job. Each of Mr. Sirak’s evaluations was
conducted over several hours during a single day. During each evaluation, a
history was taken from Mr. Sirak, medical records were reviewed, and a battery
of tests was performed.

[116]     The
evaluation includes tests to assess, among other things, the physical effort
the subject is exerting while performing various tests, and the subject’s
physical capacity, including hand dexterity, body mobility, lifting, carrying,
pushing and pulling ability. The tests include work simulations which, in Mr. Sirak’s
case, involved simulated painting. The tests are designed to permit an
assessment of the consistency between the subject’s self-report of function
with his demonstrated function. The tests also assess endurance. For the first
evaluation, Mr. Sirak participated in six and-a-half hours of activity,
and for the second evaluation, he participated in four hours of activity.

[117]     In both of
his work-capacity evaluation reports, Mr. Kerr stated that Mr. Sirak
participated in the testing with high volumes of effort. Mr. Kerr
expressed the view that, as a result, the test results are considered “an
accurate measure of physical capacity”. Mr. Kerr also stated that Mr. Sirak
self-reports of “function/pain were consistent with objective observation of
function and are therefore considered reliable”.

[118]     Mr. Kerr
opined that Mr. Sirak is not suited to many physical activities, including
prolonged overhead reaching and low level work postures; more than incidental
stairclimbing; more than moderate amounts of low ladder climbing; high ladder
work; more than short duration, infrequent stooping; more than incidental trunk
twisting; more than infrequent, short duration kneeling/crouching; more than
basic balance demands; more than incidental strength demands; sitting for more
than one to two hours; and walking on steep, slippery or unstable surfaces on
more than an incidental basis.

[119]     Mr. Kerr’s
conclusion, as stated in his second work-capacity report, is that Mr. Sirak
is “poorly suited to the physical demands of a painter and without significant
symptom resolution … he should consider a lighter demand occupation.”

Ms. Sharma

[120]     Anita
Sharma is a vocational rehabilitation consultant. She has experience providing
vocational services to individuals with a variety of disabilities. Ms. Sharma
conducted a vocational assessment of Mr. Sirak on June 22, 2010, which
consisted of an interview and a battery of vocational tests. The results of her
assessment, and her opinions, are expressed in a report dated August 13, 2010.
No objection was taken to Ms. Sharma’s qualifications, or to the
admissibility of any portion of her report.

[121]    
Ms. Sharma’s conclusions included the following:

As compared to the general working population, Mr. Sirak
demonstrated form perception, spatial aptitude, and manual dexterity in the
average range; clerical perception, finger dexterity, and motor coordination in
the low average range; and general learning ability, verbal aptitude, and
numerical aptitude in the below average range.

Mr. Sirak demonstrated average ability in word reading
(grade equivalent: 12.7); and below average ability in math computation (grade
equivalent: 4.9), sentence comprehension (grade equivalent: 6.2), reading comprehension
(grade equivalent: 9.9), and spelling (grade equivalent: K.4).

Mr. Sirak’s vocational
testing scores indicate he is not a candidate for formal academic retraining
programs of two years or longer. He may be better suited to skill-based, short-term
training, or hands-on learning environments.

[122]     In Ms. Sharma’s
opinion, Mr. Sirak’s previous occupations, including painting, masonry,
bricklaying, furniture delivery, truck driving, bus driving, and aluminum-rail
installation, are no longer suitable for him. In her view, he is limited in his
work capacity “of work up to select entry-level medium strength demands with
restrictions in sitting, standing, walking, balance, ladder and stair climbing,
kneeling, bending, crouching, stooping, overhead work …” He has a limited
number of job options available, such as storage rental clerk, parking lot
attendant, self-service gas station attendant, and cashier or retail clerk. She
said these occupations typically pay minimum wage, and Mr. Sirak’s need
for accommodation, negatively impacts his suitability for even these kinds of
jobs. She expressed the view that “he is not competitively employable”. Given
his low vocational test scores, self-reported difficulty with English spelling
and writing, his physical limitations, and his age, it was her view that formal
academic retraining programs would not be recommended.

Credibility and Reliability

[123]     As in most
cases involving subjective complaints of pain, much turns on Mr. Sirak’s
credibility, and it is particularly important to exercise caution and examine
his evidence carefully: Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.)
at 399. If his account is not convincing, the hypothesis upon which his medical
evidence rests, is undermined: Samuel v. Chrysler Credit Canada Ltd.,
2007 BCCA 431 at paras. 15, 43-44.

[124]     The
factors to be considered when assessing credibility were summarized in Bradshaw
v. Stenner, 2010 BCSC 1398 at para.186, aff’d 2012 BCCA 296, leave to
appeal ref’d, [2012] S.C.C.A. No. 392. They include the firmness of the
witness’s memory, the ability of the witness to resist the influence of
interest in modifying his recollection, whether the witness’s evidence
harmonizes with independent evidence that has been accepted, whether the
witness changes his evidence during direct examination and cross-examination
(or between examination for discovery and trial), or is otherwise inconsistent
in his recollections, the witness’s demeanor, and whether the witness’s
evidence seems generally unreasonable, impossible, or unlikely.

[125]     The
defendants submit that Mr. Sirak suffered only moderate soft- tissue
injuries, and that he is exaggerating his symptoms. The defendants also submit
that Mr. Sirak’s actions, in reporting his income for tax purposes prior
to the accident, demonstrate dishonesty. In the circumstances, the defendants
say the court should be cautious about accepting his evidence of his injuries
and, by extension, the opinions of the experts which are based, to a large
degree, upon what they were told by him.

[126]     For
certain years prior to the accident, Mr. Sirak reported income of $20,000
for tax purposes when, in fact, his income was higher. He testified he did so
on the advice, of his then accountant, Richard Fonagy, a trustee in bankruptcy,
or both. The tax returns were overdue, he was facing a large tax bill from CRA
and, as a result, he had declared bankruptcy. He said he was advised that, in
these circumstances, it made no difference how much income he reported and
either Mr. Fonagy or the trustee suggested he report $20,000 for each year.
I accept Mr. Sirak’s explanation. The documentary evidence established
that he did, in fact, submit these tax returns late. The assessments indicate
that Mr. Sirak’s income tax returns, for the years 2001 through 2005, were
all assessed on the same day: November 6, 2006. Further, the fact that the very
same income amount (precisely $20,000) was assessed each year is consistent
with Mr. Sirak’s explanation that the tax returns were submitted on a pro
forma basis, and were not intended by him to be a representation of his
actual income.

[127]     Mr. Sirak’s
account, at trial, of his post-accident symptoms was not shown to have been
inconsistent, in any material way. His testimony, at trial, was not shown to
have been inconsistent with any prior account given by him in his examination
for discovery, or to any of his treating physicians, or any of the experts. His
testimony was corroborated by his lay witnesses, whose evidence I accept. It
was not contradicted by the lay witnesses called by the defendants. Mr. Sirak’s
evidence of his symptoms, their progression, and the impact they have on his
ability to work was also corroborated by the video surveillance evidence.

[128]     In
addition, there was objective of evidence of Mr. Sirak’s injuries which
included CT scans, MRIs, positive Spurlings signs, and restrictions in his
range of motion noted by various medical practitioners. Mr. Kerr did
extensive work-capacity testing, and opined that the results of the testing,
and his clinical observations, showed Mr. Sirak participated with high
levels of effort. None of the experts noted any abnormal or overt pain
behaviour.

[129]     I found Mr. Sirak
to be a precise and forthright witness. He answered questions directly. He was
not evasive or vague, and was not shown to have any tendency towards
exaggeration. To the contrary, he was matter of fact and unflappable. I found Mr. Sirak
to be very credible, and I accept his evidence.

Causation

Legal Principles

[130]     Mr. Sirak
must prove, on a balance of probabilities, that the accident caused his
injuries. The test for causation, established in Athey v. Leonati,
[1996] 3 S.C.R. 458 at paras. 13-17, is the “but for” test. This requires Mr. Sirak
to establish that it is, more likely than not, that but for the accident, he
would not have suffered the injuries underlying his claim.

[131]     Mr. Sirak
does not have to establish that the accident is the sole cause of the injuries.
So long as a plaintiff proves that a defendant’s negligence is part of the
cause of an injury, beyond the “de minimis” range, the defendant will be fully
liable for the harm suffered, even if other causal factors, which the defendant
is not responsible for, contributed to the harm: Athey; Blackwater v.
Plint, 2005 SCC 58; Resurfice Corp. v. Hanke, 2007 SCC 7; Clements
v. Clements, 2012 SCC 32; Farrant v. Laktin, 2011 BCCA 336.

Causation Findings

[132]     I have no
hesitation in finding that, since the accident, Mr. Sirak has suffered
from pain and neurological symptoms, as he described in his testimony, and as
he related to his treating physicians and the other expert witnesses. For the
reasons already explained, I found Mr. Sirak to be a credible witness, and
I accept his evidence concerning his physical symptoms, their progression, and
the resulting impact on his functionality. His testimony, in this respect, was
consistent with the opinions of Drs. Klein, Sahjpaul and Giantomaso, which I
accept. In short, I reject the submission that Mr. Sirak has exaggerated
his symptoms.

[133]     I find
that, since the accident, Mr. Sirak has suffered from ongoing and
progressively increasing headaches; neck pain and back pain (primarily lower
back but occasionally mid back); numbness, tingling, and pain radiating from
his shoulders down his arms; numbness, tingling, and pain radiating down his
legs; and numbness and tingling in his forearms and hands. There are some
differences, among the medical experts, as to the specific nature of these
conditions and their severity. Where such differences exist, for the reasons
expressed below, I prefer the evidence of the plaintiff’s experts, over that of
the defendants.

[134]     While all
the medical experts agreed that Mr. Sirak suffered from soft-tissue
injuries to his neck and back that are myofascial in nature, Dr. Sahjpaul
also diagnosed both cervical and lumbar nerve-root compression. Dr. Giantomaso
concurred with that diagnosis at least as it pertains to the lumbar spine.

[135]     On the
other hand, Dr. Dommisse diagnosed a grade II strain, which he said
reflected his conclusion that Mr. Sirak had suffered a soft-tissue injury
without nerve and/or spinal cord damage. While he acknowledged Mr. Sirak’s
subjective complaints of neurological symptoms, it was his view that Mr. Sirak
did not have objective symptoms of a nerve injury and, in the absence of
objective symptoms, the neurological symptoms may have been caused by muscle
spasm. However, in his own report, he characterized Mr. Sirak’s CT scans
as showing, among other things, possible irritation of the right C6 root, “mild
to moderate left L3 exiting nerve root impingement” and “moderate L4 traversing
root impingement”.

[136]     Dr. Turnbull
referred to Mr. Sirak’s injuries as “soft-tissue injuries”. In his report,
he did not explicitly state an opinion as to whether Mr. Sirak had
sustained a nerve injury, but he did say that he did not think Mr. Sirak
would benefit from surgery, “unless his spondylotic changes were to progress to
the point where he is developing abnormalities of his spinal cord or spinal
nerves”. As already noted, in cross examination, he agreed that the kinds of
abnormalities referred to by Dr. Sahjpaul in his consultation report as
“nerve-root compression” are the kinds of abnormalities that would suggest
there would be some benefit from surgical treatment. The inference I draw is
that indications of nerve -root impingement or nerve-root compression on a CT
scan or MRI suggest nerve damage. Thus, I do not accept Dr. Dommisse’s
conclusion that there were no objective symptoms of nerve damage.

[137]     In my
view, Sr. Sahjpaul, as a currently-practicing neurologist, is the medical
expert best qualified to opine on the question of whether Mr. Sirak
suffered nerve-root compression as well as soft-tissue injuries. Dr. Giantomaso
agreed with Dr. Sahjpaul with regard to the lumbar spine. With respect to
the cervical spine, in cross-examination he explained that, on the day he
examined Mr. Sirak, he was unable to reproduce consistent nerve-root
tension signs at the cervical level, but he said that did not mean Mr. Sirak
did not, at one time, exhibit such signs. Dr. Turnbull did not expressly
opine that there was no nerve damage, but the inference to be drawn from his
testimony is that the indications from the diagnostic imaging suggest nerve
damage. In all the circumstances, I prefer Dr. Sahjpaul’s opinion about
the nerve damage and symptoms. Mr. Sirak has established, on a balance of
probabilities, that in addition to the soft-tissue injuries, he suffered both
cervical and lumbar nerve-root compression as a result of the accident.

[138]     In any
event, while the existence of nerve-root compression may be relevant to the
advisability of undergoing surgery, whether or not Mr. Sirak actually has
either cervical or lumbar nerve-root compression, is ultimately of little
significance. The medical experts all agree that, given the length of time that
Mr. Sirak’s symptoms have persisted, his condition is appropriately
characterized as chronic neck and back pain that will not be eliminated by
surgery.

[139]     The other
area of some disagreement, among the experts, is whether and to what extent Mr. Sirak
is disabled. I will address this in more detail in the section of this judgment
dealing with Mr. Sirak’s claim for damages for loss of income earning
capacity. However, I also mention it here because the severity of Mr. Sirak’s
condition corresponds with the extent of his disability.

[140]     In their
reports, Dr. Dommisse and Dr. Turnbull both expressed the opinion
that Mr. Sirak is not disabled. These opinions are perplexing because it
is apparent from their reports that Dr. Dommisse and Dr. Turnbull were
aware that Mr. Sirak was limited in his ability to work. Dr. Dommisse
noted that Mr. Sirak had stopped bricklaying after the accident, and that
his pain was aggravated by working overhead and working on a ladder. Dr. Turnbull
noted, in his report, that Mr. Sirak was working “on and off as a
painter”, on average four hours a day, and only three or four days a week. Both
Dr. Dommisse and Dr. Turnbull agreed, in cross-examination, that if Mr. Sirak
was limited in his ability to work in the manner and to the extent he had
worked before the accident, then it would be appropriate to characterize him as
disabled. Further, their opinions were based on their interviews and
examinations of Mr. Sirak, which took place over the course of about an
hour and-a-half for Dr. Dommisse and about an hour for Dr. Turnbull.
The nature and extent of their inquiries pales in comparison to the work-capacity
evaluations conducted by Mr. Kerr, who expressed the view that Mr. Sirak
was significantly disabled. For these reasons, I do not accept the opinions of Dr. Dommisse
and Dr. Turnbull as to Mr. Sirak’s disability.

[141]     In the
circumstances, I find that Mr. Sirak has established that he has suffered
from, and continues to suffer from, very significant and progressively
worsening debilitating pain and neurological symptoms as summarized above. The
next task is to determine whether Mr. Sirak has established that the
accident caused these conditions. As noted above, he does not have to prove
that the accident was the sole cause. So long as he proves the accident is part
of the cause, beyond the de minimis range, the defendants are liable.

[142]     The
defendants submit that any significantly disabling symptoms suffered by Mr. Sirak
are attributable to pre-existing degenerative changes to his back that they say
were intermittently symptomatic for many years before the accident. I will
address this submission in more detail in the next section of this judgment.
For now, it is sufficient to note that, with the exception of the neurological
symptoms in his forearms, which Dr. Sahjpaul and Dr. Giantomaso
referred to as “ulnar neuropathy”, all the medical experts agreed the accident
was, at least, part of the cause of Mr. Sirak’s conditions. Dr. Sahjpaul
and Dr. Giantomaso both expressed unqualified opinions that all of the
injuries, other than the ulnar neuropathy, were caused by the accident. While Dr. Dommisse
and Dr. Turnbull expressed the view that Mr. Sirak’s underlying
degenerative condition was a cause, they both clearly stated the accident was
also part of the cause. In the circumstances, I find that, except for the ulnar
neuropathy, the accident caused Mr. Sirak’s soft-tissue injuries, his
progressively worsening debilitating pain, cervical and lumbar nerve-root
compression, and associated neurological symptoms. On the basis of Dr. Sahjpaul’s
opinion, I also find that his cervical and lumbar herniated discs were either
caused by, or rendered symptomatic, by the accident.

Assessment of Damages

Legal Principles

[143]     Once
causation has been established, the analysis shifts to the rules of damages
which determine the monetary amount of the defendants’ liability.

[144]     In
assessing damages, it is often necessary to consider hypothetical events, such
as whether the plaintiff’s condition is likely to improve, or whether the
plaintiff would have been compromised by a pre-existing condition, even if the
accident had not occurred. These hypothetical events are contingencies that
must be taken into account, so long as the evidence establishes the occurrence
of the contingency as a realistic, as opposed to a speculative, possibility.
While past events must be established on a balance of probabilities,
hypothetical events are given weight in the assessment of damages according to
their relative likelihood: Athey, para. 27.

[145]    
The quantum of damages awarded should be such as required to place the
plaintiff in his original position; that is, in the position he would have been
absent the defendants’ negligence: Athey, para. 32. The defendant
need not put the plaintiff in a better position than his original position, and
should not compensate the plaintiff for any damages he would have suffered
anyway: Blackwater, para. 78.

[146]    
The task of ensuring that a damages award returns the plaintiff to his
original position, but no better, requires a comparison of the plaintiff’s
original position, including any pre-existing condition, with his position
after, and as a result of the accident. If there is a measurable risk that the
pre-existing condition would have detrimentally affected the plaintiff, even
without the defendants’ negligence, that risk must be taken into account, and
would result in a reduction in the damages award. However, where no such
measurable risk is established, the fact that a pre-existing condition may have
made the plaintiff more vulnerable to sustaining the injury caused by the
defendants’ negligence will not serve to reduce the damage award: Athey,
para. 35. As stated by Ballance J. in S.R. v. Trasolini, 2013 BCSC
1135 at para. 160:

It is no answer for a defendant
to say that the plaintiff would have suffered less injury or a different kind
of injury or no injury at all if he or she had been less susceptible or
vulnerable. It is the foreseeable impact of the Accident on the actual
plaintiff and not on a fictional one that is relevant for compensatory
purposes: Athey.

[147]     In this
case, two contingencies arise that have potential application to the assessment
of all the heads of damage claimed by Mr. Sirak. First, would the
pre-existing degenerative changes in Mr. Sirak’s back have detrimentally
affected him in any event, even if the accident had not occurred? Second, what
is the chance that Mr. Sirak’s condition will be improved by undergoing
one or both of the surgeries recommended by Dr. Sahjpaul?

The Pre-existing Condition

[148]     The weight
of the medical evidence supports the conclusion that Mr. Sirak did have
pre-existing degenerative changes in his spine. Drs. Sahjpaul, Giantomaso and
Turnbull referred to this condition as spondylosis. However, there is very
little evidence that this condition was at all symptomatic prior to the
accident.

[149]     The only
evidence of any pre-existing symptoms is Dr. Dawydiak’s clinical record
from 1999, noting that on Mr. Sirak’s first visit with him, Mr. Sirak
reported occasional neck pain, low back pain, left leg pain and headaches.
Other references in Dr. Dawydiak’s records to pain were most often
associated with prior chiropractic treatment. Mr. Sirak denied having pain
or headaches of any significance prior to the accident. He said he went to see
the chiropractor to release stiffness. His testimony, in this regard, is
corroborated by the fact that there is no mention of any neck pain, back pain,
headaches, or neurological symptoms in the clinical records of Dr. Klein
in the years before the accident. While it is reasonable to assume Mr. Sirak
would have had occasional headaches, and the kinds of muscle aches and pains
one would expect from a person engaged in physical labour, I find that Mr. Sirak
did not suffer from any material pre-existing symptoms.

[150]     Further,
there is simply no evidence of any risk that Mr. Sirak’s pre-existing
degenerative changes would ever have become symptomatic. Neither Dr. Dommisse
nor Dr. Turnbull expressed any opinion at all on this question. In
contrast, Dr. Sahjpaul was firm in his opinion that the degenerative
changes would not have become symptomatic but for the accident. He explained
that these kinds of degenerative changes are very common in the general
population and are “not predictably correlated with clinical symptoms”. He was
not cross-examined on his aspect of his opinion.

[151]     While it
is possible the degenerative changes or spondylosis might have rendered Mr. Sirak
more susceptible to the kinds of injuries he sustained in the accident, the
evidence does not establish any measurable risk that he would have sustained
those injuries but for the accident.

The Surgeries Recommended by Dr. Sahjpaul

[152]     The
question that arises, with respect to the surgeries recommended by Dr. Sahjpaul,
is whether there is a realistic, as opposed to a speculative, possibility they
will alter Mr. Sirak’s condition. If so, this is a contingency that must
be taken into account in assessing Mr. Sirak’s damages. I note,
parenthetically, that the defendants did not submit, at trial, that Mr. Sirak’s
failure to undergo one or both surgeries amounted to a failure to mitigate.
Given the varying medical opinions as to the advisability of proceeding with
the surgeries, it could not be said that Mr. Sirak has acted unreasonably
in not yet deciding to proceed. However, it must be determined whether there is
a realistic possibility that Mr. Sirak will undergo the surgeries and his
condition will be altered as a result.

[153]     Even Dr. Sahjpaul
expressed uncertainty about the expected outcomes. It was his view that Mr. Sirak
would experience significant, but incomplete improvement, in the symptoms in
his arms and legs, but that improvement in his back pain and neck pain was
unlikely. He said he could not predict whether Mr. Sirak’s symptoms would
improve enough to translate into a meaningful change in his current ability to
work.

[154]     Dr. Giantomaso
expressed the view that surgery was not advisable. In his view, it is doubtful
surgery would provide any significant benefits. To the contrary, his opinion
was that, at best, surgery would maintain his current symptoms, or at worst,
would result in increased pain or complications. Similarly, Dr. Klein
professed to being “reasonably confident” that even if Mr. Sirak had the
surgery, he would most likely be left with most of his symptoms.

[155]     The
evidence of the defence experts does not contribute much to the analysis. Dr. Dommisse
did not address the question of surgery. Dr. Turnbull addressed it very
briefly, stating that Mr. Sirak would not benefit from surgery unless he
progressed to the point of developing abnormalities of his spinal cord or
spinal nerves. Dr. Turnbull acknowledged that there were indications, from
the diagnostic imaging, that Mr. Sirak had developed such abnormalities, but
he did not go on to express a clear opinion as to the advisability of surgery
for Mr. Sirak.

[156]     Mr. Sirak’s
intentions, with respect to surgery, are far from clear. At one point Mr. Sirak
testified he “needs to have the surgery”, but he gave various explanations for
not having proceeded with it. The inference I draw from the whole of his
evidence is that he remains undecided as to whether to proceed with one or both
of the surgeries. If Mr. Sirak does proceed with one or both of the
surgeries, he will have extended periods of increased disability while he is
recovering.

[157]     Having
considered all of the evidence, it is apparent the potential for surgery gives
rise to both positive and negative contingencies. Mr. Sirak may decide,
reasonably, not to undergo the surgeries at all. If he decides to undergo the
surgeries, he may experience some improvement. On the other hand, he may find
his condition worsened, he may experience complications, and he will have
extended periods of increased disability following each surgery. In all of the
circumstances, it is my view that the positive contingencies are offset by the
negative contingencies. As a result, in this case, the prospect of surgery is
not a contingency that would appropriately be factored into the assessment of
damages.

Non-Pecuniary Damages

[158]     An award
of non-pecuniary damages is intended to compensate for pain and suffering, loss
of enjoyment of life, and/or loss of amenities. In Stapley v. Hejslet,
2006 BCCA 34 at para. 46, leave to appeal ref’d [2006] SCCA No. 100,
the Court of Appeal set out a non-exhaustive list of factors to be considered
in determining the amount of non-pecuniary damages to award. That list includes
the age of the plaintiff, the nature of the injury, the severity and duration
of the pain, the extent of disability, the existence of emotional suffering,
the loss or impairment of life, the impairment of relationships, the impairment
of physical and mental abilities, and the loss of lifestyle. All of these
factors come into play in determining non-pecuniary damages in Mr. Sirak’s
case.

[159]     Mr. Sirak
is a middle aged man. He was 45 years old when the accident occurred and is now
55 years old. Prior to the accident, he was healthy, energetic and physically
active. It is apparent from the lay witnesses, who testified on his behalf,
that he was a cheerful, happy, outgoing person who enjoyed life and had many
friends. His family was important to him and he enjoyed spending time with
them. He enjoyed participating in a wide range of recreational activities. He
worked long hours in a physically-demanding career, and had earned the respect
of those in the construction industry in the Squamish and Whistler area.

[160]     For the
past ten years, Mr. Sirak has suffered from severe, disabling, and progressively
worsening pain and neurological symptoms. These symptoms have very
significantly affected all aspects of his life. Even if he undergoes surgery,
he is unlikely to experience any substantial improvement. His condition is most
likely permanent. He faces many years of ongoing pain and compromised
lifestyle. His personality has been affected. He has gained weight. His sleep
has been affected. His appearance has changed. He has become sloppy and
unkempt. He can no longer participate in most of the recreational activities he
previously enjoyed. He cannot play with his grandchildren in the physical,
rambunctious way that was his pre-accident nature. This, in particular, has
caused emotional suffering. He has become quiet and socially withdrawn. He now spends
most of his time alone.

[161]     It has
become increasingly difficult for Mr. Sirak to continue to work as a
painter or in any physical job. He has suffered financial consequences as a
result, which will be addressed in the next section of this judgment, but this
has affected his enjoyment of life in other ways as well. First, he has had to
force himself to continue to work on a part-time basis so that he is able to
support himself and his son, but this has further compromised his health and
exacerbated his pain. Second, he has had to live with the prospect that his
injuries will eventually preclude him from working in any physical job. Given
his limited formal education, and now limited functionality, his options for
more sedentary work are few. It is apparent, from a consideration of the whole
of his evidence, that this reality, together with his poor prognosis, has
weighed heavily on him, and has had an adverse effect on his overall emotional
well-being.

[162]     Both
counsel have provided me with a number of cases to assist in determining the
appropriate award of non-pecuniary damages. Counsel for Mr. Sirak submits
his authorities support an award in the range of $200,000 to $225,000. Counsel
for the defendant submits his authorities support an award in the range of $55,000
to $85,000.

[163]     With one
exception, the authorities relied upon by Mr. Sirak involved cases of
herniated discs that resulted in surgery or cases of chronic pain. In some of
those cases, the non-pecuniary damage award was reduced to reflect a measurable
risk that the plaintiff’s condition would have deteriorated in any event. In
those cases, non-pecuniary damages of between $110,000 and $160,000 were
awarded (before deduction for the measurable risk, and before any adjustment
for inflation). Counsel for Mr. Sirak also referred to Scoates v.
Dermott, 2012 BCSC 485. In that case, the non-pecuniary damage award was
$250,000 but, in addition to orthopedic injuries, that plaintiff also suffered
a traumatic brain injury which significantly distinguishes that case from Mr. Sirak’s
case.

[164]     Most of
the authorities relied upon by the defendants involved cases of soft-tissue
injuries. In some of those cases, the injuries were not severe enough to result
in a significant diminishment of the plaintiff’s ability to work (e.g. Graydon
v. Harris, 2013 BCSC 182, aff’d 2014 BCCA 412; and Johnson v. Kitchener,
2012 BCSC 1796). Two of the authorities relied upon by the defendants did
involve disc herniations, but in both cases, the herniated disc occurred at a
single level in the spine, whereas Mr. Sirak suffers from both cervical
and lumbar herniated discs. In one of those cases, (Morrison v. Gauthier,
2009 BCSC 1271), while the plaintiff’s injuries were significant enough to
prevent her from engaging in very high-level athletics, they were not
significant enough to prevent her from continuing her pre-accident work at the
same “high level”.

[165]     There are
aspects of all of the cases referred to by counsel which are helpful, but they
all have features which distinguish them. Having said that, the cases referred
to by Mr. Sirak’s counsel, with the exception of Scoates, concern
plaintiffs whose conditions have impacted their lives to an extent which more
closely resembles Mr. Sirak’s situation. Of all the cases relied upon by Mr. Sirak
and the defendants, in my view, the most similar, in terms of the factors
relevant to non-pecuniary damages, is Cantin v. Peterson, 2012 BCSC 549.
In that case, non-pecuniary damages of $150,000 were awarded after a reduction
to reflect the finding the plaintiff’s physical condition would likely have
deteriorated, in any event, due to a pre-existing condition.

[166]     In this
case, the evidence is equivocal as to whether the accident actually caused Mr. Sirak’s
herniated discs, or whether it rendered them symptomatic. I accept Dr. Sahjpaul’s
opinion that it was one or the other and, in my view, it does not matter which
it is. What does matter is that, in addition to the very significant and
persisting soft-tissue injuries, Mr. Sirak has also suffered the neurological
symptoms associated with the now symptomatic herniated discs. While Mr. Sirak
has not actually undergone surgery, he has suffered very disabling pain for
several years which has very significantly limited his enjoyment of all aspects
of his life, and whether or not he undergoes surgery, he will almost certainly
be left with permanent, chronic, and disabling neck and back pain.

[167]     Awards of
damages in other cases provide a guideline only. Ultimately, each case turns on
its own facts. Having considered the extent of Mr. Sirak’s injuries, and
all of the cases presented by counsel, I am of the view that an award of
$160,000 for non-pecuniary damages is appropriate in this case.

Loss of Income Earning Capacity

Legal Principles

[168]     Past
income loss and future income loss are both properly considered as components
of lost or impaired income earning capacity: Ibbitson v. Cooper, 2012
BCCA 249 at para. 13; and Falati v. Smith, 2010 BCSC 465 at para. 39,
aff’d 2011 BCCA 45.

[169]     The
principles governing the assessment of loss of income earning capacity claims
have been articulated most clearly in judgments dealing with future losses: for
example, Schenker v. Scott, 2014 BCCA 203; Meghji v. British Columbia
(Ministry of Transportation and Highways), 2014 BCCA 105; Morgan v. Galbraith,
2013 BCCA 305; Jurczak v. Mauro, 2013 BCCA 507; and Perren v. Lalari,
2010 BCCA 140. However, the same principles apply to both the past and the
future. They include the following:

(a)      Assessing
damages for loss of income earning capacity typically involves the
consideration of what actually happened in the past, what would have happened
in the past had the impairment not occurred, what would have happened in the
future had the impairment not occurred, and what will happen in the future
given that the impairment has occurred. Again, the standard of proof relating
to actual past events is a balance of probabilities, but simple probability is
the standard applicable to hypothetical events which will be considered as long
as there was or is a real and substantial possibility they would have or will
occur: Athey, para. 27; and Smith v. Knudsen, 2004 BCCA 613
at para. 29.

(b)      The
plaintiff must first establish an impairment to his or her earning capacity and
a real and substantial possibility that the impairment has and/or will result
in a pecuniary loss: Perren, para. 32.

(c)      Having
done so, the plaintiff is entitled to compensation for the loss or impairment
of his or her earning capacity as a capital asset: Rosvold v. Dunlop,
2001 BCCA 1 at para. 8.

(d)      The
process of valuing the loss or impairment is an assessment and not a
mathematical calculation; however, mathematical, statistical and/or economic
evidence may assist in the analysis and, if that is the case, the court should
start by considering such evidence: Schenker, para. 53; and Jurczak,
paras. 35-37.

(e)      Having
done so, the overall fairness and reasonableness of the award must be
considered, taking into account all “possibilities and probabilities, chances,
opportunities and risks”: Rosvold, paras. 8-11.

Analysis

[170]    
Applying these principles to Mr. Sirak’s claims, for both past and
future loss of income earning capacity, is somewhat challenging because he is a
self-employed small-business person who has not maintained complete business
records. While I accept his evidence as to the manner in which he conducted his
business, both before and after the accident, that evidence was, as one would
expect, somewhat general in nature. The process of making specific findings
about his income and expenses, at particular times, was complicated by the
following:

(a)           
For the reasons already mentioned, Mr. Sirak’s tax returns for the
years up to 2005 are not reliable evidence of his income. Mr. Fonagy also
prepared Mr. Sirak’s income tax returns for the next several years, but
from an analysis of Mr. Sirak’s bank statements prepared by Mr. Hines
for the trial, it appears that he did so inaccurately. Mr. Sirak
subsequently retained a new accountant, Lewis Picco, who prepared his tax
returns for 2012 and 2013, and resubmitted a corrected return for 2011.

(b)           
Some of Mr. Sirak’s income has been earned in cash and Mr. Sirak
did not maintain records of the cash payments. Mr. Sirak testified that,
both before and after the accident, the vast majority of his invoices were paid
by cheque, but he estimated that about 10% of his business revenues were
received in the form of cash. He testified that, both before and after the
accident, he deposited all the cheques and the larger cash payments into the
same bank account at the Squamish Credit Union, but that he retained the
smaller cash payments, which he used to purchase items such as groceries and gas.

(c)           
Receipts for business expenses were not available for many of the
relevant years. Mr. Sirak testified that when he was working with Mr. Fonagy,
he gave Mr. Fonagy all his records, including expense receipts and that
most of them were never returned. However, expense summaries prepared by Mr. Fonagy,
and records from Cloverdale Paint, the store where Mr. Sirak purchased
most of his materials and supplies, were available, and they provide an
evidentiary foundation for many of Mr. Sirak’s business expenses. Of more
significance is the fact most of Mr. Sirak’s subcontractors were paid in
cash, and no documents recording those payments were maintained.

(d)           
Mr. Sirak submits that, notwithstanding these challenges, he has
established a claim of $350,000 for past loss of income earning capacity, and a
claim of $700,000 for future loss of income earning capacity.

[171]     The
defendants submit that Mr. Sirak’s conduct, in reporting his income
inaccurately for income tax purposes, demonstrates an attempt, on his part. to
characterize his income differently depending on the circumstances. As a
result, the defendants submit the court should be cautious about accepting Mr. Sirak’s
testimony regarding his income. I do not agree with this submission. For the
reasons already explained, I found Mr. Sirak to be a credible witness. I
accept his explanation for the inaccuracies in the tax returns prepared by Mr. Fonagy.

[172]     The
defendants also submit Mr. Sirak has not demonstrated, on a balance of
probabilities, what his actual income was prior to the accident and since. In
the circumstances, the defendants submit he has not established that he
suffered a past pecuniary loss. Relying on the opinions of Dr. Dommisse
and Dr. Turnbull, as well as the video surveillance, the defendants submit
Mr. Sirak has not established any ongoing impairment to his earning
capacity. In the alternative, the defendants submit that if Mr. Sirak has
established he has an ongoing impairment that affects his ability to work as a
painter, then a modest award for loss of future earning capacity would be
appropriate.

[173]     It is
clear that Mr. Sirak’s work as a painter requires heavy lifting,
flexibility, dexterity, strength and physical endurance. The injuries he
sustained in the accident are permanent and have made it progressively more
difficult for him to perform almost all aspects of his work. This was apparent
from his own testimony, which was corroborated by Ms. McMurran, Mr. Smillie
and the video surveillance. While he has continued to paint for financial
reasons, he has had to substantially reduce his hours to approximately 50% of
his pre-accident hours. He has turned down larger projects. When he does work,
he does so notwithstanding the pain. I accept Mr. Kerr’s opinion that Mr. Sirak
is no longer suited to the physical demands of a painter.

[174]     I do not
accept the opinions of Dr. Dommisse and Dr. Turnbull as to whether Mr. Sirak
is disabled. While both of them expressed the view, in their reports, that he
is not disabled, they both agreed, in cross-examination, that if Mr. Sirak
is limited in his ability to meet the physical challenges of his work, it would
be appropriate to characterize him as disabled. I prefer the opinions of Dr. Klein,
Dr. Sahjpaul, Dr. Giantomaso and Mr. Kerr, and find that Mr. Sirak’s
injuries have clearly resulted in substantial functional and occupational
limitations which are likely to be permanent, even if he decides to undergo one
or both of the surgeries recommended by Dr. Sahjpaul.

[175]     Prior to
the accident, Mr. Sirak had planned to work to at least age 70. He has no
savings or pensions. Since the accident, he has considered alternative
occupations. He looked into the possibility of becoming a house inspector,
however, he does not have the formal educational requirements. He looked into
the possibility of working as a janitor for an apartment complex, but this
would have been in exchange for reduced rent, and he would receive no cash
income. He continues painting because he is not qualified for anything else.

[176]     It is
apparent, from Ms. Sharma’s evidence, that Mr. Sirak’s options for
alternate work are extremely limited. It is likely he could work in a sedentary
job as a clerk, but if he is able to secure such a job, it is likely it will
not pay more than minimum wage. He has a grade nine education, and is limited
in his English language skills. I accept Ms. Sharma’s opinion that, given
his low vocational test scores, difficulty with English spelling and writing,
physical limitations and age, formal academic retraining programs are not
likely to improve Mr. Sirak’s options.

[177]     Having
considered all the evidence, particularly that of Dr. Sahjpaul, Dr. Giantomaso
and Mr. Kerr, I find that it is very likely, whether or not he undergoes
surgery, that Mr. Sirak will have to further reduce the hours he works as
a painter, and further delegate to others the more physically-challenging
aspects of painting, or cease painting altogether, and seek alternate
employment performing a sedentary job as a clerk at what is likely to be no
more than minimum wage.

[178]     For these
reasons, I have no difficulty in finding that Mr. Sirak has established
that, as a result of the injuries suffered in the accident, his income earning
capacity has been impaired, that the impairment is permanent, and that the
impairment has resulted in a past pecuniary loss and will continue to result in
future pecuniary losses. The difficulty lies with the valuation of those
losses.

Past loss of income earning capacity

[179]     A claim
for past loss of income earning capacity is based on the value of the work that
the injured plaintiff would have performed, but was unable to perform, because
of the injury: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30.
One method of assessing this value is to project the net income the plaintiff
would have earned in the time period between the accident and the trial, had
the accident not occurred, taking into account all realistic contingencies, and
to award the difference between that projected net income and the actual net
income earned by the plaintiff during that time period. I will refer to this as
the projected earnings approach. Another method, which is sometimes used to
assess past loss of income earning capacity, has been referred to as the cost
of labour approach. Under this approach, the value of the impairment is
assessed by calculating the cost of funding an employee who could undertake the
tasks the plaintiff is no longer able to do, again taking into account all
realistic contingencies: Ostrikoff v. Oliveria, 2014 BCSC 531 at paras. 191
and 205.

[180]     Mr. Sirak
submits both approaches support an assessment of his past income earning
capacity at $350,000. Before addressing Mr. Sirak’s submissions, it is
helpful to set out the following findings, which I make on the basis of Mr. Sirak’s
testimony and the documents noted below:

(a)      Mr. Sirak
has had only one bank account, the account at the Squamish Credit Union, since
well before the accident.

(b)      Mr. Sirak
did both contract work and hourly work. For hourly jobs, the customer provided
the materials, and Mr. Sirak charged $25 an hour for his labour. For
contract work, Mr. Sirak provided the materials and he charged $35 an hour
for his labour.

(c)      Mr. Sirak
was most often paid for his work by cheque. Approximately 10% of his revenues
were received in cash. He deposited all the cheques and the larger cash payments
into his bank account.

(d)      Most
of Mr. Sirak’s business expenses were paid for out of his bank account.
The principal exceptions were payments to subcontractors, many of which were
made in cash.

(e)      For
certain years, including 2002 to 2004, Mr. Fonagy created lists of
expenses corresponding to debits noted on Mr. Sirak’s bank statements.

(f)       Mr. Sirak
purchased most of his materials and painting supplies from the Cloverdale Paint
store in Squamish. Cloverdale Paint records show Mr. Sirak’s total annual
purchases in the years from 2004 to 2013.

(g)      Before the accident, Mr. Sirak
worked approximately 60 hours per week during the summer season (which he
characterized as between March and the middle of October), and 35 to 40 hours
per week during the winter season. Since the accident, he has only worked 20 to
30 hours per week throughout the year.

[181]     Michael
Hines, a chartered accountant, provided an analysis of Mr. Sirak’s annual
gross business income for the years up to and including 2012, based on the
deposits to Mr. Sirak’s bank account, but also accounting for GST/HST
refunds, child tax credits, and two known non-work related deposits. His
evidence was not contradicted or undermined at trial, and I accept it.

[182]     Douglas
Hildebrand, an economist, prepared three reports, one of which reported average
earnings data for British Columbia males working as self-employed painters in
2011. His evidence was not contradicted or undermined at trial, and I accept
it.

[183]     Employing
a projected earnings approach, Mr. Sirak submits his past loss of income
earning capacity can be valued in the following manner:

(a)      First,
he says his actual net income in the three years prior to the accident provides
context, and demonstrates his ability to earn income as a self-employed
painter. He posits three alternative scenarios for determining his pre-accident
net income, each of which involves subtracting estimates of his business
expenses from his gross business revenues. Each scenario assumes gross business
revenues consisting of the sum of the deposits to his bank account, and an
amount reflecting Mr. Sirak’s estimate of the cash payments that were
never deposited. Three alternative bases are suggested for estimating his
business expenses. In the first two scenarios, his expenses are assumed to be
an estimate of cash amounts paid to subcontractors, plus one of two variations
of the lists of actual expenses noted in Mr. Fonagy’s working papers. In
the final scenario, Mr. Sirak’s expenses were estimated in accordance with
his testimony that approximately 90% of his work was contract work, and of the
revenues generated from the contract work, approximately 40% represented his
expenses. These three scenarios generate estimated annual average net income
for 2002, 2003 and 2004 (the three years prior to the accident) of between
$46,000 and $55,000, or an average of approximately $50,000 per year.

(b)      Second,
Mr. Sirak says his actual net income in the years after the accident can
be determined through the use of two similar scenarios. For 2013, Mr. Sirak’s
gross business revenue and business expenses were derived from the tax return
prepared by Mr. Picco for that year. For each year from 2005 to 2012, each
scenario assumes that Mr. Sirak’s gross business revenues are the sum of
the business income calculated by Mr. Hines, and an amount reflecting Mr. Sirak’s
estimate of the cash payments that were never deposited to his bank account.
Two alternative bases are suggested for estimating his business expenses for
these years. In the first scenario, his expenses are assumed to be an estimate
of cash amounts paid to subcontractors, plus the actual expenses noted on the
Cloverdale Paint summaries. In the second scenario, Mr. Sirak’s expenses
were estimated in accordance with his testimony, that approximately 90% of his
work was contract work, and of the revenues generated from the contract work,
approximately 40% represented his expenses. Both of these two scenarios
generate estimated annual average net income of approximately $17,000 for the
years from 2005 to 2013.

(c)      Third,
for each year between the accident and the trial, Mr. Sirak projects net
income amounts that he says he would have earned, but for the accident. These
amounts are based on a number of assumptions. He submits that the actual net
income calculations for the pre-accident time period (step one above),
demonstrate that his business was growing. He was securing progressively larger
contracts by 2004/05, and was offered several large contracts after the
accident which he had to turn down. Other witnesses testified as to his good
reputation as a painter. He submits that all this evidence supports the
inference that, but for the accident, he would have earned net income in 2005
(the year of the accident) similar to that earned in 2004; and, thereafter, he
would have earned a progressively larger net income each year until 2011, by
which time he would have been earning at least $61,609, which Mr. Hildebrand
reported was the average income of a self-employed painter. On this basis, Mr. Sirak
projects potential net income of $50,000 in 2005, increasing to approximately
$67,000 in 2014.

(d)      Fourth,
for each year between the accident and the trial, Mr. Sirak submits his
annual income loss can be estimated by deducting the actual net income amounts
estimated in step two from the potential net income amounts projected in step
three. This generates an estimate of total past net income loss of
approximately $350,000 between the accident and trial.

[184]     Mr. Sirak
says a similar result is obtained through use of the cost of replacement labour
approach to valuing his loss. He submits it would be appropriate to value his
past loss of earning capacity by calculating the value of the hours he is no
longer able to work. His counsel presented a range of “lost hours”, based on a
summer season consisting of about 33 weeks (plus two weeks of summer holidays),
and a winter season consisting of about 17 weeks, and a range of annual values
for those lost hours, depending on whether they are valued at $25 an hour or
$35 an hour. This generated a range of annual replacement costs of between
$27,000 and $58,000, which translates to a range of total replacement costs of
between $250,000 and $550,000. The median of that range is about $400,000.

[185]     In my
view, the cost of replacement labour approach is not sufficiently grounded in
the evidence. I did not take, from Mr. Sirak’s evidence of his usual hours
of work and his typical hourly rates, that he was actually able to charge
either $25 an hour or $35 an hour for each and every working hour. Some of his
time would have to have been spent on non-billable activities, such as
performing estimates, driving to work sites and purchasing supplies. If Mr. Sirak
worked 60 hours a week for 33 weeks, and 35 hours a week for 17 weeks, that
would amount to approximately 2500 hours per year. If he was able to charge
even just $25 an hour for each of those hours, he would have generated net
income of over $62,000, which significantly exceeds even his calculation of his
average pre-accident net income of approximately $50,000 per year.

[186]    
The projected earnings approach proposed by Mr. Sirak is more
reasonable, but some of the assumptions upon which it is based are speculative.
The assumptions about Mr. Sirak’s actual annual gross revenues, both
before and after the accident were, in my view, grounded in the evidence. They
were based, primarily on Mr. Sirak’s testimony that the vast majority of
his gross revenues were deposited into his bank account, and that all but a
very few of the deposits into that bank account, consisted of business
revenues, which I accept. However, two aspects of the expense calculations are
problematic.

[187]     First, I
am not persuaded that Mr. Sirak’s estimate of his expenses, comprising 40%
of 90% of his gross revenues, was reliable. The most reliable evidence of Mr. Sirak’s
income was the evidence of Mr. Picco who calculated his income for tax
purposes for 2011, 2012 and 2013. Mr. Picco testified that in 2013, Mr. Sirak
had some unusually high car expenses. Leaving 2013 aside as not representative
of a typical year, the tax returns for 2011 and 2012 show net income of roughly
50% of gross income. This suggests that, calculating Mr. Sirak’s expenses
as 40% of 90% of his gross revenues, understates the expenses.

[188]     Second,
while the expense calculations that were based on Mr. Fonagy’s working
papers in the pre-accident time period, and the Cloverdale Paint records in the
post-accident time period were grounded in the evidence, the same cannot be
said for all the estimates of the cash paid to the subcontractors. Mr. Sirak’s
calculations included cash paid to subcontractors in the following amounts, in
the following years:

[189]    
In the years after 2007, this is not a significant issue because Mr. Sirak’s
use of subcontractors diminished significantly. The question is whether there
is an adequate basis in the evidence to support the amounts for 2002 through
2007.

[190]     Mr. Sirak
testified, in quite general terms, about his use of subcontractors. He said he
used them to a significant extent in 2005 in order to complete the large
project he had committed to prior to the accident. He also testified that Ms. McMurran
often worked with him. He did not testify about the actual amounts he paid in
cash to subcontractors.

[191]     Ms. McMurran
testified that, in the approximately three years between 2002 and the fall of
2004, she worked with Mr. Sirak full time. She said there were two other
subcontractors who occasionally worked with Mr. Sirak during this time
period. She said she was paid $12 an hour, in cash. If Ms. McMurran worked
40 hours a week during the 33 summer weeks, and 30 hours a week during the 17
winter weeks, that would amount to 1830 hours of work per year. At $12 an hour,
that would have generated an income to her of approximately $22,000, and a
corresponding cost to Mr. Sirak. There would have been additional payments
to the other two subcontractors mentioned by Ms. McMurran. From this, it
is apparent that Mr. Sirak’s estimates of the cash paid to subcontractors
in the years 2002, 2003 and 2004 were understated by at least about $15,000 per
year. An increase in his expenses of $15,000 would reduce his estimated annual
pre-accident net income from an average of approximately $50,000 to
approximately $35,000.

[192]     While I do
not accept Mr. Sirak’s estimates of cash paid to subcontractors in the
years prior to the accident, his estimates for the years after the accident
are, in my view, supported by the evidence. First, I accept Mr. Sirak’s
evidence that he relied on subcontractors in 2005 to complete the project he
had committed to prior to the accident. From Ms. McMurran’s evidence, it
is apparent that a single full-time subcontractor would cost Mr. Sirak
approximately $22,000 a year. As such, $30,000 as an estimate for cash paid to
subcontractors in 2005 is reasonable. Ms. McMurran testified that she
returned to work with Mr. Sirak in the summer of 2006, and continued to
work with him for slightly more than a year, through to September 2007. As
such, the estimate of $25,000 for cash paid to subcontractors over the two
years 2006 and 2007 is reasonable.

[193]     For these
reasons, I find that Mr. Sirak has established, on a balance of
probabilities, an average post-accident annual net business income of
approximately $17,000. However, I find that his average pre-accident annual net
business income, over the years 2002 to 2004 was not $50,000, but rather, was
closer to $35,000. This amount corresponds with Mr. Sirak’s explanation,
in cross-examination, about not charging GST during this time period because he
was earning around $35,000 a year. It is also roughly double his average post-accident
annual net business income of $17,000, which is consistent with his evidence
that he has been working about half the hours he used to work.

[194]     The next
question requires an assessment of the likelihood that, had the accident not
occurred, Mr. Sirak would have earned net income of approximately $50,000
in 2005, increasing to approximately $61,000 by 2011, and $67,000 by 2014.

[195]     I do
accept that Mr. Sirak’s income in 2005 and 2006 would have exceeded the
$35,000 I have found has been established as his average net income in the
three years prior to the accident. It is clear, from the evidence of his gross
revenues, that 2004 was his best year of the three pre-accident years. I accept
his evidence that before the accident he was starting to secure larger contracts
and that he turned down several large jobs after the accident. Had the accident
not occurred, it is very likely that, in 2005 and 2006, he would have completed
additional large projects, and he would not have relied as heavily on
subcontractors.

[196]     Having
said all of that, I do not think it is likely that Mr. Sirak would have
increased his income from an average of $35,000 in the years before the
accident to over $60,000 by 2011. He was working at full capacity before the
accident, and regardless of the number of large projects he secured, it is not
reasonable to assume he could have worked more than approximately 2500 hours in
a year. Of course, it would have been possible for him to retain a crew of
subcontractors, and to focus more on managing the business, but given his
aptitudes (as attested to by Ms. Sharma), and the fact he has not done so
since the accident, it is not likely he would have done so on a substantial
scale. There was no evidence that, in the pre-accident time period, Mr. Sirak
had ever achieved earnings that approached the statistical average. It is
entirely speculative to assume he would have done so by 2011.

[197]     Having
considered all the evidence, and taking into account the reasonable likelihood
that Mr. Sirak would have experienced some growth in his business in the
years between the accident and trial, I find that if the accident had not
occurred, Mr. Sirak’s annual earnings would likely have approached $55,000
by the time of the trial. Taking into account the fact that Mr. Sirak’s
business had not grown steadily in the three years prior to the accident (gross
revenues in 2003 were less than in 2002 but then increased again in 2004), that
growth would not likely have been linear. Rather, it is likely that in some
years his income would have declined from what it had been the prior year.

[198]     If Mr. Sirak’s
past loss of income earning capacity was valued at the difference between his
pre-accident average net income of $35,000 per year and his post-accident
average net income of approximately $17,000 a year, multiplied by the number of
years between the accident and the trial, it would amount to approximately
$170,000. Considering my finding that, if the accident had not occurred, Mr. Sirak
would likely have been earning income approaching $55,000 by the time of the
trial, recognizing this is an assessment and not purely a mathematical
calculation, and considering the overall fairness and reasonableness of the
matter, I assess Mr. Sirak’s past loss of income earning capacity in the
amount of $220,000.

[199]     Pursuant
to section 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231,
a plaintiff is entitled to recover only his or her past net income loss: Rizzolo
v. Brett, 2009 BCSC 732 at para. 72, aff’d 2010 BCCA 398. If the
parties are unable to reach agreement on the amount to be deducted from this
award, by reason of this provision, they may apply for further directions.

Future loss of income earning capacity

[200]     As
discussed above, in assessing a claim for future loss of income earning
capacity, the first question is whether there is a substantial possibility of a
future income loss. If the plaintiff discharges that burden, then the loss must
be assessed, taking into account all positive and negative realistic
contingencies. The assessment may employ what has been referred to as an
“earnings approach”, or a “capital asset approach”: Schenker, paras. 50-51;
Morgan, para. 53; and Perren, para. 32.

[201]     The
earnings approach is generally appropriate where the plaintiff has some
earnings history, and where the court can reasonably estimate what his/her
likely future earning capacity will be: Perren, para. 32. This
approach typically involves an assessment of the plaintiff’s estimated annual
income loss, multiplied by the remaining years of work, and then discounted to
reflect current value; or, alternatively, awarding the plaintiff’s entire
annual income for a year or two: Pallos v. Insurance Corp. of British
Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.) at para. 43; and Gilbert
v. Bottle, 2011 BCSC 1389 at para. 233. While there is a more
mathematical component to this approach, the assessment of damages is still a
matter of judgment, not mere calculation, and all realistic contingencies must
be taken into account.

[202]     The
capital asset approach, which is typically used in cases in which the plaintiff
has no clear earnings history, involves consideration of a number of factors
such as whether the plaintiff has been rendered less capable overall of earning
income from all types of employment, is less marketable or attractive as a
potential employee, has lost the ability to take advantage of all job
opportunities that might otherwise have been open, and is less valuable to
herself as a person capable of earning income in a competitive labour market: Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) at para. 8; Gilbert,
para. 233; and Morgan, paras. 53 and 56.

[203]     In my
view, given Mr. Sirak’s earnings history, and very limited future
employment options, the earnings approach is more appropriate in this case.

[204]     Mr. Sirak’s
claim for future loss of income earning capacity is based on the following
submissions:

(a)      at
the time of the accident, Mr. Sirak’s business was growing;

(b)      but
for the accident, by 2011 he would have earned at least the average income of a
self-employed painter, and by 2014 his annual net business income would have
approached $67,000;

(c)      but
for the accident, he would have worked to at least age 70; and

(d)      Mr. Sirak’s
residual ability to earn income is limited to $10,000 annually.

[205]     Employing
an earnings approach to the assessment of his loss, Mr. Sirak submits he
has been left with an annual income loss of $57,000 per year for each of the
approximately 15 years between the trial and his 70th birthday. Applying the
multiplier reflected in one of Mr. Hildebrand’s reports generates a
present value of his future income loss at $683,430 for income earned up to the
age of 70. Mr. Sirak submits that an upward adjustment to that amount must
be made to reflect the possibility that he would have continued to work past
the age of 70. Thus, he claims a total of $700,000 in future loss of income
earning capacity.

[206]     As already
noted, relying on the opinions of Dr. Dommisse and Dr. Turnbull, the
defendants submit that Mr. Sirak has not established any ongoing
impairment to his earning capacity. In the alternative, the defendants submit
that, if Mr. Sirak has established he has an ongoing impairment that
affects his ability to work as a painter, then given the concerns already noted
with respect to his business records, the fair way to assess his damages for
future loss of income earning capacity would be to award him an amount equal to
his annual income for one or more years. Measured this way, the defendants
submit that an appropriate award for loss of future earning capacity would be
in the range of $50,000 to $75,000.

[207]     For the
reasons already expressed, I do not accept the opinions of Dr. Dommisse
and Dr. Turnbull. As already discussed, Mr. Sirak has established
that, as a result of the injuries suffered in the accident, his income earning
capacity has been impaired, that the impairment is permanent, and that the
impairment will continue to result in future pecuniary losses. It is very
unlikely he will be able to continue painting and his alternative options are
extremely limited.

[208]     I have
already found that, at the time of the accident, Mr. Sirak’s business was
growing. However, I have also found it is unlikely that by 2011 he would have
earned the average income of a self-employed painter. I have found that, by the
time of the trial, his annual earning capacity would have approached $55,000.
In my view, but for the accident, it is likely that Mr. Sirak would have
continued to earn average annual net income of approximately $55,000. It is
possible he would have continued to grow his business beyond that amount, but
it is also possible that, as he aged, he would have slowed down in any event.

[209]     I have
already found that Mr. Sirak planned to work to at least the age of 70. While
it is possible he would have worked beyond the age of 70, in my view, that
contingency is offset by the possibility he may have stopped working before the
age of 70.

[210]     Although Mr. Sirak
has earned an average of $17,000 a year since the accident, it is likely,
whether or not he undergoes surgery, he will have to further reduce the hours
he works as a painter, and further delegate to others the more physically-challenging
aspects of painting, or cease painting altogether, and seek alternate
employment performing a sedentary job as a clerk, at what is likely to be no
more than minimum wage. It is possible he will be successful in finding a
sedentary job which permits full-time work at minimum wage. However, his need
for accommodation may negatively impact his prospects even for that kind of
job. As Ms. Sharma opined, he is not competitively employable. Thus, it is
also possible he will be limited to part-time work, that his ability to work in
any job will progressively diminish due to the progression of his injuries, or
that he will simply be unable to secure alternate employment. In addition, if
he proceeds with one or both of the surgeries, he will be off work entirely for
several months of convalescence. Having considered all of these possibilities,
I agree that Mr. Sirak’s residual earning capacity is likely limited to
$10,000 per year.

[211]     Having
considered all of the above-noted contingencies, I find Mr. Sirak’s future
loss of income earning capacity has an annual value of approximately $45,000 a
year. It would be appropriate, in my view, to project that earning level over
the 15 years from the trial to Mr. Sirak’s 70th birthday. If a multiplier
of 11,990 is employed, as reflected in Mr. Hildebrand’s report, the result
is a present value of $539,550.

[212]     My findings,
regarding Mr. Sirak’s residual earning capacity, reflect the stoicism and
perseverance demonstrated by Mr. Sirak in continuing to work in the face
of, what I accept, has been very significant pain. Having heard and considered
the evidence of Dr. Klein, Dr. Sahjpaul, Dr. Giantomaso and Mr. Kerr,
I have no difficulty in concluding that many people in Mr. Sirak’s
situation would have been unable to continue to work in the way he has done.
Notwithstanding his past perseverance, in my view, there is a very real
prospect that, in the near future, he will simply be unable to work in any
capacity. When account is taken of all the evidence; all the contingencies,
both positive and negative, noted above; and the overall fairness and
reasonableness of the award, I assess Mr. Sirak’s claim for future loss of
earning capacity in the amount of $550,000.

Cost of Future Care

[213]     Mr. Sirak
is entitled to compensation for the cost of future care based on what is
reasonably necessary to restore him to his pre-accident condition, insofar as
that is possible. The award is to be based on what is reasonably necessary, on
the medical evidence, to preserve and promote the plaintiff’s mental and
physical health: Gignac v. Insurance Corporation of British Columbia,
2012 BCCA 351 at paras. 29-30.

[214]     The test
for assessing an appropriate award for the cost of future care is an objective
one based on the medical evidence. It is twofold: first, there must be a
medical justification for the cost; and second, the claim must be reasonable: Tsalamandris
v. McLeod, 2012 BCCA 239 at paras. 62-63. The fact that justified
costs are expensive is not a factor to be considered by the court: Cantin,
para. 90.

[215]    
In Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para. 21,
the Supreme Court of Canada emphasized that an assessment of damages for cost
of future care is not a precise accounting exercise:

Damages for cost of future care
are a matter of prediction. No one knows the future. Yet the rule that damages
must be assessed once and for all at the time of trial (subject to modification
on appeal) requires courts to peer into the future and fix the damages for
future care as best they can. In doing so, courts rely on the evidence as to
what care is likely to be in the injured person’s best interest. Then they
calculate the present cost of providing that care and may make an adjustment
for the contingency that the future may differ from what the evidence at trial
indicates.

[216]     As already
noted, Mr. Kerr performed a cost of future care assessment for Mr. Sirak.
In his April 21, 2013 report, Mr. Kerr provided his recommendations of the
services that are reasonably necessary to promote Mr. Sirak’s health and
his opinions as to the costs of those services. He was not cross-examined on
these matters at trial, and there is no contrary evidence tendered by the
defendants.

[217]     Mr. Kerr
recommended the following services, irrespective of whether Mr. Sirak
undergoes surgery:

(a)      IMS
style physiotherapy with a frequency ranging from two to four times per month
at a cost of between $2,860 and $5,720 per year, ongoing;

(b)      massage
therapy with a frequency of 12 to 18 times per year at a cost of between $900
and $1,350 per year, ongoing;

(c)      chiropractor
treatments with a frequency of twice a month at a cost of $840 per year,
ongoing;

(d)      homemaking
services for two hours per week at a cost of $2,600 per year, ongoing;

(e)      seasonal
cleaning of 16 to 20 hours per year for heavier tasks not covered in the weekly
homemaking services, at a cost of between $400 and $500 per year, ongoing;

(f)       potential
yard work, in the event that Mr. Sirak moves to a place requiring same, at
a cost of $1,600 per year, ongoing;

(g)      job-search
services at a cost of between $1,350 and $2,000, one time;

(h)      a
community pool pass at a cost of between $400 and $500 per year, ongoing; and

(i)       a
personal trainer/kinesiologist to assist in developing an exercise program at a
one-time cost of $1,800, plus periodic follow-up at a cost of between $600 and
$750 every three years, ongoing.

[218]     Mr. Kerr
recommended the following additional services in the event Mr. Sirak
undergoes surgery which would be incurred, in his view, on both occasions if Mr. Sirak
undergoes two separate surgeries:

(a)      pre-surgery
physiotherapy three times a week for three weeks prior to the surgery at a cost
of $2,640, one time;

(b)      post-surgery
physiotherapy three times a week for three months following the surgery at a
cost of $2,640, one time;

(c)      additional
homemaking services of six hours per week for three weeks following the surgery
at a cost of $450, one time; and

(d)      ongoing
additional periodic physiotherapy to treat acute flare-ups with a frequency of
12 sessions per year at a cost of $660, ongoing.

[219]     Dr. Giantomaso
recommended active rehabilitation, including aerobic and resistance training.
In Dr. Klein’s opinion, as expressed in his October 30, 2012 and May 3,
2013 reports, Mr. Sirak will likely require, and benefit from, ongoing
massage and IMS-style physiotherapy for the remainder of his life. Dr. Klein
also concurred with Mr. Kerr’s views as to the nature and frequency of the
services that are reasonably necessary to promote Mr. Sirak’s health.
Finally, Dr. Klein expressed the view that while Mr. Sirak is not
currently using much in the way of medications, “it is not unreasonable to
assume that at some future point the benefits of these medications might
outweigh their detriments and side effects, such that Mr. Sirak may well,
at that point, elect to commence and continue with analgesic therapy”. In Dr. Klein’s
view, such medications could cost several thousands of dollars per year, noting
that a one-year’s prescription for Butrans would cost approximately $2,400.

[220]     Mr. Hildebrand
calculated the present-day value of the costs of the services recommended by Mr. Kerr.
Where Mr. Kerr indicated a range of costs, Mr. Hildebrand applied the
midpoint of the range. Leaving aside the costs associated with surgery, Mr. Hildebrand
calculated the present value of the cost of the services recommended by Mr. Kerr
at approximately $245,000. (His report actually stated $259,957, but this
included annual job-search costs, as opposed to recognizing the job-search
costs were one time only. When an adjustment is made for that error, the amount
is approximately $245,000). This amount reflected IMS-style physiotherapy,
massage therapy, chiropractor treatments, a community pool pass, and a personal
trainer/kinesiologist ongoing for life. However, the homemaking, seasonal
cleaning and yard-work services were truncated at age 80 to reflect the
possibility of Mr. Sirak living in a situation in which the services are
no longer required as he ages. Mr. Hildebrand calculated the present value
of the services recommended by Mr. Kerr following surgery at $19,500.

[221]     Mr. Sirak
submits that, while he may not undergo either of the surgeries recommended by Dr. Sahjpaul,
there is a possibility he will undergo both surgeries. In the circumstances, he
submits it would be appropriate to include the cost of one surgery to reflect
these contingencies. On the basis of Mr. Hildebrand’s analysis, this would
amount to a present-day cost of approximately $265,000. Mr. Hildebrand did
not assess Mr. Sirak’s future medication costs. Given Dr. Klein’s
evidence regarding the cost of Butrans, Mr. Sirak claims a further $2,000
per year for medications which, using the multipliers provided by Mr. Hildebrand,
amounts to a present-day cost of $41,776. Considering contingencies associated
with the cost of the medications, and the other vagaries of life, Mr. Sirak
claims a total of $280,000 under this head of damages.

[222]     The
defendants submit, on the basis of the opinions of Dr. Dommisse and Dr. Turnbull,
that no further treatments are warranted except for radiographically- guided
injections, and an independent exercise program as recommended by Dr. Dommisse.
In the circumstances, the defendants submit that Mr. Sirak’s claims for
any other items under this head of damages should be dismissed, and that a
nominal amount, in the order of $5,000, to reflect the services referred to by Dr. Dommisse
would be appropriate.

[223]     For the
reasons already expressed, I prefer the opinions of Dr. Klein, Dr. Sahjpaul,
Dr. Giantomaso and Mr. Kerr over those of Dr. Dommisse and Dr. Turnbull.
I have found that Mr. Sirak’s injuries continue to cause him significant
ongoing pain, and other symptoms that have resulted in substantial functional
and occupational limitations, which are likely to be permanent. Further, the
opinions of Dr. Dommisse and Dr. Turnbull about future treatments do
not reflect their evidence at trial that, given the length of time that Mr. Sirak’s
symptoms have persisted, his condition is appropriately characterized as
chronic pain. I am satisfied, from the evidence of Dr. Giantomaso, Dr. Klein
and Mr. Kerr, that there is a medical justification for each of the items
claimed by Mr. Sirak under this head of damages. The next question is
whether each of the claims is reasonable. This involves assessing the
likelihood that the costs will be incurred.

[224]     As already
noted, leaving aside the costs associated with surgery, Mr. Hildebrand
calculated the present value of the cost of the services recommended by Mr. Kerr,
at approximately $245,000. This amount included $31,579 for potential yard work
in the event that Mr. Sirak moves to a place requiring same. There was no
evidence led at trial as to Mr. Sirak’s intentions in this regard. In the
circumstances, it is impossible to assess the likelihood that this cost will be
incurred. As such, I find that Mr. Sirak has not established his claim to
the costs associated with yard work.

[225]     Mr. Hildebrand’s
assessment of the costs of IMS-style physiotherapy, massage therapy and
chiropractor treatments reflect an assumption that Mr. Sirak will undergo
IMS-physiotherapy approximately three times per month, massage therapy slightly
more than once per month, and chiropractor treatments two times a month, for a
total of approximately six manual therapy sessions each month for the rest of
his life. There are contingencies that will reasonably affect Mr. Sirak’s
ongoing participation in these kinds of therapies, particularly at that
frequency. These contingencies reflect the likely waxing and waning of his
symptoms, the normal vicissitudes of life and the consequences of aging. I would
reduce the present-value cost of these three items by 25% to reflect those
contingencies.

[226]     I am
satisfied as to the reasonableness of the other non-surgery related costs.
After making adjustments to reflect my findings, with respect to the yard work
and the manual therapies, the present value, excluding the surgery-related
costs, is $180,052.

[227]     Turning
then to the surgery-related costs, I agree with Mr. Sirak that including
the additional costs related to one surgery would be appropriate given the
negative contingency that he may not undergo any surgery and the positive
contingency that he may undergo two surgeries. However, I am not satisfied
there is any real likelihood Mr. Sirak will incur the cost of further
ongoing physiotherapy, in addition to the physiotherapy already accounted for
above, and the more intensive pre-surgery and post-surgery physiotherapy.
Accordingly, I would not allow the $660 annual claim for ongoing additional
periodic physiotherapy. After making that adjustment, the present value of the
surgery-related costs is $5,714.

[228]     I agree
with Mr. Sirak regarding the reasonableness of a claim for the cost of
future medications. However, his claim of $2,000 annually, for life, does not,
in my view, adequately reflect Mr. Sirak’s demonstrated reluctance to use
pain medication. Of course, it is reasonably likely that his aversion to pain
medications will change in the future as his symptoms progress and as he ages,
but it is my view that $1,000 per year for life better reflects these
contingencies. Using Mr. Hildebrand’s multiplier, this results in a
present value cost of $20,888.

[229]     For these
reasons, I assess Mr. Sirak’s cost of future care at $206,000, which
reflects the non-surgery related costs of approximately $180,000, the surgery-
related costs of approximately $5,700 and the medication costs of approximately
$21,000.

In Trust Claim

[230]     Mr. Sirak
submits he has had to rely on Ms. McMurran to assist him. He advances an
in-trust claim of $20,000.

[231]     It is well-settled
that a plaintiff can recover an amount to reflect the assistance provided by
family members. However, such claims “must be carefully scrutinized” to ensure
that the services provided were necessitated by the plaintiff’s injuries and
they go over and above what would normally be expected from the family
relationship: Dykeman v. Porohowski, 2010 BCCA 36 at para. 29; and Bystedt
(Guardian ad litem of) v. Hay, 20012 BCSC 1735 at para. 180, aff’d
2004 BCCA 124.

[232]     Ms. McMurran
testified she has helped Mr. Sirak with housesitting, dog walking and occasional
grocery shopping. She testified she has cleaned his house a few times, she and
her husband spent two days organizing his garage, and she has had to attend to
him on a few occasions because of his pain. In addition, her husband and
father-in-law testified they helped Mr. Sirak move. In my view, these are
the kinds of services that would normally be expected of an adult child, and
they do not go above and beyond the normal give-and-take that exists between
family members.

[233]     Ms. McMurran
also testified that, since the summer of 2009, she has assisted Mr. Sirak
with his work on occasion, but has not kept track of her hours because she does
not expect to be paid. Nevertheless, Mr. Sirak has given her cash from
time to time. While assisting Mr. Sirak with his work may go beyond what
would normally be expected from the family relationship, there is an inadequate
evidentiary foundation to assess the extent to which Ms. McMurran has
actually assisted Mr. Sirak with his work without being paid.

[234]     For the
above reasons, Mr. Sirak’s in-trust claim is dismissed.

Special Damages

[235]     Mr. Sirak
is entitled to recover the reasonable out-of-pocket expenses he incurred, as a
result of the car accident, as special damages. He claims special damages in
the amount of $25,795.39. This reflects costs he incurred for chiropractic
treatments, massage therapy, acupuncture treatments, physiotherapy,
prescription medications, and a variety of other miscellaneous items.

[236]     The
defendants do not take issue with the reasonableness or cost of any of the
items claimed as special damages. However, the defendants submit that only the
expenses incurred up to January 27, 2010, when Mr. Sirak underwent the
independent medical examination of Dr. Dommisse are warranted. This
submission is based on Dr. Dommisse’s view, as expressed in his report,
that no further passive modalities of treatment were warranted. For the reasons
already expressed, I do not accept Dr. Dommisse’s opinion.

[237]     In the
circumstances I award Mr. Sirak $25,795.39 as special damages.

Conclusion

[238]    
In summary, the damages awarded to Mr. Sirak are as follows:

[239]    
If the parties are unable to agree on costs, they may speak to that
issue.

“Warren
J.”