IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160225

Docket: M122794

Registry:
Vancouver

Between:

Roberto Angelo
Pavan

Plaintiff

And

Remo Guolo and
Canusa Limos Ltd.

Defendants

Before:
The Honourable Mr. Justice Butler

Reasons for Judgment

[1]            
The plaintiff Roberto Pavan was injured on September 22, 2010, when the
car he was driving collided with a limousine driven by Mr. Guolo. By agreement,
the issue of liability for the motor vehicle accident was determined in a
separate trial. In the decision indexed as Pavan v. Guolo, 2016 BCSC 23,
Burnyeat J. found the defendants to be entirely at fault for the accident. This
action proceeded before me to determine damages.

Background

[2]            
The circumstances of the accident are set out in detail in the liability
decision and I need not repeat them here. The court determined that the
defendant driver entered the intersection on a red light which led to a violent
collision in which the plaintiff’s vehicle T-boned the limousine and was spun
around causing a second impact between the vehicles. Both vehicles were written
off by ICBC as a result of the extensive damage caused by the accident.

[3]            
In the accident, the plaintiff suffered soft tissue injuries to his
upper back, right shoulder, right arm and lower back. He worked as an energy
trader for Powerex and continues to work in that position today. He missed two
days of work following the accident and returned to work about a week later. In
spite of ongoing discomfort, he missed only one additional day of work which he
attributes to symptoms from the accident. He is not advancing a claim for past
or future income loss. It is now five and a half years since the accident. He
is still experiencing discomfort and loss of function which he attributes to
the injuries suffered in the accident. The defendants say that any injuries
suffered in the accident resolved long ago and that the symptoms suffered by
the plaintiff in the last few years are not related to the accident.

[4]            
While there is some dispute about special damages, the main issue before
this Court is assessment of the non-pecuniary damages. The amount to be awarded
depends to a large extent on the findings I make regarding the nature of the
injuries sustained in the accident and the duration of symptoms suffered by the
plaintiff as a result of those injuries. In the reasons that follow I will set
out the parties’ positions, my findings of fact and the reasons for my
decision.

Position of the Parties

[5]            
The plaintiff says he suffered soft tissue injuries to his upper back
and neck, right arm and lower back and that the resulting symptoms have
persisted for five and a half years. While the injuries have not prevented him
from working or carrying on his usual activities at home, they have affected
his recreational pursuits and the persistence of his symptoms has had a
significant effect on his enjoyment of life. He frequently experiences
discomfort in his low back and shoulder and both areas are subject to relapses
or flare-ups. His ability to play hockey and take part in other physical
activities that he formerly enjoyed has been adversely impacted by his
injuries. Those activities were very important to him. Given the length of time
since the accident, he says there is little prospect for a complete recovery
and accordingly says the range of damages is $50,000 to $70,000.

[6]            
The defendants say that the range of damages in this case is $25,000 to
$30,000. They admit that the plaintiff suffered a grade 2 strain to his upper
back including his right shoulder. He also had a strain to his right elbow
which persisted for some time. However, the defendants say that the main
injuries resolved within 12 to 18 months. The defendants deny that the
plaintiff suffered a low back strain of any significance in the accident. To
the extent that the plaintiff has ongoing complaints, the defendants say they
were not caused by any injury received in the accident.

Findings of Fact regarding the Nature of Injuries and Duration of Symptoms

[7]            
Before turning to the evidence and my findings regarding the plaintiff’s
injuries, I will set out important background information about the plaintiff’s
work and family life. The plaintiff is now 47 years old. He has worked as an
hourly energy trader for almost ten years. It is a stressful job. Powerex
trades energy with other jurisdictions in North America 24 hours a day. The
energy traders monitor six to eight computer screens with market information in
order to assess British Columbia’s need to buy or capacity to sell energy on an
hourly basis. It requires intense focus and instant decision-making. The
traders work one of three shifts: an early morning shift which lasts nine and a
half hours, a shorter afternoon shift and a night shift. The traders all work a
variety of these shifts which are assigned weeks in advance. The plaintiff has
been successful at the job and is regarded highly by his colleagues. His
ability to perform the job has not been affected by the accident. However, he
says that he now has to stretch out his back and shoulder during work hours
when they stiffen up and that he does this frequently. His work colleagues
confirmed that he does perform stretches frequently and that he uses ice packs
on his lower back on occasion.

[8]            
The plaintiff met his spouse in 2004 and they had two young children at
the time of the accident. He now has three children: an eight-year-old
daughter, a six-year-old son and a daughter who is almost three. The family has
been under considerable stress ever since the accident. Within a week or two of
the accident their son, who was only eight months old, was diagnosed with
asthma. They have had a very difficult time managing his condition. They have
had to take him to multiple doctor’s appointments and hospital visits. If
anything, the problem has deteriorated since diagnosis. In 2014, their son was
diagnosed with very severe nut allergies and this has caused additional stress.

[9]            
Their youngest daughter was also diagnosed with asthma at a very young
age. Like her brother, she has been prescribed Ventolin and oral steroids and
must go to numerous medical appointments. The stress on the family has been
exasperated by health issues suffered by Ms. Hamilton, the plaintiff’s wife,
and by their parents. In the same time period, the plaintiff’s father went
through a difficult illness and passed away.

[10]        
Ms. Hamilton works part time as a lawyer in Vancouver. The couple have
an extremely busy family life aside from all of the health difficulties. They
have challenging jobs. All of the children are involved in extracurricular
activities and the two oldest are in school. The plaintiff is actively involved
in the home life and the children’s activities. He does the majority of the
cooking for the family. They share the overall family responsibilities evenly.
The symptoms from the motor vehicle accident have not prevented him from doing
his share of those responsibilities.

[11]        
I have highlighted these facts for two reasons. First, the plaintiff
argues that he has been unable to pursue recreational activities, and in
particular, hockey as a result of the ongoing symptoms from the injuries
suffered in the accident. As I will explain, I am of the view that the main
reason he is not as active in hockey and other pursuits is that he has
prioritized his family and work. Second, I can draw an inference about the
nature and severity of his injury symptoms from his ability to continue to work
at a difficult stressful job and participate fully in an extremely busy family
life.

[12]        
I will now turn to a description of the plaintiff’s injuries and
symptoms. In doing so I will set out my findings of fact. For reasons which I
will explain, I had the benefit of limited medical evidence. This is not a case
where diagnosis and prognosis of the plaintiff’s injuries can be resolved by
consideration of conflicting medical opinions.

[13]        
Dr. Carol Story, the plaintiff’s current family physician, was qualified
as an expert and permitted to give opinion evidence. However, she first saw the
plaintiff in the summer of 2015, almost five years after the accident. She took
over the practice of his former physician Dr. Sent, who did not testify. Dr.
Story could not give factual evidence regarding medical examinations during the
first four years and ten months after the accident and this affected her
ability to provide useful opinion evidence. Quite reasonably, she accepted the
diagnosis made by Dr. Sent following the accident and acknowledged the
limitations to her ability to offer opinions regarding diagnosis and prognosis.
Her report contains the following qualification:

Please note that my opinion in
this regard [diagnosis and prognosis] is hampered in that I did not have the
opportunity to observe Mr. Pavan’s progress over time and in addition, he was
not seen in the office between April ‘12 and July ‘15.

[14]        
Other circumstances contributed to the lack of medical evidence. First,
the plaintiff was never referred to specialists. Second, as noted by Dr. Story,
the plaintiff did not see his family doctor between April 11, 2012 and July 23,
2015. In other words, for more than three years the plaintiff did not seek
medical attention for any injury or symptom arising from the accident. Dr.
Story assisted the court in reviewing the clinical records of Dr. Sent from the
date of the accident until April 11, 2012. Those records provide some
additional evidence of the nature of the plaintiff’s complaints during that
time period.

[15]        
In the accident, the plaintiff suffered abrasions and bruising to his
arms and wrists as a result of the deployment of air bags. The most intense
symptom initially was pain and weakness in his wrists. He was taken by
ambulance to Vancouver General Hospital emergency where he was assessed and
released. As the day progressed, the plaintiff felt stiffening in his neck and
across the top of his back and down his right side. He also developed a severe
headache which lasted for a week or two. Shortly after the accident, the right
side of his back really tightened up and he felt pain in his right arm and
biceps especially below the elbow. He had difficulty rotating his arm. It took
a few months for his mobility to start to improve, but his arms and hands
recovered enough that he was able to return to work in a week.

[16]        
The stiffness in his back and in particular, on his right side, lasted
for several months. He had trouble sleeping mainly because of persisting
shoulder pain. After a few months, the pain in his back and shoulder improved.
His sleep patterns also improved. The clinical notes of Dr. Sent support that
assertion. His most persistent complaint in the records relates to pain in his
right arm and shoulder.

[17]        
At trial, the plaintiff said that he continues to experience discomfort
in three areas; his right shoulder, low back and right arm, all of which he
attributes to the accident. He said that discomfort in these areas has
persisted since the accident. He says that in the past few years the main
problem has been the periods of aggravation or flare-ups. These included
persisting difficulties with pain in his low back. Indeed, the problems he has
experienced at work appear to be related primarily to his low back. The ice
pack which he used at work was applied to that area. He also described a number
of incidents where he experienced sharp pain in his low back or shoulder
arising from relatively innocuous movements. He has not experienced a low back
flare-up for about two years, which he attributes to proper management of those
symptoms with ice, stretching and infrequent use of Ibuprofen.

[18]        
The plaintiff argues that he has proved causation in accordance with the
authorities, including Athey v. Leonati, [1996] 3 S.C.R. 458; and Farrant
v. Laktin, 2011 BCCA 336. Of course, there is no need to prove causation
with scientific precision. In order to prove causation, the plaintiff relies on
his evidence about the progression of symptoms. I found that evidence to be
quite vague and general. He did admit to some improvement, but insists that he
has had persistent discomfort in all areas since the accident. When asked to
explain this situation, he focused on a number of incidents where his symptoms
were aggravated as a result of movements which he felt should not produce
additional pain or discomfort. He also relied on the supporting evidence given by
Ms. Hamilton and his work colleagues. Surprisingly, and contrary to the
evidence of the plaintiff, she stated that his symptoms have improved minimally
since 2010. The plaintiff’s work colleagues say that he appears to be in some
discomfort at work and that he frequently stretches and raises his desk to work
in a standing position.

[19]        
The defendants’ approach is more nuanced. They say the three areas of
injury should be looked at separately and say that most of the symptoms
resolved within two years of the accident or less. To the extent they have not
resolved, the defendants say the symptoms are not disabling and do not
seriously impair the plaintiff’s work, family or recreational activities.

[20]        
The defendants acknowledge the injury to the plaintiff’s right arm, but
say it has improved greatly and is not a significant problem. He has momentary
aggravations with physical loading but the injury is not disabling. He admits
he can lift heavier objects. For example, he can lift his three-year-old
daughter onto his shoulders. With regard to his low back, the defendants say the
plaintiff had a mild strain but that injury substantially resolved not long
after the accident. The defendants argue that the aggravations to his low back
since that time are unrelated to the accident. They say his medical history
includes prior instances of back pain and point to the lack of any medical
evidence to support the assertion that he suffered a low back injury of any
consequence in the accident. Alternatively, they say that even if the
aggravations to his low back were caused by the accident, the plaintiff is able
to manage his low back issues so that they do not impair the quality of his
life. Finally, with regard to the right shoulder and upper back, the defendants
say that the plaintiff acknowledged at his discovery in October 2013 that the problems
with his right shoulder and neck completely resolved about a year after the
accident.

[21]        
Counsel for both parties provided detailed written argument to explain
why I should accept their positions regarding the nature of the plaintiff’s
injuries and the duration of the symptoms. I thank them for the thorough and
detailed argument. I much prefer the defendants’ approach to the assessment of
causation and analysis of the evidence. In other words, it is preferable to
consider the three symptomatic areas separately and assess the development of
symptoms in light of all of the evidence including the limited medical
evidence. When I do that, I make the following findings of fact regarding
injuries and the duration of symptoms:

1)       Right
Arm:  The plaintiff suffered a strain to tendons in his right biceps. That
injury has improved significantly over time, but has not resolved and will
likely not do so. However, it is not disabling and does not significantly
impact the plaintiff’s activities. It still causes the plaintiff momentary
discomfort when he performs certain activities.

2)       Right
Shoulder:  The plaintiff suffered a grade 2 strain to his neck, upper back and
right shoulder. This was the most serious injury sustained in the accident.
That injury substantially resolved within about 18 months of the accident. The
accident left the shoulder susceptible to what the plaintiff calls flare-ups or
aggravations. The plaintiff does not have ongoing persistent pain or
discomfort. His occasional flare-ups do not last for long and are not
disabling.

3)       Low
Back:  The plaintiff suffered a very mild low back strain in the accident. That
injury resolved in a few months. The incidents of low back pain suffered by the
plaintiff since that time are unrelated to the injuries suffered in the
accident.

[22]        
I will explain why I have come to these conclusions.

[23]        
The progression of the less serious injuries can be described
succinctly. The plaintiff’s headaches cleared up after a couple of days. The
abrasions and bruising to his wrists and forearms were gone in about a month.
Three months after the accident, his mobility had increased sufficiently that
he had no difficulty driving and performing shoulder checks. His sleep was
disrupted by the injuries but that lasted for only “a month… Maybe a little
more”. (examination for discovery, question 641) By the spring or summer
of 2011, he was jogging 20 or 30 minutes at a time and walking. His low back
was fine except for perhaps one day a month when it was a little sore.

[24]        
To the extent that the plaintiff attempted to retreat from statements
made on his discovery, I reject his evidence. He was defensive and his
explanations for qualifying his previous answers were not convincing.

Right Arm

[25]        
The injury to his right arm is not resolved but does not cause problems
on a daily basis. He has no pain at rest. He told Dr. Story in 2015 that he can
lift heavier bags or his children in spite of his elbow pain and feeling
of weakness.

Right Shoulder

[26]        
The defendants rely on the plaintiff’s discovery evidence to establish
that his upper back and shoulder strain had substantially resolved after about
a year. A series of questions exploring this issue was put to the plaintiff in
cross-examination. The last question and answer in the series summarizes the
evidence accurately:

Q         Okay. So, the shoulder issue again, like the
neck and upper back, took about a year, persisted for a year, and then
gradually trailed off and is no longer an issue. Right?

A          Yes.

[27]        
The plaintiff’s attempt to recant from that evidence was not convincing.
I agree with the defendants’ submission that it would be very surprising if the
discovery evidence was not correct; the plaintiff could not have given an
incorrect statement because of forgetfulness because his statement was made
three years after the accident in support of his claim for damages. It makes no
sense that he would give false or incorrect evidence purporting to negate his
own claim of injury at a time when the injury was still continuing to affect
him.

[28]        
I should add that I do not find that the plaintiff was intentionally
trying to mislead the court. Rather, he has wrongly convinced himself that any
pain in, or aggravation to his back or shoulder, stems from the accident. This
is the same approach that his wife put forward when she said the plaintiff’s
symptoms had not improved significantly since the accident. This rather
generalized view of his injuries and symptoms has been influenced by the level
of stress and activity that the family has experienced in the last five and a
half years.

Low Back

[29]        
The plaintiff had two incidents of low back pain prior to the accident.
He was somewhat reluctant to admit to the prior incidents and when he did, he
maintained that they were quite different from the symptoms he now feels.
According to Dr. Story’s clinical notes, the plaintiff advised Dr. Story on
July 23, 2015 that he had lower back issues pre-accident but that they are now
more frequent. She could not state unequivocally that he used those words but said
she is careful to capture a patient’s history accurately and often uses their
own words. There is a similar comment to his physiotherapist in March 2012.

[30]        
The most significant evidence about his low back injury is the absence
of any diagnosis of that injury by Dr. Sent. She saw him approximately 15 times
between the accident and April 11, 2012. There are few notes specific to low
back pain, although she noted shortly after the accident that he felt pain in
his right back from his neck down to his low back. However, Dr. Sent did not
diagnose a low back strain. This is confirmed by the CL19 Medical Report
prepared by Dr. Sent following an examination on December 1, 2010, a little
over two months after the accident. There is no notation of tenderness on palpation
and no diagnosis of a low back strain. Dr. Story also confirmed that Dr. Sent
did not diagnose a low back strain. The plaintiff relies on Dr. Story’s report
and opinion but, of necessity, suggests that she is wrong about that diagnosis.
I reject that argument. It is clear that Dr. Sent carefully followed the
plaintiff’s progress and did not diagnose such an injury.

[31]        
I do not intend to go through all of the incidents when the plaintiff
allegedly suffered aggravation of the low back strain between 2012 and the present.
Having determined that the plaintiff has failed to establish that he suffered
such an injury, it is not necessary to do so. However, as a great deal of time
was spent on these incidents at trial, I will consider one of the incidents and
explain why the plaintiff’s assertion as to causation does not stand up to
examination. It is much more likely that the symptoms were caused by
intervening acts and are unrelated to the accident.

[32]        
The plaintiff alleges he suffered an aggravation of the low back injury
in a skating incident with his daughter on February 18, 2012, when he felt a
sharp pain in his back as he bent over to support her. The first and most
significant difficulty is that his argument ignores the minimal references to
low back issues prior to February 2012 and the absence of any diagnosis of a
low back strain up to that date. As Dr. Story stated in cross-examination, with
soft tissue injuries “worst is first”. In other words, it is extremely unlikely
that the first serious symptoms of a low back injury would be felt 17 months
after the accident.

[33]        
A second difficulty is that the plaintiff forgot or failed to mention
that he suffered two other more significant hockey injuries in the months
leading up to the skating incident:

1)       The
physiotherapist’s records report a complaint that he fell on the ice and
injured his shoulder five days before the incident with his daughter. The
physiotherapy records do not refer to any low back injury.

2)       On
February 15, 2012, he reported a shoulder injury to Dr. Sent which occurred in
December 2011 arising from being hit into the boards.

[34]        
These other incidents, neither of which formed part of the plaintiff’s
narrative at trial, demonstrate the plaintiff’s firmly held preconceptions
about the cause of his low back pain. He failed to consider other similar (and
more violent) impacts and the effect they might have had on his symptoms. It is
also very surprising that the alleged low back symptoms appear never to have
been reported to Dr. Sent after February 18, 2012. If the plaintiff really did
suffer an injury or strain of significance and it was part of a continuing
pattern of low back symptoms, I would have expected him to tell his physician.

[35]        
As Dr. Story confirmed, people often have low back pain from relatively
innocuous movements. The skating incident is a more likely cause of the brief
period of low back pain that the plaintiff suffered in February 2012.
Similarly, the other incidents of low back pain after 2011 were not caused by
the injuries suffered in the accident.

[36]        
My conclusion on the duration of the plaintiff’s symptoms is supported
as well by the plaintiff’s decisions not to seek medical advice for more than
three years after April 2012. There is no question that “a plaintiff whose
condition neither deteriorates nor improves is not obliged to constantly bother
busy doctors with reports that nothing has changed, particularly if the
plaintiff has no reason to expect the doctors will be able to offer any new or
different treatment”: Edmondson v. Payer, 2011 BCSC 118 at para. 37.
However, that is not the situation here. The clinical records, the plaintiff’s
reports of symptoms to his doctor, and the plaintiff’s evidence on discovery
indicate that his symptoms were improving.

[37]        
It is important to carefully examine all of the evidence when seeking to
draw an inference from the treatment sought or followed by a plaintiff. The
circumstances here are consistent with the conclusion I have reached. This is
not a case of a plaintiff who was assessed by experts and tried various
treatments to little effect. Rather, he attended his doctor on numerous
occasions in the months after the accident and she recorded his symptoms and
made a diagnosis. He was referred to physiotherapy and massage therapy. He
attended 23 treatment sessions from the date of the accident to February 2011,
during which time his symptoms improved. He then took no further treatments
until February 2012 when he started treatments again after one of the hockey
injuries. He attended at seven physiotherapy treatments between February and
June that year and sought no further treatment after that until 2015.

[38]        
Before concluding my findings of fact, I must comment on the plaintiff’s
claims regarding his reduced involvement in recreational activities. He was
reasonably active in sports before he had children. He acknowledged that his
busy home life and his shift work made it difficult for him to follow as many
recreational pursuits. This was readily apparent from the evidence. It was also
apparent that his reduced participation in hockey began well before the
accident. When he was in his mid-30s, he played a full season of 20 games of
league hockey. However, once he started at Powerex and had children, his
participation reduced. He missed one season as a result of the accident but in
2011/12 he played six games, the same number he played in the year before the
accident. The year after, he played eight games. After the 2010/11 season, I
find that his reduced participation was caused as much by the other demands on
his time as by subsequent low back injuries or aggravation of his shoulder
symptoms.

[39]        
This conclusion is supported by the history of his reduced participation
in other sports. He used to golf with friends and with Ms. Hamilton but now
plays almost no golf. He frankly admitted in cross-examination that the few
times he has golfed have not caused him pain or discomfort. He does not do the
activity because of the time commitment required. Similarly, he was going to
return to soccer a year after the accident but his team disbanded. He has not
pursued that activity again because of his other obligations.

[40]        
In summary, I conclude that the plaintiff’s reduced participation in
recreational activities is not caused primarily by the injuries sustained in
the accident. He has two real passions in his life; his family and his work. As
the plaintiff and his wife acknowledged, their lives are so busy they have
little time for other activities. The plaintiff is fully occupied with shift
work, three young children including two who require additional attention, and housekeeping,
including doing the majority of the cooking. Dedication to all of the
activities required for those passions is the main reason that he is less
involved with other activities.

[41]        
The plaintiff and Ms. Hamilton also gave evidence about psychological or
emotional changes experienced by the plaintiff since the accident. They say
that he is grumpier, less involved with the family, and is not the positive
upbeat person he was before the accident. My conclusions on this issue mirror
my conclusions about the nature and duration of his physical symptoms. During
the first eighteen months to two years, I accept that the injuries suffered in
the accident caused or contributed to emotional changes. However, after that
time any contribution to his emotional state was minor. He would have had the
same kind of emotional changes he has experienced with or without the accident.

Non-Pecuniary Damages

[42]        
The factors to consider when assessing the amount to award for
non-pecuniary damages are set out in Stapley v. Hejslet,
2006 BCCA 34. In the circumstances here, the most important factors include the
nature of the injuries, the severity and duration of the symptoms, the impact
of the injuries on the plaintiff’s recreational activities and on his family,
marital and social relationships. I have set out my findings on these issues
above.

[43]        
The plaintiff relies on the following cases for his assertion that the
range of damages is $50,000 to $70,000:

·       Brunelle
v. Yoshida, 2014 BCSC 1006;

·       Noon
v. Lawlor, 2012 BCSC 545;

·       Rahimi
v. Ma, 2014 BCSC 710;

·       Bissonnette
v. Horn, 2012 BCSC 518;

·       Suthakar
v. Humble, 2016 BCSC 155; and

·      
Connolly v. Cowie, 2012 BCSC 242.

[44]        
The defendants rely on the following cases for the assertion that the
range of damages is $25,000 to $30,000:

·       Reichennek
v. Archibald, 2008 BCSC 1304;

·       Lopez
v. VW Credit Canada Inc., 2008 BCSC 320;

·       Majewska
v. Partyka and Obelikphya, 2009 BCSC 175; and

·      
Gozra v. Wunderlich, 2009 BCSC 114.

[45]        
Of course, the appropriate award for non-pecuniary loss must take into
account, all of the particular circumstances of the plaintiff before the court.
The cases cited by counsel were helpful as a guide. I do not propose to examine
and compare those cases with the facts I have found here. I will note that the
cases relied on by the defendants involved circumstances that are somewhat
closer to the facts I have found with regard to the nature of the soft tissue
injuries with an exception. I have concluded that the plaintiff has ongoing
difficulties with his right arm, albeit relatively minor, and that his right
shoulder can still have flare-ups, which are contributed to by the injuries
suffered in the accident. Further, the cases cited by the defendants are
somewhat dated.

[46]        
When I consider all of the relevant factors in light of the facts I have
found, I conclude that a fair award for non-pecuniary damages is $40,000.

Claim for Past and Future Housekeeping Capacity

[47]        
The plaintiff says that he has proved a claim for past and future loss
of housekeeping capacity. He also argues that it is appropriate in the
circumstances of this case to make an award under a separate head of damages
for the loss of an asset. He relies on McTavish v. MacGillivray, 2000
BCCA 164; and Campbell v. Banman, 2009 BCCA 484. The factual basis for
the claim is the assertion by the plaintiff and Ms. Hamilton that he now takes
longer to perform household tasks. While recognizing that the assessment is not
to be approached as an arithmetic exercise, the plaintiff argues that he lost
about an hour a week in the past and will lose a similar amount of time in the
future because it takes him longer to do tasks. The plaintiff argues that a guideline
to determine a reasonable award is an hourly value of $25 which the plaintiff
and his wife paid for housekeeping services in the past.

[48]        
I reject the plaintiff’s submission that this is an appropriate case to
make an award for loss of housekeeping capacity under a separate head of
damages. It is possible to do so where a plaintiff proves a diminution in his
or her ability to perform household tasks. Here, the plaintiff continues to
perform all tasks. The suggestion that he works at a slightly slower pace is
highly subjective and incapable of proof. It is a frail basis upon which to
make a separate award for loss of capacity. As noted in Kroeker v. Jansen
(1995), 4 B.C.L.R. (3d) 178 (C.A.), a cautious approach must be taken to this
head of damages.

[49]        
I accept that in the first few months after the accident, it is likely
that the plaintiff was unable to perform all household tasks. Further, for
another 12 to 18 months he likely performed some tasks more slowly. However,
the appropriate way to compensate the plaintiff for this loss is to treat it as
a loss of amenities and include it in the assessment of non-pecuniary loss. I
have done that in the award set out above.

Special Damages

[50]        
The plaintiff says he has proved a loss of $4,370.61. The defendants say
the proved loss is $3,080.61. There are two reasons for this difference. The
plaintiff’s calculation includes claims for the cost of medication (Ibuprofen
and Naproxen) and physiotherapy bands for which there are no receipts, as well
as claims for physiotherapy and massage therapy sessions after February 2011.

[51]        
I accept that some of the physiotherapy sessions in 2012 related to
shoulder aggravations which were contributed to by the accident. I also accept
that the plaintiff has submitted adequate proof that he purchased physiotherapy
bands and some medication. The plaintiff’s assessment of the cost of the
medication was quite high in relation to his evidence. He stated that he did
not like to use anti-inflammatory medications and so takes them infrequently.
The suggestion that he spends $100 a year on Ibuprofen at that rate is clearly
inaccurate.

[52]        
The plaintiff is entitled to an award of $3,655.61 for special damages.
This includes the amounts acknowledged by the defendants plus an additional
$200 for expenses without receipts and five therapy sessions at $75 each.

Future Care Costs

[53]        
The plaintiff seeks an award of about $4,200 for the cost of future care,
based primarily on the cost of physiotherapy treatments for his lower back and
massage therapy for his right shoulder. Given my finding that the plaintiff
will continue to experience some episodic aggravations of his shoulder
condition, and Dr. Story’s recommendation that he receive massage therapy, it
is appropriate to award an amount for the likelihood that he will require such
sessions. On that basis I award the amount of $1,750.

Summary

[54]        
The plaintiff is entitled to $45,405.61 comprised of:

a)       Non-pecuniary damages: 
$40,000;

b)       Special damages:  $3,655.61;
and

c)       Future care costs:  $1,750.

Costs

[55]        
Subject to any submissions on costs, I would award the plaintiff costs
at Scale B.

“Butler J.”